July 20

The American Society of Safety Engineers (ASSE) is a global membership association representing 32,000 safety, health and environmental (SH&E) professionals. Our members include safety professionals, industrial hygienists, hazard material managers, engineers, educators, ergonomists, occupational health nurses and others who work for and with employers to prevent workplace injuries, illnesses and deaths. ASSE has three chapters and about 650 members in Wisconsin who help make sure that workers in the state can return each day safe and healthy to their families.

On behalf of our Wisconsin members, ASSE opposes the inclusion of provisions of 2007 AB 358 seeking to diminish implementation of Wisconsin’s elevator and lift law in the 2007-09 biennial budget. Inclusion of this language would reverse a significant advancement in Wisconsin’s oversight of construction safety by eliminating personnel hoists and material hoists on construction sites from the state’s recently enacted oversight of elevator safety. If enacted, Wisconsin construction workers will be lifted up in hoists and will have to work around construction site hoists carrying heavy materials that could very well be set up by someone with no hoist construction or maintenance training or expertise. No reason exists for exempting these kinds of elevators from current Wisconsin law other than to save money for contractors.

Not only does this effort fly in the face of common sense construction safety, it also ignores widely held construction safety standards adopted by the industry through the American National Standards Institute’s (ANSI) voluntary consensus standards for construction

safety. The ANSI/ASSE A10.4 standard Safety Requirements for Personnel Hoists and Employee Elevators in Construction and Demolition Operations requires trained personnel to construct and maintain hoists on construction sites, as current Wisconsin law now requires. To be clear, this is an industry standard adopted by the widest possible range of industry stakeholders, including the national Association of General Contractors (AGC), which is a member of the A10 standards committee. Information on the standard can be found at http://aec.ihs.com/news/asse-construction-safety.htm. While ASSE is the Secretariat of the A10 standard, the committee overseeing the standard is entirely independent from ASSE, as required by ANSI procedures.

Wisconsin construction workers do not deserve less safety protections. To help keep them safe, ASSE urges you to reject inclusion of 2007 AB 358 language in the 2007-09 biennial budget.

On July 26, 2007 Heidi Hansen of the Law Office of Adele Abrams, Esq., ASSE’s Federal Representative, attended the House Subcommittee on Workforce Protections Hearing on S-Miner Act (H.R. 2768) and the Miner Health Enhancement Act (H.R. 2769). Subcommittee members present: Lynn Woolsey (Chair, D-CA), Donald Payne (D-NJ), Phil Hare (D-IL), Timothy Bishop (D-NY), Joe Wilson (Ranking Member, R-SC), John Kline (R-MN), and Tom Price (R-GA).

The following witnesses testified: Kevin Stricklin (Administrator, Coal Mine Safety and Health, Mine Safety and Health Administration, Department of Labor, Virginia), Dennis O’Dell (Safety and Health Director, United Mine Workers of America), Dr. James L. Weeks (Consultant Industrial Hygienist, United Mine Workers), and Mike Wright (Director, Health, Safety, and Environment, United Steel Workers).

Chairwoman Woolsey opened the hearing stating that her Republican colleagues had requested this hearing, reminding all that there were 2 previous hearings with testimony from miners and their families, MSHA, and the mining industry. Rep. Woolsey said the safety and health of miners are too important to ignore or delay in taking action, and that this legislation “makes it crystal clear to MSHA what Congress expects that agency to do.” She stated that since the Miner Act was passed in 2006 “MSHA has not done much to implement the mandates of the law” and that the Miner Act did not go far enough to protect miners. Rep. Woolsey strongly stated that the S-Miner Act and the Miner Health Enhancement Act are critical to providing protection to miners, for health and safety and also for providing an independent ombudsperson to address miners’ complaints, providing protection for whistleblowers.

Ranking Member Joe Wilson responded with a scathing indictment of the process, saying he felt it was flawed because the minority was denied the right to have witnesses from the mining industry and from MSHA (ignoring the fact that Kevin Stricklan, MSHA’s coal administrator, would be testifying). He asked what the supporters of these two bills had to hide since they were not allowing any representatives from the industry or MSHA to testify. Rep. Wilson requested that Bruce Watzman from the National Mining Association (who was in the audience) be allowed to testify. Rep. Woolsey vehemently denied the request, which sparked Rep. Kline to demand why the request was denied, what protocol or precedent Rep. Woolsey was using to deny due process. Rep. Woolsey was momentarily flustered but responded saying that she had been on this subcommittee for 15 years and she had experienced the Republicans using similar tactics with the Democrat minority, and that her decision stood. Rep. Kline said that three of the witnesses were representing unions and the unions only represented 20% of all mine workers so the voice of all mine workers was not being represented. He quoted from Dr. Grayson’s article in the Pittsburgh Post (http://www.post-gazette.com/pg/07203/803212-109.stm) demanding representation from all sides regarding these two bills. Rep. Wilson asked Rep. Woolsey to refer to a specific rule of denial. Rep. Kline asked for a vote (at this point only Reps. Kline and Wilson were present for Republicans, and Reps. Woolsey, Hare, and Payne for Democrats). A voice vote was taken and Rep. Woolsey said the nays have it, the request is denied. Rep. Kline than asked for a role call vote, so the clerk was requested and then a roll call vote was taken with a 3-2 Democrat majority ruling the motion denied.

Kevin Stricklin of MSHA was the first witness to testify. He cited several parts of the bill as impediments to MSHA fulfilling the MINER Act of 2006, or providing less protection than the MINER Act, such as: Section 4(b) regarding underground refuges; Section 4 (c)(2) regarding mine seals; Section 4(i) regarding SCSR inspection program; Section 6(d) regarding required notification of emergencies and serious incidents; and Section 6(g) regarding accidents and investigations.

