The OSHA Mission -- Found and Lost
A Public Reminder


By Khalid Elhassan


February 2000


CENTER FOR STUDY OF RESPONSIVE LAW
P.O. Box 19367
Washington, D.C. 20036
www.csrl.org



Preface by Ralph Nader
INTRODUCTION
I. WHY OSHA?
          A. OSHA's Reputation
          B. Necessity of Workplace Safety Regulations: Costs of Workplace Physical Harm
          C. "Injuries" versus "Illnesses"
          D. Workplace Safety Regulation and Deterring Unsafe Practices
          E. Choosing Workplace Safety Regulators: Government Regulation versus Collective Bargaining
          F. Chicken Nuggets versus Workers' Lives: In the Absence of Regulation
II. The OSH Act, OSHA, and the Need for an Overhaul
          A. What is the "OSH Act"?
          B. What is Wrong With the OSH Act? An Overview
          C. Recent OSHA Performance
III. The OSHA 2000 Reforms
          A. The Need for Tougher Criminal Penalties
          B. Further Woes of the OSHA 200 Logs: Reactive vs Proactive
          C. Increasing the Anemic Funding of Workplace Safety Regulation
          D. OSHA and the Slows: Promulgation of Safety Standards
          E. Strengthening Weak Whistleblower Protections
CONCLUSION
Endnotes

Appendix 1, The OSHA Reform Provisions
Appendix 2, The Current Occupational Health and Safety Act




Preface by Ralph Nader

The American mission of safe and healthful workplaces should be a highly visible, heralded and backed by an adequately funded and enforced program. After all, far more Americans have lost their lives due to trauma and toxics in places of employment - especially the factories, farms, construction sites and mines - than the number of Americans lost in all the nation's wars. Nonetheless, for generations it has been a reluctant push and a strained pull to eke out the most minimal governmental safety initiatives in these arenas. Until 1970, the states had this jurisdiction to themselves and their experience and resolve were minuscule. Only major fatal tragedies nudged their feeble efforts along until customary lethargies reasserted themselves.

In our work to secure the passage of the 1970 Occupational Safety and Health Act (OSH Act), that established the Occupational Safety and Health Agency, along with the National Institute for Occupational Safety and Health, we came across various syndromes of disinterest among the relevant professions, among many but not all trade union leaders until the active leaders turned the tide among their colleagues, and government officials. Of course, there was always the active opposition among industry and commerce groups and their corporate law firms. Fortunately, the OSHA legislation passed and President Richard Nixon signed it into law 30 years ago. But it was not long before OSHA became a favorite whipping boy for reactionary politicians on the industry take. With its tiny budget surrounded by hostile elements in Congress and in the business world, OSHA could scarcely begin fulfilling its charge. Still, with the occasional leadership of people like Eula Bingham, OSHA both directly, and by merely its looming potential, steered the country toward significant successes in reducing mortality and morbidity on the job.

The plight of OSHA presently transcends different Administrations. Since 1981 OSHA has not been given the requisite energy, funding, authority and political backing needed to protect American workers. The Public Reminder by Khalid Elhassan serves to recall OSHA's mission and its accomplishments, and recommends strengthening its budget, legal authority and enforcement powers. OSHA is supposed to sanction or penalize hazardous working conditions that violate these standards. However, the agency is simply blocked from achieving these objectives to any reasonable degree, as Mr. Elhassan shows.

Readers of this Reminder should find the following pages an occasion to rethink the reasons for this gap between regulatory promise and corporate performance, and resolve to turn around a situation that for too long has been in the backwater of politics and press.

INTRODUCTION

Responding to a trend of increasing employee deaths and injuries, (1) and seeking to protect the safety and health of America's workforce, Congress enacted the Occupational Safety and Health Act (OSH Act (2)) in 1970, creating two federal agencies. The Occupational Safety and Health Administration (OSHA) was created as a subagency within the U.S. Department of Labor, tasked with promulgating standards and regulations for workplace safety, and with enforcing such regulations. The OSH Act also created the National Institute for Occupational Safety and Health (NIOSH) as a subagency within the Department of Health and Human Services, and tasked it with conducting research on occupational safety and health, as well as providing OSHA with recommendations on safety and health standards.

Part I of this working paper reviews the need for OSHA. Part II considers weaknesses in OSHA's record in carrying out its mission and shortcomings in the OSH Act. Part III suggests a series of statutory reforms under the title of OSHA 2000 reforms, and calls for increased agency funding.

I. WHY OSHA?

To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health; and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Occupational Safety and Health Act of 1970" (3)

A. OSHA's Reputation

OSHA is arguably the most maligned federal agency. Much of what passes for public debate about OSHA today consists of corporate-inspired propaganda, half truths, inventions, and fabrications in the form of anecdotal horror stories about the excesses of the regulatory agency - stories which are frequently exposed as outright lies. Horror stories about OSHA's supposed over-zealousness and excess often achieve the status of urban legend before the truth surfaces - and often persist in policy debates and media accounts after having been revealed to be false or misleading. At no time was that more evident than during the attacks on the very existence of the agency in the 1990s, when OSHA became the favorite target of so-called regulatory "reformers."

Take the myth that OSHA has 140 standards for ladders. Two is the actual number. (4) How about the one that has OSHA harassing restaurants by listing Joy dish detergent as a hazardous substance? The reality is that OSHA does not classify dish detergent as hazardous, and hazardous substance forms need not be filled by employers unless a cleanser is used in above average quantities or mixed with other dangerous chemicals. (5) Another urban legend has it that OSHA killed the tooth fairy when it stopped allowing dentists to give extracted teeth back to children. The truth is that although teeth are covered by OSHA's blood-borne pathogen rule, it is up to dentists' discretion whether or not extracted teeth are returned to their owners. (6) Or take the best selling Death of Common Sense by Phillip Howard, in which OSHA is chastised for regulating sand. It is true that OSHA has regulations governing sand. However, Mr. Howard's research seems to have overlooked the fact that although the sand found on a typical beach is harmless, the finely ground sand used in industrial settings can and does kill those exposed to it without respiratory protection with alarming frequency. (7)

