[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE USE OF NON-CONSENSUS STANDARDS IN WORKPLACE
HEALTH AND SAFETY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
of the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
April 27, 2006
__________
Serial No. 109-36
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://edworkforce.house.gov
______
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27-980 WASHINGTON : 2006
_____________________________________________________________________________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
HOWARD P. ``BUCK'' McKEON, California, Chairman
Thomas E. Petri, Wisconsin, Vice George Miller, California,
Chairman Ranking Minority Member
Michael N. Castle, Delaware Dale E. Kildee, Michigan
Sam Johnson, Texas Major R. Owens, New York
Mark E. Souder, Indiana Donald M. Payne, New Jersey
Charlie Norwood, Georgia Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan Robert C. Scott, Virginia
Judy Biggert, Illinois Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio Carolyn McCarthy, New York
Ric Keller, Florida John F. Tierney, Massachusetts
Tom Osborne, Nebraska Ron Kind, Wisconsin
Joe Wilson, South Carolina Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada David Wu, Oregon
John Kline, Minnesota Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado Susan A. Davis, California
Bob Inglis, South Carolina Betty McCollum, Minnesota
Cathy McMorris, Washington Danny K. Davis, Illinois
Kenny Marchant, Texas Raul M. Grijalva, Arizona
Tom Price, Georgia Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico Tim Ryan, Ohio
Bobby Jindal, Louisiana Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New
York
[Vacancy]
Vic Klatt, Staff Director
Mark Zuckerman, Minority Staff Director, General Counsel
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
CHARLIE NORWOOD, Georgia, Chairman
Judy Biggert, Illinois, Vice Major R. Owens, New York
Chairman Ranking Minority Member
Ric Keller, Florida Dennis J. Kucinich, Ohio
John Kline, Minnesota Lynn C. Woolsey, California
Kenny Marchant, Texas Timothy H. Bishop, New York
Tom Price, Georgia [Vacancy]
Thelma Drake, Virginia George Miller, California, ex
Howard P. ``Buck'' McKeon, officio
California,
ex officio
C O N T E N T S
----------
Page
Hearing held on April 27, 2006................................... 1
Statement of Members:
Norwood, Hon. Charlie, Chairman, Subcommittee on Workforce
Protections, Committee on Education and the Workforce...... 1
Prepared statement of.................................... 3
Owens, Hon. Major R., Ranking Minority Member, Subcommittee
on Workforce Protections, Committee on Education and the
Workforce.................................................. 4
Prepared statement of.................................... 8
Newspaper articles:
``Need WTC Delayed Death Bill,'' Chief Leader
Editorial, April 21, 2006.......................... 5
``OSHA Comes Up Short on Workplace, Safety-Program
Evaluations, Report Shows,'' Washington Post, April
26, 2006........................................... 6
Statement of Witnesses:
Chajet, Henry, Esq., Patton Boggs, LLP....................... 25
Prepared statement of.................................... 27
Marcucci, Elizabeth, safety director, Gonnella Baking Co., on
behalf of the American Bakers Association.................. 11
Prepared statement of.................................... 13
Mirer, Franklin E., Ph.D., CIH, director, UAW Health and
Safety Department, International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America (UAW) 21
Prepared statement of.................................... 23
Ruddell, James, director of environment and safety, Franklin
Industrial Minerals, on behalf of the National Stone, Sand
and Gravel Association..................................... 18
Prepared statement of.................................... 19
Additional Materials Supplied:
Letter submitted by the National Ready Mixed Concrete
Association................................................ 40
Prepared statement of the Independent Lubricant Manufacturers
Association................................................ 41
Letter submitted by David Felinski, safety director, the
Association for Manufacturing Technology, Secretariat, ANSI
B11 series reports......................................... 47
Prepared statement of Andrew P. Morriss, Galen J. Roush
Professor of Business Law & Regulation, co-director of
Center for Business Law & Regulation, Case Western Reserve
University School of Law, senior scholar, Mercatus Center
at George Mason University................................. 52
Prepared statement of the Precision Machined Products
Association................................................ 57
Statements and letters from the American Conference of
Governmental Industrial Hygienists (ACGIH)................. 59
EXAMINING THE USE OF NON-CONSENSUS STANDARDS IN WORKPLACE
HEALTH AND SAFETY
----------
Thursday, April 27, 2006
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:35 a.m., in
room 2175, Rayburn House Office Building, Hon. Charlie Norwood
[chairman of the subcommittee] presiding.
Present: Representatives Norwood, Biggert, Kline, Owens,
Kucinich, and Woolsey.
Staff present: Byron Campbell, Legislative Assistant; Steve
Forde, Communications Director; Rob Gregg, Legislative
Assistant; Richard Hoar, Professional Staff Member; Kimberly
Ketchel, Deputy Press Secretary; Molly McLaughlin Salmi, Deputy
Director of Workforce Policy; Deborah L. Emerson Samantar,
Committee Clerk/Intern Coordinator; Loren Sweatt, Professional
Staff Member; Jody Calemine, Labor Counsel; Michele Evermore,
Legislative Associate/Labor; Tylease Fitzgerald, Legislative
Assistant/Labor; Peter Galvin, Senior Legislative Associate;
Rachel Racusen, Press Assistant; Marsha Renwanz, Legislative
Associate/Labor; and Mark Zuckerman, Minority Staff Director.
Chairman Norwood [presiding]. A quorum being present, the
Subcommittee on Workforce Protections will now come to order.
First, I would like to start by noting that today is ``take
our daughters and sons to work'' day. And I would like to
welcome any students that may be with us today, and note that
this can be an important day to demonstrate the importance of
education and for exposing children to the many future career
opportunities that will be available to them in this country's
workplace.
We are meeting here today to hear testimony on examining
the use of non-consensus standards in workplace health and
safety. If you would, we have some definitions up, and as I
continue, I hope you can see those. They are a little small,
but I hope you can read them.
Under committee rule 12(b), opening statements are limited
to the chairman and the ranking minority member of the
subcommittee. Therefore, if other members have statements, they
may be included in the hearing record.
With that, I ask unanimous consent for the hearing record
to remain open for 14 days to allow member statements and other
extraneous material referenced during the hearing to be
submitted in the official hearing record. Without objection, so
ordered.
Today we are going to take a look at an issue that has been
the focus of previous oversight by this subcommittee. It is an
issue of great interest and, frankly, of great concern to me:
the ongoing practice by the Department of Labor, whereby DOL
incorporates by reference non-consensus standards set by
outside standard-setting organizations in the hazard
communication rule.
Do we have anybody here from DOL? That is real unfortunate.
They will be here next time at the panel, I promise you.
Some of you may recall that the subcommittee held hearings
on this very topic in 2002. I am curious to see if any
improvements have been made since 2002 or if the people are
still facing the problems we heard about in 2002.
At the outset, I would like to note that there are several
lawsuits challenging DOL's so-called ``incorporation''
practice. One such case involves the American Conference of
Government Industrial Hygienists, which was invited, but
declined to testify at today's hearing.
Regardless of the pending lawsuits, I am interested in
hearing how the incorporation-by-reference practice impacts the
regulated community and its overall role in health and safety
regulations at the Department of Labor.
Before we go any further, let me please draw your attention
to the monitors on my right and left, which display the
definition of a national consensus standard under the OSH Act.
According to the statute, that is what Congress likes, the term
``national consensus standard'' means any occupational safety
and health standard or modification thereof which, one, has
been adopted and promulgated by a nationally recognized
standards-producing organization under procedures whereby it
can be determined by the secretary that persons interested and
affected by the scope or provision of the standard have reached
substantial agreement on its adoption. That is No. 1 on a
consensus standard.
No. 2, it was formulated in a manner which afforded for
diverse views to be considered; and three, has been designated
as such a standard by the secretary, after consultation with
other appropriate Federal agencies.
You will note that there is no corresponding definition in
the OSH Act of a non-consensus standard. The OSH Act simply
does not recognize any outside standard that is not consistent
with the principles outlined right here. That is a very
important distinction that is basically at the center of this
debate.
Critics of the incorporation-by-reference practice, several
of whom are witnesses today, maintain that the heart of the
problem exists in standard setting bodies that do not allow for
stakeholder input. By comparison, if DOL were to promulgate
standards within the hazard communication rule, a myriad of
Federal regulations would apply to the promulgation of these
regulations.
To begin with, DOL would have to provide the regulated
community with public notice by way of the Federal Register, so
says Congress. A notice and comment rulemaking would be
required, so says Congress.
DOL would also be required to defend the adoption of any
standard as legal, assure the standard's technical feasibility,
and evaluate the standard's impact on small business, so says
Congress. In some cases, a negotiated rulemaking could be
entered into between DOL, the affected industry, and the
relevant worker representatives. However, none of these
important processes are required when DOL incorporates a non-
consensus standard by reference. This chairman believes that is
illegal and we are going to find out at the end of the day
whether it is or is not.
Now, I want to be clear. My goal here is to ensure
transparency in the rulemaking process. The employees, their
representatives, and the regulated industries have a right to
provide input into the regulatory process, so says Congress.
I also believe that government employees should have access
to professional development. There is nothing wrong with that.
However, I strongly believe that the system governing the
relationship between a government employee and his or her
association with a non-consensus standard-setting organization
must be fundamentally fair and ethically acceptable. We will
get into that during this hearing.
I look forward to hearing from our witnesses today about
how that might be possible, to achieve that, and exploring
other ideas to strengthen the regulatory process regarding
health and safety standards.
It is now my pleasure to yield to the ranking member, my
friend Mr. Owens, for whatever opening statement he wishes to
make.
[The prepared statement of Mr. Norwood follows:]
Prepared Statement of Hon. Charlie Norwood, Chairman, Subcommittee on
Workforce Protections, Committee on Education and the Workforce
Today we are going to take a look at an issue that has been the
focus of previous oversight by this Subcommittee. It is an issue of
great interest and, frankly of continued concern to me--the ongoing
practice by the Department of Labor, whereby DOL incorporates, by
reference, non-consensus standards set by outside standard-setting
organizations in the hazard communication rule.
Some of you may recall that the Subcommittee held hearings on this
very topic in 2002. I am curious to see if any improvements have been
made or if the people are still facing the problems we heard about in
2002.
At the outset, I would like to note that there are several lawsuits
challenging DOL's so-called ``incorporation'' practice. One such case
involves the American Conference of Government Industrial Hygienists
(ACGIH), which was invited--but declined--to testify at today's
hearing.
Regardless of the pending lawsuits, I am interested in hearing how
the incorporation by reference practice impacts the regulated
community, and its overall roll in health and safety regulations at the
Department of Labor.
Before we go any further, let me please draw your attention to the
monitors on my right and left, which display the definition of a
national consensus standard under the OSH Act. According to the
statute:
``The term national consensus standard means any occupational
safety and health standard or modification thereof which (1) has been
adopted and promulgated by a nationally recognized standards-producing
organization under procedures whereby it can be determined by the
Secretary that persons interested and affected by the scope or
provision of the standard have reached substantial agreement on its
adoption, (2) was formulated in a manner which afforded for diverse
views to be considered, and (3) has been designated as such a standard
by the Secretary, after consultation with other appropriate Federal
agencies.''
You will also note that there is no corresponding definition of a
non-consensus standard, because the OSH Act does recognize any outside
standard that is not consistent with the principles outlined above.
That is a very important distinction that is at the center of this
debate.
Critics of the incorporation by reference practice, several of whom
are witnesses today, maintain that the heart of the problem exists in
standard setting bodies that do not allow for stakeholder input. By
comparison, if DOL were to promulgate standards within the hazard
communication rule, a myriad of federal regulations would apply to the
promulgation of those regulations.
To begin with, DOL would have to provide the regulated community
with public notice by way of the Federal Register. A notice and comment
rulemaking would be required.
DOL would also be required to defend the adoption of any standard
as legal, assure the standard's technical feasibility, and evaluate the
standard's impact on small business. In some cases, a negotiated
rulemaking could be entered into between DOL, the affected industry,
and relevant worker representatives.
However, none of these important processes are required when DOL
incorporates a non-consensus standard by reference.
Now I want to be clear; my goal here is to ensure transparency in
the rulemaking process. The employees, their representatives, and the
regulated industries have a right to provide input in the regulatory
process.
I also believe that government employees should have access to
professional development. However, I strongly believe that the system
governing the relationship between a government employee and his/her
association with a non-consensus standard setting organization is
fundamentally fair and ethically acceptable.
I look forward to hearing from our witnesses today about how that
might be possible, and exploring other ideas to strengthen the
regulatory process regarding health and safety standards.
______
Mr. Owens. Thank you, Mr. Chairman.
Tomorrow is Workers Memorial Day. On April 28, we honor the
thousands of American workers killed on the job each year in
such grievous incidents as scaffolding collapses, unprotected
falls, explosions, machinery upheavals, and ditch collapses.
Between 5,000 and 6,000 Americans die each year as a result
of such serious workplace hazards and safety lapses. From New
York to California, we join surviving family members,
coworkers, friends and community residents in mourning their
untimely deaths. Most importantly, we seek accountability to
prevent such wrongful workplace deaths in the future.
This Workers Memorial Day is especially noteworthy given
the way the year started. It began with a massive explosion at
the Sago underground coal mine in Upshur County, West Virginia,
that trapped 13 miners. Cable News Network provided round-the-
clock coverage of delayed rescue attempts and anxious family
members awaiting news of their loved ones.
We all know how that initial story ended, with 12
mineworkers found dead and the sole survivor near death due to
severe oxygen deprivation. The story of repeated and severe
safety violations at Sago mine and dereliction of duty at the
Federal Mine Safety and Health Administration continues to
unfold as the Federal and state investigations continue.
In addition to the 12 coal mineworkers killed at Sago, 14
other coal miners have been killed on the job this year. They
have been killed in mine fires, roof collapses, machinery
failures, and like scenarios. These deaths occurred at mines
other than Sago in West Virginia and elsewhere in Pennsylvania,
Kentucky, Alabama, Maryland and Utah.
In the first 4 months of 2006, 26 coal miners have been
killed on the job, which is more than the number killed in all
of 2005 all together. Coal miner fatalities are soaring and it
is our responsibility, as members sitting on the congressional
subcommittee with jurisdiction over MSHA, to address this
serious crisis.
Mr. Chairman, today's hearing does not focus or even touch
upon the crisis of mineworker deaths. Neither does it address
ways to address pressing worker safety issues under the
jurisdiction of the Occupational Safety and Health
Administration. Two such OSHA issues are unavoidable, given the
front-page attention they are getting in newspapers across the
country. They are also the responsibility of this subcommittee,
given our jurisdiction over OSHA.
First, there is the ever-rising death toll of those first
responders who went to Ground Zero in New York for rescue and
recovery work after the terrorist attacks of 9/11. Earlier this
month, a New Jersey medical examiner cited ``Ground Zero'' as
the cause of death of a detective involved in 9/11 recovery
work. According to the autopsy report of 34-year-old Detective
James Zagroda, there was no other explanation for the presence
of innumerable foreign body granulomas, such as fiberglass, in
his lungs than his work sifting for human remains and evidence
in the Ground Zero rubble.
Congressional oversight is called for here because OSHA
declined at that time to enforce worksite safety standards at
Ground Zero. Although the OSHA Web site declares that no lives
were lost in the Ground Zero cleanup, deaths like Detective
Zagroda's that are directly attributable to Ground Zero toxins
now begin to keep turning up. OSHA's failure to require the use
of appropriate personal protective equipment at Ground Zero
merits immediate congressional investigation.
I request unanimous consent that an article about Detective
Zagroda's death be inserted in the record.
Chairman Norwood. So ordered.
[The information referred to follows:]
[From the Chief Leader Editorial, April 21, 2006]
Need WTC Delayed Death Bill
A New Jersey Medical Examiner's finding that a Detective who was
involved in the recovery efforts at the World Trade Center site died
because of the toxins he was exposed to has intensified the push of
uniformed union leaders for a bill granting line-of-duty death benefits
in such cases.
It should be increasingly clear that such treatment is warranted.
The autopsy by Dr. Gerard Breton of the Ocean County M.E.'s Office
found ``the presence of innumerable foreign body granulomas that are
distributed throughout the lung tissue'' of Det. James Zadroga.
Fiberglass was among the substances discovered in his lungs.
There was no other explanation for finding those materials in the
lungs of a 34-year-old man than his work sifting through the rubble at
the Trade Center site looking for survivors, bodies, and evidence.
The ruling is the first conclusive finding that an emergency worker
was killed as a direct cause of time spent at Ground Zero. There have
been several other deaths, however--involving firefighters and
Emergency Medical Service workers--where exposure to the deadly toxins
at the site was almost certainly the cause.
Governor Pataki last year signed into law a bill that grants job-
related disability pensions to those public employees who were unable
to continue working because of illnesses they contracted--often years
after exposure--from work related to the rescue and recovery efforts at
the Trade Center and other sites where bodies or rubble were
transported.
As the death toll begins to rise, the Legislature and the Governor
must look to do something more for those whose work there winds up
costing them their lives. Detective Zadroga's survivors, including his
4-year-old daughter, Tylerann, are entitled to eight years of
disability pension payments, which are paid at three-quarters of his
final salary. If his case was classified as a line-of-duty death by the
NYPD, the family would be entitled to the equivalent of his final
year's pay until Tylerann was 19, and until 23 if she were a full-time
student for that long.
This could get expensive for the city, since it is clear that some
of these cases take years to manifest themselves. But it and the
state--in other words, we, the public--owe that much to those who put
themselves in harm's way, sometimes not realizing the extent of the
danger because of pronouncements by both Federal and city officials
that the air in the vicinity was of acceptable quality.
Those who pay with their lives should have their families properly
compensated to honor their sacrifice.
______
Mr. Owens. Second is OSHA's failure to enforce appropriate
safety standards at recovery and reconstruction worksites in
the Katrina-affected Gulf Coast area. Again, numerous reports
have surfaced in the press of Gulf Coast workers afflicted with
rashes, lesions, and respiratory distress. The respiratory
symptoms are now so widespread among these workers that doctors
and other medical experts commonly refer to them as a ``Katrina
cough.''
In the aftermath of Hurricanes Katrina and Rita, OSHA's top
political appointee announced the agency would not enforce
workplace safety rules in the Gulf region. So for a
considerable period of time, there was no enforcement of the
OSHA rule on personal protective equipment, requiring employers
to provide all workers with adequate masks, gloves and other
appropriate safeguards.
Now, those unprotected workers exposed to Katrina toxins
are suffering from asthma, respiratory distress and other
illnesses. Again, this merits immediate congressional
oversight.
Mr. Chairman, this morning's hearing flatly ignores the
urgent need for such oversight of dangerously inadequate
enforcement of U.S. safety laws at both MSHA and OSHA. Yet we
are reminded of OSHA's inadequate safety enforcement in a new
GAO report which documents OSHA's failure to conduct
inspections of Federal worksites.
This GAO report further documents OSHA's failure to
establish a national strategy for targeting worksites with
higher rates of injury and illness for inspection. This
subcommittee should call GAO to testify about these failures at
OSHA, as well as recommended solutions.
I ask unanimous consent that an article about the new GAO
report that appeared in yesterday's Washington Post be included
in the record. The report is entitled ``Death on the Job: The
Toll of Neglect.''
Chairman Norwood. So ordered.
[The information referred to follows:]
[From the Washington Post, April 26, 2006]
OSHA Comes Up Short on Workplace, Safety-Program Evaluations, Report
Shows
By Stephen Barr
The Occupational Safety and Health Administration does not perform
many safety inspections at federal workplaces and has not conducted any
agency-wide evaluations of federal safety programs in the last six
years, according to a recently released congressional report.
In addition, OSHA has not turned in a report on federal agency
safety programs to the president since fiscal 2000, even though OSHA is
required by a White House directive and regulations to review the
programs each year, the report by the Government Accountability Office
said.
``OSHA's oversight of federal agencies' safety programs is not as
effective as it could be because the agency does not use its
enforcement and compliance assistance resources in a strategic
manner,'' the GAO report said.
Officials at OSHA acknowledged they have problems with their
enforcement and compliance strategies ``but noted that they have
relatively few staff dedicated to federal agency oversight,'' the
report said. The Labor Department, OSHA's parent agency, generally
agreed with the findings, GAO said.
The GAO report was requested by Sens. Arlen Specter (R-Pa.) and Tom
Harkin (D-Iowa), the chairman and ranking member of the Senate
Appropriations subcommittee that oversees the Labor Department. ``This
GAO report assists in determining what further steps can be taken to
ensure that workers have safe conditions and that violations are
closely monitored,'' Scott Hoeflich, a spokesman for Specter, said.
During the past decade, more than 800 federal employees died from
work-related accidents, with 47 deaths occurring in 2004, the most
recent year that GAO could collect data from federal agency reports.
Although the size of the federal workforce has decreased by 6
percent in the past decade, GAO found that workers' compensation costs
remained fairly constant, about $1.52 billion in 2004, compared with
about $1.54 billion in fiscal 1995, after adjusting for inflation.
Claims involving traumatic injuries decreased slightly, to 74,322
in 2004 from 76,633 in 1995, GAO said. The injuries included sprains
and strains of ligaments, muscles and tendons, sprains and strains of
the back, bruises and cuts, GAO said.
A smaller number of employees filed claims involving non-traumatic
injuries, such as hearing loss and carpal tunnel syndrome, GAO found.
Those claims decreased to 5,903 in 2004 from 8,508 in 1995, GAO said.
Federal agencies are among the nation's largest employers. While
many employees work in low-risk offices, large numbers are employed in
hospitals, prisons, forests, parks and manufacturing.
For the report, GAO collected data from 57 agencies, representing
about 80 percent of the federal workforce. The GAO survey found that
eight agencies did not have procedures to ensure that an injured
employee was seen promptly by a doctor, while 12 agencies did not have
programs offering injured employees light-duty alternatives to help
them return to work more quickly.
The report said 23 agencies did not have computer systems for
collecting information about workplace hazards and whether they were
corrected in a timely manner.
A new rule, which took effect last year, requires agencies to keep
logs of workplace injuries and could be useful in helping OSHA target
inspections in the future, GAO said.
OSHA officials told GAO that they also hope to rely on data being
collected under a 2004 White House initiative. The ``Safety and Health
and Return to Employment'' initiative seeks to reduce federal workers
compensation claims and to get more injured federal employees back to
work.
But GAO said some agency officials see the initiative as ``a paper
exercise,'' and GAO concluded ``the impact of the initiative on
agencies' safety programs is not clear.''
At noon today, Robert M. Tobias, director of public sector
executive education at American University, will be the guest on
Federal Diary Live on washingtonpost.com and will take questions from
federal employees. Stephen Barr may be reached at [email protected].
______
Mr. Owens. That said, I want to also call attention to the
fact that Dr. Frank Mirer, a distinguished witness requested by
members of the minority, is here with us this morning. As
director of health and safety at the United Auto Workers
International Union, Dr. Mirer will address the need for OSHA
to set standards for certain hazardous chemicals now
threatening worker health and safety. I welcome him to this
hearing and look forward to hearing his very relevant
testimony.
In closing, Mr. Chairman, I request that a summary of a new
report by the AFL-CIO commemorating Worker Memorial Day be
included in the record in its entirety. That report is entitled
``Death on the Job: The Toll of Neglect, a National State-by-
State Profile of Worker Safety and Health in the United
States.''
Chairman Norwood. So ordered.*
---------------------------------------------------------------------------
*Submitted and placed in permanent archive file, Death on the Job:
The Toll of Neglect. A National and State-by-State Profile of Worker
Safety and Health in the United States, 15th Edition. April 2006,
http://www.aflcio.org/mediacenter/resources/reports.cfm. (Submitted for
the record by Rep. Owens)
---------------------------------------------------------------------------
Mr. Owens. Thank you.
[The prepared statement of Mr. Owens follows:]
Prepared Statement of Hon. Major R. Owens, Ranking Minority Member,
Subcommittee on Workforce Protections, Committee on Education and the
Workforce
Mr. Chairman, tomorrow is Workers Memorial Day. On April 28th, we
honor the thousands of American workers killed on-the-job each year in
such grievous incidents as scaffolding collapses, unprotected falls,
explosions, machinery upheavals, and ditch collapses. Between 5000-6000
Americans die each year as a result of such serious workplace hazards
and safety lapses. From New York to California, we join surviving
family members, co-workers, friends and community residents in mourning
their untimely deaths. Most importantly, we seek accountability to
prevent such wrongful workplace deaths in the future.
This Workers Memorial Day is especially noteworthy given the way
the year started. It began with a massive explosion at the Sago
underground coal mine in Upshur County, West Virginia that trapped 13
miners. Cable News Network (CNN) provided round-the-clock coverage of
delayed rescue attempts and anxious family members awaiting news of
their loved ones. We all know how that initial story ended--with 12
mineworkers found dead and the sole survivor near death due to severe
oxygen deprivation. The story of repeated and severe safety violations
at Sago mine and dereliction of duty at the federal Mine Safety and
Health Administration (MSHA) continues to unfold as the federal and
state investigations continue.
In addition to the 12 coal mineworkers killed at Sago, 14 other
coal mineworkers have been killed on-the-job this year. They have been
killed in mine fires, roof collapses, machinery failures, and like
scenarios. These deaths occurred at mines other than Sago in West
Virginia, and elsewhere in Pennsylvania, Kentucky, Alabama, Maryland
and Utah. In the first 4 months of 2006, 26 coal mineworkers have been
killed on the job, which is more than the total number killed in all of
2005. [Last year, a total of 22 coal miners were killed on the job.]
Coal miner fatalities are soaring and it is our responsibility, as
Members sitting on the Congressional Subcommittee with jurisdiction
over MSHA, to address this crisis.
Mr. Chairman, today's hearing does not focus or even touch upon the
crisis of mineworker deaths. Neither does it address ways to address
pressing worker safety issues under the jurisdiction of the
Occupational Safety and Health Administration (OSHA). Two such OSHA
issues are unavoidable, given the front-page attention they are getting
in newspapers across the country.
They are also the responsibility of this Subcommittee, given our
jurisdiction over OSHA.
First is the ever-rising death toll of those first responders who
went to Ground Zero for rescue and recovery work after the terrorist
attacks of 9/11. Earlier this month, a New Jersey Medical Examiner
cited ``Ground Zero'' as the cause of death of a detective involved in
9/11 recovery work. According to the autopsy report of 34 year old
Detective James Zadroga, there was no other explanation for the
``presence of innumerable foreign body granulomas'' such as fiberglass
in his lungs than his work sifting for human remains and evidence in
the ``Ground Zero'' rubble.
Congressional oversight is called for here because OSHA declined to
enforce worksite safety standards at Ground Zero. Although the OSHA
website declares that ``no lives were lost in the Ground Zero clean-
up,'' deaths like Detective Zagroda's that are directly attributable to
Ground Zero toxins keep mounting. OSHA's failure to require the use of
appropriate personal protective equipment at Ground Zero merits
immediate Congressional investigation. I request unanimous consent that
an article about Detective Zagroda's death be inserted in the Record.
Second is OSHA's failure to enforce appropriate safety standards at
recovery and reconstruction work-sites in the Katrina-affected gulf
coast. Again, numerous reports have surfaced in the press of Gulf coast
workers afflicted with rashes, lesions, and respiratory distress. The
respiratory symptoms are now so widespread among these workers that
doctors and other medical experts commonly refer to them as a ``Katrina
cough.'' In the aftermath of Hurricanes Katrina and Rita, OSHA's top
political appointee announced the agency would not enforce workplace
safety rules in the Gulf region. So for a considerable period of time,
there was no enforcement of the OSHA rule on personal protective
equipment (PPE), requiring employers to provide all workers with
adequate masks, gloves and other appropriate safeguards. Now, those
unprotected workers exposed to Katrina toxins are suffering from
asthma, respiratory distress and other illnesses. Again, this merits
immediate Congressional oversight.
Mr. Chairman, this morning's hearing flatly ignores the urgent need
for Congressional oversight of dangerously inadequate enforcement of
U.S. safety laws at both MSHA and OSHA.
Yet we are reminded of OSHA's inadequate safety enforcement in a
new GAO report which documents OSHA's failure to conduct inspections of
federal worksites. This GAO report further documents OSHA's failure to
establish a ``national strategy for targeting worksites with high rates
of injury and illness for inspection.'' This Subcommittee should call
GAO to testify about these failures at OSHA and well as recommended
solutions. I ask unanimous consent that an article about the new GAO
report that appeared in yesterday's Washington Post be included in the
Record.
That said, Dr. Frank Mirer, a distinguished witness requested by
Members on this side of the aisle, is here with us this morning. As
Director of Health and Safety at the United Auto Workers International
Union (UAW), Dr. Mirer will address the need for OSHA to set standards
for certain hazardous chemicals now threatening worker health and
safety. I welcome him to this hearing and look forward to hearing his
testimony.
In closing, Mr. Chairman, I request that a summary of a new report
by the AFL-CIO commemorating Worker Memorial Day be included in the
Record in its entirety.
______
Chairman Norwood. Before we begin, I would like to make
note that the Labor Department has arrived. Steve Silbiger is
here.
Mr. Silbiger, you better pay attention to this hearing and
take a lot of notes. Is anybody else here from the Labor
Department? If they are, please be recognized. I say to you,
take notes. You are next.
We have a panel of distinguished witnesses today. Frankly,
I am very eager to hear their testimony, but I would like to
yield to my vice chairman, Judy Biggert, to introduce our first
witness.
Mrs. Biggert. Thank you, Mr. Chairman.
It is my pleasure this morning to introduce Elizabeth
Marcucci. Ms. Marcucci is the corporate safety director at
Gonnella Baking Company, which has a number of facilities in
the Chicago area, including one just outside my district in
Aurora, and of course their bread is in all the stores in my
area.
Ms. Marcucci holds a bachelor's degree from St. Joseph
College in Indiana. She has been working for Gonnella Baking
Company for the last 17 years. Over this period, she has saved
the company millions of dollars in worker compensation costs
and received various awards for her loss prevention measures.
In 2003, she won the National Safety Council's
Distinguished Service to Safety Award, which is the highest
honor bestowed on any individual by the council, in recognition
for outstanding service in the field of safety.
She is a member of NCS and also the American Bakers
Association, on whose behalf she is testifying today. She
serves on the safety committee of that organization and the
Greater Chicago Safety Council.
She is also a certified defensive driving instructor, a CPR
first-aid instructor, and an 8-hour incident responder for
hazardous material spills, and a 40-hour incident commander for
hazardous materials. She keeps herself pretty busy.
So I appreciate her willingness to attend today's hearing
and provide her insight into workplace safety.
