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October 15, 2010

Dear Colleagues,

In July, I sent a letter to OSHA staff describing my vision for transforming the Agency to meet the challenges facing us in 2010 and beyond. This update discusses what OSHA is doing to accomplish that transformation and shares information about some of the high points of our activities. Depending on the response, I hope to send out similar updates a few times each year, touching on different aspects of our work.

OSHA is a central part of the occupational safety and health community, which includes employers, workers, unions, public health professionals and scientists, federal and state agencies, trade associations, community and faith-based organizations, and educational institutions. Successfully transforming OSHA requires the help of the entire occupational safety and health community. For this reason, I am addressing this letter to OSHA staff and to our broader community. We must all work together to prevent job-related injuries, illnesses, and deaths and to help fulfill Secretary of Labor Hilda Solis' goal of "Good Jobs for Everyone."

Enforcement Activities

The primary purpose of our enforcement program is deterrence. By inspecting workplaces and issuing and publicizing penalties where violations are found, we hope that all employers will recognize the risk they take by not abating serious hazards. Strong enforcement of the law has an additional benefit that 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 enforcement, accompanied by meaningful penalties, levels the playing field. Over the longer term, however, 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.

OSHA's enforcement activities continue at an impressive pace. We are attempting to do our work in a way that delivers an effective deterrent, convincing more employers to abate hazards before workers are hurt. In Fiscal Year 2010, which ended September 30, we conducted more than 34,000 safety and 6,600 health inspections, just about the pace we projected at the beginning of the year. This is a remarkable achievement, since we diverted significant enforcement resources to the Gulf Coast cleanup operations.

A small but increasing percentage of our inspections results in egregious cases. These are cases issued against the most recalcitrant employers, where we found compelling evidence of flagrant, willful disregard for the health and safety of workers. In FY 2009, we issued citations in four egregious cases; in FY 2010, we issued citations in twenty. These egregious cases include:

• In September 2005, BP Products North American, Inc., entered into a settlement agreement with OSHA, subsequent to our investigation into violations that resulted in a massive explosion, causing 15 deaths and 170 injuries, in March of that year. Under the agreement, the company was to take corrective actions to eliminate potential hazards similar to those that caused the tragedy. After a follow-up inspection, in October 2009, we issued the BP Texas City Refinery 270 notifications of failure to abate for noncompliance with the terms of the settlement agreement. In addition, 439 new willful violations for failures to follow industry-accepted controls on the pressure relief safety systems and other process safety management violations were issued. A penalty of more than $80 million, the largest in OSHA's history, was proposed. In August, we settled the failure to abate citations for $50.6 million.
  
  
• On the morning of Super Bowl Sunday last January, a massive gas explosion at the Kleen Energy power plant in Middletown, Connecticut, killed 6 workers and injured 50 more. Following an investigation in which we worked closely with the Chemical Safety Board (CSB), Connecticut State Police and Middletown Police Department, we proposed a $16.6 million dollar penalty to three construction companies and 14 site contractors.
  
  
• Following the December 2009, suffocation death of a worker at the company's McLaughlin, South Dakota, grain handling operation, we fined the South Dakota Wheat Growers Association of Aberdeen, South Dakota, more than $1.6 million. The worker died after being engulfed by grain in one of the facility's bins. OSHA's investigation found that five additional workers were also at risk of being engulfed when they were sent into the bin to dig the victim out.
  
  
• We issued a fine of more than $2 million to E.N. Range, a Miami, Florida, company that specializes in cleaning firing ranges, for willfully neglecting to protect their workers from serious overexposure to lead. This employer also violated agency standards by giving workers non-FDA-approved chelating agents without medical supervision. OSHA's lead standard permits the use of chelating agents only under the supervision of a physician in an appropriate clinical setting. These medicines reduce the levels of lead in the blood but can have significant adverse side effects.

To amplify the deterrent impact of the penalties issued in some of these cases, we have taken a new proactive approach. We are reaching out directly to employers in certain high hazard industries to put them on notice that they need to correct hazards that are likely to cause serious injury or death.

