[Senate Hearing 107-574]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-574
 
WORKPLACE SAFETY AND HEALTH: OVERSIGHT OF MSHA AND OSHA REGULATION AND 
                              ENFORCEMENT

=======================================================================

                                HEARING

                               BEFORE THE

            SUBCOMMITTEE ON EMPLOYMENT, SAFETY, AND TRAINING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

  EXAMINING WORKPLACE SAFETY AND HEALTH OVERSIGHT OF THE MINE SAFETY 
HEALTH ADMINISTRATION AND OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION 
                       REGULATION AND ENFORCEMENT

                               __________

                             JULY 11, 2002

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions








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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     JUDD GREGG, New Hampshire
TOM HARKIN, Iowa                     BILL FRIST, Tennessee
BARBARA A. MIKULSKI, Maryland        MICHAEL B. ENZI, Wyoming
JAMES M. JEFFORDS (I), Vermont       TIM HUTCHINSON, Arkansas
JEFF BINGAMAN, New Mexico            JOHN W. WARNER, Virginia
PAUL D. WELLSTONE, Minnesota         CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington             PAT ROBERTS, Kansas
JACK REED, Rhode Island              SUSAN M. COLLINS, Maine
JOHN EDWARDS, North Carolina         JEFF SESSIONS, Alabama
HILLARY RODHAM CLINTON, New York     MIKE DeWINE, Ohio

           J. Michael Myers, Staff Director and Chief Counsel
             Townsend Lange McNitt, Minority Staff Director

                                 ______

            Subcommittee on Employment, Safety, and Training

                 PAUL D. WELLSTONE, Minnesota, Chairman

EDWARD M. KENNEDY, Massachusetts     MICHAEL B. ENZI, Wyoming, Chairman
CHRISTOPHER J. DODD, Connecticut     JEFF SESSIONS, Alabama
TOM HARKIN, Iowa                     MIKE DeWINE, Ohio

                    Margery F. Baker, Staff Director
                Raissa H. Geary, Minority Staff Director

                                  (ii)

















                            C O N T E N T S

                               __________

                               STATEMENTS

                        Thursday, July 11, 2002

                                                                   Page
Wellstone, Hon. Paul D., a U.S. Senator from the State of 
  Minnesota......................................................     1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming..     3
Henshaw, John, Assistant Secretary, Occupational Safety and 
  Health Administration, U.S. Department of Labor, Washington, 
  DC; and David Lauriski, Assistant Secretary, Mine Safety and 
  Health Administration, U.S. Department of Labor, Washington, DC     7

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    John Henshaw.................................................    28
    David D. Lauriski............................................    31
    U.S. Chemical Safety and Hazard Investigation Board..........    35
    Response to questions of Senator Wellstone from John Henshaw.    38
    Response to questions of Senator Murray from David Lauriski..    39
    Response to questions of Senator Murray from John Henshaw....    40
    Response to questions of Senator Enzi from David Lauriski....    41
    Response to questions of Senator Wellstone from David 
      Lauriski...................................................    44
    Response to questions of Senator Murray from David Lauriski..    51
    Response to questions of Senator Enzi from John Henshaw......    53

                                 (iii)














WORKPLACE SAFETY AND HEALTH: OVERSIGHT OF MSHA AND OSHA REGULATION AND 
                              ENFORCEMENT

                              ----------                              


                        THURSDAY, JULY 11, 2002

                               U.S. Senate,
  Subcommittee on Employment, Safety, and Training,
of the Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:05 a.m., in 
room SD-430, Dirksen Senate Office Building, Senator Wellstone 
(chairman of the subcommittee) presiding.
    Present: Senators Wellstone and Enzi.

                 Opening Statement of Senator Wellstone

    Senator Wellstone. We will ask for some order in the back 
and for people to please come in and be seated, because we will 
now bring the Subcommittee on Employment, Safety, and Training 
to order.
    First, I want to call this hearing of the Subcommittee on 
Employment, Safety, and Training to order, and I want to thank 
both witnesses for joining us today.
    Mr. Henshaw and Mr. Lauriski, nothing could be more 
important than protecting the health and safety of working men 
and women.
    Our topic today is oversight of the regulation and 
enforcement responsibilities of two vitally important Federal 
agencies, the Occupational Safety and Health Administration, 
better known as OSHA, and the Mine Safety and Health 
Administration, known as MSHA.
    Two days ago on Wall Street, the President, referring to 
financial practices and behavior, said, and I quote: ``Self-
regulation is important, but it is not enough.'' He was 
referring to the necessary Government role in regulating a 
market economy. He went on to point out that it is also 
sometimes the job of Government to ``ensure that those who 
breach the trust of the American people are punished.''
    Earlier this year, the President had this to say about the 
importance of Government standards and the enforcement of these 
standards, and I quote again from the President: ``A good 
business always respects the boundaries of right and wrong''--
and I know that my colleague Senator Enzi absolutely agrees 
with that. ``In our country, the law defines many of these 
responsibilities, from workplace safety to environmental 
protection.''
    Finally, during a recent visit to a high school in 
Missouri, President Bush said that he wants Government agencies 
to be accountable. Enforcement of sound standards and holding 
Government accountable is what today's hearing is all about. 
This is a committee oversight hearing.
    Without minimizing concerns about national security or the 
current lack of confidence in financial markets, the trauma 
that working men and women and their families face every day 
from injury, illness, and even death on the job is no less 
important. As events of the past year have sorely demonstrated, 
systems, whether they be to protect financial markets, our 
national security, or the safety and health of our work force, 
cannot work unless everyone does the job they are supposed to 
do--auditors, financial analysts, corporate executives, and 
Government.
    Today we will examine how well Government is performing its 
job with respect to the safety and health of America's workers. 
Born from the blood, sweat, and political struggle of thousands 
of Americans, OSHA and MSHA are charged with protecting the 
safety and health of hard-working men and women as they go 
about their daily jobs. They are responsible for administering 
comprehensive regulatory and enforcement systems to ensure that 
workers do not lose their lives, are not injured, and do not 
contract illnesses because of exposure to workplace hazards or 
risks.
    OSHA's purpose according to the Occupational Safety and 
Health Act 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.''
    MSHA was created among other reasons because Congress found 
that there was ``an urgent need to provide more effective means 
and measures for improving the working conditions and practices 
in the Nation's coal or other mines in order to prevent death 
and serious physical harm, and in order to prevent occupational 
diseases originating in such mines.''
    Today we will examine how well OSHA and MSHA are meeting 
these responsibilities. Frankly, I have concerns as chairman of 
this subcommittee. I am troubled about whether OSHA is meeting 
is responsibilities under the OSH Act to set mandatory 
occupational safety and health standards necessary to 
accomplish the overall goal of safe and healthful working 
conditions.
    Protecting workers from exposure to explosive chemicals, 
from the ravages of tuberculosis, from the heartache of birth 
defects, miscarriages, and other reproductive health problems 
caused by exposure to toxic chemicals, from disabling hearing 
loss, from lung cancer and other respiratory is what OSHA is 
supposed to be about. OSHA cannot abdicate these 
responsibilities. It is a higher duty to America's working men 
and women. It simply cannot do everything by consensus. That is 
why Congress gave OSHA the authority to promulgate mandatory 
occupational safety and health standards.
    In setting up these hearings, I had an understanding with 
Mr. Henshaw and the distinguished ranking minority member that 
we would use the time here today to focus on issues other than 
repetitive stress injuries--not because this issue is not 
extremely important, but because we wanted to be sure that 
other important safety and health issues did not get lost. So I 
do not want to dwell on the topic of repetitive stress injuries 
other than to note my concern that the administration's 
dismissive attitude toward setting a meaningful repetitive 
stress injury standard was, I fear, just the tip of the 
iceberg.
    Voluntary partnerships and programs have their place, but 
the fact is, as President Bush has noted, self-regulation is 
never enough. We need standards, and the Government needs to 
enforce those standards, because not everyone can be counted on 
to do the right thing.
    That is what Government is for. That is why we should hold 
Government accountable to do this.
    I also have some grave concerns about MSHA's enforcement 
efforts. I will want to focus in particular on two catastrophic 
events. First, there was the massive coal impoundment failure 
at A.T. Massey mine in Kentucky that spewed 300 million gallons 
of coal sludge into over 70 miles of creeks and rivers along 
the Kentucky-West Virginia border. This was said to be a 
catastrophe on the same scale in terms of damage to the ecology 
and surrounding communities as the Exxon Valdez oil spill--the 
worst ecological disaster ever--in the Southeast United States.
    How could such a catastrophe happen just 6 years after a 
similar impoundment failure at the same site and the purported 
correction of deficiencies by the company? What went wrong, and 
how can such catastrophic failures be prevented in the future?
    Then, there is the recent tragic explosion in the Jim 
Walters Resource Mine in Alabama, killing 13 miners. At the 
time of the explosion there were 31 outstanding citations that 
had not been abated, some for violations that I would have 
thought were serious--1,000 feet of flammable coal dust--but 
which the MSHA inspector apparently did not think were serious. 
Were the MSHA inspectors doing their job? Was the company being 
held to sufficiently rigorous standards? Is the pattern of 
violations and citations at this mine indicative of overall 
gaps in MSHA's enforcement efforts? And how can MSHA accomplish 
its daunting enforcement challenges on the budget and with the 
resources currently being sought by the Bush Administration in 
its fiscal year 2003 budget?
    These are some of the questions that I will want to explore 
with our witnesses today. Again, I thank the two of you for 
coming, and I look forward to your testimony.
    Senator Enzi?

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you, Mr. Chairman.
    The topic of today's hearing is ``Workplace Safety and 
Health: Oversight of MSHA and OSHA Regulation and 
Enforcement.'' As the ranking member of this subcommittee, I 
feel a special responsibility to protect the safety and health 
of America's workers.
    One of the most important aspects of this responsibility is 
to oversee the agencies charged with protecting our workers and 
miners, and I thank you for having this hearing.
    The Occupational Safety and Health Act created the 
Occupational Safety and Health Administration, OSHA, in order 
to assure as far as possible every working man and woman in the 
Nation safe and healthful working conditions.
    The Mine Safety and Health Administration was created under 
the Mine Safety and Health Act to create the safety and health 
of the mining industry's most precious resource--the miner.
    Today we pause to assess the effectiveness of these 
agencies in reaching these goals over the past year. Today we 
also look ahead to discuss OSHA's and MSHA's vision and 
strategies for enhancing their effectiveness.
    This hearing is entitled ``Oversight of MSHA and OSHA 
Regulation and Enforcement.'' However we cannot focus merely on 
regulatory and enforcement activities to gain a full 
appreciation of either agency's effectiveness.
    Furthermore, where problems may be identified, we must look 
beyond just regulation and enforcement for the answers. 
Regulation and enforcement are vital to OSHA and MSHA's mission 
to protect our workers and miners. However, standards and 
enforcement alone will not assure their safety and health. An 
approach to occupational safety that is adversarial in nature 
and based solely on enforcement has not effectively tapped into 
the resources of the Agency, nor has it effectively tapped into 
the resources of employers and employees across the country who 
are committed to improving safety in mines and other workplace.
    The fact is enforcement alone cannot ensure the safety and 
health of the work force. We must focus our efforts on 
preventing injuries and illnesses from occurring in the first 
place.
    It is also a fact that the Government cannot ensure the 
safety of all of the Nation's workers and miners on its own. It 
would take OSHA 167 years to inspect every workplace in America 
one at a time. OSHA and MSHA must partner with business and 
labor to seek creative and proactive solutions to workplace 
safety.
    OSHA's Voluntary Protection Program is an excellent example 
of the successes of a proactive and collaborative approach. 
Overall, employers participating in VPPs have illness and 
injury rates that are more than 50 percent below the average 
for their industries. They have fewer lost workday injuries, 
and they have reduced workers' compensation costs.
    I would like to see the codification of this important and 
successful program. I urge these agencies to consider the 
unique needs and capabilities of small mines and small 
businesses in OSHA's and MSHA's regulatory and compliance 
activities. Small businesses and small mines face unique safety 
and health challenges that could greatly benefit from the 
guidance of OSHA and MSHA, respectively, as well as from the 
guidance of larger companies, those VPP companies that I 
mentioned.
    I look forward to hearing from Assistant Secretary Henshaw 
and Assistant Secretary Lauriski about their agencies' efforts 
to address these concerns.
    With respect to enforcement activities, the skills and 
training of compliance officers and investigators is a key to 
effective enforcement. I also look forward to hearing from the 
assistant secretaries about their agencies' efforts to enhance 
the training and skills of compliance officers. I would also 
like to hear about OSHA's and MSHA's efforts to improve the 
effectiveness and fairness of the standard-setting process.
    I want to thank the two assistant secretaries for appearing 
today, and I thank them for their efforts to improve the safety 
and health of Wyoming's and America's workers and miners.
    This last year, I had an opportunity to learn a little 
something about statistics. One-third of the Nation's coal is 
mined in my country, and I remember having a visitor from the 
Tokyo press come to my county to take a look at the mines--we 
talked him into it; he was pretty sure that they were dirty and 
dangerous--and after he had a chance to tour, he found out that 
they were both clean and safe.
    We have had some mines that have gone for 4 years without a 
lost time accident. But this last year, we had one injury that 
paralyzed a person from the neck down, and we had a death. Now, 
compared to past years, that is about a 1,000--or, actually, it 
is a higher percentage than that--percent increase in deaths. 
So that sometimes the statistics get skewed by having a good 
workplace. But it is something that everybody has been 
cognizant of. Some new programs have come out of it. One of my 
favorites is the Come Home Safe Program where everybody in the 
family is encouraged to encourage the worker to be safe that 
day and to come home to them that night.
    Another program that does not have any legal constitution 
is one of near misses, talking about the near misses and 
sharing those with other people who might be in that same 
situation, because the near miss is an accident that did not 
quite happen, but it is an accident that could happen, and that 
is where some of the good prevention comes in.
    I would like to thank you for your efforts in focusing on 
collaboration and education and compliance assistance to make 
your mission more effective.
    I apologize that I will not be able to be here for the 
entire hearing. We are having a bill that I have put hundreds 
of hours into debated on the floor, and I have an amendment 
that is pending at the moment, so I am going to have to go over 
there.
    I would ask unanimous consent remain open so that I can 
address some questions after the testimony even if I am not 
here--in this case, unanimous consent is just you, I guess.
    Senator Wellstone. Absolutely, and I am pleased to give 
that unanimous consent.
    I also want to apologize and say that we have everything 
going on today. We have a markup in the HELP Committee that was 
just rescheduled for the same time as our subcommittee hearing. 
We have, as Senator Enzi said, a very important debate going on 
on the floor, and he has been very involved with some of the 
reform efforts. But it did seem to me that it was too important 
to put this off, so we will go forward, and any questions or 
responses to any comments that you want to put in the record, 
please do so, Senator.
    Senator Enzi. Thank you.
    [Questions of Senator Enzi may be found in additional 
material.]
    Before we begin I have a prepared statement from Senator 
Murray.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    Thank you, Senator Wellstone, for calling this important 
hearing today. I appreciate your long-standing commitment to 
protecting workers in this country.
    As you know, America's workers are the foundation of our 
economy--an economy that, even during an economic downturn, 
remains the strongest economy in the world.
    I believe workers must be safe and healthy for the 
economy's potential to be maximized.
    I look forward to getting an update from Mr. Henshaw and 
Mr. Lauriski on current efforts by the Occupational Safety and 
Health Administration (OSHA) and the Mine Safety and Health 
Administration (MSHA) (m-shaw) to improve protections for 
workers.
    Thank you, also, Senator Wellstone, for cosponsoring a bill 
I recently introduced, S. 2641, the Ban Asbestos in America Act 
of 2002.
    This legislation will take a crucial step forward in 
protecting workers and consumers by doing something which most 
Americans thought was done years ago: it bans asbestos in the 
U.S.
    The Environmental Protection Agency tried to ban asbestos 
in 1989, but the EPA's regulations were overturned in 1991.
    While new uses of asbestos were banned, existing uses were 
not.
    Last year the United States consumed 13,000 metric tons of 
chrysotile asbestos to make roofing materials, gaskets, 
friction products and other items.
    In contrast, asbestos has been banned in more than 20 
countries, and will be banned throughout the entire European 
Union by 2005.
    My interest in this issue stems from a series of newspaper 
articles which appeared in the Seattle Post-Intelligencer.
    In late 1999, the paper ran stories about asbestos 
contamination from the vermiculite mine near Libby, Montana.
    The paper reported on the high incidence of asbestos-
related disease in that community caused by decades of exposure 
to the asbestos from the mine.
    But the Post-Intelligencer's investigation wasn't limited 
to Libby.
    The paper has covered asbestos-contamination at talc, 
taconite and vermiculite mines throughout the country, has 
found elevated concentrations of asbestos in dust samples at 
gas stations, and has covered EPA's findings on asbestos in 
horticultural products made with vermiculite.
    The paper has repeatedly raised questions about whether we 
are doing enough to protect workers and consumers from asbestos 
exposure.
    I'm convinced that we're not; and that is why I have 
introduced the Ban Asbestos in America Act of 2002.
    Senator Wellstone. Mr. Henshaw?

