[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
IS OSHA UNDERMINING STATE EFFORTS TO PROMOTE WORKPLACE SAFETY?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 16, 2011
__________
Serial No. 112-29
__________
Printed for the use of the Committee on Education and the Workforce
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Bob Goodlatte, Virginia Lynn C. Woolsey, California
Duncan Hunter, California Ruben Hinojosa, Texas
David P. Roe, Tennessee Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania John F. Tierney, Massachusetts
Tim Walberg, Michigan Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee David Wu, Oregon
Richard L. Hanna, New York Rush D. Holt, New Jersey
Todd Rokita, Indiana Susan A. Davis, California
Larry Bucshon, Indiana Raul M. Grijalva, Arizona
Trey Gowdy, South Carolina Timothy H. Bishop, New York
Lou Barletta, Pennsylvania David Loebsack, Iowa
Kristi L. Noem, South Dakota Mazie K. Hirono, Hawaii
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
TIM WALBERG, Michigan, Chairman
John Kline, Minnesota Lynn C. Woolsey, California,
Bob Goodlatte, Virginia Ranking
Todd Rokita, Indiana Donald M. Payne, New Jersey
Larry Bucshon, Indiana Dennis J. Kucinich, Ohio
Trey Gowdy, South Carolina Timothy H. Bishop, New York
Kristi L. Noem, South Dakota Mazie K. Hirono, Hawaii
Dennis A. Ross, Florida George Miller, California
Mike Kelly, Pennsylvania
C O N T E N T S
----------
Page
Hearing held on June 16, 2011.................................... 1
Statement of Members:
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Woolsey, Hon. Lynn, ranking minority member, Subcommittee on
Workforce Protections...................................... 4
Prepared statement of.................................... 9
Statement of Witnesses:
Beauregard, Kevin, chair, Occupational Safety and Health
State Plan Association (OSHSPA)............................ 31
Prepared statement of.................................... 33
Frumin, Eric, health and safety director, Change to Win...... 22
Prepared statement of.................................... 24
Gerstenberger, Peter, senior advisor for safety compliance
and standards, the Tree Care Industry Association.......... 16
Prepared statement of.................................... 18
Lewis, Elliot P., Assistant Inspector General for Audit,
Office of Inspector General, U.S. Department of Labor...... 12
Prepared statement of.................................... 13
Additional Submissions:
Mr. Beauregard:
Letter, dated October 12, 2010, from Hon. David Michaels,
Ph.D., MPH, Assistant Secretary, Occupational Safety
and Health Administration, U.S. Department of Labor.... 70
Table, ``FY 2010 Inspection Activity''................... 73
Press release, dated September 28, 2010.................. 74
Letter, dated May 13, 2011, to Mr. Michaels.............. 75
Chart, ``Federal OSHA and State Plan Funding FY2001-
FY2011''............................................... 77
Chairman Walberg:
Letter, dated May 31, 2011, from Mr. Michaels............ 58
Questions submitted for the record....................... 78
Response to questions submitted for the record........... 80
Ms. Woolsey:
Letter, dated June 14, 2011, from Ellen Widess, chief,
California OSHA........................................ 5
``Performance Measurement and Management at DOL and
Within OSHA''.......................................... 52
Letter, dated June 15, 2011, from Michael A. Silverstein,
M.D.................................................... 54
Letter, dated May 31, 2011, from Mr. Michaels............ 58
Table, ``Federal to State 100% Match Awards--FY 2009-
2011''................................................. 61
Michaels, Hon. David, Ph.D., MPH, Assistant Secretary,
Occupational Safety and Health Administration, U.S.
Department of Labor, post hearing comments............. 62
SHARP technical report, dated May 2011................... 64
IS OSHA UNDERMINING STATE EFFORTS
TO PROMOTE WORKPLACE SAFETY?
----------
Thursday, June 16, 2011
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:05 a.m., in
room 2175, Rayburn House Office Building, Hon. Tim Walberg
[chairman of the subcommittee] presiding.
Present: Representatives Walberg, Kline, Bucshon, Gowdy,
Ross, Woolsey, and Payne.
Staff present: Katherine Bathgate, Press Assistant/New
Media Coordinator; Casey Buboltz, Coalitions and Member
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Benjamin Hoog, Legislative Assistant; Ryan Kearney, Legislative
Assistant; Donald McIntosh, Professional Staff Member; Brian
Newell, Deputy Communications Director; Krisann Pearce, General
Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce
Policy; Linda Stevens, Chief Clerk/Assistant to the General
Counsel; Alissa Strawcutter, Deputy Clerk; Loren Sweatt,
Professional Staff Member; Joseph Wheeler, Professional Staff
Member; Kate Ahlgren, Investigative Counsel; Aaron Albright,
Minority Communications Director for Labor; Kate Ahlgren,
Minority Investigative Counsel; Tylease Alli, Minority Clerk;
Daniel Brown, Minority Junior Legislative Assistant; Brian
Levin, Minority New Media Press Assistant; Richard Miller,
Minority Senior Labor Policy Advisor; Megan O'Reilly, Minority
General Counsel; and Julie Peller, Minority Deputy Staff
Director.
Chairman Walberg. Good morning. A quorum being present, the
committee will come to order.
As I look around I see the leadership team here, all here.
That means that didn't overindulge at the president's party
last night.
We can't say that about the rest of the people necessarily.
But I hope not. Though all the cotton candy I had, I shouldn't
be here either, I guess.
I don't know how to control myself at a county fair. But it
was a nice evening, and I am glad we can get back to work today
though.
I would like to welcome our guests, and thank our witnesses
for sharing their thoughts and expertise on workplace safety
with this subcommittee.
This week's explosion at a chemical plant in southern
Louisiana reminds us the cause of worker safety requires
consistent vigilance. We are deeply grateful workers were not
injured in the accident. And we hope its cause will quickly be
determined so future incidents can be prevented.
The Louisiana accident also underscores the diverse safety
needs of our workforce. Certain jobs pose unique hazards and
require different safety standards, demonstrating once again
the need for federal policies that provide certainty and
flexibility to our workplaces.
The needs and priorities of businesses in my home state of
Michigan may be very different than those in Washington,
Tennessee, and Vermont or California. Job creators and workers
in rural communities may face different challenges than the
neighbors located in the nation's cities.
Rules and regulations handed down by Washington must
reflect this important reality. And that is why state
occupational safety and health programs are so important.
For more than 40 years, federal law has allowed states to
assume responsibility for the health and safety of its
workplaces. State plans are approved and monitored by the
federal Occupational Safety and Health Administration.
Today, 27 states and territories administer workplace
safety programs and the results of their efforts are
remarkable. According to the Occupational Safety and Health
State Plan Association, participating states conducted more
than 61,000 inspections and identified an estimated 130,000
workplace safety violations.
When compared to the federal safety program, state plans
generally lead to more workplace inspections and result in more
innovative safety solutions.
State plans are not without faults or weaknesses, however.
They strive to promote the best protections for their workers
and abide by the federal requirements that they be at least as
effective as federal safety standards.
Unfortunately as is far too often the case with federal
law, this catchy phrase has led to great confusion and
frustration.
As a report by the Department of Labor's inspector general
illustrates, defining an effective plan has proven a difficult
task for OSHA. In fact, the IG report found OSHA has not even
evaluated its own enforcement program, which raises the
question of how it could possibly measure the efficacy of state
efforts.
In recent years, OSHA has stepped up to its scrutiny of
state plans. And in many ways, this is welcomed.
We want to ensure every safety program is producing results
and protecting workers. However, OSHA has not experienced the
same level of scrutiny, which is why I will be asking the
Government Accountability Office to conduct a comprehensive
review of OSHA's enforcement program using the same standards
of success OSHA used to evaluate state plans.
As OSHA's scrutiny of the program has increased, so has the
administration's demands. The hallmark of the program's success
is its ability to easily adapt to the ever-changing needs of
local workplaces.
Dictating from Washington, D.C. what the workforce safety
priorities should be for Sacramento, California, or Concord,
New Hampshire will further drain scarce resources and undermine
the success of these state efforts to protect workers.
As the IG report states, and I quote--``OSHA required
states to make program changes, but did not explain how the
changes would improve effectiveness.''
This makes little sense. Especially at a time when the
federal government has failed to accurately determine the
success of its own worker safety program.
In conclusion, let me say that budgeting is about setting
priorities. And we all know these are tough fiscal times.
In recent years, Congress has short-changed the states,
failing to meet its commitment to fully fund this program. The
fault lies on both sides of the aisle. Working together, I am
sure we can find waste and inefficiencies in the Department of
Labor's budget that will help get our nation's fiscal house in
order and strengthen our support for this program.
Rather than undermining the success of state workplace
safety, our goal as policy-makers should be to improve these
important initiatives and encourage more states to take on the
responsibility.
If we do this, federal taxpayers will get a better return
on their investment. But more importantly, workers will be
better protected.
I look forward to working with my colleagues on ways to
strengthen state workplace safety programs.
I would now like to recognize the ranking member, Ms.
Woolsey, the senior democrat on the subcommittee, for her
opening remarks.
[The statement of Mr. Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman,
Subcommittee on Workforce Protections
Good morning. I would like to welcome our guests, and thank our
witnesses for sharing their thoughts and expertise on workplace safety
with the subcommittee. This week's explosion at a chemical plant in
southern Louisiana reminds us the cause of worker safety requires
constant vigilance. We are deeply grateful workers were not injured in
the accident, and we hope its cause will be quickly determined so
future incidents can be prevented.
The Louisiana accident also underscores the diverse safety needs of
our workforce. Certain jobs pose unique hazards and require different
safety standards, demonstrating once again the need for federal
policies that provide certainty and flexibility to our workplaces. The
needs and priorities of businesses in my home state of Michigan may be
very different than those in Washington, Tennessee, and Vermont. Jobs
creators and workers in rural communities may face different challenges
than their neighbors located in the nation's cities. Rules and
regulations handed down by Washington must reflect this important
reality.
That is why state occupational safety and health programs are so
important. For more than 40 years, federal law has allowed states to
assume responsibility for the health and safety of its workplaces.
State plans are approved and monitored by the federal Occupational
Safety and Health Administration.
Today, 27 states and territories administer workplace safety
programs and the results of their efforts are remarkable. According to
the Occupational Safety and Health State Plan Association,
participating states conducted more than 61,000 inspections and
identified an estimated 130,000 workplace safety violations. When
compared to the federal safety program, state plans generally lead to
more workplace inspections and result in more innovative safety
solutions. State plans are not without faults or weaknesses; however,
they strive to promote the best protections for their workers and abide
by the federal requirement that they be ``at least as effective'' as
federal safety standards.
Unfortunately, as is far too often the case with federal law, this
catchy phrase has led to great confusion and frustration. As a report
by the Department of Labor's Inspector General illustrates, defining an
effective plan has proven a difficult task for OSHA. In fact, the IG
report found OSHA has not even evaluated its own enforcement program,
which raises the question of how it could possibly measure the efficacy
of state efforts.
In recent years, OSHA has stepped up its scrutiny of state plans,
and in many ways, this is welcomed. We want to ensure every safety
program is producing results and protecting workers. However, OSHA has
not experienced this same level of scrutiny, which is why I will be
asking the Government Accountability Office to conduct a comprehensive
review of OSHA's enforcement program using the same standards of
success OSHA uses to evaluate state plans.
As OSHA's scrutiny of the program has increased, so has the
administration's demands. The hallmark of the program's success is its
ability to easily adapt to the ever changing needs of local workplaces.
Dictating from Washington D.C. what the workforce safety priorities
should be for Sacramento, California, or Concord, New Hampshire, will
further drain scarce resources and undermine the success of these state
efforts to protect workers. As the IG report states, ``OSHA required
states to make program changes, but did not explain how the changes
would improve effectiveness.'' This makes little sense, especially at a
time when the federal government has failed to accurately determine the
success of its own worker safety program.
In conclusion, let me say that budgeting is about setting
priorities and we all know these are tough fiscal times. In recent
years Congress has short-changed the states, failing to meet its
commitment to fully fund this program. The fault lies on both sides of
the aisle. Working together, I am sure we can find waste and
inefficiencies in the Department of Labor's budget that will help get
our nation's fiscal house in order and strengthen our support of this
program.
Rather than undermining the success of state workplace safety, our
goal as policymakers should be to improve these important initiatives
and encourage more states to take on this responsibility. If we do,
federal taxpayers will get a better return on their investment, but
more importantly, workers will be better protected.
I look forward to working with my colleagues on ways to strengthen
state workplace safety programs. I would now like to recognize Ms.
Woolsey, the senior Democrat of the subcommittee, for her opening
remarks.
______
Ms. Woolsey. Thank you, Mr. Chairman.
I truly appreciate the interest that this committee has in
providing oversight of the agencies within our jurisdiction
including OSHA.
However, I am disappointed that the majority failed to
invite OSHA, or schedule this hearing with sufficient advance
notice so that they could be available to present their views
on state plans, and the inspector general's report.
Since this is the second hearing focused on OSHA, it would
seem timely to invite Assistant Secretary Michaels to inform us
on OSHA's initiatives, and also, Mr. Chairman, to allow him to
respond to your concerns.
Many states have advised us that they work well with OSHA,
as they provide valued guidance and budget support. OSHA's
oversight also identifies states that fail to adequately
protect their workers.
For instance, OSHA's reviews have found that South Carolina
and Oregon have serious weaknesses. Their average penalties for
serious violations are less than $300. That is 70 percent below
the national average of $1,000, and does little to deter the
kind of violations that could cause serious injury or death.
OSHA also found significant weaknesses in my state of
California. They found that the state's workforce safety plan
impaired enforcement. In response, the legislature in
California enacted, and the governor signed, corrective
legislation.
I would ask, by the way, unanimous consent to submit for
the record, a letter that I received from Ellen Widess, the
chief of Cal/OSHA, that is in strong support of the partnership
between federal OSHA and the California State OSHA Plan.
I would be lax in not noting that this is the largest state
OSHA program in the country.
And here is the letter.
[The information follows:]
------
Chairman Walberg. Without objection, it will be included.
There is no objection.
Ms. Woolsey. Thank you.
In 2009, OSHA commenced a review of the Nevada State Plan,
after 25 workplace related deaths occurred over an 18-month
period.
It found that Nevada's inspectors were inadequately
trained. And that the state had actively discouraged inspectors
from issuing willful and repeat violations in fatality cases.
Since then, Mr. Chairman, OSHA has completed in-depth
reviews of 25 state OSHA programs, which hasn't happened since
1991, following the deaths of 25 workers trapped in a fire at
Imperial Food plants in North Carolina. As you commented, these
are positive developments that the committee should be
supporting.
The Inspector General recently issued recommendations that
it said would improve OSHA's evaluations of state workplace
safety programs to better determine their effectiveness.
On May 31st, OSHA provided a detailed written response to
the IG report that outlines the steps OSHA is taking to develop
effectiveness measures. OSHA stated that it will also continue
to rely upon its existing activity measures to ensure that
state plans are operating effectively and fulfilling federal
grant requirements.
Unfortunately, the work OSHA is doing to improve its state
review program is in jeopardy because the majority's budget
cuts funding for OSHA by 23 percent. Grants for state plans
will be cut by $25 million from the request of $105 million.
If this budget is approved for fiscal year 2012, OSHA will
be really up a tree without a paddle. No it is----
Chairman Walberg. Whatever you do in California.
Ms. Woolsey. Yes, I think I was putting two things together
here.
But so, Ranking Miller and I recently asked GAO to assess
the impacts of proposed budget cuts on the ability of state
plans to carry out their mission, and whether some state plans
may be forced to simply close down and turn their program back
to federal OSHA.
I also look forward to hearing from our witnesses--this is
a great group--whether these cuts will undermine states'
efforts to promote worker safety.
So, Mr. Chairman, incredibly 4,551 workers were killed on
the job last year alone. That is an average of 12 workers
killed each day.
Worker safety and health should not be a partisan political
issue. And I look forward to working with you to ensure that
we, and this committee, can make a better future for our
workers.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, Ranking Minority Member,
Subcommittee on Workforce Protections
Mr. Chairman, I appreciate the interest that this committee has in
providing oversight of the agencies within its jurisdiction, including
OSHA. However, I'm particularly disappointed that the majority failed
to invite OSHA, or schedule this hearing with sufficient advance notice
so that OSHA could be available to present its views on state plans and
the Inspector General's report. While this is the second hearing
focused on OSHA, it would seem timely to invite Assistant Secretary
Michaels to inform us on OSHA's initiatives.
Many states have advised us that they work well with OSHA, as they
provide valued guidance and budget support. OSHA's oversight also
identifies states that fail to adequately protect their workers. For
instance, OSHA's reviews have found that South Carolina and Oregon have
serious weaknesses. Their average penalties for serious violations are
less than $300. That is 70 percent below the national average of
$1,000, and does little to deter the kind of violations that could
cause serious injury or death.
OSHA also found significant weaknesses in California's state
workforce safety plan that impaired enforcement; in response, the
legislature enacted and the Governor signed corrective legislation. I
would ask unanimous consent to submit for the record, a letter I
received from Ellen Widess, the Chief of CalOSHA that is in strong
support of a strong partnership between federal OSHA and the California
State plan. I would note this is the largest state OSHA Program in the
country.
In 2009, OSHA commenced a review of the Nevada State Plan after 25
workplace related deaths occurred over an 18-month period. It found
that Nevada's inspectors were inadequately trained and that the state
had actively discouraged inspectors from issuing willful and repeat
violations in fatality cases.
Since then, OSHA has completed in-depth reviews of 25 state OSHA
programs, which hasn't happened since 1991, following the deaths of 25
workers trapped in a fire at the Imperial Foods plant in North
Carolina. These are positive developments that the committee should be
supporting.
The Inspector General recently issued recommendations that it said
would improve OSHA's evaluations of state workplace safety programs to
better determine their effectiveness. On May 31, OSHA provided a
detailed written response to the IG report that outlines the steps it
is taking to develop ``effectiveness'' measures. OSHA stated that it
will also continue to rely upon its existing ``activity'' measures to
ensure that State Plans are operating effectively and fulfilling
federal grant requirements.
Unfortunately, the work OSHA is doing to improve its state review
program is in jeopardy because the majority's budget cuts funding for
OSHA by 23 percent. Grants for state plans will be cut by $25 million
from the request of $105 million, if this budget is approved for Fiscal
Year 2012.
Ranking Member Miller and I recently asked GAO to assess the
impacts of proposed budget cuts on the ability of state plans to carry
out their mission, and whether some state plans may be forced to simply
close down and turn their program back to Federal OSHA.
I also look forward to hearing from our witnesses whether these
cuts will undermine states' efforts to promote worker safety.
Mr. Chairman, incredibly, 4,551 workers were killed on the job last
year. That is an average of 12 workers killed each day. Worker safety
and health should not be a partisan political issue. I think we can do
better in future Subcommittee hearings to assure that they are
informative and balanced. Thank you.
______
Chairman Walberg. I thank the gentlelady.
And I would suggest that we should change that to up a tree
without a noose. That is all I care about.
OSHA, in reference to OSHA being here or not, OSHA did
respond to the IG report back on May 31st. It is a matter of
our record.
They responded extensively to that. There was 7 days
notice, which is within the committee rules for this hearing.
And the minority is and was always able to call OSHA, and would
certainly give that opportunity again.
Ms. Woolsey. So would the gentleman yield on that 7 day----
Chairman Walberg. I would yield.
Ms. Woolsey. I know you did what the committee is expected
to do under the rules.
But the department, the Labor Department, has their own
rule that in order to prepare adequately and do a good job when
they come before the Congress, they really ask for 14 days
notice.
And we know that. We can do that.
Chairman Walberg. We will do our best.
But I am delighted we have witnesses here today that I
think are a great panel for us to hear from.
So pursuant to committee Rule 7C, all members will be
permitted to submit written statements to be included in the
permanent hearing record.
And without objection, the hearing record will remain open
for 14 days to allow questions for the record, statements, and
extraneous material referenced during the hearing to be
submitted for the official hearing record.
It is now my pleasure to introduce our distinguished panel
of witnesses.
Elliot Lewis is the assistant inspector general for audits
with the U.S. Department of Labor's Office of Inspector
General.
Mr. Lewis has been with the Office of Inspector General
since 1991 serving in a variety of positions within the Office
of Financial Management Audits.
Before joining the federal government, Mr. Lewis was a
partner at T.R. McConnell & Company, an accounting firm in
Columbia, South Carolina.
Mr. Lewis holds an undergraduate degree in accounting from
the University of South Carolina.
Thank you for being here.
Peter Gerstenberger is a senior--and I hope I didn't
destroy that name--a senior advisor for safety, compliance and
standards at the Tree Care Industry Association, located in
Londonderry, New Hampshire.
At TCIA, Mr. Gerstenberger has produced safety training
curriculum, training videos, and participated in national
recognized standard setting initiatives nationwide.
Mr. Gerstenberger holds a Bachelor of Science in biology
from Grinnell College, and a Master's of Science from Iowa
State University.
Welcome.
Eric Frumin is director of health and safety with Change to
Win. Mr. Frumin is a leading National Trade Union spokesperson
on issues of job safety, health, and disability, including
OSHA's standard setting and enforcement, and occupational
disease, and injury surveillance.
Mr. Frumin has advised trade and unionists and governments
in Asia, Africa, and Central and South America, and the U.N.
