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ACCSH Transcripts: May 4, 2000
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U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
(ACCSH)
Rooms N-3437 B, C and D
Francis Perkins Building
200 Constitution Avenue, N.W.
Washington, D.C.
Thursday, May 4, 2000
MOFFITT REPORTING ASSOCIATES
(301) 390-5150
P R E S E N T
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Advisory Council Members Present:
Stewart Burkhammer
Bechtel
Michael Buchet
National Safety Council
Stephen J. Cloutier
Jones Construction Company
Charlotte, North Carolina
Stephen D. Cooper
Ironworkers
Felipe Devora
Fred's Construction Company, Safety Director
Houston, Texas
Larry Edington
International Union of Operating Engineers
Robert Masterson
The Ryan Group, Home Building
Harry Payne
Commissioner of Labor, North Carolina
William Rhoten
United Association of Plumbers and Pipefitters
Russell B. Swanson
Designated Federal Official
Marie Haring Sweeney
National Institutes of Occupational
Safety and Health
Jane F. Williams
Agency Safety Resources Consultant
AGENDA ITEM:
Call to Order:
Introductions
Minutes for February 2000 ACCSH Meeting
Stewart Buckhammer
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PAGE:
7 |
OSHA Form 170
Stephen D. Cooper |
15 |
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Jane F. Williams |
18 |
Data Collection
Michael Buchet |
19 |
Musculoskeletal Disorders
Marie Haring Sweeney |
25 |
Hexavalent Chromium
William Rhoten
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52 |
Carolina Star Programs
John R. Bogner |
58 |
Subpart N - Cranes
Larry Edington
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102 |
Process Safety Management
Stewart Buckhammer
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106 |
Safety and Health Program/Training
Stephen J. Cloutier
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107 |
| William Rhoten |
112 |
Fall Protection
Felipe Devora
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135 |
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Robert Masterson |
139 |
Noise in Construction
Marie Haring Sweeney
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142 |
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Felipe Devora |
144 |
The Rule Making Process
George Henschel
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147 |
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Claudia Thurber |
150 |
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Marthe Kent |
196 |
Workers' Home Page, OSHA's Internet Site
Susan Fleming |
202 |
Public Comments:
Charles Maresca
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219 |
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James H. Suttle
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223 |
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P R O C E E D I N G S
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(9:02 a.m.)
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Call to Order
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CHAIRPERSON BURKHAMMER: Good morning.
Welcome to the ACCSH meeting. We'd like to go
around and introduce the members of ACCSH that are
present. Bill, will you start, please?
MR. RHOTEN: My name is Bill Rhoten, I'm
with the United Association of Plumbers &
Pipefitters.
MS. WILLIAMS: Jane Williams, Agency
Safety Resources Consultant.
MR. BUCHET: Michael Buchet, National
Safety Council.
MS. SWEENEY: Marie Haring Sweeney,
NIOSH.
CHAIRPERSON BURKHAMMER: Stew
Burkhammer, Bechtel.
MR. SWANSON: Bruce Swanson, designated
Federal Official.
MR. CLOUTIER: Steve Cloutier, Jones
Construction Company out of Charlotte, North
Carolina.
MR. MASTERSON: Bob Masterson, The Ryan
Group, Home Building.
MR. COOPER: Steve Cooper, Ironworkers.
MR. PAYNE: Harry Payne, Commissioner of
Labor, North Carolina.
MR. EDINGTON: Larry Edington,
International Union of Operating Engineers.
MR. DEVORA: Felipe Devora, Fred's
Construction Company, Safety Director, Houston,
Texas.
CHAIRPERSON BURKHAMMER: Welcome, group.
Now we'd like to go through the audience.
Charlie, would you start, please?
MR. MARESCA: Charley Maresca,
Associated Builders & Contractors.
MR. SUTTLE: I'm Jim Suttle, Executive
Vice President, HDR Engineering & Architecture in
Omaha, Nebraska. Thanks for having me as your
guest.
CHAIRPERSON BURKHAMMER: You're welcome.
MR. BRIGHTUP: Craig Brightup with the
National Roofing Contractors Association.
MR. HERZOG: John Herzog, Air
Conditioning Contractors of America.
MS. ABRAMS: Adele Abrams, Patton Boggs,
Washington representative of the American Society
of Safety Engineers.
MS. FOWLER: Shantelle Fowler, BNA.
MR. FINN: Pat Finn, Department of
Energy.
MS. ARIOTO: Liz Arioto, L.E. Wentz
Company.
MR. STROTHER: James Strother, Sheet
Metal & Air Conditioning Contractors.
MS. TRAHAN: Chris Trahan, Building &
Construction Trades Department.
MR. BOGEN: John Bogen, North Carolina
Department of Labor, Star Program Manager.
MR. BROWN: Tony Brown, Kenny
Construction Company.
MR. POPE: Tom Pope with OSHA.
MR. CUMMINGS: Hal Cummings, DTI
Associates.
CHAIRPERSON BURKHAMMER: Very good.
Thank you very much. Before we start, Marie,
would you lead us in a moment, please?
MS. SWEENEY: Two weeks ago three
construction workers were killed on a bridge site
in Peoria, Illinois. There are also others that
were killed as well and we'd like to just have a
moment of silence for those workers who were
killed in the last couple weeks.
CHAIRPERSON BURKHAMMER: Let's observe a
moment of silence for these workers.
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(Pause.)
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CHAIRPERSON BURKHAMMER: Thank you.
We'd like to ask Michael -- I guess I won't ask
Michael, he disappeared. If you'll open your
packets and get out the minutes from the last
advisory committee meeting, which was held at
Chicago in conjunction with the Chicago Safety
Counsel Construction Conference. Mr. Rhoten?
MR. RHOTEN: Let me find my notes here.
Or without them, at that last meeting, I think
those minutes reflect that there was a motion made
as that I act as a liaison to the OSHA Training
Institute and that's an error. There was actually
a suggestion made that wasn't acted on and I think
that if we need a liaison to the OSHA Training
Institute, it probably should fall to the standing
Training Committee that we have now, if that's
what the committee would like to do.
Also in the minutes it reflected that
there was a motion made that I chair a committee
that would work with the OSHA Training Institute
to try to put together a system that would give
more credibility to the ten-hour OSHA card system.
That is, they would be numbered so that people
could verify that they had taken the courses.
Joe Durst with the carpenters is
interested in that and I think that also should be
with the standing Training Committee for
examination and action.
CHAIRPERSON BURKHAMMER: If the
Committee would turn to Page 4 of the minutes,
what Bill is commenting on is highlighted in about
the middle of the page there, where it says "A new
workgroup was formed to examine..." Bill and Steve
Cloutier have both talked to me about merging that
and dropping that new workgroup and merging it
into the existing Safety & Health Training Program
Workgroup. If there's no objection from the
Committee?
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(No response.)
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CHAIRPERSON BURKHAMMER: Seeing none,
agreed. Bill will do that and we'll eliminate
this new workgroup and merge it into the existing
workgroup that you and Steve Cloutier -- any other
comments on the minutes from Chicago, Mr. Cooper?
MR. COOPER: There were a group of
Advisory Committee members who went from this
meeting, the middle of this meeting over to the
OSHA Institute and spent approximately three or
four hours with the OSHA Institute concerning the
manner in which training was being handled by the
Institute.
I think it's very important that the
minutes reflect that this Committee participated
with the OSHA Institute as it relates to training
and their budget.
I had mentioned that to the Directorate,
someone within the Directorate, that that should
be included in the minutes and I do not see it in
the minutes.
MR. SWANSON: Does the Committee wish
for that to happen? Is that's the consensus, we
will cause that to happen.
CHAIRPERSON BURKHAMMER: That's what the
consensus seems to be. If we could add that maybe
between the comments that are highlighted on Page
4 and the testimony section, put a paragraph in
there about the visit to the Institute. Thank
you, Steve.
MR. SWANSON: Thank you.
CHAIRPERSON BURKHAMMER: Any other
comments on the minutes, Jane?
MS. WILLIAMS: Mr. Chairman, on Page 3
we talk about a motion to break workgroups into
two-hour sessions instead of four. That may not
be able to happen at all times and it's my
understanding that we would consider two-hour
meetings, but there certainly will be
opportunities where we have two, four or eight, so
I would not want this motion to infer that the
workgroup terrace would not have any flexibility.
If that's understood, we would not need
to change this.
CHAIRPERSON BURKHAMMER: Well, not
having been there, Michael, was this a motion that
was made, seconded and approved?
MR. BUCHET: Yes, it was, though I don't
know that we were making the motion with the
intent of making every workgroup meeting from then
on two hours. My sense was we were talking about
coming back here to D.C. and trying to catch up.
Maybe the motion needs to stand as it's
made because that was the discussion and the
motion and we all voted on it and then we'd have
to address the issue of scheduling all over again
because some workgroups simply can't accomplish
what they need to accomplish in a two-hour time
slot and it may be that we have to find some other
way.
We have people -- I wouldn't say "over-assigned," that would imply that the -- let's say
we're stretched pretty thin and it's difficult to
get everything done in two days without either
working straight through the day with two hours
and then taking the other day for your four-hour
or six-hour.
MS. WILLIAMS: Mr. Chairman, I think we
can accomplish it by just stating after -- instead
of four hours, "whenever possible." That was the
intent of the motion as we had understood it and I
think if the minutes could just reflect "whenever
possible," which is what Michael's understanding
is, that we would in fact be in agreement with the
guidelines.
MR. BUCHET: Mr. Chairman --
CHAIRPERSON BURKHAMMER: I think to be
clean on this, since it is stated and you remember
it as a motion and seconded and approved, I will
entertain a motion to change the wording so we
have a corrected motion seconded and approved
regarding this, so there's no misunderstanding of
what the motion was.
Michael, if you'd like to make a motion
as to what your remembrance of it should be, or
Jane, either one.
MR. BUCHET: May I consider that a
second while looking at the explanatory --
CHAIRPERSON BURKHAMMER: Yes, you can.
MR. BUCHET: -- sentence that says "This
motion was made some that ACCSH members can
participate in multiple workgroup sessions during
the main meeting."
I understood the intent when the motion
was made was to address the issue of this meeting,
not future meetings and we can either try and
retool this or we can let this one go, because it
hasn't taken place.
We have more than two-hour workgroups
here and then I think we have a bigger discussion
as to how we schedule these meetings in the future
so that we can get to all of them, not only so
that we can get to them, but we have workgroup
attendees who need to participate in multiple
workgroups and they're left to choose or to try
and run between.
I don't think changing -- changing the
wording will simply say that we have a problem, it
won't solve the problem.
CHAIRPERSON BURKHAMMER: Jane, I think
what I'd like to do during the day today, if all
of the workgroup reports do not run long, we will
ask you to make a short presentation on this which
would cover what we've just talked about.
MS. WILLIAMS: That's fine. Thank you.
CHAIRPERSON BURKHAMMER: Does everybody
on the Committee have the hand out that Jane gave
us this morning? Is there anybody that didn't get
that? The Advisory Committee Guidelines? Keep
that handy, we'll be pulling it out later.
Any more changes to the minutes from the
February meeting?
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(No response.)
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CHAIRPERSON BURKHAMMER: Hearing none,
do I hear a motion to approve, with amendments?
MR. COOPER: Motion from Steve Cooper to
approve.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Cooper. Second? Larry?
MR. EDINGTON: Second. As amended.
CHAIRPERSON BURKHAMMER: As amended,
correct. Any discussion?
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(No response.)
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CHAIRPERSON BURKHAMMER: All in favor of
approval of the February minutes as amended,
signify by saying aye.
VOICES: Aye.
CHAIRPERSON BURKHAMMER: Opposed?
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(No response.)
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CHAIRPERSON BURKHAMMER: Abstentions?
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(No response.)
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CHAIRPERSON BURKHAMMER: Approved, as
changed. One of our Advisory Committee members,
Danny Evans, is not with us today and I'd like to
note Danny has cancer and is not doing well, so if
we could keep Danny in our prayers, we'd
appreciate it and I know he would appreciate
everyone thinking about him and hoping for a great
improvement in his condition.
CHAIRPERSON BURKHAMMER: The first
workgroup report, Jane and Steve, OSHA Form 170.
We have a hand out or you can get it out of your
binder.
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OSHA Form 170 Workgroup Report
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MR. COOPER: You'll find in front of you
hand outs from the rough draft that we have for
OSHA Form 170, which is a form which compliance
officers would use when investigating fatalities.
In the past, over the last few decades I
might add, we've had some problems with the
information that has been derived from the reports
and the type of report that OSHA is presently
using.
We had a workgroup meeting, which was
chaired by myself and Ms. Williams of this
Committee on May 2, 2000, last week -- this week,
15 were in attendance from the Directorate, Office
of Management Data Systems, various other
workgroups and the chairman of this Committee was
in attendance, Marie and Mike, who chair the Data
Collection Group, were also in attendance. It was
a very good meeting.
The workgroup will concentrate on
construction language and occurrences for Sick
Codes 15, 16 and 17. Our concern with this
committee is that the form that we are trying to
develop for fatalities for OSHA compliance
officers is clear, concise, to the point and still
gets us the data that we need.
We are concerned that this type of
governmental form can be lengthy and can be
brought forth in a matter in which compliance
officers might not fill the form out due to its
length.
We've even had discussions that we've
got to be concerned that it's not like the new
census form that's traveled around this nation and
which no one will fill out.
We had representatives from all
different areas, as I said, this was a very good
meeting. We are trying to get data back to OMDA,
which is the computer people who put all this
language in, trying to get this back by August of
this year into a preliminary form and hopefully, a
final form later this year.
This will include master coding and
computer support functions in which if a
particular fatality occurs, the computer would
branch out off of a particular area and go into
another area in which more specific questions
could be asked.
It sounds like a simple measure, just
bringing forth a form, but as it travels down the
road, we have the Bureau of Labor Statistics
involved, we have all other agencies involved in
the government and it gets to be time consuming.
But we intend to get this work done and
we intend to get it done in a manner in which the
form can be used and gather very viable
information for this agency and this committee so
we can identify where the problems are happening,
what skills were involved, all the other data.
We want it to be concise and I will end
by saying we are very concerned about a realistic
form, a concise and to the point form versus 20
pages of rhetoric which will not give us the data
that we need.
Jane Williams may have a few other
comments on this.
MS. WILLIAMS: I think that I'll just
agree with everything Steve said. The meeting was
very productive. We're looking forward to working
with Data Collection to be sure we pick up their
general requirements, capture the data that
they're looking for and it's a very aggressive
schedule, to have it done by August, but we're
certainly going to try to provide the
specification language to the OMDS so that they
can in fact look at their next year resourcing to
support our activities with the Directorate.
CHAIRPERSON BURKHAMMER: Thank you. I
thought you had an excellent meeting with a lot of
good dialogue. I know you will make the August
deadline.
Data Collection, Michael and Marie?
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Data Collection Workgroup Report
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MR. BUCHET: Thank you, Mr. Chairman.
If everybody takes a look, you should have
received a copy of the working notes from the Data
Collection meeting.
No? You should have gotten Data
Collection also. If you haven't -- please take a
look. You haven't got May 3, 2000 Data Collection
and Targeting Workgroup.
Because that workgroup did not meet at
the February ACCSH meeting in Chicago, we had a
brief recap of our charge, where we had been and
where we were going.
The constant refrain in Data Collection
is that we need to know more to understand the
difficulties of gathering data for OSHA and that
sounds like a sour note and an old song, but it is
an incredibly complex problem which makes our
cooperation with the 170 Form workgroup all the
more amazing, because they are on track and on
target to get something done and in the field that
is user friendly and useable rapidly and we seem
to be the ones who are holding the process up by
going but, but, but, but.
There are several reasons for the
"buts." No matter how good the collection tool
is, if the information gathered is not stored in a
sort of standardized retrievable form, part of the
useful information that could be gleaned from
looking at the incidents in the field will be lost
simply because of the complexity of the process.
We are going to do our best to make sure
that the form goes forward on the form workgroup's
schedule, while making suggestions to OSHA on how
to be able to transition that to an improved data
collection system and we only touched on that
slightly.
Everybody remembers that we did a review
of the NACCSH code because sick codes are going to
disappear in maybe five years, maybe three years
and the NACCSH will supplant them.
There is a new draft of the NACCSH out,
we will have to look at that and find out whether
a discussion of sick codes is something that needs
to take place or whether we need to say to OSHA
start working on the transition because it's going
to be here before we're ready.
In keeping with all that sort of
background information, we had scheduled a couple
of presentations for the workgroup.
Don Peterson returned to answer
questions that we asked of him when he came and
made a presentation here in December. He has done
his homework. One of the issues for OSHA is
efficient targeting of compliance resources.
Mr. Peterson used to work for the Bureau
of Labor Statistics and spent a lot of time
working on Workers' Compensation data and believes
that there is a way to harness Workers' Comp
experience modification rating data, at least for
construction companies in the various states
assigned risk pools, to assist OSHA's targeting
effort and he brought to this meeting a review,
because not all of us at been at his first
meeting, and then started answering our questions.
What we found out is we need more
information. There certainly are some interesting
possibilities once you get the experience
modification rating data for a given area, there
is a weighting system that will allow you to rank
-- certainly at least one system for allowing you
to rank the companies and prioritize which ones
you might like to look at.
The next question becomes how do I know
after I've ranked the companies on this historical
data that they're actually working on a job Monday
of next week so I can drive out there and inspect
it. Mr. Peterson is working on that.
The next group that came in, F.W. Dodge,
which is part of McGraw-Hill's growing information
empire, brought a team of three people to talk to
us about how F.W. Dodge collects information in
the construction industry.
For those of you who were there, I hope
you agree that it was astounding to hear the
amount of energy and resources and people they
have involved in that effort. They have a budget
for -- as I understood it, for the collecting of
construction information of 34 million bucks a
year.
They spent a good deal of time telling
us what they captured, when they captured it, how
time-sensitive it was and they also very frankly
went and explained to us what they don't capture,
but they're looking at capturing.
I realize that there are limitations.
We have agreed, and you can look at the notes for
more detail, we have agreed that we will continue
an ongoing discussion with F.W. Dodge. They are
receiving pressure from a number of consumers,
OSHA being one, to refine the information that
they collect on construction.
One of the things that they don't
collect routinely is subcontractor information
after the jobs start. If they capture it through
bidding documents, they have it and they keep it
there, but they don't make a concerted effort to
go to a job site once it's started to find out
what subcontractors are there.
For the data collections purposes and
certainly compliance targeting and for targeting
interventions in the future, knowing what
subcontractors are there and the mix of
subcontractors by job type seems like it would be
a very useful sort of information to capture.
We had some general discussion at the
end, the session ran long, one of the Dodge guys
had to leave to make his airplane, two of them
stayed on and they may still be waiting to catch a
flight because they left late.
We had, as I said, a promise to keep
this conversation going. Marie, have you got
anything you'd like to add?
MS. SWEENEY: You've covered it all.
MR. BUCHET: I've covered it all. Thank
you, Mr. Chairman.
CHAIRPERSON BURKHAMMER: Thank you,
Michael. Excellent report. Any discussion on
Michael's comments by the Committee?
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(No response.)
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CHAIRPERSON BURKHAMMER: The next report
is on musculoskeletal disorders, the same two co-chair.
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Musculoskeletal Disorders Workgroup Report
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MS. SWEENEY: Good morning. We had a
fairly lively meeting yesterday, but it wasn't too
contentious, as it had been. Michael started out
talking about some of the activities that went on
at the conference in Rosemont and made the comment
that he thought it was really good for ACCSH to
get out into the field and talk to people that we
represent and get their input and let them know
who ACCSH is and what we do. He suggested that
ACCSH get out in the field more often.
CHAIRPERSON BURKHAMMER: Duly noted.
MS. SWEENEY: We had a couple of --
apparently at the meeting, and I was not there in
Chicago, there was a discussion regarding the
draft document on MSD and its presentation on the
OSHA web site. We didn't have a whole lot of
discussion at the meeting on that.
One of the questions of the attendees
was what will the MSD workgroup do in the future
and Michael and I have talked about this at length
and we are committed to soliciting from the
public, from employers, from employees useful and
successful interventions and solutions that people
have implemented on their job sites relative to
preventing musculoskeletal disorders.
At the minimum, they could be anecdotal,
but right now we haven't received much and I know
we've been asking for that information for over a
year.
We'd also like to have information on
unsuccessful interventions that were tried, but in
terms of the successful ones, we're interested in
a couple of things: did you reduce the risk for
Musculoskeletal disorders; did it perhaps increase
productivity; did it perhaps increase morale; what
were the positive aspects and what were the
negative aspects; what in fact did happen; and
could it be transferred from one job site to the
other.
There was also some discussion about the
workgroup creating a series of ergonomic modules
to be inserted and integrated into the OSHA ten-hour course and we're going to be discussing this
at the next workgroup meeting.
In terms of the document too, it is our
understanding from OSHA that they are working on
the draft ergonomics brochure, document, whatever
you want to call it, and we do know that somebody
at OSHA is reviewing the contents and hopefully,
we will be able to discuss what OSHA has been
doing at the next workgroup meeting, talk to them
at length, so we would like a representative from
OSHA who is working on the document to participate
in our workgroup next time.
One of the highlights of the workgroup
meeting was a presentation by Mr. Larry Livertor,
who is a member of the Maritime Advisory Committee
for Occupational Safety & Health, it's called
MACOSH.
MR. DEVORA: Question. You said "review
the document." Are you talking about the document
on the web page? What document are you talking
about?
MS. SWEENEY: The document that was
submitted to ACCSH on September 30.
MR. DEVORA: Right. The one that's on
the web?
MS. SWEENEY: On the web. And any
changes that they might recommend, what kinds of
things they're doing, what information -- more
information they might need. There might be a
correction. Larry is a --
MR. BUCHET: Larry, do we need to
correct your title for the record?
MR. LIVERTOR: I'm an OSHA employee on
(inaudible).
MR. BUCHET: Right. But you still have
responsibilities with the Maritime Advisory
Committee for Occupational Safety & Health?
MR. LIVERTOR: Yes.
MS. SWEENEY: Was that picked up? Larry
is an OSHA employee who is on detail to the
National Safety Council.
Anyway, he spent about an hour talking
about a labor, management, MACOSH, NIOSH
partnership that has resulted in a study looking
at high-risk jobs in the maritime industry that
are causing musculoskeletal disorders.
This particular study started in fiscal
year 1998 and it includes shipyards from Maine to
Seattle, from Seattle to the Gulf Coast, as well
as a couple of small employers in the middle of
the country, say on the rivers. They build
shipyards, they work for the Department of
Defense, they build barges, small companies, small
rehab companies.
The goal of this study was to develop
guidelines for dealing with ergonomic problems and
also developing workable solutions. The goal was
not to develop a rule.
What has come out of this is that NIOSH
went to each of the companies, each of the
shipyard companies, and again, this was a
partnership, evaluated OSHA 200 logs, talked to
employers, talked to employees and also did an
ergonomic assessment using standardized tools to
evaluate and identify high-risk jobs.
Then also through this partnership, they
recommended interventions or solutions to taking
care of or reducing the risk factors related to
musculoskeletal disorders.
According to Larry, they've proposed
approximately 57 interventions and from my
discussion with Steve Hudock, who is the project
officer at NIOSH, they're evaluating these
interventions right now, seeing whether or not
they work.
The information in an interim report
will be put up on the NIOSH web site for all to
see. It's not up there yet and probably by the
next meeting we'll have that up on the web.
