[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


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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
--------------------------------------------------------------------------------------------------------------------------------------------------------

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                                 ______
                                 
    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.]

                                 
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