Dennis O’Dell testified that Congress needs to do more than the MINER Act and that the two bills are more than a step in the right direction, they answer some of the most pressing safety and health needs of miners. Mr. O’Dell said the UMWA is very supportive of the new respirable dust standards, and cannot believe that anyone in the mining industry would be against providing a means to improve safety; and yet he has heard comments from some mining industry folks that “there is no need to act, they say that based on this year’s fatalities, the industry is ‘back on track.’” Mr. O’Dell posed the question, “do you think the families of the 24 miners killed this year believe the industry is back on track?” He went on to testify about elimination of belt air, saying the industry says they will not be able to control their roof if they cannot use it; after researching NIOSH extensively, Mr. O’Dell did not find anywhere in NIOSH that a two-entry system and belt air was a remedy to control adverse roof conditions. What Mr. O’Dell did find was a list of the hazards associated with the use belt air: fires, respirable dust, smoke roll back, and escape hazards. He then quoted the chair of the Mine Safety Technology and Training Commission, commenting on the frequent use of the phrase “voluntary measures” to ensure greater mine safety; Mr. O’Dell said the problem was on the operative word “voluntary” and that will only assure some miners of greater protection when all miners deserve to have the same protections. He further mentioned that in 1969 the industry said it would fold with implementation of the Mine Act and it has not, so do not let the cries of the industry influence the passage of these bills.

Dr. James Weeks testified regarding the change in exposure limits to respirable dust from the 2mg to 1mg and the use of PDM’s. He said this change would be a help to eradicate black lung which has been showing up again in younger miners who started working after the 2mg standard was set. He spoke of the horrible death a miner suffers with black lung, and how it is totally avoidable if the standards were improved. Dr. Weeks cautioned that the previous 2mg standard was set for an 8-hour shift and the new legislation was 1mg for a 10-hour shift; he felt it needed further refining to accommodate the fact that miners work longer shifts, hence breathe more dust than previously. He also said that MSHA adds an error factor to measuring dust levels before issuing a citation for non-compliance, and that this causes flawed information as to the actual level of dust; had MSHA issued citations for actual measured dust concentration rather than using its Criterion Threshold Value, it would have issued 36% more citations in 2003. Dr. Weeks then spoke in support of PDM’s, saying they were far more efficient than using the pump and filter method to collect dust samples in terms of time and money. He said that using the PDM method would make it “entirely more feasible for mine operators to reduce exposure to below the proposed 1mg.

Mike Wright was the last to testify. He spoke of the need to have the two bills encompass all miners, not just coal miners. He wanted the legislation to include metal/non-metal mining, and he gave examples of deaths in these mining operations. Mr. Wright said that coal miners account for 1/3 of all miners, 73,000 of 222,000. He made some suggestions for fine-tuning the bills: extend the provisions of the MINER Act and S-MINER Act to include metal/non-metal mines; require SCSR’s in most underground metal/non-metal mines, mentioning that the impetus for the devices was a disaster in a silver mine in 1972 that killed 91 miners by carbon monoxide poisoning; the CSB is needed because MSHA typically does not do accident investigations beyond what is needed for compliance, so the CSB should conduct independent investigations in cases of chemical safety matters in mining; have more definitive regulations for levels of air contaminants so that “lowest feasible level” has the specificity needed to create an enforceable regulation; and make a slight modification to H.R. 2769 that would give MSHA the discretion to modify the PEL through notice and comment rulemaking if the Agency determines that the NIOSH REL is not feasible in mining. Mr. Wright did support section 4 on asbestos with one addition: that MSHA have the freedom to add other asbestiform minerals to the standard or work practices that are applicable to mining. He fully supported Section 5 which requires MSHA to go back to the October 2000 Interim Final Rule on hazard communication rather than the June 2002 Final Rule.

Rep. Woolsey opened the questions with a request to Mr. Stricklin that he work with the subcommittee staff in the coming week and have prepared questions about what parts of the bill he finds problematic. She then asked Dr. Weeks if miners should have mandatory regular x-rays to assess the health/damage to their lungs; Dr. Weeks and Mr. Wright both cautioned against any mandatory testing until it can be absolutely assured that confidentiality will not be breached, which has been a major problem for miners up to the present.

Rep. Wilson started his comment time stating that it was wrong not to have the industry represented, then asked Mr. Stricklin what about the new bills weakens MSHA’s effectiveness. Mr. Stricklin said he felt the immediate notification section was less than what was in place already. Rep. Wilson than asked if belt air improves safety, and Mr. Stricklin said he felt he had to wait until Dr. Weeks’ investigation was finished at the end of the year, but that he had never heard of belt air being responsible for any deaths. Rep. Wilson then asked about the testing of SCSR’s and how many would have to be tested a year. Mr. Stricklin said that there would be approximately 200,000 devices in use meaning 20,000 would have to be tested each year, and that there is not enough personnel in MSHA or NIOSH to do that- about 200 are tested a year today.

Rep. Hare commented that he found it galling that Rep. Kline would say that non-unionized miners were not represented by the union folks testifying today when he (Rep. Hare) felt that the safety and health needs of unionized miners were the same as non-unionized. He asked Mr. O’Dell if there was any valid reason to use belt air; Mr. O’Dell said that through his experience there was not valid reason and that it came about due to mine operators’ mismanagement. Rep. Hare then asked Mr. Wright why he felt the two bills did not go far enough; Mr. Wright said that he wanted metal/non-metal miners protected from belt fires with the use of non-flammable belts also, as 45% of fires occur in metal/non-metal mines and burning rubber in a confined space is not a good thing. He then asked Mr. Stricklin why he thought black lung was on the rise; Mr. Stricklin replied that it was a complex question, but that the amount of production had increased and the length work day had increased.

