Page images
PDF
EPUB

One contractor told me that his business is primarily in sewer construction and that he and his associates are faced with very rigid regulations, while municipalities and counties are not covered by the law although 80 percent of the deaths by cave-ins and other cases in this type of work are on operations conducted by Government units or agencies.

One man reported being cited because one of his employees was operating a pneumatic hammer without eyeglasses. The employer provided the eyeglasses and instructed the employee how to use them. The employee did not use them, and the employer was cited and fined.

Another case was reported to me where an employer was cited and fined because of a defective tool when the tool was owned by the employee and was not being used, but was in his toolbox.

Another citizen reported that he had a fire on the job and his men exhausted the fire extinguisher in putting it out. Within an hour an inspector came along, cited the employer and fined him $100 because he did not have the fire extinguisher loaded and in working order. This particular site was 25 miles from the home office.

Still another citizen reported that at one place in the regulations it states that certain inspections have to be made by "a competent person." At another place in the regulations, it uses the term "a competent engineer." In this particular case a competent person had made an inspection, but the area director ruled that it should have been a competent engineer.

The treatment that the Labor Department has given the citizens of the country in respect to this law is a humiliation to everyone who is interested in good government.

One Nebraskan was fined $500 because his fire extinguisher was not a 5-pound extinguisher but a 3-pound extinguisher, and right next to his machine there was a 2-inch firehose, charged and in use, which had 100 times the capability of the fire extinguisher.

Are these bureaucrats interested in preventing fires or are they looking for technicalities with which they can harass people?

One Nebraskan who appeared before me and told of his problems said, "As a small businessman I feel that unless something is done and done quite quickly, small business everywhere is going to be out of business."

Another Nebraskan, referring to the voluminous regulations, said:

I can't read them and I don't understand them, and I need help. I can't afford to go out here and hire a safety director for anywhere from ten to twenty thousand dollars a year.

Another Nebraskan said:

You would think you would be able to call up and get some information, but this is just like asking for a fine.

An individual in construction work advises me as follows:

We also wish to note that besides the fact that there are relatively massive regulations directly applicable to construction work, there are many other regulations incorporated by mere reference. For instance, there are many references to ANSI (American National Standards Institute) contained in the construction regulations. Also referred to by the construction regulations and made part of the construction regulations are certain portions of the National Electrical Code and National Electrical Safety Code and Fire Protection Codes. Also referenced

80-497-72-7

are American National Standards Institute, American Conference of Governmental Industrial Hygienists, Atomic Energy Commission, Society of Automotive Engineers, National Electrical Code, American Society of Testing Materials, NFPA, CFR, National Electrical Safety Code, National Bureau of Standards, Federal Aviation Agency, American Society of Mechanical Engineers, Power Crane and Shovel Associations Standard, U.S. Army Corps of Engineers, Bureau of Reclamation, American Society of Agricultural Engineers.

An individual in a position to know told me that if a taxpayer were to purchase the entire American National Standards Institute publications, it would cost between $4,000 and $6,000.

It is quite apparent that the regulations promulgated by the Labor Department are written by someone not familiar with the subject matter or industry affected. I would like to quote from another letter I received:

In spite of the fact that the 2 by 4 railing specified by OSHA will not meet OSHA's other requirement that "the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection." OSHA makes a requirement that for steel pipe railings both the top and intermediate rail must be of at least 11⁄2 inches nominal diameter with the posts spaced not more than eight feet on centers. This is a gross over-requirement. Even a one-inch nominal diameter top or intermediate rail would be better than the two-by-four top rail or the one-by-six intermediate rail, and a 14-inch nominal diameter pipe would be far superior to the two-by-four construction. The same is true of the structural steel railings when compared with the two-by-four railings.

Our people back home are faced with an unbearable and undeserved situation. There is a desperate need for immediate action, and I would suggest the following:

1. The Labor Department should be called to account for its bad performance in administering this law. The Department should be required to place competent, practical individuals in all places of authority and the regulations should be consistent and understandable.

2. The Congress should insist that the Labor Department cooperate in promoting programs in the interest of safety and health and stop treating as criminals individuals who are providing jobs for others.

3. The law should be completely overhauled along the lines of the amendments which I have introduced, and for which I now have 11 cosponsors. The Senate version of these amendments is S. 3262, and I attach a copy.

4. In the interim, while the law is being completely overhauled, the Congress should forthwith pass an amendment which would provide a small-business exemption to this law and which would also provide that no fine be imposed on employers who bring their places into compliance within a certain period of time after an inspection.

The administration of the law is an outrage. The fact that over in the Senate the Dominick substitute, which was a reasonable bill and more like the House bill, was tabled by a vote of 41 to 39, does not give much comfort to the people who have to live under this law. The Congress as a whole must take responsibility for the act, and I hope some amendments will be adopted soon.

I apologize for running over my time.

Mr. HUNGATE. I think you stayed within it, Senator, and thank you for a very comprehensive and well-documented and prepared state

ment.

(S. 3262 and attachment follows:)

[S. 3262, 92d Cong., second sess.]

