Telephone interview with Carol Jones, Health Standards Program, OSHA, April 14, 1993.
2.
Ibid.
3.
Ibid.
4.
Executive Order 12291, Federal Register, Vol. 46, February 17, 1981, p. 13196; Executive Order 12498, Federal Register, Vol. 50, January 4, 1985, p. 1036.
5.
EdlesG.J.NelsonJ., Federal Regulatory Process: Agency Practices and Procedures, Englewood Cliffs, N.J.: Prentice Hall Law and Business, 1981, 1992Supplement, p. 331.
6.
Ibid.
7.
29 U.S.C. §655(b)(1).
8.
29 U.S.C §655(b)(1).
9.
29 U.S.C. §655(b)(2).
10.
29 Code of Federal Regulations, Part 1911.1–1011.18, Industrial Union Department, AFL-CIO v. Hodgson, 472 F.2d 467, 472 n. 12 (D.C. Cir., 1974).
11.
MintzBenjamin W., OSHA History, Law, Policy, Washington D.C.: Bureau of National Affairs (1984), p. 62.
12.
Ibid., p. 63.
13.
Home Box Office v. Federal Communications Commission, 567 F.2d 9, 57 (D.C. Cir., 1977).
14.
Telephone interview with John Moran, Laborers Health & Safety Fund, Washington, D.C., March 24, 1993; telephone interview with Jim Merloni, Laborers International Union, Hopkinton, MA, March 22, 1993; telephone interview with John Barnhard, Health and Safety Director, Roofers International Union, Washington, D.C., April 13, 1993.
15.
Home Box Office, 567 F.2nd at 57.
16.
Id., at 58.
17.
Id., at 57.
18.
Id., at 59.
19.
HansenE.S., “Cancer Incidence In An Occupational Cohort Exposed To Bitumen Fumes,”Scandinavian Journal of Work Environment and Health, 1989, Vol. 15, p. 101–105; citing MenckH.R.HendersenB.E., “Occupational Differences In Rates Of Lung Cancer,”Journal of Occupational Medicine, 1976, Vol. 18, p. 797–801 and HammondE.C.SelikoffI.J.LawtherP.L.SeidmanH., “Inhalation Of Benzopyrene And Cancer In Man,” Annals of the New York Academy of Science, 1976, Vol. 271, pp. 116–124.
20.
IARC Monographs on the Evaluation of the Carcinogenic Risk of Chemicals to Humans, Vol. 35, “Polynuclear Aromatic Compounds,” Part 4, “Bitumens, Coal-Tars and Derived Products, Shale-Oils and Scots,” pp. 38–81. Lyon, International Agency for Research on Cancer, 1985.
21.
Memo to Debra Bowland, Acting Assistant Secretary for Policy, Policy Review Board, from Gerard Scannell, Assistant Secretary, OSHA, August 12, 1991. This memo was part of a group of documents obtained from the U.S. Department of Labor by Rep. David Obey (D-Wisc.) and reviewed in Rep. Obey's office, March 25–27, 1992. Hereinafter referred to as “Obey Documents.”
22.
Ibid.
23.
HansenE.S., “Cancer Incidence In An Occupational Cohort Exposed to Bitumen Fumes,”Scandinavian Journal of Work Environment and Health, 1989, Vol 15, pp. 101–105.
24.
Ibid.
25.
Ibid., p. 102.
26.
Ibid., p. 103.
27.
Ibid., p. 104.
28.
Ibid., p. 104.
29.
Telephone interview with Carol Jones, Health Standards Program, OSHA, Washington, D.C., April 14, 1993.
30.
Federal Register, Vol. 57, No. 114, June 12, 1992, p. 26188.
31.
Ibid.
32.
HansenE., “Cancer Mortality in the Asphalt Industry: A Ten Year Follow Up of an Occupational Cohort,”British Journal of Industrial Medicine, 1989, Vol. 46, p. 582–585.
33.
HansenE., “Mortality of Mastic Asphalt Workers,”Scandinavian Journal of Environmental Health, 1991, Vol. 17, p. 20–24.
