THE OSHA RULEMAKING PROCESS 

HEARINGS

BEFORE THE 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

OF THE 

COMMITTEE ON EDUCATION AND 

THE WORKFORCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

HEARINGS HELD IN WASHINGTON, DC, JUNE 14 AND NOVEMBER 1, 2001 

Serial No. 107-19 

Printed for the use of the Committee on Education 

and the Workforce

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 2002 

80-244 pdf 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Internet: bookstore.gpo.gov Phone: (202) 512-1800 FAX: (202) 512-2250 

Mail: Stop SSOP, Washington, DC 20402-0001 
ii

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman 

THOMAS E. PETRI, Wisconsin GEORGE MILLER, California 

MARGE ROUKEMA, New Jersey DALE E. KILDEE, Michigan 

CASS BALLENGER, North Carolina MAJOR R. OWENS, New York 

PETER HOEKSTRA, Michigan DONALD M. PAYNE, New Jersey 

HOWARD P. “BUCK” McKEON, California PATSY MINK, Hawaii 

MICHAEL N. CASTLE, Delaware ROBERT E. ANDREWS, New Jersey 

SAM JOHNSON, Texas TIM ROEMER, Indiana 

JAMES C. GREENWOOD, Pennsylvania ROBERT C. “BOBBY” SCOTT, Virginia 

LINDSEY O. GRAHAM, South Carolina LYNN C. WOOLSEY, California 

MARK E. SOUDER, Indiana LYNN N. RIVERS, Michigan 

CHARLIE W. NORWOOD, JR., Georgia RUBEN HINOJOSA, Texas 

BOB SCHAFFER, Colorado CAROLYN McCARTHY, New York 

FRED UPTON, Michigan JOHN F. TIERNEY, Massachusetts 

VAN HILLEARY, Tennessee RON KIND, Wisconsin 

VERNON J. EHLERS, Michigan LORETTA SANCHEZ, California 

THOMAS G. TANCREDO, Colorado HAROLD E. FORD, JR., Tennessee 

ERNEST L. FLETCHER, Kentucky DENNIS KUCINICH, Ohio 

JIM DeMINT, South Carolina DAVID WU, Oregon 

JOHNNY ISAKSON, Georgia RUSH D. HOLT, New Jersey 

BOB GOODLATTE, Virginia HILDA L. SOLIS, California 

JUDY BIGGERT, Illinois SUSAN DAVIS, California 

TODD RUSSELL PLATTS, Pennsylvania BETTY McCOLLUM, Minnesota 

PATRICK J. TIBERI, Ohio 

 RIC KELLER, Florida 

 TOM OSBORNE, Nebraska 

 JOHN ABNEY CULBERSON, Texas 

Paula Nowakowski, Chief of Staff 

John Lawrence, Minority Staff Director

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

 CHARLIE NORWOOD, Georgia, Chairman

JUDY BIGGERT, Illinois, Vice Chairman MAJOR R. OWENS, New York

CASS BALLENGER, North Carolina DENNIS KUCINICH, Ohio 

LINDSEY O. GRAHAM, South Carolina PATSY T. MINK, Hawaii 

JOHNNY ISAKSON, Georgia LYNN C. WOOLSEY, California 

BOB GOODLATTE, Virginia LORETTA SANCHEZ, California 

RIC KELLER, Florida HILDA L. SOLIS, California 

JOHN ABNEY CULBERSON, Texas 
iii

Table of Contents

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE..................................................................... 2

OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE..................................................................... 3

STATEMENT OF VICTOR REZENDES, MANAGING DIRECTOR FOR 

STRATEGIC ISSUES, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON, 

D.C.................................................................................................................................. 6

STATEMENT OF FRANK WHITE, VICE PRESIDENT, ORGANIZATION 

RESOURCES COUNSELORS, INC., WASHINGTON, D.C....................................... 8

STATEMENT OF HENRY CHAJET, ESQ., PARTNER, PATTON BOGGS, LLP, 

WASHINGTON, D.C................................................................................................... 10

STATEMENT OF WILLIS J. GOLDSMITH, ESQ., PARTNER, JONES, DAY, 

REAVIS & POGUE, WASHINGTON, D.C................................................................ 12

STATEMENT OF MARGARET SEMINARIO, DIRECTOR, DEPARTMENT OF 

OCCUPATIONAL SAFETY AND HEALTH, AFL-CIO, WASHINGTON, D.C. .... 14

APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE 

NORWOOD, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, 

COMMITTEE ON EDUCATION AND THE WORKFORCE ................................... 33

APPENDIX B - WRITTEN OPENING STATEMENT OF RANKING MEMBER 

MAJOR OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, 

COMMITTEE ON EDUCATION AND THE WORKFORCE ................................... 37

APPENDIX C - WRITTEN STATEMENT OF VICTOR REZENDES, MANAGING 

DIRECTOR FOR STRATEGIC ISSUES, U.S. GENERAL ACCOUNTING OFFICE, 

WASHINGTON, D.C................................................................................................... 41

APPENDIX D - WRITTEN STATEMENT OF FRANK WHITE, VICE PRESIDENT, 

ORGANIZATION RESOURCES COUNSELORS, INC., WASHINGTON, D.C. .... 61

APPENDIX E - WRITTEN STATEMENT OF HENRY CHAJET, ESQ., PARTNER, 

PATTON BOGGS, LLP, WASHINGTON, D.C. ........................................................ 71

APPENDIX F - WRITTEN STATEMENT OF WILLIS J. GOLDSMITH, ESQ., 

PARTNER, JONES, DAY, REAVIS & POGUE, WASHINGTON, D.C. .................. 81
iv

APPENDIX G - WRITTEN STATEMENT OF MARGARET SEMINARIO, 

DIRECTOR, DEPARTMENT OF OCCUPATIONAL SAFETY AND HEALTH, 

AFL-CIO, WASHINGTON, D.C. ................................................................................ 97

APPENDIX H – SUBMITTED FOR THE RECORD, LETTER FROM 

CONGRESSMAN CHARLIE NORWOOD, CHAIRMAN, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, TO THE HONORABLE ELAINE CHAO, 

SECRETARY OF LABOR, MAY 23, 2001 .............................................................. 129

APPENDIX I – SUBMITTED FOR THE RECORD, LETTER FROM RICHARD 

STRANO, EXECUTIVE DIRECTOR, AMERICAN CONFERENCE OF 

GOVERNMENTAL INDUSTRIAL HYGIENISTS, TO THE HONORABLE 

ELAINE CHAO, SECRETARY OF LABOR, JUNE 13, 2001................................. 133

APPENDIX J – SUBMITTED FOR THE RECORD, “RECENT LEGAL ACTIONS 

CHALLENGE ACGIH AND THREATEN THE PROFESSION,” ACGIH TODAY, 

VOLUME 9, NO. 1, WINTER 2001 .......................................................................... 139

APPENDIX K – SUBMITTED FOR THE RECORD, “ACGIH CONTINUES TO 

DEFEND AGAINST TLV LAWSUITS,” ACGIH TODAY, VOLUME 9, NO. 3, 

SUMMER 2001 .......................................................................................................... 143

APPENDIX L – SUBMITTED FOR THE RECORD, “ACGIH CHAIR SCOTT 

MERKLE SPEAKS TO OPENING SESSION ON LAWSUITS CHALLENGING 

ACGIH TLVS,”AIHCE CONFERENCE CONNECTION, JUNE 5, 2001............... 147

Table of Indexes.......................................................................................................... 151

 Table of Contents for November 1, 2001 Hearing..........................................153 

 Table of Indexes for November 1, 2001 Hearing..........................................251
1

“MAKING SENSE OF OSHA RULEMAKING: 

 A THIRTY-YEAR PERSPECTIVE” 

___________________

Thursday, June 14, 2001 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

 U.S. House of Representatives 

Washington, D.C. 

 The Subcommittee met pursuant to notice at 10:03 a.m., in Room 2175, Rayburn 

House Office Building, Honorable Charlie Norwood, Chairman of the Subcommittee 

presiding.

 Present: Representatives Norwood, Ballenger, Keller, Culberson, Owens, 

Kucinich, and Mink. 

 Staff present: Victoria Lipnic, Workforce Policy Counsel; Molly Salmi, 

Professional Staff Member; Stephen Settle, Professional Staff Member; Heather 

Oellermann, Legislative Assistant; Heather Valentine, Press Secretary; Michael Reynard, 

Deputy Press Secretary; Patrick Lyden, Professional Staff Member; Deborah L. 

Samantar, Committee Clerk/Intern Coordinator; Peter Rutledge, Minority Senior 

Legislative Associate; Maria Cuprill, Minority Legislative Associate; Brian 

Compagnone, Minority Legislative Aide;

Chairman Norwood. A quorum being present, the Subcommittee on Workforce 

Protections will now come to order. The Subcommittee is meeting today to hear 

testimony on “Making Sense of OSHA Rulemaking: A Thirty Year Perspective.” 

 Under Rule 12(b) of the Committee rules, any oral opening statements at hearings 

are limited to the Chairman and Ranking Minority Member. This will allow us to hear 

from our witnesses sooner and help Members keep to their busy schedules. Therefore, if 

other Members have statements, they can be included in the hearing record. Without 

objection, the record will be held open for 14 days so that all statements, testimony, and 

other material referenced during the hearing may be inserted in the hearing record. 
2

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

We are here today to discuss a topic of endless fascination, frustration, and 

complexity, OSHA's standard rulemaking process. I say fascination because it has been a 

constant source of wonder to me how everything Congress manages to legislate seems to 

get turned on its head in the regulatory process. I say frustration because it seems to me 

there isn't anyone, I dare say, on either side of the aisle that is completely satisfied with 

OSHA's rulemaking efforts. 

 It is no secret that I have been an outspoken critic of OSHA. It will further come 

as no surprise that I am not a fan of excessive legislation. That being said let me note this. 

Today marks the first time our Subcommittee has met this Congress to address an OSHA 

matter. I hope that this will be a first step in trying to find some common agreement 

about OSHA, and I don't expect that to be easy, but I, for one, am willing to try. 

 It seems to me that the easiest thing for all of us in this room to do is accept the 

status quo of our constant disagreement about OSHA matters. That does not strike me as 

a very responsible way to discharge our duties with respect to this agency. It certainly 

will do nothing to advance the larger and more important issue of achieving safe and 

helpful workplaces for American workers. I am hopeful that Mr. Owens and our 

Committee colleagues on both sides of the aisle will look for ways we can work together 

to bring about meaningful improvements to the safety of our nation's workplace. 

I would also like to take a moment to welcome our witnesses. We appreciate their 

willingness to take time out of their busy schedules to testify before this Subcommittee. I 

note that we have an abundance of lawyers on our panel today. Since my background is 

in science, I especially want to thank Mrs. Seminario for being here to offer a perspective 

from beyond the bar. We are obviously lacking a participant from OSHA on our panel 

today. I am pleased to see that the Bush administration yesterday announced the 

nomination of the new Assistant Secretary. Once Mr. Henshaw is in place, I'll look 

forward to having him here to provide his observations about today's topic as well as his 

goal for this agency. 

 When we first thought to review and try to make sense of OSHA's rulemaking 

effort, the immediate reaction from some was that would be a bit like watching paint dry. 

Now, I admit that the workings of the regulatory process are not the liveliest topics.

However, let me suggest for you three reasons why this is an important subject for 

Congress to review. 

 First, in fiscal year 2001, OSHA will spend nearly $15 million as a line item in its 

budget on safety and health standards. We certainly have some obligation to determine if 

that is taxpayer money well spent. Moreover, in its recently published unified regulatory 

agenda, OSHA lists no less than 45 items at some stage in the rulemaking process. 
3

Second, in April we passed the 30th anniversary of the effective date of the OSH 

Act. Anniversary dates always provide a nice focal point for reflection and observation.

It also strikes me that this past March we may have passed a point of critical mass when it 

comes to OSHA rulemaking. I refer, of course, to the congressional action on the 

ergonomics rule. 

 It has been a great temptation for this hearing to be a rehash of everything wrong 

about the ergonomics rulemaking. I have every expectation that each of our witnesses 

today could express some fairly strong opinions about that subject. That is not our intent 

today. Rather, given that we have 30 years' worth of OSHA rulemaking to reflect upon, I 

hope we can consider some observations in a fair, objective, and honest manner about 

what has worked well in OSHA rulemaking and what has not, and about what the current 

state of affairs is. 

 There is a third reason we should review this area of OSHA activity. When 

Congress passed the OSH Act in 1970, it gave OSHA the authority, under Section 6 of 

the Act, to adopt national consensus standards and to issue through rulemaking safety and 

health standards for the protection of American workers. It gave OSHA the authority to 

enforce those standards in the workplace. That is an extraordinary exercise of power and 

of responsibility. When it comes to rulemaking, we should be very, very mindful of that. 

 We're all aware that OSHA deals with complex, often controversial, issues within 

a complicated regulatory process, but complexity and controversy should not be things 

we shy away from, given the charge to this agency. In order to maintain a necessary level 

of trust and confidence between the agency and the regulated community, the 

responsibility given to OSHA requires a degree of transparency and vigilance about the 

process. We have a role in that, Congress included. It is entirely appropriate after 30 

years of effort that we look at how it is OSHA goes about discharging its authority and 

responsibility.

 I look forward to this hearing today, to a thorough and informative discussion. I 

would now like to yield the floor to the distinguished Ranking Member, Mr. Owens, for 

his opening statement. 

WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE – SEE APPENDIX A 

OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

Thank you, Chairman Norwood. Again, I'm quite impressed with the broad and 

deep insight of your opening statement. I want to welcome today's witnesses. There's no 

question that we can benefit from a clearer understanding of the rulemaking process. I 
4

look forward to your testimony. 

 Anyone who's concerned about the health and safety of workers has to be 

concerned about the degree of difficulty and the excessive time that it takes OSHA to 

promulgate safety and health standards. I suppose we could also say that the long time 

period guarantees thoroughness. On average, it takes OSHA ten years to develop and 

promulgate a standard. 

 The advance notice of proposed rulemaking for the respiratory protection 

standard was issued in 1982. The final rule was not issued until 1998. The Construction 

Advisory Committee recommended the development of a standard for scaffolds in 1977. 

A notice of proposed rulemaking was not issued until 1986, and the final standard was 

not issued until 1996. The lock-out/tag-out standard took nine years from the time that 

the notice was issued to the final rule. The confined space entry standard took 18 years 

from the first notice to the final rule. The most important point to remember is that 

workers are continuing to be killed or injured during the period that the agency is 

developing the standard. 

 We limit the amount of time that any individual can serve as President to eight 

years. The average tenure of an Assistant Secretary for OSHA is only two and a half 

years. It should be obvious to everyone that there will be problems with continuity when 

it typically requires four different OSHA administrations and three different presidential 

administrations to work on and develop a single standard. I'm therefore particularly 

interested in any ideas the witnesses may have that might help to formalize or regularize 

the manner in which OSHA establishes priorities. 

 Last year the Congress, at least implicitly, acknowledged the breakdown of the 

standard-making process at OSHA when we enacted the needlestick legislation.

Recognizing that it would take years for OSHA to amend the blood-borne pathogen 

standard, the Congress stepped in and did so directly. As a result, safer needles will be 

widely used more quickly, and health workers who may otherwise have been exposed to 

hepatitis or HIV will be protected. 

 I'm not optimistic that this Committee or this Congress is likely to be able to do 

much to improve the standard-making process, but there may well be specific areas, 

similar to the blood-borne pathogen standard and the needlestick bill, where we can act in 

a timely bipartisan manner to update a specific standard. I want to go on record now to 

express my willingness to work with Chairman Norwood toward that end. 

 There is one aspect of today's hearing, however, that I find to be unseemly. Mr. 

Chairman, you've chosen to invite Mr. Chajet to testify today. Mr. Chajet is here to 

reiterate allegations that have been made in a pending lawsuit, Anchor Glass Container 

Corporation, et al., v. ACGIH, U.S. DOL, and U.S. DHHS. In my view, it is, as a general 

matter, inappropriate for a Congressional Committee to involve itself in pending 

litigation. The matter is before the court. Let the court have its say, and when they are 

done, if we disagree, we can act. 
5

However, what is questionably irresponsible and inappropriate is to provide a 

forum for only one side in that pending litigation to present its views while denying the 

other side that same opportunity. In order that the record might be just a little balanced, I 

ask unanimous consent to enter into the record a letter from Chairman Norwood to the 

Secretary of Labor regarding ACGIH guidelines, a letter from ACGIH to the Secretary of 

Labor responding to the concerns raised by Mr. Norwood, and several articles from 

ACGIH regarding the legislation. Finally, Mr. Chairman, I ask that the record be held 

open in the event that ACGIH wishes to submit a statement in response to Mr. Chajet's 

statement. 

 Let me be clear, however, that I do not think that such a submission evens the 

score. Inviting Mr. Chajet to testify without affording a similar opportunity to ACGIH is 

clearly an ambush, and this kind of ambush, particularly when it involves pending 

litigation, is, in my view, a misuse of the Committee and a disservice to the Congress. 

 I yield back the balance of my time. 

WRITTEN OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE – SEE APPENDIX B 

Chairman Norwood. I thank you, Mr. Owens. 

 As you know, the record is open for 14 days, and what is entered into it is up to 

the discretion of the Chairman. I'm certainly happy, though, to have the letter I wrote 

entered into the record. I wish everybody I know could read it. 

Now I would like to introduce our panel of witnesses: 

Mr. Victor Rezendes from the General Accounting Office. Thank you, sir, for 

being here. 

Mr. Willis J. Goldsmith from Jones, Day, Reavis & Pogue, thank you, sir. 

Mr. Frank White, Organization Resources Counselors, Inc. Thank you, sir, for 

being here. 

Ms. Margaret Seminario, Department of Occupational Safety and Health. We 

thank you, ma'am, for being here. 

Mr. Henry Chajet from Patton Boggs. Thank you, Mr. Chajet. I'm delighted that 

you're with us, too. 
6

Let me remind the witnesses that under our Committee rules they must limit their 

oral statements to five minutes, but their entire written statement will appear in the 

record. We will also allow the entire panel to testify before we question the witnesses. 

 With that said, Mr. Rezendes, would you please begin your testimony? 

 STATEMENT OF VICTOR REZENDES, MANAGING DIRECTOR FOR 

STRATEGIC ISSUES, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON, 

D.C.

Mr. Chairman, I'm pleased to be here today to discuss the federal rulemaking. 

 In brief, the congressional and executive branch rulemaking requirements are 

clearly voluminous and require a wide variety of actions. This is not my visual aid here, 

but someone put up the ICF Consulting chart of The Regulatory Process 

(www.icfconsulting.com), and I think it gives you a sort of a flavor of the kinds and 

complexities of actions and requirements that are out there. 

