Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, when I looked at the issue of diacetyl in manufacturing during the debate in committee, the answer seemed very clear to me at the time: proper ventilation. Even though…
Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, when I looked at the issue of diacetyl in manufacturing during the debate in committee, the answer seemed very clear to me at the time: proper ventilation. Even though it is unclear what is affecting manufacturing workers, all the experts agree that engineering controls, such as ventilation, reduce worker exposure.
I take very seriously lung illness. For nearly 10 years, I served on the State board of the South Carolina Lung Association. In the South Carolina State Senate, I introduced innovative legislation promoting clean air.
Fundamentally, the science does not exist to state a link between diacetyl
and impaired lung function. Indeed, last year, the National Institute for Occupational Safety and Health, NIOSH, noted, ``At this time, insufficient data exists on which to base workplace exposure standards or recommended exposure limits for butter flavorings.''
Unfortunately, this bill goes beyond the issue of what is known. The underlying bill requires the Occupational Safety and Health Administration, OSHA, to set a standard based on documents that OSHA informs us cannot guide rulemaking. These documents provide guidelines of how to solve the problem at issue but are not the foundation for a rule.
More research is currently under way to determine a connection between diacetyl and this respiratory condition. I fully support that research moving forward. In fact, the underlying measure contains an amendment I offered during the committee consideration of the bill to require NIOSH to study similar flavorings to determine possible exposure hazards with flavorings similar to diacetyl. Until there is conclusive evidence, it remains to be seen if diacetyl alone is to blame or whether the chemical, in combination with the other flavorings, places workers at risk.
On June 18, Assistant Secretary of Labor for Occupational Safety and Health, Edwin Foulke, a distinguished attorney from Greenville, South Carolina, of the highest integrity, reiterated this in a letter to Congress, in which he stated, ``Focusing on diacetyl ignores the possibility that other flavoring components, many of which are irritants and airway-reactive substances, are playing a role in the development of disease. Given the wide variety of ways and forms in which diacetyl and other flavoring components are used in the food manufacturing industry, a narrow focus on diacetyl would likely result in the selection of risk-management strategies that may not adequately protect employees.''
This is a critical point. Until we know the true cause of this lung impairment, I do not see how we can effectively legislate on it. Further, major manufacturers, using this flavoring have already announced they will no longer be using diacetyl.
The lack of scientific foundation is, unfortunately, not the only problem with the bill before us. There are numerous flaws outlined by the OSHA administrator's letter. Further, the President has announced strong opposition to the bill, largely because it is flawed. Undermining the rulemaking process, as this bill does, would almost certainly exclude input from key stakeholders that often proves imperative for a balanced rulemaking process.
Because this bill fails to allow time for appropriate scientific research and because it undermines the proven regulatory framework, I fear it will not do enough to protect workers.
Mr. Chairman, my amendment that was made in order would resolve much of this problem.
Department of Labor,
Washington, DC, June 19, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor, House of
Representatives, Washington, DC.
Dear Chairman Miller: I am writing to express my strong
concerns with legislation (H.R. 2693) that would require the
promulgation of an interim final standard (IFR) regulating
employee exposure to diacetyl in the popcorn and flavor
manufacturing industries and mandate that the Occupational
Safety and Health Administration (OSHA) issue a final rule
covering all workplaces that use diacetyl.
I share your goal of protecting workers from the risk of
obstructive lung disease. As outlined below OSHA is in the
process of taking important steps to strengthen worker
protections in this area. However, after careful review of
this legislation, we have concluded that the regulatory
approach mandated by H.R. 2693 will not afford the best level
of protection for workers. Equally important, the process the
bill would require may result in missed opportunities to
provide needed worker safety. Instead, I urge you to allow
OSHA to thoroughly evaluate all available science concerning
the effects of exposures to food flavorings, feasible
abatements and related issues.
Several considerations lead us to the conclusion that the
approach mandated by H.R. 2693 would not best protect
workers:
1. The expanded scope of the final rule and the lack of
knowledge about the industries that use diacetyl will lead to
superficial analysis that may fail to provide needed worker
protection.
H.R. 2693 would require OSHA to expand the scope of the
final rule to include all establishments where there is
potential for exposure to diacetyl. Unfortunately, little is
known about industries--other than the microwave popcorn
manufacturing and food flavoring manufacturing industries--
that use diacetyl and diacetyl-containing flavorings. OSHA
would need to identify those companies that use diacetyl then
conduct site visits to gather needed data to (1) identify
processes where exposures occur, (2) develop control
strategies for each process, and (3) identify employers who
have implemented control strategies to determine if those
control strategies are effective. Although OSHA has been
obtaining this information for microwave popcorn and food
flavoring manufacturing establishments, to date little
information is available on the many other industry sectors
that would potentially be covered by the final role required
by the bill. OSHA believes that two years is too short a
period of time to develop the information base and analysis
necessary to adequately support the proposed and final role,
and to afford the public adequate time to comment on OSHA's
proposal. The Agency believes that robust public input is
essential to achieving a final rule that provides protection
for employees while addressing potential impacts on all
affected industries.