Rep. Kline also complained that key stakeholders were missing from the testimony. He then asked Mr. Stricklin why he felt hardened electronic tracking/communications were a setback; Mr. Stricklin said he was afraid that if operators put in hardened communication systems it would keep technology from advancing when the MINER Act already specified wireless by 2009- hardened communications would take away from the quality of communications. Rep. Kline then asked Mr. Stricklin to comment on the CSB doing investigations; Mr. Stricklin said that CSB does not have the expertise that MSHA has, that MSHA inspectors are professionals, and if the CSB report was different than MSHA’s that would pose a whole host of problems.

Rep. Bishop asked Mr. Stricklin why stronger regulation would be a disincentive to mine operators and voluntary compliance would be more effective; Mr. Stricklin said that voluntary “makes our job easier.” Rep. Bishop then asked the other witnesses if there were any concerns that Mr. Stricklin had voiced that they agreed or disagreed with; Mr. O’Dell said that a hardened communications system would be better than what they had today, which amounted just about to 2 cans on a wire between above and below ground- why wait for wireless in 2009 when they can improve it right now with hard lines.

Rep. Price also gave the familiar refrain: no key stakeholders present and that it made for a flawed process. He asked Mr. O’Dell how he knew that industry felt the way he said they did, didn’t Mr. O’Dell think the industry should be testifying today; Mr. O’Dell laughed and said “I cannot comment on that, I am just a guest here.” Rep. Price then asked Mr. Wright what additional steps had MSHA taken since the passage of the Miner Act; Mr. Wright replied “Not much.” Rep. Price then asked Mr. Wright if he thought it was a travesty of justice not to have the industry there; Rep. Payne jumped in and said “you read off a whole list of things MSHA has supposedly done in the past year and yet we still have 24 deaths to date- shouldn’t we have no deaths?” Rep, Payne continued saying that all the industry people have testified at previous hearings, they certainly did not come to testify about airplanes.

Rep. Payne asked Mr. O’Dell about the implementation of the ombudsperson and whether he felt if would be effective; Mr. O’Dell said that union mines have more of a voice, but intimidation is a huge factor for any miner, anonymity has been breached over and over again. Rep. Payne asked Dr. Weeks if there were presently any effective ways to reduce dust levels; Dr. Weeks said dust levels can be reduced many ways, such as water sprays, that there are in existence controls that say we can do better. Mr. Wright responded saying better ventilation, water sprays on drills help, and that a lot of operators do it well, but the problem with voluntary is that some do it well and many others do not. Dr. Weeks brought to attention the many cases of silicosis in surface miners and how that needs controls also. Rep. Payne then asked about international organizations that are working on these problems, and the ILO and ISO were both named, and NIOSH had implemented the ISO respirable air standards.

Rep. Bishop named several mine organizations that had submitted letters for the record, to let the Republicans know that the industry was definitely getting their say in this matter. Rep. Wilson said in his closing remarks again that the industry did not get a chance to testify on these bills and it was not right. Ms. Woolsey closed with reminding Rep. Wilson that they had testified many times before the full committee and we were well aware of their stand on these issues of safety; she said “delay for delay’s sake is unacceptable.”

Senate and House Appropriations Views of OSHA and NIOSH

If it’s Summer, it’s appropriations high season in DC. Warning: there’s too much information below for any good person to spend time reading, but it is interesting to see the details. What’s included in these reports strongly indicates the politics at play at shaping the agencies and their work. For NIOSH – in both the Senate and House appropriations bills for Labor, HHS, and Education -- the message about its effectiveness has been received, and it has fans. For OSHA, its efforts on pandemic influenza, PPE and standards development get a lot of attention. Increased enforcement resources are provided. CSB’s recommendations to OSHA on oil refineries get a blessing. And the Senate appropriators pile on with a directive on ergo, directing OSHA to provide within 30 days after enactment a report to the Committee detailing the specific steps it will take to complete its comprehensive approach to ergo. All the information is accessible at http://thomas.loc.gov/home/approp/app08.html

Senate Report on OSHA

The Committee recommends $498,445,000 for this account. The comparable fiscal year 2007 amount is $486,925,000 and the budget request includes $490,277,000 for authorized activities. This agency is responsible for enforcing the Occupational Safety and Health Act of 1970 in the Nation's workplaces.

In addition, the Committee has included language to allow OSHA to retain up to $750,000 per fiscal year of training institute course tuition fees to be utilized for occupational safety and health training and education grants in the private sector….

The Committee is concerned that OSHA's standard setting and enforcement capabilities have been diminished over the past several years, due in part to declining budgets. The number of employees covered by inspections has fallen from almost 2.1 million in fiscal year 2000 to just more than 1.2 million in fiscal year 2006, a decline of more than 70 percent. The Committee recommendation takes a first step toward reversing that decline by providing an increase of more than $11,000,000 for Federal enforcement. The Committee directs a portion of these additional funds to address the recommendations of the Chemical Safety and Hazard Investigation Board's related to the March 2005 Texas City refinery explosion, including: conducting comprehensive inspection of facilities at the greatest risk of catastrophic accident and hiring or developing new, specialized inspectors capable to enforce the process safety management standard. Funds not used for this purpose shall be directed toward rebuilding the overall enforcement capacity at OSHA through the hiring of new inspectors. Not later than 30 days after the date of enactment of this act, the Committee directs OSHA to provide a report on its plan for meeting the Board's recommendations and the Committee's intent in providing these additional funds, and quarterly reports thereafter on progress toward implementing this plan.

The Committee also is concerned about the pace of occupational safety and health standards setting at OSHA, which has essentially drawn to a halt despite planned timetables announced in its regulatory agendas. In a number of areas, including the personal protective equipment standard which has been in development for 8 years, and the diacetyl standard, OSHA has not met its own deadlines for developing and issuing occupational health and safety standards. The Committee directs OSHA to provide a detailed timetable for planned actions on occupational health and safety standards not later than 30 days after enactment of this act and quarterly reports thereafter on progress on implementing the plan, including an explanation of any deviations from the initial timetable provided to the Committee.

