[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

                      WORKFORCE SAFETY: ENSURING A




                               before the


                         COMMITTEE ON EDUCATION

                           AND THE WORKFORCE

                     U.S. House of Representatives

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION




                           Serial No. 112-42


  Printed for the use of the Committee on Education and the Workforce

                   Available via the World Wide Web:

            Committee address: http://edworkforce.house.gov

68-533                    WASHINGTON : 2012
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                    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          Rush D. Holt, New Jersey
Richard L. Hanna, New York           Susan A. Davis, California
Todd Rokita, Indiana                 Raul M. Grijalva, Arizona
Larry Bucshon, Indiana               Timothy H. Bishop, New York
Trey Gowdy, South Carolina           David Loebsack, Iowa
Lou Barletta, Pennsylvania           Mazie K. Hirono, Hawaii
Kristi L. Noem, South Dakota         Jason Altmire, Pennsylvania
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania

                      Barrett Karr, Staff Director
                 Jody Calemine, Minority Staff Director


                    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


Hearing held on October 5, 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....................................     7

Statement of Witnesses:
    Korellis, Pete, president, Korellis Roofing, Hammond, IN, on 
      behalf of the National Roofing Contractors Association.....    71
        Prepared statement of....................................    72
    Michaels, David, Ph.D., MPH, Assistant Secretary, 
      Occupational Safety and Health Administration, U.S. 
      Department of Labor........................................    39
        Prepared statement of....................................    41
    Sarvadi, David G., partner, Keller and Heckman LLP...........    88
        Prepared statement of....................................    90
    Seminario, Peg, director, safety and health, AFL-CIO.........    79
        Prepared statement of....................................    80

Additional Submissions:
    Bishop, Hon. Timothy H., a Representative in Congress from 
      the State of New York:
        New York Times article, dated October 4, 2011, 
          ``Misrepresentations, Regulations and Jobs,'' by Bruce 
          Bartlett...............................................    58
    Mr. Korellis:
        Letter, dated October 25, 2011, from William A. Good, 
          National Roofing Contractors Association, to Chairman 
          Walberg................................................    21
    Chairman Walberg:
        Prepared statement of the National Association of Home 
          Builders (NAHB)........................................    17
        Letter, dated October 5, 2011, from Associated Builders 
          and Contractors........................................   108
        Letter, dated October 5, 2011, from the Sikh Coalition...   109
    Ms. Woolsey:
        Letter, dated April 11, 2008, from NAHB to OSHA..........    10
        Letter, dated September 14, 2011, from NAHB to the White 
          House..................................................    16
        Letter, dated September 15, 2011, from the Building and 
          Construction Trades Department, AFL-CIO, to Assistant 
          Secretary Michaels, OSHA...............................    35
        Letter, dated October 17, 2011, to Chairman Walberg......    37
        Letter, dated October 14, 2011, from the American Cancer 
          Society Cancer Action Network..........................    37
        Slide, ``Percentage of Fall Fatalities in Construction''.    38
        Photo, roofing ``slide guard''...........................    39
        Letter, dated April 25, 2011, from OSHA to Hon. Reid J. 
          Ribble, a Representative in Congress from the State of 
          Wisconsin..............................................    98
        Table, ``Fall Fatalities,'' U.S. Bureau of Labor 
          Statistics.............................................   103
        Prepared statement of Diane Lillicrap....................   107
        Report, dated April 6, 2011, ``Analysis of an Estimate of 
          the Total Costs of Federal Regulations,'' Congressional 
          Research Service.......................................   113



                       Wednesday, October 5, 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 10:03 a.m., in 
room 2261, Rayburn House Office Building, Hon. Tim Walberg 
[chairman of the subcommittee] presiding.
    Present: Representatives Walberg, Kline, Goodlatte, Rokita, 
Bucshon, Woolsey, Payne, Kucinich, and Bishop.
    Also Present: Representative Ribble.
    Staff Present: Jennifer Allen, Press Secretary; Katherine 
Bathgate, Press Assistant/New Media Coordinator; Casey Buboltz, 
Coalitions and Member Services Coordinator; Ed Gilroy, Director 
of Workforce Policy; Barrett Karr, Staff Director; Ryan 
Kearney, Legislative Assistant; Donald McIntosh, Professional 
Staff Member; 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, Senior Policy Advisor; 
Aaron Albright, Minority Communications Director for Labor; 
Kate Ahlgren, Minority Investigative Counsel; Daniel Brown, 
Minority Junior Legislative Assistant; Jody Calemine, Minority 
Staff Director; John D'Elia, Minority Staff Assistant; Liz 
Hollis, Minority Special Assistant to Staff Director; Brian 
Levin, Minority New Media Press Assistant; Richard Miller, 
Minority Senior Labor Policy Advisor; Michele Varnhagen, 
Minority Chief Policy Advisor/Labor Policy Director; and 
Michael Zola, Minority Senior Counsel
    Chairman Walberg. A quorum being present, the subcommittee 
will come to order. This is our brand new refurbished hearing 
room. So any glitches that may come, I am not responsible for.
    Chairman Kline. Don't look at me.
    Ms. Woolsey. I suppose I am.
    Chairman Walberg. No, no. Not even my ranking member would 
I lay that upon. I am not sure who I would lay it upon. But 
just forewarned is forearmed.
    Good morning. I would like to welcome our guests, and 
express my appreciation to the witness, and the witnesses to 
come, for being with us today. Assistant Secretary Michaels, it 
is good to see you, and thank you for joining us. And I 
appreciate your offer to join anytime we ask. We won't wear 
that out. We have a great deal to discuss in a short amount of 
time. And as a result of that, it may even become a little 
disjointed, but we want to use the time as appropriately as 
    The policies and programs of the Occupational Safety and 
Health Administration touch upon virtually every private 
workplace across the country. That is a tremendous 
responsibility, not only for those of us in Congress who write 
the law, but for the agency officials charged with enforcing it 
in an economy as dynamic and as challenging as ours. The issues 
that come before your Agency are understandably complex. As 
great a challenge workplace safety is for an Agency staffed 
with sharp policy minds, imagine how much greater it is for an 
employer who lacks the resources needed to fully grasp the 
complexities of Federal safety standards, or the time, in some 
cases, to deal with them.
    No one in this room questions the valuable role of OSHA and 
the role that it can play in promoting a safe work environment, 
doubts the need for strong safety and health protections, or 
believes bad actors should not be held accountable for 
jeopardizing the well-being of their employees. We all share 
the same goal. However, as with any difficult issue, and issues 
of great importance, there is often a difference of opinion in 
how we meet the goals.
    It was clear from the early days of the administration a, 
quote, new sheriff was in town, who intended to take a much 
more punitive approach to workplace safety, and who threatened 
to publicly shame workers. It was tough rhetoric that made good 
press. But unfortunately, many of us remain concerned whether 
it is the best approach to worker safety.
    That is why Republicans on this committee have established 
a strong oversight agenda which includes raising legitimate 
concerns, asking tough questions, demanding responsible 
answers, and holding hearings to learn from the men and women 
whose lives are directly impacted by OSHA policies.
    Today's hearing is an important part of our efforts. In 
July, the Department of Labor released its semiannual 
regulatory agenda that includes a number of OSHA items. Many of 
the regulatory proposals are identified as economically 
significant, meaning they will cost $100 million or more for 
businesses to implement. Aside from the significant scope and 
cost of the administration's regulatory ambitions, there are 
additional concerns with specific proposals. The 
administration's injury and illness prevention program, 
commonly known as I2P2, is an unfinished rule that may require 
employers to write comprehensive safety and health plans. This 
plan would be in addition to the countless pages of existing 
rules and paperwork facing employers. We don't know what the 
plan will look like, but we can expect the details to be 
dictated uniformly by OSHA officials, regardless of the 
circumstances of individual businesses. This proposal has 
generated a great deal of uncertainty among employers, 
something our economy cannot afford.
    This committee has also expressed concerns about proposed 
changes to the silica standard. When this initiative began 
almost 10 years ago, small business representatives raised 
alarms about the costs, urging the administration to rely 
instead on greater compliance and strengthened enforcement. In 
a difficult economy, the administration is resurrecting this 
flawed proposal, and most of the details are yet unknown.
    Two months ago, we requested the administration bring its 
proposal out into the open and encourage public feedback. 
Today, we are still waiting for the response.
    For the sake of time, I will limit our concerns to these 
two examples. However, the underlying fear is the uncertainty 
surrounding much of the administration's regulatory actions. As 
I noted earlier, these are difficult issues to address, and 
they take time to get right. But we must not ignore the 
employers who are sitting on the sidelines, questioning the 
future costs of doing business, reluctant to hire new workers, 
jobs, in an economy that needs a workforce working.
    Are there some who cut corners and place workers in harm's 
way? Absolutely. But most employers want to do the right thing. 
Most employers want to safeguard the health and well-being of 
their workers, while providing a livelihood for their families. 
They know more intimately the hazards and risks associated with 
their businesses, and they should be our partners in safety.
    In closing, Dr. Michaels, let me express my commitment to 
working with you. We have our differences, I am certain, but we 
share, I am certain, the same goal. I have noted on a number of 
occasions that the cause of worker safety is best achieved when 
we work together. My Republican colleagues and I are eager to 
find common ground with you on policies that will protect 
workers and foster economic growth and opportunity and a 
workplace that is working.
    [The statement of Chairman Walberg follows:]

           Prepared Statement of Hon. Tim Walberg, Chairman,
                 Subcommittee on Workforce Protections

    Good morning. I would like to welcome our guests and express my 
appreciation to the witnesses for being with us today. Assistant 
Secretary Michaels, it is good to see you and thank you for joining us. 
We have a great deal to discuss in a short amount of time.
    The policies and programs of the Occupational Safety and Health 
Administration touch upon virtually every private workplace across the 
country. That is a tremendous responsibility, not only for those of us 
in Congress who write the law, but for the agency officials charged 
with enforcing it. In an economy as dynamic as ours, the issues that 
come before your agency are understandably complex.
    As great a challenge workplace safety is for an agency staffed with 
sharp policy minds, imagine how much greater it is for an employer who 
lacks the resources needed to fully grasp the complexities of federal 
safety standards. No one in this room questions the valuable role OSHA 
can play in promoting a safe work environment, doubts the need for 
strong health and safety protections, or believes bad actors should not 
be held accountable for jeopardizing the well-being of their employees.
    We all share the same goal; however, as with any difficult issue of 
great importance, there is often a difference of opinion in how we meet 
that goal. It was clear from the early days of the administration a 
``new sheriff was in town'' who intended to take a much more punitive 
approach to workplace safety, and who threatened to publicly shame 
employers. It was tough rhetoric that made good press, but 
unfortunately many of us remain concerned whether it is the best 
approach to worker safety.
    That is why Republicans on this committee have established a strong 
oversight agenda, which includes raising legitimate concerns, asking 
tough questions, demanding responsible answers, and holding hearings to 
learn from the men and women whose lives are directly impacted by 
OSHA's policies.
    Today's hearing is an important part of our efforts. In July, the 
Department of Labor released its semiannual regulatory agenda that 
includes a number of OSHA items. Many of the regulatory proposals are 
identified as ``economically significant,'' meaning they will cost $100 
million or more for businesses to implement. Aside from the significant 
scope and cost of the administration's regulatory ambitions, there are 
additional concerns with specific proposals.
    The administration's injury and illness prevention program, 
commonly referred to as I2P2, is an unfinished rule that may require 
employers to write comprehensive safety and health plans. This plan 
would be in addition to the countless pages of existing rules and 
paperwork facing employers. We don't know what the plan will look like, 
but we can expect the details to be dictated uniformly by OSHA 
officials, regardless of the circumstances of individual businesses.
    This proposal has generated a great deal of uncertainty among 
employers, something our economy cannot afford.
    This committee has also expressed concerns about a proposed change 
to the silica standard. When this initiative began almost 10 years ago, 
small business representatives raised alarms about the costs, urging 
the administration to rely instead on greater compliance and 
strengthened enforcement. In a difficult economy, the administration is 
resurrecting this flawed proposal, and most of the details are yet 
unknown. Two months ago, we requested the administration bring its 
proposal out into the open and encourage public feedback. Today, we are 
still waiting for a response.
    For the sake of time, I will limit our concerns to these two 
examples. However, the underlying fear is the uncertainty surrounding 
much of the administration's regulatory actions. As I noted earlier, 
these are difficult issues to address and they take time to get right. 
But we must not ignore the employers who are sitting on the sidelines, 
questioning the future cost of doing business, reluctant to hire new 
    Are there some who cut corners and place workers in harm's way? 
Absolutely, but most employers want to do the right thing. Most 
employers want to safeguard the health and well-being of their workers 
while providing a livelihood for their families. They know more 
intimately the hazards and risks associated with their businesses, and 
they should be our partners in safety.
    In closing, Dr. Michaels, let me express my commitment to working 
with you. We have our differences but we share the same goal. I have 
noted on a number of occasions that the cause of worker safety is best 
advanced when we work together.
    My Republican colleagues and I are eager to find common ground with 
you on policies that will protect workers and foster economic growth 
and opportunity.
    With that, I will now recognize the senior Democrat member of the 
subcommittee, Ms. Woolsey, for her opening remarks.
    Chairman Walberg. With that, I will now recognize the 
senior Democrat member of the subcommittee, Ms. Woolsey, for 
her opening remarks.
    Ms. Woolsey. Thank you, Mr. Chairman. Mr. Chairman, this is 
certainly a timely hearing because it takes place against the 
backdrop of an irresponsible appropriations bill that was 
released as a draft by the chairman of the Labor-HHS 
Appropriations Subcommittee. It, meaning the draft 
appropriations subcommittee language, contains riders that will 
handcuff OSHA's ability to prevent deaths and disabling 
injuries from roof falls. It obstructs OSHA's progress on a 
rule to identify and correct hazards in the workplace on an 
ongoing basis. And it blocks an OSHA rule that would ensure 
employers record cumulative trauma disorders so workers and 
employers will know if there is an ongoing problem.
    At the same time, this bill zeroes out OSHA's Susan Harwood 
Training Program. It is a program that awards grants to 
nonprofit organizations to train workers who are employed in 
high hazard industries. The National Roofing Contractors 
Association, which is testifying before us today, received $1.5 
million over the past 5 years for this very same training.
    Mr. Chairman, I commend you for inviting Assistant 
Secretary Michaels to testify, and making the timing work for 
his office, as well as all of us. We are going to learn a lot, 
and most certainly need to hear his opinions on whether worker 
safety will be advanced by the riders put on the draft 
appropriations bill.
    Despite complaints about burdensome regulations, OSHA has 
issued only two modest regulations during the Obama 
administration. My question is, why only two? One updated an 
obsolete cranes and derricks rule. The other updated a shipyard 
rule. And complaints about OSHA piling on rules, they are just 
simply wrong. Two tiny rules is not a piling on.
    So let me turn now to one of today's topics: OSHA's efforts 
to reduce the number of workers falling to their deaths in 
residential construction.
    Between 2003 and 2010, at least 866 workers were killed 
from falls while working in residential construction. Thirty-
five percent of these deaths, some 299 of our fellow citizen 
workers, were caused by workers falling off residential roofs. 
OSHA has tackled this problem with a series of actions. First, 
they issued fall protection rules in 1994, which mandated the 
use of fall protection equipment. Next, to accommodate 
feasibility concerns, OSHA issued interim guidance in 1995, 
exempting the use of personal fall protection for residential 
roofs that were less than 25 feet off the ground and had less 
steep roofs. Third, 13 years later, in 2008, the National 
Association of Home Builders, unions, and other stakeholders 
recommended that OSHA repeal these exemptions for residential 
construction. This past December, OSHA repealed the exemptions 
with a 9-month phase-in period. Yet OSHA is now accused of 
hurting employers, despite doing exactly what was asked of it.
    Let's rewind the clock for a moment. Three years ago, the 
National Association of Home Builders wrote OSHA a six-page 
letter urging it to withdraw its interim guidance, saying that 
it does create uncertainty and confusion. Three years later, 
this same trade association is demanding that OSHA stop doing 
precisely what it asked for. Two weeks ago, they reversed their 
position in a letter to the White House, and declared that 
uncertainties abound as a result of the new guidance, and urged 
OSHA to postpone implementation.
    Mr. Chairman, I want to know--well, no, really what I want 
to do is enter these two NAHB letters into the record so it is 
clear that OSHA has been getting a very mixed message from this 
organization, which is a very important organization to this 
    The National Roofing Contractors Association has also 
opposed OSHA eliminating this exemption. They claim that 
mandating personal fall arrest systems on residential roofs 
creates a greater hazard than using what are called slide 
guards. Slide guards are basically two by six toe boards 
against which roofers brace themselves. And there is a picture 
on the easel of a worker bracing themself on a slide board.
    However, this is not a universal view amongst contractors. 
According to a memo from LeBlanc Construction in Arizona, one 
of its employees was walking down a slightly pitched roof in 
August 2008, when he stumbled and lurched over the two by six 
slide guard. Fortunately, he was wearing a properly fitted 
full-body harness, which engaged, and his fall was broken 
before he ever reached the ground. Lucky him, he had the full 
protection. The company's safety director wrote that this 
incident would likely have resulted in a serious or deadly 
injury had he not been using conventional fall protection.
    So Mr. Chairman, this real-world example points out that it 
is reasonable to question whether slide guards can be used as 
the sole means to save lives. It is also clear that the costs 
of conventional personal fall protection are not excessive. In 
this bucket--I can't lift it, so Richard has to--in this yellow 
plastic bucket is a conventional fall protection device, which 
includes a harness, a lanyard, and an anchor. It costs $99 at 
Home Depot. Sophisticated systems can cost a bit more, but this 
works. So Mr. Chairman, I am sure you would agree that a 
responsible contractor wouldn't risk the life of his or her 
employees by refusing to purchase a simple fall protection 
device. And I hope you would agree that if a contractor decides 
to skimp on basic life safety devices, then they shouldn't be 
in the roofing business.
    And I thank you, and I look forward to hearing from our 
witnesses today and having a good conversation. Thank you very 
    [The statement of Ms. Woolsey follows:]

    Chairman Walberg. I thank the gentlelady. And without 
objection, we will submit for the record the documents that she 
requested. Hearing no objection, they are submitted.
    [The information follows:]

                                                September 14, 2011.
Hon. Bill Daley, Office of the Chief of Staff,
The White House, 1600 Pennsylvania Avenue, NW, Washington, DC 20500.
    Dear Mr. Daley: As a follow-up to our discussion of regulatory 
impediments during our May 20th meeting in Washington, DC, I am writing 
to express the National Association of Home Builders' (NAHB) rising 
concern regarding the Occupational Safety and Health Administration's 
(OSHA) plans to implement and enforce the recent changes made to its 
fall protection requirements.
    You will recall that on Dec. 16, 2010, OSHA withdrew the ``Interim 
Fall Protection Compliance Guidelines for Residential Construction,'' 
and replaced it with the ``Compliance Guidance for Residential 
Construction,'' a change NAHB initially supported. Unfortunately, 
although the new requirements are set to take effect on Sept. 16, OSHA 
has not yet resolved the critical issue of how home builders are 
expected to comply. Since December, NAHB has met several times with the 
OSHA leadership to discuss acceptable and feasible methods of reducing 
or eliminating fall hazards while performing various residential 
construction tasks. For months, builders have been attempting to 
implement OSHA's fall protection standard, determine what safe 
practices can be used, identify what engineering limitations exist, and 
train their workers.
    Despite these efforts, compliance uncertainties abound. The many 
outstanding and unanswered questions leave home builders unsure of what 
they need to do to fully comply and to protect their workers. In 
addition, our members are finding instances where the requirements are 
not practical or attainable. These compliance challenges, coupled with 
OSHA's move away from compliance assistance and toward vigorous, heavy-
handed enforcement, have left home builders fearful of the potentially 
large fines associated with unintentional non-compliance. This fear is 
not without merit, as some OSHA inspectors have gone so far as to 
announce that there will be ``open season'' on home builders once the 
phase-in period for the revised fall protection requirement ends on 
Sept. 15.
    In the spirit of this Administration's commitment to reducing 
burdens on small businesses and ensuring that regulations are efficient 
and effective, it is incumbent upon OSHA to ensure that its fall 
protection requirements are attainable, practical, cost-effective, and 
demonstrably improve jobsite safety. OSHA must also provide clear 
guidance, additional compliance assistance, and penalty relief for 
those who make a good faith effort to comply so as to foster and 
facilitate long-term compliance.
    As a first step, OSHA should continue to delay the enforcement date 
of the revised policy until such time that feasible and cost-effective 
fall protection practices are developed for the small businesses that 
make up the bulk of the home building industry. Second, OSHA's fall 
protection regulation should be reviewed under Executive Order 13563, 
``Improving Regulation and Regulatory Review,'' and revisited and 
reworked to make it more effective and less burdensome, exactly as 
envisioned by the President.
    Jobsite safety is of paramount importance to NAHB members and their 
families. With the compliance deadline quickly approaching, we look 
forward to working with you to resolve these issues so that home 
builders, remodelers and their employees can continue to be safe on the 
            Best regards,
              Barry Rutenberg, Chairman-elect of the Board,
                             National Association of Home Builders.
    Chairman Walberg. I would also ask, without objection, that 
the written statement from the National Association of Home 
Builders dealing with some of the questions and statements that 
you made with those records be submitted as well. Hearing no 
objection, that is submitted for the record.
    [The information follows:]

    Prepared Statement of the National Association of Home Builders

    The National Association of Home Builders (NAHB), on behalf of its 
more than 160,000 members, appreciates the opportunity to submit a 
statement to the Subcommittee on Workforce Protections of the House 
Committee on Education and the Workforce regarding its hearing on 
``Workplace Safety: Ensuring a Responsible Regulatory Environment.'' As 
the Subcommittee examines this critical issue of responsible workplace 
safety regulation, NAHB looks forward to contributing in a positive way 
to seek solutions that both provide for worker safety in the 
residential construction industry and acknowledge the economic 
challenges small businesses face.
    Over the last three years, the Federal Occupational Safety and 
Health Administration (OSHA) has unleashed a regulatory tsunami--a 
significant growth in the number and scope of regulations, along with 
the associated costs of these regulations. The increase in the number 
of OSHA regulations under development and their impact on the home 
building industry has raised concerns among NAHB's members about OSHA's 
priorities. NAHB believes that there are a number of ways in which to 
make regulatory compliance more cost-effective and make OSHA more user 
friendly for small businesses, while improving housing affordability 
and continuing to protect the safety of workers in the home building 
industry. We applaud the efforts of Chairman Walberg and this 
subcommittee to promote a responsible regulatory environment, and look 
forward to the opportunity to discuss ideas for improving worker safety 
while reducing the burden on small business.
    Home builders not only acknowledge a legal and moral obligation to 
comply with OSHA regulations and provide their employees with a safe 
workplace, they share the concerns of this subcommittee, as well as 
OSHA, to ensure the health and safety of all men and women employed in 
the home building industry. Further, we share the same ultimate goal of 
ensuring a safe working environment. Builders know that creating a safe 
work environment makes good business sense. It is no secret that safety 
saves lives--and money. Builders have learned that the money saved 
through reduced workers' compensation costs, lost time due to worker 
injuries, and less time spent on accident claims and reports can be 
converted into improvements in the way they operate their businesses, 
including the management of safety and health on the jobsite. It is 
also no surprise that a safe jobsite is also the key to retaining good 
employees and hiring new ones.
Regulatory Burdens on the Home Building Industry
    NAHB is a building trade association that represents more than 
160,000 member companies nationwide. Our membership consists of 
builders and remodelers of single-family homes, townhomes, apartments, 
and condominiums, as well as thousands of specialty trade contractors. 
More than 95 percent of NAHB builder members meet the federal 
definition of a ``small entity,'' as defined by the U.S. Small Business 
Administration and our members employ approximately 5.6 million people 
nationwide. Our association's builder members will construct about 80 
percent of the new housing units in 2011. The more than 5,800 firms 
that belong to NAHB Remodelers comprise about 17 percent of all firms 
that specify remodeling as a primary or secondary business activity. 
The NAHB Multifamily Council is comprised of nearly 800 builders, 
developers, owners, and property managers of all sizes and types of 
condominiums and rental apartments. Clearly, NAHB's members touch on 
all aspects of the industry and our members provide Americans the 
opportunity to realize the American dream of homeownership.
    The majority of the home building industry is comprised of very 
small businesses. Over 80 percent of NAHB's builder member's build 
fewer than 25 homes per year and more than half build fewer than 10 
homes per year. A typical NAHB builder member firm is truly a small 
business, employing fewer than 12 workers.
    In most small home building companies the owner is the president or 
chief executive officer. Many businesses are a family affair with 
husband and wife teams, brothers, sisters, or kids frequently involved 
in the business. Many times, owners employ only a few workers and view 
them as family, regularly working in the same conditions as their 
employees. The staff and owners at these small companies also wear many 
hats, such as: investor--responsible for funding construction projects; 
salesman--meeting with prospective home buyers; purchasing manager--in 
charge of ordering construction materials and supplies; marketing 
manager--promoting the company and its products; accountant--ensuring 
creditors and employees are paid; construction manager--ensuring that 
the home gets built on time and within budget; and even construction 
worker--swinging the hammer to ensure a quality product.
    Many small home builders are often puzzled by the complexity and 
range of OSHA requirements imposed upon them. Most small construction 
firms do not have a full-time safety professional to implement the 
array of regulations because it is simply not possible or economically 
feasible for these small businesses. They use their limited resources 
to prevent recognized and serious jobsite hazards, such as falls, 
excavations/trenching, electrical safety and improving other worker 
safety and health concerns. A safe and productive workforce is crucial 
to any company, particularly a small one, and it should be stressed 
again that these employers want jobsites free of dangerous hazards.
    The home building industry continues to be one of the most heavily 
regulated industries in the nation, which is a significant reason why 
home ownership is beyond the reach of many Americans. The time and 
costs of compliance not only impact a business's ability to thrive and 
grow, they can also negatively affect housing affordability and stifle 
economic development. Currently, small businesses in the United States 
bear a disproportionate share of the cost of our nation's regulatory 
burden. According to the Small Business Administration, federal 
regulations cost small businesses 40 percent more per employee than it 
costs large businesses, and compliance with these existing regulations 
can be very costly--averaging $10,585 per employee in 2010. In our 
industry, a considerable number of these regulations come from OSHA, 
and the costs imposed by all regulations are financially onerous to 
every aspect of the home building industry.
    These government rules are a constricting web of regulatory 
requirements which affects every aspect of the home building process, 
adding substantially to the cost of construction and preventing many 
families from becoming home owners. The breadth of these regulations is 
largely invisible to the home buyer, the public, and even the 
regulators themselves, yet nevertheless has a profound impact on 
housing affordability and homeownership. These regulations stem from 
legislation, including the Occupational Safety and Health Act.
    While each of these regulations on its own may not be significantly 
onerous or problematic, home builders and contractors are often subject 
to a layering effect, where numerous regulations are stacked on top of 
one another. When a number of seemingly insignificant regulations are 
imposed concurrently by a wide variety of government agencies, the cost 
implications, complexities and delays can be considerable. OSHA for 
example, in 2011 alone, has thirty-one rules that have been selected 
for review or development during the coming year, with eleven rules 
that directly impact the home building industry. Of these eleven rules, 
five regulations (i.e., hazard communication, combustible dust, Injury 
and Illness Prevention Program--I2P2, crystalline silica, and walking 
working surface) were determined to be ``economically significant'' 
rulemakings by the Department of Labor, which means that the final rule 
will have an annual effect on the economy of $100 million or more.
    OSHA must examine the cumulative impacts and burdens placed by the 
myriad regulations--some of which are excessively burdensome, 
impractical and unworkable--particularly for small businesses. NAHB 
believes that OSHA will find sufficient room for efficiencies and 
Working with OSHA
    NAHB supports sensible regulation of the residential home building 
industry to ensure worker safety, and we have been successful in 
collaborating with OSHA in a variety of voluntary endeavors to advance 
jobsite safety throughout the home building industry. We believe that 
our collaborative efforts with OSHA have helped our home builders work 
more safely, which has saved them time and money--savings which 
builders can then pass on to home buyers. Some of the collaborative 
efforts between NAHB and OSHA that have had a positive impact on 
construction safety in the home building industry include:
     Participation in the OSHA Alliance program, where NAHB and 
OSHA have combined its collective resources and focused its attention 
on addressing the safety educational needs of the home building 
industry workforce. This Alliance has been vitally important to 
increasing the awareness at OSHA, and among OSHA inspectors, of the 
differences between residential and commercial construction jobsites, 
and the often crucial differences between ``best practices'' at 
residential vs. commercial build sites.
     Participation in OSHA's Harwood Training Grant program, 
which has allowed NAHB to provide valuable safety training, for free, 
at our local home building associations to over 10,000 home builders 
and trade contractors. Participating in this program has given us a 
greater ability to reach some of our very small builders, who otherwise 
would have no access to organized OSHA training opportunities. 
Additionally, this program has helped us to target the growing Hispanic 
workforce in our industry. As many of the small businesses in our 
industry will tell you, it is vitally important that the training and 
safety materials we provide reach the non-English speaking employee 
population. NAHB is working hard to get Spanish-language safety 
materials out to our builder members, and we continue to urge OSHA to 
do more to ensure that their inspectors and safety materials can target 
this population.
     Participation on the OSHA's Advisory Committee on 
Construction Safety and Health (ACCSH), which has opened line of direct 
communication for home builders with OSHA and has ensured that home 
builders' viewpoints and opinions are taken into account prior to OSHA 
issuing construction safety regulations.
     Participation in the OSHA Partnership program by our local 
associations, which has improved communication between our members and 
OSHA and has had a positive impact on construction safety in our 
    NAHB is not an opponent of safety regulations, as long as these 
safety regulations and rules for enforcement are clearly defined, 
practical, feasible, cost-effective, and improve worker safety. 
Ultimately, NAHB believes the best way to improve worker safety is 
through a collaborative approach with OSHA and a shared goal of 
regulatory compliance.
Clear Rules and Compliance Assistance; Not Heavy Handed Enforcement
    Since December 2010--when OSHA withdrew the ``Interim Fall 
Protection Compliance Guidelines for Residential Construction,'' and 
replaced it with the ``Compliance Guidance for Residential 
Construction,'' (a change NAHB initially supported)--NAHB has been 
working with OSHA to determine acceptable and feasible methods of 
reducing or eliminating fall hazards while performing various 
residential construction tasks. NAHB has met with OSHA leadership on a 
number of occasions and home builders have been attempting to implement 
OSHA's fall protection standard, determine what safe practices can be 
used, identify what engineering limitations exist, and train their 
workers. Still, compliance uncertainties abound. Home builders remain 
unsure how to comply with OSHA's new compliance directive because the 
Agency has not yet clearly defined situations when it may be 
appropriate to use a fall protection plan and alternative fall 
protection procedures, which leaves home builders uncertain of what 
they need to do to fully comply with the regulations and to protect 
their workers. In addition, our members are finding instances where 
OSHA's fall protection regulation are not practical or attainable for 
home builders, especially small companies.
    These compliance challenges, coupled with OSHA's move away from 
compliance assistance and towards vigorous, heavy--handed enforcement, 
have left home builders fearful of the potentially large fines 
associated with unintentional non-compliance with OSHA's fall 
protection standard, as well as other safety and health regulations. 
Since OSHA has revised its administrative penalty calculation system in 
2010, the average fine has doubled. The change in policy came about 
because the Agency believed the previous penalty structure was too low 
to have an adequate deterrent effect--an assumption that home builders 
believe is absolutely false. At a time when home builders are facing 
extreme economic hardships and construction injury and fatality rates 
are declining, NAHB believes that the solution to reduce serious 
injuries and fatalities in the construction industry is compliance 
assistance from OSHA; not heavy-handed enforcement.
    A better solution is an increased focus on OSHA's compliance 
assistance. NAHB is a strong proponent of the Agency's compliance 
assistance programs, such as the on-site Consultation Program, which 
offers free and confidential occupational safety and health compliance 
assistance to small and medium--sized businesses across the United 
States. Such programs greatly benefit home builders who do not have the 
resources to hire a full-time safety professional or develop, 
implement, and maintain extensive safety and health programs on their 
Suggestions for Regulatory Reform
    On January 18, 2011, President Obama signed Executive Order 13563 
``Improving Regulation and Regulatory Review'' which is aimed at 
reducing unnecessary regulatory burdens, promoting economic growth and 
job creation, and minimizing the impacts of government actions on small 
businesses. In addition, the Department of Labor (DOL) has recognized 
the importance of having a formalized system for routine regulatory 
review and is committed to complying with E.O. 13563. The DOL recently 
issued its Preliminary Plan for Retrospective Regulatory Review, which 
creates a framework for reviewing its rules and determining whether 
they are obsolete, unnecessary, unjustified, excessively burdensome, 
counterproductive or duplicative of other regulations. NAHB soundly 
supports this initiative. We are also hopeful this regulatory reform 
initiative leads to streamlined requirements and reduced burdens on the 
home building industry and will help get all struggling industries back 
on their feet.
    However, the DOL Preliminary Plan for Retrospective Regulatory 
Review does little to reduce burdens on the home building industry. 
This plan lists OSHA's ``Signature Burden-Reducing Retrospective Review 
Projects'', which falls very short of expectations. As part of this 
plan, OSHA has committed to identify those construction standards that 
are outdated, duplicative, unnecessary, or inconsistent for removal or 
revision. While we commend OSHA for its effort to address its 
construction standards (for the first time ever) through the popular 
standards improvement project, past experience has shown that the 
Agency is unwilling to tackle revisions to significant rules nominated 
or recommended by the impacted regulated community.
    NAHB has already made a number of suggestions regarding 
prioritizing rules for review and we recommended in March 2011 that 
OSHA seriously consider our candidates for immediate regulatory review 
and revision, including:
     OSHA's fall protection standard, which continues to cause 
confusion in the residential construction industry due to the array of 
different trigger heights for which fall protection is required;
     OSHA's Lead in Construction standard, which has never been 
through the formal notice and comment review process;
     OSHA's trenching and excavation standard due to questions 
being raised as to whether it is appropriate to apply the provisions of 
this rule to house foundations/basement excavations; and
     Administrative enhancements to OSHA's penalty policy, 
which should be evaluated to determine the impacts on small businesses 
and seek their input on whether or not increasing citations and 
penalties will improve the safety and health of workers.
    In the spirit of the President's commitment to reducing burdens on 
small businesses and ensuring that regulations are efficient and 
effective, it is incumbent upon OSHA to ensure that its safety 
regulations are attainable, practical, cost-effective, and demonstrably 
improve jobsite safety.
    The deep recession that has pervaded all segments of the housing 
industry since 2008 continues to retard economic recovery in the United 
States. Home building alone represents between 12 percent and 15 
percent of the nation's Gross Domestic Product, and without a revival 
in this critical industry it is hard to imagine a return to the solid, 
sustainable levels of growth that would provide the jobs our economy so 
desperately needs. The already-battered housing industry, however, 
cannot successfully face these challenges while weighed down by 
excessive regulatory burdens that do little to protect the health and 
safety of the home building industry workforce. These dire conditions 
clearly demonstrate the need for, and benefits of, ensuring that all 
existing and future OSHA regulations are carefully designed, 
promulgated, implemented, and enforced to achieve a clearly defined 
goal while minimizing the burden on small business.
    NAHB appreciates the opportunity to provide this statement to the 
Subcommittee and welcomes the opportunity to work with OSHA and 
Congress to review existing and new regulations in an effort to ensure 
they are efficient, effective and workable for home builders and small 
businesses that drive our industry.
    Chairman Walberg. With that, I will now carry on with the 
hearing as planned. Pursuant to committee rule 7(c), 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 
materials referenced during the hearing to be submitted for the 
official record.
    [The information follows:]
    [Additional submissions of Mr. Korellis follow:]

