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80–841 PDF 2003

S. HRG. 107–574

WORKPLACE SAFETY AND HEALTH: OVERSIGHT

OF MSHA AND OSHA REGULATION AND ENFORCEMENT

HEARING

BEFORE THE

SUBCOMMITTEE ON EMPLOYMENT, SAFETY, AND

TRAINING

OF THE

COMMITTEE ON HEALTH, EDUCATION,

LABOR, AND PENSIONS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

EXAMINING WORKPLACE SAFETY AND HEALTH OVERSIGHT OF THE

MINE SAFETY HEALTH ADMINISTRATION AND OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION REGULATION AND ENFORCEMENT

JULY 11, 2002

Printed for the use of the Committee on Health, Education, Labor, and Pensions

(
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut

TOM HARKIN, Iowa

BARBARA A. MIKULSKI, Maryland

JAMES M. JEFFORDS (I), Vermont

JEFF BINGAMAN, New Mexico

PAUL D. WELLSTONE, Minnesota

PATTY MURRAY, Washington

JACK REED, Rhode Island

JOHN EDWARDS, North Carolina

HILLARY RODHAM CLINTON, New York

JUDD GREGG, New Hampshire

BILL FRIST, Tennessee

MICHAEL B. ENZI, Wyoming

TIM HUTCHINSON, Arkansas

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

PAT ROBERTS, Kansas

SUSAN M. COLLINS, Maine

JEFF SESSIONS, Alabama

MIKE DeWINE, Ohio

J. MICHAEL MYERS, Staff Director and Chief Counsel

TOWNSEND LANGE MCNITT, Minority Staff Director

SUBCOMMITTEE ON EMPLOYMENT, SAFETY, AND TRAINING

PAUL D. WELLSTONE, Minnesota, Chairman

EDWARD M. KENNEDY, Massachusetts

CHRISTOPHER J. DODD, Connecticut

TOM HARKIN, Iowa

MICHAEL B. ENZI, Wyoming, Chairman

JEFF SESSIONS, Alabama

MIKE DeWINE, Ohio

MARGERY F. BAKER, Staff Director

RAISSA H. GEARY, Minority Staff Director

(II)
CONTENTS

STATEMENTS

THURSDAY, JULY 11, 2002

Page

Wellstone, Hon. Paul D., a U.S. Senator from the State of Minnesota ............... 1

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming .................... 3

Henshaw, John, Assistant Secretary, Occupational Safety and Health Administration, U.S. Department of Labor, Washington, DC; and David Lauriski,

Assistant Secretary, Mine Safety and Health Administration, U.S. Department of Labor, Washington, DC ......................................................................... 7

ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:

John Henshaw .................................................................................................. 28

David D. Lauriski ............................................................................................. 31

U.S. Chemical Safety and Hazard Investigation Board ................................ 35

Response to questions of Senator Wellstone from John Henshaw ............... 38

Response to questions of Senator Murray from David Lauriski .................. 39

Response to questions of Senator Murray from John Henshaw ................... 40

Response to questions of Senator Enzi from David Lauriski ........................ 41

Response to questions of Senator Wellstone from David Lauriski ............... 44

Response to questions of Senator Murray from David Lauriski .................. 51

Response to questions of Senator Enzi from John Henshaw ........................ 53

(III)

(1)

WORKPLACE SAFETY AND HEALTH: OVERSIGHT OF MSHA AND OSHA REGULATION

AND ENFORCEMENT

THURSDAY, JULY 11, 2002

U.S. SENATE,

SUBCOMMITTEE ON EMPLOYMENT, SAFETY, AND TRAINING,

OF THE COMMITTEE ON HEALTH, EDUCATION, LABOR, AND

PENSIONS,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:05 a.m., in room

SD–430, Dirksen Senate Office Building, Senator Wellstone (chairman of the subcommittee) presiding.

Present: Senators Wellstone and Enzi.

OPENING STATEMENT OF SENATOR WELLSTONE

Senator WELLSTONE. We will ask for some order in the back and

for people to please come in and be seated, because we will now

bring the Subcommittee on Employment, Safety, and Training to

order.

First, I want to call this hearing of the Subcommittee on Employment, Safety, and Training to order, and I want to thank both witnesses for joining us today.

Mr. Henshaw and Mr. Lauriski, nothing could be more important

than protecting the health and safety of working men and women.

Our topic today is oversight of the regulation and enforcement

responsibilities of two vitally important Federal agencies, the Occupational Safety and Health Administration, better known as

OSHA, and the Mine Safety and Health Administration, known as

MSHA.

Two days ago on Wall Street, the President, referring to financial

practices and behavior, said, and I quote: ‘‘Self-regulation is important, but it is not enough.’’ He was referring to the necessary Government role in regulating a market economy. He went on to point

out that it is also sometimes the job of Government to ‘‘ensure that

those who breach the trust of the American people are punished.’’ Earlier this year, the President had this to say about the importance of Government standards and the enforcement of these

standards, and I quote again from the President: ‘‘A good business

always respects the boundaries of right and wrong’’—and I know

that my colleague Senator Enzi absolutely agrees with that. ‘‘In our

country, the law defines many of these responsibilities, from workplace safety to environmental protection.’’
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Finally, during a recent visit to a high school in Missouri, President Bush said that he wants Government agencies to be accountable. Enforcement of sound standards and holding Government accountable is what today’s hearing is all about. This is a committee

oversight hearing.

Without minimizing concerns about national security or the current lack of confidence in financial markets, the trauma that working men and women and their families face every day from injury,

illness, and even death on the job is no less important. As events

of the past year have sorely demonstrated, systems, whether they

be to protect financial markets, our national security, or the safety

and health of our work force, cannot work unless everyone does the

job they are supposed to do—auditors, financial analysts, corporate

executives, and Government.

Today we will examine how well Government is performing its

job with respect to the safety and health of America’s workers.

Born from the blood, sweat, and political struggle of thousands of

Americans, OSHA and MSHA are charged with protecting the safety and health of hard-working men and women as they go about

their daily jobs. They are responsible for administering comprehensive regulatory and enforcement systems to ensure that workers do

not lose their lives, are not injured, and do not contract illnesses

because of exposure to workplace hazards or risks.

OSHA’s purpose according to the Occupational Safety and Health

Act is to ‘‘assure so far as possible every working man and woman

in the Nation safe and healthful working conditions and to preserve our human resources.’’ MSHA was created among other reasons because Congress found

that there was ‘‘an urgent need to provide more effective means

and measures for improving the working conditions and practices

in the Nation’s coal or other mines in order to prevent death and

serious physical harm, and in order to prevent occupational diseases originating in such mines.’’ Today we will examine how well OSHA and MSHA are meeting

these responsibilities. Frankly, I have concerns as chairman of this

subcommittee. I am troubled about whether OSHA is meeting is responsibilities under the OSH Act to set mandatory occupational

safety and health standards necessary to accomplish the overall

goal of safe and healthful working conditions.

Protecting workers from exposure to explosive chemicals, from

the ravages of tuberculosis, from the heartache of birth defects,

miscarriages, and other reproductive health problems caused by exposure to toxic chemicals, from disabling hearing loss, from lung

cancer and other respiratory is what OSHA is supposed to be

about. OSHA cannot abdicate these responsibilities. It is a higher

duty to America’s working men and women. It simply cannot do everything by consensus. That is why Congress gave OSHA the authority to promulgate mandatory occupational safety and health

standards.

In setting up these hearings, I had an understanding with Mr.

Henshaw and the distinguished ranking minority member that we

would use the time here today to focus on issues other than repetitive stress injuries—not because this issue is not extremely important, but because we wanted to be sure that other important safety
3

and health issues did not get lost. So I do not want to dwell on the

topic of repetitive stress injuries other than to note my concern

that the administration’s dismissive attitude toward setting a

meaningful repetitive stress injury standard was, I fear, just the

tip of the iceberg.

Voluntary partnerships and programs have their place, but the

fact is, as President Bush has noted, self-regulation is never

enough. We need standards, and the Government needs to enforce

those standards, because not everyone can be counted on to do the

right thing.

That is what Government is for. That is why we should hold

Government accountable to do this.

I also have some grave concerns about MSHA’s enforcement efforts. I will want to focus in particular on two catastrophic events.

First, there was the massive coal impoundment failure at A.T.

Massey mine in Kentucky that spewed 300 million gallons of coal

sludge into over 70 miles of creeks and rivers along the KentuckyWest Virginia border. This was said to be a catastrophe on the

same scale in terms of damage to the ecology and surrounding communities as the Exxon Valdez oil spill—the worst ecological disaster ever—in the Southeast United States.

How could such a catastrophe happen just 6 years after a similar

impoundment failure at the same site and the purported correction

of deficiencies by the company? What went wrong, and how can

such catastrophic failures be prevented in the future?

Then, there is the recent tragic explosion in the Jim Walters Resource Mine in Alabama, killing 13 miners. At the time of the explosion there were 31 outstanding citations that had not been

abated, some for violations that I would have thought were serious—1,000 feet of flammable coal dust—but which the MSHA inspector apparently did not think were serious. Were the MSHA inspectors doing their job? Was the company being held to sufficiently rigorous standards? Is the pattern of violations and citations at this mine indicative of overall gaps in MSHA’s enforcement

efforts? And how can MSHA accomplish its daunting enforcement

challenges on the budget and with the resources currently being

sought by the Bush Administration in its fiscal year 2003 budget?

These are some of the questions that I will want to explore with

our witnesses today. Again, I thank the two of you for coming, and

I look forward to your testimony.

Senator Enzi?

OPENING STATEMENT OF SENATOR ENZI

Senator ENZI. Thank you, Mr. Chairman.

The topic of today’s hearing is ‘‘Workplace Safety and Health:

Oversight of MSHA and OSHA Regulation and Enforcement.’’ As

the ranking member of this subcommittee, I feel a special responsibility to protect the safety and health of America’s workers.

One of the most important aspects of this responsibility is to

oversee the agencies charged with protecting our workers and miners, and I thank you for having this hearing.

The Occupational Safety and Health Act created the Occupational Safety and Health Administration, OSHA, in order to assure
4

as far as possible every working man and woman in the Nation

safe and healthful working conditions.

The Mine Safety and Health Administration was created under

the Mine Safety and Health Act to create the safety and health of

the mining industry’s most precious resource—the miner.

Today we pause to assess the effectiveness of these agencies in

reaching these goals over the past year. Today we also look ahead

to discuss OSHA’s and MSHA’s vision and strategies for enhancing

their effectiveness.

This hearing is entitled ‘‘Oversight of MSHA and OSHA Regulation and Enforcement.’’ However we cannot focus merely on regulatory and enforcement activities to gain a full appreciation of either agency’s effectiveness.

Furthermore, where problems may be identified, we must look

beyond just regulation and enforcement for the answers. Regulation and enforcement are vital to OSHA and MSHA’s mission to

protect our workers and miners. However, standards and enforcement alone will not assure their safety and health. An approach to

occupational safety that is adversarial in nature and based solely

on enforcement has not effectively tapped into the resources of the

Agency, nor has it effectively tapped into the resources of employers and employees across the country who are committed to improving safety in mines and other workplace.

The fact is enforcement alone cannot ensure the safety and

health of the work force. We must focus our efforts on preventing

injuries and illnesses from occurring in the first place.

It is also a fact that the Government cannot ensure the safety

of all of the Nation’s workers and miners on its own. It would take

OSHA 167 years to inspect every workplace in America one at a

time. OSHA and MSHA must partner with business and labor to

seek creative and proactive solutions to workplace safety.

OSHA’s Voluntary Protection Program is an excellent example of

the successes of a proactive and collaborative approach. Overall,

employers participating in VPPs have illness and injury rates that

are more than 50 percent below the average for their industries.

They have fewer lost workday injuries, and they have reduced

workers’ compensation costs.

I would like to see the codification of this important and successful program. I urge these agencies to consider the unique needs

and capabilities of small mines and small businesses in OSHA’s

and MSHA’s regulatory and compliance activities. Small businesses

and small mines face unique safety and health challenges that

could greatly benefit from the guidance of OSHA and MSHA, respectively, as well as from the guidance of larger companies, those

VPP companies that I mentioned.

I look forward to hearing from Assistant Secretary Henshaw and

Assistant Secretary Lauriski about their agencies’ efforts to address these concerns.

With respect to enforcement activities, the skills and training of

compliance officers and investigators is a key to effective enforcement. I also look forward to hearing from the assistant secretaries

about their agencies’ efforts to enhance the training and skills of

compliance officers. I would also like to hear about OSHA’s and
5

MSHA’s efforts to improve the effectiveness and fairness of the

standard-setting process.

I want to thank the two assistant secretaries for appearing

today, and I thank them for their efforts to improve the safety and

health of Wyoming’s and America’s workers and miners.

This last year, I had an opportunity to learn a little something

about statistics. One-third of the Nation’s coal is mined in my country, and I remember having a visitor from the Tokyo press come

to my county to take a look at the mines—we talked him into it;

he was pretty sure that they were dirty and dangerous—and after

he had a chance to tour, he found out that they were both clean

and safe.

We have had some mines that have gone for 4 years without a

lost time accident. But this last year, we had one injury that paralyzed a person from the neck down, and we had a death. Now, compared to past years, that is about a 1,000—or, actually, it is a higher percentage than that—percent increase in deaths. So that sometimes the statistics get skewed by having a good workplace. But it

is something that everybody has been cognizant of. Some new programs have come out of it. One of my favorites is the Come Home

Safe Program where everybody in the family is encouraged to encourage the worker to be safe that day and to come home to them

that night.

Another program that does not have any legal constitution is one

of near misses, talking about the near misses and sharing those

with other people who might be in that same situation, because the

near miss is an accident that did not quite happen, but it is an accident that could happen, and that is where some of the good prevention comes in.

I would like to thank you for your efforts in focusing on collaboration and education and compliance assistance to make your mission more effective.

I apologize that I will not be able to be here for the entire hearing. We are having a bill that I have put hundreds of hours into

debated on the floor, and I have an amendment that is pending at

the moment, so I am going to have to go over there.

I would ask unanimous consent remain open so that I can address some questions after the testimony even if I am not here—

in this case, unanimous consent is just you, I guess.

Senator WELLSTONE. Absolutely, and I am pleased to give that

unanimous consent.

I also want to apologize and say that we have everything going

on today. We have a markup in the HELP Committee that was just

rescheduled for the same time as our subcommittee hearing. We

have, as Senator Enzi said, a very important debate going on on

the floor, and he has been very involved with some of the reform

efforts. But it did seem to me that it was too important to put this

off, so we will go forward, and any questions or responses to any

comments that you want to put in the record, please do so, Senator.

Senator ENZI. Thank you.

[Questions of Senator Enzi may be found in additional material.]

Before we begin I have a prepared statement from Senator Murray.

[The prepared statement of Senator Murray follows:]
6

PREPARED STATEMENT OF SENATOR MURRAY

Thank you, Senator Wellstone, for calling this important hearing

today. I appreciate your long-standing commitment to protecting

workers in this country.

As you know, America’s workers are the foundation of our economy—an economy that, even during an economic downturn, remains the strongest economy in the world.

I believe workers must be safe and healthy for the economy’s potential to be maximized.

I look forward to getting an update from Mr. Henshaw and Mr.

Lauriski on current efforts by the Occupational Safety and Health

Administration (OSHA) and the Mine Safety and Health Administration (MSHA) (m-shaw) to improve protections for workers.

Thank you, also, Senator Wellstone, for cosponsoring a bill I recently introduced, S. 2641, the Ban Asbestos in America Act of

2002.

This legislation will take a crucial step forward in protecting

workers and consumers by doing something which most Americans

thought was done years ago: it bans asbestos in the U.S.

The Environmental Protection Agency tried to ban asbestos in

1989, but the EPA’s regulations were overturned in 1991.

