[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
   WORKPLACE SAFETY: WHY DO MILLIONS OF WORKERS REMAIN WITHOUT OSHA 
                               COVERAGE? 

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, MAY 24, 2007

                               __________

                           Serial No. 110-41

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html

                     U.S. GOVERNMENT PRINTING OFFICE

35-345 PDF                 WASHINGTON DC:  2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP, 
Washington, DC 20402-0001
























                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Ranking Minority Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Bob Inglis, South Carolina
Raul M. Grijalva, Arizona            Cathy McMorris Rodgers, Washington
Timothy H. Bishop, New York          Kenny Marchant, Texas
Linda T. Sanchez, California         Tom Price, Georgia
John P. Sarbanes, Maryland           Luis G. Fortuno, Puerto Rico
Joe Sestak, Pennsylvania             Charles W. Boustany, Jr., 
David Loebsack, Iowa                     Louisiana
Mazie Hirono, Hawaii                 Virginia Foxx, North Carolina
Jason Altmire, Pennsylvania          John R. ``Randy'' Kuhl, Jr., New 
John A. Yarmuth, Kentucky                York
Phil Hare, Illinois                  Rob Bishop, Utah
Yvette D. Clarke, New York           David Davis, Tennessee
Joe Courtney, Connecticut            Timothy Walberg, Michigan
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                LYNN C. WOOLSEY, California, Chairwoman

Donald M. Payne, New Jersey          Joe Wilson, South Carolina,
Timothy H. Bishop, New York            Ranking Minority Member
Carol Shea-Porter, New Hampshire     Tom Price, Georgia
Phil Hare, Illinois                  John Kline, Minnesota






















                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on May 24, 2007.....................................     1
Statement of Members:
    Wilson, Hon. Joe, ranking minority member, Subcommittee on 
      Workforce Protections......................................     4
        Prepared statement of....................................    20
        Article from the Journal of Regulatory Economics (2006), 
          ``Regulatory Federalism and Workplace Safety: Evidence 
          From OSHA Enforcement, 1981 to 1995''..................     6
        Letter, dated May 23, 2007, from Associated Builders and 
          Contractors, Inc.......................................    54
    Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Fillman, David, executive director, Council 13, American 
      Federation of State, County and Municipal Employees 
      (AFSCME)...................................................    24
        Prepared statement of....................................    26
    Jones, Casey, on behalf of the American Federation of State, 
      County and Municipal Employees (AFSCME)....................    28
        Prepared statement of....................................    29
    Sarvadi, David G., attorney, Keller and Heckman LLP..........    31
        Prepared statement of....................................    32
    Turnipseed, Jon, certified safety professional, on behalf of 
      the American Society of Safety Engineers (ASSE)............    35
        Prepared statement of....................................    37


                  WORKPLACE SAFETY: WHY DO MILLIONS OF
                 WORKERS REMAIN WITHOUT OSHA COVERAGE?

                              ----------                              


                         Thursday, May 24, 2007

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:33 a.m., in 
Room 2175, Rayburn House Office Building, Hon. Lynn Woolsey 
[chairwoman of the subcommittee] presiding.
    Present: Representatives Woolsey, Payne, Bishop, Shea-
Porter, Hare, Andrews, Wilson, and Kline.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional; 
Jody Calemine, Labor Policy Deputy Director; Lynn Dondis, 
Senior Policy Advisor for Subcommittee on Workforce 
Protections; Carlos Fenwick, Policy Advisor for Subcommittee on 
Health, Employment, Labor and Pensions; Michael Gaffin, Staff 
Assistant, Labor; Peter Galvin, Senior Labor Policy Advisor; 
Jeffrey Hancuff, Staff Assistant, Labor; Brian Kennedy, General 
Counsel; Thomas Kiley, Communications Director; Joe Novotny, 
Chief Clerk; Mark Zuckerman, Staff Director; Michele Varnhagen, 
Labor Policy Director; Steve Forde, Minority Communications 
Director; Ed Gilroy, Minority Director of Workforce Policy; Rob 
Gregg, Minority Legislative Assistant; Richard Hoar, Minority 
Professional Staff Member; Victor Klatt, Minority Staff 
Director; Jim Paretti, Minority Workforce Policy Counsel; Molly 
McLaughlin Salmi, Minority Deputy Director of Workforce Policy; 
Linda Stevens, Minority Chief Clerk/Assistant to the General 
Counsel; and Loren Sweatt, Minority Professional Staff Member.
    Chairwoman Woolsey [presiding]. A quorum is present. The 
hearing of the Workforce Protection Subcommittee on ``Workplace 
Safety: Why Do Millions of Workers Remain Without OSHA 
Coverage?'' will come to order.
    Pursuant to Committee Rule 12(a), any member may submit an 
opening statement in writing which will be made part of the 
permanent record.
    Now I recognize myself, followed by Ranking Member Joe 
Wilson, and then followed by Chairman Rob Andrews from another 
subcommittee, and we will go in that order, and then we will go 
to the wonderful panel of witnesses.
    So I want to thank all of you for being here today to 
address the serious shortcoming in our federal OSHA law: the 
lack of coverage for public employees.
    I am especially grateful to you, Ms. Jones, for being 
willing to come forward to testify about the human cost of our 
failure to provide health and safety protection to all workers.
    While OSHA covers most private workers and an Executive 
Order covers most federal workers, there is no comparable 
coverage for over 8.5 million state, county and municipal 
workers. The tragedy is that Congress gave the states the 
opportunity to cover their public employees with the promise of 
matching funds, but today, 37 years after the passage of OSHA, 
26 states still do not have OSHA-approved state plans that 
would cover public employees.
    These employees work in a wide variety of areas and may be 
highway construction workers. They may be wastewater treatment 
plant workers like Mr. Jones; they may be hospital personnel, 
correctional officers; and they work in the same hazardous 
environments that private-sector employees work in.
    Every month, dozens of public employees in this country are 
killed or injured--thousands are injured--in accidents that 
could have been prevented had their workplace been covered by 
OSHA.
    It is important to remember that when we speak of OSHA 
coverage, we are talking about more than compliance with 
specific OSHA standards. In fact, OSHA sets out a number of 
other provisions that are critical to safe workplaces, and 
these include: the ability of workers to request and 
participate in inspections by an outside authority and to have 
an independent investigation of every fatality and significant 
workplace injury; the enforcement of the law and training on 
health and safety standards and hazards; a whistleblower 
provision protecting workers against retaliation for exercising 
their health and safety rights; and the right of workers to 
have access to critical information regarding their health, 
exposure to certain hazards, along with statistics on injury 
and illness at their worksites.
    And as an aside, this subcommittee is also working to 
ensure what I just listed actually has teeth. So know that.
    Without OSHA coverage, workers have none of these basic 
rights, even if these rights are not always supported by OSHA 
itself.
    So let me give you a brief illustration about how important 
these rights are.
    Tony Poole, a 42-year-old public employee, was killed in 
Byron, Georgia, last year when a trench collapsed on top of 
him. Because Georgia does not approve coverage for its public 
employees, there was never any OSHA investigation into the 
reason why Mr. Poole was killed. Had there been an 
investigation, his family, and his friends, his co-workers 
might have learned that if an OSHA trench standard requiring 
that the use of a trench box to keep the trench from caving in 
had been in place, Tony Poole would be alive today.
    Today, we will hear from Casey Jones whose husband, Clyde, 
was needlessly killed last year in an explosion at the Bethune 
Wastewater Treatment Plant, a facility owned and operated by 
the City of Daytona Beach, Florida. This incident caught the 
attention of the United States Chemical Safety Board, and it 
decided to investigate precisely because the employees of the 
City of Daytona Beach, such as Mr. Jones, were not covered by 
OSHA.
    Let me first say something about the U.S. Chemical Safety 
Board. It is an independent investigative agency created by 
Congress in the wake of major chemical explosions in the 1980s, 
and it is charged with investigating major chemical-related 
incidents. The board consists of five individuals appointed by 
the president for 5-year terms, and all the current members on 
the board were appointed by President Bush.
    In the accident involving Mr. Jones, the board found that 
several OSHA standards had been violated, standards that, if 
followed, would have prevented the explosion. As a result, it 
recommended to the Florida state legislature and to the 
governor that the state pass legislation providing OSHA 
coverage to public employees.
    I think it should be noted that this board has submitted 
testimony for this hearing today calling for OSHA coverage for 
all public employees.
    Now, there are many who object to providing OSHA coverage 
to state, county and municipal employees on the grounds that it 
is too expensive, and I will be interested to hear the views of 
safety manager Jon Turnipseed on this very subject.
    As a purely economic matter, the money saved in workers 
compensation and other costs by covering public employees 
should and would more than pay for these programs. However, it 
is impossible to quantify the cost to victims or to their 
families of these senseless and preventable injuries and 
deaths.
    But I do know this: The cost is too high, and we in 
Congress must do whatever we can to fulfill the promise OSHA 
made 37 years ago to provide all workers--that means all 
workers--with safe and healthful workplaces.
    Mr. Wilson?
    [The prepared statement of Ms. Woolsey follows:]

Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman, Subcommittee on 
                         Workforce Protections

    I want to thank everyone for coming here today as we address a 
serious shortcoming in our federal OSHA law: the lack of coverage for 
public employees.
    And I am especially grateful to you, Mrs. Jones, for being willing 
to come forward to testify about the human cost of our failure to 
provide health and safety protection to these workers.
    For while OSHA covers most private workers and an Executive Order 
covers most federal workers, there is no comparable coverage for over 
8.5 million state, county and municipal workers.
    The tragedy is that Congress gave the states the opportunity to 
cover their public employees with the promise of matching funding, but 
today, 37 years after the passage of OSHA, 26 states still do not have 
OSHA-approved state plans that would cover public employees.
    These employees work in a wide variety of areas and may be highway 
construction workers, wastewater treatment plant workers like Mr. 
Jones, hospital personnel or corrections officers.
    And they work in the same hazardous environments that private 
sector employees do.
    Every month, dozens of public employees in this country are killed 
and thousands injured in accidents that could have been prevented had 
their workplaces been covered by OSHA.
    It is important to remember that when we speak of OSHA coverage, we 
are talking about more than compliance with specific OSHA standards.
    In fact, OSHA sets out a number of other provisions that are 
critical to safe workplace. These include:
     The ability of workers to request and participate in 
inspections by an outside authority and to have an independent 
investigation of every fatality and significant workplace injury;
     The enforcement of the law and training on health and 
safety standards and hazards;
     A whistleblower provision protecting workers against 
retaliation for exercising their health and safety rights; and
     The right of workers to have access to critical 
information regarding their health, exposure to certain hazards, along 
with statistics on injury and illnesses at their work sites.
    Without OSHA coverage, workers have none of these basic rights.
    Let me give you a brief illustration about how important OSHA 
rights are.
    Tony Poole, a 42 year old public employee, was killed in Byron, 
Georgia last year when a trench collapsed on top of him.
    Because Georgia does not provide coverage for its public employees, 
there was never any OSHA investigation into the reason why Mr. Poole 
was killed.
    Had there been an investigation, his family, friends and co-workers 
might have learned that if an OSHA trenching standard---requiring that 
the use of a trench box to keep the trench from caving in---had been in 
place, Tony Poole would be alive today.
    Today, we will hear from Casey Jones, whose husband, Clyde Jones, 
was needlessly killed last year in an explosion at the Bethune 
Wastewater Treatment Plant, a facility owned and operated by the City 
of Daytona Beach in Florida.
    This incident caught the attention of the U.S. Chemical Safety 
Board, and it decided to investigate precisely because the employees of 
the City of Daytona Beach, such as Mr. Jones, were not covered by OSHA.
    Let me first say something about the U.S. Chemical Safety Board.
    It is an independent investigative agency created by Congress in 
the wake of major chemical explosions in the 1980's, and it is charged 
with investigating major chemical-related incidents.
    The Board consists of 5 individuals appointed by the President for 
five-year terms, and all the current members on the Board were 
appointed by President Bush.
    In the accident involving Mr. Jones, the Board found that several 
OSHA standards had been violated, standards that if followed, would 
have prevented the explosion.
    As a result, it recommended to the Florida State Legislature and 
the Governor that the State pass legislation providing OSHA coverage to 
public employees.
    I think it should be noted that this Board has submitted testimony 
for this Hearing today, calling for OSHA coverage for all public 
employees.
    Now, there are many who object to providing OSHA coverage to state, 
county and municipal employees on the grounds that it is too expensive.
    And I'll be interested to hear the views of a safety manager--Mr. 
Jon Turnipseed--on this subject.
    As a purely economic matter, the money saved in workers 
compensation and other costs by covering public employees should more 
than pay for these programs
    However, it is impossible to quantify the costs to victims or their 
families of these senseless and preventable injuries and deaths.
    But I do know this. The cost is too high, and we in Congress must 
do whatever we can to fulfill the promise OSHA made 37 years ago to 
provide all workers with a safe and healthful workplace.
                                 ______
                                 
    Mr. Wilson. Thank you, Madam Chairman.
    Good morning. I would like to welcome our witnesses today 
and thank them for their testimonies. I look forward to our 
discussion.
    Before we begin, I believe it is important to provide some 
context for this morning's hearing.
    First of all, we should recognize that the Occupational 
Safety and Health Act explicitly allows states to adopt 
workplace health and safety programs to cover state and 
municipal employees, a group brought into focus by our current 
hearing today.
    Likewise, it is important to understand that under current 
law OSHA is able to inspect every worksite very rarely, which, 
by any reasonable measure, is a clear sign that the agency has 
difficulty enforcing laws already on the books. In other words, 
its ability to take on a new layer of responsibilities, as some 
in Congress are looking to mandate, is questionable at best.
    And finally, it can be argued that state and local 
regulators, not politicians or federal bureaucrats in 
Washington, are more attuned to the work environments in their 
unique states and communities.
    Taken together, what does all of this mean? At a minimum, I 
believe it means that any attempts out of Washington to expand 
OSHA's jurisdiction raises significant questions as to how this 
expansion will be funded as well as those of federalism in 
deference to communities' rights and interests.
    Furthermore, I believe it means that rather than expanding 
the jurisdiction of an already overburdened federal OSHA, 
Congress should be incentivizing states to adopt workplace 
health and safety programs of their own instead of force 
unfunded mandates upon them or asking OSHA to extend itself 
even further.
    My home state of South Carolina is what is known as a state 
plan state. My state and 20 others have submitted comprehensive 
health and safety plans that meet or exceed federal standards 
to the secretary of labor, who in turn verified and approved 
them. As a result, these states receive 50 percent of their 
enforcement costs from federal OSHA and, consequently, accept 
responsibility for regulating the workplace health and safety 
of both private-and public-sector employees.
    In short, the state plan works well to protect employees, 
regardless of sector, and should be a key focus as Congress 
works to enact any reforms to federal health and safety laws.
    At this time, I would like to introduce an article for the 
record entitled ``Regulatory Federalism and Workplace Safety: 
Evidence From OSHA Enforcement, 1981 to 1995.''
    Chairwoman Woolsey. Without objection.
    [The information follows:]
    
