the authority to issue regulations under the Clean Air Act. I know that Mr. McIntosh was not confirmed by the United States Senate. I know that he is not accountable to the Environment and Public Works Committee which has oversight responsibility for the Clean Air Act, certainly not in the way that Administrator Reilly is accountable.

The Council on Competitiveness for which he works was not even formed by executive order but rather announced by press release and has no statutory basis and no legal authority to write regulations. Nor is Mr. McIntosh in that sense in any way responsible to the public. The record on the EPA permit rule contains no details concerning the people or industries that may have spoken to Mr. McIntosh before he issued his dramatic memo which changed the regulations and the effect of the Act.

Mr. Chairman, the rewriting of EPA's permit rule by the Office of the Vice President undermines a very basic principle of administrative law: Congress delegates authority to administrative agencies because they are staffed with experts in technical and scientific fields. That principle is also the basis for the substantial deference accorded by our courts to technical and scientific judgments of agencies as reflected in the rules. But I think we have got to begin to question this deference and whether it should be granted to agencies today if the rules are really being written by individuals outside the agencies who may have no expertise in the subject matter field.

Now on this story, there is some potentially good news. EPA's Office of General Counsel apparently has had enough, and in a recent memo concluded that it was highly unlikely that a court would uphold a permit rule as changed by the Council on Competitiveness, the Vice President's office. That some of the provisions of the Council's permit rule, according to the EPA General Counsel, were illegal and in violation of Congress' clear intent. So EPA, to its great credit, has announced that it is now going back to the Council and the White House asking for changes.

Mr. Chairman, very briefly, I would like to discuss one other EPA rule which concerns lead acid batteries. I happen to have devoted a fair amount of time over the last couple of years to legislation aimed at eliminating lead from our environment because it is the most pervasive and preventive childhood environmental disease in America today. In November of 1989, EPA issued a proposed rule on separating recyclable materials from incinerators that would have prohibited the incineration of lead batteries. In doing so, EPA stated, "Lead is a metal of particular concern in the solid waste stream because of its relatively high levels in incinerators, which has a serious potential health and environmental effects. Studies by EPA have shown that lead acid batteries are the primary source of lead in garbage. In 1986, lead acid batteries produced 65 percent of the lead in garbage."

In short, Mr. Chairman, in one step, EPA proposed to take action which could have dramatically reduced the release of lead from incinerators, which are a major source of airborne lead, and in that sense a major threat to the health of our children. Yet, unbelievably, and I really do say unbelievably, the Council on Competitiveness in December of 1990 in a press release announced that it was

killing EPA's rule because it did not meet the "benefit cost requirements for regulatory policy laid out in Executive Order 12291.'"

The Council took this action without any written analysis, and despite the fact that no government agency had openly opposed this provision. Mr. Chairman, to me this does not sound like a council on competitiveness. I cannot believe the American people in their wildest would want to achieve competitiveness by threatening the health of our children, which lead does. Earlier this week, the Vice President himself gave a speech setting forth his views on the purposes of the Council on Competitiveness, and I must say with all respect to the Vice President, that there are sections of this speech that are right out of George Orwell.

I quote, "One of the reasons the Council exists is to prevent special interests from using the regulatory process to reverse legislative intent. There are those who try to use the regulatory process to promote policy outcomes that Congress neither sought nor intended. The Competitiveness Council is not beholden to special interest. Our special interest is the American people."

Well, I wonder whether the American people who suffer from respiratory illness as a result of polluted air feel that this Council was protecting them when it so dramatically changed the permit rule under the Clean Air Act? I wonder whether the doctors and childhood advocates who have been working so hard to protect our people, and particularly our children, from lead poisoning feel that the Council was protecting the American people from special interests when it killed EPA's airborne lead regulations? Based on my review of the record of the Council, to put it mildly, Mr. Chairman, I don't agree with the Vice President's statement. I think it has no contact with the reality of what this Council has done. And I look forward to asking our witnesses today how they feel about this analysis. Thank you, Mr. Chairman.

Chairman GLENN. Thank you very much. Senator Kohl very correctly pointed out this is not a balanced hearing. We usually try and have a balanced hearing. We tried to have this one be a balanced hearing. It did not wind up that way, but it was not because we did not try. So we will go ahead. And if the administration decides at a later date that they wish to come in and testify on this, we will probably have another hearing and give them their day to be heard here.