Over the past 2 years, the Committee has provided $5,620,000,000 to prepare for the outbreak of an influenza pandemic and includes an additional $888,000,000 in this bill for that purpose. However, despite this sense of urgency for the Committee and other executive branch agencies, the Committee notes the Department believes that in order to issue an emergency standard to protect the health and safety of healthcare workers and emergency responders the United States needs to be in the midst of an influenza pandemic. The Committee is troubled by this interpretation and urges OSHA to reconsider the standard-setting actions it can take on an emergency or expedited basis related to an influenza pandemic. The Committee requests a letter report not later than July 31, 2007 detailing the Department's reconsideration of this issue and a plan for developing and issuing a standard on this issue.

The Committee is dissatisfied with the lack of progress on OSHA's regulation concerning Employer Payment for Personal Protective Equipment, the public comment period for which ended over 7 years ago. This is particularly important for Hispanic workers and immigrant workers who experience a disproportionate and growing number of injuries and fatalities. The Committee expects the Secretary to issue a final standard before November 30, 2007 that is at least as protective as the one promulgated in 1999.

The Committee notes that, in 2005, there were 375,540 serious ergonomic injuries resulting in time off the job reported by employers. The Committee is concerned that the Department has failed to make sufficient progress on its comprehensive plan to address ergonomic injuries, which included industry-targeted guidelines and tough enforcement measures. Despite this commitment, the Department only issued one ergonomic citation over the past 2 years and 3 of 16 guidelines. Since 2004, the Department has almost abandoned any action on its announced plan. The Committee directs OSHA to provide not later than 30 days after the date of enactment of this act a report to the Committee detailing the specific steps it will take to complete the issuance of the remaining guidelines and actions to practice the tough enforcement measures. This report should include a timeframe by which all 16 guidelines will be issued and for the implementation of increased enforcement on this issuue.

The Committee believes that OSHA's worker safety and health training and education programs, including the grant program that supports such training, are a critical part of a comprehensive approach to worker protection. The Committee is concerned that OSHA has again cut funding to help establish ongoing worker safety and health training programs and has therefore restored the Susan Harwood training grant program to $10,116,000. Bill language specifies that no less than $3,200,000 shall be used to maintain the existing institutional competency building training grants, provided that grantees demonstrate satisfactory performance.

House Report on OSHA

House Report 110-231 - DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATIONS BILL, 2008

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

SALARIES AND EXPENSES

The Committee recommends $503,516,000 for the Occupational Safety and Health Administration (OSHA), which is $16,591,000 above the fiscal year 2007 level and $13,239,000 above the budget request. This agency is responsible for enforcing the Occupational Safety and Health Act of 1970 in the nation's workplaces.

For Federal enforcement, the bill provides $190,128,000, an increase of $13,155,000 over fiscal year 2007. The Committee is concerned that the number of full time equivalents (FTE) dedicated to Federal enforcement has declined by 141, or 8.4 percent, from 1,683 in fiscal year 2001 to 1,542 in fiscal year 2007. No additional enforcement positions were proposed in the budget request. While it is not possible under funding constraints to totally erase the deficit of enforcement positions in one year, the Committee recommends $7,082,000 above the budget request to begin to restore the enforcement capacity of OSHA over the next several years. These funds will support an additional 47 positions in federal enforcement. The Committee intends that a portion of these positions be used to reestablish the capacity to conduct comprehensive process safety management (PSM) inspections. The Committee takes note of the Chemical Safety Board recommendations following the BP Texas City disaster and believes that OSHA needs to pursue comprehensive enforcement of its process safety management standard. The additional enforcement positions not dedicated to PSM should be used to begin to rebuild and enhance OSHA's overall enforcement capacity. The Committee urges OSHA to give special emphasis in its hiring and promotion activities to the number of bilingual inspectors. This action would allow OSHA to better address the disproportionately high number of injury and fatalities among immigrant workers. The Committee directs that OSHA provide reports to the House and Senate Committees on Appropriations not later than 90 days after enactment, and quarterly thereafter on OSHA's progress in filling these additional enforcement positions.

The Committee bill provides $75,566,000 for Federal compliance assistance, an increase of $2,907,000 over fiscal year 2007 and a decrease of $4,041,000 below the request, which targeted increased funds for the voluntary protection program. The Committee agrees with a March 2004 GAO report that recommended that OSHA's voluntary compliance strategies should not be expanded until they are fully evaluated. This evaluation is not possible until OSHA collects complete, comparable data that would enable a comparison of the relative effectiveness of these approaches. Therefore, the Committee directs OSHA to utilize a portion of the increased funds for federal compliance assistance to develop methodologies and to collect the data necessary for a full evaluation of the effectiveness of voluntary compliance programs.

The Committee is concerned about OSHA's lack of progress in developing and issuing important safety and health standards and the repeated failures to meet the agency's timetables for action announced in the semi-annual regulatory agendas. Thus, the Committee directs the Secretary to provide to the House and Senate Appropriations Committees detailed timetables for the development and issuance of occupational safety and health standards on beryllium, silica, cranes and derricks, confined space entry in construction, and hazard communication global harmonization. Each of these standards has appeared on the Department's regulatory agenda over a period of years, yet deadlines have consistently slipped. In order to better understand the reasons for these delays, the reports, which shall be provided within 90 days of the enactment of this Act with updates provided every 90 days thereafter, shall include an explanation of the reasons for any delays in meeting the projected timetables for action.

