[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
NEVADA'S WORKPLACE HEALTH AND
SAFETY ENFORCEMENT PROGRAM: OSHA'S
FINDINGS AND RECOMMENDATIONS
=======================================================================
HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, OCTOBER 29, 2009
__________
Serial No. 111-37
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
----------
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice John Kline, Minnesota,
Chairman Senior Republican Member
Donald M. Payne, New Jersey Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey Howard P. ``Buck'' McKeon,
Robert C. ``Bobby'' Scott, Virginia California
Lynn C. Woolsey, California Peter Hoekstra, Michigan
Ruben Hinojosa, Texas Michael N. Castle, Delaware
Carolyn McCarthy, New York Mark E. Souder, Indiana
John F. Tierney, Massachusetts Vernon J. Ehlers, Michigan
Dennis J. Kucinich, Ohio Judy Biggert, Illinois
David Wu, Oregon Todd Russell Platts, Pennsylvania
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Tom Price, Georgia
Timothy H. Bishop, New York Rob Bishop, Utah
Joe Sestak, Pennsylvania Brett Guthrie, Kentucky
David Loebsack, Iowa Bill Cassidy, Louisiana
Mazie Hirono, Hawaii Tom McClintock, California
Jason Altmire, Pennsylvania Duncan Hunter, California
Phil Hare, Illinois David P. Roe, Tennessee
Yvette D. Clarke, New York Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California
Mark Zuckerman, Staff Director
Sally Stroup, Republican Staff Director
C O N T E N T S
----------
Page
Hearing held on October 29, 2009................................. 1
Statement of Members:
Chu, Hon. Judy, a Representative in Congress from the State
of California, Los Angeles Times article, dated October 21,
2009, ``Worker Safety Appeals Board Rulings Raise
Question''................................................. 53
Kline, Hon. John, Senior Republican Member, Committee on
Education and Labor........................................ 5
Prepared statement of.................................... 7
Additional submissions:
Ensign, Hon. John, U.S. Senator from the State of
Nevada, prepared statement of...................... 7
Gibbons, Hon. Jim, Governor, State of Nevada,
prepared statement of.............................. 6
Miller, Hon. George, Chairman, Committee on Education and
Labor...................................................... 1
Prepared statement of.................................... 4
Additional submissions:
Table: Fiscal Year 2008 State Plan Enforcement
Activity........................................... 62
Letter dated November 10, 2009, from the Occupational
Safety and Health State Plan Association (OSHSPA).. 65
Prepared statement of OSHSPA......................... 66
Letter dated August 31, 2007, from John Olaechea..... 71
Questions submitted for the record to:
Mr. Barab............................................ 75
Mr. Jayne............................................ 77
Statement of Witnesses:
Barab, Jordan, acting Assistant Secretary for Occupational
Safety and Health, U.S. Department of Labor................ 15
Prepared statement of.................................... 21
Report: ``Review of the Nevada Occupational Safety and
Health Program''....................................... 16
Responses to questions submitted......................... 75
Jayne, Donald E., administrator, Division of Industrial
Relations, Department of Business & Industry, State of
Nevada..................................................... 26
Prepared statement of.................................... 28
Responses to questions submitted......................... 77
Koehler-Fergen, Debi......................................... 29
Prepared statement of.................................... 32
``Workplace Tragedy Family Bill of Rights''.............. 31
Mirer, Franklin E., Ph.D., CIH, professor, environmental and
occupational health sciences, Urban Public Health Program,
Hunter College, City University of New York................ 35
Prepared statement of.................................... 37
Reid, Hon. Harry, Majority Leader, U.S. Senate............... 10
Prepared statement of.................................... 12
NEVADA'S WORKPLACE HEALTH AND
SAFETY ENFORCEMENT PROGRAM:
OSHA'S FINDINGS AND RECOMMENDATIONS
----------
Thursday, October 29, 2009
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 10:01 a.m., in room
2175, Rayburn House Office Building, Hon. George Miller
[chairman of the committee] presiding.
Present: Representatives Miller, Kucinich, Wu, Altmire,
Hare, Sablan, Titus, Chu, Kline, Petri, McKeon, McMorris
Rogers, and Roe.
Also present: Representative Berkley.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jody Calemine, General Counsel; Lynn
Dondis, Labor Counsel, Subcommittee on Workforce Protections;
Patrick Findlay, Investigative Counsel; Richard Miller, Senior
Labor Policy Advisor; Alex Nock, Deputy Staff Director; Joe
Novotny, Chief Clerk; Rachel Racusen, Communications Director;
Meredith Regine, Junior Legislative Associate, Labor; James
Schroll, Junior Legislative Associate, Labor; Erin Sullivan,
Investigative Associate; Michael Zola, Chief Investigative
Counsel, Oversight; Mark Zuckerman, Staff Director; Kirk Boyle,
Minority General Counsel; Casey Buboltz, Minority Coalitions
and Member Services Coordinator; Ed Gilroy, Minority Director
of Workforce Policy; Rob Gregg, Minority Senior Legislative
Assistant; Richard Hoar, Minority Professional Staff Member;
Barrett Karr, Minority Staff Director; Alexa Marrero, Minority
Communications Director; Jim Paretti, Minority Workforce Policy
Counsel; Susan Ross, Minority Director of Education and Human
Services Policy; Molly McLaughlin Salmi, Minority Deputy
Director of Workforce Policy; Linda Stevens, Minority Chief
Clerk/Assistant to the General Counsel; and Loren Sweatt,
Minority Professional Staff Member.
Chairman Miller [presiding]. The committee on Education and
Labor meets this morning to examine a federal Occupational
Safety and Health Administration review of the Nevada health
and safety program.
The committee first heard testimony regarding problems with
Nevada's OSHA program at a June 2008 hearing on construction
safety. During an 18-month period between 2006 and 2008, 12
construction workers died on the Las Vegas strip.
At the hearing, witnesses said that it was routine for
Nevada OSHA officials to reduce or eliminate tough sanctions
behind closed doors.
The Nevada workplace health and safety was also the focus
of a year-long investigation by the Las Vegas Sun in 2007 and
2008. The paper reported that productivity was frequently put
ahead of safety as contractors pursued completion bonuses.
These growing health and safety issues sparked labor
disputes. Workers staged a walkout in June of 2008, demanding
safety improvements, after concerns grew over eight deaths at
two construction sites in Las Vegas.
Safety trends in Nevada had been pointing in the wrong
direction. Between 2003 and 2007, Nevada's construction
illnesses and injury rate went up by more than 20 percent while
the national construction injury and illness rate fell by 11
percent.
As safety became an issue, so did enforcement. Two
complaints alleging backroom deals between Nevada OSHA and
politically connected firms were lodged by those involved in a
2008 tragedy that killed two workers and nearly took the life
of another at the Orleans Hotel and Casino.
The mother of one worker that was killed at the Orleans
Hotel joins us today. She will recount the reckless disregard
of worker safety by Boyd Gaming and the agreement with Nevada
OSHA that resulted in Boyd escaping willful violations even
though they had been cited for substantially similar violations
at its other properties in Nevada over the previous 3 years.
The lead Nevada OSHA inspector who recommended willful
violations against the Orleans took an extraordinary step of
filing a complaint with federal OSHA officials after the deal
was made. He resigned his position shortly thereafter.
The committee was advised that he was counseled that
assisting in a complaint against the state could result in an
adverse personnel action.
The inspector pointed to extensive irregularities in the
Boyd Gaming deal and said that the deal could only be a result
of OSHA protecting the contractors from bad publicity and
wrongful death lawsuits by the workers' families.
This and many other allegations of misconduct eventually
led to a special review of the Nevada state plan by the new
administration.
The review shows that Nevada's OSHA program failed to cite
employers for clear hazards, didn't properly train inspectors,
didn't follow up to ensure that dangerous conditions were
fixed, failed to include worker representatives in inspections,
and failed to notify families of deceased workers of
investigations or give them the chance to speak to
investigators.
It is also troubling how infrequently Nevada inspectors
found serious violations and took little meaningful enforcement
action.
As this chart shows, last year only 29 percent of Nevada's
citations were classified as serious. Compare that to 44
percent in--for other state plans and 77 percent for federal
OSHA.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
It is clear that there is something terribly wrong with the
Nevada's OSHA program. But Nevada's problems may also reflect a
larger problem with the oversight of the 27 states and
territories that operate their own plans.
Federal OSHA must ensure that the state operates its own
plan in a manner that is at least as effective as the federal
program. No flags were raised during previous reviews of
Nevada's plans under the Bush administration.
In fact, Bush OSHA officials called Nevada's health and
safety program ``very good overall.'' These thumbs-up were
occurring at the same time that fatalities and injuries were
skyrocketing.
Federal officials were clearly asleep at the switch. With
rosy proclamations from the Bush administration, there was no
push for Nevada to better protect its workers.
This was at least until the new acting assistant secretary
for OSHA, under the leadership of a new administration, ordered
a comprehensive review of the state plan. He will join us today
to explore the agency's conclusions and recommendations.
I am also pleased that Nevada's OSHA's new director will
join us today, and I look forward to hearing from him about
Nevada's plans for turning this program around.
While Nevada promises to improve the program are an
important first step, they must be strictly monitored by
federal officials. Basic oversight of state plans is not only
important in Nevada, but it is vital to the 57 million American
workers whose health and safety protections are enforced by 27
state plans.
While some states are running innovative programs, it is
clear that additional reviews of state plans is warranted.
Excluding California because they have higher penalties,
the average serious penalty assessed by state plans is only 65
percent of the federal OSHA average. This disparity suggests
that some states may not be as effective as federal OSHA.
Indeed, one witness today will offer his perspective that
Nevada may not be the only state with problems meriting closer
scrutiny.
OSHA's announcement of additional state reviews is
important to ensure that every worker has sufficient health and
safety protection while on the job.
Before we get to the witnesses, we will first hear from our
distinguished guest from the State of Nevada, Senator Reid--I
don't know if--has the senator arrived yet? Not yet, okay--who
has been a stalwart in the fight for health and safety of the
American workers, ensuring that those who have been harmed on
the job receive just compensation.
And we look forward to his testimony as soon as he shows
up.
In the meantime, while he is--we understand that he is on
his way--I would like to now recognize the senior Republican
member of our committee, Mr. Kline, for an opening statement.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman, Committee on
Education and Labor
The Education and Labor Committee meets this morning to examine a
federal Occupational Safety Health Administration review of the Nevada
health and safety program.
The committee first heard testimony regarding problems with
Nevada's OSHA program at a June 2008 hearing on construction safety.
During an 18-month period between 2006 and 2008, 12 construction
workers died on the Las Vegas strip. At the hearing, witnesses said
that it was routine for Nevada OSHA officials to reduce or eliminate
tough sanctions behind closed doors.
Nevada workplace health and safety was also the focus of a year-
long investigation by the Las Vegas Sun in 2007 and 2008. The paper
reported that productivity was frequently put ahead of safety as
contractors pursued completion bonuses.
These growing health and safety issues sparked labor disputes.
Workers staged a walkout in June 2008 demanding safety improvements
after concerns grew over eight deaths at two construction sites in Las
Vegas.
Safety trends in Nevada had been pointing in the wrong direction:
between 2003 and 2007, Nevada's construction illness and injury rate
went up by more than twenty percent while the national construction
injury and illness rate fell by 11 percent.
As safety became an issue, so did enforcement.
Two complaints alleging backroom deals between Nevada OSHA and
politically connected firms were lodged by those involved in a 2008
tragedy that killed two workers and nearly took the life of another at
the Orleans Hotel and Casino.
The mother of one worker who was killed at the Orleans Hotel joins
us today. She will recount the reckless disregard of workers safety by
Boyd Gaming and the agreement with Nevada OSHA that resulted in Boyd
escaping willful violations even though they had been cited for
substantially similar violations at its other properties in Nevada over
the previous three years.
The lead Nevada OSHA inspector who recommended willful violations
against the Orleans took the extraordinary step of filing a complaint
with federal OSHA officials after a deal was made. He resigned his
position shortly thereafter. He was counseled that assisting in a
complaint against the state could result in an adverse personnel
action.
The inspector pointed to ``extensive irregularities'' in the Boyd
Gaming deal and said that the deal could only be the result of OSHA
protecting the contractor from bad publicity and a wrongful death
lawsuit by the workers' families.
This and many other allegations of misconduct eventually led to a
special review of the Nevada state plan by the new administration.
The review shows that Nevada's OSHA program failed to cite
employers for clear hazards, didn't properly train inspectors, didn't
follow up to ensure that dangerous conditions were fixed, failed to
include worker representatives in inspections, and even failed to
notify families of deceased workers of investigations or give them the
chance to speak to investigators.
It is also troubling how infrequently Nevada inspectors found
serious violations and took little meaningful enforcement action. As
this chart shows, last year only 29 percent of Nevada's citations were
classified as ``serious.'' Compare that to 44 percent for other state
plans and 77 percent for federal OSHA.
It is clear that there is something terribly wrong with the
Nevada's OSHA program.
But, Nevada's problems may also reflect a larger problem with the
oversight of the 27 states and territories that operate their own
plans. Federal OSHA must ensure that a state operates its own plan in a
manner that is ``at least as effective'' as the federal program.
No flags were raised during previous reviews of Nevada's plan under
the Bush administration. In fact Bush OSHA officials called Nevada's
health and safety program ``very good overall.'' These thumbs-up were
occurring at the same time that fatalities and injuries were
skyrocketing. Federal officials were clearly asleep at the switch.
With rosy proclamations from the Bush administration, there was no
push for Nevada to better protect its workers.
This was at least until the new acting assistant secretary of OSHA,
under the leadership of a new administration, ordered a comprehensive
review of the state plan. He will join us today to explore the agency's
conclusions and recommendations.
I am also pleased that Nevada OSHA's new director joins us today
and I look forward to hearing from him about how Nevada plans on
turning this program around. While Nevada's promises to improve the
program are an important first step, they must be strictly monitored by
federal officials.
Basic oversight of state plans is not only important in Nevada, but
it is vital to the 57 million American workers whose health and safety
protections are enforced by a state plan. While some states are running
innovative programs, it is clear that additional reviews of state plans
are warranted.
Excluding California because they have higher penalties, the
average serious penalty assessed by state plans is only 65 percent of
the federal OSHA average. This disparity suggests that some state plans
may not be as effective as federal OSHA,
Indeed, one witness today will offer his perspective that Nevada
may not be the only state with problems meriting closer scrutiny.
OSHA's announcement of additional state reviews is important to
ensure that every worker has sufficient health and safety protection
while on the job.
Before we get to these witnesses, we will first hear from a
distinguished guest from the State of Nevada. Senate Majority Leader
Harry Reid has been a stalwart in the fight for the health and safety
of American workers and ensuring that those who have been harmed on the
job receive just compensation.
Thank you for joining us today. I look forward your testimony and
the testimony of all our witnesses today. I now yield to Ranking Member
Kline for his opening statement.
______
Mr. Kline. Thank you, Mr. Chairman. Good morning to
everybody.
Worker safety and health are among the most fundamental
concerns of every employer in this country. No worker wants to
risk illness or injury on the job, and no employer wants that
risk either.
Recognizing that different states have different workplace
needs, the Federal Occupational Safety and Health Act allows
states to create their own state-run safety and health
programs, subject to federal OSHA's approval and monitoring.
Currently, 22 states and jurisdictions, including my home
state of Minnesota, operate complete state plans that cover
both public and private sector workers. Several other states
have plans that cover only public sector workers, leaving
federal OSHA to inspect the private sector in those states.
State workplace safety plans can be extremely effective.
According to the Occupational Safety and Health State Plan
Association, state plans are able to inspect more workplaces
more effectively than the federal government, are considered
more flexible than federal OSHA, and can foster safety
innovation that is not always available at the federal level.
Unfortunately, not every state plan is reaching its full
potential to enhance protections for workers, and one state
plan in particular has been found to fall far short, putting
the lives of workers at risk.
We will hear this morning from OSHA about its recent review
of the Nevada state plan. I know concerns about workplace
safety are being taken very seriously by that state's leaders,
and I welcome OSHA's efforts to identify weaknesses in Nevada's
safety program so that necessary steps can be taken to protect
workers.
I would like to read briefly from a statement submitted by
Nevada's governor, Jim Gibbons: ``I affirm my strong commitment
to worker safety in Nevada and believe that our worker safety
can best be ensured by a plan that is developed and managed at
the state level, adhering to and exceeding federal standards,
rather than one designed and operated from Washington.''
Governor Gibbons has put his finger squarely on our
challenge. In evaluating state OSHA systems, our goal must be
to preserve the flexibility and responsiveness of state plans,
which in many instances actually exceed federal safety
requirements, while ensuring adequate oversight for these plans
that are not effectively protecting workers.
Mr. Chairman, I would request unanimous consent to have
Governor Gibbons' full statement inserted in the record, along
with a statement from Nevada Senator John Ensign.
Chairman Miller. Without objection, so ordered.
[The information follows:]
Prepared Statement of Hon. Jim Gibbons, Governor, State of Nevada
Thank you Chairman Miller, Ranking Member Kline, Congresswoman
Titus and distinguished Committee members for allowing me this
opportunity to submit this statement for the record.
An effective and efficient worker safety program is of paramount
importance to me, as it should be for all Nevadans, and I welcome the
opportunity to engage in this healthy dialogue on how Nevada's state
plan can be updated to ensure it remains as effective as the federal
plan.
I would first like to commend Nevada Occupational Safety and Health
Administration (Nevada OSHA) for their commitment and hard work
throughout the review process from the Department of Labor's
Occupational Safety and Health Administration (OSHA). It is my
understanding that both agencies worked very well together and showed
an immediate desire to solve the underlying problems which will
ultimately protect Nevadans from further instances.
As you know, the State of Nevada is among twenty-seven states and
territories that have elected to operate its own worker safety program.
As a former Member of Congress, I recognize the importance of federal
oversight in critical areas like worker safety, but also believe this
is an opportunity to reaffirm the importance of developing and ensuring
the proper operation of state agencies that can more adeptly meet the
needs of Nevadans.
The Nevada budget, like most state budgets, is more strained than
it has been in decades, which has highlighted the importance of robust
state-federal partnerships. Unlike many programs where state
expenditures are met with robust cost-sharing by the federal
government, OSHA has slipped behind in federal support levels,
presenting a set of fiscal challenges. While federal funding
commitments are intended to split the cost of state-run plans evenly,
this number has crept up over the years. Today, Nevada is tasked with
funding over 78% of the state-run OSHA program.
Despite this funding disparity, however, the State of Nevada
remains committed to continuing its state-run program with
conscientious adherence to recent federal recommendations and a
commitment to our continued partnership with federal OSHA to ensure
that Nevada's safety standards exceed that of federal standards.
I affirm my strong commitment to worker safety in Nevada and
believe that our workers' safety can best be ensured by a plan that is
developed and managed at the state level, adhering to and exceeding
federal standards, rather than one designed and operated from
Washington.
I appreciate the House Education and Labor Committee taking the
time to ensure that Nevadans are kept safe in the workplace, and for
allowing me to submit this testimony for the record. I look forward to
an ongoing dialogue and our future shared success as Nevada OSHA works
with its federal partners at OSHA to address the report's
recommendations.
______
Prepared Statement of Hon. John Ensign, U.S. Senator
From the State of Nevada
I would like to thank Chairman Miller, Ranking Member Kline, and
the members of the House Education and Labor Committee for holding this
hearing and allowing me the opportunity to submit this statement for
the record.
Ensuring the safety of Nevada's workforce is of vital importance.
As this committee is already aware, there were 25 workplace fatalities
on Las Vegas Strip construction projects between January 2008 and June
2009. I appreciate the efforts that have been made by this committee,
as well as the federal and state entities, to improve worksite safety.
In response to these tragic workplace fatalities, the Department of
Labor's Occupational Safety and Health Administration (OSHA) recently
conducted a comprehensive evaluation of Nevada OSHA's policies and
procedures, as well as case files related to the construction
fatalities, to determine whether there were systemic issues with Nevada
OSHA's oversight. The report findings contained a number of concerns on
the part of the federal investigators. Nevada OSHA has stated that it
will undertake a review of its policies and procedures to address the
findings in the report.
As you are aware, Nevada is one of 27 states that opted to develop
and operate its own job safety and health programs under a federally
approved state plan. The safety of Nevada workers is the first, last,
and only concern of my state's OSHA program. I believe that, going
forward, the recommendations and reviews by the federal OSHA officials
should be incorporated into the Nevada OSHA program. I am also pleased
to hear that Nevada OSHA was cooperative throughout the review process
and staff was available to discuss cases, policies, and procedures.
Again, I appreciate the Committee's taking the time to address such
a critical issue for my state and states across the country. I look
forward to the opportunity to continue this dialogue and to ensure that
both federal OSHA and Nevada OSHA follow through on this report's
critical recommendations for ensuring workplace safety.
______
Mr. Kline. Workplace safety is not a partisan endeavor, and
I hope we approach this issue with the recognition that a safe
workplace is good for business.
With that in mind, our efforts to promote workplace safety
should focus on enhancing what works, fostering collaboration
and emphasizing prevention to avoid the types of tragic
accidents we will hear about today.
I want to thank our witnesses and especially the family
members of those whose lives were lost on the job. I thank you
for sharing your stories so that we can take steps to prevent
other families from suffering the way you have.
With that, I know members are going to wish to be heard,
and I would yield back.
[The statement of Mr. Kline follows:]
Prepared Statement of Hon. John Kline, Senior Republican Member,
Committee on Education and Labor
Thank you Chairman Miller, and good morning.
Worker safety and health are among the most fundamental concerns of
every employer in this country. No worker wants to risk illness or
injury on the job--and no employer wants that risk either.
Recognizing that different states have different workplace needs,
the federal Occupational Safety and Health Act allows states to create
their own state-run safety and health programs, subject to federal
OSHA's approval and monitoring. Currently 22 states and jurisdictions--
including my home state of Minnesota--operate complete state plans that
cover both public and private-sector workers. Several other states have
plans that cover only public sector workers, leaving federal OSHA to
inspect the private sector in those states.
State workplace safety plans can be extremely effective. According
to the Occupational Safety and Health State Plan Association, state
plans are able to inspect more workplaces more effectively than the
federal government, are considered more flexible than federal OSHA, and
can foster safety innovation that is not always available at the
federal level.
Unfortunately, not every state plan is reaching its full potential
to enhance protections for workers. And one state plan in particular
has been found to fall far short, putting the lives of workers at risk.
We'll hear this morning from OSHA about its recent review of the
Nevada state plan. I know concerns about workplace safety are being
taken very seriously by that state's leaders, and I welcome OSHA's
efforts to identify weaknesses in Nevada's safety programs so the
necessary steps can be taken to protect workers.
I'd like to read briefly from a statement submitted by Nevada's
governor, Jim Gibbons:
``I affirm my strong commitment to worker safety in Nevada and
believe that our workers' safety can best be ensured by a plan that is
developed and managed at the state level, adhering to and exceeding
federal standards, rather than one designed and operated from
Washington.''
Governor Gibbons has put his finger squarely on our challenge. In
evaluating state OSHA systems, our goal must be to preserve the
flexibility and responsiveness of state plans--which, in many
instances, actually exceed federal safety requirements--while ensuring
adequate oversight for those plans that are not effectively protecting
workers.
Mr. Chairman, I'd request unanimous consent to have Governor
Gibbons' full statement inserted into the record, along with a
statement from Nevada Senator John Ensign.
Workplace safety is not a partisan endeavor, and I hope we approach
this issue with the recognition that a safe workplace is good for
business. With that in mind, our efforts to promote workplace safety
should focus on enhancing what works, fostering collaboration, and
emphasizing prevention to avoid the types of tragic accidents we'll
hear about today.
I want to thank our witnesses, and especially the family members of
those whose lives were lost on the job. I thank you for sharing your
story so that we can take steps to prevent other families from
suffering the way you have.
With that, I know other Members wish to be heard and we have a full
slate of witnesses, so I will yield back the balance of my time.
______
Chairman Miller. Thank you.
I would like to yield 2 minutes to Ms. Woolsey. We are
going to recognize the subcommittee chairs. But Ms. Woolsey is
not here, so she has yielded her time to Ms. Titus.
Ms. Titus is recognized for 2 minutes.
Ms. Titus. Thank you, Mr. Chairman.
Chairman Miller. Your microphone.
Ms. Titus. Excuse me.
My home state of Nevada is one of 22 U.S. states that
operate their own OSHA administration program. These state
programs are required by law to be at least as effective as
comparable federal standards.
But apparently, according to the recent report, we know
that that has not been the case in Nevada. The rules in Nevada
may be comparable to federal standards, but what is clear from
the federal OSHA special review of Nevada's OSHA enforcement
program is that Nevada OSHA has not been enforcing these
standards as well as should be the case.
Perceived undue political influence has been part of the
problem, and that must be addressed as well as staffing and
training.
Between 2003 and 2007, the construction illness and injury
rate nationally declined by 11.4 percent, but it increased by
21.4 percent in Nevada. During an 18-month period between 2006
and 2008, 12 workers were killed on the Las Vegas strip in
construction accidents.
Yet as the chairman pointed out, Nevada is well behind the
curve in vigorous targeting and enforcement of the most serious
safety violations. For example, in 2008, only 29 percent of
Nevada's violations were cited as serious. This compares to 77
percent of the federal OSHA violations that were cited as
serious the same time period.
And from January of 2008 through June of this year, Nevada
OSHA cited only one violation as willful. Nevada workers need
to know that the state and federal OSHA programs will enforce
the laws and keep our workers safe.
So I thank the chairman for holding this committee, and I
thank the majority leader, Senator Reid, for his leadership in
this area within the state.
I yield back.
Chairman Miller. Thank the gentlewoman.
Pursuant to Committee Rule 7(c), all members may submit an
opening statement in writing which will be made part of the
permanent record.
Ms. McMorris, did you want to make a statement, or do you
want to wait until after Mr. Reid, or whatever you----
Mrs. McMorris Rodgers. I can wait until after.
Chairman Miller. Whatever you are comfortable with.
Mrs. McMorris Rodgers. Well, can I go ahead?
Chairman Miller. Yes, go ahead.
Mrs. McMorris Rodgers. Thank you, Mr. Chairman. I thank you
for yielding.