B.Necessity of Workplace Safety Regulations: Costs of Workplace Physical Harm

In contrast to the claims of OSHA's adversaries, a review of the actual data on workplace deaths, disease, and injuries shows the compelling need for a strong workplace safety regulatory agency. In 1998, over 6.2 million workplace injuries and illnesses were recorded in the private sector. That is nearly 17,000 injuries or illnesses for each day. For the year, 6,218 of those injuries were fatal. The National Institute of Occupational Safety and Health estimates that another 100,000 workers will die every year from diseases contracted on the job because of exposure to hazardous chemicals and toxins. (8)

High rates of workplace injuries, illnesses and deaths every year also place a heavy financial burden upon employees, their families, employers, government, and society as a whole. According to the National Safety Council, 125 million days of work are lost every year as a result of workplace injuries. In 1995, the National Safety Council estimated the cost of work-related injuries as exceeding $120 billion a year, including $60.9 billion in lost wages and productivity, $21.1 billion in medical costs, and $23.7 billion for the retention or hiring of new workers. (9)

The cost computations do not reflect the intangible costs associated with pain and suffering, the financial burden upon bereaved families suffering the loss of a loved one, and

the societal losses associated with workers dying early in their productive lives.

Behind the statistics of 6,000 killed a year from traumatic injury in the workplace, approximately ten times that many or more dying annually from occupational disease and millions suffering from workplace injuries are countless human tragedies. Consider the following recent examples:

C. "Injuries" versus "Illnesses"

The preceding National Safety Council estimates are limited to the costs of workplace fatalities and traumatic injuries, and do not include the costs of occupational diseases and illnesses. (16) "Traumatic" fatalities and injuries result from those sudden accidents whose harm is immediately visible, such as burnt flesh, severed limbs, or broken bones. Such sudden injuries tend to attract the media's attention, and their immediate manifestation makes them more easily calculated and tabulated than occupational illnesses and diseases. On the other hand, many illnesses brought about by exposure to hazardous workplace chemicals or toxins do not manifest themselves until years after exposure to the disease-causing agent. Those illnesses are seldom recorded by employers on the injury and illness log books which the OSH Act requires employers to maintain, (17) and consequently are frequently not reflected in the injury and illness cost computations of the U.S. Department of Labor's Bureau of Labor Statistics (BLS). The Bureau of Labor Statistics collects little or no information on deaths caused by occupational illnesses because, although capable of expertly handling large-scale surveys, neither OSHA nor the BLS are capable of verifying the underlying workplace injury and illness data. (18)

Even if the Bureau of Labor Statistics attempted to keep track of occupational illnesses, the OSHA 200 Logs, which are notoriously unreliable, (19) would be a bad place to start - yet, they are the sole source from which the BLS could collect from-the-shopfloor occupational illness data. Very few employers record illnesses on the log, particularly chronic illnesses and diseases which do not manifest themselves until long after the exposure to the disease-causing agent - often after the employee has switched employers. In addition, employers, facing the possibility of a claim for workers' compensation, have no incentive to concede liability by recording the employee's illness in the OSHA 200 Logs as a workplace-related malady.

D. Workplace Safety Regulation and Deterring Unsafe Practices

Compelling employers to internalize the costs of job-related injuries, particularly since employers are the party most capable of preventing harm at the workplace with the least cost, exerts a desirable deterrent effect on unsafe employer practices. As long as it costs less to permit casualties than to prevent them, the incentive of an unbridled market enterprise, driven by bottom-line concerns, is to refrain from investing in safety equipment and training. Historically, most employers have seldom invested in the safety of their workers unless required by law, compelled by mobilized workers, or forced via the tort system or other means to internalize some of the costs of the harm befalling workers.

In the real world, outside the parameters of economists' models, those with the misfortune of holding the dirtiest and most dangerous jobs have fought mightily for public regulation of workplace safety, and this has consistently proven to be the most effective strategy for improving the lot of the worst-off workers. A classic illustrative example of the development and efficacy of workplace safety regulation is the railroad industry, which was a nineteenth century pioneer in technology and economic development, as well as in grisly accidents putting workers and riders alike at great risk - reasons which caused it to be singled out for special attention by state and federal laws, such as the mandating of automatic couplers, fewer hours for those performing the most hazardous of tasks, and better training. The result was a drastic improvement in railroad safety benefitting both workers and riders. (20)

And OSHA regulations - as inadequate and underenforced as they are - have dramatically improved working conditions across the United States. Workplace fatalities have been halved since passage of the OSH Act, even though the total workforce has increased by almost 60 percent. In the mining sector, regulated by the Mine Safety and Health Administration, fatality rates are approximately one quarter of the pre-regulatory era. In construction, fatalities are down 80 percent and injuries have decreased by 40 percent. (21)

E. Choosing Workplace Safety Regulators: Government Regulation versus Collective Bargaining

Many obstacles stand between unions and successful bargaining over safety issues. First, challenging management on safety issues can result in an increased flow of grievances from the rank and file union members, and may shift the locus of action from the union's headquarters to the grass roots level and the shop floor - a political problem for many full-time union officials. (22) Second, workplace safety is more burdensome to union officials than the traditional preoccupation with wages and benefits, and entails greater staff requirements, since safety issues involve a high level of technical detail. Third, what is referred to as the "Labor Accord" - which came at the close of World War II - entailed an exchange of management concessions to unions, on matters such as wages and recognition, in return for the unions' acceptance of managerial prerogatives in the organization of work. To the extent that workplace safety and health demands impinge on this commitment, union leadership will be reluctant to pursue them. (23) Fourth, organized labor represents less than 15% of the U.S. workforce and less than 10% of private sector employees. As a result, gains in collective bargaining agreements will only directly cover a small fragment of the workforce. Finally, industry-wide safety regulation has been generally preferred by labor unions as an alternative to company-by-company negotiation, since industry-wide regulation by the government avoids the problem of safety reform in a particular company putting that firm and its workers at a competitive disadvantage, (24) and steers the unions clear from a direct showdown with management. Conventional collective bargaining, then, cannot be a substitute for governmental regulation if the goal is to protect the health and safety of the American workforce.

