2. John Stender Administration, 1973-1975: OSHA Becomes an Agency in Crisis
When President Nixon was reelected in 1972 he removed virtually all of his old political appointees, including the Secretary of Labor and the head of OSHA. The new Secretary of Labor was Peter J. Brennan, a tough labor leader from the New York City construction trades who lacked experience in government. He had helped deliver blue collar support to the President in the 1972 elections. Asked at Senate confirmation hearings for his views on job safety and health, Brennan stressed that as a former construction worker he was well aware of the meaning of death and injury on the job. He assured the Senators that as Secretary he would give the problem high priority.
Shortly after Brennan became Secretary, two spectacular workplace tragedies in rapid succession riveted his attention and dramatized OSHA's mission. On February 17, 1973, an explosion in a huge liquified natural gas storage tank on Staten Island, N.Y., killed 40 workers. Brennan visited the scene of the accident twice and ordered a full investigation by OSHA. No sooner had the investigation begun when disaster struck again. On March 2, a high rise building under construction in the Washington suburb of Bailey's Crossroads collapsed. Over a dozen workmen perished and 34 were injured. Brennan ordered a special investigation of this accident too. As a by product, a few weeks later OSHA launched a campaign to reduce cave ins at construction sites.11
In the midst of these tragedies, Brennan selected John H. Stender, an official of the Boilermakers Union and a representative in the Washington state legislature, to replace George Guenther as the new head of OSHA. Stender was not a safety and health professional and, like Brennan, lacked administrative experience, but he seemed uniquely qualified to understand workplace hazards, having lost part of his hearing from exposure to noise while working inside of boilers.
During Stender's nomination hearings, Senator Edward Kennedy told him that, in his view, OSHA had not come near its goals for inspections and was not expanding its staff rapidly enough. Kennedy hoped that OSHA would issue more standards on poisonous substances. Senator Javits called on Stender to allow OSHA inspectors to go on consultation visits to employers, on which they would not at the same time have to cite for safety and health violations. Stender said he favored the idea (which, however, required legislative action to implement) and pointed out that one of the provisions of the Washington state job safety and health law that he sponsored allowed such consultative visits by inspectors. While he recognized that Congress did not want OSHA to "set up a Gestapo," he asserted that if voluntary compliance did not do the job, "then we will have to use the necessary means to get it" (i.e., strict enforcement). Senator Williams said after listening to the testimony that he thought Stender really knew "what it is all about." Stender was confirmed without difficulty and assumed his duties on April 10, 1973.12
Under new leadership OSHA moved in a different direction. The hiatus in the growth of state plans and growing pressure for new safety and health standards gradually forced them to place the highest priority on tough enforcement and on developing new standards.13 Before 1973 OSHA had appointed advisory committees on standards for noise, toxic metals and other hazards, but during Stender's tenure the agency paid more attention to standards development.14 He reorganized OSHA, partly to improve its ability to develop standards.15 He appointed a new director of standards and gave him the task of bringing health standards to the same level of development as safety standards. To help accomplish this, the standards staff was doubled.16 Stender revived OSHA's project to revise portions of the much criticized consensus standards. It dropped several out moded rules such as the one requiring "retiring rooms" for women.
Beyond revising previously adopted standards, OSHA issued or proposed several new health standards. For some of these, the groundwork had already been laid during Guenther's tenure. For others, it remained for later administrators to complete or continue the process. A permanent standard for a group of 14 carcinogenic chemicals issued in January 1974 was the end product of a process that began in 1972 with pressure from unions for such a standard. OSHA issued a standard for vinyl chloride in 1974 when a virtual epidemic of liver cancer suddenly became evident among exposed workers. Another action originating wholly during Stender's time was the January 1975 proposal for a permanent standard for another carcinogen, inorganic arsenic. However, a final standard did not appear until after Stender's departure. Following up on a process begun before he took office, in April 1973 Stender issued an emergency standard for a group of pesticides, but it was blocked in court and no permanent standard was issued. In October 1974 OSHA proposed a somewhat toughened revision of its consensus standard on noise, stemming from work done earlier. However, OSHA issued no revised standard and further work was done after Stender's departure. The only major action Stender took on a safety standard was his decision in December 1974 to drop altogether a rule requiring certain safety precautions on power presses on which Guenther had decided to delay enforcement until 1974.
During Stender's tenure, for no particular fault of his own, the agency received a broader range of criticism than formerly and from a wider spectrum of groups. Labor stepped up its pressure, big business joined the fray, and friends as well as opponents of OSHA in Congress began to look at the agency with a much harder eye. By the time Stender left in 1975 the agency was truly in a crisis in which its credibility and competence were under question from all sides.
In July of 1974 the Watergate investigations turned up a memorandum from George Guenther that raised questions about political influence in OSHA. During Nixon's reelection campaign in 1972 the White House had asked all federal agencies to help in that effort. Guenther wrote a memo on OSHA's possible contribution to this "responsiveness" campaign. In it he discussed "the great potential of OSHA as a sales point" to enlist industry's support of Nixon's reelection. He called for suggestions from his staff on how to promote the advantages of four more years of "properly managed" OSHA. Guenther himself suggested that OSHA not propose any highly controversial standards in the near future.
