Document NEBQgywqODqd8oxB1e26BDO1Q

TO: Distribution TGG: JCL: FGJ: AC: AJO: RF Interoffice Communication FROM: DATE: SUBJ: T. G. Grumbles August 26, 1991 OSHA REFORM LEGISLATION VIS1A Attached is a copy of a bill introduced by Senators Kennedy and Metzenbaum the first of this month. An SDA summaryof the bill is also attached. There is growing pressure to significantly revise the OSHA Act and this bill is a good example of the type of revisions that may occur. I'll keep you informed on the progress of this particular bill. T. G. Grumbles dlj Attachment Distribution: SAFETY DIRECTORS Bruce Trego-Aber, Brent White-Bait, George Williams-Blane, Matt Tonkovich-Hmd, K. L. Fogg-LCCP, R. V. Gantz-LCLAB, Mike LunsfordLCVCM, Chris Markerson-Okc, Greg Lipps-Premiere, R. B. MartinAustin, J. R. Drumwright, J. G. Farrier PLANT MANAGERS R. W. Seymour-Aber, L. R, Bauer-BaJ.t, G. D. Williams-Blane, J. Pavao-Hmd, J. Friend-LCCP, J. W.*$Wft:e-LCLAB, P. Carrico-LCVCM, H. D. Garrison-Okc, P. L. Foote-Prem, V. W. Weiss-Austin T. H. Huffman, R. D. Gamblin, L. L. Zimmerman VVV 000007539 GENERAL INFORMATION BULLETIN Editor. Mary P Kilcoyne August 14, 1991 FEDERAL LEGISLATION COMPREHENSIVE OCCUPATIONAL SAFETYAND HEALTH REFORM ACT BILLS TO TARGET "HIGH-RISK" WORKPLACES, IMPROVE HAZARD ABATEMENT PROCESSES & STRENGTHEN CRIMINAL PENALTIES INTRODUCED IN HOUSE & SENATE LEGISLATION'. S 1622 - Senators Kennedy & Metzenbaum - 8/1/91 HR 1360 - Representative Ford (D-Michigan), etal-8/1/91 The Comprehensive Occupational Safety and Health Reform Act (S 1622 and HR 3160) was introduced at a press conference by Senators Edward Kennedy (D-Massachusetts), Howard Metzenbaum (D-Ohio) and Representative William Ford (D-Michigan). Representative Joseph Gaydos (D-Pennsylvania) is one of the 18 other co-sponsors of HR 3160. Among the areas addressed in the legislation are employer and employee participation; standard setting; enforcement; expansion of coverage; research, training and recordkeeping; and state plans. DESCRIPTION: Employee's Role: The legislation would require employers to establish and maintain safety and health programs to reduce or eliminate hazards and prevent injuries and illnesses to employees. Employers with 11 or more employees would be required to establish safety and health committees comprised of equal numbers of employee and employer representatives. The joint committees would be authorized to review the employer's safety and health program, conduct inspections, and make advisory recommendations to the employer. Under the bill, employees would be able to seek Occupational Safety and Health Review Commission review of settlement agreements between employers and OSHA. VVV 000007540 ___________________________________ ____ _______ __________ (continued) THE SOAP AND DETERGENT ASSOCIATION 475 PARK AVENUE SOUTH NEW YORK, NY 10016 TEL(212} 725-1262 FAX:(212: 213-0685 G-12 -3- COVERAGE: STATUS: The bill would grant OSHA authority to fine an employer failing to take corrective action S10,000 to $50,000 per day. The legislation also would incorporate S 445 (Senator Metzenbaum, 2/20/91), which proposed to increase the maximum criminal penalty available under the act for willful violations that cause death and would authorize criminal penalties for willful violations that cause serious bodily harm. The bill would expand coverage of the act to federal, state and local government employees and to employees working in federal nuclear facilities under the jurisdiction of the Department of Energy. For industries regulated by other agencies, except for mining, the bill would allow OSHA to cede jurisdiction "only if OSHA certifies that the agency has and is enforcing a standard that is as effective as the applicable OSHA standard. State plans would be required to incorporate provisions "at least as effective" as those outlined in the bill. NIOSH would be charged with establishing a program to "identify and notify' employees who are at increased risk of suffering work-related injuries and illnesses." It also would be responsible for implementing a national surveillance program to identify and collect data on work-related injuries and illnesses. S 1622 - Referred to Committee on Labor & Human Resources HR 3160 - Referred to Committee on Education & Labor A copy of S 1622 is attached. VVV 000007541 August 1, 1991 CONGRESSIONAL RECORD -- SENATE S11833 The bill takes the GAO approach in stead. with one purpose In mind: to provide tough fiscal oversight. There is at least an appearance of a conflict of interest when an agency such as HUD regulates a GSE like Fannie Mae and, at the same time, may want that GSE to take certain actions. An Inde pendent agency does not have that on going relationship and can better con centrate on minimizing the risk to Federal taxpayers. At the same time, using a board format allows the regu lator to draw on the expertise of the Federal Reserve System, the Treasury Department, and the agencies with policy expertise. This bill is not perfect. There may be ways to toughen it even further, and I hope the Banking Committee will examine the bill with that pur pose in mind so that the Senate can vote on legislation with the toughest measures possible. GSE's perform critical public policy roles, but they also Impose very real and very serious financial risks on Federal taxpayers. I agree with Sena tor Kohl that, for once. Congress needs to fix a roof while the sun is shining--build a tough oversight pro gram. while our GSE's are enjoying good health. I commend Senator Kohl for his leadership in this area and for accom modating my concern for strong com pensation oversight at the GSE's. I urge my colleagues to join Senator Kohl. Senator Glenn, and myself in working for the passage of legislation this year to strengthen Federal con trol of our GSE's.* 3y Mr. KENNEDY (for himself and Mr. Mctzenbatjm): 3. 1622. A bill to amend the Occupa tional Safety and Health Act of 1970 to improve the provisions of such Act with respect to the health and safety of employees, and for other purposes; co the Committee on Labor and Human Resources. f'OUPaEHENSIVX OCCUPATIONAL SAPCTT AND WEALTH UPOBIf ACT Mr. President, 20 years ago. Con gress enacted the Occupational Safety and Health Act because an uncon scionable number of workers were being killed, injured or made ill as a result of workplace conditions. The act represented a promise by the Govern ment to millions of working men and women that we as a country were pre pared to take the steps necessary to "assure so far as possible" a safe and healthful workplace for every working American. Since the, significant strides have been made in reducing the rate of fa talities from workplace injuries. But more than 10.000 workers still die every year from injuries sustained on the job. and as many as 100,000 die of occupational disease. The percentage cf annual workdays lost because of workplace injuries has actually in creased since the early ?0's. The stark fact is that as a nation, we continue to hazards. Second, it would require joint pay for the goods we consume and the employer-employee safety and health services we use with the health and committees to be established at work the lives of the workers who produce sites with II or more employees. The them. As one of the sponsors of the 1970 legislation which created the Occupa tional Safety and Health Administra tion. I believed then and I continue to believe that a decent society should not tolerate that kind of human suf fering and tragedy. That Is why I am introducing today, with my distin guished colleague from Ohio, (Mr. MmoBAtncl the Comprehensive Oc cupational Safety and Health Reform Act to update and strengthen the 1970 law. When that law originally was en acted, it was a landmark measure--the first comprehensive, nationwide pro gram to prevent workplace injuries and Illnesses. But since that time. America has changed, and so have the Jobs that Americans do. We have also learned a great deal that we didn't know in 1970, about the nature and causes of occupational Injury and dis committees would have the authority to review the employer's injury and ill ness records. Investigate employee complaints of safety and health haz ards. conduct regular inspections of the workplace, and make advisory rec ommendations to correct hazards or alleviate unhealthy working condi tions. Two states--Oregon and Washing ton--already have statutes requiring workplace health and safety commit tees. They are required in several Ca nadian provinces, and in many Euro pean countries including Germany and Sweden. They also exist in various forms in many non-union and union firms in this country. California has recently enacted legislation requiring employers to have safety and health programs. The proposals are based on two im portant concepts: employee empower ease, and about what needs to be done ment and a workplace approach to oc to more effectively identify and ad cupational safety and health. They re dress workplace safety and health haz flect a reasonable and realistic ap ards. proach to the problems we face in The legislation we are introducing trying to improve workplace safety today is intended to address many of and health in an era of limited govern the weaknesses in the current law ment resources. which have been identified in studies Work-related injuries and illnesses by the General Accounting Office, the are not just a public health Issue; they Office of Technology Assessment, and are also an economic issue. A recent the Administrative Conference, and in study by the Rand Institute for Civil oversight hearings conducted by the Justice found that in 1989, work-relat Committee on Labor and Human Re ed injuries cost the nation $88 billion, sources in 1988. or nearly 2 percent of GNP-- $31 bil As described more fully in the sec- lion in medical and other direct costs, tion-by-section analysis, the bill in and a whopping $52 billion in lost cludes provisions to streamline and ex- work time. At a time when the na peettte the standard-setting process, to sequin better targeting ol limited re sources to high-risk workplaces. tpaed up and *--the. hasanL ahategsspti pnesas* to strengthen tion's health care system is in crisis, and when American business is under intense competitive pressure from abroad, those figures are cause for se criminal penalties for the most agr^ rious concern. gtous vlotariomi of the Act,- and.to Above -all, it is the human costs that expand coverage of the Act,to federate should give us pause, costs that are state and local govefflttent employee* measured not in numbers, but in shat Of particular significance are new tered families and broken lives--in provisions to shift the focus of the Act from one which relies on inspections and the threat of civil tinea to bring about compliance with workplace blood that is shed, bodies that are mangled, and lungs that are destroyed. With the introduction of this legisla tion, we take a major new step toward safety and health standards, to one fulfillment of the promise we made 20 which recognises that the objectives of years ago--of a safe and healthful the Act can never be fully achieved workpace for every working American. unless employers and employees take 1 urge my colleagues to cosponsor an active role in working cooperatively this legislation and 1 ask unanimous to Identify workplace hazards and take consent that a section-by-section anal corrective action before injuries or ill ysis and the text of the bill be printed nesses occur. in the Record. To encourage that kind of active in There being no objection, the mate volvement, our bill includes provisions rial was ordered to be printed in the that would significantly increase em Record, as follows: ployer and employee involvement in two ways. First, it would require employers to develop written safety and health pro S.1623 Be it enacted try the Senate and House cf Representstii'e* of the United States cf 'America in Conrres* assembled, grams Identifying and addressing safety and health hazards in the work place, and providing for employee edu cation and training regarding those SECTION 1. SHORT TITLE. This Act may be cited aa the ''Comprehen sive Occupational Safety and Health Reform Act". VVV 0000075*2 S 11834 CONGRESSIONAL RECORD -- SENATE August U 1991 SEC 2, FINDINGS AND PURPOSE. (a) Findings.--Congress finds that-- (1) during the past two decades progress has been made In reducing workplace fatali ties. Injuries and exposures to toxic sub stances througn efforts of the Federal agen cies. States, employers, employees and em ployee representatives; (2) despite the progress described In para graph (1). work-related Injuries, Illnesses and fatalities continue to occur at rates that are unacceptable and that Impose a substan tial burden upon employers, employees and the nation In terms of lost production, wage less, medical expenses, compensation pay ments and disability; (3) employers and employees are not suffi ciently involved In Joint efforts to identify and correct occupational safety and health hazards; (4-) employers and employees require better training to identify safety and health problems; (5) Federal agency standard-setting has not kept pace with knowledge about safety and health hazards; () enforcement of occupational safety and health standards has not been adequate to brill# about timely abatement of hazard ous condition.* or to deter future violation of occupational health and safety standards; (7) millions of American workers exposed to serious occupational safety and health hazards are excluded from full coverage under the Occupational Safety and Health Act of 1970; and <B) the lack cf accurate data and Informa tion on work related fatalities. Injuries and Illnesses has impeded efforts to prevent such fat.alu.ies. injuries and illnesses. (b> Purfose.--U is the purpose of this Act to-- (1) Increase '.ha Joint participation of em ployers end employees In Identifying and correcting occupational safety and health hazards, by requiring the establishment of employer safety arid health programs. Joint employer-employee safety and health com mittees. and training and education pro grams; (2) improve and expedite the setting of oc cupational safety and health standards; (3) strengthen Federal and State agency enforcement cf violations of safety and health standards: (4) assure that all employees are afforded full coverage and protection from safety and health hazards under the Occupational Safety and Health Act of 1970 or other Fed eral laws; end (5) Improve information and data on work related Injuries, illnesses and fatalities for purposes of ennoncing occupational safety and health. SSC. 2. REFERhMThS. Except as otherwise provided, whenever In this Act an amendment or repeal is ex pressed Ln terms of an amendment to. or i epeal of, a section or other provision, the : slerence shall be considered to be made to b. section or other provision of the Occupaficnal Safety and Health Act of 1070 <29 V.S.C. 651 et seq.). ~;tle I--safety and health programs r ~:r. 101. SAFETY AND HEALTH PROGRAMS. r.ectlon 27 ;29 U.S.C. 076) Is amended to road as follows: -f'i.r. 17. SAFETY ANTI HEALTH PROGRAMS. "'a) Establishment or Program.-- "l< Tm oefbt.au--Each employer shall, in t "cordance with this section, establish and c-vry out & &&fetv and health program to reduce or eliminate hazards and to prevent inmrlcs and illnesses to employees. "i 21 Modifications to safety and wxai.tw programs.--The Secretary may, pursuant to regulations promulgated under subsection ccxi). modify the application of the require ments of this section to classes of employera where the Secretary determines that, in light of the nature of the risks faced by the employees of such employera, such a modifi cation would not reduce the employees' safety and health protection. "(3) Worksites.--As used In this section and section 28, the term `worksite' means a single physical location where business Is conducted or where operations are per formed by employees of an employer. "(b) Requirements.--A safety and health I rogram established and carried out under subsection (a) shall be a written program that shall Include-- "(1) methods and procedures for identify ing, evaluating, and documenting safety and health hazards; "(2) methods and procedures for correct ing the safety and health hazards identified under paragraph (1 >; "(3) methods and procedures for Investi gating work-related fatalities, injuries and Illnesses; "(4) methods and procedures for providing occupational safety and health services, in cluding emergency response and first aid procedures; "(5) methods and procedures for employee participation In the implementation of. the safety and health program, including par ticipation through any safety and health committee established under section 28; "(8) methods and procedures for respond ing to the recommendations of the safety and health committee, where applicable; "(7) methods and procedures for providing safety and health training and education to employees and to members of any safety and health committee established under section 28; "(8> the designation of a representative of the employer who has the qualifications and responsibility to identify safety and health hazards and the authority to initiate corrective action where appropriate; "(9> ln the case of a worksite where em ployees of two or more employers work, pro cedures for each employer to protect em ployees at the worksite from hazards under the employer's control. Including procedures to provide Information on safety and health hazards to other employera and employees at the worksite; and "(10) such other provisions as the Secre tary requires to effectuate the purposes of the Act. "(c) Regulations on Employes Safety amp Health Programs.-- __ "(1) General recummhs.-- "(A) Establishment.--Not later than 1 year after the effective date of this section, the Secretary shall promulgate final regula tions concerning the establishment and im plementation of employer safety and health programs under this section. "(B) Training anp education.--Regula tions promulgated under subparagraph (A) shall include provisions for the training and education of employees, and of safety and health committee members, as required under subsection <bX6). Such regulations shall-- "(1) provide for the training and education of employees. Including safety and health committee members, in a manner that Is readily understandable by such employees, concerning safety and health hazards, con trol measures, the employer's safety and health program, employee rights and appli cable laws and regulations; "(11) provide for the training and educa tion of safety and health committee, con cerning methods and procedures for hazard recognition and control, the conduct of worksite safety and health Inspections, the rights of the safety and health committee. and concerning other information necessary to enable such members to cur.-y out the ac tivities of the committee under section 28; * "(111) require that training and education be provided to employees at the time of em ployment and to safety and health commit tee members at the time of selection: and "(lv) require that refresher training be provided on at least an annual basis and that additional training be provided to em ployees and to safety and health committee members when there are changes in condi tions or operations that may expose employ ees to new or different safety or health haz ards or when there ore changes in safety and health regulations or standards under this Act that apply to the employer. "(2) No loss or pat.--The time during which employees are participating in train ing and education activities under this sub section shall be considered as hours worked fur purposes of wages, benefits, and ether terms and conditions of employment. Such training and education shall be provided by an employer at no cost to the employees cf the employer.", TITLE II--SAFETY AND HEALTH COMMIT TEES AND EMPLOYES SAFETY' AM) HEALTH REPRESENTATIVES SEC Ml. SAFETY AND HEALTH COMMITTEES AND EMPLOYES SAFETY AND HEALTH REPRESENTATIVES. (a) In General.--Section 28 is amended to read as follows: "SEC 28. SAFETY AND HEALTH COMMITTEES AND EMPLOYEE SAFETY AND HEALTH REPRESENTATIVES. "(a) Rbqttuixmxnt.--Each employer of not leas than 11 employees shall provide for the establishment of safety end health commit tees and the selection of employee safety and health representatives in accordance with this section. "(b) Safety and Health Committees.-- "(1) In aenteral--Each employer covered by this section shall establish a safety and health committee at each worksite cf the employer, except that the Secretary may, by regulation, modify the application of this paragraph to-- "(A) an employer whose employees do not primarily report to or work at a fixed loca tion; "(B) works;:*? at which leas than eleven employees of a covered employer are em ployed; or "(C) worksites wh.-re employees of more than one employer are employed. Each employer required to establish & safety and health committee under this sec tion shall, pursuant to regulations promul gated by the Secretary, enable such commit tee to exercise the rights described ln tills section. "(2) Membership.--A committee estab lished under paragraph (1) shah consist of-- (A) the employee safety on.* ru'aita rep resentatives elected or appointed under sub section <c)(2?; and "<B> as determined appropriate oy the em ployer. employer representatives, the number of which may net exceed the number of employee representatives de scribed in subparagraph (A). "(3) Chairpersons.--A committee estab lished under paragraph (1) i.hail be co chaired by-- "(A) a representative selected oy the em ployer; and "(B) a representative selected by t!ui em ployee members of such cotnmiitc-3. "(4) Rights,--A committee established under paragraph (1) shall have the right, within reasonable limits and ln a reasonable maimer, to-- VVV G0G007543 August 1, 1991 CONGRESSIONAL RECORD -- SENATE S 11835 "(A) review any safety and health pro nonminagerial employees of the employer not intended to alter or affect such rights gram established under section 27 by the at the worksite during the year Jan and remedies.". employer: uary 1 was more than 10. but lem than 50: (b) Errscr or Amendment.--The amend "(B) review Incident* involving work-relat ed fatalities, Injuries and Illnesses and com plaints regarding safety or health hazards by employees: "(C) review, upon the request of the com mittee or upon the request of the employer representatives or employee representatives "(B) two employee safety and health rep resentatives where the average number of nonmanagerial employees of the employer at the worksite during the year ending Jan uary 1 was more than 50, but leas than 100: "(C) an additional employee safety and health representative for each additional ment made by subsection (a) shall not be construed to affect the amendments made by section 38 of the Occupational Safety and Health Act of 1970 as such section ex isted on the date of enactment of such Act. TITLE IB--COVERAGE of the committee, the employer's work 100 such employees at the worksite, up to a SEC Ul. EXTENSION OP COYEHAGI TO PUBLIC EM injury and illness records, other than per maximum of six employee safety and health PLOYEES sonally identifiable medical information, and other reports or documents relating to occupational safety and health: "(D) conduct inspections of the worksite at least once every 3 months and in re sponse to complaints regarding safety or health hazards by employees or committee members; "(E) conduct Interviews with employees In conjunction with inspections of the work site: "(F) conduct meetings, at least once every representatives, except aa provided In para graph (3XC); and "(D) where an employer's employees do not primarily report to or work at fixed lo cation, at worksites at which ton than 11 employees of a covered employer ere em ployed. or at worksites where employees of more than one employer are employed, a number of employee safety and health rep resentatives as determined by the Secretary by regulation. "(3) Selection.--Employee mfety and (a) Petinition op Employee.--Section 3<5> (39 U.&C. 553(5)) is amended by striking "but does not include'' *nd inserting "in cluding". (b) CONPOEmo Amendments.-- (1) Section 19 (38 U-8.C. 558) is repealed. (3) Section 410(b) of title 39, United States Code, is amended by striking paragraph (7) and Inserting the following new paragraph: "(T) the Occupational Safety and Health Act of 1970 (39 UJLC. 851 et Seq.);''. 3 months, and maintain written minutes of health representatives shall be selected by SEC m. APPLICATION OP ACT. such meetings; and from among the employer's nonmana Section 4(b) (39 UAC 653(b)Q)> is "(Q) observe the measurement of employ gerial employees, aa follows: amended-- ee exposure to toxic materials end harmful "(A) Where none of the employer's em (1) in paragraph (1) to read as follows: physical agents: ployees at a worksite are represented by an "(l) Where a Federal agency has promul "(H) establish procedures for exercising exclusive bargaining representative, the em gated and Is enforcing standards or regula the right* of the committee: ployees shall elect employee safety and tions affecting the occupational safety or "(I) make recommendations on behalf of health representatives in an election held in health of some or all of the employees the committee, and in making1 such recom conformity with procedures pursuant to reg within that agency's regulatory Jurisdiction, mendations. permit any member of such committee to submit the separate views of such member, or on behalf of the employer or employee representatives on such com mittee, to the employer for improvements In the employer's safety and health program and for the correction of hazards to employ ee safety or health, except that such recom mendations shall be advisory only and the employer shall retain full authority to manage the worksite; and "(J) accompany the Secretary or the Sec retary's representative during any physical inspection of the worksite under section 8(a). "(9) Time roa committee actnmn.-The employer shall permit members of the com mittee established under paragraph (1) to take such time from work as is reasonably necessary to exercise the rights of the com mittee, without suffering any loss of pay or benefits for time spent on duties of the com mittee. "(6) Regulations.--Not later than L year after the effective date of this section, the Secretary shall promulgate final regulation* fur the establishment and functioning of safety and health committees under this ulations promulgated by the Secretary. "(B) Where the employer's employees are represented by a single exclusive bargaining representative, the bargaining representa tive shall designate the employee safety and health representatives. "(C) Where the employer's employees are represented by more than one exclusive rep resentative or where some but not all of the employees are reprenented by an exclusive representative, each bargaining unit of rep resented employees (and any residual group of unrepresented employees) shall have a proportionate number of employee safety and health representatives based on the number ol employees In each bargaining unit or group, except that each such unit or group of 11 or more employees shall have at least one representative. The selection proc ess shall be conducted In accordance with the provisions of subparagraph <A) or <B> as applicable. "(3) Regulations.--Not later than 1 year after the effective date ol this section, the Secretary shall promulgate regulations con cerning safety and health representatives. Such regulations shall Include provisions concerning-- and the Secretary of Labor determines that a standard or regulation as promulgated and the manner in which such standard or regu lation is being enforced provides protection to those employees that is at least as effec tive as the protection provided to those em ployees by the Secretary's enforcement of this Act. the Secretary may publish a notice in the Federal Register setting forth such determination and the reasons therefore and certifying that the Secretary has ceded Jurisdiction to that Federal agency with re spect to the specified hazards to which the designated employees are exposed. Such cer tification shall remain In effect unless and until rescinded by the Secretary."; (2) by redesignating paragraphs (3) through (4) as paragraph (5) through <7). respectively: and (3) by Inserting after paragraph (1). the following new paragraphs: "(3) The Secretary shall, by regulation, es tablish procedures by which any affected person may petition the Secretary to re scind a "certification under paragraph <i). Upon receipt of such a petition the Secre tary shall Investigate the matter and shall, section. Such regulations shall Include pro visions concerning--- "(A) the establishment of such commit tees by an employer whose employees do "(A) the number of employee safety and health representatives where sn employer's employees do not primarily report to work at a fixed location; within 90 days after receipt of the petition, publish a decision with respect to the peti tion In the Federal Register. "(3) Any person who may be adversely af not primarily report to or work at a fixed lo "(B) the number of employee safety and fected by a decision of the Secretary certify cation: health representatives with respect to work ing that the Secretary has ceded jurisdic "(B) the establishment of such commit sites at which less than 11 employees of a tion to another Federal agency pursuant to tees with regard to worksites at which less covered employer are employed: paragraph (i), or by a decision of the Secre than 11 employees of a covered employer "(C) the number of employee safety and tary denying a petition to rescind such a are employed: health representatives at worksites where certification under paragraph (2), may at "(C) the establishment of committees at employees of more than one employer are any time prior to the 60th day after such worksites where employees of more than employed; and decision is published In the Federal Register one employer are employed; and "(D) the selection and election procedures file a petition challenging such decision "(D) the employer's obligation to enable for employee safety and health representa with the United States court of appeals for the committee to function properly and ef tives, such election procedures to provide the circuit wherein such person resides or fectively. Including the provision of facilities for a fair election by secret ballot and pro has his or her principal place of business, and materials necessary for the committee tect employee's equal rights to participate for Judicial review of such decision. A copy to conduct its activities, and the mainte In the election without being subject to pen of the petition shall be forthwith transmit nance of records and minutes developed by alty. discipline. Improper Interference or re ted by the clerk of the court to the Secre the committee. "(c) Employs Safety jutd Health Refke- SrWTATIVES.-- prisal. tary. The Secretary's decision shall br set "(d) Additional Rights.--The rights and aside If found to be arbitrary, capricious, an remedies provided to employees and em -abuse of discretion, or otherwise not In ac "(1) lit oenkeal.--Safety and health com ployee safety and health representative* by cordance with law. mittees established under this section shall this section are in addition to, and not In "(4) Nothing in this Act shall apply tc include-- lieu of. any other rights and remedies pro working conditions covered by the Mine "(A) one employee safety and health rep vided by contract, by other provisions of Safety and Health Act of 1977 <30 U.S.C. resentative where the average number of this Act or by other applicable law, ma are SOI et seq.).''