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E-M:/ UAW International Union Opposes Sen. Carl Levin's Amended Reg-Relax Bill, S. 981

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UAW International Union Opposes Sen. Carl Levin's Amended Reg-Relax Bill, S. 981


X-Sender: uawhs@earthlink.net
Date: Thu, 26 Feb 1998 17:45:02 -0500
To: Interested.Parties@norway.it.earthlink.net
From: Frank Mirer <uawhs@earthlink.net>
Subject: S.981:  Regulatory Improvement Act of 1988
Return-Path: uawhs@earthlink.net

Embedded in this message is the full text of testimony delivered on behalf
of the UAW in opposition to the amended form of S. 981.  Oral testimony was
limited to 5 minutes.  Please excuse multiple cross postings.


Statement Of The

International Union, United Automobile,
 Aerospace, and Agricultural Implement
      Workers of America (UAW)

On The Subject Of

Regulatory Improvement Act of 1998 

Before The

Committee on Governmental Affairs
United States Senate

Washington, DC
February 24, 1998

I am Dr. Franklin E. Mirer, Director of the Health and Safety Department of
the UAW.  I am a toxicologist and certified industrial hygienist.  I speak
today on behalf of nearly 1.3 million active and retired UAW members, and
their families. The UAW strongly opposes the proposed “Regulatory
Improvement Act of 1998” (S 981).  We believe this legislation would
undermine OSHA’s ability to protect working men and women against workplace
health and safety hazards.

Over the years, the UAW has led labor’s rulemaking efforts on formaldehyde,
methylene chloride and energy lockout.  The UAW participated directly in
OSHA rulemaking regarding lead, access to exposure and medical records,
hazard communication, benzene, the OSHA cancer policy, the PEL update
(Permissible Exposure Limit), blood borne infectious disease, confined
space entry and asbestos, among others.  I have personally been involved in
most of these OSHA rulemaking over the past 22 years.  I have also been a
peer reviewer:  of NIOSH grants, journal articles, National Toxicology
Program reports and the NTP Report on Carcinogens.  I have been involved
with various reviews public health rulemaking, most prominently as a member
of National Academy of Sciences committees on risk assessment.

My colleagues in the UAW and other unions have heard our member’s health
complaints, taken the air samples, negotiated the health studies,
petitioned for new protections, filed lawsuits to compel rulemaking,
testified at hearings, filed lawsuits when standards left workers at risk,
and settled that litigation after winning at the Appeals Court.  Most
important, we have implemented the new standards and seen dramatic
improvements.  Usually health and safety improvements come with increased
efficiency and quality of products.  No OSHA standard has caused the
economic disruption claimed by the industries that have created the hazards.

For example, the OSHA energy lockout standard addressed hazards in
maintenance operations which cause 25% of fatalities among UAW members.
This is a fundamental safety procedure known to anyone familiar with
manufacturing industry. Since the standard went into effect, fatalities
from this cause have been reduced to zero in the auto industry.
Implementation has improved efficiency by involving workers in devising
procedures that speed maintenance and improve up time.  Similarly, the OSHA
lead standard transformed the battery industry, while the price of lead
went down, not up as predicted.

The UAW’s real-life experience with OSHA standard setting is simple:  OSHA
standard setting is stalled.  The standard setting process is failing to
protect workers.  Recent rules on energy lockout, formaldehyde, and
methylene chloride, championed by the UAW, were completed only after decade
long campaigns, including lawsuits to compel action and to toughen
standards.    The UAW petitioned for the energy lockout standard in 1979,
after an industry consensus standard had been completed.  A proposed
standard wasn’t issued until 1988, a final standard for general industry
not until 1989.  At the time, OSHA promised to extend this protection to
workers in construction.  But as of today, the agency has been unable to
extend this protection to construction workers, who remain at increased

The need to increase the pace of safety and health standard setting at OSHA
is generally recognized by those in the public health community, including
many observers associated with industry.  There is a long list of rules
already promised but not delivered by OSHA.

	-- OSHA has been unable to  issue a proposal for a long-promised
requirement that employers establish basic safety and health programs.
Such a program requirement would mirror several state regulations which go
back to the 1970’s and ‘80’s.  OSHA placed the safety and health program
rule on its regulatory agenda in 1993.  It has widespread, long-standing
support from industry.  It is stalled.

