[Senate Hearing 110-40]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 110-40
 
                  IS OSHA WORKING FOR WORKING PEOPLE?

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

                                HEARING

                               BEFORE THE

            SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY

                                 OF THE

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

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

   EXAMINING THE EFFECTIVENESS OF THE OCCUPATIONAL SAFETY AND HEALTH 
                         ADMINISTRATION (OSHA)

                               __________

                             APRIL 26, 2007

                               __________

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


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                 senate

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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

           Katherine Brunett McGuire, Minority Staff Director

                                 ______

            Subcommittee on Employment and Workplace Safety

                   PATTY MURRAY, Washington, Chairman

CHRISTOPHER J. DODD, Connecticut     JOHNNY ISAKSON, Georgia
TOM HARKIN, Iowa                     RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland        LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     PAT ROBERTS, Kansas
BARACK OBAMA, Illinois               WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma
EDWARD M. KENNEDY, Massachusetts     MICHAEL B. ENZI, Wyoming (ex 
(ex officio)                         officio)

                   William C. Kamela, Staff Director

                  Glee Smith, Minority Staff Director

                                  (ii)




















                            C O N T E N T S

                               __________

                               STATEMENTS

                        THURSDAY, APRIL 26, 2007

                                                                   Page
Murray, Hon. Patty, Chairman, Subcommittee on Employment and 
  Workplace Safety, opening statement............................     1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  opening statement..............................................     2
Michaels, David, Ph.D., Research Professor and Associate Chairman 
  of the Department of Environmental and Occupational Health, 
  George Washington University, Washington, DC...................     6
    Prepared statement...........................................     8
Seminario, Peg, Director, Occupational Safety and Health, AFL-CIO 
  Washington, DC.................................................    16
    Prepared statement...........................................    18
Compagna, Konnie, R.N., Nurse at Valley Medical Center, Kent, 
  Washington.....................................................    30
    Prepared statement...........................................    32
Cecich, Thomas, CIH, CSP, President, TFC and Associates, Apex, 
  North Carolina.................................................    35
    Prepared statement...........................................    36

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Kennedy, Hon. Edward M., Chairman, Committee on Health, 
      Education, Labor, and Pensions, prepared statement.........    48
    Enzi, Hon. Michael B., a U.S. Senator from the State of 
      Wyoming, prepared statement................................    49
    Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, 
      prepared statement.........................................    50
    Worker Safety Report by the Democratic Staff of the HELP 
      Commmittee.................................................    51
    Response to questions of Senator Kennedy by:
        David Michaels...........................................    55
    Response to questions of Senator Enzi by:
        Peg Seminario............................................    56
        David Michaels...........................................    58

                                 (iii)




                  IS OSHA WORKING FOR WORKING PEOPLE?

                              ----------                              


                        THURSDAY, APRIL 26, 2007

                                       U.S. Senate,
Subcommittee on Employment and Workplace Safety, Committee 
                 on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:00 a.m. in 
Room SD-124, Dirksen Senate Office Building, Hon. Patty Murray, 
chairman of the subcommittee, presiding.
    Present: Senators Murray and Isakson.

                  Opening Statement of Senator Murray

    Senator Murray. This subcommittee will come to order. I 
want to thank Senator Isakson for joining me today for this 
hearing. We may have some other Senators as well. I want to 
thank all four of our witnesses for coming this morning and 
sharing your expertise on the important issue of employment and 
workplace safety. We really appreciate everybody being flexible 
with the time change. Senator Isakson has to leave early and I 
do as well, to manage a bill on the floor.
    We want all of you to know that your words and your 
testimony are critically important to this committee. 
Everything you have will be submitted into the record as far as 
your written testimony. I will likely have some questions as 
well as other committee members that we will submit to you and 
ask for your response. This will all be part of the committee 
record.
    Athough this committee may feel shortened and a tad bit 
rushed, we really do feel that this is a critical issue and we 
want to make sure we get all of your information as we look 
into this issue.
    The Landmark Occupational Safety and Health Act was passed 
more than 35 years ago to a lot of acclaim and promise and for 
many years, we did see workplace injury and death rates 
steadily drop because of vigorous enforcement and new safety 
standards that had been in place.
    Over the last 6 years, as I have watched, I have become 
deeply concerned that it appears that OSHA is no longer living 
up to its mission, which is to ensure safe and healthful 
working conditions for our working men and women. 
Unfortunately, we have seen both a tremendous human and a 
financial cost to OSHA's shortcomings. In fact, Liberty Mutual 
Insurance has estimated that businesses pay up to $300 billion 
annually in direct and indirect costs for workplace injuries 
and illnesses. What concerns me as much if not more, is the 
people--people like the , construction and low-wage workers who 
come to my office and talk to me about the problems they have 
and the protections that they deserve when they go to work 
every day.
    Unfortunately, under this Administration, we have 
continually seen OSHA dragging its feet and nowhere is that 
more true than in the area of setting worker protection 
standards. In the last 6 years, OSHA has only set one new 
standard, despite all the changes in the workplace, one new 
standard and that was under court order. So today, workers are 
continuing to become ill and injured from a variety of 
workplace dangers and yet as we've seen, OSHA is setting no new 
standards to protect them.
    In fact, when this Administration took office, OSHA threw 
out all the ergonomic standards that protected workers that 
were prone to lifting and back injuries at work. States like my 
own have now had to write their standards to safeguard these 
workers. I am concerned that it appears far too often that OSHA 
has decided to disregard proven science and instead, just 
simply rely on suggestions, consultations or partnerships with 
industry. To me, that sounds like the classic case of the fox 
guarding the henhouse.
    We hear words like voluntary compliance but I'm concerned 
that ignores the safety hazards that we see in 90 percent of 
our American workplaces. I think it is really important that we 
keep in mind that it is our responsibility to oversee this and 
that we cannot just simply watch as 6,000 Americans die on the 
job every year and not pay attention. That is 16 people a day, 
nearly 6,000 people a year, who are dying today in work-related 
accidents across the country and there are serious questions 
about OSHA's fatality and injury reporting methods. So the 
bottom line is that even if we believe OSHA's numbers are 
correct and that worker injury and deaths are going down, 16 
deaths a day is still unacceptable to me.
    I do want to mention my disappointment with OSHA's 
inability to provide assistance in my efforts to ban asbestos. 
Instead of working with me to protect the American people from 
this deadly chemical, OSHA has been a consistent roadblock. It 
appears very clear to me that more work needs to be done to 
reform OSHA and later today, Senator Kennedy is going to be 
introducing his Protecting America's Worker Act, which I 
believe will offer us real solutions to real problems and I'm 
proud to be a co-sponsor of that legislation.
    Again, I want to thank all of our witnesses for being with 
us today so we can really look at how we can make OSHA work for 
working America.
    Senator Isakson.

                  Opening Statement of Senator Isakson

    Senator Isakson. Well, thank you, Chairman Murray, for 
calling this important hearing. Good morning and thank you to 
all our witnesses for taking your time to share your thoughts 
and your experience and your expertise with all of us. Working 
Americans spend almost half their waking hours at work and it's 
important that we ensure they and their employers are committed 
to workplace safety.
    The Bush administration has adopted an effective and 
proactive approach to workplace safety, emphasizing compliance, 
assistance and cooperative approaches. It has produced results. 
The rate of workplace fatalities is now down to 4 deaths per 
100,000 workers and the injury and illness rate is down to 4.6 
per 100 workers. Both of these are lowest levels in the 32-year 
history of OSHA.
    Now, I'm a businessman. I'm not a fox guarding a henhouse 
as a businessman, but I am someone whose assets have two legs. 
If they're not working, if they are not healthy, if they're not 
safe, my business is not producing. In the 33 years that I ran 
a business and also at the same period of time, was very active 
in the Chamber of Commerce, I saw the positive effects of OSHA 
as a catalytic agent to ensure that business put safety first 
and the results have been pretty astounding. Many of you 
understand one of the biggest costs you can have in a business 
is workers' compensation, particularly a business like mine 
where although I had low injury work in terms of sales 
associates, I had very high injury possibilities in a golf 
course development, a construction company, which obviously the 
workers' compensation rates are much higher.
    I have long supported pre-employment drug screening because 
so many accidents took place, particularly in the construction 
industry, because employees who came in actually were under the 
influence of some kind of a narcotic or alcohol. Pre-employment 
screening saw to it that companies knew if they had somebody 
applying who had used or was using narcotics or illegal 
substances.
    So I am really glad we're having the hearing today because 
as we focus on things that are wrong, we ought to also focus on 
things that are right and being proactive and putting safety 
first is important.
    Ana Cablic, an Hispanic woman, owner of a large 
construction business in Georgia testified at my request before 
a recent full committee hearing. Her company's motto, which is 
on her cards and her signs, which is Safe, Correct, Quick, 
which demonstrated to me that here is a business owner that 
understands the first principle in a three-legged stool of 
success is safety. UPS, a Georgia company invites me to their 
safety awards annually. I went to an award 2 weeks ago and gave 
a guy his brown jacket with yellow letters for having 30 years 
of employment, 3 million miles of driving and never having an 
accident. They illuminate safety because they know how 
important it is and the Chairman is exactly right.
    The cost of an unsafe workplace to a business is 
unacceptable and intolerable. The loss of life to an individual 
because of a lack of good oversight or attention to safety is 
inexcusable and I look forward to working with the Chairman to 
find those partnerships where business, OSHA and the Congress 
together can work toward the positive programs that provide 
safety for workers.


                          statistical charts 
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Thank you, Madam Chairman.
    Senator Murray. Thank you very much, Senator Isakson, for 
being one of those good business owners and for being here 
today. Just so you all know, that's a regional dialectical 
difference. I say OSHA (O-SHA), he says OSHA (AH-SHA).
    [Laughter.]
    With that, we will turn to our witnesses and again, you 
will all be given 5 minutes. The timer is in front of you and 
we would ask you to stick to the time limit this morning. I 
will start tapping up here when you're getting close to time. 
If you can't get through all of your written testimony, it will 
be part of the written record. We do have copies of it. We want 
to make sure we've got some time for our questions today as 
well.
    We are going to begin with Dr. David Michaels. He is a 
Research Professor and Acting Chairman of the Department of 
Environmental and Occupational Health at the School of Public 
Health and Health Services at George Washington University. He 
directs the project on Scientific Knowledge and Public Policy 
and his research areas include studies of pressmen, 
construction workers and bus drivers.
    Margaret Seminario is the Director of Occupational Safety 
and Health for the AFL-CIO. She has worked for the AFL-CIO 
since 1977 and since 1990, has been responsible for directing 
the AFL-CIO's program on Safety and Health.
    Konnie Compagna--did I say your name right?
    Ms. Compagna. Yes.
    Senator Murray. Is an R.N. from Washington State and a 
member of the Service Employees International Union. She has 
been a nurse for 38 years and is currently a labor and delivery 
nurse at Valley Medical in Washington.
    Thomas Cecich is President of TFC and Associates. He is 
with a Safety, Health and Environmental Consulting Firm. He was 
previously Vice President of Global Business Support Corporate 
Environment Health and Safety at GlaxoSmithKline and Chair of 
the American Society of Safety Engineers.
    We thank all of you for coming and sharing your expertise 
with us and Dr. Michaels, we're going to begin with you.

  STATEMENT OF DAVID MICHAELS, PH.D., RESEARCH PROFESSOR AND 
   ASSOCIATE CHAIRMAN OF THE DEPARTMENT OF ENVIRONMENTAL AND 
OCCUPATIONAL HEALTH, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, 
                              DC.

    Mr. Michaels. I would like to thank Chairperson Murray and 
Ranking Member Isakson for inviting me to testify here today. 
Occupational illnesses and injuries are a serious and 
significant public health problem. BLS statistics, the ones 
OSHA relies on to make claims about the state of workplace 
injuries and illnesses dramatically underestimate the burden 
and therefore also the costs of work-related conditions.
    Recent sophisticated studies have shown BLS data to be 
incomplete and misleading. Researchers at Michigan State 
University, using the capture/recapture method, identified the 
portion of those cases reported to workers' compensation and 
other data systems that are also captured in the BLS reporting 
system. The researchers found that BLS statistics include only 
about a third of all work-related injuries and illnesses. Two 
thirds are simply missed. So using the Department of Labor's 
data might conclude the risk of injury in any given year is 
about 1 in 15. The actual risk is probably closer to 1 in 5.
    Senators, you have no doubt been told that the rate of 
workplace injuries is decreasing but using data logs completed 
by employers, BLS reports the rate of occupational injuries has 
been declining steadily for the last 15 years, dropping 36 
percent between 1992 and 2003.
    A newly published analysis of these data attributes 83 
percent of this decline to changes in OSHA recordkeeping rules. 
These findings are also supported by the results of a different 
study, which found that from 1995 to 2003, there was no drop in 
occupational traumatic injuries reported to a trauma registry, 
although BLS reported injuries were decreasing.
    The accuracy and completeness of occupational illness 
statistics are even more questionable. Most occupational 
illnesses that are caused by toxic exposures are never recorded 
in any system as work-related, either because they occurred 
after the worker left the employment where the exposure 
occurred or because the link with occupational exposure was 
never made.
    The second point I'd like to make today that is in the area 
of diseases caused by toxic exposures, OSHA has done little to 
protect workers from emerging hazards and does a poor job 
protecting workers from any other older industry hazards.
    Members of this committee, on April 26, 2002, exactly 5 
years ago today, the CDC published a well disseminated report 
about the risk of a terrible and sometimes fatal disease, 
bronchiolitis obliterans. They found the disease in workers in 
microwave popcorn factories. Dozens of workers at factories 
where artificial butter flavors are produced, mixed or applied 
have become sick and at least three workers have died. Others 
are awaiting lung transplants.
    While the index cases were seen at microwave popcorn 
factories, scientists now recognize a potential health risk to 
thousands of other food industry employees using diacetyl, the 
primary component of artificial butter flavor. Eight months 
ago, two unions petitioned OSHA for an emergency temporary 
standard to protect workers from this chemical. The petition 
also asked OSHA to initiate a national emphasis program 
focusing on all factories where workers were exposed to the 
chemical. I was among a group of 42 scientists who signed a 
letter to the Department of Labor in support of the petition.
    OSHA's response to this occupational crisis has been 
minimal at best. Given the severity of the health effects, one 
has to wonder, where was OSHA's sense of urgency? Workers lungs 
are being destroyed by these exposures and for months, the 
agency's only response was to say the matter was under study. 
One OSHA official was quoted in a newspaper saying the agency's 
review of the petition might take 2 years. Then, 2 days ago, 
perhaps in anticipation of the congressional hearings this 
week, OSHA announced a National Emphasis Program limited to 
microwave popcorn plants.
    OSHA's decision to focus the program solely on the 
microwave popcorn industry is misguided at best and cynical at 
worst. For the last 5 years, since the CDC alert, OSHA 
standards and enforcement have been nothing. Now, with Congress 
finally focusing on the agency, OSHA has chosen to use its 
scarce resources in the one part of the food industry where 
NIOSH has already done extensive work assisting employers in 
controlling exposure.
    Cases of bronchiolitis obliteran have been identified among 
workers that manufacture and mix flavorings as well in bakeries 
and snack food factories. One worker developed this disease 
from mixing flavoring chemicals for dog food. Why would OSHA 
inspect these factories or the large, industrial bakeries where 
diacetyl containing products like Twinkies are manufactured?
    Diacetyl is not the only chemical OSHA should regulate but 
does not. There are huge gaps in OSHA standards and for the 
chemical hazards that OSHA does regulate, the exposure limits 
are distressingly out of date.
    I strongly believe that to better protect American workers 
from workplace hazards, OSHA needs to move away from hazard-
specific standard setting. I outline in my testimony some steps 
OSHA could implement immediately. Others will require 
legislation.
    In summary, my answer to the question posed in this 
hearing, is OSHA working for working people, is no. OSHA has 
the potential to contribute to a real reduction in workplace 
injuries and illnesses, preventing countless injuries and 
saving hundreds if not thousands of lives each year. Sadly, it 
is not fulfilling this promise.
    I hope this committee will assist in moving OSHA in the 
right direction for being an agency fully committed to 
protecting the health and safety of America's workers. I'd be 
happy to answer any of your questions.
    [The prepared statement of Mr. Michaels follows:]
          Prepared Statement of David Michaels, Ph.D., M.P.H.
    My name is David Michaels. I am an epidemiologist. I am Research 
Professor and Acting Chairman of the Department of Environmental and 
Occupational Health at The George Washington University School of 
Public Health and Health Services, and Director of the Project on 
Scientific Knowledge and Public Policy (SKAPP). From 1998 to January 
2001, I served as Assistant Secretary of Energy for Environment, Safety 
and Health, and was responsible for protecting the health of workers, 
communities and the environment around the Nation's nuclear weapons 
facilities.
    I would like to thank Chairperson Murray, Ranking Member Isakson 
and the other members of the committee for inviting me to testify here 
today.

    The number and cost of preventable work-related injuries and 
illnesses occurring in the United States are unacceptably high. 
Furthermore, the true incidence of these conditions is far higher than 
reported by the Bureau of Labor Statistics since these data do not 
include approximately two-thirds of occupational injuries and 
illnesses.

    Work-related injuries and illnesses are a significant problem--
large numbers of workers are injured, disabled or even killed on the 
job. What is most troubling is that the vast majority of these are 
preventable. The Bureau of Labor Statistics (BLS) reports that in many 
private sector manufacturing jobs, a worker has an annual risk of being 
injured of about one in seven or one in eight. The industries where 
workers have injury rates 2-3 times higher than the rates for the 
entire private sector include truck trailer \1\ and camper 
manufacturing, \2\ iron foundries and truss manufacturing.\3\ Higher 
than average injury rates are not confined to manufacturing jobs; 
workers in hog farming, construction framing and nursing homes are 
examples of groups with dramatically higher risk of work-related 
injury.\4\
    As distressing as these statistics are, however, it is likely that 
the true incidence of workplace injury and illness is far higher than 
BLS reports, since the Labor Department's estimates clearly and 
dramatically underestimate the number of workers injured.
    NIOSH-funded researchers at Michigan State University, led by Dr. 
Kenneth Rosenman, applied a capture-recapture methodology to identify 
the portion of those occupational injuries and illnesses reported to 
the workers compensation and other systems are also captured in the BLS 
reporting system that serves as the basis for national statistics on 
workplace injury and illnesses--and widely used to make statements 
about both the need for and success of OSHA. The researchers found that 
BLS statistics include only about one-third of all work-related 
injuries and illnesses. Two-thirds are simply missed.\5\ (This is not 
the first study to report this problem. An earlier study by a different 
group of researchers estimated the BLS missed between 33 percent and 69 
percent of all injuries.\6\)
    How does this translate into the risk faced by individual workers? 
Using the comprehensive estimate of work-related injuries and 
illnesses, the Michigan State researchers estimated that one in every 
five workers in Michigan develops a work-related injury or illness 
(although this figure may be somewhat inflated because some workers 
have more than one injury or illness per year). If only the BLS 
underestimate was used, it would appear that the risk was only 1 in 15.
    This approach is useful in estimating the true incidence of work-
related injury, but this method cannot overcome the structural 
impediments to collecting accurate data on occupational illnesses. Most 
occupational illnesses that are caused by toxic exposures are never 
recorded as work-related, either because they occurred after the worker 
left the employment where the exposure occurred or because the link 
with occupational exposure was never made.

    OSHA enforcement does not appear to be effective in further 
reducing injury rates. While BLS reports a decrease in injury rates, 
sophisticated statistical analyses indicate that most of this decrease 
can be attributable to changes in OSHA recordkeeping rules.

    Even with the limitations of the BLS data system, it seems 
reasonable to conclude that OSHA has made an important contribution to 
reducing work-related fatalities, since these are the workplace events 
most likely to be reported in the BLS system. The occupational fatality 
rate has dropped from 10 (per 100,000 workers) in 1974 \7\ to 4 in 2005 
(although part of this decrease may be attributable to the changes in 
recording rules discussed below).\8\ Despite this improvement, this 
still means that about 16 U.S. workers die each day on the job from 
preventable causes like falls from elevated platforms, trench 
collapses, explosions, violence, and vehicle crashes.\9\
    Using data from the Survey of Occupational Injuries and Illnesses, 
based on OSHA logs, BLS reports that the rate of occupational injuries 
and illnesses has been declining steadily for the last 15 years, with a 
35.8 percent decrease seen between 1992 and 2003. Given the decrease in 
manufacturing and mining jobs and the general shift in the U.S. economy 
to less hazardous jobs, combined with the decrease in OSHA's regulatory 
activities (the number of OSHA inspectors decreased from 1,300 to 1,100 
between 1990 and 2003), observers have questioned whether the reported 
drop in injury rates could be attributed to OSHA's enforcement 
activities.
    A sophisticated analysis of BLS data by two University of Illinois 
scientists, just published online by the journal Occupational and 
Environmental Medicine, attributes 83 percent of the decline in 
workplace injuries and illnesses between 1992 and 2003 to changes in 
OSHA recordkeeping rules.\10\ These findings are supported by the 
results of a different study by the same researchers who found that 
from 1995 to 2003, there was no drop in occupational traumatic injuries 
reported to the Illinois Trauma Registry.\11\
    In terms of occupational illnesses, OSHA has been successful in 
reducing exposures to certain widely recognized chemical hazards, and 
as a result, has unquestionably saved thousands of lives. Before OSHA 
issued its first asbestos standard, uncontrolled exposure to this 
carcinogen was widespread. The OSHA lead standard has no doubt 
prevented many cases of lead poisoning. The OSHA cotton dust standard 
eliminated byssinosis, a once common disease among U.S. textile 
workers.\12\ But these successes from decades past should not distract 
us from the reality of today's occupational health problems. There are 
huge gaps in OSHA standards and, for the chemical hazards that OSHA 
does regulate, the permissible exposure limits are distressingly out of 
date.
    OSHA currently enforces permissible exposure limits for only about 
500 chemicals, a small fraction of the thousands of substances present 
in the American workplace. OSHA even lacks standards for some of the 
more common chemicals; there are OSHA standards for fewer than 200 of 
the approximately 3,000 chemicals characterized by the EPA as High 
Production Volume (more than a million pounds of the substance is 
produced or imported each year). In the more than 35 years since OSHA 
began it has issued new standards for only about 30 substances.
    The remaining exposure limits were adopted by OSHA in 1970, from 
the recommendations of private voluntary organizations like the 
American Conference of Governmental Industrial Hygienists (ACGIH). Many 
of these exposure limits were already out of date in 1970, when OSHA 
adopted them. Moreover, these are not comprehensive standards with 
requirements for employers to conduct exposure monitoring, provide 
medical surveillance or worker training, but only exposure limits. As a 
result, for most hazardous chemicals, OSHA's standards are either 
inadequate or totally absent.
    One could write a book about the hazards that OSHA has failed to 
regulate adequately. Here are a few examples:

Beryllium \13\

    Beryllium is a remarkable metal, lighter than aluminum yet stiffer 
than steel. Its alloys and compounds exhibit a host of unusual 
technical characteristics. At some point in almost every production 
process involving beryllium, fine dust or fumes of the metal or its 
compound are released into the air. Breathing the tiniest amounts can 
cause disability and death from chronic beryllium disease. This metal 
is a vital component of nuclear weapons; for many years, the U.S. 
Department of Energy (DOE) was the largest consumer of beryllium in the 
United States. The current OSHA beryllium standard, 2 ug/m\3\, was 
calculated by two Atomic Energy Commission scientists sitting in the 
back seat of a taxicab in 1948. By the early 1990s, DOE recognized the 
standard was not adequately protective. In 1999, during the period I 
was Assistant Secretary, DOE issued a new standard 10 times 
stronger.\14\ At the time, OSHA acknowledged that DOE was doing the 
right thing with its radically restrictive beryllium standard. Almost 9 
years ago, the Assistant Secretary of Labor for OSHA wrote,

          ``. . . we now believe that our 2 ug/m\3\ PEL does not 
        adequately protect beryllium-exposed workers from developing 
        chronic beryllium disease, and there are adequate exposure and 
        health effects data to support [DOE's] rulemaking.''