34.
ParkerD.BenderA.JohnsonR.ScharberW.WilliamsA.MarburyM.MandelJ., “Minnesota Highway Maintenance Worker Cohort Mortality Study: Methods and Noncancer Mortality,”American Journal of Industrial Medicine, 1989, Vol. 15, p. 531–543.
35.
Ibid.
36.
BenderA.ParkerD.JohnsonR.ScharberW.WilliamsA.MarburyM.MandelJ., “Minnesota Highway Maintenance Worker Study: Cancer Mortality,”American Journal of Industrial Medicine, 1989, Vol. 15, p. 545–556.
37.
NorsethT.WaageJ.DaleI., “Acute Effects and Exposure to Organic Compounds in Road Maintenance Workers Exposed to Asphalt,”American Journal of Industrial Medicine, 1991, Vol. 20, p. 737–744.
38.
BurgessWilliam, Recognition of Health Hazards in Industry, New York, NY: John Wiley & Sons, 1981, p. 159.
39.
Department of Labor, Occupational Safety and Health Administration, “Air Contaminants; Proposed Rule,”Federal Register, Vol. 57, No. 114, June 12, 1992, pp. 26001–26602, p. 26183.
40.
HathawayG.ProctorN.HughesJ., and FischmanM., Editors, Chemical Hazards of the Workplace, Third Edition. New York: Van Nostrand Reinhold (1991), p. 98.
41.
National Institute of Occupational Safety and Health (NIOSH), Center for Disease Control, US. Department of Health and Human Services, Criteria For A Recommended Standard … Occupational Exposure to Asphalt Fumes, Washington, D.C.: U.S. Government Printing Office (1977), p. 2. (Hereinafter, NIOSH Criteria Document).
42.
Department of Labor, Occupational Safety and Health Administration, “Air Contaminants, Proposed Rule,”Federal Register, Vol. 57, No. 114, June 12, 1992, 26002–26602, p. 26183.
43.
NIOSH Criteria Document, p. 19.
44.
Ibid, p. 91.
45.
Ibid, p. 87.
46.
Ibid, p. 16.
47.
Ibid, p. 17.
48.
Federal Register, Vol. 48, January 21, 1983, p. 2768; “Asphalt Exemption Would Create Risk For Refinery, Foundry Workers, Unions Say,”Occupational Safety and Health Reporter, Washington, D.C.: Bureau of National Affairs, September 9, 1982.
49.
Federal Register, Vol. 57, June 12, 1992, p. 26183.
50.
Telephone interview with Carol Jones, April 14, 1993.
51.
Federal Register, Vol. 57, June 12, 1992, p. 26183.
52.
Memo to Charles Adkins, Director, Health Standards Program in OSHA, from PEL Team (Infante, Penniman, and Stein), dated December 2, 1991. This memo was part of a group of documents obtained from the U.S. Department of Labor by Rep. David Obey (D-Wisc.) and reviewed in Rep. Obey's office, March 25–27, 1992. Hereinafter referred to as “Obey Documents.”
53.
Memo to National Asphalt Pavement Association (NAPA) from John Gray and Earl Arp, July 22, 1991, attached to September 27, 1991 letter to Sen. Don Nickles (Oklahoma) from Dale Zehr, Executive Vice President, Evans & Associates Construction Company. Both documents were sent by Sen. Nickles to OSHA, and were attached to an October 24, 1991 OSHA Correspondence Control Form. Obey Documents.
54.
Outline for presentation by Joint Asphalt Industry Environmental Oversight Committee, June 24, 1991. Attached to outline is a May 7, 1991 letter to Anthony Kriech, Director of Research, Asphalt Materials, Inc., from Dr. Eva Hansen. Obey Documents.
55.
Memo to Policy Review Board from Debra Bowland, dated July 18, 1991. Obey Documents.
56.
June 24, 1991 outline for presentation, Joint Asphalt Industry Environmental Oversight Committee, with attached undated copies of overheads. Obey Documents.