          National Roofing Contractors Association,
          Washington, D.C. Office, 324 Fourth Street, N.E.,
                          Washington, D.C. 20002, October 25, 2011.
Hon. Tim Walberg, Chairman,
Subcommittee on Workforce Protections, Committee on Education and the 
        Workforce, 2181 Rayburn House Office Building, Washington, DC 
    Dear Chairman Walberg: The National Roofing Contractors Association 
(NRCA) greatly appreciates the opportunity to testify at the Workforce 
Protections Subcommittee hearing on Oct. 5, 2011, with respect to the 
Occupational Safety and Health Administration's (OSHA) recent change in 
fall protection policy and its impact on the roofing industry. We 
believe the hearing allowed for further dialogue on this important 
safety issue and we look forward to continuing to work to address the 
concerns of our industry with both Congress and the agency moving 
forward to resolve the issues discussed at the hearing.
    NRCA is also appreciative of the opportunity to meet with Deputy 
Assistance Secretary for Occupational Safety and Health Jordan Barab 
and other OSHA officials on Wednesday, Oct. 12, to further discuss 
OSHA's fall protection directive. We believe the discussion of our 
concerns at this meeting was productive and we look forward to working 
with agency officials to find the best possible solutions for improving 
worker safety in our industry.
    In an effort to continue this dialogue, NRCA offers the following 
comments in response to the testimony of Dr. David Michaels, Assistant 
Secretary of Labor for Occupational Safety and Health, during the 
hearing and requests that these comments be included in the hearing 
    First and foremost, NRCA agrees with Dr. Michaels when he says that 
``Over the longer term, of course, safety pays: good safety and health 
management tends to translate into profitability and a stronger 
national economy by preventing worker injuries, saving on a host of 
costs, spurring worker engagement, and enhancing the company's 
reputation.'' This is a message we have been delivering to our 4,000 
members, consistently, for many years.
    In fact, NRCA was the very first association to develop a joint 
labor, management and government safety partnership program with OSHA 
in 1997, which helped OSHA to focus its attention on the most egregious 
violations in our industry. What we do object to, however, is the 
promulgation of rules that are not based on empirical data, do not 
involve the affected stakeholders and fail to provide the flexibility 
necessary to ensure the best possible safety solutions for the many 
different types of workplace conditions encountered by contractors on 
roofing worksites.
    That is the crux of our objection of the regulatory action OSHA 
took in December, 2010, by rescinding its interim guidelines for fall 
protection in residential construction.
    In his written statement, Dr. Michaels asserts that ``some 
residential construction operations (for example, on less steep roofs) 
had received a temporary exemption in 1995 while a few remaining 
feasibility issues were resolved.'' In point of fact, OSHA did not 
issue a temporary exemption in 1995; it issued interim guidelines for 
fall protection. The distinction is important because those guidelines 
were intended to replace the existing standard until a new rulemaking 
could be conducted. A full rulemaking was never conducted; instead, 
OSHA simply rescinded the interim standard without sufficiently 
consulting with NRCA and other affected stakeholders. While that action 
may be technically within OSHA's purview, it is hardly consistent with 
the ``extensive consultation with all affected parties'' that Dr. 
Michaels says is ``one of the most important parts of the regulatory 
    Dr. Michaels goes on to say that ``many states, including 
California and Washington, never adopted our exemption (sic), and have 
required residential construction to protect workers with fall 
protection since 1994.'' A casual reader of that statement might 
conclude that California and Washington have implemented fall 
protection programs that are at least as vigorous as OSHA's.
    However, the California fall protection standards were carefully 
developed with the involvement of affected stakeholders--much like the 
ideal Dr. Michaels mentions--and arrived at a much different outcome 
than the current federal rules now in place.
    For example, California's rules provide for exemptions from fall 
protection in some cases involving minor repairs. California's rules 
also allow for the use of ``roof jacks,'' or ``slide guards,'' which 
are now prohibited by federal OSHA except in unusual cases. 
California's rules have different height restrictions from federal 
OSHA's, and have different fall protection requirements based on the 
type and slope of roof being installed. This common-sense approach has 
proven to be incredibly effective, and has been well received by 
employers and workers alike. In 2009, the last year for which complete 
data are available from Cal-OSHA, there were exactly 3 fatal falls 
involving roofing workers in California. The data do not show how the 
falls occurred, but since about 10% of construction workers in the U.S. 
are employed in California, one would expect the number of fatal falls 
in California to be much higher.
    During questioning, Dr. Michaels was asked whether slide guards 
prevent falls. He responded by saying: ``What slide guards do is they 
stop slides, they don't stop trips.'' As the only evidence for this 
assertion, he referred to an anecdote mentioned earlier by Rep. Woolsey 
about a worker roofer; regardless, it reinforces our position that OSHA 
has no reliable data to support its policy change.
    Interestingly, our review of OSHA data for fatal falls from roofs 
tells a much different story. In the period from 2004 to 2008, OSHA 
reports a total of 153 fatal falls from roofs. Exactly two of those 
(Dr. Michaels, elsewhere, has said three) ostensibly involved the use 
of slide guards. But the information surrounding even those two cases 
is unclear; one cites the use of a ``toeboard'' and the other a ``roof 
bracket.'' So it is possible that the information in those two reports 
may not reflect use of an OSHA-compliant slide guard. Nevertheless, 
neither of the two accident reports we found described a worker 
tripping and falling over a slide guard; instead, they were 
attributable to the roof bracket and toeboard being improperly 
    Those same data reveal 14 fatal falls from roofs when personal fall 
arrest systems--harnesses and lanyards--were used. In most cases, the 
worker detached himself from either the anchor point on the roof or 
from the harness itself. In a July 18, 2011 letter to Chairman Walberg, 
Dr. Michaels states that ``* * * IMIS records showed no instances where 
workers experienced a fatal fall while using a personal fall arrest 
system.'' Subsequently, Dr. Michaels amended that language to say that 
there were ``a few fatalities'' that involved the use of personal fall 
arrest systems, but only when those were improperly used. However, this 
misses the point. Workers do--and will--detach themselves from the 
harnesses, no matter how thoroughly they have been trained. They do so 
because the harnesses are cumbersome to work with; because the workers 
are expected to move around the roof--especially when they are removing 
an existing roof--and because personal fall arrest systems introduce a 
variety of new and greater hazards, most notably tripping.
    The other point to be made is that it appears that most of the 
fatal falls from roofs in the OSHA database occurred when no fall 
protection at all was used. NRCA has never argued for no fall 
protection; instead we continue to maintain that slide guards have 
proven to be effective (more effective than the now-mandated personal 
fall arrest systems) and, especially in reroofing and repair 
operations, are a much more realistic approach to fall protection. NRCA 
believes strongly that all contractors must use effective means of fall 
protection and is willing to partner with OSHA in efforts to improve 
compliance with fall protection regulations that truly embody the best 
possible solutions for the roofing industry.
    In the course of the hearing, Rep. Woolsey displayed a chart which 
she said showed that fatal falls from commercial roofing facilities 
decreased in the period from 1992-2008, which is true. She went on to 
say that ``commercial didn't get the exemption,'' and that 
``residential went up considerably'' in comparison and did get the 
exemption. The implicit suggestion is that conventional fall protection 
methods are required on commercial roofing projects, but were exempted 
from residential roofing projects. That is simply not the case. A 
number of fall protection options exist for commercial (or more 
correctly, low-slope) roofing projects that include the use of a 
warning line and safety monitor. In commercial roofing, in other words, 
fall protection options are available that are most appropriately 
suited to the specific project and not a one-size-fits-all 
proscription. It is instructive that having multiple options best 
suited to the Fatal Occupational Injuries for the years 1992--2008 
shows that fatal injuries from falls among residential roofing 
contractors ``went up considerably.'' However, this is not consistent 
with our reading of BLS CFOI statistics. BLS officials indicate that 
CFOI data was not broken out between residential and nonresidential 
roofing contractors prior to 2003, so it is difficult to determine the 
long-term trend from 1992 to the present. However, from 2003 to 2010, 
fatal injuries from all types of falls among residential roofing 
contractors actually declined by 27.7 percent, from 18 in 2003 to 13 in 
2010 (2010 data are preliminary), after peaking in 2006. Falls from 
roofs among roofing contractors actually decreased by 42.8 percent in 
that period, from 14 in 2003 to 8 in 2010. NRCA agrees that we need to 
continue working to see that fatal falls in residential roofing 
continue this pattern of decline in the future, and we fear that OSHA's 
fall protection directive will make it more difficult to achieve this 
goal. The most recent BLS data on roofing falls among residential and 
commercial contractors is enclosed.
    OSHA's fall protection standard for residential construction does 
also allow for other means of fall protection to be used, in addition 
to personal fall arrest systems. These include the installation of 
guardrails around the home and the installation of safety nets or catch 
platforms around the home. These have been used by roofing contractors 
only in the rarest of circumstances; the obvious problem is how to 
protect the workers who are installing these devices from falling 
    OSHA also recently published a ``Fact Sheet'' on its website to 
help employers comply with the fall protection standard. The Fact Sheet 
says that roofing contractors might also consider the use of aerial 
lifts and scaffolds on roof repair or replacement projects. The Fact 
Sheet also shows a rooftop-mounted ``whirlybird'' in use on a new 
residential construction project. The installation of a whirlybird 
system on a typical reroofing project puts workers at substantial risk, 
and we would simply point out the infeasibility of using aerial lifts, 
scaffold systems or whirlybirds on a typical, landscaped single-family 
    In his written statement, Dr. Michaels alleges that ``by issuing 
our new residential fall protection policy, OSHA leveled the playing 
field for that unhappy small contractor and for thousands of other 
responsible contractors who are trying to compete with those who are 
trying to cut corners and costs on worker safety.'' (He had previously 
described a small contractor who complained that many of his 
competitors weren't complying with the new policy.)
    Unfortunately, the reality is entirely different. According to 
Census Department data from 2005, more than half of the roofing 
contractors in the country have four or fewer employees. Most of these 
companies work in a single community, doing primarily roof repair and 
replacement work.
    Too many use no fall protection at all, and do in fact have a 
competitive advantage in the marketplace (an advantage, we agree, that 
is lost as soon as the company has a serious accident or injury). Quite 
simply, the more onerous and complex regulations become, the more of an 
advantage an irresponsible employer has.
    In the course of the hearing, Rep. Woolsey displayed a package from 
The Home Depot that workers, because they are required to be used on 
steeper-sloped roofs. The issue is: what is the most effective means of 
preventing falls? The data suggest slide guards are the most effective 
method on lower-sloped roofs; data NRCA has compiled, and shared with 
OSHA, also show a significant number of non-fatal injuries that occur 
when personal fall arrest systems are used on lower-sloped roofs, 
mostly resulting from tripping.
    Finally, Dr. Michaels describes, in his written statement, ``the 
lengthy, careful and methodical regulatory process, with its robust 
opportunities for stakeholder input and comment * * *'' that will 
``produce a common sense and successful Injury and Illness Prevention 
Program proposal and standard.'' As regards the new fall protection 
policy, those ``robust opportunities'' included exactly two meetings 
with NRCA; at one of those, on Dec. 8, 2010, NRCA was assured that a 
rule change was not imminent and that the discussions would continue. 
On Dec. 16, 2010, the new fall protection policy was issued, without 
any further dialogue.
    We also find it ironic that Dr. Michaels took the trouble to point 
out the proposed Injury and Illness Prevention Program (commonly: I2P2) 
at this hearing. That program is based on the premise that accident and 
injury prevention should result from an analysis of hazards, so that 
the most suitable form of protection can be developed for each unique 
circumstance. That approach flies in the face of the new fall-
protection policy, which essentially provides a single remedy for fall 
protection on all residential projects.
    Again, NRCA appreciates the opportunity to testify before the 
Subcommittee and to respond further to the issues discussed at the 
hearing. We look forward to continuing to work with members of the 
Subcommittee and OSHA officials on this very important issue.
                                      William A. Good, CAE,
                                          Executive Vice President.

Enclosure: BLS Statistics on Residential and Nonresidential Falls in 
    [Additional submissions of Ms. Woolsey follow:]

     American Cancer Society Cancer Action Network,
                             555 11th Street NW, Suite 300,
                            Washington, DC 20004, October 14, 2011.
Hon. Tim Walberg, Chairman; Hon. Lynn Woolsey, Ranking Member,
Subcommittee on Workforce Protections, Committee on Education and the 
        Workforce, 2181 Rayburn House Office Building, Washington, DC 
    Dear Chairman Walberg and Ranking Member Woolsey: Recently, on 
October 5, 2011, the Subcommittee on Workforce Protections conducted a 
hearing entitled Ensuring a Responsible Regulatory Environment in which 
a member of the subcommittee referred to an American Cancer Society 
(Society) position on the subject of silica exposure and cancer.
    The Society looks to the research of the National Institutes of 
Health's National Toxicology Program and the International Agency for 
Research on Cancer for determinations regarding carcinogenicity. Based 
on the evidence, certain forms of silica present in the workplace are 
carcinogenic, and this position is stated on the Society's website at 
the following address:
    The American Cancer Society Cancer Action Network (ACS CAN), the 
nonprofit, nonpartisan advocacy affiliate of the American Cancer 
Society, supports evidence-based policy and legislative solutions 
designed to eliminate cancer as a major health problem. ACS CAN works 
to encourage elected officials and candidates to make cancer a top 
national priority.
    If I may be of any further assistance in this matter, please do not 
hesitate to contact me.
                                     Christopher W. Hansen,


    Chairman Walberg. We have two distinguished panels today. 
And I would like to begin first by introducing the first panel. 
One, Assistant Secretary of Occupational Safety and Health 
Administration, Dr. David Michaels. Before I recognize Dr. 
Michaels, let me just cut to the chase about the hearing. You 
know how the lights work. I don't have to go through that. But 
also, in appreciation for you being here, I am not going to be 
hard and fast about it. But let's do it all within reason of 
the 5 minutes. But it is greatly appreciated that you are here 
to give direct testimony to us. So having said that, I 
recognize Dr. Michaels for his testimony.

                            OF LABOR

    Mr. Michaels. Chairman Walberg, Chairman Kline, Ranking 
Member Woolsey, members of the committee, thank you for 
inviting me to testify today. This year marks OSHA's 40th 
anniversary. And I think that by any measure, the agency has 
been one of the true successes of our government's worker 
protection efforts. OSHA has proven that we can have both jobs 
and job safety.
    The evidence is unambiguous: OSHA's commonsense standards 
save lives. For example, in the late 1980s, OSHA enacted a rule 
to protect workers in grain-handling facilities from dust 
explosions. Since then, explosions in the industry have 
declined 42 percent, worker injuries have dropped 60 percent, 
and deaths have fallen 70 percent. And the industry continues 
to thrive.
    In fact, impeding OSHA from doing its job can destroy both 
the fabric of American families and our fragile economy. A 
workplace accident can shake a family's tenuous hold on their 
middle-class status. With so many American families struggling 
to make ends meet, few can afford the devastating impact of a 
workplace injury, illness, or fatality. In addition, these 
tragedies take an enormous toll on the Nation's economy in the 
form of higher workers compensation costs, lost productivity, 
and property damage. This is a toll that is intolerable any 
time, but particularly in the difficult economic times that we 
are experiencing today. That is why the primary purpose of 
OSHA's enforcement program is deterrence.
    We recognize that most employers want to keep their 
employees safe, and they make great efforts to protect them 
from hazards. Our strategic targeting, focusing on the most 
dangerous workplaces and most recalcitrant employers, results 
in the most efficient and effective use of the taxpayers' 
money. Strong and fair enforcement of the law has particular 
importance during this difficult economic period. Responsible 
employers who invest in the health and safety of their 
employees are at a disadvantage competing with irresponsible 
employers who cut corners on safety. Enforcement, accompanied 
by meaningful penalties, levels the playing field.
    Our enforcement program is built upon the foundation of 
commonsense standards. For 40 years, OSHA has been carefully 
crafting safeguards that have made working conditions safer, 
without slowing the growth of American business. Our standards 
are the product of a complex process that encourages the input 
of our stakeholders and includes the active participation by 
economists, scientists, technological experts, employers, trade 
associations, labor, and the public. OSHA holds stakeholder 
meetings, solicits written comments, and conducts informal 
hearings in a way that I don't think is paralleled in any other 
regulatory agency. All participants in OSHA's standard-setting 
hearings have the opportunity to question, to cross-examine any 
other participants when that second participant presents. OSHA 
welcomes public participation in the rulemakings, which as you 
can imagine, can be both lively and lengthy affairs. But we do 
that to ensure that OSHA's legal safeguards make sense.
    The length and complexity of the process, along with the 
multiple levels of public participation, mean that OSHA issues 
few new standards. For example, over the past 2 years, OSHA has 
issued only two major standards: cranes and derricks; and 
shipyard safety. While we may not issue many standards, I feel 
strongly that the standards on our current regulatory agenda 
are vitally important. I am committed to moving them forward as 
expeditiously as possible, and I hope this Congress will 
support our thoughtful efforts.
    Finally, I would like to share with you OSHA's strong 
commitment to compliance assistance. The centerpiece of our 
compliance assistance program is our On-Site Consultation 
Program, which provides professional, high-quality, and 
individualized assistance to small business at no cost. We 
understand that most small businesses want to protect their 
employees, but often cannot afford to hire a health and safety 
professional. Right now, our consultation program is giving the 
highest priority to residential construction contractors to 
help them get up to speed on our new fall protection policy. We 
strategically use our compliance assistance resources where 
they will matter the most. That is why we are committed to 
increasing our outreach to hard-to-reach vulnerable workers, 
who often have the most dangerous jobs. And through our VPP and 
SHARP programs, we hold up as role models employers who have 
developed outstanding injury and illness prevention programs. 
These programs work, and these employers have greatly reduced 
worker injury rates, and they experience higher productivity 
and significant cost savings by lowering their workers 
compensation premiums.
    Thank you for inviting me today. I am happy to answer your 
    Chairman Walberg. Thank you, Dr. Michaels.
    [The statement of Mr. Michaels follows:]

 Prepared Statement of David Michaels, Ph.D., MPH Assistant Secretary, 
Occupational Safety and Health Administration, U.S. Department of Labor

    Thank you very much for inviting me to testify here today. I 
appreciate the opportunity to come before you to describe the important 
work of the Occupational Safety and Health Administration (OSHA), and 
to listen to your comments and suggestions about how we can best 
fulfill the important mission given to us by the Congress to protect 
America's workers while on the job.
    This year marks the 40th anniversary of the establishment of OSHA 
and I think by any measure, this agency has been one of the true 
successes of government efforts to protect workers and promote the 
public welfare.
    It is difficult to believe that only 40 years ago most American 
workers did not enjoy the basic human right to work in a safe 
workplace. Instead, they were told they had a choice: They could 
continue to work under dangerous conditions, risking their lives, or 
they could move on to another job. Passage of the Occupational Safety 
and Health Act (OSH Act) laid the foundation for the great progress we 
have made in worker safety and health since those days.
    The promise of a safe and healthful workplace is as important today 
as it was 40 years ago when the OSH Act first passed. We understand and 
share your concern and the concern of all Americans that protecting 
workers' health and lives on the job not interfere with the efforts we 
are making to ensure that businesses and jobs in this country grow and 
thrive on a level playing field. But neither should we let an economic 
crisis leave workers more at risk. As the President recently reminded 
us in his address to the Joint Session of Congress:
    ``what we can't do * * * is let this economic crisis be used as an 
excuse to wipe out the basic protections that Americans have counted on 
for decades. I reject the idea that we need to ask people to choose 
between their jobs and their safety.''
    OSHA has proven over the past 40 years that we can have both jobs 
and job safety. Employers, unions, academia, and private safety and 
health organizations pay a great deal more attention to worker 
protection today than they did prior to enactment of this landmark 
legislation. Indeed, the results of this law speak for themselves. In 
1971, the National Safety Council estimated that 38 workers died on the 
job every day of the year. Today, the number is 12 per day, with a 
workforce that is almost twice as large. Injuries and illnesses also 
are down dramatically--from 10.9 per 100 workers per year in 1972 to 
less than 4 per 100 workers in 2009.
    Some of this decline in injuries, illnesses and fatalities is due 
to the shift of our economy from manufacturing to service industries. 
However, it is also clear that much of this progress can be attributed 
to improved employer safety and health practices encouraged by the 
existence of a government regulatory agency focused on identifying and 
eliminating workplace hazards and assisting employers in implementing 
the best practices to eliminate those hazards.
    The evidence is unambiguous--OSHA's common sense standards save 
     In the late 1980s, OSHA enacted a standard to protect 
workers in grain handling facilities from dust explosions. Since then, 
explosions in these industries have declined 42 percent, worker 
injuries have dropped 60 percent, and worker deaths have fallen 70 
     OSHA's 1978 Cotton Dust standard drove down rates of brown 
lung disease among textile workers from 12 percent to 1 percent.
     OSHA efforts in promulgating the asbestos and benzene 
standards are responsible for dramatic reductions in workplace exposure 
to asbestos, a mineral that causes asbestosis, lung cancer and 
mesothelioma (a cancer of the lining of the lungs and stomach) and to 
benzene, a solvent that causes leukemia. These two standards alone have 
prevented many thousands of cases of cancer.
     OSHA standards have helped shield healthcare workers from 
needlestick hazards and bloodborne pathogens. According to the Centers 
for Disease Control and Prevention, new cases of workplace-acquired 
Hepatitis B among healthcare workers decreased 95%, as a result of the 
widespread hepatitis B immunization and the use of universal 
precautions and other measures required by OSHA's bloodborne pathogens 
    \1\ http://www.cdc.gov/niosh/docs/2000-108/pdfs/2000-108.pdf
    Although these are notable successes, there is still much work to 
do. Every week I sign a stack of letters, telling the mother, or 
husband, or child of a worker killed on the job that OSHA is opening an 
investigation into the events that led to the death of their loved one.
    Each of the twelve workers who die on the job every single day in 
this country could well leave behind grieving children, spouses and 
parents. Unfortunately, most of these fatalities never make the 
national headlines or even the front pages of local papers.
    And these 12 workers killed on the job today and every day do not 
account for the tens of thousands of workers estimated to die every 
year from work-related disease.
    Too often overlooked are the over 3 million workers who are 
seriously injured each year. Far too many of these injuries end up 
destroying a family's middle class security.
    Workplace injuries, illnesses and fatalities take an enormous toll 
on this nation's economy--a toll that is barely affordable in good 
times, but is intolerable in difficult economic times such as we are 
experiencing today. A March 2010 Liberty Mutual Insurance company 
report showed that the most disabling injuries (those involving 6 or 
more days away from work) cost American employers more than $53 billion 
a year--over $1 billion a week--in workers' compensation costs alone. 
Indirect costs to employers, such as costs of down time for other 
employees as a result of the accident, investigations, claims 
adjustment, legal fees, and associated property damage can be up to 
double these costs. Costs to employees and their families through wage 
losses uncompensated by workers' compensation, household 
responsibilities, and family care for the workers further increase the 
total costs to the economy, even without considering pain and 
    \2\ Liberty Mutual Research Institute for Safety, 2010 Liberty 
Mutual Workplace Safety Index, available at http://
document&pagename=LMGResearchI nstitute/cms--document/
    We recently saw the real economic impact of neglecting job safety 
when Con Agra announced that it would close down the Slim Jim plant in 
Garner, North Carolina after a violent gas explosion in the plant 
killed four workers. Not only did four workers never come home that 
day, but now their community is devastated with over 400 employees laid 
    Almost the same thing happened in Jacksonville Florida a few years 
ago. Just before the 2007 holiday season, a similar explosion at T2 
Laboratories killed four workers and hospitalized 14. The explosion's 
force was equivalent to detonating about a ton of TNT and it spread 
debris up to a mile from the plant. The blaze required every hazardous 
material unit in Jacksonville and over 100 firefighters to respond. In 
the following months, T2 permanently shut down its facilities, and laid 
off all the workers.
    Clearly it's not only good business to prevent workplace injuries 
and illnesses, but the small amount of money that goes to fund this 
agency is a worthwhile investment for the general welfare of the 
American people.
    I want to review with you briefly how OSHA approaches these 
Deterrence Through Fair Enforcement
    The primary purpose of OSHA's enforcement program is deterrence. 
OSHA's enforcement program specifically targets the most dangerous 
workplaces and the most recalcitrant employers. We recognize that most 
employers want to keep their employees safe and make great efforts to 
protect them from workplace hazards. We are committed to being good 
stewards of the taxpayers' funds entrusted to us by using our resources 
as efficiently and effectively as possible to protect those workers 
most at risk.
    Strong and fair enforcement of the law has particular importance 
during this difficult economic period. In the short term, responsible 
employers who invest in the health and safety of their employees are at 
a disadvantage competing with irresponsible employers who cut corners 
on worker protection and hazard abatement. Strong and fair enforcement, 
accompanied by meaningful penalties, levels the playing field.
    Let me give you a current example. Just last week a reporter called 
to relate a conversation he had just had with a very unhappy small 
residential building contractor who complained that while he readily 
provided fall protection to ensure the safety of his employees, many of 
his competitors did not, giving them an unfair advantage when bidding 
contracts. How was that fair?
    Well the fact is, it wasn't fair. He was right. Falls are the 
number one cause of fatalities in construction, killing almost 1900 
workers from 2005-2009 and injuring thousands. And 548 of these 
fatalities occurred in residential construction. Yet some residential 
construction operations (for example, on less steep roofs) had received 
a temporary exemption in 1995 while a few remaining feasibility issues 
were resolved. (Note that many states, including California and 
Washington, never adopted our exemption, and have required residential 
construction to protect workers with fall protection since 1994.) 
Seventeen years later, those issues have been resolved and OSHA 
received requests from business--including the National Association of 
Home Builders, the organization representing 22 state OSHA programs and 
labor organizations--to remove the confusing exemption. So last 
December, OSHA announced that it would fully enforce its 1994 fall 
protection standard for all residential construction operations
    And, by issuing our new residential fall protection policy, OSHA 
leveled the playing field for that unhappy small employer and for 
thousands of other responsible contractors who are trying to compete 
with those who are trying to cut corners and costs on worker safety.
    Over the longer term, of course, safety pays: good safety and 
health management tends to translate into profitability and a stronger 
national economy by preventing worker injuries, saving on a host of 
costs, spurring worker engagement, and enhancing the company's 
    The core purpose of OSHA's enforcement program is prevention, not 
punishment. Just as it makes sense for the police to pull over a drunk 
driver before he causes death or injury, it is OSHA's objective to 
encourage employers to abate hazards before workers are hurt or killed, 
rather than afterwards, when it's too late. In fact, 97% of OSHA's 
citations are issued without a worker being killed or injured first. 
This is the essence of prevention.
    The fact is that OSHA saves lives. It is sometimes difficult to 
illustrate individual cases of where OSHA enforcement has saved a life 
because, in general, it is statistics that show that injuries have been 
prevented and that lives have been saved by our efforts. In general, we 
cannot identify the particular life saved or the tragic accident that 
never happened because of hazard abatement.
    But occasionally a series of events occurs in which the time 
between the hazard abatement and injury prevented is so short, and the 
relationship so obvious, that the impact of OSHA enforcement is 
    Just a few weeks ago, OSHA cited a small residential construction 
employer, German Terrazas, for not using fall protection. He got the 
message, purchased fall protection equipment and signed up for an OSHA 
safety class. Two weeks later, German Terrazas himself fell while 
working on a residential roof--but he didn't fall to the ground and he 
didn't fall to his death. The fall restraint equipment that he 
purchased and used after the OSHA citation very likely saved his life.
    Another such series of events occurred earlier this year, in 
Mercerville, Ohio. Our inspectors were called to investigate a report 
of a worker in a deep construction trench. Upon arrival, OSHA inspector 
Rick Burns identified a worker in a 10-foot deep unprotected trench. 
OSHA regulations require trenches greater than 5 feet deep to be 
shored, sloped or protected in some way.
    Burns immediately directed the worker to leave the trench. The 
worker exited the trench and five minutes later, the walls of the 
trench collapsed right where the worker had been standing. There is 
little doubt that he would have been seriously injured or killed absent 
the intervention of the OSHA inspector. These two photographs, taken 
only minutes apart at this site, illustrate the value of OSHA 

    This may seem like a rare series of events, but a similar sequence 
occurred a few short weeks later in Auburn, Alabama. OSHA inspectors 
ordered workers out of a trench minutes before it collapsed. A 
photograph taken minutes later is below; before they exited the trench, 
the workers had been situated just below the excavator in the photo.