    The letter continued:

          Cases of chronic beryllium disease have occurred in 
        machinists where 90 percent of the personal exposure samples 
        found levels of beryllium to be below the detection limit of 
        0.01 ug/m\3\. . . . Viewed from OSHA's regulatory perspective, 
        these DOE study results document risk of sensitization to 
        beryllium of 35-40 per 1,000 workers and risk of chronic 
        beryllium disease to machinists of 94 per 1,000.\15\

    There is really no longer any debate over the inadequacy of the 
OSHA beryllium standard. The beryllium industry has acknowledged that 
the current OSHA standard of 2 ug/m\3\ is not adequately protective--
the industry's experts recognize that workers get sick at exposure 
levels below the current OSHA standard.\16\

    In 2000, OSHA committed itself to issuing a more protective 
standard, this time by the end of 2001,\17\ but in 2001, early in the 
first term of the George W. Bush administration, the agency did a quick 
about-face and announced that the agency needed ``a substantial amount 
of information'' before it would consider new regulation.\18\ Today, 
the Federal Government finds itself in the embarrassing position of 
explaining why the employees of DOE and its contractors are now covered 
by a workplace rule 10 times more protective than the one covering 
workers in the private sector.

Hexavalent Chromium \19\

    Since coming into office, the Bush administration has issued only 
one new standard protecting workers from a hazardous chemical: 
hexavalent chromium (CrVI). The standard was issued only because a 
Federal court decision required OSHA to do so. Until last year, OSHA's 
standard was 52 ug/m\3\; the new standard is 5 ug/m\3\. This is 
certainly an improvement, although OSHA itself estimates that for every 
1,000 workers exposed to 5 ug/m\3\ for a working lifetime, between 10 
and 45 will develop lung cancer.
    By the early 1950s, there was plenty of evidence that hexavalent 
chromium was a lung carcinogen. The old standard of 52 ug/m\3\ was 
based on data that predated even these 1950s studies. The old standard 
came from a 1943 recommendation by the American National Standards 
Institute, applying data contained in reports from the 1920s. The 1943 
recommendation was chosen because it provided a level of chromium 
exposure that would not result in holes developing in the nasal septum 
of exposed workers.
    When OSHA was starting out in the early 1970s, the cancer risk of 
CrVI was well understood. The new agency adopted the old voluntary 
limit, but recognized a change was necessary. In 1975, NIOSH urged a 
limit of 1 ug/m\3\, basing this recommendation on dozens of studies, 
which were remarkable at the time for their focus on this single 
carcinogen. Today, OSHA estimates that more than 500,000 U.S. workers 
are exposed to CrVI.\20\ It took 30 years and a court order for OSHA to 
issue a new standard, albeit one allowing exposure five times higher 
than NIOSH recommended in 1975.

Diacetyl \21\

    Diacetyl is a commonly used food flavoring and is the primary 
constituent of artificial butter flavoring. There is compelling 
scientific evidence linking occupational exposure to diacetyl to 
bronchiolitis obliterans, a rare, debilitating and sometimes fatal lung 
disease. On April 26, 2002, exactly 5 years before the date of this 
hearing, NIOSH published a widely disseminated report about the risk of 
bronchiolitis obliterans in microwave popcorn factories. Dozens of 
workers at factories where these flavors are produced, mixed or applied 
have become sick, and at least three workers have died. Others are 
awaiting lung transplants. While the index cases were seen at microwave 
popcorn factories, scientists now recognize a health risk to thousands 
of other food industry employees using diacetyl in manufacturing both 
artificial flavorings and associated products including candy, 
pastries, and frozen foods. The California Department of Health 
Services, for example, recently reported 20 new cases of respiratory 
impairment at factories where flavorings are produced; one of the first 
cases reported in California was in a worker exposed mixing flavors for 
dog food. NIOSH is currently investigating 15 cases of respiratory 
disease, including some workers with bronchiolitis obliterans, among 
the employees at a single Cincinnati, Ohio flavor manufacturing plant.
    In July of 2006, the United Food and Commercial Workers Union 
(UFCW) and the International Brotherhood of Teamsters petitioned OSHA 
for an emergency temporary standard to protect workers from diacetyl. 
SKAPP organized a letter to the Department of Labor, signed by 42 of 
the Nation's leading occupational health scientists and physicians, in 
support of the union petition.
    OSHA's response to this occupational health crisis has been 
minimal, at best. Two days ago, perhaps in anticipation of the 
congressional hearings this week, OSHA announced a ``national emphasis 
program (NEP) to address the hazards and control measures associated 
with working in the microwave popcorn industry where butter flavorings 
containing diacetyl are used.'' \22\ OSHA's decision to focus a NEP 
solely on the microwave popcorn industry is misguided at best and 
cynical at worst. By limiting the program to microwave popcorn 
facilities, OSHA has chosen to use its limited resources in the one 
industry where NIOSH has already done extensive work assisting 
employers in controlling diacetyl exposure. Government scientists know 
more about exposures in popcorn plants than those in any other type of 
factory. Moreover, popcorn plants are among the few factories in the 
country where exposure is likely being well controlled, since they have 
been the subject of a tremendous amount of work by NIOSH. Cases of 
bronchiolitis obliterans have been identified among workers that 
manufacture and mix flavorings, as well as in bakeries and snack food 
factories. OSHA makes no mention of visiting any of these factories.
    One of the agency's extremely important enforcement tools is--or 
should be--the ``general duty clause'' \23\ that asserts the obligation 
of employers to provide safe working conditions. Until a few years ago, 
OSHA inspectors encountering situations in which there was an obvious 
hazard but no applicable OSHA standard would cite this clause as the 
legal basis for their enforcement actions. Now this is rarely done. The 
clause has not been invoked in the case of diacetyl, even though such a 
notorious airborne hazard that has caused dozens of workers at numerous 
facilities to contract a serious lung disease would appear to be a 
logical candidate for such action. Instead, in this case OSHA officials 
have taken the position that hazards for which there is no applicable 
OSHA standard do ``not fall within OSHA's jurisdiction.'' \24\

Ergonomic Hazards

    Work-related musculoskeletal disorders (MSDs) constitute the 
largest work-
related injury/illnesses problem in U.S. workplaces, accounting for 
fully one-third of occupational injuries and illnesses reported to 
BLS.\25\ OSHA first issued voluntary ergonomic guidelines for the 
meatpacking industry in 1990, and then-Secretary of Labor Elizabeth 
Dole introduced them by explaining:

        ``These painful and sometimes crippling illnesses now make up 
        48 percent of all recordable industrial workplace illnesses. We 
        must do our utmost to protect workers from these hazards, not 
        only in the meat industry, but all U.S. industries.''

    In 2001, the last year in which the information was collected, a 
meatpacking worker was 30 times more likely to develop a repetitive 
stress injury (RSI) than the average private sector worker.\38\
    In late 1999, OSHA proposed a comprehensive standard to protect 
more than 27 million workers from ergonomic injuries. The agency 
conducted 9 weeks of public hearings and amassed a record of hundreds 
of scientific studies on the association between physical exposures in 
the workplace (e.g., lifting, bending, reaching) and MSDs. Moreover, 
not one, but two National Academy of Science reports also found a 
consistent pattern of scientific evidence from epidemiological and 
biomechanical studies confirming the relationship between workplace 
physical exposures and MSDs.\26\ A final ergonomics standard was 
published in November 2000, but in March 2001, it was repealed by the 
House and Senate under the Congressional Review Act.\27\
    This Senate committee has asked, ``Is OSHA working for working 
people?'' My response is that, when you look at the situation with 
working men and women and ergonomic hazards, the answer is NO. Work-
related musculoskeletal disorders are by far the leading cause of 
workplace injuries, yet there is no OSHA standard to protect workers 
from the hazard of poorly-designed work settings. Ergonomic injuries 
cost employers $15-20 billion annually in workers' compensation costs 
alone,\28\ yet this number one workplace safety and health problem is 
not even mentioned on OSHA's most recent regulatory agenda.\29\
    This Administration's approach to reducing workers' risk of 
ergonomic injuries relies on the employers taking measures voluntarily 
to protect their employees. OSHA's strategy relies primarily on issuing 
guidance documents, one industry at a time. During this 
Administration's 6-year tenure, OSHA has issued just three of these 
documents (i.e., for nursing homes, poultry processing plants and 
retail grocery stores). A workplace hazard of this breadth and 
magnitude cannot be tackled one guidance document at a time.
    On a related matter, at the end of the Clinton administration, OSHA 
published a change in recordkeeping requirements that would have 
required employers to check a special box on their injury/illness log 
if an injury was an MSD. This information would enable OSHA to better 
understand the magnitude and distribution of work-related MSDs. OSHA 
then delayed the effective date, eventually repealing the provision.
    In short, there are many hazards common in the American workplace 
for which OSHA either has no standard or one that is based on old and 
out-dated science. Further, the results of new scientific studies 
appear to have little impact on the OSHA regulatory process.

    Procedural Botox: Congress and the White House have constructed a 
system where it is extremely difficult and expensive to issue new 
standards.

    Blame for the failure of OSHA to issue appropriate health standards 
can be shared among many parties. The primary cause of this failure 
does not rest with the current leadership of the agency, although they 
have demonstrated no commitment to issuing badly needed standards to 
protect workers from deadly hazards. The primary blame rests in a 
system that makes OSHA standard setting inordinately difficult and 
resource-intensive. There are numerous barriers to standard setting, 
including congressionally imposed special reviews by ``small'' business 
employers, OMB imposed regulatory reviews, and increasing demands for 
detailed economic analyses. My colleague Frank Mirer, a Professor at 
the Hunter College School of Health Sciences, has called this 
``procedural Botox.'' I have appended to my testimony a table entitled 
``Limitations on OSHA Standard Setting Beyond OSHA Law,'' prepared by 
Professor Mirer for his testimony earlier this week at a hearing held 
by the House Education and Labor Committee's Subcommittee on Workforce 
Protections. This table lists the numerous impediments to OSHA standard 
setting.
    The well-meaning legislators who wrote the idealistic law that 
created OSHA envisioned an agency that would use the best available 
science to set standards that would protect American workers. As 
scientists learned more about toxic chemicals and other hazards, NIOSH 
would perform the relevant research and OSHA would issue the 
appropriate standard. That was the vision, but the past few decades 
have served as a sobering lesson about how good intentions can go 
astray. When Congress enacted the OSHA law in 1970, it believed the new 
agency would adopt private industry consensus standards as a stop gap 
measure only, then issue new standards based on current research. But 
in the late 1980s, when the agency tried to update several hundred 
workplace chemical exposure limits en masse, it primarily used newer 
industry voluntary standards which were not necessarily as protective 
as a strong public health agency might require. Even so, dozens of 
industry groups took OSHA to Federal court demanding that OSHA address 
each change in a separate rulemaking. The court agreed, ruling in 1992 
that health standards had to be issued one chemical at a time; OSHA 
announced that the outdated standards would remain unchanged.
    Chemical by chemical standard setting would be a painfully time- 
and resource-intensive process for any agency, much less this 
beleaguered one. OSHA doesn't have the staff to work on more than one 
or two standards at a time, and, with no judicial or congressional 
oversight to speed the process, each standard takes years to complete. 
Unless things change radically, only a handful of the thousands of 
chemicals in daily use in American workplaces will ever be the subject 
of an OSHA standard.
    I strongly believe that to better protect American workers from 
workplace hazards, OSHA needs to move away from hazard-specific 
standard setting. There are some steps toward this goal that OSHA could 
implement immediately. Others will require legislation.

    OSHA has abandoned the general duty clause. It is time for the 
agency to start using it again.

    When Congress passed the OSH Act, the bill's authors recognized 
that the agency could not have a standard for every conceivable 
workplace hazard. OSHA doesn't need a new standard if a hazard is 
serious and there are recognized measures to mitigate the hazard. 
Congress gave OSHA the ``general duty clause,'' but the agency now is 
hesitant to use it, even for the most obvious and egregious hazards. In 
September 2004, for instance, a zoo employee was severely mauled by a 
black bear who escaped after its den was left unlocked. OSHA officials 
concluded that no citation could be issued, since OSHA has never issued 
a regulation saying that bears should be prevented from escaping their 
dens.\30\ Does OSHA need a standard saying zoo cages must be locked? 
No, it needs to use the general duty clause when its inspectors 
document hazards.

    OSHA's first priority should be to issue a Comprehensive Workplace 
Safety and Health Program Standard.

    In all of its voluntary programs, like the Voluntary Protection 
Program (VPP) and its ``alliances,'' OSHA emphasizes the importance of 
employers providing a safe workplace, not merely meeting the specific 
requirements on all of OSHA's rules. This is as it should be, and, more 
than anything else, this is the message that should go to all 
employers. The best way to do this would be to issue a Comprehensive 
Workplace Safety and Health Program Standard, in which every employer 
is required to develop and follow a hazard reduction plan, involving 
hazard characterization and abatement.
    I had first hand experience with this sort of requirement. In DOE's 
nuclear safety enforcement system (under the Price-Anderson Act), the 
operator of every nuclear weapons facility must develop its own 
rigorous safety plan. When I sent inspectors out following an 
inadvertent release of radiation, or a report of an accident or near 
accident, the first thing the inspector did was to determine if 
managers were meeting the facility's own plan. If not, they were in 
violation. End of discussion.
    We need the equivalent system in which every employer develops its 
own public health/hazard abatement plan, signed off by the 
corporation's CEO (call it ``Sarbanes-Oxley for Safety and Health''). 
Each firm would be required to survey its facilities for the presence 
of hazards, both real and potential. Based on this survey, the managers 
would develop a plan that addresses all hazards--from digging trenches 
safely to limiting chemical spills, from having well-marked unlocked 
exits to educating all workers about the risks of their jobs. Does this 
sound utopian? Thousands of responsible employers would be in full 
compliance immediately, since this is how they already operate.
    Under the new system, each employer's plan would be public, 
available to workers and community residents to examine and critique. 
It would be certified by the government, State or Federal, depending on 
the details or perhaps certification could fall to private sector 
organizations (like insurance carriers) that would bear some of the 
risk if a plan were found to be inadequate.\31\
    As always, the devil would be in the details, and I'm under no 
illusions about the political difficulty of putting such a sensible, 
reasonable plan into place. But just think how a plan would clarify 
matters for all concerned. Public health protection would boil down to 
the enforcement of two questions:

     Does the employer have a plan that is adequate to protect 
workers, its neighbors and the environment; and
     Is the employer meeting the requirements of its own plan?

    Such clarity would benefit regulators and responsible employers and 
would give irresponsible companies a clear direction for improvement.

    Congress should mandate OSHA issue certain health standards.

    The chromium standard shows that external deadlines are effective 
in overcoming barriers to regulatory action and agency inertia. Without 
reopening the OSH Act, Congress could step in using the appropriations 
process, for example, to require OSHA to issue the standards on 
beryllium and silica, which OSHA staff have been working on for years, 
along with any other standards that are partially completed.

    Congress should authorize OSHA to adopt the current Threshold Limit 
Values List.

    In passing the OSH Act, Congress required the agency to adopt by 
rulemaking (within 2 years) certain national consensus standards, such 
as the Threshold Limit Values of the ACGIH, unless the Secretary 
determines that they would not result in improved safety. OSHA has not 
kept up with recommendations of voluntary organizations. It is time for 
Congress to require OSHA to again adopt the recommendations of 
voluntary organizations like ACGIH, with the same conditions set forth 
in the original OSH Act.\32\
    In conclusion, my answer to the question posed in this hearing, 
``Is OSHA Working for Working People?'' is no. OSHA has the potential 
to contribute to a real reduction in workplace injuries and illnesses, 
preventing countless injuries and saving hundreds if not thousands of 
lives each year. Sadly, it is not fulfilling this promise. I hope the 
members of this committee will assist in moving OSHA in the right 
direction, toward being an agency fully committed to protecting the 
health and safety of America's workers.

          Limitations on OSHA Standard Setting Beyond OSHA Law
------------------------------------------------------------------------

------------------------------------------------------------------------
1970............................  OSHA law passes...
1974............................  EO 11821 (replaced  Inflation Impact
                                   by EO 12044).       Statements.
1978............................  EO 12044 (replaced  Regulatory
                                   by EO 12291).       analysis
                                                       required.
1980............................  Regulatory          Regulatory
                                   Flexibility Act.    Flexibility
                                                       Analysis.
1980............................  Paperwork           OMB approval of
                                   Reduction Act.      information
                                                       collection
                                                       requirements in
                                                       standards, 3-year
                                                       renewal of
                                                       provisions.
1980............................  Supreme Court       Determine
                                   Benzene Decision.   significant risk.
1980............................  DC Court of         Industry-by-
                                   Appeals Lead        industry
                                   Decision.           feasibility
                                                       determination.
1981............................  EO 12291 (modified  Expanded RIA
                                   by EO 12866).       requirements.
1985............................  EO 12498 (modified  Regulatory Agenda
                                   by EO 12866).       approval by OMB.
1988............................  Federal Advisory    Advisory
                                   Committee Act.      committees
                                                       limited in
                                                       number, approved
                                                       by GSA.
1992............................  11th Circuit PEL    Must give full
                                   Update Decision.    rationale for
                                                       exposure limit,
                                                       demonstrate
                                                       actual exposure,
                                                       even if no party
                                                       objects.
1993............................  EO 12866 (modified  Modest changes in
                                   by EO 13252).       previous EO's.
1996............................  Small Business      SBA panels review
                                   Regulatory          and comment on
                                   Enforcement         pre-proposal
                                   Fairness Act.       standards.
1996............................  Congressional       Expedited process
                                   Review Act.         for congressional
                                                       disapproval of
                                                       standards.
2001............................  Information         Process to appeal
                                   Quality Act.        information
                                                       documents from
                                                       agencies.
2002............................  OMB Information     Amplifies process
                                   Quality Act         for complaints
                                   Bulletin.           about information
                                                       used in
                                                       regulation.
2002............................  EO 13252..........  Reorganize
                                                       authority of EO
                                                       12866.
2005............................  OMB Peer Review     Detailed rules for
                                   Bulletin.           external review
                                                       of agency
                                                       decisions.
2007............................  EO 13422..........  Extends OMB
                                                       authority to
                                                       guidance
                                                       documents, adds
                                                       ``market
                                                       failure'' to
                                                       preconditions and
                                                       adds to political
                                                       control of
                                                       rulemaking
                                                       decisions.
------------------------------------------------------------------------
Source: Mirer FE. ``The Breakdown of OSHA Standard Setting.,'' Testimony
  to Subcommittee on Workforce Protections, Committee on Education and
  Labor, U.S. House of Representatives, April 24, 2007.

                               references
\1\ NAICS code 336212; Incidence rate in 2005 was 16.6 compared to 4.4 
    for all private industry. Data available at: http://www.bls.gov/
    iif/oshsum.htm.
\2\ NAICS code 336214; Incidence rate in 2005 was 13.3 compared to 4.4 
    for all private industry. Data available at: http://www.bls.gov/
    iif/oshsum.htm.
\3\ Bureau of Labor Statistics, Table SNR06, Highest incidence rates of 
    total nonfatal occupational injury cases, private industry, 2005. 
    Available at: http://www.bls.gov/iif/oshsum.htm.
\4\ Bureau of Labor Statistics, Table SNR06, Highest incidence rates of 
    total nonfatal occupational injury cases, private industry, 2005. 
    Available at: http://www.bls.gov/iif/oshsum.htm.
\5\ Rosenman KD, et al. How much work-related injury and illness is 
    missed by the current national surveillance system. J Occup Environ 
    Med, 2006;48(4): 357-365.
\6\ Leigh JP, Marcin JP, Miller TR An estimate of the U.S. Government's 
    undercount of nonfatal occupational injuries. J Occup Environ Med. 
    2006;46(1):10-18.
\7\ Testimony of Secretary of Labor Robert Reich before the U.S. House 
    of Representatives, Committee on Education and Labor, April 28, 
    1993, Report No. 103-35.
\8\ http://www.bls.gov/iif/oshwc/cfoi/cfch0004.pdf.
\9\ BLS reported there were 5,702 workplace fatalities in 2005. 
    (Available at: http://www.bls.gov/news.release/pdf/cfoi.pdf) 5,702 
    fatalities divided by 365 days per year is 15.6; an average of 16 
    fatalities per year.
\10\ Friedman LS, Forst LS. The Impact of OSHA Recordkeeping Regulation 
    Changes on Occupational Injury And Illness Trends In The U.S.: A 
    Time-Series Analysis. Occup Environ Med. 2007 Feb 15; [Epub ahead 
    of print].
\11\ Friedman LS, Forst LS. Occupational injury surveillance of 
    traumatic injuries in Illinois, using the Illinois Trauma Registry: 
    1995-2003. J Occup Environ Med 2007; 49(4): 401-10.
\12\ National Institute for Occupational Safety and Health, Work-
    Related Lung Disease Surveillance Report, 2002, Available at: 
    http://www.cdc.gov/niosh/docs/2003-111/pdfs/2003-111e.pdf.
\13\ Materials on the history of the beryllium standard are included in 
    my article ``Doubt is their Product, published in Scientific 
    American in June, 2005, and available at: http://
    defendingscience.org/upload/Doubt-is-their-Product.pdf.
\14\ U.S. Department of Energy. Chronic Beryllium Disease Prevention 
    Program; Final Rule Federal Register 1999;64(235):68854. Available 
    at: http://www.eh.doe.gov/be/docs/berule.pdf.
\15\ Letter from OSHA Assistant Secretary Charles Jeffress to Peter 
    Brush, Acting Assistant Secretary, DOE. August 27, 1998.
\16\ Borak, J. The Beryllium Occupational Exposure Limit: Historical 
    Perspectives and Current Inadequacy. J Occup Environ Med 2006; 48: 
    109-116.
\17\ Department of Labor Semiannual Agenda of Regulations, 65 Federal 
    Register 74120, November 30, 2000.
\18\ Department of Labor Semiannual Agenda of Regulations. 66 Federal 
    Register 61873-61874, December 3, 2001.
\19\ SKAPP's Website includes a history of the failure of OSHA to 
    regulate hexavalent chromium as a carcinogen, and the efforts by 
    the chromium industry to manufacture uncertainty about the 
    material's carcinogenicity. See: http://defendingscience.org/
    case_studies/Chromium-Case-Study.cfm.
\20\ Occupational Safety and Health Administration: Occupational 
    Exposure to Hexavalent Chromium, Final Rule, 71 Federal Register 
    10099-10385, February 28, 2006.
\21\ More details on the failure of OSHA to protect workers from the 
    hazards of diacetyl are at: http://defendingscience.org/
    case_studies/A-Case-of-Regulatory-Failure-Popcorn-Workers-Lung.cfm.
\22\ Occupational Safety and Health Administration. National News 
    Release: ``OSHA announces focus on health hazards of microwave 
    popcorn butter flavorings containing diacetyl,'' April 24, 2007, 
    Available at: http://www.dol.gov/opa/media/press/osha/
    osha20070610.htm.
\23\ Section 5(a)(1) of the Occupational Safety and Health Act of 1970.
\24\ Letter from Olmedo M (Area Director; OSHA Kansas City Area Office) 
    to Powell AR (Humphrey, Farrington, McClain & Edgar, P.C.,). 
    February 28, 2002. 
    Available at: http://defendingscience.org/case_studies/upload/
    OSHA_2002_
    Olmedo_Letter_about_Glister_Mary_Lee.pdf.
\25\ Occupational Safety and Health Administration. Proposed rule on 
    ergonomics. 64 Federal Register 65768, November 11, 1999.
\26\ National Academy of Sciences. Musculoskeletal Disorders and the 
    Workplace: Low Back and Upper Extremities, Washington, DC: National 
    Academies Press, 2001.
\27\ The Congressional Review Act is one provision of the Small 
    Business Regulatory Enforcement Fairness Act of 1996, and a core 
    provision of the GOP's 1994 Contract with America.
\28\ OSHA, Proposed rule on ergonomics, 64 Federal Register 65768, 11/
    23/1999.
\29\ Occupational Safety and Health Administration, Unified Regulatory 
    Agenda, 71 Federal Register 73540, December 11, 2006.
\30\ Worker critical after bear attacks. Chicago Sun Times. September 
    13, 2004. Available at: http://www.findarticles.com/p/articles/
    mi_qn4155/is_20040913/ai_n12558833, discussed in Barab J. Wild 
    animals? Lock the cage--even if there's no OSHA standard. Confined 
    Space Blog. January 18, 2006; http://spewingforth.blogspot.com/
    2005/01/wild-animals-lock-cage-even-if-theres.html.
\31\ Silverstein M. Getting Home Safety and Sound? OSHA at Thirty-Five. 