    
        
                                ------                                

    Mr. Wilson. This article highlights the good work done by 
state plans. I would draw your attention to one of the 
article's conclusions: ``The decentralized nature of state 
programs may give these states an advantage in preventing 
workplace accidents over federal regulators.''
    I have seen firsthand the success of VP-8 delegating 
requirements to state agencies in South Carolina where staff 
are on the ground and can interpret quickly local needs. The 
result is a cleaner environment immediately in my home state.
    Given this, I hope that today's hearing focuses on how to 
encourage states to take delegation of safety and health 
regulations rather than forcing additional federal mandates on 
the states, mandates that may fail to adequately protect 
American workers at the end of the day.
    Just yesterday, I met with county councilman Jerry Stewart 
of Buford County, South Carolina, and municipal officials from 
some of the fastest-growing communities in North America in the 
low country of South Carolina from Hardeeville, Bluffton and 
Hilton Head. I assured them I would work to prevent mandates on 
local government. It is challenging now to plan for the 
extraordinary growth that they face without new federal 
programs.
    Before I conclude, Chairman Woolsey, I would also like to 
briefly mention another aspect of this hearing, specifically 
the preemption of other federal agencies for implementing 
safety and health plans for workers, also known as the so-
called 4(b)(1) exemption.
    I know H.R. 2049 attempts to change the longstanding 
practice of federal preemption. There have been scattered 
concerns in some industries that health and safety coverage by 
an agency other than OSHA is inadequate. I will be interested 
to hear from our witnesses how your proposed legislation would 
change the existing structure and if, indeed, it would be an 
improvement.
    With that, I look forward to the hearing today. Again, I 
thank the witnesses for appearing before us today, and I am 
eager to hear your testimony.
    [The prepared statement of Mr. Wilson follows:]

    Prepared Statement of Hon. Joe Wilson, Ranking Minority Member, 
                 Subcommittee on Workforce Protections

    Good morning. I would like to welcome our witnesses today and thank 
them for their testimonies. I look forward to our discussion.
    Before we begin, I believe it's important to provide some context 
for this morning's hearing. First, we all should recognize that the 
Occupational Safety and Health Act explicitly allows states to adopt 
workplace health and safety programs to cover state and municipal 
employees--a group brought into focus by our hearing today. Likewise, 
it's important to understand that--under current law--OSHA is able to 
inspect every worksite only once every 167 years, which--by any 
reasonable measure--is a clear sign that the agency has difficulty 
enforcing laws already on the books. In other words, its ability to 
take on a new layer of responsibilities, as some in Congress are 
looking to mandate, is questionable, at best. And finally, it can be 
argued that state and local regulators--not politicians or federal 
bureaucrats in Washington--are more attuned to the work environments in 
their unique states and communities.
    Taken together, what does all of this mean? At a minimum, I believe 
it means that any attempts out of Washington to expand OSHA's 
jurisdiction raises significant questions as to how this expansion will 
be funded, as well as those of federalism and deference to communities' 
rights and interests. Furthermore, I believe it means that rather than 
expanding the jurisdiction of an already overburdened federal OSHA, 
Congress should be incentivizing states to adopt workplace health and 
safety programs of their own instead of forcing unfunded mandates upon 
them or asking OSHA to extend itself even further.
    My home state of South Carolina is what is known as a ``state plan 
state.'' My state--and 20 others--have submitted comprehensive health 
and safety plans that meet or exceed federal standards to the Secretary 
of Labor, who--in turn--verified and approved them. As a result, these 
states receive 50 percent of their enforcement costs from federal OSHA 
and--consequently--accept responsibility for regulating the workplace 
health and safety of both private and public sector employees. In 
short, the state plan system works well to protect employees--
regardless of sector--and should be a key focus as Congress works to 
enact any reforms to federal health and safety laws.
    At this time, I would like to introduce an article for the record 
entitled, ``Regulatory federalism and workplace safety; evidence from 
OSHA enforcement, 1981-1995.'' This article highlights the good work 
done by state plan states. I would draw your attention to one of the 
article's conclusions, namely: ``The decentralized nature of state 
programs may give these states an advantage in preventing workplace 
accidents over federal regulators.''
    Given this, I hope that today's hearing focuses on how to encourage 
states to take delegation of safety and health regulations, rather than 
forcing additional federal mandates on states--mandates that may fail 
to adequately protect American workers at the end of the day. Just 
yesterday, I met with County council members and municipal officials 
assuring them I would work to prevent mandates on local governments.
    Before I conclude, Chairwoman Woolsey, I'd also like to briefly 
mention another aspect of this hearing: specifically, the pre-emption 
of other federal agencies for implementing safety and health plans for 
workers, also known as the so-called 4(b)(1) exemption. I know H.R. 
2049 attempts to change the long-standing practice of federal pre-
emption. There have been scattered concerns in some industries that the 
health and safety coverage by an agency other than OSHA is inadequate, 
and I will be interested to hear from our witnesses how your proposed 
legislation would change the existing structure and if--indeed--it 
would be an improvement.
    With that, I look forward to this hearing, and again, I thank the 
witnesses for appearing before us today. I am eager to hear your 
testimony.
                                 ______
                                 
    Chairwoman Woolsey. Thank you, Mr. Wilson.
    Without objection, I now recognize Representative Rob 
Andrews of the 1st District of New Jersey, a member of the full 
Education and Labor Committee and chair of the Subcommittee on 
Health, Employment, Labor and Pensions, for 5 minutes to make 
an opening statement.
    And, Mr. Andrews, you are welcome to stay for questions if 
you would like and be part of it.
    Mr. Andrews. Thank you. Thank you very much, Madam 
Chairwoman, and I thank you and the ranking member for your 
courtesy in giving me this opportunity to express my thoughts 
on the topic on which I care deeply.
    I thank you, Madam Chairwoman, for being an aggressive and 
dynamic chairwoman in the few weeks that you have sat and held 
the gavel. I think you have done more in a few weeks on these 
topics than some of your predecessors did in a decade and a 
half, and I am very grateful to you for your leadership.
    This morning, one American got up and went to work on a 
cement mixer, and the person who lives next door to him got up 
and went to work on the back of a trash truck working for the 
town in which they live.
    If, God forbid, today there is an accident on the cement 
mixer, the full power of the OSHA statute would be there to 
either prevent or protect the worker or deal with the 
consequences of that accident on the cement mixer. But if there 
is a looming problem on the trash truck or if, God forbid, 
there is an accident on the trash truck, the public worker has 
no recourse and no protection to speak of. It has virtually 
none in 26 states.
    Now why is it? Why should the law draw a distinction 
between whether you work on the back of a cement mixer for a 
private contractor or on the back of a trash truck for the 
county? I do not think it should make that distinction, and the 
purpose of the legislation I have introduced and that Ms. 
Woolsey has been so kind to work with us on is to eliminate 
that distinction.
    Now I have heard three good arguments--or three arguments, 
I should say--as to why we should continue to have this 
distinction in the law, that the law should protect the person 
working on the back of a cement mixer but not on the back of 
the trash truck.
    The first argument is that, well, it will raise taxes by 
too much and cost local governments too much money to impose 
this requirement on local governments. I have not seen a shred 
of evidence that bears out that conclusion in any of the states 
that have aggressively and proactively protected worker safety, 
and I would invite any of the panelists who would disagree to 
tell me why that is not true.
    I think the opposite is true. I think that employers that 
are diligent and careful in protecting their workers spend less 
money on workers comp claims, on health-care claims, on 
litigation, on all the other problems that come with workplace 
injury. I think the evidence is rather compelling--the 
insurance industry would back this up--that employers who are 
careful about worker safety are more profitable and more 
efficient and spend less money than those who do not. I think 
it is good business to be careful about your workers' health.
    Second is the argument that somehow extending OSHA 
protection to public workers would interfere with state 
sovereignty. We feel very strongly about state sovereignty and 
the rights of state governments to make decisions that they 
view as being in the best interests of their constituents, but 
I think there are some rights which trump that.
    I think there are some basic protections that every 
American ought to have, whether they live in Nevada or New 
Jersey, whether they live in California or Florida, and the 
idea the safety of your workplace is a function of the accident 
of your ZIP Code makes no sense to me. I think someone's life 
is equally worth protecting in Nevada as it is in New York or 
California as it is in Florida, and I think there should be a 
basic and uniform protection of that.
    The third argument I have heard is that, well, there really 
has not been much of a problem, that this is a bill that is a 
solution in search of a problem. I wish that were true. I wish 
that were true.
    The last time this Congress paid any serious focus on the 
issue of extending OSHA protections to public employees was in 
the early 1990s. Since then, virtually no attention has been 
paid to this subject and nothing has been done, and since then, 
8,600 public workers have lost their lives. Were all 
preventable? I doubt it. Were some preventable? I am sure. I am 
sure.
    And I think if we had had sufficient protections in states, 
we would not have had that problem and that situation for so 
many families.
    I also wanted to add a word of personal appreciation to 
Mrs. Jones for her presence here today. I think that the mark 
of true character is someone who deals with tragedy not by 
dwelling on the hurt and the loss, but by moving on to 
something positive and doing something as a positive response 
to tragedy, and your statement here today, Mrs. Jones, on 
behalf of Clyde Anthony Jones and others like him, I think is a 
measure of your character, and we appreciate it very, very 
much.
    So I understand there are arguments about the taxes and 
spending and there are arguments about interference with state 
sovereignty and arguments about the scope of the problem, but I 
think the record is very clear that employers who are careful 
about workers' safety spend less money than those who are 
careless.
    I think the record is very clear that there are certain 
protections that should not be an accident of where you live 
and should be a function of your standing as an American 
worker, and I unfortunately think the record is very clear that 
there is a very significant problem: 8,600 public workers 
killed since 1992, 520 in 2005 alone.
    So I, again, thank the chairwoman and the ranking member 
for their courtesy and their indulgence. I thank the panelists 
for being here today, and I would urge this Congress would take 
expeditious and wise action on this matter.
    Thank you, and I yield back.
    Chairwoman Woolsey. Thank you, Congressman.
    Now I am going to introduce our wonderful panel of 
witnesses starting with Mr. Fillman and going in order that you 
will present.
    David Fillman is the executive director of AFSCME Council 
13 in Pennsylvania and is a vice president at AFSCME. He 
previously worked at the Pennsylvania Department of 
Transportation and has several years of experience in the areas 
of worker safety and health. Mr. Fillman is a graduate of 
Springfield High School in Montgomery, Pennsylvania.
    Casey Jones is the brave widow of Clyde Jones, a municipal 
employee who died in an explosion at the Bethune Wastewater 
Treatment Plant in Daytona Beach, Florida, in 2006. She is a 
certified surgical technologist and is a graduate of Daytona 
Beach Community College.
    David Sarvadi is an attorney at Keller and Heckman in 
Washington, D.C., and represents clients in the areas of 
occupational health and safety, toxic substance management, 
pesticide regulation, employment law and product safety. He 
attended Pennsylvania State University and received a master's 
in science from the University of Pittsburgh Graduate School of 
Public Health. Mr. Sarvadi also holds a law degree from George 
Mason University.
    Jon Turnipseed, from my home state of California, is the 
safety program manager for the City of San Bernardino Municipal 
Water Department in California. Today, he is testifying on his 
own behalf as well as on behalf of the American Society of 
Safety Engineers. He is a professional member of that 
organization. He has over 30 years of management experience 
working for large government contractors and local government 
agencies and is a certified safety professional. Mr. Turnipseed 
spent 20 years in the United States Air Force and retired as a 
major. He received his bachelor of business administration from 
the University of Iowa and a master's in science from Central 
Missouri State University.
    I welcome all of you.
    Before you get started, let's talk about the lighting 
system. For those of you who have never testified before the 
committee, let me explain how it all works. We have a 5-minute 
rule. Everyone, including members, is limited to 5 minutes of 
presenting and questioning. So the green light is illuminated 
when you begin to speak, and it is right there in front.
    When you see the yellow light, it means you have 1 minute 
remaining. You probably should start wrapping up. And when you 
see the red light, it means your time has expired and you need 
to conclude your testimony. We are not going to cut you off 
mid-sentence or mid-thought, but just be aware that that is our 
5-minute rule. Usually, you will be able to complete some 
thoughts or some new ideas during the question-and-answer 
period.
    So be sure to turn on your microphones when it is your turn 
to speak and speak right into the microphone. Otherwise, we 
will do a lot of gyrations up here and you will just save 
yourself a lot of heartache.
    So we will now hear from Mr. Fillman, our first witness.

