[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
HAVE OSHA STANDARDS KEPT UP
WITH WORKPLACE HAZARDS?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, APRIL 24, 2007
__________
Serial No. 110-25
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Ranking Minority Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Bob Inglis, South Carolina
Raul M. Grijalva, Arizona Cathy McMorris Rodgers, Washington
Timothy H. Bishop, New York Kenny Marchant, Texas
Linda T. Sanchez, California Tom Price, Georgia
John P. Sarbanes, Maryland Luis G. Fortuno, Puerto Rico
Joe Sestak, Pennsylvania Charles W. Boustany, Jr.,
David Loebsack, Iowa Louisiana
Mazie Hirono, Hawaii Virginia Foxx, North Carolina
Jason Altmire, Pennsylvania John R. ``Randy'' Kuhl, Jr., New
John A. Yarmuth, Kentucky York
Phil Hare, Illinois Rob Bishop, Utah
Yvette D. Clarke, New York David Davis, Tennessee
Joe Courtney, Connecticut Timothy Walberg, Michigan
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Vic Klatt, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
LYNN C. WOOLSEY, California, Chairwoman
Donald M. Payne, New Jersey Joe Wilson, South Carolina,
Timothy H. Bishop, New York Ranking Minority Member
Carol Shea-Porter, New Hampshire Tom Price, Georgia
Phil Hare, Illinois John Kline, Minnesota
C O N T E N T S
----------
Page
Hearing held on April 24, 2007................................... 1
Statement of Members:
Price, Hon. Tom, a Representative in Congress from the State
of Georgia, prepared statement of.......................... 64
Journal of Occupational and Environmental Medicine study
dated February 2006, ``Evaluation of Flavorings-Related
Lung Disease Risk at Six Microwave Popcorn Plants''.... 48
Wilson, Hon. Joe, ranking minority member, Subcommittee on
Workforce Protections...................................... 3
Prepared statement of.................................... 4
Prepared statement of the Printing Industries of America,
Inc. (PIA)............................................. 69
Prepared statement of the Tree Care Industry Association
(TCIA)................................................. 71
Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Letter submitted by Adam M. Finkel, Sc.D., CIH........... 64
OSHA news release dated April 24, 2007, ``U.S. Department
of Labor's OSHA Announces Focus on Health Hazards of
Microwave Popcorn Butter Flavorings Containing
Diacetyl''............................................. 32
Statement of Witnesses:
Fellner, Baruch, attorney, Gibson, Dunn & Crutcher........... 14
Prepared statement of.................................... 16
Foulke, Hon. Edwin, Assistant Secretary of Labor,
Occupational Safety and Health Administration.............. 5
Prepared statement of.................................... 7
Mirer, Frank, professor of environmental and occupational
health sciences, Hunter School of Urban Public Health...... 18
Prepared statement of.................................... 20
Peoples, Eric, former employee of Glister-Mary Lee popcorn
factory.................................................... 9
Prepared statement of.................................... 10
``Popcorn-Worker Lung Caused by Corporate and Regulatory
Negligence,'' published in the International Journal of
Occupational Health, dated Jan.-Mar. 2007.............. 34
Schneider, Scott, director of occupational safety and health,
Laborers' Health and Safety Fund of North America.......... 11
Prepared statement of.................................... 12
HAVE OSHA STANDARDS KEPT UP
WITH WORKPLACE HAZARDS?
----------
Tuesday, April 24, 2007
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 1:37 p.m., in
Room 2175, Rayburn House Office Building, Hon. Lynn Woolsey
[chairwoman of the subcommittee] presiding.
Present: Representatives Woolsey, Payne, Bishop of New
York, Hare, Wilson, Price, and Kline.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional;
Lynn Dondis, Senior Policy Advisor for Subcommittee on
Workforce Protections; Michael Gaffin, Staff Assistant, Labor;
Peter Galvin, Senior Labor Policy Advisor; Jeffrey Hancuff,
Staff Assistant, Labor; Brian Kennedy, General Counsel; Joe
Novotny, Chief Clerk; Megan O'Reilly, Labor Policy Advisor;
Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff
Director; Robert Borden, General Counsel; Ed Gilroy, Director
of Workforce Policy; Rob Gregg, Legislative Assistant; Victor
Klatt, Staff Director; Jim Paretti, Workforce Policy Counsel;
Molly McLaughlin Salmi, Deputy Director of Workforce Policy;
Linda Stevens, Chief Clerk/Assistant to the General Counsel;
and Loren Sweatt, Professional Staff Member.
Chairwoman Woolsey [presiding]. The hearing of the
Workforce Protection Subcommittee on ``Have OSHA Standards Kept
Up With Workplace Hazards?'' will come to order.
Pursuant to Committee Rule 12(a), any member may submit an
opening statement in writing which will be made part of the
permanent record.
I now recognize myself, followed by Ranking Member Joe
Wilson, who is running over here as we speak, for an opening
statement.
In 1970, the United States Congress passed the Occupational
Safety and Health Act, OSHA, to provide every working man and
woman in the nation a safe and healthful workplace. One of the
most important roles that it gave the new agency was to develop
safety and health standards.
The standards that OSHA has established have saved
literally thousands of lives. For example, in 1978, when OSHA's
cotton dust standard was adopted, there were 40,000 cases of
brown lung disease annually. Twelve percent of all textile
workers suffered from this deadly disease. By the year 2000,
and because of the OSHA standard, brown lung had virtually been
eliminated. OSHA's 1978 standard on lead dramatically reduced
lead poisoning. And the 1989 evacuation standard, designed to
protect workers from trench collapse, has reduced deaths by
more than 20 percent, while construction activity has actually
increased by 20 percent.
OSHA has made an enormous difference in workers' lives, but
sadly many workers are still at risk from unsafe conditions in
their workplaces. The Bureau of Labor Statistics reported that
in the year 2005 there were over 5,700 workers, or 16 workers a
day, killed in the workplace.
In addition to terrible fatalities, there are millions more
workers like Mr. Peoples, who is here to speak with us today as
a witness, who suffer from injuries and illnesses based on
their working conditions.
This is not a time to slow down on protecting worker
safety. But yet that is what the administration has done. There
are various areas where OSHA has failed to do its job, and over
the coming months, this committee will look into those
failures.
Today's hearing will focus on standard setting. And in this
arena, the administration has the worst record on standard
setting of any administration in the history of the law.
The administration began on a tragic note for American
workers with the shameful repeal of OSHA's ergonomic standards.
That was followed by the removal of dozens of rules from the
regulatory agenda, including the standard to protect health
care workers against tuberculosis.
I pray that we don't live to regret this when extremely
drug-resistant T.B., which is killing two-thirds of those who
get it in South Africa, arrives. If that reaches this nation in
significant numbers, we don't have any standards. We don't know
what to do about it in our workplace.
To date, this administration has issued only one
significant health standard protecting workers against a
cancer-causing chemical called chemical hexavalent chromium.
And that standard was issued under court order; it was not done
voluntarily.
One of the worst failures of this administration is its
failure to issue a rule that requires employers to pay for
employees' personal protection equipment. This rule was almost
finished during the Clinton administration. Seven years later,
OSHA has finally agreed to issue this standard, again under the
threat of a court order.
Today we will hear the tragic story of Eric Peoples, who
has popcorn lung disease and has lost much of his lung
capacity. He faces, because of his exposure to a chemical,
possibly a shorter life than others his age.
And that chemical is called diacetyl, and it is used in
butter flavoring for popcorn. The industry and OSHA are well-
aware that exposure to diacetyl has dire health consequences
for workers, but OSHA has yet to initiate regulatory action.
In fact, the entire area of chemical regulation is a
travesty. OSHA currently regulates only about 600 chemicals out
of the tens of the thousands used in industry. Most Americans
would be shocked to learn that these standards are based on
science from the 1950s and the 1960s.
I am also concerned that OSHA is substituting voluntary
programs for enforceable standards. We want to know what
evidence OSHA has to argue that these voluntary programs are
effective replacements for OSHA standards.
We owe it to our workers to protect their health and
safety, which is what Cal-OSHA, my home state's program, is
doing.
For example, in response to a union petition, Cal-OSHA is
currently proceeding on the fast track to develop a standard
for diacetyl and in conducting aggressive inspections of
facilities that use this chemical in their operations. In
addition, in contrast to federal OSHA, Cal-OSHA is also working
on updating large numbers of its chemical standards.
The purpose of this hearing today is to begin to understand
why OSHA is not even coming close to fulfilling its original
mission and what we can do to correct it.
With that, I defer to the ranking member, Joe Wilson, who
has sprinted here, for his opening statement.
Mr. Wilson. Thank you, Madam Chairman. And indeed, I did
sprint here.
And good afternoon. I would like to thank our witnesses for
appearing before us today for what I know will be an
interesting discussion about the work of the Occupational
Safety and Health Administration.
This hearing is focused on the standard-setting process at
OSHA. Some parties may be critical of the rulemaking process,
the length of time required to create a regulation, and how
difficult it is for OSHA to prioritize its regulatory agenda.
It is interesting, though, to look at the statistics. The
Clinton administration promulgated 36 standards, three of them
in the last month of the term. To date, the Bush administration
has implemented 22 standards, with more than a year left in the
term. So from the outset, the pace of regulatory rulemaking has
not changed. The question may be of the priorities.
One area that OSHA has struggled with is an update of the
permissible exposure limits, or PELs. Our late and dear
colleague, Charlie Norwood, attempted to bring all parties
together to work on an update of the PELs, but this process
stagnated.
OSHA's attempt to update the PELs was turned back by the
11th Circuit Court of Appeals. It is important for us to find a
way to achieve the goals of the OSHA act, and I am pleased that
this is one area where the committee continues to focus its
attention.
For a rule to become final, it must meet several legal
tests. Some of these have been put in place by Congress and
some by the court system. These tests are designed to improve
the process by which workplaces are deemed safe from hazards.
I will be interested to hear from our witnesses if these
procedures improve standard setting and any suggestions they
may have to improve OSHA's standard setting in the future.
Again, I look forward to the witnesses' testimony. I,
indeed, also look forward to working with Congresswoman Woolsey
for promoting health and safety. And I thank you for being here
today to appear before us.
[The prepared statement of Mr. Wilson follows:]
Prepared Statement of Hon. Joe Wilson, Ranking Minority Member,
Subcommittee on Workforce Protections
Thank you Madam Chair and good afternoon. I would like to thank our
witnesses for appearing before us today for what I know will be an
interesting discussion about the work of the Occupational Safety and
Health Administration. This hearing is focused on the standard setting
process at OSHA. Some parties may be critical of the rulemaking
process, the length of time required to create a regulation, and how
difficult it is for OSHA to prioritize its regulatory agenda. It is
interesting, however, to look at the statistics. The Clinton
Administration promulgated 36 standards, three of them in the last
month of the term. To date, the Bush Administration has implemented 22
standards with more than a year left in the term. So, from the outset,
the pace of regulatory rulemaking has not changed. The question may be
the priorities.
One area that OSHA has struggled with is an update of the
permissible exposure limits or PELs. Our former colleague Charlie
Norwood attempted to bring all parties together to work on an update of
the PELs, but this process stagnated. OSHA's attempt to update the PELs
was turned back by the 11th Circuit Court of Appeals. It is important
for us to find a way to achieve the goals of the OSH Act and I am
pleased this is one area on which the Committee continues to focus its
attention.
For a rule to become final it must meet several legal tests. Some
of these have been put into place by Congress and some by the Court
system. These tests are designed to improve the process by which
workplaces are deemed safe from hazards. I will be interested to hear
from our witnesses if these procedures improve standard setting and any
suggestions they may have to improve OSHA's standard setting in the
future.
Again I look forward to the witnesses' testimony and thank them for
making the effort to appear before us today.
______
Chairwoman Woolsey. Without objection, all members will
have 14 days to submit additional materials or questions for
the hearing record.
I would like to introduce our very distinguished panel of
witnesses who are here before us this afternoon.
And I welcome all of you witnesses. Thank you for being
here.
For those of you who have testified before the committee in
the past, you won't need me to explain this, but if you
haven't, I need to explain our lighting system and the 5-minute
rule.
Everyone, including members of Congress, are limited to 5
minutes for presenting or questioning. The green light is
illuminated when you begin to speak. When you see the yellow
light, it means you have 1 minute remaining. When you see the
red light, it means your time has expired and you need to
conclude your testimony. Don't think for a minute you have to
stop mid-sentence or mid-thought. But it will let you know that
you have used your 5 minutes.
And be certain that, as you testify, we want you to turn on
your speaker so we can hear you, and talk directly into the
microphone.
So our witnesses today are the honorable Edwin Foulke. He
is the Assistant Secretary of Labor and the administrator of
OSHA. Prior to his current position, he was a partner in the
law firm of Jackson Lewis LLP, practicing in the area of labor
relations. From 1990 to 1995, Mr. Foulke served on the
Occupational Safety and Health Review Commission and was its
chair from 1990 to 1994. He graduated from North Carolina State
University and holds a J.D. from Loyola University and a
master's of law from Georgetown.
Scott Schneider--Scott, for the last 9 years, has been the
director of occupational safety and health for the Laborers'
Health and Safety Fund of North America.
I am looking at what order we have you in here. Well, we
are going to go down the order as you are, not as I am
introducing you.
The Laborers' Union has over 800,000 members who are
primarily construction workers. Mr. Schneider holds a master's
degree in industrial hygiene from the University of Pittsburgh
and a master's degree in zoology from the University of
Michigan.
Eric Peoples--Eric was an oil mixer at the Glister-Mary Lee
Popcorn Factory in Jasper, Missouri. He was born in Joplin. He
was raised in Carthage, Missouri, and he currently resides in
Carthage. He is a graduate of Carthage High School.
Baruch Fellner--Mr. Fellner is a partner at Gibson Dunn &
Crutcher in Washington, D.C., practicing in the area of labor
relations. He has also worked in the solicitor's office at the
Department of Labor and in the Appellate Court branch at the
National Labor Relations Board. Mr. Fellner received his B.A.
from George Washington University and his law degree from
Harvard Law School.
Franklin Mirer--Franklin Mirer is a professor of
environmental and occupational health sciences at Hunter
College in New York. For over 27 years, he was the director of
the health and safety department at the United Auto Workers.
Dr. Mirer received his bachelor's degree from Columbia and his
master's and Ph.D. from Harvard University.
Welcome to all of you.
And we will begin with you, Mr. Assistant Secretary.
STATEMENT OF EDWIN FOULKE, ASSISTANT SECRETARY OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
Mr. Foulke. Thank you very much, Madam Chairwoman and
members of the subcommittee.
Before I begin, I would request a brief moment to
personally address Mr. Eric Peoples, sitting next to me, whose
testimony here today brings in compelling terms how devastating
an occupational illness or injury can be to the employees and
to their families.
Mr. Peoples, I assure you that all of us at OSHA--and we
have a number of the career staff here--are working hard to
improve safety and health in our nation's workplaces.
Members of this subcommittee, thank you for the opportunity
to appear here today to discuss the progress that the
Occupational Safety and Health Administration is making to
protect the nation's working men and women.
OSHA has a strong record of protecting the safety and
health of our nation's workers, and I am pleased to have this
opportunity to discuss the record with the subcommittee.
OSHA uses a variety of proven strategies to accomplish its
mission of saving lives and reducing injuries and illnesses.
This balanced approach includes strong, fair and effective
enforcement, safety and health standards and guidance, training
and education, and cooperative programs, compliance assistance
and outreach.
I want to make it clear that while the agency offers
technical assistance to employers to comply with OSHA standards
and regulations, compliance is not voluntary. It is mandatory.
In fact, since 2001, OSHA proposed more than $750 million in
penalties for safety and health violations.
Furthermore, the record high number of 56 criminal
referrals by this administration since 2001, the most of any
administration, indicates the seriousness of the President's
commitment to protecting employees and enforcing the law.
This commitment approach is achieving all-time low rates.
For example, the overall workplace injury and illness rate, at
4.6 per 100 employees in 2005, is the lowest since the Bureau
of Labor Statistics began publishing data in 1973. Since 2002,
the injury and illness rate has fallen by more than 13 percent.
More importantly, the overall fatality rate has fallen 7
percent, and fatality rates among Hispanics has declined by 18
percent since 2001.
Although this is unprecedented progress, we all acknowledge
that there is still much more work left to do to accomplish the
goals of having all working men and women return home safe and
healthy at the end of every day.
Setting safety and health standards is a critical part of
our balanced approach to protecting workers. Currently, OSHA is
actively working on 21 projects which include four final rules,
10 proposed rules, two Regulatory Flexibility Act section 610
look-backs, and five other projects in early stages of
development.
I am pleased to report that the Agency has devoted
substantial resources to each of these regulatory projects,
including the payment for personal protective equipment rule,
which we expect to complete by November of this year.
With respect to silica, the Agency expects to issue a draft
analysis on the health effects and the risk assessment as part
of a scientific peer-review process. The peer-review process is
necessary and appropriate in the case of silica, due to the
extensive scientific literature and the complexity of the
subject. Conducting such a peer review will ensure that
appropriate regulatory decisions are based on firm scientific
foundation.
Let me conclude by saying that employers and employees
should have no doubt in their minds about OSHA's commitment to
enforcing the standards and regulations promulgated under the
Occupational Safety and Health Act.
The Agency's history of strong enforcement has demonstrated
the serious consequences employers face when they neglect their
responsibility of providing safe and healthful workplaces for
their employees. In fact, OSHA conducted more than 38,000
federal inspections in 2006 and has exceeded its inspection
goals in each of the last 7 years.
OSHA's aggressive enforcement record, coupled with the fact
that more than one-quarter of all OSHA-related criminal
referrals to the Department of Justice have occurred since 2001
illustrates the administration's strong commitment and desire
to protect employees and rightfully enforce the law.
To complement these enforcement efforts, the Agency will
continue to provide the regulating committee with much needed
knowledge, tools and assistance to comply with the law.