    Unfortunately, it doesn't always end this way. Last year, for 
example, OSHA fined a Butler County, PA construction company $539,000 
following the investigation of the death of Carl Beck Jr., a roofing 
worker who fell 40 feet at a Washington, PA worksite. Fall protection 
equipment was available on site but Christopher Franc, the contractor, 
did not require his workers to use it. Mr. Beck was 29 years old and is 
survived by his wife and two small children. Mr. Franc entered a guilty 
plea in federal court to a criminal violation of the Occupational 
Safety and Health Act and was sentenced to three years probation, six 
months home detention, and payment of funeral expenses on his 
conviction of a willful violation of an OSHA regulation causing the 
death of an employee.
    . Federal OSHA and the 27 OSHA state plans together have 
approximately 2,200 inspectors charged with protecting more than 130 
million workers in more than 8 million workplaces across the country. 
And the ratio of OSHA compliance officers to covered workers has fallen 
substantially over the past three decades. In 1977, for example, OSHA 
had 37 inspectors for every million covered workers, while today OSHA 
has just over 22 inspectors for every million covered workers.

    OSHA conducts inspections of those workplaces where there has been 
a fatality, multiple hospitalizations, where a worker files a formal 
complaint or where there is an imminent danger of a worker's death. 
Beyond those inspections, we have put great thought and strategic 
planning into prioritizing the rest of our enforcement program in order 
to ensure that we are being as efficient and effective as possible. For 
example, through our Site Specific Targeting Program, OSHA focuses on 
those employers with the most injuries and illnesses in their 
workplaces. OSHA also has a variety of National Emphasis Programs 
(NEPs) and Local Emphasis Programs (LEPs) that target major hazards or 
hazardous industries. For example, following the British Petroleum (BP) 
Texas City explosion that killed 15 workers in 2005, OSHA implemented 
an NEP to inspect this nation's refineries. We have NEPs for 
combustible dust and LEPs focusing on grain engulfments where we've 
seen a large number of fatalities, many of which were of very young 
workers, over the past year.
    OSHA's Severe Violator Enforcement Program (SVEP) is another 
example of our strategic investments in enforcement. SVEP concentrates 
resources on inspecting employers who have demonstrated indifference to 
their OSH Act obligations by committing willful, repeated, or failure-
to-abate violations.
    SVEP is intended to ensure that OSHA is more able to efficiently 
identify and focus our resources on the most recalcitrant employers who 
disregard the law and endanger the lives of their employees.
OSHA Penalties
    OSHA proposes penalties to employers when we find hazards that 
threaten the health and safety of workers. As discussed earlier, the 
purpose of the penalties is deterrence. OSHA penalties are set by law. 
Maximum OSHA penalty amounts have been unchanged since 1990. The 
maximum penalty for a serious violation remains at $7000. OSHA is 
statutorily mandated to take into account a business's size, history 
and evidence of good faith when calculating a penalty. Moreover, OSHA 
penalties do not rise with inflation, which means that the real dollar 
value of OSHA penalties has been reduced by 39% since 1998.
    For example, last year a 47 year-old roofing employee, with seven 
years experience, stepped off the back of a roof and fell 15 feet onto 
a concrete slab below. He died two days later. He had not been provided 
fall protection. The total proposed penalty for his employer was only 
$4,200 for not providing fall protection. After the incident, the 
employer provided fall protection equipment including harnesses, 
lanyards and roof anchors to employees.
    While OSHA recently modified its administrative penalty policy 
reduction factors to provide a modest increase in average penalties, 
the average OSHA penalty remains very low. In 2010, OSHA's average 
penalty for a serious violation (capable of causing death or serious 
physical harm), was only $1,000 and for small employers, only $763. 
Right now the average penalty for all employers is closer to $2,000, 
still low, but an improvement. OSHA continues to closely monitor the 
effect of our penalties on small businesses.
    While OSHA is working within the parameters set in existing law, 
the Administration continues to support the Protecting America's 
Workers Act in order to give OSHA the tools to impose appropriate 
penalties to increase deterrence and save lives. OSHA must be empowered 
to send a stronger message in the most egregious cases.
Compliance Assistance: Help for Small Businesses and Vulnerable Workers
    The second major component of OSHA's strategy is compliance 
assistance, which includes outreach, consultation, training, grant 
programs and cooperative programs. Our commitment to compliance 
assistance is strong and growing.
    There are several principles under which our compliance assistance 
program operates:
     We believe that no employer, large or small, should fail 
to provide a safe workplace simply because it can't get accurate and 
timely information about how to address workplace safety or health 
problems or how to implement OSHA standards.
     All workers, no matter what language they speak or who 
their employer is, should be knowledgeable about the hazards they face, 
the protections they need and their rights under the OSH Act.
     Employers that achieve excellence in their health and 
safety programs should receive recognition.
    Too many workers still do not understand their rights under the law 
or are too intimidated to exercise those rights. Too many workers and 
employers still do not have basic information about workplace hazards 
and what to do about them. And too many employers still find it far too 
easy to cut corners on safety, and even when cited, consider low OSHA 
penalties to be just an acceptable cost of doing business.
    OSHA's primary compliance assistance program is its On-site 
Consultation Program. We understand that most small businesses want to 
protect their employees, but often cannot afford to hire a health and 
safety professional. This help for small businesses is critical both 
for the health of these businesses and for the safety and health of the 
millions of workers employed by small businesses. OSHA's data shows 
that 70% of all fatality cases investigated by the Agency occur in 
businesses that employ 50 or fewer employees. Our compliance assistance 
focus on small businesses is good for the economy and for workers.
    OSHA's On-site Consultation Program is designed to provide 
professional, high-quality, individualized assistance to small 
businesses at no cost. This service provides free and confidential 
workplace safety and health evaluations and advice to small businesses 
with 250 or fewer employees, and is separate and independent from 
OSHA's enforcement program. Last year, the On-Site Consultation Program 
conducted over 30,000 visits to small businesses.
    In these difficult budgetary times, the high priority that we put 
on this support for small businesses is manifest in the President's 
budget requests. In FY 2011, the President requested a $1 million 
increase in this program, and this request was repeated in the FY 2012 
    In addition, OSHA has over 70 compliance assistance specialists 
located in OSHA's area offices who are dedicated to assisting employers 
and workers in understanding hazards and how to control them. Last year 
alone, this staff conducted almost 7,000 outreach activities reaching 
employers and workers across the country.
    OSHA continues its strong support for recognizing and holding up 
those employers who ``get safety''. We continue to support OSHA's 
landmark Voluntary Protection Program. For small employers, the OSHA 
On-site Consultation Programs Safety and Health Achievement Recognition 
Program or SHARP, also recognizes small businesses that have achieved 
excellence. In order to participate in these programs, employers commit 
to implement model injury and illness prevention programs that go far 
beyond OSHA's requirements. These employers demonstrate that ``safety 
pays'' and serve as a model to all businesses.
    The experience that ALMACO, a manufacturing company in Iowa, had 
through working with On-site Consultation and being recognized in SHARP 
is a good example of the positive impact these programs have on 
workplace safety and health. Prior to working with the Iowa Bureau of 
Consultation and Education (Iowa Consultation) ALMACO's injury and 
illness rate was over three times the national average for companies in 
its industry. By 2010 approximately 10 years after initiating a 
relationship with Iowa consultation, ALMACO had lowered its incident 
rate to less than half the industry average. Further, since 2005, it 
has experienced a 37% reduction in its workers compensation insurance 
employer modification rate, and a 79% reduction in its employee 
turnover rate.
    For the vast majority of employers who want to do the right thing, 
we want to put the right tools in their hands to maintain a safe and 
healthful workplace. That is why we invest in our compliance assistance 
materials and why our website is so popular. New OSHA standards and 
enforcement initiatives are always accompanied by web pages, fact 
sheets, guidance documents, on-line webinars, interactive training 
programs and special products for small businesses. In addition, our 
compliance assistance specialists supplement this with a robust 
outreach and education program for employers and workers.
    A major new initiative of this administration has been increased 
outreach to hard-to-reach vulnerable workers, including those who have 
limited English proficiency. These employees are often employed in the 
most hazardous jobs, and may not have the same employer from one week 
to the next.
    We have particularly focused on Latino workers. Among the most 
vulnerable workers in America are those who work in high-risk 
industries, particularly construction. Latino workers suffer higher 
work related fatality and injury rates on the job because they are 
often in the most dangerous jobs and do not receive proper training.
    Another critical piece of our strategic effort to prevent workplace 
fatalities, injuries and illnesses is training workers about job 
hazards and protections. OSHA's Susan Harwood Training grant program 
provides funding for valuable training and technical assistance to non-
profit organizations--employer associations, universities, community 
colleges, unions, and community and faith based organizations. This 
program focuses on providing training to workers in high risk 
industries and is also increasing its focus on organizations involved 
in training vulnerable, limited English speaking and other hard-toreach 
workers to assure they receive the training they need to be safe and 
healthy in the workplace. For example, just last week, Purdue 
University in West Lafayette, Indiana was awarded a Susan Harwood grant 
to provide training to farm owners, farm operators, and farm workers 
(including youth) on safety and health hazards related to grain storage 
and handling. This training is critical as we have seen a recent 
increase in grain engulfment fatalities. Tragically, several of these 
incidents have involved teenagers. We are pleased that business 
associations, unions and community groups have joined us in this 
Whistleblower Protection
    The creators of the OSH Act understood that OSHA inspectors would 
not be able to be at every workplace every day, so the Act was 
constructed to encourage worker participation and to rely heavily on 
workers to act as OSHA's ``eyes and ears'' in identifying hazards at 
their workplaces. If employees fear that they will lose their jobs or 
be otherwise retaliated against for actively participating in safety 
and health activities, they are not likely to do so. Achieving the 
Secretary of Labor's goal of ``Good Jobs for Everyone'' includes 
strengthening workers' voices in their workplaces. Without robust job 
protections, these voices may be silenced.
    It is notable that since the OSH Act was passed in 1970, Congress 
has passed, and added to OSHA's enforcement responsibilities, 20 
additional whistleblower laws to protect employees who report 
violations of various trucking, airline, nuclear power, pipeline, 
environmental, rail, mass transit, maritime safety, consumer product 
safety, and securities laws. In just the past year, four additional 
whistleblower laws were added to OSHA's enforcement responsibilities. 
Despite this increase in OSHA's statutory load, the staff charged with 
enforcing those laws did not grow significantly until FY 2010 when 25 
whistleblower investigators were authorized. In just the past year, 
however, four additional whistleblower laws were added to OSHA's 
enforcement responsibility. These new responsibilities are stretching 
OSHA's whistleblower resources to the breaking point. We are committed 
to doing the most that we can with our strained whistleblower 
resources. That is why I directed a top-to-bottom review of the program 
to ensure that we are as efficient and effective as possible and that 
we address the criticism of the whistleblower program raised in reports 
by the Government Accountability Office and the Department's Inspector 
General. We are happy to report to you that OSHA has made great strides 
in improving the performance of this critical program.
    As a result, we will be moving our whistleblower protection program 
from our Directorate of Enforcement Programs, to report directly to my 
office. We are also considering several reorganization plans in the 
field. We have recently revised the whistleblower protection manual. 
Just two weeks ago, we conducted a national whistleblower conference 
that included whistleblower investigators from federal as well as state 
plan states, along with regional and national office attorneys who work 
on this issue.
Regulatory Process and the Costs of Regulation
    OSHA's mission is to ensure that everyone who goes to work is able 
to return home safely at the end of their shift. One of the primary 
means Congress has given to OSHA to accomplish this task is to issue 
common sense standards and regulations to protect workers from 
workplace hazards. OSHA's common sense standards have made working 
conditions in America today far safer than 40 years ago when the agency 
was created, without slowing the growth of American business.
    Developing OSHA regulations is a complex process that often 
involves sophisticated risk assessments as well as detailed economic 
and technological feasibility analyses. These complicated analyses are 
critical to ensuring that OSHA's regulations effectively protect 
workers and at the same time make sense for the regulated community 
that will be charged with implementing the regulations.
    The regulatory process also includes multiple points where the 
agency receives comments from stakeholders such as large and small 
businesses, professional organizations, trade associations as well as 
workers and labor representatives. OSHA issues very few standards and 
all are the product of years of careful work and consultation with all 
stakeholders. Over the past 15 years, OSHA has, on average, issued only 
a few major standards each year, with some periods in which no major 
standards have been issued.
    In fact, over the past year, OSHA has issued only two major 
standards: one protecting workers from hazards associated with cranes 
and derricks, and another standard to protect shipyard workers. Both 
took years to develop. Implementation of these standards is proceeding 
very smoothly with great cooperation from workers and the regulated 
    Our commitment to the Administration's initiative to ensure smart 
regulations is already evident. OSHA recently announced a final rule 
that will remove over 1.9 million annual hours of paperwork burdens on 
employers and save more than $40 million in annual costs. Businesses 
will no longer be saddled with the obligation to fill out unnecessary 
government forms, meaning that their employees will have more time to 
be productive and do their real work.
    One of the next standards that OSHA will issue is a revision of our 
Hazard Communication Standard to align with the Globally Harmonized 
System (GHS) of Classification and Labeling of Chemicals. Aligning 
OSHA's Hazard Communication Standard with the GHS will not only improve 
chemical hazard information provided to workers, but also make it much 
easier for American chemical manufacturers to sell their products 
around the world. In addition, over time, employers, especially in 
small businesses, will find it easier to train their employees using a 
uniform system of labeling, saving them both time and money.
    I am confident that our lengthy, careful and methodical regulatory 
process, with its robust opportunities for stakeholder input and 
comment, will produce a common sense and successful Injury and Illness 
Prevention Program proposal and standard. I have this confidence 
because that is what the history of OSHA's regulatory process 
demonstrates. This Subcommittee and our regulated community should look 
to our past to see how OSHA standards can enhance American economic 
competitiveness, not hinder it. OSHA standards don't just prevent 
worker injuries and illnesses, but they also drive technological 
innovation, making industries more competitive.
    In fact, there is also clear evidence that both regulated 
industries and the agency itself generally overestimate the cost of new 
OSHA standards. Congress' Office of Technology Assessment (OTA), 
comparing the predicted and actual costs of eight OSHA regulations, 
found that in almost all cases, ``industries that were most affected 
achieved compliance straightforwardly, and largely avoided the 
destructive economic effects'' that they had predicted.\3\
    \3\ Office of Technology Assessment, Gauging Control Technology and 
Regulatory Impacts in Occupational Safety and Health: An Appraisal of 
OSHA's Analytic Approach September 1995.
    For example:
     In 1974, OSHA issued a regulation to reduce worker 
exposure to vinyl chloride, a chemical used in making plastic for 
hundreds of products. Vinyl Chloride was proven to cause a rare liver 
cancer among exposed workers. Plastics manufacturers told OSHA that a 
new standard would kill as many as 2.2 million jobs.\4\ Two years after 
the 1974 vinyl chloride regulation went into effect, Chemical Week 
described manufacturers rushing to ``improve existing operations and 
build new units'' to meet increased market demand.\5\ The Congressional 
study looked at the data and confirmed not only that the vinyl industry 
spent only a quarter of OSHA's original estimate to comply with the 
standard, but that the new technology designed to meet the standard 
actually increased productivity.
    \4\ Brody, J Vinyl Chloride Exposure Limit Is Opposed by Plastics 
Industry. New York Times June 6, 1974.
    \5\ PVC rolls out of jeopardy, into jubilation. Chemical Week. 
September 15, 1976:34.
     In 1984, OSHA implemented its ethylene oxide standard to 
reduce workers' exposure to this cancer-causing gas used for 
sterilizing equipment in hospitals and other health care facilities. 
OSHA's new rule required employers to ventilate work areas and monitor 
workers' exposure levels--changes predicted to add modest costs while 
ensuring enormous protections for workers. Complying with the ethylene 
oxide rule also led U.S. equipment manufacturers to produce innovative 
technology and hasten hospital modernization.
    We have heard from many employer groups and labor organizations, 
including the U.S. Chamber of Commerce and the American Chemistry 
Council, that OSHA must update its chemical Permissible Exposure Limits 
(PELs). These are standards adopted at OSHA's birth, many of which are 
based on science from the 1950's and 1960's, and do not reflect updated 
scientific research on cancer and other chronic health effects. I would 
like to join hands with business and labor and tackle this project, but 
our complicated regulatory process makes progress difficult. I would 
like to work with this Subcommittee, as well as the regulated 
community, to find creative ways to address the PELs challenge.
Outreach to Stakeholders
    One of the most important parts of the regulatory process is OSHA's 
extensive consultation with all affected parties, including large and 
small business, workers and labor organizations and professional 
workplace safety associations. Although the Occupational Safety and 
Health Act, the Administrative Procedures Act, and other laws such as 
the Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA) require a certain level of 
public input, OSHA routinely goes above and beyond these requirements.
    We enthusiastically welcome public input. OSHA's first priority is 
to issue standards that protect workers. But it makes absolutely no 
sense to issue standards that don't work or that don't make sense to 
businesses and workers in a real workplace. Getting input from workers 
and businesses, based on their experience, about what works and what 
doesn't work is not only essential to issuing good, common sense rules, 
but also welcomed by this agency.
    Our efforts are consistent with the Administration's commitment in 
E.O. 13563 to have as transparent and inclusive a regulatory process as 
possible. I began this commitment even prior to the issuance of the 
Executive Order. The genesis of our current regulatory agenda is the 
extensive public outreach I did when I first came on the job. In fact, 
one of the first actions I implemented when becoming Assistant 
Secretary was to hold an all day stakeholder event, OSHA Listens, to 
obtain information from the public on key issues facing the agency. We 
heard from small and large businesses, trade associations, unions and 
workers, victims' families, advocacy organizations and safety and 
health professionals. We learned a lot from this session and many of 
our Regions are holding similar sessions. We will continue all of these 
outreach efforts and add more as appropriate.
    OSHA has continued to go far beyond the required steps of the 
rulemaking process. Beyond the comment periods and hearings required by 
law, OSHA generally adds a number of other options to receive public 
input including stakeholder meetings and webchats. In addition, OSHA 
leadership and OSHA technical experts travel to numerous meetings of 
business associations, unions and public health organizations to 
discuss our regulatory activities and gather input. For example, OSHA 
has held five stakeholder meetings around the country on its Injury and 
Illness Prevention Programs initiative. OSHA has also held three 
stakeholder meetings, including its first ever virtual stakeholder 
meeting by a webinar, and convened an expert panel on a potential 
combustible dust standard. OSHA held a stakeholder meeting on a 
potential infectious disease standard and regularly holds webinars on 
its regulatory agenda. We have also done public outreach on better ways 
to protect workers against hearing loss and we are planning a 
stakeholder meeting on this subject next month.
    OSHA also uses a variety of other mechanisms such as its four 
formal advisory committees and various informal meetings with groups 
such as its Alliance Program Construction Roundtable meetings to 
constantly seek input from labor and industry on a variety of safety 
and health issues.
    Our nation has a long history of treating workplace safety as a 
bipartisan issue. The OSH Act was the product of a bipartisan 
compromise. It was signed into law by President Richard Nixon on 
December 29, 1970, who called it ``probably one of the most important 
pieces of legislation, from the standpoint of the 55 million people who 
will be covered by it ever passed by the Congress of the United States, 
because it involves their lives.'' Bearing witness at that bill signing 
were both Democratic and Republican Congressional leaders, as well as 
the Presidents of the National Association of Manufacturers and the 
Chamber of Commerce and labor leaders.
    Now covering 107 million workers, the Act is no less important 
today, 40 years later. I am very excited about the initiatives that 
this Administration has taken to fulfill the goals of this law and to 
protect our most valuable national resource--our workers.
    I want to thank you again for inviting me to this hearing to 
describe to you the efforts we are taking to protect American workers 
and to get your input about how we can do this even more effectively. I 
look forward to your questions at this hearing and I am also willing to 
come to meet with you or your staff personally to discuss any of our 
initiatives in more detail.
    Chairman Walberg. I now recognize myself for 5 minutes of 
questioning. I want to thank you, first, for your responses to 
congressional letters, that have been bipartisan in nature, 
coming to you concerning the roofing directive. It is a 
bipartisan issue, with contractors all across the Nation 
expressing some concerns and reservations. OSHA has delayed the 
effective date of the directive, and recently issued a 
memorandum suggesting that the directive will not fully be in 
place until March 2012. What OSHA has not done is change the 
substance of the directive. Stakeholders have met with OSHA 
personnel to express concern that the directive is not 
protective of worker safety and health.
    Our second panel will have a witness who is concerned that 
the new policy is less protective of worker safety and health. 
So Dr. Michaels, will you commit to holding a broad stakeholder 
meeting in order to really hear the concerns being expressed 
and seriously take into consideration making changes to that 
    Mr. Michaels. Mr. Chairman, we very much value the input of 
stakeholders, and we meet regularly with the stakeholders. Some 
stakeholders are particularly effective. We have met with 
representatives of the National Association of Home Builders 
numerous times over the last few weeks. And we have done that 
for a long period of time because we think it is very important 
to get their input. What we did was actually not put out a new 
directive, we rescinded a directive essentially that went into 
effect--a policy that went into effect in 1995, a temporary 
policy that exempted certain operations from fall protection. 
And this fall protection, which was the new standard that went 
into effect in 1994, covers all commercial roofing, and it 
covers much residential roofing, roofings with steep pitched 
roofs, anything 9 and 12 or above. So much of the industry is 
already covered by our old standard. What this does is this 
just makes it uniform across the board. Many States never 
changed their policy. And we heard, as Ms. Woolsey said, the 
home builders actually asked us to rescind this directive. We 
have a labor-management advisory committee which asked us to 
rescind this directive. So we have listened to our 
stakeholders. We will continue to work with them to deal with 
issues of clarification, to ensure that information is getting 
    Chairman Walberg. But it doesn't seem to be getting out to 
the ones most intimately acquainted with and affected by it. 
And the concerns that we receive are saying that, number one, 
their concerns aren't being addressed. They are not being 
heard. And they would like the opportunity for more and lengthy 
input into the process, with best practices.
    Mr. Michaels. We are eager to work with them. As you know, 
we have given--through our Harwood program, we have provided 
over a million dollars in funding to the National Association 
of Home Builders, to the Roofing Contractors Association, to 
other groups, to get information out about safe work practices. 
And we will continue to do that. And we think that will get the 
information out. Whenever there is a change in policy, it 
always takes some time. So we have delayed this, and we have 
changed the enforcement policy. So we think we have done plenty 
to get there.
    Chairman Walberg. Well, I would hope that there would be 
further opportunity, due to the delay, to listen more fully to 
stakeholders, because I am not hearing that they are satisfied, 
that they feel that the Department has truly heard the best 
case practices. And I tend to think that as we see ourselves as 
partners, understanding that they are in the field desiring the 
safety, but also in the economic situation, that we address 
those concerns as well.
    Let me jump on, in the limited time I have here. Many 
members of the subcommittee sent you a letter asking that OSHA 
issue an advanced notice of proposed rulemaking addressing the 
changes envisioned to the silica standard. Have you taken this 
under consideration? How is the Agency going to proceed on it?
    Mr. Michaels. Well, we have been working on preparing a 
silica standard for 10 years, as you noted. Actually, the Labor 
Department has been looking at this issue for quite a long 
time, because our silica standard is dreadfully obsolete.
    Chairman Walberg. But it seems to be working. Silicosis has 
gone down. You can be hit by lightning far more opportune than 
you can with silicosis.
    Mr. Michaels. I am not sure that is the case. There is 
plenty of silicosis, but more importantly, far more deaths 
occur from silica-related lung cancer than from silicosis. So 
we feel it is an important issue to address.
    We have heard your concerns, though, about getting the 
information, the scientific data on which any proposal is 
based, out to the public. And when we issue a proposal, we will 
ensure that all the information, all the scientific information 
that we use in our risk assessment, et cetera, is out there so 
we can have a really robust discussion with experts from all 
different industries to ensure we are using the best science.
    Chairman Walberg. I appreciate that. And in our letter we 
did request listing of the standards that you are using to make 
this proposal, make the standard. When can we expect to receive 
    Mr. Michaels. You know, as I said, we have a very lengthy 
standard-setting process. So we go through a tremendous amount 
of internal work evaluating all the information that has been 
gathered before we send it out. And so I hope soon to get that 
out. When we do get it out, though, it will contain all these 
studies that you have asked for, or access to them, so that can 
be looked at by experts.
    Chairman Walberg. That will certainly be a help to us so we 
are talking on the same page.
    Mr. Michaels. Yes.
    Chairman Walberg. My time has expired. I recognize the 
gentlelady from California, Ranking Member Woolsey.
    Ms. Woolsey. Thank you. Thank you, Mr. Secretary, for being 
here. The House Appropriations Committee, as you know, released 
a draft bill. And you know the release of that draft bill means 
that this might be the only hearing on these issues right here 
before us today. Because that draft could become final, could 
come to the floor, boom, with this, today, being all the 
attention we pay to it. So that makes asking you these 
questions so important.
    So now, because the bill would block funding for the 
development of an injury or illness prevention rule, preclude 
funding for the guidance of roof falls, and obstruct OSHA from 
modifying, by just adding a box to check on an injury and 
illness log, which would identify cumulative trauma injuries, 
your opinion--does OSHA support these riders? Who will benefit, 
and who will pay the price if these provisions are enacted?
    Mr. Michaels. Look, OSHA is very much committed to 
finishing those standards. So we would obviously not like to 
see any provision that stops us from moving forward on 
developing an injury and illness prevention program, which I 
think is something that is important. It has been embraced by 
thousands of employers across the country, and shown very 
clearly to not just reduce injury rates and fatality rates, but 
in fact save employers money by reducing workers compensation 
costs and increasing productivity.
    You know, there is a toy maker in Massachusetts who is in 
our VPP program that talks about their program. And they said 
if it weren't for our program, we would be in China now. So I 
recently spoke at a meeting of 3,000 participants in the VPP 
program, all of whom have very robust illness and injury 
prevention programs. These were representatives of these 
companies. I said, how many people here think this is a job 
killer? And not a single person raised their hand. I said, how 
many people think this has saved jobs in the United States? 
Virtually every one of them raised their hands. So we think 
this is a very important program, and we hope to move it 
    Ms. Woolsey. Jobs and lives, right?
    Mr. Michaels. Exactly. It saves jobs and it saves lives.
    Ms. Woolsey. So one of the successes OSHA has had is the 
crane and derricks standard. I think we all remember, I mean it 
is actually in our lifetime, while we were Members of Congress, 
when the cranes and derricks, in New York City were just 
collapsing and causing so much havoc and damage to the workers, 
to the people who were around them, and also in Las Vegas 
because of employer negligence.
    Can you give us some good news about the difference that 
that standard is making? Because I don't read about that now.
    Mr. Michaels. You know, OSHA takes our lookbacks very 
seriously. We want to evaluate the impact of our standards. I 
think there is anecdotal evidence that that standard is doing 
well, but I certainly wouldn't go to the bank on that, because 
we haven't really looked at it. I see the same things you do, 
which is we haven't seen some of the big accidents. But that 
doesn't mean it is working. We have done lookbacks on numerous 
other standards. You know, the cranes and derricks standard 
just has gone into effect. It is too early to evaluate it. But 
when we have gone back and looked at the cotton dust standard, 
for example, it virtually eliminated byssinosis. I talked about 
the grain explosion standards. I used to work in a hospital. 
For 13 years I worked in a hospital when hepatitis B was the 
scourge of hospital workers. As a result of the OSHA standard 
and the work that is done in hospitals around protecting 
workers from sharps, there are a handful of new cases of 
hepatitis B in hospital workers in the United States every 
year. There were 19,000 a year before OSHA did this. So we know 
our standards are effective.
    I can't tell you cranes and derricks is effective. I hope 
to be able to come back to you in a couple years and say we 
have evaluated it. And we will evaluate it. We take this stuff 
very seriously.
    Ms. Woolsey. Thank you for not making an assumption. But 
you know, just as a person in this country, you used to read 
almost every other week about some huge accident, serious 
accident. And just by bringing to the attention of the owners 
that they had to protect their operators, it has made a big 
difference--from my opinion, not scientifically. Okay, the 
Susan Harwood Safety Training Program, which would be zeroed 
out, how important is that training program?
    Mr. Michaels. That is a very important program because it 
doesn't duplicate any other work that we do. That gets funding 
out to employers, to unions, to community groups that train 
front-line workers, not supervisors or officials in labor 
unions or anything. It trains workers about how to work safely, 
especially hard-to-reach workers. That is why we have given 
money out to all sorts of organizations, including the home 
builders, to say let's get information out to workers who need 
    Ms. Woolsey. So how does it get out there? On paper, or 
does somebody go out and actually show them how to lift?
    Mr. Michaels. Yeah. And we have training programs that 
develop materials, and a lot of train the trainer programs, so 
the impact is really magnified.
    Ms. Woolsey. Thank you, Mr. Chairman.
    Chairman Walberg. I thank the gentlelady. I turn now to 
recognize the chairman of the full committee, the gentleman 
from Minnesota, Mr. Kline.
    Chairman Kline. Thank you, Mr. Chairman. Thanks for holding 
the hearing. Thank you, Dr. Michaels, Director Michaels, 
Assistant Secretary Michaels. We really are very pleased that 
you could find the time to come here today and give your 
testimony and respond to our questions. We are very 
    In our oversight role and in maintaining contact with what 
you are doing, as the chairman said, we frequently write 
letters. We ask for information. I understand that you have 
been, and your organization, OSHA, has been pretty responsive, 
sometimes a month or two late, but it is mostly coming.
    In August, Mrs. Noem from this committee and I wrote you a 
letter asking for clarification to the interim inspection 
procedures during communication tower construction activities. 
And we wrote you that letter because there is some confusion 
out there, because the directive provides standards for 
hoisting workers while towers are under construction, but 
doesn't address the issue when they are doing maintenance. So 
there is confusion out there. We would like to get a response 
from you. And so have you got the letter? Are you going to 
respond? Where does that stand?
    Mr. Michaels. Yes. Let me apologize for not getting that 
back to you. It is a complex issue. We have gotten the letter. 
We recognize the issues you have raised. We have actually two 
directorates. It is both an issue of construction and 
enforcement programs that are working on pulling this together. 
And we will get back to you and Congresswoman Noem very soon.
    Chairman Kline. Well, I would appreciate that. But you can 
see the--I mean as you said, it is a complex issue, but this is 
causing confusion when we need to be clarifying, simplifying, 
and streamlining, and making it easier, not making it more 
complicated, not putting more uncertainty in. So I am sure that 
wasn't your intent, but I would say that it would be worth 
somebody's effort inside your Agency to look at how that comes 
out, so you don't have that sort of conflicting message going 
    Speaking of conflicting messages, of the OSH Act's 13 
objectives, three are focused on compliance assistance programs 
such as the Voluntary Protection Program. And so here again we 
have some confusion. On February 14th of this year, you stated 
that OSHA is, quote, no longer proposing alternative funding 
for the Voluntary Protection Program, and that, quote, OSHA 
will continue to fund VPP out of the Federal compliance 
assistance budget activity. Yet in June, Deputy Assistant 
Secretary of Labor Jordan Barab, with us here also today, 
stated that a fee-based program for VPP is still on the table. 
Once again, you have got inconsistency and some concern that we 
are hearing from stakeholders. Is OSHA still considering 
alternative funding?
    Mr. Michaels. No. I suspect that was a misquote. We thought 
that given the difficulties of the Federal budget and the 
obvious--the future of Federal spending in all areas, which we 
all know is going to be lessened, that a program as important 
as VPP should have an independent funding stream so it doesn't 
have to worry about the exigencies of Federal budgeting and the 
competition within the OSHA budget of giving money to 
enforcement and focusing on the worst employers versus helping 
out the best employers.
    So one of the issues that had been on the table was this 
idea of essentially an independent funding source, similar to 
the Prescription Drug User Fee Act, for example, where 
participants support the program, because they see terrific 
savings as a result of that program. You know, we have other 
fee-based programs within OSHA. We have a nationally recognized 
technical laboratory program that is supported that way. But we 
have heard from the VPP members. They don't want to see that. 
They want us to continue to run the program and to fund it 
within our constraints, and we will continue to do that. I have 
committed to that, and they know that I strongly support the 
    Chairman Kline. Okay. Thank you for the clarification. And 
again, I think it is really important, particularly in these 
economic times, we have so many people out of work, historic 
levels of unemployment, and confusion and uncertainty out 
there. And we would like employers to have some certainty and 
some confidence so they can take risks and take steps and get 
people back to work. When we add more uncertainty and more 
complexity and more confusion, it makes that more difficult.
    So I am quite confident that you understand that. Just when 
you are administering large bureaucracies, sometimes things, as 
you say, you get misquoted, or one side of the bureaucracy is 
not talking to the other. It just seems really important in 
these times that we--that you in OSHA make every effort to be 
as consistent as possible, and frankly, to put as few new 
pieces of regulation in place as possible. We want to keep 
people safe. But things like voluntary efforts and your people 
working with employers so that they can improve their safety, 
and not, frankly, be in terror when OSHA comes. I would hope 
that OSHA will really step up to try to work with employers, 
reduce the uncertainty that is out there, and help them have 
confidence and make decisions going forward.
    Again, thank you very much for your time and being with us 
today. Mr. Chairman, my time has expired.
    Chairman Walberg. I thank the gentleman. I now recognize 
the gentleman from New York, Mr. Bishop.
    Mr. Bishop. Thank you very much, Mr. Chairman. Thank you 
for holding this hearing. And to Secretary Michaels, thank you 
for being here.
    I want to sort of broaden the scope of this a bit. We all 
recognize that we have a jobs crisis in this country. And we 
have conflicting visions on how to address that crisis. It is 
very clear to me that our friends on the other side of the 
aisle have determined that one of the root causes of that 
crisis and one of the reasons that our recovery has been 
anemic, as it has been, is that we are overregulated. I think 
one of the best ways to solve a problem is to make sure you 
understand it. And the best way to make sure you understand it 
is to have actual data.
    I read a piece yesterday that was written by a man named 
Bruce Bartlett, former senior economic adviser to President 
Reagan, former senior economic adviser to President George H.W. 
Bush, served on the staff of Jack Kemp, served on the staff of 
Ron Paul, obviously an unabashed liberal. He cited statistics 
from the Bureau of Labor Statistics in which employers were 
queried as to why they laid people off. In 2008, out of 1.5 
million layoffs, 5,500 of them were attributed to government 
regulation. This is in the last year of the Bush 
administration. That number represents four-tenths of 1 percent 
of all layoffs. By the way, lack of demand, 516,000 layoffs. In 
2009, out of 2,100 layoffs, 48,800 of them were attributed to 
government regulation. This is by the employers themselves. 
Two-tenths of 1 percent of all layoffs related to excessive 
regulation. Lack of demand, 824,000 layoffs. 2010, two-tenths 
of 1 percent attributed to a lack of regulation. 2011, first 
half of the year, two-tenths of 1 percent.
    So do we have an overregulatory problem? I think it is 
debatable at best. And I think what we really need to do is 
focus on the core issue of our economy, which is clearly lack 
of demand.
    Let me go on. Small Business Majority surveyed 1,257 
business owners to name the two biggest problems they faced. 
Only 13 percent listed government regulation as one of them. 
Almost half said their biggest problem was lack of customers 
and sales. Wall Street Journal survey of business economists 
found, quote, the main reason U.S. companies are reluctant to 
step-up hiring is scant demand rather than uncertainty over 
government policies, according to a majority of economists, 
close quote. That is the Wall Street Journal.
    In August, McClatchy Newspapers canvassed small businesses, 
asking them if regulation was a big problem. They could find no 
evidence that this was the case. None of the business owners--
this is a quote--complained about regulation in particular 
industries, and most seemed to welcome it. That is a quote.
    So we have a jobs problem. No reasonable person would argue 
with that. Our friends on the other side of the aisle say that 
we should confront that problem with three remedies: one, 
reduce government spending; the second, cut corporate and 
personal income taxes; and the third, reduce regulation.
    This hearing is part of the majority's thesis that 
regulation is the problem. Majority Leader Cantor has issued a 
memorandum in which he has outlined the 10 most egregious job-
killing regulations, and has outlined a legislative agenda that 
will deal with those job-killing regulations. And I think we 
have to ask ourselves the very real question, is this a 
solution in search of a problem? Are there cases in this 
economy where we are overregulated? Absolutely. But we could 
solve every regulatory problem we have today, and unless we 
increase demand tomorrow, we are going to have a serious jobs 
    So I would ask--I know that we are the Committee on 
Workforce Protections, and I know that we should be focusing on 
workforce protections, and OSHA is an element of our ability to 
do that--but I would hope that in the big picture, the 30,000-
foot view, we will be much more focused on increasing demand 
than we are on these issues that are important, but peripheral 
to the central case.
    With that, I yield back the balance of my time. I am sorry, 
Mr. Chairman. I ask unanimous consent to enter into the record 
the article by Mr. Bartlett that I cited.
    Chairman Walberg. Without objection, it will be entered.
    Mr. Bishop. Thank you very much.
    [The information follows:]

