Presented ToWashington State Plan Employees
Remarks broadcast by
Dr. David Michaels
Assistant Secretary of Labor
for Occupational Safety and Health
State of Washington Department of Labor and Industries
Division of Occupational Safety and Health (DOSH)
State Plan Safety and Health Symposium
Tuesday, November 16, 2010
I am very pleased to join you for your state plan symposium. Thanks to Judy Schurke and Michael Silverstein for inviting me, and for their leadership.
Thanks as well to the DOSH staff for their commitment to worker safety. I am sorry I could not be there with you in person, but it is still very good to see all of you here today.
DOSH, as one of the 27 OSHA-approved State Plans (22 covering the private sector) is an integral part of the national OSHA effort. DOSH effectively delivers its program by balancing strong enforcement with outreach, education and cooperative programs.
I admire your record for pursuing standards that exceed federal OSHA, and I appreciate the good working relationship between federal and state OSHA officials and staffs -- at the local, regional and national levels.
I want to recognize OSHA's Acting Administrator for Region X, Dean Ikeda. Dean is ably filling Dick Terrill's shoes -- a big job after Dick's many years representing the Agency in Region X.
OSHA: Back to Basics
The last year and a half has been very busy for both Federal OSHA and its state plan partners -- and not only due to our special enhanced review of all the state plan programs this year.
Let's step back to January 2009 to see how our present situation came about...
When the new administration came aboard in the Department of Labor last year, we recognized that more than 5,000 men and women in America were getting killed on the job every year and tens of thousands more injured and exposed at work to potentially long-term health hazards.
To make a greater impact on our workplaces, significant changes had to be made in OSHA. The Department of Labor and OSHA have made it clear over the last year that OSHA has returned to the original intent of the OSH Act that created the agency nearly 40 years ago.
In a move "back to basics," we are focused on establishing up-to-date workplace safety and health regulations based on strong science, and emphasizing fair enforcement of standards. OSHA is first and foremost a public health agency with a mission to protect workers from death, injury and illness, and now we are acting like it.
For example: The long-awaited standard for cranes and derricks in construction goes into effect this month. I know this is meaningful to you because DOSH reacted to several tower crane incidents in 2006 by adopting extensive construction crane standards that go beyond the new federal crane standard, and by adding 6 new crane inspector positions in FY 2010.
Federal OSHA is moving forward on rescinding exemptions to the fall protection policy for residential construction. OSHSPA asked for this rescission, and we have the support of ACCOSH and the National Association of Home Builders.
And -- we are working with the Department of Transportation on a campaign to discourage texting while driving and other on-the-road distractions. President Obama issued an Executive Order forbidding texting by Federal employees on government assignment. I understand that Washington has made both texting and hand-held cell phone use illegal as a primary offense for all drivers. I welcome your participation in this campaign and I encourage you to coordinate your efforts with our Regional Office.
Under this administration, we are underscoring the message that employers are responsible for the safety and health of their workers. The U.S. Department of Labor's overall strategy to place the burden of responsibility where it belongs -- on employers -- can be summarized as "Plan, Prevent and Protect."
When employers fail to live up to their legal obligation to protect their workers, OSHA must use all its powers of enforcement to see that they do.
In the past year, OSHA has stepped up its enforcement actions to deliver an effective deterrent, convincing employers to abate hazards before workers get hurt.
In Fiscal Year 2010, federal OSHA conducted nearly 41,000 inspections, including about 6,600 health inspections -- surpassing the goal we set for ourselves at the beginning of the year. This is a remarkable achievement because we diverted significant enforcement resources for half of FY 2010 to ensure the protection of workers engaged in the Gulf Coast cleanup operations.
The State Plans conducted an additional 57,000 safety inspections, including 12,000 health inspections. This was less than in FY 2009 but nevertheless impressive considering everyone's budget constraints in this economy.
During the last fiscal year, we issued more egregious and significant cases than at any time in the last decade -- including $81 million issued against BP as a result of our follow up to the Texas City catastrophe, and the $16 million case against Kleen Energy in Connecticut after 50 workers were injured and 6 were killed in a blast that never should have happened.