But really, the focus of it was not --
it was not done on a regulatory basis, it wasn't
generated because there was a regulation, but it
was generated because both labor and management
knew that this was a high cost problem, both from
a Workers' Compensation position to a human toll,
there are a lot of people getting hurt, so they
felt that this was a prime opportunity to go into
the yards, share information to reduce
musculoskeletal disorders.
According to Larry, this isn't an
industry that does a lot of collaboration amongst
themselves, but they found out that this was
really something that they needed to do in order
to one, protect their industry, but also to make
sure that workers were safe.
So next meeting we're going to ask a
member of MACOSH, Larry Reid I believe is the
chair, who works at NIOSH, and also the project
officer from NIOSH, also a representative from one
of the employer groups, as well as labor, to come
to the committee meeting -- not the committee
meeting, but to the workgroup meeting, and give us
an update on the study, tell us what they're doing
and tell us some of their successes and perhaps if
they have some feelings as well.
Is there anything else of note that we
need to --
MR. BUCHET: I suppose only the question
would the committee be interested in having that
presentation done at the full committee instead of
the workgroup? We don't know. How -- an hour,
Larry? An hour, hour and a half?
MR. LIVERTOR: Yes.
CHAIRPERSON BURKHAMMER: I think that
would be well worth the Committee's time to hear
that. Could we make a note to add that?
MR. SWANSON: Done.
MS. SWEENEY: You were handed the notes
from the meeting just recently, so that ends my
report. Michael, if you have more?
MR. BUCHET: I have nothing to add,
Marie.
MR. DEVORA: There was a question asked
yesterday and I don't remember the answer and it's
only been one day, but someone asked was there any
more comments that we could add, if they could
submit more comments to your workgroup or changes
to the web page?
MR. BUCHET: The process is to submit
comments to the workgroup and we received some
from Lauren Wolf at the conclusion of yesterday's
meeting and we'll discuss those at the next
meeting.
After the workgroup discusses them, if
the workgroup says we should bring them to ACCSH
in the form of a motion, we will and that motion
will be they should be added to the document
that's on the web page or they should modify the
document on the web page and then ACCSH gets to
decide whether or not those comments get passed
on, so we're more than willing to have comments
and as we say, keep bringing those interventions
in.
CHAIRPERSON BURKHAMMER: Jane?
MS. WILLIAMS: Mr. Chairman, I would ask
that if the OSHA Directorate is going to be giving
any type of a status report on the working
brochure, draft brochure or whatever, could that
not be presented also at the full ACCSH meeting?
I would not want to miss the MSD meeting
where that would be presented because I think
that's something that would affect us all for
discussions here.
CHAIRPERSON BURKHAMMER: I don't see any
reason why we can't do that. We'll put that on
the agenda for the August or September meeting.
MS. SWEENEY: Mr. Chairman?
CHAIRPERSON BURKHAMMER: Marie?
MS. SWEENEY: Would you want to
integrate that report as part of the workgroup
committee report next time?
CHAIRPERSON BURKHAMMER: Next time.
MS. SWEENEY: Okay. Thank you.
CHAIRPERSON BURKHAMMER: Any other
discussion on the MSD report?
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(No response.)
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CHAIRPERSON BURKHAMMER: Okay. Thank
you, Marie. Jane, I think now might be a good
time for you to insert the discussion on the
Advisory Committee on Construction Safety & Health
Rules & Guidelines document and what you'd like us
to do with that.
MS. WILLIAMS: After our Chicago meeting
I took the comments that had been given to me to
go through our guidelines and make recommendations
to you for changes.
How this appears, the language that has
a strike through is the existing adopted language.
The language that is underscored is insert
language for changes that have been recommended.
There's no pride of authorship in this whatsoever,
so anyone who would want a term changed, please
just suggest it to the Committee and we certainly
can do it.
I think if you go through this tonight
and look at some of these issues, you will not
have a problem with them. There are a couple,
though, that I will just point out for you.
We had a great deal of discussion on
what constitutes a draft report and it was the
consensus that we eliminate the word "draft"
because of the confusing that it's causing when
something goes on the web, when it leaves a
workgroup or when it's finally adopted.
The term that was suggested by most of
you was, if you look on Page 2, you will see where
we have struck "draft report" and we're referring
to it as an "in process report." That is the
report at the time that it's presented to ACCSH,
to the Committee.
That report in its final form is not
available to the public at that point in time, it
has to be acted upon by ACCSH. Once that is
completed, there will be several things that will
occur.
One, if the Committee adopts it as it
is, it goes to the Directorate, it's available and
the Committee can request it go on the web site
and they would do so by a cover document that
would state who the chairman is, if additional
comments are requested and can be processed or if
it's a final, done deal, never to be talked again
type of an issue.
If the Committee has comments that they
wish to have incorporated and/or changes, the
chair would then refer the document back to the
co-chairs, who will edit the document, make the
changes and then forward the corrected adopted
report to the DFO so that it can then be made
available to ACCSH and public request.
The key here is to be sure we get the
right document in its adopted form out to the
appropriate people who need this information.
Reports distributed by the Directorate
will either be in written form or it can be put on
the web site, as I said. We will have a cover
sheet so the public, when they're reviewing a
document, they will understand what its intent is,
who to contact with comments and we can have a
more streamlined information back into the
workgroup process.
The other issues coming down, how we
review reports, there really isn't much change in
that. We do seriatim. Under the ACCSH meeting we
just say "will be available." Most of these are
practice type statements that we're going.
If you go to Page 6, postponed meetings,
we have had a concern there, just clarifying that
it is the Assistant Secretary who will approve the
postponement of any scheduled ACCSH meeting.
The model workgroup agenda, Page 7, I've
struck four hours duration, so the workgroup
meeting shall be determined by the workgroup
chairs and that's in keeping with our prior
discussion, whether the work can be done in two-hour, four-hour, eight hours, whatever, so I think
that will be okay.
The criteria, whenever we can serve
notice of 45 days on workgroup meetings we will.
It will be posted on the ACCSH web page, as we
have said prior.
The co-chairs have the prerogative of
presenting a formal written report to participants
of their meeting or, if they wish to just give a
verbal summary at the conclusion of that meeting,
that will be up to the chairs. If they wish that
report to go on the ACCSH web, then they would do
a cover sheet and provide that to the Directorate
so he knows what their intent is.
Going into meeting preparations, this is
just how we go about arranging ACCSH meetings or
not the ACCSH meeting, but the workgroup meeting
more in particular.
Research meetings to get prepared for
our meeting. Page 10 again reemphasizes the cover
sheet process so we can inform people what we're
doing and Page 11, any ACCSH meeting that is
scheduled is approved, there's no one who really
approves it, except of course the Assistant
Secretary, so that language can be removed as it's
showed here. The same way with the Government
Travel Agency. It's the contract people we have
to utilize.
You will see an insert that the ACCSH
members will contact the Directorate of
Construction to begin their travel authorization
process. We've been doing it a little bit
backwards, it has been getting confusing from
members and causing a lot of problems in our
travel arrangements, so what this is basically
saying is that we will call Bruce's office, tell
them that we have scheduled a workgroup meeting,
he then can start the travel authorization
paperwork process. They we go through contacting
Public Affairs and go through all the stuff that
we're doing.
The last item is just eliminating the
airline ticket information, which we no longer are
doing. Everything is electronic and these changes
are just bringing into it compliance with the
procedures of what we're doing for those of us who
travel out of state or out of the Beltway.
Mr. Chairman, that's most of it. I
think if the Committee would like to look through
this later and digest it, we could come back with
a motion or comments for the changes.
CHAIRPERSON BURKHAMMER: I have a
question. If you look at Page 2 and Page 8 at the
same time, I'm not quite sure I understand the
difference between an in process report and a
meeting summary report.
MS. WILLIAMS: At the end of the
meeting, typically in a workgroup meeting, as we
did with 170 yesterday, we gave a verbal summary
of all the action items that we had discussed so
that participants of the meeting knew exactly what
the next steps of the Committee were going to be.
That was just a detailed summary that I
did in lieu of formal meeting minutes to go to all
the workgroup people. We do have a report that
came here to ACCSH which we reviewed earlier, but
it is not my intent to copy everyone in the 170
workgroup meeting with the details that came to
this meeting, so I provided a verbal summary.
The in process report would be -- an
example is our infamous MSD report. Once it was
adopted, it is still an in process document, Marie
may still wish to have additional comments, so
it's not a conclusive, final document.
I certainly will entertain any other
terms to make it clear what we're trying to
achieve here.
CHAIRPERSON BURKHAMMER: So your 170
report you and Mr. Cooper presented earlier falls
under Page 8?
MS. WILLIAMS: That is correct.
CHAIRPERSON BURKHAMMER: And Marie,
yours on MSD falls under Page 8?
MS. SWEENEY: It's a final document,
there will be no changes to that report.
MR. BUCHET: What we have done with the
Committee splitting hairs with workgroups that we
co-chair is to provide what we've called notes, I
think fairly consistently throughout, and have
tried to make them the basis of this oral
presentation for the full ACCSH.
They don't rise to the level of
something as formal as the document that was sent
to OSHA as a model, but they certainly could be
posted on the web for the workgroup, as far as
we're concerned.
CHAIRPERSON BURKHAMMER: My point here
is trying to find out in the first reference on
Pages 2 and 3, if these are considered in process
reports, then the ACCSH full Committee has to vote
to adopt the report and then if I turn it over to
the DFO. If it falls under 8, it requires no vote
of the Committee and it's a workgroup working
document.
MS. WILLIAMS: That's how I see it.
MR. BUCHET: Our meeting notes are
final. We're not going to -- we won't review them
at the next meeting and say okay, does anybody
want to make changes to the content.
But we would like to post them on the
web so that there is a fairly simple and efficient
access for people who want to find out where we've
been and where we intend to do because we do state
where we intend to go in some of these notes.
But it is not a work product that needs
to be recommended to OSHA.
MS. SWEENEY: Mr. Chairman, if I may?
CHAIRPERSON BURKHAMMER: Marie?
MS. SWEENEY: On Page 7, one thing under
the notes model workgroup agenda, third from the
bottom with the little check box, it's a summary
or action item of current meeting, which Jane was
saying is a verbal summary.
Really, what those notes do is reflect a
verbal summary in a written form. It also helps
us to know what we have to do for the next
meeting. It's really just kind of things that
went on.
You might want to add that as another
check box and say it's written meeting notes,
they're not required and I would suggest that they
not be, but as an option of the chairs.
MR. BUCHET: Why not simply call them
summary notes or meeting notes or meeting summary,
leave the form up to the chair and the workgroup
to decide on and then allow the workgroups that
would like them posted on the ACCSH portion of the
web to post them?
CHAIRPERSON BURKHAMMER: You're allowed
to do that under 8.
MS. WILLIAMS: That's correct.
CHAIRPERSON BURKHAMMER: So if we called
these three documents status reports, which is
what Page 8 describes, that's fine, you can do
with them what you wish.
MS. WILLIAMS: Okay. Status report.
CHAIRPERSON BURKHAMMER: Discussion on
Jane's comments? Larry?
MR. EDINGTON: Let me ask a question for
my own edification. It's always been my
understanding, in terms of my responsibility as a
workgroup co-chair, that I don't have an absolute
obligation under our rules to produce, if you
will, formal minutes and I want to make certain
that we're clear we're not creating expectations
that there will be formal minutes from every
workgroup meeting and that they're made both
available to members of ACCSH, as well as posted
on the web site, if we thought it were to be
appropriate.
With my workgroups, we've been working
relatively informally, we have been producing what
I would characterize as a document which
summarizes the activities of our meeting and in
some instances may lay out what we hope to
accomplish on an interim basis, work assignments,
et cetera. We've done nothing more than that.
CHAIRPERSON BURKHAMMER: You're right.
That's also under 8, it says either in writing or
verbally, so you're all right there also under 8.
Michael?
MR. BUCHET: Mr. Chairman, I wonder if
we come up with a more neutral name for whatever
this activity is, if we call them status reports,
then they seem to become a formalized part of the
process.
Maybe chairman's notes or chairman's
summary, something that sort of puts them in the
-- that indicate by the title that there is a
prerogative involved and if the chairman doesn't
do it, the chairman doesn't to it and that's the
workgroup's issue.
CHAIRPERSON BURKHAMMER: Mr. Cloutier?
MR. CLOUTIER: Mr. Chairman, may I
suggest we use the wording "progress notes"? What
concerns me, if you go to Page 7 of the document
and we have the model workgroup agenda, if you run
down the check list, it gets to be more of a
formal meeting, formal requirement and you lead
into that trap of the "report."
CHAIRPERSON BURKHAMMER: Is progress
notes acceptable to everybody?
MR. CLOUTIER: And if you go to Page 2
and say workgroup report or say it's progress
notes at the time of the presentation to the ACCSH
Committee unless there's a formal recommendation
from the workgroup to the full Committee to be
voted on.
Because we've seen this go full cycle.
We used to have very formal meetings, back end
formal meetings and we're pushing more and more to
a formal status report and posting an additional
thing.
I think we could call these progress
notes that happen at a particular workgroup
meeting.
CHAIRPERSON BURKHAMMER: Is progress
notes acceptable to the Committee? Mr. Rhoten?
MR. RHOTEN: Just a comment. It would
seem like sometimes the issue of the Committee
would dictate where you need a formal situation or
a less formal situation.
Some of the issues have been pretty
heated and there's been a lot of opposition and in
those cases it seems like you need some kind of a
paper trail of sorts to define where everybody is
at, but if you come back with a consensus, it
doesn't seem to be like it needs to be too
formalized.
CHAIRPERSON BURKHAMMER: That's the
prerogative of the chair, to be able to create
whatever you think is appropriate.
Hearing no objection to progress notes,
Jane, would you make that correction?
MS. WILLIAMS: Yes.
MS. SWEENEY: Mr. Chairman, another
issue?
CHAIRPERSON BURKHAMMER: Marie.
MS. SWEENEY: This in process report,
I'm sort of confused and I think I'd like to have
some explanation on it.
I thought that when the workgroup
presents a report to the ACCSH, to the full ACCSH
and it is accepted by the ACCSH, it really is not
in progress, it is a final product of the
workgroup.
MS. WILLIAMS: Once adopted, that's
correct.
MS. SWEENEY: Once, adopted, that's
correct.
MS. WILLIAMS: That's correct.
MS. SWEENEY: Now, it's my
interpretation of this verbiage here, "in process"
means that it is either being written by the
workgroup or it's presented by the workgroup to
the full Committee, but the full Committee has not
accepted it and it's basically a draft that goes
back and forth. Is that what we're talking about?
CHAIRPERSON BURKHAMMER: Yes. If you'll
look on Page 3, at the top there where she defines
the in process report with amendments or changes,
we make the changes and amend it as the Committee
chooses to do.
The chair then sends it back to the
workgroup for final correction or we can forego
that, at the chair's prerogative and turn it over
to the DFO at that time, as amended during the
workgroup during that session, so it's an
either/or.
MS. WILLIAMS: The reasons, too, we had
said that it would be referred back to the chair
was not to put the Directorate in the position of
interpreting comments, so we were in control.
CHAIRPERSON BURKHAMMER: Yes, I know.
But there's been certain times when we've made
motions and the motions have had amendments made
to them that make wording corrections in the
document that we made at that time and give the
corrected document to the DFO after the final
vote.
We don't have to refer it back to the
Committee to make minor word changes, it's major
corrections that we would send it back for.
MS. WILLIAMS: That's true.
CHAIRPERSON BURKHAMMER: Mr. Masterson?
MR. MASTERSON: I may be slow, but am I
understanding that you're suggesting putting
documents that are currently being worked on by
workgroups on the web page?
MS. WILLIAMS: That's the prerogative of
the chair.
CHAIRPERSON BURKHAMMER: If the
workgroup chair wants it that way. It's up to
them, it's their call.
MR. MASTERSON: And this is before it's
been presented to the full Committee and accepted?
MS. WILLIAMS: No.
CHAIRPERSON BURKHAMMER: No, no. Only
after it's presented to the full Committee can it
go on the web page.
MR. MASTERSON: So then it's a completed
document.
CHAIRPERSON BURKHAMMER: It's an
accepted document.
MR. MASTERSON: Okay.
CHAIRPERSON BURKHAMMER: Any other
discussion?
MR. DEVORA: One question.
CHAIRPERSON BURKHAMMER: Felipe.
MR. DEVORA: An example that comes to
mind, the MSDS that's on the web page right now,
we're saying that we're still soliciting comments
for that. Is that an exception to this final
product?
MR. BUCHET: That product was turned
over to OSHA and maybe the word "draft" is
misleading. It has not been edited for periods,
commas and not all the misspellings have been
caught in it.
It is a complete document, it stands as
it exists. It was given to OSHA as a model or as
material for them to generate and then we did a
show and tell. We held up examples of what were
supposed to be generated from that draft.
The workgroup's charge to continue
soliciting material and information has gone on,
it went on before that document was created, it
went on in the last charter and will continue to
go on and we are reaffirming that.
What we are saying is that there is a
mechanism, if a better mouse trap comes down the
road and we need to get that on Page 17 of
whatever the final product is, there is a
mechanism for getting the better mouse trap,
looking it over, getting a consensus of ACCSH that
yeah, that really probably is a workable solution
for our industry and giving it to OSHA.
Now, remember, the document that OSHA
creates, when it creates it, may or may not
include what we send along. We are simply
fulfilling the obligation to continue to collect
and give good advice to the agency.
CHAIRPERSON BURKHAMMER: I think we have
-- and correct me if I'm wrong, but there's three
workgroups who have completed their work and
submitted their documentation to OSHA, but are
ongoing for research continuation, working with
OSHA. MSD is one, multi-employer is one and
sanitation is one.
Those are three things that are ongoing
that have the potential for updates or changes,
depending on new information or incoming data or
new toilets or whatever comes out of the deal.
They can change those and supply new
information to the Directorate, who again, as
Michael said, has the option of accepting or not
accepting what we supply, but those three
workgroups are continuing.
MR. DEVORA: Okay. It was just, like
you said, the word "draft." It's the final draft,
it sort of leaves that impression.
CHAIRPERSON BURKHAMMER: And it really
is a draft. We're giving a recommended draft to
the agency to determine then -- for them to
determine what they wish to do with the draft.
Any other discussion on the notes and
changes that Jane has made? If you take a few
minutes and look through it and see anything in
there you want to talk about, bring it up.
MR. BUCHET: Mr. Chairman, are we going
to do this now or I thought we were giving this as
homework and we'll finish it up tomorrow?
CHAIRPERSON BURKHAMMER: That's fine.
We can do it as homework and we can finish it up
tomorrow. That's fine. Not a problem.
Hexavalent Chromium. Owen is not here,
Bill, would you take that, please?
MR. RHOTEN: Sure. Mr. Chairman, I've
opted to give you a very brief verbal report.
CHAIRPERSON BURKHAMMER: That's fine.
Sometimes brief is good.
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Hexavalent Chromium Workgroup Report
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MR. RHOTEN: Basically, we had a very
successful first meeting and that was mainly due
to the fact that Caroline Freeman from the OSHA
Health Standards came to the meeting and also that
Marjorie Wallace from NIOSH was on a conference
call from Cincinnati and those two ladies provided
the committee with the information that we needed
and gave us a background on the problems with this
particular issue.
In any case, let me give you a little
background on where this started. In 1993 OSHA
was petitioned by the Oil Chemical & Atomic
Workers for the burdensome standard to lower the
permissible exposure for -- occupational exposure
to hexavalent chromium.
OSHA denied that request at the time and
then the next year OSHA initiated a Section 6(b)
Rulemaking for hexavalent chromium and the new
rule is expected to lower the exposure limit that
will apply to the general industry, shipyards and
they want to adapt the rule to reflect the
conditions in the construction industry.
Notice of this Proposed Rulemaking will
be in The Federal Register some time next year. I
think we're trying to define what the workgroup's
duties would be, how we could assist in this
effort.
After some considerable consideration, I
think it came down to this, that NIOSH needs
access to job sites where they can perform tests.
They'll need to get access to sandblasting sites,
welding sites. I think we have to gather
information through the building trades to
identify what crafts are exposed to this and how
many.
I can tell you that I yesterday pulled
some figures out of our office, because we have a
welding certification program, and determined that
about 15 percent of our welders -- our welding
tests are stainless steel and I think we need to
gather that kind of information from the other
crafts and also assist NIOSH to get on the sites
to do the tests.
We've got 140 testing facilities in the
UA, where we do our own testing for the
contractors and those sites we'll make available.
I think there's about 100 million workers that are
exposed to this product, so we'll be again working
with the building trades to try to determine if we
can gather information.
I think the question is going to be, at
the bottom line, is the technology there to reduce
the exposure limit to the point that they need to
get at to protect the worker. That's going to be
the question I think that needs answering in the
coming months.
For instance, in stainless steel
welders, if you have to put them on air line
respirators to make welds, it's more than just an
inconvenience, in some cases it's going to
interfere with the quality of the weld that the
guy can make in tight places, but that's going to
be our contribution to the -- that's what we'll
contribute to this project in any case is just
information.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Rhoten. Any discussion? Larry?
MR. EDINGTON: Thank you, Mr. Chairman.
Bill, the thought occurs to me as you're talking
about that that you may want to take a look at
some of the work that the Center to Protect
Workers' Rights has done on their T-Beam exposure
assessment.
MR. RHOTEN: That was brought up at the
meeting, the fact that they already have some
information. I think NIOSH has access to that.
I'm sure they do.
CHAIRPERSON BURKHAMMER: Chris was at
the meeting. I sat in on this workgroup meeting
and was really impressed with the depth that they
have gone to look at Chrome 6 and the effects of
Chrome 6 and Marie was also in the meeting and
they had a representative from NIOSH on the phone.
I think the overall start of this
workgroup was really good. I think we got off to
a great start, I was pleased with the way Bill ran
the meeting and I think we're going to have some
outstanding contribution from this, thanks to the
industry.
MR. RHOTEN: We're still going to get
that work site in Hawaii lined up.
CHAIRPERSON BURKHAMMER: And I'm ready
to go whenever you call. Not a problem. Why
don't we take a break, come back at 10:30 and I'm
going to ask Harry to introduce our next
presentation when we come back, if you would,
Harry.
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(A recess was taken at 10:06 a.m.)
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(Back on the record at 10:28 a.m.)
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CHAIRPERSON BURKHAMMER: Harry, would
you introduce our next guest, please?
MR. PAYNE: Yes. Mr. Chairman and
members of the Committee, about seven years ago we
began the Carolina Star Programs in North
Carolina, which is our iteration of the USVPP
program.
In our discussions with industry, we
tried to elicit and one of the things that came
out is we held high the excellence issue and tried
to put great emphasis on the program. A key
element was who we were going to put in charge.
We have been very fortunate to get
someone who not only operates the program, but has
used the program as a tool to encourage
excellence. It's not just recognition, it is
advocacy and he has taken it to a really high
order.
During the course of his work, John
Bogner has realized that we were ignoring the
construction industry, just because it was hard to
measure, so over the last few years John has
developed a discussion with construction and its
various aspects in North Carolina, in the hope to
reward excellence in a group that we spend a great
deal of time with in other ways.
Out of that enterprise came the North
Carolina Building Star Program, which is a hybrid,
if you will, or a star within the same
constellation as our Carolina Star.
I very much appreciate that John has
stayed with us, he's had a great number of offers
to go elsewhere, but his commitment to safety and
health and to improving the Star Program in North
Carolina has been very good for all of us.
Mr. Chairman, it's a great pleasure to
have him up here with us this morning.
CHAIRPERSON BURKHAMMER: Thank you.
