[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
ADDRESSING CONCERNS ABOUT
THE U.S. DEPARTMENT OF LABOR'S
USE OF NON-CONSENSUS STANDARDS
IN WORKPLACE HEALTH AND SAFETY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
of the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
June 14, 2006
__________
Serial No. 109-44
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://edworkforce.house.gov
______
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28-432 WASHINGTON : 2006
_____________________________________________________________________________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
HOWARD P. ``BUCK'' McKEON, California, Chairman
Thomas E. Petri, Wisconsin, Vice George Miller, California,
Chairman Ranking Minority Member
Michael N. Castle, Delaware Dale E. Kildee, Michigan
Sam Johnson, Texas Major R. Owens, New York
Mark E. Souder, Indiana Donald M. Payne, New Jersey
Charlie Norwood, Georgia Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan Robert C. Scott, Virginia
Judy Biggert, Illinois Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio Carolyn McCarthy, New York
Ric Keller, Florida John F. Tierney, Massachusetts
Tom Osborne, Nebraska Ron Kind, Wisconsin
Joe Wilson, South Carolina Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada David Wu, Oregon
John Kline, Minnesota Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado Susan A. Davis, California
Bob Inglis, South Carolina Betty McCollum, Minnesota
Cathy McMorris, Washington Danny K. Davis, Illinois
Kenny Marchant, Texas Raul M. Grijalva, Arizona
Tom Price, Georgia Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico Tim Ryan, Ohio
Bobby Jindal, Louisiana Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New
York
[Vacancy]
Vic Klatt, Staff Director
Mark Zuckerman, Minority Staff Director, General Counsel
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
CHARLIE NORWOOD, Georgia, Chairman
Judy Biggert, Illinois, Vice Major R. Owens, New York
Chairman Ranking Minority Member
Ric Keller, Florida Dennis J. Kucinich, Ohio
John Kline, Minnesota Lynn C. Woolsey, California
Kenny Marchant, Texas Timothy H. Bishop, New York
Tom Price, Georgia [Vacancy]
Thelma Drake, Virginia George Miller, California, ex
Howard P. ``Buck'' McKeon, officio
California,
ex officio
C O N T E N T S
----------
Page
Hearing held on June 14, 2006.................................... 1
Statement of Members:
Norwood, Hon. Charlie, Chairman, Subcommittee on Workforce
Protections, Committee on Education and the Workforce...... 1
H.R. 5554, the Workplace Safety and Health Transparency
Act of 2006............................................ 2
Prepared statement of.................................... 4
Letter of support from Independent Lubricant
Manufacturers Association.............................. 58
Prepared statement of Associated Builders and Contractors 59
Owens, Hon. Major R., Ranking Minority Member, Subcommittee
on Workforce Protections, Committee on Education and the
Workforce.................................................. 5
Newspaper articles:
``Bush Forces a Shift in Regulatory Thrust; OSHA Made
More Business-Friendly,'' Washington Post, August
15, 2004........................................... 7
``Cancer Hits 283 Rescuers of 9/11,'' New York Post,
June 11, 2006...................................... 13
Statement of Witnesses:
Casper, Joseph S., Vice President, Environment, Health &
Safety, the Brick Industry Association..................... 29
Prepared statement of.................................... 31
Foulke, Edwin G., Jr., Assistant Secretary of Labor for
Occupational Safety and Health............................. 14
Prepared statement of.................................... 16
Michaels, David, Ph.D., MPH, Director, the Project on
Scientific Knowledge and Public Policy; Research Professor
and Associate Chairman, Department of Environmental and
Occupational Health, George Washington University.......... 35
Prepared statement of.................................... 36
Supplemental testimony--court cases...................... 49
Sarvadi, David G., Esq., Keller and Heckman LLP.............. 40
Prepared statement of.................................... 41
Supplemental testimony--court cases...................... 52
Additional Materials Supplied:
Letter submitted by the Brick Industry Association........... 60
Letter submitted by the Chamber of Commerce of the United
States..................................................... 61
Letter submitted by Henry Chajet, Esq., Patton Boggs LLP..... 62
Letter submitted by the National Mining Association.......... 63
Letter submitted by the National Stone, Sand & Gravel
Association................................................ 64
Letter submitted by the Associated General Contractors of
America.................................................... 64
Letter submitted by the Masonry Contractors Association of
America.................................................... 65
Letter submitted by the Association of Occupational and
Environmental Clinics...................................... 66
Prepared statement of Brush Wellman Inc...................... 66
Letters submitted by Industrial Minerals Association......... 70
Prepared statement of the Interlocking Concrete Pavement
Institute.................................................. 72
Letter submitted by the National Association of Manufacturers 73
Prepared statement of the National Concrete Masonry
Association................................................ 73
Prepared statement of the Society for Occupational and
Environmental Health....................................... 74
Letter submitted by the Portland Cement Association.......... 75
ADDRESSING CONCERNS ABOUT
THE U.S. DEPARTMENT OF LABOR'S
USE OF NON-CONSENSUS STANDARDS
IN WORKPLACE HEALTH AND SAFETY
----------
Wednesday, June 14, 2006
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:35 a.m., in
room 2175, Rayburn House Office Building, Hon. Charlie Norwood
[chairman of the subcommittee] presiding.
Present: Representatives Norwood, Kline, McKeon, Owens, and
Kucinich.
Staff present: Steve Forde, Communications Director; Rob
Gregg, Legislative Assistant; Jessica Gross, Press Assistant;
Richard Hoar, Professional Staff Member; Jim Paretti, Workforce
Policy Counsel; Molly McLaughlin Salmi, Deputy Director of
Workforce Policy; Deborah L. Emerson Samantar, Committee Clerk/
Intern Coordinator; Loren Sweatt, Professional Staff Member;
Michele Evermore, Legislative Associate/Labor; Tylease
Fitzgerald, Legislative Assistant/Labor; Peter Galvin, Senior
Legislative Associate; Marsha Renwanz, Legislative Associate/
Labor.
Chairman Norwood [presiding]. A quorum being present, the
Subcommittee on Workforce Protections will come to order.
We are meeting here today to hear testimony on addressing
concerns about the U.S. Department of Labor's use of
nonconsensus standards in workplace health and safety.
Under committee rule 12(b), opening statements are limited
to the chairman and the ranking minority member of the
subcommittee. Therefore, if other members have statements, they
may be included in the hearing record.
With that, I ask unanimous consent for the hearing record
to remain open for 14 days to allow member statements and other
extraneous material referenced during the hearing to be
submitted in the official hearing record.
Without objection, so ordered.
The last time I called this subcommittee to order in late
April, I declared the Department of Labor's reliance on
nonconsensus standards set by nongovernment organizations had
to stop. I was not kidding then and I am deadly serious about
it today. I have called this hearing to further this
subcommittee's investigation into the use of nonconsensus
standards in workplace health and safety regulations.
As most of you know, I am particularly concerned that DOL's
hazardous communication rule automatically incorporates such
standards behind closed doors without public input and without
transparency. This is simply unacceptable and it is high time
that Congress stepped in to force a change.
During our April hearing, witnesses described attempts to
provide one specific group, the American Council of Government
and Industrial Hygienists, with information before they set
threshold limit values, or TLVs, on exposure limits. We heard
that stakeholders are frustrated by the lack of communication,
the lack of input, and the closed nature of the process in
which TLVs are set.
Quite frankly, I do not blame them. After all, if my small
business was forced to adjust my operations every time a TLV
changes, I would be fit to be tied as well.
Let me speak bluntly. I believe that many TLVs fail the
smell test when it comes to sound science. I believe many are
adopted with little critical analysis other than a literature
search. And not to put too fine a point on this matter, I
believe many are produced by government employees acting on a
personal agenda that they cannot accomplish during their day
job.
Now, I might not be able to change the TLV process. That is
for the organization's board of directors to decide. But if
TLVs are to influence Federal regulation that business, labor
and employees everywhere must abide by, the Department of Labor
must require the same scrutiny that other Federal regulations
undergo before they are made. For in effect, when you make a
regulation or a rule, it is law.
For that reason, I have introduced the Workplace Safety and
Health Transparency Act of 2006, known as H.R. 5554.
[The bill follows:]
H.R. 5554
To amend the Occupational Safety and Health Act of 1970 and the
Federal Mine Safety and Health Act of 1977 to prohibit the promulgation
of safety and health standards that do not meet certain requirements
for national consensus standards.
in the house of representatives
June 8, 2006
Mr. Norwood (for himself, Mrs. Miller of Michigan, Mr. Wicker, and
Mr. Tiahrt) introduced the following bill; which was referred to the
Committee on Education and the Workforce
a bill
To amend the Occupational Safety and Health Act of 1970 and the
Federal Mine Safety and Health Act of 1977 to prohibit the promulgation
of safety and health standards that do not meet certain requirements
for national consensus standards.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Workplace Safety and Health
Transparency Act of 2006''.
SEC. 2. ADOPTION OF NONGOVERNMENTAL STANDARDS UNDER THE OCCUPATIONAL
HEALTH AND SAFETY ACT.
(a) Adoption by OSHA.--The Occupational Health and Safety Act of
1970 (29 U.S.C. 651 et seq.) is amended by adding after section 6 the
following:
``adoption of nongovernmental standards
``Sec. 6A. (a) Effective on the date of enactment of this section,
the Secretary shall not promulgate or incorporate by reference any
finding, guideline, standard, limit, rule, or regulation based on a
determination reached by any organization, unless the Secretary
affirmatively finds that such determination--
``(1) has been adopted and promulgated by a nationally
recognized standards-producing organization under procedures
whereby it can be determined by the Secretary that persons
interested and affected by the scope or provisions of the
standard have reached substantial agreement on its adoption;
``(2) was formulated in a manner which afforded an
opportunity for diverse views to be considered; and
``(3) has been designated as such a standard by the
Secretary, after consultation with other appropriate Federal
agencies.
Such finding and a summary of its basis shall be published in
the Federal Register and shall be considered a final action
subject to review by a United States District Court in
accordance with section 706 of title 5, United States Code.
``(b) With respect to rulemaking proceedings initiated by the
Secretary but not finalized prior to the date of enactment of this
section, the Secretary shall, within 180 days of the date of enactment
of this section, investigate and identify the use of, influence of, or
reliance upon any finding, guideline, standard, limit or any other
recommendation that has not been made by an organization and procedure
that does not comply with the requirements set forth in subsection (a).
The Secretary shall publish the results of such investigations in the
Federal Register and, in any final rule, standard, or official
recommendation that is prescribed under such proceedings, shall not
incorporate, use, or rely upon any finding, guideline, standard, limit,
or other recommendation that does not comply with the requirements set
forth in subsection (a). The Secretary's actions under this section
shall be subject to review by a United States district court of
appropriate jurisdiction.''.
(b) Approval of State Plans.--Section 18 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 667) is amended by adding at the end
the following:
``(i) The Secretary shall not approve a State plan under this
section that incorporates by reference any finding, guideline,
standard, limit, rule, or regulation based on a determination reached
by any organization, unless the Secretary determines that the standards
adopted in such plan are standards that--
``(1) have been adopted and promulgated by a nationally
recognized standards-producing organization under procedures
whereby it can be determined by the State that persons
interested and affected by the scope or provisions of such
standards have reached substantial agreement on their adoption;
and
``(2) were formulated in a manner which afforded an
opportunity for diverse views to be considered.''.
SEC. 3. ADOPTION OF NONGOVERNMENTAL STANDARDS UNDER THE FEDERAL MINE
SAFETY AND HEALTH ACT.
Section 101 of the Federal Mine Safety and Health Act of 1977 (30
U.S.C. 811) is amended by adding at the end the following:
``(f)(1) Effective on the date of enactment of this section, the
Secretary shall not promulgate or incorporate by reference any finding,
guideline, standard, limit, rule, or regulation based on a
determination reached by any organization, unless the Secretary
affirmatively finds that such determination--
``(A) has been adopted and promulgated by a nationally
recognized standards-producing organization under procedures
whereby it can be determined by the Secretary that persons
interested and affected by the scope or provisions of the
standard have reached substantial agreement on its adoption;
``(B) was formulated in a manner which afforded an
opportunity for diverse views to be considered; and
``(C) has been designated as such a standard by the
Secretary, after consultation with other appropriate Federal
agencies.
Such finding and a summary of its basis shall be published in the
Federal Register and shall be considered a final action subject to
review by a United States District Court in accordance with section 706
of title 5, United States Code.
``(2) With respect to rulemaking proceedings initiated by the
Secretary but not finalized prior to the date of enactment of this
subsection, the Secretary shall, within 180 days of the date of
enactment of this subsection, investigate and identify the use of,
influence of, or reliance upon any finding, guideline, standard, limit
or any other recommendation that has not been made by an organization
and procedure that does not comply with the requirements of paragraph
(1). The Secretary shall publish the results of such investigations in
the Federal Register and, in any final rule, standard, or
recommendation that is prescribed under such proceedings, shall not
incorporate, use, or rely upon any finding, guideline, standard, limit,
or other official recommendation that does not comply with the
requirements of paragraph (1). The Secretary's actions under this
section shall be subject to review by a United States district court of
appropriate jurisdiction.''.
______
Chairman Norwood. My legislation would prohibit the
Department of Labor from incorporating or relying upon a
nongovernmental organization's standard unless the secretary of
labor determines and certifies that the standard complies with
the OSH Act definition of a consensus standard.
My legislation would also require that OSHA plans to
certify to the secretary of labor that the standards they
administer meet those same consensus standard criteria. In
short, my goal in drafting H.R. 5554 is to reestablish
transparency in the rulemaking process. The legislation will
ensure that any outside workplace standard that DOL
incorporates by reference meets the high standards required by
the OSH Act.
After all, any standard, recommendation or guidance
produced by an outside organization should be subject to a
fair, open and transparent process if it plays an official role
in influencing that regulation.
I now want to say this. The right to petition and redress
your government is a fundamental constitutional right. Offer
what criticism you would like of this bill, but I do not
believe anyone here would dispute that principle. I am simply
trying to reestablish that right within OSHA regulations.
I am pleased to have the OSHA administrator with us today,
and I welcome his comments and views on the agency's standard-
setting practice. I also look forward to hearing from our
witnesses about their concerns regarding DOL's use of
nonconsensus standards, and how H.R. 5554 will hopefully
improve that practice.
I would now like to yield to my friend, Mr. Owens, for
whatever opening statement he wishes to make.
Prepared Statement of Hon. Charlie Norwood, Chairman, Subcommittee on
Workforce Protections, Committee on Education and the Workforce
The last time I called this subcommittee to order in late April, I
declared the Department of Labor's reliance on non-consensus standards
set by non-government organizations had to stop. I was not kidding
then, and I am deadly serious about it now.
I've called this hearing to further this subcommittee's
investigation into the use of non-consensus standards in workplace
health and safety regulation.
As most of you know, I am particularly concerned that DOL's Hazard
Communications rule automatically incorporates such standards behind
closed doors without public input and without transparency. This is
unacceptable, and it is high time that Congress step in to force a
change.
During our April hearing, witnesses described attempts to provide
one specific group, the American Council of Government Industrial
Hygienists, with information before they set Threshold Limit Values, or
TLVs, on exposure limits.
We heard that stakeholders are frustrated by the lack of
communication, the lack of input, and the closed nature of the process
in which TLVs are set. Quite frankly, I do not blame them. After all,
if my small business was forced to adjust my operations every time a
TLV changes, I'd be fit-to-be-tied as well.
Let me speak bluntly. I believe that many TLVs fail the smell test
when it comes to sound science. I believe many are adopted with little
critical analysis other than a literature search. And not to put too
fine a point on the matter, I believe many are produced by government
employees acting on a personal agenda that they cannot accomplish at
their day job.
Now I might not be able to change the TLV process--that's for the
organization's board of directors to decide. But if TLVs are to
influence federal regulation that business, labor and employees
everywhere must abide by, the Department of Labor must require the same
scrutiny that other federal regulations undergo before they are made
final.
For that reason, I have introduced the Workplace Safety and Health
Transparency Act of 2006, H.R. 5554. My legislation would prohibit the
Department of Labor from incorporating or relying upon a non-
governmental organization's standard unless the Secretary of Labor
determines and certifies that the standard complies with the OSH Act
definition of a consensus standard.
My legislation would also require state OSHA plans to certify to
the Secretary of Labor that the standards they administer meet these
same ``consensus standard'' criteria.
In short, my goal in drafting H.R. 5554 is to reestablish
transparency in the rulemaking process. The legislation will ensure
that any outside workplace standard that DOL incorporates by reference
meets the high standards required by the OSH Act. After all, any
standard, recommendation or guidance produced by an outside
organization should be subject to a fair, open, and transparent process
if it plays an official role in influencing regulation.
Finally, I want to say this. The right to petition and redress your
government is a fundamental, Constitutional right. Offer what criticism
you would like to the bill, but I do not believe any one disputes this
principal. I am simply trying to reestablish that right within OSHA
regulations.
I am pleased to have the OSHA Administrator with us today, and I
welcome his comments and views on the Agency's standard-setting
practice.
I also look forward to hearing from our witnesses about their
concerns regarding DOL's use of nonconsensus standards and how H.R.
5554 will hopefully improve that practice.
______
Mr. Owens. Thank you, Mr. Chairman.
Mr. Chairman, since taking office, the Bush administration
has seriously undermined enforcement of the Occupational Safety
and Health Act of 1970, placing them at odds with an American
public that overwhelmingly supports efforts to strengthen
safety and health in the workplace. In 2004, for example, the
Wall Street Journal published a poll in which close to eight
out of every ten respondents said they wanted Congress to focus
on ways to ensure greater on-the-job safety protection and
health.
To date, this administration and this Congress have failed
to address the American people's strong desire for more
safeguards in the workplace. In fact, the Occupational Safety
and Health Administration has been relaxing worker safety rules
and enforcement, as opposed to strengthening them. Unlike
Presidents Reagan, Bush I, and Clinton, for example, the
current President Bush's political appointees at OSHA failed to
issue a single significant safety standard during his first 4
years in office.
From 2001 through 2004, OSHA also withdrew 24 rules
designed to safeguard workers from the processing of reactive
and potentially explosive chemicals, exposure to the highly
toxic metalworking fluids, industry standards in oil and gas
drilling services, hazardous energy and construction, and
scaffolding collapses in construction work, among others.
At the same time, the current Bush administration has
chosen to delay indefinitely the release of other important
OSHA rules. One such rule placed in limbo by OSHA is a proposal
to clarify that employers must not only provide all workers
with appropriate personal protective equipment, PPE, but also
pay for it. This clarification was proposed by the Clinton
Administration and scheduled for completion in the fall of
2000.
In the spring of 2001, however, the Bush administration
changed course and reclassified the rule as a ``long-term
project.'' Next, OSHA reopened public comments on the rule,
inviting discussion of whether PPE is a tool of the trade. If
PPE is deemed a tool of the trade, workers would then be solely
responsible for paying all associated costs. This is especially
problematic for lower-wage immigrants and guestworkers.
A recent investigative series in the Sacramento Bee
documented worker deaths and such serious bodily injuries as
blindness and paralysis due to the lack of protective goggles,
boots and gloves among Pineros or forest workers on H(2)(b)
visas in our national forests. I ask unanimous consent that
this series of articles entitled ``The Pineros: Forest Workers
Caught in a Web of Exploitation,'' be placed into the record.
Chairman Norwood. So ordered.*
---------------------------------------------------------------------------
*Submitted and placed in the permanent archive file, Tom Knudson
and Hector Amezcua, ``The Pineros: Forest Workers Caught in a Web of
Exploitation,'' the Sacramento Bee, 13-15 November 2005, Metro Final
Edition. sec. Main News, A1.
---------------------------------------------------------------------------
Mr. Owens. I also mention on the record that the public
comment period on PPE ended well over a year ago, yet OSHA
still persists in postponing its final release.
Another rule indefinitely delayed by OSHA would update
permissible exposure limits, PELs, and require specific
controls over silicon in mines and on constructionsites. Since
2001, OSHA has ignored recommendations by the National
Institute for Occupational Safety and Health, NIOSH, to make
exposure limits to silicon more stringent in light of its
classification as a carcinogen, and high correlation with
silicosis, a disease which results in the deaths of thousands
of miners and construction workers.
Since 2001, OSHA has also postponed any action on updating
exposure limits and requiring controls on such powerful
carcinogens as beryllium and ethylene dioxide.
In addition, OSHA is dragging its feet on updating
electrical safeguards, safeguarding construction workers in
confined spaces, revising respiratory protections,
strengthening fire protection in shipyards, and improving
safety standards for general industry, marine terminals, and
constructionsites, among others.
The fact that OSHA has become less attentive to worker
safety and more focused on special corporate interests has not
gone unnoticed in the press. Mr. Chairman, I ask unanimous
consent that a Washington Post article entitled ``Bush Forces a
Shift in Regulatory Thrust, OSHA Made More Business-Friendly,''
be included in the record in its entirety.
Chairman Norwood. So ordered.
[The information referred to follows:]
[From the Washington Post, August 15, 2004]
Bush Forces a Shift In Regulatory Thrust;
OSHA Made More Business-Friendly
By Amy Goldstein and Sarah Cohen,
Washington Post Staff Writers
First of three articles
Tuberculosis had sneaked up again, reappearing with alarming
frequency across the United States. The government began writing rules
to protect 5 million people whose jobs put them in special danger.
Hospitals and homeless shelters, prisons and drug treatment centers--
all would be required to test their employees for TB, hand out
breathing masks and quarantine those with the disease. These steps, the
Occupational Safety and Health Administration predicted, could prevent
25,000 infections a year and 135 deaths.
By the time President Bush moved into the White House, the
tuberculosis rules, first envisioned in 1993, were nearly complete. But
the new administration did nothing on the issue for the next three
years.
Then, on the last day of 2003, in an action so obscure it was not
mentioned in any major newspaper in the country, the administration
canceled the rules. Voluntary measures, federal officials said, were
effective enough to make regulation unnecessary.
The demise of the decade-old plan of defense against tuberculosis
reflects the way OSHA has altered its regulatory mission to embrace a
more business-friendly posture. In the past 31/2 years, OSHA, the
branch of the Labor Department in charge of workers' well-being, has
eliminated nearly five times as many pending standards as it has
completed. It has not started any major new health or safety rules,
setting Bush apart from the previous three presidents, including Ronald
Reagan.
The changes within OSHA since George W. Bush took office illustrate
the way that this administration has used the regulatory process to
redirect the course of government.
To examine this process, The Washington Post explored the Bush
administration's approach to regulation from three perspectives. This
article about OSHA traces the impact on one regulatory agency.
Tomorrow's story will look at a lobbyist's 32-line, last-minute
addition to a bill that created a tool for attacking the science used
to support new regulations. Tuesday's article will document a one-word
change in a regulation that allowed coal companies to accelerate
efforts to strip away the tops of thousands of Appalachian mountains.
The Post also analyzed a database from the Office of Management and
Budget containing the 38,000 regulatory actions considered by agencies
over the past two decades.
The analysis, combined with the more detailed look at specific
regulatory decisions, shows how an administration can employ this
subtle aspect of presidential power to implement far-reaching policy
changes. Most of the decisions are made without the public attention
that accompanies congressional debate. Under Bush, these decisions have
spanned logging in national forests, patients' rights in government
health insurance programs, tests for tainted packaged meats, Indian
land transactions and grants to religious charities.
All presidents have written or eliminated regulations to further
their agendas. What is distinctive about Bush is that he quickly
imposed a culture intended to put his anti-regulatory stamp on
government.
Unlike his two predecessors, Bush has canceled more of the
unfinished regulatory work he inherited than he has completed,
according to The Post's analysis. He has also begun fewer new rules
than either President Bill Clinton or President George H.W. Bush during
the same period of their presidencies. Since the younger Bush took
office, federal agencies have begun roughly one-quarter fewer rules
than Clinton and 13 percent fewer than Bush's father during comparable
periods.
President Bush's closest advisers and sharpest critics agree that
the shift in regulatory climate since he took office in January 2001
has been profound. But they disagree over whether that shift represents
a harmful turn away from federal protections to benefit business or a
useful streamlining of costly government rules.
Sally Katzen, who oversaw all federal regulation for five years
under Clinton as deputy budget director for information and regulatory
affairs, said new regulations were, in those days, embraced as a means
to improve the quality of water, of air--in short, of people's lives.
``Bush, or at least the people around him, are skeptical, if not
hostile to that notion,'' she said.
John D. Graham, who holds the same job in the Bush White House,
said regulations are ``a form of unfunded mandate that the federal
government imposes on the private sector or on state or local
governments.'' A president, he said, should not be judged solely by the
number of regulations he starts or cancels.
This White House, Graham said, has initiated regulations when the
benefits clearly outweigh the costs--for example, a decision last year
that eventually will require labeling of trans fatty acids in food.
``We've just been much more selective about expensive new regulatory
requirements than previous administrations have been,'' he said.
At OSHA, the administration's regulatory philosophy has translated
into a smaller staff to develop new standards, less reliance on the
views of organized labor and an enlarged role for businesses.
As Bush set out in 2001 to recast the government along more
conservative lines, workplace standards seemed an unlikely focus.
During his transition period, the new president did not assign anyone
to assess OSHA; the transition ``team'' for the entire Labor Department
consisted of one longtime congressional aide.
A relatively small part of the department for three decades, OSHA
has the large mission of sifting through research on potential hazards
to workers and deciding when the government should step in. It writes
federal standards, conducts inspections to determine whether employers
follow them and metes out punishment when they do not.
Bush offered the job of running OSHA to a career-long industrial
hygienist from St. Louis who was a virtual stranger to Washington.
John L. Henshaw had worked for two decades at Monsanto Co., a giant
manufacturer of agricultural chemicals. Most recently, he had been the
director of environment, safety and health at Astaris LLC, another
chemical company.
Even though he had come from industry, Henshaw was viewed by the
administration's critics as a more palatable choice than they had
expected. ``He's a competent, well-regarded safety and health
professional,'' Peg Seminario, the longtime occupational safety and
health director of the AFL-CIO, the umbrella labor organization, said
at the time. ``Well qualified for this important responsibility,'' Sen.
Edward M. Kennedy (D-Mass.), then chairman of the labor panel, said
when Henshaw was approved unanimously by the committee on Aug. 3, 2001,
and immediately confirmed without debate.
During his first days in Washington, Henshaw made it clear that he
would carry out a directive from Labor Secretary Elaine L. Chao
instructing the entire department to comb through the regulatory work
Clinton's aides had left unfinished and find items to eliminate. Chao
explained the order in a letter in 2001 to John J. Sweeney, the AFL-CIO
president. The list of incomplete work left over from the Clinton days,
she wrote, ``had swollen to unmanageable size, containing many items
that had been moribund for years, making it an inaccurate and
effectively useless document.''
Chao's order was in keeping with the new White House philosophy.
The day Bush was sworn in, his chief of staff, Andrew H. Card Jr.,
issued a memo that, in an unprecedented move, put a two-month freeze on
final rules across the government that had not yet gone into effect.
The new administration wanted time to decide whether to change or
reverse them.
A few months later, Graham, the White House's top regulatory
official, was alerting agencies that they would face closer scrutiny
from the OMB when they proposed new rules. The day after he was
confirmed by the Senate, he sent the first of 14 letters to agencies
saying they had failed to prove the need for regulations they had
proposed. That was more than had been sent during Clinton's eight
years.
The most dramatic symbol of the new regulatory climate arose from a
joint action by Bush and Congress.
Two months after he took office, a Republican Congress, making
first use of a recent power to review regulations, repealed the biggest
worker-safety standard of the Clinton years. The standard was a set of
rules that created broad safeguards against ergonomic injuries. Without
Bush's signature, the repeal could not have taken effect.
The death of the ergonomics standard, Democrats and Republicans now
agree, exposed a weakness of Clinton's regulatory strategy at OSHA in
his last few years--putting so much emphasis on that standard that
others were left unfinished.
The agency had concentrated nearly all its energy and political
capital on the effort to protect workers against musculo-skeletal
injuries, such as repetitive-stress injuries and carpal tunnel
syndrome. The rules would have required employers to redesign
workplaces if they were hazardous and compensate people who became
disabled. The Clinton administration believed the standard, covering
more than 6 million work sites at an estimated cost of $4.5 billion for
employers, was the biggest step the government could take to protect
the greatest number of employees.
As a result, OSHA left other major proposals, including the
tuberculosis rules, unfinished--and thus easier to cancel. Those
dangling rules, combined with the sudden end of the ergonomics
standard, emboldened Bush's corporate allies to fight new rules from
OSHA--and the expense they could entail.
``In the past, the business community worked to develop regulations
that were acceptable,'' said Patrick R. Tyson, an Atlanta lawyer
representing corporations in occupational safety matters who held
senior positions at OSHA in the 1970s and '80s. ``But now the game has
changed, and the business community feels like they can kill any
regulation they want.''
The new administration began by trying to cut staff and money at
OSHA. In his first year in office, Bush wanted to eliminate nearly 100
of the agency's 2,400 jobs. His budget also would have reduced funding
for the standards-setting part of the agency by $1.2 million, or 8
percent. Lawmakers restored the money and the positions.
The next year, the administration succeeded in eliminating 10 jobs
out of 95 in the standards area, when Henshaw merged divisions dealing
with health and safety. The merger, Henshaw said, eliminated
duplicative jobs in middle management. But it angered some current and
former OSHA employees, who said it cost the agency some of its
expertise.
``I finally couldn't take it anymore,'' said Peter Infante, who
retired after 24 years at OSHA as the senior epidemiologist who helped
to develop health standards. He had planned to stay long enough to
finish years of work on rules to protect workers from beryllium, a
metal that can cause cancer if inhaled in minute amounts. Instead, he
left in May 2002, saying that the only U.S. company that mines and
processes beryllium ore had gained too much influence inside the
agency.
Henshaw said in an interview that the bottom line for OSHA is not
how many rules it produces but how many people get hurt, sick or killed
at work under its watch. He said trends are improving. Henshaw said he
is proud that the agency has increased federal inspections of
workplaces.
The overall number of inspections has increased under Bush, but the
typical inspection takes less time, and fewer are in response to
accidents or complaints. OSHA officials say they are more trusting now
of industries with good safety records, while putting greater emphasis
on those--such as construction--where workers are most prone to injury.
Union leaders said that inflates an appearance of vigilance, because
OSHA counts each subcontractor at a construction site as a separate
inspection.