 While it's also clear that the federal agencies sometimes take years to develop a 

final rule, we have not examined the extent to which the rulemaking requirements are 

responsible for the long time frames. Our reviews do, however, demonstrate that the 

requirements are frequently not as effective as they could be. In some cases the lack of 

effectiveness can be traced to how the requirements are being implemented at the 

agencies. In other cases, though, the requirements themselves are the problem. 

 Let me briefly identify some of the major statutory requirements. The most 

longstanding and broadly applicable is the Administrative Procedures Act, which 

generally requires agencies to publish a notice of proposed rulemaking and obtain 

comments. However, we reported that about half of the over 4,000 final regulatory 

actions published in 1997 were issued without a notice of proposed rulemaking. 

 The notice and comment procedures do not apply when an agency finds, for good 

cause, that it would be impracticable, unnecessary, or contrary to the public interest. 

Without a notice and comment period, however, the public's ability to participate in the 

rulemaking process is limited. 

 Another major requirement is the Paperwork Reduction Act. Under the Act, 

agencies must justify collection of information from the public. The Act also requires 

OMB to set burden reduction goals. However, we've reported that the government-wide 

paperwork burden has gone up, not down, since the Act has been passed. 

 The Regulatory Flexibilities Act and the Small Business Regulatory Enforcement 

Fairness Act focus on the effect that regulations have on small entities. The trigger for 

action for both statutes is an agency's determination that a rule may have a significant 

economic impact on a substantial number of small entities. Agencies' interpretation of 
7

this requirement varies, with some agencies establishing a high threshold that limits the 

Act's effectiveness. 

 The crosscutting statutory requirements that I've just listed are by no means the 

only ones that guide an agency's rulemaking. Regulations generally start with an act of 

Congress, and are the means by which are laws are implemented. 

 We examined the issue of regulatory discretion and found that in many cases the 

agencies had little or no discretion in establishing regulatory requirements that businesses 

viewed as burdensome. For example, we concluded that the Occupational Safety and 

Health Act gave OSHA no discretion whether to hold companies rather than individuals 

responsible for violations of health and safety rules. 

 OSHA also follows numerous procedural and consultative steps for issuing a rule 

that may or may not be statutorily driven. For example, interested parties who comment 

on proposed OSHA rules may request a public hearing when none has been announced.

When such a hearing is requested, OSHA says it will schedule one. 

Similarly, agency rulemaking is often significantly influenced by court decisions, 

and OSHA rulemaking is a good case in point. For example, in the 1980 benzene 

decision, the Supreme Court ruled that before promulgating new health standards, OSHA 

must demonstrate that the particular chemical regulated poses as a significant risk, and 

that the new proposed limit will substantially reduce that risk. This decision effectively 

requires OSHA to evaluate the risk associated with exposure to a chemical and to 

determine that the risks are significant before issuing a standard. 

 Other court decisions have required OSHA rulemaking to demonstrate the 

technical and economic feasibility of its requirements. 

 Finally, Mr. Chairman, the Congressional Review Act gives Congress an 

opportunity to review rules before they become effective and to disapprove those that 

they find objectionable. GAO's role under the Act is to provide the Congress with 

information on how agencies have satisfied the procedural requirements of these acts. 

 Thank you, Mr. Chairman. 

WRITTEN STATEMENT OF VICTOR REZENDES, MANAGING DIRECTOR FOR 

STRATEGIC ISSUES, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON, 

D.C. – SEE APPENDIX C 

Chairman Norwood. Thank you, Mr. Rezendes. I'll be anxious to ask questions. 

 Mr. White, you're up, sir. Five minutes. 
8

STATEMENT OF FRANK WHITE, VICE PRESIDENT, ORGANIZATION 

RESOURCES COUNSELORS, INC., WASHINGTON, D.C. 

Thank you, Mr. Chairman. I'm extremely pleased to appear here in a bipartisan 

spirit to explore OSHA's rulemaking process and what might be done to make it more 

effective and credible as OSHA enters its fourth decade. 

 To set the stage, I'd first observe that in enacting the Occupational Safety and 

Health Act, as well as the Mine Safety and Health Act, Congress established criteria for 

standards-setting that were really designs to optimize worker protection. Indeed, OSHA 

has largely succeeded, in my view, in issuing and defending the kinds of protective 

standards that Congress envisioned, resulting in landmark protections for workers on a 

wide array of serious health and safety risks. 

 Certainly over the years, OSHA rulemaking has always been controversial and 

adversarial, but in recent years it does seem to have become more contentious, 

politicized, cumbersome, and time-consuming, almost to the point of complete 

stagnation. The problems are not solely ones of timeliness, but increasingly seem to be 

related to the credibility of both the process and the products themselves. 

 As a way of beginning to assess the rulemaking process and what improvements 

might be considered, let me make two observations. First, each new Secretary of Labor 

and head of OSHA have extremely broad authority to determine which issues they 

choose to address through rulemaking, in what order, and at what pace to address them. 

 A close examination of many of the OSHA standards that have taken the longest 

to issue, and Mr. Owens has reviewed some, will reveal that somewhere during the 

course of the rulemaking express or tacit changes in priorities, resource allocations, 

political leadership and philosophy had much to do with the cumulative delay. 

 The second observation I'd make is that there's clearly an important balance to be 

struck between the need to complete the rulemaking in a timely manner and the need for 

full participation of the affected parties and full consideration in the record. The OSHA 

rulemaking process has become extraordinarily complex, demanding, and encumbered, 

more so than it even was five years ago. 

 It's also important to recognize that a great many, and perhaps the vast majority of 

requirements related to the OSHA rulemaking process are not even within the authority 

of OSHA to control or alter, and Mr. Rezendes has discussed some of those. Even 

revisions to the Occupational Safety and Health Act itself would leave unaffected many 

of those requirements. A host of other statutory mandates as well as executive branch 

requirements for regulatory analyses and review must be followed during the rulemaking 

process. In addition, well-established court law requires OSHA to undertake the kinds of 

extensive analyses of rulemaking records that result in preambles to OSHA rules of 300 

pages or more. 
9

Now, with this background, I'd like to offer a few possible starting points for 

improvements of OSHA's process that may, at least in part, assist in improving both its 

credibility and timeliness. I point to at least six general stages of the rulemaking process: 

 Stage one would be determining priorities. This is a perennial weakness for 

OSHA. The historical lack of any credible, rational, priority-setting process or subtle 

criteria for determining which safety and health issues should be addressed through 

standard-setting has allowed OSHA to shift its priorities almost on a dime, as I've 

mentioned earlier, with almost no accountability. 

 I would suggest using a model similar to that used by NIOSH in developing its 

National Occupational Research Agenda. This was a process that involved the 

participation of a wide spectrum of agency stakeholders, not only in the initial selection 

phrase of priorities, but in the ongoing development of those priorities and the execution 

and the resulting research activities themselves. It's this ongoing stakeholder participation 

in the process that was missing from OSHA's failed attempt at prioritization in 1994. 

 Stage two of the process I call initiation of rulemaking and collection of evidence.

These, too, are critical steps in the process and mishandling of them frequently gets 

OSHA off on the wrong foot, at least as far as the affected stakeholders are concerned. 

While there's certainly no best or right way to proceed, I would agree with NACOSH 

that, in general, advance notices of proposed rulemaking should be discouraged and used 

only on a very limited basis. 

 I do believe that the issuance of pre-proposal drafts of standards can be a useful 

device for receiving early input. I also believe that pre-proposal stakeholder meetings 

can be valuable if there's a more robust and, again, an ongoing process that would include 

prompt feedback and follow-up to the stakeholders; another example of the ongoing 

involvement of the stakeholders. 

 Now we come to three stages that are really internal stages by OSHA, and those 

are: evaluating the evidence, making scientific and policy decisions, and writing the 

standard itself. It's with these three intertwined, but distinct, internal steps that OSHA can 

make the greatest strides in terms of improving timeliness. 

 Again, OSHA has struggled with this for many years. But, frankly, the key to 

making a rulemaking process work internally is really management commitment and 

leadership, the same things that make safety and health programs work. There must be a 

clear focus and commitment to getting the job done. OSHA leadership must understand 

the process, have somebody in the front office who can guide and control the process, 

and there must be an internal process that allows top officials to really know what's going 

on at all times, and to make decisions on critical issues as the process goes forward. 

 Finally, the sixth stage is what I call the rollout and follow-up process, and this 

stage I think offers the greatest opportunity for improvement related to the credibility of 

OSHA standards. I would argue that this is the area in which OSHA has simply dropped 

the ball on too many occasions. By that I mean that the agency has done relatively little 

in a proactive way to truly prepare the affected public for the implementation of many of 
10

its new standards. 

 It should be apparent that the issuance of a new standard should be part of a 

broader strategy of assistance and outreach and training. Yet OSHA really does very 

little of that, and needs to do it in a much more timely manner so that clients' directives 

and training materials simply must be issued concurrently with the standard. 

 The last sort of significant deficit at this back end of the rulemaking process is the 

almost uniform failure to evaluate the effectiveness of a new standard once it's issued, so 

that OSHA doesn't go back three or five years later and say this standard has worked, or 

here's what we could have done more effectively. 

 This concludes my prepared remarks. 

WRITTEN STATEMENT OF FRANK WHITE, VICE PRESIDENT, ORGANIZATION 

RESOURCES COUNSELORS, INC., WASHINGTON, D.C. – SEE APPENDIX D 

Chairman Norwood. Thank you very much, Mr. White. We appreciate you being here. 

Mr. Chajet, you're recognized for five minutes. 

STATEMENT OF HENRY CHAJET, ESQ., PARTNER, PATTON BOGGS, LLP, 

WASHINGTON, D.C. 

Thank you, Mr. Chairman, and Members of the Committee. Good morning to 

you. It's my pleasure and honor to appear before you this morning to talk about the 

rulemaking process on issues that affect all of our employees and the workers around the 

country. The power of the Federal Government to regulate workplaces is a vast and 

important power that the Congress of the United States entrusted to several different 

agencies. The entrusting of that power comes with a tremendous amount of 

responsibility, Mr. Chairman, that the power not be abused. 

 The power to create rules and enforce them is a matter on which the United States 

probably spends in excess of a billion dollars a year, if you add up the OSHA budget, the 

MSHA budget, the NIOSH budget, and other related Institutes that work on the creation 

and enforcement of health and safety standards. It's a huge resource that needs to be 

properly utilized. 

 I'm here to talk about one particular part of that effort. There's no question in my 

mind, after working on rulemakings in health and safety for my entire career that the 

system is broken and needs to be fixed. The one part that I would like to focus on, Mr. 

Chairman, is the use of privately created standards by the Federal Government that are 
11

not subject to the review of our elected officials or of the court system. 

 We have in place a system that demands from our Congress an open, transparent, 

and fair process to create rules. It demands review by the courts. It demands review by 

the Congress when appropriate. Federal agencies use standards that are developed in 

secret by outside groups, and federal employees participate in those standard-setting 

activities behind closed doors without giving all parties access to the information, the 

materials, the meetings, or the activities. Then they come back and create a standard in 

those private situations, and those standards are then incorporated by reference or used by 

the federal agencies and enforced. It avoids the openness, the transparency, the fairness 

and the judicial review that's available for standard setting as intended by this Congress. 

It's this part of the rulemaking system that I would like to focus on, the use of nonconsensus standard-setting organizations. 

There are excellent standard-setting organizations that operate in the open, with 

consensus by all parties, and produce very important work to protect our country. The 

National Fire Protection Association, and the ANSI standards do a superb job.

 On the other hand, there are a couple of organizations that are directly 

incorporated by reference in our regulations. One of them is the American Conference of 

Governmental Industrial Hygienists, ACGIH. OSHA's rules and MSHA's rules 

incorporate by reference the standards that this organization produces. In the hazard 

communication rules, if ACGIH labels a substance as hazardous, that tag must be 

repeated on the training materials and on the material safety data sheets and products. 

The reputation of those products can be defamed and industries can be harmed. On the 

other hand, if they publish a standard that is too high, employees can be harmed. 

 This process of government employees participating in standard setting outside 

the agencies, and the use of and reliance on those standards, is an avoidance of the 

rulemaking process that's mandated by Congress. Secret standard setting has to be 

examined closely for its impact on how the process works. There is a role, but perhaps 

that role is in a formalized advisory committee, open to all parties. Perhaps time limits 

are needed for the process, but the existing system needs to be carefully looked at for the 

abuse that it allows. 

 Thank you, Mr. Chairman. 

WRITTEN STATEMENT OF HENRY CHAJET, ESQ., PARTNER, PATTON BOGGS, 

LLP, WASHINGTON, D.C. – SEE APPENDIX E 

Chairman Norwood. Mr. Goldsmith, you are recognized for five minutes, sir.
12

STATEMENT OF WILLIS J. GOLDSMITH, ESQ., PARTNER, JONES, DAY, 

REAVIS & POGUE, WASHINGTON, D.C. 

Thank you, Mr. Chairman, and Members of the Subcommittee. I appreciate the 

opportunity to testify before you this morning. I think there are basically two main flaws 

in OSHA's rulemaking process about which everyone agrees. 

The first is that it has become intensely political, much more so than it ever has 

been. Of course, the political aspect of the rulemaking process is inevitable, and it's a 

good thing to a point, but to the degree to which the process becomes so highly 

politicized, it decreases stakeholder confidence and trust in the process. This, of course, 

increases as the process itself becomes less transparent. 

 As a general matter, as Ranking Member Owens pointed out, the process is far too 

slow. In its 30-year history the agency has promulgated approximately 45 standards in 

the safety area and approximately 30 health standards. They take years in certain 

instances to promulgate, indeed, decades. 

 Unfortunately, the negotiated rulemaking process is really not much better. The 

negotiated standards for the steel erection process in the construction industry, which I 

think it's fair to say is a fairly simple and straightforward process, took seven years to 

come to a conclusion. Of course, most standards that are promulgated in the rulemaking 

process are challenged by one party or another in court, and that, of course, adds time to 

the entire process. There are, I believe, possible solutions to this problem. The key is to 

make things both quicker and less politically driven. 

 One suggestion would be to consider amending the Act to create an independent 

agency outside of the Department of Labor to set standards. One version of the OSH Act 

as originally proposed and introduced in Congress, and, in fact supported by 

Congressional Republicans, included provisions to place the authority for establishing 

occupational safety and health standards in an independent agency. 

 Now, as an example, the Consumer Product Safety Commission is an independent 

agency made up of three members appointed by the President that must have members 

from both political parties. All rulemaking activities must be approved by a majority vote 

of the Commission. 

 A second proposal would be a process of peer review to ensure that the standards 

have a scientific basis. OSHA is often criticized for failing to properly analyze the 

scientific evidence underlying a problem. One way to minimize these criticisms is for all 

controversial scientific issues to be examined by an objective, independent group of 

individuals who clearly are qualified in the relevant field. 
13

Selection of the individuals, of course, would be key, and there must be a way to 

select qualified, objective persons who have no financial or other interest in the outcome 

of any proposed rule. More to the point, I believe, these individuals have to be provided 

with some standard by which to judge scientific evidence, and, under any circumstances, 

whether the Act is amended or the rulemaking process is changed in any way, the agency 

should be held to some standard in judging scientific evidence. 

 What I would propose in that regard is a Daubert type of standard, as has been 

imposed by the courts under the Federal Rules of Evidence. The Daubert standard 

requires the trial courts to evaluate scientific evidence and scientific theories to determine 

whether they're reliable and relevant. The analysis depends on a theory or a technique's 

ability to satisfy a number of tests. Whether the technique, for example, enjoys general 

acceptance within the scientific community, whether the methodology has been tested, 

and so on. 

 There is no reason not to hold the Department of Labor or an independent agency 

to these standards, no matter what happens with any amendments to the Act. The best 

available evidence of Section 65 of the Act, I believe, is too low a bar, allowing the 

agency to regulate based on virtually no evidence at all if it chooses to do so. 

 Finally, I would suggest that there be better defined rules and processes in terms 

of how the rulemaking is itself conducted, no matter if it proceeds under the Act as we 

currently know it or whether the Act is amended. 

 One way to eliminate some of the political influence from the rulemaking process 

and to speed up the process is to have better defined procedural rules, and a person 

involved in the rulemaking process that can actually enforce those rules. The 

administrative law judge who is now designated to preside over an OSHA rulemaking 

really has no meaningful function at all. He or she simply marks exhibits and watches 

the clock to see how much has been used by witnesses. 

 There are regulations that govern the rulemaking process. I believe those 

regulations are too vague, and need to be substantiated with specific rules. Strengthening 

the procedural rules and allowing the administrative law judge who presides over the 

hearing to actually enforce those rules, and to deviate from them if necessary, basically to 

act like a judge, would go a long way toward fixing this process. 

 Thank you, Mr. Chairman, for this opportunity to present my views. 

WRITTEN STATEMENT OF WILLIS J. GOLDSMITH, ESQ., PARTNER, JONES, 

DAY, REAVIS & POGUE, WASHINGTON, D.C. – SEE APPENDIX F 

Chairman Norwood. Thank you very much, Mr. Goldsmith. 

 Ms. Seminario, would you begin? 
14

 STATEMENT OF MARGARET SEMINARIO, DIRECTOR, DEPARTMENT OF 

OCCUPATIONAL SAFETY AND HEALTH, AFL-CIO, WASHINGTON, D.C. 

Yes, thank you very much, Mr. Chairman and Members of the Committee, for the 

opportunity to testify today on OSHA's standard-setting process. 

 The AFL-CIO has been involved with OSHA standard-setting for many, many 

years. I personally have been involved in this activity for the 24 years that I've been at 

the AFL-CIO, and am also serving as a member of NACOSH. I was involved in the 

review by the advisory committee to the Secretary of Labor on the standard-setting 

process that occurred last year. So I'd like to offer my observations, comments, and some 

recommendations. 

 First, it's important to recognize that, indeed, when OSHA standards have been 

set, they have been very effective at reducing hazardous exposures and work-related 

injuries, illnesses, and fatalities. Looking at OSHA's cotton dust standard, when it was 

adopted, 12 percent of textile workers suffered byssinosis. Today it's less than one 

percent of workers. Similarly, before the confined space entry standard was issued, there 

were a couple of hundred workers being killed every year in confined space incidents. 

Today, thankfully, that number is much lower. 

 In my testimony in the back we've developed a list of the standards that have been 

issued by OSHA. Even though many of these have been controversial, I think in 

retrospect what we see is that the things that OSHA has regulated generally have been 

major hazards. When you look at their impact, they have indeed been effective and have 

also been feasible to comply with. 