One area in which we are applying this new strategy because we believe employers have not adequately protected workers is entering grain storage bins. According to a study by Purdue University researchers, the number of grain entrapments in the U.S. is increasing annually.¹ OSHA has a clear standard that applies long-standing, common sense practices to prevent grain entrapment deaths. These requirements include providing body harnesses and life lines and locking out all equipment, so the grain is not being emptied when workers are in the bin. Following several recent grain entrapment deaths, including an incident in which two very young Illinois workers were killed, we sent a strong warning letter to 1,928 grain storage employers in states covered by Federal OSHA. OSHA state plan programs sent letters to another 1,420 employers in states they cover. We have either existing or new local emphasis programs in eight regional and area offices, where we will follow-up on these letters with inspections.

Similarly, our investigation and that of the CSB into the Kleen Energy explosion demonstrated the enormous danger associated with using flammable gas to clean piping. According to the CSB, more than 100 power plants are either under construction or are being planned where this activity might occur. The CSB recommended that OSHA issue a regulation banning this activity, and we are considering this recommendation. Current OSHA law precludes us from simply banning this practice without going through a lengthy rule-making process. However, we felt it imperative to act quickly to prevent future disasters. In coordination with our state plan partners, we have contacted the firms building these plants, putting them on notice that:

• The practice of using flammable gas blows to clean piping systems is inherently dangerous.
  
  
• There are alternatives.
  
  
• If they nevertheless elect to use a gas blow procedure using natural gas, then they must evaluate and address all potential hazards before and during the blows, and eliminate worker exposure to those hazards.

We warned them that any failure to adhere to the law and industry-accepted safety standards in the course of a gas blow will be pursued vigorously by Federal OSHA or State agencies to the fullest extent of the law.

Another area in which we are initiating a new approach is prevention of hearing loss. Historically, we have not accurately interpreted the word "feasible" in enforcement of our noise standard, resulting in many missed opportunities for protecting the hearing of noise-exposed workers. We plan to change our current noise standard enforcement policy, making it clear that "feasible" engineering controls means controls that are capable of being implemented. This will align the interpretation of the noise standard with the Supreme Court's definition of ‘feasible' and with OSHA's other standards that require feasible engineering controls. We think this will enable us to require more employers to reduce excessive workplace noise levels, preserving the hearing of many workers.

Injury Tracking and Reporting

OSHA requires many employers, especially those in high hazard industries, to keep records of workplace injuries. Each year, we ask 80,000 establishments to send the total number of reported injuries to OSHA, and we use these data for targeting inspections. While these data are useful to OSHA, the primary importance of this information is to allow employers and workers to investigate the causes of injuries in order to prevent future injuries from occurring.

Many employers currently record and compile injury reports in ways that allow them to investigate injury causation and pursue prevention, but, unfortunately, many others do not. Employers who compile OSHA logs but do nothing with the information are missing an important opportunity to reduce injury risks.

If injuries are not recorded, they will not be investigated. OSHA is very concerned about the existence of programs that appear to encourage safe work but in fact incentivize injured workers to not report injuries. These programs are often used by employers that offer monetary bonuses to managers who keep injury rates low. We have seen too many programs that offer a pizza party or allow workers to enter a raffle for a new television or truck as a reward for not reporting an injury on the job, or worse, that promise to automatically drug-test or fire any worker who reports an injury.

The immediate effect of these programs is to discourage workers from reporting their injuries. This impacts not only the injured worker, who may not be eligible for workers' compensation benefits if they do not make a claim, but all workers. Causes of an unreported injury can never be investigated, and nothing can be learned to help prevent future injuries.

We were very pleased to learn earlier this month that the Voluntary Protection Programs Participants' Association, which includes many of the country's large employers, supports OSHA's position and opposes incentive programs that offer rewards for not reporting injuries.²

Not all safety incentive programs are problematic. Some employers have programs that incentivize hazard identification, participation in training, or involvement in near miss investigations. These employers have a better understanding of safety and health management systems, recognizing that focusing on indicators of positive behavior will be more productive than punishing workers who report injuries.