    Available at: http://www.defendingscience.org/newsroom/upload/
    Silverstein_Complete_Draft.pdf.
\32\ Section 6(a) of the Occupational Safety and Health Act of 1970.

    Senator Murray. Dr. Michaels, thank you very much.
    Ms. Seminario.

 STATEMENT OF PEG SEMINARIO, DIRECTOR, OCCUPATIONAL SAFETY AND 
                HEALTH, AFL-CIO, WASHINGTON, DC.

    Ms. Seminario. Thank you, Senator Murray and Senator 
Isakson, for inviting me to testify today. It is particularly 
appropriate and timely that you're holding this hearing this 
week, several days before April 28, which is both the 
anniversary of OSHA and Workers Memorial Day, a day when we 
remember workers who have been killed or injured on the job.
    The OSH Act of 1970 indeed was landmark legislation. Its 
goal, assuring as far as possible, every working man and woman 
in the Nation, safe and healthful working conditions is one 
that I think we all support. Since that time, significant 
progress has been made but we are a very, very long way from 
fulfilling the promise of safe jobs for American workers.
    As we have heard, the total of workplace gas injuries and 
disease in this country is still enormous. In 2005, there were 
5,734 workers killed by job injuries, an estimated 50,000 
deaths from occupational disease. Ten thousand of those were 
from asbestos-related diseases. On an average day, 16 workers 
are killed in the United States every day.
    The number and rate of job fatalities has fallen 
dramatically since the passage of OSHA. But in recent years, 
the progress has slowed. In the last few years, the job 
fatality rate has essentially remained unchanged. And for some 
groups of workers, the situation is actually getting worse. We 
have seen very, very significant increases in fatalities among 
Hispanic workers and foreign-born workers. Since 1992, 
fatalities among Hispanic workers have increased by 73 percent. 
And the fatality rate for Hispanic workers is 25 percent higher 
than it is for other workers.
    Mr. Michaels has talked quite a bit and focused on the 
issue of under reporting of injuries. Again, I think this is a 
very, very important issue because we really do need to 
understand the true toll of occupational injuries and illnesses 
in this country. And if the recent studies are correct, that 
only one in three job injuries is being reported, then the real 
toll of workplace injuries and illness in this country is not 4 
million but it's 13 to 17 million workers injured on the job 
and that isn't including the occupational disease, which 
actually claim lives and affects so many others.
    The cost, as Senator Murray has pointed out, is enormous 
but those costs are only based on the BLS numbers. So again, 
the real costs are probably three to four times as high and 
those are only the costs to employers. They don't have the cost 
at all that are borne by workers in this country. It's only the 
cost to employers.
    But unfortunately, the Bush administration has done little 
or nothing to address those major hazards that are the major 
source of job fatalities, injury and disease in this country. 
The biggest source of workplace injury is still ergonomic 
hazards. Thirty percent of job injuries are caused by this 
hazard. The ergonomic standard was repealed in 2001 but since 
that time, the Administration has failed to take any meaningful 
action. They said they were going to have a comprehensive 
ergonomics plan but in the last number of years, they have 
issued no new guidelines.
    They take no actions under the General Duty Clause. They've 
done nothing. Thirty percent of workplace injuries and no 
action taken. They've set only one significant safety and 
health standard. They've actually cut the enforcement staff and 
the staff devoted to setting standards in this country.
    I think it is important to realize that OSHA needs to be a 
leader in safety and health and they have, indeed, abandoned 
their leadership role in safety and health in addressing major 
workplace hazards. And instead of addressing the major hazards 
through standard setting, through enforcement, that actually 
move things on a national basis, they've decided to work 
cooperatively with individual employers, trying to get them to 
address problems on a voluntary basis. With the level of 
disease, injury and death we have in this country, we need 
strong leadership and action. We don't need individual 
cooperative programs with employers.
    So we think that the actions that focus on voluntary 
programs, cooperative efforts with individual employers--it's 
the wrong emphasis. There is nothing wrong with those programs 
but they shouldn't be the centerpiece. The centerpiece, the 
foundation still needs to be setting the protections, the legal 
protections that protect workers in this country and taking 
action to enforce them.
    OSHA enforcement, unfortunately, is also very weak. OSHA 
has 800 inspectors federally. They can inspect workplaces once 
every 133 years. I think it is important to note that since 
OSHA was enacted, the workplaces and workers covered under OSHA 
have doubled. OSHA today has fewer people on staff than they 
did in 1975. Double the workers, double the workplaces, fewer 
people working to protect the safety and health of American 
workers.
    So we believe that the Congress really needs to take action 
and provide the kind of leadership that has been lacking to 
strengthen and improve workplace safety and health. We urge the 
committee to focus attention on major safety and health issues, 
including the problems faced by Latino and immigrant workers, 
protecting workers from potential pandemic flu, protecting 
workers from ergonomic hazards and to a real, in-depth 
investigation into the true toll of occupational injuries and 
illnesses in this country.
    And we urge you to take action to fill the key gaps in 
protection that only changes in the OSHA law can bring and that 
includes extending coverage to all workers.
    As we approach Workers Memorial Day and the 36th 
anniversary of OSHA on this April 28th, we ask the Congress and 
the Nation to recommit to the promise of the Safe Job for every 
American worker that was made more than three decades ago and 
to do everything--everything possible to ensure that this 
promise is finally fulfilled. Thank you.
    [The prepared statement of Ms. Seminario follows:]
                  Prepared Statement of Peg Seminario
    Senator Murray, Ranking Member Isakson and other members of the 
committee, my name is Peg Seminario. I am Director of Safety and Health 
for the AFL-CIO, where I have worked for the past 30 years on a wide 
range of regulatory and legislative initiatives on worker safety and 
health. I appreciate the opportunity to testify at today's hearing as 
you examine the state of safety and health protections for America's 
workers. It is particularly appropriate and timely that you are holding 
this hearing this week, several days before April 28th, the anniversary 
of when the Occupational Safety and Health Act went into effect. April 
28th is also Workers Memorial Day, the day that the unions in the 
United States and around the globe remember those who have died or been 
injured or diseased due to workplace hazards, and recommit to doing all 
we can to protect workers on the job.
    The Occupational Safety and Health Act of 1970 was landmark 
legislation enacted by the Congress with the goal of assuring ``so far 
as possible every working man and woman in the Nation safe and 
healthful working conditions.'' Since that time, significant progress 
has been made in protecting workers. Job fatalities and injuries have 
declined and exposures to many toxic substances have been substantially 
reduced. But in recent years progress has slowed, and now may be 
reversing.
    Since 1970, the economy has changed greatly, with new hazards 
presented and new groups of workers at risk. The number of workers and 
workplaces covered by the OSH Act today is double what it was in 1970, 
but there are fewer resources available to OSHA to meet its 
responsibilities.
    Health and safety standards are out of date or nonexistent for many 
workplace hazards. Millions of workers still are not covered by the OSH 
Act, and lack even the most basic safety and health protections.
    Under the Bush administration, voluntary efforts and partnerships 
with employers have been favored over mandatory standards and industry-
wide enforcement initiatives. With this approach, OSHA has abandoned 
its leadership role in safety and health, choosing to work with 
individual employers, rather than taking bold action to bring about 
broad and meaningful change in working conditions on an industrywide 
and national level.
    As a result, as a nation we are falling further and further behind 
in protecting workers from serious hazards that cause death, injury and 
disease.
    In 2007, the promise of a safe job for every American worker is far 
from being fulfilled.
  the toll of workplace deaths, injuries and disease is still enormous
    Since the Occupational Safety and Health Act was enacted in 1970, 
job fatalities, injuries and illnesses have been reduced significantly 
as have exposures to toxic substances such as asbestos, lead, benzene 
and cotton dust. But, as vividly demonstrated by the Sago mine disaster 
and other worker safety disasters that recently occurred, too many 
workers remain at risk, and face death, injury or disease as a result 
of their jobs.
    In 2005, on an average day, 16 workers were fatally injured and 
more than 12,000 workers were injured or made ill each day, according 
to BLS reports. These statistics do not include deaths from 
occupational diseases, which claim the lives of tens of thousands 
additional workers each year. But since most of these workers are 
killed or injured one at a time, these events draw little public 
attention. These workers include:

    Brandon Garrett, a 23-year-old oil rig worker who was killed in 
Floyd County Texas on Easter Sunday when he was caught in a winch in 
the oil field.
    Linda Shearer, age 23, from Clay City, Kentucky who died on April 
9th after being struck in the neck by a piece of steel while operating 
a 1,000 ton machine press manufacturing bumpers at a steel parts plant.
    Damon Huhtala, age 26, killed in Harrison, Idaho on April 19th 
while framing a house when a nail from a nail gun pierced his skull.
    Cornelia Salvador Moreno, a 22-year-old, who drowned in a tunnel 
collapse on his first day on the job on April 3rd, in Harris County 
Texas, leaves behind a wife and a 2-week-old daughter.

