Tales from Working at OSHA

I worked at OSHA for about 27 years. Of course, I had some stories, but I had no plans to tell them. Frank Ferreri, a news editor at Worker’s Compensation magazine, urged me to tell some stories. Here I will tell you a bit about lawsuits, and the Administrative Procedures Act, and more. 

Run-in with the federal court  

You know that people who disagree with actions by federal agencies (or even the White House) can sue in federal court. That happens from time to time at OSHA also.  

One case made a particular impression upon me. OSHA was urged to address a hazard. And OSHA thought it got it right.  Then we were sued because the plaintiff did not think we had gone far enough. The federal appeals court ordered OSHA to expand coverage of the standard to cover many more entities.  

At the time, I was supervising a group of economists in the Office of Regulatory Analysis. And I was a working supervisor. My colleagues from the Directorate of Standards and from the Office of the Solicitor understood what the court wanted. However, they did not think the original rule was a good fit for many other sectors of business. So, they were working on how to modify the rule to make a new, broader, standard a better fit. I thought this was reasonable. But it was intricate, and it took time.  

That is how we got into trouble. The plaintiff in the case thought we were dragging our feet, and went back to the Court of Appeals to complain.  The court spoke very sternly to our highly-respected and tough appellate attorney. She came back to Washington quite upset. She said that if we didn’t get this done soon, the court might send US Marshalls to arrest the Assistant Secretary for OSHA. That would be a disaster! 

Our appeals attorney’s message helped to push us forward. Ultimately, I think we issued a respectable standard to protect a lot of people from a wide range of hazards.  

The Administrative Procedures Act 

I have to mention the Administrative Procedures Act (the APA). The Act requires that way give notice to the public on what we are planning, and it requires that we give serious thought to the public’s comments.  We  got comments from the trade associations, unions, individuals, and the State-Plan States (states that run their own OSHAs with some OSHA money).  People can and do sue on the basis of our not following the APA. 

As we looked at the comments, we found a very thoughtful idea from someone in a hardware store in Pittsburgh. (This caught my eye, because in high school I lived just south of Pittsburgh.) The commenter was not from a big union or trade association. He was just some thoughtful person who saw something that we missed. His comment led to another improvement in the standard.  

I say this so you know that OSHA is obligated to give serious thought to your comments.  So, if you think you have a good point for OSHA to consider, send it in during the comment period.  By the way, you should show your reasons for proposing some refinement to the Agency’s proposed standard.  OSHA needs good reasons to do something or not to do it. 

Interaction with other agencies 

People who know OSHA probably know that it deals with various other federal agencies. The first agency that comes to my mind is the National Institute of Occupational Safety and Health (NIOSH). Since NIOSH is a research agency, not a regulatory agency, it has certain rights to enter and study a workplace that OSHA does not have. So, NIOSH can study possible hazards, and alert OSHA to those hazards.  

We occasionally helped work groups of the Office of the Surgeon General. Although, I could not help them on medical research, I helped two work groups with the presentation of statistics. I expect that our doctors and scientists also worked with other agencies. 

OSHA also interacts with the Small Business Administration’s Office of Chief Counsel for Advocacy (OCCA). That office has about 50 people in Washington, D.C., and 10 Advocates in regional offices. It is not big, but they are zealous and tenacious. I know, because I was on the receiving end.  

Two assistants to the chief council used to stop in to see me. They pushed me to be more aware of the difficulties small businesses have in understanding safety and health regulations.  

I am embarrassed to say that I was not very sympathetic. I felt that OSHA was trying its best to identify problems and solutions to those problems. But those OCCA lawyers were relentless. Now, I think of Asst. Chief Counsel Kevin Bromberg as a hero for small business. he opened my eyes, and urged me to find ways to help the business community understand complex regulations. 

In all fairness, OCCA deserves some credit for an innovation that we did in OSHA. It became an innovation adopted for other parts of the Labor Department, by the Office of the Assistant Secretary of Labor for Policy.  See https://webapps.dol.gov/elaws/index.html. 

The innovation was to begin using interactive, diagnostic systems to provide expert guidance to the public. These were “expert systems.” We called them the OSHA Advisors. OSHA’s first Advisor projects became a $20,000 Finalist in the Innovations in American Government Award competition, funded by the Ford Foundation and run by the Harvard University JFK School of Government.  

Interaction with business and labor  

Of course, OSHA is legally obliged to reach out to and listen to the public on new regulations. When we worked on new OSHA Advisors, I reached out to business and labor for input. We did this even before we announced a new Advisor for comment on it.  

I met with the regulatory policy people and attorneys in big and small trade associations. I also met with the occupational safety and health people in national labor union headquarters in D.C. Many of the trade associations and national labor unions had top notch occupational safety and health expertise. All of these people had questions and good ideas for the projects we were trying to do.  

Eye-opening meeting with three OSHA Directors 

After we released the Asbestos Advisor, I met with the (acting) directors of Health Standards,  Safety Standards, and Policy. (The last two were later merged into something else.)  We met to determine the topic for  next Advisor.  Safety Standards felt it was their turn to choose, and wanted a Confined Spaces Advisor. (This gets embarrassing.)  

I told the acting director that the standard was clearly written, so it might not need an Expert Advisor.  He said, “Edward, you have 20 years of experience analyzing federal regulations.  This one may be easy for you, but it’s still difficult for small businesses.”  He added that he got many questions from the public about Confined Spaces. I had no doubt that he was telling me the truth.  He got the Confined Spaces Advisor (on the “elaws” link above). 

Conclusion 

When I worked at OSHA, we had knowledgeable, conscientious staff working on new standards.  Nonetheless, people in business, unions, other agencies, universities, state-plan states, and the broader public had good ideas for us.  Sometimes they saw things we did not know about! 

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