United States. Congress. Senate. Committee on Labo.

OSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of online

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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 8 of 17)
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Currently, Sec. 4(bXl), 29 U.S.C. Sec. 653(bXl) provides that the OSHAct shall
not "apply to working conditions of employees with respect to which other federal
agencies exercise statutory authority to prescribe or enforce standards or regula-
tions affecting occupational safety and health." This provision has lead to widely dis-
parate judicial interpretations as to when OSHA's jurisdiction is preempted, i* It is
clear, however, that the fact that another agency diaes not provide protection which
is as effective as that afforded bv OSHA would not preclude preemption. *> By con-
trast, the amendment proposed by S. 576 would put the focus where it belongs: on
whether another agency provides the workers in Question with protection which is
comparable to that of OSHA. This standard would lead to far greater workplace
safety for farmworkers.

A. Under S. 575's Approach, Farmworkers Will Gain Substantial Benefits From
the HCS and Other ExistinR OSHA Protections

The advantages of S. 575 s approach can be seen by comparing the EPA's regula-
tion of workplace safety with regard to agricultural pesticides with that of OSHA.
Beginning on April 15, 1994, EPA's Worker Protection Standard will afford farm-
workers with some modest protections. Under existing law, the WPS — inadequate
though it is — would be suflicient to preempt OSHA jurisdiction in regard to oes-
ticide safety in agriculture. Under S. 575, however, OSHA would be able to regulate
these hazards because none of the principal protections of the HCS (and other provi-
sions) are made available to agricultural workers by the EPA. For example:

1. Ri^t to Know the Name of the Chemicals to Which The Workers are Exposed:
Under the HCS, employers must disclose the names of aU toxic chemicals in the
workplace. Under EPA's WPS, a grower need only keep a list of the pesticides ap-
plied (or subject to a reentry interval) in the last 30 days in the particular field m
which the worker is engaged. This is wholly inadequate since the EPA itself has
recognized that pesticide residues can cause (and have caused) injury more than 30
days after application or expiration of a reentry interval. 21 In addition, the WPS
list would not inform workers of pesticides which may injure them by drift, when
they are applied in an adjacent field.

2. Training: The HCS requires worker training with respect to the particular
chemicals in the workplace before the worker begins his or her initial assignnrient.
By contrast, under EPA's WPS, a worker will only receive general pesticide safety
training and no information concerning safety practices with the specific pesticides
used on that farm. In addition, the Wre-required training need only take place after
a worker has worked for 16 days in a field which has been treated with pesticides
(or been subject to a reentry interval) within the last 30 days. In other words, under
the EPA's scheme first a worker is exposed and possibly poisoned, then he is
trained. This makes no sense!

3. Material Safety Data Sheet: The HCS requires employers to give workers ac-
cess to the MSDS covering each chemical in the workplace. There is no EPA provi-
sion for access to this information. The pesticide labels, which are not available to
the vast majority of the workers do not have comparable information, e.g., they lack
information concerning the short and long term health effects caused by exposure.

4. Anti-retaliation Protection: The WPS prohibits an employer from retaliating
against a farmworker for obeying EPA regulations, but it has no mechanism for en-
forcing this provision. By contrast, under the OSHAct, a worker who refuses to vio-
late a standard or files a complaint concerning a violation has administrative rem-
edies available in case he is disciplined or discharged for his action. 22 This type of
protection is critical for farmworkers who earn on average less than $6,000 per year
and can ill afford to jeopardize their employment.

t^Rasenstock et al., Chronic Central Nervous System Effects of Acute Organophoephate Pes-
ticide Intoxication, 338 The Lancet 223 (1991); Savage et al., Chronic Neurological Sequelae of
Acture Organophosphate Pesticide Poisoning, 41 Archives of Environmental Health 38 (1988).

i» Preemption depends upon whether another Federal agency has regulated the specific haz-
ard at issue. As one court described it, "comprehensive — treatment of — fire p»rotection will dis-
place all OSHA regulations on fire protection, but regulation of portable fire extinguishers will
not displace OSHA standards on fire alarm signaling systems." In re Inspection of Norfolk
Dredging Co., 783 F.2d 1526, 1531 (11th Cir. 1986) quoting Southern Pacific Transporation Co.
v. Usery, 539 F.2d 386, 391 (D.C. Cir. 1976).

aoSee Mushroom Transp. Co. Inc., OSHRC No. 1588, 1 OSHC 1390 (1973).

ai57 Fed. Reg. 38102, 38123 (1992).

a See 29 U.S. C. Sec 660(c).