While new uses of asbestos were banned, existing uses were not.

Last year the United States consumed 13,000 metric tons of

chrysotile asbestos to make roofing materials, gaskets, friction

products and other items.

In contrast, asbestos has been banned in more than 20 countries,

and will be banned throughout the entire European Union by 2005.

My interest in this issue stems from a series of newspaper articles which appeared in the Seattle Post-Intelligencer.

In late 1999, the paper ran stories about asbestos contamination

from the vermiculite mine near Libby, Montana.

The paper reported on the high incidence of asbestos-related disease in that community caused by decades of exposure to the asbestos from the mine.

But the Post-Intelligencer’s investigation wasn’t limited to Libby.

The paper has covered asbestos-contamination at talc, taconite

and vermiculite mines throughout the country, has found elevated

concentrations of asbestos in dust samples at gas stations, and has

covered EPA’s findings on asbestos in horticultural products made

with vermiculite.

The paper has repeatedly raised questions about whether we are

doing enough to protect workers and consumers from asbestos exposure.

I’m convinced that we’re not; and that is why I have introduced

the Ban Asbestos in America Act of 2002.

Senator WELLSTONE. Mr. Henshaw?
7

STATEMENTS OF JOHN HENSHAW, ASSISTANT SECRETARY,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

U.S. DEPARTMENT OF LABOR, WASHINGTON, DC.; AND DAVID

LAURISKI, ASSISTANT SECRETARY, MINE SAFETY AND

HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,

WASHINGTON, DC.

Mr. HENSHAW. Thank you, Mr. Chairman.

Thank you for the opportunity to discuss the Occupational Safety

and Health Administration’s commitment to protecting American

workers.

I would especially like to discuss the Secretary’s and my vision

for the Agency and the progress that OSHA has made in achieving

that vision.

When we look at the State of occupational safety and health in

this Nation, we have many reasons for optimism. At 6.1 injuries

per 100 workers, the overall injury and illness rate is the lowest

since the Bureau of Labor Statistics started compiling these statistics, and there is a chart to my right which displays this.

Since OSHA’s inception in the early 1970’s, the rate has fallen

by about 45 percent. In those industries where OSHA has targeted

inspections, there have been even greater improvements.

Furthermore, the extent of cooperation between businesses,

labor, and OSHA as measured by the number of partnerships, participation in the Voluntary Protection Program that Senator Enzi

mentioned, and amount of compliance assistance activities is greater than ever before.

Even though we have accomplished much, I recognize that there

is also much to do. Nearly 6,000 workers suffer fatal accidents each

year, and in the year 2000 alone, there were 5.7 million injuries

and illnesses in America’s workplaces. Our focus, as you reiterated

earlier, is to drive down fatalities and injuries and illnesses even

further—as far as possible.

Enforcement and regulatory actions are certainly two of the more

important tools for making workplaces even safer. OSHA is increasing its enforcement efforts in 2002 with more inspections, particularly health inspections, and targeting enforcement on the most

dangerous workplaces in the high-hazard industries.

Through our enforcement efforts, we plan to conduct 36,400 inspections this year.

OSHA is also setting realistic goals and objectives in our regulatory program. We have spent the past year assessing the Agency’s capabilities and planning regulatory priorities. OSHA’s regulatory agenda now reflects an honest appraisal of what we can responsibly accomplish and the commitments we plan to meet.

Our current regulatory agenda, published May 13 of 2002, includes the publication of two final rules and seven Notices of Proposed Rulemaking.

Beyond our regulatory and enforcement activities, I would like to

point out how OSHA is showing safety and health leadership in

other ways. During the 9 months of rescue and cleanup of the

World Trade Center site, we monitored safety conditions to ensure

that problems were fixed before anyone got hurt. We protected

thousands of workers by overseeing the fitting and distribution of

more than 130,000 respirators and handing out over 40,000 pieces
8

of personal protective equipment and taking more than 6,000 air

and bulk samples. I am pleased to report that there were no workrelated deaths after the collapse of the two buildings and only 35

lost time injuries and a remarkably low rate of 2.3 injuries per 100

workers. Demolition sites normally have about 4.3 lost time injuries.

OSHA is also taking the lead in the safety and health of immigrant workers. As the committee has noted, many immigrant workers are often at greater risk than other workers, and far too often

lose their lives on the job. OSHA has targeted inspections at workplaces such as meatpacking, where there are large numbers of immigrant workers. We have added Spanish language capability to

our 800 emergency number. We have created a Spanish web page

and are distributing Spanish language editions of employee rights

notices.

I believe that for OSHA truly have beneficial impact in workplaces, we must go beyond enforcement and standard-setting.

OSHA’s participation with industry, professional and labor organizations is another valued means of protecting workers.

There are currently 137 active partnerships between OSHA and

the private sector that are producing positive results for the Agency’s Strategic Partnership Program.

Mr. Chairman, in conclusion, I believe that whenever we enter

a workplace, whether as inspectors or as providers of compliance

assistance, it is imperative that we provide services that will help

lead to a safer workplace, because when OSHA truly helps employers and their employees, the impact extends beyond the confines of

the workplace. It extends to the overall health and welfare of the

community.

That is the Secretary’s and my goal—to ensure that OSHA

makes a difference where it counts—in the lives of every worker in

America.

Thank you. I would be pleased to answer questions.

Senator WELLSTONE. Thank you, Secretary Henshaw.

[The prepared statement of Mr. Henshaw may be found in additional material.]

Senator WELLSTONE. Mr. Lauriski?

Mr. LAURISKI. Mr. Chairman, thank you for this opportunity.

I am pleased to appear before you today to discuss the ongoing

efforts of the Mine Safety and Health Administration to promote

safety and health in our Nation’s mines.

Last year, we set meaningful and measurable safety goals to reduce mining industry fatalities and to reduce the nonfatal days lost

injury rate. I am happy to report that in 2001, the number of mining deaths and the incident rates of injuries in this country was the

lowest ever recorded. This year, like last year, we have set ambitious goals, but they are achievable goals, both for safety and for

health.

Beginning in around 1994, the industry reached a plateau in reducing injuries and deaths, so it was evident that we needed new

ideas and methods to get to the next level of safety and health.

This agency has primarily emphasized the enforcement mechanisms embodied in the Mine Act, focusing on physical conditions in

the workplace. The Act, however, provides us with a broad range
9

of tools such as education and training, compliance assistance, and

technical support, in addition to enforcement.

In numerous meetings over the past year with our stakeholders,

we have been asked time and time again to use tools that are preventive rather than reactive. Utilizing this input from our stakeholders, we have devised a management plan to help move the

mining industry to anew level of safety and health. This plan focuses on more collaboration with stakeholders, assistance to the industry in preventing accidents and illnesses, and improvements in

internal practices to enhance mine safety and health performance.

Our stakeholders have committed themselves to work collectively

to meet our health and safety goals.

There are two major accident investigations which I know are of

interest to you. First is the Martin County Coal Company’s impoundment breakthrough in Inez, KY. When I began at MSHA, the

investigation of that incident was completed, and the report was

ready to be released.

MSHA cited the company for two violations that contributed to

the release of 300 million gallons of coal slurry, and we assessed

each of those violations at the statutory maximum $55,000 civil

penalty.

As a result of the failure, I ordered an internal review of our procedures related to that impounded into our general coal mine impoundment procedures and processes nationwide. That review is

nearing completion.

We are also working with the Department of Interior’s Office of

Surface Mining to improve communications and discuss how to best

address the recommendations of the National Academy of Sciences

Impoundment Report that Congress requested.

In September of last year, explosions at Jim Walter Resources

Number 5 underground mine in Alabama killed 13 miners and injured three others. We have completed the onsite part of our investigation, and the mine is now in production, and we are continuing

to analyze evidence to determine the cause of the explosion. If the

investigation reveals a violation of MSHA standards, we will take

enforcement action.

Some have expressed concerns about MSHA’s practice at the

mine, so I have assigned an internal review team to investigate the

quality of our management processes and procedures, including enforcement activities, at the mine and in the MSHA district in

which it is located. The review, like the investigation, is continuing.

MSHA will continue to enforce and meet its mandate under the

Mine Act. I want to emphasize that there will be no less enforcement. Enforcement will focus on more overall safety and health

matters and identifying system weaknesses that may lead to accidents.

Since we began our compliance assistance efforts last year, some

skeptics have said that we cannot increase compliance assistance

without lessening enforcement. I respectfully disagree. As you can

see in this chart, there was an increase in the number of citations

and orders that we issued—51⁄2 percent, to be exact—from 2000 to

2001. This increase cannot be attributed solely to a rise in the

number of mines, because we know that there was only a 11⁄3 percent increase in the number of mines during the same period.
10

Mr. Chairman, I use this statistic advisedly to show that MSHA

is committed and will continue to commit to its enforcement requirements. But MSHA’s principal objective is not to issue citations. It is to reduce fatalities and injuries. We do not believe that

the number of citations issued should become the measure of effectiveness in achieving our objective.

While we have seen a reduction in the types and severity of violations we have found at mines, we have also seen a reduction in

the injury and fatality rates. This chart shows the correlation between unsafe conditions in the workplace and accident rates. A significant and substantial citation, or an incident citation as the

chart shows, is issued for those violations that have a reasonable

likelihood of producing a serious injury or illness. This chart supports the basic philosophy of the Mine Act. A declining number of

serious violations correlates with the rate of decline and serious injury rates.

As I said earlier, we are concerned about the flattening of injury

and fatal incident rates. The traditional enforcement scheme is no

longer bringing a reduction in these rates. This is solid evidence

that we need to move the agency in a new direction. We must use

other tools. To do otherwise is to accept the status quo, and accepting the status quo is not something that we should be willing to

do.

We are revamping our internal training programs to strengthen

our processes, to correct any existing weaknesses or gaps, and most

importantly, to further support our own staff’s health and safety

skill sets.

We are also responding to our stakeholders’ call for more userfriendly training materials and mine site training for mine operators and miners and have translated numerous materials into

Spanish.

Secretary Chao recently announced a major new compliance assistance initiative to help employers better understand and meet

their responsibilities to protect workers. In support of that initiative, we at MSHA have developed a compliance assistance plan

that sets out specific steps that we are taking to improve our outreach to mine operators and miners.

Our website provides access to a multitude of resources for compliance assistance. It also provides access to MSHA’s data retrieval

system to retrieve mine-specific information. More reports will be

added to this system as time progresses, and the website will soon

be available in its entirety in Spanish.

Compliance assistance is always needed when new regulations

are issued. Prior to the effective date of the new final rule on hazard communication, we will hold 15 national rollout meetings and

about 100 supplemental local meetings to give mine operators the

opportunity to learn how to comply with the rule. We will also provide onsite compliance assistance.

Operators of small mines face unique challenges in protecting

their workers, so we are establishing an Office of Small Mine

Health and Safety that will coordinate a National Small Mine Initiative to assure compliance at small mines and to give compliance

assistance.
11

And we are reviewing existing regulations to determine applicability to current mining practices and to identify those that create

undue burden on small mine operators.

MSHA has published several important final rules recently. The

hazard communication rule, which is an information and training

rule, will reduce injuries and illnesses related to chemicals in the

mining industry. The high-voltage longwall rule allows a mine to

use current technology without the need to petition this agency for

a modification of the existing standards. The Office of the Inspector

General made three recommendations on asbestos that would require rulemaking, and recently completed seven public meetings to

gather information and data to assist us in our deliberations on

these issues. We also solicited written comments in the public comment period just closed this past Tuesday. We are also continuing

our work on health rules that will address respirable coal mine

dust concerns.

Finally, technical support is another tool of the Mine Act. Our

technical experts are creating partnerships to more effectively identify and evaluate technological solutions to mining hazards, and we

are also identifying new technologies to address emerging hazards.

In conclusion, Mr. Chairman, we have examined our way of business and look for new ways to use our existing tools to get to the

next level of improved health and safety performance. I have just

outlined some of those for you. I am confident that, working in

partnership with our stakeholders, we can achieve these goals.

Mr. Chairman, that concludes my prepared remarks, and I would

be happy to answer any questions.

[The prepared statement of Mr. Lauriski may be found in additional material.]

Senator WELLSTONE. I would like to thank both of you, and I will

start with Mr. Henshaw—and by the way, I do appreciate, Mr.

Henshaw, that the trend of reduction in injury and illness is important, but what we want to do is make sure that it continues that

way. We want to make sure that the kind of vigilance that we have

seen in the past continues. But I appreciated your comment that

however much improvement you feel we are making, we can still

do better. I very much appreciate your saying that.

Let me start out by giving your own background. On numerous

occasions before this committee and in speeches, you have said that

as a safety and health professional—and you are one—you have

one goal, and that is to reduce workplace injuries and illnesses and

fatalities, and that during your tenure at OSHA, that is going to

be the agency’s main focus.

Isn’t one of OSHA’s major tools for reducing exposure and the resulting injuries and illnesses and fatalities the promulgation—the

promulgation—of safety and health standards, and isn’t the promulgation of standards one of the agency’s major responsibilities

under the Occupational Safety and Health Act?

Mr. HENSHAW. Certainly, Senator, that is one of the tools that

we have is setting appropriate standards and enforcing those

standards. So that is an appropriate tool, yes.

Senator WELLSTONE. Then, why don’t you list standard-setting as

one of your top priorities? You have said in written testimony that

the top priorities are building OSHA’s leadership, enforcement, out-
12

reach and education, and voluntary partnerships and programs,

but you have not said that one of your top priorities is the promulgation of standards. Why not?

Mr. HENSHAW. I think I have said that the execution of our regulatory agenda is a top priority within the agency, and that is the

issue around what we described in the May issue of our Regulatory

Agenda is what we are going to accomplish, and I think that if you

look at the same speeches, you will hear me say that we are holding our managers accountable for accomplishing those endpoints as

described in the regulatory agenda.

To me as a manager, that means that that is a primary focus certainly for those groups that are involved in developing those standards and regulations. They are going to be held accountable for

achieving those goals described in the Regulatory Agenda.

Senator WELLSTONE. Let me pursue why I am concerned about

not listing the promulgation of standards as one of your primary

objectives, because I think that that is where OSHA has been at

its best is these standards, which have really led to the protection

of the work force.

Let us look at OSHA’s regulatory program. With respect to your

regulatory program, the administration has removed more than a

dozen regulatory initiative from its regulatory agenda, including

standards updating permissible exposure limits, expanding the

chemical process safety management standard to cover reactive

chemicals, extending the lockout-tagout standard to the construction industry and regulating cancer-causing chemicals like metal

working fluids.

The development of many other standards has been delayed, including standards on hexavalent chromium and silica.

So instead of focusing on these major hazards, the administration

has identified the following as its priorities for regulation: signs

and barricades; translating the exit route standard into plain

English terms; and an administrative rule on changes in State plan

regulations.

Can you tell me how many injuries, illnesses or fatalities OSHA

estimates they will prevent through the promulgation of these

standards, and why are these the priorities for the administration

as opposed to the promulgation of standards dealing with the really

serious hazards that are out there?

Mr. HENSHAW. Senator, I think you are referring to that in the

last l few months, we have released four final rules, one of which

is the signs and barricades that you mentioned. And I am sure that

you are aware that we still have way too many highway fatalities

or fatalities of workers in work zones. This is a major problem in

this country, and it is very critical that we get those standards updated.

The previous standard that OSHA had on the books was in 1973

which is critically in need of repair and improvement, and that is

what this direct final rule was all about. I don’t know what the estimate is as far as how many lives could be saved, but certainly we

are talking about a serious fatality risk in work zones in this country, and we think that this standard will improve that.

