June 11, 2010 Liz Borkowski, MPH 8Comment

James Surowiecki’s latest New Yorker piece tackles the problem of weakened federal agencies failing to get tough on companies that need it. He notes that leading up to the BP Deepwater Horizon Disaster, Minerals Management Service officials “had let oil companies shortchange the government on oil-lease payments, accepted gifts from industry representatives, and, in some cases, literally slept with the people they were regulating.” And he gives other examples:

Mining regulators allowed operators like Massey Energy to flout safety rules. Financial regulators let A.I.G. write more than half a trillion dollars of credit-default protection without making a noise. The S.E.C. failed to spot the frauds at Enron and WorldCom, gave Bernie Madoff a clean bill of health, and decided to let Wall Street investment banks take on obscene amounts of leverage, while other regulators ignored myriad signs of fraud and recklessness in the subprime-mortgage market.

When considering weakened regulatory agencies, I tend to think first that elected officials have deliberately weakened them – usually at the urging of the regulated industries. (See this John Judis piece for a summary of how the Bush administration hobbled regulatory agencies, and blog posts from Rena Steinzor and James Goodwin about how Obama’s Office of Information and Regulatory Affairs is stalling coal-ash regulation.) Surowiecki, though, suggests that there are also some subtler forces at work:

The obvious problems of graft and the revolving door between government and industry, in other words, were really symptoms of a more fundamental pathology: regulation itself became delegitimatized, seen as little more than the tool of Washington busybodies. This view was exacerbated by the way regulation works in the U.S. Too many regulators, for instance, are political appointees, instead of civil servants. This erodes the kind of institutional identity that helps create esprit de corps, and often leads to politics trumping policy. Congress, meanwhile, often takes a famine-or-feast attitude toward funding, allocating less money when times are good and reinflating regulatory budgets after the inevitable disaster occurs. (In 2006 and 2007, for instance, Congress effectively cut the S.E.C.’s budget, even as the housing bubble was bursting.) This makes it hard for agencies to do consistent work. It also contributes to the sense that regulation is something it’s O.K. to skimp on.

Given that we still spend tens of billions of dollars on regulation every year, it may seem odd that attitudes can matter this much. But the history of regulation both here and abroad suggests that how we think about regulators, and how they think of themselves, has a profound impact on the work they do.

… The social psychologist Tom Tyler has shown that acceptance of a law’s legitimacy is the key factor in getting people to obey it. So reforming the system isn’t about writing a host of new rules; it’s about elevating the status of regulation and regulators.

The problem with good regulators is that they make it easy to forget about them. When we get clean water from our taps, take pills without having unexpected nasty side effects, or ride in a vehicle that experiences no dangerous malfunctions, nothing reminds us to thank the agencies who free us from worrying about the safety of our water, drugs, and vehicles.

Surowiecki ends by pointing out that regulation is good for the regulated industries, too:

The pharmaceutical industry, for instance, would be much smaller if people were seriously worried that they might be poisoned every time they took a new drug. And though executives chafe at financial regulation, the protection it provides makes investors far more likely to hand them money to play with. If we want our regulators to do better, we have to embrace a simple idea: regulation isn’t an obstacle to thriving free markets; it’s a vital part of them.

I agree, but I wonder whether it’s really something companies think about when they sign onto anti-regulatory endeavors. I suspect that most corporations, like most individuals, dramatically underestimate the chances of a disaster happening – until one happens, and then the realizations about the cause don’t last long enough to make the changes needed to prevent future catastrophes.

The best way I can see to increase respect for regulators is for people to stop the knee-jerk bureaucrat bashing and start talking about the easy-to-miss but important work regulators do. Given that even members of Congress are so often eager to distance themselves from Washington bureaucrats, I have a hard time believing this will happen.

8 thoughts on “Disasters and Disheartened Regulators

  1. If you think Madoff ran a huge scam, Amway has ripped off millions of people for several decades, to the tune of 10s of billions of dollars.

    Read about it on this website: http://thenetprofitgroup.yolasite.com and forward the information to everyone you know, so they don’t get scammed.

    Amway is a scam, and here’s why: Amway pays out as little money as they can get away with, so they support the higher level IBOs ripping off their downline via the tool scam.

    As a result, about 99% of IBOs operate at a net loss, while the top 1% make several TIMES more from their Amway tool scam than from the Amway products. This was made illegal in the UK in 2008, but our FTC is unable to pull their heads out of their butts to stop it here.

