OVERSIGHT HEARINGS ON THE OCCUPATIONAL SAFETY AND HEALTH ACT Part 1 WEDNESDAY, APRIL 23, 1975 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON MANPOWER, COMPENSATION, AND HEALTH AND SAFETY OF THE COMMITTEE ON EDUCATION AND LABOR, Washington, D.C. The subcommittee met at 10 a.m., pursuant to recess, in room 2257, Rayburn Building, Hon. Dominick V. Daniels (chairman of the subcommittee) presiding. Members present: Representatives Daniels, Lehman, Risenhoover, Beard, and Smith. Staff present: Daniel Krivit, Counsel; Denniese Medlin, Clerk; Edith Baum, Minority Counsel. Mr. DANIELS. The subcommittee on Manpower, Compensation, and Health and Safety will come to order. This morning we will continue with our oversight hearings on OSHA, particularly with respect to onsite consultation. I am pleased to welcome this morning as our first witness Mr. Howard J. Schulte, Deputy Assistant Secretary of the Occupational Safety and Health Administration, Department of Labor. Mr. Schulte, welcome. STATEMENT OF HOWARD J. SCHULTE, DEPUTY ASSISTANT SECRETARY, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, ACCOMPANIED BY RICHARD WILSON, REGIONAL PROGRAMS DIVISION, AND BENJAMIN MINTZ, ASSOCIATE SOLICITOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION Mr. SCHULTE. Thank you, Mr. Chairman. Mr. Chairman, I have with me on my left Mr. Benjamin Mintz. He is our Associate Solicitor for OSHA. And on my right, Mr. Dick Wilson. He is Assistant in Charge of our Regional Programs Division of OSHA. I have a prepared statement, Mr. Chairman, that I would like to read. It is not very lengthy. With your permission. Mr. DANIELS. Mr. Secretary, you may proceed as you see fit. We may interrupt you to ask questions, but perhaps we will let the questions go to the end. Mr. SCHULTE. Thank you. 72-749-7619 Well, first I would like to thank you, Mr. Chairman, and the members of the subcommittee for the opportunity to appear today and discuss some of the programs sponsored by the Occupationa Safety and Health Administration, OSHA, to assist the Nation employers in creating a safe and healthful work environment. Vir tually since the inception of its enforcement program in 1971, OSHA has been aware of the need to provide advice and consultation to the employers required to comply with the Occupational Safety and Health Act of 1970. During the initial years of OSHA's endeavors, a clear need existed for general information regarding the act, its applicability, and the standards issued thereunder; OSHA's regional and area office per sonnel were used in conducting 1-day seminars at which the right and responsibilities of employers and employees were explained seminars now given by local counsels of the National Safety Counci under a 2-year contract with OSHA; courses for specific industries such as construction, were developed; and the Occupational Safet and Health Training Institute in Rosemont, Ill., held a limited num ber of courses for employers and employees-usually of 1 week duration. The training emphasis began to shift in 1972-73 to aid the de velopment and implementation of effective safety and health pro grams by employers. A "Guide to Voluntary Compliance" cours was offered to representatives of various industries. OSHA mad available several publications, including a General Industry Guid for Applying Safety and Health Standards, and the Subscription Service which reprinted all standards, regulations, and interpreta tions in easier-to-read print in looseleaf form. Also, OSHA, de veloped a booklet with answers to questions most often asked abou the general industry standards. The thrust of the private sector training is now shifting to specif types of workplace situations and hazards, although OSHA co tinues to provide the more basic training emphasized in previo years. Last year, OSHA published pocket-sized alphabetical diges of the basic general industry and construction standards. The diges summarize the rules and list in detail references to particular section in the regulations where the user may find the complete requirement More than 25,000 copies have been sold by GPO and another 100.00 have been given by OSHA field staff to employers on a single cop basis. These digests have been revised with a table of contents enable employers to readily locate standards where workplace te minology may cause confusion. In addition, standards for lon shoring and shipbuilding industries are being republished in book form. OSHA is actively involving sectors of the academic community training services. A contract with the American Industrial Hygie Association, for example, is providing industrial hygiene traini for small business employers. Working through five major unive sities, this program includes, without cost to the employer, semina in industrial health hazards, short courses, and walk-through surve of the workplace designed to identify potential health hazards a to evaluate their severity. The Nation's community and junior colleges are another potential source of occupational safety and health instruction. Using the facilities and personnel of these institutions, which are located throughout the country, would afford access to training for a large number of the Nation's employers. Currently, OSHA has contracted with 20 member colleges of the American Association for Community and Junior Colleges, and we hope to train some 2,000 employers and employees in 8- to 12-hour training sessions at each college, a total of about 40,000 employers and employees. In addition to these training efforts, OSHA has endeavored to carry out consultations with individual employers as to specific solutions for specific problems in specific workplaces. Each OSHA field office of which there are now 113-has been actively providing advice on the telephone or through personal visits by the employers to the office. In addition, OSHA personnel have appeared as speakers or panel members before hundreds of gatherings throughout the Nation attended by employers, and encouraged employers to make Use of this field office service. The Department's consultative efforts have been delivered away from the worksite of the requesting employer. This policy is based on the statutory provisions which mandates the citation of an employer upon the observation by the Secretary or his representative of a violation at the worksite. However, onsite consultation activities are permissible under State operations. In the case of those 25 States which have approved State Occupational safety and health plans, 21 provide onsite consultation. As of April 1, 1975, approximately 145 consultants were providing approximately 18,500 consultations per year. While State consultation programs are still in the development stage, generally, their effort reflects their considerable past experience in consulting with employers about occupational safety and health matters. A list of approved plan States with onsite consultations is attached to the written copy of my statement as appendix A. In addition, OSHA was authorized by the fiscal year 1975 appropriations measure to contract with States, pursuant to the contracting authority of section 7 (c) (1) of the act, to use $5 million to reimburse them for furnishing consultative