The BP Texas City citation was the largest in OSHA's history, surpassing the previous largest penalty -- the original citation against BP after the 2005 explosion that killed 15 workers.
Washington State has been busy as well. Last month, you cited Tesoro for almost $2.4 million -- the largest citation in your state's history -- for the explosion that killed 7 workers in April. This was a preventable tragedy, and I commend you for the hard work it took to pursue this case.
A disturbing trail of tragedies in petroleum and chemical plants prompted a strong Federal OSHA response last year and this summer. We launched two National Emphasis Programs -- for oil refineries and highly hazardous chemicals -- to verify that employers' written Process Safety Management programs match their actions.
Sadly, our inspectors have found many facilities where safety programs that look good on paper don't follow through in practice.
Three weeks ago my deputy, Jordan Barab, spoke to employers at a symposium at Texas A&M University about what we have learned from our PSM inspections. He reminded them that since the BP Texas City explosion in 2005, OSHA has counted more than 20 serious incidents in refineries across the country.
In case after case, disaster after disaster, our investigations point to process safety-related problems and, most likely, systemic safety and health problems -- not just in one company but in entire industries.
Given the ample number of opportunities to learn from catastrophes in this industry and the recognized potential for injuries and deaths from well-known hazards, our finding the same problems in plant after plant is disturbing -- so now we are developing a strategy to extend our presence in refineries.
Last year DOSH said it would implement OSHA's Chemical Facilities NEP; and to do so, the state needed to boost the number of compliance officers trained in PSM. DOSH Deputy Assistant Director Anne Soiza took the initiative to contact our Region X office for assistance. By working together, we have arranged for our OSHA Training Institute to deliver PSM training in Washington in early December.
I am sure this effort will go a long way toward saving lives through a combination of strong, fair enforcement and compliance assistance.
Federal OSHA is stepping up enforcement in other ways...
In June the Agency launched the Severe Violators Enforcement Program. This new program is designed as a special, supplemental enforcement tool to address recalcitrant employers who fail to meet their obligations under the OSH Act.
The Severe Violators Enforcement Program features more mandatory inspections of an identified company, more mandatory follow-up inspections, and a more intense examination of an employer's history to assess if there are systemic problems that would trigger additional inspections.
And last month, OSHA's new penalty policy went into effect. While our maximum penalties are still set by law at a very low level, we can control how and when we allow reductions in our penalties. Our new administrative changes will reduce the level of reductions to send a stronger message to employers that cutting corners on worker safety and health is unacceptable.
In 2001 at a Delaware oil refinery, a tank of sulfuric acid exploded, killing a worker named Jeff Davis. His body literally dissolved in the acid. The OSHA penalty was only $175,000. Yet, in the same incident, thousands of dead fish and crabs were discovered, allowing an EPA Clean Water Act citation of $10 million.
How can we tell Jeff Davis' wife and his five children that the penalty for killing fish and crabs is 50 times higher than the penalty for killing their husband and father?
Our penalties -- under both federal and state plans -- must be more meaningful.
Working with State Plan Partners
We are working with the state plans to increase their penalty levels as well. As low as federal OSHA penalties are, the average penalties in many of these state plans are significantly lower. We will be asking the State Plans to change their penalty calculation policies in an "at least as effective" manner, and we will be coordinating with the State Plan organization -- OSHSPA -- to establish criteria for this.
The current variation in penalties presents a problem. When a pattern of serious injuries or incidents emerges, demonstrating a widespread hazard that demands attention by our nation's employers, a credible, concerted, nationwide enforcement response is the most effective means of raising industry awareness and achieving widespread compliance.
This means: Faced with nationwide problems, we need a nationwide response that is consistent and proportionately tough.
The OSH Act gives OSHA responsibility to "assure so far as possible every working man and women in the Nation safe and healthful working conditions." The Act authorizes OSHA to take the lead in organizing an effective response to hazards, and the support and assistance of state plans that OSHA funds and monitors under Section 18 of the OSH Act is an essential part of an effective, national response.