 We go through every rulemaking with claims that there's no science that the costs 

will be too high, that it isn't feasible to comply with these standards. While there haven't 

been reviews of every standard OSHA has issued, there have been reviews of some. 

 In 1995 OTA did an in-depth assessment of eight OSHA standards and found that, 

indeed the agency's assessments on feasibility and cost generally were correct. If 

anything, the agency had overestimated the cost. So the reality of the cost of the rules has 

ended up usually to be less, and that's often because employers and industries figure out 

ways to comply with these that weren't really contemplated at the time the standard was 

under consideration. 

 As many have said, OSHA standards have been controversial and most have been 

challenged in court, but in the majority of cases the reviewing courts have not only 

upheld the standards, but in many cases they have ordered the agency to go further and 

add protections to standards so that workers are provided a higher level of protection.

As far as the process is concerned, it is one that is open, it is accessible, and it 

provides many opportunities, as we see from the charts here, and from others' testimony, 

for the public to participate. I would argue that the process for setting standards at OSHA 

probably is about the most open process that exists in the Federal Government today for 
15

getting input from all interested parties on actions of the Federal Government. I'm not 

going to review all those steps. They've been reviewed in others' testimony. But it is 

indeed a very, very open process, with a lot of opportunity for input and comment, and 

that process has existed since the Act was passed. 

 But since the Act was passed there have been numerous other requirements that 

added which have increased the length of the process. When you look back at the process 

in the early years, it took OSHA about two years to set major rules on vinyl chloride, 

asbestos, and 14 carcinogens. Every decade the process has gotten longer, and there are a 

number of reasons for that. The other thing that's happened, as Mr. White said, is that the 

preambles have gotten a lot longer as well additional requirements to comply with. 

 I think one could argue that the faster, less complicated process that existed in the 

early 1970s produced standards that are probably similar to the ones that are produced by 

the very long process today. If one did a cost benefit analysis on the time versus getting a 

better standard and all the steps, the earlier, less cumbersome process was one that 

resulted in more protective standards in a more timely way. 

As many have said, there has been increased political and industry opposition to 

safety and health standards, and, in our view, this has greatly impeded and delayed 

worker protections. Since the beginning OSHA standards have been controversial and 

they have been challenged, but that controversy and that level of challenge has increased.

I think there's a different political environment today. It is one that actually is much more 

opposed to government action and regulation. The actions that may be proposed by 

OSHA may be quite similar to what were being proposed in the 1970s and 1980s, but the 

political climate is different today. And that's a fact of life, that's a fact of reality. We see 

virtually everything the agency tries to do being challenged, whether it's putting out a 

hazard alert, whether it's trying to gather information. When they circulate draft rules, 

those draft rules are attacked. 

 So that's the reality that we're dealing with. I think that Congress has to recognize 

that becoming involved in every stage of activity is one of the main reasons why the 

standard-setting process, indeed, has slowed down. 

WRITTEN STATEMENT OF MARGARET SEMINARIO, DIRECTOR, 

DEPARTMENT OF OCCUPATIONAL SAFETY AND HEALTH, AFL-CIO, 

WASHINGTON, D.C. – SEE APPENDIX G 

Chairman Norwood. Thank you very much. We’re going to recess for 20 minutes and 

go vote. We'll be back just as fast as we can. 

 The Committee is recessed. 

[Recess]
16

Chairman Norwood. I thank the witnesses. I apologize that we were gone for a while, 

but I'll begin with the questions. 

Mr. Rezendes, you made a statement in your remarks that half of the standards 

issued at OSHA were outside of the rulemaking process. Does that mean without public 

comment? 

Mr. Rezendes. Actually my statement was we looked at 1997, and of the 4,000 

rulemaking that were done in 1997, half did not have notice of proposed rulemaking. I 

did look back in preparation for this hearing at OSHA's rulemaking since 1996, and as 

best as I can figure, there were 28 rulemakings of which eight did not have notices of 

proposed rulemaking. 

 Most of those eight though probably need to put in context. They were not major 

rules. They tend to be technical clarifications, basically conforming language, although 

one was a direct final rule that involved cotton dust related to a washing technique, and 

they were allowing that. Another one was the needlestick rule that was mentioned 

already, that Congress basically directed them to issue without going through the 

regulatory process. 

Chairman Norwood. Does this include standards that have been incorporated by 

reference? 

Mr. Rezendes. I didn't look at each of the individual rules. I'm only looking at the 

rulemaking process. So I'm not sure if I understand the question. 

Chairman Norwood. There are standards that are placed into the rules and regulations. 

Mr. Rezendes. Yes, right. 

Chairman Norwood. These are simply referred to or incorporated by reference to 

someone else, and I'm trying to find out if in this process you're including them, too. 

Mr. Rezendes. No, we didn't look at each of the rulemaking that OSHA did in detail, we 

just looked at the overall process. 

Chairman Norwood. Would you do that for me? 

Mr. Rezendes. I'll be happy to do it and talk to you about it. 

Chairman Norwood. Do you feel in your observation that OSHA is indeed failing to 

comply with the law, as the Act was originated? 

Mr. Rezendes. The OSH Act? 

Chairman Norwood. Yes. 
17

Mr. Rezendes. Fortunately, most of my testimony is really focused on the regulatory 

rulemaking process, the crosscutting pieces. We've never really frontally addressed the 

OSH Act and how OSHA is implementing it. 

 We do have a report we've done for the Energy and Commerce Committee that's 

coming out next month, comparing the risk process in terms of the policies and 

procedures and the methodology that OSHA and EPA and FDA have used in terms of 

making those decisions. 

Chairman Norwood. Well, we'll take great interest in reading that. 

Mr. Rezendes. Great. 

Chairman Norwood. Mr. Goldsmith, you made a statement that the rulemaking process 

is very political today. I would like for you to expound on that. I'd like to hear about your 

observations.

Mr. Goldsmith. Well, Mr. Chairman, I think that what has happened, because so many 

of the recent rules have been far-reaching and therefore very controversial, is that interest 

groups on all sides have lined up and have made what is always going to be a political 

process much more intensely political than it ever was. 

 I'm very mindful of your comment at the opening of the hearing, that this isn't a 

hearing on ergonomics, but it's difficult to put that completely out of one's mind as an 

example of the politicization of the standard-setting process. 

Chairman Norwood. You cited some solutions, and I found them very interesting. One 

was that an agency outside of the DOL would set the standards, leaving the enforcement 

to OSHA, I gather. 

Mr. Goldsmith. That's correct. 

Chairman Norwood. You also spoke of scientific evidence being reviewed outside of 

OSHA while leaving the enforcement to OSHA. Do you envision the same agency setting 

the standards outside of DOL also dealing with the scientific evidence? 

Mr. Goldsmith. Yes. I think that you would have the entire standard-setting process 

outside of the Department of Labor. This was not a novel idea. It's one that was part of 

the original debate over the statute in 1970. That outside agency would act with as much 

independence as could possibly be arranged for.

 That’s not to say that I'm naive enough to believe that there would be no political 

back-and-forth. But once you take the standard-setting agency out of the enforcement 

branch, I think that alone will do much to make the standard-setting process much more 

even-handed. 

 Then if, on top of that, you guide that independent agency with standards much 

like the standards that federal judges apply every single day in making rulings on expert 
18

witnesses and on the reliability and relevance of expert testimony, you've taken it yet 

another step away from overly political action and focused on really getting to the truth 

of the scientific issues that have been raised. 

Chairman Norwood. That's an interesting concept, and of course the purpose of the first 

of these hearings. It's a learning process, and we all ought to think about what you're 

proposing.

 I see the red light is on, Mr. Owens. I'd like to yield five minutes to you for 

questioning.

Mr. Owens. Thank you. 

 Mr. Rezendes? 

Mr. Rezendes. Yes, sir. 

Mr. Owens. Just for clarity, when you talk about thousands of rulemaking situations, for 

the sake of the audience and the record, you're not talking about standards? 

Mr. Rezendes. No, we're talking about the rule. 

Mr. Owens. Technical adjustments, what we call when we're making legislation 

technical amendments? 

Mr. Rezendes. Well, actually, in 1997, what we looked at was all the rulemaking that 

went on in 1997, and there were over 4,658, if I recall the number correctly. 

Mr. Owens. 4,658? 

Mr. Rezendes. Rules. 

Mr. Owens. Technical adjustments? 

Mr. Rezendes. No, rules; rules and rulemaking. Some of them were technical 

adjustments; some of them were major rules. 

Mr. Owens. Can you make a distinction? A standard, when you finalize a standard, 

that's different from what you're talking about, right? 

Mr. Rezendes. Yes, correct. We did not look at the standard-setting process within 

OSHA or anyplace. We looked at the rulemaking process. 

Mr. Owens. Did you look at the total rulemaking process? 

Mr. Rezendes. Absolutely, correct. 
19

Mr. Owens. Which includes standards, in the final analysis, right? 

Mr. Rezendes. It could, yes. 

Mr. Owens. I just want to make that clear. 

Mr. Rezendes. Yes, thank you. 

Mr. Owens. We were talking about some 40 standards in the history of the agency? 

Mr. Rezendes. Thousands. 

Mr. Owens. Thank you. 

Mr. White, you set out a very logical procedure there, but you just chose to leave 

out the interference of the political process. You don't think that has any bearing on the 

process? 

Mr. White. Well, I think that can occur at any of the stages that I laid out. So I didn't lay 

it out separately. In fact, political interference does occur. 

Mr. Owens. Would you comment on my statement about the number of Administrations 

and the number of Labor Secretaries that could go by? 

Mr. White. Well, I think that's exactly part of the problem. As you've said, and I said in 

my written testimony, the average shelf life of an Assistant Secretary is about two and a 

half years. So you have new people, new administrations, new political philosophies 

coming in during the course of a variety of rulemakings, and one person's priority is 

another person's very low priority. 

 It's so easy for a new Administration not to want to work on confined spaces, but 

on permissible exposure limits, so confined spaces go on the back burner. There's 

nothing to prevent the Agency, or hold the new Administrator accountable for saying, 

“Why are you moving what was a high priority to a low priority and putting something 

else on that burner?” 

Mr. Owens. Would you say that it's not stretching matters to say that when you develop 

standards you're dealing with a fundamental clash between management and labor, 

management and workers? It's the safety of the workers usually that's of concern to 

OSHA. It's management that challenges more and more in an attempt to make the 

workplace safe. 

Mr. White. Well, I think that the rulemaking process has always been adversarial, and 

every one of OSHA's health standards save one, and most of OSHA's safety standards 

have been challenged by some segment of industry because there's some dissatisfaction 

with the result. 
20

So it's always going to be an adversarial process. 

Mr. Owens. Mr. Goldsmith, would you say that there's a correlation between the 

complexity of the rule or standard and the amount of controversy? I mean, when you 

were setting standards for the building trades, it's obvious what makes a situation an 

unsafe workplace; far more obvious than many more instances. But when you're talking 

about ergonomics or certain chemicals, it becomes more complex, and the controversy 

has increased in relation to the complexity. Am I correct? 

Mr. Goldsmith. Yes, I think that's right. I think to the extent that a proposed standard or 

standards are increasingly complicated and far-reaching, as was the case with ergonomics 

that is certainly going to create some controversy. 

Mr. Owens. But management has disputed the evidence, in other words? 

Mr. Goldsmith. Well, if I may, with all due respect, I don't think it lines up as 

management always opposing having a safe workplace. I think that is not the case at 

least in my experience of almost 30 years of representing employers in this area. Indeed, I 

think much of what transpired in the ergonomics and other rulemakings makes that clear. 

 What you have are legitimate disputes about whether or not a standard addresses a 

problem and how it should address a problem and what the enforcement implications are 

and so on. I don't think that this is a matter of management wanting to have unsafe 

workplaces. 

Mr. Owens. Ms. Seminario, Mr. White has suggested that OSHA should adopt the same 

process that NIOSH uses to develop the National Occupational Research Agenda. How 

does that process work, and how would that help to bring consensus to this regulatory 

agenda?

Ms. Seminario. The process was one of bringing together the interested parties, the 

health and safety community, to set an agenda of priorities particularly for research 

activity. It's the National Occupational Research Agenda, and it was one that identified 

key areas of concern and developed working groups to continue the input on the research 

in those areas. 

 I would agree with Mr. White that having a process for setting priorities that 

involves interested parties in the broad community is a good thing. OSHA did that in 

1994 in its priority planning process, which I think was generally a good process. 

Mr. Owens. That process would be more acceptable to management and to industry? 

Ms. Seminario. Well, I think, again, having some clear priorities are important and 

getting input on them is important. 

 What you want to do with whatever process you're setting up is have it be one that 

leads to something, and not just endless discussion. I think in setting up any new steps or 

new ways of doing rulemaking that we have to be very thoughtful and careful about the 
21

result being better, timelier protection for workers because that's the point of this. It isn't 

about the process, it's about the protections, and I think we have to keep that in mind. 

Right now we have a process that isn't working to protect workers. 

 I don't agree Mr. Goldsmith's recommendations that that would make the process 

of putting protections in place better. We have a different view on that. But having some 

processes to set some priorities that are ongoing, I don't think is a bad idea. 

Mr. Owens. Thank you for the additional time, Mr. Chairman. 

Chairman Norwood. Thank you, Mr. Owens. 

 I'd like to recognize Mr. Keller for five minutes. 

Mr. Keller. Thank you, Mr. Chairman. 

 Mr. Goldsmith, I have a couple questions for you along the lines of the Daubert 

standard, and the use of peer review. I have tried a few cases in my day in Florida. We 

call it “Dolber.” We're not these fancy big city lawyers. I understand now that it's 

Daubert. We've been messing this up. 

 I was very intrigued by your testimony, regarding scientific review by OSHA 

using the Daubert standards, and specifically making sure whatever standard is adopted is 

generally accepted in the scientific community. In my own private practice experience I 

have seen that make a lot of sense. 

Down in Florida, for example, there's a form of junk science called multiple 

chemical sensitivity. Someone will go and spray a house for bugs, or they may paint that 

same house, and the next thing you know, you're facing a $20 million lawsuit. “I have to 

live in a spacesuit now because I have multiple chemical sensitivity, and I'm allergic to 

everything, and here's the $700 an hour expert that I've flown in from Los Angeles to 

testify that.” As a matter of practice, we routinely have these hearings, and their 

testimony is thrown out of court; not allowed to testify. 

 I'm concerned that in the workplace setting we don't have these same safeguards, 

because workers' compensation judges are allowing these judgments. I want your ideas 

about how OSHA can implement some sort of Daubert type procedure to make sure that 

proposed regulations are based on sound science. 

Mr. Goldsmith. I used to call it “Dolber” until a judge corrected me, so I could go either 

way, Daubert or “Dolber.” 

 The easiest and most direct way to do it is to simply tell OSHA that the standards 

that the United States Supreme Court, and any number of federal judges apply on a daily 

basis have to apply to this process. It's easy enough to take the decisions and summarize 

them in very objective terms, just as you would in trying a case or contesting the 

relevance and reliability of an expert's testimony. These are the rules, and they either 

follow them or they don't. If they don't, presumably that would be a basis for challenging 
22

a standard. But at least they would have an understanding from Congress that this is the 

way you analyze scientific evidence. 

Mr. Keller. The second question along the same lines relates to peer review. It's my 

understanding that the only time OSHA has utilized peer review was during the 

tuberculosis standard, and that unlike EPA or FDA, OSHA refuses at this point to utilize 

the independent scientific peer review. 

 Do you think that peer review is something that OSHA should consider in the 

future? 

Mr. Goldsmith. Absolutely. Peer review is certainly a staple of the medical research 

that is done at universities and in hospital centers all over the country. I just don't 

understand why there would be any reluctance to have some formalized peer review 

system in place to make sure that the evidence that's being put forward, among other 

things, meets the relevance or reliability tests and is otherwise probative and reliable. It 

doesn't make any sense to avoid some sort of peer review process. 

Mr. Keller. What we're talking about is really getting back to the same issue: Sending 

this research to folks at Harvard or Duke or Vanderbilt or California Tech and asking, 

“You're an expert. In your belief is this generally accepted in the scientific community?” 

Mr. Goldsmith. That would certainly be one way of doing it. I think there are any 

number of ways that could be devised to have effective peer review. But just to ignore it 

makes no sense at all, in my judgment. 

Mr. Keller. Thank you. Ms. Seminario, is there a need for OSHA to use independent 

scientific peer review? 

Ms. Seminario. Yes, in certain cases, and they certainly do. Routinely OSHA does have 

their risk assessments reviewed by outsiders and receives comments on that. They do that 

fairly routinely with their economic analyses as well. As far as adding a whole formal 

procedure and setup, such as exists at EPA, I wouldn't support that. I think it would just 

add a lot more time to the process. 

As I said before, OSHA standard setting is among the most open process that 

exists right now. The Agency's scientific findings and evidence are all put forward. 

Everyone has a chance to come forward, and not only to comment, but to cross-examine 

witnesses as well. So, for example, we at the AFL-CIO have a chance to ask the Agency 

and the people who actually prepare these documents questions that we get on the record. 

It's a very, very open process, and I would say that it allows for peer review that is much 

broader than the kind of open peer review that exists in any other Agency. It's a different 

form, but I think it does already exist. 

Mr. Keller. Mr. Chairman, am I out of time? 

Chairman Norwood. You're out of time. 
23

Mr. Keller. Okay. I yield back then. Thank you. 

Chairman Norwood. I'd like to recognize Mr. Ballenger, former Chairman of the 

Subcommittee, for five minutes. 

Mr. Ballenger. Thank you, sir. 

 Mr. White, the last Congress proposed legislation that would change the way 

OSHA proposes such safety and health standards. The bill that I introduced would simply 

require OSHA to include risk assessments and cost benefit analysis that are industry 

specific in any proposed regulation. To my way of thinking, almost every business that 

operates today does this. What do you believe would be the benefit of the legislation? 

Could you express an opinion on that? 

Mr. White. Mr. Ballenger, maybe my memory is shorter as I get older. I don't remember 

the particulars of your bill, but certainly the issues of risk assessment and economic 

analysis are critical to OSHA's rules today. 

 I think one of the big failures of OSHA's process, though, is that you can't find 

anywhere in the Agency a set of guidelines that tells you how OSHA goes about the 

process. You can figure it out if you sort through various standards and preambles and 

court cases, but I think it would be extremely valuable for OSHA to have a valid, clearcut, open set of criteria for peer review and economic analysis. I think part of the issue is 

that it's sort of a mystery to the rest of the public as to how this happens.

Mr. Ballenger. Right. 

Mr. White. Whether you need to do that by legislation or whether you could accomplish 

the same thing administratively I think is open to some question. But certainly the 

concept of clear-cut criteria for peer review, and certainly for economic analysis that 

must be done industry by industry is an essential part of the process. 

