    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

                          HAVE OSHA STANDARDS KEPT UP
                            WITH WORKPLACE HAZARDS?

    =======================================================================

                                    HEARING

                                   before the

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                                  COMMITTEE ON
                              EDUCATION AND LABOR

                         U.S. House of Representatives

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                 HEARING HELD IN WASHINGTON, DC, APRIL 24, 2007

                                   __________

                               Serial No. 110-25

                                   __________

          Printed for the use of the Committee on Education and Labor

                           Available on the Internet:
          http://www.gpoaccess.gov/congress/house/education/index.html

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                        COMMITTEE ON EDUCATION AND LABOR

                      GEORGE MILLER, California, Chairman

    Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon,
        Chairman                             California,
    Donald M. Payne, New Jersey            Ranking Minority Member
    Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
    Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
    Lynn C. Woolsey, California          Michael N. Castle, Delaware
    Ruben Hinojosa, Texas                Mark E. Souder, Indiana
    Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
    John F. Tierney, Massachusetts       Judy Biggert, Illinois
    Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
    David Wu, Oregon                     Ric Keller, Florida
    Rush D. Holt, New Jersey             Joe Wilson, South Carolina
    Susan A. Davis, California           John Kline, Minnesota
    Danny K. Davis, Illinois             Bob Inglis, South Carolina
    Raul M. Grijalva, Arizona            Cathy McMorris Rodgers, Washington
    Timothy H. Bishop, New York          Kenny Marchant, Texas
    Linda T. Sanchez, California         Tom Price, Georgia
    John P. Sarbanes, Maryland           Luis G. Fortuno, Puerto Rico
    Joe Sestak, Pennsylvania             Charles W. Boustany, Jr.,
    David Loebsack, Iowa                     Louisiana
    Mazie Hirono, Hawaii                 Virginia Foxx, North Carolina
    Jason Altmire, Pennsylvania          John R. ``Randy'' Kuhl, Jr., New
    John A. Yarmuth, Kentucky                York
    Phil Hare, Illinois                  Rob Bishop, Utah
    Yvette D. Clarke, New York           David Davis, Tennessee
    Joe Courtney, Connecticut            Timothy Walberg, Michigan
    Carol Shea-Porter, New Hampshire

                         Mark Zuckerman, Staff Director
                       Vic Klatt, Minority Staff Director
                                     ------

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                    LYNN C. WOOLSEY, California, Chairwoman

    Donald M. Payne, New Jersey          Joe Wilson, South Carolina,
    Timothy H. Bishop, New York            Ranking Minority Member
    Carol Shea-Porter, New Hampshire     Tom Price, Georgia
    Phil Hare, Illinois                  John Kline, Minnesota
                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on April 24, 2007...................................     1
    Statement of Members:
        Price, Hon. Tom, a Representative in Congress from the State
          of Georgia, prepared statement of..........................    64
            Journal of Occupational and Environmental Medicine study
              dated February 2006, ``Evaluation of Flavorings-Related
              Lung Disease Risk at Six Microwave Popcorn Plants''....    48
        Wilson, Hon. Joe, ranking minority member, Subcommittee on
          Workforce Protections......................................     3
            Prepared statement of....................................     4
            Prepared statement of the Printing Industries of America,
              Inc. (PIA).............................................    69
            Prepared statement of the Tree Care Industry Association
              (TCIA).................................................    71
        Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
          Protections................................................     1
            Letter submitted by Adam M. Finkel, Sc.D., CIH...........    64
            OSHA news release dated April 24, 2007, ``U.S. Department
              of Labor's OSHA Announces Focus on Health Hazards of
              Microwave Popcorn Butter Flavorings Containing
              Diacetyl''.............................................    32

    Statement of Witnesses:
        Fellner, Baruch, attorney, Gibson, Dunn & Crutcher...........    14
            Prepared statement of....................................    16
        Foulke, Hon. Edwin, Assistant Secretary of Labor,
          Occupational Safety and Health Administration..............     5
            Prepared statement of....................................     7
        Mirer, Frank, professor of environmental and occupational
          health sciences, Hunter School of Urban Public Health......    18
            Prepared statement of....................................    20
        Peoples, Eric, former employee of Glister-Mary Lee popcorn
          factory....................................................     9
            Prepared statement of....................................    10
            ``Popcorn-Worker Lung Caused by Corporate and Regulatory
              Negligence,'' published in the International Journal of
              Occupational Health, dated Jan.-Mar. 2007..............    34
        Schneider, Scott, director of occupational safety and health,
          Laborers' Health and Safety Fund of North America..........    11
            Prepared statement of....................................    12

                          HAVE OSHA STANDARDS KEPT UP
                            WITH WORKPLACE HAZARDS?

                                  ----------

                            Tuesday, April 24, 2007

                         U.S. House of Representatives

                     Subcommittee on Workforce Protections

                        Committee on Education and Labor

                                 Washington, DC

                                  ----------

        The subcommittee met, pursuant to call, at 1:37 p.m., in
    Room 2175, Rayburn House Office Building, Hon. Lynn Woolsey
    [chairwoman of the subcommittee] presiding.
        Present: Representatives Woolsey, Payne, Bishop of New
    York, Hare, Wilson, Price, and Kline.
        Staff present: Aaron Albright, Press Secretary; Tylease
    Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional;
    Lynn Dondis, Senior Policy Advisor for Subcommittee on
    Workforce Protections; Michael Gaffin, Staff Assistant, Labor;
    Peter Galvin, Senior Labor Policy Advisor; Jeffrey Hancuff,
    Staff Assistant, Labor; Brian Kennedy, General Counsel; Joe
    Novotny, Chief Clerk; Megan O'Reilly, Labor Policy Advisor;
    Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff
    Director; Robert Borden, General Counsel; Ed Gilroy, Director
    of Workforce Policy; Rob Gregg, Legislative Assistant; Victor
    Klatt, Staff Director; Jim Paretti, Workforce Policy Counsel;
    Molly McLaughlin Salmi, Deputy Director of Workforce Policy;
    Linda Stevens, Chief Clerk/Assistant to the General Counsel;
    and Loren Sweatt, Professional Staff Member.
        Chairwoman Woolsey [presiding]. The hearing of the
    Workforce Protection Subcommittee on ``Have OSHA Standards Kept
    Up With Workplace Hazards?'' will come to order.
        Pursuant to Committee Rule 12(a), any member may submit an
    opening statement in writing which will be made part of the
    permanent record.
        I now recognize myself, followed by Ranking Member Joe
    Wilson, who is running over here as we speak, for an opening
    statement.
        In 1970, the United States Congress passed the Occupational
    Safety and Health Act, OSHA, to provide every working man and
    woman in the nation a safe and healthful workplace. One of the
    most important roles that it gave the new agency was to develop
    safety and health standards.
        The standards that OSHA has established have saved
    literally thousands of lives. For example, in 1978, when OSHA's
    cotton dust standard was adopted, there were 40,000 cases of
    brown lung disease annually. Twelve percent of all textile
    workers suffered from this deadly disease. By the year 2000,
    and because of the OSHA standard, brown lung had virtually been
    eliminated. OSHA's 1978 standard on lead dramatically reduced
    lead poisoning. And the 1989 evacuation standard, designed to
    protect workers from trench collapse, has reduced deaths by
    more than 20 percent, while construction activity has actually
    increased by 20 percent.
        OSHA has made an enormous difference in workers' lives, but
    sadly many workers are still at risk from unsafe conditions in
    their workplaces. The Bureau of Labor Statistics reported that
    in the year 2005 there were over 5,700 workers, or 16 workers a
    day, killed in the workplace.
        In addition to terrible fatalities, there are millions more
    workers like Mr. Peoples, who is here to speak with us today as
    a witness, who suffer from injuries and illnesses based on
    their working conditions.
        This is not a time to slow down on protecting worker
    safety. But yet that is what the administration has done. There
    are various areas where OSHA has failed to do its job, and over
    the coming months, this committee will look into those
    failures.
        Today's hearing will focus on standard setting. And in this
    arena, the administration has the worst record on standard
    setting of any administration in the history of the law.
        The administration began on a tragic note for American
    workers with the shameful repeal of OSHA's ergonomic standards.
    That was followed by the removal of dozens of rules from the
    regulatory agenda, including the standard to protect health
    care workers against tuberculosis.
        I pray that we don't live to regret this when extremely
    drug-resistant T.B., which is killing two-thirds of those who
    get it in South Africa, arrives. If that reaches this nation in
    significant numbers, we don't have any standards. We don't know
    what to do about it in our workplace.
        To date, this administration has issued only one
    significant health standard protecting workers against a
    cancer-causing chemical called chemical hexavalent chromium.
    And that standard was issued under court order; it was not done
    voluntarily.
        One of the worst failures of this administration is its
    failure to issue a rule that requires employers to pay for
    employees' personal protection equipment. This rule was almost
    finished during the Clinton administration. Seven years later,
    OSHA has finally agreed to issue this standard, again under the
    threat of a court order.
        Today we will hear the tragic story of Eric Peoples, who
    has popcorn lung disease and has lost much of his lung
    capacity. He faces, because of his exposure to a chemical,
    possibly a shorter life than others his age.
        And that chemical is called diacetyl, and it is used in
    butter flavoring for popcorn. The industry and OSHA are well-
    aware that exposure to diacetyl has dire health consequences
    for workers, but OSHA has yet to initiate regulatory action.
        In fact, the entire area of chemical regulation is a
    travesty. OSHA currently regulates only about 600 chemicals out
    of the tens of the thousands used in industry. Most Americans
    would be shocked to learn that these standards are based on
    science from the 1950s and the 1960s.
        I am also concerned that OSHA is substituting voluntary
    programs for enforceable standards. We want to know what
    evidence OSHA has to argue that these voluntary programs are
    effective replacements for OSHA standards.
        We owe it to our workers to protect their health and
    safety, which is what Cal-OSHA, my home state's program, is
    doing.
        For example, in response to a union petition, Cal-OSHA is
    currently proceeding on the fast track to develop a standard
    for diacetyl and in conducting aggressive inspections of
    facilities that use this chemical in their operations. In
    addition, in contrast to federal OSHA, Cal-OSHA is also working
    on updating large numbers of its chemical standards.
        The purpose of this hearing today is to begin to understand
    why OSHA is not even coming close to fulfilling its original
    mission and what we can do to correct it.
        With that, I defer to the ranking member, Joe Wilson, who
    has sprinted here, for his opening statement.
        Mr. Wilson. Thank you, Madam Chairman. And indeed, I did
    sprint here.
        And good afternoon. I would like to thank our witnesses for
    appearing before us today for what I know will be an
    interesting discussion about the work of the Occupational
    Safety and Health Administration.
        This hearing is focused on the standard-setting process at
    OSHA. Some parties may be critical of the rulemaking process,
    the length of time required to create a regulation, and how
    difficult it is for OSHA to prioritize its regulatory agenda.
        It is interesting, though, to look at the statistics. The
    Clinton administration promulgated 36 standards, three of them
    in the last month of the term. To date, the Bush administration
    has implemented 22 standards, with more than a year left in the
    term. So from the outset, the pace of regulatory rulemaking has
    not changed. The question may be of the priorities.
        One area that OSHA has struggled with is an update of the
    permissible exposure limits, or PELs. Our late and dear
    colleague, Charlie Norwood, attempted to bring all parties
    together to work on an update of the PELs, but this process
    stagnated.
        OSHA's attempt to update the PELs was turned back by the
    11th Circuit Court of Appeals. It is important for us to find a
    way to achieve the goals of the OSHA act, and I am pleased that
    this is one area where the committee continues to focus its
    attention.
        For a rule to become final, it must meet several legal
    tests. Some of these have been put in place by Congress and
    some by the court system. These tests are designed to improve
    the process by which workplaces are deemed safe from hazards.
        I will be interested to hear from our witnesses if these
    procedures improve standard setting and any suggestions they
    may have to improve OSHA's standard setting in the future.
        Again, I look forward to the witnesses' testimony. I,
    indeed, also look forward to working with Congresswoman Woolsey
    for promoting health and safety. And I thank you for being here
    today to appear before us.
        [The prepared statement of Mr. Wilson follows:]

        Prepared Statement of Hon. Joe Wilson, Ranking Minority Member,
                     Subcommittee on Workforce Protections

        Thank you Madam Chair and good afternoon. I would like to thank our
    witnesses for appearing before us today for what I know will be an
    interesting discussion about the work of the Occupational Safety and
    Health Administration. This hearing is focused on the standard setting
    process at OSHA. Some parties may be critical of the rulemaking
    process, the length of time required to create a regulation, and how
    difficult it is for OSHA to prioritize its regulatory agenda. It is
    interesting, however, to look at the statistics. The Clinton
    Administration promulgated 36 standards, three of them in the last
    month of the term. To date, the Bush Administration has implemented 22
    standards with more than a year left in the term. So, from the outset,
    the pace of regulatory rulemaking has not changed. The question may be
    the priorities.
        One area that OSHA has struggled with is an update of the
    permissible exposure limits or PELs. Our former colleague Charlie
    Norwood attempted to bring all parties together to work on an update of
    the PELs, but this process stagnated. OSHA's attempt to update the PELs
    was turned back by the 11th Circuit Court of Appeals. It is important
    for us to find a way to achieve the goals of the OSH Act and I am
    pleased this is one area on which the Committee continues to focus its
    attention.
        For a rule to become final it must meet several legal tests. Some
    of these have been put into place by Congress and some by the Court
    system. These tests are designed to improve the process by which
    workplaces are deemed safe from hazards. I will be interested to hear
    from our witnesses if these procedures improve standard setting and any
    suggestions they may have to improve OSHA's standard setting in the
    future.
        Again I look forward to the witnesses' testimony and thank them for
    making the effort to appear before us today.
                                     ______

        Chairwoman Woolsey. Without objection, all members will
    have 14 days to submit additional materials or questions for
    the hearing record.
        I would like to introduce our very distinguished panel of
    witnesses who are here before us this afternoon.
        And I welcome all of you witnesses. Thank you for being
    here.
        For those of you who have testified before the committee in
    the past, you won't need me to explain this, but if you
    haven't, I need to explain our lighting system and the 5-minute
    rule.
        Everyone, including members of Congress, are limited to 5
    minutes for presenting or questioning. The green light is
    illuminated when you begin to speak. When you see the yellow
    light, it means you have 1 minute remaining. When you see the
    red light, it means your time has expired and you need to
    conclude your testimony. Don't think for a minute you have to
    stop mid-sentence or mid-thought. But it will let you know that
    you have used your 5 minutes.
        And be certain that, as you testify, we want you to turn on
    your speaker so we can hear you, and talk directly into the
    microphone.
        So our witnesses today are the honorable Edwin Foulke. He
    is the Assistant Secretary of Labor and the administrator of
    OSHA. Prior to his current position, he was a partner in the
    law firm of Jackson Lewis LLP, practicing in the area of labor
    relations. From 1990 to 1995, Mr. Foulke served on the
    Occupational Safety and Health Review Commission and was its
    chair from 1990 to 1994. He graduated from North Carolina State
    University and holds a J.D. from Loyola University and a
    master's of law from Georgetown.
        Scott Schneider--Scott, for the last 9 years, has been the
    director of occupational safety and health for the Laborers'
    Health and Safety Fund of North America.
        I am looking at what order we have you in here. Well, we
    are going to go down the order as you are, not as I am
    introducing you.
        The Laborers' Union has over 800,000 members who are
    primarily construction workers. Mr. Schneider holds a master's
    degree in industrial hygiene from the University of Pittsburgh
    and a master's degree in zoology from the University of
    Michigan.
        Eric Peoples--Eric was an oil mixer at the Glister-Mary Lee
    Popcorn Factory in Jasper, Missouri. He was born in Joplin. He
    was raised in Carthage, Missouri, and he currently resides in
    Carthage. He is a graduate of Carthage High School.
        Baruch Fellner--Mr. Fellner is a partner at Gibson Dunn &
    Crutcher in Washington, D.C., practicing in the area of labor
    relations. He has also worked in the solicitor's office at the
    Department of Labor and in the Appellate Court branch at the
    National Labor Relations Board. Mr. Fellner received his B.A.
    from George Washington University and his law degree from
    Harvard Law School.
        Franklin Mirer--Franklin Mirer is a professor of
    environmental and occupational health sciences at Hunter
    College in New York. For over 27 years, he was the director of
    the health and safety department at the United Auto Workers.
    Dr. Mirer received his bachelor's degree from Columbia and his
    master's and Ph.D. from Harvard University.
        Welcome to all of you.
        And we will begin with you, Mr. Assistant Secretary.