Our witnesses today are: Dr. Frank Mirer, Director of Health and Safety, United Auto Workers; David Doniger, senior attorney, Natural Resources Defense Council; Harold Bruff, professor of law, University of Texas at Austin; Katherine Meyer, of counsel, Harmon, Curran, Gallagher and Spielberg here in Washington. So if you all would come to the table, we would appreciate it.

Dr. Mirer, I had you first on my list here. If you will lead off, we would appreciate it.

TESTIMONY OF DR. FRANK MIRER,1 DIRECTOR OF HEALTH AND SAFETY, UNITED AUTO WORKERS

Dr. MIRER. Thank you very much, Mr. Chairman. I have submitted my full statement to the Committee.

The prepared statement of Dr. Mirer appears on page 94.

Chairman GLENN. Good. I would say without objection from anyone else here, we would include your more lengthy statements in the record. If you choose to give a summary of them, that is fine, but the longer statements will be included in the record without objection.

Dr. MIRER. OK. I would like to summarize the written testimony, which I have provided. I am Dr. Franklin E. Mirer. I am Director of the Health and Safety Department of the UAW. I am a toxicologist and certified industrial hygienist, and I am a veteran of 16 years of the regulatory process at OSHA through several administrations. My responsibilities including coordinating the UAW's efforts in rulemaking at OSHA and also those aspects of EPA which impact on the occupational environment.

My remarks are principally about OSHA today. My principal observation is that safety and health standard setting at OSHA has virtually come to a stop. The machinery turns from time to time, but product seldom emerges, generally as a result of a court order. It is also clear that the Office of Management and Budget is putting sand in the gears both by direct intervention and by pushing its political agenda and current concerns upstream in the rulemaking process. OMB additionally has announced the intention in writing to take an even more activist role in standard setting, imposing its own scientific analyses in place of those adopted by the public health agencies and its own criteria for protection in place of those imposed by the enabling statutes for those agencies.

My comments today are principally about the OMB role. Frankly, I do not know that much about the Council for Competitiveness. These general concerns for the role of OMB in OSHA rulemaking are illustrated by OSHA's recent lack of productivity, and its particular activities on standards for formaldehyde and energy lockout. The OMB general strategy is laid out in several articles in the Regulatory Program of the United States, and the Budget. Those are referenced in my testimony.

As a result of all of this, OSHA these days is not effectively moving forward on standards. It is not even looking over its shoulder at industry's concerns. It is watching out for OMB. The need to increase the pace of safety and health standard setting at OSHA is generally recognized by the public health community, including many observers associated with industry, and if you believe the regulatory calendar of OSHA as a heartfelt document, it is recognized by the administration itself. And a brief account of the problems with OSHA rulemaking is found in a GAO report of August of 1990 entitled "Options for Improving Safety and Health in the Workplace."

Now let us look at a couple of specific examples. The first, the OSHA lockout-tagout standard, illustrates OMB's specific intervention to change rules in response to industry demands. As you may know, recently OMB has criticized the public health agencies for too much concern over chemicals which cause cancer, and for ignoring other threats such as safety hazards which could lead to traumatic injury. Well, what happened with the lockout standard illustrates OMB's interference in safety standards, as well its hostility toward those standards. Energy lockout is a shorthand term for a comprehensive set of protections from machine movement or

other hazardous energy when workers are servicing, repairing, or installing machinery and equipment.

Lockout program failures were responsible for the deaths of 92 UAW members on the job since 1973. We have directly investigated the majority of those. We estimate an additional 1 million lessthan-fatal injuries. It is a recognized industry practice, at least in part. There was an industry consensus standard issued in 1982. The UAW first petitioned OSHA for a lockout standard in 1979. Not much happened for nearly a decade, but when OSHA did move a little bit forward, OMB was highly critical of OSHA's attempts to write a rule converting the industry consensus standard into a regulation. That was in May 1987. The proposal was finally issued as a result of an oversight hearing by the Senate Labor Committee in April 1988.

