HEARING ON H.R. 3160, COMPREHENSIVE OCCUAND HEALTH REFORM

PATIONAL SAFETY

ACT [TITLE IV)

THURSDAY, APRIL 2, 1992

HOUSE OF REPRESENTATIVES,

COMMITTEE ON EDUCATION AND LABOR,

Washington, DC.

The committee met, pursuant to call, at 9:40 a.m., Room 2175, Rayburn House Office Building, Hon. William D. Ford, Chairman, presiding.

Members present: Representatives Ford, Clay, Martinez, Owens, Hayes, Sawyer, Serrano, Andrews, Reed, Roemer, Pastor, Goodling, Petri, Gunderson, Fawell, Henry, Ballenger, Molinari, Barrett, and Klug.

Majority staff present: Ross Eisenbrey, general counsel; Randy Rabinowitz Nelson, counsel; and Philene Taormina, legislative analyst.

Minority staff present: Gary Visscher, professional staff member; and Randel Johnson, labor coordinator.

Chairman FORD. The committee will come to order. This is a continuation of our legislative hearings on H.R. 3160, the Comprehensive Occupational Safety and Health Reform Act. This morning we're going to talk about the OSHA standard-setting processes that are giving us difficulty at the present time.

[The prepared statement of the Hon. William D. Ford follows:] STATEMENT OF HON. WILLIAM D. Ford, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Today, the committee will continue its legislative hearings on H.R. 3160, the Comprehensive Occupational Safety and Health Reform Act. This morning's hearing will address reform of OSHA's standard setting processes,

In 1970, when Congress passed the Occupational Safety and Health Act, we recognized that the marketplace would not adequately protect worker health without government intervention. But, 20 years later, some people still have not accepted the basic principle that the protection of worker safety should be a cost of doing business.

Of course, we expect the Washington business lobby to oppose OSHA regulationit is in their pecuniary interest to resist safety and health improvements. Lately, however, OSHA itself has become a partner in the business community's efforts. But, those who would line their pockets at the expense of worker health and safety have found their most ardent support in the halls of the Office of Management and Budget.

While the pace of OSHA standard setting has always been slower than Congress had hoped, since 1981, OSHA and OMB have become ever more mean spirited in concocting ways to avoid issuing standards to protect workers from hazards on the job. Even where OSHA recognizes that workplace exposures are killing people, the agency will drag out rulemaking interminably before issuing a standard. After

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OSHA finally acts, OMB review further drags out the process. That is why my OSHA reform bill would set firm deadlines for the OSHA standard setting process. OSHA rulemaking should be a public process, with all interested parties submitting their views for the record. In its zeal to do the bidding of greedy business people, OMB has opened its doors wide to corporate interests, but kept workers standing outside in the cold. Behind closed doors, OMB and employers decide which OSHA regulations to weaken. OMB then demands that OSHA make changes in its rules, but its influence remains hidden. That is why my OSHA reform bill requires that all OSHA contacts with OMB or others be publicly disclosed.

Most cold-hearted of all, OMB insists that worker health and safety be balanced against other costs. Using this analysis, OMB has never advocated stricter OSHA standards, always weaker standards. According to OMB, its alright to poison workers, even when we know how to prevent such illnesses, if some accountant says prevention is too expensive. We don't agree. That is why my OSHA reform bill would bar use of cost-benefit analysis for safety standards, as it already does for health standards.

While economists portray cost-benefit analysis as a neutral method for deciding whether to regulate, you should not be fooled. It is a tool that is easily manipulated. In the OSHA context, costs are always overestimated. Benefits are always underestimated, or ignored completely. Indeed, cost-benefit analysis would suggest that we continue slavery, because it was profitable for Southern landowners in the 19th century. It is immoral to maim, incapacitate and kill workers just to inflate corporate profits. No decent society should treat its citizens that way. It is shameful that this "kinder, gentler" administration should advocate such a course.

If I had any doubts about the value of cost-benefit analysis, OMB's recent effort to delay publication of revised toxic exposure limits would convince me such analysis should be banned. According to OMB, employers take the cost of OSHA standards out of worker's paychecks. When workers earn less, in OMB's view, they are less healthy. Using this logic OMB claims that reducing toxic exposure levels at work will harm workers. These fringe economic theories now pass for policy in Washing

ton.

Of course, OMB only makes these arguments when their effect is to decrease the protections available to workers. Using OMB's logic, an increase in the minimum wage would increase worker health, but we don't see this administration advocating such a change. No. Cost-benefit analysis is a means toward and end-heads business wins; tails workers lose.

Since OMB announced its new theory, I have been concerned about whether OSHA can permissibly consider these issues. Documents submitted to the committee, and which we are making public today, reveal that the Labor Department-as recently as last October-believed it was improper to conduct the analysis OMB has suggested. What is more, the Labor Department also concluded that cost-benefit analysis should not be used to evaluate OSHA standards. The Labor Department strongly recommended that it be permitted to appeal a U.S. Court of Appeals decision advocating such analysis.