Madam Chair, I would be happy to answer any questions that
you or the committee may have. And I believe we have submitted
a longer statement for the record.
[The statement of Mr. Foulke follows:]
Prepared Statement of Edwin G. Foulke, Jr., Assistant Secretary,
Occupational Safety and Health Administration, U.S. Department of Labor
Madam Chairwoman and Members of the Subcommittee: Thank you for the
opportunity to appear today to discuss the progress that the
Occupational Safety and Health Administration (OSHA) is making to
protect the Nation's working men and women. OSHA has a strong record of
protecting the safety and health of our Nation's workers, and I am
pleased to have the opportunity to discuss that record with the
Subcommittee.
The Occupational Safety and Health Act (OSH Act) was enacted in
1970 to protect employees from hazards that may cause injury, illness,
or death, and we take our obligations under this statute very
seriously. We are proud of our record of results.
OSHA uses a variety of proven strategies to accomplish its mission
of saving lives and reducing injuries and illnesses. This balanced
approach includes: 1) strong, fair, and effective enforcement; 2)
safety and health standards and guidance; 3) training and education;
and 4) cooperative programs, compliance assistance and outreach. I want
to make it clear, however, that, while we offer technical assistance to
employers to comply with OSHA standards, compliance is not voluntary.
There is no such term or practice as ``voluntary compliance.''
In fact, since 2001, as part of its strong enforcement program,
OSHA proposed more than three-quarters of a billion dollars in
penalties for safety and health violations and made 56 criminal
referrals to the Department of Justice, which represents more than 25
percent of all criminal referrals in the history of the Agency.
OSHA's balanced strategy is achieving results, as evidenced by all-
time low occupational injury, illness, and fatality rates. The overall
workplace injury/illness rate, at 4.6 per 100 employees in 2005, is the
lowest since BLS began publishing data in 1973. Since 2002, the injury/
illness rate has fallen by more than 13%. Moreover, the overall
fatality rate has fallen by 7 percent, and by 18 percent among
Hispanics, since 2001. These numbers highlight the Administration's
commitment and success in protecting the safety and health of the
Nation's workforce.
A key component of OSHA's balanced approach is the development of
protective safety and health standards and regulations. OSHA has set
ambitious goals for its regulatory program as evidenced by its
regulatory agenda published in the Federal Register last December. Let
me assure you that the Agency is fully committed to achieving these
goals.
As you are aware, rulemaking for safety and health standards is a
complex process, which is governed by more than 30 years of
Congressional, Judicial, and Executive Branch mandates. For example, as
a result of judicial interpretations of the OSH Act, the Agency must
study the feasibility and potential impacts of its standards in more
depth than was the case early on in OSHA's history. In addition, the
science impacting regulatory decisions has increased over the years in
both volume and complexity.
OSHA has set ambitious goals under its current regulatory program.
OSHA is actively working on 21 projects which include: four final
rules, ten proposed rules, two Regulatory Flexibility Act Section 610
``lookbacks,'' and other projects in the early stages of development.
The Agency has devoted substantial resources to each of these
regulatory projects, and I am committed to doing everything in my power
to achieve these goals.
OSHA's recent substantial progress on its regulatory program, in
part, includes:
1. Amending the Respiratory Protection Standard
2. Completing the SBREFA process for Cranes & Derricks
3. Publishing an Advanced Notice of Proposed Rulemaking (ANPRM) to
amend the Hazard Communication Standard for global harmonization of
classifying and labeling chemicals
4. Publishing an ANPRM for the Standards Improvement Project
5. Holding stakeholder meetings on ionizing radiation
6. Publishing a final standard on Fire Protection in Shipyards
7. Publishing a final standard for Electrical Equipment
Installations
8. Publishing a proposed standard on Explosives
In addition, OSHA is diligently working on a number of other
regulatory agenda items, such as the Payment for Personal Protective
Equipment (PPE) rule, which we expect to complete by November 2007. The
Agency will soon be issuing an ANPRM on mechanical power presses, and
final or proposed rules to update a number of standards based on recent
consensus standards.
With respect to silica, the Agency expects to issue a draft
analysis on the health effects and risk assessment as part of a
scientific peer review process. The peer review process is necessary
and appropriate in the case of silica due to the extensive scientific
literature and complexity of the subject. Conducting such a peer review
will ensure that appropriate regulatory decisions are based on a firm
scientific foundation.
OSHA has also received two petitions for Emergency Temporary
Standards (ETS) to address important workplace health issues: pandemic
flu preparedness and diacetyl in food flavorings.
Pandemic Flu:
The Occupational Safety and Health Act (OSH Act) Section 6(c)(1)
states that an ETS is to be issued when ``employees are exposed to
grave danger from exposure to substances or agents determined to be
toxic or physically harmful or from new hazards'' and OSHA can show
``that the emergency temporary standard is necessary to protect
employees from such danger.'' Currently, all available medical evidence
indicates that no human influenza pandemic virus exists. Therefore OSHA
cannot, at this time, meet the legal requirements of the OSH Act to
issue an ETS on pandemic flu and OSHA has denied the ETS petition. This
does not mean that OSHA is sitting back and waiting for a pandemic to
strike before taking any action.
To the contrary, OSHA has taken measures to assist employers and
workers to prepare for and respond to a pandemic influenza. OSHA has
worked closely with the White House, the Department of Health and Human
Services (HHS), and the Department of Homeland Security (DHS) and other
Federal agencies to implement the President's National Strategy for
Pandemic Influenza. As part of this effort, OSHA developed a guidance
document entitled: Preparing Workplaces for an Influenza Pandemic,
which helps employers and workers assess risk levels and provides
guidance on how to plan now for a possible pandemic in the future. The
Agency is also developing guidance specifically for the health care
industry that includes recommendations for respiratory protection. Up-
to-date information on pandemic flu preparedness is provided through
www.OSHA.gov and www.pandemicflu.gov. Essentially, OSHA has already put
in place the protections and policies that would be used should a
pandemic strike.
Diacetyl:
In 2001, OSHA took immediate action when the hazard of butter
flavorings containing diacetyl was brought to the Agency's attention by
NIOSH's interim report on microwave popcorn manufacturing plants. The
report's findings indicated that uncontrolled exposure to butter
flavorings containing diacetyl was associated with the development of a
severe obstructive lung disease called bronchiolitis obliterans.
OSHA promptly alerted its Regional Administrators and Area
Directors to NIOSH's findings and instructed its field personnel to
look into the issue when encountering individuals working around butter
flavoring in popcorn manufacturing. OSHA's Region VII published a
brochure on this topic and arranged for its distribution in the region.
In 2004, OSHA issued a memorandum to senior field managers and
encouraged them to contact employers in their regions who may have
workers exposed to this potential hazard.
To further protect workers who may be exposed to this hazard, OSHA
is finalizing a National Emphasis Program (NEP) for butter flavorings
containing diacetyl in the manufacturing of microwave popcorn. The goal
is to direct inspections to the facilities where workers may be at the
greatest risk of exposure to this hazard. In addition, the NEP contains
elements aimed at educating stakeholders about the hazard posed by
butter flavorings containing diacetyl. Implementation of this NEP would
allow OSHA to begin inspecting microwave popcorn manufacturing
facilities by the end of May, and to inspect every such facility under
Federal jurisdiction by the end of this year. This will be followed by
a second NEP that focuses on establishments manufacturing food
flavorings containing diacetyl.
OSHA is also developing guidance to alert employers and workers to
the potential hazards associated with food flavorings containing
diacetyl. The guidance will provide recommendations on how to control
these hazards and to ensure that information about those hazards is
effectively communicated to workers.
The Agency is currently reviewing the petition for an Emergency
Temporary Standard and is engaged in site visits to microwave popcorn
and flavor manufacturing facilities in order to fairly evaluate the
merits of the petitioner's request.
Employers and workers should have no doubt about OSHA's commitment
to enforcing the standards and regulations promulgated under by the OSH
Act. The Agency's history of strong enforcement has demonstrated the
serious consequences employers face when they neglect their
responsibility of providing safe and healthful workplaces for their
workers. In fact, OSHA conducted 38,579 Federal inspections in 2006 and
has exceeded its inspection goals in each of the last 7 years. OSHA's
aggressive inspection record, coupled with the fact that more than one-
quarter of all criminal referrals to the Department of Justice in the
Agency's history have occurred since 2001, indicates the seriousness of
the Administration's commitment to protecting workers and enforcing the
law.
At the same time, the Agency is committed to providing the
regulated community with the knowledge, tools, and assistance needed to
comply with the law. By using all of OSHA's programs effectively, the
Agency is able to save a significant number of lives each year. More
workers return home safely each day because of the efforts of OSHA, its
State Plan partners and all stakeholders who are committed to
protecting employees from occupational hazards.
Madam Chairwoman, I would be happy to answer any questions.
______
Chairwoman Woolsey. Thank you, Mr. Secretary.
Mr. Peoples?
STATEMENT OF ERIC PEOPLES, FORMER EMPLOYEE OF GLISTER-MARY LEE
POPCORN FACTORY
Mr. Peoples. My name is Eric Peoples. I was born in Joplin,
Missouri, and raised in Carthage, Missouri, where I currently
reside. I am 35 years old and have been married to Cassandra
Peoples for 14 years. I have two children: Adrianna, age 13,
and Brantley, age 11.
I have bronchiolitis obliterans. Bronchiolitis obliterans
is a severe, progressive disease of the lung which has robbed
me of my health, deprived my wife of a husband and my children
of a daddy. A jury awarded me $20 million for my injuries.
I went to work at the Jasper popcorn plant in the fall of
1997 and left in March of 1999. I would give anything to know
then what I know now.
At the time I was in perfect health, looking forward to a
long and healthy life. The plant was run by local people and
was one of the best jobs in the area. My co-workers were kind,
honest people and treated me well the entire time that I worked
there.
The plant manufactured microwave popcorn. The process
combined oil, popcorn, butter flavor, salt, into microwaveable
bags. I was promoted soon after I started and became a mixer.
The following facts are only known to me because they were
discovered in my lawsuit in 2004. What the Jasper plant did not
know was that the butter flavor that they were using had an
increased quantity of diacetyl, a ketone that imparts a buttery
taste. Many butter flavors contain about 3 percent diacetyl.
This butter flavor contained 10 percent.
The company that supplied the butter flavor, Bush Boake
Allen, a subsidiary of International Flavors and Fragrances,
IFF, had extensive notice about hazards of butter flavor. They
treated butter flavor as a hazardous material within their own
plant.
Since at least 1994, their own workers were required to
wear respiratory protection when working around the butter
flavor. Despite wearing full-face respirators, many of the
employees suffered severe eye injuries. Because of the damage
and dangers of the product, the entire manufacturing process
was enclosed so no one would be exposed to the vapors.
In addition, information had come to IFF about the
respiratory effects of exposure to diacetyl. In 1986, two
employees of a baking company had been diagnosed with
bronchiolitis obliterans while mixing a butter flavoring for
use in the cinnamon rolls.
IFF's trade organization, the Flavoring and Extract
Manufacturers Association, or FEMA, supplied experts to the
defendants in the case. The case was settled before trial.
In 1994, BASF Chemical Company, a supplier of diacetyl,
sent IFF a material safety data sheet, MSDS, which disclosed
rats that had inhaled the chemical diacetyl developed severe
respiratory problems, including emphysema.
Additionally, another flavor company, Givaudan, had
reported to FEMA that in 1996 flavoring chemicals were causing
bronchiolitis obliterans in their plant. FEMA had a seminar in
1997 warning flavoring companies about this danger.
Despite all of this information, the buckets containing
this product said the product was safe. The material safety
data sheet said the product had no known health hazards, and
that is what I believed.
Let me bring it home for you, if I can. I have a 20 percent
lung capacity. I am currently on the inactive lung transplant
registry. One case of pneumonia could cause me to need the
transplant now.
The average rate of survival for someone with a lung
transplant is about 5 years. Seventy-five percent of lung
transplant patients are dead after 10 years.
One of the doctors who worked on the first case involving
the two workers with bronchiolitis obliterans in 1990 said the
flavoring industry was using workers as blue collar guinea
pigs.
I played by the rules. I worked to support my family. The
unregulated industry virtually destroyed my life. Don't let it
destroy the lives of others. These chemicals that are used on
food in large-scale production must be tested and proper
instructions and labeling supplied with their sale.
Thank you.
[The statement of Mr. Peoples follows:]
Prepared Statement of Eric Peoples, Former Employee of Glister-Mary Lee
Popcorn Factory
My name is Eric Peoples. I was born in Joplin, Missouri and raised
in Carthage, Missouri where I presently reside. I am 35 years old and
have been married to Cassandra Peoples for 14 years. I have two
children, Adrianna, age 13 and Brantley, age 11. I have bronchiolitis
obliterans. Bronchiolitis obliterans is a severe, progressive disease
of the lung which has robbed me of my health, deprived my wife of a
husband and my children of a Daddy. A jury awarded me $20 million
dollars for my injuries.
I went to work at the Jasper Popcorn Company in the fall of 1997
and left in March, 1999. I would give anything to have known then what
I know now. At that time I was in perfect health, looking forward to a
long, healthy life. The plant was run by local people and was one of
the best jobs in the area. My co-workers were kind, honest people and
treated me well the entire time I worked there.
The plant manufactured microwave popcorn. The process combined
popcorn, oil, butter flavor and salt into microwaveable bags. I was
promoted soon after I started there and became a mixer.
The following facts are only known to me because they were
discovered in my lawsuit in 2004. What the Jasper Plant did not know
was that the butter flavor they were using had an increased quantity of
diacetyl, a ketone that imparts a buttery taste. Many butter flavors
contain about 3% diacetyl. This butter flavor contained 10%.
The company that supplied the butter flavor, Bush Boake Allen, a
subsidiary of International Flavors & Fragrances (IFF) had extensive
notice about the hazards of butter flavor. They treated butter flavor
as a hazardous chemical within their own plant. Since at least 1994
their own workers were required to wear respiratory protection when
working around the butter flavor. Despite wearing full-face respirators
many of their employees suffered severe eye injuries. Because of the
dangers of the product the entire manufacturing process was enclosed so
no one could be exposed to the vapors.
In addition, information had come to IFF about the respiratory
effects of exposure to diacetyl. In 1986, two employees of a baking
company had been diagnosed with bronchiolitis obliterans while mixing a
butter flavoring for use on cinnamon rolls. IFF's trade organization,
the Flavoring and Extract Manufacturers Association (FEMA), supplied
experts to the defendants in the case. The case was settled before
trial.
In 1994 BASF Chemical Company, a supplier of diacetyl sent IFF a
Material Safety Data Sheet (MSDS) which disclosed rats that had inhaled
the chemical diacetyl developed severe respiratory problems including
emphysema. Additionally, another flavor company, Givaudan, had reported
to FEMA in 1996 that flavoring chemicals were causing bronchiolitis
obliterans in their plant. FEMA had a seminar in 1997 warning flavoring
companies about this danger.
Despite all this information the buckets containing this product
said the product was safe. The Material Safety Data Sheets said the
product had ``no known health hazards'' and that's what I believed.
Let me bring it home to you if I can. I have a 24% lung capacity. I
am currently on the inactive Lung Transplant registry. One case of
pneumonia could cause me to need the transplant now. The average rate
of survival for someone with a lung transplant is about five years. 75%
of lung transplant patients are dead after 10 years.
One of the doctors who worked on the first case involving the two
workers with bronchiolitis obliterans in 1990 said that the flavoring
industry was using workers as ``blue collar guinea pigs.''
I played by the rules. I worked to support my family. This
unregulated industry virtually destroyed my life. Don't let it destroy
the lives of others. These chemicals that are used on food in large
scale production must be tested and proper instructions and labeling
supplied with their sale.
______
Chairwoman Woolsey. Thank you.
Mr. Schneider?
STATEMENT OF SCOTT SCHNEIDER, DIRECTOR OF OCCUPATIONAL SAFETY
AND HEALTH, LABORERS' HEALTH AND SAFETY FUND OF NORTH AMERICA
Mr. Schneider. Thank you very much for the opportunity to
testify today. I appreciate it. It is an important hearing.
The OSHA standard-setting process is broken. There are
several reasons for this: first, an inadequate budget for
setting standards; second, the layers of review that have been
added over the years by Congress and the White House; and
third, the lack of political will.
The silica standard is a good example. Silica causes a
debilitating lung disease called silicosis. It is estimated
that 3,600 to 7,300 people will get silicosis each year. Ten
years ago, silica was declared a carcinogen, and OSHA and NIOSH
held a national conference to eliminate silicosis.
The OSHA standard is so out of date it requires a
measurement method that hasn't been used in industry since 1983
and OSHA itself has called obsolete. OSHA still has not
committed to a date for publishing a proposed rule.
Setting standards for construction has been particularly
problematic. Many standards are set for general industry that
exclude construction with the promise to eventually extend
coverage. Often this doesn't happen or only happens years
later.
Hearing loss prevention is a worst-case example. In 1983,
OSHA published a hearing conservation standard for general
industry, promising to come out with one for construction
later. Now, 24 years later, we still don't have coverage. OSHA
has not even committed to publishing a proposal. In the
meantime, thousands of construction workers continue to lose
their hearing.
Other states, like California and Washington, are
regulating some of these hazards. Why can't OSHA? This
committee should demand a response from OSHA and a plan to move
forward. Congress should consider a number of solutions to this
problem, including, first, a standards board like the one used
in California.
Second, setting time limits for OSHA to respond to
petitions with the burden on them to explain any denials, and
time limits for moving forward to a proposal and a final rule.
Third, rulemaking could be expedited if notices of proposed
rulemaking could be published with less review since they do
not represent a final standard.
And fourth, emergency temporary standards should be
expanded for any hazards that present a high risk.
The current system is broken and needs a serious fix. And I
appreciate this committee taking the first step by holding this
hearing. And I will submit my full statement for the record.
Thank you very much.
