Document jyzpL41YeZBqeEKVdqk47Mwwp

PLAINTIFF'S EXHIBIT A/C Pipe Producers Association Public Affairs Committee International Affairs Committee -- /r" Vl/eScA- J. F. Welch, Director, Public Affairs FROM Interna! Correspondence March 26, 1981 DATE: ' U.S. National Institute for Occupational Safety and Health (NIOSH) ACTION REQUIRED: Review for information The enclosed article, published by the U.S. Chamber of Commerce, provides a rare political insight into NIOSII, its management and its relationship with the Occupational Safety and Health Administration (OSIIA). This article may give overseas members a full appreciation of the politically adversarial nature of NIOSH and OSIIA under the Carter Administration. As a post script, Robbins' attempt to burrow into the bureaucracy was to no avail. On March 5, 1981, the Secretary of Health and Human Services summarily dismissed him and in a near unprecedented move, withdrew his commission in the Public. Health Service. JFW/ajb ec: A. Kahn, Esq. N. Rahn, Esq. N. Battle Copies to: Public Affairs Committee International Affairs II. Olson I. Adams B. Cook W. Perrell J. Woods J. Baker T. Dougherty D. Stinson VI: McCallie R, Dorner E. Van Dor Rest R. Giboin R. Hobbs C. Walters A. Saoulis R. Jalan V. Pattabhi H. Hudson C. Barton S. Al-Tarkait E. Costa HEGA/1 Chrorio ii CAPCO JEN 0031736 Carter Activists Create "Baby OSHA" by Hank Cox While ex-President Jimmy Carter has packed his bags and fled the banks of the Potomac to more hospitable climes, some of the social-activist officials he brought into his government have burrowed into the bu reaucracy to avoid dismissal. Nowhere is this phenomenon more obvious than at the Na tional Institute for Occupa tional Safety and Health (NIOSH) where two self-ap pointed champions of the working class have trans formed a research agency into an enforcement arm of the Oc cupational Safety and Health Administration (OSHA) in de fiance of the law and to the detriment ofoccupational health research. The controv'ersial adminis trators of NIOSH are Director' Anthony Robbins and his dep uty John Froines, dubbed "Bad heard to howl outside the De partment of Justice building: "I have not come to surrender. 1 have come to tear down the government." It did not seem likely at that time that he would pursue his goal at the taxpay ers' expense. Past and present officials of NIOSH accuse Robbins and Froines of a variety of offenses, ranging from mismanagement to malfeasance. The General Accounting Office has been asked by more than one Con gressman to conduct an in quiry, but has yet to launch a full-scale investigation. Background Both NIOSH and OSHA were created by the Occupational Safety and Health Act; OSHA to enforce job safety and health standards, and NIOSH to con duct long-term research into the iVlnti and Bobbin" by their sub ordinates. Robbins came to NIOSH via the health depart ments of Vermont and Colo rado where his radical anti business posture endeared him to labor union officials. Though he reportedly left both state agencies "in shambles," he was able to move onward and up ward through his contacts with the Oil, Chemical, and Atomic Workers Union and the per sonal supportofthe late George Mcany, president of the AFLCIO. Froines, who worked with Robbins in Vermont, was em ployed at OSHA when sum moned to work with Robbins at NIOSH. Froines was one of the infamous Chicago Seven who disrupted the 1968 Dem ocratic convention. Three years later, during the 1971 May Day riots in Washington, he was nail t causes of occupational disease. Congress took great care to separate NIOSH from OSHA, placing it in a separate depart ment, because it knew OSHA would be subject to political pressures and unable to per form objective research. Under its first leader, Dr. Marcus Key, NIOSH became a first-class research institute. Key and his successor, Dr. John Finklea, sought to fulfill the agency's mandates by produc ing scientific ccitecia on work place health hazards, particu larly those suspected to cause cancer. It published its findings in criteria documents which were sent to OSHA to serve as a basis for standards, as re quired by law. Unfortunately, OSHA was unable to issue regulations as fast as NIOSH could produce criteria documents. Front 1971- 78, NIOSH sent about 100 documents while OSHA issued standards for only five or six. The reason for the disparity is the complex nature of health hazards. Under the law, NIOSH is supposed to "develop criteria dealing with toxic materials and harmful physical agents and