tions, there is no way of our being certain that the expenditure of substantial sums of money will guarantee compliance.

Suppliers' counsels are advising manufacturers' representatives and other salesmen not to give assurance in writing that their equipment complies with OSHA requirements. This will inevitably result in many thousands of small businessmen spending money they cannot afford only to learn later that they are still not in compliance.

What is needed here is some program whereby OSHA will directly or indirectly issue some form of certification stating that a given piece of equipment complies with the appropriate provisions of its regulations.

Two other primary sources of confusion have been caused by the action of OSHA. First, while they have used existing consensus standards as the basis for their regulations, they have changed them in so many basic respects that many thousands of business firms who have complied with these standards may find themselves no longer in compliance. This action has also caused many situations in which interpretation becomes difficult or even impossible.

Further, over a long period of time local safety and fire authorities have, under the mandates of State and municipal legislative bodies, reached workable accommodations.

In other words, if a given installation was not in precise compliance with the exact wording of NFPA 30 or similar requirements, and if in the judgment of the local enforcement authority it was adequate, then it was accepted.

OSHA's program of literal compliance has completely destroyed this and divested local enforcement officials of all discretion. You will find attached to my remarks an analysis of a number of sections of the OSHA regulations, as drafted by one of the leading petroleum fire experts in the country. I request permission that they appear in full in the record at the conclusion of my remarks.

Mr. HUNGATE. Without objection, it is so ordered.

Mr. BADE. One of the most important considerations in the entire question of employee safety from the point of view of small business is to provide a grandfather clause in the regulations so that slight variations in design, construction or location, which do not constitute hazards, do not render a facility unacceptable.

A proposed amendment to the OSHA regulations for this purpose is likewise attached to my remarks together with a companion proposed amendment for the OSHA Compliance Operations Manual. I likewise request permission that these appear in the record at the conclusion of my remarks.

Mr. HUNGATE. With no objection, that will be made part of the record.

Mr. BADE. Mr. Chairman, I would like to thank you and your colleagues for this opportunity to appear before you and to commend and encourage you to continue with your extremely important work in this field.

(The attachments referred to follow :)

FLAMMABLE LIQUIDS SECTION OF THE OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

The Occupational Safety and Health Act of 1970 was enacted with the declared Congressional purpose and policy "to assure so far as possible every working man and woman . . . safe and healthful working conditions, and to preserve our human resources."

Section 1910.1 of the Rules and Regulations reads in part: "The legislative purpose of this provision is to establish as rapidly as possible and without regard to the rule-making provisions of the Administrative Procedure Act, standards with which industries are generally familiar, and on whose adoption interested and affected persons have already had an opportunity to express their views. Such standards are either (1) National consensus standards on whose adoption affected persons have reached substantial agreement, or (2) Federal standards already established by Federal statutes or regulations."

Paragraph (g) in the Rules and Regulations, defines "National consensus standard" as follows: "National consensus standard means any standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary of Labor or by the Assistant Secretary of Labor that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption."

In spite of the intent of Congress, the office of Safety and Health did not adopt the NFPA standards to cover the storage and handling of flammable liquids. It is true that NFPA was used as a guideline and most of the wording in the OSHA Regulations are identical with NFPA; however, there are several variances and two major omissions which seriously alters the effect of the standards.

The OSHA regulations completely ignored and eliminated the NFPA sections on "Scope and Retroactivity.”

Without the NFPA section on "Scope" the OSHA regulations can be interpreted to apply to many situations for which NFPA was never intended.

It is inconceivable that a committee, no matter how well staffed, can write a set of regulations which would properly apply to every installation in the United States. This is the reason NFPA wrote into its "Scope" section the following:

"Paragraph 1030. In particular installations the provisions of this Code may be altered at the discretion of the authority having jurisdiction after consideration of the special features such as topographical conditions, barricades, walls, adequacy of building exits, nature of occupancies, proximity to buildings or adjoining property and character of construction of such buildings, capacity and construction of such proposed tanks and character of liquids to be stored, nature of process, degree of private fire protection to be provided and the adequacy of facilities of the fire department to cope with flammable or combustible liquid fires."

The deletion of this section by OSHA is comparable to setting up one set of medical treatments and applying it to every patient who enters a hospital regardless of the patient's illness or physical condition.

Probably the most serious omission in the OSHA regulations pertains to Section 1040 of NFPA. This section was completely deleted in the OSHA regulations; it provides as follows:

"Paragraph 1040. Existing plants, stores, equipments, buildings, structures and installations for the storage, handling, or use of flammable or combustible liquids which are not in strict compliance with the terms of this Code may be continued in use provided these do not constitute a distinct hazard to life or adjoining property. When the authority having jurisdiction deems that the continued use will constitute a distinct hazard to life or adjoining property, he shall notify the owner or operator and specify reason in writing."

