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Remarks by

DAVID MICHAELS
Assistant Secretary of Labor
For Occupational Safety and Health

Joint meeting
National Capital Chapter, American Society of Safety Engineers
and
Potomac Section, American Industrial Hygiene Association

Washington, D.C.
Thursday, March 25, 2010

Linked Through History

Today, March 25, marks the 99th anniversary of the Triangle Shirtwaist factory fire. On that day in New York City, one of the witnesses, watching helplessly in the crowd at the base of the garment building as women and girls jumped to their death rather than be burned alive, was Frances Perkins — a young community activist, FDR's future Secretary of Labor, and the woman for whom the building in which we are meeting is named.

Six months after 141 women and girls were killed in that workplace tragedy, the American Society of Safety Engineers was established.

In 1939, six years into Frances Perkins' 12 years as Secretary of Labor, AIHA was founded. Five years later AIHA made its first attempt to affect legislation when the association advised the federal government to label solvents as hazardous materials.

So, on this day, we are reminded that our organizations are old friends whose bonds have been forged through the preventable deaths of our fellow citizens and our desire for workplace reform.

I'm also aware that among the workers killed in the Kleen Energy plant explosion last month in Connecticut was Chris Walters, an ASSE member since 1981 who worked as a safety professional for more than 20 years. OSHA joins you in mourning this loss, and I promise you and Chris' family that we will conduct a thorough investigation of the circumstances.

I want to thank ASSE and AIHA — both the individual members and your organization's leadership — for your commitment to workplace safety and health, for your support of OSHA (when we're doing things right), and for your candor (when we need to take a second look at our activities). This is what good friends are for.

Labor Secretary Solis and I appreciate the work that safety engineers, industrial hygienists and other safety and health professionals bring to workplaces. Every day your members are protecting fellow workers from hazards that can cause debilitating illness, horrible injuries, and death. I know you cannot hear this enough: You are heroes to your workers and their families.

I particularly appreciate the testimonies that ASSE's Chris Patton and AIHA's Aaron Trippler gave earlier this month at OSHA's all-day OSHA Listens event here in Washington. I think the OSHA Listens forum energized OSHA staff by reminding them of the needs and expectations of our stakeholders.

Many speakers traveled long distances to participate in the forum, including family members of workers who have been killed on the job. When you hear the testimonies of these families, it drives home the point that we must find ways to work together to ensure that no one in America should fear dying on the job just to earn a paycheck.

We planned the OSHA Listens forum as part of President Obama's Open Government initiative. The program was Webcast live, and a transcript of speakers' remarks has been posted on the OSHA Webpage. We also have posted comments e-mailed to us over the last few weeks, and we'll continue to post all comments received until the end of this month.

OSHA Leadership Update

I arrived at OSHA four months ago to continue the progress that Jordan Barab began under the direction of Secretary Solis.

I'm an epidemiologist, which means I look at data to understand why people become sick and get injured. At OSHA, I'm using my experience to abate occupational hazards that threaten the health and safety of working men and women.

When I meet with business owners and trade organizations, I make it clear that 5,000 preventable worker deaths and 4 million injuries recorded in our Nation every year are expensive, disruptive, wasteful, and completely unnecessary. Also preventable are the thousands more who become ill in later years from present occupational exposures.

I'm also telling the business community that the sooner we can find ways to work together to reverse this deadly toll, the better off our country will be.

I've challenged the business owners to be a productive part of the process of rulemaking and to take a responsible leadership role in promoting good practices that protect workers.

I've promised businesses that OSHA will continue to provide —and, in fact, increase — support for compliance assistance.

And I've warned the business community that instant, unthinking rejection of every OSHA initiative is no longer acceptable. They have an opportunity to work with OSHA as part of the solution. A constant chorus of "NO" is not doing anything to save lives.

New Sheriff in Town

I want to mention here how supportive Secretary Solis has been. From my years inside government and observing from outside, such strong support for OSHA from the Secretary's office has been rare. Much of what we have achieved and will accomplish is because Secretary Solis is pushing us to be more aggressive.

The Secretary has spoken with passion and enthusiasm about ensuring good jobs for everyone. I'm determined to see that OSHA does its part to support this vision.