  STATEMENT OF DAVID FILLMAN, EXECUTIVE DIRECTOR, COUNCIL 13, 
  AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES

    Mr. Fillman. Thank you, Chairwoman Woolsey. My name is 
David Fillman. I am the executive director of Council 13 of the 
American Federation of State, County and Municipal Employees.
    I am honored to represent more than 65,000 public employees 
in the Commonwealth of Pennsylvania today, and as an 
international vice president with AFSCME, I speak for more than 
1.4 million public employees nationwide who are employed by 
states and their counties, townships, boroughs, cities, and 
school districts as well as private and public nonprofit health 
and human service facilities.
    I would like to have my complete statement placed in the 
record.
    Chairwoman Woolsey. Without objection.
    Mr. Fillman. Our membership is extremely diverse and is 
made up of hardworking members who provide vital public 
services to the citizens of Pennsylvania in the areas of 
transportation, health care, public safety, public works, water 
and wastewater treatment, corrections, and education, just to 
name a few.
    But despite their various backgrounds, our members have two 
things in common: number one, they confront serious and even 
life-threatening dangers on the job every day; second, they are 
not covered by our nation's most basic workplace safety 
protections required by the Occupational Safety and Health Act, 
or OSHA.
    OSHA was passed in 1970 to provide American workers with 
safe workplaces, but there was a catch. The law excluded state 
and local government workers. Today, more than 35 years later, 
only 21 states have exercised their option to operate their own 
state OSHA programs. Three other states--New York, Connecticut 
and New Jersey--have a federally approved plan for their public 
workers, and responsibility for the private sector falls under 
the federal OSHA laws.
    That means that 26 states do not have a federally approved 
program in place to cover workplace safety for public 
employees. That translates to more than 8 million public-sector 
workers. There are a handful of states, such as Illinois and 
Wisconsin, which have state laws that provide similar 
protection to their public workers, but which are not federally 
approved programs.
    In a few minutes, you will hear from Ms. Casey Jones who 
lost her husband. Mr. Jones' employer was not required to 
follow OSHA rules that could have prevented his death, and even 
more tragically, the state law that was enacted in 1982 to 
assist employers to make their workplaces safe had been 
repealed by Governor Jeb Bush and the Florida legislature in 
1999.
    Public employees in the other Gulf Coast states of 
Louisiana, Alabama, Mississippi, and Texas also work without 
OSHA protection. That means that public workers who responded 
to hurricanes Katrina and Rita, men and women who performed 
heroically, were not entitled to any workplace safety 
protections whatsoever during the disasters, in their 
aftermath, or while they continue to rebuild those devastated 
regions.
    I do not have to look any further than where I live to 
explain what the lack of OSHA protection means. Neither the 
Commonwealth of Pennsylvania nor local governments are required 
to follow OSHA standards. For example, workers who must go into 
a deep trench to repair a water main break do so without their 
employers having to follow specific procedures or use equipment 
to prevent the trench from collapsing.
    Having OSHA coverage for all public employees is not just 
an issue of fairness; it is a matter of life and death. With 
the exception of few occupations, such as law enforcement and 
firefighters, the general public and their elected officials 
have little or no idea about the dangers faced by state and 
local government workers.
    A great deal of attention was paid, and rightfully so, to 
the Sago mine disaster that killed 12 miners. By contrast, 
public employees are usually killed one at a time and with 
little, if any, public notice.
    According to a U.S. Bureau of Labor Statistics report, from 
1992 to 2001, 6,455, workers at the federal, state and local 
levels lost their lives on the job. About half of these 
fatalities, 3,227, occurred in local government, while 1,224 
state government workers died on the job during this period.
    AFSCME members, like other public employees, have died 
under horrible and gruesome circumstances, such as suffocating 
in a confined space, being fatally assaulted by patients or by 
inmates, or developing cancer from exposure to asbestos.
    I also want to make you aware of the many workers who have 
died across the country while maintaining our nation's roads 
and highways. More than 100 employees of the Commonwealth of 
Pennsylvania alone, members that I represent here today, lost 
their lives while working on the state's highways.
    Hundreds of thousands of public employees are injured or 
made ill each year. For some types of hazards, such as 
workplace violence, public workers are at much higher risk than 
private-sector employees. According to a 2005 BLS study, 32 
percent of all state government workplaces and 15 percent of 
local governments reported some form of violence within the 
preceding 12 months of the survey, as compared to only 5 
percent for private industry.
    In conclusion, I submit to the members of this Committee 
that our nation's failure to provide the most basic rights to a 
safe workplace for over 8 million working people--the people 
who protect and serve the citizens of this nation, even in its 
darkest hours--is an outrageous injustice.
    To correct this injustice, it is imperative that you in 
this room support prompt and decisive legislative action.
    Thank you very much.
    [The statement of Mr. Fillman follows:]

 Prepared Statement of David Fillman, Executive Director, Council 13, 
 American Federation of State, County and Municipal Employees (AFSCME)

    Thank you. My name is David Fillman, and I am the Executive 
Director of Council 13 of the American Federation of State, County and 
Municipal Employees. I am honored to represent more than 65,000 public 
employees in the Commonwealth of Pennsylvania today. And as an 
International Vice President with AFSCME, I speak for more than 1.4 
million public employees nationwide, who are employed by states and 
their counties, townships, boroughs, cities, and school districts, as 
well as private and public non-profit health and human service 
facilities.
    Our membership is extremely diverse, and is made up of hard-working 
members who provide vital public services to the citizens of 
Pennsylvania, in the areas of transportation, health care, public 
safety, public works, water and wastewater treatment, corrections, and 
education, just to name a few.
    But despite their various backgrounds, our members have two things 
in common. Number one, they confront serious and even life-threatening 
dangers on the job each and every day. Second, they are not covered by 
our nation's most basic workplace safety protections required by the 
Occupational Safety and Health Act (OSHAct). Let me repeat the second 
point because so few people, including too many elected officials at 
the national, state, and local levels, even realize that millions of 
public employees across this country are not covered by OSHA.
    The Occupational Safety and Health Act was passed in 1970 to 
provide American workers with safe workplaces. But there was a catch. 
The law excluded state and local government workers. Today, more than 
35 years later, only 21 states have exercised their option to operate 
their own state OSHA programs. Three other states, New York, 
Connecticut and New Jersey, have a federally approved plan for their 
public workers, and responsibility for the private sector falls under 
the federal OSHA laws.
    That means that 26 states do not have a federally approved program 
in place to cover workplace safety for public employees. That 
translates to more than 8 million public sector workers. There are a 
handful of states, such as Illinois and Wisconsin, which have state 
laws that provide similar protection to their public workers, but which 
are not federally approved programs.
    In a few minutes, you will hear from Mrs. Casey Jones, who lost her 
husband. Mr. Casey's employer was not required to follow OSHA rules 
that could have prevented his death. And even more tragically, the 
state law that was enacted in 1982 to assist employers to make their 
workplaces safe, had been repealed by Governor Jeb Bush and the Florida 
legislature in 1999.
    Public employees in the other Gulf Coast states of Louisiana, 
Alabama, Mississippi, and Texas also work without OSHA protection. That 
means that the public workers who responded to hurricanes Katrina and 
Rita--men and women who performed selfless acts of heroism--were not 
entitled to any workplace safety protections whatsoever, during the 
disasters, in their aftermath, or while they continue to rebuild those 
devastated regions.
    I do not have to look any further than where I live to explain what 
the lack of OSHA coverage means. Neither the Commonwealth of 
Pennsylvania nor local governments are required to follow OSHA 
standards. For example, workers who must go into a deep trench to 
repair a water main break or for some other reason do so without their 
employers having to follow specific procedures or use equipment to 
prevent the trench from collapsing. When public employees perform the 
same job just across the border to the east in New York or New Jersey, 
or to the south in Maryland, their public employers are required by 
their state OSHA laws to take precautions to prevent their workers from 
being buried alive. This situation is not fair, and it is not right. 
Having the right to a safe job should not depend on the state in which 
public employees work.
    Having OSHA coverage for all public employees is not just an issue 
of fairness; it is a matter of life and death. With the exception of a 
few occupations such as law enforcement or firefighters, the general 
public and their elected officials have little or no idea about the 
dangers faced by state and local government workers. At the beginning 
of 2006, a great deal of attention was paid, and rightfully so, to the 
Sago mine disaster that killed 12 miners. By contrast, public employees 
are usually killed one at a time, and with little, if any, public 
notice. According to a U.S. Bureau of Labor Statistics (BLS) Report 
entitled Fatal Occupational Injuries to Government Workers, 1992-2001, 
6,455, workers at the federal, state and local levels lost their lives 
on the job. About half of these fatalities (3,227) occurred in local 
government, while 1,224 state government workers died on the job during 
this period. According to the most recent BLS data available, in 2005 
another 520 government workers died, of which 107 were state and 300 
were local government workers.
    The statistics are important to show the scope of the problem, but 
we must remember that each number is a worker who has died and 
suffered, and left loved ones behind to cope with the loss. AFSCME 
members, like other public employees, have died under horrible and 
gruesome circumstances such as suffocating in a confined space, being 
fatally assaulted by patients in mental health facilities or by inmates 
in prisons, or developing cancer from exposure to asbestos. I also want 
to make you aware of the many workers who have died across the country 
while maintaining our nation's roads and highways. More than 100 
employees of the Commonwealth of Pennsylvania alone, members that I 
represent here today, lost their lives while working on the state's 
highways. Highway work is the most dangerous work in the Commonwealth, 
which I learned as a young employee of PennDOT, the Pennsylvania 
Department of Transportation.
    Public awareness campaigns have helped to make highway work safer 
by educating drivers to slow down and drive more carefully in work 
zones. But to this day, no enforceable workplace safety law exists for 
that highly dangerous occupation--or for the other public service 
occupations throughout Pennsylvania.
    Fatalities are but the tip of the iceberg. Hundreds of thousands of 
public employees are injured or made ill at work each year. For some 
types of hazards, such as workplace violence, public employees are at 
much higher risk than private sector employees. According to a 2005 BLS 
2005 study, 32 percent of all state government workplaces and 15 
percent of local governments reported some form of violence within the 
preceding 12 months of the survey, as compared to five percent for 
private industry.
    I came here to describe why OSHA coverage for all public employees 
is so important. However, before I end my remarks, I also feel 
compelled to say that we deserve coverage that translates into real 
safety and health protection for our members, and all other workers in 
this country. For the past six years, OSHA has failed miserably to meet 
its mandate to protect workers. Enforcement of OSHA rules has taken a 
back seat to voluntary compliance and alliances with companies and 
trade associations. OSHA has failed to issue new and needed standards. 
It even withdrew its proposed tuberculosis rule, and now public health 
officials are warning us about a super drug resistant strain of TB that 
has emerged. OSHA just recently denied AFSCME's petition for an 
emergency standard for pandemic influenza preparedness, stating they 
could not take action because no human pandemic influenza virus exists 
at this time. OSHA should know that the time to prepare for a crisis is 
before it occurs and compel employers, if necessary, to take action in 
advance of emergency, not during or after a catastrophe has happened.
    Some state OSHA programs have tried to address part of the massive 
void left by federal OSHA. Within the past couple of years, New York 
State passed a workplace violence prevention law, Washington State 
passed a safe patient handling bill, and California issued a standard 
to protect workers from exposure to heat. Federal OSHA should be 
addressing these and many other hazards.
    In conclusion, I submit to the members of this Committee that our 
nation's failure to provide the most basic rights to a safe workplace 
for over 8 million working people--the people who protect and serve the 
citizens of this nation, even in its darkest hours--is an outrageous 
injustice.
    To correct this injustice it is imperative that you, in this room, 
support prompt and decisive legislative action. Thank you.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    Ms. Jones?

STATEMENT OF CASEY JONES, ON BEHALF OF THE AMERICAN FEDERATION 
            OF STATE, COUNTY AND MUNICIPAL EMPLOYEES

    Ms. Jones. Good morning. My name is Casey Jones, and I am 
from Daytona Beach, Florida. I would like to thank the chairman 
and members of the subcommittee for inviting me to testify 
today.
    I have a larger statement that I would like to have placed 
in the record.
    Chairwoman Woolsey. Without objection.
    Ms. Jones. On January 11, 2006, my husband and best friend, 
Clyde Jones, was taken from me and the children, family, 
friends and community who loved him. He was only 40 years old.
    He went to work one morning for the city that he loved and 
to a job that he loved. He never came home.
    He was instructed by the City of Daytona Beach to repair 
buildings damaged by the hurricanes of 2004. The roof, which 
was to be removed, was directly over tanks holding highly 
flammable and dangerous gases which escaped through venting 
pipes at the wastewater treatment where he worked.
    Clyde was not a roofer. He worked in general maintenance. 
He had no knowledge of dangers associated with these tanks that 
he had worked around for the last 7 years because there had 
never been any safety meetings for him or other workers.
    He did not know of the dangerous gases which were escaping. 
He was never advised such a situation existed, nor were there 
any warning signs or precautions given to him.
    He was instructed to go with the other workers and use 
lighted torches to begin cutting away the torn metal to start 
the repair process. My husband was in a crane that was used to 
lift the metal pieces that were cut away.
    As the lighted torch cut through the metal, the gases 
coming from the vent exploded into a horrible fireball. The 
tanks and pipes broke, and hot flammable gases were directed 
into the cab where my husband was severely burned.
    He was transported to the hospital where I work. The 
doctors who knew him cried uncontrollably because of their 
empathy for the unbearable pain they knew he was in. Clyde was 
burned over 90 percent of his body with third-degree burns.
    He was stabilized at the hospital and then airlifted to 
Orlando Regional Medical Center 60 miles away to the burn unit. 
Clyde suffered through a horrible cleaning process that finally 
showed the severity of his burns.
    When Clyde was brought into his room and I had the 
opportunity to see him once again, I was devastated. I spent 
several hours with him to comfort him and promised that I would 
be strong for him and would be there for him through his 
recovery.
    I received a call the next morning from the doctor 
informing me that Clyde had no chance of recovery and they were 
keeping him on life support until the family could say their 
goodbyes.
    The city has shown no mercy.
    There were no safety meetings in advance. There was no 
review or written plan as to how to safely proceed that day. 
The City of Daytona Beach, like so many other governmental 
agencies, did not have to abide by OSHA standards.
    Thus, not having to comply, no one cared enough to 
voluntarily comply. Daytona Beach did not even have a safety 
officer on payroll at the time. No one required them to do so. 
They cut the budget for that position when the law did not make 
such a position mandatory.
    The government that my husband loved and served did 
nothing, absolutely nothing, to provide him with a safe 
workplace. They simply ignored responsibility for his safety 
because they did not have to provide a safe work environment as 
a city government.
    My husband's life was not the only one taken that day. 
Another co-worker died, and another still suffers with terrible 
burn injuries.
    The state that he also loved ignored our cry for help. A 
bill was presented to the State House of Representatives in 
Florida which would have required local governments to meet 
minimum OSHA safety requirements. The bill never made it to the 
floor.
    The Chemical Safety Board responsible for investigating 
this tragedy found numerous basic safety issues which were 
ignored due to the lack of any requirement that the city adhere 
to such standards. It concluded that had any of these basic 
safety standards been in place, my husband would be alive 
today.
    You cannot help my husband or others that suffered, but you 
can help to save lives and the devastation caused by horrific 
injuries to the future victims and future families. I am only 
here for that purpose. I am here hoping that my husband's life 
was not taken in vain.
    If you would know the person that Clyde was, you would 
realize we cannot afford to lose another woman or man like him. 
He is the backbone of what makes our country work.
    Clyde served in the U.S. Army in the Gulf War. At 6 feet 
and 270 pounds, he was a very big man. He worked hard every 
day. As big as he was, his heart was even larger. His heart 
would break even more if he knew that he died senselessly, with 
no one wanting to prevent something like this from happening 
again.
    My heart breaks as I speak. I know that he did not have to 
die. My heart breaks for his children. They will never 
understand why he died. My heart breaks for those that lost 
families, friends in similar situations all needlessly, all so 
senselessly.
    I am now sitting in front of my leaders of my country. I 
never dreamed I would sit here at such a place. Only you can 
help make sure this does not happen to others.
    Thank you for the opportunity to speak.
    [The statement of Ms. Jones follows:]

