STATEMENT OF DAVID C. VLADECK, ESQ.,
PUBLIC CITIZEN LITIGATION GROUP

BEFORE THE HOUSE COMMITTEE ON EDUCATION AND LABOR
UNITED STATES CONGRESS

ON H.R. 3160, THE COMPREHENSIVE OCCUPATIONAL
SAFETY AND HEALTH REFORM ACT

MAY 1992

Mr. Chairman and members of the Committee.

Thank you for

the opportunity to share my views on the Comprehensive Occupational Safety and Health Reform Act, which will add muchneeded protection to our nation's working men and women.

I am a lawyer with Public Citizen Litigation Group, the legal arm of Public Citizen, Inc., a nationwide advocacy organization of over 140,000 members that has long been active in protecting the rights of workers. For the past fourteen years I have represented labor unions, worker groups, and public health organizations in standard-setting proceedings before the Occupational Safety and Health Administration (OSHA). I have also represented parties in federal court litigation, both in cases to compel OSHA to take action and to challenge OSHA standards that were not sufficiently protective of workers.'

1 See, e.q., Ethylene oxide: Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983); Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986); Public Citizen Health Research Group v. Brock, 823 F.2d 626 (D.C. Cir. 1987); Hazard Communication: United Steelworkers of America y. Auchter, 763 F.2d 728 (3d Cir. 1985); 819 F.2d 1263 (3d Cir. 1987); 855 F.2d 130 (3d Cir. 1988); 862 F.2d 63 (3d Cir. 1988), aff'd, 110 S. Ct. 929 (1990); Formaldehyde: International Union. UAW v. Pendergrass, 878 F.2d 369 (D.C. Cir. 1989); Benzene: United Steelworkers v. Rubber Manufacturers Ass'n, 783 F.2d 1117 (D.C. Cir. 1986): Cadmium: International Chemical Workers Union v. Pendergrass, 830 F.2d 369 (D.C. Cir. 1987); Order in No. 891357 (D.C. Cir., Feb. 12, 1990 and March 20, 1992); Grain Dust: National Grain and Feed Ass'n v. OSHA, 866 F.2d 717 (5th Cir. 1988); and Lockout/tagout: International Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991).

Public Citizen strongly supports H.R. 3160 and the concepts it embodies. OSHA reform is long overdue. As explosions in chemical plants and fires in food-processing facilities remind us almost daily, the American workplace is still far too hazardous. Ten thousand American workers are killed every year on the job. Hundreds of thousands more are disabled, injured, or suffer a significant workplace-related illness. While it is true that the rate of workplace deaths has declined since the enactment of the OSH Act two decades ago, so too have the number of jobs American workers hold in the historically high-risk smokestack industries. And injury and lost work-day rates have either remained stable or have increased over the past twenty years. This statistic is particularly alarming when it is recognized that the Bureau of Labor Statistics does not even count those workers injured as a result of exposure to slow acting toxins and harmful physical agents. Thus the picture is even grimmer than the cold Labor Department statistics reveal.

Nonetheless, these statistics make evident that the lofty goals of the 1970 OSH Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions"

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are almost as out of reach today as they were twenty years ago. The system is broken and must be repaired if this aspiration is to be fulfilled.

My experience with OSHA relates primarily to the standardsetting process. Thus, I will focus my remarks on those portions of H.R. 3160 that are designed to improve the ability of OSHA to expedite the development of both health and safety standards.

I

will begin by discussing those provisions of H.R. 3160 that mark a real step forward from existing law. Then I will discuss the issues that are vital to effective OSHA reform, but are left unaddressed by H.R. 3160.

H.R. 3160 MARKS AN IMPORTANT STEP FORWARD

The Need For Reform

The theory underlying Title IV of H.R. 3160 (the Reform Act) is that OSHA's standard-setting process is fundamentally flawed and needs to be overhauled. That assessment is unassailable. Over the past decade, OSHA standard setting has proceeded at a glacial pace. Few standards have been issued, and it now takes OSHA four or five years to issue a standard, measured from the time OSHA first recognizes that regulatory action must be taken. Delays of this sort are intolerable where lives and health are at stake.

Let me use a real-life example to show how these delays and pitfalls in the process exact a shameful toll on our nation's workers. Cadmium is a soft, malleable metal that is used in many industrial settings. Among other things, cadmium and cadmiumcontaining compounds are used in smelting zinc, copper, and lead ores, in battery manufacturing, in pigments and plastics, and in metallurgy, including cadmium-plating, welding, and solder.

Nearly three hundred thousand workers are exposed to cadmium every day on the job.

OSHA's existing standard for cadmium was promulgated as a

Following

stop-gap, consensus standard in 1971. It was not designed to protect workers from the cancer and kidney risks now known to be caused by cadmium exposure; rather, it was intended to prevent toxic effects from short-term exposures to high-doses. adoption of the consensus standard, a series of clinical and epidemiological studies-- many conducted by the National Institute for Occupational Safety and Health (NIOSH) -established that cadmium causes serious and irreversible damage to the kidney, as well as both lung and prostate cancer. These studies provoked concern within government health and safety agencies. Based on these studies, in 1976 NIOSH urged OSHA to cut the permissible exposure limit drastically. Then, in 1982, the Environmental Protection Administration (EPA) recommended that OSHA reduce the exposure limits established in its standard to protect workers from kidney disease, concluding that without a reduction in exposures "50 to 500 workers per year will be disabled with kidney disease requiring dialysis" due to cadmium exposure. In 1984, NIOSH issued a current intelligence bulletin, again calling for a reduction in the standard. And in 1985, EPA issued a risk assessment predicting that, at cadmium levels permitted by OSHA, there could be as many as 51 excess cancer deaths per 1,000 workers exposed to cadmium over a working lifetime.

The most important development, however, took place in 1985 when a team of NIOSH epidemiologists issued a report on a study