With its current staff, Henshaw said, OSHA can visit about 2
percent of the nation's workplaces each year. Given those limits, he
said, it has made sense to strengthen the agency's relationships with
businesses, encouraging voluntary compliance.
To do so, OSHA has created a new kind of voluntary program,
intended to foster ``trusting, cooperative relationships'' between the
government and groups of industries and professional societies,
according to an agency fact sheet. These new alliances, as they are
known, depart from a central tradition throughout the agency's history:
They are allowed to exclude labor unions. Of the 57 national alliances
OSHA has formed, with groups ranging from air conditioning contractors
to shipyard owners, just one--intended to promote safe work habits in
road construction zones--includes a union representative.
Agency officials say that more than 500 other, older voluntary
projects run by OSHA still involve unions. As for the new alliances,
one OSHA administrator, speaking on the condition of anonymity, said
that some employers might be too uncomfortable to participate if unions
were there.
In November 2002, OSHA announced an alliance with 13 airlines and
the National Safety Council to find better ways to prevent workers who
handle baggage from being injured. The OSHA alliance excluded airline
unions, which had asked to take part.
``It is simply illogical and insulting,'' Sonny Hall, president of
the AFL-CIO's transportation trades department, said at the time,
``when the powers that be in this administration's OSHA sat down to
form a private-sector group to reduce injuries to airline workers that
they chose to exclude, of all people, airline workers.''
At the same time, Henshaw was carrying out Chao's orders. Echoing
his superiors at the Labor Department and in the White House, Henshaw
said the Clinton administration had left too much unfinished regulatory
work at the agency. OSHA, Henshaw repeatedly said, needed to convert
its agenda from a ``wish list'' to a ``to-do list.''
The data analyzed by The Post show that Clinton left behind 44
incomplete rules at OSHA, just four more than when Bush's father had
moved out of the White House eight years earlier. ``I don't recall
things being added just because somebody asked for them,'' said Katzen,
who had been the top official for regulations in the Clinton White
House.
Henshaw's housecleaning produced dramatic effects. By the end of
Bush's first year in office, OSHA had eliminated 18 of the 44 rules. By
the end of 2003, six more, including the tuberculosis protections, were
gone.
``Every one of the items on there had some merit. Nobody is
disputing that,'' Henshaw said of the proposals he removed. ``But there
is only so much you can do.''
Many of the cases involved complex arguments pitting the interests
of workers against those of their employers.
In August 2001, the same month Henshaw was confirmed, the agency
stopped efforts to regulate chemicals used in making semiconductors and
suspected of causing miscarriages in workers. The agency's written
explanation at the time consisted of one sentence: ``OSHA is
withdrawing this entry from the agenda at this time due to resource
constraints and other priorities.''
A month after the semiconductor decision, OSHA eliminated a
proposal, dating to the Reagan administration, that would have updated
lists of the amounts of industrial chemicals to which workers could be
exposed. The new administration said it made more sense to regulate
each substance one at a time, a slower process.
That December, the agency killed a proposal on indoor air quality
intended to prevent restaurant and other workers from exposure to
tobacco smoke or other pollutants. State and local standards, OSHA
said, had solved the problem.
Some of the canceled rules will make it more difficult for Bush's
critics to pursue regulations in the future. After Congress and Bush
killed the ergonomics rules, OSHA eliminated a proposal to compel
employers to break out ergonomic injuries when they report on worker
injuries in general.
Henshaw said at the time that such records would not help to reduce
such injuries. Seminario of the AFL-CIO said that, without such
records, advocates of ergonomic protections have less ability to
document that federal safeguards are needed.
With his focus largely on coaching employers to follow existing
rules, Henshaw said, ``writing another standard is not going to help
with that.'' Still, he said, the agency has continued to write new
rules when they are needed.
At OSHA, The Post's analysis found, the rules the agency has
proposed are narrower than most of those it has eliminated. Thirteen of
the 24 proposals it has canceled since Bush took office fall into a
category the government classifies as ``economically significant,''
meaning they would cost or save the economy at least $100 million. None
of the 16 standards OSHA has proposed during that time falls in that
group.
Graham said it does not make sense for OSHA to overreach. From his
days as a Harvard professor, Graham said, he knew of research
suggesting that neither the health nor safety standards created over
OSHA's history had a clear track record of being effective. Besides, he
said, OSHA's procedures have always made it uncommonly sluggish in
churning out big rules.
Graham said OSHA has set into motion an ethic of ``smart
regulation'' that the White House has tried to instill across the
government: creating new rules only after rigorous scientific and
economic analysis proves they are warranted. Under Henshaw, he said,
OSHA has shown ``an intensely practical, down-to-earth approach to
worker health and safety, not inclined toward grandiose, unrealistic
ventures.''
In several instances where Bush's OSHA has moved a rule forward, it
has done so in a way that has benefited a specific business interest.
One case concerns the updating of a 25-year-old standard intended
to ensure that workers do not inhale hazardous substances. The update
said that employers--from factory owners to firehouses--must assess
hazards, select appropriate safety masks, train workers to use them and
periodically check to see whether they fit.
After the Clinton administration finished the standard in 1998,
however, a critical question lingered: What safety rating should the
agency assign to the different types of masks? Those ratings, which
would tell how effective a given mask was at removing contaminants from
the air, would cover everything in the category--elaborate respirators
as well as inexpensive paper masks sold at any hardware store.
The stakes were huge for workers and the companies that make the
masks: Some type of respiratory protection is used in more than 600,000
workplaces, one in every 10 nationwide, a recent federal survey found.
And no corporation had a larger stake in the decision than 3M Co.,
which pioneered disposable dust masks in the early 1970s and is their
largest manufacturer.
3M and other companies said the disposable version deserved the
same rating as the more sophisticated respirators, a decision that
would increase sales of the disposable masks and provide a buffer
against a growing volume of lawsuits over their effectiveness.
Last winter, OSHA held a hearing on this question. An expert
witness hired by the government testified that the disposable masks
were as effective as the more elaborate ones, as long as they were
checked periodically to ensure they fit properly.
The witness, Warren R. Myers, mentioned in explaining his
qualifications that he was an associate dean at West Virginia
University's college of engineering and mineral resources and that he
had worked for a dozen years testing respirators at a branch of the
federal Centers for Control and Prevention. He did not mention that he
had worked previously as a consultant to 3M.
Another witness took a different view. Richard W. Metzler, who
works for the National Institute for Occupational Safety and Health in
Pittsburgh, testified that researchers have not evaluated most of the
disposable mask models sold today. ``There has been a lack of
science,'' Metzler, who directs NIOSH's National Personal Protective
Technology Laboratory, said in an interview.
Opposition to 3M's position also came from an industrial scientist
named James S. Johnson at the Lawrence Livermore National Laboratory in
California. He is the chairman of an American National Standards
Institutes (ANSI) committee. His views were particularly important. By
law, OSHA is supposed to coordinate its standards with ANSI committees.
Johnson testified that the committee had concluded that the dust masks
deserved a lower rating--half that of the more elaborate respirators.
Faced with such mixed testimony, 3M took action.
This February, Tyson, the Atlanta lawyer and former OSHA official,
filed a motion on behalf of the company with the Labor Department's
administrative law judge. The motion asked the agency to disregard the
ANSI committee's conclusions on the grounds that they were in draft
form and ``currently under appeal.''
The reason they were under appeal: 3M and two of the company's
allies had challenged ANSI's conclusions just a month earlier.
The company ``was screaming bloody murder,'' said Mark Nicas of the
University of California at Berkeley, who had been given three
contracts by OSHA during the 1990s to advise the government on
respiratory issues. ``It just doesn't want to upset the market share.''
In April, the administrative law judge rejected Tyson's motion,
saying that OSHA was free to make its own judgments about the
conflicting testimony. Still, when OSHA publicly proposed its rating
scale in June, it called for all masks, including disposable ones, to
get the same ranking, just as 3M wanted.
The 3M gambit had apparently worked: The OSHA official who spoke on
the condition of anonymity said the agency could not take Johnson's
testimony or the ANSI committee's conclusions into account because it
is allowed to consider only final recommendations.
The agency did not want to wait for the outcome of the ANSI
appeal--even though 3M was using it to hold up the process--because,
the official said, that dispute may take ``forever.''
``We can't be hamstrung that way,'' the official said.
As OSHA has recalibrated worker protections, one word can make a
big difference. This summer, OSHA has thrown open the question of what
``provide'' means.
That question is heir to a dispute that began in 1994, when the
agency issued rules on safety equipment in dangerous jobs. The rules
say an employer must determine what kind of equipment a worker needs--
hard hats, protective gloves and clothing, safety goggles--and provide
it to the employee.
The regulation, however, does not specify who pays for the
equipment--or whether the employer can, as industry has argued, deduct
the cost from the worker's wages. A year later, OSHA said that
``provide'' means ``pay for.'' Industry groups appealed that
definition. Eventually, OSHA's review commission decided employers
could not be made to pay without a new rule.
In 1998, a federal study found that workers in low-paying jobs more
often were being charged for their safety equipment. The practice was
most prevalent in the construction trades, where just slightly more
than half of employers were picking up the full expense of hard hats
and welding goggles.
The following year, OSHA proposed a rule to make clear that
``provide'' meant ``pay for.''
That rule was one of many that were not quite final when Bush took
office. Last year, after two years of OSHA inaction, a coalition of
nine unions petitioned Chao demanding that the rule be issued within
two months.
That did not happen. Instead, Henshaw announced in July that OSHA
wanted to rethink part of the issue--particularly for equipment that
employees can take from job to job--and asked for new outside comments.
And that was how a rule headed for approval under Clinton became open
to further delay and uncertainty.
Agency officials speaking on the condition of anonymity said that,
in the end, the government might keep the proposed rule--or it might
decide that employers do not need to pay for certain kinds of safety
equipment. Or for any at all.
Asking for more outside opinions was the same step OSHA officials
had taken before they canceled the tuberculosis protections the day
before New Year's.
The evidence on the TB standard is mixed.
Government record-keeping is so sketchy it is impossible to tell
how many workers are being infected with TB on the job. The two main
unions that have lobbied for the protections since the beginning, the
American Federation of State, County and Municipal Employees and the
American Federation of Teachers, were unable to provide a single
example of someone who could talk on the record about having caught TB.
Given the murkiness, the outside opinions that prevailed came from
the American Hospital Association and other groups that had long
resented the idea of OSHA enforcing safety practices. Opponents said
government no longer needs the requirement for tuberculosis tests,
patient quarantines and the other protections in the standard.
The disease had waned in most states in the decade since OSHA began
developing the TB standard, the critics argued. Besides, they said, the
Centers for Disease Control already provided voluntary guidelines for
protecting workers.
There was some support for this position in an evaluation of the
proposed standard by a respected advisory group, the Institute of
Medicine, which had been ordered to conduct the study at the behest of
congressional Republicans while Clinton was in office.
But when the study came out the month Bush took office, it
concluded that the standard still was worthwhile, even if it might not
need to cover as many workers.
In the end, OSHA cited the study in its rationale for eliminating
the TB standard.
Unions and public health officials were furious. TB rates continue
to increase in many states, they said. Even where the rates have gone
down, they said, workers in health clinics or hospitals still run into
the disease.
Nicas has conducted research on whether hospitals around San
Francisco adhere to the CDC guidelines. Even though the hospitals were
doing a better job, he found, all had lapses sometimes. A federal
regulation, he said, still is needed.
``The health care industry [does not] like being regulated by
OSHA,'' Nicas said. ``But then, that puts them in league with every
other industry.''
Immediately after winning its long battle to eliminate the TB
standard, the nation's hospitals and their allies began a new campaign.
They sought to block a rule requiring yearly checks to make sure that
the breathing masks of their workers fit correctly.
______
Mr. Owens. Regrettably, today's hearing does not focus on
OSHA's failure to issue a final PPE rule or establish standards
on such powerful carcinogens as crystalline silica and
beryllium.
Fortunately, a witness we requested, Dr. David Michaels, is
an esteemed epidemiologist at George Washington University with
expert knowledge of beryllium and its association with
occupational exposure to it. During the Clinton Administration,
Dr. Michaels served as assistant secretary of the Department of
Energy and was the chief architect of the bipartisan program
designed to compensate nuclear weapons workers who developed
cancer and lethal lung disease as a result of exposure to
beryllium radiation and other hazards.
We welcome Dr. Michaels, and we look forward to his
testimony.
In closing, Mr. Chairman, I know that we have a special
opportunity this morning to hear from the new assistant
secretary for occupational safety and health, Mr. Foulke. For
my part, I want to hear Assistant Secretary Foulke's plans for
beefing up enforcement efforts at OSHA in light of the agency's
abdication of that responsibility since 2001.
Moreover, I want to hear of his plans for ensuring that
even in the event of a future national disaster, OSHA will not
abdicate its responsibility for enforcing workplace safety
rules. Immediately after the terrorist bombings of the World
Trade Center on 9/11, for example, OSHA stated that it would
not enforce safety rules during the rescue, cleanup, and
recovery work to be carried out at Ground Zero.
As a result, today hundreds of Ground Zero workers are now
gravely ill and more than 30 have died of cancer. I ask
unanimous consent that the New York Post article entitled
``Cancer Hits 283 Rescuers of 9/11'' be included in the record.
Chairman Norwood. So ordered.
[The information referred to follows:]
[From the New York Post, June 11, 2006]
Cancer Hits 283 Rescuers of 9/11
By Susan Edelman
Since 9/11, 283 World Trade Center rescue and recovery workers have
been diagnosed with cancer, and 33 of them have died of cancer, says a
lawyer for the ailing responders.
David Worby, a lawyer for 8,000 World Trade Center responders,
including cops, firefighters, and construction workers, said the cases
include several dozen blood-cell cancers such as leukemia, lymphoma,
Hodgkin's and myeloma.
Doctors say the cancers can strike three to five years after
exposure to toxins such as benzene, a cancer-causing chemical that
permeated the WTC site from burning jet fuel.
``One in 150,000 white males under 40 would normally get the type
of acute white bloodcell cancer that strikes a healthy detective,''
said Worby, whose first client was NYPD narcotics cop John Walcott, now
41. Walcott spent months at Ground Zero and the Fresh Kills landfill.
The father of three is fighting leukemia.
``We have nearly 35 of these cancers in the family of 50,000 Ground
Zero workers. The odds of that occurring are one in hundreds of
millions,'' Worby said.
Others suffer tumors of the tongue, throat, testicles, breast,
bladder, kidney, colon, intestines, and lung, said Worby, of Worby,
Groner, Edelman, & Napoli, Bern, which filed the class-action suit.
``The incidence of testicular cancer in healthy males is about one
in 40,000. We have 14,'' Worby said.
WTC workers who have died of cancer include paramedic Deborah
Reeve, 41 (mesothelioma), NYPD officer Ronald Weintraub, 43 (bile-duct
cancer), and Stephen ``Rak'' Yurek, 46, a Port Authority emergency
technician (brain cancer). The families say they were healthy before 9/
11.
Dr. Robin Herbert, a director of WTC medical monitoring at Mount
Sinai Hospital, said some of the nearly 16,000 responders screened to
date are getting cancer.
``We do not know at this point if they are WTC-related, but some
are unusual cancers we see as red flags,'' Herbert said.
Dr. Iris Udasin, principal investigator for the Mount Sinai
screening of 500 in New Jersey, said she's following four cancers and a
possible pre-cancer. The 9/11 link is ``certainly a possibility,'' she
said. ``It's what we worry about, and what we fear.'' Dr. Ben Luft,
chief of Mount Sinai monitoring at Stony Brook University, said his
cases include a young non-smoker with throat cancer, and one with a
pre-cancerous lesion.
``We're concerned about people coming in with problems, and they
just don't have any risk factors at all,'' Luft said.
While tumors normally take 10 to 20 years to develop, Worby
contends the asbestos, PCBs, and other cancer-causing chemicals in the
WTC rubble created unprecedented dangers. ``People are getting sicker
faster,'' he said.
Grim numbers
50,000 WTC rescue and recovery workers
8,000 plaintiffs in classaction lawsuit
283 reported cancer cases
33 cancer deaths
100 NYPD cancer patients
45 FDNY cancer patients
______
Mr. Owens. I look forward to hearing the testimony of Mr.
Foulke and the other witnesses.
Thank you.
Chairman Norwood. Thank you, Mr. Owens.
I see we are honored to have Chairman McKeon here. Mr.
Chairman, would you care to have some time? Thank you for being
here with us.
We have two panels of distinguished witnesses today, and I
am eager to hear their testimony. I would like to begin by
introducing our first witness. The Honorable Edwin Foulke is
the assistant secretary of occupational safety and health at
the Department of Labor. Mr. Foulke was sworn in as OSHA's
administrator in April 2006. He has been with us just a short
time.
Mr. Foulke has previously served on the Occupational Safety
and Health Review Commission, most recently serving as its
chairman from 1990 to 1994. Prior to joining OSHA, Mr. Foulke
was a partner with the law firm of Jackson Lewis, LLP, in
Greenville, South Carolina, and Washington, D.C., where he
chaired the firm's OSHA practice group. Mr. Foulke holds a law
degree from Loyola University and a master of law degree from
Georgetown University Law School.
I would like to remind members that we will be asking
questions of the witnesses after the testimony. In addition,
committee rule two imposes a 5-minute limit on questions.
Mr. Secretary, you are now recognized.
STATEMENT OF HON. EDWIN FOULKE, JR., ASSISTANT SECRETARY OF
LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR
Mr. Foulke. Thank you, Mr. Chairman and members of the
subcommittee. I would first like to request that a copy of my
full testimony be entered into the record.
Chairman Norwood. So ordered.
Mr. Foulke. Thank you.
Thank you for the opportunity to appear before you today. I
have enjoyed meeting with you last month, Mr. Chairman, and
welcome this further opportunity to continue the dialog
exploring ways to improve the process in which the Occupational
Safety and Health Administration considers the use of standards
set by outside organizations when it promulgates its rules and
regulations.
I am aware that you have had a long-term interest in this
issue, and I appreciate the work that you are doing. I want you
to know that I share your goals of providing parties affected
by standards and regulations the opportunity of meaningful
input, avoiding conflicts of interest by those writing the
rules, and ensuring the quality of the information that OSHA
requires manufacturers and employers to disseminate.
You may rest assured that we are interested in finding ways
to incorporate the same transparency into the process for
determining what information must be included in MSDS's and
ensuring that process allows for diverse views to be
considered. OSHA shares your interest in encouraging wide
public participation from all interested parties in the
rulemaking process.
OSHA also offers small businesses a unique opportunity to
provide meaningful input through the small business regulatory
review panels, as mandated by Congress. OSHA regularly convenes
these panels for major rulemakings, which allows affected small
businesses to offer input and make recommendations on
regulatory alternatives early in the rulemaking process.
OSHA also is beginning a peer review of the risk assessment
and health effects analysis developed for silica rulemaking in
accordance with the requirements of OMB's information and
quality bulletin for peer review. This peer review process will
provide the public an additional comment opportunity, including
a public meeting, before a proposed rule is published.
I acknowledge your concern regarding the use of TLVs in
OSHA's hazard communications standard, and I have asked my
staff to examine options to address the issues you have raised
in addition to ways to increase the effectiveness and utility
of the standard. Mr. Chairman, I assure you that on this issue
and other issues, I favor a transparent process that is based
on sound science.
In addition, I fully intend to work with you as we address
this issue. OSHA supports your efforts to seek diverse views on
information utilizing the rulemaking process, including those
of other appropriate Federal agencies as expressed in subpart
two and three of the newly proposed section 6(a) of H.R. 5554.
The bill, however, could have the result of prohibiting
OSHA from using many important sources of information,
including standards, findings, reports, papers, treatises and
recommendations issued by industry, trade or employee
representative groups and academic institution when drafting
rules and issuing voluntary guidance documents.
Specifically, section 2(a) of the proposed bill would
prohibit the secretary of labor from promulgating any findings,
guidelines, standards, limits, rules or regulations based on
the determination reached by any organization unless the
secretary finds the organization that issued the determination
is a national consensus organization.
In developing guidelines and rules, however, OSHA regularly
relies on determinations made by a variety of organizations,
including industry and labor organizations, private
professional associations, academic institutions, and
scientific research groups.
For example, supposedly a study about a safety health issue
was conducted by a group of researchers at a university, maybe
from the fine University of Georgia, and the results, which
contained one or more scientific determinations, were published
in the Peer Review Journal.
Even if the study determinations were submitted to OSHA as
part of a formal notice and rulemaking comment process, this
bill most likely would prohibit OSHA from relying on that
information in promulgating that standard.
In conclusion, I would like to reiterate that I share your
view on the importance of transparency in the regulatory
process. I strongly believe that the notice and comment
rulemaking process OSHA utilizes is a model of openness and it
includes full public participation.
I also share your goal of ensuring the quality of
information that OSHA requires manufacturers and employers to
disseminate, and pledge to work diligently to explore options
to bring the same transparency to bear on the process by which
OSHA determines on what hazard information must be transmitted
to employers and to the American workers.
I appreciate the work that you have done over the many
years on this subject, and I look forward to working with you
in the future on this issue and on other safety and health
issues. I will be happy to answer any questions that the
committee has.
[The prepared statement of Mr. Foulke follows:]
Prepared Statement of Edwin G. Foulke, Jr., Assistant Secretary of
Labor for Occupational Safety and Health
Mr. Chairman, Members of the Subcommittee: Thank you for the
opportunity to appear before you today. I enjoyed meeting with you last
month, Mr. Chairman, and welcome this further opportunity to continue a
dialog exploring ways to improve the process by which the Occupational
Safety and Health Administration (OSHA) considers the use of standards
set by outside organizations when promulgating guidance or rules. In
particular, I would like to discuss OSHA's method for determining which
information is required to be included in its material safety data
sheets (MSDSs), and your interest in making the development of safety
and health recommendations more transparent.
I am aware that you have had a long-term interest in this issue and
I appreciate the work you are doing. I want you to know that I share
your goals of providing parties affected by standards and regulations
the opportunity for meaningful input, avoiding conflicts of interest by
those writing the rules, and ensuring the quality of information that
OSHA requires manufacturers and employers to disseminate. Before
addressing the legislation you recently introduced, the Workplace
Safety and Health Transparency Act (H.R. 5554), I want to outline the
already transparent rulemaking process that OSHA currently employs. You
may rest assured that we are interested in finding ways to incorporate
that same transparency into the process for determining what
information must be included in MSDSs and ensuring that the process
allows for diverse views to be considered.
OSHA has a transparent rulemaking process that seeks diverse views
through a variety of means
OSHA shares your interest in encouraging wide public participation
from all interested parties in its rulemaking process. OSHA seeks
meaningful input through a variety of means, including written and
electronic comments, public hearings--when requested--that allow
participants the opportunity to present information and question other
participants on the record, and an open public rulemaking record. Any
final regulation or standard that OSHA issues at the conclusion of
these processes has to be based on substantial evidence in the record.
Additionally, the Agency publishes final regulations in the Federal
Register with an explanation of its requirements.
OSHA also offers small business a unique opportunity to provide
meaningful input through Small Business Regulatory Review Panels, as
mandated by Congress. OSHA regularly convenes these Panels for its
major rulemakings, which allow affected small businesses to offer input
and make recommendations on regulatory alternatives early in the
rulemaking process. The Panels conclude with a report on the
suggestions offered by the small-entity representatives, which is
submitted to the official rulemaking record on which regulations must
be based.
OSHA is also beginning a peer review of the risk assessment and
health effects analyses developed for the silica rulemaking in
accordance with the requirements of OMB's Information Quality Bulletin
for Peer Review. The peer review process will provide the public with
an additional comment opportunity, including a public meeting, before a
proposed rule is published. OSHA seeks input through a variety of means
and sources to produce the most effective standards, from both a health
and safety and feasibility perspective.
I would also like to point out the great strides OSHA has taken to
implement a public-friendly rulemaking docket system, so that the
public can access important information from the Web and also submit
their own comments 24 hours a day. In addition to the resources on the
Web, OSHA also provides docket office staff to aid the public in their
search of the docket system.
OSHA relies upon numerous sources of data to promulgate the most
effective standards and guidance possible
After 35 years of serving the public, OSHA recognizes the
unquestioned importance of data, research, and all forms of information
to support its congressionally mandated mission ``to assure safe and
healthful working conditions for working men and women.'' OSHA seeks
data, used in its broadest meaning, from all sources, including
governmental organizations, academic institutions, associations,
employers, and individuals. Accurate information serves as the
foundation for the development and issuance of effective occupational
safety and health standards and guidance materials. In addition, when
promulgating health standards, OSHA is required under the OSH Act to
consider the best and latest available scientific data.
Since my arrival at the Agency a little over two months ago, Mr.
Chairman, I have come to understand that one source of safety and
health information is of particular interest to you--the American
Conference of Government Industrial Hygienists' (ACGIH) Threshold Limit
Values (TLVs). I believe you are particularly interested in the way
that TLVs are used in OSHA's Hazard Communication Standard (HCS).
OSHA's Hazard Communication Standard and its use of ACGIH's TLVs
As you know, OSHA's Hazard Communication Standard (29 C.F.R. Sec.
1910.1200) sets forth a comprehensive system for the evaluation of
chemical hazards and the transmission of information about those
hazards to employers and employees. Its intent is two-fold: to give
employers, in one document, the information they need to provide
appropriate protections to their employees; and to provide workers with
information about the identities and hazards of the chemicals in their
workplaces. The provisions referring to the TLVs govern hazard
determination and material safety data sheets (MSDSs). Briefly, the
Standard requires chemical manufacturers and importers to evaluate the
scientific evidence relating to the hazards of each chemical they
manufacture or import. If sufficient scientific evidence exists to
establish that the chemical is a hazard under the Standard, the
manufacturer or importer must, among other things, prepare an MSDS
containing information about the chemical and its hazards, and provide
the MSDS to employers who purchase the chemical. Employers use the
MSDSs in designing their own hazard communications programs to ensure
that employees receive information about the chemical hazards to which
they are exposed, as well as in developing ways to protect their
employees from such hazards. The Hazard Communication Standard,
however, does not establish exposures limits, nor are any limits
enforced by the Agency as a result of the standard.
A chemical is a health hazard by definition under the Hazard
Communication Standard if there is ``statistically significant evidence
based on at least one study conducted in accordance with established
scientific principles that acute or chronic health effects may occur in
exposed employees.'' The Standard as currently written states that the
existence of an OSHA Permissible Exposure Limit (PEL) or an ACGIH TLV
for a chemical establishes that the chemical is ``hazardous.'' A
determination that a chemical is hazardous triggers the other
provisions of the Standard, including labels, MSDSs, and provision of
information to employees. In addition, an MSDS must list any TLV, as
well as any OSHA PEL ``and any other exposure limit used or recommended
by the chemical manufacturer, importer, or employer preparing the
[MSDS].'' Nothing in the regulation requires employers to comply with
the exposure levels noted in the MSDS. OSHA believes it more efficient
to have the preparer of the MSDS provide complete information about the
chemical and precautionary measures than to have to independently
research and seek out disparate sources of information to determine how
to manage exposures appropriately.
In response to several issues raised in your past letters, I assure
you that OSHA does not enforce TLVs developed by ACGIH under the
General Duty Clause of the OSH Act or under any individual standard
that provides generally worded safety and health mandates. In January
2003, the Agency issued a memorandum clarifying that occupational
exposure recommendations such as ACGIH's TLVs are not to be treated as
OSHA-mandated Permissible Exposure Limits for enforcement purposes.
TLVs and other non-mandatory exposure recommendations are not to be
enforced, in and of themselves, by government action. We are reviewing
options to take further steps in this regard including the possibility
of reissuing the 2003 memorandum.
OSHA is working to address congressional concerns
I acknowledge your concerns regarding the use of ACGIH TLVs in the
Hazard Communication Standard and have asked my staff to examine
options to address the issues you have raised, in addition to ways to
increase the effectiveness and utility of the Standard. For instance,
we are examining whether it is appropriate to accord any specific
organizations, such as ACGIH, a preeminent position in the hazard
determination provisions of the Standard. We are also evaluating ways
to ensure that information that is required to be included in MSDSs is
developed through a transparent process that allows for the
consideration of diverse views and ensures the quality of the
information produced. Mr. Chairman, I assure you that on this issue and
other issues, I favor a transparent process that is based on sound
science. Additionally, I fully intend to work with you as we address
this issue.
OSHA's comments on H.R. 5554
OSHA supports your efforts to seek diverse views on the information
utilized in the rulemaking process, including those of other
appropriate federal agencies, as expressed in Subparts 2 and 3 of the
newly proposed Section 6A(a) included in Section 2(a) of H.R. 5554. The
bill, however, could have the result of prohibiting OSHA from using
many important sources of information--including standards, findings,
reports, papers, treaties and recommendations, issued by industry,
trade, or employee representative groups, and academic institutions--
when drafting rules and issuing voluntary guidance documents.
Specifically, section 2(a) of the proposed bill would prohibit the
Secretary of Labor from promulgating ``any finding, guideline,
standard, limit, rule, or regulation based on a determination reached
by any organization,'' unless the Secretary finds that the organization
that issued the determination is a national consensus organization. In
developing guidelines and rules, however, OSHA regularly relies on
determinations made by a variety of organizations, including industry
and labor organizations, private professional associations, academic
institutions, and scientific research groups.
In addition, as I previously mentioned, under the OSH Act, OSHA is
required to consider the best and latest available scientific data when
promulgating health standards. Limiting OSHA's consideration of
information to only consensus group material would inhibit the agency's
consideration of meaningful and relevant information from stakeholders,
experts, and informed parties that contributes to informed rulemaking.
Scientific studies, manufacturers' guidelines, and trade association
best practices are all important sources of information for OSHA--
information we use to improve employee safety and health. Critically
important and useful information would be unusable to OSHA if the bill
was passed in its present form.
For example, suppose a study about a safety or health issue was
conducted by a group of researchers at a university, such as the
University of Georgia, and the results, which contained one or more
scientific determinations, were published in a peer-reviewed journal.
Even if the study's determinations were submitted to OSHA as part of a
formal notice-and-comment rulemaking process, this bill would likely
prohibit OSHA from relying on that information in promulgating a
standard. The bill's provisions might also jeopardize the collaborative
efforts of OSHA's successful cooperative programs, such as Alliances,
where employers and OSHA work together to produce industry-specific
guidance and compliance assistance materials.