OSHA is trying to learn more about the workings of incentive programs. If you are involved in a workplace safety and heath incentive program that you think is either effective or ineffective, please send it to me (at publicDavidMichaels@dol.gov), along with the basis of your opinion on its effectiveness.

With the help of our state plan partners, OSHA has initiated a Recordkeeping National Emphasis Program (NEP), in an effort to identify and correct under-recorded and incorrectly recorded injuries and illnesses on the OSHA Form 300. Recordkeeping NEP inspections entail intensive document review, multiple employee and management interviews, and limited walkaround inspections. The NEP was initiated in October 2009 and is scheduled to run through February 2012.

As of October 1, 2010, OSHA has initiated 187 inspections under the NEP. Almost 50 percent of the inspections conducted to date have found recordkeeping violations. The program focused initially on those high hazard establishments with the lowest injury and illness rates. After learning much from the initial inspections, we recently readjusted the targeting criteria for new inspections to include employers with somewhat higher rates that are still below the average, as well as some larger establishments.

In August, we issued egregious willful citations for recordkeeping violations against Goodman Manufacturing Company of Houston, Texas, for a total proposed penalty of $1,215,000. The company's practice of "redlining" accident reports, in which managers substituted the company's own recordability criteria instead of OSHA recordkeeping requirements, resulted in gross underreporting of injuries and illnesses.

Regulatory Activities

After years of work, in August we issued a historic standard to protect workers operating cranes and derricks. OSHA staff, led by the Directorate of Construction, as well as attorneys with the Solicitor of Labor's office, worked tirelessly to develop this standard, which is expected to prevent 22 fatalities and 175 non-fatal injuries each year. This rule becomes effective November 9, 2010.

We are working on several other regulatory initiatives. The most important initiative involves developing a rule requiring employers to implement an Injury and Illness Prevention Program. This rule will require that employers take a proactive approach to ensuring healthy and safe working conditions for their employees, focusing on all recognized hazards, not merely ones for which OSHA has standards. An Injury and Illness Prevention Program involves planning, implementing, evaluating, and improving processes and activities that protect employee safety and health. OSHA has substantial data on reductions in injuries and illnesses from employers who have implemented similar effective processes.

We have recently concluded five stakeholder meetings in New Jersey, Texas, California and two in the District of Columbia, averaging 40 participants and 150 audience members, including significant participation by employers and labor unions. We are eager to move forward to the next stages of the rulemaking process on this critical issue.

In addition, we are making progress on finding a new way forward to address our seriously outdated Permissible Exposure Limits (PELs). As many of you are no doubt aware, many of these standards were adopted in the 1970s, based on science from the 1950s and 60s. Science has moved on, and we now know that significant dangers exist at lower exposure levels than was thought almost half a century ago.

In June, OSHA assembled a small group of stakeholders to discuss options for updating the PELs. These stakeholders, who included leaders from industry, labor and academia, provided the Agency with several innovative potential solutions.

Subsequently, OSHA held a web forum where the public was encouraged to nominate the list of chemicals they believe are the most hazardous for workers. The forum was open for stakeholder comment for three weeks, starting August 16, and we received over 130 nominations. Working closely with the National Institute for Occupational Safety and Health (NIOSH), we are now gathering information on key chemicals that pose the greatest danger to America's workforce. We will soon announce the next steps in this initiative.

Compliance Assistance and Outreach

Listening to our stakeholders is a high priority for OSHA under the Obama Administration. In February, we held a session we called "OSHA Listens." Stakeholders from many backgrounds and regions presented their thoughts on OSHA's current and future activities. We have followed this session with a series of activities that have enabled us to get a better understanding of the needs of employers, workers and others involved in protecting worker safety and health.

Following the groundbreaking OSHA National Action Summit for Latino Worker Health and Safety, every OSHA region implemented a robust outreach strategy to create partnerships and alliances with neighborhood, faith-based and other nonprofit organizations in their region. These groups provide vulnerable workers and small employers with critical information about workplace hazards.

