```

[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]

 
                       ADDRESSING CONCERNS ABOUT
                     THE U.S. DEPARTMENT OF LABOR'S
                     USE OF NON-CONSENSUS STANDARDS
                     IN WORKPLACE HEALTH AND SAFETY

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                                 of the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             June 14, 2006

                               __________

                           Serial No. 109-44

                               __________

  Printed for the use of the Committee on Education and the Workforce

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house
                                   or
            Committee address: http://edworkforce.house.gov

                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
28-432                      WASHINGTON : 2006
_____________________________________________________________________________
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                COMMITTEE ON EDUCATION AND THE WORKFORCE

            HOWARD P. ``BUCK'' McKEON, California, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California,
    Chairman                           Ranking Minority Member
Michael N. Castle, Delaware          Dale E. Kildee, Michigan
Sam Johnson, Texas                   Major R. Owens, New York
Mark E. Souder, Indiana              Donald M. Payne, New Jersey
Charlie Norwood, Georgia             Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan           Robert C. Scott, Virginia
Judy Biggert, Illinois               Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania    Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio              Carolyn McCarthy, New York
Ric Keller, Florida                  John F. Tierney, Massachusetts
Tom Osborne, Nebraska                Ron Kind, Wisconsin
Joe Wilson, South Carolina           Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada                David Wu, Oregon
John Kline, Minnesota                Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado        Susan A. Davis, California
Bob Inglis, South Carolina           Betty McCollum, Minnesota
Cathy McMorris, Washington           Danny K. Davis, Illinois
Kenny Marchant, Texas                Raul M. Grijalva, Arizona
Tom Price, Georgia                   Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico         Tim Ryan, Ohio
Bobby Jindal, Louisiana              Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana  [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New 
    York
[Vacancy]

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

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                   CHARLIE NORWOOD, Georgia, Chairman

Judy Biggert, Illinois, Vice         Major R. Owens, New York
    Chairman                           Ranking Minority Member
Ric Keller, Florida                  Dennis J. Kucinich, Ohio
John Kline, Minnesota                Lynn C. Woolsey, California
Kenny Marchant, Texas                Timothy H. Bishop, New York
Tom Price, Georgia                   [Vacancy]
Thelma Drake, Virginia               George Miller, California, ex 
Howard P. ``Buck'' McKeon,               officio
    California,
  ex officio

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 14, 2006....................................     1

Statement of Members:
    Norwood, Hon. Charlie, Chairman, Subcommittee on Workforce 
      Protections, Committee on Education and the Workforce......     1
        H.R. 5554, the Workplace Safety and Health Transparency 
          Act of 2006............................................     2
        Prepared statement of....................................     4
        Letter of support from Independent Lubricant 
          Manufacturers Association..............................    58
        Prepared statement of Associated Builders and Contractors    59
    Owens, Hon. Major R., Ranking Minority Member, Subcommittee 
      on Workforce Protections, Committee on Education and the 
      Workforce..................................................     5
        Newspaper articles:
            ``Bush Forces a Shift in Regulatory Thrust; OSHA Made 
              More Business-Friendly,'' Washington Post, August 
              15, 2004...........................................     7
            ``Cancer Hits 283 Rescuers of 9/11,'' New York Post, 
              June 11, 2006......................................    13

Statement of Witnesses:
    Casper, Joseph S., Vice President, Environment, Health & 
      Safety, the Brick Industry Association.....................    29
        Prepared statement of....................................    31
    Foulke, Edwin G., Jr., Assistant Secretary of Labor for 
      Occupational Safety and Health.............................    14
        Prepared statement of....................................    16
    Michaels, David, Ph.D., MPH, Director, the Project on 
      Scientific Knowledge and Public Policy; Research Professor 
      and Associate Chairman, Department of Environmental and 
      Occupational Health, George Washington University..........    35
        Prepared statement of....................................    36
        Supplemental testimony--court cases......................    49
    Sarvadi, David G., Esq., Keller and Heckman LLP..............    40
        Prepared statement of....................................    41
        Supplemental testimony--court cases......................    52

Additional Materials Supplied:
    Letter submitted by the Brick Industry Association...........    60
    Letter submitted by the Chamber of Commerce of the United 
      States.....................................................    61
    Letter submitted by Henry Chajet, Esq., Patton Boggs LLP.....    62
    Letter submitted by the National Mining Association..........    63
    Letter submitted by the National Stone, Sand & Gravel 
      Association................................................    64
    Letter submitted by the Associated General Contractors of 
      America....................................................    64
    Letter submitted by the Masonry Contractors Association of 
      America....................................................    65
    Letter submitted by the Association of Occupational and 
      Environmental Clinics......................................    66
    Prepared statement of Brush Wellman Inc......................    66
    Letters submitted by Industrial Minerals Association.........    70
    Prepared statement of the Interlocking Concrete Pavement 
      Institute..................................................    72
    Letter submitted by the National Association of Manufacturers    73
    Prepared statement of the National Concrete Masonry 
      Association................................................    73
    Prepared statement of the Society for Occupational and 
      Environmental Health.......................................    74
    Letter submitted by the Portland Cement Association..........    75

                       ADDRESSING CONCERNS ABOUT
                     THE U.S. DEPARTMENT OF LABOR'S
                     USE OF NON-CONSENSUS STANDARDS
                     IN WORKPLACE HEALTH AND SAFETY

                              ----------                              

                        Wednesday, June 14, 2006

                     U.S. House of Representatives

                  Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:35 a.m., in 
room 2175, Rayburn House Office Building, Hon. Charlie Norwood 
[chairman of the subcommittee] presiding.
    Present: Representatives Norwood, Kline, McKeon, Owens, and 
Kucinich.
    Staff present: Steve Forde, Communications Director; Rob 
Gregg, Legislative Assistant; Jessica Gross, Press Assistant; 
Richard Hoar, Professional Staff Member; Jim Paretti, Workforce 
Policy Counsel; Molly McLaughlin Salmi, Deputy Director of 
Workforce Policy; Deborah L. Emerson Samantar, Committee Clerk/
Intern Coordinator; Loren Sweatt, Professional Staff Member; 
Michele Evermore, Legislative Associate/Labor; Tylease 
Fitzgerald, Legislative Assistant/Labor; Peter Galvin, Senior 
Legislative Associate; Marsha Renwanz, Legislative Associate/
Labor.
    Chairman Norwood [presiding]. A quorum being present, the 
Subcommittee on Workforce Protections will come to order.
    We are meeting here today to hear testimony on addressing 
concerns about the U.S. Department of Labor's use of 
nonconsensus standards in workplace health and safety.
    Under committee rule 12(b), opening statements are limited 
to the chairman and the ranking minority member of the 
subcommittee. Therefore, if other members have statements, they 
may be included in the hearing record.
    With that, I ask unanimous consent for the hearing record 
to remain open for 14 days to allow member statements and other 
extraneous material referenced during the hearing to be 
submitted in the official hearing record.
    Without objection, so ordered.
    The last time I called this subcommittee to order in late 
April, I declared the Department of Labor's reliance on 
nonconsensus standards set by nongovernment organizations had 
to stop. I was not kidding then and I am deadly serious about 
it today. I have called this hearing to further this 
subcommittee's investigation into the use of nonconsensus 
standards in workplace health and safety regulations.
    As most of you know, I am particularly concerned that DOL's 
hazardous communication rule automatically incorporates such 
standards behind closed doors without public input and without 
transparency. This is simply unacceptable and it is high time 
that Congress stepped in to force a change.
    During our April hearing, witnesses described attempts to 
provide one specific group, the American Council of Government 
and Industrial Hygienists, with information before they set 
threshold limit values, or TLVs, on exposure limits. We heard 
that stakeholders are frustrated by the lack of communication, 
the lack of input, and the closed nature of the process in 
which TLVs are set.
    Quite frankly, I do not blame them. After all, if my small 
business was forced to adjust my operations every time a TLV 
changes, I would be fit to be tied as well.
    Let me speak bluntly. I believe that many TLVs fail the 
smell test when it comes to sound science. I believe many are 
adopted with little critical analysis other than a literature 
search. And not to put too fine a point on this matter, I 
believe many are produced by government employees acting on a 
personal agenda that they cannot accomplish during their day 
job.
    Now, I might not be able to change the TLV process. That is 
for the organization's board of directors to decide. But if 
TLVs are to influence Federal regulation that business, labor 
and employees everywhere must abide by, the Department of Labor 
must require the same scrutiny that other Federal regulations 
undergo before they are made. For in effect, when you make a 
regulation or a rule, it is law.
    For that reason, I have introduced the Workplace Safety and 
Health Transparency Act of 2006, known as H.R. 5554.
    [The bill follows:]

                               H.R. 5554

    To amend the Occupational Safety and Health Act of 1970 and the 
Federal Mine Safety and Health Act of 1977 to prohibit the promulgation 
of safety and health standards that do not meet certain requirements 
for national consensus standards.
                    in the house of representatives

                              June 8, 2006

    Mr. Norwood (for himself, Mrs. Miller of Michigan, Mr. Wicker, and 
Mr. Tiahrt) introduced the following bill; which was referred to the 
Committee on Education and the Workforce
                                 a bill
    To amend the Occupational Safety and Health Act of 1970 and the 
Federal Mine Safety and Health Act of 1977 to prohibit the promulgation 
of safety and health standards that do not meet certain requirements 
for national consensus standards.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Workplace Safety and Health 
Transparency Act of 2006''.

SEC. 2. ADOPTION OF NONGOVERNMENTAL STANDARDS UNDER THE OCCUPATIONAL 
                    HEALTH AND SAFETY ACT.

    (a) Adoption by OSHA.--The Occupational Health and Safety Act of 
1970 (29 U.S.C. 651 et seq.) is amended by adding after section 6 the 
following:
                ``adoption of nongovernmental standards
    ``Sec. 6A.  (a) Effective on the date of enactment of this section, 
the Secretary shall not promulgate or incorporate by reference any 
finding, guideline, standard, limit, rule, or regulation based on a 
determination reached by any organization, unless the Secretary 
affirmatively finds that such determination--
            ``(1) has been adopted and promulgated by a nationally 
        recognized standards-producing organization under procedures 
        whereby it can be determined by the Secretary that persons 
        interested and affected by the scope or provisions of the 
        standard have reached substantial agreement on its adoption;
            ``(2) was formulated in a manner which afforded an 
        opportunity for diverse views to be considered; and
            ``(3) has been designated as such a standard by the 
        Secretary, after consultation with other appropriate Federal 
        agencies.
        Such finding and a summary of its basis shall be published in 
        the Federal Register and shall be considered a final action 
        subject to review by a United States District Court in 
        accordance with section 706 of title 5, United States Code.
    ``(b) With respect to rulemaking proceedings initiated by the 
Secretary but not finalized prior to the date of enactment of this 
section, the Secretary shall, within 180 days of the date of enactment 
of this section, investigate and identify the use of, influence of, or 
reliance upon any finding, guideline, standard, limit or any other 
recommendation that has not been made by an organization and procedure 
that does not comply with the requirements set forth in subsection (a). 
The Secretary shall publish the results of such investigations in the 
Federal Register and, in any final rule, standard, or official 
recommendation that is prescribed under such proceedings, shall not 
incorporate, use, or rely upon any finding, guideline, standard, limit, 
or other recommendation that does not comply with the requirements set 
forth in subsection (a). The Secretary's actions under this section 
shall be subject to review by a United States district court of 
appropriate jurisdiction.''.
    (b) Approval of State Plans.--Section 18 of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 667) is amended by adding at the end 
the following:
    ``(i) The Secretary shall not approve a State plan under this 
section that incorporates by reference any finding, guideline, 
standard, limit, rule, or regulation based on a determination reached 
by any organization, unless the Secretary determines that the standards 
adopted in such plan are standards that--
            ``(1) have been adopted and promulgated by a nationally 
        recognized standards-producing organization under procedures 
        whereby it can be determined by the State that persons 
        interested and affected by the scope or provisions of such 
        standards have reached substantial agreement on their adoption; 
        and
            ``(2) were formulated in a manner which afforded an 
        opportunity for diverse views to be considered.''.

SEC. 3. ADOPTION OF NONGOVERNMENTAL STANDARDS UNDER THE FEDERAL MINE 
                    SAFETY AND HEALTH ACT.

    Section 101 of the Federal Mine Safety and Health Act of 1977 (30 
U.S.C. 811) is amended by adding at the end the following:
    ``(f)(1) Effective on the date of enactment of this section, the 
Secretary shall not promulgate or incorporate by reference any finding, 
guideline, standard, limit, rule, or regulation based on a 
determination reached by any organization, unless the Secretary 
affirmatively finds that such determination--
            ``(A) has been adopted and promulgated by a nationally 
        recognized standards-producing organization under procedures 
        whereby it can be determined by the Secretary that persons 
        interested and affected by the scope or provisions of the 
        standard have reached substantial agreement on its adoption;
            ``(B) was formulated in a manner which afforded an 
        opportunity for diverse views to be considered; and
            ``(C) has been designated as such a standard by the 
        Secretary, after consultation with other appropriate Federal 
        agencies.
Such finding and a summary of its basis shall be published in the 
Federal Register and shall be considered a final action subject to 
review by a United States District Court in accordance with section 706 
of title 5, United States Code.
    ``(2) With respect to rulemaking proceedings initiated by the 
Secretary but not finalized prior to the date of enactment of this 
subsection, the Secretary shall, within 180 days of the date of 
enactment of this subsection, investigate and identify the use of, 
influence of, or reliance upon any finding, guideline, standard, limit 
or any other recommendation that has not been made by an organization 
and procedure that does not comply with the requirements of paragraph 
(1). The Secretary shall publish the results of such investigations in 
the Federal Register and, in any final rule, standard, or 
recommendation that is prescribed under such proceedings, shall not 
incorporate, use, or rely upon any finding, guideline, standard, limit, 
or other official recommendation that does not comply with the 
requirements of paragraph (1). The Secretary's actions under this 
section shall be subject to review by a United States district court of 
appropriate jurisdiction.''.
                                 ______
                                 
    Chairman Norwood. My legislation would prohibit the 
Department of Labor from incorporating or relying upon a 
nongovernmental organization's standard unless the secretary of 
labor determines and certifies that the standard complies with 
the OSH Act definition of a consensus standard.
    My legislation would also require that OSHA plans to 
certify to the secretary of labor that the standards they 
administer meet those same consensus standard criteria. In 
short, my goal in drafting H.R. 5554 is to reestablish 
transparency in the rulemaking process. The legislation will 
ensure that any outside workplace standard that DOL 
incorporates by reference meets the high standards required by 
the OSH Act.
    After all, any standard, recommendation or guidance 
produced by an outside organization should be subject to a 
fair, open and transparent process if it plays an official role 
in influencing that regulation.
    I now want to say this. The right to petition and redress 
your government is a fundamental constitutional right. Offer 
what criticism you would like of this bill, but I do not 
believe anyone here would dispute that principle. I am simply 
trying to reestablish that right within OSHA regulations.
    I am pleased to have the OSHA administrator with us today, 
and I welcome his comments and views on the agency's standard-
setting practice. I also look forward to hearing from our 
witnesses about their concerns regarding DOL's use of 
nonconsensus standards, and how H.R. 5554 will hopefully 
improve that practice.
    I would now like to yield to my friend, Mr. Owens, for 
whatever opening statement he wishes to make.

 Prepared Statement of Hon. Charlie Norwood, Chairman, Subcommittee on 
    Workforce Protections, Committee on Education and the Workforce

    The last time I called this subcommittee to order in late April, I 
declared the Department of Labor's reliance on non-consensus standards 
set by non-government organizations had to stop. I was not kidding 
then, and I am deadly serious about it now.
    I've called this hearing to further this subcommittee's 
investigation into the use of non-consensus standards in workplace 
health and safety regulation.
    As most of you know, I am particularly concerned that DOL's Hazard 
Communications rule automatically incorporates such standards behind 
closed doors without public input and without transparency. This is 
unacceptable, and it is high time that Congress step in to force a 
change.
    During our April hearing, witnesses described attempts to provide 
one specific group, the American Council of Government Industrial 
Hygienists, with information before they set Threshold Limit Values, or 
TLVs, on exposure limits.
    We heard that stakeholders are frustrated by the lack of 
communication, the lack of input, and the closed nature of the process 
in which TLVs are set. Quite frankly, I do not blame them. After all, 
if my small business was forced to adjust my operations every time a 
TLV changes, I'd be fit-to-be-tied as well.
    Let me speak bluntly. I believe that many TLVs fail the smell test 
when it comes to sound science. I believe many are adopted with little 
critical analysis other than a literature search. And not to put too 
fine a point on the matter, I believe many are produced by government 
employees acting on a personal agenda that they cannot accomplish at 
their day job.
    Now I might not be able to change the TLV process--that's for the 
organization's board of directors to decide. But if TLVs are to 
influence federal regulation that business, labor and employees 
everywhere must abide by, the Department of Labor must require the same 
scrutiny that other federal regulations undergo before they are made 
final.
    For that reason, I have introduced the Workplace Safety and Health 
Transparency Act of 2006, H.R. 5554. My legislation would prohibit the 
Department of Labor from incorporating or relying upon a non-
governmental organization's standard unless the Secretary of Labor 
determines and certifies that the standard complies with the OSH Act 
definition of a consensus standard.
    My legislation would also require state OSHA plans to certify to 
the Secretary of Labor that the standards they administer meet these 
same ``consensus standard'' criteria.
    In short, my goal in drafting H.R. 5554 is to reestablish 
transparency in the rulemaking process. The legislation will ensure 
that any outside workplace standard that DOL incorporates by reference 
meets the high standards required by the OSH Act. After all, any 
standard, recommendation or guidance produced by an outside 
organization should be subject to a fair, open, and transparent process 
if it plays an official role in influencing regulation.
    Finally, I want to say this. The right to petition and redress your 
government is a fundamental, Constitutional right. Offer what criticism 
you would like to the bill, but I do not believe any one disputes this 
principal. I am simply trying to reestablish that right within OSHA 
regulations.
    I am pleased to have the OSHA Administrator with us today, and I 
welcome his comments and views on the Agency's standard-setting 
practice.
    I also look forward to hearing from our witnesses about their 
concerns regarding DOL's use of nonconsensus standards and how H.R. 
5554 will hopefully improve that practice.
                                 ______
                                 
    Mr. Owens. Thank you, Mr. Chairman.
    Mr. Chairman, since taking office, the Bush administration 
has seriously undermined enforcement of the Occupational Safety 
and Health Act of 1970, placing them at odds with an American 
public that overwhelmingly supports efforts to strengthen 
safety and health in the workplace. In 2004, for example, the 
Wall Street Journal published a poll in which close to eight 
out of every ten respondents said they wanted Congress to focus 
on ways to ensure greater on-the-job safety protection and 
health.
    To date, this administration and this Congress have failed 
to address the American people's strong desire for more 
safeguards in the workplace. In fact, the Occupational Safety 
and Health Administration has been relaxing worker safety rules 
and enforcement, as opposed to strengthening them. Unlike 
Presidents Reagan, Bush I, and Clinton, for example, the 
current President Bush's political appointees at OSHA failed to 
issue a single significant safety standard during his first 4 
years in office.
    From 2001 through 2004, OSHA also withdrew 24 rules 
designed to safeguard workers from the processing of reactive 
and potentially explosive chemicals, exposure to the highly 
toxic metalworking fluids, industry standards in oil and gas 
drilling services, hazardous energy and construction, and 
scaffolding collapses in construction work, among others.
    At the same time, the current Bush administration has 
chosen to delay indefinitely the release of other important 
OSHA rules. One such rule placed in limbo by OSHA is a proposal 
to clarify that employers must not only provide all workers 
with appropriate personal protective equipment, PPE, but also 
pay for it. This clarification was proposed by the Clinton 
Administration and scheduled for completion in the fall of 
2000.
    In the spring of 2001, however, the Bush administration 
changed course and reclassified the rule as a ``long-term 
project.'' Next, OSHA reopened public comments on the rule, 
inviting discussion of whether PPE is a tool of the trade. If 
PPE is deemed a tool of the trade, workers would then be solely 
responsible for paying all associated costs. This is especially 
problematic for lower-wage immigrants and guestworkers.
    A recent investigative series in the Sacramento Bee 
documented worker deaths and such serious bodily injuries as 
blindness and paralysis due to the lack of protective goggles, 
boots and gloves among Pineros or forest workers on H(2)(b) 
visas in our national forests. I ask unanimous consent that 
this series of articles entitled ``The Pineros: Forest Workers 
Caught in a Web of Exploitation,'' be placed into the record.
    Chairman Norwood. So ordered.*
---------------------------------------------------------------------------
    *Submitted and placed in the permanent archive file, Tom Knudson 
and Hector Amezcua, ``The Pineros: Forest Workers Caught in a Web of 
Exploitation,'' the Sacramento Bee, 13-15 November 2005, Metro Final 
Edition. sec. Main News, A1.
---------------------------------------------------------------------------
    Mr. Owens. I also mention on the record that the public 
comment period on PPE ended well over a year ago, yet OSHA 
still persists in postponing its final release.
    Another rule indefinitely delayed by OSHA would update 
permissible exposure limits, PELs, and require specific 
controls over silicon in mines and on constructionsites. Since 
2001, OSHA has ignored recommendations by the National 
Institute for Occupational Safety and Health, NIOSH, to make 
exposure limits to silicon more stringent in light of its 
classification as a carcinogen, and high correlation with 
silicosis, a disease which results in the deaths of thousands 
of miners and construction workers.
    Since 2001, OSHA has also postponed any action on updating 
exposure limits and requiring controls on such powerful 
carcinogens as beryllium and ethylene dioxide.
    In addition, OSHA is dragging its feet on updating 
electrical safeguards, safeguarding construction workers in 
confined spaces, revising respiratory protections, 
strengthening fire protection in shipyards, and improving 
safety standards for general industry, marine terminals, and 
constructionsites, among others.
    The fact that OSHA has become less attentive to worker 
safety and more focused on special corporate interests has not 
gone unnoticed in the press. Mr. Chairman, I ask unanimous 
consent that a Washington Post article entitled ``Bush Forces a 
Shift in Regulatory Thrust, OSHA Made More Business-Friendly,'' 
be included in the record in its entirety.
    Chairman Norwood. So ordered.
    [The information referred to follows:]

              [From the Washington Post, August 15, 2004]

               Bush Forces a Shift In Regulatory Thrust;
                    OSHA Made More Business-Friendly

                   By Amy Goldstein and Sarah Cohen,
                     Washington Post Staff Writers

                        First of three articles

    Tuberculosis had sneaked up again, reappearing with alarming 
frequency across the United States. The government began writing rules 
to protect 5 million people whose jobs put them in special danger. 
Hospitals and homeless shelters, prisons and drug treatment centers--
all would be required to test their employees for TB, hand out 
breathing masks and quarantine those with the disease. These steps, the 
Occupational Safety and Health Administration predicted, could prevent 
25,000 infections a year and 135 deaths.
    By the time President Bush moved into the White House, the 
tuberculosis rules, first envisioned in 1993, were nearly complete. But 
the new administration did nothing on the issue for the next three 
years.
    Then, on the last day of 2003, in an action so obscure it was not 
mentioned in any major newspaper in the country, the administration 
canceled the rules. Voluntary measures, federal officials said, were 
effective enough to make regulation unnecessary.
    The demise of the decade-old plan of defense against tuberculosis 
reflects the way OSHA has altered its regulatory mission to embrace a 
more business-friendly posture. In the past 31/2 years, OSHA, the 
branch of the Labor Department in charge of workers' well-being, has 
eliminated nearly five times as many pending standards as it has 
completed. It has not started any major new health or safety rules, 
setting Bush apart from the previous three presidents, including Ronald 
Reagan.
    The changes within OSHA since George W. Bush took office illustrate 
the way that this administration has used the regulatory process to 
redirect the course of government.
    To examine this process, The Washington Post explored the Bush 
administration's approach to regulation from three perspectives. This 
article about OSHA traces the impact on one regulatory agency. 
Tomorrow's story will look at a lobbyist's 32-line, last-minute 
addition to a bill that created a tool for attacking the science used 
to support new regulations. Tuesday's article will document a one-word 
change in a regulation that allowed coal companies to accelerate 
efforts to strip away the tops of thousands of Appalachian mountains.
    The Post also analyzed a database from the Office of Management and 
Budget containing the 38,000 regulatory actions considered by agencies 
over the past two decades.
    The analysis, combined with the more detailed look at specific 
regulatory decisions, shows how an administration can employ this 
subtle aspect of presidential power to implement far-reaching policy 
changes. Most of the decisions are made without the public attention 
that accompanies congressional debate. Under Bush, these decisions have 
spanned logging in national forests, patients' rights in government 
health insurance programs, tests for tainted packaged meats, Indian 
land transactions and grants to religious charities.
    All presidents have written or eliminated regulations to further 
their agendas. What is distinctive about Bush is that he quickly 
imposed a culture intended to put his anti-regulatory stamp on 
government.
    Unlike his two predecessors, Bush has canceled more of the 
unfinished regulatory work he inherited than he has completed, 
according to The Post's analysis. He has also begun fewer new rules 
than either President Bill Clinton or President George H.W. Bush during 
the same period of their presidencies. Since the younger Bush took 
office, federal agencies have begun roughly one-quarter fewer rules 
than Clinton and 13 percent fewer than Bush's father during comparable 
periods.
    President Bush's closest advisers and sharpest critics agree that 
the shift in regulatory climate since he took office in January 2001 
has been profound. But they disagree over whether that shift represents 
a harmful turn away from federal protections to benefit business or a 
useful streamlining of costly government rules.
    Sally Katzen, who oversaw all federal regulation for five years 
under Clinton as deputy budget director for information and regulatory 
affairs, said new regulations were, in those days, embraced as a means 
to improve the quality of water, of air--in short, of people's lives. 
``Bush, or at least the people around him, are skeptical, if not 
hostile to that notion,'' she said.
    John D. Graham, who holds the same job in the Bush White House, 
said regulations are ``a form of unfunded mandate that the federal 
government imposes on the private sector or on state or local 
governments.'' A president, he said, should not be judged solely by the 
number of regulations he starts or cancels.
    This White House, Graham said, has initiated regulations when the 
benefits clearly outweigh the costs--for example, a decision last year 
that eventually will require labeling of trans fatty acids in food. 
``We've just been much more selective about expensive new regulatory 
requirements than previous administrations have been,'' he said.
    At OSHA, the administration's regulatory philosophy has translated 
into a smaller staff to develop new standards, less reliance on the 
views of organized labor and an enlarged role for businesses.
    As Bush set out in 2001 to recast the government along more 
conservative lines, workplace standards seemed an unlikely focus. 
During his transition period, the new president did not assign anyone 
to assess OSHA; the transition ``team'' for the entire Labor Department 
consisted of one longtime congressional aide.
    A relatively small part of the department for three decades, OSHA 
has the large mission of sifting through research on potential hazards 
to workers and deciding when the government should step in. It writes 
federal standards, conducts inspections to determine whether employers 
follow them and metes out punishment when they do not.
    Bush offered the job of running OSHA to a career-long industrial 
hygienist from St. Louis who was a virtual stranger to Washington.
    John L. Henshaw had worked for two decades at Monsanto Co., a giant 
manufacturer of agricultural chemicals. Most recently, he had been the 
director of environment, safety and health at Astaris LLC, another 
chemical company.
    Even though he had come from industry, Henshaw was viewed by the 
administration's critics as a more palatable choice than they had 
expected. ``He's a competent, well-regarded safety and health 
professional,'' Peg Seminario, the longtime occupational safety and 
health director of the AFL-CIO, the umbrella labor organization, said 
at the time. ``Well qualified for this important responsibility,'' Sen. 
Edward M. Kennedy (D-Mass.), then chairman of the labor panel, said 
when Henshaw was approved unanimously by the committee on Aug. 3, 2001, 
and immediately confirmed without debate.
    During his first days in Washington, Henshaw made it clear that he 
would carry out a directive from Labor Secretary Elaine L. Chao 
instructing the entire department to comb through the regulatory work 
Clinton's aides had left unfinished and find items to eliminate. Chao 
explained the order in a letter in 2001 to John J. Sweeney, the AFL-CIO 
president. The list of incomplete work left over from the Clinton days, 
she wrote, ``had swollen to unmanageable size, containing many items 
that had been moribund for years, making it an inaccurate and 
effectively useless document.''
    Chao's order was in keeping with the new White House philosophy.
    The day Bush was sworn in, his chief of staff, Andrew H. Card Jr., 
issued a memo that, in an unprecedented move, put a two-month freeze on 
final rules across the government that had not yet gone into effect. 
The new administration wanted time to decide whether to change or 
reverse them.
    A few months later, Graham, the White House's top regulatory 
official, was alerting agencies that they would face closer scrutiny 
from the OMB when they proposed new rules. The day after he was 
confirmed by the Senate, he sent the first of 14 letters to agencies 
saying they had failed to prove the need for regulations they had 
proposed. That was more than had been sent during Clinton's eight 
years.
    The most dramatic symbol of the new regulatory climate arose from a 
joint action by Bush and Congress.
    Two months after he took office, a Republican Congress, making 
first use of a recent power to review regulations, repealed the biggest 
worker-safety standard of the Clinton years. The standard was a set of 
rules that created broad safeguards against ergonomic injuries. Without 
Bush's signature, the repeal could not have taken effect.
    The death of the ergonomics standard, Democrats and Republicans now 
agree, exposed a weakness of Clinton's regulatory strategy at OSHA in 
his last few years--putting so much emphasis on that standard that 
others were left unfinished.
    The agency had concentrated nearly all its energy and political 
capital on the effort to protect workers against musculo-skeletal 
injuries, such as repetitive-stress injuries and carpal tunnel 
syndrome. The rules would have required employers to redesign 
workplaces if they were hazardous and compensate people who became 
disabled. The Clinton administration believed the standard, covering 
more than 6 million work sites at an estimated cost of $4.5 billion for 
employers, was the biggest step the government could take to protect 
the greatest number of employees.
    As a result, OSHA left other major proposals, including the 
tuberculosis rules, unfinished--and thus easier to cancel. Those 
dangling rules, combined with the sudden end of the ergonomics 
standard, emboldened Bush's corporate allies to fight new rules from 
OSHA--and the expense they could entail.
    ``In the past, the business community worked to develop regulations 
that were acceptable,'' said Patrick R. Tyson, an Atlanta lawyer 
representing corporations in occupational safety matters who held 
senior positions at OSHA in the 1970s and '80s. ``But now the game has 
changed, and the business community feels like they can kill any 
regulation they want.''
    The new administration began by trying to cut staff and money at 
OSHA. In his first year in office, Bush wanted to eliminate nearly 100 
of the agency's 2,400 jobs. His budget also would have reduced funding 
for the standards-setting part of the agency by $1.2 million, or 8 
percent. Lawmakers restored the money and the positions.
    The next year, the administration succeeded in eliminating 10 jobs 
out of 95 in the standards area, when Henshaw merged divisions dealing 
with health and safety. The merger, Henshaw said, eliminated 
duplicative jobs in middle management. But it angered some current and 
former OSHA employees, who said it cost the agency some of its 
expertise.
    ``I finally couldn't take it anymore,'' said Peter Infante, who 
retired after 24 years at OSHA as the senior epidemiologist who helped 
to develop health standards. He had planned to stay long enough to 
finish years of work on rules to protect workers from beryllium, a 
metal that can cause cancer if inhaled in minute amounts. Instead, he 
left in May 2002, saying that the only U.S. company that mines and 
processes beryllium ore had gained too much influence inside the 
agency.
    Henshaw said in an interview that the bottom line for OSHA is not 
how many rules it produces but how many people get hurt, sick or killed 
at work under its watch. He said trends are improving. Henshaw said he 
is proud that the agency has increased federal inspections of 
workplaces.
    The overall number of inspections has increased under Bush, but the 
typical inspection takes less time, and fewer are in response to 
accidents or complaints. OSHA officials say they are more trusting now 
of industries with good safety records, while putting greater emphasis 
on those--such as construction--where workers are most prone to injury. 