 STATEMENTS OF JOHN HENSHAW, ASSISTANT SECRETARY, OCCUPATIONAL 
  SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, 
WASHINGTON, DC.; AND DAVID LAURISKI, ASSISTANT SECRETARY, MINE 
  SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, 
                        WASHINGTON, DC.

    Mr. Henshaw. Thank you, Mr. Chairman.
    Thank you for the opportunity to discuss the Occupational 
Safety and Health Administration's commitment to protecting 
American workers.
    I would especially like to discuss the Secretary's and my 
vision for the Agency and the progress that OSHA has made in 
achieving that vision.
    When we look at the State of occupational safety and health 
in this Nation, we have many reasons for optimism. At 6.1 
injuries per 100 workers, the overall injury and illness rate 
is the lowest since the Bureau of Labor Statistics started 
compiling these statistics, and there is a chart to my right 
which displays this.
    Since OSHA's inception in the early 1970's, the rate has 
fallen by about 45 percent. In those industries where OSHA has 
targeted inspections, there have been even greater 
improvements.
    Furthermore, the extent of cooperation between businesses, 
labor, and OSHA as measured by the number of partnerships, 
participation in the Voluntary Protection Program that Senator 
Enzi mentioned, and amount of compliance assistance activities 
is greater than ever before.
    Even though we have accomplished much, I recognize that 
there is also much to do. Nearly 6,000 workers suffer fatal 
accidents each year, and in the year 2000 alone, there were 5.7 
million injuries and illnesses in America's workplaces. Our 
focus, as you reiterated earlier, is to drive down fatalities 
and injuries and illnesses even further--as far as possible.
    Enforcement and regulatory actions are certainly two of the 
more important tools for making workplaces even safer. OSHA is 
increasing its enforcement efforts in 2002 with more 
inspections, particularly health inspections, and targeting 
enforcement on the most dangerous workplaces in the high-hazard 
industries.
    Through our enforcement efforts, we plan to conduct 36,400 
inspections this year.
    OSHA is also setting realistic goals and objectives in our 
regulatory program. We have spent the past year assessing the 
Agency's capabilities and planning regulatory priorities. 
OSHA's regulatory agenda now reflects an honest appraisal of 
what we can responsibly accomplish and the commitments we plan 
to meet.
    Our current regulatory agenda, published May 13 of 2002, 
includes the publication of two final rules and seven Notices 
of Proposed Rulemaking.
    Beyond our regulatory and enforcement activities, I would 
like to point out how OSHA is showing safety and health 
leadership in other ways. During the 9 months of rescue and 
cleanup of the World Trade Center site, we monitored safety 
conditions to ensure that problems were fixed before anyone got 
hurt. We protected thousands of workers by overseeing the 
fitting and distribution of more than 130,000 respirators and 
handing out over 40,000 pieces of personal protective equipment 
and taking more than 6,000 air and bulk samples. I am pleased 
to report that there were no work-related deaths after the 
collapse of the two buildings and only 35 lost time injuries 
and a remarkably low rate of 2.3 injuries per 100 workers. 
Demolition sites normally have about 4.3 lost time injuries.
    OSHA is also taking the lead in the safety and health of 
immigrant workers. As the committee has noted, many immigrant 
workers are often at greater risk than other workers, and far 
too often lose their lives on the job. OSHA has targeted 
inspections at workplaces such as meatpacking, where there are 
large numbers of immigrant workers. We have added Spanish 
language capability to our 800 emergency number. We have 
created a Spanish web page and are distributing Spanish 
language editions of employee rights notices.
    I believe that for OSHA truly have beneficial impact in 
workplaces, we must go beyond enforcement and standard-setting. 
OSHA's participation with industry, professional and labor 
organizations is another valued means of protecting workers.
    There are currently 137 active partnerships between OSHA 
and the private sector that are producing positive results for 
the Agency's Strategic Partnership Program.
    Mr. Chairman, in conclusion, I believe that whenever we 
enter a workplace, whether as inspectors or as providers of 
compliance assistance, it is imperative that we provide 
services that will help lead to a safer workplace, because when 
OSHA truly helps employers and their employees, the impact 
extends beyond the confines of the workplace. It extends to the 
overall health and welfare of the community.
    That is the Secretary's and my goal--to ensure that OSHA 
makes a difference where it counts--in the lives of every 
worker in America.
    Thank you. I would be pleased to answer questions.
    Senator Wellstone. Thank you, Secretary Henshaw.
    [The prepared statement of Mr. Henshaw may be found in 
additional material.]
    Senator Wellstone. Mr. Lauriski?
    Mr. Lauriski. Mr. Chairman, thank you for this opportunity.
    I am pleased to appear before you today to discuss the 
ongoing efforts of the Mine Safety and Health Administration to 
promote safety and health in our Nation's mines.
    Last year, we set meaningful and measurable safety goals to 
reduce mining industry fatalities and to reduce the nonfatal 
days lost injury rate. I am happy to report that in 2001, the 
number of mining deaths and the incident rates of injuries in 
this country was the lowest ever recorded. This year, like last 
year, we have set ambitious goals, but they are achievable 
goals, both for safety and for health.
    Beginning in around 1994, the industry reached a plateau in 
reducing injuries and deaths, so it was evident that we needed 
new ideas and methods to get to the next level of safety and 
health. This agency has primarily emphasized the enforcement 
mechanisms embodied in the Mine Act, focusing on physical 
conditions in the workplace. The Act, however, provides us with 
a broad range of tools such as education and training, 
compliance assistance, and technical support, in addition to 
enforcement.
    In numerous meetings over the past year with our 
stakeholders, we have been asked time and time again to use 
tools that are preventive rather than reactive. Utilizing this 
input from our stakeholders, we have devised a management plan 
to help move the mining industry to anew level of safety and 
health. This plan focuses on more collaboration with 
stakeholders, assistance to the industry in preventing 
accidents and illnesses, and improvements in internal practices 
to enhance mine safety and health performance.
    Our stakeholders have committed themselves to work 
collectively to meet our health and safety goals.
    There are two major accident investigations which I know 
are of interest to you. First is the Martin County Coal 
Company's impoundment breakthrough in Inez, KY. When I began at 
MSHA, the investigation of that incident was completed, and the 
report was ready to be released.
    MSHA cited the company for two violations that contributed 
to the release of 300 million gallons of coal slurry, and we 
assessed each of those violations at the statutory maximum 
$55,000 civil penalty.
    As a result of the failure, I ordered an internal review of 
our procedures related to that impounded into our general coal 
mine impoundment procedures and processes nationwide. That 
review is nearing completion.
    We are also working with the Department of Interior's 
Office of Surface Mining to improve communications and discuss 
how to best address the recommendations of the National Academy 
of Sciences Impoundment Report that Congress requested.
    In September of last year, explosions at Jim Walter 
Resources Number 5 underground mine in Alabama killed 13 miners 
and injured three others. We have completed the onsite part of 
our investigation, and the mine is now in production, and we 
are continuing to analyze evidence to determine the cause of 
the explosion. If the investigation reveals a violation of MSHA 
standards, we will take enforcement action.
    Some have expressed concerns about MSHA's practice at the 
mine, so I have assigned an internal review team to investigate 
the quality of our management processes and procedures, 
including enforcement activities, at the mine and in the MSHA 
district in which it is located. The review, like the 
investigation, is continuing.
    MSHA will continue to enforce and meet its mandate under 
the Mine Act. I want to emphasize that there will be no less 
enforcement. Enforcement will focus on more overall safety and 
health matters and identifying system weaknesses that may lead 
to accidents.
    Since we began our compliance assistance efforts last year, 
some skeptics have said that we cannot increase compliance 
assistance without lessening enforcement. I respectfully 
disagree. As you can see in this chart, there was an increase 
in the number of citations and orders that we issued--5\1/2\ 
percent, to be exact--from 2000 to 2001. This increase cannot 
be attributed solely to a rise in the number of mines, because 
we know that there was only a 1\1/3\ percent increase in the 
number of mines during the same period.
    Mr. Chairman, I use this statistic advisedly to show that 
MSHA is committed and will continue to commit to its 
enforcement requirements. But MSHA's principal objective is not 
to issue citations. It is to reduce fatalities and injuries. We 
do not believe that the number of citations issued should 
become the measure of effectiveness in achieving our objective.
    While we have seen a reduction in the types and severity of 
violations we have found at mines, we have also seen a 
reduction in the injury and fatality rates. This chart shows 
the correlation between unsafe conditions in the workplace and 
accident rates. A significant and substantial citation, or an 
incident citation as the chart shows, is issued for those 
violations that have a reasonable likelihood of producing a 
serious injury or illness. This chart supports the basic 
philosophy of the Mine Act. A declining number of serious 
violations correlates with the rate of decline and serious 
injury rates.
    As I said earlier, we are concerned about the flattening of 
injury and fatal incident rates. The traditional enforcement 
scheme is no longer bringing a reduction in these rates. This 
is solid evidence that we need to move the agency in a new 
direction. We must use other tools. To do otherwise is to 
accept the status quo, and accepting the status quo is not 
something that we should be willing to do.
    We are revamping our internal training programs to 
strengthen our processes, to correct any existing weaknesses or 
gaps, and most importantly, to further support our own staff's 
health and safety skill sets.
    We are also responding to our stakeholders' call for more 
user-friendly training materials and mine site training for 
mine operators and miners and have translated numerous 
materials into Spanish.
    Secretary Chao recently announced a major new compliance 
assistance initiative to help employers better understand and 
meet their responsibilities to protect workers. In support of 
that initiative, we at MSHA have developed a compliance 
assistance plan that sets out specific steps that we are taking 
to improve our outreach to mine operators and miners.
    Our website provides access to a multitude of resources for 
compliance assistance. It also provides access to MSHA's data 
retrieval system to retrieve mine-specific information. More 
reports will be added to this system as time progresses, and 
the website will soon be available in its entirety in Spanish.
    Compliance assistance is always needed when new regulations 
are issued. Prior to the effective date of the new final rule 
on hazard communication, we will hold 15 national rollout 
meetings and about 100 supplemental local meetings to give mine 
operators the opportunity to learn how to comply with the rule. 
We will also provide onsite compliance assistance.
    Operators of small mines face unique challenges in 
protecting their workers, so we are establishing an Office of 
Small Mine Health and Safety that will coordinate a National 
Small Mine Initiative to assure compliance at small mines and 
to give compliance assistance.
    And we are reviewing existing regulations to determine 
applicability to current mining practices and to identify those 
that create undue burden on small mine operators.
    MSHA has published several important final rules recently. 
The hazard communication rule, which is an information and 
training rule, will reduce injuries and illnesses related to 
chemicals in the mining industry. The high-voltage longwall 
rule allows a mine to use current technology without the need 
to petition this agency for a modification of the existing 
standards. The Office of the Inspector General made three 
recommendations on asbestos that would require rulemaking, and 
recently completed seven public meetings to gather information 
and data to assist us in our deliberations on these issues. We 
also solicited written comments in the public comment period 
just closed this past Tuesday. We are also continuing our work 
on health rules that will address respirable coal mine dust 
concerns.
    Finally, technical support is another tool of the Mine Act. 
Our technical experts are creating partnerships to more 
effectively identify and evaluate technological solutions to 
mining hazards, and we are also identifying new technologies to 
address emerging hazards.
    In conclusion, Mr. Chairman, we have examined our way of 
business and look for new ways to use our existing tools to get 
to the next level of improved health and safety performance. I 
have just outlined some of those for you. I am confident that, 
working in partnership with our stakeholders, we can achieve 
these goals.
    Mr. Chairman, that concludes my prepared remarks, and I 
would be happy to answer any questions.
    [The prepared statement of Mr. Lauriski may be found in 
additional material.]
    Senator Wellstone. I would like to thank both of you, and I 
will start with Mr. Henshaw--and by the way, I do appreciate, 
Mr. Henshaw, that the trend of reduction in injury and illness 
is important, but what we want to do is make sure that it 
continues that way. We want to make sure that the kind of 
vigilance that we have seen in the past continues. But I 
appreciated your comment that however much improvement you feel 
we are making, we can still do better. I very much appreciate 
your saying that.
    Let me start out by giving your own background. On numerous 
occasions before this committee and in speeches, you have said 
that as a safety and health professional--and you are one--you 
have one goal, and that is to reduce workplace injuries and 
illnesses and fatalities, and that during your tenure at OSHA, 
that is going to be the agency's main focus.
    Isn't one of OSHA's major tools for reducing exposure and 
the resulting injuries and illnesses and fatalities the 
promulgation--the promulgation--of safety and health standards, 
and isn't the promulgation of standards one of the agency's 
major responsibilities under the Occupational Safety and Health 
Act?
    Mr. Henshaw. Certainly, Senator, that is one of the tools 
that we have is setting appropriate standards and enforcing 
those standards. So that is an appropriate tool, yes.
    Senator Wellstone. Then, why don't you list standard-
setting as one of your top priorities? You have said in written 
testimony that the top priorities are building OSHA's 
leadership, enforcement, outreach and education, and voluntary 
partnerships and programs, but you have not said that one of 
your top priorities is the promulgation of standards. Why not?
    Mr. Henshaw. I think I have said that the execution of our 
regulatory agenda is a top priority within the agency, and that 
is the issue around what we described in the May issue of our 
Regulatory Agenda is what we are going to accomplish, and I 
think that if you look at the same speeches, you will hear me 
say that we are holding our managers accountable for 
accomplishing those endpoints as described in the regulatory 
agenda.
    To me as a manager, that means that that is a primary focus 
certainly for those groups that are involved in developing 
those standards and regulations. They are going to be held 
accountable for achieving those goals described in the 
Regulatory Agenda.
    Senator Wellstone. Let me pursue why I am concerned about 
not listing the promulgation of standards as one of your 
primary objectives, because I think that that is where OSHA has 
been at its best is these standards, which have really led to 
the protection of the work force.
    Let us look at OSHA's regulatory program. With respect to 
your regulatory program, the administration has removed more 
than a dozen regulatory initiative from its regulatory agenda, 
including standards updating permissible exposure limits, 
expanding the chemical process safety management standard to 
cover reactive chemicals, extending the lockout-tagout standard 
to the construction industry and regulating cancer-causing 
chemicals like metal working fluids.
    The development of many other standards has been delayed, 
including standards on hexavalent chromium and silica.
    So instead of focusing on these major hazards, the 
administration has identified the following as its priorities 
for regulation: signs and barricades; translating the exit 
route standard into plain English terms; and an administrative 
rule on changes in State plan regulations.
    Can you tell me how many injuries, illnesses or fatalities 
OSHA estimates they will prevent through the promulgation of 
these standards, and why are these the priorities for the 
administration as opposed to the promulgation of standards 
dealing with the really serious hazards that are out there?
    Mr. Henshaw. Senator, I think you are referring to that in 
the last l few months, we have released four final rules, one 
of which is the signs and barricades that you mentioned. And I 
am sure that you are aware that we still have way too many 
highway fatalities or fatalities of workers in work zones. This 
is a major problem in this country, and it is very critical 
that we get those standards updated.
    The previous standard that OSHA had on the books was in 
1973 which is critically in need of repair and improvement, and 
that is what this direct final rule was all about. I don't know 
what the estimate is as far as how many lives could be saved, 
but certainly we are talking about a serious fatality risk in 
work zones in this country, and we think that this standard 
will improve that.
    Senator Wellstone. But my question--listen, you are always 
gracious when you come up here to testify--but with all due 
respect, I do not see how a regulation on signs and barricades 
and the other things I mentioned are more important than 
addressing tuberculosis or the dangers of explosion from 
reactive chemicals or unburdening workers from having to pay 
for their own protective equipment or shielding workers from 
chemicals that cause birth defects, miscarriages, and other 
reproductive health problems.
    Where is the promulgation of standards that deal with these 
major concerns that affect our work force?
    Mr. Henshaw. Senator, some of those are on our regulatory 
agenda. If I might, I would like to just reiterate--you 
mentioned that we had withdrawn several items from the old 
regulatory agenda. The old regulatory agenda had something like 
58 items addressed. We had so many on the regulatory agenda 
that a few of them got lost, and for some reason, we cannot 
find out why they were not recorded in the following 6-month 
period, like in shipyards. We had items in there that were from 
the early 1980's and late 1970's that were not being addressed.
    As a manager, my job is to fine-tune a group of 
professionals to work on issues and resolve those issues. If we 
have too many things on our plate, we get nothing done, so it 
is critical that we pick the right priorities and work on 
those.
    As I mentioned before, the regulatory agenda is what we are 
going to do in the next 12 months, and tuberculosis is on that 
regulatory agenda. Glycol ethers are on that regulatory agenda.
    Senator Wellstone. Well, let me give you a case study just 
to take this line of questioning a little further. Let me focus 
on a minute on the process safety management rule for hazardous 
chemicals.
    A study by the Chemical Safety Board concluded that 66 
workplace deaths and 404 injuries took place in the 5 years 
between 1992 and 1997 that were attributable to reactive 
chemicals and not covered by OSHA's current standard. At the 
end of the last administration and the beginning of this 
administration, OSHA was beginning to consider a rule to deal 
with the gaps in coverage. And the first step was to issue a 
request for public comment--that was the first step--on which 
chemicals not currently covered should be included in how OSHA 
should regulate them. That was in May of 2001.
    In September of 2001, the current PSM rule showed up on the 
now infamous hit list of 57 rules that industry lobbyists 
thought should be eliminated as too burdensome. In December of 
2001, the rulemaking to expand the process safety management 
rule was withdrawn because of resource constraints and other 
priorities--not postponed, not delayed, but withdrawn.
    Did you truly not have the resources to put a notice out to 
the public asking them for their ideas? What could have been 
more important than that? What initiative bumped that 
completely off your agenda? Was it the signs and barricades 
initiative? Was it the translation of exit routes into plain 
English? I do not get these priorities.
    Mr. Henshaw. Senator, the issue is not as simple as just 
issuing a request for information, and I will give you a case-
in-point. It is critical that we look at what is our work load, 
what are our resources, and what can we get done over a period 
of time. And what I do not want to do is waste time.
    The case-in-point is glycol ethers. It is on the regulatory 
agenda, but the last time that that was addressed by OSHA was 
in 1994. Now we have to reinitiate our request for information 
because technology and the processes have changed.
    So what I do not want to do is be premature in requesting 
information, because that information has to be used. If we are 
going to require people to submit the information, and we are 
going to study it, we need to take it to the next step and not 
just let it languish. And the problem now with glycol ether is 
that we have to reinitiate the work. And in any standard, it is 
very critical that they understand how compounds are being 
used, because--this has to be a rifle shot, Senator--we have to 
make sure that we promulgate a standard that is as effective as 
we possibly can make it. That means we have to collect valid 
information, it has to be relevant to today and the industries 
and technologies of today, and then we have got to move forward 
with the promulgation of the right standard.
    So a request for information, while it seems like a simple 
task, the point is that somebody spent a lot of money 
generating the information, and now we have to use it. If we do 
not use it, we have wasted all that time and energy, and I do 
not want to do that in the future.
    Senator Wellstone. You did not know--I do not want to 
belabor the point--but we have this Chemical Safety Board which 
has clear conclusions about deaths and injuries, and then, you 
have the industry that has the hit list, and then, the 
rulemaking to expand the rule is withdrawn. You did not know 
what questions to ask? You are telling me that you did not know 
what questions to ask; is that your position?
    Mr. Henshaw. No, sir, that is not what I said. I said I did 
not want to ask questions and get information that I could not 
use, that I could not take it to the next step, or would be 
wasting time and energy to do that, such as in the case of 
glycol ether.
    Senator Wellstone. If you do not ask the questions and you 
do not go out there, there is no next step. You cut the whole 
process off.
    Mr. Henshaw. No, sir. The regulatory agenda does not mean--
when we took things off the regulatory agenda, it does not mean 
they are not going to be addressed. It just means that in the 
next 12 months, here is what we are going to focus on, here is 
what we have decided will be our priorities.
    We can always argue the priorities. If you want to argue 
the priorities, that is a separate issue. But once we decide 
what our priorities are, then we have got to carry through with 
those items, and the decision was----
    Senator Wellstone. So the priorities--well, there are two 
different questions--so when is this going to be addressed?
    Mr. Henshaw. It is still in our list of things to look at.
    Senator Wellstone. Eighteen months from now?
    Mr. Henshaw. I cannot say precisely when we will address 
that.
    Senator Wellstone. Well, I think this is more important 
than signs and barricades. It is a question of priorities.
    Now, you are highly-qualified safety and health 
professions, with many years of experience dealing with 
occupational safety and health issues in the chemical industry, 
and you served as president of the American Industrial Hygiene 
Association.
    Is it your position as a safety and health professional 
that the current OSHA standards that are on the books are 
sufficient to protect workers from significant risk of harm and 
injury, illness, or death, as OSHA requires?
    Mr. Henshaw. I think there are two parts to that question, 
if I may.
    Senator Wellstone. Certainly.
    Mr. Henshaw. Some of our existing standards are in need of 
revision, and I think that is a fallacy that we have had in the 
past, that once a standard is written, it is forever, and it 
should not be. The reality of the world is that it changes on a 
regular basis, and our standards must be updated to meet those 
realities. That is number one. So our existing standards even 
themselves need to be frequently updated and modified to 
accommodate the world in technology.
    In respect to new issues that have not been addressed by 
the agency, certainly the agency needs to continue to develop 
regulations, but we need to continue to develop those in a way 
that we select the priorities in the proper fashion and we 
execute our obligations when we prepare these standards, that 
we do them in a way that is sustaining, do them in a way that 
produces the effect that we are looking for, which is helping 
to reduce injuries and illness.
    Senator Wellstone. Well, I want to say to you that I 
appreciate your answer--or, I appreciate your position--which 
is, No, Senator, obviously, we do not necessarily have enough 
standards, and it is a matter of our priorities, but I do not 
see anything more important than, again, addressing 
tuberculosis, dangers of explosion from reactive chemicals, 
unburdening workers from having to pay for their own protective 
equipment, shielding workers from chemicals that cause birth 
defects. To me, these should be the priorities now. I do not 
understand what I consider to be the delay.
    Let me ask you about enforcement. I know that you focus on 
the really bad apples, but the number of significant 
enforcement cases has come down in the last couple of years, 
but the total number of egregious enforcement cases has come 
down as well. So if you project out the 2002 numbers, 
inspections in manufacturing are down 16 percent; the number of 