visits at the establishments of requesting employers. These funds will be made available to reimburse the States without approved job safety and health plans at 50 percent of cost, since those States with approved plans already receive 50 percent funding for their plans, including any consulative services which may be a part of their programs. Fourteem States so far have shown an active interest in contracting for these services, out of the 20 or so nonplan States and jurisdictions. A list of these States is provided in appendix B. On January 15, 1975, a notice of proposed rulemaking was pubished in the "Federal Register" concerning regulations under ections 7(c) (1) and 21 (c) of the act, which set out policies and rocedures through which such jointly funded onsite consultative ervices may be furnished to employers by State personnel in nonplan States. We have considered all relevant comments submitted by inerested persons, and intend to issue these regulations in final form n the very near future. Generally, the final rules will probably require that to be eligibl to participate, a State will have to assure that its consultants hav adequate education and experience in occupational safety and healt and undertake appropriate training at the OSHA Training Insti tute. The number of consultants under terms of the agreement woul be determined, within OSHA's budgetary resources, by the employe demand in each State and other relevant factors. In those fer States under contract to us to carry out enforcement activities a well, a clear separation between enforcement staff and those per sonnel used for consultation would be required, just as is no required in those States carrying out both activities under Stat plans. The consultants would provide onsite services only upon em ployer request. In providing this assistance, priority would be give to small business employers, with further consideration of the ha ardous nature of the workplace. During the visit, we believe the consultant should explain which OSHA standards and regulation apply to the workplace, explain the technical language and applica tion of the standards when necessary, advise the employer if he i not in compliance, and, where feasible, and within his technical com petence, suggest means by which identified hazards can be abated In the case of potential health hazards which require laborator analysis, the consultant would also be required to advise the em ployer of available sources to determine if a hazard exists, such a State laboratories, insurance carriers, private consultants, or th regional officers of the National Institute for Occupational Safet and Health. In addition to the consultation and training efforts which I hav mentioned, OSHA is considering the feasibility of another approac which would assist employers in meeting their obligations under th act. Under this approach, employers would be required to conduc periodic self-inspection of their work establishments, pursuant t section 8(c) (1) of the act. OSHA is still in the process of creating the most effective deliver system for assisting employers in complying with the act. Our goa is to maximize the availability of potential delivery systems withou creating competing systems that waste precious dollars and huma resources. We are aware of the importance for both employer an employee of understanding this most vital and complex law. Ult mately, through one or a combination of the systems I have described we hope to produce the most effective means of assisting the Nation employers in creating safe and healthier workplaces. Thank you, sir. Mr. DANIELS. Thank you, Mr. Schulte. Mr. Schulte, this is a new law, and there has been a great dea of criticism of it, not only by large employers but small as wel One of the complaints most consistently lodged with this committe has been the failure of the Department of Labor to, upon reques of an employer, furnish onsite consultation and advice. The complaint principally was with regard to where that servic would be rendered. Many of the employers were requested to go t the area office, or to the principal OSHA office in the region, rathe than furnishing this service at the site of the employer. Now, the Department I understood refused to render onsite consultation and advice. Has there been a change of policy with regard to the Department of Labor? Mr. SCHULTE. No, sir. There has not been a change of policy. There are many ramifications to the law, and principally legal ones. I would like to ask counsel here to tell you about the problems that we see in rendering work-area-type consultation, visits, because we see some provisions in the law wherein it would be necessary for compliance people to issue citations if a hazard were observed during the visits we may make to a work area. For that reason, we have not rendered onsite consultation. Mr. DANIELS. Well, I am not talking about an employer who has already been visited by an enforcement officer. I am talking about an employer who is desirous of complying with the law and wishes to be advised, and he wishes to consult with the Department, so that he would be within the law rather than having violated it. Now, many of these employers are small, the vast majority of employers, I imagine about 85 percent. Mr. SCHULTE. Yes, sir. Mr. DANIELS. Eighty-five percent are small employers? Mr. DANIELS. And they do not have it within their means economically, financially, from a practical point or a business point of view, to leave their place of business to go to an area office which may be hundreds and hundreds of miles away. It might necessitate them being absent from their place of business for a day or two or more. Mr. SCHULTE. Yes, sir. Mr. DANIELS. Therefore, they felt that OSHA should furnish this service at their place of business. Now, can that be done? Do you feel the law as it presently exists is sufficiently broad enough, is there sufficient latitude to render that service? Mr. SCHULTE. I would like to request counsel to respond, because it is a legal question, sir. Mr. MINTZ. Mr. Chairman, as we have understood the concept of onsite consultation, it involves a representative of the Secretary going to the workplace of the employer, walking through the workplace, looking at the conditions of employment, and advising the employer as to the possible violations of the act that he has observed in that walkthrough. Our determination and legal interpretation of the act is that if a representative of the Secretary walks through a workplace and observes violation, he is required by section 9 of the act to issue appropriate citations and penalties. We feel that that interpretation of the law is supported strongly by policy considerations in the statutory scheme. Mr. DANIELS. What section of the law are you referring to? Mr. MINTZ. I am referring to section 9, which refers to entry into the workplace. Section 8, excuse me. Section 8, which refers to entry into the workplace, and section 9, which provides as follows: If upon inspection or investigation the Secretary or his authorized representative believes that an employer has violated a requirement of the Act, he shall with reasonable promptness issue a citation to the employer, |