I look forward to hearing your testimony.
I yield back. Thank you, Mr. Chairman.
Chairman Norwood. Ms. Marcucci, welcome. We are glad you
are here. This is easy as pie. I am going to introduce
everybody else, and then we will come back to you. You are a
hazardous driving instructor? I have a staff member named
``Crash'' that might need some of your guidance. We will talk
after this hearing is over with.
[Laughter.]
I would like to now recognize Mr. Jim Ruddell, who is the
director of environment and safety for Franklin Industrial
Minerals. He holds a master's degree in soil science and a
bachelor's degree in forest science. Franklin Industrial
Minerals has been in operation since 1910 and operates various
types of mining facilities in Tennessee, Georgia, Alabama,
Florida and Texas. Their operations produce over 5 million tons
of minerals annually.
Mr. Ruddell, you are most welcome.
Next is Dr. Frank Mirer, who is the director of the health
and safety department, International Union for the United Auto
Workers. Dr. Mirer heads the technical coordination unit for
safety policies for UAW. He represents the union before
administrative agencies regarding occupational safety and
health research. Dr. Mirer holds a Ph.D. in organic chemistry
from Harvard University and is a certified industrial
hygienist. This witness has been invited by the minority
members of the subcommittee.
Anyway, we are very glad you are here.
[Laughter.]
Dr. Mirer. I was going to find out whether that----
Chairman Norwood. You don't want to hear the rest of it.
Dr. Mirer. I want to hear that.
[Laughter.]
Chairman Norwood. Mr. Henry Chajet is a partner at Patton
Boggs. Mr. Chajet counsels and represents clients in
environmental health and safety matters, focusing on crisis
management, dispute resolution, trial and appellate litigation,
standard setting, and liability prevention, and regulatory and
congressional proceedings.
He defends investigations and enforcement actions by OSHA,
MSHA, EPA, DOT, NTSB, NIOSH and other Federal and state
agencies, as well as in related tort claims in criminal cases.
Mr. Chajet represents plaintiff businesses who have sued the
Department of Labor, claiming it is improperly relying on ACGIH
in its standard-setting. He holds a degree from Case Western
Reserve Law School and University.
I would like to remind all the members that we will be
asking questions of the witnesses after their testimony. In
addition, rule 2 imposes a 5-minute limit on all questions.
With that, can I call you Elizabeth?
Ms. Marcucci. That is fine.
Chairman Norwood. Elizabeth, you are up.
STATEMENT OF ELIZABETH MARCUCCI, SAFETY DIRECTOR, GONNELLA
BAKING COMPANY
Ms. Marcucci. Good morning.
Thank you, Congresswoman Biggert, for your kind remarks.
Mr. Chairman, distinguished members of the subcommittee,
thank you for the invitation to address this hearing. My name
is Liz Marcucci, and I am the corporate safety director for
Gonnella Baking Company in Chicago, Illinois. I also chair the
American Bakers Association's safety committee and am
testifying on behalf of the ABA.
ABA is the trade association that represents the nation's
wholesale baking industry. Gonnella is a family owned bakery
operation with three facilities in the greater Chicago land
area, with approximately 350 employees. Our facilities make a
variety of high-quality fresh and frozen bakery goods,
including hand-crafted artisan breads and rolls. Gonnella is
the proud hot-dog supplier of the world champion Chicago White
Sox, Chicago Cubs and Chicago Bulls.
I started out as assistant safety director with Gonnella in
1984, and now my responsibilities include the management of all
company safety and health programs, including regulatory
accountability and workers compensation. In addition to ABA, I
serve in several leadership capacities with the National Safety
Council. The NSC honored me and the employees of Gonnella
Baking Company with the distinguished service to safety award.
I am a safety advocate for all of our employees and their
families. In a family business, this takes on added
significance. Safety is our company's first priority in all
decisions, from the president to our highly trained and valued
employees. The baking industry is concerned with one so-called
consensus organization, the American Conference of Governmental
Industrial Hygienists, ACGIH. ACGIH's threshold limit values,
TLVs, are used by OSHA for permissible exposure limits, PELs,
and could be used by OSHA for so-called ``general duty clause''
violations.
In addition, the 23-state OSHA plans rely heavily upon the
TLVs. These states need to have confidence in the procedures
and results of the consensus standard-setting organizations
upon which they rely. ABA learned that ACGIH issues TLVs of
questionable scientific basis. Making matters worse in the
development of a TLV, it is done with no public input.
During its development of a TLV on flour dust, ABA was
unable to get any information on the development of the TLV. My
written statement covers these issues in greater detail.
We were concerned because the TLV was 30 times lower than
the OSHA nuisance limit and two times lower than the OSHA
exposure limit for hazardous substances. The TLV relies on a
controversial method different from the monitoring commonly
used in the management and enforcement of respiratory
exposures.
ABA contracted with Sandler Occupational Medicine
Associates, SOMA, to conduct an analysis of ACGIH's
justification for the TLV. They found that the TLV is based on
``very limited, indefinite and unconfirmed information and is
not substantiated.'' SOMA also found that ``the scientific
evidence does not provide a basis for control of exposure at
specific thresholds, particularly exposure to flour dust, for
purposes of preventing or limiting flour allergens
sensitization and other work-related effects.''
At the November 2001 subcommittee hearing, ABA articulated
that TLVs come with some real consequences. ABA pointed out how
a baking company in Kentucky was cited with a serious violation
of the general duty clause and respiratory protection standards
for failure to meet the TLV standard. The citation was
withdrawn only when the company presented the SOMA study as a
counterpoint to ACGIH's flawed analysis.
Kentucky OSHA in its review of the science came to the same
conclusion as the baking industry, that the TLV is not based on
sound science. During the citation investigation, it was
revealed that Kentucky OSHA adopted the ACGIH TLV in the
mistaken belief that it was developed in cooperation with the
baking industry. This came as a great shock to the ABA.
Kentucky OSHA should not have to explain why the cited company
based on an ACGIH TLV unwittingly thought it to be valid.
The Kentucky OSHA citation should have required the
immediate abatement of employees' exposure to flour dust above
the ACGIH TLV with new ventilation systems and a full-face mask
for respiratory protection. Few baking companies could meet the
excessive engineering and respiratory requirements that would
be required under this flawed TLV.
Unfortunately, the recent activities of California
Occupational Safety and Health Standards Board tell a more
disturbing story. At the end of 2004, with little notice and
fanfare, California adopted a number of ACGIH's new TLVs,
including flour dust as its own permissible exposure limits.
Last year, ABA petitioned the California Occupational Safety
and Health Standards Board, asking that the new TLV for flour
dust be rescinded, submitting the SOMA study as supporting
documentation.
In January, the board summarily rejected ABA's petition in
language eerily similar to ACGIH's dismissal several years ago.
Thankfully, however, California bakers have not been subjected
to enforcement action.
OSHA needs to be extremely careful in what type of
information it relies upon for regulations and enforcement.
While one can argue with specifics about NFPA or ANSI
standards, at least the affected parties have a seat at the
table. These are true consensus organizations. This is the
proper and transparent way to ensure an outcome in which
everyone can have confidence.
We urge Congress to insist that OSHA utilize true consensus
standards that meet minimum requirements for openness and
participation. ABA also urges Congress to require OSHA to
utilize scientific data and economic impact analysis that has
been independently peer-reviewed. The OSH Act pertaining to the
proper use of consensus standards should be enforced or
strengthened to prohibit the use of ACGIH and similar
unsubstantiated standards.
We urge Congress to insist that OSHA avoid using ACGIH's
TLVs as the basis for regulations and enforcement proceedings.
OSHA should instruct the state OSHA plans to also refrain from
utilizing TLVs. OSHA should be more diligent in utilizing its
review and approval authority over state-plan states to ensure
that only true consensus standards be utilized.
Congress and OSHA should not just take ACGIH's word when it
claims that ``regulatory bodies should view TLVs as an
expression of scientific opinion.'' Congress should clearly
communicate to Federal and state regulatory agencies that ACGIH
itself does not believe its standards ``should be adopted as
standards without an analysis of other factors necessary to
make appropriate risk management decisions.''
We applaud the chairman for his steadfast common sense
leadership on this important issue. We encourage the
subcommittee to aggressively move to correct these problems.
Many companies are at risk of significant penalties and
unnecessary abatement procedures based on ACGIH's scientific
opinion, and not on facts.
Again, Mr. Chairman and members of the subcommittee, I
greatly appreciate this opportunity to present the views of the
baking industry, and would be happy to answer any questions.
[The prepared statement of Ms. Marcucci follows:]
Prepared Statement of Elizabeth Marcucci, Safety Director, Gonnella
Baking Co., on Behalf of the American Bakers Association
I. Introduction and Summary
The American Bakers Association (ABA) thanks the House Subcommittee
on Workforce Protections, and especially Chairman Charles Norwood, for
holding this critically important hearing on Examining the Use of Non-
Consensus Standards in Workplace Health and Safety. ABA greatly
appreciates the opportunity to present its views again to the
Subcommittee.
By way of background, the ABA is the trade association that
represents the nation's wholesale baking industry. Its membership
consists of more than 200 wholesale bakery and allied services firms.
These firms comprise companies of all sizes, ranging from family-owned
enterprises to companies affiliated with Fortune 500 corporations.
Together, these companies produce approximately 80 percent of the
nation's baked goods. The members of the ABA collectively employ tens
of thousands of employees nationwide in their production, sales and
distribution operations. The ABA, therefore, serves as the principal
voice of the American wholesale bakery industry.
The ABA and its member companies long have devoted substantial
efforts to enhance workplace safety and health programs in the industry
in general, and to share expertise for the benefit of injury and
illness prevention activities at individual facilities. Towards these
ends, ABA's Safety Committee--comprised of corporate safety directors
at ABA-member companies of various sizes--has routinely focused on the
impact of OSHA compliance obligations on company operations, as well as
other pro-active measures that reduce illnesses and injuries in bakery
production and distribution activities. As a result, many wholesale
baking operations have improved their safety and health performance in
recent years. For a number of industry facilities, these improvements
have been reflected in the rates of injuries and illnesses that are
recorded on OSHA logs, as well as their workers compensation cost
experience, which reflect both the frequency and severity of
compensable work-related injuries and illnesses. The ABA, through the
active participation of its Safety Committee, also has participated in
numerous consensus standard setting proceedings over the years--
including the American National Standards Institute, the National Fire
Protection Association, and the Baking Industry Sanitation Standards
Committee. The comments that follow largely are based on the
observations and experience of the corporate safety directors who are
active members of the ABA's Safety Committee.
My name is Liz Marcucci and I am the Corporate Safety Director for
Gonnella Baking Company based in Chicago, Illinois. I am also Chair of
the American Bakers Association Safety Committee. I am pleased to be
testifying today on behalf of the ABA. Gonnella is a moderately sized
family owned company operating 3 bakery facilities in the greater
Chicago land area. Gonnella Baking Company employs approximately 350
employees. Our facilities make a variety of high quality bakery goods
including handcrafted Artisan breads, bagels, rolls croissants and
sweet goods. Many of these products are used throughout the country by
retail and food service companies. Gonnella also is proud to be the hot
dog bun supplier for the World Champion Chicago White Sox, Chicago
Cubs, Milwaukee Brewers and the Chicago Bulls.
My responsibilities at Gonnella include the management of all
company safety and health programs and initiatives, including
regulatory accountability and workers compensation. I like most of the
family, started working with Gonnella when I was 15 years old. As with
most family owned companies, I have done just about everything at least
once from packaging bread to sweeping floors. I began my safety career
with the company in 1984 as the Assistant Safety Director.
Since that time, with Gonnella's support and encouragement, I
assumed leadership roles in not only the ABA but the National Safety
Council as well. I serve on both the Food and Beverage Section and the
Business & Industry Executive Committees for the National Safety
Council. In 2001 the National Safety Council paid me and the employees
at Gonnella a tremendous honor with the Distinguished Service to Safety
Award.
In my role as Corporate Safety Director for Gonnella, I work very
closely with both facility leadership and production employees to help
ensure our company is a safe and healthy place to work for all. As a
family business this takes on added significance and I consider myself
an advocate for all of our employees and their families in the ongoing
business of maintaining a safe work environment. Gonnella is strongly
committed to providing a safe and healthy workplace to our highly
trained and valued employees. Safety is our company's first priority in
all decisions, from the President to the production floor. This front
line commitment to safety at all levels of our organization has helped
us maintain superior performance when it comes to preventing the
occurrence of significant injuries and illnesses in our facilities.
In the past several years, the wholesale baking industry has become
acutely concerned about one so-called consensus organization--the
American Conference of Governmental Industrial Hygienists (ACGIH).
ACGIH develops Threshold Limit Values (TLVs) on a variety of
potentially harmful substances in the workplace. While ACGIH's TLVs are
technically considered to be exposure guidelines and not have the
weight of law, they are frequently used by OSHA as a foundation for
Permissible Exposure Limits (PELs) and could be used by OSHA for so-
called ``general duty clause'', Section 5(a)(1) violations. Of greater
concern is the reliance by reference to the TLVs in OSHA's Hazard
Communication Standard.
In addition, the 23 states that have adopted their own safety and
health programs in lieu of the federal OSHA program rely heavily upon
the TLVs that ACGIH develops. These states have a charter obligation to
provide safety and health protection equal to or greater than the
federal program. These states need to have confidence in the procedures
and end results of the consensus standard setting organizations upon
which they rely for guidance in developing their own standards and
enforcement proceedings. In the case of ACGIH, the experience of the
ABA has found them woefully lacking.
II. ACGIH Threshold Limit Value on Floor Dust
In 1999, the ACGIH began the process of developing for the first
time a threshold limit value for flour dust. The laudable goal of the
proposed ACGIH TLV for flour dust was to eliminate flour dust as a
possible sensitizing agent that could contribute to asthmatic
conditions in baking industry employees.
ACGIH announced that it was looking at establishing a level of .5
milligrams per cubic meter (mg/m3) of inhalable dust. By way of
comparison, the current ACGIH TLV for grain dust is 4 mg/m3 and the
OSHA PEL for grain dust is 10 mg/m3 as an 8 hour Time Weighted Average
(TWA). This is the standard as it applies to grain silos, grain mills
and related industries. OSHA's current PEL for nuisance dust, of which
flour dust is considered, is 15 mg/m3.
ACGIH's newly proposed exposure standard to flour dust, which is a
primary ingredient of the baking process, is a significant change from
what had previously been administered by OSHA, the industry, or any
other consensus standard setting organization--including ACGIH. The new
exposure standard recommended by ACGIH was 30 times lower than what was
regulated by OSHA for total dust exposure and twice the exposure limit
enforced by OSHA for exposure to substances that would be commonly
considered a more substantial respiratory hazard, such as copper dust.
The new exposure recommendation presented by ACGIH was also based on an
exposure monitoring methodology different from the total dust or
respirable dust monitoring commonly used in the management and
enforcement of respiratory exposures. The validity of this monitoring
methodology is a subject of great debate within the industrial hygiene
community.
ABA and its Safety Committee were obviously concerned that there
might be new evidence showing that employees in the baking industry
were being exposed to conditions that could lead to serious adverse
health conditions. ABA attempted to contact ACGIH for a better
understanding of the science supporting their proposal and what
opportunities there were to open a dialogue to discuss this important
issue. ABA was informed that ACGIH does not provide affected industries
with an opportunity to discuss TLVs under consideration or have a voice
in their development. At best, ACGIH will occasionally allow a
representative of an industry to address their organization.
Particularly disturbing is that all attempts to find out any
information--even a list of members of the Chemical Substances
Committee--were ignored. Repeated phone calls, emails and
correspondence were not acknowledged during the entire time that the
ACGIH imposed ``decision clock'' was ticking. It became very clear that
the ABA and the North American Millers Association (NAMA) were going to
have to take serious steps to be heard in the process.
In the spring of 2000, our organizations and the Canadian National
Millers Association contracted with Sandler Occupational Medicine
Associates (SOMA) to conduct a literature review of the documentation
ACGIH was relying upon to determine whether to issue a TLV. In
addition, we asked SOMA to determine if there was additional research
material that could be helpful in determining whether a health risk
existed.
The findings of the SOMA review were clear and startling: the
scientific evidence does not support the ACGIH TLV. In fact, the SOMA
study concludes:
``Research in this area as reported by many independent studies has
found that sensitization to flour dust does not account for a majority
of reported symptoms in flour workers. This is based on the absence of
evidence of flour sensitization in most symptomatic workers. Research
findings support the conclusion that symptoms in flour workers are
primarily non-allergic and that flour dust primarily acts as a non-
specific irritant rather than as a sensitizer or allergy-causing
substance.''
``Published data pertaining to exposure thresholds for flour-
related effects, including sensitization and irritant effects are very
limited. Furthermore, the data that serves as the basis for the TLV-TWA
for flour sensitization were not intended to be definitive for
identifying exposure thresholds and do not provide confirmation of the
appropriateness of the TLV-TWA.''
``In conclusion, the TLV-TWA provided in the ACGIH document is
based upon very limited, indefinite and unconfirmed information and is
not substantiated by the accumulated scientific evidence regarding
flour dust exposure. From a scientific and occupational medical
perspective it is surprising that a TLV-TWA would be developed based
upon such limited data. The scientific evidence does not provide a
basis for control of exposure at specific thresholds, particularly
exposure to flour dust for purposes of preventing or limiting flour
allergen sensitization and other work-related effects. The * * *
accumulated research does not provide scientifically-based,
appropriately-derived support in the areas relevant to exposure
threshold determination as provided in the ACGIH document.''
ABA, NAMA and CNMA submitted the SOMA study to the ACGIH Chemical
Substances/Threshold Limit Value Committee for their review with a
request that the ACGIH should withdraw the proposed TLV on flour dust.
After six months of wrangling with ACGIH, we received a summary
dismissal of our request that the TLV be withdrawn. Ironically, ACGIH
failed to address the very serious issues raised in our letter and in
the SOMA study--they merely stated that ``ACGIH received no substantive
comments on the proposal during the year it was on the NIC. ACGIH
believes that the Documentation for the flour dust TLV and the research
cited therein adequately support the TLV.''
It was not until your leadership, Mr. Chairman, at the hearing in
November of 2001 to investigate the reliance upon ACGIH's
unsubstantiated reviews that ACGIH finally agreed to meet with the
baking and milling industries. Only after you skillfully pointed out
the fact that ACGIH itself recognizes that it is not a consensus
organization and does not follow any of the elements of consensus
organizations did they agree to at least meet. Unfortunately, the
meeting was completely without merit and as the other witnesses have
stated not much has changed.
All of this is not intended to air our dirty laundry as it were,
but merely to point out that a so-called ``consensus organization'' is
conducting its scientific evaluations and decision making completely in
private, with no outside input or oversight, and thus no confidence in
the final work product. It is no wonder that ACGIH has found itself
battling numerous lawsuits and may continue to face legal action. Their
work product--at least in the case of flour dust--is unsubstantiated,
unreliable, and completely secretive.
III. Basis for Regulation and Enforcement
As I stated earlier, OSHA and the state OSHA plans rely upon the
ACGIH TLVs as a basis for regulations and enforcement activities. It is
for these reasons that ACGIH's processes should be open and responsive
to the public and should instill the highest level of confidence by
both regulators and the regulated community.
At the November 2001 hearing, Travis Nichol with Bakery Chef in
Louisville, Kentucky articulated, these TLVs come with real
consequences. Mr. Nichol, testifying on behalf of ABA, pointed out how
his company was cited with a serious violation of the General Duty
Clause and Respiratory Protection Standards for failure to meet the TLV
standard. The citation was only withdrawn when his company presented
the SOMA study as a counterpoint to ACGIH's flawed analysis and
Kentucky OSHA in its review of the scientific foundation came to the
same conclusion of the baking industry--that it is based on bad
science.
During the citation investigation and follow up it was revealed
that Kentucky OSHA had adopted the ACGIH TLV as a consensus standard on
the belief that it was developed by a reputable resource in cooperation
with the wholesale baking industry. As you can imagine, this came as a
great shock to the ABA and those industry safety professionals that
have serious reservations regarding this new TLV.
The citation originally presented by Kentucky OSHA would have
required that the company take immediate steps to abate employees'
exposure to flour dust above the ACGIH TLV. This would have resulted in
employees, who previously had not been required to wear respiratory
protection under OSHA exposure standards, to start wearing full face
mask respirators like those worn by the Hazardous Materials workers.
This would present an extraordinary leap in hazard management for
bakery facilities of any size. It is likely that few employers in the
baking industry could ever meet the excessive engineering and
respiratory requirements that would be required under this flawed TLV.
It appears that this is due to the fact that the ACGIH TLV simply
is not a ``consensus'' standard for our industry. Our industry manages
employee safety based on sound science and facts, which have been
thoroughly peer reviewed in an open and democratic manner with our
government. Kentucky OSHA should not have been put in the position of
explaining why they cited a company based on an ACGIH TLV it
unwittingly thought to be valid. It should have confidence, without
going thorough a review of the recommendation with the industry or
other experts directly involved with the issue, that the TLV is valid,
supported and proper.
Unfortunately, the recent activities by California's Occupational
Safety and Health Standards Board tell a more disturbing story. At the
end of 2004, with little notice and fanfare, California adopted a
number of ACGIH's new TLVs, including flour dust, as it's own
permissible exposure limits. Last year, ABA petitioned the California
Occupational Safety and Health Standards Board asking for the new TLV
for flour dust to be rescinded, submitting the SOMA study as supporting
documentation for our request. In January, the Board summarily rejected
ABA's petition in language eerily similar to ACGIH's dismissal several
years ago. Thus far, however, California bakers have not been subjected
to enforcement action.
One final point to bring to the Subcommittee's attention is that on
many occasions, the ACGIH's TLVs are used in workers compensation
proceedings. Each state sets its own standards as to what type of
evidence can be admitted into a determination of work-related injury or
illness. Many states again rely upon the TLVs with the belief that they
are above question. As we have spelled out, in the case of the flour
dust TLV, the evidence and process is clearly in question. Clearly, for
a state workers compensation board to rely upon consensus standards in
making important determinations involving compensation for work related
injury or illness, they must be based on a solid foundation.
IV. Recommendations
Clearly OSHA and the state OSHA plans need to be extremely careful
regarding the type of information upon which they rely upon for
regulations and enforcement. While one can argue specific points about
NFPA or ANSI standards, at least the affected parties have ample
opportunity to find out the details of the substance, abatement methods
and also how the standard-setting process works. In all cases, those
directly impacted have a seat at the table. They also have charter
requirements that all issues raised during public comments need to be
resolved by the issuing Committee. This is the only way to ensure an
outcome in which everyone can have confidence.
In the case of ANSI, ABA works closely with its industry partners,
the equipment manufacturers of BEMA and the educational arm at the
American Institute of Baking to review the voluntary consensus standard
pertaining to bakery equipment, Z-50. As an industry utilizing ovens
and flour silos with potential explosion hazards, we work closely with
the NFPA on its consensus standards. Again, everyone has a seat at the
table and a voice in the development process. Local, state and federal
agencies that look to these organizations for assistance and guidance
have confidence in the procedures and work product of these
organizations.
We strongly urge Congress to insist that OSHA utilize only data and
true consensus standards that meet minimum requirements for openness
and participation. In addition, we urge Congress to add further
confidence in the regulatory process by requiring OSHA to utilize
scientific data and economic impact analysis that has been
independently peer-reviewed. At the very least, language in the
Occupational Safety and Health Act pertaining to the proper use of
consensus standards should be enforced or strengthened to prohibit the
use of ACGIH and similar unsubstantiated standards.
We also urge Congress in the strongest way possible to insist that
OSHA avoid using ACGIH's TLVs as the basis for regulations and
enforcement proceedings. OSHA also should instruct the state OSHA plans
that--given numerous controversies involving ACGIH standards--states
also should refrain from utilizing the TLVs. OSHA also should be more
diligent in utilizing its review and approval authority over state plan
states to ensure that only true consensus standards be utilized for
enforcement and standard setting.
While we are loath to have the federal government impact the
states' ability to conduct workers compensation programs as they see
fit, ABA recommends that OSHA clearly communicate to state workers
compensation administrators that the ACGIH TLV process and product have
come under question. Until such time that ACGIH conducts itself in an
open and fair manner that ensures confidence in its work product, it
should not be the basis for any local, state or federal regulatory or
enforcement proceeding.
Finally, while OSHA should continue to encourage its employees to
participate in consensus standard setting organizations that meet basic
open meetings and disclosure requirements, it should require them to
push those organizations such as ACGIH that do not into changing their
policies, or--alternatively--such agencies should withdraw the
participation of their employees. Only then will the public be served
in a way in which it can be confident of the results.
Our greatest fear is that government agencies will continue down
this dangerous path of unwittingly adopting recommendations of so-
called ``consensus'' organizations without first thoroughly examining
the background of each issue. My hope is that we can count on our
government to ensure democracy in the rules and standard setting
process, due to the broad impact of those guidelines in multiple
settings.
Congress and OSHA should not just take ACGIH at its word when it
claims that its standards are for informational purposes and that
``regulatory bodies should view TLVs and BEIs as an expression of
scientific opinion.'' In addition to clearly communicating to federal
and state regulatory agencies that ACGIH does not believe its
standards, ``should be adopted as standards without an analysis of
other factors necessary to make appropriate risk management
decisions'', Congress should ensure that OSHA and states do not rely on
``scientific opinion'' as the basis for standards and enforcement..
We applaud the Chairman for his steadfast leadership and
commonsense approach on this important issue. We encourage the
Subcommittee to move aggressively to correct the problems in the
Occupational Safety and Health Act pertaining to non-consensus
standards. Many companies are at risk of significant penalties and
abatement procedures based on ACGIH's ``scientific opinion'' and not on
facts. Thank you again for the opportunity to address this important
issue.
______
Chairman Norwood. Thank you very much, Liz.
I failed to mention prior to starting that you have a red,
yellow, green light in front of you. I am going to be very
generous for everybody today with time, but when that red comes
on, begin to think about it might be time to close it down so
we can get to the questions.
I would like to ask staff to put back up on the monitors
the definition of ``consensus standards'' so our Labor
Department people that are here can read them and write them
down and memorize them.
With that, Mr. Ruddell, you are certainly recognized.
STATEMENT OF JAMES RUDDELL, DIRECTOR OF ENVIRONMENT AND SAFETY,
FRANKLIN INDUSTRIAL MINERALS
Mr. Ruddell. Mr. Chairman, members of the subcommittee, my
name is Jim Ruddell. I am director of environment and safety
for Franklin Industrial Minerals. We are a crushed limestone
operation with over 400 employees, with operations in Georgia,
Tennessee, Texas and Florida.
Thank you for the opportunity to appear before the
subcommittee and testify on behalf of the National Sand, Stone
and Gravel Association regarding ACGIH. Our concern is about
the process by which it establishes threshold limit values or
TLVs, that become de facto regulations by incorporation into
regulatory standards developed by OSHA and MSHA.
NSSGA is the world's largest mining association by product
volume. Its member companies represent more than 90 percent of
the crushed stone and 70 percent of the sand and gravel
produced annually in the U.S. Approximately 117,000 men and
women work in the aggregate industry. During 2005, a total of
3.2 billion tons of crushed stone, sand and gravel valued at
$17.4 billion were produced and sold in the United States.
There are two important points I would like to leave with
you today. One is that while ACGIH has a history of providing
high-quality and useful information concerning health effects
on chemical substances, it is not a consensus standard
organization. The process by which it develops guidance
information, including the threshold limit values of chemical
substances, does not involve the wider audience or operate in
the sunshine like other recognized consensus standard
organizations.
The second is the wide acceptance and incorporation by OSHA
and MSHA of the ACGIH TLVs into the standards and regulations
as if they were established by a consensus standard
organization. In the case of the TLVs, whenever there is a new
TLV adopted, it automatically changes the requirements under
OSHA and MSHA. As a result, Federal standards are changed,
bypassing the regulatory process where input can be provided.
An important consideration is that many ACGIH members work
for regulatory agencies such as MSHA and OSHA, the very same
ones that write the regulations. Even though ACGIH has in place
a conflict of interest requirement that all members of the TLV
committee must sign, it may not be possible to differentiate
between work at ACGIH and work for their employer.
There are two recent examples of decision that affect the
members of NSSGA. In one case, ACGIH published a notice of
intent to change the existing TLV for calcium carbonate. ACGIH
proposed reducing calcium carbonate by 90 percent based on a
single German study of 32 individuals suggesting that the
current level should be lowered because there is some evidence
of nasal irritation. Calcium carbonate is an innocuous
substance that is the main ingredient in Tums.
A second example involves crystal and silica. A proposed
standard went through the TLV committee and was reduced by 50
percent. This reduction occurred while controversy continues
about the quality of the scientific data supporting health
effects and measurement methods of crystal and silica.
The salient issue is that these TLVs are incorporated by
reference in the OSHA and MSHA hazard communication standards.
This standard requires that every time there is a change in
relevant information, we must revise our material safety data
sheets. Further, we must retrain our employees. This also
causes concern and anxiety of the general public who use these
basic materials every day and view the MSDS as government-
sanctioned public security warning systems.
NSSGA understands the legislation is being developed to
encourage development and promulgation of voluntary consensus
standards. NSSGA supports the use of voluntary consensus
standards.
Mr. Chairman, that concludes my statement, and again thank
you for the opportunity today.
[The prepared statement of Mr. Ruddell follows:]
Prepared Statement of James Ruddell, Director of Environment and
Safety, Franklin Industrial Minerals, on Behalf of the National Stone,
Sand and Gravel Association
Mr. Chairman and Members of the Subcommittee: Thank you for the
opportunity to appear before the Subcommittee today to testify on
behalf of the National Stone, Sand & Gravel Association regarding the
American Conference of Governmental Industrial Hygienists (ACGIH) and
our concern about the process by which it establishes Threshold Limit
Values, or TLVs, that become de facto regulations by incorporation into
regulatory standards developed by the Occupational Safety and Health
Administration (OSHA) and the Mine Safety and Health Administration
(MSHA).
Based near the nation's capital, NSSGA is the world's largest
mining association by product volume. Its member companies represent
more than 90 percent of the crushed stone and 70 percent of the sand
and gravel produced annually in the U.S. and approximately 117,000
working men and women in the aggregates industry. During 2005, a total
of about 3.2 billion tons of crushed stone, sand and gravel, valued at
$17.4 billion, were produced and sold in the United States.