Senator WELLSTONE. But my question—listen, you are always

gracious when you come up here to testify—but with all due re-
13

spect, I do not see how a regulation on signs and barricades and

the other things I mentioned are more important than addressing

tuberculosis or the dangers of explosion from reactive chemicals or

unburdening workers from having to pay for their own protective

equipment or shielding workers from chemicals that cause birth defects, miscarriages, and other reproductive health problems.

Where is the promulgation of standards that deal with these

major concerns that affect our work force?

Mr. HENSHAW. Senator, some of those are on our regulatory

agenda. If I might, I would like to just reiterate—you mentioned

that we had withdrawn several items from the old regulatory agenda. The old regulatory agenda had something like 58 items addressed. We had so many on the regulatory agenda that a few of

them got lost, and for some reason, we cannot find out why they

were not recorded in the following 6-month period, like in shipyards. We had items in there that were from the early 1980’s and

late 1970’s that were not being addressed.

As a manager, my job is to fine-tune a group of professionals to

work on issues and resolve those issues. If we have too many

things on our plate, we get nothing done, so it is critical that we

pick the right priorities and work on those.

As I mentioned before, the regulatory agenda is what we are

going to do in the next 12 months, and tuberculosis is on that regulatory agenda. Glycol ethers are on that regulatory agenda.

Senator WELLSTONE. Well, let me give you a case study just to

take this line of questioning a little further. Let me focus on a

minute on the process safety management rule for hazardous

chemicals.

A study by the Chemical Safety Board concluded that 66 workplace deaths and 404 injuries took place in the 5 years between

1992 and 1997 that were attributable to reactive chemicals and not

covered by OSHA’s current standard. At the end of the last administration and the beginning of this administration, OSHA was beginning to consider a rule to deal with the gaps in coverage. And

the first step was to issue a request for public comment—that was

the first step—on which chemicals not currently covered should be

included in how OSHA should regulate them. That was in May of

2001.

In September of 2001, the current PSM rule showed up on the

now infamous hit list of 57 rules that industry lobbyists thought

should be eliminated as too burdensome. In December of 2001, the

rulemaking to expand the process safety management rule was

withdrawn because of resource constraints and other priorities—

not postponed, not delayed, but withdrawn.

Did you truly not have the resources to put a notice out to the

public asking them for their ideas? What could have been more important than that? What initiative bumped that completely off your

agenda? Was it the signs and barricades initiative? Was it the

translation of exit routes into plain English? I do not get these priorities.

Mr. HENSHAW. Senator, the issue is not as simple as just issuing

a request for information, and I will give you a case-in-point. It is

critical that we look at what is our work load, what are our re-
14

sources, and what can we get done over a period of time. And what

I do not want to do is waste time.

The case-in-point is glycol ethers. It is on the regulatory agenda,

but the last time that that was addressed by OSHA was in 1994.

Now we have to reinitiate our request for information because technology and the processes have changed.

So what I do not want to do is be premature in requesting information, because that information has to be used. If we are going

to require people to submit the information, and we are going to

study it, we need to take it to the next step and not just let it languish. And the problem now with glycol ether is that we have to

reinitiate the work. And in any standard, it is very critical that

they understand how compounds are being used, because—this has

to be a rifle shot, Senator—we have to make sure that we promulgate a standard that is as effective as we possibly can make it.

That means we have to collect valid information, it has to be relevant to today and the industries and technologies of today, and

then we have got to move forward with the promulgation of the

right standard.

So a request for information, while it seems like a simple task,

the point is that somebody spent a lot of money generating the information, and now we have to use it. If we do not use it, we have

wasted all that time and energy, and I do not want to do that in

the future.

Senator WELLSTONE. You did not know—I do not want to belabor

the point—but we have this Chemical Safety Board which has clear

conclusions about deaths and injuries, and then, you have the industry that has the hit list, and then, the rulemaking to expand

the rule is withdrawn. You did not know what questions to ask?

You are telling me that you did not know what questions to ask;

is that your position?

Mr. HENSHAW. No, sir, that is not what I said. I said I did not

want to ask questions and get information that I could not use,

that I could not take it to the next step, or would be wasting time

and energy to do that, such as in the case of glycol ether.

Senator WELLSTONE. If you do not ask the questions and you do

not go out there, there is no next step. You cut the whole process

off.

Mr. HENSHAW. No, sir. The regulatory agenda does not mean— when we took things off the regulatory agenda, it does not mean

they are not going to be addressed. It just means that in the next

12 months, here is what we are going to focus on, here is what we

have decided will be our priorities.

We can always argue the priorities. If you want to argue the priorities, that is a separate issue. But once we decide what our priorities are, then we have got to carry through with those items, and

the decision was—— Senator WELLSTONE. So the priorities—well, there are two different questions—so when is this going to be addressed?

Mr. HENSHAW. It is still in our list of things to look at.

Senator WELLSTONE. Eighteen months from now?

Mr. HENSHAW. I cannot say precisely when we will address that.

Senator WELLSTONE. Well, I think this is more important than

signs and barricades. It is a question of priorities.
15

Now, you are highly-qualified safety and health professions, with

many years of experience dealing with occupational safety and

health issues in the chemical industry, and you served as president

of the American Industrial Hygiene Association.

Is it your position as a safety and health professional that the

current OSHA standards that are on the books are sufficient to

protect workers from significant risk of harm and injury, illness, or

death, as OSHA requires?

Mr. HENSHAW. I think there are two parts to that question, if I

may.

Senator WELLSTONE. Certainly.

Mr. HENSHAW. Some of our existing standards are in need of revision, and I think that is a fallacy that we have had in the past,

that once a standard is written, it is forever, and it should not be.

The reality of the world is that it changes on a regular basis, and

our standards must be updated to meet those realities. That is

number one. So our existing standards even themselves need to be

frequently updated and modified to accommodate the world in technology.

In respect to new issues that have not been addressed by the

agency, certainly the agency needs to continue to develop regulations, but we need to continue to develop those in a way that we

select the priorities in the proper fashion and we execute our obligations when we prepare these standards, that we do them in a

way that is sustaining, do them in a way that produces the effect

that we are looking for, which is helping to reduce injuries and illness.

Senator WELLSTONE. Well, I want to say to you that I appreciate

your answer—or, I appreciate your position—which is, No, Senator,

obviously, we do not necessarily have enough standards, and it is

a matter of our priorities, but I do not see anything more important

than, again, addressing tuberculosis, dangers of explosion from reactive chemicals, unburdening workers from having to pay for their

own protective equipment, shielding workers from chemicals that

cause birth defects. To me, these should be the priorities now. I do

not understand what I consider to be the delay.

Let me ask you about enforcement. I know that you focus on the

really bad apples, but the number of significant enforcement cases

has come down in the last couple of years, but the total number

of egregious enforcement cases has come down as well. So if you

project out the 2002 numbers, inspections in manufacturing are

down 16 percent; the number of workers covered by your inspections is down 30 percent, 56 percent for manufacturing; and the

number of hours your inspectors spend in safety enforcement is

down 22 percent; and health inspections are down 20 percent.

So it seems to me that you are spending less time protecting

fewer workers. Am I wrong about these 2002 numbers in terms of

the number of inspections going down?

Mr. HENSHAW. The number of inspections is not going down. In

fact, we are increasing the number of inspections. Now, clearly, as

a result of the World Trade Center, resources were about 3 percent

off of our goal—— Senator WELLSTONE. Serious inspections. Excuse me. The number of serious inspections.
16

Mr. HENSHAW. The number of serious violations in fact has gone

up. I do not know what ‘‘serious inspections’’ you are talking about.

But the number of willful violations and serious violations has gone

up.

You spoke about significant cases, and the significant case is just the arbitrary cut-off of those violations or penalties above $100,000.

Using that arbitrary cut-off, Senator, those are less than it was last

year and the year before.

Senator WELLSTONE. That is what I was referring to. I am looking at your own answers to our questions.

Mr. HENSHAW. Right. And those were significant cases, which is an arbitrary cut-off of those cases above $100,000.

What we do have, however, increasing is that the serious and

willful violations are up. Senator, I do not use significant cases as

a goal mainly because it is an arbitrary number, and I do not want

to drive a performance that drives unintended consequences, meaning pushing to get above $100,000 to meet some sort of expectation.

Senator WELLSTONE. OK. I just want to take note, thought, for

the record in terms of some of the information that I have here

that the total number of significant cases—that is $100,000 or

more—— Mr. HENSHAW. Which is an arbitrary cut-off.

Senator WELLSTONE. I understand—but by your own figures, has

gone down each year, and the number of egregious enforcement

cases conducted by OSHA also has gone down. Is that correct?

Thank you.

Let me turn to Mr. Lauriski for a moment. I appreciate your

being here, and also, I am encouraged by your reassurances that

you have provided today that MSHA is fully committed to continuing enforcement of the Mine Act. But I am worried about some of

the actions that you have taken that I think are going to make it

difficult to do so, so let me ask you a few questions, starting out

with dust sampling, because we have talked about that before,

which is something that I have been interested in for a number of

years.

For a number of years, MSHA has sampled for coal dust in each

mine six times a year. Is it your intention to continue to sample

six times a year?

Mr. LAURISKI. Senator, it has not been a number of years. Up

until 1998, the frequency of those samples was four times a year,

and even prior to that, it was one time a year. I think that since

1998 or 1999, the frequency was one to six times a year.

We had a decision that came down called Excel Mining that required us to take a re-look at how we were doing our dust sampling

and the frequency with which we had to do it, principally because

the court decision required us to not rely on multiple samples

taken over a single shift for compliance purposes, but for us to look

at multiple samples taken over multiple shifts to determine compliance.

So in that regard, we did reduce the frequency by which we take

samples, MSHA, that is, but not the frequency with which an operator is obligated to take samples. They still have that obligation

under the Mine Act. We do our obligation as part of our routine

fours and twos inspections, and we have made those samplings to
17

be consistent with the times that we are onsite to do our mandatory inspections.

Senator WELLSTONE. Well, I have gone through this before

about—I am not so reassured by the companies taking their own

samples, nor the miners. I do not quite understand—how can you

justify reducing the number of times that you sample for dust

given the magnitude of the problem of miners not being able to see

6 inches in front of them because of coal dust levels?

Mr. LAURISKI. Senator, the number of samples that is actually

being taken is not less today than it was prior to the Excel decision. The frequency with which we take samples as an agency has

been reduced by just two times per year. However, again, there is

no less frequency on the part of the operator to supply these samples.

Senator WELLSTONE. But I am talking about oversight. One of

the things that we have learned, I believe—this past week, it is on

the Senate floor—is that we do not ask the accounting industry to

monitor the accounting industry. It does not work out too well. And

in the same way, we do not ask this industry to monitor. We want

oversight. We want MSHA to be there. And you play a key role,

yet you are reducing the number of times that you are sampling

for dust.

Mr. LAURISKI. But again, Senator, we are not reducing the number of samples being taken over that same period of time. It is still

the same sample level as it was before; it is just that we are not

on the site as frequently as we were before with dust sampling

equipment. We are now matching our sampling strategy against

the number of times that we are mandated to inspect the mines

each year.

So with that, what happens is that it allows us to look at those

areas that are in most need of our attention, those areas where

samples exceed the exposure limit, as opposed to sampling those

areas where there is not an exposure limit exceeded.

Senator WELLSTONE. Well, again, the only thing I can tell you is

that the people who pay the price—the miners—are certainly not

comfortable with your answer, which is the same number of samples, but we are relying on the industry to do some of this as opposed to our doing it more times per year. And I think we were

counting on you, MSHA, to do it. The fact that the industry is

doing more of the sampling is not the answer to the question.

The coal industry has a long and unpleasant history of coal dust

sampling fraud. You know that, and I know that. And that is the

very reason for the agency’s strong enforcement role. That is what

you are supposed to be about. And you cannot say it is not a problem because we know it is a problem.

I am told that as recently as this year, we have seen four people

convicted of dust fraud in the State of Kentucky, and as long as

there is one case of fraud, as long as one miner continues to suffer

from black lung disease, it is the obligation of the agency to do all

that it can to enforce the full extent of the law’s coal dust exposure

limits. And I will tell you that I do not think that reducing from

six to four times that the agency samples for coal for coal dust is

the way to accomplish this goal.
18

We have a major difference here. You cannot tell me that we

have not gotten the clearest example of fraud on the part of this

industry.

I want to ask you about the metal/nonmetal interim diesel particulate rule. Is the interim concentration limit going to go into effect

as scheduled?

Mr. LAURISKI. Senator, the interim concentration limit level has

been challenged by several parties to the rule that was final last

year. The interim standard is due to go into effect on the 19th of

this month. We are currently in negotiation with all the parties to

the litigation to determine where we are going to be at the 19th.

At this point, I cannot say whether it will be at the 400 microgram

level or not, or whether there will be a different level.

We undertook in this negotiation with the parties, with labor, industry, and MSHA, a look at the sampling strategy and a look at

our ability to sample for particulate matter in an adequate manner

to determine whether or not the sampling equipment that was on

the market was capable of determining the levels that made a determinant, and that process is wrapping up. I hope that before next

Friday, we are able to move forward and that we will have a final

rule, but to sit here and tell you that it could be at the 400

microgram level, I cannot do that today.

Senator WELLSTONE. But you will have an answer within a week

or so?

Mr. LAURISKI. Yes.

Senator WELLSTONE. And let me ask you this. If the rule goes

into effect, whatever the standard is, will you enforce the standard

on the date it goes into effect?

Mr. LAURISKI. Yes. That is part of the negotiations that we are

having with the litigants in terms of how we would implement the

400 microgram level. Now, keep in mind this is not a permissible

exposure limit; it is simply a concentration limit that is taken in

the mine. So again, that could depend upon the negotiations and

any settlement which would come out of those negotiations between

now, and hopefully, again, by the time that the limit is scheduled

to go into effect.

Senator WELLSTONE. If it goes into effect, if the regulation is

written and is supposed to go into effect on the 19th, will you go

to court on the 19th if no settlement is reached?

Mr. LAURISKI. Well, it is already before the courts, and we just

as recently as this week filed an update with the court system, so

if there is not successful settlement, then obviously, things would

be as they were a year ago. but I am very optimistic that we are

going to reach a settlement with the parties in this matter.

Senator WELLSTONE. I am not a lawyer, so this a layperson’s

question. I do not understand why part of your answer was—it

would be one thing to say we are still in negotiation over exactly

what the standard will be, but then I asked whatever the standard

is, will you—and I am now thinking about the well-being of miners

and are you going to start enforcing it when it goes into effect. Why

do you have to wait until next week to tell me whether you are

going to enforce the standard once it goes into effect?

Mr. LAURISKI. Well, quite frankly, the standard is in effect. The

only thing that comes about next week is the interim concentration
19

limit of diesel particulate. And of course, if we do not reach settlement, we are already enforcing that part of the rule that went into

effect a year ago. The only thing that is outstanding, again, is that

portion that has to do with the interim concentration limits, and

again, I am going to say that we are hopeful that we will have resolution of this issue by next Friday so we will have a rule that is

complete without challenging the court.

Senator WELLSTONE. And I am hopeful that you will, too, and I

am also hopeful that you will go on record that you will enforce

that immediately, that the enforcement will not be put off.

Let me go to Martin County Coal. First of all, we know the history of it, so I do not know that I need to go over that with you.

MSHA wrote only two violations for the October 2000 County Coal

impoundment failure, one for not following the approved plan to redirect the discharge of the fine slurry along the seepage barrier,

and one for failing to immediately report a significant increase— more than double, as it turns out—in water flow from the South

Main Portal in September of 1999.

Can you explain these inconsistencies?

Mr. LAURISKI. I am not quite sure I understand the inconsistencies that you are speaking of, Senator.

Senator WELLSTONE. Why only two violations, and that is it— and my understanding is that one of them, the fine was $110,000.

Is that correct?

Mr. LAURISKI. Total.

