Regulators Cozying Up to Regulated Industry

A story in the Washington Post over the holidays offers up a nice case study in how regulated industries and federal agencies charged with regulating them have grown far too cozy. The story drew back the curtain on how the manufacturer of a toxic metal called beryllium managed to defeat efforts by the Occupational Safety and Health Administration to establish a reasonable workplace standard, and then succeeded in corrupting an effort by an OSHA staffer to warn workers of the harms to which they were being exposed.

First some explanation. More than half a century ago, the Occupational Safety and Health Administration established a workplace standard for beryllium. Lighter than aluminum but stronger than steel, the metal is used in weapons production and for a variety of other purposes, including the manufacture of alloys used to fill cavities in teeth. Unfortunately, in every production process involving beryllium, including dentistry, the metal is ground into fine particles. When inhaled by workers, those particles are highly toxic, so much so that within days of being exposed to extremely small amounts, workers develop a form of chemical pneumonitis, with symptoms that include labored breathing, coughing and chest pains.

When beryllium was used in the early 1940s to produce fluorescent lamps, fully 30 percent of workers contracting this illness died. So in 1949, OSHA established a workplace standard for beryllium of 2 micrograms per cubic meter of air. Since then subsequent scientific evidence has amply demonstrated the need for a tighter standard.

Because the metal is used in military applications, the Department of Energy, which plays a role in nuclear weapons issues, also has a regulatory interest in the matter. So in 1999, 50 years after the OSHA standard was set, DOE set a stricter one – 0.2 micrograms per cubic meter of air, a tenfold reduction from the OSHA standard.

There’s no good reason that weapons workers should have a tighter standard than dental workers, of course, but lobbying by a company called Brush Wellman, the leading manufacturer of beryllium, managed to dissuade OSHA from following DOE’s lead.

Let’s be clear: OSHA’s inaction on the issue at the time was not a product of Bush Administration intransigence. This was a Clinton era decision, and a bad one. But last week's Post story gave the Bush administration reason to hang its head as well.

According to the story, in 2001, two years after DOE’s regulation and OSHA’s refusal to extend similar protections, an OSHA epidemiologist named Peter Infante drafted a special bulletin warning dental technicians that they could be exposed to beryllium when grinding fillings. Bush political appointees at the agency immediately turned his draft over to Brush Wellman’s lobbying firm. The company’s scientists marked up the draft, and Infante incorporated what he considered to be reasonable changes. The revised version was returned to the company for another review, and the company continued to raise objections. Infante refused to make further changes, but was overruled by OSHA’s political leadership.  The bulletin was eventually issued with a footnote challenging one of its own recommendations – one that the firm opposed. The practical effect of the footnote is that Brush Wellman was able to get OSHA to note for the record that Brush Wellman recommends that the doctors of dental health workers worried about exposure to beryllium not use the blood test recommended by OSHA staff. Or, perhaps more accurately, if doctors use this test in accordance with the OSHA recommendation, and workers subsequently try to sue the company for damages, Brush Wellman will object to the test’s validity. If and when beryllium poisoning cases come to trial, the footnote could be a big boost to the company’s chances of avoiding liability.

Such coziness between regulators and the industries they regulate is not a Bush administration creation, but it has been raised to high art by Bush appointees. Note for example the truly remarkable “sex for oil” scandal reported on by the Inspector General of the Department of Interior this September. The sex part of the scandal captures the attention, granted, but even without it, the relationship between regulators and those they regulate was appallingly congenial.

The moral of the story is that reinvigorating environmental, health and safety protections isn’t just about adopting new regulations. It will also require new ways of doing business at the agencies. Institutional habits can be hard to break, so it will be interesting to see how the Obama Administration addresses the problem.