5. Enforcement: By letter of October 20, 1988, the EPA informed OSHA that it
did not intend to conduct any programmed inspections of agricultural establish-
ments to secure compliance with the WPS. Instead, all of EPA s enforcement efforts
will be driven by complaints. Similarly, many of the states which enforce EPA regu-
lations, like North Carolina, inspect only in response to complaints. This is grossly
inadequate. By contrast, while OSHA's enforcement of its agricultural standards has
left much to be desired, it far surpasses the EPA's enforcement efforts. In FY 1992,
for example, OSHA conducted 504 routine field sanitation inspections and 10 inspec-
tions which were prompted by complaints. Similarly, the state-plan states conducted
426 field sanitation inspections of which only 31 were in response to complaints. As
these figures demonstrate, an enforcement system that is triggered entirely by com-
plaints will result in almost no inspections at all. This will lead to generalized ne-
glect of the regulations since it is well-known that in order to secure widespread
compliance with new requirements an enforcement agency must visibly enforce the
standards by conducting frequent inspections.

6. Occupational Illness Reporting: Under existing EPA regulations, there is no re-
quirement that employers record or report occupational illnesses or iryuries caused
by pesticide exposure. As a conseauence, government regulators are deprived of a
critical tool in identifying the proaucts and practices that cause substantial harm.
By contrast, under OSHA regulation3,employers are required to keep a log of occu-
pational illnesses and injuries 23 and make these records available to government
inspectors upon request. 24

Thus, in every respect the EPA regulations and enforcement efforts are not as ef-
fective as the protections of OSHA. In light of the many serious illnesses and inju-
ries caused by pesticide poisoning, farmworkers deserve the increased protections af-
forded by OSHA.

B. Under S. 575 Farmworkers Will Also Benefit From Other Aspects of the OSHA
Reform Legislation

Since under S. 575's approach, OSHA would not be preempted from regulating
workplace safety with respect to pesticides, farmworkers would benefit from many
other provisions of S. 575 as well. For example, the new law would: recjuire employ-
ers to nave a health and safety program; require annual refresher traming on pes-
ticide hazards, institute employer-employee health and safety committees on larger
farms, require OSHA to issue permissible exposure limits in agriculture, institute
a health surveillance program for employees exposed to OSHA regulated toxins, re-
quire OSHA to respond to oral as well as written complaints, allow employees to
refuse to work in imminently hazardous conditions, etc. These additional protections
would increase farmworkers knowledge of the pesticide hazards they face on the job
and substantially increase their ability to protect themselves from injury.


This past week the U.S. Department of Labor reported that farm work is the sec-
ond most dangerous occupation in the United States (second only to mining). To pre-
vent many oi the illnesses and injuries which maim and kill agricultural workers
and their families each year, farmworkers — like all other workers — should be
"assure[d] so far as possible . . . safe and healthful working conditions." 25

The primary obstacle to OSHA's regulation of hazards in agriculture is the OSHA
appropriations rider which, for more than a decade, has prohibited OSHA from reg-
ulating hazards on farms which employ fewer than 11 workers and lack a farm
labor camp. This has effectively ousted OSHA of jurisdiction over more than two-
thirds of all farms.

The second major obstacle that hampers OSHA's effectiveness in agriculture is
that many OSHA standards specifically forbid application in agriculture. 28 This,
too, unfairly disadvantages farmworkers.

Third, OSHA enforcement is limited by the small number of inspectors available
to it. Currently under consideration at the U.S. Department of Labor (DOL) is a

Blan to shift all DOL enforcement activities in agriculture to the Wage and Hour
•ivision. This would be of great benefit to farmworkers and would substantially in-
crease the visibility and effectiveness of OSHA enforcement on the farm.