Commission on Sustainable Development on health, safety, and
environmental issues.
Thanks for being here.
And then, Kevin Beauregard is assistant deputy commissioner
and assistant director, Occupational Safety and Health Division
of the North Carolina Division of Occupational Safety and
Health.
Mr. Beauregard has been with North Carolina's occupational
Safety and Health OSH division for the last 20 years, where he
has held a variety of positions including safety compliance
officer.
Mr. Beauregard is a board certified safety professional,
and certified public manager, and holds a Bachelor of Science
in industrial technology from the University of Maryland.
Mr. Beauregard is testifying on behalf of the Occupational
Safety and Health State Plan Association.
Before I recognize each of you to provide your testimony,
let me briefly explain our lighting system which works with the
stop lights in our republic.
When you begin with, the light in front of you will turn
green. When 1 minute is left, the light will turn yellow. And
when your time is expired, the light will turn red, at which
point I would ask you to wrap up as quickly as possible. Well,
more than quickly as possible.
We have votes that are coming here, and so we want to get
this hearing in, and have opportunity for question from the
panel--or from the committee to the panel as well.
So I will try to work at being much more committed to
keeping the time today for myself included.
After everyone has testified, members will each have 5
minutes to ask questions of the panel.
And so, let us begin first of all with Mr. Lewis.
STATEMENT OF ELLIOT P. LEWIS, ASSISTANT INSPECTOR GENERAL FOR
AUDIT, U.S. DEPARTMENT OF LABOR'S OFFICE OF INSPECTOR GENERAL
Mr. Lewis. Mr. Chairman, members of the subcommittee, thank
you for the opportunity to discuss the OIG's audit of OSHA's
oversight of state plan programs.
Protecting the health and safety of our nation's workers is
one of the department's most important responsibilities. Under
Section 18 of the Occupational Safety and Health Act, OSHA is
responsible for ensuring that state plans are at least as
effective as the federal program.
Currently, 27 states and territories have been approved by
federal OSHA to operate their own workers safety and health
programs. Once OSHA approves a plan, the state assumes full
responsibility for operating its safety and health program.
However, OSHA remains responsible for ensuring that the state
complies with the act.
Mr. Chairman, our audit was conducted to determine whether
OSHA ensured that state safety and health programs were at
least as effective as the federal program. We concluded that
increased accountability is needed at both the federal and
state level, because neither OSHA nor the states have outcome-
based performance metrics to measure the effectiveness of their
programs.
As part of our audit, we surveyed all 27 state plans, as
well as obtained information from OSHA national and regional
officials.
The survey of state plans found that all of the states
believe that operating their own safety and health program
allows for more flexibility in response to specific needs of
the workplaces in their state. And 78 percent believe that
their programs are more comprehensive than federal OSHA.
Generally states believe their programs were effective
based on their comprehensive knowledge of local employers.
However as with OSHA, none of the states provided us with
information to show that they have established the cause or
relationship between their activities and reductions in
injuries and illness.
In monitoring state plans, OSHA reviews output data such as
inspection counts, penalty amounts, measures for timeliness and
completion of inspections, violation classification, timely
adoption of standards.
While these output measures may be appropriate, they do not
necessarily measure the effect of these actions on actually
achieving safety and health improvements. Effectiveness
measures are needed to this end. In fact, 63 percent of states
surveyed said that measures need to be more outcome rather than
output-based.
States voiced other concerns with OSHA's oversight of state
plans. Forty-eight percent said that monitoring needs
improvement with respect to consistency and communication.
Most states believe that there is a moving target for what
is expected of them, especially when there is a change of
administration which results in a lack of clear expectations.
Finally though, although 75 percent believe that
recommendations made by OSHA were feasible, states did not
always believe that the changes would result in improvements.
Mr. Chairman, our audit found that OSHA has not defined
effectiveness for health and safety programs whether they are
operated by the states or at the federal level. This not only
limits OSHA's ability to ensure its own program operates in an
effective manner, but it also limits OSHA's ability to
determine whether state plans are at least as effective as
OSHA.
Our audit recommended that OSHA define, measure, and
monitor effectiveness. We recognize that defining and measuring
effectiveness is difficult to do.
However in order to meet the act's requirements, ensure
that programs are having the greatest impact, and demonstrate
the value of safety and health strategies, effectiveness must
be defined and measured.
We are pleased to note that OSHA recognizes the need to
improve effectiveness measures and is already taking action to
this end. OSHA has formed a task force with state plan
representatives, and is working to define effectiveness.
OSHA also stated that it is developing impact measures for
both itself and the states. In addition, OSHA is conducting a
multiyear study of 80,000 highest risk employers to determine
how OSHA's interventions impact injury and illness outcome.
The OIG believes that OSHA should continue working with the
federal state task force to determine how effectiveness can be
measured.
In addition, OSHA may want to consider evaluating states
with model plans to identify best practices that have resulted
in successful program outcomes for possible implementation on a
wider scale, and developing and pilot testing metrics in
several states to see whether they actually measure safety and
health program outcomes rather than outputs.
In conclusion, Mr. Chairman, we believe there is room for
greater accountability at the federal and state level in
demonstrating the impact of safety and health programs funded
by the taxpayers.
Current program evaluation should be augmented with
outcome-based performance measures. In our opinion, it is
critical to measure the impact of specific program strategies
on protecting the safety and health of our nation's workers
regardless of whether a program is operated by the state or the
federal government.
Thank you for the opportunity to testify on our work. I
would be pleased to answer any questions that you or any
members of the subcommittee may have.
[The statement of Mr. Lewis follows:]
Prepared Statement of Elliot P. Lewis, Assistant Inspector General for
Audit, Office of Inspector General, U.S. Department of Labor
Good morning, Mr. Chairman and Members of the Subcommittee, I
appreciate the opportunity to discuss our recent report on the
Occupational Safety and Health Administration's (OSHA) monitoring of
State Plan programs. As you know, the Office of Inspector General (OIG)
is an independent entity within the Department of Labor (DOL);
therefore, the views expressed in my testimony are based on the
findings and recommendations of my office's work and not intended to
reflect the Department's position.
Background
Protecting the health and safety of our nation's workers is one of
the most important responsibilities of the Department. The Occupational
Safety and Health Act (OSH Act) of 1970 provides the mandate for OSHA
to ensure the safe and healthy working conditions for working men and
women by: setting and enforcing standards; providing training,
outreach, and education; and encouraging continuous improvement in
workplace safety and health. With few exceptions, the OSH Act covers
most private sector employers and their employees in the 50 states and
six territories, either directly through Federal OSHA or through an
OSHA-approved state safety and health plan.
Currently, 27 states and territories have been approved by Federal
OSHA to operate their own worker safety and health programs. The OSH
Act also authorizes OSHA to provide funding through Federal grants for
up to 50 percent of state operational costs. In FY 2010, states were
granted $104 million to develop and operate State Plans.
Under Section 18 (c)(2) of the OSH Act, Federal OSHA is responsible
for ensuring that State Plans are at least as effective as Federal
OSHA. Once OSHA approves a plan, the state assumes full responsibility
for operating its occupational safety and health program. However,
Federal OSHA remains responsible for ensuring that the state complies
with the OSH Act and may revoke approval of the State Plan if it does
not.
Mr. Chairman, our audit was conducted to determine whether OSHA
ensured that safety and health programs operated under State Plans were
at least as effective as the Federal OSHA program, as required by law.
We concluded that increased accountability is needed at both the
Federal and state level, because neither Federal OSHA nor the states
have outcomes-based performance metrics to measure and demonstrate the
causal effect of their programs on the safety and health of workers.
Audit Findings
As part of our audit, we surveyed all 27 State Plans. We found that
states generally believed their programs were effective. This belief
was often based on their comprehensive knowledge of local employers.
Many states indicated that they have created unique safety and health
initiatives that reduce the number of workplace fatalities, injuries,
and illnesses. States measure their own performance by measuring
changes in the number of worker injuries and illnesses. However, as
with the Federal OSHA, none of the states provided us with information
to show that they have established a causal relationship between their
activities and reductions in injuries and illnesses. It is important to
consider that these rates can be impacted by external factors. These
include economic conditions in the states, such as levels of employment
and changes in the mix of industries.
All of the states believe that operating their own safety and
health programs allows for more flexibility in response to specific
needs of the workplace in their state. We found that 78 percent (21 of
27) of states also believe that their programs are more comprehensive
than Federal OSHA. For example, 19 states believe that their health and
safety standards exceed OSHA's regarding permissible exposure limits
for hazardous substances. Further, all 27 states indicated that their
State Plans had responded more quickly to local needs citing more
aggressive whistleblower deadlines, more timely review of contested
cases, and faster adoption of standards.
Our survey found 75 percent of the states (20 of 27) believed that
recommendations made by OSHA Federal monitors were usually feasible or
very feasible. However, the states did not always agree that program
changes required by OSHA would improve the effectiveness of their
programs. One example they cited was OSHA's change to its penalty
structure, which would significantly increase penalty amounts. OSHA
required states to adopt either the Federal penalty structure or a
similar one. States were reluctant to adopt this Federal policy,
indicating that OSHA has not explained how higher penalties would
result in more effective enforcement.
In addition, 48 percent (13 of 27) of states believe that OSHA's
monitoring of their state programs needs improvement, but only 3 (or 11
percent) believed that a total revamp of OSHA's monitoring is needed.
Fourteen states responded that OSHA's ``one-size-fits-all'' approach is
not effective, noting deviations from the Federal program do not equate
to a state being less effective. Eleven states noted that OSHA needs to
be more consistent in monitoring and reporting results. Finally, 6
states mentioned that improved communications are needed between the
states and Federal OSHA.
Many states believed that there is a large variance between what
OSHA requests from them at one point in time to another, especially
when there are changes in Administration. The survey indicated that 70
percent (19 of 27) of states expressed concerns that this ``moving
target'' approach regarding desired program performance resulted in a
lack of clear expectations.
Mr. Chairman, we recognize that there will be differences between
state-run safety and health programs and Federal OSHA. We do not
disagree that there can be more than one approach to safety; however,
all programs must ultimately meet the mandate of the OSH Act.
Effectiveness measures are needed to make this determination. In fact,
in response to our survey, 63 percent (17 of 27) of states said that
effectiveness measures need to be re-evaluated and made outcome, rather
than output-based. A particularly good observation we received was that
a national dialogue should be initiated to explore how best to measure
improvements in worker safety and health programs, as opposed to
measuring outputs such as citations and penalties issued.
In addition, many states expressed concerns that their programs
would be impacted by budget cuts. One state noted that its current
fiscal crisis resulted in furloughs, which impacts their ability to
meet program goals. Another noted that because of state budget
reductions, it was unable to accept additional grant funds being
offered by Federal OSHA to state programs due to the lack of matching
funds from the state. Many also believed that there is a scarcity of
qualified staff and a high turnover rate due to a lack of resources to
fund competitive salaries. This is compounded by state hiring freezes
that result in vacant positions and a significant decrease in the
number of inspections, surveys, and other activities. These concerns by
the states are all the more reason to know whether we are getting the
most benefit from the resources invested.
Mr. Chairman, our audit found OSHA has not defined effectiveness
for health and safety programs, whether operated by the states or
Federal OSHA. This not only limits OSHA's ability to ensure its own
program operates in an effective manner but also to determine whether
State Plans are, or are not, at least as effective as Federal OSHA.
OSHA reviews individual State Plans by evaluating data such as
inspection counts, penalty amounts, injury and fatality rate trends,
measures for timeliness and completion of inspections, violation
classification, and timely adoption of standards. While these measures
may be appropriate, they do not necessarily measure the effect of these
actions on achieving safety and health improvements.
OSHA has taken steps recently toward improving oversight, but the
approach continues to focus on State Plan program outputs. As mentioned
in our audit, OSHA's Enhanced Federal Annual Monitoring and Evaluation
(EFAME) process requires more on-site monitoring of compliance with
Federal OSHA program structure and procedures. However, EFAME does not
measure program effectiveness from an outcomes perspective.
Audit Recommendations
Our audit contained four recommendations to OSHA. Specifically, we
recommended that OSHA:
Define effectiveness in terms of the impact of state programs on
workplace safety and health.
Design measures to quantify the impact of State Plans on workplace
safety and health.
Measure Federal OSHA program performance to establish a baseline to
evaluate State Plan effectiveness.
Revise the monitoring processes to include comparison of the impact
of state and Federal programs.
OSHA Response
In response to our audit, OSHA stated that it:
Intends to continue to use appropriate activity measures to
evaluate the effectiveness of state programs and ensure that they are
meeting the requirements for State Plan approval and funding.
Formed a task force with State Plan representatives and is working
to define effectiveness and expand its scope to review appropriate
impact measures.
Is developing additional impact measures for both Federal OSHA and
the states.
Envisions a review of trends and compliance, violations, or
discrimination rates as measures of impact within in its FY 2011-2016
Strategic Plan.
Mr. Chairman, we recognize that defining and measuring
effectiveness of safety and health programs is difficult to do.
However, in order to meet the OSH Act requirements that state programs
be at least as effective as the Federal program, effectiveness must be
defined and measured.
OSHA noted in its response to our audit report that it is committed
to defining and measuring effectiveness. Possible ways OSHA could do
this include:
Continuing to work through the Federal/State task force to
determine how effectiveness can be measured.
Evaluating states with model plans to identify best practices that
have resulted in successful program outcomes for possible
implementation on a wider scale.
Developing metrics and pilot testing them in several states to see
whether they are actually measuring safety and health program outcomes
rather than outputs.
Conclusion
In conclusion, Mr. Chairman, we believe that there is room for
greater accountability at the Federal and state levels in demonstrating
the impact of safety and health programs funded by the taxpayers. We
believe that current program evaluation should be augmented with
outcome-based performance measures. In our opinion, it is critical to
measure the impact of specific program strategies on protecting the
safety and health of our nation's workers--regardless of whether a
program is operated by the state or the Federal government.
Thank you for the opportunity to testify on our work. I would be
pleased to answer any questions that you or any Members of the
subcommittee may have.
______
Chairman Walberg. Thank you, Mr. Lewis.
We now recognize Mr. Gerstenberger.
Welcome.
STATEMENT OF PETER GERSTENBERGER, SENIOR ADVISOR TO THE
PRESIDENT FOR SAFETY, STANDARDS AND COMPLIANCE, TREE CARE
INDUSTRY ASSOCIATION
Mr. Gerstenberger. Chairman Walberg, Ranking Member
Woolsey, and members of the subcommittee, on behalf of the Tree
Care Industry Association and our 2,000 member companies across
the United States, we thank you for the opportunity to share
our experiences with state plans and with federal OSHA.
My name is Peter Gerstenberger. As the Chairman mentioned,
I am on the staff of TCIA. Incidentally, prior to 2003, TCIA
was known as the National Arborist Association or NAA.
I work with company owners and their employees on safety
and compliance matters. I am the organization's liaison with
federal OSHA and with select state plans. I have had the
privilege of serving this organization for 25 years.
Our members are companies engaged in commercial and
residential tree trimming and removal, utility vegetation
management, landscape maintenance, and related activities.
Tree care is a high hazard industry. We estimate that our
industry's fatality rate places us among the top 10, and likely
among the top five most hazardous occupations in the country.
Worker safety has been one of the central tenets of TCIA
since its inception over 70 years ago. We were the original
Secretariat of the ANSI Z133 Committee, and remain very active
in the standard-making process.
We direct the only credentialing program for safety
professionals within our industry, and produce a wealth of
bilingual safety training programs.
Throughout my tenure, I have participated actively as a
member of ANSI Z133, a standard developed through a consensus
process by an accredited standards committee representing
employers and employees, organized labor, equipment
manufacturers, academia, and other stakeholders.
And the Z133 standard captures the collective wisdom and
experience of the entire profession, translating that body of
knowledge into standards of safe practice.
The Z133 Committee was first formed in 1969, predating
OSHA.
Our efforts have not been limited to our membership and the
ANSI Committee. We have been fortunate to collaborate with
federal OSHA as well as several state plan OSHAs. And each
time, the result was some tangible safety benefit to the
industry.
Recently, our work with state plan OSHAs has been
particularly fruitful. We have worked directly with California,
Virginia, Maryland and Michigan to adopt more effective
guidance for tree care operations.
In the interest of time, I am going to highlight our recent
experience with Virginia OSHA, comparing and contrasting them
to our experience with federal OSHA.
Since 2000, Virginia experienced 47 tree care related
fatalities which comprised 9 percent of all occupational
fatalities within the state. Considering the relatively small
size of the tree care industry in that state, this is a
disproportionately high number of fatal accidents.
In 2001, TCIA approached the Virginia Department of Labor
industry about the possibility of adopting a comprehensive
regulation addressing tree trimming.
We requested a regulation based on ANSI Z133 2000.
Discussions with Virginia resulted in a commitment from the
industry to make changes to the ANSI standard which culminated
in the adoption of ANSI Z133 2006.
On that point, let me digress from the Virginia OSHA story
to point out that at the same general timeframe, TCIA was also
having conversations with federal OSHA about wording in the
Z133 standard for different reasons, but with the same end
result.
Z133 was strengthened from a regulatory perspective.
Virginia OSHA initiated a rulemaking in 2007 with the
assistance of a work group comprised of private and public
sector representatives. The final regulation, just adopted
recently, is based very closely on Z133.
We submit that the situation in Virginia is a microcosm of
the situation nationally as far as their industry is concerned.
What we appreciate about the Virginia situation is that
they saw high hazard industry where help was needed, and they
took decisive and relatively swift action.
Our efforts to engage federal OSHA have in some instances
produced positive outcomes. For 12 years, our association's
leadership worked directing with federal OSHA toward the
promulgation of 29 CFR 1910.269, the Electric Power Generation,
Transmission and Distribution Standard. Certain parts of the
vertical standard regulate line clearance tree trimmers.
The result of that collaboration in our estimation was an
effective workable standard.
Unfortunately, not all interactions with federal OSHA have
resulted in positive outcomes. In that same general timeframe,
OSHA was separately working on a vertical standard for the
logging industry.
And it wasn't until after that rule was promulgated that it
was determined through letters of interpretation that the
industry, our industry, should be regulated by that same rule.
The end result was that absent our ability to have any
input into that standard, that the resulting standard resulted
in a very poor fit in terms of regulating our industry, and
ensued from that was basically a 12-year running battle, verbal
and legal, with OSHA over the applicability of that standard to
our industry.
Now we can't define what effective should mean for the
committee, but we can certainly point to the aforementioned as
an example of ineffective.
Over the years OSHA has repeatedly petitioned and asked
federal OSHA for a specific standard for our industry. At one
point in time in 2008, we actually made it as far as being in--
noted as in the advance notice for proposed rulemaking for a
separate standard.
But then suddenly and inexplicably, we were dropped from
the regulatory agenda.
We rank state plans' effectiveness as measured by the
receptiveness to either promulgate or revised regulations to
improve safety in our industry as very good, and by contrast,
federal OSHA, not quite as effective in that area.
We have been, and we remain, more than willing to
participate in further dialogue with OSHA and other
stakeholders concerning this important measure.
We thank you for the opportunity to be heard and happy to
address any questions.
[The statement of Mr. Gerstenberger follows:]
Prepared Statement of Peter Gerstenberger, Senior Advisor for Safety
Compliance and Standards, the Tree Care Industry Association
Testimony of Peter Gerstenberger Senior Advisor for Safety
Compliance and Standards for the Tree Care Industry Association before
the House Education and the Workforce Committee Subcommittee on
Workforce Protections June 16, 2011
Chairman Walberg, Ranking Member Woolsey and Members of the
Subcommittee, on behalf of the Tree Care Industry Association (TCIA)
and our approximately 2,000 member companies across the U.S., we thank
you for the opportunity to testify today about our experiences with
state plans and federal OSHA.
My name is Peter Gerstenberger and I am the Senior Advisor for
Safety, Compliance and Standards for the Tree Care Industry
Association. I am responsible for the development of TCIA's safety and
compliance training programs and the association's primary contact with
company owners and their employees on safety/compliance matters. I also
act as TCIA's liaison with OSHA and similar state entities and
regularly work with these agencies in an effort to improve safety
throughout our industry. I have had the privilege of serving TCIA in
one capacity or another for more than 25 years. Throughout my tenure, I
have participated actively as a member of the ANSI Z133 Committee,
which develops the only consensus safety standard for tree care
operations.\1\ The Z133 committee was first formed in 1969, pre-dating
OSHA.