The Committee is dissatisfied with OSHA's activities on ergonomics and the prevention of musculoskeletal disorders, which continue to be the leading cause of workplace injuries. The agency's comprehensive plan on ergonomics announced in 2002 has resulted in the issuance of only three industry guidelines, the last one issued in 2004, and only 17 general duty citations, the last one issued in 2005. The Committee directs the agency to enhance its activities by developing guidelines for the 13 other industries recommended by the national advisory committee on ergonomics in 2004, and to submit a timetable to the Committee specifying when these additional guidelines will be completed. The Committee expects the agency to step up enforcement on ergonomic hazards through the use of the general duty clause, as outlined in the Secretary of Labor's 2002 ergonomics plan, and to conduct follow-up inspections to determine if ergonomic hazards have been abated.

For the past four years, the Committee has included language in its report expressing disappointment and concern about the Department's lack of progress in completing rulemaking on the issue of payment for personal protective equipment (PPE), and urging OSHA to act expeditiously to issue the final rule. The Committee pointed out that the rule is particularly important for Hispanic workers who disproportionately work in low-wage hazardous jobs, and have a much higher fatality rate than other groups of workers. However, no action was taken and OSHA repeatedly missed the timetable for action set in its regulatory agenda. In response to a lawsuit filed in early 2007, OSHA has now announced that it will issue a final payment for PPE rule by the end of November 2007. However, OSHA has not committed to issue a final rule that maintains its longstanding policy that employers have the responsibility to pay for all safety equipment, with few exceptions. Given the Department of Labor's repeated failure to meet its announced deadlines, the bill includes a provision to ensure that these protections will finally be put in place.

The Committee is dissatisfied with OSHA's lack of action to ensure that health care workers and emergency responders will be adequately protected in the event of an influenza pandemic. The Department of Labor has denied a petition for an OSHA emergency standard on grounds that a pandemic has not yet occurred. Moreover, the guidelines issued by the Department in May fail to recognize the urgency of the problem or the responsibility of employers to provide adequate protections for health care workers. In addition, reliance on guidelines instead of standards eliminates the opportunity for public review and comment. The Committee believes that it is important to plan and put protections in place before a pandemic occurs. The Committee asks that the Department reconsider the issuance of an emergency standard. The Committee directs the Department to, at a minimum, develop a permanent standard on an expedited basis to ensure that plans and measures to protect health care workers and responders from an outbreak of pandemic influenza are in place as soon as possible. The Committee directs that OSHA submit a report to the House and Senate Committees on Appropriations within 90 days of enactment, and quarterly thereafter, detailing its anticipated timeline for issuing a standard on an emergency or expedited basis, and its progress in meeting that timeline.

The Committee also believes that the OSHA response to serious health hazards posed by exposure to the chemical diacetyl, a butter flavoring agent used in microwave popcorn and other foods is inadequate. Despite urgent warnings from NIOSH that exposure to diacetyl poses a risk of a rare and fatal lung disease (bronchiolitis obliterans) and should be controlled, and a growing number of documented cases of the disease, OSHA has failed to act. There has been no response to a petition for an emergency standard filed last year by unions and health scientists. The Committee believes this matter warrants an emergency standard, but at a minimum, OSHA should develop a permanent standard on an expedited basis. Only recently has OSHA announced it will initiate a special emphasis program, but only for those establishments that manufacture butter-flavored microwave popcorn. The Committee understands that OSHA is also in the process of finalizing a national emphasis program that will expand enforcement activities beyond microwave popcorn plants to other food manufacturing and flavoring plants where diacetyl is used or produced, and that both emphasis programs will apply existing standards (including personal protective equipment, respiratory protection, and hazard communication), as well as OSHA's general duty authority, to require that exposures to this very toxic agent be controlled. The Committee directs that OSHA submit a report to the House and Senate Committees on Appropriations within 90 days of enactment, and quarterly thereafter, detailing its anticipated timeline for issuing a diacetyl standard on an emergency or expedited basis, and its progress in meeting that timeline. The Committee also requests that a separate report be provided no later than March 1, 2008, on the special and national emphasis programs, detailing the number of establishments inspected, citations issued, and follow-up activities taken to ensure that hazardous conditions are abated.

The bill includes $10,116,000 for the Susan Harwood training grant program, which is the same as the fiscal 2007 level. This program was not included in the budget request. The Committee is concerned that OSHA has again proposed elimination of this program, which supports worker safety and health training and education programs that are an important component of a comprehensive approach to worker protection. Within these funds, the bill provides $3,200,000 to extend funding for the institutional competency building training grants which commenced in September 2000 for program activities for the October 1, 2007, to September 30, 2008, period, provided that the grantees demonstrate satisfactory performance.

The May 12, 2007 incident involving a U.S. citizen with drug-resistant tuberculosis traveling via commercial airline demonstrates how serious this disease can be. Therefore, the bill does not include prior language prohibiting OSHA from enforcing the general industry respiratory protection standard for the annual fit testing of respirators for occupational exposure to tuberculosis (TB). OSHA's respiratory protection standard requires that respirators be provided to protect workers exposed to chemical and biological hazards. The Committee sees no reason to treat exposure to TB differently than exposure to all other hazards subject to OSHA's respirator standard. Annual fit testing of respirators for health care workers exposed to tuberculosis will also help protect these workers from other airborne infectious diseases. The Centers for Disease Control and Prevention (CDC) issued guidelines for preventing the transmission of tuberculosis in health care settings in December 2005. Those guidelines recommend that after a risk assessment is conducted to validate the need for respiratory protection, that fit testing should be performed during the initial respiratory protection program training, and that the period for testing thereafter be in accordance with the relevant Federal, State and local regulations. The Committee believes that it is appropriate that OSHA's respiratory protection standard apply to occupational exposure to tuberculosis and that the agency should not be further prevented from enforcing the annual fit testing requirements to address occupational exposure to tuberculosis in health care settings.