Without this provision OSHA is not a consensus standard. In fact without that provision NFPA would not have been a consensus standard as written. Section 1910.5(d) OSHA clearly states:

"In the event a standard protects on its face a class of persons larger than employees, the standard shall be applicable under this part only to employees and their employment and places of employment."

Many of the sections of NFPA were written not for protection of the employees, but for the purpose of protecting property and to aid the fire department in the containment and control of a possible fire. It is in these sections where a grandfather clause is most important.

Specific examples.-Section 1910.106(b) OSHA concerning tanks lists many different specifications for the construction of tanks. This includes the thickness and type of metal to be used. All of these specifications have undergone changes over the years. Tanks which were built to code specifications 20 years ago may not meet the new specifications of NFPA or OSHA simply because the old specifications called for 3/16-inch steel, while the new specifications call for 1/4-inch steel. These tanks are serving their purpose well and can not be classed as a "distinct hazard;" therefore, NFPA says they may be continued in use. Without

the grandfather clause the OSHA regulation will require that thousands of tanks be replaced with no added protection to the employee.

Section 1910.106(b)(2) OSHA.—Contains various tables concerning the spacing between tanks and property lines and buildings. This section is specifically for the protection of property and to aid the fire department in containing a possible fire. It has nothing to do with the protection of employees. In fact, it is doubtful whether it would be possible to find one single incident over the past 20 years where an employee had been injured because of the spacing between tanks or between tanks and property lines, or even tanks and loading racks. Yet without the grandfather clause one company alone has estimated that it will cost them $28 million to bring their tanks into compliance with these spacing regulations. All of this with no additional protection to the employee. In fact, the moving of tanks or the destruction and reconstruction of tanks to comply with this useless provision would probably cause injuries from falls, fires and explosions, because it would require "hot work" on tanks containing flammable liquids. The NFPA section on "Diking" reads in part as follows:

"2171. 'Drainage, and Diked Areas:' The area surrounding a tank or a group of tanks shall be provided with drainage as in Paragraph 2172, or shall be diked as provided in Paragraph 2173, to prevent accidental discharge of liquid from endangering adjoining property or reaching waterways except that in particular installations these provisions may be waived or altered at the discretion of the authority having jurisdiction when the tanks under consideration do not constitute a hazard to adjoining property." Here again, the provision is clearly stated as being for the protection of "adjoining property or waterways."

No effort will be made in this memorandum to explain all of the ramifications but there are many conditions where dikes become a hindrance to the fire fighters and should not be employed. For example, one way of protecting storage tanks and other exposed property is to sweep spilled product away by means of water streams. When dikes are involved this is impossible. Each case must be separately evaluated. This is the reason that NFPA specifically provided in this section for "discretion of the authority having jurisdiction." OSHA deleted this discretion, as it has done in many other sections.

The section on "Foundation" under "Aboveground Tanks" is again written to aid the fire department in case of fire. Whether or not the steel in a foundation has a "two-hour fire protection has no effect on the employees' health or safety. In the midwest there are literally thousands of bulk plants with unprotected steel foundations. These tanks have been in use for 30-to-40 years without endangering the employees and should be permitted to continue in operation. It is believed that OSHA deleted the "Scope and Application" section (commonly called the grandfather clause) from the National Fire Protection Association Standard No. 30, because it was felt that the words "distinctly hazardous” might require a judgment decision to be made on each location. If this was the reason for deleting this very important section then it can be easily corrected by reinstating it along with two minor amendments and by adding some brief guidelines to the Compliance Operations Manual delineating what is, and what is not, to be "distinctly hazardous."

(See attached proposed amendment.)

Incidentally, the law defines an employer as . a person engaged in business affecting commerce." Some attorneys believe that this is broad enough to include farmers, if so, then without these amendments there will be a super colossal compliance, and administrative problems, because all farmers now use and store flammable liquids.

It might be well to point out that in the North Atlantic states most storage of flammable liquids is in the terminal-type tanks, sometimes having capacities of millions of gallons. This type of storage should be differentiated from the many thousands of small bulk plants throughout mid-America and the southern portion of the United States which will not be in compliance with the OSHA requirements unless this grandfather clause is reinstated. In fact, a large portion of these plants will be forced out of business because they simply cannot comply with spacing requirements, etc.

Proposed amendment to OSHA regulations to provide a "grandfather clause." "The regulations adopted in this part and the standard referenced as regulations in this subpart are not intended to preclude the continued use of facilities and equipment installed prior to the effective dates herein speci

fied provided such facilities and equipment do not constitute a distinct hazard to employees.

"While variations in design and construction features such as relative location of existing equipment, structures and components do not normally constitute distinct hazards to employees, some features may. Specific evaluation of such a facility may be required to determine whether or not a 'distinct hazard' exists. Good operational practices, proper maintenance, good housekeeping practices and items specifically referenced in these regulations as applying regardless of when a facility was built will normally be considered essential to avoiding 'distinct hazards' to employees."