Senator WELLSTONE. Total. For the most massive ecological disaster ever experienced in the Southeast, and the total fine was

$110,000. Don’t you think the penalty should have been increased?

Mr. LAURISKI. Senator, we assessed the penalty at the maximum

allowed by statute.

Senator WELLSTONE. That is all you could do by statute?

Mr. LAURISKI. That is correct.

Senator WELLSTONE. Then, would you agree with me that we

ought to change that statute and have stiffer penalties?

Mr. LAURISKI. Senator, I—— Senator WELLSTONE. Because with your support, I am pleased to

do that.

Mr. LAURISKI [continuing]. I understand that, and it is something

I would like to consider, but I would prefer not to say today that

I am ready to make that determination.

But I do want to make a correction, however. There were not just

two violations that were issued to Martin County Coal. There was

a total of 11. Two were contributory, and the others were noncontributory to the incident itself.

Senator WELLSTONE. I am focusing on the contributory. My understanding is that the State of Kentucky wrote five citations, none

of which MSHA cited; is that correct?

Mr. LAURISKI. I do not know that, Senator. I can find that out

for you.

Senator WELLSTONE. That would be helpful. And I cannot get you on record as to the $110,000 seems to be a pretty flimsy, weak

fine for the damage that this company did to the people?

Mr. LAURISKI. Well, again, that is the statutory maximum that

is allowed, and that is what we assessed on these two citations.
20

Senator WELLSTONE. Tell me if I am wrong here. It is my understanding that the investigating team found clear evidence that

Martin County Coal knowingly submitted false information as part

of its plan to reopen the impoundment after the 1994 failure. They

took testimony from one of the people who drew the map submitted

in 1994, admitting that they knew there was not a 70-foot coal barrier, and they took testimony from the contractor who built the

seals that the plan he followed was not the same plan that was

submitted and approved by MSHA.

It is also my understanding that both of these factors potentially

directly contributed to the impoundment failure, yet MSHA did not

cite the company for either of these violations. Is that correct?

Mr. LAURISKI. My understanding in reviewing the investigative

report and talking with the investigators is that there was a determination made that there was no inaccuracy in the mine map

itself.

However, with respect to the seals that were built, there was a

violation issued to the country as well as to the contractor that did

built those seals. But it was the opinion of the investigation team

that even though those seals were changed in a design that was

different from what the plan approved, the seals as they had been

changed or as they had been approved would not have withstood

the massive amount of slurry and pressure that would have been

placed against them after the release of the slurry from the impoundment.

There was, however, a violation issued on the seal construction,

but it was not determined to be contributory.

Senator WELLSTONE. Wow. Did any member of the original investigating team express concern about the findings included in the

final report?

Mr. LAURISKI. Senator, before I arrived at MSHA, that was my

understanding, that there was a concern expressed about the investigation. Secretary Chao asked for an IG investigation which is still

ongoing.

At the time that the report was released, I personally spoke with

all the investigators and asked them personally if any of them had

issue with the investigation or the investigative report, or if they

had any issues with signing that report, and with one exception,

all of the investigative team members agreed with the report’s findings and agreed to sign it. One individual who had concerns asked

me if I would consider not having his name on the report and if

I would consider not having him sign the report, and I told him

that would be fine.

Senator WELLSTONE. Did you express any reluctance to sign the

report?

Mr. LAURISKI. I did not sign the report.

Senator WELLSTONE. You did not sign the report.

Mr. LAURISKI. I did not——

Senator WELLSTONE. I am sorry. Did they express any reluctance

to sign the report?

Mr. LAURISKI. Again, with one exception. I spoke with every

team member, and every team member that I spoke to, with one

exception, expressed no reservation about signing the report.
21

Senator WELLSTONE. Was any member of the original investigating committee pressured in any way to sign the final report?

Mr. LAURISKI. No, sir, not to my knowledge—not by me.

Senator WELLSTONE. And you mentioned the investigation now

going on. It has been nearly 2 years since this happened. There is

an ongoing IG investigation going on right now, your own internal

investigation; is that correct?

Mr. LAURISKI. There are actually two. There is the IG investigation, and then, I ordered an internal review at the same time, or

at near the same time, that we released the report on Martin

County. That would have been in——

Senator WELLSTONE. So you have done your own investigation.

Mr. LAURISKI. We are doing our own investigation. It is still ongoing. But we are nearly complete.

Senator WELLSTONE. And please tell me, can this committee,

other Members of the Congress, and the citizens most affected by

this disaster expect a full accounting of what happened?

Mr. LAURISKI. Absolutely. That is the reason for the review. The

review is to look at MSHA’s management processes and practices

not only with respect to Martin County but with respect to how we

do these things on a nationwide basis—to look at our approval

processes for plans, to look at our inspections, to look at all of our

management of the impoundments themselves.

We are looking at two issues. One is to identify if we have weaknesses,and two is to identify if we have strengths. And where we

have weaknesses, we want to make sure that we make corrections

to those areas. That is why I ordered this internal review.

Senator WELLSTONE. Moving to the Jim Walters Resource Mine,

I am looking at these different—there are 31 citations, and one of

the citations—I am looking at one of the citations, one of 31, for

violations that were unabated at the time of the mine explosion.

This is dated September 18, 2001, 5 days before the mine explosion. It says, quote: ‘‘Float coal dust black in color was allowed to

accumulate in the intake for the future 3-East belt conveyor. The

accumulations were observed on the mine floor for a distance of

1,000 feet.’’ End of quote.

Then, there is a column for ‘‘S and S’’ and it is checked ‘‘No.’’

What does ‘‘S and S’’ mean?

Mr. LAURISKI. It is a designation to describe the seriousness of

the violations. We call it ‘‘significant and substantial,’’ which means

that it is a violation that has a reasonable likelihood to cause reasonably serious injury or illness.

Senator WELLSTONE. Well, I absolutely do not understand this

report here. Experts that I have spoken with say that 1,000 feet

of float coal dust in a mine like this is highly dangerous. I have

never heard anybody say otherwise.

Do you have any idea why an MSHA inspector would treat this

as nonS and S?

Mr. LAURISKI. Senator, we are very concerned—no, I do not, because I did not see the condition, and the conditions that are

viewed at the time the citations are issued are what determine

whether or not an inspector would make that designation ‘‘significant and substantial.’’ I did not see it, so I cannot second-guess per-
22

haps what the inspector saw when he issued that particular citation.

However, one of the things that I mentioned in my testimony is

that we have ordered a complete internal review about our management practices as they did in Martin County with respect to

Jim Martin Resources and with respect to our management of District 11 to see if we were performing our duties in a diligent manner that was consistent with the law, and that investigation is ongoing.

Senator WELLSTONE. You have an ongoing investigation.

By the way, this form, as you probably know, then, if you are

doing the investigation, indicates that only one worker was affected. Does that sound right to you—1,000 feet of float coal dust

on the mine floor that affects only one worker?

Mr. LAURISKI. Again, Senator, I do not know what the circumstances were at the time the inspector wrote that particular

violation, and it would be wrong of me to prejudge and to place myself in his position when I did not have the same opportunity to

see the same things he or she saw. I cannot do that.

Senator WELLSTONE. Can you see any justification—let me give

you another example. Here is another one on September 14, 2001.

Nine hundred twenty-five feet of float coal dust on the mine floor—

925 feet—and also, nonS and S affecting only one person.

Another one on September 4, 2001. Six hundred feet of float coal

dust nonS and S affecting one person.

Why would this be treated as nonserious?

Mr. LAURISKI. Again, Senator, there are several—there are a lot

of factors that go into determining the seriousness of a violation to

categorize it as ‘‘significant and substantial,’’ and there have to be

circumstances that are looked at in addition to just the fact that

you had float coal dust in this instance. The inspectors are trained

to look at other issues—were there sources for ignition? How many

people were present in the area? All those factors are considered

at the time the inspector finds the violative condition and issues a

citation.

Given the fact that I was not there, I cannot tell you what the

conditions were at the time that the inspector saw the

particular——

Senator WELLSTONE. But you were not there on site.

Mr. LAURISKI [continuing]. I did not see what he saw.

Senator WELLSTONE. Yes, but you are the head of MSHA.

Mr. LAURISKI. That is correct, and that is, again, one of the reasons why I have asked for an internal accounting and internal review of our practices and procedures at this mine as well as in District 11, to have a better understanding, to know whether or not

we were managing our processes in accordance with the Mine Act.

Senator WELLSTONE. The number of persons affected—does that

have some bearing on the penalty that the company would ultimately have to pay?

Mr. LAURISKI. It can, yes.

Senator WELLSTONE. Because I see another one—7,000 feet of

float coal dust, and this one is actually marked ‘‘S and S,’’ not

‘‘nonS and S,’’ but it says only one person was affected.
23

I just cannot understand how any inspector could reach this conclusion. I am told—look, I am not from Alabama—but I am told

that Alabama mines are among the most gaseous in the country,

subject to explosions, and float coal dust is highly flammable. And

I just do not see how any inspector can say this is a nonserious

problem.

There were 31 unabated—I know you are nodding your head so

you know this—there were 31 unabated violations at this mine at

the time of the explosion that killed 13 miners. How could that

have happened?

Mr. LAURISKI. Well, from what we know, they were unabated in

the sense that we had not issued the termination paper. What I do

not know is whether or not those conditions had actually been corrected by the mine operator. That is part of the review that we are

undertaking to understand those practices and processes.

And again, I do not have the answers for you to understand why

the inspector would have allowed 31 violations to go

unterminated—and I think that is the better term here— unterminated—for a period of time if the operator had in fact corrected those conditions or, if they were not corrected, why extensions were not given, or more severe enforcement actions were not

taken.

I do not have the answer. That is part of the review that we are

undertaking that will give us a better understanding of what occurred there.

Senator WELLSTONE. But as the head of MSHA, you have an obligation to make sure that these kinds of conditions are abated; correct?

Mr. LAURISKI. That is correct.

Senator WELLSTONE. So you are not trying to justify this; you are

just trying to say that you do not know what happened.

Mr. LAURISKI. No, I am not trying to justify it. I do not have

a——

Senator WELLSTONE. You are just saying you do not know what

happened.

Mr. LAURISKI. I do not have the facts to understand—again I was

not there. I cannot determine why they were S and S, why they

were not S and S. I do not have the facts to understand why they

may have been left unterminated for a period of time. But the review team will give us that information.

I can tell you that—— Senator WELLSTONE. When is this review team going to give you

this information.

Mr. LAURISKI. Well, we are hoping that by the end of this year,

we will have that review completed. Just this week, they are on

site in Alabama, interviewing witnesses—I am sorry—interviewing

our employees with regard to some of these issues. They have been

reviewing records. This is a very long and lengthy process. We have

a dedicated team that is assigned to this project, and I am confident that they will return a report that will give us good information with which we can move forward.

Senator WELLSTONE. Let me say to you that part of the position

that you have taken is that you really cannot answer this yet because the investigation is not complete, which means that you can-
24

not answer a number of these questions. And I know you are going

to be doing this investigation.

I am sorely tempted to have this subcommittee—this is an oversight hearing, and I think maybe we might do an investigative

hearing as well and have people come in under sworn testimony so

that we can try to get to the bottom of it with you, because to me,

it is just—we had innocent people who were killed, and MSHA was

supposed to be there, and action was not taken, and people died.

And I want to get to the bottom of it, because I think your mission—and you agree—is critically important as it affects people’s

lives. I feel that way about the coal dust. I feel that way about

these other conditions. I feel that way about the ecological disaster

that happened. And I think it is time for this committee to get

tougher on these issues.

I want to give each of you—and I appreciate, again, both of you

being here. We have a markup in another room—there would be

more people here otherwise—and we have other people on the floor,

but I think it is extremely important for us to do this, and I appreciate the responsiveness that both of you are here.

I guess, Mr. Henshaw, our main disagreement may be at the moment over the whole question of priorities and the promulgation of

what standards and how quickly, and that is where I take some exception with where you are heading. And it does seem to me that

whatever your view is, I think the two of you obviously, everything

you do, you do honestly and you do sincerely, and it is what you

think is right.

I think in your case—and you also have the professional expertise which I think is extremely important for your job—it does trouble me when I think that what I consider to be some pretty important standards get on some hit list and all of a sudden are wiped

out, because I think the consequences of the inaction can be tragic.

I wonder if I could perhaps give each of you if you would like a

chance to respond. The questions have been tough and hard-hitting, and if you want some time just to conclude, and if there are

some other things you want to say for the record, please do so.

I do want to keep the record open for 2 weeks if that is all right

with you both. I think other Senators will want to submit questions.

I also want to include with unanimous consent a strong statement from Senator Kennedy as part of the record as well.

[The prepared statement of Senator Kennedy follows:]

PREPARED STATEMENT OF SENATOR KENNEDY

I commend Senator Wellstone for convening today’s hearing and

for his leadership in standing up for America’s workers. As I review

this Administration’s record on protecting worker health and safety

over the last year and a half, one pattern becomes crystal clear.

This Administration is imposing a terrible burden on America’s

working families. Time after time, the Administration has supported deregulation, weaker enforcement, and the rollback of worker protections in favor corporations rather than workers. The Administration is rolling back, stalling and delaying standards that

would protect millions of hard-working Americans from dangers on

the job.
25

The tragic consequence of this Administration’s inaction is the

toll it takes on the safety and health of working people. America’s

working families are paying a tremendous price in I injuries and

illnesses. Sometimes workers are paying for the Administration’s

indifference with their very lives.

The record of safety in our nation’s mines is dismal. The number

of on-the-job fatalities has risen each of the last two years. Last

year, in Alabama, workers suffered the nation’s worst mining accident in nearly twenty years. This year the number of mine fatalities is poised to be even higher than last year’s unacceptable rate.

These are the tragically predictable consequence of the backlog of

necessary, mine inspections.

This Administration has consistently failed to enforce policies

that keep miners safe.

The Administration’s policies on OSHA rulemaking have set

workplace health and safety back by a decade. Despite years of research and extensive consultation with employers, workers and

medical professionals, this Administration has simply thrown pending worker protections overboard. They have delayed or rolled back

pending standards on tuberculosis, beryllium and chemical exposure that would make a huge difference for worker safety.

Consider the Administration’s record on ergonomics for instance.

Ergonomic hazards are the nation’s leading cause of workplace injury, accounting for more than one-third of all workplace injuries.

The Administration has failed to offer any new ergonomics standard and has failed to deliver on a promised comprehensive approach to this problem. Without anymore ergonomics standard.

American workers have needlessly suffered over 1.8 million

ergonomics related injuries in the last year alone. The Administration has even cut back on the requirements on employers to report

ergonomic injuries in the workplace.

The Administration’s record is no better when it comes to the

hazards faced by America’s workers from beryllium exposure. The

health hazards are well documented—so wells documented that

Congress authorized compensation for workers who are ill as a result of beryllium exposure. However, many workers in the United

States still have no protection against exposure to beryllium.

OSHA proposed a rule that would have solved this problem but

this Administration has rolled back that proposed rule by issuing,

a new request for information. The research is already there.

America’s workers need action on this matter, not further delay.

The Administration’s record on occupational exposure to tuberculosis is equally dismal. Globally, TB kills almost 3 million people

a year. In the U.S., outbreaks have occurred in hospitals, correctional facilities, shelters and nursing homes among, other workplace settings. OSHA estimates that more than 5 million Americans have suffered occupational exposure to TB. This Administration again rolled back a proposed role that would have protected

workers when it comes to TB exposure. There is no question that

America’s workers are put at risk every day because of the lack of

adequate workplace protections from TB.