Senate Report on NIOSH

Senate Report 110-107 - DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATION BILL, 2008

OCCUPATIONAL SAFETY AND HEALTH

The Committee recommends $272,397,000 for occupational safety and health programs. The fiscal year 2007 level was $254,099,000 and the budget request for fiscal year 2008 was $252,998,000. The Committee recommendation includes $92,071,000 in transfers available under section 241 of the Public Health Service Act. Sufficient funding has been provided to maintain staffing levels at the Morgantown facility and increase research funding at that facility.

The CDC's National Institute for Occupational Safety and Health [NIOSH] is the only Federal agency responsible for conducting research and making recommendations for the prevention of work-related illness and injury. The NIOSH mission spans the spectrum of activities necessary for the prevention of work-related illness, injury, disability, and death by gathering information, conducting scientific biomedical research (both applied and basic), and translating the knowledge gained into products and services that impact workers in settings from corporate offices to construction sites to coal mines. With the exceptions noted below, all other activities are funded at the level of the fiscal year 2007 operating plan.

Education and Research Centers- The Committee recognizes the important role Education and Research Centers [ERCs] play in preventive health research and the training of occupational safety and health professionals, and includes an increase of $1,982,000 over the amount appropriated for ERCs in fiscal year 2007.

Farm Health and Safety- The Committee has included funding to continue the farm health and safety initiative. The Committee encourages NIOSH to give priority to grants to States and private organizations with a focus on disseminating and translating research for occupational safety and health.

Mine Safety Technology Research- The Committee has included $10,000,000 over the 2007 level for mine safety technology research, development, and testing. The Committee is pleased by the additional research being conducted into mine refuge chambers, emergency tracking, respiratory and communication devices in line with the MINER Act of 2006. The Committee is concerned that the focus on MINER Act deadlines may have inadvertently put other important mine safety research on hold, and expects that additional funding in fiscal year 2008 will be used to ensure that NIOSH's research agenda in areas such as dust monitoring, roof control and disaster prevention are not abandoned. The Committee directs NIOSH to expand the required progress reports on grantmaking and research findings to these related research goals.

The Committee is strongly supportive of the memorandum of understanding NIOSH has worked out with the U.S. Army surrounding communication devices and is eager to see NIOSH expand on this model of collaboration with other Agencies and industries. In particular, the Committee encourages NIOSH to investigate establishing an innovation challenge award similar to those given out by NASA and the Department of Defense to leverage private resources to tackle difficult technological problems.

Miners' Choice Health Screening Program- The Committee has provided an increase of $300,000 to further implement the Miners' Choice Health Screening Program in fiscal year 2008. This program was initiated to encourage all miners to obtain free and confidential chest x-rays to obtain more data on the prevalence of Coal Workers' Pneumonconiosis in support of development of new respirable coal dust rules. The Committee is strongly supportive of these efforts and urges NIOSH to work to improve this health screening program, thereby helping to protect the health and safety of our Nation's miners.

National Occupational Research Agenda- NIOSH provides national and international leadership to prevent work-related illness, injury, and death by gathering information, conducting scientific research, and translating the knowledge gained into products and services. The Committee is pleased with the progress NIOSH has made in consulting with partners and stakeholders across the country to examine and update the National Occupational Research Agenda for the coming decade. The Committee expects that this updated agenda will provide an important blueprint for conducting occupational research and examining the impact of stressful workplaces on psychological functioning.

The Committee recommendation includes $5,000,000 in increased funding for CDC's National Occupational Research Agenda [NORA]. The Committee believes that NORA is a critical scientific research program that protects employees and employers from the high personal and financial costs of worksite health and safety losses. Industries such as agriculture, construction, health care, and mining benefit from the scientific research supported by NORA. The program's research agenda focuses on prevention of disease and injury resulting from infectious diseases, cancer, asthma, hearing loss, musculoskeletal disorders, traumatic injuries, and allergic reactions, among others. The Committee continues to strongly support NORA and encourages expansion of its research program to cover additional causes of workplace health and safety problems.

National Mesothelioma Registry- The Committee has provided an increase of $100,000 for the continuation and expansion of a National Mesothelioma Registry to collect data regarding symptoms, pathology, evaluation, treatment, outcomes, and quality of life and a Tissue Bank to include the pre- and post-treatment blood (serum and blood cells) specimens as well as tissue specimens from biopsies and surgery.

National Personal Protective Technologies Laboratory- The Committee has provided $916,000 above the fiscal year 2007 level of funding for the NIOSH National Personal Protective Technologies Laboratory to expedite research and development in, and certification of, protective equipment, such as powered air purifying respirators, and combined self-contained breathing apparatus/escape sets.

Volcanic Emissions- The Committee strongly urges NIOSH to continue to study the impact of potentially toxic volcanic emissions. In particular, preexisting respiratory conditions such as asthma, chronic bronchitis, and emphysema seem to be particularly susceptible to the effects of sulfur dioxide. The acute and long-term impact that these emissions have on both the healthy and pre-disposed residents warrants further study. The Committee strongly advises a multi-disciplinary approach in studying the short-and long-term health effects of the volcanic emissions.

House Report on NIOSH

Law Office staffer Tina Stanczewski represented ASSE at the latest Small Business Labor Safety (OSHA/MSHA) Roundtable. OSHA, the U.S. Chamber of Commerce, Crowell & Mooring, LLP, and Gibson, Dunn & Crutcher, LLP had key officials present.

Jonathan L. Snare, Acting Solicitor, U.S. Department of Labor (DOL) and former Acting Administrator for OSHA presented information on behalf of the Solicitor’s office. Mr. Snare detailed the everyday responsibilities of his office that include serving as the general counsel for the DOL, developing standards and rules, and reviewing the appellate docket. The DOL is aggressively acting to complete the goals established under the current administration before the administration changes in January, 2009.

The DOL has been involved with several rules and standards including the electrical standard (FR 72:7135-7221), personal protective equipment (FR 64:15401-15441), the MSHA coal mine seal standard, and an updated publication on chromium. In addition, there will be an amended Notice of Proposed Rulemaking (NPRM) statement and new comment period for the OSHA explosives rule.