[The statement of Mr. Schneider follows:]
Prepared Statement of Scott P. Schneider, MS, CIH, Director of
Occupational Safety and Health, Laborers' Health and Safety Fund of
North America
My name is Scott Schneider. I am the Director of Occupational
Safety and Health for the Laborers' Health and Safety Fund of North
America, a joint labor-management fund of the Laborers' International
Union of North America (LIUNA) and its signatory contractors. The
Laborers' Union represents about 800,000 mostly construction workers in
the United States and Canada. I am a Certified Industrial Hygienist and
a Fellow member of the American Industrial Hygiene Association. I have
been working on occupational safety and health issues for the Labor
movement for over 26 years. I am also a former member of the OSHA
Advisory Committee for Construction Safety and Health (ACCSH).
The OSHA Act was passed with the promise to protect workers in
America from death and serious injury and illness on the job. That
promise has been broken.
My first introduction to OSHA rulemaking came in 1984 when I
testified at an OSHA hearing on a proposed asbestos standard. My
daughter was born during those hearings. It took OSHA 10 years to
finalize that rule. Each year I would remind the folks at OSHA what
grade my daughter was in at school until the final rule was issued when
she was almost entering middle school. The delays in this instance were
not in the process itself so much, the rule was published two years
after the hearing, but from the litigation after because the published
rule was not protective enough. Now, however, the delays occur much
earlier, before the proposals are even published. It was an early
lesson for me about the difficulty we face in gaining protection for
workers.
When OSHA was created in 1970, OSHA standards were conceived as one
leg of a three legged stool--standards, enforcement and outreach. While
regulations cannot solve all problems, they are necessary to address
market failures in order to keep the playing field level and set a
minimum standard for all employers to meet. Many OSHA standards are
outdated and the process for updating them or setting new ones is
broken. There are three main reasons for this:
1) Lack of budget--only three percent of OSHA's budget--currently
about $16 million--goes for standard setting. Currently the standards
office is also responsible for developing guidance so the amount for
new standards is even less.
2) Regulatory review--Over the years layers of review have been
heaped on OSHA causing lengthy delays in the rulemaking process. New
rules have to go through advisory committee review, paperwork review,
small business review, OMB review, potential Congressional review and,
new this past year, external scientific review.
3) Lack of political will--Many needed standards just never get put
on the regulatory agenda or sit there for years because the
administration is not interested in their promulgation.
About thirteen years ago OSHA began to use ``negotiated
rulemaking'' to speed up the process and, hopefully, avoid litigation.
They convened a panel of industry experts, both labor and management,
to develop a draft consensus rule. Once published, because of the
consensus, there should be less chance of litigation. But even when
OSHA has used negotiated rulemaking, the publication of the proposed
rule can often take years. The new Cranes and Derricks standard for
construction was developed by a negotiated rulemaking team through
monthly meetings over the course of one year. Consensus was difficult
but was finally achieved. Yet, almost three years later the proposed
rule has not been published. It is currently scheduled for publication
in October, although these deadlines have a way of slipping.
Construction standards
OSHA has a bad habit of setting standards for general industry and
exempting the construction industry from coverage, promising future
rulemaking that may never come. Meanwhile construction is one of the
most dangerous industries in the country with 100 construction workers
dying on the job each month. In 1993, OSHA issued a standard to protect
workers in confined spaces from the danger of asphyxiation. This
standard was supposed to be adapted for construction. The calendar
claims that a proposed rule would be issued by February 2007, but again
that hasn't happened. After 14 years, we still don't have a proposed
rule and workers keep dying in confined space fatalities.
In 1998, OSHA issued a general industry ``lockout/tagout'' standard
to prevent injuries among workers doing maintenance on machinery. The
development of a proposed standard for construction was dropped in
September 2001 when OSHA summarily dropped over dozen proposed rules
(including a proposal for comprehensive safety and health programs in
construction and improving sanitation in construction) from its agenda,
claiming it did not have the resources to pursue them all.
While standards need to be modified to meet the unique
characteristics of the construction industry, that should not require a
10, 15 or 20 year delay. Such standards can and should be developed
simultaneously with those for general industry. The nation's seven
million construction workers do not deserve second class protection.
Silica and Hearing Loss in Construction
Silica is a common dust hazard in construction. Its dangers have
been known for about three hundred years. Its cancer-causing properties
have been well documented for over ten years. The risk estimates show
very high risk of silicosis and cancer from exposures. Between 3,600
and 7,300 people are estimated to get silicosis each year. At the same
time, numerous studies document successful and inexpensive control
methods to reduce dust levels. The measurement methods required by OSHA
for measuring silica levels are, by their own admission, ``obsolete''
and have not been used in voluntary standards since 1983. I'm not even
sure how OSHA can enforce the current standard given the problems with
measurement methods. The voluntary standard (TLV) for silica exposures
was cut in half again last year for the second time in the past nine
years. Yet OSHA's standard is mired in the past.
OSHA identified silica as a priority for its rulemaking efforts in
1994. Ten years ago OSHA and NIOSH held a National Conference to
Eliminate Silicosis. Silica has been on the OSHA regulatory calendar
for almost ten years. A draft standard has been developed and was
reviewed by SBA in 2003. A peer review of the health effects data was
to be completed this month. Yet there is still no date certain for a
proposed rule to be published. While we wait for OSHA to move forward,
construction workers and others continue to suffer and die from
debilitating lung diseases and cancer as a result of this delay.
Hearing loss is an enormous problem in construction. In 1983, OSHA
published a hearing conservation standard for general industry that
triggers a comprehensive hearing protection program at less than half
the allowable exposure limit for construction workers. Construction
workers were excluded from that standard but OSHA promised to extend
coverage in the future. Twenty-four years later OSHA's regulatory
calendar now lists this as a ``long-term action'' and does not commit
the agency to issuing a standard. Seven years ago last month at a
national conference hosted by the Laborers' Health and Safety Fund on
preventing hearing loss in construction, a previous OSHA assistant
secretary claimed it would be a priority for his agency. That
commitment has been lost. In the meantime thousands of construction
workers have lost their hearing and their quality of life. Workers who
have lost hearing may also be in danger of their lives on the job if
they cannot hear warnings.
Some states have moved forward while OSHA delays. Washington State
extended the hearing conservation standard to construction several
years ago. New Jersey has instituted a ban on the dry cutting of
masonry and California is expected soon to follow suit. Washington
State has just published a tough new standard for crane safety, well
before an OSHA rule is even proposed.
We urge the committee to press for a report on the status of these
rulemakings, why OSHA has not moved more quickly to address these
serious hazards and what their plan is to move forward on both these
critical issues.
How can we fix this problem?
Congress should seriously consider a legislative fix to this
problem. Here are several options to be considered:
1) Standards Board--California has had success with a Standards
Board in promulgating many regulations, e.g. heat stress, safety and
health programs, which OSHA has not even begun to consider. The Board
has labor, management and academic members. One of LIUNA's Vice
Presidents serves as a member of that Board.
2) Time Limits--Congress can set time limits for OSHA to consider
and then issue proposals and final rules. In the past Congress has
mandated that OSHA issue rules within a six-month period and the agency
has done so (e.g. lead, hazardous waste). Congress should give OSHA a
limited time, say four months, to consider any petition for new
standards and require the agency to publish a response in the Federal
Register as to its reasons for accepting or denying the petition. The
burden should be on the agency to show why a standard should not be
issued. Once committed to a rule making, the agency would be given
additional deadlines to meet to ensure that rules are issued in a
timely manner, say no more than three years. Congress would have to
provide additional funding for OSHA dedicated to standard setting in
order for it to meet these deadlines.
3) Expedited Rulemaking--Congress should streamline the rulemaking
process. Once OSHA commits to developing a standard, a Notice of
Proposed Rulemaking is published. These Notices of Proposed Rulemaking
(NPR) undergo extensive review before they are published. Then they are
reviewed by the public through a series of public hearings. The final
rule is issued after a review of the record created through these
public hearings. The NPR is not the final rule and should not be viewed
as an end product. The vetting of NPRs is excessive and onerous.
Congress should reduce the burden of proof needed for issuance of an
NPR.
4) Emergency Temporary Standards (ETS)--Congress should review and
expand the ability of OSHA to issue ``emergency temporary standards.''
This section of the Act has been undermined by court decisions and is
not used any more because of that. Congress could define risk criteria
that once met would allow issuance of an ETS to speed up rulemaking for
high risk hazards.
The current system is broken and blocked. We need a serious effort
to solve this problem. Workers should not have to wait decades for
needed protections. I hope Congress will take up this issue and craft a
workable solution. This hearing is an important first step.
______
Chairwoman Woolsey. Thank you, Mr. Schneider.
Mr. Fellner?
STATEMENT OF BARUCH FELLNER, ATTORNEY, GIBSON, DUNN & CRUTCHER
Mr. Fellner. Chairwoman Woolsey, members of the Workforce
Protection Subcommittee, my name is Baruch Fellner. I am an
attorney with the law firm of Gibson, Dunn & Crutcher.
Since OSHA's birth some 35 years ago, I have, as it were,
worked both sides, having shaped OSHA's enforcement policies
and priorities during its first decade and having questioned
them thereafter.
I therefore hope to bring a broad, substantive and
historical perspective to this committee's deliberations. To
that end, I will reject the temptation of answering the
question posed at today's hearing with a resounding yes, yes,
that OSHA has moved with all deliberate speed in responding to
workplace hazards.
That simple response is supported, indeed, by the fact that
American workplaces, as you have heard, have become
demonstrably safer, as evidenced by the steady decline of
reported workplace injuries, illnesses and fatalities.
A specific example of that process working involved an
industry challenge to OSHA's most recent hexavalent chromium
standard. I negotiated the settlement of that challenge on
behalf of the electroplating industry.
It was beneficial to all parties. It was signed by the
industry, OSHA, by Public Citizen and by the United
Steelworkers.
Nevertheless, it is clear that, like any other agency
dealing with complex scientific, technological and economic
issues, OSHA's task is enormously difficult and time-consuming,
and I would respectfully submit with good reason.
First, the OSHA statute requires the Agency to make
detailed findings of significant risk of material impairment of
employee health and to establish technological and economic
feasibility before it can pursue regulation of a workplace
hazard. These are not simple tasks. And to do them in a cursory
fashion is to invite court rejection of OSHA standards.
Second, OSHA's regulations are on the frontiers of science.
They rely on a variety of often conflicting retrospective,
cross-sectional, prospective and, the gold standard, randomized
control trial studies. Epidemiological and biostatistical
analyses do not make OSHA's job any easier, and often intuition
and anecdote that fuel public policy clash with evidence-based
medicine.
And OSHA must do all of these things based upon what the
statute describes as the best available evidence. Therefore, in
the context of such cutting-edge science, OSHA's task of
establishing permissible exposures limits is, indeed, a
daunting one.
Third, nor can OSHA simply cut through all this complexity
and recognize a few studies that seem to point in the direction
of most protective standard it can promulgate. Even if the
Agency could get away with such a truncated process, which I
submit it cannot, it is simply not good public policy to ignore
the enormous costs of OSHA regulations.
For example, by OSHA's own admission, the ergonomics
regulation rejected by Congress under the Congressional Review
Act would have cost American industry billions--that is
billions--of dollars and made it the most expensive regulation
in Department of Labor history and, some would suggest, in the
history of the Republic.
In the context of a global economy and the outsourcing of
American jobs, good public policy demands an appropriate
balance between a standard-setting process that keeps up with
workplace hazards and one that does not jeopardize the very
existence of those workplaces.
Fourth, OSHA's regulatory actions are subject to the
requirements of the Administrative Procedures Act. Since 1946,
the APA and appellate review have been this Nation's insurance
policy against arbitrary and capricious agency action.
And as this Congress well knows, it provides for notice and
comment. It insists that all parties, not only those parties
that are directly affected--and we were all moved by Mr.
Peoples' statement--by substances themselves but also those
parties that will be regulated by the very OSHA standards
themselves.
We would submit that in a democracy this transparency, this
notice and comment process, is more fundamental than any
individual OSHA standard itself.
Fifth, and perhaps most importantly, the question before
this committee frames the fundamental issue of OSHA priorities.
What are the workplace hazards du jour, and should they
galvanize OSHA's immediate attention? Can or should OSHA's
priorities be micro-managed outside the Agency?
And in this regard, I think the ergonomics regulatory
process is particularly instructive. It is a classic example of
the doctrine of unintended consequences. The massive amounts of
time and resources applied over 10 years to the ergonomics
regulation clearly delayed and prevented the promulgation of
other OSHA standards that would have been responsive to
workplace hazards.
I welcome the opportunity to address these important
questions as to the pace of OSHA standard setting. I
respectfully submit that while the process appears glacial and
cumbersome, it strikes an appropriate balance among the complex
scientific, economic and public policy considerations.
I have submitted for the record a complete version of my
comments, and I look forward to your questions.
[The statement of Mr. Fellner follows:]
Prepared Statement of Baruch A. Fellner, Gibson, Dunn & Crutcher, LLP
Summary of Testimony
This testimony will concentrate on the legal and public-policy
constraints that prevent immediate promulgation of occupational safety
and health standards. Among those constraints are requirements for
notice and comment as well as court review of OSHA standards; the
complexities of science and statistics on which such standards are
based; the OSH Act statutory framework requiring findings of
significant risk and feasibility to support OSHA standards; the
staggering costs of such regulations; and the practical impact on
available resources of competing regulatory priorities.
Chairman Woolsey, Members of the Workforce Protections
Subcommittee, my name is Baruch Fellner, an attorney with the law firm
of Gibson, Dunn & Crutcher, LLP. I very much appreciate your invitation
to participate in this important hearing dealing with the question
``Have OSHA standards kept up with workplace hazards?'' I appear this
afternoon in my personal capacity as a citizen and not on behalf of any
clients. Indeed, since OSHA's birth over 35 years ago, I have worked
both sides, having shaped OSHA's enforcement policies and priorities
during its first decade and questioned them thereafter. I therefore
hope to bring a broad substantive and historical perspective to this
Committee's deliberations.
To that end, I will reject the temptation of answering the question
posed at today's hearing with a resounding ``yes''--that OSHA has moved
with all deliberate speed in responding to workplace hazards. That
simple response is supported by the fact that American workplaces have
become demonstrably safer as evidenced by the steady decline of
recorded workplace injuries, illnesses and fatalities--all while the
economy has grown and jobs have increased at enormous rates over the
past 35 years. Notwithstanding the pace of regulations, OSHA must be
doing something right.
Instead of such a facile response, however, allow me to draw upon
my experiences as a government attorney trying to get standards
promulgated and then defending them, as well as a management attorney
challenging such standards and finally as one who facilitates the
settlement of such standards challenges in a manner that promotes the
interests of all parties. For example, I represented the electroplating
industry in its challenge to OSHA's most recent hexavalent chromium
standard. We resolved our challenge to OSHA's standard in a settlement
signed by the industry, OSHA, Public Citizen and the United
Steelworkers. This agreement was recognized as a win for all parties
and the vindication of a process that functioned properly to protect
American workers.
Despite some evidence that the OSHA regulatory process is working,
I would be the first to acknowledge that like any other agency dealing
with complex scientific, technological and economic issues, OSHA's task
is enormously difficult and time consuming. And, I would respectfully
submit, with good reason.
First, the OSHA statute, as interpreted by decades of case law,
requires the agency to make detailed findings of significant risk of
material impairment of employee health before it can pursue regulation
of a workplace hazard. See, e.g., Indus. Union Dep't, AFL-CIO v. Am.
Petroleum Inst. (``Benzene''), 448 U.S. 607, 639 (1980) (holding that
Secretary can regulate only if a ``significant risk of a material
health impairment'' exists (emphases added)). In addition, OSHA must
gather credible evidence with respect to the technological and economic
feasibility of its regulations, and it must do so industry by industry.
United Steelworkers v. Marshall, 647 F2d 1189 (D.C. Cir. 1980).
Finally, it must perform what amounts to a cost benefit analysis. These
are not simple tasks and to do them in a cursory fashion is to invite
court rejection of OSHA standards.
Second, OSHA's regulations are on the frontier of science. They
rely on a variety of retrospective, cross-sectional, prospective and
randomized controlled trial studies. Epidemiological and biostatistical
analyses do not make OSHA's job any easier. And often, intuition and
anecdote that fuel public policy clash with evidence-based medicine.
Therefore, in the context of such cutting edge science, OSHA's task of
establishing permissible exposure limits is indeed a daunting one. See
Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000). (``In
the face of conflicting evidence at the frontiers of science, courts'
deference to expert determinations should be at its greatest'').
Third, nor can OSHA simply cut through all this complexity and
recognize a few studies that seem to point in the direction of the most
protective standard it can promulgate. Even if the agency could get
away with such a truncated process, which it cannot as I will discuss
in a moment, it is simply not good public policy to ignore the enormous
costs of OSHA regulations. For example, by OSHA's own admission, the
ergonomics regulation, rejected by Congress under the Congressional
Review Act, would have cost American industry billions of dollars and
made it the most expensive regulation in Department of Labor history,
and some would suggest in the history of our Republic. In the context
of a global economy and the outsourcing of American jobs, good public
policy demands an appropriate balance between a standard setting
process that keeps up with workplace hazards and one that does not
jeopardize the existence of those workplaces.
Fourth, OSHA's regulatory actions are subject to the requirements
of the Administrative Procedures Act (``APA''). 5 U.S.C. Sec. 5 et
seq. Since 1946, the APA and appellate review have been this nation's
insurance policy against arbitrary and capricious agency action. The
APA was passed during a period of expanding power for the federal
government--and was the result of decades of careful deliberation on
how to best provide Constitutional safeguards to govern agency action.
The APA requires transparency in government through notice to
stakeholders of proposed rulemaking, the opportunity for comment and
informal hearings, the promulgation of final rules that deal with
stakeholder concerns and the opportunity for appellate review. These
activities take time, but in our democracy it is essential that all
voices are heard and considered--particularly those that will be
subjected to regulation--before difficult and controversial regulations
are promulgated. That is the objective of the APA as reinforced by
Section 6(b) of the OSH Act. That objective is more fundamental than
any individual OSHA standard.