Sidney Wolf of the Health Resource Group charged that the memo proved that OSHA had eased up on standards setting for political reasons. Guenther, then working in private industry, responded that the memo was only a statement of his views and was never put into effect. While "responsiveness" plans were developed for OSHA and other Labor Department agencies, they were never submitted to the White House.17
However, the memo heightened criticism of OSHA's standards setting process. Stender conceded that the pace was slow and blamed it on several factors. First was the perennial one of restrictions on funding and manpower devoted to standards. He also pointed out that the process of collecting findings from NIOSH, convening advisory panels, holding hearings, and so on, took considerable time. OSHA had to take special care to set standards that would hold up in court. Several had already been voided by courts. More suits were expected. The Solicitor's Office in the Labor Department conducted an elaborate review of each proposed standard that sometimes led to delays.18
In September 1974, Senator Williams' labor subcommittee issued a 136 page critique of OSHA. Charging that the agency was "shackled by administrative ineptitude," Williams sent the study to the Labor Department, along with a list of questions about OSHA's operations. He called for a progress report in three months. The Williams report focused on the fact that 98 percent of all the violations OSHA recorded were classed as "non serious," as opposed to "serious" ones which would bring stiffer penalties. The report blasted the agency for setting only three new standards in three years. The study also noted wide regional variations in strictness of inspections, frequent failure to cite obvious violations, and the absence of any way for OSHA to measure its effect on the nation's workplaces.19
In response to Williams' criticisms, Secretary Brennan said that in general he was satisfied that the Act was adequately enforced. However, he conceded there was room for improvement in such areas as the speed of standards development and agency administration. On the other hand, he maintained that OSHA was strong on inspections, federal-state relations, promotion of voluntary compliance, and safety and health training. Brennan said OSHA was already developing ways to measure its impact on the workplace and was seeking greater uniformity among the different regions.20
By March 1975 OSHA had responded to most of Senator Williams' questions. However, he was not satisfied with the responses. Congress was considering bills to transfer mining and railroading safety and health duties to the Labor Department, but Williams said that OSHA still had serious problems which it had to correct before trying to take on additional safety responsibilities. Williams concluded that administration of the OSH Act, while "without malice... has been without vision."21
While Congress was pressing OSHA to regulate more effectively in 1974 and 1975, the White House and the nation's business leaders began calling for an easing of the regulatory burden. Almost over shadowed in the Watergate crisis of 1974 was a speech President Nixon gave on July 25 before a conference on the economy in Los Angeles. In this address he attacked the regulatory system of which OSHA was a part:
"Too often today the creative energies of our economic system are stifled by burdensome over regulation based on policies designed for an earlier era... I have directed a sweeping review of these policies... Where regulatory agencies, because of obsolete rules, have the effect of restricting production rather than encouraging it, those rules need to be changed... And now we come to a very sensitive political point. It is time for us to reevaluate the trade off between increasing supplies, increasing production, and certain other objectives that are worthwhile, such as improving the environment and increasing safety. These goals are important, but we too often, recently, have had a tendency to push particular social goals so far and so fast that other important economic goals are unduly sacrificed... These policies must be recalculated and adjusted to the new needs."22
President Gerald R. Ford, who succeeded Nixon in August 1974, shared Nixon's concern for the vitality of American industry. To deal with an economic crisis magnified by huge increases in the price of imported oil, Ford called for an "economic summit" conference in September 1974 of economists, businessmen, labor leaders and others. At preliminary meetings around the country, businessmen spoke out on the high cost of government regulations in the context of an inflationary economy. In Detroit, Henry Ford II, chairman of Ford Motor Corp., called for a five year delay in enforcing federal health and environmental standards to allow companies to expand their plants and increase their output. Philip O. Geier of Cincinnati Milacron said this was no time for over zealous enforcement by agencies like OSHA. The consensus was that environmental, job safety and health, and consumer protection rules had become inflationary and excessively burdensome.
At these preliminary meetings several executives called on government to analyze economic effects of proposed regulations. Irving S. Shapiro from DuPont argued that government regulations had so hampered productivity in some industries that the intended benefits to the public were negated. He suggested that a system be set up to require the government to reveal economic effects of all federal regulations which would clearly show the benefits derived by one segment of society and foregone by others.23
President Ford had made Nixon's deregulation plan one of his main goals. Ford's view was that OSHA was "on the horns of a dilemma between legitimate efforts to protect life and safety, and the added cost that comes from an overly restrictive (law)."24 At the Detroit "summit," Commerce Secretary Frederick Dent revealed that there was growing support in the Administration for doing economic "cost/benefit" studies of federal rules. In November 1974 Ford issued an order requiring that federal agencies prepare Inflationary Impact Statements (IIS's) for most proposed regulations, including those on job safety and health.
The IIS requirement may have gotten business off the Administration's back and introduced a measure of economic common sense into OSHA's rule making deliberations, but it also slowed down an already snail paced standards setting process and brought strong criticism from labor. John Stender and Solicitor William Kilberg agreed that IIS's would delay new standards by several months. Under Secretary Richard Schubert asked the Office of Management and Budget (OMB) to exempt OSHA from the IIS rule but the request was denied.25