BEFORE THE UNITED STATES DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
In the Matter of: ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
Tuesday, August 27, 1996
National Institute for Occupational Safety and Health
Spokane Research Center
315 East Montgomery
Room 232
Spokane, Washington
The above-entitled matter came on for hearing, pursuant to adjournment at 9:10 a.m.
COMMITTEE MEMBERS:
Employee Representatives
KNUT RINGEN, Chairperson
Director/Center to Protect Workers' Rights
111 Massachusetts Avenue, N.W.
5th Floor
Washington, D.C. 20001
(202) 962-8790
STEPHEN D. COOPER
International Association of Bridge,
Structural & Ornamental Iron Workers
1750 New York Avenue, N.W.
Suite 400
Washington, D.C. 20006
(202) 383-4829
WILLIAM C. RHOTEN
United Association of Journeymen & Apprentices of the Plumbers & Pipe Fitting Industry
901 Massachusetts Avenue, N.W.
Washington, D.C. 20001
(202) 628-5823
WILLIAM J. SMITH
Director/Safety & Health International
Union Operating Engineers
1125 17th Street, N.W.
Washington, D.C. 20036
(202) 429-9100
LAUREN J. SUGERMAN
Executive Director Chicago Women in Trades
220 South Ashland Avenue
Chicago, Illinois 60607
(312) 942-1444
Employer Representatives
STEPHEN CLOUTIER
Safety/Loss Control Manager
J.A. Jones Construction
J.A. Jones Drive
Charlotte, North Carolina 28287
(704) 553-3574
ROBERT MASTERSON
The Ryland Group
11000 Broken Land Parkway
Columbia, Maryland 21044
(410) 715-7240
OWEN SMITH
Anzalone & Associates
12700 Foothill Boulevard
Sylmar, California 91342
(213) 877-8291
Public Representatives
ANA MARIA OSORIO, M.D., MPH
Chief, Occupational Health Branch
California Department of Health Services
2151 Berkeley Way - Annex 11
Berkeley, California 94704
(510) 540-3472
JUDY A. PAUL
American Association of Occupational Health Nurses
1200 Southeast 98th Avenue
Vancouver, Washington 98664
(360) 253-7113
Federal Representatives
DIANE D. PORTER
Associate Director NIOSH
1600 Clifton Road
Atlanta, Georgia 30333
(404) 639-2170
Committee Contacts
BRUCE SWANSON
(202) 219-8644
TOM HALL
(202) 219-8615
JULE JONES
(202) 219-8615
ABE MUTAWE
OSHA
1111 3rd Avenue
Suite 715
Seattle, Washington
P R O C E E D I N G S
DR. RINGEN: Good morning. We're glad to be here in Spokane and want to thank the folks at the Spokane Research Center
for helping to organize this meeting and for arranging for us to make use of their facilities. Also thanks to Jule
Jones and Tom Hall and Bruce's staff in Washington for taking care of all of the arrangements to get us out here and
to Diane Porter and the people at NIOSH for helping out and making the local arrangements here. Appreciate it very
much.
We have three new members of the committee since we were here. Actually the committee is now fully populated by
members again, but only one of the new members is here, Owen Smith representing the painting and coating contractors
-- painting decorators, I guess it is -- from Los Angeles. We're very pleased to have you join the committee.
Also Mark Brown, the commissioner of the Washington State or director of the Washington State Department of Labor and
Industries is a new member, and Harry Payne, the director or the commissioner of North Carolina Department of Labor,
has also been appointed. Neither of them could be at this meeting.
Our procedures, Owen, is that we're informal. We go by first name unless there is any objection to that, and we try
to make decisions by consensus, and by and large, we've been able to do that so far.
I'd like to take a moment to have the people who are here in the audience introduce themselves at this point in time
so we'll know who's here. We'll start with you. Oh, in the front?
MS. FOOTE-SOIZA: Okay, yes. My name is Anne Foote-Soiza. I'm here representing Mark Brown and Washington State
Department of Health Services, and I'm very much involved in the construction industry in the State of Washington.
MR. SOTELO: Mike Sotelo. I'm representing AGC of Washington and AGC of America, and I'm the co-chair of the
ergonomics committee for safety and health. I work for a construction firm.
DR. RINGEN: The red shirt, next.
MR. WARREN: I'm Steve Warren. I'm with Westinghouse/Hanford Corporation or Company of Richland, Washington.
MR. HOEKZEMA: I'm Bob Hoekzema. I'm the science advisor here at the research center. So if you have any questions
here or need some help, let me know. I'll try to get it taken care of.
MS. HARING-SWEENEY: I'm Marie Haring-Sweeney. I'm the construction coordinator at NIOSH.
MR. TAYLOR: I'm Dennis Taylor with the Boeing Company, Seattle, Washington.
MS. SCHUSTER: I'm Marilyn Schuster with Oregon OSHA.
MR. PALMER: I'm Bill Palmer, Associated General Contractors, Oregon-Columbia Chapter.
MR. BROWN: I'm Ken Brown, the National Working Contractors Association in Chicago.
MR. PULVER: Bill Pulver. I'm with Costange, Brooks & Smith in Atlanta.
MR. BAGLEY: Jay Bagley from the Industrial Commission of Utah, the director for OSHA in the state.
MR. MARESCA: Charlie Maresca, Associated Builders and Contractors National Office.
MS. SOLOMON: Regina Solomon, National Association of Homeowners.
MS. HARRIS: Claudia Harris, National Association of Plumbing and Heating Contractors.
MR. MILLER: Tom Miller, senior safety engineer for Westinghouse/Hanford Company of the Hanford Nuclear Division.
MR. DAVEY: I'm Larry Davey, publisher of the National Office of the Construction Directory.
MR. LAPPING: Jim Lapping, special assistant to the national office of OSHA.
DR. RINGEN: Thank you. Before we go any further, I would like to take care of the minutes from the last meeting. Has
everybody reviewed the minutes that you received from the last meeting?
(No response.)
I had a couple of spelling and grammatical corrections to make which I'll just give to Bruce, and we don't have to go
through. Are there any other changes that anybody has of these minutes?
(No response.)
I have one correction that I wanted to have done in the verbal transcript which I receive after each of these
meetings and I go through. The verbal transcript had to do with our discussions of the record keeping issue at the
last meeting. You remember we had a fairly long discussion, and we weren't very pleased with what we were hearing,
and at that time we had a motion that we -- the motion was actually that we didn't believe in the exercise that OSHA
was engaged in. The transcripts read in favor of this. There was a chorus of ayes, and opposed to it, they said, was
a chorus of nays. I don't believe there was any opposition to that. Everybody was in agreement with it, so I'd just
like the transcript to reflect that agreement.
That's all I have on the minutes. Anybody else have anything? Mr. Cooper?
MR. COOPER: Mr. Chairman, we used to get a copy of the transcripts, so we could review particular areas that we had
personally discussed on this committee over the years. We no longer get a copy of the transcript. It would be good
for us to get copies of the transcripts. The cost would be only in reproduction because you're already paying for the
transcripts. I would like to have a copy of the transcripts like we've had over the last 20 years which OSHA, I
guess, no longer provides.
MR. HALL: If you request it, we'll send it to you.
MR. COOPER: Thank you very much.
MR. HALL: But the time, effort and cost of mailing of the rather bulky item, unless people request it, we have not
been sending it out for the past, I'd say, five or ten years, but if you request it, we'd be glad to send it to you.
MR. COOPER: Thank you.
MR. HALL: Anybody else that wants a copy of the verbatim transcript, I'll be glad to send it to them. Just let me
know.
DR. RINGEN: Thanks, Tom. Any other comments about the minutes? Do I have a motion about the minutes?
MS. PORTER: I move that we adopt the minutes.
MR. COOPER: Second.
DR. RINGEN: We have the motion to adopt them. Any discussion of that?
(No response.)
All in favor?
(Chorus of ayes.)
Anybody opposed to that?
(No response.)
Thank you.
The purpose of meeting out here in Spokane was really for two major reasons. The first was that we wanted to see more
about what the state plans are doing. In Washington there is a sense that we get a very narrow perspective on the
issues that we're looking at, and rarely do we hear anything about what the various states are doing on the issues
that we're involved in. There's been the sense of some that also OSHA doesn't pay that much attention to what the
states are doing. For that reason, we have aimed to try to figure out how to better get the view of both the OSHA
plans in the states where the states run their OSHA plans and also from the constituents, the employer and employee
constituents in those states about how they view the way that these state plans are run. So we're going to hear
something about that from a number of people who have come here today from as far away as Utah, from Oregon, from
Washington. We appreciate you taking the time to come. This morning we'll hear some from the state plan
representatives, and right after lunch we'll hear something from the employer and employee representatives.
That's something that I'm very excited about. I think that there's a lot of interesting things that goes on in the
states, and I know at least from the perspective of the people that we represent, there's a lot of enthusiasm for the
state plans. So I look forward to that.
The second reason that we're here is to visit this research center, which for a long time has been run by the Bureau
of Mines. It's a research center for mining safety and health, and it's considered to be an outstanding facility in
that regard. That facility is now being transferred over to the National Institute for Occupational Safety and
Health.
It's been our aim with this committee to also broaden its scope to start reviewing more what was goes on in the area
of research. An external review of NIOSH's construction program a year ago or so recommended that we do that, and
it's as a follow-up to that activity, something that NIOSH is very enthusiastic about and has helped us with, that
we're here, and we'll hear quite a bit today as the last agenda item about the status of NIOSH's construction
research program, and also then we're going to see what they do at this facility. We're going to have a tour of the
facility, and it's my hope that with our help and enthusiasm that this facility can become more of a research
facility, a national resource that deals both with mining and construction safety and health research since obviously
there are plenty of similarities between the two industries. So as a researcher, which I'm primarily, that's
something that I'm very excited about.
We will have a tour of the facility this afternoon at the end of it. It's a very large facility. We're only here in
the offices in the back. There's a lot of stuff underground. There's a mine that we're going to visit, and we need a
show of hands here for roughly how many people here intend to participate in the tour of this facility afterwards so
that they can make plans.
(Show of hands.)
MS. PORTER: Okay, thanks.
DR. RINGEN: And as this facility expands beyond its focus on mining, I think it's worthwhile for those of you who are
from state agencies to give some thought as to how this facility can benefit the state programs that are represented
here as well.
The other thing that we will be doing today, we will be holding some working group meetings, particularly the safety
and health program working group will be meeting again during lunch, and I think we've arranged for sandwiches to
come in, which I suspect we'll have to pay a little bit for or something.
MS. PORTER: Five dollars.
DR. RINGEN: Five bucks for lunch, and I think we have enough for everybody here, including those of you who are in
the audience, so hopefully you'll stay for lunch and participate in our working groups and that kind of thing.
That's about all I have in terms of introductory comments. Diane, do you want to say something about the facility and
from NIOSH?
MS. PORTER: We're very excited that you guys decided to be -- the inconvenience of coming out here, but I think it's
great for the committee to get together, get away from D.C. and look at some real-life stuff that's going on.
The facility here is very excited and enthusiastic about the notion of expanding beyond their current mining research
program, and you will see when we do the tour today a lot of the similarities. They're doing some great research in
roof collapses and hoisting and cable strength and things that relate to mining but certainly are transferable to the
construction industry.
They have a great health communications and training program that you'll see when we go down and see the mine where
they train students starting, you know, elementary school and part of the teachers' curriculum in training in the
sciences, and it's a very exciting program and something that we hope to transport to the rest of NIOSH when we get
ready to do it, so thank you for coming.
DR. RINGEN: The other thing that Diane and the people here have arranged for you, again for those who are interested,
tomorrow after we adjourn at noon, there will be a visit to a construction site outside here where they have some
exciting things going on.
MS. PORTER: Correct, right, and there's also dinner tonight at 7:00 at Shenanigan's, which is the seafood restaurant
that's right behind the hotel where we are, so anybody that's --
DR. RINGEN: At 7:30?
MS. PORTER: At 7:30 is fine.
DR. RINGEN: Great.
MS. PORTER: Anybody that's interested.
MS. OSORIO: I have a quick question. How many other research sites to NIOSH acquire when they took over Bureau of
Mines?
MS. PORTER: We have this one here in Spokane and one in Pittsburgh. It's actually in Brewston, Pennsylvania.
DR. RINGEN: We'll hear more about that later today.
Okay. Any other introductory comments, observations, whatever?
(No response.)
In that case, Bruce, why don't you lead off with what you have to say about the construction office and where we're
at.
MR. SWANSON: Okay. Several things I'd like to do this morning. First and foremost is to respond to some guidance that
we received from Dr. Ringen; secondly, the comments of the Bridge, Structural and Ornamental Iron Workers Union as to
what DOC should be ready to report on at this meeting and maybe perhaps set a pattern for future meetings. I will do
that. I will go through some data I'm happy to share with you, and then we will also have a presentation by Mr. Larry
Davey of our office.
What is that noise?
DR. RINGEN: I don't know. Is that you?
MR. COOPER: Yes.
MR. SWANSON: Is that what they have on ball teams?
MR. COOPER: Yes.
MR. SWANSON: A Baltimore Oriole thing?
MR. COOPER: Yes.