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Carolina Star Programs
|
MR. BOGNER: I'm behind you, so watch
your back. Good morning. It's a pleasure to be
here and I'd like to spend the next few minutes
and talk to you about the Building Star that we've
got designed in the State of North Carolina.
A brief background on myself, as the
Commissioner eluded to, I spent several years in
the industry, I started off in the construction
industry building houses as a laborer, in between
high school and going to college.
It opened up your eyes. Of course, back
then when you're 16, 17, 18, climbing around on a
roof, carrying shingles or carrying cement blocks,
you're not too concerned about safety, you're just
worried about getting paid and going out on a
date.
From there, I got my Bachelor of Science
Degree in Industrial Safety Management from
Indiana State University at Terre Haute, Indiana
and then I went to work in the steel industry and
I found out in a heart beat that there is a little
bit of difference between the textbook and the
real world where you've got 9,000 employees in a
steel mill.
When you used to predict two or three
fatalities a year, it really made you grow up in a
hurry. You didn't wear a necktie, you chewed
tobacco and you climbed around and did things that
you never thought you'd ever do in your life.
I had an opportunity to work in the
paper industry and ventured a little in my own
business before coming in as your friendly OSHA
compliance officer.
I was your friendly OSHA compliance
officer for two years and then when Commissioner
Payne took office, he had a vision that the State
of North Carolina design a program similar to the
Volunteer Protection Program, which is with the
Feds, and I was fortunate to be interviewed and
accepted that job back in September of 1993 and
since then, Commissioner Payne has given me all
his support and kind of let me take the reins and
go with it.
Those in the room here are -- is
everybody familiar when I say VPP? Is anybody not
familiar with the Volunteer Protection Process?
Pretty much what it is, that was a
partnership that was designed to take Fed OSHA,
industry and employees and more or less try to
provide the safest and healthiest work environment
possible in a positive way.
Through the North Carolina Department of
Labor and the Bureau of Consultative Services,
which I fall under with OSH, we designed what we
call the Carolina Star Program.
I hate the word "program" because I
think you have enough programs. I look at it as
an ongoing process. Processes are better.
What we tried to do is build a strong
foundation with some large companies that are very
committed to the safety and health processes
within their organization.
Currently, the State of North Carolina
has 22 Carolina Star sites in the State of North
Carolina. I know there's over 550, roughly,
throughout the United States, counting Fed run
OSHA programs and State run OSHA.
At that time, the Commissioner talked to
me, he said you know, John, that's good, but we're
hitting the major corporations, the Georgia
Pacifics of the world, the International Papers,
the Occidental Chemical Corporation, we need to
get into some of the smaller companies.
We also need to look at municipalities,
we also need to look at the construction industry,
so I said okay, Harry, it's time to open up the
box a little bit and we designed what we called
our Rising Star Program in the State of North
Carolina, which is sort of equivalent to the
Merit, if you're familiar with the Merit Program
within the Federal organization.
We currently have two Rising Star
recipients, that just came into effect October 1
of last year. We currently have about seven
pending applications, but the biggy here was we
have also the first municipality to become a Star
site.
That was exciting because we weren't
quite sure how to handle that within a
municipality because we didn't have control. We
like to have control of these sites, but with a
municipality, when you have thousands of acres and
people to cover it, you have your sanitation
workers, your road crews, you have a lot of people
moving around, you get kind of uncomfortable, how
are we going to control this, as far as making
sure they're developing good safety and health
processes.
But we were able to overcome that and
work with municipalities and we have several
municipalities within the State of North Carolina
that are trying to work toward achieving the
Rising Star or Star status and we're really
excited about it.
However, going back to when I was about
16, 17, climbing around and one thing I think --
somebody used to ask me John, how do you know
about a lot of these violations and I said
probably because I violated 90 percent of the
rules and regulations when I was growing up and
working in the industry.
But I said to myself how can we design
something in the construction industry. I know
the Feds have worked on some pilot programs with
it and they seem like they're doing real well, but
what we try to do is first of all, I wanted to
have a forum and talk to people who do the job.
I don't think that we could set up a
process or a program for people if you're not out
there doing the job each and every day. So we had
some forums and we worked very closely with the
AGC's office and talked to a lot of construction
companies out there, listened to their concerns,
took it a step further, talked to a lot of the
employees.
We're very fortunate in North Carolina,
I have a couple very strong what I call
residential or in-house contractors, like Monday
Industrial Contractors and Beacon and these are
people who do construction and they do a very good
job and they have the same problems as anybody
else, from employee turn over to educational
level.
You have a lot of Hispanic workers out
there, you have -- you just have a big mix of
people and how do you get to them with safety and
health issues.
What we found is there's like -- I
consider keeping it simple, four key elements,
although we have to tailor it a little bit
different to the construction industry and this is
what we're really excited about now in North
Carolina and we currently have three companies out
there that are working on their Building Star
application.
The State OSHA has taken then under
their wing and we're going to continue to work
with them, to help them be more or less the
pioneers. You normally have pioneers and settlers
and sometimes that credibility with OSHA -- I know
when I was in industry, that's the last party that
I would call into my facility, but now we're
changing that.
We're changing that make up and this is
what's getting really exciting for the State of
North Carolina.
We're still looking at management
commitment. You have to have management
commitment to safety and health issues. Not just
talking it, but walking the talk. Not only is it
important to have the management commitment to
safety and health issues as a priority, it's a
double-edge sword because the employees have to
believe that there is a commitment to safety and
health issues.
I know I'm preaching to the choir, but
we do a lot of talking, but a lot of times that
does not surface. In the construction industry,
it is so important with the type of workers you
get and the turn over and what have you, we have
to set the tempo as soon as they walk to your
site.
The construction sites that I talked to
when I was designing the Building Star, I said why
is it that you can go from 90 employees one week
and next month 300 employees and you have
absolutely no OSHA reportables. What are you
doing out there, you've got to be doing something
right.
What I gathered was it was so important
for their front line supervisors, and we all talk
about the front line supervisors, but in the
construction industry -- because I know in the
general industry you have more team concepts, but
in the construction industry those front line
supervisors typically are the ones that were like
me when they were 16, 17, climbing around, doing
the job.
They came up from the rank and file, so
to speak. And whether union or non-union, nobody
wants to see anybody get hurt. So what they've
done is they set the tempo, they know what's right
and what's wrong when it comes to tying off or the
proper way of burning or lifting or material
safety data sheets or guarding or GFCI, they
understand this and what they've told me is it's
just unacceptable.
Then the employees working there, they
have to be involved. They have to have the
ownership, the accountability. You cannot have
per se a car drive up on a construction site and
everybody starts hey, here comes the safety guy,
now we have to be safe. It doesn't work that way.
So how do we get the employees to be
accountable and held responsible? That's true.
The employees have to be held accountable and
responsible for their safety and health actions.
So we have the management commitment and
we get the employee involvement, where they have a
say so, and they're held accountable and
responsible, then we have to look at the hazard
recognition.
I'm sure that not individual in this
room wants to get hurt or see a co-worker get
hurt. Most of you are in here trying to help your
working environment, wherever you come from, as
far as safety and health issues. But we still
have people get hurt.
We started off with a moment of silence.
People getting hurt. We had some fatalities.
What are we going to do to change those, can we
ever change it? That's the frustrating part
because as safety and health professionals, you
don't know about the job sites that you've made
safer or the injuries that you've prevented or
fatalities that you've prevented, you only hear
about the ones that slip through the crack, that
you weren't able to save or protect.
So hazard recognition has to be pointed
in to the employees. Not only is it hazard
recognition, because nobody wants to get hurt or
see a co-worker get hurt, typically people get
hurt only because that individual, he or she
didn't recognize that job hazard within that job
task or process that they were performing or it
was a behavioral type of a habit, something that
we knew wasn't quite right, we always did it that
way, hey, we need to get it done.
But I'm here to tell you that if we
concentrate and let the employees know from day
one, set the tempo when they walk through that
gate that they have to have that safety hat on, as
far as the knowledge that safety and health is a
top priority, those employees will have a higher
employee morale, they'll be more productive,
you'll have better quality work performance out of
them, less absenteeism and it's going to be more
profitable and that's right, because there's
nothing wrong with a company being profitable.
They have to be profitable.
But you'll find out that the profitable
companies are also the ones that have less
injuries and accidents.
The second half of hazard recognition is
most of the time when we do our audits or our
check lists and we have our punch lists of safety
items, you'll look and 80 percent of those are
typically created by a worker. That's the facts
of life.
If we don't educate those employees out
there and don't understand and are not
accountable, then we're going to continue to have
problems and what we try to do with the Star
process is to take them to the next level.
Obviously, if this was a glass of hot
liquid and it was on a shelf and it poured on me
and I got second degree burns on the side of my
face, if anybody has ever worked in a steel mill
and seen people getting burned, it's probably the
worst type of injury you can ever see in your life
time or experience.
You have an accident investigation; is
that correct? And if it spills and misses me,
hopefully we're going to have a near miss
investigation. Think about it. Sometimes we do,
sometimes we don't. What do we do at 2:00 in the
morning? Typically, it doesn't get done.
What we try to do with the Star process
is have them look at what if. Identify the
hazards. Okay, here's a hazard, hot liquid.
Here's the exposure, an employee. Let's remove
the hazard before we have an incident or accident
that takes place.
Now is our job done? No. Because we
have to find out what employee let that hot liquid
uncovered, unsecured in an area where it could
fall on somebody because that individual didn't
realize or recognize that they were creating a
hazard.
So it goes back to we have to not just
go through the motions to appease OSHA or your
corporate people as far as the safety and health
training, but what systems do you have in place to
monitor the effectiveness of the safety and health
training.
Yeah, so and so fell 30 feet here. We
went through fall protection last week. They
signed right here, gave them coffee and donuts and
they were educated and trained that they are to be
tied off. Hey, they didn't tie off, that's not my
fault.
No. We have to do better than that.
There's no reason in today's society, as educated
as we are in high technology, that we cannot work
together as one and that's what we're trying to do
in the State of North Carolina.
We are committed with North Carolina
OSHA and the construction industry and working
with the employees to develop quality Building
Star sites. There's no reason why we can't
recognize a lot of these, a lot of these companies
do a good job, but we unfortunately only focus in
on the negative aspects and that's something our
society is built around.
We hear about all the negativeness but
we don't hear about the positiveness. So
Commissioner Payne has set the foundation that we
go ahead and start to work the these companies on
a positive mode, make them better, have them help
us out because they're out there.
They have the credibility. What we're
finding out is happening is subcontractors are
coming on site and saying whoa, I'm going to have
to be on my toes with this company because they
are safety and health all the way and that's a
good thing.
When you have people walking on a site
and you go talk to an employee and ask them about
safety and health and they say hey, when I'm
working for this main contractor or prime
contractor, we have to be on our toes, so that's
what we've got to start to capture.
As this is an infant stage, as we start
to capture this, we'll have to fine tune it.
We'll have to work with the building industry and
construction industry and see what we can do to
continue to develop and nurture this partnership
and as we're developing and nurturing it, we hope
to share data with the rest of our colleagues
across the state and also across the United
States, as far as how successful this process is
for us.
Anybody who is familiar with the VPP
process and also with the Star process, one of the
problems has been the unrealistic goal, as far as
having somebody on-site for three years.
Obviously in the construction business,
unless it's something major, a stadium or
something, you're not going to have the three-year
process going on because you just can't make money
that way.
So what we decided to do in the State of
North Carolina, we're not going to hold them to
being on a site for three years. What we're going
to do is let them fill out an application and in
front of you, you have a packet. What we've done
is we've combined all three programs, the Carolina
Star, Rising Star and Building Star, within this
packet.
It fits real nice into a binder, it's
very cost effective for the state. We've also got
a little sticker for the construction workers to
put on their hard hats, if anybody has ever been
out in the construction field, you know the guys
like stickers and we have a web site for
information and it also has a link to the Federal
VPP Participation Association.
So this is some basic information. One
the application is filled out, we look at it, we
will not go and visit that company's headquarters
in the State of North Carolina unless they have
two other site projects in place.
Then what we're going to do is we're
going to spend the first day or so, what I don't
like to do, but it's a part of the process, is
crossing tees and dotting eyes, so to speak. I'm
more of a hands-on type of individual, but we're
going to go out there, make sure the paperwork is
in order and then we're going to go to the site
projects.
That's really where you find out what's
going on in the real world and we're going to work
with these site projects that have a good safety
and health process and we're going to give them
recommendations and work with them and learn from
them and give them our expertise to make them
better and have a safer work environment in the
construction industry.
If we approve them at that time as a
Building Star site, the company is allowed to
submit up to three work projects during a calendar
year, so they can give us three during a calendar
year.
Now, unfortunately, you have the other
side of the coin. How do we monitor that in fact
day in and day out they're going to do what they
promise us to do?
What we've committed to do is remove
them from the program inspection, meaning that
OSHA will not show up at their doorstep in a
compliance mode for program inspection.
However, unlike the Carolina Star or
Rising Star, at team can show up unannounced, on a
positive mode, to go in there and to fine tune
things, make a few little adjustments,
realistically, in the real world, I cannot
personally tell you I'm going to go in there and
never find a problem. That's not the real world.
But our job is each time to try and make
it better, so we will go in unannounced and make
sure that indeed they are following the safety and
health processes that the construction industry
has committed to us and doing so.
There will be no monetary penalties
issued. That's how we're going to monitor that
system. Each year the company has to do an annual
safety and health evaluation of all the site
projects in the State of North Carolina and submit
their OSHA data, showing us the injuries and
illnesses on those sites.
We will evaluate that and each year they
can submit up to three new projects. Every three
years we go back and we basically do the whole
thing again.
I'm a firm believer, even our Star
sites, three years is a time where you need to go
back and dust things up, polish things up, fine
tune it a little bit.
But what's exciting about it is when I
was in industry, unfortunately I failed to do what
we've been able to do with a lot of companies in
North Carolina and I experienced at lot of
fatalities, a lot of tragedies, seen a lot of
things and I've been committed to try to do a more
efficient job in the State of North Carolina, so
has North Carolina OSHA.
As a team, there has not been one
company out there that we have not made better
when it comes to safety and health issues and
there should be nothing wrong with that.
What we need is we need to keep those
doors open and the communications open to keep
that partnership going with State OSHA or Federal
OSHA, in industry and the employees, because if we
do -- we'll have our differences, but if we do
work together, in the long run we will make an
effect and reduce injuries and accidents and
that's what I basically came here today to talk to
you about briefly.
I appreciate you listening to me. If
you have any questions, I'll take them. If not,
there's a web site in the information in front of
you, if there's any questions -- does anybody have
any questions? Yes, sir.
MR. BUCHET: Under the Building Star
Program, when a construction applies and they're
in the process and they reach a certain status,
you say you retain the right to show up on-site
unannounced. Does their agreement the you include
the fact that they have to let you on the site?
MR. BOGNER: Did everybody hear that
question? I'm their best friend out there. We
already have gone ahead and we've approved them as
a Building Star site. They know up front that
part of that agreement with me recognizing you as
a Building Star site are removing you from a
program inspection is that we, and we're acting as
the Bureau of Consultative Services, because the
way State OSHA is set up, we have our compliance
mode, we have our consultative services and we
have your education, training and technical
assistance.
I fall under the jurisdiction of
Consultative Services. The only difference is we
will show up unannounced versus announced, due to
the uniqueness of the construction industry and if
they would not let us in, obviously they're not
fulfilling their obligation and we would have to
smile and ask them to withdraw from the Building
Star.
I don't see that being a problem
whatsoever. As a matter of fact, we have had some
instances in the real world, even in the industry,
general industry, with the Carolina Star and each
time they have contacted me, I've talked to the
head of compliance and we've been able to work
close together and it's been a very beneficial
advantage for a company. Does that answer your
question?
MR. BUCHET: Yes. Thank you.
MR. BOGNER: Other questions? Yes, sir.
MR. RHOTEN: You sign these agreements
with the general contractors, correct?
MR. BOGNER: Yes, sir.
MR. RHOTEN: Then does the general
contractor require the subcontractor on these
safety written programs, for example, to have the
same thing in place?
MR. BOGNER: The question is as far as a
general and then the primes, down to the subs.
This is basically a design. Once again, we're not
perfect, we're starting, it's a design for the
general contractors.
There are subcontractors that have come
to me and they say hey, John, we're the little
guy, how are you going to help us out and what I'm
trying to get them to do is more or less make
lemonade out of lemons.
It's easy for me to sit back and say
well, hey, don't do this for a flag, don't do this
because you're going to be recognizes as you're a
Building Star site, do it to reduce injuries and
accidents.
But to answer your question in regards
to Building Star, that general is responsible for
that whole project and site and that means he's
going to be responsible for the subs on that site.
MR. RHOTEN: Well, I understand that,
but in his bid product or in his communications
with the subcontractor does he demand that he has
a written safety and health program or does he
demand that he comes up to the standard that's in
this agreement with you?
I mean, if you've got a site that's a
Star program and a plumbing contractor signs up
that doesn't have the provisions that you want in
this agreement, I guess that's my question, is it
a complete program, I guess?
MR. BOGNER: Well, let's look at the
real world. If I have a Ma and Pa come up here,
father, son doing some sort of work on a
construction site, they're not going to have the
four-inch binders.
Does that mean that they can't perform
that job safely? I don't think so. I think they
can perform the job safely, as long as they
understand the safety and the work practices that
they're going to be responsible for on that site,
that's sufficient, as far as I'm concerned.
MR. RHOTEN: I guess I was thinking more
along the lines of a mechanical contractor that
had 25 employees that came on the site, instead of
a Mom and Pop.
MR. BOGNER: Okay.
MR. RHOTEN: But I guess my point is
you're signing these, is the owner of the
facilities under the participating sites -- it
seems like there's no contractors listed, it's the
sites. Are the owners of the facilities in this
arrangement? Are they brought into it to insure
that the contractors that they hire --
MR. BOGNER: They're going to have to
because they won't be a Star site without that,
but basically, we're not looking at a formal per
se contract. What it basically is is this is a
partnership and it's almost like a handshake,
really.
They're responsible for the safety and
health process on their site. We'll work with
them. We're not going to dictate to them what
each of their subcontractors have to do in their
programs and their policies.
MR. RHOTEN: That's all I'm suggesting.
What you really have then is a program with the
general contractor and whether or not he pushes
that down to the subcontractor is basically up to
him?
MR. BOGNER: Well, if he wants to be a
Building Star site, it has to be pushed down to
the subs because if not, he's not going to be a
Building Star site.
CHAIRPERSON BURKHAMMER: Bill, let me --
I think I can answer the question. One of our
subsidiary companies is a contractor to the Shelby
Plant under COSHA Tacoma.
If you'll notice in the back, they're a
Star site. They're a Star owner at the Shelby
Plant and they've asked all their contracts or
contractual agreements with us state that we abide
by all the rules and requirements of their Star
Program.
MR. RHOTEN: Right.
CHAIRPERSON BURKHAMMER: So in essence,
even though we're not signatory to the Star
Program that they are, we're required
contractually to work under that agreement, as is
all our subs.
MR. RHOTEN: That's my question here.
Are the subs bound by this contractually. They
aren't bound unless the general contractor makes
them bound.
CHAIRPERSON BURKHAMMER: Well, we bind
they contractually.
MR. RHOTEN: I know you do, but there's
a case -- I guess the question is are there cases
here that they aren't bound legally?
MR. BOGNER: No, they're going to be
bound by it. When they bid their job to come in
there, that site general contractor is going to
say hey, this is the way it is, we're a Building
Star site, this is our requirements, you have to
meet these requirements or exceed these
requirements or we're going to have to get another
contractor in here.
MR. RHOTEN: Right. The same
requirements, the written programs and the
training, the whole thing?
MR. BOGNER: Yes.
MR. RHOTEN: All right.
CHAIRPERSON BURKHAMMER: Mr. Cooper?
MR. COOPER: If you hang around here
along enough (inaudible) you will hear some
discussion on proposals that anyone on a
construction site, a worker on a construction site
would have at least an hour of OSHA training to
get on the site.
CHAIRPERSON BURKHAMMER: Steve, they
can't hear you.
MR. COOPER: I have a question for you
here. In your program, in your Carolina Star
Safety Programs, you point out that management
agrees to operate an effective program, meeting an
established set of safety criteria. In that
criteria, is it mandated that the supervisors or
foremen have particular required safety training?
MR. BOGNER: All management, they're
responsible as far as part of the -- if you look
at the whole application in the book here, I
didn't realize there was going to be that much
detail, but there's a section in there that will
spell out management commitment, as far as the
training involving the supervisors, all that
should be spelled out. Yes, they are required.
MR. COOPER: Does it spell out specific
amounts of training?
MR. BOGNER: As far as time element?
No.
MR. COOPER: So in other words, they
could have some minimal safety training on-site
that would meet your criteria?
MR. BOGNER: That's correct.
MR. COOPER: Take it from a guy who has
been around, when I was your age years ago,
running out there also, one of the biggest
problems we have and anyone who knows anything
about construction safety knows that if you have a
safety minded foreman, you will more than likely
have a fairly safe job.
The requirements -- and you also know
that if you are on a job site and the supervisor
-- foreman is the term I'll use, sends out down in
the trench and you say no, then you are terminated
and you know that.
It's the same thing in my business and
all of us who are in the construction industry
here, that foreman has the care, custody and
control of that job because that is the only
person on the job site directly in the work force.
The owner is downtown trying to make
payroll, getting estimates, et cetera and all the
engineers, et cetera, and all the other staff of
the construction company are not right there.
So the care, custody and control of that
job and all the workers goes directly back to the
supervisor and what we have in our industry is a
lot of supervisors, a lot of them from the union
and a lot from the non-union, that are not trained
in specific safety requirements for their skill
talents.
My area is steel erection. We have
foremen in the field that have never read the
steel erection safety standards, the Federal or
State safety standards. That permeates every
trade. What we really need to reduce the
accidents in the construction industry is
requirements that one cannot be a foreman unless
that individual has had specific safety training,
and I say specific safety training, for the skill
attached.
I'm not talking about going to a Seven-Eleven store and getting a ten-hour course and
passing it around and I'm not talking about tool
box safety meetings. Criteria for foremen that
relates to safety and health in that particular
category that the foreman is doing the work in.
MR. BOGNER: You bring a very good point
up, but you also have some issues you've got to
contend with as far as are you going to make it
almost like a CSP or a CIH examination, how far do
you go with the educational levels.
Then a lot of times people go to these
conferences, half of them fall asleep, half of
them come and go and they just get the piece of
paper then they leave and say hey, I'm certified.
I believe that you still -- even though
we do have to do a better job training the
specifics for that industry, as you suggested, we
need to make sure that these people understand
what's going on and you're only going to do that
if you have a system in place to effectively
monitor their knowledge.
It doesn't do us any good to send
somebody to a trenching course, come back and say
they're a competent person and assume that they're
going to be a competent person on that site and
send three people in there and a wall caves in and
kills two people and he says well, I went to
school.
That's where we fail, because of saving
money, time and resources, we don't spend enough
time to monitor how effective the training has
been and how these people are actually
implementing the knowledge that they were supposed
to be receiving.
MR. COOPER: I'm going to respond to
that and say, and I'll be concise, Mr. Chairman,
I'm not talking about being a CSP or PE or et
cetera and I'm not talking about having a safety
director in the field being the foreman.
But I am saying, just in my own personal
opinion, that a foreman should have at least 40
hours of safety training periodically, whatever
that means, once every three years, however, in
that particular line of work that he or she is
doing.