There are two important points I would like to leave with you
today. One is that while the ACGIH has a rich history of providing high
quality and useful information concerning the health effect of chemical
substances, it is not a consensus standard organization. The process by
which it develops guidance information, including the Threshold Limit
Values of Chemical Substances, does not involve the wider audience or
operate in the ``sunshine'' like those processes of other recognized
consensus standard setting organizations or the Federal government.
The second and just as important point is the wide acceptance and
incorporation by the Federal agencies OSHA and MSHA of the ACGIH TLVs
into their standards and regulations as if they were established by a
consensus standard organization. In the case of the TLVs, whenever
there is a new TLV adopted, it automatically becomes a new standard
under OSHA and MSHA. As a result, the Federal standards are changed and
bypass the regulatory process where input can be provided or it can be
challenged if necessary.
At its inception in 1938, the National Conference of Governmental
Industrial Hygienists, which changed its name in 1946 to the American
Conference of Governmental Industrial Hygienists, was one of only a few
places where workplace exposure to hazardous substances was considered
important. Initially, and until 2000, only members of the government
and academic institutions could become members of the organization. In
2000, limited membership was extended to allow members from other
organizations additional opportunities to serve on appointed committees
and the board of directors.
An important consideration is that many governmental members work
for regulatory agencies such as MSHA and OSHA, the very same ones that
write regulations that incorporate the ACGIH TLVs. Even though the
ACGIH has in place a conflict of interest requirement that all members
of the TLV Committee must sign and agree to, it may not be possible to
differentiate between work of ACGIH and work for their employer.
During the war-time industrial buildup, the ACGIH recognized a need
to identify, understand and control worker exposures to hazardous
substances encountered in the workplace. The Threshold Limit Values for
Chemical Substances, the TLV Committee, was established in 1941. The
first exposure limits, known as maximum allowable concentrations, were
established in 1950. These workplace exposure limits became known as
the Threshold Limit Values (or TLVs) in 1951 and are still used today.
In most cases, the quality and volume of scientific information
available did not compare with what we typically expect today. The
process by which the ACGIH established these TLVs was through a
committee of practicing professionals who met to consider any
information available. The committee made recommendations to the ACGIH
Board of Directors who approved the TLVs. The process included placing
a given substance on the ``Notice of Intended Changes'' list for a
period of two years to allow time to receive input and judiciously
consider the information. In earlier times, information was actively
sought from industry because they had the information available that
could help to make a decision. That collaborative process, however, no
longer seems to work effectively.
This model seemed to work quite well until the establishment of
OSHA in 1970. OSHA was charged with the responsibility of regulating
the workplace for protecting employee safety and health. When OSHA
looked for a way to develop standards initially, they looked to
consensus standards, such as the American National Standards Institute
(ANSI), the American Society for Testing and Materials (ASTM) and the
National Fire Protection Association (NFPA) in order to rapidly develop
regulations for the protection of workers. At that time, there was no
consensus organization setting exposure limits for workers. However,
the ACGIH TLVs were in place and represented a considered list of
hazardous substances where there was recognition of an exposure level
that was believed to be safe for all workers. The 1971 TLVs were
incorporated into the OSHA regulations as Permissible Exposure Limits
(PELs) that must be met. In the case of the mining industry, the 1973
TLVs were incorporated for the same purpose. For the most part, these
still are the requirements.
Today, the overall federal regulatory process is required to be
more open-in the sunshine, so to speak-in order to allow for the input
of all parties and consideration of data that is of high quality and
scientifically valid in establishing a regulatory limit that everyone
must meet. Hence, the recent Data Quality Act. Further, today's
regulatory process requires the consideration of all available
technical and economic feasibility data when setting permissible
exposure limits for American workers.
The ACGIH, however, is not a consensus organization because its
internal decision-making process excludes many of the parties that may
be affected by the decisions that are made. The ACGIH recognizes this
as evidenced in the disclaimer published in every edition of the TLV
Booklet that says:
* * * These recommendations or guidelines are
intended for use in the practice of industrial hygiene,
to be interpreted and applied only by a person trained
in this discipline. They are not developed for use as
legal standards and ACGIH does not advocate their use
as such.
The ACGIH TLV process does not consider either technical or
economic feasibility during its deliberations. While they accept input
from interested parties, ACGIH is not required to act on the outside
input received.
Perhaps this is a two-part issue. The ACGIH clearly states that its
TLVs are not to be used as regulatory limits, but the regulatory
agencies incorporate them by reference and they become a standard
affecting all employers without the full open, regulatory process
required today.
There are two recent examples of decisions that affect the members
of the NSSGA.
In one case, calcium carbonate, the ACGIH published a notice of
intent to change the existing TLV for calcium carbonate. It proposed
reducing the calcium carbonate TLV by 90 percent based on a single
German study of 32 individuals suggesting that the current level should
be lowered because there was some evidence of nasal irritation. Calcium
carbonate, the simple main ingredient in TUMS, is an innocuous
substance that is used as filler in paints, plastics, paper coatings,
pharmaceuticals and various food grade substances. Even the white
powder used to keep chewing gum from sticking to the wrapper is pure
calcium carbonate. The NSSGA in cooperation with the Portland Cement
Association and Industrial Minerals Association-North America retained
a well-known toxicologist specializing in inhalation toxicology to
review and comment on the relevance of the German study. This report
was submitted to the ACGIH TLV Committee for their consideration in
setting a new TLV for this material. It is not known whether the report
was influential, but when ACGIH published its 2006 TLV Booklet, the
original Notice of Intended Change to reduce the TLV had been replaced
with a new one announcing the intention to remove the existing TLV and
its supporting documentation from the TLV booklet, suggesting that even
the original TLV might be inappropriate. Of course, it will be at least
another year, perhaps two, for the final decision to be made.
A second TLV for crystalline silica went through the TLV Committee
and was significantly reduced for the second time since 2000. This
reduction occurred while controversy continues about the quality of the
scientific data supporting health effects and measurement methods of
crystalline silica. Further, OSHA is in the midst of rulemaking on this
particular substance where the issues of technical and economic
feasibility must be considered.
The salient issue is that these TLVs have been incorporated by
reference in the OSHA Hazard Communication Standard. The standard
requires that every time there is a change in relevant information (for
example, a reduction in the TLV or a change in carcinogen
classification) every manufacturer of a listed substance must change
the material safety data sheets (MSDS) they are required to produce
under the Hazard Communication Standard to reflect this new information
within three months. This also causes unwarranted concern and anxiety
on the part of the general public who use these basic materials
everyday and view the MSDS as a government-sanctioned public security
warning system that gives them the needed sense of security that use of
these products will not harm them or their families. Random setting and
withdrawal of TLVs calls into question the standard setting process
itself as well as the integrity of the underlying scientific standard
setting body.
NSSGA understands that legislation to encourage development and
promulgation of voluntary consensus standards by providing relief to
standards development organizations is being developed. NSSGA support
efforts to promote the use of voluntary consensus standards, which will
encourage long-term growth and help maintain the competitiveness of
U.S. enterprises around the world.
Mr. Chairman, that concludes my statement. Again, thank you for the
opportunity to appear before the Subcommittee today. I am happy to
respond to any questions.
______
Chairman Norwood. Thank you, Mr. Ruddell.
Dr. Mirer, you are recognized.
STATEMENT OF FRANKLIN E. MIRER, DIRECTOR, HEALTH AND SAFETY
DEPARTMENT, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW)
Dr. Mirer. Thank you, Dr. Norwood, Mr. Owens. I might point
out I am a Brooklyn boy, born and bred. I hope to return there
later in life.
My testimony today will focus on the need for OSHA to
promulgate standards for a host of chemicals and what Congress
can do to make this happen on the eve of Workers Memorial Day.
We have copies of our poster over there. We hope you will look
at it. We should be thinking about how we are going to protect
workers.
Chronic illness arising from long-term chemical exposures
at work accounts for 90 percent of the known work-related
mortality. You can see the names of our known victims on the
back of our poster, but most of the victims of chemical
exposures are not aware of the chemical cause of their illness.
Reducing those known exposures is the most reliable and
best opportunity to protect the lives and health of American
workers. The fact is in the more than 3 decades OSHA has been
in existence, OSHA has issued its new exposure limits for only
17 agents and groups of agents. These rules radically
transformed the allowable exposures for those chemicals from
the 1968 levels. Protected workers transformed industries, and
largely avoided the high costs projected by industry
doomsayers, and we have heard quite a bit of doom here already.
You have to think about what the consequences of OSHA not
moving are, regardless of what you think about ACGIH, which are
not in our view particularly protective levels or stringent
levels. I only joined ACGIH after Henry sued them and drove
them to the brink of bankruptcy. I figured I had to join them
to support them.
Chairman Norwood. The taxpayers are buying enough from
them. They won't go bankrupt.
Dr. Mirer. So let me talk about a real instance of what the
consequences of not setting standards are. In November 2000,
Dave Patterson, a machine operator at a brake systems plant in
Mount Vernon, Ohio, began to get severely ill. In January, two
additional members there, machinists J. J. Johnson and set-up
man John Gooch were hospitalized for hypersensitivity
pneumonitis, a serious disease that is like idiopathic
extrinsic alveolitis. It can be fatal and lead to severe lung
disorder.
One of these victims filed an OSHA complaint. On February
1, 2001, an OSHA inspector entered the factory, measured the
exposures, issued no citation for metalworking fluids because
the manufacturer, the employer, was found to be in compliance.
Workers continued to get sick. NIOSH came in and you see the
detail in my testimony. Several publications arose out of the
incident, but I believe in my heart this problem went on for a
whole year longer than it had to go on because of the lack of
an OSHA standard.
That is one of a dozen, or more than a dozen outbreaks we
know about, many in our plants from metalworking fluids. In our
testimony, you read the long, sad story of how long we have
worked on trying to get a new OSHA standard through this,
including a consensus process where the majority of the
industry representatives, not all of them, simply refused to
recognize the scientific data supporting the need for the
standard.
We had an 11-to-4 vote for OSHA to go forward on a
standard, and yet OSHA and this administration withdrew it from
their regulatory agenda, and then beat us in court over the
need to go forward.
The most visible demonstration of the impact of OSHA's
failure to move forward on new exposure standards was, in my
view, the World Trade Center. OSHA measured according to their
standards and polled those workers. There were no violations.
There was nothing to worry about, and we can see what the
consequences of that are in the daily newspapers in New York
every day.
The chemical standards process has pretty much ground to a
halt. We think the solution to this has to be broken
legislatively, this particular impasse. First, OSHA should be
required to meet as high a threshold to defend refusing a
petition for a new standard, as it does to promulgate a new
standard for chemical exposure.
Second, contrary to what has been suggested here, Congress
should authorize OSHA one more time to adapt the threshold
limit values list that we have now, to bring us into the 21st
century. I am also suggesting an escape clause where those that
find substantial reasons from affected parties should go into
the OSHA 6(b) rulemaking process with a time certain for coming
out of it at the end.
Just a word on consensus standards. Consensus standards are
usually a negotiation between the equipment suppliers and the
equipment users, where they address health and safety. They are
usually a negotiation between the machine tool builders and the
machine tool users for how to get a safety standard.
These are interest groups. They are not scientific groups
and they don't have representation from the affected employees
except in very rare instances. So they are not the body to
establish a scientific consensus or a scientific view.
In conclusion, the UAW appreciates the opportunity to
testify. We look forward to moving to improve protections for
American workers, not to try and erode those professional
bodies that are attempting to give advice to employers on how
to protect their workers.
Thank you very much.
[The prepared statement of Dr. Mirer follows:]
Prepared Statement of Franklin E. Mirer, Ph.D., CIH, Director, UAW
Health and Safety Department, International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America (UAW)
My name is Frank Mirer and I am the Director of the Health and
Safety Department of the United Automobile, Aerospace, and Agricultural
Implement Workers of American (UAW), International Union. The UAW would
like to thank you for the opportunity to testify on the use of
nonconsensus standards in workplace health and safety. My testimony
will focus on the need for OSHA to promulgate standards for a host of
chemicals and what Congress can do to make this happen. On the eve of
Workers Memorial Day, we should be thinking about protecting workers.
Chronic illness arising from long term chemical exposures at work
accounts for 90% of known work-related mortality. Few of these victims
are named on Workers Memorial Day, and many are not aware of the
chemical cause of their illness. Reducing those known dangerous
exposures is therefore the best opportunity to protect the lives and
health of American workers. Recognizing the dangers of chemicals at
work also would facilitate controlling those chemicals at home and in
the community environment.
When OSHA was established in 1968, it inherited a group of chemical
exposure limits, based on the science of the '60s and before. Those
limits were set with substantial involvement of scientists affiliated
with the chemical industries through the American Conference of
Governmental Industrial Hygienists (ACGIH). Those limits were not
intended to meet the criteria for protection mandated by the OSHA law.
Nevertheless, this was a place to start in regulating chemical
standards.
In the more than three decades that OSHA has been in existence,
OSHA has issued standards for only 17 agents or groups of agents. These
rules radically reduced allowable exposures from the 1968 levels,
protected workers, transformed industries, and largely avoided high
costs projected by industry doomsayers. Those costs incurred included
wages of workers fabricating and maintaining control equipment, and
cleaning the workplace, so these rules actually created jobs. OSHA
should have issued rules for dozens more chemicals.
The effects of OSHA failing to set new standards can sometimes be
seen in victims we can name. Here's a real story, documented in the
scientific literature and the popular press.
In November 2000, Dave Patterson, a machine operator at a brake
systems plant in Mt. Vernon, Ohio, initially reported breathing
difficulties to his physician. In January 2001, machinist J.J. Johnson
and set-up man John Gooch were hospitalized with hypersensitivity
pneumonitis (HP), a serious disease that can lead to respiratory
failure. Subsequently, additional HP cases developed as well as cases
of bronchitis and occupational asthma (OA).
On February 5, 2001, an OSHA inspector responded to a complaint
from one of the victims. The inspector issued no citation for MWF
exposure because they found management in compliance. OSHA gave
management a clean bill of health for metalworking fluids.
Workers continued to get sick. In June 2001, a National Institute
for Occupational Safety and Health (NIOSH) Health Hazard Evaluation was
called in by management and UAW Local 1939. By November 2001, 107
workers (out of 400) had been placed on restriction and 37 remained on
medical leave. NIOSH identified 14 with occupational asthma, 12 with
hypersensitivity pneumonitis, three with occupational bronchitis.
The UAW worked closely with TRW and NIOSH to protect our members.
Ventilation was improved to bring exposure into compliance with UAW and
NIOSH recommended limits. Eleven months after the first case, new cases
stopped appearing, but some victims were still unable to return to
work. Recent reports from our members and the press show that previous
victims still suffer.
This was one of at least a dozen ``outbreaks'' of illness and
disability from HP in machining plants which are in compliance with
OSHA's exposure limits. These outbreaks were and are epidemics of acute
severe illness on top of the endemic risks of asthma, other respiratory
conditions, and most likely cancer.
Well before OSHA's 2001 inaction in Ohio, the problem was known to
OSHA and to the industry. In 1993, the UAW petitioned OSHA for an
emergency temporary standard for metalworking fluids based on research
largely conducted jointly in the auto industry. OSHA denied that
petition, but did convene an industry-labor-public health standards
advisory committee. The automobile industry responded in 1995 and 1997
by convening symposia on the health effects and control measures for
exposure to metalworking fluids. Both concluded that the effects were
real and controls were feasible. The UAW negotiated exposure limits
lower than OSHA with the auto industry employers, as well as other
control measures. The year 1997 also saw the crafting of an American
National Standards Institute (ANSI) standard on mist control for
machine tools and a workshop was held to identify the cause and
prevention of hypersensitivity pneumonitis. The following year (1998)
NIOSH completed a ``Criteria Document'' on metal working fluids (a
proposal to OSHA for a standard), concurring with the UAW recommended
limit. The OSHA Standards Advisory Committee voted 11-4 that OSHA issue
a comprehensive standard to drastically reduce the mist levels to which
workers are exposed and to enact strict requirements for fluid
management. OSHA responded to the SAC report by issuing voluntary
guidelines, but left the new standard on the regulatory agenda.
So where was OSHA during the TRW outbreak? As workers were being
hospitalized, an OSHA inspector was giving a ``clean bill of health''
to the plant, based on a 30+ year old standard that would allow a
typical worker to inhale 1 pint of oil over the course of a working
lifetime. And then, in October, 2001, OSHA deleted Metalworking Fluids
(MWF) from the regulatory agenda, withdrawing the advanced notice of
proposed rulemaking. OSHA acknowledged the respiratory illness from MWF
exposure at prevailing and permitted exposure levels, but stated the
asthma and hypersensitivity pneumonitis were ``rarely fatal.'' The UAW
petitioned the 3rd Circuit Court of Appeals to compel OSHA to restart
the rulemaking. On March 24, 2004, that Court deferred to OSHA's
decision NOT to act or start setting a standard.
Since 1970, scientific evidence and practical experience has
identified workplace chemical causes of many instances of illness,
disability and death among workers. Technical methods for estimating
quantitative risks at various exposure levels--methods demanded by
industry--demonstrate very large risks at very low exposures. Multiple
studies have shown that widely distributed chemicals, like silica, are
now known to cause cancer in humans. Lung cancer has been observed
among workers exposed at levels permitted by the current OSHA standard
and prevailing in American workplaces and at American construction
sites. Organic dusts, like flour, are known to cause occupational
asthma at exposure levels prevailing in American workplaces. A
predictable fraction of asthma victims will die of that illness.
The most visible recent demonstration of the impact of OSHA's
failure to move forward on new exposure standards was at the World
Trade Center recovery site. The scientific literature and popular press
recount the ongoing toll of disability and even death among recovery
workers. Those accounts fail to connect the dots, that OSHA, and EPA,
correctly reported that none of the measured exposures at the site
violated outdated OSHA standards.
The standards process, when allowed to proceed according to law,
drastically reduces permissible and actual exposures. The OSHA asbestos
permissible exposure limit, revised several times, was cut to \1/50\ of
what it was in 1970, and even this limit leaves behind a substantial
cancer risk. We still pay for the legacy of those old, high exposures.
Unfortunately, the chemical hazard standards process nearly ground
to a halt in the last decade. The most recent rule protecting against
cancer-causing chrome compounds was issued this year following a court
order to regulate and a court decreed time limit to get it done. The
mandated reduction is not sufficient, but it's something. The standard
promulgated before chrome compounds, the methylene chloride standard,
began with a UAW petition.
Without a doubt, these delays in the standard setting process have
been aggravated by Congressionally imposed special reviews by ``small''
business
employers [but not employees of small business], OMB imposed
regulatory reviews, and increasing demands for detailed economic
analyses. These have injected procedural Botox into an agency already
paralyzed by analysis. But the delays are also attributable to the
failure of OSHA and the Administration to support prompt action in
promulgating additional standards.
The legislative fix to this impasse has two parts. First, OSHA
should be required to meet as high a threshold to defend refusing a
petition for a new standard as it does to promulgate a new standard.
Second, Congress should authorize OSHA to adopt the current Threshold
Limit Values (TLV) list on a one time only basis. TLVs are developed by
ACGIH, a group of scientists charged with investigating, recommending,
and annually reviewing exposure limits for chemical substances.
Generally, the TLV's are not as protective as permissible exposure
limits set according to the OSHA law. Often the values allow a
significant risk of material impairment to health, and don't push as
far as would be economically feasible for the industry. In part, these
shortcomings in protection arise from the nature of the ACGIH and its
TLV committee, a set of volunteer organizations, with limited
resources. ACGIH is not able to hold months of hearings, or hire
specialized experts as OSHA might. But given OSHA's lack of action on
setting new standards, the TLV's are a reasonable starting point in
getting protection and future rulemaking. Congress should direct this
action, not prevent this action. Where there is substantial objection
to the limit for a particular agent, and a showing of material problems
with compliance with that limit, OSHA should be compelled to place that
agent in line for complete 6(b) rulemaking on a clear timetable.
The UAW was able to negotiate with auto industry employers to
establish the TLV's as the internal occupational exposure guidelines,
with updating as needed. A limited but significant number of TLV's
really make a difference. They establish exposure levels lower than
those which prevail or may prevail in the industry. For example, the
TLV for carbon monoxide is \1/2\ the OSHA permissible exposure limit,
and this value can really drive improved ventilation in many industrial
and service occupations.
In conclusion, the UAW appreciates the opportunity to testify
before this Subcommittee. We look forward to continuing to work with
Congress and OSHA to improve the safety and health of all American
workers. Thank you.
______
Chairman Norwood. Thank you, Dr. Mirer.
Henry, you are up.
STATEMENT OF HENRY CHAJET, PARTNER,
PATTON BOGGS, LLP
Mr. Chajet. Thank you, Mr. Chairman.
Mr. Chairman and members of the committee, thank you for
the opportunity to present testimony today on an issue of great
importance to public policy in the United States and
environmental and health and safety protections. We appreciate
your leadership in this area and very much appreciate your help
in making changes to solve a very significant problem.
In the beginning, Mr. Chairman, you asked had things
changed much since you held a hearing here 4 years ago. My
answer to that question is yes. They have gotten worse. We saw
a number of years ago a promise by the Department of Labor and
the Department of HHS and ACGIH to work on this issue and make
it better. What we have seen is substantial deterioration of
the process.
It is not just ACGIH either. It deals with other non-
consensus standard groups. For example, the International
Agency for Research on Cancer, which is IARC, which is based in
Europe and to whom we have delegated the power of the United
States government to make decisions.
That is what this is about. It is about the delegation or
the illegal delegation of power to groups that are private or
quasi-governmental, but they have no accountability to the
citizens of our country or to you, the Members of Congress who
pass these laws.
You have given authority to OSHA, to EPA, to MSHA, to
NIOSH, and that authority has been taken from those agencies
and given to these groups that we call non-consensus standard
organizations. That is a very polite term. It is a very polite
term for an insidious, growing problem of giving away the power
of the United States and the rights of its people, us, to seek
review and input. Because when we work at these organizations
that are non-consensus, what that really means is they meet in
secret.
What that really means is they don't tell us who the
authors are of the product that they produce. They don't tell
us what the conflicts of interest are or the bias,
predetermined results. We don't even know the authors or the
credentials of the people producing the material. It is that
insidious growth of the giveaway of our rulemaking authority to
these non-consensus groups that has brought us to where we are
today.
This is not about whether X number of milligrams of a
substance or Y number of milligrams of a substance causes a
health problem. We can't answer that question here today on any
particular substance. But I can tell you one thing: The ACGIH
makes no dispute over the fact that they regulate based on
nuisance. If it makes you sneeze, if it makes your eyes appear
like allergies, they regulate to try to stop that.
And that is a worthy goal, but it is not what the OSH Act
is all about. It is not what the EPA is all about. And because
of that, we get these outrageous numbers by the bakers or other
industries that they can't deal with these numbers, and they
take away our competitiveness. This is a deceptive process.
They take on the view that they are scientific, but in fact
they produce junk science, and I use that term, Mr. Chairman,
in a gratuitous way.
I am trying to give them credit for something, but it is
very difficult when you get into any one of the TLVs we have
examined, and we have examined six of them in the last 5 years.
It is very difficult to see any science at all. For example, we
have authors who have said in testimony the data does not
support the TLV, authors, the people that actually wrote it. We
have authors who have said, ``I don't agree that we call that a
human carcinogen,'' but there is the publication. We are stuck
with it.
We have authors who have said, ``Yes, I was the Federal
employee in charge of that regulation, and I was also the ACGIH
TLV author,'' with a direct conflict of interest. We know that
the Federal Government is one of the largest funders of ACGIH
and IARC. We don't know the extent of it. We know that there is
$500,000 at least in publication purchases at ACGIH over the
course of a couple of years.
We see the conflicts of interest of people that are
testifying in tort claims. The expert on vibration TLVs was the
ACGIH author. The vibration TLV was rejected by his own agency,
NIOSH. We see these conflicts repeated. We see the lack of
science repeated in the six that we have identified, and yet
there is no direct remedy other than suing them and trying to
peel the onion in that manner.
So we ask, Mr. Chairman, that you and the members of this
committee and the Congress look at this problem, stop this
illegal delegation of authority to these secret, non-consensus
groups, and bring back the power to the agencies that you
delegated this authority to.
Thank you very much.
[The prepared statement of Mr. Chajet follows:]
Prepared Statement of Henry Chajet, Esq., Patton Boggs, LLP
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to testify regarding the important policy and legal impacts
of non-consensus organizations (NCOs) that create and adopt government
sanctioned safety, health and environmental standards. These NCOs make
``findings,'' create ``limits'' designate ``classifications,'' and
establish ``guidelines,'' that are used for federal agency standard
setting.
The written testimony that I submitted for the record provides a
summary and description, with documentary and testimonial evidence on
an accompanying CD, of the secret, backdoor rulemaking conducted by one
such NCO, the American Conference of Governmental Industrial Hygienists
(``ACGIH''), and the junk science it has produced over the last ten
years that is undermining the regulatory and legal system. Mr.
Chairman, by using and supporting NCOs for standard setting, DOL, DOE,
HHS, and EPA, are abrogating their duties through an insidious
delegation of government authority that denies our fellow citizens the
rights guaranteed by the Constitution and the protection of the laws
enacted by the Congress.
For example, unless the Secretary of Labor acts immediately to stop
OSHA, the agency will improperly interpret its Hazard Communication
Rule issued in 1987, to automatically incorporate into law an invalid
2006 Threshold Limit Value?, or ``TLV'' limit, for silica, perhaps the
most common mineral on earth and the basic component in glass, brick,
concrete, stone, gravel and countless consumer and industrial products.
The new TLV limit for silica is 1/4 the level deemed safe by valid OSHA
and MSHA regulations and was created using secret authors with
conflicts of interest and bias who ignored the scientific evidence that
contradicts the TLV. The new TLV will have to be printed on material
safety data sheets and become the basis of labels, warnings, and
employee training. This will occur automatically, without any federal
register notice or input from interested parties and without any of the
protections of due process and appeal rights mandated by Congress.
Later, some of my fellow members of the bar will call an expert witness
to testify in product liability lawsuits, perhaps an ACGIH Committee
member or the TLV author, who will describe the new silica TLV as the
``standard of care'' sanctioned by the United States government, and
claim that exceeding the TLV level causes harm.
This is but one of many examples of how DOL, EPA, DOE and HHS
continue to support, use, and rely on NCOs like the ACGIH. In contrast
to NCOs, consensus organizations (e.g. ANSI), adopt standards according
to strict procedures that are transparent, in open meetings, with a
generous input and appeal process for all interested parties. The OSHA
Act and other federal laws encourage agencies to use consensus
standards, but unfortunately do not expressly prohibit their use of
NCOs that, like ACGIH, adopt standards under a veil of secrecy. Unless
you sue them, which I have done twice, it is impossible to discover the
name of the author of a new limit, much less his or her credentials,
bias and conflicts of interest, or the real reasons and basis for the
limit. When you finally force NCOs like ACGIH to disclose their
secrets, the results are shocking and demonstrate the real harm they
cause: the encouragement and adoption of junk science by federal agency
personnel that undermines the legal system in various ways, including:
One: NCOs produce standards like the silica TLV limit using closed,
secret procedures, often tainted by hidden conflicts of interest and
bias.
Two: NCOs like ACGIH do not use accepted scientific procedures such
as outside, independent peer review and risk assessment, nor do they
conduct independent research to support their standards. Yet, NCOs like
ACGIH promote a false image of scientific integrity with the assistance
of federal agency employees who participate in their standard setting
and leadership.
Three: US and foreign NCOs, like ACGIH and the International Agency
for Research on Cancer (``IARC''), not only are provided with
government credibility through the participation of senior federal
employees, but they are also supported with taxpayer dollars that
include direct funding, publication purchases, meeting registration
payments and expenses, and the extensive use of federal employee time
and agency resources.
Four: To paraphrase one of the ACGIH's founders, NCOs like ACGIH
provide a forum for agency employees to accomplish goals they could not
otherwise accomplish in their official capacities.
Five: NCOs provide credibility for select university researchers
and give them access to federal employees that can assist them in
obtaining government grants and resources.
Six: Agencies misuse NCO standards to support rulemaking actions,
to justify creating or lowering permissible exposure limits, or to
impose regulatory requirements like air or medical monitoring or hazard
communication. For instance, MSHA adopted a diesel exhaust standard in
a rulemaking led by the agency official who secretly authored the
corresponding diesel TLV. Similarly, MSHA issued a hazard communication
rule that adopted the year 2000 TLV list, without disclosing that one
its rulemaking leaders was the agency's secret official representative
on the ACGIH TLV Committee. This year, DOE adopted all of the ACGIH's
2005 TLV limits as enforceable standards for its contractors.
ACGIH's clear conflicts of interest and bias on TLV limits are
overwhelming. First, ACGIH has a marketing staff and sells TLV
publications and meeting registrations for profit. OSHA, MSHA, and
other federal officials that serve in ACGIH leadership roles make ACGIH
purchasing and meeting registration decisions, help coordinate and plan
ACGIH functions, and encourage agency personnel participation.
Through litigation, agency personnel in ACGIH leadership positions
have been ``caught'' simultaneously developing agency rules and ACGIH
TLV limits on the same issue (e.g., diesel exhaust), using ACGIH to
support and promote agency regulatory action (e.g., global
harmonization and control banding), and using agency research to
support ACGIH standards that their agencies would not adopt (e.g.,
vibration ergonomics TLV) or that could not survive legal rulemaking
because of faulty science.
TLV authors parlay their ACGIH roles into financial opportunities,
including receiving federal research grants (e.g., TLV Committee
Chairman), testifying as expert witnesses (e.g., vibration TLV author),
and soliciting industry funding for their scientific research on
pending TLV limits (e.g., copper).
Though ACGIH claims it has changed its ways, instituted a conflict
and bias prevention procedure, and uses sound science to base its TLV
limits, these claims are a marketing deception. ACGIH officials
testified that ACGIH does not identify, record on a written form, and
review conflicts and bias, as claimed on its web site. In fact, ACGIH
officials have testified that ACGIH ignores conflicts when they are
reported to the ACGIH and that they personally should have been removed
from TLV authorship, but were not. ACGIH officials have acknowledged
under oath that they described the scientific data as not supporting
the copper TLV they published, that they disagree with the silica TLV
carcinogen designation, and that they based a TLV for a solvent on an
isolated finding of a single, unpublished rat study that a panel of
experts for the National Toxicology Program found was unreliable and
should not be used. The following are examples of recent forced
disclosures regarding ACGIH TLV limits:
The primary author of the silica and arsine TLV limits is
a private consultant on these issues. He participated in a California
silica rulemaking, without disclosing his secret TLV authorship or
conflicts. He admitted that his silica TLV coauthor is an example of
someone who ``demonizes industry,'' and who had published an opinion
that a reduced silica TLV should be adopted even before ACGIH reduced
its TLV. The primary silica TLV author expressed his own disagreement
with the ACGIH carcinogen classification for silica. He also admitted
interpreting the scientific study upon which he based the new silica
TLV limit in a manner inconsistent with the actual researcher who
conducted the study, even though the study's research had complained to
ACGIH about the misuse of the study.