workers covered by your inspections is down 30 percent, 56 
percent for manufacturing; and the number of hours your 
inspectors spend in safety enforcement is down 22 percent; and 
health inspections are down 20 percent.
    So it seems to me that you are spending less time 
protecting fewer workers. Am I wrong about these 2002 numbers 
in terms of the number of inspections going down?
    Mr. Henshaw. The number of inspections is not going down. 
In fact, we are increasing the number of inspections. Now, 
clearly, as a result of the World Trade Center, resources were 
about 3 percent off of our goal----
    Senator Wellstone. Serious inspections. Excuse me. The 
number of serious inspections.
    Mr. Henshaw. The number of serious violations in fact has 
gone up. I do not know what ``serious inspections'' you are 
talking about. But the number of willful violations and serious 
violations has gone up.
    You spoke about significant cases, and the significant case 
is just the arbitrary cut-off of those violations or penalties 
above $100,000. Using that arbitrary cut-off, Senator, those 
are less than it was last year and the year before.
    Senator Wellstone. That is what I was referring to. I am 
looking at your own answers to our questions.
    Mr. Henshaw. Right. And those were significant cases, which 
is an arbitrary cut-off of those cases above $100,000.
    What we do have, however, increasing is that the serious 
and willful violations are up. Senator, I do not use 
significant cases as a goal mainly because it is an arbitrary 
number, and I do not want to drive a performance that drives 
unintended consequences, meaning pushing to get above $100,000 
to meet some sort of expectation.
    Senator Wellstone. OK. I just want to take note, thought, 
for the record in terms of some of the information that I have 
here that the total number of significant cases--that is 
$100,000 or more----
    Mr. Henshaw. Which is an arbitrary cut-off.
    Senator Wellstone. I understand--but by your own figures, 
has gone down each year, and the number of egregious 
enforcement cases conducted by OSHA also has gone down. Is that 
correct?
    Thank you.
    Let me turn to Mr. Lauriski for a moment. I appreciate your 
being here, and also, I am encouraged by your reassurances that 
you have provided today that MSHA is fully committed to 
continuing enforcement of the Mine Act. But I am worried about 
some of the actions that you have taken that I think are going 
to make it difficult to do so, so let me ask you a few 
questions, starting out with dust sampling, because we have 
talked about that before, which is something that I have been 
interested in for a number of years.
    For a number of years, MSHA has sampled for coal dust in 
each mine six times a year. Is it your intention to continue to 
sample six times a year?
    Mr. Lauriski. Senator, it has not been a number of years. 
Up until 1998, the frequency of those samples was four times a 
year, and even prior to that, it was one time a year. I think 
that since 1998 or 1999, the frequency was one to six times a 
year.
    We had a decision that came down called Excel Mining that 
required us to take a re-look at how we were doing our dust 
sampling and the frequency with which we had to do it, 
principally because the court decision required us to not rely 
on multiple samples taken over a single shift for compliance 
purposes, but for us to look at multiple samples taken over 
multiple shifts to determine compliance.
    So in that regard, we did reduce the frequency by which we 
take samples, MSHA, that is, but not the frequency with which 
an operator is obligated to take samples. They still have that 
obligation under the Mine Act. We do our obligation as part of 
our routine fours and twos inspections, and we have made those 
samplings to be consistent with the times that we are onsite to 
do our mandatory inspections.
    Senator Wellstone. Well, I have gone through this before 
about--I am not so reassured by the companies taking their own 
samples, nor the miners. I do not quite understand--how can you 
justify reducing the number of times that you sample for dust 
given the magnitude of the problem of miners not being able to 
see 6 inches in front of them because of coal dust levels?
    Mr. Lauriski. Senator, the number of samples that is 
actually being taken is not less today than it was prior to the 
Excel decision. The frequency with which we take samples as an 
agency has been reduced by just two times per year. However, 
again, there is no less frequency on the part of the operator 
to supply these samples.
    Senator Wellstone. But I am talking about oversight. One of 
the things that we have learned, I believe--this past week, it 
is on the Senate floor--is that we do not ask the accounting 
industry to monitor the accounting industry. It does not work 
out too well. And in the same way, we do not ask this industry 
to monitor. We want oversight. We want MSHA to be there. And 
you play a key role, yet you are reducing the number of times 
that you are sampling for dust.
    Mr. Lauriski. But again, Senator, we are not reducing the 
number of samples being taken over that same period of time. It 
is still the same sample level as it was before; it is just 
that we are not on the site as frequently as we were before 
with dust sampling equipment. We are now matching our sampling 
strategy against the number of times that we are mandated to 
inspect the mines each year.
    So with that, what happens is that it allows us to look at 
those areas that are in most need of our attention, those areas 
where samples exceed the exposure limit, as opposed to sampling 
those areas where there is not an exposure limit exceeded.
    Senator Wellstone. Well, again, the only thing I can tell 
you is that the people who pay the price--the miners--are 
certainly not comfortable with your answer, which is the same 
number of samples, but we are relying on the industry to do 
some of this as opposed to our doing it more times per year. 
And I think we were counting on you, MSHA, to do it. The fact 
that the industry is doing more of the sampling is not the 
answer to the question.
    The coal industry has a long and unpleasant history of coal 
dust sampling fraud. You know that, and I know that. And that 
is the very reason for the agency's strong enforcement role. 
That is what you are supposed to be about. And you cannot say 
it is not a problem because we know it is a problem.
    I am told that as recently as this year, we have seen four 
people convicted of dust fraud in the State of Kentucky, and as 
long as there is one case of fraud, as long as one miner 
continues to suffer from black lung disease, it is the 
obligation of the agency to do all that it can to enforce the 
full extent of the law's coal dust exposure limits. And I will 
tell you that I do not think that reducing from six to four 
times that the agency samples for coal for coal dust is the way 
to accomplish this goal.
    We have a major difference here. You cannot tell me that we 
have not gotten the clearest example of fraud on the part of 
this industry.
    I want to ask you about the metal/nonmetal interim diesel 
particulate rule. Is the interim concentration limit going to 
go into effect as scheduled?
    Mr. Lauriski. Senator, the interim concentration limit 
level has been challenged by several parties to the rule that 
was final last year. The interim standard is due to go into 
effect on the 19th of this month. We are currently in 
negotiation with all the parties to the litigation to determine 
where we are going to be at the 19th. At this point, I cannot 
say whether it will be at the 400 microgram level or not, or 
whether there will be a different level.
    We undertook in this negotiation with the parties, with 
labor, industry, and MSHA, a look at the sampling strategy and 
a look at our ability to sample for particulate matter in an 
adequate manner to determine whether or not the sampling 
equipment that was on the market was capable of determining the 
levels that made a determinant, and that process is wrapping 
up. I hope that before next Friday, we are able to move forward 
and that we will have a final rule, but to sit here and tell 
you that it could be at the 400 microgram level, I cannot do 
that today.
    Senator Wellstone. But you will have an answer within a 
week or so?
    Mr. Lauriski. Yes.
    Senator Wellstone. And let me ask you this. If the rule 
goes into effect, whatever the standard is, will you enforce 
the standard on the date it goes into effect?
    Mr. Lauriski. Yes. That is part of the negotiations that we 
are having with the litigants in terms of how we would 
implement the 400 microgram level. Now, keep in mind this is 
not a permissible exposure limit; it is simply a concentration 
limit that is taken in the mine. So again, that could depend 
upon the negotiations and any settlement which would come out 
of those negotiations between now, and hopefully, again, by the 
time that the limit is scheduled to go into effect.
    Senator Wellstone. If it goes into effect, if the 
regulation is written and is supposed to go into effect on the 
19th, will you go to court on the 19th if no settlement is 
reached?
    Mr. Lauriski. Well, it is already before the courts, and we 
just as recently as this week filed an update with the court 
system, so if there is not successful settlement, then 
obviously, things would be as they were a year ago. but I am 
very optimistic that we are going to reach a settlement with 
the parties in this matter.
    Senator Wellstone. I am not a lawyer, so this a layperson's 
question. I do not understand why part of your answer was--it 
would be one thing to say we are still in negotiation over 
exactly what the standard will be, but then I asked whatever 
the standard is, will you--and I am now thinking about the 
well-being of miners and are you going to start enforcing it 
when it goes into effect. Why do you have to wait until next 
week to tell me whether you are going to enforce the standard 
once it goes into effect?
    Mr. Lauriski. Well, quite frankly, the standard is in 
effect. The only thing that comes about next week is the 
interim concentration limit of diesel particulate. And of 
course, if we do not reach settlement, we are already enforcing 
that part of the rule that went into effect a year ago. The 
only thing that is outstanding, again, is that portion that has 
to do with the interim concentration limits, and again, I am 
going to say that we are hopeful that we will have resolution 
of this issue by next Friday so we will have a rule that is 
complete without challenging the court.
    Senator Wellstone. And I am hopeful that you will, too, and 
I am also hopeful that you will go on record that you will 
enforce that immediately, that the enforcement will not be put 
off.
    Let me go to Martin County Coal. First of all, we know the 
history of it, so I do not know that I need to go over that 
with you. MSHA wrote only two violations for the October 2000 
County Coal impoundment failure, one for not following the 
approved plan to redirect the discharge of the fine slurry 
along the seepage barrier, and one for failing to immediately 
report a significant increase--more than double, as it turns 
out--in water flow from the South Main Portal in September of 
1999.
    Can you explain these inconsistencies?
    Mr. Lauriski. I am not quite sure I understand the 
inconsistencies that you are speaking of, Senator.
    Senator Wellstone. Why only two violations, and that is 
it--and my understanding is that one of them, the fine was 
$110,000. Is that correct?
    Mr. Lauriski. Total.
    Senator Wellstone. Total. For the most massive ecological 
disaster ever experienced in the Southeast, and the total fine 
was $110,000. Don't you think the penalty should have been 
increased?
    Mr. Lauriski. Senator, we assessed the penalty at the 
maximum allowed by statute.
    Senator Wellstone. That is all you could do by statute?
    Mr. Lauriski. That is correct.
    Senator Wellstone. Then, would you agree with me that we 
ought to change that statute and have stiffer penalties?
    Mr. Lauriski. Senator, I----
    Senator Wellstone. Because with your support, I am pleased 
to do that.
    Mr. Lauriski [continuing]. I understand that, and it is 
something I would like to consider, but I would prefer not to 
say today that I am ready to make that determination.
    But I do want to make a correction, however. There were not 
just two violations that were issued to Martin County Coal. 
There was a total of 11. Two were contributory, and the others 
were noncontributory to the incident itself.
    Senator Wellstone. I am focusing on the contributory. My 
understanding is that the State of Kentucky wrote five 
citations, none of which MSHA cited; is that correct?
    Mr. Lauriski. I do not know that, Senator. I can find that 
out for you.
    Senator Wellstone. That would be helpful. And I cannot get 
you on record as to the $110,000 seems to be a pretty flimsy, 
weak fine for the damage that this company did to the people?
    Mr. Lauriski. Well, again, that is the statutory maximum 
that is allowed, and that is what we assessed on these two 
citations.
    Senator Wellstone. Tell me if I am wrong here. It is my 
understanding that the investigating team found clear evidence 
that Martin County Coal knowingly submitted false information 
as part of its plan to reopen the impoundment after the 1994 
failure. They took testimony from one of the people who drew 
the map submitted in 1994, admitting that they knew there was 
not a 70-foot coal barrier, and they took testimony from the 
contractor who built the seals that the plan he followed was 
not the same plan that was submitted and approved by MSHA.
    It is also my understanding that both of these factors 
potentially directly contributed to the impoundment failure, 
yet MSHA did not cite the company for either of these 
violations. Is that correct?
    Mr. Lauriski. My understanding in reviewing the 
investigative report and talking with the investigators is that 
there was a determination made that there was no inaccuracy in 
the mine map itself.
    However, with respect to the seals that were built, there 
was a violation issued to the country as well as to the 
contractor that did built those seals. But it was the opinion 
of the investigation team that even though those seals were 
changed in a design that was different from what the plan 
approved, the seals as they had been changed or as they had 
been approved would not have withstood the massive amount of 
slurry and pressure that would have been placed against them 
after the release of the slurry from the impoundment.
    There was, however, a violation issued on the seal 
construction, but it was not determined to be contributory.
    Senator Wellstone. Wow. Did any member of the original 
investigating team express concern about the findings included 
in the final report?
    Mr. Lauriski. Senator, before I arrived at MSHA, that was 
my understanding, that there was a concern expressed about the 
investigation. Secretary Chao asked for an IG investigation 
which is still ongoing.
    At the time that the report was released, I personally 
spoke with all the investigators and asked them personally if 
any of them had issue with the investigation or the 
investigative report, or if they had any issues with signing 
that report, and with one exception, all of the investigative 
team members agreed with the report's findings and agreed to 
sign it. One individual who had concerns asked me if I would 
consider not having his name on the report and if I would 
consider not having him sign the report, and I told him that 
would be fine.
    Senator Wellstone. Did you express any reluctance to sign 
the report?
    Mr. Lauriski. I did not sign the report.
    Senator Wellstone. You did not sign the report.
    Mr. Lauriski. I did not----
    Senator Wellstone. I am sorry. Did they express any 
reluctance to sign the report?
    Mr. Lauriski. Again, with one exception. I spoke with every 
team member, and every team member that I spoke to, with one 
exception, expressed no reservation about signing the report.
    Senator Wellstone. Was any member of the original 
investigating committee pressured in any way to sign the final 
report?
    Mr. Lauriski. No, sir, not to my knowledge--not by me.
    Senator Wellstone. And you mentioned the investigation now 
going on. It has been nearly 2 years since this happened. There 
is an ongoing IG investigation going on right now, your own 
internal investigation; is that correct?
    Mr. Lauriski. There are actually two. There is the IG 
investigation, and then, I ordered an internal review at the 
same time, or at near the same time, that we released the 
report on Martin County. That would have been in----
    Senator Wellstone. So you have done your own investigation.
    Mr. Lauriski. We are doing our own investigation. It is 
still ongoing. But we are nearly complete.
    Senator Wellstone. And please tell me, can this committee, 
other Members of the Congress, and the citizens most affected 
by this disaster expect a full accounting of what happened?
    Mr. Lauriski. Absolutely. That is the reason for the 
review. The review is to look at MSHA's management processes 
and practices not only with respect to Martin County but with 
respect to how we do these things on a nationwide basis--to 
look at our approval processes for plans, to look at our 
inspections, to look at all of our management of the 
impoundments themselves.
    We are looking at two issues. One is to identify if we have 
weaknesses,and two is to identify if we have strengths. And 
where we have weaknesses, we want to make sure that we make 
corrections to those areas. That is why I ordered this internal 
review.
    Senator Wellstone. Moving to the Jim Walters Resource Mine, 
I am looking at these different--there are 31 citations, and 
one of the citations--I am looking at one of the citations, one 
of 31, for violations that were unabated at the time of the 
mine explosion. This is dated September 18, 2001, 5 days before 
the mine explosion. It says, quote: ``Float coal dust black in 
color was allowed to accumulate in the intake for the future 3-
East belt conveyor. The accumulations were observed on the mine 
floor for a distance of 1,000 feet.'' End of quote.
    Then, there is a column for ``S and S'' and it is checked 
``No.'' What does ``S and S'' mean?
    Mr. Lauriski. It is a designation to describe the 
seriousness of the violations. We call it ``significant and 
substantial,'' which means that it is a violation that has a 
reasonable likelihood to cause reasonably serious injury or 
illness.
    Senator Wellstone. Well, I absolutely do not understand 
this report here. Experts that I have spoken with say that 
1,000 feet of float coal dust in a mine like this is highly 
dangerous. I have never heard anybody say otherwise.
    Do you have any idea why an MSHA inspector would treat this 
as nonS and S?
    Mr. Lauriski. Senator, we are very concerned--no, I do not, 
because I did not see the condition, and the conditions that 
are viewed at the time the citations are issued are what 
determine whether or not an inspector would make that 
designation ``significant and substantial.'' I did not see it, 
so I cannot second-guess perhaps what the inspector saw when he 
issued that particular citation.
    However, one of the things that I mentioned in my testimony 
is that we have ordered a complete internal review about our 
management practices as they did in Martin County with respect 
to Jim Martin Resources and with respect to our management of 
District 11 to see if we were performing our duties in a 
diligent manner that was consistent with the law, and that 
investigation is ongoing.
    Senator Wellstone. You have an ongoing investigation.
    By the way, this form, as you probably know, then, if you 
are doing the investigation, indicates that only one worker was 
affected. Does that sound right to you--1,000 feet of float 
coal dust on the mine floor that affects only one worker?
    Mr. Lauriski. Again, Senator, I do not know what the 
circumstances were at the time the inspector wrote that 
particular violation, and it would be wrong of me to prejudge 
and to place myself in his position when I did not have the 
same opportunity to see the same things he or she saw. I cannot 
do that.
    Senator Wellstone. Can you see any justification--let me 
give you another example. Here is another one on September 14, 
2001. Nine hundred twenty-five feet of float coal dust on the 
mine floor--925 feet--and also, nonS and S affecting only one 
person.
    Another one on September 4, 2001. Six hundred feet of float 
coal dust nonS and S affecting one person.
    Why would this be treated as nonserious?
    Mr. Lauriski. Again, Senator, there are several--there are 
a lot of factors that go into determining the seriousness of a 
violation to categorize it as ``significant and substantial,'' 
and there have to be circumstances that are looked at in 
addition to just the fact that you had float coal dust in this 
instance. The inspectors are trained to look at other issues--
were there sources for ignition? How many people were present 
in the area? All those factors are considered at the time the 
inspector finds the violative condition and issues a citation.
    Given the fact that I was not there, I cannot tell you what 
the conditions were at the time that the inspector saw the 
particular----
    Senator Wellstone. But you were not there on site.
    Mr. Lauriski [continuing]. I did not see what he saw.
    Senator Wellstone. Yes, but you are the head of MSHA.
    Mr. Lauriski. That is correct, and that is, again, one of 
the reasons why I have asked for an internal accounting and 
internal review of our practices and procedures at this mine as 
well as in District 11, to have a better understanding, to know 
whether or not we were managing our processes in accordance 
with the Mine Act.
    Senator Wellstone. The number of persons affected--does 
that have some bearing on the penalty that the company would 
ultimately have to pay?
    Mr. Lauriski. It can, yes.
    Senator Wellstone. Because I see another one--7,000 feet of 
float coal dust, and this one is actually marked ``S and S,'' 
not ``nonS and S,'' but it says only one person was affected.
    I just cannot understand how any inspector could reach this 
conclusion. I am told--look, I am not from Alabama--but I am 
told that Alabama mines are among the most gaseous in the 
country, subject to explosions, and float coal dust is highly 
flammable. And I just do not see how any inspector can say this 
is a nonserious problem.
    There were 31 unabated--I know you are nodding your head so 
you know this--there were 31 unabated violations at this mine 
at the time of the explosion that killed 13 miners. How could 
that have happened?
    Mr. Lauriski. Well, from what we know, they were unabated 
in the sense that we had not issued the termination paper. What 
I do not know is whether or not those conditions had actually 
been corrected by the mine operator. That is part of the review 
that we are undertaking to understand those practices and 
processes.
    And again, I do not have the answers for you to understand 
why the inspector would have allowed 31 violations to go 
unterminated--and I think that is the better term here--
unterminated--for a period of time if the operator had in fact 
corrected those conditions or, if they were not corrected, why 
extensions were not given, or more severe enforcement actions 
were not taken.
    I do not have the answer. That is part of the review that 
we are undertaking that will give us a better understanding of 
what occurred there.
    Senator Wellstone. But as the head of MSHA, you have an 
obligation to make sure that these kinds of conditions are 
abated; correct?
    Mr. Lauriski. That is correct.
    Senator Wellstone. So you are not trying to justify this; 
you are just trying to say that you do not know what happened.
    Mr. Lauriski. No, I am not trying to justify it. I do not 
have a----
    Senator Wellstone. You are just saying you do not know what 
happened.
    Mr. Lauriski. I do not have the facts to understand--again 
I was not there. I cannot determine why they were S and S, why 
they were not S and S. I do not have the facts to understand 
why they may have been left unterminated for a period of time. 
But the review team will give us that information.
    I can tell you that----
    Senator Wellstone. When is this review team going to give 
you this information.
    Mr. Lauriski. Well, we are hoping that by the end of this 
year, we will have that review completed. Just this week, they 
are on site in Alabama, interviewing witnesses--I am sorry--
interviewing our employees with regard to some of these issues. 
They have been reviewing records. This is a very long and 
lengthy process. We have a dedicated team that is assigned to 
this project, and I am confident that they will return a report 
that will give us good information with which we can move 
forward.
    Senator Wellstone. Let me say to you that part of the 
position that you have taken is that you really cannot answer 
this yet because the investigation is not complete, which means 
that you cannot answer a number of these questions. And I know 
you are going to be doing this investigation.
    I am sorely tempted to have this subcommittee--this is an 
oversight hearing, and I think maybe we might do an 
investigative hearing as well and have people come in under 
sworn testimony so that we can try to get to the bottom of it 
with you, because to me, it is just--we had innocent people who 
were killed, and MSHA was supposed to be there, and action was 
not taken, and people died. And I want to get to the bottom of 
it, because I think your mission--and you agree--is critically 
important as it affects people's lives. I feel that way about 
the coal dust. I feel that way about these other conditions. I 
feel that way about the ecological disaster that happened. And 
I think it is time for this committee to get tougher on these 
issues.
    I want to give each of you--and I appreciate, again, both 
of you being here. We have a markup in another room--there 
would be more people here otherwise--and we have other people 
on the floor, but I think it is extremely important for us to 
do this, and I appreciate the responsiveness that both of you 
are here.
    I guess, Mr. Henshaw, our main disagreement may be at the 
moment over the whole question of priorities and the 
promulgation of what standards and how quickly, and that is 
where I take some exception with where you are heading. And it 
does seem to me that whatever your view is, I think the two of 
you obviously, everything you do, you do honestly and you do 
sincerely, and it is what you think is right.
    I think in your case--and you also have the professional 
expertise which I think is extremely important for your job--it 
does trouble me when I think that what I consider to be some 
pretty important standards get on some hit list and all of a 
sudden are wiped out, because I think the consequences of the 
inaction can be tragic.
    I wonder if I could perhaps give each of you if you would 
like a chance to respond. The questions have been tough and 
hard-hitting, and if you want some time just to conclude, and 
if there are some other things you want to say for the record, 
please do so.
    I do want to keep the record open for 2 weeks if that is 
all right with you both. I think other Senators will want to 
submit questions.
    I also want to include with unanimous consent a strong 
statement from Senator Kennedy as part of the record as well.
    [The prepared statement of Senator Kennedy follows:]