	-- A standard for ergonomics programs would address the largest single
cause of pain and disability among American workers today.  Musculoskeletal
disorders are over half of all disabling injuries in all industry, and
nearly 2/3 of all injuries in automobile plants.  In August 1990, Secretary
of Labor Elisabeth Dole announced that OSHA would develop an standard for
Ergonomics programs.  It is stalled.

	-- A standard for airborne tuberculosis is needed to protect workers and
patients.  A proposal which would codify CDC’s 1994 voluntary guidelines
has been issued years after this grave threat to health care workers was
identified, but an enforceable requirement that health care employers
protect their workers is still years away.

	-- The PEL Update project, originally started in the Reagan
Administration, would adopt consensus recommendations to lower chemical
exposure limits for about 400 of the most common industrial chemicals to
which workers are exposed.  OSHA’s current limits for these materials were
established in 1968 and never revised.  

	-- The standard for silica hasn’t been addressed since an Advance Notice
of Proposed Rulemaking issued in the Ford Administration.  According to
OSHA, MSHA and NIOSH the current standard permits more than 250 workers a
year to die from silicosis and leaves more than 100,000 workers at high
risk of developing lung disease.

The limit on  progress of new standards through OSHA is the time and
resources spent on economic analyses.  For any regulatory action, OSHA
already engages in an extensive effort at “costing out” these rules, even
when cost is not the source of significant opposition.  Limited staff and
absence of industry data makes regulatory analysis the main barrier even to
issuing a proposal.  The analysis has to  be done even before the proposal
is issued, and becomes a  straight jacket for changes in the rule in
response to public comment.  The burden has shifted to the Agency to prove
that a regulation to protect human life and health is not only feasible,
but cheap.  Industry and its allies may stall action by nit-picking the
methods and economic data without even having to argue the significance of
the outcome.  As OSHA and proponents of a rule get more efficient about
collecting data and doing such analysis, opponents now want to raise the
target by adding net benefits analysis, regulatory flexibility analysis,
comparative risk analysis, and substitution risk analysis.

The UAW’s most recent effort at standard setting concerns metalworking
fluids used in machining plants.  About a million American workers are
exposed to these materials, which pose respiratory, cancer and skin
hazards.  Our efforts actually started with research in the early l980’s.
We petitioned OSHA for a new standards for metalworking fluids in November
1993.  After 4 years, OSHA put together a standards advisory committee of
labor, management, health professionals and state agencies, on which I
serve. If S. 98l were to become law, even if the Metalworking Fluids
Advisory Committee members were to reach complete agreement about every
issue in the standard, OSHA would still have to do a formal risk
assessment, cost benefit analysis, substitution risk analysis, comparative
risk analysis, put it out for peer review and go through years of
additional delay.  Meanwhile, those workers who are not union members and
could not negotiate protections would still suffer dangerous exposures.

The UAW’s objections to S.981 are practical and simple:

-- This legislation will make the process slower and more complicated, and
thereby further delay standards, deny workers protection and leave them at

-- The legislation tilts the playing field further in favor of those who
wish to block new protections and roll back those protections we have now.

-- There is nothing in this proposal which facilitates getting new

In sum, it will make it harder to protect workers from serious safety and
health hazards.  It will result in preventable injuries, illnesses and
deaths on the job.

This bill, like all recent regulatory change or risk assessment
legislation, seems based on the assumption that public health agencies
order overly-protective limits on exposure too fast and too frequently
based on extreme interpretations of science.  Real experience is just the

1.	The so-called “Peer Review” provisions close the standard setting
process, open the way for industry special pleading, and delay action for
no benefit.

Under present OSHA procedures, proposed standards must be presented in a
public hearing.  OSHA must present evidence supporting the proposed
standard, including witnesses and documents explaining the health risks,
control measures, cost analyses, and every detail of the rule.  Any
participant in the rulemaking can ask questions of OSHA and its witnesses,
as well as present their own evidence and comments. In turn, participants
can be questioned by OSHA and each other.  This round robin process is
open, on the record, and exhaustive. Scientific experts, unions, employers,
government officials take their turn.  Workers who are exposed to the
hazards also testify.  Workers, who know the most about exposures and how
to control them, would be shut out of the so-called peer review process.
Finally, OSHA must explain and defend the final rule, addressing all the
comments and criticisms.

