Finally, OSHA chief nominee Michaels answers questions about ergo and his standards priorities (10/23)
Assistant Secretary of Labor OSHA nominee Dr. David Michaels has kept a low profile since his nomination in July. The follow exchange of written questions (from Senator Johnny Isakson R-Georgia) and answers from Dr. Michaels, dated October 9, 2009, give you the clearest sense yet of Dr. Michaels’ positions on the hottest OSHA issues of the day.
What are your three biggest regulatory priorities?
There are many regulatory changes needed at OSHA. Three of the most important ones are:
What are your views on OSHA regulation of combustible dust?
I support the CSB’s recommendation and will make promulgation of a combustible dust standard one of my top priorities if confirmed.
Will you commit to working with me on the promulgation of regulations modeled upon the existing National Fire Protection Association guidelines? Do you agree with me that OSHA regulation in this area should be informed by the findings of the two Imperial Sugar investigations, on the best available science, the experience of stakeholders, and the notice-and-comment process?
Yes to all parts of this question.
In past testimony, you indicated your support of the expanded use of the general duty clause in all situations where a hazard is present. How would you seek to implement this belief? Could this open the door to implementing ergonomics standards as well as other standards without going through the current standard setting process?
According to its Field Operation Manual, OSHA applies the general duty clause only in situations where there is no standard that applies to the particular hazard, and in situations where a recognized hazard is created in whole or in part by conditions not covered by a standard. OSHA could not use the general duty clause to implement ergonomic standards or other standards but can and currently does use the general duty clause in those situations described in the Field Operations Manual.
As a result of the Congressional Review Act resolution of disapproval of the Clinton Administration’s ergonomics standard, OSHA is prohibited from issuing an ergonomics standard that is “substantially the same” as the rescinded rule. Do you believe that an ergonomics standard that focused just on one industry would be substantially the same as the rescinded rule? What about a standard that did not include work restriction protection or an incident trigger?
The determination of “substantially the same” is a legal question, and I would defer to the opinion of the Solicitor of Labor as to whether any proposed new standard, should one be proposed, is “substantially the same” as the rescinded rule.
There are concerns about your support for the issuance of a Comprehensive Workplace Safety and Health Program Standard. How does the Professor think that a standard program could meet the needs of so many different industries that would have to adopt the standard? Would the creation of such a standard assist in the attempt to expand the use of the general duty clause?
Two important tools used by employers in abating hazards are their expertise (and that of their personnel) and common sense. These exist across all industries. OSHA should not attempt to issue a standard for prescribing employer behavior for every potential hazard – employers should apply their expertise and common sense. A program standard would encourage employers to do that, without taking a one-size-fits-all approach to hazard abatement.
With regard to the standard setting process, Professor Michaels had indicated he views the process as difficult and resource intensive. In addition, that he considers reviews by SBA, OMB, and economic analyses as barriers in the process. Why don’t you consider such steps as an asset in developing a reasonable rule that can be successful in real life applications?
I believe that reviews by SBA and OMB, as well as economic and technological analyses, add value to the standard setting process, and I consider them an asset in the standards promulgation. However, the challenge OSHA faces is how to obtain the very important advice and information that come through these reviews without taking so long as to paralyze the standard setting process. The standard setting processes for silica and beryllium have been underway for a decade or more. I believe this is far too long. If confirmed as Assistant Secretary I would work to have these reviews done as efficiently as possible.
You have written extensively about the need for employers to implement Injury and Illness Prevention Programs. How does your view of such a program differ from OSHA’s Safety and Health Program draft rule developed in the mid-1990s under the administration of President Clinton? Will you add an Injury and Illness Prevention Program rule to OSHA’s regulatory agenda?
I am not familiar with OSHA’s Safety and Health Program draft rule developed in the mid-1990s. If confirmed, I plan to consider promulgation of safety and health program standard, and if I do so, it will be added to OSHA’s regulatory agenda.
This Administration has asked and been granted the funding for 150 new OSHA inspectors. As you know, MSHA Inspectors must have five years experience in the field and then attend MSHA college for two years. OSHA Inspectors, on the other hand, do not have to have experience in the field or required training. Do you believe that OSHA inspectors currently are qualified to be in the field? Please articulate your plans to better train OSHA inspectors in the very near future.
I do not know whether current OSHA inspectors are qualified to be in the field, but I strongly believe that inspectors must be well-qualified and need to receive adequate training. I am not familiar with OSHA’s current training programs and facilities; if confirmed, I look forward to working closely with career staff in ensuring that adequate training is offered, especially to new inspectors.
What role do you see OSHA outreach such as VPP, alliances and partnerships playing in this Administration's OSHA?