F. Chicken Nuggets versus Workers' Lives: In the Absence of Regulation

Nothing better illustrates the consequences of weak or non-enforcement of workplace safety regulations than the story of Imperial Foods in Hamlet, North Carolina. Not once during the eleven years of the plant's existence did a workplace safety inspector set foot inside the plant. (25) Had even the most cursory of inspections been conducted, the inspector's eyes would have been greeted with an employer whose concern about the possibility of employees stealing chicken nuggets from the plant led him to put the plant's fire exits under lock and key. No inspection took place, a fire broke out in the plant in 1991, and 25 workers were killed as a result of being trapped behind locked doors.

Following the tragedy, the plant was shut down, Imperial Foods went out of business, and its CEO/owner was sentenced to 19 years imprisonment after pleading guilty to 25 counts of involuntary manslaughter under state law. (26)

Regardless of how one views the justice or injustice of such punishments, they were not meted out until after the harm had occurred, and thus serve to illustrate another structural fault with the OSH Act, or how OSHA operates under the OSH Act: the fact that the agency is often backward looking, or reactive, rather than forward looking, or proactive. It is a given that the shortage of inspectors means that OSHA cannot inspect each and every workplace, and must therefore focus a greater share of its resources on the more dangerous workplaces, but severe underfunding prevents the agency from inspecting even dangerous workplaces with any frequency. In addition, determining which places are the dangerous ones can be an ordeal in of itself. (27)

II. The OSH Act, OSHA, and the Need for an Overhaul

A. What is the "OSH Act"?

At the core of the Occupational Safety and Health Act, are 29 USC 654(a)(1) and (2), known respectively as the OSH Act's "general duty" and "specific duty clauses." 29 USC 654(a)(1), the general duty clause, requires employers to furnish their employees with a working environment free from recognized hazards. 29 USC 654(a)(2), the specific duty clause, requires employers to comply with the specific workplace safety and health regulations promulgated by the Secretary of Labor. Violation of either clause may lead to civil or criminal sanctions against the employer.

B. What is Wrong With the OSH Act? An Overview

Weak sanctions for violations of the OSH Act, inadequate tools for keeping track of workplace safety trends, and inadequate protections for whistle blowers who elect to assert the right to a safe and healthy workplace which the OSH Act guarantees America's employees are among the factors that have blocked OSHA from fulfilling its mission.

1. Weak Criminal Penalties

The criminal penalty for harassing a wild animal on federal land is more severe than the current criminal penalty for willful violations of the OSH Act resulting in an employee's death. (28) In addition, the weakness of the penalties dramatically lessen the likelihood that a prosecutor will even pursue a criminal case for an OSH Act violation. (29) An estimated 294,488 employees died as a result of traumatic occupational injuries during the first 25 years of the OSH Act (1970-1994). (30) Yet, according to the U.S. Department of Labor, Office of the Solicitor's Information on Criminal Prosecutions, released on January 1, 1996, only two employers during that period have served time in jail as a result of willful violations of the OSH Act leading to an employee's death. (31)

2. Low Funding

Although OSHA has been given the Herculean task of monitoring and protecting the health and safety of over 100,000,000 American workers, it has been given a shoestring budget, amounting to a meager $353 million in 1999, with which to accomplish its mission. That translates roughly into a legislative commitment of only $3.50 per worker per year. As a result of the agency's anemic funding, 1,200 OSHA inspectors are tasked with protecting 105.8 million workers at 6.4 million workplaces. (32) To illustrate how thinly spread OSHA's inspectors are, consider this: there is but a single OSHA inspector per 5,334 worksites, or 88,166 employees. With such workloads, it is little wonder that OSHA inspectors are unable to adequately monitor and inspect worksites within their jurisdictions.

3. Weak Whistleblower Protections

One consequence of the agency's anemic funding and resulting understaffing is a decades-long workplace safety and health inspection backlog. (33) Because of that backlog, the role of whistleblowers in bringing about the OSH Act's goal of safer workplaces becomes doubly important. The limited number of OSHA inspectors makes it imperative that the agency's inspectors be able to prioritize and target the worksites most in need of inspection. Employee tips rank high among the best available means for bringing the more dangerous worksites to OSHA's attention, and are thus critical to the success of the OSH Act. If employees fear that either the exercise of their rights under the OSH Act or the performance of their civic duty will result in the loss of their jobs, it is unlikely that they would assert those rights or perform those duties - with the end result being that the very worksites in most need of OSHA's attention are ignored by the regulators.

OSHA's administrator, Charles Jeffress, concedes that there is a problem with weak whistleblower protection, and places the blame for that on the language of 29 USC 660(c), the whistleblower protection provision, (34) which he describes as "very weak." Mr. Jeffress would like legislation which would allow OSHA to air more public service spots, and increased funding for educating employees about how to file 660(c) complaints.

A 1992 U.S. House Committee on Education and Labor report identified several problems with the OSH Act's whistleblower protections. (35) First is the tight window within which employees must file complaints of 660(c) violations. The current OSH Act gives employees a mere 30 days in which to file a complaint of illegal personnel action. However, employees are often unaware that exercising their rights under the OSH Act is what motivated the adverse personnel action until much later. In the same vein, employees often do not learn of their rights under 660(c) until well after the expiration of the 30 day period.

Second, the U.S. Secretary of Labor is the sole enforcer of an employee's right to be free of discriminatory retaliation by an employer in violation of 660(c). An employee alleging retaliation by an employer for the employee's assertion of rights guaranteed by the OSH Act must await a determination by OSHA that there is a meritorious case. However, there is no time limit on OSHA's investigation of discrimination complaints.

