Remarks By
DAVID MICHAELS
Assistant Secretary of Labor
For Occupational Safety and Health

American Bar Association
Occupational Safety and Health Law Committee
2010 Midwinter Meeting

Coronado, California
Wednesday, March 10, 2010

OSHA Leadership Update

I arrived at OSHA about three months ago to continue the momentum of progress that Jordan Barab began under the direction of Labor Secretary Hilda Solis. Secretary Solis has spoken with passion and enthusiasm about ensuring good jobs for every American. I know that all of us in this room agree on this goal.

I'm an epidemiologist, which means I look at patterns of data to understand why people become sick or get injured. At OSHA, I'm using my experience to abate occupational hazards that threaten the health and safety of working men and women.

I think we all agree that the 5,000 preventable worker deaths recorded in our Nation every year are expensive, disruptive, wasteful, and completely unnecessary. Also preventable are the thousands more who die from occupational disease.

The sooner we can find ways to work together to reverse this deadly toll, the better off our country will be.

New Sheriff in Town

I want to mention here how supportive Secretary Solis has been. From my years inside government and observing from outside, such strong support for OSHA from the Secretary's office has been rare. Much of what we have achieved and will accomplish is because Secretary Solis is pushing us to be more aggressive.

I'm not going to spend a lot of time here today talking about all the great things we're doing. On your schedule, you have presentations and panels on enforcement, standards, state plans, and VPP. Instead, I'm going to focus my remarks on my personal perspective and the broad, strategic approaches that we are taking.

I know that by now you've all heard Secretary Solis describe DOL under this Administration as the "new sheriff in town." This is not an abstract wish; it is a stern description of how OSHA is now working - and I take this phrase seriously.

OSHA is returning to its original mission as a public health agency intent on saving workers' lives. When I talk about saving lives, I don't use the phrase glibly. Every week I sign condolence letters to the next of kin of workers who were killed in events that were entirely preventable.

As sensible and basic as these statements and this mission are, they have raised a great deal of controversy. So, here, in clear terms, are OSHA's priorities...

Enforcement

First and foremost, we will emphasize strong enforcement - as evidenced in our record-breaking $84.7 million citation against BP Texas City, and the sharp increase in our egregious cases.

More initiatives are coming. In the last fiscal year we filed four egregious cases; in the last quarter, we initiated seven.

If the threat of a fine isn't enough, we have other ways to drive home the point that employers need to obey the law.

Last year, in conjunction with the U.S. Marshal's Service, we conducted the first-ever vehicle seizure in an OSHA whistleblower case. We seized a car from the president of Brocon Petroleum after the company failed to pay $7,500 in back wages to a former employee. The back wages were a result of a consent judgment filed in the U.S. District Court for the District of New Jersey to resolve a lawsuit filed by the U.S. Labor Department in March 2008. The vehicle was sold in an auction by the U.S. Marshals to recoup their costs. There was enough left over to pay the whistleblower and cover some of OSHA's costs as well.

We certainly do not see enforcement as OSHA's only function, but we do see it as our most useful function. For those who deliberately defy the law and endanger workers, enforcement clearly is necessary; but even for employers who want to do the right thing, enforcement has its place.

To save lives, OSHA's focus must be on prevention, not just punishment after things have happened.

Strong enforcement provides a strong preventive purpose.

• The mere threat of enforcement makes most drivers think twice about speeding even when they're late for an appointment, or keeps them from having "just one more for the road."
• The credible threat of enforcement also makes most employers think twice about cutting back on preventive maintenance, training or investments in safer working conditions.
• The fear of a serious citation and heavy fine should make employers consider the consequences of cutting corners on safety to meet a deadline.
• And the threat of strong enforcement can encourage employers to seek out a safety consultant or use the free services of our On-site Consultation Program.

So, you can expect to see us moving, to the extent we can, toward higher penalties, not only to send a message to those employers who neglect their workplace responsibilities, but also to those employers who need reminding that a safe workplace is not something to think about only when it's convenient - when you have the time and money - but every day.

Standards

Regarding standards for workplace safety and health: Clearly the current system for issuing standards doesn't work well for those it's supposed to benefit - workers.

When rulemaking takes years and even decades, and when enormous resources required of a new standard mean we can only develop a few at a time, you know something is seriously wrong.

When we're still enforcing chemical standards based on science from the 1950s and 1960s, when OSHA has issued only one chemical standard in the last 12 years - and that under court order - you know something is seriously broken.

We can quibble over what parts of the process may or may not be useful, but I don't think anyone here could rationally argue that this is what the creators of the Occupational Safety and Health Act had in mind.

Regulatory Agenda

Nevertheless, we must work within the existing, flawed system. Therefore, we are pressing ahead with an aggressive regulatory agenda... because lives are at stake.

Not only are we trying to advance those standards that have languished over the past 8 years - silica, beryllium, diacetyl, cranes and derricks, a globally harmonized system for chemical labeling and others; but the Secretary has also proposed a number of new standards - combustible dust and infectious diseases. More are on the horizon.