A senior MSHA employee authored the Diesel TLV even while
he led the MSHA committee drafting the diesel rule and incorporated TLV
materials in the rule. While DOL has announced new conflict prevention
policies, no action has been taken to disclose and cure prior conflict-
infected actions.
In spite of the new DOL policy, MSHA continues to secretly
pay an official to serve on the TLV Committee. That official admitted
working on the MSHA Hazard Communication Rule that adopted the year
2000 TLV limits without disclosing her conflict to the public. In
addition, MSHA approved her plaintiff's expert witness testimony, on a
subject matter covered by the TLV Committee, while she was an MSHA
employee and serving on the TLV committee as the MSHA representative.
The TLV Committee Chair develops TLV limits for diesel
particulate matter and beryllium, even while receiving millions of
federal dollars to study these very substances. He admitted
transferring the lead authorship for a TLV to avoid the appearance of a
conflict, even though he remained involved in setting the TLV. He
admitted being ``gifted'' valuable federal property--genetically
altered animals for research by his organization (NYU) on pending TLV
limits.
The Copper TLV author did not recuse herself from
developing that TLV even though she also sought private funding for
copper research from industry. While she reported the conflict to
ACGIH, she did not know why they did not remove her from the authorship
and preferred that they would have done so.
The author for the vibration TLV (an ergonomics TLV),
served as an official NIOSH representative to the TLV Committee and has
been a plaintiff's expert witness in 14 product liability cases
claiming that hand tools are defective. He relies on his interpretation
of the TLV he drafted, which NIOSH rejected, and which uses a single
measurement for one minute to reflect a full day of vibration exposure,
regardless of significantly lower measurements taken on the same day by
him.
Given these and other conflicts and bias, it should be no surprise
that these TLV limits are junk science. Moreover, there are no
qualifications required to draft TLV limits. The author of the Copper
TLV limit does not even have experience in industrial hygiene. Her TLV
training amounted to a ``power point presentation.'' The recent ACGIH
Chairperson, who's also an OSHA regional administrator, described all
of the types of medical and scientific expertise needed to create an
exposure limit, admitted she did not have any of them, but contended
that she required none of them to adopt TLV limits as the Chair of the
ACGIH Board of Directors.
The TLV limits described above are arbitrary. The proposed
Beryllium TLV limit changed by orders of magnitude several times in two
years, without any new data or studies to justify the changes. One
author admitted under oath that she simply gives ``less priority'' to
studies that support higher exposure limits. The Copper TLV author
admitted that because she missed the final committee meeting, she
wrote, and ACGIH published, a different TLV than the committee voted to
adopt. The Silica TLV likewise relies on incorrect literature and
studies, including a discredited study involving defective lab
equipment. The Silica TLV author even admits that in his opinion,
silica is not a suspected human carcinogen, contrary to the ACGIH
classification.
TLV authors do not search comprehensively for relevant scientific
studies when writing a TLV. The Silica TLV author did not even read
literature cited in his TLV documentation as support for his TLV. TLV
authors don't review or consult other ACGIH publications, committees,
or committee members, leading the Beryllium TLV to rely heavily on a
blood test which another ACGIH committee deemed ineffective and
infeasible. Similarly, one of OSHA's senior officials, Richard Fairfax,
rejected the copper TLV as not supported by the evidence when he served
as chairman of a TLV subcommittee and author of that TLV. The same TLV
limit, based on the same invalid evidence, was proposed again by the
current author, and published by ACGIH, without even knowing it had
already been rejected by ACGIH itself due to the invalidity of its
scientific basis.
ACGIH TLV authors do not consider, or even read, scientific
comments submitted to ACGIH by industry and other interested parties.
Thus, when the Silica TLV author misinterpreted a key study and the
author of that study wrote and complained to ACGIH, the TLV author
simply ignored the complaint. When the National Mining Association
submitted comments to ACGIH on the proposed Copper TLV, they were not
read by the TLV author. TLV limits also are not peer reviewed, even
when specifically requested by TLV Committee members. The ACGIH TLV
Chairman admitted that his request for the use of outside peer
reviewers was rejected, and the Beryllium and Copper TLV author
admitted that no scientific journal would publish her TLVs.
After being developed in secret by anonymous authors, TLVs are
adopted with almost no further review within ACGIH. At one meeting in
2004, the ACGIH Board adopted 60 TLV recommendations at once, spending
an average four to five minutes considering each. One former TLV
Committee member wrote that ``[t]here are just too many things to read
in real life to let me spend time for a critical review.''
Worse yet, the federal agencies financially support ACGIH,
influence TLV limits, and improperly adopt and rely on them without any
review of their scientific validity. One computer report shows over
$500,000 in federal purchases of ACGIH products over a recent 3-year
period. Another invoice shows over $54,000 in ACGIH purchases by just
one OSHA regional office in one year.
A founder of ACGIH once said that an organization like ACGIH ``can
very often accomplish things which an organization of more official
character is unable to do * * * * even though the same people are
talking.'' Indeed, ACGIH's lawyers admitted that TLV limits are used by
government as ``de facto standards'' when the proper rulemaking process
becomes ``bogged down.'' The Justice Department has admitted that
federal agency employees serve on ACGIH TLV committees both in their
``official'' and un-official personal capacities, even though ACGIH
deceptively advertises that its ``volunteers'' serve only in their
personal capacity.
Conclusion
Mr. Chairman, ACGIH was once a legitimate creation of the federal
government, managed and housed by the Public Health Service and NIOSH.
It benefited the public by the adoption of TLV limits by its full
membership, in an open, transparent and consensus process.
Unfortunately, today the ACGIH is different. It has transformed into a
rogue advisory committee; a hollow, secretive organization through
which individuals with conflicts of interest change federal standards
based on junk science. This NCO backdoor rulemaking violates federal
law and results in de facto standards which bear little resemblance to
the latest scientific knowledge necessary to protect workers and the
environment.
Mr. Chairman, I thank you for the opportunity to testify and for
your efforts to focus sunshine on this issue and encourage sound
science and accountability in government. As a result of this
Subcommittee's hearings and a federal lawsuit five years ago, DOL, HHS
and ACGIH promised reforms, after ACGIH withdrew its TLV limit for
trona in a published apology that announced to the world there were no
health effects to support the TLV limit. I regret to report, however,
that the reforms never arrived, and instead the situation has
deteriorated even further. I hope this hearing will spur meaningful
change and I look forward to working with you to help restore the
integrity of our regulatory system.
______
Chairman Norwood. Thank you for your testimony.
I think it is important to make it very clear that this
chairman doesn't really care what the TLV is. I don't care what
the PEL is. Whatever number is the correct scientific number, I
am all for.
What I don't like that I see going on out there is that we
are not following the law in determining that, and our great
OSHA has been, and I have been at them for a number of years,
trying to say to them, we need to produce new PELs in the 21st
century. We really need to get some new threshold information
and values in the 21st century, but we need to do it according
to the law.
All advisory committees, standing or ad hoc, must have
members representing management, labor, state agencies, as well
as one or more designees of the secretary of HHS. Now, that is
who should come together to determine what a TLV is. I don't
think the way we are doing it now in secret is going to
continue. I hope not. I am going to try to stop it.
And that is what this hearing is about, not that we don't
need to improve our PELs greatly, because I know we do too. And
I have tried on more than a few occasions actually to get some
consensus out there and it is pretty hard to do and in the end
it may well have to be Congress that once again demands we do
it a certain way in order to get these PELs improved. But they
have got to be proved in the sunlight where everybody gets some
input.
Dr. Mirer said, well, now it is just two people coming
together deciding and fighting back and forth about it, meaning
I guess small business people who are concerned that these new
standards are affecting their business fighting with whom.
Well, the only people he can fight with about it are OSHA. You
certainly can't fight anything with industrial hygienists who
don't know what they have done. Nobody has any way of finding
it out.
And also, Mr. Chajet, I want to ask you about this business
that OSHA is not fighting employers' failure to comply with
TLVs that are set by the governmental industrial hygienists,
not specifically, not under the general duty clause. I am
asking you, has this been your experience that OSHA takes TLVs
from this secret organization and uses the general duty clause
or not?
Mr. Chajet. Mr. Chairman, we have seen examples of that. I
think there is a much bigger problem and that is that OSHA
forces employers to spend millions of dollars to change
material safety data sheets every year when the ACGIH changes
its list, and then they will cite you for having a material
safety data sheet that doesn't have the TLV listed on there.
Chairman Norwood. What authority could you possibly tell me
OSHA has to do that?
Mr. Chajet. Mr. Chairman, they interpret their hazard
communication rule that was adopted in 1987 to adopt a 2006 TLV
developed by ACGIH, and how they interpret it that way, I can't
explain. I think it is wrong. I think it is illegal. I think it
is inappropriate, but yet that is what they do.
Chairman Norwood. They can't do it. It is not allowable for
to use non-consensus standard-setting organizations. There is
no where in the OSH Act that says that. It is very clear in the
OSH Act that you have to use consensus standards. Tell me how
they get away with breaking the law?
Mr. Chajet. Mr. Chairman, I taught occupational safety and
health law at Johns Hopkins graduate school of public health
for more than 15 years. I have read that law thousands of
times. I have to tell you, they have to give notice. They have
to have public input. They have to have rulemaking and I don't
understand how they can adopt the 2006 list or the 2005 list or
the 2004 list every year over and over again without complying
with the law.
They don't comply with the Federal Register Act, which says
publish it in the Federal Register. They don't comply with the
Federal Advisory Committee Act, which says when you are using a
group like this that is advisory you have to comply with these
procedures. They don't comply with any of it.
Dr. Mirer. Dr. Norwood, do you want an answer to this
question, or his fabrications?
Chairman Norwood. You go ahead.
Dr. Mirer. OK. The communications standard which was
adopted during the Reagan administration, I might add, has been
in place for near 30 years now. It is a standard that requires
the chemical supplier to disclose what they know about the
hazards of a chemical. They are also entitled to argue against
that, but they have to disclose what they know about the
hazards of the chemicals.
Chairman Norwood. Disclose to who?
Dr. Mirer. To the person they are selling the chemical to,
who in turn has to disclose it to their employees.
Chairman Norwood. Right. They have to have a written
document that does that.
Dr. Mirer. So to help the employer help the chemical
supplier, OSHA specified at that time the kinds of information
that ought to be included in it, and that included the ACGIH
TLV. What we are talking about----
Chairman Norwood. But OSHA doesn't have any authority to do
that.
Dr. Mirer. Well, it is something that has been in place
since 1987.
Chairman Norwood. That doesn't make it right at all. That
is what we are talking about here now, what is right and what
is wrong, not about whether we have had----
Dr. Mirer. That standard was litigated through the appeals
courts many times. This issue never came up before, and it has
been invented now, but that standard has been well reviewed
judicially.
Chairman Norwood. Depending upon the definition of
``consensus,'' again please. It is in the OSH Act.
Dr. Mirer. The consensus standard provisions there talk
about the adoption of consensus standards during the initial
period of OSHA. This is not adopting a consensus standard. It
is requiring the employer, the chemical company to disclose
what they know about the hazards of the chemical.
A review paper like a documentation for the TLVs or the TLV
itself is information about the hazards of the chemical which
only at their peril would any employer ignore, and only at
their peril would any employer conceal that information.
Chairman Norwood. Which has what to do with the government
hygienists?
Dr. Mirer. I am sorry?
Chairman Norwood. What does this have to do with the
governmental hygienists, industrial hygienists? What has this
got to do with that organization?
Dr. Mirer. The governmental industrial hygienists'
documentation for the TLV and the TLV itself are very
substantial, heavily reviewed for the compilation reviewed by
OSHA.
Chairman Norwood. But they are used by OSHA and they are
non-consensus.
Let me give Mr. Chajet an opportunity. You have impugned
his reputation a little bit. Let me give him a minute to
respond.
Mr. Chajet. Thank you, Mr. Chairman.
Part of the problem is that my good friend Frank is
thinking about the ACGIH the way it was 20 years ago, when it
was an open process, when they were respected for good science,
when they sought out his opinion, the opinion of industry
professionals, the opinion of people that used the materials.
That has changed. That has changed because they closed the
meetings, because they took the vote away from their
membership. And yet this group still has that brand that made
Frank and others think this is a great thing. But it is not.
Let me give you an example. The documentation that Frank is
talking about that they put on the street and they asked people
to believe is sound science, it is that documentation that when
you peel the onion, you find out that it had one author and
didn't get reviewed by anybody. The rest of the board didn't
read it before they voted on it. They adopted 60 of them and
they spent 4 1/2 to 5 minutes on each one in a half-day
meeting.
This is the process. It is a secret author. And then when
you ask the author, right, we have one documentation where the
author said, ``yes, I relied on this particular study that
involved rats.'' Did you look at the human studies? ``No.'' And
then you ask the author, well, that particular study that
involved rats, did you know that the national toxicology
program said it was a bad study? He said, ``yes, but I relied
on it anyway.''
And then you get a TLV. So Frank's image of what this
process is about is different than the reality.
Chairman Norwood. We are not going to get consensus, I can
tell. It is Mr. Owens time. You are recognized for whatever
time you need.
Mr. Owens. Mr. Chajet, would you say ACGIH is a
racketeering enterprise or a communist conspiracy? Why do they
do what they do? And what motivation would they have to do be a
fraudulent organization, perpetrating misinformation?
Mr. Chajet. Congressman, I wouldn't use those words, but
they are an interesting concept. This organization is motivated
by the motivations of its individual people. So you have one
person, for example, who is working at the Mine Safety and
Health Administration trying to get a regulation passed, and he
is the author of the diesel regulation. And then he goes to
ACGIH and he writes the diesel TLV. And then they use one to
bootstrap the other. That is one motivation.
The other motivation is you have a ACGIH TLV author, and
then he leaves the ACGIH and become a union expert witness on
vibration, and he testifies and he makes thousands upon
thousands of dollars to testify that if you violate this
particular number, that tool will cause you harm. And then you
know what happens in those court cases.
Mr. Owens. So are you saying that there are some payoffs
and kickbacks and some financial remuneration involved here?
Either that, or somebody is trying to undermine the nation?
Mr. Chajet. Congressman, there are direct conflicts of
interest within that organization, and I have already provided
background material to the committee which I would ask be
introduced into the record, if that is possible.*
---------------------------------------------------------------------------
*Submitted and placed in permanent archive file, testimony before
the United States House of Representatives, Committee on Education and
the Workforce, Subcommittee on Workforce Protections, Henry Chajet,
ESQ., Patton Boggs LLP, Washington, DC (April 27, 2006).
---------------------------------------------------------------------------
Mr. Owens. Do you think the American Dental Association
would fall in the same category?
Mr. Chajet. I am sorry? I didn't hear you.
Mr. Owens. Do you think the American Dental Association
would fall in the same category?
Mr. Chajet. I still didn't----
Mr. Owens. The American Dental Association.
Chairman Norwood. My organization, the American Dental
Association.
Mr. Chajet. I think that is the best organization in
America.
[Laughter.]
Mr. Owens. Thank you. I want to change the subject a bit.
Mr. Ruddell, I understand from looking at the MSHA website
that a mineworker was killed on the job just 5 days ago at
Franklin Industrial Minerals' Anderson mine in Tennessee. You
didn't mention that in your testimony.
Have you had any communications about this? As director of
environmental safety for Franklin Industrial Minerals, what
steps would you take to prevent similar work events at your
mines?
Mr. Ruddell. That situation is still under investigation,
sir, and you are correct that we did recently have a fatality
at one of our operations, and MSHA is thoroughly investigating
it, along with us.
Mr. Owens. In view of the fact that we are talking about
Workers Memorial Day tomorrow, any steps you would take to
prevent similar kinds of things? You don't know anything about
it at this point?
Mr. Ruddell. No, I am familiar with it, but we are under
investigation. I can get back to you on more details, but right
now the investigation is ongoing and I don't have any specific
answers for it, but I can get back to you.
Mr. Owens. We obtained that information from an MSHA
bulletin, a report from MSHA. Do you get that information as
rapidly?
Mr. Ruddell. I haven't seen it, so I really can't comment
on it right now. But again, I would be happy to look at it and
get back to you on it.
Mr. Owens. Dr. Mirer, let's talk about relevant steps to
protect workers in terms of the most important chemicals on the
TLV list. Let's assume that there is a process going on out
there that really wants to protect workers, that doesn't have
some dark motives, is not a racketeering enterprise.
What should OSHA be doing to protect workers before these
standards are set? We have chemicals coming on-line all the
time, about 500 on the TLV list. Which are the most important
for OSHA to move forward on?
Dr. Mirer. In the straightforward process that we actually
started after the chairman's last hearing on this question, we
attempted to set forward a consensus group that would make
priorities for OSHA to move forward with rapid adoption. Part
of the discussion there was what would happen where there were
chemicals of substantial impact, like silica, like carbon
monoxide, where the standards are clearly inadequate based on
hundreds of studies of silica and many on carbon monoxide.
What would be the process after that? The process after
that would be some trigger of OSHA doing rule 6(b) rulemaking,
bound by a particular time. So you have a two-stage process.
You make the priorities and you go forward.
In the interval, those situations which meet the definition
of the general duty clause, that is to say, has the hazard been
recognized generally in the employer's industry. In those
situations, the employer has the obligation to abate the
hazard, whether or not there is a TLV. The TLV is only part of
the evidence to why there might be, and we could go forward
with that.
For many of these situations, there are, as in the TRW
situation, there are actual workers getting sick in the
workplace. There are workers bringing these problems to the
attention of the employer. There are unions and representatives
of workers bringing these problems to the employer.
What we don't need is OSHA coming around and saying it is
in compliance with the standard. As at the World Trade Center,
we don't need OSHA coming around telling the employer they are
in compliance with the standard and we have nothing to enforce.
Even if we were enforcing, we would still have nothing to
enforce in this situation. That is what we don't need.
We need to get OSHA out of that particular framework. If
they are not moving forward with standards, I don't know what
we are going to do or what we can accomplish.
Mr. Owens. Just one final question to Mr. Ruddell. I
happened to be watching the History Channel last night, and
Marvels was dealing with your industry, a fantastic, huge,
magnificent industry. It makes a lot of money.
I just wondered, for both you and Ms. Marcucci, are we
talking about high costs? Somebody has implied that the TLVs
are just nuisances, that really they are not important.
Sneezing is not a symptom of something more serious. These TLVs
that we are talking about are being in the way.
Do they cause your industry, do they cost a great deal if
you were to pay more attention to these TLVs and their impact
on workers' health?
Ms. Marcucci. For the baking industry, it would cost
approximately $500,000 to put in the equipment to lower the
TLVs.
Mr. Owens. A half-million for the whole nation?
Ms. Marcucci. I am sorry?
Mr. Owens. A half-million for the bakeries across the whole
nation?
Ms. Marcucci. For every bakery.
Mr. Owens. Each bakery would have to pay $500,000?
Ms. Marcucci. We would have to put a half-million dollars
worth of equipment into the baking facility or the equipment
used to protect the employees. It would be dust collectors and
face masks, et cetera, so approximately $500,000 to be utilized
in the bake shop.
Mr. Owens. This is for Pepperidge Farm or one of the big
bakeries?
Ms. Marcucci. My small bakery would be approximately a
half-million dollars for this equipment, to purchase it and to
retrofit it to our existing equipment.
Mr. Owens. That is your estimate? How many workers do you
have?
Ms. Marcucci. We have 350.
Mr. Owens. Oh, 350 workers.
Mr. Ruddell?
Mr. Ruddell. Right now, I don't have exact numbers on what
it would cost on some of the TLVs that have been proposed. We
do have best available control technology for dust in our
facilities. We actually sell dust as a product, so we try to
recoup all of it, get all of it we can. So I am sorry. I can
get back to you if you want, but I do not have a specific
dollar figure for what it would cost us to comply with lower
TLVs.
Mr. Owens. Well, it pays to keep the dust out of the lungs
of the workers, because you can sell it. Right?
Mr. Ruddell. Well, what comes first is safety. For us to
stay in business, the health and safety of our workers is No.
1. We do everything we can to protect our workers. We have
standards set so that we know what targets we have to shoot
for. We try to always be below those TLVs, whether they are set
by AGCIH or whomever. But as far as a specific number, the
biggest concern we have is the setting of the standards by
inference, by reference, rather than going through the process.
That is the main reason I am here.
Mr. Owens. But generally, paying attention to the TLVs is
good business.
Mr. Ruddell. Yes.
Mr. Owens. Thank you.
Mr. Ruddell. We use them as a basis.
Mr. Owens. Thank you.
Thank you, Mr. Chairman.
Chairman Norwood. Yes, sir.
Mr. Kline, you are recognized.
Mr. Kline. Thank you, Mr. Chairman.
Thank you, lady and gentlemen for appearing before us
today. It is some very fascinating testimony. I have to admit
that I have learned an awful lot, that my level of knowledge
and understanding was even lower than I thought when we started
this, so it has been very helpful.
It is also interesting to have one witness accusing another
of fabricating testimony. That is a little unusual for us, too,
so it has been kind of an exciting day.
Mr. Chajet, let me come back to you, if I could. I have
some notes here that, frankly, the staff has prepared, but they
are interesting questions and I would like to pursue them if I
could.
Your testimony suggests a pretty large expenditure of
Federal dollars on ACGIH materials and conference. Do you have
any idea how much? Can you kind of give us a sense for what is
involved there?
Mr. Chajet. Congressman, I will try to get those numbers. I
have asked. I have sent requests. It is nearly impossible for
me to get those numbers. We have two pieces of paper that I am
happy to share with you. One is a printout and it came from
ACGIH that looks like about $540,000 for books over the course
of a couple of years. It is old.
I also have another piece of paper that is $54,000 purchase
order for books from one local OSHA office in 1 year. Those are
the only real pieces of evidence I have on how much they are
spending. But I can tell you that the Federal agencies are
supporting and giving credibility to these organizations, not
just with resources and dollars and money, but with time.
The chairperson of the ACGIH for the last 2 years has been
the OSHA regional administrator in Atlanta, Georgia. When you
try to find out how that time is allocated and whether it is
Federal payroll time or whether it is ACGIH time, they go to a
meeting; 2 hours is ACGIH time and the next 6 hours it is OSHA
business.
So I can't really give you an idea of the reality of it,
but I can tell you I think it is the largest source of income
of ACGIH and IARC.
Mr. Kline. OK. So we are lacking documentation. The staff
just gave me something here that is an order for supplies or
services, but I can see that that trying to get to the bottom
of that would be something this committee ought to involve
itself in.
Lawsuits are always a matter of some interest, and I would
say concern to me. Your testimony again references some
lawsuits that have relied on these TLVs. Can you expand on that
a little bit in the few minutes I have here?
Mr. Chajet. Congressman, I don't know how many hundreds or
thousands of lawsuits the TLVs have been introduced into. But I
can tell you that one great example is the TLVs for vibration,
which NIOSH rejected because they couldn't really member the
dose.
The vibration changes all the time when you are putting
your drill against hard wood or soft wood, and they can't
really measure the effect either, but yet there is a TLV for
it. The person that wrote that TLV, or claims to have written
it, as the ACGIH committee member testified 14 times for
plaintiffs.
How many times has that happened? I know that particular
event has probably happened hundreds or maybe thousands of
times.
Mr. Kline. OK. Thank you.
I yield back, Mr. Chairman.
Chairman Norwood. Thank you.
Mr. Owens. Mr. Chairman, I want to ask permission to submit
additional questions to our witnesses in writing for the
record.
Chairman Norwood. In writing? OK. Certainly, so ordered.
I have a couple of questions and I will be ready to
summarize and close. Mr. Owens, do you wish to do the same? You
will do yours in writing?
Mr. Owens. Yes.
Chairman Norwood. Ladies and gentlemen, we will submit in
writing and would greatly appreciate your prompt response, if
you would. But I still have a couple of things I need to get
off my back a little bit.
Liz, I know that there has been a lot of money spent by the
American Bakers Association. I am of the studies that you have
gone out and done in your organization. I don't know how much.
Do you know how much the association has spent on trying to get
good studies on actually what the peril ought to be in terms of
flour?
Ms. Marcucci. Yes, Mr. Chairman. The first study cost us
approximately $40,000, and we have just recently received a
quote to update the program again for about half that cost.
Chairman Norwood. Now, my question is, do you think we
could have gotten to an acceptable TLV with good science, that
everybody could have agreed on? Because I agree with Mr.
Ruddell, his answer to Mr. Owens, it is very important to pay
attention to these threshold limit values, for your own sake
and your own company's good. But why couldn't we come to some
consensus on a TLV? Or was it done in private where you had
absolutely no way of having any thoughts on the matter or any
input?
Ms. Marcucci. As I mentioned in my testimony, Mr. Chairman,
we were not given any of that information, and we were not
given the opportunity to have open discussion about TLVs. Of
course, we want TLVs in place to protect our employees, and we
will use the resources necessary to protect our employees. But
we request the opportunity to be able to have open dialog with
ACGIH and other groups that are setting these standards.
Chairman Norwood. Well, if they were to set the standard,
well, they did set the standard, do any of us know what science
they used or what science they do as an association to
determine the standard?
You get to go next. Yes, I am asking you. Where do they get
their scientific material or do they produce any scientific
material?
Ms. Marcucci. Mr. Chairman, I am not aware of where they
get their material. We were not given any information. If you
look at my written statement that was handed in, it explains
that we requested many times that information and were given
nothing.
Chairman Norwood. So you are living with a threshold limit
value of which somebody out there says this is good science,
but Lord knows you can't know who?
Ms. Marcucci. Correct.
Chairman Norwood. Dr. Mirer?
Dr. Mirer. The documentation for the TLV, which is a review
of all the science and an explanation for why they chose to set
the standard where it is----
Chairman Norwood. Excuse me. May I interrupt? A review of--
they review the literature? That is all they do?
Dr. Mirer. It is a review of the scientific--yes.
Chairman Norwood. All they do is look at other people's
work?
Dr. Mirer. What do you mean ``all they do''? They review
the scientific literature. And then OSHA reviews the scientific
literature.
Chairman Norwood. Do they do any science themselves? Do
they actually study any of it themselves? Or do they look at a
program done in Germany that nobody believes in anyway, but
none of us can know they looked at it?
Dr. Mirer. Well, first of all, you do know they looked at
it because they publish in advance with the notice of any
changes----
Chairman Norwood. I don't know any of that.
Dr. Mirer. They publish the documentation for the TLV,
which states each piece of information that they used to set
the standard and the logic connecting to it. No, they do not
themselves do the research. Neither does OSHA do any research
itself to support the scientific literature that is there.
Second, they do accept, and I have written those comments
myself, they do accept comments from anybody and they are
reviewed in the TLV committee.
Chairman Norwood. Does anybody in here agree with that?
That the government industrial hygienists accept anything from
anybody?
Dr. Mirer. Yes.
Chairman Norwood. I am asking the other three.
Mr. Chajet. Mr. Chairman, I can tell you that the author of
the copper limit and ACGIH said under oath that she did not
read the comments that were submitted. So whether you submit
them or not doesn't matter. They don't read them.
Other authors have said, yes, we cite that literature, but
we didn't read it. This is a very difficult process because you
don't get to find that out until you sue them. People like
Frank believe it is a scientific process, but it is not.
Chairman Norwood. Let me go back to Liz. She was not quite
through, but I did want to give you a shot into that.
Liz, finish up.
Ms. Marcucci. Thank you, Mr. Chairman.
The purpose of the SOMA study was to check ACGIH's facts
and science. SOMA totally dismissed ACGIH's science that this
was based on, that the TLVs were based on.
Chairman Norwood. So take it a step further. We have a non-
consensus standard-setting organization that has supposedly
nothing to do with the government, writing standards that the
government is accepting, and nobody can know anything about it,
and this gets more complex because states see OSHA accepting it
and what happens in the states?
Ms. Marcucci. From my presentation that I gave, we have had
bakeries that have received OSHA violations by state-run plans
for not following or not being within the ACGIH standards. So
they were documenting the flour dust levels against ACGIH
standards, which would not be correct.
Chairman Norwood. So standards around the nation, then, are
dictating to companies around the Nation what their threshold
limits ought to be, and it is done by people none of us know
who don't work for the government, and the Labor Department is
complicit in this illegal act.
Ms. Marcucci. Correct, Mr. Chairman.
Chairman Norwood. Did you get that?
Dr. Mirer. Can I correct one thing? We do know who writes
them because the members of the TLV committee and consultants
who participate in it are published in the book that they
publish every year.
The scientific comments come into the secretariat and are
distributed to the TLV committee members and they do not
disclose who is working on any particular material, although
the current rules require that the person working on the
material have no interest in it, whether it is a conflict of
interest or just an intellectual interest in the industry that
they are working on. But they do know who wrote them.
Chairman Norwood. Do they not want us to know that they are
being paid by the taxpayers during daylight? Do they not want
us to know they work for OSHA?
Dr. Mirer. They disclose the employer of everybody who is
working on it.
Chairman Norwood. So they don't mind us knowing they work
for OSHA?
Dr. Mirer. They fully disclose who everybody is working
for.
Chairman Norwood. So in daytime the taxpayers pay them at
OSHA and at nighttime they go over to this organization and
secretly write standards the rest of us have to live with, and
then take them back over there and sit at the same desk and
say, boy, this is a great standard. My buddy over there wrote
it. I know it is the way to go.
And none of us get any input at all, which is against the
OSH Act. I don't care what haz-com has to say in their
regulation. That is not in the OSH Act. I care about the fact
that OSH Act says consensus standards. And that is not what is
happening.
And let me just conclude by saying there is a serious
problem when these very same people who work for OSHA, the
Labor Department, go over at night and write these standards
that nobody gets any input to, and then the rest of us
taxpayers get to pay them for it.
Now, we don't know how much is being paid yet. We do know
there is a case in New England where $65,000 bought some of
their books, but I am going to find out exactly how much the
taxpayers are paying this non-government agency that is
breaking the law. We are going to find it out, and they are
going to stop.
Second, I agree with you that the PELs have to be updated.
We couldn't get labor and business to decide on whether the
table was round or square. Now, I tried very hard to get
grownups to sit down and be reasonable about changing these
PELs because you are right, they do need to be updated. I don't
think there is anybody in this room who doesn't know that.