Several regions have already conducted OSHA Listens meetings and regional Latino summits to educate and train vulnerable workers about job hazards and workers' rights. More of these events are planned. Many regions have conducted outreach and training programs. They have reached out to community and faith-based organizations in several states, often in partnership with other DOL agencies like the Wage and Hour Division, to plan future events. Some regions have developed new alliances with community-based worker organizations representing Latino, Asian-American, Pacific Islanders and other vulnerable worker groups. Moreover, we continue to enhance our ability to handle Spanish language complaints and questions at the regional and area office level. We are partnering with Mexican Consulates throughout the country to play our public service announcements at their locations. In addition, we have participated in radio programs as well as various events related to the annual Labor Rights Week.

OSHA's Susan Harwood Training Grant program has provided funding this year to an unprecedented number of community-based worker organizations, including many representing Latinos, Asian-Americans, Pacific Islanders and other vulnerable workers. Our new Pilot Grants will enable groups that have never been involved in health and safety issues to develop programs that provide the knowledge and tools that their members need to protect their health and safety in the workplace.

Gulf Clean-up

From the very beginning, OSHA assumed a major role in the BP oil spill clean-up operations in the Gulf of Mexico. Eleven workers died in the Deepwater Horizon explosion; it was our job to ensure that the clean-up work was done as safely as possible. Under the leadership of Region 4 Director Cindy Coe, a large team of OSHA staff from Regions 4 and 6, along with the national office and Salt Lake City Tech Center, worked seven days a week, often from dawn till long past dark. These efforts helped ensure that BP and its contractors provided safe conditions for the thousands of workers employed in the cleanup.

OSHA was part of a huge inter-agency emergency response effort. We worked closely with the Coast Guard, the lead agency in the Incident Command System, as well as with several agencies within the Department of Health and Human Services, the Environmental Protection Agency and the National Oceanic and Atmospheric Administration.

OSHA was activated as part of the National Response Team on April 22, 2010, two days after the fire on the Deepwater Horizon rig. Starting long before the oil reached the beaches, OSHA professionals were at the staging areas and on boats ensuring that BP and its contractors implemented safety precautions and procedures. We made sure that workers were trained, observed work practices and measured chemical exposures. Whenever our inspectors identified a hazard, we informed BP and insisted that the hazard be abated immediately. We carefully monitored chemical exposures, applying the lowest Occupational Exposure Limits, rather than OSHA's outdated PELs. In all, we made more than 4,000 site visits and took almost 7,000 chemical exposure measurements.

I could not be more proud of our work and contribution to the clean-up effort. The OSHA staff assigned to the gulf clean-up operation did their work with impressive professionalism. Because we did our work so well, because workers were not killed or seriously injured, most of our activities went on, unnoticed, below the media radar. Attached is a list of OSHA staff who participated in the clean-up activities. If you have the opportunity, please join me in thanking them for their dedication and contribution to this tremendous effort.

State Plans

State plans provide OSHA coverage for 40 percent of workers across the country. By law, it is our responsibility to ensure that these plans are at least as effective as the federal program. I believe we have much to learn from the successes of the state plans, and our oversight can help the plans become more effective in preventing workplace injuries, illnesses and fatalities.

Our relationship with the state plans continues to evolve, and together we must explore ways to define and measure their effectiveness. OSHA recently completed special evaluations of almost all the state plans. We released the results last month. Not surprisingly, we found that some plans were very strong, yet we found troubling deficiencies in others. Our reports, and the responses of the plans, can be found at http://www.osha.gov/dcsp/osp/efame/index.html.

We are engaging in discussions with the state plans about addressing the findings of the special evaluations, developing an effective penalty policy and creating a new, more thorough oversight program. I am confident that these discussions will improve the operations of the state plans and Federal OSHA, and strengthen the partnerships between OSHA and the states.