substances which will describe exposure levels that are safe for various periods of employment, including but not limited to the exposure levels at which no em ployee will suffer impaired health or functional capacities or diminished life expectancy as a result of his work expo sure." This task is extremely diffi cult. Though much progress has been made in industrial hygiene in recent years, no one can say exactly what levels of exposure' to hazardous substances are safe. The evidence against health hazards, especially cancercausing agents, is seldom con crete. Many scientists believe in dividual susceptibility is a more important factor than exposure levels in the development of occupational disease. Also, few workers are exposed to only one hazard and the problem of mul tiple exposures greatly compli cates the issue. The criteria documents pro duced by NIOSH are compre hensive analyses of all evidence against specific hazards. They state what is known and what is not known. They are scien tifically sound, but make weak documentation for OSHA stan dards that must be defended in court. Despite the legal shortcom ings, however, the documents are the most detailed informa tion on health hazards that ex ists. They are widely used by corporate medical staff, union officials, and other health professionals as guides for re ducing work exposures. When a health hazard is present in the workplace, a professional's first response is usually to see if there is a NIOSH criteria document oil the subject. March 19S1/Regulatory Action Network: Washington Watch S-l CAPCO JEN 0031737 With or without an accom panying OSHA regulation, the criteria document is a valuable tool in the continuing campaign against occupational disease. The Robbins Solution When Eula Bingham was ap pointed OSHA Administrator in early 1977, she quickly voiced herdisapproval of NIOSH's in dependent, scientific approach to dealing with occupational hazards. She wanted an end to the development of criteria documents which she consid ered an embarrassment to her agency. Bingham also wanted NIOSH to .back up her allegation that more than 30% of all cancers are related to workplace ex posures. NIOSH had con ducted its own research and concluded the real figure was between one and five percent. During public hearings on OSHA's proposed new cancer policy, Bingham's officials put pressure on NIOSH to raise its estimate. "We've got to get the figure up to justify the policy," one OSHA official told NIOSH represen ta rives. Dr. John Finklea, who was then director ofNIOSH, balked at these demands. His stubborn 'refusal to compromise his agency's integrity for ideologi cal purposes reportedly infuri ated Bingham. Using her con tacts with the White House and the labor unions, Bingham had Finklea removed and Robbins installed in his place. Robbins quickly raised NIOSH director Anthony Robbins. NIOSH's estimate of the im pact of workplace exposure on cancer rates to conform to OSHA propaganda and shut off the flow of criteria documents. At the time, the institute had between 30 and SO documents in various stages of develop ment by private contractors, for which funds had already been appropriated. A single criteria document can cost up to $250,000. One by one, the expensive and important documents were completed and sent to Robbins' office where almost all of them disappeared. Critics say Rob bins has sent only one docu ment to OSHA during his ten ure at NIOSH. Robbins says the figure is three, though that is still far short of the 24 per year the institute had been sending. The case of the missing criteria documents has been a source of vigorous debate in'' occupational health circles for the past two years. The suppression of this val uable information appears to be a product of the politicalideological orientation of Rob bins, Froines, Bingham, and other social-activists who rose to power in the Carter Admin istration. Closely allied with militant labor unions ail'd en vironmental groups, they seemed to regard their agencies as weapons in a class war against the private enterprise system. If the criteria documents could not be converted into regula tions to use against business, they did not fit into the OSHANIOSH scheme of things. The expensive documents with life-saving potential are collecting dust on NIOSH shelves. Tens of millions of tax dollars have gone down the drain. Robbins has reduced the criteria document staff from 35 to a skeleton crew of five. Ac cording to NIOSH insiders, the agency has sent very little sci entific