ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH
U.S. DEPARTMENT OF LABOR
BEFORE THE SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
February 24, 1998
Mr. Chairman and members of the committee, thank you for inviting me to share the views of the Occupational Safety and Health Administration (OSHA) on OSHA's potential role in furthering the President's goal of reducing exposure to environmental tobacco smoke. As you know, OSHA has a statutory responsibility to ensure that America's workers have safe and healthful workplaces. Exposure to environmental tobacco smoke (ETS) or secondhand smoke can pose a serious health risk to workers. Unlike methylene chloride or ammonia, chemicals for which OSHA has set permissible exposure limits, ETS is not a necessary component of any manufacturing process or job.
Involuntary exposure to ETS is a public health issue that merits Congressional action. As you know, the Administration has taken a number of important steps to address this health hazard. For example, in August, 1997, the President issued an Executive Order directing that employees and visitors at Federal buildings not be exposed to secondhand smoke. But Congress can and should do more, and this Administration welcomes legislation in this area. Legislation could protect a broader spectrum of the population than an OSHA regulation, since OSHA's mandate covers only workers, and could be a quicker and easier way to achieve our goals.
The Administration supports Congressional efforts to include workplace smoking restrictions in comprehensive tobacco legislation. My testimony will describe OSHA's ETS rulemaking and present the Administration's belief that tobacco legislation should include provisions to restrict smoking in workplaces and other public facilities.
The Hazard of Environmental Tobacco Smoke
The best scientific studies show that restrictions on secondhand smoke reduce the risk of death and injury to non-smokers, including the hundreds of thousands of children with asthma and other respiratory illnesses, and lead many smokers to quit the habit. Federal tobacco legislation should include provisions to restrict smoking in workplaces and other public facilities of the kind found in the President's recent Executive Order on tobacco smoke in Federal facilities.
ETS contains over 4,000 chemical compounds, including such poisons and irritants as carbon monoxide, formaldehyde, ammonia, nitrogen oxides, and hydrogen cyanide. It contains at least 43 known or suspected carcinogens, including benzene, nickel, 2-naphthylamine, and polonium-210. Exposure to ETS has been associated with many adverse health effects in nonsmokers, including lung cancer, heart disease, asthma, reproductive effects, and mucous membrane irritation. Of the more than 70 million employees working indoors, OSHA estimates that 21 million are exposed to ETS at work. Among nonsmoking American workers exposed to ETS, OSHA's preliminary estimate is that there will be up to 700 cases of lung cancer per year and between 2,000 - 13,000 deaths from heart disease per year.
The significant health risks of exposure to ETS led OSHA to commence rulemaking efforts.
History and Status of OSHA's Indoor Air Quality Rulemaking
Following petitions from public interest groups requesting an Emergency Temporary Standard prohibiting smoking in indoor workplaces, OSHA published a Request for Information (RFI) on ETS and other indoor air quality problems on September 20, 1991. OSHA sought information necessary to determine whether it would be appropriate and feasible to pursue regulatory action concerning Indoor Air Quality (IAQ). Issues on which the RFI requested comments included health effects attributable to indoor pollution, ventilation systems performance, exposure assessment, and abatement methods.
In response to the RFI, interested persons, groups, unions, and industries submitted over 1,200 comments. Commenters both supported and opposed regulating ETS in the workplace. Many urged the Agency either to ban smoking in the workplace or to allow it only in separately ventilated, designated, isolated areas.
The Agency's risk assessment and preliminary economic analysis found sufficient scientific information to support proposing a regulation on IAQ, including exposure to ETS. Therefore, on April 5, 1994, OSHA published a proposal to require employers to restrict smoking to designated smoking areas that are either outdoors or in separate, enclosed rooms that are exhausted directly to the outside of the building. The public comment period ended August 13, 1994, and was followed by public hearings from September, 1994, through March, 1995. The post-hearing comment period ended February 9, 1996.
Since then, the Agency has been reviewing and analyzing the more than 115,000 comments received, identifying and addressing issues that need to be resolved before a final rule can be promulgated. The IAQ rulemaking record is the largest ever in the Agency's history. No other issue has generated such an overwhelming response.
Several steps remain before a final IAQ standard can be published. OSHA must complete the preamble to the final rule, finish the final economic impact analysis, respond to comments in the record, prepare compliance assistance materials, obtain legal and policy review within the Department, work with the Small Business Administration to minimize any potentially significant small business impacts identified, and obtain OMB review. Modifications will occur throughout these reviews. Moreover, OSHA must ensure that it has complied with all applicable laws related to the rulemaking process, such as the Paperwork Reduction Act, the Regulatory Flexibility Act, and the Administrative Procedure Act.
It should be noted that ETS is only one part of OSHA's IAQ proposal. There are many other pollutants in indoor work environments that need controlling in order to provide safe and healthful workplaces.
The Need for Comprehensive Tobacco Legislation
The President has called on Congress to enact comprehensive tobacco legislation. On September 17, 1997, the President announced five key elements that must be at the heart of national tobacco legislation:
1. A comprehensive plan to reduce teen smoking, including tough penalties if targets are not met;
2. Full authority for FDA to regulate tobacco products;
3. Changes in the way the tobacco industry does business;
4. Progress toward other public health goals including secondhand smoke; and
5. Protection for tobacco farmers and their communities.
Proposed tobacco legislation takes two distinct approaches that involve OSHA in reducing involuntary exposure to ETS. The first, and more common approach, has been to declare, in the law, that public facilities must have and implement smoke-free environment policies. Most of these bills call on OSHA to enforce their requirements. The Agency favors this approach, because we believe that OSHA should have jurisdiction to enforce smoking restrictions in workplaces, most of which would be considered "public facilities" as defined in these bills. Each of these bills would be more effective and more readily implemented if the following provisions were included:
First, a Congressional finding that exposure to ETS causes health consequences that impose a substantial burden upon interstate commerce in terms of lost production, lost wages, medical expenses and disability compensation payments;
Second, a clear statement that any legislation does not preempt any existing or future federal, State or local law or regulation that is more protective. In this area with broad public as well as workplace implications, it is necessary and appropriate to specify that OSHA coverage does not preempt overlapping state and local regulation where another entity's smoking regulations are at least as protective as those in the legislation.
Third, a clear and specific designation of covered facilities. S. 1638 and S. 1530, for example, do not clearly define a "fast-food" restaurant and do not specify which facilities are considered to be primarily maintained for children.
The main advantage of legislation that regulates ETS directly, and is not dependent upon further OSHA rulemaking, is that the requirements can be implemented expeditiously and the broad coverage can be enforced by OSHA.
The Administration is very supportive of Congressional efforts to pass comprehensive tobacco legislation that includes provisions to reduce exposure to ETS. Such legislation could do much to prevent ETS-related heart disease, cancer, asthma, eye, nose and throat irritation, and other conditions. With its experience in protecting workers, OSHA is particularly well situated to assist. If the legislation is clear and specific, it will expedite OSHA's efforts.
Thank you again for the opportunity to present OSHA's views. I would be happy to answer any questions.