I join my colleagues in thanking the witnesses for being
here today to share their personal stories and professional
expertise about the Nevada state OSHA plan.
I also want to extend my sincere condolences to those who
have lost family members in workplace accidents in Nevada and
across the nation. We appreciate your efforts to prevent others
from suffering as you have.
Workplace safety is a shared responsibility and one that
must be taken very seriously. Employers work every day to
prevent illness and injury among their workers. To do that,
they rely on and are held accountable to Occupational Safety
and Health guidelines implemented at the state level, the
federal level or both.
As we will hear today, federal OSHA has identified a number
of deficiencies in Nevada's state plan. It must be corrected
immediately. And I am pleased that state officials are
dedicating resources to improving their program.
I believe effective state plans have the potential to
significantly enhance workplace safety. State plans must meet
federal standards at a minimum, but they can also exceed
federal standards as well as allow more flexibility to address
individual workplace needs.
My home state of Washington is a state plan state. The
state plan has had many successes through various partnerships
between business and labor. For example, the Washington
Industrial Safety and Health Act requires the creation of an
advisory board consisting of both employers and employees.
This advisory board is responsible for commenting on all
policies, regulations and guidelines that affect workplace
health and safety.
The state plan recognizes the safety and health assessment
and research for prevention program that encourages a
collaborative approach to developing and testing innovative
policies.
Moreover, a safety and health grant program administered by
WISHA provides funding for safety projects supported by both
employers and employees.
While I recognize this is just one state, it illustrates
why efforts to respond to weaknesses in the Nevada system
should not disregard a model that has worked well in other
states. In fact, more than two dozen states are fully or
partially responsible for their worker safety through state
OSHA plans.
These plans have benefits that include increased
inspections, enhanced flexibility and greater access to
innovative strategies for making job sites safer.
I look forward to hearing from our witnesses about what
steps can be taken to immediately correct weaknesses in the
Nevada plan and to engage in a broader dialogue about the role
state plans can play in making our workplaces safer.
Thank you very much, Mr. Chairman, and I yield back.
Chairman Miller. Thank you.
It is my honor to recognize the majority leader of the
United States Senate, Harry Reid. Thank you for coming over to
testify.
Mr. Reid, before he was in the Senate, was my colleague
in--our colleague in the House of Representatives and is no
stranger to this issue of workplace health and safety, both
from a personal point of view but also from a public policy
point of view, where he has been unrelenting in his efforts to
create a safer and healthier workplace for workers.
And we look forward to your testimony. Thank you for
joining the committee. And, Senator Reid, proceed in the manner
in which you are most comfortable.
STATEMENT OF HON. HARRY REID, SENIOR SENATOR OF THE STATE OF
NEVADA, U.S. SENATE MAJORITY LEADER
Senator Reid. Chairman Miller, thank you very much. It is
good to be back in the House, where I had pleasurable several
terms and want to acknowledge of all the kind things you did
for me while I was adjusting here. You were one of the senior
members, and you had been here for a couple more years than
me--and you were always very kind and thoughtful, and I
appreciate that very much.
Thank you, Member Kline. Thank you very much for being
here, and members of the committee, especially my friends Dina
Titus--and Shelley Berkley who are here.
Few, if any, states have felt the full force of this
recession as intensely as Nevada. Foreclosures in the state
lead the nation and have for some time, and unemployment there
is at an all-time high.
Because of this, much of the attention in recent weeks and
months has understandably been devoted to job security. But
that is only half the story. We must also pay attention to
safety and security on the job.
That is why I am very happy that the United States
Department of Labor's Occupational Safety and Health
Administration has reviewed, and will continue to review,
troublesome violations and other concerns in Nevada's
workplaces.
And it is why I am happy to be here today to do what I can
to give information that will make this committee determine
what the future should be.
The famous Las Vegas Strip has recently seen $32 billion in
building booms up and down the strip. At one job site, City
Center, I counted one day 28 cranes on just the one job site.
But something else was going up along with the hotels and
casinos, and that is the unnecessary deaths of construction
workers. Twelve working men and women died in just 18 months.
Those tragedies represent just under half of all of the
workplace deaths in Nevada during that period. Elsewhere in the
state, 13 other workers died equally tragic and equally
preventable deaths.
The men and women who have made Las Vegas into the fast-
growing city it is today, who have made the Las Vegas Strip the
entertainment capital of the world, are professionals who are
both capable in their respective trades and cognizant of the
dangers they face. They deserve better than Nevada OSHA's
indifference to their health and safety.
When a construction worker's day includes climbing on iron
structures hundreds of feet into the air under intense heat and
high winds, or a maintenance worker having to climb down into a
manhole, his or her job is hard enough.
That worker should not also have to worry about whether the
state agencies whose sole purpose is ensuring his or her safety
is doing their job also. But that is exactly what I am worried
about.
As you know, Nevada is one of 27 states and territories
that operate its own health and safety enforcement program.
Unfortunately, though, Nevada's OSHA failed too many times to
enforce workplace safety.
In some cases, it simply failed to act; in others, it acted
improperly or poorly. Its carelessness created an environment
that allowed dangerous conditions to persist and put Nevadans'
lives at risk.
The Federal OSHA review found many patterns of this kind of
negligence. A citation for a willful violation carries
significantly higher penalties to punish employers who flout
the law and endanger employees.
Regrettably, willful violations will happen.
But Nevada's workplace safety program discouraged these
citations, issuing only one willful violation in the 18-month
period that was reviewed.
The program also failed to cite glaring repeat violations
which would have flagged persistent problems and led to proper
remedies that could have saved lives.
For example, two men were killed at the Orleans Hotel and
Casino and a third was severely injured after they were
directed to enter a poorly ventilated grease pit filled with
toxic fumes.
It wasn't the first time the property owners had been found
responsible for similar conditions and hazards. But Nevada OSHA
did not act, terrible mistakes were repeated, and Travis
Koehler and Richard Luzier died.
I met earlier today with Travis' mother, Debi. She will
testify before you later today. She has with her a picture of
her boy.
Over a 6-year period, Nevada OSHA also consistently failed
to find and cite serious violations. Federal OSHA classified
more than three out of every four violations as serious ones,
and state plans did so for nearly half of theirs. But Nevada
OSHA reported less than one-third of their breaches as serious.
Finally, the state agency failed to notify a victim's
family that it was investigating their loved one's death in
almost half of fatalities in Nevada workplaces during the time
that OSHA had the review. This record is simply, Mr. Chairman,
unacceptable and not defensible.
Each one of these deaths is tragic. And while accidents
happen, each one could have been prevented. It is not
unreasonable to demand that the agency dedicated to worker
safety doesn't look the other way.
Federal OSHA and this committee are correct to hold the
state agency accountable for its violations of the law and the
public trust.
I will continue to support your efforts on the federal
level by directing my staff to remain in contact with the
director of Nevada OSHA. As my office did for Debi Koehler-
Fergen, who you will hear from later, I will also continue to
support any Nevadan who issues a complaint about the state
program.
I will continue to work with my colleagues in the Senate
and those here in the House to ensure federal OSHA gets the
funding it needs to ensure Americans work in safe places. And I
will not hesitate to call for further action if Nevada OSHA
fails to act on this report's recommendations.
As our economy recovers, it is not enough merely to ensure
Nevadans, and all Americans, can have a good job to go to every
morning, which not everyone has today. But we must also make
sure that they can safely come home from that job every night.
Thank you very much, Mr. Chairman.
[The statement of Senator Reid follows:]
Prepared Statement of Hon. Harry Reid, Majority Leader, U.S. Senate
Chairman Miller, Ranking Member Kline, distinguished members of the
House Education and Labor Committee: Thank you for asking me to speak
with you this morning.
Few states have felt the full force of this recession as intensely
as Nevada. Foreclosures in the state lead the nation, and unemployment
there is at an all-time high.
As a result, much of the attention in recent weeks and months has
understandably been devoted to job security. But that is only half the
story; we must also pay attention to safety and security on the job.
That is why I am pleased that the U.S. Department of Labor's
Occupational Safety and Health Administration has reviewed--and will
continue to review--troublesome violations and other concerns in
Nevada's workplaces. And it is why I am pleased that your Committee is
building upon that investigation with today's hearing.
The Las Vegas Strip recently saw a $32 billion building boom. But
something else was going up along with the hotels and casinos--the
unnecessary deaths of construction workers. Twelve of them died in just
18 months.
Those tragedies represent just under half of all of the workplace
deaths in Las Vegas during that period. Elsewhere in the city, 13 other
workers died equally tragic and equally preventable deaths.
The men and women who have made Las Vegas into the fast-growing
city it is today--and who have made the Las Vegas Strip the
entertainment hub of the world--are professionals who are both capable
in their respective trades and cognizant of the dangers they face. They
deserve better than Nevada OSHA's indifference to their health and
safety.
When a construction worker's day includes climbing an iron
structure several hundred feet into the air under intense heat and high
winds--or a maintenance worker must climb down into a manhole--his or
her job is hard enough. That worker should not also have to worry about
whether the state agency whose sole purpose is ensuring his or her
safety is doing its job, too.
But that is exactly what we are worried about. As you know, Nevada
is one of 27 states and territories that operate its own health and
safety enforcement program. Unfortunately, Nevada OSHA failed too many
times to enforce workplace safety. In some cases, it simply failed to
act; in others, it acted improperly or poorly. Its carelessness created
an environment that allowed dangerous conditions to persist, and put
Nevadans' lives at risk.
The Federal OSHA review found many patterns of this kind of
negligence. A citation for a ``willful violation'' carries
significantly higher penalties to punish employers who flout the law
and endanger employees. Regrettably, they happen. But Nevada's
workplace safety program discouraged these citations, issuing only one
willful violation in the 18-month period that was reviewed.
The program also failed to cite glaring repeat violations, which
would have flagged persistent problems and led to proper remedies that
could have saved lives. For example, two men were killed at the Orleans
Hotel and Casino, and a third was severely injured, after they were
directed to enter a poorly ventilated grease pit filled with toxic
fumes. It was not the first time the property's owners had been found
responsible for similar conditions and hazards.
But Nevada OSHA did not act, terrible mistakes were repeated, and
Travis Koehler and Richard Luzier died. Travis' mother, Debi Koehler-
Fergen, will testify before you later today.
Over a six-year period, Nevada OSHA also consistently failed to
report serious violations, doing so at a much lower rate than they
likely occurred. Federal OSHA classified more than three out of every
four violations as serious ones, and state plans did so for nearly half
of theirs. But Nevada OSHA reported less than one-third of their
breaches as serious.
Finally, the state agency failed to notify a victim's family that
it was investigating their loved one's death in almost half of the
fatalities at Nevada workplaces during the time of the OSHA review.
This record is unacceptable and indefensible. Each one of these
deaths is tragic, and while accidents happen, each one could have been
prevented. It is not unreasonable to demand that the agency dedicated
to worker safety doesn't look the other way.
Federal OSHA and this Committee are right to hold the state agency
accountable for its violations of the law and the public trust.
I will continue to support your efforts on the federal level by
directing my staff to remain in contact with the director of Nevada
OSHA. As my office did for Debi Koehler-Fergen, I will also continue to
support any Nevadan who issues a complaint about the state program.
I will continue to work with my colleagues in the Senate, and those
here in the House, to ensure Federal OSHA gets the funding it needs to
ensure American workers' safety. And I will not hesitate to call for
further action if Nevada OSHA fails to act on this report's
recommendations.
As our economy recovers, it is not enough merely to ensure
Nevadans, and all Americans, can have a good job to go to every
morning. We must also make sure they can safely come home from that job
every night.
______
Chairman Miller. Thank you very much. Thank you very much,
Leader Reid, and thank you for taking your time to come over
here. I thank you for extending the offer of your resources of
your office to help us as we continue to pursue this matter.
Clearly, Nevada OSHA has to be fixed. It has to have
additional resources. But as we will hear later today, there
are other state agencies that raise serious questions.
And I think we also look favorably upon the offer of
Congresswoman McMorris Rodgers that we look to other state
agencies that are succeeding to see what those models that
might be adopted to help those states secure that safe
workplace.
I know you have a very busy schedule, and we had an
arrangement. I would say if there is a member of the committee
that has a burning question, we will give you an opportunity to
ask that of Senator Reid, but if not, we will let him return to
the business at the Senate, which has confounded me my entire
career here.
But you somehow seem to have mastered it. Thank you so very
much.
I also want to recognize that we have been joined by
Congresswoman Shelley Berkley of Nevada, who has been following
and working with our staff on these investigations throughout
our time doing this.
I would like to now call the next panel up to the witness
table, if I might. And I will introduce them as they are taking
their seat.
Mr. Jordan Barab is the acting assistant secretary for
Occupational Health and Safety Administration. He formerly
served as senior labor policy advisor on this committee, worked
as a health and safety specialist for the U.S. Chemical Safety
Board, and served as special assistant to the OSHA
administrator.
Prior to his government service, he was director of health
and safety at the American Federation of State, County, and
Municipal Employees.
Mr. Donald Jayne is the administrator of the division of
industrial relations, Department Business and Industry for the
State of Nevada. His division handles health and safety
regulation, workers compensation and training.
He has served as general manager of the State Industrial
Insurance System in Carson City, and most recently is the
principal of Jayne & Associates. Mr. Jayne is accompanied by
Mr. Stephen Coffield, who is the chief administrative officer
to the Nevada OSHA. Mr. Coffield will be available to answer
questions directly or to assist Mr. Jayne in answering
questions.
Ms. Deborah Koehler-Fergen is a resident of Las Vegas. She
is the mother of Travis Koehler, who died in a preventable
confined space accident at the Orleans Hotel in February 2008.
She filed a complaint with the federal OSHA about Nevada's OSHA
decision to downgrade the citation against Boyd Gaming.
As the mother of a worker killed on the job, she has made
it her mission to raise awareness of the need for better
workplace safety, and we thank her for traveling across the
country to be with us here today.
Dr. Frank Mirer is a professor of environmental
occupational health at the Urban Public Health Program at
Hunter College at the City University of New York, and
previously served as director of the UAW health and safety
department.
He served as chair of the Michigan Health and Safety
Advisory Committee to Michigan OSHA and worked extensively on
enforcement policies and issues related to the Michigan plan.
Welcome to the committee. Thank you all for taking your
time to be with us today and to lend us your expertise and your
experience.
Some of you know, but some of you are new to testifying, in
front of you are little consoles there. When you begin to
speak, a green light will go on. You will have 5 minutes for
your remarks.
At 4 minutes an orange light will come on that suggests you
might want to consider wrapping up your remarks. But we want
you to finish your remarks in a coherent and a manner in which
you are comfortable. And then a red light will go on which
suggests that you should wrap up.
And we will go through the entire panel, and then we will
open it up for questions from the chair and the members of the
committee.
So with that, Jordan, we will begin with you. Welcome to
the committee. We need to put on a microphone.
STATEMENT OF JORDAN BARAB, ACTING ASSISTANT SECRETARY,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT
OF LABOR
Mr. Barab. Thank you, Mr. Chairman, Ranking Member Kline
and members of the committee.
Thank you for the opportunity to testify on the
Occupational Safety and Health Administration's state plan
program and recent investigation of the Nevada state plan.
Section 18 of the Occupational Safety and Health Act allows
states to operate and enforce their own safety and health
programs. Currently 25 states and two territories have state
plans that deliver the OSHA program to 40 percent of the
nation's workplaces.
State plan standards and enforcement must be ``at least as
effective'' as federal OSHA. In addition, the state plans
operate under authority of state law, not delegated federal
authority. States must also provide at least 50 percent of the
funding for state OSHA plans.
There are a number of advantages to state plans. They add
resources to the federal program which would not otherwise be
available. They cover state and local government employees who
are not covered by federal OSHA. And they have the flexibility
to deal with workplace hazards that are sometimes not addressed
by federal OSHA.
For example, California recently issued standards for heat
stress, airborne diseases and popcorn lung, a disease
associated with exposure to the flavoring chemical diacetyl.
As valuable as the state efforts are, however, federal OSHA
is required to maintain effective oversight of state plans to
ensure that all workers in America are protected.
Nevada has operated a state plan since 1974. A high number
of well-publicized construction-related fatalities on the Las
Vegas Strip in 2007 and 2008 raised a number of serious
questions about the operation of Nevada's OSHA program.
As a result of these fatalities and a number of complaints
filed against the state plan, I commissioned a federal OSHA
task force to conduct a thorough evaluation of the Nevada state
plan.
The review took several weeks and evaluated 23 of Nevada
OSHA's fatalities that occurred between January 2008 and June
2009. Nevada OSHA fully cooperated with our investigation,
providing all the records that we needed.
For this study, federal OSHA identified a number of serious
concerns about the Nevada plan. Even though the files examined
were primarily cases involving the death of workers, only one
willful citation was issued and later reduced. Willful
violations are those the employer intentionally and knowingly
commits, and they carry the highest penalties.
Hazards identified during inspections were not addressed in
citations. In almost one-half of the fatality cases reviewed
the state failed to notify families of deceased workers that it
was investigating the death of a loved one.
Nevada OSHA did not have procedures to assure that hazards
found during inspections were abated by the employer.
Inspectors were not properly trained about the hazards of
construction work, despite the high level of construction
activity and construction-related fatalities in the state.
In 91 percent of the fatality cases reviewed, information
from employer injury and illness logs was not obtained by
inspectors. This by no means is an exhaustive list of the
deficiencies we discovered. I have provided the committee with
a copy of the report so you can read the complete findings.
[The information follows:]
U.S. Department of Labor--Occupational Safety and Health Administration
Review of the Nevada Occupational Safety and Health Program
executive summary
From January 1, 2008, through June 1, 2009, Nevada experienced 25
workplace fatalities which were investigated by the Nevada Occupational
Safety and Health Administration (Nevada OSHA). In addition, the U.S.
Department of Labor, Occupational Safety and Health Administration
(OSHA) received two complaints (formally known as Complaint About State
Program Administration [CASPA]) \1\ regarding a fatality investigation
at The Orleans Hotel and Casino, Las Vegas, Nevada, and a complaint
inspection at the Luxor Hotel and Casino, Las Vegas, Nevada. To address
rising concerns, Federal OSHA conducted this special study to review
critical elements of the Nevada OSHA program. This report summarizes
the study findings where there are recommendations for improvements.
---------------------------------------------------------------------------
\1\ Anyone finding inadequacies or other problems in the
administration of a state's program may file a Complaint About State
Program Administration (CASPA) with the appropriate OSHA Regional
Administrator. OSHA investigates all such complaints, and where
complaints are found to be valid, requires appropriate corrective
action on the part of the state. The identities of individuals who file
CASPAs are kept confidential.
---------------------------------------------------------------------------
Section 18 of the Occupational Safety and Health Act of 1970
encourages states to develop and operate their own job safety and
health programs. Federal OSHA approves and monitors State plans and
provides up to 50 percent of an approved plan's operating costs. Nevada
is one of 27 states and American territories approved to operate its
own safety and health enforcement program. Among other things, states
that develop these plans must adopt standards and conduct inspections
to enforce those standards.\2\
---------------------------------------------------------------------------
\2\ Federal OSHA approves and monitors state plans and provides up
to 50 percent of an approved plan's operating costs. To obtain federal
approval, states must meet a number of criteria:
Set job safety and health standards that are ``at least as
effective as'' comparable federal standards.
Conduct inspections to enforce its standards.
Cover public (state and local government) employees.
Operate occupational safety and health training and
education programs.
Provide free on-site consultation to help employers
identify and correct workplace hazards.
Such states also have the option to promulgate standards covering
hazards not addressed by federal standards.
---------------------------------------------------------------------------
study methodology
This study concentrated on identifying areas needing improvement. A
review of the Nevada OSHA workplace safety and health program was
conducted from July 22, 2009 to August 6, 2009. Twenty-three (23)
fatality inspection case files were evaluated. In addition, eight cases
with current penalties in excess of $15,000 were identified and five of
the eight were evaluated. (The initial criterion was to look at
additional cases with final penalties in excess of $45,000, but there
were no such cases, so the penalty threshold for the additional cases
was reduced to $15,000.) All cases occurred from January 1, 2008,
through June 1, 2009.
In addition to reviewing the above cited case files, the study team
focused on reviewing data gathered from all Nevada OSHA inspections
conducted from January 1, 2008--June 1, 2009, including general
statistical information, complaint processing, and inspection
targeting. Nevada data as contained in the Integrated Management
Information System (IMIS), OSHA's database system used by the State to
administer its program and by the State and OSHA to monitor the
program, was examined. Compliance with legislative requirements
regarding contact with families of fatality victims, training, and
personnel retention was assessed.
Throughout the entire process, Nevada OSHA was cooperative, shared
information and ensured staff was available to discuss cases, policies,
and procedures. Also, Nevada OSHA staff members were eager to work with
the evaluation team.
findings
Highlights of the study findings are as follows:
Only one willful violation was issued during the period
reviewed, however, the violation was reclassified during settlement.
Willful violations carry significantly higher penalties. (See IV-4, VI-
2)
Willful violations were discouraged because of the lack of
management and legal counsel support. (Willful violations are those the
employer intentionally and knowingly commits or a violation that the
employer commits with plain indifference to the law and carry the
highest penalties allowed under the law). Violations that should have
been further evaluated as potential willful violations were identified
during the study. In one case, there were multiple repeat violations
for trenching violations within a 12-month span of time, however no
indication willful violations were considered. (See I-5, II-1)
Clearly supportable repeat violations were not cited. In
the Orleans Hotel and Casino case (the subject of one of the two
Complaints About State Plan Administration State Programs [CASPA])
Nevada OSHA issued serious rather than willful or repeat citations even
though the owner/operator of this hotel had been previously cited for
substantially similar conditions/hazards at other properties. (See II-
7)
In 17 percent of the fatality cases reviewed, hazards that
were identified during inspections were not addressed in citations, a
notice of violation or a letter to the employer. (See I-10)
Union representatives were not notified of inspections and
provided an opportunity to participate in opening conferences, closing
conferences and informal conferences. (See I-6, I-7)
During inspections, Nevada OSHA investigators issued
Notice of Violations instead of citations for alleged other--than-
serious violations. Had these Notice of Violations been reviewed by a
supervisor, they may have been characterized as serious. (See I-11)
In the Luxor Hotel Case (the subject of the second CASPA),
the Nevada OSHA investigator did not speak with employees to determine
exposure to the alleged hazard. Therefore, the inspector was unable to
determine that employees were exposed to a hazard. Additionally, worker
representatives (unions) were not present and were not interviewed
during this inspection. Their statements may have revealed recent
worker exposures and thus confirmed the violation.
In almost half of the fatality cases reviewed, the state
failed to notify the families of deceased workers that it was
investigating the death of their loved one. Thus, these family members
were never given an opportunity to talk with investigators about the
circumstances of the fatality. Family members may provide information
pertinent to the case. (See I-3, VIII-1)
Nevada OSHA did not assure that hazards were abated
(corrected) by the employer after they were identified. Nevada OSHA
lacked procedures to identify cases requiring follow-up inspections, to
track abatements, and to ensure that companies were abating hazards
that were cited during inspections. Employers are required to submit
abatement information for all violations cited unless the violation was
corrected on site (Abatement verification). Abatement is the correction
of the safety or health hazard/violation that led to an OSHA citation.
Interviews with Agency supervisors and investigators indicated that
there was no clear policy conveyed indicating what employers were
required to submit for abatement. Additionally, case file reviews
indicated that in three cases, inadequate abatement documentation was
received by Nevada OSHA and accepted as adequate. (See IV-5, V-4, VI-6)
Nevada OSHA investigators were not properly trained on the
hazards in construction work. There was limited hazard recognition
demonstrated, with few hazards identified in the construction industry
where the majority of fatalities has occurred. In addition, it was
determined that some long time employees have not taken some of the
basic courses that investigators should take. (See IV-6, X-1)
This report reviewed IMIS data for the 2,117 programmed or
planned inspections conducted by the state and found the percent of
programmed inspections with serious violations to be extremely low.
(Planned or programmed inspections of worksites are those that have
been scheduled based upon objective or neutral selection criteria. The
worksites are selected according to state scheduling plans for safety
and health or special emphasis programs.) Overall, Nevada has
experienced a high number of in-compliance programmed inspections--that
is, inspections that do not result in hazards identified or citations
being issued. The high rate of in-compliance inspections and low
percentage of ``serious'' violations clearly show that the Nevada OSHA
Inspection Targeting System is not targeting locations where serious
hazards are occurring and a need for an improved targeting system and/
or additional construction hazard recognition training for
investigators. (For safety violations, Nevada's average of programmed
inspections with serious violations was 26% compared with 79% for
Federal OSHA) (IV-1, VII-4)
Case files were not organized in a uniform manner to
reduce the possibility of important case documentation being lost or
misplaced. (See I-1, VI-1)
No documentation showed that Nevada OSHA informed workers
of their legal protection against discrimination for making a complaint
about workplace hazards. Workers were also not informed of their right
to talk with the OSHA inspector without fear of retaliation. (See II-3)
In 91% of the fatality case files reviewed, information
from injury and illness logs was not obtained from employers. Without
this information, it is difficult for a supervisor to determine whether
the inspection should have been expanded. (See I-9)
Nevada OSHA is not maintaining all of its enforcement data
in the IMIS and not using it to run reports. The information is
therefore not available to assist the state to track and evaluate the
results of its enforcement efforts and better prepare investigators for
conducting inspections. (See III-1, III-2, III-3, VI-3)
Nevada OSHA agreed to conduct 2900 inspections as part of
its budgeting process, which translates to 95 to 115 inspections per
year per investigator, far too many per investigator to do a thorough
job. The Nevada legislature utilizes this information to determine if
the program is meeting its goals. (See IV-2, VII-5)
Nevada OSHA groups violations based on the location of the
standards being cited in the code of state regulations rather than by
the individual hazardous conditions. (See IV-3, VI-5)
Employee contact information was not obtained for
employees interviewed and exposed to hazards. (See I-8, V-3, VI-4)
key recommendations
This study resulted in a number of recommendations for improvement.
Highlights of these recommendations are listed below.