The OSH Act and implementing regulations make it clear that OSHA has authority to require state plans to respond to major new federal enforcement policies by adopting appropriate parallel changes. An example is OSHA's adoption of a National Emphasis Program; accordingly, we are now asking state plans to participate in new NEPs by adopting the federal program -- or by adopting an equivalent state program if it can document how the state program is "at least as effective."
On the other hand, I recognize that if OSHA is requiring the states to participate in National Emphasis Programs, states should have the opportunity to participate in the development of these programs.
We will soon deploy a preliminary effort to establish a permanent structure for consulting and obtaining state input on proposed NEPs and other significant policy changes that affect the states.
Enforcement remains a priority for us because it is a proven, useful deterrent, even for the best employers who may be tempted to defer maintenance or cut corners on worker training and safety procedures. The threat of enforcement and penalties reminds all employers to do the right thing for their workers.
OSHA considers adequate penalty levels and the deterrent effect they provide to be essential parts of OSHA enforcement. Workers across the country need to know that the effectiveness of penalties issued to employers who endanger workers' lives and health will not depend on what side of a state border they happen to work.
Under the old system, the average federal OSHA penalty for a serious violation -- around $1,000 -- was far too low to exert credible deterrence. OSHA moved to address this problem by initiating new procedures, effective October 1, which raised proposed penalties for employers who fall under federal jurisdiction.
We also believe it is our legal responsibility to ensure that penalty levels in the state plans provide a credible deterrent to employers who may be balancing the cost of workplace improvements against the likelihood of receiving significant penalties.
Civil penalties must be stiff enough to provide assurance that employers -- whatever their size -- who want to do the right thing will not suffer a competitive disadvantage by complying with OSHA requirements. OSHA's new penalty structure clearly fits the definition of a "change in policy or procedure of national importance" requiring state action.
In some states, penalties will need to rise significantly to become "at least as effective as" the new federal structure. Currently, far too many states have average serious penalty levels that simply do not provide a credible deterrent. Average penalties as low as $300 for a serious violation are simply not a meaningful deterrent in the year 2010.
If you'll recall, the OSH Act was enacted, in significant part, because state enforcement programs at that time varied widely from state to state, and we know that such wide discrepancies in penalty amounts erode the deterrent effect of OSHA penalties nationwide.
Among the things we will be considering as principles for a sensible state plan penalty policy are policies that recognize the importance of maintaining the effective deterrent value of penalties, recognize room for local variation, and contain clear and transparent criteria that will ensure state penalty policies and enforcement programs are at least as effective as federal OSHA's.
Enhanced FAME Reports
As you all know, the need for increased oversight of the state plans by federal OSHA was prompted more than two years ago by a disturbing series of worker deaths on the job in Las Vegas.
OSHA responded by conducting a special evaluation of the Nevada Occupational Safety and Health State Plan. Significant problems in the state's program were revealed. To help assure worker protection in Nevada and to provide technical assistance to the state in addressing the issues identified during its evaluation, OSHA has opened an office in Las Vegas.
Then, OSHA widened its scope. We informed the states that we would conduct expanded evaluations of all the state plans' enforcement programs -- to assess whether any other state plans have problems similar to Nevada's and to determine whether they are operating as effectively as federal OSHA to protect workers.
At the end of September, we released 25 enhanced Federal Annual Monitoring and Evaluation ("FAME") reports of state plans. I appreciate the cooperation that Washington displayed throughout the process as our Regional Office conducted on-site monitoring and shared its draft report with you. Because of the excellent working relationship between OSHA and DOSH, the study of Washington State's plan was completed in a timely manner, and I am grateful that DOSH was responsive to OSHA's recommendations.
Some of our state plan partners said they welcomed OSHA's oversight and that it was time to do a more intensive review than we have done in a long time -- a position we wished more states had taken. The fact is, over time in many state plans, state practices and procedures evolved to be more variant than anyone was aware. These have been identified now, and I hope we can work together to establish more consistent and perhaps rigorous ways of running our mutual program.
And, yes, there's room for improvement at the federal level as well -- as outlined in the recent GAO report on the Whistleblower Protection Program and the OIG report on penalties.
Except in one or two state plans, where the budgetary commitment to the program is in jeopardy, none of the problems identified in the Enhanced FAME reports is catastrophic or threatens continued plan approval.