       STATEMENT OF EDWIN FOULKE, ASSISTANT SECRETARY OF LABOR,
             OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

        Mr. Foulke. Thank you very much, Madam Chairwoman and
    members of the subcommittee.
        Before I begin, I would request a brief moment to
    personally address Mr. Eric Peoples, sitting next to me, whose
    testimony here today brings in compelling terms how devastating
    an occupational illness or injury can be to the employees and
    to their families.
        Mr. Peoples, I assure you that all of us at OSHA--and we
    have a number of the career staff here--are working hard to
    improve safety and health in our nation's workplaces.
        Members of this subcommittee, thank you for the opportunity
    to appear here today to discuss the progress that the
    Occupational Safety and Health Administration is making to
    protect the nation's working men and women.
        OSHA has a strong record of protecting the safety and
    health of our nation's workers, and I am pleased to have this
    opportunity to discuss the record with the subcommittee.
        OSHA uses a variety of proven strategies to accomplish its
    mission of saving lives and reducing injuries and illnesses.
    This balanced approach includes strong, fair and effective
    enforcement, safety and health standards and guidance, training
    and education, and cooperative programs, compliance assistance
    and outreach.
        I want to make it clear that while the agency offers
    technical assistance to employers to comply with OSHA standards
    and regulations, compliance is not voluntary. It is mandatory.
    In fact, since 2001, OSHA proposed more than $750 million in
    penalties for safety and health violations.
        Furthermore, the record high number of 56 criminal
    referrals by this administration since 2001, the most of any
    administration, indicates the seriousness of the President's
    commitment to protecting employees and enforcing the law.
        This commitment approach is achieving all-time low rates.
    For example, the overall workplace injury and illness rate, at
    4.6 per 100 employees in 2005, is the lowest since the Bureau
    of Labor Statistics began publishing data in 1973. Since 2002,
    the injury and illness rate has fallen by more than 13 percent.
    More importantly, the overall fatality rate has fallen 7
    percent, and fatality rates among Hispanics has declined by 18
    percent since 2001.
        Although this is unprecedented progress, we all acknowledge
    that there is still much more work left to do to accomplish the
    goals of having all working men and women return home safe and
    healthy at the end of every day.
        Setting safety and health standards is a critical part of
    our balanced approach to protecting workers. Currently, OSHA is
    actively working on 21 projects which include four final rules,
    10 proposed rules, two Regulatory Flexibility Act section 610
    look-backs, and five other projects in early stages of
    development.
        I am pleased to report that the Agency has devoted
    substantial resources to each of these regulatory projects,
    including the payment for personal protective equipment rule,
    which we expect to complete by November of this year.
        With respect to silica, the Agency expects to issue a draft
    analysis on the health effects and the risk assessment as part
    of a scientific peer-review process. The peer-review process is
    necessary and appropriate in the case of silica, due to the
    extensive scientific literature and the complexity of the
    subject. Conducting such a peer review will ensure that
    appropriate regulatory decisions are based on firm scientific
    foundation.
        Let me conclude by saying that employers and employees
    should have no doubt in their minds about OSHA's commitment to
    enforcing the standards and regulations promulgated under the
    Occupational Safety and Health Act.
        The Agency's history of strong enforcement has demonstrated
    the serious consequences employers face when they neglect their
    responsibility of providing safe and healthful workplaces for
    their employees. In fact, OSHA conducted more than 38,000
    federal inspections in 2006 and has exceeded its inspection
    goals in each of the last 7 years.
        OSHA's aggressive enforcement record, coupled with the fact
    that more than one-quarter of all OSHA-related criminal
    referrals to the Department of Justice have occurred since 2001
    illustrates the administration's strong commitment and desire
    to protect employees and rightfully enforce the law.
        To complement these enforcement efforts, the Agency will
    continue to provide the regulating committee with much needed
    knowledge, tools and assistance to comply with the law.
        Madam Chair, I would be happy to answer any questions that
    you or the committee may have. And I believe we have submitted
    a longer statement for the record.
        [The statement of Mr. Foulke follows:]

       Prepared Statement of Edwin G. Foulke, Jr., Assistant Secretary,
    Occupational Safety and Health Administration, U.S. Department of Labor

        Madam Chairwoman and Members of the Subcommittee: Thank you for the
    opportunity to appear today to discuss the progress that the
    Occupational Safety and Health Administration (OSHA) is making to
    protect the Nation's working men and women. OSHA has a strong record of
    protecting the safety and health of our Nation's workers, and I am
    pleased to have the opportunity to discuss that record with the
    Subcommittee.
        The Occupational Safety and Health Act (OSH Act) was enacted in
    1970 to protect employees from hazards that may cause injury, illness,
    or death, and we take our obligations under this statute very
    seriously. We are proud of our record of results.
        OSHA uses a variety of proven strategies to accomplish its mission
    of saving lives and reducing injuries and illnesses. This balanced
    approach includes: 1) strong, fair, and effective enforcement; 2)
    safety and health standards and guidance; 3) training and education;
    and 4) cooperative programs, compliance assistance and outreach. I want
    to make it clear, however, that, while we offer technical assistance to
    employers to comply with OSHA standards, compliance is not voluntary.
    There is no such term or practice as ``voluntary compliance.''
        In fact, since 2001, as part of its strong enforcement program,
    OSHA proposed more than three-quarters of a billion dollars in
    penalties for safety and health violations and made 56 criminal
    referrals to the Department of Justice, which represents more than 25
    percent of all criminal referrals in the history of the Agency.
        OSHA's balanced strategy is achieving results, as evidenced by all-
    time low occupational injury, illness, and fatality rates. The overall
    workplace injury/illness rate, at 4.6 per 100 employees in 2005, is the
    lowest since BLS began publishing data in 1973. Since 2002, the injury/
    illness rate has fallen by more than 13%. Moreover, the overall
    fatality rate has fallen by 7 percent, and by 18 percent among
    Hispanics, since 2001. These numbers highlight the Administration's
    commitment and success in protecting the safety and health of the
    Nation's workforce.
        A key component of OSHA's balanced approach is the development of
    protective safety and health standards and regulations. OSHA has set
    ambitious goals for its regulatory program as evidenced by its
    regulatory agenda published in the Federal Register last December. Let
    me assure you that the Agency is fully committed to achieving these
    goals.
        As you are aware, rulemaking for safety and health standards is a
    complex process, which is governed by more than 30 years of
    Congressional, Judicial, and Executive Branch mandates. For example, as
    a result of judicial interpretations of the OSH Act, the Agency must
    study the feasibility and potential impacts of its standards in more
    depth than was the case early on in OSHA's history. In addition, the
    science impacting regulatory decisions has increased over the years in
    both volume and complexity.
        OSHA has set ambitious goals under its current regulatory program.
    OSHA is actively working on 21 projects which include: four final
    rules, ten proposed rules, two Regulatory Flexibility Act Section 610
    ``lookbacks,'' and other projects in the early stages of development.
    The Agency has devoted substantial resources to each of these
    regulatory projects, and I am committed to doing everything in my power
    to achieve these goals.
        OSHA's recent substantial progress on its regulatory program, in
    part, includes:
        1. Amending the Respiratory Protection Standard
        2. Completing the SBREFA process for Cranes & Derricks
        3. Publishing an Advanced Notice of Proposed Rulemaking (ANPRM) to
    amend the Hazard Communication Standard for global harmonization of
    classifying and labeling chemicals
        4. Publishing an ANPRM for the Standards Improvement Project
        5. Holding stakeholder meetings on ionizing radiation
        6. Publishing a final standard on Fire Protection in Shipyards
        7. Publishing a final standard for Electrical Equipment
    Installations
        8. Publishing a proposed standard on Explosives
        In addition, OSHA is diligently working on a number of other
    regulatory agenda items, such as the Payment for Personal Protective
    Equipment (PPE) rule, which we expect to complete by November 2007. The
    Agency will soon be issuing an ANPRM on mechanical power presses, and
    final or proposed rules to update a number of standards based on recent
    consensus standards.
        With respect to silica, the Agency expects to issue a draft
    analysis on the health effects and risk assessment as part of a
    scientific peer review process. The peer review process is necessary
    and appropriate in the case of silica due to the extensive scientific
    literature and complexity of the subject. Conducting such a peer review
    will ensure that appropriate regulatory decisions are based on a firm
    scientific foundation.
        OSHA has also received two petitions for Emergency Temporary
    Standards (ETS) to address important workplace health issues: pandemic
    flu preparedness and diacetyl in food flavorings.
    Pandemic Flu:
        The Occupational Safety and Health Act (OSH Act) Section 6(c)(1)
    states that an ETS is to be issued when ``employees are exposed to
    grave danger from exposure to substances or agents determined to be
    toxic or physically harmful or from new hazards'' and OSHA can show
    ``that the emergency temporary standard is necessary to protect
    employees from such danger.'' Currently, all available medical evidence
    indicates that no human influenza pandemic virus exists. Therefore OSHA
    cannot, at this time, meet the legal requirements of the OSH Act to
    issue an ETS on pandemic flu and OSHA has denied the ETS petition. This
    does not mean that OSHA is sitting back and waiting for a pandemic to
    strike before taking any action.
        To the contrary, OSHA has taken measures to assist employers and
    workers to prepare for and respond to a pandemic influenza. OSHA has
    worked closely with the White House, the Department of Health and Human
    Services (HHS), and the Department of Homeland Security (DHS) and other
    Federal agencies to implement the President's National Strategy for
    Pandemic Influenza. As part of this effort, OSHA developed a guidance
    document entitled: Preparing Workplaces for an Influenza Pandemic,
    which helps employers and workers assess risk levels and provides
    guidance on how to plan now for a possible pandemic in the future. The
    Agency is also developing guidance specifically for the health care
    industry that includes recommendations for respiratory protection. Up-
    to-date information on pandemic flu preparedness is provided through
    www.OSHA.gov and www.pandemicflu.gov. Essentially, OSHA has already put
    in place the protections and policies that would be used should a
    pandemic strike.
    Diacetyl:
        In 2001, OSHA took immediate action when the hazard of butter
    flavorings containing diacetyl was brought to the Agency's attention by
    NIOSH's interim report on microwave popcorn manufacturing plants. The
    report's findings indicated that uncontrolled exposure to butter
    flavorings containing diacetyl was associated with the development of a
    severe obstructive lung disease called bronchiolitis obliterans.
        OSHA promptly alerted its Regional Administrators and Area
    Directors to NIOSH's findings and instructed its field personnel to
    look into the issue when encountering individuals working around butter
    flavoring in popcorn manufacturing. OSHA's Region VII published a
    brochure on this topic and arranged for its distribution in the region.
    In 2004, OSHA issued a memorandum to senior field managers and
    encouraged them to contact employers in their regions who may have
    workers exposed to this potential hazard.
        To further protect workers who may be exposed to this hazard, OSHA
    is finalizing a National Emphasis Program (NEP) for butter flavorings
    containing diacetyl in the manufacturing of microwave popcorn. The goal
    is to direct inspections to the facilities where workers may be at the
    greatest risk of exposure to this hazard. In addition, the NEP contains
    elements aimed at educating stakeholders about the hazard posed by
    butter flavorings containing diacetyl. Implementation of this NEP would
    allow OSHA to begin inspecting microwave popcorn manufacturing
    facilities by the end of May, and to inspect every such facility under
    Federal jurisdiction by the end of this year. This will be followed by
    a second NEP that focuses on establishments manufacturing food
    flavorings containing diacetyl.
        OSHA is also developing guidance to alert employers and workers to
    the potential hazards associated with food flavorings containing
    diacetyl. The guidance will provide recommendations on how to control
    these hazards and to ensure that information about those hazards is
    effectively communicated to workers.
        The Agency is currently reviewing the petition for an Emergency
    Temporary Standard and is engaged in site visits to microwave popcorn
    and flavor manufacturing facilities in order to fairly evaluate the
    merits of the petitioner's request.
        Employers and workers should have no doubt about OSHA's commitment
    to enforcing the standards and regulations promulgated under by the OSH
    Act. The Agency's history of strong enforcement has demonstrated the
    serious consequences employers face when they neglect their
    responsibility of providing safe and healthful workplaces for their
    workers. In fact, OSHA conducted 38,579 Federal inspections in 2006 and
    has exceeded its inspection goals in each of the last 7 years. OSHA's
    aggressive inspection record, coupled with the fact that more than one-
    quarter of all criminal referrals to the Department of Justice in the
    Agency's history have occurred since 2001, indicates the seriousness of
    the Administration's commitment to protecting workers and enforcing the
    law.
        At the same time, the Agency is committed to providing the
    regulated community with the knowledge, tools, and assistance needed to
    comply with the law. By using all of OSHA's programs effectively, the
    Agency is able to save a significant number of lives each year. More
    workers return home safely each day because of the efforts of OSHA, its
    State Plan partners and all stakeholders who are committed to
    protecting employees from occupational hazards.
        Madam Chairwoman, I would be happy to answer any questions.
                                     ______

        Chairwoman Woolsey. Thank you, Mr. Secretary.
        Mr. Peoples?

    STATEMENT OF ERIC PEOPLES, FORMER EMPLOYEE OF GLISTER-MARY LEE
                            POPCORN FACTORY

        Mr. Peoples. My name is Eric Peoples. I was born in Joplin,
    Missouri, and raised in Carthage, Missouri, where I currently
    reside. I am 35 years old and have been married to Cassandra
    Peoples for 14 years. I have two children: Adrianna, age 13,
    and Brantley, age 11.
        I have bronchiolitis obliterans. Bronchiolitis obliterans
    is a severe, progressive disease of the lung which has robbed
    me of my health, deprived my wife of a husband and my children
    of a daddy. A jury awarded me $20 million for my injuries.
        I went to work at the Jasper popcorn plant in the fall of
    1997 and left in March of 1999. I would give anything to know
    then what I know now.
        At the time I was in perfect health, looking forward to a
    long and healthy life. The plant was run by local people and
    was one of the best jobs in the area. My co-workers were kind,
    honest people and treated me well the entire time that I worked
    there.
        The plant manufactured microwave popcorn. The process
    combined oil, popcorn, butter flavor, salt, into microwaveable
    bags. I was promoted soon after I started and became a mixer.
        The following facts are only known to me because they were
    discovered in my lawsuit in 2004. What the Jasper plant did not
    know was that the butter flavor that they were using had an
    increased quantity of diacetyl, a ketone that imparts a buttery
    taste. Many butter flavors contain about 3 percent diacetyl.
    This butter flavor contained 10 percent.
        The company that supplied the butter flavor, Bush Boake
    Allen, a subsidiary of International Flavors and Fragrances,
    IFF, had extensive notice about hazards of butter flavor. They
    treated butter flavor as a hazardous material within their own
    plant.
        Since at least 1994, their own workers were required to
    wear respiratory protection when working around the butter
    flavor. Despite wearing full-face respirators, many of the
    employees suffered severe eye injuries. Because of the damage
    and dangers of the product, the entire manufacturing process
    was enclosed so no one would be exposed to the vapors.
        In addition, information had come to IFF about the
    respiratory effects of exposure to diacetyl. In 1986, two
    employees of a baking company had been diagnosed with
    bronchiolitis obliterans while mixing a butter flavoring for
    use in the cinnamon rolls.
        IFF's trade organization, the Flavoring and Extract
    Manufacturers Association, or FEMA, supplied experts to the
    defendants in the case. The case was settled before trial.
        In 1994, BASF Chemical Company, a supplier of diacetyl,
    sent IFF a material safety data sheet, MSDS, which disclosed
    rats that had inhaled the chemical diacetyl developed severe
    respiratory problems, including emphysema.
        Additionally, another flavor company, Givaudan, had
    reported to FEMA that in 1996 flavoring chemicals were causing
    bronchiolitis obliterans in their plant. FEMA had a seminar in
    1997 warning flavoring companies about this danger.
        Despite all of this information, the buckets containing
    this product said the product was safe. The material safety
    data sheet said the product had no known health hazards, and
    that is what I believed.
        Let me bring it home for you, if I can. I have a 20 percent
    lung capacity. I am currently on the inactive lung transplant
    registry. One case of pneumonia could cause me to need the
    transplant now.
        The average rate of survival for someone with a lung
    transplant is about 5 years. Seventy-five percent of lung
    transplant patients are dead after 10 years.
        One of the doctors who worked on the first case involving
    the two workers with bronchiolitis obliterans in 1990 said the
    flavoring industry was using workers as blue collar guinea
    pigs.
        I played by the rules. I worked to support my family. The
    unregulated industry virtually destroyed my life. Don't let it
    destroy the lives of others. These chemicals that are used on
    food in large-scale production must be tested and proper
    instructions and labeling supplied with their sale.
        Thank you.
        [The statement of Mr. Peoples follows:]

    Prepared Statement of Eric Peoples, Former Employee of Glister-Mary Lee
                                Popcorn Factory

        My name is Eric Peoples. I was born in Joplin, Missouri and raised
    in Carthage, Missouri where I presently reside. I am 35 years old and
    have been married to Cassandra Peoples for 14 years. I have two
    children, Adrianna, age 13 and Brantley, age 11. I have bronchiolitis
    obliterans. Bronchiolitis obliterans is a severe, progressive disease
    of the lung which has robbed me of my health, deprived my wife of a
    husband and my children of a Daddy. A jury awarded me $20 million
    dollars for my injuries.
        I went to work at the Jasper Popcorn Company in the fall of 1997
    and left in March, 1999. I would give anything to have known then what
    I know now. At that time I was in perfect health, looking forward to a
    long, healthy life. The plant was run by local people and was one of
    the best jobs in the area. My co-workers were kind, honest people and
    treated me well the entire time I worked there.
        The plant manufactured microwave popcorn. The process combined
    popcorn, oil, butter flavor and salt into microwaveable bags. I was
    promoted soon after I started there and became a mixer.
        The following facts are only known to me because they were
    discovered in my lawsuit in 2004. What the Jasper Plant did not know
    was that the butter flavor they were using had an increased quantity of
    diacetyl, a ketone that imparts a buttery taste. Many butter flavors
    contain about 3% diacetyl. This butter flavor contained 10%.
        The company that supplied the butter flavor, Bush Boake Allen, a
    subsidiary of International Flavors & Fragrances (IFF) had extensive
    notice about the hazards of butter flavor. They treated butter flavor
    as a hazardous chemical within their own plant. Since at least 1994
    their own workers were required to wear respiratory protection when
    working around the butter flavor. Despite wearing full-face respirators
    many of their employees suffered severe eye injuries. Because of the
    dangers of the product the entire manufacturing process was enclosed so
    no one could be exposed to the vapors.
        In addition, information had come to IFF about the respiratory
    effects of exposure to diacetyl. In 1986, two employees of a baking
    company had been diagnosed with bronchiolitis obliterans while mixing a
    butter flavoring for use on cinnamon rolls. IFF's trade organization,
    the Flavoring and Extract Manufacturers Association (FEMA), supplied
    experts to the defendants in the case. The case was settled before
    trial.
        In 1994 BASF Chemical Company, a supplier of diacetyl sent IFF a
    Material Safety Data Sheet (MSDS) which disclosed rats that had inhaled
    the chemical diacetyl developed severe respiratory problems including
    emphysema. Additionally, another flavor company, Givaudan, had reported
    to FEMA in 1996 that flavoring chemicals were causing bronchiolitis
    obliterans in their plant. FEMA had a seminar in 1997 warning flavoring
    companies about this danger.
        Despite all this information the buckets containing this product
    said the product was safe. The Material Safety Data Sheets said the
    product had ``no known health hazards'' and that's what I believed.
        Let me bring it home to you if I can. I have a 24% lung capacity. I
    am currently on the inactive Lung Transplant registry. One case of
    pneumonia could cause me to need the transplant now. The average rate
    of survival for someone with a lung transplant is about five years. 75%
    of lung transplant patients are dead after 10 years.
        One of the doctors who worked on the first case involving the two
    workers with bronchiolitis obliterans in 1990 said that the flavoring
    industry was using workers as ``blue collar guinea pigs.''
        I played by the rules. I worked to support my family. This
    unregulated industry virtually destroyed my life. Don't let it destroy
    the lives of others. These chemicals that are used on food in large
    scale production must be tested and proper instructions and labeling
    supplied with their sale.
                                     ______

        Chairwoman Woolsey. Thank you.
        Mr. Schneider?

