DEPUTY ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH
US DEPARTMENT OF LABOR
Before the SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES AND REGULATORY AFFAIRS
on H.R. 3310, the Small Business Paperwork Reduction Act Amendments of 1998
Mr. Chairman, members of the subcommittee, thank you for this opportunity to testify before you today about H.R.3310, the Small Business Paperwork Reduction Act Amendments of 1998 (SBPRA).
OSHA joins in the subcommittee's desire to reduce unnecessary paperwork. Today, the New OSHA concentrates more on preventing illnesses and injuries, and less on simply enforcing rules. As part of that effort, OSHA has significantly reduced its focus on mechanical paperwork violations. For example, in the past, OSHA cited many employers who failed to display a required safety poster in their workplaces. Today, if employers fail to display the poster, our compliance officers give them one.
OSHA reduced its paperwork citations by 75 percent from 1992 through 1997. As a percentage of all OSHA violations, paperwork citations have fallen from 29 to 10 percent. OSHA is continuing to focus on real improvements in the health and safety of working people, rather than on the number of inspections, citations or penalties. However, it is critically important for any legislation Congress enacts on this subject to distinguish between traditional "paperwork" requirements and the information collection requirements in standards that directly impact worker safety and health.
Small Business Paperwork Reduction Act Amendments
SBPRA amends the Paperwork Reduction Act of 1995 (PRA) to require that federal agencies: (1) publish annually a list of Federal paperwork requirements applicable to small businesses; (2) waive any civil penalties for first time violations of paperwork requirements by small businesses; (3) establish one point of contact for small business; and (4) establish an inter-agency task force to study and identify actions to streamline reporting requirements for small business. While OSHA applauds the intent of this proposal, we are extremely concerned that waiving penalties for some so-called "paperwork" violations could cost some workers their health or their lives.
SBPRA uses the "collection of information" definition from the PRA. Consequently, it affects standards that most people would not view as mere paperwork. I will use my testimony to illustrate these issues to the subcommittee.
Suspension of Penalties
SBPRA prohibits agencies from imposing fines for first-time violations by a small business for information collection requirements, where the violations have not caused actual serious harm to the public health or safety, as long as the small business corrects the deficiency within six months. The bill provides an exception where the violation could imminently and substantially endanger public health or safety.
OSHA understands the desire to treat businesses that make good faith efforts at compliance differently from those that do not. In fact, OSHA's current policies already make such a distinction. OSHA already provides significant penalty reductions based on employer size, good faith and history of violations, with the smallest employers eligible for the largest reductions. Our penalty reduction system is required both by the Occupational Safety and Health Act and the Small Business Regulatory Enforcement Fairness Act (SBREFA) and follows the President's directive of April 1995. As part of that system, where paperwork violations do not materially affect workplace health or safety, OSHA has directed its field compliance officers not to issue citations. Consequently, the proposal in SBPRA is duplicative and unnecessary. Moreover, eliminating the potential for any penalties for first time violations removes the incentive for employers to voluntarily comply without intervention. This is particularly important where requirements have a true health and safety impact. The bill attempts to guard against risks to safety and health by allowing employers 24 hours to correct violations that have an imminent and substantial danger to public health or safety. In such instances, the bill allows the agency to impose the fine immediately if it informs Congress. While we acknowledge the authors' desire to protect against safety and health risks, the bill fails to protect workers from very real dangers. Therefore, we strongly oppose this provision of SBPRA.
The bill should not hinder in any way an agency's ability to act immediately to eliminate an imminent or potential danger to the health or safety of workers and the public. Furthermore, the definition of "public health or safety" within SBPRA is not clear, as the bill provides no context to determine what "public health or safety" means. We suggest that the language of Section 2(b)(i)(1)(B) be amended to allow the agency to impose penalties not only when it believes the violation has "caused actual serious harm to the public health and safety" but also when the violation appears likely to cause serious harm.
As drafted, section 2(b)(i)(1)(B) could place workers at risk of serious accident or injury. Many important "collection of information" requirements exist that significantly and directly protect workers from serious injury and illness. However, those requirements might not reach the bill's imminent and substantial danger threshold. For example, OSHA's worker right-to-know program in its Hazard Communication Standard requires a certain amount of paperwork to ensure that the program is effective. If a worker is unaware that a hazardous chemical substance is present in the workplace, he or she may be at serious risk of illness or death. At the same time, this risk, while serious, may not be so great as to constitute "an imminent and substantial danger to the public health or safety." Enforcement of OSHA standards concerning written lockout/tagout programs, analysis of hazard processes at chemical plants, hearing conservation and toxic exposure monitoring records, all of which have a direct and significant impact on employee safety and health, would also be rendered ineffectual in most instances by this section of SBPRA.
There are countless examples of workers being killed or injured when employers failed to adhere to basic information sharing requirements. In one instance, an explosion ripped through a Phillips 66 Company complex in Houston, Texas, killing 23 people, in part because a small subcontractor failed to obtain the necessary permits to ensure that proper safety precautions were observed during maintenance operations. After this tragic incident, Congress directed OSHA to require all businesses using large quantities of potentially volatile chemicals to implement written procedures minimizing the potential for catastrophic explosions, fires or other events which can seriously harm workers and people living nearby. Under the resulting Process Safety Management standard, written process hazard analyses and procedures, covered as paperwork under the PRA, must be put in place to protect workers before a catastrophe occurs. The bill, on the other hand, would send a message that employers can allow life threatening conditions to persist until, and even after, they are discovered by OSHA. To allow any additional time for a catastrophe to occur, whether it be one hour, twenty-four hours, or six months later, would seriously jeopardize employee safety and health and undermine OSHA's statutory mission.
In another instance, two employees died from asphyxiation in a confined space while cleaning a tank. Failure to follow written procedures required in OSHA's confined space standard was a significant factor in their death. OSHA's confined space standard requires employers to monitor and record the level of contaminants in the atmosphere before employees enter work areas which may be deficient in oxygen or contain contaminants. Records of such monitoring is considered a "collection of information" under the PRA. If employers do not perform such monitoring, employees face the risk of being asphyxiated or overcome by radiation or toxic fumes. If this monitoring is to protect workers effectively, employers must monitor routinely whenever there is a possible danger, not just when OSHA can prove that a particular employee in a particular confined space is in "imminent danger" of death or serious injury.
Tragically, OSHA has many other examples where lack of compliance with the "paperwork" requirements of the confined space regulation led directly to a worker's death, including the recent accident at the Yorktown Naval Weapons Station. Four workers were asphyxiated after being exposed to raw sewage fumes because their employer had not developed proper rescue procedures or trained its employees in proper confined space entry practices and procedures. All these corrective measures are part of a confined spaces entry program which would be considered a "collection of information" under SBPRA.
Small Business Liaison
The New OSHA uses a variety of tools to protect workers, including enforcement, partnership, compliance assistance, standards development, special emphasis programs at the national, regional and local level, and other appropriate tools. This balance of approaches helped earn OSHA good reviews in the Small Business Administration ombudsman's recent report to Congress. According to the report, "OSHA has positively influenced small businesses' perception of their regulatory enforcement efforts." The importance that OSHA places on working with businesses to improve safety and health led us to hire a small business liaison. Consistent with the intent of SBPRA, OSHA's liaison already works directly with small businesses, assisting them with every aspect of OSHA's program.
Although OSHA agrees that legislation like the SBPRA could be beneficial, we have serious concerns about the safety and health impact of the penalty-related provisions in section 2 of the bill. We urge the subcommittee to consider these concerns and modify the bill to guarantee that America's workers are protected.