2. Focusing solely on a Permissible Exposure Limit (PEL)
for diacetyl may ignore other components that are playing an
important role in the development of disease.
H.R 2693 requires OSHA to develop a PEL for diacetyl that
would apply to all facilities where diacetyl is processed or
used. Research is ongoing by groups such as the National
Institute for Occupational Safety and Health (NIOSH), the
National Jewish Medical Center, the National Institute for
Environmental Health Studies and California Department of
Industrial Relations, Division of Occupational Safety and
Health (Cal OSHA) to better determine the role that exposures
to diacetyl and other chemicals may play in the development
of bronchiolitis obliterans.
By focusing solely on diacetyl, H.R 2693 raises two major
concerns:
a. Focusing on diacetyl ignores the possibility that other
flavoring components--many of which are irritants and airway-
reactive substances--are playing a role in the development of
disease. Given the wide variety of ways and forms (e.g.,
liquids or powders) in which diacetyl and other flavoring
components are used in the food manufacturing industry, a
narrow focus on diacetyl would likely result in the selection
of risk management strategies that may not adequately protect
employees. These might include substitution of diacetyl with
other chemicals that may be as dangerous under similar
circumstances as diacetyl.
b. NIOSH has stated that ``at this time, insufficent data
exist on which to base workplace exposure standards or
recommended exposure limits for butter flavorings.'' Given
the state of the data currently available, OSHA would only be
able to develop an imprecise PEL for diacetyl which would
have a considerable amount of uncertainty associated with
respect to the degree of protection afforded.
3. As drafted the bill would require the interim final rule
to impose engineering requirements based on NIOSH
recommendations that lack the clarity and specificity
necessary to form the basis of a new health standard.
H.R. 2693 would direct OSHA to issue an interim rule at
least as stringent as the 2004 NIOSH Hazard Alert. The NIOSH
recommendations serve as good general recommendations, but do
not provide specific performance criteria that would be
necessary to develop an unambiguous and enforceable interim
rule. The NIOSH Alert refers to the 2001 ACGIH Ventilation
Manual, which provides some general objective design
criteria, but mixing and blending processes in flavoring
establishments vary greatly. For example, they can range from
a 10-gallon batch operation up to several hundred pounds of
batch mixing. Each of these operations may use similar
control strategies but would require different engineering
design parameters to achieve the same level of effectiveness.
Therefore, the NIOSH Hazard Alert is not helpful to specify
required minimum operating parameters for engineering
controls because these minimum parameters will not provide
equal protection to all employees in affected establishments.
Furthermore, there is simply not enough information available
at this point on flavoring processes and current exposure
control practices to develop a specification-oriented
standard.
OSHA traditionally has used PELs instead of specification-
oriented standards to protect workers in this type of
situation, because a PEL will set a precise, measurable
standard to protect workers. However, as previously
mentioned, currently available data do not support setting a
PEL for diacetyl. Thus, OSHA would be forced by H.R. 2693 to
issue a PEL based on imprecise information and an IFR based
on a NIOSH Hazard Alert that does not provide specific
performance criteria.
Additionally, the Department of Labor is very concerned
that the IFR that is mandated by this legislation will not be
open for comment by stakeholders, or reviewed in accordance
with the requirements of the Small Business Regulatory
Enforcement Fairness Act (SBREFA), the Administrative
Procedures Act, and the rulemaking requirements of the
Occupational Safety and Health Act These statutes ensure
thorough consideration and transparency in rulemaking. We do
not believe these regulatory requirements
should be waived except in the most exceptional situations.
Thorough vetting is particularly critical when the medical
and scientific studies do not provide unequivocal
conclusions.
The Department of Labor is committed to protecting
employees from obstructive lung diseases. The Department
recently announced that OSHA win focus on health hazards of
microwave popcorn butter flavorings containing diacetyl
through a new National Emphasis Program (NEP). The NEP will
direct inspections to the facilities where workers may be at
the greatest risk of exposure to this hazard. Implementation
of this NEP would allow OSHA to inspect every such facility
under Federal jurisdiction by the end of this year. This will
be followed by a second NEP that focuses on establishments
manufacturing food flavorings containing diacetyl.