There has been a fair amount of media interest in our expanded annual state reviews. I see the media interest as constructive for all of us: The news stories increase awareness of state plans in general, they focuse attention on workplace safety and the tragedies of worker injuries and fatalities, and they may even help bring needed attention to budget situations in many states.
FY 2010 Evaluation Reports
With the FY 2009 reports having just been issued, we now need to start preparing the FY 2010 evaluation reports.
One of the most important parts of next year's reports will be a status update on your response to the recommendations of the 2009 Enhanced FAME reports.
I realize that you may need some time to accomplish this -- although since you have been aware of most of the recommendations in your reports since the spring of 2010, I expect that you are well on the way to addressing any issues. Naturally, if you have questions, Region X staff and I will be glad to work with you.
Injury Tracking and Reporting
OSHA is moving ahead on several other fronts to make the Agency as responsive to the needs of our 21st century workplaces.
As you all know, OSHA requires many employers, especially those in high-hazard industries, to keep records of workplace injuries. While this information is certainly useful to OSHA, the primary value of this information is to allow employers and workers to investigate the causes of injuries and to prevent future injuries from occurring. Many responsible employers currently do so; unfortunately, many others do not.
Employers who compile OSHA logs but do nothing with the information are missing an important opportunity to reduce injury and risk.
Even worse: If injuries are not recorded, they will not be investigated -- which is why OSHA is very concerned about the existence of incentive programs in some workplaces that appear to encourage working safely but in fact discourage workers from reporting their injuries.
Here's an example of a negative incentive -- the kind of program we don't want to see:
A union official at a big petroleum company contacted OSHA a while ago when he saw a "Safety Message" circulated to contract workers who were building an addition to a refinery. This "Safety Message" from the general contractor and the refinery management said, in essence, "If you get injured on the job, you're suspended, and if you don't report the injury, you're suspended." Wait -- it gets better. The policy warned: "If you're a supervisor and your workers get hurt on the job, you'll be suspended, too!" The union official who saw this letter had the good sense to contact OSHA -- for which I'm grateful. This allowed OSHA to intervene and make sure that this policy was not implemented. After a discussion with OSHA, the refinery manager rescinded this policy because it doesn't encourage safe work practices; it only makes workers afraid to report their injuries. That's the opposite of what we want.
We strongly disapprove of programs that discipline workers for reporting injuries, or that offer workers parties and prizes for not reporting injuries, or programs that award managers large bonuses for driving down their injury rates.
We were pleased to learn in October that the Voluntary Protection Programs Participants' Association, which includes many of the country's large employers, supports OSHA's position and opposes incentive programs that offer rewards for not reporting injuries.
Not all safety incentive programs are bad. Some employers have programs that reward workers for demonstrating safe work practices, reporting hazards or near misses, or participating in health and safety training or on a health and safety committee. These employers have a better understanding of injury and illness prevention programs. They recognize that focusing on positive behavior will be more productive for a company than punishing workers who report injuries.
OSHA is trying to learn more about the workings of incentive programs. If you encounter a program you think is either effective or ineffective, let us know. Send Michael (Silverstein) a note that he can pass along to me and to Dean Ikeda.
With the help of our state plan partners, OSHA initiated a Recordkeeping National Emphasis Program in October 2009 to identify and correct under-recorded and incorrectly-recorded worker injuries and illnesses on the OSHA Form 300.
In the inspections we have conducted so far with high-hazard establishments, we found recordkeeping violations in almost half the inspections.
In August, we issued egregious willful citations for recordkeeping violations against an employer in Houston for a proposed penalty of $1.2 million. The company's practice of "redlining" reports -- that is, substituting the company's criteria in place of OSHA recordkeeping requirements -- resulted in gross underreporting of injuries and illnesses.
The lesson for employers is simple: We want them to keep accurate, complete records and use this information to improve their workplaces. In the end, it doesn't pay to "cook the books."
I would be interested in hearing what you have found in Washington in your records reviews.
Injury and Illness Prevention Programs
Enforcement is most effective as a deterrent, but OSHA is looking at the bigger picture as we seek ways to change the culture of workplaces so that employers and workers cooperate with a focus on prevention.