We need -- not you need, not North
Carolina needs but we all need foremen with the
mind set to run a safe job and that mind set comes
from instructing the foremen on the manner in
which the work should be and shall be erected.
MR. BOGNER: You're right. We do have a
lot of companies in the State of North Carolina
that are doing that. I know for a fact like
Monday Industrial Contractors, speaking of the
front line supervisors like you mentioned, they do
go through a quarterly and yearly training with
corporate people and they go to different
conferences and seminars, so you are right.
Because if those people are educated and
trained in safety, health and well-being, they're
the ones that are going to set the tempo and
that's one thing that to me is a little bit more
unique in the construction industry than the
general industry because like in North Carolina,
we have not as many unions as I dealt with when I
was up in Pennsylvania, you have a lot more team
concepts going on.
In the construction industry, you have
to have the key front line supervisor, as you
suggested. The companies that are doing a better
job are the ones that are training their
supervisors.
Do I have that spelled out, as far as in
the detail I basically touched upon as far as the
actual requirements of 40 hours or 80 hours or
what particular courses? That's something that
could come down the road, as we start to fine tune
things.
But when we go in and do that internal
audit and anybody that's from North Carolina, they
know what we're going to try to do out there,
we're going to talk to all the front line
supervisors and make sure we have that mind set.
It may be a recommendation that you're
not reading for Building Star. You might be a
year away because your supervisors are not trained
efficient enough on what their job is doing and
that could very easily be a recommendation.
But I do appreciate your comments.
Thank you.
MR. COOPER: Thank you.
CHAIRPERSON BURKHAMMER: Larry?
MR. EDINGTON: I guess the question I
would have and your most recent comments caused me
to think about it, is for organized work places,
is there any requirement for the involvement of
the workers' exclusive representative in order to
be eligible for participation in a program?
MR. BOGNER: Yes. Most certainly that's
a very big part, I'm a big advocate of that. Any
unionized organization, bargaining agents will be
involved, they will be working with us in
conjunction, that just expands our partnership.
CHAIRPERSON BURKHAMMER: Jane.
MS. WILLIAMS: On --
MR. BOGNER: We currently -- excuse me.
We currently have two unions on our Star sites
with Carolina Star working with the teamsters.
Yes, ma'am?
MS. WILLIAMS: When the inspection team
-- apparent violations that they notice, you said
if they can correct it, you would encourage them
and work with them to correct it or if it couldn't
be immediately corrected, you would have them
notify you as to when the correction was made.
Have you ever had anyone voice a concern
to you about that type of inspection process being
discoverable?
MR. BOGNER: No, I can't say -- really,
right now the way we try to do it is we try not to
fix things, to fix things. We try to find out how
we can eliminate.
See, that's the problem with even
compliance or an audit. Typically, what would
happen is if you look at things, within 18 months
80 percent of those deficiencies will reoccur.
So what we try to do with the Star is to
roll up our sleeves and if we have a problem with
guarding systems, we've gone ahead and made fixed
guards, so to speak, so you cannot remove them and
we've had lubrication outside of the guard, so to
speak, for example.
If there is something that they cannot
fix right then and there, obviously if there's a
hazard, it doesn't mean it's unsafe. And that's
the truth. Just because it's a hazard, it doesn't
mean something is unsafe, it's what's your
exposure.
What we try to do is money or anything
else, they are going to have to contain that, to
make sure no employees are affected to that
hazard, but ultimately it has to be corrected.
If they will not correct it, then we
lose that partnership and we have no choice other
than to refer that as a referral and the way it's
set up is we refer it to Commissioner Payne, he
would write a letter saying please take care of
this, if not, we'll have no choice other than to
refer it then to Compliance. That has never
happened.
CHAIRPERSON BURKHAMMER: Harry?
MR. PAYNE: I think part of the concern
is whether in this intervention strategy we're
building a case against the company and they're
sensitive to that.
We have been very careful not to create
issues. We're not trying to -- we're trying to
avoid liability for the company and I think they
accept it pretty clearly as that.
Thinking about your questions and what
we've been doing, Star is different in that it's
more of a measure of the culture of the work place
and there's no one single measure of that. At
some point it becomes somewhat subjective, after
all of the objective criteria have been met.
Simply that all of your supervisors have
had "x" hours of training doesn't mean that you've
got the culture.
Our experience, with the sites that John
and his team have worked with, is once they get
that culture thing going, they are far beyond
anything we could ever ask of them anyway.
It's that one hump they get over to
where it's something you've got to do, something
you might want to do, to where this is a core part
of our organization.
Our experience is once they get there,
we're basically out of the process, except to be a
resource on questions, to be a second set of eyes.
In defining the problem with the
moveable work place and the challenges in the
construction industry, there's no way to describe
in any coherent way the challenges one will
encounter, so rather than say you've got to do
this this way and that that way and have this
training, we've tried to look at those cultural
indicia, whether the commitment is there.
What we find is once that commitment is
there, the other questions quickly go away.
CHAIRPERSON BURKHAMMER: Other
questions?
MR. RHOTEN: You may have answered this,
but how many contractors, building trades
contractors, are signed to this agreement now or
under this agreement?
MR. BOGNER: Right now I've got three
major contractors that are working under an
application, one might be back on my desk right
now.
MR. RHOTEN: Three building trades
contractors?
MR. BOGNER: Right now.
CHAIRPERSON BURKHAMMER: That's total?
MR. RHOTEN: Back here it's all sites.
All these sites are owner sites, so the sites have
been approved, so if a contractor goes on that
site, does then the owner say okay, you're going
to fall under the Star Program when you come on
the site?
MR. BOGNER: Yes.
MR. RHOTEN: So if he gets the bid, he's
almost pre-approved?
MR. BOGNER: No, he works under the
owners.
MR. RHOTEN: So the owner is the one who
is really the push behind this, not particularly
the contractor. It's the owner that's going to
have the hammer.
MR. PAYNE: I think if you go to work at
Occidental Chemical, you've got to be really,
really -- have a good safety record, have a good
-- show to them all that stuff. That doesn't give
you Star as a company. It gives Oxychem Star as
controlling their work site.
On new construction it's a little bit
different, where the contractor is in essence the
owner.
MR. RHOTEN: Right, but in most cases,
under this program the owner is the one -- the
site is determined that the owner has put together
a program that he will then require that the
general contractor adhere to, which then makes the
general contractor a party to this agreement.
MR. BOGNER: That's right.
MR. RHOTEN: So it's aimed at the owner
community from the top down as opposed to the
general contractor.
MR. BOGNER: But I have also had
contractors that before we designed the Building
Star have gone through this process knowing that
they couldn't be a Carolina Star site, but when
they put their bid in, they basically put the bid
in saying that hey, we follow all the procedures
for Carolina Star, even though they don't qualify
since they were a contractor, because we just had
-- Building Star just came about in October of
last year, so it's fairly new, as far as -- but
what I'm saying is in the bid process, when they
went into an employer saying as far show me your
safety and health issues, they're able to say hey,
look, we're already following a lot of these
criteria and guidelines and they felt that it's
helped them get some bids.
MR. RHOTEN: So there's no doubt that
the owner looks at the past performance of the
contractors that he hires on that plant?
MR. BOGNER: Most certainly.
MR. RHOTEN: Is there a certain line
that they're unacceptable? What experience level
would they be that they would be unacceptable?
MR. BOGNER: You know, it's going to be
harder, when we're up in the mountains and we
don't have -- you've got a company that's it out,
it's not like a metropolitan city where you have a
lot of resources, it's a little bit tougher.
MR. RHOTEN: Sure.
MR. BOGNER: So what they have to find
out is they have to put on a lot more training and
education themselves because where else are they
going to get the workers to do the job.
So the key is, like Mr. Payne says,
we've got to assure ourselves that the site owner
has the control and has the resources to at least
assist companies that might not have the knowledge
that they need to have.
There's not necessarily a dry, cut line
because if I'm up in Hendersonville, up in the
mountains, and I've got a plant out there and I
have nobody else around, I can't be taking -- I
don't have the resources, so I can't draw a line,
other than the fact that they have to do the
education and training of the contractors coming
on their site.
They had a roofer contractor and the
individual had nothing. They'd been doing it
since 1905, passed on by three generations, and
what we did was we explained what our concerns
were and what the company did was work with them
to buy new equipment, worked with them on training
so they could perform that job adequately, because
they were not allowed on that site the way they
were performing that job.
MR. PAYNE: I think, Mr. Chairman, if I
may, we're mixing two areas. One is the VPP
current Star site that we were doing previously,
which requires not only control of the work site,
but control of all subs, all temporary workers
that come on the site.
CHAIRPERSON BURKHAMMER: Right.
MR. PAYNE: The construction industry
who are not permanently located on a site wanted
to recognize their excellent wherever they went,
not just when they went on a Star site, so that
you weren't sending your best crews to the Star
site and somebody else elsewhere.
What we wanted to look at is overall
excellence of that contractor and their practices
and in that is the control of any subs they might
have.
Basically, if you don't manage your
subs, if you do not insist upon excellence, you
won't get to be a Star site. You can't contract
away your ultimate responsibility for everybody
who works on that site.
CHAIRPERSON BURKHAMMER: Any more
discussion on this? Steve, do you have anything
you wanted to add?
MR. COOPER: Well, I can tell you that
I've worked on a number of these sites and
Mr. Rhoten, if you go through and you look at the
fact that this program was driven by user
councils, if you look at clients, Celaness,
Monsanto, Kimberly Clark, Oxychem, GE, they were
leaders in the forefront of this and then as a
contractor working for one of these facilities,
they put you through the meat grinder, crossed
every tee, dotted every eye.
In addition, I can remember when we
worked at Monsanto, there was eight hours of
training for front line supervisors and an
additional four hours for every employee that
worked at the site, plus daily safety meetings.
MR. RHOTEN: The questions I asked
weren't to criticize the program, I just wanted to
understand it.
MR. COOPER: I understand, but there are
some contractors in the Building Star Program at
this time and there's others that have expressed
an interest in are going through the application
program.
These guys have done a great job.
They've stepped out of the box and are trying to
make a difference, recognizing that it's a mobile
work force and are here today and gone in a short
period of time.
CHAIRPERSON BURKHAMMER: Bob?
MR. MASTERSON: Actually, I'd like to
compliment the State. We recently had an
inspection on one of our job sites and even though
we're not in the Star Program, they did a review
of our site and afterwards sent a letter back to
my job site supervisor basically patting him on
the back and complimenting him on what a good job
they had done.
Now, I can go out there all day long and
give out incentives, but that simple little letter
that said hey, you're doing a good job went an
awful long way to bring the whole mind set of
safety up for my people.
MR. PAYNE: Thank you.
CHAIRPERSON BURKHAMMER: That's good.
We work in a lot of states and I, too, would like
to congratulate Harry on the North Carolina
program.
Of all the states we work in, I think
we've had some situations where OSHA has come out,
both Federal and State programs, and we had a
situation last year at one of the plants in North
Carolina where we had an unfortunate incident that
one of our subsidiary companies was involved in.
Harry's team came out to the site and
instead of the typical who shot John scenario that
sometimes occurs with that, it was more like a
partnership agreement, where all the parties
involved, the owner, us, the OSHA people from
Harry's shop all worked together to try to
determine -- because it was a very unique
situation that occurred, to determine what the
root cause was and work together as a team to
solve the problem and try to find out what
happened rather than trying to shoot somebody to
give a citation or collect some fines.
I think that's a real tribute to Harry
and the team work that he's created in North
Carolina OSHA and I'm pleased that we're working
in your state.
MR. PAYNE: Thank you.
CHAIRPERSON BURKHAMMER: Bob?
MR. MASTERSON: What has become well
apparent to me is that in North Carolina --
CHAIRPERSON BURKHAMMER: Can you speak
up, Bob?
MR. MASTERSON: What has become apparent
is that in North Carolina they have moved the
concept of safety well beyond just the Star
Program.
This whole process that they're looking
at has gone down through their entire compliance
staff, not just consultation, and I think that
they're winning a lot of battles that they would
have lost if they had only tried to use a bat.
CHAIRPERSON BURKHAMMER: I agree.
MR. BOGNER: Thank you very much.
CHAIRPERSON BURKHAMMER: Thank you very
much, we appreciate you. It's 11:20, let's try to
get a couple more workgroup reports. Larry,
Crane?
|
|
Subpart N - Cranes Workgroup Report
|
MR. EDINGTON: Thank you, Mr. Chairman.
The Subpart N workgroup met a few weeks after our
last meeting in Chicago, we met again in late
March.
As has been the case for our past
several meetings, we've been meeting all day. At
our last meeting, our activities involved the
following, and let me first say that we continue
to have excellent representation from sort of all
sectors of interest in the workgroup meetings,
whether it's the manufacturers of cranes, owners
of cranes, users of cranes, operators of cranes,
we still have everybody in the room, which we take
to be a very good sign.
A couple things happened. First and
foremost, we had -- as the Chair knows, some
questions had arisen with respect to the charge of
the workgroup, in particular was the workgroup
charged with doing, if you will, a complete
revision of the subpart. That clarification was
provided by the Directorate, I think that question
has been answered to the satisfaction of all
participants and we're moving forward accordingly.
Also, what was extremely helpful is we
had a representative from the Solicitor's Office
do a couple things. One, just do a review of the
rulemaking process, to make sure that we were
touching all the bases we needed to touch.
And two, as one of the things we had
talked about in terms of perhaps a simplistic
approach to updating of the subpart was to take a
look at bringing forth the current NTB 30.5
references.
What was pointed out to us is we needed
to gain a better understanding of what, if any,
employer obligations might be changed between
changing the 6(d)(8) reference to a 94 reference.
We are in the process now of attempting
to do a side-by-side comparison of the two, to
understand what additional employer obligations
might be changed. What we thought was a simple
reference change may in fact impose additional
employer obligations and we want to make sure we
understand that.
Also, we have reached out -- the
workgroup recommended that I do it and I have done
it, reach out to the main (b)(30) committee for
some assistance because there are several areas of
the industry that we don't have representation on
the committee yet. Cranes comes to mind, gantries
comes to mind, maritime, working on the water
comes to mind.
I have talked to Paul about that, he has
agreed to -- at their last committee meeting he
was going to request additional representation. I
know that that has happened yesterday. I was
contacted by a representative and I don't know
that I have their title right, but the drill shaft
folks and the caisson business, their association
has indicated an interest in participating, so
we've got them on board.
We'll be meeting again either the 23rd
or 24th of this month, that's still up in the air.
That will be finalized by the end of this week.
As of yesterday, the availability dates for
workgroup members were sort of neck and neck, but
we'll have that notice out by the end of the week.
CHAIRPERSON BURKHAMMER: Where do you
plan on meeting?
MR. EDINGTON: We'll be meeting here in
Washington.
CHAIRPERSON BURKHAMMER: Thank you,
Larry. Any comments or discussion on Larry's
report on cranes?
|
|
(No response.)
|
CHAIRPERSON BURKHAMMER: Thank you,
Larry. The next report, Process Safety
Management, Owen isn't here, so I'll kind of cover
for him a little bit.
|
|
Process Safety Management Workgroup Report
|
The committee met, had a good first
meeting and they decided basically, after much
discussion, to wait for the official release of
the Notice of Proposed Rulemaking from OSHA and
once they get the Notice of Proposed Rulemaking on
the PSM standard, the committee will meet again
and have a document at that time to work with.
That's the status of that committee.
Safety and Health Program Standards and
Training is a combined committee, Steve and Bill
Rhoten.
|
Safety and Health Program/Training
Workgroup Report
|
MR. CLOUTIER: Mr. Chairman, the Safety
and Health Program/Training workgroup met on
Tuesday, May 2 at 8:30 in the morning. Both co-chairs, myself and Mr. Rhoten, were present, there
were 11 stake holders present. We went through
the welcome, the introductions and all parties
participated in the workgroup discussions.
It was agreed that the safety and health
programs are on hold until we receive additional
information from (inaudible).
Our primary discussions were spent on
the training issue and there was lots of
discussion. The workgroup agreed that there's a
need -- and it's been noted and spoken here today
again, a need that we require safety training
prior to workers coming into the construction
industry.
There was additional discussion on the
OSHA ten-hour hazard awareness program, its
effectiveness, its usefulness, whether we need to
add or delete or how we can improve that.
Additional comments were covered for the
need that OTI, the OSHA Training Institute should
be able to provide instruction with additional
training aids to back them up. If you go to OTI
or take a 500 course around the country, you
should be able to come home with some workable
documents, more than what we're receiving from
OTI, to present those classes.
Camille Villanova from DOC provided the
workgroup an opportunity to look at a large
notebook full of outreach documents that could be
used to supplement instructor's training documents
as they come out of OTI and there were positive
comments there.
An additional topic that came up is
talking about portability of training and
portability in documentation of the training and
issuing of pocket cards. If you remember, you go
to the Institute, you can come back, you can teach
your courses, you have a stack of cards almost
that you issue with people's names and the date
they took the course.
We think there's a better way of doing
that and at the last meeting that was held in
Chicago, per Mr. Rhoten's discussion, Joe Durst
talked about the possibility of numbering these
cards, there's got to be a better tracking system,
is there an 800 number you call, is there a
scanner where you swipe your card through.
One of the stake holders there had a
sample, a little credit card that had an embedded
chip in it where you could track that information,
so we know that there's various additional methods
and means to track the training.
There was discussion about the Job Corps
training programs that are ongoing around the
United States and the high frequency of accidents
that occur on their sites. The workgroup
discussed a good viable means and methods to
improve and reduce the accident and injury rates
of the Job Corps would be implementing that ten-hour program for those folks.
It was noted during the discussions that
NIOSH is in the process of developing individual
training modules for secondary schools, secondary
education to improve that process.
Many of us, as we grew up in our careers
and I can remember back when I was in high school
you could actually take shop courses and we
learned about eye protection, not wearing jewelry
and rolling up your sleeves and all the
appropriate things that would work and not work in
whatever you were doing. A lot of those classes
have gone by the wayside.
Further discussion included, as I spoke
earlier, about developing and considering other
methods and ways to look at distant learnings, PC-based training, CB training, other outreach
programs.
Finally, it was agreed by the workgroup
and there was a unanimous decision there to bring
a motion to ACCSH and I'd like to bring it here
today, but vote on it tomorrow, Mr. Chairman, from
the workgroup and our work product is that the
Department of Labor and the OSHA Agency endorse a
concept that requires every construction worker to
have a ten-hour card or equivalent.
We know when we present that to the full
ACCSH and to the various stake holders here, we
recognize that it's going to open up areas of
additional discussion, is there a phase in period,
is there any reciprocity, can you define
equivalent, there's no trade associations, there's
no unions, there's OTI that has fine training
programs or equivalent that's out there.
But the point is we've got to find a way
to get the training to the worker prior to coming
to the site.
There was also some additional
discussion about well, if the guy comes to work or
the lady comes to work, could we assign them to a
card-carrying member who has had the training for
a short period of time until they can participate
in the training, so there's another round for
thought.
But in the meantime, the motion to ACCSH
would be that the Department of Labor and OSHA
endorse a concept that requires every construction
worker to have a ten-hour safety training card or
equivalent.
With that, we closed the meeting and I'd
like to respectfully submit that as a co-chair and
I'll let Mr. Rhoten give any comments at this
time.
CHAIRPERSON BURKHAMMER: Mr. Rhoten?
MR. RHOTEN: Well, I'd just like to
second that motion. It's been a long time that
we've discussed this whole issue and I think
personally that that ten hours of training will
accomplish more to protect workers than any other
item that's in that program standard that's
proposed.
I think that -- in the long run, if you
can get this accomplished and if it takes three
years or five years, I really believe if you get
this accomplished, it will do more to protect the
worker on the job site than anything else we've
discussed today, for sure.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Rhoten. We have a motion and a second on the
floor for discussion. Mr. Masterson?
MR. MASTERSON: We're going back to the
same old story and though I have a lot of respect
for Bill, I don't think the OSHA ten-hour program
is really going to protect that many people.
It gives them training that you can get
out of any book, it's very, very different from
experience. I do believe training is required, I
do believe experience is required, but requiring a
card I don't think is even close to being doable.
I heard a lot of references to OTI. OTI
has four trainers assigned to construction, there
is no way they can provide enough training and
enough authorized trainers out there that will do
a good job and consistently deliver the same
message, as well as tailor those programs so it
fits the industry of construction that the
individuals are work in.
The endorsing concept I'm having a
little bit of trouble dealing with, what do you
mean by a "concept"? OSHA has standards, I've
never heard of an OSHA concept. Help me with
that.
MR. RHOTEN: Well, I don't know if
it's --
CHAIRPERSON BURKHAMMER: Bill, would you
like to address that?
MR. RHOTEN: I don't know if it's OSHA's
concept, I think it can be our concept. We're not
OSHA, for starters. You talk about experience on
the job site and that's how you get there, a lot
of people get killed while they're getting that
experience on the job site.
Right now across the country you've got
these temporary employment agencies that are
putting people out on job sites that might call
themselves a plumber or might call themselves an
electrician.
He's an electrician because the employer
is going to give him money for doing some wiring,
he's not an electrician. He's got no safety
training.
I could go on and on with this subject,
but the bottom line is there's really no down side
for anybody if we head off in this direction.
There shouldn't be any cost item to the employer
because what you would do is make it a pre-
requirement of employment and my understanding
under the Wage and Hour laws, the employer is not
required to provide that training.
I can tell you that I don't expect this
thing to happen tomorrow, if it happened in five
years or seven years. I know that the OSHA
Training Institute and the colleges out there now
and the consortiums that are being built can in
fact furnish enough trainers to get people
trained.
It's no mystery to get somebody through
a ten-hour class, they're doing it in every other
field in the country.
But if we don't take the position that
this needs to be done as a minimum, the training
is not going to get done. Nobody -- it's just not
going to get done. What's going to happen is
we're going to continue like we are now, where
some companies have a 15-minute indoctrination,
maybe once a week they'll have a tool box meeting,
maybe the foreman that's giving the tool box
meeting won't even know how deep a ditch has to be
before it's required to be shored.
I personally again believe that this
would be one of the best things that we can do as
a committee, is to head off in this direction and
then work out the problems that might occur
getting this implemented.
You know, it says ten-hour OSHA card or
equivalent. There's going to be other problems
associated with getting this to the end result,
but I think that all those problems can be dealt
with over time.
CHAIRPERSON BURKHAMMER: Mr. Buchet?
MR. BUCHET: Mr. Chairman, thank you.
On the issue of delivery of training, it
practically will take some time to reach the vast
numbers that we're talking about in the
construction industry.
That certainly is not the same thing as
it's impossible or unadvisable. The OTI has a
limited number of instructors, the ed centers that
fall under OTI have a limited under of
instructors, but they produce through the OSHA 500
classes many, many instructors who are capable of
delivering the OSHA ten-hour construction outreach
program.
Everybody calls it the OSHA ten-hour, it
is in fact five hours of required training and
then a huge list of topics that you can tailor to
the particular industry, job, project, site,
population you're doing the ten-hour training for.
The issue of certification I think is
going to take some work. What the current looks
like and the fact that it's trackable and it has
some ability to call up and say well, here's one
that looks a lot like a Xerox copy, did this guy
really go through the course, that's another
thing.
But the delivery of training simply will
be to shift some resources and provide the
training and the National Safety Council is happy
to help provide some of that as part of an ed
center, as many other organizations in the room
are happy to provide that.
CHAIRPERSON BURKHAMMER: Mr. Edington.
MR. EDINGTON: Thank you, Mr. Chairman.