     STATEMENT OF SCOTT SCHNEIDER, DIRECTOR OF OCCUPATIONAL SAFETY
     AND HEALTH, LABORERS' HEALTH AND SAFETY FUND OF NORTH AMERICA

        Mr. Schneider. Thank you very much for the opportunity to
    testify today. I appreciate it. It is an important hearing.
        The OSHA standard-setting process is broken. There are
    several reasons for this: first, an inadequate budget for
    setting standards; second, the layers of review that have been
    added over the years by Congress and the White House; and
    third, the lack of political will.
        The silica standard is a good example. Silica causes a
    debilitating lung disease called silicosis. It is estimated
    that 3,600 to 7,300 people will get silicosis each year. Ten
    years ago, silica was declared a carcinogen, and OSHA and NIOSH
    held a national conference to eliminate silicosis.
        The OSHA standard is so out of date it requires a
    measurement method that hasn't been used in industry since 1983
    and OSHA itself has called obsolete. OSHA still has not
    committed to a date for publishing a proposed rule.
        Setting standards for construction has been particularly
    problematic. Many standards are set for general industry that
    exclude construction with the promise to eventually extend
    coverage. Often this doesn't happen or only happens years
    later.
        Hearing loss prevention is a worst-case example. In 1983,
    OSHA published a hearing conservation standard for general
    industry, promising to come out with one for construction
    later. Now, 24 years later, we still don't have coverage. OSHA
    has not even committed to publishing a proposal. In the
    meantime, thousands of construction workers continue to lose
    their hearing.
        Other states, like California and Washington, are
    regulating some of these hazards. Why can't OSHA? This
    committee should demand a response from OSHA and a plan to move
    forward. Congress should consider a number of solutions to this
    problem, including, first, a standards board like the one used
    in California.
        Second, setting time limits for OSHA to respond to
    petitions with the burden on them to explain any denials, and
    time limits for moving forward to a proposal and a final rule.
        Third, rulemaking could be expedited if notices of proposed
    rulemaking could be published with less review since they do
    not represent a final standard.
        And fourth, emergency temporary standards should be
    expanded for any hazards that present a high risk.
        The current system is broken and needs a serious fix. And I
    appreciate this committee taking the first step by holding this
    hearing. And I will submit my full statement for the record.
        Thank you very much.
        [The statement of Mr. Schneider follows:]

        Prepared Statement of Scott P. Schneider, MS, CIH, Director of
      Occupational Safety and Health, Laborers' Health and Safety Fund of
                                 North America

        My name is Scott Schneider. I am the Director of Occupational
    Safety and Health for the Laborers' Health and Safety Fund of North
    America, a joint labor-management fund of the Laborers' International
    Union of North America (LIUNA) and its signatory contractors. The
    Laborers' Union represents about 800,000 mostly construction workers in
    the United States and Canada. I am a Certified Industrial Hygienist and
    a Fellow member of the American Industrial Hygiene Association. I have
    been working on occupational safety and health issues for the Labor
    movement for over 26 years. I am also a former member of the OSHA
    Advisory Committee for Construction Safety and Health (ACCSH).
        The OSHA Act was passed with the promise to protect workers in
    America from death and serious injury and illness on the job. That
    promise has been broken.
        My first introduction to OSHA rulemaking came in 1984 when I
    testified at an OSHA hearing on a proposed asbestos standard. My
    daughter was born during those hearings. It took OSHA 10 years to
    finalize that rule. Each year I would remind the folks at OSHA what
    grade my daughter was in at school until the final rule was issued when
    she was almost entering middle school. The delays in this instance were
    not in the process itself so much, the rule was published two years
    after the hearing, but from the litigation after because the published
    rule was not protective enough. Now, however, the delays occur much
    earlier, before the proposals are even published. It was an early
    lesson for me about the difficulty we face in gaining protection for
    workers.
        When OSHA was created in 1970, OSHA standards were conceived as one
    leg of a three legged stool--standards, enforcement and outreach. While
    regulations cannot solve all problems, they are necessary to address
    market failures in order to keep the playing field level and set a
    minimum standard for all employers to meet. Many OSHA standards are
    outdated and the process for updating them or setting new ones is
    broken. There are three main reasons for this:
        1) Lack of budget--only three percent of OSHA's budget--currently
    about $16 million--goes for standard setting. Currently the standards
    office is also responsible for developing guidance so the amount for
    new standards is even less.
        2) Regulatory review--Over the years layers of review have been
    heaped on OSHA causing lengthy delays in the rulemaking process. New
    rules have to go through advisory committee review, paperwork review,
    small business review, OMB review, potential Congressional review and,
    new this past year, external scientific review.
        3) Lack of political will--Many needed standards just never get put
    on the regulatory agenda or sit there for years because the
    administration is not interested in their promulgation.
        About thirteen years ago OSHA began to use ``negotiated
    rulemaking'' to speed up the process and, hopefully, avoid litigation.
    They convened a panel of industry experts, both labor and management,
    to develop a draft consensus rule. Once published, because of the
    consensus, there should be less chance of litigation. But even when
    OSHA has used negotiated rulemaking, the publication of the proposed
    rule can often take years. The new Cranes and Derricks standard for
    construction was developed by a negotiated rulemaking team through
    monthly meetings over the course of one year. Consensus was difficult
    but was finally achieved. Yet, almost three years later the proposed
    rule has not been published. It is currently scheduled for publication
    in October, although these deadlines have a way of slipping.
    Construction standards
        OSHA has a bad habit of setting standards for general industry and
    exempting the construction industry from coverage, promising future
    rulemaking that may never come. Meanwhile construction is one of the
    most dangerous industries in the country with 100 construction workers
    dying on the job each month. In 1993, OSHA issued a standard to protect
    workers in confined spaces from the danger of asphyxiation. This
    standard was supposed to be adapted for construction. The calendar
    claims that a proposed rule would be issued by February 2007, but again
    that hasn't happened. After 14 years, we still don't have a proposed
    rule and workers keep dying in confined space fatalities.
        In 1998, OSHA issued a general industry ``lockout/tagout'' standard
    to prevent injuries among workers doing maintenance on machinery. The
    development of a proposed standard for construction was dropped in
    September 2001 when OSHA summarily dropped over dozen proposed rules
    (including a proposal for comprehensive safety and health programs in
    construction and improving sanitation in construction) from its agenda,
    claiming it did not have the resources to pursue them all.
        While standards need to be modified to meet the unique
    characteristics of the construction industry, that should not require a
    10, 15 or 20 year delay. Such standards can and should be developed
    simultaneously with those for general industry. The nation's seven
    million construction workers do not deserve second class protection.
    Silica and Hearing Loss in Construction
        Silica is a common dust hazard in construction. Its dangers have
    been known for about three hundred years. Its cancer-causing properties
    have been well documented for over ten years. The risk estimates show
    very high risk of silicosis and cancer from exposures. Between 3,600
    and 7,300 people are estimated to get silicosis each year. At the same
    time, numerous studies document successful and inexpensive control
    methods to reduce dust levels. The measurement methods required by OSHA
    for measuring silica levels are, by their own admission, ``obsolete''
    and have not been used in voluntary standards since 1983. I'm not even
    sure how OSHA can enforce the current standard given the problems with
    measurement methods. The voluntary standard (TLV) for silica exposures
    was cut in half again last year for the second time in the past nine
    years. Yet OSHA's standard is mired in the past.
        OSHA identified silica as a priority for its rulemaking efforts in
    1994. Ten years ago OSHA and NIOSH held a National Conference to
    Eliminate Silicosis. Silica has been on the OSHA regulatory calendar
    for almost ten years. A draft standard has been developed and was
    reviewed by SBA in 2003. A peer review of the health effects data was
    to be completed this month. Yet there is still no date certain for a
    proposed rule to be published. While we wait for OSHA to move forward,
    construction workers and others continue to suffer and die from
    debilitating lung diseases and cancer as a result of this delay.
        Hearing loss is an enormous problem in construction. In 1983, OSHA
    published a hearing conservation standard for general industry that
    triggers a comprehensive hearing protection program at less than half
    the allowable exposure limit for construction workers. Construction
    workers were excluded from that standard but OSHA promised to extend
    coverage in the future. Twenty-four years later OSHA's regulatory
    calendar now lists this as a ``long-term action'' and does not commit
    the agency to issuing a standard. Seven years ago last month at a
    national conference hosted by the Laborers' Health and Safety Fund on
    preventing hearing loss in construction, a previous OSHA assistant
    secretary claimed it would be a priority for his agency. That
    commitment has been lost. In the meantime thousands of construction
    workers have lost their hearing and their quality of life. Workers who
    have lost hearing may also be in danger of their lives on the job if
    they cannot hear warnings.
        Some states have moved forward while OSHA delays. Washington State
    extended the hearing conservation standard to construction several
    years ago. New Jersey has instituted a ban on the dry cutting of
    masonry and California is expected soon to follow suit. Washington
    State has just published a tough new standard for crane safety, well
    before an OSHA rule is even proposed.
        We urge the committee to press for a report on the status of these
    rulemakings, why OSHA has not moved more quickly to address these
    serious hazards and what their plan is to move forward on both these
    critical issues.
    How can we fix this problem?
        Congress should seriously consider a legislative fix to this
    problem. Here are several options to be considered:
        1) Standards Board--California has had success with a Standards
    Board in promulgating many regulations, e.g. heat stress, safety and
    health programs, which OSHA has not even begun to consider. The Board
    has labor, management and academic members. One of LIUNA's Vice
    Presidents serves as a member of that Board.
        2) Time Limits--Congress can set time limits for OSHA to consider
    and then issue proposals and final rules. In the past Congress has
    mandated that OSHA issue rules within a six-month period and the agency
    has done so (e.g. lead, hazardous waste). Congress should give OSHA a
    limited time, say four months, to consider any petition for new
    standards and require the agency to publish a response in the Federal
    Register as to its reasons for accepting or denying the petition. The
    burden should be on the agency to show why a standard should not be
    issued. Once committed to a rule making, the agency would be given
    additional deadlines to meet to ensure that rules are issued in a
    timely manner, say no more than three years. Congress would have to
    provide additional funding for OSHA dedicated to standard setting in
    order for it to meet these deadlines.
        3) Expedited Rulemaking--Congress should streamline the rulemaking
    process. Once OSHA commits to developing a standard, a Notice of
    Proposed Rulemaking is published. These Notices of Proposed Rulemaking
    (NPR) undergo extensive review before they are published. Then they are
    reviewed by the public through a series of public hearings. The final
    rule is issued after a review of the record created through these
    public hearings. The NPR is not the final rule and should not be viewed
    as an end product. The vetting of NPRs is excessive and onerous.
    Congress should reduce the burden of proof needed for issuance of an
    NPR.
        4) Emergency Temporary Standards (ETS)--Congress should review and
    expand the ability of OSHA to issue ``emergency temporary standards.''
    This section of the Act has been undermined by court decisions and is
    not used any more because of that. Congress could define risk criteria
    that once met would allow issuance of an ETS to speed up rulemaking for
    high risk hazards.
        The current system is broken and blocked. We need a serious effort
    to solve this problem. Workers should not have to wait decades for
    needed protections. I hope Congress will take up this issue and craft a
    workable solution. This hearing is an important first step.
                                     ______

        Chairwoman Woolsey. Thank you, Mr. Schneider.
        Mr. Fellner?

     STATEMENT OF BARUCH FELLNER, ATTORNEY, GIBSON, DUNN & CRUTCHER

        Mr. Fellner. Chairwoman Woolsey, members of the Workforce
    Protection Subcommittee, my name is Baruch Fellner. I am an
    attorney with the law firm of Gibson, Dunn & Crutcher.
        Since OSHA's birth some 35 years ago, I have, as it were,
    worked both sides, having shaped OSHA's enforcement policies
    and priorities during its first decade and having questioned
    them thereafter.
        I therefore hope to bring a broad, substantive and
    historical perspective to this committee's deliberations. To
    that end, I will reject the temptation of answering the
    question posed at today's hearing with a resounding yes, yes,
    that OSHA has moved with all deliberate speed in responding to
    workplace hazards.
        That simple response is supported, indeed, by the fact that
    American workplaces, as you have heard, have become
    demonstrably safer, as evidenced by the steady decline of
    reported workplace injuries, illnesses and fatalities.
        A specific example of that process working involved an
    industry challenge to OSHA's most recent hexavalent chromium
    standard. I negotiated the settlement of that challenge on
    behalf of the electroplating industry.
        It was beneficial to all parties. It was signed by the
    industry, OSHA, by Public Citizen and by the United
    Steelworkers.
        Nevertheless, it is clear that, like any other agency
    dealing with complex scientific, technological and economic
    issues, OSHA's task is enormously difficult and time-consuming,
    and I would respectfully submit with good reason.
        First, the OSHA statute requires the Agency to make
    detailed findings of significant risk of material impairment of
    employee health and to establish technological and economic
    feasibility before it can pursue regulation of a workplace
    hazard. These are not simple tasks. And to do them in a cursory
    fashion is to invite court rejection of OSHA standards.
        Second, OSHA's regulations are on the frontiers of science.
    They rely on a variety of often conflicting retrospective,
    cross-sectional, prospective and, the gold standard, randomized
    control trial studies. Epidemiological and biostatistical
    analyses do not make OSHA's job any easier, and often intuition
    and anecdote that fuel public policy clash with evidence-based
    medicine.
        And OSHA must do all of these things based upon what the
    statute describes as the best available evidence. Therefore, in
    the context of such cutting-edge science, OSHA's task of
    establishing permissible exposures limits is, indeed, a
    daunting one.
        Third, nor can OSHA simply cut through all this complexity
    and recognize a few studies that seem to point in the direction
    of most protective standard it can promulgate. Even if the
    Agency could get away with such a truncated process, which I
    submit it cannot, it is simply not good public policy to ignore
    the enormous costs of OSHA regulations.
        For example, by OSHA's own admission, the ergonomics
    regulation rejected by Congress under the Congressional Review
    Act would have cost American industry billions--that is
    billions--of dollars and made it the most expensive regulation
    in Department of Labor history and, some would suggest, in the
    history of the Republic.
        In the context of a global economy and the outsourcing of
    American jobs, good public policy demands an appropriate
    balance between a standard-setting process that keeps up with
    workplace hazards and one that does not jeopardize the very
    existence of those workplaces.
        Fourth, OSHA's regulatory actions are subject to the
    requirements of the Administrative Procedures Act. Since 1946,
    the APA and appellate review have been this Nation's insurance
    policy against arbitrary and capricious agency action.
        And as this Congress well knows, it provides for notice and
    comment. It insists that all parties, not only those parties
    that are directly affected--and we were all moved by Mr.
    Peoples' statement--by substances themselves but also those
    parties that will be regulated by the very OSHA standards
    themselves.
        We would submit that in a democracy this transparency, this
    notice and comment process, is more fundamental than any
    individual OSHA standard itself.
        Fifth, and perhaps most importantly, the question before
    this committee frames the fundamental issue of OSHA priorities.
    What are the workplace hazards du jour, and should they
    galvanize OSHA's immediate attention? Can or should OSHA's
    priorities be micro-managed outside the Agency?
        And in this regard, I think the ergonomics regulatory
    process is particularly instructive. It is a classic example of
    the doctrine of unintended consequences. The massive amounts of
    time and resources applied over 10 years to the ergonomics
    regulation clearly delayed and prevented the promulgation of
    other OSHA standards that would have been responsive to
    workplace hazards.
        I welcome the opportunity to address these important
    questions as to the pace of OSHA standard setting. I
    respectfully submit that while the process appears glacial and
    cumbersome, it strikes an appropriate balance among the complex
    scientific, economic and public policy considerations.
        I have submitted for the record a complete version of my
    comments, and I look forward to your questions.
        [The statement of Mr. Fellner follows:]

     Prepared Statement of Baruch A. Fellner, Gibson, Dunn & Crutcher, LLP

    Summary of Testimony
        This testimony will concentrate on the legal and public-policy
    constraints that prevent immediate promulgation of occupational safety
    and health standards. Among those constraints are requirements for
    notice and comment as well as court review of OSHA standards; the
    complexities of science and statistics on which such standards are
    based; the OSH Act statutory framework requiring findings of
    significant risk and feasibility to support OSHA standards; the
    staggering costs of such regulations; and the practical impact on
    available resources of competing regulatory priorities.
        Chairman Woolsey, Members of the Workforce Protections
    Subcommittee, my name is Baruch Fellner, an attorney with the law firm
    of Gibson, Dunn & Crutcher, LLP. I very much appreciate your invitation
    to participate in this important hearing dealing with the question
    ``Have OSHA standards kept up with workplace hazards?'' I appear this
    afternoon in my personal capacity as a citizen and not on behalf of any
    clients. Indeed, since OSHA's birth over 35 years ago, I have worked
    both sides, having shaped OSHA's enforcement policies and priorities
    during its first decade and questioned them thereafter. I therefore
    hope to bring a broad substantive and historical perspective to this
    Committee's deliberations.
        To that end, I will reject the temptation of answering the question
    posed at today's hearing with a resounding ``yes''--that OSHA has moved
    with all deliberate speed in responding to workplace hazards. That
    simple response is supported by the fact that American workplaces have
    become demonstrably safer as evidenced by the steady decline of
    recorded workplace injuries, illnesses and fatalities--all while the
    economy has grown and jobs have increased at enormous rates over the
    past 35 years. Notwithstanding the pace of regulations, OSHA must be
    doing something right.
        Instead of such a facile response, however, allow me to draw upon
    my experiences as a government attorney trying to get standards
    promulgated and then defending them, as well as a management attorney
    challenging such standards and finally as one who facilitates the
    settlement of such standards challenges in a manner that promotes the
    interests of all parties. For example, I represented the electroplating
    industry in its challenge to OSHA's most recent hexavalent chromium
    standard. We resolved our challenge to OSHA's standard in a settlement
    signed by the industry, OSHA, Public Citizen and the United
    Steelworkers. This agreement was recognized as a win for all parties
    and the vindication of a process that functioned properly to protect
    American workers.
        Despite some evidence that the OSHA regulatory process is working,
    I would be the first to acknowledge that like any other agency dealing
    with complex scientific, technological and economic issues, OSHA's task
    is enormously difficult and time consuming. And, I would respectfully
    submit, with good reason.
        First, the OSHA statute, as interpreted by decades of case law,
    requires the agency to make detailed findings of significant risk of
    material impairment of employee health before it can pursue regulation
    of a workplace hazard. See, e.g., Indus. Union Dep't, AFL-CIO v. Am.
    Petroleum Inst. (``Benzene''), 448 U.S. 607, 639 (1980) (holding that
    Secretary can regulate only if a ``significant risk of a material
    health impairment'' exists (emphases added)). In addition, OSHA must
    gather credible evidence with respect to the technological and economic
    feasibility of its regulations, and it must do so industry by industry.
    United Steelworkers v. Marshall, 647 F2d 1189 (D.C. Cir. 1980).
    Finally, it must perform what amounts to a cost benefit analysis. These
    are not simple tasks and to do them in a cursory fashion is to invite
    court rejection of OSHA standards.
        Second, OSHA's regulations are on the frontier of science. They
    rely on a variety of retrospective, cross-sectional, prospective and
    randomized controlled trial studies. Epidemiological and biostatistical
    analyses do not make OSHA's job any easier. And often, intuition and
    anecdote that fuel public policy clash with evidence-based medicine.
    Therefore, in the context of such cutting edge science, OSHA's task of
    establishing permissible exposure limits is indeed a daunting one. See
    Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000). (``In
    the face of conflicting evidence at the frontiers of science, courts'
    deference to expert determinations should be at its greatest'').
        Third, nor can OSHA simply cut through all this complexity and
    recognize a few studies that seem to point in the direction of the most
    protective standard it can promulgate. Even if the agency could get
    away with such a truncated process, which it cannot as I will discuss
    in a moment, it is simply not good public policy to ignore the enormous
    costs of OSHA regulations. For example, by OSHA's own admission, the
    ergonomics regulation, rejected by Congress under the Congressional
    Review Act, would have cost American industry billions of dollars and
    made it the most expensive regulation in Department of Labor history,
    and some would suggest in the history of our Republic. In the context
    of a global economy and the outsourcing of American jobs, good public
    policy demands an appropriate balance between a standard setting
    process that keeps up with workplace hazards and one that does not
    jeopardize the existence of those workplaces.
        Fourth, OSHA's regulatory actions are subject to the requirements
    of the Administrative Procedures Act (``APA''). 5 U.S.C. Sec.  5 et
    seq. Since 1946, the APA and appellate review have been this nation's
    insurance policy against arbitrary and capricious agency action. The
    APA was passed during a period of expanding power for the federal
    government--and was the result of decades of careful deliberation on
    how to best provide Constitutional safeguards to govern agency action.
    The APA requires transparency in government through notice to
    stakeholders of proposed rulemaking, the opportunity for comment and
    informal hearings, the promulgation of final rules that deal with
    stakeholder concerns and the opportunity for appellate review. These
    activities take time, but in our democracy it is essential that all
    voices are heard and considered--particularly those that will be
    subjected to regulation--before difficult and controversial regulations
    are promulgated. That is the objective of the APA as reinforced by
    Section 6(b) of the OSH Act. That objective is more fundamental than
    any individual OSHA standard.
        Fifth, and perhaps most importantly, the question before this
    Committee frames the fundamental issue of OSHA priorities: what are the
    workplace hazards du jour and should they galvanize OSHA's immediate
    attention? Can or should OSHA's priorities be micromanaged from outside
    the agency? In this regard, the ergonomics regulatory process is
    instructive. It is a classic example of the doctrine of unintended
    consequences. The massive amount of time and resources applied to the
    ergonomics regulation clearly delayed and prevented the promulgation of
    other OSHA standards that would have been responsive to workplace
    hazards.
        Finally, the question of OSHA regulatory priorities is only part of
    a broader set of OSHA issues. What remains are more challenging,
    complex, and subtle issues about how to improve workplace safety--and
    let us be clear, this is the cause which unifies us all--not the
    question of how many standards OSHA has issued, or even whether all
    employers comply with these standards. Some of those questions to which
    I would invite this Committee's attention are:
         How best to get small businesses which rarely if ever have
    dedicated safety personnel to focus on safety in their workplaces, and
    assist them in navigating the complex minefield that OSHA's regulations
    have become.
         How should exposure levels be updated that seek control
    measures that would quickly over-burden employers and exacerbate the
    trend towards exporting jobs.
         Given that there will never be an OSHA inspector in every
    workplace, what is the best model to achieve employer compliance with
    OSHA regulations and good workplace safety practices?
         Is OSHA getting its ``bang for its enforcement buck'' by
    directing its inspectors to workplaces with the deadliest and most
    serious workplace hazards subject to regulations that are already on
    the books?
        I welcome this opportunity to address the important question of the
    pace of OSHA standard setting. I respectfully submit that while the
    process appears glacial and cumbersome, it strikes an appropriate
    balance among the complex scientific, economic and public policy
    considerations. I look forward to your further questions.
        Without regard to formal administrative requirements, OSHA may
    enact an emergency temporary standard to take immediate effect upon
    publication in the Federal Register if it is determined that (a)
    employees are exposed to grave danger from exposure to substances or
    agents determined to be toxic or physically harmful or from new
    hazards, and (b) that such emergency standard is necessary to protect
    employees from such danger. See 29 U.S.C. Sec.  655(6)(c )(1). This is
    a drastic measure intended only for the most dire and pressing of
    circumstances. See, e.g., Public Citizen Health Research Group v.
    Auchter, 702 F.2d 1150, 1155 (D.C. Cir. 1983) (noting that the power to
    enact emergency standards is ``extraordinary,'' and ``to be used only
    in limited situations * * * [in] response to exceptional
    circumstances.'') (internal quotations and citations omitted).
                                     ______