. VVV 000007544 S 11836 CONGRESSIONAL RECORD -- SENATE August l, 1991 SBC Ml APPLICATION OP 08HA TO DOB NUCLEAR propriate United States court of appeals, SEC ua REVISION OP PERMISSIBLE EXPOSHUB FACILITIES. setteg under this subsection or mmu* sub LIMITS. Paragraph (6) of section 4(b) (24 UAC. 653(b)(2)) (u redesignated by section 302(2)) la amended to read as follows: *'(6) Notwithstanding paragraph (1) or any other provision of this law, this Act shall apply with respect to employment per formed In the Federal nuclear facilities under the control or Jurisdiction of the De partment of Energy.". SBC. Ml EXTENSION OP EMPLOYER PITIES TO ALL EMPLOYEES WORKING AT A PLACE OP EMPLOYMENT. Paragraph (1) of section 5(a) (20 UJB.C. 654(aK 1)) Is amended to read as follows: "(1) shall furnish employment and a place of employment which are free from recog nized hazards that are causing or are likely to cause death or serious physical harm to the employees of the employer or to other employees at the place of employment.". TITLE IV--OCCUPATIONAL SAFETY AND HEALTH STANDARDS SEC. 431. TIMEFRAMES FOR SETTING STANDARDS. (a) Recommendations and Petitions por Standards.--Paragraph (2) of section S(b> (29 U.5.C. 655(bK2)> is amended to read as follows: "(2XA) If the Secretary receives a recom mendation of an advisory committee, the Secretary of Health and Human Services or the Administrator of the Environmental Protection Agency or a petition from an In jection (hV" (2) by adding at the end (hereof the fol lowing new subsection: "(hXl) Any person who may be adversely affected by a determination by the Secre tary under subsection (bX2) not to propose a rule promulgating, modifying, or revoking a standard may at any time prior to the ex piration of 00 days after such determination Is published In the Federal Register file a petition seeking review of such determina tion with the United States oourt of appeals for the circuit wherein such person resides or has his or her principal place of business. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary's determination shall be set aside If found to be arbitrary, capricious, an abuse of discretion, or other wise not In accordance with law. "(2) Any person who may be adversely af fected by a failure of the Secretary to take any action required by this section within the time period prescribed by this section may at any time after such period of time has elapsed file a petition lor review stating that such action has been unlawfully with held or unreasonably delayed. Such petition may be filed with the United States court of appeals for the circuit wherein such person resides or has his or her principal place of business. A copy of the petition h*n be Section 8 (29 U.S.C. 655) (as amended t section 401(d)) is further amended by adding at the end thereof the following new subjection: "(i) In addition to other health and safety standards promulgated under subsection (b), the Secretary shall In cooperation with the Secretary of Health and Human Serv ices, modify and establish exposure limits for toxic materials and harmful physical agents on a regular basis, in accordance with the requirements of subsection (b)(5). In the following manner "(1) The Secretary of Health and Human Services, acting through the National Insti tute for Occupational Safety and Health, shall regularly evaluate available scientific evidence, data and information to determine if exposure limits for toxic materials and harmful physical agents promulgated under subsections <m> and (b) should be modified or established to protect exposed employees against material Impairment of health or functional capacity. Such evaluations shall Include a review of the scientific literature, standards of private and professional orga nizations, national consensus standards, standards adopted by other countries, ar.-J recommendations of State and Fedrrr.l agencies. "(2) Not lees than once every 3 ye-.rs t!.- terested person that sets forth with reason forthwith transmitted by the clerk of the Secretary of Health and Hvrran Seivi.'^b. able particularity the facts that the person court to the Secretary. The reviewing court acting through the National Institute in claims establish that an occupational safety shall compel the Secretary to take any occupations! Safety and Health, shail de e-r health standard should be promulgated, action that la found to have been unlawfully velop and transmit to the Secretary recon modified or revoked, the Secretary shall, withheld or unreasonably delayed. In decid mendations identifying toxic materials and not later than 90 days after receipt of such, ing whether to compel such action the court harmful physical agents. if any. for ahi.;. recommendation or petition, publish in the shall consider whether the Secretary's fail exposure limits should be modified or estab Federal Register a response stating whether ure to act is consistent with the time limits lished to protect employees /tom catena the Secretary intends to publish a proposed set forth in this section. The Secretary's Impairment of health or functional expac rule promulgating, modifying or revoking desire to confer with, or to receive approval ity. For each swh material or agent. rt:- such standard. from any other Federal agency or Federal recommeiuiation thall include a suggp:.i,t n "(B) If the response of the Secretary executive official, shall not Justify the with permissible exposure limit, the basis (or cl.e under subparagraph (A) states that the Sec holding or delaying of action by the Secre suggested exijosure limit and, where *---'.,1 retary does not intend to publish a proposed tary, except where such consultation or so able. Information on feasible control rule, the Secretary shall set forth the rea licitation of approval la required by Federal urea. sons for that decision. In all other cases, the law.". "(3) Not later than 30 days after the re Secretary shall, not later than 12 months after the receipt of a recommendation or pe tition under subparagraph (A>. publish in ihe Federal Register proposed rule pro mulgating, modifying or revoking the stand ard discussed In the petition or recommen dation.". (b> Procedure ron Comment and Hear ing.--Paragraph (3) of section 5(b) (20 (/.S.C. 655<bX3 is amended-- (1) by redesignating such paragraph as subparagraph (B> of paragraph (3): and (2) by inserting before such subparagraph, as so redesignated, the following new subparagraph: "(A) Where Information developed by or submitted to the Secretary Indicates that a rule should be proposed promulgating, modifying, or revoking an occupational safety or health standard, the Secretary snail publish such a proposed rule In the Federal Register and shall afford interested persons a period of at least 30 days after publication to submit written data or com ments.". SEC 4St BASIS POE STANDARDS. Paragraph (9) of section 3 (29 UJ5-C. 652(8)) is amended to read as follows: "(8) The term `occupational safety and health standard* means a standard that ad dresses a significant risk to the safety or health of employees by requiring condi tions, or the adoption or use of one or more practices, means. jnettiods; operations, or processes that most; adequately assure, to the extent feasible, safe and healthful em ployment and places of employment". SBC 4W. RECORDING OF WORK RELATED ILLNESS ES. Section 6(bX?) (29 UH.C. 655(b)(7)) is amended by inserting after the third sen tence the following new sentence: "The standard shall also prescribe requirements for recording or reporting a work-related ill ness determined as a result of a medical ex amination or test conducted under the standard.". SEC W. PUBLIC DISCLOSURE OP ALL COMMUNI CATIONS ON STANDARDS. ceipt of such recommendations, the tecre tary shall publish such recommendations cm exposure limits in the Federal H-visl-er a.,J provide a period of 30 days for public com ment. The Secretary shall evaluate th" r?c ommendatloru and public comment* ar.i not later Chan 6 months after the receipt ;,f such recommendations, shall f'tv.ish a p - poeed rule to maintain, modify or rrstabhsi. exposure limits for each toxic mati.-ial a.-.i harmful physical agent as to wh.ch the F retary of Health and Human Services has recommended that exposure Lir.lia b-; rte. J; fled or established. If a prep'sed (x^-s i!>. limit is net the same ae t ic s.-:ues`'t* suggested by the Secretary ol Hcaii.i Anri Human Services, the Secretary -l;-ill r.tDiain why the suggested limit 13 r.ot Leins p.o posed. "(4) Not later than 1 year a/'.ar the puru cation of the proposed exposure limits, the Secretary shall issue a fln&i ^anGiaid arid such standard shall be subject the re quirements of subsection (bK5). If a iu.a! (c) Time Frame for Issuing Rules.--Sec Section 6(b) (29 U.S.C. 655(b)) la amended exposure limit is not the same as the expo tion 6(bK4) (29 U.S.C. 6M(bX4 la amended by adding at the end thereof the following sure limit suggested by the Secretary of by striking "sixty days" both places such ap new paragraph: Health and Human Services, the Sec.rtAry pears and Inserting "180 days". "(9) The Secretary shall place all written shall explain the reasons that the suggested <d> Review of Secretary's Failure or Re comments and communications, and a sum exposure limit Is not being adopted. fusal To Issue Rules.--Section 5 (29 UAC. mary of all verbal communications, with "(fi) In addition to the periodic review of 615) is amended-- parties outride the Department of t permissible exposure limits required by this (1) by adding at the end of subsection (f) (including communications with other gov subsection, the Secretary shall also estab the following new sentence: "Judicial review ernment agencies), regarding the promulga lish or modlly exposure limits for toxic ma of the validity of an occupational safety and tion. modification or revocation of stand terials and harmful physical agents when health standard may be obtained exclusive ard under this section. In the public ever such action Is warranted, pursuant to ly through a petition for review In the ap record.". subsections <bX4> and (g).*`. wyV 00003^A5 S 11838 CONGRESSIONAL RECORD -- SENATE August 1, 1991 atlon and the number of enforcement per tion's provision that the period for the cor whether such employee or representative sonnel required for such inspections. rection of the violation shall run from the has previously elected to participate in the `(3) Inspections conducted under this sub date of the receipt of the citation, if the proceedlnga. shall have the right to file section shall be in addition to other inspec Commission determines, based on a oonaid- notice with the Secretary alleging that the tions conducted under this Act. eration of the nature of the violation, that proposed agreement fails to effectuate the "(4) The Secretary shall annually submit the nature and degree of risk posed to em purposes of this Act. and stating the re a report to the Congress on the special em ployees by the employer's refusal to under spects in which it falls to do so. phasis inspection program as part of the take prompt correction of the violation, and *'(3) Upon receipt of a notice filed under Secretary's *nni|| report required under the extent of any irreparable injury the em paragraph (2), the Secretary shall consider section 26 which shall include the informa ployer would incur by undertaking correc the matter, and if the Secretary determines tion on inspections described in paragraph tion of the violation during the pendency of to proceed with the proposed agreement, (2) that were carried out in the preceding review proceedings, that such provision is shall respond with particularity to the and current year.". unreasonable In the circumstances.". statements presented In that notice. SEC. MS. INVESTIGATIONS OF FATALITIES AND 8E- (c) Penalties.--Section 17(d) (29 U.S.C. "(4) Not later thin 15 working days fol Riot'S INCIDENTS. 666(d)) is amended by striking out "(which lowing the Secretary's response provided Section 8 (29 U.S.C. 65?) (as amended by period shall not begin to run until the date pursuant to paragraph (3). the employee or section .>04) is further amended by adding of the final order of the Commission In the representative of employees shall upon at the end thereof the following new subsec case of any review proceeding under section filing a petition for service with the Com tion: 10 Initiated by the employer in good faith mission have the right to a hearing as to "(1X1) The Secretary shall investigate any and not solely for delay or avoidance of pen whether adoption of the proposed agree worfc-rel""d fatality or serious incident. alties)". ment would effectuate the purposes of the "(2) If a fatality or serious incident occurs (d) Ve*rncation or Abatement.--Section Act. including a determination as to wheth in a place of employment covered by this 10 (as amended by subsection (b is further er the proposed agreement would adequate Act. the employer shall notify the Secretary amended by adding at the end thereof the ly abate the alleged violations. of the fatality or serious incident and shall following new subsection: `*(5) If the Commission determines that a take appropriate measures to prevent the "(eXl) Each employer to whom a citation proposed agreement falls to effectuate the destruction or alteration of any evidence for a serious, willful or repeated violation purposes of the Act. the proposed agree that would assist In investigating the fatali has been issued under section 9 shall verify ment shall not be entered as an order of the ty or serious incident. the abatement of such violation In writing Commission, nor shall the citation be with "(3) As used in this subsection, the term to the Secretary not later than 30 days after drawn or modified in accordance with the 'serious incident' means an Incident that re sults in the hospitalization of two or more employees.''. SEC SOS. ABATEMENT OP SERIOUS HAZARDS CUBLNG EMPLOYEE CONTESTS. (a) Citations.--Section 9(a) (29 Ui3.C. 658(a)) is amended by inserting after the third sentence the following new sentence: "If the Secretary or an authorized repre sentative of the Secretary believes that an alleged violation is serious and presents such a substantial risk to the safety or health of employees that the Initiation of review proceedings should not suspend the running cf the period for the correction of the violation, the citation shall so state.". (b) Citations and EnroRcrann.--Section 10 (29 U.S.C. 69> ?s amended-- (1) in subsection (b>. by striking out ``(which period shall not begin to run until the period for the correction of the viola tion has expired, with appropriate documen tary evidence. Each such employer shall prominently post, at or near each place that a violation referred to in the citation oc curred, a notice that the violation has been abated, and shall make available to employ ees and employee representatives for Inspec tion a copy of the verification of abatement provided to the Secretary pursuant to this subsection. "(2) Not later than 1 year after the effec tive date of this subsection, the Secretary shall promulgate final regulations regarding the requirements of this subsection, includ ing provisions concerning-- "(A) the documentary evidence required to verify abatement of a violation: and "(B) the posting of notice of abatement of a violation.". proposed agreement.". BSC MS IMMINENT DANGER INSPECTIONS. (a) CoKBxcrxov or Conditions.--Section 13 <29 U.S.C. 662) is amended-- U) by striking out subsection <ck (2) by redesignating subsections (a) and (b) aa subsections (b) and (c). respectively: and (3) by inserting before subsection tto). as so redesignated, the following new subsection: "(oKl) If any representative of the Secre tary determines, on the basis cf an inspec tion or investigation under this section, that a condition or practice In a place of employ ment Is such that an imminent danger to safely or health exists Uiat could reason ably be expected to cause death or serious physical harm or permanent impairment ot the health or functional capacity cf employ ees if not corrected Immediately, the repre the entry cf a fir.sil order by the Commis 3EC. SS7. BIGHT TO CONTEST CITATIONS AND PEN sentative of the Secretary stiail so micro sion in the case of any review proceedings ALTIES. the employer and affected employees end under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties)''; and The first sentence of section 10(c) (29 UjS.C. 659(c)) is amended by inserting after "files a notice with the Secretary" the fol shall request that the condition or practice be corrected immediately or that employees be immediately removed trutn exposure to (2) by adding at the end thereof the fol lowing: "alleging that the citation fails such danger. lowing new subsection: properly to designate the provisions of the "(2) If the employer re.'uses to comply "(d)(1) Excerpt as provided In paragraphs Act, standard, rule, regulation or order that with arequest under paragtaon (1), the rep (2) and (3). th? period permitted for the cor have been violated, or that the citation fails resentative of the Secretary snail consult by rection of a violation shall begin to run property to designate the violation as seri telephone or similarly direct medium of from the date oi the receipt of the citation. ous, willful or repdgon, or that the pro communication with the Secretary or the "(2) If the employer initiates timely posed penalty is not adequate, or". Secretary's designee to determine whether review proceedings under this section in SBC. SSS. BIGHT OP EMPLOYEE REPRESENTATIVES notice should be posted In Uie workplace which the employer contests matters other than the proposed assessment of penalty or TO PARTICIPATE IN OTHER PROCEED pursuant to paragraph (3). INGS. "(3) If the Secretary or the Secretary's characterization of the '.dotation and the The last sentence of section 10(0 (29 designee so authorises, the representative ol proceedings are initiated by the employer In OS.C. 659(c)) is amended by inserting after the Secretary shall immediately cause good faith and not solely for delay, the "participate as parties to hearings" the fol notice to be posted In the woi Kplace identi period permitted for the correction of a vio lowing: "or other proceedings conducted" fying the equipment, process or practice lation shall, except &s provided in para SEC. SOI. OBJECTIONS TO MODIFICATION OP CITA that is the source of the imminent danger. graph (3>, net begin to run until the entry TIONS. Such notice shall take the form of a tag dt of a final order by the Commission. Section 10 (29 U.S.C. 669) (as amended by other device that will be seen by employees "(3) If the citation states that the viola section 506) is further amended by adding at who might otherwise be exposed to me dan tion is serious and presents such a substan ihe end thereof the following new subsec gerous equipment, process or practice. The tia) risk to the safety or health of employ tion: notice shall be removed onty uy the Secre ees that the initiation of review proceedings "(fMl) If the Secretary intends to with tary or a representative of the Secretary. shall not suspend the running of the period draw or to modify a citation as a result of "(4) The fact that such notice has b for correction of the violation and if. simul any agreement with the cited employer, the posted shall be noted In any citation ilkucu taneous with initiating timely review pro rules of procedure prescribed by the Com pursuant to section 9 wuh respect to the ceedings under the citation, the employer mission shall provide for prompt notice to hazard involved. files a statement asserting that the period affected employees or representatives of af "(5) No person shall discharge or in any for correction of the violation should be sus fected employees, and that such notice in manner discriminate against any employee pended during such proceedings, the Com clude the terms of the proposed agreement. because such employee has refused to per mission shall expedite Lhc consideration and *'(2) Not later than IS working days after form a duty that would expose the employ decision of the employer's review proceed the receipt of the notice provided in accord ee to the condition or a practice that has ing. In its decision resolving that proceed ance with paragraph (1), any employee or been identified as the source of imminent ing. the Commission may modify the cita representative of employees, regardless of danger by a notice posted pursuant to para- VVV 000007546 August 1, 1991 CONGRESSIONAL RECORD -- SENATE 81183? sac. 4M. expoburs monitoring and umgil SURVEILLANCE. Section 6 (43 U.S.C. 655) (m amended by sections 401(d) and 406) Is further amended by adding at the end thereof the following new subsection: "(jXl) Not later than 3 yean after the ef fective date of this subsection, the Secretary shall promulgate final standards on expo sure monitoring and medical surveillance programs In accordance with subsection (b>-- "(2) The standards on exposure monitor ing promulgated under paragraph (l) shall Include the following. "(A) Requirements for a formal exposure assessment In a case where workers may be exposed to toxic materials or harmful physi cal agents that are subject to standards Issued under this section, including toxic materials or harmful physical agents cov ered under section 1910.1200 of title 29, Code of Federal Regulations. "(B) Requirements for regular monitoring and measurement of toxic materials or harmful physical agents for which an expo sure limit has been established by the Secre tary or adopted by the employer, where such monitoring and measurements will assist In protecting the health and safety of workers exposed to such toxic materials or harmful physical agents. "<C> Requirements for a written compli ance plan for reducing exposures where ex posures are determined to exceed limits es tablished by the Secretary or adopted by the employer. "(D) Requirements for employees to be notified (n writing of exposures above expo sure limits established by the Secretary or adopted by the employer and the steps the employer is taking to reduce exposures. "(E) Requirements for the maintenance of and access to exposure records according to the provisions cf section 1910.20 of title 29, Code of Federal Regulations. "(F) Requirements for any safety and health committee established under section 28 to review the exposure assessment and exposure monitoring program, to observe exposure monitoring, to receive and have access to copies of assessment and monitor ing results, to review written compliance plans, and to make recommendations with respect to such programs and plans. "(3) The standards on medical surveil lance programs promulgated under para graph U) snail include the following: "(A) Requirements for an evaluation of employee exposure assessments and expo sure monitoring to identify which employ ees may be at risk of material impairment of health or functional capacity due to expo sure to toxic materials or harmful physical agents. "(B) Requirements for periodic medical examinations for employees identified to be at risk of material impairment of health or functional capacity due to exposure to toxic materials or n&rmful physical agents where such examinations are appropriate to identi fy or to prevent material impairment to health or functional capacity. "(C) Requirements for the evaluation of the results of medical examinations to de termine if an employee or a group of em ployees are exhibiting indications of present or potential material impairment of health or functional capacity due to exposure to toxic substances or harmful physical agents. "'D) Requirements for the notification of employees of the results of medical exami nations in a manner that is understood by the employees. "(E) Provisions setting forth the qualifica tions for health care providers who may conduct medical examinations mandated by this section. Where feasible, the Secretary In cooperation with the Secretary of Health and Human Services shall establish criteria and procedures for the certification of health care providers who conduct medical tin itmr thh SSCtlOXl, "(F) Provisions to assure the confidential ity of personally Identifiable medical Infor mation developed under this section. "(G) Provisions to prohibit discrimination against ampiny-- baaed on the results of medieal examinations and. as appropriate, provisions to provide for the protection of the wages, benefits, seniority and other rele vant conditions of employment of employ ees who are transferred or removed from their jobs doe to the result of medical ex aminations conducted under this section. "(H) Records developed under this subsec tion shall be maintained and made available according to the provisions of section 1910.20 of title 29. Code of Federal Regula tions. "(I) Requirements for the safety and health committee established under section 28 to review the employer's medical surveil lance program and to make recommenda tions with respect thereto. ". SIC. 447. STANDARD ON ERGONOMIC HAZARDS. Section 6 (42 UAC. 656) (as by sections 401(d), 405 and 406) is further amended by adding at the end thereof the following new subsection: "(kXl) Not later than 1 year after the ef fective date of this subsection, the Secretary shall Issue a final standard on ergonomic hazards to protect employees from work-re lated musculoskeletal disorders in accord ance with subsection (b)(6). "(2) The final standard issued under para graph (1) shall Include the following: "(A) A requirement for an ergonomics program for employees who are exposed to ergonomic hazards, that shall Include provi sions for hazard identification, control measures, medical management, training and education, and employee participation. "(B) Requirements for an evaluation of Job processes, work station design, rate of work, and work methods to identify ergono mic risk factors that cause or are likely to cause musculoskeletal disorders. "(C) Requirements for control measures to reduce stressors and musculoskeletal dis orders Including engineering controls, new equipment or work organization controls. "(D) Requirements for an effective medi eal management program for musculoskele tal disorders including requirements for qualified health care providers, health sur veillance, appropfMte diagnosis, treatment, and followup. ' "(E) Requirements for recording muscu loskeletal disorders as an Illness as defined under section 8(cX2) and reporting such ill nesses to the Secretary. "(F) Requirements for the training and education of employees exposed to ergono mic hazards on ergonomic risk factors, con trol measures and the employer's medical management program. "(G) Requirements for employee partici pation in the establishment and Implemen tation of tne employer's ergonomic program through any safety and health committee established under section 28.". SEC. 444. TIMETABLE FOR SPECIFIC STANDARDS. Section 6 (42 U.S.C. 655) (as amended by sections 401(d). 405. 406 and 407) Is further amended by adding at the end thereof the following new subsection: "(1) The Secretary shall issue the follow ing safety and heslth standards under sub section <bk "(1) Not later than November SO. 1991. the Secretary shall Issue a final standard con cerning bloodborne pathogens. "(2) Not later than December SI. 1991. the Secretary shall Issue final standards con cerning: "(A) permissible exposure iiwiu, upds for construction, maritime and agriculture: "(B) electric power generator, transmis sion and distribution; "(C) logging operations: "(D) face, head, eye and foot protection; "(E) walktng and working surfaces; "(F) hazardous *****?; and "(G) motor vehicle inspection, mainte nance and safety. "(2) Not later than June 30. 1992, the Sec retary shall issue final standards on: "(A) "(B) confined space entry. "(C) asbestos (remand); "(D) accreditation of training for programa for hazardous waste operate ns: and "(E) methylene chloride. "(3) Not later than December 31,1992. the Secretary shall issue final standards on: "(A) respiratory protection: "(B) 1.3-butadlene; "(C) scaffolds; "(D) fall protection: and "(E) glycol ethers. "(4) Not later than December 31. 1993. the Secretary shall issue final standards on: "(A) indoor air quality; and "(B) safety and health regulations folongshoring. "(5) Nothing in this subsection shall bconstrued as limiting the Secretary from U suing additional safety and health stand ards under subsection (b).". TITLE V--ENFORCEMENT SEC. SSL NO LOSS OF EMPLOYEE PAY FOR INSPEC TIONS. Section 6(e) (29 U.S.C. 667(e)) Is amended by inserting after the first sentence the i< lowing new sentence: "Time spent by an ei ployee on any such Inspection shall t deemed to be hours worked for purposes of wages, benefits, and other terms and condi tions of employment.". SET- MS. COMPLAINTS. Section (8Xf)(l> <29 DAC. 657(f)(1)) > amended-- (1) in the first sentence, by inserting the Act or" after "violation of": and (2) by inserting after the third sentenc, the following new sentence: "2f the Secre tary. upon notification from any other source determines that there are reasonable grounds to believe that an imminent danger <(as described in section 13(a)) or serious via latlon (as described In section 17<k exiri" in a place of employment, the Secretary shall also make a special inspection in ac cordance with this section. SEC M3. TIMEFRAME FOR RESPONSE. The last sentence of section a-'fHl* <2? DAC. 657(fXl is amended by inserting before the period the following: "not lat. than 30 days after the receipt of the reques. for inspection". SBC 544. MANDATORY SPECIAL EMPHA8I* Section 8 (29 U-S.C. 657) Is amended b-- addlng at the end thereof the following nr subsection: "(hxi> The Secretary shall establish a;-. : carry out a special emphasis inspection pro gram for conducting inspections of indus tries or operations where existing hazards newly recognized or new hazards introduced into worksites warrant a more .mens:-., than normal Inspection program. "(2) The Secretary shall annually desi naie the Industries and operations fur ti special emphasis Inspection program ano Identify the number of special emphasis In spections that the Secretary plans to con duct In each designated industry and eper- WV 000007547 August 1, 1991 CONGRESSIONAL RECORD -- SENATE S 11839 graph (3). The right to refuse to perform by a fine in accordance with section 3571 of gation and determine whether there is rea such a duty shall be In addition to any other right to refuse to perform hazardous work that Is afforded to employees by this Act. by standards or regulations Issued pursuant to this Act, by contract, or by other applicable law.". < 4) in subsection <b>, as so redesignated, by striking out the first sentence and inserting In lieu thereof the following new sentence: "The United States district courts shall have Jurisdiction, upon petition of the Sec retary, to restrain any conditions or prac tices in any place of employment which pose an imminent danger as described In subsection (a).". (b> Pxau.'nxa.