A BILL To amend the Occupational Safety and Health Act of 1970, 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 Amendments of 1972".

SEC. 2. (a) Section 3(5) of the Occupational Safety and Health Act of 1970 is amended to read as follows:

"(5) The term 'employer' means a person engaged in a business affecting commerce who has employees but does not include the United States, any State or political subdivision of a State, any nonagricultural employer who employed no more than twenty-five employees at any time during the preceding calendar year, or a small farmer."

(b) Section 3 of such Act is amended by adding at the end thereof the following new paragraph:

"(15) The term 'small farmer' means a person who owns or operates a farm who, it can reasonably be predicted on the basis of criteria prescribed by the Secretary, will not employ during the next twelve-month period more than twenty-five man-years of agricultural labor for which compensation is paid." SEC. 3. Section 5 of the Occupational Safety and Health Act of 1970 is amended by adding at the end thereof the following new subsection:

"(c) Notwithstanding any provision of the National Labor Relations Act, an employer may appoint, establish, and maintain a safety committee for the purposes of this Act without violating any provision of section 8 of the National Labor Relations Act."

SEC. 4. Section 6 of the Occupational Safety and Health Act of 1970 is amended by adding at the end thereof the following new subsections:

"(a) The Secretary shall evaluate as soon as practicable after the date of enactment of the Occupational Safety and Health Act Amendments of 1972 existing standards established pursuant to subsection (a) or (b) of this section in order to determine the applicability of each such standard to each class of business concern within each industry or form of business. After such evaluation, the Secretary shall determine as a part of each standard, the class or classes of employers to which that standard is applicable and any class of employers to which that standard is applicable and any class of employers to be excluded from the application of that standard, after a determination that the inclusion of any such class would be unreasonable. Such evaluation and determination shall be a part of the establishment of all standards after the effective date of the Occupational Safety and Health Act Amendments of 1972.

"(i) The Secretary shall prescribe, as soon as practicable after the date of enactment of the Occupational Safety and Health Act Amendments of 1972, as part of each existing standard adopted under the Occupational Safety and Health Act of 1970, the estimated average and maximum cost per unit to the average employer who is subject to that standard for compliance with the conditions, practices, means, methods, operation, or process used or proposed to be used by that employer under that standard and must find within such period that it is, in fact, possible for such employers to meet such standard including, but not limited to, availability of required devices, and possibility of performance of required procedures. If the Secretary cannot find that it is possible to comply, he shall rescind the standard, or fail to establish it in the event of a standard proposed to be established. The requirements of this subsection shall be a part of the establishment of all standards after the effective date of the Occupational Safety and Health Act Amendments of 1972.

“(j) Failure of an employer or employee to comply with an occupational safety and health standard which has been adopted or promulgated without compliance with the procedures of chapter 5, title 5, United States Code, shall not in itself be used in any civil action or proceeding as evidence of negligence, or wrongdoing, on the part of said employer or employee, or give rise to a presumption, or inference thereof. This provision shall not, however, be interpreted to imply the contrary is provided by this Act even though there was compliance with said chapter 5, title 5, United States Code, with respect to a standard."

(1) Section 6(j) shall not be applicable in actions brought by, or against, the Secretary pertaining to the enforcement of this Act.

SEC. 5. Section 8(c) (2) of the Occupational Safety and Health Act of 1970 is amended by adding the following at the end thereof:

"In furtherance of the effectiveness of this provision and this Act, the regulations of the Secretary may require, or otherwise provide for, appropriate physical examinations of employees upon the inception of their employment in a particular activity, or the effective date of the regulation, as to those who are employed in such activities on that date. In prescribing such regulations, the Secretary shall take into account the type of activity, or industry, the hazardous nature of the particular employment and the benefits in connection with the purposes of the Act which may accrue by requiring such examinations. Records of examinations made pursuant to this provision shall be maintained by the employer and be available to the Secretary in performing his duties under this Act, pursuant to the regulations of the Secretary."

SEC. 6. The third sentence of section 9 of the Occupational Safety and Health Act of 1970 is amended by inserting before the period a comma and the following: "and the action that is necessary to be taken by the employer for such abatement of the violation".

SEC. 7. The Occupational Safety and Health Act of 1970 is amended by adding after section 17 thereof the following new headings and sections as sections 18 and 19 and by the renumbering of subsequent sections:

"AFFIRMATIVE DEFENSES

"SEC. 18. (a) It shall be an affirmative defense to any proceeding under this Act that

"(1) the employer furnished adequate notice and exerted all reasonable efforts, pursuant to such regulations as the Secretary may prescribe, to obtain the compliance of his employees and the violation of the Act was attributable to such employees and the employer could not otherwise have reasonably prevented the violation;

"(2) the employer did not receive at least thirty days prior actual notice of a standard not adopted pursuant to title 5, chapter 5, United States Code, when the violation charged relates to such a standard; and

"(3) the standard which is the subject of the violation charged, would not have effectively constituted an improvement of occupational safety and health in the circumstances under which the charge is brought.

