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NIOSH and OSHA work to build a closer relationship
By Kyle W. Morrison, senior associate editor
In the aftermath of the April 2010 Deepwater Horizon oil rig explosion, thousands of workers traveled to the Gulf Coast to participate in cleanup efforts. Joining them were two government agencies: NIOSH and OSHA.
NIOSH helped provide OSHA with technical expertise and exposure monitoring, and the agencies worked together in the gathering and sharing of data on worker injuries and illnesses to help ensure cleanup workers were protected from harmful exposures to heat, chemicals and other hazards.
Partially spurred by lessons learned from poor collaborative efforts during the 2005 hurricane season and the 2001 terrorist attacks, the type of coordination that took place two years ago was something that had never happened before.
“With Deepwater Horizon, we plugged in very quickly in a way that was really helpful,” said Frank Hearl, chief of staff at NIOSH. “Those were the kinds of things that didn’t happen with [Hurricane] Katrina or the World Trade Center.”
This new relationship between NIOSH and OSHA – in development over the past few years – is considered by some government officials and outside observers as the best it has ever been. In response to questions from Safety+Health, OSHA spokesperson Kimberly Darby described the relationship between the two agencies as “strong” and suggested the pair was working “more closely than ever.”
Such close coordination has not always been present.
The benzene decision
When the Occupational Safety and Health Act was signed into law in 1970, it gave birth to OSHA and NIOSH – two separate yet linked agencies.
OSHA, reporting to the secretary of labor, was devised to be the enforcement agency – it would set standards, conduct inspections and penalize employers who failed to follow the law. NIOSH, reporting to the secretary of health and human services, was designed to be the research arm – it would develop and establish recommended occupational safety and health standards.
The two agencies seemingly were intended to work hand in hand – NIOSH would do the research on keeping workers safe and make recommendations to OSHA. OSHA, in turn, would develop standards based on that research and enforce those rules to keep workers safe. But for a variety of reasons, things have not consistently worked out that way.
“There have been periods of time when there was no coordination,” said Michael Silverstein, head of Washington state’s Division of Occupational Safety and Health. Silverstein also most recently served as chair of the National Advisory Committee on Occupational Safety and Health, which provides advice to the secretaries of labor and health and human services on a variety of worker safety issues. (His two-year term expired in March.)
The lack of coordination partially stems from the Supreme Court’s 1980 decision to vacate OSHA’s Benzene Standard. The rule originally had a permissible exposure limit based on a NIOSH-suggested recommended exposure limit, but the court ruled that OSHA had not shown its standard would result in a reduction of risk.
Because of this decision, OSHA began conducting risk assessments to determine occupational health risks and whether a proposed standard would reduce that risk. OSHA also must show that proposed standards could be economically feasible for business owners, particularly small business owners.
NIOSH, on the other hand, does not have to make such considerations when it issues RELs. While OSHA is more focused on the immediate issues in front of it, NIOSH tends to be more forward-thinking and has a long-term-benefit perspective, according to Hearl, who currently works as a NIOSH liaison with OSHA. Following the benzene ruling, NIOSH veered off into researching the lowest feasible exposure levels to hazards.
“As such, we were turning out things that weren’t useful to OSHA,” Hearl said.
More problems, difficult solutions
A variety of institutional issues have strained the relationship between NIOSH and OSHA in the past, according to John Mendeloff, director of the RAND Center for Health and Safety in the Workplace, a Pittsburgh-based research institution.
OSHA failed to share its research with NIOSH, and NIOSH researchers failed to focus on questions relevant to OSHA, Mendeloff said in a 2010 memo. Officials at OSHA have not wanted to be constrained by NIOSH interpretations, he wrote, and NIOSH officials have feared that getting too close to its sister agency could expose it to political repercussions. Additionally, turf-protection issues could be at play, and being in different departments inhibits coordination.