--Subsection (e> of section title 18, United States Code, or by imprison ment for not more than 6 years, or by both, except that if Che conviction ts for a viola tion committed after a ftnt conviction ol such person, punishment shall be by a fine in accordance with section 3871 of title 18, United States Code, or by imprisonment for not more than 10 yean, or by both,": and (6) by adding at the end the following new subsection: "(n> If a penalty or fine Is Imposed on a di rector. officer, or agent of an employer under subsection (e). <f). (g), or <hk such penalty or fine shall not be plaid out of the assets ol the employer on behalf of that in dividual.". sonable cause to believe that the complaint has merit and shall notify the complainant and the peraon alleged to have committed a violation of this section of such findings. Where the Secretary hss concluded that there is reasonable cause to believe that a violation has occurred, the Secretary shall accompany such findings with a preliminary order providing the relief prescribed by this subsection. Thereafter, either the person al leged to have committed the violation or the complainant may, within 30 days, file objec tions to the findings or preliminary order, or both, and request a hearing on the record, except that the filing of such objec 17 (29 DAC. 696) is amended-- < Ll by inserting "(1)" alter the subsection designation; and C2) by adding at the end thereof the fol lowing new paragraph: '(2) In the event that an employer does not immediately correct the hazard refer enced in a notice posted under section 13(a) or remove all employees from exposure thereto, the employer shall be assessed a civil penalty of not lea than 610,000 and not more than 660,000 for each day during which an employee continues to be exposed to the hazard. This paragraph shall not apply If the Commission determines that the condition or practice was not of such a nature as to be covered by section 13(a).". SEC. 611. CITATIONS AND FKNAi/TtES FOB VIOLA TIONS OF SECTION XI AND SECTION M. (a) Citations.--Section 9<a) (29 US.C. 658(a)) Is amended by Inserting ", 27 or 28" after "section 5". (b> Pen ax.ms.--Section 17 (29 U.S.C. 666) Is amended-- (1) la subsection (a), by Inserting ", 27 or (b) Dptninow.--flection 3 (29 UAC. 852) is amended by adding at the end thereof the following new paragraph: "(IS) The term `serious bodily Injury* means bodily Injury that Involves-- "(A) a substantial risk of death; "(B) protracted unconsciousness; "(C) protracted and obvious physical dis figurement; or "(D) protracted loss or Impairment of the function of a bodily member, organ, or mental faculty/'. (c) Jurisdiction for Prosecution Under State and Local Crucxnal Laws.--Section 17 (29 U.8.C. 666) (as amended by subsec tion Ca is further amended by adding at the end thereof the following new subsec tion: "(o> Nothing In this Act shall preclude State and local law enforcement agencies from conducting criminal prosecutions In accordance with the laws of such state or locality/*. TITLE VI--PROTECTION OP EMPLOYEES PROM DISCRIMINATION tions shall not operate to stay any reinstate ment remedy eortalrml in the preliminary order. Such hearings shall be expeditiously conducted. Where a hearing is not timely requested, the preliminary order shall be deemed a final order which is not subject to Judicial review. Upon the conclusion of such hearing, the Secretary shall issue a final order within 120 days. In the Interim, such proceedings may be terminated at any time on the basis of an agreenent entered into by the Secretary, the complainant, and the person alleged to have committed the viola tion. "(B) If. in response to a complaint filed under paragraph (1) or (2). the Secretary determines that a violation of this subsec tion has occurred, the Secretary shall order 'll) the person who committed such viola tion to take action to correct the violation; "(U) such person to reinstate the com plainant to the complainant's former posi tion together with the compensation (in 23" after "section 5": 9EC. Ml. ANTIDISCRIMINATION PROVISIONS. cluding backpay), terms, conditions, and (2) in subsection <b). by Inserting ", 27 or 28" after "section 6": and <3> In subsection (c>, by inserting 27 or 28" after "section S". SEC Sit. OSKA CRIMINAL PENALTIES. Section 11(c) (29 U.S.C- 660(c)) Is amend ed-- (1) in paragraph (l). by adding before the period the following; Including reporting any injury, illness or unsafe condition to the privileges of the complainant's employment; and "(lit) compensatory damages. If such an order is issued, the Secretary, at the request of the complainant, may assess (a) Zb Ooteral.--Section 17 (29 U.S.C. employer, agent of the employer, the safety against the person against whom the order 8j*3) is amended-- (l > in subsection (e)-- (A) by striking "fine of not more than $10,039" and inserting "fine in accordance -with section 3571 of title 18. United States code."; <8) by striking "six months" and Inserting 10 years"; (C) by striking "fine of not more than 1.20,000'' and inserting "tine In accordance with section 3571 of title 18, United States Code."; and (D) by striking "one year" and inserting "20 years"; <2> in subsection (f). by striking "fine of not more than 81,000 or by Imprisonment for not more than six months," and Insert and health committee or employee safety and health representative"; (2) by striking out paragraphs (2) and (3). and Inserting the following new paragraphs: "(2) No person shall discharge or in any manner discriminate against an employee for refusing to perform the employee's duties because of the employee's reasonable apprehension that performing such duties would result In serious lnjurjuto the employ ee or other employttHplThe circumstances causing the employee's apprehension of se rious Injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee would con clude that there Is a bona fkle danger of an injury or serious Impairment of health re is issued a sum equal to the aggregate amount of ail costs and expenses (including attorney's fees) reasonably incurred as de termined by the Secretary of Labor, by the complainant for, or in connection with, thj bringing of the complaint upon which the order was issued. "(5HA1 Any person adversely affected O'- aggrieved by an order issued after a hearing under paragraph (4KB) may obtain review of the order In the United States Court of Appeala for the circuit in which the viola tion. with respect to which the order was issued, allegedly occurred, or the circuit in which such person resided on the date of such violation- The petition for review must ing "fine In accordance with section 3571 of sulting from the circumstances. In order to be filed within 80 days from the issuance of title 18, United States Code, or by imprison Qualify for protection, the employee must the order of the Secretary. Such review ment for not more than 2 years,"; have sought from his employer, and have shall be in accordance with the provisions or (3) In subsection (g), by striking "fine of been unable to obtain, corrections of the cir- chapter 7, of title 5, United States Code, and not more than $10,000, or by Imprisonment for not more than six months." and Insert ing "fine In accordance with section 3571 of title 18. United States Code, or by Imprison ment for cot more than 1 year.": (4) by redesignating subsections (h) through (1) as subsections <i) through <m>, respectively; (5) by inserting after subsection <g) the following new subsection: "(h) Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 6, or any regulation pre scribed pursuant to this Act. and that violatlon causes serious bodily Injury to any em cuqastancea causing the refusal to perform the employee's duties. "(3) Any employee who believes that such employee has been discharged, disciplined, or otherwise discriminated against by any person in violation of this subsection may, within 180 days after such alleged violation occurs, file (or have filed by any person on the employee's behalf) a complaint with the Secretary alleging such discharge, disci pline. or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint. "(4XA) Not later than 60 days after the shall be heard and decided expeditiously. "(B) Whenever a person has failed to comply with an order issued under para graph 14MB>. the Secretary shall file a civil action in the United States district court for the district in which the violation was found to occur In order to enforce such order. In actions brought under this subsection, the district court shall have Jurisdiction to grant all appropriate relief. Including In junctive relief, reinstatement, back pay and compensatory damages. "(6) The legal burdens of proof that pre vail under section 1221(e) of title 5. United ployee but does not cause death to any em receipt of a complaint filed under paragraph States Code, shall govern adjudication of ployee. shall, upon conviction, be punished (3). the Secretary shall conduct an investi protected activities under this subsection." vvv 0000075A8 S 11840 CONGRESSIONAL RECORD -- SENATE August 1, 1991 TITLE VII-06HA AND NIOSH TRAINING AND EDUCATION SBC. tIL 08HA AND NIMH TRAINING ACTTVTTlXa. (a) Expansion.--Section 31 <30 UJ3.C. 870> Is amended-- (1) In subsection (a) by Inserting after "qualified personnel to carry out the pur pose of this Act," the following: ", Including education programs for employees and members of safety and health committees, as appropriate,'*: and (3) by adding at the end thereof the fol lowing new subsection: "(d) The Secretary shall develop, directly or by grants or contracts, training materials, model curricula and programs to assist em ployers in providing the training and educa tion required by section 37 and In complying with the standards issued under section 6.". TITLE VIII--RECORDKEEPING AND REPORTING SEC Ml. DATA COLLECTED BY SECRETARY. Section 34(a) (29 U-S.C. 673) Is amended-- (1) by Inserting "<D" after the subsection designation: and (2) by adding at the end thereof the fol lowing new paragraphs: "(2) For the purpose of setting safety and health standards, targeting inspections to individual establishments, evaluating stand ard setting and enforcement programs, and lor other purposes, the Secretary shall col lect information and conduct analyses that identify-- "(A) Industries, employers, processes, op erations. and occupations that have a high rate of injury or illness: "(B) factors that cause or contribute to in juries and illnesses; and "(C) workers' compensation costs associat ed with the injuries and lllnrnnn "(3) The Secretary shall issue regulations that require each employer covered by this Act to report to the Secretary each work-re lated death of an employee of the employer immediately upon knowledge of the employ er, and to report each serious Incident that results in the hospitalization of two or more employees of the employer within 24 hours of the incident "(4) Data collected under this subsection shall be publicly available In a form suitable lor further statistical analysis.'*. SEC. Ml. EMPLOYEE REPORTED ILLNESSE& Section 8<cX2) (39 U.S.C. 697(c)(2)) is amended-- (1) by striking "deaths. Injuries and ill nesses" and Inserting "deaths and Injuries"; and (2) by inserting before the period at the end the following: ", and work related ill nesses and suspected work related niw---- (including a work related illness reported by an employee or an employee's physician), unless the employer "lair** a reasonable de termination that the illness is not work re lated". SEC. MS. EMPLOYEE ACCESS. Section S(cM2) (39 U-S.C. 657(cX2)) Is amended by adding at the end the following new sentence: "The records and reports re quired under this section shall be made available to the Secretary, the Secretary of Health and Human Sendees, to employees and to employee representatives.". TITLE IX--NIOSH 8EC. Ml. HAZARD EVALUATION REPORTS. Section 20(aX6> (29 U.8.C. 669<aX6 Is amended-- (1) In the second sentence, by Inserting "and whether any hazardous condition or harmful physical agent found In the place of employment poses a risk to exposed em ployees" after "as used or found"; and (2) by inserting after the second sentence, the following new sentence: "If a determina tion is not made within 6 months of the re ceipt of a request, the Secretary shall pro vide the employer and affected employees with an interim report on the known or sus pected hazards and rfcomnifndmtl^ns for control and an estimate of the time that a final determination will be made.". 8BGMS. SAFETY RESEARCH AND EVALUATIONS. Section 30<a) <20 UAC. 660(a)) la amend ed by adding at the end thereof the follow ing new paragraph: "(8) The Secretary of Health and Human Services shall identify major factors con tributing to occupational injuries and fatali ties through accident Investigations, and ep idemiological research.". SEC MS. INFORMATION AND EDUCATION ABOUT OCCUPATIONAL ILLNE88E8. Section 30(a) (20 U.S.C. 660(a)) (as amend ed by section 903) Is further amended by adding at the end the following new para graph: "(9) The Secretary of Health and Human Services shall carry out a program to Identi fy and notify employees at tnoeased risk of occupational Illnesses, injuries, and fatali ties, Including public Information and edu cation programs for groups of workers at In creased risk. In carrying out the program, the Secretary shall notify subjects of stud ies conducted or funded by the Secretary who are found to be at Increased risk mad shall make rtawimMMUHmi on appropri ate medical surveillance for groups of em ployees at increased risk.'*. EEC Hi CONTRACTOR RIGHTS. Section 20(b) (39 U.S.C. 660(b)) Is amend ed by Inserting after "Secretary of Health and Human Sendees'* the following: "or the designees or contractors of such Secretary.'*. SBC ML NATIONAL SURVEILLANCE PROGRAM. Section 20 (20 U.S.C. 660) la amended by adding at the end thereof the following new subsection: "(fXl) The Secretary of Health and Human Services, acting through the Nation al Institute for Occupational Safety and Health, shall (in cooperation with other agencies of the Department of Health and Human Services and the Secretary of Labor) establish a national surveillance pro gram to identify cases of occupational ill nesses, fatalities, and serious Injuries. In conducting the national surveillance pro gram. the Secretary of Health and Human Services shall coordinate the activities of the Secretary with State health agencies and Federal and State workers* compensa tion agencies. "(2XA) The Secretary, oi--Health and Human Services shaimfilet data each year on the number and characteristics of all oc cupational fatalities, selected occupational Illnesses, and selected occupational Injuries. "(B) In selecting occupations! diseases and injuries for the collection of data under subparagraph (A), the Secretary of Health and Human Services shall consider the known frequency of the disorder, the severi ty of the disorder, and the size of the popu lation at risk. *'<S) The Secretary of Health and Human Services shall prepare reports and of fatalities, occupational hi--f, and inju ries collected under the surveil lance program and transmit the Information to the Secretary of Labor. State health agencies, employers, employees, and other interested parties. "(4) The Secretary of Health and Human Services may issue regulations to require an employer, through a physician qr other health professional employed by or under contract to the employer, to report Informa tion on occupational fatalities, filnrsirs and injuries In order to carry out the provisions of this subsection.*'. SEC ML ESTABLISHMENT OP NIOSH AS A SEPA RATE AGENCY WITHIN PUBLIC HEALTH SEEVICE. The second sentence of section 23(b) (29 U.S.C. 671(b)) Is emended by Inserting after "The Institute shall be" the following: "es tablished as a separate agency within the Public Health Service and be". TITLE X--STATE PLANS SEC IN). 8TATE PLAN COMMITTEES AND PRO CRAMS. Section 18(c) (20 O.S-C. 667(c)) la amend ed-- (1) by striking "and" at the end of para graph (7k (2) by striking the period at the end of paragraph (8) and Inserting a ewnmi; mod (3) by at the end the following new paragraph: "(9) provides for the development of safety and health programs, training pro grams, and safety and health committees that are at least as effective as those re quired under section 37 and 28, and". SEC. IMA ACCESS TO INFORMATION; EMPLOYEE RIGHTO. Section 18(c) (39 U.S.C. 667(c)) (as amend ed by section 1001) is further amended by adding at the end thereof the following new paragraph: "(10) provides for reporting requirements, protection of employee rights, and access to Information that are at least sa effective as those required under this Act or other Fed eral laws which govern access to Informa tion related to this Act.". SEC IMS. COMPLAINTS AGAINST A STATE PLAN. Section 18 (39 DAC. 667) is amended-- (1) in the third sentence of subsection (e)-- (A) by Inserting after "preceding sen tence" the following: "and except as provid ed In subsections (f), (1) and (1)": and (B) by striking out "(except for the pur pose or* and all that follows through * of this section)"; and <2) by adding at the end thereof the fol lowing new subsection: "(1X1) If the Secretary receives a written complaint from an employer, employee, or employee representative that a State Is defi cient in its compliance with a provision of its State plan and the Secretary determines that there are reasonable grounds to believe that such a deficiency exists, the Secretary shall promptly Investigate any such com plaint. Complaints that allege a deficiency In an enforcement action by a State shall be Investigated not later than 30 days after me receipt of such complaint. "(2) The Secretary shall, not later than 30 days after the completion of an Investiga tion under paragraph (1), transmit In writ ing to the State and to the complainant the finding* of such investigations and recom mendations for the correction of any dvfF ciency that Is identified. If the Secretary de termines there are no reasonable grounds to believe that a deficiency exists the Secre tary shall notify the complainant in writing of such determination. "(3) Not later than 30 days after the re ceipt of a finding transmitted under para graph <2), the State shall respond to the Secretary in writing concerning what action the State has taken in response to the Sec retary's findings and recommendations. "(4) If after receipt of the response of the State under paragraph (3). the Secretary be lieves a serious violation of the Act exists for whleh the 8tate has failed to issue s ci tation. the Secretary shall with reasonable promptness Issue a citation.". REG 1ML ACTION AGAINST gTATE PLAN. Section 18(f) (20 U3.C 667(f)) la amend ed-- VVV 000007549 August l 1991 CONGRESSIONAL RECORD -- SENATE S 11841 (1) by Inserting "ID" alter the subsection designation: (2) by redesignating the second sentence as paragraph (3) and indenting such aooroprlately; (31 by inserting after paragraph (D. the following new paragraph: "(2XA) If the Secretary at any time finds reasonable grounds to believe mat a State has failed to comply substantially with any provision o( the State plan or any assurance contained therein, the Secretary shall give notice to the State of the deficiencies and shall allow 9 months for the correction of the deficiencies. "IB) If alter 8 months the Secretary de termines that the State hag not corrected the deficiencies and that grounds for with drawing approval of the State plan exist, the Secretary shall institute proceedings pursuant to paragraph (3) for the withdraw al of approval of the plan, unless the Secre tary determines in writing that exceptional circumstances exist that justify a decision not to institute such proceedings. and <4> by adding at the end thereof the fol lowing new paragraph: "(4) During the pendency of proceedings pursuant to paragraph (3), the Secretary shall exercise jurisdiction, concurrent with the State, over the safety and health issues that are subject to the State plan.". SEC. lOOi APPLICATION Of FEDERAL STANDARDS. Section 18 <29 t? S.C. 637) (ns amended by section iuG3) is further amended by auaing at the end thereof the following new subsec tion: "(J> In the event a State, within 6 months after the promulgation of a safety and health standard by tne Secretary under sec tion 6, fails to adept or p.oinujwaie a stand ard that is at least effective as tne Feder al standard, the State shall enforce the Fed eral standard until a Slate standard in in effect that is at least as effective as the Fed eral standard.". SEC. UVH. STATE PLAN CONFORMING AMEND,'IENTH. Section 18 (29 U.S.C. 6t37) amended by section 1003 arul ioC5) is further amended by adding at ihe end thereof the following new subsection: (X) Each state which is exercising au thority to operate a State safety and health plan under section 18 snail within 1 year of the effective date of this subsection modify the plan to conform with the requirements ci this Act." TITLE XI--VICTIM'S RIGHTS >t:c~ hoi. ocrvptTioNU, safety and health HAZARDS VICTIM'S RIGHTS M) In Oejotral.--Section 29 is amended to read as lollows: SEC. ?). l-CCITinor AL - METY AND HEALTH HAZARDS VICTIM'S RIGHTS "(a) Dkttnition.--As used !n this station, the term "victim" means-- "(l) an employee wno has sustained a work-related injury or illness which Is the subject of an inspection or Investigation conducted under section Otiv. or "(2) a family member of an employee, if-- "(A) the employee is killed as a result of a work-related Injury or illness which is the subject of an inspection or investigation conducted under section 8<i); or "(B) the employee sustains a work-related injury which is the subject of an inspection or investigation conducted under section 8li). and the employee cannot reasonably exercise the rights of the employee under this section. "(b) Victim's Rights.--Notwithstanding any other provision oi law. on request, a victim shall be afforded the right to-- "(1) meet with the Secretary or an author ized representative regarding the inspection or investigation conducted under section &i) concerning the employee's Injury, mw or death, prior to the Secretary's decision to issue a citation or take no action: and "(2) receive at no cost, copy of any cita tions or reports, issued as a result of the in spection or investigation, at the time of Issu ance. and be informed of any notice of con test filed under section 10 that shell be ac companied by an explanation of the rights of employee and employee representatives to participate in proceedings conducted under section 10. For the purposes of section 10, a victim shall have the same rights as an employee. "(c) Discussion on Modification or Cita tion.--Prior to entering Into an agreement to withdraw or modify a citation issued as a result of an Inspection of a fatality or seri ous Incident conducted under section 8(1). on request, the Secretary shall provide an opportunity to the victim to appear and make a statement before the parties con ducting the settlement negotiations. **(d) Remedies.--For a violation of this sec tion. In addition to any other remedies that might be available to a victim under Federal or State law. a victim shall be entitled to-- "(1) declaratory relief; (2) Injunctive relief; "(3) any costa Incurred by the victim In se curing the documents referred to In subsec tions <bX2) and (e); and "(4) reasonable attorneys fees and costs. "(e) Notification.--The Secretary shall take reasonable actions to Inform victims of their rights under this section.''. (b) Effect or Amendment.--The amend ment made by subsection (s) shall not be construed to affect the amendments made by section 29 of the Occupational Safety and Health Act of 1970 as such section ex isted on the date of enactment of such Act. TITLE XU--EFFECTIVE DAifi SEC 1301. EFFECTIVE DATE. This Act and the amendments made by this Act shall become effective on the date that Is 90 days after the date of enactment of this Act. Section-by-Ssction Analysis or the Coupusqisivi Occupational Safety and Health Reform Act SECTION 1. SHORT TITLE. The legislation may be cited as the "Com prehensive Occupational 8afety and Health Reform Act". SECTION 1. nnGS AND PURPOSE. Congress finds that despite progress made In reducing the rates of work-related deaths, injuries and expossifflFto toxic substances since 1970, such ratds remain unacceptably high. In addition, employers and employees are insufficiently involved In Joint efforts to identify and correct occupational safety and health hazards, and lack sufficient OSH training; standard-setting, enforcement, and data collection are inadequate: and millions of American workers lack adequate federal occupational safety and health protection. The purposes of the legislation are to in crease the Joint participation of employers and employees In identifying and correcting workplace hazards, to Improve standard-set ting. enforcement and data collection, and to ensure adequate federal occupational safety and health protection for all workers. SECTION S. OSHA AMENDMENTS. The legislation amends the Occupational Safety and Health Act of 1970 ("the Act") <29 U/S.C. section 6S1 et seq.L Title /--Safely and Health Prof/rami - SECTION 101. SAFETY AND HEALTH PROGRAMS. Section 101 requires employers to estab lish snd maintain occupational safety and health ("OSH") programs to reduce or eliminate hazards and to prevent Injuries and illnrssrs to employees. Each program must be In writing, and must provide for (a) identification and correction of hazards, lb) employee training, education, and participa tion in the OSH program (to be considered as hours worked), (c) procedures for re sponding to and investigating OSH Inci dents. (d) designation of an employer OSH representative, and <e> OSH procedures for multi-employer worksites. Within one year of enactment, DOL Is re quired to issue regulations concerning em ployer OSH programs. DOL la authorized to modify the application of this section's re quirements to daises of employers If DOL determines that employees' OSH protection would not be reduced. Thelegislation requires employers to pro vide employee OSH training, including training for new employees and employees who face changed working conditions or modifications in applicable OSH regulations and standards, as well as nni refresher training. OSH committee members (as de scribed In Section 201) must receive special training. Title II--Joint Safety and Health Committee* SECTION SOI. JOINT SAFETY AND HEALTH COMMITTEES. Section 201 requries employers with more then io employees to establish joint em ployer-employee OSH committees. Each committee shall have the right to (a) review the employer's OSH program and OSH records, <b) conduct inspections and employ ee interviews periodically and in response to specific incidents, (c) observe OSHA inspec tions and exposure monitoring by the em ployer. and <d) make advisory recommenda tions to the employer. Time spent on com mittee activities shall be considered as time worked. Although this section requires employers to establish a committee at each of its work sites, DOL is authorized to modify this re quirement for worksites with fewer than 11 employees, multi-employer worksites, and employees who do not work at fixed loca tions. For worksites of between 11 and SO em ployees. the committee must include st least one employee representative. For worksites of between 51 and 99 employees, the com mittee must include at least two employe? representatives. Committees at larger work atites must include an additional representa tive for each additional 100 employees at such worksites (up to a maximum of six). Employer-designated representatives on the Committee are not to exceed employee representatives in number. In non-union set tings. employee representatives are to be se lected from among non-managerial employ ees by secret ballot election. In union set tings. the exclusive bargaining agent sha.i designate such representatives. In mixed settings, each represented group (plus one residual group of unrepresented employees: shall have proportional representation on the committ--e, except that each group of 11 or more employees shall have at least one representative. DOL is required to Issue final regulations regarding OSH committees within one year of the effective date of the legislation. DOL's regulations must provide procedures (where applicable) for election of employee representatives, and require employers to make necessary facilities and materials available to commlttees. WV 000007550 S 118 i2 CONGRESSIONAL RECORD -- SENATE August 1, 1991 Title til OSHA--coverage SECTtOWBOl. PUBLIC EMPLOYEES Section 301 provides comprehensive OSHA coverage to all federal, state and local employees lor the first time. section aoa. aeotRQ jurisdiction to oma FEDERAL AGENCIES OSHA currently does not apply to private sector employees covered by another federal agency's OSH regulations. Section 302 re places this rule, requiring POL to certify, for each specified hazard as to which it wishes to cede jurisdiction, that another federal agency has an equally effective standard or regulation regulating that hazard. (Employees covered by MSHA, how ever, are expressly exempted.) This section also sets forth procedures which permit af fected individuals to seek a rescission of a certification before DOL. as well as Judicial review of DOL certifications and refusals to rescind & certification. SECTION 903. COVERAGE Of DOE NUCLEAR facilities Section 303 specifically extends OSHA coverage to federal nuclear facilities under the Jurisdiction of the Department of Energy. SECTION JO-i. CLARIFICATION OF GENERAL C'CTY CLADSE Section 304 mokes Clear that OSHA's gen eral duty cltue extends r.o aiulU-cmoicyer worksites, where hazardous venditions of practices may affect net only the employer's own employees but also other employees working at the site. Title IV: OSHA standards SECTION 401. STANDARD-SETTING PROCEDURES Section 401 sets forth procedures regard ing OSHA's standard-setting process. First, If an advisory committee. NiQSH. or EPA recommends tor any interested person peti tions for) the promulgation, modification or revocation cf a standard, DOL must publish a response withir. SO days, and nrist issue a proposed rule within .2 .r.oiitlis unless It concludes that no action is warranted. Following the issuance of a proposed rule, DOL must permit a public comment period of at least 30 days, and muse issue a final rule within *80 days after the comment period or hearing. Section 4Ul &ijo permits aifooted persons to seek judicial review of a decision by DOL not to propose a rule to promulgate, modify or revoke a standard as requested in a rec ommendation or petition. jeh a decision may be set aside i; it is found to be arbi trary, capricious, or an abuse of discretion. Affected persons may also seek Judicial review *1 DOL fails to act witnin. the time periods specUled in this section, to compel DOL to take any action uniawiuily withheld or unreasonably delayed. Finally, Section 401 makes clear that chal lenges to the validity of a standard must be brought either within 60 days of the issu ance of a final rule (as provided under sec tion 6(f) of the Act), or by petitioning for the modification or revocation of a standard through the prccc-ss set forth above. SECTION 403. CONSIDERATIONS IN STANDARD- SETTING Section 402 amends the definition of "oc cupational safety ana health standard" to mean a standard which addresses a sign.ficant health or safety risk by requiring em ployers to adopt practices or processes that most adequately assure, to the extent feasi ble, a safe ana healthful workplace. SECTION 400. RECORDING WORK-RELATED ILLNESSES Section 403 requires DOL standards to provide for recording or reporting of work- related Illnesses determined as a result of medical examinations conducted under such standards. SECTION 404. PUBLIC DISCLOSURE OF STANDASSSEITIMO COMMUNICATIONS Section 404 requires DOL to place all com munications regarding the standard-setting process in the public record. SECTION 40ft. REVISION OF FZRMXSSIBU EXPOSURE LIMITS Section 405 requires NIOSH to evaluate, on a regular basis, whether exposure limits for toxic materials and harmful physical agents should be modified or established. NIOSH must also transmit to DOL, at least every 3 years, recommendations as to expo sure limits which should be modified or es tablished. DOL Is required to publish such recom mendations, allow 30 days for public com ment. issue a proposed rule responding to 5'ich recommendations within 6 months of receiving them, and issue a final rule within l year of Issuance of the proposed rule. DOL must explain its reasons for adopting any proposed or final exposure limit which differs from NIOSH's recommendations. SECTION 40ft. EXPOSURE