In the absence of OSHA regulations, the health of our nation's farmworkers has
unnecessarily been put at risk. The effect of this neglect has been that farmworkers'
life expectancy is twenty years shorter than that of the rest of the population. It
is time to treat farmworkers like all other workers and fully protect tneir health

M29C.F.R. Sec. 1904.2.
*«Id. at Sec. 1904.7.
M See 29 U.S.C. Sec. 651.
MSee 29 C.F.R Sec. 1910.


and safety. The enactment of S. 575 would go a long way toward achieving that



Washington, DC. October 15, 1993.

The Honorable HOWARD M. Metzenbaum,
United States Senate, Washington, DC.

Dear Senator Metzenbaum: Thank you very much for affording us the oppor-
tunity to testify in support of the Comprehensive Occupational Safety and Health
Act, S. 575. We would like to make the following response to the questions you
posed by letter of October 6 1993:

1. We believe that the Occupational Safety and Health Administration (OSHA)
could do a better job than the EPA in protecting farmworkers in the following re-
spects: First, OSHA's Hazard Communication Standard reouires employers to pro-
vide chemical specific safety training to their employees before the workers are ex-
posed to a chemical. By contrast, under the EPA Worker Protection Standard, work-
ers will only receive general pesticide safety information (not chemical specific train-
ing) and even this would only occur after the worker has been exposed to a pesticide
for up to 16 days. Second, farmworkers would benefit if OSHAs other regulatory
recpiirements applied to pesticides, e.g., the requirement that employers keep
records of illnesses and injuries caused by occupational pesticide exposure. Third,
OSHA enforcement of its regulations is preferable in that of the EPA in that OSHA
itself has direct enforcement authority in about half the states and OSHA performs
some routine inspections to monitor compliance with its regulations. The EPA, on
the other hand, enforces its regulations in only two states and, even there, only re-
sponds to complaints, rather than conducting routine compliance investigations.

The only ways in which EPA jurisdiction is preferable is that of OSHA is that
the EPA regulations govern all farms, regardless of size and the Federal Insecticide
Rodenticide and Fungicide Act, enforced by the EPA, permits the states to impose
requirements which are more stringent than the federal standards. We would urge
you to include within the OSHA Reform legislation provisions which would elimi-
nate the prohibition against OSHA regulation of small farms and which would per-
mit more stringent state regulation of pesticide hazards.

2. We have sought help for farmworiiers from both OSHA and EPA. With regard
to OSHA, on one occasion we were successful in getting OSHA to issue a Compli-
ance Directive correcting a misunderstanding which had arisen concerning enforce-
ment of the Field Sanitation Standard. We have also urged the U.S. Department
of Labor to consolidate all its enforcement activities on behalf of farmworkers (in-
cluding enforcement of applicable OSHA standards) to the Wage and Hour Division.
We understand that our request is under consideration.

With regard to the EPA, we have met with EPA officials in an effort to secure
improvements in the Worker Protection Standard, including provisions which would
be comparable to OSHA's Hazard Communication Standard. They are studying
these proposals. We have also contacted the EPA on a number of occasions when
workers were poisoned by pesticides and they were unable to be of direct assistance
because their investigation and enforcement activities largely have been delegated
to the states.

If you would like any additional information, please do not hesitate to contact me.
Thank you again for allowing us to testify.

Sincerely, ^

Shelley Davis
Attorney at Law

Senator Metzenbaum. Thank you very much, Shelly.

I would say to all of you that it is almost unbelievable that in
a civilized society, we are not protecting those people working in
jobs, some of whom are working for the Federal Government. Simi-
larly, FAA and EPA have claimed jurisdiction over airline and farm
workers' safety, but have done almost nothing to protect them.

Other Federal agencies that fail to protect their workers but
claim jurisdiction include the Federal Rail Administration with re-
spect to railroad workers, and the Department of Transportation
with respect to truck drivers. The OSHA reform bill would create
a presumption of coverage of all workers unless another agency
provides an equal level of protection. I am going to do my
damndest to pass this bill before I leave the U.S. Senate.


We will have written questions for the witnesses, and the hear-
ing record will remain open for 2 weeks. My apologies to you for
being abrupt, but suffice it to say you have convinced me, and I
will attempt to convince my colleagues. Your testimony is ex-
tremely valuable to us.

Thank you very much.