Prepared Statement of Casey Jones, on Behalf of the American Federation 
           of State, County and Municipal Employees (AFSCME)

    Good Morning. My name is Casey Jones and I am from Daytona Beach, 
Florida. I would like to thank the Chairman and members of the 
Subcommittee for inviting me to testify today.
    On January 11, 2006, my husband and best friend, Clyde Jones, was 
taken from me and the children, family, friends and community who loved 
him. He was only 40 years old. He went to work one morning for the City 
that he loved to a job that he loved. He never came home.
    Clyde put his life on the line for you and me and countless others 
while on duty with the U.S. Army in the Gulf War. We trusted our lives 
to him, but the government which he served so proudly did not place his 
life in their trust in any fashion whatsoever.
    He was instructed by the City of Daytona Beach to repair a building 
damaged by the hurricanes of 2004. The roof, which was to be removed, 
was directly over tanks holding highly flammable and dangerous gases 
which escaped through venting pipes at the waste management plant where 
he worked.
    Clyde was not a roofer. He worked in general maintenance. He had no 
knowledge of the dangers associated with these tanks he worked around 
every day for the last 7 years, because there had never been any safety 
meetings for him and other workers. He did not know of the dangerous 
gases which were escaping because he was never advised such a situation 
existed, nor were there warning signs or other precautions given to 
him.
    He was instructed to go with other workers and using lighted 
torches, they began cutting away the torn metal roof to start the 
repair process. My husband was in a crane which was used to lift the 
metal pieces as they were cut. As the lighted torch cut through the 
metal, the gases coming from the vent exploded into a horrible 
fireball. The tanks and pipes broke and hot flammable gases were 
directed into the cab of the crane, where my husband was severely 
burned. He was transported to the hospital where I work. The doctors 
who knew him cried uncontrollably because of their empathy for the 
unbearable pain he was in. Clyde was burned over 90 percent of his body 
with 3rd degree burns. He was stabilized at the hospital and then air-
lifted to Orlando Regional Medical Center 60 miles away to the burn 
unit. Clyde suffered through a detriment cleaning process that finally 
showed the severity of his burns. When Clyde was brought to his room 
and I had the opportunity to see him once again I was devastated. I 
spent several hours with him to comfort him and promised that I would 
be strong for him and would be there throughout his recovery. I 
received a call the next morning from the doctor informing me that 
Clyde had no chance of recovery and they were keeping him on life 
support until the family could say their goodbyes. The City has shown 
no mercy.
    Every day countless men and women go to work with nothing to 
protect them from the harm that faces them from doing their jobs as 
they are instructed. There were no safety meetings in advance of the 
work that day. There was no review or even a written plan as to how to 
safely proceed. There was no safety precautions taken such as spark 
arresting mats or other devices required in private industry to be used 
whenever lighted torches are part of the work conditions. There were 
numerous regulations in place through OSHA, and had Clyde been working 
for private industry, these regulations would have likely saved his 
life and prevented the explosion from ever occurring. However, none of 
these regulations or safety considerations were in place because the 
City of Daytona Beach, like so many other governmental agencies, did 
not have to abide by OSHA standards. Thus, not having to comply, no one 
cared enough to voluntarily comply. Daytona Beach did not even have a 
Safety Officer on payroll at the time, because no one required them to 
do so. They cut the budget for that position when the law did not make 
such a position mandatory.
    The government that my husband loved and served did nothing, 
absolutely nothing to provide him with a safe place to work. They 
simply ignored any responsibility for his safety because they did not 
have to provide a safe work environment as a city government. When 
people hear this, the sounds of such words echo with disbelief.
    I still cannot believe this could happen in a world wrecked by the 
lessons of poor preparation and the need to vigilantly protect one 
another at all costs.
    My husband's life was not the only one taken that day. Another co-
worker died and another still suffers with terrible burn injuries.
    Only you can help. Sadly, cities and other smaller governmental 
agencies will not take action to save lives unless they are told they 
must do so. The budget is more important to the city that the people 
who work for the city.
    Only you can help. The state that he loved has also ignored the cry 
for help. A bill was presented to the State House of Representatives in 
Florida which would have required local governments to meet minimum 
OSHA safety requirements. The bill never made it to the floor. The 
safety of local governmental workers who make up such a large part of 
the work force is not a priority in the State of Florida at the present 
time.
    Only you can help. The Chemical Safety Board, responsible for 
investigating this tragedy, found numerous basic safety issues which 
were ignored due to the lack of any requirement that the City adhere to 
such standards. It concluded that had any of these basic safety 
standards been in place my husband would be alive today. They met in a 
public forum to present their findings. Important members of the 
community were present. They pleaded for action. None was taken. Only 
you can help.
    You can not help my husband or the others that have suffered but 
you can help to save lives and the devastation caused by horrific 
injuries to the future victims and future families. I am here only for 
that purpose. I am here, hoping that my husband's life was not taken in 
vain. If you will listen to my story. If you would only know the person 
that Clyde Jones was, you would realize that we cannot afford to lose 
another man or woman like him. He is the backbone of what makes our 
country work. At over 6 feet and 270 pounds, he was a very big man. He 
worked hard every day. He carried a lot of people's needs on his broad 
shoulders. As big as he was, his heart was even larger. His heart would 
break even more if he knew that he died, senselessly, with no one 
wanting to prevent something like this from happening again.
    My heart breaks as I speak. I know that he did not have to die. My 
heart breaks for his children. They will never understand why he died. 
My heart breaks for those that have lost family and friends in similar 
situations, all so needlessly. All so senseless.
    I am now sitting in front of the leaders of my country. I never 
dreamed I would sit in such a place. I never dreamed I would have the 
courage to speak these words. I am honored to be here on behalf of my 
husband and so many others. I pray you will take on the responsibility 
that others have avoided taking. I thank you from the bottom of my 
heart for letting me speak today. God bless each one of you.
    Only you can help make sure this does not happen to others.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    Mr. Sarvadi?

STATEMENT OF DAVID G. SARVADI, ATTORNEY, KELLER AND HECKMAN LLP

    Mr. Sarvadi. Thank you, Madam Chairman. My name is David 
Sarvadi. I am an attorney and also a certified industrial 
hygienist, which, to those of you who do not know, is one of 
the two professions that works on workplace safety, and I have 
been doing this now for about 35 years.
    These kinds of workplace tragedies affect everybody, not 
just the families and the immediate friends of the victims. I 
have seen numerous cases where not just the employees, but the 
managers and the families of those managers, get very, very 
seriously affected by the emotional trauma that is associated 
with it, and we certainly should expect our governments to be 
exemplary, to be models in terms of workplace health and 
safety.
    In regard to the proposal to expand OSHA coverage and to 
add state and local employees to the coverage under the 
Occupational Safety and Health Act, regardless of whether we do 
it with a mandatory requirement or if we leave it to the states 
to do it on their own, we should expect them to do it with the 
same degree of earnestness and attention that the private 
sector does.
    I think my experience with state and local government 
activities and a little bit of the research that I have done on 
the topic shows that in the states that are not now covered by 
state plans, a number of them have statutory requirements 
mandating that their local governments as well as the state 
governments comply either with general safety and health 
provisions in the state law or specifically with the 
Occupational Safety and Health Act and its implementing 
regulations.
    One of the things that is undoubtedly true is that even 
where we have coverage under the Occupational Safety and Health 
Act, having that coverage does not guarantee that compliance 
will occur, and compliance does not guarantee that safety 
results. My experience with this shows that you can be in 
compliance with lots of regulations and still have safety 
hazards and activities on the job that result in great tragedy.
    So let's not lose sight of the fact that while the 
regulations are important in identifying the kinds of things 
that generally need to be done to try to prevent safety and 
health hazards, it is the responsibility of everybody involved, 
both the managers as well as the employees, to take the steps 
necessary to protect themselves.
    The second issue I wanted to bring to the attention of the 
committee is the issue of whether or not coverage is going to 
be allowed. I took a quick look at the Supreme Court decisions 
on imposition of federal employment mandates on state and local 
governments, and I think it is fair to say at this point it is 
not clear how the Supreme Court would end up.
    They have gone back and forth about it over the last 
couples of years, and I think it might be better if we avoided 
a constitutional issue over this by trying maybe a different 
approach to encouraging the states to participate.
    It is true that the current statute provides some incentive 
to the states to adopt a comprehensive program and it provides 
some funding, but it seems to me that perhaps a system of 
education and grants and other kinds of assistance might move 
things along in some of the states that have not been as 
aggressive as perhaps they should be.
    I think the other point that I wanted to make is that the 
preemption issue is one that we really need to keep a focus on 
and maybe from a little bit different perspective here. One of 
the things that Congress does when it passes statutes and 
assigns responsibility to various agencies is that it expects 
those agencies to develop expertise in particular areas, and so 
if we have the Federal Aviation Administration responsible for 
aviation safety, for example, it is unlikely that OSHA is ever 
going to get the kind of expertise in that area that the FAA 
has.
    So I think it is important to keep in mind that if we are 
going to deal with preemption, I do not think the proposed 
language is going to help very much because it is going to put 
an overlay of having OSHA make a judgment about whether the 
existing regulation by that other agency is as effective as 
OSHA standards, and not having the expertise that the other 
agency has, I am not sure that they are going to be able to 
make the judgment correctly.
    Then having a procedure for appeals and all of the rest of 
that--we know what is happening with OSHA's current regulatory 
process and how difficult it is to get regulations through. I 
do not think adding another layer of bureaucracy is the right 
way to go on that regard.
    And, Madam Chairman, I would like to have the written 
document that I submitted earlier entered into the record as 
part of my written statement.
    [The statement of Mr. Sarvadi follows:]

 Prepared Statement of David G. Sarvadi, Attorney, Keller and Heckman 
                                  LLP

