Remarks by
DAVID MICHAELS

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION
Annual Judicial Conference

Charleston, SC
Tuesday, Sept. 14, 2010

GREETINGS: OSHA'S RETURN TO FUNDAMENTALS

Good morning. When I arrived to lead OSHA about 10 months ago, Jordan Barab had already laid a good foundation for the fundamental re-focus in the Agency directed by Secretary of Labor Hilda Solis.

Recognizing that about 5,000 working men and women in America were getting killed on the job every year and thousands more injured and exposed at work to potentially long-term health hazards, the new Administration reasoned that changes had to be made in OSHA to make a greater impact on our workplaces.

Certainly all these preventable deaths and injuries in our workplaces do not reflect Secretary Solis' vision of "Good Jobs For Everyone" when we agree that only safe jobs are good jobs. Numerous reports from the occupational safety and health community as well as within the Federal government in recent years criticized OSHA for failing to fulfill its mission.

In the last year and a half, OSHA's focus has returned to its original intent as created nearly 40 years ago by the OSH Act. The Agency is first and foremost a public health agency with a mission to protect workers from death, injury and illness, and now OSHA is acting like it.

My entire career has been focused on public health and safety, so I feel very much at home guiding the Agency's safety and health professionals.

CHALLENGES

To be clear and candid: OSHA faces significant challenges: We are a small agency; with our state partners we have about 2,000 inspectors responsible for the health and safety of 130 million workers, employed at 7 million worksites around the nation - which translates to about one compliance officer for every 60,000 workers.

Added to this challenge are: OSHA's limited budget, many outdated standards, weak penalties, and a workforce in dire need of more training and understanding of their right to workplaces free of known hazards.

Our response is to leverage all the resources and tools available to this Agency - including outreach, consultation, rulemaking and enforcement - to maximize our ability to protect our workforce.

My message to you is very much the same one I have expressed to workers, employers, associations and others: OSHA cannot achieve its mission alone. To ensure that every worker returns home every day safe and healthy, it is going to take a collaborative effort, because worker safety and health is everyone's business.

OSHA LEADERSHIP: EXPERIENCE AND COMMITMENT

Before I lay out for you in more detail my vision for OSHA, let me begin by assuring you that the Agency has a solid team of people in place with many years of experience and a commitment to moving OSHA forward.

Jordan Barab and Richard Fairfax are OSHA's two Deputy Assistant Secretaries; Debbie Berkowitz is my Chief of Staff; Tom Galassi has taken over responsibilities in the Directorate of Enforcement Programs as the new Director; and we are conducting a nationwide search for a director to lead the Directorate of Construction.

TOLL OF DEATHS

We will need every able leader on OSHA's team as we confront a disturbing, continuous tide of carnage in our workplaces.

In recent months we have witnessed a series of workplace tragedies: Seven workers were killed in a refinery fire in Anacortes, Washington; 29 coal miners perished in the Upper Big Branch mine in West Virginia; 11 more were lost in the Deepwater Horizon explosion off the coast of Louisiana; and when the Kleen Energy power plant construction site in Connecticut blew up, six more workers were killed.

These catastrophic events are powerful reminders of the risks faced by workers across our country every day.

Last month, the Bureau of Labor Statistics released a preliminary report on fatal workplace injuries in the United States. In 2009, fatal workplace injuries totaled 4,340 - down from 5,214 reported in 2008; much of this decline may be attributed to the slower economy and fewer people at work.

Still, these are 4,340 people whose friends and families are grieving - 4,340 deaths that break down to more than 80 workers a week who did not return home last year, or nearly 12 people every day who were killed on the job all across America.

I'm thinking of Eleazar Torres-Gomez , a 46-year-old worker with a wife and two children, who was killed at a Cintas laundry plant in Oklahoma when he fell onto an unguarded conveyor and was dragged into a 300-degree industrial dryer. He was already dead from burns when another worker found him 20 minutes later. The company agreed to pay $3 million and to increase safety training for its workers.

And I'm thinking of Jeff Davis, working in a Delaware oil refinery, who was killed when a tank of sulfuric acid exploded. His body literally dissolved in the acid. The OSHA penalty was $175,000. Yet, in the same incident, thousands of dead fish and crabs were discovered, allowing an EPA Clean Water Act violation amounting to $10 million.