I guess I'd say I often have the good fortune to
spend time with Mr. Rhoten outside of the settings
of this committee, in various other venues and any
of us who have spent any time around him have been
subject to hearing about his concern and strong
belief in the need for ten-hour training.
For quite some time I was beginning to
wonder whether or not Bill's thoughts on this were
falling on deaf ears. I recently learned in fact
that it certainly would appear that his voice has
managed to reach across the oceans, when I learned
that Malaysia has now implemented mandatory
training requirements for their construction
workers, very much along the lines of what he's
been advocating for so long.
When I heard that, I said to myself, I
said you know, I said, if you can figure out how
to do that in a situation that's as complex as the
construction market is in Malaysia, we damn well
ought to be able to figure how to do it in the
United States and I fully support the motion.
CHAIRPERSON BURKHAMMER: Ms. Williams?
MS. WILLIAMS: Thank you, Mr. Chairman.
I would like to go on record stating that this is
long overdue. I comment the committee for
bringing it to this committee.
I certainly hope we all would endorse it
and it is doable. I can tell you right now in
Arizona in one year we have trained over 10,000
people, construction workers, before they could go
onto very specific sites.
It can be done. The trainers are
qualified, they brought them in and it was
accomplished. If the owners and the people
require it, it will get done and it also is a
caveat to be sure that we save a heck of a lot of
folks that are coming on our sites right now that
have zero training.
CHAIRPERSON BURKHAMMER: Thank you. Mr.
Cooper?
MR. COOPER: If you've known Bill Rhoten
as long as I have and you take a look at him and
see that white hair over there, you probably can
figure out he's probably been in Malaysia
recently.
The ten-hour program, if you look in the
want ads, you will see want ads for people to come
and work for your organization, but you have to
have your driver's license. You mentioned the
temporary employment agencies. There's some
estimates that say that 20 percent of the
construction workers in this country right at the
moment, and of course we have good economic times
right now, are from temporary employment agencies,
20 percent.
So therefore, as a temporary employee,
you go to the agency and you may be put into
construction or you may be driving a truck
somewhere that day.
I fully support the ten-hour program for
construction workers across this nation and it's
high time to push this, it's high time for OSHA to
accept it.
Keep in mind, this is not necessarily by
any means borne by the employer. To get the job,
you need to get the credentials of ten-hour. To
drive to work, you need to get your driver's
license. It's very minimal for our industry to
provide and to insure that this is done.
If we can't get this done, I don't know
why we're into some of the other issues that we
are into in these work shops.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Cooper. Mr. Masterson?
MR. MASTERSON: First off, I don't think
anybody at this table objects to training and
knowledge. What I'm objecting to is a requirement
that it be a ten-hour card.
The OSHA ten-hour program right now, as
it exists, even using the five hours and
electively going to the other modules, does not
meet my needs or my industry's needs and to let
those people walk onto a site and assume that
because they've completed that course that's going
to make them safe, that's the equivalent of saying
you're willing to get on an airplane with a pilot
that has never been in an airplane, just a
simulator.
CHAIRPERSON BURKHAMMER: Mr. Cloutier?
MR. CLOUTIER: I would remind this
committee if you look at the motion, it talks
about a ten-hour card or equivalent. We
recognized at the workgroup that we open up a can
of worms.
For many, many years, this advisory
committee and for the members that are here, we
have discussed this, it's come up, it's gone down,
it's come up and we still see our accident and
injury rates in some areas of the country that
continue to go down, other areas that continue to
go up.
You read the trade publications, you see
the evening news, you see the morning paper, we're
still having accidents and injuries throughout the
business.
The workgroup's feelings was it's time
that we get off dead center, push the issue and
work a way, find a way to make it happen.
We threw the ten-hour card out there
because it's something that's recognized by the
Agency and many of us have gotten a lot of mileage
out of it.
There's many trade organizations, labor
organizations, third-party vendors that provide
outstanding training. We just feel if you're
going to be in the business, you need to have some
sort of training and we're all going to win.
Employees are going to win, management
is going to win, the customers are going to win
and we're going to reduce the carnage that goes on
in this country every day.
I think it's time for this Committee to
get off dead center, make a statement, push it to
the Secretary, Assistant Secretary, get the
resources assigned and then work out the trials
and tribulations.
Sitting back and doing nothing is being
a bunch of ostriches and sticking your head in the
sand and it's time we move forward.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Cloutier. Mr. Rhoten?
MR. RHOTEN: I just might mention too
that I don't particular agree that if you went
through the ten-hour course anybody could consider
that guy an expert on safety or that he's all
safe. He naturally has to be trained on the
particular things on his job site.
But that ten-hour course is basically
made up of a 30-hour curriculum that you can pick
and choose from, so hopefully, most crafts will be
able to pick and choose the ones that they want to
use, that will fit their circumstances.
You know, it's been a voluntary program
since 1972, I think, and I think the last few
years -- a few years ago they were giving out
10,000 or 12,000 cards a year, I think they're
doing now 200,000 plus cards a year and that's
been because of, to a large part, an industry
demand.
I think that OSHA and we need to get the
message out to the owners of the facilities that
hire our contractors that all they really have to
do to get personnel on their site with ten hours
of OSHA training is just say that's what they want
and then we'll do it.
It's been happening all over the
country. If an owner of a facility says look, six
months from now if you, contractor, come on my
facility, I expect that all your employees have
had a minimum of ten hours of OSHA training and
that OSHA card, which gives it in fact -- whether
you might not like the curriculum or not, it was
very well designed, it gives it credibility.
Those 30 hours that were put together by
OSHA years ago and changed and modified, they
weren't just thought of lightly.
But the point is if we don't go in this
direction now -- this might take five years to get
there, but if we don't start, we're never going to
get there and this is the time to start.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Rhoten. Mr. Devora?
MR. DEVORA: Thank you, Mr. Chairman. I
also have no problem with endorsing this concept.
I think the idea that the OSHA ten-hour card is
necessarily the delivery system might be my only
problem with the motion.
I think that's something that we're
hanging our hat on, but whether it's the ten-hour
OSHA card or whether it's an in-house training
that you've been doing on a regular progressive
basis where you can monitor that training and in
your mind is more or as effective as the OSHA ten-hour card that you take one time, whether there is
or not, that's another portion of the delivery
system.
I would agree with the endorsement of
the concept that there be some verification of
training. I just don't know if the OSHA ten-hour
card is that delivery vehicle.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Devora. Mr. Buchet?
MR. BUCHET: Certainly there's some
consideration when you think of overlaying an OSHA
ten-hour on an already existing program that is
serving part of the industry's needs.
One of the things I think we learned
from OTI is that they are almost infinitely
approachable and they are willing to look at your
curriculum and see if you are doing enough so that
it would meet the criteria for an OSHA ten-hour,
in which case you might be able to do a
residential OSHA ten-hour in Georgia that was
different than a residential ten-hour in
California and have both of them end up being
suitable to internal purposes, as well as being
able to issue that passport.
If the design of this becomes a passport
that allows a worker to go around the country
saying I've actually got this and it can be
verified and it's proven, then all of a sudden we
free up a lot of people to do a lot of work in an
industry that right now has real problems managing
its resources, the workers.
I think there could be some
investigation, as to what modules need to be
tacked on to suit the needs of particular parts of
the industry and will satisfy OTI as a basis for
the ten-hour.
I think it's key to realize that the
ten-hour is only the minimum. There is all sorts
of other training required for site-specific
hazards that will still be required no matter
whether they have the ten-hour or not, but the
ten-hour will be, as Mr. Cooper suggests, the
driver's license.
You will know from that certificate that
the person comprehends some of these basic items.
One of them may be the language that it was taught
in and then it should make the secondary the site-specific should be able to build on that platform.
Thank you.
CHAIRPERSON BURKHAMMER: Mr. Rhoten?
MR. RHOTEN: I agree with the previous
speaker, that maybe the curriculum could be
changed to meet whatever is necessary in
particular situations in residential construction.
But I think the key reason that the OSHA
ten-hour card is what should be used as the
vehicle to accomplish what we want to do is
because the instructors are in fact certified.
The instructors go through the OSHA 500
course, they in fact are then qualified and
authorized to sign a list and send to the
Department of Labor that these people have taken
this course.
Not too many instructors that I know --
I don't know any that are going to falsify one of
those courses. That's not going to happen. But
if you get outside of that parameter and decide
that a contractor can certify his own people, then
I think we're going to lose what we're after,
which is to really verify that the guys have the
training.
I can't think of a better vehicle to do
it. I'm not suggesting that some reputable shops
wouldn't hire a safety director and he could teach
these guys without the OSHA 500 credentials and
the training might be very well as well.
But I can tell you across town there
would be somebody that wouldn't do that and
there's got to be some kind of credibility, if we
head down this direction, to verify that the
training actually took place and that's why I
suggest the OSHA 500 instructors.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Rhoten. Ms. Williams?
MS. WILLIAMS: Mr. Chairman, I just
wanted to add in our discussions I was going to
mention what Bill just did and I totally agree
with his statement.
With the OSHA ten-hour, looking at it
from the employee's perspective, so many training
processes do not tell an employee what his rights
are, that he can call OSHA or that he has other
alternatives to him in the field.
He doesn't even know the hazards and
I've seen that, so I think there's a distinct
advantage to the OSHA ten-hour, to insure we are
allowing these new folks to know that they do have
rights and that they can call when they are not
being subject to the proper safety performance.
CHAIRPERSON BURKHAMMER: Mr. Devora?
MR. DEVORA: I guess my point is not so
much the verification of the authenticity of the
ten-hour card, but I guess I'm talking about
monitoring the effectiveness of that training.
There really is, after the ten-hour
card, other than if you do it in-house, I don't
know how else you can monitor the effectiveness of
the training or monitor the effectiveness of the
trainer that actually provided the training.
The only way I can do it, using the
driver's license analogy, is if you have a
driver's license, that doesn't mean you can read
all the traffic signs in Mexico if you're driving
or vice-versa and I think that the delivery system
and the effectiveness has to be monitored.
I'm not really concerned about the
verification of whether they have the training or
not, that's society, if somebody is going to
falsify it, they're going to falsify it.
MR. RHOTEN: I hope that you'd go to
jail for it.
MR. DEVORA: I hope he does, too,
absolutely.
CHAIRPERSON BURKHAMMER: Mr. Buchet, I
would like to join with Mr. Devora in offering an
amendment to this motion requiring tri-annual
refresher trainer, which would solve his problem.
MR. BUCHET: I don't have a problem.
MR. RHOTEN: Again, I don't expect that
this is going to be the perfect system, but
there's no system now and it well might be that
there's some instructors out there that are going
to be maybe not the best instructors in the world,
but sitting through the class with the right
curriculum, by accident to worker is going to pick
up information that could save his life.
CHAIRPERSON BURKHAMMER: Mr. Buchet, was
your comment on the amendment a motion to amend or
a dream?
MR. BUCHET: It certainly was a dream
and it was offered to discuss the amendment. The
serious point amount monitoring the effects,
downstream effects, I guess they're somewhat
analogous to the driver's license and that is once
you learn the basics, the proper performance of
that is reinforced routinely by tool box talks,
job safety meetings, going through the other
training.
It may not be necessary for the ten-hour
to have a two or three-year refresher. It might
be nice, but it may not be totally necessary.
CHAIRPERSON BURKHAMMER: So are you
making a motion to amend?
MR. BUCHET: No, Mr. Chairman.
CHAIRPERSON BURKHAMMER: Thank you.
MR. COOPER: Mr. Chairman?
CHAIRPERSON BURKHAMMER: Mr. Cooper.
MR. COOPER: I support Mr. Buchet's
option to withdraw that amendment.
CHAIRPERSON BURKHAMMER: I deeply
appreciate that, thank you. We have a motion from
a standing workgroup, we have a second. Mr.
Cloutier, would you reread the motion one more
time?
MR. CLOUTIER: The motion is for the
Agency to endorse a concept that requires every
construction worker to have a ten-hour card or
equivalent.
MR. RHOTEN: An OSHA ten-hour card.
MR. CLOUTIER: It should be a ten --
MR. RHOTEN: OSHA ten-hour card.
Department of Labor, OSHA ten-hour card.
MR. DEVORA: So we're amending the
motion, Mr. Cloutier, to read what?
MR. RHOTEN: I like it this way. The
Department of Labor, OSHA card.
MR. BUCHET: I believe the formal title
is OSHA ten-hour construction outreach program,
but we need somebody to grab the program document,
which is about ten pages.
CHAIRPERSON BURKHAMMER: For motion
purposes, I think we all understand what the
reference is for when we say OSHA ten-hour card.
MR. RHOTEN: Because later we got that
word "concept" in there, we can change it all
around.
CHAIRPERSON BURKHAMMER: So if you would
add the words to the motion "have a" and insert
"OSHA," I think that clarifies for voting purposes
what --
MR. BUCHET: Perhaps add the word
"construction" because there is a general industry
outreach ten-hour.
CHAIRPERSON BURKHAMMER: Well, we have
construction worker. I would not assume that a
construction worker would take the general
industry ten-hour course.
MR. BUCHET: Depends on the trade. Some
people work general industry in a shop and come
out on the project to install something and they'd
be well-advised to take both courses.
CHAIRPERSON BURKHAMMER: Mr. Cloutier,
would you amend --
MR. CLOUTIER: I will reread the motion.
CHAIRPERSON BURKHAMMER: Thank you.
MR. CLOUTIER: Endorse the concept that
requires every construction worker have an OSHA
construction ten-hour card or equivalent.
CHAIRPERSON BURKHAMMER: Does the
seconder agree with the change in the motion?
MR. RHOTEN: Yes.
CHAIRPERSON BURKHAMMER: Thank you.
MR. RHOTEN: It's a pleasure to second
that motion.
CHAIRPERSON BURKHAMMER: Thank you.
Does everybody understand the motion as amended?
Even though Mr. Cloutier asked to vote tomorrow, I
would like to vote today because I will not be
here tomorrow.
MR. RHOTEN: Call for the question, Mr.
Chairman.
CHAIRPERSON BURKHAMMER: Thank you very
much. Call for the question. All in favor of the
motion as amended, signify by saying aye.
VOICES: Aye.
CHAIRPERSON BURKHAMMER: Opposed?
UNKNOWN: Nay.
CHAIRPERSON BURKHAMMER: Very good.
Motion carried.
What I would like to do now that the
motion is carried is return this motion approved
to the workgroup for further analysis, study,
clean up, change, fix, add, work with the other
concepts that you mentioned above, into the PC-based training, CD ROM training, different aspects
of how you can do it so we can give OSHA a more
fully defined program rather than just a
statement.
Thank you very much Mr. Cloutier and Mr.
Rhoten.
MR. CLOUTIER: Mr. Chairman?
CHAIRPERSON BURKHAMMER: Mr. Cloutier?
MR. CLOUTIER: I just wanted to thank
you, Mr. Chairman.
CHAIRPERSON BURKHAMMER: Fall
Protection, Mr. Masterson.
MR. MASTERSON: Felipe, do you want to
take the lead on that?
CHAIRPERSON BURKHAMMER: Mr. Devora.
|
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Fall Protection Workgroup Report
|
MR. DEVORA: Sure. Fall protection has
been meeting since I guess last October, a little
bit before that, actually. The docket is actually
closed on comments, however we were still taking
comments for our program, to give ACCSH.
However, for purpose of information, it
was pointed out to us yesterday and then verified
here a minute ago when I got the copy of the new
agenda, that this fall protection ANPRM is now on
the long term action agenda here and there is no
-- the next action is undetermined and the
priority is substantive and non-significant.
So having said that, I'll go on with our
report here. We have compiled all the comments
that we've taken over the last year or so on the
ten different issues. This is one of those
octopus type things we've been asked to comment on
because each one of these ten questions with
regards to fall protection have subsections in
them, so it's very voluminous and there's a lot of
comments.
So I think what Bob and I have struggled
with a little bit is what form we're going to
bring this motion or whatever to the ACCSH
Committee and I think what we've talked about is
we're going to get these -- we're actually in a
binder form, Bob has agreed to do that for me here
locally and we'll be getting each of you a copy.
It will be mailed and what we'll ask you
to do is go through the ten questions and at your
own leisure, go through the subparts and then I
guess sort of a different approach would be give
us some of your input on where we're at.
We had some consensus on a lot of issues
in the workgroups, however I will -- and Bob, you
can add to this, to be honest with you, there were
certain expertise in different workgroups.
We had one workgroup where it was mainly
residential folks and those comments are in there.
We had one group that addressed precast, we had
another group that addressed drill shaft, so we
had a wide variety of comments.
These comments are in the docket and
they will also be in this brochure that we're
sending out to you, some of the comments.
Having said that, we'll get those to you
before the next meeting and have you -- give you
time to understand and study the comments and then
I guess Mr. Chairman, I would ask for some help
and I'll be containing you about what form we're
going to put this motion in because like I said,
it's ten questions with subparts in them and it's
going to require some study and some thought about
how we're going to -- are we going to vote on each
ten of them, are we going to vote on each subpart
of them or how are we going to do that.
If anyone else has any thoughts on that,
we would like -- or do we just give you the
product and say here's the product and we write an
opinion and we send it to OSHA, we vote to send it
on to OSHA with those comments.
CHAIRPERSON BURKHAMMER: Is this based
on the form that you all sent out, the survey?
MR. DEVORA: Well, that survey was not
necessarily a survey, it was just a repetition of
the ten questions in The Federal Register.
CHAIRPERSON BURKHAMMER: Okay. So
you're going to bring a report back covering the
ten issues?
MR. DEVORA: Yes. It will be a report
and it will be the comments attached to the report
on those ten issues.
CHAIRPERSON BURKHAMMER: Then I would
suggest you have a motion for each issue because
they're different.
MR. DEVORA: For each one? And then
there's subparts to each question.
CHAIRPERSON BURKHAMMER: The subparts go
with the question, so you'd have one motion for
the question and subparts.
MR. DEVORA: Okay.
CHAIRPERSON BURKHAMMER: Give me a call
and I'll show you.
MR. DEVORA: Very good.
CHAIRPERSON BURKHAMMER: Mr. Masterson.
MR. MASTERSON: What we're going to
provide to each of the members is a fairly thick
document. Right now it's about five inches thick
and it's a lot of reading.
We have made comments, but the reason we
want to do it this way is so that you all have
ample time to review our responses to each of the
questions and not give it to you today, expecting
you to review it tonight and then vote on it
tomorrow.
I would hope we should have this in your
hands within two weeks from today.
CHAIRPERSON BURKHAMMER: Great. That
would be appreciated, to give the Committee a
couple months over the summer, with vacations and
everything, to go through it and review it and
come prepared at the fall meeting to fully discuss
it.
In your opinion, how much time --
considering you have ten issues, fairly
substantial to each one, I would guess a half a
day just for you.
MR. DEVORA: There are some issues on
there that I'm sure are going to generate a lot of
discussion, so yeah.
CHAIRPERSON BURKHAMMER: Jim, if you
would note on the next agenda a four-hour block of
time for that issue, thank you. Anything further?
MR. MASTERSON: No, sir.
CHAIRPERSON BURKHAMMER: Any comments on
Felipe or Bob's report? Michael?
MR. BUCHET: I understand from the
comments that this has sort of fallen off OSHA's
relatively high priority list. Do you want to
entertain a motion to suggest that it be elevated
again? That's a question, Mr. Chairman.
We put a lot of emphasis on sanitation
and we felt that that was where we needed to
emphasize OSHA spend some resources and quite
possibly we might want to do something similar
with fall protection, but that's a question for
discussion.
CHAIRPERSON BURKHAMMER: I think it's a
fair question and I think we ought to wait until
the next meeting, when we go through the papers
and the documents and the questions and the
motions that are going to be generated and maybe
at the end of all that, depending on what the
Committee's outcome is, that motion might be worth
making at that time.
MR. BUCHET: Thank you.
CHAIRPERSON BURKHAMMER: Noise. Felipe
and Marie.
|
|
Noise in Construction
|
MS. SWEENEY: Thank you, Mr. Chairman.
When I opened this inaugural meeting of the
workgroup and I had actually about 12 or 13 people
attend and there was a lot of interest, one thing
that we did was we brought in Don Franks, who is
the head of the hearing loss section at NIOSH, who
talked to us about the issues related to hearing
loss and construction workers.
After a 45-minute presentation, I
thought folks on the committee were enlightened,
as well as had a lot of questions and still will
probably bring more people in to give us
background on hearing loss in construction
workers, as well as sources of noises.
Jim Maddox, from the OSHA Health
Standards or Safety Standards program came in and
gave us an update on the ANPR and he said that
they probably wouldn't have the ANPR out until
some time this summer. That's still to be
determined.
They have sent the ANPR up for a legal
review, but they're as yet to have an attorney
assigned to the review, so depending on what
happens there.
We don't really know all the things that
OSHA needs from the workgroup relative to the
proposed standard and Felipe and I haven't
discussed this, but we will decide in the interim
whether or not we're going to have another
workgroup meeting until the ANPR is published.
Perhaps some of the members of the
workgroup might want to call us to see whether or
not they want -- we still want to provide them
with background information about hearing loss,
about sources, about personal protective
equipment, hearing protection, so those are the
main points. Felipe, did you have anything else?
MR. DEVORA: Yes. At this point, like
Marie talked about, until we actually see what the
proposal is, we're really in the information
gathering stage and I will say that this is a very
-- from what I heard yesterday, there was about
five minutes there where I heard a lot of words
that I didn't understand.
The scientists were going at it and this
poor contractor over here, all I knew was that
they were talking about something that was
obviously very important.
So there's a lot of technical stuff in
this, so in terms of using this time for
information gathering, I think it's very important
and I would also ask the rest of the committee,
any information, giving thought to manufactured
equipment, noise levels, data, maybe cranes
perhaps, any of this kind of background
information is only going to help us when we do
know what our actual charge is and what the
proposal looks like.
Having said that, Marie is going to
handle the science and I'm going to handle the
contractor items.
MS. SWEENEY: And you hung in there very
well.
MR. DEVORA: Thank you.
CHAIRPERSON BURKHAMMER: And what a team
that will be. Any comments or questions on the
report?
|
|
(No response.)
|
CHAIRPERSON BURKHAMMER: Okay. It's
12:04, we'll adjourn for lunch. Please be back
here at 1:00.
(Whereupon a luncheon recess was taken
at 12:02 p.m.)
|
|
AFTERNOON SESSION
|
(1:05 p.m.)
CHAIRPERSON BURKHAMMER: All right.
Welcome back in session.
Several times over the past years that
I've been associated with ACCSH we've had numerous
discussions on the rulemaking process and how it
works or doesn't work, depending on one's point of
view.
We've asked that we have a presentation
made this time and I'm glad to see they're here to
talk about the rulemaking process and kind of give
the ACCSH Committee an overview of how it's really
supposed to work.
I think we're going to be able to get a
lot out of this, so without further ado, Claudia,
are you and George ready?
MS. THURBER: We are.
MR. BUCHET: Not only how it's supposed
to work, but maybe a couple of war stories on how
it does work.
MR. HENSCHEL: And how it doesn't work.
CHAIRPERSON BURKHAMMER: I tried to be
kind.
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The Rule Making Process
|
MR. HENSCHEL: Good afternoon. My name
is George Henschel, I'm Council for Safety
Standards and here's Claudia Thurber, who is
Council for Health Standards. Marthe isn't here
yet, I guess, but I assume she will come in at
some point during the presentation and if it's at
a good point, we can have her start her
presentation or she may want to just wait until
we're done with ours.