    Good morning. Mr. Chairman, Members of the Committee, and invited 
guests, thank you for the opportunity to participate in this important 
proceeding.
    My name is David Sarvadi. I am an attorney with the Washington, 
D.C., law firm of Keller and Heckman LLP, and I am here to comment on 
H.R. 2049, the Protecting America's Workers Act. I also have some 
suggestions to improve the bill. At Keller and Heckman LLP, we 
represent and assist employers in meeting their obligations under a 
variety of federal and state laws, as well as international treaties 
and the laws of Canada, Europe, and many countries of the Far East. In 
particular, we help clients maintain progressive health and safety 
programs intended to protect their employees in their workplaces, as 
well as to comply with national and international health and safety 
laws and standards. The Occupational Safety and Health Act is the 
primary focus of our compliance assistance here in the U.S.
    I am appearing in this hearing on my own behalf, and any views 
expressed herein should not be attributed to my firm, my partners, or 
any other entities, including any of our clients. I am here solely as a 
person with a long standing interest in the topic of occupational 
safety and
    The two provisions that we are discussing today are the issue of 
whether the Occupational Safety and Health Act should be amended to 
modify the definition of the word, employer, to remove the exemption of 
state entities and their political subdivisions, as well as to extend 
coverage of the OSH Act to federal employees. The second question is 
whether the provision in the statute prohibiting the Secretary of Labor 
(SOL) from regulating workplace conditions where another federal agency 
has established regulations or standards applicable to those workplaces 
should be amended to require the Secretary to affirmatively determine 
that the protection provided is ``at least as effective as'' that 
provided by the OSH Act. In both cases, I believe the proposals are 
misdirected and therefore could be improved. Let me explain why.
    In 1968, when Congress was considering the proposal to regulate 
workplace safety and health at the federal level, there was some 
attention paid to the question of whether federal agency safety and 
health programs were up to snuff. Congressional proposals included 
provisions to make federal programs ``models'' including comprehensive 
safety and health programs, adequate, to provide ``safe and healthful 
workplaces and conditions of employment, consistent with the standards 
set under section 6,'' and to keep records of occupational injuries and 
illnesses and to report them to the Secretary. In the end, these 
provisions were adopted, but there was no provision calling for 
inspections of federal agencies or for providing for enforcement 
through some system of penalties. What the proposal would do is, in 
effect, adopt a penalty system for federal agencies.
    I do not believe that this should be necessary. Federal agencies 
have extensive programs and are required to comply with OSHA 
regulations by executive order. Having federal agencies paying 
penalties to the Treasury for OSHA violations would simply reduce the 
resources available for compliance. It is a non sequitor.
    With regard to states and political subdivisions, the Congress 
recognized limitations on its power to regulate internal state 
operations, including those related to the relationships between public 
employees and their state and local government employers. While not 
mandating compliance with OSHA standards, the legislation required 
those states that would operate a state plan of OSHA enforcement would 
have to simultaneously adopt a program of compliance and enforcement 
for state agencies and their political subdivisions. In doing so, 
Congress also appropriated money to be paid to those states who would 
take over the new programs.
    Much has been made of the argument that because the OSH Act does 
not cover states as employers that their employees are not protected. I 
do not believe that is entirely true. Of the 25 or so states that do 
not have state plans, a number of them have mandatory compliance 
requirements enacted under state law, while others require compliance 
with OSHA standards through executive order.
    Two things need to be remembered in deciding the public policy of 
attempting to impose federal OSHA requirements on the states. The first 
is that compliance with OSHA standards does not assure safety. Surely, 
many of OSHA's standards address physical changes in the workplace that 
prevent employees from being injured, such as machine guards and 
electrical design standards. But many accidents occur not when normal 
operations are occurring but during service, maintenance, and other 
non-routine operations. In those circumstances, the protective devices 
that are normally used may have to be removed to accomplish the task at 
hand. I do not believe it is possible to write regulations to address 
what are essentially infrequent occurrences. So what is necessary is 
for people to be trained in the kinds of hazards that they encounter on 
the job, to recognize them, and to take steps to prevent them. In some 
ways, this is more a problem of education than enforcement. Perhaps the 
current Administration's approach of outreach and education should be 
expanded and funding increased to address this perceived deficiency.
    Second, it is not clear that Congress has the authority to apply 
OSHA standards to the states by mandate. The Supreme Court has gone 
back and forth on the subject of regulation of workplace conditions 
between states and its employees. The question of the authority of 
Congress under the Commerce Clause to impose employment conditions on 
states has been debated in Supreme Court cases without clear 
resolution.
    Rather than engender a debate over the esoteric constitutional 
issue, I personally believe that it would be better to have Congress 
encourage states to comply by tying grants and other funds to state 
compliance programs. Similarly, it makes little sense to have a scheme 
in place in which scarce local government resources are used to pay 
federal penalties with the idea that public employers need a stick to 
force them into compliance. Most private employers comply with OSHA 
regulations because they are good citizens. I would hope that Congress 
believes our state and local governments do not need to be coerced into 
doing what is right for their employees. Similarly, I do not believe 
that an enforcement system involving penalties paid to the federal 
government makes good sense.
    Preemption adopted by another agency is at least as effective as 
compliance with the OSHA provisions at issue. That, in and of itself, 
does not seem offensive, except that it will impose a requirement on 
the Agency that will detract from its primary mission. Preemption is 
intended to preclude overlapping, redundant, or conflicting regulation 
by different arms of the federal government.
    In the proposal by requiring OSHA to review and make a 
determination that another agency's decisions provide equivalent 
protection, Congress is suggesting that OSHA has greater expertise on 
these topics than the agencies charged with their full-time regulation. 
As the Supreme Court acknowledged in the OSHA case of Martin, Secretary 
of Labor v. Occupational Safety and Health Review Commission (OSHRC), 
59 U.S.L.W. 4197, 111 S. Ct. 1171 (1991) (CF&I Steel), when OSHA 
develops a standard, it develops an expertise in the subject matter, 
both in the rulemaking process and in the enforcement context. That 
expertise entitles OSHA and other regulatory agencies to deference when 
interpreting the regulations they adopt.
    Similarly, if OSHA under the proposed language were to reject the 
balancing and judgments adopted by the sister agency on a subject about 
which they are acknowledged to have superior expertise, it would be 
substituting its lesser informed judgment for that of the agency 
charged by Congress with implementing the totality of the public 
policies addressed in the enabling legislation. In other words, the 
bill would allow OSHA to substitute its judgment over that of a more 
experienced and knowledgeable government organization.
    A few examples might suffice. Under current regulations of the 
Department of Transportation (DOT) a number of different regulatory 
programs address public health and safety. Among them are the programs 
addressing transportation of hazardous materials, safety. One example 
related to me of an OSHA regulation that reflects a lack of complete 
understanding of the technology regulated by DOT. Under OSHA 
regulations, the wheels of trucks that are being serviced by powered 
industrial trucks like for lifts must be ``chocked'' to prevent the 
trucks from rolling away from the dock. Under DOT rules, chocks are not 
required if the trailer is equipped with ``spring brakes'' that lock in 
place when air is removed from the braking system. Having to chock a 
truck takes time, and it is not clear that it is a necessary 
improvement from a safety perspective over the brake system DOT has 
approved. Under the present system, OSHA is theoretically precluded 
from enforcing its rule. This means a significant savings of time, 
especially where there are large numbers of trucks moving in and out of 
a distribution center, and in DOT's judgment without a cost in safety. 
Whether OSHA's rule improves safety is not clear.
    The change in the statute will add another layer of bureaucracy to 
an already burdened system. Making OSHA perform an affirmative 
determination, then subjecting it to challenge and judicial review may 
seem like a good idea from an administrative law perspective, but it 
implies that the initial determination by OSHA's sister agency is 
suspect. For employers, it creates greater uncertainty and confusion, 
which is the opposite of what any changes in the law should seek to 
achieve. Moreover, it increases complexity in an area that everyone 
already admits is ponderous and working badly, if at all. That is the 
rulemaking process.
    The current language of section 4(b)(1) is clear enough. The courts 
have fleshed out the Congressional mandate in a workable way, wherein 
the agency whose regulation would displace OSHA's must address the 
hazard OSHA's standard would address. Having done so, it is not a 
question of efficacy. Properly so, it seems to me, the present 
arrangement presumes that the enabling statute and the OSH act 
articulate. In this way, the full intent of Congress is acknowledged 
and implemented by the agency specifically charged with balancing these 
competing interests. The Supreme Court in the case of Chevron U.S.A. 
Inc. v. Echazabal, 122 S.Ct. 2045 (2002) noted that compliance with all 
laws is mandated, and that agencies are expected to make ``the 
substantive choices that agencies are expected to make when Congress 
leaves the intersection of competing objectives both imprecisely marked 
but subject to administrative leeway. * * *'' The provision 
contemplated will put OSHA--with less experience and knowledge on a 
topic--in the position of second-guessing the other agencies' 
decisions. It hardly seems an appropriate and efficient use of limited 
government resources.
Conclusion
    The proposals sound plausible on their surface but the reality is 
that they distract public attention from important work that remains to 
be done. Federal employees and those in states with approved state 
plans are already covered by OSHA requirements, and a number of the 
remaining states do so by state statute. Having OSHA oversight should 
be unnecessary and duplicative, and there is no justification for 
expansion of OSHA jurisdiction where states on their own are following 
OSHA's rules. The better approach would be for Congress to use its 
funding power to provide states with the incentive and the wherewithal 
to upgrade their public employee safety and health programs.
    Regarding preemption, the present system is working, and there is 
nothing to fix. Congress made the correct choice in 1969 when it 
recognized that some agencies with specific expertise in individual 
industries or activities are better equipped than OSHA to understand 
and implement safety programs. The provision would simply increase 
bureaucracy and inefficiency and is not a proposal designed to lead to 
better government programs.
                                 ______
                                 
    Chairwoman Woolsey. Without objection.
    Mr. Turnipseed?

STATEMENT OF JON TURNIPSEED, SAFETY SUPERVISOR, MUNICIPAL WATER 
                           DEPARTMENT

    Mr. Turnipseed. Chairwoman Woolsey and members of the 
subcommittee, I am Jon Turnipseed, and I am very pleased to be 
here today as a certified safety professional representing the 
30,000 members of ASSE. That is the American Society of Safety 
Engineers. They have asked me to speak as strongly as I can in 
support of providing occupational safety and health coverage 
for all public-sector workers no matter where they work.
    I am a public-sector employee. I am the safety supervisor 
for the City of San Bernardino Municipal Water Department in 
Southern California. I see every day how important safety and 
health coverage is for my fellow workers,
    And might I add that what Ms. Jones has gone through is 
something I work hard to prevent every single day. I am 
probably the only person in this room that has to worry about 
that every morning when I walk in, so my heart goes out to Ms. 
Jones. I know how tough this is.
    Most people are shocked to learn that in 26 states, public-
sector employees are not guaranteed the same level of workplace 
health and safety protection that private-sector workers have. 
They also do not understand the risk that many government 
workers face on their behalf. I have heard people say and tell 
me, ``Oh, working at the water works or the sewer plant cannot 
be that dangerous, is it?''
    Let me tell you it is. This is why San Bernardino hired me 
to make sure our workers properly follow OSHA standards.
    Water and wastewater workers enter hundreds of underground 
vaults, trenches, pits several hundred times every year. On any 
given day, the potential of a lethal atmosphere in a vault or 
similar confined space or trench collapse can kill them.
    On the street level, these same workers also have to direct 
traffic around their work zones. Water and wastewater treatment 
depends on electrical pumps and motors. So, every day, we face 
electrocution hazards.
    Potentially hazardous chemicals, like chlorine, are used 
throughout our industry. Operating large construction 
equipment, like earthmovers, backhoes and cranes, is always 
risky business. Office workers face everything from carpal 
tunnel injuries to assaults by angry customers.
    People fail to realize also that many of these public-
sector workers who are without health and safety coverage are 
the very first responders who rush in during a disaster to save 
their lives. Water and wastewater people are right in the 
middle of those disasters, too.
    My experience shows only one example of the need for 
public-sector coverage. People working in hundreds of other 
jobs within the government arena face similar risks and deserve 
the same protection they would enjoy if they were private-
sector workers, yet more than 8.5 million of these workers 
remain without occupational safety and health coverage that 
meets federal OSHA standards.
    We do understand the arguments against this: unfunded 
mandate; ``It costs too much''; ``We do not need it because we 
take good care of our public employees.'' In all honesty, these 
arguments just are not supportable.
    I understand the unfunded mandates as a public employee 
myself. I also struggle to keep on top of the ever-changing 
government regulations, yet I accept that my job is to do the 
best I can to care for the workers and the citizens of San 
Bernardino, and I do not shirk that task.
    As a safety professional, I soundly reject the idea that 
the cost of safety is just too much. Beyond meeting the moral 
duty to protect workers' lives, the best corporations in our 
country know that investing in safety and health pays off in 
improving the bottom line. No doubt taxpayers would like to 
know why their governments do not have a better understanding 
of the safety and health payoff to the bottom line.
    The numbers of deaths and injuries among public-sector 
workers contradicts the idea that they are taken of, and if a 
government entity's employees are well cared for, it would not 
cost them more to follow OSHA standards because the investment 
in meeting those standards would have already been made.
    I had this coverage, and I know that the San Bernardino 
Water Department is no less a good steward of taxpayers' hard-
earned dollars than a water department where coverage is not 
provided. In fact, the recent tragedy in a similar Daytona 
Beach department discussed here already today speaks volumes 
against each of these arguments.
    ASSE was the Chemical Safety Board's hearing on the 
accident in Daytona Beach. So were the plaintiffs' lawyers for 
the victims, and rightfully so. We do know what the tragedy 
cost in lives. No doubt the cost in taxpayer dollars to Daytona 
Beach for not meeting the most basic OSHA standards will be 
much higher than the investment in meeting those standards had 
they done it properly in the first place.
    Now ASSE's Florida members are working to see the Florida 
legislature provides public-sector coverage. We understand, 
though, that the surest way to achieve coverage for every 
public-sector worker is to amend the federal OSHA Act. ASSE 
fully supports provisions to do this in your bill, Chairwoman 
Woolsey.
    The time has come to be fair to all public-sector workers 
who risk their wellbeing for all of us. ASSE stands ready to 
help. Whatever questions the subcommittee has for me, I would 
be more than happy to answer.
    [The statement of Mr. Turnipseed follows:]

Prepared Statement of Jon Turnipseed, Certified Safety Professional, on 
       Behalf of the American Society of Safety Engineers (ASSE)