The Labor Department never got that permission. OMB went to the Justice Department and apparently made up some numbers about the costs of OSHA regulation. We are not sure what OMB said. We are not sure why the Justice Department would not allow this appeal to go forward. We do know that the Justice Department is hiding the documents that would answer our questions. We intend to find out why.

Chairman FORD. On the panel we have Mr. Thomas McGarity, Professor of Law at the University of Texas, Austin, Texas; Mr. Jack Sheinkman, President of Amalgamated Clothing and Textile Workers; Dr. Philip Landrigan, Chairman, Department of Community and Environmental Medicine, Mount Sinai Hospital, New York; and Jim Miller, Chairman of the Board, Citizens for a Sound Economy, in Washington, DC.

Without objection, the prepared statements of each of the witnesses will be inserted in the record immediately following their oral comments. We'll hear from the whole panel and then take questions from the committee.

Dr. Landrigan.

STATEMENT OF PHILIP LANDRIGAN, M.D., CHAIRMAN, DEPARTMENT, OF COMMUNITY AND ENVIRONMENTAL MEDICINE, MOUNT SINAI HOSPITAL, NEW YORK, NEW YORK; JACK SHEINKMAN, PRESIDENT, AMALGAMATED CLOTHING AND TEXTILE WORKERS, NEW YORK, NEW YORK; THOMAS MCGARITY, PROFESSOR OF LAW, UNIVERSITY OF TEXAS, AUSTIN TEXAS; AND JAMES C. MILLER, III, CHAIRMAN OF THE BOARD, CITIZENS FOR A SOUND ECONOMY, WASHINGTON, DC

Dr. LANDRIGAN. Thank you, sir. Mr. Chairman, my name is Phillip Landrigan. I'm Professor of Community Medicine and Director of the Division of Environmental and Occupational Medicine of the Mount Sinai School of Medicine in New York.

I'm pleased to appear before you today to testify in strong support of H.R. 3160, the Comprehensive Occupational Safety and Health Reform Act. I'm also pleased to give the act the strong support of the several organizations that I represent here today, the American Public Health Association, the Mount Sinai School of Medicine, and the Association of University Programs in Occupational Health and Safety. I should like to note that the Association of University Programs testified recently in support of this bill on the Senate side and, with your permission, I would like to submit the testimony of the Association for the record today. I have a copy here.

In the 22 years that have passed since the signing of the Occupational Safety and Health Act progress has undoubtedly been made in the prevention of occupational disease in this country. Some of the worst abuses have been curbed. Secrecy about work-related hazards is less common. High expectations about safety and health on the job have been created and those expectations cannot be eradicated.

Nevertheless, in this country, success in eliminating work-related disease has remained elusive. Cancer mortality is increasing and occupational exposures appear to account, at least in part, for this increase. Asbestos is used less commonly than it was in the past. Nevertheless, thousands of workers continue to be exposed to asbestos. It's estimated that approximately 10,000 American workers will die each year from now until the end of the century from the diseases that are caused by asbestos. Silicosis is still common in foundries. The recent tragedy in the chicken factory in North Carolina reminds us that safety hazards are common. Each year 10,000 American workers die of acute trauma on the job.

Child labor is on the increase, something that we thought had been eradicated in the 1930's and the 1940's is now back with us. This past year in New York State alone, for example, 1,200 children received workers' compensation awards for on-the-job injury, and 43 percent of those awards were for permanent disability to children.

Our group at Mount Sinai, at the request of the New York State legislature, several years ago developed an estimate of the current extent of occupational disease. We've calculated that each year in New York State alone between 4,700 and 6,600 deaths are caused by chronic diseases that result from past exposure to toxic sub

stances in the workplace. These diseases include the diseases caused by asbestos, silica, lead, neurotoxins.

When we extrapolate these estimates to the entire United States we calculate that each year in the country between 50,000 and 70,000 deaths are caused by chronic occupational disease and then another 350,000 new cases of illness. Those numbers do not include the 10,000 people who die on the job each year of acute traumatic injury.

I point out with reference to the recent literature that we've seen from the OMB that the costs of these diseases are not trivial. The direct and indirect medical costs that are incurred each year in the United States as the result of occupational disease are estimated to exceed $6 billion. These costs contribute substantially to the overall increases in health care costs in this country.

The great tragedy of the current situation in occupational health is that work-related diseases and injuries are unnecessary. They're preventable. They arise as a consequence of man-made conditions and they can be prevented through modification of those conditions.

The bill which is before us today has the potential to make a strong impact in preventing occupational disease. Three provisions of the bill in particular are of great importance.

One is the extension of OSHA coverage to those millions of workers in construction, in agriculture, in the maritime trades, government employees who at present are not covered by the act.

Second, the streamlining of the standard-setting procedures is very important. Too many OSHA standards are outdated, based on old data, rely on the quasi-standard setting procedures adopted by the American Conference of Governmental Industrial Hygienists. Those inadequate procedures for setting standards need to be overturned and streamlined, and the provisions in the bill will accomplish that.

Finally, the provisions in the bill that strengthen the role of the National Institute for Occupational Safety and Health, NIOSH, are very important. And I commend you for having written that language.

Thank you.

[The prepared statement of Philip Landrigan and the prepared statement of Ian Greaves follows:]