MR. SWANSON: We will be making a presentation to ACCSH of our subpart M, the fall protection. Larry Davey will do
that for us.
If we can get this overhead to work right in a few minutes --.
(Pause.)
Has everyone seen Thomas Jefferson's home at Monticello where he's got that clock in the central foyer and he's got
these chimes on it and the thing doesn't quite fit the home, so he had to cut out a hole in the floor, and the thing
drops down in the basement? You inherited this, I'm sure.
MR. COOPER: Is that part of your report?
MR. SWANSON: Yes. Mr. Cooper asked that we provide the committee with data on most frequently cited standards, the
number of CSHOs by region, number of 11(c) investigators by region, number of staff in the Directorate of
Construction, DOC staff functions and projects that DOC is currently involved in.
Let me start with a breakdown on the Directorate of Construction. This is with more specificity than you've had in
the past.
We have a directorate now with 28 employees, recently added four employees, one of the only directorates in
Washington that Assistant Secretary Dear thought it appropriate to add staff to the national office. Most of the 90
some percent of the rest of the staff was staff positions that were allowed after our FY-96 budget finally came
through and were all field positions. How did Joe put it? Where the rubber meets the road, but he was kind enough and
thinks enough about the new directorate to give us four new positions.
There's the director's office, director or deputy director, one program analyst and one secretary. We have an office
of construction standards and compliance assistance which has a manager, five safety and health occupational
specialists, one civil engineer and one secretary. We have an engineering office which we've -- the old construction
and engineering shop also had the same staff, one manager, four civil engineers, and we have an office of
construction services with a GM-50 manager, four safety and health occupational specialists, one industrial
hygienist, one economist and two administrative personnel.
This is the office that's been expanded quite recently. Three of the additions, including Jule Jones here, were added
to that staff. Jule is from the field. We brought another senior compliance officer out of the state of Texas and
added to our staff. We added an industrial hygienist, a technology that we did not have in DOC, from inside the
national office another director added to our staff and then a deputy director.
As far as the mission -- and I won't go into the full mission statement, but if I can just skip down and give you
highlights of the mission and function statement of the Directorate of Construction, and we'll expand upon any item
that a question indicates you'd like to see expanded upon. I'll be happy to do that.
We do safety standards and regulations for the construction industry, not health, safety. We do construction
compliance guidance and assistance. We're responsible for technical services and engineering safety, industrial
hygiene and statistical analysis in the construction industry. We coordinate with the directorate of federal/state
operations on construction training, education, consultation and outreach. We coordinate with the solicitor's office
on legal decisions, interpretations, egregious or other litigation and significant cases. We review any and all
construction related issues, documents to insure that they are responsive to the construction industry and are
capable of the field implementation in our industry.
We insure that stakeholders are adequately informed of activities affecting the industry. We maintain a liaison with
stakeholder groups and encourage their participation in the rule making process. We prepare construction related
reports on work practices, procedures and abatement methods. We participate and coordinate with OTI in Chicago in the
planning and development of all construction related goals and objectives.
We evaluate the effectiveness of construction targeting programs. We provide statistical and analytical support to
aid in long-term planning and analysis for activities in our industry, and we coordinate with FSL and federal/state
operations to assure state plan partners are given the opportunity for involvement in any construction related issue.
A listing of current projects as per the request; in the office of construction services we are working with the
National Association of Home Builders on a home builders booklet. We are working on the 1910-1926 reduction project,
removing the "redundancy" in the standards between 26 and 1910. We are currently analyzing problems with
the tunneling standard in order to enable us to create a compliance directive and/or to recommend an amendment to the
standard as it now stands. We are creating a compliance directive for the new scaffolding standard which will
incidently be out this week in the Federal Register.
We are monitoring the roofing partnership pilot program in region 5, the Chicago region, a partnership pilot that was
just signed off on within the last several weeks.
We are reviewing significant cases prior to the issuance of a citation. A significant case by OSHA's definition is
over $100,000 in proposed penalty.
We are performing miscellaneous outreach activities working with stakeholders to provide assistance on various
smaller compliance issues. We're developing the new construction resource manual. We have an asphalt fumes project
underway which will be a voluntary program, including OSHA, NIOSH, contractors, the unions, several trade
associations, to encourage compliance with related health issues in those industries that do paving and roofing where
workers are exposed to asphalt fumes.
We're working on a special emphasis program for silica, special emphasis program for lead, and we are addressing
varied instruction compliance issues such as the utility of rebar caps as protection from impalement hazards. In the
office of engineering we are currently handling 11 cases in conjunction with various area offices in the country that
the case -- the proposed enforcement action was complicated enough where the field office needed on-site engineering
support from our shop.
In the office of construction standards and compliance assistance we're working subparts M, L, R. As this committee
knows, safety and health program for construction will soon be handed to us and confined space for construction will
soon be handed to us.
In answer to the request for numbers by region of compliance officers and 11(c) officers, I'll just run through
thusly. Region 1, which is Boston, has 109 total compliance officers and five total 11(c) officers. Now, that's 11(c)
investigators and an 11(c) supervisor.
For the rest of the regions I'll just give you two numbers. The first number will be total CSHO. Second number will
be total 11(c). Region 2, 159 and 7; region 3, 106 and 5; region 4, 153 and 13; region 5, 188 and 10; region 6, 143
and 7; region 8 was 45 and 3; region 9, San Francisco is 18 and 1; region 10 is 14 and 0.
Did you ask on Denver?
MR. COOPER: We're going to get a copy of this, aren't we, Bruce?
MR. SWANSON: You will get a copy of it. Yes, sir.
MR. COOPER: Thank you.
MR. SWANSON: Do you have those overheads? Then I shall move. The ten most frequently cited construction standards --
can you see those?
MR. COOPER: Yes. I'm not close enough.
MR. SWANSON: Well, I think those are self-explanatory. I will be happy to try and expand on any questions you might
have.
The good news is a couple years ago, had we put a slide up with this information, you would have found in the
construction industry that HAZCOM was the most frequently cited. We have moved on to scaffolding, electric wiring and
fall protection. There's some overlap. As you can tell, many of the scaffolding citations would also probably have
supported a subpart M, et cetera. Right.
We have three of the most frequently cited subject areas, groups of standards, are also the same standards that we
address during our focused inspections.
MR. W. SMITH: Bruce, just a question. You're right about years ago. In fact, for a number of years right after HAZCOM
came out, it jumped right up to number one for like three years or four years in a row, and I can't remember. Was
scaffolds, electric wiring and fall protection right behind that, so that it just moved in line, but scaffolds have
always been at that point maybe number 2? Can you remember?
MR. SWANSON: I cannot remember. I know that scaffolds were always high. I cannot remember if they were number 2
behind HAZCOM. Perhaps Mr. Cooper with his 20 years of experience --
MR. W. SMITH: My curiosity question only ends up being, I mean, you're coming out with, you know, a standard for
scaffolds, compliance directive, and it is number 1. I just didn't know whether it was number 2 behind HAZCOM for all
them years.
MR. SWANSON: I can't answer that for you.
MR. W. SMITH: Okay.
DR. RINGEN: Interesting thing on this, Bruce, is the number of citations with the lead standard.
MR. SWANSON: Yes. Tom, you had a question?
MR. HALL: I just wondered if the court reporter picked him up on that.
THE COURT REPORTER: Yes.
MR. HALL: Okay.
MR. SWANSON: You're not paying for these, are you, Tom?
DR. RINGEN: Do you know, Bruce, about under the lead standard what kind of citations these are for, for indoor
residential paint or for structural lead?
MR. SWANSON: I don't have a breakdown on that, but I do believe that most of it comes from outside painting and
repainting work like on structural steel bridges and the like. I know that clearly those are the most significant
cases. There's a couple of them out of Pennsylvania that got a lot of press.
MS. JONES: I think it's program and monitoring, the initial assessment. I don't know if it's broken down interior or
exterior.
MR. SWANSON: Yes, sir.
MR. COOPER: Bruce, the electrical wiring number was number 2 in my knowledge. I'm glad to see it there. I know you
had to do some work to put this together, but I think that what you've done tells us a lot. For instance, I didn't
know that scaffolds were your highest standard that was cited. I find that interesting. Of course it's good. Many of
us would like to see 1926-21 be up there number 2, the training.
My question is this. This is from FY-96 through July 31. How long a period is that?
MS. JONES: October through July.
MR. SWANSON: Yes, that's October 1 through -- if your point is that it's not well written, you're absolutely right.
MR. COOPER: That's October --
MR. SWANSON: It's October 1 through July 31st. It's FY-96 through July of the FY-96 year.
MS. JONES: It's nine months.
MR. COOPER: Nine months. So technically the amount of citations would be higher on a given year. Thank you.
MR. SWANSON: In our next life. I don't recall if there was a specific request for this in Mr. Cooper's memo or not,
but interesting the breakdown, the continuing saga of focused inspections and how we're doing proportionately. This
is actually what, a year and three quarters. This goes back to the beginning of focused inspections, October of ‘94,
and carries it through nine months of this year as well. So you've got one and three quarter years, and you can see
where the percent to focused inspection is presently.
Next. We tried to get a line graph to show you how that number keeps going up. I'm sorry that we didn't get it in
time for the trip. This is just a gratuitous offering by DOC. I find these figures clearly instructive, and I thought
it might be of interest to the committee as well. You can see the contractor size, one to four employees, what
percent or what the employment there is of the construction community and where they are on a fatality rate per
100,000.
Just directing your attention to the two extremes, the smallest contractor, those which are hardest for OSHA to
specifically target, we run into small contractors as subs on the larger sites, but it is very difficult for us to
specifically target contractors of that size because of the nature of their work in our DODGE (phonetic) targeting
system, yet you could see what proportion of the problem they are in our construction industry as compared to those
contractors where OSHA spans a disproportionate amount of its time because these are construction sites that we can
target.
In following the philosophy of spending ten hours on a construction site, it's better to have a larger number of
employees there because you benefit more people by your interaction with the construction company. Following that
philosophy, we spend most of our time or a significant proportion of our time with the contractors that are 500 and
above, 1,000 plus, and yet their percentage of the fatalities in our industry is small.
Bill?
MR. RHOTEN: Just a question. Can you have some numbers to break down what percentage of those smaller contractors are
residential versus commercial? Is that possible?
MS. SOLOMON: We can. Fifty percent of all construction labor is residential, but most of that data we have access to
or could do.
MR. RHOTEN: Well, I'm not concerned about what percentages of small is residential. I'm concerned about that fatality
rate.
MS. SOLOMON: Yes. I mean, that's something we're working on.
MR. RHOTEN: Pardon?
MS. SOLOMON: That data base we're developing.
MR. RHOTEN: You're developing that?
MS. SOLOMON: Yes.
MR. RHOTEN: Do you have that?
MR. SWANSON: We can identify it by --
MS. SOLOMON: We would like to help you with that.
MR. SWANSON: We can identify it by --
MR. RHOTEN: Yes. Not that I don't trust your figures --
MS. SOLOMON: I may not necessarily provide it to anyone but --
MR. RHOTEN: Do you have those figures?
MR. SWANSON: Yes.
MR. RHOTEN: Okay, that's all. I would like to have those from OSHA, you know.
MR. SWANSON: We can identify it by SIC, right.
MR. RHOTEN: I'm sure yours will reflect the same figures that OSHA has.
DR. RINGEN: I think we have most of them. When we looked at benchmarks in the industry and looked at internationally,
we said what we ought to be able to achieve and reapply (Indiscernible) practices across the world at this point
should be a fatality rate for the industry as a whole of about 3 per 100,000 full-time workers.
Obviously for the very largest contractors this now approaches that level for the industry as a whole which is still
about four times, five times above that level. That's the important thing.
MR. CLOUTIER: I think this overhead truly shows what we said for a number of years that you're targeting the wrong
people; that you spend a majority of your time at the larger construction sites and the bigger contractors because
you can get a bigger bang for the buck, but your graph right here tells us we should be going after the 250 or less
size employer, or even 50 employees or less is where we should be directing our resources because they have the
significant number of fatalities in the industry.
MR. RHOTEN: Well, even the one before to start with, but I think the point I'd like to make is back on this whole
thing with the safety training. I don't believe that those contractors that hire one to four people are doing any
safety training, and I think it's reflected in those numbers up there, and the same thing from the five to nine. I
think as a proximal matter, that's not getting done. I think that needs to maybe be enforced in those smaller --
MR. SWANSON: I think you're absolutely right, Bill, and, you know, we have to do outreach. We have to do training. We
have to bring religion to people that don't know the money that can be made through safety yet, and then for those
that are a little reticent to pick up those messages, we have to do it through direct enforcement.
The problem that we have and have always had for 25 years is a workable way to target in those two smaller categories
rather than the luck of the draw by getting them on larger job sites, and we're going to be happy to work with this
committee on improving OSHA's construction targeting system and come up with some answers that really work.
DR. RINGEN: While you have this chart up, I think the last meeting we had Anita Drummond from the Small Business
Administration visit with us and talk about what are small businesses in our industry, and I asked her to send me the
legislation and regulations, which she did. For the construction industry, a small business, which many people would
want to have exempted from OSHA altogether, is an employer with less than 500 employees or less than $5 million or
$7.5 million a year in sales depending on what kind of employer you are. If you look at this chart, that would exempt
a substantial portion. You would have a much easier job according to that --
MR. SWANSON: Yes, that's right. The definitions that OSHA uses for the American economy do not apply to the
construction industry well at all, and a small employer is one of those definitions that doesn't fit us very well.