criteria of any kind to OSHA during Robbins' tenure. "If it won't lead to an OSHA standard, why bother?" one NIOSH official told Washing ton Watch. New Directions The all-important independ ;v is often forced to seek Federal warrants to gain access to workplaces. A spate of recent court de cisions has upheld NIOSH's right to enter the workplace, view employee records, and obtain ex parte warrants. But the fact that NIOSH has been forced to go to coutt over these matters.is itself evidence of the decline in the agency's'prestige. Fantasy Facts ' ence of NIOSH from OSHA, so painfully crafted by Con gress and preserved by Key and Finklea, was an early casualty of the Robbins-Froines're gime. The result is a "Baby OSHA." As NIOSH rejected the mission assigned to it by Congress, it became a covert arm of OSHA's enforcement mechanism. Con gress had given NIOSH the au thority to enter workplaces and conduct investigations as part of its research function. Rob bins has greately expanded this minor aspect of the NIOSH program to create an unau thorized inspection force work ing hand-in-hand with OSHA. According to Phil Bierbaum, NIOSH deputy director for hazards surveillance, NIOSH inspectors automatically report all of their findings to OSHA and the labor unions. NIOSH on-site investigations, called health hazard evaluations,'are used as "precursors" for OSHA inspections. If NIOSH finds what it believes to be a hazard, it o.rders the employer to make' corrections. Then OSHA con ducts a follow-up inspection and, if the alleged hazard has not been corrected, issues a willful and repeated violation citation carrying heavy penal ties. In effect, NIOSH investi gators are now OSHA inspec tors. This new emphasis has de stroyed the institute's credibil ity as a scientific organization. Where once NIOSH could ex pect cooperation and assistance from industry, the agency now Despite the curtailment of NIOSH research and his own meager experience in occupa tional health, Robbins is never theless undeterred from assert inghimselfas the expert on what should be done to reduce oc cupational disease. His approach is awesome in its simplicity. Rather than spend the time and effort required to study a suspected hazard and develop control technology, Robbins suggests that "sus pected" hazards be wholly eliminated, regardless of the impact on the economy and the loss of jobs. A case in point is theproblcm of asbestos which is known to contribute to the development of cancer among workers'ex posed to large amounts, espe cially those workers who smoke cigarettes. For years, OSHA and NIOSH--along with business and labor--have wrestled with the question of how much ex posure is dangerous. The prob lem is crucial, for asbestos is used in many consumer prod ucts. It is used in buildings as a fire deterrent, and its heat re sistance and bonding properties make it uniquely suitable for automobile brakes. In a speech before the AFLCIO,' Robbins said "There is no safe exposure limit for asbes tos," a statement which cannot be true since asbestos is one of the most common minerals known to man and everyone has been exposed to it. In a speech to an incredulous gathering of the Asbestos In formation Association, Rob bins said the U.S. must move to "halt completely" the use of asbestos because of its hazard ous properties. To this pro nouncement, David L. Kendall S-2 Regulatory Action Network: Washington Watch/March 19S1 i l CAPCO JEN onsi^o research. As friends ofJane Fonda, Tom Hayden, and others in the anti nuclear power movement, Robbins and Froincs are very interested in nuclear power plants. They possess little ex pertise in the subject and NIOSH is expressly forbidden by the Occupational Safety' and Health Act from interfering with au thority of other agencies. Nu clear power plants are under the authority of the Nuclear Regulatory Commission and thus out of bounds for NIOSH, but "Bad Man and Robbin" arc undaunted by such legal refine ments. ,, When the nuclear accident occurred at Three Mile Island in Pennsylvania, Robbins quickly dispatched a NIOSH investigator to the scene. What the investigator was supposed to do is anyone's guess. In the words of one NIOSH official, he "mucked around and asked stupid questions," much to the annoyance of the Nuclear Reg ulatory Commission, the Bu reau of Radiological Health, and other government agenejes that had a legitimate rcasoiflo be there. According to one eyewitness, Robbins .summoned a subor'dinatc to give him a quick brief ing on nuclear energy. Robbins than