Union leaders said that inflates an appearance of vigilance, because 
OSHA counts each subcontractor at a construction site as a separate 
inspection.
    With its current staff, Henshaw said, OSHA can visit about 2 
percent of the nation's workplaces each year. Given those limits, he 
said, it has made sense to strengthen the agency's relationships with 
businesses, encouraging voluntary compliance.
    To do so, OSHA has created a new kind of voluntary program, 
intended to foster ``trusting, cooperative relationships'' between the 
government and groups of industries and professional societies, 
according to an agency fact sheet. These new alliances, as they are 
known, depart from a central tradition throughout the agency's history: 
They are allowed to exclude labor unions. Of the 57 national alliances 
OSHA has formed, with groups ranging from air conditioning contractors 
to shipyard owners, just one--intended to promote safe work habits in 
road construction zones--includes a union representative.
    Agency officials say that more than 500 other, older voluntary 
projects run by OSHA still involve unions. As for the new alliances, 
one OSHA administrator, speaking on the condition of anonymity, said 
that some employers might be too uncomfortable to participate if unions 
were there.
    In November 2002, OSHA announced an alliance with 13 airlines and 
the National Safety Council to find better ways to prevent workers who 
handle baggage from being injured. The OSHA alliance excluded airline 
unions, which had asked to take part.
    ``It is simply illogical and insulting,'' Sonny Hall, president of 
the AFL-CIO's transportation trades department, said at the time, 
``when the powers that be in this administration's OSHA sat down to 
form a private-sector group to reduce injuries to airline workers that 
they chose to exclude, of all people, airline workers.''
    At the same time, Henshaw was carrying out Chao's orders. Echoing 
his superiors at the Labor Department and in the White House, Henshaw 
said the Clinton administration had left too much unfinished regulatory 
work at the agency. OSHA, Henshaw repeatedly said, needed to convert 
its agenda from a ``wish list'' to a ``to-do list.''
    The data analyzed by The Post show that Clinton left behind 44 
incomplete rules at OSHA, just four more than when Bush's father had 
moved out of the White House eight years earlier. ``I don't recall 
things being added just because somebody asked for them,'' said Katzen, 
who had been the top official for regulations in the Clinton White 
House.
    Henshaw's housecleaning produced dramatic effects. By the end of 
Bush's first year in office, OSHA had eliminated 18 of the 44 rules. By 
the end of 2003, six more, including the tuberculosis protections, were 
gone.
    ``Every one of the items on there had some merit. Nobody is 
disputing that,'' Henshaw said of the proposals he removed. ``But there 
is only so much you can do.''
    Many of the cases involved complex arguments pitting the interests 
of workers against those of their employers.
    In August 2001, the same month Henshaw was confirmed, the agency 
stopped efforts to regulate chemicals used in making semiconductors and 
suspected of causing miscarriages in workers. The agency's written 
explanation at the time consisted of one sentence: ``OSHA is 
withdrawing this entry from the agenda at this time due to resource 
constraints and other priorities.''
    A month after the semiconductor decision, OSHA eliminated a 
proposal, dating to the Reagan administration, that would have updated 
lists of the amounts of industrial chemicals to which workers could be 
exposed. The new administration said it made more sense to regulate 
each substance one at a time, a slower process.
    That December, the agency killed a proposal on indoor air quality 
intended to prevent restaurant and other workers from exposure to 
tobacco smoke or other pollutants. State and local standards, OSHA 
said, had solved the problem.
    Some of the canceled rules will make it more difficult for Bush's 
critics to pursue regulations in the future. After Congress and Bush 
killed the ergonomics rules, OSHA eliminated a proposal to compel 
employers to break out ergonomic injuries when they report on worker 
injuries in general.
    Henshaw said at the time that such records would not help to reduce 
such injuries. Seminario of the AFL-CIO said that, without such 
records, advocates of ergonomic protections have less ability to 
document that federal safeguards are needed.
    With his focus largely on coaching employers to follow existing 
rules, Henshaw said, ``writing another standard is not going to help 
with that.'' Still, he said, the agency has continued to write new 
rules when they are needed.
    At OSHA, The Post's analysis found, the rules the agency has 
proposed are narrower than most of those it has eliminated. Thirteen of 
the 24 proposals it has canceled since Bush took office fall into a 
category the government classifies as ``economically significant,'' 
meaning they would cost or save the economy at least $100 million. None 
of the 16 standards OSHA has proposed during that time falls in that 
group.
    Graham said it does not make sense for OSHA to overreach. From his 
days as a Harvard professor, Graham said, he knew of research 
suggesting that neither the health nor safety standards created over 
OSHA's history had a clear track record of being effective. Besides, he 
said, OSHA's procedures have always made it uncommonly sluggish in 
churning out big rules.
    Graham said OSHA has set into motion an ethic of ``smart 
regulation'' that the White House has tried to instill across the 
government: creating new rules only after rigorous scientific and 
economic analysis proves they are warranted. Under Henshaw, he said, 
OSHA has shown ``an intensely practical, down-to-earth approach to 
worker health and safety, not inclined toward grandiose, unrealistic 
ventures.''
    In several instances where Bush's OSHA has moved a rule forward, it 
has done so in a way that has benefited a specific business interest.
    One case concerns the updating of a 25-year-old standard intended 
to ensure that workers do not inhale hazardous substances. The update 
said that employers--from factory owners to firehouses--must assess 
hazards, select appropriate safety masks, train workers to use them and 
periodically check to see whether they fit.
    After the Clinton administration finished the standard in 1998, 
however, a critical question lingered: What safety rating should the 
agency assign to the different types of masks? Those ratings, which 
would tell how effective a given mask was at removing contaminants from 
the air, would cover everything in the category--elaborate respirators 
as well as inexpensive paper masks sold at any hardware store.
    The stakes were huge for workers and the companies that make the 
masks: Some type of respiratory protection is used in more than 600,000 
workplaces, one in every 10 nationwide, a recent federal survey found. 
And no corporation had a larger stake in the decision than 3M Co., 
which pioneered disposable dust masks in the early 1970s and is their 
largest manufacturer.
    3M and other companies said the disposable version deserved the 
same rating as the more sophisticated respirators, a decision that 
would increase sales of the disposable masks and provide a buffer 
against a growing volume of lawsuits over their effectiveness.
    Last winter, OSHA held a hearing on this question. An expert 
witness hired by the government testified that the disposable masks 
were as effective as the more elaborate ones, as long as they were 
checked periodically to ensure they fit properly.
    The witness, Warren R. Myers, mentioned in explaining his 
qualifications that he was an associate dean at West Virginia 
University's college of engineering and mineral resources and that he 
had worked for a dozen years testing respirators at a branch of the 
federal Centers for Control and Prevention. He did not mention that he 
had worked previously as a consultant to 3M.
    Another witness took a different view. Richard W. Metzler, who 
works for the National Institute for Occupational Safety and Health in 
Pittsburgh, testified that researchers have not evaluated most of the 
disposable mask models sold today. ``There has been a lack of 
science,'' Metzler, who directs NIOSH's National Personal Protective 
Technology Laboratory, said in an interview.
    Opposition to 3M's position also came from an industrial scientist 
named James S. Johnson at the Lawrence Livermore National Laboratory in 
California. He is the chairman of an American National Standards 
Institutes (ANSI) committee. His views were particularly important. By 
law, OSHA is supposed to coordinate its standards with ANSI committees. 
Johnson testified that the committee had concluded that the dust masks 
deserved a lower rating--half that of the more elaborate respirators.
    Faced with such mixed testimony, 3M took action.
    This February, Tyson, the Atlanta lawyer and former OSHA official, 
filed a motion on behalf of the company with the Labor Department's 
administrative law judge. The motion asked the agency to disregard the 
ANSI committee's conclusions on the grounds that they were in draft 
form and ``currently under appeal.''
    The reason they were under appeal: 3M and two of the company's 
allies had challenged ANSI's conclusions just a month earlier.
    The company ``was screaming bloody murder,'' said Mark Nicas of the 
University of California at Berkeley, who had been given three 
contracts by OSHA during the 1990s to advise the government on 
respiratory issues. ``It just doesn't want to upset the market share.''
    In April, the administrative law judge rejected Tyson's motion, 
saying that OSHA was free to make its own judgments about the 
conflicting testimony. Still, when OSHA publicly proposed its rating 
scale in June, it called for all masks, including disposable ones, to 
get the same ranking, just as 3M wanted.
    The 3M gambit had apparently worked: The OSHA official who spoke on 
the condition of anonymity said the agency could not take Johnson's 
testimony or the ANSI committee's conclusions into account because it 
is allowed to consider only final recommendations.
    The agency did not want to wait for the outcome of the ANSI 
appeal--even though 3M was using it to hold up the process--because, 
the official said, that dispute may take ``forever.''
    ``We can't be hamstrung that way,'' the official said.
    As OSHA has recalibrated worker protections, one word can make a 
big difference. This summer, OSHA has thrown open the question of what 
``provide'' means.
    That question is heir to a dispute that began in 1994, when the 
agency issued rules on safety equipment in dangerous jobs. The rules 
say an employer must determine what kind of equipment a worker needs--
hard hats, protective gloves and clothing, safety goggles--and provide 
it to the employee.
    The regulation, however, does not specify who pays for the 
equipment--or whether the employer can, as industry has argued, deduct 
the cost from the worker's wages. A year later, OSHA said that 
``provide'' means ``pay for.'' Industry groups appealed that 
definition. Eventually, OSHA's review commission decided employers 
could not be made to pay without a new rule.
    In 1998, a federal study found that workers in low-paying jobs more 
often were being charged for their safety equipment. The practice was 
most prevalent in the construction trades, where just slightly more 
than half of employers were picking up the full expense of hard hats 
and welding goggles.
    The following year, OSHA proposed a rule to make clear that 
``provide'' meant ``pay for.''
    That rule was one of many that were not quite final when Bush took 
office. Last year, after two years of OSHA inaction, a coalition of 
nine unions petitioned Chao demanding that the rule be issued within 
two months.
    That did not happen. Instead, Henshaw announced in July that OSHA 
wanted to rethink part of the issue--particularly for equipment that 
employees can take from job to job--and asked for new outside comments. 
And that was how a rule headed for approval under Clinton became open 
to further delay and uncertainty.
    Agency officials speaking on the condition of anonymity said that, 
in the end, the government might keep the proposed rule--or it might 
decide that employers do not need to pay for certain kinds of safety 
equipment. Or for any at all.
    Asking for more outside opinions was the same step OSHA officials 
had taken before they canceled the tuberculosis protections the day 
before New Year's.
    The evidence on the TB standard is mixed.
    Government record-keeping is so sketchy it is impossible to tell 
how many workers are being infected with TB on the job. The two main 
unions that have lobbied for the protections since the beginning, the 
American Federation of State, County and Municipal Employees and the 
American Federation of Teachers, were unable to provide a single 
example of someone who could talk on the record about having caught TB.
    Given the murkiness, the outside opinions that prevailed came from 
the American Hospital Association and other groups that had long 
resented the idea of OSHA enforcing safety practices. Opponents said 
government no longer needs the requirement for tuberculosis tests, 
patient quarantines and the other protections in the standard.
    The disease had waned in most states in the decade since OSHA began 
developing the TB standard, the critics argued. Besides, they said, the 
Centers for Disease Control already provided voluntary guidelines for 
protecting workers.
    There was some support for this position in an evaluation of the 
proposed standard by a respected advisory group, the Institute of 
Medicine, which had been ordered to conduct the study at the behest of 
congressional Republicans while Clinton was in office.
    But when the study came out the month Bush took office, it 
concluded that the standard still was worthwhile, even if it might not 
need to cover as many workers.
    In the end, OSHA cited the study in its rationale for eliminating 
the TB standard.
    Unions and public health officials were furious. TB rates continue 
to increase in many states, they said. Even where the rates have gone 
down, they said, workers in health clinics or hospitals still run into 
the disease.
    Nicas has conducted research on whether hospitals around San 
Francisco adhere to the CDC guidelines. Even though the hospitals were 
doing a better job, he found, all had lapses sometimes. A federal 
regulation, he said, still is needed.
    ``The health care industry [does not] like being regulated by 
OSHA,'' Nicas said. ``But then, that puts them in league with every 
other industry.''
    Immediately after winning its long battle to eliminate the TB 
standard, the nation's hospitals and their allies began a new campaign. 
They sought to block a rule requiring yearly checks to make sure that 
the breathing masks of their workers fit correctly.
                                 ______
                                 
    Mr. Owens. Regrettably, today's hearing does not focus on 
OSHA's failure to issue a final PPE rule or establish standards 
on such powerful carcinogens as crystalline silica and 
beryllium.
    Fortunately, a witness we requested, Dr. David Michaels, is 
an esteemed epidemiologist at George Washington University with 
expert knowledge of beryllium and its association with 
occupational exposure to it. During the Clinton Administration, 
Dr. Michaels served as assistant secretary of the Department of 
Energy and was the chief architect of the bipartisan program 
designed to compensate nuclear weapons workers who developed 
cancer and lethal lung disease as a result of exposure to 
beryllium radiation and other hazards.
    We welcome Dr. Michaels, and we look forward to his 
testimony.
    In closing, Mr. Chairman, I know that we have a special 
opportunity this morning to hear from the new assistant 
secretary for occupational safety and health, Mr. Foulke. For 
my part, I want to hear Assistant Secretary Foulke's plans for 
beefing up enforcement efforts at OSHA in light of the agency's 
abdication of that responsibility since 2001.
    Moreover, I want to hear of his plans for ensuring that 
even in the event of a future national disaster, OSHA will not 
abdicate its responsibility for enforcing workplace safety 
rules. Immediately after the terrorist bombings of the World 
Trade Center on 9/11, for example, OSHA stated that it would 
not enforce safety rules during the rescue, cleanup, and 
recovery work to be carried out at Ground Zero.
    As a result, today hundreds of Ground Zero workers are now 
gravely ill and more than 30 have died of cancer. I ask 
unanimous consent that the New York Post article entitled 
``Cancer Hits 283 Rescuers of 9/11'' be included in the record.
    Chairman Norwood. So ordered.
    [The information referred to follows:]

                [From the New York Post, June 11, 2006]

                    Cancer Hits 283 Rescuers of 9/11

                            By Susan Edelman

    Since 9/11, 283 World Trade Center rescue and recovery workers have 
been diagnosed with cancer, and 33 of them have died of cancer, says a 
lawyer for the ailing responders.
    David Worby, a lawyer for 8,000 World Trade Center responders, 
including cops, firefighters, and construction workers, said the cases 
include several dozen blood-cell cancers such as leukemia, lymphoma, 
Hodgkin's and myeloma.
    Doctors say the cancers can strike three to five years after 
exposure to toxins such as benzene, a cancer-causing chemical that 
permeated the WTC site from burning jet fuel.
    ``One in 150,000 white males under 40 would normally get the type 
of acute white bloodcell cancer that strikes a healthy detective,'' 
said Worby, whose first client was NYPD narcotics cop John Walcott, now 
41. Walcott spent months at Ground Zero and the Fresh Kills landfill. 
The father of three is fighting leukemia.
    ``We have nearly 35 of these cancers in the family of 50,000 Ground 
Zero workers. The odds of that occurring are one in hundreds of 
millions,'' Worby said.
    Others suffer tumors of the tongue, throat, testicles, breast, 
bladder, kidney, colon, intestines, and lung, said Worby, of Worby, 
Groner, Edelman, & Napoli, Bern, which filed the class-action suit.
    ``The incidence of testicular cancer in healthy males is about one 
in 40,000. We have 14,'' Worby said.
    WTC workers who have died of cancer include paramedic Deborah 
Reeve, 41 (mesothelioma), NYPD officer Ronald Weintraub, 43 (bile-duct 
cancer), and Stephen ``Rak'' Yurek, 46, a Port Authority emergency 
technician (brain cancer). The families say they were healthy before 9/
11.
    Dr. Robin Herbert, a director of WTC medical monitoring at Mount 
Sinai Hospital, said some of the nearly 16,000 responders screened to 
date are getting cancer.
    ``We do not know at this point if they are WTC-related, but some 
are unusual cancers we see as red flags,'' Herbert said.
    Dr. Iris Udasin, principal investigator for the Mount Sinai 
screening of 500 in New Jersey, said she's following four cancers and a 
possible pre-cancer. The 9/11 link is ``certainly a possibility,'' she 
said. ``It's what we worry about, and what we fear.'' Dr. Ben Luft, 
chief of Mount Sinai monitoring at Stony Brook University, said his 
cases include a young non-smoker with throat cancer, and one with a 
pre-cancerous lesion.
    ``We're concerned about people coming in with problems, and they 
just don't have any risk factors at all,'' Luft said.
    While tumors normally take 10 to 20 years to develop, Worby 
contends the asbestos, PCBs, and other cancer-causing chemicals in the 
WTC rubble created unprecedented dangers. ``People are getting sicker 
faster,'' he said.
Grim numbers
     50,000 WTC rescue and recovery workers
     8,000 plaintiffs in classaction lawsuit
     283 reported cancer cases
     33 cancer deaths
     100 NYPD cancer patients
     45 FDNY cancer patients
                                 ______
                                 
    Mr. Owens. I look forward to hearing the testimony of Mr. 
Foulke and the other witnesses.
    Thank you.
    Chairman Norwood. Thank you, Mr. Owens.
    I see we are honored to have Chairman McKeon here. Mr. 
Chairman, would you care to have some time? Thank you for being 
here with us.
    We have two panels of distinguished witnesses today, and I 
am eager to hear their testimony. I would like to begin by 
introducing our first witness. The Honorable Edwin Foulke is 
the assistant secretary of occupational safety and health at 
the Department of Labor. Mr. Foulke was sworn in as OSHA's 
administrator in April 2006. He has been with us just a short 
time.
    Mr. Foulke has previously served on the Occupational Safety 
and Health Review Commission, most recently serving as its 
chairman from 1990 to 1994. Prior to joining OSHA, Mr. Foulke 
was a partner with the law firm of Jackson Lewis, LLP, in 
Greenville, South Carolina, and Washington, D.C., where he 
chaired the firm's OSHA practice group. Mr. Foulke holds a law 
degree from Loyola University and a master of law degree from 
Georgetown University Law School.
    I would like to remind members that we will be asking 
questions of the witnesses after the testimony. In addition, 
committee rule two imposes a 5-minute limit on questions.
    Mr. Secretary, you are now recognized.

  STATEMENT OF HON. EDWIN FOULKE, JR., ASSISTANT SECRETARY OF 
  LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. 
                      DEPARTMENT OF LABOR

    Mr. Foulke. Thank you, Mr. Chairman and members of the 
subcommittee. I would first like to request that a copy of my 
full testimony be entered into the record.
    Chairman Norwood. So ordered.
    Mr. Foulke. Thank you.
    Thank you for the opportunity to appear before you today. I 
have enjoyed meeting with you last month, Mr. Chairman, and 
welcome this further opportunity to continue the dialog 
exploring ways to improve the process in which the Occupational 
Safety and Health Administration considers the use of standards 
set by outside organizations when it promulgates its rules and 
regulations.
    I am aware that you have had a long-term interest in this 
issue, and I appreciate the work that you are doing. I want you 
to know that I share your goals of providing parties affected 
by standards and regulations the opportunity of meaningful 
input, avoiding conflicts of interest by those writing the 
rules, and ensuring the quality of the information that OSHA 
requires manufacturers and employers to disseminate.
    You may rest assured that we are interested in finding ways 
to incorporate the same transparency into the process for 
determining what information must be included in MSDS's and 
ensuring that process allows for diverse views to be 
considered. OSHA shares your interest in encouraging wide 
public participation from all interested parties in the 
rulemaking process.
    OSHA also offers small businesses a unique opportunity to 
provide meaningful input through the small business regulatory 
review panels, as mandated by Congress. OSHA regularly convenes 
these panels for major rulemakings, which allows affected small 
businesses to offer input and make recommendations on 
regulatory alternatives early in the rulemaking process.
    OSHA also is beginning a peer review of the risk assessment 
and health effects analysis developed for silica rulemaking in 
accordance with the requirements of OMB's information and 
quality bulletin for peer review. This peer review process will 
provide the public an additional comment opportunity, including 
a public meeting, before a proposed rule is published.
    I acknowledge your concern regarding the use of TLVs in 
OSHA's hazard communications standard, and I have asked my 
staff to examine options to address the issues you have raised 
in addition to ways to increase the effectiveness and utility 
of the standard. Mr. Chairman, I assure you that on this issue 
and other issues, I favor a transparent process that is based 
on sound science.
    In addition, I fully intend to work with you as we address 
this issue. OSHA supports your efforts to seek diverse views on 
information utilizing the rulemaking process, including those 
of other appropriate Federal agencies as expressed in subpart 
two and three of the newly proposed section 6(a) of H.R. 5554.
    The bill, however, could have the result of prohibiting 
OSHA from using many important sources of information, 
including standards, findings, reports, papers, treatises and 
recommendations issued by industry, trade or employee 
representative groups and academic institution when drafting 
rules and issuing voluntary guidance documents.
    Specifically, section 2(a) of the proposed bill would 
prohibit the secretary of labor from promulgating any findings, 
guidelines, standards, limits, rules or regulations based on 
the determination reached by any organization unless the 
secretary finds the organization that issued the determination 
is a national consensus organization.
    In developing guidelines and rules, however, OSHA regularly 
relies on determinations made by a variety of organizations, 
including industry and labor organizations, private 
professional associations, academic institutions, and 
scientific research groups.
    For example, supposedly a study about a safety health issue 
was conducted by a group of researchers at a university, maybe 
from the fine University of Georgia, and the results, which 
contained one or more scientific determinations, were published 
in the Peer Review Journal.
    Even if the study determinations were submitted to OSHA as 
part of a formal notice and rulemaking comment process, this 
bill most likely would prohibit OSHA from relying on that 
information in promulgating that standard.
    In conclusion, I would like to reiterate that I share your 
view on the importance of transparency in the regulatory 
process. I strongly believe that the notice and comment 
rulemaking process OSHA utilizes is a model of openness and it 
includes full public participation.
    I also share your goal of ensuring the quality of 
information that OSHA requires manufacturers and employers to 
disseminate, and pledge to work diligently to explore options 
to bring the same transparency to bear on the process by which 
OSHA determines on what hazard information must be transmitted 
to employers and to the American workers.
    I appreciate the work that you have done over the many 
years on this subject, and I look forward to working with you 
in the future on this issue and on other safety and health 
issues. I will be happy to answer any questions that the 
committee has.
    [The prepared statement of Mr. Foulke follows:]

  Prepared Statement of Edwin G. Foulke, Jr., Assistant Secretary of 
                Labor for Occupational Safety and Health

    Mr. Chairman, Members of the Subcommittee: Thank you for the 
opportunity to appear before you today. I enjoyed meeting with you last 
month, Mr. Chairman, and welcome this further opportunity to continue a 
dialog exploring ways to improve the process by which the Occupational 
Safety and Health Administration (OSHA) considers the use of standards 
set by outside organizations when promulgating guidance or rules. In 
particular, I would like to discuss OSHA's method for determining which 
information is required to be included in its material safety data 
sheets (MSDSs), and your interest in making the development of safety 
and health recommendations more transparent.
    I am aware that you have had a long-term interest in this issue and 
I appreciate the work you are doing. I want you to know that I share 
your goals of providing parties affected by standards and regulations 
the opportunity for meaningful input, avoiding conflicts of interest by 
those writing the rules, and ensuring the quality of information that 
OSHA requires manufacturers and employers to disseminate. Before 
addressing the legislation you recently introduced, the Workplace 
Safety and Health Transparency Act (H.R. 5554), I want to outline the 
already transparent rulemaking process that OSHA currently employs. You 
may rest assured that we are interested in finding ways to incorporate 
that same transparency into the process for determining what 
information must be included in MSDSs and ensuring that the process 
allows for diverse views to be considered.
OSHA has a transparent rulemaking process that seeks diverse views 
        through a variety of means
    OSHA shares your interest in encouraging wide public participation 
from all interested parties in its rulemaking process. OSHA seeks 
meaningful input through a variety of means, including written and 
electronic comments, public hearings--when requested--that allow 
participants the opportunity to present information and question other 
participants on the record, and an open public rulemaking record. Any 
final regulation or standard that OSHA issues at the conclusion of 
these processes has to be based on substantial evidence in the record. 
Additionally, the Agency publishes final regulations in the Federal 
Register with an explanation of its requirements.
    OSHA also offers small business a unique opportunity to provide 
meaningful input through Small Business Regulatory Review Panels, as 
mandated by Congress. OSHA regularly convenes these Panels for its 
major rulemakings, which allow affected small businesses to offer input 
and make recommendations on regulatory alternatives early in the 
rulemaking process. The Panels conclude with a report on the 
suggestions offered by the small-entity representatives, which is 
submitted to the official rulemaking record on which regulations must 
be based.
    OSHA is also beginning a peer review of the risk assessment and 
health effects analyses developed for the silica rulemaking in 
accordance with the requirements of OMB's Information Quality Bulletin 
for Peer Review. The peer review process will provide the public with 
an additional comment opportunity, including a public meeting, before a 
proposed rule is published. OSHA seeks input through a variety of means 
and sources to produce the most effective standards, from both a health 
and safety and feasibility perspective.
    I would also like to point out the great strides OSHA has taken to 
implement a public-friendly rulemaking docket system, so that the 
public can access important information from the Web and also submit 
their own comments 24 hours a day. In addition to the resources on the 
Web, OSHA also provides docket office staff to aid the public in their 
search of the docket system.

OSHA relies upon numerous sources of data to promulgate the most 
        effective standards and guidance possible
    After 35 years of serving the public, OSHA recognizes the 
unquestioned importance of data, research, and all forms of information 
to support its congressionally mandated mission ``to assure safe and 
healthful working conditions for working men and women.'' OSHA seeks 
data, used in its broadest meaning, from all sources, including 
governmental organizations, academic institutions, associations, 
employers, and individuals. Accurate information serves as the 
foundation for the development and issuance of effective occupational 
safety and health standards and guidance materials. In addition, when 
promulgating health standards, OSHA is required under the OSH Act to 
consider the best and latest available scientific data.
    Since my arrival at the Agency a little over two months ago, Mr. 
Chairman, I have come to understand that one source of safety and 
health information is of particular interest to you--the American 
Conference of Government Industrial Hygienists' (ACGIH) Threshold Limit 
Values (TLVs). I believe you are particularly interested in the way 
that TLVs are used in OSHA's Hazard Communication Standard (HCS).

OSHA's Hazard Communication Standard and its use of ACGIH's TLVs
    As you know, OSHA's Hazard Communication Standard (29 C.F.R. Sec. 
1910.1200) sets forth a comprehensive system for the evaluation of 
chemical hazards and the transmission of information about those 
hazards to employers and employees. Its intent is two-fold: to give 
employers, in one document, the information they need to provide 
appropriate protections to their employees; and to provide workers with 
information about the identities and hazards of the chemicals in their 
workplaces. The provisions referring to the TLVs govern hazard 
determination and material safety data sheets (MSDSs). Briefly, the 
Standard requires chemical manufacturers and importers to evaluate the 
scientific evidence relating to the hazards of each chemical they 
manufacture or import. If sufficient scientific evidence exists to 
establish that the chemical is a hazard under the Standard, the 
manufacturer or importer must, among other things, prepare an MSDS 
containing information about the chemical and its hazards, and provide 
the MSDS to employers who purchase the chemical. Employers use the 
MSDSs in designing their own hazard communications programs to ensure 
that employees receive information about the chemical hazards to which 
they are exposed, as well as in developing ways to protect their 
employees from such hazards. The Hazard Communication Standard, 
however, does not establish exposures limits, nor are any limits 
enforced by the Agency as a result of the standard.
    A chemical is a health hazard by definition under the Hazard 
Communication Standard if there is ``statistically significant evidence 
based on at least one study conducted in accordance with established 
scientific principles that acute or chronic health effects may occur in 
exposed employees.'' The Standard as currently written states that the 
existence of an OSHA Permissible Exposure Limit (PEL) or an ACGIH TLV 
for a chemical establishes that the chemical is ``hazardous.'' A 
determination that a chemical is hazardous triggers the other 
provisions of the Standard, including labels, MSDSs, and provision of 
information to employees. In addition, an MSDS must list any TLV, as 
well as any OSHA PEL ``and any other exposure limit used or recommended 
by the chemical manufacturer, importer, or employer preparing the 
[MSDS].'' Nothing in the regulation requires employers to comply with 
the exposure levels noted in the MSDS. OSHA believes it more efficient 
to have the preparer of the MSDS provide complete information about the 
chemical and precautionary measures than to have to independently 
research and seek out disparate sources of information to determine how 
to manage exposures appropriately.
    In response to several issues raised in your past letters, I assure 
you that OSHA does not enforce TLVs developed by ACGIH under the 
General Duty Clause of the OSH Act or under any individual standard 
that provides generally worded safety and health mandates. In January 
2003, the Agency issued a memorandum clarifying that occupational 
exposure recommendations such as ACGIH's TLVs are not to be treated as 
OSHA-mandated Permissible Exposure Limits for enforcement purposes. 
TLVs and other non-mandatory exposure recommendations are not to be 
enforced, in and of themselves, by government action. We are reviewing 
options to take further steps in this regard including the possibility 
of reissuing the 2003 memorandum.

OSHA is working to address congressional concerns
    I acknowledge your concerns regarding the use of ACGIH TLVs in the 
Hazard Communication Standard and have asked my staff to examine 
options to address the issues you have raised, in addition to ways to 
increase the effectiveness and utility of the Standard. For instance, 
we are examining whether it is appropriate to accord any specific 
organizations, such as ACGIH, a preeminent position in the hazard 
determination provisions of the Standard. We are also evaluating ways 
to ensure that information that is required to be included in MSDSs is 
developed through a transparent process that allows for the 
consideration of diverse views and ensures the quality of the 
information produced. Mr. Chairman, I assure you that on this issue and 
other issues, I favor a transparent process that is based on sound 
science. Additionally, I fully intend to work with you as we address 
this issue.

OSHA's comments on H.R. 5554
    OSHA supports your efforts to seek diverse views on the information 
utilized in the rulemaking process, including those of other 
appropriate federal agencies, as expressed in Subparts 2 and 3 of the 
newly proposed Section 6A(a) included in Section 2(a) of H.R. 5554. The 
bill, however, could have the result of prohibiting OSHA from using 
many important sources of information--including standards, findings, 
reports, papers, treaties and recommendations, issued by industry, 
trade, or employee representative groups, and academic institutions--
when drafting rules and issuing voluntary guidance documents. 
Specifically, section 2(a) of the proposed bill would prohibit the 
Secretary of Labor from promulgating ``any finding, guideline, 
standard, limit, rule, or regulation based on a determination reached 
by any organization,'' unless the Secretary finds that the organization 
that issued the determination is a national consensus organization. In 
developing guidelines and rules, however, OSHA regularly relies on 
determinations made by a variety of organizations, including industry 
and labor organizations, private professional associations, academic 
institutions, and scientific research groups.
    In addition, as I previously mentioned, under the OSH Act, OSHA is 
required to consider the best and latest available scientific data when 
promulgating health standards. Limiting OSHA's consideration of 
information to only consensus group material would inhibit the agency's 
consideration of meaningful and relevant information from stakeholders, 
experts, and informed parties that contributes to informed rulemaking. 
Scientific studies, manufacturers' guidelines, and trade association 
best practices are all important sources of information for OSHA--
information we use to improve employee safety and health. Critically 
important and useful information would be unusable to OSHA if the bill 
was passed in its present form.
    For example, suppose a study about a safety or health issue was 
conducted by a group of researchers at a university, such as the 
University of Georgia, and the results, which contained one or more 
scientific determinations, were published in a peer-reviewed journal. 
Even if the study's determinations were submitted to OSHA as part of a 
formal notice-and-comment rulemaking process, this bill would likely 
prohibit OSHA from relying on that information in promulgating a 
standard. The bill's provisions might also jeopardize the collaborative 
efforts of OSHA's successful cooperative programs, such as Alliances, 
where employers and OSHA work together to produce industry-specific 
guidance and compliance assistance materials.
