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34–633 PDF 2007

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 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Howard P. ‘‘Buck’’ McKeon, California, 

Ranking Minority Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Bob Inglis, South Carolina 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan

Mark Zuckerman, Staff Director 

Vic Klatt, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

LYNN C. WOOLSEY, California, Chairwoman

Donald M. Payne, New Jersey 

Timothy H. Bishop, New York 

Carol Shea-Porter, New Hampshire 

Phil Hare, Illinois 

Joe Wilson, South Carolina, 

Ranking Minority Member 

Tom Price, Georgia 

John Kline, Minnesota 

(III)

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

(1)

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 

2

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. 

3

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:]

4

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 midthought. 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. 

5

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. 

6

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:]

7

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 

8

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 ocVerDate 0ct 09 2002 09:57 Nov 14, 2007 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-25\34633.TXT HBUD1 PsN: DICK
9

curred 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. 

10

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 largescale 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 

11

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 

12

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. 

13

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. 

14

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 demonVerDate 0ct 09 2002 09:57 Nov 14, 2007 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\WP\110-25\34633.TXT HBUD1 PsN: DICK
15

strably 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. 

16

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. 

17

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. § 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. 

18

• 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. § 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. 

19

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:]

20

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 

21

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. 

22

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. 

23

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.

24

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 


mirer.eps
25

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 

26

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. 

27

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 standardmaking process. Those things are ongoing, so we are working on 

28

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-anddime, 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. 

29

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.’’

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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 socalled 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 flatout 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 outVerDate 0ct 09 2002 09:57 Nov 14, 2007 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\WP\110-25\34633.TXT HBUD1 PsN: DICK
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reach 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. 

32

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 

33

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 

34

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:]


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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. 


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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:]


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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 


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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 treatmentfree for 30 days, the recurrence of a musculoskeletal disorder or 

any other injury was a new occurrence and was recordable. Now, 

58

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 underrecording 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. 

59

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? 

60

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. 

61

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. 

62

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? 

63

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 

64

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-

65

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 

66

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 

67

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 firstorder assumption that (especially when extrapolating down by a factor of 100 or 

68

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 #OTAENV-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. 

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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. 

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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 privatepublic 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:]

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

Æ


tcia-2.eps