I know that by now you've all heard Secretary Solis describe DOL under this Administration as the "new sheriff in town." This is not an empty slogan; it is a stern description of how OSHA is now working — and I take this phrase seriously.

For too long, in too many workplaces in our country, employers have run their businesses like the "wild West" — ignoring laws governing wages and work hours, employment standards, whistleblower protections, and safety and health regulations. In this "anything goes" atmosphere, good employers running responsible businesses resent the unfair advantage of their less law-abiding neighbors. Well, the new sheriff is here to make sure everyone obeys the law.

Under this Administration, OSHA has returned to its original mission as a standard setting and enforcement agency intent on saving workers' lives. When I talk about saving lives, I don't use the phrase glibly. Every week I sign condolence letters to the next of kin of workers who were killed by explosions, electrocutions, falls and other failures that were entirely preventable.

As sensible and basic as these statements and this mission are, they have raised a great deal of controversy in the business community. So, here, in clear terms, are OSHA's priorities...

Enforcement

First and foremost, we are emphasizing strong enforcement — as evidenced in our record-breaking $84.7 million citation against BP Texas City, and the sharp increase in our egregious cases. In the last fiscal year we filed four egregious cases; in the last quarter, we initiated seven.

OSHA recently fined a construction company in Pennsylvania more than a half-million dollars following our investigation into why a roofing worker fell 40 feet to his death. We issued 10 willful citations — one for each of 10 workers — after we determined that the owner failed to require fall protection for these employees working on a pitched roof.

In June last year, OSHA investigated a high-rise construction site in downtown Austin after a scaffold collapsed, killing three workers. OSHA's investigation revealed that the scaffold had not been designed by a qualified person, it was improperly constructed, and it was overloaded. We issued citations to all four employers, with penalties totaling more than $150,000.

And earlier this month OSHA issued a $3 million egregious citation to a BP facility in Ohio for violating the Process Safety Management standard for refineries.

Workers' voices play a crucial role in enforcement. The OSH Act was one of the first safety and health laws in to contain a provision for protecting whistleblowers. The creators of the OSH Act knew that OSHA could not be at every workplace at all times, so the act was constructed to encourage worker participation and rely heavily on workers to act as OSHA's eyes and ears in identifying hazards at their workplaces.

Recently OSHA ordered e-Smart Technologies to pay a worker back wages with interest and $600,000 in compensatory damages. The company fired the worker after he raised concerns about misinformation contained in a draft public filing with the Securities and Exchange Commission. OSHA also ordered the company to reinstate the whistleblower to his former position.

It's unfortunate but true that we need to issue sizable fines to get the attention of employers who do not respect the rights of their workers. Swift, certain and meaningful penalties provide employers with an important incentive to "do the right thing."

Unfortunately, OSHA's current penalties are not large enough to provide adequate incentives. As things stand today, Serious violations — that pose a substantial probability of death or serious physical harm to workers — are subject to a maximum civil penalty of only $7,000; Willful and Repeated violations carry a maximum penalty of only $70,000.

In 2001, a 400,000 gallon tank full of sulphuric acid exploded at a Motiva refinery. A worker was killed and his body literally dissolved. The OSHA penalty was only $175,000. Yet in the same incident, the discovery of thousands of dead fish and crabs allowed an EPA Clean Water Act violation of $10 million — 50 times higher.

Now, clearly, OSHA can never put a price on a worker's life, and that's not the purpose of penalties, even in fatality cases. OSHA must, however, be empowered to send a stronger message in cases where a life is needlessly lost. A stronger enforcement message means stronger deterrence — and can therefore save lives.

We certainly don't see enforcement as OSHA's only function, but we do see it as our most useful function for those who deliberately defy the law and endanger workers.

However, even for employers who want to do the right thing, enforcement has its place. The threat of strong enforcement —

• makes most drivers think twice about speeding even when late for an appointment or having "one more for the road."
  
  
• makes most employers think twice about cutting back on preventive maintenance, training or investments in safer working conditions.
  
  
• makes employers consider the consequences of cutting corners on safety to meet a deadline.
  
  
• And the threat of strong enforcement can encourage employers to seek out a safety consultant or use the free services of our On-site Consultation Program.
  