Another Subpart of Section 2(a) of the proposed bill would add
additional requirements for ``rulemaking proceedings initiated by the
Secretary of Labor but not finalized prior to enactment of this
section.'' This section requires the Secretary to ``investigate and
identify the use of, influence of or reliance upon'' findings or
recommendations by organizations that do not operate on a consensus
basis. Under this legislation, the Secretary would have to publish the
results of the investigation in the Federal Register and not
incorporate or rely on non-consensus based organization findings or
recommendations produced by such an organization in publishing any
final standard or official recommendation.
This section seems to raise all of the same concerns as Section
2(a), potentially prohibiting OSHA from utilizing useful information
available to it, but applies those limitations to all of OSHA's ongoing
rulemakings as well. To operate effectively to protect the safety and
health of employees, OSHA needs to be able to consider all sources of
information in the early stages of rulemaking. Since the rulemaking
process is intended to attract recommendations and submissions of
information from a variety of organizations, parties, and stakeholders,
excluding the work of all non-consensus organizations would be
inconsistent with established administrative law practices and would
greatly diminish the information that OSHA is able to use. It would
also curtail the Agency's ability to hear and consider as wide a
variety of viewpoints as possible.
The bill's requirement to investigate the influence of and reliance
on information provided to OSHA by non-consensus organizations and to
publish a report in the Federal Register explaining the findings of the
investigation before it can issue final rules also raises concerns for
OSHA. Such an investigation would needlessly consume the Agency's
precious resources and substantially delay the issuance of important
rules, but would yield little information of value since OSHA is
already required to explain the nature of the information that it
relies on at the time the final standard is published. In most cases,
the final rule must also be defended in court based on the record as a
whole. With all of these checks already in place, it is not clear what
purposes would be served by such a costly and time-intensive
investigation.
Finally, the section that deals with the approval of State Plans
could very well create tensions between federal OSHA and states wishing
to adopt an occupational safety and health program. It would forbid the
agency from approving any new state plans unless OSHA determines that
any outside standards adopted by the plan were promulgated by a
nationally recognized standards-producing organization under procedures
wherein it can be determined that persons interested and affected by
the rule reached substantial agreement on adoption. This provision
establishes a criterion that varies from the criterion in section 18(c)
of the OSH Act, which directs OSHA to approve state plans that have
standards that are or will be ``as least as effective as'' the federal
rules. New state plans could be precluded from adopting some of the
same protective regulations that OSHA adopted at its inception in 1971,
because some of the rules were likely based upon information produced
by non-federal entities that may not have been substantially agreed
upon at the time by all affected parties. Although not clear,
presumably this Section would also apply to the adoption of future
standards by the 26 currently approved State Plans. The provision may
limit the States' ability to adopt federal standards by reference.
Certainly, this provision could preclude a State Plan from adopting a
more protective regulatory regime than federal law or standards--
something the OSH Act clearly contemplated permitting the states to do.
Conclusion
In conclusion, I would like to reiterate that I share your views on
the importance of transparency in the regulatory process. I strongly
believe that the notice and comment rulemaking process OSHA utilizes is
a model of openness that includes full public participation. I also
share your goal of ensuring the quality of information that OSHA
requires manufacturers and employers to disseminate, and pledge to work
diligently to explore options to bring that same transparency to bear
on the process by which OSHA determines what hazard information must be
transmitted to employers and to America's workers. I appreciate the
work you have done over many years on this subject and look forward to
working with you in the future on this and other safety and health
issues.
I will be happy to answer any questions that you may have.
______
Chairman Norwood. Thank you very much, Mr. Secretary.
I will yield myself 5 minutes for questioning to start
with.
I am not sure I agree right off the bat with your premise
that under the legislation that we are discussing today, OSHA
would be unable to rely on established best practices or
academic studies. Wouldn't these be referred to in any proposed
regulation such that stakeholders could provide feedback on
these during the comment period? That is the whole purpose,
really, of all of this.
If that is not the case, as you folks are suggesting, do
you have a suggestion on how to modify the proposed legislative
language to allow OSHA to promulgate a regulation using best
practices and academic studies, and ensure interested parties
can still review the information and comment on it during the
regulatory process?
Mr. Foulke. Mr. Chairman, I believe that our rulemaking
process allows all parties to comment on information that is
provided as a general rule during the rulemaking process. Also,
the Congress has set forth a number of different procedures
that we must follow.
The act itself actually has standard-making procedures that
we need to follow, but also the Administrative Procedures Act,
the requirements that Congress added on with SBRPA, all those
things I think were intended, and I think rightly so, by
Congress to try to make the process transparent and make sure
that all views are heard and made part of the determination,
and considered in the determination to making a rule or
standard.
Chairman Norwood. Well, thank you. I think you have it
exactly right. How does that work when you incorporate a rule
into the process? How does anybody have anything to say about
that? How does anybody have any input into that, that was
established in the middle of the night in secrecy?
Mr. Foulke. I understand the concern you have. I would say
with respect to the TLVs particularly, first of all we as an
agency do not cite employers for TLVs. We have actually
promulgated a memorandum to the regional administrators to put
out to all our area offices and all the investigators that a
violation of a TLV would not be the basis of a citation.
Chairman Norwood. With all due respect, Mr. Secretary, that
is not the problem. There are lawyers right here in this room
who use that every time to sue somebody. That is the problem.
When you incorporate by reference, nobody gets any input;
nobody gets to say anything. All of a sudden now that is in
effect the law of the land. You may not fine anybody, but
believe you me, there are people on the next panel who will
take them to court.
Mr. Foulke. I understand, Mr. Chairman, because I know we
have a number of lawsuits that we have been involved with on
this specific issue. I guess our position, OSHA's position has
always been that we included the TLVs in the hazard
communication standards strictly for informational purposes
only, and that there is no requirement that any employer meet
those TLV requirements.
Chairman Norwood. If, Mr. Secretary, you are concerned that
this legislation actually does what you say it will do, I
strongly recommend you make some suggestions on change, or
otherwise we are going to go forward with this legislation.
Mr. Foulke. As I mentioned in my opening statement, I am
here to work with you, Mr. Chairman. I also mentioned the fact
that we are looking at options at the Department of Labor, at
OSHA, on how we can address this issue internally.
Chairman Norwood. Senator Enzi has in his health committee
come up with some similar language addressing this problem,
too. So it is sort of a concern on both sides of the House.
Have you folks looked at his language, and do you have any
thoughts about that one way or the other, the Senate language
versus our language?
Mr. Foulke. To be truthful, Mr. Chairman, I have not seen
that language.
Chairman Norwood. I see my time is about up, but I really
would appreciate it if you all would look at that and take a
position----
Mr. Foulke. OK.
Chairman Norwood [continuing]. On Senator Enzi's approach
in trying to correct this problem. Everybody knows the problem
is when you incorporate by reference, it doesn't have any
sunshine on it. It is as simple as that, and that has got to
stop.
I see my time is up. I would like to recognize Major Owens
now for questioning.
Mr. Owens. Thank you, Mr. Chairman.
Mr. Secretary, we welcome your fresh insights and your
energy. I was wondering if you will be able to deal with the
fact that certain standards have been killed by OSHA and
certain other standards have been withdrawn, and certain
standards have been delayed.
I would like to submit for the record that standards that
have been killed, withdrawn or delayed.* Have you addressed
some commentary? We get no commentary at all from OSHA as to
the why, when, or what.
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*Submitted and placed in permanent archive file, ``Bush Record at
OSHA: Undermining Workplace Safety and Health.'' (Submitted for the
record by Mr. Owens).
---------------------------------------------------------------------------
There is one, ergonomics, which the administration and the
Congress combined to wipe out shortly after the president was
inaugurated. Ergonomics is like pornography, so you don't have
to address that one, but the rest of them.
Mr. Foulke. Thank you, Congressman. I appreciate that.
[Laughter.]
Mr. Owens. The rest of them maybe you can address. Are you
agreeing with the chairman, who says that in America, which is
unique for the role it allows nongovernmental organizations to
have, we have numerous nongovernmental organizations that
assume great responsibilities for accrediting institutions. The
motion pictures that our kids see are rated by some group that
is not governmental. I don't know, I think I can name many.
Are you agreeing that organizations with expertise should
not be utilized in situations where there is a vacuum? We could
keep fiddling forever and allow people to die while expertise
exists which tells us that if they follow a certain course and
don't protect themselves properly, they will surely die.
I just wondered, are we saying that those organizations
have to be characterized, as the chairman characterized them a
minute ago, as organizations operating in the dead of night? Is
there something diabolical about expertise that can be used to
save lives?
Mr. Foulke. Well, Congressman, I would say that we do favor
as much transparency, and I think that is what our government
has been founded on, and I think the particular rulemaking
procedures that we have to go through in promulgating a
standard were put there through Congress in order to be able to
achieve the goal of making sure that as many diverse types of
views could be heard in formulating the rule.
I mean, that is the purpose of rulemaking, I believe, is to
get as much information from as many diverse sources as
possible in order that we may, OSHA or any agency of the
government, will come out and have the best standard possible
to, in our particular case, protect the safety and health of
the working man and woman.
Mr. Owens. So you would agree that these organizations have
not operated in secrecy. They just have not had the formal
process that the government goes through in terms of
rulemaking?
Mr. Foulke. I am not overly familiar with respect to the
ACGIH's procedures, though I understand that with respect to
outside groups having input and information into the process,
that is not normally the case. Also, ACGIH admits that it is
not a consensus standard organization. They are not making
consensus standards.
They are basically reviewing the information and coming up
with what they call the threshold limit values, TLVs. But they
say that this is not a consensus standard. They are not a
consensus standard organization. I think that is the question
that the issue is how much weight, what type of weight should
they be entitled to when we are promulgating a standard and
reviewing the whole process.
The idea really is that we want to make sure that we have
as much diverse information as possible, and then for us under
the rulemaking procedures, we have to review that. We have to
do the analysis, the feasibility analysis, the technical and
economic feasibility on those issues in order to be able to
determine what is the best standard to come out.
Mr. Owens. Mr. Secretary, the casualty toll at the World
Trade at 9/11 is around 3,000 people who were immediately
killed and incinerated on that day. However, we have a
burgeoning situation taking place now where thousands of
workers who worked on that site, including policemen and
firemen, are now being afflicted with certain ailments which
trace back to their work on that site. I mentioned in my
opening statement some cases of cancer that have been clearly
documented and related to their work on that site.
There are some other cases that have happened that are in
dispute. A certain policeman, 40-year-old policeman, died of a
heart attack suddenly. The autopsy showed that in his lungs,
there was the stew of 9/11, asbestos and glass and a whole
mixture of dust that was unprecedented as a result of high
temperatures for new kinds of material used in buildings, that
occurred that day.
Now, OSHA sort of, and I can't find the document which says
it in writing, but said that they were not enforcing rules in
the rescue operations at 9/11. Now, be that as it may, I am not
going to question that judgment in view of the fact that it was
unprecedented, but at this point, will there be some kind of
review of the situation by OSHA?
Informally, I know from talking to some of your employees,
there is protective gear that should have been worn that day
that would have protected them, the rescue workers, from all of
that stew. But officially, are we going to ignore the situation
that is evolving in terms of large numbers of workers who are
becoming ill? The first reaction of New York City government is
no; it didn't cause it. Any government, any corporation would
react by saying no. You prove that it happened. Eventually, it
is going to be proven, it seems to me.
Are the lives of the people who are dying as a result of
their participation in the rescue any less sacred than the
lives of people who died on that day? Our government made the
great attempt to try to compensate the families of the people
who died on that day. More than $1 billion was appropriated and
utilized to compensate families with all kinds of formulas.
Are we going to just ignore the fact that those heroes who
helped with the rescue and survived, but are now dying, should
not have any help from the government, or any official review
by your agency to determine what is the likelihood that there
is some truth in the statement that their illnesses are caused
by exposure on that day?
Mr. Foulke. Well, Congressman, I will say this, that in
every talk that I give, one of the points I always make is that
one workplace fatality is one too many. Under my watch and I
think under all the previous assistant secretary watches, we
have been very much committed to protecting worker safety and
health.
What I would say is we have had post-9/11 reviews. We have
done post-Katrina reviews where we try to make the process
better than what it was before. Whenever you deal with a
tragedy on that scope, we try to also always improve.
Mr. Owens. You are having post-9/11 reviews? Or you have
had them already?
Mr. Foulke. I think the White House had a whole series of
them that we were a part of. Also, I would say that we were
actively involved at the 9/11 site. We have onsite, our
regional administrator was there and actually had their office
there.
Unfortunately, our Manhattan office was in the north World
Trade Tower, so we are very much familiar with the whole
incident. I was up there last week and actually met with the
Manhattan office and talked about it. But they were there full-
time, 24 hours, 7 days a week, trying to protect the safety and
health of the workers that were working at the Ground Zero.
One thing I would say is, we are proud of the fact that
there were no workplace fatalities at the time during the
cleanup. On a site that large, it would never have been under a
normal situation would we have expected that.
Mr. Owens. Thank you.
Mr. Chairman, I assume I will be able to submit additional
questions to Mr. Foulke in the record?
Chairman Norwood. You can go ahead now if you want to.
Mr. Owens. No, I will just submit them.
Chairman Norwood. Of course you can submit it for the
record.
Mr. Owens. I have additional questions, and I also have
some groups that would like to also submit statements for the
record. And it will be open?
Chairman Norwood. Yes.
Mr. Owens. Thank you.
Chairman Norwood. It will be.
Mr. Secretary, your testimony states that--and, Mr. Kline,
you are to be recognized. Do you decline?
Mr. Kline. I decline.
Chairman Norwood. Your testimony states that a permissible
exposure limit, what all of us refer to as PELs, the threshold
limit values, TLVs, can determine if a chemical is hazardous. I
don't misread that, do I?
Mr. Foulke. I am sorry, Congressman?
Chairman Norwood. Your testimony is implying that PELs or
TLVs can in and of itself determine if a chemical is hazardous.
I don't misread that in your testimony, do I?
Mr. Foulke. Yes, the hazard communications standard
basically states that if there has been one scientific study
that indicates that a chemical is hazardous, that that would
make the chemical be considered hazardous and thus included
under the standard.
Chairman Norwood. We have had other hearings on other days
in this committee where other witnesses have pointed out that
the scientific validity of the TLVs are questionable. Now, I am
not sure I know who is right or wrong, and I am certainly not
taking a point of view either way, but it does worry me when
other people make that point of view.
What safeguards, therefore, do you have at OSHA that are in
place to make sure that these TLVs are valid? How do we know
this?
Mr. Foulke. Mr. Chairman, with respect to the standard, the
standard when it was promulgated back in the early 1980's, or
mid-1980's, I guess it was, included as part of the
requirements for the information to be included on the material
safety data sheets that it would be the OSHA PEL, the TLVs, and
any other additional information that the manufacturer of the
chemical or the importer of the chemical thought was
appropriate.
And basically, the information data of the TLVs and any
additional information really clearly was intended to be for
informational purposes only. We are not stating, and the fact
that we don't require any enforcement of the TLV, so I can't
say that we have ever done anything with respect to reviewing
the process of it. I was not there when the standard was
promulgated that included that. I am assuming that some of that
issue was looked at at that particular time.
Chairman Norwood. You, however, have been in a law firm and
when you issue these TLVs, what basically happens out in the
real world? What happens to businesses or companies or anybody
who is dealing with a particular chemical?
Mr. Foulke. I can just give you my personal experience.
Chairman Norwood. That would be good.
Mr. Foulke. Because I dealt a great deal with the hazard
communications standard, because it is one of OSHA's more
frequently cited standards. To tell you the truth, when I would
come into a situation where OSHA was investigating
overexposure, my main concern, when I reviewed the material
safety data sheets, was to actually just look at what PELs were
there.
I knew that under my requirements for my clients, they
would have to be in compliance with the PELs. So I would say, I
would ask them, let me see your material safety data sheets. I
would look at the PELs, and then I would request them, and say
what is the exposure level; have you done air monitoring on
those particular chemicals that had PELs.
TLVs, to tell you, it was not something that I personally
had to look at because I knew from my client's standpoint, my
liability for my client was at the PEL level.
Chairman Norwood. And in conclusion, let me just again
reiterate what this is all about. You have a job. We have a
job. We are trying to make sure that our workplaces are healthy
and safe as they possibly can be. I know how seriously you take
that, and I do, too.
There are also other considerations here. What this
specific hearing and this specific legislation is about is the
fact that you are omnipotent when you issue rules and
regulations. They affect the world. They affect the country.
When you issue them, it is only right and fair.
We have many, many laws on the books. This is just a few of
them: the Native Quality Act, Small Business Regulatory
Enforcement Act, Regulatory Flexibility Act. These laws are
there for the simple purpose of when the Federal Government
regulates, it has to do so in an open atmosphere and fairly so
that all sides, when you are going to do it to somebody, at
least they have the opportunity to defend themselves.
Mr. Foulke. I think that is the strength of our country.
Chairman Norwood. It is the strength of our country, and it
is the weakness of incorporating rules by reference,
particularly when you incorporate rules by reference. This
thing is very interesting to me in that the people who work for
you during the day are the same people who are writing these
rules, or at least reviewing the literature.
From what we have been told, they take about 7 minutes
coming to a conclusion once they review the literature. When
they do that at night, off-campus so to speak, and then go back
to work the next day and then sit around and make a
recommendation, we really ought to accept this rule by
reference, and put it in there and go ahead, because that is
the easy way. That is the fast way.
You know, nobody knows what they reviewed, what their
biases may or may not be. Nobody knows if it has been fair.
Nobody knows if they have reviewed scientific material that is
accurate. Nobody knows, including you, actually.
Mr. Owens implied, well, they aren't secretive. Well, of
course they are secretive. They won't tell you what they have
done, what they reviewed, what any of it is about. You can't go
to the meeting. You can't have any input into what they are
doing. It is totally secretive.
These are government employees who can't do it legally on
their day job, and they are doing it illegally at night. And it
is affecting people. Now, having said that, I want us to have
good TLVs, good PELs, too. I am most anxious in updating our
PELs, but it has to be done in the right way.
What can you do to help me?
Mr. Foulke. Well, as I mentioned to you in my testimony,
Mr. Chairman, I have asked my staff to look at different
options that we can look at. One of the things we are also
looking potentially to do is to make sure about reviewing the
documents we have sent out with respect to participation in
outside nongovernmental organizations, and also making sure or
reaffirming the fact that we are not enforcing TLVs; that they
are strictly for informational purposes; and that any type of
citation would be based on an actual violation.
So we are moving that, and I am hoping, like I say, that we
will have some additional options that I am going to be able to
move forward from a regulatory prospect or a nonregulatory
prospect. I am not sure yet, but we are going to move forward
and address the issue that you have clearly identified.
Chairman Norwood. Can't the secretary of labor simply say
we are going to stop doing this because it is not right,
without us having to pass legislation?
Mr. Foulke. I would hope that what we are working on, the
options, are something that once we complete them and decide
how we are going to move forward with whatever options, and
maybe discuss them with you, you might see that once they are
implemented that there may be no need for regulation.
Chairman Norwood. I would be happy to, no need for the new
law.
Mr. Foulke. The new law, right.
Chairman Norwood. Yes. I would be happy to work with you,
and want to work with you on that. It is going to be a matter
of who gets there first.
[Laughter.]
Mr. Foulke. I know you are a hard-charging person, but then
again I am right behind you.
Chairman Norwood. Well, I am counting on you. I actually
hope you win, but I will tell you right now, we are not going
to slow down. I can tell you that.
Mr. Owens, would you care to have anything else?
Mr. Owens. Thank you, Mr. Chairman.
I just wanted to briefly comment that we will be happy to
work with you, Mr. Foulke. We understand the chairman is hard
on lawyers.
[Laughter.]
Chairman Norwood. You are hard on dentists. So what?
[Laughter.]
Mr. Kucinich, would you like to be recognized? You are
recognized for 5 minutes.
Mr. Kucinich. Thank you, Mr. Chairman.
Mr. Foulke, what is a reasonable amount of time for all
workplaces in a state to be inspected?
Mr. Foulke. What is a reasonable time? All workplaces in
the country or just in a state?
I don't know if I really have an answer for that. I mean,
clearly what we have tried to do at OSHA is set up a priority
system to identify those employers that have the highest injury
and illness rates, those that we consider to be the most
dangerous operations that have potentials for injuries,
illnesses and fatalities.
So we actually, we are very focused on that thing. As a
time period, I don't believe I could give you an answer on
that.
Mr. Kucinich. Based on OSHA records, my home state of Ohio
is assigned 60 OSHA inspectors. With these 60 inspectors, it
would take approximately 97 years to inspect each workplace
once. Is it acceptable to have insufficient number of
inspectors to inspect every workplace in a reasonable amount of
time?
Mr. Foulke. Well, I guess I would say, Congressman, there
are a lot of employers that have very safe worksites that
probably don't need inspection. What we have tried to do----
Mr. Kucinich. How would you know if you never looked?
Mr. Foulke. Well, how we do it is we do get data on the
particular worksites. As I indicated previously, the fact that
we are focused in on, we have what we call site-specific
targeting for our inspections. We go after the employers that
have the worst injury and illness rates.
We also have an enhanced enforcement program where we find
that where employers who have not been inspected previously,
that have not seemed to have improved like they should, we
actually expand the inspection to their other facilities around
the country.
So we have a very targeted program. Our program I think has
yielded very significant results. We have been able to reduce
workplace fatalities from 1971 to the present by 60 percent,
and we have reduced injuries and illnesses since 1971 by 40
percent. At the same time, the workplace has doubled.
Mr. Kucinich. Thank you.
I am going to ask you some questions, and I appreciate your
answers, but I am going to ask you to be a little bit more
efficient so I can get my questions in.
It is interesting to see you assert basically that you have
enough inspectors based on reporting, but I think it is
important, Mr. Chairman and Mr. Owens, to look at the
relationship between the number of inspectors you have and the
number of OSHA safety regulations that have been withdrawn by
the administration, because if you have safety regulations that
are withdrawn, you are not looking that way.
So it is possible, for example, that in metalworking, in
oil and gas well drilling, in occupational risk in the
manufacture and assembly of semiconductors and processing
management of highly hazardous chemicals, and with respect to
permissible exposure levels for air contaminants, with work on
flammable and combustible liquids, wherever, and on and on and
on, and a list that I want to submit for the record here.
But since you are not looking in that direction, because
you have essentially withdrawn safety regulations, you don't
feel you need inspectors in that area. So it may be that you
are actually undermining the very spirit of the OSHA law, which
was passed in 1970, and I might add, signed into law by Richard
Nixon, that states that Congress finds that personal injuries
and illnesses arising out of work situations imposes a
substantial burden upon and are a hindrance to interstate
commerce, in terms of lost production, wage loss, medical
expenses and disability compensation payments.
OSHA was passed not only for workers, but for business as
well. So I have another question that I want to ask. Do you
believe that appropriate deterrence in a criminal system helps
prevent crimes from occurring?
Mr. Foulke. I am sorry. Could you repeat the question?
Mr. Kucinich. Do you believe that appropriate deterrence in
the criminal system helps prevent crimes from occurring, like
penalties, for example, or sentences?
Mr. Foulke. I would say that that may be a partial impact
on activity. Yes, I would say that in part would be true.
Mr. Kucinich. Are OSHA's penalties for violations serious
enough to deter an employer from violating workplace safety
rules?
Mr. Foulke. I would say the act sets the civil penalties
and also the criminal penalties. Obviously, that is the purview
of the Congress if they wanted to change that. I would say that
if you look at what we have done in the penalty situation, last
year we had double the number, I won't say egregious, the
enhanced enforcement actions that we have had, where the
penalties were over $100,000, than the year before. In 2005, we
actually doubled the number of company's inspections where the
penalty was over $100,000. So we are really focusing on that.
We also have our egregious policy, which allows us to do
sites item by item. So we have a lot of tools in the OSHA tool
box that deal with penalties to be a deterrent. So I would say
that is correct.
Mr. Kucinich. Mr. Chairman, I see my time has expired. What
I would like to do is submit for the record that the average
OSHA penalty for a violation by an employer deemed serious in
2005 was $873, and the average OSHA penalty for a repeat
violation by an employer in 2005 was $3,635.
I would like to submit for the record the list of safety
regulations that have been withdrawn by the administration; a
copy of the bill that was the purpose of our subcommittee, the
OSHA bill; and also a report, a state-by-state profile of
worker safety and health in the United States. It is an up-to-
date report called ``Death on the Job.''
I appreciate it, Mr. Chairman.
Chairman Norwood. So ordered.*
---------------------------------------------------------------------------
*Submitted and placed in permanent archive file, ``OSHA Standards
Killed, Withdrawn Or Delayed Under Bush Administration,'' also appear
on p. 38 of this document. ``Death on the Job: The Toll of Neglect. A
National and State-by-State Profile of Worker Safety and Health in the
United States,'' 15th Edition. April 2006, http://www.aflcio.org/
mediacenter/resources/reports.cfm. (Submitted for the record by Rep.
Kucinich).
---------------------------------------------------------------------------
Mr. Kucinich. Thank you.
Chairman Norwood. Mr. Secretary, thank you very much for
your time and cooperation. I look forward to working with you.
You may now step down, and the second panel please move
forward.
Mr. Foulke. Thank you, Mr. Chairman. I thank the committee.
Chairman Norwood. Gentlemen, welcome. I appreciate your
time and effort to be here.
I will start and introduce all three of you, and then we
will go back to Mr. Casper and start with you, sir.
Joseph Casper is vice president for environment, health and
safety at the Brick Industry Association in Washington, D.C.
Mr. Casper previously served in both the Reagan and the George
H.W. Bush administrations, including working on Vice President
Bush's domestic policy staff at the White House and serving as
the Commerce Department's director of legislative affairs for
the U.S. Travel and Tourism Administration. Mr. Casper earned a
degree in psychology from Georgetown University and a master's
degree from Johns Hopkins University.
Dr. David Michaels is a research professor and associate
chairman of the Department of Environmental and Occupational
Health at George Washington University. Much of Dr. Michaels'
work has focused on the use of science in public policy. From
1998 through January 2001, Dr. Michaels served as the
Department of Energy's assistant secretary for environment,
safety and health. Dr. Michaels holds a master's of public
health and a doctorate degree from Columbia University.
Mr. David Sarvadi is a partner at Keller and Heckman here
in Washington, D.C. Mr. Sarvadi is an attorney working with
clients in the area of occupational health and safety, toxic
substance management, employment law, and product safety. He
represents clients before a variety of Federal and state
agencies in legal proceedings involving OSHA citations, the
Environmental Protection Agency, and other Federal entities.
In addition, Mr. Sarvadi is a certified industrial
hygienist. He holds an undergraduate degree from Pennsylvania
State University, a master's degree from the University of
Pittsburgh Graduate School of Public Health, and a law degree
from George Mason University.
I would like to remind the members that we will be asking
questions of the witnesses after testimony. In addition,
committee rule two imposes a 5-minute limit on all questions.
Mr. Casper, you are now recognized.
STATEMENT OF JOSEPH S. CASPER, VICE PRESIDENT OF ENVIRONMENTAL
HEALTH AND SAFETY, THE BRICK INDUSTRY ASSOCIATION
Mr. Casper. Thank you, Mr. Chairman and members of the
subcommittee.
My name is Joseph Casper of the Brick Industry Association,
the national trade association for the brick industry,
consisting of companies that manufacture and distribute quality
clay brick products across the United States.
BIA is committed to efforts to protect the health and
safety of our industry's workforce. In fact, this past March
BIA formally signed an alliance agreement with OSHA pledging to
collaborate with the agency on worker health and safety issues.
We very much appreciate today's opportunity to testify before
you because BIA strongly supports H.R. 5554.
I wish to speak particularly about silica and silicosis in
brick manufacturing. We believe that nonconsensus standards
regarding crystalline silica developed by the American
Conference of Governmental Hygienists, or ACGIH, threshold
limit values or TLV committee, utterly failed to take into
account the particular conditions of our industry.
To begin, it is good news indeed that mortality and
morbidity from silicosis has declined significantly over the
past several decades, but we want the subcommittee to know that
while cases of silicosis continue to occur in other industries,
the experience with silicosis among brick workers is in sharp
contrast.
My prepared testimony contains information on six peer-
reviewed studies of brick workers from 1941 to 1999. Of these,
five showed no evidence of silicosis. The sixth study found
some changes consistent with silicosis, changes in the lung,
but those were exceedingly low and below the background
expected of a normal population not exposed to silica dust.
Indeed, the lack of silicosis in the brick industry has
perplexed scientists and caused them to look carefully at what
is unique about the silica in brick manufacturing, as
contrasted with other industries, in an attempt to disentangle
why exposures above safe levels are not resulting in cases of
silicosis.
While not yet definitive, the answer appears to be found in
the composition of the raw materials used to manufacture brick.
To develop a better understanding of silicosis in the brick
industry, our association sponsored a just-conducted study that
determined the prevalence of radiographic signs of silicosis
among current workers.
We chose as the study leader Dr. Patrick Hessel, an
epidemiologist with great experience in occupational and
environmental lung diseases, who has conducted extensive
research on silicosis, asbestosis and lung cancer. Dr. Hessel
and his colleagues studied workers at 13 plants producing clay
brick from 94 facilities operated by members of the BIA. These
workers were selected through a random process, taking account
of company size, geographic location and employee age.
Radiographs from 701 workers were read by two NIOSH-certified
B-readers.
Very importantly, none of the chest X-rays of the 701
workers was consistent with silicosis. These results are
consistent with the studies that I mentioned earlier of brick
workers from around the world, including the United States, and
provide additional evidence that for the brick industry, the
ACGIH TLVs are overly restrictive and inappropriate.
While BIA supports the intent of the OSHA hazcom standard,
there are provisions of it with which we disagree. One of the
most disturbing is the recognition by OSHA of the latest
addition of the TLVs of the ACGIH as a source showing that the
listed chemicals are hazardous for purposes of hazard
communication. Even more problematic is the requirement that
material safety data sheets must include the current ACGIH TLV
for each chemical.
We do not wish to denigrate the ACGIH or its TLV committee,
both of which have through the years made significant
contributions to the fields of industrial hygiene and
occupational health. However, times have changed and we believe
the TLV committee has failed to keep pace.
For example, when a Medline search of the medical
literature for the term ``asbestos'' returns over 9,000
citations, and for the term ``silicosis'' returns almost 7,000
citations, gone are the days when a volunteer committee of some
24 scientists could devote their spare time to do a credible
job in collecting, organizing, reading, evaluating and writing
scientific justification for the more than 600 substances for
which a TLV has been established.
Very specifically, the recent changes in the TLV for
quartz, a form of crystalline silica that is the second most
common mineral in the Earth's crust, illustrates the problem.