[Additional statements and material submitted for the record fol-

Prepared Statement of Senator Bingaman

Mr. Chairman, I am very interested in the OSHA reform propos-
als before us, and think this hearing, including possible coverage
of Federal employees, is especially important.

I would like to publicly extend my condolences to Mr. Toledo and
his family on the loss of his brother, Frankie. As Mr. Toledo will
testify, something went terribly wrong with the controlled bum at
Paiarito Peak last spring in New Mexico that resulted in Frankie
Toledo's death. The tragedy is made worse by indications that the
incident might have been prevented. I have written to the Chief
Forester asking him to personally investigate this incident, as well
as the issue of cooperation with OSHA in its investigation. I ask
that my correspondence with Chief Robertson be made part of the
record of this hearing. Clearly, Federal workers should be given the
same protection as other workers, and we must make sure that
this protection exists.

It is my hope that we can ensure that we never have another

tragedy like the one that occurred at Pajarito Peak last April.

United States Senate
Washington, DC.. October 4, 1993
The Honorable F. Dale Robertson
Chief Forester, United States Forest Service,
201 14th Street SW, Washington, DC. 20250

Dear Chief: Tomorrow ailemoon, the Senate Subcommittee on Labor will hear
testimony from Mr. Clemente Toledo of Jemez Pueblo, NM, regarding the death of
his brother during a controlled bum at Paiarito Peak, NM during April of this year.
Several other firefighters were injured in tne same incident.

It is my understanding that the Occupational Safety and Health Administration
today notified the Forest Service of failure to abate several of the hazards cited in
the Toledo incident. It is my further understanding that there are serious allega-
tions regarding the level of cooperation and integrity of the Forest Service in tne
investigation of Mr. Frank Toledo's death, as well as the Forest Service's efforts to
ensure that other incidents like this do not happen in the future.

I am deeply concerned with the nature of these allegations. I urge you to person-
ally look into the circumstances surrounding Mr. Toledo's death, and I request that
you share with me what you learn.

This matter is simply too important not to resolve in a manner that the Forest
Service does all in its power to ensure there will never be an accident like the one
at Pajarito Peak again.

Jeff Bingaman
United States Senator

Prepared Statement of W. Patrick O'Connor

LMr. Chairman and members of the subcommittee, my name is W. Patrick O'Con-
nor. I am a National Representative for the American Federation of Government
Employees. I have been an employee of AFGE for ten years, representing the states
of Ohio, Kentucky and Indiana for eight years, and Colorado, Wyoming, Arizona,
New Mexico, and Utah for the past two years. Prior to that I was a federal employee


for ten years. I thank the members of the subcommittee for inviting me to appear

before them today. . .. .1 v *

For the past ten years I have been involved m many safety mspections throuehout
the government. I have been involved in safety negotiations, arbitrations and dis-
putes. I have found one constant among all of these activities, a lack of concern by
Federal managers for the health and' safety of their employees.

Health and safety is a threat to their simplistic bureaucratic way of doing busi-
ness. I have observed a supervisor at NASA m Cleveland eat chunks of asbestos to
demonstrate that it did not hurt a real man, and that the scheduled inspection
would only impede his operation. 1 xu •

I have seen managers at Veterans' hospitals order employees to plunge their
hands into buckets of corrosives because gloves were not available and they were
under pressure to get the job done quickly.

I have seen agency after agency refuse to allow OSHA inspectors access to areas
for inspection. I nave seen agency after agency refuse to abate or correct safety and
health problems identified by O^HA inspectors, and deny union representatives the
right to accompany OSHA inspectors. 1 • m 1 j

My main story today is the tragic and unnecessary death of Frankie Toledo.

On April 23, 1993, I received a call from Herman Salazar, President of AFGE No.
3137. He informed me that a fatality had occurred during a controlled bum at the
Paiarito Peak in New Mexico the prior day. He told me his contract specifically
called for a union representative to be present during any safety inspection. This
day he was being denied that right because the Forest Service inspection was being
supervised by the Region, therefore the union could not be involved. This was a clas-
sic word game that we often see. Because of the seriousness of the matter, Mr.
Salazar asked me to contact the Labor Relations Personnel Officer of the Forest
Service, Mr. Ron Benegas. to try to explain to him that beyond contractual ref-
erence, the union had a rignt by law to be a part of the inspection.

