[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.]

                                 
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