  

So, you can expect to see us moving, to the extent we can, toward higher penalties, not only to send a message to those employers who neglect their workplace responsibilities, but also to those employers who need reminding that a safe workplace is mandatory — not only when it's convenient but every day.

Earlier this month, OSHA sent reminders to 15,000 employers whose businesses have the highest worker injury and illness rates. We mailed letters to these employers to put them on notice that they must take immediate steps to protect their workers. These businesses are inviting intense OSHA scrutiny. If we find they have not corrected their dangerous workplaces, citations and penalties will follow.

The BP-Husky citation in Ohio reflects an important direction that OSHA's enforcement effort is taking. Faced with the reality that OSHA can never have enough inspectors and enough standards to contain every hazard, we need to think in broader terms.

Increasingly our investigations are looking not only at specific action or use of equipment that caused a worker injury, but also at the overall culture of the worksite and the company. We're examining whether employers are merely focusing on compliance, or taking measured steps to improve the overall performance, reduce risk, and make prevention a part of daily operations. We're looking more intensely at whether there is in place a comprehensive safety and health management system, and we're asking, "Is it being implemented, and are management and workers working together toward continuous improvement?"

Stepping Up Surveillance

We're also looking to see whether management is discouraging workers from reporting injuries and illnesses, which undermines worker safety and OSHA's ability to assess and target hazardous practices and dangerous worksites.

In October 2009 we initiated a National Emphasis Program to ensure workplace injuries and illnesses are accurately reported. We were very concerned about recent studies, Congressional hearings and a GAO report that touch on two related issues. These reports not only documented serious underreporting, but also highlighted certain incentive and disciplinary programs that encouraged workers and employers to underreport injuries and illnesses to OSHA. This is unacceptable.

OSHA is deadly serious about increasing our surveillance efforts and enforcing our requirements to ensure that workers and employers understand how important accurate data is to workplace safety and health.

Gathering accurate data is only part of the battle. OSHA is also challenged to view data that is up-to-date. Currently we focus our inspections through our Site-Specific Targeting program using injury data that is often more than two years old. We need to find ways to implement 21st century technology to give us timely information that can enable us to react swiftly and effectively when we detect troubling trends. Last fall, OSHA held a meeting of industry experts to seek solutions to this "data delay," and we're preparing to make changes — both in how reports are recorded and sent to OSHA as well as how OSHA manages the information.

Protecting America's Workers Act

There is a solution underway in Congress that would remedy many of OSHA's limitations and help us fulfill the mission of the Agency as conceived in the original OSH Act. On March 16, I testified before the House Subcommittee on Workforce Protections on the proposed Protecting America's Workers Act — the PAWA.

The current draft of the PAWA would accomplish many things, including —

• Raising the monetary ceiling on OSHA penalties.
  
  
• Increasing criminal penalties and expanding criminal liability for employers who knowingly permit conditions that contribute to the death of a worker.
  
  
• Tightening existing requirements for OSHA investigations when workers are hospitalized.
  
  
• Strengthening whistleblower protections.
  
  
• Expanding the rights of workers' and victims' families.
  
  

Should Congress enact the PAWA, it would be the most sweeping reform of worker protection in America since the creation of OSHA. My testimony to the House subcommittee is posted on OSHA's Web site.

Standards

Regarding standards for workplace safety and health: Clearly the current system for issuing standards doesn't work well for those it's supposed to benefit — workers.

When rulemaking takes years and even decades, and when enormous resources required of a new standard mean we can only develop a few at a time — you know something is wrong.

When we're still enforcing chemical standards based on science from the 1950s and 1960s, when OSHA has issued only one chemical standard in the last 12 years — and that under court order — you know something is broken.

We can quibble over what parts of the process may or may not be useful, but no one here could rationally argue that this is what the creators of the Occupational Safety and Health Act had in mind. Somehow we must improve to the rulemaking process so that we can react swiftly and responsibly when we determine that workers are in danger of a significant hazard.

Regulatory Agenda

Nevertheless, for now, we must work within this flawed system, and we are pressing ahead with an aggressive regulatory agenda... because lives are at stake.

Not only are we trying to advance those standards that have languished over the past 8 years — silica, beryllium, diacetyl, cranes and derricks, a globally harmonized system for chemical labeling and others; but the Secretary has also proposed a number of new standards — combustible dust and infectious diseases. More are on the horizon.