                 Prepared Statement of Senator Kennedy

    I commend Senator Wellstone for convening today's hearing 
and for his leadership in standing up for America's workers. As 
I review this Administration's record on protecting worker 
health and safety over the last year and a half, one pattern 
becomes crystal clear. This Administration is imposing a 
terrible burden on America's working families. Time after time, 
the Administration has supported deregulation, weaker 
enforcement, and the rollback of worker protections in favor 
corporations rather than workers. The Administration is rolling 
back, stalling and delaying standards that would protect 
millions of hard-working Americans from dangers on the job.
    The tragic consequence of this Administration's inaction is 
the toll it takes on the safety and health of working people. 
America's working families are paying a tremendous price in I 
injuries and illnesses. Sometimes workers are paying for the 
Administration's indifference with their very lives.
    The record of safety in our nation's mines is dismal. The 
number of on-the-job fatalities has risen each of the last two 
years. Last year, in Alabama, workers suffered the nation's 
worst mining accident in nearly twenty years. This year the 
number of mine fatalities is poised to be even higher than last 
year's unacceptable rate. These are the tragically predictable 
consequence of the backlog of necessary, mine inspections.
    This Administration has consistently failed to enforce 
policies that keep miners safe.
    The Administration's policies on OSHA rulemaking have set 
workplace health and safety back by a decade. Despite years of 
research and extensive consultation with employers, workers and 
medical professionals, this Administration has simply thrown 
pending worker protections overboard. They have delayed or 
rolled back pending standards on tuberculosis, beryllium and 
chemical exposure that would make a huge difference for worker 
safety.
    Consider the Administration's record on ergonomics for 
instance. Ergonomic hazards are the nation's leading cause of 
workplace injury, accounting for more than one-third of all 
workplace injuries. The Administration has failed to offer any 
new ergonomics standard and has failed to deliver on a promised 
comprehensive approach to this problem. Without anymore 
ergonomics standard. American workers have needlessly suffered 
over 1.8 million ergonomics related injuries in the last year 
alone. The Administration has even cut back on the requirements 
on employers to report ergonomic injuries in the workplace.
    The Administration's record is no better when it comes to 
the hazards faced by America's workers from beryllium exposure. 
The health hazards are well documented--so wells documented 
that Congress authorized compensation for workers who are ill 
as a result of beryllium exposure. However, many workers in the 
United States still have no protection against exposure to 
beryllium. OSHA proposed a rule that would have solved this 
problem but this Administration has rolled back that proposed 
rule by issuing, a new request for information. The research is 
already there. America's workers need action on this matter, 
not further delay.
    The Administration's record on occupational exposure to 
tuberculosis is equally dismal. Globally, TB kills almost 3 
million people a year. In the U.S., outbreaks have occurred in 
hospitals, correctional facilities, shelters and nursing homes 
among, other workplace settings. OSHA estimates that more than 
5 million Americans have suffered occupational exposure to TB. 
This Administration again rolled back a proposed role that 
would have protected workers when it comes to TB exposure. 
There is no question that America's workers are put at risk 
every day because of the lack of adequate workplace protections 
from TB.
    Proposed new standards to protect workers from exposure to 
highly hazardous chemical combinations were also undermined by 
this Administration. The U.S. Chemical Safety and Hazard 
Investigation Board has recommended new worker protections and 
these protections should be implemented in a standard for 
dangerous chemical combinations. This glaring gap in our 
workplace health and safety standards has claimed the lives of 
over one hundred workers in recent years. Yet, this 
Administration refuses to take serious action.
    With rule after rule, it's the same story. The facts are 
clear. A rule is proposed to protect worker safety and then 
this Administration rolls it back. The Administration has even 
called for a more than 10% reduction in the number of full-time 
employees who develop worker protection standards. These are 
not the actions of an Administration serious about protecting 
workers.
    American working families deserve better. They deserve 
action. They should not be asked to choose between their jobs 
and their health. Yet that is exactly what they must do every 
day because this Administration refuses to put meaningful 
protections in place. I look forward to the testimony our 
witnesses today and I hope for greater action to protect 
America's workers from the responsible agencies in the future.
    Senator Wellstone. Would either of you care to conclude 
with any remarks? If so, please do so.
    Mr. Henshaw. Senator, I would just briefly--I do share, 
obviously, your concern, and as you know, I am deeply committed 
to accomplishing the result which is reducing fatalities and 
injuries and illnesses. And the issue around the regulatory 
agenda and the priorities, it is true, is a priority issue, but 
I see a lot of issues, and when you talk about the signs and 
barricades, that is a critical issue. If you remember, a few 
months ago, give workers were killed when a truck drove through 
a construction site on a roadside. That is very impactful to me 
and obviously to this Nation when we lose five workers in one 
incident. And whether it is the signs and barricades or other 
contributing factors, the point is that that has got to be a 
focus, and I really want to focus on that.
    So we can argue about whether it should be signs and 
barricades or reactives. That is fine, and we should debate 
that. But I am going to make my best judgments as to where we 
can be the most impactful on reducing fatalities, injuries, and 
illnesses.
    On the issue of our inspection process, I firmly believe 
inspections are a critical part of being successful in our 
mission and goals, and we will continue to foster very strong 
and forceful inspections.
    The measures that I am going to be using which will drive 
the outcome, which is reducing injuries and illnesses and 
fatalities--they will not be arbitrary numbers. They will be 
numbers or measures that will reflect on the outcome that we 
are looking for, which is reducing fatalities, injuries and 
illnesses.
    While it may be that the significant cases are down, which 
is an arbitrary cut-off, the number of serious violations or 
the percent of serious and willful violations, and the average 
penalty per violation, is up. To me, those are indications that 
we are still strong on enforcement.
    So we will continue to drive those kinds of things. We will 
also drive and get into more workplaces. That is why the number 
of our inspections is up and will continue to be up over the 
next few years.
    So I share your concern. We are working very hard, and I am 
committed to accomplishing results.
    Senator Wellstone. Thank you, Mr. Henshaw.
    Mr. Lauriski?
    Mr. Lauriski. Senator, I would just like to conclude by 
saying that I share your concern as well about these accidents, 
and I want you to know that I take this job very seriously, and 
I take what has happened there very seriously. But I think it 
would also be inappropriate for me to offer premature 
information that I do not have. I think it is more appropriate 
to have the facts so that you can know the solutions to the 
problems. Otherwise, we are not getting at the root cause of 
what could or could not be an issue here.
    What I want you to know as well is that we in MSHA take our 
jobs very seriously. We have a staff of dedicated professionals 
who have a great deal of passion for improving the health and 
safety of this Nation's miners. And I think that that is 
evidenced by this chart that is on my left. The Act is having 
the impact that it was designed to have. However, it is also 
very evident that there has to be more than what we have been 
using as our basic mechanism for the past 25 years, and that is 
enforcement. And that is evidenced by the leveling of our 
progress in this industry.
    So we think that there has to be more to the equation than 
just enforcement--not lessening of enforcement but other tools 
that we bring to the mix, tools of education and training, 
tools of technical support and tools of compliance assistance. 
And working together with all of those tools, we think we can 
get this trend in the right direction again.
    I appreciate the opportunity to appear before you today, 
and I appreciate the questions.
    Thank you very much.
    Senator Wellstone. I appreciate both of you being here, and 
we will hear from you again.
    I did not mean to be fidgety. I was just told that I need 
to go and vote in another committee. My thanks, our thanks, the 
committee's thanks, to both of you for being here.
    This hearing is adjourned. Thank you.
    [Additional material follows:]