    The devastation to the family members, friends and co-workers 
caused by job deaths and injuries is enormous. And like the tragedy at 
the Sago mine, the tragedy is compounded because most of these deaths 
and injuries could have been prevented.
    In 2005, there were 5,734 workers killed as a result of traumatic 
injuries and an estimated 50,000 deaths as a result of occupational 
diseases, 10,000 of which were the result of asbestos exposures. The 
number of job fatalities has fallen dramatically since the passage of 
the OSH Act in 1970, when the National Safety Council reported 13,800 
work-related deaths. Similarly fatality rates have also declined from 
18 deaths per 100,000 workers in 1970 to 4.0 deaths per 100,000 workers 
reported in 2005. In recent years, progress in reducing job-related 
deaths has slowed and the job fatality rate has largely been unchanged.
    But for some groups of workers the situation is getting worse.
    Since 1992, when BLS began its Census of Fatal Occupation Injuries 
(CFOI), job fatalities among Hispanic or Latino workers have increased 
by 73 percent, from 533 to 923 deaths. Hispanic workers experience a 
disproportionate number of work-
related fatalities, with a job fatality rate of 4.9/100,000 workers in 
2005 compared to the overall rate of 4.0 for all workers. Fatalities 
among foreign-born workers have also been on the rise, increasing by 63 
percent, from 635 fatalities in 1992 to 1,035 fatalities in 2005.
    Latino and immigrant workers have a high rate of fatalities largely 
because they work disproportionately in dangerous jobs and dangerous 
industries. Many of these workers are unorganized, and do not know or 
are unable to exercise their legal rights. Many do not receive training 
in safety and health and are not provided adequate protection by their 
employers. Moreover, those who are undocumented and lack immigration 
status are particularly vulnerable and fearful to speak out.
                       job injuries and illnesses
    For 2005, the Bureau of Labor Statistics reported 4.2 million 
injuries and illnesses among private sector workers, a slight decrease 
from 4.3 million in 2004. An additional 578,200 injuries and illnesses 
occurred among State and local government employees in the 29 States 
and territories in which these data were collected. The national injury 
and illness rate (private-sector only) in 2005 was 4.6 per 100 workers. 
Since the OSH Act was enacted, the reported rates of job injuries and 
illnesses have declined from a rate of 11.0/100 workers in 1973, with 
biggest declines in manufacturing and construction sectors that have 
received the most intensive oversight by OSHA. In 1973 the reported 
injury and illness rate in manufacturing was 15.3/100, compared to 6.3/
100 in 2005; and the rate in construction was 19.8/100 in 1973 compared 
to a rate of 6.3/100 in 2005.
    In 2005, hospitals and nursing homes reported much higher injury 
and illness rates than manufacturing and construction, with rates of 
8.1/100 and 9.1/100, respectively. And as the economy has shifted 
toward a service economy, more and more of the job injury burden is 
being born by service sector workers. In 2005, 8 of the 14 industries 
that reported more than 100,000 workplace injuries and illnesses were 
in the service sector. Despite this shift in the economy OSHA remains 
largely focused on the construction and manufacturing sectors, with 
major hazards in the service sector industries such as ergonomics, 
airborne infectious diseases and violence unregulated and only limited 
numbers of inspections conducted in these industries.
    Musculoskeletal disorders (MSDs), such as back injuries, carpal 
tunnel syndrome, and other repetitive strain injuries, that result from 
ergonomic hazards, continue to be the largest source of job injuries, 
accounting for nearly one-third of all injuries and illnesses. For 
2005, BLS reported 375,540 serious musculoskeletal disorder (MSD) cases 
that resulted in days away from work.
    OSHA under the Bush administration has totally failed to address 
this leading workplace injury problem. In 2002, after the ergonomics 
standard was repealed, the Administration announced a ``comprehensive 
plan'' on ergonomics that included developing guidelines for hazardous 
industries, enforcement under the general duty clause, outreach and 
research. But since that time little has been done. Only three industry 
guidelines have been issued--on nursing homes, poultry, and retail 
groceries--the last one in 2004. Only 17 general duty citations have 
been issued, the last one in 2005. The Bush administration has stated 
that 408 ergonomic hazard warning letters have been issued to employers 
since 2002. But to date no followup inspections have been done to 
determine if hazards have been abated.
  reported cases greatly understate the job injury and illness problem
    While the BLS statistics show that occupational injury and illness 
are declining, numerous studies have shown that the government survey 
of occupational injury and illness is failing to capture a large 
proportion of the job injuries and illnesses that are occurring. The 
BLS Annual Survey of Injuries and Illnesses is based upon data that is 
recorded by employers on the OSHA Injury and Illness Log. If the 
injuries and illnesses are not recorded on the OSHA Log, they are not 
captured in the government injury and illness statistics. This is in 
contrast to the BLS Census of Fatal Occupational Injuries that collects 
data from a number of sources in addition to employers' OSHA Logs.
    A recent study published in the April 2006 Journal of Occupational 
and Environmental Medicine that examined injury and illness reporting 
in Michigan found that the BLS Annual Survey missed more than \2/3\ of 
occupational injuries and illnesses.\1\ The study conducted a detailed 
comparison of injuries and illnesses reported in five different 
databases--the BLS Annual Survey, the OSHA Annual Survey, the Michigan 
Bureau of Workers' Compensation, the Michigan Occupational Disease 
reports and the OSHA Integrated Management Information System. It found 
that during the years 1999, 2000 and 2001, the BLS Annual Survey, which 
is based upon employers' OSHA logs, captured approximately 33 percent 
of injuries and 31 percent of illnesses reported in the various data 
bases in the State of Michigan.
---------------------------------------------------------------------------
    \1\ Rosenman, K.D., Kalush, A., Reilly, M.J., Gardiner, J.C., 
Reeves, M., and Luo, Z., ``How Much Work-Related Injury and Illness is 
Missed by the Current National Surveilance System?'', Journal of 
Occupational and Environmental Medicine, Vol. 48, No. 4, April 2006.
---------------------------------------------------------------------------
    It is important to note that this undercount does not reflect those 
injuries and illnesses that were not reported or included in the 
databases examined. For example, injuries among self-employed 
individuals who are not covered by OSHA or workers compensation are not 
included. Also, injuries not reported by workers are also not accounted 
for.
    The results of the Michigan study as well as other research 
indicate that the true toll of workplace injuries in the United States 
is likely to be 3 to 4 times that reported annually by the BLS. Thus 
the true toll of injuries is in the range of 13 to 17 million annually.
    The causes of underreporting are many and varied. Employers may not 
report injuries to keep workers' compensation costs low, to remain 
eligible for government contracts that require a good injury record, or 
to avoid being placed on OSHA's inspection targeting list, which is 
compiled based upon employers' injury rates. Increasingly, employers 
are implementing programs that provide incentives to workers not to 
report injuries. At the same time, practices and policies are being 
implemented that discipline workers (including termination) if they 
report injuries.
    The underreporting of workplace injuries and illnesses is a 
significant problem that must be addressed. Injury and illnesses 
statistics are used by OSHA as the primary indicator of an employer's 
or industry's safety and health performance. Injury and illness rates 
determine what industries and employers are inspected, and what 
employers are accepted into agency voluntary compliance programs. These 
rates are also used by OSHA to evaluate the effectiveness of its 
programs and initiatives.
    The Occupational Safety and Health Act directs the Secretary of 
Labor to ``compile accurate statistics on work injuries and 
illnesses.'' Despite this mandate and despite the mounting evidence 
that injury and illness data is woefully incomplete and unreliable, 
OSHA has largely ignored the issue of underreporting and undercounting 
of workplace injuries and illnesses.
    Reliable data is needed to have an accurate picture of the true 
nature and toll of workplace injuries and illnesses, to develop 
policies and initiatives to address identified problems and to assess 
the effectiveness of efforts to reduce this toll and address safety and 
health hazards. We ask the Congress to examine in detail the extent and 
causes of underreporting of injuries and illnesses and determine the 
actions that can be taken to improve reporting and the accuracy of 
data.
          the cost of occupational injuries and deaths is high
    The cost of occupational injuries and death in the United States is 
staggering. In March 2007, Liberty Mutual Insurance, the Nation's 
largest workers' compensation insurance company, released its 2006 
Workplace Safety Index on the leading causes and costs of compensable 
work injuries and illnesses based on 2004 data.\2\ The report found 
that workplace injuries cost U.S. employers $48.6 billion--nearly $1 
billion per week--in direct costs alone (medical and lost wage 
payments). When indirect costs (e.g., overtime, training and lost 
productivity) are taken into account, the costs rise to between $145.8 
billion and $291.6 billion annually. But these costs are only for 
disabling injuries, and are based on BLS data; so do not reflect the 
cost of the significant number of injuries and illnesses that are not 
captured in the BLS system.
---------------------------------------------------------------------------
    \2\ 2006 Liberty Mutual Workplace Safety Index. Report available 
at: http://www.wausau.com/omapps/
ContentServer?cid=1078452376750&pagename=wcmInter%2FDocument%2FShowDoc&c
=
Document.
---------------------------------------------------------------------------
    Moreover, the Liberty Mutual report also does not capture those 
costs of workplace injuries and illnesses that are born by workers, 
their families and the government, which are growing as workers' 
compensation coverage and benefit levels have been reduced.
    A 2004 study conducted by researchers at the Rand Institute for 
Civil Justice found that 37 percent of those receiving Social Security 
Disability were disabled due to a workplace injury or illness.\3\ The 
majority of these disabilities were musculoskeletal disorders (58 
percent). Few of these individuals--only 4.7 percent--received workers 
compensation. The Rand study estimates that occupational injuries and 
illnesses account for $22.1 billion annually in Social Security 
Disability payments and $11.0 billion in Medicare expenditures.
---------------------------------------------------------------------------
    \3\ Reville, R.T. and Schoeni, R., ``The Fraction of Disability 
Caused at Work,'' Social Security Bulletin, Vol. 65 No. 4, 2003/2004.
---------------------------------------------------------------------------
              job safety resources are woefully inadequate
    Under the Occupational Safety and Health Act, Federal OSHA and the 
State OSHA plans have responsibility for overseeing the safety and 
health of more than 131 million U.S. workers. But OSHA's resources 
available are woefully inadequate to meet this responsibility and to 
address the enormous toll of workplace death, injury and disease.
    Since the passage of the OSH Act, the number of workplaces and 
number of workers under OSHA's jurisdiction has more than doubled, 
while at the same time the number of OSHA staff and OSHA inspectors has 
been reduced. In 1975, Federal OSHA had a total of 2,405 staff 
(inspectors and all other OSHA staff) responsible for the safety and 
health of 67.8 million workers at more than 3.9 million establishments. 
In 2006, there were 2,208 Federal OSHA staff responsible for the safety 
and health of 131.5 million workers at 8.5 million workplaces.
    For Fiscal Year 2007, the Federal OSHA budget is $485 million. This 
amounts to $3.70 per worker.
    Since the Bush administration took office in 2001, OSHA's budget 
has been reduced by $17.5 million in real dollar terms, and 197 
positions eliminated. One-
hundred-forty of these positions have been in Federal enforcement, and 
13 in the standard setting program.
    The Bush administration's annual OSHA budget requests have 
reflected the Administration's policies toward worker protection. They 
have repeatedly favored voluntary compliance over enforcement and 
programs directed at employers over those for workers. Fiscal year 2008 
is no different. This year's budget request seeks $7 million in 
additional funding for employer compliance assistance programs, 
including a $4.6 million increase and 13 new FTEs for the Voluntary 
Protection Program. At the same time, the funding request for Federal 
enforcement maintains the program at current levels. And while 
significant increases are sought in outreach programs for employers, 
the Bush administration has once again proposed to eliminate all 
funding for OSHA's worker training and education program.
    The Bush administration proposed funding for employer compliance 
assistance programs in fiscal year 2008 is $134.1 million with no 
funding proposed for worker training and outreach programs. It is worth 
noting that when OSHA initiated its employer compliance assistance and 
worker training programs in the 1970's that these programs were funded 
at similar levels of approximately $17 million/year.
                osha enforcement is infrequent and weak
    When it comes to job safety enforcement it is clear that OSHA lacks 
sufficient resources and teeth. A combination of too few OSHA 
inspectors and low penalties makes the threat of an OSHA inspection 
hollow for most employers.
    In fiscal year 2006, there were 2,112 Federal and State OSHA 
inspectors responsible for enforcing job safety and health protections. 
In fiscal year 2006, the 818 Federal OSHA inspectors conducted 38,589 
inspections and the 1,294 inspectors in State OSHA agencies combined 
conducted 58,367 inspections. There were a total of 96,956 inspections 
at the 8.5 million workplaces covered by the OSH Act.
    At its current staffing and inspection levels, it would take 
Federal OSHA 133 years to inspect each workplace under its jurisdiction 
just once. Inspection frequency is better in States with OSHA-approved 
plans, yet still far from satisfactory. In these States, it would now 
take the State OSHA's a combined 62 years to inspect each worksite 
under State jurisdiction once. In contrast, in the Nation's mines, 
which are subject to the Mine Safety and Health Act, there are regular 
inspections--at least four per year in underground mines and two per 
year in surface mines.
    The current level of Federal and State OSHA inspectors provides one 
inspector for every 63,670 workers. This compares to a benchmark of one 
labor inspector for every 10,000 workers recommended by the 
International Labor Organization for industrialized countries.\4\ In 
the States of Arkansas, Florida, Delaware, Nebraska, Georgia, Illinois, 
Louisiana, Mississippi and Texas, the ratio of inspectors to employees 
is greater than 1/100,000 workers.
---------------------------------------------------------------------------
    \4\ International Labor Office. Strategies and Practice for Labor 
Inspection, G.B.297/ESP/3. Geneva, November 2006. The ILO benchmark for 
labor inspectors is one inspector per 10,000 workers in industrial 
market economies.
---------------------------------------------------------------------------
    Federal OSHA's ability to provide protection to workers has greatly 
diminished over the years as the number of workplaces and workers has 
grown, and agency resources have largely stayed the same and for some 
programs even declined. When the AFL-CIO first analyzed this issue in 
its first report ``Death on the Job: The Toll of Neglect'' in 1992, 
Federal OSHA could inspect workplaces under its jurisdiction once every 
84 years, compared to once every 133 years at the present time.
    The majority of OSHA inspections have always been conducted in 
manufacturing and construction, which have traditionally had high 
injury and illness rates. But, the service sector now accounts for 83.4 
percent of the Nation's employment, with many of these industries, such 
as health care and nursing homes experiencing both high rates and 
numbers of injuries and illnesses. But the OSHA program has failed to 
keep up with these and other changes in the economy, and focuses little 
attention on these growing sectors.
    The Occupational Safety and Health Act provides for citations and 
penalties for employers who violate the law. The maximum penalty for a 
serious violation--one which poses a substantial probability of death 
or serious physical harm to workers--is $7,000. For violations that are 
``willful,'' the maximum penalty is $70,000, with a minimum of 
$5,000.\5\ Few willful violations are issued, only 446 by Federal OSHA 
and 153 by the State OSHA plans in fiscal year 2006.
---------------------------------------------------------------------------
    \5\ Maximum OSHA penalties were last increased by Congress in 1990 
under the Omnibus Budget Reconciliation Act (Public Law 101-508, 104 
Stat. 1388). Penalties for most Federal agencies are increased 
regularly for inflation under the Federal Civil Penalties Inflation 
Adjustment Act of 1990, but OSHA and the IRS are specifically exempted 
from this statute.
---------------------------------------------------------------------------
    Penalty levels assessed for violations are well short of the levels 
provided under the act. In fiscal year 2006, serious violations of the 
OSH Act carried an average penalty of only $881 ($873 for Federal OSHA 
and an average of $890 for State OSHA plans). For willful violations 
the average penalty was $32,158 for Federal OSHA and $23,519 for the 
State plans.
    One of the major deficiencies in the OSH Act are its weak 
provisions on criminal penalties for violations of the law that cause 
harm to workers. Under the OSHA law, criminal penalties only apply in 
those instances where an employer willfully violates an OSHA standard 
and the violation causes the death of a worker. Even these violations 
are classified as a misdemeanor, with a maximum sentence of 6 months in 
jail. There are no criminal penalties for violations that cause serious 
injury to workers, or for willful violations that put workers in harms 
way. In contrast, most environmental laws include substantial criminal 
penalties--jail time and fines--for violations of the law that endanger 
the public, even if no specific injuries or deaths occur.
    As a result of the high threshold for criminal penalties, combined 
with the low sanction, few criminal prosecutions are brought under the 
OSH Act. According to OSHA, in fiscal year 2006, the Department of 
Labor referred 11 enforcement cases to the Justice Department for 
criminal prosecution.\6\
---------------------------------------------------------------------------
    \6\ Statement of Edwin G. Foulke, Assistant Secretary, Occupational 
Safety and Health Administration, Before the Subcommittee on Labor, 
Health and Human Services, Education, and Related Agencies, Committee 
on Appropriations, U.S. House of Representatives, March 20, 2007.
---------------------------------------------------------------------------
    Since taking office in 2001, the Bush administration has maintained 
a level of enforcement similar to that during the second term of the 
Clinton administration. But there are differences worth noting. While 
the number of inspections has increased somewhat from 36,350 in fiscal 
year 2000 to 38,589 in fiscal year 2006, the number of workers covered 
by Federal OSHA inspections has declined significantly from more than 
2.0 million in fiscal year 2000 to 1.2 million in fiscal year 2006. The 
length of time spent on inspections has also declined somewhat from 22 
hours/safety inspections in fiscal year 2000 to 18.8 hours in fiscal 
year 2006.
    The average penalty per violation have also declined somewhat from 
$960 for a serious violation in fiscal year 2000 to $873 in fiscal year 
2006, and from $36,487 for a willful violation in fiscal year 2000 
compared to $32,158 in fiscal year 2006.
    The biggest change in OSHA's activities under the Bush 
administration has been a much greater emphasis on and expansion of 
voluntary programs. Since 2001, the number of Voluntary Protection 
Programs has more than doubled from 604 to 1,239 in March 2007. (The 
VPP is a program started in 1982 that provides recognition to employers 
who have better than average injury rates and establish comprehensive 
safety and health programs). The Administration is seeking additional 
funds and staff in the fiscal year 2008 budget for the expansion of the 
VPP program. This request is being made despite findings and 
recommendations from a 2004 GAO study that OSHA's voluntary programs 
should not be expanded until necessary data was collected to allow for 
a full and meaningful evaluation of these programs.
    In addition to an expansion of the VPP program, the Bush 
administration has instituted other voluntary initiatives including its 
``Alliance'' program. These alliances emphasize outreach, education and 
the promotion of safety and health. They have no set criteria, no 
specific outcomes and are less structured than OSHA's other voluntary 
programs (such as consultation and partnerships). Most of the alliances 
are between OSHA and employer groups and have excluded unions from 
participation.
                osha standard setting has come to a halt
    One of OSHA's major responsibilities under the OSH Act is setting 
occupational safety and health standards to protect workers from 
hazards that pose a significant risk of harm. During its first three 
decades, the agency issued groundbreaking standards on hazards such as 
asbestos, lead, benzene and chemical process safety. These standards 
required major action by employers to reduce exposures to hazards and 
to provide training, medical surveillance and protective equipment to 
workers. Numerous studies have documented that these rules have been 
very effective, significantly reducing injuries, fatalities and 
exposures, often at costs much lower than anticipated.
    But over the years, the standard setting process has become more 
difficult and lengthy as court decisions, executive orders and 
legislation have imposed layers of new regulatory analysis and review 
requirements. Industry opposition has also increased adding to the 
difficulty and delays. While in OSHA's early years, major standards 
could be completed in a few years, recent standards have taken 6 to 10 
years.
    But under the Bush administration, the situation has gotten much, 
much worse. OSHA standard setting has essentially ground to a halt as 
the Administration has failed to move on important hazards, and instead 
tried to weaken and roll back protections. The first legislative act of 
President Bush in 2001 was to sign legislation repealing the OSHA 
ergonomics standard, which was issued in 2000 to address the major 
source of workplace injuries. Soon after, the Administration moved to 
withdraw dozens of safety and health rules from the regulatory agenda, 
ceasing all action on the development of these important safety and 
health measures. Rules withdrawn at OSHA included measures on indoor 
air quality, safety and health programs, glycol ethers and lock-out of 
hazardous equipment in construction. During its first 5 years, the Bush 
administration failed to issue any significant safety and health rules, 
compiling the worst record on safety and health standards in OSHA 
history.
    In February 2006, the Bush administration issued its first major 
final OSHA rule--a standard on hexavalent chromium, issued as a result 
of a lawsuit brought against the agency by Public Citizen and PACE 
International Union (now part of the United Steelworkers).
    In February 2007, a final standard updating OSHA's electrical 
safety requirement was issued. This rule largely codified changes 
previously adopted in the National Electrical Code and NFPA standards 
that were already required by many States and localities. The rule 
addresses an important hazard, but with an economic impact of $9.6 
million annually is well under the $100 million OMB threshold for an 
economically significant rule.
    For other rules on the OSHA regulatory agenda, there has been 
little or no action.
    A standard on Employer Payment for Personal Protective Equipment, 
which has been through the rulemaking process, has languished for 8 
years. This rule would require employers to pay for the safety 
equipment that must be provided by employers under OSHA standards. This 
rule is particularly important for low-wage workers and immigrant 
workers who work in dangerous industries like meat-packing, poultry and 
construction.
    In April 2003 the AFL-CIO and eight other union organizations and 
the Congressional Hispanic Caucus petitioned for OSHA to issue the 
final payment for PPE standard. Despite repeated promises that final 
action was forthcoming, from 2004 to 2006 OSHA missed every announced 
target date for completion of the rule. On January 3, 2007, the AFL-CIO 
and the United Food and Commercial Workers (UFCW) filed suit in the 
U.S. Court of Appeals for the District of Columbia asking the court to 
intervene and order OSHA to act. In response to this lawsuit, OSHA has 
told the court that it will issue the PPE rule by the end of November 
2007, barring unforeseen circumstances. However, the Administration has 
refused to commit to issue a final rule that is at least as protective 
as the proposal issued in 1999.
    There are five economically significant regulations still on the 
OSHA regulatory agenda: Crystalline Silica (in the pre-rule stage); 
Confined Spaces in Construction (proposed rule stage); Beryllium (pre-
rule stage); Hearing Conservation for Construction Workers (long-term 
action with the next action undetermined) and Electric Power 
Transmission and Distribution (final rule stage, public hearings held 
in March 2006). But, there is no commitment from OSHA as to when and 
whether they will finalize these rules or will propose rules that are 
in the pre-rule or long-term action stages.
    There also has been no agency regulatory action to address newly 
identified hazards. In February 2007, OSHA denied a union petition for 
an emergency temporary standard to protect health care workers and 
emergency responders in the event of a flu pandemic on grounds that a 
pandemic had not yet occurred. Instead of issuing an emergency 
standard, the Department of Labor instead has decided to rely on 
guidelines and recommendations. In February 2007, OSHA issued 
guidelines on ``Preparing Workplaces for a Pandemic'' and has stated 
that it intends to issue guidelines on protecting health care workers 
and responders in the near future. However, such guidelines are only 
advisory and cannot take the place of an enforceable infection control 
standard, ensuring that comprehensive infection control plans and 
measures are developed and put in place before a pandemic occurs. The 
result is that millions of health care workers and responders remain in 
serious danger and will be unprotected if a pandemic occurs.
    The agency has also failed to respond to a petition for an 
emergency standard on the chemical diacetyl, a butter flavoring agent 
used in microwave popcorn and other foods, that has caused a rare and 
fatal lung disease (bronchiolitis obliterans) in exposed workers. In 
contrast to Federal OSHA, the State of California, which has received a 
similar petition, has moved quickly to draft an emergency diacetyl rule 
and has established a special emphasis surveillance and enforcement 
program in the flavoring industry.
    The result of OSHA's inaction and the slow pace of standard setting 
means that for many significant workplace hazards standards are out of 
date or completely lacking. This is particularly true for toxic 
chemicals. Since the OSH Act was enacted in 1970, OSHA has issued 
comprehensive health standards for only 27 substances. Most of these 
standards were set in the first two decades of the act.
    For approximately 400 additional chemicals, there are permissible 
exposure limits (PELs) in place that govern exposure to these 
substances. However, there are no requirements for monitoring, medical 
exams or other measures that are included in comprehensive OSHA 
standards. These PELs were adopted in 1971 under a provision of the act 
that allowed OSHA to adopt existing government and industry consensus 
standards so a body of regulation could be in place while new standards 
were being developed. These PELs codified the ACGIH Threshold Limit 
Values from 1968. Most of these limits were set by ACGIH in the 1940's 
and 1950's based upon the scientific evidence then available. Many 
chemicals now recognized as hazardous were not covered by the 1968 
limits. In 1989 OSHA attempted to update these limits, but the revised 
rule was overturned by the courts because the agency failed to make the 
risk and feasibility determinations for each chemical as required by 
the act. The result is that many serious chemical hazards are not 
regulated at all by Federal OSHA or subject to weak and out-of-date 
requirements. Some States, including California and Washington, have 
done a better job updating exposure limits, and as a result workers in 
those States have much better protection against exposure to toxic 
substances.
    In recent years the American Industrial Hygiene Association (AIHA), 
major industry groups and labor attempted to reach agreement on a new 
approach to update permissible exposure limits through a shorter 
process that would allow quick adoption of new limits that were agreed 
upon by consensus. Unfortunately those efforts stalled when small 
business groups objected to an expedited process that would apply to a 
large number of chemicals and the Bush administration refused to take a 
leadership role in developing and advancing an improved process for 
setting updated exposure limits.
    Last year, the State of California, moved to establish a new 
process for updating chemical exposure limits, that utilizes a two-part 
advisory committee process to recommend revised or new permissible 
exposure limits. This process is similar to the draft proposal 
developed by the AIHA, groups representing larger employers and labor 
to establish exposure limits through an expedited review process.
    California and many other States have also moved beyond the hazard-
by-hazard approach to addressing workplace hazards. They have 
established standards on workplace safety and health programs that 
require employers to have a program to identify and correct workplace 
safety hazards and involve workers in the process. This systematic 
approach to addressing worker safety problems at the workplace has been 
adopted as a legal requirement in the European Union and many other 
countries as well. The implementation of safety and health programs are 
also the foundation of OSHA's voluntary programs. The development of a 
safety and health program rule was high on OSHA's regulatory agenda for 
many years, and a draft standard was developed in 1998. But in 2002, 
the Bush administration removed the Safety and Health Program rule from 
the regulatory agenda, stopping agency efforts to put this systematic 
framework in place.
    The AFL-CIO urges this committee and the Congress to look closely 
at OSHA standard setting, particularly permissible exposure limits and 
safety and health programs, and to advance legislative proposals that 
will update PELs and put basic requirements for safety and health 
programs in place.
              millions of workers still lack osha coverage
    More than three decades after the passage of the Occupational 
Safety and Health Act, millions of workers still lack basic legal 
protections. The current OSHA law still does not cover 8.6 million 
State and local government employees. The OSH Act only covers State and 
local public employees where a State has adopted a State OSHA plan. In 
21 States and the District of Columbia public employees are not 
covered, despite the fact that they encounter the same hazards as 
private-sector workers.
    Federal Government workers are provided protection under Executive 
Order 12196 that was adopted in 1980. The E.O. applies OSHA standards 
to Federal Government executive branch workers and provides for OSHA 
inspections. But OSHA has no authority to levy fines or to take action 
to enforce the abatement of hazards and violations that are found.
    Similarly, millions who work in the transportation and agriculture 
industries and at Department of Energy contract facilities lack full 
protection under the OSH Act. These workers theoretically are covered 
by other laws, which in practice have failed to provide equivalent 
protection. The void in protection is particularly serious for flight 
attendants. The Federal Aviation Administration (FAA) has claimed legal 
jurisdiction for airline cabin crews but has refused to issue necessary 
workplace safety rules. Efforts by the FAA and OSHA initiated in 2000 
to resolve this situation were jettisoned by the Bush administration, 
which instead has announced a program limited to voluntary activities 
that will be overseen by the FAA.
congressional leadership and action is needed to strengthen and improve 
                  worker safety and health protections
    The safety and health problems faced today by American workers are 
significant and growing. Unfortunately, OSHA has failed to address many 
well-recognized hazards and has not kept up with new hazards or changes 
in the workplace and workforce. After more than three decades since the 
OSH Act was enacted its time for the Congress to turn its attention to 
these problems and to take action to improve worker safety and health 
protections.
    The AFL-CIO urges this committee to focus attention on major safety 
and health issues and the Administration's policies and initiatives 
through ongoing oversight and investigations. Key issues for 
examination include the safety and health problems faced by Latino and 
immigrant workers, protecting health care workers and responders from 
pandemic flu and protecting workers from ergonomic hazards. We also 
recommend that the committee conduct an in-depth investigation into the 
true toll of occupational injuries and illnesses and the reasons why a 
large proportion of job injuries and illnesses are going unreported and 
uncounted.
    Some of the main gaps in worker protections are a result of 
deficiencies in the OSH Act itself. Extending coverage to all workers, 
enhancing civil and criminal penalties, and strengthening whistleblower 
protections for workers who raise job safety concerns require changes 
in the law. The Protecting America's Workers Act that will be 
introduced today addresses these fundamental issues and we urge the 
Congress to act on it expeditiously.
    We also urge the committee to examine the issue of OSHA standard 
setting and regulation, why the standard setting process is no longer 
working and what can be done to fix it and update protections. We 
recommend that the committee examine the standards and standard setting 
practices in California and Washington under their State OSHA programs, 
which are more effective than Federal OSHA. Given the backlog in 
protections at the Federal level, we believe the Congress should 
consider updating the permissible exposure limits for toxic substances 
through legislative action, similar to the procedure that was utilized 
to establish an initial body of regulation under section 6(a) of the 
OSH Act in 1971.
    Congress should also act to increase the resources available to 
OSHA, particularly for its enforcement and standard setting programs, 
so that the agency can move more quickly to set needed standards and 
expand oversight of dangerous workplaces.
    As we approach Workers Memorial Day and the 36th anniversary of 
OSHA on this April 28th, we ask the Congress and the Nation to recommit 
to the promise of a safe job for every American worker, made more than 
three decades ago, and do everything possible to ensure that this 
promise is finally fulfilled.

         Workplace Fatalities Since the Passage of OSHA \1\ \2\
------------------------------------------------------------------------
                                                 Employment    Fatality
               Year                Work deaths   (000) \3\     rate \4\
------------------------------------------------------------------------
1970.............................       13,800       77,700           18
1971.............................       13,700       78,500           17
1972.............................       14,000       81,300           17
1973.............................       14,300       84,300           17
1974.............................       13,500       86,200           16
1975.............................       13,000       85,200           15
1976.............................       12,500       88,100           14
1977.............................       12,900       91,500           14
1978.............................       13,100       95,500           14
1979.............................       13,000       98,300           13
1980.............................       13,200       98,800           13
1981.............................       12,500       99,800           13
1982.............................       11,900       98,800           12
1983.............................       11,700      100,100           12
1984.............................       11,500      104,300           11
1985.............................       11,500      106,400           11
1986.............................       11,100      108,900           10
1987.............................       11,300      111,700           10
1988.............................       10,800      114,300            9
1989.............................       10,400      116,700            9
1990.............................       10,500      117,400            9
1991.............................        9,900      116,400            9
1992\2\..........................        6,217      117,000            7
1993.............................        6,331      118,700            8
1994.............................        6,632      122,400            5
1995.............................        6,275      126,200            5
1996.............................        6,202      127,997          4.8
1997.............................        6,238      130,810          4.7
1998.............................        6,055      132,684          4.5
1999.............................        6,054      134,666          4.5
2000.............................        5,920      136,377          4.3
2001.............................       5,915*      136,252          4.3
2002.............................        5,534      137,700          4.0
2003.............................        5,575      138,928          4.0
2004.............................        5,764      140,411          4.1
2005.............................        5,734      142,894          4.0
------------------------------------------------------------------------
\1\ Fatality information for 1971-1991, from National Safety Council
  Accident Facts, 1994.
\2\ Fatality information for 1992 to 2004 is from the Bureau of Labor
  Statistics, Census of Fatal Occupational Injuries. In 1994, the
  National Safety Council changed their reporting method for workplace
  fatalities and adopted the BLS count. The earlier NSC numbers are
  based on an estimate, the BLS numbers are based on an actual census.
\3\ Employment is an annual average of employed civilians 16 years of
  age and older from the Current Population Survey, adjusted to include
  data for resident and armed forces from the Department of Defense.
\4\ Deaths per 100,000 workers.
*Excludes fatalities from the events of September 11, 2001.


  Estimates of the True Toll of Workplace Injuries and Illnesses  Compared to Bureau of Labor Statistics (BLS)
                                                     Reports
                                                     [2005]
----------------------------------------------------------------------------------------------------------------
                                                                 Estimated 2005 Figures
                                                                 Accounting for Impact    2005 Data Reported by
                                                                    of Undercounting         Bureau of Labor
                                                                 Injuries and Illnesses      Statistics (BLS)
                                                                          \1\
----------------------------------------------------------------------------------------------------------------
Total Number of Nonfatal Injuries and Illnesses in Private                 12.6 million              4.2 million
 Industry.....................................................
Total Nonfatal Injury and Illness Case Rate in Private                             13.8                      4.6
 Industry (Cases per 100 workers).............................
Total Number of Injuries and Illnesses Involving Days Away                  3.6 million              1.2 million
 from Work....................................................
Case Rate for Nonfatal Injuries and Illnesses Involving Days                       4.05                     1.35
 Away from Work (Cases per 100 workers).......................
Total Number of Musculoskeletal Disorders--Cases Involving                    1,126,620                  375,540
 Days Away from Work..........................................
Total Number of Estimated Cases of Musculoskeletal Disorders..                3,792,780                1,264,260
----------------------------------------------------------------------------------------------------------------
\1\ A detailed comparison of individual injury and illness reports from various reporting systems found that
  only one in three workplace injuries and illnesses were reported on the OSHA Log and captured by the Bureau of
  Labor Statistics Survey. This study did not address the number of injuries and illnesses that are not reported
  to any reporting system in the first place. Thus, this study represents a conservative estimate of
  underreporting of the true toll of injuries and illnesses. For more details on the study, see the paper by
  Rosenman, et al., ``How Much Work-Related Injury and Illness is Missed by the Current National Surveillance
  System?'' Journal of Occupational and Environmental Medicine, Vol. 48, pages 357-365, 2006.


                    Federal OSH Budget and Personnel
                     [Budget Fiscal Year 1975-2007]
------------------------------------------------------------------------
                                                        Positions Fiscal
                                                         Year 1975-2007
            Fiscal year                   Budget       (Staff--Full Time
                                                           Equivalent
                                                          Employment)
------------------------------------------------------------------------
2007..............................       $485,074,000              2,173
2006..............................        472,427,000              2,173
2005..............................        464,224,000              2,208
2004..............................    457,500,000 \2\              2,236
2003..............................        453,256,000              2,313
2002..............................        443,651,000              2,313
2001..............................        425,886,000              2,370
2000..............................        381,620,000              2,259
1999..............................        354,129,000              2,154
1998..............................        336,480,000              2,171
1997..............................        324,955,000              2,118
1996..............................        303,810,000              2,069
1995..............................        311,660,000              2,196
1994..............................        296,428,000              2,295
1993..............................        288,251,000              2,368
1992..............................        296,540,000              2,473
1991..............................        285,190,000              2,466
1990..............................        267,147,000              2,425
1989..............................        247,746,000              2,441
1988..............................    235,474,000 \1\              2,378
1987..............................        225,811,000              2,211
1986..............................        208,692,000              2,166
1985..............................        219,652,000              2,239
1984..............................        212,560,000              2,285
1983..............................        206,649,000              2,284
1982..............................        195,465,000              2,359
1981..............................        210,077,000              2,655
1980..............................        186,394,000              2,951
1979..............................        173,034,000              2,886
1978..............................        138,625,000              2,684
1977..............................        130,333,000              2,717
1976..............................        139,243,000              2,494
1975..............................        102,327,000              2,435
------------------------------------------------------------------------
 Source: Occupational Safety and Administration.
\1\ Budget and personnel were increased when the California State plan
  turned back to Federal OSHA jurisdiction.
\2\ Amount after rescission.


                                                                             Fatal Work Injuries by Race, 1992-2005
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      1992     1993     1994     1995     1996     1997     1998     1999     2000   2001\1\    2002     2003     2004     2005
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Fatalities..............................................    6,217    6,331    6,632    6,275    6,202    6,238    6,055    6,054    5,920    5,900    5,534    5,575    5,764    5,734
White.............................................................    4,711    4,665    4,954    4,599    4,586    4,576    4,478    5,019    4,244    4,175    3,926    3,988    4,066    3,977
Black or African American.........................................      618      649      695      684      615      661      583      627      575      565      491      543      546      584
Hispanic..........................................................      533      634      624      619      638      658      707      730      815      895      841      794      902      923
Asian or Pacific Islander.........................................      169      190      179      161      170      195      148      192      185      182      140      158      180      163
American Indian or Alaskan Native.................................       36       46       39       27       35       34       28       57       33       48       40       42       28       50
Other Races/Not Reported..........................................      150      147      141      185      158      114      111      146       68       50       96       50       42       35
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 1992-2005.
\1\ Excludes September 11 fatalities.


                                              Job Safety and Health Appropriations (Fiscal Year 2001-2008)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                             Fiscal year
                    Category                      Fiscal year  Fiscal year  Fiscal year  Fiscal year  Fiscal year  Fiscal year  Fiscal year      2008
                                                      2001         2002         2003         2004       2005 \1\     2006 \6\   2007 CR \7\    Request
--------------------------------------------------------------------------------------------------------------------------------------------------------
OSHA (in thousands of dollars):
    Total.......................................      425,886      443,651      453,256      457,500      464,224      472,427      485,074      490,300
Safety & Health Standards.......................       15,069       16,321       16,119       15,900       15,998       16,462                    16,900
Federal Enforcement.............................      151,836      161,768      164,039      166,000      169,601      172,575                   183,000
State Enforcement...............................       88,369       89,747       91,139       92,000       90,985       91,093                    91,100
Technical Support...............................       20,189       19,562       20,234       21,600       20,735       21,435                    22,100
Federal Compliance Assistance...................       56,255       58,783       61,722       67,000       70,837       72,545                    79,600
State Compliance Assistance.....................       48,834       51,021       53,552       52,200       53,346       53,357                    54,500
Training Grants \3\.............................       11,175       11,175       11,175       10,500       10,423       10,116       10,116            0
Safety & Health Statistics......................       25,597       26,257       26,063       22,200       22,196       24,253                    32,100
Executive Administration/Direction..............        8,562        9,017        9,213       10,000       10,102       10,591                    11,000
                                                 -------------------------------------------------------------------------------------------------------
NIOSH (in thousands of dollars):
    Total.......................................      260,134      276,460      274,899      278,885      285,357     254,401*      254,401      253,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Includes a .83 percent recission, that was part of the final fiscal year 2005 Consolidated Appropriations bill (Dec 8, 2004).
\2\ From the President's Request, Budget of the United States Government, fiscal year 2006--Appendix (2/7/05).
\3\ This line item was previously combined with Federal Compliance Assistance.
\4\ This line item was added in the Senate Appropriations Committee recommendation January 15, 2003.
\5\ This line item was added in the President's fiscal year 2004 budget request.
* $34.8 million transferred to business services. TAP for administrative services eliminated. Direct comparison with NIOSH funding for earlier years,
  which included these administrative costs, cannot be made.
\6\ Reflects 1 percent across the board recission.
\7\ Amounts do not include the 50 percent of costs for salary and benefit increases provided for under the Continuing Resolution for fiscal year 2007
  (House Joint Resolution 20) enacted on February 15, 2007.