Nevada OSHA should:
Conduct an internal review of their willful citation
policies and practices. Then take corrective action to fully document
willful violations, so such citations can be issued and successfully
sustained or affirmed. (See IV-4, VI-2)
Work with legal counsel to develop training to improve the
development of legally sufficient cases and increase the pursuit of
willful violations. The training should be specific to Nevada OSHA and
should address what is required by the State Review Board to sustain a
willful violation. With this training, the Nevada OSHA cases containing
willful violations should be legally sufficient and sustainable by the
Review Board. (See I-5, II-1)
Review its procedures and consider evaluating potentially
repeat violations with the assistance of legal counsel. (See II-7)
Ensure that hazards identified during complaint
inspections are addressed with the employer through citation,
notification of violation or some other method. Case files must be
reviewed more thoroughly, including review of photographs for hazards
not identified or addressed by the investigators. (See I-10, V-5)
Review all available IMIS data reports and track the most
frequently cited standards to determine what additional training on
such things as hazard recognition and case file documentation is
necessary to increase the breadth of standards cited and the
classification of such violations. Special emphasis should be placed on
construction hazards in an effort to improve hazard recognition which
will result in employees being removed from hazard. This should be done
for the agency as a whole as well as for each individual compliance
officer. (See I-10)
Adhere to current Nevada OSHA procedures and ensure that
union representatives are notified of inspections and provided an
opportunity to participate in opening conferences, closing conferences
and informal conferences. Union representatives should be informed that
they must request copies of citations, or no copy will be sent to them.
(See I-6, I-7)
Review the policy and practice of issuing Notice of
Violations on-site during inspections, with an emphasis on ensuring
complete and accurate documentation, classification of hazards, and
confirmation of abatements. (See I-11,V-4)
Comply with Nevada OSHA's established procedures, and the
new Nevada Senate Bill 288, requirement to contact families of victims
soon after the initiation of the investigation and provide the families
with timely and accurate information at all stages of the
investigation. (See I-3, VIII-1)
Ensure that adequate abatement is obtained for all
complaint items found valid, regardless of being handled via an inquiry
or an inspection. Review the abatement verification policy with all
supervisors and investigators to ensure the supporting information and
documentation required for abatement verification are present in the
case files. (See IV-5, V-4, VI-6, X-1, X-2)
Provide additional training to involved staff as well as
each investigator with special emphasis on construction hazards. (See
IV-6)
Target high hazard industries for inspections. Perform an
evaluation of the effectiveness of active targeting programs. Once the
evaluation is complete make any necessary changes to more effectively
target high hazard industries and facilities. (See IV-1, VII-4)
Provide clear guidance to all enforcement personnel on the
organization of case files. Correspondence should not be filed
throughout the investigative file but in one specific location in the
file. This approach will help ensure all necessary correspondence is
sent to employers, employees and family members of victims. The files
should also be contained in file folders which will help ensure that
all correspondence and investigation materials are maintained in the
file. (See I-1, VI-1)
Follow established complaint procedures to ensure all
complainants are provided information about their rights and asked to
provide their name, address and phone number. Discrimination rights
must be communicated to the complainants when they call and file a
complaint even if they do not allege discrimination at the time of the
call. (See II-3)
Reconcile the differences in procedure between Nevada and
OSHA. Particular attention should be paid to obtaining injury and
illness log information during inspections. Once those differences have
been reconciled, employees must be trained on current policy and be
provided copies of current policy documents. (See I-9)
Ensure that the IMIS system is kept up-to-date, is
accurate, and is used by Nevada OSHA to run reports that will assist
with management oversight of enforcement efforts and CSHOs in preparing
for inspections. (See III-1, III-2, III-3, VI-3)
Work with the Nevada legislature to utilize more outcome
measures to evaluate the effectiveness of the program. Educate the
legislature on the importance of quality inspections versus a large
quantity of inspections. (See IV-2, VII-5)
Review its current citation grouping policies and
procedures and issue citations in accordance with its Nevada Operations
Manual (NOM). (See IV-3, VI-5)
Obtain employee contact information for all employees
interviewed and exposed to hazards. This information will provide
accessibility to witnesses for contested cases and it will also ensure
information is maintained in the event a discrimination complaint is
filed. (See I-8, V-3, VI-4)
summary of the state's response
OSHA Region IX provided a draft of this report to the Administrator
of the Department of Business and Industry, Division of Industrial
Relations, Occupational Safety and Health Administration (Nevada OSHA).
The Administrator provided written comments which are reproduced in
their entirety in Appendix B.
Nevada OSHA is under new leadership with a new Chief Administrative
Officer and an Administrator of the Nevada Division of Industrial
Relations/Nevada State Plan Designee. Although the Administrator
pointed out differences in the nature of the monitoring completed
during the review conducted in July and August and previous years, his
response committed the Nevada OSHA management team to resolving ``both
the real and perceived problems with Nevada's OSHA program.''
The Nevada OSHA leadership and staff are committed to resolving the
deficiencies identified in this report. While this report focuses on
areas in need of improvement, it provides an independent review of
critical elements of the Nevada OSHA program that will aid management
in developing and implementing action plans. Nevada OSHA is developing
action plans and making programmatic changes that will allow the state
to implement the recommendations outlined in this report. The goal of
Nevada OSHA is to revitalize the staff, mend fences with Federal OSHA,
restore public confidence in the agency and perform thorough, legally
sufficient inspections that will be sustained throughout the review
process. Nevada OSHA is committed to enhancing its operations so that
it is better prepared to address the worker safety and health concerns
in the State of Nevada.
______
[The complete report may be accessed at the following
Internet address:]
http://www.osha.gov/dcsp/final-nevada-report.pdf
------
Mr. Barab. I also want to take a moment to clarify that the
problems we identified at Nevada OSHA were systemic problems in
the management of the agency. We are not casting blame on the
efforts of the dedicated staff who are devoting their lives to
ensuring safe workplaces for Nevada workers.
The report also includes a number of recommendations for
improvement. For example, Nevada OSHA should work with counsel
to train inspectors to develop legally sufficient cases, review
case files more thoroughly to find hazards not initially
identified, contact families of victims soon after the
initiation of an inspection, ensure adequate abatement of all
hazards found during complaint inspections, and provide staff
with additional training on construction hazards.
As a result of the deficiencies identified in Nevada OSHA's
program and as a result of the administration's goal to move
from reaction to prevention, I have notified the state plans
that we will be implementing a number of changes to strengthen
the oversight, monitoring and evaluation of state programs.
I sent interim guidance to OSHA's 10 regional
administrators in August, encouraging more extensive
investigation of potential problems.
I also told the regional evaluators to maintain more
frequent direct contact with the states they oversee and to
keep abreast of state legislative developments, major incidents
and local initiatives.
In addition, to ensure that similar deficiencies do not
exist in any of the other state plans, federal OSHA will
conduct evaluations similar to what we conducted in Nevada for
every state that administers its own program.
These evaluations will assist federal OSHA in improving its
monitoring system and lead to better program performance and
consistency throughout all state plans.
We will involve states in the development of the revised
monitoring procedures. OSHA is emphasizing to our state
partners that we are not trying to change the nature of the
relationship between federal and state OSHA, but we do need to
speak with one voice and assure American workers that they will
receive adequate protection, regardless of the state in which
they work.
However, if Nevada or any other state where problems are
identified fails to make the necessary improvements in a timely
manner, OSHA could reassert concurrent federal jurisdiction.
Beyond that, withdrawal of a state plan would be the
appropriate sanction when major and pervasive deficiencies are
present and the state does not correct them.
Mr. Chairman, I appreciate your work today in shining a
spotlight on what has been an obvious gap in the protection of
our workforce. Thank you again for this opportunity to discuss
the OSHA state plan program and our study of the Nevada state
plan.
I look forward to your questions.
[The statement of Mr. Barab follows:]
Prepared Statement of Hon. Jordan Barab, Acting Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor
Mr. Chairman, Members of the Committee: Thank you for the
opportunity to testify today and to discuss the Occupational Safety and
Health Administration's (OSHA's) partnership with the States that have
chosen to operate OSHA-approved plans, with particular attention to the
Nevada OSHA program. When Congress enacted the Occupational Safety and
Health Act of 1970 it created an opportunity for Federal-State
partnerships to promote safety and health. Section 18 of the law allows
states to develop and enforce occupational safety and health standards
in the context of an OSHA-approved State Plan. Twenty-seven (27) States
and territories have sought and obtained Plan approval--21 States and
Puerto Rico have complete programs covering both the private sector and
State and local governments; four States and the Virgin Islands have
programs limited in coverage to public sector employees. Currently, the
State Plans deliver the OSHA program to 40% of the nation's workplaces,
with Federal OSHA responsible for the other 60%. Most of the State
Plans were approved in the 1970's, although just last month OSHA
approved a new Public Employee-Only State Plan in Illinois. In this
testimony, I will provide a brief overview of the State Plan program,
and then discuss the Nevada program, and OSHA's recent investigation of
it, in more depth.
State Plan standards and enforcement must be ``at least as
effective'' as Federal OSHA in providing safe and healthful employment
to workers in the state. In addition, the State Plans operate under
authority of State law--not delegated Federal authority. Thus, in order
to operate a State Plan, a State must enact a State equivalent of the
OSH Act and must use State administrative and regulatory procedures to
adopt its own standards, regulations, and operating procedures, all of
which it must update within six months of any change in the Federal
program.
In order to assure the States' continuing commitment to their OSHA
programs while allowing them the flexibility to improve those programs,
the OSH Act requires the States to provide at least 50% of the funding
for state OSHA plans, with Federal OSHA allowed to fund no more than
50% of their costs. In recent years, however, appropriations for State
Plans have not kept pace with either inflation or even increases in
funding for Federal enforcement. In fact, there has been no significant
increase in OSHA State Plan grants for the past seven years, even
though overall OSHA funding has gone up by more than 20% during that
period. This has forced most States to contribute additional funding to
their State Plans that is not matched by Federal OSHA.
In FY 2009, for example, Federal contributions to State Plans
totaled $92,593,000. State contributions totaled $184,370,820, almost
two thirds of the full $276,963,820 cost of running the plans. Even
with this investment, many states have seen erosion in the inflation-
adjusted resources committed to their OSHA plans. As a result some
states have even had to leave compliance officer positions vacant. For
FY 2010 the President's Budget has requested nearly a 15% increase for
State Plan funding. This is intended to help restore state funding to a
more appropriate level. In addition, during FY 2009, separate grants
under the American Recovery and Reinvestment Act (ARRA) were offered
for activity associated with ARRA work. Seven states matched more than
$1,500,000 from this funding source.
Unfortunately, the FY 2010 potential funding increase for the
states comes at a time of serious fiscal crisis in State governments.
The six states that fund only 50% of their State Plans and have the
greatest need for increased resources are unlikely to be able to match
a funding increase. Those states that contribute additional funds can
be expected to match at least some of the increase but may do so by
decreasing their 100% funding.
There are a number of advantages to State Plans. They add resources
to the Federal program directed at workplace safety and health which
would not otherwise be available; they must cover their own state and
local government employees, who are not covered by Federal OSHA; they
are familiar with the mix of industries and work establishments in
their jurisdiction; and they have the flexibility to deal with
workplace hazards that are sometimes not addressed by Federal OSHA. The
states conduct more inspections and are able to reach proportionately
more workplaces than Federal OSHA. The states have also used innovative
approaches in both enforcement and standards-setting to protect their
workforce.
For example, Washington, Oregon, Vermont, and other states use
workers compensation data to target the most hazardous workplaces
within their borders. A number of states have established standards for
hazards that Federal OSHA does not regulate. California recently issued
a heat stress standard, a standard to protect workers from airborne
diseases and a standard to protect workers against ``popcorn lung,'' a
disease associated with exposure to the flavoring chemical diacetyl.
Virginia has issued a unique standard requiring that machinery used in
workplaces be operated in accordance with the manufacturer's
instructions. For almost 20 years, California has had a law requiring
all employers to establish effective injury and illness prevention
programs. Other states, including Hawaii, Nevada, Oregon, and
Washington, require similar programs or safety and health committees. A
number of states also have ``red tag'' provisions that allow them to
immediately shut down machinery or processes when they find hazards
that could cause death or serious physical harm, a provision not
available to Federal OSHA.
As valuable as the state efforts are, however, Federal OSHA has an
important role to play in assuring that State OSHA Plans are at least
as effective as the Federal program. Currently, when OSHA develops a
new program or initiative to protect workers, the states are sometimes
encouraged, and other times required, to adopt parallel state efforts.
For example, Federal OSHA recently inaugurated a National Emphasis
Program (NEP) to inspect the accuracy of the injury and illness
reporting requirements in order to prevent under-reporting. Although we
did not require the state plan states to adopt this initiative, we have
told the states that we believe that is essential that they do so
because accurate reporting is critical to an effective enforcement
program. We will re-evaluate whether we need to make this a requirement
in the near future, depending on how many states choose not to
participate. I reminded the State Plan states, when Federal OSHA
announces a National Emphasis Program, American workers and employers
expect it to be a truly National emphasis program. We plan in the
future, to make all Federal OSHA NEPs and other similar initiatives
mandatory rather than discretionary changes to the states' programs.
We also recognize that Federal OSHA needs to maintain effective
oversight of State Plans to ensure that all workers in America are
protected. Over the years, OSHA's monitoring has changed from a system
of measuring the states against Federal performance on various
indicators to a system that measures state performance against the
state's own goals. In OSHA's early years, before computers, OSHA's
evaluations were on-site and intensive. OSHA reviewed state enforcement
case files, accompanied inspectors to observe their work, and gathered
data manually. In the mid-1980s OSHA discontinued routine accompanied
visits and sample case file reviews, except as needed to research
issues. In return, the states all joined OSHA's computerized management
information system, entering data on each inspection and other activity
in the same manner as an office of Federal OSHA. Information on both
state and Federal individual inspections is available on OSHA's
website. OSHA then moved to a monitoring system that relied more on
direct statistical comparisons of state performance to Federal on many
indicators.
In the mid-1990s oversight was again reduced in response to
complaints from the states that they had been running their programs
for many years and did not need such extensive oversight, and that they
were contributing considerably more money to the program than Federal
OSHA. The result is a goal-based system whereby each state develops its
own five-year Strategic Plan and Annual Performance Plan. Each state
must develop a Strategic Plan that will include the goal of reducing
workplace injuries, illnesses and fatalities. Federal OSHA reviews each
state's performance in relation to the goals established in its
Strategic Plan in an annual Federal Annual Monitoring and Evaluation
(FAME) report. In addition, OSHA performs investigations of a
particular State Plan activity if it receives a Complaint About State
Program Administration (CASPA) or otherwise becomes aware of a problem.
Nevada has operated a State Plan since 1974. Final approval of the
Plan, which attests to its structural and operational effectiveness,
was granted by Federal OSHA in April 2000. Nevada's program contains
provisions similar to those of Federal OSHA governing such issues as
the conduct of inspections, citation procedures, handling of imminent
dangers, anti-discrimination procedures, and other worker protections.
During the 18-month period ending this past June, Nevada
experienced 25 workplace fatalities. All 25 of the worker deaths were
investigated by Nevada OSHA. During that period Federal OSHA also
received several CASPAs, regarding a confined space accident at the
Orleans Hotel that resulted in two additional fatalities. The Las Vegas
Sun published a series of articles that sharply criticized Nevada
OSHA's handling of these fatalities. As a result of these events,
Federal OSHA became aware of the problems that Nevada OSHA was facing
and offered our assistance. At first the state was reluctant to accept
OSHA's assistance in its enforcement effort, rejecting the Agency's
initial overtures but then inviting Federal inspectors onsite only to
tell them after a few weeks that they were no longer needed and
developing citations without our input. However, more recently, under
new leadership, Nevada OSHA is working closely with Federal OSHA to
improve its program.
As a result of these events, I commissioned a Federal OSHA task
force to conduct a special study of the Nevada State Plan. The review
took several weeks and evaluated twenty-three of Nevada OSHA's fatality
inspection case files. Five more cases that involved penalties to
employers of more than $15,000 were also examined. All of the cases
examined occurred between January 1, 2008, and June 1, 2009. The new
leadership at Nevada OSHA cooperated fully throughout the process,
sharing all available information.
The report on this study was released last week and, as I will
describe, the results of that study have convinced me that significant
changes must be made in how Federal OSHA conducts oversight over the
state plan programs.
Federal OSHA identified a number of serious concerns about the
Nevada Plan. For example, even though the files examined were primarily
cases involving the deaths of workers, only one repeat and one willful
violation were cited during the time period covered by the
investigation and the single willful citation was reclassified. It
appeared that Nevada OSHA avoided classifying violations as willful
because the state lacked the management and legal counsel support
necessary to uphold a willful classification. The repeat citation was
issued to an employer that had committed multiple repeat violations of
trenching operations within 12 months; yet, no willful violations
(which involve intentional and knowing violations of the law) were
issued in this case.
There were a number of cases which clearly supported the
classification of repeat violations but they were not cited as repeat.
In the Orleans Hotel case that was the subject of several CASPAs,
Nevada OSHA had issued serious, rather than repeat or willful
violations, even though the owner of the hotel where the violations
occurred had previously been cited for substantially similar conditions
at other properties.
Federal OSHA found that in seventeen percent of the fatality cases
reviewed, hazards that were identified during inspections were not
addressed in citations. In almost one-half of the fatality cases
reviewed the state failed to notify families of deceased workers that
it was investigating the death of a loved one. Thus, family members,
who can often provide pertinent information, were never provided the
opportunity to discuss the circumstances of the incident with Nevada
inspectors.
Nevada OSHA did not always assure that hazards found during
inspections were abated by the employer. The state plan lacked
procedures to identify cases requiring follow-up inspections, to track
abatements, and to ensure that employers carried out abatement. In
three cases inadequate abatement documentation received by the state
was accepted as proof that hazards had been corrected.
Our investigators also found that Nevada OSHA inspectors were not
properly trained about the hazards of construction work, a particular
concern because of the high level of construction activity and
construction-related fatalities in that state in recent years. Few
hazards were identified in the construction industry, despite the fact
that the majority of the worker fatalities had occurred in that
industry. Furthermore, in ninety-one percent of the fatality cases we
reviewed, information from employer injury and illness logs was not
obtained by inspectors. Without this information it is difficult for a
supervisor to determine whether the inspector should have expanded the
focus of the inspection beyond the circumstances of the accident to
evaluate other hazards that may have been present in the workplace.
In order to go where the problems are, state plans, like Federal
OSHA, use injury and illness rates to target problem workplaces and
avoid inspecting workplaces where there are less likely to be
violations. Nevada, however, conducted a very high number of in-
compliance inspections resulting in few serious violations. For
example, for safety inspections, Nevada's average of programmed
inspections with serious violations was 26% compared with 79% for
Federal OSHA. In other words, Nevada inspectors were either failing to
target inspections properly, failing to identify serious violations, or
failing to classify those violations appropriately.
This is not an exhaustive list of the deficiencies that we
discovered. I have provided the committee with a copy of the report so
that you can read the complete findings.
The study report includes a number of recommendations for
improvements. OSHA recommended that Nevada conduct an internal review
of its citation policies and practices. The state was told to document
willful violations more completely so that it can issue willful
citations and sustain them in the review process. OSHA also recommended
that the state work with legal counsel to train its inspectors to
develop legally sufficient cases.
OSHA advised the state to ensure that all hazards identified during
inspections are addressed with the employer through a citation,
notification of violation, or some other method. Case files should be
reviewed more thoroughly by supervisors, including review of
photographs, to find hazards not initially identified.
OSHA strongly recommended that Nevada OSHA comply with existing
state procedures and new legislation to contact families of victims
soon after initiation of an inspection. OSHA recommended that the state
ensure adequate abatement of all hazards found during complaint
inspections as well as review its abatement verification policies to
ensure that all necessary documentation required for abatement
verification is included in the case files. OSHA also recommended that
the state provide its staff with additional training on construction
hazards. The complete list of our recommendations is included in the
report. Nevada OSHA will provide us with a Plan of Action that will lay
out a schedule for addressing the recommendations.
I also want to take a moment to clarify that the problems we
identified at Nevada OSHA were systemic problems in the management of
the agency and that we are not casting any blame on the efforts of the
dedicated inspectors and other staff of Nevada OSHA who are devoting
their lives to ensuring that workers are provided with a safe
workplace.
As a result of the deficiencies identified in Nevada OSHA's program
and as a result of this Administration's goal to move from reaction to
prevention, I have notified the State Plans that we will be announcing
a number of enhancements and changes in order to strengthen the
oversight, monitoring and evaluation of state programs. In order to
improve oversight immediately, I sent interim guidance to each of
OSHA's ten Regional Administrators in August reminding them of the wide
range of monitoring tools currently available to them and encouraging
more extensive investigation of potential problems as part of our
monitoring procedures for all State Plans. For example, analysis of
data on State performance in a particular program area, for example
inspections, need not be limited to one measure, such as the number of
inspections, but should include any other relevant information, such as
information on the effectiveness of the state's overall training
program for its compliance staff. We asked our regional evaluators to
maintain more frequent direct communication with the states they
oversee and to keep abreast of state legislative developments, major
incidents, and local initiatives. At least two of the four quarterly
meetings between Federal OSHA representatives and State Plan
administrators per year will now be conducted in person.
I have also announced that we will be conducting more special
studies in response to information or data noted through routine
monitoring, significant events, changes in a State Plan, media reports
or CASPAs. CASPAs can be filed with OSHA regional offices by anyone who
believes there are inadequacies in a State Program. The complaint may
be submitted orally or in writing and the complainant's name may be
kept confidential. OSHA investigates all such complaints. If the
complaint is found to be valid, Federal OSHA will require corrective
action by the state.
CASPAs will be taken much more seriously in this Administration,
with the investigation determining not just whether the State followed
its own policies but also whether the State's policies and procedures
are at least as effective as those of Federal OSHA. Finally, when
OSHA's monitors find that the outcome in a specific inspection or
discrimination investigation is flawed, the State will be asked to take
action to correct the outcome whenever possible, as well as to make
procedural changes to prevent recurrence.
In addition, to ensure that deficiencies similar to those found in
Nevada do not exist in any of the other State Plans I have announced
that OSHA will conduct Baseline Special Evaluation Studies for every
state that administers its own program. These studies will also assist
Federal OSHA in considering permanent changes in its monitoring system
by identifying the most effective monitoring techniques.
These baseline studies will provide a better performance assessment
for the FY 2009 FAME reports. The FAME reports are prepared by our
Regional Offices on a fiscal year basis and issued the following
spring. The problems we found in the Nevada program, which should have
been revealed earlier during monitoring, made us realize that the
current FAME reports are not adequate and need to be enhanced to be
more comprehensive and address all significant issues. The baseline
studies that the Regions will be conducting will be included in the FY
2009 ``Enhanced'' FAME reports.
We intend for these baseline studies to lead to better program
performance and consistency throughout all State Plans. Using the
results of these studies, federal OSHA will commence an overall review
of our current oversight policies. These studies will give us a better
idea of how best to permanently revise our current monitoring
procedures. We will involve the states in the development of the
revised monitoring procedures or changes in performance measures by
working closely with the Occupational Safety and Health State Plan
Association (OSHSPA). OSHSPA was founded in the late 1970s and
represents the 27 states and U.S. territories that run their own
occupational safety and health programs. The Association serves as the
link between the State Plans and Federal OSHA. It has been an important
mechanism for resolving controversies and negotiating policy consensus.
OSHA is emphasizing to our state partners that we are not trying to
change the nature of the relationship between Federal and State OSHA
but that we do need to speak with one voice and we need to assure
American workers that they will receive adequate protection regardless
of the state in which they work.
Overall the Federal-State partnership established by the OSH Act
has successfully protected American workers. There have been times,
however, when a state has failed to protect one or more segments of its
workforce and Federal OSHA has had to apply corrective measures. During
1991-92 after a devastating fire at a chicken processing plant in North
Carolina that resulted in 25 deaths, OSHA re-examined its relationship
with North Carolina's OSHA program. Federal OSHA reasserted concurrent
enforcement authority in the state by responding to all complaints of
workplace hazards and referrals from other agencies. A staff comprised
of OSHA inspectors and monitors worked closely with the state to
institute improvements in its enforcement program until primary
responsibility for enforcement was returned to North Carolina in March
1995. By then the state had made significant modifications to its
program, including increases in funding and staffing. Similar action by
Federal OSHA would be possible in Nevada, through suspension of its
final approval status and reassertion of concurrent Federal
jurisdiction. Beyond that, withdrawal of a State Plan's approval, which
is a long and complex process, is the ultimate sanction when major and
pervasive deficiencies are present and the state is not making an
appropriate effort to correct them. I want to emphasize, however, that
because of the cooperative attitude of the new leadership of Nevada
OSHA, which has shown concern for the problems we have pointed out and
has worked cooperatively with OSHA to identify deficiencies, we do not
expect either of these actions will be necessary.
However, if Nevada or any other state where problems are identified
fails to make the necessary improvements in a timely manner, OSHA will
persist in monitoring and recommending changes. Failure to provide
protection at least as effective as the Federal program could result in
reconsideration of a state's final approval status and the
reinstitution of concurrent Federal enforcement jurisdiction.
Ultimately, it might result in action to withdraw approval of the Plan.
Mr. Chairman, over the years this Committee has played a key role
in holding OSHA's feet to the fire when it comes to issues such as
refinery explosions, combustible dust, and other dangers. I appreciate
your work now in shining a spotlight on what has been an obvious gap in
the protection of a portion of our workforce. I look forward to working
with you to remedy this problem. In order to safeguard the nation's
workers we need as much information and insight as possible from a
variety of sources. You have served the workforce in Nevada and this
country well by providing a forum for OSHA and others to point out
areas for improvement. Thank you again for this opportunity to discuss
the OSHA State Plan Program and our study of the Nevada State Plan. I
look forward to your questions.
______
Chairman Miller. Thank you.
Mr. Jayne, welcome.
STATEMENT OF DONALD E. JAYNE, ADMINISTRATOR, DIVISION OF
INDUSTRIAL RELATIONS, STATE OF NEVADA DEPARTMENT OF BUSINESS
AND INDUSTRY; ACCOMPANIED BY STEVE COFFIELD, CHIEF
ADMINISTRATIVE OFFICER, NEVADA OSHA
Mr. Jayne. Thank you. Good morning, Chairman Miller,
Ranking Member Kline, Congresswoman Titus, Congresswoman
Berkley and distinguished committee members. I appreciate the
opportunity to speak with you today about Nevada's Occupational
Safety and Health Program.