        Chairwoman Woolsey. Thank you, Mr. Fellner.
        Mr. Mirer?

       STATEMENT OF FRANK MIRER, PROFESSOR OF ENVIRONMENTAL AND
      OCCUPATIONAL HEALTH SCIENCES, HUNTER SCHOOL OF URBAN PUBLIC
                                 HEALTH

        Mr. Mirer. I am Frank Mirer, now professor of environmental
    and occupational health at Hunter College of the City
    University of New York.
        Previously, I spent 30 years in the trenches of OSHA
    standard setting, some with Mr. Fellner on the other side of
    the table. I was among the parties convened by the late
    Representative Norwood to talk about updating the PELs. And I,
    too, have negotiated settlements in post-standards litigation.
        My academic project now is analyzing the regulatory process
    so that policy makers and Congress can implement standard
    setting and change the process based on sound science and
    objective data.
        My key points today are that, first, new, updated 21st-
    century OSHA standards are necessary to protect workers, to
    keep from repeating the story that Mr. Peoples has told over
    again.
        OSHA standard setting has ground to a halt in the current
    administration. For chemical exposures, there are many examples
    of OSHA standards which allow exposures so high that workers
    get sick, and many chemicals that aren't regulated at all.
        It is true that many obstacles to new OSHA standards have
    been imposed by executive orders, Congress and the courts, but
    the fact is OSHA has the scientific backing and the resources
    to set many new standards if the staff were allowed to go
    forward with the process.
        Now, it is clear that OSHA since 2001 has checked out of
    the standards business. Slow progress has ground to a halt. The
    personal protective equipment standard, which Mr. Foulke
    mentioned--the date was announced settling a lawsuit.
        More than a year ago, a group of unions petitioned OSHA
    seeking an emergency standard to protect health care workers
    from pandemic flu and also other respiratory disease. This is
    essential to public health protection. It was denied.
        A union petition to expand process safety management
    standard to workplaces with reactive chemicals that could
    explode was denied. A union petition for a standard on diacetyl
    is lying fallow.
        The administration removed about two dozen items from the
    longstanding regulatory agenda, including metal working fluids
    that I will talk about later if there is time.
        The standards reported by Mr. Foulke--some of them were
    takeaways, like the rules for respirators.
        And most importantly, one of those changes was a change in
    the rules for recording workplace injuries which permits
    employers not to report and record injuries that they
    previously had to and is directly responsible for at least
    some, if not all, of the reduction in injury rates reported by
    Mr. Foulke and Mr. Fellner.
        In fact, some of the other reductions were the
    implementation of the elements of the ergonomic standard that
    also caused that reduction.
        Now, let me bring you something new. That is all old stuff.
    I am now teaching graduate students in industrial hygiene.
        In my toxicology class, first we look at scientific data on
    health effects. Then we talk about exposure limits. And my
    students ask me why California limits occupational exposure to
    carbon monoxide--carbon monoxide, one of the oldest chemicals
    that we know about--to half of what OSHA allows, why a dry
    cleaning chemical, perchloroethylene, is limited to a quarter
    of what OSHA allows, or why a certain solvent found in inks
    California limits to one-fortieth of what OSHA allows.
        One of these is a carcinogen. One causes reproductive
    abnormalities. Each of these was on OSHA's list for rulemaking.
    Each was removed by the administration.
        In my longer testimony, I describe an experience at a
    machining plant in Ohio where workers suffered as bad similar
    adverse effects, respiratory effects.
        In my testimony, we describe how an OSHA inspection in the
    middle of this outbreak found no problems because the plant was
    in compliance with the OSHA standard.
        Our petition for a new standard was denied. Our court suit
    to try and get the standard moving again was unsuccessful. And
    so workers remain at risk for this.
        I think what we need most importantly and most quickly from
    this committee is, at least for the meager remnants on OSHA's
    regulatory agenda, that the Congress get these things moving
    forward and, in particular, get the silica standard moving
    forward again. It has been too long. It causes illnesses just
    like you have heard about today.
        Thank you very much.
        [The statement of Mr. Mirer follows:]

         Prepared Statement of Franklin E. Mirer, PhD, CIH, Professor,
      Environmental and Occupational Health Sciences, Urban Public Health
     Program, Hunter College School of Health Sciences, City University of
                                    New York

        My name is Frank Mirer. I am Professor of Environmental and
    Occupational Health at Hunter College of the City University of New
    York. Previously, I served as Director of the Health and Safety
    Department of the United Automobile, Aerospace, and Agricultural
    Implement Workers of American (UAW), International Union. I thank you
    for the opportunity to testify just before Workers Memorial Day, the
    time we specially focus on protecting workers. My testimony will focus
    on the need for OSHA to promulgate new safety and health standards for
    a host of chemicals and other hazards.
        I've had more than 30 years experience in the OSHA standards
    process. I first testified before OSHA on the standard for lead on May
    13, 1977. Since then, the UAW took the lead on successfully pushing
    OSHA to set three key standards, and participated in more than a dozen
    other processes leading to OSHA rules. I also participated in the UAW's
    so far incomplete battle for a standard for metalworking fluids.
        My academic project is analyzing the regulatory process, so that
    policy makers can both implement standard setting and change the
    process based on sound science and objective data.
        The key points of my presentation today are:
        1. OSHA standards are necessary to protect workers.
        2. OSHA standard setting has ground to a halt in the current
    Administration.
        3. For chemical exposures, there are many examples of OSHA
    standards which allow exposures so high that workers to get sick.
        4. Many obstacles to new OSHA standards have been imposed by
    Executive Orders, the Congress and the Courts.
        5. Despite this, OSHA has the scientific backing and resources to
    set these new standards, if the staff were allowed to set standards.
        My recent review, and long experience, show that OSHA, since 2001,
    has checked out of the standards business. Slow progress in earlier
    years has ground to a halt and may even be moving stealthily backward.
    OSHA has staff and other resources to set standards, but that staff has
    not been permitted to operate. Since 2001, this Administration set one
    new chemical standard, for carcinogenic chromium, under court order.
    That standard actually permits employers to increase exposure levels
    under some circumstances. Unions were forced to sue to get
    improvements, and that litigation still pends. Regarding employers'
    responsibility to pay for required protective equipment like
    respirators and wire mesh gloves, Labor Secretary Elaine Chao finally
    committed to issuing a final rule in response to a union lawsuit and a
    court ordered deadline. That rule was promised by November 2007. The
    rulemaking record was completed in 1999.
        More than a year ago, a group of unions petitioned OSHA seeking the
    emergency standard to protect health care workers, first responders and
    others whose jobs might put them at risk during a flu pandemic. The
    Administration denied that petition. This places the entire country at
    greater risk of retransmission of respiratory disease through the
    health care system.
        A union petition to expand the Process Safety Management standard
    to workplaces with reactive chemicals that could explode or burn has
    been ignored. This expansion would be important to the communities near
    dangerous facilities exempt from the standard.
        A union petition to protect food processing workers against the
    deadly vapors of an artificial flavor ingredient, diacetyl, has
    likewise been denied. These vapors cause a devastating and potentially
    fatal lung disease among workers making microwave popcorn, and may pose
    a hazard to workers and consumers down stream.
        This Administration removed about two dozen items from a long
    standing regulatory agenda, including protection of health care workers
    against TB, and several very important chemical exposure limits,
    including metalworking fluids. Many of the initiatives left behind,
    like some rules for respirators, and recording workplace injuries, were
    takaways.
        When the UAW sued OSHA for removing metalworking fluids from the
    regulatory agenda in 2001, in the face of continuing outbreaks of
    severe and disabling respiratory disease, the Administration defended
    the case saying resources were needed to set rules for silica and
    beryllium. But silica and beryllium are still hanging from then to now
    in the pre-rule stage, without even a date when a notice of a proposed
    rulemaking or a proposed standard might be issued.
        Apologists for this record cite the new obstacles to standards
    which have been erected since 1970. I agree, it's time to reduce those
    obstacles. But the obstacles don't fully explain the near complete
    halt. The first barrier to setting a new standard is getting the Labor
    Department to recognize that something needs to be done about a hazard.
    That's a political leadership decision. Once there's a decision to move
    forward, the task that causes the most delay is gathering business data
    to estimate costs. But, OSHA staff has figured out how to get that cost
    information. After that, the barriers, and sources of delay, are
    getting approval from the Office of Management and Budget to put a
    standard on the agenda, complete the small business (SBREFA) review to
    release a proposed standard, and to finally promulgate the final
    standard. But, OMB is not a free agent. The same President who
    appointed the Secretary of Labor and Assistant Secretary of Labor for
    OSHA also appointed the heads of OMB and the Small Business
    Administration.
        For all that, OSHA has the resources to start and eventually bring
    to conclusion several meaningful standards each year. It may be a few
    years from starting down the pipeline to finishing, but OSHA has proven
    it can sustain its burden of proof in court when it tries to protect
    workers' health. It's time to hold the Administration accountable for
    its record. Not only has little or nothing been finished, but the
    pipeline is empty for any future President.
        Chemical exposure limits are very important, and I want to address
    these at some length.
        My students are graduate students in industrial hygiene. In my
    toxicology class, first we look at scientific data about health
    effects, then we talk about exposure limits. My students ask me why
    California limits occupational exposure to carbon monoxide to half what
    OSHA allows, or why a dry cleaning chemical (perchloroethylene)
    exposure in California is limited to \1/4\ of what OSHA allows, or why
    OSHA allows 40 times more exposure to a solvent (ethoxyethanol)
    sometimes found in inks. The dry cleaning chemical is a possible
    carcinogen, the ink solvent is a reproductive toxin. Health science
    supports the stricter limits, and implementation in California proves
    their practicality. Each of these substances was on OSHA's list for
    rulemaking, and each was removed by the Administration.
        My professional organization, the American Industrial Hygiene
    Association, polled its members for the leading OSHA issue, the leading
    Legislative Issue and the leading professional issue for 2007-8. The
    answer in each category was the same: PEL's.
        Chronic illness arising from long term chemical exposures at work
    accounts for the large majority of known work-related mortality. Few of
    these victims are named on Workers Memorial Day, and many are not aware
    of the chemical cause of their illness. Reducing those known dangerous
    exposures is therefore the best opportunity to protect the lives and
    health of American workers. Recognizing the dangers of chemicals at
    work also would facilitate controlling those chemicals at home and in
    the community environment.
        When OSHA was established in 1970, it inherited hundreds chemical
    exposure limits, based on the science of the '60s and before. Those
    limits were set with substantial involvement of chemical industry
    scientists through the American Conference of Governmental Industrial
    Hygienists (ACGIH). Those limits were not intended to be as protective
    as rules mandated by the OSHA law. Nevertheless, these Threshold Limit
    Values were a starting line for limiting chemical exposures.
        In the more than three decades of OSHA's existence, the agency has
    issued new permissible exposure limits for only 16 agents or groups of
    agents. Eight of these were set in the '70s, 3 in the '80's, 4 in the
    '90's, and only 1 in the 21st century Most of these rules were
    triggered by union or public interest petitions, and defended in court
    by these same groups. These rules radically reduced permissible
    exposures from the 1968 levels, protected workers, transformed
    industries, and largely avoided inflated high costs projected by
    industry doomsayers. Those costs which were actually incurred included
    wages of workers fabricating and maintaining control equipment, and
    cleaning the workplace, so these rules likely created jobs.
        My conclusions, based on detailed review of scientific and
    regulatory history of the standards set and standards not set, are that
    OSHA could have, and should have issued rules for dozens of additional
    chemicals. I want to emphasize that OSHA staff could have met the legal
    tests for proof, and the procedural requirements of setting standards,
    with the resources now provided.
        Yes, industry litigants have persuaded judges to increase OSHA's
    burden of proof to set a standard. Yes, regulatory legislation has
    imposed additional steps, delays and economic tests which stretch out
    the process by years. Yes, the Office of Management and Budget has been
    empowered by executive orders to slow the standard setting process and
    challenge OSHA's expert scientific and engineering conclusions. For all
    of that, OSHA has the resources and scientific and engineering support
    to start several standards each year, and to bring these rulemakings to
    successful conclusion within four years. That is, if the OSHA staff are
    permitted to do their work.
        The effects of OSHA failing to set new exposure limits can
    sometimes be seen in victims we can name. Here's a real story,
    documented in the scientific literature and the popular press.
        In November 2000, Dave Patterson, a machine operator at a brake
    systems plant in Mt. Vernon, Ohio, initially reported breathing
    difficulties to his physician. In January 2001, machinist J.J. Johnson
    and set-up man John Gooch were hospitalized with hypersensitivity
    pneumonitis (HP), a serious disease that can lead to respiratory
    failure. Subsequently, additional HP cases developed as well as cases
    of bronchitis and occupational asthma (OA).
        On February 5, 2001, an OSHA inspector responded to a complaint
    from one of the victims. The inspector issued no citation for MWF
    exposure because they found management in compliance. OSHA gave
    management a clean bill of health for metalworking fluids.
        Workers continued to get sick. In June 2001, a National Institute
    for Occupational Safety and Health (NIOSH) Health Hazard Evaluation was
    called in by management and UAW Local 1939. By November 2001, 107
    workers (out of 400) had been placed on restriction and 37 remained on
    medical leave. NIOSH identified 14 with occupational asthma, 12 with
    hypersensitivity pneumonitis, three with occupational bronchitis.
        The UAW worked closely with TRW and NIOSH to protect our members.
    Ventilation was improved to bring exposure into compliance with UAW and
    NIOSH recommended limits. Eleven months after the first case, new cases
    stopped appearing, but some victims were still unable to return to
    work. Recent reports from our members and the press show that previous
    victims still suffer.
        This was one of at least a dozen ``outbreaks'' of illness and
    disability from HP in machining plants which are in compliance with
    OSHA's exposure limits. These outbreaks were and are epidemics of acute
    severe illness on top of the endemic risks of asthma, other respiratory
    conditions, and most likely cancer.
        Well before OSHA's 2001 inaction in Ohio, the problem was known to
    OSHA and to the industry. In 1993, the UAW petitioned OSHA for an
    emergency temporary standard for metalworking fluids based on research
    largely conducted jointly in the auto industry. OSHA denied that
    petition, but did convene an industry-labor-public health standards
    advisory committee. The automobile industry responded in 1995 and 1997
    by convening symposia on the health effects and control measures for
    exposure to metalworking fluids. Both concluded that the effects were
    real and controls were feasible. The UAW negotiated exposure limits
    lower than OSHA with the auto industry employers, as well as other
    control measures. The year 1997 also saw the crafting of an American
    National Standards Institute (ANSI) standard on mist control for
    machine tools and a workshop was held to identify the cause and
    prevention of hypersensitivity pneumonitis. The following year (1998)
    NIOSH completed a ``Criteria Document'' on metal working fluids (a
    proposal to OSHA for a standard), concurring with the UAW recommended
    limit. The OSHA Standards Advisory Committee voted 11-4 that OSHA issue
    a comprehensive standard to drastically reduce the mist levels to which
    workers are exposed and to enact strict requirements for fluid
    management. OSHA responded to the SAC report by issuing voluntary
    guidelines, but left the new standard on the regulatory agenda.
        So where was OSHA during the TRW outbreak in the year 2000? As
    workers were being hospitalized, an OSHA inspector was giving a ``clean
    bill of health'' to the plant, based on a 30+ year old standard that
    would allow a typical worker to inhale 1 pint of oil over the course of
    a working lifetime. And then, in October, 2001, OSHA deleted
    Metalworking Fluids (MWF) from the regulatory agenda, withdrawing the
    advanced notice of proposed rulemaking. OSHA acknowledged the
    respiratory illness from MWF exposure at prevailing and permitted
    exposure levels, but stated that asthma and hypersensitivity
    pneumonitis were ``rarely fatal.'' The UAW petitioned the 3rd Circuit
    Court of Appeals to compel OSHA to restart the rulemaking. On March 24,
    2004, that Court deferred to OSHA's decision NOT to act or start
    setting a standard.
        Since 1970, scientific evidence and practical experience has
    identified workplace chemical causes of many instances of illness,
    disability and death among workers. Technical methods for estimating
    quantitative risks at various exposure levels--methods demanded by
    industry--demonstrate very large risks at very low exposures. Multiple
    studies have shown that widely distributed chemicals, like silica, are
    now known to cause cancer in humans. Lung cancer has been observed
    among workers exposed to silica at levels permitted by the current OSHA
    standard and prevailing in American workplaces and at American
    construction sites.
        Organic dusts, like flour, are known to cause occupational asthma
    at exposure levels prevailing in American workplaces. A predictable
    fraction of asthma victims will die of that illness.
        The most visible recent demonstration of the impact of OSHA's
    failure to move forward on new exposure standards was at the World
    Trade Center recovery site. The scientific literature and popular press
    recount the ongoing toll of disability and even death among recovery
    workers. Those accounts fail to connect the dots, that OSHA, and EPA,
    correctly reported that none of the measured exposures at the site
    violated outdated OSHA standards. OSHA and EPA may have measured the
    wrong chemicals at the wrong time, and have not taken mixtures into
    account, or special circumstances. Nonetheless, following OSHA
    standards allowed workers in large numbers to get sick, nobody disputes
    that anymore.
        The stories of Popcorn Workers Lung, and respiratory illness from
    metalworking fluids, include the same plot elements: devastating
    illness from exposure levels permitted by OSHA or not limited at all,
    no action or ineffective action from OSHA.
        The standards process, when allowed to proceed according to law,
    drastically reduces permissible and actual exposures. The OSHA asbestos
    permissible exposure limit, revised several times, was cut to 1% of
    what it was in 1970, and even this limit leaves behind a substantial
    cancer risk. We still pay for the legacy of those old, high exposures.
    In the accompanying table, we see that OSHA's new rules have reduced
    allowable exposure by up to 1000-fold.
        Unfortunately, the chemical hazard standards process nearly ground
    to a halt in the last decade. The most recent rule protecting against
    cancer-causing chrome compounds was issued last year only after a court
    order to regulate, and a court decreed time limit to get it done. The
    mandated reduction is not sufficient, but it's something. The standard
    promulgated before chrome compounds, the methylene chloride standard,
    began with a UAW petition, and ended by settling a UAW lawsuit.
    Allowable exposure was reduced to 5% of what was previously allowed.
        Without a doubt, these delays in the standard setting process have
    been aggravated by congressionally imposed special reviews by ``small''
    business employers [but not employees of small business], OMB imposed
    regulatory reviews, and increasing demands for detailed economic
    analyses. These have injected procedural Botox (botulinum toxin which
    paralyzes all muscles) into an agency already paralyzed by analysis.
    But the delays are also attributable to the failure of the OSHA
    political leadership and the Administration to support prompt action in
    promulgating additional standards.
        The legislative fix to this impasse has at least three parts.
        First, Congress has to hold the Administration's feet to the fire
    on the meager current regulatory calendar. In particular, OSHA must be
    directed to issue a proposed silica standard, hold hearings, and issue
    a final standard, each by a date certain.
        Second, courts have severely limited the circumstances where OSHA
    can be compelled to move forward in standard setting. Meanwhile,
    management can sue OSHA whenever OSHA does make a new rule. OSHA should
    be required to meet a high threshold to defend refusing a petition for
    a new standard. The playing field should be leveled.
        Third, Congress should authorize OSHA to adopt the current
    Threshold Limit Values (TLV) list on a one time only basis. TLVs are
    developed by ACGIH, a group of occupational health practitioners
    charged with investigating, recommending, and annually reviewing
    exposure limits for chemical substances. Generally, the TLV's do not
    limit exposure as much as permissible exposure limits set according to
    the OSHA law. Often the values allow a significant risk of material
    impairment to health, and don't push as far as would be economically
    feasible for the industry. In part, these shortcomings in protection
    arise from the nature of the ACGIH and its TLV committee, a set of
    volunteer organizations, with limited resources. ACGIH is not able to
    hold months of hearings, or hire specialized experts as OSHA might. But
    given OSHA's lack of action on setting new standards, the TLV's are a
    reasonable starting point in getting protection and future rulemaking.
    Congress should direct this action. Where there is substantial
    objection to the limit for a particular agent, and a showing of
    material problems with compliance with that limit, OSHA should be
    compelled to place that agent in line for complete 6(b) rulemaking on a
    clear timetable.
        In conclusion:
        1. OSHA standards are necessary to protect workers.
        2. OSHA standard setting has ground to a halt in the current
    Administration.
        3. For chemical exposures, there are many examples of OSHA
    standards which allow workers to get sick.
        4. Many obstacles to new OSHA standards have been imposed by
    Executive Orders, the Congress and the Courts.
        5. OSHA has the scientific backing and resources to set these new
    standards, if the staff were allowed to start the process.