called the Pennsylvania health commissioner and de manded the immediate evacu ation of the Three Mile Island area. Fortunately, the state of ficial had sufficient presence of mind to ignore the demand which Robbins had no author ity to make. Froincs has reportedly used his office and facilities to assist in political campaigning, albeit not on behalf of Jimmy Carter. The object of Froines' admir ation and support was Gover nor Jerry Brown of California. Three former NIOSH officials have confirmed to Washington Watch that Froincs spent an inordinate amount of time on the telephone to California, at government expense, in stategy sessions with otlicc Brown sup porters. Another questionable Rob bins move was the assignment of a NIOSI i official, Dc. Joseph Wagoner, to perform full-time work for the Environmental A Private Consultant's Report... Defense Fund for two years'. The In late 1978, NIOSH retained a private contracting firm--Pol assignment of a Federal em icy Research, Inc. (PR1)--to identify problems with criteria doc ployee drawing government uments and recommend improvements in the program that would salary to work for a private sec enhance their effectiveness in reducing occupational disease. tor activist group is highly ir The viewpoints of 45 occupational safety and health experts regular. NIOSH officials report from labor, industry, academe, and Federal and state government they know of no other incident agencies were solicited. Their comments were analyzed and sum of a public health officer being marized in a report prepared by PRI. so used. Acknowledging that the criteria documents "make a helpful Robbins also has reportedly contribution to the national effort to protect the health and well instructed NIOSH personnel to : being of the workers," the report suggested the criteria document conduct research into the value program be divided into two parts: one to serve as a basis for of transcendental meditation as OSHA standard, and the other to provide information to con a means of relieving stress cerned groups such as OSHA, industry, and labor. among white collar employees. . While some of the experts thought OSHA's inability to issue Considering Robbins' own al standards in response to criteria documents meant the documents legations about the seriousness were not useful for that purpose, others thought it had mote to of workplace carcinogens, this do with OSHA's own internal problems. Many of the experts does not appear a worthwhile reported they had used the documents as reference sources for expenditure of the agency's re information on health hazards, and that they were very useful for sources. this purpose, regardless of their utility in standards-setting. Robbins' latest ploy is to ex Almost all of the experts agreed that criteria documents should tend his influence by getting in contain information on what the workers can do to protect them volved in the rnuch-publicizcd selves while on the job, and that this section should be written "Superfund" that the nviron-v in understandable language so it can be used by workers and small mental Protection Agency will businesses. '. administer to clean up chemical The experts were very critical of NIOSH's on-site investiga waste sites. Congress gave tions--health hazard evaluations--recommending that such visits NIOSH no role to play in this be conducted by "knowledgeable people," which, they said, was project, but once again the hire not standard NIOSH practice. of publicity has tempted him beyond his agency's jurisdic tion boundaries. of it in tax-free medical incen and Human Services. Robbins Burrowing In tive and housing allowances. and Froines are his employees. Robbins has vowed to fight Apparently more concerned While sabotaging NIOSH's any efforts to remove him from with his inflated salary than his long-term health research pro office. His wife is a lawyer in leftist ideology, Robbins is gram and dabbling in nuclear the general counsel's office of sounding more like a conserv energy and transcendental the Department of Health and ative Republican every passing meditation, Robbins and Froines Human Services, of which day. In a January 19 speech in took care to insulate themselves NIOSH is a pact, so he knows Texas, he said NIOSH and from possible removal in the the rules as well as anyone. OSHA will no longer be able wake of election reverses such as occurred on November 4. Epilogue to rely on regulatory powers to fulfill their missions, but will Neither is a Schedule Cpolitical As of this writing, Robbins