    Another Subpart of Section 2(a) of the proposed bill would add 
additional requirements for ``rulemaking proceedings initiated by the 
Secretary of Labor but not finalized prior to enactment of this 
section.'' This section requires the Secretary to ``investigate and 
identify the use of, influence of or reliance upon'' findings or 
recommendations by organizations that do not operate on a consensus 
basis. Under this legislation, the Secretary would have to publish the 
results of the investigation in the Federal Register and not 
incorporate or rely on non-consensus based organization findings or 
recommendations produced by such an organization in publishing any 
final standard or official recommendation.
    This section seems to raise all of the same concerns as Section 
2(a), potentially prohibiting OSHA from utilizing useful information 
available to it, but applies those limitations to all of OSHA's ongoing 
rulemakings as well. To operate effectively to protect the safety and 
health of employees, OSHA needs to be able to consider all sources of 
information in the early stages of rulemaking. Since the rulemaking 
process is intended to attract recommendations and submissions of 
information from a variety of organizations, parties, and stakeholders, 
excluding the work of all non-consensus organizations would be 
inconsistent with established administrative law practices and would 
greatly diminish the information that OSHA is able to use. It would 
also curtail the Agency's ability to hear and consider as wide a 
variety of viewpoints as possible.
    The bill's requirement to investigate the influence of and reliance 
on information provided to OSHA by non-consensus organizations and to 
publish a report in the Federal Register explaining the findings of the 
investigation before it can issue final rules also raises concerns for 
OSHA. Such an investigation would needlessly consume the Agency's 
precious resources and substantially delay the issuance of important 
rules, but would yield little information of value since OSHA is 
already required to explain the nature of the information that it 
relies on at the time the final standard is published. In most cases, 
the final rule must also be defended in court based on the record as a 
whole. With all of these checks already in place, it is not clear what 
purposes would be served by such a costly and time-intensive 
investigation.
    Finally, the section that deals with the approval of State Plans 
could very well create tensions between federal OSHA and states wishing 
to adopt an occupational safety and health program. It would forbid the 
agency from approving any new state plans unless OSHA determines that 
any outside standards adopted by the plan were promulgated by a 
nationally recognized standards-producing organization under procedures 
wherein it can be determined that persons interested and affected by 
the rule reached substantial agreement on adoption. This provision 
establishes a criterion that varies from the criterion in section 18(c) 
of the OSH Act, which directs OSHA to approve state plans that have 
standards that are or will be ``as least as effective as'' the federal 
rules. New state plans could be precluded from adopting some of the 
same protective regulations that OSHA adopted at its inception in 1971, 
because some of the rules were likely based upon information produced 
by non-federal entities that may not have been substantially agreed 
upon at the time by all affected parties. Although not clear, 
presumably this Section would also apply to the adoption of future 
standards by the 26 currently approved State Plans. The provision may 
limit the States' ability to adopt federal standards by reference. 
Certainly, this provision could preclude a State Plan from adopting a 
more protective regulatory regime than federal law or standards--
something the OSH Act clearly contemplated permitting the states to do.

Conclusion
    In conclusion, I would like to reiterate that I share your views on 
the importance of transparency in the regulatory process. I strongly 
believe that the notice and comment rulemaking process OSHA utilizes is 
a model of openness that includes full public participation. I also 
share your goal of ensuring the quality of information that OSHA 
requires manufacturers and employers to disseminate, and pledge to work 
diligently to explore options to bring that same transparency to bear 
on the process by which OSHA determines what hazard information must be 
transmitted to employers and to America's workers. I appreciate the 
work you have done over many years on this subject and look forward to 
working with you in the future on this and other safety and health 
issues.
    I will be happy to answer any questions that you may have.
                                 ______
                                 
    Chairman Norwood. Thank you very much, Mr. Secretary.
    I will yield myself 5 minutes for questioning to start 
with.
    I am not sure I agree right off the bat with your premise 
that under the legislation that we are discussing today, OSHA 
would be unable to rely on established best practices or 
academic studies. Wouldn't these be referred to in any proposed 
regulation such that stakeholders could provide feedback on 
these during the comment period? That is the whole purpose, 
really, of all of this.
    If that is not the case, as you folks are suggesting, do 
you have a suggestion on how to modify the proposed legislative 
language to allow OSHA to promulgate a regulation using best 
practices and academic studies, and ensure interested parties 
can still review the information and comment on it during the 
regulatory process?
    Mr. Foulke. Mr. Chairman, I believe that our rulemaking 
process allows all parties to comment on information that is 
provided as a general rule during the rulemaking process. Also, 
the Congress has set forth a number of different procedures 
that we must follow.
    The act itself actually has standard-making procedures that 
we need to follow, but also the Administrative Procedures Act, 
the requirements that Congress added on with SBRPA, all those 
things I think were intended, and I think rightly so, by 
Congress to try to make the process transparent and make sure 
that all views are heard and made part of the determination, 
and considered in the determination to making a rule or 
standard.
    Chairman Norwood. Well, thank you. I think you have it 
exactly right. How does that work when you incorporate a rule 
into the process? How does anybody have anything to say about 
that? How does anybody have any input into that, that was 
established in the middle of the night in secrecy?
    Mr. Foulke. I understand the concern you have. I would say 
with respect to the TLVs particularly, first of all we as an 
agency do not cite employers for TLVs. We have actually 
promulgated a memorandum to the regional administrators to put 
out to all our area offices and all the investigators that a 
violation of a TLV would not be the basis of a citation.
    Chairman Norwood. With all due respect, Mr. Secretary, that 
is not the problem. There are lawyers right here in this room 
who use that every time to sue somebody. That is the problem. 
When you incorporate by reference, nobody gets any input; 
nobody gets to say anything. All of a sudden now that is in 
effect the law of the land. You may not fine anybody, but 
believe you me, there are people on the next panel who will 
take them to court.
    Mr. Foulke. I understand, Mr. Chairman, because I know we 
have a number of lawsuits that we have been involved with on 
this specific issue. I guess our position, OSHA's position has 
always been that we included the TLVs in the hazard 
communication standards strictly for informational purposes 
only, and that there is no requirement that any employer meet 
those TLV requirements.
    Chairman Norwood. If, Mr. Secretary, you are concerned that 
this legislation actually does what you say it will do, I 
strongly recommend you make some suggestions on change, or 
otherwise we are going to go forward with this legislation.
    Mr. Foulke. As I mentioned in my opening statement, I am 
here to work with you, Mr. Chairman. I also mentioned the fact 
that we are looking at options at the Department of Labor, at 
OSHA, on how we can address this issue internally.
    Chairman Norwood. Senator Enzi has in his health committee 
come up with some similar language addressing this problem, 
too. So it is sort of a concern on both sides of the House. 
Have you folks looked at his language, and do you have any 
thoughts about that one way or the other, the Senate language 
versus our language?
    Mr. Foulke. To be truthful, Mr. Chairman, I have not seen 
that language.
    Chairman Norwood. I see my time is about up, but I really 
would appreciate it if you all would look at that and take a 
position----
    Mr. Foulke. OK.
    Chairman Norwood [continuing]. On Senator Enzi's approach 
in trying to correct this problem. Everybody knows the problem 
is when you incorporate by reference, it doesn't have any 
sunshine on it. It is as simple as that, and that has got to 
stop.
    I see my time is up. I would like to recognize Major Owens 
now for questioning.
    Mr. Owens. Thank you, Mr. Chairman.
    Mr. Secretary, we welcome your fresh insights and your 
energy. I was wondering if you will be able to deal with the 
fact that certain standards have been killed by OSHA and 
certain other standards have been withdrawn, and certain 
standards have been delayed.
    I would like to submit for the record that standards that 
have been killed, withdrawn or delayed.* Have you addressed 
some commentary? We get no commentary at all from OSHA as to 
the why, when, or what.
---------------------------------------------------------------------------
    *Submitted and placed in permanent archive file, ``Bush Record at 
OSHA: Undermining Workplace Safety and Health.'' (Submitted for the 
record by Mr. Owens).
---------------------------------------------------------------------------
    There is one, ergonomics, which the administration and the 
Congress combined to wipe out shortly after the president was 
inaugurated. Ergonomics is like pornography, so you don't have 
to address that one, but the rest of them.
    Mr. Foulke. Thank you, Congressman. I appreciate that.
    [Laughter.]
    Mr. Owens. The rest of them maybe you can address. Are you 
agreeing with the chairman, who says that in America, which is 
unique for the role it allows nongovernmental organizations to 
have, we have numerous nongovernmental organizations that 
assume great responsibilities for accrediting institutions. The 
motion pictures that our kids see are rated by some group that 
is not governmental. I don't know, I think I can name many.
    Are you agreeing that organizations with expertise should 
not be utilized in situations where there is a vacuum? We could 
keep fiddling forever and allow people to die while expertise 
exists which tells us that if they follow a certain course and 
don't protect themselves properly, they will surely die.
    I just wondered, are we saying that those organizations 
have to be characterized, as the chairman characterized them a 
minute ago, as organizations operating in the dead of night? Is 
there something diabolical about expertise that can be used to 
save lives?
    Mr. Foulke. Well, Congressman, I would say that we do favor 
as much transparency, and I think that is what our government 
has been founded on, and I think the particular rulemaking 
procedures that we have to go through in promulgating a 
standard were put there through Congress in order to be able to 
achieve the goal of making sure that as many diverse types of 
views could be heard in formulating the rule.
    I mean, that is the purpose of rulemaking, I believe, is to 
get as much information from as many diverse sources as 
possible in order that we may, OSHA or any agency of the 
government, will come out and have the best standard possible 
to, in our particular case, protect the safety and health of 
the working man and woman.
    Mr. Owens. So you would agree that these organizations have 
not operated in secrecy. They just have not had the formal 
process that the government goes through in terms of 
rulemaking?
    Mr. Foulke. I am not overly familiar with respect to the 
ACGIH's procedures, though I understand that with respect to 
outside groups having input and information into the process, 
that is not normally the case. Also, ACGIH admits that it is 
not a consensus standard organization. They are not making 
consensus standards.
    They are basically reviewing the information and coming up 
with what they call the threshold limit values, TLVs. But they 
say that this is not a consensus standard. They are not a 
consensus standard organization. I think that is the question 
that the issue is how much weight, what type of weight should 
they be entitled to when we are promulgating a standard and 
reviewing the whole process.
    The idea really is that we want to make sure that we have 
as much diverse information as possible, and then for us under 
the rulemaking procedures, we have to review that. We have to 
do the analysis, the feasibility analysis, the technical and 
economic feasibility on those issues in order to be able to 
determine what is the best standard to come out.
    Mr. Owens. Mr. Secretary, the casualty toll at the World 
Trade at 9/11 is around 3,000 people who were immediately 
killed and incinerated on that day. However, we have a 
burgeoning situation taking place now where thousands of 
workers who worked on that site, including policemen and 
firemen, are now being afflicted with certain ailments which 
trace back to their work on that site. I mentioned in my 
opening statement some cases of cancer that have been clearly 
documented and related to their work on that site.
    There are some other cases that have happened that are in 
dispute. A certain policeman, 40-year-old policeman, died of a 
heart attack suddenly. The autopsy showed that in his lungs, 
there was the stew of 9/11, asbestos and glass and a whole 
mixture of dust that was unprecedented as a result of high 
temperatures for new kinds of material used in buildings, that 
occurred that day.
    Now, OSHA sort of, and I can't find the document which says 
it in writing, but said that they were not enforcing rules in 
the rescue operations at 9/11. Now, be that as it may, I am not 
going to question that judgment in view of the fact that it was 
unprecedented, but at this point, will there be some kind of 
review of the situation by OSHA?
    Informally, I know from talking to some of your employees, 
there is protective gear that should have been worn that day 
that would have protected them, the rescue workers, from all of 
that stew. But officially, are we going to ignore the situation 
that is evolving in terms of large numbers of workers who are 
becoming ill? The first reaction of New York City government is 
no; it didn't cause it. Any government, any corporation would 
react by saying no. You prove that it happened. Eventually, it 
is going to be proven, it seems to me.
    Are the lives of the people who are dying as a result of 
their participation in the rescue any less sacred than the 
lives of people who died on that day? Our government made the 
great attempt to try to compensate the families of the people 
who died on that day. More than $1 billion was appropriated and 
utilized to compensate families with all kinds of formulas.
    Are we going to just ignore the fact that those heroes who 
helped with the rescue and survived, but are now dying, should 
not have any help from the government, or any official review 
by your agency to determine what is the likelihood that there 
is some truth in the statement that their illnesses are caused 
by exposure on that day?
    Mr. Foulke. Well, Congressman, I will say this, that in 
every talk that I give, one of the points I always make is that 
one workplace fatality is one too many. Under my watch and I 
think under all the previous assistant secretary watches, we 
have been very much committed to protecting worker safety and 
health.
    What I would say is we have had post-9/11 reviews. We have 
done post-Katrina reviews where we try to make the process 
better than what it was before. Whenever you deal with a 
tragedy on that scope, we try to also always improve.
    Mr. Owens. You are having post-9/11 reviews? Or you have 
had them already?
    Mr. Foulke. I think the White House had a whole series of 
them that we were a part of. Also, I would say that we were 
actively involved at the 9/11 site. We have onsite, our 
regional administrator was there and actually had their office 
there.
    Unfortunately, our Manhattan office was in the north World 
Trade Tower, so we are very much familiar with the whole 
incident. I was up there last week and actually met with the 
Manhattan office and talked about it. But they were there full-
time, 24 hours, 7 days a week, trying to protect the safety and 
health of the workers that were working at the Ground Zero.
    One thing I would say is, we are proud of the fact that 
there were no workplace fatalities at the time during the 
cleanup. On a site that large, it would never have been under a 
normal situation would we have expected that.
    Mr. Owens. Thank you.
    Mr. Chairman, I assume I will be able to submit additional 
questions to Mr. Foulke in the record?
    Chairman Norwood. You can go ahead now if you want to.
    Mr. Owens. No, I will just submit them.
    Chairman Norwood. Of course you can submit it for the 
record.
    Mr. Owens. I have additional questions, and I also have 
some groups that would like to also submit statements for the 
record. And it will be open?
    Chairman Norwood. Yes.
    Mr. Owens. Thank you.
    Chairman Norwood. It will be.
    Mr. Secretary, your testimony states that--and, Mr. Kline, 
you are to be recognized. Do you decline?
    Mr. Kline. I decline.
    Chairman Norwood. Your testimony states that a permissible 
exposure limit, what all of us refer to as PELs, the threshold 
limit values, TLVs, can determine if a chemical is hazardous. I 
don't misread that, do I?
    Mr. Foulke. I am sorry, Congressman?
    Chairman Norwood. Your testimony is implying that PELs or 
TLVs can in and of itself determine if a chemical is hazardous. 
I don't misread that in your testimony, do I?
    Mr. Foulke. Yes, the hazard communications standard 
basically states that if there has been one scientific study 
that indicates that a chemical is hazardous, that that would 
make the chemical be considered hazardous and thus included 
under the standard.
    Chairman Norwood. We have had other hearings on other days 
in this committee where other witnesses have pointed out that 
the scientific validity of the TLVs are questionable. Now, I am 
not sure I know who is right or wrong, and I am certainly not 
taking a point of view either way, but it does worry me when 
other people make that point of view.
    What safeguards, therefore, do you have at OSHA that are in 
place to make sure that these TLVs are valid? How do we know 
this?
    Mr. Foulke. Mr. Chairman, with respect to the standard, the 
standard when it was promulgated back in the early 1980's, or 
mid-1980's, I guess it was, included as part of the 
requirements for the information to be included on the material 
safety data sheets that it would be the OSHA PEL, the TLVs, and 
any other additional information that the manufacturer of the 
chemical or the importer of the chemical thought was 
appropriate.
    And basically, the information data of the TLVs and any 
additional information really clearly was intended to be for 
informational purposes only. We are not stating, and the fact 
that we don't require any enforcement of the TLV, so I can't 
say that we have ever done anything with respect to reviewing 
the process of it. I was not there when the standard was 
promulgated that included that. I am assuming that some of that 
issue was looked at at that particular time.
    Chairman Norwood. You, however, have been in a law firm and 
when you issue these TLVs, what basically happens out in the 
real world? What happens to businesses or companies or anybody 
who is dealing with a particular chemical?
    Mr. Foulke. I can just give you my personal experience.
    Chairman Norwood. That would be good.
    Mr. Foulke. Because I dealt a great deal with the hazard 
communications standard, because it is one of OSHA's more 
frequently cited standards. To tell you the truth, when I would 
come into a situation where OSHA was investigating 
overexposure, my main concern, when I reviewed the material 
safety data sheets, was to actually just look at what PELs were 
there.
    I knew that under my requirements for my clients, they 
would have to be in compliance with the PELs. So I would say, I 
would ask them, let me see your material safety data sheets. I 
would look at the PELs, and then I would request them, and say 
what is the exposure level; have you done air monitoring on 
those particular chemicals that had PELs.
    TLVs, to tell you, it was not something that I personally 
had to look at because I knew from my client's standpoint, my 
liability for my client was at the PEL level.
    Chairman Norwood. And in conclusion, let me just again 
reiterate what this is all about. You have a job. We have a 
job. We are trying to make sure that our workplaces are healthy 
and safe as they possibly can be. I know how seriously you take 
that, and I do, too.
    There are also other considerations here. What this 
specific hearing and this specific legislation is about is the 
fact that you are omnipotent when you issue rules and 
regulations. They affect the world. They affect the country. 
When you issue them, it is only right and fair.
    We have many, many laws on the books. This is just a few of 
them: the Native Quality Act, Small Business Regulatory 
Enforcement Act, Regulatory Flexibility Act. These laws are 
there for the simple purpose of when the Federal Government 
regulates, it has to do so in an open atmosphere and fairly so 
that all sides, when you are going to do it to somebody, at 
least they have the opportunity to defend themselves.
    Mr. Foulke. I think that is the strength of our country.
    Chairman Norwood. It is the strength of our country, and it 
is the weakness of incorporating rules by reference, 
particularly when you incorporate rules by reference. This 
thing is very interesting to me in that the people who work for 
you during the day are the same people who are writing these 
rules, or at least reviewing the literature.
    From what we have been told, they take about 7 minutes 
coming to a conclusion once they review the literature. When 
they do that at night, off-campus so to speak, and then go back 
to work the next day and then sit around and make a 
recommendation, we really ought to accept this rule by 
reference, and put it in there and go ahead, because that is 
the easy way. That is the fast way.
    You know, nobody knows what they reviewed, what their 
biases may or may not be. Nobody knows if it has been fair. 
Nobody knows if they have reviewed scientific material that is 
accurate. Nobody knows, including you, actually.
    Mr. Owens implied, well, they aren't secretive. Well, of 
course they are secretive. They won't tell you what they have 
done, what they reviewed, what any of it is about. You can't go 
to the meeting. You can't have any input into what they are 
doing. It is totally secretive.
    These are government employees who can't do it legally on 
their day job, and they are doing it illegally at night. And it 
is affecting people. Now, having said that, I want us to have 
good TLVs, good PELs, too. I am most anxious in updating our 
PELs, but it has to be done in the right way.
    What can you do to help me?
    Mr. Foulke. Well, as I mentioned to you in my testimony, 
Mr. Chairman, I have asked my staff to look at different 
options that we can look at. One of the things we are also 
looking potentially to do is to make sure about reviewing the 
documents we have sent out with respect to participation in 
outside nongovernmental organizations, and also making sure or 
reaffirming the fact that we are not enforcing TLVs; that they 
are strictly for informational purposes; and that any type of 
citation would be based on an actual violation.
    So we are moving that, and I am hoping, like I say, that we 
will have some additional options that I am going to be able to 
move forward from a regulatory prospect or a nonregulatory 
prospect. I am not sure yet, but we are going to move forward 
and address the issue that you have clearly identified.
    Chairman Norwood. Can't the secretary of labor simply say 
we are going to stop doing this because it is not right, 
without us having to pass legislation?
    Mr. Foulke. I would hope that what we are working on, the 
options, are something that once we complete them and decide 
how we are going to move forward with whatever options, and 
maybe discuss them with you, you might see that once they are 
implemented that there may be no need for regulation.
    Chairman Norwood. I would be happy to, no need for the new 
law.
    Mr. Foulke. The new law, right.
    Chairman Norwood. Yes. I would be happy to work with you, 
and want to work with you on that. It is going to be a matter 
of who gets there first.
    [Laughter.]
    Mr. Foulke. I know you are a hard-charging person, but then 
again I am right behind you.
    Chairman Norwood. Well, I am counting on you. I actually 
hope you win, but I will tell you right now, we are not going 
to slow down. I can tell you that.
    Mr. Owens, would you care to have anything else?
    Mr. Owens. Thank you, Mr. Chairman.
    I just wanted to briefly comment that we will be happy to 
work with you, Mr. Foulke. We understand the chairman is hard 
on lawyers.
    [Laughter.]
    Chairman Norwood. You are hard on dentists. So what?
    [Laughter.]
    Mr. Kucinich, would you like to be recognized? You are 
recognized for 5 minutes.
    Mr. Kucinich. Thank you, Mr. Chairman.
    Mr. Foulke, what is a reasonable amount of time for all 
workplaces in a state to be inspected?
    Mr. Foulke. What is a reasonable time? All workplaces in 
the country or just in a state?
    I don't know if I really have an answer for that. I mean, 
clearly what we have tried to do at OSHA is set up a priority 
system to identify those employers that have the highest injury 
and illness rates, those that we consider to be the most 
dangerous operations that have potentials for injuries, 
illnesses and fatalities.
    So we actually, we are very focused on that thing. As a 
time period, I don't believe I could give you an answer on 
that.
    Mr. Kucinich. Based on OSHA records, my home state of Ohio 
is assigned 60 OSHA inspectors. With these 60 inspectors, it 
would take approximately 97 years to inspect each workplace 
once. Is it acceptable to have insufficient number of 
inspectors to inspect every workplace in a reasonable amount of 
time?
    Mr. Foulke. Well, I guess I would say, Congressman, there 
are a lot of employers that have very safe worksites that 
probably don't need inspection. What we have tried to do----
    Mr. Kucinich. How would you know if you never looked?
    Mr. Foulke. Well, how we do it is we do get data on the 
particular worksites. As I indicated previously, the fact that 
we are focused in on, we have what we call site-specific 
targeting for our inspections. We go after the employers that 
have the worst injury and illness rates.
    We also have an enhanced enforcement program where we find 
that where employers who have not been inspected previously, 
that have not seemed to have improved like they should, we 
actually expand the inspection to their other facilities around 
the country.
    So we have a very targeted program. Our program I think has 
yielded very significant results. We have been able to reduce 
workplace fatalities from 1971 to the present by 60 percent, 
and we have reduced injuries and illnesses since 1971 by 40 
percent. At the same time, the workplace has doubled.
    Mr. Kucinich. Thank you.
    I am going to ask you some questions, and I appreciate your 
answers, but I am going to ask you to be a little bit more 
efficient so I can get my questions in.
    It is interesting to see you assert basically that you have 
enough inspectors based on reporting, but I think it is 
important, Mr. Chairman and Mr. Owens, to look at the 
relationship between the number of inspectors you have and the 
number of OSHA safety regulations that have been withdrawn by 
the administration, because if you have safety regulations that 
are withdrawn, you are not looking that way.
    So it is possible, for example, that in metalworking, in 
oil and gas well drilling, in occupational risk in the 
manufacture and assembly of semiconductors and processing 
management of highly hazardous chemicals, and with respect to 
permissible exposure levels for air contaminants, with work on 
flammable and combustible liquids, wherever, and on and on and 
on, and a list that I want to submit for the record here.
    But since you are not looking in that direction, because 
you have essentially withdrawn safety regulations, you don't 
feel you need inspectors in that area. So it may be that you 
are actually undermining the very spirit of the OSHA law, which 
was passed in 1970, and I might add, signed into law by Richard 
Nixon, that states that Congress finds that personal injuries 
and illnesses arising out of work situations imposes a 
substantial burden upon and are a hindrance to interstate 
commerce, in terms of lost production, wage loss, medical 
expenses and disability compensation payments.
    OSHA was passed not only for workers, but for business as 
well. So I have another question that I want to ask. Do you 
believe that appropriate deterrence in a criminal system helps 
prevent crimes from occurring?
    Mr. Foulke. I am sorry. Could you repeat the question?
    Mr. Kucinich. Do you believe that appropriate deterrence in 
the criminal system helps prevent crimes from occurring, like 
penalties, for example, or sentences?
    Mr. Foulke. I would say that that may be a partial impact 
on activity. Yes, I would say that in part would be true.
    Mr. Kucinich. Are OSHA's penalties for violations serious 
enough to deter an employer from violating workplace safety 
rules?
    Mr. Foulke. I would say the act sets the civil penalties 
and also the criminal penalties. Obviously, that is the purview 
of the Congress if they wanted to change that. I would say that 
if you look at what we have done in the penalty situation, last 
year we had double the number, I won't say egregious, the 
enhanced enforcement actions that we have had, where the 
penalties were over $100,000, than the year before. In 2005, we 
actually doubled the number of company's inspections where the 
penalty was over $100,000. So we are really focusing on that.
    We also have our egregious policy, which allows us to do 
sites item by item. So we have a lot of tools in the OSHA tool 
box that deal with penalties to be a deterrent. So I would say 
that is correct.
    Mr. Kucinich. Mr. Chairman, I see my time has expired. What 
I would like to do is submit for the record that the average 
OSHA penalty for a violation by an employer deemed serious in 
2005 was $873, and the average OSHA penalty for a repeat 
violation by an employer in 2005 was $3,635.
    I would like to submit for the record the list of safety 
regulations that have been withdrawn by the administration; a 
copy of the bill that was the purpose of our subcommittee, the 
OSHA bill; and also a report, a state-by-state profile of 
worker safety and health in the United States. It is an up-to-
date report called ``Death on the Job.''
    I appreciate it, Mr. Chairman.
    Chairman Norwood. So ordered.*
---------------------------------------------------------------------------
    *Submitted and placed in permanent archive file, ``OSHA Standards 
Killed, Withdrawn Or Delayed Under Bush Administration,'' also appear 
on p. 38 of this document. ``Death on the Job: The Toll of Neglect. A 
National and State-by-State Profile of Worker Safety and Health in the 
United States,'' 15th Edition. April 2006, http://www.aflcio.org/
mediacenter/resources/reports.cfm. (Submitted for the record by Rep. 
Kucinich).
---------------------------------------------------------------------------
    Mr. Kucinich. Thank you.
    Chairman Norwood. Mr. Secretary, thank you very much for 
your time and cooperation. I look forward to working with you. 
You may now step down, and the second panel please move 
forward.
    Mr. Foulke. Thank you, Mr. Chairman. I thank the committee.
    Chairman Norwood. Gentlemen, welcome. I appreciate your 
time and effort to be here.
    I will start and introduce all three of you, and then we 
will go back to Mr. Casper and start with you, sir.
    Joseph Casper is vice president for environment, health and 
safety at the Brick Industry Association in Washington, D.C. 
Mr. Casper previously served in both the Reagan and the George 
H.W. Bush administrations, including working on Vice President 
Bush's domestic policy staff at the White House and serving as 
the Commerce Department's director of legislative affairs for 
the U.S. Travel and Tourism Administration. Mr. Casper earned a 
degree in psychology from Georgetown University and a master's 
degree from Johns Hopkins University.
    Dr. David Michaels is a research professor and associate 
chairman of the Department of Environmental and Occupational 
Health at George Washington University. Much of Dr. Michaels' 
work has focused on the use of science in public policy. From 
1998 through January 2001, Dr. Michaels served as the 
Department of Energy's assistant secretary for environment, 
safety and health. Dr. Michaels holds a master's of public 
health and a doctorate degree from Columbia University.
    Mr. David Sarvadi is a partner at Keller and Heckman here 
in Washington, D.C. Mr. Sarvadi is an attorney working with 
clients in the area of occupational health and safety, toxic 
substance management, employment law, and product safety. He 
represents clients before a variety of Federal and state 
agencies in legal proceedings involving OSHA citations, the 
Environmental Protection Agency, and other Federal entities.
    In addition, Mr. Sarvadi is a certified industrial 
hygienist. He holds an undergraduate degree from Pennsylvania 
State University, a master's degree from the University of 
Pittsburgh Graduate School of Public Health, and a law degree 
from George Mason University.
    I would like to remind the members that we will be asking 
questions of the witnesses after testimony. In addition, 
committee rule two imposes a 5-minute limit on all questions.
    Mr. Casper, you are now recognized.

STATEMENT OF JOSEPH S. CASPER, VICE PRESIDENT OF ENVIRONMENTAL 
       HEALTH AND SAFETY, THE BRICK INDUSTRY ASSOCIATION

    Mr. Casper. Thank you, Mr. Chairman and members of the 
subcommittee.
    My name is Joseph Casper of the Brick Industry Association, 
the national trade association for the brick industry, 
consisting of companies that manufacture and distribute quality 
clay brick products across the United States.
    BIA is committed to efforts to protect the health and 
safety of our industry's workforce. In fact, this past March 
BIA formally signed an alliance agreement with OSHA pledging to 
collaborate with the agency on worker health and safety issues. 
We very much appreciate today's opportunity to testify before 
you because BIA strongly supports H.R. 5554.
    I wish to speak particularly about silica and silicosis in 
brick manufacturing. We believe that nonconsensus standards 
regarding crystalline silica developed by the American 
Conference of Governmental Hygienists, or ACGIH, threshold 
limit values or TLV committee, utterly failed to take into 
account the particular conditions of our industry.
    To begin, it is good news indeed that mortality and 
morbidity from silicosis has declined significantly over the 
past several decades, but we want the subcommittee to know that 
while cases of silicosis continue to occur in other industries, 
the experience with silicosis among brick workers is in sharp 
contrast.
    My prepared testimony contains information on six peer-
reviewed studies of brick workers from 1941 to 1999. Of these, 
five showed no evidence of silicosis. The sixth study found 
some changes consistent with silicosis, changes in the lung, 
but those were exceedingly low and below the background 
expected of a normal population not exposed to silica dust.
    Indeed, the lack of silicosis in the brick industry has 
perplexed scientists and caused them to look carefully at what 
is unique about the silica in brick manufacturing, as 
contrasted with other industries, in an attempt to disentangle 
why exposures above safe levels are not resulting in cases of 
silicosis.
    While not yet definitive, the answer appears to be found in 
the composition of the raw materials used to manufacture brick. 
To develop a better understanding of silicosis in the brick 
industry, our association sponsored a just-conducted study that 
determined the prevalence of radiographic signs of silicosis 
among current workers.
    We chose as the study leader Dr. Patrick Hessel, an 
epidemiologist with great experience in occupational and 
environmental lung diseases, who has conducted extensive 
research on silicosis, asbestosis and lung cancer. Dr. Hessel 
and his colleagues studied workers at 13 plants producing clay 
brick from 94 facilities operated by members of the BIA. These 
workers were selected through a random process, taking account 
of company size, geographic location and employee age. 
Radiographs from 701 workers were read by two NIOSH-certified 
B-readers.
    Very importantly, none of the chest X-rays of the 701 
workers was consistent with silicosis. These results are 
consistent with the studies that I mentioned earlier of brick 
workers from around the world, including the United States, and 
provide additional evidence that for the brick industry, the 
ACGIH TLVs are overly restrictive and inappropriate.
    While BIA supports the intent of the OSHA hazcom standard, 
there are provisions of it with which we disagree. One of the 
most disturbing is the recognition by OSHA of the latest 
addition of the TLVs of the ACGIH as a source showing that the 
listed chemicals are hazardous for purposes of hazard 
communication. Even more problematic is the requirement that 
material safety data sheets must include the current ACGIH TLV 
for each chemical.
    We do not wish to denigrate the ACGIH or its TLV committee, 
both of which have through the years made significant 
contributions to the fields of industrial hygiene and 
occupational health. However, times have changed and we believe 
the TLV committee has failed to keep pace.
    For example, when a Medline search of the medical 
literature for the term ``asbestos'' returns over 9,000 
citations, and for the term ``silicosis'' returns almost 7,000 
citations, gone are the days when a volunteer committee of some 
24 scientists could devote their spare time to do a credible 
job in collecting, organizing, reading, evaluating and writing 
scientific justification for the more than 600 substances for 
which a TLV has been established.