Mr. Ballenger. Right, and I think ergonomics proved how wild and wooly it can get 

depending on the side you happen to be on in that issue. I don't know how many billions 

of variations there was, but there were billions and billions and billions. 

 Let me ask you another question. It seems that every time OSHA develops a 

standard, its fate is decided in the courts. Do you believe that this is the most effective 

rulemaking procedure? What do you think we could do about this final step to keep it 

from going into the courts? Is there a way? 

Mr. White. Well, I'd like to think that there is. I think OSHA can do a better job of 

collaboration and consensus building from the first stage of the process as I indicated. 

That is in the prioritization phase, through the implementation phase. 

 Part of the problem with the process is that the stakeholders, the interested parties 

are not really involved. I think that despite the various legal requirements there needs to 

be a better way to make sure that stakeholders are involved throughout the process so that
24

they can provide input. There is some way to build more consensuses about the product 

so that there isn't so much litigation. 

 Now, all that having been said, it would be great if every rule could be done by 

negotiation. I don't think the process lends itself to that, particularly in these mega rules 

where there are many interested parties and many issues. But OSHA needs to find those 

areas where there could be some agreement, enter into negotiation, and have a negotiated 

rule, which then would not lead to litigation. 

 In general, litigation is sort of part of the history of OSHA rulemaking, 

unfortunately, and OSHA will just have to do a better job, I think, of collaborating 

everywhere from the front end to the back end in order to try to minimize that. 

Mr. Ballenger. We might, if we figured out an answer to that question, put a lot of 

lawyers out of business, and that wouldn't be nice at all. 

Mr. White. That's right, and I certainly wouldn't want to do that to my colleagues on the 

panel here. 

Mr. Ballenger. Mr. Rezendes? 

Mr. Rezendes. Yes, sir. 

Mr. Ballenger. In 1996 we passed a law that requires OSHA to convene small 

businessmen to consider the impact of rules on small businesses during the rulemaking 

process. I'm a small businessman myself. 

Has this affected the process? 

Mr. Rezendes. Actually, when we looked at it, most of our critique was that the 

ambiguity in terms of defining what is a significant economic impact on a substantial 

number of small entities was so vague that each of the agencies were using their own 

interpretation. Some, like EPA, were using a rather high threshold. 

 Our critique has been not so much in terms of how it slowed down the regulatory 

process, but that the objective that Congress had in terms of clearly analyzing the impact 

of a regulation on small business has not been achieved because the definitions have not 

been clearly defined. We've recommended numerous times that either Congress amend 

the Act or that somebody, like the Small Business Advocate at SBA be given the 

authority to define and help the Agencies clarify when those assessments need to be 

done.

Mr. Ballenger. Thank you. 

Ms. Seminario, I've known your name off and on for years and years and years, 

and I don't think we've ever testified either for or against each other, have we? Well, let 

me just say I welcome you here. I love your charts. I was involved with regulatory 

legislation of chemicals that you mentioned in the early part of OSHA's existence. All the 
25

easy stuff seems to be done, and now nothing is left but hard stuff. We're keeping a lot of 

rich lawyers involved, and as you have heard me say many, many, many times, or maybe 

you haven't heard, I'm not their best friend. I'd love to see this legal practice shrink 

somehow if that could happen. 

 However, it seems that you don't think the easiest part has been done. I mean 

ethylene chloride was one of the later ones. But those of us that happened to live in close 

proximity to the foam-manufacturers and were complaining about the smell in our 

neighborhoods, we're very happy to see that regulation come along 

Ms. Seminario. Well, I think you raise a very good point. I don't think all the easy ones 

have been done. The issues that are confronting the employers' unions and OSHA are 

more complex. There's no doubt about it. Ergonomics is a complex issue, but it's also a 

serious one. So how do you define a government response? 

 Again, as Mr. Goldsmith said, the regulation was far-reaching, but the problem is 

very broad, and so these are the realities that we have to deal with. I would suggest that 

there are some areas, which maybe aren't so hard that we could deal with. In my 

summary I didn't get to talk about the need to update certain standards. 

 The permissible exposure limits that exist for many chemicals were adopted back 

in 1971 at the direction of Congress, and so for most toxic chemicals that workers are 

exposed to, the standards are very out of date. They were based upon 1968 limits and 

really dated from the '40's and '50's. So for most chemical exposures in the workplace 

today, the scientific evidence that they are based on is 50 years old, and there's agreement 

on a lot of those chemicals and a lot of those limits. 

I think we should try a process that would allow us to raise the baseline on things 

that people agree about, but look at some new processes to keep those limits up to date. 

That allows you to narrow the definition of what you're trying to do, so maybe it's 

manageable. I think maybe one of the things that we need to do is look at how we can 

break this up into parts that are more manageable and are still significant actions. It's 

something that a number of us in the safety and health community have had discussions 

about.

What are the ways we could move forward to try to update these limits? Mr. 

White's been involved in those discussions over the years, and it's something that we'd 

like to try to explore with the new Assistant Secretary, folks in the business community, 

and yourselves as well. 

Mr. Ballenger. I see my time has expired. 

Chairman Norwood. That's all right. I still have some unanswered questions, and I'm 

sure Major Owens does, too. 

 One of the things I want to correct for the record is the comment my friend from 

New York made about the clash between management and labor over OSHA standards. 

What I think we're talking about is the management of big business, clashing with the 
26

management of the AFL-CIO. I would like to set the record straight in saying that 

probably for 80 percent of the workforce who works in small business and in mom and 

pop businesses, management and labor often is the same thing. There are people in this 

room who make their living as managers, working side by side with their employees. So 

some of these standards aren't necessarily a clash between management and labor. It just 

seems to be so at the higher levels. 

 I also think that it's important to point out that this clash between the AFL-CIO 

and big business management generally represents about 10 percent of the workforce. I 

think we get into more trouble at OSHA because over and over again “one size fits all.” 

When you do that, it may work really well for big, big business but it is devastating to 

small business. I would submit to you that “one size fits all” slows down the process. 

 Now, Mr. Chajet, I have some questions I've got to ask because at our upcoming 

hearings, we certainly want to hear from the American Council of Governmental 

Industrial Hygienists. I need to ask you some questions so I can question them better at a 

later hearing. 

 My understanding is that the ACGIH is a private organization that receives 

government money, and they go about the business of setting standards for this country. 

On frequent occasions OSHA will look at their standards and incorporate them by 

reference into OSHA rules, which, in effect, changes the law. 

 Have I got that right so far? 

Mr. Chajet. I think you do, Mr. Chairman, in the sense that this organization is portrayed 

as a private organization. However, there are often different layers of an onion as you 

peel it. 

 When you look at the organization, what you find is that Public Health Service 

employees with Social Security funding created it. It is staffed now and has been staffed 

for many years, by active federal employees who took it on as a “volunteer effort” and 

ran it out of their government offices in NIOSH in Cincinnati. 

Chairman Norwood. Are there other private groups in the country that set standards? 

Mr. Chajet. There is, Mr. Chairman, but they're not of the same character or nature. 

There are many consensus standards groups that are open, that seek industry, labor, 

academic, and expert input and arrive at consensus standards. 

Chairman Norwood. Does OSHA incorporate by reference from these other groups, or 

is it particularly the ACGIH? 

Mr. Chajet. They do incorporate by reference standards from consensus-setting groups, 

but not in an overwhelming nature. For example, OSHA has a communication rule that 

simply says that if the ACGIH or a couple of other organizations tag a substance as 

hazardous, it is therefore automatically tagged as hazardous for purposes of the federal 
27

program. 

 This labeling process, as you can imagine, tags a product as hazardous and places 

a level on it that states that anything above this level is unsafe. That number and that tag 

is produced by a private organization and it's incorporated by reference 

Chairman Norwood. Does the public get to comment on that? 

Mr. Chajet. No, Mr. Chairman, they do not. 

Chairman Norwood. Is that what the OSH Act is? Something's wrong here. 

Mr. Chajet. There's something very wrong with this process. The standards that they 

adopt are put up as a notice of intended change and are published in their publication, and 

circulated within the hygiene community. But there's no notice and comment, as the law 

requires. The government is using this group as an advisory committee. This Congress 

passed a Federal Advisory Committee Act to control that very kind of problem, and this 

process somehow escaped the overview of how the Federal Advisory Committee Act has 

been implemented. 

 We have a law that says if you're going to use or rely on an advisory committee, 

Congress has to charter that advisory committee. You have to have open meetings, you 

have to have notices in the Federal Register, and you have to take minutes. But that has 

not been applied to the use of and reliance on ACGIH. It is a very significant denial of 

our due process, and all of the things you've heard here today about open and transparent 

rulemaking that we want, doesn't happen. 

Chairman Norwood. Is Mr. Chajet right about this? Is it an open process or not? Does 

the public get to comment or not? 

Yes, ma'am? 

Ms. Seminario. I don't really think the focus should be on ACGIH. It is a private 

organization, and we can have discussions about their standards and their processes. But 

we're really focusing on OSHA and their rulemaking, and their rulemaking is very open. 

Chairman Norwood. No, my question wasn't about OSHA. My question is, does this 

private agency set standards that are incorporated by reference where there is no public 

comment? That's my question. 

Ms. Seminario. I was getting to that point. Regarding the hazard communication 

standard, which incorporates the ACGIH standards, there's a presumption that if they are 

indeed on the ACGIH list, those substances or materials are captured, and an ACGIH 

data sheet has to be provided. 

 That rule was subject to very open rulemaking for many, many years. So the 

incorporation of the ACGIH as one element of that standard was one piece of information 

when the hearings were going on. I was not aware of anyone during that process nearly
28

20 years ago that objected to that, and indeed it was regular practice by manufacturers to 

include that information on their data sheets. 

Chairman Norwood. My understanding, is that 20 years ago they did it a lot better than 

today. What I would suggest to you is that you come to the next hearing and we'll bring 

some people in who have been affected by “incorporated by reference” and had not one 

word of input. 

 My time has expired but Major Owens you're certainly recognized. 

Mr. Owens. Ms. Seminario, would you like to finish your statement? 

Ms. Seminario. I would. I didn't come to testify on the ACGIH process. I came to testify 

on the OSHA standard-setting process. To get a fuller picture, it would make sense to 

have ACGIH and OSHA here and not just hear from one party. Perhaps then you would 

get a fuller picture of that. 

Chairman Norwood. Keep the faith. I promise you I'm going to have them in. 

Mr. Owens. I claim my time, Mr. Chairman. 

 I ask unanimous consent to have submitted for the record a letter from ACGIH as 

well as other documents. 

Chairman Norwood. I agree, if you'll yield. We'll put it in the record. 

Mr. Owens. I think it's important to note that one of those documents is from the 

ACGIH, which says quite clearly that ACGIH received no government funding. 

 In a statement you made a few minutes ago you seemed to have some doubts 

about them receiving no government funding. Government employees participate in 

some ACGIH activities, just as I'm sure some government-employed lawyers participate 

in the American Bar Association and American Medical Association and various other 

organizations that do have an impact on government decision-making. 

 I don't know whether this Administration is going to do it or not, but most 

previous Administrations have used the Bar Association in making recommendations for 

federal judges, but it doesn't make them advisory committees for the Federal 

Government, and it does not rule out them having some lawyers who might work for the 

government. 

 I'd like to also point out that the ACGIH has 42,000 members who are scientists, 

toxicologists, epidemiologists, physicians, and industrial hygienists who are concerned 

with issues involving workplace health and safety. Our members are employed by 

academic institutions, major corporations, labor organizations, and federal, state and local 

agencies, and I'm not sure we should deny a federal employee the right to belong to such 

an association because there's some possibility that the government would use their 
29

expertise or their advice in making decisions somewhere in the future. 

 I would just like to say that it's clear that OSHA is in the business of making rules 

and of doing other things to protect the health and safety of workers. I didn't mean to 

sound as if I am anti-management or anti-employer or anti-corporations, but that happens 

to be the business that it's in: workers. 

 There may be some situations in the future where both will obviously benefit; 

management as well as workers. There's some controversy about the radioactivity of cell 

phones, for example, and some millionaires have died and some of their relatives have 

sued cell phone companies. There are some pending suits out there that nobody talks 

about. That may be an area where safety of the executives is even more of an issue than 

the safety of the workers. So there may be such situations. 

 But in general OSHA does not deal with protecting the health and safety of 

management and employees. It's workers. And when these challenges are made, we are 

challenging a governmental effort to make the workplace safe for workers, and we can't 

get away from that. There's a moral issue here. 

Ms. Seminario, and maybe some others would comment, too, what are your views 

regarding the establishment of a completely independent agency to develop standards? 

You know, take it out of the Department of Labor and have it become completely 

independent, without the political overtones of having appointments made as 

Administrations change and some other kinds of things that happen as a result of it being 

a part of the Department of Labor. 

Ms. Seminario. I don't think that would make it any better. I mean, look at what we just 

went through on ergonomics. We had two NAS studies with the best experts in the world. 

We had nothing to do with who was selected on that panel. It was the NAS, the Institute 

of Medicine. But even with those determinations that were made, they weren't accepted. 

 So I don't think that. 

Mr. Owens. You're not sure Congress should get more involved? I implied in my 

opening statement, that in some cases Congress might get more involved as we did in the 

needlestick legislation, but you're not so sure that that's a good idea. 

Ms. Seminario. No, and I don't think setting up an independent group really deals with 

the issues. Look at what OSHA has produced over the years in the way of its standards.

They've been pretty good standards. I mean, after they're issued, for the most part, 

they've been accepted; they've been put in practice. There isn't a track record that these 

rules were so off the wall, so off base, causing all these various catastrophes with respect 

to job loss and feasibility. That hasn't been the case. 

 So I don't think setting up an independent board that has no relationship to the 

workplace or to enforcement, makes a lot of sense at all, because feasibility issues 

actually are very, very key in OSHA standard setting. They're as key as the risk side of 

the equation. Having those standards developed by an agency that's familiar with the 
30

workplace actually is very, very helpful. Putting in a separate organization that has no 

relationship to the workplace I think would be a very bad thing. 

Mr. Owens. Mr. White? 

Mr. White. I think it's an issue worth considering, but I guess after working in this area 

for 25 years, I've also become sort of a political pragmatist, and I doubt that people are 

going to be able to come together on this issue and agree that we need to fundamentally 

restructure the Occupational Safety and Health Act. 

 What I think, as Ms. Seminario states, is the results are uncertain. We don't know 

that, and I don't think we can predict very well that an independent agency would be any 

better, more effective, or less controversial than what we've got now. I think, though, 

that maybe it's something worth considering. I don't think it is a silver bullet, and I think 

we ought to be very cautious about fundamentally amending the Act. 

 Let me volunteer something about the ACGIH. I would just caution about 

throwing the baby out with the bath water. While there are certainly issues surrounding 

the way ACGIH sets its own limits, I think business has some concerns about that, as 

labor did 10 or 15 years ago. I think ACGIH has served a valuable function, both for 

business and for labor. Where, as Ms. Seminario pointed out, OSHA has not been 

successful in updating its limits over the past 30 years, ACGIH limits have served a 

valuable role. 

 So I think if we're going to focus our attention on ACGIH, it ought to be a 

specific issue as Mr. Chajet's raised, and not about the value of ACGIH and their limits, 

which I think has been there over the years. 

Mr. Owens. I want to thank you for that valuable information. 

Mr. Goldsmith? 

Mr. Goldsmith. Mr. Owens, if I might, just on the issue of an independent agency. It 

seems to me that one of the problems that OSHA, has had over the years is an increasing 

lack of trust on all sides. Labor lacks trust in what the agency does, management lacks 

trust in what the agency does, and so on. 

 A way I think to give the Agency more credibility within the regulated 

community is to establish independent agencies, like an independent standard-setting 

agency. The entire judiciary is predicated on the notion of being independent. The 

judiciary takes all kinds of cases. They become familiar with the workplace. They 

become familiar with all kinds of things. 

 There's no reason why an independent agency couldn't address all of the issues 

that need to be addressed in the context of making standards, and I think if you take it 

away from the enforcement arm of the Department of Labor, you will almost 

immediately increase the credibility of the standard-setting process. I think that would 

result in fewer lawsuits challenging standards, and I think that the basic notion that
31

independence is generally a good thing is hard to argue with. Yes, there are questions 

about how you would appoint people and so on, but those are in effect details that can be 

dealt with. 

Mr. Owens. So you would recommend an independent agency, isolated from 

Congressional interference. Congress would not be allowed to threaten budget cuts or do 

other things that might intimidate the agency. 

Mr. Goldsmith. I don't know exactly how Congress would work with such an agency, 

but I think a certain amount of independence is a good thing. 

 How it would come about politically and what the role of this Committee or the 

Congress would be in moderating the agency's activities are obviously something that 

should be looked at. 

Mr. Owens. Thank you. 

Mr. Chajet. Mr. Chairman, if I might? 

Mr. Owens. I have no further questions. You wanted to comment, sir? 

Mr. Chajet. I would on two points, if the Chair and Mr. Owens would permit. 

 First of all, I would hate to live in a country where Congress couldn't look at 

agencies making decisions that affect my life. I very much appreciate the role of the 

Congress in examining and overseeing regulatory agencies that affect my family's small 

business activities in Florida, and I hope that will continue. 

 On the ACGIH issue I also wanted to add that it is very important to realize this is 

an Agency that's done a lot of good over the year. They've kind of lost their way. 

They've had very good intentions and they're good people that are trying to do the right 

thing. I agree with Mr. White, we don't want to throw the baby out with the bath water, 

but we want to make sure that there are no conflicts of interest. Open, transparent, fair 

processes are inherent in our system of government. 

 So an ACGIH federal employee who is writing a standard for diesel exhaust 

shouldn't be writing an ACGIH standard for diesel exhaust. There is a crossover of 

materials and philosophy that's a subject matter conflict. Similarly, there are potential 

financial conflicts as well. ACGIH money should not be paid to a committee member 

who is writing a standard at his university, and then that standard is used in the OSHA or 

MSHA rules. 

Mr. Owens. Thank you, sir. I understand you have a case where you're making all these 

arguments, and I choose not to have them made here in response to my question. Thank 

you.
32

Chairman Norwood. Let me summarize and close this hearing, which is for 

informational purposes. I hope everybody understands that. There will be others. 

 I am going to work very hard to make sure that this Committee understands the 

rulemaking process, and we do understand, I think, all of us on both sides, that it is not 

functioning correctly. One of the things that I want to be sure of is that in 100 years we 

are never accused of dereliction of duty by not overseeing the appropriations process for 

a federal agency. We certainly want Congress to do its constitutional duty, and that is 

one of our constitutional duties. 