                                     ______

        Chairwoman Woolsey. Thank you.
        I think you heard the bells ringing. We have five votes,
    but we do have 5 minutes.
        I am going to be here for the duration, so if there is
    anybody on the subcommittee that can't come back that would
    like to ask a question and use that 5 minutes, I am willing to
    yield.
        Mr. Payne from New Jersey?
        Mr. Payne. Thank you very much.
        Let me just quickly ask a question to perhaps Mr. Foulke.
        I have noticed a disturbing trend toward replacing
    standards with this voluntary alliance, mostly among industry
    members, instead of using OSHA standards. For example, instead
    of modifying the process safety management standard to include
    reactive hazards as the Chemical Safety Board recommended in
    2002, OSHA established an alliance which was concluded last
    month.
        The reactives issue is serious, having killed well over 100
    workers in preventable explosions over the last couple of
    decades. In 2004, the Chemical Safety Board declared OSHA's
    response to be unacceptable.
        So, Mr. Foulke, can you tell me what the reactives alliance
    accomplished aside from training a few dozen people and
    staffing booths at numerous conferences? What was the actual
    accomplishment of this alliance?
        Mr. Foulke. The point of our alliance program is to tell
    industries and other organizations, such as labor
    organizations--to help them identify the safety and health
    hazards that directly impact on their particular industry and
    their particular workers.
        And if you look at the alliances that we have worked with,
    a lot of them have been very successful in helping to produce
    guidance documents, best practices.
        And I am not exactly sure with respect to this particular
    alliance--I know that the process safety management standard
    covered many of the recommendations that dealt with the
    reactive chemicals.
        But what we were trying to do with--what we try to do with
    each one of our alliances is to outreach and to determine what
    are the most critical safety and health hazards that are facing
    that particular industry or that particular union's membership
    and then to address those by providing the best practices and
    guidelines and training----
        Mr. Payne. All right. Let me just--because time is running,
    I am going got cut you off. But do you have any evidence that
    you think that it is more effective with the alliance than it
    would have been under OSHA? I mean, do you accomplish more
    safety, workers are in better shape?
        Maybe a yes or no.
        Mr. Foulke. My answer would be yes. I think our alliance
    programs----
        Mr. Payne. Okay. All right.
        Mr. Foulke [continuing]. Are very effective.
        Mr. Payne. Then let me ask you another question, then. If
    that is yes, do you mean by less regulations no real--and
    actually, you concluded this. I mean, this particular alliance
    is over, so therefore I assume, then, that the problem is
    solved.
        Mr. Foulke. Well, what we did was we--in the particular
    alliances, when they are instituted, we may have developed the
    appropriate best practices--whatever we were focused in on, we
    would try to address those particular hazards.
        The nice thing about the alliance program is that OSHA is
    able to outreach to so many more employers and thus cover so
    many more employees by quickly developing and working together
    to develop these guidance documents, these best practices,
    these training modules, all these different things that kind
    of--and that is why I said I think we have been very
    successful.
        And I think the fact that the numbers I suggested on injury
    and illness rates going down show that the four-prong approach
    that OSHA utilizes is being effective.
        Mr. Payne. Well, actually, I certainly disagree, and I
    think the word that you mentioned is ``nice.'' I think that
    what OSHA is trying to be is nice. But when people are losing
    their lives in different work, you don't have to be nice. You
    have to have protections for the worker.
        And I am not going to have time to ask, you know, Mr.
    Fellner a question, but I did take note that when he was saying
    that OSHA is moving with all deliberate speed, it reminded me
    of the 1954 Supreme Court decision that said that separate but
    equal is unconstitutional, that we should move with deliberate
    speed to integrate public schools in the United States. That
    was 50 years ago, and today public schools are more segregated
    than they were in 1954.
        So when I hear ``deliberate speed,'' I am glad that you
    reminded me of what I think is happening with OSHA.
        I have to yield back the balance of my time.
        Chairwoman Woolsey. Thank you.
        Now we have to go vote. And as soon as the fifth vote is
    finished, we will be back up here. It will be at least 20
    minutes.
        [Recess.]
        Chairwoman Woolsey. The hearing will come back to order.
        Thank you for waiting for us. This is what our day is like,
    so, you know, back and forth, back and forth.
        Mr. Bishop from New York will be the next to ask questions.
        Mr. Bishop. Thank you very much, Madam Chair, and thank you
    for holding this hearing. Thank you for indulging my schedule.
        And thank you to the witnesses for your testimony.
        Mr. Fellner, let me start with you. And I don't wish to be
    impolite, but I have to say I found your characterization of
    workplace hazards as the ``hazards du jour'' to be offensive.
        And I don't mean this to be a flippant question, but would
    you be so cavalier in your description if you yourself were
    suffering from a workplace injury or a loved one were suffering
    from a workplace injury or hazard that had not been attended to
    over, let's say, a 14-year or 15-year period?
        Mr. Fellner. Congressman Bishop, the reference to ``hazards
    du jour'' is directly responsive to the question as framed by
    this committee; namely, is standard setting responsive to
    workplace hazards?
        I submit to you with all respect, Congressman Bishop, that
    it cannot be responsive to workplace hazards in an orderly
    fashion when the issues that are gaining center stage are those
    that are in the press for 15 minutes or 30 minutes or the
    ``hazards du jour.''
        Mr. Bishop. All right.
        Mr. Fellner. There must be an orderly process.
        Mr. Bishop. If I may, can I infer from your answer that you
    would not place in that characterization ``hazards du jour''
    the types of hazards that we have heard described here today,
    such as the hazard of working in confined spaces, one that I
    understand from Mr. Schneider's testimony has now not been
    addressed fully for 14 years? Would that have a hazard of
    somewhat greater duration than 1 day?
        Mr. Fellner. The answer specifically with respect to the
    standard that you have raised, the confined space standard--
    there is a confined space regulation. It is enforced by OSHA.
    It is enforced effectively by OSHA. It is not a hazard to which
    OSHA has not responded. It has responded.
        There may be those----
        Mr. Bishop. If I may interrupt--I only have 5 minutes, so
    if I may interrupt.
        Mr. Fellner. I understand.
        There may be those who suggest that it hasn't been
    responded to adequately.
        Mr. Bishop. I would like to ask Mr. Schneider to address
    your characterization of how OSHA has responded to that hazard.
        Mr. Schneider. Well, unfortunately, that standard excludes
    the construction industry. And the construction industry has
    been working on a standard for confined spaces and has promised
    us one, but it hasn't been published yet. And 14 years later,
    construction workers are not afforded the same coverage, the
    same safety, as people that are not in construction.
        Mr. Bishop. I have one more question for you, Mr. Fellner.
    In your testimony, you suggest that good public policy demands
    an appropriate balance between a standard-setting process that
    keeps up with workplace hazards and one that does not
    jeopardize the existence of those workplaces, admittedly a
    difficult balance to arrive at and maintain.
        Where would you place on that continuum the problem with
    diacetyl? Am I pronouncing it correctly? Where would you place
    that? Are we maintaining the appropriate balance? Are we not
    acting quickly enough? Are we acting too precipitously?
        Mr. Fellner. To the best of my knowledge, Congressman
    Bishop, there is no dose response curve with respect to
    diacetyl.
        In the absence of a dose response curve on that particular
    substance, while there is some evidence of medical effects with
    respect to exposures to diacetyl at high levels, as the Supreme
    Court indicated in the benzene decision in 1980, that is
    insufficient to promulgate a standard at very, very low levels.
        So the issues are complex. And even, I dare say, the State
    of California is having difficulties with those issues.
        Mr. Bishop. Let me go to Mr. Foulke.
        Dr. Mirer, in his testimony, just asserts that OSHA
    standard setting has ground to a halt in the current
    administration. That is a characterization that is at odds with
    at least your written testimony. Would you comment, please, on
    Dr. Mirer's characterization?
        Mr. Foulke. Yes, Congressman Bishop. I would say that that
    characterization is incorrect. OSHA has been very involved in
    the standard making process. And just in 2006, 2007, we put out
    the hexavalent chromium standard. We have done an updated rule
    on fire protection in the shipyards.
        We have done assigned protection factors for the
    respiratory protection, which allows employers to know what is
    the proper respiratory cartridges that they should use in their
    respirators for the particular--and we have also done
    electrical installation requirements, a final rule on that.
        So we have been active just--and that has just been in 2006
    and beginning of 2007. So to say that we are just--you know,
    and I have a list of other things that we have done, final
    activities that we have done, since 2001. So to say that the
    Bush administration has been inactive in moving on standards is
    incorrect.
        Also, part of the whole standard-setting process, because
    of the different levels--and you have heard different people
    discuss the different things that have to be utilized as part
    of the standard-making process. Those things are ongoing, so we
    are working on putting out--we put out requests for information
    on emergency preparedness.
        I am trying to remember. We have done advance notice of
    proposed rulemaking where we asked the public for information.
    We conduct hearings. We put out notices of proposed rulemaking.
        So all these activities are ongoing. To say that we
    haven't--you can look at all these--there is a series of things
    that we have been doing since 2001. And so I would say there is
    no way you can classify that we have been at a standstill.
        Mr. Bishop. Thank you.
        May I ask Dr. Mirer to, sort of, substantiate why you have
    made the assertion that you have?
        Mr. Mirer. Okay. The chrome standard was promulgated
    pursuant to a court order that required them to produce it by a
    date certain. The assigned protection factors which Mr. Foulke
    talked about is a takeaway. It allows employers to use less
    protective respirators than they previously were required to
    do.
        The biggest takeaway was the change in record-keeping
    requirements which is responsible for at least part or maybe
    the majority of the reduction in injury rate that they are
    talking about as proof of their success.
        Most of the other things they have pointed to are nickel-
    and-dime, modest changes. I think there is actually three or
    four rulemakings on record-keeping that came in this
    administration, each one of which was a takeaway.
        Mr. Bishop. Thank you very much.
        My time is about to expire. Madam Chair, thank you.
        Chairwoman Woolsey. Thank you, Mr. Bishop.
        Ranking Member Wilson?
        I want you folks to know that we have gone two on this side
    because you weren't in your seats quite yet, so we are going to
    go Mr. Wilson and then to Mr. Kline. And you each get 6 minutes
    because, guess what, we forgot to turn on the clock.
        Mr. Wilson. Well, thank you, Madam Chairman, for your
    fairness.
        And indeed, Mr. Peoples, I want to thank you for being
    here. I want to thank you for your courage. I understand the
    seriousness of your condition. I was on the board of the
    American Lung Association in South Carolina for 20 years,
    working to reduce the potential for respiratory injuries. And
    so again, I appreciate so much your being here today.
        Additionally, I am really grateful to be here with
    Secretary Ed Foulke. Secretary Foulke and I worked together
    with the late Congressman, Governor Carroll Campbell of South
    Carolina. We know Secretary Foulke is one of the most prominent
    attorneys in South Carolina, one of the leading civic workers.
    In fact, Democrats and Republicans are very proud of the
    success of Secretary Foulke.
        And so, I appreciate your being here today.
        And in your testimony, Mr. Secretary, you indicated that
    the level of occupational injuries and illnesses was
    significantly reduced. In fact, the chart would indicate the
    lowest being recorded ever.
        But at the same time, there has been an indication that
    OSHA is broken. Can you respond? Because it appears from the
    actual reports of injuries and illnesses that, indeed, success
    is abundant.
        Mr. Foulke. Yes, Congressman Wilson. And thank you for
    those nice comments about me.
        No, as I indicated in my testimony, injury and illness
    rates since 2002 had fallen more than 13 percent. And more
    importantly, the overall fatality rate had dropped during that
    same time period by 7 percent, and 18 percent fatality rate
    reduction in Hispanics.
        And I would say that it is because of the balanced approach
    that we have taken. And the numbers we indicated showed that
    the amount of enforcement that we have been taking--the fact
    that one-quarter of the criminal referrals have occurred since
    2001 clearly indicates that we have a very strong enforcement.
        But it is also important--there is a lot of employers out
    there that we are trying to outreach to through our compliance
    assistance programs, our alliances, our partnerships, our
    voluntary protection program.
        All these programs were outreached into a greater and
    greater number of employers, and thus improving their health,
    and they are helping them to have a comprehensive safety and
    health program, at the same time allowing them to protect more
    and more workers throughout the country.
        So the statistics show that the balanced approach that we
    have taken has been extremely effective.
        Mr. Wilson. Well, I am very grateful for your success and
    that of OSHA.
        Mr. Fellner, we have heard testimony today stating concern
    about the regulatory process in which OSHA must formulate
    regulations. Can you explain how the process evolved to where
    it is currently? Was it due to perceived failing by regulators
    to take into account scientific data?
        Mr. Fellner. Congressman Wilson, that is precisely correct.
    The standard-setting process, as I indicated in my testimony,
    is extraordinarily complex, first because the statute makes it
    so.
        The statute talks about significant risk of material
    impairment. The seminal decision that dealt with significant
    risk of material impairment was the Benzene decision that
    issued in 1980.
        And with the committee's permission, there is a salient
    paragraph which I think will inform the committee's
    deliberation that I would like to share with you.
        In the Benzene decision, it says, ``By empowering the
    Secretary to promulgate standards that are reasonably necessary
    or appropriate to provide safe or healthful employment and
    places of employment, the act implies that before promulgating
    any standard the Secretary must make a finding that workplaces
    in question are not safe. But safe is not the equivalent of
    risk-free. There are many activities that we engage in every
    day, such as driving a car or even breathing city air, that
    entail some risk of accident or material health impairment.
    Nevertheless, few people would consider these activities
    unsafe. Similarly, a workplace can hardly be considered unsafe
    unless it threatens the workers with a significant risk of
    harm.''
        That decision was not written by Justice Rehnquist or
    Justice Scalia; it was written by Justice Stevens. And that is
    the guiding lodestar by which OSHA must promulgate its safety
    and health standards, not in a risk-free society but rather
    where there is significant risks.
        Since that decision, there have been multiple Court of
    Appeals decisions that have further made the process informed
    and complicated, particularly as our scientific environment
    becomes complicated.
        And all of that is under the umbrella of the Administrative
    Procedures Act, which requires notice and comment to all. And
    it requires it to Mr. Peoples, and it requires it also to the
    industries that are regulated.
        Chairwoman Woolsey. Thank you.
        Mr. Kline?
        Mr. Kline. Thank you, Madam Chair.
        And thank you to the witnesses for being here today. It is
    always fascinating to sit up here and listen to ourselves talk
    and realize how often we come down on different sides of an
    issue. I really would like to believe we are all trying to look
    for a way to be successful in reducing injury, illness and
    accident in the workplace. But, for example, the Chair opened
    with comments about the ergonomics regulations, and I would say
    I am extremely grateful that we were able to block those
    egregious ergonomics regulations. We just look at things
    differently.
        I am very much impressed, Secretary Foulke, by this chart
    that shows ever-decreasing injury, illness rates and lost work
    days per employee. And that seems to me what we should be
    looking for, is we should be looking at results.
        And so, one of the things that has been discussed are the
    so-called voluntary compliance issues, some of the things that
    OSHA has been using. I understood that to mean we are looking
    for ways to work with businesses, with employers, to make their
    workplace safer without having them be fearful of being slapped
    down, if you will, when OSHA comes.
        Can you talk about that a little bit and how that is
    working?
        Mr. Foulke. Yes. Well, I first would correct the
    terminology, because that ``voluntary compliance'' has been
    bandied about by some people as indicating that OSHA somehow
    allows employers to voluntarily comply with safety and health
    standards. And that is flat-out wrong; it is untrue.
        All the standards that are written are mandatory standards.
    All employers are required to abide by those standards. And
    OSHA enforces those standards, as I indicated earlier about the
    number of the 38,000-plus inspections that we have done. We are
    enforcing them.
        So what you are talking about, though, is compliance
    assistance. And that is where we have our different groups
    involving our outreach to employers and employees. This
    compliance assistance is not just solely for one group of the
    industry.
        In fact, we outreach them to our different programs. Part
    of the ones, as I talked earlier, was to Mr. Bishop regarding
    the alliance program, where we bring in--normally, it is
    involving associations, some type of groups, sometimes labor
    unions, where we try to outreach and focus and help those
    people identify their significant problems and safety and
    health issues and work with them to come up with compliance
    assistance tools that can help them.
        We also have what we call our consultation program, which
    is also part of our compliance assistance. The consultation is
    meant for small-and medium-size employers, where OSHA pays the
    states to have safety and health people come in and help small
    businesses develop comprehensive safety and health programs for
    their facilities, and thus helps them have a much more safe and
    healthy workplace for their employees.
        Mr. Kline. So this is not an OSHA inspection, per se. This
    is some assistance from your organization working with states
    to help businesses establish a safe working program. Is that
    correct?
        Mr. Foulke. That is correct. Under our consultation program
    and some of our compliance assistance programs like the
    voluntary protection program, we are trying to help the
    companies have comprehensive safety and health programs so that
    their worksites will be safer and healthier for their workers.
        Mr. Kline. Okay. Thank you very much.
        I would like to move--I see my light is still green. That
    happens so rarely. I am excited here. Thank you, Madam Chair.
        Personal protective equipment--we have had some testimony
    about that today. And there seems to be some confusion or
    difficulty.
        Can you tell us, Mr. Secretary, what actions the Department
    has taken with respect to PPE and historically what challenges
    you face in trying to regulate in this area? We had some
    testimony from Mr. Fellner and others, but can you kind of
    clear that up for us?
        Mr. Foulke. Yes, Congressman. We are in the process of
    finalizing a rule for personal protective equipment. That will
    be finalized in November of this year.
        Now, it is interesting to note that 95 percent of the--
    based on our analysis, we determined that currently 95 percent
    of the employers in the United States pay for their personal
    protective equipment.
        So we have been moving on this standard as expeditiously as
    we can. We have held hearings on it the initial proposal. When
    we finished the proposal, we determined that the record needed
    to be opened up to determine information on tools of the trade.
    So we have been working on those things on the payment for PPE
    rule.
        Now, we have already had in place, obviously, our personal
    protective equipment standards requiring employers to determine
    what hazards actually exist at their workplace and what
    personal protective equipment would be utilized to address that
    particular hazard.
        So those rules have been in place. The question has been,
    who pays for it? And as I indicated, currently our information
    shows that 95 percent of the employers currently pay for PPE.
    We are finalizing the standard, and that standard will be out
    in November of this year.
        Mr. Kline. All right. Thank you, Mr. Secretary.
        Thank you, Madam Chair.
        Chairwoman Woolsey. Well, I yield myself 5 minutes.
        I want to remind everybody who is here today that the title
    of the hearing is ``Have OSHA Standards Kept Up With Workplace
    Hazards?'', not ``Has Compliance Worked for the Old Standards
    That Aren't Even Close to What We Need in This World of Ours?''
        And then I would like to congratulate the subcommittee,
    because we have had some success. We had success before we even
    walked in here today. Today, OSHA put out a news release that
    announced that the National Emphasis Program will address
    popcorn lung. Well, guess what? We have been waiting how many
    years to get this even started, so we are glad that we have
    made an impact so far.
        But, Mr. Foulke, I have--oh, and I would like to, by the
    way, with unanimous consent, enter into the record this press
    release from OSHA. Okay.
        [The information follows:]