Proposed new standards to protect workers from exposure to

highly hazardous chemical combinations were also undermined by

this Administration. The U.S. Chemical Safety and Hazard Inves-
26

tigation Board has recommended new worker protections and these

protections should be implemented in a standard for dangerous

chemical combinations. This glaring gap in our workplace health

and safety standards has claimed the lives of over one hundred

workers in recent years. Yet, this Administration refuses to take

serious action.

With rule after rule, it’s the same story. The facts are clear. A

rule is proposed to protect worker safety and then this Administration rolls it back. The Administration has even called for a more

than 10% reduction in the number of full-time employees who develop worker protection standards. These are not the actions of an

Administration serious about protecting workers.

American working families deserve better. They deserve action.

They should not be asked to choose between their jobs and their

health. Yet that is exactly what they must do every day because

this Administration refuses to put meaningful protections in place.

I look forward to the testimony our witnesses today and I hope for

greater action to protect America’s workers from the responsible

agencies in the future.

Senator WELLSTONE. Would either of you care to conclude with

any remarks? If so, please do so.

Mr. HENSHAW. Senator, I would just briefly—I do share, obviously, your concern, and as you know, I am deeply committed to

accomplishing the result which is reducing fatalities and injuries

and illnesses. And the issue around the regulatory agenda and the

priorities, it is true, is a priority issue, but I see a lot of issues, and

when you talk about the signs and barricades, that is a critical

issue. If you remember, a few months ago, give workers were killed

when a truck drove through a construction site on a roadside. That

is very impactful to me and obviously to this Nation when we lose

five workers in one incident. And whether it is the signs and barricades or other contributing factors, the point is that that has got

to be a focus, and I really want to focus on that.

So we can argue about whether it should be signs and barricades

or reactives. That is fine, and we should debate that. But I am

going to make my best judgments as to where we can be the most

impactful on reducing fatalities, injuries, and illnesses.

On the issue of our inspection process, I firmly believe inspections are a critical part of being successful in our mission and

goals, and we will continue to foster very strong and forceful inspections.

The measures that I am going to be using which will drive the

outcome, which is reducing injuries and illnesses and fatalities—

they will not be arbitrary numbers. They will be numbers or measures that will reflect on the outcome that we are looking for, which

is reducing fatalities, injuries and illnesses.

While it may be that the significant cases are down, which is an

arbitrary cut-off, the number of serious violations or the percent of

serious and willful violations, and the average penalty per violation, is up. To me, those are indications that we are still strong on

enforcement.

So we will continue to drive those kinds of things. We will also

drive and get into more workplaces. That is why the number of our
27

inspections is up and will continue to be up over the next few

years.

So I share your concern. We are working very hard, and I am

committed to accomplishing results.

Senator WELLSTONE. Thank you, Mr. Henshaw.

Mr. Lauriski?

Mr. LAURISKI. Senator, I would just like to conclude by saying

that I share your concern as well about these accidents, and I want

you to know that I take this job very seriously, and I take what

has happened there very seriously. But I think it would also be inappropriate for me to offer premature information that I do not

have. I think it is more appropriate to have the facts so that you

can know the solutions to the problems. Otherwise, we are not getting at the root cause of what could or could not be an issue here.

What I want you to know as well is that we in MSHA take our

jobs very seriously. We have a staff of dedicated professionals who

have a great deal of passion for improving the health and safety

of this Nation’s miners. And I think that that is evidenced by this

chart that is on my left. The Act is having the impact that it was

designed to have. However, it is also very evident that there has

to be more than what we have been using as our basic mechanism

for the past 25 years, and that is enforcement. And that is evidenced by the leveling of our progress in this industry.

So we think that there has to be more to the equation than just

enforcement—not lessening of enforcement but other tools that we

bring to the mix, tools of education and training, tools of technical

support and tools of compliance assistance. And working together

with all of those tools, we think we can get this trend in the right

direction again.

I appreciate the opportunity to appear before you today, and I

appreciate the questions.

Thank you very much.

Senator WELLSTONE. I appreciate both of you being here, and we

will hear from you again.

I did not mean to be fidgety. I was just told that I need to go

and vote in another committee. My thanks, our thanks, the committee’s thanks, to both of you for being here.

This hearing is adjourned. Thank you.

[Additional material follows:]
28

ADDITIONAL MATERIAL

PREPARED STATEMENT OF JOHN HENSHAW

Mr. Chairman, Members of the Subcommittee: Thank you for this opportunity to

discuss the Occupational Safety and Health Administration’s (OSHA) commitment

to protecting America’s workers. I would like to discuss the Secretary’s and my vision for the Agency and the progress OSHA has made in achieving that vision.

When we look at the state of occupational safety and health in this Nation, we

have many reasons for optimism. The overall injury/illness rate has fallen for eight

consecutive years. At 6.1 per 100 workers for 2000, it is the lowest since the Bureau

of Labor Statistics started compiling this statistic. Since OSHA’s inception in the

early 1970’s, the rate has fallen by about 45 percent. In those industries where

OSHA has targeted its inspections, such as construction, there have been even

greater improvements.

Furthermore, the extent of cooperation between business, labor, and OSHA, as

measured by the number of partnerships, participation in voluntary programs, and

amount of compliance assistance activity, also is higher than ever and continues to

promote worker protection.

Even though we have accomplished much, there is also a great deal left to do.

Nearly 6,000 workers suffer fatal accidents each year, and in the year 2000 alone,

there were 5.7 million injuries and illnesses in America’s workplaces. Our work is

focused on driving down fatalities and injuries and illnesses even further.

ENFORCERMENT ACID REGULATOR ACTIONS

Enforcement and regulatory actions are certainly two of our important tools for

making workplaces even safer. Mr. Chairman, you asked me to discuss OSHA’s en- forcement and regulatory efforts over the past year, so let me summarize our work

in those areas for you.

Strong and fair enforcement is an essential part of our mission. OSHA is increasing its enforcement efforts in 2002, with more inspections. particularly health inspections, and targeting the most dangerous workplaces. We plan to conduct 36,400

inspections this year and will focus more enforcement on workplaces such as construction and other high-hazard industries. Approximately 3,000 of our inspections

will be in workplaces with the highest injury/illness rates. Employers with fourteen

or more injuries or illnesses per 100 workers that result in lost workdays can anticipate an inspection. Employers who experience a rate of between eight and fourteen

injuries or illnesses are on a secondary list for possible inspection.

Effective and credible enforcement depends upon the skills, training, and expertise of OSHA’s compliance officers. To accomplish their mission, compliance officers

must be experts in workplace conditions and the industrial practices in the workplaces they visit. To ensure that compliance officers have that expertise. OSHA

plans to increase the number of compliance officers who are certified by professional

associations of industrial hygienists and safety engineers. Certification will improve

respect for compliance officers and increase employer and employee trust of OSHA

enforcement staff. We are also considering recruitment of more compliance officers

from the private sector and allowing staff to complete internships with employers.

These steps will strengthen the effectiveness of our compliance officers and enable

them to become more familiar with the workplaces and industries that they inspect.

OSHA is also setting realistic goals and meeting its objectives for our regulatory

program. I have spent the past year assessing the Agency’s capabilities and planning regulatory priorities. OSHA’s regulatory agenda now reflects an honest appraisal of what we can reasonably accomplish and the commitments we plan to

meet.

Publishing ‘‘wish lists’’ of regulatory actions that never get accomplished harms

the Agency’s credibility in the eyes of both employers and employees. For instance,

we recently removed several shipyard projects from the Regulatory Agenda. Although some of these projects had been on the Agenda for as long as twenty years,

they did not involve significant changes or improvements to OSHA’s shipyard standards and were never completed. The current Regulatory Agenda, published May 13,

2002, anticipates the publication of two final rules, including a revision to the exit

routes standard, and seven Notices of Proposed Rulemaking, in the next six months.

Beyond tightening our regulatory agenda. OSHA’s standards setting will also be

strengthened by restructuring the Agency. To accomplish our strategic plan goals

and program priorities. OSHA has proposed a restructuring of the national office’s

functions. One of the changes is to merge OSHA’s Directorate of Health Standards

and Directorate of Safety Standards. to provide a more integrated and efficient approach to rulemaking. The merged organization will continue to carry out the De-
29

partment’s commitment, consistent with applicable law, to development of standards

based on sound science, public safety, and considerations of economic feasibility.

Beyond our regulatory and enforcement activities, OSHA is also showing critical

and measurable leadership in other ways. During the nine months of rescue and

clean up at the World Trade Center site, we protected thousands of workers by overseeing the fitting and distribution of more than 130,000 respirators, handing out

over 40,000 pieces of personal protective equipment. and taking more than 6,000

bulk air samples. We also monitored safety conditions to ensure problems were fixed

before anyone was hurt. We are pleased to report that we helped return thousands

of workers safely to their families at the close of their exhausting shifts. There were

no worker-related deaths and only 35 lost time injuries—a remarkably low rate of

2.3 injuries per 100 workers.

OSHA also played a central role in addressing hazards associated with bioterrorism. Working with the Postal Service, the Centers for Disease Control, EPA, and

the FBI, OSHA produced a Risk Reduction Matrix for anthrax in the workplace. The

matrix helps employers assess the risk of anthrax exposure in their workplaces and

make the timely and accurate decisions necessary to protect their workers.

Another issue in which OSHA is taking the lead is the safety of immigrant workers. As this committee has pointed out, many immigrant workers lose their lives on

the job. OSHA is targeting inspections at workplaces such as meatpacking plants

and nursing homes where there are large numbers of immigrant workers. We have

added Spanish-language capability to our 1-800 emergency number, have created a

Spanish web page on our website, and are distributing Spanish-language editions

of the notices employers are required to post, informing workers of their rights. We

are also publishing much of our informational material, such as All About OSHA.

in Spanish and are planning to produce public service announcements in Spanish.

Our outreach to immigrant workers is not limited to Spanish-speaking workers.

Many regions have in place or are developing programs and publications to address

workers speaking other languages. For example, OSHA’s Chicago regional office is

engaged in a major outreach effort to Polish-speaking workers and OSHA’s Region

IX, in the West, maintains an 800 number complaint and technical assistance line

that provides information in Spanish. Korean and Tagalog.

PARTNERSHIPS AND VOLUNTARY PROGRAMS

For OSHA to truly have a beneficial impact in workplaces, we must go beyond

enforcement and standards setting. OSHA-industry partnerships are another valuable means of protecting workers. There are currently 137 active partnerships between OSHA and the private sector that are producing positive results for the Agency’s Strategic Partnership Program. For instance, we have recently established a

partnership with the Hispanic Contractors Association. HCA has agreed to work

with us in identifying and distributing safety and health information in Spanish,

helping us to reach Spanish-speaking employers and employees and improve safety

and health.

We also are forming partnerships around our effort to address musculoskeletal

disorders. Several industry and union groups have agreed to work with us to develop industry-specific guidelines for nursing homes, poultry processing plants and

grocery stores. We have also signed an agreement with the printing and graphic

arts industry to focus on outreach, training and education on best practices in

ergonomics.

In January, OSHA’s Boston Area Office formed a partnership with Local 76 of the

International Association of Bridge, Structural and Ornamental Iron Workers and

the Capco Steel Corporation, which is building a new convention center in that city.

Parts of the agreement that will help protect workers include: a comprehensive safety plan, site-specific training for all workers, daily monitoring by the contractor’s

safety officer, and designation of an employee as labor safety liaison for safety and

health complaints.

Last October, OSHA teamed up with the National Association of Minority Contractors to ensure the safety of workers building the Georgia World Congress Center

Phase IV expansion project. The agreement also calls for Georgia-wide implementation of safety and health programs to address the most common construction-site

hazards.

In Chicago, OSHA signed a regional partnership with an association of telecommunication tower erectors under which all member employers would follow

safebuilding practices such as having a safety and health monitor on-site at all

times, and a safety and health program in place. Tower erectors participating in the

partnership will receive focused inspections and could receive reduced penalties in

appropriate cases.
30

OSHA’s Voluntary Protection Programs (VPP) continue to be a very effective way

of reducing injuries and illnesses. This summer we celebrate the 20th anniversary

of the VPP.

More than 800 companies participate in Federal or State OSHA VPP with injury/

illness rates that are about one-half the average for their industries and safety and

health practices that go beyond OSHA’s requirements for protecting their

workforces. We intend to increase the number of VPP participants by 12 percent

this year and to continue using VPP firms to mentor smaller businesses that need

assistance in identifying and eliminating workplace hazards.

Another voluntary program involving the private sector in reducing workplace

hazards rates is the Safety and Health Achievement Recognition Program (SHARP).

Employers who receive a voluntary on-site consultation visit from a State consultant

program may apply for SHARP. To participate, the employer must agree to abate

any violations found by the consultant and to institute a safety and health program.

In return, OSHA exempts the employer from scheduled inspections for one year. The

SHARP program will grow by about five percent this year.

COMPLIANCE ASSISTANCE, EDUCATION, AND OUTREACH

OSHA is expanding outreach efforts to help employers and employees understand

and comply with its regulations. For instance, following the release of the new recordkeeping regulation, OSHA placed information about the rule on its website,

www.osha.gov, conducted training sessions via satellite, and worked with trade associations and labor groups to enhance awareness of the new rule. By the end of

this year, more than 15,000 people will have viewed the satellite training. which

also is available for download from OSHA’s website. In addition, for workers and

employers who do not have access to the web, more than 25,000 packets of printed

material about the recordkeeping rule have been distributed. Providing small employers with information about recordkeeping also is the initial focus of a new partnership between the Association of Small Business Development Centers and the

Department of Labor.

OSHA’s website has proven to be a valuable outreach mechanism by providing extensive technical links to the Agency’s documents, regulations, and interpretations,

and to electronic interactive tools that help educate employers and employees about

workplace hazards. These tools include free interactive e-CATS and expert advisors

that help employers determine what requirements apply to their workplaces, analyze specific site conditions, and develop appropriate plans for eliminating hazards.

For example, OSHA is developing an evacuation e-tool to help employers comply

with standards that relate to workplace emergencies and evacuation procedures.

The Department, including OSHA, will be working closely with the Small Business

Administration to deploy this tool as part of the President’s Business Compliance

One-Stop initiative. Business Compliance One-Stop is a single point of service web

portal designed to help businesses find, understand, and comply with pertinent laws

and regulations at all levels of government.

OSHA’s field offices provide additional direct assistance to the regulated community. All of OSHA’s 67 local offices now have a compliance assistance specialist who

provides frontline advice, training, education, and outreach to the local community.

The specialists make presentations to employer and worker organizations, respond

to requests for assistance from community and faith-based groups, and alert the

public to other forms of assistance such as State consultation offices.

As part of OSHA’s implementation of the compliance assistance initiatives announced by the Secretary in June before the National Federation of Independent

Businesses, OSHA is, for the first time, establishing an office that will serve as a

dedicated one-stop resource for the small business community. This Office will be

staffed by personnel who have expertise in small business issues and a commitment

to assisting small employers with occupational safety and health matters. More than

94 percent of U.S. establishments employ fewer than 50 workers. It is important

that we reach out to employers who may not have the resources to hire health and

safety experts.

In addition, OSHA works closely with the Small Business Administration’s Office

of Advocacy and the small business community during the rulemaking process, consistent with the Small Business Regulatory Enforcement Fairness Act.

In addressing workplace hazards, OSHA will sometimes use guidelines or Hazard

Information Bulletins when these tools can expeditiously and effectively protect

workers. For example, OSHA recently issued a bulletin on how to prevent exposure

to beryllium in dental labs. It recommends engineering controls, work practices,

training, personal protective equipment, and housekeeping procedures to reduce beryllium exposure.
31

OSHA’s Training Institute, located near Chicago, is regarded as one of the leading

safety and health educational facilities in the world. The Institute trains Federal

and State compliance officers and consultants and, when space is available, offers

training to the private sector. To leverage the facility’s resources and allow thousands of private sector trainees to benefit from the training. OSHA established an

outreach-training program. Individuals who complete a one-week trainer course are

then authorized to teach 10-hour and 30-hour courses in construction and general

industry standards. We have also established an on-line outreach-training program

that is available through colleges funded by OSHA and the Association of General

Contractors. During the past three years, more than 600,000 students have received

training through the outreach program.