MONITORING AND MEDICAL SURVEILLANCE STANDARDS Section 406 requires DOL to issue final standards on exposure monitoring and med ical surveillance programs within 2 years of the legislation's effective date. The expo sure monitoring standards must provide for formal exposure assessments, regular moni toring, a written compliance plan to reduce excessive exposures, employee notification of excessive exposures, recordkeeping, and participation of the joint OSH committee. The medical surveillance standards must provide for identification of at-risk employ ees, periodic medical examinations of such employees, notification to employees of ex amination results, certification of health core providers to perform medical examina tions. confidentiality of personal employee medical records, prohibition of discrimina tion against any employee based on exami nation results, recordkeeping, and participa tion of the Joint OSH committee. SECTION 401. ERGONOMIC HAZARDS STANDARD Section 407 requires DOL to issue a final standard on ergonomic hazards within 1 year of the legislation's effective date. The standard must provide for identlficaiton of ergonomic hazards, a program for employ ees exposed to such hazards (Including training and cducnUpwicf such employees), control measures t<r reduce such hazards (including an elleetlve medical management program), recordkeeping, and participation cf the joint OSH committee. SECTION 40ft. ADDITIONAL STANDARDS Section 408 requires DOL to issue certain additional standards by the dates listed below. November 30, 1991, blood beme patho gens. December 31, 1091, permissible exposure limits (update for construction, maritime, and agriculture); electric power; logging; head and foot protection; walking and work ing surfaces; hazardous materials; and motor vehicles. June 30, 1992, cadmium; confined space entry, asbestos (remand): hazardous waste training program accreditation; and methyl ene chloride. December 31, 1992, respiratory protectlopn: 1.3-butadiene; scaffaclds; fall protec tion; and glycol ethen. December 31, 1993. indoor air quality; and longshortng. Title V: Enforcement SECTION SOI. EMFLOTXE PARTICIPATION IN INSPECTIONS Section 501 provides that time spent by an employee accompanying an OSHA repre sentative on an Inspection, as permitted by the Act, shall be treated as hours worked. SECTION 503. IMMINENT DANGER AND SERIOUS VIOLATION COMPLAINTS The Act requires DOL to make a special Inspection upon receipt of a complaint from an employee or employee representative al leging an imminent dahger or a serious vio lation which threatens physical harm, if DOL finds reasonable grounds to believe that such danger or violation exists. Section 502 extends this requirement to imminent dangers and violations DOL learns about from other sources, and makes clear that the complaint may allege a serious violation of either a standard or a provision of the Act. SECTION SOS. NOTIFICATION OF DOL FINDING OF HO REASONABLE GROUNDS Section 503 requires DOL to notify the complainant within 30 days of the com plaint if It concludes that there are no rea sonable grounds to believe that such danger or violation exists. SECTION 504. SPECIAL EMPHASIS INSPECTION PROGRAM Section 504 requires DOL to establish and carry out a special emphasis inspection pro gram targeting high-risk Industries or oper ations, and to report annually to Congress thereon. SECTION SOS. DOL INVESTIGATION OP SERIOUS INCIDENTS Section 505 requires employers to report any work-related death or serious incident (requiring hospitalization of at least two employees) to DOL, and requires DOL to in vestigate such Incidents. SECTION SOft. ABATEMENT PROCEDURES Section 506 revises the Act's abatement procedures by providing a general rule that the period permitted for correction of a vio lation shall begin to run from the date of re ceipt of the citation. An exception allows an employer to delay abatement until the entry of a final order by the OSH Review Commission U an employer contests a cita tion In good faith, unless (a) the employer contests only the proposed penalty or the characterization of the violation, or (b) the violation is serious and presents a substan tial safety or health risk of harm. Section 506 further provides that an em ployer charged with a serious violation which presents a substantial safety or health risk, and thus subject to an abate ment period which begins to run upon issu ance of a citation, may seek a delay or sus pension of such period from the OSH Review Commission. In the event of such a request, the Commission shall expedite the proceeding and may modify the require ment of immediate commencement of the abatement period If It determines that such requirement was unreasonable under the circumstances. This section also requires employers cited for serious, willful or repeat violations to verify to DOL the abatement of such viola tions within 30 days of the expiration of tl. abatement period, to provide appropriate documentary evidence to establish such ve* Lfication, and to post a notice of abatement at the place of the violation. DOL is re qulred to Issue regulations regarding abate ment verification and posting within or.* year of enactment. vvv 000007551 August 1, 1991 CONGRESSIONAL RECORD -- SENATE S 11843 wctiow my. mnortt comm or citations To conform the boats upon which employ ers and employees may contest citations. Section 007 mw clear that employees may do so based on the characterization of the violation (noo-eerlous, serious, willful or re peated). the sections of the Act or regula tions listed as the basis for the citation, or the proposed penalty. section sot. employee participation The Act currently allows employees to participate in OSH Review Commission hearings. Section SOS allows employees to participate in other OSHRC proceedings as well. SECTION sot. EMPLOYEE COHTKST OF DOL- EMPLOYER AGREEMENTS Section 509 requires DOL to notify affect ed employees if it intends to modify or with draw a citation as a result of an agreement with the cited employer. Such employees may challenge the agreement within IS days if it fails to effectuate the purposes of the Act. If DOL rejects the challenge, such em ployees may (within 15 days) seek an OSHRC hearing. DOL is precluded from carrying out the agreement if the OSHRC determines that It would not effectuate the purposes of the Act. section sis. imminent dancers Section S10 requires OSHA Inspectors, upon discovery of s workplace hazard which poses an imminent danger, to notify the em ployer and request immediate abatement of the hazard. If the employer refuses to abate the hazard, the Inspector (upon approval by DOL) may immediately post a notice or tag identifying the hazard as posing an immi nent danger. Employers who fail to abate such a tagged hazard, or remove all employ ees from exposure thereto, shall be fined be tween $10,000 and $50,000 per day for non abatement. In addition, employers are pro hibited from discriminating In any manner against an employee who refuses to perform s duty that would expose him or her to the tagged hazard. SECTION Bll. VIOLATIONS Or OSH PROGRAM AND COMKXTm REQUIREMENTS Section 511 makes clear that DOL may issue citations and smew penalties for viola tions of new sections 27 (OSH programs) and 28 (OSH committees). SECTION SIS. OSSA CRIMINAL PENALTIES Section 512 expands the maximum crimi nal penalties lor violations ol the Act. The maximum imprisonment penalties are in creased as follows: Willful violation that causes death: In creased from 0 months to 10 years (first conviction) and 1 year to 20 years (addition al convictions). Advance notice of an inspection: increased from 6 months to 2 years. False statement: increased from O months to l year. Willful violation that causes serious Injury: a new criminal offense Is created with. maximum imprisonment of 5 years (first conviction) and 10 years (additional convictions). "Serious bodily injury" is de fined to mean bodily Injury that involves a substantial risk of death, protracted uncon sciousness. protracted and obvious physical disfigurement, or protracted loss or Impair ment of the function of s bodily member, organ, or mental faculty. In 1984. the maximum criminal fine limits (ranging from $1,000 to $20,000) for OSHA violations were superceded by the higher maximum criminal fine limits ($250,000 per individual. $500,000 per organization) con tained In the Sentencing Reform Act of 1984 (18 UAC. section 3571). Section 512 clarifies the applicability of theae higher limits to OSHA violations. In addition, this section provides that Individuals convicted of OSHA offenses will be personally liable for any criminal fines nnnrrmrrt against them. ntU VI: Anti-Discrimination Protection SECTION SOL. ANTI-DISCSTM1NATIOM PROVISIONS Section 601 extends the coverage of the Act's anti-discrimination provisions to (a) an employee's reporting ol injuries or unsafe conditions, and (b> an employee's refusal, after first unsuccessfully asking the employ er to eliminate an unsafe condition, to per form duties which the employee reasonably believes would expose him or her to s bona fide danger of Injury or serious impairment of health. Section 801 also revises the procedures for the handling of discrimination complaints. The period for tiling such complaints is in creased from 30 to 180 days following the al leged discrimination. DOL is required to in vestigate the complaint and report findings within 60 days. If DOL issues s preliminary order finding a violation, such order becomes final unless within 30 days a party files objections there to and request a hearing, fn which case DOL U required to issue a final order within 120 days of such hearing. DOL is authorized to (a) require employers to correct violations and reinstate discrimination victims, (b) award back pay. compensatory damages, costs and expenses, and (c) seek Judicial en forcement of final orders if necessary. Af fected persons may seek judicial review In an appropriate U.S. Court of Appeals within 60 days following the issuance of a -final order. Finally, Section 601 provides that the legal burdens of proof set forth In the Whis tleblower Protection Act of 1989. 6 U.S.C. section L221<e), shall apply to adjudication of OSHA anti-discrimination complaints. Title VII: Training SECTION 701. TRAINING AND OUCATIOW Section 701 requires DOL to develop model curricula, training materials and edu cational programs for employees and OSH committee members. Title VIII: Reporting and Data Collection SECTION SOI. DATA COLLECTION Section 801 requires DOL to gather, and make publicly available, data In order to identify (a) high-risk industries, employers, operations, and occupations, (b) causes of Injuries and illnesse^u (criworkers* com pensation costs. DOL fnUst also issue regula tions requiring employers to report work-re lated deaths Immediately to DOL. and to report serious incidents (requiring hospitali sation of 2 or more employees) to DOL within 24 hours. SECTION R03. ILLNESS RECORDS The Act requires employers to keep records and file periodic reports on work-re lated deaths, injuries and illnesses. Section 802 adds to this list illnesses suspected to be work-related, unless the employer makes a reasonable determination that the Illness is not work-related. SECTION 803. ACCESS TO RECORDS Section 803 provides that DOL. HHS, and employees shall have access to employer OSH records. Title IX: NlOSH SECTION CU. HAZARD EVALUATION REPORTS Section 901 requires NIOSH, after receiv ing a request for a determination as to the toxicity of a workplace substance, or the safety or health risk posed by a condition or physical agent, to provide a determination as soon as possible, and to provide an inter im report If It cannot make a determination within 6 months. SECTION ML RESEARCH Section 902 requires NIOSH to Identify major factors contributing to work-related deaths and injuries through accident inves tigations and epidemiological research. SECTION SOS. EMPLOYEE NOTIFICATION PROGRAM Section 903 requires NIOSH to establish a program to ldetniiy and notify employees at Increased risk of suffering work-related deaths, injuries and illmwwa and to make recommendations as to medical surveillance of such employees. SECTION S04. DOL RIGHT OP INSPECTION Section 904 makes clear that NIOSH'i au thority to inspect records extends to Its des ignees and contractors. SECTION OS. NATIONAL SURVEILLANCE PROGRAM Section 90S requires NIOSH to establish s national surveillance program to identify work-related deaths, injuries and Illnesses, and to provide reports on the data collected pursuant to such program to DOL. This sec tion also authorizes HRS to require employ ers to provide such data to NIOSH. SECTION SOS. REDESIGNATION OP NIOSH NIOSH currently operates under the aus pices of the Center for Disease Control. Sec tion 906 provides for the redesignation of NIOSH as s separate agency within the Public Health Service. Title X: State Plans SECTION 1001. STATE PLAN COMMITTEES AND PROGRAMS Under Section 1001, state plans must re quire employers to establish OSH programs and committees at least as effective as those required under this legislation. SECTION 1002. STATE PLAN REQUIREMENTS Under Section 1002. state plans must In clude reporting, anit-dlscrimlnation, and access to information provisions which are at least as effective as those provided under this legislation or other applicable federal laws. SECTION 1003. COMPLAINTS AGAINST STATE PLANS Section 1003 requires DOL to investigate complaints against state plans promptly if It finds reasonable grounds to believe that a state has not complied with its plan. (Com plaints regarding enforcement must be in vestigated within 30 days.) DOL is further required to transmit findings to the com plainant within 30 days of the completion of its investigation. If DOL finds that a state is not in compliance with Its plan, it must so notify such state, and within 30 days the state must Inform DOL of its response. DOL is also required to issue citations for serious violations If the state has failed to do 10. SECTION 1004. WITHDRAWAL OP STATE PLAN APPROVAL Section 1004 provides that If DOL finds reasonable grounds to believe that a state has failed to comply substantially with its plan. It shall give the state 6 months to cor rect any deficiencies. If the state fails to correct such deficiencies within 6 months. DOL shall commence proceedings to with draw approval of such state's plan, unless exceptional circumstances exist. During the pendency of any proceedings to withdraw approval of a state plan, DOL shall exercise concurrent Jurisdiction with the state plan. VVV 000007552 S 11844 CONGRESSIONAL RECORD -- SENATE August 1,1991 section ioos. adoption or fedblu. StAHDAUM Section 1005 provides that when a federal standard is adopted, state plans must either adopt an equally effective standard within 6 months or adopt the federal standard until such time as a comparable standard is adopted. section loos, conforming state flaks Section 1006 penults states 1 year from the effective date of the legislation to bring their plans into compliance with the legisla tion. rule XI: Victims' Rights SECTION 1101. VICTIMS' RIGHTS Section not extends certain rights to em ployees who suffer Injuries or illnesses on the Job. and to the families of employees killed on the Job. If DOL Investigates the in cident, such Individuals are entitled to <a> meet with DOL prior to DOL's decision as to whether or not to issue a citation. <b) re ceive copies of citations, reports, and notices of contest, (c) participate in OSHRC pro ceedings, and <d) meet with DOL and the employer before any settlement Is agreed to. Title XII: effective Date SECTION 1X01. EFFECTIVE DATE Section 1201 provides sn effective date for this legislation 90 days after enactment. Mr. METZENBAUM. Mr. President, I am proud to join with Senator Ken nedy today as an original cosponsor of the Comprehensive Occupational Safety and Health Reform Act. Twenty-one years ago. Congress en acted the Occupational Safety and Health Act with the following pur pose: "To assure so far as possible every working man and woman in the Nation safe and healthful working conditions." Since then, we have made some progress toward achieving that goal. Employers have become more aware of safety and health problems, and many employers have tried to address those problems. But our promise of a safe and healthy workplace for all American workers remains unfulfilled. Two dec ades after passage of the act, injury and death rates remain shockingly high, and have been rising since 1383. The American workplace is becoming a "little shop of horrors." In 1989, the most recent year for which statistics are available, 10.400 workers were killed on the job, an av erage of 40 workers each work day. At this rate, an American worker is killed on the job every 36 minutes. Another 1.700,000 working men and women suffered disabling injuries on the Job in 1989, an average of 6,538 workers each work day. At this rate, a working man or woman in this country suffers a disabling Injury on the job every 13 seconds. Hundreds of thousands more work ing men and women died or became disabled as a result of job-related ill nesses and diseases such as cancer, lead poisoning, and respiratory dis ease. At present, we lack even the data to know how bad this problem really is. This level of carnage is completely unacceptable. These are not just sta tistics--these are our mothers and fa thers. our sons and daughters, our wives and husbands. The fates they are suffering are unspeakably horri ble: they are being crushed by falling walls, killed in fireball explosions, dis membered by machines, asphyxiated by gas, burled alive In collapsing trenches, electrocuted, burned, and crippled or killed by disease. The simple fact is that many of these tragedies are preventable. We must do more to fulfill OSHA's origi nal promise of providing safe and healthy working conditions for every working American. Prior to last year, when the maxi mum civil penalties were increased. OSHA had never been amended. The comprehensive legislation we are in- troducting today is long overdue. It ad dresses a number of major problems with the act and OSHA's enforcement scheme. Prehaps the most fundamental prob lem OSHA faces Is a lack of resources. OSHA has only 1,200 inspectors to en force compliance by roughly 3.5 mil lion employers, providing protection for some 55 million employees. Collec tively, State occupational safety and health agencies have only 1,100 in spectors to enforce compliance by 2.3 million employers, providing protec tion for 34 million workers. These numbers mean that even the most high-risk employers axe not likely to see an OSHA inspector show up to inspect their faciiites. Indeed, as the number of employers and workers subject to OSHA's jurisdiction has grown, the agency's funding has shrank in real dollars, with the agency receiving $248. million in fiscal vear 1989. We must recognize that large in creases in OSHA's funding are unlike ly given our current fiscal problems. OSHA's enforcement strategy will con tinue to be based largely on voluntary compliance by employers and workers. But employers and woikers often lack adequate Information about workplace health and safety hazards and hew best to abate thaflf* The bill we are introducing today will dramatically improve the coopera tive efforts of employers and employ ees to address workplace safety and health issues. First, the bill requires employers to establish occupational safety and health programs to reduce or eliminate hazards, and to prevent injuries and illnesses to employees. Employee training and education will be provided as part of these programs. GSHA is authorised to modify the ap plicability of these requirements to classes cf employers provided that em ployees' safety and health protection is not reduced. The bill also reqircs employers of 11 or more emplolyees to have safety and health committees made up of an equal number of employee and em ployer representatives. In unionized settings, employee representatives are to be designated by the employees' bargaining representative; otherwise they are to be elected by employees. Committees are authorized to review the employer's safety and health pro gram. conduct Inspections, and make advisory recommendations to the em ployer. Many employees refrain from blow ing the wnistle on unsafe conditions for fear of losing their jobs or suffer ing other reprisals. The bill strength ens the act's anti-discrimination provi sion, by adopting protections and rem edies modeled on the Surface Trans portation Act. Employee reporting of unsafe conditions is protected, as well as refusals to work where the employ ee reasonably believes that there is a bona fide danger of injury or serious impairment of health. The bill also revises the procedures for the handling of discrimination complaints, and authorizes OSHA to order reinstatement and assess back pay, compensatory damages and attor neys' fees against violators. In addition to increasing the involve ment and cooperation of employers and employees, wo must also make sure that OSHA gets the most impact in terms of reducing work-related deaths, injuries and illnesses out of every dollar of funding it gets. Two decades of experience have exposed many problems with GSHA's stand ard-setting ptcc-ss and enforcement scheme. This legislation strengthens OSHA's authenty in a number of re spects. OSHA's existing standard-setting process is woerUly inadequate to keep up with the thousands of potentially h&zartio'.s new chemicals and other pnyMcai r..-,enLi introduced into the Amvriran workplace annually. As of G6UA standards rejuiated oniy about iiibstai.ces, fewer than 33 cf which were regulated by comprehen sive ^r.ndr.ru.: providing for such things i-s exposure monitoring ard medicai i-u;\ cid. .-ce. Even wh.cn GrlKA has undertaken to p/ovide a standard icr a given safety or heai*ii br.'s-.l id: response is often inadequate, in i '78, for example, n Presided! fal tcuk force determined that OSHxVs ;3U machine guards standards . c\*::td cn*y 15 percent of the matvuns types then in use. Fifteen years later, that standard has yet to be updat:a. Moreover. ni;any OSHA standard; under development are delayed for years, ror example, OSHA spent 9 years developing a lockout/tagout standard governing protections against the sudden activation of machinery, beginning consideration in 1289 and is suing a final standard in 1889. During that decade of delay, over 1.000 Ameri cans lost their lives from accidents that could have been prevented, t; OSHA's own calculations, had a stand ard been in place. The bill streamlines OSHA's stand ard-setting process, shortening it to roughly 18 months. OSHA is also re- YVV 000007553 August 1, 1991 CONGRESSIONAL RECORD -- SENATE S 11845 cjutred to address certain specific has* ards already on the agency's regula tory agenda--Including exposure moni toring. medical surveillance, and er gonomic hazards--within certain time frames. There are several significant prob lems with the act's hazard abatement procedures. First, employers can delay abatement of a health or safety hazard simply by contesting a citation issued by OSHA. That process can take months or years to complete. The bill would require employers to abate serious violations of the act when a ci tation is first issued U there is a sub stantial risk of harm. Employers seek ing review of the citation in such cases would be entitled to expedited consid eration of the review proceeding. Similarly, if an OSHA inspector finds an imminent danger which could reasonably be expected to cause death or serious injury, the employer need not abate the hazard until the agency obtains a court order. The bill author izes OSHA to "tag" Imminent dangers immediately If the employer refuses to abate them, and to fine employers be tween $10,000 and $50,000 a day for nonabatement. In addition. OSHA does few follow up Inspections to verify abatement, re lying instead on lnverifled employer statements. The bill requires employ ers to provide documentary evidence to verify abatement, and to post no tices of abatement. This bill fl-iso addresses the agency's enforcement through the act's crimi nal provisions. Although OSHA has handed out large penalties in a number of cases--by citing employers on an instance-by-instance approach-- the agency's general practices in as sessing civil penalties and in seeking criminal prosecutions leave much to be desired. For example, in fiscal year 1988, the average assessed civil penalty for a serious violation was only $261. 1 hope that Congress' action last year in raising the limits of permissible civil penalties will produce meaningful fines which fulfill their deterrent pur pose. OSHA's use of the act's criminal '>enalties provisions has been even worse than the i agency's use of civil penalties. In the past 2 decades, ac cording to GAO, the agency has re ferred only 57 cases to the Depart ment of Justice for criminal prosecu tion. The Department of Justice pros ecuted less than half of these cases and obtained convictions in only 14 cases. By comparison, the State of California's OSH agency referred 92 cases for criminal prosecution in 1985- 80 alone, and the State filed charges in 41 cases. Even when OSHA does pursue crimi nal prosecutions, the agency typically seeks minimal monetary penalties. The Department of Justice has con cluded that the Crime Control Act of 1984, which increased criminal fines for willful violations of Federal stat utes to $250,000 for individuals and $500,000 for companies, applies to OSHA violations. Yet it appears that OSHA has yet to seek criminal sanc tions under that law. This bill amends the act to send a strong message from Congress that OSHA must meaningful use of these criminal sanc tions. Nor have OSHA and the Depart ment of Justice sought imprisonment of egregious violators. Not a single em ployer had ever served time under OSHA's criminal provisions until 1989, when a convicted employer served 45 days in prison. The Department of Labor's own acting Inspector general has acknowledged "an spelling lack of criminal enforcement" by OSHA. This bill amends the act to lengthen the maximum allowable sentences. In order to encourage OSHA and the De partment of Justice to make more meaningful use of the act's criminal provisions as a deterrent to violations. Current mMimnnw are very short, al lowing a 6-month maximum for a will ful violation that causes a worker's death. By way of contrast, the maxi mum penalty under Federal law for maliciously harassing a wild burro is 1 year. In addition, this bill for the first time permits criminal prosecution for a willful violation that causes serious bodily injury. Under present law, OSHA cannot seek a criminal prosecu tion against an employer for a willful violation of the act unless a fatality occurs. Thus, no matter how egregious the employer's violation is, no matter how many citations the employer has received in the past, and no matter how many workers are seriously and permanently injured as a result of the employer's actions, the Government cannot prosecute unless a worker dies. OSHA also needs better data to enable the agency to target Its limited Inspection resources more effectively. Currently, OSHA attempts to target high-risk industries for Inspections to make the best use of its resources. For example, manufacturing industries are targeted by their average lost workday injury rates. The construction indus try Is also heavily targeted by OSHA's inspection effort. TJtff because of the small Inspection force, and the size of OSHA's jurisdiction, even employers in these targeted industries are rarely inspected. Moreover, roughly a quar ter of the agency's citations are for nonserloua violations. This legislation requires employers to report all workrelated deaths and all safety and health incidents in which two or more employees are hospitalized, and pro vides for Improved data collection by OSHA and NIOSH, in order to im prove inspection targeting. Finally, this legislation extends the act's coverage in a number of respects. First, a long-standing gap In Federal occupational safety and health law is filled by extending coverage to Feder al, State and local government em ployees. In addition, OSHA is permits ted to cede private sector Jurisdiction to other Federal agencies--(such as FAA--only with regard to particular hazards, and only if the alternative standard is as effective as OSHA's standard. The bill also clarifies that an employer operating at a multiemploy er worksite has a duty to provide a safe workplace not Just to Its own em ployees, but to the employees of other employers operating at the site as well. I am proud to stand here with Sena tor Kennedy as we begin this effort In the coming months, we intend to hold a number of hearings In order to explore these problems, and our pro posed solutions. In greater depth. We hope the administration and the em ployer community will be active par ticipants in this dialog. But let us move swiftly to address these problems, so that we can fulfill Congress's promise made 21 years ago to assure every working American safe and healthful working conditions. With every day we wait, 40 more American workers die, and thousands more are disabled by injury and ill ness. By Mr. DrCONCINI (for him self, Mr. iNOtnrx, Mr. Hatch, Mr. Kennedy, Mr. Leahy. Mr. Bouts. Mr. Gorton, Mr. Gore. Mr. Grasslty, Mr. D'Amato, and Mr. Cranston): S. 1623. A bill to amend title 17, United States Code, to implement a royalty payment system and a serial copy management system for digital audio recording, to prohibit certain copyright infringement actions, and for other purposes; to the Committee on the Judiciary. AUDIO BOMX RECORDING ACT Mr. DkComcihi. Mr. President. I am pleased today to introduce, along with my colleagues Senators Inouye, Hatch. Kennedy. Leahy, Burns. Gorton, Gore, Grassley, D'Amato, Cranston, and Breaux, the Audio Home Recording Act of 1991. This leg islation finally will resolve one of the most difficult and emotional argu ments In copyright law. whether indivlduals'have the right to tape for noncomlnerical purposes, copyrighted ma terial. The copyright issues raised by home taping of sound recordings and the impact on copyright owners, song writers. preformers, music publishers, and musicians have long frustrated those of us in Congress with responsi bility over these matters. The bill that my colleagues and I are introducing today represents an historic compro mise among the parties of this long standing dispute. As one who has struggled with the equities of this troubling issue, I am pleased that an agreement has been reached. I first became involved in the issue of home taping of copyrighted materi al in 1981. At that time, the Ninth Cir cuit Court of Appeals Issued a decision finding that the non-commercial pri vate video taping of broadcast televi sion shows constituted copyright in fringement. I disagreed with the deci sion of the Ninth Circuit and immedi ately introduced legislation to over turn it. It is difficult to believe that the so-called Betamax decision was &n- VVV 000007554 T* TO: Distribution Interoffice Communication FROM: DATE: SUBJ: T. G. Grumbles August 26, 1991 OSHA REFORM LEGISLATION Attached is a copy of a bill introduced by Senators Kennedy and Metzenbaum the first of this month. An SDA summary of the bill is also attached. There is growing pressure to significantly revise the OSHA Act and this bill is a good example of the type of revisions that may occur. I'll keep you informed on the progress of this particular bill. T. G. Grumbles dlj Attachment Distribution: SAFETY DIRECTORS Bruce Trego-Aber, Brent White-Bait, George Williams-Blane, Matt Tonkovich-Hrad, K. L, Fogg-LCCP, R. V. Gantz-LCLAB, Mike LunsfordLCVCM, Chris Markerson-Okc, Greg Lipps-Premiere, R. B. MartinAustin, J. R. Drumwright, J. G. Farrier PLANT MANAGERS R. W. Seymour-Aber, L. R. Bauer^Balt, G. D. wlliams-Blane, J. Pavao-Hmd, J. Friend-LCCP, J. W."