    Chairwoman Woolsey and Members of the Subcommittee: I am Jon 
Turnipseed, and I am pleased to be here today representing both my own 
views as a Certified Safety Professional and the views of the 30,000 
members of the American Society of Safety Engineers (ASSE). As a 
volunteer, I am a member of ASSE's Government Affairs Committee. In my 
professional capacity, I am a public sector employee serving as the 
Safety Supervisor for the City of San Bernardino Municipal Water 
Department in California. Although I work for a municipal government, I 
am grateful we are subject to inspections and civil penalties for 
violations of occupational safety and health laws, unlike the estimated 
8.5 million other public sector employees across the country who are 
not. Accompanying me today is Dave Heidorn, ASSE's Manager of 
Government Affairs and Policy.
    ASSE is the oldest and largest society of safety, health and 
environmental professionals in the world. Founded in 1911, ASSE's 
dedicated members include Certified Safety Professionals, Certified 
Industrial Hygienists, Professional Engineers, academicians, fire 
protection engineers, system safety experts, health professionals and 
an impressive collection of other disciplines. Our members are experts 
committed to excellence in the protection of people, property and the 
environment worldwide. The Society has thirteen practice specialties, 
including an active Public Sector Practice Specialty with members who 
have wide ranging expertise and knowledge in managing safety, health 
and environmental risks in every kind of public sector workplace.
    Based on the expertise and knowledge of our members, ASSE has long 
advocated the need to address the lack of occupational safety and 
health coverage for state and local government workers that now exists 
in 26 states and the District of Columbia. With the attention today's 
hearing brings to the issue, ASSE hopes that the reasons why millions 
of workers remain without OSHA coverage can quickly be resolved.
Government Workers Are Not Covered by OSHA
    Most people are shocked to find out that the workplace safety and 
health protections put in place by the Occupational Safety and Health 
Act of 1970 (OSH Act) apply only to private sector workers and not all 
state and local government employees. Under the OSH Act, states are 
allowed to run their own state OSHA programs in lieu of federal 
coverage of the private sector. These approved state OSHA programs must 
be at least as effective as the federal program and, unlike the federal 
Occupational Safety and Health Administration (OSHA), are required to 
cover both the private sector and their own state and local government 
workers.
    Twenty-one states and Puerto Rico have federally approved OSHA 
programs that cover public employees--Alaska, Arizona, California, 
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, 
New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, 
Vermont, Virginia, Washington, and Wyoming. Three states whose private 
sector workers are covered by federal OSHA--Connecticut, New Jersey, 
and New York, along with the Virgin Islands--have federally approved 
state programs that apply only to state and local government workers.
    Therefore, 26 states and the District of Columbia leave their state 
and local government workers unprotected by any federally approved 
occupational safety and health laws--Alabama, Arkansas, Colorado, 
Delaware, Florida, Georgia, Idaho, Illinois, Kansas, Louisiana, Maine, 
Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, 
North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, 
Texas, West Virginia, and Wisconsin. No pattern or underlying reason 
explains the lack of coverage. Larger and more populated states like 
Florida, Illinois and Texas join smaller, less populated states like 
Delaware, Montana and North Dakota in failing to give their workers the 
same protections private sector employees have in those states.
    These unprotected state and local government workers are the good 
people who keep our state, county and municipal governments functioning 
on a daily basis. They run the gamut from workers in high-risk jobs 
such as law enforcement and fire fighters to workers in low risk office 
jobs. They are the people who make sure that we all have safe water to 
drink, battle to keep our aging street infrastructure functional, make 
sure that our kids have decent parks, and keep our legal system up and 
running to fight crime. Most people are familiar with the hazards 
associated with working in high profile jobs such law enforcement and 
firefighting. The safety and health risks these people take every day 
to protect us go without saying. What this Subcommittee and the 
American people need to know are the largely hidden occupational safety 
and health hazards that many less well-known public sector workers face 
daily.
    In my own job, I make sure California OSHA regulations are followed 
to protect the people who provide drinking water and wastewater 
treatment for the city. When I tell people what I do, the typical 
comment is something like, ``Working at the water works and the sewer 
plant surely can't be that dangerous.'' On the contrary, the men and 
women I work with enter hundreds of underground vaults, trenches and 
pits several hundred times each and every year. On any given day, the 
potentially lethal atmosphere in a vault and other similar confined 
spaces as well as the potential for a trench collapse can turn their 
work deadly. Many of these trench entries are in the middle of heavy-
traffic streets and highways, which not only compounds trench stability 
issues but also poses risks to workers on the street level who must try 
to control the never-ending flow of traffic.
    Water and wastewater treatment requires a huge amount of electrical 
pumps and motors. Therefore, my colleagues must work with or near 
thousands of low and high voltage electrocution hazards every day. 
Chemicals are used throughout various water department operations and 
many of these constitute potential health hazards if not properly used. 
Chlorine gas is an essential product for keeping our drinking water 
safe but, if improperly handled or transported, can quickly become 
lethal for the workers and nearby citizens. Operating large 
construction equipment like earthmovers, backhoes, and cranes is 
another daily task that can become risky if appropriate safety 
procedures are not followed and enforced. Office staff faces everything 
from carpal tunnel injuries and other ergonomic hazards to workplace 
violence from being assaulted by disgruntled customers. In short, 
people who think that working for a city water department is low risk 
work that does not need OSHA protections are wrong.
    My experience in a municipal water department is only one example 
of the need for public sector occupational safety and health coverage. 
People working in hundreds of other job specialties within the state 
and local government arena face no less dangerous safety, health and 
environmental risks and deserve the same protections they would enjoy 
if they were doing these jobs in the private sector.
The Risks to Government Workers
    Good reasons support what ASSE hopes will be action by this 
Subcommittee to protect public sector workers across the United States. 
From my own view as a public sector employee, the simplest but most 
compelling reason is that saving lives and preventing injuries always 
tops the list of values that our government holds dear in every other 
responsibility it undertakes. State and local government workers are, 
in many instances, the ``first responders'' upon whom we all depend. 
Whether a terrorist attack or a natural disaster, these first 
responders are the first people who rush in to help save lives. We put 
a premium on that capability in our society. These same people who 
protect the public from hazards deserve the no less of a commitment to 
occupational safety and health protections from their employers, the 
public, and all of us here today.
    Please note that, when I say ``first responders,'' the term 
encompasses much more than the usual perception of law enforcement and 
fire fighters. I know from personal experience that water and 
wastewater people are right there in the middle of most disasters, 
moving throughout the affected areas to keep the infrastructure up and 
running. Hurricane Katrina taught many people a valuable lesson that 
people in my line of work have always known--a city is a miserable 
place when it is without electrical power and communications system. 
Cut off the water and waste water systems, and a safe and habitable 
city no longer exists.
    That occupational safety and health risks are a problem for public 
sector workers is clear. The U. S. Department of Labor's Bureau of 
Labor Statistics tells us that, from 1992 to 2001, 6,455 employees of 
government entities at all levels were fatally injured while at work. 
During that period, the annual number fluctuated from a high of 780 in 
1995 to a low of 566 in 1999. Among the three levels of government--
federal, state and local--workers in local government, which accounted 
for 50 percent of all government employment, incurred the highest 
number (3,227) of occupational fatalities over the period.
    Because government workers are employed in a wide variety of 
occupations, they provide a diverse cross section of workers to 
examine. Of the 6,455 government employees that were fatally injured on 
the job from 1992 to 2001, 5,694 (88 percent) were men and the 
remaining 761 (12 percent) were women. In terms of age, 12 percent of 
the fatally injured workers were aged 24 years and under, 26 percent 
were aged 25 to 34, 24 percent were aged 35 to 44, 22 percent were aged 
45 to 54, and 16 percent were aged 55 and over. Caucasian workers 
accounted for 77 percent of all workplace fatalities in government over 
the 10-year span; they accounted for 73 percent of total workplace 
fatalities. Black workers accounted for 12 percent of the fatalities in 
government and 10 percent of overall workplace fatalities. Hispanic 
workers represented 6 percent of the fatalities in government and 11 
percent of overall workplace fatalities.
    Approximately half of the fatal occupational injuries to government 
workers resulted from transportation incidents. The next largest event 
or exposure category was assaults and violent acts, which accounted for 
22 percent of the workplace fatalities in government over the 1992-2001 
period. The next most common event or exposure category among 
government workers was exposure to harmful substances or environments, 
which accounted for 426 (7 percent) workplace fatalities during the 
period. Of these, 159 involved contact with electric current, and 139 
involved oxygen deficiency. A total of 423 government workers were 
killed through contact with objects or equipment--most (257) from being 
struck by an object. Finally, 359 government workers lost their lives 
in falls, and 270 died in fires and explosions. It must be noted that 
these totals do not include the many public sector fatalities that 
resulted from the terrorist attacks of September 11, 2001. The public 
sector is subject to the same difficult questions facing private 
industry about underreported deaths from work-related illnesses that 
are not recorded. Many occupational exposures to chemicals and toxic 
substances, such as crystalline silica and asbestos, result in 
illnesses with a long latency period. The correlation between workplace 
exposure and death is often missed when the worker succumbs fifteen or 
more years after leaving the workforce.
    What is not available are complete data comparing the injury and 
illness and fatality rates of states whose public sector workers have 
safety and health coverage and states not requiring such coverage. ASSE 
has undertaken its own review of what we believe is incomplete data and 
would be happy to share what we have found with Subcommittee staff. 
However, the need for a more comprehensive understanding of the problem 
is needed. ASSE urges this Subcommittee to task OSHA and BLS to work 
together to devise a way to develop this data and share it with the 
Subcommittee as quickly as possible.
    From my own experience and the experience of my fellow safety and 
health professionals, rates should be lower in states that have 
established health and safety requirements and OSHA oversight than 
rates in states where no one takes responsibility for workplace safety, 
as is found in the private sector in comparisons between companies who 
are committed to safety and health and those that are not. Although the 
data may not be clear, we know for sure that hundreds of state and 
local government workers are killed and thousands injured each year. 
Because private industry widely accepts that workplace health and 
safety programs do prevent or mitigate the effects of workplace hazard 
exposures, it is difficult to understand why so many state and local 
governments do not better protect their workers with OSHA coverage.
An Unfunded Mandate?
    In the early 1990s, the labor movement attempted several revisions 
of the OSH Act. One of these revisions would have provided the coverage 
for all public employees that we seek today. At that time, reportedly, 
the League of Cities, the Conference of Mayors and the Association of 
State Legislators opposed coverage. The primary objections were that 
such a requirement would be an ``unfunded mandate,'' that it would 
``cost too much,'' or that ``we don't need it because we take good care 
of our public employees.'' These are not supportable positions
    I can appreciate the sentiment behind the unfunded mandate 
argument. As a supervisor, I likewise struggle each year to keep on top 
of ever-changing regulatory requirements from various levels of 
government. Yet, as a professional with a moral commitment to 
protecting the citizens of San Bernardino, I also accept that part of 
my job is to stay current and help see we do our best to take care of 
our citizens and our employees with whatever limitations there are on 
resources. I do not shirk my duty.
    As a safety professional, I reject that safety costs too much. Most 
importantly, not spending money to protect state and local government 
worker's health and safety sends a message that such workers are 
expendable, that it is cheaper to kill or injure employees than to 
protect them. As the best working corporations across this country have 
found, investment in managing safety, health and environmental risks 
pays in more productive employees, fewer accidents, less injuries and 
deaths in workers that can only take from a company's bottom line. 
Although not the direct subject of this hearing, the benefits of 
investing in safety and health can be found on ASSE's Business of 
Safety Committee's website at http://www.asse.org/
search.php?varSearch=business+of+safety, ASSE's white paper, ``Return 
on Investment for Safety, Health and Environmental Programs'' at http:/
/www.asse.org/search.php?varSearch=return+on+investment, and the safety 
and health topics page on OSHA's website, ``Making the Business Case 
for Safety and Health'' developed by OSHA, ASSE and other Alliance 
participant leaders in safety and health at http://www.osha.gov/dcsp/
products/topics/businesscase/index.html. No doubt, taxpayers would like 
to know why their governments do not have the same concern over bottom 
line issues that private sector employers widely accept.
    As to the argument that government employers already take good care 
of their employees without a mandate, the contradiction is obvious. The 
numbers of deaths alone among public sector workers contradict this 
statement. If a government entity's employees are well cared for, it 
could not cost more to follow OSHA standards because an entity would 
already be making the commitment required by those standards. I receive 
this coverage, and I do not believe the San Bernardino Municipal Water 
Department is any less a good steward of taxpayer's hard-earned dollars 
than water departments where coverage is not provided.
    In fact, a recent tragedy in a municipal water department in 
Florida, where OSHA coverage is not mandated, provided a telling 
demonstration of why providing such coverage is both a moral and an 
economic imperative. On January 11, 2006, an explosion at the City of 
Daytona Beach's Bethune Waste Water Treatment Plant killed two 
municipal employees and gravely injured a third. In 2000, Florida had 
stopped requiring state entities to provide safety and health coverage, 
giving public sector employers the choice to provide such coverage 
voluntarily. Six years later, Daytona Beach did not have a commonly 
found ``hotwork'' permit system used by OSHA to control cutting and 
welding operations. The city also did not have a hazard communication 
plan to train workers on the hazards of the flammable chemicals they 
were told to work above. When sparks from their cutting torches ignited 
the flammable liquid tank, two of the workers burnt to death and the 
third was critically injured.
    The U.S. Chemical Safety and Hazard Investigation Board (CSB) 
investigated and found that the tragedy was preventable if the city had 
been required to follow the same OSHA standards as private industry. 
ASSE shares the conclusion CSB Chairman and CEO Carolyn W. Merritt 
captured when she said, ``Workers in private industry benefit from a 
variety of OSHA standards designed to prevent death and injury, and 
public sector employees deserve no less.'' CSB's completed 
investigation report is at http://www.chemsafety.gov/
index.cfm?folder=completed--investigations&page=info&INV--ID=57. Now, 
ASSE members in Florida are engaged in an effort to see to it that 
Florida public sector workers do receive occupational safety and health 
coverage. Due to their work, we fully expect a bill to be introduced in 
next year's legislature that would reverse the state's policy that such 
coverage need only be voluntary.
    ASSE's members understand, though, that the surest way to achieve 
coverage for Florida's workers and every one of the 8.5 million public 
sector workers who do not have such coverage is an amendment to the 
federal OSH Act. ASSE fully supports provisions in the bills introduced 
this year by you, Chairwoman Woolsey (HR 2049) and Senator Kennedy (SB 
1244) that would do just that. Until coverage is made federal law, 
however, ASSE's members will continue to work for solutions at the 
state level, as our members are already doing in Florida.
Conclusion
    ASSE greatly appreciates this opportunity to share our views today. 
Since 1970, a missing section in the OSH Act has lessened the well 
being of 8.5 million public sector workers who are not protected from 
occupational safety and health risks as private sector workers are. The 
time has come to be fair to all those public sector workers who risk 
their well being for all of us. The 30,000 members of ASSE stand ready 
to help this Subcommittee achieve that fairness.
    Whatever questions the Subcommittee has for me, I would be more 
than happy to answer.
                                 ______
                                 