C. Recent OSHA Performance

Although the Clinton administration has not displayed the outward hostility to OSHA that its predecessors did, its enforcement record is on par with or worse than that of the Reagan and Bush administrations. A review of OSHA enforcement data by Public Citizen's Health Research Group found that "on certain measures the Clinton administration's OSHA enforcement record is either similar to or worse than the Bush administration. On other measures, it is the worst since the OSH Act was promulgated." (36)

Public Citizen found:

"Depending on the enforcement measure used, compared to previous administrations, the Clinton administration's record on protecting worker safety is:

A. The worst in the history of the OSH Act

AND

B. Worse than the Bush administration's

AND

C. No better than the Bush administration's

Public Citizen traced weak enforcement efforts during the Clinton administration to the administration's Reinventing Government initiative. The effect of the initiative at OSHA has been to shift priorities away from inspections and strict enforcement, and to an emphasis on regulator-business partnerships. (38)

This shift in policy, Public Citizen found, has had "disastrous consequences." (39)

OSHA inspections plummeted in 1995, dropping 35 percent from 1994 levels. Inspections have risen since 1995, by the number of inspections in 1998 remains 22 percent below the 1992 level. (40)

The number of serious, willful and repeat (SWR) violations plummeted at the same time, dropping 51 percent in 1995. Since 1996, Public Citizen found, SWR citations have increased, but still remain lower than at the end of the Reagan administration. Approximately 5 percent of SWR violations are subsequently downgraded to non-SWR violations -- a percentage more than four times the rate during the Reagan administration. (41)

The decrease in inspection number or violation has not been offset by an increase in inspection efficiency during the Reinventing Government period, Public Citizen found. Relying on three indices -- ratio of programmed to unprogrammed inspections, number of violations detected per inspection and the average penalty per inspection -- Public Citizen concluded there has been no inspection efficiency improvements during the Clinton administration. (42)

III. The OSHA 2000 Reforms

A package of legislative reforms to address weaknesses in OSHA's statutory scheme is presented in the appendix. These "OSHA 2000 Reforms," combined with significantly increased funding for the agency, would strengthen the protections afforded to American's workers.

A. The Need for Tougher Criminal Penalties

1. Willful Violations Leading to Death or Serious Bodily Injury

The guiding principle of any penalty scheme should be that the costs of breaking the law, particularly when done so deliberately, exceeds the costs of observing it. Meting out weak criminal penalties for egregious violations and an average civil fine of $2,501 per inspection (43) (not per violation, but per inspection, which often encompasses a host of violations), OSHA does not hew to this principle - a consequence of both a weak statutory penalty scheme and insufficient agency enforcement vigor. The proposed OSHA reform legislation in the appendix centers on the need for toughening the OSH Act's weak criminal penalties for violation of workplace safety regulations, particularly the penalties for violations leading to an employee's death or serious injury.

i. "Willful Violations" and Petty Penalties

A "willful violation" (44) for OSH Act purposes involves voluntary action, coupled with an intentional disregard of the law. (45) The current OSH Act subjects those guilty of what amounts to reckless manslaughter to paltry misdemeanor penalties. 29 USC 666(e) provides that an employer's conviction of a "willful violation" leading to an employee's death may subject the employer to a criminal fine not exceeding $10,000, or imprisonment not exceeding six months, or both. A conviction for a second willful violation subjects the repeat offender to a criminal fine not exceeding $20,000, or imprisonment not exceeding one year, or both.

In addition, the current OSH Act's penalties for willful violations apply solely to employers whose deliberate violation of the law results in the death of an employee. A deliberate violation of the law which results in serious bodily harm that leaves an employee maimed, crippled, or chronically ill goes unpunished altogether under the present OSH Act's criminal penalty scheme.

ii. Tougher Penalties and the Deterrent Impact Thereof

The proposed OSHA reform legislation in the appendix would signal employers who deliberately choose to ignore workplace safety laws that they may no longer do so with impunity. It is a given that the purpose of workplace safety regulations is to protect the health and safety of workers, and not to maximize the amount of criminal fines collected or impose stiff prison terms on employers who violate workplace safety standards. However, meaningful criminal sanctions will improve employees' safety and health by deterring potential violators, (46) and a credible deterrent will help accomplish the OSH Act's purpose by bringing about broad compliance with workplace safety and health laws.

The proposed reform legislation would elevate the crime of willful violation of an OSHA standard or rule leading to an employee's death from a misdemeanor to a felony. The reform legislation would increase the potential imprisonment term for employers whose willful violation of an OSHA standard leads to an employee's death from the current maximum of six months for a first conviction, to a proposed maximum of ten years, and from the current maximum of one year for repeat offenders to a proposed maximum of twenty years.

In addition, the proposed legislation would punish deliberate violations of workplace safety laws which result in an employee's serious bodily injury. The phrase "serious bodily injury" is one with which criminal prosecutors are familiar, has an established meaning in the law, and is not vague. (47) The proposed legislation would further define and limit the phrase "serious bodily to injury" for purposes of the OSHA 2000 Overhaul Act to the subcategory of serious bodily harm which maims, renders disabled, or leaves an employee chronically ill. The legislation would provide that a deliberate violation of the OSH Act's workplace safety and health laws which result in serious bodily injury be punishable by a criminal fine of up to $50,000, imprisonment of up to five years, or both.

2. Measuring Safety: Manipulation of OSHA 200 Logs

i. Falsifying Federal Safety Forms

In order to track workplace safety trends and respond to them, OSHA relies on the OSHA 200 Log, in which employers are directed to record job-related injuries and illnesses. (48) However, the OSHA 200 Log is easy to manipulate since it is in the custody of the employer; and as OSHA's inspectors are thinly spread (one inspector per 5,334 workplaces or 88,166 employees), the odds of the records being double-checked are slim indeed.

Charles Jeffress, OSHA's current chief, acknowledged in an August 1999 interview that there is a serious problem with the OSHA 200 Logs, and that there is evidence that they are being systematically doctored. As an example, he referred to some of the most egregious of the recent revelations of such abuse. A crackdown by OSHA and Department of Justice investigators discovered that many targeted companies were in the habit of keeping two sets of workplace injury and illness records; one for the employer's insurer and OSHA, and the other for the companies' health clinics. (49)

ii. Deterring the Doctoring of Records

The proposed OSHA 2000 Overhaul legislation seeks to deter employers from falsifying the OSHA 200 Logs by increasing the criminal penalties for such abuses. 29 USC 666(g) of the current OSH Act subjects those who knowingly make false representations in documents which the Act requires employers to keep to a criminal fine not exceeding $1,000, imprisonment not exceeding six months, or both. The proposed reform legislation would transform the offense from a misdemeanor to a felony, and increase the potential imprisonment term from a maximum of six months to a maximum of six years.

B. Further Woes of the OSHA 200 Logs: Reactive vs Proactive

1. OSHA 200 Logs' Inability to Anticipate and Avert Harm

The OSHA 200 Logs also suffer from an exclusively reactive orientation. OSHA 200 Logs are predicated upon measuring safety by describing harm after its occurrence, instead of focusing on the indicia of potential future harm in order to get the agency involved before actual harm takes place.