Fifth, and perhaps most importantly, the question before this
Committee frames the fundamental issue of OSHA priorities: what are the
workplace hazards du jour and should they galvanize OSHA's immediate
attention? Can or should OSHA's priorities be micromanaged from outside
the agency? In this regard, the ergonomics regulatory process is
instructive. It is a classic example of the doctrine of unintended
consequences. The massive amount of time and resources applied to the
ergonomics regulation clearly delayed and prevented the promulgation of
other OSHA standards that would have been responsive to workplace
hazards.
Finally, the question of OSHA regulatory priorities is only part of
a broader set of OSHA issues. What remains are more challenging,
complex, and subtle issues about how to improve workplace safety--and
let us be clear, this is the cause which unifies us all--not the
question of how many standards OSHA has issued, or even whether all
employers comply with these standards. Some of those questions to which
I would invite this Committee's attention are:
How best to get small businesses which rarely if ever have
dedicated safety personnel to focus on safety in their workplaces, and
assist them in navigating the complex minefield that OSHA's regulations
have become.
How should exposure levels be updated that seek control
measures that would quickly over-burden employers and exacerbate the
trend towards exporting jobs.
Given that there will never be an OSHA inspector in every
workplace, what is the best model to achieve employer compliance with
OSHA regulations and good workplace safety practices?
Is OSHA getting its ``bang for its enforcement buck'' by
directing its inspectors to workplaces with the deadliest and most
serious workplace hazards subject to regulations that are already on
the books?
I welcome this opportunity to address the important question of the
pace of OSHA standard setting. I respectfully submit that while the
process appears glacial and cumbersome, it strikes an appropriate
balance among the complex scientific, economic and public policy
considerations. I look forward to your further questions.
Without regard to formal administrative requirements, OSHA may
enact an emergency temporary standard to take immediate effect upon
publication in the Federal Register if it is determined that (a)
employees are exposed to grave danger from exposure to substances or
agents determined to be toxic or physically harmful or from new
hazards, and (b) that such emergency standard is necessary to protect
employees from such danger. See 29 U.S.C. Sec. 655(6)(c )(1). This is
a drastic measure intended only for the most dire and pressing of
circumstances. See, e.g., Public Citizen Health Research Group v.
Auchter, 702 F.2d 1150, 1155 (D.C. Cir. 1983) (noting that the power to
enact emergency standards is ``extraordinary,'' and ``to be used only
in limited situations * * * [in] response to exceptional
circumstances.'') (internal quotations and citations omitted).
______
Chairwoman Woolsey. Thank you, Mr. Fellner.
Mr. Mirer?
STATEMENT OF FRANK MIRER, PROFESSOR OF ENVIRONMENTAL AND
OCCUPATIONAL HEALTH SCIENCES, HUNTER SCHOOL OF URBAN PUBLIC
HEALTH
Mr. Mirer. I am Frank Mirer, now professor of environmental
and occupational health at Hunter College of the City
University of New York.
Previously, I spent 30 years in the trenches of OSHA
standard setting, some with Mr. Fellner on the other side of
the table. I was among the parties convened by the late
Representative Norwood to talk about updating the PELs. And I,
too, have negotiated settlements in post-standards litigation.
My academic project now is analyzing the regulatory process
so that policy makers and Congress can implement standard
setting and change the process based on sound science and
objective data.
My key points today are that, first, new, updated 21st-
century OSHA standards are necessary to protect workers, to
keep from repeating the story that Mr. Peoples has told over
again.
OSHA standard setting has ground to a halt in the current
administration. For chemical exposures, there are many examples
of OSHA standards which allow exposures so high that workers
get sick, and many chemicals that aren't regulated at all.
It is true that many obstacles to new OSHA standards have
been imposed by executive orders, Congress and the courts, but
the fact is OSHA has the scientific backing and the resources
to set many new standards if the staff were allowed to go
forward with the process.
Now, it is clear that OSHA since 2001 has checked out of
the standards business. Slow progress has ground to a halt. The
personal protective equipment standard, which Mr. Foulke
mentioned--the date was announced settling a lawsuit.
More than a year ago, a group of unions petitioned OSHA
seeking an emergency standard to protect health care workers
from pandemic flu and also other respiratory disease. This is
essential to public health protection. It was denied.
A union petition to expand process safety management
standard to workplaces with reactive chemicals that could
explode was denied. A union petition for a standard on diacetyl
is lying fallow.
The administration removed about two dozen items from the
longstanding regulatory agenda, including metal working fluids
that I will talk about later if there is time.
The standards reported by Mr. Foulke--some of them were
takeaways, like the rules for respirators.
And most importantly, one of those changes was a change in
the rules for recording workplace injuries which permits
employers not to report and record injuries that they
previously had to and is directly responsible for at least
some, if not all, of the reduction in injury rates reported by
Mr. Foulke and Mr. Fellner.
In fact, some of the other reductions were the
implementation of the elements of the ergonomic standard that
also caused that reduction.
Now, let me bring you something new. That is all old stuff.
I am now teaching graduate students in industrial hygiene.
In my toxicology class, first we look at scientific data on
health effects. Then we talk about exposure limits. And my
students ask me why California limits occupational exposure to
carbon monoxide--carbon monoxide, one of the oldest chemicals
that we know about--to half of what OSHA allows, why a dry
cleaning chemical, perchloroethylene, is limited to a quarter
of what OSHA allows, or why a certain solvent found in inks
California limits to one-fortieth of what OSHA allows.
One of these is a carcinogen. One causes reproductive
abnormalities. Each of these was on OSHA's list for rulemaking.
Each was removed by the administration.
In my longer testimony, I describe an experience at a
machining plant in Ohio where workers suffered as bad similar
adverse effects, respiratory effects.
In my testimony, we describe how an OSHA inspection in the
middle of this outbreak found no problems because the plant was
in compliance with the OSHA standard.
Our petition for a new standard was denied. Our court suit
to try and get the standard moving again was unsuccessful. And
so workers remain at risk for this.
I think what we need most importantly and most quickly from
this committee is, at least for the meager remnants on OSHA's
regulatory agenda, that the Congress get these things moving
forward and, in particular, get the silica standard moving
forward again. It has been too long. It causes illnesses just
like you have heard about today.
Thank you very much.
[The statement of Mr. Mirer follows:]
Prepared Statement of Franklin E. Mirer, PhD, CIH, Professor,
Environmental and Occupational Health Sciences, Urban Public Health
Program, Hunter College School of Health Sciences, City University of
New York
My name is Frank Mirer. I am Professor of Environmental and
Occupational Health at Hunter College of the City University of New
York. Previously, I served as Director of the Health and Safety
Department of the United Automobile, Aerospace, and Agricultural
Implement Workers of American (UAW), International Union. I thank you
for the opportunity to testify just before Workers Memorial Day, the
time we specially focus on protecting workers. My testimony will focus
on the need for OSHA to promulgate new safety and health standards for
a host of chemicals and other hazards.
I've had more than 30 years experience in the OSHA standards
process. I first testified before OSHA on the standard for lead on May
13, 1977. Since then, the UAW took the lead on successfully pushing
OSHA to set three key standards, and participated in more than a dozen
other processes leading to OSHA rules. I also participated in the UAW's
so far incomplete battle for a standard for metalworking fluids.
My academic project is analyzing the regulatory process, so that
policy makers can both implement standard setting and change the
process based on sound science and objective data.
The key points of my presentation today are:
1. OSHA standards are necessary to protect workers.
2. OSHA standard setting has ground to a halt in the current
Administration.
3. For chemical exposures, there are many examples of OSHA
standards which allow exposures so high that workers to get sick.
4. Many obstacles to new OSHA standards have been imposed by
Executive Orders, the Congress and the Courts.
5. Despite this, OSHA has the scientific backing and resources to
set these new standards, if the staff were allowed to set standards.
My recent review, and long experience, show that OSHA, since 2001,
has checked out of the standards business. Slow progress in earlier
years has ground to a halt and may even be moving stealthily backward.
OSHA has staff and other resources to set standards, but that staff has
not been permitted to operate. Since 2001, this Administration set one
new chemical standard, for carcinogenic chromium, under court order.
That standard actually permits employers to increase exposure levels
under some circumstances. Unions were forced to sue to get
improvements, and that litigation still pends. Regarding employers'
responsibility to pay for required protective equipment like
respirators and wire mesh gloves, Labor Secretary Elaine Chao finally
committed to issuing a final rule in response to a union lawsuit and a
court ordered deadline. That rule was promised by November 2007. The
rulemaking record was completed in 1999.
More than a year ago, a group of unions petitioned OSHA seeking the
emergency standard to protect health care workers, first responders and
others whose jobs might put them at risk during a flu pandemic. The
Administration denied that petition. This places the entire country at
greater risk of retransmission of respiratory disease through the
health care system.
A union petition to expand the Process Safety Management standard
to workplaces with reactive chemicals that could explode or burn has
been ignored. This expansion would be important to the communities near
dangerous facilities exempt from the standard.
A union petition to protect food processing workers against the
deadly vapors of an artificial flavor ingredient, diacetyl, has
likewise been denied. These vapors cause a devastating and potentially
fatal lung disease among workers making microwave popcorn, and may pose
a hazard to workers and consumers down stream.
This Administration removed about two dozen items from a long
standing regulatory agenda, including protection of health care workers
against TB, and several very important chemical exposure limits,
including metalworking fluids. Many of the initiatives left behind,
like some rules for respirators, and recording workplace injuries, were
takaways.
When the UAW sued OSHA for removing metalworking fluids from the
regulatory agenda in 2001, in the face of continuing outbreaks of
severe and disabling respiratory disease, the Administration defended
the case saying resources were needed to set rules for silica and
beryllium. But silica and beryllium are still hanging from then to now
in the pre-rule stage, without even a date when a notice of a proposed
rulemaking or a proposed standard might be issued.
Apologists for this record cite the new obstacles to standards
which have been erected since 1970. I agree, it's time to reduce those
obstacles. But the obstacles don't fully explain the near complete
halt. The first barrier to setting a new standard is getting the Labor
Department to recognize that something needs to be done about a hazard.
That's a political leadership decision. Once there's a decision to move
forward, the task that causes the most delay is gathering business data
to estimate costs. But, OSHA staff has figured out how to get that cost
information. After that, the barriers, and sources of delay, are
getting approval from the Office of Management and Budget to put a
standard on the agenda, complete the small business (SBREFA) review to
release a proposed standard, and to finally promulgate the final
standard. But, OMB is not a free agent. The same President who
appointed the Secretary of Labor and Assistant Secretary of Labor for
OSHA also appointed the heads of OMB and the Small Business
Administration.
For all that, OSHA has the resources to start and eventually bring
to conclusion several meaningful standards each year. It may be a few
years from starting down the pipeline to finishing, but OSHA has proven
it can sustain its burden of proof in court when it tries to protect
workers' health. It's time to hold the Administration accountable for
its record. Not only has little or nothing been finished, but the
pipeline is empty for any future President.
Chemical exposure limits are very important, and I want to address
these at some length.
My students are graduate students in industrial hygiene. In my
toxicology class, first we look at scientific data about health
effects, then we talk about exposure limits. My students ask me why
California limits occupational exposure to carbon monoxide to half what
OSHA allows, or why a dry cleaning chemical (perchloroethylene)
exposure in California is limited to \1/4\ of what OSHA allows, or why
OSHA allows 40 times more exposure to a solvent (ethoxyethanol)
sometimes found in inks. The dry cleaning chemical is a possible
carcinogen, the ink solvent is a reproductive toxin. Health science
supports the stricter limits, and implementation in California proves
their practicality. Each of these substances was on OSHA's list for
rulemaking, and each was removed by the Administration.
My professional organization, the American Industrial Hygiene
Association, polled its members for the leading OSHA issue, the leading
Legislative Issue and the leading professional issue for 2007-8. The
answer in each category was the same: PEL's.
Chronic illness arising from long term chemical exposures at work
accounts for the large majority of known work-related mortality. Few of
these victims are named on Workers Memorial Day, and many are not aware
of the chemical cause of their illness. Reducing those known dangerous
exposures is therefore the best opportunity to protect the lives and
health of American workers. Recognizing the dangers of chemicals at
work also would facilitate controlling those chemicals at home and in
the community environment.
When OSHA was established in 1970, it inherited hundreds chemical
exposure limits, based on the science of the '60s and before. Those
limits were set with substantial involvement of chemical industry
scientists through the American Conference of Governmental Industrial
Hygienists (ACGIH). Those limits were not intended to be as protective
as rules mandated by the OSHA law. Nevertheless, these Threshold Limit
Values were a starting line for limiting chemical exposures.
In the more than three decades of OSHA's existence, the agency has
issued new permissible exposure limits for only 16 agents or groups of
agents. Eight of these were set in the '70s, 3 in the '80's, 4 in the
'90's, and only 1 in the 21st century Most of these rules were
triggered by union or public interest petitions, and defended in court
by these same groups. These rules radically reduced permissible
exposures from the 1968 levels, protected workers, transformed
industries, and largely avoided inflated high costs projected by
industry doomsayers. Those costs which were actually incurred included
wages of workers fabricating and maintaining control equipment, and
cleaning the workplace, so these rules likely created jobs.
My conclusions, based on detailed review of scientific and
regulatory history of the standards set and standards not set, are that
OSHA could have, and should have issued rules for dozens of additional
chemicals. I want to emphasize that OSHA staff could have met the legal
tests for proof, and the procedural requirements of setting standards,
with the resources now provided.
Yes, industry litigants have persuaded judges to increase OSHA's
burden of proof to set a standard. Yes, regulatory legislation has
imposed additional steps, delays and economic tests which stretch out
the process by years. Yes, the Office of Management and Budget has been
empowered by executive orders to slow the standard setting process and
challenge OSHA's expert scientific and engineering conclusions. For all
of that, OSHA has the resources and scientific and engineering support
to start several standards each year, and to bring these rulemakings to
successful conclusion within four years. That is, if the OSHA staff are
permitted to do their work.
The effects of OSHA failing to set new exposure limits can
sometimes be seen in victims we can name. Here's a real story,
documented in the scientific literature and the popular press.
In November 2000, Dave Patterson, a machine operator at a brake
systems plant in Mt. Vernon, Ohio, initially reported breathing
difficulties to his physician. In January 2001, machinist J.J. Johnson
and set-up man John Gooch were hospitalized with hypersensitivity
pneumonitis (HP), a serious disease that can lead to respiratory
failure. Subsequently, additional HP cases developed as well as cases
of bronchitis and occupational asthma (OA).
On February 5, 2001, an OSHA inspector responded to a complaint
from one of the victims. The inspector issued no citation for MWF
exposure because they found management in compliance. OSHA gave
management a clean bill of health for metalworking fluids.
Workers continued to get sick. In June 2001, a National Institute
for Occupational Safety and Health (NIOSH) Health Hazard Evaluation was
called in by management and UAW Local 1939. By November 2001, 107
workers (out of 400) had been placed on restriction and 37 remained on
medical leave. NIOSH identified 14 with occupational asthma, 12 with
hypersensitivity pneumonitis, three with occupational bronchitis.
The UAW worked closely with TRW and NIOSH to protect our members.
Ventilation was improved to bring exposure into compliance with UAW and
NIOSH recommended limits. Eleven months after the first case, new cases
stopped appearing, but some victims were still unable to return to
work. Recent reports from our members and the press show that previous
victims still suffer.
This was one of at least a dozen ``outbreaks'' of illness and
disability from HP in machining plants which are in compliance with
OSHA's exposure limits. These outbreaks were and are epidemics of acute
severe illness on top of the endemic risks of asthma, other respiratory
conditions, and most likely cancer.
Well before OSHA's 2001 inaction in Ohio, the problem was known to
OSHA and to the industry. In 1993, the UAW petitioned OSHA for an
emergency temporary standard for metalworking fluids based on research
largely conducted jointly in the auto industry. OSHA denied that
petition, but did convene an industry-labor-public health standards
advisory committee. The automobile industry responded in 1995 and 1997
by convening symposia on the health effects and control measures for
exposure to metalworking fluids. Both concluded that the effects were
real and controls were feasible. The UAW negotiated exposure limits
lower than OSHA with the auto industry employers, as well as other
control measures. The year 1997 also saw the crafting of an American
National Standards Institute (ANSI) standard on mist control for
machine tools and a workshop was held to identify the cause and
prevention of hypersensitivity pneumonitis. The following year (1998)
NIOSH completed a ``Criteria Document'' on metal working fluids (a
proposal to OSHA for a standard), concurring with the UAW recommended
limit. The OSHA Standards Advisory Committee voted 11-4 that OSHA issue
a comprehensive standard to drastically reduce the mist levels to which
workers are exposed and to enact strict requirements for fluid
management. OSHA responded to the SAC report by issuing voluntary
guidelines, but left the new standard on the regulatory agenda.
So where was OSHA during the TRW outbreak in the year 2000? As
workers were being hospitalized, an OSHA inspector was giving a ``clean
bill of health'' to the plant, based on a 30+ year old standard that
would allow a typical worker to inhale 1 pint of oil over the course of
a working lifetime. And then, in October, 2001, OSHA deleted
Metalworking Fluids (MWF) from the regulatory agenda, withdrawing the
advanced notice of proposed rulemaking. OSHA acknowledged the
respiratory illness from MWF exposure at prevailing and permitted
exposure levels, but stated that asthma and hypersensitivity
pneumonitis were ``rarely fatal.'' The UAW petitioned the 3rd Circuit
Court of Appeals to compel OSHA to restart the rulemaking. On March 24,
2004, that Court deferred to OSHA's decision NOT to act or start
setting a standard.
Since 1970, scientific evidence and practical experience has
identified workplace chemical causes of many instances of illness,
disability and death among workers. Technical methods for estimating
quantitative risks at various exposure levels--methods demanded by
industry--demonstrate very large risks at very low exposures. Multiple
studies have shown that widely distributed chemicals, like silica, are
now known to cause cancer in humans. Lung cancer has been observed
among workers exposed to silica at levels permitted by the current OSHA
standard and prevailing in American workplaces and at American
construction sites.