Mr. Snare discussed the site-specific targeting (SST) plan for refinery inspections. The inspections will begin inspecting every refinery in the United States starting in 2008. Letters have been sent to the refineries and OSHA expects state safety agencies to conduct inspections, thereby reducing the need for direct OSHA inspections. The inspections are a response to the British Petroleum accident in 2005. The California OSHA state office has already proposed an approach for the inspections and OSHA is evaluating the plan.

The DOL has appealed the Occupational Safety and Health Review Commission. Secretary of Labor v. Summit Contractors, Inc., OSHRC No. 03-1622 (April 27, 2007). decision to the U.S. Court of Appeals for the 8th Circuit. The case concerned the implementation of OSHA’s “Multi-Employer Citation Policy” whereby general contractors can be given citations for subcontractors’ violating an OSHA rule. The current Multi-Employer Citation Policy is contained in OSHA's Field Inspection Reference Manual, CPL 2.103. The Commission found OSHA’s implementation of the rule inconsistent.

During the question and answer period, a representative from the Construction Industry voiced concern over discussions within OSHA on child labor laws. The changes would affect the 300,000 minors that the construction industry offers training, apprenticeship and vocations training too every year. Many of the programs would be eliminated if OSHA implements a rule that is reflective of the current discussions. Mr. Snare did not have a comment concerning the topic.

The next speaker was Paula O. White, Director, Directorate of Cooperative and State Programs, OSHA and she discussed OSHA’s cooperative and state programs. Ms. White focused the discussion on the four cooperative programs that fulfill the outreach prong of the Secretary of Labor’s four-prong approach to safety: guidelines, outreach, enforcement, and research. The four programs include Alliance, Partnerships, Safety Health Achievement Recognition Program (SHARP), and the Voluntary Protection Program (VPP).

Ms. White challenged all small businesses to join these cooperative programs and offer data on successes to OSHA. Although there is concrete data reflecting the benefits of cooperative programs, the General Accounting Office (GAO) and opponents of the programs often require more data that proves cooperative programs increase safety and supplement enforcement efforts. There continues to be internal opposition to cooperative programs. One Roundtable attendee suggested that businesses are opposed to cooperative programs because once the business provides OSHA with data, OSHA may institute enforcement actions. Ms. White responded by stating many companies succeed with the cooperative programs and the ones who are fearful of enforcement by participating are within the minority.

The next speaker Marc Freedman, Director, Labor Law Policy, U.S. Chamber of Commerce provided updates on pending legislation related to Diacetyl, the substance related to “Popcorn Workers’ Lung” disease. HR 2693, scheduled to be heard next week, requires OSHA to issue a standard regulating the exposure of employees to Diacetyl, a substance used to provide butter flavoring in foods, such as microwave popcorn. The disease produces bronchial problems within victims. There is significant opposition to the bill in the business community because (1) it requires OSHA to set a permissible exposure limit (PEL) within two years and opponents believe there is insufficient data to make the determination; and (2) the bill bypasses many requirements of the Administrative Procedures Act (APA) that requires federal agencies to conduct hearings and public comment periods for proposed legislation. The bill requires an interim final regulation within 90 days of enactment and the final regulation for the PEL level within two years. Opponents of the bill include the Associated Builders of America, National Association of Home Builders, Mason Contractors Association of America, Printing Industries of America, National Association of Convenience Stores, National Association of Manufactures, and the U.S. Chamber of Commerce. OSHA will release a bulletin about Diacytel this year.

The next speaker, Ed Green, Esq., from Crowell & Mooring LLC, summarized the pending legislation on mine safety. Mr. Green focused on section three of House Bill 2769, the Miner Health Enhancement Act of 2007. In 1977 the Mine Safety and Health Act required MSHA to adopt PEL limits. Throughout the years, many limits have not been adopted or updated by MSHA, especially coal dust and silica. Congress proposed the bill in response to the lack of updates and need for adoption. The bill requires MSHA to adopt the current recommended exposure limits developed by the National Institute for Occupational Safety and Health (NIOSH) 30 days after NIOSH sends them to the Secretary of Labor. Both NIOSH and MSHA would have to repeat the updates and process annually. If updated PELs become available outside of the defined cycle for adoption, NIOSH can send them to MSHA for adoption. The opponents’ concern is similar to the Diacytel problem: Congress is bypassing the APA and eliminating the rulemaking procedures.

The last speaker, Michael Billitz, discussed the Adam Finkel v. DOL case where a Freedom of Information Act (FOIA) request was made concerning employer sampling data of toxic substances. Adam Finkel, a former DOL chief regulator and regional administrator for OSHA, made the FOIA initial request in 2005 when he requested the results of beryllium tests on OSHA inspectors. Beryllium is a lightweight metal and may cause lung disease. The recent request, upheld by the federal court, asked for the entire OSHA database on toxic exposures, including how much was found, the company where it was found, and the code number for the inspector who found it. The database contains over two million analyses since 1979.

The DOL opposed the request under three of the FOIA exemptions: (1) privileged information (2) hinders law enforcement (3) trade secrets and confidential communications. However, the federal court ordered the DOL to comply with the FOIA request. The DOL requested clarification on the decision before the DOL releases the data and the clarification is pending. By disclosing the information, the DOL fears that inspector’s privacy may be invaded, media coverage may harm companies whose levels of toxins are high, and companies may adjust future data given to the DOL to alleviate future exposures through FOIA requests. Mr. Billitz noted that no companies intervened on the lawsuit and the impact of this decision may have far-reaching affects. The court may have considered trade secret and confidential communication arguments from companies more favorably.