Figuring out ways to fix the situation can be difficult, Mendeloff told S+H. To the suggestion that coordination between the agencies should be mandated, he agreed that certain types of laws could be written, such as those allowing access to data or requiring NIOSH to review and improve OSHA performance. (See sidebar: “In Washington state: Adopting a rule consistent with NIOSH recommendations”)
“OSHA is the country’s leading prevention program,” Mendeloff said. “It seems like trying to make it work better should be part of NIOSH’s role.”
But designing requirements could be tricky, as it would be hard to anticipate all the various situations and circumstances that could arise. Determined leaders also could find a way out of these types of mandates, Mendeloff added.
Reassessing the relationship
As several stakeholders told S+H, it is difficult to legislate cooperation. So what is the solution?
“It really depends on not only agency leadership, but agency culture and capacity,” Mendeloff said.
To an extent, recent leadership at both agencies has paved the way for the better relationship between the pair. Under NIOSH Director John Howard and former OSHA administrator John Henshaw, an Information Exchange Group was established in which directors from both agencies would meet once a quarter to discuss common interests, Hearl said.
Coordination was later expanded to include a NIOSH-OSHA Liaison and Information Exchange, which consisted of agency officials at the state and directorate level participating in a monthly phone call to discuss a variety of topics, including heat stress among workers during the Deepwater Horizon cleanup and respirator use during the H1N1 pandemic.
During a press event Nov. 1 at the 2011 National Safety Council Congress & Expo, OSHA administrator David Michaels spoke about the developing relationship between the agencies. “NIOSH is now producing risk assessments and scientific literature that OSHA can use,” he said. “Before that, OSHA would sort of duplicate the work of NIOSH; it was a waste of taxpayer money and not a good use of terrific scientists at NIOSH.”
One example was a risk assessment on diacetyl and food flavoring products. Both agencies originally were going to perform their own risk assessment, but the two groups worked together on figuring out a way NIOSH could conduct it that would serve both agencies’ goals, Hearl said.
“We all decided we needed to be more economical about the limited resources we have,” he said. “We’re looking at ways that if we have a common message, we feel it’s more powerful if it comes from both agencies.”
The sharing of resources has extended to jointly developing compliance assistance materials, Darby said. Recent co-branded publications from NIOSH and OSHA include a nail gun safety booklet, a spirometry info sheet, and a fact sheet and QuickCard on protecting swine farmers and pork producers from influenza.
The newly developed close relationship is not limited only to the leadership level, however. Investigators, researchers and other staff members on several levels from both agencies are interacting more.
“I think these kind of staff cooperations are really paying dividends,” Hearl said, noting that staff members from the agencies collaborated on several conferences, including the 2010 National Action Summit for Latino Worker Health and Safety.
This spring, NIOSH expects to issue a draft of a revised policy for setting RELs. The revision primarily stems from advances in science that have made the current policy out of date, Hearl said, but the institute also is looking to modify its approach to RELs so they are more useful for OSHA.
Data sharing between the two agencies also has improved. Through an interagency agreement, OSHA has begun sharing data from its inspection program – data that the institute previously had to go through “a lot of hoops” to acquire, Hearl said. In turn, NIOSH data that could be useful to OSHA rulemaking is being shared with the enforcement agency.
“I think with a bit more determination and flexibility on both the parts of NIOSH and OSHA, there could be a much tighter relationship in rulemaking,” Silverstein said.
Mendeloff applauded the steps the agencies have taken to work closer, but stressed that problems need to be addressed, including OSHA failing to be more analytical about its own research, data and the impact of its inspections.
Although he believes administrator Michaels is trying to change that, Mendeloff said the agency lacks the money and staff to take up such an initiative. NIOSH initially was viewed as the arm that could do such analyses, but it has its own agenda and budgetary limitations.
“I think they have a very difficult job, and I think they’re trying to move in the right direction,” Mendeloff said of the agencies, “but this just scratches at the surface of where we need to be going on this.”