     U.S. Department of Labor's OSHA Announces Focus on Health Hazards of
            Microwave Popcorn Butter Flavorings Containing Diacetyl

        Washington.--The U.S. Department of Labor's Occupational Safety and
    Health Administration (OSHA) today announced that it is initiating a
    National Emphasis Program (NEP) to address the hazards and control
    measures associated with working in the microwave popcorn industry
    where butter flavorings containing diacetyl are used.
        ``We recognize that there are potential occupational health hazards
    associated with butter flavorings containing diacetyl,'' said Assistant
    Secretary of Labor for Occupational Safety and Health Edwin G. Foulke
    Jr. ``Under this program, OSHA will target inspection resources to
    those workplaces where we anticipate the highest employee exposures to
    these hazards.''
        The NEP applies to all workplaces where butter flavored microwave
    popcorn is being manufactured.
        In January, 2006, the National Institute for Occupational Safety
    and Health (NIOSH) released an investigative report on a microwave
    popcorn production facility. Several employees from this facility were
    diagnosed with bronchiolitis obliterans--a severe obstructive lung
    disease. Following a number of lung function tests and air sampling,
    NIOSH determined that inhalation exposure to butter flavoring chemicals
    is a risk for occupational lung disease. OSHA's National Emphasis
    Program will provide direction on inspection targeting and procedures,
    methods of controlling the hazard and compliance assistance.
        The 24 states and two U.S. territories that operate their own OSHA
    programs are encouraged, but not required, to adopt a similar emphasis
    program.
        Under the Occupational Safety and Health Act of 1970, employers are
    responsible for providing safe and healthful workplaces for their
    employees. OSHA's role is to assure the safety and health of America's
    working men and women by setting and enforcing standards; providing
    training, outreach and education; establishing partnerships; and
    encouraging continual process improvement in workplace safety and
    health. For more information, visit www.osha.gov.
                                     ______

        Chairwoman Woolsey. So, Mr. Foulke, I have some questions
    for you, because this press release that appears in this
    announcement only addresses popcorn facilities. Well, we know
    that cases of bronchiolitis obliterans have been identified in
    food processing and in flavor plants that produce flavoring for
    a variety of food products, including candies and many other
    foods. Diacetyl is used in popcorn, it is used in candies, it
    is used in dog food, it is used in cheeses, et cetera, et
    cetera.
        And this press release also--I will note that NIOSH issued
    an investigative report in January of 2006 implying that OSHA
    is acting somewhat rapidly. Well, actually, the first NIOSH
    report of problems in popcorn facilities was published on April
    26th, 2002, exactly 5 years ago.
        So, Mr. Foulke, here is my question: With this release only
    applying to microwave popcorn plants, and given that diacetyl
    is in widespread use in the flavoring and food processing
    industry, and given that there is no safe level of exposure,
    wouldn't it make sense to expand this program to anywhere that
    food flavoring chemicals are in use?
        In fact, isn't it true--this is going to be a two-part
    question--that none of the many cases found in California
    occurred in microwave popcorn plants?
        Mr. Foulke. Yes, Madam Chair, thank you.
        And I would note, first of all, actually, NIOSH had an
    interim report back in 2001 on this particular issue. And OSHA,
    at that particular time, took immediate action to alert all
    administrators of this report and to identify, as part of our
    inspection process, those facilities where these particular
    symptoms or illnesses may be occurring.
        We also developed and disseminated a brochure out of our
    Region 7 operations, which is where most of the popcorn
    manufacturers are located. And we also have been working on
    developing guidance.
        So I would first point out the fact that OSHA, as soon as
    they knew there was a problem back in 2001, we got on it and
    started working on it.
        Now, to answer your question with respect to diacetyl, I
    guess the question is, is diacetyl a hazard? And unfortunately,
    that is not an easy yes or no answer.
        We believe that there is strong evidence that butter
    flavoring and certain other food flavorings present respiratory
    hazards to the exposed employees. But as you probably are
    aware, because it is obvious you have done a lot of research on
    this, flavorings are complex mixtures made up of a lot of a
    numerous variety of substances.
        So, at this point in time, the question is--I don't believe
    that there has been--been found between any specific substance
    in flavoring--specific lung disease. Diacetyl is a substance of
    suspicion. Its role and the role of other flavoring compounds--
    --
        Chairwoman Woolsey. All right. I get your gist.
        Mr. Peoples, would you like to respond to that?
        Mr. Peoples. Being a blue-collar worker, as I was before my
    illness, I do speak, I believe, for the other blue-collar
    workers who, when we go to work, we truly believe that OSHA and
    NIOSH and the other government institutes have our best
    interests for our safety to work and support our families in
    mind.
        For this to be brought up to them and for nothing to be
    done for--we are going on to 6 years now since I have been sick
    myself--that I have a hard time understanding why.
        I do not understand the process. I have no knowledge of
    that whatsoever. But I still cannot figure out why it is taking
    so long for the proper testing, the proper regulations to be
    passed that companies have to abide by this. The allegiance,
    the voluntary allegiance, does not seem to be adequate enough.
        I would like to refer the committee to the paper ``Lung
    Disease Caused by Corporate Negligence,'' published in the
    International Journal of Occupational Health, which we will
    supply to the committee and should be part of this record. That
    shows that my disease was caused by an industry-wide cover-up.
        Chairwoman Woolsey. Without objection.
        [The information follows:]

        Mr. Peoples. I am sorry?
        Chairwoman Woolsey. Without objection to your entering it
    into the record.
        Mr. Peoples. Thank you.
        I hope that OSHA will not be allied with the industries
    like the flavoring industries.
        Chairwoman Woolsey. Thank you very much.
        Mr. Price?
        Mr. Price. Thank you, Madam Chair. I, too, thank you for
    holding this hearing, and I apologize for not being here
    earlier.
        I want to thank all of the panelists for coming and taking
    time and being tolerant of our schedule.
        I want to address a number of issues. First, the issue of
    butter flavoring.
        And last year, the Journal of Occupational and
    Environmental Medicine published a study entitled, ``Evaluation
    of Flavorings-Related Lung Disease Risk at Six Microwave
    Popcorn Plants.'' And I would like to submit that for inclusion
    in the record, Madam Chair.
        Chairwoman Woolsey. Without objection.
        [The information follows:]