I contacted Mr. Benegas shortly afler. I tried to explain to Mr. Benegas that the
union had the right to he involved, but he refused to listen and stuck to the position
that since the Region was supervising the inspection, they had no obligation to even
recognize the union. I informed him that we would challenge this and asked if
OSR\ had been notified. He claimed not to know. I then informed him that I would
contact OSHA and report the fatality and the lack of cooperation by the Forest Serv-


Mr. Benegas then said to me the most chilling words I have ever heard. He said,
"I don't understand what the big deal is? It was only an Indian." I was at first
speechless then I bluntly told him that this matter was far from over.

I then contacted OSHA. It took a while to obtain the appropriate number and to
get through. When I did talk to OSHA I found out that the Forest Service had just
notified OSHA. Evidently my previous threat forced them to do what they should
have done the day before. r ,, r.

Aft«r that day I was informed by OSHA that a Mr. Marvin White of the torest
Service had refused to allow OSHA inspectors access to the si^t of the fatality, and
reftised OSHA access to records or witnesses.

OSHA inspectors were eventually allowed to inspect the fatality site, but not be-
fore evidence was removed and employees instructed not to talk with investigators.

The official OSHA documents and correspondence show that the Forest Service
failed to:

— inform employees of changes in the prescribed bum plan

— evacuate employees

— provide training

— provide personal protective equipment

— perform safety and sampling testing of hazardous exjx)sure

— provide a respiratory protection program

— implement medical surveillance programs for employees

— analyze and evaluate unhealthfiil and unsafe working conditions

— abate unsafe or unhealthful working conditions

— allow OSHA inspectors to enter work areas without delay

— leave evidence at the accident scene undisturbed

— inform employees about the agency's safety and health program

—record properly 175 of 240 injures in 1991 and 34 of 65 in 1992, or fmally

— develop and implement a hazardous communication standard.

The Forest Service has refused, to date, even to consider abating most of these
problems. In fact they continue to challenge OSHA's authority to inspect and cite
violations on federal work sites.

Mr. Chairman and members of the subcommittee, there was no need for the death
of Frankie Toledo. There is no need for this senseless bureaucratic behavior by fed-


eral managers and supervisors. Am I talking about bad people? No, I am not. These
are good decent people but they live and work in a fantasy world. They face no pen-
alties for their actions or failure to act. They face no forced compliance by other
agencies, such as OSHA, therefore their world is not real.

I have discussed these matters with numerous OSHA investigators over the years.
They all place OSHA inspections at federal agencies as a low priority because they
know their efTorts and time are wasted. They try to place higher priority on inspec-
tions within the private sector where their eflbrts are effective. O^IA inspectors are
frustrated and angry about the indifference and arbitrary actions of federal man-

We must educate federal managers and supervisors about safety and health. We
must inform male managers and supervisors that it is not a weakness to work safe-
ly. I have found through my work that female managers and supervisors feel less
threatened by safety and health prevention.

If we do not turn back this unreal attitude about safety and health, we will see
more senseless deaths like Frankie Toledo's.

I urge you to act swiftly to correct these inadequacies in the existing laws. En-
forcement and fines must be part of OSHA's arsenal in order to be effective in cor-
recting safety and health problems in the federal sector. AFGE would like to work
with you to develop language for the federal plan and will work tirelessly to make
the federal workplace a safe workplace for all.

Thank you again for allowing me the opportunity to address you today. I will be
happy to answer any questions that you may have.

Additional Testimony of W. Patrick O'Connor

The following answers are responses posed to me by the Honorable Howard M.
Metzenbaum concerning my testunony before the Subcommittee on Labor, Senate
Labor and Human Resources Committee on OSHA Reform, held on October 5, 1993.

1. In vour written testimony, you suggested that the Occupational Safety and
Health Administration could do a better iob than the U.S. Forest Service has done
in protecting firefighters' health and safety. Can you tell me what OSHA might
have done to protect the firefighters?

Answer: OSHA's principle task is to protect the American Workforce including
federal employees. We cannot expect employers to police themselves on health and
safety, this is the same as the "Fox guarding the Henhouse". OSHA has regulations

1 2 3 4 5 6 8 10 11 12 13 14 15 16 17

Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 8 of 17)