I am taking great pains to assure the business community about our regulatory agenda. OSHA will be realistic. We will not propose any standard that isn't backed by strong science; nor will we require practices that haven't been adopted already by hundreds or even thousands of companies who take pride in exceeding any conceivable OSHA standard.

We have also proposed restoring the MSD column to the 300 Log. This is a minimal step to ensure better reporting of MSDs and to provide more useful information for employers who are trying to identify hazards in their workplaces.

Some business organizations have attempted to alarm their members by inflating the significance of this modest proposal, although most have treated this proposal seriously and accepted it for what it is — a very small step to increase accurate reporting.

As for the question on many minds — "What is OSHA going to do about ergonomics?" — let me say two things:

• First, if we look at this problem honestly, there is little doubt that musculoskeletal injuries remain one of the biggest workplace health and safety problems in American industry. Something has to be done. No agency calling itself the Occupational Safety and Health Administration can go long without addressing this issue.
  
  
• Second: OSHA has not decided yet the best way to confront this problem, given the daunting regulatory process and the complicated political issues surrounding ergonomics.
  
  

Compliance Assistance

OSHA has also been accused of abandoning compliance assistance in favor of enforcement. Nothing could be further from the truth. Compliance assistance was not an invention of the last administration. OSHA has always put a premium on making sure that workers and employers understand the law and possess useful information about hazards on the job.

To put things in perspective, however, we see compliance assistance as a critical suppor — and not a replacement — for our enforcement and standards activities.

Clearly, employers need help understanding how to comply with OSHA standards and best practices. We understand that small businesses cannot always afford to employ full-time, in-house expertise on safety and health, or even to hire consultants.

This commitment to compliance assistance is why —

• The President has asked for an increase in the state-operated small business consultation service.
  
  
• OSHA has launched initiatives to develop more worker-based compliance assistance materials and materials targeted at immigrants and other hard-to-reach workers.
  
  
• And we are organizing a Latino Worker summit for next month that will bring together worker rights groups, day labor organizations, employer associations, labor unions and others to develop better ways to reach Latino workers.
  
  

Latino Summit

We will hold the National Action Summit for Latino Worker Health and Safety in Houston, Texas, on April 14 and 15. OSHA is co-sponsoring this event with the National Institute for Occupational Safety and Health (NIOSH), in partnership with the National Institute of Environmental Health Sciences.

The summit will bring together workers and representatives from public and private sectors. Construction is the primary industry targeted for this conference, but we will also focus on other high-risk industries that employ large numbers of Latino workers.

The Secretary of Labor called for this summit and she will be on hand to open the meeting.

The summit will provide a lot of useful information, including sessions on free services for small employers and effective educational materials and programs to inform Latino workers about workplace safety and health hazards.

I know that ASSE and AIHA will be on hand to contribute to the discussion, and I'm grateful for your support. OSHA's Home Page offers a link to information and will provide timely information about the proceedings during and after the event.

Budget

OSHA's proposed budget for the coming year reflects our commitment to use our authority fairly and effectively. Last month Secretary Solis announced the proposed FY 2011 budget for the Department of Labor, including the budget for OSHA.

The proposed FY 2011 budget calls for $573 million to help OSHA protect 109 million workers nationwide. This is an increase of $14 million over our current operating budget. When you consider the President's plans to freeze federal discretionary spending over the next three years, this increase shows the value this Administration puts on workplace safety. Included in the budget is $4 million to develop standards and an additional $7.7 million for federal enforcement.

The budget request calls for OSHA to hire an additional 25 inspectors in 2011 and to move 35 personnel from compliance assistance activities to enforcement. Specifically, by scaling back our spending on the Voluntary Protection Programs (VPP) and Alliances, OSHA will redirect compliance safety and health officer time — previously spent on these compliance-assistance activities — to inspections.

Now, I know that ASSE has expressed concerns about OSHA's future support of cooperative programs, so let me be clear: Without a doubt, the VPP makes a valuable contribution to workplace safety. I'm well aware that participating companies go above and beyond OSHA requirements, including many with workplace safety and health programs that should serve as a model for the rest of American companies.