*^JSre-LCLAB, P. Carrico-LCVCM, H. D. Garrison-Okc, P. L. Foote-Prem, V. W. Weiss-Austin T. H. Huffman, R. D. Gamblin, L. L. Zimmerman wv 000007555 ) G-12 August 14, 1991 FEDERAL LEGISLATION COMPREHENSIVE OCCUPATIONAL SAFETYAND HEALTH REFORM ACT BILLS TO TARGET "HIGH-RISK" WORKPLACES, IMPROVE HAZARD ABATEMENT PROCESSES & STRENGTHEN CRIMINAL PENALTIES INTRODUCED IN HOUSE & SENATE LEGISLATION. DESCRIPTION: S 1622 - Senators Kennedy & Metzenbaum - 8/1/91 HR 1360 - Representative Ford (D-Michigan), et al - 8/1/91 The Comprehensive Occupational Safety and Health Reform Act (S 1622 and HR 3160) was introduced at a press conference by Senators Edward Kennedy (D-Massachusetts), Howard Metzenbaum (D-Ohio) and Representative William Ford (D-Michigan). Representative Joseph Gaydos (D-Pennsylvania) is one of the 18 other co-sponsors of HR 3160. Among the areas addressed in the legislation are employer and employee participation; standard setting; enforcement; expansion of coverage; research, training and recordkeeping; and state plans. Employee's Role: The legislation would require employers to establish and maintain safety and health programs to reduce or eliminate hazards and prevent injuries and illnesses to employees. Employers with 11 or more employees would be required to establish safety and health committees comprised of equal numbers of employee and employer representatives. The joint committees would be authorized to review the employer's safety and health program, conduct inspections, and make advisory recommendations to the employer. Under the bill, employees would be able to seek Occupational Safety and Health Review Commission review of settlement agreements between employers and OSHA. vvy 00000755O (continued G-12 -2- STANDARDS: ENFORCEMENT: The bill would prohibit employers from "discharging or otherwise retaliating against" an employee who has reported an unsafe condition or because the employee, after seeking to obtain corrective action, has "refused to perform duties that he reasonably believes would expose employees to a bona fide danger or injury or serious impairment of health." The legislation would require OSHA to respond to petitions for health and safety standards within 90 days of receipt, and if the agency finds that a standard is warranted, to issue a proposed rule within 12 months of the petition and a final rule within six months after the comment period or hearing. Would require the National Institute for Occupational Safety & Health to submit recommendations for revisions of permissible exposure limits for toxic substances at least once every three years, and OSHA to respond to the recommendations by issuing a proposed rule within six months and a final rule within one year after receiving the recommendations. Under the bill, OSHA would have to issue standards on a number of health and safety issues within specified time frames. The legislation would require that: a) OSHA establish a special emphasis inspection program to target high-risk industries and operations. b) Employers report all work-related fatalities immediately and all serious incidents resulting in hospitalization of two or more employees withHT54 hours. c) OSHA investigate all such incidents and fatalities. d) Where OSHA determines an imminent danger of death or serious harm to employees, the agency "tag" the hazard and the employer take immediate corrective action. e) Employees refusing to perform work exposing them to such a hazard be protected against discrimination. (continued) vvv 000007557 G-12 -3- COVERAGE: STATUS: The bill would grant OSHA authority to fine an employer failing to take corrective action $10,000 to $50,000 per day. The legislation also would incorporate S 445 (Senator Metzenbaum, 2/20/91), which proposed to increase the maximum criminal penalty available under the act for willful violations that cause death and would authorize criminal penalties for willful violations that cause serious bodily harm. The bill would expand coverage of the act to federal, state and local government employees and to employees working in federal nuclear facilities under the jurisdiction of the Department of Energy. For industries regulated by other agencies, except for mining, the bill would allow OSHA to cede jurisdiction "only if OSHA certifies that the agency has and is enforcing a standard that is as effective as the applicable OSHA standard. State plans would be required to incorporate provisions "at least as effective" as those outlined in the bill. NIOSH would be charged with establishing a program to "identify and notify employees who are at increased risk of suffering work-related injuries and illnesses." It also would be responsible for implementing a national surveillance program to identify and collect data on work-related injuries and illnesses. S 1622 - Referred to Committee on Labor & Human Resources HR 3160 - Referred to Committee on Education & Labor A copy of S 1622 is attached. vvv 000007558 August 1, 1991 CONGRESSIONAL RECORD -- SENATE S11833 The bill takes the OAO approach in fact is that as a nation, we continue to hazards. Second, it would require Joint stead. with one purpose in mind: to provide tough fiscal oversight. There is at least an appearance of a conflict of interest when an agency such as HUD regulates a G8E like Fannie Mae and. at the same time, may want that GSE to take certain actions. An inde pendent agency does not have that on going relationship and can better con centrate on minimizing the risk to Federal taxpayers. At the same time, using a board format allows the regu lator to draw on the expertise of the Federal Reserve System, the Treasury Department, and the agencies with policy expertise. This bill is not perfect. There may be ways to toughen it even further, and I hope the Banking Committee will examine the bill with that pur pose in mind so that the Senate can vote on legislation with the toughest measures possible. GSE's perform critical public policy roles, but they also impose very real and very serious financial risks on Federal taxpayers. I agree with Sena tor Kohl that, for once. Congress needs to fix a roof while the sun is shining--build a tough oversight pro gram. while our GSE's are enjoying good health. I commend Senator Kohl for his leadership in this area and for accom modating my concern for strong com pensation oversight at the GSE's. I urge my colleagues to Join Senator Kohl. Senator Glenn, and myself in working for the passage of legislation this year to strengthen Federal con trol of our GSE's.* 3y Mr. KENNEDY (for himself and Mr. MgTZENBMTM): 3. 1622. A bill to amend the Occupa tional Safety and Health Act of 1970 io improve the provisions of such Act v.ith respect to the health and safety of employees, and for other purposes; to the Committee on Labor and Human Resources. rourantuMStvs occovatiowai. eatctt amp HEALTH UTOUC ACT Mr. President, 20 years ago. Con gress enacted the Occupational Safety and Health Act because an uncon scionable number of workers were pay for the goods we consume and the services we use with the health and the lives of the workers who produce them. As one of the sponsors of the 1970 legislation which created the Occupa tional Safety and Health Administra tion. 1 believed then and I continue to believe that a decent society should not tolerate that kind of human suf fering and tragedy. That la why I am introducing today, wtth my distin guished colleague from Ohio, (Mr. MmBVBAUif] the Comprehensive Oc cupational Safety and Health Reform Act to update and strengthen the 1970 law. When that law originally was en acted, it was a landmark measure--the first comprehensive, nationwide pro gram to prevent workplace injuries and Illnesses. But since that time, employer-employee safety and health committees to be established at work sites with 11 or more employees. The committees would have the authority to review the employer's injury and ill ness records, investigate employee complaints of safety and health haz ards, conduct regular inspections of the workplace, and ***** advisory rec ommendations to correct hazards or alleviate unhealthy working condi tions. Two states--Oregon and Washing ton--already have statutes requiring workplace health and safety commit tees. They are required In several Ca nadian provinces, and in many Euro pean countries Including Germany and Sweden. They also exist In various forms in many non-union and union firms in this country. California has America has changed, and so have the recently enacted legislation requiring jobs that Americans do. We have aJgo employers to have safety and health learned a great deal that we didn't programs. know in 1970, about the nature and The proposals are based on two im causes of occupational injury and dis portant concepts: employee empower ease, and about what needs to be done ment and a workplace approach to oc to more effectively identify and ad cupational safety and health. They re dress workplace safety and health haz flect a reasonable and realistic ap ards. proach to the problems we face in The legislation we are Introducing trying to Improve workplace safety today is Intended to address many of and health In an era of limited govern the weaknesses in the current law ment resources. which have been identified in studies Work-related injuries and illnesses by the General Accounting Office, the are not just a public health issue: they Office of Technology Assessment, and are also an economic issue. A recent the Administrative Conference, and In study by the Rand Institute for Civil oversight hearings conducted by the Committee on Labor and Human Re sources in 1968. Justice found that in 1969, work-relat ed injuries cost the nation $63 billion, or nearly 2 percent of GNP--$31 bil As described more fully in the section-by-section analysis, the bill In cludes provisions to streamline And e peckte the Sinrisrd petting process, to lion in medical and other direct costs, and a whopping $32 billion in lost work time. At a time when the na BQuite better targeting of limited re sources to high-risk workplaces. tion's health care system is in crisis, and when American business is under peed up and improe* .thSv hazard, intense competitive pressure from abatement proems, to strengthen abroad, those figures are cause for se criminal penalties for the most-egro* rious concern. gieus violations of the Act. and-to Above all. it is the human costs that expand coverage qfjUie Act to federal should give us pause, costs that are state and local gomtunent employee*. measured not in numbers, but in shat Of particular significance are new tered families and broken lives--in provisions to shift the focus of the Act blood that is shed, bodies that are from one which relies on inspections mangled, and lungs that are destroyed. and the threat of civil fines to bring With the introduction of this legisla about compliance with workplace tion, we take a major new step toward being killed, injured or made ill as a safety and health standards, to one fulfillment of the promise we made 20 result of workplace conditions. The act which recognises that the objectives of years ago--of a safe and healthful represented a promise by the Govern the Act can never be fully achieved workpace far every working American. ment to millions of working men and unless employers and employees take I urge my colleagues to cosponsor women that we as a country were pre an active role in working cooperatively this legislation and 1 ask unanimous pared to take the steps necessary to to identify workplace hazards and take consent that a section-by-seclion anal "assure so far as possible" a safe and corrective action before injuries or ill ysis and the text of the bill be printed healthful workplace for every working nesses occur. in the Record. American. To encourage that kind of active In There being no objection, the mate Since the, significant strides have volvement, our bill Includes provisions rial was ordered to be printed in the been made in reducing the rate of fa that would significantly increase em Record, as follows: talities from workplace injuries. But more than 10,000 workers still die every year from injuries sustained on the job. and as many as 100,000 die of occupational disease. The percentage of annual workdays lost because of workplace Injuries has actually in creased since the early 70's. The stark ployer and employee involvement In S.16J2 two ways. Be it enacted bp the Senate and House cf First, (t would require employers to Representative* of the United States of develop written safety and health pro 'America ia Congress assembted, grams identifying and addressing SECTION t. SHOBT TITLE. safety and health hazards In the work This Act may be cited as the "Comprehen place, and providing for employee edu sive Occupational Safety and Health cation and training regarding those Reform Act". VVV 000007559 S 11834 CONGRESSIONAL RECORD -- SENATE August 1, 1931 SEC 2. FINDINGS AND PURPOSE. (exl), modify the application of the require and concerning other Information necessary (a) Findings.--Congress finds that-- <l) during the past two decades progress has been made in reducing workplace fatali ties, injuries and exposures to toxle sub stances through efforts of the Federal agen cies, States, employers, employees and em ployee representatives: 12) despite the progress described In para graph (1), work-related Injuries, Illnesses and fatalities continue to occur at rates that ere unacceptable and that Impose a substan tial burden upon employers, employees and the nation In terms of lost production, wage loss, medical expenses, compensation pay ments and disanility; (3) employers and employees are not suffi ciently involved In Joint efforts to Identify and correct occupational safety and health hazards: (4) employers and employees require ments of this section to classes of employers where the Secretary determines that. In light of the nature of the risks faced by the employees of such employers, such e modifi cation would not reduce the employees* safety and health protection. "(3) Worksites.--As used In this section and section 28, the term "worksite' means a single physical location where business Is conducted or where operations are per formed by employees of an employer. "(b> Requirements.--A safety and health l rogram established and carried out under subsection (a) shall be a written program that shall include-- "(1) methods and procedures for Identify ing, evaluating, and documenting safety and health hazards; "(2) methods and procedures for correct ing the safety and health hazards Identified to enable such members to carry out the Ac tivities of the committee under section 28; * "(lii) require that training and education be provided to employees at the time of em ployment and to safety and health commit tee members at the time of selection: and "(lv) require that refresher training be provided on at least an annual basis and that additional training be provided to em ployees and to safety and health committee members when there are changes in condi tions or operations that may expose employ ees to new or different safety or health haz ards or when there are changes In safety and health regulations or standards under this Act that apply to the employer. "(2) No loss or fat.--The time during which employees are participating in train ing and education activities under this sub better training to identify safety and health under paragraph (Ik section shall be considered as hours worked problems: "(3) methods and procedures for Investi for purposes of wages, benefits, and ether (5) Federal agency standard-setting has gating work-related fatalities, injuries and terms and conditions of employment. Such not kept pace with knowledge about safety illnesses; training and education shall be' provided by and health haz^rls; "(4) methods and procedures for providing an employer at no cost to the employees of te> enforcement of occupational safety occupational safety and health services, in the employer.". and health standards has not been adequate to brin* about timely abatement of hazard ous condition* or to deter future violation of occupational health and safety standards: cluding emergency response and first aid procedures; "(5) methods and procedures for employee participation In the Implementation of the TITLE II--SAFETY AND HEALTH COMMIT TEES AND EMPLOYEE SAFETY AM) HEALTH REPRESENTATIVES (7) millions of American workers exposed safety and health program. Including par SEC ML SAFETY AND HEALTH COMMITTEES AND to serious occupational safety and health ticipation through any safety and health hazards are excluded from full coverage committee established under section 2ft; EMPLOYES SAFETY A.ND HEALTH KliPRESENTATIVEsL under the Occupational Safety and Health "(6) methods and procedures for respond (a) In General--Section 28 ls amended to Act of 1970; and ing to the recommendations of the safety read as follows: <B) the lack cf accurate data and Informa snd health committee, where applicable; "SBC la SAFETY AND HEALTH COMMITTEES AND tion on work related fatalities. Injuries and "(T) methods and procedures for providing EMPLOYEE SAFETY ANO HEALTH Illnesses has impeded efforts to prevent safety and health training and education to REPRESENTATIVES. such fatalities, injuries and illnesses. (b) Purpose.--it Ls the purpose of this Act to il) Increase the Jcini participation of em ployers end employees in Identifying and correcting occupational safety and health hazards, by requiring the establishment of employer safety and health programs, joint employer-employee safety and health com mittees, and training and education pro^Tun8) (2) improve and expedite the setting of oc cupational safety and health standards; (3) strengthen Federal and State agency enforcement of violations of safety and health standards; (4) assure that all employees are afforded full coverage and protection from safety and health hazards under the Occupational Safety and Health Act of 1970 or other Fed eral laws: and (5) improve Information and data on work related Injuries. Illnesses and fatalities for purposes of enhancing occupational safety und health. sec. a RkTERLNCCS. Except as otherwise provided, whenever In this Act an amendment or repeal Is ex pressed tn terms of an amendment to, or repeal of. a section or other provision, the i slerence shall be considered to be made to d section or other provision of the OccupaI icnal Safety and Health Act of 1970 (29 V.S.C. C51 et seq.). ":TLE I--SAFETY AM) HEALTH PROGRAMS S*C. 101. SAFETY AND HEALTH PROGRAMS. r.ectlon 27 %29 US.C. 073) Is amended to wad as follows: employees and to members of any safety and health committee established under section 28; "(8) the designation of a representative of the employer who has the qualifications and responsibility to Identify safety and health hazards and the authority to initiate corrective action where appropriate: "(9) in the case of a worksite where em ployees of two or more employers work, pro cedures for each employer to protect em ployees at the worksite from hazards under the employer's control, including procedures to provide information on safety and health hazards to other employers and employees at the worksite; snd '*(10) such other provisions as the Secre tary requires to effectuate the purposes of the Act. "<c) Regulations on Employer Safety amd Health Programs.-- "(1) General regulatioxr-"(A) EsTASU8Hti3iT-Not later than 1 year after the effective date of this section, the Secretary shall promulgate final regula tions concerning the establishment and Im plementation of employer safety and health programs under this section. "(B> Trahtxno and education.--Regula tions promulgated under subparagraph (A) shall include provisions for the training and education of employees, and of safety and health committee members, as required under subsection (bxft). Such regulations shall-- "(I) provide for the training and education of employees. Including safety and health committee members. In a manner that Is readily understandable by such employees, "(a) Requirement.--Each employer of not less than li employees shall provide for the establishment of safety snd health commit tees and the selection of employee safety and health representatives in accordance with this section. *(b) Safety and Health Committees.-- "(1) In general--Each employer covered by this section shall establish a safety snd health committee at each worksite cf the employer, except that the Secretary mr.y. by regulation, modify the application cf this paragraph to-- "(A) an employer whose employees do not primarily report to or work at a fixed loca tion; "(B) worksite? at which less than eleven employees of a covered employer are em ployed; or "(C)'Voriisites wh-.-re employees of more thin one employer are employed. Each employer required to establish a safety and health committee under this sec tion shall, pursuant to regulations promul gated by the Secretary, enable such commit tee to exercise the rights described in this section. "(2) Membzrzrzf.--A committee estab lished under paragraph (1) shall consist of-- "(A) the employee safety ar,. nc&Jtn rep resentatives elected or appointed under sub section (c)(2); and "(B) as determined approprii.t'* by the em ployer, employer representatives, the number of which may not exceed the number of employee representatives de scribed In subparagraph (A). "(3) Chairpersons.--A committee estab - >:r. 27. SAFETY AM) HEALTH PROGRAMS concerning safety and health hazards, con lished under paragraph (!) ;.nail be co- "i a) Establistucsnt or Program.-- trol measures, the employer's safety and chaired by-- 11 In central.--Each employer shall, in health program, employee rights and appli "(A) a representative selected by the em r-vordance with this section, establish and cable laws and regulations; ployer; and rvry out a safety and health program to "(li) provide for the training and educa "(B) a representative selected by ilv.' em reduce or eliminate hazards and to prevent tion of safety and health committee, con ployee members of such committee. In iurles and illnesses to employees. cerning methods and procedures for hazard "(4) Rights.--A committee established Modifications to safety and health recognition and control, the conduct of under paragraph (1) shall have the right, programs.--The Secretary may, pursuant to worksite safety and health Inspections, the within reasonable limits and in a reasonable regulations promulgated under subsection righte of the safety and health committee. manner, to-- 000007560 vvv August 1, 1991 CONGRESSIONAL RECORD -- SENATE S11835 "(A) review any safety and health pro* gram established under section 37 by the employer: "(B) review Incidents involving work-relat ed fatalities. Injuries and Illnesses and com plaints regarding safety or health hazards by employees; "(C) review, upon the request of the com mittee or upon the request of the employer representatives or employee representatives nonmanagerta) employees of the employer st the worksite during the year surfing Jan uary 1 was more than 10, but lees than 80; "(B) two employee safety and health rep resentatives where the average number of nonmanagerlal employees of the employer st the worksite during the yesr mng Jan uary 1 was more than 80, but lea thm^ 100: "(C) an additional employee safety and health representative for each additional not Intended to alter or affect such rights and remedies. <b) Errecr op AiommrT.-The amend ment made by subsection (a) shall not be construed to affect the amendments made by section 38 of the Occupational Safety and Health Act of 1970 as such section ex isted on the date of enactment of such Act. TTTLK ID--COVERAGE of the committee, the employer's work 100 such employees at the worksite, up to a SEC ML EXTENSION OP COVXEAG1 TO PUBLIC EM Injury and illness records, other than per maximum of six employee safety and health norm sonally Identifiable medical information, and other reports or documents relating to occupational safety and health; "(D) conduct inspections of the worksite at least once every 1 months and In re sponse to complaints regarding safety or health haards by employees or committee members; /(E) conduct interviews with employees in conjunction with Inspections of the work site; "(F) conduct meetings, st least once every 3 months, and maintain written minutes of representatives, except aa provided In para graph (2XCY, and "(D) where an employer's employees do not primarily report to or work at a fixed lo cation, at worksites at which ten than 11 employees of a coveted employer are em ployed, or at worksites when employees of more than one employer are employed, a number of employee safety and health rep resentatives as determined by the Secretary by regulation. "(3) Selection.--Employee safety and health representatives h*)l be selected by (a) Dxpuimow op Emflotbl--Section 3<5> (38 DAC. 453(8)) Is amended by striking "but does not Include" and inserting "in cluding". (b) Conroaxxwo Ammons.-- (1) Section 19 (38 U.S.C. 468) la repealed. (3) Section 410(b) of title >9, United SUte* Code, Is amended by striking paragraph (7> and Inserting the following new paragraph: "(7) the Occupational Safety and Health Act of 1970 <39 U.8.C. 451 et *eq.)*". SEC Ml APPUCATtOM OP ACT, such meetings; and from among the employer's nonmana 8ection 4(b) (39 UAC. 653<bXl)) is "(O) observe the measurement of employ gerlal employees, as follows amended-- ee exposure to toxic materials and harmful "(A) Where none of the employer's em (1) In paragraph (1) to read as follows: physical agents; ployees at a worksite are represented by an "(1) Where a Federal agency has promul "<H> establish procedures for exercising exclusive bargaining representative, the em gated and is enforcing standards or regula the rights of the committee; ployee* shall elect employee safety and tions affecting the occupational safety or "(I) make recommendations on behalf of health representatives in an election held In health of some or all of the employees the committee, and in making such recom conformity with procedures pursuant to reg within that agency's regulatory Jurisdiction, mendations, permit any member of such ulations promulgated by the Secretary. and the Secretary of Labor determines that committee to submit the separate views of "(B) Where the employer's employees are a standard or regulation as promulgated and such member, or on behalf of the employer or employee representatives on such com mittee, to the employer for Improvements In the employer's safety and health program and for the correction of hazards to employ ee safety or health, except that such recom mendations shall be advisory only and the employer shall retain full authority to manage the worksite; and "(J) accompany the Secretary or the Sec retary's representative during any physical Inspection of the worksite under section *(*>. "(5> Ton roa coxvrrro activities.--The employer shall permit members of the com mittee established under paragraph (1) to take such time from work as Is reasonably necessary to exercise the rights of the com mittee, without suffering any loss of pay or benefits for time spent on duties of the com mittee. "(6) Regulations.--Not later than 1 year represented by a tingle exclusive bargaining representative, the bargaining representa tive shall designate the employee mfety and health representatives "(C) Where the employer's employees are represented by more than one exclusive rep resentative or where some but not all of the employee* axe represented by an exclusive representative, each bargaining unit of rep resented employees (and any residual group of unrepresented employees) shall have a proportionate number of employee safety and health representatives based on the number of employees in each bargaining unit or group, except that each such unit or group of 11 or more employees shall have at least one representative. The selection proc ess shall be conducted In accordance with the provisions of subparagraph (A) or (B) as applicable. "(3) Regulations.--Not later thaw i year after the effective date of this section, the the manner in which such standard or regu lation Is being enforced provides protection to those employees that la at least as effec tive as the protection provided to those em ployees by the Secretary's enforcement of this Act. the Secretary may publish a notice In the Federal Register setting forth such determination and the reasons therefore and certifying that the Secretary has ceded Jurisdiction to that Federal agency with re spect to the specified hazards to which the designated employees are exposed. Such cer tification shall remain in effect unless and until rescinded by the Secretary.'*; (2) by redesignating paragraphs (2) through (4) as paragraph (5) through (7). respectively; and O) by Inserting after paragraph (1). the following new paragraphs: "(3) The Secretary shall, by regulation, es tablish procedures by which any affected after the effective date of this section, the Secretary shall promulgate regulations con person..may petition the Secretary to re Secretary shall promulgate final regulations cerning safety and health representatives. scind a certification under paragraph (1). for the establishment and functioning of Such regulations shalL Include provisions Upon receipt of such a petition the Secre safety and health committees under this concerning-- ** tary shall investigate the matter and shall, section. Such regulations shall include pro "(A) the number or employee safety and within 90 days after receipt of the petition, visions concerning-- health representatives where an employer's publish a derision with respect to the peti "(A) the establishment of such commit employee* do not primarily report to work tion in the Federal Register. tees by an employer whose employees do at a fixed location; "(3) Any person who may be adversely af not primarily report to or work at a fixed lo "(B) the number of employee safety and fected by a decision of the Secretary certify cation; health representatives with respect to work ing that the Secretary has ceded Jurisdic "<B> the establishment of such commit sites at which less than 11 employees of a tion to another Federal agency pursuant to tees with regard to worksites at which less covered employer are employed; paragraph (1), or by a decision of the Secre than 11 employees of a covered employer "(C) the number of employee safety and tary denying a petition to rescind such a are employed, health representative* at worksites where certification under paragraph (2), may at "(C) the establishment of committees at employees of more than one employer are any time prior to the 40th day after such worksites where employees of more than employed; and decision Is published In the Federal Register one employer are employed; and "(D) the selection and election procedures file a petition challenging such decision "(D) the employer's obligation to enable for employee,safety and health representa with the United States court of appeals for the committee to function properly and ef tives. such election procedures to provide the circuit wherein such person resides or fectively, Including the provision of faculties for a fair election by secret ballot and pro has his or her principal place of business, sxid materials necessary for the committee tect employee's equal rights to participate for Judicial review of such decision. A copy to conduct its activities, and the mainte in the election without being subject to pen of the petition shall be forthwith transmit nance of records and minutes developed b; alty, discipline. Improper interference or re ted by the clerk of the court to the Secre the committee. prisal. tary. The Secretary's decision shall be set "(c) Emtlotxs Satitt and Hxaltk Refu- "<d> Asorional Riant*.