    Very specifically, the recent changes in the TLV for 
quartz, a form of crystalline silica that is the second most 
common mineral in the Earth's crust, illustrates the problem. 
In 2000, the TLV committee reduced by half the TLV for quartz 
that had been accepted for 28 years.
    On the other hand, in 2006, just 6 years later, the ACGIH 
concluded that the science had changed again to the point that 
another new TLV for quartz was recommended and adopted, with 
another reduction by half of the value, down to .25 milligrams 
per cubic meter.
    The documentation justifying lowering of the 2006 TLV 
included only 96 scientific references, even though a Medline 
search conducted online from the National Library of Medicine 
Web site captures almost 7,000 citations for the term 
``silicosis.'' Among those 96 citations, not one of the papers 
I discussed earlier of studies of silicosis in the brick 
industry was referenced by the TLV committee.
    In conclusion, without considering any of the scientific 
literature referenced earlier concerning brick workers, the TLV 
committee concluded that there is scientific justification for 
further lowering of the quartz TLV. What this means is that 
under existing provisions of the hazcom standard, our member 
companies were given only 3 months to update their MSDS's with 
a value that is not scientifically defensible for distribution 
to customers, or face being in violation of the act.
    Something is fundamentally wrong with such a regulatory 
burden being placed on industry without any means of being able 
to involve itself through any meaningful input or 
administrative recourse. Therefore, for the reasons just 
stated, Mr. Chairman, BIA strongly supports your favorable 
consideration of H.R. 5554, the Workplace Safety and Health 
Transparency Act.
    Thank you.
    [The prepared statement of Mr. Casper follows:]

 Prepared Statement of Joseph S. Casper, Vice President, Environment, 
            Health & Safety, the Brick Industry Association

    Mr. Chairman and Members of the Subcommittee, my name is Joseph S. 
Casper and I am vice president for Environment, Health, and Safety for 
the Brick Industry Association, headquartered in Reston, Virginia.
    The Brick Industry Association (``BIA'') is the national trade 
association representing the brick industry, consisting of companies 
that manufacture and distribute quality clay brick products (both face 
and paver brick) across the United States. Thirty-five manufacturer 
members of the BIA produce between 80 to 85 percent of all 10 billion 
bricks produced annually. Most of these manufacturers are small 
businesses. The approximate number of workers employed in our industry 
(production, distribution, professional services, masons, etc.) is 
215,000. All told, the brick industry contributes more than $20 billion 
annually to the U.S. economy.
    Brick continues to be a highly desirable form of wall cladding 
because of its durability and energy efficiency, as well as its ability 
to safeguard against both fire and high winds. Brick is available in 
many different textures, and in an almost limitless number of colors.
    BIA's organization has departments devoted to marketing, 
engineering services, and safeguarding the environment, as well as 
employee health and safety.
    The BIA is committed to efforts to protect the health and safety of 
our industry's workforce. In 2004, BIA hosted OSHA Administrator John 
Henshaw for a keynote address at our annual trade show and convention. 
Also, this past March BIA formally signed an Alliance agreement with 
OSHA, pledging to collaborate with the Agency on efforts to improve the 
provision of practical guidance on worker health and safety issues.
    On behalf the brick industry, we very much appreciate the 
opportunity to testify before you today on the important topic of the 
U.S. Department of Labor's use of non-consensus standards in workplace 
health and safety. In that regard, for the reasons set forth below, the 
BIA strongly supports H.R. 5554, the Workplace Safety and Health 
Transparency Act of 2006.

Silica and Silicosis in Brick Manufacturing
    We wish to speak particularly about silica and silicosis in brick 
manufacturing. As you will hear, we believe the non-consensus standards 
regarding crystalline silica, developed by the American Conference of 
Governmental Hygienists' Threshold Limits Committee utterly fail to 
take into account the particular conditions of our industry.
    To begin, it is good news, indeed, that mortality and morbidity 
from silicosis across industry, in general, has declined significantly 
over the past several decades (in 1968--1168 silicosis-related deaths 
were reported; in 2002--148 silicosis-related deaths were reported). 
Nevertheless, cases of silicosis continue to occur in the quarrying and 
cutting of stone, in mining of metallic and nonmetallic ores, in iron 
and steel foundries, and in construction.\1,2\ However, we want the 
Subcommittee to know that the experience with cases of silicosis among 
brick workers in the United States, and elsewhere, is in sharp contrast 
to the experiences with silicosis in the other industries mentioned 
above.
    Thus, in this country, an early study (1941) in North Carolina 
examined 1555 workers clinically and by chest x-ray in 48 brick plants 
and collected 183 dust samples in 28 of those same plants.\3\ These 
chest x-rays were read independently by two physicians who were 
experienced film readers with the North Carolina Dusty Trades Program, 
an early prevention program that conducted routine medical examinations 
of workers in asbestos textile plants, quarries, sand plants, and clay 
operations in the state. Both of the physicians reported no evidence of 
silicosis in any of the workers. Average dust exposures ranged from 2 
to 138 million particles per cubic foot (``mppcf') and 11 of the 31 
jobs had average exposures above 20 mppcf. The current OSHA silica 
Permissible Exposure Limit (``PEL'') for the dust in this study would 
have been 12.5 mppcf
    Similarly, a 1972 study in Canada of workers manufacturing 
structural clay bricks in Ontario documented extremely high dust 
levels, some more than 100 times the prevailing occupational limits.\4\ 
Despite these high levels, no cases of silicosis were found. A more 
recent study (1998) from Croatia found no evidence of pneumoconiosis 
among 233 workers.\5\ Likewise, a 1983 study in Poland by Wiecek and 
colleagues found no pneumoconiosis among workers making structural clay 
brick.\6\ Lastly, and most recently a 1999 study of more than 1,900 
workers in the brick industry in England and Scotland found that x-ray 
evidence of small rounded nodules consistent with silicosis were 
exceedingly low and below the background expected in a normal 
population not exposed to silica dust.\7\ This finding was surprising 
to the authors in that most jobs in the brick plants studied had 
average exposures to respirable quartz greater than the current OSHA 
PEL of 0.1 milligrams per cubic meter of air (mg/m3).
    Indeed, the lack of silicosis in the brick industry has perplexed 
scientists and caused them to look carefully at what is unique about 
the silica in brick manufacturing, as contrasted with other industries, 
in an attempt to disentangle why exposures above ``safe'' levels are 
not resulting in cases of silicosis. While not yet definitive, the 
answer appears to be found in the composition of the raw materials used 
to manufacture bricks. The principal raw materials used in the 
manufacture of structural clay brick include clays and shales having a 
composition of 35 to 50 percent sedimentary clays, but in addition, 
commonly containing 40 to 50 percent crystalline silica as quartz.\8\
    The authors of the 1972 Canadian brick study4 addressed this issue. 
In their study of over 1,000 brick workers in Ontario they were 
surprised that they did not find signs of silicosis in brick workers 
despite finding that workers were exposed to dust levels eight to 111 
times the existing American Conference of Governmental Industrial 
Hygienists (``ACGIH'') Threshold Limit Value (``TLV''). They 
hypothesized that the aluminum contained in the clays and shales that 
coated the silica particles may have reduced their ability to produce 
silicosis. And, indeed, recent laboratory studies by other scientists 
suggest that the coating of silica particles by aluminum in these clay 
and shale minerals does indeed reduce its biological activity.\9,10,11\ 
Thus, for example, the researchers in the United Kingdom noted the 
potential impact of aluminum as well as other metal ions on the surface 
of quartz particles in heavy clay industry, and pointed specifically to 
the mineral illite as being effective in reducing the toxicity of 
inhaled quartz.7 While the exact mechanism whereby the clays and shales 
used in brick manufacturing modify the toxicity of silica is a 
scientific uncertainty, it is evident that a modification takes place, 
and that brick workers do not have the same risk of developing 
silicosis as other workers such as granite carvers, foundry workers and 
metal miners.
    To develop a better understanding of silicosis in the brick 
industry, our Association has sponsored a just-concluded Study, 
entitled ``The Prevalence of Silicosis in the Brick Industry,'' to 
determine the prevalence of radiographic signs of silicosis among 
current workers in the U.S. brick industry. We chose as the Study 
leader Dr. Patrick Hessel, an epidemiologist with great experience in 
occupational and environmental lung diseases, who has conducted 
extensive research on silicosis, and lung cancer. Dr. Hessel and his 
colleagues studied workers at thirteen plants producing structural clay 
brick from 94 facilities operated by members of the Brick Industry 
Association. These workers were selected through a random process, 
which took account of company size, geographic location, and employee 
age. Radiographs from 701 workers were read by two NIOSH-certified B-
readers. When the two primary readers disagreed on the interpretation 
of a film, the chest x-ray was ready by a third B-reader. Very 
importantly, one of the chest x-rays of the 701 workers was consistent 
with silicosis. These results are consistent with the previous studies 
mentioned of brickworkers from the United States, the United Kingdom, 
Canada, Croatia and Poland, and provide additional evidence that the 
ACGIH TLVs, as well as other occupational exposure limits for silica, 
are overly restrictive and inappropriate for the brick industry.
    We were pleased that Dr. Hessel's research shows brick workers 
appear not to be at risk for silicosis at today's exposure levels. Our 
industry will continue to look for opportunities to sponsor research to 
fill the critical knowledge gaps regarding the uniqueness of the silica 
particles found in the brick industry.

Hazard Communication for Silica in Structural Brick
    The Brick Industry Association supports the intent of the OSHA 
Hazard Communication Standard (the ``HAZCOM'' Standard'') that the 
hazards associated with the use of chemicals should be evaluated, and 
that information concerning the potential hazards and means of 
protecting workers should be transmitted to both employers and 
employees. Indeed, our Association has worked with our member companies 
on evaluating the hazards from exposure to brick dusts and the means of 
communicating such information. However, there are provisions of the 
HAZCOM Standard with which we disagree. One of the most disturbing is 
the recognition by OSHA of the latest edition of the TLVs of the ACGIH 
as a source showing that the listed chemicals are hazardous for 
purposes of hazard communication. Even more problematic is the 
requirement that Material Safety Data Sheets must include the current 
ACGIH TLV for each chemical.

The ACGIH and Its TLV Committee
    We do not wish to denigrate the ACGIH or its TLV Committee, both of 
which have made significant contributions to the fields of industrial 
hygiene and occupational health. Over the life of the organization, the 
TLV process has been one of the better known activities of the ACGIH. 
However, times have changed and we believe the TLV Committee has failed 
to keep pace. In 1941, when the TLV Committee was established, and 
through the next several decades, the TLV Committee process seemed to 
work well. Committee members, mostly toxicologists and industrial 
hygienists, met to evaluate the published scientific literature (albeit 
generally scanty), unpublished industry studies, and often anecdotal 
accounts of health effects of exposures. These evaluations were then 
followed by a recommendation to the ACGIH's membership for the adoption 
of threshold limit values that were then to be used as guidelines by 
trained industrial hygienists.
    The most significant factor in outdating the TLV process was the 
passage of the 1970 Occupational Safety and Health Act (``OSH Act'') 
which established OSHA, as a new and critically important player in the 
national arena of occupational safety and health. OSHA was mandated, by 
statute, to carry out development of mandatory safety and health 
standards--and enforcement of those standards to ensure employers 
provided safe and healthful workplaces for employees. The OSH Act 
created enormous interest in employee safety and health that led to an 
explosion of quantitative and qualitative information. This information 
overload was perhaps the single most important factor causing the 
unraveling of the TLV model.
    Thus, for example, when a Medline search of the medical literature 
for the term ``asbestos'' returns over 9,000 citations and a search for 
the term ``silicosis'' returns almost 7,000 citations, gone are the 
days when a volunteer committee of some 24 scientists could devote the 
spare time to do a credible job in collecting, organizing, reading, 
evaluating and writing scientific justification for the more than 600 
substances for which a TLV has been established.
    Other flaws of the ACGIH TLV process, which I only have time to 
briefly mention, include lack of any meaningful involvement in the 
Committee's work by other ``stakeholders,'' particularly industry; no 
real feed-back to stakeholders' legitimate scientific comments (even 
though such comments are solicited by the Committee), or even any 
assurances that they were read. In addition, potential conflicts of 
interest arise from the involvement of government officials on the 
Committee who are responsible for developing federal safety and health 
standards. Furthermore, the potential for a conflict exists when 
federal scientists engaged in research on a substance are asked to 
prepare scientific justification for a TLV for that substance without 
rigorous peer review.
    Very specifically, from our perspective, the recent changes in the 
TLV for quartz, a form of crystalline silica that is the second most 
common mineral in the earth's crust, is illustrative of the problem. In 
2000, the TLV Committee reduced by half the TLV for quartz to 0.05 mg/
m3 from its value of 0.1 mg/m3 adopted during the 1986-1987 period. 
Coincidentally, the 0.1 mg/m3 is essentially equivalent to the TLV that 
was calculated from the formula for quartz adopted by the TLV Committee 
in 1972. What this means is that, for all practical purposes, the TLV 
did not change for 28 years from 1972 until the abovementioned 2000 
reduction. On the other hand, in 2006, just six years later, the ACGIH 
concluded that the science had changed again, to the point that another 
new TLV and adopted with another halving of the value to 0.025 mg/m3:
    The documentation validating the lowering of the 2006 TLV included 
only 96 scientific references, even though, as I mentioned previously, 
a Medline search conducted online from the National Library of Medicine 
website captures almost 7,000 citations for the term ``silicosis''. 
Among those 96 citations, not one of the papers I discussed earlier of 
studies of silicosis in the brick industry was referenced by the TLV 
Committee. Those studies indicate that even the earlier TLV of 0.1 is 
mg/m3 is probably not appropriate or necessary for silica exposures 
among brick workers.
    Without considering any of the scientific literature I have cited 
that relates to studies of silicosis among brick workers, the TLV 
Committee concluded that there is scientific justification for further 
lowering of the quartz TLV. What this means for the brick industry is 
that, under existing provisions of the HAZCOM Standard, our member 
companies were given only three months to update their Material Data 
Safety Sheets (``MSDS'') materials with a value that is not 
scientifically defensible for distribution to customers--or face being 
in violation of the Act. Something is fundamentally wrong with such a 
regulatory burden being placed on industry, without any means of being 
able to involve itself through any meaningful input or administrative 
recourse.

Conclusion
    The relevant issue harming our industry is that, for purposes of 
its HAZCOM Standard, OSHA has recognized the ACGIH TLV list of 
chemicals as denoting that a substance is a hazard, irrespective of its 
conditions of use; and that the TLV must be communicated to downstream 
users regardless of whether it is justifiable scientifically. This 
naturally can and does cause unnecessary apprehension about the use of 
our product by our customers, and can adversely affect our ability to 
sell in a very competitive marketplace.
    Therefore, it is for the reasons briefly outlined above, Mr. 
Chairman and Members of the Subcommittee, that the BIA strongly 
supports your favorable consideration of H.R. 5554, the Workplace 
Safety and Health Transparency Act of 2006. If enacted, the Bill will 
prohibit OSHA from blithely and indiscriminately requiring changes to 
MSDSs every time the ACGIH changes a TLV. Just as importantly, the Bill 
will not prevent OSHA from adopting true consensus standards in a 
timely fashion.
    Again the brick industry appreciates the opportunity to share our 
view with on this important legislation and urges the Subcommittee's 
rapid approval of H.R. 5554.

                                ENDNOTES

    \1\ NIOSH, Work-Related Lung Disease Surveillance Report 2002, 
National Institute for Occupational Safety and Health, Centers for 
Disease Control and Prevention, DHHS (NIOSH) Number 2003-111, May 2003. 
(Available at: http://www.cdc.gov/niosh/docs/2003-111/2003-111.html)
    \2\ Bang KM, Mazurek JM and Attfield MD. Silicosis mortality, 
prevention, and Control--United States, 1968-2002, MMWR 54(16); 401-
405, 2005. (Available at: http://www.cdc.gov/mmwr/preview/mmwrhtml/
mm5416a2.htm)
    \3\ Trice MF. Health of brick and tile workers in North Carolina. 
Bulletin of the American Ceramic Society. 20(4); 130-134, 1941.
    \4\ Rajhans & Buldovsky J. Dust conditions in brick plants of 
Ontario. Am Ind Hyg Assoc J, 33: 258-268, 1972.
    \5\ Zuskin E, Mustajbegovic J, Schachter EN, Kern J, Doko-Jelinic 
J, Godnic-Cvar J. Respiratory findings in workers employed in the 
brick-manufacturing industry. J Occup Environ Med. Sep; 40(9):814-20, 
1998.
    \6\ Wiecek E, Goscicki J, Indulski J, & Stroszejn-Mrowea G. [Dust 
and occupational diseases in brick yards.] Med Pr, 34: 34-45, 1983 (in 
Polish).
    \7\ Love RG, Waclawski ER, Maclaren WM, Wetherill GZ, Groat SK, 
Porteous RH, & Soutar CA. Risks of respiratory disease in the heavy 
clay industry. Occup Environ Med, 56: 124-133, 1999.
    \8\ Brownell WE (1976): Structural clay products. In: Frechette VD, 
Kirsch H, Sand LB, and Trjer F (eds). Applied Mineralogy. New York: 
Springer-Verlag. Pp. 24-42.
    \9\ Harrison J, Chen JQ, Miller W, Chen W, Hnizdo E, Lu J, Chisholm 
W, Keane M, Gao P, Wallace W (2005): Risk of silicosis in cohorts of 
Chinese tin and tungsten miners and pottery workers (II): Workplace-
specific silica particle surface composition. Am J Ind Med 48:10-5.
    \10\ Fubini B, Fenoglio I, Ceschino R, Ghiazza M, Mrtra G, Tomatis 
M, Borm P, Schins R, Bruch J (2004): Relationship between the state of 
the surface of four commercial quartz flours and their biological 
activity in vitro and in vivo. Int J Hyg Environ Health 207:89-104.
    \11\ Clouter A, Brown D, Hohr D, Borm P, Donaldson K (2001): 
Inflammatory effects of respirable quartz collected in workplaces 
versus standard DQ 12 Quartz: Particle surface correlates. 
Toxicological Sciences 63: 20-98.
                                 ______
                                 
    Chairman Norwood. Thank you very much, Mr. Casper.
    Dr. Michaels, you are now recognized for 5 minutes.

STATEMENT OF DAVID MICHAELS, PH.D., MPH, RESEARCH PROFESSOR AND 
      ASSOCIATE CHAIRMAN, DEPARTMENT OF ENVIRONMENTAL AND 
       OCCUPATIONAL HEALTH, GEORGE WASHINGTON UNIVERSITY

    Dr. Michaels. Good morning. My name is David Michaels, 
research professor in environmental and occupational health at 
George Washington University's School of Public Health. I would 
like to request that my entire written statement, along with 
accompanying papers, be entered into the record of this 
hearing.
    This legislation, Mr. Chairman and members of the 
committee, is not what it appears to be. Its objective is not 
to improve the administrative process, and it certainly makes 
no attempt to ensure that good science is used to protect the 
public's health. In fact, it does the opposite. It ensures that 
the newest best science will not be used to protect workers 
from toxic exposures.
    I have first-hand experience as a regulator. I served as 
the Department of Energy's assistant secretary for environment, 
safety and health, responsible for safety and health at the 
nation's nuclear weapons facilities.
    I agree with Assistant Secretary Foulke's assessment of 
this bill. It would significantly obstruct OSHA's and MSHA's 
work. But that is its objective. The proposed legislation is 
part of a campaign spearheaded by the well-paid lobbyists at 
the firm of Patton Boggs being waged on behalf of a small group 
of companies for the right to----
    Chairman Norwood. Sir, I object. Patton Boggs didn't write 
that legislation. I did. Don't be telling me why I wrote it.
    Dr. Michaels. With due respect, sir, I didn't say that they 
wrote the bill. I said they are spearheading the campaign to do 
this work.
    After losing in Federal court not once but twice, these 
parties now seek special favors from Congress. Under this bill, 
OSHA and MSHA could not use----
    Chairman Norwood. I object to that, too. What are you 
implying there, Dr. Michaels?
    Dr. Michaels. I am saying these companies did not succeed 
in court in shutting down the ACGIH, so they come to Congress--
--
    Chairman Norwood. This law firm you refer to I have no 
interest in. You are impugning my reputation right here, and I 
want it stopped. Am I clear?
    Dr. Michaels. I understand what you are saying, sir.
    Chairman Norwood. I hope you do.
    Dr. Michaels. Under this bill, OSHA and MSHA could not use 
recommendations from expert organizations unless the agency 
determines that the recommendations were reached using a 
process that ensured that impacted industries agree with the 
recommendations. Protecting workers from chemical hazards 
should be based on science, not on gaining the agreement of 
industries responsible for the hazard.
    The proposed legislation is written so broadly that it 
would even stop the agencies from using the recommendations of 
highly regarded government panels such as the National 
Toxicology Program. In 1971, OSHA adopted about 400 ACGIH TLVs, 
which used the science of the 1950's and the 1960's.
    Since then, OSHA has updated only a handful of them. The 
rest have been unchanged in more than 35 years. The OSHA 
standard-setting process is cumbersome and easily derailed by 
those intent on slowing action. The political appointees who 
run the agency at the present time have no desire to strengthen 
these inadequate standards.
    Instead, the American public must rely on organizations 
like the ACGIH and IARC, the International Agency for Research 
on Cancer. When the IARC expert panel concludes that a 
substance like silica or beryllium or hexavalent chromium 
causes cancer in humans, shouldn't this information be provided 
to exposed workers? Wouldn't you want to know if the chemicals 
you work with cause cancer?
    The outside proponents of this legislation have labeled any 
recommendations they don't like as junk science. In doing so, 
they have taken a page from the tobacco industry's playbook. 
With all due respect, the attorneys and trade associations who 
are pushing this line are as wrong as the tobacco executives 
who testified in this very building that smoking does not cause 
cancer.
    We all agree that OSHA should issue more standards and that 
the agency has abdicated its responsibility to do so, I 
believe. The effects of this OSHA failure are real and they are 
tragic and they are happening right before our eyes. Scores of 
workers have been diagnosed with what has been called popcorn 
worker's lung from a widely used chemical that provides butter 
flavoring for popcorn, but OSHA has no plans for a standard to 
protect food industry workers from this debilitating lung 
disease.
    I ask, can't we do a better job to protect American 
workers?
    Thank you very much.
    [The prepared statement of Dr. Michaels follows:]

Prepared Statement of David Michaels, Ph.D., MPH, Director, the Project 
   on Scientific Knowledge and Public Policy; Research Professor and 
   Associate Chairman, Department of Environmental and Occupational 
                  Health, George Washington University

    Good morning Mr. Chairman and members of the Committee. My name is 
David Michaels. I am a Research Professor in Environmental and 
Occupational Health at the George Washington School of Public Health 
and Director of the Project on Scientific Knowledge and Public Policy, 
known as SKAPP.\1\ SKAPP was created five years ago by a group of 
public health scientists to enhance the public's understanding of how 
scientific evidence is used in the regulatory and legal arenas. From 
1998 to 2001, I served as the Department of Energy's Assistant 
Secretary for Environment, Safety and Health from 1998 through January 
2001. I had primary responsibility for protecting the health and safety 
of workers, the neighboring communities and the environment surrounding 
the nation's nuclear weapons facilities.
    This legislation, Mr. Chairman, is not what it appears to be. Its 
objective is not to improve the administrative process and it certainly 
makes no attempt to ensure that good science is used to protect the 
health of workers, or the public. In fact, it does the opposite. It 
ensures that the newest, best science will not be used to protect 
workers from hazardous chemicals.
    The purpose of the OSHA and MSHA ``HazCom'' standard is ensure that 
employers and workers receive information about the risks associated 
with exposure to a product--information that product's manufacturer is 
required to provide on Material Safety Data Sheets, known as MSDSs. The 
current OSHA and MSHA rules require the MSDS for any product to 
include, among other things, any recommended exposure limits to the 
product from certain professional organizations which have expertise in 
occupational safety and health.
    Under the proposed legislation, OSHA and MSHA could not require 
such recommended exposure limits be included on an MSDS unless the 
agency determines that the recommendation was reached using a process 
that ensures that the impacted industries are in substantial agreement 
with the recommendation. And, Mr. Chairman, that simply is not going to 
happen. Protecting workers from chemical hazards should not depend on 
what everyone can agree.
Manufactured Uncertainty
    The sad truth is that industries responsible for hazards generally 
prefer to manufacture uncertainty in order to avoid the costs 
associated with reducing toxic exposures.\2,3\
    This bill would directly bar OSHA and MSHA from complying with 
their statutory mandates to take into account the best scientific 
evidence in developing rules currently in process. The proposed 
legislation is written so broadly, Mr. Chairman, that it would even 
stop the Department of Labor from using the recommendations of highly 
regarded government panels, such as those of the National Toxicology 
Program.
    The reality is that this legislation is part of a campaign, 
spearheaded by the well-paid lobbyists at the firm of Patton, Boggs, 
being waged on behalf of a small group of companies and trade 
associations. After losing in federal court, not once, but twice, these 
parties now seek special favors from Congress in the form of this anti-
public health legislation. Proponents of this bill want to make sure 
they can continue to expose workers and the public to deadly hazards, 
and do so without interference by public health authorities and without 
the threat of legal action by those injured by their negligence. 
Attorneys from Patton Boggs, for example, represent a group of mining 
companies who have fought for at least a decade for the right to expose 
underground miners to diesel particulate matter, a hazard that 
increases their risk of cardiovascular and cardiopulmonary disease and 
lung cancer.\4\ The EPA and this Congress have made important strides 
to limit the public's exposure to such dangerous particulates, but 
Patton Boggs continues to challenge the Department of Labor's efforts 
to protect underground miners through sustained procedural attacks, and 
sadly, have succeeded in delaying the rule. The unceasing efforts of 
these lobbyists have genuine health consequences for exposed workers.
    You recently heard testimony from a witness representing the 
American Bakers Association complaining about the ACGIH threshold limit 
value (TLV) for flour dust. What the witness failed to mention is that 
respiratory disease among bakery workers is a serious matter, and the 
scientific literature contains significant evidence that workers with 
excessive exposure to flour dust are at increase risk of debilitating 
respiratory disease. I commend the ACGIH for examining this hazard and 
other health risks that OSHA failed to address.
    Today, Mr. Chairman, the work of organizations like IARC and the 
ACGIH are more important than ever. That is because the regulatory 
agencies are simply unable to keep up. In 1971, OSHA adopted en masse, 
about 400 ACGIH TLVs, reached using the science of the 1950's and 
1960's, before we knew as nearly as much as we know today about the 
long-term effects of many hazardous chemicals.
    Since then, OSHA has updated only a handful of them. The rest have 
been unchanged in more than 35 years. The OSHA standard setting process 
is cumbersome and easily delayed by those intent on slowing action. The 
political appointees who run the agency at the present time have no 
desire to strengthen weak standards; except when under a court order. 
Workers cannot rely on OSHA to issue new regulations on chemical 
hazards. OSHA is paralyzed and has abdicated its responsibility to 
issue health standards that protect workers. The situation at MSHA is 
no better, as their exposure limits date back to 1973.
    While OSHA and MSHA are frozen in time, IARC and the ACGIH have 
moved forward. The organizations recognize that our scientific 
methodologies are much improved since the 1960s and we are always 
learning more about chemical hazards and therefore how to prevent 
occupational disease and death.
    Since the early 1970's the monograph program of IARC, a branch of 
the World Health Organization, has convened interdisciplinary panels of 
scientific experts to identify substances that pose a carcinogenic risk 
to humans. These include some of the best scientists in the world, and 
the program is supported with US funding.
    These expert panels conduct public meetings in which 
representatives of the affected industries and their lobbyists are 
allowed to participate and comment. The scientists review the published 
literature and evaluating the full range of evidence.\5\ It has been 
nearly 10 years since IARC designated crystalline silica as a human 
carcinogen. Washington trade groups, like the Brick Industry 
Association, may object to IARC's designation, but representatives of 
the producers and users of silica were present at the IARC meeting and 
their input was heard.\6\ In the time since the IARC designation, the 
evidence of the carcinogenicity of crystalline silica continues to 
grow, while OSHA's standard, based on 1968 science, remains unchanged 
and hopelessly outdated.
    The IARC monograph series provides a great service, offering the 
public health community a comprehensive assessment of the current 
scientific information, at times when our own public health agencies 
are under-resourced and unable to do so. When an IARC expert panel 
concludes that a substance like silica, or beryllium, or hexavalent 
chromium are carcinogenic to humans, shouldn't this information be 
provided to workers through a MSDS and the right-to-know protections 
afforded by the Hazard Communication standard?
    Similarly, the ACGIH has developed TLV recommendations that are 
stronger than OSHA's standards for a small but important group of 
hazards. Hazards such as welding fumes, particulate matter and silica. 
None of these are trivial--each is responsible for death and disability 
among exposed workers.
    In addition, the ACGIH has produced recommendations for many 
chemicals for which no OSHA PEL currently exists. Since OSHA has 
essentially stopped issuing new chemical standards, these recommended 
TLVs serve as the basis for disease prevention programs by responsible 
employers and public health professionals. And that, Mr. Chairman, is a 
key purpose of OSHA and MSHA's Hazard Communication standards---giving 
workers and employers the health effects information they need to be 
proactive and take measures to prevent workplace injuries and 
illnesses.

Taking the Tobacco Road
    The proponents of this legislation have taken a page from the 
Tobacco Industry's playbook. With no scientific support, except from 
their own mercenary consultants, they've labeled any recommendations 
they don't like as ``junk science''. With all due respect, the 
attorneys and trade associations who are pushing this line are as wrong 
as those tobacco executives who testified under oath in front of a 
House Energy and Commerce committee hearing that tobacco didn't cause 
cancer.
    The secret agenda of Patton Boggs aside, you and I evidently agree 
that OSHA should be issuing more standards, and that they have 
abdicated their responsibility to do so.\7\ I have attached a list of 
31 OSHA standards killed, withdrawn or delayed by the Bush 
Administration.
    The effects of this OSHA failure are real and they are tragic and 
they are happening right before our eyes. Nearly 200 workers have been 
diagnosed with what has been called ``popcorn workers lung'' from a 
widely used chemical that provides butter flavoring for popcorn, but 
OSHA has no plans for a standard to protect food industry workers from 
having their lungs destroyed. (See attached article on popcorn workers 
lung and OSHA's abdication.) \8\ OSHA's current beryllium exposure 
standard dates to 1949. Fifty years later, when I was Assistant 
Secretary of Energy, we issued a workplace exposure standard for 
beryllium that is ten times stronger than OSHA's. After much initial 
opposition, even the beryllium industry now acknowledges the current 
OSHA standard is inadequate. The bill being considered today would 
prohibit OSHA from referencing the ACGIH's recommendations on 
beryllium, or IARC's findings that beryllium is a human carcinogen. 
There are no comprehensive standards to protect workers from ergonomic 
hazards, or from noise in the construction industry. I could go on and 
on. This is a public health crisis.
    I hope that Members of Congress will reject claims made by 
proponents of this bill, and instead take the positive step of passing 
legislation to incorporate the most current ACGIH TLVs into OSHA and 
MSHA regulations. Worker health is not served by enforcing 40 year old 
exposure limits. Workers in the United States deserve 21st century 
protections.
    I want to close by saying that I am saddened and a little 
embarrassed to read in a press release on the Patton Boggs website that 
the chairman of this subcommittee said ``The ACGIH is going to stop 
writing the laws of this land, if it's the last thing I do on this 
earth.'' \9\ Mr. Chairman, I ask you, do you want to be remembered in 
the history books as someone who saved lives, who promoted the use of 
good science to protect workers from developing cancer or lung disease, 
so they could live long enough to play with their grandchildren, or as 
someone who was instrumental in blocking public health agencies, 
employers and endangered workers from using important scientific 
information to prevent disease?
    Thank you very much.
OSHA Standards Killed, Withdrawn or Delayed by the Bush 
        Administration\10\
            Standards Killed
Ergonomics Standard (Killed by Congress under the Congressional Review 
        Act in March 2001)
            Standards Withdrawn
PELs for Air Contaminants (Dec. 2001)
Metalworking Fluids (Dec. 2001)
Update and Revision of Flammable and Combustible Liquids Std. (Dec. 