DR. RINGEN: Yes.
MS. OSORIO: One thing that I thought we had put in our request last time was that again your caption was
approximately half the country --
MR. SWANSON: Right.
MS. OSORIO: -- because you're just doing federal, and in some of the state plans that I just visited unofficially and
stuff, they don't always fall into step with what the feds are doing, you know, fed OSHA. So I don't know if even
like the top ten citations nor if these fatality rates would be, you know, equivalent or not. There may be some
regional differences. I'm just wondering if that's obtainable. I mean, I can get it for some of the states myself.
I'm just wondering if you plan to do it, because I think it's a directorate that would really help kind of fill out
the whole picture for you to kind of see any regional changes or some emphasis programs maybe need to tuned up or
whatever, you know, so I think that would be a nice overview.
DR. RINGEN: The fatality rates and the lost time injury rates are for the country as a whole, including the state
plan states.
MS. OSORIO: So this includes the region --
DR. RINGEN: Yes.
MS. OSORIO: Oh, okay, because I kept seeing federal only.
DR. RINGEN: No.
MS. OSORIO: Oh, okay.
DR. RINGEN: This is all states.
MS. OSORIO: But even the citations --
MR. SWANSON:: But the other stuff was federal only.
MS. OSORIO: Yes.
MR. SWANSON: Yes, that's correct.
MS. PAUL: Will we get a copy of the overheads along with the other materials that you're going to get us copies for?
MR. SWANSON: We can make that happen, yes.
MS. PAUL: Would you?
MR. SWANSON: Yes.
DR. RINGEN: Were there any other questions?
(No response.)
MR. SWANSON: Well, the second half -- that's it for the overheads is -- yes, ma'am.
MS. FOOTE-SOIZA: I'm sorry.
MR. SWANSON: I'm sorry.
MS. FOOTE-SOIZA: A little late there. Do you actually conduct inspections for nine or fewer employees?
MR. SWANSON: Well, the DOC does not conduct any inspections --
MS. FOOTE-SOIZA: Yes, I know, but the staff out --
MR. SWANSON: -- at all, and yes --
MS. FOOTE-SOIZA: Under the state plans.
MR. SWANSON: And, yes, OSHA does in the construction industry conduct inspections on the smaller employers that are
otherwise excluded because it's a high hazard industry.
MS. FOOTE-SOIZA: I just want to make that clear.
MR. SWANSON: Okay. The last of the overheads and the second part of the presentation will be by Mr. Davey who will
give us an overview with as much specificity as this committee wants on subpart M, and if Cooper would lift that
thing, we could go back to our seats.
(Pause.)
Clarification on the two numbers that I gave for each of the regions, there was no construction figure in there at
all. They were total compliance officers and 11(c) investigators.
MR. COOPER: Are we going to get copies of that?
MR. SWANSON: We'll get copies of everything that I gave. We'll get copies of that for you.
MR. COOPER: I mean today or some -- no, not today. I don't care when. I just wanted to look at them.
(Pause.)
MR. W. SMITH: Whatever happened to our discussion about using the workers' comp side for data as far as doing
inspections? Did we go anywhere with that? Remember when we met with the AGC?
MR. SWANSON: Yes, and we haven't gone any place with that.
MR. W. SMITH: Okay. Just an idea.
MR. SWANSON: It's still an idea. It's a viable idea. We have to get the state's cooperating with us.
MR. W. SMITH: That's right. Right.
MR. SWANSON: Some states will. Some states are not.
MR. W. SMITH: Okay.
MR. SWANSON: And we just haven't pursued it as well as we should have.
Steve, when Jule comes back, I'll see if she can get copies.
MR. COOPER: I don't have to have them. I just wanted to look at them.
MR. SWANSON: Okay.
DR. RINGEN: Anymore questions or comments with regard to Bruce's?
MR. RHOTEN: I think that was an enlightening report.
DR. RINGEN: He's done with his report, I think.
MR. RHOTEN: I'm glad we got that information.
DR. RINGEN: Steve.
MR. COOPER: Mr. Swanson, I thank you for that report. I think a lot of people weren't aware of the operation of your
office and some of the projects they were on. In fact, I'm not aware of one project that you're on that affects our
industry, which is the rebar caps. The data up there on citations, the most frequent regulation that was cited, that
is only federal OSHA on that list, is that correct?
MR. SWANSON: Correct.
MR. COOPER: I think it would be interesting -- I don't know if you have time to do it, but maybe someone up at the
federal and state plans office -- I wonder what it is in the states. It would be interesting how it compares.
MR. SWANSON: We will try and get that produced for you. Actually what we should do to make this a most meaningful
report for you is to have total and then federal and state broken out separately. The state data we have a little
tougher time with, but I know that's doable. Next time we'll --
MR. COOPER: Well, I think your time was well spent, and thank you very much.
DR. RINGEN: You may want to consider selecting some of the states and reporting for each of them separately rather
than trying to combine them all because there may be big differences between the states as well. If you can't get
information on all of the state plans, the ones that you can get information on would be a good step forward.
MR. COOPER: Thank you, Mr. Chairman.
DR. RINGEN: Okay.
MR. DAVEY: Good morning. One more time, I'm Larry Davey from construction directorates, and I'm the project officer
on subpart M, the proposed rule document to open subpart M.
DR. RINGEN: You have to speak up because the people in the back of the room can't hear.
MR. HALL: These are not mikes to -- these are just court reporter mikes.
MR. DAVEY: So let me know if you can't hear. I'll be glad to speak up even further.
Back at the end of July, beginning of August, we've mailed out copies of the draft subpart M to all the advisory
committee members, and what I'm going to present here is an overview of what we had sent out to you. In the mailing
out back several weeks ago now we were giving the advisory committee a chance to review the regulatory text and the
issues that we're raising concerning subpart M with the understanding that there is a group of advisory committee
people who are going to give feedback to the committee on that, and I will be here to listen to that.
MR. COOPER: Excuse me. Mr. Chairman, the people in the back cannot hear.
MR. HALL: Would it help if you turned around?
MR. COOPER: I don't care what he does. They just can't hear.
DR. RINGEN: Why don't you sit up here and speak? That would probably work better.
MR. HALL: If he sat up there, it might be easier if they could see him.
MR. COOPER: As he moves, the reason I'm bringing it up is it's a rather important subject.
MR. DAVEY: How are we doing now? I guess it's a directional thing.
So what I was saying just a few minutes ago involved copies of the draft document that were sent out to the advisory
committee, and we sent them out several weeks ago, and we put a draft together that is as complete as we could get
for the time. There will be some slight changes to the document that's sent out in the proposed rule version, but
we're taking this approach to try and get everyone involved to get the advisory committee on board as early as
possible, and the outline of the document involves regulatory text. We have a number of item there and a handful of
issues, actually seven issues, and I'll proceed through those as we go along here, but the document was sent out. The
advisory committee has been through a team process.
With the advisory's input, any committee comments will be incorporated and discussed in the preamble. So we're
looking for about at the end of September at the earliest to try and get the document out on the streets, but with
the caveat that there is additional internal review within OSHA and the solicitors, input
will be reflected in the document.
This particular draft is a bit more of a team process work in that we're kind of stressing that the people on the
team were more on board with what we've presented here. This case diverges a bit from the original M that was sent
out back in August of 1994 in that respect, also from the scaffolds document in that we're involving everyone more
are up front, and whom I'm referring to, the solicitor and the people in policy, the regulatory analysis. There's
more of a collegial approach, and this was done by direction of Deputy Director Barry Detler and team leader Gerry
Reidy.
I am the projects officer on the document draft we've got here, but the team members involved were Bob Blicksilver
from regulatory analysis, also working on the SENRAC document, and then Solicitor Jones, the committee knows from his
representation here, and then Barbara Bilaski as a team member, and she was the project officer on the August 1984,
M. John Franklin is their statistical person. He's also the director of construction, so, you know, that's the makeup
of people who comprised our review team for the draft.
Overall, the document is proposing to revise certain construction industry safety standards that are intended for
employees from falling off onto and through working levels as a step beyond what is promulgated in August 1994, the
subpart M that's currently in the CFR. That proposed regulatory text itself as opposed to the issues are addressing
the specified steel erection activities that the agency intends to cover under the standard rather than in subpart R.
So they'll be under the generic fall protection standard, and this is an aftermath of SENRAC's, their decision to
cover through exempt or diverge from covering the broadcast and communication towers and tanks. SENRAC's deliberation
may decide that those aspects were not going to be covered under subpart R, and that is one item that we will get
into by the document.
There are other regulatory text elements that involve enforcement concerns from the field personnel such as
provisions that address skylights, excavations and alternative measures in fall protection plans and training by
qualified persons.
As far as the list of issues go, we have seven issues that are being discussed here, and the initial issue is
residential construction. We're dealing with definition of residential construction, roof slopes, alternative
measures for roofing work, slide guards, residential construction use of slide guards and the use of slide guards on
low sloped roofs and then other residential construction work.
The additional issues, as we put them together in the document, involve climbing rebar walls, which is something that
is targeted. Back in February of 1995 we had a number of compliance issues or directives that were summed up, and
then the next issue involved fall protection plans, and post frame or wood frame construction would be issue number
4, and that is something that the industry sector brought to our attention in terms of the buildings that are
somewhat akin to either steel construction or residential construction depending on the take.
Issue 5 involves precast concrete erection and the relationship between the fall protection requirements for precast
based on what SENRAC advisory group has come up with, and their industry has concerns that they want to be on a level
playing field. They want to be able to have OSHA take into account SENRAC's position on what fall protection
standards are.
MR. COOPER: Excuse me. These issues that you're reading off, have you got a particular page we can relate to there?
DR. RINGEN: Issue 2 is on page 40. Issue 3 is on page 41. Issue 4 is on page 43, and issue 5 is on page 45.
MR. DAVEY: I'm skimming through.
MR. CLOUTIER: Issue 6 is on 51, and 7 is on 54.
MR. DAVEY: I'm giving a quick overview of the document at this point, and I'd be glad to go back and take time as we
go through.
DR. RINGEN: This was not an easy document for us to deal with. I have to tell you that. I sympathize with Steve's
problem here.
MR. DAVEY: I'll get back and deal with that in a minute. Let me just wrap up the total issues, the outline of that.
We're getting near the end of that.
Issue 5 is a precast concrete erection. Issue 6 is the fall protection for employees who deliver materials, the
construction vendors, and issue 7, the final one, involves like the construction of the communication and broadcast
towers, which was the SENRAC related material.
Now, coming back to what Dr. Ringen was saying, in terms of the complexity of the document, we began in the preamble
the discussion to outline what had taken place subsequent to the promulgation of subpart M; in other words,
everything after August of 1994, but to do that, we found it pretty important to try and give a sketchy outline of
what transpired up to that point and what was going on simultaneously in terms of steel erection, the full range of
issues. So there is a certain amount of interwoven activity here, and our preamble will try to set that out as
succinctly as possible. There's just a lot going on here, and it's tied into subpart R which certainly went through a
lot of discussion to the advisory group, and the subpart M itself, to try and lay that as a separate element takes a
little explaining. So hopefully the preamble does indeed clarify some of that. One of the reviews within OSHA
indicated that it did get fairly direct in terms of trying to present the wealth of issues as a fairly readable
fashion.
So in essence that's our proposal in the draft version. That's a quick highlight of everything, and I can go back and
weigh in with each element at least at the regulatory text as there are -- at the very back of the document after the
signature at the regulatory text we have a few editorial changes starting on page 63. The signature at this point we
have --
MR. TAYLOR: Excuse me, sir. Could you speak up just a little bit more?
MR. DAVEY: Sure, sorry. Thank you.
So the regulatory text, there's several pages of that at the back of the document, and we have a few editorial items
here. Those involve the references to personal fall arrest system, body harness. In terms of trying to come up with
an acronym, we're trying to insert a reference that would be -- I guess we're putting in a heading in the 501(b), I
think it is, but going on the version of D ring that the NC committee is giving.
Item 4 in the regulatory text involves the scope, avocations, definitions and we're tying back to the steel erection
advisory committee trying to set out provisions for broadcast towers, communication towers, and that ties into
several paragraphs to do that.
Item 5 is the italicized heading, but it also involves adding the references, the proposed language on skylights, how
to clarify the references to skylights. Then a little proposed regulatory text on excavations, we're trying to
clarify where the visibility of the excavation -- whether, let's see, the visual barrier is a problem, where the
location of barricades, and that is in paragraph 501(b)(7) of the regulatory text.
On item 6 of the regulatory text, it's towards the very tail end of the document here. One more time, it's somewhat
of an editorial provision that we're proposing here. We're coming up with -- kind of moving the definition or the
explanation of conventional fall protection around, and then we're talking about alternative measures trying to come
up with a clarification of that. That really isn't too much change in major measure in 502, but it is set out in the
regulatory text.
MR. SWANSON: Larry, you're going to have to speak up.