 I am inclined to correct the record about some of the things that were said, 

particularly about NAS and their relationship with OSHA. I'm reminded that the ERGO 

Rule was finalized before the NAS study was actually published, so it makes you wonder 

how that fit in together. 

 Lastly, I am concerned, frankly, about this process being closed down to the very 

people that it bothers, and I intend to find answers to that, and I'm going to ask a lot of 

other people about it. 

 But I think regulation without representation is the worst possible thing we can 

allow to happen, and I for one am going to be absolutely certain that agencies such as 

OSHA that are using regulation without following the actual open process laws Congress 

gave them stop. There is no reason, for example, we shouldn't use public entities that are 

producing standards. But we have to be very, very concerned if there is any 

interconnection at work between federal employees and private agencies to avoid due 

process of law. 

 So with that, let me thank each one of you for your time. I have a lot of additional 

questions, and I hope all of you will consider responding to my questions in writing. I’d 

like to put your answers into the record because we are out of time. 

 I invite you to come back to our next hearings on this subject, because we're 

going to stay on this subject until we get the air cleared and determine what we can do to 

improve OSHA and make sure the government does its duty in trying to protect 

Americans in terms of safety and health. I agree with Major Owens on that process.

Mr. Owens. Can I ask you to share the questions with us? 

Chairman Norwood. I'll be delighted.

Mr. Owens. Thank you very much. 

Chairman Norwood. So granted. This hearing is now adjourned. Thank you all. 

Whereupon, at 12:12 p.m., the Subcommittee was adjourned. 
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Table of Indexes 

Chairman Norwood, 1, 2, 5, 7, 10, 11, 13, 15, 16, 17, 18, 21, 22, 23, 25, 26, 27, 28, 32 

Mr. Ballenger, 23, 24, 25 

Mr. Chajet, 10, 26, 27, 31 

Mr. Goldsmith, 17, 20, 21, 22, 30, 31 

Mr. Keller, 21, 22, 23 

Mr. Owens, 18, 19, 20, 21, 28, 29, 30, 31, 32 

Mr. Rezendes, 16, 17, 18, 19, 24 

Mr. White, 19, 23, 24, 25, 30 

Ms. Seminario, 2, 20, 22, 24, 25, 27, 28, 29 
152
153

Table of Contents 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 

WORKFORCE

..............................................................................................................156

OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, SUBCOMMITTEE 

ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 

WORKFORCE

..............................................................................................................157

STATEMENT OF PATRICK BREYSSE, VICE CHAIR- ELECT, AMERICAN 

CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS, JOHNS HOPKINS 

UNIVERSITY, BALTIMORE, MD

..............................................................................................................159

STATEMENT OF TRAVIS NICHOLS, DIRECTOR OF SAFETY, BAKERY CHEF, INC., 

LOUISVILLE, KY ON BEHALF OF THE AMERICAN BAKERS ASSOCIATION

..............................................................................................................161

STATEMENT OF DAVID KARMOL, DIRECTOR OF PUBLIC POLICY AND 

GOVERNMENT AFFAIRS, AMERICAN NATIONAL STANDARDS INSTITUTE, 

WASHINGTON, D.C.

..............................................................................................................164

STATEMENT OF JOHN BIECHMAN, VICE PRESIDENT FOR GOVERNMENT 

AFFAIRS, NATIONAL FIRE PROTECTION ASSOCIATION, ARLINGTON, VA

..............................................................................................................166

STATEMENT OF HENRY LICK, PRESIDENT, SAFETY AND HEALTH SOLUTIONS, 

LTD, GROSSE ILE, MI, ON BEHALF OF AMERICAN INDUSTRIAL HYGIENE 

ASSOCIATION

............................................................................................................167

APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE 

NORWOOD, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE

..............................................................................................................187
154

APPENDIX B - WRITTEN STATEMENT OF PATRICK BREYSSE, VICE CHAIR-ELECT, 

AMERICAN CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS, 

JOHNS HOPKINS UNIVERSITY, BALTIMORE, MD

..............................................................................................................191

APPENDIX C - WRITTEN STATEMENT OF TRAVIS NICHOLS, DIRECTOR OF 

SAFETY, BAKERY CHEF, INC., LOUISVILLE, KY, ON BEHALF OF THE AMERICAN 

BAKERS ASSOCIATION

..............................................................................................................203

APPENDIX D - WRITTEN STATEMENT OF DAVID KARMOL, DIRECTOR OF PUBLIC 

POLICY AND GOVERNMENT AFFAIRS, AMERICAN NATIONAL STANDARDS 

INSTITUTE, WASHINGTON, D.C.

..............................................................................................................215

APPENDIX E - WRITTEN STATEMENT OF JOHN BIECHMAN, VICE PRESIDENT FOR 

GOVERNMENT AFFAIRS, NATIONAL FIRE PROTECTION ASSOCIATION, 

ARLINGTON, VA

..............................................................................................................227

APPENDIX F - WRITTEN STATEMENT OF HENRY LICK, PRESIDENT, SAFETY AND 

HEALTH SOLUTIONS, LTD, GROSSE ILE, MI, ON BEHALF OF AMERICAN 

INDUSTRIAL HYGIENE ASSOCIATION

..............................................................................................................233

Table of Indexes

..............................................................................................................251
155

HEARING ON THE ROLE OF CONSENSUS 

STANDARD-SETTING ORGANIZATIONS WITH OSHA 

___________________

Thursday, November 1, 2001 

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, D.C. 

 The Subcommittee met, pursuant to notice, at 10:33 a.m., in Room 2175, Rayburn House 

Office Building, Hon. Charlie Norwood, Chairman of the Subcommittee, presiding. 

 Present: Representatives Norwood, Isakson, Keller, Owens, and Solis. 

 Staff present: Victoria Lipnic, Workforce Policy Counsel; Travis McCoy, Legislative 

Assistant; Molly Salmi, Professional Staff Member; Jo-Marie St. Martin, General Counsel; 

Patrick Lyden, Professional Staff Member; Scott Galupo, Communications Specialist; Deborah 

Samantar, Committee Clerk/Internship Coordinator; Peter Rutledge, Minority Senior Legislative 

Associate/Labor; Maria Cuprill, Minority Legislative Associate/Labor; and Brian Compagnone, 

Minority Staff Assistant/Labor.

Chairman Norwood. The Subcommittee on Workforce Protections of the Committee on 

Education and the Workforce will come to order. 

 We're meeting today to hear testimony on the role of consensus standard-setting 

organizations involved with OSHA. Under Committee rule 12 (b), Opening Statements are 
156

limited to the Chairman and the Ranking Minority Member on the Subcommittee. Therefore, if 

other Members have statements, they will be included in the hearing record. With that, I ask 

unanimous consent for the hearing record to remain open 14 days to allow Members' statements 

and other extraneous material referenced during the hearing to be submitted in the official 

hearing record. Without objection, so ordered. 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

 We are here today to pick up where we left off earlier this year and to continue our 

discussion about ways to better the OSHA regulatory process. At our last hearing, we heard a lot 

about the OSHA rulemaking process in general. There were a number of suggestions made for 

reform. Today, we will focus more specifically on the role of consensus standard-setting 

organizations with OSHA. 

 I know that consensus standard-setting organizations can play many roles with OSHA, 

not simply confined to rulemaking. They can also work with OSHA in partnerships to improve 

the quality of OSHA's work, and to share ideas and expertise with OSHA staff about advancing 

safety and health in the workplace. 

 Improving safety and health in the workplace is why we are here today. I know some 

may think this is a rather conventional topic for an OSHA hearing, given the highly 

unconventional times we have been living in since September 11th. However, given the 

experiences of all of us on Capitol Hill recently, particularly those of us who are still shut out of 

the Longworth Building, or those working in post offices, in fact, there may be no better time to 

hold a hearing related to occupational safety and health. It seems to me that when we are faced 

with new threats to workplaces every day, examining ways to continuously improve OSHA is a 

worthwhile effort. 

 Let me take a moment to welcome our witnesses. We appreciate their willingness to take 

time out of their busy schedules to testify before the Subcommittee. I especially want to 

acknowledge our witness from ACGIH. Because of our first hearing and my correspondence 

with the Secretary of Labor regarding ACGIH, I committed that ACGIH would be given the 

opportunity to testify. I am pleased that they were able to make it today. 

 Let me add that some may think I am interested in putting ACGIH out of business. To 

the contrary, I am not interested in putting ACGIH or anyone else out of business. I certainly 

don't want to be in a position of discouraging private groups from working on threshold limit 

values for chemicals or standards that make improvements to our knowledge of safety and 

health.
157

 I do, however, believe that Congress has an obligation to pay attention to what OSHA 

does with information provided by private standard-setting organizations. If OSHA is in any 

way relying on private standards, then it seems to me that OSHA needs to ensure the integrity of 

the process used by the private group. If it cannot do so, then OSHA should not make use of that 

information. I certainly hope, and fully expect, that we will hear from someone from OSHA on 

this subject very, very soon. 

 It strikes me there are three reasons why we ought to look at the work of private 

consensus standard-setting organizations and the role they can play with OSHA. First, we've got 

a rulemaking process that is too slow, oftentimes for very good reasons, highly politicized, and 

really seems to satisfy no one. 

 Second, we've got a number of OSHA standards, such as the air contaminants standards 

that are out of date, and most would agree need to be updated. 

 Third, we've got a number of private, voluntary consensus standard-setting organizations 

that may have much to offer, and that do good work, but cannot meet all the requirements we 

expect in an OSHA rulemaking in terms of transparency, due process, creation of a public 

record, and ability of the regulated community to comment. In short, if we want to see OSHA 

improve the standards process, even to make updates to standards currently on the books, we 

can't quite get there from where we are today. But we can go forward. 

 I'd like us to figure out where we can go from here. I look forward very much to the 

discussions today, and the suggestions from all of our witnesses. 

WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION 

AND THE WORKFORCE – SEE APPENDIX A 

Chairman Norwood. Now want to yield to the distinguished Ranking Member, Mr. Owens, for 

whatever Opening Statement he wishes to make. 

OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE

Thank you, Mr. Chairman, for yielding to me. I want to thank this morning's witnesses 

also for their time and effort to be here with us. I look forward to your testimony. 

 This is the second hearing we've had relating to OSHA rulemaking. Let me be explicit 

about what my interest is in this hearing. Last year, the National Advisory Committee on 
158

Occupational Safety and Health issued a report and recommendations related to OSHA's 

rulemaking process. As stated in the NACOSH report, in 1971 OSHA adopted tables covering 

most of the substances specifically regulated by OSHA. These exposure limits were adopted 

from existing lists of federal and consensus standards, many of which were first published by 

ACGIH. Those values are now 30 years old. The 2000 ACGIH list contains different, and 

usually lower, values for many of the substances on the list, as well as a substantial number of 

additions. However, changing the permissible exposure limit for any substance on the list 

requires extensive rulemaking. 

 Since 1971, OSHA has completed rulemaking for only 28 toxic substances. In 1988, 

OSHA attempted to overcome this limitation by undertaking a generic rulemaking for more than 

300 substances. However, the 11th circuit court of appeals vacated that standard on the grounds 

that OSHA had not properly made the required determinations of significant risk, or feasibility 

for each individual chemical. Meanwhile, OSHA can only enforce the old values, 

notwithstanding 30 years of evidence that they may be harmful. 

 I am not particularly concerned about how a consensus standard organization functions.

Nor do I think we need debate whether or not a specific standard has consensus status. 

Notwithstanding the fact that a standard was issued by a consensus standard organization, if 

there is a controversy regarding the standard, then for my purposes, it is not a consensus 

standard.

 Even with these qualifications, I believe that there are voluntary standards that are both 

more protective than the current OSHA standard and that enjoy consensus status. NACOSH has 

specifically recommended that the Congress authorize the Secretary of Labor to adopt the 

updated consensus standard without going through the full rulemaking process. If the concern is 

that this represents too much delegation to the Secretary, then perhaps the Congress can act 

directly to update the standards, as we did with the needlestick legislation last year. 

 As I said at the last hearing, I do not think that this Congress is going to be able to 

improve OSHA's standard-making process, but, where voluntary standards are both broadly 

accepted by business and more protective of workers, then there should be a means by which the 

OSHA standard can be conformed to the consensus standard. 

 Finally, I commend the Chairman for affording the American Council of Government 

Hygienists an opportunity to testify. I continue to strongly feel that the June 14th hearing was 

inappropriate at best. It was wrong for this Subcommittee to be used to take sides in pending 

litigation, and it is especially wrong when only one party to that litigation was permitted to 

participate in the hearing. While affording ACGIH an opportunity to participate now does not 

wholly rectify the previous wrong, it does mitigate it somewhat, and I commend the Chairman 

for that action today. 

 Again, I thank today's witnesses for being here, and I yield back the balance of my time. 

Chairman Norwood. Thank you, Mr. Owens. And now I would like to introduce our panel of 

witnesses:
159

 Mr. Patrick Breysse from the American Conference of Governmental Industrial 

Hygienists. Mr. Travis Nichols on behalf of the American Bakers Association. Mr. David 

Karmol from the American National Standards Institute. Mr. John Biechman from the National 

Fire Protection Association. Mr. Henry Lick on behalf of the American Industrial Hygiene 

Association. 

 Welcome, all. Thank you for your time and willingness to come. As with most of our 

oversight hearings, it's a learning process for us all to try to determine how we can improve what 

the government does. 

 Before the witnesses begin their testimony, I would like to remind the Members that we 

ask questions after the entire panel has testified. And I suspect that we're going to get interrupted 

during that time with votes, for which we will recess briefly. In addition, Committee rules 

impose a five-minute limit, ladies and gentlemen, on all questions, as you know. 

There is a timer light set out before each of you there. When the yellow light comes on, 

we will ask that you begin to wind down your testimony. We note many of you have extensive 

testimony all of which will go into the record. So because you're only going to be given five 

minutes we'll ask you to summarize your testimony. 

Mr. Breysse, you may begin now, sir. 

STATEMENT OF PATRICK BREYSSE, VICE CHAIR- ELECT, 

AMERICAN CONFERENCE OF GOVERNMENTAL INDUSTRIAL 

HYGIENISTS, JOHNS HOPKINS UNIVERSITY, BALTIMORE, MD 

My name is Patrick Breysse. I'm appearing today on behalf of the American Conference 

of Governmental Industrial Hygienists, ACGIH. I'm an industrial hygienist, and I'm also a 

Professor at the Johns Hopkins University Bloomberg School of Public Health. I currently serve 

as the Vice Chair-elect of the ACGIH, and in January 2002 I will rotate to the Chairmanship. 

 I'd like to thank the Committee for this opportunity to appear with you today. I know this 

Committee is concerned about OSHA, about the OSHA standard setting activities, the amount of 

time it takes OSHA to set a standard, the content of the standards, and the amount of litigation 

generated by the standards. 

 In prior testimony before the Committee, it has been stated that OSHA uses ACGIH to 

set standards, to avoid the requirements of the OSHA statutes and the Administrative Procedures 

Act. I would like to take issue with that today. 

 At the outset, I would like to set the record straight that ACGIH is an independent, 

scientific, guideline-setting organization. We were established in 1938, many years before 
160

OSHA was created. ACGIH is not a tool of OSHA. ACGIH does not set standards. We do not 

recommend standards. We publish guidelines for use by practicing professional industrial 

hygienists as one of many factors, as one of many tools an industrial hygienist may use in 

evaluating whether specific hazards exist in one workplace or another. These guidelines are 

referred to as threshold limit values, TLVs, or biological exposure indices, BEIs. 

 As an industrial hygienist, part of my job is to advise employers and employees about 

how to maintain a healthy and safe workplace. I can't be an expert on every single substance and 

every single hazard that might be present in the workplace. I must look to some centralized body 

of knowledge, hopefully created by my peers, to help me in developing my recommendations. In 

recognition of this need, ACGIH was created. 

 The threshold limit values are guidelines that industrial hygienists like myself will use to 

help them in their professional practice. These guidelines were never meant to be used as 

standards. Each TLV is a representation that a committee of the ACGIH experts have reviewed 

the scientific literature on a substance, made a determination that the existing scientific data 

supports conclusions that an average worker can be exposed to a certain level of a substance 

without adverse health effects, and that this average worker can be exposed day in and day out 

for an entire working lifetime. 

 Because of the conservative nature of the TLV guideline-setting process, ACGIH does 

not claim that exposures above the levels are necessarily dangerous, but that there isn’t enough 

data for which we feel comfortable saying that higher levels would be sufficiently protective. 

 The TLVs are published for use by industrial hygienists, and along with each TLV an 

extensive documentation laying out the rationale for a specific TLV, and the literature that was 

relied upon to set the specific TLV is published. ACGIH strongly recommends that the industrial 

hygienists who use TLVs also have the companion documentation to use. One goes along with 

the other. It's not possible to use number or value, which we publish in a booklet every year, 

without understanding the scientific rationale that goes behind it. This is a fundamental tenet of 

industrial hygiene practice. 

 With my statement, I've provided the Committee with copies of two documentations. 

These two documentations will serve as examples of the type of TLVs and the documentations 

that we produce. You will note that this publication emphasizes repeatedly that TLVs are 

guidelines that industrial hygienists use, and are not meant to be used as standards. That's a point 

I can't make often enough. 

 This Committee has been told that ACGIH acts in secret. We don't believe this is true. 

Before a TLV is published in final form, we publish in our booklet that the substance is under 

study. Once a subject comes under study, a subcommittee of the full TLV committee assigns a 

person to review the literature, and makes a draft recommendation for a threshold limit value, 

and a proposed documentation. This draft documentation and the value is reviewed by the full 

subcommittee, where, if they agree with it, they can pass it on to the full committee, or if they 

don't agree with it, they will modify it, and debate it further. 
161

 Once the substance is approved at the subcommittee level, it gets approved and debated 

at the full committee level. Ratified by the board of directors, it becomes a threshold limit value, 

and we publish it under the notice of intended change. So it's a preliminary value, or a draft 

value at that point. 

 Once we publish the draft value, that's an alert to all affected parties of the number we're 

considering, and the research that we relied upon to set that number. Parties are free to comment 

at that point, and substances will stay in the notice of intended change for roughly a year, or in 

some cases, much longer than a single year. All the comments will be reviewed, and if germane 

to the threshold limit value, and appropriate for changing the value, they will be changed. 

 Once the threshold limit value is removed from the notice of intended change, the full 

committee votes on it, and it becomes the final threshold limit value at that point, and the board 

of directors ratifies it. 

WRITTEN STATEMENT OF PATRICK BREYSSE, VICE CHAIR-ELECT, AMERICAN 

CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS, JOHNS HOPKINS 

UNIVERSITY, BALTIMORE, MD 

SEE APPENDIX B 

Chairman Norwood. Thank you, Mr. Breysse. I encourage all Members to read your 

testimony. I found it very interesting reading, and I hope everybody does look at it.