        2001)
Process Safety Management of Highly Hazardous Chemicals (Dec. 2001)
Revision/Update of Mechanical Power Transmission Apparatus Std. (Dec. 
        2001)
Safety Standards for Scaffolds in Construction--Part II (Dec. 2001)
Safety and Health Programs for Construction (Dec. 2001)
Control of Hazardous Energy in Construction (Dec. 2001)
Consolidation of Records Maintenance Requirements in OSHA Stds. (Dec. 
        2001)
Oil and Gas Well Drilling and Servicing (Dec. 2001)
Update and Revision of Spray Applications (Dec. 2001)
Occupational Exposure to Perchloroethylene (Dec. 2001)
Sanitation in the Construction Industry (Dec. 2001)
Update and Revision of Woodworking Machinery Standard (Dec. 2001)
Ergonomics Programs in Construction (Dec. 2001)
Occupational Health Risks in the Manufacture/Assembly of Semiconductors 
        (Dec. 2001)
Indoor Air Quality (May 2002)
Scaffolds in Shipyards (May 2002)
Access and Egress in Shipyards (June 2002)
Accreditation of Training Programs for HAZWOPER (August 2002)
Safety and Health Programs for General Industry (August 2002)
Fall Protection in Construction (August 2002)
Glycol Ethers (Dec. 2003)
Occupational Exposure to Tuberculosis (Dec. 2003)
            Standards Delayed
Payment for Personal Protective Equipment (Notice of proposed 
        rulemaking March 1999. Public hearing August 1999. Still in 
        final rule stage)
Assigned Protection Factors for Respirators (Notice of proposed 
        rulemaking June 2003. Public hearing January 2004. Post hearing 
        briefs end May 2004. Still in final rule stage)
Occupational Exposure to Crystalline Silica (On regulatory agenda since 
        1997. Now at prerule stage)
Occupational Exposure to Beryllium (On regulatory agenda since at least 
        2000. Now at prerule stage)
Hearing Conservation in Construction (On regulatory agenda since at 
        least 2002. Currently listed as long-term action)
Confined Spaces in Construction (On regulatory agenda since at least 
        2000. Remains at proposed rule stage since 2004)

                                ENDNOTES

    \1\ I am testifying today on my own behalf, and am not representing 
George Washington University or any other organization.
    \2\ Michaels D, Monforton C. Manufacturing Uncertainty: Contested 
Science and the Protection of the Public's Health and Environment. Am J 
Pub Health 2005;95:Suppl1:S39-48. Available at http://
www.defendingscience.org/loader.cfm?url=/commonspot/security/
getfile.cfm&PageID=2406
    \3\ Michaels D. Doubt is their Product. Scientific American, June 
2005; 292:74-80. Available at http://www.defendingscience.org/
loader.cfm?url=/commonspot/security/
getfile.cfm&PageID=2372&CFID=8884749&CFTOKEN=35991257
    \4\ Monforton C. Weight of the Evidence or Wait for the Evidence? 
Protecting Underground Miners from Diesel Particulate Matter. Am J Pub 
Health 2006; 96: 271-276. Available at: http://
www.defendingscience.org/case--studies/loader.cfm?url=/commonspot/
security/getfile.cfm&PageID=2631
    \5\ International Agency for Research on Cancer (IARC). 2006. 
``IARC Monographs on the Evaluation of Carcinogenic Risks to Humans: 
Preamble.'' Lyon, France. Available at: http://monographs.iarc.fr/ENG/
Preamble/CurrentPreamble.pdf
    \6\ Wilbourn JD, McGregor DB, Partensky C, Rice JM. 1997. ``Meeting 
Report: IARC Reevaluates Silica and Related Substances.'' International 
Agency for Research on Cancer; Lyon, France. Printed in: Environ Health 
Perspect 105(7):756-759. Available at: http://www.ehponline.org/
members/1997/105-7/wilbourn-full.html
    \7\ Norwood C. Opening statement before Subcommittee on Workforce 
Protections of the U.S. House of Representatives' Committee on 
Education and the Workforce. Hearing: ``Examining the Use of Non-
Consensus Standards in Workplace Health and Safety.'' 27 April 2006. 
Available at http://edworkforce.house.gov/hearings/109th/wp/
acgih042706/osnorwood.htm
    \8\ Michaels D, Monforton C. Scientific Evidence in the Regulatory 
System: Manufacturing Uncertainty and the Demise of the Formal 
Regulatory System. J Law Policy 2005;13(1): 17-41. Available at: http:/
/www.defendingscience.org/loader.cfm?url=/commonspot/security/
getfile.cfm&PageID=1709&CFID=8885296&CFTOKEN=44529282
    \9\ Patton Boggs LLP. ``Alert: Congress Investigates Backdoor 
Rulemaking.'' April 2006. Available at http://www.pattonboggs.com/news/
detail.aspx?news=245
    \10\ Source: AFL-CIO Death on the Job: The Toll of Neglect. 15th 
edition, April 2006. Available online at http://www.aflcio.org/issues/
safety/memorial/doj--2006.cfm
                                 ______
                                 
    Chairman Norwood. Mr. Sarvadi, you are recognized now for 5 
minutes.

   STATEMENT OF DAVID SARVADI, ESQ., KELLER AND HECKMAN, LLP

    Mr. Sarvadi. Thank you, Mr. Chairman, and thank you and the 
committee for the opportunity to participate in this process. I 
would ask that my written statement be entered into the record. 
I wanted to just share with you some thoughts I had and 
reactions to some of the testimony I have heard.
    I think it is important to understand that the standards 
that we are talking about that are set by national consensus 
organizations are a very important part of American commerce 
and a great contribution of our American history to the world. 
All you have to do is remember what happened, all the confusion 
that occurred back in the 1860's as the railroads were getting 
started and people couldn't depend on what time the train would 
come because there weren't uniform standards for the time that 
was involved.
    Similarly, not having uniform standards for the width of 
the rails, there were problems in interchanging the railroads. 
So we need to remember that standards that are generated by 
consensus really facilitate our environment, our world, our 
government, and our society. I think they are very important.
    I disagree, though, with people who say that organizations 
that meet in private should somehow be given the imprimatur of 
government authority by the recognition through the rulemaking 
that we have seen here, simply because they happen to be 
scientists who meet and talk about these things.
    The problem with the TLV committee today is that in fact it 
is a secret process. You are not permitted to participate, and 
you don't even know if the commentary that you provide to them, 
which you are permitted to do, you don't even know if that 
commentary is considered in any way.
    I have personal experience with this organization. I 
started out my career as an industrial hygienist more than 30 
years ago. In that responsibility, I had a job where we had 
chemicals that we manufactured where we took the information 
that we paid to develop and gave it to the committee and asked 
them to evaluate it and let us know what they thought the 
standard should be.
    I will admit that, at that time, we had great respect for 
the committee and their deliberations, but we also knew that 
our views would be considered and that we would have an 
opportunity if we so desired to talk to the committee directly 
as they were considering it.
    More recently in the late 1990's, I represented a group 
that wanted to do the same thing. Unfortunately, the committee 
by that time had decided to close its doors. The committee 
today operates without any input from outside parties. It 
doesn't tell you whether or not they follow standard procedures 
using the scientific method to develop the standards that they 
have.
    On that basis alone, the TLVs could not be admitted into 
court under the Supreme Court's Daubert rule. You simply cannot 
adopt and offer as evidence, as scientific evidence, 
information where you cannot demonstrate it has been developed 
using the scientific method, using recognized scientific 
procedures and so on.
    So we have a problem with the TLV committee as it is 
presently operated. I understand very, very well what the 
volunteers on this committee do. I applaud their willingness to 
participate. One of my prior jobs, I worked as a researcher 
under contract with the National Institute for Occupational 
Safety and Health, and I was responsible for developing the 
information and reviewing the literature on a group of 
chemicals known as secondary and tertiary amines.
    There were 9,000 references, a large number of which, more 
than several hundred, were from the Russian literature, which 
we had translated. I read every one. I had to summarize every 
one. And I had to incorporate those summaries into a document 
that was then reviewed by other scientists, both at the company 
I work for and at NIOSH.
    It is a time-consuming and difficult and nerve-wracking at 
times job, but it is one that should be done. It cannot be done 
solely by one individual or by a small group of individuals. It 
has to be done by all parties who are interested and who have 
important things to offer.
    One of the difficulties with the way the TLV committee is 
set up right now is if you happen to work in that industry, you 
are essentially prohibited from participating in any 
significant way in what is going on and in evaluating the 
literature. And yet you may be the person who knows the most 
about the chemical, about its impact on people, about the 
difficulties associated with controlling exposures or the 
unique characteristics of the chemical that make it important 
to industry. So we end up eliminating the very people who have 
the most knowledge about a subject from those deliberations.
    I personally believe that is not the right way to go. I 
think we ought to control bias by having opposing views on 
either side. I think we ought to incorporate submissions by 
agencies like the ACGIH, when we do it in a rulemaking. The 
problem with the existing standard is that it incorporates 
updates to the rule, to the TLVs, not the ones that were 
adopted in 1983, and thus those of us who are really interested 
and who may have specialized knowledge about it are precluded 
from participating and validating the work that the TLV 
committee does.
    So with that, Mr. Chairman, I will stop and be happy to 
take any questions.
    [The prepared statement of Mr. Sarvadi follows:]

  Prepared Statement of David G. Sarvadi, Esq., Keller and Heckman LLP

    Good morning. Mr. Chairman, Members of the Committee, and invited 
guests, thank you for the opportunity to participate in this important 
proceeding.
    My name is David Sarvadi. I am an attorney with the Washington, 
D.C., law firm of Keller and Heckman LLP, and I am here to express 
support for H.R. 5554, the Workplace Safety and Health Transparency 
Act. I also have some suggestions to improve the bill. At Keller and 
Heckman LLP, we represent and assist employers in meeting their 
obligations under a variety of federal and state laws, as well as 
international treaties and the laws of Canada, Europe, and many 
countries of the Far East. In particular, we help clients maintain 
progressive health and safety programs intended to protect their 
employees in their workplaces, as well as to comply with national and 
international health and safety laws and standards. The Occupational 
Safety and Health Act is the primary focus of our compliance assistance 
here in the U.S.
    I am appearing in this hearing on my own behalf, and any views 
expressed herein should not be attributed to my firm, my partners, or 
any other entities, including any of our clients. I am here solely as a 
person with a keen interest in the topic of occupational safety and 
health.
    First and foremost, this bill is important because it affirms an 
important fundamental characteristic of modern American government: 
that citizens affected by OSHA's regulations have the opportunity to 
participate in the process that will determine the standard to which 
they will be held. All of us benefit by such participation, and in my 
experience, people all over the world admire and envy our open system.
    The problem the bill seeks to correct is the result of an 
acrimonious debate over alleged industry bias and influence in science 
that has been going on for more than 25 years. Some see the solution in 
attempting to completely eliminate bias by prohibiting participation by 
individuals with certain characteristics, most notably an alleged 
financial interest by being affiliated with an affected party, either 
as an employee or as a consultant. The presumption is that people whose 
financial support comes from public sources are free from undue 
influence, an egregiously erroneous assumption.
    Bias is a fact of life for all human beings. We all bring 
individual experiences and prejudices, learning and judgments, to a 
decision-making process, and while it is important to know about the 
various interests that motivate participants, the best way to offset 
bias is to have a transparent process where bias can exposed and 
attacked, and its influence can be limited. That means an open, 
transparent, and inclusive process must be the touchstone of public 
policy, especially when it comes to science-based decisions.
    Our judicial system, and to a certain extent, our legislative 
system, seeks to obtain the best and most likely true result through 
the competition of advocacy in an open forum. It is unclear to me why 
some scientists think that such a process is inapt for applying 
scientific judgment to public policy. Indeed, even ostensibly objective 
scientists have their own biases, driven in part by the need to find 
positive results so they can be published and funded in the future.
    Worse, by excluding from the discussion people who have direct 
experience in a particular area, we reduce the ability to understand 
complex yet solvable problems. If we were to apply the current approach 
to selecting people for various public policy scientific panels to our 
personal lives, we would not, for example, ask a surgeon to advise on 
the need for the surgery. Yet it is obvious that the surgeon as been 
trained and has the specific experience we need to inform the judgment 
inherent in all decisions that involve extrapolation and inference.
    In the public policy realm, some scientists have even claimed to 
find it necessary to be disingenuous to achieve their ``better'' 
objective. One such scientist was quoted as having to choose between 
being honest and being effective! \1\ I do not believe that our public 
policy is better because one group is more effective if their efficacy 
is based on fundamental dishonesty. And who is to say that such a 
scientist's view results in better public policy?
---------------------------------------------------------------------------
    \1\ ``[A]s scientists, we are ethically bound to the scientific 
method, in effect promising to tell the truth. The whole truth, and 
nothing but--which means that we must include all the doubts, caveats, 
the ifs, ands, and buts. On the other hand we are not just scientists, 
but human beings as well. And like most people we'd like to see the 
world a better place, which in this context translates into our working 
to reduce the risk of climate change. To do that, we need to get some 
broad-based support, to capture the public's imagination. That, of 
course, entails getting loads of media coverage. So we have to offer up 
scary scenarios, make simplified, dramatic statements, and make little 
mention of any doubts we have. This ``double ethical bind'' we 
frequently find ourselves in cannot be solved by any formula. Each of 
us has to decide what the right balance is between being effective and 
being honest. I hope that it means both.'' But apparently honesty is 
not an essential ingredient. Discover Magazine, October 1989, page 47. 
Copy attached.
---------------------------------------------------------------------------
    We need to be vigilant about scientific misrepresentation. Dr. 
James L. Mills, a researcher with the National Institute for Child 
Health and Human Development, described the techniques as ``Data 
Torturing'' and classified it as two types: Opportunistic, wherein 
scientists manipulate standards of statistical significance in order to 
create apparently valid results, and Procrustean, wherein the scientist 
generates positive results by redefining exposure or other aspects of a 
study to again create artificial results.
    My own training and education includes a Master's of Science Degree 
in Hygiene from the department of Occupational Health at the University 
of Pittsburgh's Graduate School of Public Health, so I started life as 
a budding scientist. Among my professors at Pittsburgh was Henry Smyth, 
a world-renowned toxicologist and one of the founding members of the 
American Conference of Governmental Industrial Hygienists (ACGIH) and 
the Threshold Limit Value (TLV) Committee on Chemical Substances. I 
received a law degree from George Mason University in 1986, and have 
been a certified industrial hygienist since 1978. I joined Keller and 
Heckman LLP in 1990. Since about the mid-1990s, I have been an 
associate member of the ACGIH, and as such, have never had the 
opportunity to vote on the adoption or creation of the TLVs.
    My professional experience includes having worked as the Director 
of Industrial Hygiene for a large company in the chemicals and allied 
products industry, as well as a consultant while in law school. Early 
in my career, I became familiar with the then current members of the 
TLV Committee, including among them Herbert Stokinger, who was the 
chairman and another giant of the profession to whom I looked for 
guidance. The Committee's operation today bears little resemblance to 
the collegial process and symbiotic relationship between industry, 
academia, and government scientists that existed in the 1970s.
    Indeed, at one point during that time, I initiated in my company 
the petition to the TLV Committee to establish a standard for a 
chemical that we manufactured, providing the Committee with all that we 
knew about the chemical at the time. The information included, if 
memory serves, information from animal studies that others in the 
company had contracted with a testing laboratory to conduct. We 
communicated with the Committee, and answered their questions and gave 
our opinions. This was all done on an entirely voluntary basis, knowing 
that the level established would be low, and that it would be a 
challenge to meet the standard. But we felt we needed the assistance of 
the Committee's expertise to validate our internal assessment through 
the eyes of a group of experienced toxicologists.
    In contrast to that experience, a few years ago, I represented a 
trade association of industrial manufacturers who were directly 
affected by several proposals that had been initiated by the TLV 
Committee. We were more than a little surprised to find that the draft 
documentation of the TLV proposed was literally awash with errors, 
which we identified and brought to the attention of the full committee. 
I personally read both the draft documentation of the proposed TLV and 
all of the cited papers, with which I was very intimately familiar. The 
errors were fundamental, including misrepresentations of what the 
authors of the cited papers actually said, omitting relevant and much 
more recent papers, and simply getting the entire subject wrong. We 
prepared a reply to the Committee, pointing out the errors, directing 
their attention to the more recent papers, which we had previously 
submitted to the Committee, and asked for an opportunity to present our 
views. We received an acknowledgement that our submission had been 
received, but every attempt to seek an audience with the committee to 
present our views, and to discuss the issues, was rejected, and we 
never received a response to the specific criticisms we made. This is 
not the kind of process designed to instill confidence that a fair 
hearing of one's views will result.
    I believe that this experience, and that of others with which I am 
familiar, along with the avowed position of the ACGIH that it is not a 
consensus organization and does not purport to conduct its TLV reviews 
in compliance with the fundamentals of due process, means that neither 
OSHA nor any other government agency or organization, including the 
courts, should any longer rely in any way on the recommendations of the 
Committee. I in no way want to comment on the integrity of the 
individual Committee members, as I know what it means to be a committed 
volunteer in an effort like this. But long experience in many other 
fields has shown that open, transparent processes uniformly produce 
better and more acceptable results than private negotiations among 
insiders in the back room. Trust is a fleeting commodity, and its loss 
imposes long term costs. Renewing it requires a willingness to let all 
of one's actions and decisions to be examined in excruciating detail, 
and ACGIH has been unwilling to pay the price for renewed confidence in 
their procedures and practices.
    Note that the TLVs are not subject to any kind of peer review 
process. If the TLV Committee decided to submit the Documentation as a 
paper to a peer-reviewed journal, at least the patina of third party 
review and objectivity would exist. In the present system, we simply do 
not know whether the person or persons who prepared the papers have any 
relevant qualifications, whether they actually read the papers they 
summarized and cited, or had inherent bias that was not countered by 
controls or systems in the Committee process. My more recent 
experience, and that, I understand, of others, is that the current 
situation at the Committee is unreliable, and in the absence of 
transparency and openness, cannot be repaired. The attitude is simply 
one of ``trust us, we're scientists.'' This is not sufficient.
    I know what an effort it is to perform the kind of literature 
review that the development of an occupational health standard entails. 
In one of my former positions, I was the principal author under a 
contract with the National Institute for Occupational Safety and Health 
(NIOSH) working on a criteria document on a group of chemicals called 
secondary and tertiary amines. There were over 9000 published 
scientific papers, including a large number from the Russian literature 
that we had translated, and I read every one. My job was to prepare the 
summaries of the papers, and to synthesize, under the supervision of 
Ph.D.s and NIOSH scientists, the summary of the toxicity of those 
chemicals. The objective of the criteria document was to establish safe 
levels of exposure, along with information on methods of control and 
other technical issues. So I feel that I understand, perhaps better 
than other witnesses, both the scope of the task and its difficulty. I 
also understand how important it is to get it right.
    There is an equally important aspect that OSHA recognition of the 
TLVs and other similarly developed positions creates. The imprimatur of 
governmental recognition and sanction via recognition in OSHA standards 
and in its rulemaking processes gives undue authority to the 
pronouncements of essentially private individuals, possibly far above 
what the scholarship that goes into preparing such documents would 
otherwise warrant. For example, in part because of OSHA's sanction of 
the TLVs as potentially authoritative, experts can rely on those 
standards in testifying in court. If the reliance on these standards is 
misplaced because they are based on biased, factually wrong, and 
inherently unreliable analyses, how can a fair result obtain? These 
standards find themselves in wide use in just this way in proceedings 
in court, at the state level in setting air quality standards, and so 
on, in spite of the ACGIH disclaimer that they are not to be used as 
legal standards denoting safe from unsafe environments.
    It is not that there are not viable alternatives. Several 
organizations, including the American Society for Testing and Materials 
(ASTM), American Industrial Hygiene Association Workplace Environmental 
Exposure Limits Committee, and several American National Standards 
Institute (ANSI) committees purport to adopt standards in an open, 
consensus-based process. Yes, it is expensive and takes time. But good 
work always does. Coupled with the nature of the ACGIH and other like 
organizations' penchant for secrecy, we can no long afford the luxury 
of allowing OSHA to rely on non-consensus organizations. Thus, I 
strongly support the proposed statutory change, with some suggestions 
for improvement.
    I believe that this proposal would allow OSHA to rely on consensus 
standards more fully, so long as it follows its normal rulemaking 
procedures under section 6 of the OSH Act. The statute already requires 
OSHA to justify deviating from consensus standards when it adopts 
standards on the same topic. This language would complement section 
6(b)(8) by requiring OSHA to acknowledge and identify true consensus 
standards organizations and bodies, so that both OSHA and the regulated 
community can have faith in the standards OSHA adopts. Essentially, 
this bill merely says that Congress was serious when it spelled out 
which groups can wear the label of a ``consensus'' organization.
    Note that OSHA is not permitted under current regulations governing 
the Federal Register to incorporate by reference updated versions of 
standards from third parties. Were OSHA to update the incorporated 
standards, it would need to do so in a rulemaking. Provided that the 
standards setting organization maintained its commitment to due 
process, a presumption in favor of the standard might be warranted, and 
the rulemaking could be abbreviated. I can provide specific language at 
a later date if the Subcommittee so desires.
    I have reviewed the specific language of the bill, and find that 
the proposal is essentially sound. The one potential pitfall that needs 
to be addressed is to prevent OSHA from allowing superficial 
conformance with consensus procedures, when in fact the effort was 
anything but a good faith effort to involve all who might have an 
interest in participating. There are examples of such failures.
    A good example was the unfortunate effort by the American National 
Standards Institute (ANSI)-sanctioned Z-365 Committee on Upper 
Extremity Disorders. After more than ten years of activity, the 
failures of the Committee and the secretariat to meet rudimentary 
consensus standards--publication of minutes of the meetings, 
inappropriate classification of members as to representation, 
inadequate representation of interests on subcommittees and review 
panels, among others--the ANSI Executive Standards Council ordered the 
secretariat to review the record for compliance with ANSI policies and 
procedures on representation, participation, appeals of committee 
decisions, and other procedural irregularities. Those failures led the 
Executive Standards Council to require that the first standard 
submitted by the Committee be subject to an audit by ANSI, according to 
the procedures outlined in the letter to the secretariat.
    This points up the need for OSHA to be sure that any finding it 
makes be based not on a superficial review of nominal procedures, but a 
finding that in fact the procedures protecting due process have been 
followed, and that all interested parties have, in fact, been heard. 
People who have been excluded from such processes need to be able to 
raise their objections to OSHA to assure more than nominal compliance.
    It is good that the language of the bill in section 6(a) makes the 
action of the Secretary final agency action, the basis of which would 
be published in the Federal Register. This is a necessary and proper 
step to assure that the Agency has made a good faith effort to assure 
compliance with consensus procedures and concepts. I would suggest some 
relatively important but in my view minor revisions to the language.
    In section 6(a), I would add the words, ``rely on,'' between 
``promulgate or incorporate'' in the first sentence. Standards or other 
scientific documents prepared by private organizations should have no 
more standing than their inherent persuasiveness warrants.
    The language in the bill that would apply these same standards to 
state plans under section 18 of the OSH Act is equally important, but 
perhaps it should be clarified that it would apply similarly only to 
standards the states adopt that are developed by third parties. Many 
states now adopt the TLVs as update Permissible Exposure Limits (PELs) 
by rulemaking, without understanding or investigating the underlying 
rationale for the standard.
    Employers are not simply seeking standards that are lenient. As I 
mentioned above, many employers for many years have sought to ``do the 
right thing'' by participating in the process of developing consensus 
standards and then adopting them. Indeed, nearly all of OSHA's early 
standards were derived from consensus standards that had been adopted 
by progressive employers over the previous 50 years. But if OSHA and 
MSHA or other agencies are going to rely on those standards as a 
substitute for rulemaking, then there needs to be real openness, 
transparency, and opportunity for real an effective participation by 
all affected parties.
    No one can force ACGIH to conduct its Committee work in an open 
process, nor should we attempt to do so, so long as the Committee's 
work product is not used to establish legal limits on behavior. 
Likewise, other organizations, such as the International Agency for 
Research on Cancer (IARC), whose proceedings are closed, must have 
their work product subjected to the test of public review and comment 
before government agencies use them to impose sanctions and standards 
of care.
    Thank you for the opportunity to make my views part of the record. 
I look forward to taking any questions you might have.
                                 ______
                                 
    Chairman Norwood. Thank you very much.
    Tell me, following up on exactly what you said, because I 
totally agreed with what you said, there is nothing wrong with 
having the opinion, for example, and this is Charlie's view, of 
the American governmental hygienists. There is nothing wrong 
with that.
    What is wrong with it, it seems to me, is that is the only 
opinion that OSHA takes in. Why couldn't OSHA listen to what 
they have to say? Don't question it; maybe it is valid; maybe 
it's not, but nobody knows other than some people over at OSHA.
    What is wrong with everybody having input into this 
rulemaking process?
    Mr. Sarvadi. Actually, Mr. Chairman, I think that is what 
we are required to do under the law in the United States.
    Chairman Norwood. Thank you. I do, too.
    Mr. Sarvadi. I agree with you that the people at the ACGIH 
as a group, as a committee, have every right to participate in 
the rulemakings and make their views known, present their 
views, and defend their views.
    Chairman Norwood. Yes.
    Mr. Sarvadi. And they should. At the same time, we should 
not give their views undue influence or undue deference because 
of the fact that they are not telling us how they go about it.
    Chairman Norwood. When OSHA incorporates their views, they 
are the only ones that have an opinion. Aren't they?
    Mr. Sarvadi. Absolutely. You have no opportunity to 
question the conclusions that the committee reaches, and worse, 
OSHA's imprimatur gives the committee a patina of believability 
and credibility.
    Chairman Norwood. Yes, it does.
    Mr. Sarvadi. It is undeserved at this time. Unless they are 
able to defend their views in the open debate on the science 
that is involved, I don't believe that they should be given any 
credibility whatsoever, just as I should not be given any 
credibility if I am not willing to make my views known publicly 
and to defend them in an open forum.
    Chairman Norwood. Well, two of you, I think, are attorneys. 
Is that correct? You are not, Mr. Casper?
    Mr. Sarvadi. I am, Mr. Chairman.
    Chairman Norwood. What actually happens when you go into 
court as a defendant on this kind of thing? What does the 
plaintiff do, having considered that you have a rule that has 
been incorporated by reference, and you are going into court 
over that subject?
    Mr. Sarvadi. In most states, Mr. Chairman, there is not an 
absolute recognition of an OSHA standard as a per se rule of 
negligence. Typically, most states allow introduction of 
standards like OSHA standards as evidence that can be 
considered by the trier of fact as to whether or not there has 
been negligence of the duty that the defendant would owe to the 
plaintiff.
    More importantly, though, in the context of the rulemakings 
and court proceedings is the fact that the TLVs are given 
credibility so that expert witnesses who are testifying can 
point to the TLVs as evidence of safe or unsafe circumstances 
without having to demonstrate that in fact the TLVs are based 
on accurate and reliable information.
    Consequently, we end up, for example, in my experience with 
one group of clients that I had that were affected by a TLV, I 
asked the engineers how that would affect the decisions that 
they made going forward in designing the equipment and the 
facilities and making changes in work practices for their 
employees as a result of the change in the TLV.
    The answer was the change in the TLV would result in 
setting a new lower standard that they would follow because of 
the potential use of the TLV in litigation in the future. 
Rather than simply setting it at the TLV, the engineer uses a 
fraction of the TLV, either a quarter or half of the TLV, as 
the design standard because if you don't design to a lower 
level, the normal variation that occurs in equipment and 
operations can result in a higher exposure.
    The downside risk of having any exposure above the TLV or 
the PEL, whatever the standard may be, is so great that the 
engineers will in fact design to a lower standard so as to be 
sure not to exceed that level.
    Chairman Norwood. So these TLVs are used time and time 
again in the courtroom by expert witnesses?
    Mr. Sarvadi. Yes, sir, they are.
    Chairman Norwood. Just real quickly--and last question, Mr. 
Casper--to what extent does the fear of private litigation 
impact your members' decisions to go beyond updating MSDS 
sheets to reflect updated TLVs? Does the fear of private action 
drive your members to adjust their operations even when there 
may be no concrete scientific basis for action? Can you 
describe that?
    Mr. Casper. Mr. Chairman, I cannot describe what our 
members consider as far as fears of litigation are concerned. 
What I can say is the fears that we all have when we look at 
the possibility of tightening of the permissible exposure limit 
for silica, for instance. In the event that it is not called 
for that by OSHA, presumably, it would not be rooted in good 
science.
    What we anticipated would happen when we looked at this in 
2003 when OSHA floated its ideas on a possible new silica rule, 
was that we would see a number of plants probably having to be 
shut down because of anticipated costs to comply with the new 
rule that would perhaps reduce the silica PEL down perhaps to 
.05 milligrams per cubic meter squared.
    The prospect of shut-down plants would mean not only more 
layoffs in the industry, more workers losing their jobs, but 
also a further tightening in consumer access to brick products 
to put on their new homes.
    Chairman Norwood. Why would you shut down? What were you 
scared of?
    Mr. Casper. Because of the incredible costs; because of 
what we foresaw would be very significant costs from a very 
bad, aggressive OSHA rulemaking that would include a reduced 
PEL, perhaps down to .05.
    Chairman Norwood. Would it be cost of litigation or is it 
cost of changing your operation?
    Mr. Casper. Operations changes. I can't speak to the 
litigation side.
    Chairman Norwood. OK.
    Mr. Casper. But as far as operations are concerned, for 
instance, very expensive engineering controls, the utility of 
which in terms of being able to get the exposure limit down to 
.05 is not necessarily even certain. The costs of that would be 
significant, and in some cases we anticipated, given how little 
information OSHA shared with us when they came out with that 
draft rule in the fall of 2003, would have resulted probably in 
the shutdown of a number of our plants.
    Chairman Norwood. Mr. Owens, you are now recognized for 
questions.
    Mr. Owens. Dr. Michaels, you described the situation as a 
possible public health crisis. I alluded to Nero and fiddling 
in Rome before. Is our government in the position of Nero 
fiddling while the water and the equipment to put out the fire 
is there, but we are not willing to use it; the apparatus of 
government is not in place to take advantage of the science 
that exists.
    That is a gap which is a moral issue, it seems to me. 
People will be dying in larger numbers if we don't use some 
kind of standard, and the knowledge exists. The implication is 
that only after OSHA has gone through its proper procedures 
should we use standards.
    Are we willing to beef up the staff of OSHA with the 
expertise that is needed, no matter what it costs, in order to 
facilitate the rapid utilization of new knowledge to protect 
people from death and injury?
    Dr. Michaels. Mr. Owens, you raise a good concern. I am not 
an attorney, but my reading of this law is not that it merely 
stops OSHA from referring to recommendations made by 
organizations where there is a decision made without the input 
of impacted industries, but it actually says that unless the 
impacted industry agrees, essentially comes to a consensus, you 
can't use it, which means the national toxicology program, for 
example, which is a very important program run by the National 
Institute for Environmental Health Sciences, which has public 
hearings to designate carcinogens.
    It has designated, for example, beryllium as a carcinogen. 
The beryllium industry doesn't agree. Well, shouldn't that 
information be given to workers and to the public? I think it 
is very important. If there is a concern here about 
organizations that don't accept the input of impacted 
industries, that is worth discussing, but this is written so 
broadly that we essentially bar OSHA from using information 
from a wide range of scientific organizations that are bringing 
the newest science out. I think that really is problematic.
    Mr. Owens. Dr. Sarvadi, you seem to be the voice of 
reasonable compromise here. Would you be willing to give us an 
estimate as to what H.R. 5554 needs in order to carry out the 
appropriate merger of private science with governmental 
oversight in hearings and regulation? H.R. 5554 does not 
provide any appropriation that would facilitate new staffing. 
Would they be able to do the kind of thing that you think 
should be done?
    Mr. Sarvadi. Actually, Mr. Owens, I do think that they 
could do it with the present system. There is an example.
    Mr. Owens. Present staff?