    Chairman Walberg. Hearing none. I thank the gentleman, and 
I think I would state that we are certainly committed to 
increasing demand, increasing the economy, building jobs in the 
process. It is just getting to that common consensus. And we 
look forward to working that out.
    At this point I recognize the gentleman from Indiana, Dr. 
    Mr. Bucshon. Thank you, Mr. Chairman. I am a thoracic 
surgeon, so I want to focus a little bit on what you said 
earlier about as it relates to silica dust. I was curious with 
your comment about the silica dust-related lung cancer, because 
I have been a thoracic surgeon for 15 years, and done a lot of 
lung cancer surgery, and I haven't seen one patient that has 
got it from silica dust. According to the American Cancer 
Society, the number one causes are cigarette smoking, second-
hand exposure, asbestos exposure as it relates to mesothelioma, 
which is actually not lung cancer. And occupational exposure is 
not on the top of that list that I am aware of. And I could be 
wrong. But silica dust isn't one of the top things.
    So I don't like it when people use buzz words to try to get 
people's attention, and cancer is one of those. So I would 
like--do you have scientific data to show that the increase of 
lung cancer is, first of all, caused by silica dust exposure; 
second of all, that it is increasing? Because I think that is 
not correct.
    Mr. Michaels. Dr. Bucshon, I am glad you asked me that 
question. I am an epidemiologist. And as you know, and I know 
it, if you look at any individual case of cancer, of lung 
cancer, you can't identify the specific cause of that. You see 
lung cancer among smokers and nonsmokers.
    Mr. Bucshon. There is second-hand exposure. And as you 
probably know, maybe 5 to 10 percent of lung cancer is 
unrelated to cigarette exposure; that is correct.
    Mr. Michaels. So from any individual case you can't 
actually make the conclusion what caused that. And so you have 
to look at epidemiology. And there are a number of studies that 
have been done all over the world that have concluded that 
exposure to silica dust increases the risk of lung cancer, 
irrespective of exposure to tobacco.
    Mr. Bucshon. Excuse me. Can you submit the best study that 
you know to the committee so that I can review that?
    Mr. Michaels. Certainly.
    Mr. Bucshon. Because I would be interested to see that. 
Because again, if you look at the American Cancer Society, it 
is not on the top of their list.
    Mr. Michaels. But that is the function of the number of 
people who are exposed as well as the relative risk. The 
studies that are done on silica are really at this point 
dispositive. In fact, the International Agency for Research on 
Cancer put together a panel of experts from around the world. 
They reviewed the data and said there is an affirmative 
relationship between silica exposure and lung cancer. And they 
recently pulled together another group and reaffirmed that 
    Mr. Bucshon. So I would ask you, if you are aware of those 
studies then, are those groups singled out to people that have 
no cigarette exposure, have no second-hand smoke exposure? 
Because as you know, I mean as a scientist, especially as an 
epidemiologist, it can be difficult to single out particular 
    But my point is this, is that if we are going to use 
language like cancer--because the American people hear that and 
they think oh, my goodness, cancer--then I would like to see 
the data released, and I would like the American people to know 
that, yeah, you know, silica dust exposure, you know, could be 
in the mix. But according to the American Cancer Society, it is 
not even on the list. And as a thoracic surgeon in 15 years of 
practice, I never saw one person that I did lung cancer surgery 
on that the cause of cancer was silica dust exposure.
    I am not disputing, no one is disputing exposure to this 
type of dust is bad for your lungs. That is not the question. 
The question is if you are going to come out with regulations 
and you are going to base it on something like the increased 
incidence of cancer, then I want to see the data and the facts, 
because I don't think they are correct.
    Mr. Michaels. I will provide them. But getting back to 
Chairman Walberg's question, we will also, obviously, provide 
those--when we issue a proposal, we will provide them publicly 
as well. You know, they are in the public scientific 
    Mr. Bucshon. Now, when you come up with a proposed rule, 
with a rule, I see other areas here where you have been asked 
for scientific data and haven't provided that. There was 
another area in my briefing here. But the question is, when do 
you provide the data? After you have released--after you have 
done the rule? Or when you do these type of things, do you 
normally show the science up ahead of time and let third 
parties review that and assess what that shows, or are you just 
going to, when you release it, are you going to say here is the 
science and not give anybody a chance to dispute it?
    Mr. Michaels. Oh, no, we welcome that discussion. In fact, 
the way the process is, we will propose something with 
extensive--you know, thousands of pages of attached material 
available on the Web, and then hold a series of public 
meetings. And we have committed to one on silica specifically 
with the scientific experts to discuss this in public. So there 
is real debate and cross-examination across the board to really 
get that science under discussion and illuminated to the whole 
    At that point, we will move forward and determine what 
should be in a final rule. So it is a very robust, open process 
to get that out.
    Mr. Bucshon. My time has expired, but I would like to see 
the studies that show that in isolation, silica dust exposure 
causes lung cancer.
    Mr. Michaels. I will be happy to provide you with all the 
studies that we have used.
    Mr. Bucshon. Thank you.
    Chairman Walberg. We look forward to that. Thank you for 
the questioning.
    Now we turn to the gentleman from New Jersey, the State 
that now knows their Governor is not running for anything else, 
Mr. Payne.
    Mr. Payne. That is right. We are very lucky.
    Chairman Walberg. I assumed you would agree with me, right?
    Mr. Payne. As a matter of fact, you know, I hear about all 
of these job-killing movements. Believe it or not, New Jersey 
is one of the only States in the Union that requires extra 
caution when we deal with silica particles. As a matter of 
fact, in New Jersey a spray must go over the process to prevent 
the toxins from being released. And California is the only 
other State in the Union. And so I guess if it was so bad, 
Governor Christie would have moved to abolish it. So I kind of 
question, and I am certainly not a physician, but I did read 
somewhere that the IARC classified carcinogens as a toxin. And 
I don't know if, Dr. Michaels, could you confirm that or not?
    Mr. Michaels. Yes. The International Agency for Research on 
Cancer, as well as the National Toxicology Program in the 
United States, have both categorized silica as a carcinogen; in 
other words, that it causes lung cancer.
    Mr. Payne. That is what I thought I heard. The question 
about these job-killing proposals, I have really not heard so 
much in the past year or so about any regulation that goes to 
protect the individual, the person. And I thought that a 
philosophy was individuals were important. But everything I 
have seen and heard is that let's expose the individual to more 
dangers. I think that the business schools are missing 
something. I didn't go to business school. But I have never 
heard so much about a lack of confidence than I have heard in 
the last year. I mean, businesses are doing bad because of a 
lack of confidence.
    Well, you know, I used to punch a clock. I wasn't 
innovative, I wasn't creative, I wasn't bold, so I punched a 
clock. I didn't like the job, but I did it. I got there on 
time, left when I was supposed to. You know, the business guy 
was the bold guy. You know, kids in my class who were most 
likely to succeed, they went into business. Evidently, 
something is happening in business schools, because I have not 
heard anyone say, ``Don't you know I don't have a guarantee 
that my business is going to be successful?''
    I don't know, I watched football, the NFL, they have these 
drop-back uniforms. You know, they will put out a uniform from 
the 1950s or 1930s, and even the colleges are doing it to just 
kind of spur interest, I guess. But I guess we need to coin a 
phrase called the drop-back regulations. I mean let's go back 
to the robber barons. Let's go when they used to make sausage, 
and if someone fell in it, well, just keep the grinder going. 
It might even change the taste.
    The fact that people are so committed to saying that 
anything that government does and anything that is a regulation 
is a job killer. And I think that we are really going down a 
wrong trend if we are going to go back to the days when there 
were no regulations. Once they said that government is best 
which governs least. And that is good if everybody was honest 
and good by nature. But I am just amazed at how many 
regulations are being questioned when we have made this country 
great by virtue of having safety protections for our workers.
    Now, there are probably some things that shouldn't be--that 
should be eliminated. But if we start increasing the amount of 
mercury allowed in water, we don't worry about the ozone layer, 
we aren't concerned about food safety, I mean who ever thought 
a cantaloupe could kill dozens of people? These are things that 
I get concerned about as we continually hammer home the fact 
that it is regulations that are killing our job incentives.
    So I guess my time has expired. I am sure I am not going to 
get any more. So I yield back.
    Chairman Walberg. You are right. But not anything personal. 
Now I recognize the member from Indiana, Mr. Rokita.
    Mr. Rokita. Thank you, Mr. Chairman. And thank you, Mr. 
Michaels, for being here today.
    I know it has been discussed already, but I too am very 
interested to get responses to the letters that I have written, 
that we have written as a group. And even if it is a courtesy 
response, which would be too late at this point, okay, a 
courtesy response to say, hey, we are looking at it. We 
understand the issue, and we are understaffed, we don't have 
enough hundred thousand dollar employees a year to get to this.
    But, you know, we do represent 600,000 people or more 
apiece. And if this is to be the free Republic that Congressman 
Payne talks about, with due respect, I say the reason this 
country is great, however, is because entrepreneurs have been 
allowed to take risks for profit, that has been allowed to hire 
people, and a free enterprise system that has raised the 
condition, the best system, albeit with flaws, but the system 
that has been proven throughout history to be the best one to 
raise the condition of all men, not regulations about 
    But that respect issue that I have, putting that aside for 
just a minute, I read your testimony last night, and you cited 
several examples--you may have repeated them here, and I 
apologize for not hearing them in person--but you cited several 
examples of successful regulations.
    I used to run a bureaucracy. We promulgated regulations, 
too. And we always made it a point to take in stakeholder input 
before we put any pen to paper. We would have groups come in 
and--from the industry. Because not everyone in my agency had 
experience in the industry over which they regulated. But we 
made sure that we got that input at the beginning, before the 
regulation was even put to paper, the proposed one, and 
throughout the process. And I would say that in your testimony, 
that regulations you cite as being successful had that same 
kind of stakeholder input. Push back on me if you don't think 
that happened, but I think it did. And I think the regulations 
that we are talking about today were not written in a vacuum. 
But I sense that OSHA has appeared to circle the wagons on 
several key issues, some of them that have been brought up here 
today, and not taken in the broader input on the many 
directives it has initiated.
    And I just wondered if you would respond to that. Or if you 
think there was robust stakeholder input, I would like to know 
how, specific examples.
    Mr. Michaels. We certainly had stakeholder input on many of 
the issues that we are moving forward on regulation. We greatly 
value stakeholder input. In fact, one of the first things I did 
after I was confirmed by the Senate and was sworn in was to 
announce a full-day meeting called OSHA Listens, which was open 
to everybody. And everybody from, you know, the unions, to the 
Chamber of Commerce, National Association of Manufacturers, 
community groups, professors, came, and I spent a whole day 
listening just to their input to say, what should we do?
    Mr. Rokita. How many of those days have you had?
    Mr. Michaels. I have had one of those.
    Mr. Rokita. How long have you been the appointed head of 
this Agency?
    Mr. Michaels. About 18 months, 19 months. But no, let me 
say when we move to injury and illness prevention programs, we 
held five stakeholder meetings, and not just in Washington. We 
took them around the country. California already has an injury 
and illness prevention program standard. So we went out to 
California and had a public meeting there. When we think about 
doing new standards, we obviously choose the ways to get 
stakeholder input based on many different things: various 
stakeholders involved, how important it is, the economic cost 
of it. So we----
    Mr. Rokita. With respect, how do you weight stakeholder 
opinion? Is every stakeholder treated equally? What is the 
formula you use to decide what weight you give a stakeholder's 
    Mr. Michaels. Obviously, this isn't a voting to say what 
standard we like.
    Mr. Rokita. No, because a voting would be absolutely equal.
    Mr. Michaels. Right. We can't do that.
    Mr. Rokita. So it is not that. So you weight it.
    Mr. Michaels. We weight it. And what we try to do is say, 
well, what have we learned from this? When we get to the 
actually written processes--as I said, we have a very long, 
complex process. When we get to written comments, we have to 
examine every single comment and respond to it in our Federal 
Register notice. So we give them tremendous weight. We decide 
whether or not to accept them.
    Mr. Rokita. But I read some of these responses. I have 
written some of the responses in my career. And I said--it 
could go along the lines of, well, the Agency doesn't think--
the Agency doesn't think that this has any merit, period.
    Mr. Michaels. By law we can do that. We tend not to do 
that. We actually try to take it very seriously and say, well, 
does this make sense? But you know, what we find is 
stakeholders tell us opposite things.
    I mean Indiana is great example. The Indiana State OSHA 
program, part of your State government, immediately implemented 
the same program that OSHA did. They looked at this and said 
this makes a lots of sense. So one of our stakeholders is the 
State OSHA programs. There are more than 20 of them around the 
country. And they looked at what we have done around fall 
protection, and they said yes, we want do that, too. Michigan 
just did that. Your State government said this makes a lot of 
sense, we are going to implement that same program.
    Mr. Rokita. So in the universe of State stakeholders, how 
many States have to agree with your program before you validate 
your own program?
    Mr. Michaels. We don't have a formula like that. We have 
input from them. But we don't say there is a certain number.
    Mr. Rokita. So what if, you know--so you weight Indiana 
heavily if it agrees with you.
    Mr. Michaels. In this case, all of them agreed with us. One 
is not there yet. But that is not the way things work, 
    Mr. Rokita. I am just asking. You see if you can learn 
    Mr. Michaels. Yeah.
    Mr. Rokita. I wrote that down.
    Mr. Michaels. We talk to experts.
    Mr. Rokita. What determines if you learn something?
    Mr. Michaels. Well, we give more weight to experts, 
obviously. We give more weight to experts.
    Mr. Rokita. My time is up, sir. Thank you very much.
    Mr. Michaels. Thank you, sir.
    Chairman Walberg. The gentleman's time has expired.
    We turn now, recognize Mr. Kucinich from Ohio.
    Mr. Kucinich. Thank you very much, Mr. Chairman.
    I think it is important that this subcommittee reflect on 
the purpose of OSHA, by definition safety and health in the 
workplace. And we are all concerned about jobs and any 
impediments to jobs. But I think it is also important that we 
monetize the impact of health and safety regulations which 
create an environment that doesn't off-load on to the worker, 
their families, and society the costs of injuries to the person 
or to their debilitating conditions that might lead to a 
decline of their long-term health. Because that is a factor. In 
effect, what workers do, if there is not a safe workplace, they 
end up subsidizing the profits of the business through adverse 
conditions that they absorb with respect to declining health.
    Now, I am looking at that picture over there, and I would 
like to ask Mr. Michaels the following question.
    The Roofing Contractors Association wants to keep the 
exemption which allows them to use slide guards instead of 
conventional fall protection. Now, the testimony that was given 
to this committee by Mr. Korellis said that it would create a 
greater hazard to use conventional fall protection on 
residential roofs. But when I look at the picture of the slide 
guard, I wonder what happens to workers who trip or fall over 
the slide guard. Will this really stop a fall?
    Mr. Michaels. That is absolutely right. What slide guards 
do is they stop slides. They don't stop trips. And we heard 
earlier actually of a contractor who sent us a letter about a 
worker who was wearing conventional fall protection who tripped 
and went over the slide guard, and his life was only saved, we 
believe, or from injury, by his conventional fall protection.
    Mr. Kucinich. Who pays, though? If the worker is injured or 
is killed--I mean, let's talk about the injury. Talk about the 
impact on society of that injury.
    Mr. Michaels. Well, beyond workers' compensation payments, 
which are generally limited, they are often not adequate, what 
we have seen--there are a number of studies that show that the 
costs of worker injuries are borne by, first, the employer 
through workers' compensation, but a tremendous portion are 
borne by the worker and their family because they aren't made 
whole in terms of their income and their abilities after they 
have been hurt.
    And, finally, there is very clear evidence in fact the 
taxpayer picks up a tremendous amount for those costs through 
various disability programs, through Medicare. The SSDI trust 
fund, which is in some financial difficulty, picks up a 
tremendous amount of costs from people who are injured.
    Mr. Kucinich. So what you are saying is that these safety 
protections that are put in place by OSHA regulations actually 
end up saving money for everyone, and not to mention the fact 
that it is protecting the workers and, by reference, their 
    Mr. Michaels. Yes, sir.
    Mr. Kucinich. And then has OSHA evaluated the costs and 
benefits of its workplace safety regulations? Have you 
monetized those?
    Mr. Michaels. Well, we can't do them all, but we have 
looked at very specific ones. We don't look at the monetary 
value of it. We look at the lives saved. And we see over and 
over and over again that OSHA regulations save lives.
    The other thing that other people, independent people have 
looked at is what is the cost of the regulations? And the 
Office of Technology Assessment of Congress looked at eight 
OSHA regulations, and they found that in fact they had very 
little impact. They weren't burdensome. They didn't lose jobs.
    There is always an accusation that a new OSHA regulation is 
going to cost jobs. And the one I talked about in my testimony 
is probably the most well-known one, where the plastics 
industry announced that the vinyl chloride standard, a 
carcinogen in this case, if OSHA implemented the standard it 
would cost 2.2 million jobs. It didn't cost a single job. In 
fact, the industry was able to improve their production 
processes, keep the feedstock in the factories without losing 
it into the air.
    Mr. Kucinich. So there are scare tactics that try to knock 
down a regulatory environment. But the regulatory environment 
actually enhances the position of businesses so it makes it 
less likely there would be claims or lawsuits against them.
    Mr. Michaels. We know that OSHA regulations don't kill 
jobs. They stop jobs from killing workers. And they don't hurt 
the economy at all.
    Mr. Kucinich. The way that you just put it--they don't kill 
jobs, they stop jobs from killing workers--that is the purpose 
of OSHA, correct?
    Mr. Michaels. Exactly, sir.
    Mr. Kucinich. Okay. Thank you.
    Yield back.
    Chairman Walberg. I thank the gentleman.
    Let me welcome to our subcommittee our distinguished 
colleague from Wisconsin, Representative Ribble. We certainly 
are open to Members from both sides of the aisle who have 
specific interests in a committee hearing or legislation that 
we are dealing with to ask to be involved in the committee 
hearing, and that was the case here. So, without objection, 
Representative Ribble will be permitted to join and participate 
in our hearing today.
    I hear no objection. Welcome. You are recognized for your 5 
minutes of questioning.
    Mr. Ribble. Thank you, Mr. Chairman; and thank you, Ranking 
Member Woolsey, for allowing me to come this morning.
    The reason this is such an interesting topic for me, Dr. 
Michaels, is I am a professional roofing contractor, with 35 
years of experience, having put on tens of thousands of roofs 
just like the one pictured here that you show on your slide.
    In 1995, when the exemption was put in place, I was sitting 
on that side of the table, along with your colleagues from 
OSHA, giving testimony on why the exemption should continue. 
Apparently, my testimony was compelling, because it was 
    And I am going to ask you a few questions today, because I 
have heard a lot about regulations don't cause jobs, it is lack 
of demand, and all this kind of stuff. But I have discovered 
very quickly as a former business owner that a lot of times we 
connect dots, but we don't collect the right ones. In this 
case, let me give an example.
    Let's take a family of three or four people. We have got a 
mother and a father and three children, relatively low-income 
Americans. Maybe the husband or wife is unemployed. And they 
have a leak in their roof in their bathroom because the 
bathroom vent has a flashing problem. They call the local 
roofing contractor, and it is a low slope roof, about 3 in 12. 
Today, or prior to this, the roofing contractor could go up 
onto that roof, and it would cost about $50, 15 to 20 minutes 
of work to solve that problem.
    This is an OSHA fact sheet provided by your department, and 
on the back of it I circled the example that you have depicted 
here of appropriate fall protection. Can you tell us how long 
it takes to install that anchor that you are showing there, 
that tripod for the retractable lifeline?
    Mr. Michaels. Well, first, you know, my understanding of 
our regulation here is that a 3-12 roof, we wouldn't require 
any conventional fall protection, that a monitor would be 
    Mr. Ribble. Oh. That is an interesting statement. I would 
like you to keep that in the record.
    Mr. Michaels. I have my roofing experts right here.
    Mr. Ribble. Okay. Let's make it a 6-12. Still walkable. 
Will that help you?
    Mr. Michaels. I have to tell you, you know, OSHA covers 130 
million workplaces. I have a number of people here who are----
    Mr. Ribble. Let me tell you as a professional roofing 
contractor how long that takes. Okay. It takes about 3\1/2\ 
hours. Because, you know, you can't just go up there and pound 
nails into there because it has to support the weight of an 
adult falling for 6 feet, which has a tremendous amount of 
force. That actually has to be bolted down to the roof. Okay. 
So now a $50 repair is now $300 or $400 to do the same amount 
of work. And in fact the exposure of the worker unprotected 
while attaching this is longer than the time of the repair.
    Mr. Michaels. But is he get going to be putting on a slide 
guard instead?
    Mr. Ribble. That takes about 15 to 16 minutes to put that 
slide guard on there.
    Mr. Michaels. He is not going to use those same sorts of 
    Mr. Ribble. That is what a slide guard is. It takes about 
15 to 16 minutes to put up. So that is all included in the cost 
    And, you see, here is the problem. As the price goes up--
and it has to go up, and it does--that family now can't afford 
it. So demand goes down. And as rules and regulations are piled 
on and prices continue to go up, a necessary segment of the 
population can no longer afford it.
    Let's take our same low-income family now. That roof 
continues to leak because they weren't able to afford it. Now 
that family has a new exposure. They have exposure to 
additional structural damage, they have exposure to mold and 
mildew and sickness themselves. Is their safety less or more 
important, do you believe, than the safety of that worker, who 
might have been able do it without a fall?
    And, in fact, the letter that you sent to me said that only 
three falls, three fatalities have occurred when slide guards 
were used. From 2005 to 2007, roofers in residential 
construction, there were three fatalities when slide guards 
were used.
    Mr. Michaels. There were three in our records.
    Mr. Ribble. Aren't your records the ones that you use to 
promulgate rules?
    Mr. Michaels. Of the serious injuries in residential 
construction, thousands are reported through the BLS system. 
So, obviously, we have to, you know, weigh these things out. 
But when we look at these situations, if your roofer went out 
and it was a 9-12 roof----
    Mr. Ribble. Yes.
    Mr. Michaels [continuing]. Then by law they would have to 
do it.
    Mr. Ribble. That is correct.
    Mr. Michaels. And they are at risk there. Are they at much 
less risk because it is a 6-12?
    Mr. Ribble. Oh, absolutely.
    Mr. Michaels. But they are still at risk. He may fall.
    Mr. Ribble. So you would like zero risk.
    Mr. Michaels. No, not zero risk. Because the 3-12 roof we 
are saying he doesn't need to do that. And people have died off 
of 3-12 roofs. But we have weighed this. Our stakeholders have 
weighed this. The National Association of Home Builders asked 
us to do it this way. We think it can be done this way 
reasonably. Obviously, it is going to raise some costs, but it 
is going to save some lives. And that is what OSHA is about. 
And it is not at zero cost, but we think this is a reasonable 
    Mr. Ribble. I am just watching my time.
    Chairman Walberg. The gentleman's time has expired.
    Mr. Ribble. Okay. I yield back. Thank you.
    Mr. Kucinich. I ask unanimous consent to give the gentleman 
another minute, and I would like him to yield for a question.
    Mr. Ribble. Yes, I will yield.
    Mr. Kucinich. Do we have unanimous consent?
    Chairman Walberg. Unanimous consent? Yes.
    Mr. Kucinich. Okay. We all admire my friend's expertise in 
roofing. I just have a question. Have you ever fallen off a 
    Mr. Ribble. No, sir.
    Mr. Kucinich. Okay. That is my only question. Thank you. I 
am glad for that.
    Mr. Ribble. And in my 35 years of running my company, I 
have never had a fatality in my company. Because an injured 
worker I cannot make a profit on. So, therefore, worker safety, 
there is a compelling profit interest for American employers to 
keep their workers safe. And I did so because I have a 
conscience, and I didn't do so because the government told me I 
    Mr. Kucinich. I thank the gentleman. Thank you.
    Ms. Woolsey. Would the gentleman yield a little bit of that 
minute to me?
    Chairman Walberg. We have 30 seconds left.
    Ms. Woolsey. Okay. And maybe I am a cynic. I cannot imagine 
any project where a roofing company packs up, goes to 
somebody's home, and takes care of a problem for $50.
    Mr. Ribble. I would invite you to move to Wisconsin.
    Ms. Woolsey. Well, I do live in California. I give you 
    Chairman Walberg. This brings back memories of having an HR 
person out there asking your rates.
    Thank you. Dr. Michaels, I appreciate the time you spent. I 
am sure there will be other letters coming and responses with 
that. But we do sincerely appreciate the responsibility you 
have and the desire to have a safe workplace, with that 
creative tension of also having a workplace that continues on 
and the differing opinions that come from various practitioners 
in the construction industry as well with what they do. Thank 
you for your time. I appreciate that.
    We will ask now for the second panel of witnesses to join 
us at the table, and we will continue on with our hearing.
    We will resume our hearing and thank the witnesses for 
being here. I will begin the introductions. I am delighted to 
have our member from Indiana, the former regulator, Secretary 
of State, Mr. Rokita, to introduce our first witness.
    Mr. Rokita. Thank you, Mr. Chairman.
    I am happy to be able to introduce a great Hoosier, Mr. 
Pete Korellis. Pete and I come from the same home county. It is 
a great county that contributes a lot culturally and 
economically to the State of Indiana, and Pete is an excellent 
citizen of that county. He is president and owner of Korellis 
Roofing in Hammond, Indiana. It was founded in 1960.
    Mr. Chairman, I used to be a roofer myself in Lake County, 
Indiana. I did not work for Mr. Korellis or his company. I 
worked for one of his competitors. And he was an excellent 
competitor, Mr. Korellis and Korellis Roofing. And they were 
always the company to beat because of what Congressman Ribble 
had said, how they have a conscience and take care of their 
workers and also are entrepreneurs who intend to make a profit 
and because of that have made the county, the State, and this 
country great. I very much appreciate his willingness to 
testify before us today, and I am happy to welcome him here, 
Mr. Chairman.
    Chairman Walberg. I thank the gentleman.
    And joining Mr. Korellis will be Peg Seminario--I hope I 
got that close--director of the Health and Safety Department, 
AFL-CIO, as well as David Sarvadi, a partner at Keller and 
Heckman. Thank you as well to each of you for being here, and 
we look forward to your testimony.
    Again, just as a reminder, the lights in front of you are 
for a purpose; and I appreciate the fact that the last witness 
kept to that well, as well as my colleagues today. So we will 
try to do that, green giving you 5 minutes, yellow means that 
you have 1 minute left, and red cut it off as soon as 
possible--not necessarily the next sentence, but let's keep it 
    So, having said all of that, let's move to our first 
witness. And I will ask Mr. Pete Korellis.