Declining Traffic Deaths Lead to Lowest Highway Fatality Rate Ever Recorded, U.S. Transportation Secretary Mary E. Peters Announces

The number of people who died on the nation’s roads fell last year, leading to the lowest highway fatality rate ever recorded and the largest drop in total deaths in 15 years, U.S. Transportation Secretary Mary E. Peters announced today.

“Tough safety requirements and new technologies are helping make our vehicles safer and our roads less deadly,” Secretary Peters said. “But we all must do more when so many are killed or seriously hurt on our roads every day.”

In 2006, 42,642 people died in traffic crashes, a drop of 868 deaths compared to 2005. This two percent decline in traffic deaths contributed to the historic low fatality rate of 1.42 per 100 million vehicle miles traveled (VMT), Secretary Peters said.

Most significantly, fatalities of occupants of passenger vehicles—cars, SUVs, vans and pickups—continued a steady decline to 30,521, the lowest annual total since 1993, Secretary Peters said. Injuries were also down in 2006, with passenger car injuries declining by 6.2 percent and large truck injuries falling by 15 percent, she said.

Secretary Peters cautioned that troubling trends continue in motorcycle and alcohol-related crashes. Alcohol-related fatalities rose slightly in 2006 over the previous year, while motorcycle deaths rose by 5.1 percent. This is the ninth year in a row the National Highway Traffic Safety Administration (NHTSA) has seen an increase in motorcycle deaths.

“Proper training, clothing, gear and, above all, helmet use are essential to reversing this deadly trend,” Secretary Peters said.

Drunk driving enforcement will continue to be a top priority for the Department, said NHTSA Administrator Nicole Nason, noting no improvement in last year’s alcohol-related fatalities numbers. In 2006, 15,121 fatalities involved a driver or motorcycle operator, pedestrian or cyclist who had a .08 or above BAC (blood alcohol concentration) compared to 15,102 in 2005, she said.

“There is a personal story behind these statistics and for every alcohol related fatality, the family left behind is shattered forever,” Administrator Nason said.

NHTSA collects crash statistics annually from the 50 states, the District of Columbia and Puerto Rico to produce reports on fatalities and injuries. This newly released report can be seen at http://www-nrd.nhtsa.dot.gov/Pubs/810791.PDF.

EPA Extends Compliance Dates for Concentrated Animal Feeding Operations

FMCSA Gives Guidance on CMV Accidents Involving Fires

EPA/Business MOU on Sustainability

EPA, U.S. Business Council Commit to Sustainable Green Projects in China, Other Parts of World, To Reduce Greenhouse Gases

(Chicago, July 31, 2007) To promote a healthy planet and the global economy, EPA and the U.S. Business Council for Sustainable Development (US BCSD) today signed a Memorandum of Understanding (MOU) to collaborate on international sustainable development projects in China and other parts of the globe.

The initial focus will be on China, where EPA and the BCSD will build on existing relationships with the China Business Council for Sustainable Development and the Chinese State Environmental Protection Agency. Specifically, the groups will collaborate in three areas:

-- Creating a sustainable strategy for cement production in China, the world’s leading producer;
-- Expanding use of clean technologies to convert waste to renewable energy, and
-- Implementing by-product synergy, a system that allows companies from one industrial sector to use their waste (by-products) as raw input materials for production in another sector. This simple idea has enormous potential for reducing waste and toxic emissions to air and water, as well as cutting costs.

"Promoting clean power solutions and clean energy innovations both domestically and internationally is an EPA commitment," said EPA Administrator Stephen L. Johnson. "Through today’s MOU signing, we're joining forces with the US BCSD to deliver an economically- and environmentally-brighter tomorrow."

Sustainable or "green" development not only protects the planet by using renewable fuel sources and less toxic chemicals, but is also proving to be very profitable for business. Green technology is creating new world-wide economic markets, reducing energy costs for consumers, and benefiting the environment by reducing greenhouse gas emissions and other pollutants.

Johnson and Sabrina Watkins, chairman of the US BCSD and environmental technology manager at ConocoPhillips, launched the initiative today in Chicago by signing a memorandum of understanding (MOU). The US BCSD is a non-profit business association and a partner organization of the World BCSD, a network of 180 companies from 30 countries.

The EPA has been a supporter of the US BCSD’s work in America for the past ten years, including its highly successful by-product synergy process, currently on display in Chicago. In this process, EPA's Region 5 Midwest Office, the City of Chicago, the State of Illinois and the Chicago Manufacturing Center are partnered with the BCSD on a synergy project that has reduced waste by more than 6,000 tons so far this year. The synergy process, which the parties plan to pursue in China, leads to the creation of new markets and resource efficiencies.

More information on sustainability programs at EPA: http://www.epa.gov/sustainability/

More information on the US BCSD: http://www.usbcsd.org

GAO Stuff

September 11: HHS Needs to Ensure the Availability of Health Screening and Monitoring for All Responders. GAO-07-892, July 23.

Senate and House Appropriations Views of OSHA and NIOSH

Senate Report on OSHA

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

SALARIES AND EXPENSES

House Report on OSHA

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

SALARIES AND EXPENSES

Senate Report on NIOSH

OCCUPATIONAL SAFETY AND HEALTH

House Report on NIOSH

OSHA Wants Comments on Standards’ Paperwork Requirements

TSA Lets on Lighters

NHTSA Says Motor Vehicle Deaths/Injuries Down

Declining Traffic Deaths Lead to Lowest Highway Fatality Rate Ever Recorded, U.S. Transportation Secretary Mary E. Peters Announces

EPA Extends Compliance Dates for Concentrated Animal Feeding Operations

FMCSA Gives Guidance on CMV Accidents Involving Fires

EPA/Business MOU on Sustainability

EPA, U.S. Business Council Commit to Sustainable Green Projects in China, Other Parts of World, To Reduce Greenhouse Gases

GAO Stuff

Appropriations, 2007	$486,925,000
Budget estimate, 2008	490,277,000
Committee recommendation	498,445,000