Mr. Travis Nichols, you are recognized for five minutes. 

STATEMENT OF TRAVIS NICHOLS, DIRECTOR OF SAFETY, BAKERY 

CHEF, INC., LOUISVILLE, KY ON BEHALF OF THE AMERICAN 

BAKERS ASSOCIATION

Good morning, Mr. Chairman, distinguished Members of the Subcommittee. Thank you 

for the invitation to address this hearing today. With everything going on in the world right now, 

it's comforting to know that the business of our government continues forward. 

 I am a health and safety leader for a company called Bakery Chef, Incorporated, based in 

Louisville, Kentucky. Our company is a moderately sized bakery company that has five bakeries 

located through the United States, and we employ roughly 700 employees. We make a variety of 

products, many of which you've probably sampled yourself; biscuits, breads, hotcakes, materials 

of this nature. 

 My responsibility at our company is the management for all safety and health programs 

and initiatives, including regulatory accountability and Workers' Compensation. I began my 
162

career with the company out on the production floor as a baker, and was encouraged to continue 

forward, working with our company in health and safety matters, and actually helped develop 

our health and safety department. 

 My company fully supports creating a safe work environment for our employees. They 

encourage these activities. They even paid for my tuition to become a nurse so I could better 

help our health initiatives with our company. In my role as a health and safety professional for 

our company, I work with both our operations personnel and leadership to maintain a safe work 

environment. 

 Today I am testifying on behalf of the American Bakers Association. The ABA is a trade 

association that represents the nation's wholesale baking industry. Its membership consists of 

more than 300 wholesale bakeries and allied service firms. These companies represent 

approximately 80 percent of the nation's baked goods. The members of the ABA collectively 

employ tens of thousands of employees nationwide in the production, sales, and distribution of 

baked goods. 

 In the past few years, the baking industry has become very concerned about one of the 

so-called consensus organizations, the American Conference of Governmental Industrial 

Hygienists. ACGIH creates TLVs that are frequently used by OSHA as the foundation for their 

exposure limits, and that are also used by OSHA in what is known as general duty clause 

violations. In addition to federal OSHA, 23 state OSHA plans rely heavily on these TLVs that 

ACGIH develops. These state and federal OSHA plans need to have the confidence in the 

procedures and the end results of the consensus standards that they are relying on. 

 As the wholesale baking industry has found out, ACGIH has issued several TLVs that 

have questionable scientific bases. Making matters worse is that every aspect of the 

development of these TLVs is done in secret, with no public input. During the recent 

development of a TLV for flour dust, ABA, the American Bakers Association, was unable to get 

copies of proceeding minutes, the list of committee members, their professional qualifications, 

summaries of the scientific analysis, nothing. Our written statement covers the number of 

attempts that we made to open the discussion on the flour dust TLV. 

 ABA was joined by the North American Millers Association and Canadian National 

Millers Association to conduct an analysis of ACGIH's justification for this flour dust TLV.

Sandler Occupational Medicine Associates, SOMA, conducted this analysis, and found that the 

TLV that they had created for flour dust was based on very limited, indefinite, and unconfirmed 

information that is not substantiated. Quite simply, the scientific evidence did not provide a 

basis for the control of exposure at specific thresholds, particularly to the exposure to flour dust 

for purposes of preventing or limiting flour allergen sensitization and other work-related effects. 

 ACGIH cloaks its TLV standards in legal disclaimers that note that their work products 

are not intended for use in enforcement. Let me tell you from personal experience, these TLVs 

are being used quite readily for enforcement purposes. In early 2000, when we first learned of 

the TLV for flour dust, we were greatly shocked, because it was 30 times lower than OSHA's 

nuisance dust level that had been established. It was also far lower than any of the SOMA 
163

standards for materials that we would commonly think are more serious in nature, such as copper 

dust.

 Our company formed an in-house team, and we worked with Kentucky OSHA, who 

we've had a great relationship with, to study this. In looking at the SOMA critique, we found 

that the science just isn't there. This is a fatally flawed threshold limit value. OSHA investigated 

us for exposures to flour dust, and found that under the OSHA standards, we were more than 50 

times in exposures to our people as what was required by OSHA. 

 When we were, in turn, investigated under this new TLV, it was found that, through some 

questionable testing, that we did not meet the requirements for this new TLV. The difference 

between the old standard and the new standard is significant, and the science, quite simply, isn't 

there. Personnel working in the department, making biscuits, who would normally wear hairnets, 

earplugs, safety glasses, and are not required under OSHA's standard for exposure to wear 

respiratory protection, under this new TLV would be required to wear respiratory protection very 

similar to that you've probably seen here on Capitol Hill recently in dealing with hazardous 

materials. This is an extreme leap for making biscuits. 

 Our largest request and it's in our written documentation is that the process is opened up 

and democratic and allows us to have a seat at the table in forming a true consensus standard. 

Chairman Norwood. Thank you very much, Mr. Nichols. I encourage everyone to read your 

testimony. I think we have about six or seven minutes left before the next vote. There will be 

just one vote, so we'll try to reconvene ten minutes after it. We'll be back as fast as we can.

We're in recess. 

[Recess.]

Chairman Norwood. The Committee will come to order. I apologize, gentlemen, for our 

disruption. Hopefully, we won't be disrupted now for an hour or so. 

Mr. Karmol, I think it is your turn to be recognized for five minutes. 
164

STATEMENT OF DAVID KARMOL, DIRECTOR OF PUBLIC POLICY 

AND GOVERNMENT AFFAIRS, AMERICAN NATIONAL STANDARDS 

INSTITUTE, WASHINGTON, D.C. 

 Thank you, Mr. Chairman and Members of the Committee, for the invitation to testify 

today. I am David Karmol, Director of Public Policy and Government Affairs of the American 

National Standards Institute. This hearing is of great interest to us, as ANSI and many ANSIaccredited developers of voluntary consensus standards work closely with OSHA, as they do 

with many other federal agencies. I'll summarize my written statement filed with the Committee, 

and ask that the full statement be made part of the record. 

 The voluntary standardization system in the United States is the most effective and 

efficient in the world. For nearly 100 years, with the active support and participation of both the 

private sector and the U.S. government, ANSI has coordinated the voluntary standardization 

system in the United States. We accredit standards-developing organizations, and designate 

American national standards that provide dimensions, ratings, terminology and symbols, 

procedures, test methods, performance, and safety requirements. There are today approximately 

13,000 such American national standards, produced by over 200 ANSI accredited developers, 

including two on this panel today, NFPA and AIHA. 

 ANSI is also the United States representative to the International Organization for 

Standardization, and through the U.S. national committee, the International Electrotechnical 

Commission. Last month the Chairman of our ANSI Board of Directors, Oliver Smoot, was 

elected President-elect of ISO for 2002. Chairman Smoot and ANSI President Mark Hurwitz 

extend their greetings and their appreciation for your interest. 

 As the only accreditor of U.S. standards-developing organizations, ANSI ensures the 

integrity of the standards development process, and determines whether standards meet the 

criteria to be designated American national standards. To be accredited, a standardsdevelopment process must adhere to ANSI's principles of openness, balance, public review, and 

due process, which include the right to appeal. ANSI principles also require a complete record 

of evidence that representatives of all materially affected interest categories have reached a 

consensus on a proposed standard. ANSI regularly audits its accredited standards developers, to 

ensure that they are adhering to their procedures and to current ANSI requirements. 

 Now, ANSI recognizes there are many ways to develop standards, and that in some 

instances, other methods are appropriate for the respective user community. For the record, let 

me say that ANSI has no objection to organizations that develop standards outside the so-called 

formal process used within the ANSI community. ANSI believes it is up to standards users to 

decide where, and under what process, they want particular standards developed. 

 While the term, “public-private partnership” has been in vogue in recent years, it has 

been a reality for ANSI since our founding in 1918. We are a 501(C)(3) organization, but our 

membership includes federal agencies, and representatives of many of those agencies are 

members of our Board of Directors. These include the Department of Defense, NASA, the 

Environmental Protection Agency, the National Institute for Standards and Technology, the 
165

Consumer Products Safety Commission, and OSHA. 

 A series of laws enacted by the Congress require government agencies to use appropriate 

voluntary consensus standards. These are: The Consumer Product Safety Improvement Act of 

1990, the National Technology Transfer and Advancement Act of '95, the Health Insurance 

Portability and Accountability Act of 1995, the Telecommunications Reform Act of 1996, and 

the FDA Modernization Act of 1997. 

 These laws, as well as OMB Circular A-119, which has been issued and reissued by 

every administration since 1978, all are intended to achieve savings for the agencies, better 

coordination with the private sector, and regulations for procurement activity and international 

trade. ANSI has a positive, productive relationship with OSHA. We've had a series of 

memorandums of understanding with OSHA since the late 1970s that recognize that it is in the 

national interest to work together cooperatively on standardization matters. An OSHA 

representative serves on the ANSI board of directors, and OSHA employees are valued 

participants in standards-developing organizations. 

 We'd like to bring to the Committee's attention a serious problem that may require 

congressional action to resolve. OSHA regulations contain hundreds of outdated standards. In 

some cases the standards referenced have been out of date for 30 years or more. OSHA cannot 

update these regulations without going through a full public review process that the agency does 

not have the resources to accomplish. This is a nonpartisan issue. Assistant Secretaries of Labor 

for OSHA from both political parties have tried to resolve the problem, without success. We've 

discussed the issue with Assistant Secretary Henshaw. He understands the problem, and we're 

ready to work with him and the Committee to resolve this problem. 

 In conclusion, ANSI shares the Committee's desire to ensure that the Federal 

Government, most certainly including OSHA, relies upon the use of voluntary consensus 

standards that have been developed in an open, balanced process that provide protections against 

arbitrary or capricious actions, and against unfair dominance by an interest group. Thank you. 

WRITTEN STATEMENT OF DAVID KARMOL, DIRECTOR OF PUBLIC POLICY AND 

GOVERNMENT AFFAIRS, AMERICAN NATIONAL STANDARDS INSTITUTE, 

WASHINGTON, D.C. – SEE APPENDIX D 

Chairman Norwood. Thank you, Mr. Karmol. Just so you know, this Committee understands 

the problem, too, and we're in the process of trying to think through it. That's part of what these 

hearings are all about. So we appreciate any help your organization offers this Committee in the 

days to come. 

Mr. Biechman, you are recognized for five minutes. 
166

 STATEMENT OF JOHN BIECHMAN, VICE PRESIDENT FOR 

GOVERNMENT AFFAIRS, NATIONAL FIRE PROTECTION 

ASSOCIATION, ARLINGTON, VA 

Thank you, Mr. Chairman and Members of the Committee, for allowing me to testify this 

morning. My name is John Biechman. I'm Vice President for Government Affairs at the 

National Fire Protection Association. 

NFPA is a 105-year-old not-for-profit codes and standards development organization 

headquartered in Quincy, Massachusetts. Its mission is to reduce the worldwide burden of fire 

and other hazards on the quality of life. NFPA publishes over 300 codes and standards. The 

American National Standards Institute accredits all of NFPA’s codes and standards, and they 

meet the requirements for voluntary consensus standards of the Technology Transfer Act of 

1995.

 NFPA develops and renews its codes and standards through a voluntary consensus 

process. Over 5,000 volunteers participate in more than 200 technical standards committees. The 

technical committee members represent a balanced cross-section of industry, labor, and allied 

interests. They are selected based on their technical expertise and ability to fully participate in 

the work of the committee. The NFPA process is open, balanced, ensures due process, and 

provides for an appeals process. 

 OSHA staff has participated in several of NFPA's technical committees, including our 

commercial maritime-related committees, our flammable liquids, finishing processes, and 

pyrotechnic committees. Since the 1975 code cycle, OSHA has participated in NFPA's national 

electrical code correlating committee, and NFPA's standard 70E, the electrical safety 

requirements for employee workplaces. OSHA has been involved in that. The standard was 

specifically developed for an OSHA rulemaking, and with OSHA participation. 

 Because NFPA is accredited by ANSI, our codes and standards must be updated at least 

every five years. Oftentimes, however, NFPA standards are revised on a more frequent basis to 

reflect new technology or findings. Several federal agencies and departments reference NFPA 

standards. A list of the NFPA codes and standards to be revised or reaffirmed is published in the 

Federal Register, through the National Institute of Standards and Technology, NIST, at the outset 

of each review cycle. This affords the opportunity for those interested in NFPA codes and 

standards to participate in the process. 

 To address NFPA's specific experience with OSHA, the original 1970 OSH act allowed 

the Department of Labor to jump start rulemaking to improve worker safety, by adopting 

consensus safety standards through an expedited regulatory process known as the 6(a) process. 

Approximately 50 NFPA standards were adopted in the mid 1970s, and most are still codified as 

baseline OSHA safety standards. Many of the referenced NFPA standards date back to the 

1960s. Most have been superseded by state of the art successor standards adopted by NFPA, and 

are applied in the workplace today, but OSHA has not adopted them. 
167

 One reason it is difficult to update OSHA safety standards is that the 6(b) process that 

succeeded the 6(a) expedited process often takes several years at rulemaking, and only a few 

rules are considered each year. The problem is further exacerbated because OSHA inspectors 

are required to issue de minimus violations when an employer complies with newer additions of 

a consensus standard, rather than the obsolete standard referenced in the code of federal 

regulations. Recognizing the problem with this approach, OSHA inspectors can waive fines, but 

the de minimus violation remains. 

 One possible solution to this problem would be for OSHA to recognize contemporary 

editions of consensus standards in the C.F.R. by title, number, and edition date as acceptable for 

OSHA compliance, as long as the level of protection as determined by OSHA is at least as 

effective as the original consensus standard cited. In this way, an original standard adopted by 

OSHA in the 1970s under the 6(a) process would be maintained as the minimum, but employers 

would be free to use a later addition without penalty. The original standard would continue to be 

referenced in the C.F.R., and a notation would be added to reference later additions. 

 NFPA has worked well with OSHA, and encourages OSHA to continue to work within 

the voluntary consensus standards development process. Furthermore, we hope that OSHA, 

when participating in the voluntary consensus process, will take into consideration the thoughts 

and suggestions of technical committees, because they are truly balanced, and voluntary 

consensus committees that represent state of the art technology, and best work practices found 

within the industry today. 

 Mr. Chairman, I want to thank you for giving us the opportunity to testify this morning. 

WRITTEN STATEMENT OF JOHN BIECHMAN, VICE PRESIDENT FOR GOVERNMENT 

AFFAIRS, NATIONAL FIRE PROTECTION ASSOCIATION, ARLINGTON, VA – SEE 

APPENDIX E 

Chairman Norwood. Thank you very much. 

 Mr. Lick, you may now begin your testimony. 

 STATEMENT OF HENRY LICK, PRESIDENT, SAFETY AND HEALTH 

SOLUTIONS, LTD, GROSSE ILE, MI, ON BEHALF OF AMERICAN 

INDUSTRIAL HYGIENE ASSOCIATION 

Chairman Norwood and Members of the Subcommittee, my name is Hank Lick, and I've 

been invited here to provide testimony on the role of consensus standard-setting-organizations 

with OSHA. I appreciate the opportunity to provide input on this important health and safety 
168

issue.

 At the present time, I am President of Health and Safety Solutions, a health and safety 

consulting company that I formed this year. Previous to that, I was at the Ford Motor Company 

for 32 years, and retired as manager of occupational environmental health sciences. I have also 

been active as a member and chair of several industry and governmental advisory committees, 

and recently completed six years on the National Advisory Committee on Occupational Safety 

and Health, NACOSH. At this time I am privileged to be serving as President of the American 

Industrial Hygiene Association. 

 Before I begin, Mr. Chairman, I'd like to take this opportunity to thank you on behalf of 

millions of Americans who desire a safe and healthy workplace, for your involvement in 

addressing this particular issue. I applaud your efforts, and I also would like to ask that my 

written testimony be inserted into the record. 

 For several years, I have been concerned with the degree of difficulty OSHA has 

promulgating health and safety standards. Since consensus standards were first adopted after the 

passage of the OSH Act, a relatively small number of standards have been promulgated. Further 

standards, such as the permissible exposure limits have not been successfully updated. The 

average time to develop and promulgate a standard is 10 years. During my service on NACOSH, 

I provided advice to OSHA on the development of standards, and in 1998, I requested NACOSH 

conduct a study to determine the reasons why the OSHA standard-setting process is so difficult. 

 NACOSH sought information from various stakeholders. After hearing from the 

stakeholders, NACOSH concluded that the standard-setting process was not working as 

intended. There were many recommendations included in the NACOSH report, and I have 

included a summary attached to my testimony. In fairness, many external and legal barriers have 

made the process more difficult. Several layers of review are now present that were not foreseen 

in the OSH Act. However, NACOSH stated that, “OSHA and the National Institute of 

Occupational Health and Safety have not developed management systems to address potential 

changes in the regulatory environment.” Further, NACOSH concludes, “OSHA and NIOSH do 

not synergistically act in setting standards.” 

 Also, OSHA has not supported its internal and advisory resources effectively. In my 

opinion, this is due to a weakness in strategic and tactical planning. OSHA and NIOSH should 

not shoulder all the blame for the standard-setting process not working. Consensus standardsetting organizations and professional associations should be more consistent and uniform in 

their support. These entities, together with OSHA and NIOSH, must form stronger alliances to 

resolve differences in scientific opinion early in the standard-setting process. 

 As the world's largest association of occupational and environmental health professionals, 

AIHA members are well aware that exposure limits and standards are a primary tool in disease 

prevention. AIHA's latest position in permissible exposure limits is also attached to my 

testimony for your review. But AIHA has not limited itself simply to adapting statements on this 

problem. Earlier this year, we formed a task force composed of labor, industry, and professional 

association representatives to see if an agreeable solution on this issue could be found. While it's 
169

early, I'm confident that this is a first step in finding a solution. I'm also convinced that 

leadership of an organization such as AIHA will bring the parties together. Our relationship with 

OSHA and NIOSH, labor, and industry is excellent, and I offer the assistance of AIHA as you 

move forward. 

 Since the NACOSH report, though, several events have occurred to point out the need to 

immediately address the standard-setting process, including the use of the Congressional Review 

Act on the OSHA ergonomic standard, and the lawsuits against ACGIH. These events have not 

changed my opinion that the standard-setting process is essentially broken. However, they do 

point out that we need to resolve this issue. The broken standard setting process impacts 

business, and distract OSHA from its primary mission of protecting worker health and safety.

The ACGIH TLV process is the only viable worker exposure limit-setting process we now have. 