However, the reality today is that we're faced with a difficult choice: Given limited resources, we must either support companies that are doing a great job protecting employees, or focus on employers who willfully disregard workplace safety and who allow workers to die in situations that could easily have been prevented.

Actually, we're trying to achieve the best of both worlds by directing our resources where they will have the most influence, while doing whatever we can to maintain and grow the VPP program as a model for what all workplaces should be.

Threading this needle is not easy, but the President did two things in his recent budget proposal that point to a solution: He significantly cut funding for VPP, but also made a commitment to work closely with the VPPPA and VPP participants to "identify and secure alternative non-federal forms of funding." This was not an idle offer or a throw-away line to provide political cover. It is, in fact, the core of our intentions for FY 2011, and we want — we need — to work closely together with VPP members to make sure this happens.

We believe this budget is the right thing to do at this time when we need to make standards and enforcement our top priority.

The shift in resources and additional hiring called for in next year's budget will enable OSHA to conduct more than 3,500 additional inspections in FY 2011. Also, Secretary Solis has challenged us to increase our diversity when hiring, so that the OSHA of the 21st century will look like, sound like, and come from 21st century America. Currently about 10 percent of OSHA's compliance safety and health officers speak Spanish. We're looking to add more bilingual personnel to respond to the needs of Latino workers and employers.

So, spread the word: OSHA is hiring!

Green Jobs

OSHA is also carefully examining worker safety and health issues related to green jobs. Green jobs promise to be kinder to our environment and transform our economy, but they're not necessarily safer for American workers.

Many of these new jobs pose old occupational hazards, while some new, energy-efficient products expose workers to new, hazardous substances. For example, building and placing modern wind turbines still expose workers to the same dangers faced by traditional welders and tower erectors. Meanwhile, new spray polyurethane foam insulation, used to reduce energy costs in green buildings, expose workers to highly hazardous fumes during installation.

So, products and services advertised as "earth-friendly" don't get an automatic pass on the legal obligation to protect workers. Employers who rush into the green economy without paying attention to worker safety and health will blunder into many preventable injuries and deaths.

I am making it my mission and OSHA's mission to ensure this doesn't happen. Green jobs will not be good jobs unless they are safe jobs.

Open Government

OSHA is inviting the business community to be more engaged in the rulemaking process. Safety and health standards are complex, and we need constructive thoughts from successful businesses, from workers, engineers, scientists, unions, trade organizations — and from our allies in ASSE and AIHA — to help us get these standards right.

In response to President Obama's Open Government Initiative, OSHA and the Department of Labor are working in new and exciting ways to share our work with the American public. These include —

• Launching a more user-friendly Website
  
  
• Publishing the new DOL weekly newsletter that reaches more than 80,000 subscribers, as well as looking at ways to make OSHA's twice-monthly newsletter, QuickTakes, more relevant than ever
  
  
• Using live web chats to roll out our budget and regulatory agenda
  
  
• Publishing high-value data online through data.gov and dol.gov/open
  
  
• Providing live online coverage of agency events such as OSHA Listens earlier this month and next month's Latino Worker Summit.
  
  

On OSHA's Web pages we are working to post new information all the time to explain how OSHA functions, including budget information, inspection data and injury reports. We're also looking at ways to use the newest communications technology to teach and inform. We invite your ideas on how we can do a better job.

Advocating Change

As OSHA moves ahead, we're going to be pushing for change in occupational safety and health standards, pushing for change in the cumbersome rulemaking process, and pushing for fundamental changes in how employers and workers think about risk in the workplace

We expect plenty of pushing back, too. People don't like change, which is why, unfortunately, most reforms in worker safety and health in the 20th century arrived in reaction to tragedy. Now we're a decade into a new century, and it's time to move from reaction to prevention. It's time to push for systemic changes in how we ensure the safety and health of our Nation's working men and women.

So, when OSHA proposes changes that are intended to protect workers' lives, we're going to need to hear from your members and their enlightened CEOs with support, suggestions, or reasonable and constructive criticism based on their experience and expertise.

There will always be nay-sayers who object to any inconvenient reforms. OSHA, ASSE and AIHA have an answer for them, and we will be most effective when we present a united front.

Now, are there any questions?