have "to work harder to dem appointee and neither can be and Froines are still in com onstrate significant risk" of easily fired by the Reagan mand nj NIOSH. Unlike OSHA, health hazards. Administration. NIOSH is far down in the bu " In the light of the Supreme Froines is a GS-15 in the Civil reaucratic chain and draws lit- Court's benzene decision of last Service. He can be transferred tic attention from-the media. summer, that is an understate but not fired. The taxpayers will Also, the issues are so complex ment. In the future, OSHA will be supporting him indefinitely. that few people outside the oc need NIOSH's research capa Robbins has the best deal of cupational health profession are bility more than ever. In orJer all. With union backing, he ob aware of whar they have.done to protect workers from haz tained the status of Assistant to the institute. ardous substances, OSHA will Surgeon General and member Ironically, Robbins and have to prove the substances ship in the Commissioned Froines draw their political arc in fact hazardous. To obtain Corps, a quasi-judicial military support from the same unions that information, NIOSH will organization available only to that orchestrated the smear have to resume its research role Public Health Service officers. campaign against Sen. Richard and,-more importantly, regain He has the status of an 0-7, Schweiker (R-I'A) last year when its reputation for scientific in equivalent to a one-star gen the Senator introduced a bill to tegrity. That is not likely to eral, and draws a salary in ex curb OSHA's power. Sch'wci- happen with Robbins am! cess of S70.000 a year, much ker is now Secretary-of Health Froines in control. S-4 Regulatory Action Network: Washington Watcli/March 1031 CAPCO JEN of Research Triangle Institute responded that while there is "no absolutely necessary use of asbestos, there is no absolutely necessary use ofthe automobile either." A New Approach In the absence of criteria doc uments, Robbins and Bingham came up with a new-system for standards development. Ac cording to ex-NlOSH officials, OSHA decides--with advice from the unions--what the ex posure level for a given sub stance should be, and NIOSH tries to scrape up some "sci entific data" to back it up. This cart-before-the-horse approach is probably the one creative contribution made by the activist OSHA-NIOSH ca bal, but its utility to occupa tional health is questionable. "When conclusions are drawn before the science is in," former NIOSH deputy directorEd Baier says, "something is amiss." What little information NIOSH has produced under Robbins and Froines has come in the form of "hazard reviews" and "current intelligence bul letins" that provide some useful information but do not begin to address the critical question of safe exposure levels. Var iously described as "scanty" and "shabby" by leading experts, these reports appear to be more designed to frighten workers than accomplish any scientific purpose. The cadre of top-flight sci entists assembled by Key and Finklea in the early days of NIOSH have fled the agency in disgust at the antics of Robbins and Froines. According to one report, there is now not one board-certified industrial hy gienist in a position of power at NIOSH where once there were 40. Professional Protests Not surprisingly, the cavalier attitude of Robbins and Froines to scientific method has aroused animosity in occupational health cicdes. One particularly nastyfuror arose over NIOSH's stud ies of the hazards of beryllium. A former epidemiologist for NIOSH, David Bayliss, who was among those who fled the Rob bins regime, has taken strong offense to efforts of NIOSH to rewrite the record and establish Former Director Key Looks Back... As conceived by Congress, NIOSH is supposed to be a high- caliber research institute, not an enforcement agency, according to Dr. Marcus Key, the first director of the institute. Key, who served at NIOSH from 1971-1974, is now professor of occupa tional medicine at the University of Texas School of Public Health in Houston. There should be regular feedback from OSHA enforcement to NIOSH research, Key said. NIOSH and OSHA should work to gether to develop priority lists of hazardous substances for study. In.the future, NIOSH will need to produce criteria documents, but not on the same scale as before. Key said. Future studies probably will not be devoted to single agents, but rather to types of industry and operations and to classes of substances. * Also, NIOSH will have to address issues of cost-benefit