How can we tell Jeff Davis' wife Mary, and her five children, that the penalty for killing fish and crabs is many times higher than the penalty for killing her husband and their father?

The painful truth is that OSHA's penalty structure hasn't been increased in 40 years, not even to keep pace with inflation. OSHA is looking to strengthen our penalties, but we are limited.

The Protecting America's Workers Act and the Miner Safety and Health Act of 2010 are now under consideration in Congress. Each of these bills would strengthen OSHA's enforcement powers, update our penalties, and bring more consistency and strength to whistleblower protections. There are provisions in the Protecting America's Workers Act to grant families of injured and killed workers more access to information when OSHA investigates a workplace tragedy.

What we really need to get employers' attention is the threat of criminal penalties to respond to criminal negligence. Few things focus the mind like the possibility of doing time behind bars.

Stronger enforcement and higher penalties won't bring back Jeff Davis and the thousands of others who die on the job every year, but citing employers - and making those citations stick - will send the right message to employers who, too often, consider worker deaths simply one of the costs of doing business.

"CATCH ME IF YOU CAN" MENTALITY

• In many instances, when questioned by our inspectors, employers admit that they know what they need to do to protect their workers, but they decided to ignore the rules - exhibiting a callous "catch me if you can" mentality that puts profit before prevention and gambles with peoples' lives.
• We are also concerned that many employers' reports of injuries and illnesses are inaccurate. Our inspections have uncovered evidence of employers discouraging workers from reporting injuries or seeking medical treatment that would lead to an OSHA-recordable incident.
• This is unacceptable. When worker injuries and illnesses are concealed, no investigation by the employer or OSHA can take place, so nothing is learned, nothing is corrected, and workers remain exposed to future harm.
• Because accurate reporting is essential to eliminating injuries and illnesses in the workplace, last October we launched a National Emphasis Program on recordkeeping to assess the accuracy of injury and illness data recorded by employers.
• The recordkeeping NEP involves inspecting worker injury and illness records prepared by businesses and appropriately enforcing regulations when we find employers under-recording injuries and illnesses.
• Earlier this month, we issued 83 willful citations to an employer for failing to record and for improperly recording work-related injuries and illnesses in its manufacturing facility. For this irresponsible behavior, we proposed penalties totaling $1.2 million.

STANDARDS

Creating effective, science-based standards - a cornerstone of workplace safety and health - is a long and complex process made all the more so by complicated rulemaking procedures. Given the existing process and limited resources, OSHA can work on only a limited number of standards at a time.

DOL and OSHA remain committed to an aggressive regulatory agenda, and we have made progress in recent months:

• In June the direct final rule on "hexchrome" became effective, requiring employers to notify their workers of all hexavalent chromium exposures.
• In July we issued a long-awaited new rule addressing the use of cranes and derricks in construction, replacing a standard that was four decades old.
• We are moving ahead on revising the Hazard Communication Standard to make it consistent with the Globally Harmonized System of Classification and Labeling of Chemicals.
• We are pressing forward to develop standards addressing hazardous exposure to crystalline silica, beryllium, combustible dust, and food flavorings containing diacetyl.

Most importantly, this summer we held a series of stakeholder meetings in New Jersey, Texas, California and Washington, D.C., to gather information that will be used to propose a rule requiring employers to implement an Injury and Illness Prevention Program tailored to their workplaces' hazards.

Essentially, through this common sense proposal, we will be asking employers to find the safety and health hazards present in their facilities that might injure or kill workers - and then fix those hazards.

We are working to move the burden of responsibility for worker safety and health from OSHA enforcement to employers. We have to, because OSHA cannot write standards for every possible hazard in every workplace.

We have occupational exposure standards for a relatively small percentage of chemicals commonly used in American workplaces, and most of these are based on out-of-date science. At best, we can work on updating only a handful of standards a year.

However, while we are working with other agencies and stakeholders to explore long-term solutions, we need to protect workers who are in danger now.