    Mr. Sarvadi. Yes, with the present staffing. There is an 
example already in place at OSHA called the Nationally 
Recognized Testing Laboratory System. Under that regulation, 
organizations apply to OSHA to become recognized as a 
laboratory for purposes of testing for compliance with in fact 
third-party standards like ANSI standards on electrical safety. 
That is just one example. There are many others.
    In that process, OSHA actually goes through a rulemaking to 
determine whether or not the organization has the resources and 
the procedures in place in order to be qualified as a testing 
laboratory. I could see a similar parallel system set up where 
OSHA would vet organizations who purport to put forward 
consensus standards and qualify them in one way or another as 
consensus organizations.
    And then subsequently in a rulemaking, if OSHA wanted to 
rely on that standard, they would be able to point to the fact 
that they have qualified this organization in advance, and then 
subject that organization to objections by interested parties 
if the organization had deviated from those procedures in the 
past.
    Mr. Owens. So that OSHA has no excuse for the great delay 
in facilitating rulemaking on many of these issues?
    Mr. Sarvadi. I am sorry. I didn't quite catch that.
    Mr. Owens. The number of standards that are left hanging 
out there, they have not been dealt with. Rulemaking is not 
taking place, and yet dangers have been certainly highlighted 
by scientists. There is a great delay. Are you saying that 
there is no excuse for that? That OSHA has the resources and 
the staff to move?
    Mr. Sarvadi. I would take issue with the suggestion that 
somehow OSHA has not adopted a great number of standards that 
are somehow missing in the workplace. Mr. Kucinich read a list 
of standards that have been removed from OSHA's agenda a few 
minutes ago.
    One important thing to remember about the list that he read 
is that there are in fact standards in place right now that 
OSHA does enforce on a daily basis that affect nearly all of 
those subjects that he referenced. So the question isn't 
whether we have standards. It is whether the standards that we 
have in place are sufficient and whether we need to enhance 
those.
    Mr. Owens. I already submitted a list for the record, which 
is quite long, which I won't go into at this point. Mr. 
Kucinich just touched the surface, really.
    I would like to know from you, Dr. Michaels, what are cases 
that you cite. You said there were two cases lost in court. Can 
you explain the facts of that?
    Dr. Michaels. The various industries, and I will have to 
provide this to the record, but various industries have sued 
the ACGIH, the American Conference of Government Industrial 
Hygienists, because essentially it claimed to act like a 
governmental body without having their governmental function.
    My understanding is both those cases were lost in the 
court, and the ACGIH continues top be able to put out 
recommendations, because all they do is put out 
recommendations. How OSHA or others use those recommendations 
is up to OSHA and those organizations.
    The ACGIH is an organization, as Mr. Sarvadi said, of 
volunteer scientists who work very hard and do the best job 
they can and make a tremendous contribution. It is a shame that 
there is an effort to essentially both put them out of the 
business and to make sure that OSHA doesn't use them.
    Mr. Owens. For the record, you don't know what those cases 
are?
    Dr. Michaels. I didn't bring the information with me, but I 
could certainly provide that for the record.
    [The information referred to follows:]

       School of Public Health and Health Sciences,
                          The George Washington University,
                                     Washington, DC, July 10, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: Thank you for your request to provide 
supplemental testimony for inclusion in the record for the June 14, 
2006 legislative hearing on ``Addressing the Concerns about the U.S. 
Department of Labor's Use of Non-Consensus Standards in Workplace 
Health and Safety.''
    You have requested information regarding lawsuits involving the 
American Conference of Governmental Industrial Hygienists (ACGIH). I 
have attached two documents that contain information on litigation 
pursued by the Patton Boggs law firm against the ACGIH:
    1. A page from the July 22, 2004 issue of ``Brick News Online,'' a 
publication of the Brick Industry Association (BIA). The article states 
that ``BIA has been asked to help fund litigation to stop a non-profit 
group [the ACGIH] from establishing a new, unsupportable limit on 
employee exposure to respirable silica'' and notes that a BIA 
subcommittee asks ``member companies to consider becoming a plaintiff' 
in the litigation. The article goes on to assert that the ``effort is 
being led by Henry Chajet, an attorney at Patton-Boggs (sic), who is 
soliciting interested companies and industries. Estimated costs for 
2004 are $570,000.''
    2. Information I have compiled on two lawsuits pursued by clients 
of the Patton Boggs law firm against the ACGIH.
    Thank you for the opportunity to add these materials to the 
legislative record.
            Yours very truly,
                                David Michaels, Ph.D., MPH,
  Director, the Project on Scientific Knowledge and Public Policy, 
                        and Research Professor and Acting Chairman.

 BIA Members Can Participate in Lawsuit to Bring Some Common Sense to 
                           Federal Rulemaking

For those interested, here's an opportunity for boosting fairness in 
        OSHA rulemaking
    BIA has been asked to help fund litigation to stop a non-profit 
group from establishing a new, unsupportable limit on employee exposure 
to respirable silica. The EH&S health and safety subcommittee discussed 
this, and asks BIA member companies to consider becoming a plaintiff in 
legal action seeking to force an injunction against the American 
Conference of Government Industrial Hygienists (ACGIH) over its 
substantial role in issuing a new threshold limit value for silica.
    ACGIH is a non-government entity heavily relied upon by agencies 
such as the U.S. Occupational Safety & Health Administration (OSHA) in 
making critical scientific determinations underlying comprehensive new 
rules for issues such as silica exposure. ACGIH refuses to abide by 
standard practices such as adherence to Federal data quality mandates, 
employ risk assessment, or submit its work to independent peer review. 
This failure risks putting regulated industries at a substantial 
disadvantage when new Federal rules are developed.
    Nevertheless, ACGIH findings are typically incorporated into 
regulations issued by OSHA and other agencies. Several years ago ACGIH 
determined that the permissible exposure limit (PEL) for silica should 
be cut from the current level of 100 micrograms per cubic meter of air 
down to 50. More recently, ACGIH expressed interest in further slashing 
that level to 25 micrograms per cubic meter of air. In all likelihood, 
implementation of these new levels would have an adverse impact on the 
brick manufacturing industry. At a time at which many observers believe 
that ACGIH's practices need to be reigned in, it appears that this 
litigation effort is a suitable place to start.
    The possible next step in this important effort would be the filing 
of a temporary restraining order against ACGIH.
    This effort is being led by Henry Chajet, an attorney at Patton-
Boggs, who is soliciting interested companies and industries. Estimated 
costs for 2004 are $570,000. Several BIA member companies voiced 
interest in contributing to the effort. BIA is not in a position to 
make a financial contribution at this time.
    BIA is requesting you consider contributing to this ambitious 
undertaking at bringing some common sense reform to the development of 
Federal rules that dramatically impact the costs of manufacturing 
brick. Companies interested in participating should contact Joseph 
Casper at (703) 674-1545 / [email protected]
Additional information about litigation filed against the American 
        Conference of Governmental Industrial Hygienists (ACGIH) by 
        clients represented by the law firm Patton Boggs
    I am aware of at least two lawsuits filed against the American 
Conference of Governmental Industrial Hygienists (ACGIH) by clients 
represented by the law firm Patton Boggs. The following information 
about these cases was obtained using the Federal Administrative Office 
of the Courts PACER system.
    1. Anchor Glass, et al v. ACGIH; Case No. 5:00-cv-00563-DF; Filed: 
December 1, 2000 in US District Court Middle District of Georgia.
    Plaintiffs: Anchor Glass Container Corporation; FMC Corporation; 
Solvay Minerals; The General Chemical Group, Inc.; Wyoming Mining 
Association; OCI Chemical Corporation. Plaintiffs' Counsel: Patton 
Boggs LLP Harris and James, LLP.
    Defendants: American Conference of Governmental Industrial 
Hygienists; Elaine Chao, Secretary of Labor; Tommy Thompson, Secretary 
of Health and Human Services (HHS); Alexis Herman, Secretary of Labor 
(applicable when case was filed in December 2000); Donna Shalala, 
Secretary of HHS (applicable when case was filed in December 2000).
    Defendants' Counsel: US Department of Justice; Hall, Bloch, Garland 
& Meyer, LLP Jones, Cork & Miller, LLP.
    Description of the Case: The records for this case were ``sealed'' 
as part of a confidentiality agreement. This makes it particularly 
difficult for the public to investigate independently the specific 
claims made against the ACGIH by the Plaintiffs. I have been able to 
learnt the history of the case, including the Plaintiffs' request for a 
temporary restraining order against the ACGIH, the US Department of 
Labor (DOL) and the US Department of Health and Human Services (HHS) 
with respect to a proposed threshold limit value (TLV) for sodium 
sesquicarbonate (also known as trona.) When the ACGIH (Defendant) 
agreed not to publish (prior to October 27, 2001) a new TLV for trona, 
the Plaintiffs withdrew their motion for a temporary restraining order 
from US District Judge Duross Fitzpatrick's order, dated April 4, 2001.
    Less than one month later, the Plaintiffs went back to federal 
court to file additional complaints against ACGIH, DOL and HHS, 
including a request for ``declaratory and injunctive relief to prevent 
Defendants from promulgating, adopting, using, publishing, relying 
upon, or enforcing a TLV for trona * * * '' ' The Plaintiffs made a 
number of claims against the ACGIH, DOL and HHS; some were dismissed by 
the Court (e.g., unconstitutional delegation of authority, failure to 
follow statutory rulemaking procedures) others were allowed (e.g., 
demonstrating standing, stating a claim.) While discovery was ongoing, 
the parties decided to settle the case.
    2. International Brominated Solvents Assoc, et al v. ACGIH; Case 
No. 5:04-cv-00394-DF); Filed: November 17, 2004 in US District Court 
Middle District of Georgia.
    Plaintiffs: International Brominated Solvents Association Aerosafe 
Products, Inc.
    Plaintiffs' Counsel: Patton Boggs LLP Harris and James, LLP.
    Defendants: American Conference of Governmental Industrial 
Hygienists Elaine Chao, Secretary of Labor; Tommy Thompson, Secretary 
of Health and Human Services (HHS).
    Defendants' Counsel: US Department of Justice; Galland, Kharasch, 
Greenberg, Fellman & Swirsky Greenberg Traurig; Jones, Cork & Miller, 
LLP.
    Description of the Case: The Plaintiffs filed their original 
complaint in November 2004, seeking ``declaratory and injunctive relief 
to prohibit the ACGIH * * * from considering, creating, publishing, 
promulgating, adopting, using, or recommending TLVs'' for n-propyl 
bromide (nPB), copper, silica and diesel particulate matter'' and 
prohibiting DOL and HHS from ``allowing their officials and employees 
to seek, suggest, use, adopt, rely upon, promulgate, or enforce TLVs'' 
for these same substances. The Plaintiffs claimed, among other things, 
that ACGIH, DOL and HHS violate the Administrative Procedure Act (APA) 
and the Federal Advisory Committee Act (FACA), do not disclose TLV 
authors, credentials or conflicts of interest, and act in secret. The 
Plaintiffs filed a motion for a temporary restraining order to prevent 
ACGIH from ``considering, creating, publishing, promulgating, adopting, 
using, or recommending a TLV'' for these substances. On November 26, 
2004, federal district judge Hugh Lawson denied their request.
    As the case continued, the Plaintiffs continued to assert that 
ACGIH, DOL and HHS violated FACA. In March 2005, federal judge Duross 
Fitzpatrick again dismissed these claims, along with the Plaintiffs' 
assertion that ACGIH is an agency subject to the Administrative 
Procedure Act. The Court ruled, however, to allow the Plaintiffs' case 
to move ahead, with respect to DOL's reference to ACGIH's TLVs and the 
Plaintiffs' assertion that these remains subject to judicial review 
under the APA. The judge noted, this ruling ``says nothing about 
whether the federal defendants have acted unlawfully, nor does it 
otherwise speak to the merits of the APA claim. Rather, it merely 
constitutes a threshold finding by the Court that Plaintiffs may 
proceed to discovery on this claim.''
                                 ______
                                 
    Mr. Owens. We would appreciate that, so provide it for the 
record. We have a number of cases, and we don't know which one 
you are referring to. You were referring to factual 
information, though.
    Dr. Michaels. Yes.
    Mr. Owens. It was not something that was conjured up for 
some partisan reason.
    I have no further questions at this time, Mr. Chairman.
    Chairman Norwood. Thank you, Mr. Owens.
    Mr. Sarvadi, can you talk about those two cases?
    Mr. Sarvadi. I can talk about the first of the two cases as 
having been settled. That was a case that involved the 
refractory ceramic fibers industry and a couple of other 
industries. The case in fact was settled by agreement in which 
the committee, the TLV committee, withdrew, if I remember 
correctly, the TLVs that were affected on the grounds that they 
had not done an adequate job of substantiating the positions 
that they had taken.
    The current case, there is one other case that is currently 
underway. I believe discovery is nearly completed. There have 
been some preliminary rulings in the case involving ACGIH that 
have gone in favor of the organization. The case is still very 
much alive, and turns on the question of whether or not these 
opinions which in some sense may be seen to disparage products 
manufactured by various interests, are in fact protected in 
some way or in fact open the committee and the ACGIH up to 
legal liability for not having done an adequate job on the 
science.
    So that case still is proceeding. The stage it is at is 
that I believe they have finished discovery and are in the 
process right now of deciding what the next step will be.
    Chairman Norwood. Are those the same two cases that Dr. 
Michaels just said were lost?
    Mr. Sarvadi. I believe they are. Those are the only two 
cases that I know of where the ACGIH was sued by private 
organizations over the quality of the work or the nature of the 
TLV.
    Chairman Norwood. Well, let the record show that, that 
those cases are not lost.
    Dr. Michaels. Can you cite the cases? Do you have a 
citation for the cases?
    Mr. Sarvadi. No, but I can certainly provide it for the 
record.
    Chairman Norwood. Mr. Sarvadi, would you provide us 
information regarding those two cases for the record?
    Mr. Sarvadi. Yes, sir. I will.
    [The information referred to follows:]

                            Keller and Heckman LLP,
                                             1001 G St. NW,
                                     Washington, DC, July 12, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: Thank you for your letter and kind words. As 
you requested, I am providing you with information regarding the two 
lawsuits referenced during the June 14 legislative hearing that concern 
the standard setting procedures of the American Conference of 
Governmental Industrial Hygienists (``ACGIH''). In fact, there have 
been three lawsuits, beginning with the case of Refractory Ceramic 
Fibers Coalition, et al., v. American Conference of Governmental 
Industrial Hygienists, Inc., from the United States District Court for 
the Northern District of Georgia. The other two are Anchor Glass, et 
al. v. American Conference of Governmental Industrial Hygienists, et 
al. and International Brominated Solvents Association, et al. v. 
American Conference of Governmental Industrial Hygienists, et al. The 
last is still in litigation.
    The Refractory Ceramic Fibers Coalition (``RCFC'') filed suit 
against ACGIH in December 2000 based on its concerns about the TLV for 
refractory ceramic fibers, which suit was settled after a ruling by the 
judge that the TLVs were an exercise of free speech by the Committee 
and could not be made subject to prior restraint. However, the judge 
had not dismissed the underlying claim, based on defamation, against 
ACGIH, and that led to the settlement. As part of the settlement, ACGIH 
released a statement to clarify the meaning of its Threshold Limit 
Value (``TLV'') for refractory ceramic fibers (``RCF''), which speaks 
to the meaning of its TLVs in general.
    A copy of the statement from the ACGIH can be found at http://
www.acgih.org/Resources/press/rcfcrelease.htm. Overall, the statement 
emphasizes that ACGIH's TLVs are not intended for use as legal 
standards, as relative indices of toxicity, and that they should only 
be applied by persons trained in the discipline of industrial hygiene. 
ACGIH also agreed to review new data being prepared by the RCFC. The 
TLV was withdrawn. The RCFC has a website, www.rcfc.net, but no 
particular information about the suit was apparent when I checked it 
out.
    The other two cases are also from the United States District Court 
for the Middle District of Georgia, and are very similar in nature and 
are being heard by the same judge. The first case, Anchor Glass, et al. 
v. American Conference of Governmental Industrial Hygienists, et al., 
was settled between ACGIH when it ceased to be a party to the case on 
September 21, 2001. The case was dismissed with prejudice on February 
7, 2002.
    There was significant discovery in the case that supported the 
conclusion that ACGIH's TLVs in question were not adequately grounded 
in the underlying science and were not reviewed. Significantly, ACGIH 
withdrew the TLV at issue and published a notice stating that there 
were no health effects to support the TLV. Because the plaintiffs 
claimed that they had been promised a chance to submit data that were 
in development before the TLV was to be finalized, but which promise 
was not fulfilled, ACGIH also stated that its Subcommittee chair for 
the substance in question had acted improperly. Other provisions of the 
settlement cannot be disclosed.
    The other case, International Brominated Solvents Association, et 
al. v. American Conference of Governmental Industrial Hygienists, et 
al., is still active. Discovery was to be completed by June 30, 2006 
and dispositive motions are due on July 17. The Plaintiffs filed suit 
against the Defendants (ACGIH and federal defendants) in November 2004 
to prevent the adoption and enforcement of TLVs for four chemical 
substances: silica, copper, n-propyl bromide, and diesel particulate 
matter. In essence, the Plaintiffs challenge the way ACGIH adopts TLVs, 
and further challenge the acts of federal defendants who rely on those 
TLVs.
    The Plaintiffs are seeking declaratory and injunctive relief, as 
well as damages for anticipated reductions in profits, increased 
regulatory costs, and increased litigation exposure. They moved for a 
temporary restraining order to prevent ACGIH from approving the TLVs in 
question, but that motion was denied. ACGIH filed a motion to dismiss 
in response to each complaint, which was granted in part and denied in 
part. The Defendants then filed a Motion for Reconsideration, which was 
denied. As a result of the Court's rulings, the Plaintiffs are entitled 
to proceed with their APA claim against the federal defendants (Elaine 
Chao, Secretary of the U.S. Department of Labor, and Michael O. 
Leavitt, Secretary of the U.S. Department of Health and Human Services) 
and their claim against ACGIH for violations of the Uniform Deceptive 
Trade Practices Act (``UDTPA'').
    The Plaintiffs state four claims.: (1) the TLVs in question were 
adopted by ACGIH and enforced by the federal defendants in violation of 
federal and state law, so the lawsuit seeks to enjoin their adoption 
and enforcement; (2) none of the information provided by the public is 
considered in the decision to adopt a final TLV, even though the ACGIH 
invites public comment; (3) the TLVs are false and deceptive because 
they are not supported by credible science; (4) and that undisclosed 
ACGIH members draft the TLVs in secrecy.
    The Plaintiffs' claim against ACGIH for violations of Georgia's 
UDTPA is that ACGIH, by adopting TLVs that were not scientifically 
justified, engaged in deceptive trade practices. The Plaintiffs' APA 
claim against the federal defendants is that they wrongfully relied on 
and enforced ACGIH's TLVs because they were a ``tainted work product.'' 
It will be interesting to see how this case turns out.
    I hope this information answers your questions and provides 
background on the continuing controversy over the role of the ACGIH in 
our public regulatory process. As always, should you have any further 
questions, please do not hesitate to contact me.
            Respectfully submitted,
                                          David G. Sarvadi,
                                            Keller and Heckman LLP.
                                 ______
                                 
    Chairman Norwood. Mr. Sarvadi, ACGIH has a disclaimer 
saying, you know, we have put these out, but don't worry, we 
are not responsible or we are not going to take responsibility 
for them. How can we reconcile that disclaimer with the fact 
that these standards are becoming Federal law or Federal 
regulation? I don't understand that.
    Mr. Sarvadi. I think that the actual result of the 
disclaimer was an attempt by the organization to distance 
itself from the regulatory process. That disclaimer has been 
around for a long time. Prior to the adoption of the 
Occupational Safety and Health Act, the TLVs were in fact 
adopted as legal limits under the Walsh-Healey Public Contracts 
Act. There were some state organizations that did the same 
thing.
    I think it is important to recognize that the committee did 
not view and does not view the TLVs as arbitrary safe/unsafe 
limits; that there is a considerable amount of judgment 
involved in deciding how to apply the TLVs in the occupational 
setting. The rest of the disclaimer is that that should be done 
by professional industrial hygienists who understand the way in 
which they are derived and the basis.
    The problem we have today is not that the TLVs could not be 
used effectively. The problem is that we don't understand how 
the TLVs are developed. There are too many examples anymore of 
TLVs where the underlying scientific work, to just be blunt 
about it, was shoddy. I have personal experience with one case 
involving that.
    Chairman Norwood. Tell me how that affects clients when 
that happens?
    Mr. Sarvadi. Well, it affects the clients directly because 
they have to change their operations. They have to communicate 
to their customers about the TLV through the MSDS. And they 
have to encourage their customers to try to comply with the 
TLV. Now, some will argue that the TLV being out there, even if 
it is wrong, if it is low, it is not going to cause anybody any 
harm because employees will be protected.
    I think it is important to understand that in any situation 
where we impose a standard on an employer or a company, it is 
the employees and the employer who have to pay for those 
changes that are to come about, and employees get less in the 
way of wages or benefits or other compensation as a result of 
having to make that kind of investment.
    So we should always make sure in my view that whatever 
standards we impose are well worth the effort because we are 
actually making decisions for other people about how they 
should spend their livelihood and their time. I think that is a 
decision that they should make, and not us.
    Chairman Norwood. Well, I agree with you that there have to 
be standards. There is no question about that. That is not part 
of what this is all about. However, the standards that we set 
that affect people's lives positively and negatively, by the 
way, really need to be done out in the open. That is really all 
we are talking about here.
    We are not even talking about not hearing from the 
governmental hygienists. We are happy to have their thoughts on 
the matter, but there is no reason that should become law made 
by people that are not elected officials and are actually 
bureaucrats in the Federal Government, without everybody else 
having an opportunity to have input. My guess is the reason 
they want to do it in secret is they think they actually can't 
get their way in the sunshine. That is my guess.
    Are you a member or associate member?
    Mr. Sarvadi. I am an associate member of the ACGIH, yes. I 
am not permitted to be a full member because I work for the 
private sector.
    Chairman Norwood. But you are an associate member?
    Mr. Sarvadi. I am.
    Chairman Norwood. Well, you know, it is hard to hear all of 
it, but I have heard some really wild stories about how this 
committee comes together and they take about 7 minutes, ``Old 
Don over here wrote a new standard and he is a good guy, we 
have known him a long time, he was right on something 2 or 3 
years ago, let's just pass it on out.'' And OSHA picks it up, 
and all of a sudden we have a new law.
    Mr. Owens. Would the chairman yield?
    Chairman Norwood. Yes, sir.
    Mr. Owens. Mr. Sarvadi, is there a secret knock and a code 
word that you have to use to get in?
    [Laughter.]
    Mr. Sarvadi. Being an associate member, Mr. Owens, I am not 
privy to any of those secrets.
    [Laughter.]
    Chairman Norwood. Dr. Michaels, I read in your testimony 
that you were saddened and a little embarrassed by a statement 
I made during our earlier hearing in April. For the benefit of 
those not in the room that day--and I want to be sure I get it 
in this record, too--I said that the ACGIH is going to stop 
writing the laws of this land, and I am going to help them stop 
doing that if it is the last thing I do on this earth.
    I am sort of sorry you feel that way. That is the wrong 
emphasis, in my view. What you should be embarrassed about is 
the quality of the science that forms the basis of the ACGIH 
TLVs. Now, I say that assuming--and I don't want to assume 
this, but if you in fact are an expert witness, do you actually 
do the science when you promote a TLV? Or do you just simply 
take the work of the American governmental hygienists?
    Dr. Michaels. I don't follow your question. I am not 
promoting a particular TLV.
    Chairman Norwood. Well, when you go into court on the side 
of a plaintiff, you are saying to the judge, ``I am the 
expert.'' That is what an expert witness is. And when you do 
that, where do you get your information, to be an expert?
    Dr. Michaels. If I were to do that, I would actually go 
back and review the literature.
    Chairman Norwood. Oh, you go back and review it yourself?
    Dr. Michaels. Yes.
    Chairman Norwood. Are you a member of the governmental 
hygienists?
    Dr. Michaels. No.
    Chairman Norwood. But you do buy their books, these things 
that they put out?
    Dr. Michaels. Actually, no, and I am not here testifying on 
their behalf at all. I am testifying on essentially how the 
regulatory system can use this information.
    Chairman Norwood. I understand you are not here testifying 
on their behalf. You are testifying for money. I understand why 
you are there.
    Dr. Michaels. I am testifying here.
    Chairman Norwood. I am sorry?
    Dr. Michaels. I was referring to testifying here.
    Chairman Norwood. I am referring to testifying in court as 
an expert witness. When you go in there and you say, I know for 
sure this TLV should be whatever, or I am certain that is what 
it should be, where do you get that information?
    Dr. Michaels. I review the literature.
    Chairman Norwood. OK, so you review it yourself. You don't 
depend on the industrial hygienists' information in these 
books.
    Dr. Michaels. I wouldn't, if that is the question. But if I 
were an industrial hygienist at a workplace, I certainly would 
rely on them, as a recommendation. I would say, well, this is 
interesting information and they have reviewed the literature.
    I have a suggestion.
    Chairman Norwood. Yes, go ahead.
    Dr. Michaels. I have a thought, though, if the question is, 
``Is the ACGIH good science,'' why not ask the National Academy 
of Sciences to review them?
    Chairman Norwood. If they are finding good science, why 
don't they put it out in the open?
    Dr. Michaels. They have a process. What this legislation 
talks about is----
    Chairman Norwood. Now, tell me how you know about their 
process? You have to have a secret knock to get in.
    [Laughter.]
    Dr. Michaels. They are a group that says, we are going to 
put out a proposal; it will be a proposed. Again I am not an 
expert in the ACGIH process, but for several years they have 
sort of a provisional recommendation that they take comments, 
people send in comments, they meet, and they discuss it.
    Chairman Norwood. And about 7 minutes per regulation.
    Dr. Michaels. I have no idea if that is true, but this is 
not just about ACGIH. It is about the National Toxicology 
Program. The International Agency for Research on Cancer has 
totally open meetings. Representatives of the industries 
involved send people. They discuss it all. The meetings are in 
public and the vote is taken.
    The problem is that if you don't like the ACGIH's science, 
why not get an independent group to review it? I think that 
would--should the National Academy of Sciences look at the 
science?
    Chairman Norwood. Thank you. Leave the questions up to the 
chairman, please, sir.
    Dr. Michaels. OK. What do you think about----
    Chairman Norwood. Why don't you respond to that, because we 
have had to correct some of this before.
    Mr. Sarvadi. Let me clarify one thing about the 
International Agency for Research on Cancer. In fact, they 
don't have open meetings. You have to be invited as an 
observer, if you are allowed into the room when they have the 
conversations. The process is just as closed and just as dark 
as the TLV process.
    In regard to the TLV process, I can tell you from personal 
experience, having reviewed a draft documentation, and Dr. 
Michaels is right about one thing: There is a proposal put out; 
they develop a draft documentation; and then they ask for 
comments. We reviewed a draft documentation.
    I personally reviewed every reference in the draft, the 
draft itself, and numerous other references that were related 
to the chemical in question. The draft documentation that I 
reviewed had so many factual errors and misrepresentations that 
it could only have been done by somebody who intended not to 
tell the whole story.
    And so when we filed our comments on the draft 
documentation, and criticized point by point the deficiencies 
in the draft, we were not told what happened. We were not 
congratulated on or thanked for the effort that we put forward. 
We only found out that the committee had acted on the 
submission when they withdrew the proposal. That is not the 
characteristic of an open dialog and debate that allows people 
with opposing views to come to agreement on what the actual 
answer is.
    I would suggest to you, Mr. Chairman, it is very important 
for scientists who at least ostensibly in the scientific 
method, agree to tell the truth, the whole truth, and nothing 
but the truth, to do it in an open fashion so all of us have 
the opportunity to see what they are doing. The reason I think 
that is important, and I am a little bit like Ronald Reagan 
when it comes to this, the scientists are telling us ``trust 
us.'' I will trust them, but I want to verify that trust.
    Chairman Norwood. I have only been up here in this town 12 
years, but I know darn well you can buy a study up here saying 
anything you want it to say. I am positive of that fact.
    I yield to Mr. Owens.
    Mr. Sarvadi. Mr. Chairman, there is one other thing I would 
like to clarify here.
    Chairman Norwood. Let me yield to Mr. Owens, and then you 
follow up.
    Mr. Owens. During your testimony, Mr. Sarvadi, you mention 
a situation where you read. Do you read Russian?
    Mr. Sarvadi. No, sir. I indicated that we had had the 
Russian articles translated by professional translators.
    Mr. Owens. You read a large number of articles.
    Mr. Sarvadi. I read over 9,000 articles, yes.
    Mr. Owens. And you talked about what kind of time and 
energy that it took.
    Mr. Sarvadi. Yes.
    Mr. Owens. Are you saying that that was the personal 
approach that you took and others scientists don't, are not as 
thorough?
    Mr. Sarvadi. No. What I was relating to you was my 
experience working as a researcher for a company that was under 
contract with the National Institute for Occupational Safety 
and Health to produce a review of the open literature on a very 
large topic. And that was in 1981.
    Mr. Owens. Do your colleagues do the same kind of thorough 
work, though?
    Mr. Sarvadi. I am sorry. I didn't catch that.
    Mr. Owens. Are you saying you don't think your colleagues 
do the same kind of work, as thorough a work?
    Mr. Sarvadi. No, what I am saying is I have seen specific 
examples in the ACGIH committee where they have not done that 
kind of detailed review, where the review has been superficial 
and inaccurate.
    Chairman Norwood. I don't have a problem with that. If that 
is how they want to run their outfit, that is none of my 
business. My problem with that is that none of us get to look 
inside of there and what they are doing, and the next thing I 
know is the law of the land. That is the problem.
    I don't understand why anybody here objects to OSHA 
following, first, the OSH Act, and second, other laws of this 
country regarding rules and regulations. It has to be an open 
process. Ever since the last 12 years, it has simply gone away. 
It is not an open process. It is people seeing how many they 
can slip in according to what their agenda is.
    I see no reason for us to not continue to move forward with 
this legislation. I look forward to working with anybody who 
wants to work on it. But this is going to be an open process, 
so we can have standards that everybody can say, yes, that 
science is right; most of us agree it is true.
    It may cost you some more money, but it is going to save 
lives. But at least when you spend your money, you know for a 
fact, I am doing the right thing. Rather than, did somebody 
with a hood on that I have to have a secret code to get into 
their room, write that standard that is going to cost us 
millions and millions. That is what is going on. I fail to see 
why that is so hard to understand.
    At this time, I would like to enter into the record 
statements from the Independent Lubricant Manufacturers 
Association and the Association of Builders and Contractors.
    Without objection, so ordered.
    [The information referred to follows:]

   Independent Lubricant Manufacturers Association,
                                        400 N. Columbus St,
                                     Alexandria, VA, June 13, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: The Independent Lubricant Manufacturers 
Association (``ILMA'') would like to express its appreciation for your 
introduction last week of H.R. 5554, the ``Workplace Safety and Health 
Transparency Act of 2006.'' The Association believes that the enactment 
of your bill is good for both manufacturers and for workers. 
Accordingly, ILMA is asking its membership to contact their Members of 
Congress to urge them to co-sponsor H.R. 5554.
    t ILMA submitted a written statement for the record of the April 
27, 2006 hearing before your Subcommittee on Workforce Protections on 
``Examining the Use of Non-Consensus Standards in Workplace Health and 
Safety.'' In our statement, the Association expressed its specific 
concerns with the Occupational Safety and Health Administration 
(``OSHA'') incorporating by reference into its Hazard Communication 
Standard (29 CFR 1910.1200) new Threshold Limit Values (``TLVs'') 
adopted in a non-consensus process by the American Conference of 
Governmental Industrial Hygienists (``ACGIH''). A pending, proposed TLV 
for mineral oil, if adopted by ACGIH and incorporated by reference by 
OSHA, would impose significant costs on ILMA members, most of whom are 
small businesses, and their customers without any increased benefit to 
workers. As a result, H.R. 5554 is an important step in the right 
direction.
    ILMA appreciates your leadership on this issue, and we look forward 
to working with you and your staff on H.R. 5554.