                          ADDITIONAL MATERIAL

                   Prepared Statement of John Henshaw
    Mr. Chairman, Members of the Subcommittee: Thank you for this 
opportunity to discuss the Occupational Safety and Health 
Administration's (OSHA) commitment to protecting America's workers. I 
would like to discuss the Secretary's and my vision for the Agency and 
the progress OSHA has made in achieving that vision.
    When we look at the state of occupational safety and health in this 
Nation, we have many reasons for optimism. The overall injury/illness 
rate has fallen for eight consecutive years. At 6.1 per 100 workers for 
2000, it is the lowest since the Bureau of Labor Statistics started 
compiling this statistic. Since OSHA's inception in the early 1970's, 
the rate has fallen by about 45 percent. In those industries where OSHA 
has targeted its inspections, such as construction, there have been 
even greater improvements.
    Furthermore, the extent of cooperation between business, labor, and 
OSHA, as measured by the number of partnerships, participation in 
voluntary programs, and amount of compliance assistance activity, also 
is higher than ever and continues to promote worker protection.
    Even though we have accomplished much, there is also a great deal 
left to do. Nearly 6,000 workers suffer fatal accidents each year, and 
in the year 2000 alone, there were 5.7 million injuries and illnesses 
in America's workplaces. Our work is focused on driving down fatalities 
and injuries and illnesses even further.
                  enforcerment acid regulator actions
    Enforcement and regulatory actions are certainly two of our 
important tools for making workplaces even safer. Mr. Chairman, you 
asked me to discuss OSHA's enforcement and regulatory efforts over the 
past year, so let me summarize our work in those areas for you.
    Strong and fair enforcement is an essential part of our mission. 
OSHA is increasing its enforcement efforts in 2002, with more 
inspections. particularly health inspections, and targeting the most 
dangerous workplaces. We plan to conduct 36,400 inspections this year 
and will focus more enforcement on workplaces such as construction and 
other high-hazard industries. Approximately 3,000 of our inspections 
will be in workplaces with the highest injury/illness rates. Employers 
with fourteen or more injuries or illnesses per 100 workers that result 
in lost workdays can anticipate an inspection. Employers who experience 
a rate of between eight and fourteen injuries or illnesses are on a 
secondary list for possible inspection.
    Effective and credible enforcement depends upon the skills, 
training, and expertise of OSHA's compliance officers. To accomplish 
their mission, compliance officers must be experts in workplace 
conditions and the industrial practices in the workplaces they visit. 
To ensure that compliance officers have that expertise. OSHA plans to 
increase the number of compliance officers who are certified by 
professional associations of industrial hygienists and safety 
engineers. Certification will improve respect for compliance officers 
and increase employer and employee trust of OSHA enforcement staff. We 
are also considering recruitment of more compliance officers from the 
private sector and allowing staff to complete internships with 
employers. These steps will strengthen the effectiveness of our 
compliance officers and enable them to become more familiar with the 
workplaces and industries that they inspect.
    OSHA is also setting realistic goals and meeting its objectives for 
our regulatory program. I have spent the past year assessing the 
Agency's capabilities and planning regulatory priorities. OSHA's 
regulatory agenda now reflects an honest appraisal of what we can 
reasonably accomplish and the commitments we plan to meet.
    Publishing ``wish lists'' of regulatory actions that never get 
accomplished harms the Agency's credibility in the eyes of both 
employers and employees. For instance, we recently removed several 
shipyard projects from the Regulatory Agenda. Although some of these 
projects had been on the Agenda for as long as twenty years, they did 
not involve significant changes or improvements to OSHA's shipyard 
standards and were never completed. The current Regulatory Agenda, 
published May 13, 2002, anticipates the publication of two final rules, 
including a revision to the exit routes standard, and seven Notices of 
Proposed Rulemaking, in the next six months.
    Beyond tightening our regulatory agenda. OSHA's standards setting 
will also be strengthened by restructuring the Agency. To accomplish 
our strategic plan goals and program priorities. OSHA has proposed a 
restructuring of the national office's functions. One of the changes is 
to merge OSHA's Directorate of Health Standards and Directorate of 
Safety Standards. to provide a more integrated and efficient approach 
to rulemaking. The merged organization will continue to carry out the 
Department's commitment, consistent with applicable law, to development 
of standards based on sound science, public safety, and considerations 
of economic feasibility.
    Beyond our regulatory and enforcement activities, OSHA is also 
showing critical and measurable leadership in other ways. During the 
nine months of rescue and clean up at the World Trade Center site, we 
protected thousands of workers by overseeing the fitting and 
distribution of more than 130,000 respirators, handing out over 40,000 
pieces of personal protective equipment. and taking more than 6,000 
bulk air samples. We also monitored safety conditions to ensure 
problems were fixed before anyone was hurt. We are pleased to report 
that we helped return thousands of workers safely to their families at 
the close of their exhausting shifts. There were no worker-related 
deaths and only 35 lost time injuries--a remarkably low rate of 2.3 
injuries per 100 workers.
    OSHA also played a central role in addressing hazards associated 
with bioterrorism. Working with the Postal Service, the Centers for 
Disease Control, EPA, and the FBI, OSHA produced a Risk Reduction 
Matrix for anthrax in the workplace. The matrix helps employers assess 
the risk of anthrax exposure in their workplaces and make the timely 
and accurate decisions necessary to protect their workers.
    Another issue in which OSHA is taking the lead is the safety of 
immigrant workers. As this committee has pointed out, many immigrant 
workers lose their lives on the job. OSHA is targeting inspections at 
workplaces such as meatpacking plants and nursing homes where there are 
large numbers of immigrant workers. We have added Spanish-language 
capability to our 1-800 emergency number, have created a Spanish web 
page on our website, and are distributing Spanish-language editions of 
the notices employers are required to post, informing workers of their 
rights. We are also publishing much of our informational material, such 
as All About OSHA. in Spanish and are planning to produce public 
service announcements in Spanish.
    Our outreach to immigrant workers is not limited to Spanish-
speaking workers. Many regions have in place or are developing programs 
and publications to address workers speaking other languages. For 
example, OSHA's Chicago regional office is engaged in a major outreach 
effort to Polish-speaking workers and OSHA's Region IX, in the West, 
maintains an 800 number complaint and technical assistance line that 
provides information in Spanish. Korean and Tagalog.
                  partnerships and voluntary programs
    For OSHA to truly have a beneficial impact in workplaces, we must 
go beyond enforcement and standards setting. OSHA-industry partnerships 
are another valuable means of protecting workers. There are currently 
137 active partnerships between OSHA and the private sector that are 
producing positive results for the Agency's Strategic Partnership 
Program. For instance, we have recently established a partnership with 
the Hispanic Contractors Association. HCA has agreed to work with us in 
identifying and distributing safety and health information in Spanish, 
helping us to reach Spanish-speaking employers and employees and 
improve safety and health.
    We also are forming partnerships around our effort to address 
musculoskeletal disorders. Several industry and union groups have 
agreed to work with us to develop industry-specific guidelines for 
nursing homes, poultry processing plants and grocery stores. We have 
also signed an agreement with the printing and graphic arts industry to 
focus on outreach, training and education on best practices in 
ergonomics.
    In January, OSHA's Boston Area Office formed a partnership with 
Local 76 of the International Association of Bridge, Structural and 
Ornamental Iron Workers and the Capco Steel Corporation, which is 
building a new convention center in that city. Parts of the agreement 
that will help protect workers include: a comprehensive safety plan, 
site-specific training for all workers, daily monitoring by the 
contractor's safety officer, and designation of an employee as labor 
safety liaison for safety and health complaints.
    Last October, OSHA teamed up with the National Association of 
Minority Contractors to ensure the safety of workers building the 
Georgia World Congress Center Phase IV expansion project. The agreement 
also calls for Georgia-wide implementation of safety and health 
programs to address the most common construction-site hazards.
    In Chicago, OSHA signed a regional partnership with an association 
of telecommunication tower erectors under which all member employers 
would follow safebuilding practices such as having a safety and health 
monitor on-site at all times, and a safety and health program in place. 
Tower erectors participating in the partnership will receive focused 
inspections and could receive reduced penalties in appropriate cases.
    OSHA's Voluntary Protection Programs (VPP) continue to be a very 
effective way of reducing injuries and illnesses. This summer we 
celebrate the 20th anniversary of the VPP.
    More than 800 companies participate in Federal or State OSHA VPP 
with injury/illness rates that are about one-half the average for their 
industries and safety and health practices that go beyond OSHA's 
requirements for protecting their workforces. We intend to increase the 
number of VPP participants by 12 percent this year and to continue 
using VPP firms to mentor smaller businesses that need assistance in 
identifying and eliminating workplace hazards.
    Another voluntary program involving the private sector in reducing 
workplace hazards rates is the Safety and Health Achievement 
Recognition Program (SHARP). Employers who receive a voluntary on-site 
consultation visit from a State consultant program may apply for SHARP. 
To participate, the employer must agree to abate any violations found 
by the consultant and to institute a safety and health program. In 
return, OSHA exempts the employer from scheduled inspections for one 
year. The SHARP program will grow by about five percent this year.
             compliance assistance, education, and outreach
    OSHA is expanding outreach efforts to help employers and employees 
understand and comply with its regulations. For instance, following the 
release of the new recordkeeping regulation, OSHA placed information 
about the rule on its website, www.osha.gov, conducted training 
sessions via satellite, and worked with trade associations and labor 
groups to enhance awareness of the new rule. By the end of this year, 
more than 15,000 people will have viewed the satellite training. which 
also is available for download from OSHA's website. In addition, for 
workers and employers who do not have access to the web, more than 
25,000 packets of printed material about the recordkeeping rule have 
been distributed. Providing small employers with information about 
recordkeeping also is the initial focus of a new partnership between 
the Association of Small Business Development Centers and the 
Department of Labor.
    OSHA's website has proven to be a valuable outreach mechanism by 
providing extensive technical links to the Agency's documents, 
regulations, and interpretations, and to electronic interactive tools 
that help educate employers and employees about workplace hazards. 
These tools include free interactive e-CATS and expert advisors that 
help employers determine what requirements apply to their workplaces, 
analyze specific site conditions, and develop appropriate plans for 
eliminating hazards. For example, OSHA is developing an evacuation e-
tool to help employers comply with standards that relate to workplace 
emergencies and evacuation procedures. The Department, including OSHA, 
will be working closely with the Small Business Administration to 
deploy this tool as part of the President's Business Compliance One-
Stop initiative. Business Compliance One-Stop is a single point of 
service web portal designed to help businesses find, understand, and 
comply with pertinent laws and regulations at all levels of government.
    OSHA's field offices provide additional direct assistance to the 
regulated community. All of OSHA's 67 local offices now have a 
compliance assistance specialist who provides frontline advice, 
training, education, and outreach to the local community. The 
specialists make presentations to employer and worker organizations, 
respond to requests for assistance from community and faith-based 
groups, and alert the public to other forms of assistance such as State 
consultation offices.
    As part of OSHA's implementation of the compliance assistance 
initiatives announced by the Secretary in June before the National 
Federation of Independent Businesses, OSHA is, for the first time, 
establishing an office that will serve as a dedicated one-stop resource 
for the small business community. This Office will be staffed by 
personnel who have expertise in small business issues and a commitment 
to assisting small employers with occupational safety and health 
matters. More than 94 percent of U.S. establishments employ fewer than 
50 workers. It is important that we reach out to employers who may not 
have the resources to hire health and safety experts.
    In addition, OSHA works closely with the Small Business 
Administration's Office of Advocacy and the small business community 
during the rulemaking process, consistent with the Small Business 
Regulatory Enforcement Fairness Act.
    In addressing workplace hazards, OSHA will sometimes use guidelines 
or Hazard Information Bulletins when these tools can expeditiously and 
effectively protect workers. For example, OSHA recently issued a 
bulletin on how to prevent exposure to beryllium in dental labs. It 
recommends engineering controls, work practices, training, personal 
protective equipment, and housekeeping procedures to reduce beryllium 
exposure.
    OSHA's Training Institute, located near Chicago, is regarded as one 
of the leading safety and health educational facilities in the world. 
The Institute trains Federal and State compliance officers and 
consultants and, when space is available, offers training to the 
private sector. To leverage the facility's resources and allow 
thousands of private sector trainees to benefit from the training. OSHA 
established an outreach-training program. Individuals who complete a 
one-week trainer course are then authorized to teach 10-hour and 30-
hour courses in construction and general industry standards. We have 
also established an on-line outreach-training program that is available 
through colleges funded by OSHA and the Association of General 
Contractors. During the past three years, more than 600,000 students 
have received training through the outreach program.
    OSHA is inaugurating an innovative training grants program that 
differs from the program of the past. The new program will provide 
short-term grants to a broader range of nonprofit grantees, enabling 
them to train employees and small businesses in selected occupational 
safety and health topics, including homeland security. One of the goals 
for the new Grants program will be to develop and pilot test safety and 
health training materials that will be available on the Internet, 
allowing a larger audience to benefit from them.
    Employers and workers should have no doubt about OSHA's commitment 
to enforcing the Occupational Safety and Health Act. At the same time, 
the regulated community should know that OSHA will provide them with 
the knowledge and tools needed to comply with the law. The vast 
majority of employers take their responsibility to safeguard their 
workforce very seriously. Their commitment is reflected in the 
reduction in the injury/illness rates and the increased cooperation 
between OSHA and the Nation's employers. For those who neglect this 
responsibility there are consequences, as OSHA does not hesitate to use 
its enforcement authority. However, OSHA's mission is not only to issue 
citations. Whenever we enter a workplace, whether as inspectors or as 
providers of compliance assistance, it is imperative that we provide 
services that will help lead to a safer workplace. Because when OSHA 
truly helps employers and their employees, the impact extends beyond 
the confines of the workplace to the overall health and welfare of the 
community. That is the Secretary's and my goal, to ensure that OSHA 
makes a difference where it counts-in the lives of every worker in 
America.
                Prepared Statement of David D. Lauriski
    Mr. Chairman and Members of the Committee: I am pleased to appear 
before you today to discuss the ongoing efforts of the Mine Safety and 
Health Administration (MSHA) to promote miners' safety and health. When 
I appeared before the full Committee. I talked about my meetings with 
miners and operators, representatives of industry and labor 
organizations, State Grant representatives, and many other members of 
the mining community. These are our stakeholders. I wanted to hear 
first hand from everyone about their safety and health issues and 
concerns. Today, I am able to tell you about the outcome of those 
meetings and the management plan we have developed to guide the Agency 
as we work to improve miners' safety and health.
    I believe it is vitally important to establish rigorous goals. The 
President has set government-wide management goals we are working to 
accomplish. Secretary Chao has established a strategic plan for the 
Department of Labor that sets out four goals, one of which is to foster 
quality workplaces that are safe, healthy, and fair. And I have 
challenged our own staff and our stakeholders to work together to meet 
ambitious, but achievable, goals. Last year, we set meaningful and 
measurable safety goals to reduce mining industry fatalities and to 
reduce the non-fatal days lost injury rate. I am happy to report that, 
in 2001, the toll of mining deaths in this country was the lowest ever 
recorded.
    We have also set health goals to reduce coal mine dust and silica 
samples that indicate overexposure and to reduce noise levels to below 
a level which would trigger a citation. And we have set goals for our 
own internal Agency performance--to establish MSHA as a model 
workplace. These goals address MSHA employee injury and illness claims, 
our injury incidence rate, and our workers' compensation costs. I am 
committed to doing everything we can to meet, or exceed, all of the 
above goals.
    This year, the number of fatalities and the non-fatal injury rates 