OSHA is inaugurating an innovative training grants program that differs from

the program of the past. The new program will provide short-term grants to a

broader range of nonprofit grantees, enabling them to train employees and small

businesses in selected occupational safety and health topics, including homeland security. One of the goals for the new Grants program will be to develop and pilot

test safety and health training materials that will be available on the Internet, allowing a larger audience to benefit from them.

Employers and workers should have no doubt about OSHA’s commitment to enforcing the Occupational Safety and Health Act. At the same time, the regulated

community should know that OSHA will provide them with the knowledge and tools

needed to comply with the law. The vast majority of employers take their responsibility to safeguard their workforce very seriously. Their commitment is reflected

in the reduction in the injury/illness rates and the increased cooperation between

OSHA and the Nation’s employers. For those who neglect this responsibility there

are consequences, as OSHA does not hesitate to use its enforcement authority. However, OSHA’s mission is not only to issue citations. Whenever we enter a workplace,

whether as inspectors or as providers of compliance assistance, it is imperative that

we provide services that will help lead to a safer workplace. Because when OSHA

truly helps employers and their employees, the impact extends beyond the confines

of the workplace to the overall health and welfare of the community. That is the

Secretary’s and my goal, to ensure that OSHA makes a difference where it countsin the lives of every worker in America.

PREPARED STATEMENT OF DAVID D. LAURISKI

Mr. Chairman and Members of the Committee: I am pleased to appear before you

today to discuss the ongoing efforts of the Mine Safety and Health Administration

(MSHA) to promote miners’ safety and health. When I appeared before the full Committee. I talked about my meetings with miners and operators, representatives of

industry and labor organizations, State Grant representatives, and many other

members of the mining community. These are our stakeholders. I wanted to hear

first hand from everyone about their safety and health issues and concerns. Today,

I am able to tell you about the outcome of those meetings and the management plan

we have developed to guide the Agency as we work to improve miners’ safety and

health.

I believe it is vitally important to establish rigorous goals. The President has set

government-wide management goals we are working to accomplish. Secretary Chao

has established a strategic plan for the Department of Labor that sets out four

goals, one of which is to foster quality workplaces that are safe, healthy, and fair.

And I have challenged our own staff and our stakeholders to work together to meet

ambitious, but achievable, goals. Last year, we set meaningful and measurable safety goals to reduce mining industry fatalities and to reduce the non-fatal days lost

injury rate. I am happy to report that, in 2001, the toll of mining deaths in this

country was the lowest ever recorded.

We have also set health goals to reduce coal mine dust and silica samples that

indicate overexposure and to reduce noise levels to below a level which would trigger a citation. And we have set goals for our own internal Agency performance—

to establish MSHA as a model workplace. These goals address MSHA employee injury and illness claims, our injury incidence rate, and our workers’ compensation

costs. I am committed to doing everything we can to meet, or exceed, all of the above

goals.

This year, the number of fatalities and the non-fatal injury rates began to rise

compared to the same time last year. January was especially disappointing and we

knew we had to keep that month’s increase in fatalities from becoming a trend. We

began a ‘‘Focus on Safe Work’’ initiative. We sent hundreds of MSHA personnel out

to all coal and metal and nonmetal mining operations to speak with workers and

supervisors about the fatalities that had occurred. We visited nearly 10,000 mine
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sites and spoke with nearly 150,000 miners, distributing materials and focusing on

the unique hazards at particular mines.

While the mining industry has made significant and laudable progress in reducing

injuries and fatalities in the past century, beginning in the mid-1990’s, there has

been no further significant reduction in fatal accident rates. We had reached a plateau and we needed new ideas and methods to get to the next level in safety and

health. Some have coined this the ‘‘Next Step to Zero.’’ The industry has increased

productivity and improved technology, yet the Agency has not significantly changed

its business strategy since enactment of the Mine Safety and Health Act in 1977.

During my meetings with stakeholders, I heard concern about MSHA’s one-dimensional approach: the Agency has primarily emphasized the enforcement mechanisms

embodied in the Act—focusing on physical conditions in the workplace. The Act,

however, provides us with a broad range of tools, such as education and training—

which includes compliance assistance—and technical support, in addition to enforcement. I believe that these additional tools will lead us to the next level of improved

safety performance.

MSHA staff reached out to hundreds of stakeholders, following my own initial

meetings with them. These stakeholders included mine operators, miners, equipment manufacturers, and others. Following our meetings with stakeholders, we

studied their comments and suggestions. They said they want us to be more

proactive. This is just what the Secretary has asked all of the Department of Labor

to do—to use tools that are preventative rather than reactive.

Based on the input from our stakeholders, we devised a management plan that

will meet the challenges of the 21st Century and help move the mining industry

to a new level of safety and health. The plan focuses on more collaboration with

stakeholders, assistance to the industry in preventing accidents and illnesses, and

improvements in our internal practices to enhance mine safety and health performance. I took this plan back to our stakeholders with the challenge for them to work

with us to get to the next level of safety—to take that next step to zero. And I asked

for their commitment to work collectively to meet the goals I spoke of earlier. To

this, they have all agreed.

ENFORCEMENT

MSHA will continue to enforce the Act and meet its mandate for four inspections

per year at each underground mine and two inspections per year at each surface

mine. I want to emphasize that there will be no less enforcement. Our efforts will

strike a healthy balance between enforcement, education and training, technical

support, and compliance assistance. Enforcement will be more focused on problem

areas. Using mine profiles, our safety, health, and compliance specialists will concentrate on those areas or activities that are more likely to produce accidents that

cause injuries or create health problems. We are improving training for the specialists to increase their capabilities and improve consistency. When they visit mines,

they are becoming more prepared to focus on overall safety and health matters and

identify system weaknesses that may lead to accidents. These weaknesses may be

violations of existing regulations or weaknesses not covered by regulations, either

of which could lead to an injury or illness.

Since we began our compliance assistance efforts last year, some skeptics have

said that we cannot increase compliance assistance without lessening enforcement.

I respectfully disagree. As you can see in this chart, there was an increase in the

number of citations and orders we issued (five and one-third percent, to be exact)

from 2000 to 2001. This increase cannot be attributed solely to a rise in the number

of mines because we know that there was only a one and one-third percent increase

in the number of mines during the same period.

Mr. Chairman, I use this statistic advisedly to show that MSHA is committed to,

and will continue its commitment to, enforcement. But, MSHA’s principal objective

is not to issue citations—it is to reduce fatalities and injuries. We do not believe

that the number of citations issued should become the measure of effectiveness in

achieving our objective.

TRAINING AND EDUCATION

Our safety and health compliance specialists are dedicated to mine safety and

health. They are highly trained professionals. Many have received professional certification in their field and more are working toward certification. We are revamping

our internal training program to strengthen our process, to correct any existing

weaknesses or gaps, and, most importantly, to further support our own staffs health

and safety skill sets.
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Our stakeholders, from the individual miner at the mine to the CEO of a company, have told us that training for the mining industry is crucial to the success

of our program to reduce accidents and illnesses. We are responding to their call

for more user-friendly training materials for mine operators and miners. They also

called for more mine site training where safe practices related to specific problems

can be demonstrated. Our safety and health compliance specialists are now providing such training when they uncover system deficiencies at mines. We are also exploring innovative approaches to delivering training, such as web-based learning,

DVDs, and the use of simulation devices.

Secretary Chao recently announced a major new compliance assistance initiative

to help employers better understand and meet their responsibilities to protect workers. We know that the vast majority of mine operators want to comply but are often

hampered by the volume and complexity of the regulations. If we are to get to the

next level of safety, we have to make mine operators our allies and give them the

help they need, not just to comply with regulations, but to have a broader view of

how to identify and prevent hazards, and the importance of compliance. We need

partnerships where we share abilities and information. For example, we are developing materials on ‘‘Best Practices’’ culled from industry, labor, academia, and

MSHA experience for use at all mines, but most importantly to assist mines with

poor performance or limited resources.

In support of the Administration’s initiative, we in MSHA have developed a Compliance Assistance Plan that sets out the specific steps we are taking to improve

our outreach to mine operators and miners. Compliance assistance can mean different things to different people. We use the term broadly to identify concepts and

accident prevention activities such as education and training, accident and violation

analysis, hazard identification. root cause analysis, technical support, and access to

information. Access to information means the information is readable, easily understood, and written in plain language the reader understands—in other words, ‘‘userfriendly’’. Because we know that there are increasing numbers of Spanish-speaking

workers in the mining industry, we have translated numerous ‘‘best practices’’

cards, student and instructor guides, entire training programs, and handout materials. We will very shortly make available all materials on our web site in Spanish.

Our web site, www.msha.gov, provides access to a multitude of resources for compliance assistance. We have posted a list of the 20 standards most often cited by

major commodity and mining type and are beginning to post best practices information for each of those. On the web site, miners and mine operators can find safety,

tips, accident investigation reports, hazard alerts and bulletins, and ‘‘single source’’

pages. These pages give the user access to all documents and resources related to

a particular standard, especially new ones. It also provides access to MSHA’s Data

Retrieval System which permits miners, operators and other interested parties to

retrieve mine overviews, accident histories, violation histories, MSHA dust sampling

results, operator dust sampling results, and employment/production data. More reports will be added to this system as time progresses.

Compliance assistance is always needed when new regulations are issued. I believe that the assistance should be rendered before the regulation becomes effective

so that everyone is aware of their obligations and knows how to comply. Just last

month we issued a new final rule on hazard communication. It will take effect on

September 23, 2002 for mines with more than five miners. Prior to that date, we

will hold 15 National Roll Out Meetings and about 100 supplemental local meetings

to give each of those mine operators the opportunity to learn how to comply with

the rule. The rule will become effective on March 21, 2003 for mines with five or

fewer miners. We are preparing to provide on-site compliance assistance to those

mines prior to that date.

SMALL MINES

When we set the effective date of the hazard communication rule, we specifically

considered the impact on small mines. Operators of small mines face unique challenges in protecting their workers. In the metal and nonmetal mining industry,

about one-half of all mines employ five or fewer miners. In the coal industry. about

one-fourth employ five or fewer miners. Small mines typically have fewer resources

to devote to safety and health and often lack the expertise to implement accident

prevention programs. Small mines have higher fatality rates. In calendar year 2000,

mines with five or fewer employees had a fatal incidence rate four times greater

than the rate at operations employing 20 or more. To bring small mines to the next

level of safety, we are developing a small mine initiative. We are establishing an

Office of Small Mine Health and Safety in our Directorate of Educational Policy and

Development. The Office will coordinate a national program to assure compliance
34

at small mines and to give compliance assistance. The staff will determine the special needs of small mine operators and assist in development of programs to address

those needs.

REGULATIONS

When developing regulations, we assess the impact of the regulations on all

mines, and on small operators in particular. We are reviewing existing regulations

to determine applicability to current mining practices and to identify those that create undue burden on small mine operators. Let me give you an example of what

I am talking about.

I spoke with a mine operator in the bluestone industry who was the only miner

at his operation located in the back yard of his home. MSHA’s rules require that

each mine have a stretcher to be used to transport injured miners. He asked me

why he had to have a stretcher if there was no one to carry him out on the stretcher. My answer to him was that this was a prime example of a well-intentioned rule

that was not flexible and which needs to be reassessed to allow alternate methods

of complying with the intent of the rule. This is but one example where a one-size

rule does not ‘‘fit all’’.

MSHA has published several important final rules recently. The hazard communication rule, an information and training rule, will reduce injuries and illnesses related to chemicals in the mining industry by increasing miners’ and mine operators’

awareness of chemical hazards. The high-voltage longwall rule allows a mine to use

current technology without the need to petition the Agency for a modification of a

standard. This rule recognizes that advanced technology, already in widespread use

in the mining industry. can be used safely when it meets new requirements for the

design, construction, installation, use and maintenance of high-voltage longwall

equipment and associated cables.

When I appeared before the full Committee, we discussed the Office of the Inspector General’s recommendation that we take regulatory action on asbestos in three

areas. They recommended that we lower the existing permissible exposure limit for

asbestos, change our analytical method to quantify and identify fibers in our asbestos samples, and address take-home contamination from asbestos. Subsequent to

that hearing, we issued an Advance Notice of Proposed Rulemaking in March 2002

requesting information and data from the public to assist us in our deliberations on

these three issues. The last of seven public meetings on this issue was held on June

20. We also solicited written comments and the public comment period just closed

on July 9, 2002. We will use the input obtained at these meetings, as well as the

written comments, to assist us as we move forward in our decision-making process.

We will continue our work on health rules that will control respirable coal mine

dust. These rules would require the mine operator to verify the effectiveness of their

mine ventilation plan to control respirable coal dust under typical mining conditions

and to make adjustments as necessary. We anticipate proposing a rule that would

allow us to accept testing and evaluation of certain mine equipment by independent

laboratories. Our proposed rule on the use of belt entry ventilation for coal mines

recognizes that improved technology, such as new atmospheric monitoring systems,

makes it possible to safely use this type of ventilation system. We are looking carefully at ways we might provide flexibility in our current rules that would encourage

mine operators to increase the number and quality of mine rescue teams. These

teams are critical in life-threatening emergencies underground.

TECHNICAL SUPPORT

While mine operators provide rescue teams, MSHA gives technical assistance to

the operators during mine emergencies. That is just one of the many ways we give

technical assistance. We have on staff experts on ventilation, roof support, electricity, ground stability, structural analysis, impoundment stability. mine fires and

explosions, and chemical exposure. These people are creating partnerships with

other government agencies, equipment manufacturers, mining companies, and trade

and labor organizations to more effectively identify and evaluate technological solutions to mining hazards. We are also identifying new technologies to address emerging hazards.

In conclusion, Mr. Chairman, when I arrived at MSHA I found very competent

staff who care deeply about the safety and health of miners. With this expert resource, we needed to examine our way of business and look for new ways to use

our existing tools to get to the next level of improved safety and health performance.

I have just outlined some of those for you. I am confident that, working with our

stakeholders. we can achieve our goals.
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Mr. Chairman, other members of the Committee, that concludes my prepared remarks. I would be happy to answer any questions.

U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD (CSB) STAFF FINDINGS:

REACTIVE HAZARDS

PRINCIPAL STUDY FINDINGS

1. The limited data analyzed by CSB include 167 serious incidents in the U.S. involving uncontrolled chemical reactivity occurring from 1980 to June 2001. Fortyeight of these incidents resulted in a total of 108 fatalities. The data include an average of six injury-related incidents per year, resulting in an average of five fatalities per year.

2. About 50 of the 167 incidents affected the public.

3. Over 50 percent of the 167 incidents involved chemicals not covered by existing

Occupational Safety and Health Administration (OSHA) or Environmental Protection Agency (EPA) process safety regulations.

4. Approximately 60 percent of the 167 incidents involved chemicals that are either not rated by the National Fire Protection Association (NFPA) or have ‘‘no special hazard’’ (NFPA ‘‘0’’).

5. For the purpose of the OSHA PSM regulation, NFPA instability ratings have

the following limitations with respect to identifying reactive hazards:

They were designed for initial emergency response purposes, not for application

to chemical process safety.

They address inherent instability only, not reactivity with other chemical substances—with the exception of water—or chemical behavior under process conditions.

NFPA Standard 49—on which the OSHA PSM-listed highly reactive chemicals are

based—covers only 325 chemical substances, a small percentage of the chemicals

used in industry.

The ratings were established by a system that relies, in part, on subjective criteria and judgment.