The additional process required by this legislation is closed.  Before the
public gets to participate directly, the agency is required to appoint a
“peer review” panel of experts.  The panels are to be “broadly
representative,” which means they would likely include representatives of
the industry interests which oppose change.  The “peer review” panel may be
required to sign confidentiality agreements.  Thus, the legislation allows
decisions on public health protection to  be made -- or unmade -- based on
secret information.  The peer review groups  are exempt from the Advisory
Committee Act, which requires balance and open meetings.  Thus, the basis
for a standard is subjected to closed door review, possibly off the record
and undocumented, before the standard goes public.

Obviously, this extra peer review step mandated by the legislation takes
extra time and extra OSHA and stockholder resources which could be better
spent addressing additional hazards.  Quite frankly, this extra step is
just one more foothold for interests who simply want no change and whose
only goal is to stop any new regulation.

After peer review, the agency would hold a public hearing and take new
evidence.  But this might change the risk assessment, change the cost
assessment and change the rule.  

2.	The lookback provisions impose a one-sided approach which opens the door
to rolling back existing protections but does nothing to improve
protections or address new hazards.

Agencies are required to review the existing protections they administer.
The agency must specify those which will be amended or deleted.  An
additional lookback procedure is imposed for small business, which often
acts as a stalking horse for major corporations.  Agencies are directed to
change their standards to be more cost efficient, increase net benefits, or
reduce economic impact on small business.  These reviews and rollbacks are
placed on detailed time tables.

You have heard that it takes OSHA over a decade to set a new standard.  The
legislation prescribes 5 years to roll one  back.

There is nothing in this legislation about amending existing standards or
establishing new ones to be more protective, or address additional hazards.
 There is no timetable for responding to petitions for better protection.
The only criteria required are economic.  The only direction specified is

We anticipate that this type of mandated regulatory program would assume
center stage at OSHA and other agencies, and crowd out the work  needed for
new hazards.

3.	The detailed specifications for risk assessment and cost benefit
analysis are inappropriate, wasteful and productive of litigation.

The detailed specifications for analysis are designed for exposure to
cancer causing chemicals and perhaps some other chemical hazards.  Each
element may be the basis to file a lawsuit and block a protection.  The
bill requires comparative risk analysis and substitution risk analysis,
which multiplies the amount of paperwork to be done.

The analytical framework is much less appropriate for safety (acute injury
prevention) standards, difficult to implement for program standards such as
a requirement for safety and health programs, and completely inappropriate
for provisions implementing workers’ rights.  For example, OSHA requires
employers to give chemical  exposure monitoring results.  This is part of
the law.  

The rigid quantitative framework excludes exactly the kind of experiential
knowledge of workers and front line management which is usually called
“common sense.”

This Committee should also recognize that cost calculations are much less
reliable than health risk assessments.  These analyses usually wildly
overstate the expense of complying with OSHA’s standards.  This is because
OSHA and other agencies generally must depend on industry generated cost of
compliance data.  Industry usually stonewalls on such simple issues as who
is exposed to chemicals at what levels, what specific engineering changes
really cost, and what process alternatives are available.

As a practical matter, these analyses are feasible for chemical exposure
standards.  After the long delay of meeting the specifications in this
legislation, the standards would emerge intact.  The protections most
damaged would be safety standards such as for forklift trucks, and program

I must add that the cost benefit analysis and net benefit analysis required
to be performed by this legislation are not required by the OSHA law, and
are even prohibited by law as a justification for raising the levels of
permitted exposure and increasing the injuries or diseases expected.

Further, the notion that labor unions, representing affected workers, would
impose needless costs on employers is not credible in this economic
climate.  Workers are worried by threats of plant closure, of work leaving
to low regulation havens like Mexico, and are constantly barraged with
arguments for increased productivity and efficiency.  Costs are a concern.
Efficiency and quality are concerns.  But health and safety comes first,
and dire economic predictions are rarely if ever borne out.  No OSHA
standard has caused the economic disruption claimed by the industries that
have created the hazards.

4.	This legislation imposes burdensome requirements on even the most
minimal, practical and routine regulations to protect employees.

Virtually any OSHA standard would be a “major rule” subject to the detailed
analytical requirements of this standard.  OSHA attempts to protect
employees of 6 million employers.  Divide this into the $100 million dollar
level for a “major rule”  and you find that any standard which costs the
average employer $17 a year is a “major rule.” This is less than the cost
of lighting a single exit sign with a 50 watt bulb.  You can’t sweep the
floor for $17 a year.  The simplest actions will be delayed by complex
analysis and peer review if they apply to a broad range of employers.  If
this were not enough, OMB is empowered to reach down below $17 to designate
additional standards for review, and the Small Business Administration can
reach back to any existing standard by claiming a “significant economic
impact on a substantial number of small entities.”