In 2000, the TLV committee reduced by half the TLV for quartz
that had been accepted for 28 years.
On the other hand, in 2006, just 6 years later, the ACGIH
concluded that the science had changed again to the point that
another new TLV for quartz was recommended and adopted, with
another reduction by half of the value, down to .25 milligrams
per cubic meter.
The documentation justifying lowering of the 2006 TLV
included only 96 scientific references, even though a Medline
search conducted online from the National Library of Medicine
Web site captures almost 7,000 citations for the term
``silicosis.'' Among those 96 citations, not one of the papers
I discussed earlier of studies of silicosis in the brick
industry was referenced by the TLV committee.
In conclusion, without considering any of the scientific
literature referenced earlier concerning brick workers, the TLV
committee concluded that there is scientific justification for
further lowering of the quartz TLV. What this means is that
under existing provisions of the hazcom standard, our member
companies were given only 3 months to update their MSDS's with
a value that is not scientifically defensible for distribution
to customers, or face being in violation of the act.
Something is fundamentally wrong with such a regulatory
burden being placed on industry without any means of being able
to involve itself through any meaningful input or
administrative recourse. Therefore, for the reasons just
stated, Mr. Chairman, BIA strongly supports your favorable
consideration of H.R. 5554, the Workplace Safety and Health
Transparency Act.
Thank you.
[The prepared statement of Mr. Casper follows:]
Prepared Statement of Joseph S. Casper, Vice President, Environment,
Health & Safety, the Brick Industry Association
Mr. Chairman and Members of the Subcommittee, my name is Joseph S.
Casper and I am vice president for Environment, Health, and Safety for
the Brick Industry Association, headquartered in Reston, Virginia.
The Brick Industry Association (``BIA'') is the national trade
association representing the brick industry, consisting of companies
that manufacture and distribute quality clay brick products (both face
and paver brick) across the United States. Thirty-five manufacturer
members of the BIA produce between 80 to 85 percent of all 10 billion
bricks produced annually. Most of these manufacturers are small
businesses. The approximate number of workers employed in our industry
(production, distribution, professional services, masons, etc.) is
215,000. All told, the brick industry contributes more than $20 billion
annually to the U.S. economy.
Brick continues to be a highly desirable form of wall cladding
because of its durability and energy efficiency, as well as its ability
to safeguard against both fire and high winds. Brick is available in
many different textures, and in an almost limitless number of colors.
BIA's organization has departments devoted to marketing,
engineering services, and safeguarding the environment, as well as
employee health and safety.
The BIA is committed to efforts to protect the health and safety of
our industry's workforce. In 2004, BIA hosted OSHA Administrator John
Henshaw for a keynote address at our annual trade show and convention.
Also, this past March BIA formally signed an Alliance agreement with
OSHA, pledging to collaborate with the Agency on efforts to improve the
provision of practical guidance on worker health and safety issues.
On behalf the brick industry, we very much appreciate the
opportunity to testify before you today on the important topic of the
U.S. Department of Labor's use of non-consensus standards in workplace
health and safety. In that regard, for the reasons set forth below, the
BIA strongly supports H.R. 5554, the Workplace Safety and Health
Transparency Act of 2006.
Silica and Silicosis in Brick Manufacturing
We wish to speak particularly about silica and silicosis in brick
manufacturing. As you will hear, we believe the non-consensus standards
regarding crystalline silica, developed by the American Conference of
Governmental Hygienists' Threshold Limits Committee utterly fail to
take into account the particular conditions of our industry.
To begin, it is good news, indeed, that mortality and morbidity
from silicosis across industry, in general, has declined significantly
over the past several decades (in 1968--1168 silicosis-related deaths
were reported; in 2002--148 silicosis-related deaths were reported).
Nevertheless, cases of silicosis continue to occur in the quarrying and
cutting of stone, in mining of metallic and nonmetallic ores, in iron
and steel foundries, and in construction.\1,2\ However, we want the
Subcommittee to know that the experience with cases of silicosis among
brick workers in the United States, and elsewhere, is in sharp contrast
to the experiences with silicosis in the other industries mentioned
above.
Thus, in this country, an early study (1941) in North Carolina
examined 1555 workers clinically and by chest x-ray in 48 brick plants
and collected 183 dust samples in 28 of those same plants.\3\ These
chest x-rays were read independently by two physicians who were
experienced film readers with the North Carolina Dusty Trades Program,
an early prevention program that conducted routine medical examinations
of workers in asbestos textile plants, quarries, sand plants, and clay
operations in the state. Both of the physicians reported no evidence of
silicosis in any of the workers. Average dust exposures ranged from 2
to 138 million particles per cubic foot (``mppcf') and 11 of the 31
jobs had average exposures above 20 mppcf. The current OSHA silica
Permissible Exposure Limit (``PEL'') for the dust in this study would
have been 12.5 mppcf
Similarly, a 1972 study in Canada of workers manufacturing
structural clay bricks in Ontario documented extremely high dust
levels, some more than 100 times the prevailing occupational limits.\4\
Despite these high levels, no cases of silicosis were found. A more
recent study (1998) from Croatia found no evidence of pneumoconiosis
among 233 workers.\5\ Likewise, a 1983 study in Poland by Wiecek and
colleagues found no pneumoconiosis among workers making structural clay
brick.\6\ Lastly, and most recently a 1999 study of more than 1,900
workers in the brick industry in England and Scotland found that x-ray
evidence of small rounded nodules consistent with silicosis were
exceedingly low and below the background expected in a normal
population not exposed to silica dust.\7\ This finding was surprising
to the authors in that most jobs in the brick plants studied had
average exposures to respirable quartz greater than the current OSHA
PEL of 0.1 milligrams per cubic meter of air (mg/m3).
Indeed, the lack of silicosis in the brick industry has perplexed
scientists and caused them to look carefully at what is unique about
the silica in brick manufacturing, as contrasted with other industries,
in an attempt to disentangle why exposures above ``safe'' levels are
not resulting in cases of silicosis. While not yet definitive, the
answer appears to be found in the composition of the raw materials used
to manufacture bricks. The principal raw materials used in the
manufacture of structural clay brick include clays and shales having a
composition of 35 to 50 percent sedimentary clays, but in addition,
commonly containing 40 to 50 percent crystalline silica as quartz.\8\
The authors of the 1972 Canadian brick study4 addressed this issue.
In their study of over 1,000 brick workers in Ontario they were
surprised that they did not find signs of silicosis in brick workers
despite finding that workers were exposed to dust levels eight to 111
times the existing American Conference of Governmental Industrial
Hygienists (``ACGIH'') Threshold Limit Value (``TLV''). They
hypothesized that the aluminum contained in the clays and shales that
coated the silica particles may have reduced their ability to produce
silicosis. And, indeed, recent laboratory studies by other scientists
suggest that the coating of silica particles by aluminum in these clay
and shale minerals does indeed reduce its biological activity.\9,10,11\
Thus, for example, the researchers in the United Kingdom noted the
potential impact of aluminum as well as other metal ions on the surface
of quartz particles in heavy clay industry, and pointed specifically to
the mineral illite as being effective in reducing the toxicity of
inhaled quartz.7 While the exact mechanism whereby the clays and shales
used in brick manufacturing modify the toxicity of silica is a
scientific uncertainty, it is evident that a modification takes place,
and that brick workers do not have the same risk of developing
silicosis as other workers such as granite carvers, foundry workers and
metal miners.
To develop a better understanding of silicosis in the brick
industry, our Association has sponsored a just-concluded Study,
entitled ``The Prevalence of Silicosis in the Brick Industry,'' to
determine the prevalence of radiographic signs of silicosis among
current workers in the U.S. brick industry. We chose as the Study
leader Dr. Patrick Hessel, an epidemiologist with great experience in
occupational and environmental lung diseases, who has conducted
extensive research on silicosis, and lung cancer. Dr. Hessel and his
colleagues studied workers at thirteen plants producing structural clay
brick from 94 facilities operated by members of the Brick Industry
Association. These workers were selected through a random process,
which took account of company size, geographic location, and employee
age. Radiographs from 701 workers were read by two NIOSH-certified B-
readers. When the two primary readers disagreed on the interpretation
of a film, the chest x-ray was ready by a third B-reader. Very
importantly, one of the chest x-rays of the 701 workers was consistent
with silicosis. These results are consistent with the previous studies
mentioned of brickworkers from the United States, the United Kingdom,
Canada, Croatia and Poland, and provide additional evidence that the
ACGIH TLVs, as well as other occupational exposure limits for silica,
are overly restrictive and inappropriate for the brick industry.
We were pleased that Dr. Hessel's research shows brick workers
appear not to be at risk for silicosis at today's exposure levels. Our
industry will continue to look for opportunities to sponsor research to
fill the critical knowledge gaps regarding the uniqueness of the silica
particles found in the brick industry.
Hazard Communication for Silica in Structural Brick
The Brick Industry Association supports the intent of the OSHA
Hazard Communication Standard (the ``HAZCOM'' Standard'') that the
hazards associated with the use of chemicals should be evaluated, and
that information concerning the potential hazards and means of
protecting workers should be transmitted to both employers and
employees. Indeed, our Association has worked with our member companies
on evaluating the hazards from exposure to brick dusts and the means of
communicating such information. However, there are provisions of the
HAZCOM Standard with which we disagree. One of the most disturbing is
the recognition by OSHA of the latest edition of the TLVs of the ACGIH
as a source showing that the listed chemicals are hazardous for
purposes of hazard communication. Even more problematic is the
requirement that Material Safety Data Sheets must include the current
ACGIH TLV for each chemical.
The ACGIH and Its TLV Committee
We do not wish to denigrate the ACGIH or its TLV Committee, both of
which have made significant contributions to the fields of industrial
hygiene and occupational health. Over the life of the organization, the
TLV process has been one of the better known activities of the ACGIH.
However, times have changed and we believe the TLV Committee has failed
to keep pace. In 1941, when the TLV Committee was established, and
through the next several decades, the TLV Committee process seemed to
work well. Committee members, mostly toxicologists and industrial
hygienists, met to evaluate the published scientific literature (albeit
generally scanty), unpublished industry studies, and often anecdotal
accounts of health effects of exposures. These evaluations were then
followed by a recommendation to the ACGIH's membership for the adoption
of threshold limit values that were then to be used as guidelines by
trained industrial hygienists.
The most significant factor in outdating the TLV process was the
passage of the 1970 Occupational Safety and Health Act (``OSH Act'')
which established OSHA, as a new and critically important player in the
national arena of occupational safety and health. OSHA was mandated, by
statute, to carry out development of mandatory safety and health
standards--and enforcement of those standards to ensure employers
provided safe and healthful workplaces for employees. The OSH Act
created enormous interest in employee safety and health that led to an
explosion of quantitative and qualitative information. This information
overload was perhaps the single most important factor causing the
unraveling of the TLV model.
Thus, for example, when a Medline search of the medical literature
for the term ``asbestos'' returns over 9,000 citations and a search for
the term ``silicosis'' returns almost 7,000 citations, gone are the
days when a volunteer committee of some 24 scientists could devote the
spare time to do a credible job in collecting, organizing, reading,
evaluating and writing scientific justification for the more than 600
substances for which a TLV has been established.
Other flaws of the ACGIH TLV process, which I only have time to
briefly mention, include lack of any meaningful involvement in the
Committee's work by other ``stakeholders,'' particularly industry; no
real feed-back to stakeholders' legitimate scientific comments (even
though such comments are solicited by the Committee), or even any
assurances that they were read. In addition, potential conflicts of
interest arise from the involvement of government officials on the
Committee who are responsible for developing federal safety and health
standards. Furthermore, the potential for a conflict exists when
federal scientists engaged in research on a substance are asked to
prepare scientific justification for a TLV for that substance without
rigorous peer review.
Very specifically, from our perspective, the recent changes in the
TLV for quartz, a form of crystalline silica that is the second most
common mineral in the earth's crust, is illustrative of the problem. In
2000, the TLV Committee reduced by half the TLV for quartz to 0.05 mg/
m3 from its value of 0.1 mg/m3 adopted during the 1986-1987 period.
Coincidentally, the 0.1 mg/m3 is essentially equivalent to the TLV that
was calculated from the formula for quartz adopted by the TLV Committee
in 1972. What this means is that, for all practical purposes, the TLV
did not change for 28 years from 1972 until the abovementioned 2000
reduction. On the other hand, in 2006, just six years later, the ACGIH
concluded that the science had changed again, to the point that another
new TLV and adopted with another halving of the value to 0.025 mg/m3:
The documentation validating the lowering of the 2006 TLV included
only 96 scientific references, even though, as I mentioned previously,
a Medline search conducted online from the National Library of Medicine
website captures almost 7,000 citations for the term ``silicosis''.
Among those 96 citations, not one of the papers I discussed earlier of
studies of silicosis in the brick industry was referenced by the TLV
Committee. Those studies indicate that even the earlier TLV of 0.1 is
mg/m3 is probably not appropriate or necessary for silica exposures
among brick workers.
Without considering any of the scientific literature I have cited
that relates to studies of silicosis among brick workers, the TLV
Committee concluded that there is scientific justification for further
lowering of the quartz TLV. What this means for the brick industry is
that, under existing provisions of the HAZCOM Standard, our member
companies were given only three months to update their Material Data
Safety Sheets (``MSDS'') materials with a value that is not
scientifically defensible for distribution to customers--or face being
in violation of the Act. Something is fundamentally wrong with such a
regulatory burden being placed on industry, without any means of being
able to involve itself through any meaningful input or administrative
recourse.
Conclusion
The relevant issue harming our industry is that, for purposes of
its HAZCOM Standard, OSHA has recognized the ACGIH TLV list of
chemicals as denoting that a substance is a hazard, irrespective of its
conditions of use; and that the TLV must be communicated to downstream
users regardless of whether it is justifiable scientifically. This
naturally can and does cause unnecessary apprehension about the use of
our product by our customers, and can adversely affect our ability to
sell in a very competitive marketplace.
Therefore, it is for the reasons briefly outlined above, Mr.
Chairman and Members of the Subcommittee, that the BIA strongly
supports your favorable consideration of H.R. 5554, the Workplace
Safety and Health Transparency Act of 2006. If enacted, the Bill will
prohibit OSHA from blithely and indiscriminately requiring changes to
MSDSs every time the ACGIH changes a TLV. Just as importantly, the Bill
will not prevent OSHA from adopting true consensus standards in a
timely fashion.
Again the brick industry appreciates the opportunity to share our
view with on this important legislation and urges the Subcommittee's
rapid approval of H.R. 5554.
ENDNOTES
\1\ NIOSH, Work-Related Lung Disease Surveillance Report 2002,
National Institute for Occupational Safety and Health, Centers for
Disease Control and Prevention, DHHS (NIOSH) Number 2003-111, May 2003.
(Available at: http://www.cdc.gov/niosh/docs/2003-111/2003-111.html)
\2\ Bang KM, Mazurek JM and Attfield MD. Silicosis mortality,
prevention, and Control--United States, 1968-2002, MMWR 54(16); 401-
405, 2005. (Available at: http://www.cdc.gov/mmwr/preview/mmwrhtml/
mm5416a2.htm)
\3\ Trice MF. Health of brick and tile workers in North Carolina.
Bulletin of the American Ceramic Society. 20(4); 130-134, 1941.
\4\ Rajhans & Buldovsky J. Dust conditions in brick plants of
Ontario. Am Ind Hyg Assoc J, 33: 258-268, 1972.
\5\ Zuskin E, Mustajbegovic J, Schachter EN, Kern J, Doko-Jelinic
J, Godnic-Cvar J. Respiratory findings in workers employed in the
brick-manufacturing industry. J Occup Environ Med. Sep; 40(9):814-20,
1998.
\6\ Wiecek E, Goscicki J, Indulski J, & Stroszejn-Mrowea G. [Dust
and occupational diseases in brick yards.] Med Pr, 34: 34-45, 1983 (in
Polish).
\7\ Love RG, Waclawski ER, Maclaren WM, Wetherill GZ, Groat SK,
Porteous RH, & Soutar CA. Risks of respiratory disease in the heavy
clay industry. Occup Environ Med, 56: 124-133, 1999.
\8\ Brownell WE (1976): Structural clay products. In: Frechette VD,
Kirsch H, Sand LB, and Trjer F (eds). Applied Mineralogy. New York:
Springer-Verlag. Pp. 24-42.
\9\ Harrison J, Chen JQ, Miller W, Chen W, Hnizdo E, Lu J, Chisholm
W, Keane M, Gao P, Wallace W (2005): Risk of silicosis in cohorts of
Chinese tin and tungsten miners and pottery workers (II): Workplace-
specific silica particle surface composition. Am J Ind Med 48:10-5.
\10\ Fubini B, Fenoglio I, Ceschino R, Ghiazza M, Mrtra G, Tomatis
M, Borm P, Schins R, Bruch J (2004): Relationship between the state of
the surface of four commercial quartz flours and their biological
activity in vitro and in vivo. Int J Hyg Environ Health 207:89-104.
\11\ Clouter A, Brown D, Hohr D, Borm P, Donaldson K (2001):
Inflammatory effects of respirable quartz collected in workplaces
versus standard DQ 12 Quartz: Particle surface correlates.
Toxicological Sciences 63: 20-98.
______
Chairman Norwood. Thank you very much, Mr. Casper.
Dr. Michaels, you are now recognized for 5 minutes.
STATEMENT OF DAVID MICHAELS, PH.D., MPH, RESEARCH PROFESSOR AND
ASSOCIATE CHAIRMAN, DEPARTMENT OF ENVIRONMENTAL AND
OCCUPATIONAL HEALTH, GEORGE WASHINGTON UNIVERSITY
Dr. Michaels. Good morning. My name is David Michaels,
research professor in environmental and occupational health at
George Washington University's School of Public Health. I would
like to request that my entire written statement, along with
accompanying papers, be entered into the record of this
hearing.
This legislation, Mr. Chairman and members of the
committee, is not what it appears to be. Its objective is not
to improve the administrative process, and it certainly makes
no attempt to ensure that good science is used to protect the
public's health. In fact, it does the opposite. It ensures that
the newest best science will not be used to protect workers
from toxic exposures.
I have first-hand experience as a regulator. I served as
the Department of Energy's assistant secretary for environment,
safety and health, responsible for safety and health at the
nation's nuclear weapons facilities.
I agree with Assistant Secretary Foulke's assessment of
this bill. It would significantly obstruct OSHA's and MSHA's
work. But that is its objective. The proposed legislation is
part of a campaign spearheaded by the well-paid lobbyists at
the firm of Patton Boggs being waged on behalf of a small group
of companies for the right to----
Chairman Norwood. Sir, I object. Patton Boggs didn't write
that legislation. I did. Don't be telling me why I wrote it.
Dr. Michaels. With due respect, sir, I didn't say that they
wrote the bill. I said they are spearheading the campaign to do
this work.
After losing in Federal court not once but twice, these
parties now seek special favors from Congress. Under this bill,
OSHA and MSHA could not use----
Chairman Norwood. I object to that, too. What are you
implying there, Dr. Michaels?
Dr. Michaels. I am saying these companies did not succeed
in court in shutting down the ACGIH, so they come to Congress--
--
Chairman Norwood. This law firm you refer to I have no
interest in. You are impugning my reputation right here, and I
want it stopped. Am I clear?
Dr. Michaels. I understand what you are saying, sir.
Chairman Norwood. I hope you do.
Dr. Michaels. Under this bill, OSHA and MSHA could not use
recommendations from expert organizations unless the agency
determines that the recommendations were reached using a
process that ensured that impacted industries agree with the
recommendations. Protecting workers from chemical hazards
should be based on science, not on gaining the agreement of
industries responsible for the hazard.
The proposed legislation is written so broadly that it
would even stop the agencies from using the recommendations of
highly regarded government panels such as the National
Toxicology Program. In 1971, OSHA adopted about 400 ACGIH TLVs,
which used the science of the 1950's and the 1960's.
Since then, OSHA has updated only a handful of them. The
rest have been unchanged in more than 35 years. The OSHA
standard-setting process is cumbersome and easily derailed by
those intent on slowing action. The political appointees who
run the agency at the present time have no desire to strengthen
these inadequate standards.
Instead, the American public must rely on organizations
like the ACGIH and IARC, the International Agency for Research
on Cancer. When the IARC expert panel concludes that a
substance like silica or beryllium or hexavalent chromium
causes cancer in humans, shouldn't this information be provided
to exposed workers? Wouldn't you want to know if the chemicals
you work with cause cancer?
The outside proponents of this legislation have labeled any
recommendations they don't like as junk science. In doing so,
they have taken a page from the tobacco industry's playbook.
With all due respect, the attorneys and trade associations who
are pushing this line are as wrong as the tobacco executives
who testified in this very building that smoking does not cause
cancer.
We all agree that OSHA should issue more standards and that
the agency has abdicated its responsibility to do so, I
believe. The effects of this OSHA failure are real and they are
tragic and they are happening right before our eyes. Scores of
workers have been diagnosed with what has been called popcorn
worker's lung from a widely used chemical that provides butter
flavoring for popcorn, but OSHA has no plans for a standard to
protect food industry workers from this debilitating lung
disease.
I ask, can't we do a better job to protect American
workers?
Thank you very much.
[The prepared statement of Dr. Michaels follows:]
Prepared Statement of David Michaels, Ph.D., MPH, Director, the Project
on Scientific Knowledge and Public Policy; Research Professor and
Associate Chairman, Department of Environmental and Occupational
Health, George Washington University
Good morning Mr. Chairman and members of the Committee. My name is
David Michaels. I am a Research Professor in Environmental and
Occupational Health at the George Washington School of Public Health
and Director of the Project on Scientific Knowledge and Public Policy,
known as SKAPP.\1\ SKAPP was created five years ago by a group of
public health scientists to enhance the public's understanding of how
scientific evidence is used in the regulatory and legal arenas. From
1998 to 2001, I served as the Department of Energy's Assistant
Secretary for Environment, Safety and Health from 1998 through January
2001. I had primary responsibility for protecting the health and safety
of workers, the neighboring communities and the environment surrounding
the nation's nuclear weapons facilities.
This legislation, Mr. Chairman, is not what it appears to be. Its
objective is not to improve the administrative process and it certainly
makes no attempt to ensure that good science is used to protect the
health of workers, or the public. In fact, it does the opposite. It
ensures that the newest, best science will not be used to protect
workers from hazardous chemicals.
The purpose of the OSHA and MSHA ``HazCom'' standard is ensure that
employers and workers receive information about the risks associated
with exposure to a product--information that product's manufacturer is
required to provide on Material Safety Data Sheets, known as MSDSs. The
current OSHA and MSHA rules require the MSDS for any product to
include, among other things, any recommended exposure limits to the
product from certain professional organizations which have expertise in
occupational safety and health.
Under the proposed legislation, OSHA and MSHA could not require
such recommended exposure limits be included on an MSDS unless the
agency determines that the recommendation was reached using a process
that ensures that the impacted industries are in substantial agreement
with the recommendation. And, Mr. Chairman, that simply is not going to
happen. Protecting workers from chemical hazards should not depend on
what everyone can agree.
Manufactured Uncertainty
The sad truth is that industries responsible for hazards generally
prefer to manufacture uncertainty in order to avoid the costs
associated with reducing toxic exposures.\2,3\
This bill would directly bar OSHA and MSHA from complying with
their statutory mandates to take into account the best scientific
evidence in developing rules currently in process. The proposed
legislation is written so broadly, Mr. Chairman, that it would even
stop the Department of Labor from using the recommendations of highly
regarded government panels, such as those of the National Toxicology
Program.
The reality is that this legislation is part of a campaign,
spearheaded by the well-paid lobbyists at the firm of Patton, Boggs,
being waged on behalf of a small group of companies and trade
associations. After losing in federal court, not once, but twice, these
parties now seek special favors from Congress in the form of this anti-
public health legislation. Proponents of this bill want to make sure
they can continue to expose workers and the public to deadly hazards,
and do so without interference by public health authorities and without
the threat of legal action by those injured by their negligence.
Attorneys from Patton Boggs, for example, represent a group of mining
companies who have fought for at least a decade for the right to expose
underground miners to diesel particulate matter, a hazard that
increases their risk of cardiovascular and cardiopulmonary disease and
lung cancer.\4\ The EPA and this Congress have made important strides
to limit the public's exposure to such dangerous particulates, but
Patton Boggs continues to challenge the Department of Labor's efforts
to protect underground miners through sustained procedural attacks, and
sadly, have succeeded in delaying the rule. The unceasing efforts of
these lobbyists have genuine health consequences for exposed workers.
You recently heard testimony from a witness representing the
American Bakers Association complaining about the ACGIH threshold limit
value (TLV) for flour dust. What the witness failed to mention is that
respiratory disease among bakery workers is a serious matter, and the
scientific literature contains significant evidence that workers with
excessive exposure to flour dust are at increase risk of debilitating
respiratory disease. I commend the ACGIH for examining this hazard and
other health risks that OSHA failed to address.
Today, Mr. Chairman, the work of organizations like IARC and the
ACGIH are more important than ever. That is because the regulatory
agencies are simply unable to keep up. In 1971, OSHA adopted en masse,
about 400 ACGIH TLVs, reached using the science of the 1950's and
1960's, before we knew as nearly as much as we know today about the
long-term effects of many hazardous chemicals.
Since then, OSHA has updated only a handful of them. The rest have
been unchanged in more than 35 years. The OSHA standard setting process
is cumbersome and easily delayed by those intent on slowing action. The
political appointees who run the agency at the present time have no
desire to strengthen weak standards; except when under a court order.
Workers cannot rely on OSHA to issue new regulations on chemical
hazards. OSHA is paralyzed and has abdicated its responsibility to
issue health standards that protect workers. The situation at MSHA is
no better, as their exposure limits date back to 1973.
While OSHA and MSHA are frozen in time, IARC and the ACGIH have
moved forward. The organizations recognize that our scientific
methodologies are much improved since the 1960s and we are always
learning more about chemical hazards and therefore how to prevent
occupational disease and death.
Since the early 1970's the monograph program of IARC, a branch of
the World Health Organization, has convened interdisciplinary panels of
scientific experts to identify substances that pose a carcinogenic risk
to humans. These include some of the best scientists in the world, and
the program is supported with US funding.
These expert panels conduct public meetings in which
representatives of the affected industries and their lobbyists are
allowed to participate and comment. The scientists review the published
literature and evaluating the full range of evidence.\5\ It has been
nearly 10 years since IARC designated crystalline silica as a human
carcinogen. Washington trade groups, like the Brick Industry
Association, may object to IARC's designation, but representatives of
the producers and users of silica were present at the IARC meeting and
their input was heard.\6\ In the time since the IARC designation, the
evidence of the carcinogenicity of crystalline silica continues to
grow, while OSHA's standard, based on 1968 science, remains unchanged
and hopelessly outdated.
The IARC monograph series provides a great service, offering the
public health community a comprehensive assessment of the current
scientific information, at times when our own public health agencies
are under-resourced and unable to do so. When an IARC expert panel
concludes that a substance like silica, or beryllium, or hexavalent
chromium are carcinogenic to humans, shouldn't this information be
provided to workers through a MSDS and the right-to-know protections
afforded by the Hazard Communication standard?
Similarly, the ACGIH has developed TLV recommendations that are
stronger than OSHA's standards for a small but important group of
hazards. Hazards such as welding fumes, particulate matter and silica.
None of these are trivial--each is responsible for death and disability
among exposed workers.
In addition, the ACGIH has produced recommendations for many
chemicals for which no OSHA PEL currently exists. Since OSHA has
essentially stopped issuing new chemical standards, these recommended
TLVs serve as the basis for disease prevention programs by responsible
employers and public health professionals. And that, Mr. Chairman, is a
key purpose of OSHA and MSHA's Hazard Communication standards---giving
workers and employers the health effects information they need to be
proactive and take measures to prevent workplace injuries and
illnesses.
Taking the Tobacco Road
The proponents of this legislation have taken a page from the
Tobacco Industry's playbook. With no scientific support, except from
their own mercenary consultants, they've labeled any recommendations
they don't like as ``junk science''. With all due respect, the
attorneys and trade associations who are pushing this line are as wrong
as those tobacco executives who testified under oath in front of a
House Energy and Commerce committee hearing that tobacco didn't cause
cancer.
The secret agenda of Patton Boggs aside, you and I evidently agree
that OSHA should be issuing more standards, and that they have
abdicated their responsibility to do so.\7\ I have attached a list of
31 OSHA standards killed, withdrawn or delayed by the Bush
Administration.
The effects of this OSHA failure are real and they are tragic and
they are happening right before our eyes. Nearly 200 workers have been
diagnosed with what has been called ``popcorn workers lung'' from a
widely used chemical that provides butter flavoring for popcorn, but
OSHA has no plans for a standard to protect food industry workers from
having their lungs destroyed. (See attached article on popcorn workers
lung and OSHA's abdication.) \8\ OSHA's current beryllium exposure
standard dates to 1949. Fifty years later, when I was Assistant
Secretary of Energy, we issued a workplace exposure standard for
beryllium that is ten times stronger than OSHA's. After much initial
opposition, even the beryllium industry now acknowledges the current
OSHA standard is inadequate. The bill being considered today would
prohibit OSHA from referencing the ACGIH's recommendations on
beryllium, or IARC's findings that beryllium is a human carcinogen.
There are no comprehensive standards to protect workers from ergonomic
hazards, or from noise in the construction industry. I could go on and
on. This is a public health crisis.
I hope that Members of Congress will reject claims made by
proponents of this bill, and instead take the positive step of passing
legislation to incorporate the most current ACGIH TLVs into OSHA and
MSHA regulations. Worker health is not served by enforcing 40 year old
exposure limits. Workers in the United States deserve 21st century
protections.
I want to close by saying that I am saddened and a little
embarrassed to read in a press release on the Patton Boggs website that
the chairman of this subcommittee said ``The ACGIH is going to stop
writing the laws of this land, if it's the last thing I do on this
earth.'' \9\ Mr. Chairman, I ask you, do you want to be remembered in
the history books as someone who saved lives, who promoted the use of
good science to protect workers from developing cancer or lung disease,
so they could live long enough to play with their grandchildren, or as
someone who was instrumental in blocking public health agencies,
employers and endangered workers from using important scientific
information to prevent disease?
Thank you very much.