  2. “The best way I can see to increase respect for regulators is for people to stop the knee-jerk bureaucrat bashing and start talking about the easy-to-miss but important work regulators do.”

    Tell that to Celeste.

    As a bureaucrat I expect a certain amount of bashing, business doesn’t want the extra regulation, politicians want to make points back home, and of course some people just hate the government. But the people in an agency like OSHA almost universally believe in the mission of the agency, so it’s pretty easy to ignore criticism from those sources. The criticisms that come from those who share the same professional philosophy are harder not to internalize. You would expect those to be rooting you on and offering words of advise and encouragement, instead of constantly criticizing and demeaning your work.

    It is important to acknowledge that OSHA can’t always do things in a manner that is completely consistent with good public health theory, Congress and the courts simply won’t allow that, but we actually do know how to operate within those restrictions, even if others don’t see it. The criticism, however, becomes almost puzzling when the critic is over 1,000 miles away from the incident and doesn’t have many facts.

    Here are a few facts about what OSHA is doing in the Gulf.

    1. OSHA has 40-50 compliance officers in the Gulf specifically for this response. Those CSHOs have college degrees in industrial hygiene, and/or occupational safety, some may be engineers (it’s even possible that some of the CSHOs went to GW). Many will have MPHs, CIHs, CSP and/or PEs. All are experienced in risk assessment. Yes, risk assessment (every CSHO pretty much understands what best practice is, and even if we can’t enforce it we can make sure it is known).

    2. The samples posted on the OSHA website all seem to be from early in the on/near-shore cleanup/decon. The samples from 5/25 were at Elmer’s Island and Grand Isle State Park, that happens to be just about the time the oil first reached shore.

    3. OSHA has posted its “Emergency Response to Oil Spill Initial Sampling Strategy.” Included in the strategy is that every sample taken on a diffusive sampler or charcoal tube will be analyzed for “Q115.” Q115 is OSHA IH-speak for “everything under the sun that the media can collect,” which means most of the constituents of oil will be collected and analyzed for.

    4. The CSHOs taking the samples know exactly when and where the samples were taken, what the workers were doing, what PPE workers were wearing, and the weather conditions.

    5. The public knows less than 5 percent of what OSHA is doing for this response.

    From my ergonomically correct chair x miles away, #2 and #3 look to me like they are part of the exposure assessment piece of a risk assessment. Identify what people are exposed to, then decide what to do to protect them. What no one seem to be talking about is the part of the risk assessment that includes heat illness. Just think back over the last few years and the number of migrant workers in California who died from the heat. Wearing a respirator for 8 hours sucks, I know I have to do it occasionally. Wearing a respirator while also wearing Tyvex in 90 degree, 70% humidity weather, is damn dangerous, people die from that (more often than most people realize I think).

    I know that some people are going to jump on #5 and say that OSHA should be publishing more of what we’re doing, but no we shouldn’t, not during the incident. It’s not about secrecy or protecting BP or the USGC, it’s an issue of practically, the people who know the other 95% of what’s being done are the CSHOs on site doing the work. To take them away from that work to write reports just so that the rest of us can know exactly what’s going on makes no sense, intellectual and professional curiosity be damned.

  3. When I talk about knee-jerk bureaucrat bashing, I mean blanket negative statements about bureaucrats simply because they’re bureaucrats. Some people suggest that federal agencies are useless/ a waste of taxpayer money/ not doing anything except making our lives more difficult, and that we’d be better off if the federal government were half its current size. These are the attitudes I’m worried about.

    Specific critiques of agency actions don’t fit this description. When I criticize an agency for not doing its job well enough, I obviously value the agency’s work. The problem Surowiecki is pointing to is that people don’t value agencies’ work.

    When I criticize an agency, it’s usually because the agency’s leadership has made a decision I don’t agree with. I know that no matter what the agency leadership is doing, the majority of the agency employees are working hard at doing their jobs (and they probably have some of their own criticisms of the leadership.) Maybe I don’t say it often or explicitly enough, but I have enormous respect and admiration for the millions of inspectors, researchers, analysts, administrative staffers, and other civil service employees who work year in and year out to help our agencies carry out their important missions.