                                         Celeste M. Powers,
                                            CAE Executive Director.
                                 ______
                                 

       Prepared Statement of Associated Builders and Contractors

    Associated Builders and Contractors (ABC) appreciates the 
opportunity to submit the following statement for the official record. 
We would like to thank Chairman Norwood, Ranking Member Owens and 
members of the Subcommittee on Workforce Protections for holding 
today's hearing on ``Addressing Concerns about the U.S. Department of 
Labor's Use of Non-Consensus Standards in Workplace Health and 
Safety.''
    ABC is a national trade association representing more than 23,000 
merit shop contractors, subcontractors, materials suppliers and 
construction-related firms within a network of 80 chapters throughout 
the United States and Guam. Our diverse membership is bound by a shared 
commitment to the merit shop philosophy in the construction industry. 
This philosophy is based on the principles of full and open competition 
unfettered by the government, nondiscrimination based on labor 
affiliation, and the award of construction contracts to the lowest 
responsible bidder through open and competitive bidding. This process 
assures that taxpayers and consumers will receive the most for their 
construction dollar.
    Jobsite safety and health have long been a top priority for ABC. In 
order to improve safety in construction, it is imperative that that 
process be a team effort. Both employer and employee share the 
responsibility for workplace safety. Today's hearing offers a unique 
opportunity to examine concerns that have been raised that regulations 
written without wide participation from the public may not be as 
effective as ones which seek broader input. In other words, it lacks 
the critical team effort component.
    Because of Occupational Safety and Health Administration's (OSHA) 
adoption of non-compliance standards, member firms of ABC's are 
subjected to standards for hazardous material exposure where they have 
had no opportunity to review its validity, feasibility or cost in the 
normal rulemaking process. Increased paperwork is only one part of the 
new rule. Instead, heightened liability for alleged harms based on 
exposure limits set without a scientific or administrative process 
hurts the American employer, workplace and employee. Resources are 
being diverted from workplace safety and health by increased burdens 
without substantial benefits developed through a rulemaking process.
    As you are well aware, your Subcommittee held a hearing in April 
2006, which examined the Department of Labor's (DOL), incorporation, by 
reference to non-compliance standards set by outside standard-setting 
organizations. During that hearing, a lawsuit which involves the 
American Conference of Government Industrial Hygienists (ACGIH) was 
discussed and since that time another action has been brought in 
Federal Court.
    ABC and others filed a petition with the United States Court of 
Appeals for the District of Columbia Circuit on March 31, 2006, which 
questioned the final rule promulgated by OSHA, which, through 
incorporation by reference, amended OSHA's Hazard Communication 
Standard, upon adoption and publication of the 2006 Threshold Limit 
Values (TLVs) by the ACGIH.
    ACGIH, a non-governmental body, is not bound by, nor does it comply 
with the Administrative Procedure Act. The TLVs are developed by the 
standing committee of ACGIH known as the Threshold Limit Values for 
Chemical Substances Committee. ACGIH explicitly disclaims any intent to 
be a consensus standards organization that attempts to work through a 
balancing of bias and interests.
    While OSHA may retain the right to adopt industry standards set by 
consensus, ACGIH's closed process does not meet the requirement for 
consensus. As stated in the OSH Act, the definition of a national 
consensus standard is:
    ``The term national consensus standard means any occupational 
safety and health standard or modification thereof which (1) has been 
adopted and promulgated by a nationally recognized standards-producing 
organization under procedures whereby it can be determined by the 
Secretary that persons interested and affected by the scope or 
provision of the standard have reached substantial agreement on its 
adoption, (2) was formulated in a manner which afforded for diverse 
views to be considered....''
    ABC commends you for holding such hearings to ensure that there is 
transparency in the rulemaking process with opportunity for public 
input. We look forward to working with you and this subcommittee as 
this issue moves forward.
    Again, ABC thanks the Chairman, Ranking Member and members of the 
Subcommittee for the opportunity to present the views of our membership 
on this important issue.
                                 ______
                                 
    Chairman Norwood. I want to thank each of the panelists 
here today for their insightful testimony. We will certainly 
use what we have learned here today as we work on this issue 
further. And trust me, we are going to work on this issue 
further.
    If there is no further business, this subcommittee now 
stands adjourned.
    [Whereupon, at 12:10 p.m., the subcommittee was adjourned.]
    [Additional materials supplied for the record follow:]

                        Brick Industry Association,
                                 11490 Commerce Park Drive,
                                         Reston, VA, July 17, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: On June 14, 2006, the Brick Industry 
Association (`BIA'') had the privilege of testifying before the 
Workforce Protections Subcommittee on the impact on our industry of 
OSHA's use of non-consensus standards in developing workplace health 
and safety regulations. We are grateful for your leadership on this 
important issue, and we thank you for providing us with the opportunity 
to testify.
    Our written statement focused on the 2006 non-consensus standard 
for crystalline silica developed by the American Conference of 
Governmental Industrial Hygienists' (``ACGIH'') Threshold Limits Value 
(``TLV'') Committee--a standard that ``utterly fails to take into 
account the particular conditions of our industry.'' Statement of 
Joseph S. Casper, BIA's Vice President, Environment, Health & Safety, 
at 2. We cited nine peer-reviewed studies, published over the years, 
which have shown the virtual non-existence of silicosis in brick 
industry workers. Id. at 3. None of these studies appear to have ever 
been considered by the TLV Committee or the ACGIH in establishing its 
new non-consensus standard.
    The BIA's statement also discussed our newly completed sponsored 
Study, ``The Prevalence of Silicosis in the Brick Industry,'' which 
found no x-ray evidence consistent with silicosis in the over 700 brick 
industry workers studied. Id. at 5. We respectfully request that a copy 
of this important Study (attached) be made a part of the record of the 
June 14 hearing, along with the curriculum vitae (also attached) of the 
Study's Principal Investigator, Patrick A. Hessel, Ph.D., an 
epidemiologist with great experience in occupational and environmental 
lung diseases, especially silicosis, asbestosis, and lung cancer. Dr. 
Hessel is in the process of seeking peer review and publication of the 
Study.
    Dr. Hessel's Study is wholly in accord with the nine studies cited 
in our Statement. Because of the BIA's commitment to the protection of 
the health and safety of our industry's workforce, however, we are in 
the process of preparing a best practices silicosis prevention program 
for the voluntary use of our membership. We expect to launch that 
program in 2007, and would appreciate the opportunity to discuss it 
further with you at that time.
    Since the June 14 hearing, we have had the opportunity to carefully 
review the statements of the other witnesses who appeared before the 
Subcommittee, all of whom offered important perspectives for the 
consideration of you and your colleagues. We do wish to correct one 
particular comment in the statement of Professor David Michaels bearing 
directly on the BIA. Dr. Michaels, in his observations about the work 
of the International Agency for Research on Cancer (``IARC'') in 
designating crystalline silica as a human carcinogen, stated: 
``Washington trade groups, like the [BIA], may object to IARC's 
designation, but representatives of the producers and users of silica 
were present at the IARC [1997] meeting and their input was heard.'' 
First, we wish to note, for the record, that our statement made no 
mention of IARC. Second, the BIA was not involved with any U.S. 
industry effort connected with the 1997 IARC meeting. And third, while 
we have learned that a U.S. industry representative attended the 1997 
IARC meeting as a ``scientifically qualified observer,'' the role of 
such observers is quite limited.
    Finally, in addition to the comments about OSHA's ``HAZCOM'' 
Standard in Mr. Casper's statement, we wish to note our concern about 
the possible misuse of non-consensus standards, like the ACGIH 
crystalline silica TLV, in OSHA health standard rulemakings. 
Specifically, BIA is concerned that OSHA may rely too heavily on this 
TLV in its pending rulemaking considering revision of the permissible 
exposure limit (``PEL'') for crystalline silica. We think it entirely 
appropriate, as Assistant Secretary of Labor for Occupational Safety 
and Health Edwin G. Foulke, Jr. said in his June 14 statement to the 
Subcommittee, that OSHA should consider ``input through a variety of 
means and sources to produce the most effective standards,'' (Foulke 
Statement at 2) and nothing in H. R. 5554 precludes OSHA from doing so, 
in our view. We do expect, however, that OSHA will ``consider the best 
and latest available scientific data,'' (id.) in its development of any 
new crystalline silica PEL, including the scientific literature 
specifically focused on our workforce.
    To conclude, Mr. Chairman, for all the reasons addressed in our 
June 14 Statement, as supplemented and augmented herein, the BIA 
strongly supports H.R. 5554, the Workplace Safety and Health 
Transparency Act, because of our concerns about the Department of 
Labor's HAZCOM Standard rule automatically incorporating such non-
consensus standards as the ACGIH crystalline silica TLV.
    While BIA supports the intent of the OSHA HAZCOM Standard, BIA does 
not agree with OSHA's treatment of the latest edition of the ACGIH's 
TLVs as a source showing that the listed chemicals are hazardous for 
purposes of hazard communication. Further, BIA finds problematic the 
requirement that Material Safety Data Sheets must include the current 
ACGIH TLV for each chemical.
    Again, thank you for your leadership on this important issue. Of 
course, I hope that if your staff has any questions they will not 
hesitate to contact Mr. Casper at (703) 674-1545 / [email protected].
            Sincerely,
                                       Richard A. Jennison,
                                                   President & CEO.
                                 ______
                                 
    [Additional BIA material submitted and placed in permanent 
archive file, ``The Prevalence of Scoliosis in the Brick 
Industry,'' Committee on Education and the Workforce, Patrick 
A. Hessel, Ph.D., EpiLung Consulting, Inc., Palatine, IL (May 
30, 2006).]
                                ------                                

          Chamber of Commerce of the United States,
                                            1615 H St., NW,
                                     Washington, DC, June 29, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: The U.S. Chamber of Commerce commends you 
for introducing the Workplace Safety and Health Transparency Act (H.R. 
5554) that would insure OSHA can only incorporate by reference, or 
otherwise rely upon, standards produced by an organization meeting al 
the requirements of a consensus organization as specified in the OSH 
Act.\1\ This correction is long overdue.
---------------------------------------------------------------------------
    \1\ See 29 U.S.C. 652(9), definition of ``national consensus 
standard.''
---------------------------------------------------------------------------
    The U.S. Chamber of Commerce represents over three milion members 
in every sector of the economy and in al sizes. Our members are 
directly impacted by OSHA's regulations and are concerned about OSHA's 
incorporating by reference standards produced by organizations that 
claim to use a consensus process, or are deemed to be consensus 
organizations.\2\ The heart of our democratic process and the American 
government system is transparency and an open process where those 
affected by the government action have an opportunity to participate 
and shape the outcome. When OSHA incorporates a standard by reference, 
or otherwise relies on standards that were produced without adequate 
input from those affected by them, this fundamental right to a 
transparent and participatory process is lost.
---------------------------------------------------------------------------
    \2\ See 29 CFR 1910. 1200(d)(3)(i), describing the American 
Conference of Governmental Industrial Hygienists' list of Threshold 
Limit Values (TLVs) as evidence that a chemical substance is hazardous.
---------------------------------------------------------------------------
    The Workplace Safety and Health Transparency Act would go a long 
way towards arresting OSHA's ability to incorporate standards produced 
without an adequate consensus process by reference. The bil requires 
the Secretary of Labor to make an affirmative finding that the 
organization producing the standard has met the definition of a 
consensus organization already established at section 3(9) of the OSH 
Act. Your bil would then make this finding a final agency action and 
thus subject to judicial review under the Administrative Procedure Act. 
Essentialy, this act merely says that Congress was serious when it 
enacted the definition for a consensus organization and limited
    OSHA's use of consensus standards to those produced by 
organizations that met this definition.
    Equaly important, your bil does not in any way alter or disturb 
current rulemaking requirements. This means that OSHA wil not be able 
to revert to the provisions of section 6(a)\3\ to issue consensus 
standards as regulations. Only if they provide the protections of ful 
notice and comment rulemaking, as specified in the OSH Act and the 
Administrative Procedure Act (as amended by the Regulatory Flexibility 
Act and the Smal Business Regulatory Enforcement Fairness Act) would 
OSHA be able to use a consensus standard as the basis for a rulemaking.
---------------------------------------------------------------------------
    \3\ See 29 U.S.C. 655(a) alowing OSHA to adopt national consensus 
standards within a two year period of the date of enactment of the OSH 
Act.
---------------------------------------------------------------------------
    While Senator Enzi has introduced similar language in his bil, the 
Occupational Safety Fairness Act, S. 2066, your bil would go farther by 
applying the same standard to state plans under review by OSHA. We 
believe this is an important step as some states have been known to 
adopt consensus standards without any opportunity for public comments. 
Similarly, applying this standard to the Mine Safety and Health 
Administration is entirely appropriate and insures that there is 
consistency between these two safety agencies.
    Finaly, we want to be clear that our support for this bil is not a 
mater of employers seeking de-regulation of workplace safety. Employers 
fuly appreciate the need to provide adequate protection and remedial 
measures. Regulations specifying these measures must be subject to 
public scrutiny and rigorous examination, and the regulations must meet 
the requirements of being technologicaly and economicaly feasible. We 
object to safety regulations that are supported by data and science 
which have not been tested by exposure to the public and subject to 
comments by those affected by the standard or regulation. This also 
means that trying to pass off colective group think-where coleagues 
share the same view-as peer review is not an acceptable safeguard. Only 
the transparency of an open rulemaking, with the protections of 
judicial review for inadequate support of a regulatory action wil 
suffice.
    We look forward to working with you to advance this important piece 
of legislation.
            Sincerely,
                                         Randel K. Johnson,
            Vice President, Labor, Immigration & Employee Benefits.
                                             Marc Freedman,
                                        Director, Labor Law Policy.
                                 ______
                                 
                                  Patton Boggs LLP,
                                            2550 M St., NW,
                                     Washington, DC, June 20, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: We respectfully submit this letter for the 
record of the recent legislative hearing on HR 5554 on behalf of The 
Mining Awareness Resource Group (MARG). MARL strongly supports HR 5554 
and extends its thanks and gratitude to you for your leadership in this 
important public policy matter.
    MARG is an informal coalition of mining companies in the United 
States that receives support from time to time from major trade 
associations and other interested companies. MARG members operate metal 
and mineral (non coal) mines and/or related facilitates in Florida, 
Georgia, Idaho, Illinois, Kentucky, Louisiana, Michigan, New Mexico, 
Ohio, Pennsylvania, Texas, and other states. MARL members support sound 
standards that protect the environment and employees; but MARL opposes 
scientifically invalid, non-consensus standards, supported and used by 
the U.S. Department of Labor (OSHA and MSHA) and the Department of 
Health and Human Services (NIOSH and ME).
    As you correctly pointed out, non-consensus standards are developed 
in closed meetings, by unknown authors (including agency employees and 
their academic grant recipients) and become the basis of OSHA and MSHA 
regulations (e.g. MSHA and OSHA's current silica rulemaking and MSHA's 
diesel exhaust standard). The OSHA Hazard Communication Rule mandates 
that the latest edition of the ACGIH TLVs--a non-consensus group by 
their own admission--be listed on Material Safety Data Sheets. 
Similarly, the MSHA Haz Com Rule mandates that the 2001 ACGIH TLVs 
define whether a chemical is hazardous.
    These hundreds of recent ACGIH MV were adopted by reference by OSHA 
and MSHA, without mandated rulemaking proceedings to examine their 
validity. Moreover, a number of DOL and I II IS agency personnel served 
on the ACGIH Board of Directors or Committees and adopted or authored 
the recent TLVs, permitting conflicts of interest and bias to impact 
government rules without public disclosure.
    Non-consensus standards, like the ACGIH TLV, are scientifically 
suspect since the qualifications of their authors, and even their 
identity is kept secret, and they are not subjected to independent, 
outside expert peer review, like true scientific work products. These 
non-consensus standards not only cause harm to impacted industries 
through agency actions, but they also are used in tort litigation as 
alleged standards of care that have government support.
    MARG members were vindicated when a non-consensus standard (the 
ACGIH TLV(r) for trona) was withdrawn by ACGIH in a public apology, 
following the favorable settlement of a lawsuit against ACGIH and DOL, 
in 2001 whereby ACGIH admitted that there were no health effects 
supporting the TLV, and that misconduct by its agent had occurred. Yet, 
adversely impacted parties should not be forced to litigate against 
these government supported and sanctioned non-consensus standard 
setting groups, and we believe that HR 5554 provides the needed 
sunshine on government actions to prevent future abuses.
    We urge passage of HR 5554, and again thank you for your 
leadership. Sincerely,
                                              Henry Chajet,
                                                   Counsel to MARG.
                                 ______
                                 
                       National Mining Association,
                                 101 Constitution Ave., NW,
                                     Washington, DC, June 21, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: On behalf of the members of the National 
Mining Association (NMA), I am writing to express our strong support 
for the Workplace Safety and Health Transparency Act (H.R. 5554) which 
you recently introduced.
    This legislation will address inequities in the standard setting 
process used by the Occupational Safety and Health Administration 
(OSHA) and the Mine Safety and Health Administration (MSHA) which 
result in the implementation of occupational exposure limits that have 
not been subjected to the normal notice and comment provisions required 
by law. Moreover, it will prevent those charged with implementing our 
nation's safety and health laws from delegating their regulatory 
responsibilities to non-governmental standard setting organizations 
that are not subject to Congressional oversight and accountability.
    NMA has a long and tortuous history with one such organization, the 
American Conference of Governmental Industrial Hygienists (ACGIH). The 
ACGIH, whose voting members are government officials and 
representatives of academia, has adopted occupational exposure limits 
recommended and drafted by agency regulatory officials who use the 
ACGIH as a back-door regulatory forum devoid of notice and comment 
protection. This practice cannot be permitted to continue and we are 
pleased to voice our support for your bill that, among other things, 
will end this abusive practice.
            Sincerely yours,
                                            Kraig R. Naasz,
                                                   President & CEO.
                                 ______
                                 
         National Stone, Sand & Gravel Association,
                                             1605 King St.,
                                     Alexandria, VA, June 30, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: Worker safety is a top priority of the 
National Stone, Sand and Gravel Association (NSSGA), as evidenced by 
the association's formal alliance with the Mine Safety Health 
Administration to further extend its commitment to preventing 
fatalities, injuries and illnesses in America's mines. To this end, 
NSSGA endorses the Workplace Safety and Health Transparency Act (H.R. 
5554), and welcomes your effort to promote worker safety in an open and 
formal process. NSSGA believes that this important legislation will 
help ensure all relevant opinions and data are openly considered when 
worker safety measures are promulgated.
    At the April 27, 2006, hearing in the Workforce Protections 
Subcommittee titled ``Examining the Use of Non-Consensus Standards in 
Workplace Health and Safety,'' an NSSGA member company testified about 
the concerns of the industry with the Occupational Safety and Health 
Administration and Mine Safety and Health Administration incorporating 
non-consensus standard Threshold Limit Values (TLVs) by reference, 
completely bypassing the normal regulatory process. The fact that the 
American Conference of Governmental Industrial Hygienists (ACGIH) 
develops TLVs outside of the normal regulatory process, leads to 
questions of fairness and whether or not all relevant data and opinions 
are considered when these important worker safety measures are 
composed. For all its faults at least the normal regulatory process 
solicits input both written and oral from the regulated community, 
academia and any other interested parties; requires government 
commentary on significant comments/data in rulemaking decisions; and 
operates more openly in the sunshine, is the better method to guarantee 
all points of view and all relevant data are incorporated in the effort 
to ensure that final regulations are based on sound science and are 
technically and economically feasible
    As the largest mining association by product volume in the world, 
NSSGA's member companies produce 90 percent of the crushed stone and 
more than 70 percent of the sand and gravel consumed annually in the 
U.S. Aggregates are the largest component of asphalt and concrete. 
Nearly three billion metric tons of aggregates valued at over $17.4 
billion are estimated by the U.S Geological Survey to have been sold in 
the U.S. in 2005. Without these important natural products, the 
nation's infrastructure could not be built or maintained, and commerce 
and quality of life would be severely reduced.
    NSSGA supports voluntary consensus standards and the openness 
provided by the regulatory process. H.R. 5554 will ensure worker safety 
regulations are promulgated in an open and transparent process. For 
this reason NSSGA and its members proudly endorse the Workplace Safety 
and Health Transparency Act and thank you for your efforts to improve 
the process--to the benefit of employees and employers alike.
            Sincerely,
                                       Jennifer Joy Wilson,
                                                   President & CEO.
                                 ______
                                 
     The Associated General Contractors of America,
                                     2300 Wilson Boulevard,
                                      Arlington, VA, June 21, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: On behalf of the Associated General 
Contractors of America (AGC), I would like to express our appreciation 
for the introduction of H.R. 5554, the Workplace Safety and Health 
Transparency Act. This legislation and the hearings you have held on 
this subject matter are bringing much needed attention to this 
important issue.
    The safety and health of workers across the nation on construction 
worksites is an AGC priority. The importance of educating the industry 
and public on safety and health issues within the construction industry 
has been a staple of AGC. Open discussion and debate of various topics 
is part of this educational process. The American Conference of 
Government Industrial Hygienists (ACGIH) does not facilitate the 
openness and transparency in their development of Threshold Limit 
Values (TLVs). The Occupational Safety and Health Administration's 
(OSHA) adoption of such TLVs poses great concern among AGC members as 
these TLVs are not developed in an unbiased process and does not take 
into consideration all interested parties. Many small businesses are 
severely affected by the adoption of extreme non-consensus standards. 
The significant cost associated with implementing such TLVs creates 
hardship on AGC members with little consensus on the impact of TLVs on 
construction worker safety and health.
    OSHA's adoption of standards developed by consensus groups are 
acceptable and appropriate for the industry, if standards are developed 
by groups with open communication with the public and with transparency 
in compliance with the Administrative Procedure Act. The definition of 
a national consensus standard under the Occupational Safety and Health 
Act, says that any occupational safety and health standard or 
modification thereof was formulated in a manner which affords for 
diverse views and that interested persons affected by the standard have 
reached agreement on its adoption. ACGIH does not meet the terms of 
this definition and OSHA needs to address the inconsistency they have 
caused by incorporating by reference ACGIH standards and other non-
consensus standards.
    It should be noted that AGC fully supports the inclusion of 
consensus standards from consensus groups such as the American National 
Standards Institute (ANSI) where there is open communication and 
discussion of various topics and issues.
    AGC represents more than 32,000 firms, including 7,000 of America's 
leading general contractors, and over 11,000 specialty-contracting 
firms. More than 13,000 service providers and suppliers are associated 
with AGC through a nationwide network of chapters.
    We appreciate your leadership on this and other OSHA issues. We 
look forward to working with you and your staff on the Workplace Safety 
and Transparency Act.
            Sincerely,
                                       Kelly Krauser Knott,
                                    Director, Government Relations.
                                 ______
                                 
        Masonry Contractors Association of America,
                                        33 S. Roselle Road,
                                     Schaumburg, IL, June 19, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: On behalf of the members of the Mason 
Contractors Association of America (MCAA) we would like to express our 
sincere appreciation for the introduction of H.R. 5554, the ``Workplace 
Safety and Health Transparency Act of 2006.'' MCAA strongly believes 
that enactment of your bill would benefit our member companies as well 
as the individuals they employ.
    MCAA is extremely concerned that the Occupational Safety and Health 
Administration (OSHA) incorporates, by reference, into regulations, 
standards which have been adopted by the American Conference of 
Governmental Industrial Hygienists (ACGIH), which are non-consensus 
standards. As you well know our members are subjected to standards for 
hazardous material exposure where they have had no opportunity to 
review the validity of the standard or its feasibility and cost, which 
would be part of the normal rulemaking process.
    Jobsite safety and health have long been and remain a top priority 
for MCAA. We commend you for your efforts to address the concerns 
regarding the ``Department of Labor's Use of Non-Consensus Standards in 
Workplace Health and Safety.'' In addition, we again express our 
support for your efforts to insure that policy is based on sound 
science and a transparent process.
    Thank you for your time and consideration in this matter of mutual 
interest and we look forward to our continued work together.
            Sincerely,
                                   Jessica Johnson Bennett,
                                    Director of Government Affairs.
                                 ______
                                 
     Association of Occupational and Environmental 
                                           Clinics,
                                     1010 Vermont Ave., NW,
                                                    Washington, DC.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.

RE: Bill to amend the Occupational Safety and Health Act of 1970 and 
        the Federal Mine Safety and Health Act of 1977 to prohibit the 
        promulgation of safety and health standards that do not meet 
        certain requirements for national consensus standards.
    The Association of Occupational and Environmental Clinics is a non-
profit membership organization established in 1987. We represent over 
60 occupational medicine clinics including more than 80% of the 
occupational medicine training programs for physicians. Our members are 
a multidisciplinary group of physicians, nurses, industrial hygienists 
and other occupations concerned with occupational and environmental 
health. Our focus in occupational and environmental health is on the 
prevention of illness and injuries.
    We are concerned about the potential for unintended consequences of 
the Bill referenced above, which we understand has been introduced by 
Representative Norwood. While we agree that workplace health and safety 
standards should be ``formulated in a manner which has afforded an 
opportunity for diverse views to be considered;'' we are concerned that 
OSHA and MSHA will be prohibited from even referencing ``any finding, 
guideline, standard, limit, ...'' unless it meets all of the 
requirements outlined in the draft legislation. We are particularly 
concerned over requirement 1 which requires ``that persons interested 
and affected by the scope or provisions of the standard have reached a 
substantial agreement on its adoption.'' This effectively precludes 
OSHA or MSHA from referencing any information that does not have 100% 
agreement amongst all stakeholders, which would allow any small entity 
to exercise veto power over health and safety standards through claims 
of a ``lack of consensus.'' .
    While we understand the rationale for complete open review of 
exposure levels for enforcement purposes, not allowing OSHA or MSHA to 
include information from well established, peer-reviewed sources, such 
as the threshold limit values (TLV) from the American Conference of 
Governmental Industrial Hygienists, has the potential to harm many 
workers. The TLVs provide a science-based benchmark for clinicians to 
assess the association between exposure levels and hazards to workers' 
health. The TLVs are widely accepted in the medical and public health 
community as guidance for clinical evaluation. While occupational 
physicians will continue to have ready access to this information, most 
ill and injured workers are seen by their primary care physicians. Many 
times primary care physicians evaluating a potentially hazardous 
exposure must use material safety data sheets (MSDS) as their only 
source of information about possible health effects of exposures. These 
sheets are required to include recommended exposure limits and 
potential health hazards provided not only from ACGIH but also the 
National Toxicology Program (NTP) and the International Agency for 
Research on Cancer (IARC). Information on the MSDS is not only used for 
worker exposures but also for exposures to community members including 
children.
    OSHA already has a standard-setting procedure that takes into 
account the nature and weight of evidence for health hazards as well as 
the feasibility and burden-to-benefit ratio of implementation. While 
the ideal situation would be for OSHA to establish safe exposure levels 
for all potentially harmful workplace exposures, the reality is that 
OSHA has issued fewer than thirty such standards in the past thirty 
years. Given the thousands of potentially harmful exposures in the 
workplace, it is neither practical nor advantageous to worker health 
and safety to wait for 100% consensus.
    Most importantly to clinicians, this amendment would curtail 
information on the MSDS regarding potential health effects. This 
information is important to accurate clinical diagnosis and patient 
care. We appreciate your attention to this matter and strongly urge you 
to re-evaluate the potential consequences of this bill.
                                Katherine H. Kirkland, MPH,
                                                Executive Director.
                                 ______
                                 

                Prepared Statement of Brush Wellman Inc.

    Brush Wellman appreciates the opportunity to submit comments and 
information pertinent to the deliberations of the Subcommittee on 
Workforce Protections regarding its concerns about the U.S. Department 
of Labor's use of non-consensus standards in workplace health and 
safety. Brush Wellman is the leading international supplier of high 
performance engineered materials containing beryllium and is 
headquartered in Cleveland, Ohio. It is the only fully integrated 
supplier of beryllium, beryllium alloys and beryllia ceramic in the 
world.
    Since its founding in 1931, Brush Wellman has concentrated its 
operations and skills on advancing the unique performance capabilities 
and applications of beryllium-based materials. As a world leader in 
beryllium production and technology, Brush Wellman strives to remain a 
leader in medical knowledge of beryllium and in the environmental, 
health and safety aspects of using beryllium-containing materials.
    We wish to commend the Subcommittee for its work in investigating 
how select non-governmental organizations and internal government 
agency scientific committees may directly or indirectly influence 
legislation and regulations in a manner which does not allow all 
scientific findings or expert opinions to be fairly considered and 
heard on a level field of play. Brush Wellman has first hand experience 
in submitting credible scientific research to such groups. Sometimes we 
get a fair hearing with our comments being considered and incorporated 
based on their technical merits. Unfortunately, our comments are often 
viewed simply as an industry submission not worthy of consideration. 
Quite frankly, such responses are unfair with industry being held to a 
different level of scientific scrutiny than those from academia or 
government agencies who tend to get a free pass on their research 
motivations regardless of the size of their financial grants or their 
personal or professional gains.
    As a result, Brush Wellman strives to meet a higher standard of 
scientific achievement through the quality of its research and its 
research partnerships with government agencies such as NIOSH. For these 
partnerships to be successful, perceptions and opinions must be cast 
aside and good science must prevail. Our research partnership with 
NIOSH, to advance the knowledge of beryllium health and safety, is now 
in its ninth year. One very key benefit of this work has been Brush 
Wellman's ability to move the research findings to the shop floor to 
improve safe work practices at a rapid pace. In fact, the NIOSH/Brush 
Wellman relationship was reviewed in detail by the NIOSH Board of 
Scientific Councilors, in part to ensure that industry was not unduly 
influencing NIOSH researchers. The Board found no such conflicts and 
stated that:
    ``The subcommittee was impressed with the current NIOSH research 
program on beryllium, both in terms of the scientific quality of the 
work and the progress made to date. The cooperative and close 
interaction with Brush Wellman has also been beneficial to the quality 
and achievements of this research.''
    and,
    ``The NIOSH beryllium research program includes a high degree of 
collaboration with Brush Wellman Inc. In many respects, the level and 
degree of collaboration offers a model for similar work with industry 
groups.''
    Brush Wellman is currently in discussions with NIOSH to extend its 
research partnership into other areas such as how best to communicate 
the lessons learned from our joint research to users of beryllium-
containing materials downstream of the primary beryllium industry.
    In reviewing the comments of those who provided direct testimony to 
the Subcommittee on Workforce Protections, Brush Wellman has identified 
misleading statements and errors of fact that we wish to bring to the 
attention of the Subcommittee.
    The statement by Congressman Major Owens regarding his description 
of beryllium as an example of a ``powerful carcinogen'' inappropriately 
overstates the potential carcinogenic risk of exposure to beryllium.
    Even if one were to accept the relative risks for cancer used to 
establish beryllium as a carcinogen, the risk values for beryllium 
remain the lowest ever used to so designate a human carcinogen.\1\ It 
is also clear that beryllium exposure does not pose a cancer risk 
today. Studies conducted on worker populations have found no excess 
cancer risk in facilities operated after the 1950s when inhalation 
exposures were typically 10 to 1000 times lower than that experienced 
in pre-1950 facilities. Scientific organizations have addressed this 
finding by stating that any association which may exist between 
beryllium and cancer is only at the extremely high levels of airborne 
beryllium particulate exposure which existed at facilities operating 
before the 1950s.\2,3\
    Whether beryllium should even be listed as a carcinogen remains a 
serious question in scientific circles. In the most current study 
regarding the potential for beryllium to cause lung cancer,\4\ Dr. Paul 
S. Levy concluded:
    ``There is no statistical association between beryllium exposure in 
these workers and lung cancer when using the most appropriate 
population cancer rates.''
    The Levy study, which was published in 2002, reanalyzes the data 
and conclusions of the 1992 study by Ward \5\ which has been used to 
support cancer classifications for beryllium by organizations such as 
IARC and the NTP.
    The Levy study establishes that there is no statistical association 
between beryllium exposure and lung cancer. In addition, a 2004 study 
by the U.S. Department of Energy\6\ concludes that:
    ``No associations were found between lung cancer mortality and 
cumulative external penetrating radiation dose or cumulative exposures 
to asbestos, beryllium, hexavalent chromium, or nickel.''