Joe Anderson of the Paper and Allied Chemical Employees Union (PACE) observes that, in the chemical industry at least, "the OSHA 200 Logs of plants which blow up are often pretty good" as indicia of the logs' unreliability in regards to harm prevention, due to both the logs' retroactive nature and the improper manner in which they are kept by employers. (50) As to the reactive aspect of how OSHA goes about measuring workplace safety for purposes of early intervention, OSHA's chief, Charles Jeffress concedes that the agency has to focus more on the "near misses" and other indicia of imminent harm. (51)

2. Alternative to the OSHA 200 Logs: Proactive Safety Tracking

Seeking interventions before the actual occurrence of harm, some unions, notably the Oil, Chemical, and Atomic Workers (OCAW) and its successor, the Paper and Allied Chemical Employees (PACE), have been experimenting with alternatives to the OSHA Logs as means of measuring workplace safety. OCAW's solution was what its occupational safety and health officers called the "Triangle of Prevention Program" (TOP). Under TOP, logs are kept in which all problems at the job site are tracked, especially problems not recorded at present in the OSHA 200 Logs. For example, a small chemical spill on the worksite's floor which causes no immediate harm, and which is not required to be recorded in the OSHA logs, could nevertheless be an indicator of serious potential and dormant safety problems at the workplace. (52) Likewise for emergency responses.

A TOP-like tracking approach would transform OSHA's safety measuring system from a reactive to a proactive one. It would create a system that would help protect employees before harm befalls them, as opposed to lightly punishing negligent or unsafe employers in the wake of preventable tragedies.

At present, even employers are calling for a more proactive system. Assistant Secretary of Labor for Occupational Safety and Health Jeffress is aware that many employers are seeking a new recording system which relies upon the near-misses to measure the potential for future harm. The sticking point however lies in the disagreement of the parties (employers, OSHA, and worker safety activists) as to which indicia are to be used for assessing a workplace's potential for future harm. (53) In the petrochemicals industry, for example, both labor, as represented by the Oil Chemical, and Atomic Workers (OCAW) and its successor, the Paper and Allied Chemical Employees Union (PACE), and management, as represented by the Chemical Manufacturer's Association (CMA), agree that the OSHA 200 Log needs reform, and both groups have proposals for a tracking index system that are remarkably similar. According to Glen Irwin of PACE, the parties differ over whether the new tracking system should record all hospital visits that are linked to an industrial mishap (PACE's position) or only those entailing an overnight stay (CMA's position). A second division concerns whether all emergency responses, such as an ambulance dispatched to a workplace, should be placed in the injury tracking log (PACE) or only those emergency responses which also involve some substantial economic damage to the employer (CMA). (54)

The primary purpose of the OSH Act is to monitor and protect the safety and health of America's employees. The OSHA 2000 reform legislation would require that all hospital visits resulting from mishaps occurring at the job site be recorded in a new injury tracking system, regardless of economic damage. There is often no causal nexus between physical injury to an employee and economic damage to the employer. An unsafe piece of industrial machinery could easily maim an employee and return to operation as soon as it is wiped clean. Similarly, an office worker could easily get electrocuted at the job from exposed wires or a computer placed near a damp wall, without any substantial cost to the employer.

C. Increasing the Anemic Funding of Workplace Safety Regulation

Low funding is the most pervasive and pernicious of OSHA's problems. Many of the shortcomings of OSHA are directly related to the lack of funds allotted OSHA. In an informal telephone survey of union occupational safety and health officers, the shortage of OSHA inspectors was one of the most widely cited concerns. Currently, there are only 1,200 federal inspectors who are responsible for the several million work sites in the United States that fall under federal OSHA jurisdiction. Even under the most rigorous of schedules, it would take over 60 years for each work site in the U.S. to be inspected. (55)

At present, the agency's budget is a relatively paltry $350 million, which is insignificant when compared to, say, the $7.3 billion of the Environmental Protection Agency (EPA). Even the U.S. Fish & Wildlife's budget of $1.38 billion is nearly four times greater than OSHA's. According to Jeffress, for the agency to adequately monitor the American workplace, it would need a budget at least 20 times as much as Congress is allotting it now. At $7 billion, such a budget would still be less than that of the EPA. (56)

1. The Shifting Fortunes of OSHA's Budget

OSHA's budget (57) increased by 20% between 1992 ($296.54 million) and 1999 ($353 million), a slightly smaller increase than that of the overall federal budget, which increased by 23% during that same period, according to the Congressional Budget Office (CBO). Furthermore, unlike overall expenditures, which increased at a fairly steady rate, averaging 3% per year, within a range of 2.0% to 3.7%, the fortunes of OSHA's appropriations exhibit a more varied trend. Twice, OSHA's funding was cut, by 2.8% in 1993, and 2.4% in 1996. For the first half of the period (1993-1996), OSHA's budget growth was below average compared to the overall growth of the federal budget. (58) That trend was reversed in the past three years, and from 1997 through 1999, OSHA's budget increased at a faster clip than that of the overall federal budget. (59)

The ups and downs in the agency's budget allotment during the 1990's have brought about turmoil within the agency: OSHA Administrator Charles Jeffress decries the shortage of inspection staff and the 20% reduction in the number of inspectors which occurred in the 1990's. (60) Chronic Congressional underfunding has left the agency hamstrung.

2. Congress, Specific Mandates, and OSHA's Mission

By specifying certain levels of funding for various OSHA activities, Congress determines the broad parameters of OSHA's regulatory operations.

Enforcement as a share of the total OSHA budget has been steadily decreasing in recent years. (61) In the period 1992-1995, enforcement of workplace safety and health laws claimed an average of 45% of OSHA's overall budget. 1996 saw that percentage drop to 40%, and the decline continues, with enforcement claiming a low of 37.9% in 1999. The proposed OSHA 2000 legislation seeks to halt and reverse that trend by stipulating that 50% of OSHA's budget be allocated to enforcement of the OSH Act.