                     KORELLIS ROOFING, INC.

    Mr. Korellis. Thank you, Mr. Chairman, and members of the 
committee. My name is Pete Korellis. I am president of Korellis 
Roofing Company in Hammond, Indiana. I am testifying on behalf 
of the National Roofing Contractors Association.
    I am here because I have deep concerns that the new rules 
issued by the Occupational Safety and Health Administration 
will put my workers at greater risk of injury and also make it 
more difficult for me to operate my business.
    I am well aware that one fall from a roof is one too many, 
and my company is committed to providing a safe workplace for 
my employees. For the last 15 years, we have been following a 
rule negotiated by OSHA and roofing industry representatives 
that gave us several options of fall protection on residential 
dwellings based on what we felt was the best solution for a 
given project. This included slide guards on moderately sloped 
    My company has worked on thousands of homes under the old 
rules. We have not had a single serious accident or injury 
resulting from a fall.
    OSHA's new rules require us to use what are called 
conventional fall protection methods and effectively eliminate 
the option of using slide guards. The problem is that these 
alternative options are often infeasible or will create greater 
hazards. The most practical of options, the personal fall 
arrest systems, do not take into account that most dwellings 
are not designed to accept an anchor point that can withstand a 
5,000-pound load. My company works on all kinds of residential 
structures, and we are not qualified to determine if the 
rafters will bear 5,000 pounds of weight.
    Also, my employees move around the roof a lot. That is the 
nature of the reroofing and service work industry. With ropes 
or safety lines all over the roof, they are more likely to trip 
and fall. And falling off a roof, even with a harness on, is 
something we want to avoid.
    Importantly, there is a big difference between new 
construction and the repair or replacement of an existing roof. 
New construction activities can make effective use of 
guardrails, safety nets, personal fall arrest systems, and even 
scaffolding because of the ease of access around a building 
that is under new construction. These options are usually not 
feasible in typical repair and reroofing activities. Here is an 
    We recently completed a roof replacement on a ranch-style 
home where the only access for our dump truck was in the 
driveway, which is quite common. We had to carry the shingle 
tear-off, literally thousands of pounds of tear-off, from the 
rear of the dwelling up and over the peak, all the way to the 
front of the home where the driveway is located, where our dump 
truck was.
    With a five-man crew, which is again very common for a 
roofing tear-off, the ropes became tangled up. We were catching 
on the roofing materials. We were catching it on the individual 
roofers. Plus the excess traveling slack in those ropes needed 
to travel from the back of the home all the way up and over 
means it would not have restrained my workers from falling on 
all different sides of the home as they are traveling from 
point A to point B.
    The point is, for this type of work, slide guards are both 
safer for our workers and are more efficient. OSHA officials 
will tell you that if the use of conventional fall protection 
methods is either infeasible or creates a greater hazard, then 
I can still use slide guards by developing a site-specific 
protection plan. But the process for developing such a plan is 
virtually impossible to use in most circumstances.
    Here is what the new rule means in the real world. 
Repairing a small roof leak under the old rules could be done 
safely with one employee using a slide guard. OSHA's new rules, 
for reasons outlined in my written statement, turn a simple 
roof repair into a slow and costly ordeal that may involve 
putting two or three of my employees at greater risk.
    It is also important to note that OSHA has presented no 
evidence to demonstrate that slide guards are a less effective 
form of fall protection than the alternatives. We know that 
OSHA has reports of fatal falls--I am sorry, they have more 
reports of fatal falls when personal fall arrest systems are 
used than when slide guards were used. I fully support the idea 
of roofing companies taking positive steps to prevent falls. 
When it comes to roofing and repair work, it is better to 
assess the hazards and choose the fall protection system best 
suited for each unique job.
    A fall due to my negligence could not only result in OSHA 
fines, business disruptions, it could put me out of business. 
But, more importantly, it could cause a life-changing incident 
for one of my employees and his or her family.
    Another important point is that OSHA statistics show that 
approximately 90 percent of fatal falls--90 percent of fatal 
falls happen when there is no fall protection being used. It 
doesn't make sense to eliminate any effective form of fall 
    On behalf of the NRCA, I respectfully ask the committee to 
consider a legislative remedy to this problem if OSHA will not 
work with our industry to resolve this issue. We stand ready to 
work with Congress and agency officials to find the best 
possible solution for improving worker safety.
    On behalf of myself and the National Roofing Contractors 
Association, I would like to thank you for this opportunity.
    [The statement of Mr. Korellis follows:]

   Prepared Statement of Pete Korellis, President, Korellis Roofing,
 Hammond, IN, on Behalf of the National Roofing Contractors Association

    Mr. Chairman and Members of the Subcommittee: My name is Pete 
Korellis and I am president of Korellis Roofing Company in Hammond, 
Indiana. I am testifying on behalf of the National Roofing Contractors 
Association, which was founded in 1886 and is the voice of professional 
roofing contractors nationwide. NRCA has approximately 4,000 members in 
all 50 states that are typically small businesses, with our average 
member having 45 employees and annual sales of $4.5 million. Our 
company was founded in 1960 and employs approximately 120 people. Even 
with a severe downturn in the housing industry, our company has managed 
to grow our residential business and employ additional craftsmen. We 
are successful because we thoroughly understand our industry; we are 
committed to the people who work for us; and our #1 goal is to send all 
of them home safely every day. No job is so important that we cannot 
take the time to do it safely.
    I am here today, Mr. Chairman, because I have deep concerns that 
new rules issued by the Occupational Safety and Health Administration--
OSHA--will put my workers at much greater risk of injury and also make 
it much more difficult for me to operate my company.
    The issue in question is fall protection for people working on 
roofs. We are all too aware that one fall from a roof is one too many, 
and my company is committed to providing a safe workplace for my 
employees. For the last 15 years, we have been following a rule that 
was negotiated by OSHA and roofing industry representatives. The rule 
allowed us to use a variety of options for fall protection on 
residential dwellings, based on what we believed was the best solution 
for a given project. For example, on metal and tile roofs, we could use 
individuals as safety monitors for fall protection, because tile and 
metal is usually stacked in multiple piles all over the roof before the 
work is begun, and introducing ropes on the roof would make it 
extremely difficult to maneuver around the roof to complete the work.
    Also, we were allowed to use what OSHA calls ``slide guards'' on 
moderately sloped roofs; usually these are 2x6 wooden boards (figure 1) 
that are secured upright around the perimeter of the roof utilizing 
metal roof brackets (figure 2) anchored to the roof joists, and then 
spaced up the roof a maximum of 8' apart so that if a worker slips, the 
slide guard will catch him. Moderately sloped roofs, for the purpose of 
the old directive, are those with slopes greater than 4:12 up to 8:12, 
meaning the roofs rise more than 4 vertical inches for every 12 
horizontal inches (figure 3) up to those rising 8 vertical inches for 
every 12 horizontal inches.

    We acknowledge, Mr. Chairman, that like all things in life, safety 
monitors and slide guards are not fool-proof. But in those 15 years, my 
company has worked on thousands of homes and we have not had a single 
serious accident or injury resulting from a fall.
    The new OSHA rules, which were issued last December and became 
effective on Sept. 16, require us to use what OSHA calls ``conventional 
fall protection'' methods. Mr. Chairman, there is nothing conventional 
about them. My choices are to install scaffolding and/or guardrails 
around every home my workers are on, or to install a safety net around 
the perimeter of the house, or to put my workers in harnesses with 
lanyards--what OSHA calls ``personal fall arrest systems''--that have 
to be secured to an anchor point, usually at the roof's ridge. Of the 
three options we have to choose from, the first two, guardrails or 
safety nets, are completely impractical to use on an existing dwelling 
for a number of reasons. Necessary structural attachment points, 
readily accessible on a home under construction, are covered by 
finished trim details like soffit, fascia and gutters on an existing 
dwelling. Guardrails and safety nets also obstruct the tear off 
procedure as debris has to be lifted over them for disposal. In 
addition, most of this equipment is required to be secured directly 
through the roofing materials we will be removing during the course of 
the project. This safety equipment will need to be removed and 
reinstalled at several phases of roof tear-off, dry-in and new material 
application, increasing worker fall exposures during the numerous times 
we will need to set up and break down this equipment.
    In my company, I want to minimize the time my employees spend in 
dangerous situations. That means, among other things, I don't want them 
working near the edge of the roof unless and until they have to in 
order to finish the job. Now, if I am supposed to install guardrails or 
a safety net around the perimeter of a home, my first question is: How 
am I supposed to protect the people installing the guardrails and 
safety nets? And would OSHA really want me to expose even more of my 
workers, for an even longer period of time, to the hazards associated 
with working near the roof's edge?
    The most practical of the three options, personal fall arrest 
systems, do not take into account that most dwellings were not designed 
to accept an anchor point that can withstand a 5,000 pound load. 
Personal fall arrest systems are not fool-proof either. My company 
works on all kinds of existing residential structures, and we are not 
qualified to determine if the rafters we're attaching the anchor to 
will bear 5,000 pounds of weight. Also, my employees move around on the 
roof a lot while they are working--that's the nature of reroofing and 
service work. With ropes all over the roof, they are much more likely 
to trip and fall. And falling off a roof, even with a harness properly 
secured to resist a 5,000 pound load, is something we really want to 
    We also know that OSHA has more reports of fatal falls when 
personal fall arrest systems are used than when slide guards are used. 
And we know that the use of personal fall arrest systems introduces a 
whole host of greater hazards, most notably those resulting from 
tripping over ropes on the roof. On roofs 4:12 to 8:12 the ropes lay on 
the roof under your feet and are practically out of sight--especially 
if the workers are carrying materials. However, once workers are on a 
roof with a slope greater than 8:12 the ropes now lay in front of the 
workers because of the roof's pitch (figure 5). So the slope is an 
important variable and why we agree that on these very steep roofs 
tying off is appropriate.

    Importantly, there is a big difference in new construction roofing 
activities and the repair, maintenance or replacement of an existing 
residential roof. New construction activities are coordinated with many 
other trades' activities and can make effective use of guardrails, 
safety nets and personal fall arrest systems and even scaffolding 
because of ease of access (Figure 6) versus typical repair, reroof and 
maintenance activities in established neighborhoods (Figure 7).

    Here's an example: We recently completed a very common type roof 
replacement on a ranch style house. Due to the existing landscaping, 
the only access for our dump truck was in the driveway, which is common 
when we are replacing a roof. We had to carry the shingle tear-off from 
the rear of the home up over the roof peak to the front of the home 
where our dump truck was located. As you can probably imagine with a 
five man crew, the ropes became tangled and were catching on everything 
on the roof including the workers; not to mention the fact that we 
still weren't compliant due to the amount of slack needed in the ropes 
to travel the long distance to our dump truck from the rear of the home 
to the front of the home. The excess ``traveling slack'' needed in the 
ropes would not have restrained my employees from falling off the roof. 
In order to comply, we would have had to screw anchors points (that 
resist a 5,000 pound load) to the roof deck at intervals in the 
direction of our dump truck, and then hire someone to constantly switch 
the ropes from anchor point to anchor point. This is unreasonable and 
just one example of problems that we have run across so far.
    In addition, my employees think personal fall arrest systems are 
cumbersome and I'm concerned they will not use them properly if they 
think they are either creating greater dangers or merely providing a 
false sense of security. The reports of fatal falls in OSHA's files--
when personal fall protection was used--indicate that either the anchor 
points failed to resist 5,000 pounds of resistance, the anchors weren't 
attached, or the ropes weren't attached to the employee's harness. The 
point is: We can provide equipment to our employees, we can train them, 
but we can't always make sure they follow our instructions. I'd much 
prefer to be able to assess each job we do, and find the fall 
protection solution that makes the most sense for that job. In fact, 
Mr. Chairman, that is exactly the kind of approach OSHA is advocating 
in its Injury and Illness Prevention Program.
    Now, OSHA officials will tell you that if I think the use of 
``conventional fall protection'' methods is either infeasible or 
creates a greater hazard, then I can choose to use another method, such 
as slide guards or safety monitors by developing a site-specific fall 
protection plan. Let me describe this option for you. The requirements 
found in 29 CFR Sec. 1926.502(k) are as follows:
    1. The plan must be prepared by a qualified person,\1\ kept up to 
date and developed specifically for the site.
    \1\ ``Qualified person'' means one who, by possession of a 
recognized degree, certificate, or professional standing, or who by 
extensive knowledge, training, and experience, has successfully 
demonstrated his ability to solve or resolve problems relating to the 
subject matter, the work, or the project.
    2. Changes to the plan must be approved by a qualified person.
    3. A copy of the plan with all changes must be maintained at the 
job site.
    4. Implementation of the plan must be under the supervision of a 
competent person.\2\
    \2\ ``Competent person'' means one who is capable of identifying 
existing and predictable hazards in the surroundings or working 
conditions which are unsanitary, hazardous, or dangerous to employees, 
and who has authorization to take prompt corrective measures to 
eliminate them.
    5. The plan must document the reasons conventional fall protection 
is infeasible or creates a greater hazard.
    6. The plan must discuss other measures that will be taken to 
reduce or eliminate fall hazards to workers not protected by 
conventional fall-protection methods.
    7. Locations where conventional fall protection cannot be used must 
be identified and classified as controlled access zones; compliance 
with provisions of 29 CFR 1926.502(g) relating to controlled access 
zones is required.
    8. If no other fall-protection measure has been put in place, the 
employer must implement a safety monitoring system as described in 29 
CFR 1926.502(h).
    9. Employees designated to work in the controlled access zone 
established under the plan must be identified by name or other manner 
in the plan--no other workers may enter the controlled access zone.
    10. The employer must investigate any serious falls or incidents at 
the site to determine whether the fall-protection plan must be revised 
to prevent future incidents.
    Adding to the site-specific requirement, OSHA states in the new 
instruction: ``A written plan developed for repetitive use for a 
particular style/model home will be considered site-specific with 
respect to a particular site only if it fully addresses all issues 
related to fall protection at that site.'' This differs from the 
regulation's strict requirement that the written fall-protection plan 
be ``developed specifically for the site'' and authorizes repetitive-
use plans that apparently could be based on similar characteristics of 
a job site such as single-story; multi-story; multi-level; low-slope; 
steep-slope; or tile, metal, slate or cedar shake installations. A 
determination of infeasibility or greater hazard in the use of a 
conventional fall-protection method still would be required.
    If a structure does not meet OSHA's definition of ``residential 
construction,'' \3\ even this option may not be used to implement fall 
protection methods other than the three conventional methods. OSHA 
revised its definition of ``residential construction'' in the new 
instruction to allow exterior wall structures of solid masonry and 
framing materials of cold-formed metal studs to be included in the 
    \3\ ``The Agency's interpretation of `residential construction' for 
purposes of 1926.500(b)(13) combines two elements--both of which must 
be satisfied for a project to fall under that provision: (1) the end-
use of the structure being built must be as a home, i.e., a dwelling; 
and (2) the structure being built must be constructed using traditional 
wood frame construction materials and methods (although the limited use 
of structural steel in a predominantly wood-framed home, such as a 
steel I-beam to help support the wood framing, does not disqualify a 
structure from being considered residential construction.)''
    A greater number of structures conceivably may qualify as 
residential because of that change, but, the agency also limited the 
definition to include an ``end-use'' requirement, meaning the building 
must be used as a dwelling. For example, work on a home that has been 
converted exclusively to an office, though it retains its original wood 
framing, is not considered residential construction under the new 
instruction, and a roofing contractor would not be permitted to develop 
a fall-protection plan to use as a means of fall protection other than 
the three conventional methods at that job site.
    Mr. Chairman, here is what the option for determining personal fall 
arrest systems are either infeasible or create a greater hazard means 
in the real world. Suppose you discover you have a roof leak, and you 
call my company to fix it. When my company gets a call like that, our 
practice is to send one person to the home to investigate the leak and 
to try to fix it on the spot. Before the new rule was issued, if my 
employee found the source of the leak and was going to repair it, he 
would install slide guards at the roof eave in the area where he would 
be working. If the roof was steeper than 8-in-12, he would use a 
personal fall arrest system before he went on the roof.
    Let's suppose that your leak is from deteriorated flashing around 
your chimney, and the chimney is near the roof eave. Let's also suppose 
my employee determines he could fix it fairly easily, and is concerned 
about attaching a harness to himself and climbing up to the ridge of 
the roof, where he is unsure that there is an anchor point that would 
hold 5,000 pounds. OSHA says that the personal fall arrest systems have 
to be anchored\4\ to support a load of 5,000 pounds or have a safety 
factor of two, which would need to be determined again by a qualified 
person. I'm not sure how many of my small business counterparts have 
engineers on staff to do these calculations, but I suspect it is close 
to none, so we have to rely on manufacturer installation requirements 
that come with the anchors. The liability of even attempting to assume 
a safety factor of two is frankly foolish for anyone without a 
structural engineer on the company's payroll.
    \4\ 1926.502(d)(15) Anchorages used for attachment of personal fall 
arrest equipment shall be independent of any anchorage being used to 
support or suspend platforms and capable of supporting at least 5, 000 
pounds per employee attached, or shall be designed, installed, and used 
as follows; (i) as part of complete personal fall arrest system which 
maintains a safety factor of at least two; and (ii) under the 
supervision of a qualified person.
    If he wanted to repair the leak quickly by installing slide guards 
near the eave just like we have for the past 15 years, here is what my 
employee would have to do under the new rule: He would have to return 
to the office to have a qualified person write a site-specific fall 
protection plan for the project stating why the new conventional fall 
protection methods are not feasible or create a greater hazard. Since 
the ``qualified person'' might not be familiar with the project, he 
would probably have to visit the job site. Then I would have to arrange 
for a ``competent person'' to accompany my employee to your home to 
oversee the work.
    Mr. Chairman, what would have been a simple roof repair has now 
turned into a very slow and costly ordeal. By the time the leak is 
fixed, your house would be pretty wet. A simple roof repair would have 
cost you a lot of money. And I would have put perhaps three of my 
employees at needless risk.
    I fully support the idea of having roofing companies take positive 
steps to prevent falls. I know it appears that using personal fall 
arrest systems seems like the best way to prevent falls. But when it 
comes to residential reroofing and repair I honestly feel it is much 
better to assess the hazards and choose the fall protection system best 
suited for each unique job. Often, we have no way of knowing that the 
residential structure was designed to resist a 5,000 pound load. A fall 
due to my negligence could not only result in OSHA fines and business 
disruption, it could in fact put me out of business. But most 
importantly it could cause a life-changing incident that could not only 
affect my employee but also his or her family. My company has spent the 
last 15 years training our employees about what we believe are the very 
best methods for preventing falls.
    This is a dangerous industry even when all safety measures are 
being used. I have to be able to look myself in the mirror and know 
without question that I have provided the proper training to minimize 
the chance of an accident. It is an important investment that is well 
worth the expense. Now I am faced with the prospect of re-training all 
of my employees to use equipment they don't have confidence in, 
equipment that provides only a false sense of security and has been 
proven to be riskier to use in many circumstances.
    Mr. Chairman, OSHA has told us they would provide us with all sorts 
of training materials to help us comply with this new rule. I remind 
you that it was issued almost 10 months ago. Until very recently, we 
had seen only a PowerPoint presentation on the OSHA web site that is 
focused almost entirely on new home construction, which again is 
completely different from repair and replacement, which accounts for 
80% of the work done in the roofing industry. OSHA has promised for 
months that it would be developing a booklet specific to roof repair 
and replacement. The enforcement date for the new rule has come and 
gone, and there is no booklet. I recently learned there is a new Fact 
Sheet on OSHA's website that discusses roof replacement and repair, but 
it is virtually useless to me.
    It talks, for example, about using scaffolds or aerial lifts to 
perform repair work at a roof's edge. So for that roof repair described 
earlier, I suppose I could rent an aerial lift and transport it to the 
home (probably destroying some landscaping in the process) in order to 
fix that leak near the chimney. Or I could erect a scaffold system on 
the side of the house, but of course the new Fact Sheet doesn't address 
the exposure to falls that workers have when erecting scaffolding or 
the damage it may do to the home.
    Additionally, the new rule is full of ambiguities that have not 
been addressed by OSHA. Representatives from my industry have tried, 
without success, to be heard before the new rule was issued. I hope you 
can understand how frustrating this is for me and my roofing industry 
    It is also important to note that OSHA has presented absolutely no 
evidence to demonstrate that slide guards are a less effective form of 
fall protection than the alternatives. In fact, a review of OSHA data 
indicates that between 2004 and 2008 there were 14 fatalities from roof 
falls when personal fall arrest systems were in use, compared to only 
two or three involving slide guards. Government agencies should be 
required to justify regulatory actions such as this directive with 
credible, scientifically-based evidence and data. OSHA has not done so 
in this case, and, we believe, cannot do so.
    Another important point is that OSHA's data show clearly that 
approximately 90% of fatal falls from roofs happen when no form of fall 
protection is in use. Why would OSHA want to eliminate or limit slide 
guards, which are proven to be an effective form of fall protection? 
Moreover, in order to truly improve workplace safety and prevent falls 
in our industry, OSHA should target its enforcement efforts at 
contractors that use no fall protection.
    Interestingly, there are some OSHA state plans that have worked 
with the roofing industry to promulgate safety standards that have 
taken into account many of these concerns. For example in California, 
CAL-OSHA has a unique set of roofing-related requirements that have, 
among other choices, slide guards available as an option closely 
reflecting the former federal provisions. So there is evidence that 
others are not only working with the affected industry but developing 
smart safety rules as a result.
    Meanwhile, Mr. Chairman, I will be returning to Indiana tomorrow 
and requiring my employees to follow practices that I believe are not 
always the best ways to prevent them from falling. I find that 
incredibly difficult to do.
    On behalf of the National Roofing Contractors Association, I 
respectfully ask the committee to consider a legislative remedy to this 
problem, which threatens workplace safety in our industry, if OSHA is 
not willing to work with industry representatives to address our 
concerns. NRCA wishes to commend Rep. Denny Rehberg for including 
language in the FY 2012 Labor/HHS/Education Appropriations bill 
introduced Sept. 29 that would restrict OSHA from enforcing this 
directive with respect to roof repair and replacement activities. NRCA 
urges Congress to approve this legislation that will prevent injuries 
to workers that may result from OSHA's directive and minimize 
disruption in the roofing industry while we continue working to develop 
a policy that makes sense for our industry.
    We stand ready to continue working with Congress and agency 
officials to resolve this problem and to find the best possible 
solutions for improving worker safety. Thank you for your careful 
consideration of our views on this important issue.
    Chairman Walberg. Thank you, Mr. Korellis.
    Now I recognize Ms. Seminario for her testimony.