MR. DAVEY: Okay. Then under 1926.503, the very end of the document here, we're talking about editorial changes
involving the insurer, the word "insurer," but we're getting into something a little bit more regulatory
here. We're dealing with trying to change the word "competent person" in terms of who is making the
training, and we're proposing to change that to "qualified person" in 1926.503(a)(2) to indicate that a
qualified person would be allowed to provide training as opposed to the competent person requirement.
The last element here of the document in the regulatory text involves section 1926.503, moving paragraphs
(a)(2)(VIII) and paragraph (b) there, and that's one more time a proposed change that we're setting out here.
That one, I want to get into a little explanation for the committee. That, I think, was discussed early this morning
in reference to the minutes of the meetings from the last get-together. The subpart M team drafting the document is
aware that the advisory committee did weigh in with a recommendation that the specific point that OSHA not take any
steps to pursue the exercise that we're looking at here, which is involved with a paperwork burden or Paperwork
Reduction Act. So our draft document, while it nonetheless reflects the proposed reference to this, the agency is
obligated to propose measures to lessen the paperwork burden, and the committee discussion and vote will be duly set
out a little bit further in their proposed document preamble to make note of the advisory committee position on this,
but the training has been cited by a number of parties in the last several months as being something that OSHA has
viewed as taking on. It's something that is very burdensome on the public, is indeed quite visible in terms of the
paperwork requirements, so the team has gone ahead with putting this provision in here in proposed fashion, but
that's one more time to go out and gather comments to allay some fears.
Having run through the regulatory text at the back of the document now, I'd like to take a minute or two or however
long the committee would like to go into the issues and to refer to -- the starting point to this document goes back
in many respects to the December 8, 1995, directive that the construction director put out, the interim compliance
guidelines for residential fall protection.
DR. RINGEN: I wonder if we should take a break before you do that, a brief break, and that we try to summarize on a
chart like this the proposed changes that this document contains, the important issues that we're talking about,
because I have really -- I read through this. I tried to read through it a couple of times. I fell asleep, and I
can't ferret out what the hell you guys are trying to do, and so I'd like to put in the chart the specific issues
that we're dealing with, and we can put that up on the wall, so that everybody understands what we're talking about.
I've talked to other members of the committee also who have had the same problem, and then I've asked Bob Masterson
and also Steve Cooper to comment specifically in some detail on the document.
But I'd like to take a five or ten-minute break while we try to outline the issues that are in here that are of
importance, and then we'll get back to it if that's okay with everyone.
(Short recess.)
DR. RINGEN: Could we get started again?
The changes that are being proposed to the rule are on pages 17 through 23. Mainly the changes that are being
proposed is that they want to include broadcast and telecommunication towers and some other stuff. They want to
define more clearly what they mean by the duty to have a fall protection system. They want to clarify what they mean
by openings, holes and that kind of thing where falls frequently come into play. They want to clarify how excavations
or falls relate to excavations or falls in the process of excavations. They want to deal with some issues that
involve PFAS anchorings, and they want to deal with a clarification of what's meant by the fall protection plan, a
clarification of the training requirements under the standard, and finally, they want to delete the stuff that
relates to the Paperwork Reduction Act concerning certification. Those are the changes that they're talking about.
In having looked at those, you've identified a large number of issues that need to be dealt with and that you would
like input into, and they are raised in summary here, but in reality, there are in this whole thing approximately 35
pages of detailed questions or issues that you are concerned about and that you want feedback on.
I've asked Bob Masterson and Steve Cooper ahead of time to look at the document in a little more detail from the rest
of us to maybe give us some preliminary comments both on what you think is of significance in the document and how we
also should respond to the issues that have been raised here.
Bob, do you want to start?
MR. MASTERSON: Well, I have to agree with Steve. I had a real hard time going through this and maintaining the
continuity particularly as it would relate back to the existing subpart M and some of the directives that have come
out. I think it would be easier for people to understand if some of the text for the existing standard were included
here rather than referencing, and if you didn't happen to have it with you, you were just out of luck.
DR. RINGEN: If that included that text with strikeouts and red lines.
MR. MASTERSON: Kind of the approach that we've taken on the stuff that we've worked on, so we had all the information
to work with.
But there's a couple things even before we get into the issues that I think I'd like to address, and the first one is
a reference to 90 days after publication. This is a pretty complex issue. We've all been struggling with it. It's
been going on since 1986. I don't think publishing it and expecting to have all the feedback that you're asking for
covering as many of the issues that you've got up there, 90 days won't be sufficient, and I think it really should be
longer than that.
As I went through it, a couple things that to me were very noticeably missing -- and I'm saying that because I know
in subpart R there are specific things that were brought up that carryover into the residential construction area
that under subpart R could be maintained there. If you go to page 17, I believe, they brought in the broadcast and
telecommunication towers and water tanks and some things that have been left out particularly as it would relate to
the residential construction with the steel-framed homes where they're using metal stud construction. It has not been
touched on in here, and if it's not brought up here in text, then I'm afraid it's going to be maintained under
subpart R which is not where it belongs.
Also, along with that subpart R is talking about metal siding, which is aluminum siding, and I think it also needs to
be brought up in this standard as something that's falling under the coverage of the standard, as well as windows.
Again, subpart R specifically addresses the installation of metal-framed windows, which is a common practice in
residential construction, and again, I don't want to see that it's isolated out of this and maintained in a different
standard.
That was, you know, the biggest things that I was seeing, and the biggest improvement that I can see is we need to
include the text, so that when you're looking at the proposed changes, you have something to compare against.
MR. DAVEY: I'd respond that one draft I had the text in there, but in the interest of brevity, I've jumped forward.
So we did have the text, and it did kind of get a little unwieldy even as difficult as is, but depending on what the
committee -- if you care to give us some further consensus on this, but I think I'll wait and try and take it in that
direction.
But the red line strikeout is a little difficult. The Federal Register for one does not allow much of that. That's
what this document is geared to. Perhaps it could have been better for the committees working here on the process to
have the last strikeout and use it while drafting this, but again, because the point where it's moving on up for
review and red line strikeout is something that we really use during the process, so this seems like the cutoff point
to get rid of that. We like to use those ourselves.
MR. MASTERSON: Steve, do you have anything you want to add there?
DR. RINGEN: Steve?
MR. COOPER: Bob, your concern was on page 18?
MR. MASTERSON: Well, that's just where I made my notes. In particular, at page 18 it was brought up in
telecommunication towers and some of the other areas that needed to be included in subpart M, and that's just where I
had my note. If we're going to include those, we also need to put into the text the area of aluminum siding, metal
stud homes where they're using -- more and more of the builders are starting to use metal studs, and I don't want to
see that considered steel erection.
MR. COOPER: Well, to do it properly, we need a copy of the draft of subpart R, which I don't think we have here. If
you're going to refer to the written word, a draft copy of the negotiated rule making, we would need to have a copy
of that so we can go over it. I know it from memory, most of it. So this committee has got a real problem if you're
going to address what's in and what's out of the negotiated rule making subpart R steel erection, because I don't
think everyone here can go off the top of their heads and review --
MR. MASTERSON: Oh, I didn't expect anybody to do that. I'm just saying it is contained in that standard, negotiated
rule making. I think it also needs to be brought into here, so that it's clearly covered under subpart M.
MR. COOPER: What is included in -- you said "it." MR. MASTERSON: In R they include metal sliding, the
installation of metal frame one does, specifically being covered by subpart R.
MR. COOPER: Yes.
MR. MASTERSON: And it's typical practices in residential construction, and I think it needs to be included in this
standard.
MR. COOPER: I don't have a problem with that.
MR. MASTERSON: I didn't think anybody would.
MR. COOPER: We discussed that in SENRAC, which I think everyone here knows is the negotiated rule making for steel
erection, and resolved that. In fact, you asked the same question of SENRAC -- of course it wasn't before this
committee -- how that affects residential housing, and you were told that it didn't.
MR. MASTERSON: No. You must be confusing me with somebody else. I've never attended SENRAC. In front of this
committee I brought up if the scope of subpart R had been broadened much broader than it was originally anticipated.
MR. COOPER: All right. That question was brought up to negotiated rule making SENRAC committee, and they said it did
not affect residential housing. So you're proposing to this committee that you would like to see something written in
M to --
MR. MASTERSON: Yes.
MR. COOPER: -- insure that residential housing is not in R.
MR. MASTERSON: Right.
MR. COOPER: That's not a big deal.
MR. MASTERSON: I didn't think that it was.
MR. COOPER: How do you want to handle it, Mr. Chairman? Do you want to see that it gets through?
DR. RINGEN: Well, we first need to understand what it is that OSHA wants here clearly. Bruce.
MR. SWANSON: Let me back up and try a bigger picture called M and fall protection, and let me go back to Noah's Ark.
Actually Noah's Ark is only about ten months ago when we were having some discussions with members of the United
States Senate. In response to lobbying from certain groups, the Senate wanted to put a very restrictive rider on
OSHA's FY-96 appropriations bill which we thought we were going to see shortly, like November of ‘95, and we didn't
see it until April or May of this year.
But to bring you back to November of ‘95, we were having discussions with the Senate. The rider would have moved
everything on fall protection to 16 feet. They did not like subpart M the way it was written or at least their
lobbying constituents didn't like it the way it was written. After looking at the rider, we said, wait a second,
that's going to be fatal to fall protection, can't we do something else. We had some discussions, and it came out
reasonably certain field interpretation directives were put out that for the roofing industry and the home building
industry, I got rid of some of the immediate problems that people were having with fall protection, subpart M the way
it was in the August ‘94 draft.
We also told Senator Reed you can have these two directives, and that will solve your constituents' problem. You get
rid of the rider on our appropriations bill, and in addition, we will open subpart M next year, and we'll let the
world comment on all these "mistakes," "errors," that we allegedly made in ‘94 when we came out
with fall protection and the perhaps errors that we made in the area of roofing and in residential home building and
possibly some other areas.
The purpose of opening M in the beginning was only to cover those issues. Since that time a number of other parties
have come forward, come to OSHA and said, you're handling pre-stress concrete in a most inappropriate manner; we'd
like to be handled thus and so. On the issue of material vendors, we need an interpretation as to what you mean on a
roofing issue. OSHA came out with an interpretation. On broadcast and power transmission towers, that industry has
come to OSHA and said, we don't want to be handled in this subpart; we want to be handled in that subpart; we want to
be handled thus and so. On wood frame buildings or pole barns, whichever, the industry came to OSHA and said, we
should be handled this way.
OSHA took all those issues, put them in a bucket, as it were, and -- I mean, you understand my language. When you
look at the graph in front of you, it looks like a bucket. We took all those issues, put them together and said,
listen, we are going out with a Federal Register notice that opens M. We are asking the world to give us your data;
don't give us your questions, your pleadings, your whatever else. I don't want to be defamatory, but give us your
data that supports the arguments that you've been making for the last 12 months or 18 months, show us.
So this at base is a request through the Federal Register. We hope to have something printed by the end of September
-- and I hope we clean it up quite a bit from what you're looking at this morning -- that clearly asks the world at
large here are a number of issues that OSHA has before it, give us your intelligent comments on these issues and
support it with data; what should OSHA do on each of these; how should OSHA handle the issue of broadcast and power
transmission towers, fall protection issues regarding same.
What OSHA came out with in ‘95 and ‘96 on its field directives, should those be allowed to stand; did we do the
right thing when we said in the roofing area, the slide guard is a suitable form of fall protection if the slope of
your roof is such and so. Give us your comments on that, and we're pleading with the world. That's the whole concept
behind this. It gets awfully cluttered when you try and put pen to paper and get that down in a clear and succinct
fashion. You can see our first try, it doesn't work that well, but as Larry told you, it's a document by a committee.
I probably didn't have to tell you that.
So with that background, that's how we got to where we are and that's what we're trying to do. In no case are these
OSHA's proposals as to what a new fall protection standard should be. It is OSHA asking the world for input on these
issues and trying to state the issue for you.
DR. RINGEN: That's not what the document says obviously. It says the proposed regulatory text addresses --
MR. SWANSON: Right.
DR. RINGEN: -- blah-blah-blah, and we've been told ahead of time, in fact, that --
MR. SWANSON: But you have a list of issues and questions.
DR. RINGEN: In fact, the memo from you says attached is the latest draft of proposed subpart M. So naturally we could
be confused. This document could very easily say, rather than list acts and proposed rule, because you're not
proposing to the rule. You're proposing to collect information relating to possibly proposing a rule at some point.
There may be some legal stuff that I don't understand there.
MR. SWANSON: Right.
DR. RINGEN: But essentially what you're doing is you could say in this document we're looking at changing the fall
protection standard in five different areas, and you could list those very straightforward in less than a page; these
are the areas. Now, we have identified a large number of issues related to this that we need input on; here are the
issues.
MR. SWANSON: Right.
DR. RINGEN: In fact, in this case you have five proposed changes or six or whatever it is. There are about five, I
think, proposed changes if you include that stuff about the paperwork reduction.
But then you have the issues that are not necessarily related to each specific change. None of the issues deals
specifically with residential construction, none of the changes in the rule deal specifically with residential
construction. A whole bunch of issues that you had for residential construction are listed behind. I don't know if
it's possible to do this when you put out the document to say, we propose to make this change or change in this
section of the standard; here are the issues that we are concerned about in relationship to that; what do you think,
and then do that for each of the five rather than have it listed as they are here, because I think all of us, I'm
sure, were totally confused about what you wanted to achieve.