57.
Ibid.
58.
Ibid.
59.
Letter to Carol Jones, Office of Standards Review, Health Standards Program, OSHA, from Dr. Eva Hansen, University of Odense, Odense, Denmark, March 20, 1990. Obey Documents.
60.
Letter to Charles Adkins, Director, Health Standards Program, OSHA, from Richard Niemeier, Director, Division of Standards Development and Technology Transfer, NIOSH, dated July 22, 1991. Obey Documents.
61.
Memo to Record, from Peter Infante, Carol Jones, Lyn Penniman, Ed Stein, dated April 9, 1991. Obey Documents. This memo documents the questions asked by the PEL team to Dr. Hansen, but unfortunately does not record her answers.
62.
Letter to Adkins from Niemeier, July 22, 1991. Obey Documents.
63.
Ibid.
64.
Ibid.
65.
Ibid.
66.
Telephone interview with Carol Jones, April 14, 1993.
67.
Minutes of July 11, 1991Policy Review Board meeting. Obey Documents.
68.
Memo to Policy Review Board from Debra Bowland, July 18, 1991. Obey Documents.
69.
Ibid.
70.
Memo to Gerard Scannell from Charles Adkins, August 7, 1991. Obey Documents.
71.
Memo to Debra Bowland, Acting Assistant Secretary for Policy, from Gerard Scannell, Assistant Secretary, OSHA, August 12, 1991. Obey Documents.
72.
Ibid.
73.
Ibid.
74.
HansenE.S., Scandinavian Journal of Work Environment and Health, 1989, Vol. 15, p. 101–105.
75.
Memo to Debra Bowland from Gerard Scannell, August 12, 1991. Obey Documents.
76.
Ibid.
77.
Ibid.
78.
Memo to Policy Review Board from Debra Bowland, Acting Assistant Secretary for Policy, August 19, 1991. Obey Documents.
79.
Ibid.
80.
Typewritten note to “Debi”, writer not identified, August 21, 1991. Obey Documents.
81.
Minutes of meeting of Policy Review Board, August 22, 1991. Obey Documents.
82.
Ibid.
83.
Ibid.
84.
Ibid.
85.
Ibid.
86.
Ibid.
87.
Undated fax to Edward Stein, from Morgan Keegan & Co., attaching article from Oil and Gas Journal. Obey Documents.
88.
Undated document titled, “Asphalt Fumes,” with a hand- written note stating,“this copy with more options was given to Alan McMillan by Chuck Adkins, 9/19/91.” Obey Documents.
89.
Memo to AdkinsCharles, Director of HSP, from PEL Team (Peter Infante, Edward Stein, Lyn Penniman), September 26, 1991. Obey Documents.
90.
Ibid.
91.
Memo to Charles Adkins from PEL team, December 2, 1991. Obey Documents.
92.
Ibid.
93.
Letter to Peter Infante from ParkerDavid L., Minnesota Dept. of Public Health, October 17, 1991. Obey Documents.
94.
Outline, titled “Outline for Asphalt Presentation to the Assistant Secretary by Health Standards Staff,” October 18, 1991, and December 2, 1991 memo to Charles Adkins from PEL team. Obey Documents.
95.
Memo to Charles Adkins from PEL team, December 2, 1991. Obey Documents.
96.
Ibid.
97.
“OSHA Draft Regulations Would Shut Down Asphalt Plants,”Washington Bulletin, National Asphalt Pavement Association, October 18, 1991. Obey Documents.
98.
Memo to Adkins from PEL team, December 2, 1991. Obey Documents.
99.
Undated letter to “Peter,” with handwritten response to “Chuck.” Obey Documents.
100.
Undated document,“PELs and Avoidance of Cancer Category,” author not given. Obey Documents.
101.
Ibid. The Norwegian study was NorsethT., “Acute Effects and Exposure to Organic Compounds in Road Maintenance Workers Exposed to Asphalt,”American Journal of Industrial Medicine, 1991, Vol. 20, pp. 737–744. Ironically, the study did not offer any data about carcinogenicity, but focused solely on the respiratory irritant effects of asphalt fume, and found irritation at exposure levels of less than .5 mg/m3.