  4. OK, so I have a question for the experts. How much difference does wearing a respirator in addition to Tyvek, vs Tyvek alone, as far as heat stroke risk goes? I would have thought the biggest risk would be from being covered all over with the Tyvek suit, sealed with duct-tape and all. I’m sure respirators must contribute somewhat but can anyone give sort of a ball-park idea? Thanks!!

  5. Blogger bashing is apparently becoming as common as bashing bureaucrats. Everyone has a role to play. Having public health folks looking over an agency’s shoulder keeps them accountable. Abel is so wrong about OSHA not having time to tell us what they are doing. First, it doesn’t take that long with computers. Second, it is the most important thing OSHA can be doing to maintain and improve their public image.

    As far as using heat as an excuse to not provide respirators, that is definitely “two wrongs make a right” logic. Fix the heat stress problem and respirators become less horrible. Lizzie Grossman’s latest post makes me wonder why they don’t do the clean-up in very early morning hours, late at night or even at night.

    Susan, DuPont says Tyvek® breathes. “It’s six times more breathable than microporous film fabrics. And that helps reduce the risk of heat stress, so you’re more
    comfortable, more productive and safer” And there is other breathable protective clothing available that creates less heat stress than regular Tyvek®.

    Also, Susan, there is a type of respirator called Power Air Purifying (PAPR) that forces the air through the filters for the wearer, making it much easier to wear.

  6. Liz, I hope you recognize that I wasn’t aiming my comments towards you, your post just happened to be the trigger. I also don’t have any trouble when people disagreeing with OSHA, as the four readers of my blog will attest. In fact, I talked about outside people offering advice on how to correct what we’re not doing well and one of your next posts did just that (I hope the powers that be appreciate it).

    Eileen, last week the Pump Handle essentially accused me of participating in a criminal conspiracy, so yes, I lashed out. Two things angered me, one was the total lack of research into the issue, and the other was accusing me of a crime (accusing all of us in the agency based a decision by one person, Dr. Michaels, didn’t help).

    In the same way that “When it sounds too good to be true, it usually is,” is a valuable saying to keep in mind, so is the colliery “If it looks that bad, maybe you’re missing something.” No one who investigates, whether it a compliance officer or scientist or reporter, should leap to conclusions like that without checking the facts. Come on, no agency can sign a memo and use that as a basis to ignore an act of Congress.

    When I train a young compliance officer I stress 10 things beginning day one (but only #2 and #5 are relevant here): 2) Go where the evidence takes you (ie, don’t jump to conclusions); 5) Don’t ever give advanced notice of an inspection. The first goes to both being able to find hazards (versus violations) and to our credibility as a witness, the second happens to be one of the things that can get us thrown in jail, so that post hit two nerves at once.

    Speaking of jumping to conclusions, in my comment I was careful to not say that workers doing cleanup shouldn’t be in respirators, just as I am not now say they should. All I pointed out was that one piece of the risk assessment that isn’t being talked about is heat stress. I don’t know if workers should or shouldn’t be using respirators, I haven’t seen the data and I’m not on site, and I don’t know how anyone who isn’t there and reviewing the data and watching the work can possible provide an informed, professionally reliable opinion. I would estimate, however, that if there are 40 compliance officers at the various sites, they represent somewhere between 400 and 800 years of experience, not to mention all those degrees and certifications, and that represents a pretty significant risk assessment capability.

    People want to improve the way OSHA is dealing with this situation (including those of us in OSHA), but criticism without specific corrective measures doesn’t help. If someone claims we should be doing a risk assessment, fine, but what specific factors should be looked at and, more importantly, how should each of those factors be weighed?

    You said “As far as using heat as an excuse to not provide respirators, that is definitely “two wrongs make a right” logic. Fix the heat stress problem and respirators become less horrible.” “Less horrible,” that certainly inspires confidence, but how do we fix the heat stress problem? Obviously we can’t reverse global warming on time, and chilling vests may work for some people, but chiller vests either need batteries/electricity or need to be rechilled every 1-2 hours, and many of the workers are in very isolated areas and won’t be able to recharge a battery or rechill a vest. What other options am I missing?

  7. Tyvek may be breathable. Put on a tyvek suit, half face respirator, gloves and boots and work on the beach in 90 degree heat with 60% humidity and you better be drinking a lot of water and have some shade some where near by before you pass out. Abel you covered all the options.
    Maybe we can bring guest workers for the clean up.

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