MR. SWANSON: Part of the format is caused because of the Administrative Procedures Act. We were trying to make this a
notice of proposed rule making rather than an advanced notice of proposed rule making for many reasons; one, to save
a year or so in time; two, to not get stuck with the political baggage that advance notice of proposed rule makings
have picked up in the last 15 or 20 years. This is something we really wanted to do. So it was sculpted, and I should
not make statements about the solicitors without them being here today to defend themselves --
DR. RINGEN: That's okay.
MR. SWANSON: -- but the particular format of this document to read like a notice of proposed rule making was based on
that kind of thought process, Mr. Chairman.
DR. RINGEN: When I start to read through it, I start to read through the background, which I think is 15 pages long,
and I say, geez, is this standard; where's the standard here kind of, and it became confusing as I went along.
Other comments on this?
MR. COOPER: I certainly agree with you, Mr. Chairman. It is confusing.
DR. RINGEN: So I don't know what you want us to do with this now, Bruce.
MR. SWANSON: Okay.
DR. RINGEN: I think the document has to be reformatted.
MR. SWANSON: Okay. Bottom line on what OSHA would like from ACCSH -- and perhaps we're going to have to do it next
meeting and rewrite this ourselves or find some other vehicle for getting back to ACCSH perhaps through a standing
committee on subpart M or whatever other vehicle we can come up with both in the interest of trying to get something
done and not have to wait a quarter between each redraft of this; but what we're looking for is some guidance not
simply -- I mean, your comments on the structure of how we've laid this out are appropriate, and we'll take those to
heart, and we'll get back and try and rewrite this committee document, reformat it.
The concept of opening each of these issues for public comment is that's something that philosophically anyone on
ACCSH or ACCSH as a body finds troublesome, or are there any specific issues that we are trying to bring out and
discuss that ACCSH is bothered by, that type of guidance.
DR. RINGEN: Any comments on that?
MR. MUTAWE: If this comes out through the Federal Register as a proposed and not advance notice --
MR. SWANSON: Right.
MR. MUTAWE: -- employers, they may try to comply with this, and discrepancies between this and subpart M makes it de
minimus, makes it very hard on compliance officers in the field to enforce subpart M, and this might take a
precedent to subpart M. It becomes an issue.
MR. SWANSON: That's a very valid point. I don't have a ready answer for how to deal with that type of confusion in
the employer community. You're right. I mean, because we have formatted it as a proposal, it looks like tomorrow's
fall protection. So if somebody is abiding by this and not by -- right, we get a de minimus for
own policies.
MR. MUTAWE: Yes.
MR. SWANSON: It's a valid point. I don't know where to go with it right now.
MR. MUTAWE: If it comes out as ANPRM, then it's just not advance notice and can be taken --
MR. SWANSON: Right. In many ways this would have been cleaner to do as an ANPRM, advanced notice of proposed rule
making --
MR. MUTAWE: Yes.
MR. SWANSON: -- but there were reasons we couldn't do that.
DR. RINGEN: You couldn't put it out just as a request for information?
MR. SWANSON: All I can tell you, you know, is apparently not because that was my preference from the beginning.
DR. RINGEN: Well, I don't think -- are there any other comments here? Steve, do you have any comments?
MR. CLOUTIER: Well, I think there's certain issues that some of the groups would address individually but they
wouldn't address the entire package, and I'm like you. I'd like to see it more definitive, and I'm also afraid if we
send it out, employers are going to pick up on it. They're going to train on it, and this will be the new thing.
MR. SWANSON: Yes.
MR. CLOUTIER: And we've still got problems with it.
DR. RINGEN: And we could certainly sit down here today and go through each of the issues one by one and have a
discussion of it, but I don't think that's a good use of time at this point. What I'd suggest to you is that we get
some volunteers here for a small group that can work with OSHA between now and the next meeting to reformat and
restructure the document, so that we can have back a meaningful document that we hopefully can take action on at the
next meeting and have it finalized to our satisfaction. I don't see how else we can do it in an expeditious manner.
Steve?
MR. COOPER: Mr. Chairman, what's the time frame we're trying to work with here?
MR. SWANSON: Probably February of ‘96 would have been nice. We're not going to make that one, and it just kept
sliding. The draft that you see in front of you, the committee that's working on it was hoping that they could iron
out the small problems with it and have it in the Federal Register by late September. I don't see how that's doable
either with the reception we're getting here with this.
So what is the time frame? The time frame is as soon as possible. We're operating with directives, interpretive
directives in the field in fall protection, that were meant to be temporary in November of ‘95 when we came out
with them. They're still there. We're using them. They'll last. They'll hold up. So as soon as possible, Steve.
DR. RINGEN: Yes, Steve.
MR. COOPER: To kind of clear some of this up, I realize it's impossible. The outcry on subpart M is the height of
fall protection. Is that generally a correct statement?
MR. SWANSON: No, I don't -- I mean, that clearly was one of the issues, and that was the issue that was in the rider
language that I told you about, but there were other work practice issues where folks came to us and talked about on
things that just could not be done without increasing the hazard.
MR. COOPER: Are you going to ask this committee what this committee feels should be the height of fall protection in
subpart M, a number? Is that going to happen? That may be a tough question, but that is the general question.
MR. SWANSON: Well, this committee has been asked in the past as to what that height should be. I don't see that as a
necessary issue to ask this committee. If the committee wishes to address that, you know, obviously OSHA would
applaud it. I speak for myself, not for my boss, but the issue here is not what should the height be. What the issue
is OSHA is going out and talking -- and asking the world for comment on what the height should be. All we're doing is
opening M, and if the committee, as part of the world, wishes to comment on what that trigger height should be, 6, 10
or 16 or mix and match, depending upon the occupation you're involved in, that would be fine, but, no, as part of
opening M, it is not necessary for us to ask this committee, probably not even appropriate for us to ask this
committee what is the proper trigger height.
MR. COOPER: No, but you'll ask us all these other questions.
MR. SWANSON: We'll ask you, Mr. Cooper, if you agree that we should be asking the world for comment on all those
other issues. We're not asking you for answers on all those other issues. We're asking more for whether or not you
agree with the concept of us seeking input from the world on each of these various industries' plea to us.
MR. CLOUTIER: We can answer that question today.
MR. COOPER: Yes, that's --
MR. CLOUTIER: We can get that off the table, and the answer is in my opinion yes.
MR. SWANSON: Okay, and now find a reasonable way -- I assume implicit in that is now find a more reasonable way to
format that issue than we have done.
DR. RINGEN: Well, that issue would have to come up anyway, because if you dig deep into this document, I believe -- I
may be wrong, but I think they're proposing to change the fall rule from 16 to 6.
MR. COOPER: From 6 to 16.
MR. W. SMITH: It went down --
DR. RINGEN: Somebody said 6.
MR. W. SMITH: It went down to 6.
DR. RINGEN: It is at 6. Okay. Let's let it stay at 6. Did I miss something here? I missed something. The language,
anyway, the regulatory language on page -- what was it, 65? Yes, page 65, section (B)(4(I), falling through holes or
-- well, this is from holes. I'm sorry. They've added that language simply -- that's to make the thing about holes
more clear, but, again, it's virtually impossible to figure out what is meant here since it's not included in the
context of existing standard. I apologize. I got lost and made a mistake.
MR. SWANSON: Easy to do with this.
DR. RINGEN: Proves the point or some point.
So what I suggest to you is if we could agree that we put together a work group that will try between now and the
next meeting maybe through some phone calls or something like that to restructure this document, and the format that
I would try to suggest that you may want to use or that I would suggest you try to use is the following: a) these are
the areas that we're proposing to make changes in the document or in the standard and then list them very clear and
up-front; then, b) for each of these we have a number of issues that we would like answers to and provide us with
information on. Then I would probably put in two appendices. One would be an appendix that includes the rule with the
strikeouts and additions or red lines that had been made, and the second appendix, I would take all that stuff that's
background in this document and put it in the second appendix, so that you don't have to wade through all of that
before you get into the details of it. Then I think it will become more understandable.
If you start with a very specific statement about the changes that you're intending to make, not long, then you say
section B, these are the issues that we need answers to with regard to each of the changes that we're making, and
there may be some for residential in each of them, but don't group the residential things in one area that doesn't
clearly relate to the change that you're trying to make in the standard.
Does that make sense?
MR. SWANSON: Yes.
DR. RINGEN: If we think about following that way and that that's the guideline that we give to this work group, then
I think we can go ahead and establish a work group here to try to accomplish this by the next meeting and figuring
that we'll meet again in October. That should give you enough time to do what needs to be done.
I also think, by the way, there is more data out there. I think David Fosbrook and the people at NIOSH and ourselves
have more data than is indicated in this document here. I know the people in Washington State have tons of data on
falls that are very good and could be very useful for this kind of rule.
Is that generally agreeable to everybody? Does anybody have anymore comments on it? Do we have any volunteers to
participate in this work group other than Cooper and Masterson?
MS. SOLOMON: Is this going to be open to the public?
DR. RINGEN: Yes.
MS. PORTER: We should probably have somebody on there.
DR. RINGEN: Yes, we would love to have somebody from NIOSH on it. Bob, do you want to take charge of chairing this?
MR. MASTERSON: Fine.
DR. RINGEN: And, Steve, you'll make sure --
MR. COOPER: Well, if he's going to chair it, I don't want to be on it. That's fine.
DR. RINGEN: But you'll be --
MR. RHOTEN: You can be the secretary.
DR. RINGEN: -- with Steve as co-chair with the clear responsibility for making sure that the issues that relate to
subpart R are delineated and understood fully as well.
MR. COOPER: Mr. Chairman, you have conveniently left yourself out of the loop, I see. As the chairman of this
committee, I think, and since you have proposed this, I think you should participate in the remedy.
DR. RINGEN: I'll participate.
MR. COOPER: Thank you very much.
DR. RINGEN: Let's see, so we got Masterson and Cooper as co-chairmen, and --
MR. COOPER: You can be the chairman.
DR. RINGEN: No, I don't want to be the chairman. I don't know enough about fall protection. Myself, Diane Porter from
NIOSH, Regina and that ought to do it.
MR. COOPER: And time frame.
DR. RINGEN: Well, the time frame is that we're going to try to work with OSHA staff to get the changes or to fix this
document by the next meeting, so that the committee can take action on it by the next meeting. It shouldn't be a very
hard thing to accomplish actually. You have this on a word processor.
MR. COOPER: Well, that raises a question. I hate to do this to you. That time frame is no time frame at all. When is
the next meeting?
DR. RINGEN: The next meeting we're going to decide on at the end of tomorrow, but probably sometime about two months
from now, mid-October.
MR. COOPER: Thank you very much. Within two months we need to get some response. Thank you.
DR. RINGEN: Okay. Is that agreeable to everybody? Do we have a motion to support this?
MS. PAUL: Move.
DR. RINGEN: Thank you. Second?
MR. CLOUTIER: Second.
DR. RINGEN: Any discussion?
(No response.)
All in favor?
(Chorus of ayes.)
All opposed?
MR. COOPER: Nay.
DR. RINGEN: That was not a nay, Mr. Hall. That was an aye. Affirmative. We have just established --
MR. HALL: We have no chorus of nays?
DR. RINGEN: What?
MR. HALL: No chorus of nays?
DR. RINGEN: No chorus of nays.
Okay. That takes care of that issue. Thank you very much.
MR. COOPER: We'll be working through Bruce's --
DR. RINGEN: Yes. We will have to work through Bruce's office, and it will be Bruce's office's responsibility to get
this -- it's at their office.
Okay. We're now at the next subject matter in the agenda.
MR. COOPER: We've got that all taken care of, haven't we?
DR. RINGEN: We got that done very well. I've lost my agenda here. Yes, we have now the comments from state plan
partners, and I know that we have three state representatives present here from Utah, Washington State and Oregon, I
believe. Is that correct?
We sent out a letter to a number of state plan administrators asking them to come here today and to provide us with
comments about or what our request said was that the committee believes OSHA needs to pay more attention to what the
states are doing regarding safety and health in the construction industry and to learn from their experiences. We
would like your comments in general about how well the state OSHA plans function and how they differ from fed OSHA.
That's a general request, how the state OSHA plans function and how they differ from fed OSHA and in particular we
want comments on the following issues.
The general approach to construction, is this sector given special attention, and if so, how. Fall protection is the
second specific issue. Third is employer safety and health programs, including programs for multi-employer sites.
Fourth is confined spaces. Fifth is enforcement activities, including the use of focused inspections. Sixth is
organization of field activities with emphasis on enforcement and on consultation, and finally, compliance officer
training, what is it, is it adequate and how would you change it. So we ask the state plan folks to come here and
comment on it.
We got a letter from the Nevada state plan that I think is in your packet and that I'll go over very briefly. It says
that 60 percent of Nevada's inspections are in construction. That's the first point. Second is that employers with
ten or more employees must have a written safety and health program. The program duty requires management commitment
to safety employee involvement, hazard recognition and control, accident investigations, establishing a safety
committee if there are more than 25 employees. It's a safety committee where there are more than 25 employees.