---------------------------------------------------------------------------
\1\ The American National Standard's Institute (ANSI) Z133. 1-2006,
Safety Requirements for Arboricultural Operations. Z133 was first
published in 1972. It was revised in 1979, 1982, 1988, 1994, 2000 and
2006. A revised standard is expected for 2011.
---------------------------------------------------------------------------
TCIA's 2000 active members are companies engaged in arboriculture
(tree care), tree trimming and removal, utility vegetation management,
landscape maintenance and related activities. Tree care is a high-
hazard industry. Using estimates of our industry's size from reliable
sources as well as our own market research, we calculate that our
industry's fatality rate places us among the top 10, and likely among
the top five most hazardous occupations in the country.\2\
---------------------------------------------------------------------------
\2\ A recent report published by the Centers for Disease Control &
Prevention (CDC) indicates that there are 190 fatal occupational
fatalities among a group of workers that the Bureau of Labor Statistics
(BLS) terms ``grounds maintenance workers.'' See Fatal Injuries Among
Grounds Maintenance Workers--United States, 2003--2008. Morbidity and
Mortality Weekly Report, May 6, 2011. Vol. 60, No. 17. Within this
statistic, it is eminently clear that tree care activities and tree
care workers were responsible for the majority of those fatal
accidents. As benchmarks, consider the all-industry fatality rate put
forth by BLS of 4.0 (per 100,000) and the GMW rate of 13.3. To
calculate a comparable statistic for tree care, we need the number that
has eluded everyone, namely the total number employed in tree care in
the U.S. Industry sources suggest that this number is somewhere between
150,000 and 300,000. Using the 63-fatalities-per-year-among-tree-
trimmers figure from the CDC report and not counting the workers from
allied trades who died doing tree work, we estimate a fatality rate of
between 21 and 42 per 100,000. For comparison's sake, according to the
BLS CFOI, the 2009 fatality rate for construction laborers was 18.8
with 229 total fatalities, and for farming, fishing and forestry
occupations it was 25.8 with 239 fatalities.
---------------------------------------------------------------------------
As a result, worker safety has been one of the central tenets of
TCIA since its inception more than 70 years ago. We were the original
Secretariat of the ANSI Z133 in 1969 and remain very active in that
standard-making process. We also have consistently focused on assisting
our members improve safety through education and training. As part of
this effort, we direct the only credentialing program for safety
professionals within our industry, produce a wealth of bilingual safety
training programs, and offer employers a model illness and injury
prevention program.
Our efforts have not been limited to our membership and the ANSI
committee, however. We also regularly engage regulators to effect safer
working conditions for our members' employees as well as the multitude
of small employers outside our membership. In this regard, we have been
fortunate to collaborate with federal OSHA as well as several State
Plan OSHAs in the past, and the result has been a tangible safety
benefit to the industry in each instance.
In recent years, our collaborations with state plans have been
particularly fruitful. We have worked directly with State Plan OSHAs in
California, Virginia, Maryland and Michigan to adopt more effective
rules and guidance for tree care operations.
Since 1993, Virginia experienced 59 non-logging, tree care-related
fatalities, which comprised seven percent of all occupational
fatalities within the state, with 47 of those, or nine percent of all
occupational fatalities, occurring since 2000. For an industry of the
relatively small size of the tree care industry, this is a very high
number of fatal accidents.
TCIA (then National Arborist Association) approached the Virginia
Department of Labor & Industry (DOLI) about the possibility of adopting
a comprehensive regulation addressing tree trimming in 2001. We
requested a regulation based on ANSI Z133.1-2000. Developed through a
consensus process by an accredited standards committee representing
employers and employees, organized labor, equipment manufacturers,
academia, and other stakeholders, the Z133 Standard captures the
collective wisdom and experience of the entire profession, translating
that body of knowledge into standards of safe practice.
Discussions with the DOLI resulted in a commitment from the
industry to make changes to the ANSI standard, which culminated in the
adoption of the revised ANSI Z133.1-2006.\3\
---------------------------------------------------------------------------
\3\ TCIA also had substantive conversations with federal OSHA
concerning Z133. Please see page 7 of this document.
---------------------------------------------------------------------------
Virginia OSHA (VOSH) initiated this rulemaking in 2007 with the
assistance of a regulatory work group composed of private and public
sector representatives. TCIA organized a small coalition of affected
members to sit down with VOSH, other agencies and other affected
parties to craft the standard language that very recently took effect
in the Commonwealth.
The purpose of the new regulation is to provide comprehensive
protection to private and public sector employees and employers exposed
to tree trimming hazards. The final regulation is based closely on ANSI
Z133, with certain provisions such as the one for first aid/CPR
training that are more stringent than either Z133 or OSHA general
industry standards.
VOSH estimates that on average over the last 10 years there were
four fatal tree trimming accidents per year that could be prevented
going forward if there is full compliance to the final regulation.
California has had tree care-specific rules on its general industry
safety orders (GISO) as well as its high voltage safety orders for
quite some time. We are not aware of the full history of their
promulgation other than the fact that they were based upon the extant
consensus standards at the time.
We began our collaboration with California OSHA (Cal/OSHA) in 2004.
At that time there was a recognized and growing hazard associated with
climbing into and removing trees killed or weakened by forest fires and
pine beetle infestations in the State. Cal/OSHA reached out to the
industry experts and even attended our conferences and trade shows to
learn more. We participated in the development of an emergency
regulation to allow tree workers to be hoisted by crane into the tree
canopy when other methods were less safe or infeasible. Cal/OSHA
immediately saw the logic of adopting this as permanent regulation,
consistent with what had been recognized as an accepted safe work
practice in Z133 since 1979. In 2005, that goal was realized.
Currently, an advisory committee of our members, Cal/OSHA staff,
and representatives from unions, utilities, municipalities, companies
and other stakeholders are assisting Cal/OSHA with the revision of
several outdated sections of its GISO pertaining to tree care
operations. Once again, Z133 language is serving as the template. With
these standards, Cal/OSHA's compliance field force will be better
educated to look for the hazards likely to cause serious harm, and the
smallest practitioner in the remotest corner of the State will have
ready access to updated minimum standards for safety.
In 2008, TCIA entered a formal alliance with the Michigan
Occupational Safety and Health Administration (MIOSHA) and five other
Green Industry organizations in Michigan to help protect the safety and
health of Michigan's green industry workers. The MIOSHA program is part
of the Michigan Department of Labor & Economic Growth (DLEG).
MIOSHA launched a Tree Trimming Industry initiative in October
2006, due to a series of fatalities involving tree trimmers in
Michigan. MIOSHA sent letters and a fact sheet to 1,000 employers in
the tree trimming and removal industry to raise awareness of the
industry hazards and to offer training materials. MIOSHA also increased
compliance efforts in the industry to encourage employers to protect
their workers.
This ground-breaking alliance was an outgrowth of that initiative.
By forming this collaborative relationship, all partners pledged to
work together to foster the highest standards, good work ethics and
safe work practices for all professional sectors of the green industry.
The goals of this alliance included, but were not limited to:
Reducing accidents; providing training and education specific to the
green industry and encouraging member participation; developing fact
sheets, PowerPoint presentations, best practices case studies, and a
website resource list to help employers and employees increase their
knowledge of safety and health issues and to forge innovative
solutions; and coordinating participation in forums, round table
discussions, conferences, and reciprocal website links to assist
employers with compliance and the development of safety and health
systems.
Just over three years after the alliance was signed, all those
goals and more have been realized.
As the economy continues to impact our industry, nowhere is the
effect being felt more than in Michigan. In 2010, Michigan experienced
seven occupational fatalities related to tree care. These fatalities
included electrocutions, falls and struck-bys; and arguably all could
have been prevented with more training. Therefore it was particularly
gratifying for the Michigan Green Industry Association (MGIA, one of
the Green Industry Alliance Partners) to be able to announce that it
had been approved for a $20,000 grant from MIOSHA. The grant helped
relieve some of the financial burden of training for numerous small
employers while providing high-quality, tree care-specific safety
training to 200 tree workers.
In 2011 with MIOSHA's assistance, MGIA will again be able to help
address unmet training needs with both electrical hazard awareness and
CPR/first aid training programs.
Very recently, Maryland OSHA initiated a rulemaking with the
ultimate goal of promulgating a comprehensive vertical standard for
tree trimming similar to Virginia's. TCIA attended a hearing in
November 2010 and participated in a work group in December 2010 with
other stakeholders to refine the first draft of a proposed standard
that MOSH had created internally.
We submit that the situation in States like Virginia, California,
Michigan and Maryland is a microcosm of the situation nationally as far
as our industry is concerned. As a result, we feel that similar
collaboration with other state plans and federal OSHA can improve
safety in our industry.
Our efforts to engage federal OSHA have in many instances resulted
in positive outcomes. For example, during a 12-year period, our
association's leadership worked directly with federal OSHA toward the
promulgation of 29 CFR Sec. 1910.269, Electric Power Generation,
Transmission and Distribution. Certain parts of this ``vertical
standard'' regulate the utility line clearance tree trimming industry,
a specialized industry within our profession, employing tens of
thousands in the U.S. The result, in our estimation, was an effective,
workable standard that was and is responsive to the hazards of line
clearance tree trimmers.
We have also sought and received assistance from federal OSHA to
train thousands of workers. In 2004-05, TCIA received a $197,000
Harwood grant to provide a series of full-day regional, bilingual
electrical hazards awareness workshops targeting small-employer
businesses. Our program included a train-the-trainer component to
leverage the resources from the grant. The grant enabled us to provide
this vital training to 2,327 tree care workers. Once again in 2007-08,
TCIA received $160,000 from OSHA to conduct electrical hazards
awareness training through regional workshops. Another 1,513 tree care
workers were trained.
From 2002 through 2007 as we fulfilled our Harwood grant
obligations, we continued to collaborate with a variety of arborist
organizations to deliver electrical hazards training. In total, we
estimate that more than 10,000 arborists received electrical hazards
training using TCIA training materials in a five-year time span.
In recent years, there has been an amazing transformation in the
industry that we firmly believe is directly attributable to this
training, and for which OSHA deserves some of the credit. In the 19
years prior to the electrical hazards workshops, the percentage of all
fatal accidents attributable to electrical hazards, as measured by
OSHA, was 39 percent. By 2006, that statistic had dropped to 18
percent, and a year later (the last year of our grant) it had dropped
even further to 16 percent.
While our most recent applications for Harwood grants have not been
selected, we hope to receive future grants so we might build upon our
past success.
On February 11, 2003, TCIA entered an Alliance with federal OSHA.
The Alliance was created to help solidify a relationship between both
organizations which will result in enhanced dialog, information
exchange, and the development of training materials. Both parties to
the Alliance agreed that the ANSI Z133 Standard should be recognized as
the leading authority for safe practices in the tree care industry, and
that all training programs created should be consistent with this
document. However, because the Z133 is a consensus standard, both
parties agreed to review the Z133 document in order to ensure
consistency with existing legal standards before developing such
training programs based on its content. Therefore, in June of 2003,
representatives of OSHA and the TCIA reviewed the content of the 2000
revision of Z133.
Our shared goal was to identify areas of the Z133 document that
either appeared to be inconsistent with existing legal standards, or
appeared to need clarification for better understanding. TCIA did not
make any promises or commitments to OSHA that Z133 would be revised per
the recommendations; nevertheless we did carry the recommendations to
the Z133 committee and almost all were adopted in the next revision.
Again this exercise was undertaken for the sole purpose of identifying
the principles on which future training programs could be modeled. Our
industry's consensus safety standard became stronger as a result.
Unfortunately, not all interactions with federal OSHA have resulted
in positive outcomes. In the same period that OSHA was working on
1910.269, it was also separately working on a standard for the logging
industry, 1910.266, that became a final rule in 1994-95. It wasn't
until after the rule was promulgated that OSHA determined through
letters of interpretation that the tree care industry should be
regulated by it. By applying the standard to our industry after it was
promulgated, we were denied any opportunity to have input into the
standard. This has resulted in various inconsistencies and
inefficiencies, including some of the final Logging Standards'
requirements directly contradicting what had just become law in
1910.269. What ensued was a running legal and verbal battle between
OSHA and our industry over 10-plus years concerning the applicability
of the Logging Standard that culminated in the current OSHA Directive,
CPL 02-01-045, Citation Guidance Related to Tree Care and Tree Removal
Operations.
We cannot define what ``effective'' should mean for this committee;
however, we can certainly point to the aforementioned as an example of
ineffective. While the current federal directive provides some guidance
on safety measures for our industry, it nonetheless is the product of
an attempt by OSHA to cobble together various standards from general
industry, as well as other industries, and apply them to tree care. In
this manner, it is incomplete and inferior to standards such as those
in Virginia and California, which address the unique hazards facing our
industry and provide proactive guidance to employer, employees and
enforcement officers.
Over the years, TCIA has repeatedly engaged OSHA in an effort to
address these deficiencies and obtain a specific standard for our
industry, including a formal petition for rulemaking we filed in 2006.
Support for an arboriculture standard also has come from various other
stakeholders. Indeed, Members of Congress from both Chambers and both
parties have intervened several times on this issue in support of a
separate ``arborist standard'' based upon ANSI Z133, beginning when
Cass Ballenger, the former Chair of this Subcommittee, suggested OSHA
move forward with a separate standard more than 10 years ago. Those
calls have been repeated by several Members of this Subcommittee over
the years, including several current members, who have urged OSHA to
move forward with a negotiated rulemaking.
It appeared that we would get what we had been asking for when in
September 2008 (Federal Register Vol. 73, No. 182. Thursday, September
18, 2008. Pages 54118-54123) OSHA issued an advance notice of proposed
rulemaking (ANPR) for tree care operations. They seemed to agree with
our justification for a standard when they said, ``After analyzing the
BLS and IMIS fatality and injury data, OSHA has decided to pursue
rulemaking to address hazards in tree care operations. As the first
step in the rulemaking process, OSHA is publishing this ANPR to gather
data, information, and comment on hazards in tree care operations and
effective measures to control hazards and prevent injuries and
fatalities. In addition, OSHA is requesting comment on provisions a
standard should include to effectively address those hazards. OSHA also
will carefully consider the ANSI Z133.1 standard, as well as State
occupational safety and health standards addressing tree care
operations, in developing a standard.''
It certainly appeared to us from the comments OSHA received on the
ANPRM that there was broad base support for a standard from industry,
individual arborists and other stakeholders.
Despite the vast majority of commenters supporting a standard and
for reasons we do not understand, OSHA has apparently decided not to
pursue a rulemaking at this time and did not include this rulemaking on
its last two regulatory agendas. OSHA's justification for not moving
forward on a vertical standard for our industry has been that existing
standards already provide adequate protections to workers in tree care,
and that the Agency had higher priorities. We do not agree.
Allow us to compare our industry's recent citation history with
that of the logging industry. In fiscal 2009-10, 66 percent of the
logging industry's citations were issued under its vertical standard
and less than one percent were issued under OSHA's catch-all of the
general duty clause.
By contrast in our industry, 10 percent of our citations were
general duty clause. We heard it expressed by a high-ranking OSHA
official once that general duty citations were considerably more
difficult to research and write, and were more frequently contested by
the employer. Your committee may wish to ask OSHA about the relative
``efficiency'' of general duty citations. Certainly efficiency is one
measure of effectiveness.
We cannot comment upon the effectiveness of State Plan's
enforcement activities relative to federal OSHA's. We simply have no
knowledge in that area. However, effectiveness as measured by certain
State Plan's responsiveness to our efforts to improve safety in our
industry is very good.
We have been and we remain more than willing to participate in
further dialogue and meetings with OSHA and other stakeholders
concerning this important measure. Thank you for the opportunity to be
heard in today's hearing, and I am happy to address any questions.
______
Chairman Walberg. Thank you, Mr. Gerstenberger.
Now, we recognize Mr. Frumin?
Your microphone, please.
Mr. Frumin. Yes, okay.
Chairman Walberg. Thank you.
STATEMENT OF ERIC FRUMIN, HEALTH AND SAFETY DIRECTOR, CHANGE TO
WIN
Mr. Frumin. Chairman Walberg, Ms. Woolsey, Mr. Kline, thank
you for the opportunity to testify here today.
Every year thousands of workers die from injuries, tens of
thousands die from job-related diseases, and hundreds of
thousands are disabled.
Under that cloud, this committee has the obligation to
assure that the agencies that Congress created are effectively
doing their part to help. And where necessary, force employers
to protect their workers by complying with our nation's job
safety laws.
First, I must urge this committee in the strongest possible
terms to reject the outrageous attempt by the Appropriations
Committee to slash OSHA's budget by 23 percent.
The states have told you that they are already severely
underfunded. The fact is that the Congress essentially froze
funding for the states throughout the Bush administration.
It was only in the last 2 years that both federal and state
OSHA finally saw the significant increases in their enforcement
resources. If the committee is indeed concerned about efforts
to undermine state OSHA programs, your first stop is with
Chairman Rogers and his colleagues.
Please stop this crippling attack on our nation's basic job
safety and health enforcement effort.
I would like to offer four other essential points.
One, federal OSHA must continue to closely monitor state
OSHA plans as required by law to ensure that they are minimally
at least as effective as the federal program, and eventually
fully effective.
Two, any evaluation of effectiveness must include penalty
levels for serious violations.
Three, it would be a very serious mistake to rely primarily
on injury and illness rates as performance measures for OSHA
programs.
And four, the Labor Department's efforts, as Mr. Lewis
alluded to, to develop useful performance measures, are
innovative and should be strongly supported.
I am going to address these points in regard to what some
of the other witnesses have said.
First, what is the right balance between federal and state
efforts?
In 1970, the Congress required OSHA to approve state plans,
when requested, but also to make a core continuing evaluation
of how each state is carrying out such a plan, and to withdraw
approval when the plan fails.
In other words, Congress adopted very clear limits on the
states' role and discretion.
So when Mr. Beauregard or others complain about the,
quote--``unequal''--unquote, partnership or make pointed
references to protecting so-called states' rights, or imply
that some other partnership is required, they are apparently
not aware of the basic structure of the act.
Over the last 40 years, we have repeatedly seen states that
failed to perform, employers which flouted the law, and workers
who suffered and died. And when that happened, the buck stopped
at the desk of the U.S. Secretary of Labor, not with the
governor and the state legislature.
Let us face facts. The Congress acted in 1970 in major part
because so many states have so badly failed to protect their
own workers. And we have continued to see states fail since
then.
Mr. Chairman, Mr. Kline, listen to the words of Senator
Peter Dominick, a republican leader on the Senate Labor
Committee, who opposed a new central role for federal
government from the legislative history.
``For the first time in modern history, the federal
government is taking over the role of monitor of health and
safety functions in almost every business throughout the
country. There is a provision,'' he said, ``which will permit
the states to regain some administrative control, but we should
not be under any illusion, the federal government is going to
be setting the standards.''
Now we all know that OSHA has few tools to force states to
correct even blatant failures, short of the chaos that comes
from withdrawing the states' plan authority. Only in severe
cases, like the 1991 outrage in North Carolina, has OSHA been
able to use concurrent jurisdiction with the states' agreement.
But that was only triggered because of a catastrophe. The
OSHA Act promised protection to workers before job hazards cut
short their lives and limbs.
OSHA's recent enhanced review has now shown serious
weaknesses in worker protection in Indiana and Hawaii and
elsewhere. So we now ask, how will OSHA prevent Indiana and
Hawaii from becoming the next North Carolina or Nevada, before
workers are slaughtered by the dozen?
Unfortunately, even some OSHA administrators did not follow
this approach and allowed their own state monitoring efforts to
deteriorate, as in Las Vegas. And we were relieved to see OSHA
enhance its reviews. We hope they and the states can agree on
an appropriate way to move forward and assure that these
programs become fully effective.
Lastly, I would like to point out that deterrence is
absolutely key to any serious enforcement effort. Many
inspections are done, but they are far too few given the number
of employers, and deterrence is critical.
Only the threat of serious inspection--serious sanctions
will encourage the kind of voluntary compliance that states and
federal OSHA expect. And that penalties like $300 in the state
of South Carolina simply are not acceptable and must be
stopped.
Finally, we would like to point out that we cannot take
seriously major complaints about OSHA's mandates that states
participate in the National Enforcement Program. Let us look at
the issue of combustible dust.
The Chemical Safety Report Board reported----
Chairman Walberg. Time has expired. I encourage you to wrap
up quickly here.
Mr. Frumin. I am.
That in North Carolina, beginning with the 1980 incident,
there were 12 serious incidents of combustible dust including
the one in Kinston that killed six and injured 38.
But OSHA only asks states to do five NEP inspections. We
don't think that is too much.
We thank you for the opportunity to testify, and be happy
to answer any questions.
[The statement of Mr. Frumin follows:]
Prepared Statement of Eric Frumin, Health and Safety Director,
Change to Win
Chairman Walberg, Ranking Member Woolsey, and members of the
Subcommittee, thank you for the opportunity to testify today.
I am Eric Frumin. I serve as the Health and Safety Director for
Change to Win, and have worked in this field for 37 years. Change to
Win is a partnership of four unions and 5 million workers, in a wide
variety of industries, building a new movement of working people
equipped to meet the challenges of the global economy in the 21st
century and restore the American Dream: a paycheck that can support a
family, affordable health care, a secure retirement and dignity on the
job. The four partner unions are: International Brotherhood of
Teamsters, Service Employees International Union, United Farm Workers
of America, and United Food and Commercial Workers International Union.
The effectiveness of the Federal and State agencies in setting and
enforcing job safety and health standards is a critical question. Every
year, thousands of workers die from injuries, tens of thousands die
from job-related diseases, and hundreds of thousands are disabled.
Under that cloud, this Committee has the obligation to assure that the
agencies the Congress created are effectively doing their part to
help--and where necessary, force--employers to take the basic steps to
comply with our nation's job safety laws.
We would like to offer four essential points:
Federal OSHA must continue to closely monitor State OSHA plans, as
required by law, and must also assure that they provide
``satisfactorily effective enforcement'' programs.
Any evaluation of effectiveness must include whether the penalty
levels for serious violations provide adequate deterrence.