        Mr. Price. Thank you.
        The study is interesting. In one point, it says that, ``At
    this time insufficient data exists on which to base workplace
    exposure standards or recommended exposure limits for butter
    flavoring.'' However, the study concludes that these workers
    are at risk for flavoring-related disease and recommends
    respiratory protection and engineering controls to protect
    workers.
        And I wonder, Mr. Foulke, if you might explain the special
    emphasis program with respect to the issue that was announced
    this morning, as the chair noted.
        Mr. Foulke. Yes. The National Emphasis Program that we will
    be implementing next month is an inspection program. It is part
    of our enforcement operation. We have a number of National
    Emphasis Programs.
        We also have Local Emphasis Programs on different subjects,
    on different topics. But this particular one is a National
    Emphasis Program involving butter flavors containing diacetyl
    in the popcorn industry--is our focus initially.
        And what we are going to be doing is conducting inspections
    of all the popcorn manufacturing facilities, butter popcorn
    manufacturing facilities, under federal jurisdiction, because
    we have state plan states that are not under our jurisdiction
    like California. So we are going to be conducting inspections
    of all those facilities by the end of 2007.
        And part of that inspection process will include reviewing
    the material safety data sheets to make sure that they have the
    proper information on there about that and other chemicals, to
    make sure that the hazard warnings are known to all those
    employees.
        Mr. Price. So there is a process in place, and you are
    moving through that.
        Mr. Foulke. Yes. I could say what we are going to be doing
    is we are going to be inspecting all the facilities before the
    end of the year.
        Mr. Price. Great. I appreciate that.
        I want to change gears just a little bit. In my real life,
    I was an orthopedic surgeon, so I have some familiarity with
    ergonomic situations and the challenges there.
        Mr. Fellner, we heard some testimony earlier that when the
    Department of Labor changed the recording of ergonomic injuries
    that this was the reason for the decrease in injury and illness
    rates. And I wondered if you might comment on that assertion.
        Mr. Fellner. Thank you, Congressman Price.
        Indeed, that assertion is mistaken--assertion made by my
    friend Frank Mirer.
        In point of fact, there was a column that was going to be
    added to the OSHA 300, the recordable injury form that OSHA
    requires employers to fill out. In its proposed standard, OSHA
    had suggested that there should be a separate column for
    musculoskeletal disorders.
        In response to comments by me, amongst others, OSHA
    concluded that they could not define musculoskeletal disorders.
    And consequently, they decided not to issue that as a final
    rule.
        However, what is very important to understand is that in so
    deciding, OSHA said however you employers used to define
    musculoskeletal disorders, continue to define it the same way,
    and continue to record it as you were recording it in the past.
        Any suggestion that there was a diminution of recording
    musculoskeletal disorders as a result of that instruction by
    OSHA to the regulated community is simply false.
        Mr. Mirer. Do I get to----
        Mr. Price. I appreciate that.
        Please, Dr. Mirer, yes.
        Mr. Mirer. Under the old rules, if an employee was
    treatment-free for 30 days, the recurrence of a musculoskeletal
    disorder or any other injury was a new occurrence and was
    recordable. Now, the employer does not have to record that, and
    most of these are recurrent illnesses.
        If medical treatment is denied to the employee, it used to
    be recordable. It is not recordable now. And those are the two
    main ways in which they have done it.
        The other point being, we talked about chemical exposures
    and the problems arising from those. If you retire and then die
    of asbestosis or silicosis or popcorn lung, you are not
    recordable, because the system particularly excludes these
    latent diseases that go on for a long time.
        And there is quite a lot of scientific literature about the
    under-recording of occupational injuries and illnesses, at
    least half a dozen----
        Mr. Price. I am running out of time, and I appreciate that,
    and I thank you.
        And I think it brings up the point, however, that I think
    there are differences between exposures to elements and
    musculoskeletal inherent challenges in any workplace.
        And I don't want to pick out certain companies, but UPS--in
    my area, I used to evaluate employees before they went on the
    job there. They go out of their way to make certain that their
    employees are doing things correctly and making certain that
    they are--because an employee who goes down is not productive
    for them, obviously.
        So I think that there are differences between exposure to
    elements, which Mr. Peoples had, obviously, and exposure to
    inherent risk of certain jobs.
        But I would commend the chairman for drawing attention once
    again to the title of this hearing, ``Have OSHA Standards Kept
    Up With Workplace Hazards?''
        And I would just make a comment, Madam Chair, if I may,
    that I am not certain that the government is nimble enough to
    keep up with the changing workplace and would suggest that we
    commend those institutions and those companies and workplaces
    that do, in fact, make certain that their employees are as safe
    as possible.
        And I yield back the balance of my time.
        Chairwoman Woolsey. Thank you, Mr. Price.
        Mr. Hare from Illinois?
        Mr. Hare. Thank you, Madam Chairman.
        With all due respect, Mr. Secretary and Mr. Fellner, I
    don't share your rosy opinion of the job that OSHA has been
    doing. In 2005, we lost 5,071 people to workplace deaths. That
    same year, we had 50,000 to 60,000 workers die from
    occupational diseases.
        And despite these alarming statistics, I find two pages of
    OSHA standards that have either been killed, delayed or thrown
    out by this administration--two pages of them. It is pretty
    hard to enforce a standard, from my perspective, when you throw
    them out.
        So I don't share with you, Mr. Secretary, your boss's
    commitment to protecting our workers when you start throwing
    standards down the drain.
        The other thing is I was interested in Mr. Fellner's
    comments when he talked about speed, and he mentioned it, and
    workplace du jour.
        Let me say this. We had a hearing here earlier on the B.P.
    explosion where 15 people died and over 100 people were
    injured. It was 10 years, as I understand the testimony at that
    hearing, from the time OSHA had had an inspection there.
        I don't think B.P. will be cited or OSHA will get a
    speeding violation for not going into that factory, into that
    plant, and looking at the problems there for a 10-year-period
    of time, Mr. Fellner.
        With regard to Mr. Peoples, I wonder if his illness happens
    to be one of those illness du jours that you were referring to
    in your testimony.
        The bottom line, it seems to me, here is, are we going to
    work and stand up for average working people?
        You know, Mr. Peoples is sitting here today. It is fine to
    say that we feel very bad for him. The problem is that we take
    standards that we want to have on the books and protect people
    and we do little or nothing with them.
        The chair and myself and a couple of other members of this
    committee have sent a letter to OSHA asking them to look into
    the Cintas Corporation, a company where a worker was killed.
    The Cintas people responded to us by basically telling us that
    the worker, in essence, was too stupid to know the job, and
    instead of putting the guards on, he was sucked into a dryer at
    300 degrees for 30 minutes and killed. I think that is
    insulting to him and to his family.
        It is my sincere hope, Mr. Secretary, that OSHA will take a
    look at this and will do whatever it can to make sure that
    Cintas starts complying. This is not what I would call a
    worker-friendly corporation.
        I guess what I would like to know, from your perspective--
    you say that since you have become Secretary you have
    discovered it is difficult, and you thought it would be more
    difficult than the standards, et cetera, but it appears like
    there has been a lack of will from OSHA.
        There has only been one, as I understand it, one major
    standard has been issued. So with all of these that have been
    cast aside, I am wondering, with only one standard that has
    been issued by OSHA, what has OSHA been doing?
        Mr. Foulke. Well, Congressman, I would say that we have
    been doing a great deal.
        And as I indicated in my testimony and by my comments on
    some other questions, you know, we have done a number of final
    rules on--you know, you are trying to characterize what is a
    major rule or what is a non-major rule. I won't get into that
    debate, but clearly the hexavalent chromium was a major rule.
    The fire protection of shipyards--updated rule. Assigned
    protection factor, electrical installation requirements--all
    these are rules that we have been working on that are going to
    help employees with their safety and health.
        So we are moving on things. We have done a whole series of
    things since 2001.
        Mr. Hare. Mr. Secretary, isn't it very hard to cite a
    company when OSHA doesn't even go in and inspect to see if the
    workplace is safe?
        I mean, there have been some companies that I understand
    that OSHA hasn't been into for 10 years to 15 years, so there
    has never been an inspection. I find it very difficult to
    understand how OSHA can protect the workplace and the workers
    in that workplace when there is no inspections.
        And the second thing--and I appreciate the chart, you know,
    showing how things are doing just swell. But isn't it true that
    the Journal of Occupational and Environmental Medicine
    concluded that the substantial declines in the number of
    illnesses and injuries between 1992 and 2003 corresponded
    directly with the changes in OSHA record-keeping rules?
        So are these charts that we are bantering about showing us
    how wonderful everything is, aren't these basically slanted
    figures, according to the Journal of Occupational and
    Environmental Medicine? Or is it, you know----
        Mr. Foulke. I am not exactly familiar with that specific--
    but I will state this, that if you look at the information that
    is provided there, and that is over a long period of time--and
    there was a break when the record-keeping changed. But even
    since that time period, even--and I won't get into a debate of
    if we have got apples to apples or oranges to oranges. But I
    would say from that period of time, from that change to the
    current, shows a continual decline in injury and illness rates
    and our fatality rates, so you know, we are making progress on
    it.
        Are we there yet? No. And every talk, when I go out and I
    speak with people, every time, I tell them, ``One fatality is
    one fatality too many.'' And I honestly believe that. So we are
    working on that.
        But we are trending in the right direction, and, you know,
    we are moving as quickly--and we are working on the standards.
    So to say that we are not doing that, you know, I would
    disagree with your characterization of that.
        Mr. Hare. Well, let me just ask you this, then, and
    finally--and I hope we will have a chance to ask another one.
    What is it going to take for OSHA to be able to go in a timely
    fashion? What do you need from us, in terms of Congress?
        Is it the lack of inspectors, the lack of funds to hire
    additional inspectors? What is it going to take for OSHA to be
    able to go in, in a timely fashion, and do the best job that
    they can?
        Listen, I understand accidents are going to happen. I am
    not suggesting for an instant that workers sometimes don't hit
    the wrong button, do something.
        I am asking, what is it going to take so that we don't have
    to have a 10-year lapse between the time somebody may notify
    the company or OSHA that you have a problem and their coming in
    and doing an inspection?
        Mr. Foulke. Well, Congressman, I would say this. And I have
    been on both sides of the fence, so I feel like I can kind of
    come from a decent perspective here.
        You know, I have looked at what OSHA targets. We have our
    site-specific targeting where we have identified 14,000
    facilities that had the worst injury and illness rates. And
    those are the ones that were targeted. And part of that--and so
    we are going after the people that had the worst injury and
    illness record. So we are focusing in on this.
        And we are going to also, as part of our enhanced
    enforcement programs, where we find employers that don't seem
    to respect the workers' rights to have a safe and healthy
    workplace, then we are expanding out on those inspections.
        So clearly, we are focusing. And that kind of gets to some
    of the questions about what we are doing.
        Chairwoman Woolsey. The gentleman's time has expired.
        Mr. Foulke. I am sorry.
        Chairwoman Woolsey. He is going to get to ask another
    question.
        Mr. Foulke. I was just trying to answer his----
        Chairwoman Woolsey. Finish your thought.
        Mr. Foulke. Well, I would just say that we are getting to
    that. Clearly, you don't want us to inspect employers that
    don't need to have great safety and health worksites. We have
    got to get to the people that don't have good worksites.
        And I would say to you that OSHA has the best system of
    identifying those employers that need to be inspected, and we
    are going after them. And like I say, we did 38,000-plus
    inspections just in the federal sector.
        Chairwoman Woolsey. Thank you.
        We are going to have a couple more. I am going to ask
    another question. Mr. Hare wants to ask another question. Then
    we will wrap up, unless--Mr. Kline, do you have--okay. Thank
    you.
        Mr. Foulke, my question to you is, how can OSHA change?
    What do we need to do to help OSHA change so that they can
    catch up with the California laws, Cal-OSHA? What is in the way
    of keeping up with California?
        Mr. Foulke. Well, you know, with respect to California, I
    would just have to say that we have different statutory and
    legal burdens to support our rulemaking effort that California
    does not have.
        Chairwoman Woolsey. So you are saying we need to change our
    rulemaking statutory----
        Mr. Foulke. No.
        Chairwoman Woolsey. I mean, is that holding us back?
        Mr. Foulke. It depends on what you would mean by holding
    you back. I would submit to you that if you look at the
    regulatory process that we have in place under the federal
    system, as opposed to California, we have things that the
    Congress has put in--Administrative Procedures Act. We have
    things in the OSHA Act that we have to follow. So those are
    just three of the things that the Congress has intended.
        So we have this. And all those things were put on for
    specific reasons, that the Congress, in its wisdom, said, ``You
    know, we have got to look at these things, because we can't
    rush into a standard, unless we have sound science.'' And I
    know that is what you want to have.
        Chairwoman Woolsey. Okay. California is the size of a
    country, 37 million people. If they can do it, why can't the
    federal government?
        Mr. Foulke. Well, I guess it comes back to what I was just
    saying, that we have certain regulatory mandates that the
    Congress has required us to do under the act, under the
    Congressional Review Act--all those things.
        Plus, on top of that, the court systems, as part of their
    review process on these things, have indicated that we have to
    do certain other things on feasibility and risk assessment.
        Chairwoman Woolsey. Okay. I really want to leave a little
    bit of my time.
        Mr. Foulke. No, I am sorry. I apologize.
        Chairwoman Woolsey. I mean, it sounds like we can--you
    know, we can't do it because we are us and they are them, and
    you know, there is something about learning from those that are
    successful.
        Mr. Schneider and Mr. Mirer, I would like to ask you to
    each take a minute and just respond to whatever it is that you
    have heard today that you haven't been able to say anything
    about.
        Mr. Schneider?
        Mr. Schneider. Yes, I think the problem is--you know, I
    think there are these regulatory burdens to meet, et cetera,
    and they can be met. But the problem that is happening now is
    there is a huge lag in time before we even get to rulemaking,
    just the political will to decide that we are going to start a
    rulemaking and get it going.
        Once it gets going, we can meet those burdens, but I think
    there really--you know, for example, on silica, we have waited,
    you know, years and years, and OSHA has not yet committed as to
    when they are going to publish a proposal. And just getting to
    that stage is, I think, where the delay is right now in this
    administration.
        Chairwoman Woolsey. Okay. Thank you.
        Mr. Mirer?
        Mr. Mirer. I have been doing this 30 years. It is not that
    hard to do. There are barriers. They should be reduced. But it
    is not that hard to do if the OSHA staff are told to go ahead
    and do it: Get together the economic assessment. Put out the
    proposal. Hold the hearings. Move it through to the end. Take
    the litigation burden and get on with it.
        They could do three or four standards, major standards, a
    year, or take a few years to get them through, but they could
    do it.
        And then I ask why, if California could have half the
    exposure of carbon monoxide, a quarter of the exposure of the
    dry-cleaning chemicals, a fortieth of the exposure of the
    solvent chemicals--clearly, the economic impact is not there
    because the state is operating.
        Why does not OSHA move forward with the process on these
    settled questions? We have got to get into the 21st century. We
    are not even done with the 20th in terms of scientific
    knowledge.
        Chairwoman Woolsey. Okay. Thank you.
        Mr. Hare?
        Mr. Hare. I just have a question for Mr. Schneider and Mr.
    Mirer.
        I asked the Secretary, and I don't think I got the answer,
    so maybe you could help me here. From your perspective, okay,
    from both of your perspectives, what can we as the Congress of
    the United States do, this institution do, to strengthen this
    Agency, to help it function better, to go in and be able to do
    the things that Congress has instructed this Agency to do?
        It seems to me--I am not suggesting we throw money at a
    problem here, but I am wondering, from your end of it--and you
    talked about standards and only one. It is mind-boggling that
    there has only been one standard issued by OSHA.
        But perhaps if you would spend the rest of my 5 minutes
    telling me, from your perspective, what can we do to help out
    here. Because I think that is what I am here to do, is to try
    to find out something we could do to make this Agency work
    better than it has.
        Mr. Schneider. Thank you very much.
        I think, really, what has worked in the past is Congress
    has said to the Agency, ``You have 6 months to put out a
    standard on lead, or on hazardous waste,'' and the agency has
    had to comply with that.
        And I think perhaps giving the agency some sort of legal
    time tables which they will be held to to put out regulations,
    and say, ``You have 3 years to do this,'' give them enough time
    that they can comply with it, and perhaps the resources to meet
    those deadlines, I think that is the only way that we are going
    to sort of maybe bring them up.
        And there are other things that could be done, but some of
    it is in my testimony.
        Mr. Mirer. It is basically the same answer.
        Number one, let's get what is left on the regulatory agenda
    done: silica, beryllium, some of these other materials that
    have been promised and nothing happened.
        Second, increase the resources devoted to standard setting
    with a requirement that they actually produce something. There
    is $16 million a year, 80 people involved in this. They could
    be producing more than they are.
        Finally, in a broader, longer-term change in the
    legislation, OSHA has to be required to respond to petitions
    for new protections with the same stringency that it is
    required to respond to an employer who wants to fight a
    standard. We have to move it forward.
        And those three things, I think, would have a big effect.
        The last thing is the PEL update project that has been
    talked about. That was Representative Norwood's, the late
    Representative's interest. We could get that done. You could
    get that done in a very short amount of time.
        Chairwoman Woolsey. Thank you.
        Well, thank you all for coming. We have heard today some
    really important information, but also information that I
    consider disturbing.
        OSHA is failing to keep up with modern-day workforce
    hazards, and that, in turn, does not protect American workers.
    And this is totally unacceptable.
        This coming Saturday is Workers Memorial Day, when we mourn
    workers in America and throughout the world, workers who have
    been hurt or killed on the job.
        And in this country, although we have made a lot of
    progress since the passage of OSHA in 1970, we are still losing
    workers on the job. We are not where we need to be. And this
    administration clearly does not have the health and safety of
    workers at the top of its priority list.
        Unnecessary tragedies are still occurring, to Mr. Peoples
    and other victims of popcorn lung, to the miners who have lost
    their lives in Sago and in other mines, and to the millions of
    other workers who become sick, injured or killed every day.
        As chair of this subcommittee, I pledge to make OSHA
    accountable. I pledge to explore legislative and other options
    to ensure that necessary and updated standards, as well as
    other measures to ensure health and safety, are put into place.
        To that end, on Thursday Senator Kennedy and I will be
    introducing the Protecting America's Workers Act. This bill
    would expand coverage to include public employees and other
    workers, assess higher fines and penalties for employers who
    ignore the law, enhance whistleblower protections, and, in the
    area of standards, mandate the issuance of the standard for
    personal protective equipment.
        Again, I thank you all for being here. You have been most
    marvelous and patient.
        As previously ordered, members will have 14 days to submit
    additional materials for the hearing record. Any member who
    wishes to submit follow-up questions in writing to the
    witnesses should coordinate with majority staff within the
    requisite time.
        Without objection, the hearing is adjourned.
        [The prepared statement of Mr. Price of Georgia follows:]

    Prepared Statement of Hon. Tom Price, a Representative in Congress From
                              the State of Georgia

        Throughout his career, Congressman Charlie Norwood championed the
    improvement of workplace conditions while crafting a reasonable balance
    between economic freedom and regulatory compliance for American
    businesses. As the former Chairman of the Workforce Protections
    Subcommittee, his record is one of great vision and profound impact.
    Congressman Norwood brought attention to issues like permissible
    exposure limits, non-consensus standards and worker protections. Before
    his passing in February, he introduced the Secret Ballot Protection
    Act, a piece of legislation aimed at preserving worker freedoms by
    ensuring access to the secret ballot in union organizing elections.
        And despite the differences between Republicans and Democrats on
    workforce matters, Congressman Norwood always strived to bring the two
    sides together to tackle workplace safety standards. He understood that
    while OSHA, as a regulator, should labor to protect workers and advance
    conditions, the agency must also comply with the regulatory process
    outlined by Congress decades ago. Surely, there can be common ground in
    his approach.
        As the Workforce Protections Subcommittee grapples with the
    question, ``Have OSHA standards kept up with workplace hazards?,'' it
    would be wise to heed his example and remember his record. His work on
    permissible exposure limits and non-consensus standards holds valuable
    lessons for future debate. This subcommittee would be best served to
    honor the legacy of this great Georgian by recognizing his
    contributions.
                                     ______

        [Letter submitted by Adam M. Finkel follows:]