In Washington State, you have shown forward thinking by requiring all employers to have written injury prevention programs and to establish safety committees or conduct safety meetings for all workers. I very much appreciate this effort to inject into your workplaces effective systems that give workers a voice and promote a culture of safety.
Earlier this year federal OSHA began developing a rule that would require employers to implement an Injury and Illness Prevention Program. This kind of program, as you know, involves planning, implementing, evaluating, and improving processes and activities that protect worker safety and health.
The rule would require employers to take an active approach to ensure healthful and safe working conditions for their workers -- focusing on all recognized hazards, not merely ones for which OSHA has standards.
We have concluded five stakeholder meetings around the country with significant participation by employers and labor unions. We are eager to move forward to the next stages of the rulemaking process.
The idea of an Injury and Illness Prevention Program is hardly new; you have had it in Washington for quite some time, as have thousands of the best workplaces in America where the beneficial results have been evident: high efficiency, greater worker productivity and lower costs that make their workplaces strong and competitive.
I have stated that OSHA is on the move, and this is apparent as we advance with an aggressive regulatory agenda.
After years of work, this year we issued a historic standard to protect workers operating cranes and derricks. This standard, which took effect November 8, is expected to save many lives and prevent many injuries each year.
We are making progress on finding a better way to address our seriously outdated Permissible Exposure Limits (PELs) for chemicals in workplaces. Many of these standards were adopted in the 1970s, based on science in the 1950s and '60s. Science has moved on, and we now know there are significant dangers at lower exposures than was thought almost half a century ago.
In June, OSHA assembled a group of stakeholders to discuss options for updating the PELs. These stakeholders, from industry, labor and academia, provided OSHA with several innovative potential solutions.
Then, we held a Web forum to encourage the public to nominate chemicals they believe are most hazardous for workers. We received more than 130 nominations, and these are posted on our Web site. Using those nominations, input from the OSHA field offices and other preliminary information, we have developed a draft list of 16 chemicals -- including isocyanates, manganese, styrene, n-propyl bromide, and perchloroethylene.
To refine this list, we are working closely with NIOSH, the National Institute for Occupational Safety and Health, to refine our target list of chemicals that pose the greatest danger to America's workforce -- and this list of chemical is where we will next concentrate our attention.
Compliance Assistance and Outreach
As we move ahead with standards and enforcement, OSHA continues to offer compliance assistance and outreach to employers -- especially owners of small businesses who want to do the right thing for their workers.
This is why our cooperative programs remain an important part of the Agency. Let's be clear: OSHA recognizes and values our Alliances, Strategic Partnerships, SHARP and Voluntary Protection Programs when they work; that is, when they include a worker participation component and demonstrate effective results that truly create a culture of safety and health in workplaces.
VPP participants especially offer examples of workplaces where management and labor work together with superior results. We wish all workplaces would live up to the VPP model, which is why OSHA would like to preserve these programs. They have a place in our toolkit.
A year and a half ago, OSHA began a review of VPP and recommendations from the Governmental Accountability Office to improve the administration of VPP. We took a number of actions to improve OSHA's internal controls for a more consistent administration of the VPP and to preserve the integrity of the programs.
With our review now completed, OSHA will be moving ahead on processing applications for renewals of VPP sites.
I want you to know that I remind business owners all the time to take advantage of the state-operated On-site Consultation Program. More than 2,500 employers in Washington State used this service last year to obtain free, confidential workplace safety and health advice.
If anything, strong enforcement efforts should move more employers to decide not to wait for a worker tragedy to happen. Rather than waiting for OSHA to come knocking on their doors, we want to see more business owners -- especially small and medium ¿sized business owners -- seeking professional assistance to keep their workplaces hazard-free, efficient and productive.
I'm sure you're aware that in September OSHA published a notice of proposed rulemaking to revise regulations covering the On-site Consultation Program. OSHA is seeking greater flexibility for inspecting worksites, even if those sites are normally exempt because of their status under the Safety and Health Achievement Recognition (SHARP) Program.