It would be a serious mistake to rely primarily on injury/illness
rates as performance indicators for OSHA programs.
USDOL efforts to develop useful performance measures should be
supported
Federal OSHA must continue to closely monitor State OSHA plans to
assure, as required by law, and must also assure that they provide
``satisfactorily effective enforcement'' programs.
This Committee has held many hearings over the 40 years of OSHA's
existence regarding the agency's competence and direction. In the last
Congress, the Committee adopted many proposals to modernize the OSHA,
and sharply improve OSHA's ability to deal with negligent employers.
One of those hearings focused specifically on the severe failures
of a few state OSHA programs--notably including Nevada's abject failure
to protect construction workers, which resulted in the needless deaths
of 12 workers over an 18-month period in the Las Vegas building boom.
While both the Congress and successive Secretaries of Labor have
encouraged states to adopt their own OSHA programs, and 22 states/
territories have done so for the private sector economy, too little
attention has been paid since the enactment of the OSHAct in 1970 to
the adequacy of both those state programs and the federal actions to
monitor those programs as required under Section 18(c) and 18(f), as
well as by subsequent appeals court directives. And those repeated
failures over the decades have resulted in abject failures by various
state OSHA programs, with horrendous consequences for the citizens of
those states.
The most recent example, which sparked the welcome but long-overdue
Federal detailed review of state plans, was the chaos which descended
upon the massive City Center construction project in Las Vegas in 2008-
09. Construction is by definition a human creation. The ruthless pace
of death and destruction there was no happenstance, no ``accident.'' It
was the inevitable result of weak or non-existent safety management
practices in a highly hazardous industry, creating serious problems
which were neglected by a virtually toothless Nevada state OSHA
program.
It was scandalous that the huge contractors should have created the
hazardous conditions in the first place, and that they were essentially
abetted by the Nevada's failure. But these abject failures were also a
predictable outcome of the years of an arm's-length, ``see no evil''
federal approach to its monitoring responsibilities under Sect. 18(c)
and 18(f). Indeed, one must ask what would have happened had not an
intrepid set of reporters and editors from the Las Vegas Sun dug deeply
into this morass and so vividly exposed the contractors' and the
state's failures.
Fortunately, without even having a confirmed Assistant Secretary or
Solicitor, Secretary Solis responded quickly to this dire situation.
Federal OSHA closely scrutinized the Nevada program, and then, in an
unprecedented but long-overdue action, announced the expansion of that
scrutiny to all other state plans as well. That ``enhanced'' review has
now been completed, and is the subject of this hearing.
It is not the first time that this Committee has had to devote
attention to the consequences of the failure of a state OSHA
enforcement program and failed federal oversight. In the late 1980's,
the NC OSHA program was in a shambles, starved of funds by a callous
state legislature and ignored by a Federal OSHA which valued the
appearance of state enforcement rather than its substance. When 25
workers died and 54 were injured behind locked fire doors at the
Imperial Poultry plant in Hamlet, NC, On September 3, 1991, the reality
of NC's disgraceful program was revealed. With the state's inspection
rate at about half the required level, the plant had never been
inspected in 11 years. Federal OSHA announced that, with NC OSHA's
acquiescence, it was undertaking concurrent enforcement in NC, to
assure that Tarheel workers would not remain unprotected from such
vicious neglect.
As the funerals proceeded, then-Chairman Ford held an urgent
hearing on the severe problems with the OSHA legislation, and continued
his work on legislation to vastly improve the setting and enforcement
of OSHA standards. That legislation was sadly never enacted, but it
addressed many of the same problems that continue to undermine
workplace safety in both the federal and State programs since then,
including the severe weaknesses in many state programs.
Mr. Chairman, Ms. Woolsey, it is worse than regrettable that the
persistent and severe gaps in the OSHAct still include obstacles the
Act's guarantee of effective state plans.
We are not here to say that all state agencies are equally good or
bad--or uniformly better or worse than the federal program. Some state
programs have features that are far better than that which the
Secretary of Labor, with her best efforts, has been able to undertake.
For instance, farmworkers have been largely excluded from coverage and
enforcement of basic job safety standards in Federal jurisdictions and
most state plans. But California, Oregon and Washington have made major
strides to protect them with both standards and enforcement.
California, unique for its size and resources, has adopted job safety
and health standards ahead of both the federal and other programs, just
as California has stricter environmental rules. Other states have a
variety of innovative laws, policies and programs which should serve as
models for other states and federal OSHA.
And both federal OSHA and many state agencies have suffered from
serious underfunding--as the states have consistently reminded the
Congress. Those funding problems continue today, especially with the
collapse of legislated budgets in so many states following the
financial crisis and the severe recession it sparked.
And if the Budget Committee's allocations for FY 2012 are adopted,
including a 23% cut in OSHA's annual budget, there will be a massive
shortfall in funding and staffing for both federal and state OSHA
programs. Indeed, if this Committee is seriously concerned about
attempts to ``undermine State efforts to promote workplace safety,'' as
the title of this hearing suggests, it would immediately call upon
Chairman Rogers and your colleagues on the Appropriations Committee to
significantly increase funding for state OSHA plans.
But even with those all-too-familiar strengths and external
obstacles, we continue to see state agencies which are apparently
incapable of rising to the level of effectiveness which was clearly
envisioned by the Congress when it adopted Section 18:
(f) The Secretary shall, on the basis of reports submitted by the
State agency and his own inspections make a continuing evaluation of
the manner in which each State having a plan approved under this
section is carrying out such plan.
For instance, as a result of the extraordinary review undertaken in
2010, OSHA revealed that the program in Hawaii was on the verge of
collapse, much as OSHA had found in Nevada the prior year--and in NC
twenty years before. Fed OSHA also found that various states were
failing to assure compliance with the ``benchmarks'' for staffing
required under federal law, even though those benchmarks would not
themselves assure a fully effective state program given the continuing
hazards and violations in these states.
Any evaluation of effectiveness must include whether the penalty
levels for serious violations provide adequate deterrence.
The Fed OSHA review also identified state enforcement practices
which on their face are patently questionable or worse. For instance,
it is an article of faith in any statutory enforcement program
including penalties that such penalties are essential to the deterrent
function of the program. As we all know, there are far too few OSHA
inspectors in either the Federal or State programs to assure regular
inspections, even in highly hazardous industries. Deterrence is key.
Yet many states continue to impose penalties for serious
violations--ones capable of causing ``death or serious physical
harm''--at levels far lower than those of either federal OSHA or other
states. For instance, in 2009, Oregon's average ``current'' penalty
(i.e., penalties remaining after settlements or appeals) was only $330.
Incredibly, South Carolina's average ``current'' penalty was only $282.
What model of deterrence does such weak performance convey to employers
who are considering the risks of non-compliance?
There is precious little guidance in the OSHAct regarding the role
of penalties within the deterrence model. Last year, this Committee
decided that the days of absurdly low penalties were over, and reported
legislation to modernize OSHA's penalty provisions. As we all know,
that legislation was opposed by the Chamber of Commerce and employers
generally, such that it never even reached the full House for a vote.
Today, the message to employers and workers continues to be very clear:
the lives and safety of workers are worth less than that of wild horses
in a federal park.
However, the vital role of deterrence is a well-founded concept in
federal and state enforcement programs. US Circuit Courts have
repeatedly upheld penalties on the basis that they must offer some
deterrent function,\1\ as described generally by EPA's enforcement
policy (Policy On Civil Penalties, EPA General Enforcement Policy #GM-
21,'' US Environmental Protection Agency, Effective Date: Feb 16 1984):
---------------------------------------------------------------------------
\1\ Kasper Wire Works v. Sec. of Labor, 268 F.3d 1123, 1132 (D.C.
Cir. 2001) (OSH Act civil penalties designed to ``inflict pocket book
deterrence''); Reich v. OSHRC, 102 F.3d 1200, 1203 (5th Cir. 1997)
(``OSHA must rely on the threat of money penalties to compel compliance
by employers'').
---------------------------------------------------------------------------
Deterrence
The first goal of penalty assessment is to deter people from
violating the law. Specifically, the penalty should persuade the
violator to take precautions against falling into noncompliance again
(specific deterrence) and dissuade others from violating the law
(general deterrence). Successful deterrence is important because it
provides the best protection for the environment. In addition, it
reduces the resources necessary to administer the laws by addressing
noncompliance before it occurs.
If a penalty is to achieve deterrence, both the violator and the
general public must be convinced that the penalty places the violator
in a worse position than those who have complied in a timely fashion.
Neither the violator nor the general public is likely to believe this
if the violator is able to retain an overall advantage from
noncompliance. Moreover, allowing a violator to benefit from
noncompliance punishes those who have complied by placing them at a
competitive disadvantage. This creates a disincentive for compliance.
NC OSHA itself stated in its response to the Federal review:
As federal OSHA and state procedures indicate, penalties are not
designed as a punishment for violations but rather to serve as an
effective deterrent and to provide an incentive toward correcting
violations voluntarily prior to an enforcement inspection.
In short, we firmly believe that penalty levels must be high enough
to offer serious deterrence, and that the levels of penalties must be
addressed in any serious evaluation of the effectiveness of state OSHA
programs. Unfortunately, some leaders among state plans appear to have
forgotten this basic precept. Last year, the Occupational Safety and
Health State Plan Association (OSHSPA), for instance, attempted to
claim that current low penalties are adequate, and professed ignorance
of any documented relationship between penalties and compliance (i.e.
the deterrent value of penalties). OSHSPA even suggested that non-
enforcement methods, such as compliance assistance, are more effective
in stopping non-compliant employer behavior.\2\
---------------------------------------------------------------------------
\2\ Letter from Kevin Beauregard, Chair, Occupational Safety and
Health State Plan Association, to US Assistant Secretary of Labor David
Michaels, August 16, 2010: ``State Plan States' experience has shown
that an effective method to achieve greater compliance among small
employers is by focusing on education and training while increasing the
likelihood of an onsite inspection.''
---------------------------------------------------------------------------
It is hard to believe in the 21st Century that such a claim would
be seriously considered, but some OSHSPA leaders continue to challenge
the fundamental principle of deterrence.
We should expect that they will explain why they have refused to
accept this fundamental principle. However, their suggestion that
alternatives, such as the potential cancellation of government
contracts and reduced workers compensation premiums to promote prompt
compliance, is equally incredible. It is simply ludicrous to propose an
alternative remedy that applies to only a small subset on employers,
and is not authorized in OSHA or even proposed in legislation. Federal
and state procurement procedures provide few if any actual penalties in
the procurement decision-making for labor violations of any sort--never
mind OSHA violations in particular. In addition, there are few such
current mechanisms in state law, with only a handful of states even
having such authority to implement such a practice--and at least, not
in the timeframes envisioned under the OSHAct for compliance with life-
saving safety and health standards. In the absence of such a concrete
mechanism, one can't simply jettison adequate penalties/deterrence
until appropriate standards are included in government contracts or
procurement procedures and an appropriate mechanism for judging
compliance is established.
Workers' compensation premiums are also only tenuously related to
compliance with OSHA standards. For instance, the biggest factor in
workers compensation costs is overexertion injuries\3\ and, as we all
know, those are not addressed in OSHA standards. Workers compensation
premiums are also typically calculated based on a rolling three-year
average experience, so compliance in the short term in most industry
sectors will have little or no short- or medium-term benefit for
employers.
---------------------------------------------------------------------------
\3\ Liberty Mutual Research Institute for Safety, 2010 Liberty
Mutual Workplace Safety Index: ``Overexertion, which includes injuries
related to lifting, pushing, pulling, holding, carrying, or throwing,
maintained its first place rank, costing businesses $13.40 billion in
direct costs. Consistent with past years, this event category accounted
for more than one-quarter of the overall national burden.''
---------------------------------------------------------------------------
Both of these potential tools were available to state job safety
enforcers in the 1960's. These tools were judged by Congress as
insufficient to stop the deaths and injuries on the job. Hence, the
Congress passed the OSHAct specifically to create a joint federal/state
regime of standards and enforcement that could sidestep these obstacles
and deliver a credible inspection/penalty enforcement and deterrence
program capable of getting employers' attention. And section 18 of the
Act likewise requires a minimum set of standards and enforcement
policies--including penalties--such that state-by-state competition
would never be allowed to undermine the basic protective purposes of
the law. As the Senate Report stated: ``In a state by state approach,
the efforts of the more vigorous states are inevitably undermined by
the shortsightedness of others,'' which underscores the ``inadequacy of
anything but a comprehensive, nationwide approach.'' S. Rept. No. 91-
1282, at 4 (1970).
It is also clear that there is certainly no consensus supporting
the view expressed by the OSHSPA leadership. As one prominent state
OSHA program said last year:
* * * the average federal and state plan penalties for serious
violations which carry the substantial probability of death or serious
physical harm are embarrassingly low and widely recognized as having
little deterrent impact.
* * * there is a roughly five-fold variation from state to state in
average penalties for all employer size groups. * * * This is a
disturbing inconsistency that raises substantial concerns about equal
expectations for employers and equal protection for employees. Even
acknowledging that there may be some rational differences in
enforcement strategy from state to state that would merit modest
penalty variations these vast differences suggest that the opportunity
given to states to establish their own penalty policies should be
carefully limited. This unfortunate situation has resisted change for
40 years and it seems time that OSHA exerted somewhat firmer
control.\4\
---------------------------------------------------------------------------
\4\ Letter from Dr. Michael A. Silverstein, Ass't. Director,
Washington State Department of Labor and Industries, to US Assistant
Secretary of Labor David Michaels, August 18, 2010.
---------------------------------------------------------------------------
Faulty reliance on injury/illness rates as performance indicators for
OSHA programs
Some, including the Labor Department's Inspector General, have
taken issue with the use of penalty levels--or other ``activity
measures,'' like the percentage of Serious violations--as indicators of
effective agency performance, preferring to rely heavily instead on the
remarkably unreliable workplace injury/illness rates.
This is a marked departure from the view that the IG took in
another audit it conducted in 2010. At that time, it concluded:
OSHA directives state that penalty reductions were designed
primarily to provide an incentive toward correcting violations
voluntarily. Furthermore, reductions were to be based on the general
character of a business and its safety and health performance.
However, OSHA has not effectively evaluated the use of penalty
reductions for size, history, good faith, and informal settlements, and
the impact on comprehensive corrections of workplace hazards.\5\
---------------------------------------------------------------------------
\5\ US DOL Office of the Inspector General, ``OSHA Needs to
Evaluate Penalty Reductions,'' Report No. 02-10-20110-105, Sept. 20,
2010, p. 4.6 HIDDEN TRAGEDY: Underreporting of Workplace Injuries and
Illnesses. A Majority Staff Report by the Committee on Education and
Labor, U.S. House Of Representatives, June, 2008.
---------------------------------------------------------------------------
In other words, the IG has confirmed the importance of penalties as
deterrence, and the importance of insuring that OSHA takes care to
reduce penalties only when justified by the facts and allowed by the
statue. The IG's latest report fails to take into account this earlier
finding, and the obvious relationship between statutory penalties and
the effectiveness of either Federal or State OSHA enforcement programs.
That said, the IG's recent report on OSHA's evaluation of state
plans also acknowledges the difficulty of doing such evaluations. In
their interviews with federal OSHA staff, IG staff observed that the
required empirical outcome data simply was not available:
[Federal OSHA does] not currently hav[e] extensive, quantitative
performance measures to evaluate the State Plans. The officials agreed
that many measures were by necessity activity-based because outcome
data were lacking. Officials stated that activity measures provided
valuable information on State program operations and were helpful proxy
measures of effectiveness. (p. 6)
Nor does the IG offer any recommendation for alternative measures
other than what one state-plan administrator reportedly referred to as
the ``gold standard for success'': worksite injury/illness data. One
assumes that if legitimate, practical alternative measures were easily
available, the IG would have found them, but it apparently did not.
This Committee has recently looked carefully at the reliability of
reported workplace injury/illness rates. It found what most workers
understand very well: the underlying raw data for the nation's job
injury/illness data system are simply not reliable.6 OSHA has said so,
and is continuing to find employers who willfully violate the rules on
injury/illness records. BLS has said so, and is supporting research to
measure the undercount. It is time to simply stop the fiction that
declining injury/illness rates are a source of comfort for this
Committee, the Secretary of Labor or her counterparts across the
nation.
The same is true as well for fatality data. If state-based fatality
rates were any guidance to the effectiveness of state OSHA plans, then
the Wyoming plan, which had the highest fatality rates in the nation,
should have be shut down years ago, and several other states considered
for the same treatment.
The simple reality is that within important limits, injury/illness
data are useful at the establishment level for employers, unions and
workers as only one part of an overall evaluation of the overall
effectiveness of workplace job safety and health programs. These data
are also useful to OSHA in targeting enforcement resources to those
sites which are willing comply with the recording rules and report
accurate numbers. But they are a far cry from an accurate measure of
whether or not an entire compliance enforcement program is effectively
addressing the range of issues it confronts when dealing with the full
range of industries, employers and hazards in its jurisdiction.
The risks of overreliance on injury rates were starkly revealed at
BP's Texas City refinery, where a company large enough to know better
used measures of slips, trips and falls to justify a disinvestment of
hundreds of millions of dollars--a purposeful neglect which eventually
cost the lives of 15 workers and the safety of hundreds. This is no way
to run a railroad.
DOL efforts to develop useful performance measures should be supported
The final missing piece to the challenge of effective measurement
of performance is the on-going research by both federal OSHA and
Washington State on the actual effectiveness of enforcement. The recent
study (attached) by the Washington State's Safety and Health Assessment
& Research and Prevention (SHARP) Program has clearly demonstrated that
enforcement--including penalties--is an effective method for securing
the changes in employer behavior by non-compliant employers, at least
as reflected in the outcome of workers compensation claims:
Impact of DOSH enforcement with and without citation on
non-MSD compensable claims rates
Inspections that result in citations for violations of safety rules
would be expected to have greater impact due to the penalties which
employers face. When we break out the impact of DOSH enforcement visits
that result in citations from those that do not we find the following:
Fixed-site industries: DOSH enforcement inspections that
had no citation had only a 5.0% greater decrease in non-MSD compensable
claims rates relative to employers with no DOSH activity. But DOSH
enforcement inspections that had one or more citations had a 20.3%
greater decrease in non-MSD compensable claims rates relative to
employers with no DOSH activity.
Non-Fixed-site industries: DOSH enforcement inspections
without citation had a only a 3.1% greater decrease in non-MSD
compensable claims rates relative to employers with no DOSH visits. But
enforcement inspections with one or more citations had a 19.1% greater
decrease in compensable claims rate relative to employers with no DOSH
activity.\7\
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\7\ Washington State's Safety and Health Assessment for Research
for Prevention (SHARP) Program, ``The Impact of DOSH Enforcement and
Consultation Visits on Workers' Compensation Claims Rates and Costs,
1999-2008,'' SHARP Technical Report Number: 70-5-2011, May 2011.
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It is unfortunate that there has been as little research on this
question in the US as has been the case until now. Indeed, there have
been multiple evaluations of federal OSHA's enforcement and
consultation, and voluntary compliance programs by the Government
Accountability Office which repeatedly concluded that the agency had
not taken seriously its obligation to evaluate its policies and
actions. Outside of Washington State, the same has largely been true
for state OSHA agencies as well.
Fortunately, the US Labor Department has, for the first time, taken
very seriously the need to conduct such evaluations--as part of an
overall evaluation effort within the federal government. The Department
has its first Evaluation Officer in history, and the funding for such
evaluations has tripled compared to recent prior years. Additional
funding was secured through the Recovery Act funding. We understand
that OSHA already has underway a critically-important empirical study
of the effectiveness of its own enforcement activities within this
context.
DOL's 201-2016 Strategic Plan explicitly addresses the need to
empirically identify, select, implement and evaluate new performance
metrics, particularly for its enforcement agencies. Indeed, the
evaluation effort described in the Department's Strategic Plan is
unprecedented in OSHA's history, and envisions implementation of new
baseline metrics in 2012. As the Plan states:
For any given Federal program's reported performance, there are
several factors (external independent variables) over which the agency
has neither jurisdiction nor control that will affect the level of
performance. Program evaluation aims to isolate the influence of the
agency's performance from the influence of these external independent
variables in order to reach a clearer understanding of the true impact
of the agency. Even with the more sophisticated approaches to measuring
worker protection outcomes, the ability to isolate the effects of an
agency's activities or to measure the impact of an agency's activities
(what would have happened, all else equal, in the absence of the
agency) requires rigorous evaluation.
Future program evaluations at the Department will focus on impacts
more than ever before. While DOL has worked to develop a robust set of
outcome goals and measures for this strategic plan, the information
provided by these measures alone is limited. To truly understand
whether their strategies are working, these outcome measures need to be
linked to impacts. For example, to understand the impact of inspections
on future compliance of an employer, one cannot just look at the number
of repeat violators and conclude that because it is fewer than the
number of employers first found to be out of compliance that the
difference is the impact of the inspection on future compliance. Some
of those employers may have come into compliance on their own even if
they had not been inspected.\8\
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\8\ U.S. Department of Labor Strategic Plan Fiscal Years 2011-2016,
DRAFT for Stakeholder Review, August, 2010, p. 94.
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The principles and methods for these evaluations has been further
explained in great detail in DOL's companion document ``A New Approach
to Measuring the Performance of U.S. Department of Labor Worker
Protection Agencies'', June 28, 2010. It includes a discussion of the
specific evaluation models appropriate for worker protection agencies,
including how to deal with the issue of recidivism.