I want to assure you about our regulatory agenda. OSHA will be realistic. We will not propose any standard that isn't backed by strong science; nor will we require practices that haven't been adopted already by thousands of employers - including many of the companies you in this room represent, companies who take pride in exceeding any conceivable OSHA standard.

We have also proposed to restore the MSD column to the 300 Log. This is a minimal step to ensure better reporting of MSDs and to provide more useful information for employers who are trying to identify hazards in their workplaces.

Some people - including perhaps some of you in this audience - have attempted to alarm your members by inflating the significance of this modest proposal. Most of you, however, have treated this proposal seriously and accepted it for what it is - a very small step to increase accurate reporting.

As for the question on all your minds - "What is OSHA going to do about ergonomics?" - let me say two things:

• First, if we look at this problem honestly, there is little doubt that musculoskeletal injuries remain one of the biggest workplace health and safety problems in American industry. Something has to be done. No agency calling itself the Occupational Safety and Health Administration can go long without addressing this issue.
• Second: I can also honestly tell you that we have not decided yet the best way to confront this problem, given the regulatory process and the complicated political issues surrounding ergonomics.

There are three other items on our Regulatory Agenda that I want to briefly mention:

First, OSHA is revising its Hazard Communication Standard to make it consistent with the Globally Harmonized System of Classification and Labeling of Chemicals. The new standard will include more specific requirements for hazard classification as well as standardized labels to provide consistent information on hazardous chemicals. It will also provide a standard approach to convey information on material safety data sheets with minimal cost to any business, small or large. OSHA will hold hearings later this month in Pittsburgh.

Second: OSHA is expediting its efforts to update existing permissible exposure limits and make other provisions to protect workers from silica dust, which has been shown to cause lung disease, silicosis and lung cancer. We are working to publish a Notice of Proposed Rulemaking this summer.

Third: OSHA is moving forward to protect workers from the hazards of combustible dust fire and explosion. The agency held stakeholder meetings on the future standard in December and we welcomed more comments at a meeting we held in Atlanta on February 17. In the coming weeks we'll be announcing more meetings in other cities.

Compliance Assistance

We have also been accused of abandoning Compliance Assistance in favor of enforcement. Nothing could be further from the truth.

Compliance Assistance was not an invention of the last administration. OSHA has always put a premium on making sure workers understand their rights under the law and possess information about hazards they face on the job.

To put things in perspective, however, we see compliance assistance as a critical support - and not a replacement - for our enforcement and standards activities.

Clearly, employers need help understanding how to comply with OSHA standards and best practices. We understand that small businesses cannot always afford to employ full-time, in-house expertise on safety and health, or even to hire consultants.

This commitment to compliance assistance is why -

• The President has asked for an increase in the state small business consultation program.
• OSHA has launched initiatives to develop more worker-based compliance assistance materials and materials targeted at immigrants and other hard-to-reach workers.
• And we are organizing a Latino Worker summit for next month that will bring together worker rights groups, day labor organizations, employer associations, labor unions and others to develop better ways to reach Latino workers.

Latino Summit

The National Action Summit for Latino Worker Health and Safety will take place on April 14 and15 in Houston, Texas. OSHA is co-sponsoring the event with the National Institute for Occupational Safety and Health (NIOSH), in partnership with the National Institute of Environmental Health Sciences.

The summit will bring together workers and representatives from public and private sectors. Construction is the primary industry targeted for this conference, but we will also focus on other high-risk industries that employ large numbers of Latino workers.

The summit will provide a lot of useful information, including sessions on free services for small employers and effective educational materials and programs to inform Latino workers about workplace safety and health hazards.

The Secretary of Labor called for this summit and she will be on hand to open the meeting. OSHA's Home Page offers a link to information and registration.

Budget

OSHA's proposed budget for the coming year reflects our commitment to use our regulatory authority fairly and effectively. On February 1, Secretary Solis announced the proposed FY 2011 budget for the Department of Labor, including the budget for OSHA.

As the President has said, our country is facing serious budget issues, so we have to be careful about how we spend our money. OSHA's FY 2011 budget calls for $573 million to help OSHA protect 109 million workers nationwide.

This is an increase of just $14 million over our current operating budget - not a big increase, but not bad in the context of the President's announcement that the federal discretionary budget would be frozen for the next three years. This shows the value that this Administration puts on workplace safety.

That $14 million includes:

• $4 million to develop standards
• $7.7 million for federal enforcement
• $1.5 million to support state-run OSHA programs
• $1 million for the state-based On-site Consultation Program
• A quarter of a million dollars for training grants

The budget request calls for OSHA to hire an additional 25 inspectors in 2011 and to move 35 personnel from compliance assistance activities to enforcement.

Specifically, by scaling back our spending on the Voluntary Protection Programs (VPP) and Alliances, OSHA will redirect compliance safety and health officer time - previously spent on these compliance-assistance activities - to inspections.

Without doubt, the VPP makes a valuable contribution to workplace safety. Participating companies go above and beyond OSHA requirements, including many with workplace safety and health programs that should serve as a model for the rest of American companies.

However, we're faced with the difficult choice: Given our limited resources, we must either support companies that are doing a great job protecting employees, or focus on employers who willfully disregard workplace safety and who allow workers to die in situations that could easily have been prevented.