6. Reactive hazards are diverse in nature. Data analyzed by CSB demonstrate this

diversity because the incidents involve:

Over 40 different chemical classes (i.e., acids, bases, monomers, oxidizers, etc.),

with no single or few dominating classes.

Several types of hazardous chemical reactivity, with 36 percent attributed to

chemical incompatibility. 35 percent to runaway reactions, and 10 percent to impactor thermally-sensitive materials.

A diverse range of chemical process equipment-including reaction vessels, storage

tanks, separation equipment, and transfer equipment. Storage and process equipment (excluding chemical reaction vessels) account for over 65 percent of the equipment involved; chemical reaction vessels account for only 25 percent.

7. There is no single or combination of data sources that contains the data needed

to adequately understand root causes and lessons learned from reactive incidents

or for other process safety incidents.

8. Incident data collected by OSHA and EPA provide no functional capability to

track the occurrence of reactive incidents with serious worker or public impacts. Although limited, such data are a valuable resource for analyzing incident trends and

targeting prevention actions at a national level.

9. It is difficult to identify causes and lessons learned in existing sources of process safety incident data because industry associations, government agencies, and

academia generally do not collect this information. It was reported in only 20 percent of the 167 incidents. However, more than 60 percent of reactive incidents, in

which some causal information was available, involved inadequate practices for

identifying hazards or conducting process hazard evaluations; nearly 50 percent involved inadequate procedures for storage, handling, or processing of chemicals.

10. Over 90 percent of the incidents analyzed by CSB involved reactive hazards

that are documented in literature available to the chemical processing industry.

11. Although several computerized tools and literature resources are available to

identify reactive hazards, surveyed companies do not generally use them. In some

cases these tools provide an efficient means to identify certain reactive hazards

without haying to conduct chemical testing.

12. Surveyed companies share material safety data of a general nature with industry for most chemicals and share good handling practices for some. This typically

does not include detailed reactive chemical test data, such as thermal stability data,

which can be valuable in identifying reactive hazards.
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13. Approximately 70 percent of the 167 incidents occurred in the chemical manufacturing industry. Thirty percent involved a variety of industrial activities that

store, handle, or use chemicals in bulk quantities.

14. There is currently only limited guidance available to industry through professional societies or trade associations that addresses the management of reactive

hazards throughout the life cycle of a chemical manufacturing process. There are

significant gaps in guidance available on the following topics:

Unique aspects of reactive hazards during process hazards analysis, such as the

need for reactive chemical test data, and methods to identify and evaluate worst

case scenarios involving uncontrolled reactivity.

Integration of reactive hazard information into process safety information, operating procedures, training, and communication practices.

Review of the impact on reactive hazards due to proposed changes to the process.

Concise guidance targeted at companies engaged primarily in the bulk storage,

handling, and use of chemicals to prevent the inadvertent mixing of incompatible

substances.

GENERAL CONCLUSIONS

1. Reactive incidents are a significant problem in the context of chemical process

safety as evidenced by the number and severity, of incidents.

2. The OSHA PSM standard has significant gaps in coverage of reactive hazards

because coverage is based on a limited list of individual chemicals with inherently

reactive properties.

3. NFPA instability ratings are inappropriate as the sole basis for determining

coverage of reactive hazards in the OSHA PSM standard because of the significant

limitations of the system with respect to identifying important reactive hazards.

4. There are significant gaps in coverage of reactive hazards in. EPA’s Chemical

Accident Prevention Requirements (40 CFR 68) because EPA has not identified a

technical basis for determining what reactive hazards should be covered by the rule.

5. Because of the diverse nature of reactive hazards, improving reactive chemical

process safety management requires regulators and industry to address the hazards

resulting from combinations of chemicals and process-specific conditions rather than

focus exclusively on the inherent properties of individual chemicals.

6. Given the diversity of the reactive hazards, the prevention of reactive incidents

can only be accomplished through enhanced regulatory and non-regulatory programs.

7. Existing knowledge of reactive hazards is not being utilized to its fullest extent.

There is no mechanism to effectively share reactive chemical test data and lessons

learned from previous reactive incidents throughout industry; some of this knowledge is contained in generally available resources for identifying reactive hazards,

but it is not widely used.

8. Reactive incidents are not unique to the chemical manufacturing industry. They

also occur in many other industries where chemicals are stored, handled, or used.

9. Current good practice guidelines for chemical manufacturers and users are neither complete nor explicit on how to effectively manage reactive hazards throughout

the life cycle of a chemical manufacturing process.

STUDY BACKGROUND

The capability of chemical substances to undergo reactions, or transformations in

their structure, is central to the chemical processing industry. Chemical reactions

allow for a diversity of manufactured products; however, chemical reactivity can

lead to significant hazards if not properly understood and controlled. Reactivity is

not necessarily an intrinsic property of a chemical substance. The hazards associated with reactivity are critically related to process-specific factors, such as operating temperatures, pressures, quantities handled, chemical concentrations and the

presence of other substances, or impurities with catalytic effects.

Safely conducting chemical reactions is a core competency of the chemical manufacturing industry. However, chemical reactions can rapidly release large quantities

of heat, energy, and gaseous byproducts. Uncontrolled reactions have led to serious

explosions, fires, and toxic emissions.

Incidents involving uncontrolled chemical reactions occur throughout industry.

The impacts may be severe in terms of harm to people, damage to physical property,

and impact on the environment. Recent incidents across the United States underscore the necessity of carefully managing reactive chemical process safety.

A variety of legal requirements and regulations govern reactive chemical process

safety. These include regulations from the Occupational Safety and Health Administration (OSHA) and the U.S. Environmental Protection Agency (EPA).
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OSHA develops and enforces standards to protect employees from workplace hazards. In the Clean Air Act Amendments (CAAA) of 1990, Congress required OSHA

to promulgate a standard to protect employees from hazards associated with releases of highly hazardous chemicals, including reactive chemicals. In 1992, OSHA

promulgated its Process Safety Management (PSM) standard in response to this requirement. The standard covers processes containing individually listed chemicals

that present a range of hazards, including reactivity, as well as a class of flammable

chemicals. Reactive chemicals were selected from a list of chemicals rated by the

National Fire Protection Association (NFPA) because of their instability rating of ‘‘3’’

or ‘‘4’’ (on a scale of 0 to 4).

EPA was required by the CAAA to develop regulations to prevent the accidental

release of substances that could have serious effects to the public or the environment. In 1996 EPA promulgated its Accidental Release Prevention Requirements in

response to the congressional mandate, and the requirements are similar to those

of those PSM standard. For the purposes of this regulation. EPA identified covered

substances based toxicity and flammability, but not on chemical reactivity.

Several voluntary industry initiatives have been undertaken to provide guidance

on chemical process safety, including reactive hazards. These include industry consensus standards such as those from NFPA; and good practice guidelines from the

Center for Chemical Process Safety (CCPS), the American Chemistry Council (ACC),

the Synthetic Organic Chemical Manufacturers Association (SOCMA), and the National Association of Chemical Distributors (NACD). CCPS is an organization sponsored by manufacturers, government, and academia that has produced recognized

industry guidance since 1985 in the area of process safety technology and management. ACC and SOCMA are chemical industry associations; each having programs

to promote good practices among their member companies in the area of chemical

process safety. Similarly, NACD is an association of chemical distributor companies

which promotes a good distribution practices and dissemination of information to

end-use customers on the proper handling of chemical products.

This investigation by the U.S. Chemical Safety and Hazard Investigation Board

(CSB) examines chemical process safety in the United States—specifically, hazardous chemical reactivity. The objectives of this hazard investigation are to:

Evaluate the impacts of reactive incidents.

Examine how OSHA, and EPA authorities and regulations currently address reactive hazards. Within this context, analyze the appropriateness of and consider alternatives to reliance on the NFPA instability rating system to define reactive substances covered under OSHA process safety management regulations.

Examine how industry and other private sector organizations effectively address

reactive hazards through non-regulatory standards and guidance.

Determine the differences, if any, between large/medium/small companies with regard to their policies, practices, in-house research, testing, and process engineering

related to the prevention of uncontrolled chemical reactions.

Develop recommendations for reducing the number and severity of reactive incidents.

CSB completed the following tasks to accomplish the hazard investigation objectives:

Analyzed reactive incidents by collecting and reviewing available data.

Surveyed current reactive hazard management practices in industry.

Visited companies to observe reactive hazard management practices.

Analyzed regulatory coverage of reactive hazards.

Met with stakeholders to discuss the problem and approaches to improve reactive

chemical process safety.

The data analysis included evaluating the number, impact, profile, and causes of

reactive incidents. Since there is no comprehensive repository of chemical incident

data, CSB examined more than 40 data sources (e.g., industry and governmental

databases and guidance documents: safety/loss prevention texts and journals; and

industry association, professional society, insurance, and academic newsletters). The

search criteria for the CSB data collection focused on incidents where the primary

cause was related to chemical reactivity. For the purposes of this investigation, an

incident is defined as a sudden event involving an uncontrolled chemical reaction—

with significant increases in temperature, pressure, and/or gas evolution—that has

caused or has the potential to cause serious harm to people, property, or the environment.

Through site visits and a survey of select small, medium, and large companies,

information was gathered about good practices for reactive hazard management

within the chemical industry. CSB conducted site visits at industry facilities that

have implemented programs for managing reactive hazards.
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RESPONSE TO QUESTIONS OF SENATOR WELLSTONE FROM JOHN L. HENSHAW

QUESTIONS ON RECORDKEEPING

1. According to OSHA’s own estimates, the recently announced change in criteria

for reporting work-related hearing loss, from a 10-decibel loss to a 25-decibel loss,

could have a profound impact on worker protection and preventing occupational

hearing loss. In particular, OSHA has estimated that the original 10-decibel criteria

would have resulted in 275,000 cases of hearing loss being recorded annually. The

agency estimates that the weaker criteria issues earlier this month will result in

145,000 cases being recorded. That means that 130,000 cases of hearing loss will

not be recorded. Cases will only be recorded when workers have reached the point

of impairment. There will, therefore, be no ability to use the injury log as a way

of identifying jobs where there are problems and intervene before workers suffer severe and significant damage. Since you have repeatedly said your interest as a safety and health professional is in preventing work-related fatalities, injuries, and illnesses, how do such reporting criteria contribute to prevention?

OSHA’s new hearing loss recording criteria involve a two-part test. First, the employee’s hearing test must show a 10-decibel loss compared to baseline audiogram

(the hearing test given to employees when they are placed in a hearing conservation

program). This is the same criterion used in the 2001 rule. The change is that the

new criteria also require the audiogram to show a 25-decibel hearing level relative

to audiometric zero (the reference point used for hearing tests). According to most

health care professionals, such as the American Medical Association, the American

Academy of Family Physicians, the American Academy of Audiology, and the World

Health Organization, a hearing level between audiometric zero and 25 decibels is

considered normal hearing-the employee experiences no or very slight hearing problems. By excluding the cases that fall within audiometric zero and 25 decibels the

recordkeeping regulation assures that all recorded cases fall outside the normal

hearing range and represent the type of occupational illness intended to be captured

by the occupational injury and illness recording and reporting system.

The purpose of the 29 CFR Part 1904 occupational injury and illness recordkeeping regulation is to require employers to keep records of serious, significant,

and disabling work-related injuries and illnesses per Section 8(c) of the OSH Act.

The regulation does not collect other types of data, including information on near

misses, minor injuries or illnesses, or accidents resulting only in property damage.

To the extent that employers and employees analyze these injury and illness data

to avoid future injuries and illnesses, it has protective value. OSHA encourages employers to use the data for this purpose, even though it is not required by regulation.

The Part 1904 regulation is not intended to act as a workplace standard that provides direct protection to workers. That is the purpose of OSHA’s safety and health

standards, such as the general industry 29 CFR Part 1910 standards. For the purpose of preventing hearing loss to general industry workers, the §1910.95 Occupational Noise Exposure standard requires employers to protect workers from exposure to excessive noise levels. The noise standard requires employers to establish

a hearing conservation program for all employees exposed in an 8-hour time-weighted average sound level of 85 decibels or more. This program includes audiometric

testing and mandatory hearing protection requirements for employees who experience a 10-decibel loss in hearing.

2. Now that the new recordkeeping standard is in place, I have questions about

whether OSHA will be enforcing and citing employers for failure to record injuries

and illnesses in past years under the old recordkeeping standard. My understanding

is that it has been OSHA’s practice during inspections to look at injury logs going

back several years, and to cite employers if violations are found on those logs. Will

OSHA continue to cite employers for recordkeeping violations on the log 200 for previous years (2001, 2000, 1999) under the previous recordkeeping standard? If not,

why not?

Several factors make it difficult for OSHA to issue citations for recordkeeping violations related to the 200 log. Section 9(c) of the OSH Act requires that a citation

be issued within six months of the occurrence of the violation. Thus, OSHA can no

longer issue citations under the old recordkeeping rule, which was withdrawn effective January 1, 2002. In addition, during the development of the new recordkeeping

regulation, OSHA decided that it would be too burdensome and confusing for employers to update the 200 log data using the old rules, while also trying to learn

the new recordkeeping rules. Therefore, §1904.44 of the new regulation specifically

states that employers are not been required to update their old records.
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This regulatory policy, in combination with the OSH Act’s Section 9(c) prohibition

on issuing any citation after six months following the occurrence of the violation,

makes it difficult to routinely issue citations for the old records. However, the agency will continue to consider citations for situations, involving egregious circumstances on a case-by-case-basis.

RESPONSE TO QUESTIONS OF SENATOR MURRAY FROM DAVID LAURISKI

QUESTIONS ON PROCESS SAFETY MANAGEMENT OF HIGHLY HAZARDOUS CHEMICALS

1. Who at OSHA or within the Department of Labor was involved in the decision

to withdraw the PSM rulemaking?

As Assistant Secretary, I made the decision to withdraw PSM from the Regulatory

Agenda. OSHA had included the possibility of addressing this issue on the Regulatory Agenda for several years, but little progress had been made. As you know,

we removed a number of items from the Regulatory Agenda to focus our activities

and to make it more likely that we can meet the dates we project. This item was

one of the ones we removed due to resource constraints and other priorities. This

particular issue is still evolving, and the Chemical Safety Board (CSB) is continuing

its work on a report. We are monitoring the situation to determine whether further

regulatory action is needed, as well as examining the possibility of issuing non-regulatory guidance to address the issue more quickly than a rulemaking could. Its removal from the Agenda is not an indication that we don’t think it is an important

issue, nor does it mean no work will be done regarding it.

2. What communications did any of these individuals have with representatives

or staff of the Chemical Safety Board prior to the decision to withdraw the rulemaking?

I had no specific communication with the Chemical Safety Board regarding my

decision to withdraw this item from the Regulatory Agenda. As will be indicated

below in response to other questions, OSHA staff has engaged in discussions of the

issue with CSB staff on other aspects of this issue, as well as provided information

to CSB. I decided to withdraw the rulemaking after thoroughly considering where

OSHA should focus its resources, and what could realistically be accomplished within the state time frame. As noted above, we consider this an important issue, and

continue to be involved and to monitor developments. Furthermore, rulemaking is

not the only means available to address issues such as these, nor is it often the

quickest means to remedy an issue. We are also considering the development of

guidance for the chemical industry to help prevent further incidents involving reactive chemicals.

3. In particular was anyone at OSHA or at the Department of Labor aware of the

information in the possession of the Chemical Safety Board that led to the attached

Chemical Safety Board staff findings?

The CSB shared data and information with OSHA and EPA during this project,

and it is likely that some of that data and information are included in the findings.

Additionally, for more than two years, OSHA and EPA have maintained a working

relationship with the CSB, and have provided input to the study at the staff level.

If so, was this information considered during the decision-making on withdrawing

the rulemaking?