It is unfortunate, to say the least, that the Inspector General did
not take this substantial effort into account. In the face of literally
decades of critiques concerning inadequate evaluation of its various
programs, OSHA finally gets departmental support for a qualitative
improvement in its evaluation effort--and the IG has written it off as
irrelevant. When I asked the Inspector General whether or not it had
reviewed either the Strategic Plan or the document on performance
measures for enforcement agencies, the IG's only response was:
``No, we did not incorporate this into the audit. While we reviewed
the measures, those measures had not yet been implemented and we did
not evaluate the merits of the specific measures.'' \9\
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\9\ Email from Jeffrey Lagda, Sr. Program Analyst, US DOL OIG, to
Eric Frumin, April 29, 2011.
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We hope that in light of this important new effort, the IG will
reconsider its conclusions and recommendations, and provide the
concrete assistance that beleaguered enforcement agencies like OSHA
urgently need from oversight bodies like the IG--or from this
Committee, for that matter. Constructive suggestions based on proven
best practices are critical to organizational improvement in many
spheres of activity, and enforcing labor standards is no different.
Conclusion
Federal and state OSHA programs are critical components of our
national system for preventing the unacceptable toll of worker death,
injury and illness. While they can never replace the absolute necessity
for good-faith investment by employers in effective management systems,
they are the critical missing link when dealing with employers who fail
to pay attention to their responsibilities. When employers abusively
neglect their responsibilities, and when large companies engage in such
neglectful conduct on a broad scale, the coordinated actions of federal
and state enforcement agencies are absolutely critical to stopping such
abuses. If the forty years have taught us anything, it is that only
strict enforcement, backed up by adequate resources and the political
will to use them, can make a dent in the daily toll of death, injury
and disease from job safety violations and hazards.
Recommendations
We strongly urge the Committee to support OSHA's efforts under
Section 18 of the OSHAct to closely monitor the performance of its
state partners, and to assure that both it and its state partners
maintain ``satisfactorily effective enforcement'' programs--as required
by the US Court of Appeals in 1978.10
We also urge the Committee to assure that both federal and state
OSHA programs receive the full level of resources required to protect
American workers' health and safety on the job. The threats to OSHA's
funding are acute, and you must not allow opponents of strong labor
protections to use a severe economic recession as a pretext to reduce
state resources for defending workers' lives and safety.
I'll be pleased to answer any questions.
______
Chairman Walberg. Thank you, Mr. Frumin.
I recognize Mr. Beauregard?
STATEMENT OF KEVIN BEAUREGARD, NORTH CAROLINA DEPARTMENT OF
LABOR, OCCUPATIONAL SAFETY AND HEALTH DIVISION
Mr. Beauregard. Mr. Chairman, members of the committee,
thank you for the opportunity to testify today and discuss
issues of importance to members of the Occupational Safety and
Health State Plan Association.
Today, the 27 states and territories that operate a state
plan program for workplace safety and health, work together
through OSHSPA to address common issues and facilitate
communicate between the states and OSHA.
Over the past few years, OSHSPA members have grown
increasingly concerned in regards to several issues that are
significantly impacting the administration of our state plan
programs.
I will briefly highlight OSHSPA's issues and concerns
associated with funding, state plan monitoring, the OIG report,
National Emphasis Programs and penalties. Details of our
concern are reflected in my written testimony.
I want to be clear that the views expressed by me today, in
my role as OSHSPA chair, are supported by the overwhelming
majority of the OSHSPA membership.
In regards to Mr. Frumin's testimony about state plans,
OSHSPA, leadership, or North Carolina, I will be more than
happy to answer any follow-up questions to set the record
straight.
Currently, state plans provide coverage to approximately 40
percent of private sector workers nationwide, and more than 10
million public sector workers. Additionally in 2011, state
plans accounted for approximately 60 percent of all enforcement
activity nationwide.
However, state plans currently receive 18.6 percent of the
total federal funding allocated for OSHA programs.
In the past decade, OSHA's total funding, excluding state
plans and State Consultation Programs has increased
approximately 47.5 percent. In comparison, state plan total
federal funding over the same time period has increased
approximately 17.8 percent.
The state plan increase includes a $1.5 million increase
for the creation of the Illinois State Program. The remaining
state programs have collected 16.1 percent federal funding over
the past decade, and approximately 13 percent of that was
realized in 2010.
Due to the manner in which OSHA distributed the funding,
some state plans received less than half of the allocated 13
percent increase. State plans currently overmatched the federal
grants by more than $71.5 million.
This translates to states overall providing approximately
63 percent of the funding versus 37 percent federal funding to
ensure their programs are at least as effective as OSHA.
State plan programs welcome constructive review and
analysis of our operations. Properly conducted audits and
program monitoring can be helpful for all federal and state
programs in identifying strengths and weaknesses.
The state plans do not and should not operate in a manner
identical to OSHA. OSHA has often interpreted at least as
effective to mean identical to OSHA which is becoming
increasingly problematic.
OSHSPA members would welcome the opportunity to work with
OSHA in developing effective measures, and an effective
auditing system that will better ensure that state plans and
federal OSHA are equally accountable to the American workers
and general public regarding overall program effectiveness.
The recent OIG report concluded that, ``OSHA has not
designed a method to determine that state plans are at least as
effective as federal OSHA in reducing injuries and illnesses.''
The same report recommended that OSHA should define
effectiveness, design measures to quantify impact, establish a
baseline, and revise their state plan monitoring process.
The OIG report appears to validate many of the issues and
concerns previously brought up by OSHSPA regarding OSHA's state
plan monitoring process.
OSHSPA fully supports OSHA's efforts to develop and use
NEPs to address workplace hazards that pose a real and
significant threat to employee and employer safety and health.
And we encourage that memberships voluntarily participate as
appropriate.
However, OSHSPA has significant concerns about OSHA's
decision to mandate that state plans adopt all of its NEPs. The
OSH Act clearly indicates that state plans are charged by
Congress to identify their needs and responsibilities in the
area of occupational safety and health.
OSHSPA disagrees with OSHA's interpretation on the matter,
and will continue to take actions necessary to protect state
rights associated with the administration or state plan OSHA
programs.
Last year, OSHA also informed state plans that it would be
revising its penalty calculation procedures associated with
citations, and that it intended to mandate that all state plans
either adopt identical or very similar procedures that would
result in substantial penalty increases.
State plans were not consulted on this proposed change, nor
did OSHA provide state plans with any empirical data which
supported its rationale for adoption of these new penalty
procedures.
OSHSPA members expressed substantive concerns to OSHA about
the potential negative programmatic and resource impacts that
their new penalty calculation procedures would likely have on
their programs.
In closing, OSHSPA is fully supportive of credible and
meaningful partnership with federal OSHA and we encourage
Congress to support such a 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 dully elected governors or other
officials. And in addition to the protocols provided by
Congress and federal OSHA, also operate under state
constitutions and legislative processes.
Like OSHA, each state plan program is staffed with
dedicated occupational safety and health professionals with
years of valuable service. 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 effects that
its unilateral policy decisions have on state plan programs.
Thank you again for the opportunity to address state plan
issues. And I welcome any questions.
[The statement of Mr. Beauregard follows:]
Prepared Statement of Kevin Beauregard, Chair,
Occupational Safety and Health State Plan Association (OSHSPA)
Mr. Chairman, Members of the Committee: Thank you for the
opportunity to testify today and to discuss issues of importance to
members of the Occupational Safety and Health State Plan Association
(OSHSPA). Eleven members of this subcommittee represent States that
have either comprehensive or public sector-only State Plan programs, so
many of you are likely very familiar with many of the items that I will
cover today. When OSHA was established, Congress specifically
encouraged states to develop their own occupational safety and health
programs and 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 program is
``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 OSHSPA to
address common issues and facilitate communication 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 education and outreach,
consultation and enforcement. 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. 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, overhead high voltage lines, and workplace violence. 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 an annual Grassroots
Workplace Protection report which highlights many of these unique and
innovative state initiatives. Over the past few years, OSHSPA members
have grown increasingly concerned in regard to several issues,
addressed below, that are significantly impacting the administration of
our State Plan programs.
Funding of State Plans
There should be an expectation that employers and employees in all
States 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 percentage for State Programs
has diminished significantly over the years. Currently, State Plans
operate in 27 States and Territories providing coverage to
approximately 40 percent of private sector workers nationwide and more
than 10 million public sector workers. Additionally, in FY 2011 State
Plans accounted for approximately 60 percent of all enforcement
activity nationwide. However, in FY 2011, State Plans received only18.6
percent of the total federal funds allocated for OSHA programs.
Federal funding of State Plans as a subset of total OSHA funding
has grown increasingly disproportionate over the last ten years. The
total federal funding for OSHA in FY 2001 was $425.8 million (including
$88.4 million for State Plan Programs), and total OSHA funding for FY
2011is $557.4 million (including $104.2 million for State Plan
Programs). In the past decade, OSHA's federal funding, excluding State
Plan and State Consultation programs, has increased approximately
47.5%. In comparison, State Plan total federal funding over the same
time period has increased approximately 17.8%. The FY 2011 State Plan
funding figure includes an additional $1.5 million for the creation of
the Illinois State Plan program in FY 2009. If this funding is not
included with the other State Plan increases, the remaining State Plan
Programs collectively have only received a 16.1% federal funding
increase over the past decade, and approximately 13% of that increase
was received in FY 2010. Additionally, the FY 2010 funding increase was
not distributed in an equal percentage across-the-board manner to all
State Plans, but rather via an antiquated federal OSHA funding formula.
As a result, many State Plans received less than half of the allocated
13% increase. It is also important to note that the increase in FY 2010
federal funding for State Plans was provided after numerous years of
State Plans receiving little or no annual federal funding increases.
State Plans are very appreciative of receiving the FY 2010 increase as
it has helped offset some of the increases in program costs caused by
inflation; however, as the figures above reflect, the State Plan
increase is only a fraction of the federal OSHA increase over the same
time period. OSHSPA's position is that it is important to provide
adequate funding for both OSHA and State Plans to better ensure
positive progress continues to be made in the areas of occupational
safety and health.
OSHSPA believes that it is also important to note that State Plan
federal funding increases significantly trailed the rate of inflation
during the 2000s. The State Plan line item of the OSHA Budget was not
assessed a COLA increase when COLAs were distributed to OSHA and other
federal agencies between 2001 and 2010. Anecdotal information indicates
that State Plan grants have been treated in a fashion similar to
``block grants'' or ETA grants even though State Plans have on-going
personnel costs and specific ``benchmark'' position requirements for
safety inspectors and industrial hygienists to maintain final approval
status. This oversight has resulted in shifting 100% of the associated
costs for any necessary COLA adjustments to State funding.
OSHA added approximately 130 new inspectors in FY 2010 in addition
to those positions that they added in FY 2009. Meanwhile, over the past
few years many State Plans have been eliminating positions, holding
positions vacant and furloughing employees due to state budget
reductions and the lack of adequate federal funding. In addition, some
states have been unable to send safety and health compliance officers
to required training at the OSHA Training Institute (OTI) due to budget
constraints. State funding reductions have impacted the ability of many
State Plans to provide the required matching State funds, which results
in equivalent federal funding reductions. In consideration of State and
federal funding deficiencies, the requirement for 50% matching State
funds should be waived whenever a State's funding decreases due to a
balanced budget requirement. This would help to reduce the negative
impact on occupational safety and health within State Plan
jurisdictions facing reductions in both State and federal funding at
the same time and/or in consecutive years.
While the FY 2010 budget provided a one-time increase of
approximately $11.9 million over previous years, State Plans still
``overmatch'' the federal grants by more than $71.5 million. This
translates to the States overall providing approximately 63% of funding
versus 37% federal funding to ensure their programs are ``at least as
effective as'' OSHA. Many State Plans provided a significant overmatch,
yet received less than half of allocated FY 2010 State Plan federal
funding increase. In addition, according to federal OSHA's State Plan
``funding formula'' for FY 2010, 10 of the 27 State Plans had base
grant awards that were underfunded by the amount of $5.7 million
dollars. The existing OSHA ``funding formula'' distributes
approximately one-half of newly appropriated funds to the underfunded
State Plans and approximately one-half to all State Plans. This formula
has been in place for years but has had limited success because of the
lack of federal funding increases overall for State Plans over the last
decade. In addition, changes in State demographics, populations and
industries have rendered the existing funding formula inadequate.
Deficit Reduction Issues
Much attention is currently being placed on the upcoming FY 2012
federal budget to address a soaring national debt and increasing budget
deficit. State Plans understand the need to control federal spending to
a level that is sustainable. In the event that it is determined to be
necessary to reduce OSHA's budget in FY 2012, State Plans respectfully
request that Congress fully consider the disproportionate funding
increases provided to State Plan OSHA programs over the past decade
prior to making across-the-board line item decreases that will once
again disproportionately affect State Plan occupational safety and
health programs. Potential budget scenarios being discussed include
rolling back agency federal funding to FY 2006 or FY 2008 levels. In FY
2009, the public sector-only Illinois State Plan was officially
recognized by OSHA and funded by Congress in the amount of $1.5
million, which accounted for approximately 30% of the entire increase
in the State Plan line item between the years 2001 and 2009. An across-
the-board rollback in the State Plan line item to the FY 2006 or FY
2008 level would result in either the elimination of the Illinois State
Plan program, or more likely, that the other 26 State Plans would have
their budgets reduced sufficiently to adequately fund the Illinois
State Plan. Either scenario would result in a disproportionate
reduction in federal funding to State Plans.
Additionally, if OSHA funding were to be reduced to FY 2006 or FY
2008 levels in an across-the-board manner, it would have the effect of
rolling back State Plan funding to mid-1990's levels. This would
sharply curtail intervention activities and would likely have a severe
detrimental impact on occupational safety and health nationwide.
Although State Plans are certainly willing to make adjustments as
necessary, we do not feel that a disproportionate burden should be
placed on State Plans that will also likely have a disproportionate
impact on occupational safety and health in the 27 State Plan States.
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 then need
to allocate 100% of the funding to provide equivalent occupational
safety and health protections in those states. To prevent this from
occurring and based on the original intent of the OSH Act, the long
term goal should be to fully fund at least 50% of the costs for all
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, state budget reductions, and lack of adequate federal
funding from Congress. The potential impacts, if this trend continues,
are reductions in employer/employee training and outreach, technical
assistance, consultation services, and enforcement. This will have a
major impact on our efforts to reduce injuries, illnesses and
fatalities and will potentially lead to increases in all these areas
after much progress has been made. 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.
OSHA's State Plan Auditing and Monitoring Process
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 States under federal OSHA jurisdiction.
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.
Although States are held to minimum staffing levels, there are no such
staffing benchmarks applied to federal jurisdictions. 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.
In October 2009, the U.S. House of Representatives Committee on
Education and Labor held hearings associated with the Nevada State Plan
OSHA Program. While the Nevada State OSHA Program was the primary
subject of the hearing, testimony provided by a number of participants
pertained to oversight of all State Plan OSHA Programs. Subsequently,
OSHSPA provided written testimony at the aforementioned hearing
expressing concerns pertaining to the existing State Plan oversight
process administered by OSHA.
State Plan Programs are not opposed to OSHA monitoring their
programs, and we welcome constructive review and analysis of our
operations. Properly conducted, audits and program monitoring can be
helpful for all federal and State programs in identifying both program
strengths and weaknesses. OSHSPA believes that it is critical for any
methodology utilized by OSHA to measure State Plan programs based on
valid criteria that allows the States to operate in a way that is ``at
least as effective as'' OSHA. The State Plans do not, and should not,
operate in a manner identical to OSHA. Rather, they should continue to
serve as laboratories of innovation for moving occupational safety and
health issues forward and for fueling creative approaches to ensuring
the occupational safety and health of workers.
There should be an expectation that all federal and State
occupational safety and health programs are administered in an
effective manner. Specifically in regard to ``effectiveness,'' OSHSPA
has indicated that, prior to conducting additional comprehensive State
Plan monitoring activities, OSHA and the State Plans should work
together to establish well-defined performance measures and goals for
both State Programs and OSHA. OSHSPA has indicated that established
benchmarks could include, but would not be limited to: minimum levels
for staffing, federal/state funding, training, equipment, quality
control, internal auditing and outcome measures for both State Plans
and federal OSHA. Following the establishment of effectiveness
criteria, it was recommended by OSHSPA that there be regular audits of
both State Plan Programs and OSHA's national, regional and area offices
against those established benchmarks. OSHSPA also believes that since
OSHA will be conducting additional comprehensive monitoring activities
of all State Plan Programs for ``effectiveness'' and quality control,
it would be prudent for OSHA to conduct similar monitoring of its own
offices to ensure that they are also operating in an ``effective''
manner.
There is no specific definition or adequate guidance for the ``at
least as effective as'' language contained in the OSH Act and this has
caused significant issues in regard to OSHA's auditing and monitoring
of State Plans. As a result, OSHA has often interpreted ``at least as
effective as'' to mean ``identical to'' OSHA. State Plans have raised
the issue that an inadequate definition of ``at least as effective as''
and the failure to establish valid program criteria that focus on
outcomes rather than processes makes it infeasible to systematically
and accurately evaluate either State Plan or OSHA effectiveness. This
issue was specifically brought up by State Plans as early as 2002 when
it was published in the Federal Register, Volume 67; Number 185, dated
September 25, 2002. At that time, OSHA indicated that it agreed with
``the principle that State Plan requirements are not required to be
identical is an important statutory feature of the State Plan Programs.
The language and structure of the part 1953 regulation acknowledge the
important principle that State plan requirements need not be identical
* * *.'' However, OSHA's changing position on the issue in subsequent
years and its failure to resolve the matter has contributed
significantly to monitoring and auditing deficiencies.
Since OSHA's often interprets ``at least as effective as'' to mean
``identical to'' in regard to measures, it has become a constantly
moving, often unobtainable, target which compares mandated activity
trends and policies within federal OSHA to those occurring within each
State Plan. A primary concern is that OSHA has displayed a tendency to
focus its oversight on activities, indicators, and measures that have
not necessarily been directly linked to positive outcomes associated
with occupational safety and health. Examples of such measures and
indicators include: percent serious rate of violations cited,
contestment rates, penalties assessed, penalties retained, and
classification. Additionally, some of these items, if individually
interpreted, can lead to conclusions that are not factually based or
supportable in regard to program effectiveness.
Despite the above mentioned concerns previously broached by OSHSPA,
OSHA proceeded to conduct its FY 2009 and FY 2010 State Plan monitoring
and auditing based on these inadequate indicators. Subsequently, OSHA
issued State-specific 2009 Enhanced Federal Annual Monitoring and
Evaluation (EFAME) Reports of all State Plan OSHA programs and will be
following up with those recommendations for the FY 2010 FAME.
Following the release of the 2009 EFAME reports, OSHSPA issued a
press release that reiterated our concerns with the current monitoring
and auditing process. It continues to be OSHSPA's position that our
members would welcome the opportunity to work with OSHA in developing
effective measures and an effective auditing system that will better
ensure that State Plans and federal OSHA are equally accountable to the
American workers and general public regarding overall program
effectiveness. I am pleased to report that such a joint effort has been
recently initiated.
Office of Inspector General Report
On March 31, 2011 the U.S. Department of Labor, Office of Inspector
General--Office of Audit (OIG), issued Report #02-11-201-10-105
entitled ``OSHA HAS NOT DETERMINED IF STATE OSH PROGRAMS ARE AT LEAST
AS EFFECTIVE IN IMPROVING WORKPLACE SAFETY AND HEALTH AS FEDERAL OSH
APROGRAMS.'' This audit was performed partly in response to a special
review that OSHA conducted of the Nevada State Plan OSHA program. OIG
indicated the objective of their review was to answer the question:
``Has OSHA ensured that State Plans operate OSH programs that are at
least as effective as Federal OSHA?'' The OIG report indicates that
``OSHA has not designed a method to determine that State Plans are at
least as effective as Federal OSHA in reducing injuries and
illnesses.'' Further, OIG made the following four recommendations to
the Assistant Secretary for Occupational Safety and Health: 1) define
effectiveness; 2) design measures to quantify impact; 3) establish a
baseline using Federal OSH programs to evaluate State Plans; and 4)
revise monitoring processes to include assessments about whether State
Plans are at least as effective as Federal OSHA Programs.
The OIG report appears to validate the issues and concerns
previously brought up by OSHSPA regarding OSHA's State Plan monitoring
process and it also supports the recommendations previously submitted
by OSHSPA regarding how OSHA could address the issues and concerns.
Training of Enforcement Personnel
It is the stated goal of the current administration as well as
previous ones that there be more consistency and transparency between
federal OSHA and State Plans, particularly in the way mandated federal
regulations are enforced. Many State Plans do not send inspectors to
needed courses taught at the OSHA Training Institute (OTI) due to out-
of-state travel costs and/or travel restrictions in times of budget
tightening. OSHSPA requests consideration to create a separate State
Plan training line item to allow 100% federal funding to be utilized
for travel and training of State Plan personnel. In FY 2010, it was
estimated that $3.1 million would cover individual OTI and State Plan
internal training courses for State Plan personnel.