Organic dusts, like flour, are known to cause occupational asthma
at exposure levels prevailing in American workplaces. A predictable
fraction of asthma victims will die of that illness.
The most visible recent demonstration of the impact of OSHA's
failure to move forward on new exposure standards was at the World
Trade Center recovery site. The scientific literature and popular press
recount the ongoing toll of disability and even death among recovery
workers. Those accounts fail to connect the dots, that OSHA, and EPA,
correctly reported that none of the measured exposures at the site
violated outdated OSHA standards. OSHA and EPA may have measured the
wrong chemicals at the wrong time, and have not taken mixtures into
account, or special circumstances. Nonetheless, following OSHA
standards allowed workers in large numbers to get sick, nobody disputes
that anymore.
The stories of Popcorn Workers Lung, and respiratory illness from
metalworking fluids, include the same plot elements: devastating
illness from exposure levels permitted by OSHA or not limited at all,
no action or ineffective action from OSHA.
The standards process, when allowed to proceed according to law,
drastically reduces permissible and actual exposures. The OSHA asbestos
permissible exposure limit, revised several times, was cut to 1% of
what it was in 1970, and even this limit leaves behind a substantial
cancer risk. We still pay for the legacy of those old, high exposures.
In the accompanying table, we see that OSHA's new rules have reduced
allowable exposure by up to 1000-fold.
Unfortunately, the chemical hazard standards process nearly ground
to a halt in the last decade. The most recent rule protecting against
cancer-causing chrome compounds was issued last year only after a court
order to regulate, and a court decreed time limit to get it done. The
mandated reduction is not sufficient, but it's something. The standard
promulgated before chrome compounds, the methylene chloride standard,
began with a UAW petition, and ended by settling a UAW lawsuit.
Allowable exposure was reduced to 5% of what was previously allowed.
Without a doubt, these delays in the standard setting process have
been aggravated by congressionally imposed special reviews by ``small''
business employers [but not employees of small business], OMB imposed
regulatory reviews, and increasing demands for detailed economic
analyses. These have injected procedural Botox (botulinum toxin which
paralyzes all muscles) into an agency already paralyzed by analysis.
But the delays are also attributable to the failure of the OSHA
political leadership and the Administration to support prompt action in
promulgating additional standards.
The legislative fix to this impasse has at least three parts.
First, Congress has to hold the Administration's feet to the fire
on the meager current regulatory calendar. In particular, OSHA must be
directed to issue a proposed silica standard, hold hearings, and issue
a final standard, each by a date certain.
Second, courts have severely limited the circumstances where OSHA
can be compelled to move forward in standard setting. Meanwhile,
management can sue OSHA whenever OSHA does make a new rule. OSHA should
be required to meet a high threshold to defend refusing a petition for
a new standard. The playing field should be leveled.
Third, Congress should authorize OSHA to adopt the current
Threshold Limit Values (TLV) list on a one time only basis. TLVs are
developed by ACGIH, a group of occupational health practitioners
charged with investigating, recommending, and annually reviewing
exposure limits for chemical substances. Generally, the TLV's do not
limit exposure as much as permissible exposure limits set according to
the OSHA law. Often the values allow a significant risk of material
impairment to health, and don't push as far as would be economically
feasible for the industry. In part, these shortcomings in protection
arise from the nature of the ACGIH and its TLV committee, a set of
volunteer organizations, with limited resources. ACGIH is not able to
hold months of hearings, or hire specialized experts as OSHA might. But
given OSHA's lack of action on setting new standards, the TLV's are a
reasonable starting point in getting protection and future rulemaking.
Congress should direct this action. Where there is substantial
objection to the limit for a particular agent, and a showing of
material problems with compliance with that limit, OSHA should be
compelled to place that agent in line for complete 6(b) rulemaking on a
clear timetable.
In conclusion:
1. OSHA standards are necessary to protect workers.
2. OSHA standard setting has ground to a halt in the current
Administration.
3. For chemical exposures, there are many examples of OSHA
standards which allow workers to get sick.
4. Many obstacles to new OSHA standards have been imposed by
Executive Orders, the Congress and the Courts.
5. OSHA has the scientific backing and resources to set these new
standards, if the staff were allowed to start the process.
______
Chairwoman Woolsey. Thank you.
I think you heard the bells ringing. We have five votes,
but we do have 5 minutes.
I am going to be here for the duration, so if there is
anybody on the subcommittee that can't come back that would
like to ask a question and use that 5 minutes, I am willing to
yield.
Mr. Payne from New Jersey?
Mr. Payne. Thank you very much.
Let me just quickly ask a question to perhaps Mr. Foulke.
I have noticed a disturbing trend toward replacing
standards with this voluntary alliance, mostly among industry
members, instead of using OSHA standards. For example, instead
of modifying the process safety management standard to include
reactive hazards as the Chemical Safety Board recommended in
2002, OSHA established an alliance which was concluded last
month.
The reactives issue is serious, having killed well over 100
workers in preventable explosions over the last couple of
decades. In 2004, the Chemical Safety Board declared OSHA's
response to be unacceptable.
So, Mr. Foulke, can you tell me what the reactives alliance
accomplished aside from training a few dozen people and
staffing booths at numerous conferences? What was the actual
accomplishment of this alliance?
Mr. Foulke. The point of our alliance program is to tell
industries and other organizations, such as labor
organizations--to help them identify the safety and health
hazards that directly impact on their particular industry and
their particular workers.
And if you look at the alliances that we have worked with,
a lot of them have been very successful in helping to produce
guidance documents, best practices.
And I am not exactly sure with respect to this particular
alliance--I know that the process safety management standard
covered many of the recommendations that dealt with the
reactive chemicals.
But what we were trying to do with--what we try to do with
each one of our alliances is to outreach and to determine what
are the most critical safety and health hazards that are facing
that particular industry or that particular union's membership
and then to address those by providing the best practices and
guidelines and training----
Mr. Payne. All right. Let me just--because time is running,
I am going got cut you off. But do you have any evidence that
you think that it is more effective with the alliance than it
would have been under OSHA? I mean, do you accomplish more
safety, workers are in better shape?
Maybe a yes or no.
Mr. Foulke. My answer would be yes. I think our alliance
programs----
Mr. Payne. Okay. All right.
Mr. Foulke [continuing]. Are very effective.
Mr. Payne. Then let me ask you another question, then. If
that is yes, do you mean by less regulations no real--and
actually, you concluded this. I mean, this particular alliance
is over, so therefore I assume, then, that the problem is
solved.
Mr. Foulke. Well, what we did was we--in the particular
alliances, when they are instituted, we may have developed the
appropriate best practices--whatever we were focused in on, we
would try to address those particular hazards.
The nice thing about the alliance program is that OSHA is
able to outreach to so many more employers and thus cover so
many more employees by quickly developing and working together
to develop these guidance documents, these best practices,
these training modules, all these different things that kind
of--and that is why I said I think we have been very
successful.
And I think the fact that the numbers I suggested on injury
and illness rates going down show that the four-prong approach
that OSHA utilizes is being effective.
Mr. Payne. Well, actually, I certainly disagree, and I
think the word that you mentioned is ``nice.'' I think that
what OSHA is trying to be is nice. But when people are losing
their lives in different work, you don't have to be nice. You
have to have protections for the worker.
And I am not going to have time to ask, you know, Mr.
Fellner a question, but I did take note that when he was saying
that OSHA is moving with all deliberate speed, it reminded me
of the 1954 Supreme Court decision that said that separate but
equal is unconstitutional, that we should move with deliberate
speed to integrate public schools in the United States. That
was 50 years ago, and today public schools are more segregated
than they were in 1954.
So when I hear ``deliberate speed,'' I am glad that you
reminded me of what I think is happening with OSHA.
I have to yield back the balance of my time.
Chairwoman Woolsey. Thank you.
Now we have to go vote. And as soon as the fifth vote is
finished, we will be back up here. It will be at least 20
minutes.
[Recess.]
Chairwoman Woolsey. The hearing will come back to order.
Thank you for waiting for us. This is what our day is like,
so, you know, back and forth, back and forth.
Mr. Bishop from New York will be the next to ask questions.
Mr. Bishop. Thank you very much, Madam Chair, and thank you
for holding this hearing. Thank you for indulging my schedule.
And thank you to the witnesses for your testimony.
Mr. Fellner, let me start with you. And I don't wish to be
impolite, but I have to say I found your characterization of
workplace hazards as the ``hazards du jour'' to be offensive.
And I don't mean this to be a flippant question, but would
you be so cavalier in your description if you yourself were
suffering from a workplace injury or a loved one were suffering
from a workplace injury or hazard that had not been attended to
over, let's say, a 14-year or 15-year period?
Mr. Fellner. Congressman Bishop, the reference to ``hazards
du jour'' is directly responsive to the question as framed by
this committee; namely, is standard setting responsive to
workplace hazards?
I submit to you with all respect, Congressman Bishop, that
it cannot be responsive to workplace hazards in an orderly
fashion when the issues that are gaining center stage are those
that are in the press for 15 minutes or 30 minutes or the
``hazards du jour.''
Mr. Bishop. All right.
Mr. Fellner. There must be an orderly process.
Mr. Bishop. If I may, can I infer from your answer that you
would not place in that characterization ``hazards du jour''
the types of hazards that we have heard described here today,
such as the hazard of working in confined spaces, one that I
understand from Mr. Schneider's testimony has now not been
addressed fully for 14 years? Would that have a hazard of
somewhat greater duration than 1 day?
Mr. Fellner. The answer specifically with respect to the
standard that you have raised, the confined space standard--
there is a confined space regulation. It is enforced by OSHA.
It is enforced effectively by OSHA. It is not a hazard to which
OSHA has not responded. It has responded.
There may be those----
Mr. Bishop. If I may interrupt--I only have 5 minutes, so
if I may interrupt.
Mr. Fellner. I understand.
There may be those who suggest that it hasn't been
responded to adequately.
Mr. Bishop. I would like to ask Mr. Schneider to address
your characterization of how OSHA has responded to that hazard.
Mr. Schneider. Well, unfortunately, that standard excludes
the construction industry. And the construction industry has
been working on a standard for confined spaces and has promised
us one, but it hasn't been published yet. And 14 years later,
construction workers are not afforded the same coverage, the
same safety, as people that are not in construction.
Mr. Bishop. I have one more question for you, Mr. Fellner.
In your testimony, you suggest that good public policy demands
an appropriate balance between a standard-setting process that
keeps up with workplace hazards and one that does not
jeopardize the existence of those workplaces, admittedly a
difficult balance to arrive at and maintain.
Where would you place on that continuum the problem with
diacetyl? Am I pronouncing it correctly? Where would you place
that? Are we maintaining the appropriate balance? Are we not
acting quickly enough? Are we acting too precipitously?
Mr. Fellner. To the best of my knowledge, Congressman
Bishop, there is no dose response curve with respect to
diacetyl.
In the absence of a dose response curve on that particular
substance, while there is some evidence of medical effects with
respect to exposures to diacetyl at high levels, as the Supreme
Court indicated in the benzene decision in 1980, that is
insufficient to promulgate a standard at very, very low levels.
So the issues are complex. And even, I dare say, the State
of California is having difficulties with those issues.
Mr. Bishop. Let me go to Mr. Foulke.
Dr. Mirer, in his testimony, just asserts that OSHA
standard setting has ground to a halt in the current
administration. That is a characterization that is at odds with
at least your written testimony. Would you comment, please, on
Dr. Mirer's characterization?
Mr. Foulke. Yes, Congressman Bishop. I would say that that
characterization is incorrect. OSHA has been very involved in
the standard making process. And just in 2006, 2007, we put out
the hexavalent chromium standard. We have done an updated rule
on fire protection in the shipyards.
We have done assigned protection factors for the
respiratory protection, which allows employers to know what is
the proper respiratory cartridges that they should use in their
respirators for the particular--and we have also done
electrical installation requirements, a final rule on that.
So we have been active just--and that has just been in 2006
and beginning of 2007. So to say that we are just--you know,
and I have a list of other things that we have done, final
activities that we have done, since 2001. So to say that the
Bush administration has been inactive in moving on standards is
incorrect.
Also, part of the whole standard-setting process, because
of the different levels--and you have heard different people
discuss the different things that have to be utilized as part
of the standard-making process. Those things are ongoing, so we
are working on putting out--we put out requests for information
on emergency preparedness.
I am trying to remember. We have done advance notice of
proposed rulemaking where we asked the public for information.
We conduct hearings. We put out notices of proposed rulemaking.
So all these activities are ongoing. To say that we
haven't--you can look at all these--there is a series of things
that we have been doing since 2001. And so I would say there is
no way you can classify that we have been at a standstill.
Mr. Bishop. Thank you.
May I ask Dr. Mirer to, sort of, substantiate why you have
made the assertion that you have?
Mr. Mirer. Okay. The chrome standard was promulgated
pursuant to a court order that required them to produce it by a
date certain. The assigned protection factors which Mr. Foulke
talked about is a takeaway. It allows employers to use less
protective respirators than they previously were required to
do.
The biggest takeaway was the change in record-keeping
requirements which is responsible for at least part or maybe
the majority of the reduction in injury rate that they are
talking about as proof of their success.
Most of the other things they have pointed to are nickel-
and-dime, modest changes. I think there is actually three or
four rulemakings on record-keeping that came in this
administration, each one of which was a takeaway.
Mr. Bishop. Thank you very much.
My time is about to expire. Madam Chair, thank you.
Chairwoman Woolsey. Thank you, Mr. Bishop.
Ranking Member Wilson?
I want you folks to know that we have gone two on this side
because you weren't in your seats quite yet, so we are going to
go Mr. Wilson and then to Mr. Kline. And you each get 6 minutes
because, guess what, we forgot to turn on the clock.
Mr. Wilson. Well, thank you, Madam Chairman, for your
fairness.
And indeed, Mr. Peoples, I want to thank you for being
here. I want to thank you for your courage. I understand the
seriousness of your condition. I was on the board of the
American Lung Association in South Carolina for 20 years,
working to reduce the potential for respiratory injuries. And
so again, I appreciate so much your being here today.
Additionally, I am really grateful to be here with
Secretary Ed Foulke. Secretary Foulke and I worked together
with the late Congressman, Governor Carroll Campbell of South
Carolina. We know Secretary Foulke is one of the most prominent
attorneys in South Carolina, one of the leading civic workers.
In fact, Democrats and Republicans are very proud of the
success of Secretary Foulke.
And so, I appreciate your being here today.
And in your testimony, Mr. Secretary, you indicated that
the level of occupational injuries and illnesses was
significantly reduced. In fact, the chart would indicate the
lowest being recorded ever.
But at the same time, there has been an indication that
OSHA is broken. Can you respond? Because it appears from the
actual reports of injuries and illnesses that, indeed, success
is abundant.
Mr. Foulke. Yes, Congressman Wilson. And thank you for
those nice comments about me.
No, as I indicated in my testimony, injury and illness
rates since 2002 had fallen more than 13 percent. And more
importantly, the overall fatality rate had dropped during that
same time period by 7 percent, and 18 percent fatality rate
reduction in Hispanics.
And I would say that it is because of the balanced approach
that we have taken. And the numbers we indicated showed that
the amount of enforcement that we have been taking--the fact
that one-quarter of the criminal referrals have occurred since
2001 clearly indicates that we have a very strong enforcement.
But it is also important--there is a lot of employers out
there that we are trying to outreach to through our compliance
assistance programs, our alliances, our partnerships, our
voluntary protection program.
All these programs were outreached into a greater and
greater number of employers, and thus improving their health,
and they are helping them to have a comprehensive safety and
health program, at the same time allowing them to protect more
and more workers throughout the country.
So the statistics show that the balanced approach that we
have taken has been extremely effective.
Mr. Wilson. Well, I am very grateful for your success and
that of OSHA.
Mr. Fellner, we have heard testimony today stating concern
about the regulatory process in which OSHA must formulate
regulations. Can you explain how the process evolved to where
it is currently? Was it due to perceived failing by regulators
to take into account scientific data?
Mr. Fellner. Congressman Wilson, that is precisely correct.
The standard-setting process, as I indicated in my testimony,
is extraordinarily complex, first because the statute makes it
so.
The statute talks about significant risk of material
impairment. The seminal decision that dealt with significant
risk of material impairment was the Benzene decision that
issued in 1980.
And with the committee's permission, there is a salient
paragraph which I think will inform the committee's
deliberation that I would like to share with you.
In the Benzene decision, it says, ``By empowering the
Secretary to promulgate standards that are reasonably necessary
or appropriate to provide safe or healthful employment and
places of employment, the act implies that before promulgating
any standard the Secretary must make a finding that workplaces
in question are not safe. But safe is not the equivalent of
risk-free. There are many activities that we engage in every
day, such as driving a car or even breathing city air, that
entail some risk of accident or material health impairment.
Nevertheless, few people would consider these activities
unsafe. Similarly, a workplace can hardly be considered unsafe
unless it threatens the workers with a significant risk of
harm.''
That decision was not written by Justice Rehnquist or
Justice Scalia; it was written by Justice Stevens. And that is
the guiding lodestar by which OSHA must promulgate its safety
and health standards, not in a risk-free society but rather
where there is significant risks.
Since that decision, there have been multiple Court of
Appeals decisions that have further made the process informed
and complicated, particularly as our scientific environment
becomes complicated.
And all of that is under the umbrella of the Administrative
Procedures Act, which requires notice and comment to all. And
it requires it to Mr. Peoples, and it requires it also to the
industries that are regulated.
Chairwoman Woolsey. Thank you.
Mr. Kline?
Mr. Kline. Thank you, Madam Chair.
And thank you to the witnesses for being here today. It is
always fascinating to sit up here and listen to ourselves talk
and realize how often we come down on different sides of an
issue. I really would like to believe we are all trying to look
for a way to be successful in reducing injury, illness and
accident in the workplace. But, for example, the Chair opened
with comments about the ergonomics regulations, and I would say
I am extremely grateful that we were able to block those
egregious ergonomics regulations. We just look at things
differently.