OSHA Standards Killed, Withdrawn or Delayed by the Bush
Administration\10\
Standards Killed
Ergonomics Standard (Killed by Congress under the Congressional Review
Act in March 2001)
Standards Withdrawn
PELs for Air Contaminants (Dec. 2001)
Metalworking Fluids (Dec. 2001)
Update and Revision of Flammable and Combustible Liquids Std. (Dec.
2001)
Process Safety Management of Highly Hazardous Chemicals (Dec. 2001)
Revision/Update of Mechanical Power Transmission Apparatus Std. (Dec.
2001)
Safety Standards for Scaffolds in Construction--Part II (Dec. 2001)
Safety and Health Programs for Construction (Dec. 2001)
Control of Hazardous Energy in Construction (Dec. 2001)
Consolidation of Records Maintenance Requirements in OSHA Stds. (Dec.
2001)
Oil and Gas Well Drilling and Servicing (Dec. 2001)
Update and Revision of Spray Applications (Dec. 2001)
Occupational Exposure to Perchloroethylene (Dec. 2001)
Sanitation in the Construction Industry (Dec. 2001)
Update and Revision of Woodworking Machinery Standard (Dec. 2001)
Ergonomics Programs in Construction (Dec. 2001)
Occupational Health Risks in the Manufacture/Assembly of Semiconductors
(Dec. 2001)
Indoor Air Quality (May 2002)
Scaffolds in Shipyards (May 2002)
Access and Egress in Shipyards (June 2002)
Accreditation of Training Programs for HAZWOPER (August 2002)
Safety and Health Programs for General Industry (August 2002)
Fall Protection in Construction (August 2002)
Glycol Ethers (Dec. 2003)
Occupational Exposure to Tuberculosis (Dec. 2003)
Standards Delayed
Payment for Personal Protective Equipment (Notice of proposed
rulemaking March 1999. Public hearing August 1999. Still in
final rule stage)
Assigned Protection Factors for Respirators (Notice of proposed
rulemaking June 2003. Public hearing January 2004. Post hearing
briefs end May 2004. Still in final rule stage)
Occupational Exposure to Crystalline Silica (On regulatory agenda since
1997. Now at prerule stage)
Occupational Exposure to Beryllium (On regulatory agenda since at least
2000. Now at prerule stage)
Hearing Conservation in Construction (On regulatory agenda since at
least 2002. Currently listed as long-term action)
Confined Spaces in Construction (On regulatory agenda since at least
2000. Remains at proposed rule stage since 2004)
ENDNOTES
\1\ I am testifying today on my own behalf, and am not representing
George Washington University or any other organization.
\2\ Michaels D, Monforton C. Manufacturing Uncertainty: Contested
Science and the Protection of the Public's Health and Environment. Am J
Pub Health 2005;95:Suppl1:S39-48. Available at http://
www.defendingscience.org/loader.cfm?url=/commonspot/security/
getfile.cfm&PageID=2406
\3\ Michaels D. Doubt is their Product. Scientific American, June
2005; 292:74-80. Available at http://www.defendingscience.org/
loader.cfm?url=/commonspot/security/
getfile.cfm&PageID=2372&CFID=8884749&CFTOKEN=35991257
\4\ Monforton C. Weight of the Evidence or Wait for the Evidence?
Protecting Underground Miners from Diesel Particulate Matter. Am J Pub
Health 2006; 96: 271-276. Available at: http://
www.defendingscience.org/case--studies/loader.cfm?url=/commonspot/
security/getfile.cfm&PageID=2631
\5\ International Agency for Research on Cancer (IARC). 2006.
``IARC Monographs on the Evaluation of Carcinogenic Risks to Humans:
Preamble.'' Lyon, France. Available at: http://monographs.iarc.fr/ENG/
Preamble/CurrentPreamble.pdf
\6\ Wilbourn JD, McGregor DB, Partensky C, Rice JM. 1997. ``Meeting
Report: IARC Reevaluates Silica and Related Substances.'' International
Agency for Research on Cancer; Lyon, France. Printed in: Environ Health
Perspect 105(7):756-759. Available at: http://www.ehponline.org/
members/1997/105-7/wilbourn-full.html
\7\ Norwood C. Opening statement before Subcommittee on Workforce
Protections of the U.S. House of Representatives' Committee on
Education and the Workforce. Hearing: ``Examining the Use of Non-
Consensus Standards in Workplace Health and Safety.'' 27 April 2006.
Available at http://edworkforce.house.gov/hearings/109th/wp/
acgih042706/osnorwood.htm
\8\ Michaels D, Monforton C. Scientific Evidence in the Regulatory
System: Manufacturing Uncertainty and the Demise of the Formal
Regulatory System. J Law Policy 2005;13(1): 17-41. Available at: http:/
/www.defendingscience.org/loader.cfm?url=/commonspot/security/
getfile.cfm&PageID=1709&CFID=8885296&CFTOKEN=44529282
\9\ Patton Boggs LLP. ``Alert: Congress Investigates Backdoor
Rulemaking.'' April 2006. Available at http://www.pattonboggs.com/news/
detail.aspx?news=245
\10\ Source: AFL-CIO Death on the Job: The Toll of Neglect. 15th
edition, April 2006. Available online at http://www.aflcio.org/issues/
safety/memorial/doj--2006.cfm
______
Chairman Norwood. Mr. Sarvadi, you are recognized now for 5
minutes.
STATEMENT OF DAVID SARVADI, ESQ., KELLER AND HECKMAN, LLP
Mr. Sarvadi. Thank you, Mr. Chairman, and thank you and the
committee for the opportunity to participate in this process. I
would ask that my written statement be entered into the record.
I wanted to just share with you some thoughts I had and
reactions to some of the testimony I have heard.
I think it is important to understand that the standards
that we are talking about that are set by national consensus
organizations are a very important part of American commerce
and a great contribution of our American history to the world.
All you have to do is remember what happened, all the confusion
that occurred back in the 1860's as the railroads were getting
started and people couldn't depend on what time the train would
come because there weren't uniform standards for the time that
was involved.
Similarly, not having uniform standards for the width of
the rails, there were problems in interchanging the railroads.
So we need to remember that standards that are generated by
consensus really facilitate our environment, our world, our
government, and our society. I think they are very important.
I disagree, though, with people who say that organizations
that meet in private should somehow be given the imprimatur of
government authority by the recognition through the rulemaking
that we have seen here, simply because they happen to be
scientists who meet and talk about these things.
The problem with the TLV committee today is that in fact it
is a secret process. You are not permitted to participate, and
you don't even know if the commentary that you provide to them,
which you are permitted to do, you don't even know if that
commentary is considered in any way.
I have personal experience with this organization. I
started out my career as an industrial hygienist more than 30
years ago. In that responsibility, I had a job where we had
chemicals that we manufactured where we took the information
that we paid to develop and gave it to the committee and asked
them to evaluate it and let us know what they thought the
standard should be.
I will admit that, at that time, we had great respect for
the committee and their deliberations, but we also knew that
our views would be considered and that we would have an
opportunity if we so desired to talk to the committee directly
as they were considering it.
More recently in the late 1990's, I represented a group
that wanted to do the same thing. Unfortunately, the committee
by that time had decided to close its doors. The committee
today operates without any input from outside parties. It
doesn't tell you whether or not they follow standard procedures
using the scientific method to develop the standards that they
have.
On that basis alone, the TLVs could not be admitted into
court under the Supreme Court's Daubert rule. You simply cannot
adopt and offer as evidence, as scientific evidence,
information where you cannot demonstrate it has been developed
using the scientific method, using recognized scientific
procedures and so on.
So we have a problem with the TLV committee as it is
presently operated. I understand very, very well what the
volunteers on this committee do. I applaud their willingness to
participate. One of my prior jobs, I worked as a researcher
under contract with the National Institute for Occupational
Safety and Health, and I was responsible for developing the
information and reviewing the literature on a group of
chemicals known as secondary and tertiary amines.
There were 9,000 references, a large number of which, more
than several hundred, were from the Russian literature, which
we had translated. I read every one. I had to summarize every
one. And I had to incorporate those summaries into a document
that was then reviewed by other scientists, both at the company
I work for and at NIOSH.
It is a time-consuming and difficult and nerve-wracking at
times job, but it is one that should be done. It cannot be done
solely by one individual or by a small group of individuals. It
has to be done by all parties who are interested and who have
important things to offer.
One of the difficulties with the way the TLV committee is
set up right now is if you happen to work in that industry, you
are essentially prohibited from participating in any
significant way in what is going on and in evaluating the
literature. And yet you may be the person who knows the most
about the chemical, about its impact on people, about the
difficulties associated with controlling exposures or the
unique characteristics of the chemical that make it important
to industry. So we end up eliminating the very people who have
the most knowledge about a subject from those deliberations.
I personally believe that is not the right way to go. I
think we ought to control bias by having opposing views on
either side. I think we ought to incorporate submissions by
agencies like the ACGIH, when we do it in a rulemaking. The
problem with the existing standard is that it incorporates
updates to the rule, to the TLVs, not the ones that were
adopted in 1983, and thus those of us who are really interested
and who may have specialized knowledge about it are precluded
from participating and validating the work that the TLV
committee does.
So with that, Mr. Chairman, I will stop and be happy to
take any questions.
[The prepared statement of Mr. Sarvadi follows:]
Prepared Statement of David G. Sarvadi, Esq., Keller and Heckman LLP
Good morning. Mr. Chairman, Members of the Committee, and invited
guests, thank you for the opportunity to participate in this important
proceeding.
My name is David Sarvadi. I am an attorney with the Washington,
D.C., law firm of Keller and Heckman LLP, and I am here to express
support for H.R. 5554, the Workplace Safety and Health Transparency
Act. I also have some suggestions to improve the bill. At Keller and
Heckman LLP, we represent and assist employers in meeting their
obligations under a variety of federal and state laws, as well as
international treaties and the laws of Canada, Europe, and many
countries of the Far East. In particular, we help clients maintain
progressive health and safety programs intended to protect their
employees in their workplaces, as well as to comply with national and
international health and safety laws and standards. The Occupational
Safety and Health Act is the primary focus of our compliance assistance
here in the U.S.
I am appearing in this hearing on my own behalf, and any views
expressed herein should not be attributed to my firm, my partners, or
any other entities, including any of our clients. I am here solely as a
person with a keen interest in the topic of occupational safety and
health.
First and foremost, this bill is important because it affirms an
important fundamental characteristic of modern American government:
that citizens affected by OSHA's regulations have the opportunity to
participate in the process that will determine the standard to which
they will be held. All of us benefit by such participation, and in my
experience, people all over the world admire and envy our open system.
The problem the bill seeks to correct is the result of an
acrimonious debate over alleged industry bias and influence in science
that has been going on for more than 25 years. Some see the solution in
attempting to completely eliminate bias by prohibiting participation by
individuals with certain characteristics, most notably an alleged
financial interest by being affiliated with an affected party, either
as an employee or as a consultant. The presumption is that people whose
financial support comes from public sources are free from undue
influence, an egregiously erroneous assumption.
Bias is a fact of life for all human beings. We all bring
individual experiences and prejudices, learning and judgments, to a
decision-making process, and while it is important to know about the
various interests that motivate participants, the best way to offset
bias is to have a transparent process where bias can exposed and
attacked, and its influence can be limited. That means an open,
transparent, and inclusive process must be the touchstone of public
policy, especially when it comes to science-based decisions.
Our judicial system, and to a certain extent, our legislative
system, seeks to obtain the best and most likely true result through
the competition of advocacy in an open forum. It is unclear to me why
some scientists think that such a process is inapt for applying
scientific judgment to public policy. Indeed, even ostensibly objective
scientists have their own biases, driven in part by the need to find
positive results so they can be published and funded in the future.
Worse, by excluding from the discussion people who have direct
experience in a particular area, we reduce the ability to understand
complex yet solvable problems. If we were to apply the current approach
to selecting people for various public policy scientific panels to our
personal lives, we would not, for example, ask a surgeon to advise on
the need for the surgery. Yet it is obvious that the surgeon as been
trained and has the specific experience we need to inform the judgment
inherent in all decisions that involve extrapolation and inference.
In the public policy realm, some scientists have even claimed to
find it necessary to be disingenuous to achieve their ``better''
objective. One such scientist was quoted as having to choose between
being honest and being effective! \1\ I do not believe that our public
policy is better because one group is more effective if their efficacy
is based on fundamental dishonesty. And who is to say that such a
scientist's view results in better public policy?
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\1\ ``[A]s scientists, we are ethically bound to the scientific
method, in effect promising to tell the truth. The whole truth, and
nothing but--which means that we must include all the doubts, caveats,
the ifs, ands, and buts. On the other hand we are not just scientists,
but human beings as well. And like most people we'd like to see the
world a better place, which in this context translates into our working
to reduce the risk of climate change. To do that, we need to get some
broad-based support, to capture the public's imagination. That, of
course, entails getting loads of media coverage. So we have to offer up
scary scenarios, make simplified, dramatic statements, and make little
mention of any doubts we have. This ``double ethical bind'' we
frequently find ourselves in cannot be solved by any formula. Each of
us has to decide what the right balance is between being effective and
being honest. I hope that it means both.'' But apparently honesty is
not an essential ingredient. Discover Magazine, October 1989, page 47.
Copy attached.
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We need to be vigilant about scientific misrepresentation. Dr.
James L. Mills, a researcher with the National Institute for Child
Health and Human Development, described the techniques as ``Data
Torturing'' and classified it as two types: Opportunistic, wherein
scientists manipulate standards of statistical significance in order to
create apparently valid results, and Procrustean, wherein the scientist
generates positive results by redefining exposure or other aspects of a
study to again create artificial results.
My own training and education includes a Master's of Science Degree
in Hygiene from the department of Occupational Health at the University
of Pittsburgh's Graduate School of Public Health, so I started life as
a budding scientist. Among my professors at Pittsburgh was Henry Smyth,
a world-renowned toxicologist and one of the founding members of the
American Conference of Governmental Industrial Hygienists (ACGIH) and
the Threshold Limit Value (TLV) Committee on Chemical Substances. I
received a law degree from George Mason University in 1986, and have
been a certified industrial hygienist since 1978. I joined Keller and
Heckman LLP in 1990. Since about the mid-1990s, I have been an
associate member of the ACGIH, and as such, have never had the
opportunity to vote on the adoption or creation of the TLVs.
My professional experience includes having worked as the Director
of Industrial Hygiene for a large company in the chemicals and allied
products industry, as well as a consultant while in law school. Early
in my career, I became familiar with the then current members of the
TLV Committee, including among them Herbert Stokinger, who was the
chairman and another giant of the profession to whom I looked for
guidance. The Committee's operation today bears little resemblance to
the collegial process and symbiotic relationship between industry,
academia, and government scientists that existed in the 1970s.
Indeed, at one point during that time, I initiated in my company
the petition to the TLV Committee to establish a standard for a
chemical that we manufactured, providing the Committee with all that we
knew about the chemical at the time. The information included, if
memory serves, information from animal studies that others in the
company had contracted with a testing laboratory to conduct. We
communicated with the Committee, and answered their questions and gave
our opinions. This was all done on an entirely voluntary basis, knowing
that the level established would be low, and that it would be a
challenge to meet the standard. But we felt we needed the assistance of
the Committee's expertise to validate our internal assessment through
the eyes of a group of experienced toxicologists.
In contrast to that experience, a few years ago, I represented a
trade association of industrial manufacturers who were directly
affected by several proposals that had been initiated by the TLV
Committee. We were more than a little surprised to find that the draft
documentation of the TLV proposed was literally awash with errors,
which we identified and brought to the attention of the full committee.
I personally read both the draft documentation of the proposed TLV and
all of the cited papers, with which I was very intimately familiar. The
errors were fundamental, including misrepresentations of what the
authors of the cited papers actually said, omitting relevant and much
more recent papers, and simply getting the entire subject wrong. We
prepared a reply to the Committee, pointing out the errors, directing
their attention to the more recent papers, which we had previously
submitted to the Committee, and asked for an opportunity to present our
views. We received an acknowledgement that our submission had been
received, but every attempt to seek an audience with the committee to
present our views, and to discuss the issues, was rejected, and we
never received a response to the specific criticisms we made. This is
not the kind of process designed to instill confidence that a fair
hearing of one's views will result.
I believe that this experience, and that of others with which I am
familiar, along with the avowed position of the ACGIH that it is not a
consensus organization and does not purport to conduct its TLV reviews
in compliance with the fundamentals of due process, means that neither
OSHA nor any other government agency or organization, including the
courts, should any longer rely in any way on the recommendations of the
Committee. I in no way want to comment on the integrity of the
individual Committee members, as I know what it means to be a committed
volunteer in an effort like this. But long experience in many other
fields has shown that open, transparent processes uniformly produce
better and more acceptable results than private negotiations among
insiders in the back room. Trust is a fleeting commodity, and its loss
imposes long term costs. Renewing it requires a willingness to let all
of one's actions and decisions to be examined in excruciating detail,
and ACGIH has been unwilling to pay the price for renewed confidence in
their procedures and practices.
Note that the TLVs are not subject to any kind of peer review
process. If the TLV Committee decided to submit the Documentation as a
paper to a peer-reviewed journal, at least the patina of third party
review and objectivity would exist. In the present system, we simply do
not know whether the person or persons who prepared the papers have any
relevant qualifications, whether they actually read the papers they
summarized and cited, or had inherent bias that was not countered by
controls or systems in the Committee process. My more recent
experience, and that, I understand, of others, is that the current
situation at the Committee is unreliable, and in the absence of
transparency and openness, cannot be repaired. The attitude is simply
one of ``trust us, we're scientists.'' This is not sufficient.
I know what an effort it is to perform the kind of literature
review that the development of an occupational health standard entails.
In one of my former positions, I was the principal author under a
contract with the National Institute for Occupational Safety and Health
(NIOSH) working on a criteria document on a group of chemicals called
secondary and tertiary amines. There were over 9000 published
scientific papers, including a large number from the Russian literature
that we had translated, and I read every one. My job was to prepare the
summaries of the papers, and to synthesize, under the supervision of
Ph.D.s and NIOSH scientists, the summary of the toxicity of those
chemicals. The objective of the criteria document was to establish safe
levels of exposure, along with information on methods of control and
other technical issues. So I feel that I understand, perhaps better
than other witnesses, both the scope of the task and its difficulty. I
also understand how important it is to get it right.
There is an equally important aspect that OSHA recognition of the
TLVs and other similarly developed positions creates. The imprimatur of
governmental recognition and sanction via recognition in OSHA standards
and in its rulemaking processes gives undue authority to the
pronouncements of essentially private individuals, possibly far above
what the scholarship that goes into preparing such documents would
otherwise warrant. For example, in part because of OSHA's sanction of
the TLVs as potentially authoritative, experts can rely on those
standards in testifying in court. If the reliance on these standards is
misplaced because they are based on biased, factually wrong, and
inherently unreliable analyses, how can a fair result obtain? These
standards find themselves in wide use in just this way in proceedings
in court, at the state level in setting air quality standards, and so
on, in spite of the ACGIH disclaimer that they are not to be used as
legal standards denoting safe from unsafe environments.
It is not that there are not viable alternatives. Several
organizations, including the American Society for Testing and Materials
(ASTM), American Industrial Hygiene Association Workplace Environmental
Exposure Limits Committee, and several American National Standards
Institute (ANSI) committees purport to adopt standards in an open,
consensus-based process. Yes, it is expensive and takes time. But good
work always does. Coupled with the nature of the ACGIH and other like
organizations' penchant for secrecy, we can no long afford the luxury
of allowing OSHA to rely on non-consensus organizations. Thus, I
strongly support the proposed statutory change, with some suggestions
for improvement.
I believe that this proposal would allow OSHA to rely on consensus
standards more fully, so long as it follows its normal rulemaking
procedures under section 6 of the OSH Act. The statute already requires
OSHA to justify deviating from consensus standards when it adopts
standards on the same topic. This language would complement section
6(b)(8) by requiring OSHA to acknowledge and identify true consensus
standards organizations and bodies, so that both OSHA and the regulated
community can have faith in the standards OSHA adopts. Essentially,
this bill merely says that Congress was serious when it spelled out
which groups can wear the label of a ``consensus'' organization.
Note that OSHA is not permitted under current regulations governing
the Federal Register to incorporate by reference updated versions of
standards from third parties. Were OSHA to update the incorporated
standards, it would need to do so in a rulemaking. Provided that the
standards setting organization maintained its commitment to due
process, a presumption in favor of the standard might be warranted, and
the rulemaking could be abbreviated. I can provide specific language at
a later date if the Subcommittee so desires.
I have reviewed the specific language of the bill, and find that
the proposal is essentially sound. The one potential pitfall that needs
to be addressed is to prevent OSHA from allowing superficial
conformance with consensus procedures, when in fact the effort was
anything but a good faith effort to involve all who might have an
interest in participating. There are examples of such failures.
A good example was the unfortunate effort by the American National
Standards Institute (ANSI)-sanctioned Z-365 Committee on Upper
Extremity Disorders. After more than ten years of activity, the
failures of the Committee and the secretariat to meet rudimentary
consensus standards--publication of minutes of the meetings,
inappropriate classification of members as to representation,
inadequate representation of interests on subcommittees and review
panels, among others--the ANSI Executive Standards Council ordered the
secretariat to review the record for compliance with ANSI policies and
procedures on representation, participation, appeals of committee
decisions, and other procedural irregularities. Those failures led the
Executive Standards Council to require that the first standard
submitted by the Committee be subject to an audit by ANSI, according to
the procedures outlined in the letter to the secretariat.
This points up the need for OSHA to be sure that any finding it
makes be based not on a superficial review of nominal procedures, but a
finding that in fact the procedures protecting due process have been
followed, and that all interested parties have, in fact, been heard.
People who have been excluded from such processes need to be able to
raise their objections to OSHA to assure more than nominal compliance.
It is good that the language of the bill in section 6(a) makes the
action of the Secretary final agency action, the basis of which would
be published in the Federal Register. This is a necessary and proper
step to assure that the Agency has made a good faith effort to assure
compliance with consensus procedures and concepts. I would suggest some
relatively important but in my view minor revisions to the language.
In section 6(a), I would add the words, ``rely on,'' between
``promulgate or incorporate'' in the first sentence. Standards or other
scientific documents prepared by private organizations should have no
more standing than their inherent persuasiveness warrants.
The language in the bill that would apply these same standards to
state plans under section 18 of the OSH Act is equally important, but
perhaps it should be clarified that it would apply similarly only to
standards the states adopt that are developed by third parties. Many
states now adopt the TLVs as update Permissible Exposure Limits (PELs)
by rulemaking, without understanding or investigating the underlying
rationale for the standard.
Employers are not simply seeking standards that are lenient. As I
mentioned above, many employers for many years have sought to ``do the
right thing'' by participating in the process of developing consensus
standards and then adopting them. Indeed, nearly all of OSHA's early
standards were derived from consensus standards that had been adopted
by progressive employers over the previous 50 years. But if OSHA and
MSHA or other agencies are going to rely on those standards as a
substitute for rulemaking, then there needs to be real openness,
transparency, and opportunity for real an effective participation by
all affected parties.
No one can force ACGIH to conduct its Committee work in an open
process, nor should we attempt to do so, so long as the Committee's
work product is not used to establish legal limits on behavior.
Likewise, other organizations, such as the International Agency for
Research on Cancer (IARC), whose proceedings are closed, must have
their work product subjected to the test of public review and comment
before government agencies use them to impose sanctions and standards
of care.
Thank you for the opportunity to make my views part of the record.
I look forward to taking any questions you might have.
______
Chairman Norwood. Thank you very much.
Tell me, following up on exactly what you said, because I
totally agreed with what you said, there is nothing wrong with
having the opinion, for example, and this is Charlie's view, of
the American governmental hygienists. There is nothing wrong
with that.
What is wrong with it, it seems to me, is that is the only
opinion that OSHA takes in. Why couldn't OSHA listen to what
they have to say? Don't question it; maybe it is valid; maybe
it's not, but nobody knows other than some people over at OSHA.
What is wrong with everybody having input into this
rulemaking process?
Mr. Sarvadi. Actually, Mr. Chairman, I think that is what
we are required to do under the law in the United States.
Chairman Norwood. Thank you. I do, too.
Mr. Sarvadi. I agree with you that the people at the ACGIH
as a group, as a committee, have every right to participate in
the rulemakings and make their views known, present their
views, and defend their views.
Chairman Norwood. Yes.
Mr. Sarvadi. And they should. At the same time, we should
not give their views undue influence or undue deference because
of the fact that they are not telling us how they go about it.
Chairman Norwood. When OSHA incorporates their views, they
are the only ones that have an opinion. Aren't they?
Mr. Sarvadi. Absolutely. You have no opportunity to
question the conclusions that the committee reaches, and worse,
OSHA's imprimatur gives the committee a patina of believability
and credibility.
Chairman Norwood. Yes, it does.
Mr. Sarvadi. It is undeserved at this time. Unless they are
able to defend their views in the open debate on the science
that is involved, I don't believe that they should be given any
credibility whatsoever, just as I should not be given any
credibility if I am not willing to make my views known publicly
and to defend them in an open forum.
Chairman Norwood. Well, two of you, I think, are attorneys.
Is that correct? You are not, Mr. Casper?
Mr. Sarvadi. I am, Mr. Chairman.
Chairman Norwood. What actually happens when you go into
court as a defendant on this kind of thing? What does the
plaintiff do, having considered that you have a rule that has
been incorporated by reference, and you are going into court
over that subject?
Mr. Sarvadi. In most states, Mr. Chairman, there is not an
absolute recognition of an OSHA standard as a per se rule of
negligence. Typically, most states allow introduction of
standards like OSHA standards as evidence that can be
considered by the trier of fact as to whether or not there has
been negligence of the duty that the defendant would owe to the
plaintiff.
More importantly, though, in the context of the rulemakings
and court proceedings is the fact that the TLVs are given
credibility so that expert witnesses who are testifying can
point to the TLVs as evidence of safe or unsafe circumstances
without having to demonstrate that in fact the TLVs are based
on accurate and reliable information.
Consequently, we end up, for example, in my experience with
one group of clients that I had that were affected by a TLV, I
asked the engineers how that would affect the decisions that
they made going forward in designing the equipment and the
facilities and making changes in work practices for their
employees as a result of the change in the TLV.
The answer was the change in the TLV would result in
setting a new lower standard that they would follow because of
the potential use of the TLV in litigation in the future.
Rather than simply setting it at the TLV, the engineer uses a
fraction of the TLV, either a quarter or half of the TLV, as
the design standard because if you don't design to a lower
level, the normal variation that occurs in equipment and
operations can result in a higher exposure.
The downside risk of having any exposure above the TLV or
the PEL, whatever the standard may be, is so great that the
engineers will in fact design to a lower standard so as to be
sure not to exceed that level.
Chairman Norwood. So these TLVs are used time and time
again in the courtroom by expert witnesses?
Mr. Sarvadi. Yes, sir, they are.
Chairman Norwood. Just real quickly--and last question, Mr.
Casper--to what extent does the fear of private litigation
impact your members' decisions to go beyond updating MSDS
sheets to reflect updated TLVs? Does the fear of private action
drive your members to adjust their operations even when there
may be no concrete scientific basis for action? Can you
describe that?
Mr. Casper. Mr. Chairman, I cannot describe what our
members consider as far as fears of litigation are concerned.
What I can say is the fears that we all have when we look at
the possibility of tightening of the permissible exposure limit
for silica, for instance. In the event that it is not called
for that by OSHA, presumably, it would not be rooted in good
science.
What we anticipated would happen when we looked at this in
2003 when OSHA floated its ideas on a possible new silica rule,
was that we would see a number of plants probably having to be
shut down because of anticipated costs to comply with the new
rule that would perhaps reduce the silica PEL down perhaps to
.05 milligrams per cubic meter squared.
The prospect of shut-down plants would mean not only more
layoffs in the industry, more workers losing their jobs, but
also a further tightening in consumer access to brick products
to put on their new homes.
Chairman Norwood. Why would you shut down? What were you
scared of?
Mr. Casper. Because of the incredible costs; because of
what we foresaw would be very significant costs from a very
bad, aggressive OSHA rulemaking that would include a reduced
PEL, perhaps down to .05.
Chairman Norwood. Would it be cost of litigation or is it
cost of changing your operation?
Mr. Casper. Operations changes. I can't speak to the
litigation side.
Chairman Norwood. OK.
Mr. Casper. But as far as operations are concerned, for
instance, very expensive engineering controls, the utility of
which in terms of being able to get the exposure limit down to
.05 is not necessarily even certain. The costs of that would be
significant, and in some cases we anticipated, given how little
information OSHA shared with us when they came out with that
draft rule in the fall of 2003, would have resulted probably in
the shutdown of a number of our plants.
Chairman Norwood. Mr. Owens, you are now recognized for
questions.
Mr. Owens. Dr. Michaels, you described the situation as a
possible public health crisis. I alluded to Nero and fiddling
in Rome before. Is our government in the position of Nero
fiddling while the water and the equipment to put out the fire
is there, but we are not willing to use it; the apparatus of
government is not in place to take advantage of the science
that exists.
That is a gap which is a moral issue, it seems to me.
People will be dying in larger numbers if we don't use some
kind of standard, and the knowledge exists. The implication is
that only after OSHA has gone through its proper procedures
should we use standards.
Are we willing to beef up the staff of OSHA with the
expertise that is needed, no matter what it costs, in order to
facilitate the rapid utilization of new knowledge to protect
people from death and injury?
Dr. Michaels. Mr. Owens, you raise a good concern. I am not
an attorney, but my reading of this law is not that it merely
stops OSHA from referring to recommendations made by
organizations where there is a decision made without the input
of impacted industries, but it actually says that unless the
impacted industry agrees, essentially comes to a consensus, you
can't use it, which means the national toxicology program, for
example, which is a very important program run by the National
Institute for Environmental Health Sciences, which has public
hearings to designate carcinogens.
It has designated, for example, beryllium as a carcinogen.
The beryllium industry doesn't agree. Well, shouldn't that
information be given to workers and to the public? I think it
is very important. If there is a concern here about
organizations that don't accept the input of impacted
industries, that is worth discussing, but this is written so
broadly that we essentially bar OSHA from using information
from a wide range of scientific organizations that are bringing
the newest science out. I think that really is problematic.
Mr. Owens. Dr. Sarvadi, you seem to be the voice of
reasonable compromise here. Would you be willing to give us an
estimate as to what H.R. 5554 needs in order to carry out the
appropriate merger of private science with governmental
oversight in hearings and regulation? H.R. 5554 does not
provide any appropriation that would facilitate new staffing.
