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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 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Bob Goodlatte, Virginia 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Jason Altmire, Pennsylvania 

Barrett Karr, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Bob Goodlatte, Virginia 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Kristi L. Noem, South Dakota 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

Lynn C. Woolsey, California, Ranking 

Donald M. Payne, New Jersey 

Dennis J. Kucinich, Ohio 

Timothy H. Bishop, New York 

Mazie K. Hirono, Hawaii 

George Miller, California 
(III) 

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 

(1) 

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 
2 

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 wellbeing 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 
3 

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,’’ 
4 

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. 
5 

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 
6 

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:] 
7 
8 
9 

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:] 
10 
11 
12 
13 
14 
15 
16 

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 
17 

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 
18 

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. 
19 

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 nonEnglish 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 ‘‘Compli-
20 

ance 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; 
21 

• 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. 
22 

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 
23 

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 com-
24 

pany 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 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 

[Additional submissions of Ms. Woolsey follow:] 
35 
36 
37 

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 
38 

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 evidencebased 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. 
39 

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 
40 

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 
41 

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 
42 

1http://www.cdc.gov/niosh/docs/2000-108/pdfs/2000-108.pdf 

2Liberty 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. 

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

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

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 irrespon-
43 

sible 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. 
44 

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. 
45 

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. 
46 

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. 
47 

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, highquality, 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 
48 

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 hardto-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 regula-
49 

3Office of Technology Assessment, Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health: An Appraisal of OSHA’s Analytic Approach September 1995. 4 Brody, J Vinyl Chloride Exposure Limit Is Opposed by Plastics Industry. New York Times 

June 6, 1974. 5PVC rolls out of jeopardy, into jubilation. Chemical Week. September 15, 1976:34. 

tions 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

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. 

• 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 
50 

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. 
51 

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 
52 

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 silicarelated 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 
53 

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 
54 

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? 
55 

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. 
56 

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, twotenths 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 
57 

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 jobkilling 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:] 
58 
59 
60 

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 
61 

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. 
62 

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 carcino-
63 

gens 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 dropback 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. 
64 

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 
65 

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? 
66 

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. 
67 

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. 
68 

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 31⁄2 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 
69 

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. 
70 

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. 
71 

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. 
72 

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. 
73 

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 fin-
74 

ished 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). 
75 

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 
76 

1 ‘‘Qualified person’’ means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his ability to solve or resolve problems relating to the subject matter, the work, or 

the project. 2 ‘‘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. 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 strucimagine 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 sitespecific fall protection plan. Let me describe this option for you. The requirements 

found in 29 CFR §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. 

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 per- son.2

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 
77 

ture 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.)’’ 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. 

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. 

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 anchored4 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. 

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 
78 

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. 
79 

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 
80 

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 
81 

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. 
82 

1 [Shapiro, Isaac and Irons, John, Regulation, Employment and the Economy: Fears of Job 

Loss are Overblown, Economic Policy Institute, 2011] 2Williams, 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. 

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. 

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 in-
83 

3Small Business Majority, Opinion Survey: Small Business Owners Believe National Standards Supporting Energy Innovation Will Increase Prosperity for Small Firms, September 20, 

2011 4Dunkelberg, 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. 6Office 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. 7Office 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. 

vest 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

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. 

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. 

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 
84 

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. 
85 

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 workrelated 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 com-
86 

pleted 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? 
87 

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. 
88 

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 in-
89 

dustrial 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. 
90 

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. 
91 

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 

21⁄2 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. 
92 

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 
93 

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 lev-
94 

els 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 
95 

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 threelegged 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, 
96 

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 thirdparty 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 evi-
97 

dence 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:] 
98 
99 
100 
101 
102 

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:] 
103 

FALL FATALITIES 

[Residential vs. Non-residential] 

Year 

Num. of fall fatalities Num. of all fatalities Percentage of all fatalities 

Residential Non-residential Residential Non-residential Residential Non-residential 

Residential/ 

Non-residential 

1992 ................................................. 33 162 91 405 36.3% 40.1% 90.5% 

1993 ................................................. 30 206 76 528 39.5% 39.1% 101.0% 

1994 ................................................. 38 261 88 619 43.2% 42.2% 102.3% 

1995 ................................................. 35 267 85 625 41.2% 42.7% 96.4% 

1996 ................................................. 47 262 116 609 40.5% 43.0% 94.3% 

1997 ................................................. 66 285 136 627 48.5% 45.4% 106.9% 

1998 ................................................. 84 266 174 627 48.3% 42.4% 114.0% 

1999 ................................................. 84 248 173 613 48.6% 40.4% 120.2% 

2000 ................................................. 100 243 188 604 53.2% 40.3% 132.0% 

2001 ................................................. 97 292 203 633 47.8% 46.2% 103.4% 

2002 ................................................. 108 243 205 559 52.7% 43.5% 121.0% 

2003 ................................................. 132 209 277 508 47.7% 41.1% 116.1% 

2004 ................................................. 164 251 322 569 50.9% 44.2% 115.3% 

2005 ................................................. 155 220 305 541 50.8% 40.6% 125.2% 

2006 ................................................. 157 246 327 558 48.0% 44.2% 108.7% 

2007 ................................................. 139 274 283 579 49.1% 47.3% 103.9% 

2008 ................................................. 112 208 209 495 53.6% 42.1% 127.3% 

Source: U.S. Bureau of Labor Statistics, the Census of Fatal Occupational Injuries, 1992-2008. 

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

recreation and sport, and public building. 

Percentage of all fatalities 

Residential Non-residen- tial 

Residential/ 

Non-residen- tial 

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. 
104 

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- 
105 

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 
106 

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 
107 

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. 
108 

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 
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1Occupational 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 2See Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1 (2000). 

3See Potter v. District of Columbia, No. 01-1189, 2007 WL 2892685 (D.D.C. Sept. 28, 2007). 

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 reissued at a later date. 

ABC strongly supports comprehensive regulatory reform, including across-theboard 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

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 
110 

4See http://tinyurl.com/5u5f7ds 

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. 

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 
111 

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 em-
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ployed. 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:] 
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Chairman WALBERG. Having said that and completed that, this 

committee stands adjourned. 

[Whereupon, at 12:06 p.m., the subcommittee was adjourned.] 

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