                                          Federal OSHA Inspection/Enforcement Activity (Fiscal year 2000-2006)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            fiscal year     fiscal year     fiscal year     fiscal year     fiscal year     fiscal year     fiscal year
                                               2000            2001            2002            2003            2004            2005            2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inspections.............................          36,350          35,941          37,565          39,884          39,246          38,783          38,589
    Safety..............................          27,734          27,989          29,516          31,703          31,499          31,136          31,846
    Health..............................           8,616           7,952           8,049           8,181           7,747           7,647           6,743
    Complaints..........................           8,401           8,362           7,887           7,994           8,082           7,732           7,384
    Programmed..........................          18,343          17,929          20,528          22,452          21,598          21,430          21,497
    Construction........................          19,507          20,238          21,384          22,959          22,404          22,181          22,901
    Maritime............................                             472             416             362             379             381             407
    Manufacturing.......................           8,536           8,060           8,287           8,576           8,770           8,467           7,691
    Other...............................           7,835           7,227           7,532           8,018           7,693           7,754           7,590
Employees Covered by Inspections........       2,089,546       1,491,212       1,483,319       1,609,833       1,520,885       1,561,399       1,213,707
Average Case Hours/Inspections
    Safety..............................            22.0            20.2            19.1            18.8            18.7            19.0            18.8
    Health..............................            35.0            33.4            32.7            34.7            35.6            34.8            34.4
Violations--Total.......................          80,472          78,715          78,247          83,269          86,475          85,054          83,726
    Willfull............................             524             656             392             391             446             726             466
    Repeat..............................           2,012           1,960           1,953           2,115           2,329           2,326           2,544
    Serious.............................          52,489          53,099          54,512          59,474          61,334          60,662          61,085
    Unclassified........................             209             299             263             363             217              70              14
    Other...............................          24,954          22,483          20,896          20,706          21,848          20,968          19,339
    FTA.................................             284             218             231             220             301             302             278
Penalties--Total ($)....................      86,498,127      79,273,622      70,693,165      79,805,630      82,604,990      98,751,227      82,546,815
    Willful.............................      19,119,386      16,469,828      10,540,094      12,419,511      13,339,071      31,431,427      14,985,450
    Repeat..............................       8,876,269       7,816,889       7,479,806       9,094,708       9,327,664       8,454,113       9,559,903
    Serious.............................      50,365,620      48,088,016      47,248,283      50,897,990      53,467,165      52,965,118      53,298,790
    Unclassified........................       3,903,859       3,692,309       2,620,058       3,626,250       2,194,084       1,506,735         558,650
    Other...............................       2,049,916       2,312,062       2,239,423       2,685,997       2,846,313       3,230,440       3,165,197
    FTA.................................       2,183,077         894,518         565,501       1,081,174       1,430,693       1,163,394         978,825
Average Penalty/Violation ($)...........           1,075           1,007             903             958             955           1,161             986
    Willfull............................          36,487          25,106          26,888          31,763          29,908          43,294          32,158
    Repeat..............................           4,412           3,988           3,830           4,300           4,005           3,635           3,758
    Serious.............................             960             906             867             856             872             873             873
    Unclassified........................          18,678          12,349           9,962           9,990          10,111          21,525          39,904
    Other...............................              82             103             107             130             130             154             164
    FTA.................................           7,687           4,103           2,448           4,914           4,753           3,852           3,521
Percent Inspections with Citations                  9.6%            9.4%            8.2%            8.6%            8.0%            7.7%            7.2%
 Contested
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: OSHA IMIS Inspection 6 Reports, fiscal year 2000, fiscal year 2001, fiscal year 2002, fiscal year 2003, fiscal year 2004, fiscal year 2005,
  fiscal year 2006.


    Number of U.S. Establishments and Employees Covered  Per OSHA Full Time Equivalent (FTE) Staff, 1975-2005
----------------------------------------------------------------------------------------------------------------
                                                                  OSHA Full Time
                              Annual Average    Annual Average      Equivalent    Establishments     Employees
         Fiscal Year          Employment \1\  Establishments \1\    (FTE) Staff     Covered Per     Covered Per
                                                                        \2\          OSHA FTE        OSHA FTE
----------------------------------------------------------------------------------------------------------------
2005........................     131,571,623         8,571,144             2,208           3,882          59,589
2000........................     129,877,063         7,879,116             2,259           3,488          57,493
1995........................     115,487,841         7,040,677             2,196           3,206          52,590
1990........................     108,657,200         6,076,400             2,425           2,506          44,807
1985........................      96,314,200         5,305,400             2,239           2,370          43,017
1980........................      73,395,500         4,544,800             2,951           1,540          24,871
1975........................      67,801,400         3,947,740             2,435           1,621          27,845
----------------------------------------------------------------------------------------------------------------
\1\ U.S. Department of Labor, Bureau of Labor Statistics, Employment and Wages, Annual Averages (Total Covered).
\2\ U.S. Department of Labor, Occupational Safety and Health Administration (OSHA).


      Federal OSHA General Duty Citations and Guidelines on  Ergonomic Hazards Under the Bush Administration
----------------------------------------------------------------------------------------------------------------
                                                                   General Duty
                                                                     Citations
                              Year                                   Ergonomic    Status--Number  Status--Number
                                                                      Hazards      Cases Closed    Cases Pending
                                                                     (Number)
----------------------------------------------------------------------------------------------------------------
2001............................................................               0
2002............................................................               0
2003............................................................              12              11               1
2004............................................................               4               4               0
2005............................................................               1               1
2006............................................................               0
                                                                 -----------------------------------------------
    Total.......................................................              17              16               1
----------------------------------------------------------------------------------------------------------------
Source: OSHA web page www.osha.gov. Search of General Duty Citations/Ergonomic Hazards, April 2007, http://
  www.osha.gov/pls/imis/generalsearch.html.

    Ergonomics Guidelines Issued By Bush Administration: Nursing 
Homes--March 2003; Retail Grocery--May 2004; and Poultry Processing--
September 2004.

    Senator Murray. Thank you very much for your testimony.
    Ms. Compagna.

  STATEMENT OF KONNIE COMPAGNA, R.N., NURSE AT VALLEY MEDICAL 
                    CENTER, KENT, WASHINGTON

    Ms. Compagna. Senator Murray, members of the Employment 
Workplace Safety Committee, I thank you for this opportunity. 
My name is Konnie Compagna. I am a Registered Nurse in the 
State of Washington. I work in the birth center of a hospital 
that has approximately 250 beds, near Seattle and I've been a 
nurse for 38 years.
    I'm also a member of the Service Employees International 
Union 1199 Northwest. My union represents 21,000 hospital 
workers in the State of Washington and 1.8 million members 
nationwide.
    I am here to testify that my co-workers--what my co-workers 
and I want you to know. Our government safety net to protect 
workers from health and safety hazards is broken. We lack the 
enforcement ability to deal with the numbers of workplaces and 
the standards to address the variety of hazards that face 
workplace employees today.
    It would take 130 years for OSHA to inspect every 
workplace, even if they just did it once. If OSHA does inspect, 
four or five of these inspectors, I'm told are in the 
manufacturing/construction field. They are not experts in the 
industry. Yet today's workers in hospitals and nursing homes 
have a higher injury rate and illness rate than workers in 
mines, manufacturing or construction.
    There are no standards to prevent neck, back and shoulder 
injury, which is the major cause of injury in our field that 
are being caused by manual lifting and transferring of 
patients. Yet 12 percent of our nurses are leaving the bedsides 
due to these injuries, which is exacerbating the already 
critical nursing shortage.
    There are no standards to prevent workplace violence, which 
is occurring ever more increasingly. A major hazard to the 
sector where nearly half of the nonfatal assaults occur to 
these workers. There are no standards to protect workers from 
pandemic flu, airborne biological agents and the government is 
telling us to be prepared for such an event as a national 
priority.
    In the labor and delivery unit where I work, I estimate 
that 25 percent of my co-workers have been disabled by back or 
shoulder injuries. I, myself suffer from a shoulder and elbow 
injury, which would prevent me from ever going back into the 
medical surgical units to lift anybody bigger than a newborn.
    As a charge nurse on my unit, I assign our nurses based on 
who can lift what, who can push what wheelchairs. It troubles 
me mostly that I know that those co-workers that are presently 
lifting might likely become the workers who will not be able to 
lift tomorrow and it's only a matter of equipment--upfront 
investment in the equipment. There is no equipment in our 
hospital.
    The challenge is even greater for the rest of the hospital 
because we do have an aging nursing population and we are also 
facing an ever-increasing obesity in our patients. Just last 
week, on our 16-bed intensive care unit, we had four patients 
that were between 300 and 400 pounds. Americans are getting 
bigger and bigger.
    A female employee, a worker in the hospital is required to 
lift 40 pounds but what is half of a 300 or 400 pound patient? 
And if you could get a couple of more workers and four of you 
lift, it's still an impossible and very dangerous task.
    Armed by what I and my coworkers were experiencing, I 
started to work with my union to learn about back injuries and 
how to prevent them. We also learned that there are dozens of 
studies that show that safe patient handling programs that use 
mechanical lifting and transfer devices can dramatically cut 
these injuries. Yet despite this overwhelming evidence, 
according to OSHA, only 10 to 20 percent of nursing homes or 
fewer than 5 percent of hospitals have such equipment in place.
    To fill the void of OSHA inaction, last year our union 
worked collaboratively with our State legislators and the State 
of Washington Hospital Association and I come here today proud 
to tell you that the State of Washington now has the most 
comprehensive law to protect patients, to protect nurses and 
other caregivers by establishing standards for safe patient 
handling.
    The impact of the Washington State Safe Patient Handling 
Act will be No. 1, it is going to stem the accidents of 
experienced nurses from the bedside that is so critically 
needed. No. 2, it will help attract new nurses to our 
profession. No. 3, we will be able to improve the quality of 
patient care. No. 4, we will reduce injuries and No. 5, we will 
reduce workers' compensation premiums and ultimately save 
employers and taxpayers millions of dollars, just by this 
simple act of upfront investing in lifting equipment.
    Six other States have already passed this Safe Patient 
Handling law and six others are considering these laws. In 
closing, I just want to share with you what we have learned. 
Enacting the Safe Lifting law demonstrates that such a standard 
is clearly feasible. It is the right thing to do for workers, 
for the industry and for patient care, whether it is safe 
lifting, workplace violence prevention, pandemic flu or other 
neglected workplace hazards, States are stepping forward, one 
at a time, due to the inactivity on the Federal level. These 
hazards affect workers nationwide and they cry out for the need 
for national standards. Is this not why OSHA was created in the 
first place? Thank you.
    [The prepared statement of Ms. Compagna follows:]
              Prepared Statement of Konnie Compagna, R.N.
     Chairwoman Murray and members of the Health, Education, Labor, and 
Pensions Subcommittee on Employment and Workplace Safety, thank you for 
this opportunity to testify.
    My name is Konnie Compagna. I am a registered nurse from Washington 
State and a member of Service Employees International Union 1199 
Northwest. I work as a labor and delivery nurse at a 250-bed hospital 
10 miles south of Seattle. I have been a nurse for 38 years. My union 
represents 21,000 hospital workers in Washington State and 1.8 million 
members nationwide.
                   government's safety net is broken
    I am here to tell you what my co-workers and I want you to know. 
Our government's safety net to protect workers from health and safety 
hazards is broken. We lack the enforcement and the standards to deal 
with the number of workplaces and the variety of hazards that face 
today's workforce.
    You already know that it would take more than 130 years for OSHA to 
inspect each workplace even just once. However, did you know that while 
the majority of workers, as well as on-the-job injuries and illnesses 
occur in the service sector, that OSHA continues to operate in an 
industrial mindset--still conducting four out of five of their 
inspections in manufacturing and construction?
    Yet in the past decade, hospital workers have eclipsed the injury 
and illness rates of workers in mining, manufacturing or even 
construction. The rates for nursing home workers are substantially 
higher. And is where 1 in 10 workers work today.
    In the rare occasion when OSHA does inspect a hospital or other 
service sector workplace, the agency is poorly equipped to address the 
leading hazards that are causing the majority of the injuries and 
illnesses due to a dearth of relevant health and safety standards.
    There are no standards, for instance, to stem the tide of neck, 
back and shoulder injuries caused by the manual lifting and 
transferring of patients. Yet this problem is so severe that 12 percent 
of nurses nationwide leave the bedside due to these preventable 
injuries.
    There are no standards to prevent workers from being assaulted on-
the-job, even though workers suffer nearly half of all nonfatal 
workplace assaults that occur across industry sectors.
    And there are no standards to protect workers from tuberculosis, 
SARS, weapons of mass destruction, pandemic flu, or other airborne 
biological agents, yet we have been told by the government officials 
that preparation for such events is a national priority.
    Even when OSHA issues voluntary guidelines they can't seem to get 
it right. Draft ergonomics guidelines for nursing home workers were 
substantially weakened at the behest of the nursing home industry. The 
final product was significantly inferior to much more comprehensive 
guidelines issued by the U.S. Veterans Administration years earlier. 
The issuance of other promised ergonomics guidelines for hospitals and 
other industry sectors are years behind schedule or perhaps have 
stopped altogether.
    Finally, with the relatively small budget available to OSHA, where 
it would take more than 130 years to inspect each workplace just once, 
we question spending half of a regulatory agency's budget on alliances, 
partnerships and other employer assistance efforts. The GAO concluded 
that these programs, designed to make a very small percentage of the 
best employers better, in fact had no quantifiable benefits. Meanwhile 
millions of workers who work for the worst employers go largely 
unprotected.
    I am sure you will agree with me based on these examples, that OSHA 
has clearly lost sight of its mission as envisioned in the first 22 
words of the OSH Act: ``To assure safe and healthful working conditions 
for working men and women by authorizing enforcement of the standards 
developed under the Act.''
                    too many back injuries to count
    On my labor and delivery unit, I estimate that 40 percent of the 
nurses have had debilitating back and shoulder injuries, usually 
ruptured discs and rotator cuff injuries. After more than 30 years of 
lifting patients in ICUs and other units, I suffer from shoulder and 
elbow injuries which prevent me from working almost anywhere else in 
the hospital.
    I serve as the charge nurse for my unit, and every night I have to 
make patient assignments to the nurses and nurse aides based on who can 
still lift patients or push wheelchairs. But I know that the nurses and 
aides who can lift and push today are the nurses who will be injured 
tomorrow.
    The challenges are even greater in the rest of the hospital. Aging 
nurses are facing increasingly obese patients. Just last week on our 
16-bed intensive care unit, we had 4 patients who weighed between 300 
and 400 pounds. Every nurse on the night shift ended up submitting back 
injury reports as they struggled to reposition these sedated patients 
every 2 hours as required to prevent bed sores and dangerous skin 
tears.
           the back injury epidemic among health care workers
    I have worked with my union to learn more about back injuries and 
how to prevent them. Researchers tell us that the average nurse lifts 
and transfers 1.8 tons each 8-hour shift and that the problem is only 
getting worse as the average age of a nurse has increased to 47 years 
old and that patients are getting heavier, with more than two-thirds of 
patients now considered overweight.
    Nurse aides suffer the highest number and rates of back injuries as 
a percent of their overall injuries of any occupation and that the 
rates and numbers of injuries for registered nurses follow close 
behind.
    Nationwide, we are experiencing a shortage of hundreds of thousands 
of nurses, as many former nurses are not willing or not able to work in 
hospitals. I know that excessive manual lifting and transferring of 
patients is a major reason they are no longer at the bedside.
                    lifting injuries are preventable
    Yet we also know that safe patient handling programs that use 
mechanical lifting and transfer devices can dramatically cut these 
injuries. The overwhelming evidence is reflected in dozens of peer-
reviewed scientific studies which document dramatic drops in injuries 
with the introduction of safe patient handling programs.
    These studies show that patient care is improved, as the dropping 
of patients is reduced, patients incur fewer serious skin tears, and 
patients report feeling more comfortable and secure.
    Safe patient lifting equipment literally pays for itself. For 
example, OSHA found one nursing home spent $60,000 on mechanical 
lifting and transfer devices. A year later this facility reported a 
savings in medical and workers compensation costs of $600,000; a 
savings of $10 for every dollar invested.
    And when you consider that 60 percent of all dollars come from tax 
dollars, you can also see how such programs can also save taxpayer 
dollars.
    Kaiser Permanente, a employer with 150,000 workers, came to my 
union in 2000 seeking help in reducing their skyrocketing workers 
compensation costs. As they are self insured, every dollar they spend 
compensating workers injured on the job comes directly out of their 
bottom line.
    Our union suggested that they first review their OSHA injury and 
illness logs. The vast majority of their reported injuries were neck, 
back and shoulder injuries--far and away the leading cause of these 
injuries was the manual lifting and transferring of patients. Based on 
these findings, we entered into a partnership with Kaiser to implement 
safe patient lifting programs in all of their hospitals.
    As a 2006 Wall Street Journal article reported, one Kaiser hospital 
in Oregon ``bought 14 portable mechanical lifts, trained 700 nurses and 
assistants to use them and ordered that no one raise, move, or lower a 
patient without the help of these motorized devices that work with a 
boom and sling. In 2 years, [this hospital] cut worker-injury rates by 
29%.''
    Recently Kaiser announced that their injuries caused by patient 
lifting and handling have dropped 29 percent among all of their Oregon 
hospitals, 38 percent among their 18 northern California hospitals and 
an impressive 56 percent among their 11 southern California hospitals.
    Yet despite this overwhelming evidence, according to the Federal 
National Institute of Occupational Safety and Health ``only 10 percent 
to 20 percent of nursing homes and fewer than 5 percent of hospitals 
have [safe patient] lift programs.''
                         my union takes action
    In 2006, working with my local union, we decided to try to fill the 
vacuum left by inaction by the Federal Government. I wanted to do what 
I could to reduce the likelihood that other nurses would incur a 
disabling back, neck and/or shoulder injury.
    We met and worked with receptive legislators in the Washington 
State legislature. I am proud to report that Washington State now has 
the most comprehensive law in the country to protect patients, nurses 
and other caregivers by establishing standards for safe patient 
handling.
    The Washington State law, which was also supported by the 
Washington State Hospital Association, requires that workers be trained 
and that patient lifting devices be available in every unit of every 
hospital to lift and transfer patients. In addition, a tax credit of 
$1,000 per bed was allocated to hospitals to purchase lifting 
equipment.
    The impact of the Washington State Safe Patient Handling Act will 
be to:

    1. Help stem the exodus of experienced nurses from the bedside,
    2. Help attract new nurses to the profession,
    3. Improve the quality of patient care,
    4. Reduce worker injuries,
    5. Reduce workers compensation premiums, and
    6. Save employers and taxpayers millions of dollars each year.

    Right now my hospital has a lift team, but it is not in service on 
evenings, nights or weekends. Full implementation of our new law cannot 
happen soon enough. My hospital will soon have a comprehensive safe 
patient handling program to help take the strain off us.
    In addition to my State of Washington, safe patient handling laws 
have already passed in Maryland, New York, Ohio, Rhode Island and 
Texas. Bills are currently under consideration in California, Florida, 
Hawaii, Illinois, Massachusetts, Minnesota, Nevada and New Jersey.
                         summary and conclusion
    In the case of safe patient handling standards, we learned in my 
State that they are clearly feasible and the right thing to do for 
workers, the industry and for improved patient care. This epidemic of 
back injuries caused by manual patient handling is exacerbating our 
nurse shortage and costing employers and taxpayers.
    However, the most important message I have learned from my 
experience and from speaking to nurses and other workers across the 
country is that this hazard--and many other hazards that workers face 
in the fastest growing sectors of the economy--are hazards that are not 
unique to Washington State or any other single State.
    Whether it is safe patient handling, workplace violence prevention, 
airborne biological agents such as pandemic flu, or a host of other 
neglected workplace hazards, States are stepping forward one at a time 
due to inaction at the Federal level. However, these hazards cry out 
for national standards. Let us remember, this is why OSHA was created 
in the first place.
    Unfortunately, the Federal Government is essentially ``asleep at 
the wheel'' when it comes to conducting inspections in the fastest 
growing sectors of the economy, and has failed to issue meaningful 
standards that impact the majority of our Nations' workers. The few 
resources the agency does possess are squandered disproportionately on 
assisting the top \1/2\ of 1 percent of employers with unproven 
cooperative programs, instead of committing more resources toward going 
after the worst.
    I call upon this committee to push the Federal Government to expand 
standard setting and enforcement to protect workers in the largely 
neglected fastest growing sectors of the economy where the highest 
numbers of workers are suffering injuries and illnesses. We also urge 
you to evaluate and re-orient OSHA priorities to get the most done with 
their very limited budget.
    Thank you for this opportunity. I would be glad to respond to your 
comments or questions.

    Senator Murray. Thank you very much.
    Mr. Cecich.