began to rise compared to the same time last year. January was 
especially disappointing and we knew we had to keep that month's 
increase in fatalities from becoming a trend. We began a ``Focus on 
Safe Work'' initiative. We sent hundreds of MSHA personnel out to all 
coal and metal and nonmetal mining operations to speak with workers and 
supervisors about the fatalities that had occurred. We visited nearly 
10,000 mine sites and spoke with nearly 150,000 miners, distributing 
materials and focusing on the unique hazards at particular mines.
    While the mining industry has made significant and laudable 
progress in reducing injuries and fatalities in the past century, 
beginning in the mid-1990's, there has been no further significant 
reduction in fatal accident rates. We had reached a plateau and we 
needed new ideas and methods to get to the next level in safety and 
health. Some have coined this the ``Next Step to Zero.'' The industry 
has increased productivity and improved technology, yet the Agency has 
not significantly changed its business strategy since enactment of the 
Mine Safety and Health Act in 1977. During my meetings with 
stakeholders, I heard concern about MSHA's one-dimensional approach: 
the Agency has primarily emphasized the enforcement mechanisms embodied 
in the Act--focusing on physical conditions in the workplace. The Act, 
however, provides us with a broad range of tools, such as education and 
training--which includes compliance assistance--and technical support, 
in addition to enforcement. I believe that these additional tools will 
lead us to the next level of improved safety performance.
    MSHA staff reached out to hundreds of stakeholders, following my 
own initial meetings with them. These stakeholders included mine 
operators, miners, equipment manufacturers, and others. Following our 
meetings with stakeholders, we studied their comments and suggestions. 
They said they want us to be more proactive. This is just what the 
Secretary has asked all of the Department of Labor to do--to use tools 
that are preventative rather than reactive.
    Based on the input from our stakeholders, we devised a management 
plan that will meet the challenges of the 21st Century and help move 
the mining industry to a new level of safety and health. The plan 
focuses on more collaboration with stakeholders, assistance to the 
industry in preventing accidents and illnesses, and improvements in our 
internal practices to enhance mine safety and health performance. I 
took this plan back to our stakeholders with the challenge for them to 
work with us to get to the next level of safety--to take that next step 
to zero. And I asked for their commitment to work collectively to meet 
the goals I spoke of earlier. To this, they have all agreed.
                              enforcement
    MSHA will continue to enforce the Act and meet its mandate for four 
inspections per year at each underground mine and two inspections per 
year at each surface mine. I want to emphasize that there will be no 
less enforcement. Our efforts will strike a healthy balance between 
enforcement, education and training, technical support, and compliance 
assistance. Enforcement will be more focused on problem areas. Using 
mine profiles, our safety, health, and compliance specialists will 
concentrate on those areas or activities that are more likely to 
produce accidents that cause injuries or create health problems. We are 
improving training for the specialists to increase their capabilities 
and improve consistency. When they visit mines, they are becoming more 
prepared to focus on overall safety and health matters and identify 
system weaknesses that may lead to accidents. These weaknesses may be 
violations of existing regulations or weaknesses not covered by 
regulations, either of which could lead to an injury or illness.
    Since we began our compliance assistance efforts last year, some 
skeptics have said that we cannot increase compliance assistance 
without lessening enforcement. I respectfully disagree. As you can see 
in this chart, there was an increase in the number of citations and 
orders we issued (five and one-third percent, to be exact) from 2000 to 
2001. This increase cannot be attributed solely to a rise in the number 
of mines because we know that there was only a one and one-third 
percent increase in the number of mines during the same period.
    Mr. Chairman, I use this statistic advisedly to show that MSHA is 
committed to, and will continue its commitment to, enforcement. But, 
MSHA's principal objective is not to issue citations--it is to reduce 
fatalities and injuries. We do not believe that the number of citations 
issued should become the measure of effectiveness in achieving our 
objective.
                         training and education
    Our safety and health compliance specialists are dedicated to mine 
safety and health. They are highly trained professionals. Many have 
received professional certification in their field and more are working 
toward certification. We are revamping our internal training program to 
strengthen our process, to correct any existing weaknesses or gaps, 
and, most importantly, to further support our own staffs health and 
safety skill sets.
    Our stakeholders, from the individual miner at the mine to the CEO 
of a company, have told us that training for the mining industry is 
crucial to the success of our program to reduce accidents and 
illnesses. We are responding to their call for more user-friendly 
training materials for mine operators and miners. They also called for 
more mine site training where safe practices related to specific 
problems can be demonstrated. Our safety and health compliance 
specialists are now providing such training when they uncover system 
deficiencies at mines. We are also exploring innovative approaches to 
delivering training, such as web-based learning, DVDs, and the use of 
simulation devices.
    Secretary Chao recently announced a major new compliance assistance 
initiative to help employers better understand and meet their 
responsibilities to protect workers. We know that the vast majority of 
mine operators want to comply but are often hampered by the volume and 
complexity of the regulations. If we are to get to the next level of 
safety, we have to make mine operators our allies and give them the 
help they need, not just to comply with regulations, but to have a 
broader view of how to identify and prevent hazards, and the importance 
of compliance. We need partnerships where we share abilities and 
information. For example, we are developing materials on ``Best 
Practices'' culled from industry, labor, academia, and MSHA experience 
for use at all mines, but most importantly to assist mines with poor 
performance or limited resources.
    In support of the Administration's initiative, we in MSHA have 
developed a Compliance Assistance Plan that sets out the specific steps 
we are taking to improve our outreach to mine operators and miners. 
Compliance assistance can mean different things to different people. We 
use the term broadly to identify concepts and accident prevention 
activities such as education and training, accident and violation 
analysis, hazard identification. root cause analysis, technical 
support, and access to information. Access to information means the 
information is readable, easily understood, and written in plain 
language the reader understands--in other words, ``user-friendly''. 
Because we know that there are increasing numbers of Spanish-speaking 
workers in the mining industry, we have translated numerous ``best 
practices'' cards, student and instructor guides, entire training 
programs, and handout materials. We will very shortly make available 
all materials on our web site in Spanish.
    Our web site, www.msha.gov, provides access to a multitude of 
resources for compliance assistance. We have posted a list of the 20 
standards most often cited by major commodity and mining type and are 
beginning to post best practices information for each of those. On the 
web site, miners and mine operators can find safety, tips, accident 
investigation reports, hazard alerts and bulletins, and ``single 
source'' pages. These pages give the user access to all documents and 
resources related to a particular standard, especially new ones. It 
also provides access to MSHA's Data Retrieval System which permits 
miners, operators and other interested parties to retrieve mine 
overviews, accident histories, violation histories, MSHA dust sampling 
results, operator dust sampling results, and employment/production 
data. More reports will be added to this system as time progresses.
    Compliance assistance is always needed when new regulations are 
issued. I believe that the assistance should be rendered before the 
regulation becomes effective so that everyone is aware of their 
obligations and knows how to comply. Just last month we issued a new 
final rule on hazard communication. It will take effect on September 
23, 2002 for mines with more than five miners. Prior to that date, we 
will hold 15 National Roll Out Meetings and about 100 supplemental 
local meetings to give each of those mine operators the opportunity to 
learn how to comply with the rule. The rule will become effective on 
March 21, 2003 for mines with five or fewer miners. We are preparing to 
provide on-site compliance assistance to those mines prior to that 
date.
                              small mines
    When we set the effective date of the hazard communication rule, we 
specifically considered the impact on small mines. Operators of small 
mines face unique challenges in protecting their workers. In the metal 
and nonmetal mining industry, about one-half of all mines employ five 
or fewer miners. In the coal industry. about one-fourth employ five or 
fewer miners. Small mines typically have fewer resources to devote to 
safety and health and often lack the expertise to implement accident 
prevention programs. Small mines have higher fatality rates. In 
calendar year 2000, mines with five or fewer employees had a fatal 
incidence rate four times greater than the rate at operations employing 
20 or more. To bring small mines to the next level of safety, we are 
developing a small mine initiative. We are establishing an Office of 
Small Mine Health and Safety in our Directorate of Educational Policy 
and Development. The Office will coordinate a national program to 
assure compliance at small mines and to give compliance assistance. The 
staff will determine the special needs of small mine operators and 
assist in development of programs to address those needs.
                              regulations
    When developing regulations, we assess the impact of the 
regulations on all mines, and on small operators in particular. We are 
reviewing existing regulations to determine applicability to current 
mining practices and to identify those that create undue burden on 
small mine operators. Let me give you an example of what I am talking 
about.
    I spoke with a mine operator in the bluestone industry who was the 
only miner at his operation located in the back yard of his home. 
MSHA's rules require that each mine have a stretcher to be used to 
transport injured miners. He asked me why he had to have a stretcher if 
there was no one to carry him out on the stretcher. My answer to him 
was that this was a prime example of a well-intentioned rule that was 
not flexible and which needs to be reassessed to allow alternate 
methods of complying with the intent of the rule. This is but one 
example where a one-size rule does not ``fit all''.
    MSHA has published several important final rules recently. The 
hazard communication rule, an information and training rule, will 
reduce injuries and illnesses related to chemicals in the mining 
industry by increasing miners' and mine operators' awareness of 
chemical hazards. The high-voltage longwall rule allows a mine to use 
current technology without the need to petition the Agency for a 
modification of a standard. This rule recognizes that advanced 
technology, already in widespread use in the mining industry. can be 
used safely when it meets new requirements for the design, 
construction, installation, use and maintenance of high-voltage 
longwall equipment and associated cables.
    When I appeared before the full Committee, we discussed the Office 
of the Inspector General's recommendation that we take regulatory 
action on asbestos in three areas. They recommended that we lower the 
existing permissible exposure limit for asbestos, change our analytical 
method to quantify and identify fibers in our asbestos samples, and 
address take-home contamination from asbestos. Subsequent to that 
hearing, we issued an Advance Notice of Proposed Rulemaking in March 
2002 requesting information and data from the public to assist us in 
our deliberations on these three issues. The last of seven public 
meetings on this issue was held on June 20. We also solicited written 
comments and the public comment period just closed on July 9, 2002. We 
will use the input obtained at these meetings, as well as the written 
comments, to assist us as we move forward in our decision-making 
process.
    We will continue our work on health rules that will control 
respirable coal mine dust. These rules would require the mine operator 
to verify the effectiveness of their mine ventilation plan to control 
respirable coal dust under typical mining conditions and to make 
adjustments as necessary. We anticipate proposing a rule that would 
allow us to accept testing and evaluation of certain mine equipment by 
independent laboratories. Our proposed rule on the use of belt entry 
ventilation for coal mines recognizes that improved technology, such as 
new atmospheric monitoring systems, makes it possible to safely use 
this type of ventilation system. We are looking carefully at ways we 
might provide flexibility in our current rules that would encourage 
mine operators to increase the number and quality of mine rescue teams. 
These teams are critical in life-threatening emergencies underground.
                           technical support
    While mine operators provide rescue teams, MSHA gives technical 
assistance to the operators during mine emergencies. That is just one 
of the many ways we give technical assistance. We have on staff experts 
on ventilation, roof support, electricity, ground stability, structural 
analysis, impoundment stability. mine fires and explosions, and 
chemical exposure. These people are creating partnerships with other 
government agencies, equipment manufacturers, mining companies, and 
trade and labor organizations to more effectively identify and evaluate 
technological solutions to mining hazards. We are also identifying new 
technologies to address emerging hazards.
    In conclusion, Mr. Chairman, when I arrived at MSHA I found very 
competent staff who care deeply about the safety and health of miners. 
With this expert resource, we needed to examine our way of business and 
look for new ways to use our existing tools to get to the next level of 
improved safety and health performance. I have just outlined some of 
those for you. I am confident that, working with our stakeholders. we 
can achieve our goals.
    Mr. Chairman, other members of the Committee, that concludes my 
prepared remarks. I would be happy to answer any questions.
    U.S. Chemical Safety and Hazard Investigation Board (CSB) Staff 
                       Findings: Reactive Hazards
                        principal study findings
    1. The limited data analyzed by CSB include 167 serious incidents 
in the U.S. involving uncontrolled chemical reactivity occurring from 
1980 to June 2001. Forty-eight of these incidents resulted in a total 
of 108 fatalities. The data include an average of six injury-related 
incidents per year, resulting in an average of five fatalities per 
year.
    2. About 50 of the 167 incidents affected the public.
    3. Over 50 percent of the 167 incidents involved chemicals not 
covered by existing Occupational Safety and Health Administration 
(OSHA) or Environmental Protection Agency (EPA) process safety 
regulations.
    4. Approximately 60 percent of the 167 incidents involved chemicals 
that are either not rated by the National Fire Protection Association 
(NFPA) or have ``no special hazard'' (NFPA ``0'').
    5. For the purpose of the OSHA PSM regulation, NFPA instability 
ratings have the following limitations with respect to identifying 
reactive hazards:
    They were designed for initial emergency response purposes, not for 
application to chemical process safety.
    They address inherent instability only, not reactivity with other 
chemical substances--with the exception of water--or chemical behavior 
under process conditions.
    NFPA Standard 49--on which the OSHA PSM-listed highly reactive 
chemicals are based--covers only 325 chemical substances, a small 
percentage of the chemicals used in industry.
    The ratings were established by a system that relies, in part, on 
subjective criteria and judgment.
    6. Reactive hazards are diverse in nature. Data analyzed by CSB 
demonstrate this diversity because the incidents involve:
    Over 40 different chemical classes (i.e., acids, bases, monomers, 
oxidizers, etc.), with no single or few dominating classes.
    Several types of hazardous chemical reactivity, with 36 percent 
attributed to chemical incompatibility. 35 percent to runaway 
reactions, and 10 percent to impact- or thermally-sensitive materials.
    A diverse range of chemical process equipment-including reaction 
vessels, storage tanks, separation equipment, and transfer equipment. 
Storage and process equipment (excluding chemical reaction vessels) 
account for over 65 percent of the equipment involved; chemical 
reaction vessels account for only 25 percent.
    7. There is no single or combination of data sources that contains 
the data needed to adequately understand root causes and lessons 
learned from reactive incidents or for other process safety incidents.
    8. Incident data collected by OSHA and EPA provide no functional 
capability to track the occurrence of reactive incidents with serious 
worker or public impacts. Although limited, such data are a valuable 
resource for analyzing incident trends and targeting prevention actions 
at a national level.
    9. It is difficult to identify causes and lessons learned in 
existing sources of process safety incident data because industry 
associations, government agencies, and academia generally do not 
collect this information. It was reported in only 20 percent of the 167 
incidents. However, more than 60 percent of reactive incidents, in 
which some causal information was available, involved inadequate 
practices for identifying hazards or conducting process hazard 
evaluations; nearly 50 percent involved inadequate procedures for 
storage, handling, or processing of chemicals.
    10. Over 90 percent of the incidents analyzed by CSB involved 
reactive hazards that are documented in literature available to the 
chemical processing industry.
    11. Although several computerized tools and literature resources 
are available to identify reactive hazards, surveyed companies do not 
generally use them. In some cases these tools provide an efficient 
means to identify certain reactive hazards without haying to conduct 
chemical testing.
    12. Surveyed companies share material safety data of a general 