    Ms. Seminario. Thank you very much. Thank you, Chairman 
Walberg, Ranking Member Woolsey, and members of the committee. 
I do appreciate the opportunity to testify today.
    I have worked at the AFL-CIO for 34 years now, and during 
that time I have been involved in rulemakings on dozens of 
workplace safety and health hazards. I have been around long 
enough to see that the regulations that have been promulgated 
have made a real difference in the lives of workers. I have 
also seen the failure of the regulatory process and the lack of 
government action to address serious hazards result in 
unnecessary deaths, injuries, and illnesses to workers.
    The title of today's hearing is Workplace Safety: Ensuring 
a Responsible Regulatory Environment. I think we should ask the 
question, a regulatory environment that is responsible for whom 
and to what end? Is it an environment that is concerned 
primarily, solely about the costs and impacts on business? Or 
is it a regulatory environment that is concerned with ensuring 
the protection of worker safety and health?
    It is the AFL-CIO's position that, first and foremost, any 
examination of safety and health regulations should be based on 
the premise that protection of workers from harm is our shared 
priority and goal; and that is in fact what the OSHA law 
    We have seen in the last 40 years, since the OSHA Act was 
enacted, that safety regulations and health regulations have 
saved lives. There has been a tremendous, significant drop in 
workplace fatalities, both in numbers and rate. And we have 
seen that decrease in worker deaths not only in the less 
hazardous industries but significant reductions in industries 
like construction and manufacturing. We have seen OSHA 
standards and enforcement on hazards like asbestos, lead, 
trenching, lockout of hazardous equipment reduce exposure to 
hazards and to reduce illnesses, injuries, and deaths.
    But our work is far from done. Unfortunately, last year we 
saw a series of workplace catastrophes that claimed dozens of 
workers' lives: the Upper Big Branch mining disaster that 
killed 29 miners, the BP Gulf Coast oil rig explosion that 
killed 11, the Kleen Energy plant explosion in Connecticut that 
claimed 6 workers' lives. None of these catastrophes was the 
result of too much government regulation or too much 
    Despite the long record of accomplishment in protecting 
workers through a proven system of regulation enforcement, 
today we are seeing a number of people in the business 
community and some in Congress demanding that we abandon this 
path and instead return to a time when there was little or no 
regulation and little or no enforcement. They claim that 
employers have been buried by useless, burdensome regulations, 
and that under the Obama administration they are facing a 
tsunami of new, unnecessary rules, and that regulations are 
responsible for the current jobs crisis and economic situation.
    And as Ranking Member Woolsey has pointed out, last week we 
saw the House Labor-HHS Appropriations Subcommittee chair 
unveil a draft bill that would stop important workplace safety 
and health rules, a number of rules and actions at OSHA, and 
also an action at MSHA to protect coal miners from black lung.
    The AFL-CIO has been the leading advocate for strong 
national action to create jobs in this country. We want to put 
people back to work. But we reject the proposition that to 
address our current economic situation that we must roll back 
our system of government safeguards to protect workers and the 
    Contrary to the claims of some in the business community, 
there really is no tsunami of workplace safety and health 
regulations. In fact, over the last decade, there has been 
barely a ripple. Under the Bush administration, OSHA rulemaking 
virtually ground to a halt.
    Under the Obama administration, there has been some 
movement, with two new rules issued. What the Obama 
administration has been doing most recently is to resuscitate 
and move forward on rules that the Bush administration 
    One of those rules is a standard on silica that was 
initiated back in 1997, declared a priority by the Bush 
administration but unfortunately languished. Unfortunately, 
that rule is now stalled at the White House under OMB review 
behind closed doors. Business groups are meeting with the 
government. We agree with you that we need to get this 
information out into the public, out into the record, and so we 
are encouraging and urging that this OSHA rule move forward 
with a proposed rule so the public process can begin.
    I would like to say that, in looking at what we are facing 
right now and this call to roll back and block regulations, I 
think we have to ask ourselves, in the absence of these 
protections, what kind of country we are or what kind of 
country we will be. I urge the committee to reject efforts to 
block needed safeguards to protect workers. We should not 
abandon the progress made over the last four decades and turn 
back the clock. Taking that path will lead to more workers 
being injured, diseased, and killed on the job.
    Thank you.
    [The statement of Ms. Seminario follows:]

             Prepared Statement of Peg Seminario, Director,
                       Safety and Health, AFL-CIO

    Chairman Walberg, Ranking Member Woolsey: I appreciate the 
opportunity to testify today to discuss workplace safety regulations.
    My name is Peg Seminario. I am Director of Safety and Health for 
the AFL-CIO, where I have worked for more than three decades on a wide 
range of regulatory and policy issues related to worker safety and 
health. During that time, I have participated in the development of 
many worker safety and health standards and regulations through the 
Occupational Safety and Health Administration's (OSHA) rulemaking 
process. I have seen regulations that have been promulgated make a real 
difference in the lives of workers. And I have also seen the failure of 
the regulatory process and the lack of government action to address 
serious well-recognized hazards result in unnecessary deaths, injuries 
and illnesses to workers and hardship and loss for their families.
    The title of today's hearing is ``Workplace Safety: Ensuring a 
Responsible Regulatory Environment.'' I must ask the question--A 
regulatory environment that is responsible for whom and to what end? Is 
it a regulatory environment that is primarily or solely concerned about 
costs and impacts on businesses and regulated entities? Or is it a 
regulatory environment that is concerned with ensuring the protection 
of workers' safety and health through regulations that are sound and 
    It is the AFL-CIO's position that first and foremost, any 
examination of worker safety and health and related regulations should 
be based on the premise that protection of workers from harm is our 
shared priority and goal. Indeed, in the Occupational Safety and Health 
Act, the primary law that governs worker safety in this country, the 
Congress declared as its purpose and policy ``to assure as far as 
possible every working man and woman in the Nation safe and healthful 
working conditions and to preserve our human resources.'' Congress also 
declared that this purpose and policy was to be pursued through the 
exercise of its powers to regulate commerce, and mandated the Secretary 
of Labor to develop, promulgate and enforce safety and health standards 
that are reasonably necessary and appropriate to protect workers from 
    Under the Act, OSHA standards are required to provide a high level 
of protection. For toxic substances and harmful physical agents the 
Secretary of Labor is required to set standards that provide workers 
protection from material impairment of health or loss of functional 
capacity even if exposed over a working lifetime, to the extent 
technologically and economically feasible. The Supreme Court has ruled 
that the OSH Act prohibits OSHA from basing health standards on a cost-
benefit determination, since protection of health, subject to 
feasibility constraints, is required to be the primary consideration.
Workplace Safety Laws and Regulations Have Saved Lives, But There is 
        Much Work to Be Done
    Over its 40 year history the Occupational Safety and Health 
Administration (OSHA) has issued standards on major workplace hazards 
including asbestos, benzene, lead, arsenic, confined spaces, trenching, 
lock-out of hazardous equipment, scaffolding and fall protection. These 
standards and their enforcement have changed industry practice, reduced 
exposure to serious health and safety hazards and the resultant 
injuries, illnesses and deaths.
    Since the OSH Act was passed, workplace fatalities due to injuries 
have been reduced from 13,800 a year in 1970 to 4,547 deaths in 2010. 
The fatality rate has dropped by 81%, with significant drops in 
fatality rates in hazardous industries like construction (86% 
reduction) and manufacturing (76% reduction).
    Over 400,000 lives have been saved from traumatic injury deaths 
since the passage of the OSH Act due to improved workplace protections 
and the efforts of employers, unions, workers, safety and health 
professionals and the government.
    But our work is far from done. In 2010, we saw a series of 
workplace catastrophes that claimed dozens of workers lives--the Upper 
Big Branch mining disaster that killed 29 miners in and explosion, the 
BP Gulf Coast oil rig explosion that killed 11 workers and caused an 
environmental disaster, the Tesoro Refinery explosion in Washington 
State that killed 11 workers and Kleen Energy Plant explosion that 
claimed the lives of 6 workers. Not all of these investigations have 
been finalized, but from what has been documented in all these cases 
the lack of safety rules, the failure to comply with existing rules, 
the push for production and inadequate government oversight and 
enforcement were all major factors. None of these catastrophes was the 
result of too much government regulation or too much enforcement.
    The deaths from these catastrophes were among the 4,547 workplace 
deaths due to job injuries reported in 2010 by BLS. Last year on 
average 12 workers died each day because of job injuries--women and men 
who went to work, never to return home to their families and loved 
ones. This does not include those workers who die from occupational 
diseases, estimated to be 50,000 each year--an average of 137 deaths 
each day.
    In 2009, the most recent year for which data is available, more 
than 4.1 million workers across all industries, including state and 
local government, had work-related injuries and illnesses that were 
reported by employers, with 3.3 million injuries and illnesses reported 
in private industry. Due to limitations in the injury reporting system 
and underreporting of workplace injuries, this number understates the 
problem. The true toll is estimated to be two to three times greater--
or 8 million to 12 million injuries and illnesses a year. The cost of 
these injuries and illnesses is enormous--estimated at $159 billion to 
$318 billion a year for direct and indirect costs of disabling injuries 
    For many groups of workers, workplace conditions remain 
particularly dangerous. Fatalities and injuries among Latino workers 
are much greater than among other groups of workers. Construction 
workers continue to be at especially high risk. Hazards to young and 
inexperienced workers are a significant problem and there are growing 
concerns about safety and health challenges for older workers as more 
workers are staying on the job to an older age. Long recognized hazards 
such as silica, noise, and confined space hazards in construction 
remain serious problems, and ergonomic hazards, infectious diseases and 
most toxic chemicals have not been adequately addressed.
Current Attacks on Regulations Are Based on False Claims--Rolling Back 
        Protections Will Not Create Jobs, But it Will Cost Workers 
        Their Lives
    Despite the decades long record of accomplishments in protecting 
workers through a proven system of regulation and enforcement under the 
OSH Act, many in the business community and some in Congress are 
demanding that we abandon this path and instead return to the days when 
there were no regulations and enforcement and employers were free to do 
whatever they chose. They claim that employers have been buried by 
useless, burdensome regulations and that under the Obama Administration 
they are facing a tsunami of new unnecessary rules. They further claim 
that regulations are responsible for the current jobs crisis and 
economic situation and that they and the country simply can't afford 
any additional regulations, particularly if we are to be competitive in 
today's global economy.
    To this end, business groups have been attacking any and all 
regulations being developed or considered by OSHA and other agencies 
and are pushing to roll back or block enforcement of existing rules. In 
Congress, particularly in the House of Representatives, there have been 
countless hearings on regulations and bills introduced to stop 
individual rules and to ``reform'' the regulatory process for all 
agencies in ways that would make it difficult if not impossible for 
agencies to issue new rules. Efforts are also being made to use the 
appropriations process to block rules or their enforcement by 
prohibiting funds for this purpose.
    Just last week, the Chair of the House Subcommittee on Labor-HHS 
Appropriations unveiled a draft bill that would block much of the 
rulemaking activity at the Department of Labor. In the area of worker 
safety, the bill would stop OSHA rules on workplace injury and illness 
prevention programs, a recordkeeping rule reinstating a requirement 
that employers identify musculoskeletal injuries on the OSHA 300 injury 
log and prohibit OSHA from enforcing basic fall protection requirements 
in residential home construction. The Mine Safety and Health 
Administration would be prohibited from taking action on new coal dust 
rules to protect coal miners from black lung. Prohibiting action on 
these safeguards will cost workers their lives and their health.
    The AFL-CIO has been the leading advocate for strong national 
action to create jobs in this country. Addressing the jobs crisis and 
the 14 million workers who are unemployed, the millions who are 
underemployed, and the lack of economic opportunity for our young 
people must be our highest priority.
    But the AFL-CIO firmly rejects the proposition that to address our 
current economic situation the United States must roll back our system 
of government safeguards to protect workers and the public. We should 
all remember that it was the lack of regulations and government 
oversight that led to the collapse of the financial sector in 2008 and 
the loss of 8 million jobs that is the major cause of the current 
situation. Our system of laws and regulations has made workplaces 
safer, our environment cleaner and our country fairer and more secure.
    We reject the suggestion that current levels of protection are 
sufficient, and no further action is required. We do not accept that as 
a country we should not or cannot take action to reduce the still high 
toll of workplace injuries, illnesses and deaths. We do not agree that 
the government should roll back enforcement efforts and sit on its 
hands and do nothing to protect workers from serious harm and corporate 
neglect or abuse.
    The claims that regulations have caused massive job loss are not 
supported by evidence. A comprehensive review of the literature on the 
impact of regulation on jobs conducted by the Economic Policy Institute 
found that most regulations result in modest job growth or have no 
effect.\1\ Even researchers at the Mercatus Institute, a conservative 
regulatory policy center, acknowledged earlier this year in written 
comments to House Oversight and Government Reform Committee Chair 
Darryl Issa and in testimony before that committee that there little if 
any evidence available to support the contention that at a macro level 
regulations have caused massive job loss in the United States.\2\ There 
is no evidence that any occupational safety and health regulation 
issued by OSHA has had negative job impacts.
    \1\ [Shapiro, Isaac and Irons, John, Regulation, Employment and the 
Economy: Fears of Job Loss are Overblown, Economic Policy Institute, 
    \2\ Williams, Richard, The Impact of Regulations on Investment and 
the U.S. Economy, Attachment to Letter Submitted to Darryl Issa, 
Chaiman, House Committee on Oversight and Government reform, January 5, 
2011; Ellig, Jerry, Regulatory Analysis: Understanding Regulation's 
Effects, Written Testimony Submitted to the House Committee on 
Oversight and Government Reform, February 10, 2011.
    Many business trade associations and others in Washington are also 
claiming that regulations under development by the Obama Administration 
are creating ``regulatory uncertainty'' and this is the major reason 
why businesses are reluctant to invest and create jobs. But that is not 
what business owners themselves are saying. A recent survey by Small 
Business Majority found that the biggest problem small business faced 
was uncertainty about the economy, not government regulation.\3\ A 
recent survey conducted by the National Federation of Independent 
Businesses found that ``poor sales'' was the biggest problem faced 
their members,\4\ and a survey conducted by the Wall Street Journal of 
business economists found that it was the lack of demand, not 
uncertainty about government regulation that was keeping hiring 
    \3\ Small Business Majority, Opinion Survey: Small Business Owners 
Believe National Standards Supporting Energy Innovation Will Increase 
Prosperity for Small Firms, September 20, 2011
    \4\ Dunkelberg, William C. and Wade, Holly, NFIB Small Business 
Economic Trends, NFIB, September, 2011
    \5\ Hollander, Catherine, ``WSJ survey: Lack of demand, not 
uncertainty, keeps hiring down.'' The Wall Street Journal, July 18, 
    Clearly regulations may have costs. But experience has shown 
repeatedly that the costs of regulations are often overstated by 
business groups who oppose these regulations. Moreover, studies have 
found that the actual cost of many government regulations when 
implemented are much less than the costs estimated by the government at 
the time the regulations were promulgated. A 1995 review of major OSHA 
rules by the Office of Technology Assessment found that for most of the 
rules examined, overestimated cost, because the agency had not 
adequately considered advances in technology. The report stated that 
``the actual compliance response that was observed included advanced or 
innovative control measures that had not been emphasized in the 
rulemaking analyses, and the actual cost burden proved to be 
considerably less than what OSHA estimated.''\6\ For some standards, 
such as OSHA's cotton dust standard and vinyl chloride standard, not 
only were the rules less costly than predicted, the rules led to 
technological innovations in the covered industries that made them more 
    \6\ Office of Technology Assessment, Gauging Control Technology and 
Regulatory Impacts in Occupational Safety and Health; An Appraisal of 
OSHA's Analytical Approach, Washington, DC, OTA, 1995.
    Most of the current attacks on government regulations, including 
attacks on OSHA rules are focused solely on the potential cost of the 
regulation to businesses. They totally ignore the benefits of the 
regulations to workers and the public. For the past 14 years, at 
Congress' direction the Office of Management and Budget (OMB) has 
produced an annual report on the estimated costs and benefits of 
government regulations. Every OMB report that has been issued, by 
Republican and Democratic administrations alike, has found that the 
benefits of regulations to the public, workers and the country far 
exceed their costs. The latest OMB report issued in June, 2011, found 
that the estimated annual benefits of major rules reviewed by OMB over 
the last 10 years were between $132 billion and $655 billion, compared 
to the estimated aggregate annual cost of between $44 billion and $62 
billion. For the OSHA rules that were examined, the estimated annual 
benefits ranged from $0.4 to $1.5 billion compared to estimated costs 
of $ 0.5 billion.\7\ These OSHA regulations not only provide a benefit 
to workers by reducing the burden of injuries and illnesses. They also 
benefit employers by limiting workers compensation and insurance 
payments and lost productivity.
    \7\ Office of Management and Budget, Office of Information and 
Regulatory Affairs, 2011 Report to Congress on the Costs and Benefits 
of Federal Regulations and Unfunded Mandates on State, Local and Tribal 
Entities, Washington, DC, 2011.
There is No Tsunami of Workplace Safety Regulations
    The claim that there has been a tidal wave of regulation also is 
not borne out by the facts. According to historical information 
available on OMB's Office of Information and Regulatory Affairs' 
www.reginfo.gov website, during the past two and one half years there 
have 108 major final rules government wide, compared to 116 major final 
rules issued during the last two and one half years of the Bush 
Administration. The number of economically significant proposed rules 
issued during these time periods is also comparable for both 
    And no one who is familiar with regulation at the Occupational 
Safety and Health Administration can honestly claim that there is a 
fast moving tsunami of workplace safety and health regulation in recent 
    It is just the opposite. There is barely a ripple.
    Over the past decade few OSHA rules have been issued. For eight 
years, the Bush administration shut down OSHA rulemaking. Only three 
significant final OSHA rules were issued between 2001 and 2008 
(electrical equipment installation, employer payment for personal 
protective equipment and hexavalent chromium), two of them a result of 
litigation by the unions. Under the Obama administration there has been 
one significant final OSHA rule issued--the cranes and derricks 
standard issued in 2010--a rule that was initiated by the Bush 
administration in 2003 and designated as a high priority, but never 
    Indeed over its entire 40 year history, OSHA's regulatory activity 
has been fairly limited. Since 1971, there have been 34 significant 
health standards issued (some of these updates and revisions for the 
same hazard), and about 50 significant safety standards put in place by 
the agency. (Attachment 1).
    For many serious hazards there are no regulations or regulations 
are woefully out of date.
    The majority of OSHA regulations that are on the books today come 
from industry consensus standards that were adopted right after the 
passage of the Act at Congress' direction. Many of these consensus 
standards were developed in the 1950's and 1960's and based on science 
and technology that is outdated and more than 60 years old. These 
standards do not protect workers.
    The regulatory process itself is not working to produce needed 
regulations in a timely fashion. Layers of additional requirements and 
regulatory analyses have been added by Congress and through executive 
orders. These requirements have made the process more complicated and 
costly and added years to the process. It now takes OSHA 10 years to 
develop and issue a major rule, once it determines a regulation is 
needed. These years of delay put workers at continued risk of disease 
and injury and cost workers their lives.
    Even rules that have broad support from employers, unions and 
workers alike must go through this process, and take years to issue. 
The OSHA cranes and derricks rule was initiated in 2003 under a 
negotiated rulemaking committee of employers, unions and government 
representatives that reached unanimous agreement on a draft standard in 
2004. But due to endless analytical and review requirements, a proposed 
rule was not issued until 2008 and the final rule not promulgated until 
2010. During these years of delay a number of serious catastrophic 
crane accidents occurred in New York, Miami, Las Vegas and other cites 
causing multiple fatalities to workers and the public. Based on OSHA 
risk estimates in the final standard, the six year delay in the rule 
resulted in 132 unnecessary deaths and 1,050 preventable injuries.
    Since taking office the Obama administration has moved to 
resuscitate OSHA's moribund regulatory program. Much of the effort to 
date has been directed at completing rules that were initiated by the 
Bush administration or even earlier, and have been under development 
for years. In addition to the cranes and derricks rule, long overdue 
rules on global harmonization for hazard communication, confined space 
entry in construction, protective equipment for electrical power 
distribution, and silica have been priorities.
    The agency's new rulemaking efforts have focused on rules to 
address serious hazards. These include rules to prevent combustible 
dust explosions, like the 2008 explosion at the Imperial Sugar Plant in 
Georgia that killed 14 workers, the food flavoring chemical diacetyl 
which has caused disabling and fatal lung disease in factory workers, 
and to protect healthcare workers from infectious diseases, including 
pandemic influenza. The agency has proposed several rules to improve 
the usefulness of workplace injury and illness information including 
reinstating a requirement that employers identify which injuries and 
illnesses are musculoskeletal disorders (MSDs) by checking a box on the 
OSHA 300 injury log. And the development of a rule on workplace injury 
and illness prevention programs has been designated as a top priority 
by OSHA Assistant Secretary David Michaels. Given the lengthy 
rulemaking process, except for recordkeeping rules, it is unlikely that 
any of these new initiatives will even be proposed for a number of 
years, with final action being years down the road.
Business Groups Want to Stop All New Regulations, Even Rules on Well-
        Recognized, Deadly Safety and Health Hazards
    For eight years the Bush administration implemented a de facto 
moratorium on Department of Labor rules. The business community 
welcomed this inaction, and is now seeking to block the Obama 
administration from issuing any new protections at OSHA and other 
    At OSHA business groups have focused their efforts on opposing and 
stopping the agency's silica standard, injury and illness program 
prevention rule and recordkeeping rule on MSDs. All of these rules have 
been under consideration and/or development for years. Nothing about 
these rules is extreme or radical. All of them address well recognized 
serious safety and health problems, and seek to do so through the 
application of long standing safety and health practices and regulatory 
    The injury and illness program prevention rule would require 
employers to put in place a program to identify and correct hazards in 
the workplace on an ongoing basis. This systematic approach to 
addressing workplace hazards is the foundation for workplace safety and 
health efforts. This approach has been the basis of all of OSHA's 
voluntary programs and is widely advocated by consensus standards 
organizations and safety and health professionals. Regulations or free 
standing laws requiring safety and health programs have been adopted by 
more than 20 states, including the states of Washington, California and 
Minnesota, which have had requirements for decades. The Reagan 
administration developed detailed guidelines on safety and health 
programs in 1989, and the George H.W. Bush administration explored the 
development of a safety and health program rule. A draft rule was 
developed during the Clinton administration and underwent SBREFA review 
in 1998. The development of a safety and health program rule was a 
priority for OSHA Assistant Secretary John Henshaw during the George W. 
Bush Administration. But the Chamber of Commerce and other industry 
groups objected and the rule was pulled from OSHA's regulatory agenda.
    The history on the MSD recordkeeping rule is similar. For 30 years 
under OSHA's injury and illness recordkeeping rule, employers were 
required to record all work-related injuries and illnesses on the OSHA 
log. For seven categories of illnesses, including disorders related to 
cumulative trauma (CTDs), employers were required to check a box 
identifying the type of illness. This information helped identify 
particular types of illnesses both in the workplace and in national 
statistics and was useful in targeting prevention efforts. For CTDs 
this information identified major growing problems with ergonomic 
hazards in the 1980's and 1990's industries like meat packing and 
automobile assembly and led to major prevention efforts in these 
    In 2001, OSHA revised and updated its injury and illness 
recordkeeping rule, largely in response to industry requests that the 
agency clarify and simplify recording requirements. In that rule OSHA 
replaced the earlier CTD column with two columns, one for identifying 
hearing loss cases and another to identify musculoskeletal disorders 
(MSDs). But at the urging of business groups the Bush administration 
stayed the rule and in 2003 removed the requirement that MSDs be 
identified and deleted the MSDS column from the OSHA 300 injury log. 
This came after the repeal of OSHA's ergonomics standard in 2001, 
meaning that not only were there no rules to protect workers from MSDs, 
there was no easy tool for identifying and tracking these injuries.
    In January 2010, the Obama administration proposed to reinstate the 
MSD column on the OSHA 300 log. Business groups have vigorously 
objected to this simply requirement claiming that it imposes far 
reaching new recordkeeping burdens that will be impossible to meet. But 
the proposed rule does not change OSHA recordkeeping requirements or 
require additional injuries and illnesses to be recorded. It simply 
requires employers to check a box to identify which injuries and 
illnesses are MSDs, similar to requirement that existed for 30 years 
under OSHA's previous recordkeeping rule. Due to business pressure and 
objections, OSHA withdrew the MSD recordkeeping rule from OMB review in 
January in order to receive more input from small businesses about 
their concerns, even though the OSHA recordkeeping rule exempts most 
small businesses from keeping any injury records due to their small 
size or inclusion in an industry designated as low hazard. Those 
special sessions with small business groups were held in April and OSHA 
has taken additional comments from all interested parties. Hopefully 
the agency will move forward and issue this simply requirement to help 
employers and workers identify and take action to prevent MSDs which 
remain the largest source of workplace injuries and illnesses in the 
    OSHA's efforts to regulate silica are also under attack. Silica is 
one of the longest recognized occupational health hazards. It causes 
silicosis, a disabling, sometimes fatal lung disease. It also causes 
cancer. Public health experts estimate that 280 workers die each year 
from silicosis in the United States and thousands more develop 
silicosis due to workplace exposures. Eradicating silicosis has been a 
priority for the Department of Labor for decades starting with efforts 
by Frances Perkins in the 1930's. OSHA first initiated rulemaking on 
silica in 1974 with the publication of an advance notice of proposed 
rulemaking (ANPR). But due to changes in administration and leadership 
that rulemaking was not advanced. In 1996 the Department of Labor 
conducted a major campaign to educate workers and employers about the 
hazards of silica and to reduce workplace exposures.
    The current OSHA rulemaking on silica was initiated in 1997, more 
than 14 years ago. (See Attachment 2 for timeline on the silica 
standard). In its 2002 Fall Regulatory Plan, the Bush administration 
designated a new OSHA silica rule as a regulatory priority. The 
required small business review on the draft silica rule was completed 
in 2003, but years of foot dragging by the Bush Administration stalled 
progress on the rule. The OSHA silica rule was designated as a 
regulatory priority by the Obama administration in 2010. OSHA completed 
the required analyses and peer reviews and submitted the draft silica 
rule to OMB for review under Executive Order 12866 on February 14, 
2011. More than seven months later, it is still under review despite 
the provisions of the EO limiting reviews to 90 days with one 45 day 
extension permitted. While the draft rule has been at OMB, there has 
been a parade of industry groups who have met behind closed doors with 
OMB seeking to have the rule stopped or weakened. They claim that 
present standards are adequate and no further action is required.
    We strongly disagree. As noted earlier, silica remains a 
significant occupational health hazard causing hundreds of deaths from 
silicosis each year, and many more deaths from lung cancer. The current 
silica standards for construction and general industry were developed 
in the 1960's and adopted by OSHA in 1972. The OSHA construction silica 
standard is based on a measurement technique that is obsolete and no 
longer available. Converting this standard to gravimetric terms which 
can be measured allows for construction workers to be exposed to silica 
levels that are more than twice those permitted for general industry. 
The existing silica standards are limited to a permissible exposure 
limit; there are no requirements for employers to monitor worker 
exposures, conduct medical exams for exposed workers or even to train 
workers on the hazards of silica.
    According to OSHA's preliminary risk estimates reducing silica 
exposures to NIOSH's recommended level of 50 ug/m3 would prevent 60 
worker deaths a year--44 from silicosis and 19 from lung cancer, and 
hundreds of cases of non-fatal silicosis annually. By these estimates, 
during the 14 years the silica standard has been under development, 800 
workers have died due to the lack of a protective silica standard.
    We point out that OSHA's silica rule has not yet even been 
proposed. The proper place for to have the debate over the need for the 
standard and it merits are in a public rulemaking before the agency 
with the authority and expertise to issue the rule, where all parties 
have equal opportunity to comment on the agency's proposal and 
analyses, express their views and present evidence. In addition the OSH 
Act provides for public hearings on the rule where all interested 
parties will have the opportunity to testify and to cross examine the 
agency and other witnesses, providing extensive opportunity for input 
and participation in the rulemaking process.
    It is time to move forward with the OSHA silica standard, and get 
on with this rulemaking.
    Another OSHA safety initiative that has also recently come under 
attack is the agency's efforts to protect construction workers from 
roof falls in the residential construction industry. Fatal falls are a 
leading cause of workplace deaths. In 2010 BLS reported 598 fatal 
injuries from falls, with 260 of these deaths in the construction 
industry, including 84 fatalities due to falls in residential 
    The 1994 construction fall protection standard put in place 
requirements for construction employers to utilize fall protection 
measures such as body harnesses and guardrail systems to protect 
workers. But due to industry concerns, in 1995 certain residential 
roofing operations were temporarily exempted from using fall protection 
equipment and methods set forth in the standard. Since that time, fall 
protection equipment has become widely available and industry practice 
has changed. In order to have uniform effective fall protection 
standards in all construction operations, OSHA's labor- management 
Advisory Committee on Construction Safety and industry groups, 
including the National Association of Home Builders asked OSHA to 
rescind the 1995 exemption and apply the 1994 standard in all 
operations. After consulting widely with industry, unions and others 
and receiving public comment, in December 2010 OSHA issued a new 
compliance directive to fully implement the 1994 fall protection 
standard and require the use of fall protection in all residential 
construction operations. This action was also supported by the states. 
Nine state OSHA plans never adopted the temporary exemption, and now 10 
more states have reinstated the residential home building fall 
protection requirements.
    But now, in this current anti-regulatory environment, the home 
builders have changed course and are taking the position that the fall 
protection standard is too complex and difficult to follow. They are 
seeking to block enforcement of the fall protection standard in 
residential roofing operations. Last week, the Chair of the House 
Subcommittee on Labor-HHS Appropriations took up their cause by 
including a prohibition on enforcing the fall protection rule in the 
draft appropriations bill that covers OSHA.
    If we as a country are not willing to protect workers from 
disabling lung disease from exposure to a well recognized hazard like 
silica or from being killed by falls from roofs, we should ask what 
kind of country are we or will we become?
    The United States Should Not Turn Back the Clock and Put Workers In 
Greater Danger. The Country Must Move Forward and Strengthen Worker 
Safety and Health Protections
    For the past forty years as a matter of national law, the country 
has set as it goal and policy the protection of workers from injuries, 
illnesses and death on the job. The framework of government regulations 
and enforcement established by the Occupational Safety and Health Act 
has been successful in reducing exposures to workplace hazards and 
reducing the toll of job injuries, diseases and deaths. We should 
continue on this path and build on this progress.
    We should start by moving forward with needed rules on silica, 
infectious diseases, combustible dust and other major hazards that put 
workers in danger. We should determine how to update permissible 
exposure limits for toxic chemicals, on which there is wide agreement 
that these limits are out of date and need to be modernized. Indeed, in 
March the U.S. of Commerce called for the update of these limits in 
comments to the Department of Labor on its regulatory review. We should 
revive the earlier effort by unions, employers, safety and health 
professionals and the government to come up with a plan for revising 
the PELs either though rulemaking, by statute or both.
    Given its limited resources, OSHA needs to better target its 
enforcement and other programs to workplaces and hazards that pose the 
greatest risks. Better targeting strategies and criteria for 
inspections are needed as are better metrics for evaluating 
effectiveness of programs.
    OSHA enforcement must be strengthened to provide a greater 
incentive to comply and to deter violations. Recently OSHA has taken 
steps in this direction by revamping its enforcement program to focus 
more effectively on severe and repeated violators and to enhance 
penalties for high gravity violations. These policies provide stronger 
enforcement for those employers with significant and severe violations, 
and should be welcomed by employers who make good faith efforts to 
comply with the law.
    But even with these new policies and actions by OSHA, enforcement 
remains relatively weak, in large part due to deficiencies in the OSH 
Act itself. Since the law was enacted in 1970, there have been no 
significant changes in the statute, except for an increase in the 
maximum penalties adopted in 1990. OSHA is one of two agencies exempted 
from the Federal Civil Penalties Inflation Adjustment Act, so unlike 
for most other agencies, there have not even been inflationary 
increases in penalties for violations of workplace safety requirements.
    Under the OSH Act, the current maximum penalty for a serious 
violation of the law is $7,000. This maximum penalty applies to all 
serious violations, even in cases of worker fatalities. In FY 2010, the 
median initial total penalty for fatality cases was just $7,000, 
reduced to $5,600 after contest or settlement, surely not a sufficient 
sanction for violations that are the most grave and result in death, or 
adequate to change employer behavior and deter future violations.
    The OSH Act needs to be updated to strengthen enforcement and to 
provide workers greater protection. The Protecting America's Workers 
Act (PAWA) that has been introduced in this and other recent congresses 
is a good place to start. PAWA would adjust OSHA penalties for 
inflation and keep them up to date. It would set higher maximum 
penalties for violations resulting in worker deaths to ensure more 
adequate enforcement in these cases. It would strengthen criminal 
penalties to make willful violations that result in death and serious 
bodily a potential felony, rather than a misdemeanor. The legislation 
would require employers to abate serious hazards to protect workers 
during the contest of violations, and bring the anti-discrimination 
provisions of the OSH Act into line with other safety and whistleblower 
laws. And the legislation would finally provide coverage for the more 
than 8 million public sector workers who lack safety and health 
protection under the OSH Act.
    Enactment of the Protecting America's Workers Act would bring our 
safety and health law into the 21st century and ensure continued 
progress in reducing job injuries, illnesses and deaths and protecting 
workers on the job.
    In conclusion, I urge the committee and the Congress to reject the 
efforts by some in the business community and others to block and 
weaken government safeguards to protect workers from harm. We should 
not abandon the progress made over the past four decades and turn back 
the clock on our commitment to safer workplaces. Taking that path will 
lead to more workers being injured, diseased and killed on the job. 
That is not the kind of country we are, and it is not the kind of 
country we should become.
    We must maintain the commitment and promise in the OSH Act that 
every worker in this country has a right to a safe job, and the right 
to return home from work safe and sound each day. We must work together 
to make sure that continued progress is made and that promise is 
                              attachment 1