My name is Donald Jayne. I am the administrator for
Nevada's Division of Insurance. I was appointed to that post in
March of 2009. I have with me today the newly appointed chief
administrative officer for Nevada OSHA, Mr. Stephen Coffield,
to my left.
We are pleased to be here today to answer your questions
about the federal OSHA's review of the Nevada Occupational
Safety and Health Program. This report is a product of a
special study by federal OSHA and it is first, as I understand,
in a series of special reports as outlined by Jordan.
When I was asked if I would agree to have Nevada be the
first of the state plans to be evaluated, I said yes. My reason
was simple. I wanted to know what was and what was not working.
Now I know. I know that Nevada OSHA needs work, quite a bit
of work. But I am here to tell you that Nevada OSHA is not a
wreck. The program should not be junked. It needs to be
repaired and it needs to be properly maintained.
In moving forward, we should not forget the people who work
for Nevada OSHA. Like employees of federal OSHA and other state
plans, our employees are committed to enforcing occupational
safety and health standards.
In many ways, OSHA is similar to the highway patrol. We are
the cops. We are the enforcement officers. We enforce the laws
and we investigate tragic accidents. We don't blame cops for
tragic accidents, and we should not blame OSHA enforcement
officers either.
We should keep in mind that the primary responsibility for
occupational safety and health rests with employers. If an
employer fails in its responsibility, we, like the highway
patrol, should issue a citation that carries an appropriate
fine.
But I am not here today to talk about fines. I am here
today to talk about Nevada OSHA's response to the federal OSHA
study. After reviewing the report and considering the testimony
that preceded me, you may wonder how I can be so sure that
Nevada OSHA can be salvaged.
My answer is simple. I have confidence in Mr. Coffield and
the enforcement professionals that we have in Nevada to do
their job with the proper leadership that we have talked about.
We have got dedicated employees who are dedicated to reducing
work-related accidents, illness and fatalities. Therefore, as
part of Nevada's new leadership, I know that OSHA will improve.
Thus, my opening comments and my answers to your questions
may be more positive than you expect. I believe that the
issuance of the federal OSHA report marks the beginning of a
new relationship based on a shared goals--reducing injuries,
illnesses and fatalities in the workplace.
I am here today to tell you that federal OSHA and the state
plans can work together to achieve this goal. We must work
together because even one work-related death is too many. The
impact on family, loved ones, friends and fellow employees is
too great.
In Nevada, we have shared the pain of work-related
fatalities all too often. Therefore, at this time, I want to
offer my public condolences to all those who have lost someone
in a work-related accident. As I said, even one work-related
death is too many.
Federal OSHA and the state plans must do more to eliminate
fatalities. For its part, Nevada has a history of doing more.
In 1991, we developed a law requiring each employer with more
than 10 employees to establish and carry out a written safety
program.
And in 1995, Nevada OSHA was authorized to adopt standards
and procedures for safe operation of cranes.
More recently, Nevada responded to work-related fatalities
by requiring mandatory OSHA 10 and OSHA 30 training for
employees and supervisors engaged in the construction industry.
Nevada also passed S.B. 288 requiring consultation with
members of a deceased's family.
Today I am here to state on the record that Nevada OSHA is
going to address the issues raised in the federal OSHA report.
However, budgetary constraints may have adverse impacts on our
ability to address the issues quickly.
Thus, while we are committed to change, we must be mindful
of our financial limitations. Historically, Nevada has stepped
up to the plate financially. At present, the State of Nevada
contributes three-quarters of the operational cost for Nevada
OSHA.
But Nevada is not alone. Over the years, the ratio of
federal contributions have slipped, with the state plans
picking up an increasing share of the costs.
Therefore, as federal OSHA increases its oversight of state
plans, we are compelled to ask you for an equitable and
consistent formula to fund state programs. If you want state
plans to succeed, we must address the funding formula.
In my remaining time, I would like to take this opportunity
to address a couple of the issues from the federal OSHA report.
At the onset, I want to touch the willful and repeat
violations.
Here I can tell you that we are already addressing the
perception that willful violations that are discouraged. They
are not. In conjunction with this effort, we are forging a new
and effective working relationship with our enforcement
personnel and attorneys.
These actions, along with others, will ensure that the
employers who willfully or repeatedly violate OSHA standards
are issued appropriate citations.
Overall, it is my intention to enhance and strengthen the
enforcement policies and practices. Accordingly, Nevada will
develop an action plan addressing the findings and
recommendations in the federal OSHA report.
Next, I would like to say just a few words about training.
We do not take this issue lightly. Like other plans, we rely on
the OSHA Training Institute, and we--that will not change. We
will continue to send our enforcement officers, even though it
is an extremely cost deficient approach.
In the effort of time, I will move to a summary and simply
assure the committee that we are here today to accept the
recommendations, to work towards correcting the
recommendations, and to be visible and answer the questions
that the committee may have.
Thank you for your time.
[The statement of Mr. Jayne follows:]
Prepared Statement of Donald E. Jayne, Administrator, Division of
Industrial Relations, Department of Business & Industry, State of
Nevada
Good Morning. Thank you Chairman Miller, Ranking Member Kline,
Congresswoman Titus and distinguished Committee members for this
opportunity to speak with you today about Nevada's Occupational Safety
and Health Program.
My name is Donald Jayne. I am the Administrator of Nevada's
Division of Industrial Relations and the state plan designee for
Nevada's Occupational Safety and Health Program. I have with me the
newly appointed Chief Administrative Officer for Nevada OSHA, Stephen
Coffield.
We are pleased to be here today to answer your questions about
Federal OSHA's Review of the Nevada Occupational Safety and Health
Program (``Federal OSHA Report''). The report is the product of a
special study by Federal OSHA--the first in what I understand will be a
series of special studies of state plans.
When I was asked if I would agree to have Nevada OSHA be the first
of the state plans to be evaluated by a special study, I said ``yes.''
My reason was simple: I wanted to know what was, and what was not,
working.
Now I know. I know Nevada OSHA needs work. Quite a bit of work.
But, I am here to tell you Nevada OSHA is not a wreck. The program
should not be junked; it just needs to be repaired and properly
maintained. In moving forward, we should not forget about the people
who work for Nevada OSHA. Like employees of Federal OSHA and other
state plan states, our employees are committed to enforcing
occupational safety and health standards.
In many ways, Nevada OSHA is similar to the highway patrol, we are
the cops, the enforcement officers who enforce the laws and investigate
tragic accidents. We don't blame cops for tragic accidents and we
should not blame OSHA enforcement officers either. We should keep in
mind that the primary responsibility for occupational safety and health
rests on employers. If an employer fails in its responsibility, we--
like the highway patrol--will issue a citation carrying an appropriate
fine.
But I am not here today to talk about fines. I am here to discuss
Nevada OSHA's response to Federal OSHA's Report. Now, after reviewing
the report and considering the testimony preceding me you may wonder
how I can be so sure Nevada OSHA can be salvaged. My answer is simple:
I have confidence in Mr. Coffield and the Nevada OSHA employees who
have dedicated themselves to reducing work-related accidents, illness
and fatalities. Therefore, as part of Nevada's new leadership, I know
Nevada OSHA will improve.
Thus, my opening comments--and my answers to your questions--may be
more positive than you might expect.
I believe the issuance of Federal OSHA's Report marks the beginning
of a new relationship based on a shared goal--reducing injuries,
illnesses and fatalities. I am here today to tell you that Federal OSHA
and the state plans can work together to achieve this goal.
We must work together because even one work-related death is too
many. The impact on family, loved-ones, friends and fellow employees is
too great. In Nevada, we have shared the pain of work-related
fatalities all too often. Therefore, at this time, I want to offer my
public condolences to all those who have lost someone to a work-related
accident.
As I said, even one work-related death is too many. Federal OSHA
and the state plans must do more to eliminate fatalities.
For its part, Nevada has a history of doing more. In 1991, we
adopted a law requiring each employer with more than 10 employees to
establish and carry out a written safety program; and, in 1995, Nevada
OSHA was authorized to adopt standards and procedures for the safe
operation of cranes. More recently, Nevada responded to work-related
fatalities by requiring mandatory OSHA 10 & 30 hour training for
employees and supervisors engaged in construction work. Nevada also
requires consultation with members of the deceased's family.
Today, I am here to state on the record that Nevada OSHA is going
to address the issues raised in Federal OSHA's Report. However,
budgetary constraints may have an adverse impact on our ability to
address the issues quickly. Thus, while we are committed to change we
are mindful of our financial limitations.
Historically, Nevada has stepped up to the plate financially. At
present, the State of Nevada contributes over three quarters of the
operational cost for Nevada OSHA. But, Nevada is not alone. Over the
years, the ratio of federal contribution has slipped, with the state
plans picking up an increasing share of the costs.
Therefore, as Federal OSHA increases its oversight of state plans,
we are compelled to ask you implement an equitable and consistent
formula to fund state plan programs. The current formula is antiquated
and inadequate. If you want state plans to succeed, you must address
the funding formula.
In my remaining time I would like to take this opportunity to
address a couple issues raised in the Federal OSHA Report.
At the onset, I want to touch on ``willful'' and ``repeat''
violations. Here, I can tell you we are already addressing the
perception that willful violations are discouraged; they are not. In
conjunction with this effort, we are forging a new and effective
working relationship between our enforcement personnel and our
attorneys.
These actions, along with others, will ensure that employers who
willfully or repeatedly violate OSHA standards are issued appropriate
citations.
Overall, it is my intention to enhance and strengthen all our
enforcement policies and practices. Accordingly, Nevada will develop an
action plan addressing all the findings and recommendations in Federal
OSHA's Report.
Next, I want to say a few words about training. We do not take this
issue lightly. Like other state plans we rely on training from the OSHA
Training Institute (OTI). That will not change; we will continue to
send our inspectors to OTI. We will also continue to schedule on-site
training because we think it is extremely cost effective. In addition,
we will take steps to ensure our enforcement personnel understand and
apply their training, particularly in the area of hazard recognition.
In closing, Nevada OSHA welcomes the advent of uniform, meaningful
and effective Federal OSHA oversight. Therefore, I say to you today,
let us all work together in a positive and constructive manner to
achieve our common goals. Nevada will take the lead in addressing
issues raised in the Federal OSHA Report but we need your support and
assistance.
Thank you for your time and attention.
______
Chairman Miller. Ms. Debi Koehler-Fergen. Welcome to the
committee, Ms. Fergen, and we thank you for being here. We, I
think on behalf of every member of the committee, we extend our
condolences to your family.
But I also want to recognize you taking up this battle to
change these circumstances after your son became a victim of a
very badly managed program, if not more.
So thank you for being here, and we look forward to your
testimony.
STATEMENT OF MS. DEBI KOEHLER-FERGEN
Ms. Koehler-Fergen. Chairman Miller and distinguished
members of the committee, my name is Debi Koehler-Fergen, and I
would like to thank you for inviting me to testify here today.
I do so in the memory of my son, Travis Wayne Koehler--I am
sorry. I give God the glory for answering my prayers to be
heard.
Travis and Richard Luzier lost their live and David Snow
was severely injured at the Orleans Hotel, as been stated, on
February 2nd, 2007. The federal review of the Nevada state
agency accurately reflects the fact that Nevada OSHA utterly
failed, not only my son, but also Richard and the other workers
killed or injured.
I view the federal report on Nevada OSHA's investigative
practices as vindication of my allegations in the CASPAI filed
that showed clearly supportable evidence for willful or repeat
violations that were not cited by Nevada OSHA even though the
owner-operator of this hotel had been previously cited for
substantially similar conditions and hazards at other
properties.
It was clear to lead investigator John Olaechea that Boyd
management and the supervisors knew of the dangerous conditions
that existed concerning confined spaces, yet Nevada OSHA
management would not support willful/repeat citations and
essentially let the gaming company get away with, in my
opinion, murder.
My son trusted his employer. He never would have dreamt
that he would be called upon to intentionally be put in a
deadly situation. He is a Carnegie Hero Award recipient for his
actions that day. And while proud of him, it is of little
consolation for our family. He is desperately missed by me, his
dad Pops, his brothers Bobby and Brandon, other family and
friends.
I found it especially troubling to read in the federal
report that Nevada investigative personnel are completely
lacking in many areas of training for the jobs that they are
entrusted with.
The federal report states that two employees have conducted
fatality investigations in 2009 without the benefit of accident
investigation training. How can an agency entrusted to protect
Nevada's workforce lack in so many areas of training
themselves?
There is also a desperate need for family member victims to
be heard and included in the investigation process and to be
treated with dignity. But sadly, that is not what happened to
me personally.
I felt misled by Steve Coffield, then acting CAO of Nevada
OSHA in Las Vegas, who said I would be happy with the outcome
of the case. I am not sure how reduced citations would make me
happy.
I am also dismayed to find out from the federal report that
the case was delayed because Nevada felt the need for further
investigation, yet I was told it was due to a scheduling issue
between all parties.
As a mother whose son had suddenly been ripped from her
arms due to a completely preventable incident, it wasalso very
distressing for me to stand in the back lobby of the OSHA
offices when Mr. Coffield gave us the investigative report and
endure sideways glances of other employees coming to work,
watching me cry when told of the reduced findings. No
invitation to his office or other private area to ask
questions, not even an offer to sit or a drink of water.
It was a humiliating and disrespectful experience. And
still, I have no answers why those willful citations were not
given.
Unless someone can prove to me otherwise, and I welcome the
effort, I will always believe there was corruption in the
Orleans case. Powerful companies such as the gaming industry
use their political connections to influence such things as the
outcome of an investigation, as I believe Boyd Gaming did.
Nevada OSHA cannot continue to buckle under these political
pressures and needs to stand up and send the clear message that
the game is over and give the citations and fines that prove
it.
And federal OSHA needs to hold them responsible for making
the changes set out in the review report.
I am very pleased with the outcome of this federal review
of the Nevada OSHA office and practices. They did a thorough
job of looking for the truth and finding areas that need
improvement.
I applaud everyone involved for their dedication to make
not only the Nevada state office a more efficient agency, but
for trying to ensure that hard-working people can go home to
their families at the end of the day.
In closing, due to the enormity of the task ahead for
Nevada OSHA, I am skeptical that they will be able to implement
the changes in a timely manner and with the urgency it must in
resolving these deficiencies.
While I want very much to believe they are willing to
address all of the issues and make a more effective agency, I
personally have a wait-and-see attitude.
I would like to, for the record, give a copy of the
Workplace Tragedy Family Bill of Rights to Mr. Jayne, if I can.
[The information follows:]
Workplace Tragedy Family Bill of Rights
The following Bill of Rights for family member victims of workplace
fatalities and serious injuries would provide fundamental privileges to
the loved ones left behind by workplace incidents.
1. A federal liaison office must be established to provide family
members with information about the accident investigation(s) process,
role of other state or federal agencies, workers' compensation and
other matters related to their loved one's death.
2. Family members must have full ``party status'' in legal
proceedings involving OSHA, MSHA, or whatever state or federal agency
is conducting the workplace-fatality investigation.
3. Family members must have the right to designate a representative
to act on their behalf in all matters related to the investigation and
any follow-up legal actions related to the investigation.
4. Family members must be notified of all meetings, phone calls,
hearings or other communications involving the accident investigation
team and the employer, and be given the opportunity to participate in
these events.
5. Family members must have the opportunity to recommend names of
individuals to be interviewed by the accident investigation team and to
submit questions to the investigators for response by the interviewees.
Family members should be given access to all transcripts of interviews,
affidavits, or written statements made by witnesses and others
interviewed for the investigation.
6. Family members must have the right to be kept routinely [no less
than once every 14 days] informed by federal and state officials (e.g.,
OSHA, OSHA State-Plans, MSHA) on the progress of the incident
investigation, including an estimate of when the investigation will be
completed.
7. Family members must have the right to conduct an independent
investigation of the work-related fatality or serious injury, including
the right to visit the scene of the accident before it is released by
the investigation team back to the employer's control.
8. OSHA and MSHA must assure that all physical evidence related to
the accident investigation is preserved and secured in a tamper-
resistant environment. Family members should have the right to view all
physical evidence.
9. Family members should have access to all documents gathered and
produced as part of the accident investigation, including records
prepared by first responders, and state and federal officials.
Information mentioning the deceased family-member's name and condition
should not be redacted from documents provided to family members. All
fees related to the production of documents should be waived for family
members.
10. Family members must be compensated for the time and expenses
incurred because of a work-related fatality or serious injury. In cases
where the deceased or seriously injured worker has no spouse or
dependent children, a parent of the worker should be compensated for
funeral cost, travel and medical expenses, and lost wages.
______
Ms. Koehler-Fergen. I urge federal OSHA and Department of
Labor not to let Nevada OSHA slide back into complacency.
Thank you very much.
[The statement of Ms. Koehler-Fergen follows:]
Prepared Statement of Debi Koehler-Fergen
My name is Debi Koehler-Fergen; I reside in Las Vegas, NV and am
the mother of Travis Wayne Koehler, who along with Richard Luzier, was
killed and Dave Snow was seriously injured at the Orleans Hotel in Las
Vegas on February 2, 2007.
The Federal OSHA review of the Nevada State plan agency confirms
that NV OSHA utterly failed not only my son and Richard, but also all
workers in the state of Nevada. I filed a CASPA because NV OSHA
inexplicably downgraded penalties for Boyd Gaming that the investigator
recommended as willful and repeat. The Federal report vindicates the
allegations in my CASPA because it clearly shows supportable evidence
for those recommended penalties. The Federal report is a grave
indictment of the problems in the State plan agency, showing it in
significant and woeful disrepair. My son trusted his employers and
never would have dreamt that on that fateful day he would be called
upon to intentionally be put in a deadly situation. And how many people
feel that they can trust OSHA to keep their employers from doing them
harm? Far too many I'm afraid.
I found it especially troubling to read that NV OSHA investigative
personnel are completely lacking in many areas of training for the jobs
they are entrusted with. The Federal Review report states that ``Two
employees have conducted fatality investigations in 2009 without the
benefit of Accident Investigation Training''. One employee who had not
received basic training for Initial Compliance was hired in 1993! How
can an agency entrusted to protect Nevada's workforce by ensuring they
are properly trained lack in many different areas of training
themselves? They write citations to companies for non-compliance for
various violations and yet they themselves are also in non-compliance.
NV OSHA is not living up to its enforcement plan that it be at
least as effective as Federal OSHA. They are allowing powerful
companies to use their political connections to influence such things
as the outcome of investigations, as I believe Boyd Gaming did. If NV
OSHA continues to buckle to those political pressures and if they fail,
within an agreed upon time frame, to fully and completely reform itself
according to what has been set out in the Federal Review then Federal
OSHA needs to exercise its responsibilities as set forth in Section 18F
of the OSHA Act, step in and exert its authority over the State Plan,
even if it means taking away Nevada's certification.
Federal OSHA did a thorough job of looking for the truth and
finding the areas that need improvement. I applaud everyone involved
for their dedication to make not only the Nevada State office a more
effective agency but for helping to ensure that hard working people can
go home to their families at the end of the day. I see the enormity of
the task ahead for NV OSHA to remedy these serious and troubling
problems. I am skeptical whether they will implement the changes in a
timely manner and with the degree of urgency that it should, therefore,
I have a wait-and-see attitude but urge Federal OSHA and Department of
Labor not to let NV OSHA slide back into complacency. Life is too
precious to allow that to happen again.
Congressman Miller and distinguished Members of the Committee: My
name is Debi Koehler-Fergen; I reside in Las Vegas, NV and I would like
to thank you for inviting me to testify here today for the hearing
entitled: ``Nevada's Workplace Health and Safety Enforcement Program:
OSHA's Finding and Recommendations''. I do so in the memory of my son,
Travis Wayne Koehler. When he was killed February 2, 2007 one of my
first prayers was to please allow this one mother's voice be heard and
I give glory to God for hearing my prayer.
It has been my contention for years that NV OSHA made intentional
missteps and were unduly influenced in how they handled the Orleans
Hotel case that caused the deaths of my son Travis Koehler and Richard
Luzier and severely injured David Snow. On that terrible day, Richard
was directed by his supervisors to go into a permit required confined
space, without any training or knowledge of the consequences, to
correct a problem in the grease trap/lift station. Gasses were released
after he cut a pipe and when he fell into trouble the same supervisors
sent Travis, also untrained and unaware of the consequences, to go help
Richard. At his heels Dave Snow was told to go help; he was also
untrained and unaware of the consequences. According to the Coroner's
report the level of hydrogen sulfide fumes were at such extreme levels
that it would have rendered them unconscious within seconds. Did the
supervisors even take the time to consider the innumerable OSHA rules
and state laws they were violating? They obviously had time to think
about it but their decision shows me they didn't care. Following are
examples of these supervisors' personal failures and the failures of
Boyd Gaming Management:
Failed to contact the contracted outside company who
always did this type of work--the supervisors' reason for not having
their department personnel trained.
Failed to follow state law and notify the Clark County
Fire Dept. Heavy Rescue Squad of their plans. Instead they were 30
miles away conducting training and those poor souls had to stay down in
that manhole until CCFD got back into town, set up their rescue
equipment and remove their lifeless bodies from their death chamber.
Failed to heed their own managers to get the men trained
and keep them away from all confined spaces. Boyd management showed a
culture for not caring about safety issues.
Failed to heed the concerns of a couple of the men who
loudly expressed their opinion that this was too dangerous and they
needed to wait for the outside company.
Failed to utilize the safety equipment that was on site,
gathering dust in a storage area.
Failed to equip the men with any more specific safety gear
other than gloves. According to the OSHA investigation report, the
Orleans had a contractual agreement with the outside pump company which
prevented them from letting their engineering employees use
respirators!
Failed to supply air to the area to clear out the fumes
and stinking gasses that everyone knew was present in the area.
Failed to perform an air sampling of the pit to make sure
it was free of gasses.
It is not difficult to conclude from these points that Orleans
management demonstrated their plain indifference for the employees and
set in motion a tragedy that took the lives of two young men and
permanently hurt a third. It is was clear to John Olaechea, lead
investigator on the Orleans Hotel case, that Boyd management and the
supervisors KNEW of the dangerous conditions that existed concerning
confined spaces, yet NV OSHA obviously chose to turn a blind eye to the
obvious and not support the citations recommended by Mr. Olaechea and
essentially let the gaming company get away with--in my opinion--
murder.
I believe the Federal review of the Nevada State plan accurately
reflects the fact that NV OSHA utterly failed not only my son and
Richard, but the other workers who died and all workers in the state of
Nevada. I view the findings on NV OSHA's investigative practices as
vindication for my allegations, expressed in the CASPA I filed, that
shows clearly supportable evidence for willful or repeat violations
that were not cited by NV OSHA. The Federal Review report is a grave
indictment of the problems in the State plan agency. It shows the State
agency in significant and woeful disrepair that needs urgent attention.
People go to work every day with the misguided notion that they are
being protected by their employer and an agency whose job it is to keep
them safe. I know my son trusted his employers. He would never have
dreamt that on that fateful day he would be called upon to
intentionally be put in a deadly situation. He is a Carnegie Award Hero
for his actions, but I'm sure he did not believe following the
directions of those he trusted would result in his death. And how many
people feel that they can trust OSHA to keep their employers from doing
them harm? Far too many I'm afraid.
The citations that were clearly warranted by Mr. Olaechea, and
documented in an internal memo (taken from the OSHA investigation
report) that made his case, according to OSHA's own definitions, for
three willful neglect and three repeat serious citations among others.
As supported and stated in this review report, NV OSHA issued serious
rather than willful or repeat citations even though the owner/operator
of this hotel had been previously cited for substantially similar
conditions and hazards at other properties. I might point out that
while the citations were irresponsibly downgraded to serious; the
penalties assessed were $23,000 each which is far above the normal
penalty fine for a serious violation. According to Boyd Gaming online
financial reports, the quarter ending September 2007 the total fines of
$185,000 equals one third (\1/3\) of one day's NET profit. To say these
were significant fines and some of the largest assessed in the state is
laughable considering what the gaming company earns. OSHA, as a whole,
needs to understand that when they downgrade or withdraw citations and
penalties, it just adds to our family's overwhelming grief over the
death of our loved one and it feels like there is no justice for
anyone--except for the offending company.
Personally it was clear to me, and many others, that NV OSHA was
trying to cover the fact that they knew they should have cited them for
willful and repeat since while they downgraded the citations they
penalized them more on the level of repeat. To further point out that
NV OSHA missed the mark on our investigation and ignored obvious
reasons to cite Boyd Gaming with willful or repeat, consider the
following points that the Boyd Gaming EHS Manager stated in our OSHA
report:
He knew of the notice of violation at the California Hotel
for confined spaces.
He knew that confined spaces were very dangerous hazards
and that they were common to all Boyd properties (not only in Las Vegas
but across the country).
He also knew there were no safety programs or training at
the Coast properties.
He discussed all this with corporate officials above him
and he knew all of this in mid 2005.
He attempted to do audits on safety issues but upper
management canceled the internal audits.
It is clear that Boyd Gaming upper management was aware of the
safety issues at their properties, yet did nothing to address the
hazard of confined spaces by making sure their employees were well-
trained. It is clear that since the Nevada state agency was in such
disarray they completely and utterly missed an opportunity to not only
do the right thing and give justice to these young men, but also to
have sent a very loud, clear message across the Las Vegas valley to the
other companies--especially construction--that may have prevented at
least some of the deaths that occurred in the months following my son's
death.
While the findings of the Federal review team do not entirely
surprise me, I found it especially troubling to read that investigative
personnel are completely lacking in many areas of training for the jobs
they are entrusted with. The Federal review report states ``Two
employees have conducted fatality investigations in 2009 without the
benefit of Accident Investigation Training''. OSHA employees who should
have had basic training for Initial Compliance, for example, had not
received this training--and one was hired as far back as 1993! How can
an agency entrusted to protect Nevada's workforce by ensuring they are
properly trained lack in many different areas of training themselves?
They write citations to companies for non-compliance in getting their
employees trained and yet they themselves are also in non-compliance.