nature with industry for most chemicals and share good handling 
practices for some. This typically does not include detailed reactive 
chemical test data, such as thermal stability data, which can be 
valuable in identifying reactive hazards.
    13. Approximately 70 percent of the 167 incidents occurred in the 
chemical manufacturing industry. Thirty percent involved a variety of 
industrial activities that store, handle, or use chemicals in bulk 
quantities.
    14. There is currently only limited guidance available to industry 
through professional societies or trade associations that addresses the 
management of reactive hazards throughout the life cycle of a chemical 
manufacturing process. There are significant gaps in guidance available 
on the following topics:
    Unique aspects of reactive hazards during process hazards analysis, 
such as the need for reactive chemical test data, and methods to 
identify and evaluate worst case scenarios involving uncontrolled 
reactivity.
    Integration of reactive hazard information into process safety 
information, operating procedures, training, and communication 
practices.
    Review of the impact on reactive hazards due to proposed changes to 
the process.
    Concise guidance targeted at companies engaged primarily in the 
bulk storage, handling, and use of chemicals to prevent the inadvertent 
mixing of incompatible substances.
                          general conclusions
    1. Reactive incidents are a significant problem in the context of 
chemical process safety as evidenced by the number and severity, of 
incidents.
    2. The OSHA PSM standard has significant gaps in coverage of 
reactive hazards because coverage is based on a limited list of 
individual chemicals with inherently reactive properties.
    3. NFPA instability ratings are inappropriate as the sole basis for 
determining coverage of reactive hazards in the OSHA PSM standard 
because of the significant limitations of the system with respect to 
identifying important reactive hazards.
    4. There are significant gaps in coverage of reactive hazards in. 
EPA's Chemical Accident Prevention Requirements (40 CFR 68) because EPA 
has not identified a technical basis for determining what reactive 
hazards should be covered by the rule.
    5. Because of the diverse nature of reactive hazards, improving 
reactive chemical process safety management requires regulators and 
industry to address the hazards resulting from combinations of 
chemicals and process-specific conditions rather than focus exclusively 
on the inherent properties of individual chemicals.
    6. Given the diversity of the reactive hazards, the prevention of 
reactive incidents can only be accomplished through enhanced regulatory 
and non-regulatory programs.
    7. Existing knowledge of reactive hazards is not being utilized to 
its fullest extent. There is no mechanism to effectively share reactive 
chemical test data and lessons learned from previous reactive incidents 
throughout industry; some of this knowledge is contained in generally 
available resources for identifying reactive hazards, but it is not 
widely used.
    8. Reactive incidents are not unique to the chemical manufacturing 
industry. They also occur in many other industries where chemicals are 
stored, handled, or used.
    9. Current good practice guidelines for chemical manufacturers and 
users are neither complete nor explicit on how to effectively manage 
reactive hazards throughout the life cycle of a chemical manufacturing 
process.
                            study background
    The capability of chemical substances to undergo reactions, or 
transformations in their structure, is central to the chemical 
processing industry. Chemical reactions allow for a diversity of 
manufactured products; however, chemical reactivity can lead to 
significant hazards if not properly understood and controlled. 
Reactivity is not necessarily an intrinsic property of a chemical 
substance. The hazards associated with reactivity are critically 
related to process-specific factors, such as operating temperatures, 
pressures, quantities handled, chemical concentrations and the presence 
of other substances, or impurities with catalytic effects.
    Safely conducting chemical reactions is a core competency of the 
chemical manufacturing industry. However, chemical reactions can 
rapidly release large quantities of heat, energy, and gaseous 
byproducts. Uncontrolled reactions have led to serious explosions, 
fires, and toxic emissions.
    Incidents involving uncontrolled chemical reactions occur 
throughout industry. The impacts may be severe in terms of harm to 
people, damage to physical property, and impact on the environment. 
Recent incidents across the United States underscore the necessity of 
carefully managing reactive chemical process safety.
    A variety of legal requirements and regulations govern reactive 
chemical process safety. These include regulations from the 
Occupational Safety and Health Administration (OSHA) and the U.S. 
Environmental Protection Agency (EPA).
    OSHA develops and enforces standards to protect employees from 
workplace hazards. In the Clean Air Act Amendments (CAAA) of 1990, 
Congress required OSHA to promulgate a standard to protect employees 
from hazards associated with releases of highly hazardous chemicals, 
including reactive chemicals. In 1992, OSHA promulgated its Process 
Safety Management (PSM) standard in response to this requirement. The 
standard covers processes containing individually listed chemicals that 
present a range of hazards, including reactivity, as well as a class of 
flammable chemicals. Reactive chemicals were selected from a list of 
chemicals rated by the National Fire Protection Association (NFPA) 
because of their instability rating of ``3'' or ``4'' (on a scale of 0 
to 4).
    EPA was required by the CAAA to develop regulations to prevent the 
accidental release of substances that could have serious effects to the 
public or the environment. In 1996 EPA promulgated its Accidental 
Release Prevention Requirements in response to the congressional 
mandate, and the requirements are similar to those of those PSM 
standard. For the purposes of this regulation. EPA identified covered 
substances based toxicity and flammability, but not on chemical 
reactivity.
    Several voluntary industry initiatives have been undertaken to 
provide guidance on chemical process safety, including reactive 
hazards. These include industry consensus standards such as those from 
NFPA; and good practice guidelines from the Center for Chemical Process 
Safety (CCPS), the American Chemistry Council (ACC), the Synthetic 
Organic Chemical Manufacturers Association (SOCMA), and the National 
Association of Chemical Distributors (NACD). CCPS is an organization 
sponsored by manufacturers, government, and academia that has produced 
recognized industry guidance since 1985 in the area of process safety 
technology and management. ACC and SOCMA are chemical industry 
associations; each having programs to promote good practices among 
their member companies in the area of chemical process safety. 
Similarly, NACD is an association of chemical distributor companies 
which promotes a good distribution practices and dissemination of 
information to end-use customers on the proper handling of chemical 
products.
    This investigation by the U.S. Chemical Safety and Hazard 
Investigation Board (CSB) examines chemical process safety in the 
United States--specifically, hazardous chemical reactivity. The 
objectives of this hazard investigation are to:
    Evaluate the impacts of reactive incidents.
    Examine how OSHA, and EPA authorities and regulations currently 
address reactive hazards. Within this context, analyze the 
appropriateness of and consider alternatives to reliance on the NFPA 
instability rating system to define reactive substances covered under 
OSHA process safety management regulations.
    Examine how industry and other private sector organizations 
effectively address reactive hazards through non-regulatory standards 
and guidance.
    Determine the differences, if any, between large/medium/small 
companies with regard to their policies, practices, in-house research, 
testing, and process engineering related to the prevention of 
uncontrolled chemical reactions.
    Develop recommendations for reducing the number and severity of 
reactive incidents.
    CSB completed the following tasks to accomplish the hazard 
investigation objectives:
    Analyzed reactive incidents by collecting and reviewing available 
data.
    Surveyed current reactive hazard management practices in industry.
    Visited companies to observe reactive hazard management practices.
    Analyzed regulatory coverage of reactive hazards.
    Met with stakeholders to discuss the problem and approaches to 
improve reactive chemical process safety.
    The data analysis included evaluating the number, impact, profile, 
and causes of reactive incidents. Since there is no comprehensive 
repository of chemical incident data, CSB examined more than 40 data 
sources (e.g., industry and governmental databases and guidance 
documents: safety/loss prevention texts and journals; and industry 
association, professional society, insurance, and academic 
newsletters). The search criteria for the CSB data collection focused 
on incidents where the primary cause was related to chemical 
reactivity. For the purposes of this investigation, an incident is 
defined as a sudden event involving an uncontrolled chemical reaction--
with significant increases in temperature, pressure, and/or gas 
evolution--that has caused or has the potential to cause serious harm 
to people, property, or the environment.
    Through site visits and a survey of select small, medium, and large 
companies, information was gathered about good practices for reactive 
hazard management within the chemical industry. CSB conducted site 
visits at industry facilities that have implemented programs for 
managing reactive hazards.
    Response to Questions of Senator Wellstone From John L. Henshaw
                       questions on recordkeeping
    1. According to OSHA's own estimates, the recently announced change 
in criteria for reporting work-related hearing loss, from a 10-decibel 
loss to a 25-decibel loss, could have a profound impact on worker 
protection and preventing occupational hearing loss. In particular, 
OSHA has estimated that the original 10-decibel criteria would have 
resulted in 275,000 cases of hearing loss being recorded annually. The 
agency estimates that the weaker criteria issues earlier this month 
will result in 145,000 cases being recorded. That means that 130,000 
cases of hearing loss will not be recorded. Cases will only be recorded 
when workers have reached the point of impairment. There will, 
therefore, be no ability to use the injury log as a way of identifying 
jobs where there are problems and intervene before workers suffer 
severe and significant damage. Since you have repeatedly said your 
interest as a safety and health professional is in preventing work-
related fatalities, injuries, and illnesses, how do such reporting 
criteria contribute to prevention?
    OSHA's new hearing loss recording criteria involve a two-part test. 
First, the employee's hearing test must show a 10-decibel loss compared 
to baseline audiogram (the hearing test given to employees when they 
are placed in a hearing conservation program). This is the same 
criterion used in the 2001 rule. The change is that the new criteria 
also require the audiogram to show a 25-decibel hearing level relative 
to audiometric zero (the reference point used for hearing tests). 
According to most health care professionals, such as the American 
Medical Association, the American Academy of Family Physicians, the 
American Academy of Audiology, and the World Health Organization, a 
hearing level between audiometric zero and 25 decibels is considered 
normal hearing-the employee experiences no or very slight hearing 
problems. By excluding the cases that fall within audiometric zero and 
25 decibels the recordkeeping regulation assures that all recorded 
cases fall outside the normal hearing range and represent the type of 
occupational illness intended to be captured by the occupational injury 
and illness recording and reporting system.
    The purpose of the 29 CFR Part 1904 occupational injury and illness 
recordkeeping regulation is to require employers to keep records of 
serious, significant, and disabling work-related injuries and illnesses 
per Section 8(c) of the OSH Act. The regulation does not collect other 
types of data, including information on near misses, minor injuries or 
illnesses, or accidents resulting only in property damage. To the 
extent that employers and employees analyze these injury and illness 
data to avoid future injuries and illnesses, it has protective value. 
OSHA encourages employers to use the data for this purpose, even though 
it is not required by regulation.
    The Part 1904 regulation is not intended to act as a workplace 
standard that provides direct protection to workers. That is the 
purpose of OSHA's safety and health standards, such as the general 
industry 29 CFR Part 1910 standards. For the purpose of preventing 
hearing loss to general industry workers, the Sec. 1910.95 Occupational 
Noise Exposure standard requires employers to protect workers from 
exposure to excessive noise levels. The noise standard requires 
employers to establish a hearing conservation program for all employees 
exposed in an 8-hour time-weighted average sound level of 85 decibels 
or more. This program includes audiometric testing and mandatory 
hearing protection requirements for employees who experience a 10-
decibel loss in hearing.
    2. Now that the new recordkeeping standard is in place, I have 
questions about whether OSHA will be enforcing and citing employers for 
failure to record injuries and illnesses in past years under the old 
recordkeeping standard. My understanding is that it has been OSHA's 
practice during inspections to look at injury logs going back several 
years, and to cite employers if violations are found on those logs. 
Will OSHA continue to cite employers for recordkeeping violations on 
the log 200 for previous years (2001, 2000, 1999) under the previous 
recordkeeping standard? If not, why not?
    Several factors make it difficult for OSHA to issue citations for 
recordkeeping violations related to the 200 log. Section 9(c) of the 
OSH Act requires that a citation be issued within six months of the 
occurrence of the violation. Thus, OSHA can no longer issue citations 
under the old recordkeeping rule, which was withdrawn effective January 
1, 2002. In addition, during the development of the new recordkeeping 
regulation, OSHA decided that it would be too burdensome and confusing 
for employers to update the 200 log data using the old rules, while 
also trying to learn the new recordkeeping rules. Therefore, 
Sec. 1904.44 of the new regulation specifically states that employers 
are not been required to update their old records.
    This regulatory policy, in combination with the OSH Act's Section 
9(c) prohibition on issuing any citation after six months following the 
occurrence of the violation, makes it difficult to routinely issue 
citations for the old records. However, the agency will continue to 
consider citations for situations, involving egregious circumstances on 
a case-by-case-basis.
      Response to Questions of Senator Murray From David Lauriski
  questions on process safety management of highly hazardous chemicals
    1. Who at OSHA or within the Department of Labor was involved in 
the decision to withdraw the PSM rulemaking?
    As Assistant Secretary, I made the decision to withdraw PSM from 
the Regulatory Agenda. OSHA had included the possibility of addressing 
this issue on the Regulatory Agenda for several years, but little 
progress had been made. As you know, we removed a number of items from 
the Regulatory Agenda to focus our activities and to make it more 
likely that we can meet the dates we project. This item was one of the 
ones we removed due to resource constraints and other priorities. This 
particular issue is still evolving, and the Chemical Safety Board (CSB) 
is continuing its work on a report. We are monitoring the situation to 
determine whether further regulatory action is needed, as well as 
examining the possibility of issuing non-regulatory guidance to address 
the issue more quickly than a rulemaking could. Its removal from the 
Agenda is not an indication that we don't think it is an important 
issue, nor does it mean no work will be done regarding it.
    2. What communications did any of these individuals have with 
representatives or staff of the Chemical Safety Board prior to the 
decision to withdraw the rulemaking?
    I had no specific communication with the Chemical Safety Board 
regarding my decision to withdraw this item from the Regulatory Agenda. 
As will be indicated below in response to other questions, OSHA staff 
has engaged in discussions of the issue with CSB staff on other aspects 
of this issue, as well as provided information to CSB. I decided to 
withdraw the rulemaking after thoroughly considering where OSHA should 
focus its resources, and what could realistically be accomplished 
within the state time frame. As noted above, we consider this an 
important issue, and continue to be involved and to monitor 
developments. Furthermore, rulemaking is not the only means available 
to address issues such as these, nor is it often the quickest means to 
remedy an issue. We are also considering the development of guidance 
for the chemical industry to help prevent further incidents involving 
reactive chemicals.
    3. In particular was anyone at OSHA or at the Department of Labor 
aware of the information in the possession of the Chemical Safety Board 
that led to the attached Chemical Safety Board staff findings?
    The CSB shared data and information with OSHA and EPA during this 
project, and it is likely that some of that data and information are 
included in the findings. Additionally, for more than two years, OSHA 
and EPA have maintained a working relationship with the CSB, and have 
provided input to the study at the staff level.
    If so, was this information considered during the decision-making 
on withdrawing the rulemaking?
    I considered a number of factors when making decisions about what 
items should remain on the regulatory agenda. However, the primary 
concerns involved resources, priorities for the Agency and for the 
Department, and the likelihood of action being concluded within the 
time frame covered by the regulatory agenda.
    5. Did you or anyone at OSHA or the Department of Labor ever direct 
an analysis of OSHA's own enforcement data to confirm the existence of 
incidents such as those referred to in the Chemical Safety Board 
staff's findings?
    OSHA has not conducted a comprehensive study of any of its internal 
data to determine the extent and nature of reactive chemical incidents. 
However, at the request of CSB, OSHA did direct an analysis of its 
enforcement data to obtain background information on 12 specific 
reactive incidents in which OSHA responded and conducted an inspection. 
Additionally, our Office of Regulatory Analysis conducted a preliminary 
study with respect to reactive chemicals OSHA identified from the 
National Fire Protection Association's (NFPA) document entitled 
``Hazardous Chemicals Data'' which ranks chemicals according to NFPA's 