Would they be able to do the kind of thing that you think
should be done?
Mr. Sarvadi. Actually, Mr. Owens, I do think that they
could do it with the present system. There is an example.
Mr. Owens. Present staff?
Mr. Sarvadi. Yes, with the present staffing. There is an
example already in place at OSHA called the Nationally
Recognized Testing Laboratory System. Under that regulation,
organizations apply to OSHA to become recognized as a
laboratory for purposes of testing for compliance with in fact
third-party standards like ANSI standards on electrical safety.
That is just one example. There are many others.
In that process, OSHA actually goes through a rulemaking to
determine whether or not the organization has the resources and
the procedures in place in order to be qualified as a testing
laboratory. I could see a similar parallel system set up where
OSHA would vet organizations who purport to put forward
consensus standards and qualify them in one way or another as
consensus organizations.
And then subsequently in a rulemaking, if OSHA wanted to
rely on that standard, they would be able to point to the fact
that they have qualified this organization in advance, and then
subject that organization to objections by interested parties
if the organization had deviated from those procedures in the
past.
Mr. Owens. So that OSHA has no excuse for the great delay
in facilitating rulemaking on many of these issues?
Mr. Sarvadi. I am sorry. I didn't quite catch that.
Mr. Owens. The number of standards that are left hanging
out there, they have not been dealt with. Rulemaking is not
taking place, and yet dangers have been certainly highlighted
by scientists. There is a great delay. Are you saying that
there is no excuse for that? That OSHA has the resources and
the staff to move?
Mr. Sarvadi. I would take issue with the suggestion that
somehow OSHA has not adopted a great number of standards that
are somehow missing in the workplace. Mr. Kucinich read a list
of standards that have been removed from OSHA's agenda a few
minutes ago.
One important thing to remember about the list that he read
is that there are in fact standards in place right now that
OSHA does enforce on a daily basis that affect nearly all of
those subjects that he referenced. So the question isn't
whether we have standards. It is whether the standards that we
have in place are sufficient and whether we need to enhance
those.
Mr. Owens. I already submitted a list for the record, which
is quite long, which I won't go into at this point. Mr.
Kucinich just touched the surface, really.
I would like to know from you, Dr. Michaels, what are cases
that you cite. You said there were two cases lost in court. Can
you explain the facts of that?
Dr. Michaels. The various industries, and I will have to
provide this to the record, but various industries have sued
the ACGIH, the American Conference of Government Industrial
Hygienists, because essentially it claimed to act like a
governmental body without having their governmental function.
My understanding is both those cases were lost in the
court, and the ACGIH continues top be able to put out
recommendations, because all they do is put out
recommendations. How OSHA or others use those recommendations
is up to OSHA and those organizations.
The ACGIH is an organization, as Mr. Sarvadi said, of
volunteer scientists who work very hard and do the best job
they can and make a tremendous contribution. It is a shame that
there is an effort to essentially both put them out of the
business and to make sure that OSHA doesn't use them.
Mr. Owens. For the record, you don't know what those cases
are?
Dr. Michaels. I didn't bring the information with me, but I
could certainly provide that for the record.
[The information referred to follows:]
School of Public Health and Health Sciences,
The George Washington University,
Washington, DC, July 10, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: Thank you for your request to provide
supplemental testimony for inclusion in the record for the June 14,
2006 legislative hearing on ``Addressing the Concerns about the U.S.
Department of Labor's Use of Non-Consensus Standards in Workplace
Health and Safety.''
You have requested information regarding lawsuits involving the
American Conference of Governmental Industrial Hygienists (ACGIH). I
have attached two documents that contain information on litigation
pursued by the Patton Boggs law firm against the ACGIH:
1. A page from the July 22, 2004 issue of ``Brick News Online,'' a
publication of the Brick Industry Association (BIA). The article states
that ``BIA has been asked to help fund litigation to stop a non-profit
group [the ACGIH] from establishing a new, unsupportable limit on
employee exposure to respirable silica'' and notes that a BIA
subcommittee asks ``member companies to consider becoming a plaintiff'
in the litigation. The article goes on to assert that the ``effort is
being led by Henry Chajet, an attorney at Patton-Boggs (sic), who is
soliciting interested companies and industries. Estimated costs for
2004 are $570,000.''
2. Information I have compiled on two lawsuits pursued by clients
of the Patton Boggs law firm against the ACGIH.
Thank you for the opportunity to add these materials to the
legislative record.
Yours very truly,
David Michaels, Ph.D., MPH,
Director, the Project on Scientific Knowledge and Public Policy,
and Research Professor and Acting Chairman.
BIA Members Can Participate in Lawsuit to Bring Some Common Sense to
Federal Rulemaking
For those interested, here's an opportunity for boosting fairness in
OSHA rulemaking
BIA has been asked to help fund litigation to stop a non-profit
group from establishing a new, unsupportable limit on employee exposure
to respirable silica. The EH&S health and safety subcommittee discussed
this, and asks BIA member companies to consider becoming a plaintiff in
legal action seeking to force an injunction against the American
Conference of Government Industrial Hygienists (ACGIH) over its
substantial role in issuing a new threshold limit value for silica.
ACGIH is a non-government entity heavily relied upon by agencies
such as the U.S. Occupational Safety & Health Administration (OSHA) in
making critical scientific determinations underlying comprehensive new
rules for issues such as silica exposure. ACGIH refuses to abide by
standard practices such as adherence to Federal data quality mandates,
employ risk assessment, or submit its work to independent peer review.
This failure risks putting regulated industries at a substantial
disadvantage when new Federal rules are developed.
Nevertheless, ACGIH findings are typically incorporated into
regulations issued by OSHA and other agencies. Several years ago ACGIH
determined that the permissible exposure limit (PEL) for silica should
be cut from the current level of 100 micrograms per cubic meter of air
down to 50. More recently, ACGIH expressed interest in further slashing
that level to 25 micrograms per cubic meter of air. In all likelihood,
implementation of these new levels would have an adverse impact on the
brick manufacturing industry. At a time at which many observers believe
that ACGIH's practices need to be reigned in, it appears that this
litigation effort is a suitable place to start.
The possible next step in this important effort would be the filing
of a temporary restraining order against ACGIH.
This effort is being led by Henry Chajet, an attorney at Patton-
Boggs, who is soliciting interested companies and industries. Estimated
costs for 2004 are $570,000. Several BIA member companies voiced
interest in contributing to the effort. BIA is not in a position to
make a financial contribution at this time.
BIA is requesting you consider contributing to this ambitious
undertaking at bringing some common sense reform to the development of
Federal rules that dramatically impact the costs of manufacturing
brick. Companies interested in participating should contact Joseph
Casper at (703) 674-1545 / [email protected]
Additional information about litigation filed against the American
Conference of Governmental Industrial Hygienists (ACGIH) by
clients represented by the law firm Patton Boggs
I am aware of at least two lawsuits filed against the American
Conference of Governmental Industrial Hygienists (ACGIH) by clients
represented by the law firm Patton Boggs. The following information
about these cases was obtained using the Federal Administrative Office
of the Courts PACER system.
1. Anchor Glass, et al v. ACGIH; Case No. 5:00-cv-00563-DF; Filed:
December 1, 2000 in US District Court Middle District of Georgia.
Plaintiffs: Anchor Glass Container Corporation; FMC Corporation;
Solvay Minerals; The General Chemical Group, Inc.; Wyoming Mining
Association; OCI Chemical Corporation. Plaintiffs' Counsel: Patton
Boggs LLP Harris and James, LLP.
Defendants: American Conference of Governmental Industrial
Hygienists; Elaine Chao, Secretary of Labor; Tommy Thompson, Secretary
of Health and Human Services (HHS); Alexis Herman, Secretary of Labor
(applicable when case was filed in December 2000); Donna Shalala,
Secretary of HHS (applicable when case was filed in December 2000).
Defendants' Counsel: US Department of Justice; Hall, Bloch, Garland
& Meyer, LLP Jones, Cork & Miller, LLP.
Description of the Case: The records for this case were ``sealed''
as part of a confidentiality agreement. This makes it particularly
difficult for the public to investigate independently the specific
claims made against the ACGIH by the Plaintiffs. I have been able to
learnt the history of the case, including the Plaintiffs' request for a
temporary restraining order against the ACGIH, the US Department of
Labor (DOL) and the US Department of Health and Human Services (HHS)
with respect to a proposed threshold limit value (TLV) for sodium
sesquicarbonate (also known as trona.) When the ACGIH (Defendant)
agreed not to publish (prior to October 27, 2001) a new TLV for trona,
the Plaintiffs withdrew their motion for a temporary restraining order
from US District Judge Duross Fitzpatrick's order, dated April 4, 2001.
Less than one month later, the Plaintiffs went back to federal
court to file additional complaints against ACGIH, DOL and HHS,
including a request for ``declaratory and injunctive relief to prevent
Defendants from promulgating, adopting, using, publishing, relying
upon, or enforcing a TLV for trona * * * '' ' The Plaintiffs made a
number of claims against the ACGIH, DOL and HHS; some were dismissed by
the Court (e.g., unconstitutional delegation of authority, failure to
follow statutory rulemaking procedures) others were allowed (e.g.,
demonstrating standing, stating a claim.) While discovery was ongoing,
the parties decided to settle the case.
2. International Brominated Solvents Assoc, et al v. ACGIH; Case
No. 5:04-cv-00394-DF); Filed: November 17, 2004 in US District Court
Middle District of Georgia.
Plaintiffs: International Brominated Solvents Association Aerosafe
Products, Inc.
Plaintiffs' Counsel: Patton Boggs LLP Harris and James, LLP.
Defendants: American Conference of Governmental Industrial
Hygienists Elaine Chao, Secretary of Labor; Tommy Thompson, Secretary
of Health and Human Services (HHS).
Defendants' Counsel: US Department of Justice; Galland, Kharasch,
Greenberg, Fellman & Swirsky Greenberg Traurig; Jones, Cork & Miller,
LLP.
Description of the Case: The Plaintiffs filed their original
complaint in November 2004, seeking ``declaratory and injunctive relief
to prohibit the ACGIH * * * from considering, creating, publishing,
promulgating, adopting, using, or recommending TLVs'' for n-propyl
bromide (nPB), copper, silica and diesel particulate matter'' and
prohibiting DOL and HHS from ``allowing their officials and employees
to seek, suggest, use, adopt, rely upon, promulgate, or enforce TLVs''
for these same substances. The Plaintiffs claimed, among other things,
that ACGIH, DOL and HHS violate the Administrative Procedure Act (APA)
and the Federal Advisory Committee Act (FACA), do not disclose TLV
authors, credentials or conflicts of interest, and act in secret. The
Plaintiffs filed a motion for a temporary restraining order to prevent
ACGIH from ``considering, creating, publishing, promulgating, adopting,
using, or recommending a TLV'' for these substances. On November 26,
2004, federal district judge Hugh Lawson denied their request.
As the case continued, the Plaintiffs continued to assert that
ACGIH, DOL and HHS violated FACA. In March 2005, federal judge Duross
Fitzpatrick again dismissed these claims, along with the Plaintiffs'
assertion that ACGIH is an agency subject to the Administrative
Procedure Act. The Court ruled, however, to allow the Plaintiffs' case
to move ahead, with respect to DOL's reference to ACGIH's TLVs and the
Plaintiffs' assertion that these remains subject to judicial review
under the APA. The judge noted, this ruling ``says nothing about
whether the federal defendants have acted unlawfully, nor does it
otherwise speak to the merits of the APA claim. Rather, it merely
constitutes a threshold finding by the Court that Plaintiffs may
proceed to discovery on this claim.''
______
Mr. Owens. We would appreciate that, so provide it for the
record. We have a number of cases, and we don't know which one
you are referring to. You were referring to factual
information, though.
Dr. Michaels. Yes.
Mr. Owens. It was not something that was conjured up for
some partisan reason.
I have no further questions at this time, Mr. Chairman.
Chairman Norwood. Thank you, Mr. Owens.
Mr. Sarvadi, can you talk about those two cases?
Mr. Sarvadi. I can talk about the first of the two cases as
having been settled. That was a case that involved the
refractory ceramic fibers industry and a couple of other
industries. The case in fact was settled by agreement in which
the committee, the TLV committee, withdrew, if I remember
correctly, the TLVs that were affected on the grounds that they
had not done an adequate job of substantiating the positions
that they had taken.
The current case, there is one other case that is currently
underway. I believe discovery is nearly completed. There have
been some preliminary rulings in the case involving ACGIH that
have gone in favor of the organization. The case is still very
much alive, and turns on the question of whether or not these
opinions which in some sense may be seen to disparage products
manufactured by various interests, are in fact protected in
some way or in fact open the committee and the ACGIH up to
legal liability for not having done an adequate job on the
science.
So that case still is proceeding. The stage it is at is
that I believe they have finished discovery and are in the
process right now of deciding what the next step will be.
Chairman Norwood. Are those the same two cases that Dr.
Michaels just said were lost?
Mr. Sarvadi. I believe they are. Those are the only two
cases that I know of where the ACGIH was sued by private
organizations over the quality of the work or the nature of the
TLV.
Chairman Norwood. Well, let the record show that, that
those cases are not lost.
Dr. Michaels. Can you cite the cases? Do you have a
citation for the cases?
Mr. Sarvadi. No, but I can certainly provide it for the
record.
Chairman Norwood. Mr. Sarvadi, would you provide us
information regarding those two cases for the record?
Mr. Sarvadi. Yes, sir. I will.
[The information referred to follows:]
Keller and Heckman LLP,
1001 G St. NW,
Washington, DC, July 12, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: Thank you for your letter and kind words. As
you requested, I am providing you with information regarding the two
lawsuits referenced during the June 14 legislative hearing that concern
the standard setting procedures of the American Conference of
Governmental Industrial Hygienists (``ACGIH''). In fact, there have
been three lawsuits, beginning with the case of Refractory Ceramic
Fibers Coalition, et al., v. American Conference of Governmental
Industrial Hygienists, Inc., from the United States District Court for
the Northern District of Georgia. The other two are Anchor Glass, et
al. v. American Conference of Governmental Industrial Hygienists, et
al. and International Brominated Solvents Association, et al. v.
American Conference of Governmental Industrial Hygienists, et al. The
last is still in litigation.
The Refractory Ceramic Fibers Coalition (``RCFC'') filed suit
against ACGIH in December 2000 based on its concerns about the TLV for
refractory ceramic fibers, which suit was settled after a ruling by the
judge that the TLVs were an exercise of free speech by the Committee
and could not be made subject to prior restraint. However, the judge
had not dismissed the underlying claim, based on defamation, against
ACGIH, and that led to the settlement. As part of the settlement, ACGIH
released a statement to clarify the meaning of its Threshold Limit
Value (``TLV'') for refractory ceramic fibers (``RCF''), which speaks
to the meaning of its TLVs in general.
A copy of the statement from the ACGIH can be found at http://
www.acgih.org/Resources/press/rcfcrelease.htm. Overall, the statement
emphasizes that ACGIH's TLVs are not intended for use as legal
standards, as relative indices of toxicity, and that they should only
be applied by persons trained in the discipline of industrial hygiene.
ACGIH also agreed to review new data being prepared by the RCFC. The
TLV was withdrawn. The RCFC has a website, www.rcfc.net, but no
particular information about the suit was apparent when I checked it
out.
The other two cases are also from the United States District Court
for the Middle District of Georgia, and are very similar in nature and
are being heard by the same judge. The first case, Anchor Glass, et al.
v. American Conference of Governmental Industrial Hygienists, et al.,
was settled between ACGIH when it ceased to be a party to the case on
September 21, 2001. The case was dismissed with prejudice on February
7, 2002.
There was significant discovery in the case that supported the
conclusion that ACGIH's TLVs in question were not adequately grounded
in the underlying science and were not reviewed. Significantly, ACGIH
withdrew the TLV at issue and published a notice stating that there
were no health effects to support the TLV. Because the plaintiffs
claimed that they had been promised a chance to submit data that were
in development before the TLV was to be finalized, but which promise
was not fulfilled, ACGIH also stated that its Subcommittee chair for
the substance in question had acted improperly. Other provisions of the
settlement cannot be disclosed.
The other case, International Brominated Solvents Association, et
al. v. American Conference of Governmental Industrial Hygienists, et
al., is still active. Discovery was to be completed by June 30, 2006
and dispositive motions are due on July 17. The Plaintiffs filed suit
against the Defendants (ACGIH and federal defendants) in November 2004
to prevent the adoption and enforcement of TLVs for four chemical
substances: silica, copper, n-propyl bromide, and diesel particulate
matter. In essence, the Plaintiffs challenge the way ACGIH adopts TLVs,
and further challenge the acts of federal defendants who rely on those
TLVs.
The Plaintiffs are seeking declaratory and injunctive relief, as
well as damages for anticipated reductions in profits, increased
regulatory costs, and increased litigation exposure. They moved for a
temporary restraining order to prevent ACGIH from approving the TLVs in
question, but that motion was denied. ACGIH filed a motion to dismiss
in response to each complaint, which was granted in part and denied in
part. The Defendants then filed a Motion for Reconsideration, which was
denied. As a result of the Court's rulings, the Plaintiffs are entitled
to proceed with their APA claim against the federal defendants (Elaine
Chao, Secretary of the U.S. Department of Labor, and Michael O.
Leavitt, Secretary of the U.S. Department of Health and Human Services)
and their claim against ACGIH for violations of the Uniform Deceptive
Trade Practices Act (``UDTPA'').
The Plaintiffs state four claims.: (1) the TLVs in question were
adopted by ACGIH and enforced by the federal defendants in violation of
federal and state law, so the lawsuit seeks to enjoin their adoption
and enforcement; (2) none of the information provided by the public is
considered in the decision to adopt a final TLV, even though the ACGIH
invites public comment; (3) the TLVs are false and deceptive because
they are not supported by credible science; (4) and that undisclosed
ACGIH members draft the TLVs in secrecy.
The Plaintiffs' claim against ACGIH for violations of Georgia's
UDTPA is that ACGIH, by adopting TLVs that were not scientifically
justified, engaged in deceptive trade practices. The Plaintiffs' APA
claim against the federal defendants is that they wrongfully relied on
and enforced ACGIH's TLVs because they were a ``tainted work product.''
It will be interesting to see how this case turns out.
I hope this information answers your questions and provides
background on the continuing controversy over the role of the ACGIH in
our public regulatory process. As always, should you have any further
questions, please do not hesitate to contact me.
Respectfully submitted,
David G. Sarvadi,
Keller and Heckman LLP.
______
Chairman Norwood. Mr. Sarvadi, ACGIH has a disclaimer
saying, you know, we have put these out, but don't worry, we
are not responsible or we are not going to take responsibility
for them. How can we reconcile that disclaimer with the fact
that these standards are becoming Federal law or Federal
regulation? I don't understand that.
Mr. Sarvadi. I think that the actual result of the
disclaimer was an attempt by the organization to distance
itself from the regulatory process. That disclaimer has been
around for a long time. Prior to the adoption of the
Occupational Safety and Health Act, the TLVs were in fact
adopted as legal limits under the Walsh-Healey Public Contracts
Act. There were some state organizations that did the same
thing.
I think it is important to recognize that the committee did
not view and does not view the TLVs as arbitrary safe/unsafe
limits; that there is a considerable amount of judgment
involved in deciding how to apply the TLVs in the occupational
setting. The rest of the disclaimer is that that should be done
by professional industrial hygienists who understand the way in
which they are derived and the basis.
The problem we have today is not that the TLVs could not be
used effectively. The problem is that we don't understand how
the TLVs are developed. There are too many examples anymore of
TLVs where the underlying scientific work, to just be blunt
about it, was shoddy. I have personal experience with one case
involving that.
Chairman Norwood. Tell me how that affects clients when
that happens?
Mr. Sarvadi. Well, it affects the clients directly because
they have to change their operations. They have to communicate
to their customers about the TLV through the MSDS. And they
have to encourage their customers to try to comply with the
TLV. Now, some will argue that the TLV being out there, even if
it is wrong, if it is low, it is not going to cause anybody any
harm because employees will be protected.
I think it is important to understand that in any situation
where we impose a standard on an employer or a company, it is
the employees and the employer who have to pay for those
changes that are to come about, and employees get less in the
way of wages or benefits or other compensation as a result of
having to make that kind of investment.
So we should always make sure in my view that whatever
standards we impose are well worth the effort because we are
actually making decisions for other people about how they
should spend their livelihood and their time. I think that is a
decision that they should make, and not us.
Chairman Norwood. Well, I agree with you that there have to
be standards. There is no question about that. That is not part
of what this is all about. However, the standards that we set
that affect people's lives positively and negatively, by the
way, really need to be done out in the open. That is really all
we are talking about here.
We are not even talking about not hearing from the
governmental hygienists. We are happy to have their thoughts on
the matter, but there is no reason that should become law made
by people that are not elected officials and are actually
bureaucrats in the Federal Government, without everybody else
having an opportunity to have input. My guess is the reason
they want to do it in secret is they think they actually can't
get their way in the sunshine. That is my guess.
Are you a member or associate member?
Mr. Sarvadi. I am an associate member of the ACGIH, yes. I
am not permitted to be a full member because I work for the
private sector.
Chairman Norwood. But you are an associate member?
Mr. Sarvadi. I am.
Chairman Norwood. Well, you know, it is hard to hear all of
it, but I have heard some really wild stories about how this
committee comes together and they take about 7 minutes, ``Old
Don over here wrote a new standard and he is a good guy, we
have known him a long time, he was right on something 2 or 3
years ago, let's just pass it on out.'' And OSHA picks it up,
and all of a sudden we have a new law.
Mr. Owens. Would the chairman yield?
Chairman Norwood. Yes, sir.
Mr. Owens. Mr. Sarvadi, is there a secret knock and a code
word that you have to use to get in?
[Laughter.]
Mr. Sarvadi. Being an associate member, Mr. Owens, I am not
privy to any of those secrets.
[Laughter.]
Chairman Norwood. Dr. Michaels, I read in your testimony
that you were saddened and a little embarrassed by a statement
I made during our earlier hearing in April. For the benefit of
those not in the room that day--and I want to be sure I get it
in this record, too--I said that the ACGIH is going to stop
writing the laws of this land, and I am going to help them stop
doing that if it is the last thing I do on this earth.
I am sort of sorry you feel that way. That is the wrong
emphasis, in my view. What you should be embarrassed about is
the quality of the science that forms the basis of the ACGIH
TLVs. Now, I say that assuming--and I don't want to assume
this, but if you in fact are an expert witness, do you actually
do the science when you promote a TLV? Or do you just simply
take the work of the American governmental hygienists?
Dr. Michaels. I don't follow your question. I am not
promoting a particular TLV.
Chairman Norwood. Well, when you go into court on the side
of a plaintiff, you are saying to the judge, ``I am the
expert.'' That is what an expert witness is. And when you do
that, where do you get your information, to be an expert?
Dr. Michaels. If I were to do that, I would actually go
back and review the literature.
Chairman Norwood. Oh, you go back and review it yourself?
Dr. Michaels. Yes.
Chairman Norwood. Are you a member of the governmental
hygienists?
Dr. Michaels. No.
Chairman Norwood. But you do buy their books, these things
that they put out?
Dr. Michaels. Actually, no, and I am not here testifying on
their behalf at all. I am testifying on essentially how the
regulatory system can use this information.
Chairman Norwood. I understand you are not here testifying
on their behalf. You are testifying for money. I understand why
you are there.
Dr. Michaels. I am testifying here.
Chairman Norwood. I am sorry?
Dr. Michaels. I was referring to testifying here.
Chairman Norwood. I am referring to testifying in court as
an expert witness. When you go in there and you say, I know for
sure this TLV should be whatever, or I am certain that is what
it should be, where do you get that information?
Dr. Michaels. I review the literature.
Chairman Norwood. OK, so you review it yourself. You don't
depend on the industrial hygienists' information in these
books.
Dr. Michaels. I wouldn't, if that is the question. But if I
were an industrial hygienist at a workplace, I certainly would
rely on them, as a recommendation. I would say, well, this is
interesting information and they have reviewed the literature.
I have a suggestion.
Chairman Norwood. Yes, go ahead.
Dr. Michaels. I have a thought, though, if the question is,
``Is the ACGIH good science,'' why not ask the National Academy
of Sciences to review them?
Chairman Norwood. If they are finding good science, why
don't they put it out in the open?
Dr. Michaels. They have a process. What this legislation
talks about is----
Chairman Norwood. Now, tell me how you know about their
process? You have to have a secret knock to get in.
[Laughter.]
Dr. Michaels. They are a group that says, we are going to
put out a proposal; it will be a proposed. Again I am not an
expert in the ACGIH process, but for several years they have
sort of a provisional recommendation that they take comments,
people send in comments, they meet, and they discuss it.
Chairman Norwood. And about 7 minutes per regulation.
Dr. Michaels. I have no idea if that is true, but this is
not just about ACGIH. It is about the National Toxicology
Program. The International Agency for Research on Cancer has
totally open meetings. Representatives of the industries
involved send people. They discuss it all. The meetings are in
public and the vote is taken.
The problem is that if you don't like the ACGIH's science,
why not get an independent group to review it? I think that
would--should the National Academy of Sciences look at the
science?
Chairman Norwood. Thank you. Leave the questions up to the
chairman, please, sir.
Dr. Michaels. OK. What do you think about----
Chairman Norwood. Why don't you respond to that, because we
have had to correct some of this before.
Mr. Sarvadi. Let me clarify one thing about the
International Agency for Research on Cancer. In fact, they
don't have open meetings. You have to be invited as an
observer, if you are allowed into the room when they have the
conversations. The process is just as closed and just as dark
as the TLV process.
In regard to the TLV process, I can tell you from personal
experience, having reviewed a draft documentation, and Dr.
Michaels is right about one thing: There is a proposal put out;
they develop a draft documentation; and then they ask for
comments. We reviewed a draft documentation.
I personally reviewed every reference in the draft, the
draft itself, and numerous other references that were related
to the chemical in question. The draft documentation that I
reviewed had so many factual errors and misrepresentations that
it could only have been done by somebody who intended not to
tell the whole story.
And so when we filed our comments on the draft
documentation, and criticized point by point the deficiencies
in the draft, we were not told what happened. We were not
congratulated on or thanked for the effort that we put forward.
We only found out that the committee had acted on the
submission when they withdrew the proposal. That is not the
characteristic of an open dialog and debate that allows people
with opposing views to come to agreement on what the actual
answer is.
I would suggest to you, Mr. Chairman, it is very important
for scientists who at least ostensibly in the scientific
method, agree to tell the truth, the whole truth, and nothing
but the truth, to do it in an open fashion so all of us have
the opportunity to see what they are doing. The reason I think
that is important, and I am a little bit like Ronald Reagan
when it comes to this, the scientists are telling us ``trust
us.'' I will trust them, but I want to verify that trust.
Chairman Norwood. I have only been up here in this town 12
years, but I know darn well you can buy a study up here saying
anything you want it to say. I am positive of that fact.
I yield to Mr. Owens.
Mr. Sarvadi. Mr. Chairman, there is one other thing I would
like to clarify here.
Chairman Norwood. Let me yield to Mr. Owens, and then you
follow up.
Mr. Owens. During your testimony, Mr. Sarvadi, you mention
a situation where you read. Do you read Russian?
Mr. Sarvadi. No, sir. I indicated that we had had the
Russian articles translated by professional translators.
Mr. Owens. You read a large number of articles.
Mr. Sarvadi. I read over 9,000 articles, yes.
Mr. Owens. And you talked about what kind of time and
energy that it took.
Mr. Sarvadi. Yes.
Mr. Owens. Are you saying that that was the personal
approach that you took and others scientists don't, are not as
thorough?
Mr. Sarvadi. No. What I was relating to you was my
experience working as a researcher for a company that was under
contract with the National Institute for Occupational Safety
and Health to produce a review of the open literature on a very
large topic. And that was in 1981.
Mr. Owens. Do your colleagues do the same kind of thorough
work, though?
Mr. Sarvadi. I am sorry. I didn't catch that.
Mr. Owens. Are you saying you don't think your colleagues
do the same kind of work, as thorough a work?
Mr. Sarvadi. No, what I am saying is I have seen specific
examples in the ACGIH committee where they have not done that
kind of detailed review, where the review has been superficial
and inaccurate.
Chairman Norwood. I don't have a problem with that. If that
is how they want to run their outfit, that is none of my
business. My problem with that is that none of us get to look
inside of there and what they are doing, and the next thing I
know is the law of the land. That is the problem.
I don't understand why anybody here objects to OSHA
following, first, the OSH Act, and second, other laws of this
country regarding rules and regulations. It has to be an open
process. Ever since the last 12 years, it has simply gone away.
It is not an open process. It is people seeing how many they
can slip in according to what their agenda is.
I see no reason for us to not continue to move forward with
this legislation. I look forward to working with anybody who
wants to work on it. But this is going to be an open process,
so we can have standards that everybody can say, yes, that
science is right; most of us agree it is true.
It may cost you some more money, but it is going to save
lives. But at least when you spend your money, you know for a
fact, I am doing the right thing. Rather than, did somebody
with a hood on that I have to have a secret code to get into
their room, write that standard that is going to cost us
millions and millions. That is what is going on. I fail to see
why that is so hard to understand.
At this time, I would like to enter into the record
statements from the Independent Lubricant Manufacturers
Association and the Association of Builders and Contractors.
Without objection, so ordered.
[The information referred to follows:]
Independent Lubricant Manufacturers Association,
400 N. Columbus St,
Alexandria, VA, June 13, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: The Independent Lubricant Manufacturers
Association (``ILMA'') would like to express its appreciation for your
introduction last week of H.R. 5554, the ``Workplace Safety and Health
Transparency Act of 2006.'' The Association believes that the enactment
of your bill is good for both manufacturers and for workers.
Accordingly, ILMA is asking its membership to contact their Members of
Congress to urge them to co-sponsor H.R. 5554.
t ILMA submitted a written statement for the record of the April
27, 2006 hearing before your Subcommittee on Workforce Protections on
``Examining the Use of Non-Consensus Standards in Workplace Health and
Safety.'' In our statement, the Association expressed its specific
concerns with the Occupational Safety and Health Administration
(``OSHA'') incorporating by reference into its Hazard Communication
Standard (29 CFR 1910.1200) new Threshold Limit Values (``TLVs'')
adopted in a non-consensus process by the American Conference of
Governmental Industrial Hygienists (``ACGIH''). A pending, proposed TLV
for mineral oil, if adopted by ACGIH and incorporated by reference by
OSHA, would impose significant costs on ILMA members, most of whom are
small businesses, and their customers without any increased benefit to
workers. As a result, H.R. 5554 is an important step in the right
direction.