   STATEMENT OF THOMAS CECICH, CIH, CSP, PRESIDENT, TFC AND 
                ASSOCIATES, APEX, NORTH CAROLINA

    Mr. Cecich. Thank you, Senator Murray, Senator Isakson. I 
have been a practicing safety professional for 35 years and 
today, I speak as a volunteer member of the American Society of 
Safety Engineers. ASSE represents more than 30,000 safety, 
health and environmental professionals. We highly commend the 
subcommittee for taking this opportunity to look critically at 
OSHA's value to this Nation's workers.
    Safety professionals have long understood that no single 
approach can make a workplace safer and healthier. To do our 
jobs, we work with management to ensure adequate leadership and 
resources are available for safety. We develop training 
programs to educate workers and management. We help management 
set workplace standards and support management to follow 
through with firm, consistent enforcements. Organizations that 
achieve leading safety performance use all of these approaches.
    From this professional perspective, most safety 
professionals feel that OSHA--for OSHA to achieve its mission, 
OSHA must use a broad array of tools. Consultative services, 
alliances, cooperative programs, training and education 
resources, standard setting and enforcement are all tools that 
OSHA should be using to do its job.
    With about 2,300 employees to serve more than 7 million 
businesses, OSHA has to leverage its limited resources to reach 
wide audiences. Cooperative programs help it to do that. OSHA's 
alliances and partnerships, we believe, have helped the agency 
become a more open organization that does a better job of 
reaching out to its stakeholders. ASSE's alliance with OSHA has 
resulted in increased involvement of OSHA staff in the safety 
and health of the professional community.
    Within industry specific groups, OSHA has been able to 
create quality guidance documents, best practices and a broad 
array of web-based resources. ASSE members have worked on e-
tools, working groups like Design for Safety and Spanish-
speaking workplace issues. OSHA has worked with ASSE to expand 
the North American Occupational Safety and Health Week, helping 
employers and schools bring attention to workplace safety. This 
year, NAOSH Week begins next week, May 6th.
    ASSE has many members who work for companies that 
participate in OSHA's Voluntary Protection Program, VPP. VPP 
recognizes excellent safety and health management achieved 
through a cooperative approach through labor, management and 
government. VPP companies have reduced their workplace rates to 
below 50 percent of the national average, protect workers and 
provide bottom line benefits to companies. Achieving VPP status 
requires the investment of significant time and financial 
resources. While VPP detractors view the program inspection 
exemption as too great a benefit, our view is that VPP 
companies get far more OSHA scrutiny during the long, detailed 
VPP approval process than could ever occur during program 
inspections. The offer of a small incentive to encourage 
superior safety and health performance is a positive 
investment.
    OSHA's Safety and Health Achievement Recognition Program, 
SHARP, gives small employers incentives and support to 
implement safety and health programs. Participants lack in-
house safety expertise and find it too difficult to comply with 
the complexity of OSHA regulations. SHARP participants receive 
OSHA-sponsored site inspections and agree to correct safety and 
health hazards. The program offers an opportunity to 
voluntarily identify and correct workplace hazards, a win-win 
for OSHA and small business.
    While ASSE supports OSHA's cooperative efforts, our support 
does not take away from ASSE's views that OSHA must be given 
the resources necessary to fulfill its enforcement 
responsibilities. As safety health professionals, we must note 
that OSHA's standard setting process is broken and needs to be 
fixed. The U.S. workplace is rapidly changing with new 
technologies, a changing workforce and globalization. The OSH 
Act limitations, congressional and executive branch actions, 
OSHA's resource constraints and a litany of court challenges 
have resulted in an inability of OSHA to update all regulations 
and develop new standards in a timely way to fully protect the 
U.S. workforce.
    In conclusion, is OSHA working for working people? ASSE 
would say, ``yes.'' Is there room for improvement? ASSE would 
say, ``yes, definitely.'' Organizations that achieve world-
class status in protecting workers always challenge themselves 
to get better. OSHA has succeeded in bringing national focus to 
workplace safety, has improved millions of workers lives but 
ASSE hopes that Congress can provide OSHA with the guidance and 
support it needs to meet the current and future needs of this 
Nation's workforce. Thank you for consideration of ASSE's 
position.
    [The prepared statement of Mr. Cecich follows:]
   Prepared Statement of Thomas F. Cecich, on behalf of the American 
                   Society of Safety Engineers (ASSE)
    Chairwoman Murray and members of the committee, my name is Thomas 
F. Cecich. I have been a practicing safety professional for over 35 
years and am a retired vice president of the pharmaceutical company 
GlaxoSmithKline where I had responsibility for Environment, Health and 
Safety Global Business Support. I am a Certified Safety Professional 
and Certified Industrial Hygienist who is currently a safety and health 
management consultant. I speak today on behalf of the American Society 
of Safety Engineers (ASSE), which I serve as Chair of its Government 
Affairs Committee. ASSE represents more than 30,000 safety, health and 
environmental (SH&E) professionals dedicated to seeing that every 
worker has the best possible opportunity to go home healthy and safe 
each day from their jobs. Founded in 1911, the Society is the largest 
and oldest safety organization. Our 13 practice specialty areas include 
construction, transportation, manufacturing, and health care, and our 
members include in-house safety professionals, representatives of 
labor, academia, and the public sector.
    We highly commend the subcommittee for taking this opportunity 
today to look critically at occupational safety and health issues. We 
hope that this inquiry can lead to legislative initiatives that proceed 
in a bipartisan manner and help cement what should be a meaningful 
partnership between the Occupational Safety and Health Administration 
(OSHA), labor, management and SH&E professionals like our members. Such 
cooperative efforts can work to bring down the number of deaths, 
injuries and illnesses among this Nation's working people.
    From the viewpoint of an SH&E professional, achieving safe and 
healthy workplaces requires the involvement at all levels of an 
organization from senior leadership, middle management, line 
supervision, workers and contractors. Everyone in an organization has 
an appropriate role in minimizing risks in safe workplaces. Likewise, 
safety professionals have long understood that there is no single 
safety program element that will always work to achieve that goal. 
Safety professionals work with management to ensure adequate leadership 
and resources are provided to identify and reduce workplace risks. 
Safety professionals work to build relationships with all 
organizational stakeholders--management, workers, staff professionals, 
and contractors--to encourage safe work practices and behaviors.
    Safety professionals also develop and present training programs to 
educate workers and management about workplace risks and necessary 
corrective actions. Safety professionals help management set meaningful 
and firm workplace safety and health standards that are designed to 
eliminate or minimize the threat of workplace injuries and illnesses. 
Finally, safety professionals support management in assessing 
compliance with established safety rules and ensure that firm 
enforcement and consistent penalties are applied. In short, safety 
professional have long understood that there is not one effective 
approach to achieving workplace safety. The organizations that have 
consistently achieved leading safety performance have utilized all the 
above approaches as workplace conditions dictate.
    From this perspective, most safety professionals feel that, for 
OSHA to achieve its congressional mandate of eliminating occupational 
injuries and illnesses, it is essential that OSHA utilize a similar 
broad array of tools in order to reach all types of organizations. 
Consultative services, alliances, cooperative programs, training and 
education, standards setting and enforcement are all tools that OSHA 
must utilize. With more than 3,000 employees to serve approximately 6 
million businesses, it is vital that OSHA leverage all its resources to 
obtain the maximum benefit. While it is true that OSHA is and will 
always be a regulatory enforcement agency, practicing safety 
professionals have found that enforcement alone is not sufficient in 
eliminating workplace injuries and illnesses in this country. As safety 
professionals, we recognize that the other organizations testifying 
today will focus on standards setting and enforcement. We believe it is 
also important to highlight the value we see in the alliance and 
cooperative programs that OSHA has developed.
                               alliances
    Through a broad network of alliances and partnerships, ASSE 
believes that OSHA has become a more open organization that does a 
better job at reaching out to its stakeholders and the safety and 
health community. If a history of OSHA on this matter were ever 
written, we believe it would state that this Administration found in 
John Henshaw a highly capable and experienced SH&E professional to lead 
OSHA. Mr. Henshaw, like SH&E professionals do every day in their jobs, 
saw the resources given him, the tasks at hand and the resource 
limitations and decided to leverage those resources to build a new way 
of trying to advance OSHA's mandate. We are pleased that Assistant 
Secretary Foulke has continued to advance OSHA's commitment to this 
approach.
    ASSE itself is proud to have joined in one of the first Alliances 
with OSHA that we believe has established a much more positive 
cooperative relationship between OSHA and our members. The Alliance has 
resulted in better opportunities for OSHA staff to be involved in the 
safety and health professional community. For our members, the Alliance 
has created a much more positive understanding of the wide-ranging 
capabilities OSHA has in helping them achieve workplace safety, and a 
much better appreciation for the challenge OSHA has in carrying out its 
enforcement responsibilities. Our experience suggests that the Alliance 
has resulted in a much more positive view of OSHA's role and has 
mitigated the old us-against-them attitude within the safety and health 
community.
    With industry-specific groups, OSHA has been able to create quality 
deliverable guidance documents, best practices, and a broad array of 
web-based informational resources. Our members have participated in 
various editorial boards for e-tools and other resources offered by 
OSHA. We have members who have helped lead OSHA work groups on issues 
like design for safety and small business safety. OSHA staff regularly 
meets with ASSE's members interested in Spanish-speaking workplace 
safety issues.
    OSHA, through its alliance staff, has helped promote and expand 
North American Occupational Safety and Health (NAOSH) Week to more than 
30 meaningful events in more than 25 States that help employers and 
even schools bring attention to workplace safety, unlike any other 
event in the United States, Canada and Mexico. This year, NAOSH week 
begins on May 6, and we invite the subcommittee members to join with 
ASSE and OSHA in helping promote workplace safety through this event.
    In addition to its national alliance, ASSE chapters have formed 
their own alliances with OSHA in four regional offices. For example, 
the OSHA Region IV Office formed an Alliance with ASSE's chapter in 
Mobile, Alabama, to promote safe and healthy work habits to technical 
school students. The Alliance members share information, guidance and 
access to training resources to help educate young workers in hazard 
recognition before they leave school and prior to taking their places 
in the U.S. workforce.
    We view the Alliance as a success, and our intent is to continue to 
work with OSHA to respond to safety and health workplace issues as they 
develop in the millions of workplaces across this country.
                       other cooperative programs
    OSHA's other cooperative activities have likewise helped OSHA 
become a more multifaceted participant in safety and health.
    OSHA's Voluntary Protection Program (VPP) initiative was 
established in 1982, was restructured in 1996 and is still effective. 
Over the years, ASSE has submitted comments to the agency to enhance 
and expand VPP and is pleased to see that the agency has launched a VPP 
program for the construction sector as well as making inroads into 
encouraging smaller business involvement. Many ASSE members are safety 
professionals at companies that are VPP participants. At VPP ``Star'' 
worksites, data indicate that lost workday rates are 53 percent below 
national averages.
    VPP emphasizes the importance of worksite safety and health 
programs in meeting the goals of the OSH Act, and provides official 
recognition of excellent employer safety and health management through 
a cooperative approach among labor, management, and government. Sites 
are approved based on their written safety and health program and their 
overall performance in meeting the standards set by the program. VPP is 
valuable in providing recognition and incentives for companies that are 
doing the right things, such as voluntarily implementing proactive, 
state-of-the-art safety and health management programs that are 
demonstrably effective. VPP participation has been demonstrated to 
reduce the incidence and severity of workplace injuries and illnesses, 
thus protecting workers while also providing financial benefits to the 
companies that go beyond mere compliance with OSHA standards.
    Companies that commit to achieving VPP status seek to be recognized 
for their leadership in protecting workers. Achieving VPP status also 
requires significant time and financial resources. Some detractors of 
the VPP program point to the programmed inspection exemption as too 
great a benefit for companies to receive for complying with the law. 
The truth is that VPP companies routinely exceed regulatory 
requirements and voluntarily receive far more OSHA scrutiny during the 
long and detailed VPP approval processes than can ever occur through 
programmed inspections. Further, companies can still be inspected and 
cited if conditions trigger employee complaints or they suffer a 
catastrophic event. Companies can also lose VPP status if they let 
their standards slip.
    Although VPP is site-specific, ASSE was pleased to see OSHA 
recently roll out its pilot ``VPP Corporate'' program, which allows 
corporations committed to VPP and interested in achieving VPP 
recognition at facilities throughout their multisite organization with 
a more efficient means to accomplish this goal. ASSE has long advocated 
a philosophy of corporate responsibility for occupational safety and 
health and this approach may help raise the profile of SH&E activities 
to the highest levels. Some of the VPP Corporate participants are 
broadly recognized as some of the safest companies in America.
    The ASSE strongly submits that programs like VPP that offer small 
incentives to encourage superior safety and health performance are good 
investments for both companies and taxpayers in that they allow OSHA to 
utilize its limited enforcement resources to target bad actors and 
those organizations that fail to safeguard their workers.
                             sharp program
    OSHA's Safety and Health Achievement Recognition Program (SHARP) 
provides incentives and support to develop, implement and improve 
effective safety and health programs for smaller companies. 
Participating employers may be exempted from OSHA programmed 
inspections for a period of 2 years, and SHARP renewal exemptions will 
be for a period of up to 3 years. All consultation and visits are 
conducted at employer request.
    Typical SHARP participants are smaller high-hazard businesses, 
generally with fewer than 250 employees. Participants undergo a 
comprehensive site visit and agree to correct all identified safety and 
health hazards, which is the preventative, functional equivalent of an 
OSHA wall-to-wall inspection except that civil penalties are not 
imposed.
    Everyone agrees that OSHA does not have the personnel to regularly 
inspect every worksite under its jurisdiction--most companies will 
never experience an OSHA inspection unless they have a serious incident 
or have employees who report problems to the agency. The SHARP program 
is a sound method of helping this largely uninspected sector understand 
what is needed for compliance, and providing them with qualified 
assistance in making improvements to their physical conditions and 
safety/health programmatic infrastructure proactively, before an injury 
or illness triggers an initial contact with OSHA.
    SHARP participants report a successful return on investment when 
implementing the recommendations made by the consultants. One SHARP 
program participant indicated to OSHA that it reduced its lost workday 
incidence rate from 28.5 to 8.3 and reduced insurance claims from 
$50,000 to $4,000 through decreases in both direct and indirect losses 
through a reduction in its number of back and shoulder injuries. This 
is consistent with other research on the value of safety.
                             a strong osha
    While ASSE fully supports the cooperative efforts of OSHA as a 
meaningful addition to the tools OSHA is able to use to help advance 
safety and health of workers, that support does not take away from 
ASSE's view that OSHA must be given all the resources necessary to 
fulfill its enforcement responsibilities given to it by Congress. 
Unlike some other stakeholders, we do not view this situation as 
either/or in nature. An increased commitment to standard-setting and 
increased enforcement capacity must also be supported by increased 
funding for OSHA by Congress, even when an Administration does not 
support such increases. As a Nation, our commitment to workplace safety 
should be such that OSHA can do the necessary relationship-building, 
resource development and information outreach necessary to build 
awareness and commitment to workplace safety and health among 
employers, workers and the public and do more in standards development 
and enforcement.
     As safety and health professionals, we are compelled to note that 
the safety and health standards-setting process is broken and needs to 
be fixed. The workplace of the 21st Century is rapidly changing due to 
new technologies, a changing workforce, and globalization. Limitations 
in the original act, subsequent congressional and executive branch 
actions, resource constraints at OSHA and a litany of private court 
challenges have resulted in an inability of OSHA to update old 
regulations and to develop new standards in a timely manner to protect 
the U.S. workforce. We encourage Congress to engage in stakeholder 
dialogue to improve its standard-setting process to protect workers 
while preserving the productivity of American business.
    ASSE is aware that legislation is being introduced this month that 
will address such areas as increased civil and criminal penalties, 
enhancement of whistleblower protections, and coverage of State and 
local public sector workers. We applaud Congress for moving these 
issues forward and will carefully review all new legislation in light 
of our commitment to a strong, effective OSHA. We look forward to 
offering our members' perspective.
                               conclusion
    Is OSHA working for working people? Yes. Is there opportunity for 
improvement? Yes. The OSH Act has changed little in 36 years. During 
that time, huge changes and many advances have occurred in U.S. 
workplaces and our workforce. OSHA has evolved during that period to 
reach as many stakeholders as possible. In organizations that achieve 
world-class status in managing safety and protecting workers, a 
characteristic that continuously stands out is that these organizations 
are always challenging themselves to get better. Since its beginning, 
OSHA has succeeded in bringing a national focus to workplace safety and 
positively impacted the lives of millions of workers. However, like 
world-class organizations, OSHA must seek continuously to improve its 
safety and health processes. ASSE hopes that Congress can provide OSHA 
with the guidance and support OSHA needs to continuously reinvent 
itself to meet the needs of this Nation's workforce. Today's hearing is 
an important part of that continuous improvement process.
    Thank you for your consideration of ASSE's position on these 
significant issues. I will be pleased to respond to any questions you 
may have at this time as well as provide any additional information 
that you may request for the record.