``Standard System for the Identification of the Fire Hazards of 
Materials.'' That report was provided to the Chemical Safety Board.
      Response to Questions of Senator Murray From John L. Henshaw
    1. When you testified before the full HELP Committee during the 
hearing on asbestos and workplace safety that I chaired almost a year 
ago, Senator Baucus invited you out to Libby to see the devastation 
that community has experienced. Can you please share your impressions 
from your visit?
    I was able to travel to Libby, Montana, October 4, 2001. Touring 
the area where mining occurred and touring the surrounding area and 
town left many powerful impressions about how the unknowing widespread 
exposure to asbestos found in the products of the mining operation 
affected the town and its people. I left the area strongly believing 
that all possible actions should be taken to protect the health of the 
citizens of Libby, and, most of all, that public policy makers should 
be diligent about not letting anything similar happen again.
    2. Can you please update the Committee on OSHA's most recent 
activities related to Libby, recognizing, of course, that EPA is the 
lead agency in the cleanup effort?
    OSHA continues to work cooperatively with MSHA and other Federal 
agencies, including the Environmental Protection Agency (EPA) and the 
National Institute for Occupational Safety and Health (NIOSH). We have 
provided an Agency representative to EPA's Interagency Taskforce on 
Asbestos Contamination in Libby, Montana and have enlisted NIOSH in a 
request for technical assistance to determine asbestos-exposure levels 
at worksites from the mining products of other vermiculite mines.
    OSHA's prevailing concern, at this time, regarding the Libby, 
Montana clean-up activities is to ensure that employees conducting this 
work are appropriately protected. Employee protection has been and will 
continue to be regulated under the OSHA's Hazardous Waste Operations 
and Emergency Response standard (29 CFR 1910.120). This standard 
requires a written safety and health program, employee training, 
protective work clothing and equipment, including the use of 
respirators, employee exposure monitoring, medical surveillance, and 
other provisions to ensure employee safety. OSHA personnel have visited 
the site and reviewed the written program for clean-up activities at 
Libby.
    In order to determine whether vermiculite from mines other than 
Libby presents an asbestos-exposure hazard to workers who are using or 
handling products that contain vermiculite, OSHA has requested 
assistance from NIOSH. In response, NIOSH has conducted investigations 
in horticultural facilities and exfoliation plants to determine the 
extent of asbestos exposure in these settings. NIOSH is analyzing 
asbestos exposure levels from four sources (vermiculite from South 
Africa, two mines in South Carolina, and one mine in Virginia) and is 
nearing completion of this work. Surveys of the horticultural 
facilities have been completed and the reports are under review. Six 
exfoliation plants have been investigated; two additional 
investigations are planned. To date, numerous samples have been 
analyzed by standard methods (Phase Contrast Microscopy) and by 
Transmission Electron Microscopy (TEM). TEM will detect asbestos fibers 
at the lowest concentrations. OSHA is in contact with NIOSH regarding 
these investigations and awaits the final reports.
    3. Do you believe that passage of the Ban Asbestos in America Act 
of 2002 would result in improved protections for workers from exposure 
to harmful levels of asbestos?
    I have not had an opportunity to review the legislation for its 
impact on occupational safety and health policy, and the Administration 
has not produced a Statement of Administration Policy (SAP) on the 
legislation at this time. Nonetheless, OSHA inspectors are diligent 
about checking for the presence of asbestos in all inspections of 
workplaces.
    I remain very concerned that mechanics across the country, as well 
as consumers who work on their cars, are being exposed to harmful 
levels of asbestos from friction products. The Seattle-Post 
Intelligencer found concentrations of asbestos ranging from 2.3 percent 
to 63.8 percent in dust samples it collected at gas stations throughout 
the nations. I understand there are regulations in place to protect 
mechanics from asbestos in brakes, but what--if anything--is OSHA doing 
to make sure these regulations are being followed?
    OSHA regulates asbestos exposures to mechanics under the General 
Industry Standard, (29 CFR 1910.1001). This standard requires employers 
ensure that employee exposures do not exceed 0.1 fibers/cubic 
centimeter of air (f/cc) as an eight-hour, time-weighted average (TWA). 
Under the General Industry Standard for asbestos, OSHA has set 
mandatory Work Practices and Engineering Controls for Automotive Brake 
and Clutch Inspection, Disassembly, Repair and Assembly. These 
requirements apply whenever brake work is done, regardless of exposure 
levels. When these mandatory work practices and engineering controls 
are followed, OSHA estimates that the employee's average asbestos 
exposure will be 0.003 fibers/cubic centimeter. OSHA conducts 
inspections in response to complaints (from employees) or referrals. 
Referrals may come from sources such as State public health personnel, 
law enforcement, or the news media. Additionally, OSHA targets 
establishments for inspection through the site specific targeting 
program, National Emphasis Programs and Local Emphasis Programs. These 
programs do not specifically focus on asbestos; however, in any 
inspection where asbestos is identified as a potential exposure, this 
exposure would be investigated and evaluated.
    Is OSHA doing any outreach to these small businesses to help them 
with compliance?
    As part of its ongoing outreach service OSHA contracts with states 
to provide on-site hazard detection and prevention services by 
qualified state consultants. Called the OSHA Consultation Program, 
there are programs in each state to provide small high hazards 
employers with free and confidential assistance in the correction of 
workplace hazards, including asbestos. At the employer's request, these 
consultants conduct a thorough review of the workplace to identify 
hazards and make cost effective recommendations for their correction or 
elimination. Should employee training be necessary, the consultant may 
also provide it at the employer's place of business. In addition, these 
consultants will work with employers to develop a workplace safety and 
health management system to prevent hazards from re-occurring. Finally, 
Secretary Chao announced that OSHA is creating an office dedicated to 
small business that will serve as one-stop shopping for small-business 
owners. This will be the first time that small-business concerns will 
become a permanent fixture in OSHA.
    6. How many site inspections has OSHA conducted in the past year to 
ensure OSHA's regulations are being followed?
    Froze October 1, 2001 to June 30, 2002, Federal OSHA has conducted 
26,349 inspections and the States have conducted 40,229 inspections.
       Response to Questions of Senator Enzi From David Lauriski
    1. Your testimony indicated working conditions in the country are 
improving. The rate of worker injuries is now at its lowest levels 
since records have been kept. I believe we have a great success story 
here. How much credit should we give to OSHA for that success?
    OSHA, in showing the value safety and health add to the workplace, 
has served as a catalyst for employers and workers, who also deserve 
credit for the dramatic reductions in the last ten years. I believe 
there has been a culture shift in this country, and most employers now 
acknowledge safety and health as a corporate value. OSHA has 
contributed to this shift by providing assistance and support, and 
where needed, strong enforcement. We have good examples of 
``turnaround'' companies which, after an enforcement visit, made 
substantial improvements in their safety records. But I am not 
satisfied with our progress. There are still far too many workplace 
fatalities, and injuries and illnesses. I believe that by implementing 
the Secretary's and my priorities for the Department, we will continue 
to improve workplace conditions for all our employees.
    2. I've heard that OSHA's compliance officers don't understand the 
industries they are inspecting. Sometimes, the inspector has never even 
set foot in any plant in that particular industry until he shows up for 
an inspection. What are you doing to improve the level of competency 
among your inspector staff?
    Many OSHA employees, including a number of front-line inspectors, 
are board certified by various accreditation bodies and other, non-
certified, inspectors have expressed a strong desire to attain 
certification. One of my goals is to increase the number of certified 
inspectors, so that OSHA's credibility in the industrial community is 
recognized. The Agency plans to help inspectors obtain their 
credentials by providing extra training and paying for the cost of the 
testing process, consistent with new authorities given us by Congress 
in Public Law 107-107, the National Defense Authorization Act for 
Fiscal Year 2002. I also have a task force exploring various other 
approaches. In addition, we plan to hire more staff with private-sector 
experience, and are considering having OSHA inspectors intern with 
companies so that they gain first-hand experience in the type of 
facilities they will inspect.
    3. I've always been concerned about the impact of regulatory 
agencies on small businesses. Is your agency doing anything to ease the 
burden on small business? Do you give a small business any break when 
you conduct enforcement visits?
    Do they have to comply with the same regulations as a big company? 
Doesn't this put them at a competitive disadvantage?
    OSHA offers many resources designed specifically for smaller 
employers and carefully considers any potential regulatory burden on 
small businesses from its actions. For instance, under the new 
recordkeeping rule, which became effective January 1, 2002, businesses 
with ten or fewer employees are exempt from the requirements of the 
rule. To provide further assistance to small businesses, I've also 
recently hired a Special Assistant for Small Business, who comes from 
the small-business sector and who will serve as a liaison to small 
businesses. In addition, we have created a new position, Compliance 
Assistance Specialist, and placed one in each of our 67 Area Offices. 
These specialists will meet with employers and employees to help them 
understand OSHA's regulations and to encourage safe and healthy 
workplaces. Under our proposed restructuring, we are creating a 
Directorate on Cooperative and State Programs, which will provide 
businesses with compliance assistance. The Agency is also in the 
process of putting together a new compliance assistance plan, which 
will be designed to help all businesses, but particularly those in the 
small business sector. Our Consultation Program is designed to provide 
free, on-site assistance to small firms. Finally, the Occupational 
Safety and Health Act does allow the Agency to give significant penalty 
reductions to small firms cited by OSHA and our Directives to the field 
inspectors require that the reductions be applied. The amount of the 
reduction depends on the gravity of the violation, the size of the 
business, the history of any serious violations, and the good faith of 
the employer.
    4. Business leaders tell me they want to comply with OSHA 
standards, but they are too complex and technical for them to 
understand. What's being done to eliminate this confusion?
    That's why compliance assistance is so important. The 67 Compliance 
Assistance Specialists in our field offices are helping employers 
understand the rules. Another program, the free on-site consultation 
program, which is available in all 50 states, provides additional 
assistance. Our partnership and alliance programs are also structured 
to maximize compliance assistance efforts, such as distribution and 
delivery of training materials and sharing of ``best practices'' on how 
to reduce exposure to workplace hazards. We currently have 137 of these 
partnerships with individual employers and trade associations. The 
Agency provides other outreach such as SBREFA compliance guides, 
electronic advisors, and interpretation letters, which respond to 
employer questions about how specific requirements apply under various 
circumstances. Finally, as resources permit, we are beginning to 
rewrite the regulations in simple-to-understand language. The OSHA 
Means of Egress rule has been rewritten in simpler language and will be 
published as a final rule later this year. It will, for example, be 
called Exit Routes instead of Means of Egress.
    5. What role does OSHA play in homeland security? It would seem 
that workplaces like chemical and nuclear plants would be possible 
targets for future attacks. Couldn't OSHA help those plants improve 
their security?
    Our roles in the World Trade Center recovery and cleanup operations 
and in response to anthrax sent through the mail are good examples of 
the role OSHA can play. Soon after the anthrax scare, we published a 
matrix of the types of controls that are needed, and made the material 
widely available through our website and through other sources. OSHA is 
also working with the Office of Homeland Security's Chemical Security 
Issues Working Group, which is an interagency task force, with the 
following members: OSHA, EPA, DOE, DOT, DOJ and OMB. The task force has 
been meeting since the middle of May, to coordinate efforts on chemical 
site security programs.
    6. Explain to me how OSHA selects sites for enforcement action. 
I've heard complaints about overzealous inspectors who are ``out to 
get'' specific employers. Do you just randomly pick workplaces to 
visit, or do you have some targeting process in place?
    OSHA has established a set of priorities for selecting workplaces 
for inspection, as described in the Agency's Field Inspection Reference 
Manual. OSHA's first priority is to investigate all work-related 
fatalities. Next, we investigate all valid employee complaints, many of 
them through our phone/fax process. OSHA is required by law to ensure 
that companies selected for general schedule inspections are selected 
by an administrative plan based on neutral criteria. We ``target'' our 
remaining enforcement activity by our Site Specific Targeting (SST) 
system, which uses the firm's injury and illness rate, and with Local 
and National Emphasis Programs. Firms in industries that have an injury 
and illness rate at least twice the national average are first notified 
they are on a targeted list, and then are selected for inspection on a 
random basis. All our field offices use this targeting system and do 
not indiscriminately select companies for enforcement action.
    7. I've always thought that besides conducting inspections, the 
government ought to find ways to help employers come into compliance 
with your regulations. What assistance does OSHA offer businesses so 
they can help themselves correct workplace problems?
    The Secretary recently announced a major compliance assistance 
initiative. As part of that initiative, the Secretary has created a 
new, permanent, senior position, dedicated to coordinating the 
Department's compliance assistance activities, and ensuring that all of 
the Department's agencies are doing everything needed to help employers 
comply with the law. The second level of this sweeping change is taking 
place, in detail, at the agency level. For example, OSHA is creating an 
office dedicated to small business that will provide one-stop shopping 
for small-business owners. This will be the first time that small-
business concerns will become a permanent fixture in OSHA and its staff 
will be expert in small business issues and committed to helping small 
employers with occupational safety and health issues. This staff will 
function absolutely separate from inspection officers. Finally, OSHA 
continues to offer free on-site consultation programs in all 50 states. 
This program, funded at $51 million in FY2002, gives priority to firms 
with fewer than 250 employees. Last year, the program provided on-site 
assistance to more than 27,000 worksites.
    8. You continue to mention partnerships as a means of getting 
employers to address safety and health problems in their workplaces. Do 
you have any evidence that these partnerships are actually improving 
conditions?
    OSHA has numerous examples of partnerships that have not only 
reduced injuries and illnesses but have saved employers money. y For 
example, in Cincinnati, OSHA formed a cooperative partnership with the 
contractors who constructed Paul Brown Stadium for the Cincinnati 
Bengals. The partnership focused on fall protection, one of the leading 
causes of fatalities in construction. It was designed to increase 
employee involvement and establish joint labor and management oversight 
of conditions at the job site. The partnership produced results as the 
lost workday injury and illness rate for the site (Dec 2000) was 0.95 
per 100 workers compared to a national rate of 4 per 100 for the 
construction industry. Another partnership that produced positive 
results was with Pinion Management, a Colorado-based manager of seven 
nursing homes. At Pinion's homes, workers compensation claims dropped 
from 115 in 1999 to five by early 2001. Associated costs to the company 
were reduced from $232,000 to $1,500--a 99 percent reduction-in the 
first quarter of 2001. These results mean a lot less pain and suffering 
for workers and their families as well as reduced costs for employers. 
OSHA has numerous other examples of successful partnerships.
    9. I was quite impressed with OSHA's role during the cleanup 
activities at the World Trade Center. Your staff needs to be 
congratulated on doing a great job without conducting any enforcement 
actions. What was the budgetary impact of your extensive efforts at 
this site? Will it affect your ability to meet your other goals?
    OSHA is continuing to fulfill its mission of protecting the safety 
and health of the nations workforce. In FY 2001 and FY 2002, OSHA 
received a total of $1.5 million of emergency supplemental funding. As 
of June 2002, the agency had obligated approximately $5.7 million 
toward World Trade Center Emergency Assistance. This included funds to 
cover the work of over 600 Federal OSHA staff that had, at various 
times, been onsite to provide guidance and assistance. The work at the 
WTC complex required some shifting of resources, and required great 
flexibility and dedication among staff-both those responding and 
reacting to the emergency and aftermath and those who remained at their 
work stations to cover for those who went to the WTC site. Although it 
would be difficult to replicate the shifting of personnel and resources 
under similar fiscal and workload conditions without disruption of 
Agency work-the agency continued to provide effective enforcement, 
outreach, assistance and training while the site clean-up was 
completed.


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    [Whereupon, at 11:22 a.m., the subcommittee was adjourned.]

                                    

      
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