Distracted Driving

Year after year, the leading cause of worker fatalities is motor vehicle crashes. Distracted driving dramatically increases the risk of such crashes. To address this problem, the Department of Labor is partnering with the Department of Transportation to take action in our respective jurisdictions and encourage employers to take steps to combat distracted driving. Together we are taking aim at the serious and growing danger posed by drivers who send text messages while driving.

Earlier this month, we launched a multi-pronged initiative which includes:

• An education campaign calling on employers to prevent occupationally-related distracted driving—with a special focus on prohibiting texting while driving;
• A distracted driving website where we hope to share information and strategies for addressing this problem, including model employer policies;
• A special emphasis on reaching young workers, developed jointly with other Labor Department agencies as well as our alliance partners and stakeholders; and
• An enforcement component: when OSHA receives a credible complaint that an employer requires texting while driving or organizes work so that texting is a practical necessity, we will investigate and where necessary issue citations and penalties to end this practice.

OSHA's message to all companies whose workers drive on the job is straightforward: It is their responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving. Companies are in violation of the OSH Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their jobs.

Changes in the OSHA Leadership

There have been some significant changes in the senior OSHA leadership in the last few months, both in the field and the national office. Two of our Regional Administrators have retired. After thirty-six years with OSHA, Dick Terrill retired on July 20. Dean McDaniel, who also served thirty-six years, left us just eleven days later. Both will be sorely missed.

We welcome Nick Walters, who has been named Deputy Regional Administrator in Region 5, along with the recently appointed area directors: Paul Mangiafico in Hartford, Connecticut; Jeffrey Erskine in Boston North, Massachusetts; Kris Hoffman in Parsippany, New Jersey; Prentice Cline in Charleston, West Virginia; Kimberly Austin in Atlanta East, Georgia; Gary Anderson in Calumet City, Illinois; Christine Webb in Billings, Montana; Van Howell in Oakland, California; Tom Carle, in San Diego, California; Yvonne Gonzalez in Phoenix, Arizona; Galen Lemke in Honolulu, Hawaii; and Joy Flack, in Las Vegas, Nevada.

In April, Rich Fairfax, the long-time head of the Directorate of Enforcement Programs (DEP), was named career Deputy Assistant Secretary for OSHA. He was replaced as head of DEP by Tom Galassi, who is also serving as acting head of the Directorate of Technical Services and Emergency Management. In the Directorate of Construction, Ben Bare took on the role of Deputy Director and Acting Director in May, and Eric Harbin became Office Director of the Office of Construction Services. MaryAnn Garrahan has been serving as acting director of the Office of Communications since August, and we are very grateful for all the help she has provided. Finally, Doug Goodell, our director of Human Resources, is leaving OSHA to become the Department's Director of Employee and Labor Management Relations. We wish him all the best.

A Final Word on Heat

As this hot summer comes to an end, we have received several reports of deaths that appear to have been caused by severe heat. Heat is an often underestimated cause of work-related illness and death. In the Gulf oil spill cleanup operation, the Unified Command insisted that BP and its contractors follow the same heat work matrix our military uses in Iraq and other hot areas. This matrix is employed to determine the appropriate heat/rest ratio, on the basis of temperature and relative humidity. In the gulf cleanup work, OSHA made sure that contractors followed this matrix, supplied plenty of liquids for hydration, and provided shaded areas for rest, as well as medics on call to check vital signs. Still, about 1,000 cases of heat-related illnesses or symptoms were reported to OSHA. Fortunately, most were minor, but without the presence of OSHA and these policies, I believe we would have seen far more serious cases, and perhaps even deaths.

It is clear to me that employers across the United States must begin to apply the lessons of the gulf cleanup to other outdoor work undertaken in the heat of the summer. Now is the time to begin thinking about proactive ways to engage this issue ahead of next summer.

To ensure the safety of American workers, OSHA needs the help of the entire safety and health community. If you have suggestions on any of the topics I've mentioned in this letter or on other issues you think OSHA should address, please write me at publicdavidmichaels@dol.gov. I may not directly respond to your note, but I promise to read it and consider what you've sent.

Yours very truly,

David Michaels, PhD, MPH

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