--The rights and aside if found to be arbitrary, capricious, an SEMTATXVEE.-- remedies provided to employees and em -abuse of discretion, or otherwise not In ac "(1) Za GKiraaAX.--Safety and health com ployee safety and health representatives by cordance with law. mittees established under this section shall this section are in addition to, and not In "(4) Nothing tn this Act shall apply to include-- lieu of, any other rights and remedies pro working conditions covered by the Mine "(A) one employee mfety and health rep vided by contract, by other pnnrkdoim of Safety and Health Act of 1977 <30 U-S.C." resentative where the average number of this Act or by other applicable law, and are 801 et seq.kM. VVV 000007*61 *. S 11836 CONGRESSIONAL RECORD -- SENATE August lf 1991 SEC SSL APPLICATION OF OSRA TO DOB NUCLEAR propriate United States court of appeals, SBC MR REVISION OP PERMBS1BUI EXPOSTRB FAC1UT1IS. acting under this subsection or under sub LIMITS. Ptranpb (6) of section 4(b) (20 UAC. section (h).*; and Section 6 (29 U.S.C. 655) (as amended ' 653<bX2)) (as redesignated by section (3) by adding at the end thereof the fol section 401(d)) Is further amended L. 302(2)) is amended to read as follows: "(8) Notwithstanding paragraph (1) or any other provision of this law, this Act shall apply with respect to employment per* formed In the Federal nuclear faculties under the control or Jurisdiction of the Do* p&rtment of Energy.**. SEC 3M. EXTENSION OP EMPLOYEE DUTIES TO ALL EMPLOYEES WORE1NC AT A PLACE OP EMPLOYMENT. Paragraph (1) of section 8(a) (29 U.8.C. 654<aMD) is amended to read as follows: "(1) shall furnish employment and a place of employment which are free from recog nised hazards that are causing or are likely to cause death or serious physical harm to the employees of the employer or to other employees at the place of employment.**. TITLE IV--OCCUPATIONAL SAFETY AND HEALTH STANDARDS lowing new subeection: M(hXl) Any person who may be adversely affected by a determination by the Secre tary under subsection (b)(3) not to propose a rule promulgating, modifying, or revoking i standard may at any time prior to the ex piration of eo days after such determination is published to the Federal Register file a petition seeking review of such determina tion with the United 8tates court of appeals for the circuit whereto sueh person resides or has his or her principal place of business. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary*! determination shall be set aside if found to be arbitrary, capricious, an abuse ot discretion, or other wise not In accordance with law. "(2) Any person who may be adversely af fected by a failure ot the Secretary to take adding at the end thereof the following new subeection: "(1) In addition to other health and safety standards promulgated under subeection (b), the Secretary shah, In cooperation with the Secretary of Health and Human Serv ices, modify sad establish exposure limits lor toxic materials and harmful physical (bx&),agents on a regular basis. In accordance with the requirements of subsection to the following manner: "(1) The Secretary of Health and Humcn Services, acting through the National Insti tute. for Occupational Safety and Health, shall regularly evaluate available scientific evidence, data and Information to determine if exposure limits for toxic materials and harmful physical agents promulgated under subsections (a) and <b) should be modified SEC 491. TIMEFRAMES POE SETTING STANDARDS. any action required by this section within or established to protect exposed employees (a) Recommendations and Petitions for the time period prescribed by this section against material Impairment of health or Staitdap.ns.--Paragraph (2) of section 8(b) may at any time after sueh period of time functional capacity. Such evaluations shall <29 U.S.C. 655(b)(2)) Is amended to read as has elapsed file a petition for review stating Include a review of the scientific literature, follows that such action has been unlawfully with standards of private and professional orga "(2XA) If the Secretary receives a recom held or unreasonably delayed. Such petition nizations, national consensus standards, mendation of an advisory committee, the may be filed with the United States court of standards adopted by other countries, and Secretary of Health and Human Services or appeals for the circuit wherein such person recommendations ot State and Federal the Administrator of the Environmental resides or has his or her principal place of agencies. Protection Agency or a petition from an In business. A copy of the petition shall be "(2) Not less than once every 3 yevra tf terested person that sets forth with reason forthwith transmitted by the cleric of the Secretary of Health and H'/iran Servl.-s.. able particularity the facts that the person court to the Secretary. The reviewing court acting through the National Institute claims establish that an occupational safety shall compel the Secretary to take any Occupational Safety and Health, shai! de rr health standard should be promulgated, action that Is found to have been unlawfully velop and transmit to the S-.'cretary recom modified or revoked, the Secretary shall, withheld or unreasonably delayed. In decid mendations identifying toxic materials and r.ot later than 90 days after receipt of such ing whether to compel such action the court harmful physical agents, if any, for ahi.l. recommendation or petition, publish In the shall consider whether the Secretary's fail exposure limits should be modified or estab Federal Register a response stating whether ure to act Is consistent with the time limits lished to protect employees hom loaun. the Secretary Intends to publish a proposed set forth In this section. The Secretary's impairment of health or functional capa- rule promulgating, modifying or revoking desire to confer with, or to receive approval ity. For each such material or agent, th- such standard. from any other Federal agency or Federal recommendation shall include a surgeon "(B) If the response of the Secretary executive official, shall not Justify the with permissible exposure limit, the basis for the under subparagraph (A) states that the Sec retary does not Intend to publish a proposed rule, the Secretary shall set forth the rea sons for that decision. In all other cases, the Secretary shall, not later than 12 months after the receipt of a recommendation or pe tition under subparagraph (A), publish In the Federal Register a proposed rule pro mulgating, modifying or revoking the stand ard discussed In the petition or recommen dation/*. (b) Procedure for Comment and Hear ing.--Paragraph (3) of section 6(b) (29 U.S.C. 855(bX3)) Is araended- (1) by redesignating such paragraph as s lbparagraph (B> of paragraph (3); and (2) by inserting before suds subparagraph, as so redesignated, the following new sub paragraph: "(A) Where information developed by or submitted to the Secretary Indicates that a rule should be proposed promulgating, modifying, or revoking an occupational safety or health standard, the Secretary snail publish such a proposed rule in Use Federal Register and shall afford Interested persons a period of at least 30 days after holding or delaying of action by the Secre tary. except where such consultation or so licitation of approval Is required by Federal law.". SBC MS. BASIS FOR STANDARDS. Paragraph (8) of section 3 (29 U.S.C. 852(8)) Is amended to read as follows: "(8) The term 'occupational safety and health standard* means a standard that ad dresses a significant risk to the safety or health of employee* by requiring condi tions. or the adoption or use of one or more practices, means, methods, operations, or processes that MtSF adequately assure, to the extent feasible, safe and healthful em ployment and places of employment,". SBC MS. RECORDING Of WORK RELATED ILLNESSES. Section 6(bX7> (29 U.S.C. 6&S(bXT)) Is amended by Inserting after the third sen tence the following new sentence*. "The standard shall also prescribe requirements for recording or reporting a work-related ill ness determined as a result of a medical ex amination or test conducted under the standard.". suggested exposure limit avid, where i>vi.l able. Information on feasible control hsm.-.- urea. "(3) Not later than 30 days after Pie rv ceipt of such recommendations, the Swv tary shall publish such recommendation* on exposure limits in the Federal Roister provide a period of 30 days for public cr>m ment. The Secretary shall evaiuacc r?c ommendatlon} and public coTunenM ar..i not later than 6 months after the receipt of guch recommendations, shall cu'-Jsh a r*' > posed rule to maintain, modify or establish exposure limits for each toxic a:: I harmful physical agent as to which the Fn- retary cf Health and Human Services has recommended that exposure Lmlla be ru'.J; fled or established. If a prey-'sed expos.irv. llmlt Is net the same as t`ic sveo^'v** :!:aU suggested by the Secretary cl ami Human Services, the Secretary ili+li r.touin why the suggested limit is not b-ing p.u posed. "(4) Not later than 1 year after the purti cation of the proposed exposure limits, the Secretary shall issue a final butncuud and publication to submit written data or com SBC 4S4. PUBLIC DISCLOSURE OP ALL COMMUNP such standard shall be subject to the re ments.". CATIONS ON STANDARDS. quirements of subsection (bX5). If a tir.ai (c) Tims Frame for Issuinb Rules.--Sec tion 6(bX4) (29 UAG. 855(bX4)) la amended by striking "sixty days'* both places such ap pears and Inserting "180 days'*. Section 8(b) (29 UAC 855(b)) Is amended by adding at the end thereof the following new paragraph: *`(9> The Secretary shall place all written exposure limit is not the same as the expo sure limit suggested by the Secretary of Health and Human Services, the Sevtutary shall explain the reasons that the suggested <d) Review of Secretset's Fah/uri or Re fusal To Issue Rules.--Section e (29 US.C. 615) la amended-- (1) by adding at the end of subsection (f) comments and communications, and a sum mary of all verbal communications, with parties outside the Department of Labor (including communications with other gov exposure limit Is not being adopted. "(5) In addition to the periodic review cf permissible exposure limits required by thi. subsection, the Secretary shall also estab the following new sentence "Judicial review ernment agencies), regarding the promulga lish or modify exposure limits for toxic ma of the validity of an occupational safety and tion, modification or revocation of a stand terials and harmful physical agents when health standard may be obtained exclusive ard under this section, to the public ever such action Is warranted, pursuant to ly through a petition for review In the ap record,**. subsections (bXS) and (gk~. -- VVV 000007562 S 11838 CONGRESSIONAL RECORD -- SENATE August J, 1991 ation and tbe tKuober of enforcement per tion's provision that the period for the cor whether such employee or representative sonnel required for such inspection*. rection of the violation shall run from the has previously elected to participate In the '*(3) Inspections conducted under this sub date of the receipt of the citation, it the prorc rutin-- shall have the right to file a section shall be In addition to other inspec ffnwmiMifln determines, based on a consid notice with tbe Secretary alleging that the tion* conducted under this Act. eration of the nature of the violation, that proposed agreement fail* to effectuate the *'<4) The Secretary shall annually submit tbe nature and degree of risk poind to em purposes of this Act, and stating the re a report to the Concresa on the special em ployees by the employer's refusal to under spects to which it falls to do so. phasis inspection program as part of the take prompt correction of the violation, and "(3) Upon receipt of a notice filed under Secretary's annual report required under the extent of any Irreparable injury the em paragraph (2). the Secretary shall consider section 26 which shall include the Informa ployer would Incur by undertaking como the matter, and if the Secretary determines tion on inspections described in paragraph tion of the violation during the pendency of to proceed with the proposed agreement, (2) tliat were carried out in the preceding review proceedings, that such provision la shall respond with particularity to the and current year.1'. unreasonable In the circumstances.**. statements presented to that notice. SBC. &. INVESTIGATIONS OF FATALITIES AND 8E. (c) Penalties.-Section 17(d) (39 UAC. "(4) Not later than 15 working days fol Riot'S INCIDENTS. 666(d)) Is amended by striking out "(which lowing the Secretary's response provided Section 3 (29 U.S.C. 657) (as by period shall not begin to run until the date pursuant to paragraph Ok the employee or section 504) is further amnrfnrf by adding of the final order of the Commission In the representative of employees shall upon at the end thereof the following new subsec case of any review proceeding under section filing a petition for sendee with the com- tion: 12 initiated by the employer to good faith mission have the right to a hearing as to "(1X1) The Secretary shall Investigate any and not solely for delay or avoidance of pen whether adoption of the proposed agree worfc-rels'-d fatality or serious incident. alties>~. ment would effectuate the purposes of the "(2} li a fatality or serious Incident occurs (d) Vaincation or Abatement.--Section Act, Including a determination as to wheth in a place of employment covered by this 10 (as amended by subsection <b>) is further er the proposed agreement would adequate Act. the emoloyer shall notify the Secretary amended by adding at the end thereof the ly abate the alleged violations. of the fatality or serious Incident and shall following new subsection: '*(6) If the Commission determines that a take appropriate measures to prevent the "(eXl) Each employer to whom a citation destruction or alteration of any evidence for a serious, willful or repeated violation that would assist in Investigating the fatali has been issued under section 9 shall verify proposed agreement faDs to effectuate the purposes of tbe Act, the proposed agree ment shall not be entered as an order of the ty or serious incident. the abatement of such violation to writing Commission, nor shall the citation be with "(3) As used in this subsection, the term to the Secretary not later than 30 daya after drawn or modified in accordance with the 'serious incident' means *n Incident that re the period for the correction of the viola proposed agreement.". sults In the hospitalization of two or more tion has expired, with appropriate documen SfiC SIR IMMINENT DANGER INSPECTIONS. employees. SEC 64*. AHATEMENT OF SBIUOtiS HAZARDS CURING EMPLOYER CONTEST*. (a) Citations.--Section 9(a) (29 DAC. 656(a)) Is amended by inserting after the third sentence the following new sentence: "If the Secretary or an authorized repre sentative of the Secretary believes that an alleged violation is serious <uui presents such a substantial risk to the safety or health of employee* that the initiation of review proceedings should not suspend the running cf the period for the correction of the violation, the citation shall so state.". (b) Citations and SwroacaMPtr.--Section 10 (29 U.S.C. 659) is amended-- (1) in subsection <b). by striking out "(which period shall not begin to run until tary evidence. Each such employer >n prominently post, at or near each place that a violation referred to In the citation oc curred, a notice that the violation has been abated, and shall make available to employ ees and employee representatives for Inspec tion a copy of the verification of abatement provided to the Secretary pursuant to this subsection. '(2) Not later than 1 year after the effec tive date of this subsection, the Secretary shall promulgate final regulations regarding the requirements of this subsection. Includ ing provisions concerning-- "(A) the documentary evidence required to verify abatement of a violation: and "(B) the posting of notice of abatement of a violation.". (a) Correction of ComirrxoMa.--Section 13 (29 C.S.C. 662) is amended-- (1) by striking out subsection icy, (2) by redesignating subsections (a) and <b> as subsections (b) and (c), respectively: and (3) by inserting before subsection tb>. as so redesignated, the following new subsection: "(sKl) If any representative of the Secre tary determines, on the basis cf an inspec tion or investigation under this section, that a condition or practice in a place of employ ment is such that an imminent danger to aalety or health exists tiiat could reason ably be expected to cause death or serious physical harm or permanent unpairment oi the health or functional capacity of employ ees If not corrected immediately, the repre the entry cf a fir.al order by the Commis SBC UR RIGHT TO CONTEST CITATIONS AND PEN- sentative of tbe Secretary 3hail so inform sion in the esse of any review proceedings ALTUM. the employer and affected employees end under this section initiated by the employer The first sentence of section 10(c) (39 shall request that the condition or practice in good faith and not solely for delay or UJ3.C. 059(c)) is amended by inserting after be corrected immediately or that employees avoidance of penalties)''; and "files a notice with the Secretary" the fol be immediately removed truta exposure to (2) by sddfcg at the end thereof the fol lowing*. "alleging that the citation falls such danger. lowing new subsection: properly to designate the provisions of the "(2> If the employer refuses to cempiy "(d)(1) Except 'vs provided in paragraphs Act, standard, rule, regulation or order that with a request under paragiaon (1), the mp (2) and (3), the period permitted for the cor have been violated, or that the citation fails resentative of the Secretary snail consult by rection of a violation shall begin to run properly to desigotty^heryiolatlon as seri telephone or similarly direct medium ol from the date o! the receipt of the citation. ous. willful or repeated, or that the pro- communication with the Secretary or the "(2) If the employer Initiates timely posed'pen&lty is not adequate, or". Secretary's designee to determine whether review proceedings under this section in SBC. MR RIGHT OF C1IF1.0YEE REPRESENTATIVES notice should be posted to the workplace which the employer contests matters other than the proposed assessment of penally or characterization of the violation and the TO PARTICIPATE IN OTHER PROCEED. INC*. The last sentence of section 10(c) (39 pursuant to paragraph (3). "(3) If tbe Secretary or the Secretary* designee so authorises, the i er,-*sentativc ol proceedings are Initiated by the employer In Ufi.C. 659(c)) la amended by Inserting after the Secretary shall immediately cause good faith and not solely for delay, the "participate as parues to hearings" the fol notice to be posted In the womplace Uteuti- period permitted for the correction of * vio lowing. "or other proceedings conducted". fytog the equipment, process or practice lation small, except ss provided in para SBC MS. OBJECTIONS TO MODIFICATION OP CITA that is the source of the imminent danger. graph (3). net begin to run until the entry TIONS. Such notice shall take the form of a tag or of a final order by the Commission. Section 10 (29 UmS.C. 659) (as amended by other device that will be seen by employees "(3) If the citation states that the viola section 506) is further amended by adding at who might otherwise be exposed to uie dwv tion Is serious and presents such a substan the end thereof the following new subsec gerous equipment, process or practice. The tial risk to the safety or health of employ tion: notice shah be removed only uy tbe Secre ees that the initiation of review proceedings "(fXl) If the Secretary intends to with tary or a representative of the Si*creUry. shall not suspend the running of the period draw or to modify a citation as a result of "(4) The fact that such notice has boeii for correction of the violation and if. simul any agreement with the cited employer, the posted shall be noted in any citation iu>u.:0 taneous with initiating timely review pro rules of procedure prescribed by the Com pursuant to section 9 with respect to the ceedings under the citation, the employer mission shall provide for prompt notice to hazard involved. files a statement asserting that the period affected employees or representatives of af '*(5) No person shall discharge or to auj for correction of the violation should be sus fected employees, and that such notice in manner discriminate against any employee pended during suih proceedings, the Com clude the terms of the proposed agreement. because such employee has refused to per mission shall expedite the consideration and "(2) Not later than 15 working days after form a duty that would expose the employ decision of tbe employer** review proceed the receipt of the notice provided to accord ee to tbe condition or a practice that has ing. In Us decision resolving that proceed ance with paragraph (1). any employee or been identified as the source of Imminent ing, the Commission may modify the cita representative of employees, regardless of 'danger by a notice posted pursuant to para- WV 000007563 August A 1991 CONGRESSIONAL RECORD -- SENATE S 1183? SEC 4M. EXPOSURE MONITORING AND MEDICAL in cooperation with the Secretary of Health "(3) Not later than December 31.1991, the SURVEILLANCE. and Human Oerrioea shall establish criteria Secretary shall Issue final standards con Section 6 (43 U.S.C. 685) (as Amended by sections 401(d) And 408) is further Amended by sddins At the end thereof the following new subsection: and procedures for the certification ol health care providers who conduct medical wwiw.Hiwi. under this ifftlw*- "(F) Provisions to aure the confidential cerning: "(A) permissible exposure limits, upr for construction, maritime and agricultui "(B) electric power generator, transmis- "(JMl) Not later than 3 yean after the ef* ity of personally Identifiable medical infor sioo and distribution: fecttve date of this subsection, the Secretary mation developed under this section. "(O logging operations; shall promulgate final standards on expo ' (O) Provisions to prohibit discrimination "(D> face. head, eye and foot protection; sure monitoring and medical surveillance against employees based oo the results of "(E) walking and working surfaces; programs In accordance with subsection medical examinations and. as appropriate, "(F) hazardous materials; and (b>-- "(2) The standards on exposure monitor ing promulgated under paragraph (l) shall provisions to provide for the protection of the wages, benefits, seniority and other rele vant conditions of employment of employ "(O) motor vehicle inspection, mainte nance and safety. "(3) Not later than June 30,1993. the Sec Include the following: "(A) Requirements for a formal exposure assessment In a case where workers may be exposed to toxic materials or harmful physi cal agents that are subject to standards issued under this section, including toxic materials or harmful physical agents cov ered under section 1910.1300 of title 39. Code of Federal Regulations. (B> Requirements for regular monitoring and measurement of toxic materials or harmful physical agents for which an expo sure limit has been established by the Secre tary or adopted by the employer, where such monitoring and measurements will assist in protecting the health and safety of workers exposed to such toxic materials or harmful physical agents. (C) Reqitiremenla for a written compli ance plan for reducing exposures where ex posures are determined to exceed limits es tablished by the Secretary or adopted by the employer. "(D> Requirements for employees to be ees who are transferred or removed from their Jobs due to the result of medical ex aminations conducted under this section. "(H) Records developed under this subeeetlon shall be maintained and made available according to the gmovlakan of section 1910.30 oltitle 39, Code of Federal Regula tions. "(I) Requlrementa for the safety and health committee eatahllahcd under section 33 to review the employer's medical surveil lance program and to make recommenda tions with respect thereto.M. sac WT. STANDARD ON KBGONOMIC KAZAKHS. Section fl (43 UAC. 658) (as amended by sections 401(d), 408 and 408) Is further amended by adding at the end thereof the following new subsection: "(kXl) Not later than 1 year after the ef fective date of this subsection, the Secretary shall issue a final standard on ergonomic hasards to protect employees from work-re lated musculoskeletal disorders in accord retary ahaB issue final standards on: "(A) cadmium; "(B) confined space entry; "(O asbestos (remand); "(D) accreditation of training for pro grams for hazardous waste operav-'-ns; and "(E) methylene chloride. **(3) Not later than December 31,1993. the Secretary shall issue final standards on: "(A) respiratory protection; "(B) 1.3-butadlene: "(C> scaffolds; "(D) fall protection; and **(E) glycol ether*. "(4) Not later than December 31. 1993. the Secretary shall Issue final standards on: "(A) Indoor air quality, and "(B) safety and health regulations fo' longshortng. "(8) Nothing In this subsection shall b- construed as limiting the Secretary from L< suing additional safety and health stand ards under subsection (b>,'\ notified In writing of exposures above expo ance with subsection (b)(5). TITLE V--ENFORCEMENT sure limits established by the Secretary or adopted by the employer and the steps the employer is taking to reduce exposures. "(E) Requirements for the maintenance of and access to exposure records according to the provisions cl section 1910.20 of title 39, Code of Federal Regulations. "(F) Requirements for any safety and health committee established under section 29 to review the exposure assessment and exposure monitoring program, to observe exposure monitoring, to receive and have access to copieB of assessment and monitor ing results, to review written compliance plans, and to make recommendations with respect to such programs and plans. "(3) The standards on medical surveil lance programs promulgated under para graph (1) shall include the following: "(A) Requirements for an evaluation of employee exposure assessments and expo sure monitoring to identify which employ ees may be at risk of material Impairment of health or functional capacity due to expo sure to toxic materials or harmful physical agents. "(B) Requirements for periodic medical examinations for employees identified to be at risk of material Impairment of health or "(3) The final standard issued under para SEC. Ml. NO LOSS OP EMPLOYEE PAY FOX I.NSPXC- graph (1) shall include the following: -norm. "(A) A requirement for an ergonomics Section 6(e) (29 U.S.C. 687(e)) Is amended program for employees who are exposed to ergonomic hasards. that shall include provi sions for hazard Identification, control measures, medical management, training by Inserting after the first sentence the r lowing new sentence: `Time spent by an ployee on any such Inspection shall deemed to be hours worked for purposes of and education, and employee participation. wages, benefits, and other terms and condi "(B) Requirements for an evaluation of tions of employment.''. Job processes, work station design, rate of work, and work methods to Identify ergono SEC MS. COMPLAINTS mic risk factors that cause or are likely to cause musculoskeletal disorders. "(C) Requirements for control measures to reduce stressors and musculoskeletal dis orders Including engineering controls, new equipment or work organization controls. "(D) Requirements for an effective medi cal management program for musculoskele tal disorders Inducting requirements for Section <8X1)(1> <29 DAC. 657<fXl>> * amended-- (1) In the first sentence, by Inserting "the Act or" after "violation of'; and (2) by inserting after the third sentence the following new sentence: "If the Secre tary. upon notification from any other source determines that there are reasoning grounds to believe that an imminent dancer qualified health care providers, health sur . veillance, appranpjgte magnetsto. treatment, and followup. \ "(E) Requirements for recording muscu loskeletal disorders as an Illness is defined (as described in section 13(a)) or serious vio latlon <as described in section ii(k extr>v? In a place of employment, the Secretary shall Air> make a special Inspection In ac cordance with this section.". under section 6(cX3) and reporting such Ill SEC MX TIMEFRAME FOR RESPONSE nesses to the Secretary. The last sentence of section 8`f)cl> '2? "(F) Requirements for the training and UB.C. 657(1X1)) is amended by Inserting functional capacity due to exposure to toxic education of employees exposed to ergono before the period the following: "not la*- materials or harmful physical agents where such examinations are appropriate to identi fy or to prevent material Impairment to health or functional capacity. "(C) Requirements for the evaluation of the results of medical examinations to de termine If an employee or a group of em ployees are exhibiting Indications of present mic hazards on ergonomic risk factors, con trol measures and the employer's medical management program. "(O) Requirements for employee partici pation in the establishment and Implemen tation of tne employer's ergonomic program through any safety and health committee established under section 38.". than 30 days after the receipt of the request for inspection". SEC SSL MANDATORY SPECIAL G3IFHASI4. Section 8 (29 U.S.C. 657) is amended tv adding at the end thereof the following r.#--* subsection: "(hXl) The Secretary shall establish a;`- : carry out a special emphasis inspection pn> or potential material Impairment of health SEC. MS. TIMETABLE FOR SPECIFIC STANDARDS. gram for conducting Inspections uf indus or functional capacity due to exposure to Section 6 (43 U.S.C. 655) (as amended by tries or operations where existing hazards toxic substances or harmful physical agents. sections 401(d), 406. 406 and 407) Is further newly recognized or new hazards Introduced "(D) Requirements for the notification of amended by adding at the end thereof the into worksites warrant a more .ntens:v employees of the results of medical exami following new subsection: than normal Inspection program. nations in a manner that Is understood by "(1) The Secretary shall issue the follow "(2) The Secretary shall annually rie? the employees. ing safety and health standards under sub nate the industries and operations fur i "(E) Provisions setting forth the qualifica section (bk special emphasis Inspection program ar.u tions for health care providers who may "(1) Not later than November 30,1991, the Identify the number of special emphasis in conduct medical examinations mandated by Secretary shall Issue a final standard con spections that the Secretary plans to con this section. Where feasible, the Secretary cerning bloodbome pathogens. duct in each designated Industry and oper- VVV 000007564 August 1> 1991 CONGRESSIONAL RECORD -- SENATE S 11839 graph (3). The right to refuse to perform by a fine in accordance with section 3871 of gation and determine whether there Is rea such a duty shall te In addition to any other title 18, United State* Code, or by imprison sonable cause to believe that the complaint right to refuse to perform hazardous work ment for not more than 6 years, or by both, has merit and shall notify the complainant that Is afforded to employees by this Act, by standards or regulations Issued pursuant to this Act, by contract, or by other applicable law.". (4) in subsection (b>. as so redesignated, by striking out the tint sentence and Inserting tn lteu thereof the following new sentence: "The United States district courts shall have jurisdiction, upon petition of the Sec retary. to restrain any conditions or prac tices tn any place of employment which pose an Imminent danger as described in except that If the conviction is for viola tion committed after first conviction of such person, punishment shall be by a fine In accordance with section 3671 of title 18. United States Code, or by Imprisonment for not more than 10 yeart, or by both,"; and <4 > by sddins tbe end the (oUowfng new subsection: "(n) If a penalty or fine Is imposed on a di rector. officer, or agent of an employer under subjection (e>, <f>. (g), or (h>, such penalty or fine shall not be paid out of the and the person alleged to have committed a violation of this section of such findings. Where the Secretary has concluded that there is reasonable cause to believe that a violation has occurred, the Secretary shall Awmipr findings with a preliminary order providing the relief prescribed by this subsection. Thereafter, either the person al leged to have committed the violation or the complainant may. within 30 days, file objec tion# to the findings or preliminary order, subsection (a).". assets of the employer on behalf of that In or both, and request a hearing on the <b) Peraltos.