I see a couple familiar faces, some
folks who have been involved in rulemaking, Steve
Cooper for example, and Mike. Those of you who
have seen rulemaking, you've probably heard the
story about making law and making sausage.
People who have seen either, they know
that it's not a pretty process. You may like the
final product, but the process is not a nice one.
Let me start off. We're calling this
"Headlines and Hurdles," but actually it's more
like jumping through hoops. There are a lot of
different steps that are necessary, as you know,
and for those of you who have done rulemaking and
have been involved with rulemaking, at lot of this
will be familiar to you, but there will still be
some surprises, I'm sure.
Let me go over some of the things that
we're going to discuss. First of all, our basis
statute, the OSH Act, the substantive tests and
criteria that we have to meet and the procedures,
basic procedures for setting rules and standards,
which we'll discuss also.
But there are a lot of things that we
have to deal with besides our own statute. We
have other statutes and Executive Orders, we have
to address concerns of Congress and political
concerns. There's the whole priority process, how
OSHA sets its priorities and keeps them and public
participation. This committee is certainly part
of our public participation in the construction
area, areas in which committees can help and
individual members of the public and other
organizations can help.
Let me start off by talking about the
first standards that we ever had on the books.
These were referred to as Section 6(a) standards,
Section 6(a) of the OSH Act. There was a two-year
window of opportunity, we called it, during the
first two years of the OSH Act Congress directed
the Secretary of Labor to adopt established
Federal standards and National consensus standards
as OSHA standards, without having to go through
the notice and comment process.
This obviously resulted in the big book
of standards that you see for each of the areas
that we cover.
Now I'll turn it over to Claudia, who
will start to give you some information about
standards that actually go through rulemaking.
MS. THURBER: One of the things that
we're permitted to do under the OSH Act is have an
emergency temporary standard and the upside of the
emergency temporary standard is that you don't
have to meet the requirements of the APA, it can
be immediately effective, it can take care of a
grave danger.
The down side is that we have a very
dismal record with emergency temporary standards.
In the 29 years or so that we've been in
existence, there have been seven or eight of them,
one was unchallenged, one was challenged but
prevailed and all the rest of them struck down by
the courts.
They last for six months, there is an
ETS -- the Emergency Temporary Standard becomes
the proposed rule and it then goes through all the
proposal stages after that.
The thing to remember about it is it's
really for the very exceptional situation, it's a
very extraordinary way to set a standard and we
are very reluctant to use it, if there's any way
of going into regular rulemaking or starting with
guidelines and moving into rulemaking.
MR. HENSCHEL: One thing that we usually
need to clarify with folks is that OSHA standards
are not the only types of regulations that OSHA
issues.
All OSHA standards are what they call
regulations or rules, but not all regulations are
standards. For example, I give some examples up
here on the slide, OSHA issues regulations on
injury and illness record keeping, it has rules on
its consultation program and there are a number of
procedural rules that OSHA has for enforcement,
for actually conducting rulemaking.
These rules are not covered by Section
6(b), which is our regular standard setting
process. These are what are referring to as APA,
Administrative Procedure Act rulemakings, which
are just notice and comment and there's no right
to a hearing, no responsibility to have a hearing
for those.
But the type of OSHA rule that you're
most involved with here on the Committee is the
OSHA standard and we have some basic requirements
that we have for OSHA standards that have been set
by the court, primarily in what's referred to as the Benzene
decision.
We have to comply with Section 3-8 of
the OSH Act, which requires that we regulate only
significant risks. We need to find that there is
a significant risk of health functional capacity.
We have to find that our standard is reasonably
necessary and appropriate and we have to make a
determination that our standards are
technologically and economically feasible. Those
are obviously very loaded terms and there's a lot
of case law on them.
There are additional requirements for
what are called so-called health standards under
Section 6(b)(5) of the Act. These requirements
include that we have to assure that to the extent
feasible, to the limits of feasibility, that no
employee suffers material impairment, even if
exposed to the hazard for a working life time.
If there is a significant risk and there
are problems with feasibility, we have to regulate
to the limits of feasibility, if the risk is still
significant.
Now I'll turn it back over to Claudia to
go through the whole process of -- I'll hide under
the podium.
MS. SWEENEY: Would you define
"significant risk" please?
MS. THURBER: I wish I could. What the
court said in the Benzene
decision was that we had
to have significant risk. The court said we don't
have to make risk-free work places, but we have to
eliminate significant risk to the extent that we
can.
The court did not -- and this is a
plurality of the court, it's kind of a funny
decision that way. It wasn't nine to nothing, it
wasn't even seven to two, it was four, with one
ore chiming in on it, which makes a plurality.
There is no mathematical straight
jacket. What they said was that the decision as
to what is a significant risk will be based
largely on policy and then they gave some sort of
numerical guidelines.
They said a reasonable person would
consider a one in a thousand chance of dying from
inhaling fumes as a significant risk, whereas a
reasonable person might consider a one in a
billion chance as an insignificant risk. so we
have loose guidelines.
But that doesn't mean that we have to
have at least one in a thousand chance of death,
because as George said earlier, we're looking at
material impairment of harm and in fact, in some
standards, in our new TB proposal, we're looking
at impairment of harm as being infection with TB
and blood borne pathogens and I know the health
standards better than I know the safety standards,
blood borne pathogens we looked at infection of
hepatitis B virus, even though only maybe 20
percent will go on to some sort of clinical
disease or some sort of outcome.
I'm not coordinated for this. As George
said, OSHA is constrained by feasibility on health
standards and feasibility means capable of being
done.
As far as technological feasibility, it
means that the technology is out there to do it,
that it can be foreseen that it can be developed
or that it's available and can be put into use
right now, so it's really three different things.
It doesn't mean that an industry is
doing it right now, it can be technology forcing.
It has --
MR. BUCHET: Claudia, is there a time
frame on that? If we say in ten years we might
develop the strategic defense initiative, that's
foreseeable feasibility or are we talking --
MS. THURBER: I think reasonably
foreseeable is what it really means and if within
a year or two the technology can be developed --
usually we're working with what's there or what's
out there and not everybody had developed.
And it is true that industries have
stepped forward, Marthe was talking this morning
at another meeting, I think it was acrylonitrile
or vinyl chloride where it was technology forcing
and within a year, industry came into compliance.
Was it vinyl chloride?
Economic feasibility. Economic
feasibility means that it must be written so that
you cannot destroy a whole industry, but you can
break the laggards.
In other words, an industry has to be
able to absorb the cost, pass it on without
threatening long term profitability or compulsive
standards. That's the industry, not one
particular business.
In terms of safety standards, we look at
cost benefit, in terms of health standards, we are
not permitted to look at cost benefits, we look at
cost effectiveness. In other words, we find out
how low we have to go, we look at all the
alternatives to get there and we choose the one
that is the least costly.
Cotton Dust
decision is the Supreme
Court decision that gave us our feasibility
analysis, not cost benefit analysis and our
limitations and that's the one that I just talked
about.
Now, in terms of challenges to the
standard, we go by the substantial evidence test.
In other words, the determinations of the
Secretary shall be conclusive, if supported by
substantial evidence in the record considered as a
whole.
So what's "the record"? The record is
everything we rely upon and it's usually
characterized by our docket, which contains
articles, our hearing transcripts, video tapes,
just about everything you could imagine that goes
into that long process of rulemaking, comments,
studies, testimony.
We do not follow the formal Rules of
Evidence in our rulemaking, but we do have rules
and we are obligated to write a preamble that
explains what we have done and we must consider
all the evidence and we distinguish evidence that
we do not accept.
MR. HENSCHEL: One of the things we've
done, by the way, as far as dealing with evidence
in the record, is we've -- in a couple of recent
rulemakings we've started to accept electronic
comments to the docket and we've established a
place on the OSHA web site where when a proposed
standard comes out, employers and employees and
any other interested persons in the public who
want to comment on a proposal can actually file it
directly from the web site.
MR. BUCHET: It is any interested
person, it's not just an affected population?
MR. HENSCHEL: Any interested person.
MR. BUCHET: Anybody who wants to give
an --
MR. HENSCHEL: That's correct.
MR. BUCHET: Thank you.
MR. HENSCHEL: I see that Marthe is
here. Hello, Marthe.
UNKNOWN: Marthe is here, she's just
hiding while you guys are doing such a good job.
MR. HENSCHEL: If you'd like, we will
continue and then anything you want to chime in
with, feel free.
But anyway, I mentioned earlier the OSH
Act and there are a lot of other statutes that we
have to deal with and a lot of people in the
public don't really realize how many different
statutes and as you'll see, other directives that
we have to comply with.
For example, the Administrative
Procedure Act generally applies to all notice and
comment rulemakings. The Federal Advisory
Committee Act, under which this Committee is
serving, we have to make sure that all the
requirements are met whenever an advisory
committee meetings, on the other hand, we have to
make sure that whenever we have what are referred
to as "preferred sources of advice," an advisory
committee is considered that, we meet certain
formalities.
We have to comply with the National
Environmental Protection Act. There's not a whole
lot that we generally have to do on that, but it's
still something we have to pay attention to.
Those of you that are familiar with the
Steel Erection proposal know that there's a
statute called the Negotiated Rulemaking Act,
which provides for some alternative procedures in
accordance with the Federal Advisory Committee Act
for negotiated rulemaking.
Negotiated rulemaking is really what --
I think it's somewhat of a misnomer, because the
Agency still has to develop a proposed rule and
has to go through its normal rulemaking process on
a proposal, so it's really negotiated pre-rulemaking. It's negotiated development of
proposal and development of evidence that will
support the proposal.
We also have to deal with the Paperwork
Reduction Act, where we are limited to some extent
in the amount of paperwork we can impose through
our rulemaking requirements and we have to keep a
budget, a paperwork budget, which we have to run
by OMB every year.
We also have a statute -- these next two
are pretty closely related. There's the
Regulatory Flexibility Act, referred to as Reg
Flex or RFA, and the Small Business Regulatory
Enforcement Fairness Act, which has a somewhat
unwieldy acronym, SBREFA.
Both of these statutes are directed at
the impacts of regulations on what are referred to
as small entities, small businesses and small
governmental entities.
Finally, there's Unfunded Mandates
Reform Act, which is where any kind of government
directive imposes directly costs and impacts on --
that are actually not taken into account directly
in a rule, that may be imposed indirectly.
As I say at the top of this particular
slide, --
MR. BUCHET: George, the Unfunded
Mandates, that's an effect on private as well as
public entities?
MR. HENSCHEL: There is some there, yes.
Most of the concern that's addressed publicly has
to do with impact on governments. Most of the
attention that's paid to it. We do have to deal
with both aspects, though.
MR. BUCHET: The economic study must
answer an awful lot of those questions for the
industry participant?
MR. HENSCHEL: That's part of the
economic analysis that OSHA does and I'm sure
Marthe can speak to that in more detail.
There are a number of other things, when
we talk about economics also that leads right into
this, a number of other requirements that we have
that are non-statutory.
For example, we have a number of
Executive Orders and some of them are -- there are
two in particular that are of particular note to
us. One is the President's Executive Order on
Regulatory Planning and Review, and that's 12-8-66, that's the latest in a series of these
Executive Orders that require agencies to do
economic analyses of their proposed rules and
final rules and to coordinate with OMB.
And there's the most recent one on
Federalism that became effective November 5, it
deals with impacts on state and local governments
and other government entities.
We have a Presidential Memorandum on
Plain Language, those of you that have read the
Ergonomics Proposal will note the different format
that was used for that and there's a major
initiative in the government, led by the Vice
President, to have agencies write their rules in
plain language.
Question and answer format tends to be a
more popular means of writing rules these days.
Sometimes it works, sometimes it doesn't. We use
it where we can.
There's always Congressional interest in
everything that we do. You may have noted, there
were a number of hearings recently on various
aspects of OSHA, from the home worker element that
was in the news so much, there's been a lot of
hearings on ergonomics and related things.
Congress does take great interest in everything
that we do.
Now let's assume that we've got a rule
that we want to propose. How do we go about this?
How do we go about starting a rulemaking?
There are any number of first steps.
OSHA receives a number of petitions, they may
receive them from any member of the public, asking
that OSHA either revise an existing rule or
develop a new rule for perhaps a hazard that
hasn't yet been addressed by a specific standard.
There are advisory committees, such as
this one. OSHA has different types of advisory
committees that it can call upon. Under the OSH
Act, there are specific requirements for standards
advisory committees.
There's currently an advisory committee
that is underway on metal working fluids, for
example. There are negotiated rulemaking
committees, which is really a form of advisory
committee, there is stake holder input, where it
may be a petition, it may be just letters to the
Agency.
There are court decisions, for example
if a standard -- if the Agency has regulated and a
court has determined that the Agency needs to take
further action to either revise the rule or to go
back and revisit it, the court will tell us to do
so.
And there are also times where there are
decisions in the enforcement area, where OSHA may
be trying to enforce a particular standard in a
particular way and the court will sanction that
or, if they do not and OSHA has a number of these,
OSHA may consider going back to revise the rule.
Finally, OSHA may have its own internal
review of particular hazards to determine whether
the existing rules are adequate or whether there
are new rules necessary.
MS. WILLIAMS: George, is there any
certain quantity of petitions that would trigger
your interest?
MR. HENSCHEL: I don't know whether
there's any particular quantum. I think that what
will happen sometimes is that when a number of
petitions come in, OSHA will then go and evaluate
the hazard itself and develop some additional
evidence and determine whether it needs to --
sometimes it will go for an Advance Notice of
Proposed Rulemaking, which is a pre-rulemaking
step, to try to get more information.
And sometimes -- you know, there are all
kinds of means of getting additional evidence.
Sometimes the Agency will also talk to one of its
existing advisory committees or even establish a
new advisory committee. Yes?
MR. BUCHET: You mentioned the ANPR. Is
there anything that stops an advisory committee
from asking to see or volunteering to help create
the ANPR before it goes out?
MR. HENSCHEL: There's no formal ban on
that, although the Agency does set the agenda for
its advisory committees, so if the Agency is
interested, the Agency may certainly take
advantage of that. Depending upon what the
Agency's priorities are, they may or may not.
The next step is the regulatory agenda
and I'll turn it over to Claudia for that.
MS. THURBER: Let me just add that it's
not at all unusual for OSHA to use information
generated by advisory committees in ANPRs.
Twice each year by law OSHA must publish
its regulatory agenda and this is government wide,
everybody in government who is regulating has to
publish a regulatory agenda.
We publish in April and October and I
understand our new one is out and it's usually put
on our web page as soon as possible, at any rate
it's always available on The Federal Register web
page.
It's required by the Regulatory
Flexibility Act, Executive Order 12866 and in it,
we have 12 to 18 months projections on things.
We've divided it into four sections. We have a
pre-rule section, a proposed rule, final rules,
long term actions and completed actions.
Actually, that's five.
In it, we put our anticipated dates.
Sometimes we don't know how long it's going to
take, so we will put something something zero
zero, which suggests this is of a lower priority
than others and we do try to be accurate, but the
dates there do slip and we are not required by law
to meet those dates.
Executive Order 12866 requires us to
list all regs that we have under active
consideration for the coming year, so if it isn't
in the reg agenda, it's not under active
consideration in the coming year and those are the
regs that have an annual effect on the economy of
$100 million, that adversely effect the economy in
sector productively, jobs, et cetera, or regs that
OIRA, the Office of Information & Regulatory
Analysis in OMB decide are significant.
We also make a preliminary determination
as to whether these will have a potential impact
on small entities, but quite often for some of
them we're very much in our early stages, so that
is a preliminary determination.
George talked a little bit about the
Advance Notice of Proposed Rulemaking. We do use
it a lot. We are not required to use it, it's not
a statutory animal of any kind, not a formal step.
What it really is is a statement that
says this is the information we have, we think
we're going to regulate in this area, tell us what
you know about this and we tend to put down what
we have, we tend to ask a lot of questions in it
and we let you know what we're concerned about.
it's very preliminary.
Sometimes we call them requests for
information and sometimes we have both, as in buta
dyn.
We hold stake holder meetings and this
is something we've been doing in the last four or
five years, we didn't do it a whole lot before
that. We look at people who are effected by the
standard, manufacturers, suppliers, employers,
employees and other parties. We also have
participation from professional and trade
associations.
We try to get a lot of information. We
also try to provide the information that we have.
In other words, the direction that we're going in
terms of the topic.
It's not an advisory committee and we're
very careful to make sure this is not an advisory
committee. We're not interested in a consensus
from those who attend it, we are interested in
what's happening with them, what they think of our
general ideas of what we're going to do about the
regulation.
If we have a draft text or if we have a
draft outline more likely, we will generally share
it with our stake holders and get their input.
It's another step in the process very early on for
people to participate and give us information and
help us to write a better reg.
Okay. We've touched on this a little
bit. This is the statutory animal, this is the
Notice of Proposed Rulemaking and in it, always at
the back, we have our proposed regulatory text.
Most of us who are in this business start reading
there first to find out what's really going to be
required.
Then we're required to explain it and we
generally go through the background, which is a
statement of the history, what's been happening,
how did we get here, was this by virtue of
petitions, was there a large accident, did
Congress mandate for us to do this.
We have a summary and explanation of the
proposed standard, that includes all of its
provisions. We cite the statutory criteria and
the requirements and explain how this particular
standard meets those criteria and requirements.
There is a large but summary section on
economics and feasibility and this is the initial
cut at what's feasible and what the economic costs
will be.
There's also -- and this is becoming
even more prevalent in the later standards, a long
section of issues and questions. I think we try
harder every year to focus the public on what we
really need to know so that people aren't sending
in just everything they have, but they're
addressing the issues that truly are issues.
Then we let everybody know that there
will be an opportunity for public participation.
Sometimes we will know that there's going to be a
hearing and we may schedule it in that document,
other times we'll say does someone want to have a
hearing and if someone wants to have a hearing,
then we hold it and we will schedule it in another
document.
MR. HENSCHEL: A few words about SBREFA,
which has come to take up a lot of our time and
energy in the last couple of years, those of us
that have been so involved in the process.
SBREFA set up a requirement to have a
small business review panel and Congress said the
effected agencies had to do this. Well, who are
the effected agencies? OSHA and EPA, defined in
the statute.
So what happens is that if a proposed
rule may have a significant economic impact on a
substantial number of small entities, and I raise
the question what do these terms mean, we don't
know for sure, the Act does not define them. We
haven't formally asked anybody to define them
because we don't really know what they'll say, but
if we, in our judgment and OSHA, in its judgment,
believe that a rule may have a significant
economic impact on a substantial number of small
entities, we're required to convene a small
business review panel.
This panel consists of OSHA, OSHA chairs
the panel and puts members on the panel. OMB is
also on this panel and the Small Business
Administration Office of Advocacy is represented
on this panel, so this is one of those strange
bedfellows kind of organizations.
What the panel does is first, OSHA and
SBA identifies small business representatives who
would be effected by the proposed rule. The panel
then distributes information to the panel,
including the draft proposed standard and other
materials, it may include part of the economic
analysis, it may include other feasibility
information and those small business
representatives review these materials and get
back to the panel.
The panel receives these comments
usually in writing and sometimes by telephone in a
telephone conference and we've had several of
these conferences and they can be very interesting
experiences.
Once the panel receives the comments,
the panel prepares a report that it submits to the
Assistant Secretary and the panel summarizes all
the small business comments and includes
suggestions, including a lot of the suggestions
that the small business representatives have made
to improve the standard, to make it clearer, to
reduce impact, and it includes issues that it
wants OSHA to raise in the proposed rule.
This is sometimes not consensus between
OSHA and OMB and SBA on these things, as you might
be surprised to find out, but there can be a
consensus report and there can be separate views
that are attached to it by one or another of the
parties, of the members of the panel.
MR. BUCHET: If there isn't consensus
and the small business, for instance, says this
shouldn't go any further, what happens at that
point? Or are you going to cover that?
MR. HENSCHEL: That's included in the
report and the report is --
MR. BUCHET: That's advisory to OSHA?
MR. HENSCHEL: Right. And what it does
is it reports the small business representatives'
views. OSHA is not required to take any specific
action based upon the panel, it does need to
address the issues.
MR. BUCHET: Address the issues.
MR. HENSCHEL: And now an organization
that's very close to your hearts, you know who
these folks are, your committee is a very
important part of the rulemaking process for OSHA
construction standards.
It was established, as you know, under
the Construction Safety Act and it was originally
a nine-member committee. It was to assist the
Agency in developing construction standards,
Federally funded and assisted construction, and in
the administration of the Construction Safety Act.
When the OSH Act came along, one of the
first steps that OSHA did in the standards area
was adopt the standards that had been developed
for construction under the Construction Safety Act
as established Federal standards and the next
thing was to expand the size of the committee to
meet the requirements under the OSH Act, which
provides for 15 members, so that's how there are
more than nine of you here.
OSHA consults with your committee on
construction standards, we provide the committee
with proposed standards and supporting information
and this committee reviews proposed standards and
provides recommendations to the Agency and it may
majority and minority views. But it is the one
standards advisory committee that OSHA is required
to use.
CHAIRPERSON BURKHAMMER: George, on that
one that said minority and majority views, in all
my years associated with this committee, we've
never given a minority report.
MR. HENSCHEL: The regulations actually
specifically provide for that sort of thing, if
the committee wants to do it.
MS. KENT: There's whole new
opportunities.
CHAIRPERSON BURKHAMMER: You've opened a
whole new door. Jane, where are our guidelines
here so I can make sure that we don't have to --
MR. HENSCHEL: Let me address the whole
question. This was the Executive Order that leads
to most of OSHA's economic analyses. There are
certain aspects that deal with small business, but
the main thing is Executive Order review for the
overall impact of the rule.
The Office of Information & Regulatory
Affairs, OIRA it's called at OMB, reviews
significant regulatory actions. Basically, what
is a significant regulatory action? There are
certain cost aspects, if the rule is of a high
enough cost they will look at it and the bottom
line is if it has significant or novel legal
issues or other issues, and basically, anything
that OMB wants to look at, OMB can designate as
significant.
A significant regulatory action, if it's
economically significant, if it's likely to have
an annual effect of $100 million on the economy
or, as I mentioned, anything else that they
designate.
OIRA reviews our proposed rules and they
review our final rules. They keep records,
occasionally parties will seek to meet with OMB,
with the OIRA staff, to discuss proposed rules and
final rules. OIRA has to keep records of these
communications, they have to keep a file and they
have to make that file publicly available at the
end of the rulemaking.
MS. KENT: And they also have to invite
the Agency.
MR. HENSCHEL: Right. I'm sorry, that's
correct. They have to invite the Agency to any
meetings that they have.
MR. BUCHET: Does OIRA have phases?
MS. KENT: Oh, does it. Oh, yes.
MR. HENSCHEL: Oh, yes, they do.
MR. BUCHET: What sort of skills and
professions populate the faces of OIRA?
MR. HENSCHEL: There's a wide range.
Our desk officer right now I believe is a
PhD economist and there are a lot of public
policy --
MR. BUCHET: Are there any safety?
MR. HENSCHEL: I don't know. They must
have some staff who are involved with safety.
MS. KENT: They have health people, they
have risk assessors who join in the review process
when that's necessary, so we're going to send TB
over, risk assessment is a big issue, there will
be somebody there.
Safety, I've not actually had that
experience and the reason is because most of our
safety rules don't trip the OMB trigger.
MR. HENSCHEL: In that way they act a
lot like the Department of Labor does in that
there are little pockets of expertise in different
parts and if we need to draw on them, we can.