analysis and feasibility in future studies, Key said. "Scientists don't like cost-benefit analysis, but in the wake of the Supreme Court's decision on OSHA's benzene standard, they will have to get in volved in it," he said. NIOSH cannot stick with the dose-response approach to study ing hazards, Key said. In the future, criteria documents may be part ofindustry-wide studies. Many top-notch occupational health scientists have never been in an industrial plant, he added. To that extent, they arc "babes in the woods." Participation in industry wide studies will enable them to gain practical experience in the workplace. Key added that he hated to see NIOSH become politicized. "1 hope professionalism will win our over the adversary relation ship," he said. beryllium as a human carcin Standards Completion Project, ogen in defiance of scientific a long-term effort of NIOSH findings. In a sharply-worded to supplement OSHA's Thresh letter to the head of the Center old Limit Values for 3S0 toxic for Disease Control, Bayliss substances. Many occupational cltarged that NIOSH was trying experts believe that up to 80% to "provide support of the pro of worker exposures to hazard posed OSHA standard and of ous substances are related to the position advanced by OSHA these 380 toxic agents. OSHA that beryllium should be treated has exposure limits on the books as a human carcinogen." Ac but nothing more. NIOSH be cording to Bayliss, "the entire gan a project to supplement study should be transferred out these Iimitsin 1976, developing of NIOSH and placed in the work practice guides, sampling hands of a truly independent methods, and the usual infor research organization whose mation employers need to con scientific integrity is unblem trol exposure. Up to S10 mil ished and whose objectivity is lion. was spent on the project, uncompromised." Clearly Bay but Robbins has released noth liss, who once served as assis ing. tant chief of NIOSH's biometry section at its Cincinnati labo ratory, does not have much faith [eft in the institute's credibility. Another tiffinvolved NIOSH and the American National Standards Institute (ANSI). After participating on an ANSI committee developing a vol untary standard for use of res pirators and approving the final rule, NIOSH changed its mind and criticized the standard as inadequate. According to Wil liam H. Revoir, chairman of the ANSI committee, the criticisms made by NIOSH were "based on very little research, the use of some incorrect data, ques tionable assumptions, and the. use of some improper methods of calculations." Other mem bers of the ANSI panel shared NIOSH insiders say it is the same old problem of OSHA not wanting the information. If OSHA doesn't want it, Robbins doesn't send it. The guidelines prepared by NIOSH would be extremely valuable to employ ers whose workers are exposed to the 380 toxic agents. Like the criteria documents, they are collecting dust on NIOSH shelves. Robbins also stopped publi cation and distribution of NIOSH's "Worker Safety and Health Guides" and "Safe Practices Manuals" which were designed to help small busi nesses reduce exposures. The elimination of this inexpensive and useful program is inexplic able unless it is another ex ample of the pro-union tilt of Rcvoir's opinion of NIOSH's Robbins and Froines. Small criticisms. businesses are usually non Other Missing Reports union. In addition to the missing Eccentric Behavior criteria documents, other im - Some observers theorize that portant NIOSH reports have Robbins and Froines have disappeared. One was a major turned their backs on occupa study of the Bunker Hill Smelter tional health research because in Idaho, a massive investiga it takes too long and the results tion upon which NIOSH spent do not make good news stories. more than $500,000 of the tax Anti-business rhetoric makes payers' money. The study was better news copy than quiet, completed in 1976, butNIOSH painstaking research, especially has yet to release a final report. when the results of that re Former NIOSH director Dr. search do notsupport their pro John Finklea acknowledges it union biases. could have taken NIOSH two More importantly, criteria years or so to analyze the data, documents arc peer reviewed but that docs not explain why by scientific panels, a process the report is still unissued in that could be embarrassing to 19S1. an institute that reaches con Of greater significance is the clusions prior to conducting March 19SI/Rcgulatory Action Network: Washington Watch 11 S-3 i 1 CAPCO JEN 0031740