--Subsection (e) of section dividual.", record, except that the filing of such objec 17 (29 UJB.C. 660) Is amended-- (lk by Inserting "(1)" after the subsection designation: - (21 by adding at the end thereof the fol lowing new paragraph: "(lk In the event that an employer does not Immediately correct the hazard refer enced In a notice posted under section 13(a) or remove all employees from exposure thereto, the employer shall be assessed a civil penalty of not less than 610,000 and not more than 650.000 for each day during which an employee continue* to be exposed to the hazard. This paragraph shall not apply If the Commission determines that the condition or practice was not of such a nature as to be covered by section 13(a).". SEC 511. CITATIONS AND PENALTIES FOE VIOLA TIONS or section n and section a (b) PzrtwmoN.--Section 3 (39 U.S.C. 682) is amended by adding at the end thereof the following new paragraph: "<15> The term `serious bodily injury1 means bodily injury that Involves-- "(A) a substantial risk of death: "(B) protracted unconsciousness: "<C> protracted and obvious physical dis figurement: or "(D) protracted loss or Impairment of the function of a bodily member, organ, or mental faculty,". <ek Jurisdiction for Prosecution Undo Stats amp Local CanmiAi. Laws.--Section IT (29 DAC. 666) (as amended by subsec tion (a)) Is further amended by adding at the end thereof the following new subsec tion: "(oi Nothing in this Act shall preclude tions shall not operate to stay any reinstate ment remedy contained In the preliminary order. Such hearings shall be expeditiously conducted. Where a hearing is not timely requested, the preliminary order shall be deemed a final order which Is not subject to Judicial review. Upon the conclusion of such hearing, the Secretary shall issue a final order within 120 days. In the interim, such proceedings may be terminated st any time on the basis of an agreenent entered Into by the Secretary, the complainant, and the person alleged to have committed the viola tion. "(B) If. in response to a complaint filed under paragraph (1) or (2). the Secretary determines that a violation of this subsec tion has occurred, the Secretary shall (a Citations.--Section 9(a) (29 US.C. 656(a)) Is amended by inserting ", 27 or 28" arier "section 5**. (b) Penalties.--Section 17 (29 U.S.C. 666) State and local law enforcement agencies from conducting criminal prosecutions In accordance with the laws of such State or locality.". order-- "(1) the person who committed such viola tion to take action to correct the violation: "(li> such person to reinstate the com Is amended-- TITLE Vt--PROTECTION OP EMPLOYEES plainant to the complainant's former posi (1) In subsection <a), by Inserting 27 or PROM DISCRIMINATION tion together with the compensation (In 23" after "section 5": SEC. Ml. ANTIDISCRIMINATION PROVISIONS. cluding backpay), terms, conditions, and (3> In subsection <b), by inserting 28" after "section 8": and (3) in subsection (c), by Inserting 23" after "section 5. 27 or 27 or 8ectlon 11(c) <29 UB.C. 660(c)) is amend ed-- <1) In paragraph (1). by adding before the period the following: ", Including reporting privileges of the complainant's employment; and "(Ui) compensatory damages. If such an order is Issued, the Secretary, at SEC til OSHA CRIMINAL PENALTIES. any Injury. Illness or unsafe condition to tbe the request of the complainant, may assess (a) In GmuL-Section 17 (29 U.S.C. 6:) is amended-- (1) in subsection (e)-- v A) by striking "fine of not more than 310,033" and inserting "fine in accordance -with section 3571 of title 18, United States C'odo,**: (8) by striking "six months" and Inserting 10 years"; (C) by striking "fine of cot more than *20.000" and Inserting "fine in accordance with section 3571 of title 18. United States Code."; *nd (D) by striking "one year" and inserting "20 years"; (2) in subsection (f). by striking "fine of employer, agent of the employer, the safety and health committee or employee safety and health representative'*: (2) by striking out paragraphs (2) and (3). and inserting the following new paragraphs: "(2) No person shall discharge or In any manner discriminate against an employee for refusing to perform the employee's duties because of the employee's reasonable apprehension that performing such duties would result In serious Injury to the employ ee or other employeo. The circumstances causing tbe employee's apprehension of se rious Injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee would con against the person against whom tbe order Is issued a sum equal to the aggregate amount of all costs and expenses (including attorney's fees) reasonably incurred as de termined by the Secretary of Labor, by the complainant for, or tn connection arith. It.; bringing of the complaint upon which the order was issued. "(5KA) Any person adversely affected or aggrieved by an order issued after a hearing under paragraph (4KB) may obtain review of the order in the United States Court of Appeals for the circuit in which the viola tion, with respect to which the order was issued, allegedly occurred, or the circuit in not more than 01.000 or by imprisonment clude that there tea bona fide danger of an which such person resided on the date of for not more than six months," and insert injury or serious impairment of health re such violation. The petition for review must ing "fine in accordance with section 3571 of sulting from the circumstances. In order to be filed within 60 days from the issuance of title 18. United States Code, or by imprison qualify for protection, the employee must the order of the Secretary. Such review ment for not more than 2 years, have sought from his employer, and have shall be in accordance with the provisions oi (1) In subsection (g). by striking "fine of been unable to obtain, corrections of the dr- chapter T. of title 5. United States Code, and not more than 410,000. or by imprisonment for not more than six months." and Insert ing "fine in accordance with section 3571 of title 18. United States Code, or by imprison ment for not more than 1 year,"; M) by redesignating subsections (h) through (1) as subsections <i) through <m>, respectively; (5) by Inserting after subsection <g) the following new subsection; "(h) Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 6, or any regulation pre Constances causing the refusal to perform the employee's duties. "(3) Any employee who bellevm that such employee has been discharged, disciplined, or otherwise discriminated against by any person In violation of this subsection may. within 180 days after such alleged violation occurs, file (or have filed by any person on the employee's behalf) a complaint with the Secretary alleging such discharge, disci pline. or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named tn the complaint of the shall be heard and decided expeditiously. "(B) Whenever a person has failed to comply with an order issued under para graph (4KB). the Secretary shall file a civil action In the United States district court for the district In which the violation was found to occur In order to enforce such order. In actions brought under this subsection, the district court shall have Jurisdiction to grant ail appropriate relief. Including In junctive relief, reinstatement, back pay and compensatory damages. scribed pursuant to this Act, and that viola filing of the complaint. "(6) The legal burdens of proof that pre tion causes serious bodily Injury to any em "(4KA) Not later than 60 days after tbe vail under section 1221(e) of title 5. United ployee but does not cause death to any em receipt of a complaint filed under paragraph State* Code, shall govern adjudication of ployee. shall, upon conviction, be punished (3). the Secretary shall conduct an Investi protected activities under this subsection.". WV 000007565 S 11840 CONGRESSIONAL RECORD -- SENATE August 1, 1991 TITLE VII--OSHA AND NIOSH TRAINING tion is not made within 6 month* of the re 8EC ML ESTABLISHMENT OF NIOSH AS A SETA- AND EDUCATION sec. til oeuA and mom ikamm ACTTvirm () Exfawsxo*.--Section 31 (39 U.8.C. 870) is amended-- (1) In subsection (a) by inserting alter "qualified personnel to carry out the pur pose of this Act," the following; including ceipt of a request, the Secretary h*n pro vide the employer and affected employees with an interim report on the known or sus pected hazards and recommendations for control and an estimate of the time that a final determination will be made.". SEC ML SAFETY SE8BABCH AND EVALUATIONS. HATS AGENCY WITHIN PUBLIC HEALTH SERVKS. The second sentence of section 22(b) (29 DAC. 671(b)) is by Inserting after "The Institute shall be" the following; "es tablished as a separate agency within the Public Health (Service and be". education programs for employees and Section 20<a) (29 U5.G 069(a)) ts amend TITLE X--STATE PLANS members of safety and health committees, as appropriate.": and (2) by adding at the end thereof the fol lowing new subsection: "(d) The Secretary shall develop, directly or by grants or contracts, training materials, model curricula and programs to assist em ployers In providing the training and educa tion required by section 27 and In complying with the standards Issued under section 6.". TITLE VIII--RECORDKEEPING AND REPORTING SEC. Ml. DATA COLLECTED BT SECRETAST. Section 24(a) (29 UJS.C. 673) Is amended-- (1) by Inserting (1)" after the subsection designation: and (2) by adding at the end thereof the fol lowing new paragraphs: ''(2) For the purpose of setting safety and health standards, targeting inspections to Individual establishments, evaluating stand ard setting and enforcement programs, and for other purposes, the Secretary shall col lect information and conduct analyses that Identify-- "(A) industries, employers, processes, op erations. and occupations that have a high rate of injury or lUness; "(B) factors that cause or contribute to in juries and illnesses; and "(C) workers' compensation costs associat ed with the injuries and Illnesses. "(3) The Secretary shall Issue regulations that require each employer covered by this Act to report to the Secretary each work-re ed by adding at the end thereof the follow ing new paragraph: "(8) The Secretary of Health and Human Services shall Identify major factors con tributing to occupational Injuries and fatali ties through accident Investigations, and ep idemiological research.**. SBC ML INFORMATION AND EDUCATION ABOUT OCCUPATIONAL ILLNE88B8. Section 20(a) (29 UB.C. 669(a)) (as amend ed by section 902) is further by adding at the end the following new para graph: "(9) The Secretary of Health and Human Services shall carry out a program to identi fy and notify employees at increased risk of occupational Illnesses, injuries, and fatali ties, including public information and edu cation programs for groups of workers st In creased risk. In carrying out the program, the Secretary shall notify subjects of stud ies conducted or funded by the Secretary who are found to be at Increased risk and shall make recommendations on appropri ate medical surveillance for croups of em ployees at increased risk.". EEC ML CONTRACTOR RIGHTS. Section 20(b) (29 UB.C. 669(b)) Is amend ed by inserting after "Secretary of Health and Human Services" the following: "or the designees or contractors of such Secretary,". SEC. ML NATIONAL SURVEILLANCE PROGRAM. Section 20 (29 U.8.C. 669) Is amended by adding at the end thereof the following new subsection: SEC IM1. STATS PLAN COMMITTEES AND PRO GRAMS. Section 16(c) (29 U-S.C. 667(c)) is amend ed-- (1) by striking "and" at the end of para graph 47): (2) by striking the period at the end of paragraph (6) and Inserting a comma; and (3) by adding at the end the following new paragraph: "(9) provides for the development of safety and health programs, training pro grams. and safety and health committees that are at least as effective as those re quired under section 27 and 28, and". SEC IMS. ACCESS TO INFORMATION; EMPLOYEE RIGHTS. Section 18(c) (29 TTB.C. 667(c)) (as amend ed by section 1001) is further amended by adding at the end thereof the following new paragraph: "(10) provides for reporting requirements, protection of employee rights, and access to Information that are at least as effective as those required under this Act or other Fed eral laws which govern access to Informa tion related to this Act.". SEC IML COMPLAINTS AGAINST A STATE PLAN. Section 18 (29 UB.C. 687) Is amended-- (1) In the third sentence of subsection (e)-- (A) by Inserting after "preceding sen tence" the following: "and except as provid ed In subsections (f), (i) and (J)"; and lated death of an employee of the employer "(fXl) The Secretary of Health and (B) by striking out "(except for the pur Immediately upon knowledge of the employ er. and to report each serious incident that results in the hospitalisation of two or more employees of the employer within 24 hours of the incident "(4) Data collected under this subsection shall be publicly available in s form suitable Human Services, acting through the Nation al Institute for Occupational Safety ms Health, shall (In cooperation with other agencies of the Department of Health and Human Services and the Secretary of Labor) establish a national surveillance pro gram to Identify cases of Ill pose of" and all that follow* through "of this section)'*: and (2) by adding at the end thereof the fol lowing new subsection: "(1X1) If the Secretary receives a written complaint from an employer, employee, or employee representative that a State ts defi (or further statistical analysis.". SEC ML EMPLOYEE REPORTED ILLNESSES. Section 8(CX2) <29 XJS.C. 657(c)(2)) Is amended-- <li by striking "deaths, injuries and ill nesses" and Inserting "deaths and injuries"; and (2) by inserting before the period at the cod the following: and work related Ill nesses and suspected work related Illnesses (Including s work related illness reported by an employee or an employee's physician), unless the employer makes a reasonable de termination that the illness Is not work re lated". SBC SSL EMPLOYEE ACCESS. Section 8(cX2) (29 U5.C. 657(c)(2)) Is amended by adding at the end the following new sentence: "The records and reports re quired under this section shall be made available to the Secretary, the Secretary of Health and Human Services, to employees and to employee representatives-*1. TITLE IX--NIOSH SEC. Ml. HAZARD EVALUATION REPORTS. Section 2CKaX6) (29 UJ3.C. 669<aX6)> Is nesses. fatalities, and serious injuries. In conducting the national surveillance pro gram, the Secretary of Health and Human Services shall coordinate the activities of the Secretary with State health and Federal and State workers' compensa tion agencies. "(2KA) The Secretary jtf Health and Human Services shsilisuect data each year on the number and characteristics of all oc cupational fatalities, selected occupational illnesses, and selected occupational Injurlea "(B) In selecting occupational lilnrsnn end Injuries for the collection of data subparagraph (A), the Secretary of Health and Human Services shall wwuhaw the known frequency of the disorder, the severi ty of the disorder, and the size of the popu lation at risk. "(3) The Secretary of Health and Human Services shall prepare reports and analysis of fatalities, occupational y, and inju ries collected under the surveil lance program and transmit the information to the Secretary of Labor. 8tate health agencies, employers, employees, and other interested parties. cient In its compliance with a provision of Its State plan and the Secretary determines that there are reasonable grounds to believe, that such a deficiency exists, the Secretary shall promptly Investigate any such com plaint. Complaints that allege a deficiency In an enforcement action by a State shall be Investigated not later than 30 days alter tne receipt of such complaint. "(2) The Secretary shall, not later than 39 days after the completion of an investiga tion under paragraph (1), transmit In writ ing to the State and to the complainant the findings of such Investigations and recom mendations for the correction of any defi ciency that Is Identified. If the Secretary de termines there are no reasonable grounds to believe that a deficiency exists the Secre tary shall notify the complainant In writing of such determination. "(3) Hot later than 30 days after the re ceipt of a finding transmitted under para graph (2), the State shall respond to the Secretary tn writing concerning what action the State has taken In response to the Sec retary's findings and recommendations. "(4) If after receipt of the response of the amended-- "(4) The Secretary of Health and Human State under paragraph O), the Secretary be (1) In the second sentence, by inserting Services may issue regulations to require an lieves a serious violation of the Act exists "and whether any hazardous condition or employer, through a physician or other for which the State has failed to issue a ci harmful physical agent found In the place health professional employed by or under tation. the Secretary shall with reasonable of employment poses a risk to exposed em contract to the employer, to report Informa promptness Issue adtatlon.". ployees" after "as used or found"; and tion on occupational fatalities, tllnrsnrg and 8EC1SSL ACIION AGAINST STATE PLAN. (2) by inserting after the second sentence, injuries in order to carry out the provisions Section 18(f) (29 U-8.C 887(f)) Is amend the following new sentence: "If a determina of this subsection.". ed-- WV 00000756O August 1, 1991 CONGRESSIONAL RECORD -- SENATE S 11S41 (1) by Inserting "(l)" after the subsection or Investigation conducted under section 8<i) health <,*06H"> programs to reduce or designation: concerning the employee's Injury. Utne-- or eliminate basards and to prevent Injuries <21 by redesignating the second sentence as paragraph <3) and indenting such appro priately; <3) by Inserting after paragraph (1). the following new paragraph: "(2X A) If the Secretary at any time finds reasonable grounds to believe that a State has failed to comply substantially with any provision of the State plan or any assurance contained therein, the Secretary shall give notice to the State of the deficiencies and shall allow 4 months for the correction of the deficiencies. death, prior to the Secretary's decision to issue a citation or take no action: and "(2) receive at no cost, s copy of any cita tions or reports. Issued as a result of the in spection or investigation, at the time of Issu ance. and be informed of any notice of con test filed under section 10 that shall be ac companied by an explanation of the rlghta of employee and employee representatives to participate in proceedings conducted under section 10. For the purposes of section 10. a victim shall have the same rights as an employee. and Illnesses to employees. Each program must be In writing, and must provide for (a) identification and correction of hazards. (b> employee training, education, and participa tion in the OCT program (to be considered as hours worked), (c) procedures for re sponding to and Investigating OSH inci dents. (d) designation of an employer OSH representative, and <e> OSH procedures for multi-employer worksites. Within one year of enactment. DOL Is re quired to issue regulations concerning em "(B) If after 6 months the Secretary de "(e) Discussion on MosmcAZTON or Cm- ployer OSH programs. DOL Is authorized to termines that the State has not corrected TtON.--Prior to entering Into an agreement modify the application of this section's re the deficiencies and that grounds for with to withdraw or modify a citation issued as a quirements to classes of employers if DOL drawing approval of the State plan exist, result of an Inspection of a fatality or seri determines that employees' OSH protection the Secretary shall institute proceedings ous incident conducted under section 6(1). would not be reduced. pursuant to paragraph (3) for the withdraw on request, the Secretary shall provide an The legislation requires employers to pro al of approval of the plan, unless the Secre opportunity to the victim to appear and vide employee OSH training. Including tary determines in writing that exceptional circumstances exist that Justify a decision not to Institute such proceedings."; and (4) by adding at the end thereof the fol lowing new paragraph: "(4) During the pendency of proceedings pursuant to paragraph (3). the Secretary shall exercise jurisdiction, concurrent with the State, over the safety and health Issues that are subject to the State plan.". make a statement before the parties con ducting the settlement negotiations. "(d) Rotors.--For violation of this sec tion. in addition to any other remedies that might be available to a victim under Federal or State law, a victim shall be entitled to-- "(1) declaratory relief; "(2) Injunctive relief: "(3) any costs incurred by the victim In se curing the documents referred to in subsec training for new employees end employees who face changed working conditions or modifications in applicable OSH regulations and standards, ss well as annual refresher training. OSH committee members (as de scribed In Section 201) must receive special training. Title II--/otnt Safety atid Health Committees SEC 1006. APPLICATION OF FEDERAL STANDARDS. Section IB <29 t? g.C. G6?) ('is amended by s.'ruon iOG3> is further amended by gumng at the end thereof the following new subsec tion: "(J> In the event a State, within 6 months after the promu'gatlon of a safety and health standard by tne Svcrrtary under sec tion 6, fails to adopt ->i p. &inuJgaie a stand tions (b)(2) and (cy, and "(4) reasonable attorneys fees and costs. "(e) Notification.--'The Secretary shall take reasonable actions to inform, victims of their rights under this section." <b) Ernn or Amendment.--The amend ment made by subsection (a) shall not be construed to affect the amendments made by section 29 of the Occupational Safety SECTION 901. JOINT SAFETY AMS HEALTH COMMITTEES. Section 201 requrtes employers with more than 10 employees to establish joint em ployer-employee OSH committees. Each committee shall have the right to (a) review the employer's OSH program and OSH records, <b) conduct inspections and employ ard that is at least as effective as the Feder and Health Act of 1970 as such section ex ee interviews periodically and in response to al standard, the State shah enforce the Fed isted on the date of enactment of such Act. specific incidents, (c) observe OSHA Inspec eral standard until a State standard is in effect that is at least as effective as the Fed eral standard.''. SEC. 1W4. STATE PLAN CONFORMING AMEND.'l ENTS. Section 18 (39 U.S.C. 687) (as amended by section 1093 and 1j05) lh further amended TITLE XU--EFFECTIVE DATE SEC 1391. KfTBCrTVg DATE. This Act and the amendments made by this Act shall become effective on the date that is 90 days after the date of enactment of this Act. tions and exposure monitoring by the em ployer. and (d) make advisory recommenda tions to the employer. Time spent on com mittee activities shall be considered as time worked. Although this section requires employers to establish a committee at each of its work by adding at the end thereof the following r.ew subsection: "(g) Each Plate which is exercising au thority to operate a State safety and health plan under section IS shall within 1 year of the effective date of this subsection modify the plan to conform with the requirements cf this Act." TITLE XI-- VICTIM'S RIGHTS SECTION-BY-SECTION ANALYSIS OF THE COUFRKHENStva Occupational Safety and Health Retook Act SECTION 1. SHORT TITLE. The legislation may be cited as the "Com prehensive Occupational Safety and Health Reform Act". SECTION S. FINDINGS AND FUBFOSL sites. DOL Is authorized to modify this re quirement for worksites with fewer than U employees, multi-employer worksites, and employees who do not work at fixed loca tions. For worksites of between 11 and 50 em ployees. the committee must include et least one employee representative. Pbr worksites of between 51 and 99 employee*, the com 'KG, 1101. OCCITiTIuNU. SAFETY AND HEALTH HALAJUi VICTIM'S RIGHTS ct) In General.--Section 20 is amended to read as follows: stc. M. (>crn>\TJPNAL .-:\FBTY AND HEALTH HAZARDS VICTIM'S RIGHTS "(a) Dsfinition.--As used in this sfCilon, the term "victim" means-- "(1) an employee wno has sustained a work-related Injury or illness which Is the subject of an inspection or investigation conducted under section o<i): or "(2) a family member of an employee, if-- "(A) the employee is killed as a result of a work-related injury or illness which is the subject of an inspection or investigation conducted under section 8(1); or (B) the employee sustains a work-related Congress finds that despite progress made in reducing the upf WBrk-related deaths, injuries and exposure* to toxic substances since 1970, such rates remain unacceptably high. In addition, employers and employees are Insufficiently involved in joint efforts to identify and correct occupational safety and health basards, and lack sufficient OSH training; standard setting, enforcement, and data collection are inadequate: and millions of American workers lack adequate federal occupational safety and health protection. The purposes of the legislation are to In crease the joint participation of employers and employees in Identifying tnd correcting workplace hazards, to Improve standard-set ting. enforcement and data collection, and to ensure adequate federal occupational mittee must include at least two employe? representatives. Committees at larger workatites must Include an additional representa tive for each additional 109 employees at such worksites (up to a maximum of six). Employer-designated representatives on the Committee are not to exceed employee representatives in number. In non-union set tings. employee representatives are to be se lected from among nan-managerial employ ees by secret ballot election. Xn union set tings. the exclusive bargaining agent shall designate such representatives. In mixed settings, each represented group (plus one residual group of unrepresented employees? shall have proportional representation on the committ-.-e. except that each group of 11 injury which is the subject of an inspection safety and health protection for all workers. or more employees shall have at least one or investigation conducted under section 8(1). and the employee cannot reasonably exercise the rights of the employee under this section. "(bl Victim's Rimer*.