Hearings were held. The rulemaking record was certified and closed in May of 1989. In June of 1989, OSHA forwarded its final standard to ŎMB. While the OSHA standard was pending before OMB, certain industry representatives were given copies of OSHA's final rule. The union representatives were not. With access to OSHA's draft final standard, on August 3, 1989, Newport News Shipbuilding and United Technologies, neither of which bothered to come to the rulemaking hearing, submitted alleged new data and arguments to OSHA and OMB highly critical of OSHA's draft final rule. Shortly thereafter, OSHA forwarded a revision of the standard to OMB which excluded from the lockout-tagout requirements of the standard so-called "minor servicing and maintenance activities". This revision responded directly to the ex parte industry comments, and I should point out these so-called minor activities were responsible for the deaths of 18 UAW members.

I have attached to the testimony the text of the standard so you can see the way in which the revision was written in at the last gasp. Partly because of this change, the UAW was forced to challenge the standard in court. I am sad to say that our challenge was unsuccessful. We were unable to overcome the court's deference to the agency's presumption of expertise, a presumption which OMB does not share, and partly because the full record of the special access was not available.

Another example of this process is the OSHA formaldehyde standard. This was another 10, 12 year legal struggle beginning with a UAW petition for a new standard for this cancer-causing chemical in 1981. OSHA denied the petition in 1982. We had the typical 5 year, 7 year legal battle. The role of OMB during that period was obscure. The role emerged clearly when the fuel standard was published. Acting under its claim of authority under the Paperwork Reduction Act, OMB blocked the labeling and related chemical hazard communication requirements of the standard, and that stay on information requirements remains in effect today. After the D.C. Court of Appeals ruled in our favor, remanding the standard to OSHA because it was not protective enough in 1989, the UAW sat down with the industry to see if we could negotiate a settlement of a lawsuit. After some very constructive discussions we were able to arrive at a joint recommendation to OSHA on what would, within the bounds of the prior record, resolve the outstanding legal issues.

OSHA placed those in the record in the docket in July of 1990, revised the standard, forwarded it to OMB three months later. It sat at OMB for three months, at which point OMB barred OSHA from publishing the revised formaldehyde standard for public comment. OMB said it disagreed with OSHA's analysis of the health effects, its legal analysis. So there the revision sat with no visible opposition, labor support, industry support, agency support, and a pending court order until finally in June of 1991, OMB relented and permitted the rule to be published. During this last comment period, the only comments were some rather obscure issues regarding liquid mixtures containing formaldehyde.

The revised rule is now hanging around at OSHA waiting for its next trip back to OMB. I guess we will see the influence of this oversight hearing on how long it stays at OMB.

More generally, OSHA rulemaking is slowed by excessive time spent on highly suspect economic analyses. Critically important new standards are stacked up at OSHA in large numbers: protection against blood-borne infectious disease at work (that's hepatitis B and AIDS virus); Ergonomics programs; occupational medical programs; measurement of chemical exposure; cadmium. The need for these rules is widely accepted. The format and general outline for the eventual regulations is also well understood. Yet OSHA's efforts are stalled. And the major reason for this, one of the major reasons, is the excessive time collecting economic information to meet OMB's requirements.

And making the task more difficult is OMB's limitation on data collection. Just for an example from my experience, OSHA's contractors on economic impact are limited to nine phone calls on a specific question, because otherwise it is a survey, for which they have to get permission from OMB to collect the information, which OMB later demands or criticizes them for not having when the analysis comes there. My testimony has more extensive discussion of the impact and the inapplicability of these so-called economic analyses. Frankly, when we go to OSHA hearing over a rule, my staff and I spend more time on the economics than we do on the health effects because we have the experience with what actually goes on in the plants. We have the experience with what it will actually take to resolve a problem. OSHA's economists do not, and I assure you that OMB does not have that either.

Recent statements by OMB are even more ominous. OMB published a paper on methods of public health risk assessment in the Regulatory Program in the United States, basically rejecting the entire scientific basis of risk assessment for carcinogens. OMB said that this was their analytic position by which they would review agency attempts to control carcinogens. And they published another document in the 1992 Budget which basically requires the regulatory agencies to do a complete full-blown cost benefit analysis of every proposed regulation. In fact, this is required before they can even collect the data to do such a cost benefit analysis, were it a valid enterprise, and were it required by the statute.

So, in conclusion, no one who looks at OSHA's dismal rulemaking record over the past decade can reasonably argue that the agency is overly zealous in the protection of the American worker, or has taken regulatory action that poses any economic threat to