ILMA appreciates your leadership on this issue, and we look forward
to working with you and your staff on H.R. 5554.
Celeste M. Powers,
CAE Executive Director.
______
Prepared Statement of Associated Builders and Contractors
Associated Builders and Contractors (ABC) appreciates the
opportunity to submit the following statement for the official record.
We would like to thank Chairman Norwood, Ranking Member Owens and
members of the Subcommittee on Workforce Protections for holding
today's hearing on ``Addressing Concerns about the U.S. Department of
Labor's Use of Non-Consensus Standards in Workplace Health and
Safety.''
ABC is a national trade association representing more than 23,000
merit shop contractors, subcontractors, materials suppliers and
construction-related firms within a network of 80 chapters throughout
the United States and Guam. Our diverse membership is bound by a shared
commitment to the merit shop philosophy in the construction industry.
This philosophy is based on the principles of full and open competition
unfettered by the government, nondiscrimination based on labor
affiliation, and the award of construction contracts to the lowest
responsible bidder through open and competitive bidding. This process
assures that taxpayers and consumers will receive the most for their
construction dollar.
Jobsite safety and health have long been a top priority for ABC. In
order to improve safety in construction, it is imperative that that
process be a team effort. Both employer and employee share the
responsibility for workplace safety. Today's hearing offers a unique
opportunity to examine concerns that have been raised that regulations
written without wide participation from the public may not be as
effective as ones which seek broader input. In other words, it lacks
the critical team effort component.
Because of Occupational Safety and Health Administration's (OSHA)
adoption of non-compliance standards, member firms of ABC's are
subjected to standards for hazardous material exposure where they have
had no opportunity to review its validity, feasibility or cost in the
normal rulemaking process. Increased paperwork is only one part of the
new rule. Instead, heightened liability for alleged harms based on
exposure limits set without a scientific or administrative process
hurts the American employer, workplace and employee. Resources are
being diverted from workplace safety and health by increased burdens
without substantial benefits developed through a rulemaking process.
As you are well aware, your Subcommittee held a hearing in April
2006, which examined the Department of Labor's (DOL), incorporation, by
reference to non-compliance standards set by outside standard-setting
organizations. During that hearing, a lawsuit which involves the
American Conference of Government Industrial Hygienists (ACGIH) was
discussed and since that time another action has been brought in
Federal Court.
ABC and others filed a petition with the United States Court of
Appeals for the District of Columbia Circuit on March 31, 2006, which
questioned the final rule promulgated by OSHA, which, through
incorporation by reference, amended OSHA's Hazard Communication
Standard, upon adoption and publication of the 2006 Threshold Limit
Values (TLVs) by the ACGIH.
ACGIH, a non-governmental body, is not bound by, nor does it comply
with the Administrative Procedure Act. The TLVs are developed by the
standing committee of ACGIH known as the Threshold Limit Values for
Chemical Substances Committee. ACGIH explicitly disclaims any intent to
be a consensus standards organization that attempts to work through a
balancing of bias and interests.
While OSHA may retain the right to adopt industry standards set by
consensus, ACGIH's closed process does not meet the requirement for
consensus. As stated in the OSH Act, the definition of a national
consensus standard is:
``The term national consensus standard means any occupational
safety and health standard or modification thereof which (1) has been
adopted and promulgated by a nationally recognized standards-producing
organization under procedures whereby it can be determined by the
Secretary that persons interested and affected by the scope or
provision of the standard have reached substantial agreement on its
adoption, (2) was formulated in a manner which afforded for diverse
views to be considered....''
ABC commends you for holding such hearings to ensure that there is
transparency in the rulemaking process with opportunity for public
input. We look forward to working with you and this subcommittee as
this issue moves forward.
Again, ABC thanks the Chairman, Ranking Member and members of the
Subcommittee for the opportunity to present the views of our membership
on this important issue.
______
Chairman Norwood. I want to thank each of the panelists
here today for their insightful testimony. We will certainly
use what we have learned here today as we work on this issue
further. And trust me, we are going to work on this issue
further.
If there is no further business, this subcommittee now
stands adjourned.
[Whereupon, at 12:10 p.m., the subcommittee was adjourned.]
[Additional materials supplied for the record follow:]
Brick Industry Association,
11490 Commerce Park Drive,
Reston, VA, July 17, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: On June 14, 2006, the Brick Industry
Association (`BIA'') had the privilege of testifying before the
Workforce Protections Subcommittee on the impact on our industry of
OSHA's use of non-consensus standards in developing workplace health
and safety regulations. We are grateful for your leadership on this
important issue, and we thank you for providing us with the opportunity
to testify.
Our written statement focused on the 2006 non-consensus standard
for crystalline silica developed by the American Conference of
Governmental Industrial Hygienists' (``ACGIH'') Threshold Limits Value
(``TLV'') Committee--a standard that ``utterly fails to take into
account the particular conditions of our industry.'' Statement of
Joseph S. Casper, BIA's Vice President, Environment, Health & Safety,
at 2. We cited nine peer-reviewed studies, published over the years,
which have shown the virtual non-existence of silicosis in brick
industry workers. Id. at 3. None of these studies appear to have ever
been considered by the TLV Committee or the ACGIH in establishing its
new non-consensus standard.
The BIA's statement also discussed our newly completed sponsored
Study, ``The Prevalence of Silicosis in the Brick Industry,'' which
found no x-ray evidence consistent with silicosis in the over 700 brick
industry workers studied. Id. at 5. We respectfully request that a copy
of this important Study (attached) be made a part of the record of the
June 14 hearing, along with the curriculum vitae (also attached) of the
Study's Principal Investigator, Patrick A. Hessel, Ph.D., an
epidemiologist with great experience in occupational and environmental
lung diseases, especially silicosis, asbestosis, and lung cancer. Dr.
Hessel is in the process of seeking peer review and publication of the
Study.
Dr. Hessel's Study is wholly in accord with the nine studies cited
in our Statement. Because of the BIA's commitment to the protection of
the health and safety of our industry's workforce, however, we are in
the process of preparing a best practices silicosis prevention program
for the voluntary use of our membership. We expect to launch that
program in 2007, and would appreciate the opportunity to discuss it
further with you at that time.
Since the June 14 hearing, we have had the opportunity to carefully
review the statements of the other witnesses who appeared before the
Subcommittee, all of whom offered important perspectives for the
consideration of you and your colleagues. We do wish to correct one
particular comment in the statement of Professor David Michaels bearing
directly on the BIA. Dr. Michaels, in his observations about the work
of the International Agency for Research on Cancer (``IARC'') in
designating crystalline silica as a human carcinogen, stated:
``Washington trade groups, like the [BIA], may object to IARC's
designation, but representatives of the producers and users of silica
were present at the IARC [1997] meeting and their input was heard.''
First, we wish to note, for the record, that our statement made no
mention of IARC. Second, the BIA was not involved with any U.S.
industry effort connected with the 1997 IARC meeting. And third, while
we have learned that a U.S. industry representative attended the 1997
IARC meeting as a ``scientifically qualified observer,'' the role of
such observers is quite limited.
Finally, in addition to the comments about OSHA's ``HAZCOM''
Standard in Mr. Casper's statement, we wish to note our concern about
the possible misuse of non-consensus standards, like the ACGIH
crystalline silica TLV, in OSHA health standard rulemakings.
Specifically, BIA is concerned that OSHA may rely too heavily on this
TLV in its pending rulemaking considering revision of the permissible
exposure limit (``PEL'') for crystalline silica. We think it entirely
appropriate, as Assistant Secretary of Labor for Occupational Safety
and Health Edwin G. Foulke, Jr. said in his June 14 statement to the
Subcommittee, that OSHA should consider ``input through a variety of
means and sources to produce the most effective standards,'' (Foulke
Statement at 2) and nothing in H. R. 5554 precludes OSHA from doing so,
in our view. We do expect, however, that OSHA will ``consider the best
and latest available scientific data,'' (id.) in its development of any
new crystalline silica PEL, including the scientific literature
specifically focused on our workforce.
To conclude, Mr. Chairman, for all the reasons addressed in our
June 14 Statement, as supplemented and augmented herein, the BIA
strongly supports H.R. 5554, the Workplace Safety and Health
Transparency Act, because of our concerns about the Department of
Labor's HAZCOM Standard rule automatically incorporating such non-
consensus standards as the ACGIH crystalline silica TLV.
While BIA supports the intent of the OSHA HAZCOM Standard, BIA does
not agree with OSHA's treatment of the latest edition of the ACGIH's
TLVs as a source showing that the listed chemicals are hazardous for
purposes of hazard communication. Further, BIA finds problematic the
requirement that Material Safety Data Sheets must include the current
ACGIH TLV for each chemical.
Again, thank you for your leadership on this important issue. Of
course, I hope that if your staff has any questions they will not
hesitate to contact Mr. Casper at (703) 674-1545 / [email protected].
Sincerely,
Richard A. Jennison,
President & CEO.
______
[Additional BIA material submitted and placed in permanent
archive file, ``The Prevalence of Scoliosis in the Brick
Industry,'' Committee on Education and the Workforce, Patrick
A. Hessel, Ph.D., EpiLung Consulting, Inc., Palatine, IL (May
30, 2006).]
------
Chamber of Commerce of the United States,
1615 H St., NW,
Washington, DC, June 29, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: The U.S. Chamber of Commerce commends you
for introducing the Workplace Safety and Health Transparency Act (H.R.
5554) that would insure OSHA can only incorporate by reference, or
otherwise rely upon, standards produced by an organization meeting al
the requirements of a consensus organization as specified in the OSH
Act.\1\ This correction is long overdue.
---------------------------------------------------------------------------
\1\ See 29 U.S.C. 652(9), definition of ``national consensus
standard.''
---------------------------------------------------------------------------
The U.S. Chamber of Commerce represents over three milion members
in every sector of the economy and in al sizes. Our members are
directly impacted by OSHA's regulations and are concerned about OSHA's
incorporating by reference standards produced by organizations that
claim to use a consensus process, or are deemed to be consensus
organizations.\2\ The heart of our democratic process and the American
government system is transparency and an open process where those
affected by the government action have an opportunity to participate
and shape the outcome. When OSHA incorporates a standard by reference,
or otherwise relies on standards that were produced without adequate
input from those affected by them, this fundamental right to a
transparent and participatory process is lost.
---------------------------------------------------------------------------
\2\ See 29 CFR 1910. 1200(d)(3)(i), describing the American
Conference of Governmental Industrial Hygienists' list of Threshold
Limit Values (TLVs) as evidence that a chemical substance is hazardous.
---------------------------------------------------------------------------
The Workplace Safety and Health Transparency Act would go a long
way towards arresting OSHA's ability to incorporate standards produced
without an adequate consensus process by reference. The bil requires
the Secretary of Labor to make an affirmative finding that the
organization producing the standard has met the definition of a
consensus organization already established at section 3(9) of the OSH
Act. Your bil would then make this finding a final agency action and
thus subject to judicial review under the Administrative Procedure Act.
Essentialy, this act merely says that Congress was serious when it
enacted the definition for a consensus organization and limited
OSHA's use of consensus standards to those produced by
organizations that met this definition.
Equaly important, your bil does not in any way alter or disturb
current rulemaking requirements. This means that OSHA wil not be able
to revert to the provisions of section 6(a)\3\ to issue consensus
standards as regulations. Only if they provide the protections of ful
notice and comment rulemaking, as specified in the OSH Act and the
Administrative Procedure Act (as amended by the Regulatory Flexibility
Act and the Smal Business Regulatory Enforcement Fairness Act) would
OSHA be able to use a consensus standard as the basis for a rulemaking.
---------------------------------------------------------------------------
\3\ See 29 U.S.C. 655(a) alowing OSHA to adopt national consensus
standards within a two year period of the date of enactment of the OSH
Act.
---------------------------------------------------------------------------
While Senator Enzi has introduced similar language in his bil, the
Occupational Safety Fairness Act, S. 2066, your bil would go farther by
applying the same standard to state plans under review by OSHA. We
believe this is an important step as some states have been known to
adopt consensus standards without any opportunity for public comments.
Similarly, applying this standard to the Mine Safety and Health
Administration is entirely appropriate and insures that there is
consistency between these two safety agencies.
Finaly, we want to be clear that our support for this bil is not a
mater of employers seeking de-regulation of workplace safety. Employers
fuly appreciate the need to provide adequate protection and remedial
measures. Regulations specifying these measures must be subject to
public scrutiny and rigorous examination, and the regulations must meet
the requirements of being technologicaly and economicaly feasible. We
object to safety regulations that are supported by data and science
which have not been tested by exposure to the public and subject to
comments by those affected by the standard or regulation. This also
means that trying to pass off colective group think-where coleagues
share the same view-as peer review is not an acceptable safeguard. Only
the transparency of an open rulemaking, with the protections of
judicial review for inadequate support of a regulatory action wil
suffice.
We look forward to working with you to advance this important piece
of legislation.
Sincerely,
Randel K. Johnson,
Vice President, Labor, Immigration & Employee Benefits.
Marc Freedman,
Director, Labor Law Policy.
______
Patton Boggs LLP,
2550 M St., NW,
Washington, DC, June 20, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: We respectfully submit this letter for the
record of the recent legislative hearing on HR 5554 on behalf of The
Mining Awareness Resource Group (MARG). MARL strongly supports HR 5554
and extends its thanks and gratitude to you for your leadership in this
important public policy matter.
MARG is an informal coalition of mining companies in the United
States that receives support from time to time from major trade
associations and other interested companies. MARG members operate metal
and mineral (non coal) mines and/or related facilitates in Florida,
Georgia, Idaho, Illinois, Kentucky, Louisiana, Michigan, New Mexico,
Ohio, Pennsylvania, Texas, and other states. MARL members support sound
standards that protect the environment and employees; but MARL opposes
scientifically invalid, non-consensus standards, supported and used by
the U.S. Department of Labor (OSHA and MSHA) and the Department of
Health and Human Services (NIOSH and ME).
As you correctly pointed out, non-consensus standards are developed
in closed meetings, by unknown authors (including agency employees and
their academic grant recipients) and become the basis of OSHA and MSHA
regulations (e.g. MSHA and OSHA's current silica rulemaking and MSHA's
diesel exhaust standard). The OSHA Hazard Communication Rule mandates
that the latest edition of the ACGIH TLVs--a non-consensus group by
their own admission--be listed on Material Safety Data Sheets.
Similarly, the MSHA Haz Com Rule mandates that the 2001 ACGIH TLVs
define whether a chemical is hazardous.
These hundreds of recent ACGIH MV were adopted by reference by OSHA
and MSHA, without mandated rulemaking proceedings to examine their
validity. Moreover, a number of DOL and I II IS agency personnel served
on the ACGIH Board of Directors or Committees and adopted or authored
the recent TLVs, permitting conflicts of interest and bias to impact
government rules without public disclosure.
Non-consensus standards, like the ACGIH TLV, are scientifically
suspect since the qualifications of their authors, and even their
identity is kept secret, and they are not subjected to independent,
outside expert peer review, like true scientific work products. These
non-consensus standards not only cause harm to impacted industries
through agency actions, but they also are used in tort litigation as
alleged standards of care that have government support.
MARG members were vindicated when a non-consensus standard (the
ACGIH TLV(r) for trona) was withdrawn by ACGIH in a public apology,
following the favorable settlement of a lawsuit against ACGIH and DOL,
in 2001 whereby ACGIH admitted that there were no health effects
supporting the TLV, and that misconduct by its agent had occurred. Yet,
adversely impacted parties should not be forced to litigate against
these government supported and sanctioned non-consensus standard
setting groups, and we believe that HR 5554 provides the needed
sunshine on government actions to prevent future abuses.
We urge passage of HR 5554, and again thank you for your
leadership. Sincerely,
Henry Chajet,
Counsel to MARG.
______
National Mining Association,
101 Constitution Ave., NW,
Washington, DC, June 21, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: On behalf of the members of the National
Mining Association (NMA), I am writing to express our strong support
for the Workplace Safety and Health Transparency Act (H.R. 5554) which
you recently introduced.
This legislation will address inequities in the standard setting
process used by the Occupational Safety and Health Administration
(OSHA) and the Mine Safety and Health Administration (MSHA) which
result in the implementation of occupational exposure limits that have
not been subjected to the normal notice and comment provisions required
by law. Moreover, it will prevent those charged with implementing our
nation's safety and health laws from delegating their regulatory
responsibilities to non-governmental standard setting organizations
that are not subject to Congressional oversight and accountability.
NMA has a long and tortuous history with one such organization, the
American Conference of Governmental Industrial Hygienists (ACGIH). The
ACGIH, whose voting members are government officials and
representatives of academia, has adopted occupational exposure limits
recommended and drafted by agency regulatory officials who use the
ACGIH as a back-door regulatory forum devoid of notice and comment
protection. This practice cannot be permitted to continue and we are
pleased to voice our support for your bill that, among other things,
will end this abusive practice.
Sincerely yours,
Kraig R. Naasz,
President & CEO.
______
National Stone, Sand & Gravel Association,
1605 King St.,
Alexandria, VA, June 30, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: Worker safety is a top priority of the
National Stone, Sand and Gravel Association (NSSGA), as evidenced by
the association's formal alliance with the Mine Safety Health
Administration to further extend its commitment to preventing
fatalities, injuries and illnesses in America's mines. To this end,
NSSGA endorses the Workplace Safety and Health Transparency Act (H.R.
5554), and welcomes your effort to promote worker safety in an open and
formal process. NSSGA believes that this important legislation will
help ensure all relevant opinions and data are openly considered when
worker safety measures are promulgated.
At the April 27, 2006, hearing in the Workforce Protections
Subcommittee titled ``Examining the Use of Non-Consensus Standards in
Workplace Health and Safety,'' an NSSGA member company testified about
the concerns of the industry with the Occupational Safety and Health
Administration and Mine Safety and Health Administration incorporating
non-consensus standard Threshold Limit Values (TLVs) by reference,
completely bypassing the normal regulatory process. The fact that the
American Conference of Governmental Industrial Hygienists (ACGIH)
develops TLVs outside of the normal regulatory process, leads to
questions of fairness and whether or not all relevant data and opinions
are considered when these important worker safety measures are
composed. For all its faults at least the normal regulatory process
solicits input both written and oral from the regulated community,
academia and any other interested parties; requires government
commentary on significant comments/data in rulemaking decisions; and
operates more openly in the sunshine, is the better method to guarantee
all points of view and all relevant data are incorporated in the effort
to ensure that final regulations are based on sound science and are
technically and economically feasible
As the largest mining association by product volume in the world,
NSSGA's member companies produce 90 percent of the crushed stone and
more than 70 percent of the sand and gravel consumed annually in the
U.S. Aggregates are the largest component of asphalt and concrete.
Nearly three billion metric tons of aggregates valued at over $17.4
billion are estimated by the U.S Geological Survey to have been sold in
the U.S. in 2005. Without these important natural products, the
nation's infrastructure could not be built or maintained, and commerce
and quality of life would be severely reduced.
NSSGA supports voluntary consensus standards and the openness
provided by the regulatory process. H.R. 5554 will ensure worker safety
regulations are promulgated in an open and transparent process. For
this reason NSSGA and its members proudly endorse the Workplace Safety
and Health Transparency Act and thank you for your efforts to improve
the process--to the benefit of employees and employers alike.
Sincerely,
Jennifer Joy Wilson,
President & CEO.
______
The Associated General Contractors of America,
2300 Wilson Boulevard,
Arlington, VA, June 21, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: On behalf of the Associated General
Contractors of America (AGC), I would like to express our appreciation
for the introduction of H.R. 5554, the Workplace Safety and Health
Transparency Act. This legislation and the hearings you have held on
this subject matter are bringing much needed attention to this
important issue.
The safety and health of workers across the nation on construction
worksites is an AGC priority. The importance of educating the industry
and public on safety and health issues within the construction industry
has been a staple of AGC. Open discussion and debate of various topics
is part of this educational process. The American Conference of
Government Industrial Hygienists (ACGIH) does not facilitate the
openness and transparency in their development of Threshold Limit
Values (TLVs). The Occupational Safety and Health Administration's
(OSHA) adoption of such TLVs poses great concern among AGC members as
these TLVs are not developed in an unbiased process and does not take
into consideration all interested parties. Many small businesses are
severely affected by the adoption of extreme non-consensus standards.
The significant cost associated with implementing such TLVs creates
hardship on AGC members with little consensus on the impact of TLVs on
construction worker safety and health.
OSHA's adoption of standards developed by consensus groups are
acceptable and appropriate for the industry, if standards are developed
by groups with open communication with the public and with transparency
in compliance with the Administrative Procedure Act. The definition of
a national consensus standard under the Occupational Safety and Health
Act, says that any occupational safety and health standard or
modification thereof was formulated in a manner which affords for
diverse views and that interested persons affected by the standard have
reached agreement on its adoption. ACGIH does not meet the terms of
this definition and OSHA needs to address the inconsistency they have
caused by incorporating by reference ACGIH standards and other non-
consensus standards.
It should be noted that AGC fully supports the inclusion of
consensus standards from consensus groups such as the American National
Standards Institute (ANSI) where there is open communication and
discussion of various topics and issues.
AGC represents more than 32,000 firms, including 7,000 of America's
leading general contractors, and over 11,000 specialty-contracting
firms. More than 13,000 service providers and suppliers are associated
with AGC through a nationwide network of chapters.
We appreciate your leadership on this and other OSHA issues. We
look forward to working with you and your staff on the Workplace Safety
and Transparency Act.
Sincerely,
Kelly Krauser Knott,
Director, Government Relations.
______
Masonry Contractors Association of America,
33 S. Roselle Road,
Schaumburg, IL, June 19, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: On behalf of the members of the Mason
Contractors Association of America (MCAA) we would like to express our
sincere appreciation for the introduction of H.R. 5554, the ``Workplace
Safety and Health Transparency Act of 2006.'' MCAA strongly believes
that enactment of your bill would benefit our member companies as well
as the individuals they employ.
MCAA is extremely concerned that the Occupational Safety and Health
Administration (OSHA) incorporates, by reference, into regulations,
standards which have been adopted by the American Conference of
Governmental Industrial Hygienists (ACGIH), which are non-consensus
standards. As you well know our members are subjected to standards for
hazardous material exposure where they have had no opportunity to
review the validity of the standard or its feasibility and cost, which
would be part of the normal rulemaking process.
Jobsite safety and health have long been and remain a top priority
for MCAA. We commend you for your efforts to address the concerns
regarding the ``Department of Labor's Use of Non-Consensus Standards in
Workplace Health and Safety.'' In addition, we again express our
support for your efforts to insure that policy is based on sound
science and a transparent process.
Thank you for your time and consideration in this matter of mutual
interest and we look forward to our continued work together.
Sincerely,
Jessica Johnson Bennett,
Director of Government Affairs.
______
Association of Occupational and Environmental
Clinics,
1010 Vermont Ave., NW,
Washington, DC.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
RE: Bill to amend the Occupational Safety and Health Act of 1970 and
the Federal Mine Safety and Health Act of 1977 to prohibit the
promulgation of safety and health standards that do not meet
certain requirements for national consensus standards.
The Association of Occupational and Environmental Clinics is a non-
profit membership organization established in 1987. We represent over
60 occupational medicine clinics including more than 80% of the
occupational medicine training programs for physicians. Our members are
a multidisciplinary group of physicians, nurses, industrial hygienists
and other occupations concerned with occupational and environmental
health. Our focus in occupational and environmental health is on the
prevention of illness and injuries.
We are concerned about the potential for unintended consequences of
the Bill referenced above, which we understand has been introduced by
Representative Norwood. While we agree that workplace health and safety
standards should be ``formulated in a manner which has afforded an
opportunity for diverse views to be considered;'' we are concerned that
OSHA and MSHA will be prohibited from even referencing ``any finding,
guideline, standard, limit, ...'' unless it meets all of the
requirements outlined in the draft legislation. We are particularly
concerned over requirement 1 which requires ``that persons interested
and affected by the scope or provisions of the standard have reached a
substantial agreement on its adoption.'' This effectively precludes
OSHA or MSHA from referencing any information that does not have 100%
agreement amongst all stakeholders, which would allow any small entity
to exercise veto power over health and safety standards through claims
of a ``lack of consensus.'' .
While we understand the rationale for complete open review of
exposure levels for enforcement purposes, not allowing OSHA or MSHA to
include information from well established, peer-reviewed sources, such
as the threshold limit values (TLV) from the American Conference of
Governmental Industrial Hygienists, has the potential to harm many
workers. The TLVs provide a science-based benchmark for clinicians to
assess the association between exposure levels and hazards to workers'
health. The TLVs are widely accepted in the medical and public health
community as guidance for clinical evaluation. While occupational
physicians will continue to have ready access to this information, most
ill and injured workers are seen by their primary care physicians. Many
times primary care physicians evaluating a potentially hazardous
exposure must use material safety data sheets (MSDS) as their only
source of information about possible health effects of exposures. These
sheets are required to include recommended exposure limits and
potential health hazards provided not only from ACGIH but also the
National Toxicology Program (NTP) and the International Agency for
Research on Cancer (IARC). Information on the MSDS is not only used for
worker exposures but also for exposures to community members including
children.
OSHA already has a standard-setting procedure that takes into
account the nature and weight of evidence for health hazards as well as
the feasibility and burden-to-benefit ratio of implementation. While
the ideal situation would be for OSHA to establish safe exposure levels
for all potentially harmful workplace exposures, the reality is that
OSHA has issued fewer than thirty such standards in the past thirty
years. Given the thousands of potentially harmful exposures in the
workplace, it is neither practical nor advantageous to worker health
and safety to wait for 100% consensus.
Most importantly to clinicians, this amendment would curtail
information on the MSDS regarding potential health effects. This
information is important to accurate clinical diagnosis and patient
care. We appreciate your attention to this matter and strongly urge you
to re-evaluate the potential consequences of this bill.
Katherine H. Kirkland, MPH,
Executive Director.
______
Prepared Statement of Brush Wellman Inc.
Brush Wellman appreciates the opportunity to submit comments and
information pertinent to the deliberations of the Subcommittee on
Workforce Protections regarding its concerns about the U.S. Department
of Labor's use of non-consensus standards in workplace health and
safety. Brush Wellman is the leading international supplier of high
performance engineered materials containing beryllium and is
headquartered in Cleveland, Ohio. It is the only fully integrated
supplier of beryllium, beryllium alloys and beryllia ceramic in the
world.
Since its founding in 1931, Brush Wellman has concentrated its
operations and skills on advancing the unique performance capabilities
and applications of beryllium-based materials. As a world leader in
beryllium production and technology, Brush Wellman strives to remain a
leader in medical knowledge of beryllium and in the environmental,
health and safety aspects of using beryllium-containing materials.
We wish to commend the Subcommittee for its work in investigating
how select non-governmental organizations and internal government
agency scientific committees may directly or indirectly influence
legislation and regulations in a manner which does not allow all
scientific findings or expert opinions to be fairly considered and
heard on a level field of play. Brush Wellman has first hand experience
in submitting credible scientific research to such groups. Sometimes we
get a fair hearing with our comments being considered and incorporated
based on their technical merits. Unfortunately, our comments are often
viewed simply as an industry submission not worthy of consideration.
Quite frankly, such responses are unfair with industry being held to a
different level of scientific scrutiny than those from academia or
government agencies who tend to get a free pass on their research
motivations regardless of the size of their financial grants or their
personal or professional gains.
As a result, Brush Wellman strives to meet a higher standard of
scientific achievement through the quality of its research and its
research partnerships with government agencies such as NIOSH. For these
partnerships to be successful, perceptions and opinions must be cast
aside and good science must prevail. Our research partnership with
NIOSH, to advance the knowledge of beryllium health and safety, is now
in its ninth year. One very key benefit of this work has been Brush
Wellman's ability to move the research findings to the shop floor to
improve safe work practices at a rapid pace. In fact, the NIOSH/Brush
Wellman relationship was reviewed in detail by the NIOSH Board of
Scientific Councilors, in part to ensure that industry was not unduly
influencing NIOSH researchers. The Board found no such conflicts and
stated that:
``The subcommittee was impressed with the current NIOSH research
program on beryllium, both in terms of the scientific quality of the
work and the progress made to date. The cooperative and close
interaction with Brush Wellman has also been beneficial to the quality
and achievements of this research.''
and,
``The NIOSH beryllium research program includes a high degree of
collaboration with Brush Wellman Inc. In many respects, the level and
degree of collaboration offers a model for similar work with industry
groups.''
Brush Wellman is currently in discussions with NIOSH to extend its
research partnership into other areas such as how best to communicate
the lessons learned from our joint research to users of beryllium-
containing materials downstream of the primary beryllium industry.
In reviewing the comments of those who provided direct testimony to
the Subcommittee on Workforce Protections, Brush Wellman has identified
misleading statements and errors of fact that we wish to bring to the
attention of the Subcommittee.
The statement by Congressman Major Owens regarding his description
of beryllium as an example of a ``powerful carcinogen'' inappropriately
overstates the potential carcinogenic risk of exposure to beryllium.
Even if one were to accept the relative risks for cancer used to
establish beryllium as a carcinogen, the risk values for beryllium
remain the lowest ever used to so designate a human carcinogen.\1\ It
is also clear that beryllium exposure does not pose a cancer risk
today. Studies conducted on worker populations have found no excess
cancer risk in facilities operated after the 1950s when inhalation
exposures were typically 10 to 1000 times lower than that experienced
in pre-1950 facilities. Scientific organizations have addressed this
finding by stating that any association which may exist between
beryllium and cancer is only at the extremely high levels of airborne
beryllium particulate exposure which existed at facilities operating
before the 1950s.\2,3\
Whether beryllium should even be listed as a carcinogen remains a
serious question in scientific circles. In the most current study
regarding the potential for beryllium to cause lung cancer,\4\ Dr. Paul
S. Levy concluded:
``There is no statistical association between beryllium exposure in
these workers and lung cancer when using the most appropriate
population cancer rates.''
The Levy study, which was published in 2002, reanalyzes the data
and conclusions of the 1992 study by Ward \5\ which has been used to
support cancer classifications for beryllium by organizations such as
IARC and the NTP.