Disciplinary policy, we talked about that, safety training.
The third issue is that the matter requires the general contractor to have preconstruction conferences with the state
plan before commencement of major projects. That's projects over $10 million. Nevada also requires or the safety and
health construction and training section works with contractors to help them, this kind of thing.
They also raised the following concerning the agenda that we've given them. Nevada has never adopted OSHA's new fall
protection standard. We've experienced difficulties enforcing the fall protection standard.
MR. COOPER: It has.
MS. PORTER: It has.
MR. COOPER: It has.
DR. RINGEN: What?
MS. PORTER: It has.
MR. COOPER: It has.
MR. SWANSON: You said it has never adopted. It has adopted.
DR. RINGEN: I'm sorry. Has adopted. That makes a difference, yes. They've experienced difficulty enforcing the fall
protection standard in the residential construction industry, and they're working with the home builders on that.
They don't have a focused inspection program because of the law that requires employers to have a written safety and
health program.
Staff training, they talk about staff training a little bit. I won't go through it because it's not very specific,
but they do say that federal OSHA should seriously consider using digital television technology to broadcast the OSHA
training courses via satellite throughout the country so that people don't have to fly to Chicago all the time.
MS. FOOTE-SOIZA: Here, here.
DR. RINGEN: All right. You got that in the minutes, the here, here? That was from Washington State.
And that's the comments that we have from Nevada.
So having said that, I suggest that we start with the participant from Utah and get your comments.
MR. BAGLEY: Okay. I think I can be heard if I sit here and maybe sit at a little bit of an angle. I'm Jay Bagley, the
administrator for Utah OSHA. I got notified Friday that I was coming here, so I do have some comments.
Construction is an important part of safety and health programs for any business, company, state or federal
government, and that's the basis of really the Utah type program, and I think federal OSHA has been trying to work
the safety and health programs. It's probably 25 years too late. Because of all the restrictions that are coming
either through legislature, through Congress, through the Senate and public opinion, safety and health programs may
not be able to be effectuated within the federal government which impacts on the state.
In Utah we adopt by reference the federal standards, so we do have the federal standards in place. We've also since
1917 had safety and health programs within the state, especially for construction in the mining areas which I'm glad
to see NIOSH is getting into that area now too.
Approximately 40 percent of our inspections in Utah are in the construction area, and in the past year we've
increased our inspections 10 percent, even though in some areas it was furloughs and cutback on inspections.
Within Utah, again, we're a smaller state, but we do get some substantial construction projects. Those that get into
the larger projects, we don't have any requirement within Utah to have a safety and health program for any projects,
but most of the larger companies do have safety and health programs, and that's one thing we've stressed for five
years. Within Utah, even though we don't mandate it, we have worked that area within consultation and compliance to
stress safety and health programs in most of the larger companies, and we have adopted them. Also the governor had a
workers' compensation task force where we worked with the legislators and senators within the state and public and
private sector, the management-labor side to stress safety and health programs, and they can get rebates if they
institute safety and health programs.
Also they get a rebate if they institute substance abuse programs in the state which will help in most cases
employers and employees. Some people say, well, that's a benefit for the employer, and employees get bothered by it,
but in a lot of cases the employees will say to the employer, we're glad you instituted a substance abuse program
because that then protects us, because we knew these guys were on drugs, but we were afraid to say anything or do
anything about it. But in some cases it's kept some businesses within the state that would have gone out of business
otherwise because in other states that same company existed, and by instituting the substance abuse programs, it
increased their profits, productivity, morale, and it kept them in business, and the other one in another state went
out of business.
Fall protection is an important issue. Again, we've had for about 40 years a 10 foot fall limit, which was more
restrictive than the 16 foot limit that we were applying since 1950s, and when it went from 16 feet down to 6 feet on
the federal side, we did get some fallout from that with our legislators, but we increased the fall protection
inspections during 1995, which was a sensitive year for us because we had instituted our standard in December ‘94.
So then when we had our legislature look at it and they were going to wipe out all our standards because of that one
standard, and we were able to persuade them fall protection is an important thing, important issue.
Unfortunately the day before I went before the legislature, somebody did fall from six feet and die, you know, and I
was able to use that as an object lesson for the senators and legislators, and I think they understood the importance
of fall protection, because they would say, people don't die from six feet. This person did fall from six feet.
DR. RINGEN: In what kind of situation was that?
MR. BAGLEY: It was a ladder, so it didn't pertain, but the object was six feet, the guy did die.
DR. RINGEN: Was it in construction?
MR. BAGLEY: It was in construction. Okay.
DR. RINGEN: What kind of construction?
MR. BAGLEY: It was on a large building, but he just happened to be on the ladder, and the ladder wasn't positioned
right and didn't have the right footing and wintertime, those type of things, but it still sent the message, people
do die from six feet.
Where our construction is most of the buildings -- I mean six feet -- most of them are 16 feet or taller too. I mean,
even in a house construction, because of property increases, everybody builds two-story homes anymore, and we live in
the mountains and that area. So the front side may look small, but on the back side you may have four stories deep,
so that's where people fall sometimes, and we have people that fall from 40 feet and end up with no injuries too, so,
you know, there's both sides.
Safety and health programs, like I said, we brief and publicize, and we've worked with insurance companies on safety
and health programs to get a 10 percent, 5 percent discount. That's more beneficial for the company than even a
safety inspection, because if they get those installed, then they'll have those other elements hopefully of a safety
and health process within OSHA.
Within the state, since we're a state plan state, we're required to cover public sector, and that's a significant
part where construction is within our state, because they're the ones that seem to be building larger buildings in
the public sector, and that's an area that's not covered by OSHA right now outside of the state plan states.
Confined spaces, important area also. We had people go to confined space classes and a combined low bid about
compliance officer training in confined spaces. We have just finished confined spaces training for everybody again
because that is an important issue. The people don't think about the confined spaces of all the aspects, and so it's
important not only for the compliance officers and the consultants but it's to get the word out to the businesses and
employers and employees, because employees a lot of times don't understand the impact of confined spaces.
Enforcement, like I said, within construction, we do about 40 percent in the construction area, and focused type
inspections, we've been using that before they came out with that type of program, because trenching and falls were
an important part, and that's still one of the areas where people get killed in. I think in 1994 10 percent of the
general industry deaths nationally are caused by falls, and construction is 30 percent, and if you get into the
special trades and roofers type, I think it's 67 percent, so a significant number of deaths from the falls, which on
the federal OSHA, you saw the scaffolding and the falls, those are highly emphasized in the past year also.
Our field activities and organization, we have consultation and compliance. We're all in the same organization.
Training, education, consultation, those are important things within the program. Within the past year our state has
authorized through .25 percent of the workers' compensation premium to be given for workplace safety, which is in
addition to the normal OSHA type activities. So we've also basically doubled our consultation, education and training
capabilities that way. So it's provided us opportunity also for grants, for innovative activities and partnerships
with the professional trade and organizations that are out there with the trade councils, with the AGC, ABC, those
type of organizations, also the regional centers.
MR. SWANSON: Jay, back on that .25 of 1 percent, is that an assessment against the employer, .25 of 1 percent of his
premium to pay for the consultation program?
MR. BAGLEY: Right. The legislature authorized that, and it's been an industrial commission for a long time. It's an
amount under -- what do you call it -- a specified account, and that doesn't come out of general funds, but it is,
and it's .25 percent of the workers' compensation premium goes into that workplace safety.
MR. SWANSON: Okay.
MR. BAGLEY: Okay. Restricted account is really what the term is called.
Organization of field activities, we have consultation in the same organization which is beneficial, I think, for
cross tell interplay, and there's the confidentiality questions and those type of things, but I think it makes it so
we can work out some of those situations easier by having the two organizations together, and we're somewhat speaking
out of the same mouth or side of the mouth when the compliance officers and consultants are dealing with companies
and issues, and that's been beneficial.
The thing that we've really used over the years, though, to strengthen or leverage our capabilities is to deal, like
I said, with these professional and trade associations or organizations. It's to get with a group of people. We've
given some penalty breaks or credit for penalties to employers if they get us into an organization, whether it's the
painters, the pipe fitters or into certain organizations, so we can get in there and preach safety and health
programs really to the employers on a larger scale than just one or two people, and it's been beneficial. Some
employers would say, don't ever let them know that I'm the one that's got this organization to have OSHA
consultation. Education and training people come, but after the meeting, they've always come back and said, let
anybody know that I did it because it's more beneficial. The cross tell of the employers, even though they may be
competitors, that type of thing, none of them want to have a death or injury and those type of things. It's been
beneficial with ASSE and AIJ, those type of organizations also.
Compliance officer training, there is a little deficiency there. There's some capability maybe in technology that OTI
should probably get into, compressed digital or satellite. We tried a satellite program with, I think, Iowa a year
ago August on confined space if I remember right. We got short notification about it, but we still went out. We went
to all the universities, colleges and trade centers around, and I think it was going to cost $325 for them to link up
with the satellite. Most of them were linked up, but it was still some costs there. We said, hey, we'll pay for all
the cost, but it was not widely accepted. The short notice, some protection between different groups or universities
or professional groups, but I thought it was beneficial for the capability to have interplay. You could fax your
questions, answers and get your response back. That was very beneficial. That has only been done that once, and like
I said, I think if we did it more in the construction area, it would be beneficial. I think that -- is that long
enough?
Any questions?
MR. O. SMITH: Yes, I have one.
MR. BAGLEY: Yes, sir.
MR. O. SMITH: I'm still not sure or it's not clear to me how this death occurred on the six foot fall.
MR. BAGLEY: He was climbing the ladder, and the ladder slipped, and he fell back.
MR. O. SMITH: Extension ladder, stepladder, what?
MR. BAGLEY: It was an extension ladder.
MR. O. SMITH: Did he fall -- was the terrain flat, or was it on a hill? Did he fall into a ditch?
MR. BAGLEY: No. He, it appears, slipped on the ladder as he was going up, fell back. His leg caught along the rungs
and slipped back this way (Indicating), and then his head went down and hit the back.
MR. O. SMITH: I see.
MR. BAGLEY: So his head is what hit.
MR. O. SMITH: And broke his neck?
MR. BAGLEY: I can't remember that, but I know he had severe brain.
MR. COOPER: This is not the first time that's happened either. You may just hit the back of your head.
MR. BAGLEY: Right.
MR. COOPER: My question is this -- Owen, are you done?
MR. O. SMITH: Yes.
MR. COOPER: What is your annual state budget?
MR. BAGLEY: For OSHA?
MR. COOPER: Yes, for you.
MR. BAGLEY: For our compliance it's about $1.7 million. Again, ‘95 is our base year, you could say.
MR. COOPER: I'm talking about including federal.
MR. BAGLEY: No, that's total for compliance, and consultation is --
MR. COOPER: What is your total budget that you get from all sources?
MR. BAGLEY: For running --
MR. COOPER: For the Utah state plan.
MR. BAGLEY: Now, the Utah state plan is broken out into different categories because in the state plan you have
compliance, and compliance, total money is -- I've just gone through this, but it's, let's say, $1.7 million total
for compliance. For consultation, it's roughly $350,000, and with our other workplace safety account, which is not
really an OSHA thing but it's related to that program, which is about a million dollars.
MR. COOPER: So you're talking three?
MR. BAGLEY: Roughly, $3 million.
MR. COOPER: Well, 1.7 plus 3 plus 1, that's $3 million.
MR. BAGLEY: Right, right.
MR. COOPER: In Utah it's going to work safety and health.
MR. BAGLEY: Right. And just speaking for state plans, because I picked up a little comment about state plans, state
plans do about 70,000 inspections a year, and I think federal OSHA -- the number is not up there -- is about 40,000
inspections in a year. So the state plans do a significant number of inspections. You know, there may be some
questions on the process and everything, but we do inspections --
DR. RINGEN: How many inspections do you do a year?
MR. BAGLEY: In our state?
DR. RINGEN: Yes.
MR. BAGLEY: We do approximately 1,200, and four years ago we were doing approximately 600.
MR. COOPER: Well, the quality of the inspection is more important than the amount.
MR. BAGLEY: Quality of inspections, during that same time in construction also our incident rates in ‘92 were at
19. We significantly decreased. We're down to about 14 now on incident rates. The deaths in fall protection in 1995,
we stressed fall protection quite a bit. We had our deaths in the fall area during 1995.
MR. COOPER: How many CSHOs do you have?
MR. BAGLEY: We have 19 compliance officers.
MR. COOPER: Nineteen compliance officers.
MR. BAGLEY: And we have eight consultants.
MR. COOPER: How many of those compliance officers are IHs?
MR. BAGLEY We have nine IHs.
MR. COOPER: Nine IHs. Do you issue any egregious citations?
MR. BAGLEY: We do not issue egregious.
MR. COOPER: I mean, I realize --
MR. BAGLEY: We have willfuls that we cite, not egregious.
MR. COOPER: And your training for your compliance officers is where?
MR. BAGLEY: We do it on site, and we do it at Chicago both.
MR. COOPER: At the institute?
MR. BAGLEY: Right. When it's on site, then everybody gets the same training.
MR. COOPER: Back to the satellite program, you said it cost you $350 is what the hook-up amount was.