102.
Undated document,“PELs and Avoidance of Cancer Category,” author not given. Obey Documents. The “11m Circuit case” refers to AFL-CIO et al. v. OSHA, 965 F.2d 962 (11th Cir. 1992). The case was eventually decided on July 7, 1992, and vacated the entire 1989 air contaminants standards for general industry.
103.
Memo to Alan McMillan, Assistant Secretary, Department of Labor, from Charles Adkins, Health Standards Program, January 28, 1992. Obey Documents.
104.
Undated letters from Secretary Scannell to Earl Arp, Asphalt Institute, Senator Bentson, Senator Johnson, Rep. Livingston, thanking them for inquiries and comments about asphalt fume; materials submitted to Air Contaminants Rulemaking Docket, #H020a. Obey Documents.
105.
Telephone interview with BarnardJohn, Health and Safety Director, Roofers International Union, Washington, D.C., April 13, 1993; telephone interview with Scott Schneider, Occupational Health Foundation, Washington, D.C., April 13, 1993.
106.
Telephone interview with Pam Susie, Occupational Health Foundation, 1126 16th St., NW, Washington, D.C. 20038, April 12, 1993.
107.
Telephone interview with MoranJohn, Laborers Health and Safety Fund, Washington, D.C., March 24, 1993.
108.
For example, MirerF., “Labor and Industry Should Cooperate To Reduce the Ergonomic Injury Rate,”Occupational Health and Safety, Vol. 61, October 1992, p. 34,94–95.
109.
Telephone interview with John Barnard, April 13, 1993.
110.
Ibid.
111.
Telephone interview with Scott Schneider, April 13, 1993.
112.
Ibid.
113.
Federal Register, Vol. 57, No. 114, June 12, 1992, p. 26005.
114.
Telephone interview with Carol Jones, April 14, 1993.
115.
Minutes of August 22, 1991 meeting of Policy Review Board (Obey Documents); telephone interview with Carol Jones, HSP, April 14, 1993.
116.
The Obey documents do not mention any meetings between HSP staff and industry representatives, although there were a few meetings, not documented, which HSP staff attended. Telephone interview with Carol Jones, April 14, 1993.
117.
The PEL team's perception that it was being closed out of meetings was memorialized in two memos to Charles Adkins, dated September 26, 1991 and December 2, 1991. The Obey documents did not include any responses or rebuttals from Adkins to the two memos.
118.
Memo to Charles Adkins from PEL team, December 2, 1991.
119.
DavisB., “Proposal on Limiting Asphalt Exposure For Workers Is Gutted by Labor Agency,”The Wall Street Journal, May 21, 1991, p. A4.
120.
June 24, 1991 outline for presentation, Joint Asphalt Industry Environmental Oversight Committee. Obey Documents.
121.
29 U.S.C. §655(b)(5).
122.
“Roundtable On OSHA At 20: What Now?”New Solutions, 1991, Vol. 1, No. 4, p. 50–65, 52.
123.
MerrillM., “No Pollution Prevention Without Income Protection: A Challenge to Environmentalists,”New Solutions, 1991, Vol. 1, No. 3, p. 9; NobleC., “OSHA At 20,”New Solutions, 1990, Vol. 1, No. 1, p. 30–42.
124.
SuskindR., “Tough Vote: Threat of Cheap Labor Abroad Complicates Decisions to Unionize,”Wall Street Journal, July 28, 1992, p. A1 and A8.
125.
NobleC., “OSHA At 20,”New Solutions, 1990, Vol. 1, No. 1, p. 33.
126.
OzonoffD., “Failed Warnings: Asbestos-Related Disease and Industrial Medicine,”The Health and Safety of Workers, Case Studies in the Politics of Professional Responsibility, BayerR., ed., New York: Oxford University Press (1988), pp. 139–218.
127.