"COMPLIANCE AGREEMENT

"SEC. 19. (a) Section 10 of the Occupational Safety and Health Act of 1972 is amended by adding at the end thereof the following new subsection :

"(d) At any time the Secretary determines the purposes of this Act will be best served by so doing he shall have the authority to enter into an agreement with an employer believed to be in violation of an occupational health and safety standard whereby enforcement and penalty provisions are waived or deferred upon condition the said employer will voluntarily comply with said standard upon such terms and conditions as the Secretary determines appropriate in the circumstances. Failure of an employer to abide by such an agreement, however, may be taken into account in resulting enforcement and penalty procedures.'

[ocr errors]

SEC. 8. (a) The heading of section 28 of the Occupational Safety and Health Act of 1970 is amended to read as follows: "ASSISTANCE TO SMALL BUSINESSES". (b) Section 28 of such Act is amended by adding at the end thereof the following new subsections:

"(e) (1) Whenever it appears to the Secretary that it is necessary to assist employers with less than one hundred employees during the preceding calendar year to comply with the applicable standards promulgated pursuant to section 6 of this Act or standards adopted by a State pursuant to section 20 of this Act, the Secretary shall provide technical advice, assistance, and consultation, either directly or by way of a grant, to such employers to assist them in so complying. "(2) The assistance provided by this subsection shall not include the actual cost of devices or procedures required by this Act.

"(f) Upon the application of an affected employer, the Secretary shall make a grant to him for the cost incurred by him in complying with a standard adopted or promulgated without compliance with title 5, chapter 5. United States Code, if that standard was replaced by the Secretary with a standard which could have reasonably been adopted at the time the replaced standard

was adopted or promulgated and the said employer was required to comply with the later standard. The said grant to the employer shall be equal to the costs incurred by said employer which he would not have incurred if the later standard had been adopted or promulgated initially. For the purpose of making such grants, the Secretary is authorized to adopt schedules based upon average cost of data."

SEC. 9. Section 16 of such Act is amended by adding at the end thereof the following new subsection:

"(b) Notwithstanding any other provision of this Act, no standard promulgated or adopted hereunder prior to the enactment of this subsection shall be applicable until one year after the enactment of this subsection to any employer who in the calendar year preceding enactment of this subsection had fewer than one hundred employees. This subsection shall not be applicable to new businesses established after the date of its enactment, or to any business having more than one hundred employees in the calendar year prior to its enactment. The Secretary shall adopt the necessary regulations to effect the provisions of this subsection." SEC. 10. The amendments made by this Act shall take effect on the first day of the month beginning sixty days after the date of enactment of this Act.

BY MR. CURTIS (FOR HIMSELF, MR. HRUSKA, MR. BAKER, MR. DOLE, MR. HANSEN, MR. PEARSON, AND MR. TOWER):

S. 3262. A bill to amend the Occupationa Safety and Health Act of 1970, and for other purposes. Referred to the Committee on Labor and Public Welfare.

TOWARD A FAIRER OCCUPATIONAL SAFETY AND HEALTH LAW

Mr. CURTIS. Mr. President, on the 29th day of December, 1970, a little over 1 year ago, an act of Congress pertaining to the health and safety of employees in their occupations became law.

This law. Public Law 91-596, known as the Occupational Safety and Health Act of 1970, was ordered reported by the conferees of the House and Senate on December 16, 1970, and thus received final congressional action in the waning days of the 91st Congress.

At the time that the Occupational Safety and Health Act was considered in the Senate, a better proposal was under consideration. This proposal had the support of the administration. It was introduced by Senator Dominick of Colorado in the nature of a substitute for the bill that was passed.

Had it been enacted into law, the Dominick substitute would have done much more to advance the cause of industrial health and safety. It was a bill that our people could live with. It placed more emphasis on cooperation and education, which are essentials if any program is to work.

The Dominick substitute, if it had been enacted, would have avoided much of the trouble that we are now experiencing with the present law. This amendment, however, was defeated by a rather close vote. On a vote of 41 to 39, the motion to table the Dominick substitute was carried. I supported the Dominick amendment and I regret that it did not prevail.

Now, a year later, we are seeing the results of the law in action, and it is becoming abundantly clear that there are major defects in the law.

Last December 14 I said, in a statement here in the Senate, that I intended to propose remedial action to cure some of the defects which have been called to my attention. I know other Senators have also received mail regarding the inequities of the act. I have been investigating the problems and their causes, and have found that, contrary to the belief of some, the problems are not basically due to ill-advised administrative actions by the Secretary of Labor in carrying out the law. The problems are rooted in the basic law which Congress passed. It is, therefore, not a matter which the Secretary of Labor or the President can remedy. Rather, the problems to which I refer are the responsibility of Congress.

Today I am introducing a bill that I believe includes the amendments necessary for a responsible reform of the 1970 act while reinforcing the basic purpose for which it was enacted.

There is no doubt in my mind that these amendments will hasten the day when empoyers will have taken all necessary steps to provide for the health and safety of their employees as they carry out their jobs, because the act would

« PreviousContinue »