Addressing exposures to harmful chemicals requires an integrated agency.
As someone deeply concerned about the few thousand premature deaths nationally each year due to exposures to chemicals in residential communities, but even more concerned about the many tens of thousands of such deaths due to the same exposures inside American workplaces, I know what we have been doing wrong for the past 55 years. President Richard Nixon deserves tremendous credit for creating three related entities between 1970 and 1971—the U.S. Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and the National Institute for Occupational Safety and Health (NIOSH). But by accident or by design (and I suspect the former), he kept them far apart and unable to solve what is in fact one singular problem.
This mistake is structural, not one created by a knowledge gap: We have one research agency and two regulatory agencies that span three different cabinet departments, are located in three disparate parts of Washington, D.C., and report to two U.S. Senate and two U.S. House of Representatives committees. When the nation recovers from the hollowing out of these essential agencies that study and implement “those wise restraints that make us free,” we need to undo the structural mistake made a half-century ago. Ironically, such a bold response to an enduring problem was inconceivable until now: Only the near-destruction of these agencies poises them for a new beginning.
Our country needs a united entity to research and reduce needless exposures to carcinogens and other toxicants throughout their production, use, emission, and disposal. These hazards almost always emerge from workplaces, where they exist in parts per million or even parts per thousand concentrations, and only then do they reach neighborhoods in parts per billion or occasionally parts per million levels. By annually appropriating roughly 20 times more dollars and personnel to EPA than offered to OSHA, the U.S. Congress and the White House have arguably focused on the smaller tragedy to the detriment of the larger one. This disparity is made worse by statutes that allow EPA to issue large civil penalties and to multiply them for every day that a violation persisted, whereas the standard OSHA fine for negligently causing a worker’s death remains less than $17,000.
This statutory problem is exacerbated by OSHA’s own voluntary misallocation between its “safety” and its “health” functions, given that the roughly 5,000 annual workplace deaths from acute safety hazards such as falls, amputations, or electrocutions are dwarfed by the 50,000 or more premature deaths from occupational disease. The agency claims that around 20 percent of its inspections are “health inspections,” but this is an artifact of coding as “health” thousands of construction-site safety inspections done by any staff person initially hired because of their industrial hygiene experience. I estimate that about three percent of OSHA’s inspections involve health hazards. And the number of chemical samples OSHA takes keeps dropping. Analyzing an OSHA database, I found that last year, the agency collected 21,509 samples of hazardous substances in 1,266 establishments. Ten years earlier, OSHA had collected 49,616 samples in 2,512 unique workplaces—more than twice as many samples. Thirty years before that, OSHA collected double the amount of samples as ten years ago: 100,641 samples from 3,376 sites.
The same inattention to worker exposures plagues NIOSH. The Institute last conducted a nationwide survey of how many workers were exposed to each common toxic chemical in 1983. Since that time, a different division of the Centers for Disease Control and Prevention has conducted 15 separate national studies of the American diet. As a result, we know far more about how many potato chips Americans eat than about how many milligrams of toxic silica dust American workers inhale. As for the belief that keeping research and regulation at arm’s length deters polluting science with politics, EPA has shown through its world-class in-house research that coordination of research and decisions is necessary and safe. So NIOSH—now a shell of itself—needs to be reconstituted and become a part of the new, unified entity.
But the trifurcation that keeps environmental and occupational health apart is much worse than a serious misallocation. The separation actually ruins many attempts by each agency to fulfill its core mission: More than inefficient, the separation is counter-efficient. The fundamental, and tragic, irony here is that often the easiest ways for employers to reduce emissions into the community involve increasing the amount of pollutants that remain in the workplace, while the easiest ways to comply with OSHA regulations often involve hastening the emission of harmful substances into the community and away from workers. As a result, whichever agency “gets there first” can believe that its mission has been accomplished when, in fact, its intervention has merely moved risk rather than reduced it at all.
This problem harms not only the populace but business as well. It is difficult to improve the entire production process to save lives at the lowest practical cost when a company is required to satisfy one set of mandates and another, generally at very different times. Trade associations, which in my experience tend to be more hardline than the companies they profess to represent, generally recoil at the notion of EPA and OSHA jointly crafting regulations or inspecting sites together. Some companies, however, realize that playing one agency off against the other will only increase costs and require multiple band-aids rather than a comprehensive balancing of scientific and economic realities.
We also need to admit that seeking “environmental justice,” as worthy a goal as it is, will fail if we continue to exclude from consideration the workplaces where most Americans spend half their waking hours. Until we cumulate the risks in each census tract that stem from ambient concentrations and add to them the much larger exposures where these residents work, we will at best find the locations with the worst conditions but remove only the tip of the iceberg while ignoring the bulk of it. Much more likely, we simply will not find the worst tracts at all and will let the worst injustices perpetuate.
Although I am less concerned about whether EPA, OSHA, or a new entity would house these unified functions, OSHA should be encouraged to concentrate on what it has always done relatively best: occupational safety.
But there is one lesser-known responsibility OSHA has that should definitely be shifted elsewhere: Since its founding, OSHA has appropriately been responsible for investigating and adjudicating claims of retaliation against employees when they complain or blow the whistle about workplace safety and health conditions. But over the years, Congress has forced OSHA to take on whistleblower responsibility for 25 additional program areas, such as pipeline security and financial fraud. Few people know better than I, as a former supervisor of OSHA whistleblower investigators and subsequently a vindicated victim of retaliation by OSHA, how diffident and sometimes hostile OSHA has been to dissenters. In any event, its whistleblower staff lacks any experience dealing with most of the new areas Congress has assigned to it. Whistleblowers deserve a well-funded agency that can adjudicate their claims sincerely and objectively. This is crucially important in the wake of the recent Supreme Court decision in Trump v. Slaughter. Now, not only can the President fire commissioners of the Merit Systems Protection Board for political reasons, but he can direct agency heads to fire a whistleblower without them offering any cause for the action. The central tenet of whistleblower protection, up until now, was that a dismissal could not be rationalized via a “pretextual” or bogus explanation. Now that no explanation at all is needed, no pretext is needed either.
Finally, a new chemical-risk agency could offer our society a chance to contemplate changing the markets for products and processes that leave needless environmental and health damages in their wake, rather than merely tinkering with how much risk it will deem acceptable. I have long advocated for industrial policy based on “solution-focused” thinking. When I do, I often use the following example: EPA has spent decades helping to make the water carried in disposable bottles marginally safer by reducing the parts per billion of several endocrine-disrupting chemicals that leach from the plastic. But this approach does nothing to reduce the number of these bottles produced and disposed of each year—now exceeding 60 billion units in the United States alone—along with their enormous energy use, worker exposures, and landfill disposal that returns these chemicals to the environment anyway. Less than fifty years ago, there were exactly zero such bottles made, and we never lacked for ready amounts of clean water—it was provided by drinking fountains in most buildings and street corners.
Out of the ashes of EPA, OSHA, and NIOSH, we could soon have an agency that sees all of the pros and cons of substances and products that are both useful and toxic, and one that nudges or requires industry and consumers to better protect themselves and their fellow Americans, from cradle to a further-delayed grave.
A last word to those who may come back into power in 2029 or beyond: It is human nature to come storming back and vow that the first day of your new administration will look just like the last day you were there. This time, instead of treating the previous few years as a bad dream, you have a chance to treat the previous 55 years as the suboptimal results of a choice that can finally be rethought.
This essay is part of a series titled, “Rebuilding the U.S. Regulatory System.”