    Senator Murray. Thank you very much to all of you for your 
testimony. I am going to turn to Senator Isakson first for his 
questions as he has another engagement and needs to leave.
    Senator Isakson. And I apologize and I thank the Chairman 
immensely for letting me go first and I apologize that I'm 
going to get up and leave after my questions. Please don't take 
it as an offense but I have another responsibility I have to 
take care of.
    Mr. Cecich, I want to associate myself with the last 
paragraph of your remarks, which I think is reflective of 
precisely how I feel and that is that OSHA has done many good 
things and there are many good things it still can do and there 
is room for improvement and I think all of us agree with that. 
The mechanism is how you get there.
    To that end, Dr. Michaels, I am told you have written--now, 
I didn't read this so if you didn't write this, you tell me I 
was misinformed and I'll talk to that person later.
    [Laughter]
    Senator Isakson. Uncertainty, you write, should not be an 
excuse for inaction. Is that a correct statement?
    Mr. Michaels. Correct. Close enough. I don't know if I've 
written exactly that but----
    Senator Isakson. This is going to sound like a loaded 
question but don't over react. Should uncertainty then require 
absolute regulation?
    Mr. Michaels. No, I mean, obviously I think--probably what 
I've written is really in some ways, you flip it over. 
Certainty shouldn't be a requirement for regulation. For 
example, the artificial butter flavor. We have tons of studies 
of people exposed to artificial butter flavor who've gotten 
sick. We have animal studies that show they've gotten sick but 
we've no one in the country who has been exposed only to that 
one chemical, diacetyl.
    So we can't know for absolutely sure that that chemical 
causes illness. On the other hand, if we're going to wait to do 
that study, which we can't do, we're not going to do anything. 
So that's why I think you have to think about uncertainty and 
see whether the implications of not addressing the problem, 
given the uncertainty.
    Senator Isakson. Well, that's--I don't disagree at all. I 
think that's a great answer because a lot of times when we get 
in hearings like this, it's one of these pendulum deals where 
the pendulum goes too far the other way based on momentum 
rather than actual fact and a lot of times when you have a 
situation like that--and I was totally unaware of the microwave 
popcorn butter disaster that was going but when four people die 
and where there is an association with a common product but 
there is no definitive answer, that doesn't mean you do nothing 
but it also doesn't mean you might go too far either and so 
that was the only point I wanted to make. Both of the ladies 
and Ms. Compagna, my daughter informed me last night, she was 
dilated to 3 centimeters so I'm so excited I don't know what to 
do. I've got another grandchild on the way but both of you 
referred to pandemic flu and it's an open question to both of 
you. Is that a responsibility of OSHA?
    Ms. Seminario. Yes, when it comes to protecting the workers 
and responders who will be affected. They certainly have a 
major responsibility there. There are a lot of other aspects of 
pandemic flu that other parts of the government have 
responsibilities for and they are dealing with.
    The problem that we have with OSHA is that they are 
refusing to move aggressively to put in place the measures in 
facilities that will, indeed, be in place before a pandemic, to 
protect workers in the event of a pandemic. And we think this 
is critical. I've been doing safety and health work for 30 
years, dealing with lots of hazards. I can tell you that 
personally, I am more concerned and really terrified about this 
potential--for a flu pandemic and the risks that the workers 
and responders face because we are totally unprepared and OSHA 
is refusing to use its authority to step forward, to put in 
place the measures, the infectious control programs, the 
respirator programs, the training programs--put them in place 
now because once a pandemic occurs, it's going to be too late.
    Senator Isakson. Well, the reason I asked that question is 
that I know how much we are investing and have been in the last 
few years, both in trying to be ready for the pandemic when it 
comes and the agencies that are already involved in it, like 
for example, CDC, which happens to be in my home State of 
Georgia, that is investing hundreds of millions of dollars on 
working on a lot of this. I didn't--when you referred to OSHA 
and pandemic, it kind of came out of right field for me because 
I've thought about so much stuff we were doing with CDC.
    Ms. Compagna. Yeah, there is no plan at our hospital for 
that.
    Senator Isakson. The hospital has no plan whatsoever?
    Ms. Seminario. No.
    Senator Isakson. OK. And one other question, Ms. Seminario. 
You said in referring to ergonomics that there had been no--I 
think you said this--that there had been no standard put out by 
OSHA and then you said there had been only one significant 
standard. Was that regarding something else or was that 
regarding ergonomics?
    Ms. Seminario. No, on ergonomics, there is no standard. 
There was a standard. It was repealed in 2001 by the Congress. 
The only standard that the Bush administration has put out on a 
major safety and health hazard is a standard on hex--chromium, 
a carcinogen and they were ordered to do so by the court. In 
the last 6 years, there had been no other major significant 
rules issued by this Administration.
    Senator Isakson. Last, on the non-American workers, the 
foreign workers. You state that their injury rate is so much 
higher. Is that related to them not being able to speak English 
in some cases?
    Ms. Seminario. I think there is a lot of different reasons. 
I think one of the reasons is that when you look at where these 
workers are working, they are working in very dangerous 
industries and very dangerous jobs and so they face a lot of 
hazards and then there are a whole set of issues with respect 
to language problems, cultural issues but also just plain 
exploitation. They are working for employers who believe they 
can exploit them and don't put the protections in place. And 
this is an area that really just needs a lot more focus, a lot 
more attention to get a better handle on it, a better 
understanding of what's really going on and what needs to be 
done.
    Senator Isakson. I want to thank the Chairman for letting 
me go and apologize that I'm going to have leave and thank all 
of our witnesses for taking their time to share with us today.
    [Chorus of thank you.]
    Senator Murray. Thank you very much, Senator Isakson. I 
look forward to working with you on this. Since OSHA was 
enacted 37 years ago, on average 16 people have died every day, 
and in the past 6 years, one new rule has been put in place and 
that was because of a court order. We know there are failures. 
You talked about pandemic flu and just the ability to protect 
our hospital workers who we are all going to rely on in a 
pandemic flu situation. What do they have in place protecting 
them? We know the marketplace has changed. We know there are 
new chemicals out there. I would like to ask Ms. Seminario and 
Mr. Cecich if you could just briefly give us what you think the 
priorities for OSHA ought to be as we move forward. Mr. Cecich, 
I'll start with you.
    Mr. Cecich. Well, as we reflected, I don't know that we can 
say there is an individual priority. There certainly needs to 
be improvement in the standard setting process. It seems that 
that needs to be a direct area with new technologies, nano-
technologies that need to be explored, the Global Harmonization 
System, GHS, for the classification and labeling of hazardous 
substances in the workplace.
    Those are new technology, globalization type issues that 
need to be addressed. There are old issues, such as permissible 
exposure limits that have existed for 35 years that need to be 
addressed and updated. So certainly rulemaking is an important 
consideration. But we also think programs like--Voluntary 
Protection Program, which has expanded literally exponentially 
in the last 5 years--the number of companies that are coming 
forth willingly, saying we want to be the best at managing 
safety and health and reducing their workplace injuries by 50 
percent.
    We think those are the types of programs that OSHA should 
be encouraging and indeed, they are, to encourage companies to 
step forward and not only do these companies demonstrate their 
own value to themselves, they are passionate about safety and 
spreading that message to their peer companies and industry and 
going to meetings and sharing with other companies the value 
that safety brings to their organization.
    So we think that's a parallel track that also is very 
important for OSHA to continue to cultivate.
    Senator Murray. Ms. Seminario.
    Ms. Seminario. I think the priorities for OSHA need to be 
focusing on the major hazards that are killing workers, 
injuring them and making them sick. I mean, that is its job and 
when you look at that, what you see is basically the biggest 
source of job injuries--ergonomic hazards, 30 percent of 
injuries. They should really be making that a higher priority. 
We think a new standard needs to be set. Toxic chemical 
exposures. We have very few chemicals that are regulated. The 
permissible exposure limits are out of date. I think there is 
agreement among many in the professional groups, unions and the 
bigger employers about what needs to be done. I think we could 
get together and do something on that, updating those limits.
    The area of pandemic flu that I mentioned, as far as a 
potential threat that is looming that could have bigger 
devastation than anything we have seen. This is something we 
all need to be focusing on now and make sure the protections 
are in place. And one thing that I would also say is that I 
think we have to look at building a foundation in safety and 
health so we're not dealing with things one at a time--one 
hazard, one chemical. One of the biggest disappointments for me 
is under the Bush administration that OSHA abandoned putting in 
place a safety and health program rule, a basic requirement 
that employers identify hazards and correct them, involve 
workers in the process, train their workers. Many States 
already have this requirement.
    It was a high priority for John Henshaw, the first 
Assistant Secretary under President Bush but unfortunately, in 
the anti-regulatory attitudes in the Administration, he was 
forced to abandon it. So coming back to that particular rule, I 
think would be very, very important.
    Senator Murray. OK. We go back--and voluntary, I understand 
that. It sounds really good. I worry though if we don't have 
some rules and regulations, particularly for chemicals and 
workplace hazards that there are those who, because of time, 
costs, money and everything else, will just simply ignore them. 
There is another aspect to a rule and that's enforcement and 
consequences for people who don't follow the rules. In 
Washington State, researchers have shown that enforcement 
actually reduces injury rates in small companies. I wanted to 
ask the panel if anybody had any experience with enforcement as 
the motivator to get companies to do the right thing. Mr. 
Cecich?
    Mr. Cecich. Enforcement, at least--and I can only share my 
experience and I've been called the Safety Cop in companies 
I've worked for. Enforcement is a motivator but only, I think, 
at the lower end of motivation. People want to--don't want to 
be hurt. They want to feel good about safety and themselves and 
safety is about behavior and it is very difficult to enforce 
behavior. Standards are important to set workplace conditions, 
to remove hazards.
    Those are all critical elements and if employers don't do 
those voluntarily, then enforcement is responsible for making 
that happen. But indeed, it is only one portion of the puzzle, 
if you will, of how to prevent injuries and illnesses. There is 
a strong behavioral component that it is very difficult to 
regulate and create standards around behavior.
    Ms. Seminario. Because I think the enforcement, what it 
does is it sends the message that these are serious issues that 
have to be taken seriously and they also bring attention by 
employers to focusing on issues. And I think enforcement needs 
to be more than side-by-side, plant by plant. One of the things 
we've seen to be most effective by OSHA is when they have an 
enforcement initiative that deals over the particular hazard or 
a particular industry. For example, the Reagan and Bush 
administration--they had a major effort on ergonomics under 
their General Duty clause and they took major actions in the 
auto industry, in the meatpacking industry and what you had was 
very substantial efforts being made by those employers in 
putting in place the measures to deal with the problems.
    So they sent a message not only to a particular employer 
but to the whole industry and this Administration again, has 
gotten out of the business of dealing with things on a national 
basis and an industry basis and has gotten out of the business 
of really leveraging their resources to bring about broad 
change on a wide-scale basis.
    Ms. Compagna. And in the medical industry, we had two 
dramatic examples. One was the Safe Needle. There was an 
airplane full of workers dying every year from needle sticks 
that were happening in emergencies with getting hepatitis and 
HIV and we passed a Safe Needle Stick--you know, they have caps 
on needles as soon as the needle comes out of the patient's 
body, the cap just goes over it.
    So we had the regulation passed and the effect was, it 
didn't have to be enforced because the threat of the 
enforcement was enough and also, the wonderful thing also I 
feel about this particular industry because it's so competitive 
is that it strikes every hospital and every health care 
industry equally at the same moment in time. So someone who 
voluntarily does it is not going to be penalized because 
they've got a greater cost than another company and it just 
happened overnight, all these safe needles, all these 
manufacturing companies just came up with these wonderful ideas 
that people thought couldn't be solved.
    And also with this safe lifting equipment, the same thing. 
It will affect all hospitals simultaneously and yes, you always 
have to have the threat of enforcement but we're finding that 
the hospitals are responding just with the threat of 
enforcement. So we're really, really pleased.
    Senator Murray. You've had that legislation--I know it was 
just implemented. Have you seen any impact of that yet?
    Ms. Compagna. Not quite yet because it was established that 
it would be progressive. So we're just about to move at this 
point.
    Senator Murray. I know that took bipartisan support, both 
sides of the isle. Tell me how you did that.
    Ms. Compagna. It was initiated by the unions but we worked 
closely with our legislators and even the hospital association 
got involved also and was willing to work collaboratively with 
us. It is a win-win, win-win, win-win situation for everybody 
as is everything else because the cost of workplace injuries is 
so much more than prevention.
    Senator Murray. OK, very good. Dr. Michaels, I wanted to 
get back to you. It's really troubling to hear how many work-
related injuries and illnesses are missed in the OSHA and BLS 
recordkeeping you referred to in your testimony. The academic 
articles that you submitted will be included in the record.
    But no matter how tiresome just plain numbers are and 
everybody gets tired of hearing about them, they really are 
critical for us to be able to understand some of the problems 
and help us focus on priorities. What should we do here in 
Congress to address this problem of recordkeeping and 
underreporting of work-related injuries and illnesses?
    Mr. Michaels. Senator, I think that's a very good question. 
I would hope that this committee might have a hearing 
specifically on this. I think there are a lot of people around 
the country who have great expertise in recordkeeping and in 
reporting from both in the occupational injury world and 
elsewhere and this is the sort of question that--we could 
involve the National Academy of Sciences and some of the best 
minds in the country to address the problems and say, ``okay, 
we know there is a problem.'' It's certainly not BLS's fault. 
They've used the same system for a long time. They've attempted 
to correct certain issues or make things easier by changing 
reporting rules and I think the unforeseen consequence is 
essentially this mis-reporting.
    This is the sort of issue where we all sit down and really 
think about this or maybe even ask the National Academy of 
Sciences, which has taken on this issue before, actually in the 
seventies or eighties but there were problems with fatality 
reportings and there was a whole panel that looked at it and we 
got great improvement.
    Ms. Seminario. We did. We looked at--actually the fatality 
issue was similar. A number of years ago, OSHA and BLS were 
capturing half of the fatalities and what the recommendations 
were is that we had to look beyond the employer-only reporting 
system because if you rely only on that data, there are a lot 
of things going on in workplaces that may cause the under 
reporting of injuries and so what was done to expand it, to 
look in multiple data sources, to look at workers' compensation 
records, look at coroner's reports and look to sources that 
were independent of the employer and beyond the workplace to 
try and get a better picture of it. So I think that Dr. 
Michaels is correct that this is an issue that we really need 
to focus on, to think about seriously, to bring in other people 
and really look at what can be done and also fund some 
additional research. NIOSH has funded some of this research so 
now we've got some sense of the numbers being--the discrepancy 
in the numbers. I think we have to find out what's the cause as 
to why the injuries aren't being reported in the workplace and 
that's an area we'd like to see NIOSH do some additional work 
and funding to look at what's behind injuries not being 
recorded by employers and reported by workers.
    Senator Murray. OK. I appreciate that.
    Ms. Compagna. And employees are afraid of retaliation.
    Senator Murray. Mr. Cecich, let me go back to you. You 
talked about the Voluntary Protection Program. Is there any 
evidence-based research that shows that does reduce the rate of 
injury?
    Mr. Cecich. Yes. In terms of actual reduction of injuries, 
there is data that OSHA has posted on the Websites. I presume 
it's accurate data, that companies that participate in the VPP 
program, their disability or lost workday case incident rate is 
less than 50 percent of the average for that industry group to 
which they are in. So yes, there is, I think, pretty solid data 
to say that those are the--that the companies in that program 
have better records, better injury rates than----
    Senator Murray. So because they are voluntarily complying, 
they are keeping the records for those companies but those 
companies that aren't voluntarily complying may not be keeping 
records so we may be comparing apples and oranges when we----
    Mr. Cecich. Well, it's possible. May I correct one notion--
the word voluntary compliance is a little misleading to people 
because it implies that compliance isn't mandatory and it is. 
As safety professionals, we don't like to use the word, 
voluntary compliance, because we don't want anybody to have the 
misconception that people can choose to comply or not. That's 
not an option. We like compliance assistance and terms like 
that.
    The issue that was brought up--I think, based on the data, 
the Michigan study that I've read, I think it's a real issue. 
There probably are underreporting issues. I suspect that part 
of it, there are certain industry niches or types of businesses 
where it might be more of a problem than others. I think 
organizations that are part of VPP generally are established 
organizations. They are pulp and paper companies that compare 
to other pulp and paper companies. I'm--on a personal and 
purely antidotal level, I don't believe that comparing a VPP 
company to a non-VPP company in the same industry that the data 
quality is going to be significantly different. Now, I don't 
have data to support that but that would be my supposition.
    Senator Murray. Dr. Michaels.
    Mr. Michaels. Let me just follow up on that. A little over 
3 years ago, when it was still called the General Accounting 
Office, the Government Accountability Office, issued a report 
evaluating VPP and related programs and essentially said, ``you 
know, they look great in that it's the right thing''--it may be 
the right thing to do but there actually aren't any data that 
would say that they are effective and they asked OSHA to 
investigate this, to actually figure out a way to study this 
question. As far as I know, nothing has been done. But that 
would be a very useful thing to take on. I think we all agree 
that VPP programs--and actually, I ran the VPP program when I 
was at the Energy Department. There are good things and we 
certainly should encourage employers to do them but, what I saw 
is, it's the employers who are committed to safety who do a VPP 
program. And so I don't know that they're really getting to the 
source of the problem and OSHA is not investigating whether 
they actually are.
    Senator Murray. Yes, I can see where that is a challenge. I 
do need to get to the floor. I have to manage a bill but Ms. 
Seminario, if I could ask you one last question. I'm concerned 
about this pandemic flu you mentioned and this exposure to 
artificial butter flavoring. What are the barriers to OSHA 
drafting an emergency temporary standard for one or all of 
these kinds of exposures? Is that possible?
    Ms. Seminario. Well, they've been petitioned to do so. We 
petitioned them for----
    Senator Murray. And their response back to you has been?
    Ms. Seminario. Well, on pandemic flu, they said we can't do 
it because a pandemic has not yet occurred and diacetyl, they 
have not responded. I might say that in the State of 
California, who got a similar petition, they are actually 
drafting a standard. They have a draft rule that is being 
developed and they've also got legislation moving forward in 
their legislatures. So at the State level, there is movement 
forward. At the Federal level, we've had no response.
    Senator Murray. So you don't see any visible barriers to 
it?
    Ms. Seminario. No, I think it is a matter of political will 
and priorities.
    Senator Murray. OK. I appreciate it and I apologize to all 
of you for keeping the hearing short. But again, your testimony 
is all part of the record. There will be questions from other 
members of the committee who were not able to be here this 
morning as well as a few more from me. We will submit them to 
you and would appreciate a response back. This committee is 
adjourned.
    Thank you very much.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                 Prepared Statement of Senator Kennedy

    Today we turn our attention to the important task of 
keeping the hardworking men and women of America safer on the 
job.
    I commend Senator Murray for holding this hearing and 
taking a lead on these issues that are vital to the safety and 
health of America's workers. We plan a number of hearings this 
year on worker safety and health--we've already had hearings on 
the health effects of the 9/11 terrorist attacks, and Senator 
Murray has convened hearings on the dangers of asbestos and 
domestic violence in the workplace. We also will continue to 
work on mine safety, an issue we worked closely on with Senator 
Enzi and Senator Isakson last year, with the passage of the 
MINER Act.
    On Saturday, the Nation observes Workers' Memorial Day--the 
anniversary of the passage of the Occupational Safety and 
Health Act of 1970. It's a time to remember and honor the 
workers who have died or been injured on the job. It's also a 
time to look to the future and work to strengthen the Nation's 
workplace safety and health laws.
    Under OSHA, we've made significant progress. Since 1970, 
according to the National Safety Council and the Bureau of 
Labor Statistics, the overall job fatality rate has been 
reduced by 78 percent. In manufacturing, the fatality rate 
dropped by 73 percent and the injury rate by 59 percent. In 
construction, the fatality rate declined by 84 percent and the 
injury rate by 68 percent. The adoption of standards--like 
those for confined spaces, dangerous equipment, and grain 
dust--have prevented thousands of unnecessary deaths and 
illnesses.
    But even today, significant numbers of workers are still 
not safe. In 2005, over 5,700 workers were killed on the job, 
and over 4 million workers became ill or were injured. That's 
16 workers who die every day, and nearly 12,000 who are injured 
or become ill from dangerous conditions on the job.
    Some groups are at greater risk. Hispanic workers are 
almost 20 percent more likely to be killed on the job. Many of 
them are immigrants who do not know their rights, and do not 
receive safety training or protective equipment. This is an 
issue that we also need to bear in mind as we look at 
comprehensive immigration reform. Exploitation of the most 
vulnerable workers puts all workers at risk.
    These statistics represent real workers and their families. 
They include men like Emanuel Torres-Gomez. Emanuel and his 
three brothers lost their father when he was killed in a dryer 
at a laundry processing plant in Oklahoma. The company knew it 
was putting workers' lives at risk by failing to provide 
guardrails, but it did nothing. They include daughters like 
Michele Lewis, whose step-father, Mike, lost his life in a 
trench collapse in Florida. The company failed to follow OSHA 
safety standards that would have saved his life.
    These families and thousands like them every year lose 
parents, sons, and daughters in preventable workplace 
tragedies. One reason is that companies blatantly ignore the 
law, but are rarely held accountable. Criminal penalties are so 
low that prosecutors don't pursue these cases. Employers who 
repeatedly violate the law pay only minimal fines, which they 
treat as just another cost of doing business.
    Our health and safety laws need to be strengthened so that 
fewer workers feel the pain that people like Michele and 
Emanuel have suffered.
    OSHA must do more to stop serious safety violations before, 
not after, workers are injured or killed. It needs to develop 
better standards for old hazards, and new standards for new 
hazards posed by new technologies and new chemicals. The record 
shows that when OSHA issues new standards and enforces them, 
lives are saved. Yet over the last 6 years, needed safety 
standards have languished, unfinished. It is time for swift 
action on strong regulations to protect America's workers.
    Many serious issues face us as we try to make American 
workers safer on the job. We have an impressive group of 
panelists today and I look forward to hearing from them.

                   Prepared Statement of Senator Enzi

    Good morning. I want to thank Chairman Murray and Ranking 
Member Isakson for scheduling today's hearing on the very 
important topic of occupational safety and health. I have a 
long-standing involvement in worker safety legislation and, as 
I have noted on many occasions, fostering the development of 
safer work places is one of the most important tasks of the 
HELP Committee.
    In the past decade or so we have witnessed steady progress 
toward safer and healthier workplaces. For example, in 1992, 
approximately 9 out of every 100 American workers suffered a 
workplace injury. By 2003, that injury rate had been cut nearly 
in half. Over the same period we have seen more than a 20 
percent decline in the annual rate of fatalities from workplace 
injuries.
    While such progress is certainly encouraging, it should not 
cause anyone to become complacent. The number of work-related 
deaths and injuries still remains unacceptably high. Workplace 
injuries continue to bring hardship to employees and their 
families and to impose significant burdens on our economy. All 
of us involved in this issue must continue our effort to make 
our Nation's workers and workplaces safer.
    If we are to be successful in this effort we must be 
prepared to cast aside old assumptions, be willing to embrace 
new ideas, and be candid enough to agree on some fundamental 
realities.
    Too often we focus solely on the handful of bad actors 
whose behavior is plainly reprehensible. While such anecdotes 
make great sound bites they do not make great policy. The fact 
is that the overwhelming majority of employers are concerned 
about the welfare of their employees; and, are fully prepared 
to comply with laws aimed at enhancing their safety on the job. 
The idea that employers do not care for their employees' safety 
is a dangerously inaccurate myth. It is dangerous because it 
creates and fosters an adversarial relationship between 
employers and government safety agencies at the very time that 
we need precisely the opposite. Cooperation, not confrontation 
is essential in making our workplaces safer.
    It is fortunate that most employers want to do the right 
thing since without their cooperation there is little realistic 
hope of continuing to improve workplace safety. Since employer 
cooperation is essential, and since the vast majority of 
employers are fully prepared to cooperate, it makes little 
sense to base a system almost exclusively on inspections and 
sanctions.
    Simple mathematics makes it clear that we cannot ever hope 
to inspect or sanction our way to greater job safety. There are 
over 7 million worksites in the United States, and only around 
2,400 OSHA inspectors. Since inspectors average around 40 
inspections a year the shortcomings of an inspect-and-sanction 
system are readily apparent.
    If we truly want to continue to improve workplace safety we 
need to think creatively; and, to fashion policies aimed at 
getting results rather than headlines.
    There are at least two areas that merit serious attention 
in terms of formulating workplace safety policy. First, we need 
to develop ways of leveraging existing resources. In the last 
several Congresses I have introduced legislation that would do 
precisely this by providing inducements for companies to 
utilize the services of private safety consultants. However, 
this is just one way of doing so. We must realize that while we 
have limited governmental resources, we have a wealth of 
private expertise. We need to continue to find practical and 
useful ways to harness our private sector resources to leverage 
our government efforts.
    Second, we must look carefully and critically at the 
regulatory model that has traditionally governed matters of 
workplace safety. The traditional model has placed principal 
emphasis on eliminating unsafe conditions, and placed only 
minimal focus on eliminating unsafe behaviors. Engineering and 
environment play important roles in workplace safety, but so 
too does employee attitude and behavior. We need to develop a 
more holistic regulatory model that addresses all the factors 
that contribute to a safer workplace. A part of this must be a 
regulatory model that reflects the reality that safety is 
everybody's business.
    It is my hope that the HELP Committee will closely examine 
these and other issues related to OSHA regulation as we move 
forward with any legislation in this area.

                  Prepared Statement of Senator Brown

    I would like to thank the Chair and Ranking Member for 
holding this extremely important hearing. I also want to thank 
the witnesses who have joined us today.
    Over the last 6 years there has been little congressional 
oversight of the Occupational Safety and Health Act and what it 
is, and is not doing, to protect workers in our ever-changing 
workforce.
    Congress passed the OSH Act more than 35 years ago and we 
have made progress toward eliminating health and safety issues 
at the workplace; however, our economy has changed dramatically 
since 1970.
    We have a responsibility to ensure that the backbone of our 
economy is protected and that workers have the active support 
of the Federal Government.
    This Administration has ignored its responsibilities to 
protect workers, and too often it takes a national tragedy like 
the Sago mine disaster and other recent coal mining disasters 
to demonstrate that safety measures for miners, and our 
country's labor force as a whole, are inadequate.
    To put it in perspective, 16 workers, on average, were 
fatally injured on the job each day during 2005.
    In Ohio, there were 168 workplace deaths in 2005. That's 
three workers every week in our State who are victims of 
preventable workplace incidents, like trench collapses, falls 
from elevated platforms, job-related assault and violence, and 
exposure to harmful toxins.
    Every week, Ohio families mourn loved ones who do not come 
home from work one day because of a horrible accident that 
could have been avoided.
    The Bush administration's record on worker safety is 
dismal.
    Under this Administration, workplace inspections have 
declined. In 2005 only 57 workplace safety inspectors were 
expected to cover the entire State of Ohio. With that level of 
staffing, it would take 103 years to inspect each workplace 
just once.
    Through budget cuts and a shift in emphasis to voluntary 
employer programs, the Administration is essentially telling 
workers ``you're on your own.'' It harkens back to an era when 
workers were treated like disposable goods. Those days are 
over.
    Congress must ensure OSHA is meeting its responsibilities 
and adapting to new challenges.
    Today I am proud to support ``The Protecting America's 
Workers Act,'' re-introduced by Chairman Kennedy and Chairman 
Murray. This bill is an important first step toward meeting the 
new challenges workers face in the 21st Century.
    The bill will provide OSHA protections to more workers, 
including flight attendants, correctional officers and 
government workers. It will increase penalties to law breakers, 
make it easier for whistleblowers to come forward, and improve 
transparency to ensure the public, and Congress, is informed as 
we meet both the existing and emerging challenges of our 
workforce.
    Workplace safety isn't an option, it's an imperative. 
American workers built this Nation's prosperity, and it is in 
our Nation's interest to protect their health and safety in the 
workplace.
    Thank you, Madam Chair.
                          Worker Safety Report
tragedy has a human face*--ten stories of the toll weak safety laws and 
             enforcement take on workers and their families
    All Americans agree that our safety and health laws should protect 
employees while they are hard at work. They believe that our laws 
should guarantee that employers make every effort to keep workers safe 
on the job. This is an American ideal, and this ideal is at the heart 
of the Occupational Safety and Health Act of 1970, which seeks to 
provide a safe and healthy workplace for Americans.
---------------------------------------------------------------------------
    * Worker Safety Report prepared by the Democratic Staff of the 
Health, Education, Labor, and Pensions Committee
---------------------------------------------------------------------------
     For too many of our hardworking men and women, however, that ideal 
is far from the reality. Every day, an average of 16 employees are 
killed on the job, and more than 12,000 suffer work-related injuries or 
illnesses. These are numbers, but the human toll is real. To protect 
the lives of our Nation's workers, and to give them the security of a 
safe workplace that they deserve, we must fix the gaps in our safety 
laws and the shortcomings in their administration.
    The personal stories of workers and their families who have 
suffered such workplace tragedies show us what needs to be done. Each 
story highlights a weakness in our safety system that, if corrected, 
would help prevent such tragedies in the future and make safe and 
healthy workplaces a reality for more workers.
  mike morrison--low penalties give employers no incentive to improve 
                            workplace safety

    In May 2005, Mike Morrison was an experienced, 48-year-old plumber 
in Florida. He was installing pipes at a construction site in Pinellas 
Park, when the nine-foot-deep trench he was working in collapsed. The 
dirt buried him up to his chest, crushing his ribs and pelvis. In pain 
and short of breath, he shouted to another worker that he thought his 
back was broken. Rescuers arrived, but were called out of the trench 
when it became clear that their lives were also in danger. Mike's arms 
were free, so they tossed him a shovel so he could try digging himself 
out. Mike dug around himself as best he could, but bled to death within 
an hour from internal injuries.
    An OSHA investigation found that the trench had not been secured 
properly before workers were sent into it. There was no sloping, 
shoring, or shielding, as required. The agency cited Mike's employer, 
B&B Plumbing, with five safety violations. The fines totalled just 
$21,000, a slap on the wrist. Two years earlier, the company had been 
cited and fined for other safety violations of the OSH Act. As Mike's 
step-daughter Michelle says, ``If the penalties had been more 
substantial 2 years ago, maybe Mike's company would have complied with 
the law and protected him properly, and maybe he'd still be with us 
today.''

    What America's Workers Deserve: Stiff penalties that make companies 
think twice before breaking the law.

 eleazar torres-gomez--companies repeatedly ignore known safety hazards

    On March 6, 2007, Eleazar Torres-Gomez went to work at a laundry 
facility in Tulsa, Oklahoma, where he had been employed for 7 years. 
That morning, he was working alone in an area where clothes are washed 
by an automated system and then sent up a conveyor belt system to an 
industrial dryer.
    One of his co-workers heard a banging noise, and came over to the 
dryer. He discovered that Eleazar was trapped inside. Apparently, he 
had been dragged up the conveyor belt with the wet clothes. For 20 
minutes, the laundry worker was subjected to temperatures near 300 
degrees. By the time maintenance workers arrived to get the dryer open, 
Eleazar had died. OSHA is currently investigating this death.
    The company had been fined by OSHA in 2005 for not installing 
adequate protective guards on similar machinery at one of its laundry 
plants in New York. What's more, OSHA had issued an industry directive 
notifying companies of the need for such protective guards. As 
Eleazar's eldest son, Emanuel said, ``If the company had added the 
guards, which it knew were required by OSHA, my father would be alive 
today. The sorrow we feel is overwhelming.''

    What America's Workers Deserve: Strong enforcement against bad 
actors who repeatedly ignore known safety hazards.
tracee binion--public-sector employees are not protected by safety laws

    Tracee Binion is a science teacher in Pinson, Alabama. She is an 
energetic person and enjoyed running marathons. In 2003, her school was 
being renovated. Blow torches and chemicals were used without any 
system of containment; a simultaneous roof replacement project gave off 
asphalt fumes. Windows in Tracee's classroom could not be opened; the 
regular ventilation system was shut down, and school administrators 
said there was no other way to ventilate the building.
    At first, Tracee had cold-like symptoms ``that never got better.'' 
After 5 days, she developed a persistent cough and ``couldn't catch her 
breath.'' Soon she had developed headaches, severe disorientation, and 
breathlessness. When she sought medical treatment, she was diagnosed 
with chemical pneumonitis and chemically-induced asthma, often referred 
to as ``occupational asthma.'' Her doctor said her x-rays looked like 
she ``had been a heavy smoker all her life.'' Ultimately, she missed 4 
weeks of school, underwent outpatient treatments for 6 weeks, and to 
this day must manage her asthma with medication. She can no longer run 
long distances.
    Unfortunately, Tracee teaches in Alabama, a State where public 
sector workers are not covered by our safety laws. They have no one to 
call when they need protection from workplace hazards. Tracee and other 
teachers were told repeatedly that there was nothing to be done. 
Finally, the Governor intervened and closed the school.