Maybe Congress needs to act and do that if I can't get you all
to sit down and work this out.
But the American governmental industrial hygienists are
going to stop writing the laws of this land if it is the last
thing I do on this earth. They better get ready because I am
going to come after them, and I am going to keep coming after
them, and you guys over at OSHA and the Labor Department that
are letting this happen are next on that podium.
Under oath, we are going to find out why you are allowing
this to happen. It is not tricking anybody, and it is
absolutely against what Congress wants to happen. You are a
Federal agency; supposedly you are supposed to enforce the law.
Quit writing it. That is what you are trying to do and that is
what you are letting happen.
Now, I hope you are writing it down, Steve, because we
tried to fix this. Senator Enzi tried to fix this, and the
Labor Department stopped it, and it is now war.
Thank you all for coming.
Excuse my tirade, but I do get enough after a while.
Your time has been greatly appreciated.
And this meeting is now adjourned.
[Whereupon, at 11:54 a.m., the subcommittee was adjourned.]
[Additional materials submitted for the record follow:]
Letter Submitted by the National Ready Mixed Concrete Association
May 5, 2006.
Hon. Charles W. Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
Dear Chairman Norwood: The National Ready Mixed Concrete
Association (NRMCA) welcomes the opportunity to submit a statement
about the important work that the House Workforce Protections
Subcommittee is undertaking to deal with the issue of non-consensus
health standards. NRMCA represents one thousand three hundred ready
mixed concrete companies that employ seventy thousand men and women
living and working in every congressional district in the United States
and its territories.
Protecting employee health and safety is of paramount importance to
NRMCA and its member companies. To achieve this objective,
organizations must conduct work in an open environment, thereby
ensuring that interested parties have an opportunity to voice comment
and to provide expertise as the case may be. The current process in
which the American Conference of Governmental Industrial Hygienists
(ACGIH) sets threshold limit values (TLV) does not allow input from the
public. The lack of public input into the ACGIH standards setting
process combined with Occupational Safety and Health Administration
(OSHA) personnel having input into the ACGIH process is cause for
concern. Only by considering all relevant information contributed by
all interested parties can the most protective measures for employee
health be determined. NRMCA does not believe that the current process
allows for such consideration to occur.
NRMCA asks that the Subcommittee on Workforce Protections delve
into this matter more thoroughly to ascertain how the most appropriate
and protective TLVs and PELs can be determined. NRMCA believes that
deliberation of all relevant data on the issue of employee health
protection must occur to achieve the best work environment for
employees in ready mixed concrete manufacturing.
Very truly yours,
Thomas V. Harman, CSP,
Government Affairs, NRMCA.
______
Prepared Statement of the Independent Lubricant Manufacturers
Association
The Independent Lubricant Manufacturers Association (ILMA) submits
this statement for inclusion in the record of the Subcommittee on
Workforce Protection's April 27, 2006 hearing, examining the use of
non-consensus standards in workplace health and safety. The Association
appreciates this opportunity to share its views on this matter with the
Members of the Subcommittee.
Executive Summary
Protecting worker health and safety at the national level through
regulation is a daunting task. Over the years, federal agencies have
wisely looked to the private sector to help do the job properly. To
assist federal agencies better leverage the energy and know-how of the
private sector, Congress passed the ``National Technology Transfer and
Advancement Act of 1995'' (NTTAA). Pursuant to the NTTAA, as
supplemented by OMB Circular A-119, federal administrative agencies are
directed to take into account privately developed consensus standards
that relate to their regulatory activities. For a standard to be
consensus, the development process must have the following attributes:
(1) openness; (2) balance of interests; (3) due process; and, (4) an
appeals process.
While the reliance on consensus standards typically enhances the
regulatory efforts of federal agencies, the use of non-consensus
standards can hinder, confuse and, in some cases, damage such efforts.
The process that creates non-consensus standards often generates
inferior and possibly defective information. Premising regulatory
action on such inferior or defective information is not unlike building
a house at a choice location using the finest materials, but neglecting
to first lay a foundation. Without a solid foundation, a stylish new
home is expensive in the short term, and ultimately useless in the long
term.
The American Council of Government Industrial Hygienists (ACGIH)
recently developed a Threshold Value Limit (TLV) for ``Mineral Oil Used
in Metal Working.'' This TLV is a non-consensus standard. Because it
was developed in a closed, secretive process, ILMA asserts that it
contains a number of conceptual and measurement defects.
Notwithstanding the presence of these defects, the Occupational
Safety and Health Administration (OSHA) is poised to incorporate by
reference the TLV once it becomes finalized by ACGIH. Once incorporated
by reference, this TLV will instantly have legal status under OSHA
regulations and may be the foundation of enforcement decisions made by
OSHA and other administrative agencies. The defects in this TLV will
undermine any subsequent regulatory action premised on the TLV.
The fact that OSHA has incorporated non-consensus standards into
its regulatory programs for years is somewhat curious in and of itself,
given that the Occupational Safety and Health Act has an express
definition of ``national consensus standard.'' 29 USC Sec. 652 (3)(9).
There is a gap between this definition in OSHA's enabling legislation
and the Agency's practice of incorporating by reference non-consensus
standards. This gap is further accentuated by OSHA's continued reliance
on non-consensus standards despite Congress' mandate in the NTTAA.
Congressional action is needed to fill this gap. An efficient
solution would be to require OSHA to rely only on ``national consensus
standards'' as that term is already defined in the Occupational Safety
and Health Act and is consistent with the NTTAA.
Introduction of ILMA
The Independent Lubricant Manufacturers Association (ILMA),
established in 1948, is a national trade association of 135
manufacturing member companies. The overwhelming majority of these
companies are ``small businesses'' as defined by the Small Business
Administration. As a group, ILMA member companies blend, compound and
sell over 25 percent of the United States' lubricant needs and over 75
percent of the metalworking fluids (MWF) utilized in the country.
Independent lubricant manufacturers by definition are neither owned
nor controlled by companies that explore for or refine crude oil to
produce lubricant base stocks. Base oils are purchased from refiners,
who are also competitors in the sale of finished products. Independent
lubricant manufacturers succeed by manufacturing and marketing high-
quality, often specialized, lubricants. Their success in this
competitive market also is directly attributable to their tradition of
providing excellent, individualized service to their customers.
ILMA believes that non-consensus standards should have little or no
role in the development of workplace health and safety policies in the
United States, and that immediate legislative action is needed to
remedy the improper reliance that various federal agencies, especially
OSHA, place on these non-consensus standards.
Given the closed nature of their development, non-consensus
standards are substantially more susceptible to severe conceptual and
measurement defects than consensus standards developed in an open,
accountable and transparent process. Developing workplace health and
safety policy in the shadow of these defects presents unacceptable
threats to the health of American workers and creates costly burdens on
businesses (large and small) across many industries.
ILMA's Current Nexus with Non-Consensus Standard Setting Organizations
ACGIH has enjoyed a long track record of doing a tremendous amount
of good for the field of industrial hygiene and the protection of both
the American workforce and workforces around the globe. Since the
1940s, ACGIH developed TLV recommendations for hundreds of chemicals
and substances to which workers may be exposed in the workplace. For
many years, ACGIH developed TLVs using an open, transparent development
process based on sound scientific conclusions. All stakeholders in
worker health and safety matters (those from government, academia and
industry) had a seat at the table in developing TLVs. Unfortunately,
this balance among stakeholders is no longer the case.
Presently, ACGIH promulgates TLVs by way of committees that operate
in secret with anonymous authors for the TLVs. Though industrial
hygiene professionals in the private sector are still permitted to be
ACGIH members, they are categorically banned from serving on any TLV
committees. ACGIH further dampens industry input by routinely refusing
telephone and in-person meetings to discuss TLV development. In short,
industry has gone from having a seat at the table to being
systematically barred from the TLV development process. Though the
opportunity to provide written comments exists, there is no ``appeal''
process to challenge, question or even engage in a professional
discourse with the people responsible for developing and finalizing the
TLVs.
ILMA believes that by closing the TLV development process, ACGIH
has severely compromised the scientific value and legitimate utility of
TLVs. Although ACGIH remains a private entity and has the right to
conduct its membership, internal governance and TLV development
procedures as it sees fit, a massive problem is created by the
unwarranted credence that federal agencies, namely OSHA, give to
ACGIH's TLV development process and how these agencies currently use
newly-generated TLVs as a substitute for their own notice and comment
rulemaking.
It is instructive for the Subcommittee to examine ACGIH's statement
of position on its TLV development process at http://www.acgih.org/tlv/
PosStmt.htm. ACGIH acknowledges that it does not evaluate the economic
and technical feasibility of its recommendations or the availability of
acceptable methods to determine compliance. ACGIH also points out that
it does not follow a consensus process as the TLV ``does not represent
a consensus position that addresses all issues raised by all interested
parties.'' While ACGIH makes these and other disclaimers about its TLV
development process and the use of its TLVs, the group conveniently
ignores that it knows how its TLVs are used. Moreover, ILMA suggests
that the Subcommittee ask OSHA how much taxpayer money is spent each
year on ACGIH publications, including the TLV handbook, and staff
involvement in the organization.
There is a direct connection between the closed-process, secret
development of ACGIH TLVs and affirmative worker health and safety
regulatory responsibilities that American employers have under federal
law. Under the Hazard Communication (HazCom) Standard, OSHA
automatically adopts the latest version of ACGIH's TLV list every year
and requires that manufacturers, including ILMA members, list the
latest TLV limits on any Material Safety Data Sheet (MSDS) that they
generate for use in the workplace. OSHA also uses new TLVs as the basis
for, and to support, rulemaking actions that it initiates. OSHA can
issue citations to employers under its ``General Duty Clause'' for
violations of TLVs.
More important than the fact that the TLV development process and
subsequent incorporation into U.S. worker health and safety regulations
is patently unfair and fundamentally inconsistent with the premise of
federal regulations (notice and the opportunity to comment and
ultimately appeal), this non-consensus process generates defective
decisions that have the potential to compromise the health and safety
of the very workers the TLVs are designed to help as well as creating
expansive economic burdens on the business community, particularly the
manufacturing sector. To illustrate, consider ACGIH's efforts to create
a new TLV for mineral oil and mineral oil used in metalworking
operations.
ACGIH's Proposed TLV for Mineral Oil--The Metalworking Fluid Industry's
Perspective
On February 3, 2006, ACGIH released a draft version of a TLV
recommendation for ``Mineral Oil Used in Metal Working'' and ``Mineral
Oil, Pure, Highly and Severely Refined.'' When used in metalworking
situations, the draft TLV proposes a reduction from 5 mg/m3 to 0.2 mg/
m3, time-weighted average (TWA). For ``pure'' mineral oil, the TLV
remains at the current 5 mg/m3 TLV-TWA. In both cases ACGIH classifies
highly and severely refined mineral oil as non-carcinogenic (A-4).
In other words, ACGIH is proposing to single-out mineral oil when
used in metalworking operations and to reduce the TLV in those
circumstances by a factor of 25.
As noted above, ILMA members manufacture more than 75 percent of
all MWFs used in the United States. The scientists and industrial
health and safety professionals that work for ILMA member companies
likely account for the highest concentration of expertise on MWFs in
the nation, if not the world. Because of ACGIH's closed and secretive
TLV development process, ILMA's members had no role in developing the
proposed mineral oil TLV.
From ILMA's preliminary assessment of the proposed TLV, there also
appears to be a number of fundamental defects that are: (1)
definitional; (2) conceptual, and (3) measurement/quantitative in
nature. There is also a lack of context for the proposed TLV. These
defects preclude the proposed TLV from presenting any positive value in
the effort to protect worker heath and safety and will place an
unconscionable economic and unnecessary regulatory burden on thousands
of businesses, large and small.
Definitional Defects
MWFs are used in the processes of metal shaping, cutting and
grinding. MWFs are also used to cool and lubricate in the metalworking
environment. Though there are thousands of MWF products, most fall into
four basic categories: (1) straight or neat oils; (2) soluble oils; (3)
semi-synthetics; and, (4) synthetics.\1\ Three of the four general
categories of MWFs, straight, soluble and semi-synthetics all contain
some quantity of mineral oil. Some have quite a bit of mineral oil
(straight oil can have upwards of 90 percent ), and some have very
little mineral oil (semi-synthetics concentrates can have as little as
5 percent), especially after the concentrates are diluted before use.
---------------------------------------------------------------------------
\1\ Straight oils, used in today's MWFs typically consist of
severely-solvent refined or severely-hydrotreated petroleum oil, or
other oil of animal, vegetable or synthetic origin used singly, or in
combination with performance additives. A movement toward exclusive
industry use of severely refined base oil began in the 1960s and was
complete by the mid-1980s, especially with the promulgation of the
Hazard Communication Standard by the Occupational Safety and Health
Administration.
Soluble oils contain severely-refined based oil, emulsifying agents
and performance additives. The base oil content ranges from 30 percent
to 85 percent, and these products, sold in concentrate, are then
diluted with water at ratios ranging from 1:5 to 1:40.
Semisynthetics contain an even lower amount of severely refined
base oil, maybe 5 percent to 30 percent (in the concentrate), and a
higher fraction of emulsifiers and water (up to 50 percent of the
concentrate). In concentrate, semisynthetics are translucent and are
typically diluted with water at ratios ranging from 1:10 to 1:40.
Synthetics contain no mineral oil whatsoever.
---------------------------------------------------------------------------
Though the proposed TLV does not define ``Mineral Oil Used in Metal
Working,'' it notes that the proposed TLV of 0.2 mg/m3 is ``recommended
for occupational exposure to mineral oil aerosols in metal working
operations where additives and metal or microbial contaminants are
present.'' This statement appears to suggest that any MWF that contains
some unspecified amount of mineral oil would be subject to the proposed
TLV for mineral oil. Indeed, virtually all metalworking fluid products
contain performance additives and, as a consequence of being used,
contain very small pieces of the metal being ``worked.'' Though ACGIH's
stated goal is to reduce the alleged health impacts of mineral oil
mist, the practical impact is to regulate thousands of metalworking
products, some of which contain only a small fraction of highly refined
mineral oil.
There is a major ``disconnect'' between ACGIH's stated purpose for
proposing the new TLV (reduced occupational exposure to mineral oil
mist) and the practical effect (setting a single TLV for a multitude of
industrial products by way of an overly broad definition). The approach
completely ignores not only the plurality of metalworking fluid
products, but also the even larger plurality of industrial applications
of metalworking fluid products. Furthermore, the practical effect of
the definition (setting a TLV for most metalworking fluids regardless
of mineral oil content) is in direct conflict with ACGIH's decision to
limit TLV documentation to studies on straight mineral oil used in
metalworking operations only, and to expressly exclude studies on the
alleged heath effects of metalworking fluids. ACGIH, in other words,
has proposed a de facto TLV for metalworking fluids while
simultaneously and expressly excluding all studies of metalworking
fluid.
ILMA believes that ACGIH's proposed definition of ``Mineral Oil
Used in Metal Working'' simply could not be generated by an
organization that relies on an open, consensus-based process for
developing standards. The definitional inconsistencies between intended
purpose and practical effect, not to mention the ``Catch-22''
documentation problem would just not make it through the brainstorming
phase, let alone all the way to a proposed standard.
Conceptual Defects
The TLV distinguishes between ``pure'' mineral oils and mineral
oils used in metal working operations. The proposed TLV for ``pure''
mineral oil 5 mg/m3 is twenty-five times higher than the proposed TLV
for mineral oil used in metalworking, i.e., 0.2 mg/m3. ACGIH premises
this distinction primarily on the presence of additives in metalworking
fluids.\2\ The existence of metals and microbial contaminants is also
cited.
---------------------------------------------------------------------------
\2\ American Conference of Governmental Industrial Hygienists,
Draft Total Limit Value Documentation, Mineral Oil (2006) at 1.
---------------------------------------------------------------------------
The proposed TLV also contains the following language:
A wide range of additives are used at concentrations ranging from a
few parts per million to about 20% to modify the physical and/or
chemical characteristics of mineral base oils in order to provide the
performance requirements of specific applications. Additives are often
proprietary materials and composition details will vary between
individual suppliers.\3\
---------------------------------------------------------------------------
\3\ Id. at 2.
---------------------------------------------------------------------------
This distinction suggests that the alleged health effects of
mineral oil in metalworking operations are due to constituents other
than highly refined mineral oil--the additives, microbial contaminants
and small pieces of metal commonly known as ``fines'' or ``swarfs''
generated by the metalworking process. ACGIH identifies neither
additives nor microbial contaminants with any specificity, other than
noting that these things ``vary.''
It stands to reason that if ACGIH's hypothesis is that constituents
``in'' or ``added'' to mineral oil when mineral oil is used in
metalworking are the source of the alleged health effects, most of
their attention should be focused on those constituents. Rather than
dramatically lowering the TLV for mineral oil when used in
metalworking, efforts should be undertaken to at least identify which
constituents or combination of constituents (be they additives,
microbial contamination or metal fines or swarfs) could be associated
with any of the alleged occupational health effects. Once identified,
suspect additives or microbial contamination phenomena should then be
studied directly. This is an important point: by proposing to
dramatically lower the TLV for mineral oils used in metalworking, ACGIH
misses the significant opportunity to focus the resources of the
organization on what might be truly causing the adverse health effects
sometimes observed: microbial contamination.
This conceptual bungling is not merely a theoretical or academic
problem. To the extent that an additive, a combination of additives or
microbial contamination actually does present an occupational exposure
risk, a TLV for mineral oil used in metalworking does nothing to
protect against other occupational exposures to the same additives or
combination of additives. More specifically, the same additives or
contaminants could be found in synthetic metalworking fluids or
metalworking fluids containing animal or vegetable oil--neither of
which contain any mineral oil.
ILMA believes that these conceptual defects, just like the
definitional defects would have been quickly rooted-out and corrected
to the extent that ACGIH's TLV process was open and transparent rather
than a closed, non-consensus process.
Measurement/Quantitative Defects
There are a number of critical measurement and quantitative
interpretation errors in the proposed TLV that would not exist if the
development process were open.
First, the test method contemplated to assure compliance with the
new TLV does not just measure mineral oil; it measures ``inhalable
particulate mass.'' This test does not directly and specifically
measure oil mist by itself, but rather a collection of general
particulates, oil mist, and any organic compound that adheres to the
sample and measuring equipment.
Second, reliable measurements of total particulate at a level of
0.2 mg/m3 are not statistically feasible using standard measurement
procedures. In other words, no generally available test procedure
exists that would permit an industrial hygienist to even know whether a
0.2 mg/m3 is being achieved in any occupational setting. Conceptually,
this is not unlike a state trooper using a radar device that can
determine vehicle speed with an accuracy of +/- 5 miles per hour
deciding to issue a speeding ticket for a motorist clocked at 66 mph in
a 65 mph zone. The decision to set an exposure limit below what
existing tests can tentatively measure would not pass muster in a true
consensus standard setting process. Setting an exposure limit beyond
what can be measured using state-of-the-art testing procedures is, in a
word, silly.
Lack of Context for TLV Development
In addition to the manifold defects described above, ACGIH appears
to have also largely ignored the fruits of an intensive discourse among
the federal government, academia, industry and the courts regarding
MWFs that has taken place over the past 13 years.
In 1993, the United Auto Workers (UAW), who is scheduled to testify
at today's hearing, petitioned OSHA to regulate more stringently
metalworking fluids and the components contained in the fluids (UAW
sought to lower the Permissible Exposure Limit (PEL) for oil mist
(mineral oil) from 5 mg/m3 to 0.5 mg/m3). The petition was
unsuccessful, and UAW was also unsuccessful in asking the courts to
force OSHA to take any regulatory action on MWFs. UAW v. Chao, 361 F.3d
249 (3rd Cir. 2004).
Concurrent with UAW's legal efforts, the federal government and
industry continued to focus considerable attention on MWFs. Throughout
the 1990s, industry, labor and the federal agencies partnered on a
series of joint committees, seminars, meetings and workshops to discuss
and develop better ways to understand the potential occupational risks
associated with MWFs and voluntary strategies to address those
potential risks. Notable efforts included:
Multi-day symposiums in 1995 and 1997 on the metalworking
environment, respiratory health and metalworking systems management
jointly sponsored by NIOSH and American Automobile Manufacturers
Association (AAMA). The events drew hundreds of people, including those
from labor, government and other stakeholders;
Organizational Resource Counselors (ORC), a human resource
and health/safety consulting firm, convened a metalworking fluid task
force in 1996 and published a comprehensive ``Metal Removal Fluids
Management Guide'' in 1997 to be used by machine operators;
ILMA formed the Metalworking Fluids Product Stewardship
Group (MWFPSG) and joined ORC's efforts to issue a second edition of
the Metal Removal Fluids Management Guide; and
ACGIH held a two-day scientific symposium entitled
``Health Effects of Mineral Oil Mist and Metalworking Fluids
Symposium'' in 2002, which was co-sponsored by ORC Worldwide, API, and
the American Industrial Hygiene Association.
None of these above summarized efforts seem to have been
incorporated into ACGIH's draft TLV for mineral oil used in
metalworking, especially many of the peer-reviewed papers presented at
the 2002 ACGIH symposium.
The Ripple Effect--The Challenges That The Work Force and Business
Community Face When Federal Agencies Incorporate Defective Non-
Consensus Standards into Their Regulations
In the event that the proposed TLV for mineral oil used in
metalworking is finalized by ACGIH and subsequently adopted by OSHA, a
chain reaction of needlessly costly events would take place.
First, all businesses that manufacture or use metalworking fluid
that contains mineral oil as either a base or ingredient will be
required to revise their MSDS information for those products. Costs
associated this revision would be, on average, in the low six figures
for each MWF manufacturer.
Second, businesses that use such metalworking fluids in their
manufacturing operations (the customers of ILMA members) would be
pressured to comply with the new dramatically lower TLV. One strategy
would be to invest in costly new engineering controls in their
facilities in an effort to try to meet the new impractical TLV. Such
efforts would require expensive new machines or retrofitting existing
machines, and the costly installation or retrofitting of ventilation
systems. Prohibitive costs across the industry would be substantial and
would likely exceed the capabilities of many smaller companies. Another
option would be for customers to switch to synthetic or vegetable-based
metalworking fluid products, which tend to be relatively more expensive
than metalworking fluids that contain mineral oil. Though some ILMA
member companies that specialize in synthetic metalworking fluids would
likely have some benefit, the change would cause palpable market
disruption in the industry. The third option for many customers of ILMA
members would be to move their manufacturing operations overseas.
In addition to these immediate steps, insurance rates could rise in
anticipation of personal injury claims premised on the defective TLVs.
Legal costs associated with such actions would burden these
manufacturing businesses even further.
Putting a dollar figure on these events is difficult, especially
given the intangible costs of industry's collective understanding of
the confusing aspects of the TLV. Nevertheless, some of the estimates
generated by the OSHA Metalworking Fluid Standards Advisory Committee
process from 1997 through 1999 may prove instructive. During this
process, the costs to retrofit existing automobile manufacturing
facilities to achieve an exposure level for metalworking fluid of 0.5
mg/m3 were estimated to be about $1.9 billion for what was then the
U.S. ``Big Three,'' on top of the estimated $1 billion voluntarily
spent on exposure reduction projects. Given that one estimate suggested
that large automotive machining plants represented about 10% of the
overall metalworking, it was estimated that the costs to achieve a
level of 0.5 mg/m3 would be about $19 billion (in 1998 dollars). The
costs to achieve a 0.2 mg/m3 TLV would be significantly higher.
The above-summarized defects are so serious as to render the
proposed TLV effectively useless in any effort to improve occupational
health and safety in the context of metalworking. Therefore, all monies
spent and all actions undertaken by industry in response to this TLV
being finalized and adopted by reference in OSHA's HazCom Standards
will be money and time wasted. Further, because the focus is on mineral
oil and not the additives or contaminants that might be truly causing
the problem, dollars spent to retrofit existing machine tools with new
engineering controls may still not yield a workplace setting fully
protective of worker health and safety. The mistake will be measured in
billions of dollars.
Possible Solutions to the Problem of the Federal Government's Improper
Reliance on Non-Consensus Standards
In the scientific and research community, concepts and opinions
(whatever the subject matter) that are not subject to challenge and
peer-review by other scientists and researchers through an open,
transparent process are generally accorded very little value. For these
reasons, non-consensus standards, like TLVs now developed by ACGIH
should be accorded very little value and should have minimal influence
over industrial hygiene matters because they are patently non-consensus
standards.
OSHA's tradition of annually adopting ACGIH's new TLV list has the
practical effect of assigning an unwarranted and disproportionate
importance to ACGIH's TLVs and sets into motion an absurd and needless
``fire drill'' for businesses impacted by the new TLVs and fosters an
utterly false sense of security from the standpoint of occupational
health and safety, because the TLVs are premised on the interpretation
and evaluation of scientific data in a non-consensus setting.
If Congress enacted legislation (such as the provisions found in
Senator Enzi's (R-WY) suite of OSHA reform bills, (S. 2066 to be
specific)) that prohibits OSHA from adopting non-consensus standards, a
number of very positive developments could take place.
First, in an effort to keep their TLV tradition alive, we suspect
that ACGIH would voluntarily take efforts to reform the TLV development
process so that it fit the notion of a ``national consensus standard''
as that term is defined in the Occupational Safety and Health Act
(codified at 29 USC Sec. 652 (3)(9)). OSHA would then also be able to
rely on ACGIH's efforts in the manner contemplated by Congress in the
NTTAA.
Second, by eliminating the monopoly that ACGIH has on developing
occupational health and safety occupational exposure limits, other
private organizations would have a legitimate opportunity to generate
competing consensus standards. This competition would undoubtedly
improve the integrity and quality of occupational health and safety
data and the thoughtful application of the same in an effort to truly
protect the American worker.
Third, and most importantly, the development of patently defective
standards, such as the ACGIH TLV for mineral oil used in metalworking
and other TLVs would no longer have artificially fertile ground in
which to take root, and grow unchecked into flawed occupational
exposure limits.
Conclusion
ILMA greatly appreciates the Subcommittee's continued interest in
the topic of the use of non-consensus standards by federal agencies and
respectfully urges that the Subcommittee take legislative action to
assure that when federal agencies do use standards generated by the
private sector, the standards are developed in an open, consensus
process.
We are, of course, happy to respond to any questions this statement
may have raised.
______
Letter Submitted by David Felinski, Safety Director, the Association
for Manufacturing Technology, Secretariat, ANSI B11 Series Reports
April 27, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education
and the Workforce, Rayburn House Office Building, Washington,
DC.
After attending this morning's House of Representatives hearing
(Subcommittee on Workforce Protection--non-voluntary consensus
standards), I take strong exception to one of the comments Dr. Mirer
(International UAW) made during his testimony. Although he was
generally speaking about consensus standards, he specifically mentioned
``machine tool standards'' and made the following assertion that ``they
are not really consensus standards because it's just the users and the
designers sitting around the table writing them.''
I am the Safety Director for the Association for Manufacturing
Technology (AMT). I am also the U.S. TAG Administrator to two separate
ISO Technical Committees (in other words, I provide the U.S input into
the ISO standards process in two separate committees), and I am the
ANSI-accredited Secretariat and Standards Developing Organization (SDO)
to over thirty American National (consensus) Standards and Technical
Reports (ANSI B11 Series) on the subject of machine tool safety,
ergonomics, risk assessment, control reliability, noise measurement,
mist control and related topics. As Secretariat and Administrator, it
is my role to ensure that we rigorously adhere to the ANSI (and ISO)
developmental principles of Balance, Openness, Due Process, Consensus,
and a mechanism for Appeals. I can assure you (and so can our ANSI
auditor) that we maintain our accreditation precisely because we take
those principles VERY seriously and adhere to them. Dr. Mirer's
assertion is unfounded (certainly in our case, and I suspect it has
little or no merit for the 203 other ANSI-accredited SDOs, but you
should probably verify that with ANSI directly).
I am attaching a copy of our ANSI B11 Accredited Standards
Committee roster; you will note that we have quite a variety of
interest groups besides just ``users'' and ``designers'' including both
OSHA and NIOSH. The International UAW used to be a Member of the B11
ASC until their representative retired a few years ago. We have been
urging them to replace that person on the B11 ASC ever since (including
my direct appeal to Dr. Mirer at the conclusion of today's hearing).
I should very much appreciate it if this ``correction'' to Dr.
Mirer's unfortunate misstatement about the consensus standards process
is entered into today's formal procedural record. Thank you.
Sincerely yours,
David Felinski,
ANSI B11 Secretariat.
B11 ASC 2006
----------------------------------------------------------------------------------------------------------------
Member Interest
Company Delegate Alternate Category
----------------------------------------------------------------------------------------------------------------
AIAA--Aerospace Mr. Willard J. Wood, ARM Mr. Lance E. Chandler Trade Association
Industries Association Safety Administrator Equipment Engineer
of America The Boeing Company The Boeing Company
PO Box 3707 P.O. Box 3707 M/C: 50-51
MC 5C-04 Seattle, WA 98124-2207
Seattle, WA 98124-2207 Phone: 253-846-4018
Phone: 253-931-6491 Fax: 253-846-4149
Fax: 253-931-2747 Email: lance.e.chandler@ boeing
Email: willard.j.wood@ boeing.c .com
om
----------------------------------------------------------------------------------------------------------------
AEC--Aluminum Extruders Mr. Doug Hart ............................... Industrial/Commercial
Council EHS Manager
Mr. Melvin Mitchell Pennex Aluminum Company
Safety Director 50 Community Street
MI Metals P.O. Box 100
301 Commerce Boulevard Wellsville, PA 17365
Oldsmar, FL 34677 Phone: 717-432-9647 x. 322
Phone: 813-855-5695 x. Fax: 717-432-4056
231 Email: dhart@ pennexaluminum.co
Fax: 813-855-6677 m
Email: mmitchell@ mimet
als.com
----------------------------------------------------------------------------------------------------------------
AIAG--Automotive Mr. Ron Tillinger Mr. Kent Lenzen Trade Association
Industries Action OH&S Program Manager OH&S Program Manager
Group AIAG AIAG
26200 Lahser 26200 Lahser
Suite 200 Suite 200
Southfield, MI 48034 Southfield, MI 48034
Phone: 248-358-9777 Phone: 248-358-9777
Fax: 248-358-3253 Fax: 248-358-3253
Email: rtillinger@ aiag.org Email: klenzen@ aiag.org
----------------------------------------------------------------------------------------------------------------
ASSE--American Society Mr. Bruce W. Main P.E. Mr. George V. Karosas Professional Society
of Safety Engineers President Senior Consultant
Design Safety Engineering, Inc. 1100 West 31st Street
PO Box 8109 La Grange Park, IL 60526
Ann Arbor, MI 48107 Phone: 708-352-9430
Phone: 734-483-2033 Fax: 708-352-9432
Fax: 734-483-9897 Email: gvkarosas@ esi-il.com
Email: bruce@ designsafe.com
----------------------------------------------------------------------------------------------------------------
AMT--The Association Mr. Russell A. Bensman Mr. Dan Soroka Manufacturer
for Manufacturing Staff Engineer Director of Workholding Mr. Alan Metelsky
Technology The Minster Machine Company Engineering Controls Engineering
240 W. 5th Street Hardinge Inc. The Gleason Works
Minster, OH 45865-0120 P.O. Box 1507 1000 University Ave.