I considered a number of factors when making decisions about what items should

remain on the regulatory agenda. However, the primary concerns involved resources, priorities for the Agency and for the Department, and the likelihood of action being concluded within the time frame covered by the regulatory agenda.

5. Did you or anyone at OSHA or the Department of Labor ever direct an analysis

of OSHA’s own enforcement data to confirm the existence of incidents such as those

referred to in the Chemical Safety Board staff’s findings?

OSHA has not conducted a comprehensive study of any of its internal data to determine the extent and nature of reactive chemical incidents. However, at the request of CSB, OSHA did direct an analysis of its enforcement data to obtain background information on 12 specific reactive incidents in which OSHA responded and

conducted an inspection. Additionally, our Office of Regulatory Analysis conducted

a preliminary study with respect to reactive chemicals OSHA identified from the

National Fire Protection Association’s (NFPA) document entitled ‘‘Hazardous

Chemicals Data’’ which ranks chemicals according to NFPA’s ‘‘Standard System for

the Identification of the Fire Hazards of Materials.’’ That report was provided to the

Chemical Safety Board.
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RESPONSE TO QUESTIONS OF SENATOR MURRAY FROM JOHN L. HENSHAW

1. When you testified before the full HELP Committee during the hearing on asbestos and workplace safety that I chaired almost a year ago, Senator Baucus invited you out to Libby to see the devastation that community has experienced. Can

you please share your impressions from your visit?

I was able to travel to Libby, Montana, October 4, 2001. Touring the area where

mining occurred and touring the surrounding area and town left many powerful impressions about how the unknowing widespread exposure to asbestos found in the

products of the mining operation affected the town and its people. I left the area

strongly believing that all possible actions should be taken to protect the health of

the citizens of Libby, and, most of all, that public policy makers should be diligent

about not letting anything similar happen again.

2. Can you please update the Committee on OSHA’s most recent activities related

to Libby, recognizing, of course, that EPA is the lead agency in the cleanup effort?

OSHA continues to work cooperatively with MSHA and other Federal agencies,

including the Environmental Protection Agency (EPA) and the National Institute for

Occupational Safety and Health (NIOSH). We have provided an Agency representative to EPA’s Interagency Taskforce on Asbestos Contamination in Libby, Montana

and have enlisted NIOSH in a request for technical assistance to determine asbestos-exposure levels at worksites from the mining products of other vermiculite

mines.

OSHA’s prevailing concern, at this time, regarding the Libby, Montana clean-up

activities is to ensure that employees conducting this work are appropriately protected. Employee protection has been and will continue to be regulated under the

OSHA’s Hazardous Waste Operations and Emergency Response standard (29 CFR

1910.120). This standard requires a written safety and health program, employee

training, protective work clothing and equipment, including the use of respirators,

employee exposure monitoring, medical surveillance, and other provisions to ensure

employee safety. OSHA personnel have visited the site and reviewed the written

program for clean-up activities at Libby.

In order to determine whether vermiculite from mines other than Libby presents

an asbestos-exposure hazard to workers who are using or handling products that

contain vermiculite, OSHA has requested assistance from NIOSH. In response,

NIOSH has conducted investigations in horticultural facilities and exfoliation plants

to determine the extent of asbestos exposure in these settings. NIOSH is analyzing

asbestos exposure levels from four sources (vermiculite from South Africa, two

mines in South Carolina, and one mine in Virginia) and is nearing completion of

this work. Surveys of the horticultural facilities have been completed and the reports are under review. Six exfoliation plants have been investigated; two additional

investigations are planned. To date, numerous samples have been analyzed by

standard methods (Phase Contrast Microscopy) and by Transmission Electron Microscopy (TEM). TEM will detect asbestos fibers at the lowest concentrations. OSHA

is in contact with NIOSH regarding these investigations and awaits the final reports.

3. Do you believe that passage of the Ban Asbestos in America Act of 2002 would

result in improved protections for workers from exposure to harmful levels of asbestos?

I have not had an opportunity to review the legislation for its impact on occupational safety and health policy, and the Administration has not produced a Statement of Administration Policy (SAP) on the legislation at this time. Nonetheless,

OSHA inspectors are diligent about checking for the presence of asbestos in all inspections of workplaces.

I remain very concerned that mechanics across the country, as well as consumers

who work on their cars, are being exposed to harmful levels of asbestos from friction

products. The Seattle-Post Intelligencer found concentrations of asbestos ranging

from 2.3 percent to 63.8 percent in dust samples it collected at gas stations throughout the nations. I understand there are regulations in place to protect mechanics

from asbestos in brakes, but what—if anything—is OSHA doing to make sure these

regulations are being followed?

OSHA regulates asbestos exposures to mechanics under the General Industry

Standard, (29 CFR 1910.1001). This standard requires employers ensure that employee exposures do not exceed 0.1 fibers/cubic centimeter of air (f/cc) as an eighthour, time-weighted average (TWA). Under the General Industry Standard for asbestos, OSHA has set mandatory Work Practices and Engineering Controls for Automotive Brake and Clutch Inspection, Disassembly, Repair and Assembly. These requirements apply whenever brake work is done, regardless of exposure levels. When

these mandatory work practices and engineering controls are followed, OSHA esti-
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mates that the employee’s average asbestos exposure will be 0.003 fibers/cubic centimeter. OSHA conducts inspections in response to complaints (from employees) or referrals. Referrals may come from sources such as State public health personnel, law

enforcement, or the news media. Additionally, OSHA targets establishments for inspection through the site specific targeting program, National Emphasis Programs

and Local Emphasis Programs. These programs do not specifically focus on asbestos;

however, in any inspection where asbestos is identified as a potential exposure, this

exposure would be investigated and evaluated.

Is OSHA doing any outreach to these small businesses to help them with compliance?

As part of its ongoing outreach service OSHA contracts with states to provide onsite hazard detection and prevention services by qualified state consultants. Called

the OSHA Consultation Program, there are programs in each state to provide small

high hazards employers with free and confidential assistance in the correction of

workplace hazards, including asbestos. At the employer’s request, these consultants

conduct a thorough review of the workplace to identify hazards and make cost effective recommendations for their correction or elimination. Should employee training

be necessary, the consultant may also provide it at the employer’s place of business.

In addition, these consultants will work with employers to develop a workplace safety and health management system to prevent hazards from re-occurring. Finally,

Secretary Chao announced that OSHA is creating an office dedicated to small business that will serve as one-stop shopping for small-business owners. This will be the

first time that small-business concerns will become a permanent fixture in OSHA.

6. How many site inspections has OSHA conducted in the past year to ensure

OSHA’s regulations are being followed?

Froze October 1, 2001 to June 30, 2002, Federal OSHA has conducted 26,349 inspections and the States have conducted 40,229 inspections.

RESPONSE TO QUESTIONS OF SENATOR ENZI FROM DAVID LAURISKI

1. Your testimony indicated working conditions in the country are improving. The

rate of worker injuries is now at its lowest levels since records have been kept. I

believe we have a great success story here. How much credit should we give to

OSHA for that success?

OSHA, in showing the value safety and health add to the workplace, has served

as a catalyst for employers and workers, who also deserve credit for the dramatic

reductions in the last ten years. I believe there has been a culture shift in this country, and most employers now acknowledge safety and health as a corporate value.

OSHA has contributed to this shift by providing assistance and support, and where

needed, strong enforcement. We have good examples of ‘‘turnaround’’ companies

which, after an enforcement visit, made substantial improvements in their safety

records. But I am not satisfied with our progress. There are still far too many workplace fatalities, and injuries and illnesses. I believe that by implementing the Secretary’s and my priorities for the Department, we will continue to improve workplace conditions for all our employees.

2. I’ve heard that OSHA’s compliance officers don’t understand the industries they

are inspecting. Sometimes, the inspector has never even set foot in any plant in that

particular industry until he shows up for an inspection. What are you doing to improve the level of competency among your inspector staff?

Many OSHA employees, including a number of front-line inspectors, are board

certified by various accreditation bodies and other, non-certified, inspectors have expressed a strong desire to attain certification. One of my goals is to increase the

number of certified inspectors, so that OSHA’s credibility in the industrial community is recognized. The Agency plans to help inspectors obtain their credentials by

providing extra training and paying for the cost of the testing process, consistent

with new authorities given us by Congress in Public Law 107-107, the National Defense Authorization Act for Fiscal Year 2002. I also have a task force exploring various other approaches. In addition, we plan to hire more staff with private-sector

experience, and are considering having OSHA inspectors intern with companies so

that they gain first-hand experience in the type of facilities they will inspect.

3. I’ve always been concerned about the impact of regulatory agencies on small

businesses. Is your agency doing anything to ease the burden on small business?

Do you give a small business any break when you conduct enforcement visits?

Do they have to comply with the same regulations as a big company? Doesn’t this

put them at a competitive disadvantage?

OSHA offers many resources designed specifically for smaller employers and carefully considers any potential regulatory burden on small businesses from its actions.

For instance, under the new recordkeeping rule, which became effective January 1,
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2002, businesses with ten or fewer employees are exempt from the requirements of

the rule. To provide further assistance to small businesses, I’ve also recently hired

a Special Assistant for Small Business, who comes from the small-business sector

and who will serve as a liaison to small businesses. In addition, we have created

a new position, Compliance Assistance Specialist, and placed one in each of our 67

Area Offices. These specialists will meet with employers and employees to help

them understand OSHA’s regulations and to encourage safe and healthy workplaces. Under our proposed restructuring, we are creating a Directorate on Cooperative and State Programs, which will provide businesses with compliance assistance.

The Agency is also in the process of putting together a new compliance assistance

plan, which will be designed to help all businesses, but particularly those in the

small business sector. Our Consultation Program is designed to provide free, on-site

assistance to small firms. Finally, the Occupational Safety and Health Act does

allow the Agency to give significant penalty reductions to small firms cited by OSHA

and our Directives to the field inspectors require that the reductions be applied. The

amount of the reduction depends on the gravity of the violation, the size of the business, the history of any serious violations, and the good faith of the employer.

4. Business leaders tell me they want to comply with OSHA standards, but they

are too complex and technical for them to understand. What’s being done to eliminate this confusion?

That’s why compliance assistance is so important. The 67 Compliance Assistance

Specialists in our field offices are helping employers understand the rules. Another

program, the free on-site consultation program, which is available in all 50 states,

provides additional assistance. Our partnership and alliance programs are also

structured to maximize compliance assistance efforts, such as distribution and delivery of training materials and sharing of ‘‘best practices’’ on how to reduce exposure

to workplace hazards. We currently have 137 of these partnerships with individual

employers and trade associations. The Agency provides other outreach such as

SBREFA compliance guides, electronic advisors, and interpretation letters, which

respond to employer questions about how specific requirements apply under various

circumstances. Finally, as resources permit, we are beginning to rewrite the regulations in simple-to-understand language. The OSHA Means of Egress rule has been

rewritten in simpler language and will be published as a final rule later this year.

It will, for example, be called Exit Routes instead of Means of Egress.

5. What role does OSHA play in homeland security? It would seem that workplaces like chemical and nuclear plants would be possible targets for future attacks.

Couldn’t OSHA help those plants improve their security?

Our roles in the World Trade Center recovery and cleanup operations and in response to anthrax sent through the mail are good examples of the role OSHA can

play. Soon after the anthrax scare, we published a matrix of the types of controls

that are needed, and made the material widely available through our website and

through other sources. OSHA is also working with the Office of Homeland Security’s

Chemical Security Issues Working Group, which is an interagency task force, with

the following members: OSHA, EPA, DOE, DOT, DOJ and OMB. The task force has

been meeting since the middle of May, to coordinate efforts on chemical site security

programs.

6. Explain to me how OSHA selects sites for enforcement action. I’ve heard complaints about overzealous inspectors who are ‘‘out to get’’ specific employers. Do you

just randomly pick workplaces to visit, or do you have some targeting process in

place?

OSHA has established a set of priorities for selecting workplaces for inspection,

as described in the Agency’s Field Inspection Reference Manual. OSHA’s first priority is to investigate all work-related fatalities. Next, we investigate all valid employee complaints, many of them through our phone/fax process. OSHA is required

by law to ensure that companies selected for general schedule inspections are selected by an administrative plan based on neutral criteria. We ‘‘target’’ our remaining enforcement activity by our Site Specific Targeting (SST) system, which uses the

firm’s injury and illness rate, and with Local and National Emphasis Programs.

Firms in industries that have an injury and illness rate at least twice the national

average are first notified they are on a targeted list, and then are selected for inspection on a random basis. All our field offices use this targeting system and do

not indiscriminately select companies for enforcement action.

7. I’ve always thought that besides conducting inspections, the government ought

to find ways to help employers come into compliance with your regulations. What

assistance does OSHA offer businesses so they can help themselves correct workplace problems?

The Secretary recently announced a major compliance assistance initiative. As

part of that initiative, the Secretary has created a new, permanent, senior position,
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dedicated to coordinating the Department’s compliance assistance activities, and ensuring that all of the Department’s agencies are doing everything needed to help

employers comply with the law. The second level of this sweeping change is taking

place, in detail, at the agency level. For example, OSHA is creating an office dedicated to small business that will provide one-stop shopping for small-business owners. This will be the first time that small-business concerns will become a permanent fixture in OSHA and its staff will be expert in small business issues and committed to helping small employers with occupational safety and health issues. This

staff will function absolutely separate from inspection officers. Finally, OSHA continues to offer free on-site consultation programs in all 50 states. This program,

funded at $51 million in FY2002, gives priority to firms with fewer than 250 employees. Last year, the program provided on-site assistance to more than 27,000

worksites.

8. You continue to mention partnerships as a means of getting employers to address safety and health problems in their workplaces. Do you have any evidence

that these partnerships are actually improving conditions?

OSHA has numerous examples of partnerships that have not only reduced injuries and illnesses but have saved employers money. y For example, in Cincinnati,

OSHA formed a cooperative partnership with the contractors who constructed Paul

Brown Stadium for the Cincinnati Bengals. The partnership focused on fall protection, one of the leading causes of fatalities in construction. It was designed to increase employee involvement and establish joint labor and management oversight

of conditions at the job site. The partnership produced results as the lost workday

injury and illness rate for the site (Dec 2000) was 0.95 per 100 workers compared

to a national rate of 4 per 100 for the construction industry. Another partnership

that produced positive results was with Pinion Management, a Colorado-based manager of seven nursing homes. At Pinion’s homes, workers compensation claims

dropped from 115 in 1999 to five by early 2001. Associated costs to the company

were reduced from $232,000 to $1,500—a 99 percent reduction-in the first quarter

of 2001. These results mean a lot less pain and suffering for workers and their families as well as reduced costs for employers. OSHA has numerous other examples of

successful partnerships.

9. I was quite impressed with OSHA’s role during the cleanup activities at the

World Trade Center. Your staff needs to be congratulated on doing a great job without conducting any enforcement actions. What was the budgetary impact of your extensive efforts at this site? Will it affect your ability to meet your other goals?

OSHA is continuing to fulfill its mission of protecting the safety and health of the

nations workforce. In FY 2001 and FY 2002, OSHA received a total of $1.5 million

of emergency supplemental funding. As of June 2002, the agency had obligated approximately $5.7 million toward World Trade Center Emergency Assistance. This included funds to cover the work of over 600 Federal OSHA staff that had, at various

times, been onsite to provide guidance and assistance. The work at the WTC complex required some shifting of resources, and required great flexibility and dedication among staff-both those responding and reacting to the emergency and aftermath and those who remained at their work stations to cover for those who went

to the WTC site. Although it would be difficult to replicate the shifting of personnel

and resources under similar fiscal and workload conditions without disruption of

Agency work-the agency continued to provide effective enforcement, outreach, assistance and training while the site clean-up was completed.
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[Whereupon, at 11:22 a.m., the subcommittee was adjourned.]

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