    Chairwoman Woolsey. Thank you very much to all four of you.
    I will begin the questioning with you, Mr. Sarvadi.
    I know you think it is better that rather than amend OSHA 
that states be given incentives to comply with OSHA standards, 
but I ask you: The federal government has already provided 
matching funds of their very own for OSHA-approved programs, 
and after 37 years, only 21 states have OSHA-approved state 
plans, and only three states have plans cover public employees 
only.
    What are we going to do with the other 26 states? Why do 
you think good faith works when it doesn't? What would you do 
if you were in our shoes?
    Mr. Sarvadi. Well, let me clarify a couple of points, Madam 
Chairman, about the matching funds that OSHA provides. Those 
matching funds go to support the enforcement programs that 
those 21 states operate. That covers private-sector employees 
as well. So the money that is available in those funds is for 
operation of the state program similar to OSHA's funding.
    What I am talking about in terms of additional funding that 
would encourage the other states to participate would be the 
kinds of grants that would go to pay for the kinds of programs 
that the water department in San Bernardino has and that the 
City of Daytona obviously needs.
    Chairwoman Woolsey. Well, let me reclaim my time to ask 
then, Mr. Turnipseed, why are you able to follow OSHA standards 
in San Bernardino? That is part of your job. Why can you do 
that?
    Mr. Turnipseed. Obviously, you know, my city, my water 
department is committed to following OSHA--in this case, CAL-
OSHA standards. We are a state program state. They are very 
committed to making sure that our public-sector workers know 
what to do, the right way to do it, and we do not have 
tragedies like Ms. Jones has just gone through.
    Chairwoman Woolsey. Tell me what you think after reviewing 
the report on the Daytona Beach's safety program. Explain how 
this explosion could have been prevented. I mean, you have read 
it.
    Mr. Turnipseed. Yes.
    Chairwoman Woolsey. Your association has made a report on 
it. Would you tell us about that?
    Mr. Turnipseed. The tragedy for me is there are two very, 
very basic OSHA programs that were totally neglected here. If 
they are not training their folks--and we call it hazard 
communication--on the chemicals and the substances you work 
with, that is a very basic thing that everybody needs to know. 
Everybody has a right to know. In fact, it is known as the 
Right to Know law.
    Hot work permits--how you deal with welding and cutting and 
brazing, anything that generates a spark--that is a very basic 
simple thing that we all know and we all follow. By following 
those very simple basic things, this tragedy would have been 
totally preventable.
    Chairwoman Woolsey. Thank you.
    Ms. Jones, to your knowledge, did your husband's employer 
take any steps to investigate the incident and report to you, 
the family, the cause?
    Ms. Jones. When the explosion first happened, they were all 
right there wanting to help, wanting to find out things, why 
this happened, what can we do better. The day of his funeral, I 
had the city commissioner tell me that ``whatever we could do 
to change this, we will.''
    Nothing has been changed except they hired a safety officer 
in the City of Daytona Beach. As far as I know, the city has 
not told me nothing else besides why, how. It just seems like 
they keep pointing fingers behind each other.
    Chairwoman Woolsey. So, without the report of the Chemical 
Safety Board, would you have known any of the facts about how 
it happened?
    Ms. Jones. No.
    Chairwoman Woolsey. Okay. Thank you.
    Mr. Fillman, when OSHA was passed 37 years ago giving the 
states the option of covering state, county and municipal 
employees, why do you think only half of the states became 
involved in it and what would the obstacles be for a state to 
offer to be part of OSHA?
    Mr. Fillman. I can only talk about my experience in 
Pennsylvania, and in Pennsylvania, for the last 20 years, we 
have tried to submit on 10 different occasions a bill to give 
OSHA protection to public employees. It really has not gone far 
because the opponents of it always raise the issues of unfunded 
mandates, staffing that would have to be accomplished, which 
really is not the intent of OSHA-type bills at all.
    So we have not been successful in Pennsylvania, and I think 
the opposite is true that if an OSHA-type bill was in place for 
public employees in Pennsylvania, not only would the 
possibility of some of the deaths that we have, especially in 
the highway work, have been prevented, but a lot of lost wages, 
lost time, disability pensions, those kinds of things would 
have been averted.
    Chairwoman Woolsey. Thank you very much.
    Mr. Wilson?
    Mr. Wilson. Thank you, Madam Chairman.
    And thank all of you for being here today.
    Particularly, Ms. Jones, thank you for being here. Your 
courage is a tribute to your husband, and so it is just been 
very meaningful to have you here. Thank you.
    Mr. Turnipseed, I am delighted to see you. My youngest son 
is studying engineering, so I appreciate your profession.
    In your testimony, you indicated that in 1994 when this 
issue came up to cover state and municipal employees that 
organizations, such as the League of Cities, the Conference of 
Mayors and the Association of State Legislators, opposed the 
coverage. Do you know if they have changed their position?
    Mr. Turnipseed. I honestly do not know what their current 
position is.
    Mr. Wilson. And at that time, it was largely due to the 
issue of unfunded mandates.
    Additionally, in your testimony, you suggest that states 
who have adopted their own programs have a better safety and 
health record than those of federal OSHA states. From that, 
would it seem that the best answer is for the states to take 
the programs? What measures and incentives do you think we 
could provide that could promote delegation, if any?
    Mr. Turnipseed. Certainly. I believe the state program 
states are the best. Obviously, you know, when you know your 
local issues better than anybody else, you do a little bit 
better job. That just goes without saying.
    We need OSHA, though, in those states that do not have 
anything. Right now, those folks are out just running blind in 
the minefield, and that is ridiculous in this day and age. As 
far as encouraging other folks to have state plans, all I can 
say is money always helps everything. If we can increase the 
money for state plan states, giving OSHA more money to help in 
those areas would always be a good thing to have.
    Mr. Wilson. Indeed, I have seen that with EPA delegating to 
the Department of Health and Environmental Control in our state 
that it has enhanced the environment.
    Then I have worked with the Corps of Engineers to delegate 
to state agencies permittings because locally people know, and 
it is quite a burden to have to contact a regional office in 
Atlanta or, heaven forbid, Washington, D.C.
    People do not even know how to pronounce different 
communities. It may be Buford in South Carolina and Beaufort in 
North Carolina, and by the time the bureaucrat figures which it 
is, they have lost track of which state they are talking with. 
So I really would like it to be municipal and state.
    Mr. Sarvadi, you have testified very well. With your 
extensive career, and as an attorney, I appreciate your 
background. By imposing federal standards and inspectors on to 
the states, will that ensure employee safety?
    Mr. Sarvadi. Well, I think I answered that but maybe a bit 
indirectly in my statement, Mr. Wilson.
    Mr. Wilson. It does not guarantee it, right.
    Mr. Sarvadi. It does not guarantee it, and certainly, 
taking steps to implement a safety and health program is going 
to improve the chances of not having these kinds of tragedies.
    I think the point that was made by Mr. Andrews first and 
maybe some of the others in their opening statements about the 
benefits to a workers compensation program that comes from 
having the safety and health program, certainly the money that 
they save there could go towards supporting some of these 
programs.
    But the way the legislation presently is written, if OSHA 
were to have authority and started to go in and inspect the 
City of Daytona or another agency outside of the state plan 
states, then OSHA would have the same enforcement authority--
that is penalty authority--that presently it has with regard to 
private-sector employers, and I just do not see the utility of 
having a state government agency or a local government agency 
taking money out of its budget that would better be used to 
improve the safety and health programs in those states and pay 
it to the federal Treasury, and that is what the present 
arrangement would suggest.
    I do not see how that improves safety and health in any 
way. So I really think, especially with this administration's 
program, in the voluntary protection program and other 
cooperative programs that OSHA has developed, we have seen 
dramatic improvements in those industries that are 
participating in those. I think it is time for us to start 
seriously thinking about another approach besides a hammer, 
maybe a few more carrots on the table, to get those states that 
are not in the programs now to do so in the future.
    Mr. Wilson. In line with that theory of the carrot, my 
state's own safety plan would be more productive and efficient 
for employee safety than the federal OSHA mandates, and how 
might states without plans be encouraged, as you were just 
implying, to implement their own safety plans for state and 
local government employees?
    Mr. Sarvadi. I think that one way to approach this would be 
to target the grants that OSHA would be authorized to pay out 
and maybe OSHA is not the best place to do this. Maybe it 
should be through the National Institute for Occupational 
Safety and Health. I have not given any thought to the 
mechanism.
    But if those grants were targeted to specific activities--
for example, to pay for a safety and health manager at a city 
or local level, to help pay for training to be made available 
to the state and city employees--you accomplish the same end, 
and you do it in a way that does not interfere with the states' 
abilities to manage their program.
    Mr. Wilson. Thank you very much.
    Chairwoman Woolsey. Mr. Bishop from New York?
    Mr. Bishop. Thank you, Madam Chairman. Thank you for 
holding this hearing.
    And thanks to the panel, particularly Ms. Jones. Thank you 
very much for being here.
    Mr. Sarvadi, do you consider the imposition of a national 
OSHA standard on the states that right now do not follow such a 
standard to be a violation of state sovereignty?
    Mr. Sarvadi. Personally, I am a little bit uncomfortable 
with having the federal government dealing at that level in the 
relations between the state and its employees, but, as I said 
in my opening remarks, the Supreme Court seems to be two-minded 
about this.
    In every case that is directly addressed, for example, 
under the Americans With Disabilities Act or the Fair Labor 
Standards Act, both of those decisions that I looked at were 5-
4 decisions, so it is not clear that constitutionally we have 
that.
    Mr. Bishop. So it would----
    Mr. Sarvadi. Personally, I think, I expect my state and 
local government officials to do the right thing, and the right 
thing is to have a safety and health program.
    Mr. Bishop. I think we would all agree in an ideal world 
that that would be the case, but, I mean, the record is replete 
with examples where the federal government has imposed a 
national standard.
    We have a national standard for handicapped access. We have 
a national standard for how students with special needs are to 
be treated. We have a national standard for what educational 
expectations would be for K through 12 students. Under current 
law, the president has the authority to deploy the National 
Guard in each state as he sees fits.
    How do you see this issue not rising to the same level of 
importance as those issues, such that one would reasonably 
argue that we do not need a national standard?
    Mr. Sarvadi. I do not think it is correct to say that we do 
not have a national standard. In the 26 or 27 states and 
territories that have state plans, they are following the 
federal standards. In a number of the other non-state plan 
states, they have state mandates to follow the federal 
standards--not their own standards, the federal standards.
    I will admit because of the shortness of the time that I 
had to prepare for the hearing, I was not able to go out and 
look at all of the states, and I would encourage this committee 
to ask the Congressional Research Service to find out exactly 
what----
    Mr. Bishop. Let me just go to a specific case. It is my 
understanding that Florida had a non-federally approved 
standard, which then-Governor Bush abolished in 2000. In the 
absence of a national standard, a governor is free to do that, 
under current law, as I understand it.
    Using the construct that you are proposing, which is some 
system of carrots as opposed to sticks, how do you see that 
working to incentivize a Governor Bush or others who are 
likeminded to follow a federal standard and not to, in effect, 
voluntarily withdraw from the system?
    Mr. Sarvadi. I am glad you asked me about Florida because I 
want to set the record straight, if I can. Again, I did not 
have a lot of time to look at this, but I did look specifically 
at Florida.
    The Florida legislature repealed the statutory requirement. 
Subsequent to that, I believe it was Governor Bush who issued 
an executive order requiring state and local governments to 
comply with federal OSHA standards, and I believe that is the 
case in Florida today.
    So the issue in Florida is an interesting one in light of 
the accidents that occurred and it is interesting to me to pass 
the question perhaps to the City of Daytona officials about why 
they have not complied with that executive order. That 
executive order approach is the one, in fact, that we use at 
the federal level.
    Mr. Bishop. If I may use that as a segue to Ms. Jones, 
again, thank you very much for being here. Are you aware of any 
official actions taken by the City of Daytona Beach to prevent 
tragedies such as the type that took your husband or any other 
formal response to that tragedy on the part of the City of 
Daytona Beach?
    Ms. Jones. The only formal response that I can recall that 
the city has announced that they have done since the accident 
in 2006 is to hire a safety manager to oversee any kind of work 
to be done, to follow guidelines, and the only reason I even 
found that out is they came out in the papers.
    You know, it is kind of funny. They eliminated the position 
years ago, but within 3 months of my husband passing away, they 
have a safety officer they could not afford just the year or 2 
before, but they found it in the budget now since then to keep 
this position.
    Mr. Bishop. Thank you very much.
    And just to clarify, Mr. Sarvadi, the executive order 
signed by Governor Bush applied to state employees only. It did 
not apply to city or other municipal employees.
    Mr. Sarvadi. As I said, I did not have a lot of time to get 
ready for this.
    Mr. Bishop. Thank you. Thank you very much.
    Thank you, Madam Chairwoman.
    Chairwoman Woolsey. Thank you.
    Ms. Shea-Porter?
    Ms. Shea-Porter. Thank you very much.
    I have some concerns, if I could address those, please. 
What I am disturbed about, Mr. Sarvadi, is the way you are 
acting as if we can count on private industry and we can also 
count on governments to just do the right thing because they 
are good citizens.
    The reason that we have courts is because we do not always 
do the right thing. So I have trouble with your basic premise 
there that we just leave it up to them because they will do the 
right thing.
    And we have Ms. Jones sitting next to you, and I offer my 
deepest sympathies. It is a tragedy that was not necessary 
because the right thing was not done.
    So I wanted to ask you a question about--and you also 
pointed out that it does not guarantee compliance, and so I 
guess you get right back to: Do you believe in seat belts? 
Putting seat belts in cars does not guarantee compliance, and 
compliance does not guarantee safety, but we know it sure helps 
a lot. We have seen the change in numbers when people started 
using seatbelts.
    So I cannot quite understand where you are coming from. I 
know you have a certain set philosophy, but can you address 
what I just brought up in terms of: Do we have to have some set 
of protections for these employees and their families?
    Mr. Sarvadi. Well, let me address, if I can, the point that 
you made about voluntary compliance, which is sort of a 
misnomer because there is nothing voluntary about complying 
with OSHA for the private sector, and in those states that have 
state laws, there is nothing voluntary about that either.
    But we do rely in this country not only in the occupational 
safety and health area, but in other areas like the Internal 
Revenue Service on the good citizens of the country to do the 
right thing.
    I think our experience with the IRS--and with OSHA, for 
that matter, with the Occupational Safety and Health Act--is 
that, for the most part, our citizens do the right thing. So 
the question is: What is the best way to get the rest of them 
up to speed?
    It seems to me that the notion that if we pass this 
requirement and bring these states into the federal plan that 
magically things will change and, all of a sudden, they will be 
doing all the things that we think they should be doing, that 
does not happen. Our experience in the private sector shows 
that we do have people that do not do the right thing, and of 
course, that is why we have courts and why we have enforcement.
    But I do not think the American people--and I certainly 
personally would be opposed to the notion of having an OSHA 
inspector on every workplace. That is not going to work. We are 
never going to pay for that kind of response, and, in fact, it 
would not really make any difference.
    The OSHA inspectors are good people, and they do work hard, 
but, in fact, they cannot be everywhere every minute, and these 
kinds of things sometimes occur randomly without expectations.
    So the best we can hope to is to educate not only the 
employees but the managers about the importance of these things 
and about the ways to prevent injuries and illnesses from 
happening and then to learn from the experience of the past and 
make sure that we do the things differently in the future, so 
they never happen again.
    Ms. Shea-Porter. Well, first of all, I hate to bring you 
bad news, but when the IRS started cutting down the number of 
compliance officers, the rate of compliance dropped. So it 
certainly does help to have somebody watching.
    When I was reading your testimony, you wrote that the idea 
that public employees need a stick to force them into 
compliance--you said it makes little sense, and that most 
private employers comply with OSHA regulations because they are 
good citizens.
    Now I could agree with you that most people are good 