I am very much impressed, Secretary Foulke, by this chart
that shows ever-decreasing injury, illness rates and lost work
days per employee. And that seems to me what we should be
looking for, is we should be looking at results.
And so, one of the things that has been discussed are the
so-called voluntary compliance issues, some of the things that
OSHA has been using. I understood that to mean we are looking
for ways to work with businesses, with employers, to make their
workplace safer without having them be fearful of being slapped
down, if you will, when OSHA comes.
Can you talk about that a little bit and how that is
working?
Mr. Foulke. Yes. Well, I first would correct the
terminology, because that ``voluntary compliance'' has been
bandied about by some people as indicating that OSHA somehow
allows employers to voluntarily comply with safety and health
standards. And that is flat-out wrong; it is untrue.
All the standards that are written are mandatory standards.
All employers are required to abide by those standards. And
OSHA enforces those standards, as I indicated earlier about the
number of the 38,000-plus inspections that we have done. We are
enforcing them.
So what you are talking about, though, is compliance
assistance. And that is where we have our different groups
involving our outreach to employers and employees. This
compliance assistance is not just solely for one group of the
industry.
In fact, we outreach them to our different programs. Part
of the ones, as I talked earlier, was to Mr. Bishop regarding
the alliance program, where we bring in--normally, it is
involving associations, some type of groups, sometimes labor
unions, where we try to outreach and focus and help those
people identify their significant problems and safety and
health issues and work with them to come up with compliance
assistance tools that can help them.
We also have what we call our consultation program, which
is also part of our compliance assistance. The consultation is
meant for small-and medium-size employers, where OSHA pays the
states to have safety and health people come in and help small
businesses develop comprehensive safety and health programs for
their facilities, and thus helps them have a much more safe and
healthy workplace for their employees.
Mr. Kline. So this is not an OSHA inspection, per se. This
is some assistance from your organization working with states
to help businesses establish a safe working program. Is that
correct?
Mr. Foulke. That is correct. Under our consultation program
and some of our compliance assistance programs like the
voluntary protection program, we are trying to help the
companies have comprehensive safety and health programs so that
their worksites will be safer and healthier for their workers.
Mr. Kline. Okay. Thank you very much.
I would like to move--I see my light is still green. That
happens so rarely. I am excited here. Thank you, Madam Chair.
Personal protective equipment--we have had some testimony
about that today. And there seems to be some confusion or
difficulty.
Can you tell us, Mr. Secretary, what actions the Department
has taken with respect to PPE and historically what challenges
you face in trying to regulate in this area? We had some
testimony from Mr. Fellner and others, but can you kind of
clear that up for us?
Mr. Foulke. Yes, Congressman. We are in the process of
finalizing a rule for personal protective equipment. That will
be finalized in November of this year.
Now, it is interesting to note that 95 percent of the--
based on our analysis, we determined that currently 95 percent
of the employers in the United States pay for their personal
protective equipment.
So we have been moving on this standard as expeditiously as
we can. We have held hearings on it the initial proposal. When
we finished the proposal, we determined that the record needed
to be opened up to determine information on tools of the trade.
So we have been working on those things on the payment for PPE
rule.
Now, we have already had in place, obviously, our personal
protective equipment standards requiring employers to determine
what hazards actually exist at their workplace and what
personal protective equipment would be utilized to address that
particular hazard.
So those rules have been in place. The question has been,
who pays for it? And as I indicated, currently our information
shows that 95 percent of the employers currently pay for PPE.
We are finalizing the standard, and that standard will be out
in November of this year.
Mr. Kline. All right. Thank you, Mr. Secretary.
Thank you, Madam Chair.
Chairwoman Woolsey. Well, I yield myself 5 minutes.
I want to remind everybody who is here today that the title
of the hearing is ``Have OSHA Standards Kept Up With Workplace
Hazards?'', not ``Has Compliance Worked for the Old Standards
That Aren't Even Close to What We Need in This World of Ours?''
And then I would like to congratulate the subcommittee,
because we have had some success. We had success before we even
walked in here today. Today, OSHA put out a news release that
announced that the National Emphasis Program will address
popcorn lung. Well, guess what? We have been waiting how many
years to get this even started, so we are glad that we have
made an impact so far.
But, Mr. Foulke, I have--oh, and I would like to, by the
way, with unanimous consent, enter into the record this press
release from OSHA. Okay.
[The information follows:]
U.S. Department of Labor's OSHA Announces Focus on Health Hazards of
Microwave Popcorn Butter Flavorings Containing Diacetyl
Washington.--The U.S. Department of Labor's Occupational Safety and
Health Administration (OSHA) today announced that it is initiating a
National Emphasis Program (NEP) to address the hazards and control
measures associated with working in the microwave popcorn industry
where butter flavorings containing diacetyl are used.
``We recognize that there are potential occupational health hazards
associated with butter flavorings containing diacetyl,'' said Assistant
Secretary of Labor for Occupational Safety and Health Edwin G. Foulke
Jr. ``Under this program, OSHA will target inspection resources to
those workplaces where we anticipate the highest employee exposures to
these hazards.''
The NEP applies to all workplaces where butter flavored microwave
popcorn is being manufactured.
In January, 2006, the National Institute for Occupational Safety
and Health (NIOSH) released an investigative report on a microwave
popcorn production facility. Several employees from this facility were
diagnosed with bronchiolitis obliterans--a severe obstructive lung
disease. Following a number of lung function tests and air sampling,
NIOSH determined that inhalation exposure to butter flavoring chemicals
is a risk for occupational lung disease. OSHA's National Emphasis
Program will provide direction on inspection targeting and procedures,
methods of controlling the hazard and compliance assistance.
The 24 states and two U.S. territories that operate their own OSHA
programs are encouraged, but not required, to adopt a similar emphasis
program.
Under the Occupational Safety and Health Act of 1970, employers are
responsible for providing safe and healthful workplaces for their
employees. OSHA's role is to assure the safety and health of America's
working men and women by setting and enforcing standards; providing
training, outreach and education; establishing partnerships; and
encouraging continual process improvement in workplace safety and
health. For more information, visit www.osha.gov.
______
Chairwoman Woolsey. So, Mr. Foulke, I have some questions
for you, because this press release that appears in this
announcement only addresses popcorn facilities. Well, we know
that cases of bronchiolitis obliterans have been identified in
food processing and in flavor plants that produce flavoring for
a variety of food products, including candies and many other
foods. Diacetyl is used in popcorn, it is used in candies, it
is used in dog food, it is used in cheeses, et cetera, et
cetera.
And this press release also--I will note that NIOSH issued
an investigative report in January of 2006 implying that OSHA
is acting somewhat rapidly. Well, actually, the first NIOSH
report of problems in popcorn facilities was published on April
26th, 2002, exactly 5 years ago.
So, Mr. Foulke, here is my question: With this release only
applying to microwave popcorn plants, and given that diacetyl
is in widespread use in the flavoring and food processing
industry, and given that there is no safe level of exposure,
wouldn't it make sense to expand this program to anywhere that
food flavoring chemicals are in use?
In fact, isn't it true--this is going to be a two-part
question--that none of the many cases found in California
occurred in microwave popcorn plants?
Mr. Foulke. Yes, Madam Chair, thank you.
And I would note, first of all, actually, NIOSH had an
interim report back in 2001 on this particular issue. And OSHA,
at that particular time, took immediate action to alert all
administrators of this report and to identify, as part of our
inspection process, those facilities where these particular
symptoms or illnesses may be occurring.
We also developed and disseminated a brochure out of our
Region 7 operations, which is where most of the popcorn
manufacturers are located. And we also have been working on
developing guidance.
So I would first point out the fact that OSHA, as soon as
they knew there was a problem back in 2001, we got on it and
started working on it.
Now, to answer your question with respect to diacetyl, I
guess the question is, is diacetyl a hazard? And unfortunately,
that is not an easy yes or no answer.
We believe that there is strong evidence that butter
flavoring and certain other food flavorings present respiratory
hazards to the exposed employees. But as you probably are
aware, because it is obvious you have done a lot of research on
this, flavorings are complex mixtures made up of a lot of a
numerous variety of substances.
So, at this point in time, the question is--I don't believe
that there has been--been found between any specific substance
in flavoring--specific lung disease. Diacetyl is a substance of
suspicion. Its role and the role of other flavoring compounds--
--
Chairwoman Woolsey. All right. I get your gist.
Mr. Peoples, would you like to respond to that?
Mr. Peoples. Being a blue-collar worker, as I was before my
illness, I do speak, I believe, for the other blue-collar
workers who, when we go to work, we truly believe that OSHA and
NIOSH and the other government institutes have our best
interests for our safety to work and support our families in
mind.
For this to be brought up to them and for nothing to be
done for--we are going on to 6 years now since I have been sick
myself--that I have a hard time understanding why.
I do not understand the process. I have no knowledge of
that whatsoever. But I still cannot figure out why it is taking
so long for the proper testing, the proper regulations to be
passed that companies have to abide by this. The allegiance,
the voluntary allegiance, does not seem to be adequate enough.
I would like to refer the committee to the paper ``Lung
Disease Caused by Corporate Negligence,'' published in the
International Journal of Occupational Health, which we will
supply to the committee and should be part of this record. That
shows that my disease was caused by an industry-wide cover-up.
Chairwoman Woolsey. Without objection.
[The information follows:]
Mr. Peoples. I am sorry?
Chairwoman Woolsey. Without objection to your entering it
into the record.
Mr. Peoples. Thank you.
I hope that OSHA will not be allied with the industries
like the flavoring industries.
Chairwoman Woolsey. Thank you very much.
Mr. Price?
Mr. Price. Thank you, Madam Chair. I, too, thank you for
holding this hearing, and I apologize for not being here
earlier.
I want to thank all of the panelists for coming and taking
time and being tolerant of our schedule.
I want to address a number of issues. First, the issue of
butter flavoring.
And last year, the Journal of Occupational and
Environmental Medicine published a study entitled, ``Evaluation
of Flavorings-Related Lung Disease Risk at Six Microwave
Popcorn Plants.'' And I would like to submit that for inclusion
in the record, Madam Chair.
Chairwoman Woolsey. Without objection.
[The information follows:]
Mr. Price. Thank you.
The study is interesting. In one point, it says that, ``At
this time insufficient data exists on which to base workplace
exposure standards or recommended exposure limits for butter
flavoring.'' However, the study concludes that these workers
are at risk for flavoring-related disease and recommends
respiratory protection and engineering controls to protect
workers.
And I wonder, Mr. Foulke, if you might explain the special
emphasis program with respect to the issue that was announced
this morning, as the chair noted.
Mr. Foulke. Yes. The National Emphasis Program that we will
be implementing next month is an inspection program. It is part
of our enforcement operation. We have a number of National
Emphasis Programs.
We also have Local Emphasis Programs on different subjects,
on different topics. But this particular one is a National
Emphasis Program involving butter flavors containing diacetyl
in the popcorn industry--is our focus initially.
And what we are going to be doing is conducting inspections
of all the popcorn manufacturing facilities, butter popcorn
manufacturing facilities, under federal jurisdiction, because
we have state plan states that are not under our jurisdiction
like California. So we are going to be conducting inspections
of all those facilities by the end of 2007.
And part of that inspection process will include reviewing
the material safety data sheets to make sure that they have the
proper information on there about that and other chemicals, to
make sure that the hazard warnings are known to all those
employees.
Mr. Price. So there is a process in place, and you are
moving through that.
Mr. Foulke. Yes. I could say what we are going to be doing
is we are going to be inspecting all the facilities before the
end of the year.
Mr. Price. Great. I appreciate that.
I want to change gears just a little bit. In my real life,
I was an orthopedic surgeon, so I have some familiarity with
ergonomic situations and the challenges there.
Mr. Fellner, we heard some testimony earlier that when the
Department of Labor changed the recording of ergonomic injuries
that this was the reason for the decrease in injury and illness
rates. And I wondered if you might comment on that assertion.
Mr. Fellner. Thank you, Congressman Price.
Indeed, that assertion is mistaken--assertion made by my
friend Frank Mirer.
In point of fact, there was a column that was going to be
added to the OSHA 300, the recordable injury form that OSHA
requires employers to fill out. In its proposed standard, OSHA
had suggested that there should be a separate column for
musculoskeletal disorders.
In response to comments by me, amongst others, OSHA
concluded that they could not define musculoskeletal disorders.
And consequently, they decided not to issue that as a final
rule.
However, what is very important to understand is that in so
deciding, OSHA said however you employers used to define
musculoskeletal disorders, continue to define it the same way,
and continue to record it as you were recording it in the past.
Any suggestion that there was a diminution of recording
musculoskeletal disorders as a result of that instruction by
OSHA to the regulated community is simply false.
Mr. Mirer. Do I get to----
Mr. Price. I appreciate that.
Please, Dr. Mirer, yes.
Mr. Mirer. Under the old rules, if an employee was
treatment-free for 30 days, the recurrence of a musculoskeletal
disorder or any other injury was a new occurrence and was
recordable. Now, the employer does not have to record that, and
most of these are recurrent illnesses.
If medical treatment is denied to the employee, it used to
be recordable. It is not recordable now. And those are the two
main ways in which they have done it.
The other point being, we talked about chemical exposures
and the problems arising from those. If you retire and then die
of asbestosis or silicosis or popcorn lung, you are not
recordable, because the system particularly excludes these
latent diseases that go on for a long time.
And there is quite a lot of scientific literature about the
under-recording of occupational injuries and illnesses, at
least half a dozen----
Mr. Price. I am running out of time, and I appreciate that,
and I thank you.
And I think it brings up the point, however, that I think
there are differences between exposures to elements and
musculoskeletal inherent challenges in any workplace.
And I don't want to pick out certain companies, but UPS--in
my area, I used to evaluate employees before they went on the
job there. They go out of their way to make certain that their
employees are doing things correctly and making certain that
they are--because an employee who goes down is not productive
for them, obviously.
So I think that there are differences between exposure to
elements, which Mr. Peoples had, obviously, and exposure to
inherent risk of certain jobs.
But I would commend the chairman for drawing attention once
again to the title of this hearing, ``Have OSHA Standards Kept
Up With Workplace Hazards?''
And I would just make a comment, Madam Chair, if I may,
that I am not certain that the government is nimble enough to
keep up with the changing workplace and would suggest that we
commend those institutions and those companies and workplaces
that do, in fact, make certain that their employees are as safe
as possible.
And I yield back the balance of my time.
Chairwoman Woolsey. Thank you, Mr. Price.
Mr. Hare from Illinois?
Mr. Hare. Thank you, Madam Chairman.
With all due respect, Mr. Secretary and Mr. Fellner, I
don't share your rosy opinion of the job that OSHA has been
doing. In 2005, we lost 5,071 people to workplace deaths. That
same year, we had 50,000 to 60,000 workers die from
occupational diseases.
And despite these alarming statistics, I find two pages of
OSHA standards that have either been killed, delayed or thrown
out by this administration--two pages of them. It is pretty
hard to enforce a standard, from my perspective, when you throw
them out.
So I don't share with you, Mr. Secretary, your boss's
commitment to protecting our workers when you start throwing
standards down the drain.
The other thing is I was interested in Mr. Fellner's
comments when he talked about speed, and he mentioned it, and
workplace du jour.
Let me say this. We had a hearing here earlier on the B.P.
explosion where 15 people died and over 100 people were
injured. It was 10 years, as I understand the testimony at that
hearing, from the time OSHA had had an inspection there.
I don't think B.P. will be cited or OSHA will get a
speeding violation for not going into that factory, into that
plant, and looking at the problems there for a 10-year-period
of time, Mr. Fellner.
With regard to Mr. Peoples, I wonder if his illness happens
to be one of those illness du jours that you were referring to
in your testimony.
The bottom line, it seems to me, here is, are we going to
work and stand up for average working people?
You know, Mr. Peoples is sitting here today. It is fine to
say that we feel very bad for him. The problem is that we take
standards that we want to have on the books and protect people
and we do little or nothing with them.
The chair and myself and a couple of other members of this
committee have sent a letter to OSHA asking them to look into
the Cintas Corporation, a company where a worker was killed.
The Cintas people responded to us by basically telling us that
the worker, in essence, was too stupid to know the job, and
instead of putting the guards on, he was sucked into a dryer at
300 degrees for 30 minutes and killed. I think that is
insulting to him and to his family.
It is my sincere hope, Mr. Secretary, that OSHA will take a
look at this and will do whatever it can to make sure that
Cintas starts complying. This is not what I would call a
worker-friendly corporation.
I guess what I would like to know, from your perspective--
you say that since you have become Secretary you have
discovered it is difficult, and you thought it would be more
difficult than the standards, et cetera, but it appears like
there has been a lack of will from OSHA.
There has only been one, as I understand it, one major
standard has been issued. So with all of these that have been
cast aside, I am wondering, with only one standard that has
been issued by OSHA, what has OSHA been doing?
Mr. Foulke. Well, Congressman, I would say that we have
been doing a great deal.
And as I indicated in my testimony and by my comments on
some other questions, you know, we have done a number of final
rules on--you know, you are trying to characterize what is a
major rule or what is a non-major rule. I won't get into that
debate, but clearly the hexavalent chromium was a major rule.
The fire protection of shipyards--updated rule. Assigned
protection factor, electrical installation requirements--all
these are rules that we have been working on that are going to
help employees with their safety and health.
So we are moving on things. We have done a whole series of
things since 2001.
Mr. Hare. Mr. Secretary, isn't it very hard to cite a
company when OSHA doesn't even go in and inspect to see if the
workplace is safe?
I mean, there have been some companies that I understand
that OSHA hasn't been into for 10 years to 15 years, so there
has never been an inspection. I find it very difficult to
understand how OSHA can protect the workplace and the workers
in that workplace when there is no inspections.