3. Employer Perspective: Uneven Inspections

"…Many employers particularly smaller ones simply cannot make the necessary investment in health and safety, and survive competitively, unless all are compelled to do so. The competitive disadvantage of the more conscientious employer is especially evident where there is a long period between exposure to a hazard and manifestation of an illness. In such instances a particular employer has no economic incentive to invest in current precautions, not even in the reduction of workmen's compensation costs, because he will seldom have to pay for the consequences of his own neglect." (62)

Low funding for OSHA leads to a shortage of OSHA inspectors, and the shortage of OSHA inspectors leads not only to lax enforcement of the law, but even worse: uneven enforcement of the law. With the resources and inspectors available at present, OSHA is able to inspect the job sites covered by its jurisdiction but once every 17 years as a best case scenario in the state of Oregon, and but once every 279 years in the worst case scenario in the state of Kansas. (63)

As a result of the shortage of inspectors, OSHA inspections of job sites are by necessity spotty. Only one business out of hundreds of competitors is forced to comply with regulations which others may disregard with impunity. More inspectors would result in more consistent enforcement of OSH regulations, with the cost of compliance borne by businesses within a specific sector, rather than just those very few visited by OSHA's inspectors under the present regime.

D. OSHA and the Slows: Promulgation of Safety Standards

1. The Process of Promulgating Workplace Safety Standards

Once the Secretary of Labor declares the intent to promulgate a workplace safety standard, the OSH Act affords those objecting to the proposed standard three opportunities to oppose or block it. First, 29 USC 655(b)(2) affords interested persons the right to submit written data or comments regarding a proposed standard during the period in which a review committee is debating the merits of the proposed safety standard submitted to it by the Secretary of Labor. Should the review committee approve the proposed standard, 29 USC 655(b)(3) directs the Secretary of Labor to grant hearings to those objecting to the promulgation of the proposed standard. Should opponents of the proposed workplace safety standard fail to sway the Secretary of Labor and derail the proposed standard during the public hearing, 29 USC 655(f) allows opponents of the proposed standard to file a petition with the U.S. court of appeals for the circuit in which they reside.

2. The Need for Workplace Safety Standards

Both the U.S. Department of Health and Human Services' National Institute for Occupational Safety and Health (NIOSH), an agency created specifically to advise OSHA about the merits of proposed workplace safety standards, and the majority of the medical science community are in agreement that promulgation of new workplace safety standards (e.g. chromium, beryllium, ergonomics, injury tracking indices, proactive safety management) would help protect the lives and preserve the health of thousands, if not millions, of American working men and women. (64)

Where OSHA has gotten around to promulgating workplace safety and health standards, those standards have brought about tremendous improvements to the occupational safety and health of those working in the field covered by such measures. (65) Setting workplace safety standards saves lives and prevents injuries. That realization is what makes OSHA's failure to promulgate more safety standards intolerable. Every year, thousands of American workers must risk life, limb, and the threat of debilitating diseases resulting from readily recognizable workplace hazards even though the means for reducing such risks are readily available.

3. Slowness of the Standard Promulgation Process

Regulation relies on the policing of rules, but a predicate for the policing of such rules is their promulgation. Susan Wilburn of the American Nurses Association uses OSHA's tuberculosis standard to illustrate the agency's slow workplace safety standard promulgation process. It took a decade between initiation of the tuberculosis standard promulgation process and its final promulgation - and the standard has yet to go into effect. (66) This example is typical. The majority of workplace safety activists and labor union occupational safety and health officers contacted during the course of research for this report tell a similar tale about the inordinately lengthy time it takes OSHA to promulgate needed occupational safety standards.

Few workplace safety standards have been promulgated during the past 18 years, especially in the field of toxic chemicals used in the workplace. (67) The problem is not rooted in an inability to accurately identify harmful substances, for the National Institute for Occupational Safety and Health (NIOSH) and the overwhelming majority of the medical science community are in agreement regarding the risk posed by excessive exposure to many chemicals commonly used in today's workplace. The problem is that the standards promulgation process allows opponents of promulgation many opportunities for obstruction.

Even the statutory reforms proposed here, however, would be both imperfect and inadequate. For the standard-setting process to work effectively, there must be a strong commitment by the executive branch to prioritize worker health and safety, and a refusal to bow to inevitable employer pressures. Such a commitment has been sorely lacking in the past two decades, under both Republican and Democratic administrations, with the Clinton administration standard promulgation record on par with that of the Reagan administration. Through 1999, the only finalized health standards - covering workplace toxics - issued during the Clinton administration have been for 1,3 Butadiene and Methylene Chloride. (68)

4. Reforming the Promulgation of Standards Process

The proposed OSHA 2000 legislation does not seek to remove the procedural safeguards afforded employers seeking to challenge a workplace safety standard in the process of being promulgated. Rather, the proposal seeks to allow those who stand to benefit the most from the promulgation of a standard, the employees, an opportunity to challenge the Secretary of Labor's failure to promulgate. At present, the standard-setting process is imbalanced, with those opposed to promulgation given greater rights. This Act proposes to rectify that imbalance by allowing the other side, those in favor of promulgation, equal standing.

The proposed legislation would afford proponents of workplace safety standards both the prospect of requesting OSHA consideration of proposed standards, as well as the opportunity to meaningfully challenge OSHA actions which adversely affect them. Both are opportunities which have long been afforded opponents of workplace safety standards, claiming adverse economic effects, but denied proponents seeking action in order to protect human life, limb and health.

E. Strengthening Weak Whistleblower Protections

"…The task at hand is to develop structures that will foster worker responsibility and will enable individual employees to protect themselves according to their self-perceived needs. The worker in the plant is well placed to promote the implementation of OSHA and related safety and health efforts. The challenge is to train him and to provide him with powerful outside political, professional, and educational support. Thus equipped and fortified, the individual worker can check on compliance dates, question injury statistics, and watch the posting of information by the company. He can help gather information essential to collective bargaining. He can learn what kind of medical, legal, and scientific services he lacks and how to obtain them locally." (69)

Nearly three decades have gone by since the preceding paragraph was penned, but its words still summarize in a nutshell a key ingredient for a successful OSHA: an informed workforce that is actively engaged in monitoring and participating in removing the risks to its safety and health, and which is free from fear of employer retaliation for such activism.

The proposed OSHA 2000 legislation seeks to strengthen the current OSH Act's whistleblower protections, as well as provide a deterrent to employers who are currently able to violate the OSH Act's whistleblower protections with impunity. The proposed legislation would expand the remedies afforded the victims of illegal retaliation by employers from reinstatement with back pay, to reinstatement with triple back pay. Furthermore, the proposal would afford the victims of illegal employer discrimination the right to independently pursue their claims of illegal discrimination by employers in retaliation for an employee's exercise of rights provided employees under the OSH Act.