MR. BAGLEY: Right.
MR. COOPER: My question is, is that for how long a period. Is that a one day? What is that for?
MR. BAGLEY: It was a couple hour session if I remember right.
MR. COOPER: So it's expensive.
MR. BAGLEY: But, you know, if you got 100 people there, that's not very expensive.
MR. COOPER: Well, my question, which does not relate directly to Utah, but this board, I think, is interested in that
proposal of satellite training, this advisory board, and at the institute they do a lot of compliance officer
training, and some of it is lengthy.
MR. BAGLEY: Correct.
MR. COOPER: So the question is if you are either with the state plan or the regional administrator, you had to send
someone from your area office to Chicago and that costs.
MR. BAGLEY: Right.
MR. COOPER: It's pretty expensive to do it by the satellite too if you're going to take 80 hours of training.
MR. BAGLEY: Right. Now, I know --
MR. COOPER: Is that correct, or is that not correct?
MR. BAGLEY: MSHA has a satellite connection, and I don't know. Ms. Porter, is that -- MSHA has a satellite connection
in --
MS. PORTER: Beckley.
MR. BAGLEY: -- Beckley.
MR. COOPER: What's it cost?
MS. PORTER: What does it cost?
MR. COOPER: No. I mean, if I was the regional administrator or an area director and I want to get eight compliance
officers trained on a 40-hour program, what would it cost me?
MS. PORTER: It probably -- I mean, the satellite link-up is probably, you know, $500 a day, you know, for an
eight-hour course period of time, depending on the number of people you get involved and the number of links you have
across the country. The cost is variable.
MR. COOPER: But you can do it for $500?
MS. PORTER: But, you know, $500 is about something you can count on for --
MR. SWANSON: It's cheap compared to sending people to Chicago.
MS. PORTER: Oh, yes, it's definitely --
MR. BAGLEY: Right.
MS. PORTER: It's more cost effective to do that it way.
MR. BAGLEY: Right, and we just had a course form Chicago, and it took two instructors to come out and ship
everything, and you know it's going to cost us $4,000 to $5,000 probably for them, but then we got 30 people trained.
So the cost benefit for us -- that's a cost benefit. The problem with it just being they come to Utah -- there's a
benefit to that because everybody is speaking the same language basically. The benefit of going to Chicago, if you do
it once in awhile, is they also go back there and do some interplay with federal CSHOs, consultants from the
different states and compliance officers. So there's some benefit to going back to Chicago once in awhile to get that
cross flow, but if you did it satellite and had interactive questions and answers, then you get that same benefit.
MS. PORTER: And, Steve, the cost is very variable, because, for instance, if you link to local community colleges and
universities, they already have the equipment in place versus if you're trying to create some kind of new thing in
the state where, in fact, you're going to -- you know, all the up-front costs, you know. So it's beneficial to use,
you know, community resources that are out there for satellite link-up which already exists, so, you know, as I said,
it depends on where you're doing the link-up.
MR. COOPER: Bruce, is federal OSHA doing much of this, or should I not ask you?
MR. SWANSON: Diane says no. We're not doing nearly enough, but we have the facility in Washington to send out, but it
is awkward to set up the receiver stations, you know, around the country. I mean, I agree wholeheartedly using a
community college makes a lot of sense, but how convenient is the community college to where your CSHO base is, and
now you might have to move your CSHO's, you know, halfway across the state to whatever we're talking about. So we
have the ability to send. Our ability to receive seems to be somewhat underdeveloped.
MR. COOPER: We all have that problem.
MR. SWANSON: Yes.
MR. BAGLEY: One thing, though, with NIOSH, if NIOSH would expand this education resource center -- and I talked with
Harvey Harris from OTI -- you know, there's a lot more capability. We have a safety and health ERC right there within
Utah. They have the same type of capabilities, but they don't want to go out -- I mean, you know, NIOSH is looking
for funding issues and those type of things and these places. There's one in Denver, but there's one in Utah where if
we had that type of interlink with ERCs and the OTI -- what do you call it -- education centers, you know, those type
of link-ups because our people are just as qualified to do those type of things in my opinion in Utah as they are in
the educational centers as spread out within eight or nine regions now in the United States.
MR. COOPER: Mr. Chairman, one of the reasons I'm bringing this up, all of us talk all the time about training. We did
it yesterday afternoon, training, training, training, training. So here's an opportunity -- I realize it's taken up a
little time, but here's an opportunity -- we're all concerned about the quality of the compliance officer across this
country. So the issue of training by other means -- I realize, Bruce, those people at the institute may or may not be
much in favor of doing the satellite links because it's going to reduce some of the resources to the institute, I
would suppose. It's a large part of the OSHA budget. If this vehicle can be used more often, it would certainly be a
prudent management decision to pursue that further.
MS. OSORIO: Are you through?
MR. COOPER: Right now I am.
MS. OSORIO: Okay. I just have a few questions. First of all, what's the estimated number of workers in Utah in terms
of, you know, how much --
MR. BAGLEY: We have a million employees.
MS. OSORIO: So approximately one -- and what percentage are private versus public industry?
MR. BAGLEY: We have --
MS. OSORIO: Just ball park.
MR. BAGLEY: It seems like it's maybe 70,000 public employees.
MS. OSORIO: And then you mentioned your work with trade groups and other associations. Are you working with
apprenticeship programs or unions or anything?
MR. BAGLEY: Right. That's why I said trade council.
MS. OSORIO: Oh, okay, okay. And my other question here is in terms of -- I mean, I just know certain states, not all
of them, but what kind of relationship do you have with the federal OSHA people and stuff? Are you pretty much
self-contained, or obviously for training there isn't too much communication, but for other things --
MR. BAGLEY: No, there's communication with training.
MS. OSORIO: Can you elaborate on that because I was getting the opposite sense?
MR. BAGLEY: Just that there's been cutbacks, and I was trying to go into that, and then I got interrupted.
MS. OSORIO: Okay.
MR. BAGLEY: We're living at $95 minus 3 percent for this year, looking at maybe 2 percent for this coming year. So
we're not really able to expand into areas that we could otherwise. I mean, that's still better than a minus 15
percent of what we were looking at for this year, but dollars relate to training. Because personnel costs, within the
state plan state, about 90 percent of our grant is eaten up in personnel costs. So, you know, those type of issues so
there is an issue there. But as far as the training, we have interplay with federal OSHA.
MS. OSORIO: Well, I wasn't just talking about training, but in terms of, you know, for compliance work and all that,
you know. I mean, I know you have state plan meetings where you meet with the fed OSHA people and stuff.
MR. BAGLEY: Right, and there's been more of a partnership on that in the past couple years.
MS. OSORIO: And do you think that's been satisfactory at least for your state?
MR. BAGLEY: Right. I mean, we have people that are on their committees, and they allow us to go to planning meetings
with them. There is a lot of interplay. Even myself, I've been on several of these committees myself, and even when
the shutdown or furlough, whatever was on, we were doing things by telephone conference to keep that partnership
going. I mean, I gathered even this committee has some problems on communication and understanding each other, let
alone some of the issues.
MS. OSORIO: Never, never.
MR. BAGLEY: Some of the issues. And so it's important to have this communication, and I think OSHA has done an
outstanding job of trying to communicate with the states and even with NIOSH, you know, coming more into the
organization. I think my experience -- there's been a significant trying to get everybody involved within the state
plan states more than there were. Does that mean it's perfect? No, but I think OSHA has been agreeable to help the
states become more of the system and to have input just like there's more of an input, I think, even on this meeting
today for the fact you're out here into the field to listen us as stakeholders too.
MS. OSORIO: Yes. And the other thing I just wanted -- two little things and I'll be quiet. When you saw that profile
that Bruce had put up there in terms of, you know, top ten citations and all that, is that profile more or less in
rank order what you're seeing in your state? I'm trying to get what kind of --
MR. BAGLEY: I think scaffolding is a little higher than it is in Utah, but electrical is up there. I mean, even
before this change in HAZCOM and those type of things, electrical was our number 2, and fall protection is definitely
up there.
MS. OSORIO: Okay. My last question then is in terms of using resources that are around you -- I mean, I can just
speak for my state, but, you know --
MR. BAGLEY: And what state is that?
MS. OSORIO: Oh, I'm sorry. California.
MR. BAGLEY: Okay.
MS. OSORIO: I'm not that far from you. In terms of pooling your resource, I know that we in the health -- I'm in the
health department there. We actually give free training and stuff on certain aspects of, you know, health and safety
--
MR. BAGLEY: Right.
MS. OSORIO: -- to the compliance officers, and you have an ERC there and all that. I'm just wondering, has there been
talk about maybe some regional, maybe adjacent, you know, state plans get together because even that's cheaper until
you get all this high tech telecommunications going, which you need infrastructure, and it may or may not be -- and
the future will eventually get there, but it's not going to get here today.
MR. BAGLEY: Yes.
MS. OSORIO: In terms of sharing some materials and maybe doing regional meetings and things like that.
MR. BAGLEY: The sharing of the material is going on, and when we have a training session, we invite other states.
Wyoming came over to ours. We allowed -- I mean, some people from Denver were coming, but then there was some problem
there, and they didn't end up. But other federal agencies, we allow them to come to our training time, and when the
other federal agencies in Utah have the OSHA people come in, we're allowed that changeover, but there's free flow
really of information back and forth, more so than it used to be when we have state plan meetings. We talk to each
other somewhat, maybe a monthly regionally, I would think, but I think there's a lot more play also within
departments. The health department and OSHA and those type of groups, we get together. The safety council, the AGCs,
the ABCs, we have interplay, and definitely that leverage is beneficial.
MR. W. SMITH: Jay, Bill Smith with the Operating Engineers. Just a couple questions.
You talk about the state does not mandate safety and health programs for construction employers.
MR. BAGLEY: Within our state, right.
MR. W. SMITH: But yet you guys have worked out some kind of an arrangement where there's a percentage discount on
insurance premiums that they adopt if they have a safety and health program in effect?
MR. BAGLEY: Right, right. Then that depends on the insurance company.
MR. W. SMITH: And who monitors that, the insurance company?
MR. BAGLEY: Right.
MR. W. SMITH: So if my company just come up with a safety and health program I picked up off the shelf and presented
it to my insurance provider, then I would probably get a discount, but it's the fox in the henhouse because the
government doesn't get involved in that portion of it?
MR. BAGLEY: At this moment. I mean --
MR. W. SMITH: Because we have a serious problem to some extent about proposals like that where the industry monitors
themselves and gives themselves discounts, you know, for the system, but yet --
MR. BAGLEY: Yes, but that's the --
MR. W. SMITH: But yet the workers don't benefit by the program if you follow me.
MR. BAGLEY: But that's --
MR. W. SMITH: I mean, that's our --
MR. BAGLEY: If you see those insurance companies, though, they usually have a rebate because of fewer number injuries
and illnesses, and it's not just on the safety and health program by itself, but then that's an industry thing. But
there are stakeholders' meetings for safety and health programs.
MR. W. SMITH: Yes. I mean, we get involved in this workers' comp premium basis all the time about if you have less
accidents, eventually your premium lowers, but the problem is this system is bad in the sense of how they collect the
premiums for construction to start with. So you're still going to pay a higher percentage if your payroll is higher
regardless of what you do as a company --
MR. BAGLEY: Right.
MR. W. SMITH: -- because the guy next to you in the pool doesn't have that --
MR. BAGLEY: Right.
MR. W. SMITH: -- and his premium is lower because his hourly rate is lower based on payroll --
MR. BAGLEY: Right.
MR. W. SMITH: -- but yet he's totally unsafe, so you're still going to have to pay his burden, so that fox watching
the henhouse is a bad deal, I think --
MR. BAGLEY: Right.
MR. W. SMITH: -- without somebody getting involved in it.
MR. BAGLEY: We do monitoring of construction sites. We get a listing of building permits, and so we know the price,
the place, the company, the owner, those type of things, and it's more current than the DODGE type of report.
MR. W. SMITH: Yes.
MR. BAGLEY: Because that comes out weekly.
MR. W. SMITH: Yes. I think it would be nicer if somehow you'd get a link between the discounts received for the
programs, and yet the programs aren't in place when you get there, so that you --
MR. BAGLEY: No, but ours is separate from that. We're not involved --
MR. W. SMITH: I know, but I mean, what's happening is, it's a scam on the industry for the premium if you follow me.
I mean, if you get to the job site and find that that safety and health program that I'm getting a discount for is
not in place for my employees, it's a scam on the industry.
MR. BAGLEY: Right, but that's a separate issue from OSHA type issue.
MR. W. SMITH: What I'm saying is you were part of -- I thought you said --
MR. BAGLEY: No, no.
MR. W. SMITH: -- you were part of instituting --
MR. BAGLEY: No.
MR. W. SMITH: Okay.
MR. BAGLEY: We were on the task force. We're not --
MR. W. SMITH: Well, that means you're a part of it.
MR. BAGLEY: The insurance companies are separate. We were on a task force. We did not control the task force. We were
just like today I'm here.
MR. W. SMITH: Well, I understand, but what I'm saying is you as a state plan -- because that's why we're here today.