National Emphasis Programs (NEPs)
OSHSPA fully supports OSHA's efforts to develop and use NEPs to
address workplace hazards that pose a real and significant threat to
employee and employer safety and health. Many State Plans have
benefitted over the years from OSHA's identification and development of
NEPs to address existing or emerging hazards that threaten the lives of
America's working men and women. OSHSPA is more than willing to work
with OSHA on the identification and development of NEPs and to
encourage our membership to voluntarily participate in these programs
as appropriate.
The current administration has recently committed to including
OSHSPA in the development process of NEPs; however, this does not
adequately address concerns associated with its decision last year to
mandate that State Plans adopt all of its NEPs. Specifically, OSHA has
indicated that its interpretation of the OSH Act provides its agency
with the legal authority to require State Plan participation in all
NEPs (see attached letter from Assistant Secretary David Michaels dated
October 12, 2010, and OSHSPA's May 13, 2011 response). OSHSPA disagrees
with OSHA's interpretation on this matter and will continue to take
actions necessary to protect States' rights associated with the
administration of State Plan OSHA programs.
OSHA's recent implementation of the National Emphasis Program (NEP)
on Recordkeeping in FY 2010 is an example of a resource impact for
State Plans resulting from OSHA's insistence that State Plans
participate in its emphasis program. Congress provided OSHA with
approximately $2 million dollars to address such Recordkeeping
initiatives in 2009-2010 but provided no additional monies to State
Plans. OSHSPA members voiced concerns, not only about OSHA mandating
adoption of this NEP, but also to the targeting methods utilized for
the NEP. After OSHA implemented this NEP, it was subsequently suspended
many months later to address targeting deficiencies that were
previously identified by OSHSPA members. Inspections under the
Recordkeeping NEP can last hundreds or even thousands of hours, which
takes away from other planned enforcement inspection activities. If
Congress does not provide similar federal funding to State Plans, the
initiative becomes an unfunded mandate for States, which are already
significantly underfunded by Congress. Additionally, although an
emphasis program may be deemed appropriate, it could divert attention
from areas of greater need in an individual State Plan.
The OSH Act of 1970 provides in Sec. 2(b) (11):
``(b) The Congress declares it to be its purpose and policy *
* * to provide for the general welfare, to assure so far as
possible every working man and woman in the Nation safe and
healthful working conditions and preserve our human resources--
(11) by encouraging States to assume the fullest
responsibility for the administration and enforcement
of their occupational safety and health laws by
providing grants to the States to assist in identifying
their needs and responsibilities in the area of
occupational safety and health, to develop plans in
accordance with the provisions of this Act, to improve
the administration and enforcement of State
occupational safety and health laws, and to conduct
experimental and demonstration projects in connection
therewith * * *'' (Emphasis added).
As the OSH Act indicates, State Plans are charged by Congress to
identify ``their needs and responsibilities in the area of occupational
safety and health.'' OSHA's position that a State Plan must conduct
inspections in a given industry constitutes federal micro-management of
State resources and runs directly contrary to Congress's stated intent
for the States to identify their own needs and responsibilities for
assuring ``safe and healthful working conditions'' in their State.
OSHSPA finds OSHA's position that a State Plan should use its
limited resources to address a hazard that may admittedly be a priority
elsewhere in the nation, but is not one in each State Plan, to be
unsupportable. Further, it is OSHSPA's position that OSHA does not have
the legal authority nor is it correct from a policy making standpoint
to require State Plans to adopt NEPs.
Penalties
On June 22, 2010, OSHA informed State Plans that it would be
revising its penalty calculation procedures associated with citations
and that it intended to mandate that all State Plans either adopt
identical procedures or very similar procedures that would result in
the same type of penalty increases. State Plan States were not
consulted on this proposed change, nor did OSHA provide State Plans
with any empirical data which supported its rationale for adoption of
these new penalty procedures. The new penalty procedures were expected
to increase assessed penalties an average of 350% over the existing
averages. Some State Plans have lower penalty assessment averages than
OSHA, and adopting the new OSHA procedures would have resulted in a
much more drastic increase.
OSHSPA members were not provided any information by OSHA to
indicate that research or analysis was conducted to assess the
potential negative effects that a penalty increase could have on
employers, employees and the effectiveness of federal and State
Programs. State Plan States expressed substantive concerns to OSHA
about the potential negative programmatic resource impacts that the new
penalty calculation procedures would likely have in areas such as
increased informal conferences, increased settlement agreements, and a
significant increase in the number of adjudicatory hearings. This is of
particular significance to many States that are facing funding and
personnel reductions. In addition to all other concerns expressed,
State Plans indicated that a penalty increase during an economic
downturn seemed ill-timed. Finally, State Plans have also expressed
concerns about the manner and process that OSHA utilized in its revised
procedures to determine the final assessed penalty.
The overwhelming majority of OSHSPA members have very serious
concerns about OSHA's unilateral development of a new penalty policy
and its attempt to mandate that all State Plans adopt it.
Safety and Health Protections for State and Local Government Employees
OSHSPA fully supports safety and health coverage for all State and
local government employees and believes the best way to do this is with
public sector State Plan coverage in all States. One impediment to such
plans has been OSHA's stance that any State wishing to establish a new
State Plan must work by itself through its own Congressional delegation
to obtain federal matching funds. OSHSPA would encourage Congress to
look for ways to encourage States to consider public sector-only State
Plans, as recently occurred in Illinois.
Voluntary Protection Programs
OSHSPA supports continued federal funding for Voluntary Protection
Programs. VPP clearly demonstrates to employers and employees the
tremendous value provided by a comprehensive health and safety program.
Closing Remarks
Past and current OSHA administrations have routinely espoused the
benefits of ``partnership'' between State Plan Programs and OSHA.
OSHSPA is fully supportive of a credible and meaningful partnership
with federal OSHA and we encourage Congress to support such a
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
processes. State Plans are not just more ``OSHA offices'' and are not
intended to be identical to federal OSHA, but rather were created 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 as 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. All too often, the ``one-voice''
is interpreted to mean ``federal OSHA's voice.''
Like OSHA, each State Plan Program is staffed with dedicated
occupational safety and health professionals with years of valuable
experience. Although OSHSPA members' contributions could be a more
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 plans and 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. 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 effects that its
unilateral policy decisions have on State Plan Programs.
Together, State Plan Programs and OSHA can successfully improve
workplace conditions and continue to drive down workplace injury,
illness and fatality rates. We should always be working toward program
improvement with the single goal of having a positive impact on
nationwide occupational safety and health. Establishing an ``us versus
them'' relationship between OSHA and State Plan Programs will do little
to enhance nationwide workplace safety and health.
OSHA, State Plan Programs and Congress need to join forces to best
ensure that 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 also 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 again for the opportunity to discuss
State Plan issues. I look forward to your questions.
______
Chairman Walberg. Thank you.
Claiming my time for questioning, Mr. Lewis, let me ask you
if--I think a fairly straight forward question here.
If federal OSHA were placed under scrutiny similar to that
of the state plans, would it be deemed an effective program?
Mr. Lewis. I am not sure that I can't give a simple answer
to that. And I am not sure that I could give an answer to that.
I mean, I think that was the gist of our audit that whether
we looked at what the federal government is measuring and
monitoring in their program, or what the states are. Neither
really comes to a conclusion of what is effective.
I mean, they are both at the federal level and at the
states, they are looking at, you know, how the injury and
illness rates are changing or dropping. But what we don't see
is how have you established the actions that you have taken,
whether in the federal program or the state. What impact did
those actions have on that rate dropping?
So, I can't----
Chairman Walberg. So does that----
Mr. Lewis. I can't tell you because OSHA, you know,
couldn't tell you. They know for a fact, we took these actions.
It has this impact.
Chairman Walberg. Okay.
Mr. Lewis. So the gold standard has not been met
necessarily.
Chairman Walberg. Correct. By the [inaudible] either.
Okay. Thank you.
Mr. Beauregard?
Your testimony suggests that the state plans understand
federal OSHA's oversight role of the individual programs.
However, you make clear that the state plans believe that the,
``at least as effective as'' does not mean identical to the
federal OSHA.
In your opinion, what are the appropriate measures for
determining state plans' effectiveness? And illustration would
be helpful.
Mr. Beauregard. I believe there is many different things
that can be utilized to determine effectiveness.
But the bottom line when it comes to safety and health
programs, whether it is an OSHA program or a state plan
program, or a corporate program is--what are the outcome
results?
Are you reducing injuries and illnesses and fatalities?
And in order to look at that, there are a number of things
that you can look at. You can look at workers' compensation
claims or payouts or increases. You can look at--in North
Carolina, we have a Site-Specific Program that is adopted off
of the OSHA program, the SST program.
In that program, we actually analyze the difference--the
impact that we have based on the before an OSHA intervention
and after an OSHA intervention, and determine whether or not we
have an impact.
In a 5-year study, we have had over 40 percent reduction in
injuries and illnesses--as those establishments that we have
had some type of intervention activity with. And so I think
that is a clear sign that there is effectiveness in the outcome
of that program.
There are certain mandated measures that I do think need to
be looked at. I think you need to look at staffing. The state
plans had benchmark requirements. The federal OSHA does not
have benchmark requirements.
As a result, state plans are able to do many more
inspection activities than our federal counterparts in certain
areas. And I can't say that is the case in all states, but I
can certainly say it is the case in North Carolina.
We do more enforcement activities in our state than OSHA
does almost in their entire Region 4. And I do think that there
is more than one way to have an impact on injury and illness
rates, just as enforcement inspections and penalties have an
impact, education and outreach training activities,
consultations can also have an impact.
But in regards to the actual outcome measures, I think you
need to look at injury and illness rates, you need to look at
fatality rates.
It may surprise some if you go on federal OSHA site today
and you look at fatalities nationwide, you look at state plan
fatalities that occurred in state plans and fatalities that
occurred in OSHA programs right now through April--mid-April,
66 percent of the fatalities have occurred under federal
jurisdictions, 33 percent under state jurisdictions.
Catastrophes, 72.5 percent of the catastrophes that have
occurred in this current year have occurred in federal
jurisdictions.
If you look at just simply fatalities and catastrophes, one
would probably lead to the conclusion that the effectiveness
issue probably needs to be looked at in the OSHA program as
well.
Chairman Walberg. Thank you.
Mr. Gerstenberger, in your testimony you talk about--
written testimony, talk about the cooperative effort between
the Michigan Occupational Safety and Health Administration,
MIOSHA, and Tree Care workers and Michigan Green Industry
Association.
How has this cooperation helped protect those working in
Michigan's tree industry, in specific ways?
Mr. Gerstenberger. Specifically, our work in Michigan was
sub regulatory. We weren't working to revise any regulations in
the state.
We worked through a variety of different outreach measures
to reach the industry. Most recently, Michigan OSHA provided
grants to a local organization known as the Michigan Green
Industry Association.
And we cooperated through the Michigan Green Industry
Association to train arborists under that grant to reach them
with very important information affecting some of the most
pronounced hazards that we face in our industry. Hazards
associated with tree felling.
Going forward, I know Michigan Green Industry Association
has already received another MIOSHA grant that will address a
wide variety of hazards, again faced by----
Chairman Walberg. So the flexibility can be helpful in----
Mr. Gerstenberger. Absolutely.
Chairman Walberg [continuing]. And working with the
industry.
Mr. Gerstenberger. Yes.
Chairman Walberg. My time has expired. And I have got to
bide by my own rules.
So, thank you. And maybe the question will come up later.
I turn to--I recognize the ranking member for questioning.
Ms. Woolsey. Thank you, Mr. Chairman.
Mr. Gerstenberger's testimony is absolute proof of why we
need to have a representative from OSHA sitting at this table.
Wouldn't you have liked to ask somebody from OSHA what they
are doing or why aren't they doing something about the tree
care industry's concerns?
I would have.
So we need these people at the table for these hearings.
Mr. Frumin, is OSHA undermining state efforts to promote
worker health and safety?
Mr. Frumin. Hardly. I think they are making a reasonable
attempt now, a better attempt than in the past, to assure that
states are complying with their own plans.
And more than that are properly training their staffs,
properly identifying violations, and assessing penalties that
amount to real deterrents. So, undermining it--hardly, no.
Ms. Woolsey. Well, are they providing the support that the
states should be able to count on for setting up state programs
and helping the states measure up to the floor?
I mean, this is what this is about. State programs have to
meet this federal floor. And the states can do anything more
that is appropriate, if they want to invest in it----
Mr. Frumin. I am not aware of any states who have
complained that the Feds, the federal OSHA has failed to help
them establish state plans. That has been a consistent feature
for 40 years. The Feds have helped states do that.
Funding is always an issue. But, you know, that is a fact
of life.
And beyond that, I think we can hear from a number of
states who have been appreciative of the assistance that the
federal OSHA has given them in a whole host of areas.
But it is more than that. It is also offering leadership.
It is offering a national program when you have employers from
coast-to-coast.
We need to look at these employers or industries that
operate throughout the country. We need to look at them in a
consistent way.
Some employers have some understanding of how to operate
under a national program. That is why we have a federal law.
Ms. Woolsey. Right, and before the federal law, before OSHA
was part of the federal law, how did the states measure up?
Were they doing a great job?
Mr. Frumin. No. We have a federal law because the states
failed, and the Congress realized it in frustration in 1970.
It is not that there wasn't an argument about it. Some
people said, well, we will let the states continue to do it.
But it was obvious by that point, the states were failing left
and right. The consequences were intolerable.
Ms. Woolsey. So, what do you think will happen to the
safety programs, both federal and state, if we have a 23
percent cut in the OSHA budget?
Mr. Frumin. Well in layman's terms, we can kiss it goodbye.
There is no way any state or federal administrator can keep a
reasonable enforcement program going with those kinds of budget
cuts.
It is really--it is beyond shortsighted. It is simply
intolerable, and does not respect the needs of American workers
and families and communities.
Mr. Frumin. And employers for that matter.
Ms. Woolsey. Right.
Mr. Frumin. Who rely on strict enforcement to keep their
costs down.
Ms. Woolsey. Right.
Well, Mr. Beauregard, what do you think of the 23 percent
proposed reduction for fiscal year 2012 in the OSHA budget?
Mr. Beauregard. I think if there is any significant
reduction on either the state OSHA budgets or the federal OSHA
budget, it will certainly have an impact on any type of
activities that either in state plans or the federal OSHA can
conduct.
Quite frankly, none of us can sustain that type of a
decrease. It would probably have a broader impact on the
federal OSHA program because the states are supplying so much
of the funding to the programs to begin with.
Ms. Woolsey. That is true, that is true. But also, states
can do more, so they are paying for the additional above the
floor.
Mr. Beauregard. Well, one of the issues is--Mr. Frumin
brought up the North Carolina issue. Back when that tragedy--
and I agree, it was a terrible tragedy in regards to Imperial
Foods' fire.
The state of North Carolina was criticized substantially by
not having enough inspections or enough activities.
What happened after that was the state of North Carolina
provided sufficient--more funding for the program.
What didn't happen is the federal government didn't provide
any funding for the program.
And so as a result, since that time the state has put in $9
million into the program, and federal funds haven't been there.
And so we received about $2.5 million of federal funds.
Had we received the entire amount, we certainly could have
done a lot more within our state.
Ms. Woolsey. Certainly.
What do you think would happen to the state plans? Where
would they go if they become underfunded and not able?
Would they just turn everything right back to the Feds?
Mr. Beauregard. You know, it is certainly a possibility.
Right now there are many different size programs. There are
many different demographics within different states. And so the
programs themselves are of many different sizes.
North Carolina runs one of the largest programs in the
country. And currently we have twice the staff as they have in
federal jurisdiction states such as Georgia.
And so, we would probably have a much smaller program if we
had significant reductions, but we would probably still have a
program. Whereas, you may have a smaller state that may not be
able to do that.
Ms. Woolsey. Thank you, Mr. Chairman.
Chairman Walberg. Gentlelady's time has expired.
I recognize Chairman Kline.
Mr. Kline. Thank you, Mr. Chairman.
Thank you to our witnesses today.
Mr. Gerstenberger, just a comment about your industry. I
must admit that I am terrified every time I see folks in your
industry at work.
They did some work in our backyard. We have kind of a
woodlot back there. Better them than me. Chain saws, 40-50 feet
in the air, god bless you.
Mr. Beauregard, I want to pick up a little bit on this
funding issue, a lot of discussion about the proposed cuts and
appropriations.
But for the last 3 years, OSHA has received increases in
its appropriation. And yet, you have indicated that maybe some
of that money didn't come down to North Carolina, the states.
Can you address that allocation of funds?
Mr. Beauregard. I sure can.
Historically over the last decade, the state plans have
received very little federal funding increases. On an annual
basis, OSHA's budget went off every year. But the state budget
line item, because the states are one line item within the
federal OSHA budget, the state line item didn't necessarily go
up.
We didn't receive cost of living increases when federal
OSHA received cost of living increases. That becomes
problematic for the states because our positions are funded
both with state and federal funds.
But when we don't receive the cost of living increase, it
means that the states either need to go ahead and address that
with more funding and overmatching funding, or not address the
cost of living matter.
And so as a result, it has become very imbalanced. The
exception to that was a few years back.
The OSHSPA saw the writing on the walls. And our members,
you know, saw that they were going to be having difficulties
with continual years and not receiving these increases. We
began an educational campaign to let people know exactly what
was happening.
In 2010, we got a significant increase. And we were very
appreciative of that. Overall, it was about 13 percent.
However, that wasn't distributed equally among all the
state plans. Federal OSHA has a funding formula which is quite
out of date. And we brought that to their attention.
And it hasn't been adjusted for demographics, or anything
like that within the various states. And as a result, in that
year that we received 13 percent, a state like North Carolina
actually received 6 percent. So even though we are already
overmatching over $6 million, we received a 6 percent increase
in a year where everybody else within the OSHA program received
a greater increase.
In many states, I think, there was 15 states received less
than a 13 percent increase. There were some states that
received greater than a 13 percent increase.
But that amount of funding that was distributed helped
those states that were having issues. But it certainly was not
enough for those states that had been severely underfunded.
Mr. Kline. So your testimony here today representing your
organization is that the money was distributed, was allocated,
perhaps unfairly, and not very efficiently or effectively.
Is that correct?
Mr. Beauregard. OSHA has a funding formula that they
developed a long time ago. And the purpose was to create parity
among the states.
The problem with it is the funding hasn't been there. And
so there is even more disparity now than there was back when
the formula was distributed.
And they did distribute it in a manner they saw fit. But it
wasn't necessarily help to many of the states.
Mr. Kline. Okay, sounds a little confusing.
Mr. Beauregard. It is.
Mr. Kline. Let me move to--shocking that there could be
something coming from a federal bureaucracy that would be
confusing.
Sorry, a little--okay. Sorry, just slipped out.
Let me stay with you if I could here, Mr. Beauregard, that
prior to this administration, the policy for the adoption of
the National Emphasis Programs, by state plans, was that
adoption was strongly encouraged but it wasn't mandatory.
The state plans are now required to adopt these NEPs which
I understand the state plans don't favor that requirement.
Can you explain what the concern is over this mandate?
Mr. Beauregard. That is correct. The majority of the state
plans do not favor mandatory adoption. There are some state
plans that don't appear to have an issue with it.
The issue there is that we do think that OSHA over the
years has developed some NEPs that were very valuable for both
OSHA and some state plan states.
The problem is that each state has different makeups and
demographics, different industries. And what may be good for
one area of the country may not be an emphasis for another area
of the country.
And by mandating the NEPs, first of all, OSHA is saying
that even though you are overfunding your state, you are not
receiving your 50 percent. We are going to tell you what to do
with your own money that you are doing.
But secondly, they may be reprioritizing where you need to
focus your resources. And we may have more pressing needs in
our state. But now that we have a mandatory NEP, we have to
drop what we are doing there.
And Mr. Frumin indicated that five inspections is not
significant. Well, I tell you right now, there are over 11
NEPs, and they keep coming out. They don't seem to go away.
And so when you keep reallocating five inspections here,
five inspections there, it does have an affect, particularly on
the smaller programs that don't have the staffing.
And so they are left with a decision that they address the
things that they really think are problematic in their state,
or they address things that OSHA has identified may be
problematic in their state.
Mr. Kline. Thank the gentleman, my time has expired.
Chairman Walberg. Thank you.
Recognize the gentleman from South Carolina, Mr. Gowdy?
Mr. Gowdy. Thank you, Mr. Chairman for calling this hearing
and also for your leadership on this issue, as well as that of
the chairman of the full committee, Mr. Kline.
Mr. Beauregard, I was noting that in the--I believe it is
the grassroots publication, a partnership between Boeing and a
company in my district, BE&K-Turner joint venture.
And I want to thank you to the extent that you are also
mentioned in this publication for highlighting that
partnership. And hopefully if the state of South Carolina can
keep dodging complaints and lawsuits by the NLRB, we can
continue to create jobs through Boeing and other companies in
South Carolina.
Mr. Lewis, I think you also have a South Carolina
connection. Is that right?
Mr. Lewis. I do.
Mr. Gowdy. Welcome.
Mr. Lewis. Thank you.
Mr. Gowdy. Can you--I heard South Carolina is maybe
mentioned a couple of times by Mr. Frumin and by my colleague
from California. Can you tell us what states are doing well and
why?
And to the extent South Carolina may need to improve, how
we can.