1. The "Chilling Effect" of Weak Whistleblower Protections

A common refrain, voiced by most union occupational safety and health officers, as well as workplace safety activists at the grassroots level who were contacted during the course of this study, is that OSHA has no meaningful whistleblower protection. These safety advocates say that 29 USC 660(c), the provision prohibiting retaliation by employers against employees who voice concerns about violation of their rights to safe and healthy working conditions, is so seldom enforced that whistleblower protection has become meaningless.

A 1992 survey of OSHA inspectors conducted by the Government Accounting Office (GAO) found that fewer than 10 percent of OSHA inspectors believed that the current OSH Act protects employees who exercise the rights afforded them by workplace safety and health laws from retaliation by their employers. (70) The obvious result is a chilling effect upon would-be OSHA complainants, whose fear of employer reprisals is not counterbalanced by any reasonable assurance of OSHA protection.

The fear of employer retaliation is doubly applicable to would-be OSHA complainants who are not union members - the majority of today's workforce - and who consequently do not have a labor union to sustain them through a fight against employer retaliation. In the words of a workplace safety activist leader interviewed for this report: "Educating non-unionized workers about their OSHA rights will only get them fired." (71)

2. Employees' Right to Bring Private Action

A 1992 House Education and Labor Committee report illustrated the problems associated with the absence of a time limit or deadline for OSHA's investigation by citing the testimony of OSHA officials and Louis Nagy, an employee who was fired the day after he told co-workers that he was going to request an OSHA inspection. At the end of a bureaucratic odyssey spanning several years, OSHA determined that Mr. Nagy was the victim of improper employer retaliation. Several years more passed after that finding however, and no action had been taken against the employer. In the meantime, Mr. Nagy, who had done no wrong, was without a job or means of support, nor did he have the right to pursue his claim independently. As a result, the employee suffered, and the employer, whom OSHA believed had violated the law, was not penalized for the alleged illegal retaliation. (72)

The proposed OSHA 2000 legislation, operating from the premise that a right without a remedy is meaningless, seeks to improve the lot of employees who find themselves in straits similar to Mr. Nagy's. It would grant employees the right - denied them under the current OSH Act - to independently pursue claims of illegal retaliation against employers, following a determination by OSHA that an employee's claim of illegal retaliation is meritorious.

CONCLUSION

The formula for a successful OSHA is glaringly simple: More funds are needed for more inspectors, and for a better-equipped standards-setting department that will ease the current backlog of rules and standards ripe for promulgation. Stronger criminal penalties are needed for violations of the OSH Act, particularly willful violations that lead to death or serious bodily injury. Finally, stronger protections are needed for whistleblowers. The reforms of the OSHA 2000 Overhaul legislation would address many of the gravest problems plaguing the current OSH` Act, and should be enacted into law in order to enhance the safety and health of America's workforce.






Endnotes:

1. Senate Rep. NO. 91-1282, at 2 (1970) (purpose and legislative history of the OSH Act).

2. 29 USC 651-678 (1998).

3. Introduction/ Preamble to the Occupational Health & Safety Act of 1970, 29 USC 651.

4. OSHA Marches Out its Truth Team, Washington Post, F1, September 3, 1995.

5. Ibid.

6. Ibid.

7. Ibid.

8. H.R. Rep. No. 102-663, pt. 1, at 38 (1992).

9. National Safety Council, Accident Facts, (1995).

10. Jim Brunner, "Grieving Brother Sues -- and Works At -- Refinery," Seattle Times, November 24, 1999, at A14.

11. Bernadette Tansey, "Tosco to Pay $2 Million in Fatal Flash Fire; Firm pleads no contest to '99 refinery blaze," San Francisco Chronicle, January 7, 2000, at A1.

12. Jim Lynch and Steve Suo, "Oregon to Levy Record Fine for Portland Airport Parking Garage Collapse," The Oregonian, January 21, 1998.

13. "Investigators look for answers in rubble," Detroit News, July 16, 1999, at A9.

14. "Phillips Blast Kills Two, Injures Four," Chemical Week, June 30, 1999, at 5.

15. Mike Roarke, "L&I levies $34,800 Fine in Fatal Blast; Moses Lake Company Cited for Alleged Safety Violations," The Spokesman-Review, April 15, 1999, at A14.

16. Dept. Of Occupational Safety and Health, AFL-CIO, Safe Jobs: 25 Years of Worker Safety and Health in the U.S. 32 (1996).

17. Known as the OSHA 200 Logs, promulgated by the Secretary of Labor under the authority of 29 USC 657(c) (1998).

18. H.R. Rep. No. 102-663, pt. 1, at 60-61 (1992).

19. For fuller discussion, see "Measuring Workplace Safety," infra.

20. Peter Dorman, Markets and Mortality, 128. Cambridge University Press, Great Britain (1996).

21. See National Safety Council and Bureau of Labor Statistics data reported in AFL-CIO Department of Occupational Safety and Health, Death on the Job: The Toll of Neglect, 1999.

22. Daniel M. Berman, Death on the Job: Occupational Safety and Health Struggles in the United States, 171. Monthly Review Press, NY (1978).

23. Dorman, supra, at 130-131.

24. Dorman, supra, at 128.

25. Which is not too surprising, considering how thinly spread North Carolina's state administered OSHA program was. It was not until after the Hamlet tragedy that the state legislature increased the number of safety inspectors from 50 to 100. It would still take those 100 inspectors 47 years (see Years Needed For OSHA to Inspect All Jobsites chart, infra) to inspect all the job sites in the state, but it is an improvement over the 94 years one supposes would have taken 50 inspectors.

26. "Meat Plant Owner Pleads Guilty in a Blaze that Killed 25 people," NY Times, Sep 15, 1992, at A20.

27. See, "Measuring Workplace Safety," infra.

28. H.R. Rep. 102-663, pt. 1, at 39 (1992). Also, contrast 29 USC 666(e) (providing for imprisonment of up to 6 months for a violation of the OSH Act resulting in death) with 16 USC 666(a) (providing for imprisonment of up to a year for violation of U.S. wildlife conservation laws).