To fill gaps in the protections afforded by standards, the Agency uses the General Duty Clause of the OSH Act to cover workers exposed to known workplace hazards. The General Duty Clause serves an important purpose because it is impossible for OSHA to create a standard for every hazard -- as in cases of ergonomics workplace violence, specific chemical or bacterial exposure, or structural strength. For example, OSHA settled a case last year with Cascades Boxboard Group for $191,000 after our inspection found 170 workers at a Connecticut plant in danger of being crushed to death. The building where they were working had such extensive rust and corrosion to its support structure that a portion of the roof had collapsed. We found extensive evidence of structurally unsound walls and supports, including dangerously sagging wooden beams. We brought action against the company under the General Duty Clause because the employer failed to furnish something as basic as a safe place of employment.

ENFORCEMENT ACTIVITIES

In June of this year the Agency launched its Severe Violators Enforcement Program, a refinement of the Enhanced Enforcement Program, designed as a special, supplemental enforcement tool to address recalcitrant employers who fail to meet their obligations under the OSH Act.

The program features more mandatory inspections of an identified company; more mandatory follow-up inspections - including inspections at other locations of the same company; and a more intense examination of an employer's history to assess if there are systemic problems that would trigger additional mandatory inspections.

Next month, OSHA will formally launch a new policy that increases our proposed penalties. We are well aware that our increases in penalty amounts may raise the contest rate, affecting not only OSHA but also the Solicitors' Office and the OSH Review Commission, but we do not foresee the magnitude of change that occurred when the Mine Safety and Health Act was amended several years ago. Changes to that program went well beyond modifications in penalty levels.

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.

By the end of this month and the current fiscal year, OSHA will have issued more egregious and significant cases than it has at any time in the last decade. We expect to issue 19 egregious cases this year and close to 160 significant cases - including the $81 million dollars issued against BP and the $16 million dollar case against the Kleen Energy facility.

SUMMARY: MISSION PRIORITIES

We have been transparent with stakeholders about the direction this Administration is taking the Agency. We have realigned OSHA's priorities and returned the Agency to the original intent of the OSH act with a firm focus on standards and enforcement.

Despite the limited numbers of inspectors and limits on the penalties we can issue at this time, OSHA is moving ahead to stop the deadly toll of workers being maimed and killed on the job every day across the United States.

We are thinking in broader terms. Increasingly our investigations are looking not only at specific actions or use of equipment that caused a worker injury, but also at the overall culture of the company. We are examining whether employers are merely focusing on compliance, or taking steps to improve overall performance, reduce risk, and make prevention part of daily operations.

We are meeting with stakeholders and asking for their help to propose new ways to streamline the process of creating and updating standards for thousands of hazardous chemicals in workplaces.

The piecemeal approach of taking years to develop individual standards for every single chemical is outdated, 20th century thinking.

We are working to modernize OSHA's policies and practices to keep our workforce healthy, safe, productive and competitive with the world.

I ask the Commission's help - to play its part - to ensure that employers obey the law, respect their responsibilities, and protect their workers. The 130 million workers in America are counting on us, as are their families, friends and communities.

And together, I hope we can make worker safety more of a household word and discussion at every kitchen table across America.

Last week, the National Opinion Research Center at the University of Chicago released a study on public attitudes on workplace safety. The study noted that "It is striking that coverage in the media and public opinion polls has virtually ignored the 11 workers killed by the blowout and destruction of the drilling platform" on the Deepwater Horizon oil rig. Most of the media attention has focused on the environmental damage to animal and plant life in the Gulf of Mexico.

Along these same lines: The massive egg recall dominating the news last month reminds us that Americans are intensely concerned about their health, the environment and sustainability of our social and economic infrastructure. When we go into the supermarket, we see cage-free eggs and free-range chicken products because consumers have cared enough to demand them; but sometimes it seems that not enough people care about the workers preparing those chickens - such as the unprotected assembly line workers who suffer lacerations, amputations, strains, sprains and crippling repetitive motion injuries at the hands of unscrupulous employers who put profit before safety.

It's time we work together to raise the level of awareness in our country - to remind Americans at every turn that they need to be concerned for their workers, not just their chickens, their fish and their beaches.

America doesn't need more refinery explosions, trench cave-ins or factory fires. We need more companies -

• acting responsibly and following the law;
• giving their workers training and protective equipment;
• providing OSHA with accurate reports when workers are injured or taken ill, and
• pursuing a culture of safety and health on the job every day of the year.

Thank you.