Industrial Union Department v. American Petroleum Institute, 448 U.S. 607 (1980).
128.
American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1981).
129.
Society of the Plastics Industries v. OSHA, 509 F.2d 1301 (2nd Cir. 1975, cert. den. 421 U.S. 992 (1975).
130.
AFL-CIO et al. v. OSHA, 965 F.2nd 962 (11th Cir. 1992). The “et al.” refers to the American Iron and Steel Institute, the Interstate Natural Gas Association, the Society of the Plastics Industry, all petitioners, as well as many other intervenors. Unions, too, have challenged OSHA regulations, although not as frequently as industry. Predictably, unions claim the regulations are not strict enough. See, e.g., Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607 (1980).
131.
For a discussion on the problem of the domination of OSHA by health and safety professionals, see Michael Merrill's comments in “OSHA At 20, What Then?”New Solutions, 1991, vol. 1, No. 4, p. 59–60.
132.
29 U.S.C. §655(a).
133.
29 U.S.C. §655(b)(5).
134.
7 U.S.C §136a(5).
135.
7 U.S.C. §136(j) and 136 (bb).
136.
7 U.S.C. §136a(6).
137.
7 U.S.C. §136d(c)(1).
138.
7 U.S.C. §136(bb); Environmental Defense Fund v. Environmental Protection Agency, 548 F.2d 998, 1003 (D.C. Cir., 1976).
139.
40 Code of Federal Regulations, Part 164.121(g) (1975); EDF v. EPA, 548 F.2d at 1004.
140.
S. Doc. No 248, 79th Cong., 2d Session 208, 270 (1946); EDF v. EPA, 548 F.2d at 1004.
141.
548 F.2d at 1004.
142.
Federal Register, Vol. 57, No. 114, June 12, 1992, p. 26188.
143.
Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607,655 (1980).
144.
Id., at 653.
145.
Id. at 653, fn. 61.
146.
For further discussion of a legislative override of the benzene decision, see MendeloffJ.M., The Dilemma of Toxic Substance Regulation, Cambridge, MA: MIT Press (1988), pp. 231ff.
147.
See H.R. 1280, the Comprehensive Occupational Safety and Health Reform Act, 103rd Cong.
148.
Recent estimates of union “wage premiums” find that union work forces command 30 percent more than nonunion work forces. See SeligmanD., “More Depressing Math About Unions,”Fortune, Vol. 125, March 9, 1992, p. 163–164.
149.
Ibid.
150.
An illustration of such circumstances was the International Longshoremen's and Warehousemen's Union of San Francisco during World War II, and its success in resisting speed-ups in production and no-strike clauses of indefinite duration. The ILWU managed to maintain control of working conditions and although members worked longer hours, and tolerated unusual military regulations and speed-ups, the union decided what and how much to sacrifice. See, KimeldorfH., “World War II and the Deradicalization of Unions,”Labor History, Vol. 33, Spring 1992, pp. 248–278.
151.
RosnerD., and MarkowitzG., “Health And Safety As a Class Issue: The Workers' Health Bureau Of America During The 1920s,”Dying for Work, Indiana: Indiana University Press (1987), p. 55.
152.
Ibid., p. 60.
153.
Ibid., p. 62.
154.
S. 1622, 102d Cong., 2d Sess., 1991.
155.
See, for example, ShapiroS.McGarityT., “Reorienting OSHA: Regulatory Alternatives and Legislative Reform,”Yale Journal on Regulation, 1989, Vol. 6, No. 1, p. 1–63.
156.
NobleC., “OSHA At 20,”New Solutions, Vol. 1, No. 1, Spring 1990, pp. 30–42, p. 38.
157.
MerrillM., “No Pollution Prevention Without Income Protection: A Challenge to Environmentalists,”New Solutions, Vol. 1, No. 3, Winter 1991, pp. 9–16.
158.
Ibid., p. 53.
159.
“Roundtable on OSHA At 20: What Now? Part 2,”New Solutions, Vol. II, No. 1, pp. 37–49, p. 38.