29. Ibid, at 58.

30. National Safety Council, Accident Facts (1994 Edition), and Bureau of Labor Statistics, U.S. Department of Labor, Census of Fatal Occupational Injuries, (1994).

31. Also see Criminal Referrals by OSHA to Department of Justice or U.S. Attorneys (Dec. 18, 1996; updated periodically by the U.S. Department of Labor).

32. Occupational Safety and Health Administration, U.S. Department of Labor, OSHA Facts (1996).

33. See chart ("Years Needed For OSHA to Inspect All Jobsites,") supra.

34. 0 29 USC 660(c) Discharge or discrimination against employee for exercise of rights under 29 USCS §§ 651 et seq.; prohibition; procedure for relief [more commonly referred to as 11(c) of the OSHAct]

(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.

(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.

(3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph (2) of this subsection.

35. H.R. Rep. No. 102-663, pt. 1 at 59-60 (1992).

36. Peter Lurie, Marti Long, & Sidney Wolfe, Public Citizen, Reinventing OSHA: Dangerous Reductions in Enforcement During the Clinton Administration ___ (1999).

37. Ibid.

38. Ibid.

39. Ibid.

40. Ibid.

41. Ibid.

42. Ibid.

43. Ibid, at 8.

44. The OSH Act's criminal sanctions are triggered by (i) an employer's (ii) willful violation of (iii) a specific standard or regulation (iv) resulting in an employee's death. 29 USC 666(e).

45. See, e.g., Reich v. Trinity Indus. Inc. 16 F.3d 1149, 1155 (11th Cir. 1994) (employer's awareness of OSHA standards and intentional disregard thereof constitutes a "willful violation"). Also see Conie Construction v. Reich, 73 F.3d 382, 384 (D.C. Cir. 1995) (employer's knowledge of OSHA excavation requirements and disregard thereof constituted plain indifference or intentional disregard, and therefore constituted a "willful violation").

46. Ibid, at 57.

47. Occupational Safety and Health Reform, 1992: Hearings on H.R. 3160 Before the Committee on Education and Labor, 102nd Cong. H.R. Rep. 102-663, pt. 1, at 58 (1992) (testimony of Michael McCann, District Attorney for Milwaukee County, Wisconsin).

48. 29 USC 657(c)(2) (1998).

49. Interview with Charles Jeffress, Assistant Secretary of Labor for Occupational Safety and Health, in Washington, DC (Aug. 6, 1999), by Ralph Nader and Robert Weissman.

50. Telephone Interview with PACE Occupational Safety and Health Directors, supra.

51. Interview with Jeffress, supra.

52. E.g. whether a breakdown in the workplace's operating procedures caused a near-catastrophe, or whether the workplace operating procedures were faulty or unsafe. Systemic awareness of such things would allow management to step in and correct matters to avert future potential for harm, and before the accumulation of such near misses triggers an OSHA inspection.

53. Interview with Jeffress, supra.

54. Telephone Interview with Glen Erwin, Occupational Safety and Health Director, Paper and Allied Chemicals Employees Union, (Jun. 23, 1999).

55. See chart "Years Needed for OSHA to Inspect All Worksites," supra.

56. Interview with Jeffress, supra.

57. The data on which the subsequent analysis is based was supplied by OSHA's budget office. It comprises the total budget for OSHA from FY 1992 through FY 1999. Also included is a breakdown of the activities for which the funds were allocated (see graph "Where OSHA's Budget Goes") Data concerning the total federal budget was supplied by the Congressional Budget Office (CBO).

58. According to CBO data, OSHA's budget grew at a rate of 0.65% annually during that period, whereas the overall federal budget grew at a healthier 3.1% year.

59. 5.2% was OSHA's annual budget growth in the period 1997-1999, as opposed to 2.9% growth for the overall federal budget.

60. Interview with Jeffress, supra.

61. REINVENTING OSHA, at 13-19.

62. S. Rep. No. 91-1282, 91st Cong., 2d Sess. 4 (1970)

63. See chart (Years Needed for OSHA to Inspect All Jobsites) opposite pp 16, supra.

64. The following are examples of standards which have been delayed for a decade or more: Ten years for the ergonomics standard. Interview with Peg Seminario, Occupational Safety and Health Director of the AFL-CIO, in Washington, DC (Jun. 27, 1999). Nine years and counting for the injury tracking index standard. Telephone interview with Glen Erwin, Occupational Safety and Health Officer of the Paper and Allied Chemicals Employees union (PACE), (Jun. 30, 1999). Twelve years and counting for the proactive safety program standard. Interview with Joel Shufro, President, New York Coalition on Occupational Safety and Health (NYCOSH), in NYC, NY (Jul. 28, 1999).

65. DEPARTMENT OF OCCUPATIONAL SAFETY AND HEALTH, AFL-CIO, SAFE JOBS: 25 YEARS OF WORKER SAFETY AND HEALTH IN THE U.S., at 70-72 (analyzing the caU.S.al nexU.S. between improvements in worker safety in specific occupational fields, and the promulgation of OSHA standards: grain handling (90% reduction in fatalities following promulgation of grain handling standard) , trenches (35% reduction in fatalities from trench cave-ins), cotton dU.S.t (20% of the textile workforce suffered from "brown-lung" disease, reduced to 1% following promulgation of a cotton dU.S.t standard), and lead (66% drop in number of workers with high blood-lead levels within five years of promulgation of lead standard)).

66. Telephone interview with Susan Wilburn, Occupational Safety and Health Officer of the American Nurses Association (ANA) (July 20, 1999).

67. Jeffress estimates that at least 20 new chemicals are introduced into the workplace every year, but OSHA has the capacity to review only 3, and has been reviewing even less. Interview with Jeffress, supra.

68. Lurie, et. al, supra.

69. Joseph A. Page and Mary-Win O'Brien, Bitter Wages, 249. Grossman Publishers, NY, (1973).

70. H.R. Rep. No. 102-663, pt. 1, at 59 (1992).

71. Interview with Jim Moran, President of the Philadelphia Coalition on Occupational Health and Safety, in Philadelphia, PA (Jul. 14, 1999).

72. H.R. Rep. No. 102-663, pt. 1, at 60 (1992).