MS. THURBER: After all this is finished
and after the rule has been sprung from OMB,
usually within hours we're calling The Register
and saying it's coming over, as soon as we can get
our signatures. It's really a race to The
Register because we're all exhausted and we're so
excited about getting something out.
So it goes to The Register, if it's a
long rule it takes a week or so for them, maybe
even more for them to get it into print. If it's
a real short one, it could go in very quickly.
The proposal sets the public comment
period and it starts on the day it's published in
The Federal Register, and incidently, it's on the
web page at that time, too, on The Federal
Register web page and I think we try to get it on
ours that day also.
The public comment period can be 30
days, 90 days, whatever the Agency has determined
is appropriate for the amount of comment or
whatever the Agency can afford to spare, in terms
of trying to get this out by the end of one year
or the end of the next year. There is no
statutory requirement, except for 30 days.
In the proposal there's an opportunity
to request an informal public hearing. In my
experience, we almost always have them. It's the
rare standard, usually it's a very small safety
standard, that does not have a request for a
public hearing and even in some of the smaller
safety standards we've had half day hearings.
The public participates in a number of
ways. The vast majority of them participate by
sending in written comments, hard copy, usually
four copies, which are then distributed to the
people who are working on the standards.
Now they're sending in e-comments. Last
I checked, we're not able to do attachments with
e-comments, so if someone sends an e-comment in,
you have to send the attachment in separately, the
article or the supporting graphs or whatever else
you're sending in.
If you object to the proposal, you are
entitled to a hearing. If OSHA schedules a
hearing, OSHA will ask you to submit a Notice of
Intention to Appear and this is a very -- it's a
brief document, it's a very important document
because in it you say who you are, who you
represent, what you plan to say, how much time
you'll need to say it and what supporting evidence
you'll be bringing in.
This is absolutely essential for
scheduling the hearings, so that everybody will
have a chance to speak. People who ask for five
or six hours on a hearing are probably not going
to get that because the project people, the judge
and others go over this and they decide what's an
appropriate amount of time.
And there's nothing special about
testifying. OSHA considers all the comments of
equal weight and persuasion, depending on how
inherently persuasive they are. It's not
imperative that you stand up and read your
testimony for 20 or 30 pages, it will be read,
considered, analyzed, part of the record even if
you only participate at the stage of the written
comments.
Testimony, documentary evidence, and
we've had the range of documentary evidence, from
papers to video to -- well, in blood borne, we had
a couple of dirty needle sticks that had to be
discarded before they hit the record and I'm sure
that in the safety standards there have been a
number of actual hard evidence things.
MS. KENT: Fire axes.
MS. THURBER: Fire axes. In field
sanitation we had a set of parasites, a sort of
desk set that somebody had made up into baby food
jars. Some high moments.
After the hearings, and we generally
take the hearings on the road, if it's a large
hearing, our ergonomics hearing has been to
Chicago and to Portland and I guess they'll be
back this next week for more time in Washington.
Our indoor air quality hearing was all in
Washington and it lasted almost seven months. TB
we took to four places.
We try to go where the workers and the
industries are that will be able to testify
because we're there, so I think it's very
important that we go out on the road, because not
everybody can afford to come to Washington, take
days off and testify.
After the hearing the judge will set the
post hearing comment period, which will include a
period for briefs. First there will be a period
for you to send in your extra material, for you to
comment on what was said by other people or
perhaps what was said by OSHA, and OSHA is
available on the first day of every hearing to
answer questions. OSHA's proposal is its
statement.
MR. BUCHET: At the post hearing comment
period, is that limited to only people who have
spoken or sent in written comments or can anybody
send something in and say I don't like what Harry
said on Thursday?
MS. THURBER: It is limited to those who
are participating in that process, so if you want
to go on with the process, you would file -- if
you wanted to go all the way, you would file a
Notice of Intent to Appear and at least appear for
some small amount of time.
And there is another way to appear. If
for some reason you've forgotten to file your
notice and you have just a few words that you want
to say, it's in the judge's discretion to allow
you to speak for up to ten minutes, if there's
time. At some hearings there's just no time,
ergonomics has been going day and night and I
doubt that there's been any time for walk-ons. In
others, people have dropped out and there's been
time for three or four walk-ons perhaps at the end
of the day.
The post hearing comment period is for
those who participated in the hearing, to make
another statement, submit more information. The
brief period is after that, it usually runs about
30 days and that's your chance to write up a
brief, your summary of the evidence, how you feel
the evidence effects what you're doing. It's your
kind of last shot at things.
Following the hearings and maybe one day
off to rest, OSHA starts drafting the final rule
and OSHA has to follow all the steps that it
followed before, except for the small business
panel.
It has to review and analyze the
rulemaking record and the record can be anywhere
from four or five comments in the smallest of
rulemakings to several hundred thousand comments
in the I&Q rulemaking, ten thousand comments in
the ergonomics rulemaking. Obviously, some of the
comments will be a post card letter writing
campaign or something, but many, many of the
comments are substantive, all must be read, all
must be analyzed, all must be part of the record
and considered.
OSHA will begin revising and evaluating
the small business impacts, they'll also update
the paperwork package and they'll develop the
final regulatory test and preamble. It sounds
like simple steps, but not one of them is simple.
They're done by teams and it's a lot of work and
it takes a lot more time than we think when we
first start out.
Then we will evaluate, mostly those of
us in SOL, the final rule for legal sufficiency
under the Act and under all of the authorities
that George went through earlier.
After the team has finished, has gotten
to the point where they're written the reg text,
they've done all the analyses, they've written all
the parts, it goes through an internal clearance
process at the Department of Labor and this is
after it's gone through an internal process within
its own offices.
Marthe will be reviewing for her office,
George or I will be reviewing for ours and
sometimes our boss, Joe Woodward, will be
reviewing, depending on the topic.
OMB review, this is kind of a review of
OMB reviews. If it's a significant regulatory
action under Executive Order 12866, George talked
about that, they will review the paperwork under
the Paperwork Reduction Act and also any
Federalism impacts.
They tend to look to other people in
other agencies, too. If we have a health
standard, it might go to FDA or it might go to HHS
for some comments from them. Hopefully, we've
already done that beforehand, so it's not a
surprise to us.
And then finally, under SBREFA, all
final rules must go to Congress. This is a 1996
requirement, so we're not so used to it as we are
some of the other older requirements.
What this says is that the rule that we
have will not be effect for 60 days and then it is
effective, unless it's disapproved in the latest
of three dates, and don't write this down or
anything because it's complicated and we're not
always sure exactly what it means, 60 calendar
days after The Federal Register publication or if
Congress passes a Joint Resolution of Disapproval,
then it would not be effective, and the President
could veto it, unless the veto is overridden, so
you can see we'd have a three-step process there.
MR. BUCHET: Do they have to override
the veto within a certain number of days or it
takes effect?
MS. THURBER: I think they have 30
session days and session days are hard to
calculate. We sat down in the office when we
first got it and tried to figure out exactly how
many days.
MS. KENT: It's impossible, nobody could
count it.
MS. THURBER: The up side of this is
that no regulation has been disapproved yet and if
it stays that way, we may never have to worry
about what a session day is or anything related to
it.
MR. BUCHET: Wait for ergo.
MS. THURBER: I'm sure ergo will be
fine.
MR. HENSCHEL: One of the things that we
are grateful for is that in this final review
process one of the early versions of the SBREFA
Bill called for us to consult with the review
panel, both at the proposed rule and at the final
rule stage and we're very grateful that that
version was not passed, because it takes an awful
lot of time.
Finally, success and OSHA publishes its
final rule in The Federal Register. Usually we
will have delayed effective dates, if there are
provisions that impose certain requirements for
technology or for engineering controls, for
example.
Then there's the ever popular correction
notice. Sometimes -- I had to put that in there
because it's gotten to be almost a set part of the
process. There are often -- besides typos, there
are things that just -- from one version to
another just didn't come out right in the final
and there are things that we were supposed to
correct that we didn't and we end up correcting
them there.
There are oftentimes -- what someone who
intends to challenge a rule will do is they will
petition the Agency for reconsideration or a stay
of the final rule. This is what's referred to in
legal jargon as exhausting your administrative
remedies. It's going to the Agency and getting
one last shot, saying Agency, do something about
this or we're going to sue.
MR. BUCHET: George, can that be anybody
or does it have to come from the population that's
been commenting throughout the rulemaking process?
MR. HENSCHEL: We've had whole wide
ranges of people who have filed. We have had
organizations that didn't formally file comments
that challenged. There are a number of questions
as to who has standing to challenge a particular
standard. They've come out different ways in
different standards.
For example, I think in fire protection,
a fire protection manufacturer challenged the rule
and I think the court said that they didn't, but
then there was another rule similar to that where
the court did say they had standing.
Challenges to OSHA standards are under
Section 6(f) of the Act and there are 59 days
after the rule is promulgated for an interested
person to challenge and the challenges are in the
U.S. Courts of Appeals, any Court of Appeals. The
Fifth Circuit tends to be very popular for the
industry, Fifth and Eleventh Circuits and D.C.
Circuit lately.
This may include a petition to try to
get the court to stay the effectiveness of a final
rule pending the review process and there's always
-- once a challenge is filed, there are always
efforts to discuss the final rule with the
litigants and possibly to settle and possibly to
have some supplemental rulemaking, if there are
still issues that are outstanding that we may need
to flesh out in more detail.
We don't encourage lawsuits, but we
sometimes get them. But back to the process.
This slide is generally directed at the
public. We try to encourage people to participate
in the rulemaking and I guess this actually
applies just as strongly to members of advisory
committees, because just as much as a safety and
health professional or an employer or employee,
union rep on his or her own may be a source of
great expertise for the Agency, this committee
brings all of these elements together and the
Agency can really make use of your expertise.
You see how complicated the process can
be. Any amount of additional information that we
can get that helps us developing a record is
certainly welcome.
OSHA provides advisory committees with a
lot of information, but there are a lot of sources
that are -- in fact, they've been expanded
considerably since we prepared this. The Federal
Register is available on line, so one doesn't have
to have a subscription to that huge volume
anymore, you can actually get it on line.
OSHA's own web site has been expanded
dramatically and I understand you're going to have
a presentation later about some of the
improvements to the web site. I mentioned that
we're having electronic comments, the ergonomics
rule is on the web site, a lot of our rulemaking
documents, OSHA itself puts up these things. Even
though they're available through The Federal
Register, OSHA makes them available through its
own web site.
Trade publications and professional
journals, newsletters have provided a lot of
information on what OSHA is doing and I encourage
members of the committee, as members of the
committee and representing your particular
interests, if there is an area that OSHA is
regulating that you would have some interest in,
please participate. We need your expertise. With
that, we'll accept any questions.
CHAIRPERSON BURKHAMMER: Does the
committee have any questions or comments on the
presentation? Michael?
MR. BUCHET: One heart-felt comment is
thank you very much. It's made our job so much
easier. We just make a suggestion and say get it
done. My question is is there any practical way
to give us a time line?
MR. HENSCHEL: A time line. There's so
many of these steps, as you saw from these things,
there's so many things that kind of double over
themselves, so it's really hard to have any hard
and fast time line frame for a particular project.
We develop them and we put these time
frames in the regulatory agenda, to the best of
our knowledge, but --
MR. BUCHET: How about a handy-dandy
flow chart without the time and then we can assign
it as we pick different projects? Is there such a
thing?
MR. HENSCHEL: I think we could probably
put together something like that, something rough.
MR. BUCHET: Would the committee
appreciate it? Because I sure would.
UNKNOWN: Yes.
CHAIRPERSON BURKHAMMER: Yes. Jane?
MS. WILLIAMS: From an Advance Notice of
Proposed Rulemaking to a Notice of Proposed
Rulemaking, what are the technicalities that would
have to be gone through or what would have to be
done to streamline any type of a process or can
you skip from one to the other?
MR. HENSCHEL: You don't really need an
ANPR. OSHA goes with an ANPR when it's gotten the
issues refined enough so it knows what it's
looking for and can ask for specific information
or, on the other hand, if it's at a really early
stage and we just know the rough outlines of what
it is that we want to get information on, then
we'll ask very broad questions.
So ANPRs can be as narrow or as broad as
we want them to be, but it's not -- no matter what
format we use, it's not really a necessity for a
rulemaking.
CHAIRPERSON BURKHAMMER: Mr. Cooper?
MR. COOPER: George, what is the -- I
know the answer to is there a time line, the
answer is no, I know that, but what is the general
time line, I'll use that term, to revise an
existing standard which has not been revised that
much?
What I'm really talking about is the
sanitation standard, of course. You know there's
a standard on the board, you know that the SOL
said we can't use that standard because it's not
workable and so this committee has spent a lot of
time on the sanitation standard and proposed it
back to OSHA.
But the time frame on that standard, can
you give us some idea on the fastest that could
get done if it was started on today and if some
emphasis was put on it?
MR. HENSCHEL: We've done rules as
quickly as something like six months, if they're
very, very narrowly drawn and they didn't have a
lot of economic impact. Then again, you've seen
what's happened with some other rules.
It really depends on how much
information we have to gather, because sometimes
it's more difficult to revise a rule than it is to
issue a new one because you have to explain the
differences between what it is you have on the
books now and what you're proposing to do, how it
will improve safety or health and what the impacts
are going to be.
If you're starting from scratch for a
hazard that hasn't been regulated yet, sometimes
that's even easier. But it can be from six
months, I think, upward.
MR. COOPER: Okay. Thank you.
CHAIRPERSON BURKHAMMER: Michael?
MS. KENT: I'm just going to add one
thing. A tremendous impact on our time lines is
always what are the priorities in that regulatory
office. That's huge. If you've got six people
who are standards writers and you've got two hot
ones on top and they're big and complicated,
there's a big problem.
CHAIRPERSON BURKHAMMER: Michael.
MR. BUCHET: I'm trying to think how
long ago, but I think it was last year this
committee requested information on how we could
advise OSHA and then how OSHA could implement a
change from the Manual of Uniform Traffic Control
Device References that currently exists to the
current manual.
In our last meeting, Secretary Jeffress
said he was going to use something and I don't
remember the title, but it was --
MS. THURBER: He finally called it a
Direct Final Rule.
MR. BUCHET: Yes. How are we doing on
that?
MS. THURBER: How are we doing on that.
Well --
MR. BUCHET: What is it and how are we
doing?
MS. THURBER: There's some information
sitting on my desk right now that's been sent up
from the construction people and I had it copied
for George just this week.
This is something that George and I have
been dying to get into, we've been dying to try
and this may well be the vehicle for it. It seems
to be something that's already required, that
everybody is already doing.
It's hard to determine whether there
will be costs, clearly there will be some printing
costs or something, but we haven't looked into
that yet.
What George and I are doing right now is
we're looking at FDA, EPA and other agencies'
experience with this, but obviously we need
something like this for this sort of project. I'm
glad you brought that up.
But again, as Marthe said, there are
always competing priorities.
MS. KENT: And the issue with that one
is whether there are economic impacts or not.
MS. THURBER: What we'll probably do
format wise is something that EPA has done and
others, we will sort of go out with a Direct Final
Rule with a delayed effective date, but in the
same Register notice we'll go out with the same
rule as a proposal and if we get any significant
adverse comment, I would guess if we get adverse
comment at all, we would go through the proposal
stage and go back into rulemaking.
It's a nice shortcut, but it's only a
nice shortcut if nobody cares enough to protest
against it.
CHAIRPERSON BURKHAMMER: Michael.
MR. BUCHET: It would be hard to imagine
that change causing an economic impact because
everybody who is referring to the MUTCD is
referring to the current one and using it now.
When you say "adverse comments," does
that include comments such as the ones that read
like you're not going far enough, so don't do what
you're doing, go further or ones that say we
object to what you're attempting to do?
MS. THURBER: Well, I can't second-guess
the Agency, but it seems to me that if we went
with a Direct Final Rule and the only comment we
got was this just isn't quite enough, we'd
probably go with what we had then and then look to
the future to bring in other things that were
necessary.
MS. KENT: I just wanted to explain
about an economic impact. It depends on what the
current industry baseline is right now and my
understanding is that there is concern that people
are not observing this rule. As soon as that
happens, you have non-compliance, as soon as you
have non-compliance, you have costs.
MR. BUCHET: The baseline isn't forced
for what the practice is, but what the practice
should be because the industry is not following
the old version or even the update of the old
version successfully. Are you saying --
MS. KENT: What I'm saying is that the
current industry baseline from which costs run and
benefits accrue is current industry baseline, what
is the current compliance, not what it ought to
be, what is it.
MR. BUCHET: Oh, I understood that the
current baseline would be where the industry
should be, according to current regulation.
MS. KENT: No, where the industry is
now.
MR. BUCHET: Because if people are not
in compliance for 30 years and you say we're going
to adjust the baseline, then the standard -- the
economic impact has to look at the 30 years
they've been out of compliance, plus the --
MS. KENT: Not the 30 years. The
economic impact is --
MR. BUCHET: The differential?
MS. KENT: That's right.
MR. BUCHET: In this case --
MS. KENT: That's the issue with that
one.
MR. BUCHET: I think the feeling is that
the industry that's trying to comply is complying
with the most recent MUTCD and the ones who are
out of compliance are out of compliance with the
one that was published in 1970, as well as the one
that is published today and those people shouldn't
be counted because they're bad actors anyway.
MS. KENT: You need to set up a meeting
with OMB and explain that to them. But if you
want to check it out --
MR. BUCHET: We'll invite them here.
MS. KENT: The guidelines for doing
economic analysis are very clear on that point,
costs start running there. The question is if
there's non-compliance -- now, the other question
is if there is no non-compliance and everyone is
already there, there's a whole question about why
are we bothering, but that's a whole other issue.
CHAIRPERSON BURKHAMMER: Marthe, since
we have you here and you have a captive audience,
maybe you'd like to talk a little bit about your
favorite subject.
MS. KENT: Well, it is going very well.
We're back by popular demand next week for our
last week of hearing for ergo, nine weeks of very
intensive hearings. Next week in Washington we'll
be running until 9:00 or 10:00 in the evening,
maybe a little later a couple of evenings, so that
people have time to talk.
You won't be surprised, this is a
controversial issue, very, very strong opinions
and views and data being submitted by lots and
lots of people. I'm very impressed, actually, at
the quality of the information that's coming in.
We obviously have a lot of work to do,
but if you want to know how fast can we move when
we have to move, unless -- well, we're going to
make it this year, unless we're stopped.
Obviously, that's always possible, by
appropriations or whatever, but the internal
processes have been set up inside.
We are going to manage that very closely
and I would be very surprised if we didn't send it
to OMB in October, September or October. That's
ergo.
Now, you understand that construction is
not part of that, right?
CHAIRPERSON BURKHAMMER: Yes.
MS. KENT: No part of construction is a
part of that. And literally no part, because
people came in and said well, what about the
office of a construction company, the answer is
no. We're going to make it very clear that no
part of construction is under that rule. So you
can really look forward to that.
Contractors who do maintenance, we are
going to handle all those splinters. I can't tell
you what the verdict is on that yet, but --
MR. RHOTEN: Just a question. You know,
there's going to be -- in our case, we have
contractors who have fabrication shops, they're
going to fall under it, I would assume.
MS. KENT: For those, I would think, but
you know what, give me all your variants because
in the final rule what we'll do is address every
single one of them, in terms of scope and coverage
and that would help us because actually, things
have come up that we never thought about.
CHAIRPERSON BURKHAMMER: What about
contractors that have on-site pipe fab shops or
sheet metal fab shops? They would not fall under
the rule, right?
MR. BUCHET: People are going to be
going to the job site in droves.
CHAIRPERSON BURKHAMMER: Get those fab
shops shut down in town.
MS. KENT: Those issues are really
amazing with this one and people are submitting
stuff, we're evaluating all of it, but it is not
our intention at this point to cover construction
in any form.
CHAIRPERSON BURKHAMMER: I've long been
a proponent of MSD, so I'm probably a lone wolf in
a crowd in construction.
MS. KENT: Steel erection is obviously
your big item for this year. That's taking huge
resources from everybody and we'll continue to do
that.
You all know that we have a health
initiative in construction, but I've spoken to you
about that before and that is bouncing along and
it's continuing to go forward and I know that
you're helping us with lots of those issues and
that's really good.
Nobody has put ergo in construction on
the reg agenda yet.
CHAIRPERSON BURKHAMMER: Any more
discussion?
|
|
(No response.)
|
CHAIRPERSON BURKHAMMER: Thank you very
much. That was a very good presentation and we've
asked Jim for a -- George, we've asked Jim if you
could provide a copy of your slides to the
committee, please.
With that, let's take a 15-minute break
and be back at 2:30. Thank you.
|
(A recess was taken at 2:14 p.m.)
(Back on the record at 2:36 p.m.)
|
CHAIRPERSON BURKHAMMER: Next on the
agenda and the last topic for the day prior to the
public comment period, which we have a public
comment, the Workers' Home Page, OSHA's internet
site. Susan Fleming.
|
|
Workers' Home Page, OSHA Internet Site
|
MS. FLEMING: Hi, everybody. I'm with
the OSHA Public Affairs Office and the new worker
page that we announced last Friday is the result
of a lot of collaboration between many different
groups within the Agency.
This is what the front page of the OSHA
web site looks like now and you'll see that the
lead item is the new worker page. You can go
there by clicking here or by clicking over on the
photo.
Eventually, that photo is going to move
over here as a graphic here and you'll be able to
still click directly off the front page, so let's
go there now and this is the new workers page.
On the left-hand side, scroll down here
a little bit, we have all of the major items that
are included in the worker page. This page is an
effort to bring together in one location, like we
did last year for small business, the particular
items that would be of interest to workers.
We have explanation of worker rights, we
have explanations of worker responsibilities and
employer responsibilities. We have some
discussion about how to make a complaint, what
happens when you make a complaint and then a bunch
of links to places like the regional and area
offices and to our technical links page so that
folks can go and find out other information about
specific topics.
I'm going to take you here, to how to
file a complaint. This is the one thing that's
really new and different about this page, for the
first time we are enabling workers to file
complaints --
MR. BUCHET: Susan, can you handle some
questions from us?
MS. FLEMING: Yes, sure.
MR. BUCHET: With the OSHA regional
offices, would it be possible to do something to
say hi, here's were your labor liaison is and
explain that the labor liaison actually has some
responsibility to outreach to workers?
MS. FLEMING: That might be possible.
What we might could do is put something on there
about just labor liaison. The regional offices
goes -- a number of these links are not -- where
they take you to is not new. For example, this is
a page that's -- I'm going to go to the regional
offices here.
That's simply a page that offers you a
map, so we couldn't put a new page in there, but
what we could do is put something in about the
role of the labor liaison.
MR. BUCHET: I think that would help a
great deal because many, many people have no idea
that they exist and many more that know they exist
have no idea what they can do.
CHAIRPERSON BURKHAMMER: Also, Susan, is
there a way to put a link in there to ACCSH's web
page?
MS. FLEMING: To the ACCSH page? We can
put links into anything. I'm not clear why there
would be one put to the ACCSH page. Do we want
one to all of the committee pages?
CHAIRPERSON BURKHAMMER: This is all
workers in -- oh, I'm sorry.
MS. FLEMING: Yes, this is for all
workers. This is not --
CHAIRPERSON BURKHAMMER: I think you
could link it to every committee, NACOSH and ACCSH
and the Maritime and --
MR. BUCHET: Because each committee has
"x" number of worker representatives on there that
it would be good for the workers to be able to
click to immediately.
MS. FLEMING: Do you want them all
contacting you?
MR. RHOTEN: No, I don't want my name on
there.
MR. BUCHET: At least to find out that
you exist.