We put forth this proposal because, while we encourage participation through our cooperative programs, our number-one priority must remain protecting worker safety and health.
Comments closed November 2, and we are currently reviewing responses before deciding how to proceed.
Although Washington operates its private sector Consultation Program under its State Plan rather than through a Section 21(d) program, the state consultation program will need to be consistent with the final federal regulation.
Outreach to immigrant workers
OSHA is also continuing to reach out to non-English-speaking workers, who are injured and killed on the job in disproportionate numbers nationwide. We want to be sure that these workers, who often have limited literacy, are not exploited by unscrupulous employers.
As we all know, when irresponsible employers under-pay, under-train and under-protect immigrant workers from workplace hazards, this puts responsible employers at an unfair disadvantage, and this is unacceptable.
Earlier this year, Secretary of Labor Hilda Solis held a National Action Summit for Latino Worker Health and Safety in Houston to address these issues and to find new ways to reach out to immigrant workers.
Since then, in every part of our nation, OSHA has been partnering with consulates in key cities, and through community and faith-based organizations to inform these workers about their rights to safe workplaces, personal protective equipment and training -- and we're helping them understand how to exercise these rights.
I appreciate how DOSH and federal OSHA followed up on the Latino summit by establishing an interagency working group to improve Latino worker safety and health in this region. I look forward to updates on our collaborative outreach efforts.
I also appreciate how Washington State has responded to the safety and health needs of migrant workers, such as your innovative rent-a-tent program that provides migrant cherry harvest workers with humane living and sleeping quarters.
These kinds of responses by government underscore the principle that workers are human beings entitled to respect. You will recall how, earlier this year, OSHA inspectors received a directive to make sure that employers are providing their workers with safety and health information and training in a language and vocabulary that the workers can understand.
This year, OSHA's Susan Harwood Training Grant program provided funding to an unprecedented number of community-based worker organizations, including many representing Latino, Asian Americans and Pacific Islanders, and other vulnerable workers. Our new Pilot Grants will enable groups that have never been involved in health and safety issues to develop programs that can provide knowledge and tools that their members need to stay safe and healthy on the job.
Again, I am pleased to see DOSH do its part to promote worker education and training -- through its own Safety and Health Investment Projects (SHIP) grant program. Much like our Harwood grants, your SHIP program gives funding priority to proposals involving cooperation between employers and workers. I am glad that a representative of OSHA's regional office is a member of the grant applications review team.
I hope I have given you a clear image of OSHA's very busy agenda. OSHA and the Department of Labor are working to end the mayhem in our workplaces and to remind employers to make every job a safe job.
I want to once again thank the leadership and staff of DOSH here in Washington State. You are saving lives every day.
I appreciate the fact that the Washington Department of Labor and Industries hosts an annual Worker Memorial Day event to honor fallen workers and to raise awareness of workers' rights and the absolutely critical need for enforcement, compliance assistance and worker training. I know that Governor Christine Gregoire and Judy Schurke both spoke movingly at the April event this year. I appreciate that this is a difficult event for everyone involved -- workers, families of victims, and the speakers as well; however, the event serves a valuable service: It puts a human face to grim statistics and offers a measure of closure to affected families by pledging that their loved ones have not died in vain.
Let me leave you this morning with this final thought:
We must not think of the Gulf Coast oil spill, the Big Branch Mine tragedy, the Tesoro refinery fire or the Kleen Energy plant explosion -- as isolated incidents or random events. Collectively, these tragedies -- which all happened in our country this year --point to a disturbing pattern of deadly neglect that our nation has tolerated for too long as simply "the cost of doing business."
We cannot allow this to continue. Lives are at stake and our nation's economy suffers when rogue employers seek an unfair advantage over responsible business owners by cutting corners on worker safety and health.
It's up to us -- federal OSHA and the state plans -- to work together to level the playing field by enforcing rules that everyone must follow to ensure fair competition in the marketplace.
Good employers and workers everywhere are depending on us to deliver a consistent, coherent and compelling message, coast to coast: Competition, limited resources or just "being too busy to bother" can never be an excuse to gamble with human lives.
For everything you do every day to help workers return home to their families, safe and healthy: Thank you!