    The reports from the organizations that have classified beryllium 
as a carcinogen show that they have not yet considered the Levy or DOE 
study in their evaluation of beryllium. The scientific evidence 
provided by the Levy and DOE studies warrants a review of the 
carcinogenicity classification for beryllium.
    The carcinogenicity of beryllium has been and will continue to be 
debated in the scientific and regulatory community. Although 
unconvinced of the validity of a causal relationship between beryllium 
exposure and lung cancer, Brush Wellman has for years included 
information on the cancer classification of beryllium in its product 
Material Safety Data Sheets and warning labels.
    The testimony of Dr. Michaels to the Subcommittee contains 
misleading statements and errors of fact which require clarification 
Dr. Michaels made the following statement to Congress.
    ``OSHA's current beryllium exposure standard dates to 1949. Fifty 
years later, when I was Assistant Secretary of Energy, we issued a 
workplace exposure standard for beryllium that is ten times stronger 
than OSHA's. After much initial opposition, even the beryllium industry 
now acknowledges the current OSHA standard is inadequate. The bill 
being considered today would prohibit OSHA from referencing the ACGIH's 
recommendations on beryllium, or IARC's findings that beryllium is a 
human carcinogen.''
    The DOE did not issue a workplace exposure standard 10 times lower 
than the OSHA beryllium standard. The DOE rule uses the current 
Occupational Safety and Health Administration health standard of ug/
m\3\ as its legal exposure level to protect workers. The DOE did issue 
a 10-fold lower ``action level''. The DOE ``action level'' for 
beryllium prompts the use of control measures such as personal 
protective equipment, air monitoring and warning signs. The DOE final 
rule contains the following statement.
    ``DOE has decided that the most prudent course is to lower the 
action level to 0.2 ug/m\3\ rather than set a new exposure limit.''
    The DOE rule did not identify a new PEL for beryllium. In addition, 
the DOE would not automatically accept a new ACGIH beryllium TLV as its 
new beryllium exposure limit without reopening the rulemaking process 
in a manner subject to public review. The DOE rule states:
    ``The incorporation of any new ACGIH TLV in this rule would require 
that DOE conduct a rulemaking on the specific exposure level and 
present the scientific basis for public comment. As stated previously 
in this SUPPLEMENTARY INFORMATION section, DOE believes, based on the 
existing scientific evidence, that such a rulemaking is premature.''
    Even today, the ACGIH has not adopted a new TLV for beryllium and, 
in fact, has proposed three different values for a new beryllium TLV 
over the past 8 years. The current ACGIH TLV for beryllium still 
remains the same as the current OSHA PEL for beryllium.
    Dr. Michaels went on to say ``After much initial opposition, even 
the beryllium industry now acknowledges the current OSHA standard is 
inadequate.'' This statement is not accurate. What Brush Wellman 
objected to regarding the DOE's consideration of a lower PEL was that 
there was not yet a good scientific basis to set a new standard for 
beryllium exposure. Based on research studies conducted by Brush 
Wellman in cooperation with the National Jewish Medical Center, Brush 
Wellman issued a written letter in August of 1996 advising all of its 
customers that:
    ``Brush Wellman continues to recognize this standard [OSHA 2 
microgram PEL]. At the same time, it remains the best practice to 
maintain concentrations of all atmospheric contaminants as low as 
feasible, and continue to work to improve exposure control practices 
and procedures. At this time, it is uncertain whether persons exposed 
only below the standard can become sensitized to beryllium or develop 
clinical signs or symptoms of CBD.''
    Brush Wellman made this statement regarding the uncertainties of 
the current standard three years before the DOE issued its beryllium 
rule.
    Regarding Brush Wellman's position on the current OSHA standard, we 
have publicly stated the following to all of our customers.
    ``Research findings\7\ suggest that a high level of compliance with 
the current Occupational Safety and Health Administration (OSHA) 
Permissible Exposure Limit (PEL) of 2 ug/m\3\ can prevent clinical 
CBD.\8,9,10\ Recent research findings\11\ indicate that individuals at 
operations with exposures that rarely exceed 0.2 ug/m\3\ did not 
experience sensitization\12,13,14\ or sub-clinical CBD.15,16
    The 2001 Department of Energy (DOE) study by Johnson\3\ reviewed 
and analyzed the results of the beryllium monitoring program at the 
Atomic Weapons Establishment beryllium facility in Cardiff Wales. The 
Cardiff study analyzes the single most extensive historical database of 
personal exposure monitoring data within the beryllium industry. A 
notable feature of the program was that it included personal exposure 
monitoring on every worker for every day worked. More than 200,000 
personal samples were collected between 1981 and 1997. Based on these 
extensive sampling data, the Cardiff facility achieved compliance with 
the current beryllium standard 98 percent of the time. Since its 
inception, the Cardiff facility maintained a state-of-the-art exposure 
management program which included strict and consistent use of 
engineering controls, work practices, housekeeping, process 
containment, migration controls and the use of personal protective 
equipment. The Cardiff program resulted in one case of clinical CBD 
over 36 years of operation. Johnson concluded that the Cardiff 
experience ``* * * appears to have successfully prevented the incidence 
of clinical CBD with the exception of one unique case.''
    The final results from the National Institute for Occupational 
Safety and Health (NIOSH)/Brush Wellman 2000 study\7\ of the Brush 
Wellman Reading, Pennsylvania facility have shown that sensitization 
and sub-clinical CBD can occur when airborne beryllium levels have been 
mainly below the OSHA PEL of 2 ug/m\3\. The results also show that 
workers in operations which rarely exceeded 0.2 ug/m\3\ had no 
sensitization or sub-clinical CBD. This facility processes alloys 
containing 0.1% to 2.0% beryllium and manufactures thin gauge strip and 
wire products using a variety of processes including rolling, drawing, 
pickling, annealing, heat treating, degreasing and welding.
    Although the Cardiff study suggests that a high level of compliance 
with the 2 ug/m\3\ standard may prevent clinical CBD, the results from 
the Reading study, along with uncertainties of particle size,\17,18\ 
chemical form\19\ and process related risks,\20\ support taking a more 
conservative approach. As a result, Brush Wellman has adopted an action 
level for airborne beryllium of 0.2 ug/m\3\ as an 8-hour time weighted 
average. Brush Wellman utilizes good work practices, engineering 
controls, and respiratory protection in its efforts to maintain worker 
exposures below 0.2 ug/m\3\.''
    In closing, the absence of a general understanding of the 
difference between sub-clinical and clinical CBD, the lack of 
understanding that all beryllium disease is not symptomatic, and 
widespread misunderstandings associated with the beryllium blood test 
have all been used to distort the perception of health effects of 
occupational exposure to beryllium. Beryllium health and safety 
represents a complex medical issue that can be easily misunderstood 
even by the most thoughtful per son. Unfortunately, it is also all too 
often manipulated by non-altruistic critics to the disservice of the 
thousands of men and women that the industry employs and to the 
discredit of the incredible range of benefits its products bring to 
society. Beryllium and beryllium-containing materials are making the 
world a better, more connected and safer place. You'll find them at 
work helping to ensure our national defense and homeland security, and 
saving lives in airbag sensors, fire control sprinkler heads, 
mammography x-ray equipment and medical lasers.

                                ENDNOTES

    \1\ Comments of Dimitrios Trichopoulos, MD The Alleged Human 
Carcinogenicity of Beryllium Submitted to the National Toxicology 
Program June, 1999.
    \2\ American Conference of Governmental Industrial Hygienists. 
Beryllium and Compounds, Documentation of Threshold Limit Values 
(1997).
    \3\ International Agency for Research on Cancer. Beryllium, 
cadmium, mercury and exposures in the glass manufacturing industry. 
IARC Monographs on the Eval uation of Carcinogenic Risks to Humans 58:-
41 117 (1993).
    \4\ Levy P., Roth H., Hwang P., Powers T. Beryllium and Lung 
Cancer: A Reanalysis of a NIOSH Cohort Mortality Study. Inhalation 
Toxicology 14:1003-1015 (2002).
    \5\ Ward, E., et al. A Mortality Study of Workers at Seven 
Beryllium Processing Plants. Am J Ind Med 22: 885-904 (1992).
    \6\ Brown S.C., et al. Lung Cancer and Internal Lung Doses among 
Plutonium Workers at the Rocky Flats Plant: A Case-Control Study. Am J 
Epidemiol 160(2): 163-172 (2004).
    \7\ Johnson J., et al. Beryllium Exposure Control Program at the 
Cardiff Atomic Weapons Establishment in the United Kingdom. Appl Occup 
Environ Hyg 16(5): 619-630 (2001).
    \8\ Clinical CBD is defined as symptomatic lung disease with 
abnormal chest x-ray or lung function test.
    \9\ Hardy H.L., Tabershaw I.R. Delayed Chemical Pneumonitis 
Occurring in Workers Exposed to Beryllium Compounds. J Indus Hyg 
Toxicol 28: 197 (1946).
    \10\ Kriebel D., Brain J.D., Sprince N.L., et al. The Pulmonary 
Toxicity of Beryllium. Am Rev Respir Dis 137(2): 464-473 (1988).
    \11\ Schuler, C., et al. Process-Related Risk of Beryllium 
Sensitization and Disease in a Copper-Beryllium Alloy Facility. Am J 
Ind Med (In Press)
    \12\ Sensitized is defined as confirmed beryllium positive blood 
lymphocyte proliferation test or beryllium positive broncho-alveolar 
lavage lymphocyte proliferation test without granuloma upon lung 
biopsy.
    \13\ Maier L.A. Beryllium Health Effects in the Era of the 
Beryllium Lymphocyte Proliferation Test. Appl Occup Environ Hyg 16(5): 
514-520 (2001).
    \14\ Stokes R.F., Rossman, M.D. Blood cell proliferation response 
to beryllium: analysis by receiver operating characteristics. J Occup 
Med 33: 23-28 (1991).
    \15\ Sub-clinical CBD is defined as beryllium sensitization plus 
granuloma upon lung biopsy with normal chest X-ray and lung function 
test.
    \16\ Kreiss K., Newman L., Mroz M., Campbell P. Screening Blood 
Test Identifies Subclinical Beryllium Disease. J Occup Med 31(7): 603-
608 (1989).
    \17\ Kent M., Robins T., Madl A. Is Total Mass or Mass of Alveolar-
Deposited Airborne Particles of Beryllium a Better Predictor of the 
Prevalence of Disease? A Preliminary Study of a Beryllium Processing 
Facility. Appl Occup Environ Hyg 16(5): 539-558 (2001).
    \18\ McCawley M. et al. Ultrafine Beryllium Number Concentration as 
a Possible Metric for Chronic Beryllium Disease Risk. Appl Occup 
Environ Hyg 16(5): 631-638 (2001).
    \19\ Deubner D., et al. Beryllium Sensitization, Chronic Beryllium 
Disease, and Exposures at a Beryllium Mining and Extraction Facility. 
Appl Occup Environ Hyg 16(5): 579-592 (2001).
    \20\ Kreiss K., Mroz M., Zhen B., Wiedemann H., Barna B. Risks of 
beryllium disease related to work processes at a metal, alloy, and 
oxide production plant. Occ. and Env. Medicine 54: 605-612 (1997).
                                 ______
                                 
                   Industrial Minerals Association,
                                     Pennsylvania Ave., NW,
                                     Washington, DC, June 19, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: The Industrial Minerals Association--North 
America (IMA-NA) wishes to express its appreciation for your 
introduction on H.R. 5554, the ``Workplace Safety and Health 
Transparency Act of 2006.'' IMA-NA member companies operating in the 
United States are impacted by both the Occupational Safety and Health 
Administration's (OSHA) and the Mine Safety and Health Administration's 
(MSHA) Hazard Communication Standards (HCSs). IMA-NA shares your 
concern about the Department of Labor's practice of incorporating by 
reference non-consensus standards set by outside standard-setting 
organizations without the benefit of notice and comment rulemaking 
required by the organic statutes establishing these agencies. IMA-NA 
supports H.R. 5554 and is asking its membership to contact their 
Members of Congress to urge them to cosponsor this legislation.
    IMA-NA has a number of concerns relative to the Department of 
Labor's reliance, particularly by OSHA, on independent organizations, 
such as the American Conference of Governmental Industrial Hygienists 
(ACGIH), as authoritative bodies in its HCSs. Your June 14, 2006 
subcommittee hearing on ``Addressing Concerns about the U.S. Department 
of Labor's use of Non-Consensus Standards in Workplace Health and 
Safety'' helped prompt IMA-NA to pen a letter to Assistant Secretary of 
Labor Edwin Foulke illustrating our concerns. A copy of that letter is 
enclosed and we respectfully request that it be introduced into the 
hearing record.
    In closing, IMA-NA appreciates your leadership on this issue and we 
look forward to working with you and your colleagues on securing the 
passage of H.R. 5554.
            Sincerely,
                                             Mark G. Ellis,
                                                         President.
                                 ______
                                 
                   Industrial Minerals Association,
                                     Pennsylvania Ave., NW,
                                     Washington, DC, June 19, 2006.
The Honorable Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
        Department of Labor, 200 Constitution Avenue, NW, Washington, 
        DC.

Re: OSHA Hazard Communication Standard
    Dear Secretary Foulke: The Industrial Minerals Association--North 
America (IMA-NA) is a trade association representing producers and 
processors of industrial minerals, as well as equipment manufacturers, 
railroad and trucking companies, law firms and consulting professionals 
that serve the industrial minerals industry. Industrial minerals are 
critical to the manufacture of glass, ceramics, rubber, pharmaceutical 
and cosmetic goods. They also are used to make foundry cores and molds 
used for metal castings, paints, metallurgical applications, refractory 
products and specialty fillers. IMA-NA member companies operating in 
the United States are impacted by the Occupational Safety and Health 
Administration's (OSHA) Hazard Communication Standard (HCS), hence this 
letter to you.
    The OSHA HCS, as interpreted and enforced by the Department of 
Labor, incorporates by reference both current and future Threshold 
Limit Values (TLVs) published by the American Conference of 
Governmental Industrial Hygienists (ACGIH). It requires that employers 
must consider hazardous any substance for which a TLV limit exists, now 
or in the future. As a result, when a TLV Limit is created or modified 
for a substance, the HCS automatically requires employers to include 
the new TLV Limits in Material Safety Data Sheets distributed to 
employees, distributors and retailers.
    IMA-NA has a number of concerns relative to OSHA's reliance on 
independent organizations, such as ACGIH, as authoritative bodies in 
its HCS. For example, the procedural deficiencies endemic in the ACGIH 
TLV development process make it inappropriate for OSHA to automatically 
incorporate these TLV Limits in a legally binding regulation. ACGIH 
TLVs lack the basic indicia typical of national consensus standards or 
the more rigorous procedural safeguards legislatively mandated for OSHA 
rulemakings. By way of illustration:
     Lack of Notice--OSHA does not provide notice to the public 
when the ACGIH identifies substances as being ``under study,'' subject 
to a ``notice of intended change'' or when a notice of intended change 
is adopted by the ACGIH Board of Directors. Consequently, potentially 
affected parties are not put on notice that a TLV Limit may be under 
development. Moreover, the available documentation supporting these 
developmental steps are not made freely available to the affected 
public by either ACGIH or OSHA.
     Consideration of the Best Available Information--neither 
ACGIH nor OSHA ensures that all published literature is evaluated in 
the Documentation of TLVs. A master list of relevant scientific 
literature is not compiled, and neither ACGIH TLV Committee members, 
the ACGIH Board of Directors, nor the affected public are aware when 
potentially relevant research is eliminated from the TLV Documentation, 
or upon what basis. There is no defined scientific methodology or audit 
process for the evaluation of draft TLV Limits.
     Professional Expertise--ACHIH has no qualification 
requirements for its TLV authors. It does not ensure that an array of 
professional disciplines is involved in the development of TLV Limits. 
The draft TLVs typically are authored by one, unidentified individual, 
who cannot possibly have all the necessary insights to evaluate the 
body of scientific evidence relevant to the establishment of an 
occupational exposure limit. Professional disciplines that properly 
should be reflected in the development of any occupational exposure 
limit are industrial hygienists, epidemiologists, toxicologists, 
biostatisticians, risk assessors, occupational physicians, etc.
     Bias/Conflicts of Interest--ACGIH has a policy that it 
claims prevents conflicts of interest and bias, including a form that 
ACGIH officials are supposed to complete listing potential conflicts. 
However, we understand that even where conflicts are identified by 
ACGIH the organization merely ranks them from high to low. Biases are 
not listed, identified or discussed. Where TLV Committee members have 
such significant conflicts that they must abstain from voting on TLV 
Limits, they nonetheless are free to participate in drafting them.
     Opportunity to be Heard--ACGIH typically limits public 
input on draft TLV limits to written submissions. There is no right to 
engage the author(s) of the draft TLV, or the TLV Committee, on the 
basis for the draft TLV, the emphasis (or lack thereof) placed on 
particular studies, factors weighing on the strength or weight of 
evidence, etc. Comments filed by other affected parties are not freely 
available for public inspection, rebuttal or affirmation. A consensus-
building process does not exist that would allow persons interested and 
affected by the draft TLV to reach substantial agreement on its 
adoption. Importantly, in the absence of necessary procedural 
safeguards, OSHA does not provide an opportunity for the affected 
public to comment on its adoption of the ACGIH TLVs in its HCS before 
they take regulatory effect.
     Independent Scientific Peer Review--ACGIH does not subject 
its notices of intended change or final TLV Limits to independent 
scientific peer review. In fact, ACGIH refuses to seek and obtain 
independent, outside peer review of TLV Limits and TLV Documentation, 
even after requested to do so. Review processes employed by scientific 
journals and federal administrative procedures for public participation 
are not observed, which otherwise might help alleviate deficiencies in 
draft TLVs or TLV Documentation. OSHA could, and should, provide for 
independent peer review of the ACGIH TLVs before adopting them in its 
HCS.
     Right of Appeal--There is no right of appeal when the 
ACGIH adopts a TLV. When the TLV Committee completes its work on 
notices of intended change, we understand a list of recommended actions 
is compiled for adoption by the ACGIH Board of Directors. Only after 
the ACGIH Board of Directors adopts a TLV Limit is the affected public 
made aware of ACGIH's determination. ACGIH has no procedures for 
reconsideration of TLV Limits by the Board of Directors or for an 
appeal from its decision. At a minimum, OSHA should afford an 
administrative appeal within the agency before adopting ACGIH TLVs in 
its HCS. When OSHA incorporates by reference a standard not developed 
through the Agency's rulemaking procedures, that decision by OSHA 
should be subject to judicial review.
    While not a complete list, the foregoing examples highlight some 
major procedural deficiencies in the ACGIH TLV development process. 
Either ACGIH TLVs must satisfy the requirements of a national consensus 
standard as specified in the OSHAct or OSHA should conduct notice and 
comment rulemaking as provided in that Act when incorporating TLV 
Limits in a legally binding agency regulation. What we would prefer to 
see implemented are the more rigorous procedural safeguards 
legislatively mandated for OSHA rulemakings.
    We respectfully request that you review the appropriateness of 
continuing to rely on ACGIH as an authoritative body in OHSA's HCS 
because ACGIH TLV Limits truly are not national consensus standards.
    Thank you for your consideration of this request.
            Respectfully submitted,
                                             Mark G. Ellis,
                                                         President.
                                 ______
                                 

   Prepared Statement of the Interlocking Concrete Pavement Institute

    Mr. Chairman, the Interlocking Concrete Pavement Institute (ICPI) 
fully supports passage and adoption of HR5554, the Workplace Safety and 
Health Transparency Act. We applaud the introduction of the bill, 
calling to light a serious concern for manufacturers who are subject to 
regulation using standards in which they have had no fair opportunity 
to participate or challenge. This matter directly affects members of 
ICPI, who have exposure to regulations developed by issued by OSHA.
    ICPI's principle concerns are addressed by the sections of HR5554 
that would restrict OSHA's use and consideration of certain outside 
sources of regulatory material, and we will focus on the OSHA issues.
    Fundamental requirements of substantive and procedural due process, 
federal acquisition law, the Date Quality Act and more establish a 
strong set of fundamental practices and principles designed to provide 
for openness, transparency, notice, hearings, opportunities for appeal 
and much more to allow all parties interested in a regulation to 
participate in the regulatory process. These principles sound in 
fundamental fairness and go to the heart of the integrity of the 
process.
    However, under current law, a large gap exists in the regulatory 
scheme that allows OSHA to act upon and incorporate by reference 
standards developed by non-governmental organizations that do not 
adhere to the quality control practices and procedures designed to 
assure the accuracy, validity and integrity of the standards-making 
process.
    Under current law, OSHA is allowed to use or incorporate by 
reference new regulatory standards issued by non-government entities 
whose motivations are unknown, whose possible conflicts of interests 
may not be disclosed, whose internal quality control procedures are 
beyond reach, whose key decision-making staff are unidentified and 
unavailable for interview, who act without holding public hearings or 
considering balanced testimony, and in fact need not meet or adhere to 
any reasonably acceptable degree of third-party accountability.
    Where present, these factors prevent many parties affected by such 
non-government standards from participating in any efforts to develop 
consensus regulations.
    In short, all these deficiencies may be summed up by saying that 
such standards are developed in a manner so lacking in consensus-
building procedures that they should be considered fatally flawed for 
the purposes of government use and should be utterly barred from use or 
consideration in OSHA regulations.
    HR5554 would repair the most imminent and egregious consequence of 
this gap in quality, fair process by prohibiting OSHA from promulgating 
or incorporating by reference any such non-government organization's 
regulatory action unless the Secretary affirmatively finds that (1) 
such determination has been adopted and promulgated by a nationally 
recognized standards-producing organization under procedures whereby it 
can be determined by the Secretary that persons interested and affected 
by the scope or provisions of the standard have reached substantial 
agreement on its adoption, (2) it was formulated in a manner which 
afforded an opportunity for diverse views to be considered; and (3) has 
been designated as such a standard by the Secretary after consultation 
with other appropriate Federal agencies.
    Such a finding and a summary of its basis shall be published in the 
Federal Register and shall be considered a final action subject to 
judicial review.
    The bill would also extend this obligation to the approval of state 
plans that may be influenced by or incorporated by reference in 
regulatory materials issued by non-government organizations.
    ICPI believes that these protections are necessary to avoid 
subjecting the regulated community to regulatory practices and schemes 
that would clearly be subject to challenge or disallowed altogether if 
they were used by OSHA. In fact, the current gap in the law could 
promote unsavory stratagems to establish unbalanced, invalid regulatory 
controls using surrogates for OSHA to do what OSHA may not do itself. 
ICPI recommends that entities be required to use analogues to the 
quality control required of OSHA, or OSHA should be completely barred 
from making any use of or enforcing the work product such 
organizations.
    Mr. Chairman, time is of the essence. Non-government organizations 
work every day taking action that may ultimately impact the regulated 
community.
    ICPI supports HR5554 in its entirety and urges its passage at the 
earliest possible time.
            With kind regards,
                                   Charles A. McGrath, CAE,
                                                Executive Director.
                                 ______
                                 
             National Association of Manufacturers,
                                1331 Pennsylvania Ave., NW,
                                     Washington, DC, June 26, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: On behalf of the National Association of 
Manufacturers (NAM), the nation's largest industrial trade association 
representing small and large manufacturers in every industrial sector 
and in all 50 states, I write to you today in support of H.R. 5554, the 
Workplace Safety and Health Transparency Act.
    H.R. 5554 will help ensure that any future guidelines put in place 
will be based on public notice and comment rulemaking. NAM believes 
that organizations that meet in private and do not permit stakeholders 
to participate in their proceedings should never be the basis for 
federal regulations. Specifically, your legislation will prohibit the 
Occupational Safety and Health Administration or the Mine Safety and 
Health Administration from incorporating any regulation based on a 
determination from a non-consensus organization. NAM supports the 
development of regulations through public notice and comment 
rulemaking-and delegating agency authority to outside non-consensus 
organizations violates that basic principle.
    The NAM thanks you for your continued leadership on regulatory 
fairness and safer workplaces. We look forward to continuing to work 
with you on these matters which are critical to both U.S. employers and 
their employees.
    Thank you again.
            Sincerely,
                                               Sandra Boyd,
                            Vice President, Human Resources Policy.
                                 ______
                                 

    Prepared Statement of the National Concrete Masonry Association

    Mr. Chairman, the National Concrete Masonry Association (NCMA) 
supports passage of HR5554, the Workplace Safety and Health 
Transparency Act.
    This matter directly affects members of NCMA, who have exposure to 
regulations developed by issued by OSHA. We will focus on the impact 
that HR5554 would have on OSHA's use of standards generated by non-
governmental organizations that generate standards on a non-consensus 
basis.
    We suggest that HR5554 would require OSHA to act consistently and 
fairly in restricting the NGO standards which influence it or are 
incorporated by reference in such OSHA regulations like the Hazard 
Communication rule. NCMA feels it is inappropriate for OSHA to 
incorporate information and standards whose development would not meet 
the procedural requirements for OSHA standards per se.
    Stakeholders in the regulated community need to have access to the 
regulatory development process. Transparency and openness in the 
process are important to ensure that the information, and the 
regulations they generate, have validity and will stand up to scrutiny 
as part of the consensus process.
    Today, a large gap exists in the regulatory scheme that allows OSHA 
to act upon and incorporate by reference standards developed by non-
governmental organizations that do not adhere to the quality control 
practices and procedures designed to assure the accuracy, validity and 
integrity of the standards-making process. OSHA is allowed to use or 
incorporate by reference new regulatory standards issued by non-
government entities whose motivations are unknown, whose possible 
conflicts of interests may not be disclosed, whose internal quality 
control procedures are beyond reach, whose key decision-making staff 
are unidentified and unavailable for interview, who act without holding 
public hearings or considering balanced testimony, and in fact need not 
meet or adhere to any reasonably acceptable degree of third-party 
accountability.
    In short, all these deficiencies may be summed up by saying that 
such standards are developed in a manner so lacking in consensus-
building procedures that they should be considered fatally flawed for 
the purposes of government use and should be utterly barred from use or 
consideration in OSHA regulations.
    HR5554 would repair the most imminent and egregious consequence of 
this gap in quality, fair process by prohibiting OSHA from promulgating 
or incorporating by reference any such non-government organization's 
regulatory action unless the Secretary affirmatively finds that (1) 
such determination has been adopted and promulgated by a nationally 
recognized standards-producing organization under procedures whereby it 
can be determined by the Secretary that persons interested and affected 
by the scope or provisions of the standard have reached substantial 
agreement on its adoption, (2) it was formulated in a manner which 
afforded an opportunity for diverse views to be considered; and (3) has 
been designated as such a standard by the Secretary after consultation 
with other appropriate Federal agencies.
    Such a finding and a summary of its basis shall be published in the 
Federal Register and shall be considered a final action subject to 
judicial review.
    HR5554 would extend this obligation to the approval of state plans 
that may be influenced by or incorporated by reference in regulatory 
materials issued by non-government organizations.
    NCMA supports HR5554, its goals and its terms, and urges its 
passage.
                                 ______
                                 

 Prepared Statement of the Society for Occupational and Environmental 
                                 Health

    SOEH opposes this proposed legislation because we believe that, if 
enacted, it would limit useful evidence-based information that our 
members and other p! ractiti oners in occupational and environmental 
health rely on to protect worker and community health and safety. We 
support time-tested science-based guidelines and information for 
federal regulation. However, while waiting for the regulatory actions 
to be completed, there is a need for information within the scientific 
and clinical communities to assist in maintaining the health of workers 
and others. Most clinicians are not trained in toxicology and therefore 
depend on resources such as the material safety data sheets (MSDS). The 
MSDS include information from sources such as the threshold limit 
values (TLV) from the American Conference of Governmental Industrial 
Hygienists, the National Toxicology Program (NTP) and the International 
Agency for Research on Cancer (IARC). The data from these organizations 
have been accepted by the occupational medicine community as well-
established, peer-reviewed sources of information to be used for 
clinical assessments as well as for industrial hygiene assessments. 
Accurate and up-to-date information on the MSDS is needed to protect 
not only workers but also our communities. Under this bill, this 
resource for clinicians and industrial hygienists would be seriously 
limited.
    We believe the Occupational Safety and Health Administration's 
(OSHA) current authority is sufficient for developing standards. OSHA 
appropriately takes into account the nature and weight of evidence for 
health hazards and considers the technical and economic feasibility of 
implementation from many sources.
    The Society for Occupational and Environmental Health is a non-
profit membership organization established in 1972 as a multi-faceted 
forum for academics, government policy makers, and industry and union 
representatives to formulate positions on public policy issues. We 
convene scientific meetings to address public health policy issues 
involving occupational and environmental health to provide a scientific 
basis for informed public policy decision-making.
    We believe this proposed bill will impede efforts to protect worker 
and community health and safety.
    Thank you for considering our comments,
            Sincerely,
                                              Denny Dobbin,
                                                             Chair.
                                 ______
                                 
                               Portland Cement Association,
                                                     June 21, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, Rayburn House Office Building, Washington, 
        DC.
    Dear Chairman Norwood: We respectfully submit this letter for the 
record of the recent legislative hearing on HR 5554 on behalf of the 
Portland Cement Association (PCA). PCA strongly supports HR 5554 and 
extends its thanks and gratitude to you for your leadership in this 
important public policy matter.
    PCA is a trade association representing cement companies in the 
United States and Canada. PCA's U.S. membership consists of 36 
companies operating 107 plants in 34 states and distribution centers in 
all 50 states servicing nearly every Congressional district. PCA 
members account for more than 97 percent of cement-making capacity in 
the United States and 100 percent in Canada.
    Portland cement is the powder which acts as the glue or bonding 
agent that, when mixed with water, sand, gravel and other materials, 
forms concrete. Cement is produced from various naturally abundant raw 
materials, including limestone, shale, clay and silica sand. Portland 
cement is an essential construction material and a basic component of 
our nation's infrastructure. It is utilized in numerous markets, 
including the construction of highways, streets, bridges, airports, 
mass transit systems, commercial and residential buildings, dams, and 
water resource systems and facilities. The low cost and universal 
availability of portland cement ensure that concrete remains one of the 
world's most essential and widely used construction materials.
    While PCA members support sound standards that protect the 
environment and employees, our members oppose scientifically invalid, 
non-consensus standards, and we do not feel the United States 
government should support such standards. Non-consensus standards are 
developed in closed meetings by unknown authors, which often include 
federal employees and grant recipients. Yet these can influence or 
become the basis for federal regulations. For example, the OSHA Hazard 
Communication Rule mandates that the latest edition of the ACGIH TLVs--
a non-consensus group by their own admission--be listed on Material 
Safety Data Sheets. Similarly, the MSHA Haz Com Rule mandates that the 
2001 ACGIH TLVs define whether a chemical is hazardous.
    These hundreds of recent ACGIH TLV were adopted by reference by 
OSHA and MSHA, without mandated rulemaking proceedings to examine their 
validity. Moreover, a number of DOL and HHS agency personnel served on 
the ACGIH Board of Directors or Committees and adopted or authored the 
recent TLVs, permitting conflicts of interest and bias to impact 
government rules without public disclosure.
    Non-consensus standards, like the ACGIH TLV, are scientifically 
suspect since the qualifications of their authors, and even their 
identity is kept secret, and they are no subjected to independent, 
outside expert peer review, like true scientific work products. These 
non-consensus standards not only cause harm to impacted industries 
through agency actions, but they also are used in tort litigation as 
alleged standards of care that have government support.
    PCA members were vindicated when a non-consensus standard (the 
ACGIH TLV for trona) was withdrawn by ACGIH in a public apology, 
following the favorable settlement of a lawsuit against ACGIH and DOL, 
in 2001 whereby ACGIH admitted that there were no health effects 
supporting the TLV, and that misconduct by its agent had occurred. Yet, 
adversely impacted parties should not be forced to litigate against 
these government supported and sanctioned non-consensus standard 
setting groups, and we believe that HR 5554 provides the needed 
sunshine on government actions to prevent future abuses.
    We urge passage of HR 5554, and again thank you for your 
leadership.
                                          Thomas J. Gibson,
                                             Senior Vice President.

                                 
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