No one who looks at OSHA’s dismal rulemaking record over the past decade
can reasonably argue that the agency has been too zealous in the protection
of the American worker, or has taken regulatory action that poses any
economic threat to American industry or our economy.  To the contrary, OSHA
has been handcuffed, even when confronted with serious hazards to the
safety and health of our members and workers in general.  Recognized
threats to health and safety are being ignored, and American workers suffer
death, injury, illness and disability at a shamefully high rate as a
result.  The absence of any comprehensive approach to addressing health and
safety threats in the workplace places our nation’s economic health in
jeopardy—workers who are injured or made ill or killed on the job are a
drain on our economy; work sites that are unsafe are inefficient.

The provisions in this legislation are directly imposed on public health
agencies, but the burden is borne by the working people exposed to the
hazards and suffering the consequences.  Our members can’t understand why
it takes 10 or 15 or 20 years to change a standard after science or common
sense shows it is not protective.  That’s a decade when government is
telling our members something is safe when it’s not safe.  Now, our members
are asking why legislation is being considered to make it even more
difficult to get new protections against hazards that put their lives,
limbs and health in danger.

For all of these reasons, the UAW strongly opposes the proposed “Regulatory
Improvement Act of 1998” (S. 981).  We urge the Members of this Committee
and the entire Senate to reject this legislation.



 OSHA Methylene Chloride Standard
  Time Line

1946	ACGIH adopts 500 ppm limit as national consensus standard.

1971	OSHA adopts 500 ppm limit as a 6(a) standard.

1976	NIOSH recommends 75 ppm limit and medical surveillance in a criteria

2/85	NTP bioassay shows methylene chloride to be a cancer causing agent.

7/85	UAW petitions for an OSHA standard.

4/86	NIOSH publishes Current Intelligence Bulletin classifying methylene
           chloride as a potential occupational carcinogen and recommending
           control of exposures to the lowest feasible limit.

11/86	OSHA issues Advanced Notice of Proposal Rulemaking.

01/91	 Draft proposed standard sent to OMB.

11/91	Proposed standard, risk assessment and regulatory inpact analysis
           published in Federal Register.  OSHA proposes to lower exposure
           from 500 ppm to 25 ppm.

07/92	Advisory Committee on Construction Safety and Health (ACOSH) holds
           public meeting to review the proposed standard and forwards
           recommendations on the standard's application to the construction

08/92  Supplemental notice is published on issues raised by ACOSH.

09/92  Public hearing starts.

10/92  Public hearing ends.

03/93  Post-hearing comment period closes.

03/94  Record reopened for submission of and comments on additional

04/94  Record closes.

09/94  Draft final standard submitted to OMB.

06/95  Draft final standard withdrawn after OMB criticism.

10/95  Record reopened for reconsideration of industry risk assessment and
           comments; risk assessment revised to incorporate industry approach.

06/96  Revised draft final standard submitted to OMB.

09/96  Industry opponents conduct letter writing campaign to Congress urging
           members to ask OSHA to withdraw the proposed rule and for OMB to
           disapprove the rule.

01/97  Final standard published.  Standard set at 25 ppm.  Small employers
           given 2-3 years to come into compliance through engineering
           Other employers given 1 year compliance deadline.

01/97  GAO issues report to the Congress stating that OSHA has complied with
           all the requirements of the Regulatory Flexibility Act, the
           Mandates Reform Act, the Administrative Procedures Act, the
           Reduction Act, Executive Order 12866, and Executive Order 12612.

01/97  UAW and Industry parties file Petitions for Review in the D.C. Court
of 	Appeals

03/97  H.J. Resolution 67 disapproving OSHA's rule on methylene chloride is

04/97  S.J. Resolution 25 disapproving OSHA's rule on methylene chloride is

12/97  UAW, Industry and OSHA agree in principle to settlement modifying the
           standard and ending litigation.

01/98  Parties inform court of impending settlement.



        Franklin E. Mirer, PhD, CIH
        UAW Health and Safety Department
        8000 East Jefferson Ave
        Detroit, MI 48214

        ph  313-926-5563
        fx  313-824-4473

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