Actually, we're trying to achieve the best of both worlds by directing our resources where they will have the most influence, while doing whatever we can to maintain and grow the VPP program as a model for what all workplaces should be.

Threading this needle is not easy, but the President did two things in his recent budget proposal that point to a solution: He significantly cut funding for VPP, but also made a commitment to work closely with the VPPPA and VPP participants to "identify and secure alternative non-federal forms of funding."

This was not an idle offer or a throw-away line to provide political cover. It is, in fact, the core of our intentions for FY 2011, and we want - we need - to work closely together with VPP members to make sure this happens.

Steve Witt, who directs OSHA's Directorate of Cooperative and State Programs, will give you more details on the past, present and future of VPP in his presentation Thursday morning.

Next year's budget includes an additional $4 million that will help OSHA develop new standards and expedite rulemaking already in progress.

The new budget also calls for adding $1.5 million in increased funding for state plans operating their own OSHA programs. Until the FY 2010 budget, OSHA's State Plan States received little or no annual increase to their funds for a decade, not even inflationary adjustments to cover pay-related increases.

Next year's increase addresses some of that inequity for the 27 state-run programs that cover nearly half our Nation's workers. This funding will provide State Plans with the resources needed to do an additional 3,000 inspections in FY 2011.

This budget increase also supports OSHA's efforts begun last year to more closely examine the activities of our state plans. After our investigation into problems with the Nevada OSHA program, Federal OSHA moved in to do a thorough review, and we are taking similar steps with our other state-run programs.

Federal OSHA doesn't want to take back these programs; we want them to succeed. By working more closely with the states, we are ensuring that they maintain a high quality of service and operate consistently with federal programs.

In its FY 2011 budget, OSHA is also requesting a $1 million increase to fund the state-based On-site Consultation Program. As you all know, this service offers free and confidential advice to small and medium-sized businesses in all states across the country, with priority given to high-hazard worksites.

There is also money in the 2011 budget for training. Funding for OSHA's Susan Harwood Worker Training Grant Program remained stagnant for years until a modest increase was provided in the FY 2010 budget. For next year, we are requesting an increase of a quarter of a million dollars for continued recognition of this important program.

Finally, the shift in resources and additional hiring called for in next year's budget will enable OSHA to conduct more than 3,500 additional inspections in FY 2011.

Stepping Up Surveillance

To further support our enforcement efforts, OSHA is moving toward improving how workplace injuries and illnesses are reported. The Agency needs accurate data to effectively target its inspections and resources, and to measure the impact of OSHA's actions on workplace safety.

In October 2009 we initiated a major National Emphasis Program to ensure that workplace injuries and illnesses are accurately reported.

We were very concerned about recent studies, Congressional hearings and a GAO report that touch on two related issues. These reports not only documented serious underreporting, but also highlighted certain injury and illness incentive and disciplinary programs that may significantly discourage workers and employers from filing accurate reports.

We will enforce our requirements and increase our surveillance efforts to ensure that workers and employers understand how important accurate data is to workplace safety and health.

As we move forward on this important issue, I hope you'll work with us. We need to encourage employers to make improvements in reporting that can help us accurately track workplace injuries and illnesses.

Green Jobs

OSHA is also looking carefully at worker safety and health issues related to green jobs. Green jobs promise to be kinder to our environment and transform our economy, but they're not necessarily safer for American workers. Many of these new jobs pose old occupational hazards.

For example, building and placing modern wind turbines still expose workers to the same hazards faced by traditional welders and tower erectors. On the other hand, some new, energy-efficient products expose workers to new, hazardous substances.

Employers who rush into the green economy without paying attention to worker safety and health will blunder into many preventable injuries and deaths. I am making it my mission and OSHA's mission to ensure this doesn't happen.

Green jobs will not be good jobs unless they are safe jobs.

OSHA Listens

I want to invite businesses to support OSHA's efforts to protect workers by being more productively engaged in the rulemaking process. You know how complex a safety and health standard can be, and we want your constructive thoughts to help us get these standards right.

Last week in Washington, on March 4, OSHA held a day-long forum for stakeholders to offer suggestions. We called the event "OSHA Listens." Some of you may have participated, or perhaps were among the more than 5,000 people who listened from your offices or homes.

I think this forum energized OSHA staff by reminding them of the needs and expectations of our stakeholders.

Many speakers traveled long distances to participate in this forum, including family members of workers who have been killed on the job. When you hear the testimonies of these families, it drives home the point that we must find ways to work together to ensure that no one in America should fear dying on the job just to earn a paycheck.

We planned the OSHA Listens forum as part of President Obama's Open Government initiative. The program was Webcast live, and a transcript of speakers' remarks will be posted soon on the OSHA Webpage. We also have posted comments e-mailed to us over the last few weeks, and we will continue to post all comments received until the end of this month. Please send in your suggestions. I have read every comment sent in as of last week, and I will continue to read the ones we receive.

Also on OSHA's Web pages you'll find new information on how OSHA functions, including budget information and statistical information on inspections and illness and injury reports. If there is other information that you want to see posted on our Web pages, let us know.

We're listening.