MR. RHOTEN: Well, they know I exist.
MS. FLEMING: It would never have
occurred to me to put the committee pages up as a
link.
MR. RHOTEN: It's not that I --
MR. BUCHET: I didn't mean having it
linked to your web site or e-mail, but simply that
there are worker representatives on these
committees.
MR. RHOTEN: Well, I think that's on
there now, that's available to them. This is
supposed to be the workers page, the things he's
interested in. The whole ACCSH committee is on
the regular net, isn't it?
MS. FLEMING: It should be off of the
construction page.
MR. RHOTEN: Yes. It's there already.
MR. BUCHET: My guess is if we can get
workers to the workers page, that anywhere we can
show from that page that there are workers
involved in this process will help them. If you
say okay, you can go find this thing called an
advisory committee and find out there are workers
on it, I think it would just take that much
longer.
MS. FLEMING: Well, that's certainly
something we can take into consideration, if that
is a recommendation of the committee.
MR. RHOTEN: I think it's something that
needs some discussion, maybe later.
MS. SWEENEY: Do you have plans to put
this in or at least connect it to a Spanish
language page?
MS. FLEMING: No. Not at this point.
MS. SWEENEY: I might suggest that you
think about it seriously.
MS. FLEMING: The whole web site -- I
mean, we have a few things in Spanish, but we have
no plans to develop the entire web site in
Spanish. It would be very expensive.
MS. SWEENEY: For example, rights and
responsibilities, it would seem to me that there
is a whole genre of workers out there,
particularly illegal aliens, that don't understand
that they are covered under the OSH Act.
MS. FLEMING: Do they have a lot of web
access?
MS. SWEENEY: Who knows? Libraries, who
knows?
MS. WILLIAMS: Susan, you may not be
able to answer this question, but it seems like
all the good things you have available, and this
is great. Have you ever thought about a media
blitz in the newspapers or something to let
workers and people know the stuff even exists?
Because unless -- many people have
computers and they have no idea that they can get
access to this stuff.
MS. FLEMING: Well, we just put out a
news release on this on Friday. We had a media
round table on Friday announcing the availability
of this page, I'm sure that articles will appear
in the major trade publications about this page.
Whether or not it will go beyond that, I
can't say for sure, but we did put this out. The
news release announcing the availability of the
page is up on the web site and we do have a lot of
journalists surfing the site.
Would you guys like to see how to file a
complaint electronically?
MR. BUCHET: Sure.
MS. FLEMING: All right. Where am I? I
have to find my mouse. Does anybody see my little
arrow? See, I have my technical specialist right
here, John Elgin, who is helping me.
This explains the whole complaint
procedure and he's taking us on. It does indicate
clearly to the worker that if you file a complaint
on line, it will be treated as an informal
complaint, probably handled by phone, fax or in
the case of some state programs, by a letter.
This is what you need to fill out.
MR. EDINGTON: Is that even if it's an
imminent danger complaint?
MS. FLEMING: No. Obviously, there's
some discretion. If they conclude it's a imminent
danger, we also have the toll free line here for
folks to use if they want to report an imminent
danger.
MS. SWEENEY: Is that all explained in
the page before that?
MS. FLEMING: Yes. I'm sorry.
MR. EDINGTON: And this is an anonymous
complaint?
MS. FLEMING: Well, you can certainly
file anonymously, but there are certain fields
that have to be filled out, which include things
like the name of the company and the location of
the company.
It won't let you file the complaint if
you don't because it's worthless to us just to
know that somewhere out in the world there's a
company that is about to explode, so there's
certain fields that have to be filled in.
MR. PAYNE: It could be traced back if
it was not a -- I'm just picturing a company
that's really going to get abused by someone that
doesn't like the way they look or act, you know.
MS. FLEMING: That's always possible.
We are obviously going to check things out, but
this is going to be treated as an informal
complaint, so unless it's an imminent danger,
we're going to do phone fax.
CHAIRPERSON BURKHAMMER: Susan, does
this go to the regional office, the area office?
How does it get --
MS. FLEMING: Actually, it's interesting
the way this works. What it actually does is it
goes to a computer server, a complaint mailbox
where they're all stored and then it is routed
from there to the area office within each state
that has been designated as the complaint handling
office.
That might be Cincinnati for Ohio, for
example, where we have five or six area offices.
The folks in Cincinnati will review it and then
forward it on to the appropriate office.
In most of the states that run their own
OSHA program it will go first to the Federal
office and then be forwarded to the State office,
however California, for example, has said hey,
most of the complaints are ours, send it to us
first and we'll route back to you any that are
appropriate for the Federal office to handle.
MR. PAYNE: Have you received any yet?
MS. FLEMING: Yes. The last time I
checked there were over a hundred. Now, some of
those will be test cases, where people just were
testing the system. I looked at a few of them.
Some of them are typical kinds of complaints that
we get that really aren't us at all.
One of them was from someone who said
why can this company ask me to work for 12 hours
and not provide a lunch break. We don't handle
that and there will be others like that.
But there were also some complaints that
to me, not as a compliance safety and health
officer but as a public affairs person, looked
like they might very well be legitimate.
MS. SWEENEY: As a public servant, would
you in fact route that to Wage & Hour, that kind
of request?
MS. FLEMING: That should be routed by
the folks who actually handle it in that area
office, yes.
MR. BUCHET: Does this process allow the
person filing it to say I want to keep my name
confidential?
MS. FLEMING: Yes, it does. In fact,
that's the default value. You have to un-check
that if you are willing to have your name
released.
CHAIRPERSON BURKHAMMER: Harry?
MR. PAYNE: I'm curious as to why you
would characterize something that takes a fair
amount of commitment to do as an informal
complaint, just out of hand, and it has some other
action necessary to put it into some higher
category.
MS. FLEMING: I'm not sure that I'm the
best person to address that. I can attempt to do
it, but you probably really want to talk to the
compliance staff.
We try to handle a lot of complaints
informally, if possible. That enables us to be
sure that we get as quickly as possible to the
ones that are the most serious and often things
can be handled informally.
But obviously, the employee can always
say I insist on an on-site inspection or if we
determine, based on the fact that it's an imminent
danger situation, we will inspect.
MR. DEVORA: Is anyone going to track
the number of informal complaints? Is there going
to be a rise, based on the only system that we
have, now we have this system, if there's a 50
percent or 80 percent jump?
MS. FLEMING: Charles was asked that
question at the news briefing we held last week
and his response was we expect there may be
somewhat of an increase in complaints. That's
typically what businesses find when they develop
some kind of an on line system, whether it's
ordering socks or whatever.
So there may be somewhat more
complaints, but the feeling is that maybe then
we've reached some folks who weren't able to use
the other systems.
MR. DEVORA: The danger that is I see as
a contractor is a telephone call is a commitment
also, there's a voice, there's a number, there's
all kind of -- that takes a commitment for
somebody to file a complaint.
This is a faceless, nameless way to
access a company or for OSHA to access, gain
entry. Maybe it is, maybe it isn't. There's no
verification for whether it's a legitimate
complaint or not.
MS. FLEMING: No, that's not true,
because -- can you bring up the message that comes
up? If I were submitting this complaint against
your company, I would get back a message saying
Susan Fleming, we received your complaint, your
complaint has been forwarded to the Washington,
D.C. office or whatever and you should hear back
from the Washington, D.C. office.
So the office is going to -- the OSHA
office is going to call me and verify what I've
said, perhaps get additional information about
this, so there will be some checking up with the
complainant before OSHA comes out and visits your
company or even phones and faxes you.
MR. DEVORA: You know, I'm just thinking
in terms of even what's up on the web now for
inspections. Some of the information is not
correct and it's almost an act of Congress of get
that changed or removed.
MS. FLEMING: But this is not going up.
We're not going to post anything that says there
have been ten complaints against Mr. Jones'
company.
MR. MASTERSON: I don't believe that.
MS. FLEMING: Well, all I can say to you
is that you have a lot more faith in our data
system than I do, in terms of the amount of
information that it keeps.
MR. MASTERSON: The one good thing I see
about this is if we can use the web to file
complaints, we can definitely use the web for
MSDSs for the HAZ COM standard, file them around
the country.
CHAIRPERSON BURKHAMMER: We're doing
that now.
MR. MASTERSON: I know we are, but
forward it and forward it and forward it.
CHAIRPERSON BURKHAMMER: What's going to
happen in the area office in the regions where the
handwritten complaints are backlogged? I know
Denver has a backlog of one to two years, do they
just add these to the back of their list?
MS. FLEMING: I really don't know. I'm
here to talk to you about the worker page and how
that works. That's a big compliance question to
ask. It's out of my bailiwick.
CHAIRPERSON BURKHAMMER: Okay. Good
response. Go ahead, Susan. Thank you.
MS. FLEMING: Are there any other
questions?
MR. MASTERSON: I notice that the page
is not secure.
MS. FLEMING: John?
MR. ELGIN: Okay. No, actually, what
this is doing is the browser is set up where it
doesn't come up on the screen. It is actually
staying within OSHA because while this is on the
public web site, it's going straight to the e-mail
system.
MS. FLEMING: Are you telling him it's
secure?
MR. ELGIN: Yes.
MR. MASTERSON: It's secure, but it's
still going via the internet to the OSHA base?
MR. ELGIN: That's correct. It's coming
from the public OSHA page where it's being e-mailed to -- well, it's actually going directly to
the office or if it's going to another e-mail
server within OSHA and then to the office. I
don't know the exact routing.
CHAIRPERSON BURKHAMMER: Larry.
MR. EDINGTON: Thank you, Mr. Chairman.
First, let me say I certain, on behalf of myself
and the International Union of Operating Engineers
and all of our members, but I think all American
workers thank you.
When OTI was in here, or rather when
Salt Lake was in here a year or a year and a half
ago I was particularly critical that a great deal
of effort had been put into assisting employers in
terms of understanding their rights and
obligations, but very little work had been done
for workers.
I think this is a step that's long
overdue and I applaud you for that. We first
started looking at this last Friday ourselves. We
currently have linked it from our own home page
for our members and our local unions.
Fortuitously, we had our general
executive board meeting in town the first part of
this week and we did a demonstration for them,
walked them through it.
The point I would make about it is that
the real value of this site I think is not just
the ability to file a complaint on line, but
rather it's a way through which to empower workers
with knowledge, to improve their own safety and
health conditions on the job and to work with
their employer rather than against their employer.
I think that's the kind of value that
the Agency needs to take great pains to explain.
This is to help workers, it's not to hurt their
employers. It's to help all of us improve job
site health and safety and everything that you can
do to put information up there that's necessary
for workers to understand both what their rights
are, what constitutes a safe and healthful work
place, that ought to really be the focus of this.
Yes, it's important to have the ability
to file that complaint, but most importantly, it's
to have the information.
CHAIRPERSON BURKHAMMER: Thank you,
Larry. I think most members of the committee
would agree with you. It's a long time coming, we
think you've done a wonderful job here and we're
not -- please don't take the comments of the
committee as being critical because we're not,
we're just really pleased that we've finally got
something out that the workers do have an
opportunity to get into and utilize.
MS. FLEMING: And all the technical work
was done by OTI and IT on this, too.
CHAIRPERSON BURKHAMMER: That's great.
We appreciate it. Any other comments from the
committee?
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(No response.)
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CHAIRPERSON BURKHAMMER: Great. Thank
you very much.
Well, we've moved through our agenda
fairly quickly. We have one public comment
request and at this time, Charlie, would you like
to take the microphone and present your comment,
please? State your name and organization for the
record.
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Public Comment
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MR. MARESCA: Charlie Maresca,
Associated Builders and Contractors. Thank you,
Mr. Chairman, for this opportunity.
On February 11 ten construction trade
associations, including mine, forwarded to this
committee, to the chairman and to every member of
the committee, a report on the MSD booklet that
now appears on the ACCSH home page.
That report was highly critical of the
booklet and in fact, concluded that it could be
more harmful than helpful.
In our cover letter, we recommended that
the booklet be removed from the home page. To
this point, we have not had a response from the
committee, from any member of the committee, from
the workgroups and we wondered whether we would be
getting any kind of a response to that report.
We think that the report was certainly
well credentialed, the report writers are well
credentialed and we think it's important enough
that it merits a response.
CHAIRPERSON BURKHAMMER: I received it,
I've read it. I did not discuss it with either of
the workgroup co-chairs. I will take it upon
myself to do that prior to the next meeting and
ask the workgroup to review it. Michael?
MR. BUCHET: Mr. Chairman, we have
received that and as I think you are aware, Mr.
Maresca, we received one other set of comments at
the tag end of this past workgroup and have
indicated that that will be discussed at the next
workgroup meeting. We will take whatever other
comments come in and discuss them at the next
workgroup meeting.
MR. MARESCA: Our concern is that the
discussion of ergonomics on this committee and in
the workgroup is not obviously -- is obviously not
taking place in a vacuum and that on occasion,
that report -- the presence of that report on the
web site indicates support for some kind of rule
or acknowledge of best practices in the
construction industry and we think that that
conclusion would not be supported by the
committee, first of all, and it certainly doesn't
seem to be the intent of the booklet.
But it is the conclusion that's being
drawn in the public and we think that because the
advice that we have received from ergonomists is
that it is not a helpful booklet, it should be
removed.
CHAIRPERSON BURKHAMMER: Michael?
MR. BUCHET: I'm not sure I heard
correctly. The contention is that this discussion
and the workgroup's work product has not been
taking place in a vacuum? Is that what I
understand you to represent?
MR. MARESCA: I think that's correct,
yes.
MR. BUCHET: Then please explain the
different opinions between your two letters,
because one I believe accused the workgroup of
working behind closed doors to create the document
and now we're having a complaint sent to us that
it's being created in the open and neither method
is acceptable and I would like to find out which
method is acceptable before we continue to discuss
it in the workgroup.
CHAIRPERSON BURKHAMMER: I don't think
the public comment period is an appropriate place
to discuss that or have that on the record. I
think at the next workgroup meeting, Charlie, if
you would be so kind as to come and maybe we could
have a debate or a discussion during that time on
whatever the issue is that the co-chairmen want to
raise, rather than doing it in a public comment
period. Anything else, Charlie?
MR. MARESCA: No, that's all I have.
CHAIRPERSON BURKHAMMER: Okay. Thank
you very much. We have one more public comment.
James Suttle, the executive vice president of HDR,
Inc.
MR. SUTTLE: Thank you very much, Mr.
Chairman, and thank all of you for your
hospitality, for me being your guest today.
My name is James Suttle, I'm executive
vice president, vice chair of the board of
directors for HDR, Incorporated. We are the 28th
largest architect/engineering company in the
United States, having some 2,600 employees
scattered in 55 offices from coast to coast.
We got into safety through an
unfortunate incident for us at the Greater
Pittsburgh Airport in 1997, during the demolition
of the old Pittsburgh Airport terminal. We were
the engineers of record, working for the Allegheny
County Aviation Administration.
There was a lot of head scratching about
that incident and as I went on the speaker
circuit, my speech was entitled "A Wake Up Call
from Hotel OSHA," so in the last three years I
think we have moved quite a bit as an architect/
engineering company in taking a leadership role
and trying to be an example of what to do in
addressing safety instead of, as many of my
colleagues do sadly in the industry, burying their
heads in the sand on the advice of their legal
counsel.
Within 60 days of our settlement with
OSHA, I fulfilled my promise to OSHA that we would
have a safety director on staff, James Wilcott
joined us. We allocated some $2 million extra
dollars into our budget and began putting together
what is now two volumes of a safety manual
addressing some 36 strategic areas that are
indicative of what our employees are involved in,
probably the biggest ones are fall protection and
confined space entry.
Our attitude as we started this was
quite simply this. We're basically a white collar
company, we're architects, engineers. We're hired
in the design phase by an owner to produce
drawings and plans, but we do go to the field on
occasion, so we wanted to be right with safety any
time an HDR employee left the building.
We are extending that inside the
building so that we're right with safety any time
an HDR employee comes to work, whether it's inside
or outside.
We still have much to do and being the
anal-retentive engineer that I am and trying to
figure out what all this means, we have found
quite a few holes in the whole equation as our
industry provides these services to the public and
to owners around the country.
Quite frankly, we have a lot to do and
we need to be part of your solution and you need
to be part of our solution.
I have found that architects and
engineers do not have in our curricula at the
college level a safety address. We're there on
the design, over designing of the stresses and the
strains in the steel members or whatever else, but
we're not there in addressing safety as part of an
integrated part of each design course and that
needs to happen.
So we need your help as we work with
ABET on the engineers, with AIA and others on the
architect side to influence curriculum for the
next generations of architects and engineers that
come into the field.
On the owner's side, we are finding that
owners do not hire us for safety. That is
starting to change a little bit, but there's so
much that needs to be done. The issue is, quite
frankly, one of liability, but I think we can get
over that. We need to belly up to the bar and say
that there is a safety component here, Mr. Owner,
we're all into it, we cannot continue putting a
sentence in the specs that says "Safety is the
responsibility of the contractor," end of
discussion.
So some of our owner clients are
addressing that and we are taking on
responsibilities as the owner's rep and getting
paid for that particular function, to either
monitor, train or provide some other discussion
that goes on on these sites.
But there's still so much more to do and
so the bottom line of this particular part of my
statement is that we need your help together to
begin to influence owners, private as well as
government, that safety is to be part of the scope
of work for architects and engineers.
I do have one reason why I personally am
making sure that our company is right with safety
and that our industry, architects and engineers,
begin to wake up to this.
Our world is changing, we're moving into
design/build. When we move out of traditional, we
are going to be partnered with construction
companies and we together will have joint
ownership of the safety aspects on projects, so
this is another area that's coming.
I do thank you for the opportunity to be
here. I came strictly to learn and to observe.
I've done that and I've enjoyed the time with you
and thanks very much for having me.
CHAIRPERSON BURKHAMMER: Thank you.
That's certainly a breath of fresh air, to hear an
architect trying to accept responsibility rather
than pass it off to somebody else.
In the past when we have sat on -- I
personally have sat on various committees with
representatives of the architects and engineers
community and being an engineer myself, they have
always been adamant that they did not and did not
want to accept any liability or responsibility for
safety in design or any of that kind of stuff and
to hear you come and completely change that
scenario is truly reflective and I appreciate it
very much. Felipe?
MR. DEVORA: I just wanted to add on
those comments also that is very refreshing. As a
lot of our work is negotiated and is design/build,
typically I'll sit in on the meetings and I'll see
what the architect wants, but when we do get to
the safety aspect of it, I'll invariably ask the
question would it be too much to supply some
anchor points or can we include something in these
shop sheet drawings where everyone can work off of
and typically I get that blank look like aren't
you the safety guy, we've got to leave now, but
you take care of that.
So that's really -- I can't tell you how
important it is, how many architects I've sat down
with, we even had AIA representatives from our
committee come speak to the safety committee and
quite frankly, I think the consensus is that
safety is someone else's problem and that quite
frankly, if they had to design safety, they
probably wouldn't be winning any awards. That was
a comment from an architect who said that.
MR. SUTTLE: I still have a lot of
heated discussions with our in-house attorney, but
we are making progress. I'm just one voice, we
need to make this hundreds of voices.
The next meeting of our large firm round
table of the American Consulting Engineers Council
will be in August. I've already talked to a few
of you, I will be calling a few more of you. We
do want to put safety on that particular agenda
and we'll be planning that in the next four weeks,
so you may get a fresh phone call from me about
helping us to talk through this issue some more.
I appreciate the time, Mr. Chairman.
CHAIRPERSON BURKHAMMER: Thank you very
much. That concludes our business for today. I
will not be here tomorrow, I have a command
performance for my employer that I have to attend.
Mr. Buchet will act as acting chair tomorrow and
with that, we'll adjourn for the day. Well, wait
a minute, hold on.
MR. BUCHET: No, no. You're not going
to do that to me.
CHAIRPERSON BURKHAMMER: Oh, I'm not
going to do that to you. Would you like to speak?
MR. BUCHET: I'd love to speak.
CHAIRPERSON BURKHAMMER: Thank you. Go
right ahead.
MR. BUCHET: As you remember, you asked
me to speak.
CHAIRPERSON BURKHAMMER: Oh, that's
right. Would you please give the committee a
quick summary of the Chicago ACCSH meeting, for
those of us that weren't in attendance?
MR. BUCHET: I can very briefly, Mr.
Chairman, thank you. We had a motion in the
meeting minutes that we discussed this morning say
that we recognize the great contribution of the
Construction Safety Council and that we were going
to come up with some recognition for them for
hosting us in February in Rosemont.
The reason I didn't want you to leave,
Mr. Chairman, is I'd like to find out if I write a
draft letter for a joint signature of yours and
the Assistant Secretary's, would you find that
acceptable? You get to edit it, of course.
CHAIRPERSON BURKHAMMER: Yes, I would.
MR. BUCHET: Good. With that, the
reason we want to write the letter is that the
Construction Safety Council, the Chicago
Construction Safety Council and the executive
director, Tom Broderick, invited us to take ACCSH
on the road and run it in conjunction with his
conference.
His conference has grown from relatively
small beginnings to over 1,500 attendees and 110
or 115 exhibitors this year. A number of us made
it, some very interesting exhibits, the laborers
had a training bus, the operating engineers were
there, Graham Brent had the National Commission
for the Certification of Crane Operators in a
grove set up inside the convention center. They
didn't operate it, but they showed how you would
have to maneuver a load through the cones and
barriers without knocking over the tennis balls to
pass the test.
Sanitation is gone, but there was a good
exhibit on sanitation which will jump us to
various presentations that were made,
presentations at the conference and presentations
in the advisory committee meeting and I'm sorry
that Mr. Cooper isn't here, but Mr. Cooper and Ms.
Williams presented the Assistant Secretary with an
indelible reminder of the desire of this committee
to press forward on a sanitation standard and that
was a model -- you can't say Port-a-Potty, because
that's not the right brand name, field sanitation
structure, suitably labeled from ACCSH.
Part of that story is to show that a
good time was had by all, as well as a rewarding
time. I think the chance to meet people from the
industry that don't get to travel to Washington,
to get their input as well as to present ourselves
and OSHA was a great and mutual benefit. Thank
you, Mr. Chairman.
CHAIRPERSON BURKHAMMER: Thank you, Mr.
Buchet. I appreciate that. I'm sorry I forgot
you until the bitter end.
Please draft that and send it to me for
editorial and comment and then I will forward it
on to the Assistant Secretary and I think it's
great that we do recognize Tom and the efforts
he's doing and the fact that he did invite ACCSH
out there.
I think, from what I understand, even
though I wasn't there, it was an excellent meeting
and an excellent representation, so for those of
you that went, thank you.
One of the things I want you to think
about tonight, tomorrow Michael is going to come
up with some dates for our next two meetings, so
if you could look at your calendars tonight and be
prepared tomorrow to discuss that, I'd appreciate
it.
Also, there's a photo opportunity with
the Assistant Secretary tomorrow, so if any of you
want to have your photo taken, please wear a tie.
I don't think it would look too good with him in
one and the others not.
With that, thank you very much and we're
adjourned.
(Whereupon, at 3:13 p.m. the meeting was
adjourned, to reconvene Friday, May 5, 2000 at
9:00 a.m.)
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C E R T I F I C A T E
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This is to certify that the foregoing
proceedings of a meeting before the Occupational
Safety and Health Administration Advisory
Committee on Construction Safety and Health
(ACCSH), held on May 4, 2000, were transcribed as
herein appears and that this is the original
transcript thereof.
_______________________
Melinda J. Metcalf
Transcriber
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