    What America's Workers Deserve: Safety and health laws to protect 
Federal, State and other vulnerable workers.
 bob julian--safety hazards are recognized in one place and ignored in 
                                another

    Bob Julian was an experienced worker at a tire factory in Oklahoma 
City, Oklahoma. His co-workers knew him as a very conscientious and 
safe worker who was dedicated to his job and his company. He was also a 
longtime member of the Rubber Workers Union. In October 1993, he was 
setting up a tire-building machine that unexpectedly began operating. 
The machine crushed and killed Bob. An investigation revealed that the 
company had failed to follow OSHA's lockout, tagout standard, which 
requires that hazardous machinery be locked down with the power off and 
tagged with a warning sign to protect workers from being injured by an 
unexpected start-up. If the company had complied with that OSHA 
standard, Bob would not have lost his life.
    Earlier that year, the company had been cited for violating OSHA's 
lockout, tagout standard at another tire-building plant in Des Moines, 
Iowa. The company therefore knew about the deadly hazard to its 
workers, but failed to take any action to protect them. After an 
investigation, OSHA issued citations and proposed penalties of $7.5 
million.

    What America's Workers Deserve: Requiring employers to implement 
health and safety protections on a national level.
  ken marcantonio--workers are penalized for reporting dangerous work 
                               conditions

    Ken Marcantonio worked as a physicist and engineer, testing 
technology that detects explosives and weapons. While employed by a 
government contractor, he was assigned to an underground vault at the 
Denver airport. Within days, Ken became terribly ill with a high fever 
and vomiting, and began coughing up blood. He later learned that 
another employee had previously become ill at the same site.
    When Ken was scheduled to return to the site to work, he told his 
managers that it needed to be inspected and cleaned before anyone else 
became ill from the environmental contamination. His employer refused, 
and told him that no inspection would be performed. Meanwhile, Ken's 
doctor had became concerned that his symptoms were similar to those of 
the hantavirus, which had killed another person recently in the Denver 
region.
    Alarmed that his employer would require him to return to such a 
dangerous job site, Ken contacted OSHA, as well as the CDC, and the 
Denver Department of Health. The day after OSHA contacted his employer 
to investigate the complaint, Ken was fired, his security clearance was 
canceled, and he was escorted off of the facility as though he had 
committed a crime--when he had simply reported an unsafe work 
environment to his managers and OSHA.

    What America's Workers Deserve: Stronger protections for workers 
who speak out about dangerous work conditions.
  jean lucus--workers have no protection from common musculoskeletal 
                                injuries

    Jean Lucus is an experienced registered nurse whose life was 
changed forever in February 2004. While caring for an obese, 600-pound 
patient recovering from surgery, Jean was assigned to physically move 
the patient from a chair to her bed. She called in a patient-care 
technician to help her with the lifting. As the patient lay back in 
bed, one leg hung painfully over the bedside, and Jean responded 
quickly to lift the leg and alleviate the pain. Suddenly, Jean felt a 
sharp pain in her lower back, and sought treatment at an emergency room 
a few hours later. Jean missed 2 weeks of work. An MRI revealed 
multiple herniated and slipped disks in her back and neck.
    As Jean put it, ``It doesn't matter how good your lifting technique 
might be, the cumulative effect takes its toll. How many years can you 
abuse your body before it says `no more?' '' After 24 years of lifting 
patients, regularly lifting a total of 2.7 tons in each 12-hour shift, 
Jean's body said, ``No more.'' Lifting devices exist to help nurses, 
but employers are not required to use them. Despite the fact that such 
musculoskeletal injuries account for one-third of all reported injuries 
in this country, OSHA has not issued a standard for safe lifting.

    What America's Workers Deserve: Federal standards that address 
lifting and other musculoskeletal injuries.
    eric peoples--no safety standards exist for thousands of toxic 
                               chemicals

    In 1997, Eric Peoples began working at the Jasper Popcorn Company 
plant. After a few months, he was promoted to work as a mixer, 
combining popcorn, oil, butter flavor, and salt into microwaveable 
bags. It was a good job, and he was happy to get it. But Eric soon 
learned that he was being exposed to high levels of diacetyl.
    The chemical gives popcorn a buttery taste, but is also an extreme 
health hazard. The company that supplied Jasper Popcorn with the butter 
flavor had since 1994 treated it as a hazardous chemical in its own 
plant, requiring its own workers to wear respirators and handle it only 
in restricted areas. Diacetyl suppliers and other flavor companies had 
reported that the chemicals had caused problems in rats and also in 
workers. In 1997, the Federal Government had warned flavor companies 
about these health hazards. Despite that warning, the buckets of 
flavoring that Eric was mixing were labeled as a product with ``no 
known health hazards.''
    Today, Eric, at age 35, suffers from bronchiolitis obliterans, a 
severe and progressive lung disease. He has only 24 percent of his 
original lung capacity and is on the inactive lung transplant registry; 
a disease like pneumonia could cause him to need an immediate 
transplant. The average rate of survival after a lung transplant is 
only 5 years. A decade after Eric lost most of his breathing ability, 
OSHA has not yet issued a hazardous chemical standard for diacetyl.

    What America's Workers Deserve: Standards to protect workers from 
toxic substances commonly used in the workplace.
  brian pluck--employers ignore their duty to provide a safe workplace

    Brian Pluck, a 24-year-old steelworker and brakeman, lost his life 
in the early morning of December 27, 2006, at the Mittal Steel plant in 
Coatesville, Pennsylvania. When he died, Brian was doing what most 
brakemen do in steel plants with in-plant railroads: he was jumping 
aboard a train for a ride down the length of the facility. The long 
distances in steel mills make it necessary for steelworkers to ride the 
cars between locations. Unfortunately, the railcar Brian attempted to 
board had no stirrups, ladders, or handrails, and he slipped under the 
moving car and was killed.
    OSHA has never issued a safety standard for in-plant railroads, 
despite the fact that related accidents are the leading cause of death 
by traumatic injury in the steel industry. The Federal Railroad 
Administration has no jurisdiction over railroads inside an industrial 
plant, but its regulations require safety equipment, such as stirrups, 
ladders, or handrails, on all outdoor railcars for worker safety. The 
dangers of in-plant railcars, and the need for such safety equipment, 
are widely known in the steel industry. Under the OSH Act, employers 
have a ``general duty'' to protect against such known hazards, but too 
often fail to do so.

    What America's Workers Deserve: Aggressive enforcement of 
employers' duty to provide a safe workplace and eliminate known safety 
hazards.
          hector rivas--osha inspections: too little, too late

    On March 9, 2006, Hector Rivas, a mechanic, was working alone at 
the bus yard on Freeport Street in Boston, Massachusetts. As was the 
company's regular procedure, Hector used a gasoline-powered jumpstarter 
to start school buses on that cold winter morning. He was using the 
jumpstarter in an enclosed service truck. The carbon monoxide expelled 
by the jumpstarter overwhelmed him. He fell unconscious, then died.
    OSHA found that the company had violated multiple safety measures 
that would have saved Hector's life. For instance, the company failed 
to install adequate ventilation controls to reduce the build-up of 
carbon monoxide in the mechanics' work area, failed to train the 
mechanics in basic safety procedures, and did not provide them with 
personal protective equipment.
    All of those routine safety measures would have been identified by 
an OSHA inspection, but none had taken place before Hector's death. One 
simple OSHA inspection would have saved Hector's life and made his 
fellow mechanics safer on the job. What is more, the ventilator for the 
service truck that would have prevented this tragedy costs less than 
$50.00. Instead, the company faced an OSHA fine of $70,000 for its 
willful negligence that led to Hector's death.

    What America's Worker's Deserve: Safety inspections that find and 
fix dangerous conditions before workers are hurt or killed.
                 underfunding of osha hurts all workers
    A common thread runs through many of these personal stories of 
worker injuries and death: OSHA has much more to do to keep America's 
workers safe on the job. New standards are needed for existing and 
emerging workplace hazards; more inspections are required to find 
violations. America's workers also need and deserve stronger 
enforcement and tougher penalties to deter the worst actors, as well as 
stronger protections for whistleblowers who speak up about safety 
concerns.
    A serious lack of resources at OSHA makes it much more difficult to 
accomplish these tasks. Since 2001, the OSHA budget has been cut by 6 
percent in real dollars, and hundreds of positions have been 
eliminated. President Bush's recent budget proposals continue to 
maintain insufficient funding levels.
    The results of this cost-cutting are grim. Today, Federal OSHA has 
only 818 safety and health inspectors, and the State OSHAs have 1,294. 
Yet OSHA has jurisdiction over 130 million workers in the 8.5 million 
workplaces--about one OSHA inspector for every 63,670 workers.
    OSHA is a small agency with a large and vital mission: to protect 
the hardworking men and women who put their lives at risk when they go 
to work to earn a living for their families. We must provide the 
resources OSHA needs to accomplish this goal. We owe America's workers 
no less.
                                 ______
                                 
       Response to Questions of Senator Kennedy by David Michaels
    Question 1. In your testimony, you mention problems in the 
collection of data that have led to inaccurate information on 
occupational illnesses and injuries. Please explain what the 
impediments are to accurate data collection. Can you recommend specific 
strategies for overcoming them and improving our data on illness and 
injury rates?
    Answer 1. Governmental and non-governmental organizations have 
examined our Nation's system for collecting and analyzing data on work-
related injuries, illnesses and fatalities,\1\ \2\ \3\ as have numerous 
independent researchers.\4\ \5\ \6\ \7\ \8\ \9\ \10\ Without exception, 
all of these sources describe one or more of the following limitations 
with the existing data: (1) underreporting by employers because of 
misunderstandings about the recording and reporting systems; (2) 
inaccurate records of work-related injuries and illnesses by employers 
because it is not a high priority for them; and (3) intentional under-
reporting by employers.
    In 1987, a special panel convened by the National Academy of 
Sciences issued its report Counting Injuries and Illnesses in the 
Workplace: Proposal for a Better System.\1\ The panel offered 24 
specific recommendations to enhance the Bureau of Labor Statistics' 
system for collecting and analyzing work-related injuries, illnesses 
and deaths. It would be worthwhile for BLS to convene an advisory 
committee for a short period of time (e.g., 6 months) for the purpose 
of reviewing these 24 recommendations and determining which were 
implemented or are no longer relevant. The advisory committee should be 
comprised with as many of the original members as possible, along with 
a select number of additional members, including relevant officials 
from BLS, OSHA (i.e., those most familiar with the agencies' 
recordkeeping and reporting regulations) and NIOSH. The committee's 
report should identify the specific obstacles (i.e., legal, regulatory, 
and financial) which hinder adoption of the recommendations.

    Question 2. Similarly, you discuss in your testimony numerous 
impediments to OSHA's administration of standard setting and 
rulemaking. Could you please expand on those subjects with an eye 
towards what Congress and OSHA can do to correct those problems?
    Answer 2. There are several problems related to OSHA's inability to 
promulgate in a timely manner new health and safety standards. One 
needs to look no further than OSHA's rulemaking history for chemical 
contaminants: in its 37-year history, the agency has only issued 
comprehensive health standards for 31 hazardous substances.\11\ In the 
last 10 years (1997-2006), the agency has only issued two of these 
protective rules.\12\ The process is cumbersome and time consuming; 
many recognized hazards are not addressed by comprehensive OSHA 
standards, leaving workers at risk.
    One relatively straight-forward solution available to Congress is 
to amend 1910.1000, Table Z-1 to conform with adopted value contained 
in the American Conference of Governmental Industrial Hygienists 2007 
TLVs for time-weighted averages, short-term exposure limits, and 
notations.
    A second solution is for Congress to require all employers to adopt 
a safety and health management program to identify hazards and 
potential hazards, adopt controls to prevent workers' exposure to the 
hazard, and training, and employee involvement.
                               References
    1. National Research Council, Counting Injuries and Illnesses in 
the Workplace: Proposal for a Better System, 1987.
    2. The Keystone Center, Keystone National Policy Dialogue on Work-
related Illness and Injury Recordkeeping, 1989.
    3. General Accounting Office. Occupational Safety & Health: 
Assuring Accuracy in Employer Injury and Illness Records, 1988; Options 
for Improving Safety and Health in the Workplace, 1990; Occupational 
Safety & Health: Changes Needed in the Combined Federal-State Approach, 
1994; Occupational Safety & Health: Efforts to Obtain Establishment-
Specific Data on Injuries and Illnesses, 1998; Workplace Safety and 
Health: OSHA Can Strengthen Enforcement through Improved Program 
Management, 2002.
    4. Azaroff LS, Levenstein C, Wegman DH. Occupational injury and 
illness surveillance: conceptual filters explain underreporting. Am J 
Pub Health 92(9): 1421-1429 (September 2002).
    5. Seligman PJ, Sieber WK, et al. Compliance with OSHA 
recordkeeping requirements. Am J Pub Health 78(9): 1218-1219 (September 
1988).
    6. McNeely EM. Who's counting anyway?: the problem with 
occupational safety and health statistics. J Occup Medicine 33(10): 
1071-1075 (October 1991).
    7. Leigh JP. A report card for occupational injuries and illnesses. 
Am J Ind Medicine 33:422-424 (1998).
    8. Rosenman KD, Gardiner JC, et al. Why most workers with 
occupational repetitive trauma do not file for workers' compensation. J 
Occup Environ Med 42(1): 25-34 (January 2000). Friedman LS, Forst L. 
The impact of OSHA recordkeeping regulation changes on occupational 
injury and illness trends in the U.S.: a time series analysis. Occup 
Environ Med (February 2007).
    9. Rosenman KD, Kalush A, et al. How much work-related injury and 
illness is missed by the current national surveillance system? J Occup 
Environ Med 48(4): 357-365 (April 2006).
    10. Welch LS, Dong X, Carre F, Ringen K. Is the apparent decrease 
in injury and illness rates in construction the result of changes in 
reporting? Int J Occup Environ Health 13:39-45 (2007).
    11. Asbestos; 3,3 dichlorobenzidine; chloromethyl methyl ether; 
ethyleneimine; bis(chloromethyliether); aminodiphenyl; alpha-
naphthylamine; N-nitrosodimethyl amine; beta-naphthylamine; 4-
nitrobiphenyl; benzidine; 4-dimethylaminoazobenz-
ene; 2-acetylaminoflourene; beta-propiolactone; coke-oven emissions; 
vinyl chloride; 
arsenic; benzene; acrylonitrile; ethylene oxide; formaldehyde; 4,4-
methylenedi-
aniline; cadmium; 1,3 butadiene; methylene chloride. cotton dust, lead, 
DBCP, hex-
avalent chromium, bloodborne pathogens, cotton dust.
    12. Methylene chloride final rule issued in 1997 and hexavalent 
chromium final rule issued in 2006.
                                 ______
                                 
        Response to Questions of Senator Enzi by Peg Seminario 
                           and David Michaels
                             peg seminario
    Question 1. Ms. Seminario, as you know the AFL-CIO publishes an 
annual report entitled ``Death on the Job.'' The report includes as 
``workplace fatalities'' a substantial number of fatalities that 
actually occur away from the workplace, or are not otherwise within 
OSHA's jurisdiction. For example, over 25 percent of the fatalities 
cited in this year's report involve highway crashes. In some States, 
most notably rural ones, the percentage is even higher. Do you believe 
that including these fatalities, and/or others over which OSHA does not 
have jurisdiction, in the statistical compilation is a fair indicator 
of OSHA's effectiveness? Do you think it is a fair indicator of a given 
State's effectiveness or commitment to safety in the workplace?
    Answer 1. The AFL-CIO annual report ``Death on the Job'' provides a 
national and state-by-state review of job safety and health in the 
United States. In preparing the report, we rely on and utilize the 
occupational fatality and injury data compiled by the Department of 
Labor Bureau of Labor Statistics (BLS). Both OSHA and BLS include work-
related fatalities and injuries that occur away from the workplace in 
the definition of what is considered work-related for the purpose of 
recording and reporting. Fatality rates and injury and illness rates 
reported by the BLS are utilized by OSHA and others for measurements of 
effectiveness. While there are limitations in this data, particularly 
reported injury and illness data which undercount the actual incidence 
of work-related cases, this data provides one metric to evaluate 
workplace safety.

    Question 2. Given the high percentage of highway crashes contained 
in the report is it not logical to assume that we could achieve an even 
more dramatic reduction in ``workplace'' fatalities through increased 
enforcement of traffic laws than through increased OSHA regulation or 
enforcement?
    Answer 2. According to the final BLS fatality data, in 2005 highway 
incidents were responsible for 1,437 of the total 5,734 fatal workplace 
injuries, or 25 percent of fatal injuries. Better enforcement of 
traffic laws could help reduce these highway fatalities, but would not 
address the causes of 75 percent of fatal workplace injuries, nor the 
estimated 50,000 occupational disease deaths that occur each year. The 
majority of workplace injuries, illnesses and deaths are caused by 
exposures to occupational hazards which are firmly in OSHA's 
jurisdiction, and not subject to regulation or enforcement by other 
agencies. Thus the most effective means to reduce the majority of work-
related injuries, illnesses and fatalities is through OSHA regulation 
and enforcement to reduce exposure to major workplace hazards, 
supplemented by outreach, education and related activities.

    Question 3. The report also references a bill which I introduced in 
the 109th Congress that was entitled ``The Occupational Safety and 
Partnership Act'' and claims this legislation would have ``weakened'' 
OSHA. The bill would encourage the use of outside consultants to 
leverage OSHA's limited resources and increase compliance. Do you 
believe that the extensive review of the workplace by safety experts 
and the implementation of a comprehensive safety plan provided for in 
the legislation is so outweighed by the penalty exemption that my bill 
would ``weaken'' workplace safety? Why?
    Answer 3. Strong, effective enforcement is one of the cornerstone's 
of the OSHA law and OSHA program. I believe that the Occupational 
Safety and Partnership Act would make it much more difficult for OSHA 
to exercise its enforcement authority. The bill creates a penalty 
exemption for employers who implement a safety and health plan and are 
certified as being in compliance by a private consultant. The 
judgements and determinations of the consultant create a safe harbor 
and supercede the government's determinations. If upon inspection, OSHA 
finds that the employer is not in compliance, and that the review and 
the determinations made by the consultant deficient, OSHA must none-
the-less accept these determinations.
    OSHA's current penalty policies already provide for penalty 
adjustments/reductions for employers who have implemented a safety and 
health program and for the good faith exhibited by an employer. We do 
not agree that a total penalty exemption is wise or warranted.
    We agree that implementing comprehensive safety and health programs 
in the workplace is important. We believe that the best means to 
achieve this is for OSHA to issue a safety and health program rule, 
similar to what was issued in California and other States, and to 
provide assistance, outreach and training to help employers meet their 
obligations. Private consultants could help employers to comply with a 
safety and health program rule and implement effective safety and 
health programs.
    It should be noted that Federal OSHA was in the process of 
developing a safety and health program rule and was well into the 
regulatory process. The rule was widely supported by safety and health 
professionals, unions and many employers. But in 2003, that rule was 
withdrawn from the regulatory agenda by the Bush administration, and 
efforts by OSHA to implement safety and health programs on a wide-scale 
basis ceased.

    Question 4.  Do you believe that programs such as VPP that provide 
some exemption on the enforcement side ``weaken'' workplace safety? 
Why?
    Answer 4. The AFL-CIO has generally been opposed to any enforcement 
exemptions. However, our main concern with VPP is that it is a very 
resource intensive program, and we question whether scarce government 
resources should be directed toward a recognition program for the 
``best'' employers, rather than focusing on employers with poor safety 
and health records and unsafe and unhealthful working conditions.

    Question 5. The AFL-CIO report previously referenced also 
criticizes my bill because it would impose penalties on employees that 
violate safety rules by failing to wear protective equipment. Isn't 
workplace safety everybody's responsibility? If penalties enhance 
compliance then why are penalties aimed at employee compliance 
inappropriate?
    Answer 5. Under the Occupational Safety and Health Act, the 
employer has legal responsibility to provide safe and healthful working 
conditions and to comply with OSHA standards, therefore, it is 
appropriate that OSHA citations and penalties be directed toward 
employers who fail to meet their legal obligations and comply with the 
law.
    The AFL-CIO does believe that employees have a responsibility to 
comply with safety rules, and that disciplinary measures are 
appropriate for employees who do not comply with these rules. However, 
we believe that employers, and not the government are in the best 
position for enforcing compliance with employer safety rules.

    Question 6. Do you believe we should eliminate the penalty 
provisions that are currently provided for under The Mine Safety Act? 
If not, why should there be employee penalties under the Mine Act but 
not under the OSH Act?
    Answer 6. The AFL-CIO does not have a position on whether the 
employee penalty provisions provided under the Mine Safety and Health 
Act should be eliminated. This is not something we have advocated. 
However, the MSHA provisions are limited to willful violations by an 
employee of standards related to smoking or carrying of smoking 
materials. Such violations in a mining environment have the potential 
to cause a catastrophic event that endangers the lives of many. This is 
not analogous to failures of employees to wear personal protective 
equipment, which have been the focus of employee penalty proposals 
under OSHA.
                             David Michaels
    Question 1. To the extent that workplace injury and fatality 
statistics are used as a measure or indication of OSHA's effectiveness 
in achieving or improving occupational safety should we be including 
deaths and injuries that occur outside of OSHA's jurisdiction in such 
statistical compilations?
    Answer 1. Collecting and analyzing work-related injury, illness, 
near-miss and fatality data serves multiple purposes, many of which 
were articulated by Congress when it passed the Occupational Safety and 
Health Act of 1970. Within the Statute's ``Congressional Findings and 
Purpose,'' lawmakers recognized the value of recordkeeping and 
reporting system to ``help achieve the objectives of this Act and 
accurately describe the nature of occupational safety and health 
problems.''
    The need for accurate data on workplace conditions is no less 
important today, yet our current system is disjointed and deficient. 
One key objective of an occupational health and safety reporting system 
is to assess which types of injuries, illnesses and fatalities are 
occurring and to develop prevention efforts to address these specific 
problem areas. Without complete and accurate data, such efforts are not 
as effective.
    There may be some components of workplace injury, illness and 
fatality statistics that are not used in measuring OSHA's 
effectiveness, just as there may be some components that are not used 
in evaluating employer safety programs (see answer to Question 2). But 
as noted above, recordkeeping and reporting have multiple purposes, 
including priority setting and estimating the extent and distribution 
of the costs of workplace injuries, illnesses and mortality.

    Question 2. To the extent that workplace injury and fatality 
statistics are used as a measure or indication of an employer's 
effectiveness in securing or improving occupational safety should we be 
including in such statistical compilations deaths and injuries that 
occur away from the worksite where the employer has no practical 
control over employee behavior that is contrary to external law or 
employer policy?
    Answer 2. As I noted above, there may be some components of 
workplace injury, illness and fatality statistics that are not used in 
measuring employer safety programs, just as there may be some 
components that are not used in evaluating OSHA effectiveness (see 
answer to Question 1). But, to repeat the answer above, recordkeeping 
and reporting have multiple purposes, including priority setting and 
estimating the extant and distribution of the costs of workplace 
injuries, illnesses and mortality.
    Furthermore, there are many different jobs in which workers are not 
at fixed-worksite, including window-washers, landscapers, homecare aids 
and visiting nurses, residential roofers and fisherman. Although these 
kinds of worksites may pose unique challenges for an employer in terms 
of ensuring workers with necessary safety and health protections, it 
would make little sense to remove them from any injury or illness 
recordkeeping and reporting system.

    [Editor's Note: Due to the high cost of printing, previously 
published materials submitted for the hearing record are not reprinted. 
To review related articles, please see the following: www.occenvmed.com 
to review the article entitled, ``The impact of OSHA recordkeeping 
regulation changes on occupational injury and illness trends in the US: 
a time-series analysis'' by Lee S. Friedman, Linda Forst; ACOEM.org to 
review the article entitled, ``How Much Work-Related Injury and Illness 
is Missed By the Current National Surveillance System?'' by Kenneth D. 
Rosenman et al.; and www.defendingscience.org/SKAPP-Staff.cfm to review 
the article entitled, ``Scientific Evidence in the Regulatory System: 
Manufacturing Uncertainty and the Demise of the Formal Regulatory 
System'' by David Michaels, M.P.H., Ph.D. and Celeste Monforton, 
M.P.H.]

    [Whereupon, at 10:00 a.m., the hearing was adjourned.]

                                    

      
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