Mr. Lewis. Well, looking at the data that is being tracked
for the state plan states, I don't remember the rankings of
every state, but as I recall, pretty much across the board over
the past number of years, there have been reductions both in
injuries and fatalities.
What I couldn't address would be why that is happening per
se. And I think that was the concern in our audit.
Are we sure we know even though fatalities have dropped,
and injuries have dropped, what exactly was the cause of that,
and, you know, to what extent was it the investment in our
programs?
And if we are doing something in the program that is not
having the greatest impact, then let us shift those resources
to something that is having a greater impact.
Mr. Gowdy. So your research indicated that the number of
accidents and injuries has dropped in South Carolina?
Mr. Lewis. Yes, I believe across all the states that we
have looked at, the data had--the indicators had dropped for
all states.
Mr. Gowdy. So despite some dissatisfaction with the size of
the fines in South Carolina, we are doing a better job which
would tend to rebut any notion that there is a connection
between the size of the fine and people's willingness to do a
better job providing for their workers' safety.
Can you tell me what specific measures of success exist by
which states can compare themselves to federal OSHA?
Mr. Lewis. Well, I think the ultimate measure would be to
look at--I mean, this is a program about health and safety in
the workplace--would be to look at the conditions of health and
safety in the workplace.
What injuries do we have, illnesses, fatalities?
So certainly seeing those drop, that is a measure of the
goal we are trying to achieve. But again, the question is the
success of the program, what was it we did in the program that
achieved that success?
Or did that success could come about for other reasons, you
know, do the demographics in the state could have changed. The
economy could have changed. The mix of industries, other things
could have an impact on why those rates go down or go up.
They are not attributable just to the programs we are
running. And that is what we want OSHA to establish as best
they can.
You know, what is having an impact and what is not?
Mr. Gowdy. Mr. Beauregard, training and outreach are two of
the most important components to proactive safety. Can you
describe how the state plans engage in training and outreach?
Mr. Beauregard. Each state does some things differently
regarding the training and outreach. So what I prefer to do is
just explain how we do it in our state.
And then if there are follow-up questions, answer those.
We take training and outreach very seriously. We have a
comprehensive training and outreach program.
As a matter of fact, every single document that we have,
and we produce, is available through a downloadable mechanism
on our website. So you can actually download everything we have
onto your PC or laptop or individual DVD.
We have put together 60 PowerPoint presentations primarily
for middle and small size employers that may not have the
safety and health program. We put on webinars. We do outreach
training activities. We do partnerships and alliances where we
do training out in the field.
We very strongly believe that training is a critical
component of ensuring that you are reducing injuries,
illnesses, and fatalities.
The grassroots publication that you have, I think, outlines
a lot of different training activities that are going on in
other states. We do think that you need to have a strong
training component which is where you should start when you
identify a problem area.
Then you should intervene with some consultation activity.
And then you should follow it up with some enforcement
activity.
Mr. Gowdy. Thank you.
Thank you, Mr. Chairman.
Chairman Walberg. I thank the gentleman.
And now we recognize----
We will let him catch up here.
I will recognize the gentleman from Indiana, Dr. Bucshon?
Mr. Bucshon. Mr. Chairman, I yield back my time to you.
Chairman Walberg. Well, I am glad I recognized you. Thank
you, sir.
Anything back from a doctor is great, as long as it is a
good report, right?
Let me turn to Mr. Gerstenberger and continue some question
that I wanted to follow up on.
Your testimony discusses the use of safety and health
plans. Can you describe how these work to improve safety?
And secondly along with that, do you have any concerns
about OSHA's effort known as the I2P2 to regulate in this area?
Mr. Gerstenberger. Certainly, a very good question.
As an association, we embrace the concept of I2P2 if you
will, or safety and health plans. Indeed, we produced a model
safety and health plan for our members to use as a best
practice.
I think it can be problematic when looking at a regulation
focusing on I2P2 in that it can become a little too restrictive
or prescriptive as to how the program should be carried out.
To be effective, a rule would have to be very flexible and
dynamic to be able to be adapted to the variety of industries
that it would regulate or the variety of businesses that it
would regulate.
Our program, as a best practice provided to our industry,
obviously gives the employer the latitude to adjust to their
particular situation.
I think what would be most effective at the federal level
if federal OSHA were to push out the various guidance it has
around I2P2 or safety and health programs through compliance
and outreach efforts in a manner to vet the outreach that it
has before it considers promulgation of a rule.
Very briefly as a model for such rule-making, the
California program is not bad. It doesn't provide any
particular problems for the industry.
The problem in promulgating too inflexible of a rule or too
prescriptive a rule is that it changes that small employer's
focus away from safety for its workers toward citation
avoidance, and just chasing things that could be regulatory out
of compliance, as opposed to focusing on safety.
So we would like to see a flexible and dynamic rule,
obviously with a lot of guidance and outreach around it, such
as the cases in California right now.
Chairman Walberg. Thank you.
Again, Mr. Gerstenberger, the Tree Industry Association has
recognized that English--and of course in working with the
employees we cross the language barrier in your industry.
You have recognized that English is not the first language
of a number of workers.
Can you describe your industry's bilingual education and
outreach in this area?
Mr. Gerstenberger. Certainly, because we can have all the
rules in the world, but if they are not understood, certainly.
First and foremost, let me characterize the Hispanic
component of our workforce.
Across the country, across the board, the component of our
workforce that is Hispanic is approximately 25 percent. And
that varies considerably depending on what region of the
country you are in. For instance in California, in many areas,
it is almost 100 percent.
Secondarily, it is very important to understand not only
that the--do you have a component of your workforce that is
Hispanic, but you need to know the ethnic origins of that
Hispanic workforce, and for instance in our situation, the vast
majority of that Hispanic workforce is from Mexico, Central
America.
The reason it is important to know that is to be able to
address the idioms of the dialect, the very words and their
meaning in translating your programs into Spanish.
Beyond that, our method of addressing worker safety and
health issues for the Hispanic workers is quite simple. We
translate all our safety programs into Spanish using the
appropriate dialect and idioms for the target audience.
Among our employers--we distribute these programs through
employers, and allow them to use them.
It has proven to be quite successful. We have identified
any of a number of bilingual trainers in our industry. And we
utilize them at our trade shows and so forth, again to address
the Hispanic workforce in our industry.
So it is quite simple and straightforward.
Chairman Walberg. Well, I applaud you for that effort.
Mr. Gerstenberger. Thank you.
Chairman Walberg. Because as I joked earlier, up a tree
without a noose is good. And certainly the language, making
sure that all is understood.
I yield back my time, and recognize the gentleman from New
Jersey, Mr. Payne?
Welcome.
Mr. Payne. Thank you, thank you very much. And thank you
for calling this very important hearing.
As OSHA's been an issue that has been discussed for decades
and decades, we certainly have been moving towards trying to
protect our workers with having health and safety regulations.
I have a question, Mr. Frumin. The question of regulations,
the question of sort of the carrot and the stick, you know,
trying to get--and assist companies into having just better
standards of safety is certainly approach of course.
We found in a number of instances that many times there is
noncompliance, and so we have to sort of have the stick
approach.
But I wonder in your opinion, how important are penalties
in the overall enforcement scheme?
Do penalties deter noncompliance, do you believe?
Mr. Frumin. Sorry, thank you, Mr. Payne.
Well, penalties are critical. That is not only a very
important feature of this law. It was written into the laws.
They are mandatory.
First instance penalties, the Congress wasn't kidding when
they made that decision. I am sure it was how they debated it
at the time, Mr. Chairman. It is a very, very important feature
of the law.
But it is true of civil enforcements generally. Where would
EPA be without its penalties? Where would FDA? Where would the
Highway Patrol be?
I mean let us not kid ourselves. Penalties are critical.
This is a country or society that runs in part on money. And
employers know how to count it.
Unfortunately, you know, there are differences of views on
that. And some people don't understand their responsibility to
maintain penalties that are effective deterrents.
And frankly, the penalties that are in the law now, we have
learned, are too little. We continue to see employers large and
small who are simply undeterred at all by the current penalty
and enforcement structure.
And it is necessary to raise those penalties both
administratively as the administration is finally doing, but
also legislatively as this committee has considered for the
last 2 years.
Mr. Payne. Continuing on that trend, are there are studies
which show that OSHA inspections and penalties will lead to a
decrease in the rate of workers' compensation claims?
Mr. Frumin. Sure. We had a recent one. It is part of my
testimony from the Department of Labor and Industry in
Washington that shows a very substantial decrease in workers'
compensation claims comparing OSHA visits with inspections,
with citations versus those without.
And these are very important findings, systematically done.
I was glad to hear Mr. Beauregard describe their analysis. We
have had too few of those analyses. We need to do a lot more of
them.
And I wish Mr. Lewis had been able to describe in greater
detail the new analysis that the Labor Department itself is
doing. This is unprecedented.
We have never seen a department of--U.S. Department of
Labor take so seriously the urgency of evaluating the actual
impact of its enforcement efforts involving tens of thousands
of workplaces over a period of time.
I think it is disingenuous to say that there is no view
about how to establish evaluation criteria that is in effect at
the Labor Department. They are in the midst of a full-scale
redesign of it. It is a public document.
And I think they need to be given credit for that and be
supported, so that in a couple of years when those results are
in, we will finally see the kind of understanding that we need
in order to move forward.
Mr. Payne. Also as you mention, Mr. Beauregard, in his
testimony objects to comparison, we show that states tend to
cite half as many serious violations as compared with federal
OSHA.
Isn't a low rate of serious violations an indicator that
states may be targeting the wrong facilities?
Is it possible that this indicates states are writing down
penalties to the point that they lack the wanted deterrent
factor value?
Mr. Frumin. Well, I can't speak for the states' motivation
in arriving at such a small proportion of serious violations,
but we did see in the federal review in a number of states
where the state inspectors were simply not adequately
classifying serious violations, and the mandatory penalties
that come with them.
There is a sharp disparity between states overall and some
individual states and some individual states, and of course,
federal practice as well, regarding the proportion of serious
violations.
Those are the violations that come with mandated penalties
and it is critical that that be a key performance evaluation
criteria going forward. What everyone thinks of looking at
injury-illness data.
If we are not looking at the basics of--and compliance, you
know, we are missing the point.
Mr. Payne. Thank you. My time has expired.
I would hope that perhaps in the future we could have the
head of OSHA at the hearing--might help to hear what the helm
of the group thinks.
All right, I yield back.
Chairman Walberg. I thank the gentleman.
And will reiterate that we are certainly open to that. And
hope that they could help us with if indeed the concern is that
they need 14 days as opposed to others that can appear in 7
days notice, that we can work that out.
But we do have the information from them. It is part of
record in relationship to the report. And we will certainly
have them in front of us in the future.
I want to thank the witnesses for being here today. I think
you have imparted a great amount of information on the whole
cross spectrum of the issue to us.
Appreciate your time and your attention to the time as
well.
And I express appreciation to my subcommittee members for
their attention to the details here as well, and the questions
that you supplied this morning.
So now I would recognize the ranking member for any closing
remarks that she might have.
Ms. Woolsey. Thank you, Mr. Chairman.
Two thoughts before I make my closing remarks.
One, we have to recognize that regarding Mr. Beauregard's
testimony, and he was absolutely right. The contribution from
the federal government to the states' programs has not kept up
with the rate of inflation, in the last--over 10 years, and
that really cuts into what is going on.
Under President Obama, it increased about 15 percent. And
in the president's budget, he requests more.
So, there is a recognition that we need to do more to
assist the states.
The other thought I had was the Inspector General's report
actually supports what OSHA is doing now. It just came before--
actually your report says, OSHA should be establishing measures
and the impact from the state and with their own department.
And that is what they are doing. So, I think that is good
news for us. In your report, we asked for it and it came out
now.
But it will fulfill itself. And thank you for that.
So, we have learned that effective state plans are
essential in protecting workers' health and safety. But we also
know that the dramatic Republican budget cuts that are being
considered for the Department of Labor/ Health and Human
Services' appropriations bill will absolutely undermine
workers' safety and health in the 27 state plans, as well as
the department in general, including my home state of
California.
And many members of this committee, their states will be
affected.
Mr. Beauregard's testimony states, and I quote--
``Insufficient funding poses the most serious threat to the
overall effectiveness of both state plans and federal OSHA.''
And we agree with you.
The chief of California State OSHA Plan, Ellen Widess, sent
a letter that I entered into the record regarding their
relationship with federal OSHA.
And her letter makes two key points.
``Federal OSHA's standards and enforcement provide a
uniform floor for all OSHA programs.'' I mean, this is from a
state director.
``This ensures uniform protections for workers employed by
multistate employers. It also discourages forum shopping by
employers seeking a competitive advantage at a cost of less
protection for their workers.''
Secondly, she says, OSHA enhanced oversight found
California law impeded the state from issuing enough serious
violations. This resulted in state legislation clarifying the
definition of serious violations, which was supported by both
the labor and the employer community in California.''
The state of Washington OSHA Plan has sent the subcommittee
a letter answering the questions posed by this hearing. Their
letter says, ``OSHA does not undermine states' efforts to
promote worker health and safety.''
Washington OSHA also contends that OSHA's National Emphasis
Programs, which requires states to join federal OSHA in
targeting inspection at high hazard industries such as oil
refineries or metal foundries, is a legitimate exercise of
federal authority.
Mr. Chairman, OSHA was not included in this hearing; we
have said it several times. And I thank you for saying you will
make that effort next time.
We have the summary of the Labor Department's evaluation
initiative covering enforcement and compliance assistance, as
well as OSHA's May 31st, 2011 response to the inspector general
report.
And I would like to ask unanimous consent to add these
three items into the record.
[The information follows:]
Performance Measurement and Management at DOL and Within OSHA
In 2010, the Department published its 5 year strategic
plan. The plan emphasizes outcomes that DOL Agencies are trying to
achieve.
For worker protection agencies such as OSHA, this meant
thinking beyond simply process and outputs, to how the Department will
be able to measure whether it is making a difference in how employers
behave and comply with the laws that the worker protection agencies
enforce.
The outcome measures for most worker protection agencies
is a rate of compliance or a rate of violations in a particular
industry or overall. In many cases, agencies have diverted resources
from targeted investigations to investigations of randomly selected
sites within a particular universe. Sampling and random inspections
allow these agencies to draw conclusions about the larger universe they
seek information on.
Several agencies have also introduced measures of
recidivism.
OSHA has for many years tracked injury/illness and
fatality data since improving the health and safety of workers is the
ultimate long term goal of OSHA regulations. This is good outcome data
because it looks at what is happening to workers. With the strategic
plan they also introduced three new more intermediate outcome measures:
Percent of serious, willful and repeat violations in high
hazard general industry;
Percent of serious, willful and repeat violations in large
construction industry;
Recidivism rate for serious, willful and repeat violations
in high hazard general industry.
The first two examine how employers are behaving and the last
measure gauges how effective our inspections are at keeping employers
in compliance.
In addition, the Department's Chief Evaluation Office is
funding 4 evaluations that look at the impact of certain interventions
and strategies on employer behavior as related to compliance with the
law.
OSHA evaluation on the SST program intended to determine
if there is a different effect on employer compliance when they receive
a high hazard warning letter, versus when they receive both the letter
and an inspection.
OSHA evaluation on the effect of compliance assistance and
consultation visits on rates of injury and illness.
Wage and Hour evaluation on the effect of various types of
remedies on employer behavior--lessons from this evaluation will be
useful for all worker protection agencies.
Wage and Hour evaluation of the effect of enterprise-wide
enforcement versus traditional establishment enforcement on compliance.
Prepared by the U.S. Department of Labor.
______
------
Chairman Walberg. Without objection.
Ms. Woolsey. Thank you. And I yield back, Mr. Chairman.
Chairman Walberg. I thank the gentlelady.
And again, thank you for being part of this hearing today.
A lot has been said, a lot more will be said on this issue.
I think I would start by making it very clear that I and
many others have a concern that we do have financial problems.
We are a nation that is broke--beyond broke.
We have gone two terms without a budget, addressing some of
these issues, and, I think--and clarifying it.
We, at this time in the House, are attempting to change
that by having a budget. And that budget is dealing with the
realities of a fact that we are broke.
And this is not an issue of one side of the aisle or
another. It has gone on for too long, that we have not
established priorities to meet the pressing, important, and
necessary needs of government.
And so that affects all of our budget areas. And certainly
affects the Department of Labor as well.
I think the efforts right now are to make sure we really
push ourselves to decide what is important and what is
necessary. And that will be a difficult process. And mistakes
will be made.
But in the course of hearings like this and others, we will
have the opportunity to hopefully ferret out those things that
are absolutely necessary. And we would do ourselves great harm
in not attending to those details.
Offering flexibility, offering alternatives, pushing the
envelope, suggesting new ways of handling it, those are, I
hope, part of not only this subcommittee's process, but the
Congress as a whole. Priorities are important.
And we have not been attentive to establishing the key
priorities. Instead we have accepted everything as a priority,
so to speak.
Efficiency has to be the requirement. But safety cannot be
the--or loss of safety, be the outcome unnecessarily.
The concept of fine versus fix has to be dealt with. I
think where we can find, where we have examples of promoting as
mentioned already without huge fines, with the focus being
given on fixing it. And finding those ways, and accessing those
ways from other experiences to promote those things.
We are seeing that state OSHA in many cases has come of
age. And the credibility with flexibility can be very helpful
there.
I think it is a true statement that some work, many
situations of work, but some work is necessarily dangerous. It
is necessarily dangerous. Whether it was when I worked at steel
mills, and there was necessary danger in carrying out my job.
However on the other side of the ledger, no work should be
unnecessarily dangerous. And I guess that is the creative
tension we have here, of trying to make sure that while we have
dangerous situations of work and that danger is necessary,
because the job has to be done, and it can't be done without
some element of danger. Let us make sure that we have in place
the ability to say that it is not unnecessarily dangerous.
And that we can afford those things in a way that we can
continue to encourage jobs and the growth in the economy that
expands the opportunity. But we can also encourage the safety
factor as well.
So having said that, that will be our agenda. We will
continue to work for that.
We hope that all that desire to be at this table will come
to the table and make all good effort to be here.
And again, I say thank you for participating today.
No further business coming before this committee, the
committee stands adjourned.
[Additional submission of Chairman Walberg follows:]
------
[Additional submissions of Ms. Woolsey follow:]
FEDERAL TO STATE 100% MATCH AWARDS--FY 2009-2011
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2009 Fed FY 2009 State FY 2009 State FY 2010 Fed FY 2010 State FY 2010 State FY 2011* Fed FY 2011* State FY 2011* State
State Award Match 100% Award Match 100% Award Match 100%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
ALASKA.......................................... $1,393,500 $2,090,512 $697,012 $1,429,400 $2,229,072 $799,672 $1,429,400 $2,088,496 $659,096
ARIZONA......................................... $1,813,000 $1,814,251 $1,251 $1,813,000 $2,214,670 $401,670 $1,813,000 $2,129,093 $316,093
CALIFORNIA...................................... $23,013,900 $41,588,600 $18,574,700 $27,418,800 $39,501,000 $12,082,200 $27,418,800 $46,513,000 $19,094,200
CONNECTICUT..................................... $614,000 $1,763,383 $1,149,383 $650,400 $1,636,449 $986,049 $650,400 $1,531,469 $881,069
HAWAII.......................................... $1,686,400 $1,686,400 $0 $1,538,000 $1,538,000 $0 $1,445,400 $1,445,400 $0
ILLINOIS........................................ $1,500,000 $1,500,000 $0 $1,500,000 $1,500,000 $0 $1,584,500 $1,584,500 $0
INDIANA......................................... $2,188,000 $2,188,000 $0 $2,188,000 $2,188,000 $0 $2,188,000 $2,188,000 $0
IOWA............................................ $1,608,900 $2,890,350 $1,281,450 $2,066,500 $2,327,574 $261,074 $2,066,500 $2,256,279 $189,779
KENTUCKY........................................ $3,308,600 $5,810,600 $2,502,000 $3,505,100 $6,128,300 $2,623,200 $3,505,100 $5,968,400 $2,463,300
MARYLAND........................................ $3,916,600 $4,611,106 $694,506 $4,130,800 $4,560,756 $429,956 $4,130,800 $4,774,956 $644,156
MICHIGAN........................................ $9,893,100 $11,138,500 $1,245,400 $10,291,600 $11,387,000 $1,095,400 $10,291,600 $12,528,700 $2,237,100
MINNESOTA....................................... $3,900,300 $4,805,084 $904,784 $4,123,300 $4,923,054 $799,754 $4,123,300 $4,936,981 $813,681
NEVADA.......................................... $1,132,400 $5,597,207 $4,464,807 $1,505,900 $5,067,950 $3,562,050 $1,505,900 $4,955,903 $3,450,003
NEW JERSEY...................................... $1,895,800 $3,272,479 $1,376,679 $1,984,700 $2,382,452 $397,752 $1,984,700 $2,758,208 $773,508
NEW MEXICO...................................... $828,000 $1,085,530 $257,530 $1,027,300 $1,027,300 $0 $1,027,300 $1,027,300 $0
NEW YORK........................................ $3,163,000 $4,257,000 $1,094,000 $3,827,300 $5,078,000 $1,250,700 $3,827,300 $5,078,000 $1,250,700
NORTH CAROLINA.................................. $5,180,700 $11,952,262 $6,771,562 $5,501,500 $12,354,071 $6,852,571 $5,501,500 $12,354,071 $6,852,571
OREGON.......................................... $5,105,700 $16,015,071 $10,909,371 $5,292,800 $15,780,509 $10,487,709 $5,292,800 $17,477,690 $12,184,890
PUERTO RICO..................................... $2,438,800 $7,854,000 $5,415,200 $2,588,900 $5,641,069 $3,052,169 $2,588,900 $5,180,743 $2,591,843
SOUTH CAROLINA.................................. $1,734,200 $1,734,200 $0 $1,734,200 $1,734,200 $0 $1,734,200 $1,734,200 $0
TENNESSEE....................................... $3,278,900 $4,999,981 $1,721,081 $3,977,100 $4,206,521 $229,421 $3,977,100 $4,206,523 $229,423
UTAH............................................ $1,300,200 $1,485,606 $185,406 $1,464,200 $1,464,200 $0 $1,579,200 $1,579,200 $0
VERMONT......................................... $725,800 $725,800 $0 $725,800 $725,800 $0 $725,800 $725,800 $0
VIRGIN ISLANDS.................................. $201,000 $464,662 $463,662 $202,100 $465,238 $463,138 $202,100 $468,288 $466,188
VIRGINIA........................................ $3,319,800 $3,319,800 $0 $3,319,800 $3,319,800 $0 $3,319,800 $3,319,800 $0
WASHINGTON...................................... $6,901,600 $38,735,838 $31,834,238 $7,249,900 $32,780,939 $25,531,039 $7,249,900 $35,113,670 $27,863,770
WYOMING......................................... $520,000 $784,598 $264,598 $548,700 $812,843 $264,143 $548,700 $884,808 $336,108
-----------------------------------------------------------------------------------------------------------------------------------------------
Total Awards.............................. $92,562,200 $184,170,820 $91,808,620 $101,605,100 $172,974,767 $71,569,667 $101,712,000 $184,809,478 $83,297,478
Funds for One-Time Only Distribution Reduction $30,800 .............. .............. $2,787,900 .............. .............. $2,681,000 .............. ..............