                                                           May 8, 2007.
        Dear Chairwoman Woolsey: Although I was unable to attend your April
    24 hearing ``Have OSHA Standards Kept up with Workplace Hazards?'' in
    person, I read all of the testimony with great interest, and viewed the
    Q&A portion on the Internet. I would like to provide some additional
    information on the issues involved, from the perspective of an expert
    in quantitative risk assessment and cost-benefit analysis, and that of
    a former Director of Health Standards Programs at OSHA (1995-2000) and
    a former Regional Administrator (Region VIII) for OSHA (2000-2003). I
    am currently Professor of Environmental and Occupational Health at the
    UMDNJ School of Public Health, and a visiting professor of public
    affairs at the Woodrow Wilson School at Princeton University, although
    I have written these comments on my own time and am not representing
    the views of either of my academic institutions. In addition to my
    training and expertise in risk assessment, I have written numerous
    articles and books on issues of regulatory process, alternative
    regulatory design, agency priority-setting, and program evaluation;
    beginning later this year, I will also serve as executive director of
    the Penn Program on Regulation at the University of Pennsylvania Law
    School.
        For the past 25 years, I have strongly supported the increased use
    of risk assessment and cost-benefit analysis in regulatory decision-
    making, so none of my comments on OSHA's disappointing performance
    should be mistaken for antipathy to the analytic burdens OSHA must
    meet. I simply believe, contrary to the views espoused by several of
    your witnesses (notably Assistant Secretary Ed Foulke and attorney
    Baruch Fellner) that two fundamental conclusions are indisputable in
    light of the scientific, economic, and historical facts:
         That the largest preventable health and safety risks
    remaining to be addressed in our society occur disproportionately in
    U.S. workplaces (as opposed to the ambient environment, consumer
    products, the transportation sector, etc.), and therefore, that failing
    to regulate means failing to extract benefits that far exceed their
    costs; and
         That although it is by no means easy for OSHA to
    promulgate cost-effective regulations that incorporate the best
    available scientific information, OSHA's appalling lack of progress is
    clearly due to a failure of will and/or talent--because under different
    leaders, OSHA's track record of producing health-protective but fair
    standards, meeting all the analytic and public-participation
    requirements, was far superior to what it is now.
        I should emphasize that my concerns about OSHA's performance began
    before the 2001 Inauguration, although clearly output, morale, and
    other indices have declined steeply since that watershed. For example,
    I believe that some of the most productive ways for OSHA to help create
    safer and healthier workplaces involve meaningful partnerships with
    industry, sometimes in lieu of regulation, as long as the goal is to
    impel needed changes in behavior. Sometimes, traditional regulation
    would merely allow the relatively best workplaces to ``backslide,''
    while never reaching the worst performers; so in a national OSHA
    partnership with both the manufacturers and the installers of
    fiberglass insulation codified in 1999, the producers agreed to provide
    the needed resources, training, air monitoring, and PPE so that their
    customers could better protect their employees. I championed several
    such partnerships before leaving Health Standards in 2000, and tried to
    establish enforcement partnerships in Region VIII that required general
    contractors to improve health and safety performance among their
    subcontractors. But the very same ideas that President Bush's first
    head of OSHA dismissed as apparently too ``intrusive'' for industry
    (apparently preferring instead to emphasize ``alliances,'' also known
    as ``praise for continuing to do whatever you're doing'') were met with
    benign neglect in the waning years of the Clinton administration,
    apparently for being insufficiently punitive to industry.
        The way forward, I believe, lies in between these two doctrinaire
    positions. Indeed, the one sentence in Mr. Fellner's testimony I agree
    with completely is that ``the massive amount of time and resources
    applied to the ergonomics regulation clearly delayed and prevented the
    promulgation of other OSHA standards.'' I supported the 2000 ergonomics
    regulation (although I had developed a rather different version of it
    before leaving my position in Health Standards), but I greatly regret
    having been instructed in 1998 to stop work on all the other standards
    under my purview, including some of the very ones (e.g., tuberculosis,
    chromium, Assigned Protection Factors, PEL update chemicals) that the
    current OSHA leadership later had the opportunity to ``kill'' or weaken
    substantially because they had never been finalized.
        I will first provide some specific comments on Mr. Fellner's
    testimony, before concluding with a couple of other comments about
    issues raised at the hearing.
        Concerns about Mr. Fellner's testimony:
        1. In the second paragraph of his written testimony, Mr. Fellner
    concludes that based on the decline in recorded workplace fatalities
    and injuries, ``OSHA must be doing something right.'' As much as I want
    to believe this, having devoted 11 years of my career to OSHA, we
    simply don't know how steep the real decline, if any, might be, and
    what portion of it (if any) is due to OSHA's presence rather than to
    inexorable trends. The fatality rate was falling before there was an
    OSHA, it fell twice as steeply in the 1980s as it has since then, and
    the number of workplace fatalities rose in two of the past three years.
    With regard to injuries, the amount of under-reporting generates
    ``noise'' in the data that simply swamps any reliable ``signal'' of
    improvement (see, for example, Reference (1) below). More
    significantly, the statistics Mr. Fellner touts simply shed essentially
    no light on occupational illnesses (which scientists agree cause more
    than 90 percent of all of the premature deaths in the workplace),
    because the OSHA and Bureau of Labor Statistics recording systems are
    not designed to capture these sorts of fatalities. It has been 25 years
    since the last comprehensive survey of workplace exposures to hazardous
    substances, during which time Congress has funded dozens of large
    surveys of environmental hazards, dietary habits, etc. To the extent
    that OSHA is ``doing something right,'' I am thus deeply concerned that
    this may not apply at all to the area of occupational health (as
    opposed to safety). The key measure of OSHA's activity in safety versus
    health is the number of inspections OSHA conducts in each area. OSHA
    claims (Ref. 2) that it conducted more than 6700 ``health inspections''
    in FY06, or roughly 17 percent of its total inspections. But in
    response to a lawsuit I filed in 2005 under the Freedom of Information
    Act (see item #7 below), OSHA acknowledged that in only about 3 percent
    of the inspections in its history (roughly 70,000 inspections out of
    over 2 million conducted) were any chemical samples taken at all. It
    seems, therefore, that the vast majority of the so-called ``health
    inspections'' may in fact be safety inspections conducted by
    enforcement personnel with industrial hygiene credentials, and are only
    coded as ``health inspections.''
        2. Throughout his testimony, Mr. Fellner exaggerates how hard it is
    for OSHA to promulgate standards. Perhaps it appears ``daunting'' to a
    non-scientist for an agency to have to synthesize and interpret
    toxicologic, epidemiologic, and engineering data, but that is exactly
    what risk assessors do routinely and well. Indeed, the quotation he
    offers from Cellular Phone Taskforce v. FCC makes clear that regulatory
    risk assessment is, if anything, even easier to conclude than risk
    assessment in other arenas, because when the evidence is at its most
    controversial, the ``courts' deference to expert determinations should
    be [and is] at its greatest.'' And, despite the many requirements for
    OSHA to invite participation by stakeholders and respond substantively
    to their comments--all of which I support--when the will is there, the
    obstacle course can be completed cleanly and rather quickly. In one 18-
    month period of activity (late 1996 to early 1998)--OSHA promulgated
    three major final health standards--those for 1,3-butadiene, methylene
    chloride, and generic respiratory protection--and defended them in
    Congressional oversight hearings and court challenges, without a single
    provision being substantively weakened following any of this scrutiny.
        3. In his third paragraph, Mr. Fellner refers to the recent
    hexavalent chromium standard as ``a win for all parties and the
    vindication of a process that functioned properly to protect American
    workers.'' I have had no involvement in this rulemaking since leaving
    Health Standards in 2000, but I will point out that by OSHA's own
    calculations, the final standard leaves behind a lifetime excess cancer
    risk of between 10 and 45 cases per 1000 workers exposed under the
    legal limit. This risk is 10 to 45 times higher than the highest risk
    (1 per 1000) that the Supreme Court said (in its 1980 Benzene decision)
    could possibly be considered acceptably small, and 10,000 to 45,000
    times higher than the 1-in-one-million standard Congress has called for
    in various EPA statutes. I would respectfully suggest that this
    regulation does not represent a ``win'' for chromium workers.
        4. Mr. Fellner misses one of the main points of the Supreme Court's
    1980 Benzene decision when he states that ``OSHA [cannot] * * *
    recognize a few studies that seem to point in the direction of the most
    protective standard it can promulgate.'' The majority in Benzene made
    clear that OSHA has complete license to ``use conservative assumptions
    in interpreting the data with respect to carcinogens, risking error on
    the side of overprotection rather than underprotection.'' The use of
    ``conservative'' assumptions has been endorsed by several National
    Academy of Sciences committees (see, e.g., Ref. 3) and was recently re-
    affirmed in a major EPA report, released by the Bush administration
    Ref. 4). It is crucial to note that in actual practice, OSHA's use of
    risk-assessment assumptions is markedly less ``conservative'' than that
    of EPA and other agencies (even though its resulting ``acceptable''
    risk estimates are nevertheless much less stringent then those other
    agencies would allow). Still, an OSHA that recognized the gravity of
    its unfinished business could certainly make better use of Benzene and
    reduce the complexity of its assessments, if that was indeed
    contributing to the lack of output. I should also mention for
    completeness that if anything is exaggerated in cost-benefit analysis,
    it is the estimates of the costs of regulation--an ingrained bias that
    causes OSHA's (and other agencies') cost-benefit determinations to err
    on the side of under-regulation (see Refs. 5-7).
        5. On the last page of his written testimony, Mr. Fellner makes
    reference to ``hazards du jour.'' This strikes me as a thinly-veiled
    but bizarre insult to those inside and outside the Agency who are
    concerned about the retreat from standard-setting. The Roman Empire
    (Pliny the Elder) knew about silicosis 2100 years ago, but OSHA's limit
    is still twice as high as the level NIOSH recommended more than 30
    years ago. The beryllium PEL (2 micrograms per m3 of air, encountered
    every working day for a 45-year working lifetime) was developed in
    1949, and it has been clear for more than a decade that the equivalent
    of one day's exposure at that level has caused a grave lung disease in
    some workers so exposed. Yes, OSHA is also failing to respond to new
    hazards, but these are not ``fads.''
        6. In his next sentence, Mr. Fellner refers to outsiders trying to
    ``micromanage'' the agency. This choice of words is also disingenuous,
    unless you believe that ``micromanaging'' can apply to a request as
    fundamental as ``do something rather than do nothing.'' Simply as a
    logical, not a partisan point of reference, it seems to me that this is
    akin to accusing those calling for a withdrawal of U.S. troops from
    Iraq of trying to ``micromanage the war.'' In any event, the Supreme
    Court (ref. 8) recently expressed its clear view that when an agency
    (in this case, EPA) fails to decide whether it should even consider
    regulating an important hazard, ``outsiders'' may have a right to force
    it to perform this core task.
        7. In his last bullet point, Mr. Fellner poses a laudable question:
    ``Is OSHA * * * directing its inspectors to workplaces with the
    deadliest and most serious workplace hazards subject to regulations
    that are already on the books?'' I believe that as important as this
    question is, no one can answer it properly at present, in large part
    because OSHA is actively thwarting such inquiries. I was forced to file
    suit against OSHA under FOIA in 2005, because I made a routine request
    for OSHA's air sampling data in order to ask this very question, among
    others (see Ref. 9). I had hoped to explore, for example, whether OSHA
    tends to increase its level of effort to inspect workplaces for
    particular substances, once it has found widespread violations of PELs
    for those substances--my experience as Director of Health Standards and
    as a Regional Administrator suggests that OSHA rarely seeks to make
    these sorts of connections, and may even turn its attention away from
    substances where widespread non-compliance has been detected. But OSHA
    has withheld these data from me, claiming (despite having released the
    data to others on many previous occasions) that it now believes there
    are ``trade secrets'' somewhere within the database--secrets that it
    has failed to mark as such and therefore cannot selectively redact. In
    some of its court filings in this pending litigation, OSHA has admitted
    that it has never analyzed (and has no plans to analyze) its own
    exposure data for beryllium, even though at least 11 of its own
    inspectors have been found to have blood abnormalities caused by
    beryllium exposure. The exposure histories of these inspectors would
    certainly provide one indication of where ``the deadliest and most
    serious workplace hazards'' could be found, but OSHA apparently has no
    interest in asking this question, or in allowing others to ask it.
        Other Comments:
        I also want to comment on the statement Rep. Wilson made at the
    hearing, to the effect that OSHA has issued ``22 standards'' since
    Inauguration Day 2001. OSHA's Office of Communications recently
    prepared a document entitled ``OSHA Final Standards Published 1971 to
    Present'' that indeed lists 22 actions after January 20, 2001. But by
    my count, 15 of the 22 items were either technical clarifications (4
    items), approving state plans (2), plain language rewrites of existing
    standards (1), changes to whistleblower procedures (1), or substantive
    actions that served to deregulate rather than impose new requirements
    (7). Curiously, the OSHA document lists only 3 standards for calendar
    year 1997 (when I was HSP director)--but by the same expansive rules of
    what to list, we actually published 13 such actions in 1997 alone, and
    more than 70 during the first six years of the Clinton administration.
    I understand OSHA's frustration with ``bean counting,'' but the proper
    response to those concerned with quantity over quality is to emphasize
    the significance of what was done, not to grossly exaggerate the output
    in one period while ignoring the same categories in previous periods.
        Finally, I wish to make two points about the hazards of diacetyl.
    First, Mr. Fellner stated during questioning from Mr. Bishop that
    ``there is no dose-response curve with respect to diacetyl,'' and that
    ``in the absence of a dose-response curve, * * * as the Supreme Court
    indicated in the Benzene decision in 1980, that is insufficient to
    promulgate a standard at very low levels.'' I believe these statements
    are misleading at best, both as a scientific and legal matter. It would
    certainly be desirable to be able to know more about the shape of the
    dose-response function below the levels of diacetyl exposure that
    unambiguously can cause grave harm to those exposed--but it's certainly
    not true that there is no such function. It may be steeper at high
    doses than at low ones, and it may even have a threshold, but while we
    await such refinement there exists a wealth of information supporting
    the first-order assumption that (especially when extrapolating down by
    a factor of 100 or less) a linear function makes biological sense (see,
    e.g., Ref. 10). I lack Mr. Fellner's extensive training in law, but I
    will observe that the Benzene court faulted OSHA for ``avoiding the
    Secretary's threshold responsibility of establishing the need for more
    stringent standards'' and avoiding its ``obligation to find that a
    significant risk is present before it can characterize a place of
    employment as `unsafe' ''--it did not focus on the precise showing OSHA
    would have to make to support any particular exposure reduction once it
    had shown (through quantitative risk assessment) that some control was
    necessary to reduce a ``significant'' risk. In other words, OSHA does
    not have to know the precise shape of the diacetyl dose-response
    relationship if it wished to make the scientific and legal case (which
    I believe is, as they say, a ``no-brainer'') that uncontrolled exposure
    to diacetyl poses a significant risk of material impairment of health.
        Secondly, Mr. Foulke's testimony indicated that in 2001, following
    release of a NIOSH report, ``OSHA promptly alerted its Regional
    Administrators and Area Directors to NIOSH's findings and instructed
    its field personnel to look into the issue when encountering
    individuals working around butter flavoring in popcorn manufacturing.''
    I was one of the 10 Regional Administrators at that time, and I
    remember receiving the NIOSH report. However, I also remember being
    frustrated to learn shortly thereafter that Region VII had established
    an alliance with the Popcorn Board, in which it received the names and
    addresses of relevant facilities, but only in that Region. I was
    dismayed that Region VII did not take the opportunity to ask the Board
    for the complete list of facilities nationwide, but was told (by my
    colleague and by the Assistant Secretary at the time) that if I wanted
    to know where the facilities were in our Region, I should ``go get my
    own alliance.'' In effect, the OSHA leadership warned the field that
    lung disease might be found where diacetyl was used, but offered no
    assistance in helping us determine where the diacetyl was.
        Conclusion:
        Less than 10 years ago, I was proud to be part of an OSHA that was
    ``keeping up with workplace hazards.'' During the period 1996-1998, we
    had roughly 12 doctoral-level staff in Health Standards, and we put out
    three major final rules, the tuberculosis proposal, completed cutting-
    edge risk assessments for six of the most important PEL update
    chemicals, established the fiberglass and other enforceable product-
    stewardship agreements, etc. Now only 2 or 3 health scientists with
    advanced degrees remain, and the output has plummeted, even though the
    scientific and procedural hurdles have not gotten any higher. For
    example, the methylene chloride rule has one of the most sophisticated
    biologically-based quantitative risk assessments ever conducted by any
    federal agency, and we re-wrote the entire analysis for this rule in
    under 2 years.
        No one who has any expertise in regulatory science, economics, or
    process could possibly answer the question posed by this hearing
    (``Have OSHA Standards Kept up with Workplace Hazards?'') in any way
    but ``no.'' The solution is not to complain about the need to do good
    science, but simply to get back to doing good science, like OSHA used
    to do.
        Thank you for the opportunity to submit my views for the record on
    these important public policy and scientific questions.
                Sincerely,
                                    Adam M. Finkel, Sc.D., CIH.
                                   references
        1. Rosenman KD, et al. ``How much work-related injury and illness
    is missed by the current national surveillance system?'' J Occup
    Environ Med, 2006;48(4): 357-365.
        2. Morris, J. ``Slow Motion: OSHA Waits for More Proof before
    Taking Action against a Lethal Lung Disease.'' National Journal, May 5,
    2007, pp. 32-35.
        3. National Research Council. Science and Judgment in Risk
    Assessment, National Academy Press, 1994. See esp. pages 89 and 632 for
    endorsements of ``conservative'' assumptions by the entire Committee,
    as well as pp. 601-627, for a proposal (endorsed by some of the members
    of the Committee) to judge alternative assumptions in part by the
    extent to which they might introduce errors of risk under-estimation.
        4. U.S. Environmental Protection Agency. ``An Examination of EPA
    Risk Assessment Principles and Practices.'' Office of the Science
    Advisor, EPA/100/B-04/001, March 2004, 192 pp.
        5. U.S. Office of Technology Assessment. Gauging Control Technology
    and Regulatory Impacts in Occupational Safety and Health: An Appraisal
    of OSHA's Analytic Approach, report #OTA-ENV-635, September 1995, 102
    pp.
        6. Harrington, Winston, Richard D. Morgenstern and Peter Nelson
    (2000). ``On the Accuracy of Regulatory Cost Estimates.'' Journal of
    Policy Analysis and Management, 19(2), pp. 297-322.
        7. Goodstein, Eban, and Hart Hodges (1997). ``Polluted Data:
    Overestimating Environmental Costs.'' The American Prospect, 35 (Nov./
    Dec.), pp. 64-69.
        8. U.S. Supreme Court. Massachusetts et al v. EPA et al., No. 05-
    1120, April 2, 2007.
        9. Adam M. Finkel v. United States Department of Labor,
    Occupational Safety and Health Administration, No. 3:05-cv-05525-MLC-
    TJB, U.S. District Court, District of New Jersey.
        10. Martha Crawford and Richard Wilson (1996). ``Low-Dose
    Linearity: The Rule or the Exception?'' Human and Ecological Risk
    Assessment, 2, pp. 305-330.
                                     ______

        [Prepared statement of the Printing Industries of America,
    Inc. (PIA) follows:]

      Prepared Statement of the Printing Industries of America, Inc. (PIA)

        The Printing Industries of America, Inc. (PIA) is pleased to
    present this statement for the record before the House Committee on
    Education and Labor Subcommittee on Workforce Protections, and thanks
    Chairwoman Woolsey for holding a hearing to examine the important topic
    of workplace safety. PIA is the world's largest graphic arts trade
    association representing an industry with more than 1.2 million
    American employees. PIA's nearly 12,000 member companies are dedicated
    to the goal of providing safe work environments.
        PIA would like to add to the dialogue on OSHA standards and
    workplace hazards by commenting on two specific aspects of workplace
    safety: the relationship of OSHA Standards to market-driven workplace
    safety technologies and employer-employee workplace safety education,
    particularly in the form of OSHA-Industry voluntary alliances.
    OSHA Standards & Market-Driven Workplace Safety Technology
        As we consider if and how OSHA Standards are keeping up with
    workplace hazards, PIA believes it is appropriate to consider the
    nature and structure of OSHA standards. Many of OSHA's standards are
    written in a static nature and quickly become outdated due to changes
    in technology and work practices. The process that OSHA has to observe
    in the development of new or in the revision of existing standards
    hampers the ability of OSHA to keep pace with changes in the workplace.
        In addition to being quickly outdated, many of OSHA standards are
    cumbersome, laden with administrative burdens, and are inflexible. The
    combination of these factors has created a situation where safety can
    be jeopardized and is not advanced.
        For example, since OSHA released its final version of the Lockout/
    Tagout Standard in 1989, tremendous progress has been made in safety
    systems of manufacturing equipment that have taken advantage more
    reliable circuitry, redundant systems, interlocks, guards, and light
    curtains. Ever since the standard was released, the printing industry
    has had ongoing discussions with OSHA regarding the application of the
    Lockout/Tagout Standard to routine procedures. These discussions have
    resulted in two letters of interpretations, but the effort to obtain
    these letters has taken years of effort. The letters focus on only one
    main alternative that can be followed for minor servicing and
    maintenance and do not recognize other alternatives brought about by
    advanced technologies.
        One such alternative is the use of ``light curtains'' that form
    barriers in front of the point of operation and prevent a machine from
    operating if the light beam is broken by an object, like a hand or
    other body part. These light curtains are used to control the hazards
    of unexpected machine movement during the operation of a particular
    type of cutter, which is used to cut large press sheets into small
    ones. The light curtains also protect the worker from unexpected
    movement during the knife changing sequence. However, OSHA still
    requires that the equipment be completely de-energized during this
    particular service and maintenance procedure, and, most importantly,
    power to the cutter is required so that the blade can be positioned to
    allow for its removal and replacement. Turning off the power is not
    necessary, is cumbersome, and creates a disincentive for workers to
    follow standards, which could lead to unnecessary injuries.
        Another positive example of workplace safety technology outpacing
    OSHA Standards is the state-of-the-art printing press that comes with
    automatic blanket washers that clean ink and other debris off blanket
    cylinders used to transfer printed images to paper. Workers previously
    washed industrial blankets by hand. The new technology is performed
    solely by machines, thereby reducing a worker's exposure to danger.
        Neither of these worker safety initiatives was created by
    regulation or legislation, but by marketplace demand for safer
    processes and more competitive practices for American manufacturers.
    PIA believes that OSHA Standards should be written to allow for the new
    and improved market-driven safety technology in today's workplace that
    allow workers to do their jobs more efficiently and in an improved,
    safer manner.
    Employer-Employee Workplace Safety Education
        Employee education is a key part of workplace safety; it's outlined
    as a ``responsibility'' in the Act. Specifically, section (b) (2) of
    the original OSH Act states ``that employers and employees have
    separate but dependent responsibility'' to engage in safe work
    environments.
        In recent years, there has been a joint effort by OSHA and industry
    to increase employee training on workplace safety.
        In 2002, the OSHA--Graphic Arts Coalition Alliance on ergonomics
    was signed as one of the first voluntary is one example of industry
    helping OSHA conduct employee education on safety issues. The purpose
    of this Alliance, which was resigned in 2004 and again last summer, is
    to utilize the Printing Industries of America as a partner to:
         help identify and prevent workplace hazards specific to
    print process, like screen-printing or lithography,
         develop and disseminate case study illustrating the
    business value of safety and health,
         communicate workplace safety outreach through national PIA
    conferences and local meetings of printers, and to
         promote PIA member companies' participation in compliance
    assistance programs, Voluntary Protection Programs (VPP) and the Safety
    and Health Achievement Recognition Program (SHARP). Utilizing the trade
    association to promote these programs seems to work; Printing
    Industries of America member companies, such as RR Donnelley & Sons in
    Lynchburg, VA and Ploy Print, Inc. of Tucson, AZ, have received VPP and
    SHARP awards.
        The Alliance also puts safety tools right in the hands of workers.
    For example, the Alliance's e-tool allows a worker in a screen printing
    facility to log on, select his or her printing specialty process to
    learn about common hazards and about what solutions OSHA and other
    workers in the same field recommend minimizing these hazards.
        Alliances like this are important because OSHA can't educate all
    employers and employees by itself. PIA hopes that OSHA will consider
    alliances such as the one governing the graphic arts industry as an
    important tool in fulfilling the ``responsibilities and rights'' aspect
    of the OSH Act, and will continue utilizing such private-public
    partnerships to further the efforts of minimizing workplace hazards and
    improving overall worker safety.
        Additionally, PIA would be remiss in not noting that just as OSHA
    can't educate all employers and employees by itself; neither can
    alliances such as the OSHA Graphic Arts Coalition Alliance be fully
    responsible for worker safety education. Employees must be equal
    partners in this venture and must take initiative to follow existing
    OSHA Standards to protect themselves from hazards.
        In conclusion, PIA, on behalf of its nearly 12,000 member companies
    employing 1.2 million American employees, commends the Subcommittee for
    examining the topic of workplace safety. PIA looks forward to working
    with Congress and with OSHA to further initiatives that provide
    practical solutions to a shared goal of minimizing workplace hazards
    and improving overall workplace safety in the graphic arts industry.
        Thank you for the opportunity to comment on this important topic.
                                     ______

        [Prepared statement of the Tree Care Industry Association
    (TCIA) follows:]

        [Whereupon, at 3:59 p.m., the subcommittee was adjourned.]