                  Source: Code of Federal Regulations

                    Timeline on OSHA Silica Standard

1972--OSHA adopts 1968 ACGIH TLV of 10 mg/m3  (%quartz + 2) as the 
        general industry permissible exposure limit. The ACGIH standard 
        was proposed in 1968.
1972--OSHA adopts ACGIH TLV of 250mppcf  (5quartz + 5) as the 
        permissible exposure limit for silica in the construction 
        industry. The ACGIH standard was originally set in 1962.
1974--NIOSH issues criteria document recommending silica exposure limit 
        of 50ug/m3.
1974--OSHA issues Advance Notice of Proposed Rulemaking on revising and 
        strengthening the silica standard for general industry and 
1991--National Toxicology Program (NTP) classifies silica as 
        ``reasonably anticipated to be a human carcinogen.''
1996--International Agency for Research on Cancer (IARC) classifies 
        silica as ``carcinogenic to humans.''
1996--Department of Labor launches major campaign on silica to reduce 
        exposures and protect workers from silicosis in general 
        industry, construction and mining. OSHA conducts special 
        emphasis enforcement programs on silica.
1997--OSHA puts silica on the regulatory agenda.
2000--National Toxicology Program (NTP) lists silica as ``known to be a 
        human carcinogen.''
2002--Bush Administration designates a new OSHA silica standard as a 
        high priority in the Fall 2002 Regulatory Plan and Agenda.
2003--The draft silica standard undergoes review by a small business 
        panel under the Small Business Regulatory Fairness Enforcement 
        Act (SBREFA).
2004--The State of New jersey enacts legislation banning the dry 
        cutting and grinding of masonry to prevent silicosis and 
        mandates the use of engineering and work practice controls to 
        limit dust exposures where wet methods are not feasible.
2004-2008--Work on the silica standard stalls. The required peer 
        reviews are not conducted.
2008--Cal/OSHA adopts regulations requiring the use of a dust reduction 
        system in operations in which power tools or equipment are used 
        to cut, grind, core or drill concrete or masonry materials.
2009--International Agency for Research on Cancer (IARC reaffirms the 
        classification of silica as ``carcinogen to humans.''
2009--The Obama administration designates the standard silica as a high 
        priority in the Fall 2009 regulatory agenda and conducts the 
        required peer reviews.
2010--The draft proposed standard is prepared and required regulatory 
        analyses completed.
2011--On February 14, 2011, the draft silica proposed standard is 
        submitted for OMB review under Executive Order 12866.
2011--Outside groups meet with OMB to convey their views on the 
2011--On May 13, OMB's review of the draft proposed silica rule is 
2011--June--August--Industry groups continue to meet with OMB, with 
        many industry groups advocating that the standard be stopped or 
    Chairman Walberg. Thank you, Ms. Seminario.
    Now I turn and recognize David Sarvadi.

                       KELLER AND HECKMAN

    Mr. Sarvadi. Thank you, Chairman Walberg, Ranking Member 
Woolsey, members of the subcommittee. Thank you for the 
opportunity to testify today.
    As I said in my written statement, I am an attorney now in 
Washington, and have been here now for the last 25 years, 
working on health and safety. But my experience goes far back, 
further back than that. I started in 1970 at the University of 
Pittsburgh School of Public Health getting a degree which 
turned out to be industrial hygiene. And I was a certified 
industrial hygienist until last year, for more than 30 years. 
So I have had a fair amount of experience in this area.
    At one time or another, I have actually managed programs on 
the ground in both large Fortune 500 companies and at small 
employers in the U.S. Since 1990, though, I have been 
practicing law here in Washington. What I do now is try to help 
employers understand the regulations and, when they have a 
dispute with OSHA, try to resolve them amicably.
    We have heard a lot about how many regulations there are or 
are not. What I can tell you for sure is that in 1972 or 1973, 
when the initial package of regulations was put together, there 
were about 700 pages in one volume covering general industry. 
Since then, we are now up to two volumes. It is about somewhere 
between 1,000 and 1,200 pages in the first and 300 or 400 in 
the second. It is not to say that a lot of what is in there is 
not necessary, but it is obviously a complex set of regulations 
that people have to deal with, and that is why they come to 
people like me to help.
    One important principle that I learned, though, in teaching 
classes that I have for the last 20 years on how to comply with 
these regulations is that people attending the courses tell me 
that improvement in safety and health comes in very small 
steps. It comes from diligence and persistence and hard work. 
It does not come from big public demonstrations and people 
making large grandiose demonstrations.
    It does take a commitment from management to allocate the 
resources, but it also takes a commitment from the people who 
actually do the work. They have to begin to understand why they 
are required to follow the rules and to follow them.
    And one of the big deficiencies that I have seen over my 35 
years of experience in this area is that we really don't 
understand why people don't follow the rules when they are left 
alone. It is an important question. I don't think there has 
been enough attention given to it, and I think we ought to 
spend a little bit of the money that we have right now 
available to us looking into those kinds of questions.
    We have heard a lot about fall protection today. I think 
one of the questions that just struck me in the last couple of 
comments that have been made is we hear that there have been a 
lot of fatalities and injuries that occur from falls. I 
understand that is true. And every single one of them is a 
tragedy. But the other side of the coin is why have they been 
declining? What is happening out there in the workplace that is 
leading to a reduction in the rates of injuries and illnesses? 
And I am not sure that we have answered that question, nor am I 
sure that we are spending time and money trying to answer those 
questions. So that is a place where I would spend some time and 
    The problem I see today is that OSHA's enforcement policies 
have diverted our attention from the real task of working on 
safety and health. My experience with employers is that they 
see the enforcement and the publicity and the penalties going 
up, and when they encounter OSHA now it is going back to an 
adversarial process, an adversarial relationship that existed 
in the first 25 years of the agency's history.
    During the Bush administration, John Henshaw made a 
specific effort to try to get OSHA attitudinally to change its 
understanding and relationship with employers. And I think he 
succeeded. Because I heard from a lot of employers in that 
period of time telling me that they were getting not only 
enforcement--that is, citations and compliance--but they also 
had a much better opportunity to work with OSHA and try to 
solve the problems. I think that is a good model. I think it is 
one we ought to go back to.
    I think the other problem that we have had to deal with of 
late, and partly as a result of the enforcement posture that 
OSHA has taken, is that we have interpretations of OSHA 
standards that don't make a lot of sense; and I have got a 
couple of examples in the written testimony I have submitted. I 
want to just mention one of them, because it is one that has 
been sort of difficult to deal with, and that has to do with 
something called emergency eyewashes.
    If you are in a chemical plant, no doubt you need an 
eyewash where you have corrosive materials and you are handling 
large quantities of chemicals and they are heated or they are 
pressurized. Lots of different factors involved. But where we 
see OSHA area offices demanding that fully plumbed, expensive 
eyewash fountains be installed in places like retail stores 
around the country, it doesn't make sense from either a safety 
standpoint, nor is it required to provide an adequate degree of 
protection to the employees.
    In the cases that I have been dealing with, in all of those 
cases there has been either a washroom or a sink or other 
source of potable water, which under the current state of the 
law, that is, the interpretations of the review commission 
interpreting OSHA's enforcement context and cases over the 
years, a source of potable water, that is drinkable water that 
is available within a reasonable period of time, is sufficient 
to meet the requirements of the standard. And yet we still have 
area offices who will look at those same situations and decide, 
on very arbitrary grounds, in my opinion, that they should have 
these fully plumbed, fancy eyewashes.
    I think part of the problem is we don't distinguish between 
things that are truly serious and things that any normal, 
reasonable person would agree we don't have to address at the 
outset. We can leave that for a later time, or we don't have to 
spend the resources on it.
    So in addition to----
    Chairman Walberg. The gentleman's time has expired.
    Mr. Sarvadi. I am sorry, Mr. Chairman. I wasn't watching 
    [The statement of Mr. Sarvadi follows:]

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

    Chairman Walberg, Ranking Member Woolsey, and members of the 
Subcommittee, thank you for the opportunity to testify today.
    My name is David Sarvadi. As an attorney, I assist employers in 
complying with Occupational Safety and Health Administration 
regulations and standards, and in resolving disputes with OSHA as to 
the interpretation and application of those rules and standards in 
enforcement cases. My testimony today represents my personal views and 
not those of my law firm or our clients. I am not being paid to 
participate in this hearing.
    I believe I was asked to testify today because, in part, I have 
been deeply involved in the health and safety field for more than 35 
years, including more than 30 years as a Certified Industrial 
Hygienist. Before I started practicing law, I directed the industrial 
hygiene program at a Fortune 500 company, served as a technical staffer 
for a major trade association representing the chemical industry, and 
managed the safety and health department in a small construction 
company. At one time or another, I managed a number of the occupational 
health programs at the companies, including among others hearing 
conservation programs, respiratory protection programs, confined space 
entry programs, programs to control airborne exposure levels to toxic 
chemicals, and the various compliance programs required under OSHA's 
health standards.
    I have practiced workplace safety and health law for more than 20 
years at Keller and Heckman LLP. As part of my practice, I taught week-
long seminars on all of OSHA's general industry standards all around 
the country, covering essentially the same material included in OSHA's 
30hour training course. We have probably had more than 1000 people 
participate in those classes over the years. The attendees were mostly 
the people who had to translate OSHA standards into actions, practices, 
and procedures in their companies, ranging in size from employers with 
fewer than 10 employees to those with hundreds of thousands of 
    One important principle I learned from the participants attending 
those courses is that the improvement in safety occurs in small steps. 
It comes from diligence and persistence, not grandiose public 
demonstrations. Certainly, it takes a commitment from management to 
allocate the resources to the effort and to support the people who 
carry out the day-to-day tasks of building a safety and health program. 
But in the end, it is the responsibility of everyone involved, 
including the people on the front lines in the businesses--whether it 
be a manufacturing plant, retail store, or office--to take personal 
responsibility for making sure they follow the rules. And most of us 
do, most of the time.
    As OSHA turns 40, I think it is time to re-evaluate the current 
system and take a new approach to advance employee safety. In OSHA's 
early days and into the 1990s, OSHA was among the most mistrusted 
federal agencies. A 1999 University of Michigan Business School study 
placed OSHA last among federal agencies in customer satisfaction. That 
year marked the culmination of its misguided effort to regulate 
workplaces through an all-encompassing ergonomics standard. That effort 
reinforced the highly adversarial atmosphere that had abated somewhat 
during the years between the Carter and Clinton administrations.
    During the Bush Administration, OSHA Administrator John Henshaw 
made a concerted effort to put the ergonomics rulemaking behind us and 
help OSHA staff understand that they were not on the front lines, but 
that the people responsible for making sure workplaces are safe are on 
the front lines. As a result, I believe, I heard many business people--
especially small business people--remark that the OSHA field personnel 
were helping employers and employees to solve problems and not just 
looking for citations to issue. The changes in the last few years have 
been highly detrimental to the relationship between OSHA and private 
sector employers.
Heavy-handed Enforcement Is Not The Answer
    My experience is that when OSHA enforcement personnel raise 
legitimate safety and health concerns during an OSHA inspection, 
employers respond in a prompt and responsible manner to take remedial 
measures before any citations are issued, even though it is likely to 
be viewed as an admission of some shortcoming in existing practices. 
The overwhelming majority of employers do not wait for OSHA to issue 
citations before taking those steps, much less seek to delay those 
measures by filing a citation contest. The remedy for the very small 
minority of employers who abuse the current system in that manner is 
for OSHA to use its existing tools to prove that strategy is no longer 
viable. The answer is not to adopt legislation that would subject the 
entire employer community to the collective punishment of an immediate 
abatement requirement that tramples due process rights of employers. 
That approach of developing laws, regulations, and enforcement policy 
based on the assumption that all employers are bad actors has a huge 
price. Rather than advancing workplace safety and health, we achieve 
    Similarly, the changes in OSHA's approach to enforcement made over 
the past 2\1/2\ years have created an atmosphere of antagonism and 
distrust that undermines the willingness of many employers to settle 
rather than contest citations. When OSHA arbitrarily announces that the 
reference period for a repeat citation has been increased from 3 years 
to five years, every large, multi-site employer recognizes that the 
likelihood of an endless string of repeat citations has now become a 
likely reality.
    Employer resentment of OSHA is, in my view, at an all-time high. 
Employers recognize the new focus on increased penalties, but it has 
caught the attention of employers in a way that has been 
counterproductive. OSHA's enforcement zeal has forced even 
conscientious employers to be defensive. Many feel that this new-found 
OSHA aggressiveness results solely in increased penalty numbers and 
diverts attention from actually correcting real problems.
    If OSHA's new approach to enforcement was effective in improving 
workplace safety and health, we should see that reflected in the BLS 
statistics on work-related injuries, illnesses, and deaths in the 
workplace. The most recent set of data to be published were the data on 
fatalities for the 2010 calendar year. The latest data gives us the 
ability to compare fatality rate data for two full years prior to 
OSHA's heightened enforcement efforts with fatality rate data for two 
full years after OSHA's heightened enforcement efforts. If these 
enforcement activities and policies were as effective as proponents 
assert, I believe we should have seen some positive impact on the 
reported rates. Instead what the data show, at least for fatalities, is 
a leveling off of the rate in 2010, at a time when the number of people 
working has declined significantly. See Figure 1.

    More emphasis on safety rather than compliance is needed. I think 
we need to reexamine the entire approach to OSHA enforcement. As noted 
above, OSHA's recent aggressive, and, in my view, frequently 
unreasonable actions, have created an disincentive for many companies, 
who are now resisting settlement discussions and contesting OSHA 
citations. This has two unhappy and unhelpful effects. First, it 
diverts management attention away from the actual needs of workplace 
safety because management resources are tied up in legal battles. 
Second, to the extent resources are available, they are directed toward 
compliance for the sake of compliance rather than advancing workplace 
safety in the most cost-effective manner. Within the last several 
weeks, the safety director for a large retail company commented that he 
is spending all his time on a spate of OSHA inspections while his 
responsibilities for managing and improving the workplace safety and 
health programs are suffering from lack of attention. Is the result of 
OSHA's more aggressive enforcement efforts improved safety? I suggest 
    I suspect there are bad apples in the employment world, just as 
there are bad apples in every institution in the country. However, 
every company I have ever dealt with has been serious about safety. The 
employers we work with do not contest OSHA citations simply to delay 
abatement. If a problem is brought to their attention, and there seems 
to be a reasonable way to eliminate the problem, they will fix it, 
often right on the spot. In many instances, employers with whom I have 
worked have driven innovation to push the bounds of feasibility forward 
for themselves and others in their industry.
    Citations are generally contested because the employer disagrees 
with OSHA's frequently overly broad or inapposite interpretation of the 
cited standard, OSHA's classification of the alleged violation. The 
size of the proposed fine is not a factor because the legal costs 
almost always outweigh the total penalties.
    I have heard that the prevailing employer perception is that ``OSHA 
is about the fine, not the fix.'' This push for heavier enforcement is 
particularly burdensome for small companies, many of which are caught 
between the ``rock'' of aggressive OSHA enforcement tactics resulting 
in high penalties and abatement costs, and the ``hard place'' of 
admittedly expensive litigation costs.
    I handled several recent cases where OSHA pursued enforcement 
actions--inappropriately in my view--when the alleged violations were 
trivial. For example, one of my clients made a minor mistake regarding 
one case on a site injury and illness log. They corrected the mistake 
before the OSHA inspection, but within the six month time period within 
which OSHA has the authority to issue a citation. Demonstrating an 
incredible lack of good judgment, OSHA issued a citation for that item. 
It seemed clear to us that the only reason the area office issued the 
citation was that OSHA headquarters wanted a ``take no prisoners'' 
approach to try to support its misinformed view that there was a 
pervasive under-recording of work-related injuries. The company 
contested the frivolous citation. The ALJ in his decision acknowledged 
the technical violation, but classified it as de minimis, and expressly 
stated in his opinion that OSHA should never have issued the citation 
in the first place. The ALJ noted that these are not the type of issues 
that OSHA should be litigating but OSHA does not seem to care how 
trivial a perceived issue is. The law should not deal with trifles as 
no one benefits from these instances of OSHA's over aggressive 
OSHA Is Aiming At The Wrong Problems and Using Inappropriate Methods to 
        Address Them
    I also have several clients that have been caught in a dispute over 
the need for emergency eyewash stations. Many establishments use 
cleaning chemicals to sanitize their facilities. The concentrated form 
of these chemicals is surely hazardous to eyes, and having a good 
source of clean water is important if eye contact occurs. Under current 
case law, a potable water source, such as a sink or hose, is generally 
sufficient to meet the current standard where the potential contact 
involves limited quantities and work practices with a low probability 
of occurrence. However, OSHA area offices are issuing citations 
claiming that the employers must install expensive eyewash stations 
wherever any such materials are used, without a corresponding 
improvement in safety or--to use a word presently out of favor--
benefit. What makes this situation worse is that OSHA is trying to make 
changes in its rules via a ``re-interpretation'' rather than following 
the statutorily required rulemaking procedures.
    I believe the courts have abandoned their responsibility to oversee 
the executive branch in this regard, and have allowed the agency to 
blur the line between enforcing the existing laws and amending them 
through the issuance of guidance materials and the enforcement process. 
Agencies are making changes to existing rules, which have significant 
economic consequences and impose significant compliance costs without 
giving the public adequate notice, or informing them of the unintended 
consequences of the changes. A recent example is the unilateral 
``reinterpretation'' of the OSHA noise standard that OSHA announced and 
then revoked in response to the strong adverse reaction from the 
Congress and the business community.
    As with many occupational hazards, there are many ways to protect 
employees from noise. Based on dogma, OSHA has a long-stated preference 
for engineering controls, as opposed to personal protective equipment. 
Since 1983, OSHA has interpreted its regulation to require employers to 
install engineering controls when noise levels are extraordinarily 
high, and to allow use of a hearing conservation program using periodic 
testing of employees hearing and ear muffs and plugs below a certain 
level. While there have been proponents of changing this policy for 
many years, the scientific data on whether such programs work and what 
makes them successful has been missing; meanwhile, technology has 
changed. We now have noise-cancelling ear muffs, and, I suppose, ear 
plugs. We have the capability to test the effectiveness of each 
individual's hearing protection to make sure that the reduction in 
noise levels is sufficient based on current knowledge. And we surely 
have the techniques to determine if the use of such programs of the 
last nearly 30 years has been effective. All we have to do is look.
    OSHA did not take any of this into account when it announced that 
it would change its interpretation of the noise standard and henceforth 
require that employers spend money on engineering and administrative 
controls without regard to whether they were sufficiently effective to 
eliminate the need for ear muffs and plugs and all the other aspects of 
hearing conservation programs. OSHA would have required employers all 
over the country to spend resources without considering whether the 
people whom OSHA claims it is protecting would receive any benefit.
Does OSHA Need a New Approach?
    I believe it is time to consider changing our approach to 
occupational safety and health. No one can doubt that, while 
significant progress has been made, we still have a way to go to 
achieve the still greater gains in safe and healthful workplaces 
throughout the U.S. But no one can doubt either, that the present 
system seems to be running out of steam. We are at very contentious 
juncture where it appears that there is only a choice between one of 
two approaches. I do not believe that is the case. So I have some 
recommendations for the Subcommittee to consider.
     Change the present definition of a ``serious violation'' 
under the OSH Act to accept the use of risk assessment to prioritize 
safety issues. In other words, rather than assuming an accident will 
occur, we should take into account the likelihood that an accident will 
    Under OSHA's current interpretation of the law, if there is any 
possibility of an accident, regardless of how remote, resulting in an 
injury that is defined as serious, the violation will be classified as 
serious. In reality, people make choices that balance the severity of 
the outcome with the probability that it will occur. Highly improbable 
outcomes, or outcomes of lesser severity should not be treated as 
having the same priority as conditions that can lead to death or 
serious injuries to a large number of people. A condition in which an 
intentional act can lead to death should not be treated the same as 
circumstances where inadvertent contact could occur without proper 
protection. I believe the Congress needs to create another category of 
violation to capture those of lesser severity or lesser probability, 
and am hopeful that this would be considered in any reform bill.
    A specific example might illuminate the issue. Every adult knows 
that a missing cover plate on an electrical outlet is hazardous, but no 
one really expects that an adult will actually stick a finger in an 
open socket. So while OSHA will issue a ``serious'' violation for a 
broken cover plate, even when it is in an inaccessible location, it 
should not be characterized as the same kind of problem as bare 
electrical conductors in near proximity to a work station where it is 
reasonably foreseeable that a person could inadvertently contact them. 
In its interpretation of the term ``serious'' as applied to citations, 
OSHA has completely disregarded the probability of an event in 
determining the severity of the violation.
     Intentional acts and those based on an employee's 
disregard for safety and health rules should not be automatically 
attributed to a failure of management.
    The present state of the law with regard to what is known as the 
employee misconduct defense is weighted so heavily against the employer 
that employers are almost never excused from liability even when it is 
apparent that an employee disregarded his or her own safety or the 
safety of others. Worse, even if OSHA determines that an employee 
knowingly failed to follow OSHA requirements, the employee is never 
subjected to any government sanction. I have long suggested that 
employees should receive tickets during OSHA inspections for things 
like failing to wear protective equipment and the like where the 
equipment is required and supplied by the employer and the employee 
knew he/she was required to wear it. And the issuance of those tickets 
should be publicly available information and publicized in OSHA press 
releases just as OSHA now sees fit to publicize information on OSHA 
    Failing to take such action sends a message to the employee that 
there are no consequences for their bad behavior and that they are free 
to ignore the requirement in Section 5(b) of the OSH Act that employees 
are to follow safety rules in their workplaces. This approach is 
inconsistent with how OSHA believes employers respond. If employers 
will behave better by having bigger and more frequent punishment, why 
not try it with employees?
    Some will say this is blaming the victim. However, I have had 
bargaining unit safety representatives from union organized employers 
who have bemoaned the fact that the system protects people who flout 
the rules. The employee who breaks a safety rule is not clearly or not 
always the victim. We have worked with employers in countless cases 
where one employee's disregard for safety rules harmed one or many co-
employees. OSHA's approach of overlooking a employee's responsibility 
to comply is a grave disservice to employees at large. Our common 
experience of collective punishment in grade school where the teacher 
punishes everyone because she or he cannot catch the disruptive student 
is not an effective approach to enforcing our laws.
    Under the present system, all employers are deemed guilty until 
proven innocent. Early in her tenure, the Secretary placed employers in 
3 categories: (1) the overwhelming number of responsible employers who 
substantially comply with the applicable legal requirements; (2) the 
category of employers who try to comply, but need some technical 
assistance; and (3) the very small category of employers who ignore 
their legal responsibilities. OSHA's current practices suggest that 
there are few employers in the first category and a small number in the 
second. After stating that OSHA will provide assistance to the second, 
and go after the third category of employers, OSHA then asserts that 
all employers have a catch me if you can attitude that somehow 
justifies the ill-conceived, universally applicable Injury and Illness 
Prevention Program initiative.
    We definitely need to change the enforcement standard in the 
statute. Some interpret current law as requiring OSHA to always issue a 
citation if they see a violation, but I believe this leads to a 
``gotcha'' attitude that is counterproductive. There have been various 
proposals to raise OSHA's penalty structure. I have generally been 
opposed to them because I do not see the penalties as an effective 
motivator for all but the most recalcitrant employers. However, if 
OSHA's penalties are to be increased, there needs to be a trade-off. I 
suggest an appropriate trade off for raising penalties would be first, 
to direct OSHA to waive first instance citations where the employer 
makes a good faith effort to comply, and second, to expand the present 
voluntary protection program by making it part of the statute. Right 
now the three-legged stool of enforcement, standards, and education is 
falling over because the education leg is too short.
     Create standards to hire compliance officers who are 
familiar with the real world.
    Look at the Mine Safety and Health Administration approach where 
inspectors must have a certain amount of experience in mining before 
they can become inspectors. This will help create an enforcement staff 
with a more sound understanding of effective safety and health 
principles. The experience of working gives people perspective on what 
is important and what is a lesser priority.
    The bottom line is that the present path OSHA is on is not 
advancing us to the original goal--to ensure safe and healthful working 
conditions. Instead, this renewed aggressive focus on citations and 
penalties has made employers increasingly wary of OSHA and has reduced 
cooperation, distorted incentives to promote safety and health, and 
diverted resources to unproductive legal battles. Now is the right time 
to talk about a paradigm shift. As OSHA turns 40, I believe we need to 
reflect on what has worked and what can be done going forward to 
enhance effectiveness in protecting our families, friends and neighbors 
in America's workplaces.
    Thank you for your time today.
    Chairman Walberg. That is what they all say. Thank you. 
Thank you.
    I now recognize myself for 5 minutes of questioning and 
will try to keep to that time as well.
    Mr. Korellis, I had the privilege of doing roofing near 
Hammond, Indiana, in Calumet City, 1542 Burnham Avenue, where I 
grew up, 23 years spent there, and I worked for the roofing 
company of Father Walberg and Twin Sons and did a garage and 
house on two occasions there. But I don't play a roofer or 
claim to be a roofer. But I appreciate your testimony.
    But, in your testimony, you discussed the need for 
alternative safety measures other than what OSHA is now 
mandating, and you detail in many steps the necessary planning 
to put these other safety protocols in place. Let me ask you, 
how much time and effort does it take to enact these specific 
    Mr. Korellis. It takes an incredible amount of time, 
Congressman. The 10-step process we are talking for a 
residential dwelling, a dwelling that--you know, an average 
dwelling might cost $5,000 to $10,000 to roof, and each 
individual dwelling has to have its own documents. And it is 
just a gauntlet of paperwork and entirely too cumbersome to 
attempt, if we can even get it approved.
    Chairman Walberg. Any average of what you would say the 
costs or the time?
    Mr. Korellis. No. This is so--I apologize. This is so new. 
We are learning this--we are learning some of this now, trying 
to move forward. But it certainly is not worth the value of 
that type of doing it on a residential dwelling.
    Chairman Walberg. Okay. Since the delay of enforcement 
dates, has OSHA reached out to your company to work with you in 
order to assist in complying with these safety standards?
    Mr. Korellis. No, they have not.
    Chairman Walberg. No effort at all?
    Mr. Korellis. No.
    Chairman Walberg. Okay.
    Mr. Sarvadi, companies regularly enlist the services of 
third parties, I understand, to conduct and report on workplace 
safety audits. Historically, these reports have been considered 
privileged material and thus protected from disclosure. 
However, OSHA has begun to attempt to subpoena these records as 
parts of workplace investigations, as I understand it. In fact, 
a Federal district court in Illinois recently enforced such a 
subpoena, requiring a third-party auditor to hand over an on-
site inspection report. Could you elaborate for us on the 
nature of these reports, why it is inappropriate for OSHA to 
issue these subpoenas? And, as a part of your answer, if you 
would be so good as to explain why we should be encouraging, 
not discouraging employers to use these third-party audits?
    Mr. Sarvadi. Yes. Thank you, Mr. Chairman.
    Chairman Walberg. And you have got 2 minutes.
    Mr. Sarvadi. Thank you.
    The audits that you are talking about generally fall into 
two categories, internal audits that are performed by safety 
and health experts to determine whether the company is 
complying with its rules and with the OSHA standards, and then 
the third-party audits where you hire somebody from the 
    I think they are important for two reasons, one, to bring 
fresh eyes to the individual facility. It is always helpful for 
somebody who is not familiar with the way things are routinely 
done to look at things and see how they should be done.
    For a number of years OSHA has had a policy of not 
requesting these audits in the normal course of events. I think 
what has happened in the last couple of years is that that 
policy has slipped a bit. I actually have a case right now that 
I am working on where we have got an accident investigation--it 
was a very serious accident. The OSHA inspector issued a 
subpoena that has about 30 requests, 30 separate requests in 
it, including routine safety inspections and audits. And, 
frankly, we are not going to give those up very easily. Because 
if we do, we are expecting that they will be used against the 
    And that is really the problem with asking for the audits 
on a routine basis. Certainly there are circumstances where 
other evidence can show that a company is not being responsible 
in doing these things. But if a company is doing the audits for 
purposes of checking its own checklist, as it were, we 
shouldn't be having those audits become public or become part 
of the documents that are used against it in an enforcement 
context. It will discourage them completely.
    And we saw this in the 1990s when this first came up. We 
are seeing it again today as it comes up again.
    Chairman Walberg. So, in other words, it discourages 
efforts to promote safety?
    Mr. Sarvadi. Correct.
    Chairman Walberg. And, rather, just simply hide, take your 
best shot, and hope it works.
    Mr. Sarvadi. I think what will happen and what happened 
before is people stopped doing them entirely, which takes away 
an important tool from management in attempting to make sure 
things are done appropriately in each of the workplaces under 
their control.
    Chairman Walberg. Thank you.
    My time has expired; and I recognize the ranking member, 
Ms. Woolsey, for her questioning.
    Ms. Woolsey. Thank you, Mr. Chairman.
    In response to Mr. Korellis, I have two pieces of 
information that I would like to submit to the record.
    One is a letter to Congressman Ribble from the Department 
of Labor, from Dr. Michaels. And one part of it says something 
that I believe corrects something you said, sir; and I will 
quote just a piece of it.
    IMIS, the Integrated Management Information System records 
from 2005 to 2007 across two sectors, roofing contractors, 
residential home construction, show that there were no 
fatalities when conventional fall protection was used, as 
required in OSHA standards subpart M. A few fatalities--this is 
in parentheses--did occur to individuals who were wearing 
harnesses but were not connected to an anchor point or who had 
unhooked from their lanyard and fell off the roof.
    So I would like to enter that into the record.
    Chairman Walberg. Without objection.
    [The information follows:]

    Ms. Woolsey. And a second piece of information, the U.S. 
Bureau of Labor Statistics, 1992 to 2008, census of fatal 
occupational injuries, shows that commercial injuries on 
roofing has gone down. They were not allowed the exception. 
Didn't ask for it. They didn't get it from the new rules on 
roofing protection. And residential went up considerably.
    So I just think that should be in there. It is a fact. That 
is what we like to make our decisions on. So for the record.
    Chairman Walberg. Without objection.
    Ms. Woolsey. Thank you, sir.
    [The information follows:]

                                                                     FALL FATALITIES
                                                            [Residential vs. Non-residential]
                                                               Num. of fall fatalities   Num. of all fatalities        Percentage of all fatalities
                            Year                                                                                                            Residential/
                                                              Residential      Non-     Residential      Non-     Residential      Non-         Non-
                                                                           residential               residential               residential   residential
1992........................................................          33          162           91          405        36.3%        40.1%         90.5%
1993........................................................          30          206           76          528        39.5%        39.1%        101.0%
1994........................................................          38          261           88          619        43.2%        42.2%        102.3%
1995........................................................          35          267           85          625        41.2%        42.7%         96.4%
1996........................................................          47          262          116          609        40.5%        43.0%         94.3%
1997........................................................          66          285          136          627        48.5%        45.4%        106.9%
1998........................................................          84          266          174          627        48.3%        42.4%        114.0%
1999........................................................          84          248          173          613        48.6%        40.4%        120.2%
2000........................................................         100          243          188          604        53.2%        40.3%        132.0%
2001........................................................          97          292          203          633        47.8%        46.2%        103.4%
2002........................................................         108          243          205          559        52.7%        43.5%        121.0%
2003........................................................         132          209          277          508        47.7%        41.1%        116.1%
2004........................................................         164          251          322          569        50.9%        44.2%        115.3%
2005........................................................         155          220          305          541        50.8%        40.6%        125.2%
2006........................................................         157          246          327          558        48.0%        44.2%        108.7%
2007........................................................         139          274          283          579        49.1%        47.3%        103.9%
2008........................................................         112          208          209          495        53.6%        42.1%        127.3%
Source: U.S. Bureau of Labor Statistics, the Census of Fatal Occupational Injuries, 1992-2008.