And the second thing--and I appreciate the chart, you know,
showing how things are doing just swell. But isn't it true that
the Journal of Occupational and Environmental Medicine
concluded that the substantial declines in the number of
illnesses and injuries between 1992 and 2003 corresponded
directly with the changes in OSHA record-keeping rules?
So are these charts that we are bantering about showing us
how wonderful everything is, aren't these basically slanted
figures, according to the Journal of Occupational and
Environmental Medicine? Or is it, you know----
Mr. Foulke. I am not exactly familiar with that specific--
but I will state this, that if you look at the information that
is provided there, and that is over a long period of time--and
there was a break when the record-keeping changed. But even
since that time period, even--and I won't get into a debate of
if we have got apples to apples or oranges to oranges. But I
would say from that period of time, from that change to the
current, shows a continual decline in injury and illness rates
and our fatality rates, so you know, we are making progress on
it.
Are we there yet? No. And every talk, when I go out and I
speak with people, every time, I tell them, ``One fatality is
one fatality too many.'' And I honestly believe that. So we are
working on that.
But we are trending in the right direction, and, you know,
we are moving as quickly--and we are working on the standards.
So to say that we are not doing that, you know, I would
disagree with your characterization of that.
Mr. Hare. Well, let me just ask you this, then, and
finally--and I hope we will have a chance to ask another one.
What is it going to take for OSHA to be able to go in a timely
fashion? What do you need from us, in terms of Congress?
Is it the lack of inspectors, the lack of funds to hire
additional inspectors? What is it going to take for OSHA to be
able to go in, in a timely fashion, and do the best job that
they can?
Listen, I understand accidents are going to happen. I am
not suggesting for an instant that workers sometimes don't hit
the wrong button, do something.
I am asking, what is it going to take so that we don't have
to have a 10-year lapse between the time somebody may notify
the company or OSHA that you have a problem and their coming in
and doing an inspection?
Mr. Foulke. Well, Congressman, I would say this. And I have
been on both sides of the fence, so I feel like I can kind of
come from a decent perspective here.
You know, I have looked at what OSHA targets. We have our
site-specific targeting where we have identified 14,000
facilities that had the worst injury and illness rates. And
those are the ones that were targeted. And part of that--and so
we are going after the people that had the worst injury and
illness record. So we are focusing in on this.
And we are going to also, as part of our enhanced
enforcement programs, where we find employers that don't seem
to respect the workers' rights to have a safe and healthy
workplace, then we are expanding out on those inspections.
So clearly, we are focusing. And that kind of gets to some
of the questions about what we are doing.
Chairwoman Woolsey. The gentleman's time has expired.
Mr. Foulke. I am sorry.
Chairwoman Woolsey. He is going to get to ask another
question.
Mr. Foulke. I was just trying to answer his----
Chairwoman Woolsey. Finish your thought.
Mr. Foulke. Well, I would just say that we are getting to
that. Clearly, you don't want us to inspect employers that
don't need to have great safety and health worksites. We have
got to get to the people that don't have good worksites.
And I would say to you that OSHA has the best system of
identifying those employers that need to be inspected, and we
are going after them. And like I say, we did 38,000-plus
inspections just in the federal sector.
Chairwoman Woolsey. Thank you.
We are going to have a couple more. I am going to ask
another question. Mr. Hare wants to ask another question. Then
we will wrap up, unless--Mr. Kline, do you have--okay. Thank
you.
Mr. Foulke, my question to you is, how can OSHA change?
What do we need to do to help OSHA change so that they can
catch up with the California laws, Cal-OSHA? What is in the way
of keeping up with California?
Mr. Foulke. Well, you know, with respect to California, I
would just have to say that we have different statutory and
legal burdens to support our rulemaking effort that California
does not have.
Chairwoman Woolsey. So you are saying we need to change our
rulemaking statutory----
Mr. Foulke. No.
Chairwoman Woolsey. I mean, is that holding us back?
Mr. Foulke. It depends on what you would mean by holding
you back. I would submit to you that if you look at the
regulatory process that we have in place under the federal
system, as opposed to California, we have things that the
Congress has put in--Administrative Procedures Act. We have
things in the OSHA Act that we have to follow. So those are
just three of the things that the Congress has intended.
So we have this. And all those things were put on for
specific reasons, that the Congress, in its wisdom, said, ``You
know, we have got to look at these things, because we can't
rush into a standard, unless we have sound science.'' And I
know that is what you want to have.
Chairwoman Woolsey. Okay. California is the size of a
country, 37 million people. If they can do it, why can't the
federal government?
Mr. Foulke. Well, I guess it comes back to what I was just
saying, that we have certain regulatory mandates that the
Congress has required us to do under the act, under the
Congressional Review Act--all those things.
Plus, on top of that, the court systems, as part of their
review process on these things, have indicated that we have to
do certain other things on feasibility and risk assessment.
Chairwoman Woolsey. Okay. I really want to leave a little
bit of my time.
Mr. Foulke. No, I am sorry. I apologize.
Chairwoman Woolsey. I mean, it sounds like we can--you
know, we can't do it because we are us and they are them, and
you know, there is something about learning from those that are
successful.
Mr. Schneider and Mr. Mirer, I would like to ask you to
each take a minute and just respond to whatever it is that you
have heard today that you haven't been able to say anything
about.
Mr. Schneider?
Mr. Schneider. Yes, I think the problem is--you know, I
think there are these regulatory burdens to meet, et cetera,
and they can be met. But the problem that is happening now is
there is a huge lag in time before we even get to rulemaking,
just the political will to decide that we are going to start a
rulemaking and get it going.
Once it gets going, we can meet those burdens, but I think
there really--you know, for example, on silica, we have waited,
you know, years and years, and OSHA has not yet committed as to
when they are going to publish a proposal. And just getting to
that stage is, I think, where the delay is right now in this
administration.
Chairwoman Woolsey. Okay. Thank you.
Mr. Mirer?
Mr. Mirer. I have been doing this 30 years. It is not that
hard to do. There are barriers. They should be reduced. But it
is not that hard to do if the OSHA staff are told to go ahead
and do it: Get together the economic assessment. Put out the
proposal. Hold the hearings. Move it through to the end. Take
the litigation burden and get on with it.
They could do three or four standards, major standards, a
year, or take a few years to get them through, but they could
do it.
And then I ask why, if California could have half the
exposure of carbon monoxide, a quarter of the exposure of the
dry-cleaning chemicals, a fortieth of the exposure of the
solvent chemicals--clearly, the economic impact is not there
because the state is operating.
Why does not OSHA move forward with the process on these
settled questions? We have got to get into the 21st century. We
are not even done with the 20th in terms of scientific
knowledge.
Chairwoman Woolsey. Okay. Thank you.
Mr. Hare?
Mr. Hare. I just have a question for Mr. Schneider and Mr.
Mirer.
I asked the Secretary, and I don't think I got the answer,
so maybe you could help me here. From your perspective, okay,
from both of your perspectives, what can we as the Congress of
the United States do, this institution do, to strengthen this
Agency, to help it function better, to go in and be able to do
the things that Congress has instructed this Agency to do?
It seems to me--I am not suggesting we throw money at a
problem here, but I am wondering, from your end of it--and you
talked about standards and only one. It is mind-boggling that
there has only been one standard issued by OSHA.
But perhaps if you would spend the rest of my 5 minutes
telling me, from your perspective, what can we do to help out
here. Because I think that is what I am here to do, is to try
to find out something we could do to make this Agency work
better than it has.
Mr. Schneider. Thank you very much.
I think, really, what has worked in the past is Congress
has said to the Agency, ``You have 6 months to put out a
standard on lead, or on hazardous waste,'' and the agency has
had to comply with that.
And I think perhaps giving the agency some sort of legal
time tables which they will be held to to put out regulations,
and say, ``You have 3 years to do this,'' give them enough time
that they can comply with it, and perhaps the resources to meet
those deadlines, I think that is the only way that we are going
to sort of maybe bring them up.
And there are other things that could be done, but some of
it is in my testimony.
Mr. Mirer. It is basically the same answer.
Number one, let's get what is left on the regulatory agenda
done: silica, beryllium, some of these other materials that
have been promised and nothing happened.
Second, increase the resources devoted to standard setting
with a requirement that they actually produce something. There
is $16 million a year, 80 people involved in this. They could
be producing more than they are.
Finally, in a broader, longer-term change in the
legislation, OSHA has to be required to respond to petitions
for new protections with the same stringency that it is
required to respond to an employer who wants to fight a
standard. We have to move it forward.
And those three things, I think, would have a big effect.
The last thing is the PEL update project that has been
talked about. That was Representative Norwood's, the late
Representative's interest. We could get that done. You could
get that done in a very short amount of time.
Chairwoman Woolsey. Thank you.
Well, thank you all for coming. We have heard today some
really important information, but also information that I
consider disturbing.
OSHA is failing to keep up with modern-day workforce
hazards, and that, in turn, does not protect American workers.
And this is totally unacceptable.
This coming Saturday is Workers Memorial Day, when we mourn
workers in America and throughout the world, workers who have
been hurt or killed on the job.
And in this country, although we have made a lot of
progress since the passage of OSHA in 1970, we are still losing
workers on the job. We are not where we need to be. And this
administration clearly does not have the health and safety of
workers at the top of its priority list.
Unnecessary tragedies are still occurring, to Mr. Peoples
and other victims of popcorn lung, to the miners who have lost
their lives in Sago and in other mines, and to the millions of
other workers who become sick, injured or killed every day.
As chair of this subcommittee, I pledge to make OSHA
accountable. I pledge to explore legislative and other options
to ensure that necessary and updated standards, as well as
other measures to ensure health and safety, are put into place.
To that end, on Thursday Senator Kennedy and I will be
introducing the Protecting America's Workers Act. This bill
would expand coverage to include public employees and other
workers, assess higher fines and penalties for employers who
ignore the law, enhance whistleblower protections, and, in the
area of standards, mandate the issuance of the standard for
personal protective equipment.
Again, I thank you all for being here. You have been most
marvelous and patient.
As previously ordered, members will have 14 days to submit
additional materials for the hearing record. Any member who
wishes to submit follow-up questions in writing to the
witnesses should coordinate with majority staff within the
requisite time.
Without objection, the hearing is adjourned.
[The prepared statement of Mr. Price of Georgia follows:]
Prepared Statement of Hon. Tom Price, a Representative in Congress From
the State of Georgia
Throughout his career, Congressman Charlie Norwood championed the
improvement of workplace conditions while crafting a reasonable balance
between economic freedom and regulatory compliance for American
businesses. As the former Chairman of the Workforce Protections
Subcommittee, his record is one of great vision and profound impact.
Congressman Norwood brought attention to issues like permissible
exposure limits, non-consensus standards and worker protections. Before
his passing in February, he introduced the Secret Ballot Protection
Act, a piece of legislation aimed at preserving worker freedoms by
ensuring access to the secret ballot in union organizing elections.
And despite the differences between Republicans and Democrats on
workforce matters, Congressman Norwood always strived to bring the two
sides together to tackle workplace safety standards. He understood that
while OSHA, as a regulator, should labor to protect workers and advance
conditions, the agency must also comply with the regulatory process
outlined by Congress decades ago. Surely, there can be common ground in
his approach.
As the Workforce Protections Subcommittee grapples with the
question, ``Have OSHA standards kept up with workplace hazards?,'' it
would be wise to heed his example and remember his record. His work on
permissible exposure limits and non-consensus standards holds valuable
lessons for future debate. This subcommittee would be best served to
honor the legacy of this great Georgian by recognizing his
contributions.
______
[Letter submitted by Adam M. Finkel follows:]
May 8, 2007.
Dear Chairwoman Woolsey: Although I was unable to attend your April
24 hearing ``Have OSHA Standards Kept up with Workplace Hazards?'' in
person, I read all of the testimony with great interest, and viewed the
Q&A portion on the Internet. I would like to provide some additional
information on the issues involved, from the perspective of an expert
in quantitative risk assessment and cost-benefit analysis, and that of
a former Director of Health Standards Programs at OSHA (1995-2000) and
a former Regional Administrator (Region VIII) for OSHA (2000-2003). I
am currently Professor of Environmental and Occupational Health at the
UMDNJ School of Public Health, and a visiting professor of public
affairs at the Woodrow Wilson School at Princeton University, although
I have written these comments on my own time and am not representing
the views of either of my academic institutions. In addition to my
training and expertise in risk assessment, I have written numerous
articles and books on issues of regulatory process, alternative
regulatory design, agency priority-setting, and program evaluation;
beginning later this year, I will also serve as executive director of
the Penn Program on Regulation at the University of Pennsylvania Law
School.
For the past 25 years, I have strongly supported the increased use
of risk assessment and cost-benefit analysis in regulatory decision-
making, so none of my comments on OSHA's disappointing performance
should be mistaken for antipathy to the analytic burdens OSHA must
meet. I simply believe, contrary to the views espoused by several of
your witnesses (notably Assistant Secretary Ed Foulke and attorney
Baruch Fellner) that two fundamental conclusions are indisputable in
light of the scientific, economic, and historical facts:
That the largest preventable health and safety risks
remaining to be addressed in our society occur disproportionately in
U.S. workplaces (as opposed to the ambient environment, consumer
products, the transportation sector, etc.), and therefore, that failing
to regulate means failing to extract benefits that far exceed their
costs; and
That although it is by no means easy for OSHA to
promulgate cost-effective regulations that incorporate the best
available scientific information, OSHA's appalling lack of progress is
clearly due to a failure of will and/or talent--because under different
leaders, OSHA's track record of producing health-protective but fair
standards, meeting all the analytic and public-participation
requirements, was far superior to what it is now.
I should emphasize that my concerns about OSHA's performance began
before the 2001 Inauguration, although clearly output, morale, and
other indices have declined steeply since that watershed. For example,
I believe that some of the most productive ways for OSHA to help create
safer and healthier workplaces involve meaningful partnerships with
industry, sometimes in lieu of regulation, as long as the goal is to
impel needed changes in behavior. Sometimes, traditional regulation
would merely allow the relatively best workplaces to ``backslide,''
while never reaching the worst performers; so in a national OSHA
partnership with both the manufacturers and the installers of
fiberglass insulation codified in 1999, the producers agreed to provide
the needed resources, training, air monitoring, and PPE so that their
customers could better protect their employees. I championed several
such partnerships before leaving Health Standards in 2000, and tried to
establish enforcement partnerships in Region VIII that required general
contractors to improve health and safety performance among their
subcontractors. But the very same ideas that President Bush's first
head of OSHA dismissed as apparently too ``intrusive'' for industry
(apparently preferring instead to emphasize ``alliances,'' also known
as ``praise for continuing to do whatever you're doing'') were met with
benign neglect in the waning years of the Clinton administration,
apparently for being insufficiently punitive to industry.
The way forward, I believe, lies in between these two doctrinaire
positions. Indeed, the one sentence in Mr. Fellner's testimony I agree
with completely is that ``the massive amount of time and resources
applied to the ergonomics regulation clearly delayed and prevented the
promulgation of other OSHA standards.'' I supported the 2000 ergonomics
regulation (although I had developed a rather different version of it
before leaving my position in Health Standards), but I greatly regret
having been instructed in 1998 to stop work on all the other standards
under my purview, including some of the very ones (e.g., tuberculosis,
chromium, Assigned Protection Factors, PEL update chemicals) that the
current OSHA leadership later had the opportunity to ``kill'' or weaken
substantially because they had never been finalized.
I will first provide some specific comments on Mr. Fellner's
testimony, before concluding with a couple of other comments about
issues raised at the hearing.
Concerns about Mr. Fellner's testimony:
1. In the second paragraph of his written testimony, Mr. Fellner
concludes that based on the decline in recorded workplace fatalities
and injuries, ``OSHA must be doing something right.'' As much as I want
to believe this, having devoted 11 years of my career to OSHA, we
simply don't know how steep the real decline, if any, might be, and
what portion of it (if any) is due to OSHA's presence rather than to
inexorable trends. The fatality rate was falling before there was an
OSHA, it fell twice as steeply in the 1980s as it has since then, and
the number of workplace fatalities rose in two of the past three years.
With regard to injuries, the amount of under-reporting generates
``noise'' in the data that simply swamps any reliable ``signal'' of
improvement (see, for example, Reference (1) below). More
significantly, the statistics Mr. Fellner touts simply shed essentially
no light on occupational illnesses (which scientists agree cause more
than 90 percent of all of the premature deaths in the workplace),
because the OSHA and Bureau of Labor Statistics recording systems are
not designed to capture these sorts of fatalities. It has been 25 years
since the last comprehensive survey of workplace exposures to hazardous
substances, during which time Congress has funded dozens of large
surveys of environmental hazards, dietary habits, etc. To the extent
that OSHA is ``doing something right,'' I am thus deeply concerned that
this may not apply at all to the area of occupational health (as
opposed to safety). The key measure of OSHA's activity in safety versus
health is the number of inspections OSHA conducts in each area. OSHA
claims (Ref. 2) that it conducted more than 6700 ``health inspections''
in FY06, or roughly 17 percent of its total inspections. But in
response to a lawsuit I filed in 2005 under the Freedom of Information
Act (see item #7 below), OSHA acknowledged that in only about 3 percent
of the inspections in its history (roughly 70,000 inspections out of
over 2 million conducted) were any chemical samples taken at all. It
seems, therefore, that the vast majority of the so-called ``health
inspections'' may in fact be safety inspections conducted by
enforcement personnel with industrial hygiene credentials, and are only
coded as ``health inspections.''
2. Throughout his testimony, Mr. Fellner exaggerates how hard it is
for OSHA to promulgate standards. Perhaps it appears ``daunting'' to a
non-scientist for an agency to have to synthesize and interpret
toxicologic, epidemiologic, and engineering data, but that is exactly
what risk assessors do routinely and well. Indeed, the quotation he
offers from Cellular Phone Taskforce v. FCC makes clear that regulatory
risk assessment is, if anything, even easier to conclude than risk
assessment in other arenas, because when the evidence is at its most
controversial, the ``courts' deference to expert determinations should
be [and is] at its greatest.'' And, despite the many requirements for
OSHA to invite participation by stakeholders and respond substantively
to their comments--all of which I support--when the will is there, the
obstacle course can be completed cleanly and rather quickly. In one 18-
month period of activity (late 1996 to early 1998)--OSHA promulgated
three major final health standards--those for 1,3-butadiene, methylene
chloride, and generic respiratory protection--and defended them in
Congressional oversight hearings and court challenges, without a single
provision being substantively weakened following any of this scrutiny.