OSHA PELs, though, are essentially 1968 ACGIH TLVs, and therefore, for the most part, are 

outdated and irrelevant. Some say that the ACGIH process is flawed, but if ACGIH is no longer 

involved in standard setting, then someone else needs to step up to the process. 

 It has been 32 years since the passage of the OSH Act. Businesses that weren't even 

imagined at that time now dominate commerce. Many hazards that were present at that time 

have been controlled, but new hazards have replaced them. The global economy is dynamic, but 

our standard-setting process is not. Congress needs to amend the OSH Act to incorporate today's 

realities. Businesses must support a consensus standard setting process with their best talent and 

financial resources, and health and safety professionals and their associations must work 

together, and with consensus standard-setting organizations. 

 In closing, I'd like to applaud your efforts hoping that we will be able to find a better way 

to improve the health and safety of American workers. AIHA stands ready to assist you in 

Congress in every possible way in this goal. I'd be happy to answer any questions that you might 

have, and I thank you very much for your time. 

WRITTEN STATEMENT OF HENRY LICK, PRESIDENT, SAFETY AND HEALTH 

SOLUTIONS, LTD, GROSSE ILE, MI, ON BEHALF OF AMERICAN INDUSTRIAL 

HYGIENE ASSOCIATION – SEE 

APPENDIX F 

Chairman Norwood. Thank you, Mr. Lick, for your testimony. And indeed, gentlemen thank 

you for your testimony. I'll remind us all that the question and answer period is limited to five 

minutes per Member. However, we will have more than one round. I'll recognize myself for the 

first five minutes. I'm going to direct this question to the whole panel generally. 

It seems to me that we have somewhat of a consensus on this panel that it's extremely 

difficult to get any kind of agreement about the science behind standards, even within the 

consensus standard-setting organizations. I wonder if any of you, or all of you agrees with that? 

Anybody? 
170

Mr. Lick. I'd like to answer that. 

Chairman Norwood. Yes. 

Mr. Lick. There are different constituencies that people represent, and different areas of 

experience. The health standards field is so broad; it's hard for anyone to know everything about 

a particular subject. Just take, for instance, the ergonomic standard. You may be good at doing 

things in the industrial environment, but when it comes to offices, you fall down. So it's hard for 

everyone to know everything. 

Typically, unless you have an extremely large group, which presents another problem, it's 

hard to get in all the information that you need to have. And in many cases, people that have the 

information don't share it. 

Chairman Norwood. Anybody else have a thought about the difficulty of the science, and 

obtaining a consensus even within your own groups? Do any of you think this is a problem? 

Mr. Breysse? 

Mr. Breysse. Yes. I'd like to share our perspective, since ACGIH does not consider itself to be a 

consensus standard-setting group in the manner that you've heard others speak about today. 

We are an independent group of scientists, if you will, who look at the literature. We 

recognize that, in many cases, there's tremendous uncertainty with respect to what should be 

safe, what studies should be given more weight, what studies should be given less weight. 

However, we are able to reach agreement within our own committees about what level is most 

protective. And the way we are able to do that is because we adopt a relatively conservative 

approach. Since we don't advertise our standards as being consensus standards by any means, 

we're able to reach some agreement among our own committee members about just how low we 

really think levels should be, and what the most protective level we feel comfortable about is.

And when we adopt that philosophy, we're able to reach some agreement within our own 

committee. 

However, we recognize that when we publish these numbers out in the broader scientific 

community where people have to look at aspects associated with both technical and economic 

feasibility, that that creates some difficulty for them. However, we do not consider those issues 

within our own group. And therefore, I think we eliminate some of the complexity that other 

groups have to deal with. 

Chairman Norwood. It interests me that, in your testimony, you stated over and over again that 

your standards are not developed for use as legal standards. I am convinced you believe that, 

and you mean that. However is any of your TLV standards, through no fault of your own, used 

as legal standards? 
171

Mr. Lick. We recognize that, through no fault of our own, in fact against our own 

recommendation that countries around the world use them, and they creep into the regulatory 

arena in certain aspects of OSHA regulations. 

 However, we feel very strongly, as health and safety professionals, that numerical 

guidelines for safe levels of exposure are just one tool in the arsenal of a health and safety 

professional that allows you to make decisions about what's appropriate for any workplace or 

not.

 For example, we heard this morning that adopting a TLV would result in increased 

respiratory protection. We don't recommend anything about respiratory protection. In a mature 

health and safety program, decisions have to be made about how to protect somebody with 

respect to respiratory protection, or with respect to other engineering controls, in a broader 

context of a medical monitoring or a medical surveillance program. And in that context, a TLV 

is just one piece of information. They become codified as standards, in the sense that if you're 

above this level, you're overexposed, if you're below this level, you're safe. We really think this 

misrepresents what we feel these numbers stand for. 

Chairman Norwood. Since you don't feel you're putting out consensus standards your group 

doesn't necessarily concern itself with issues of transparency and due process for the regulated 

community; is that correct? 

Mr. Lick. We concern ourselves with transparency to the extent that we operate within our own 

policies and procedures. Now, we're more than willing to discuss the understanding more 

broadly, but we don't think it's an issue of transparency. We don't consider these things, in the 

broader context 

with respect to your question, because we're not a consensus standard-setting group. 

Chairman Norwood. Since you aren't producing a consensus standard, you work on different 

guidelines than those who are. Would you agree that, whether you like it or wish it, OSHA 

accepts your standards as consensus standards by reference? Would you agree, through no fault 

of your own, that OSHA uses your non-consensus standards that have some problems with due 

process for those that are regulated? 

Mr. Lick. I would agree that OSHA references the TLVs in a number of places. However, I'm 

not so certain that they are used in the formal standard. 

Chairman Norwood. When they reference it, doesn't it become a regulation that has the teeth of 

law and therefore it is a legal standard from their point of view, but maybe not from yours? 

Mr. Lick. If OSHA references a TLV in the hazard communication standard, it just says you 

have to list the TLV on the material safety data sheet. Does that make it a standard? I don't 

think so. 

Chairman Norwood. Well, what does it do for OSHA? What do they make it? 
172

Mr. Lick. You know, I'm not comfortable commenting on exactly how OSHA utilizes this 

information. I think I'd rather stick more closely to how we feel our information should be used. 

Chairman Norwood. All right. My time is up. But I'm coming back to ask Mr. Nichols that 

same question. 

 I recognize Mr. Owens. 

Mr. Owens. In follow-up on the Chairman's question, Mr. Breysse, you have an organization 

with unique expertise, that's respected not only in this country, but also throughout the world, 

you said. 

Mr. Breysse. Yes. 

Mr. Owens. Do you receive fees when organizations and governments adopt your standards? 

Mr. Breysse. No, we do not. 

Mr. Owens. Or use them as references? 

Mr. Breysse. No, we do not. 

Mr. Owens. So there's no reason for you to ever be conflicted about what you're doing, in terms 

of the ultimate use of your information? 

Mr. Breysse. That's correct. 

Mr. Owens. Thank you. Mr. Nichols, in several instances in your testimony, you say that an 

OSHA hygienist inspected your facility, or did exposure monitoring at your workplace. I want 

to be absolutely clear on this, and I'm confused. Was that individual a federal employee, or an 

employee of the state of Kentucky? 

Mr. Nichols. Mr. Owens, that was an employee of the state OSHA. 

Mr. Owens. The state of Kentucky? 

Mr. Nichols. That is correct, sir. 

Mr. Owens. Has federal OSHA ever sought to impose the flour TLV in your company? 

Mr. Nichols. No, they haven't, sir, but that becomes part of the issue. Kentucky OSHA, after 

having the opportunity to review the rationale that ACGIH had presented to create the TLV, and 

after reviewing the Sandler analysis, withdrew their citation because the science wasn't there. 

That still doesn't mean these situations will not take place for other states. 
173

Mr. Owens. Are you aware of any situation where federal OSHA has cited anyone for failure to 

comply with the flour TLV? 

Mr. Nichols. Federal? No, sir. 

Mr. Owens. You don't know of any instances? 

Mr. Nichols. There's the potential for that to happen, though. 

Mr. Owens. I know you stated this in your prepared statement, but once again, for the record, 

isn't it in fact true, the Kentucky citation based on the flour TLV was dismissed? 

Mr. Nichols. That is correct, sir. 

Mr. Owens. It was dismissed. 

Mr. Nichols. It was. 

Mr. Owens. So the kind of gas mask photo that you showed was unnecessary. That was never 

required, right? 

Mr. Nichols. It would have been required under their citation. It was withdrawn once they had 

an opportunity to see the science.

Mr. Owens. It's a science fiction that you chose to use. They never went that far. 

Mr. Nichols. No. That would have been the required abatement had they not just recently 

withdrawn it. 

Mr. Owens. Mr. Lick, you state that AIHA has formed a task force to find a solution to the 

problem of updating. How much time do you think this task force will need to complete its 

work? 

Mr. Lick. That's really hard to say. It depends upon the good will of everyone. Also, the issue 

that was holding us back was the lawsuits against ACGIH. I see it continuing. This is 

encouraging, but we've also tried this several times before. If there is genuine interest on the part 

of Congress and OSHA to resolve this, then we can go further. 

The issues of what is a consensus standard certainly have to be resolved, and I might say 

that not only did industry object to using the ACGIH TLVs at one point in time, but the labor 

community did also. So industry may, at times, view them as too strict, and labor may view 

them as not strict enough. So there has to be a meeting of the minds where people understand 

that they can't have everything. 
174

So if you can get to yes on that point, then I think it's a fairly simple task to do. But as 

I’ve said, we've been down that road several times before. It's a new effort to try to do that. 

Mr. Owens. Our society becomes ever more complex, and we tend to always be way behind in 

terms of the methods we use to react. In New York at ground zero, an article was written 

recently that showed that you have a cocktail of pollutants that the workers are being subjected 

to, or the people who live adjacent to that area. And the comments by the government agencies 

and authorities are very confusing and mixed up. And it seems that you have a situation there 

which nobody is on top of, or really knows how to deal with.

In the Anthrax situation, it's pretty clear that nobody really knows how to deal with that.

Several of you are industrial hygienists, and you all are interested in this area of expertise. Is 

there a role here for the industrial hygienist, and for the kind of thing we're talking about that's a 

gap that needs to be filled, and a role that you can play? 

Mr. Lick. With both the situations you reference, between the World Trade Center, and also the 

anthrax situation, it really is looking at the things in a total systems approach, and it's more of 

emergency preparedness. Now, the TLVs as far as World Trade Center goes, those folks at 

ground zero when the buildings came down were exposed to a massive amount of dust. So the 

TLVs really would have no application there. 

Mr. Owens. I'm talking about the workers, who are working there every day now, to clean up 

the mess. 

Mr. Lick. Now we're into a different kind of situation for the workers. The first week or so, we 

were trying to recover people, and get people back in their residences and people back in their 

offices. So the plan that you would have at that point in time would be a recovery plan, which 

would be a lot different. As to the level of emergency planning, I think, that you've seen New 

York respond pretty well. And I also think that NIOSH and EPA and OSHA responded pretty 

well.

Mr. Owens. Is there a role for you? 

Mr. Lick. The role is in the emergency planning process. You have to have a plan before you 

get here. I mean, you can't say that smallpox is eradicated, when there's still potential for 

smallpox out there. So it's the issue of the surveillance system. By the way, the surveillance 

system in the TLV or the PEL process doesn't exist the way it should to feed data back. 

Mr. Owens. Okay. I don't want to get into smallpox. Anthrax has shown up in the workplace. 

Those two postmen died. 

Mr. Lick. It's a question of practicing as a system. 

Mr. Owens. Mr. Breysse, would you care to comment? 
175

Mr. Breysse. Yes. The examples you and Hank Lick pointed out, illustrate the complexity of 

providing adequate health and safety in not only traditional workplaces, but in these unique 

settings such as we see today with bioterrorism and the World Trade Center collapse. I've been 

up in New York doing air monitoring on workers up there, and I could say that the health and 

safety community has to learn how to do a better job at responding to those disasters, looking at, 

in a rapid way, what the levels of exposures are. And in this situation, the TLVs are obviously 

relevant, as are the PELs, but they're just one piece of information. People are exposed to 

multiple things at the same time. Looking at one level, and comparing it to another TLV, I think 

defeats the whole purpose of being up there. 

 So we have to look as a profession at how we can respond to these things better, how we 

can collect the information we need in a more rapid manner, how we can provide the appropriate 

worker protection in a timely manner, with the associated training that goes along with it. We 

don't want to have the situation now where people are choking and coughing, and they're 

complaining about respiratory disease from having worked up there for a couple months, and 

inhaled high levels of dust in some cases. But not just dust. There are gases and vapors, 

possibly bioaerosols, as well as dust. So it's very complicated. 

Mr. Owens. The world has run off and left us, and much of this discussion is sort of obsolete.

We're so far behind; it's criminal, almost. 

Mr. Lick. Yes, sir. 

Mr. Owens. Thank you. 

Chairman Norwood. Thank you, Mr. Owens. I'd now like to recognize Mr. Isakson, from the 

great state of Georgia, for five minutes. 

Mr. Isakson. Thank you, Mr. Chairman. 

Mr. Karmol, this may sound like a dumb question, but I wanted to ask you. When ANSI, 

goes through its disciplines and develops a standard in telecommunications, or health, or the 

petroleum industry, or whatever, would you define that generally as a minimum standard, an 

acceptable standard, or a high threshold standard? 

Mr. Karmol. Mr. Isakson, first of all let me start by saying that ANSI itself does not develop 

standards. We accredit the organizations that do. 

But in particular with respect to what you asked for example, it might be IEEE that would 

develop that kind of a standard. It's really up to the standards-developing organization to 

designate the scope of the standard, and determine whether it's a minimum, or a range. It's up to 

the developer, and it's up to the consensus process. 

What we ensure is that the process involves all materially affected parties, that they reach 

a consensus, that it's transparent, that records are kept, and that there's the right to appeal if that is 

not done. So it is up to the user. And that's really one of the strengths of the American system. 
176

We don't determine from above how the standards should be put together. The users and those 

who have to work with the standards determine it. 

Mr. Isakson. So it's fair to say, then, that the agencies that you accredit develop standards that 

will sometimes be a minimum, sometimes acceptable, and sometimes high. Because of the 

consensus process it may be the standard itself that's being set, and what it deals with. Isn't that 

correct?

Mr. Karmol. I think that's fair to say. And I might ask Mr. Beichman if he'd want to comment. 

Mr. Isakson. That's fine. I’m leading up to another question I want to ask Mr. Beichman. 

I'm sorry that I missed some of your testimony. Could you elaborate on any enforcement 

problem for a company that may have a higher standard for fire protection, for example, than 

might be the standard required by OSHA? Are there difficulties? 

Mr. Biechman. Congressman, there are difficulties if the OSHA standards are old, or based on a 

consensus standard that had been developed 30 years ago. In my testimony I indicated there’s a 

manual called FIM, and that's Field Inspection Manual. Inspectors are really required to issue a 

citation. They can waive the fee or the fine involved, but the citation remains. And that's the 

difficulty of an employer or a company upgrading, if you will, to current standards, but being in 

violation of the existing OSHA standard. 

Mr. Isakson. That's exactly the reason I asked the question. It's an unintended consequence of 

the delay in the process caused by an old standard, which at the time was acceptable but actually 

ends up being in conflict with a new standard that's set due to newer science, newer discoveries, 

or new industry liability.

Which brings me to my last question, Mr. Chairman, for Mr. Nichols with the bakery 

industry. Would I be correct in saying that most of the standards set by American industry are 

set expeditiously and scientifically, but also motivated because of the liability concern they have 

for their employees and their company? Is that a fair statement? 

Mr. Nichols. The standards set by OSHA? 

Mr. Isakson. No, the standards set by your particular company, or your particular industry. 

Flowers is a big bakery in Georgia. They are constantly changing their standards within their 

plants, I'm sure, out of an interest for the health of the employees, but also to limit the liability 

they have as an employer. Is that a fair statement? 

Mr. Nichols. Exactly, sir. And it makes good business sense to have a safe work environment. 

Mr. Isakson. So it's also possible that an antiquated rule or a standard adopted with the best of 

intentions actually could be inconsistent with a more responsible treatment for a particular 

problem, contamination, process, or use. Is that a fair statement? 
177

Mr. Nichols. I think the key is, in developing new standards, even consensus standards, there has 

to be involvement by the industry. I believe the problem we're running into is that we are being 

held accountable for consensus standards that are not really consensus standards. They have not 

been developed, and the science and the thought process in developing those haven’t been well 

thought out. 

Mr. Isakson. Thank you, Mr. Chairman. 

Chairman Norwood. We'll have a second round of questions if that agrees with you, Mr. 

Owens.

Mr. Breysse, is what Mr. Nichols just said true? 

Mr. Breysse. No, I think I would take issue with that. I think it's fair to say that different groups 

of people could look at the same body of science and come up with different conclusions. 

Chairman Norwood. But you don't disagree with what he said, in that they aren't consensus 

standards? 

Mr. Breysse. I guess I need to be clearer about what exactly I'm agreeing to. 

Chairman Norwood. Well, basically he said that the standards that he has to live by are not 

consensus standards, and therefore, in their opinion, they're not often well thought out. 

Mr. Breysse. Well, I guess I would take issue with the, “not well thought out” part. 

Chairman Norwood. I thought you would. 

Mr. Breysse. We feel that our TLVs are extremely well thought out. We recognize that other 

people would have a different interpretation of the science. And in fact, we have, in our 

committee, significant representatives from private industry, who are there to represent the 

perspective of private industry. And many of those companies have their own internal health and 

safety guidelines. Frequently these are large companies often in conflict with our own TLVs, and 

they seem to manage to do business in this country just fine.

Chairman Norwood. “Representatives of large companies” meaning what companies? Mobil? 

Exxon? 

Mr. Breysse. Exxon. I could tell you exactly. We have Dow, Dupont, Exxon, Mobil, and 

Merck.

Chairman Norwood. Now, which one of those large companies knows anything about flour? 

Mr. Breysse. Oh. Well, I'm speaking more broadly about the TLV process in general, rather 

than specific in the context of the flour question. 
178

Chairman Norwood. Let me, for the record, set something straight. Mr. Nichols, my 

understanding is that your problem was with Kentucky OSHA. However, all state OSHA’s have 

to be approved by federal OSHA, and generally my experience is that they work hand in hand. 

Mr. Breysse, I don't want you to misunderstand where I'm coming from. I don't really 

care what your organization does. That is your business. You are a private company. You fund 

yourself with dues, and you fund yourself with the sale of a book. Now, if you don't do a good 

job, your book sales will fall, and that's your business. That is not my business. So please 

understand that. 