Both consultation and enforcement are important OSHA functions, vital to the mission of the agency. If confirmed, I would continue to support OSHA’s successful programs in both of these areas.
What are your three biggest regulatory priorities?
There are many regulatory changes needed at OSHA. Three of the most important ones are:
- Completing rulemaking on some of the proceedings that are currently underway, including silica, beryllium, cranes and derricks, and GHS.
- Promulgating a combustible dust standard.
- Initiating rulemaking for an occupational safety and health program standard.
What are your views on OSHA regulation of combustible dust?
I support the CSB’s recommendation and will make promulgation of a combustible dust standard one of my top priorities if confirmed.
Will you commit to working with me on the promulgation of regulations modeled upon the existing National Fire Protection Association guidelines? Do you agree with me that OSHA regulation in this area should be informed by the findings of the two Imperial Sugar investigations, on the best available science, the experience of stakeholders, and the notice-and-comment process?
Yes to all parts of this question.
In past testimony, you indicated your support of the expanded use of the general duty clause in all situations where a hazard is present. How would you seek to implement this belief? Could this open the door to implementing ergonomics standards as well as other standards without going through the current standard setting process?
According to its Field Operation Manual, OSHA applies the general duty clause only in situations where there is no standard that applies to the particular hazard, and in situations where a recognized hazard is created in whole or in part by conditions not covered by a standard. OSHA could not use the general duty clause to implement ergonomic standards or other standards but can and currently does use the general duty clause in those situations described in the Field Operations Manual.
As a result of the Congressional Review Act resolution of disapproval of the Clinton Administration’s ergonomics standard, OSHA is prohibited from issuing an ergonomics standard that is “substantially the same” as the rescinded rule. Do you believe that an ergonomics standard that focused just on one industry would be substantially the same as the rescinded rule? What about a standard that did not include work restriction protection or an incident trigger?
The determination of “substantially the same” is a legal question, and I would defer to the opinion of the Solicitor of Labor as to whether any proposed new standard, should one be proposed, is “substantially the same” as the rescinded rule.
There are concerns about your support for the issuance of a Comprehensive Workplace Safety and Health Program Standard. How does the Professor think that a standard program could meet the needs of so many different industries that would have to adopt the standard? Would the creation of such a standard assist in the attempt to expand the use of the general duty clause?
Two important tools used by employers in abating hazards are their expertise (and that of their personnel) and common sense. These exist across all industries. OSHA should not attempt to issue a standard for prescribing employer behavior for every potential hazard – employers should apply their expertise and common sense. A program standard would encourage employers to do that, without taking a one-size-fits-all approach to hazard abatement.
With regard to the standard setting process, Professor Michaels had indicated he views the process as difficult and resource intensive. In addition, that he considers reviews by SBA, OMB, and economic analyses as barriers in the process. Why don’t you consider such steps as an asset in developing a reasonable rule that can be successful in real life applications?
I believe that reviews by SBA and OMB, as well as economic and technological analyses, add value to the standard setting process, and I consider them an asset in the standards promulgation. However, the challenge OSHA faces is how to obtain the very important advice and information that come through these reviews without taking so long as to paralyze the standard setting process. The standard setting processes for silica and beryllium have been underway for a decade or more. I believe this is far too long. If confirmed as Assistant Secretary I would work to have these reviews done as efficiently as possible.
You have written extensively about the need for employers to implement Injury and Illness Prevention Programs. How does your view of such a program differ from OSHA’s Safety and Health Program draft rule developed in the mid-1990s under the administration of President Clinton? Will you add an Injury and Illness Prevention Program rule to OSHA’s regulatory agenda?
I am not familiar with OSHA’s Safety and Health Program draft rule developed in the mid-1990s. If confirmed, I plan to consider promulgation of safety and health program standard, and if I do so, it will be added to OSHA’s regulatory agenda.
This Administration has asked and been granted the funding for 150 new OSHA inspectors. As you know, MSHA Inspectors must have five years experience in the field and then attend MSHA college for two years. OSHA Inspectors, on the other hand, do not have to have experience in the field or required training. Do you believe that OSHA inspectors currently are qualified to be in the field? Please articulate your plans to better train OSHA inspectors in the very near future.
I do not know whether current OSHA inspectors are qualified to be in the field, but I strongly believe that inspectors must be well-qualified and need to receive adequate training. I am not familiar with OSHA’s current training programs and facilities; if confirmed, I look forward to working closely with career staff in ensuring that adequate training is offered, especially to new inspectors.
What role do you see OSHA outreach such as VPP, alliances and partnerships playing in this Administration's OSHA?
Both consultation and enforcement are important OSHA functions, vital to the mission of the agency. If confirmed, I would continue to support OSHA’s successful programs in both of these areas.
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