---------------- ---------------- ----------------
Total Appropriation....................... $92,593,000 .............. .............. $104,393,000 .............. .............. $104,393,000 .............. ..............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NOTES: * Initial Awards. Source: OSHA.
1. The Federal Award column consists of the base award and mandatories for that fiscal year. This column does not include any one-time only funds, deobligated funds or lapsed funds
transactions.
2. The State share column consists of a dollar for dollar match of the final base award and 100% State funds for federal or state safety and health enforcement. These figures do not include
one-time only awards.
3. Effective July 1, 2003, the required match for Virgin Islands is waived up to $200,000 in accordance with section 501(d) of Public Law 95-134, The Omnibus Insular Areas Act of 1977 (48 USC
1469(d)).
------
Post Hearing Comments of David Michaels, Ph.D., MPH, Assistant
Secretary, Occupational Safety and Health Administration, U.S.
Department of Labor
Thank you for this opportunity to submit a statement to the record
for the June 16 hearing, ``Is OSHA Undermining State Efforts to Promote
Workplace Safety?''
We were pleased to learn that all of the witnesses who testified
agreed that OSHA was clearly not ``undermining'' state efforts to
promote workplace safety. The two main witnesses on State Plans, Mr.
Kevin Beauregard and Mr. Eric Frumin, both agreed that the factor that
would contribute most to undermining the effectiveness of State Plans
would be drastic cuts to the federal contribution to the State Plans'
budgets.
Section 18 of the Occupational Safety and Health Act of 1970 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 approval for their State
Plans--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, State Plans deliver the OSHA program to 40% of
the nation's private sector workplaces, with federal OSHA responsible
for the other 60%.
Section 18(c) of the Act requires OSHA to ensure that all aspects
of the states' programs, but particularly their standards and
enforcement programs, including the conduct of inspections, are at
least as effective as OSHA's program, and that the State Plans have
sufficient funding and qualified enforcement personnel to operate.
Section 18(f) requires states to submit reports to federal OSHA, and
federal OSHA is required to use those reports, as well as inspections
of the State Plans, to determine whether states are effectively
carrying out their plans.
This oversight is essential to ensuring a consistent level of
protection of the health and safety of workers throughout the United
States, as Congress intended. States still have the flexibility to go
beyond the floor that federal OSHA sets, as CalOSHA Chief Ellen Widess
noted in a recent letter to Representative Lynn Woolsey.
As OSHA's 2009 Special Report on Nevada and subsequent FY 2009
Enhanced Federal Annual Monitoring and Evaluation (EFAME) reports on
the other State Plans showed, federal OSHA needed to improve its
procedures for conducting the oversight required by the Act. OSHA has
recently made great progress in improving oversight of and
communications with State Plans, including improved state plan
participation in developing National Emphasis Programs and the
extensive overhaul of how OSHA monitors state plans, communicates those
findings, and follows up on implementation of corrective action plans.
The heads of Washington and California OSHA programs have both
confirmed the benefits of federal assistance and oversight in letters
to Ranking Member Woolsey.
We believe that this Federal/State Plan arrangement has been
successful, with many states developing standards and enforcement
methods that go beyond OSHA's standards and policies.
The Inspector General Report
The Inspector General's report, ``OSHA Has Not Determined if State
OSH Programs Are at Least as Effective in Improving Workplace Safety
and Health As Federal OSHA' s Programs'' criticized OSHA for using
activity measures instead of outcome or impact measures to determine
the effectiveness of State Plans. While OSHA agreed in general with the
need for better measures, we noted that attempting to determine the
effectiveness of State Plans by relying exclusively on a system of
impact or outcome measures is not only extremely problematic, but would
not fulfill the more specific and extensive requirements of the
Occupational Safety and Health Act of 1970.
Ideally, OSHA would use outcome measures in conjunction with other
measures to evaluate effectiveness. Developing such outcome measures
has been recognized by the Inspector General and other experts in this
area as highly difficult. While it is clear that the development and
enforcement of standards, as well as compliance assistance, has
contributed significantly to the drop in injuries, illnesses and
fatalities over the last 40 years, it is difficult to determine the
extent to which inspections, penalties or compliance assistance
contributed to this reduction. Other factors such as changes in
industry mix, the composition of the working population, and difficulty
in accurately measuring certain outcomes all make the development of
useful outcome measures extremely difficult.
Despite these difficulties, OSHA is currently engaged in an
unprecedented effort to evaluate the impact of its activities and
develop outcome measures that could help measure the effectiveness of
OSHA's enforcement program and other related efforts. For example,
several studies are underway to look at the impact of penalties on
compliance, letters related to OSHA's Site Specific Targeting Program,
consultation activities and the benefits of enterprise-wide
settlements. The results of these and other studies (which should be
available in several years) will provide important guidance for the
Department of Labor's enforcement agencies and State Plan partners.
In addition, as OSHA awaits the results of those longer-term
studies, OSHA is implementing several outcome measures in a more
expeditious manner. For example, in the most recent strategic plan,
OSHA has introduced three new more intermediate outcome measures:
Percent of serious, willful and repeat violations in high
hazard general industry;
Percent of serious, willful and repeat violations in large
construction industry;
Recidivism rate for serious, willful and repeat violations
in high hazard general industry.
Finally, OSHA and the State Plans have launched a joint effort to
determine what activity and outcome measures will best enable federal
OSHA to determine the effective operation of State Plan programs. This
effort, in addition to improved communication concerning National
Emphasis Programs and other federal OSHA activities, is expected to
significantly improve federal OSHA oversight over state plan activities
and effectiveness as we move forward together to accomplish our joint
mission of ensuring the safety and health of American workers.
OSHA reviews an enormous amount of data on State Plans and our own
program to gauge effectiveness. Because states participate in OSHA's
data system, the same data is available on the State Plans as on the
federal OSHA program, thus allowing direct and consistent comparisons.
On the federal level, OSHA evaluates its enforcement program using a
variety of statistics, including compliance rates, programmed
inspections and fatalities resulting from certain factors. State Plans
are evaluated on activity-based data, including inspection counts,
violations characteristics, penalty amounts, injury and fatality rate
trends, Integrated Management Information System (IMIS) and
recordkeeping, measures for timeliness and completion of inspections,
violation classification, staffing benchmarks, and timely adoption of
standards. Monitoring these measures, combined with increased on-site
evaluation of State Plan activities, evaluation of case files, faster
follow-up of Complaints Against State Programs, and improved tracking
of inspector training helps OSHA determine overall effectiveness. As
noted above, as outcome measures are developed, OSHA's oversight of
State Plan activities will improve.
Thank you for this opportunity to submit these comments.
______
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[Additional submissions of Mr. Beauregard follow:]
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FY 2010 INSPECTION ACTIVITY
------------------------------------------------------------------------
State plans Federal OSHA
------------------------------------------------------------------------
Total Inspections....................... 57,124 40,993
Safety................................ 45,023 34,337
Health................................ 12,101 6,656
Employees Covered by Inspection....... 2,361,456 1,423,528
Programmed............................ 35,085 24,759
Unprogrammed.......................... 22,039 16,220
Accident.............................. 2,967 830
Complaint............................. 8,986 8,027
Follow-up............................. 2,641 1,096
Other unprogrammed.................... 7,445 6,267
Construction.......................... 22,993 24,430
Maritime.............................. 34 302
Manufacturing......................... 9,462 7,917
Other Industry........................ 24,635 8,344
===============================
Total Violations........................ 120,417 96,742
Serious............................... 52,593 74,885
Other-than-serious.................... 65,031 17,244
Willful............................... 278 1,519
Repeat................................ 2,054 2,758
Failure-to-abate...................... 460 334
Average Current Penalty per Serious $871 $1,053
Violation............................
===============================
Total Current Penalties................. $72,233,480 $183,594,060
------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, FY 2010.
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Occupational Safety & Health State Plan Association
Press Release, September 28, 2010
The Occupational Safety and Health State Plan Association (OSHSPA),
made up of 27 States and Territories that administer their own OSHA
programs and work as partners with OSHA to ensure safe and healthful
workplaces across the nation, fully supports regular auditing and
monitoring of State-administered occupational safety and health
programs. It is the organization's belief that appropriate auditing and
monitoring can be a valuable tool to enhance program effectiveness and
to support continuous program improvement. OSHSPA also believes that it
is critical for the methodology that is used by OSHA to measure
programs be consistent across the nation and to continue to allow the
States to operate in a way that is at least as effective as OSHA. The
State Plans do not, and should not, operate in a manner identical to
OSHA. Rather, they serve as laboratories for moving occupational safety
and health issues forward and fuel creative approaches to ensure the
occupational safety and health of workers.
OSHA has recently engaged in a process where enhanced federal
monitoring of programs was conducted and has issued State-specific 2009
Enhanced Federal Annual Monitoring and Evaluation (EFAME) Reports of
State Plan OSHA programs. The reports contain a number of
recommendations that may be useful to State Plan OSHA programs.
However, OSHSPA believes that the scope, methodology, and evaluation
criteria used by each of the ten federal OSHA regional offices were
inconsistent and in some cases the report findings are misleading.
Despite a last minute attempt to standardize the format of the reports,
documentation and content still vary considerably. For several states,
the executive summaries do not appear to clearly represent the audit
findings contained in the associated report, nor do they clearly
indicate positive aspects of the State Plan programs. Finally, although
required by the guidelines established by the OSHA national office,
some reports do not include a determination on whether a State
continues to meet its State Plan requirements.
A well-designed audit containing pertinent and valid criteria,
administered consistently by a well-trained staff, and focused on
outcomes rather than process, is critical if the end results are to be
consistent and meaningful. Appropriate fact-based criteria must be
established to measure quality and performance against valid
established benchmarks. OSHSPA is concerned that some of the audits
seem to place too much emphasis on OSHA's determination regarding
whether or not specific state policies and procedures are identical to
federal OSHA's. This ``identical procedure'' approach is in conflict
with the provisions of the OSH Act that specifically allow for State
Plan administration of an OSHA program utilizing alternative policies
and procedures, as long as the State's standards and overall
enforcement of those standards are at least as effective as federal
OSHA's.
Each State Plan program will respond to OSHA individually regarding
its specific audit. Overall effectiveness of State and federal OSHA
programs is paramount in ensuring that all workers nationwide have a
safe and healthful workplace. OSHSPA members would welcome the
opportunity to work with OSHA in developing effective measures and an
effective auditing system that will better ensure that State Plans and
federal OSHA are equally accountable to the American workers and
general public, in regards to overall program effectiveness.
______
Occupational Safety & Health State Plan Association,
Washington, DC, May 13, 2011.
David Michaels, PhD, MPH,
Assistant Secretary for Occupational Safety and Health, U.S. Department
of Labor, 200 Constitution Ave, NW #2315, Suite 800,
Washington, DC 20210-0001.
Subject: Legal Basis of Requirement for Mandatory State Plan Adoption
of National Emphasis Programs
Dear Assistant Secretary Michaels: Thank you for your detailed
letter of October 12, 2010, responding to the Occupational Safety and
Health State Plan Association's (OSHSPA) letter on the above subject of
July 6, 2010.
First, I wanted to express the appreciation of the OSHSPA Board of
Directors and OSHSPA's membership as a whole for the discussions
initiated on the broad issue of ``as effective as'' criteria for State
Plans at the OSHSPA Board/Federal Steering Committee meeting in Chicago
last month. The recent Office of Inspector General (OIG) report,
entitled ``OSHA Has Not Determined if State OSH Programs Are At Least
As Effective in Improving Workplace Safety and Health as Federal OSHA's
Programs'', serves as a very timely and appropriate starting point for
discussions of this issue, which lies at the core of State Plan
monitoring and evaluation.
National Emphasis Programs (NEP)
OSHSPA fully supports OSHA's efforts to develop and use NEPs to
address workplace hazards that pose a real and significant threat to
employee and employer safety and health in federal and state
jurisdictions. Many State Plans have benefitted over the years from
OSHA's identification and development of NEPs to address existing or
emerging hazards that threaten the lives of America's working men and
women. As stated in previous communications with your office, OSHSPA is
more than willing to work with OSHA on the identification and
development of NEPs and to encourage our membership to participate.
However, for the reasons stated below, OSHSPA does not believe that
OSHA has the legal authority nor is correct from a policymaking
standpoint to require State Plans to adopt NEPs to maintain their ``as
effective as'' status.
The OSH Act is clear that State Plans must:
adopt standards that are at least as effective as those of
OSHA; and
must meet other basic requirements such as adequate
personnel, adequate funding, right of entry, and coverage of public
sector employees.
As you noted in your letter, OSHA regulations for State Plans
further provide that whenever a ``significant change in the federal
program would have an adverse effect on the `at least as effective as'
status of the State if a parallel State change were not made,'' a State
Plan change ``shall be required.''
You have interpreted the above provision as requiring mandatory
State adoption of NEPs ``when a pattern of serious injuries or
incidents emerges that demonstrates a widespread hazard demanding
attention by the nation's employers.'' You further mandate that ``A
State may adopt the Federal program, or it may adopt an equivalent
State program, if it can document how the State program is `at least as
effective,' 29 CFR Sec. 1954.3(b)(4). In the latter case, it is
essential that the States address all key components of the NEP in an
``at least as effective'' manner'' (e.g., conduct a specified number of
enforcement inspections within a set time frame).
OSHSPA's first comment on OSHA's position with regard to NEPs is
that it seriously questions how any State's program could be
``adversely effected'' if it chooses not to adopt an NEP which only
requires a State plan or a federal Area Office to conduct five or fewer
inspections in a given industry per year--a frequent occurrence in
NEPs. In a State Plan that conducts 3,000 inspections per year, your
argument suggests that if the State fails to conduct 5 inspections, or
16/100ths percent of the total, the State Plan will somehow not be ``as
effective as'' the federal program. In practical terms, OSHSPA finds
OSHA's position unsupportable. In legal terms, OSHSPA finds OSHA's
position contrary to the OSH Act.
The OSH Act of 1970 provides in Sec. 2(b)(11):
``(b) The Congress declares it to be its purpose and policy *
* * to provide for the general welfare, to assure so far as
possible every working man and woman in the Nation safe and
healthful working conditions and preserve our human resources--
(11) by encouraging States to assume the fullest
responsibility for the administration and enforcement
of their occupational safety and health laws by
providing grants to the States to assist in identifying
their needs and responsibilities in the area of
occupational safety and health, to develop plans in
accordance with the provisions of this Act, to improve
the administration and enforcement of State
occupational safety and health laws, and to conduct
experimental and demonstration projects in connection
therewith. * * *'' (Emphasis added).
As the OSH Act indicates, State Plans are charged by Congress to
identify ``their needs and responsibilities in the area of occupational
safety and health.'' OSHA's position that a State Plan must conduct
five inspections in a given industry per year constitutes federal
micro-management of State resources and runs directly contrary to
Congress's stated intent for the States to identity their own needs and
responsibilities for assuring ``safe and healthful working conditions''
in their State.
OSHSPA's second comment with regard to OSHA's position that
``States address all key components of the NEP in an ``at least as
effective'' manner'' is that OSHA's position is not supported by its
own stated basis for the development of NEPs. For instance, if OSHA
uses national data on injuries and incidents to support the development
of the NEP, as your letter suggests, but a State has a level of
injuries and illnesses in the industry that demonstrates there is no
widespread hazard in the State, your position would still suggest that
the State would have to conduct the NEP inspections anyway or risk
being found to be not ``as effective as'' the federal program. OSHSPA
finds OSHA's position that a State Plan should use its limited
resources to address a hazard that may be a problem elsewhere in the
nation, but is not one in a particular State, to be unsupportable.
OSHA would also presumably take the position that if a State Plan
chose to approach the particular hazard addressed by the NEP through
Cooperative Programs first, the State Plan would still have to conduct
enforcement inspections, even if the cooperative approach proved
successful in the State. OSHSPA finds OSHA's position in this scenario
to be unsupportable as well, and contrary to Congress's stated intent
that State Plans ``conduct experimental and demonstration projects'' to
address workplace hazards that impact the safe and healthful working
conditions of employees and employers.
OSHSPA's third comment is that OSHA's current position on NEPs runs
contrary to and is inconsistent with its own position on determinations
of ``as effective as'' with regard to State Plans. As part of quarterly
and annual monitoring of State Plans, OSHA regularly evaluates the
``effectiveness'' of State Plan inspection targeting systems by
reviewing: in-compliance rates, not-in-compliance rates, percent
serious rates, percent of programmed inspections with serious/willful/
repeat violations and violations per inspection. State Plans that have
inspections statistics that significantly differ from federal OSHA in
any of these areas are currently subject to receiving recommendations
and corrective action plans. This has been highlighted in the two most
recent Federal Annual Monitoring and Evaluation (FAME) reports issued
by OSHA. OSHSPA can provide countless examples of State Plan annual
evaluation reports where OSHA monitoring personnel have used such
indicators as high in-compliance rates and low percent serious
violation rates in planned inspections to conclude that a State's
targeting system was inadequate or not ``as effective as'' OSHA's
targeting system.
NEP inspections are one part of a State Program's planned
inspection targeting scheduling system and by making all NEPs
mandatory, OSHA would be requiring every State Plan to focus
enforcement activities in the areas covered by the NEPs. Based on your
letter, OSHA would presumably take the position that a State Plan would
still have to conduct planned enforcement inspections under the NEP,
even if the State could demonstrate that previous enforcement and
consultation inspections in the particular industry or emphasis area in
their State resulted in high in-compliance rates and/or a low percent
serious rate. Additionally, OSHA's current position on NEPs would not
take into consideration state injury and illness rates pertaining to a
particular industry or operation even if they were below the national
average. OSHSPA finds OSHA's position that a State Plan should use its
limited resources to address a hazard that may admittedly be a problem
elsewhere in the nation, but is not one in each State Plan, to be
unsupportable.
OSHSPA's final comment is that OSHA's current position on NEPs
could constitute an unfunded mandate to State Plans. OSHA's recent
implementation of the NEP on Recordkeeping was the latest example of a
resource impact for State Plans resulting from participation in an OSHA
enforcement initiative that OSHA had determined was of such widespread
significance and importance that all federal and State Plan Programs
should be strongly encouraged to participate. That particular NEP was
developed by OSHA without any State Plan participation early enough in
the development process to identify any negative resource impacts on
State Plan programs in time to address them up front. Additionally,
OSHA received an appropriation of approximately one million dollars in
FY2009 and FY2010 from Congress to implement its Recordkeeping
initiative, but provided no such funding to the 27 State Plans. As you
know, inspections under the Recordkeeping NEP can last hundreds or even
thousands of hours, which takes away from other planned enforcement
inspection activities. When such funding is not provided to State
Plans, the initiative becomes an unfunded mandate for States, which are
already significantly underfunded as it is.
Based on the above, it is OSHSPA's position that OSHA does not have
the legal authority nor is correct from a policymaking standpoint to
require State Plans to adopt NEPs.
On behalf of OSHSPA, I respectfully request that OSHA withdraw its
requirement for mandatory State Plan adoptions of NEPs.
Sincerely,
Kevin Beauregard, Chair,
Occupational Safety and Health State Plan Association.
______
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[Questions submitted for the record and their responses
follow:]
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[Whereupon, at 11:27 a.m., the subcommittee was adjourned.]