Note: Residential places include home, hotel/motel, and residential institution. Nonresidential places include industrial places, places for recreation
  and sport, and public building.

                                       Percentage of all fatalities
                                  Residential      Non-         Non-
                                               residential   residential
Average 92-95...................        40.0%        41.0%         97.6%
Average 96-08...................        49.2%        43.1%        114.1%

    Ms. Woolsey. So, Ms. Seminario, thank you for being here, 
    Ms. Seminario. Good to see you.
    Ms. Woolsey. You are my expert.
    So OSHA has to issue a standard. How long does it take? And 
while it is taking as long as it does, how many lives do we 
    Ms. Seminario. Good question. It now takes, I would say, 10 
years, if we are lucky.
    The cranes and derricks standard, that was a standard that 
was done through a negotiated rulemaking committee, commenced 
by the Bush administration. Everyone agreed on that rule. They 
agreed to an actual text of a draft rule. They delivered it to 
the Department of Labor in 2004. We didn't see a proposal until 
2008, a final until 2010. It had to go through the entire 
process, even though everyone agreed on the rule. And so that 
meant all the analysis, it meant the reviews by OMB, it meant 
SBREFA panel on small businesses, public hearings, as we should 
have. So it is a very, very long process.
    And what we saw with that particular rule, with the delay 
of 6 years, based on OSHA's estimates that that standard on 
cranes and derricks would have prevented 22 deaths, 175 
injuries a year. So we ended up with 132 unnecessary workers 
    You see the same thing on the failure to move forward on 
the silica standard. So these delays have real costs.
    When I started doing this work, standards, you started a 
standard, you went through the process, from start to finish it 
was 2 years, maybe 2 and a half, if it was a complicated rule. 
The process has gotten much more difficult, much more complex 
over the years.
    Ms. Woolsey. Is that because what we are dealing with is 
more complex or is it because the anti-rulemaking people are 
throwing a monkey wrench into it all the way along? Or is it 
just that it is really complicated?
    Ms. Seminario. No, I think there have been a lot more 
requirements that have been put on, some by Congress, the 
Regulatory Flexibility Act, Unfunded Mandates Act, some through 
executive order. So there are many, many, many more 
requirements for review and analysis. And what we are seeing 
now are proposals in the House to even add more to that. And so 
they will just stop the process.
    So I think we need to step back and say, is this process 
working for anyone in terms of the workers, the uncertainty to 
employers? It is not helpful to them for 10 years they don't 
know what is going to happen. So I would say that is an issue 
that we really need to look at.
    Ms. Woolsey. So very quickly, because I don't have much 
time, inflation has changed the value, the real-dollar value of 
OSHA penalties. If penalties were adjusted for inflation, would 
they be more of a deterrent?
    Ms. Seminario. Well, they would be more in line with 
today's values. In terms of whether they are a deterrent, I 
think that goes to the effectiveness of OSHA's enforcement.
    One thing I would agree with Mr. Sarvadi on is that we 
should be distinguishing in our enforcement actions between 
those things which are really, really serious and those things 
that have really, really serious impacts. Right now, we don't.
    One of the things in legislation you put forward would say 
we should have a higher penalty when there is a violation, 
serious, willful, that kills somebody. That is the gravest 
incident kind of violation you could have. Right now, we don't 
make that kind of distinction, and I think we should.
    Ms. Woolsey. Okay. Thank you.
    Chairman Walberg. I thank the gentlelady.
    I recognize the gentleman from Indiana, Mr. Rokita.
    Mr. Rokita. Thank you, Mr. Chairman.
    I want to take some time and talk about these anti-
rulemaking people, quote-unquote.
    First question is to Mr. Sarvadi. Now, we have heard 
testimony from--expert testimony from Ms. Seminario, quote-
unquote expert testimony, that suggests that, quote, some would 
like to return to the days when there were no regulations and 
enforcement and employers were free to do whatever they chose. 
That comes from the written testimony.
    And then we heard verbal testimony that went along the 
lines of something like this. Those that want to get rid of 
useless, burdensome regulations are really those that want no 
    It is as if I was on the floor of the United States House. 
How can we dial back the rhetoric here? Not name call people as 
anti-rulemaking people? And are your clients really asking for 
no rules? Is that what the situation is?
    Mr. Sarvadi. Nobody that I work with has ever asked us to 
get rid of all of the rules. That is not the problem. The 
problem has long----
    Mr. Rokita. So you don't represent anarchists?
    Mr. Sarvadi. I don't represent anarchists.
    Mr. Rokita. I would like the record to reflect that.
    Mr. Sarvadi. Among others.
    I think the problem that we have is that the rhetoric has 
gotten out of hand. I was testifying here 5 or 6 years ago, and 
we talked about some of the same issues.
    The question of penalties is a good one, a good example. 
Ms. Seminario has a viewpoint about what penalties should be. 
And what I can tell you is that penalties for people who really 
are not the ones that we should be targeting, have no impact on 
their decision-making to any significant degree, whether it is 
for compliance purposes or for challenging the citations that 
OSHA issues, penalties get important for people who are 
recalcitrant. To the extent that we are focusing on them, that 
is where the focus of enforcement needs to be.
    So I think we have agreement on that, and I think if we 
could come up with a better way to deal with that kind of thing 
and figure out who the bad actors really are, then we could 
focus the enforcement on that.
    I do want to take issue with one thing that Ms. Seminario 
just said, though, that is important. The idea that somehow we 
should scale penalties on the basis of the outcome of the 
accident that occurs is, it seems to me, extremely unfortunate. 
And that is because, in my experience, the 35 years that I have 
been doing health and safety and all of my training in graduate 
school and later, the outcome of an accident is very often the 
result of luck, not because somebody didn't do some thing.
    The example of falling off a roof is a good example. 
Falling off a roof, whether or not you are killed or seriously 
injured depends on how you land, how high the roof is, and all 
the rest of these factors. The fact that a fatality occurs is 
not necessarily related to the violation of the fall protection 
rule or whatever rules happen to be in place, even though that 
is certainly a factor.
    So if we start calibrating penalties on the basis of the 
outcome, we are not going to have people focused on how to 
prevent the injuries begin with, we are going to have them 
focused on how to avoid the outcome and the enforcement that 
eventually follows from that.
    Mr. Rokita. Thank you, Mr. Sarvadi.
    Mr. Korellis, are you an anarchist?
    Mr. Korellis. I am not.
    Mr. Rokita. Do you have anything to add?
    Mr. Korellis. Yes. I want to start right off with this 
photo, which is extremely deceiving. This is not roofing work. 
This is home building, carpentry, construction work.
    Mr. Rokita. Great point, actually.
    Mr. Korellis. Yes. We don't go up there with holes and 
rafters exposed. The roof is there. We are generally tearing 
off existing roofing, having to move large amounts of material 
around, which is not this situation. Eighty percent of all 
roofing is reroofing. And everything OSHA did, and even this, 
everything is focused on new construction. We are working with 
reroofing and the hazards and the safety precautions we need to 
take to that.
    These other items of guard rails, of safety nets, 
scaffolding, we can't put those around your homes. We would 
tear up your whole entire lawn and again turn a $5,000, $10,000 
job--we would double it. Our only option is personal fall 
arrest systems, truly, which aren't foolproof.
    Congresswoman Woolsey, you mentioned that commercial 
construction falls have decreased. Well, personal fall arrest 
systems aren't utilized on low slope. All those commercial 
buildings, they are not even utilized on. What we are actually 
asking for is something similar to what California has. You do 
have the option to still use slide guards on these roofs that 
OSHA is taking away. But California still has that option, and 
we are looking for something along that lines.
    Putting these fall protections all around the perimeter of 
the roof, we are going to have people hanging off the roof 
installing these fall protection systems, exposing them to 
greater hazards than if they weren't using them. And they have 
to be installed and taken off. When you tear the roof off, they 
have got to come off. You got to put them back on to put the 
roof on.
    We are a union shop. Every one of my employees gets one of 
those lifelines. Every one of my employees are OSHA 10-hour 
certified at a minimum. Most of them are OSHA 30-hour. We 
haven't had a fatal fall in 51 years of our business, and those 
guys think this is crazy what we are trying to make them do.
    Mr. Rokita. I thank you, Mr. Chairman.
    Chairman Walberg. I thank the gentleman, and I thank the 
panel for the insights that you brought to our consideration, 
and we do want to make it a considered effort as we look 
    At this point, I will recognize the ranking member for any 
closing comments that she might have.
    Ms. Woolsey. Thank you, Mr. Chairman.
    I would just like to ask the gentleman from Indiana if you 
have proof that they are not anarchists. I mean, where did you 
go to get that information? Are you just going to take their 
word for it or can you prove that to us?
    Mr. Rokita. I am going to read their testimony.
    Ms. Woolsey. All right. There you go.
    So, Mr. Chairman, today we heard about the human costs that 
occurs when OSHA isn't able to do its job. The Republican 
riders added to the House appropriations draft bill will 
actually make this worse by delaying OSHA's current efforts to 
protect workers. And, make no mistake, there will be human 
consequences if these riders ever find their way into law.
    Diane Lillicrap of St. Louis sent the committee a statement 
regarding a crane accident in the St. Louis area that killed 
Steven, her 21-year-old son, while he was dismantling a 100-ton 
crawler crane in 2009. Diane is also safety manager at a 
Fortune 500 company.
    She says in her brief statement, and I quote her, because 
Steven had never received training on fall protection, his 
lanyard was tied off to a live cable. The crane operator 
stepped out of the cab, asked Steven if he was ready to move. 
While the crane was moving forward, the operator, who could not 
see Steven, decided to start lowering the gantry. Steven was 
sucked into the draw works of the crane by the lanyard he was 
wearing. His life ended as the firefighters were trying to 
rescue him.
    The OSHA rule for cranes and derricks, she continues, that 
was in place at the time of Steven's death dated back to 1971. 
Many people in the industry felt this standard was obsolete, 
and they asked OSHA to modernize it. There had been many 
technical changes made to the machinery since the time the 
first standard was issued. After a 7-year rulemaking process, 
OSHA issued a new crane rule in July of 2010. It was a year and 
a half too late for my son Steven. I believe that if the new 
OSHA standard had been in place and followed on February 3, 
2009, Steven would still be here today. Several provisions in 
the OSHA rule could have saved Steven's life, unquote.
    I would like to offer the entire statement, Mr. Chairman, 
for the record.
    Chairman Walberg. Without objection.
    [The information follows:]

                 Prepared Statement of Diane Lillicrap

    My name is Diane Lillicrap. I am the mother of Steven Lillicrap, 
who at the age of 21 lost his life while dismantling a 100-ton crawler 
crane on February 3, 2009. Steven was an apprentice Operating Engineer 
for Local 513. He was called out of the hiring hall to work for a 
contractor in St. Louis, MO. Steven learned about cranes on the job. 
You don't learn about cranes from the Union until you are a 3rd year 
apprentice. Steven's mentor was the crane operator. The crane operator 
never wore fall protection, and never showed Steven how to use it. He 
never told Steven or showed Steven where anchor points were on the 
crane. In fact, there were no anchor points on the crane. So where do 
you tie off if no one shows you?
    The day of the fatal accident the company Steven was working for 
was dismantling the crane to move the machine to another job site. The 
General Contractor on this job site had a 100% tie off rule for fall 
protection. Steven had just finished rigging and removing the 
counterweight of the crane with the help of a support crane. The next 
move was to prepare to pull the pins off the gantry. Before they could 
do this step, the crane had to be moved forward a couple of feet 
because the crane was in a tight area and they need more room to 
maneuver it. Steven was standing near the draw works of the crane. 
Because Steven had never received training on fall protection, his 
lanyard was tied off to a live cable. The crane operator stepped out of 
the cab and asked Steven if he was ready to move. While the crane was 
moving forward the operator (who could not see Steven) decided to start 
lowering the gantry. Steven was sucked into the draw works of the crane 
by the lanyard he was wearing. His life ended as the firefighters were 
trying to rescue him.
    The OSHA rule for Cranes & Derricks that was in place at the time 
of Steven's death dated back to 1971. Many people in the industry felt 
this standard was obsolete and they asked OSHA to modernize it. There 
had been many technological changes made to the machinery since the 
time the first standard was issued. After a seven-year rulemaking 
process, OSHA issued a new crane rule in July 2010. It was a year-and-
a-half too late for my son Steven. I believe that if the new OSHA 
standard had been in place and followed on February 3, 2009 Steven 
would still be here today. Several provisions in the OSHA rule could 
have saved Steven's life, including:
    1. Assembly/disassembly of a crane must be directed by a person who 
meets the criteria for both a competent person and a qualified person, 
or by a competent person who is assisted by one or more qualified 
persons (``A/D director '').
    2. Before commencing assembly/disassembly operations, the A/D 
director must ensure that the crew members understand all of the 
    a. Their tasks.
    b. The hazards associated with their tasks.
    c. The hazardous positions/locations that they need to avoid.
    3. During assembly/disassembly operations, before a crew member 
takes on a different task, or when adding new personnel during the 
    4. Protecting assembly/disassembly crew members out of the 
operator's view.
    5. Where provisions of this standard direct an operator, 
crewmember, or other employee to take certain actions, the employer 
must establish, effectively communicate to the relevant persons, and 
enforce, work rules to ensure compliance with such provisions.
    6. For assembly/disassembly work, the employer must provide and 
ensure the use of fall protection equipment for employees who are on a 
walking/working surface with an unprotected side or edge more than 15 
feet above a lower level, except when the employee is at or near draw-
works (when the equipment is running), in the cab, or on the deck.
    OSHA regulations and standards are put in place to protect workers. 
We all deserve to be taught to do our jobs safely. We shouldn't have to 
learn by the mistakes, injuries, illnesses and fatalities of our co-
workers. Going to work should not be a grave mistake.
    Ms. Woolsey. So, in closing, I believe we need to work 
together, absolutely, anarchists or not, to cut the red tape 
that keeps OSHA from issuing its standards in a timely manner. 
Because we have to carry out OSHA's statutory mission, and that 
is to assure, as far as possible, every working man and woman 
in the Nation safe and healthful working conditions and to 
preserve our human resources.
    With that, Mr. Chairman, I yield back to you.
    Chairman Walberg. I thank the gentlelady.
    I ask for unanimous consent to include in the record 
statements from the Associated Builders and Contractors and the 
Sikh Coalition.
    Hearing none, they will be included.
    [The information follows:]

                       Associated Builders and Contractors,
                                                   October 5, 2011.
Hon. Tim Walberg, Chairman; Hon. Lynn Woolsey, Ranking Member,
Subcommittee on Workforce Protections, Committee on Education and the 
        Workforce, 2181 Rayburn House Office Building, Washington, DC 
    Dear Chairman Walberg and Ranking Member Woolsey: On behalf of 
Associated Builders and Contractors (ABC), a national association with 
75 chapters representing 23,000 merit shop construction and 
construction-related firms with nearly two million employees, I am 
writing in regard to the subcommittee hearing titled, ``Workplace 
Safety: Ensuring a Responsible Regulatory Environment.''
    As builders of our nation's communities and infrastructure, ABC 
members believe exceptional jobsite safety and health practices are 
inherently good for business. They understand the importance of common-
sense regulations that are based on solid evidence, with appropriate 
consideration paid to implementation costs and input from the business 
    Recent regulatory proposals and upcoming actions from the 
Occupational Safety and Health Administration (OSHA) have created 
economic uncertainty for employers and threaten to impose excessive and 
potentially crippling costs that could ultimately impact job creation 
and stifle growth in the construction industry. ABC has expressed 
concerns about several such proposals, including:
     Injury and Illness Prevention Program (I2P2): Though still 
at the ``pre-rule'' stage, OSHA's ``highest regulatory priority'' could 
mandate that all employers continually ``find and fix'' workplace 
hazards, regardless of their severity. This could potentially lead to 
circumstances in which full compliance is unattainable.
     Occupational Exposure to Crystalline Silica: OSHA plans to 
propose more stringent controls and monitoring of worksite exposure to 
silica, which many experts believe would be technologically and 
economically unfeasible, especially in construction. In addition, it is 
unclear how OSHA plans to enforce tighter requirements, as the agency 
is unable to appropriately enforce the current standard.
     Musculoskeletal Disorder Recordkeeping: OSHA has proposed 
a revision to existing injury and illness reporting requiring employers 
to identify ``musculoskeletal disorders'' (MSDs) separately from other 
types of workplace incidents. OSHA's low cost estimates for the 
proposal allowed the agency to bypass requirements of the federal 
regulatory process that would have allowed for a more in-depth economic 
analysis. While OSHA has temporarily withdrawn the proposal, the agency 
plans to re-issue it at a later date.
     Redefinition of ``Feasibility'' in Noise Exposure 
Standard: Issued outside the formal noticeand-comment process required 
by the Administrative Procedure Act, OSHA proposed to change existing 
noise exposure standards (which would involve substantial new costs) 
without explaining why such action was necessary. While OSHA has 
temporarily withdrawn the proposal, it is unclear whether it will be 
re-issued at a later date.
    ABC strongly supports comprehensive regulatory reform, including 
across-the-board requirements for federal agencies to evaluate the 
risks, weigh the costs and assess the benefits of regulations. Existing 
regulations should be reviewed periodically to ensure they are 
necessary, current and cost-effective for businesses to implement. 
Furthermore, agencies, including OSHA, must be held accountable for 
full compliance with existing rulemaking statutes and requirements when 
promulgating regulations, and should not seek to circumvent existing 
checks and balances within the federal regulatory framework.
    We appreciate your attention to this important matter and look 
forward to working with you on reforming burdensome regulations placed 
on the business community.
                       Corinne M. Stevens, Senior Director,
                                               Legislative Affairs.
                                                   October 5, 2011.
Hon. Tim Walberg, Chairman; Hon. Lynn Woolsey, Ranking Member,
Subcommittee on Workforce Protections, Committee on Education and the 
        Workforce, 2181 Rayburn House Office Building, Washington, DC 
    Dear Chairman Walberg and Ranking Member Woolsey: The Sikh 
Coalition submits this letter to the Subcommittee on Workforce 
Protections to express concern about Occupational Safety and Health 
Administration (OSHA) regulations that may hamper the ability of Sikhs 
and other religious minorities to enjoy equal employment opportunity. 
We respectfully request that this letter be incorporated into the 
official hearing record because it illustrates how poorly-crafted 
workplace safety regulations can have a deleterious impact on equal 
employment opportunity.
    By way of background, the Sikh Coalition is the largest Sikh civil 
rights organization in the United States. The Sikh religion was founded 
over five centuries ago in South Asia and is presently the fifth 
largest world religion, with more than 25 million adherents throughout 
the world. Sikhs are religiously required to keep their hair and beards 
uncut. Throughout history, Sikhs have vigorously defended their 
articles of faith against persecution, and it is in this spirit that 
Sikhs continue to strive for religious freedom in workplaces across the 
United States by challenging laws that have a discriminatory impact on 
    According to OSHA's current respiratory protection standard, 
employers ``shall not permit respirators with tight-fitting facepieces 
to be worn by employees who have * * * [f]acial hair that comes between 
the sealing surface of the facepiece and the face or that interferes 
with valve function[.]'' \1\ Although we appreciate the importance of 
workplace safety, this OSHA standard categorically assumes that bearded 
individuals cannot safely wear respirators with tight-fitting 
facepieces and may accordingly violate the Religious Freedom 
Restoration Act (RFRA). Enacted in 1993, RFRA allows the federal 
government to substantially burden an individual's exercise of religion 
only by proving that its application of the burden furthers a 
compelling governmental interest by the least restrictive means.\2\ In 
Potter v. District of Columbia, the U.S. District Court for the 
District of Columbia concluded that local fire department regulations 
requiring religiously bearded individuals to shave violated RFRA; in 
the course of doing so, the court noted that some religiously bearded 
plaintiffs repeatedly passed safety tests for gas masks and that clean 
shaven individuals fail such tests with regularity.\3\
    \1\ Occupational Safety and Health Administration, Occupational 
Safety and Health Standards, Personal Protective Equipment, Respiratory 
Protection, 29 CFR 1910.134(g)(1)(i)(A), available at http://
    \2\ See Religious Freedom Restoration Act of 1993, 42 U.S.C. Sec.  
2000bb-1 (2000).
    \3\ See Potter v. District of Columbia, No. 01-1189, 2007 WL 
2892685 (D.D.C. Sept. 28, 2007).
    These are not theoretical concerns. Earlier this year, 34 local, 
state, and national civil rights organizations wrote to California 
Governor Jerry Brown to express concern about restrictive grooming 
policies at the California Department of Corrections and Rehabilitation 
(CDCR) that forbade a Sikh from working as a corrections officer on 
account of his beard.\4\ Although Sikhs in Armed Forces throughout the 
world--including the U.S. Army--tie or groom their beards in ways that 
enable them to wear respirators in compliance with strict safety 
requirements, the CDCR does not even allow Sikh job applicants to take 
a respirator fit test to demonstrate that they can comply with safety 
requirements. We reject this ``armchair'' approach to workplace safety 
and hope that OSHA will adopt a more nuanced standard in consultation 
with our organization. If OSHA fails to do so, the agency may not only 
violate RFRA but also empower state agencies like the CDCR to continue 
denying equal employment opportunities to Sikhs and other religious 
minorities, who are needlessly forced to make a false choice between 
religious freedom and a job.
    \4\ See http://tinyurl.com/5u5f7ds
            Respectfully submitted,
                                             Rajdeep Singh,
                                        Director of Law and Policy.
    Chairman Walberg. I certainly want to make it very clear 
there is no intent I think on anyone on this committee, either 
party, to roll back regulations to days gone by when there was 
nothing but danger. We want responsible regulations that foster 
jobs and safety on the jobs, as I have said numerous times, so 
that we can know that workers consistently go to a workplace 
that is safe but then can go back to that same workplace the 
next day having a job that is secure and ongoing.
    I am not going to ask this be submitted for the record in 
comments about anarchists and hobbits or whatever else we might 
have, but I do make this not only to show my recently caught as 
of Monday 16-inch rainbow trout here----
    Ms. Woolsey. You braggart.
    Chairman Walberg. You bet I am a braggart. But it was 
done--and I will make the record straight. It was done at a 
trout farm. You know, how can't you catch one even on my fly 
rod with a fly tied?
    I bring this up primarily to say the testimony I heard from 
this entrepreneur, who has been in business since 1971, has 
been through all sorts of regulations, specifically in the area 
of agriculture and aquaculture and in Michigan--and it was 
brought up today about Michigan's standards but that hasn't 
been for several years known to really want to work with its 
job core that is out there, employers, and has made it very 
difficult. And we have seen too many go to Indiana, of our jobs 
and our businesses.
    But this gentleman informed me that it has been a breath of 
fresh air in the last 7, 8 months to be before the Department 
of Agriculture and the regulators there and have them now--
total change of perspective and saying, how can we help you? 
How can we support your efforts to supply jobs to do business 
in the State of Michigan in agriculture? How can we work 
together to make that happen?
    Before this, he indicated to me that it was always with 
fear and trepidation he came before a regulatory committee in 
Agriculture and was questioned as if he was already a violator, 
as opposed to saying, we want to make it work. How can we do 
    That is what we are looking for here in our efforts. 
Regardless of what the Appropriations Committee does or 
anything else, we do have purview here on these issues of 
regulation. A reference was made to making sausage and making 
sure that sausage not only came out well but didn't humans 
involved with it. We have had legislation compared to sausage 
over the years, and some of that sausage has been unsavory and 
hurtful to an economy and to jobs and to good efforts in 
society. We do not want to continue bad sausage making in 
policy, government policy, regulations, as well as laws.
    Today, we have all had the opportunity to hear from a 
cross-spectrum of interested voices. I don't want to say from 
both sides. I think we are on the same side. But we have 
different perspectives.
    But I have also very clearly heard, as we have had experts 
in the field who actually deal with this day in and day out at 
the job site, that there are differences. You know, whether you 
are new home construction or whether you are reroofing, it is a 
difference. There are means of attaching yourself to studs with 
scaffolding and with support systems that are very much 
different and usable compared to when you are working with a 
pre-existing roof situation.
    All that to say I would encourage our regulators and our 
industry to spend time together. Yes, it is cumbersome. Yes, it 
sometimes takes more time. But, ultimately, the outcome I would 
hope to be the case where the home builders and the roofers and 
the regulators come to an understanding, or the crane 
operators--we could go across the board--that we come to a 
setting where there are best-case scenarios, best practices in 
place put together in a cooperative effort.
    The ranking member and I and our staff had the privilege of 
going 900 feet underground in a mine just recently. And then an 
hour--almost an hour back to the actual work site underground, 
going from Pennsylvania into West Virginia, and seeing some 
amazing work being done. And we all came out alive, and I am 
looking around to make sure that we did. We are all here.
    There are regulations in place that are necessary. But we 
also saw in that oversight opportunity, we also saw a company 
that was willing to establish best-case scenarios made by best 
practices and were forward thinking, went beyond regulators in 
certain cases. Now, I think that is information that ought to 
be on the table. And I think we ought to take the time to do 
that and listen to the sides, as opposed to putting ourselves 
at risk with a one-size-fits-all package in order to get the 
regulations in place.
    Let me end by saying this. In a 2010 study by the Small 
Business Association, they indicated by 2008 the cost of 
complying with Federal rules and regulations already exceeded 
$1.75 trillion a year. That is real money, even for those of us 
who sit in the halls of Congress.
    The Obama administration in the first 26 months, in the 
record, imposed 75 new major rules, costing the private sector 
more than $40 billion. That again is real money, some of which 
is important and necessary. But I think we ought to be very 
careful to make sure that that is the case.
    This July, regulators imposed--and this is across the 
board, not just OSHA--regulators imposed a total of 379 new 
rules that will cost more than $9.5 billion. Now, that is a 
    We will never have a total safe society. We want a safe 
society, but we also want a productive society that continues 
to move us beyond any other economy in the world, with people 
who are employed. Because jobs make the difference. And if we 
want demand, we want people employed so they can demand the 
things that come with the ability to work and spend, save, 
invest, be entrepreneurial, and even at times take risk in this 
great capitalistic society.
    So, having said all that, I appreciate the testimony today. 
I appreciate the attendance of the committee, the questions 
that went on. And we do take this seriously and will continue 
our productive process.
    Ms. Woolsey. Before you come down with the gavel, Mr. 
Chairman--I think I got in--I have another CRS report that 
actually discredits those numbers you just said. Could I put 
them into the record?
    Chairman Walberg. With a temptation to not.
    Ms. Woolsey. Thank you.
    Chairman Walberg. Being such a nice guy who wants to keep 
that reputation, without objection, they will be entered.
    Ms. Woolsey. Thank you.
    [The information follows:]

    Chairman Walberg. Having said that and completed that, this 
committee stands adjourned.
    [Whereupon, at 12:06 p.m., the subcommittee was adjourned.]