people, but we should not each time let somebody like Ms. Jones 
and her family suffer so that we can ``learn'' the next time to 
prevent the next accident.
    I do think it is our responsibility to prevent accidents 
instead of trying to learn from them, and I have not heard 
anything else offered besides the idea that you have to have 
people on the job who are the eyes and the ears for our public 
workers.
    I just have not heard anything different today, but I thank 
you for your comments.
    Chairwoman Woolsey. Mr. Hare?
    Mr. Hare. Thank you, Madam Chair, for holding the hearing.
    Mr. Sarvadi, let me ask you, in the years that you have 
been doing all of this, how many safety and health inspections 
have you done in public employee workplaces where OSHA 
standards did not apply?
    Mr. Sarvadi. How many I have personally done?
    Mr. Hare. Yes. Have you ever done any like at a public work 
yard or a wastewater treatment plant?
    Mr. Sarvadi. Well, while I was in law school, I was a 
consultant for a company that had contracts with Prince William 
County, the D.C. government, and there may have been some other 
government agencies for asbestos inspections. So that is the 
kind of thing that we did.
    I am not sure that those were voluntary. There was a lot of 
public pressure from families to look into asbestos in the 
schools, and there were some statutory provisions, but----
    Mr. Hare. Well----
    Mr. Sarvadi. I do not do inspections. Mr. Hare, I do not do 
inspections per se anymore. I have not done them for about 20 
years.
    Mr. Hare. Well, let me ask you this. If you had a choice, 
Mr. Sarvadi, would you rather go into a trench or to a confined 
space where there were OSHA standards and you had work or where 
there were not OSHA standards?
    Mr. Sarvadi. The point, I think, is that it is not the OSHA 
standard that makes any difference. Part of OSHA adopting the 
confined spaces standard----
    Mr. Hare. No, I am saying to you would you rather go 
someplace where there is a standard, or would you rather go to 
work someplace where there is no standard whatsoever?
    Mr. Sarvadi. I worked at a company that had standards 
before the federal government had them, before the federal 
government imposed them, and my point is that the standards are 
not uniquely effective because they are federal standards. They 
are effective because they address the technical issues that 
occur.
    The point to be made is that people need to do these 
things, and states and local governments need to do them just 
as much as the private sector or even Congress in its offices 
need to do these things. We all have a responsibility. I just 
do not think that the proposed legislation with this mandate 
for penalties on state and local government necessarily is the 
best way to go about it.
    Mr. Hare. Well, in your statement, you said, ``I do not 
believe it is possible to write regulations to address what are 
essentially infrequent occurrences.'' In your 35 years of 
practicing as an industrial hygienist in occupational safety, 
have you ever heard of the OSHA lockout-tagout standard?
    Mr. Sarvadi. Of course. We had that standard in place 
before OSHA adopted it many years ago.
    Mr. Hare. After the incident that killed Mrs. Jones' 
husband, would you refer to that as an infrequent occurrence 
and could that have been prevented had basic OSHA standards 
been followed?
    Mr. Sarvadi. I think the incident could have been prevented 
and training provided to the employees that would have helped 
them recognize the hazards, but, as I read the CSB report, I 
believe the way the accident occurred was that the welding 
sparks fell into the vent, and the vent had a flame arrestor 
that had been corroded and degraded, and it was that 
combination of things that occurred that actually led to the 
fire and the explosion.
    That is the kind of technical analysis that you get into. 
Would a lockout-tagout program have prevented that particular 
incident? I do not believe so because it was not a question of 
having uncontrolled energy present. It was a problem of having 
the vent open to the atmosphere, and the lockout-tagout 
standard I do not believe would have applied in that particular 
situation.
    Mr. Hare. Well, it seems to me that when people go to work 
every day--and, Ms. Jones, I am sure when your husband got up 
and went to work every day--people have, I think, a right to 
assume that they are going to someplace that is reasonably safe 
and where there are some standards to keep them safe.
    What I do not understand is the reluctance, quite frankly, 
to expand this to a group of people who need the protection. I 
mean, it would seem to me, if we are going to allow the good 
will of folks to determine this--as my colleague has already 
mentioned, you know, they have seat belts in cars. You know, we 
have speed limits. It does not mean that people always obey 
them, but the fact of the matter is I do not know why we cannot 
seem to err on the side of the worker and give them the 
protection that they need.
    I do not think federal grants, with all due respect, to get 
cities to comply is the answer here. I think that those types 
of accidents, infrequent as they are, they are tragic.
    Listen, if we do nothing, if we do nothing except say, 
``Well, we want the states, you know, to be good citizens and 
try this and we will not get any pressure from the feds to try 
to get them to live up to their end of the bargain,'' I think 
that is really disrespectful to the workers, to get up every 
day and for their families that depend on them to come home at 
night.
    So, with that, I yield back.
    Chairwoman Woolsey. Mr. Payne?
    Mr. Payne. Thank you very much, and let me thank you for 
calling this very important hearing.
    We have been very active in New Jersey with OSHA. We had a 
leader from the IUE years ago, Archer Cole, who used to have an 
annual funeral, and a number of people who died from 
occupational hazards and accidents would have a funeral to 
commemorate the lives of those persons.
    So, as you know, we are one of the three states--just 
Connecticut, New York and New Jersey--that have a public 
employee only plan, which really establishes the public 
employee only where the state government enforces safety and 
health protection for the public sector, and the federal 
government covers the private sector. But we really take the 
whole question of occupational safety and health in New Jersey 
very, very seriously.
    Let me just ask you, Mr. Fillman, the OSHA law gave the 
states the option of covering state, county and municipal 
employees 37 years ago, yet less than one-half of the states 
have stepped up to the plate. What are some of the obstacles 
you have faced in Pennsylvania attempting to get OSHA coverage 
for public employees and, in your opinion, do other states face 
the similar obstacles?
    Mr. Fillman. As I stated before, I can speak for 
Pennsylvania, and I do not think the obstacles that were 
outlined when we proposed--that we have proposed 10 times in 
the last 20 years--the opponents of that type of bill are any 
different than any state, and that is the unfunded mandates.
    It is the misnomer of added staffing, the misconception 
that buildings would have to be torn down because they are not 
safe any longer, a whole realm of mistruths, if you will, that 
are brought--and staggering numbers that are attached to 
those--and that is really the idea behind the defeat of that 
bill on most occasions.
    Mr. Payne. Could you give me one reason that has been given 
for not providing OSHA coverage for all public employees? One 
of the reasons that we hear is that it would bankrupt the 
states and counties, and so what do you think about this, and 
do you, in fact, believe that covering public employees by a 
federal OSHA plan would save states money, and if so, how?
    Mr. Fillman. Yes, definitely. We feel that the loss of 
time, the workers compensation claims, disability, pensions if 
it is a more severe injury, the replacement of a worker if a 
worker is out, the training that goes with replacing that 
worker, the lost wages, if I have not said that already, all of 
those things would be cost factors that would be alleviated if 
we had less accidents, more safeguards in place and ultimately 
less deaths in the Commonwealth of Pennsylvania and, I am sure, 
for the rest of the states.
    Mr. Payne. Finally, could you spend a little time telling 
us about some of the workplace accidents that have taken place 
in Pennsylvania that, in your opinion, may have been prevented 
if public employees were covered by OSHA?
    Mr. Fillman. We have the most significant and dangerous 
work and sometimes it is not really represented, is the 
highway. We have lost over 100 members, 100 employees of the 
Commonwealth of Pennsylvania since 1970 that have died on the 
highways.
    We have tried to piecemeal some protections when it comes 
to highway work with construction work safety zones, increasing 
fines, as best as we can, but unless the standards are in place 
as far as working on the highways and giving the employees the 
benefit of having a standard and safeguards in place, there 
would have been less than those 100 deaths.
    We have had incidents in the custodial area dealing with 
chemical safety, a mismix of chemicals without any standards in 
place.
    I just had heard of an incident at one of our universities 
where without an OSHA standard or an OSHA compliance officer, 
there was a question as far as an electrical panel box over 
what is known as a slop sink in the custodial work area where 
our member had to actually, through the network in the union, 
find out someone that knew about electrical compliance and 
standards to find out if the area was safe. And it was an 
unsafe area, but the employer was not in the position of 
helping enforce that compliance.
    So, at times, we are battling it ourselves without any real 
standard or compliance officer that could help.
    Mr. Payne. Thank you very much.
    Chairwoman Woolsey. Well, thank you all.
    Oh, wait a minute. I forgot. Mr. Andrews from New Jersey?
    Mr. Andrews. Thank you, Madam Chairman.
    I thank the witnesses for their testimony.
    I thank you again for the courtesy of the privilege of 
participating in the hearing.
    Mr. Sarvadi, let me say from the outset I appreciate your 
testimony. I do not agree with your conclusion that we are 
asked to encourage states and localities to cover public 
workers is the right idea.
    But let's say for a minute that it became the law and let's 
say that we offer these more generous grants and 20 states say, 
``No, we are not interested in these grants. We just do not 
think it is a very good idea, and we are not going to offer 
standards comparable to OSHA or OSHA standards to cover public 
employees.''
    What should we do?
    Mr. Sarvadi. Find out if those people had a recent 
psychiatric examination because I do not think states ever turn 
down money from the federal government.
    Mr. Andrews. Oh, I do not think that is true. Oh, I do not 
think that is true at all. The federal government offers 
abstinence education money, but states believe that is an 
intrusion on their curriculum and do not do so. We offer money 
in exchange for meeting certain enhanced clean water and clean 
air standards and people turn it down because they do not want 
to do so.
    I think you have to assume that because the amount of money 
here would be relatively modest that there would be people who 
would turn this down. So what do we do when someone turns this 
down? What should we do then?
    Mr. Sarvadi. I think we better wait and see what happens.
    Mr. Andrews. Well----
    Mr. Sarvadi. I do not agree with you that the states will 
turn the money down, and depending on how much it is, it 
depends on what you are going to ask them to do. If the money 
is available for them to fund specific positions in the state 
government to address these things, it seems to me most of the 
states, if not all of them, will take that money. The problem 
is----
    Mr. Andrews. Have you surveyed the states to ask them this, 
or how do you know this?
    Mr. Sarvadi. I do not think anybody has asked the states 
what they would do under those circumstances because I think 
this is the first time that we have had this conversation.
    Mr. Andrews. Well, your testimony implies that you believe 
that the present incentives that are offered to pay for state 
employees who inspect private employers are insufficient. By 
what measure are they insufficient because there is an 
incentive system in place, right?
    Mr. Sarvadi. I am not sure I understand the question.
    Mr. Andrews. You testified earlier that the present OSHA 
grants and incentives pay states to help them hire personnel to 
inspect private employers, but that does not extend to state 
employees, right?
    Mr. Sarvadi. No, it does not extend. These are the state 
plan states. In those states, the money that is given to them 
goes to operate the state OSHA plan which does cover the public 
employees in those states.
    Mr. Andrews. But you must think that because everybody has 
not done that, that that offer is insufficient to get everybody 
to jump on board this financial gravy train, right?
    Mr. Sarvadi. Well, remember what I said. The money is not 
going to pay for safety managers in the different state 
agencies. The money goes to the state enforcement agency to 
enforce it.
    Mr. Andrews. I see.
    Mr. Sarvadi. What I am suggesting is that the money should 
be made available to pay for the safety program itself.
    Mr. Andrews. So we should pay the salaries of state 
employees to manage their own safety programs in cities and 
states out of the federal Treasury. Is that what you think?
    Mr. Sarvadi. I am suggesting that if you want to give them 
an incentive to adopt----
    Mr. Andrews. Wow.
    Mr. Sarvadi [continuing]. Programs like the ones that are 
mandated in the state plan states, that that is one approach 
that could be taken.
    Mr. Andrews. Why should we stop there? Why should not we 
pay them to hire their division of taxation employees to do a 
better job collecting taxes? Why should not we pay them to have 
their environmental employees do a better job inspecting 
federal environmental laws? Why stop with just OSHA then?
    Mr. Sarvadi. I think we actually do pay state employees 
through grants from EPA where EPA contracts with the state to 
do----
    Mr. Andrews. We pay them a very tiny percentage of the 
payroll of people who do that. Very, very tiny.
    Mr. Sarvadi. I would guess you probably would know.
    Mr. Andrews. Let me ask you another question. If we had a 
situation where states are subject to the OSHA rules, your 
testimony is you do not think penalties for the federal 
Treasury are an effective means of encouraging compliance.
    What is then? If someone is required to do something and if 
they do not do it they are not fined or penalized, what is an 
effective means of making people comply?
    Mr. Sarvadi. Well, it seems to me if we were talking about 
state and local governments, simply the fact that having it 
become publicly known that they are out of compliance would be 
an incentive for the political authorities in those 
jurisdictions to reorient the career employees to do so.
    Beyond that, I have not given a lot of thought to it at 
this point.
    Mr. Andrews. What would you think if the fines were put 
into a fund that was dedicated to deal with the medical costs 
of injured workers?
    Mr. Sarvadi. I guess that is what the workers compensation 
system already does.
    Mr. Andrews. But wouldn't it be a good idea to supplement 
that system to pay for injuries caused by careless practices by 
states? Isn't that an effective fine?
    Mr. Sarvadi. Anything that you can do to help the victims 
of these incidents is very important.
    Mr. Andrews. I take that as a yes?
    Mr. Sarvadi. I would like to think about the implications 
of it before we agree unequivocally.
    Mr. Andrews. Okay. I am sure the chair would invite you to 
supplement the record with that.
    Thank you very much. I appreciate it.
    Chairwoman Woolsey. Thank you.
    Thank all of you for being here.
    Thank you, Casey, Mrs. Jones, for testifying.
    Ms. Jones. Thank you.
    Chairwoman Woolsey. All of our hearts go out to you and to 
your family. I do not know if you know how important your 
coming here today was to all of us because your story puts a 
human face to the issue so that we can remember how important 
it is that we have OSHA coverage, that it is not a luxury, it 
is not a matter of dollars and cents, it is actually a matter 
of life and death, and it is an absolute necessity.
    The numbers reinforce the necessity. In 2005, the Bureau of 
Labor Statistics reported that there were over 400 work-related 
fatalities among state, county and municipal workers, and these 
numbers do not even take into account those public employees 
who died as a result of workplace-related diseases.
    In addition, there are hundreds of thousands of workers who 
are injured or become ill each year. In fact, in 2005, there 
were 570,000 reported incidents of injury and illness among 
public workers.
    However, reported incidents do not tell the full story 
because this data is taken from the 26 states representing less 
than 60 percent of public workers in this country. We do not 
have the data for the rest of them. So actual numbers of injury 
and illness, of course, are much much higher.
    And, most importantly, the injury and illness numbers show 
that public employees are much more likely to be hurt on the 
job than private-sector employees covered by OSHA.
    In addition, although it is not the subject of this 
particular hearing, there are millions of other workers, 
including air traffic controllers, flight attendants, rail 
workers and other transportation workers. who receive inferior 
workplace safety and health protections from federal agencies 
other than OSHA. They need to be covered by OSHA as well.
    Earlier this spring, Senator Kennedy and I introduced the 
Protecting America's Workers Act, which would not only mandate 
that OSHA cover all public employees, but it would increase 
penalties and make it much easier to send people to jail who 
kill their employees. It enhances the protections of the 
Whistleblower Act, and it gives more rights to families.
    Representative Andrews has a similar bill which requires 
OSHA to cover public employees as well.
    This hearing has once again pointed out this urgent need 
for OSHA coverage of state, county and municipal workers. As 
chair of this subcommittee, I will work very hard to accomplish 
that very goal.
    I thank you all for coming here today.
    The meeting is adjourned.
    As previously ordered, members will have 7 days to submit 
additional materials for the hearing record. Any members who 
wish to submit follow-up questions in writing to the witnesses 
should coordinate with the majority staff within 7 days.
    Now, without objection, the hearing is adjourned. Thank you 
very much.
    [Letter from Associated Builders and Contractors, Inc., 
submitted by Mr. Wilson, follows:]


                                ------                                

    [Whereupon, at 11:57 a.m., the subcommittee was adjourned.]

                                 