Phone: 419-628-1765 Elmira, NY 14902 Rochester, NY 14692
Fax: 419-628-2222 Phone: 607-378-4423 PH: 585-784-6927
Email: bensmanr@ minster.com Fax: 607-735-0650 Fax: 585-241-4047
Email: dsoroka@ hardinge.com Email: ametelsky@
gleason.com
----------------------------------------------------------------------------------------------------------------
The Boeing Company Mr. Don R. Nelson Mr. Robert Eaker, PE, CSP User
Safety & Health Administrator Safety & Health Administrator
The Boeing Company The Boeing Company
P.O. Box 3105 M/C: 031-AB10 2223 Field Avenue, N.E.
Anaheim, CA 92803-3105 Renton, WA 98059
Phone: 714-762-3910 Phone: 425-891-9517
Fax: 714-762-0387 Fax: 425-271-6723
Email: don.r.nelson@ boeing.com Email: robert.j.eaker@ boeing.c
om
----------------------------------------------------------------------------------------------------------------
CMI--Can Manufacturers Mr. Geoff Cullen Ms. Jenny Day Industrial/Commercial
Institute Director of Government Director Recycling
Relations Can Manufacturers Institute
Can Manufacturers Institute 1730 Rhode Island Avenue NW
1730 Rhode Island Avenue NW Site 1000
Site 1000 Washington, DC 20036
Washington, DC 20036 Phone: 202-232-4677
Phone: 202-232-4677 Fax: 202-232-5756
Fax: 202-232-5756 Email: jday@ cancentral.com
Email: gcullen@ cancentral.com
----------------------------------------------------------------------------------------------------------------
DEERE & Co. Mr. Gary D. Kopps Ms. Ellen Blanshan User
Manager, Occupational Safety Occupational Safety Specialist
Deere & Company--Technical Deere & Company--Technical
Center Center
Occupational Safety Department One John Deere Place
One John Deere Place Moline, IL 61265-8098
Moline, IL 61265-8098 Phone: 309-765-5691
Phone: 309-765-5155 Fax: 309-765-9860
Fax: 309-765-9860 Email: blanshanellen@ johndeere
Email: koppsgaryd@ johndeere.co .com
m
----------------------------------------------------------------------------------------------------------------
GM--General Motors Mr. Michael Taubitz Mr. Dallas Gatlin User
Global Regulatory Liaison Mgr. Engineering Integration
General Motors Corporation H&S
PCC Central General Motors Corporation
2000 Centerpoint Pkwy. PCC Central
M/C/483-520-194 2000 Centerpoint Pkwy.
Pontiac, MI 48341-3147 M/C 583-520-098
Phone: 248-753-5771 Pontiac, MI 48341-3147
Fax: 248-753-5831 Phone: 248-753-4761
Email: michael.taubitz@ gm.com Fax: 248-753-1004
Email: dallas.w.gatlin@ gm.com
----------------------------------------------------------------------------------------------------------------
MBMA--Metal Building Mr. Charles M. Stockinger Mr. Charles E. Praeger Trade Association
Manufacturers Executive Director Metal Building Manufacturers
Association Metal Building Manufacturers Assn.
Assn. 1300 Sumner Avenue
1300 Sumner Avenue Cleveland, OH 44115-2851
Cleveland, OH 44115-2851 Phone: 216-241-7333
Phone: 216-241-7333 Fax: 216-241-0105
Fax: 216-241-0105 Email: mbma@ mbma.com
Email: mbma@ mbma.com
----------------------------------------------------------------------------------------------------------------
MPIF--Metal Powder Mr. Dennis R. Cloutier, CSP Ms. Teresa F. Stillman Trade Association
Industries Federation President Senior Mgr., Stand. and Tech.
Cloutier Consulting Services Services
6624 Parkland Avenue Metal Powder Industries
Cincinnati, OH 45233 Federation
Phone: 513-941-2917 105 College Road East
Fax: 513-941-9727 Princeton, NJ 08540-6692
Email: dennis@ cloutierconsulti Phone: 609-452-7700
ng.com Fax: 609-987-8523
Email: tstillman@ mpif.org
----------------------------------------------------------------------------------------------------------------
NIOSH--National Mr. Richard S. Current, PE Mr. James R. Harris Regulatory Agency
Institute for Research Engineer Safety Engineer
Occupational Safety NIOSH NIOSH
and Health Safety Research CDC 1095 Willowdale Road
1095 Willowdale Road Morgantown, WV 26505-2888
Morgantown, WV 26505-2888 Phone: 304-285-6120
Phone: 304-285-6084 Fax: 304-285-6047
Fax: 304-285-6047 Email: jharris@ cdc.gov
Email: rcurrent@ cdc.gov
----------------------------------------------------------------------------------------------------------------
OSHA--Occupational Mr. Ken Stevanus Mr. Robert Bell Regulatory Agency
Safety and Health Mechanical Engineer Mechanical Engineer
Administration 200 Constitution Ave. NW 200 Constitution Avenue, NW
Room N3609 Washington, DC 20210
Washington, DC 20210 Phone: 202-693-2053
Phone: 202-693-2260 Fax: 202-693-1663
Fax: 202-693-1663 Email: bell.rb@ dol.gov
Email:stevanus.ken@ dol.gov
----------------------------------------------------------------------------------------------------------------
PCI Mr. John W. Russell Mr. Keith Lessner Insurance
Property Casualty Technology Director Vice President
Insurers Liberty Mutual Property Casualty Insurers
2100 Walnut Hill Ln.,Ste. 100 2600 South River Road
Irving, TX 75002 Des Plaines, IL 60018
Phone: 800-443-2692-x2880 Phone: 847-297-7800
Fax: 972-518-1923 Fax: 847-297-5064
Email: john.russell@ libertymut Email: keith.lessner@ pciaa.net
ual.com
----------------------------------------------------------------------------------------------------------------
PMMI--Packaging Mr. Charles F. Hayes Ms. Maria Ferrante Manufacturer
Machinery Director of Technical Services Director of Workforce
Manufacturers PMMI Development
Institute P.O Box 678 PMMI
Marshall, MI 49068 Suite 600
Phone: 269-781-6567 4350 N Fairfax Drive
Fax: 269-781-6966 Arlington, VA 22203
Email: cfhayes@ voyager.net Phone: 703-243-8555
Fax: 703-243-8555
Email: maria@ pmmi.org
----------------------------------------------------------------------------------------------------------------
PILZ--Pilz Automation Ms. Roberta Nelson Shea Mr. Lee Burk Manufacturer
Safety, LP General Manager Training Manager
Pilz Automation Safety, LP Pilz Automation Safety, LP
7150 Commerce Boulevard 7150 Commerce Boulevard
Canton, MI 48187 Canton, MI 48187
Phone: 734-354-0272 Phone: 734-354-0272
Fax: 734-354-3355 Fax: 734-354-3355
Email: R.NelsonShea@ pilzUSA.co Email: L.Burk@ pilzUSA.com
m
----------------------------------------------------------------------------------------------------------------
PMA--Precision Mr. William E. Gaskin Ms. Christen A. Carmigiano Manufacturer
Metalforming President Government Affairs Manager
Association Precision Metalforming Precision Metalforming
Association Association
6363 Oak Tree Boulevard 6363 Oak Tree Boulevard
Independence, OH 44131 Independence, OH 44131
Phone: 216-901-8800 x121 Phone: 216-901-8800
Fax: 216-901-9190 Fax: 216-901-9190
Email: wgaskin@ pma.org Email: ccarmigiano@ pma.org
----------------------------------------------------------------------------------------------------------------
PSDMA--Presence Sensing Mr. James V. Kirton Mr. Michael S. Carlson Distributor/Retailer
Device Manufacturers Kirton Industrial Eq. LLC. Safety Products Marketing
Association 25 Skilton Rd. Manager
Watertown, CT Banner Engineering Corporation
Phone: 860-417-3097 9714 Tenth Avenue North
Fax: 860-417-3097 Minneapolis, MN 55441
Email: jimkirton@ optonline.net Phone: 763-593-3934
Fax: 763-544-3213
Email: mcarlson@ bannerengineer
ing.com
----------------------------------------------------------------------------------------------------------------
RIA--Robotic Industries Mr. Jeff Fryman Ms. Roberta Nelson Shea Manufacturer
Association Director, Standards Development General Manager
Robotic Industries Association Pilz Automation
PO Box 3724 7150 Commerce Blvd.
Ann Arbor, MI 48106-0000 Canton, MI 48187
Phone: 734-994-6088 Phone: 734-354-0272 x.208
Fax: 734-994-3338 Fax: 734-354-3355
Email: jfryman@ robotics.org Email: R.NelsonShea@ pilzusa.co
m
----------------------------------------------------------------------------------------------------------------
Rockwell--Rockwell Mr. Steven Dukich Mr. Jay Tamblingson Manufacturer
Automation Senior Commercial Engineer Manager, Application
Rockwell Automation Engineering
2 Executive Drive Rockwell Automation
Chelmsford, MA 01824 1201 South Second Street
Phone: 978-446-3214 Milwaukee, WI 53204
Fax: 978-446-3322 Phone: 414-382-4556
Email: srdukich@ ra.rockwell.co Email: jetamblingson@ ra.rockwe
m ll.com
----------------------------------------------------------------------------------------------------------------
STI--Scientific Mr. Frank Webster Mr. Chris Soranno Distributor/Retailer
Technologies Vice President, Engineering Machine and Process Safety
Incorporated Scientific Technologies, Inc. Engineer
6550 Dumbarton Circle STI Machine Service, Inc.
Fremont, CA 94555 4501 Mackall Road
Phone: 510-608-3443 South Euclid, OH 44121-4239
Fax: 510-608-7443 Phone: 216-224-5467
Email: fwebster@ wbstr.com Fax: 440-794-7069
Email: chris--soranno@ sti.com
----------------------------------------------------------------------------------------------------------------
SMACNA--Sheet Metal and Mr. Michael McCullion Mr. Roy Brown Industrial/Commercial
Air Conditioning Director of Safety and Health Safety Director
Contractors National SMACNA, Inc. SMARCA
Association 4201 Lafayette Center Drive 1405 Lilac Drive North
Chantilly, VA 20151-1209 Suite 100
Phone: 703-995-4027 Minneapolis, MN 55422
Fax: 703-803-3732 Phone: 763-593-0941
Email: mmccullion@ smacna.org Fax: 763-593-0944
Email: roy@ smarca.com
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TMA--Tooling and Mr. Daniel Kiraly ............................... Manufacturer
Manufacturing Director of Education
Association Tooling & Manufacturing
Association
1177 South Dee Road
Park Ridge, IL 60068
Phone: 847-825-1120 x346
Fax: 847-825-0041
Email: dkiraly@ tmanet.com
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TMMNA--Toyota Motor Mr. Barry Boggs Mr. Thomas Huff User
Manufacturing North Assistant Manager-Safety Manager, Safety Eng. Support
America Engineering Support Toyota Motor Manufacturing
Toyota Motor Manufacturing North America
North America 25 Atlantic Avenue
1001 Cherry Blossom Way Mail CodePESAF-NA
M/C:PESAF-NA/K Erlanger, KY 41018
Georgetown, KY 40324 Phone: 859-746-4203
Phone: 502-868-2367 Fax: 859-746-4069
CELL: 859-653-3484 Email: tom.huff@ tema.toyota.co
Fax: 502-868-2829 m
Email:barry.boggs@ tema.toyota.
com
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Prepared Statement of Andrew P. Morriss, Galen J. Roush Professor of
Business Law & Regulation, Co-Director of Center for Business Law &
Regulation, Case Western Reserve University School of Law, Senior
Scholar, Mercatus Center at George Mason University*
Chairman McKeon and Members of the Committee, thank you for
inviting me to submit testimony on the use of non-consensus standards
in workplace safety and health regulation. I am a professor of law and
an economist with over forty published articles and book chapters,
largely on regulatory issues. I have recently researched the use of
non-consensus standards in OSHA rulemaking for a forthcoming article in
the Administrative Law Review (Spring 2006), with coauthor, Susan
Dudley, Director of the Regulatory Studies Program at the Mercatus
Center at George Mason University. I have attached a draft of that
article, ``Defining What to Regulate: Silica & the Problem of
Regulatory Categorization,'' for the record.
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*Affiliation given for identification purposes only.
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Many current Occupational Safety and Health Administration
standards are based on consensus standards developed by the American
Conference of Governmental Industrial Hygienists (ACGIH). A historical
review of how the ACGIH consensus standards became so influential is
interesting and enlightening for the current debate.\1\
---------------------------------------------------------------------------
\1\ More detailed references to the source materials for the
information provided in this testimony can be found in, ``Defining What
to Regulate: Silica & the Problem of Regulatory Categorization,'' by
Andrew Morriss & Susan Dudley, forthcoming in the Administrative Law
Review (spring 2006). Draft available at http://papers.ssrn.com/sol3/
papers.cfm?abstract--id=781684.
---------------------------------------------------------------------------
Initially organized in 1936 as the Temporary Conference of Official
Industrial Hygienists, the ACGIH soon became the National Conference of
Governmental Industrial Hygienists (NCGIH) and in 1946, adopted its
current name. Its influence grew after World War II, in part because
organized labor focused its efforts mainly on wages, rather than
workplace issues like industrial diseases. The private sector lead
improvements in workplace health after the war, and industry turned to
the industrial hygienists' trade organization for standards. The ACGIH,
which had expanded its membership criteria to offset the decline in
government activity after the war, began to receive requests from firms
for standards governing workplace exposure. The organization formed the
Committee on Industrial Hygiene Codes, and it created a table of
``maximum allowable concentrations'' (MACs) as a first step toward a
comprehensive industrial hygiene code in 1946. A separate Technical
Standards Committee also considered the issues and took over the
project. The organization also took advantage of increased interest in
the subject during the war ``to organize and develop industrial hygiene
agencies where they had not previously existed. By the end of the war a
network of units had been established in nearly every state and many
large industrial cities.'' \2\
---------------------------------------------------------------------------
\2\ Jacqueline Karnell Corn, Protecting the Health of Workers: the
American Conference of Governmental Industrial Hygienists, 1938-1988,
at 43 (1989).
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ACGIH then published its maximum allowable concentrations as
``Threshold Limit Values.'' The organization insisted that the TLVs
were merely guides and not ``fine lines between safe and dangerous
concentrations.'' \3\ Despite regular repetition of such warnings,
however, many states used TLVs as legal limits in state-level workplace
regulatory schemes, and they continue in widespread use around the
world. The TLVs offered firms a focal point around which to structure
their workplace safety campaigns, without requiring the firms to invest
individually in the research necessary to set them. And firms could
point to their compliance with ``industry standards'' if questions were
raised about particular substances. The range of substances to which
employees were exposed grew with the post-war explosion in the chemical
industry, but there was no increase in dust exposures comparable to
that introduced by the industrial revolution.
---------------------------------------------------------------------------
\3\ See Corn at 60 (quoting the Committee on Threshold Limits).
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Between 1961 and 1970, it issued 220 TLVs, bringing the total to
500. ACGIH, and the TLV committees within ACGIH, had considerable
autonomy. The organization rejected the consensus approach of the
American Standards Association because its members asserted that
experts should set the health standards without interference from
outsiders and that ACGIH members' governmental employment freed them
from conflicts of interest. But, public choice theory raises the
question, what were ACGIH's and others' interests in the regulatory
adoption of the TLVs?
First, the organization delivered professional status to its
members, allowing them to both improve their status within firms and
bureaucracies and to raise the profession as a whole. The ACGIH's role
in setting standards adopted by state governments, and eventually the
federal government, enhanced that status. Second, the adoptions gave
the organization influence: Firms followed its recommendations, and
government agencies adopted its TLVs. Strong evidence that the
organization derived some benefit from their use can be found in the
fact that the organization and its members tolerated such uses over
long periods, uses that directly contradicted the TLVs stated
purposes.\4\
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\4\ TLVs for about 400 substances were incorporated into OSHA
consensus standards via their earlier use under the Walsh-Healey Act
standards, although some were ``based on inadequate documentation.''
See Corn at 91 (describing OSHA's congressional authority to bypass
rulemaking procedures and establish ``start-up'' standards). ACGIH did
not attempt to stop OSHA's inappropriate use of the TLVs. See Corn at
92 (clarifying that the TLVs were not meant to be standards). According
to Corn, ``ACGIH seemed to have mixed emotions about use of the TLVs.
They wanted to contribute to the new federal effort to bring about a
healthy and safe workplace, and they were proud of the TLVs. Very
little discussion can be found about this issue.'' Corn at 92. In the
one discussion recorded in the minutes, ACGIH seems to have been
resigned to OSHA's inappropriate use of the TLVs. See Corn at 92
(elaborating that, although the ACGIH was displeased with the Labor
Department for misusing the TLVs, it felt that if the Labor Department
was going to use TLVs for that purpose it might as well use ACGIH's
TLVs). The board responded to a question from the floor by saying:
``There is nothing in my opinion, that ACGIH can do to prevent or stop
anyone, any state or federal agency, from using our ACGIH TLVs in
standards.'' Corn at 92-93. One participant recalled that, despite the
language in the TLV publications warning against treating them as
standards, the group ``was rather tickled with themselves that the TLVs
were being used that way.'' Interview with Leonard J. Goldwater, in
Corn at 145. Goldwater also noted that the ACGIH ``took no measures,
whatsoever, to disassociate themselves from [OSHA's use of the TLVs]
after it was made, after these things were adopted.'' Corn at 144.
ACGIH standards were technically ``not consensus standards, but the
legislation establishing OSHA required that only consensus standards be
adopted.'' Salter, at 42. As one informant [to the study] suggested:
---------------------------------------------------------------------------
Section 5(a) of the OSHAct mandates the Secretary of Labor to
adopt, without dealing with title 5 of the Administrative Procedures
Act, as soon as practicable, any of the consensus standards already
established in federal regulations * * * Some argue that the Secretary
had discussions (before adopting the standards). Others argue that the
adoption was automatic because the big employers were already using
these standards. Corn.
In addition, ``There was some discussion in ACGIH about whether to
adopt a consensus method, but ACGIH did not do so.'' Corn As one person
described the situation:
Stokinger saw the legislation (OSHAct) required consensus standards
from that point on (for the purpose of their being adopted as OSHA
regulations.) So he looked around and appointed industry and union
representatives on the TLV committee for the first time. I don't think
this is appreciated. Stokinger was wrong, but he thought he could make
the TLV committee (into) a consensus body if there were industry and
union representatives. Corn
The ACGIH also played an important role for large firms, which, in
turn, assumed key roles in creating and determining the TLVs. As one
study noted, ``It is easy to document the influence of industry, and of
industry consultants in ACGIH,'' \5\ especially since unions generally
did not participate in the TLV process and the ACGIH developed TLVs
largely in response to industry requests.\6\ Large firms thus obtained
standardized TLVs around which state regulations, and eventually
federal regulations, coalesced, helping prevent inconsistent standards.
The process gave the firms influence over both the substances included
and the levels set--influence they would find much harder to exercise
over government regulatory bodies. ACGIH thus played a larger part than
the Baptists (to large firms ``Bootleggers'') in a ``Bootleggers and
Baptists'' regulatory coalition.\7\ It was a priestly caste in a
theocracy.
---------------------------------------------------------------------------
\5\ Corn. at 59. ACGIH and its members, however, deny that they are
biased toward industry. Id. (explaining that many ACGIH members view
the organization as an ``industry watchdog'').
\6\ Liora Salter, Mandated Science: Science and the Scientists in
the Making of Standards 47-48 (1988) (describing generally the informal
process by which the ACGIH sets priorities and develops standards).
\7\ The bootleggers and Baptists theory of regulation suggests that
two different groups often work together to achieve political goals.
See Bruce Yandle, Bootleggers and Baptists: The Education of a
Regulatory Economist, AEI J. Gov't & Society 13 (May/June 1983),
available at http://www.mercatus.org/pdf/materials/560.pdf. Like the
bootleggers in the early twentieth-century South, who benefited from
laws that banned the sale of liquor on Sundays, special interests need
to justify their efforts to obtain special favors with public interest
stories. The Baptists, who supported the Sunday ban on moral grounds,
provided that public interest support. While the Baptists vocally
endorsed the ban on Sunday sales, the bootleggers worked behind the
scenes and quietly rewarded the politicians with a portion of their
Sunday liquor sale profits. Id.
---------------------------------------------------------------------------
Moreover, the eventual expansion of the federal role in
occupational health and safety was foreseeable long before the creation
of OSHA in 1970. The role of the ACGIH TLVs was also foreseeable. One
ACGIH member and government agency employee described the use of TLVs
by OSHA to a researcher as follows:
``I don't think it was accidental. There had been several attempts
over the preceding years to promulgate an OSHAct * * * and it was just
a question of time as to when there would be a national occupational
health and safety program. The language of the OSHAct specifically
provided for the Secretary of Labor to promulgate as interim or start-
up standards, national consensus standards, that had already been
promulgated under certain Acts including the Walsh-Healy Act. Now the
people in the Bureau of Labor Standards who were responsible for
promulgating those standards were the same people who were going to be
responsible under OSHA for setting the interim standards. Many of these
people were ACGIH members but that doesn't make it an ACGIH decision.
These people knew what was coming down the road and that they would
have a job to do. If you had that responsibility, what would you use?''
\8\
---------------------------------------------------------------------------
\8\ Salter at 42.
---------------------------------------------------------------------------
The expansion of ACGIH's TLVs during the 1960s, and their
``inappropriate'' use in state, and eventually federal, regulations
served not only the interests of the members, the organization, and the
large firms, but also politicians. President Nixon supported
initiatives like environmental legislation, at least in part for
political advantage, but he also wanted to keep these initiatives
carefully constrained to avoid incurring economic penalties or
alienating his business supporters. Adopting the consensus standards,
already in use at many large businesses, both satisfied his political
need to appear to be doing something and minimized the economic effects
and potential decline in support from business.
The passage of the OSH Act dramatically changed the institutional
environment, and enhanced ACGIH's influence. The statute separated
standard-setting and enforcement from the development of technical
knowledge about workplace hazards, locating the former in OSHA and the
latter in NIOSH.\9\ It required the agencies to act quickly to create a
base of federal standards.\10\ OSHA had only two years to convert
existing consensus standards into legally binding ones unless the
agency found that doing so would not improve safety and health. This
provision led to OSHA's wholesale adoption of things like the ACGIH
TLVs as standards. Shortly after Congress established OSHA in 1971, the
agency issued more than 4,000 general industry standards, based on
national consensus standards of the American National Standards
Institute and the National Fire Protection Association, as well as
existing federal maritime safety standards. In just four months, OSHA
took more than 400 pages of standards from a variety of prior programs
and voluntary organizations and converted them into regulations. This
had the effect of converting a set of largely discretionary industry
guidelines into mandatory workplace design standards and, as noted
below, changed the role of other agents in the market for health and
safety.
---------------------------------------------------------------------------
\9\ Under the OSH Act, when NIOSH recommends that OSHA promulgate a
health standard, the Secretary of Labor must, within 60 days after
receipt thereof, refer such recommendation to an advisory committee
pursuant to this paragraph, or publish such as a proposed rule pursuant
to paragraph (2), or publish in the Federal Register his determination
not to do so, and his reasons therefor. The Secretary shall be required
to request the recommendations of an advisory committee appointed under
section 812(c) of this title if the rule to be promulgated is, in the
discretion of the Secretary which shall be final, new in effect or
application and has significant economic impact. 30 U.S.C.
Sec. 811(a)(1) (2000).
\10\ This was supplemented by a general duty provision. The Act
established a general duty on the part of employers to ``furnish to
each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees; and [to] comply with
occupational safety and health standards promulgated under this
chapter.'' 29 U.S.C. Sec. 654(a)(1)-(2) (2000).
---------------------------------------------------------------------------
Some have criticized OSHA for not attempting to ``sort through the
existing standards to weed out those that were obviously silly and
outdated.'' \11\ Salter's study and Corn's institutional biography both
suggest, however, that because ACGIH members in their capacity as
bureaucrats were involved in the process the explanation may not lie in
a lack of knowledge about whether particular provisions were ``silly or
outdated'' but rather in a wholesale acceptance of a broader role for
TLVs than had ever been officially acknowledged as a goal by ACGIH.
Reinforcing this interpretation is the recollection of an ACGIH member,
who described the situation to Professor Salter as follows:
At the time of OSHA's creation, there was a lot of soul searching
at ACGIH. We wondered whether we should just fold up our tent and go
home. There was a lot of encouragement in that direction coming from
NIOSH. NIOSH felt that now it had legal responsibility for establishing
criteria for standards, that ACGIH's TLV committee had done its job
well, but that now we were in a new era and NIOSH superseded us. There
were a lot of people at NIOSH who felt that way and weren't afraid to
express it to the TLV committee and ACGIH itself. I was on the Board of
Directors, but I think even more discussion was taking place in the TLV
committees. It ended up with a wait and see attitude for a couple of
years. By the mid1970s, there was a realization that the new system was
not going to be responsive to current problems.\12\
---------------------------------------------------------------------------
\11\ Thomas O. McGarity & Sidney A. Shapiro, Workers at Risk: the
Failed Promise of the Occupational Safety and Health Administration 37
(1993).
\12\ Salter at 41.
---------------------------------------------------------------------------
Converting the TLVs into standards served the interests of the
ACGIH by giving it a rationale for continuing its work and served the
interests of OSHA in getting regulations on the book quickly.
Moreover, OSHA standards did not come into existence in a vacuum.
Before OSHA, there were state and local regulatory efforts as well as
vo luntary standards like the ACGIH TLVs. Large firms operating across
jurisdictions benefited from nationalizing regulations, getting rid of
conflicting local standards, and shifting the regulatory focus to
Washington where they could afford to maintain lobbyists and lawyers.
Indeed, the threat of conflicting state and local regulation remains a
potent one. When the new Reagan Administration stopped work on a Carter
Administration proposal for ``right to know'' rules, for exa mple,
unions began lobbying for state and local versions. Worried about a
patchwork of inconsistent rules, industries then sought federal rules
that would preempt local standards. Adopting the ACGIH TLVs, with which
they were already familiar, gave larger firms an advantage and forced
their smaller competitors to incur additional costs.
The creation of NIOSH and OSHA led to ``an enormous growth of
professionals'' in industrial hygiene: ACGIH membership boomed, and for
the first time, a majority of ACGIH employees came from federal
agencies. Membership soared from approximately 1,000 in 1968, to over
1,500 in 1973, to almost 2,500 in 1983.\13\ An organization that began
in 1938 primarily consisting of 76 employees, almost all state and
local agency employees, grew to 3,720 members, with a substantial
federal contingent, by 1988.\14\
---------------------------------------------------------------------------
\13\ Salter at xi.
\14\ Salter at x.
---------------------------------------------------------------------------
In the case of crystalline silica, the subject of my research,
knowledge of health effects grew after World War II largely through a
combination of public and private investment. NIOSH and the
International Agency for Research on Cancer (IARC) both pulled together
a great deal of research on silica, but that research came from a
mixture of private, nonprofit, and public sector funded researchers.
Post-war problems with silica stem largely from OSHA's involvement. By
ossifying the ACGIH standard, OSHA eliminated the flexibility of the
ACGIH process without adding any compensating benefits (such as more
comprehensive analysis) to the near universal acceptance of the TLV.
OSHA's failure to respond to NIOSH and IARC since NIOSH first warned of
the existing standard in 1974 is a textbook example of go vernment
failure.
The regulatory history of silica shows not only that our
understanding of health effects is constantly evolving, but that
knowledge about hazards is endogenous--it arises in response to outside
events, regulations, and interest groups. Accepting particular states
of knowledge as definitive is thus a mistake, as is failing to consider
the incentives for knowledge production created by regulatory measures.
Recognizing what Frederic Hayek called ``the knowledge problem'' is
essential when it comes to understanding the appropriate role of
organizations such as ACGIH, and occupational health issues
generally.\15\ First, before issuing new regulations, OSHA should
clearly define what market failures, if any, impede efficient solutions
to address health risks. Both employers and employees have incentives
to protect health and safety in the workplace. Lack of information,
particularly due to the lo ng latency period for many occupational
diseases, may dampen these incentives. If the problem is a lack of
information on risks and remedies, OSHA, and its research counterpart
NIOSH, should focus on generating and dispersing better information.
Although occupational health is not a field in which market forces are
trusted, the serious problems with the current system cannot be solved
without recognition of the important role played by the Hayekian
knowledge problem.
---------------------------------------------------------------------------
\15\ See generally Friedrich A. Hayek, The Use of Knowledge in
Society, 35 Am. Econ. Rev. 519 (1945) (discussing problems with
economic theory and the refinements needed to resolve those problems).
Hayek's central point was that decentralized markets focus dispersed
information--information that no one individual (not even a regulator)
can obtain--and convey it efficiently to market participants.
---------------------------------------------------------------------------
The federal government can play two important roles in this
information market place. It can be a supplier. Through entities like
NIOSH, the government can sponsor and conduct research that will
influence standards. It can be a consumer. Just as it did under the
Walsh-Healey Act before OSHA's creation in 1970, the government can
demand that its information suppliers meet standards the government
believes are effective.
Further, any regulatory action must recognize the diversity in
exposure and response across the varied workplaces. Heeding the lessons
we've learned from the history of silica in the workplace, it is
important to contrast the interest group incentives provided by a
regulatory effort aimed at developing a uniform standard with those of
a policy aimed at generating and disseminating information. The uniform
standard provides incentives to interest groups to invest resources in
influencing the standard to suit private goals (for example, gain
advantage over competitors). In contrast, a focus on information
provides incentives for interest groups to compete to develop and
provide better information in support of their views of the risks and
remedies.