"At any plant, station or establishment existing and devoted to flammable or combustible liquid use as of the effective date of these standards, existing nonconformity and continuance of which is allowed shall not prevent the installation of additional or replacement facilities which in and of themselves are in conformity with these standards."

PROPOSED AMENDMENT TO OSHA COMPLIANCE OPERATIONS MANUAL Section 1910.5 of the Standards containing two paragraphs which provide that certain physical equipment may be continued in use even though it may not be in strict compliance with the Standards if it was constructed and in use prior to the effective date of these Standards and if its continued use will not constitute a "Distinct Hazard."

A complete list of those items which might be classed as "Distinctly Hazardous" or "Not Distinctly Hazardous" would be impossible to make, but the following should be used as an incomplete guideline.

With respect to the locations or arrangements of buildings, tanks, platforms or docks or to spacing or clearances between these installations or between these installations and adjoining property lines shall not be deemed to be distinctly hazardous and may be allowed to continue.

With respect to vents or pressure relief devices on tanks, control valves on tanks or in piping systems, ventilation or sources of ignition shall be deemed distinctly hazardous and shall be corrected or eliminated provided, however, that vents or pressure relief devices on tanks prior to the effective date of this code and meeting the size requirement of NFPA Pamphlet #30 which was in effect at the time of installation may be allowed to continue.

As to the diking of tanks and the fire protection of steel supports, consideration should be given to the fact that these two requiremens are primarily for the purpose of protecting property and bodies of water and to aid the Fire Department in containing a possible fire. Therefore, if other good operational and housekeeping operations are being followed, the facilities may continue to operate without diking or the fire protection of steel supports Provided that at any time when there is a major maintenance program, the steel supports will then be made to comply.

Mr. HUNGATE. Thank you for an excellent statement. We want to move right along. Our ranking minority member, Mr. Conte, is due at a Legion convention tonight and he is stretching things to continue to give us devoted attendance on the committee.

Mr. Bergland?

Mr. BERGLAND. Does Mr. Potvin have a statement?

Mr. POTVIN. I am simply here as counsel.

Mr. BERGLAND. Mr. Barbe, are you with the group?

Mr. BARBE. After the questions, I thought I would give about 5

minutes.

Mr. BERGLAND. At this point I have no questions.

Mr. POTVIN. Mr. Chairman, I would like to observe that literal compliance by Mr. Bade of the OSHA regulations would necessitate his moving his entire plant and building a new one and it would cost not less than $40,000. As a somewhat typical small jobber, I think that gives you a grasp of the order of magnitude we are talking about here.

Mr. HAHN. Mr. Chairman, I might say one thing in connection with the attachments you find on the statement in connection with diking, one of our big problems.

Really, a lot of times the way they fight these fires in these bulk plants is to wash the material away. It might actually make it much more dangerous to the employee to have the dike than it would not to have the dike.

Mr. HUNGATE. It is not necessarily increasing safety.

Mr. HAHN. It will, in fact, reduce safety in some cases, especially in the case of fire.

Mr. HUNGATE. Thank you.

Without objection, Mr. Barde's statement will be made a part of the record at this point.

If you will, hit the highlights.

Mr. BARBE. Mr. Chairman and members of the select committee, I would like to thank you for the opportunity to testify.

Basically, what I do is I head up, as vice president of the loss control division, technical services and training of policyholders, of which we have around 6,000.

We work with small businesses. We are a small insurance company. I would just like to give you summarily my observations.

The law includes all small business people, but it does not include the Federal Government. When we make these points that the Department of Labor, the Post Office Department, the Federal buildings, and all these buildings do not comply with the Federal laws, the small business people react very strongly in that they have a police state telling them what to do but they don't even comply with the laws themselves.

In the interest of safety, I think the Federal Government should set an example and get all their buildings and their house in order initially and set an example for the United States.

I think if you did do this, you would shut down almost every Federal building, every governmentally funded work institutions. and there would be complete chaos in the Federal Government. This is one of the problems.

I think further as you get into the law, you will find that for the most art the administration of the law that was vested in the Department of Labor should be removed. We should establish a national occupational health and safety commission in a bureau.

The Federal Department of Labor does not have trained people. They do not have educated people. They have not hired people who have work experience in safety, loss control, industrial hygiene, anv of the applied sciences. They don't have these people on their staff. Over 800 engineers, I have been told, have applied for these positions and because of political or nonunion support they were denied positions.

There is a struggle existing between the unions and management. The unions are using this to blackmail people, management and vice

versa.

The law was never intended to do this. We need legislation. We need amendments to the bill that would say if persons use this law for their own end, that is a violation of the law so we stop this black