In addition to the NEP, OSHA is also preparing a Safety and
Health Information Bulletin (SHIB) to better inform and
instruct employers on how to protect employees from
obstructive lung disease caused or exacerbated by food
flavorings used in the microwave popcorn manufacturing
industry. The SHIB will provide guidance to alert employers
and workers to the potential hazards associated with butter
flavorings containing diacetyl and will provide
recommendations on how to control these hazards. OSHA is also
developing a hazard communication guidance document to ensure
that material safety data sheets and labels properly convey
hazard information on diacetyl and diacetyl-containing food
flavorings. Given that NIOSH has stated that insufficient
data exist on which to base workplace exposure standards or
recommended exposure limits for butter flavorings the
approach we are taking is the quickest and most effective
means of providing protection to workers in the popcorn and
flavor manufacturing industries.
Because of the concerns I have outlined, the Department of
Labor is opposed to H.R 2693. We have concluded that the
approach proposed by H.R. 2693 will not afford the best level
of protection for workers. By not providing sufficient time
to do a proper rulemakin OSHA may unintentionally overlook
opportunities to provide needed worker safety and, at the
same timel require expensive process isolation, and
ventilation and other control strategies that may be
ineffective. Instead, I urge you to allow OSHA to thoroughly
evaluate all available science concerning the effects of
exposures to food flavorings, feasibie abatements, and
related issues.
Sincerely,
Edwin G. Foulke, Jr.,
Assistant Secretary for
Occupational Safety and Health.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I include for the Record letters in opposition from the American Bakers Association, dated September 25, 2007; the OSHA Fairness Coalition, September 25, 2007; and the Office of Management and Budget, dated September 25, 2007.
American Bakers Association,
Washington, DC, September 25, 2007.
Hon. Howard McKeon,
House of Representatives,
Washington, DC.
Dear Mr. McKeon: On behalf of the American Bakers
Association (ABA), I am writing to express our opposition to
H.R. 2693, ``the Popcorn Workers Lung Disease Prevention
Act,'' which the House of Representatives is expected to
consider this week. Passage of H.R. 2693 would significantly
short circuit the appropriate regulatory process by mandating
that the Occupational Safety and Health Administration (OSHA)
implement a regulation, including a Permissible Exposure
Limit (PEL), applicable to all sectors of the food industry,
and based on limited scientific data. For over 100 years, the
ABA has represented the interests of the wholesale baking
industry and its suppliers--companies that work together to
provide over 80 percent of the wholesome and nutritious
bakery products purchased by American consumers.
The American Bakers Association prides itself on our long
history of assisting baking companies to stay ahead of the
curve on safety and health in the workplace. Our Safety
Committee provides tremendous leadership on safety and health
policy issues. We are committed to keeping our workers safe
and support science-based standards and regulations. The ABA
is aware of recent data from the National Institute for
Occupational Safety and Health (NIOSH) regarding the use of
diacetyl in popcorn manufacturing and the flavor
manufacturing industry. We also understand the severity of
the health effects that have been demonstrated in a limited
number of cases. However, we strongly believe that the recent
NIOSH data does not accurately reflect the use of diacetyl in
other sectors of the food industry, such as baking.
Differences exist in the food processing industry, the
concentrations of diacetyl used, and the existing controls in
place.
Mandating specific requirements that OSHA must include in a
diacetyl standard sets a precedent that should be avoided.
Congress's role as set forth in the OSH Act of 1970 is to
``assure so far as possible every working man and woman in
the Nation safe and healthful working conditions and to
preserve our human resources.'' However, it is the role of
the Department of Labor to use its expertise for implementing
regulations. For Congress to specify the applicable
requirements of a ``final standard'' would bypass
inappropriately the mechanisms and tests established under
the OSH Act. Expedited regulation, even if directed by
Congress, would rest on very limited scientific evidence and
would represent rushed and inappropriate legislative and
Agency action.
Further H.R. 2693 does not address the carefully developed
procedures for rulemaking that Congress and the courts have
put in place under the Administrative Procedures Act (APA),
including provisions designed to protect small businesses.
Finally, on September 24, 2007 OSHA announced its intent to
move forward with a rulemaking
on diacetyl. This rulemaking process should be allowed to
move forward as it includes the appropriate procedural
safeguards.
ABA respectfully urges you to oppose this legislation and
allow the regulatory procedures designed to protect the
interests of small businesses to guide OSHA in developing a
standard.
Sincerely,
Robb MacKie,
President and CEO.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, we are considering this bill under unfortunate circumstances. A number of workers have become ill, and it is not entirely clear why. We suspect this particular food flavoring diacetyl may be involved, so we all support a thorough investigation into this substance and how exposure to it may impact workers.
Like my friends on the other side of the aisle, I wish there was an easy answer. If only we knew what had made these workers ill, we could immediately eliminate the risks. If only we knew for sure that diacetyl and manufacturing alone caused lung obstruction, then Federal agencies could go through the appropriate regulatory process to establish exposure limitations and take the necessary steps to protect workers.