The ``market'' for standards that existed before OSHA consisted of
groups like the ACGIH, unions, trade associations, and others. NIOSH's
entry into this market changed the dynamics, primarily because of the
influence of NIOSH criteria documents in initiating OSHA standards.
Encouraging the development of competing standards for occupational
health would create market pressure for increasing knowledge about
harms. Competitive standards have operated successfully in a number of
areas, including organic food certification and kosher labeling, and
have successfully improved quality in a number of areas.
In contrast to flexible standards that respond to different
information, a uniform standard proves hard to adjust as new
information becomes available, as is evidenced by the current OSHA
exposure limit of 0.10 mg/m3. Knowledge is dynamic, and uniform
standards necessarily lock in expectations based on the level of
knowledge available at a given time. In particular, regulations that
specify which remedies are acceptable or unacceptable discourage
innovation into better solutions.
Economics teaches us that people respond to incentives and groups
such as the ACGIH are no exception. A legitimate concern is that this
could result in the ``capture'' of an organization by a set of interest
groups. The best solution to this problem is to encourage competition
among various organizations for evaluating health risks and developing
standards. Competition would encourage exposure of inappropriate
behavior, force organizations to justify their work product to win
acceptance of their standards, and provide a marketplace of ideas about
the most appropriate response. The problem we thus face is not that
private organizations like ACGIH produce standards but that those
standards sometimes become ossified through their adoption by
government agencies, limiting the incentive to produce competing
standards that could develop new solutions.
______
[Additional submission by the Mercatus Center of George Mason
University placed in permanent archive file, Defining What to Regulate:
Silica & the Problem of Regulatory Categorization, forthcoming,
Administrative Law Review, spring 2006, Andrew P. Morris and Susan E.
Dudley, draft, 26 April 2006.]
Prepared Statement of the Precision Machined Products Association
Executive Summary
The protection of worker safety and health is an important national
priority, and one with which the federal government is entrusted. This
is not a new idea, Hippocrates said ``In the first place, do no harm.''
That is a powerful charge and only requires seven words to make the
point. What is new today, however, is that, as industrial processes
grow more complex, and materials increase in number, the charge to ``do
no harm'' requires a few more resources than one wise old man and seven
words.
The OSH Act established as a foundation, the use of ``National
Consensus Standards'' to assure that wisdom would be the cornerstone of
their rulemaking and enforcement. The phrase ``National Consensus
Standards'' provides us with a beacon of what was expected to be used
as the basis of OSH regulatory activities. However today, ``National
Consensus Standards'' are an illusion at best, they reflect neither
national interests nor are they reflective of a true consensus, nor do
they reflect a ``standard'' that would be constructed were a true
``national consensus'' of authorities empanelled to develop them.
The reliance of OSHA on non-consensus standards is bad governance,
it's a bad example of how markets should work, its bad way to base
policy, and it's bad science. Unless open consensus standards are used,
there is no means to provide corrections--and those affected, those
thought to be protected, the economy, the country and all of us will be
impacted by the full weight of the law as directed by what ever the
unknown biases, mistakes, omissions, and systemic errors the closed
door process is subject to.
Hardly a description of ``In the first place, do no harm.''
PMPA--Making The Parts That Make Our World Safer
The Precision Machined Products Association is a not for profit
501(c)6 association representing the manufacturing companies of the
NAICS 332721 Precision Machining Industrial Classification. Sales in
our industry are reported to be $8.96 billion dollars for 2004
according to the US Census. Our industry consists of approximately 525
industry establishments and approximately 71,662 employees. Our
association represents 500 member companies, approximately 350 of which
are directly engaged in NAICS 332721. The balance of our members are
suppliers to our industry. Our member companies are smaller
enterprises, (median sales around $4 million annually) that apply their
machining and manufacturing know how to produce precision components
that not only make our world run--but also make our world safer.
Automotive parts produced by our members range from simple fasteners
that might anchor a seat belt to the floor through complex safety
critical, anti-lock braking components and parts for airbags for
occupant safety. Our members make parts used in plumbing, HVAC, fluid
power, electrical and electronic applications as well as for aerospace
technologies. Our members also produce a host of components for
military armaments and the Department of Defense.
Many of our members are producing the ultimate in precision-
machined parts--medical implants such as bone screws and other
implantable products. The products that we make are generally
metallic--steel, aluminum, brass and titanium, and include many others.
Our members manufacture parts to very precise geometries and tolerances
by machining, that is, by taking stock removal by cutting using tools
on both mechanical automatic screw machines and also using Computer
Numeric Controlled (CNC) machines.
In order to achieve the high precision and surface finishes needed
by today's technologies, metalworking fluids are used to remove the
heat from the work, help remove the chip from the cutting area, and to
provide lubricity, control build up, and perform other functions. With
metalworking fluids such an important part of our process, it is
critical to our industry's sustainability that any regulations applied
to our processes be the result of good science and a functional policy
environment where the checks and balances exist to assure that the
interests of all affected parties are given fair regard.
Our interest in the issue of non-consensus standards is driven by
the fact that we will be the ones who have to bear the burden of bad
policy and bad science implemented into law. Closed, smoke filled rooms
have never been preferred to the fresh air and sunshine of open public
processes, and the lack of an open dialogue and opportunity to
participate in the processes that will determine the rules of the game
for our manufacturing operations and our worker's safety is troubling,
when we and other affected constituencies are not even given a seat at
the table.
Congressional action is needed to assure that OSHA relies only on
National Consensus Standards that are developed in an open, balanced
public process such as was directed by the National Technology Transfer
and Advancement Act of 1995 (NTTAA); in fact the legislation that
enables the Occupational Safety and Health Administration, 29 USC
Sec. 652(3)(9) also calls for true open national consensus. The current
reliance on non-consensus standards excluding input from those affected
seems contrary to the spirit of these congressional mandates.
PMPA Objects To The Use Of A Closed Non-Consensus Process For
Determining TLV's For Regulatory Enforcement
American Council of Government Industrial Hygienists (ACGIH) does
not employ an open consensus process where members from industry and
other affected stakeholders may participate and share their intimate
and practical knowledge on the subject. The closed TLV development
process makes for bad science. Science functions best when the facts
and data used to create one's findings are subjected to open scrutiny
of other professionals. The exclusion of other knowledgeable
professional industrial hygienists thereby makes the TLV's not subject
to the self-correcting nature of scientific discourse.
This flaw in the process of creating TLV's thus condemns them as
nonscientific, in the sense expressed by Mellett in 2004: ``when a
scientist, regardless of their field of expertise, publishes the
results of their work, other scientists will subject their work to
verification. Thus errors in science are detected very quickly. Indeed,
you can argue that scientific progress is impossible without the search
for error.'' The ACGIH closed-shop model of only insiders and not
industry professionals participating in the development of TLV's thus
removes a key component of scientific legitimacy, the public and open
examination, verification, and correction of errors by other
professionals. The ACGIH non-consensus methodology thus can be seen as
not just being bad science--but rather ``non-science'' in that it lacks
this key self-checking mechanism of the scientific community.
PMPA Objects To The ACGIH's Process Ignoring Prior Art And Knowledge in
Their Process For Determining TLV's For Regulatory Enforcement
ACGIH has ignored prior art and knowledge in the area of
metalworking fluids in its apparent determination to lower the TLV
regardless of the facts. There is a history of and body of knowledge on
the subject of metalworking TLV's in the public starting initially with
the unsuccessful petition of OSHA by the United Auto Workers to more
stringently regulate metal working fluids and their components in 1993.
The UAW then sought to use the courts to advance their case for
lowering limits on Metalworking fluids--UAW v. Chao, 361 F.3d 249 (3rd
cir.2004). PMPA was part of a successful industry effort to stop this
unwarranted regulation. As other testimony has shown, symposia, task
forces, and other meetings have been convened on the subject of
metalworking fluids. Despite the outcome of UAW v. Chao, the same TLV
is now being proposed via a non-public non-consensus ACGIH route.
This ignoring of existing data and the court decision repudiates
any claim that ACGIH might make for openness of its process or
legitimacy of its dictates.
PMPA Objects To The ACGIH's Process For Determining TLV's For
Regulatory Enforcement In Which Alleged Causative Agents Remain
Unidentified, Resulting In An Overly Broad Regulatory Action On All
Mineral Oil Containing Metalworking Fluids
The closed ACGIH process has resulted in a TLV standard for which
the alleged causative agents remain unidentified. By not including
industrial hygienists with industry expertise into their closed
consensus process, our industry may soon be facing the task of managing
a vague and undefined threat to our employee's safety--``mineral oils
aerosols in metal working operations where additives and metal or
microbial contaminants are present.'' This vague statement might be
interpreted:
A. That the metal working fluid, by nature of having mineral oil
content is the basis for the need for the lowered TLV;
B. That the additives might be the reason for the need for the
lowering of the TLV;
C. That the metal contaminants might be the reason for the lowered
TLV;
D. That microbial contaminants might be the basis for the
recommendation for the lowered TLV.
This overly broad, nonspecific statement is bad science in that it
does not establish which if any of the constituents named might
actually be causative and justify the lowering of the TLV. Thus, the
non-consensus process employed by the ACGIH has resulted in, if we may
be permitted to use a metaphor, a regulatory approach that attempts to
``ban cars rather than arrest drunk drivers.'' Overly broad, all-
inclusive categories when no specific causative agent is identified
makes for bad science, is bad policy, and it is sloppy governance.
PMPA Objects To The Potential Costs And Consequences Resulting From the
ACGIH's Non-Consensus Process For Determining TLV's For
Regulatory Enforcement
The potential costs and consequences of the ACGIH TLV proposal
resulting from their non-consensus process are significant to our
economy and our way of life. The costs to implement compliance in
manufacturing to the proposed TLV have been estimated to be about $19
billion in 1998 dollars. Assuming that our GDP is $13 trillion, the
cost of compliance with this rule would be one and a half tenths of a
percent of US GDP. Our industry's total sales in 2004 were $8.96
billion dollars. As a result of a closed shop, non-public, non-
consensus process, metalworking industries are likely to incur costs
that are roughly double the total sales of the precision turned
products industry's annual sales.
The non-public, non-open, non-consensus process employed by ACGIH
has neither identified allegedly harmful causative agents, nor a
mechanism for employee harm--just an overly broad categorical
condemnation of metalworking fluids in general if they contain mineral
oils. However, there is no denying that the costs to reengineer our
workplaces so that we can comply with the proposed TLV will close many
of our shops and terminate the employment of many of our nation's most
skilled workers. Does America want to take a family whose breadwinner
operates two or three, million dollar pieces of precision machining
equipment, who produces millions of dollars in sales revenue annually,
earning up to $20 per hour plus benefits, producing more than up to 20
foreign workers, and force them out of work? Just because a group of
uninvolved people, without input from anyone affected, thought that we
would be better off with a standard that is close to the limit of our
current technology's ability to determine conformance with?
Summary
The current closed, non-public, non-consensus process utilized by
ACGIH lacks openness and any means of introducing daylight or any
ability to correct or independently confirm the validity of its product
Threshold Limit Values (TLV's) for regulating industry. By ignoring and
excluding the input of all affected parties, the closed process
employed by ACGIH is little more than bureaucratic bullying. This
process may well have us on a fast track to waste--as it is conceivably
a means of wasting almost one and a half tenths of a percent of U.S.
GDP for no scientifically demonstrated benefits.
That OSHA can continue to adopt and enforce non-consensus standards
using force of federal law is bad policy, and preventing outside
professionals from participating in the process removes any self-
correction that might actually give scientific credibility to that
work. It is our hope that this Committee will help Congress get OSHA
back on track to its foundational vision--open consensus standards and
good science. Bureaucratic bullying and closed standards development
should be phrases that best describe former Soviet governance, not
American occupational safety and health rulemaking in the twenty first
century.
______
[Additional materials submitted from the American
Conference of Governmental Industrial Hygienists (ACGIH)
follow:]
Prepared Statement of Robert D. Soule, EdD, CIH, CSP, PE, Chair,
American Conference of Governmental Industrial Hygienists
The American Conference of Governmental Industrial Hygienists.
(ACGIH) submits this statement to correct testimony presented before
this Subcommittee at its April 27, 2006 Hearing on the Use of Non-
Consensus Workplace Health and Safety Standards. ACGIH thanks the
Subcommittee for the opportunity to present this statement.
Certain testimony presented by Mr. Henry Chajet and Ms. Elizabeth
Marcucci contains incorrect statements and unfounded conclusions
regarding ACGIH. This Statement is presented to correct the record.
ACGIH is an independent, non-profit scientific organization that
provides guidance to industrial hygienists on issues relating to health
and safety in the workplace. ACGIH publishes Threshold Limit Values
(TLV5) and Biological Exposure Indices (BEIs), which are based on
scientific analysis of existing peer reviewed literature. The TLVs and
BEIs are scientific opinions describing levels of workplace exposure
that the typical worker can experience without adverse health effects.
The TLVs and BEIs are guidelines to be used by industrial hygienists as
one of many factors in evaluating the conditions in a specific
workplace. They are health-based values. They are not standards and are
not intended to be used as standards. TLVs and BEIs are initially
published on ACGIH's website in draft form as a Notice of Intended
Changes (NIC). These NICs are available to all interested parties, who
are given at least a full six months to provide comments. All comments
are carefully reviewed before any final TLV or BEI is published.
ACGIH Does Not Set Standards
Five years ago, Dr. Patrick N. Breysse, as Vice Chair-Elect of
ACGIH, submitted a written statement in response to Mr. Chajet's
comments before this Subcommittee at an OSHA Rulemaking Hearing on June
14, 2001. (See Attachment A, Statement of Patrick N. Breysse). Dr.
Breysse's statement was a clear and concise message to Congress that
ACGIH's TLVs ``are not developed for use in rulemaking proceedings or
in standard setting activities.'' (Statement of Patrick N. Breysse,
page 4) His statement contained several salient points that bear
repeating as ACGIH again unfairly finds itself in the crosshairs of a
Congressional hearing on the same issues that were raised in 2001.
The main evidence cited by Dr. Breysse to support the fact that the
TLVs and BEIs are not standards and are not intended to be used as
standards is the Policy Statement on the Uses of TLVs and BEIs and
Special Note to User that are printed inside the front cover of the TL
Vs and BEIs Book that ACGIH publishes and distributes annually. The
Policy Statement explains that TLVs are ``recommendations or guidelines
intended for use in the practice of industrial hygiene'' and are ``not
developed for use as legal standards and ACGIH does not advocate their
use as such.'' On the same page, in a blocked paragraph titled
``Special Note to User,'' ACGIH states that TLVs are ``not fine lines
between safe and dangerous concentrations and should not be used by
anyone untrained in the discipline of industrial hygiene.'' Dr. Breysse
demonstrated that ACGIH has taken all reasonable measures to inform
users of the TLVs and BEIs, as well as the general public, that it does
not set standards and that the TLVs and BEIs are not intended to be
used as standards.
Five years later, ACGIH is again the target of harsh criticism and
is wrongly being referred to as a standards setting entity by both Mr.
Chajet and Ms. Marcucci, in testimony before this Subcommittee on April
27, 2006. It seems that Dr. Breysse's comprehensive statement from 2001
has received no proper consideration. Therefore, we now must reiterate
our position that ACGIH is not a standards setting organization and
that ACGIH does not intend that the TLVs or BEIs be used as standards.
At the Subcommittee Hearing on April 27, 2006, Charles Norwood,
Chairman, Subcommittee on Workforce Protections, displayed the
definition of a ``national consensus standard,'' as defined in Section
3 of the OSH Act of 1970, on two television screens at either side of
the hearing room:
The term ``national consensus standard'' means any occupational
safety and health standard or modification thereof which (1), has been
adopted and promulgated by a nationally recognized standards-producing
organization under procedures whereby it can be determined by the
Secretary that persons interested and affected by the scope or
provisions of the standard have reached substantial agreement on its
adoption, (2) was formulated in a manner which afforded an opportunity
for diverse views to be considered and (3) has been designated as such
a standard by the Secretary, after consultation with other appropriate
Federal agencies. OSH Act of 1970, Sec. 3(9).
Along with remarks made throughout the hearing, Chairman Norwood's
intentions were clear with this presentation: federal regulatory
bodies, such as the Department of Labor (``DOL''), should adopt
workplace health and safety standards based on a national consensus
standard and through the rulemaking process described in Section 6 of
the OSH Act. ACGIH does not take issue with this concept. However,
since ACGIH is not an organization that establishes either national
consensus standards or non-consensus standards, it should not be
excoriated if the DOL, or any other federal agency for that matter,
chooses to refer to a TLV or BEI in the course of the agency's
activities.
Mr. Chajet testified that ACGIH adopts ``standards under a veil of
secrecy'' and conducts ``secret, backdoor rulemaking.'' This rhetoric
obfuscates the simple truth: ACGIH is not a standard setting body. It
is a private, nongovernmental scientific organization that publishes
guidelines for industrial hygienists based on the review of existing
published, peer-reviewed scientific literature. No ACGIH guideline is
published in final form without at least allowing for a full six-month
public comment period. ACGIH has repeatedly stated that regulatory
bodies should view TLVs and BEIs as an expression of scientific opinion
and not as workplace standards.
ACGIH Responded to the ABA's Comments on the Flour Dust TLV
The American Baker's Association (ABA), represented by Ms.
Marcucci, Chair, ABA Safety Committee, presented testimony before the
Subcommittee at its April 27, 2006 Hearing, criticizing the way that
ACGIH establishes its scientific guidelines. Ms. Marcucci stated that
ACGIH conducts ``its scientific evaluations and decision making
completely in private, with no outside input or oversight,'' resulting
in ``no confidence in the final work product.'' She bases this attack
on allegations that the ABA was ``ignored'' in its attempts to contact
ACGIH regarding the proposed flour dust TLV. Let us present the facts
for the record.
The ABA was dissatisfied with ACGIH's proposed TLV for flour dust
and contracted with Sandler Occupational Medicine Associates (``SOMA'')
to conduct its own review of the literature cited by ACGIH in the
documentation supporting the TLV. After it was completed, the ABA
submitted the SOMA review to ACGIH and requested that the proposed TLV
on flour dust be withdrawn. Ms. Marcucci testified that the ABA
received a summary dismissal, from ACGIH, of its request to withdraw
the flour dust TLV. However, ACGIH's response to the SOMA study was not
in the form of a summary dismissal but, rather, a comprehensive
evaluation of the study and its reasons for not removing flour dust
from the list of adopted TLVs. (See Attachment B, January 15, 2002
Letter from ACGIH to James A. Bair, Robb S. MacKie and Gordon Harrison)
On January 15, 2002, ACGIH submitted its evaluation of the SOMA
study to the ABA, the North American Millers' Association and the
Canadian National Millers Association. ACGIH clearly identified three
specific issues--``Sensitization as an end-point'', ``Study criteria''
and ``Exposure threshold''--and carefully analyzed each in order to
conclude that it was not persuaded to remove the flour dust TLV from
its list of adopted values. However, the TLV Committee did incorporate
certain materials from the SOMA study into the revised flour dust
Documentation. Contrary to the testimony submitted by Ms. Marcucci,
ACGIH has addressed the concerns and issues raised by the ABA regarding
the flour dust TLV. This was not a process with no outside input.
Outside input was, and is, encouraged and fully considered.
Conclusion
Workplace safety is an important concern of all Americans.
Regulatory agencies in the U.S. and abroad are charged with
establishing standards to protect workers from being exposed to
dangerous substances in the workplace. Industrial hygienists are one of
the groups of professionals with responsibilities for evaluating
workplace conditions.
ACGIH investigates hazardous substances and conditions commonly
found in the workplace by analyzing available peer reviewed literature.
The evaluation is made by Committees of renowned scientists
representing many disciplines. After evaluating the literature, the
Committee publishes a comprehensive Documentation in draft form. The
Documentation sets forth the level of workplace exposure that, based on
the published peer reviewed guidelines, the Committee believes is a
proposed safe level of exposure for the average worker. The draft
Documentation including the proposed safe level of exposure (TLV or
BEI) is then published for public comment. Comments are fully evaluated
before a final TLV or BEI recommendation is made.
ACGIH does not engage in consensus or non-consensus standard
making. The United States District Court for the Middle District of
Georgia has rejected the unfounded claims raised by Mr. Chajet and
ruled that ACGIH is not a federal agency; that ACGIH is not a Federal
Advisory Committee; that ACGIH is not required to follow the Federal
Administrative Procedures Act; and that ACGIH has a First Amendment
right to publish its scientific opinion. (See Attachment C, Opinion of
U.S. District Court on Motion to Dismiss, IBSA v. ACGIH, (Civ. Action
No. 5:04 CV-394).) We think that this Subcommittee should recognize the
excellent work that ACGIH has done to promote worker health and safety
for more than 65 years.
ACGIH thanks the Subcommittee for this opportunity to correct the
record in this matter.
______
Prepared Statement of Patrick N. Breysse, Ph.D., CIH, Professor,
Bloomberg School of Public Health, Johns Hopkins University
My name is Patrick N. Breysse, and I am a Professor at the
Bloomberg School of Public Health at the Johns Hopkins University in
Baltimore, Maryland. I hold a Ph.D. from the Johns Hopkins University
School of Public Health. I also serve as Vice Chair-Elect of ACGIH
Worldwide (the American Conference of Governmental Industrial
Hygienists, Inc.) and as a member of the ACGIH Board of Directors. I am
the Board of Directors' liaison to the ACGIH Chemical Substance TLV
(Threshold Limit Values) Committee.
I am submitting this statement on behalf of ACGIH in response to
the statement made by Mr. Henry Chajet before this Subcommittee at its
June 14, 2001 hearing on OSHA Rulemaking. On behalf of ACGIH, I thank
the Subcommittee for the opportunity to present this statement.
Mr. Chajet's statement contained certain conclusions that are not
correct and certain facts that are incomplete. In order to set the
stage for my discussion, there are some basic facts that should be
understood:
1. ACGIH does not set standards.
2. ACGIH does not make submissions to government agencies.
3. ACGIH does not participate in or submit comments in government
rulemaking proceedings.
4. ACGIH does not engage in lobbying and does not normally submit
statements to Congressional Committees. This is the first Congressional
Hearing in which ACGIH has participated. This statement is being
submitted only to respond to the incorrect and misleading statements
about ACGIH.
5. ACGIH does not serve as a vehicle for government employees to
avoid notice and comment rulemaking responsibilities.
6. ACGIH is not a quasi-government agency or a federal public
advisory committee.
7. ACGIH does not act ``in secret'' as alleged by Mr. Chajet.
8. ACGIH is not a de facto ``Federal Advisory Committee (FAG).''
What is ACGIH, What Does It Do, and How Does It Do It?
ACGIH is a not-for-profit, scientific professional society with
approximately 4,200 individual members. ACGIH members include
occupational health and safety scientists who work for universities,
private industry, for federal, state and local governments, and for
others. As a scientific organization, ACGIH regularly publishes
educational materials relating to worker health and safety issues. It
holds educational events related to worker health and safety issues. It
also provides industrial hygienists in at least 62 countries throughout
the world, with a central resource for scientific information on issues
related to occupational safety and health. This information assists the
industrial hygienist in making independent assessments of diverse
issues in the environment within which they practice their profession.
ACGIH's most well known publication is its TLVs and BEIs book,
which is published annually. I am submitting the 2001 version of this
book with this statement for the record. It is this publication which
is the center of the controversy created by Mr. Chajet.
TLVs (Threshold Limit Values) and BEIs (Biological Exposure
Indices) are developed as guidelines by ACGIH to assist in the control
of potential health hazards in the workplace. ACGIH annually publishes
a Policy Statement on the uses of TLVs and BEIs. This Statement,
approved by the ACGIH Board of Directors on March 1, 1988, is contained
on the inside of the front cover of the TLVs and BEIs book. It
states:
``Policy Statement on the Use of the TLV's and BEI's
``The Threshold Limit Values (TLVs) and Biological Exposure Indices
(BEIs) are developed as guidelines to assist in the control of health
hazards. These recommendations or guidelines are intended for use in
the practice of industrial hygiene, to be interpreted and applied only
by a person trained in this discipline. They are not developed for use
as legal standards and ACGIH does not advocate their use as such.
However, it is recognized that in certain circumstances individuals or
organizations may wish to make use of these recommendations or
guidelines as a supplement to their occupational safety and health
program. ACGIH will not oppose their use in this manner, if the use of
TLVs and BEIs in these instances will contribute to the overall
improvement in worker protection. However the user must recognize the
constraint and limitations subject to their proper use and bear the
responsibility for such use.
``The Introduction to the TLV/BEI book and the TLV/BEI
Documentation provide the philosophical and practical basis for the
uses and limitations of the TLVs and BEIs. To extend those uses of the
TLVs and BEls to include other applications, such as use without the
judgment of an industrial hygienist, application to a different
population, development of new exposure/recovery time models, or new
effect end points, stretches the reliability and even viability of the
data-base for the TLV or BEI as evidence by the individual
Documentations. It is not appropriate for individuals or organizations
to impose on the TLVs or the BEIs their concepts of what the TLVs or
BEls should be or how they should be applied or to transfer regulatory
standards requirements to the TLVs or BEIs.''
On the same page, ACGIH goes even further and in a special blocked
paragraph with a title ``Special Note To User'' it is stated:
``The values listed in this book are intended for use in the
practice of industrial hygiene as guidelines or recommendations to
assist in the control of potential workplace health hazards and for no
other use. These values are not fine lines between the safe and
dangerous conditions and should not be used by anyone untrained in the
discipline of industrial hygiene. It is imperative that the user of
this book read the Introduction to each section and be familiar with
the Documentation of the TLVs and BEIs before applying the
recommendations contained herein. ACGIH disclaims liability with
respect to the use of the TLVs and BEls.''
The ``Policy Statement'' and ``Special Note to User'' listed above
make it abundantly clear that ACGIH is not publishing the TLVs or BEIs
as legal standards and that it is completely inappropriate for
individuals or organizations to transfer regulatory standards
requirements to the TLVs or BEIs. Thus the claim by Mr. Chajet or
others that the TLVs or BEIs are standards published by ACGIH, is
completely erroneous.
ACGIH has made it abundantly clear that it publishes TLVs and
BEIs as guidelines to assist the industrial hygienist in making
workplace assessments of occupational exposures. As an example, if you
are an industrial hygienist employed by a manufacturing company and you
know that workers in the companys' plants are regularly exposed to a
certain chemical, you can refer to the TLV/BEI Book and use the
information provided as a reference point for making your individual
decision as to what to recommend to the company. If you follow the
specific instructions within the TLV/BEI Book you will obtain a copy of
the Documentation for the substance involved and review that
Documentation before making any recommendations,. You can then use the
information provided as one part of the equation in making a
determination of what is appropriate for a specific workplace
situation.
I have used the word ``Documentation'' in connection with the TLVs
and the BEIs and I would like to explain exactly what I mean. For
every TLV and BEI, ACGIH publishes a comprehensive scientific summary
explaining the rationale for its action in establishing the TLV or
BEI. The Documentation also contains a comprehensive list of the
scientific literature relied upon in developing the TLVs or BEIs and
an analysis of the major studies relied upon.
Again, I emphasize that the TLVs and the BEIs are not developed
for use in rulemaking proceedings or in standard setting activities.
ACGIH does not submit the TLVs or the BEIs to any government agencies
that are responsible for rulemakings or to any private organizations
that are setting standards. The TLVs and the BEIs are guidelines
designed to assist trained industrial hygienists in the control of
workplace hazards.
A second important concept to be understood is that the TLVs and
the BEIs are not intended to show how dangerous a substance may be at
various levels of exposure and should not be considered fine lines
between hazardous and safe. These guidelines, in general terms, provide
the opinion of ACGIH that nearly all workers may be repeatedly exposed
to certain substances day after day without adverse health effects. The
TLV represents a judgement, based on the available scientific
literature or experience, that exposure at a certain level to a
particular substance does not pose an unreasonable risk, and that the
scientific literature and experience does not permit the same
conclusion at a higher level of exposure.
Mr. Chajet claims that the problem with the TLVs are that they are
not supported by proper science and that they are prepared in secret.
Neither of these allegations is true. As I will explain below, the TLVs
are supported by the best peer reviewed science available. Further, the
TLV process is an open process and not a secret process.
What is the Value of the TLVs/BEIs?
ACGIH is proud to say the TLVs/BEls are recognized on a worldwide
basis as one of, if not the best, compilations of occupational exposure
guidelines and worker health and safety information. Even though ACGIH
has repeatedly represented that these guidelines are not designed to be
used as standards, thirteen countries use the TLVs as standards, and
they are uniformly referenced in scientific literature in the
development of worker safety and occupational health standards in many
countries throughout the world. Scientists on a worldwide basis, in at
least 62 countries, recognize the validity and excellence of ACGIH's
science. But let me try to put that in perspective.
In his testimony before this Subcommittee, Mr. Chajet indicates
that one of his qualifications that enables him to make such a judgment
is that he has served as an Associate Professor at the Johns Hopkins
University School of Public Health. This is a very prestigious and very
high ranking academic credential and would carry some weight--if it
were true. In order to be an Associate Professor at Johns Hopkins
University, you have to be appointed to the faculty in accord with
established procedures for tenure-track professors. By contrast, Johns
Hopkins also has ``Faculty Associates''. These are people invited to
teach a specific course or lecture on a specific subject as a type of
``Adjunct'' lecturer. These people need not have the qualifications
necessary to become an Associate Professor. They are not on a tenure
track. And they are certainly not entitled to represent that they are
Associate Professors. Mr. Chajet served as a ``Faculty Associate'' not
an Associate Professor at Johns Hopkins. Attached to this statement is
a letter from the Assistant Dean of the Johns Hopkins University
Bloomberg School of Hygiene and Public Health setting forth the fact
that Mr. Chajet should not use the title of Associate Professor when
describing his former relationship with the Johns Hopkins University.
Now, let us look in detail at the procedure that ACGIH follows in
adopting a TLV.
ACGIH TLVs are established through a committee structure designed
to involve independent scientists of multiple disciplines, include
input from interested parties, and two levels of review. Further, after
a proposed TLV has been prepared and the appropriate Documentation
developed and made available to the public, the proposed TLV is put on
the public ``Notice of Intended Changes'' (NIC) list for approximately
one year or more. During that time, any interested party has the
opportunity to submit additional information to the TLV Committee. All
of the information submitted is carefully reviewed. At the end of a
period of approximately one year, the TLV may be published in the
original proposed form, published in a revised form with an additional
NIC notice, maintained on the NIC list for an additional period of time
in order to permit more information to be developed, or withdrawn. It
is difficult to understand how anyone can claim that the process is a
``secret'' process when a notice of any new TLV or any change in
existing TLV is published approximately one year before it becomes an
official recommendation of ACGIH effective.