Because I wanted to stay informed about the progress of our report
and the findings, I had several conversations with Mr. Olaechea and he
told me that he didn't know why this case was being handled in such an
unusual way. He said he didn't understand why it was taking so long and
also told me he had several conversations with Steve Coffield, acting
CAO of NV OSHA in Las Vegas, stressing the importance of keeping those
violations as willful and repeat. He felt what happened in this
incident was so egregious that the company and supervisors should be
criminally prosecuted. He said he was adamant about that and indicated
that Mr. Coffield assured him nothing would change. I also contacted
Mr. Coffield by phone expressing concern for the six month deadline and
he told me not to worry, the case was still intact and indicated to me
that I would be very pleased with the outcome. He knew I wanted justice
for my son and the only way was to find them willfully negligent. As
pointed out in the Federal Review report NV asserted that because of
the need for ``further investigation'' the ``need to reinvestigate was
a primary reason final settlement was somewhat delayed''. It was
disturbing to read this because Mr. Coffield told me the reason for the
delay was that it was just difficult to get everyone together at the
same time for a meeting, that it was a scheduling issue. I would have
appreciated being told the truth, first of all, and it would also have
helped me better accept the delay at that time.
Mr. Coffield assured me that I could come to their office and pick
up a copy of the report once it was completed and would answer any
questions. Of course, due to what I assert were undue influences Boyd
Gaming walked away with a sweetheart deal thanks to NV OSHA. I would
like to ask if anyone seriously believes that I would be pleased with
reduced citations that did not hold the company and individuals that
killed my son and Richard accountable for their deaths. To reduce those
citations was to say that their lives meant nothing. Adding insult to
injury when we arrived to pick up the report I was told to come in the
back lobby area and he would be right down (reporters were expected to
be coming to the front door and going to their office). Instead of
inviting us to his office he stood by the back elevator explaining why
they reduced the citations while employees were walking past us
watching me cry as I was understandably upset. At no time did he offer
me a chair or to go to a private room while I digested what was going
on around me. He did not show me common courtesy and was the most
unprofessional encounter I have ever had.
Personally, I believe that at some point Mr. Coffield may have
planned to give the willful and repeat citations, but some highly
unusual maneuverings took place that caused him to back down. I am
referring to the very unusual involvement of Mendy Elliott, who worked
for the NV governor and Roger Bremnar, of the Department of Business
and Industry, who inserted themselves into the Closing Conference,
invited by whom I don't know. Someone had to have contacted Mr.
Bremnar's office asking for their help. To me that says they believed
this case to be bigger than just an accident with a couple of
fatalities. In an unsolicited letter she wrote to me, Ms. Elliott
expressed her feelings about my filing the CASPA and stated that she
and Roger Bremnar were involved in the closing conference and that the
settlement discussions that followed were appropriate. I understand
that Mr. Bremnar made the final decision to downgrade the citations yet
no one has ever communicated with me why. I would still like to know
that. Ms. Elliott further stated that she and Roger have ``concluded
that NV OSHA acted in the best interest of the Nevada workers''. I'm
sorry but the ``significant monetary penalties'' against Boyd Gaming
were nothing more than pocket change to the owner and certainly nothing
to make them pay attention to any future fines. And my request of Ms.
Elliott for full disclosure of the settlement discussions was ignored.
While the Federal Review report states that Boyd Gaming is not a
part of the SHARP (Safety & Health Achievement Recognition Program),
there is a legally-signed document supporting their inclusion into
SCATS (Safety Consultation & Training Section) to prepare them for the
program in the NV OSHA investigative report. In light of the glaring
issues within NV OSHA as well as the history of Boyd Gaming safety
issues, I would encourage them to be on top of unannounced inspections
of Boyd Gaming properties.
One important reason why I believe Nevada needs a strong, competent
OSHA is due to the transient nature of the construction market in Las
Vegas where people come from all over North America to work on
construction projects, as well as in the hotels and casinos. Employers
must be made to keep up with a workforce that could change on a weekly
basis.
I believe that within the Nevada State agency there must be 100%
openness in all their dealings with regards to the families. No more
private meetings, no more making decisions without being prepared for
full disclosure on all aspects of the case. Even to why they reduce or
withdraw a citation. Corruption can be tolerated NO MORE!! OSHA should
be an apolitical office and treat every case the same regardless of the
company, corporation or gaming giant they are dealing with.
In my opinion, the only way to get the attention of employers
across the Las Vegas valley, especially that of the gaming industry who
believe they answer to their own power, and uses its political
connections to influence such things as the outcome of an
investigation, as I believe Boyd Gaming did, is for Nevada OSHA to take
a strong stand and give citations and fines that will send a message
that they mean business. If the gaming industry continues to exert its
influence by using the political system in the State of Nevada, and NV
OSHA continues to buckle to them, then Federal OSHA needs to step in,
take over and put a stop to it!
In closing, I am very pleased with the outcome of this review of
the NV OSHA office and practices. I feel they did a thorough job of
looking for the truth and finding the areas that need improvement. I
applaud everyone involved for their dedication to make not only the
Nevada State office a more efficient and positive agency, but also for
helping to ensure that hard working people can go home to their
families at the end of the day.
I see the enormity of the task ahead for NV OSHA to remedy these
serious and troubling problems and I am concerned if they will be able
to implement the changes in a timely manner and will the NV agency
actually be able to resolve the deficiencies that have been identified
with the degree of urgency that it needs to. I cannot say that I am
satisfied with all the responses made by the State OSHA office. Many of
them said nothing really or didn't address the allegations as
thoroughly as they should have. While I want very much to believe they
want to address all of these issues and make a more effective agency I
personally have a wait-and-see attitude.
I urge Federal OSHA and Department of Labor not to let NV OSHA
slide back into complacency.
______
Chairman Miller. Thank you.
Dr. Mirer?
STATEMENT OF FRANKLIN E. MIRER, PROFESSOR OF ENVIRONMENTAL AND
OCCUPATIONAL HEALTH, CITY UNIVERSITY OF NEW YORK
Mr. Mirer. I am Frank Mirer. I am a professor now, but I
spent 30 years with the United Auto Workers Union. My academic
project is trying to generalize that experience.
And I have to say the most intense experience with state
plans was the night we worked in--I think it was 2000--way into
the night to settle the Ford Rouge power plant investigation
and million-dollar penalty, and management agreed to take on an
issue that is through the whole company, which reinvigorated
health and safety in the company and derived benefit far beyond
the borders of Michigan. And there is a lesson there as to what
happens after a tragedy.
We are here looking at inspection, citation, employer
contest, abatement--where the rubber meets the road in health
and safety. And let's face it. We are here because of the
courageous actions of some families in Nevada to bring this
before us.
But the problems depicted in the OSHA report--slow
investigation, modest penalty, employer contest or threatened
contest, reduced penalty, family and employees not involved in
investigation, settlement and uncertain abatement--
unfortunately, those are characteristics of a lot of things
that happen in the safety and health world now, not just in
Nevada, not just in state plans, but elsewhere. And that is
what we have to talk about correcting.
There are a lot of statistics in my testimony, but
statistics don't put guards on machines or conduct confined-
space entry programs. We have to talk about what is really
going to level the playing field between state and local--state
and federal upward, and take advantage of the innovations in
both directions.
Now, state plans were historically a compromise back in
1970. Some of us felt that giving back enforcement to agencies
that we were replacing federal with--state with federal to
level the playing field between the states. But the essence of
the interaction is equalizing upward.
Since that argument, two things have emerged, I think, that
change the terrain. One is the notion of multi-plant, multi-
state agreements to abate hazards, which are disadvantaged in
the state program system.
And the other is the coverage of public employees which
exists in state plan states and not elsewhere, and this is a
large segment of our population.
And so those have to--those two issues have to be addressed
in trying to abate these problems.
Now, there are a lot of statistics about the differences
between state and federal enforcement, and what they boil down
to is two questions. Why do states appear to classify
violations as lower gravity, lower penalty, than federal OSHA?
And on the other hand, why does federal OSHA appear to be less
productive in terms of investigations and total citations?
And we have to understand the reason why that is happening.
This should not be a trade between productivity and quality.
And we should be equalizing everything upward and taking
advantage of of both experiences to improve protections across
the country.
In my testimony, there is some more detailed analysis of
the differences in the statistical measures between Nevada and
state plans and OSHA in general. We need to have a system that
recognizes statistical abnormalities, things that are operating
outside the system and responding to them.
But ultimately, the oversight of these programs depends on
individual case reviews. That is why we are here, because of
individual case reviews. Individual case reviews tell a story
that people can use, whereas numbers are numbers and can be
interpreted in a lot of different ways.
At the end of my testimony I cite an example which may be a
way forward, the explosion in Corbin, Kentucky taken up by the
Chemical Safety Board. There is an example of both a lost
opportunity, protections not extended across the country, from
a tragic accident.
And it also depicts the power of a complete case review
looking for failures in regulation, failures in enforcement,
failures in state program, in this case, activity. But I submit
that it has to be applied to--applied in the federal system
equally as well to move forward.
Thanks very much.
[The statement of Mr. Mirer follows:]
Prepared Statement of Franklin E. Mirer, Ph.D., CIH, Professor,
Environmental and Occupational Health Sciences, Urban Public Health
Program, Hunter College, City University of New York
I am Franklin E. Mirer, Professor of Environmental and Occupational
Health in the Urban Public Health Program, Hunter College, City
University of New York.
However, most of my career was spent living in and representing
workers in a state plan state, Michigan on behalf of the United Auto
Workers. I served on the advisory committee to the Michigan Health
Standards Commission, which votes standards for Michigan OSHA. I
directed UAW staff who served on the actual standards commissions. By
agreement with Michigan OSHA, I received and reviewed every citation
issued in UAW represented facilities, and all notices of contest. By
agreement with OSHA, I also received many citations notices of contest
for UAW represented facilities in these jurisdiction. I have directed
staff in numerous OSHA and state OSHA contests and settlement
discussions. I personally was involved in negotiating and implementing
the OSHA companywide settlement agreements on ergonomics in all three
the auto companies. I also participated in the OSHA-Ford-Visteon
partnership, which included a major state plan component.
My academic project is extracting from this experience the lessons
for future policy in occupational safety and health.
This hearing offers a window into the world of inspection,
citation, employer contest and abatement. This is where the rubber
meets the road for occupational safety and health compliance. It also
reminds us that in 20 states, 46 million private sector employees must
rely on state agencies rather than federal OSHA for protection at work.
And for state and local public employees, state laws in the states that
chose to adopt them, administered by state agencies are the only means
of protection. So our nation's health and safety outcomes depend on
more than federal OSHA.
We are here because of a series of fatalities in a high profile
location--Las Vegas, Nevada--received attention because of the efforts
of courageous families and a moving series of newspaper reports. The
fatalities were suffered by workers maintaining or building structures
for a rich and visible industry. The product of oversight hearings
should be a system for correcting situations which don't rise to the
public eye.
The OSHA report, and the press reports, depict failures of
enforcement and the enforcement process in the Nevada state plan. After
a tragic injury, a slow investigation, a modest penalty, an employer
contest or threatened contest, a reduced penalty, family and employees
not involved in the investigation and settlement. And, uncertain
abatement. Unfortunately, these are common faults in our safety and
health system.
Federal OSHA can take this opportunity to improve its oversight of
state plans. Hopefully, state plan administrators will take this
opportunity to address improvements in their agencies. Congress should
consider legislative needs where legislation is needed to improve
Federal oversight.
My testimony will address four matters: the importance of
enforcement in the system of safety and health protections; the history
and rationale for state plan enforcement; the faults revealed by the
OSHA review of the Nevada plan; general issues with enforcement,
whether state or federal; and, issues to consider going forward.
Importance of enforcement in the system of safety and health
protections
Enforcement--inspections, citations, penalties and prosecutions are
essential to safety and health protection. In our society, lack of
consequences for violating a law signals that we--the citizens of the
United States--don't care about that law, or the victims of its
violations. In my experience, a violation with an inappropriate low
penalty is undermines compliance more than no violation at all. This
signal is equally an obstacle for workers, and for health and safety
professionals employed by management, in getting hazards abated.
Always, but especially in times of economic crisis, management wants to
know what it has to do, not what it ought to do. The importance of
enforcement of standards for workers may seem obvious. I know, from
years of experience in labor management discussions, and implementation
of joint health and safety programs, that it's important for management
that wants to do the right thing.
Enforcement effectiveness is a combination of frequency of
inspection, targeting of inspections on high exposure workplaces,
degree of certainty of citation, gravity and penalty, and assuring
abatement.
When it comes to job safety enforcement and coverage, it is clear
that federal and state OSHA combined lack sufficient resources to
protect workers. The combination of too few OSHA inspectors and low
penalties makes the threat of an OSHA inspection hollow.
In FY 2008, at most 2,043 federal and state OSHA inspectors were
responsible for enforcing the law at approximately eight million
workplaces.
In FY 2008, the 799 federal OSHA inspectors conducted 38,652
inspections and the 1,244 inspectors in state OSHA agencies combined
conducted 57,720 inspections At current staffing and inspection levels,
it would take federal OSHA 137 years to inspect each workplace under
its jurisdiction just once.
The current level of federal and state OSHA inspectors provides one
inspector for every 66,258 workers. This compares to a benchmark of one
labor inspector for every 10,000 workers recommended by the
International Labor Organization for industrialized countries.
Federal OSHA's ability to provide protection to workers has greatly
diminished over the years. Since the passage of the OSHAct, 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) and 1,102 inspectors
responsible for the safety and health of 67.8 million workers at more
than 3.9 million establishments. At the peak of federal OSHA staffing
in 1980, there were 2,951 total staff and 1,469 federal OSHA inspectors
(including supervisors). In 2008, there were 2,147 federal OSHA staff
responsible for the safety and health of more than 135.3 million
workers at 8.9 million workplaces. The ratio of OSHA inspectors per one
million workers was 14.9. The number of employees covered by federal
OSHA inspections was 1.4 million in FY 2008. In 1992, federal OSHA
could inspect workplaces under its jurisdiction once every 84 years,
compared to once every 137 years at the present time.
In FY 2008, the average hours spent per inspection was 9.7 hours
per safety inspection and 34.9 hours per health inspection.
Penalties for significant violations of the law are low. In FY
2008, serious violations of the OSHAct carried an average penalty of
only $921 ($960 for federal OSHA, $872 for state OSHA plans). A
violation is considered ``serious'' if it poses a substantial
probability of death or serious physical harm to workers.
Federal OSHA issued 497 willful violations in FY 2008. The average
penalty for a willful violation in FY 2008 was $41,658. The average
penalty per repeat violation was $4,077 in FY 2008. In the state plan
states, in FY 2008, there were 182 willful violations issued, with an
average penalty of $28,943 and 2,367 repeat violations with an average
penalty of $2,021 per violation.
History of State Plans: State plans were a compromise in the
passage of the OSHA Act in 1970. As safety and health protection
evolved, the importance of differing issues compromised changed.
Coverage of public employees has emerged as a major value of state
plans.
Formation of state plans was among the central political and policy
issues during the Congressional debate on the Occupational Safety and
Health Act and the early days of OSHA. Controversies arose in several
states over whether state jurisdiction was a good idea. State plans
were approved for as many as 28 states. Eight states subsequently
withdrew, reverting to federal enforcement. California at one point
withdrew, reverting to federal enforcement, and then revived the plan
after a referendum directing that the state plan be restored was
supported by the majority of California voters.
The OSHA law was passed because of perceived shortcomings of the
state based safety and health enforcement and standards system which
preceded. This included weak enforcement by state agencies. Section 18
of the OSHA law should be viewed as a compromise reached in the 91st
Congress.
Proponents of state plan enforcement argued that these state
agencies were closer to the ground than federal OSHA would be.
Proponents argued that laws parallel to the OSHA law adopted at the
state level would be better than the old state laws and would permit
the agencies to do a better job. The states would have to pay half the
cost of enforcement, matched by the federal government, therefore
expanding resources. States might promulgate more effective standards
than OSHA, or innovate requirements such as safety and health programs.
Proponents of federal enforcement argued that a new attitude from
the ground up in a new agency was needed. A federal system would level
the playing field between states, so that auto workers (and management)
in Tennessee could expect the same treatment as those in Ohio. Leveling
the playing field would mean that management couldn't seek to locate
facilities in states with weaker enforcement. Federal OSHA proponents
also felt that business influence in a state, especially the influence
of corporations or industries with major facilities in a state, would
have more control over a localized agency than over the federal
government.
The compromise agreed to by the Congress in enacting the OSHAct was
the establishment of a federal system of protections and worker rights
backed up by a common system of enforcement and penalties. States were
permitted to participate as partners and exercise jurisdiction if they
established state safety and health plans that provided for standards
and enforcement that were at least as effective as the federal OSHA
program. States were also required to cover public employees under
their laws and to participate in national injury and illness reporting
programs. Federal OSHA was given the responsibility to review and
approve the state plans and to monitor them on an ongoing basis to
ensure that they were performing as required by the law. As part of the
partnership arrangements, the OSHAct provided for the federal
government to provide up to 50 percent of the funding for the state
plans.
Since the 1970's, two other issues emerged, one a disadvantage of
state enforcement, the other an advantage. Regarding enforcement, state
plans would be unable to reach beyond their borders to coordinate
enforcement to influence management which had facilities in other
states. Corporate-wide settlement agreements and partnerships both
would have to implemented and monitored separately in each state
jurisdiction. The example below, the explosion at CTA Acoustics in
Corbin, KY in 2003 illustrates the opportunities which may be lost by
not expanding beyond state borders.
On the other side, state plans were required to provide protection
to state, county and municipal employees. These employees represent a
large sector of the economy in which federal OSHA was forbidden to
tread. Four federal enforcement states have instituted public employee-
only state plans. In the remaining federal enforcement states, public
employees are unprotected.
Enforcement statistics reveal important areas for improvement for both
state plans and for OSHA.
Enforcement statistics are dry and complicated, but they are
process measures for a safety and health agency which may measure
quality as well. In terms of quality control, the output of a safety
and health agency is hazards identified and hazards abated. Citations
can be taken as enumerating the hazards identified. The gravity of the
citation should be related to the gravity of the hazard. Lower
proportions of higher gravity citations between jurisdictions may
indicate deviating definitions of gravity, a different spectrum of
workplaces observed, or deficiencies in investigative techniques.
The attached chart compares the Nevada State Plan, State Plans in
total, and Federal OSHA enforcement. In my opinion, both state plans
and OSHA are deficient.
In summary, compared to OSHA, state plans in general issue fewer
citations classified as higher gravity, including serious, willful,
failure to abate and repeated. Total penalties assessed are
significantly lower for state plans than federal OSHA, despite a
greater number of citations. Despite lower gravity and penalties, more
citations are contested among state plans than federal. By contrast,
state plans conduct more inspections, and issue more citations
classified as ``other than serious.'' State plans employ more numerous
staff than OSHA, compared to the workforce covered. State CSHO's
conduct more inspections than their OSHA counterparts.
The obvious questions for quality improvement are:
Why do state plans appear to classify violations as lower gravity
with lower penalty than federal OSHA?
Why does federal OSHA appear less productive in terms of
inspections and total citations?
Personally, I see no trade off between gravity and productivity.
Explaining the differences in these statistics would be enhanced by
generating the enforcement results for inspections in construction,
general industry safety, general industry health, and public sector
separately.
In addition, it will be very important for additional methods for
assessing productivity to be applied. Health inspections, especially
those involving air sampling, take longer than safety (injury control)
inspections. Allowance should be made. A separate metric should be
applied to construction inspections which typically count multiple
contractors at the same site as multiple inspections.
Performance measures for Nevada Appear Outside the System
The most striking deviation by Nevada was the absence of willful
citations in 2008, noted by the OSHA report. The proportion of willful
violations for state plants combined was also about \1/4\ that for
federal OSHA (N = 0, S= 0.3%, F = 1.3%). The fraction of higher
gravity, combining willful, repeated and failure to abate was lower (N
= 2%, S= 5%, F = 9%) These were less than half the proportion for
states combined and less than \1/4\ the proportion for federal OSHA.
The fraction of serious violations was also lower (N = 29%, S= 44%, F =
76%) In addition, violations per inspection were lower than state plans
combined and than federal (N = 2.4, S= 3.3, F = 3.2). Serious
violations per CSHO were \1/2\ that for states combined and about \1/3\
that for federal (N = 21.5, S = 42.9, F = 60.0). The number of higher
gravity citations (WRF) per CSHO was about \1/2\ that for state plans
combined and less than \1/2\ that for federal. (N = 1.3, S= 2.5, F =
3.1).
Examples of incidents needing case review are not limited to
Nevada.
The following incident report illustrates the nature of the
incidents which need review. In the CTA Acoustics explosion, the most
important issues are the nature of abatement negotiated, and the
opportunity taken or lost for generalizing the abatement of combustible
dust hazards beyond the specific state agency.
Workers at CTA Acoustics in Corbin, KY, a supplier to the auto
industry and therefore of interest to the UAW, suffered a dust
explosion on February 20, 2003 that killed seven workers and injured 37
others. The facility was non-union. The United States Chemical Safety
Board (CSB) reported ``Investigators found that CTA had been aware that
combustible dust in the plant could explode, but did not communicate
this hazard to workers or modify operating procedures or the design of
the plant. CTA company memoranda and safety committee meeting minutes
from 1992 through 1995 showed a concern about creating explosive dust
hazards when cleaning the production line. Further concerns were raised
in 1997.'' http://www.csb.gov/newsroom/detail.aspx?nid=119 The facility
had been inspected by Kentucky OSHA in December, 2002 in response to a
complaint (subject of complaint not known), but no citation was issued
for the combustible dust hazard. OSHA's records show that Kentucky OSHA
issued citations for 7 serious violations (mostly of electrical
standards) on August 5 of 2003, which were settled on August 25, 2003,
for a total of $49,000. The abatement agreement, beyond penalty, is not
known. http://www.osha.gov/pls/imis/establishment.inspection--
detail?id=305910440
My reading of the CSB report suggests that willful violations could
certainly have been issued and could have been sustained. Willful
violations of an OSHA standard leading to the death of a worker may be
subject to criminal prosecution, so the distinction between willful and
serious violations carries consequences for lessons learned by the
industrial community. This was an opportunity to progress to control of
combustible dust pending completion or even the start of setting an
OSHA standard.
Recommendations
1. Federal OSHA needs to enhance its oversight and monitoring of
state plans to ensure that they are performing as required by the
OSHAct, with standards and enforcement programs that are at least as
effective as federal OSHA's protection
2. OSHA oversight should increase emphasis on case file review, in
relation to other statistical methods. State plans should be required
to identify significant cases, while OSHA oversight should sample cases
likely to be problematic. A narrative of the incident with successes
and failures would advance both the target agency, agencies in other
states, federal enforcement, congress and the general public.
3. Post citation processes should be especially scrutinized:
describe the impact of informal conference, negotiations after employer
contest, the nature of an abatement agreement if negotiated, and a
sample of formal hearings.
4. Parallel inspections or accompanied inspections by OSHA
oversight personnel are important. For injury control (safety)
standards, it is sometimes necessary to see what's happening on the
floor to understand whether appropriate hazard identification and
abatement took place.
6. For each state plan and federal OSHA, OSHA should collect data
and publish data to compare training, longevity, pay rates of CSHO's.
6. Enforcement data collected should stratify results by
construction, general industry, public sector.
7. Penalty data should distinguish penalties assessed from final
penalties. For penalty data, OSHA should provide the median as well as
the average amounts. The average is very likely skewed by a few high
penalty cases, but most employers will see the median.
8. OSHA needs a way to intervene and improve state plan performance
short of revoking the state plan. Revoking a state plan means depriving
state and local employees of health and safety protection. Legislation
may be needed to facilitate mechanisms for federal intervention, such
as concurrent jurisdiction, where state plans are found to be
deficient.
9. Finally, and maybe most important. Our nation can't expect to
get the significant reductions in fatalities, injuries and illnesses by
tinkering with the inspection and enforcement program within the
current framework. Fundamental change is needed--this change includes
increased employee participation in all phases of health and safety,
plus standards that reflect the science of the 21st century, plus
coverage of all American workers, plus reliable protection of workplace
whistleblowers.
table 1: comparison of enforcement data between nevada osha, all state
plans combined, and federal osha.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: OSHA IMIS, accessed 2009-10-22.
STATE PLAN COMPLIANCE SAFETY AND HEALTH OFFICERS PER COVERED EMPLOYEES
--------------------------------------------------------------------------------------------------------------------------------------------------------
# CSHOs
Total Private Total Allocated 1,000 per
State State Gov Local Gov Public Sector Employees CSHOs FY Covered 100,000
Employees Employees Sector Employees Covered 2009 Employees Covered
Employment per CSHO Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alaska..................................................... 25,700 42,200 67,900 224,900 292,800 12 24.4 4.1
Arizona.................................................... 90,900 300,100 391,000 2,115,000 2,506,000 25 100.2 1.0
California................................................. 494,200 1,791,800 2,286,000 12,292,900 14,578,900 224.5 64.9 1.5
Connecticut................................................ 73,200 165,400 238,600 .......... 238,600 6.5 36.7 2.7
Hawaii..................................................... 77,400 18,600 96,000 488,700 584,700 18 32.5 3.1
Indiana.................................................... 115,900 296,000 411,900 2,471,200 2,883,100 70 41.2 2.4
Iowa....................................................... 69,500 172,800 242,300 1,260,800 1,503,100 29 51.8 1.9
Kentucky................................................... 97,600 187,400 285,000 1,512,200 1,797,200 41 43.8 2.3
Maryland................................................... 113,600 254,300 367,900 2,089,600 2,457,500 53.5 45.9 2.2
Michigan................................................... 176,900 430,900 607,800 3,408,000 4,015,800 67 59.9 1.7
Minnesota.................................................. 99,400 292,300 391,700 2,301,200 2,692,900 57 47.2 2.1
Nevada..................................................... 39,300 109,200 148,500 1,075,700 1,224,200 41 29.9 3.3
New Jersey................................................. 150,400 454,400 604,800 .......... 604,800 20 30.2 3.3
New Mexico................................................. 61,100 109,200 170,300 645,200 815,500 10.5 77.7 1.3
New York................................................... 262,500 1,145,300 1,407,800 .......... 1,407,800 45 31.3 3.2
North Carolina............................................. 205,800 460,300 666,100 3,336,500 4,002,600 114 35.1 2.8
Oregon..................................................... 78,500 198,000 276,500 1,389,900 1,666,400 80 20.8 4.8
Puerto Rico................................................ 224,800 68,200 293,000 712,000 1,005,000 48 20.9 4.8
South Carolina............................................. 102,100 217,300 319,400 1,535,400 1,854,800 29 64.0 1.6
Tennessee.................................................. 97,200 287,600 384,800 2,312,900 2,697,700 39 69.2 1.4
Utah....................................................... 66,900 116,400 183,300 1,040,300 1,223,600 19 64.4 1.6
Vermont.................................................... 18,400 32,300 50,700 247,000 297,700 9.5 31.3 3.2
Virginia................................................... 159,400 384,600 544,000 3,023,800 3,567,800 58 61.5 1.6
Washington................................................. 152,200 325,500 477,700 2,382,600 2,860,300 114 25.1 4.0
Wyoming.................................................... 16,600 48,400 65,000 228,500 293,500 8 36.7 2.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Plans................................................ 3,069,500 7,908,500 10,978,000 46,094,300 57,072,300 1,243.5 45.9 2.2
========================================================================================================================================================
Federal OSHA:
Federal Employees......................................... 2,776,600 65,886,400 68,663,000 1,118 61.4 1.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Chairman Miller. Thank you.