In your testimony, you referred to the disclaimer listed in the ACGIH TLV booklet, 

which makes the statement that, “TLVs are not developed for use as legal standards, and ACGIH 

does not advocate their use as such.” What gets Congress involved in this is that you go on to 

say that you won't oppose their use in this particular kind of manner. 

 Now here is the rub. When you put out a non-consensus TLV standard, and it is accepted 

by reference as if gospel by OSHA, then the weight of the Federal and state governments is 

brought down on people who don't necessarily agree with that science, which is none of my 

business as long as OSHA doesn't accept you by reference. 

However, unless you have a great deal of transparency in your organization, and have due 

process for the regulated community, it appears to me that there are Americans on both sides of 

these issues, some of which aren't being treated fairly if they have no open, transparent process.

And OSHA has that responsibility. There is no question OSHA has that responsibility. 

 Here is the complaint. Not so much with you. You do whatever you have to do. It is 

none of my business. But when OSHA turns it into law without any transparency or any due 

process, Congress either has to tell OSHA they can't accept a non-consensus standard by 

reference, or be somehow or another involved. If OSHA is going to do that, you have to be more 

transparent and have due process and I don't want to tell you what to do. That is your particular 

business.

You stated in your testimony that, in your, “search for the truth for what a TLV really is, 

comments are invited from interested parties when the TLV is being set.” What is meant by 

“interested parties”? 

Mr. Breysse. When we recommend a new TLV, we publish that value on what we call the notice 

of intended change list. At that point, anybody who feels they're impacted by that, or have 

anything to say with respect to whether they think that is on target or off target, is free to submit 

information to the TLV committee that will be reviewed by the subcommittee. We don't define 

“interested party” ourselves. We leave it to the health and safety community to decide who's 

impacted and submit comments. 

Chairman Norwood. What is the “health and safety community”? What does that mean? 
179

Mr. Breysse. Well, we are fundamentally a health and safety organization and members of the 

industrial hygiene community are the people who are most likely to receive our booklet, to 

receive our publications, to visit our web page, to go to meetings where ACGIH has a booth. 

And so our primary means of outreach with respect to what we're doing is through the 

occupational health and safety professional community.

Chairman Norwood. So if someone wants to come and comment to your organization, they can 

do that? 

Mr. Breysse. Absolutely. 

Chairman Norwood. They can come and make verbal comments, so that they know their 

comments are being heard? 

Mr. Breysse. We discourage verbal comments. Number one, because there's no formal record of 

that. Number two, because they take a long period of time. Written comments usually are more 

organized and more thoughtful, and can be reviewed by a larger number of people. 

Chairman Norwood. Are they? 

Mr. Breysse. Yes. 

Chairman Norwood. Are you sure? 

Mr. Breysse. Yes, I am, sir. In some cases we do. When we think there's enough information, 

perhaps a one on one conversation is appropriate. We will schedule a larger symposium early in 

the TLV setting process, to which affected parties can come and present data, when they feel 

there's enough new data to be presented. And we will publish it in our association journal and it 

becomes part of the peer-reviewed literature, so it is easier for us to reference when we document 

our TLVs. 

Chairman Norwood. My time is up. 

Mr. Owens, you're recognized. 

Mr. Owens. I have no further questions. 

Chairman Norwood. Well, I'd like to continue, with your permission. There are a few other 

things I'd like to ask. 

In your testimony, Mr. Breysse, you note that “ACGIH members amended the bylaws a 

year ago to permit industrial hygienists working for industry to have a full voting active 

membership in the association, on the same status of industrial hygienists working for academic 

institutions, or for federal, state, and local governmental agencies.” I have two questions about 

that. What prompted that change? Why did you guys decide to do that? 
180

Mr. Breysse. First of all, there's obviously been an evolution over the years of how we've 

proceeded. We've gone from being, in our early years, very close to government. We evolved 

through our middle years to being very close to industry, where there was a lot of informal 

contact. However, in the early 1980s, we underwent a tremendous amount of criticism about 

being too close to private industry. 

Chairman Norwood. Right. 

Mr. Breysse. At that point we reevaluated our practice. We've always had contacts with 

industry-affected members, but as a result, we had a variety of industry-sponsored members who 

were serving as consultants to the committee. These people participated in the debates about the 

TLVs. However, they couldn't vote on whether they thought the number was appropriate or not. 

And in our attempts to become more transparent and more balanced, we thought it was 

appropriate, if we were going to rely on these people, to open our membership so that these 

individuals could become voting members. They can serve on the committees with the full 

status, that myself as a university member, or as a government person could serve. 

 So fundamentally it came down to a question of balance, and we felt it was appropriate 

to allow these people, if they're participating, to also vote. 

Chairman Norwood. Let me take a minute to ask some fast questions. 

 What I've heard you say today, that we can all agree on, is ACGIH is not a consensus 

standard-setting organization. You've said that over and over in your testimony. Does the 

ACGIH TLVs development subcommittee meet in closed, not publicly announced sessions? Is 

the subcommittee composed of members whose names are kept secret from the public? 

Mr. Breysse. The members of the full committee are known and open to the public. The internal 

subcommittee membership, however, is not. 

Chairman Norwood. Once the developmental subcommittees adopt a TLV, would you agree 

that the ACGIH board members rarely, if ever, read or analyze the underlying scientific 

literature, and instead rely on the committee's recommendation? Isn't that correct? 

Mr. Breysse. The role of the board of directors is to ratify what the full committee proposes.

And in that context, in some cases, we spend a lot of time on the science if it's very complicated. 

A good example is we have a recent hand-arm activity level TLV, where we spend a lot of time 

reviewing it.

 In other cases, the science doesn't engender as much debate, and the full board of 

directors focuses on the process. We look at when the notice of intended change was 

promulgated, what kind of comments were delivered, were they of a controversial nature or not.

And if things proceeded relatively smoothly in those cases, a TLV will be adopted, ratified by 

the board of directors in a rather expedient way, without a lot of time spent going over the 

science.
181

Chairman Norwood. So the board is not required to review the scientific literature before they 

vote on a TLV? 

Mr. Breysse. They don't do an independent review of the scientific literature. 

Chairman Norwood. Is it the practice of your organization for one subcommittee member to be 

charged with developing a particular TLV and its documentation? One person? 

Mr. Breysse. For the first draft, that's true. 

Chairman Norwood. Do any conflicts of interest occur? For example, the author of the diesel 

exhaust TLV and documentation was Thomas Toome. Toome was a DOL employee charged 

with writing the last Administration's DOL MSHA diesel standard, and worked on both things 

simultaneously, using the two processes to support each other.

 Referring to an earlier question Mr. Owens asked about potential conflict, the answer 

was, well, you don't get paid to do this. But are there other ways to have conflicts in these 

situations? 

Mr. Breysse. Yes, you're absolutely right. I didn't mean to imply that because we don't get paid, 

there aren't any conflicts. In fact, the conflict of interest policy of ACGIH is something we spent 

a great deal of time on over the last year. And we have, through the development and 

implementation of that process identified a number of conflicts that we think are inappropriate.

Without getting into any specifics, one of those conflicts was the one you just mentioned, 

and under the auspices of the board of directors, working with the chemical substances TLV 

committee, we are reassigning the authorship of documents to individuals who have no readily 

apparent conflict, such as the one you mentioned. 

Chairman Norwood. Are you perhaps willing to identify the TLVs that have been proposed or 

finalized in the last 10 years, where federal employees were the primary authors? 

Mr. Breysse. No, I don't believe we are. 

Chairman Norwood. Would you be? 

Mr. Breysse. I'd have to speak to my counsel before I answer that question. 

Chairman Norwood. Why don't you consider that a request. We would like to have your 

answer.

Mr. Breysse. Okay. 

Chairman Norwood. Why is it that the ACGIH keeps the primary authors of the TLVs, and 

their documentation secret? 
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Mr. Breysse. Well, you know, it's not as sinister as sounds. 

Chairman Norwood. Well, I don't mean to make it sound sinister, and I hope you don't take it 

that way. I'm just curious. Why couldn’t people who are affected have this information? It's not 

your fault, but OSHA takes TLVs and turns them into a law, so the people that are affected 

should know this information. 

Mr. Breysse. Right. But put yourself in the position of us for a minute. We take the intellectual 

capital of our volunteers and we translate it into what we think is a tremendous service to society. 

We're a modest organization. We operate on a budget substantially less than $4 million a year, 

yet we feel we produce a great good. And we're able to do that because we're harvesting the 

intellectual capital of our volunteers.

We want to make their job as efficient as possible, and as easy as possible. The one thing 

we don't want is any one person to feel they are responsible for a single TLV. A person could 

draft the first one, but at that point it becomes a committee product. We want the committee 

responsible for it, not that person. We don't want them burdened with a lot of individual 

communications. We don't want them to be held responsible 10 years from now if “the number 

is 10 and not 1”, because in reality, all they're doing is creating the first draft. They're not 

creating the product. It's a committee product. 

Chairman Norwood. But it's always of interest to those that are being affected with lack of due 

process, to know who started the thing. That naturally would be of concern to people that are 

affected by the bottom line, or the outcome of the TLV, as OSHA turns it into a federal law. 

Mr. Breysse. I think a fair question to ask is, maybe not who wrote it first, but how it is 

identified it, and why was it picked on? You may notice if you look in our TLV booklet, there's 

over a hundred substances on the notice on the under study list, and there's about 40 on the notice 

of intent to change.

We've been working on developing and standardizing our policies and procedures in an 

attempt to become more transparent to groups like the gentleman on my left is associated with. 

We've now formalized a process through which we can explain to people, why we are picking on 

flour dust, or why we are picking on this other chemical. And it's not just because somebody sits 

there and says, “Jeez, I think this is a bad chemical, let me write a doc on it,” or because I work 

for a company, or a regulatory agency that really would like to tackle this, but can't, so “let me 

write a document on it.” That's not how we operate. 

Chairman Norwood. Well, knowing your organization and how all of this works, would you 

agree that governments should not adopt TLVs? 

Mr. Breysse. We're reluctant to make recommendations about policy. In fact, this is the first 

time that I am aware of anybody from ACGIH testifying in front of Congress about any of these 

matters at all. So I'm just going to defer that question, and say we don't want to get into that 

debate. We think it's the role of this committee and the role of the health and safety community 

to look at how we regulate the workplace, but it's not the role of ACGIH, and we just don't want 
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to be involved. 

Chairman Norwood. I don't blame you. I truly don't blame you. And frankly I'm in sympathy 

with you on that. 

I'm going to ask you two other quick questions, just because it's going to help us know 

how to deal with OSHA that takes your non-consensus standards and turns them into law. Will 

ACGIH open all of its TLV development meetings to permit attendance and participation to all 

interested parties? Would you be willing to do that? 

Mr. Breysse. No, I don't believe we would be willing. 

Chairman Norwood. Would you adopt a new process that includes scientific peer review by 

non-ACGIH independent science? Would you be willing to consider that? 

Mr. Breysse. Well, I guess in answer to your previous question, I don't want to say that we're not 

willing to consider anything. Clearly, we've been challenged over the last year, and due to that 

challenge, we're reevaluating everything we do. So I'm happy to say we're willing to consider all 

these things. 

Do I really think we're going to open things up? No. Do I think it's conceivable that we 

might have some external peer review? It's possible. And quite frankly at the last board meeting 

we actually initiated some debate on what the merits of that would be. 

Chairman Norwood. Mr. Owens? 

Mr. Owens. I have one closing comment, Mr. Chairman. 

Chairman Norwood. Yes. 

Mr. Owens. I'd like to note that ACGIH is a private, non-government organization that 

taxpayers do not fund. And I would also like to note that you, Mr. Chairman, have repeatedly 

implied that OSHA holds employers liable for ACGIH TLVs; TLVs that OSHA has never 

formally adopted. I want the record to reflect that that is just not true. They do not hold 

employers liable. 

Chairman Norwood. Mr. Nichols, how do you feel about that? 

Mr. Nichols. One of my concerns, Mr. Chairman, reflected by the question Mr. Owens asked 

earlier, is the fact that our incident involved the state OSHA, that does a great job working with 

us and, I think, did the correct thing in the end. But the problem is that there is a history of 

federal OSHA adopting these TLVs as the exposure limits that would then be enforced by our 

state agencies. That's why a lot of our requests have been for leadership from federal OSHA on 

this issue.
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We out in the field are being held accountable to these TLVs as if they were law. And 

these are not consensus standards for the industry. Had we not contested the citation, the picture 

that I showed with the young man wearing a full facemask respirator would have been the reality 

in our baking facility. I wish it was science fiction, but it's not. 

Chairman Norwood. Let me ask one last question, so each of you may have an opportunity to 

comment. What would any of you do or recommend to update the permissible exposure limits 

found in the air contaminants standard? 

Mr. Lick. This is not new with ACGIH, but goes back ages. ACGIH has made a significant 

contribution over the years. So what I would do is take the ACGIH list as it is now and put it 

into an ANSI process. 

There's more than just OSHA at stake. I think Congressman Isakson mentioned the issue 

of litigation. You run across these things in litigation. Let me say that OSHA, to a large 

business, is kind of irrelevant. It's really how you're preparing yourself, how you treat your 

employees, what your litigation responsibility is, and everything else. Asbestos is the biggest 

example of this with all the companies going bankrupt. 

 So I would take the ACGIH process, or the list as it is right now, and roll it into an ANSI 

process. I think from what I know, the majority of my board of directors would probably agree, 

although I don't think we've had a vote on that. A consensus-setting process would be much 

better, in the long run, for the country to get the input of everybody. It just would be a better way 

to go. But having said all that, some of my colleagues in industry are very forthright in turning 

data over, others are not.

 In my testimony, I talked about people that participate in the ANSI process. Before 

OSHA, you would get the guys like myself that participated in the ANSI process. After OSHA, 

you got someone that was further down on the food chain. You know, an up and coming person, 

but not with the years of experience. So if you change the process, industry has to step up.

Industry has to step up and put its best people into the process, and also financially support it.

As a chair of an ANSI committee in the past, I had to go and recruit people from all aspects, to 

get them involved. 

 So there is the issue of the best people participating, because you need the people with 

the longest, or the grayest hair to participate in this process. You can't have the young kids, 

because they haven't seen enough. And when there's a meeting that's in California, industry can't 

say, “Well, that's in California, you can't go, because we're in Detroit. And you go to the next 

meeting when it's in the Midwest.” 

 So industry has to step up. And in my experience, that's been so-so. This gets back to 

the question that Mr. Owens asked before. Where are we going to go with this process? People 

have to get serious. Perhaps the asbestos litigation and some of the other stuff will make people 

serious. But that's where we've got to go. We have to have a real serious process. 
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 I think ANSI is the best game in town, and that's where we need to go. The OSH Act 

itself has to be changed, because you have to have this process where it's going to freely move. 

You can't have regulations that have standards that are 30 years old, whether it's NFPA or 

whatever, if you're doing business in a large company, or even in a small company. 

I can speak to small companies, since there's a vast regulatory burden on small 

companies. It's hard enough knowing what's in the Federal Register to begin with. Even then 

you find out it's outdated. There are some health and safety, environmental, and fire people who 

know what's in there. But do they practice good in the profession? I don't know. But certainly, 

the process has to be so where it's current. 

 And then the professional organizations have to do their part in making sure that you 

have the education process, and people are aware of it. And then you have to have outreach to 

small business, because half the time small business has a hard time understanding what is 

meant; even ANSI standards. In many cases, people in the business write the standards for us, 

not for the people who run a small business. I used to say when I was in NACOSH, you tell me a 

standard.

I say this about ergonomics. My brother runs two tire stores in Cleveland. Can he 

understand what this standard is all about, and can he comply? That's where we fall down, 

because we put these standards together, and it's nice to say that they don't have an economic 

impact. But if we're truly going to make an impact on health and safety in this country, we've got 

to have a standard-setting process that small business can embrace, and large business can 

embrace and support. 

Chairman Norwood. Preparing for this hearing I read there had been a recommendation that 

perhaps some of these standards should be written so somebody like me can understand them! 

And the consensus was, “Oh, no, we can't do that, because if we do then it leaves them open to 

interpretation.” But my concern is always for the mom and pops. I think big business in this 

country does a very good job, for selfish reasons. It's the mom and pops that suffer if you're not 

careful with these standards. 

I have to vote. 

I agree with you, we don't need standards that are 30 years old. That just doesn't make 

sense. And I can't get anybody to make sense out of it, except perhaps if you're afraid of the 

legal profession. Surely out of all of the different standards that all of you set, there would be 

consensus for change on a great number of them. My concern is with those that there isn’t a 

consensus on, and those that cause some of the fights in your committee meetings when trying to 

determine what a TLV is. Those are the ones that OSHA is going to have to go through a regular 

rulemaking process on, because I am a big believer in due process and in transparency. But 

surely there are a number of standards that we as a nation could agree on to move and improve, 

that wouldn't take all of OSHA's resources. And that's part of what this hearing is really about.

 The other part of what this hearing is really about is that OSHA does indeed accept 

standards by reference that haven't met consensus, and I'm going to stop that one way or the 
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other. I'll tell you one of the ways I'm going to stop it. At the next hearing, and it's going to be 

very soon, we’ll have OSHA sitting right at that table and they're going to have to explain some 

things. People like you have to play a role in this process. You have to help us, as government, 

to develop this. I look forward to hearing from, and working with all of you. 

 Obviously we didn't get to all the questions today, and if you'd be kind enough, we'll 

mail you some additional questions. Please respond at your leisure in writing, because we really 

are trying to discover the way to do the right thing. But we're not going to let non-consensus 

science destroy people. I'm going to be very involved in keeping that from happening. 

 Mr. Nichols, I happen to know a lot of what you've been through, but Mr. Breysse, I also 

know a lot of what others in my backyard have been through under the same circumstances. So 

I'm very interested in transparency and due process, and stating publicly that OSHA has no 

business accepting your standards that are non-consensus by reference. You ought to say that to 

them, because I think that's what's gotten you in a bit of a mess. 

 Ladies and gentlemen thank you very much for your time, and I look forward to working 

with all of you in the future. 

Whereupon, at 12:30 p.m., the Subcommittee was adjourned. 
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Table of Indexes 

Chairman Norwood, 155, 158, 161, 163, 165, 167, 169, 170, 171, 172, 175, 177, 178, 

179, 180, 181, 182, 183, 184, 185 

Mr. Biechman, 165, 176 

Mr. Breysse, 158, 170, 172, 175, 177, 178, 179, 180, 181, 182, 183 

Mr. Isakson, 175, 176, 177 

Mr. Karmol, 163, 164, 175, 176 

Mr. Lick, 170, 171, 172, 173, 174, 175, 184 

Mr. Nichols, 172, 173, 176, 177, 183 

Mr. Owens, 172, 173, 174, 175, 179, 183