[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
WORKFORCE SAFETY: ENSURING A
RESPONSIBLE REGULATORY ENVIRONMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, OCTOBER 5, 2011
__________
Serial No. 112-42
__________
Printed for the use of the Committee on Education and the Workforce
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Bob Goodlatte, Virginia Lynn C. Woolsey, California
Duncan Hunter, California Ruben Hinojosa, Texas
David P. Roe, Tennessee Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania John F. Tierney, Massachusetts
Tim Walberg, Michigan Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee 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
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
TIM WALBERG, Michigan, Chairman
John Kline, Minnesota Lynn C. Woolsey, California,
Bob Goodlatte, Virginia Ranking
Todd Rokita, Indiana Donald M. Payne, New Jersey
Larry Bucshon, Indiana Dennis J. Kucinich, Ohio
Trey Gowdy, South Carolina Timothy H. Bishop, New York
Kristi L. Noem, South Dakota Mazie K. Hirono, Hawaii
Dennis A. Ross, Florida George Miller, California
Mike Kelly, Pennsylvania
C O N T E N T S
----------
Page
Hearing held on 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
WORKFORCE SAFETY: ENSURING A RESPONSIBLE REGULATORY ENVIRONMENT
----------
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
possible.
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
workers.
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
subject.
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
much.
[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
job.
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.
Introduction
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
streamlining.
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
industry.
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
own.
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.
Conclusion
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
20515.
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
record.
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
process.''
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
installed.
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
themselves.
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
home.
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.
Sincerely,
William A. Good, CAE,
Executive Vice President.
Enclosure: BLS Statistics on Residential and Nonresidential Falls in
Roofing
______
[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
20515.
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:
http://www.cancer.org/acs/groups/content/@nho/documents/document/
occupationandcancerpdf.pdf.
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.
Sincerely,
Christopher W. Hansen,
President.
______
------
------
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.
STATEMENT OF HON. DAVID MICHAELS, ASSISTANT SECRETARY,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT
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
questions.
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
lives:
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
percent.
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
standard.\1\
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\1\ http://www.cdc.gov/niosh/docs/2000-108/pdfs/2000-108.pdf
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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
suffering.\2\
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\2\ Liberty Mutual Research Institute for Safety, 2010 Liberty
Mutual Workplace Safety Index, available at http://
www.libertymutualgroup.com/omapps/ContentServer?c=cms--
document&pagename=LMGResearchI nstitute/cms--document/
ShowDoc&cid=1138365240689.
---------------------------------------------------------------------------
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
off.
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
challenges.
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
reputation.
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
illuminated.
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
enforcement.
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
budget.
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
effort.
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
communities.
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\
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\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.
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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.
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\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.
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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.
Conclusion
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
directive?
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
out.
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
that?
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
forward.
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
it.
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
appreciative.
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
out.
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
program.
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
problem.
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.
Bucshon.
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
finding.
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
things.
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
literature.
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
public.
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
cantaloupes.
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
input?
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,
obviously.
Mr. Rokita. I am just asking. You see if you can learn
something.
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
families.
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
extended.
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
sufficient.
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
bolts?
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
here.
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
cost.
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
roof?
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
must.
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
that.
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
close.
So, having said all of that, let's move to our first
witness. And I will ask Mr. Pete Korellis.
STATEMENT OF PETE KORELLIS, PRESIDENT,
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
roofs.
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
example.
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
protection.
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
avoid.
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.
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\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.
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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\
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\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.
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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
definition.
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\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.)''
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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.
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\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
colleagues.
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.
STATEMENT OF PEG SEMINARIO, DIRECTOR,
HEALTH AND SAFETY DEPARTMENT, AFL-CIO
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
requires.
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
enforcement.
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
public.
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
abandoned.
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
effective.
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
harm.
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
alone.
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.
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\1\ [Shapiro, Isaac and Irons, John, Regulation, Employment and the
Economy: Fears of Job Loss are Overblown, Economic Policy Institute,
2011]
\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.
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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
down.\5\
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\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,
2011.
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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
productive.
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\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.
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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.
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\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.
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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
administrations.
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
years.
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
completed.
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
agencies.
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
approaches.
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
sectors.
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
country.
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
construction.
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
fulfilled.
______
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
construction.
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
standard.
2011--On May 13, OMB's review of the draft proposed silica rule is
extended.
2011--June--August--Industry groups continue to meet with OMB, with
many industry groups advocating that the standard be stopped or
weakened.
______
Chairman Walberg. Thank you, Ms. Seminario.
Now I turn and recognize David Sarvadi.
STATEMENT OF DAVID SARVADI, PARTNER,
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
effort.
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----
[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
employees.
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
gridlock.
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
not.
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
enforcement.
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.
Recommendations:
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
occur.
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
citations.
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
plans?
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
outside.
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
company.
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/
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,
Peg.
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
lose?
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
killed.
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
regulation.
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
forward.
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
following:
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
operation.
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
20515.
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
community.
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
20515.
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
Sikhs.
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://
www.osha.gov/pls/oshaweb/owadisp.show--document?p--id=12716&p--
table=standards
\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?
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
concern.
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.]