Thank you all very much for your testimony.
Let me just say at the outset, Ms. Fergen, I think one of
the things that has upset this committee time and again on both
sides of the aisle is when families are cut out of the process,
whether it is in mining accidents or construction accidents or
other issues where there has been a loss of life or very
serious injury.
And part of our ongoing effort here is to make sure that,
in fact, families are part of that process. The idea that they
have to be bystanders, that they have nothing to contribute,
when in fact, we know in a number of accidents families
contribute very important evidence, because they talk to their
spouse or to their father or their brother going to work, and
they talk about what is wrong with the work site.
In mining, very often that takes place. And yet nobody
solicits their opinions, their knowledge, their understanding,
as if they are completely irrelevant to these investigations.
And that simply has to change. It has to change at the
federal level, has to change at the state level, and we are
continuing to pursue that. It should sound easy but for some
reason it is not quite as easy to do as it should sound, but it
is very important to members on both sides of this aisle.
We have been through this too many times, and we have had
too many witnesses such as yourself that have suffered a loss
and have basically been told just to stand over there and
behave, and you will learn the results when everybody else
does.
And I know there are variations on that theme, but it all
sort of ends up in that place. So I just want to thank you and
assure you that that is an ongoing effort on our part.
At the end of your statement, you made a plea that this
isn't going to work out unless federal OSHA is more deeply
involved monitoring how the review is dealt with.
Mr. Barab, what is the assurance we have that there is
going to be this involvement, speaking specifically now about
Nevada?
Mr. Barab. Yes, we have asked the state, or we have told
the state, that we want a detailed corrective action plan from
them to describe how they are going to address all of the
recommendations we made.
We have given them 30 days from the time we submitted the
report, to November 20th, to give us that detailed action plan.
From that point on, we have given them a year--we will give
them a year to address all of the recommendations that we have
made, and we plan to very carefully monitor their progress in
addressing these recommendations. We will be on the ground
there frequently----
Chairman Miller. What do you----
Mr. Barab [continuing]. To monitor that.
Chairman Miller. You will be on the ground--will you have
federal OSHA officials there, or an office, or what are you
doing?
Mr. Barab. We are planning on--we do not currently have an
office in Nevada, but we are planning on setting one up there.
But in the meantime, we will have people there temporarily at
least.
Chairman Miller. And what is the time frame for----
Mr. Barab. I am not----
Chairman Miller [continuing]. Having an office?
Mr. Barab [continuing]. Sure yet. We are kind of
negotiating now with a--we are trying to find a location. We
are talking to the GSA. You know, it is the federal government.
We are not quite sure what the time line is, but we have made
it a priority and we are moving forward on it.
Chairman Miller. Well, yes. I think that is important.
Senator Reid testified to, you know, what has taken place in
Nevada and the nation--the world has watched this.
What has happened on the--with development, not--
residential, commercial and the rest of that, and the--it is
clear that Nevada will go through another cycle.
And I think it is important that the resources be there.
Mr. Jayne, one of the things that concerns me in this is if
I read it right, and I certainly stand to be corrected, but
Senator Reid talked about the $32 billion of activity on the
strip, and it is really quite amazing, and people who have been
there to see it--the combination of not only entertainment
facilities and gaming facilities and residential, but it is
really quite massive--that has taken place.
But you don't see much increase in the personnel resources,
the staff dedicated to this process, when you really had
thousands of workers at the same time. People have marveled in
the news.National magazines have commented on the number of
cranes in the sky and what is taking place, and yet it looks to
me like this was fairly flat during that period of time.
Mr. Jayne. Just for the record, Don Jayne.
I share your same observations. One of the things that I
looked at when I came on board was to take a look back at past
budget cycles. And for many years, the total allocation has
been relatively flat.
You know, we have had some growth over the years that
Nevada has experienced and we funded it up. But the last few
budget cycles we have been relatively flat as far as the number
of individuals.
Now, the unfortunate reality of the current economy is that
is--let's, you know, back things back down as far as the number
of jobs, and quite a significant number of jobs in the
construction industry have been lost in Nevada.
But I do believe that there will be a rebound to that cycle
and that they will come again where Nevada will begin to boom
with a building move.
One of the things that caught us in the last cycle was
during that boom time virtually 50 percent of our experienced
staff was taken away by the private sector and other
governmental entities.
And that compounds one of the problems that we are still
working through today, that virtually 50 percent of our staff
is approaching 1 year of seniority, and--I am sorry, 25 percent
of our staff, and another 25 percent of our staff has less than
3 years' of experience as we aggressively train through.
So we are going to have to dedicate resources in Nevada
towards improving the pay structure. There has been a
subcommittee created already by the Nevada legislature that I
will start working with immediately, have made contact with the
chairman of that committee.
And we are talking to schedule our first meeting in the
early part of the year to continue to monitor this process on a
state level as well as working with our federal partners.
Chairman Miller. This is sort of the cow is out of the barn
here, but you know, I know--I think all of us experience that
when cities and counties engage large developments, fees are
assessed for roads, for highways, for all of these things that
are going to have to support that development.
And when you are going to add, you know, thousands on a
really--on a very rapid scale, you are going to add thousands
of jobs, it would seem to me somebody should have said, you
know, ``What do we do about it here?''
I recognize the federal deficiencies in funding OSHA. We
haven't been a great partner there. But in terms of that
effort, it has to look different than just the run-of-the-mill
development that is taking place, because it is so outstanding
in the magnitude of the development that was collapsed in this
period of time.
And I just think the state has got to think about--these
are extraordinary circumstances, and especially if there is--
you know, that raises competition for your employees.
You have to think about how you put the resources in so
that, in fact, trained inspectors will be in place and can
properly monitor these jobs, because the--what this report
tells is that that simply wasn't happening on the level that
was necessary, given the work sites and the number of employers
and employees involved here.
So I just would hope that some consideration would be given
to that.
Mr. Kline?
Mr. Jayne. I understand and agree.
Mr. Kline. Thank you, Mr. Chairman.
And, Ms. Koehler-Fergen, I want to identify myself with the
remarks of Chairman Miller. We all extend our condolences to
you and to your family and to all those who have suffered and
died.
And I think we understand--we can't fully appreciate,
because we are not in your shoes, but--the frustration that you
and families have felt, as Chairman Miller said, in being cut
out too often in these discussions and in--when these terrible
tragedies occur.
Mr. Barab, how long does--is this process going to take,
not in Nevada but your sort of review, this wall-to-wall review
of these state plans? Can you give us some sense of what you
are looking at here?
Mr. Barab. Yes, we have told our regional administrators to
basically start immediately on these reviews. The normal time
frame for these reviews--the time frame we have given them--we
are targeting--is the end of April next year.
Given the number of the reviews that are going on, we are
hoping to get it done by then. At very least, however, the
first part of next year we will have these finished, and they
will be published, and they will be public.
Mr. Kline. You are going to do all of them, or is there
some--there is not a priority here? There is 27 of these that
you are going out to do simultaneously?
Mr. Barab. Yes, we are going to do all of them at the same
time. I mean, each region has responsibility for a certain
number of state plans under its authority. Some of them have
more than others.
We will be sharing staff between regions if that is
necessary in order to get all of these done.
Mr. Kline. Okay. And what happens if they come up short?
What are your courses of action here?
Mr. Barab. We will basically follow the same pattern that
we followed with Nevada. We will deliver to them our findings
and recommendations. We will ask them to offer an action plan
and we will give them a deadline for addressing all the
recommendations we have given them.
Mr. Kline. And if they come up short, do you establish a
federal OSHA office in the state?
Mr. Barab. We already have federal OSHA offices in a good
number of the states where we have state plans, so it will
depend on the state and on the situation.
What we will do is we will certainly, you know, focus on
getting an assurance from them that they will address these
problems. There are further steps we can take if any state
basically refuses to or is unable to address the
recommendations.
Mr. Kline. And the further step being federal OSHA takes
over, or how does that work?
Mr. Barab. Yes, it depends on the status of the state. Most
of the states have what we call final status. We have given
them basically full control of their state programs, although
obviously we are still required to oversee those programs.
It is kind of a complicated process, but ultimately the
main weapon we have is to reassert federal jurisdiction over
the state enforcement.
In other words, we would go in there and essentially--for a
while, until they have managed to correct the situation, to
assert federal jurisdiction. In other words, we would be
running the state program.
Now, that is easier said than done if the state with final
status can actually refuse to allow us in, in which case we
would have to begin the process of essentially removing that
state program, taking away their ability to run the state
program.
That is a fair--we have never had to do that. It is a
fairly long and arduous process. We are hoping not to do that,
not to have to do that.
Mr. Kline. Okay. While this is going on, while you are
reviewing the state programs, and potentially establishing
offices and so forth, there are some half the states that don't
have these state plans, where you are it.
Do you see a draw-down on the--are you going to be able to
maintain your level of effort there and make sure we are not
having these horrible accidents in the states----
Mr. Barab. Yes, we are confident----
Mr. Kline [continuing]. Where there isn't a state plan?
Mr. Barab [continuing]. We have the resources to do that,
between the resources we have now and, as you may also be
aware, the president's fiscal 2010 budget has requested about a
10 percent increase for OSHA, which will include about--
somewhere over 100 new compliance officers, and some of these
will also be--or at least some of those resources will
certainly be dedicated to state plan oversight.
Mr. Kline. Okay, thank you. I am just about to run out of
time. You are going to conduct these reviews and, by the way, I
think it is a very fine idea. I mean, clearly we need to know
what is going on and we don't want to see a repeat of what
happened in Nevada.
In this plan is there a process to continue to review, to
continue the oversight? How do you see that playing out?
Mr. Barab. Yes, absolutely. Once we have completed all the
reviews, we are going to be looking at the findings that we
have had.
We are then going to look at our current state plan
monitoring procedures and make any changes in those monitoring
procedures that need to be made, and we are fairly sure we are
going to need to make some fairly major changes in those
current monitoring procedures.
They obviously have not succeeded in identifying a lot of
the problems that, for example, we just identified in Nevada.
Mr. Kline. Okay. I think we will probably want to take a
look at that.
Thank you, Mr. Chairman. I yield back.
Chairman Miller. Thank you.
Congresswoman Titus?
Ms. Titus. Thank you, Mr. Chairman.
Thank all of you for your testimony, especially Ms.
Koehler-Fergen, for your advocacy on behalf of your son and on
behalf of all workers who rely on OSHA to enforce these worker
safety laws.
I am pleased that federal OSHA has helped the Nevada
program identify ways to improve oversight and enforcement and
that Mr. Jayne has brought a new administration and is
committed to making those improvements.
And as I have heard some of the problems, I realize that a
lack of training--we can fix that. A lack of resources--that
can be addressed by the legislature or in the different
budgets.
But none of these improvements will matter if outside
pressure continues to be inappropriately applied. So we need to
explore not only what are the needed internal program changes
but how we minimize the perception or reality of undue
political influence and establish a more standardized,
transparent process moving forward.
Now, the perception of Nevada OSHA is that the process has
been capricious, it has not been inclusive, it has not been
fair, and it has not been aggressive enough in ensuring worker
safety. Furthermore, the perception is this process has been
driven by undue political influence.
So I would ask you, Mr. Jayne, what you are planning to do
to remove the perception that Nevada OSHA is making decisions
based on bad politics, not good policy, especially given that
many of the faces in the program are the same.
And then I would ask you, Mr. Barab--I appreciate the
changes that you are making internally and the oversight that
you are doing--especially appreciate having an office in the
district in southern Nevada.
But is there not anything we can do legislatively to give
you some more teeth to your recommendations short of having to
take over the whole program, whether it might be sanctions or
whatever?
So those would be my two questions.
Mr. Jayne. For the record, Don Jayne.
Thank you, Congresswoman Titus. I am aware, too, of some of
the allegations and the concerns that there may or may not have
been some undue political influence. I have not been able to
find anything that would lead me to any definitive conclusions
there other than the observations that were made.
Certainly, the advice of the technical staff, the safety
staff, the professionals is what I need to abide by when they
make recommendations to me.
The administrator of our division of industrial insurance
should have the authority to make those decisions within the
agency. I do believe that authority rests there and the
decisions are ultimately made there.
I guess the observation I could make would be that at least
the leadership from business and industry in Nevada, through
the administrator, through the chief administrative officer,
has all been changed.
I can, again, on the record--and that really is something
that I can merely say--is that I would not bow to undue
political influences, but I understand what you are saying as
far as the perception.
When I work with the subcommittee in Nevada to review the
procedures, I will make sure we address that to see if there is
any appropriate way to try to insulate some of that.
Certainly, we are in a chain with a reporting chain, and I
stand fairly strong from my position, but I understand the
concerns, and we will bring it with that committee as well as
the subcommittee.
Mr. Barab. Let me address your question to me. As I
mentioned, right now our only major option if we do not have a
cooperative state program is essentially to revoke that state
program, which is an extremely burdensome process requiring
notice and comment, rule-making, hearings possibly, and
possibly also going on to the courts for final decisions.
Now, the administration does not have a position on
legislative improvements or legislative changes. We haven't
discussed this thoroughly yet. We certainly have heard a number
of suggestions that would basically lead toward making it a lot
easier for OSHA to assert concurrent jurisdiction, even if the
state were unwilling to allow us in.
So I think those kind of suggestions to kind of come part
of the way toward engaging with the state without having to go,
again, through the hearings, notice and comment, and that type
of thing, are some of the things that have been suggested.
Chairman Miller. Thank you.
Mr. Roe?
Mr. Roe. Thank you.
Chairman Miller. Thank you. Okay, Mr. Roe.
Mr. Roe. Thank you, Mr. Chairman.
And I would also associate myself with the chairman and
ranking member's comments, Ms. Fergen, for you and your family,
and I see the picture of your son. I have two sons, and you are
right to advocate for he and other young people who work in the
construction industry, so my condolences to you and your
family.
My father worked in a factory and I think probably had
better--died at 61 years of age. And I think if there had been
better regulations about the environment he worked in, he would
have had a longer life. I believe that.
I also know that in my dealings in my medical practice we
have had some OSHA views--examinations, I should say, that
their time would have been better spent somewhere else, as to
the color of a bag that something was in, or--just ridiculous
things that make business harder to do. And I can sit down and
talk to you for an hour about that.
That is not what this is. This is a very serious issue and
should be addressed. And I think unacceptable, quite frankly.
Mr. Secretary, I missed the number. How many people had
died within a year's time in construction?
Mr. Barab. It depends on the time period you are talking
about. When the articles had been written in the Las Vegas Sun
there were, I think, about nine, within a very short time
period, fatalities on the strip itself.
The time period covered by our report covered 25 fatalities
within about a 16-or 18-month period.
Mr. Roe. Didn't that wave a red flag at somebody? I mean,
that seems to be an enormous number of people.
Mr. Barab. Well, luckily, it originally--I think it raised
the red flag with a reporter, Alexandra Berzon, with the Las
Vegas Sun. She managed to raise it to the public's
consciousness.
The problem you find with workplace fatalities is most of
them happen one at a time, so there may be an article--a small
article in the paper one month, and another one the next month.
Nobody really notices.
Mr. Roe. But please--not to interrupt, but I don't have
much time, but I know in the practice of medicine we report
things to a central area, and when you--it looks to me like
Nevada OSHA would have been where you reported.
That should have been not a red flag, that should have been
a marching band telling you----
Mr. Barab. We agree.
Mr. Roe [continuing]. That there was a problem.
Mr. Barab. We agree. And that was one of the findings of
the report.
Mr. Roe. And was it a problem with leadership, or
resources, or what? I mean, how could that go on?
Mr. Barab. Well, I think we identified a number of problems
with the Nevada state plan, but I would have to say the problem
was also with federal OSHA. We were not performing the
oversight that we are required to do.
And that is one of the things we are looking at very
carefully, is the kind of oversight we need to provide for
these states.
Mr. Roe. I certainly don't want to make it impossible to
carry on business; I mean, and believe me, a lot of the OSHA
rules make it harder to carry on business.
But it should be reasonable rules, I think, and that was
certainly reasonable to have protection where your son went. I
mean, that was a--anybody with common sense would have known
that.
I also think that--and, Dr. Mirer, your comments on
productivity and quality were right on, I think. You want to
make it where you can work in a safe environment, provide a
quality work environment, and remain productive so your
business can be competitive. I think you were right on the
money there.
My question for the secretary--the state plans are required
to be at least as effective as federal OSHA, correct? And can
you tell us what benchmarks federal OSHA uses to quantify that?
Mr. Barab. Well, that is the essence of the issue here.
There are a number of benchmarks that we could be using.
We can compare, for example, the--some of the statistics
that went up there before--how many inspections they do, how
they cite what the level of fines are, what the seriousness of
the citation is, obviously injury and illness, fatality rates
in the state.
There are a number of different factors we can use to
measure that. We have not been using enough of those, really,
to oversee the states and to ensure that they are at least as
effective.
And that is one of the things that we are going to be doing
as we go through and review all the state plan performance. We
are going to be looking at those measures again and trying to
decide which best ones to use to ensure that the states are at
least as effective as the federal plan.
Mr. Roe. See, I think it is--I think that somebody dropped
the ball, because it took a citizen to step up, really a
newspaper to step up, and identify the problem when the agency
in charge of the problem apparently didn't identify the
problem. Am I correct?
Mr. Barab. You are correct, absolutely.
Mr. Roe. I think just one last question. Was it a resource
problem or a leadership problem? I still didn't get the answer
to that.
Mr. Barab. We didn't really identify any of the problems as
real resource problems. They really were procedure and
performance problems that we identified.
Mr. Roe. So you had enough money to do it.
Mr. Barab. Yes. Nevada OSHA actually provides quite a bit
more money. They over match. They are one of the states that
actually provides greater that 50 percent.
So again, it was really more the procedures that they
followed and the performance that we identified as the key
problems.
Mr. Roe. So it was leadership.
Mr. Barab. Yes.
Mr. Roe. Okay.
I yield back my time, Mr. Chairman.
Chairman Miller. Thank you.
Congresswoman Chu?
Ms. Chu. Thank you, Mr. Chair.
My questions are for Mr. Barab.
In Nevada, worker safety has been put in danger because of
lax enforcement, the reduced or withdrawn citations for
fatality cases after contractors objected. These cases were
highlighted in the Las Vegas Sun and now California's problems
are showing up in the Los Angeles Times.
[The information follows:]
[From the Los Angeles Times, October 21, 2009]
Worker Safety Appeals Board Rulings Raise Question
The board often reduces or dismisses penalties
against companies that Cal-OSHA has fined
By Jessica Garrison
Rosa Frias was working the evening shift at Bimbo Bakeries in South
San Francisco when she reached into her bread-making machine to remove
a hunk of dried dough.
She screamed as her left hand, and then her lower arm, were sucked
into the gears of the Winkler stringline proofer. That night, the limb
had to be amputated above the elbow.
The incident drew a $21,750 fine from the California Division of
Occupational Safety and Health. But Bimbo paid nothing. It appealed to
the Cal-OSHA Appeals Board, which dismissed the case on a technicality:
The inspector had retired and Cal-OSHA could not prove that he had had
permission to enter the factory.
Since that 2003 accident, five more employees in Bimbo's California
plants have lost fingers or parts of fingers in accidents in which
inspectors found similar safety violations. In two of those accidents,
the appeals board reduced the fines by thousands of dollars.
``That is mind-boggling,'' said Linda Delp, director of UCLA's
Labor Occupational Safety and Health program.
It is not, however, unusual for companies to fare well on appeals.
A Times review found that the board has repeatedly reduced or dismissed
penalties levied by Cal-OSHA over the last few years, even in
situations in which workers have died or been seriously injured. The
board's actions have done more than save companies money. They have
undermined Cal-OSHA's efforts to prevent future accidents, according to
labor advocates, inspectors and state documents.
Earlier this year, 47 inspectors and district managers at Cal-OSHA,
about a quarter of the staff, signed a letter to the board complaining
that Cal-OSHA's ``deterrent effect has been significantly undermined as
employers learn they can `game the system.' ''
``It sends a message that all an employer has to do is appeal,''
said Jeremy Smith of the California Labor Federation, a group that
lobbies on behalf of unions. ``Penalties will get whittled down, and
the employer can write that off as the cost of doing business.''
Candice Traeger, the chairwoman of the appeals board, acknowledged
that during her tenure thousands of cases had been settled, often for
cents on the dollar.
It is not because the board favors employers, she said: Rather, the
board had to clear a backlog of 2,500 cases, a goal it accomplished
earlier this year.
The backlog, which had drawn a federal complaint, was bad for
workers, she said, because companies did not have to fix problems while
their cases languished.
``Eliminating the backlog * * * was what gave us the flexibility
[to] do what we are doing now, which is make and create a better
appeals process,'' said Traeger, a former Teamster union steward and
executive at UPS who was appointed in 2004 by Gov. Arnold
Schwarzenegger.
In May, however, the state Senate Committee on Labor and Industrial
Relations took Traeger's board to task over the way it had whittled
down its caseload.
Drawing in part from testimony at a Senate oversight hearing, the
committee issued a report that cited ``drastic'' penalty reductions for
employers and a flawed hearing process. According to the report, the
board scheduled multiple cases to be heard simultaneously by the same
judges, often far from where witnesses lived.
``Many argue that this practice is resulting in fines and penalties
for real workplace hazards being withdrawn, downgraded and severely
reduced in coerced settlements,'' the report said.
Traeger countered that many cases have been settled because Cal-
OSHA inspectors have not properly issued citations or documented the
problems--not her board's fault.
``Honestly, nobody likes us,'' Traeger said. ``I tend to think that
means we're doing something right. We're balanced, we're in the middle.
We make a determination on what's right under each case.''
In California, imposing safety fines on an employer can be an
elaborate process.
First, a Cal-OSHA inspector cites violations, which can be appealed
to an administrative law judge appointed by the appeals board. Then the
three-member board can either accept the judge's decision or change it.
Its decisions, in turn, can be appealed in state court. (Any fines
collected go to the state, not the employees.)
The current board is made up of industry representative Traeger,
public representative Robert Pacheco and labor representative Art
Carter. Carter was appointed in March after the labor seat had been
vacant for two years.
There is no simple way to assess all 18,000-plus appeals the board
has handled since 2005 because the dockets are not readily accessible.
But one measure of the board's record is to look at cases in which the
panel has stepped in to review its own judges' decisions. These
``Decisions after Reconsideration'' are the board's way of setting
precedent for its judges to follow.
The Times reviewed all 55 decisions the board has issued under
Traeger, finding that in about half of them, the panel reduced or
dismissed the employer's fine--often by thousands of dollars. It also
changed the gravity of some findings--reducing them from ``serious'' to
``general,'' which could have implications for a company's insurance
costs and competitiveness.
In 11 of them, the board changed rulings in employers' favor even
before an appeal was filed. Some examples:
When a worker died in Barstow in 2001 after a hopper with
13 tons of liquid asphalt fell on him, Cal-OSHA fined the company
$18,000 for not securing the load--a penalty upheld by a judge. But the
appeals board in 2007 dismissed the case, ruling that Cal-OSHA needed
also to show that the design of the equipment was unsafe.
A judge upheld a citation against a general contractor
after a subcontractor's worker was injured in an accident involving a
pressurized pipe. But the board in 2007 dismissed the citation against
the contractor even though there had been no appeal, saying the
contractor could not be aware of a subcontractor's ``every activity.''
In a 2006 case, a worker's arm and fingers were injured
when a rock conveyor moved unexpectedly at a quarry. A fine of $12,600
was issued. The appeals board stepped in to say that such fines can be
reduced, at the board's discretion, for reasons that include financial
hardship to an employer.
That decision drew a stinging dissent from the then-labor
representative on the panel, Marcy Saunders. ``A decision that allows a
multimillion-dollar employer to be rewarded for committing a violation
which results in the fracturing of a worker's [limb] and * * *
potentially allows all `financially distressed' employers to avoid
responsibility for safety violations is, at best, irresponsible and, at
worst, shameful.''
The appeals board also has let stand judges' decisions to dismiss
cases on narrow technical grounds.
Kevin Scott Noah, 42, was installing rebar on the Golden Gate
Bridge when he fell 50 feet to his death in August 2002.
A Cal-OSHA investigator concluded that the contractor had not
provided employees with scaffolds and issued three ``serious''
citations and a $26,000 fine, records show.
The contractor appealed on the grounds that Cal-OSHA had issued the
citations to ``Shimmick Obayashi,'' the name listed on the company's
business cards. The company's full name was ``the Shimmick Construction
Company Inc./Obayashi Corp.''
An administrative law judge tossed the case out, writing that Cal-
OSHA had failed to determine the company's legal name.
Although the board let the decision stand, Traeger said, the panel
since has begun allowing incorrect names to be amended on citations.