3. In his third paragraph, Mr. Fellner refers to the recent
hexavalent chromium standard as ``a win for all parties and the
vindication of a process that functioned properly to protect American
workers.'' I have had no involvement in this rulemaking since leaving
Health Standards in 2000, but I will point out that by OSHA's own
calculations, the final standard leaves behind a lifetime excess cancer
risk of between 10 and 45 cases per 1000 workers exposed under the
legal limit. This risk is 10 to 45 times higher than the highest risk
(1 per 1000) that the Supreme Court said (in its 1980 Benzene decision)
could possibly be considered acceptably small, and 10,000 to 45,000
times higher than the 1-in-one-million standard Congress has called for
in various EPA statutes. I would respectfully suggest that this
regulation does not represent a ``win'' for chromium workers.
4. Mr. Fellner misses one of the main points of the Supreme Court's
1980 Benzene decision when he states that ``OSHA [cannot] * * *
recognize a few studies that seem to point in the direction of the most
protective standard it can promulgate.'' The majority in Benzene made
clear that OSHA has complete license to ``use conservative assumptions
in interpreting the data with respect to carcinogens, risking error on
the side of overprotection rather than underprotection.'' The use of
``conservative'' assumptions has been endorsed by several National
Academy of Sciences committees (see, e.g., Ref. 3) and was recently re-
affirmed in a major EPA report, released by the Bush administration
Ref. 4). It is crucial to note that in actual practice, OSHA's use of
risk-assessment assumptions is markedly less ``conservative'' than that
of EPA and other agencies (even though its resulting ``acceptable''
risk estimates are nevertheless much less stringent then those other
agencies would allow). Still, an OSHA that recognized the gravity of
its unfinished business could certainly make better use of Benzene and
reduce the complexity of its assessments, if that was indeed
contributing to the lack of output. I should also mention for
completeness that if anything is exaggerated in cost-benefit analysis,
it is the estimates of the costs of regulation--an ingrained bias that
causes OSHA's (and other agencies') cost-benefit determinations to err
on the side of under-regulation (see Refs. 5-7).
5. On the last page of his written testimony, Mr. Fellner makes
reference to ``hazards du jour.'' This strikes me as a thinly-veiled
but bizarre insult to those inside and outside the Agency who are
concerned about the retreat from standard-setting. The Roman Empire
(Pliny the Elder) knew about silicosis 2100 years ago, but OSHA's limit
is still twice as high as the level NIOSH recommended more than 30
years ago. The beryllium PEL (2 micrograms per m3 of air, encountered
every working day for a 45-year working lifetime) was developed in
1949, and it has been clear for more than a decade that the equivalent
of one day's exposure at that level has caused a grave lung disease in
some workers so exposed. Yes, OSHA is also failing to respond to new
hazards, but these are not ``fads.''
6. In his next sentence, Mr. Fellner refers to outsiders trying to
``micromanage'' the agency. This choice of words is also disingenuous,
unless you believe that ``micromanaging'' can apply to a request as
fundamental as ``do something rather than do nothing.'' Simply as a
logical, not a partisan point of reference, it seems to me that this is
akin to accusing those calling for a withdrawal of U.S. troops from
Iraq of trying to ``micromanage the war.'' In any event, the Supreme
Court (ref. 8) recently expressed its clear view that when an agency
(in this case, EPA) fails to decide whether it should even consider
regulating an important hazard, ``outsiders'' may have a right to force
it to perform this core task.
7. In his last bullet point, Mr. Fellner poses a laudable question:
``Is OSHA * * * directing its inspectors to workplaces with the
deadliest and most serious workplace hazards subject to regulations
that are already on the books?'' I believe that as important as this
question is, no one can answer it properly at present, in large part
because OSHA is actively thwarting such inquiries. I was forced to file
suit against OSHA under FOIA in 2005, because I made a routine request
for OSHA's air sampling data in order to ask this very question, among
others (see Ref. 9). I had hoped to explore, for example, whether OSHA
tends to increase its level of effort to inspect workplaces for
particular substances, once it has found widespread violations of PELs
for those substances--my experience as Director of Health Standards and
as a Regional Administrator suggests that OSHA rarely seeks to make
these sorts of connections, and may even turn its attention away from
substances where widespread non-compliance has been detected. But OSHA
has withheld these data from me, claiming (despite having released the
data to others on many previous occasions) that it now believes there
are ``trade secrets'' somewhere within the database--secrets that it
has failed to mark as such and therefore cannot selectively redact. In
some of its court filings in this pending litigation, OSHA has admitted
that it has never analyzed (and has no plans to analyze) its own
exposure data for beryllium, even though at least 11 of its own
inspectors have been found to have blood abnormalities caused by
beryllium exposure. The exposure histories of these inspectors would
certainly provide one indication of where ``the deadliest and most
serious workplace hazards'' could be found, but OSHA apparently has no
interest in asking this question, or in allowing others to ask it.
Other Comments:
I also want to comment on the statement Rep. Wilson made at the
hearing, to the effect that OSHA has issued ``22 standards'' since
Inauguration Day 2001. OSHA's Office of Communications recently
prepared a document entitled ``OSHA Final Standards Published 1971 to
Present'' that indeed lists 22 actions after January 20, 2001. But by
my count, 15 of the 22 items were either technical clarifications (4
items), approving state plans (2), plain language rewrites of existing
standards (1), changes to whistleblower procedures (1), or substantive
actions that served to deregulate rather than impose new requirements
(7). Curiously, the OSHA document lists only 3 standards for calendar
year 1997 (when I was HSP director)--but by the same expansive rules of
what to list, we actually published 13 such actions in 1997 alone, and
more than 70 during the first six years of the Clinton administration.
I understand OSHA's frustration with ``bean counting,'' but the proper
response to those concerned with quantity over quality is to emphasize
the significance of what was done, not to grossly exaggerate the output
in one period while ignoring the same categories in previous periods.
Finally, I wish to make two points about the hazards of diacetyl.
First, Mr. Fellner stated during questioning from Mr. Bishop that
``there is no dose-response curve with respect to diacetyl,'' and that
``in the absence of a dose-response curve, * * * as the Supreme Court
indicated in the Benzene decision in 1980, that is insufficient to
promulgate a standard at very low levels.'' I believe these statements
are misleading at best, both as a scientific and legal matter. It would
certainly be desirable to be able to know more about the shape of the
dose-response function below the levels of diacetyl exposure that
unambiguously can cause grave harm to those exposed--but it's certainly
not true that there is no such function. It may be steeper at high
doses than at low ones, and it may even have a threshold, but while we
await such refinement there exists a wealth of information supporting
the first-order assumption that (especially when extrapolating down by
a factor of 100 or less) a linear function makes biological sense (see,
e.g., Ref. 10). I lack Mr. Fellner's extensive training in law, but I
will observe that the Benzene court faulted OSHA for ``avoiding the
Secretary's threshold responsibility of establishing the need for more
stringent standards'' and avoiding its ``obligation to find that a
significant risk is present before it can characterize a place of
employment as `unsafe' ''--it did not focus on the precise showing OSHA
would have to make to support any particular exposure reduction once it
had shown (through quantitative risk assessment) that some control was
necessary to reduce a ``significant'' risk. In other words, OSHA does
not have to know the precise shape of the diacetyl dose-response
relationship if it wished to make the scientific and legal case (which
I believe is, as they say, a ``no-brainer'') that uncontrolled exposure
to diacetyl poses a significant risk of material impairment of health.
Secondly, Mr. Foulke's testimony indicated that in 2001, following
release of a NIOSH report, ``OSHA promptly alerted its Regional
Administrators and Area Directors to NIOSH's findings and instructed
its field personnel to look into the issue when encountering
individuals working around butter flavoring in popcorn manufacturing.''
I was one of the 10 Regional Administrators at that time, and I
remember receiving the NIOSH report. However, I also remember being
frustrated to learn shortly thereafter that Region VII had established
an alliance with the Popcorn Board, in which it received the names and
addresses of relevant facilities, but only in that Region. I was
dismayed that Region VII did not take the opportunity to ask the Board
for the complete list of facilities nationwide, but was told (by my
colleague and by the Assistant Secretary at the time) that if I wanted
to know where the facilities were in our Region, I should ``go get my
own alliance.'' In effect, the OSHA leadership warned the field that
lung disease might be found where diacetyl was used, but offered no
assistance in helping us determine where the diacetyl was.
Conclusion:
Less than 10 years ago, I was proud to be part of an OSHA that was
``keeping up with workplace hazards.'' During the period 1996-1998, we
had roughly 12 doctoral-level staff in Health Standards, and we put out
three major final rules, the tuberculosis proposal, completed cutting-
edge risk assessments for six of the most important PEL update
chemicals, established the fiberglass and other enforceable product-
stewardship agreements, etc. Now only 2 or 3 health scientists with
advanced degrees remain, and the output has plummeted, even though the
scientific and procedural hurdles have not gotten any higher. For
example, the methylene chloride rule has one of the most sophisticated
biologically-based quantitative risk assessments ever conducted by any
federal agency, and we re-wrote the entire analysis for this rule in
under 2 years.
No one who has any expertise in regulatory science, economics, or
process could possibly answer the question posed by this hearing
(``Have OSHA Standards Kept up with Workplace Hazards?'') in any way
but ``no.'' The solution is not to complain about the need to do good
science, but simply to get back to doing good science, like OSHA used
to do.
Thank you for the opportunity to submit my views for the record on
these important public policy and scientific questions.
Sincerely,
Adam M. Finkel, Sc.D., CIH.
references
1. Rosenman KD, et al. ``How much work-related injury and illness
is missed by the current national surveillance system?'' J Occup
Environ Med, 2006;48(4): 357-365.
2. Morris, J. ``Slow Motion: OSHA Waits for More Proof before
Taking Action against a Lethal Lung Disease.'' National Journal, May 5,
2007, pp. 32-35.
3. National Research Council. Science and Judgment in Risk
Assessment, National Academy Press, 1994. See esp. pages 89 and 632 for
endorsements of ``conservative'' assumptions by the entire Committee,
as well as pp. 601-627, for a proposal (endorsed by some of the members
of the Committee) to judge alternative assumptions in part by the
extent to which they might introduce errors of risk under-estimation.
4. U.S. Environmental Protection Agency. ``An Examination of EPA
Risk Assessment Principles and Practices.'' Office of the Science
Advisor, EPA/100/B-04/001, March 2004, 192 pp.
5. U.S. Office of Technology Assessment. Gauging Control Technology
and Regulatory Impacts in Occupational Safety and Health: An Appraisal
of OSHA's Analytic Approach, report #OTA-ENV-635, September 1995, 102
pp.
6. Harrington, Winston, Richard D. Morgenstern and Peter Nelson
(2000). ``On the Accuracy of Regulatory Cost Estimates.'' Journal of
Policy Analysis and Management, 19(2), pp. 297-322.
7. Goodstein, Eban, and Hart Hodges (1997). ``Polluted Data:
Overestimating Environmental Costs.'' The American Prospect, 35 (Nov./
Dec.), pp. 64-69.
8. U.S. Supreme Court. Massachusetts et al v. EPA et al., No. 05-
1120, April 2, 2007.
9. Adam M. Finkel v. United States Department of Labor,
Occupational Safety and Health Administration, No. 3:05-cv-05525-MLC-
TJB, U.S. District Court, District of New Jersey.
10. Martha Crawford and Richard Wilson (1996). ``Low-Dose
Linearity: The Rule or the Exception?'' Human and Ecological Risk
Assessment, 2, pp. 305-330.
______
[Prepared statement of the Printing Industries of America,
Inc. (PIA) follows:]
Prepared Statement of the Printing Industries of America, Inc. (PIA)
The Printing Industries of America, Inc. (PIA) is pleased to
present this statement for the record before the House Committee on
Education and Labor Subcommittee on Workforce Protections, and thanks
Chairwoman Woolsey for holding a hearing to examine the important topic
of workplace safety. PIA is the world's largest graphic arts trade
association representing an industry with more than 1.2 million
American employees. PIA's nearly 12,000 member companies are dedicated
to the goal of providing safe work environments.
PIA would like to add to the dialogue on OSHA standards and
workplace hazards by commenting on two specific aspects of workplace
safety: the relationship of OSHA Standards to market-driven workplace
safety technologies and employer-employee workplace safety education,
particularly in the form of OSHA-Industry voluntary alliances.
OSHA Standards & Market-Driven Workplace Safety Technology
As we consider if and how OSHA Standards are keeping up with
workplace hazards, PIA believes it is appropriate to consider the
nature and structure of OSHA standards. Many of OSHA's standards are
written in a static nature and quickly become outdated due to changes
in technology and work practices. The process that OSHA has to observe
in the development of new or in the revision of existing standards
hampers the ability of OSHA to keep pace with changes in the workplace.
In addition to being quickly outdated, many of OSHA standards are
cumbersome, laden with administrative burdens, and are inflexible. The
combination of these factors has created a situation where safety can
be jeopardized and is not advanced.
For example, since OSHA released its final version of the Lockout/
Tagout Standard in 1989, tremendous progress has been made in safety
systems of manufacturing equipment that have taken advantage more
reliable circuitry, redundant systems, interlocks, guards, and light
curtains. Ever since the standard was released, the printing industry
has had ongoing discussions with OSHA regarding the application of the
Lockout/Tagout Standard to routine procedures. These discussions have
resulted in two letters of interpretations, but the effort to obtain
these letters has taken years of effort. The letters focus on only one
main alternative that can be followed for minor servicing and
maintenance and do not recognize other alternatives brought about by
advanced technologies.
One such alternative is the use of ``light curtains'' that form
barriers in front of the point of operation and prevent a machine from
operating if the light beam is broken by an object, like a hand or
other body part. These light curtains are used to control the hazards
of unexpected machine movement during the operation of a particular
type of cutter, which is used to cut large press sheets into small
ones. The light curtains also protect the worker from unexpected
movement during the knife changing sequence. However, OSHA still
requires that the equipment be completely de-energized during this
particular service and maintenance procedure, and, most importantly,
power to the cutter is required so that the blade can be positioned to
allow for its removal and replacement. Turning off the power is not
necessary, is cumbersome, and creates a disincentive for workers to
follow standards, which could lead to unnecessary injuries.
Another positive example of workplace safety technology outpacing
OSHA Standards is the state-of-the-art printing press that comes with
automatic blanket washers that clean ink and other debris off blanket
cylinders used to transfer printed images to paper. Workers previously
washed industrial blankets by hand. The new technology is performed
solely by machines, thereby reducing a worker's exposure to danger.
Neither of these worker safety initiatives was created by
regulation or legislation, but by marketplace demand for safer
processes and more competitive practices for American manufacturers.
PIA believes that OSHA Standards should be written to allow for the new
and improved market-driven safety technology in today's workplace that
allow workers to do their jobs more efficiently and in an improved,
safer manner.
Employer-Employee Workplace Safety Education
Employee education is a key part of workplace safety; it's outlined
as a ``responsibility'' in the Act. Specifically, section (b) (2) of
the original OSH Act states ``that employers and employees have
separate but dependent responsibility'' to engage in safe work
environments.
In recent years, there has been a joint effort by OSHA and industry
to increase employee training on workplace safety.
In 2002, the OSHA--Graphic Arts Coalition Alliance on ergonomics
was signed as one of the first voluntary is one example of industry
helping OSHA conduct employee education on safety issues. The purpose
of this Alliance, which was resigned in 2004 and again last summer, is
to utilize the Printing Industries of America as a partner to:
help identify and prevent workplace hazards specific to
print process, like screen-printing or lithography,
develop and disseminate case study illustrating the
business value of safety and health,
communicate workplace safety outreach through national PIA
conferences and local meetings of printers, and to
promote PIA member companies' participation in compliance
assistance programs, Voluntary Protection Programs (VPP) and the Safety
and Health Achievement Recognition Program (SHARP). Utilizing the trade
association to promote these programs seems to work; Printing
Industries of America member companies, such as RR Donnelley & Sons in
Lynchburg, VA and Ploy Print, Inc. of Tucson, AZ, have received VPP and
SHARP awards.
The Alliance also puts safety tools right in the hands of workers.
For example, the Alliance's e-tool allows a worker in a screen printing
facility to log on, select his or her printing specialty process to
learn about common hazards and about what solutions OSHA and other
workers in the same field recommend minimizing these hazards.
Alliances like this are important because OSHA can't educate all
employers and employees by itself. PIA hopes that OSHA will consider
alliances such as the one governing the graphic arts industry as an
important tool in fulfilling the ``responsibilities and rights'' aspect
of the OSH Act, and will continue utilizing such private-public
partnerships to further the efforts of minimizing workplace hazards and
improving overall worker safety.
Additionally, PIA would be remiss in not noting that just as OSHA
can't educate all employers and employees by itself; neither can
alliances such as the OSHA Graphic Arts Coalition Alliance be fully
responsible for worker safety education. Employees must be equal
partners in this venture and must take initiative to follow existing
OSHA Standards to protect themselves from hazards.
In conclusion, PIA, on behalf of its nearly 12,000 member companies
employing 1.2 million American employees, commends the Subcommittee for
examining the topic of workplace safety. PIA looks forward to working
with Congress and with OSHA to further initiatives that provide
practical solutions to a shared goal of minimizing workplace hazards
and improving overall workplace safety in the graphic arts industry.
Thank you for the opportunity to comment on this important topic.
______
[Prepared statement of the Tree Care Industry Association
(TCIA) follows:]
[Whereupon, at 3:59 p.m., the subcommittee was adjourned.]