The ACGIH TLV Committee has approximately 30 members who represent
4 major disciplines: Industrial Hygiene, Occupational Medicine,
Occupational Epidemiology, and Toxicology. Members of ACGIH interested
in joining the Committee are asked to complete a short application form
and provide a resume or curriculum vitae. In evaluating any application
for membership, the membership Subcommittee of the TLV Committee looks
at the following criteria: disciplinary training and education,
professional background, and past relevant experience. As a whole, it
is expected that a majority of the Committee will have industrial
hygiene expertise, with a majority of those having practical
experience. The remainder of the Committee will be comprised of persons
who have expertise in one or more of the following: occupational
medicine, epidemiology, toxicology or other related specialties (e.g.,
statistics, chemistry, etc.). A preference will be given for
individuals with ten or more years of professional experience and with
advance degrees in their fields of expertise. Individual members of the
Committee must demonstrate writing capabilities and communications
skills through publications, presentations or other activities. It is
expected that the membership of the Committee will reflect the
demographics of the industrial hygiene and occupational health
workforce. Persons with multi-disciplinary backgrounds and experience
are encouraged to apply.
Members of the TLV Committee are expected to contribute annually
approximately four weeks of their time to the work of the Committee.
This estimate includes time spent attending four meetings each year;
time spent in preparing and reviewing TLV Documentations; and time
spent in participating in Administrative Subcommittee activities.
Senior members of the TLV Committee will also be expected to provide
guidance and mentorship to the new members. Each member of the TLV
Committee (with the exception of the Chair and the Vice-Chair) will be
affiliated with one of the Chemical Substances Subcommittees. There are
expectations that each member of a Chemical Substance Subcommittee will
prepare at least two TLV Documentations annually; at least one of which
should be for a new substance. In addition to Chemical Substance
Subcommittee activities, each member of the TLV Committee is expected
to actively participate on at least one other Administrative
Subcommittee.
I wish to emphasize that these Committees are not composed
primarily of federal government employees out to write regulations
without following the Administrative Procedures Act. The TLV Chemical
Substances Committee is chaired by Lisa M. Brosseau, ScD, CIH of the
University of Minnesota. The Vice-Chair is Laura E. Fleming, M.D.,
Ph.D., M.Ph. University of Miami. I am submitting a list of the current
TLV Committee members with this Statement. The majority of the members
of the Committee are affiliated with academic institutions. Although
government employees from, for example, the Department of Labor and the
National Institutes of Health certainly play an important role as
Committee members, an equally important role is played by Committee
members from such well known companies as Dow Chemical Company, Exxon
Mobil, DuPont, and Merck & Co. Since 1970, the committee has consisted,
on average, of 73% members from affiliations other than the federal
government.
The TLV Committee determines priorities based on an evaluation of
what substances are commonly found in the workplace, what substances
pose the greatest potential dangers, and what substances are produced
to a great extent in the United States. Once a substance is identified
as a substance that would be an appropriate subject for a TLV, the
matter is put before the Committee leadership. With their approval, the
appropriate Subcommittee will add the substance to its list of
materials under study. The Subcommittee will take up the substance as
soon as there is available manpower--a member of the Subcommittee will
conduct a review of the literature and develop an initial draft of the
Documentation. The initial author of the documentation is selected
based on his or her special knowledge with reference to the substance
involved. With the assistance of the ACGIH scientific staff and
possibly paid outside consultants, the Subcommittee member assigned to
the project collects information, assembles the information, evaluates
the information, and then prepares a recommendation for consideration
by the TLV Subcommittee.
The proposed recommendation is accompanied by a comprehensive
Documentation. The matter is reviewed by the Subcommittee and
individual Subcommittee members comment on the proposed TLV level and
the Documentation. The Subcommittee discusses the information
available, the most appropriate scientific interpretation of the
information, and whether or not the information is directly applicable
to the workplace. Scientists from various disciplines provide their
expertise. The initial preparer of the document may be asked to further
review or redraft the recommendation and the Documentation, which is
then submitted to the subcommittee for additional review discussion and
recommendation. Once the Subcommittee reaches a decision, the initial
Documentation and recommendation are prepared in a form for submission
to the full TLV Committee. Again, each member of the TLV Committee gets
a copy of the proposed TLV together with the Documentation. The full
Committee may accept the recommendation or recommend that the
Subcommittee again review its findings.
If the full Committee recommends that the Subcommittee-proposed TLV
be approved, the matter is forwarded to the ACGIH Board of Directors.
If the recommendation is ratified by the ACGIH Board of Directors, it
is then posted on the Notice of Intended Change List for approximately
one year. During that time period, comments are invited from all
interested parties, including producers, users, etc of the substance.
It is important to note that the Subcommittee developing a TLV for any
substance welcomes producers and users of that substance to submit
occupational health and industrial hygiene data and comments. ACGIH
regularly publishes information about what substances are being
considered for possible TLVs by the TLV Committee. The TLV
Subcommittees considering specific substances are composed of
volunteers and have only a limited amount of time to meet. Therefore,
except in unusual circumstances, interested parties are requested to
submit information to the Subcommittees and the full Committee in
writing. The Subcommittees are interested in reviewing any and all
relevant scientific studies that have been conducted in accord with
recognized scientific protocols. The Subcommittees generally will not
consider data that has not been obtained and prepared in accord with
accepted scientific methodologies. It is not uncommon for the TLV
Committee or the Subcommittees to get requests from interested parties
to make an oral presentation. However, such requests are generally
denied as the committee has found that such oral presentations are much
less persuasive than sound scientific studies and can take up limited
meeting time necessary for thorough discussions. The Committee has
invited researchers to discuss their findings with them, however, from
time to time.
In Mr. Chajet's testimony, he expresses concern that the TLVs had
once been submitted to the entire ACGIH membership for ratification
whereas now the report of the TLV Committee is submitted to the Board
of Directors for ratification. He implies that the decision by the
Board is in some way less democratic and more autocratic then the
decision by the entire membership. In fact, few ACGIH members attend
the annual Business Meeting of the Association. Typically,
approximately 65 out of 4,200 members have attended that meeting. When
the TLVs were presented for a vote at the Annual Meeting, each member
was provided with the recommendation of the TLV Committee and the
members could vote Yes or No. In all instances, the members voted to
approve the recommendation of the Committee. Although members certainly
could have reviewed the Documentations if they had chosen to do so,
very few did review such Documentations. The ACGIH Board was concerned
that this perfunctory review by the membership served no actual
purpose. The Board felt it would be more responsible to provide a level
of review by the Board of Directors. Each member of the Board has
specific information with regard to the proposed TLVs and access to the
proposed Documentations. In addition, a member of the Board of
Directors serves as a liaison with the TLV Committee and can report to
the Board with regard to the deliberations at the Committee and
Subcommittee levels. With regard to the allegations that there are no
minutes at the Subcommittee and Committee levels, these allegations
again are untrue. The Committee and the Subcommittees do keep minutes.
Although ACGIH has long had a conflict of interest policy, that
policy was based on the concept of members of Committees,
Subcommittees, and the Board of Directors voluntarily disclosing
conflicts of interest or biases when such existed. Recently, in
September 2000, ACGIH adopted a formal conflict of interest policy.
This policy is modeled after the policy followed by the National
Academy of Sciences. Members of the Board and the TLV Committee and
Subcommittees are required to disclose all conflicts of interest and
sign a written form on an annual basis acknowledging that they have
read the ACGIH policy on conflicts of interest and biases and that they
have agreed to fully comply with that policy.
As an industrial hygienist who often consults with industry, I am
well aware of issues involving the practicality of applying a set of
guidelines such as the TLVs. Other major issues that must be considered
by industry include cost and technical feasibility. Reducing workplace
exposure levels is not something that can be typically accomplished
instantaneously. Reduction involves the expenditure of funds and an
evaluation of numerous possible control options with varying degrees of
technical feasibility. As a result, implementation of control options
in a workplace with multiple chemical and physical hazards requires
careful consideration of costs and benefits as well as engineering
feasibility.
These are complex issues that create pressures that government
agencies such as OSHA and MSHA must deal with in a regulatory arena .
When Congress drafted legislation such as the Occupational Safety and
Heath Act, Congress included within the confines of the statue
requirements related to economic efficiency and the availability of
reasonable control technologies. By contrast, ACGIH TLVs and BEls have
no such limitations. ACGIH TLVs and BEIs are designed solely on the
basis of worker health and safety issues. Individual industries are
free to use these guidelines within their own specific health and
safety programs with due consideration to aspects of cost and
feasibility. ACGIH TLVs and BEls state that if a worker is exposed to a
certain substance at a level of ``X'' amount or less, the worker does
not have an unreasonable risk of injury. This level is determined
regardless of the cost of achieving that level of exposure. The level
is determined regardless of whether technology exists to reduce
exposure to that level. Because the ACGIH does not consider factors
such as economic and technological feasibility, the TLVs and BEls do
not meet the criteria placed on most government agencies that set
standards. Therefore, ACGIH does not recommend the TLVs and the BEIs be
used as legal standards. ACGIH specifically says in its Policy
Statement that these guidelines are developed for the use by industrial
hygienists in their normal workplace activities.
Should federal government scientists be allowed to participate in
ACGIH activities? Absolutely! Government lawyers participate in the
American Bar Association activities. ABA Committees, including
government representatives, routinely publish papers analyzing court
decisions and agency regulations. Government physicians who are members
of the American Medical Association, routinely participate on AMA
Committees that publish information with regard to the public health.
Governmental industrial hygienists are no different from government
lawyers and government doctors. They should be allowed to participate
in the activities of a scientific society such as ACGIH as long as
participation in such activities does not violate the conflict of
interest policies established by the various agencies for which they
work and/or the ACGIH Conflict of Interest Policy.
One final point, as a scientist with over 25 years of conducting
research, I strongly disagree with Mr. Chajet's allegation that there
is a lack of scientific justification for certain of ACGIH's TLVs. I am
submitting with this Statement copies of the ACGIH TLVs for Benzene and
Formaldehyde. I ask that the Committee review these Documentations
which are typical of the Documentation for substances covered by a TLV
or BEI. I am sure that you will find that the science supporting this
Documentation meets the highest standards and provides an ample basis
for supporting the position taken. I submit the Benzene TLV because
this TLV is an example of how the TLVs are addressed as new scientific
evidence becomes available. The TLV for Benzene was 100 PPM in 1945. It
was lowered to 50 PPM in 1946, to 35 PPM in 1949, to 25 PPM in 1957, to
10 PPM in 1963, and thereafter to 0.5 PPM in 1997. Unfortunately, in
some cases ACGIH is presented with concerns about a substance for which
there is little scientific data. In these cases the TLV committee may
make a conservative judgement about a TLV. This is not a question of
scientific justification but rather a safety judgement on the part of
ACGIH about what is prudent in the face of scientific uncertainty.
Finally, Mr. Chajet accuses ACGIH of risking its reputation by failing
to solve structural problems. ACGIH, as any scientific organization,
encourages discussion, encourages expressions of new and varying ideas,
and encourages expressions of opposite viewpoints. Within its various
Committees, ACGIH has followed these precepts and as a result, there
are instances where discussions with regard to many issues are heated
and adversarial. These types of discussions only result in a better
review and an end product that more accurately reflects the state of
the art. To encourage these types of discussions and avoid even the
appearances of impropriety, the ACGIH members amended the Bylaws almost
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 federal,
state or local governmental agencies. The ACGIH Board of Directors
recently adopted a more comprehensive conflict of interest and bias
policy as I described above. ACGIH has an extensive website which
includes scientific literature available to persons throughout the
world through the use of the world wide web. The data we rely on is
open and available Our process is open. ACGIH publishes notification of
the substances that are under investigation by the TLV Committee so
that all interested parties are aware of the substances under
consideration. ACGIH publishes proposed TLVs and BEIs a year before the
TLVs or BEIs become effective so that all interested parties have ample
opportunity to comment and submit data. We encourage input from any and
all parties. We never publish a TLV or BEI without a full and
comprehensive Documentation. We tell the world that TLVs and BEIs are
only guidelines and should not be used as standards.
As Mr. Chajet has stated in his testimony: The ACGIH name and the
TLV trademark are recognized and respected around the world, based on a
50 year history of advancing the heath protection of the workforce.''
There is no reason that this Committee should deny a government
employee the right to participate in ACGIH activities if that employee
follows the rules and regulations of his or her respective agency.
ACGIH thanks you for this opportunity to present this Statement. If
you have any further questions with regard to ACGIH, please contact me
and I will be glad to provide answers to your inquiries.
______
School of Hygiene and Public Health,
Johns Hopkins University,
Baltimore, MD, June 21, 2001.
Mr. Steven John Fellman,
Galland, Kharasch, Greenberg, Fellman and Swirsky, Washington, DC.
Dear Mr. Fellman: I would like to advise you that Mr. Henry Chajet
held the part-time faculty title of ``Associate'' in the Department of
Environmental Health Sciences of the Johns Hopkins Bloomberg School of
Public Health (formerly the Johns Hopkins School of Hygiene and Public
Health.) He held the title from January 1984 through June 2000. In that
capacity, Mr. Chajet was co-instructor (with Mr. David Blum) of an 8-
week course entitled ``Occupational Safety and Health Law'' that was
taught annually.
Mr. Chajet has never held the title of ``Associate Professor of
Safety and Health Law'' at the School of Public Health.
Please contact me with any questions.
Sincerely,
Robin Fox, M.S.,
Assistant Dean for Academic Affairs.
______
ACGIH Worldwide,
1330 Kemper Meadow Drive,
Cincinnati, OH, January 15, 2002.
James A. Bair,
Vice President, North American Millers' Association, 1600 Maryland
Avenue, SW, Washington, DC.
Robb S. MacKie, II,
Vice President, Government Relations, American Bakers Association, 1350
I Street, NW, Washington, DC.
Dear Jim and Robb: ACGIH has reviewed your request that it clarify
its position on the use of Threshold Limit Values (TLVs), prepare a
substantive response to the SOMA Report, and put the TLV for Flour Dust
back on the Notice of Intended Changes (NIC).
Enclosed is a new statement of position regarding the use of the
TLVs. This statement clearly communicates ACGIH's position that TLVs
are not to be used as standards by government agencies or other
organizations. We are sending a copy of this statement to the Canadian
authorities listed in Mr. Harrison's letter of January 4, 2002
addressed to ACGIH, and are posting this statement on the ACGIH website
and publishing it in our newsletter, Today!. We have met with OSHA and
provided that agency with a copy of this statement. We would be glad to
send additional copies of this statement to state regulatory officials.
If you have names and addresses of such persons that should get copies
of the statement please provide them to us.
Also enclosed is the ACGIH analysis of the SOMA Report. This
analysis was done by the TLV Committee and reviewed and approved by the
ACGIH Board of Directors. Although neither the TLV Committee nor the
Board of Directors believes that the SOMA Report provides a basis to
put the Flour Dust TLV back on the NIC, ACGIH is always willing to look
at new peer-reviewed literature. If any new peer-reviewed literature
regarding Flour Dust is brought to ACGIH's attention, you can be sure
that the TLV Committee will give full consideration to any new data,
and then recommend whatever revisions it believes are appropriate to
the TLV.
In conclusion, based upon the enclosed analysis, ACGIH has decided
to retain the adopted TLV for Flour Dust and to not put it back on the
NIC for 2002. It is our desire to maintain open lines of communication
between ACGIH and the baking and milling industries. Should new peer-
reviewed literature become available, please do not hesitate to bring
it to our attention. The TLVs are not carved in stone. ACGIH is always
willing to review and consider new peer-reviewed literature. Further,
we would be glad to work with you to ensure the message on the
appropriate use of the TLVs is communicated to the proper individuals
and officials. Simply provide us with a list of names and addresses,
and we will send them a copy of the ACGIH position statement on the use
of TLVs.
Please do not hesitate to contact Steve Fellman or me if you have
any questions.
Sincerely,
A. Anthony Rizzuto,
Executive Director.
______
ACGIH Worldwide,
1330 Kemper Meadow Drive,
Cincinnati, OH, January 15, 2002.
Gordon Harrison,
President, Canadian National Millers Association 90 Sparks Street,
Ottawa, Ontario, Canada.
Paul Hetherington,
President and CEO, Baking Association of Canada, 7895 Tranmere Drive,
Mississauga, Ontario, Canada.
Dear Gordon and Paul: ACGIH has reviewed your request that it
clarify its position on the use of Threshold Limit Values (TLVs),
prepare a substantive response to the SOMA Report, and put the TLV for
Flour Dust back on the Notice of Intended Changes (NIC).
Enclosed is a new statement of position regarding the use of the
TLVs. This statement clearly communicates ACGIH's position that TLVs
are not to be used as standards by government agencies or other
organizations. We are sending a copy of this statement to the Canadian
authorities listed in Mr. Harrison's letter of January 4, 2002
addressed to ACGIH, and are posting this statement on the ACGIH website
and publishing it in our newsletter, Today!. We have met with OSHA and
provided that agency with a copy of this statement. We would be glad to
send additional copies of this statement to state regulatory officials.
If you have names and addresses of such persons that should get copies
of the statement please provide them to us.
Also enclosed is the ACGIH analysis of the SOMA Report. This
analysis was done by the TLV Committee and reviewed and approved by the
ACGIH Board of Directors. Although neither the TLV Committee nor the
Board of Directors believes that the SOMA Report provides a basis to
put the Flour Dust TLV back on the NIC, ACGIH is always willing to look
at new peer-reviewed literature. If any new peer-reviewed literature
regarding Flour Dust is brought to ACGIH's attention, you can be sure
that the TLV Committee will give full consideration to any new data,
and then recommend whatever revisions it believes are appropriate to
the TLV.
In conclusion, based upon the enclosed analysis, ACGIH has decided
to retain the adopted TLV for Flour Dust and to not put it back on the
NIC for 2002. It is our desire to maintain open lines of communication
between ACGIH and the baking and milling industries. Should new peer-
reviewed literature become available, please do not hesitate to bring
it to our attention. The TLVs are not carved in stone. ACGIH is always
willing to review and consider new peer-reviewed literature. Further,
we would be glad to work with you to ensure the message on the
appropriate use of the TLVs is communicated to the proper individuals
and officials. Simply provide us with a list of names and addresses,
and we will send them a copy of the ACGIH position statement on the use
of TLVs.
Please do not hesitate to contact Steve Fellman or me if you have
any questions.
A. Anthony Rizzuto,
Executive Director.
______
ACGIH Worldwide,
1330 Kemper Meadow Drive,
Cincinnati, OH, January 15, 2002.
James A. Bair,
Vice President, North American Millers' Association, 1600 Maryland
Avenue, SW, Washington, DC.
Robb S. MacKie, II,
Vice President, Government Relations, American Bakers Association, 1350
I Street, NW, Washington, DC.
Gordon Harrison,
President, Canadian National Millers Association 90 Sparks Street,
Ottawa, Ontario, Canada.
Dear Sirs: The TLV Committee expresses its thanks, again, for your
comments on the Flour Dust TLV Documentation. Your input is
appreciated.
The Committee has reviewed the August 2000 report prepared by
Sandler Occupational Medicine Associates, Inc. (SOMA) for the North
American Millers' Association, American Bakers Association, and
Canadian National Millers Association. Some of the materials reviewed
by SOMA were not included in the initial TLV Documentation, because
they were published after the Documentation was prepared. The Committee
has incorporated these references into the Documentation, where
appropriate. Thank you for calling these to our attention.
The Committee does not usually respond directly, or in detail, to
the comments it receives, because its opinions are reflected solely in
its written Documentation. Rather, the Committee reviews all such
comments and makes changes to its written Documentation, as
appropriate. In the case of the Flour Dust TLV Documentation, in
addition to including new references, the TLV recommendation section
was re-written to further explain which studies and issues played a key
role in the committee's decision to recommend a TLV of 0.5 mg/m3. You
will note that the rewritten Documentation includes specific emphasis
on the studies by Hartmann et al. (1985 and 1986), Awad el Karim et al.
(1986), Musk et al. (1989), De Zotti et al. (1994), Cullinan et al.
(1994 and 2001), Bohadana et al. (1994), Massin et al. (1995),
Shamssain (1995), Gimenez et al. (1995), and Zuskin et al. (1998), as
well as studies relied upon in the original Documentation.
The Committee has agreed, contrary to its usual practice, to
respond to comments expressed in the report prepared by SOMA. Our
responses are directed to the three specific issues raised in the SOMA
report.
1. Sensitization As An End-Ppoint
The SOMA report argues that sensitization should not be the health
end-point of concern, because there is a low correlation between
respiratory symptoms and skin or immunoassay tests. On the other hand,
the SOMA report readily admits that bakers' asthma and respiratory
sensitization are well-known health endpoints resulting from exposure
to airborne Flour Dust. It also recognizes that respiratory symptoms
may occur due to irritation effects of the dust. The report concludes
that, if sensitization is of importance, it is likely to occur at
airborne levels lower than levels at which respiratory symptoms due to
irritation will occur.
The TLV Committee is not persuaded by the argument that a low
correlation of skin or immunoassay tests with symptoms means that
sensitization is a health end-point that should be ignored. A
preponderance of the data ranging from human case reports to
epidemiologic studies points to this end-point as one of importance.
The TLV Committee would be remiss in its mission to guide industrial
hygienists if it were to conclude that sensitization is an unimportant
health end-point, simply because the data are confounded by the effects
of irritation and the relative non-specificity of current health
outcome measures. Sensitization can result in debilitating disease that
can lead, eventually, to an inability to work.
Furthermore, the SOMA report suggests that:
1. ``Research in this area as reported by many independent studies
has found that sensitization to Flour Dust does not account for a
majority of reported symptoms in flour workers.''
and
2. ``The position of the ACGIH document, that sensitization is the
chief health outcome of concern, is, therefore, not supported by the
scientific evidence.''
TLVs are set based on the most significant health threat associated
with exposure to a given chemical. For example, the TLV for benzene is
set based on its carcinogenic potential, not its CNS effects. Deciding
which health outcome is the most significant requires more than an
analysis of what effect occurs most commonly. The medical consequences
associated with the health outcome are also considered. In the case of
Flour Dust, sensitization and the manifestation of allergic/asthma
symptoms is a more significant outcome than simple irritation. As a
result, the Committee believes this to be the most important health
end-point of concern for this substance.
The SOMA report notes that there are flour additives that can cause
allergy. The TLV Committee agrees and discusses this issue in its
Documentation. However, it is clear that materials inherent to Flour
Dust (proteins, enzymes, etc.) can be both sensitizing and irritating.
Thus, the Committee has chosen to address Flour Dust as a single
substance. It has indicated its interest in developing separate TLVs
for some of the allergenic additives (such as alpha amylase), as well.
2. Study Criteria
We agree with the SOMA report that there are many shortcomings in
the currently available literature. We agree that the data are limited
and that there is no particular study, including that by Houba (1998),
which points conclusively to a specific threshold of exposure below
which sensitization will not occur. The TLV recommendation section in
the Documentation was re-written to demonstrate that a number of
studies, including those listed above, point to the recommended TLV.
The Committee does not make its decisions in the manner suggested
by the SOMA report--by eliminating studies from its consideration when
they do not meet the high standards described. Rather, the Committee
evaluates each study carefully, taking into consideration both
strengths and weaknesses. The Committee considers all of the literature
together, and if it finds that there is a preponderance of evidence for
a particular health effect, it makes its best effort to determine the
level below which it is likely that that health effect will not occur.
The Committee strives to select the health effect(s) of greatest
significance to the long-term health of employees.
As noted above, the Committee welcomes comments on its written
Documentation. However, the Committee suggests, respectfully, that to
exclude or include certain studies solely on the basis of sets of
criteria is unduly restrictive. Such an approach reflects a difference
in opinion, rather than a matter of scientific understanding, and would
result in the elimination of data that could be significant. The
Documentation developed by the TLV Committee represents an opinion
about data that are available in the peer-reviewed, published
literature. Other parties are welcome to publish their own opinions
about these data, which may differ from those of the Committee. We
encourage SOMA to publish its report to make it available to the
scientific community for broader inclusion in public discussions about
Flour Dust health effects.
3. Exposure Threshold
The TLV Committee agrees with the SOMA report that a ``threshold
based upon sensitization is likely to be considerably lower than one
based upon prevention of non-allergic (e.g. irritant) effects.'' Since
the Committee is persuaded by its review of the literature that
sensitization is a key health end-point for this substance, it has
sought to find a level for airborne Flour Dust below which nearly all
workers are unlikely to develop sensitization. This level should
provide assurance, as well, that exposures will not lead to respiratory
symptoms resulting from respiratory tract irritation.
The TLV Committee has not relied solely on the Houba (1998) study
for its recommendation of a TLV at 0.5 mg/m3. Rather, it has concluded
from its review of a number of studies (listed above), and in
particular those by Musk et al. (1989), Cullinan et al. (1994 and
2001), and Houba et al. (1996), listed in the TLV Recommendation
section of the Documentation, that the TLV should be less than 1 mg/m3.
The Committee has elected to recommend a level of 0.5 mg/m3.
Again, we thank the North American Millers' Association, American
Bakers Association, and Canadian National Millers Association for their
input on the TLV Documentation for Flour Dust. Changes were made to the
Documentation to elucidate some of the issues raised and to include new
references. We hope that this letter will serve to explain why the SOMA
report did not persuade the Committee to remove this substance from its
list of adopted values or to place this substance back on its list of
substances and issues under study.
Sincerely,
Lisa M. Brosseau, ScD,
Chair, TLV Chemical Substances Committee.
______
Statement of Position Regarding the TLVs and BEIs*
The American Conference of Governmental Industrial Hygienists
(ACGIH) is a private not-for-profit, nongovernmental corporation whose
members are industrial hygienists and other occupational health and
safety professionals dedicated to promoting health and safety within
the workplace. ACGIH is a scientific association. ACGIH is not a
standard setting body. As a scientific organization, it has established
committees that review existing published, peer-reviewed scientific
literature. ACGIH proposes guidelines known as Threshold Limit Values
(TLVs) and Biological Exposure Indices (BEIs) for use by industrial
hygienists in making decisions regarding safe levels of exposure to
various chemical and physical agents found in the workplace. In using
these guidelines, industrial hygienists are cautioned that the TLVs and
BEIs are only one of multiple factors to be considered in evaluating
specific workplace situations and conditions.
Each year ACGIH publishes its TLVs and BEIs in a book. In the
introduction to the book, ACGIH specifically states that the TLVs and
BEIs are guidelines to be used by professionals trained in the practice
of industrial hygiene. The TLVs and BEIs are not designed to be used as
standards. Nevertheless, ACGIH is aware that in certain instances the
TLVs and the BEIs are used as standards by national governments, state
governments, and local governments.
Governmental bodies establish public health standards based on
statutory and legal frameworks that include definitions and criteria
concerning the approach to be used in assessing and managing risk. In
most instances, governmental bodies that set workplace health and
safety standards are required to evaluate health effects, economic and
technical feasibility, and the availability of acceptable methods to
determine compliance with the proposed standard.
ACGIH TLVs and BEIs are solely health-based values. ACGIH TLVs and
BEIs are established by committees that review existing published and
peer-reviewed literature in various scientific disciplines (e.g.,
industrial hygiene, toxicology, occupational medicine, and
epidemiology). Based on the available information, ACGIH formulates a
conclusion on the level of exposure that the typical worker can
experience without an unreasonable risk of disease or injury. The TLV
and BEI are not quantitative estimates of risk at different exposure
levels or by different routes of exposure.
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*ACGIH is publishing this Statement in order to assist ACGIH
members, government regulators, and industry groups in understanding
the basis and limitations of the TLVs and BEIs when used in a
regulatory context. This Statement was adopted by the ACGIH Board of
Directors on January 11, 2002.
---------------------------------------------------------------------------
Since ACGIH TLVs and BEIs are based solely on health factors, there
is no consideration given to economic or technical feasibility.
Regulatory agencies should not assume that it is economically or
technically feasible for an industry or employer to meet TLVs or BEIs.
Similarly, although there are usually valid methods to measure
workplace exposures at TLVs and BEIs, there can be instances where such
reliable test methods have not yet been validated. Obviously, such a
situation can create major enforcement difficulties if a TLV or BEI was
adopted as a standard.
ACGIH does not believe that TLVs and BEIs should be adopted as
standards without an analysis of other factors necessary to make
appropriate risk management decisions (e.g., control options, technical
and economic factors, etc.). However, ACGIH does believe that
regulatory bodies should certainly consider TLVs or BEIs as valuable
input into the risk characterization process (hazard identification,
dose-response relationships, and exposure assessment). Regulatory
bodies should view TLVs and BEIs as an expression of scientific
opinion.
ACGIH is proud of the scientists and the many members who volunteer
their time to work on the TLV and BEI Committees. These experts develop
written Documentation that include an expression of scientific opinion
and a description of the basis, rationale, and limitations of the
conclusions reached by ACGIH. The Documentation provides a
comprehensive list and analysis of all the major published peer-
reviewed studies that ACGIH relied upon in formulating its scientific
opinion. Regulatory agencies dealing with hazards addressed by a TLV or
BEI should obtain a copy of the full written Documentation for the TLV
or BEI. Any use of a TLV or BEI in a regulatory context should include
a careful evaluation of the information in the written Documentation
and consideration of all other factors required by statute under the
regulatory procedures of the governmental body involved.
ACGIH is a not-for-profit scientific association.
ACGIH proposes guidelines known as TLVs and BEIs for use
by industrial hygienists in making decisions regarding safe levels of
exposure to various hazards found in the workplace.
ACGIH is not a standard setting body.
Regulatory bodies should view TLVs and BEIs as an
expression of scientific opinion.
ACGIH TLVs and BEIs are based solely on health factors;
there is no consideration given to economic or technical feasibility.
Regulatory agencies should not assume that it is economically or
technically feasible to meet established TLVs or BEIs.
ACGIH believes that TLVs and BEIs should NOT be adopted as
standards without an analysis of other factors necessary to make
appropriate risk management decisions.
TLVs and BEIs can provide valuable input into the risk
characterization process. Regulatory agencies dealing with hazards
addressed by a TLV or BEI should review the full written documentation
for the numerical TLV or BEI.
______
[Additional court order submission from Mr. Owens follows:]
[Submitted and placed in permanent archive file, Court Order,
International Brominated Solvents Association v. American Conference of
Governmental Hygienists, Inc., No. 5:04CV394 (D.M.D. Ga., 2005).]