That is little comfort to Noah's mother, Sandra Noah, who said that
her son had three boys who had to grow up without a father. ``I just
don't feel it's right,'' Noah said.
Dozens of times in the last two years, the board and its judges
have summarily reduced a $5,000 fine that is levied on employers for
not reporting workplace accidents within eight hours as required,
according to the Senate report.
Traeger told The Times that flexibility is necessary to ensure that
injuries get reported, and employers who report late should not be
treated the same as those who try to hide accidents.
But Paul Koretz, a Los Angeles city councilman who wrote the
reporting law when he was in the Assembly, said, ``This is not what was
intended. They are obviously trying to get around this legislation.''
Labor advocates say the Bimbo case crystallizes their concerns
about a process that they consider stacked against regulators and
employees.
After Frias was injured, an inspector found that the machine that
had mangled her hand lacked a required guard. But by the time Bimbo's
appeal was heard, in 2007, that inspector had retired and was
unavailable.
Cal-OSHA lawyers insisted that the inspector had permission to
enter the factory: His report said plant managers were cooperative.
What's more, Bimbo did not offer any evidence that it refused entry. In
addition, Frias' foreman testified that it was standard procedure for
employees to put their hands into machines.
Even so, the judge dismissed the case, so Bimbo was not required to
fix the problems.
Over the next three years, six more employees lost fingers or parts
of fingers, and Cal-OSHA filed citations against Bimbo in five of the
accidents.
Cindy Marquez's case at the Montebello plant was eerily similar to
Frias': She too reached into a machine without the proper guards,
records show. The judge ruled that Cal-OSHA had not offered enough
proof that an unguarded blade should be a serious violation. The fine
was reduced from $22,500 to $5,000. Cal-OSHA has appealed.
A representative of a public relations company retained by Bimbo
issued a statement that said, in part, ``the use of the appellate
process provided under the law did not delay our efforts to correct
safety issues that arose at our plants.''
Union officials at the plants confirmed that the company eventually
learned from the accidents and has since spent millions of dollars
improving safety.
After The Times began asking about the Bimbo cases, Cal-OSHA
inspected several of the company's facilities earlier this month.
``Bimbo has a significant way to go to achieve acceptable workplace
safety levels,'' said Division Chief Len Welsh through a spokesman.
Traeger, meanwhile, said the board intends to review the judge's
decision in the Frias case.
Six years after her accident, Frias' workers' compensation attorney
says she is too distraught to talk about it. The attorney, Donald
Galine, was incredulous when told of the subsequent injuries at Bimbo
plants.
``Five injuries after Rosa?'' he said. ``Had the state done what
they are supposed to, maybe Rosa would not have been saved--but maybe
others would have.''
graphic: one bakery's workplace accidents
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Ms. Chu. In California, the worker safety appeals board has
repeatedly reduced or dismissed penalties against companies
that Cal/OSHA has fined. There was one company, Bimbo Bakery in
San Francisco, where Rosa Freeyez reached into a bread-making
machine and her arm was sucked in and had to be amputated.
The incident drew a $21,750 fine but the bakery paid
nothing after they appealed to the worker safety appeals board.
And now it turns out that over the last few years the vast
majority of cases have been dismissed or settled for a few
cents on the dollar or penalties have been drastically reduced
just because companies protested.
Also, the hearing process is very, very flawed, with the
board scheduling multiple cases to be heard simultaneously by
the same judges, often far from where the witnesses live.
So, what I want to know is, what has broken down in terms
of federal OSHA's oversight over the state plan system.
Mr. Barab. That is a good question, and that is one of the
things we will be looking at as we go and look at California
and the other states. Review boards are certainly within OSHA's
purview of oversight.
It is a little bit more complicated because we require each
state to have an independent review board, but that means
independent of the state OSHA, so you are actually--you can't
go to the state OSHA and ask them to correct problems with the
review board. You would have to go up to the governor's office
to ask them to do that, because they are an independent agency.
As we go in and look at, for example, the problems that you
identified in California, we are going to need to find out
whether the problems are actually with, for example, poor
documentation of cases by the OSHA inspectors, some of which we
found in Nevada, or whether they were arbitrary decisions made
by the review board or, perhaps, decisions made by the review
board that are based on regulations or laws that we would
consider to be not as effective as the similar regulations or
laws in the federal government, in which case we could go in
and require them to modify those regulations or laws.
We would also look at the procedures that article
identified, for example, as you mentioned, where the board
would schedule a number of different hearings at the same time.
That sounds like a problem with their procedures and certainly
something that we would want to address.
Ms. Chu. So you think it can be done through regulation? Or
does Congress need to change some laws?
Mr. Barab. I don't think this is a matter of Congress
changing the laws. I think, again, this comes back to oversight
over the state programs, which includes oversight over the
review boards, to make sure that they are functioning properly
as they are intended to function.
Ms. Chu. Mr. Barab, the L.A. Times article also mentions
that it is nearly impossible to track the appeals board cases
because the dockets are not readily accessible.
I know that the Obama administration takes transparency and
accountability very seriously. Can you tell me if there can be
new regulations or guidelines to make sure that the state-
administered plans are more open and transparent?
Mr. Barab. Yes, I think that is one of the things we are
going to be addressing. Obviously, it is hard to monitor any
kind of agency or any kind of program if you don't have the
basic data to monitor it with.
And whereas we could probably get that data, I think it is
also important that citizens also have that data, as well, to
access, so that will be one of the areas we will be addressing.
Ms. Chu. California has, of course, a state OSHA plan just
like Nevada, and nationwide there are 340 complaints about
state plans in general. In Nevada there were 18 complaints and
California had 41 complaints.
How do you monitor these complaints?
Mr. Barab. When someone files a complaint against a state
program, it goes to the regional administrators. We have 10
regions around the country. California is part of region nine.
And that region is responsible for responding to that
complaint.
We found as part of the process--we haven't just been
looking at OSHA--we have also been looking at ourselves, and
we, quite frankly, are not satisfied either with the way we
have been responding in some cases, to the complaints against
state programs.
We have asked our regional administrators to look at their
procedures to make sure that these complaints are handled on a
much more timely basis than they have been in some cases, and
we will be collecting data on where these have been filed and
really following up on them in a--in much greater detail than
we have before.
Ms. Chu. Well, in the future, I would like to follow up
with you on the California situation and see what your
findings----
Mr. Barab. Sure.
Ms. Chu [continuing]. Have brought forth, but also I would
be very concerned if there isn't any action before there are
even worse injuries taking place.
Mr. Barab. Yes. We would be glad to work with you on that.
And California has been, especially in terms of standards,
innovative standards, as I mentioned, an outstanding program.
They have really come up with some very good ideas and--
inspirational to not only the federal government but also other
state plan states.
Ms. Chu. Thank you.
I yield back.
Chairman Miller. Thank you.
Ms. Woolsey?
Ms. Woolsey. Thank you, Mr. Chairman.
First of all, I echo every single thing that Congresswoman
Chu just said about California. Imagine, we are a model for the
country and we are--the things that California is not living up
to these days. Shame, shame on all of us.
Ms. Koehler-Fergen, when I read about your son's accident
and his death and the destruction of that--what could have been
prevented--preventable accident, I guess we should say--it
became very clear to me as the chair of the Workforce
Protection Subcommittee here on this committee--wonderful
committee we are sitting on--there is a pattern.
This had been happening. I had been reading about it all
over the country, but particularly in Nevada.
And so I ask you, Mr. Jayne and Mr. Coffield, if he is
responding, where were you guys? You didn't see the pattern?
You didn't know people were getting injured and killed and
maimed, what were you doing about it?
Mr. Jayne. For the record, Don Jayne.
We do have Mr. Coffield here, and I will let him respond to
that question. I don't like to punt, but I wasn't in position
then. I, too, was reading the newspapers, and I, too, would
have, you know, had observations about the cluster of activity
down there.
Ms. Woolsey. Yes.
Mr. Jayne. But unfortunately, I can merely respond to the
future to say that, you know, hopefully, with new leadership,
you know, we would respond to those situations quicker.
But I will yield to Mr. Coffield on that.
Mr. Coffield. Congresswoman Woolsey, I am Steve Coffield
from Nevada OSHA. City Center was the driving force behind our
fatality spike, and we actually began meeting with the
contractors and the labor organizations back in the 2004 or
2005 time frame.
When we saw the complexity, the size and the number of
structures that were going to be coming out of the ground on a
mere 65-some acres of land, everybody was very concerned about
it.
And as construction start date arrived or started getting
closer, the contractors started hiring our staff. And so we
very rapidly our experience level dropped and our staffing
level had not been increased.
Ms. Woolsey. Well, excuse me. If they had hired your staff,
they should have known what they were supposed to be doing on
the ground. I mean, they should have had the expertise there.
I would like to just go over and ask Assistant Secretary
Barab a question or two.
First of all, I would like to say that now that we have
Acting Secretary Barab--you are so wonderful. Thank you,
Jordan, for being here. And with our new Secretary of labor,
Hilda Solis, we know we are going to do something about all of
this.
And we also know that Congress has to support OSHA and that
we have to go with the president's and pass the president's
increase in OSHA's budget. We know that. We must make it
happen. And certainly, this committee will work very hard for
that.
I also have legislation, H.R. 2067, called the Protecting
America's Workers Act, which Chairman Miller has signed with
me, that will put some real increases in penalties and will
strengthen enforcement and bring OSHA into the 21st century.
So, Jordan, we are working on that, believe me.
Would you tell me, now that you are in your position and
the new secretary--how would this Nevada OSHA situation have
been handled differently in 2004 or with their new structure
could it have been handled differently?
Mr. Barab. Well, we would have hoped, I guess, that each of
the individual cases as they began to occur, certainly as they
identified these fatalities and the spike in fatalities, would
have been handled, I guess, on a more serious basis, that we
would have had penalties commensurate with the severity of the
incidents. In other words, that we would have willful citations
when they were deserved, that we would have repeat citations
when they were deserved, and high enough fines to deter that
kind of behavior from other companies.
I think that is one of the benefits of the OSHA penalty
system. And the benefits of being able to issue willful
citations, for example, is not just does it send a message
specifically to the company, but it sends a message to the
entire community that OSHA is taking this kind of cutting
corners on safety extremely seriously and will not tolerate it.
And I think that is the message that did not go out there.
Ms. Woolsey. Thank you.
Mr. Chairman, thank you.
Chairman Miller. Thank you. I look forward to working with
the subcommittee chair on this matter.
Mr. Jayne, you said you are going to address ``the
perception that willful violations were discouraged. They are
not,'' like in the present. Looking back, were they
discouraged?
Mr. Jayne. For the record, again, Don Jayne.
I am going to make some comments and ask Mr. Coffield to
fill in as well, because he lived, you know, through that era
during that time.
Certainly, in my interaction with staff and working with
the folks that conducted the special study, there was a
perception among staff that the aggressive pursuit of willful
violations was something that was difficult to obtain, that the
evidentiary level was high, and that general counsel and staff
and leadership staff, you know, wanted to challenge the
willfuls and make sure, if you will, the perfect case existed.
In my world, there is probably never going to be a perfect
case.
Chairman Miller. Well, that is more than a perception,
that's a fact.
Mr. Jayne. The perception among staff as far as whether or
not--that is what I was addressing there.
Chairman Miller. Well, if you get seven out of eight,
people die and you don't end up with a serious violation, a
willful violation. That is a fact.
Mr. Jayne. Well, what I wanted to say was that, you know,
we have addressed staff since we have--since I have been there,
since Mr. Coffield is on board, and we have told staff that
that is not a issue that we want to have, that if we had----
Chairman Miller. But, Secretary Barab----
Mr. Jayne [continuing]. That we would pursue those.
Chairman Miller [continuing]. The findings--the finding of
the review is that willful violations were discouraged because
of a lack of management and legal counsel support. So, I mean,
this is almost a setup.
You have such bad record-keeping, you have such bad
training, and you have such bad--you have such a lack of
resources or skilled people, apparently, here that can do this
that you end up seven out of eight, nothing happens.
Essentially, nothing happens for the death of a worker.
I mean, that is not a perception. There is something very
wrong there. You know, there is something very wrong with that.
It just doesn't pass the smell test.
I mean, an agency is in shambles, and the fact that the
agency is in shambles is used to suggest that we can't proceed
to prosecute willful or repeat violations or serious violations
against a responsible party.
That is not a perception. If you think that is a
perception, we are going to have problems with the review of
what is going on in Nevada OSHA.
Mr. Coffield, so this was just legal people challenging and
saying, ``Well, we just can't bring that case, we don't have
the evidence, we don't have the experience, we don't have the
talent, we don't have the record-keeping?''
Mr. Coffield. Basically, the technical staff and myself at
the time would recommend willfuls, and when they went up the
chain they would not get supported.
Chairman Miller. So people who were further and further
away from the process overturned it.
Mr. Coffield. People that didn't know a thing about the
process.
Chairman Miller. Who didn't know a thing about the process,
and then this is checked off as this is a bureaucratic problem,
this is some kind of mix of bad training, bad record-keeping,
and so the inspectors who are out on the front line--as this
works its way up--as I read the review, these things get rolled
over.
Mr. Jayne, you said you are like the highway patrol. I
don't know about the Nevada highway patrol, but no one is seven
out of eight in front of the--going to get their tickets
written down, and if they are going 150 miles an hour, they are
not going to get them written down--maybe if they are going,
you know, 67 over 65 miles an hour.
But there is something very wrong here, something very
wrong here. It simply doesn't add up to the families of these
victims, to people observing it, to the oversight. There is
something very wrong, and we cannot start out that somehow this
was just a perception within--with the inspectors.
As I see it, these inspectors are out there busting their
ass trying to provide for the real enforcement because the
enforcement is supposed to have some deterrent effect on
continuing an unsafe workplace, and they do it, and over and
over and over again they are overridden.
What is the message to the employer? What is the message to
the contracting company? What is the message to the investors?
What is the message to the bank? What is the message to the
owner of that facility? That the only thing that matters is
that I get my completion bonus, we get it done on time, and the
bank gets their money, and this is just collateral damage?
No. These are lives of workers. So I appreciate you said
you are going to be more optimistic, or you are going to be
more positive, or whatever it is in your testimony. I am
worried that you may not have a grasp of the situation.
Go back and look at the numbers of people who lost their
life, who lost their life in similar circumstances. I am not
even getting to the Boyd case yet, where it is frighteningly
similar circumstances and repeat behavior.
And they have become exempt from some kind of inspection
for the next 18 months or 2 years, whatever it is in the
report, as if they are--you know, they are the exemplary
employer and they care more about the safety of their employees
than others, so we are going to not going to inspect them, we
are going to put them in a program designed for small business?
That is great P.R. for their enterprise. It is just really
bad worker safety process and protections.
So you know, I appreciate you all being here. We are not
done with this in this committee, because something is very,
very wrong here, very wrong. And it costs good, solid people
their lives and costs a lot of misery and sorrow in their
families.
And we cannot just say, ``Well, seven out of eight cases
just--that is just the way it was.'' And we just check off the
bureaucratic boxes and we give the report to the family and
say, ``Well, you know, if we were better trained, if we had
better record-keeping, maybe your husband, or your brother,
your spouse--whatever--would be alive.'' That just won't work
here. It just won't work.
I appreciate you being here, but I just got to tell you
that this cannot be where we leave this. I know we are very
short on time, but I don't want to respond without giving you
an opportunity, even if you want to reserve the right to put
something in writing--however you want to do it.
Mr. Kline. That is fine.
Chairman Miller. Thank you very much. We are in the middle
of a vote and we have several votes behind this. A number of
our members wanted to be here. We were interrupted because of
other activities in the House.
So I don't want to hold you until after the votes, but we
will be following up with each and every one of you. Thank you
so very much for taking the time.
I have my own bureaucracy. Without objection, members will
have 14 days to submit additional materials and questions for
the hearing record. And with that, the committee will stand
adjourned.
And again, my thanks to the witnesses.
[Additional submissions from Mr. Miller follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
------
Occupational Safety & Health State Plan Association,
November 10, 2009.
Hon. George Miller, Chairman; Hon. John Kline, Ranking Member,
Committee on Education and Labor, U.S. House of Representatives, 2181
Rayburn House Office Building, Washington, DC 20515.
Dear Congressman Miller and Congressman Kline: The Occupational
Safety and Health State Plan Association (OSHSPA) hereby submits
written testimony pertaining to the U.S. House of Representatives'
Education and Labor Committee hearing of October 29, 2009 held to
examine the federal Occupational Safety and Health Administration's
(OSHA) review of Nevada's workplace health and safety State Plan
Program. We respectfully request that you ``offer-up'' this cover
letter and our testimony to be entered into the hearing record.
OSHSPA represents the 27 states and territories that have chosen to
enforce occupational health and safety laws within their jurisdictions.
Our organization and our individual member States have historically
worked very closely with federal OSHA to address common issues and
common goals related to the safety and health of America's workers. We
view our relationship with OSHA as a cooperative effort and believe
that we provide unique contributions toward the attainment of our
common goals.
We further believe that the operational issues identified in Nevada
are not indicative of the situation in other State Plan States. We
believe that the majority of State Plan monitors in OSHA regional
offices have done an excellent job of working with the States. We
welcome the upcoming evaluations as an opportunity to improve our
programs and to provide federal OSHA with insights to improving its own
enforcement and monitoring programs.
The hearing on October 29th highlighted several areas which do have
a significant impact on the ability of State Plan States to ensure that
our programs are at least as effective as that of federal OSHA. These
areas are summarized here and are discussed in more detail in the
attached testimony.
Equitable Funding--A process must be established to accurately and
fairly address the budgetary requirements of State Plan Programs. The
total OSHA budget in FY 2009 was $515 million dollars. The total amount
allocated to State Plan programs was $93 million. In addition to
matching those funds, State Plans had to contribute an additional $91.8
million in overmatching funds in an effort to maintain effective
programs. Congress should fully fund 50% of the costs of State Plan
Programs.
Effective Partnership--Maximum effectiveness and efficiency of both
federal OSHA and State Plan States will only be achieved if we work
collaboratively to address key enforcement issues. Conversely, if
federal OSHA seeks to impose a ``one size fits all'' approach in every
jurisdiction, it invalidates one of the primary intents of allowing
State Plans. States invest a great deal of time and resources to ensure
their programs focus on the industries and demographics of their
specific state. State Plans are not contractual services, but rather
grants with required matching funds and significant overmatching state
funds. Congress should encourage a true Federal/State partnership
between OSHA and State Plan Programs in the areas of strategic
planning, policy and standards development, and legislative
initiatives.
Monitoring Criteria--Congress should encourage OSHA to work
cooperatively with State Plan States to review current monitoring
guidelines, make improvements where needed, and establish benchmarks
for both State Plan Programs and federal OSHA. The benchmarks should
include staffing levels, federal/state funding levels, training,
equipment, quality control, internal auditing and outcome measures.
State Responsibility--In enacting the Occupational Safety and
Health Act of 1970, Congress declared its purpose ``* * * to assure
every working man and woman in the Nation safe and healthful working
conditions * * * by encouraging the States to assume the fullest
responsibility for the administration and enforcement of their
occupational safety and health laws * * * .'' States cannot assume full
responsibility for their enforcement programs unless they have full
authority to manage their enforcement programs. Congress and OSHA
should resist reactionary requests to adopt legislation that would make
it easier for OSHA to assert concurrent jurisdiction in State Plans.
We hope that you will consider our comments as an attempt to
improve the safety and health environment in every American workplace.
There should be no question that we are totally dedicated to achieving
this goal. In that regard, we would be happy to participate in any
future hearings by your committee on this topic. If you would like more
information about our programs or have any questions regarding our
position on these matters, please contact me at 919-807-2863 or
[email protected] .
Sincerely,
Kevin Beauregard, CSP, CPM,
Chair, Occupational Safety and Health State Plan Association.
______
Prepared Statement of the Occupational Safety and Health State Plan
Association (OSHSPA)
When OSHA was established, Congress specifically encouraged states
to develop their own safety and health plan programs, to provide
enforcement and compliance assistance activities in their states.
Section 18 of the Occupational Safety and Health Act (OSH Act)
authorizes states to administer a state-operated program for
occupational safety and health, provided the programs are ``at least as
effective'' as federal OSHA. Congress envisioned a comprehensive
national program that would provide safety and health protection in all
U.S. States and Territories. Prior to the creation of OSHA, many states
had already been operating programs to protect their workers.
Today, the 27 states and territories that operate a State Plan
Program for workplace safety and health work together through the
Occupational Safety and Health State Plan Association (OSHSPA) to
address common issues and facilitate communications between the States
and federal OSHA. State programs have made major contributions in the
area of occupational safety and health and have helped drive injuries,
illnesses and fatalities to all time low levels. It makes sense for
State Plan Programs and OSHA to work together to develop strategies for
making jobsites safer and to share methods that will work on both a
national and state level.
OSHSPA does not view occupational safety and health as a partisan
issue. The OSH Act was established ``to assure safe and healthful
working conditions for working men and women; by authorizing
enforcement of the standards developed under the Act; by assisting and
encouraging the states in their efforts to assure safe and healthful
working conditions; by providing research, information, education and
training in the field of occupational safety and health; and for other
purposes.''
In order to meet the original intent of the OSH Act, OSHSPA firmly
believes that a ``balanced approach'' within OSHA and State Plan
Programs is required. We believe the most effective approach includes
strong, coordinated programs that address enforcement, education and
outreach, and consultation. The lack of commitment to any of these
three elements will eventually lead to an ineffective OSHA program.
State Plan Programs and OSHA share common goals regarding
occupational safety and health. Over the years we have formed many
positive relationships and have achieved many successes through
cooperation between OSHSPA members and OSHA staff as we worked side-by-
side on numerous projects and in response to nationwide catastrophic
events. Those successes prove that OSHA has many positive attributes
and talents to share with State Plans and, likewise that State Plans
have many positive attributes and talents to share with OSHA.
One of the many benefits of State Plan Programs is the flexibility
afforded states to address hazards that are unique or more prevalent in
particular states, or are not already being addressed by OSHA. In many
instances, State Plans have passed more stringent standards or
additional standards that do not exist on the federal level, while OSHA
labors through the standard adoption process that frequently takes not
only years but decades. These include State regulations such as, but
not limited to: cranes and derricks , communication towers, confined
space in construction, ergonomics, heat stress, reverse signal
operations, residential fall protection, tree trimming, workplace
violence, comprehensive safety and health programs, safety and health
committees and lower chemical permissible exposure limits (PELS).
State Plan Programs have also developed innovative inspection
targeting systems directly linked to Workers' Compensation databases,
and special emphasis inspection programs covering such hazards as
residential construction, logging, food processing, construction work
zone safety, waste water treatment plants, and overhead high voltage
lines. Many states sponsor annual State Safety and Health Conferences
which bring training, networking and outreach to thousands of employees
and employers, and spread the word about the positive benefits of
providing safe and healthful workplaces. OSHSPA publishes annually the
Grassroots Workplace Protection report which highlights many of these
unique and innovative state initiatives (see: http://www.osha.gov/dcsp/
osp/oshspa/annualreport.html)
oshspa response to oral and written testimony at october 29th hearing
We would like to expand on some of the comments that Acting
Assistant Secretary Barab made at the October 29th hearing.
OSHSPA applauds the joint efforts of OSHA and the Nevada State Plan
to work together to identify and address legitimate issues and concerns
raised in the special evaluation of the Nevada program. OSHSPA also
very much welcomes the testimony of Acting Assistant Secretary Barab in
support of Congressional and Administration efforts to address the
current inadequate levels of funding for State Plan Programs (see below
discussion). We appreciate Mr. Barab's recognition of the value and
benefits that State Plan Programs provide to working men and women
around the country. OSHSPA looks forward to working closely with Mr.
Barab and the eventual permanent Assistant Secretary to work through
the many challenges that confront OSHA nationally and State Plan
Programs locally.
Funding of State Plans
Employers and employees in all states should be provided with
comparable levels of occupational safety and health protections. While
Congress envisioned that the partnership between federal OSHA and the
State Plans would include federal funding of 50 percent of the costs,
the federal portion for State Programs has diminished significantly
over the years. Although State Plans operate in 27 States and
Territories and account for approximately 60 percent of all enforcement
activity, State Plans received only 18 percent of the total OSHA Budget
in FY2009.
State Plans cover approximately 40 percent of private sector
workers nationwide and more than 10 million public sector workers. The
total OSHA budget in FY 2009 was $515 million. The total amount
allocated to State Plan enforcement programs was $93 million. In
addition to matching those funds, states contributed an additional
$91.8 million in overmatching funds in an effort to maintain effective
programs. However, due to the current nationwide economic situation,
many states will likely have to decrease their overmatch contributions
in the coming year. The overall current funding level of State Plan
Programs is approximately 66.5% state funding and 33.5% federal
funding.
OSHA has announced that it will be adding 130 new inspectors in FY
2010 in addition to those positions added in FY2009. Meanwhile, many
states have been eliminating positions, holding positions vacant and
furloughing employees due to the lack of federal funding. In addition,
some states have been unable to send compliance officers to training at
the OSHA Training Institute (OTI) due to budget constraints and OTI has
often been unable to provide training for states that request it due to
insufficient space in, and frequency of, classes. The retention of
trained personnel in some states is undoubtedly affected in many cases
by insufficient budgets. Data presented by federal OSHA as recently as
last summer show that Nevada OSHA's base grant for enforcement is
``underfunded'' by almost $1.1 million. Additionally, the same data
indicated that eleven other State Plans are collectively
``underfunded'' by more than $13 million.
There may be a time in the not so distant future when some states
may opt out of having a state-administered program, simply due to the
ever increasing burden of providing well beyond 50% of the program
funding. If this comes to pass, the federal government will need to
allocate 100% of the funding to provide equivalent enforcement. To
prevent this from occurring and based on the original intent of
Congress, the long term goal should be to fully fund 50% of State Plan
Programs.
Although the number of employers and employees covered by State
Plan Programs continues to increase in most states, the net resources
to address workplace hazards in the State Plan Programs have declined
due to inflation and lack of funding from Congress. The potential
impacts, if this trend continues, are reduced enforcement and outreach
capabilities and smaller reductions in injuries, illnesses and
fatalities.