The Levy study establishes that there is no statistical association
between beryllium exposure and lung cancer. In addition, a 2004 study
by the U.S. Department of Energy\6\ concludes that:
``No associations were found between lung cancer mortality and
cumulative external penetrating radiation dose or cumulative exposures
to asbestos, beryllium, hexavalent chromium, or nickel.''
The reports from the organizations that have classified beryllium
as a carcinogen show that they have not yet considered the Levy or DOE
study in their evaluation of beryllium. The scientific evidence
provided by the Levy and DOE studies warrants a review of the
carcinogenicity classification for beryllium.
The carcinogenicity of beryllium has been and will continue to be
debated in the scientific and regulatory community. Although
unconvinced of the validity of a causal relationship between beryllium
exposure and lung cancer, Brush Wellman has for years included
information on the cancer classification of beryllium in its product
Material Safety Data Sheets and warning labels.
The testimony of Dr. Michaels to the Subcommittee contains
misleading statements and errors of fact which require clarification
Dr. Michaels made the following statement to Congress.
``OSHA's current beryllium exposure standard dates to 1949. Fifty
years later, when I was Assistant Secretary of Energy, we issued a
workplace exposure standard for beryllium that is ten times stronger
than OSHA's. After much initial opposition, even the beryllium industry
now acknowledges the current OSHA standard is inadequate. The bill
being considered today would prohibit OSHA from referencing the ACGIH's
recommendations on beryllium, or IARC's findings that beryllium is a
human carcinogen.''
The DOE did not issue a workplace exposure standard 10 times lower
than the OSHA beryllium standard. The DOE rule uses the current
Occupational Safety and Health Administration health standard of ug/
m\3\ as its legal exposure level to protect workers. The DOE did issue
a 10-fold lower ``action level''. The DOE ``action level'' for
beryllium prompts the use of control measures such as personal
protective equipment, air monitoring and warning signs. The DOE final
rule contains the following statement.
``DOE has decided that the most prudent course is to lower the
action level to 0.2 ug/m\3\ rather than set a new exposure limit.''
The DOE rule did not identify a new PEL for beryllium. In addition,
the DOE would not automatically accept a new ACGIH beryllium TLV as its
new beryllium exposure limit without reopening the rulemaking process
in a manner subject to public review. The DOE rule states:
``The incorporation of any new ACGIH TLV in this rule would require
that DOE conduct a rulemaking on the specific exposure level and
present the scientific basis for public comment. As stated previously
in this SUPPLEMENTARY INFORMATION section, DOE believes, based on the
existing scientific evidence, that such a rulemaking is premature.''
Even today, the ACGIH has not adopted a new TLV for beryllium and,
in fact, has proposed three different values for a new beryllium TLV
over the past 8 years. The current ACGIH TLV for beryllium still
remains the same as the current OSHA PEL for beryllium.
Dr. Michaels went on to say ``After much initial opposition, even
the beryllium industry now acknowledges the current OSHA standard is
inadequate.'' This statement is not accurate. What Brush Wellman
objected to regarding the DOE's consideration of a lower PEL was that
there was not yet a good scientific basis to set a new standard for
beryllium exposure. Based on research studies conducted by Brush
Wellman in cooperation with the National Jewish Medical Center, Brush
Wellman issued a written letter in August of 1996 advising all of its
customers that:
``Brush Wellman continues to recognize this standard [OSHA 2
microgram PEL]. At the same time, it remains the best practice to
maintain concentrations of all atmospheric contaminants as low as
feasible, and continue to work to improve exposure control practices
and procedures. At this time, it is uncertain whether persons exposed
only below the standard can become sensitized to beryllium or develop
clinical signs or symptoms of CBD.''
Brush Wellman made this statement regarding the uncertainties of
the current standard three years before the DOE issued its beryllium
rule.
Regarding Brush Wellman's position on the current OSHA standard, we
have publicly stated the following to all of our customers.
``Research findings\7\ suggest that a high level of compliance with
the current Occupational Safety and Health Administration (OSHA)
Permissible Exposure Limit (PEL) of 2 ug/m\3\ can prevent clinical
CBD.\8,9,10\ Recent research findings\11\ indicate that individuals at
operations with exposures that rarely exceed 0.2 ug/m\3\ did not
experience sensitization\12,13,14\ or sub-clinical CBD.15,16
The 2001 Department of Energy (DOE) study by Johnson\3\ reviewed
and analyzed the results of the beryllium monitoring program at the
Atomic Weapons Establishment beryllium facility in Cardiff Wales. The
Cardiff study analyzes the single most extensive historical database of
personal exposure monitoring data within the beryllium industry. A
notable feature of the program was that it included personal exposure
monitoring on every worker for every day worked. More than 200,000
personal samples were collected between 1981 and 1997. Based on these
extensive sampling data, the Cardiff facility achieved compliance with
the current beryllium standard 98 percent of the time. Since its
inception, the Cardiff facility maintained a state-of-the-art exposure
management program which included strict and consistent use of
engineering controls, work practices, housekeeping, process
containment, migration controls and the use of personal protective
equipment. The Cardiff program resulted in one case of clinical CBD
over 36 years of operation. Johnson concluded that the Cardiff
experience ``* * * appears to have successfully prevented the incidence
of clinical CBD with the exception of one unique case.''
The final results from the National Institute for Occupational
Safety and Health (NIOSH)/Brush Wellman 2000 study\7\ of the Brush
Wellman Reading, Pennsylvania facility have shown that sensitization
and sub-clinical CBD can occur when airborne beryllium levels have been
mainly below the OSHA PEL of 2 ug/m\3\. The results also show that
workers in operations which rarely exceeded 0.2 ug/m\3\ had no
sensitization or sub-clinical CBD. This facility processes alloys
containing 0.1% to 2.0% beryllium and manufactures thin gauge strip and
wire products using a variety of processes including rolling, drawing,
pickling, annealing, heat treating, degreasing and welding.
Although the Cardiff study suggests that a high level of compliance
with the 2 ug/m\3\ standard may prevent clinical CBD, the results from
the Reading study, along with uncertainties of particle size,\17,18\
chemical form\19\ and process related risks,\20\ support taking a more
conservative approach. As a result, Brush Wellman has adopted an action
level for airborne beryllium of 0.2 ug/m\3\ as an 8-hour time weighted
average. Brush Wellman utilizes good work practices, engineering
controls, and respiratory protection in its efforts to maintain worker
exposures below 0.2 ug/m\3\.''
In closing, the absence of a general understanding of the
difference between sub-clinical and clinical CBD, the lack of
understanding that all beryllium disease is not symptomatic, and
widespread misunderstandings associated with the beryllium blood test
have all been used to distort the perception of health effects of
occupational exposure to beryllium. Beryllium health and safety
represents a complex medical issue that can be easily misunderstood
even by the most thoughtful per son. Unfortunately, it is also all too
often manipulated by non-altruistic critics to the disservice of the
thousands of men and women that the industry employs and to the
discredit of the incredible range of benefits its products bring to
society. Beryllium and beryllium-containing materials are making the
world a better, more connected and safer place. You'll find them at
work helping to ensure our national defense and homeland security, and
saving lives in airbag sensors, fire control sprinkler heads,
mammography x-ray equipment and medical lasers.
ENDNOTES
\1\ Comments of Dimitrios Trichopoulos, MD The Alleged Human
Carcinogenicity of Beryllium Submitted to the National Toxicology
Program June, 1999.
\2\ American Conference of Governmental Industrial Hygienists.
Beryllium and Compounds, Documentation of Threshold Limit Values
(1997).
\3\ International Agency for Research on Cancer. Beryllium,
cadmium, mercury and exposures in the glass manufacturing industry.
IARC Monographs on the Eval uation of Carcinogenic Risks to Humans 58:-
41 117 (1993).
\4\ Levy P., Roth H., Hwang P., Powers T. Beryllium and Lung
Cancer: A Reanalysis of a NIOSH Cohort Mortality Study. Inhalation
Toxicology 14:1003-1015 (2002).
\5\ Ward, E., et al. A Mortality Study of Workers at Seven
Beryllium Processing Plants. Am J Ind Med 22: 885-904 (1992).
\6\ Brown S.C., et al. Lung Cancer and Internal Lung Doses among
Plutonium Workers at the Rocky Flats Plant: A Case-Control Study. Am J
Epidemiol 160(2): 163-172 (2004).
\7\ Johnson J., et al. Beryllium Exposure Control Program at the
Cardiff Atomic Weapons Establishment in the United Kingdom. Appl Occup
Environ Hyg 16(5): 619-630 (2001).
\8\ Clinical CBD is defined as symptomatic lung disease with
abnormal chest x-ray or lung function test.
\9\ Hardy H.L., Tabershaw I.R. Delayed Chemical Pneumonitis
Occurring in Workers Exposed to Beryllium Compounds. J Indus Hyg
Toxicol 28: 197 (1946).
\10\ Kriebel D., Brain J.D., Sprince N.L., et al. The Pulmonary
Toxicity of Beryllium. Am Rev Respir Dis 137(2): 464-473 (1988).
\11\ Schuler, C., et al. Process-Related Risk of Beryllium
Sensitization and Disease in a Copper-Beryllium Alloy Facility. Am J
Ind Med (In Press)
\12\ Sensitized is defined as confirmed beryllium positive blood
lymphocyte proliferation test or beryllium positive broncho-alveolar
lavage lymphocyte proliferation test without granuloma upon lung
biopsy.
\13\ Maier L.A. Beryllium Health Effects in the Era of the
Beryllium Lymphocyte Proliferation Test. Appl Occup Environ Hyg 16(5):
514-520 (2001).
\14\ Stokes R.F., Rossman, M.D. Blood cell proliferation response
to beryllium: analysis by receiver operating characteristics. J Occup
Med 33: 23-28 (1991).
\15\ Sub-clinical CBD is defined as beryllium sensitization plus
granuloma upon lung biopsy with normal chest X-ray and lung function
test.
\16\ Kreiss K., Newman L., Mroz M., Campbell P. Screening Blood
Test Identifies Subclinical Beryllium Disease. J Occup Med 31(7): 603-
608 (1989).
\17\ Kent M., Robins T., Madl A. Is Total Mass or Mass of Alveolar-
Deposited Airborne Particles of Beryllium a Better Predictor of the
Prevalence of Disease? A Preliminary Study of a Beryllium Processing
Facility. Appl Occup Environ Hyg 16(5): 539-558 (2001).
\18\ McCawley M. et al. Ultrafine Beryllium Number Concentration as
a Possible Metric for Chronic Beryllium Disease Risk. Appl Occup
Environ Hyg 16(5): 631-638 (2001).
\19\ Deubner D., et al. Beryllium Sensitization, Chronic Beryllium
Disease, and Exposures at a Beryllium Mining and Extraction Facility.
Appl Occup Environ Hyg 16(5): 579-592 (2001).
\20\ Kreiss K., Mroz M., Zhen B., Wiedemann H., Barna B. Risks of
beryllium disease related to work processes at a metal, alloy, and
oxide production plant. Occ. and Env. Medicine 54: 605-612 (1997).
______
Industrial Minerals Association,
Pennsylvania Ave., NW,
Washington, DC, June 19, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: The Industrial Minerals Association--North
America (IMA-NA) wishes to express its appreciation for your
introduction on H.R. 5554, the ``Workplace Safety and Health
Transparency Act of 2006.'' IMA-NA member companies operating in the
United States are impacted by both the Occupational Safety and Health
Administration's (OSHA) and the Mine Safety and Health Administration's
(MSHA) Hazard Communication Standards (HCSs). IMA-NA shares your
concern about the Department of Labor's practice of incorporating by
reference non-consensus standards set by outside standard-setting
organizations without the benefit of notice and comment rulemaking
required by the organic statutes establishing these agencies. IMA-NA
supports H.R. 5554 and is asking its membership to contact their
Members of Congress to urge them to cosponsor this legislation.
IMA-NA has a number of concerns relative to the Department of
Labor's reliance, particularly by OSHA, on independent organizations,
such as the American Conference of Governmental Industrial Hygienists
(ACGIH), as authoritative bodies in its HCSs. Your June 14, 2006
subcommittee hearing on ``Addressing Concerns about the U.S. Department
of Labor's use of Non-Consensus Standards in Workplace Health and
Safety'' helped prompt IMA-NA to pen a letter to Assistant Secretary of
Labor Edwin Foulke illustrating our concerns. A copy of that letter is
enclosed and we respectfully request that it be introduced into the
hearing record.
In closing, IMA-NA appreciates your leadership on this issue and we
look forward to working with you and your colleagues on securing the
passage of H.R. 5554.
Sincerely,
Mark G. Ellis,
President.
______
Industrial Minerals Association,
Pennsylvania Ave., NW,
Washington, DC, June 19, 2006.
The Honorable Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, NW, Washington,
DC.
Re: OSHA Hazard Communication Standard
Dear Secretary Foulke: The Industrial Minerals Association--North
America (IMA-NA) is a trade association representing producers and
processors of industrial minerals, as well as equipment manufacturers,
railroad and trucking companies, law firms and consulting professionals
that serve the industrial minerals industry. Industrial minerals are
critical to the manufacture of glass, ceramics, rubber, pharmaceutical
and cosmetic goods. They also are used to make foundry cores and molds
used for metal castings, paints, metallurgical applications, refractory
products and specialty fillers. IMA-NA member companies operating in
the United States are impacted by the Occupational Safety and Health
Administration's (OSHA) Hazard Communication Standard (HCS), hence this
letter to you.
The OSHA HCS, as interpreted and enforced by the Department of
Labor, incorporates by reference both current and future Threshold
Limit Values (TLVs) published by the American Conference of
Governmental Industrial Hygienists (ACGIH). It requires that employers
must consider hazardous any substance for which a TLV limit exists, now
or in the future. As a result, when a TLV Limit is created or modified
for a substance, the HCS automatically requires employers to include
the new TLV Limits in Material Safety Data Sheets distributed to
employees, distributors and retailers.
IMA-NA has a number of concerns relative to OSHA's reliance on
independent organizations, such as ACGIH, as authoritative bodies in
its HCS. For example, the procedural deficiencies endemic in the ACGIH
TLV development process make it inappropriate for OSHA to automatically
incorporate these TLV Limits in a legally binding regulation. ACGIH
TLVs lack the basic indicia typical of national consensus standards or
the more rigorous procedural safeguards legislatively mandated for OSHA
rulemakings. By way of illustration:
Lack of Notice--OSHA does not provide notice to the public
when the ACGIH identifies substances as being ``under study,'' subject
to a ``notice of intended change'' or when a notice of intended change
is adopted by the ACGIH Board of Directors. Consequently, potentially
affected parties are not put on notice that a TLV Limit may be under
development. Moreover, the available documentation supporting these
developmental steps are not made freely available to the affected
public by either ACGIH or OSHA.
Consideration of the Best Available Information--neither
ACGIH nor OSHA ensures that all published literature is evaluated in
the Documentation of TLVs. A master list of relevant scientific
literature is not compiled, and neither ACGIH TLV Committee members,
the ACGIH Board of Directors, nor the affected public are aware when
potentially relevant research is eliminated from the TLV Documentation,
or upon what basis. There is no defined scientific methodology or audit
process for the evaluation of draft TLV Limits.
Professional Expertise--ACHIH has no qualification
requirements for its TLV authors. It does not ensure that an array of
professional disciplines is involved in the development of TLV Limits.
The draft TLVs typically are authored by one, unidentified individual,
who cannot possibly have all the necessary insights to evaluate the
body of scientific evidence relevant to the establishment of an
occupational exposure limit. Professional disciplines that properly
should be reflected in the development of any occupational exposure
limit are industrial hygienists, epidemiologists, toxicologists,
biostatisticians, risk assessors, occupational physicians, etc.
Bias/Conflicts of Interest--ACGIH has a policy that it
claims prevents conflicts of interest and bias, including a form that
ACGIH officials are supposed to complete listing potential conflicts.
However, we understand that even where conflicts are identified by
ACGIH the organization merely ranks them from high to low. Biases are
not listed, identified or discussed. Where TLV Committee members have
such significant conflicts that they must abstain from voting on TLV
Limits, they nonetheless are free to participate in drafting them.
Opportunity to be Heard--ACGIH typically limits public
input on draft TLV limits to written submissions. There is no right to
engage the author(s) of the draft TLV, or the TLV Committee, on the
basis for the draft TLV, the emphasis (or lack thereof) placed on
particular studies, factors weighing on the strength or weight of
evidence, etc. Comments filed by other affected parties are not freely
available for public inspection, rebuttal or affirmation. A consensus-
building process does not exist that would allow persons interested and
affected by the draft TLV to reach substantial agreement on its
adoption. Importantly, in the absence of necessary procedural
safeguards, OSHA does not provide an opportunity for the affected
public to comment on its adoption of the ACGIH TLVs in its HCS before
they take regulatory effect.
Independent Scientific Peer Review--ACGIH does not subject
its notices of intended change or final TLV Limits to independent
scientific peer review. In fact, ACGIH refuses to seek and obtain
independent, outside peer review of TLV Limits and TLV Documentation,
even after requested to do so. Review processes employed by scientific
journals and federal administrative procedures for public participation
are not observed, which otherwise might help alleviate deficiencies in
draft TLVs or TLV Documentation. OSHA could, and should, provide for
independent peer review of the ACGIH TLVs before adopting them in its
HCS.
Right of Appeal--There is no right of appeal when the
ACGIH adopts a TLV. When the TLV Committee completes its work on
notices of intended change, we understand a list of recommended actions
is compiled for adoption by the ACGIH Board of Directors. Only after
the ACGIH Board of Directors adopts a TLV Limit is the affected public
made aware of ACGIH's determination. ACGIH has no procedures for
reconsideration of TLV Limits by the Board of Directors or for an
appeal from its decision. At a minimum, OSHA should afford an
administrative appeal within the agency before adopting ACGIH TLVs in
its HCS. When OSHA incorporates by reference a standard not developed
through the Agency's rulemaking procedures, that decision by OSHA
should be subject to judicial review.
While not a complete list, the foregoing examples highlight some
major procedural deficiencies in the ACGIH TLV development process.
Either ACGIH TLVs must satisfy the requirements of a national consensus
standard as specified in the OSHAct or OSHA should conduct notice and
comment rulemaking as provided in that Act when incorporating TLV
Limits in a legally binding agency regulation. What we would prefer to
see implemented are the more rigorous procedural safeguards
legislatively mandated for OSHA rulemakings.
We respectfully request that you review the appropriateness of
continuing to rely on ACGIH as an authoritative body in OHSA's HCS
because ACGIH TLV Limits truly are not national consensus standards.
Thank you for your consideration of this request.
Respectfully submitted,
Mark G. Ellis,
President.
______
Prepared Statement of the Interlocking Concrete Pavement Institute
Mr. Chairman, the Interlocking Concrete Pavement Institute (ICPI)
fully supports passage and adoption of HR5554, the Workplace Safety and
Health Transparency Act. We applaud the introduction of the bill,
calling to light a serious concern for manufacturers who are subject to
regulation using standards in which they have had no fair opportunity
to participate or challenge. This matter directly affects members of
ICPI, who have exposure to regulations developed by issued by OSHA.
ICPI's principle concerns are addressed by the sections of HR5554
that would restrict OSHA's use and consideration of certain outside
sources of regulatory material, and we will focus on the OSHA issues.
Fundamental requirements of substantive and procedural due process,
federal acquisition law, the Date Quality Act and more establish a
strong set of fundamental practices and principles designed to provide
for openness, transparency, notice, hearings, opportunities for appeal
and much more to allow all parties interested in a regulation to
participate in the regulatory process. These principles sound in
fundamental fairness and go to the heart of the integrity of the
process.
However, under current law, a large gap exists in the regulatory
scheme that allows OSHA to act upon and incorporate by reference
standards developed by non-governmental organizations that do not
adhere to the quality control practices and procedures designed to
assure the accuracy, validity and integrity of the standards-making
process.
Under current law, OSHA is allowed to use or incorporate by
reference new regulatory standards issued by non-government entities
whose motivations are unknown, whose possible conflicts of interests
may not be disclosed, whose internal quality control procedures are
beyond reach, whose key decision-making staff are unidentified and
unavailable for interview, who act without holding public hearings or
considering balanced testimony, and in fact need not meet or adhere to
any reasonably acceptable degree of third-party accountability.
Where present, these factors prevent many parties affected by such
non-government standards from participating in any efforts to develop
consensus regulations.
In short, all these deficiencies may be summed up by saying that
such standards are developed in a manner so lacking in consensus-
building procedures that they should be considered fatally flawed for
the purposes of government use and should be utterly barred from use or
consideration in OSHA regulations.
HR5554 would repair the most imminent and egregious consequence of
this gap in quality, fair process by prohibiting OSHA from promulgating
or incorporating by reference any such non-government organization's
regulatory action unless the Secretary affirmatively finds that (1)
such determination has been adopted and promulgated by a nationally
recognized standards-producing organization under procedures whereby it
can be determined by the Secretary that persons interested and affected
by the scope or provisions of the standard have reached substantial
agreement on its adoption, (2) it was formulated in a manner which
afforded an opportunity for diverse views to be considered; and (3) has
been designated as such a standard by the Secretary after consultation
with other appropriate Federal agencies.
Such a finding and a summary of its basis shall be published in the
Federal Register and shall be considered a final action subject to
judicial review.
The bill would also extend this obligation to the approval of state
plans that may be influenced by or incorporated by reference in
regulatory materials issued by non-government organizations.
ICPI believes that these protections are necessary to avoid
subjecting the regulated community to regulatory practices and schemes
that would clearly be subject to challenge or disallowed altogether if
they were used by OSHA. In fact, the current gap in the law could
promote unsavory stratagems to establish unbalanced, invalid regulatory
controls using surrogates for OSHA to do what OSHA may not do itself.
ICPI recommends that entities be required to use analogues to the
quality control required of OSHA, or OSHA should be completely barred
from making any use of or enforcing the work product such
organizations.
Mr. Chairman, time is of the essence. Non-government organizations
work every day taking action that may ultimately impact the regulated
community.
ICPI supports HR5554 in its entirety and urges its passage at the
earliest possible time.
With kind regards,
Charles A. McGrath, CAE,
Executive Director.
______
National Association of Manufacturers,
1331 Pennsylvania Ave., NW,
Washington, DC, June 26, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: On behalf of the National Association of
Manufacturers (NAM), the nation's largest industrial trade association
representing small and large manufacturers in every industrial sector
and in all 50 states, I write to you today in support of H.R. 5554, the
Workplace Safety and Health Transparency Act.
H.R. 5554 will help ensure that any future guidelines put in place
will be based on public notice and comment rulemaking. NAM believes
that organizations that meet in private and do not permit stakeholders
to participate in their proceedings should never be the basis for
federal regulations. Specifically, your legislation will prohibit the
Occupational Safety and Health Administration or the Mine Safety and
Health Administration from incorporating any regulation based on a
determination from a non-consensus organization. NAM supports the
development of regulations through public notice and comment
rulemaking-and delegating agency authority to outside non-consensus
organizations violates that basic principle.
The NAM thanks you for your continued leadership on regulatory
fairness and safer workplaces. We look forward to continuing to work
with you on these matters which are critical to both U.S. employers and
their employees.
Thank you again.
Sincerely,
Sandra Boyd,
Vice President, Human Resources Policy.
______
Prepared Statement of the National Concrete Masonry Association
Mr. Chairman, the National Concrete Masonry Association (NCMA)
supports passage of HR5554, the Workplace Safety and Health
Transparency Act.
This matter directly affects members of NCMA, who have exposure to
regulations developed by issued by OSHA. We will focus on the impact
that HR5554 would have on OSHA's use of standards generated by non-
governmental organizations that generate standards on a non-consensus
basis.
We suggest that HR5554 would require OSHA to act consistently and
fairly in restricting the NGO standards which influence it or are
incorporated by reference in such OSHA regulations like the Hazard
Communication rule. NCMA feels it is inappropriate for OSHA to
incorporate information and standards whose development would not meet
the procedural requirements for OSHA standards per se.
Stakeholders in the regulated community need to have access to the
regulatory development process. Transparency and openness in the
process are important to ensure that the information, and the
regulations they generate, have validity and will stand up to scrutiny
as part of the consensus process.
Today, a large gap exists in the regulatory scheme that allows OSHA
to act upon and incorporate by reference standards developed by non-
governmental organizations that do not adhere to the quality control
practices and procedures designed to assure the accuracy, validity and
integrity of the standards-making process. OSHA is allowed to use or
incorporate by reference new regulatory standards issued by non-
government entities whose motivations are unknown, whose possible
conflicts of interests may not be disclosed, whose internal quality
control procedures are beyond reach, whose key decision-making staff
are unidentified and unavailable for interview, who act without holding
public hearings or considering balanced testimony, and in fact need not
meet or adhere to any reasonably acceptable degree of third-party
accountability.
In short, all these deficiencies may be summed up by saying that
such standards are developed in a manner so lacking in consensus-
building procedures that they should be considered fatally flawed for
the purposes of government use and should be utterly barred from use or
consideration in OSHA regulations.
HR5554 would repair the most imminent and egregious consequence of
this gap in quality, fair process by prohibiting OSHA from promulgating
or incorporating by reference any such non-government organization's
regulatory action unless the Secretary affirmatively finds that (1)
such determination has been adopted and promulgated by a nationally
recognized standards-producing organization under procedures whereby it
can be determined by the Secretary that persons interested and affected
by the scope or provisions of the standard have reached substantial
agreement on its adoption, (2) it was formulated in a manner which
afforded an opportunity for diverse views to be considered; and (3) has
been designated as such a standard by the Secretary after consultation
with other appropriate Federal agencies.
Such a finding and a summary of its basis shall be published in the
Federal Register and shall be considered a final action subject to
judicial review.
HR5554 would extend this obligation to the approval of state plans
that may be influenced by or incorporated by reference in regulatory
materials issued by non-government organizations.
NCMA supports HR5554, its goals and its terms, and urges its
passage.
______
Prepared Statement of the Society for Occupational and Environmental
Health
SOEH opposes this proposed legislation because we believe that, if
enacted, it would limit useful evidence-based information that our
members and other p! ractiti oners in occupational and environmental
health rely on to protect worker and community health and safety. We
support time-tested science-based guidelines and information for
federal regulation. However, while waiting for the regulatory actions
to be completed, there is a need for information within the scientific
and clinical communities to assist in maintaining the health of workers
and others. Most clinicians are not trained in toxicology and therefore
depend on resources such as the material safety data sheets (MSDS). The
MSDS include information from sources such as the threshold limit
values (TLV) from the American Conference of Governmental Industrial
Hygienists, the National Toxicology Program (NTP) and the International
Agency for Research on Cancer (IARC). The data from these organizations
have been accepted by the occupational medicine community as well-
established, peer-reviewed sources of information to be used for
clinical assessments as well as for industrial hygiene assessments.
Accurate and up-to-date information on the MSDS is needed to protect
not only workers but also our communities. Under this bill, this
resource for clinicians and industrial hygienists would be seriously
limited.
We believe the Occupational Safety and Health Administration's
(OSHA) current authority is sufficient for developing standards. OSHA
appropriately takes into account the nature and weight of evidence for
health hazards and considers the technical and economic feasibility of
implementation from many sources.
The Society for Occupational and Environmental Health is a non-
profit membership organization established in 1972 as a multi-faceted
forum for academics, government policy makers, and industry and union
representatives to formulate positions on public policy issues. We
convene scientific meetings to address public health policy issues
involving occupational and environmental health to provide a scientific
basis for informed public policy decision-making.
We believe this proposed bill will impede efforts to protect worker
and community health and safety.
Thank you for considering our comments,
Sincerely,
Denny Dobbin,
Chair.
______
Portland Cement Association,
June 21, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: We respectfully submit this letter for the
record of the recent legislative hearing on HR 5554 on behalf of the
Portland Cement Association (PCA). PCA strongly supports HR 5554 and
extends its thanks and gratitude to you for your leadership in this
important public policy matter.
PCA is a trade association representing cement companies in the
United States and Canada. PCA's U.S. membership consists of 36
companies operating 107 plants in 34 states and distribution centers in
all 50 states servicing nearly every Congressional district. PCA
members account for more than 97 percent of cement-making capacity in
the United States and 100 percent in Canada.
Portland cement is the powder which acts as the glue or bonding
agent that, when mixed with water, sand, gravel and other materials,
forms concrete. Cement is produced from various naturally abundant raw
materials, including limestone, shale, clay and silica sand. Portland
cement is an essential construction material and a basic component of
our nation's infrastructure. It is utilized in numerous markets,
including the construction of highways, streets, bridges, airports,
mass transit systems, commercial and residential buildings, dams, and
water resource systems and facilities. The low cost and universal
availability of portland cement ensure that concrete remains one of the
world's most essential and widely used construction materials.
While PCA members support sound standards that protect the
environment and employees, our members oppose scientifically invalid,
non-consensus standards, and we do not feel the United States
government should support such standards. Non-consensus standards are
developed in closed meetings by unknown authors, which often include
federal employees and grant recipients. Yet these can influence or
become the basis for federal regulations. For example, the OSHA Hazard
Communication Rule mandates that the latest edition of the ACGIH TLVs--
a non-consensus group by their own admission--be listed on Material
Safety Data Sheets. Similarly, the MSHA Haz Com Rule mandates that the
2001 ACGIH TLVs define whether a chemical is hazardous.
These hundreds of recent ACGIH TLV were adopted by reference by
OSHA and MSHA, without mandated rulemaking proceedings to examine their
validity. Moreover, a number of DOL and HHS agency personnel served on
the ACGIH Board of Directors or Committees and adopted or authored the
recent TLVs, permitting conflicts of interest and bias to impact
government rules without public disclosure.
Non-consensus standards, like the ACGIH TLV, are scientifically
suspect since the qualifications of their authors, and even their
identity is kept secret, and they are no subjected to independent,
outside expert peer review, like true scientific work products. These
non-consensus standards not only cause harm to impacted industries
through agency actions, but they also are used in tort litigation as
alleged standards of care that have government support.
PCA members were vindicated when a non-consensus standard (the
ACGIH TLV for trona) was withdrawn by ACGIH in a public apology,
following the favorable settlement of a lawsuit against ACGIH and DOL,
in 2001 whereby ACGIH admitted that there were no health effects
supporting the TLV, and that misconduct by its agent had occurred. Yet,
adversely impacted parties should not be forced to litigate against
these government supported and sanctioned non-consensus standard
setting groups, and we believe that HR 5554 provides the needed
sunshine on government actions to prevent future abuses.
We urge passage of HR 5554, and again thank you for your
leadership.
Thomas J. Gibson,
Senior Vice President.