Unfortunately, we do not have enough information at this point in time to take such action. Research is underway, and it is my hope that the research continues quickly so we can get to the bottom of these questions about how diacetyl impacts manufacturing workers.
Until that research is available and until we have a scientific basis for regulation, in my mind we simply cannot move forward. There is a very real danger that by acting too quickly, we could inadvertently push manufacturers to begin using substitute flavorings. There is a possibility that these substitute flavorings could also put workers at risk; thus, a hurried regulation may provide a false sense of security while manufacturing workers remain vulnerable.
Again, I understand the frustration about a lack of clarity on the administration's intent in this area. Until the recent announcement by the Department of Labor that it intends to undertake a rulemaking process for this flavoring, we had not received any clear indication from the administration that it intended to take action. As such, I believe some on the other side the aisle believed they had no choice but to act themselves.
Mr. Chairman, I recognize the difficulty we face. We have workers who have fallen ill and we do not know why. We have questions about a flavoring that workers are exposed to during manufacturing, but we do not know whether it is the sole cause of their ailments. We have a Federal regulatory agency that is responsible for ensuring workplace safety, but until this week we did not know whether the agency would act.
Republicans proposed a sensible alternative when this bill was considered in the committee, and we plan to do the same today. We want to balance our pressing desire to act quickly to protect workers with our equally important need to adhere to sound science.
Because I believe it undermines the basic regulatory framework and neglects the necessary scientific foundation, I regret I cannot support the bill in its current form. I hope my alternative will be adopted so that we can quickly increase evidence to guide the final rules to provide the strongest protections possible.
Mr. Chairman, I yield back the balance of my time.
Mr. Chairman, I yield such time as he may consume to the gentleman from Georgia (Mr. Kingston), my next-door neighbor of historic Savannah.
Mr. Chairman, I yield back the balance of my time.
Mr. Chairman, I offer an amendment.
Mr. Chairman, my amendment is very straightforward. This would ensure that the Occupational Safety and Health Administration, OSHA, sets a permissible exposure limit as directed by the underlying bill, which can be relied in science.
I offered this amendment in the Education and Labor Committee, and we agreed to work together to see if we could reach an agreement. Between committee action and today, we were unable to reach an agreement on the timeframe addressed by my amendment. So I'm offering it for floor consideration.
I understand my colleagues' goal is to set a standard for a substance that appears to be harming manufacturing workers in and around microwave popcorn manufacturing facilities. I know the well-meaning intention of their efforts. Unfortunately, I do not share their belief that this legislation will accomplish that goal.
First, there is widespread concern that while diacetyl is unquestionably a marker, it is not the sole cause of lung impairment in these workers. In addition to this, however, this bill would regulate diacetyl and require a standard to be set based on little or no available science. In other words, if a food manufacturing facility substitutes diacetyl with another flavoring chemical, there is no guarantee that that chemical is not the one making manufacturing workers sick.
Technically, the bill before us requires OSHA to set an interim final rule for diacetyl manufacturers and microwave popcorn plants to implement engineering controls for diacetyl exposure. It then directs OSHA to set a standard that will apply to all food manufacturing facilities. The expansion of coverage from the interim rule to the final rule and the time frame of 2 years in which OSHA is given to set the standard will impact OSHA's ability to follow the appropriate legal guidelines that would apply to a normal rulemaking.
All my amendment does is ensure that OSHA promulgates a regulation with appropriate stakeholder input and the science to establish a technically feasible permissible exposure limit. Also, I would note that OSHA announced Monday that it would undertake a rulemaking on this substance.
I should note that there is a great deal of ongoing research and data gathering concerning the health effects of diacetyl. For example, the National Institute for Occupational Safety and Health is working to improve measuring diacetyl, while the National Jewish Medical Center is working to gather data from workers about lung function. California OSHA also is working with the industry to gather the much-needed information to set a standard. Without any conclusive evidence, which has yet to be generated by any source at this point in time, we are putting the cart before the horse, and because of this, I respectfully urge my colleagues to support this amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, may I inquire as to the time remaining?
Mr. Chairman, I yield such time as he may consume to the gentleman from California (Mr. McKeon), the distinguished ranking committee member.
Mr. Chairman, again, I urge adoption of the amendment. I want to commend my colleagues again for their good intentions.
I would like to restate that as a former member of the State board of the American Lung Association for a number of years, I've had a long- time concern about lung illnesses. I sincerely believe that the amendment that I have, which provides that action would be taken upon scientific evidence, is in the interest of the manufacturing workers in the United States.
Mr. Chairman, I yield back the balance of my time.
Mr. Chairman, I demand a recorded vote.