A process must be established to accurately and fairly address the
budgetary requirements of State Plan Programs. Insufficient federal
funding poses the most serious threat to the overall effectiveness of
both State Plans and federal OSHA. If the intent of Congress is to
ensure OSHA program effectiveness, this issue must be adequately
addressed. OSHSPA urges Congress to establish a process to accurately
and fairly address the budgetary requirements of State Plan Programs.
Congress Should Encourage a True Federal/State Partnership in
Occupational Safety and Health
Past and current OSHA administrations have all espoused the
benefits of State Plan Programs and OSHA being ``partners.'' OSHSPA is
fully supportive of a credible and meaningful partnership with federal
OSHA and we encourage Congress to support such partnership to make it a
reality. Our State Plan Programs are not merely an extension of federal
OSHA; we represent distinct and separate government entities operating
under duly elected governors or other officials and in addition to the
protocols provided by Congress and federal OSHA, also operate under
state constitutions and legislative process. State Plans are not just
more ``OSHA offices'' and are not intended to be identical to federal
OSHA, but rather to operate in such a manner as to provide worker
protection at least as effectively as OSHA. Words such as
``transparency,'' ``partnership,'' ``one-OSHA'' and ``one-voice'' have
been circulating for years, in regard to the desired relationship
between State Plans and OSHA. Since we all share the common goal of
improving nationwide occupational safety and health conditions, this
would appear to make perfect sense. However, in reality there has often
been an unequal ``partnership'' between OSHA and State Plans,
especially when it comes to policy development, funding, and program
implementation.
Similar to OSHA, each State Plan Program is staffed with dedicated
occupational safety and health professionals with years of combined
experience. Although OSHSPA members' contributions could be an integral
part of the OSHA strategic planning process, our members are quite
often excluded from providing critical input. Often State Plans are not
brought into the discussion of important policies and plans to
implement those policies that directly affect our programs until all
the critical decisions have been made. The same can be said for OSHA's
development of its regulatory agenda and legislative initiatives. For
example, if, as noted in Mr. Barab's testimony, States are to be
mandated to implement new or continuing National Emphasis Programs,
States need to be genuinely involved in identifying what kind of
programs are needed and how they will be implemented. State Plan
Programs are not looking for preferential or special treatment, but
feel strongly that OSHA should work harder at establishing a true
``partnership'' with State Plan Programs and be more cognizant of the
effect that policy decisions have on State Plan Programs.
State Plan Monitoring Background
All members of OSHSPA are subject to regular federal OSHA
monitoring activities as a condition of maintaining a State Plan
Program and all States acknowledge responsibility for maintaining
programs at least as effective as OSHA. There are different sized State
Plan Programs throughout the United States with varying capabilities.
Likewise, there are different sized federal area offices with varying
capabilities in federal OSHA jurisdictions. Properly conducted, audits
and program monitoring can be helpful for all federal and State
programs in identifying both program strengths and weaknesses.
In addition to regular monitoring activities on a local, regional
and national level, there is also a rigorous State Plan approval
process in place for any State or Territory that desires to have a
state-run OSHA program. The approval process includes many minimum
requirements and obligations that must be met to ensure that the
eventual program is ``at least as effective as OSHA.'' Prior to
achieving final State Plan approval, States must also meet mandatory
benchmark staffing levels for safety and health enforcement officers.
Interestingly, although States are held to minimum staffing levels,
there are no such staffing benchmarks applied to federal jurisdictions.
As a result, many federal jurisdiction OSHA states have far fewer
enforcement officers and enforcement activities than those found in a
comparably sized State Plan jurisdiction. Although the State Plans
expect and accept that OSHA will conduct oversight and monitoring
activities, the criteria and expectations applied need to be universal
for both state and federal operations.
State Plan Monitoring Concerns
The members of OSHSPA have concerns regarding some of the testimony
at the October 29th hearing pertaining to OSHA's stated intent to
increase monitoring of State Plan Programs. Acting Assistant Secretary
of OSHA Jordan Barab indicated in a recent OSHA press statement and
again during the hearing that ``as a result of the deficiencies
identified in Nevada OSHA's program and this administration's goal to
move from reaction to prevention, we will strengthen the oversight,
monitoring and evaluation of all state programs.'' As noted above,
State Plan Programs are not opposed to OSHA monitoring their programs,
and even welcome constructive review and analysis of state operations.
However, the statement itself appears contradictory in that the
announced increased oversight, monitoring and evaluation activity all
appear to be ``reactionary'' in response to the Nevada findings, as
opposed to preventative in nature and design.
We feel that this statement and other similar statements indicate
that some within OSHA and perhaps elsewhere have a preconceived notion
that there are significant deficiencies in all State Plan Programs.
OSHA appears to be drawing from one State Plan Program's difficulties
the broad generalization that there must be problems in all State Plan
Programs and therefore a need for intensive on-site monitoring
activities.
Regular auditing and monitoring based on understood and well-
defined criteria and measures of all Occupational Safety and Health
Programs, including federal OSHA, would be helpful to better ensure
overall quality of our national program. As OSHA has announced that
they will be conducting additional monitoring activities of all State
Plan Programs for quality control, it would seem prudent that they
would also be planning to conduct similar monitoring activities of
their own offices. All federal Area Offices should be given the same
in-depth evaluation that is planned for all State Plan Programs over
the next six to nine months. Acting Assistant Secretary Barab indicated
in his testimony that OSHA would make the results of their increased
State Plan Program monitoring publicly available. Likewise, OSHA should
make all audits of their national, regional and area offices publicly
available. If the goal of OSHA and Congress is to better ensure
equivalent workplace safety and health protection for all employers and
employees nationwide, then should not OSHA be held to the same quality,
performance and staffing levels to which State Plan Programs are being
held?
Prior to conducting more comprehensive State Plan monitoring
activities, OSHA and the States should establish well-defined
performance measures and goals for both States and OSHA. Among other
items, these benchmarks should include staffing levels, federal/state
funding levels, training, equipment, quality control, internal auditing
and outcome measure performance for both State Plans and federal OSHA.
Following the establishment of those benchmarks, there should be
regular audits of both State Plan Programs and OSHA national, regional
and area offices against those benchmarks. As Acting Assistant
Secretary Jordan Barab indicated in his testimony, State Plans should
be included and involved in the establishment of these benchmarks and
the monitoring process.
Acting Assistant Secretary Barab also stated during his testimony
that, although the current OSHA administration has not taken a position
on potential legislative changes regarding measures against State
Plans, he has heard of suggestions that would make it easier for OSHA
to assert concurrent jurisdiction in State Plans. According to Acting
Assistant Secretary Barab, this measure could be utilized whenever OSHA
believed a State had not addressed OSHA's concerns satisfactorily in
regards to the ``at least as effective'' requirement. This could allow
OSHA to proceed with assuming concurrent jurisdiction without having to
go through the established process of notification via federal
register, hearings and the appeal process currently afforded State Plan
Programs that have been granted final approval status. The mere fact
that OSHA, and perhaps Congress, are entertaining these suggestions is
very disconcerting, as it would appear to disallow a State Plan Program
the opportunity to sufficiently respond to perceived deficiencies. We
believe it is far too premature to even consider such an approach.
For instance, the ``at least as effective as OSHA'' status is a
constantly moving target which compares mandated activity trends and
policies within federal OSHA with each State Plan. Currently, the
monitoring activities center on mandated activities and indicators such
as, but not limited to: percent serious rate of violations cited,
contestment rates, penalties assessed and penalties retained. Some of
these items individually interpreted can lead to conclusions that are
not factually based. For instance, OSHA's own policy decisions can
affect the percent serious rate, but not anyone's program
effectiveness. For example, OSHA has adopted a focused construction
inspection policy that excludes issuing non-serious violations for
items abated during the inspection. Individual State Plans may be more
effective than OSHA by not adopting this policy and by continuing to
cite all hazardous conditions noted. As a result, those inspections
that qualify for focused inspections on a federal level could have a
100% serious rate, when in reality the percentage of serious hazards
identified is much lower (as OSHA does not issue citations for those
non-serious hazards abated during their focused inspection, it would
affect the rate).
Likewise, grouping or combining violations noted on an inspection
can have a significant impact on the percent serious rate, even when
all items are cited. While each of these mandated measures may be worth
reviewing, the overall effectiveness of a program should be focused on
activities associated with quality of staff, program performance and
outcome measures associated with the impact of the program on overall
occupational safety and health.
Closing Remarks
Together State Plan Programs and OSHA can successfully improve
workplace conditions and continue to drive down occurrences of
injuries, illnesses and fatalities. We should always be working toward
program improvement with the single goal of having a positive impact on
nationwide occupational safety and health. However, establishing an
``us'' and ``them'' relationship between OSHA and State Plan Programs,
which appears to be the direction we are moving, will do little to
enhance nationwide workplace safety and health.
OSHA, State Plan Programs and Congress need to join forces to best
ensure workplace injuries, illnesses and fatalities continue to decline
nationwide. There should be a true partnership between OSHA and State
Plan Programs to ensure all employers and employees are afforded
equivalent workplace protections nationwide. Efforts should be made to
ensure State Plan partners are included in the OSHA strategic planning
and policy development process. OSHA should work to complete national
regulations in a timely manner. OSHA and State Plan Programs should be
held equally accountable regarding performance, and matching federal
funding should be provided to State Plans as Congress originally
intended. These measures together will do more to enhance nationwide
occupational safety and health than any other measures being considered
at this time. Thank you for the opportunity to provide written
testimony.
______
[Letter, dated August 31, 2007, from John Olaechea
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
------
[Questions for the record and their responses follow:]
[Via Email],
November 6, 2009.
Hon. Jordan Barab, Acting Assistant Secretary,
Occupational Safety and Health Administration, U.S. Department of
Labor, Washington, DC.
Dear Assistant Secretary Barab: Thank you for testifying at the
Committee's hearing on ``Nevada's Workplace Health and Safety
Enforcement Program: OSHA's Findings and Recommendations,'' held on
Thursday, October 29, 2009.
I had additional questions for which I would like written responses
from you for the hearing record.
1. While some state plans have enforcement and abatement strategies
which are more effective than OSHA's, it is also troubling that the
average dollar amount for penalties issued by state plans for serious
violations in the private sector are only about 65% of federal OSHA's,
if you exclude California which has a $25,000 maximum penalty compared
with $7,000 in federal OSHA. State plans lag federal OSHA in the
percentage of higher gravity violations, such as serious or willful
with only 46% of the violations; whereas about 80% of OSHAs violations
are for higher gravity violations.
a. Why do state plans, on average, tend to fall so far behind
federal OSHA's effectiveness in finding and citing higher gravity
violations? Is this a function of targeting? Or are there other
explanations?
b. Why are state plans assessing penalties, on average, at 65% of
the rate of federal OSHA for serious violations in private facilities?
2. Some states receive as little as 20% of their funding from
federal OSHA. What should be done to better equalize funding, and
should there be a minimum amount provided by OSHA to a state plan? If
so, what should that floor be?
a. There were 340 CASPA filed since 2000. How many were deemed
valid or otherwise meritorious by OSHA? How many had no merit?
b. Does OSHA plan to assess the adequacy of federal OSHA's reviews
of previously filed CASPAs?
c. Is your office routinely notified of a CASPA or an investigation
regarding a CASPA? Or does this information generally held by the
Regional Administrators office without headquarters involvement?
Please send your written response to the Committee on Education and
Labor staff by COB on Monday, November 16, 2009--the date on which the
hearing record will close. If you have any questions, please contact
the Committee. Once again, we greatly appreciated your testimony at
this hearing.
Sincerely,
George Miller, Chairman.
______
Responses to Questions for the Record From Mr. Barab
Question: While some state plans have enforcement and abatement
strategies which are more effective than OSHA's, it is also troubling
that the average dollar amount for penalties issued by state plans for
serious violations in the private sector are only about 65% of federal
OSHA's, if you exclude California which has a $25,000 maximum penalty
compared with $7,000 in federal OSHA. State plans lag federal OSHA in
the percentage of higher gravity violations, such as serious or willful
with only 46% of the violations; whereas about 80% of OSHA's violations
are for higher gravity violations.
Why do state plans, on average, tend to fall so far behind federal
OSHA's effectiveness in finding and citing higher gravity violations?
Is this a function of targeting? Or are there other explanations?
State Plans conduct nearly twice as many inspections and cite
nearly twice as many violations as Federal OSHA (59,723 v. 38,847 and
129,075 v. 87,923 in FY09 [preliminary data]), although they find on
average about the same number of violations per inspection. State Plans
have a proportionately higher number of inspectors than OSHA and many
of the State plans are in smaller States with less heavy industry. The
fewer violations cited as serious, willful, or repeat may be the result
of differences in targeting, with State Plans inspecting a greater
number of less hazardous and smaller establishments than Federal OSHA.
A lower percentage of serious, willful, and repeat citations may also
be attributed to differences in violation classification, or problems
with hazard recognition, different priorities in settlement of cases,
or different State enforcement philosophies, including citing all
other-than-serious violations even if immediately abated. We intend to
take a closer look at these issues as part of the baseline State Plan
special evaluation studies I described in my testimony, the reports of
which should be issued sometime next spring.
Question: Why are state plans assessing penalties, on average, at
65% of the rate of federal OSHA for serious violations in private
facilities?
State Plans have their own penalty calculation and penalty
reduction policies and procedures that may differ from Federal OSHA's
though they must still be ``at least as effective.'' Several of the
States have penalty reduction policies similar to Federal OSHA's
previous Quick-Fix, which permits penalty reductions in certain
circumstances as an incentive for employers to immediately abate
hazards, agree not to contest, and to quickly eliminate hazards that
could lead to employee injury, illness, or death. All State Plans have
statutory penalty authority equivalent to the OSH Act and their
policies and procedures related to penalties must be submitted and
reviewed by OSHA. The baseline studies we will be conducting will help
us determine through case file reviews how differences in policy are
affecting penalty levels and whether such differences are meaningful
and appropriate. In addition, OSHA recently re-issued a revised Field
Operations Manual. States must revise their procedures and adopt an
equivalent Manual and identify for OSHA any differences in their
procedures. OSHA will be paying close attention to the differences in
State procedures during our review of State submissions.
Question: Some States receive as little as 20% of their funding
from federal OSHA. What should be done to better equalize funding, and
should there be a minimum amount provided by OSHA to a state plan? If
so, what should that floor be?
Though the Act authorizes OSHA to award matching grants to States
of up to 50% of their operational costs, OSHA's State Plan funding
levels are set as part of the agency's annual appropriation and not by
money that individual states have available to match Federal funding.
Currently, 21 of the 27 approved State Plans contribute additional
State funds over and above that amount which OSHA has available to
offer them for State Plans. The other six States provide the exact 50%
match to the Federal funds made available to them.
In the beginning of the program, OSHA was able to provide full 50%
Federal funding for each State at its requested level at plan approval.
Over the years, many States obtained additional State funding to expand
their programs, but matching OSHA grant funding increases did not keep
pace with those State increases. State contributions in excess of the
required 50% match demonstrated the States' commitment to their OSHA
programs. In FY 2010, the Administration requested an increase of
nearly $14 million to help address this funding disparity.
It is not realistic to equalize Federal funding among the States
without either a redistribution of current Federal grant funds among
the States or the Congressional approval of a very significant increase
in Federal grant funding to match the current State contributions. It
is difficult to see how either option is a practical alternative. The
fifty percent funding goal established by the Act is a reasonable
standard as it assures that States that choose to operate such OSHA-
approved State Plans have a level of commitment to the program at least
equal to that of the Federal government. Additional State contributions
above the required 50% match, which may vary from year to year
depending on State economic conditions, demonstrate their commitment to
occupational safety and health and allow opportunities for flexibility
and innovation.
Question: There were 340 CASPAs filed since 2000. How many were
deemed valid or otherwise meritorious? How many had no merit?
OSHA has automated data available back to 2004. Of the 167 CASPAs
filed and investigated by OSHA's Regional Offices from FY 2004 through
FY 2009, 94 or 56% resulted in a finding that State corrective action
was needed on one or more complaint items. CASPAs often contain
multiple complaint items. They also may deal with specific inspections
or investigations and reflect the unique concerns of the affected
complainant. They are sometimes filed long after the event in question.
Since enforcement action must occur within 6 months of the first
identification of a violation, it is often impossible to effect a
remedy for the specific case. In such situations, corrective action can
take the form of required changes in State policy, or requiring that
the State take steps to prevent a recurrence.
Question: Does OSHA plan to assess the adequacy of federal OSHA's
review of previously filed CASPAs?
As I indicated in my testimony before the Committee, we will be
undertaking increased oversight of the State plans beginning with a
baseline special evaluation of each State Plan, the reports of which
should be issued sometime next spring. The Special Studies will focus
on the State Plans' performance during FY 2009 and the Regions will
review any CASPAs investigated last fiscal year as part of that effort.
I will also be issuing new guidance to our Regions on responding to
CASPAs, both setting timeframes for response (60-90 days) and requiring
coordination with the National Office on complaints that raise concerns
about significant or systemic State performance issues.
Question: Is your office routinely notified of a CASPA or an
investigation regarding a CASPA? Or is this information generally held
by Regional Administrator's office without headquarters involvement?
Regions are responsible for investigating CASPAs and are asked to
provide copies of their final actions to the National Office. Though
OSHA has a computerized database for tracking CASPAs, the agency has
found its overall utility limited in helping to track CASPAs. We
anticipate that deployment of the agency's new data system, the OSHA
Information System (OIS), will provide much greater capability for
tracking CASPAs. Also, the new guidance that we will issue on CASPAs
will require closer adherence to these requirements and will also
require submission and coordination of responses on CASPAs that raise
significant issues, receive public attention, or otherwise are of
concern to the Regional Administrator. I will look to our Regional
Administrators to assure that CASPAs are fully and appropriately
investigated and that the States take appropriate follow-up action.
______
[Via Email],
November 6, 2009.
Mr. Donald Jayne, Administrator,
Division of Industrial Relations, Department of Business and Industry,
State of Nevada, Carson City, NV.
Dear Mr. Jayne: Thank you for testifying at the Committee's hearing
on ``Nevada's Workplace Health and Safety Enforcement Program: OSHA's
Findings and Recommendations,'' held on Thursday, October 29, 2009.
I had additional questions for which I would like written responses
from you for the hearing record.
1. What explains the fact that Nevada OSHA issued only 28% of its
violations as ``serious'' for private sector facilities in 2008
compared with federal OSHA which cited approximately 76% of its
violations as serious in that same time frame?
2. In terms of future performance, will Nevada OSHA's be setting a
goal for percentage of violations cited as serious? If so, what is that
goal?
3. The OSHA recent review found that Nevada OSHA is not targeting
enough of the higher hazard facilities in your state.
What specifically are you going to do to improve targeting
so that Nevada is at least as effective as federal OSHA in targeting
higher hazard facilities?
4. Please explain why Nevada OSHA's funding formula has a
comparatively small share (20%) of federal funding. Based on OSHA data,
Nevada's state OSHA program receives the second smallest amount of
federal funding of all state plan states--after Washington state which
only receives 17% federal funding.
If the formula were modified so that Nevada received added
funds, would Nevada OSHA increase its budget, or keep its budget flat
and simply reduce the share of state appropriated funds?
5. Did the Nevada exclusive state workers' compensation fund ever
provide resources to Nevada OSHA, and did its subsequent privatization
reduce funding that had previously gone to Nevada OSHA?
Please send your written response to the Committee on Education and
Labor staff by COB on Monday, November 16, 2009--the date on which the
hearing record will close. If you have any questions, please contact
the Committee. Once again, we greatly appreciated your testimony at
this hearing.
Sincerely,
George Miller, Chairman.
______
Responses to Questions for the Record From Mr. Jayne
Dear Chairman Miller: I appreciate the opportunity to address the
questions raised in your November 6, 2009 correspondence. The following
responses are submitted by Nevada OSHA for inclusion in the hearing
record.
1. What explains the fact that Nevada OSHA issued only 28% of its
violations as ``serious'' for private sector facilities in 2008
compared with federal OSHA, which cited approximately 76% of its
violations as serious in that same time frame?
Response: There are several reasons why Nevada OSHA's serious rate
was low in comparison to federal OSHA results. First, the special study
revealed that NV OSHA was over-grouping citations. This had not been
cited as a problem during previous fed OSHA audits performed by Region
IX. As a result, NV OSHA has discontinued this practice, which was
inadvertent but impacted the percentage of serious violations results.
Second, as acknowledged, Nevada OSHA's staff experience level is
developing, but is not where we want it to be. With additional OTI
training, NV OSHA enforcement staff will gain expertise and improve as
experience is gained. In addition, Nevada OSHA is restructuring and
creating a Training and Standardization function which will be
responsible for improving the hazard recognition of our staff members.
Third, the two major population centers in Nevada (Reno-Washoe
County and Las Vegas-Clark County) have received a significant number
of inspections by the 41 Nevada CSHO's.
Despite individual observations to the contrary, we believe our
inspections are having a positive impact. We believe with additional
training our impact on employers with high incidence rates will also
improve.
Finally, this question and the one that follows (No. 2) imply that
State Plan Programs are not ``at least as effective as'' federal OSHA
unless they ``match'' federal OSHA inspection statistics. Nevada, like
other members of the Occupational Safety and Health State Plan
Association (OSHSPA) favor another approach. As noted in the written
testimony submitted by OSHSPA on 11/10/09:
[T]he `at least as effective as [federal] OSHA' status is a
constantly moving target. * * * Currently, the monitoring activities
center on mandated activities and indicators such as, but not limited
to: percent serious rate of violations cited, contestment rates,
penalties assessed and penalties retained. Some of these items
individually interpreted can lead to conclusions that are not factually
based.
Likewise, grouping or combining violations noted on an inspection
can have a significant impact on the percent serious rate, even when
all items are cited. While each of these mandated measures may be worth
reviewing, the overall effectiveness of a program should be focused on
activities associated with quality staff, program performance and
outcome measures associated with the impact of the program on overall
occupational safety and health.
Thus, while Nevada is concerned about the low percentage of
``serious'' citations issued in 2008, it is also wary of offering
explanations which could be interpreted as a pledge to simply ``match''
federal OSHA inspection statistics without regard of the impact on
occupational safety and health.
2. In terms of future performance, will Nevada OSHA's be setting a
goal for percentage of violations cited serious? If so, what is that
goal?
Response: NV OSHA believes the steps outlined in Question 1 will
significantly increase our state-wide serious rate, and improvement
should be reflected almost immediately due to the way we are now
grouping citations. In the short term (next 24 months), our primary
focus will be on CSHO training, hazard recognition, citation
classification, and legal sufficiency. Once we believe the CSHO's
skills are at a journeyman's level, we will expect a high serious rate.
A range of 60% to 80% will be targeted. However, as indicated above,
our targeting of a range of 60% to 80% should not be interpreted as a
pledge by Nevada to ``match'' federal OSHA ``serious'' citation
statistics without regard of the impact on occupational safety and
health.
3. The recent OSHA review found Nevada OSHA is not targeting enough
of the higher hazard facilities in your state.
What specifically are you going to do to improve targeting so that
Nevada is at least as effective as federal OSHA in targeting higher
hazard facilities:
Response: First, we are in contact with OSHA officials to learn the
process of developing targeting lists in high hazard facilities,
measuring our success as we inspect, and then fine tuning the lists
when our inspection efforts are not productive. Second, we are
currently updating our targeting lists and our local emphasis program
lists and expect to have that process completed by January 1, 2010.
Third, we are attempting to gain access to real-time workers
compensation claim information so that we can focus on the companies
that are having the highest WC claims.
4. Please explain why Nevada OSHA's funding formula has a
comparatively small share (20%) of federal funding. Based on OSHA data,
Nevada's state OSHA program receives the second smallest amount of
federal funding of all state plan states--after Washington state which
only receives 17% federal funding.
If the formula were modified so that Nevada received added funds,
would Nevada OSHA increase its budget, or keep its budget flat and
simply reduce the share of state appropriated funds?
Response: It is NV OSHA's understanding that the federal funding
formula was developed in the late 1980's and has not been significantly
modified since. With the dramatic growth that Nevada experienced in the
last twenty years, significant resources were needed for Nevada to
develop and secure final state plan approval and to maintain the Nevada
OSHA state program. Final approval for Nevada to be a state plan state
was obtained in April of 2000.
As federal funding has been essentially flat during this time
period, the State of Nevada has dramatically increased their financial
commitment to NV OSHA. As Nevada OSHA needed more funding and matching
funds were not available from Federal OSHA, Nevada's agency budgets
were developed and submitted for review and approved in accordance with
Nevada budgetary procedures. This process involves both Executive
Branch and Legislative Branch review and approval to authorize the NV
OSHA budget requests.
Any additional funding received would be subject to the existing
statutory oversight provided by Nevada's executive and legislative
branches. However, I would be advocating increasing the overall budget
to address NV OSHA's need for additional resources rather than ``simply
reduce the share of state appropriated funds''.
5. Did the Nevada exclusive state workers' compensation fund ever
provide resources to Nevada OSHA, and did its subsequent privatization
reduce funding that had previously gone to Nevada OSHA?
Response: We have not been able to find any specific allocation of
resources from the State Industrial Insurance System (SIIS), the
exclusive state fund, that were provided to Nevada OSHA. The subsequent
privatization of SIIS did not reduce funding to NV OSHA, as the
assessment formula is applied to all workers' compensation insurers in
Nevada. However, as one of the largest workers' compensation carriers
in Nevada, the succeeding entity, Employers Insurance Group, pays one
of the highest assessments for OSHA and SCATS funding requirements.
As evidenced by Nevada's willingness to step up and fund NV OSHA
activities and to work with Federal OSHA to correct deficiencies
outlined in the special report, we value the State Plan Program
approach. We look forward to working with our federal counterparts in a
revitalized partnership in which both entities strive to improve
operational efficiencies incorporating both reasonable and effective
federal oversight.
Nevada, individually, and as a member of OSHSPA, stands ready join
forces with federal OSHA. As I have stated many times, Nevada's State
Plan and Federal OSHA share the same goals regarding occupational
safety and health: to assure safe and healthful work conditions for
Nevada's working men and women. If you need additional information
please let me know.
______
[Whereupon, at 11:29 a.m., the committee was adjourned.]