--Notwithstanding any other provision of law. on request, a SECTION S. OSHA AMENDMENTS. The legislation amends the Occupational Safety and Health Act of 1970 ("the Act") r 29 UJ3.C. section 661 et seq.). Title I--Safety and Health Programs - representative. DOL Is required to Issue final regulations regarding OSH committees within one year of the effective date of the legislation. DOL's regulations must provide procedures (where applicable) for election of employee victim shall be afforded the right to-- SECTION 1*1. SAFETY AMD HEALTH FROOSAMS. representatives, and require employers to *`(1> meet with the Secretary or an author Section 101 requires employers to estab make necessary facilities and materials ized representative regarding the inspection lish and maintain occupational nfety and available to committees. VVV 000007567 S 11842 CONGRESSIONAL RECORD -- SENATE August 1, 1991 v Title III OSHA--coverage related Illnesses determined as a result of rifle K Enforcement sectioitsox. muc DcnoTTzi medical examinations conducted under such Section 301 provides comprehensive standards. SECTION sot. EMFtOTEX FAKTICirATION IN INSPECTIONS OSHA coverage to all federal, state and SECTION 404. PUBLIC DISCLOSURE OF STANDARD- Section 601 provides that time spent by s. local employees for the first time. BETTING COMMUNICATIONS employee accompanying an OSHA repre SECTION SOS. CEDING JURISDICTION TO OTHER FEDERAL AGENCIES Section 404 requires DOL to place all com sentative on an Inspection, as permitted by munications regarding the standard-setting the Act, shall be treated as hours worked. OSHA currently does not apply to private sector employees covered by another federal agency's OSH regulations. Section 302 re- places this rule, requiring DOL to certify, for each specified hazard as to which St p/occss In the public record. SECTION 4S. REVISION Or PERMISSIBLE cnonnuuiim Section 405 requires NIOSH to evaluate, SECTION SOI. IMMINENT SANGER AND SERIOUS VIOLATION COKTlACm The Act requires DOL to make a special inspection upon receipt of a complaint from wishes to cede Jurisdiction, that another federal agency has an equally effective standard or regulation regulating that hazard. (Employees covered by MSHA. how on a regular basis, whether exposure limits for toxic materials and harmful physical agents should be modified or established. NIOSH must also transmit to DOL, at least an employee or employee representative al leging an Imminent dahger or a serious vio lation which threatens physical harm, if DOL finds reasonable grounds to believe ever. are expressly exempted.) This section every 3 yean, recommendations as to expo that such danger or violation exists. Section also sets forth procedures which permit af fected Individuals to seek a rescission of a certification Delore DOL, as well aa judicial sure limits which should be modified or es tablished. DOL la required to publish such recom 502 extends this requirement to imminent dangers and violations DOL learns about from other sources, and makes clear that review of DOL certifications and refusals to mendations, allow 30 days for public com the complaint may allege a serious violation rescind a certification. ment, Issue "a proposed rule responding to of either a standard or a provision of the SECTION SOS. COVERAGE OP DOE NUCLEAR FACILITIES Section 303 specifically extends OSHA coverage to federal nuclear facilities under the Jm-'-sdiction of the Department of Energy. SECTION J04. CL.U.IPICAT10N Of CENEHAI. "TY CLAUSE such recommendations within 6 months of receiving them, and issue a final rule within 1 year of Issuance of the proposed rule. DOL must explain its reasons for adopting any proposed or final exposure limit which differs from NIOSH'* recommendations. SECTION 404. EXPOSURE MONITORING AND MEDICAL SURVEILLANCE STANDARDS Act. SECTION SOS. NOTIFICATION OP DOL FINDING OP NO REASONABLE GROUNDS Section 603 requires DOL to notify the complainant within 30 days of the com plaint if It concludes that there are no rea sonable grounds to believe that such danger or violation exists. Section 304 makes c:tar that OSIIA's gen eral duty cJsuje extends 'o multi employer worksites, where hazardous conditions of practices may affect net only the employer's Section 406 requires DOL to issue final standards on exposure monitoring and med ical surveillance programs within 2 years of the legislation's effective date. The expo SECTION S04. SPECIAL EMPHASIS INSPECTION PROGRAM Section 04 requires DOL to establish and own employees out also other employees sure monitoring standards must provide for carry out a special emphasis Inspection pro working at the site. formal exposure assessments, regular moni gram targeting high-risk industries or oper Title IV: OSHA standards SECTION 0t. STANDARD-SiT-ITiHG PROCEDURES Section 401 sets forth piocedures regard ing OSHA's standard-selling process. First, If an advisory coromiu :-e. NIOSH. or EPA recommends <or any interested person peti tions for) the promulgation, modification or revocation cf a standard. DOL must publish a response within SO days, and nuist issue a proposed rule witlur. .2 .noniha unless it concludes that no action is warranted. Following the issuance of a proposed rule, DOL must permit a public comment period of at least 30 days, and must Issue a final rule within 280 days after the comment period or hearing. Section 401 a*so permit* sufeclcd persons to seek judicial review ol a decision by DOL not to propose a rule to promulgate, modify or revoke a standard as requested in a rec ommendation or petition. Such a d-jcision may be set asice ii it Is found to be arbi trary, capricious, or an abuse of discretion. Affected persons ou/ also seek Judicial review If DOL fails to act within the time periods specified in this section, to compel COL to take any action uniawiully withheld or unreasonably delayed. Finally, Section 401 makes clear that chal toring, a written compliance plan to reduce excessive exposures, employee notification of excessive exposures, recordkeeping, and participation of the Joint OSH committee. The medical surveillance standards must provide for identification of at-risk employ ees. periodic medical examinations of such employees, notification to employees of ex amination results, certification of health care providers to perform medical examina tions. confidentiality of personal employee medical records, prohibition of discrimina tion against any employee based on exami nation results, recordkeeping, and participa tion of the joint OSH committee. SECTION 407. ERGONOMIC HAZARDS STANDARD Section 407 requires DOL to issue a final standard on ergonomic hazards within I year of the legislation's effective date. The standard must provide for identification of ergonomic hazards, a program for employ ees exposed to such hazards (Including training and educgljfip ofluch employees), control measures to' 'reduce such hazards (including an effective medical management program), recordkeeping, and participation of the joint OSH committee. SECTION 40S. ADDITIONAL STANDARDS ations, and to report annually to Congress thereon. SECTION SOS. DOL INVESTIGATION OF SERIOUS INCIDENTS Section 606 requires employers to report any work-related death or serious incident (requiring hospitalization of at least two employees) to DOL, and requires DOL to In vestigate such incidents. SECTION SOS. ABATEMENT PROCEDURES Section 596 revises the Act's abatement procedures by providing a general rule that the period permitted for correction of a vio lation shall begin to run from the date of re ceipt of the citation. An exception allows sn employer to delay abatement until the entry of a final order by the OSH Review Commission if an employer contests a cita tion in good faith, unless (a) the employer contests only the proposed penalty or the characterization of the violation, or <b) the violation is serious and presents a substan tial safety or health risk of harm. Section 606 further provides that an em ployer charged with a serious violation which presents a substantial safety or health risk, and thus subject to an abate ment period which begins to run upon Issu lenges to the validity of a standard must be Section 408 requires DOL to issue certain ance of a citation, may seek a delay or sus brought either within 60 days of the issu additional standards by the dates listed pension of such period from the OSH ance of a final rule (ns provided under sec below: Review Commission. In the event of such a tion 6(f) of the Act), or by petitioning for November 30, 1901, blood beme patho request, the Commission shall expedite the the modification or revocation of a standard gens. proceeding and may modify the require through the process set forth above. December 31. 1091. permissible exposure ment of Immediate commencement of the SECTION 403. CONSIDERATIONS IN STANDARD- limits (update for construction, maritime, abatement period If it determines that such SETTING and agriculture); electric power; logging; requirement was unreasonable under the Section 402 amends the definition of "oc cupational safety and health standard" to mean a standard which addresses a signifi cant health or safety rui by requiring em ployers to adopt practices or processes that most adequately assure, to the extent feasi ble, a sale and healthful workplace. SECTION 405. RECORDING WORK-RELATES ILLNESSES head and foot protection: walking and work ing surfaces; hazardous materials; and motor vehicles. June 30, 1992, cadmium; confined space entry, asbestos (remand); hazardous waste training program accreditation; and methyl ene chloride. December 31, 1992, respiratory protectlopn; 1.3-butadlene; scaffaclds; fall protec tion: and glycol ethers. circumstances. This section also requires employers cited for serious, willful or repent violations to verify to DOL the abatement of such viola tions within 30 days of the expiration of th - abatement period, to provide appropriate documentary evidence to establish such ve* lflcatien, and to post a notice of abatement at the place of the violation. DOL Is re quired to issue regulations regarding abate Section 403 requires DOL standards to December 31, 1993, Indoor air quality; and ment verification and posting within or* provide for recording or reporting of work- longshorin*. year of enactment. WV 00000756^ August 1, 1991 CONGRESSIONAL RECORD -- SENATE sum UCTIOM Ml DOIOTB CONTEST OP CITATIONS To conform the bases upon which employ ers snd employees may contest citations. Section 507 makes clear that employees may do so based on the characterization of the violation (non-serious, serious, willful or re peated). the sections of the Act or regula tions listed as the basis (or the citation, or the proposed penalty. clarifies the applicability of these higher limits to OSHA violations. In addition, this section provides that individuals convicted of OSHA offenses will be personally liable for any criminal fines iurmirri against them. rifle VI: Anfi-fHicrlmtiuifion Protection SECTION SOI. ANTX-OIBCB1MXNATXOH PROVISIONS as soon as possible, and to provide an Inter im report if it cannot make a determination within 6 months. SECTION SOI. NEBEAEf Section 903 requires NIOSH to Identify major factors contributing to work-related deaths and injuries through accident inves tigations and epidemiological research. SECTION lot. EMPLOYEE ?ASTICITATION Section 601 extends the coverage ol the SECTION SOS. EMPLOYS NOTITICAXlOa The Act currently allows employees to Act's anti-discrimination provisions to (a) an PROGRAM participate in OSH Review Commission employee's reporting of Injuries or unsafe Section 903 requires NIOSH to establish a hearings. Section 608 allows employees to conditions, and (b) an employee's refusal, program to idetally and notify employees at participate in other OSHRC proceedings as welL section see. employee contest or dolBOtOTB A01E1MEHTB Section 609 requires DOL to notify affect ed employees if it intends to modify or with draw a citation as result of an agreement with the cited employer. Such employees may challenge the agreement within 16 days if it falls to effectuate the purposes of the Act. If DOL rejects the challenge, such em ployees may (within 15 days) seek an OSHRC hearing. DOL is precluded from carrying out the agreement if the OSHRC determines that It would not effectuate the purposes of the Act. SECTION #10. IMMINENT DANCERS after first unsuccessfully the employ er to eliminate an unsafe condition, to per form duties which the employee reasonably believes would expose him or her to a bona fide danger of injury or serious impairment of health. Section $01 also revises the procedures for the handling of discrimination complaints. The period for filing such complaints is In creased from 30 to 180 days following the al leged discrimination. DOL Is required to in vestigate the complaint and report findings within 60 days. If DOL Issues a preliminary order finding a violation, such order becomes final unless within 30 days a party files objections there to and request a hearing. In which case DOL is required to issue a final order within 120 days of such hearing. DOL la authorized to Increased risk of suffering work-related deaths, injuries and Illnesses. and to make recommendations as to medical surveillance of such employees. SECTION 004. DOL EIGHT or INSPECTION Section 904 clear that NI06H*s au thority to inspect records extends to Its des ignees and contractors. SECTION OOS. NATIONAL AURVSZLLAVCB PROGRAM Section 906 requires NIOSH to establish a national surveillance program to identify work-related deaths. Injuries and illnesses, and to provide reports on the data collected pursuant to such program to DOL. This sec tion also authorizes mrs to require employ ers to provide such data to NIOSH. Section 510 requires OSHA inspectors, (a) require employers to correct violations upon discovery of a workplace hazard which and reinstate discrimination victims. <b> SECTION SOS. RE0CSICNATION OP NIOSH poses an imminent danger, to notify the em award back pay, compensatory NIOSH currently operates under the aus ployer and request immediate abatement of costs and expenses, and (c) seek Judicial en pices of the Center for Disease Control. Sec the hazard. If the employer refuses to abate forcement of final orders if necessary. Af tion 906 provides for the redesignation of the hazard, the inspector (upon approval by fected persons may seek Judicial review in NIOSH as a separate agency within the DOL) may Immediately post a notice or tag an appropriate UA Court of Appeals within Public Health Service. identifying the hazard as posing an immi 60 days following the iMinmv of a 'final nent danger. Employers who fall to abate order. Title X: State Plane such a tagged hazard, or remove all employ Finally. Section 801 provides that the SECTION 1001. STATE PLAN COMMITTEES AND ees from exposure thereto, shall be fined be legal burdens of proof set forth in the Whis PROGRAMS tween 810.000 and $50,000 per day for non abatement. In addition, employers are pro hibited from discriminating in any manner against an employee who refuses to perform a duty that would expose him or her to the tagged hazard. tleblower Protection Act of 1989. 6 U.S.C. section 1221(e), shall apply to adjudication of OSHA anti-discrimination complaints. Title VII: Training SECTION 701. TRAINING AND EDUCATION Under Section 1001. state plans must re quire employers to establish OSH programs and committees at least as effective as those required under this legislation. SECTION 1093. STATE PLAN XtOUTRSKENTt SECTION Sll. VIOLATIONS Or OSH PROCRAM AND COMMITTEE REQUIREMENTS Section fill makes clear that DOL may Issue citations and aitpyg penalties for viola tions of new sections 27 (OSH programs) and 28 (OSH committees). Section 701 requires DOL to develop model curricula, training materials and edu cational programs for employees and OSH committee members. Title VItt: Reporting and Data Collection SECTION SOI. DATA COLLECTION Under Section 1002. state plans must In clude reporting. anit-dlscriminmtiacL and access to information provisions which are at least as effective as those provided under this legislation or other applicable federal laws. SECTION SIS. OSHA CRIMINAL PENALTIES Section S12 expands the maximum crimi nal penalties for violations of the Act. The maximum Imprisonment penalties are in creased as follows: Willful violation that causes death: In creased from 6 months to 10 years (first conviction) and 1 year to 20 years (addition al convictions). Advance notice of an inspection: Increased from 6 months to 2 years. False statement: Increased from 6 months to 1 year. Willful violation that causes serious Injury: a new criminal offense is created with maximum imprisonment of 5 years (first conviction) and 10 years (additional convictions). "Serious bodily injury'' Is de fined to mean bodily injury that involves a Section 801 requires DOL to gather, and make publicly available, data in order to identify (a) high-risk industries, employers, operations, and occupations^ (b) causes of Injuries and Hlntaataj Mid <c> workers* com pensation costs. DOL must also Issue regula tions requiring employers to report work-re lated deaths Immediately to DOL. and to report serious Incidents (requiring hospitali sation of 2 or more employees) to DOL within 24 hours. SECTION SOS. ILLNESS RECORDS The Act requires employers to keep records and file periodic reports on work-re lated deaths, injuries and illnesses. Section 802 adds to this list illnesses suspected to be work-related, unless the employer makes a reasonable determination that the illness is not work-related. SECTION 1003. COMPLAINTS AGAINST STATS _ PLANS Section 1003 requires DOL to investigate complaints against state plans promptly if it finds reasonable grounds to believe that a state has not complied with Its plan. (Com plaints regarding enforcement must be in vestigated within 30 days.) DOL is further required to transmit findings to the complalnant within 30 days of the completion of its investigation. If DOL finds that a state is not in compliance with its plan, it must so notify such state, and within 30 days the state must Inform DOL of Its response. DOL is also required to Issue citations for serious violations if the state has failed to do so. SECTION 1004. WITHDRAWAL OP STATS VLAN APPROVAL substantial risk of death, protracted uncon SECTION Ml. ACCESS TO BXCORDS Section 1004 provides that U DOL finds sciousness, protracted and obvious physical disfigurement, or protracted loss or impair ment of the function of a bodily member, organ, or mental faculty. In 1984. the maximum criminal fine limits Section 803 provides that DOL hhs and employees shall have access to employer OSH records. Title IX: NIOSH reasonable grounds to believe that a state has failed to comply substantially with its plan, it shall give the state 6 months to cor rect any deficiencies. If the state fails to correct such deficiencies within 8 months. (ranging from $1,000 to $20,000) for OSHA SECTION 01. HAZARD EVALUATION RDORTft DOL shall commence proceedings to with violations were superceded by the higher Section 901 requires NIOSH. after receiv draw approval of such state's plan, unless maximum criminal fine limits ($250,000 per ing a request for a determination as to the exceptional circumstances exist. During the Individual, $500,000 per organization) con toxicity of a workplace substance, or the pendency of any proceedings to withdraw tained In the Sentencing Reform Act of safety or health risk posed by a condition or approval of a state plan, DOL shall exercise 1984 (18 U.S.C. section 3571). Section 612 physical agent, to provide a determination concurrent Jurisdiction with the state plan. VVV 000007569 S 11844 CONGRESSIONAL RECORD -- SENATE A ugust 1,19S1 HCTXOX 100. ASOmOH OF fTDOUU. tistics--these are our mothers and fa bargaining representative; otherwise SZAHSABBS thers, our sons and daughters, our they are to be elected by employees. Section 1005 provides that when a federal standard is adopted, state plans must either adopt an equally effective standard within 6 months or adopt the federal standard until such time as comparable standard is adopted. SKCTIOir 1004. CONFORJCINC STATS FLAMS Section 1006 permits states 1 year from the effective date of the legislation to bring their plans into compliance with the legisla tion. Title XI: Victim*'Right* secnoit i toi. vtentta' sights Section 1101 extends certain rights to em ployees who suffer injuries or illnesses on the Job, and to the families ol employees killed on the Job. If DOL Investigates ihe In cident. such individuals are entitled to (a) -meet with DOL prior to DOL's decision as to whether or not to Issue a citation, (b) re ceive copies of citations, reports, and notices of contest, (c) participate In OSHRC pro ceedings, and (d) meet with DOL and the employer before any settlement is agreed to. Title XII: Effective Date SECTION lftOl. EFFECTIVE DATE Section 1201 provides sn effective date for this legislation 90 days after enactment. Mr. METZENBAUM. Mr. President, I am proud to join with Senator Ken nedy today as an original cosponsor of wives and husbands. The fates they are suffering are unspeakably horri ble: they are being crushed by falling walls, killed in fireball explosions, dis membered by machines, asphyxiated by gas, buried alive In collapsing trenches, electrocuted, burned, and crippled or killed by disease. The simple fact is that many of these tragedies are preventable. We must do more to fulfill OSHA's origi nal promise of providing safe and healthy working conditions for every working American. Prior to last year, when the maxi mum civil penalties were increased. OSHA had never been amended. The comprehensive legislation we are introducting today Is long overdue. It ad dresses a number of major problems with the act and OSHA's enforcement scheme. Prehaps the most fundamental prob lem OSHA faces is a lack of resources. OSHA has only 1,200 inspectors to en force compliance by roughly 3.5 mil lion employers, providing protection for some 55 million employees. Collec tively, State occupational safety and health agencies have only 1,100 in Committees are authorized to review the employer's safety and health pn gram, conduct inspections, and make advisory recommendations to the em ployer. Many employees refrain from blow ing the whistle on unsafe conditions for fear of losing their jobs or suffer ing other reprisals. The bill strength`-tis the act's anti-discrimination provi sion. by adopting protections and rem edies modeled on the Surface Trans portation Act. Employee reporting of unsafe conditions is protected, as well as refusals to work where the employ ee reasonably believes that there is a bona fide danger of injury or serious Impairment of health. The bill also revises the procedures for the handling of discrimination complaints, and authorizes OSHA to order reinstatement and assess back pay, compensatory damages and attor neys' fees against violators. In addition to increasing the involve ment end cooperation of employers and employees, wo must also make sure that CSIIA gets the most impact In terms of reducing work-related the Comprehensive Occupational spectors to enforce compliance by 2.3 deaths, injuries and illnesses out of Safety and Health Reform Act. million employers, providing protec every dollar of funding it gets. Two Twenty-one years ago. Congress en tion for 34 million workers. decades of experience have exposed acted the Occupational Safety and These numbers mean that even the many problems with CSHA's stand Health Act with the following pur most high-risk employers are not ard-setting p:cc*`ss and enforcement pose: "To assure so far as possible likely to see an OSHA inspector show scheme. This legislation strengthens every working man and woman in the up to Inspect their facilites. Indeed, as OSHA s authemy in a number of n Nation safe and healthful working the number of employers and workers spects. conditions." Since then, we have made some progress toward achieving that goal. Employers have become more aware of subject to OSHA's Jurisdiction has grown, the agency's funding has shrunk In real dollars, with the agency receiving $348, million in fiscal year OSHA's existing standard-setting process is woeriliy inadequate to keep up with the thousands of potentially hazardous ne*?.' chemicals and other safety and health problems, and many 1989. pnyMcai introduced into the employers have tried to address those We must recognize that large In American workplace annually. As of problems. creases In OSHA's funding are unlike !v23, OSHA standards regulated oniy But our promise of a safe and ly given our current fiscal problems. about 830 jubstcu.ces, fewer than 30 tf healthy workplace for all American OSHA's enforcement strategy will con which were regulated by comprehen workers remains unfulfilled. Two dec tinue to be based largely on voluntary sive ?*T.ndr.ru.: providing for such ades after passage of the act, injury compliance by employers and workers. Liungs .-s t\posure monitoring ei -- and death rates remain chockir-gly But employers and woikers often lack medicai su've i.i.^.cc. high, and have been rising since 1^33. adequate information about workplace Even when OSKA has undertaken to The American workplace is becoming health and safety hazards and hew provide a standard icr a given safety a "Uttle shop of horrors." best to abate tlMpa* oi healVc br.'.v.i j.- response is often In 1989. the mast recent year for The bill we are introducing today inodecuate. in *:'78, for example, n which statistics are available, 19.400 will dramatically Improve the coopera Presidents'll txsk force determined workers were killed on the job, an av tive efforts of employers and employ that OSHA's 1971 machine guards erage of 40 workers each work day. At ees to address workplace safety and standards .c\e:cd ciLy 15 percent of this rate, an American worker is killed health issues. First, the bill requires the mactur.o types then in use. Fifteen on the job every 36 minutes. employers to establish occupational years later, that standard has yet to be Another 1.700,000 working men and safety and health programs to reduce updated. women suffered disabling injuries on or eliminate hazards, and to prevent Moreover. nu=ny OSHA standards the job in 1989, an average of 6.538 injuries and illnesses to employees. under development are delayed for workers each work day. At this rate, a Employee training and education will years. lor example. OCHA spent 9 working man or woman in this country be provided as part of these programs. years developing a lockout/tagout suffers a disabling injury on the job OSHA Is authorised to modify the ap standard governing protections against every 13 seconds. plicability of these requirements to the sudden activation of machinery, Hundreds of thousands more work classes of employers provided that em beginning consideration In 1980 and is ing men and women died or became ployees' safety and health protection suing a final standard in 1989. During disabled as a result of Job-related ill is not reduced. that decade of delay, over 1,000 Ameri nesses and diseases such as cancer, The bill also reqircs employers of 11 cans lost their lives from accidents lead poisoning, and respiratory dis or more emplolyees to have safety and that could have been prevented, t; ease. At present, we lack even the data health committees made up of an OSHA's own calculations, had a stand to know how bad this problem really equal number of employee and em ard been in place. is. ployer representatives. In unionized The bill streamlines OSHA's stand This level of carnage is completely settings, employee representatives are ard-setting process, shortening it to unacceptable. These are not just sta to be designated by the employees' roughly 18 months. OSHA is also re- VVV 000007570 August 1, 1991 CONGRESSIONAL RECORD -- SENATE S 11845 quired to address certain specific haz OSHA has yet to seek criminal sanc standard. The bill also clarifies that an ards already on the agency's regula tory agenda--Including exposure moni toring. medical surveillance, and er gonomic hazards--within certain time frames. There are several significant prob lems with the act's hazard abatement procedures. First, employers can delay abatement of a health or safety hazard simply by contesting a citation Issued by OSHA. That process can take months or yean to complete. The bill would require employers to abate serious violations of the act when a ci tation Is first Issued if there is a sub stantial risk of harm. Employers seek ing review of the citation In such cases would be entitled to expedited consid eration of the review proceeding. Similarly, if an OSHA inspector finds an imminent danger which could reasonably be expected to cause death or serious injury, the employer need not abate the hazard until the agency obtains a court order. The bill author tions under that law. This bill amends the act to send a strong message from Congress that OSHA must mak* meaningful use of these criminal sanc tions. Nor have OSHA and the Depart ment of Justice sought imprisonment of egregious violators. Not a single em ployer had ever served time under OSHA's criminal provisions until 1989, when a convicted employer served 45 days in prison. The Department of Labor's own acting inspector general has acknowledged "an apalling lack of criminal enforcement" by OSHA. This bill amends the act to lengthen the maximum allowable sentences, in order to encourage OSHA and the De partment of Justice to make more meaningful use of the act's criminal provisions as a deterrent to violations. Current maxlmums are very short, al lowing a 6-month mMiwnw for a will ful violation that causes a worker's death. By way of contrast, the maxi employer operating at a multiemploy er worksite has a duty to provide a safe workplace not just to its own em ployees, but to the employees of other employers operating at the site as well. I am proud to stand here with Sena tor Kennedy as we begin this effort. In the coming months, we Intend to hold a number of hearings in order to explore these problems, and our pro posed solutions, in greater depth. We hope the administration and the em ployer community will be active par ticipants in this dialog. But let us move swiftly to address these problems, so that we can fulfill Congress's promise made 21 years ago to assure every working American safe and healthful working conditions. With every day we wait, 40 more American workers die, and thousands more are disabled by injury and ill ness. izes OSHA to "tag'1 Imminent dangers immediately if the employer refuses to abate them, and to fine employers be tween $10,000 and $50,000 a day for nonabatement. In addition. OSHA does few follow up inspections to verify abatement, re lying Instead on lnverified employer statements. The bill requires employ ers to provide documentary evidence to verify abatement, and to post no tices of abatement. This bill also addresses the agency's enforcement through the act's crimi nal provisions. Although OSHA has mum penalty under Federal law for maliciously harassing a wild burro is 1 year. In addition, this bill for the first time permits criminal prosecution for a willful violation that causes serious bodily injury. Under present law, OSHA cannot seek a criminal prosecu tion against an employer for & willful violation of the act unless a fatality occurs. Thus, no matter how egregious the employer's violation is, no matter how many citations the employer has received In the past, and no matter how many workers are seriously and By Mr. DeCONCINI (for him self, Mr. Lnouye, Mr. Hatch. Mr. Kennedy, Mr. Leahy, Mr. Burns. Mr. Gorton, Mr. Gore. Mr. Grassley, Mr. D'Amato, and Mr. Cranston): S. 1623. A bill to amend title 17. United States Code, to implement a royalty payment system and a serial copy management system for digital audio recording, to prohibit certain copyright infringement actions, and for other purposes: to the Committee on the Judiciary. handed out large penalties in a permanently injured as a result of the AUDIO BOMS RECORDING ACT number of cases--by citing employers employer's actions, the Government Mr. DeConcxni. Mr. President. I am on an lnstance-by-instance approach-- cannot prosecute unless a worker dies. pleased today to introduce, along with the agency's general practices in as OSHA also needs better data to my colleagues Senators Inouye, sessing civil penalties and in seeking enable the agency to target its limited Hatch, Kennedy. Leahy. Burns, criminal prosecutions leave much to be Inspection resources more effectively. Gorton, Gore, Grasslxy, D'Amato. desired. For example, in fiscal year Currently, OSHA attempts to target Cranston, and Breaux, the Audio 1988. the average assessed civil penalty high-risk Industries for Inspections to Home Recording Act of 1991. This leg for a serious violation was only $261.1 make the best use of its resources. For islation finally will resolve one of the hope that Congress' action last year in example, manufacturing Industries are most difficult and emotional argu raising the Limits of permissible civil targeted by their average lost workday ments. In copyright law, whether indi penalties will produce meaningful injury rates. The construction indus viduals have the right to tape for non- fines which fulfill their deterrent pur try Is also heavily targeted by OSHA's commerlcal purposes, copyrighted ma pose. inspection efforOBut because of the terial. The copyright Issues raised by OSHA's use of the act's criminal small inspection force, and the size of home taping of sound recordings and penalties provisions has been even OSHA's Jurisdiction, even employers the Impact on copyright owners, song worse than the i agency's use of civil in these targeted Industries are rarely writers. preformers, music publishers, penalties. In the past 2 decades, ac Inspected. Moreover, roughly a quar and musicians have long frustrated cording to QAO, the agency has re ter of the agency's citations are for those of us in Congress with responsi ferred only 57 cases to the Depart nonserlous violations. This legislation bility over these matters. The bill that ment of Justice for criminal prosecu requires employers to report all work- my colleagues and I are introducing tion. The Department of Justice pros related deaths and all safety and today represents an historic compro ecuted less than half of these cases health Incidents in which two or more mise among the parties of this long and obtained convictions in only 14 employees are hospitalized, and pro standing dispute. As one who has cases. By comparison, the State of vides for Improved data collection by struggled with the equities of this California's OSH agency referred 92 OSHA and NIOSH, in order to im troubling issue, I am pleased that an cases for criminal prosecution in 1985- prove Inspection targeting. agreement has been reached. 86 alone, and the State filed charges In Finally, this legislation extends the I first became Involved In the issue 41 cases. act's coverage In a number of respects. of home taping of copyrighted materi Even when OSHA does pursue crimi First, a long-standing gap In Federal al in 1981. At that time, the Ninth Cir nal prosecutions, the agency typically occupational safety and health law is cuit Court of Appeals Issued a decision seeks minimal monetary penalties. filled by extending coverage to Feder finding that the non-commercial pri The Department of Justice has con al, State and local government em vate video taping of broadcast televi cluded that the Crime Control Act of ployees. In addition, OSHA Is permit1 sion shows constituted copyright In 1984, which Increased criminal fines ted to cede private sector Jurisdiction fringement. I disagreed with the deci for willful violations of Federal stat to other Federal agencies--(such as sion of the Ninth Circuit and Immedi utes to $250,000 for individuals and FAA--only with regard to particular ately introduced legislation to over $500,000 for companies, applies to hazards, and only if the alternative turn It. It is difficult to believe that OSHA violations. Yet It appears that standard la as effective as OSHA's the so-called Betamax decision was an- VW 000007571