We're to find out what the state plans are doing. You as a state plan and being a part of a task force should have
had input to say to the insurance carrier, look, when we find that safety and health program that you're getting a
discount -- you're giving a discount for is not in place, we need to notify you, so that the discount is not there
anymore.
MR. BAGLEY: Right, but we have statutory obligations to take care of safety and health in the workplace, and that --
MR. W. SMITH: Well, maybe you shouldn't be a part of the task force then. I mean, because really you're not a part of
it.
MR. BAGLEY: No, we were invited -- just like today, we weren't on the task force like you are on the ACCSH. We were
invited in. We said safety and health program. That's all we did. They took it on themselves to address that issue.
MR. W. SMITH: Yes. There's a missing link, and I'm saying --
MS. PORTER: Do you do any statistical analysis looking at companies that have this discount in health and safety
programs, looking at their accident and injury rates? Are they lower or higher?
MR. BAGLEY: No. We don't have that information. That information is between the insurance company and the employer.
That is not an information that we know about.
MR. W. SMITH: And see, this committee -- I'm now going to speak on behalf of me and the Operating Engineers. To me
that's a scam of the industry. I'm being serious because it shouldn't be allowed to take effect if it's just a scam
on the industry for cost side but doesn't get down to the employees, because the purpose of the program is for the
protection of the employees, not to reduce the overhead or the burden to the employer.
MR. BAGLEY: But the employer, from my understanding -- I'm not an insurance expert. I am a safety and health
professional type person, and we want safety and health programs in the workplace, but if that company has injuries
that are high, they're still going to pay the price because their experience modification rate is going to be high.
They're not going to get any benefit on the overall costs.
MR. W. SMITH: Now, I agree. I mean, there's still going to pay the price, but they're going to the discount on type
of it.
MR. BAGLEY: And within in our state, in order to keep that from happening, a physician will not be paid unless the
physician's report is sent in.
MR. W. SMITH: It's just the same. You can't figure out that there is a problem in that chain --
MR. BAGLEY: But that's separate, the issue.
MR. W. SMITH: Yes.
MR. BAGLEY: That's why we have an industrial commission that deals with workers' compensation type issues and that's
a separate issue than what the Occupational Safety and Health Administration has.
DR. RINGEN: We may be looking more at that issue later on.
MR. W. SMITH: Yes. Well, I mean, we're working --
MR. BAGLEY: Right, right.
MR. W. SMITH: -- on a safety and health program for construction anyway, so I mean, it is an issue of this committee
--
MR. BAGLEY: Right, but --
MR. W. SMITH: -- it is a federal issue, and it should therefore be a part of the state plan.
MR. BAGLEY: But the states are the one that do the workers' compensation issues, not the federal government, and each
state has it. Within our state part of that protection is the employer has the responsibility to send in a first
report of injury. Correct? Is that correct?
MR. W. SMITH: Yes.
MR. BAGLEY: What about the physician? Do they have to send in a report?
MS. OSORIO: In certain states they do.
MR. W. SMITH: Yes, it depends on, right.
MR. BAGLEY: In our state, to protect that employee, to protect that employee, the doctor or physician will not be
paid without that physician's report going in. We do monitor those type of things within OSHA within Utah. If the
physician report comes in and it wasn't a first report of injury sent in -- because that happens, right? Because
sometimes an employer doesn't send in that he's had injuries.
MR. W. SMITH: Right.
MR. BAGLEY: Now, within OSHA as a whole that's not been citable recently, is that right? But within our state we
still monitor that type of thing. So if that first report doesn't come in but the physician sent it in because the
physician wants to get paid and the employer doesn't want the Industrial Commission to know that it's happened that
way, we'll still have it, and it identifies an outline, it gets asterisked, and then we know about those employers
that don't send in first report of injuries. So those type of things, that's a separate issue, but we do look at
that.
MR. W. SMITH: The last question I got, Knut.
Did you say you did focused inspections?
MR. BAGLEY: We do focused type inspections, right.
MR. W. SMITH: Following the guidelines that the federal government hands down. So before you can even do a focused
inspection, you have to make sure that they have a safety and health program in effect.
MR. BAGLEY: Right, and that's been part of our program for five years. We look at safety and health programs.
MR. W. SMITH: And you guys follow the guidelines of the safety and health programs. So in a sense you still are
monitoring but the safety health and program --
MR. BAGLEY: But it's not with workers' compensation because workers' compensation is not our area of expertise. It is
with the Industrial Commission or Labor Department.
MR. W. SMITH: Now, if you do a multi-employer site and you find out that one of the subcontractors do not have a
safety and health program in effect, do you then do a full inspection of his work on that particular project?
MR. BAGLEY: They would potentially fall into that. I mean, that depends on the situation and the compliance officer,
but it would most likely end up with more of the full inspection.
MR. W. SMITH: I mean could you follow me? Because we had this discussion from the beginning. If there is a
multi-employer site and there's, let's say, 10 subs --
MR. BAGLEY: Right.
MR. W. SMITH: -- or 15 subs and you find out that the controlling contractor has a safety and health program there
and then your compliance officer goes out and he's got, let's say, seven companies on that job site --
MR. BAGLEY: Right.
MR. W. SMITH: -- and none of them have a safety and health program in effect, do you still continue to do that as a
focused inspection site.
MR. BAGLEY: I'm not sure that's come up because most of our big construction employers do have the requirement to
have safety and health programs in place, and in fact, a lot of them will have it in their contractor, and so that's
not really come up in the time that we've done those type of inspections.
MR. W. SMITH: See, I mean, that's --
MR. BAGLEY: But the potential would exist --
MR. W. SMITH: -- some of the things this committee is concerned about is that most small employers won't have a
safety and health program.
MR. BAGLEY: Right, but some of them are written into the contract they will have it, so then --
MR. W. SMITH: But you can write anyone into the contract --
MR. BAGLEY: Right, right.
MR. W. SMITH: -- but I'm going to get the job because I'm a little better.
MR. BAGLEY: Right.
MR. W. SMITH: Now, when I get there, will your compliance officers check at the sub's trailer as to whether he has a
safety and health program for his employees because they're under direct control?
MR. BAGLEY: That's an issue that would be addressed.
MR. W. SMITH: And if they don't, then they find out that seven of the subs have none, so therefore it shouldn't be a
focused inspection.
MR. BAGLEY: It shouldn't be.
MR. W. SMITH: But yet it's still listed as a focused inspection. I think that's one of the -- I'm not attacking you
at all.
MR. BAGLEY: Okay.
MR. W. SMITH: Believe me.
MR. BAGLEY: I mean, you're getting down to a compliance officer issue, but as --
MR. W. SMITH: I'm trying to figure out what's broke so we can fix it.
MR. BAGLEY: -- far as my level, I have not had that --
MR. W. SMITH: Right.
MR. BAGLEY: -- but I could picture the potential would exist that that may happen.
MR. W. SMITH: Especially in the construction industry.
DR. RINGEN: Okay, Bill, you stay there. Jay, you please stay there, and we'll go on a little bit before we run out of
time because some of the questions you're raising are generic, and they apply to all of these states, and we'll get
back to it.
We'll ask Marilyn Schuster to come up and talk a little bit about the --
MR. BAGLEY: Now, you want me to stay here?
DR. RINGEN: Yes, stay.
MR. BAGLEY: Okay.
DR. RINGEN: Talk about Oregon's OSHA, we'll take Washington and then we'll have some discussions.
(Pause.)
MR. BAGLEY: Oh, and also, if I would have thought about it, there is a fall protection booklet, and Washington just
published it, the OSHA green or the state plan green or grass roots actually, and we just got them, and I should have
brought some, but that would have been good for you to have. Do you all have that grass roots? I'll get her to commit
to sending some because they just came out.
MS. SCHUSTER: I think that much like what Jay said, we in general work very closely with a number of groups in the
state, and again, after listening to some of the conversations here earlier today, I realize again how much easier it
is, I think, doing a lot of these things within a state than at the federal level having spent 12 or 13 years at the
federal level and then going to the state. It's so much easier.
DR. RINGEN: Are you going to say we don't communicate clearly also?
MS. SCHUSTER: Well, it's not so much a matter of communicating, and I think at sometimes it's simply that the issues
are not so broad, and you don't have to consider all the local differences quite so much, but we do have a strong
enforcement program, a strong consultation program and a technical group and a training group, and we are all in one
entity. Now, we certainly have our problems sometimes of communicating across those groups in our entity, but it's
certainly easier when it's all there than if it's somewhere else, I think.
For safety and health programs, we do not have something that's called a requirement for safety and health program.
What we have is a requirement for safety committees, and I think Bob Shiprack is going to talk about that later
because he was a member of that Mahonia Hall (phonetic) group that brought us safety committees in their current
form.
But everything that's in that safety committee requirement is pretty much the same as what's in a safety and health
program requirement. It just has a different connotation, I think, than when it's called a program.
There may not be -- I could only carry one box on the plane here, but I can get more of these to anybody that wants
them.
DR. RINGEN: Here. I'll give up mine. Pass that over to her.
(Pause.)
MS. SCHUSTER: Because, you know, one thing I would say is that I believe very strongly that labeling something a
program brings to most people's mind binders on the shelf, binders that are covered with dust and never taken off the
shelf, and the safety and health committees are very much something that is a joint effort. I mean, the whole purpose
of the safety committees is to have labor and management working together, working closely together to effect
improvements in safety and health. It's not a cumbersome written program. It's something that happens all the time in
every single workplace, and our requirements for safety committees apply to construction just the same as they apply
to everyone else. I also firmly believe that any safety and health program should not be much different for
construction than for anyone else.
There are certain abilities within the safety committees to have some flexibility for mobile type employment as
opposed to fixed employment, so it's not specific to construction. It's specific to mobile because there are a lot of
activities that are in certain industries where there are mobile operations that makes more sense to do it in a
particular way for them.
For employers who have ten or fewer employees -- that's the small/large cutoff -- ten or fewer employees are still
often required to have safety committees unless they have an injury rate in there that's lower than their industry
average, and it also addresses the NCCI rating which is rather confusing to people, but because all of this changes
yearly, people can theoretically go in and out yearly for ten or fewer whether they need one.
For construction, as it turns out, though, most every SIC code in construction is required to have safety committees
for even the ten or fewer simply because of the way the incident rates and the NCCI ratings come out each year.
What we are doing right now in our consultation program is emphasizing having comprehensive consultations whenever
possible. We're really trying to get all of our consultants out there selling the virtues of a comprehensive
consultation. It's not easy for some people because it was much easier to go in as the expert and pointing out where
particular items are incorrectly done, that the fall protection system is not correct, that the scaffold is not set
up correctly. It's much more difficult to sell safety and health management and to work with firms to become
self-sufficient, but we are trying to have our consultants go through a paradigm shift here so they become sales
people of safety and health management rather than just pointing out particular things that are wrong.
Some of them have a done a very good job. Of the people who specialize in construction, some of them are now up to
about 60 percent of their construction consultations being of a comprehensive nature. Others are still down maybe the
10 percent because they simply aren't as good at selling this concept, and it really is a matter of selling it.
We have developed a -- I didn't bring it, but we have developed also a manual that talks about safety and health
management plan, and we have chosen to use the term "plan" again because it's accepted so much better than
program. Tried it both ways, and people just vision manuals every time you say program.
We do not do focused inspections at all. As I say, we're selling the safety and health management through other
means, through the consultation means. We also are using it sometimes after an inspection in the informal conference
as a -- if people accept this, sometimes people agree to have a comprehensive consultation and agree to put safety
and health management into place, then that could affect the results of the penalties, and there could be penalty
reductions. We're even experimenting with some programs to have people agree to going through training and a number
of things at that point, but we are not doing focused inspections right now.
We work very closely with all sorts of advisory groups both for developing these manuals. We had advisory groups from
industry and from labor groups to work with us. Whenever we adopt standards, we do the same thing. We also put on a
number of conferences around the state each year which we work closely with ASSE and others in the state.
We've also recently entered into an agreement with associations to help us distribute all of these materials. A lot
of the associations, particularly in construction, the Home Builders Association and AGC occasionally, has said that
many of their members are reluctant to come directly to us to talk to us, to ask for a consultation, to even come
into our resource center and ask for materials. So we have set up a procedure whereby we have an agreement with the
association, and the Home Builders in Oregon were the first to do with it, whereby we will give them all the
materials they want, and they will distribute them to their members, and in return, they will see to it that those
members get put on our mailing list for whenever we're going to be making changes to anything or putting out new
materials.
We also do a lot with training grants. We have quite a bit of money available to make training grants available to up
to $40,000 per grant to associations or labor groups to develop training programs. We also have begun a new program
this year that is within my group in particular which is the work site -- it's called the work site redesign program.
Again, there's a lot of money available to do research on ergonomic designs in the workplace.
The money came to be because it was an employer assessment that was to go into a preferred worker program and a
couple of others, and employers were not taking much advantage of this program putting injured workers back to work.
So the legislature decided it might be far better to actually try to prevent some of those injuries in the first
place than wait till after workers are injured. So they said, take the money and make it available as grants to do
research on what was causing those injuries, and it originally was supposed to be only ergonomic. I think eventually
that might broaden out a little because we actually haven't had as many people as we would like even applying for
those grants, but it takes time to get the word out there, and those are up to $100,000, and there's a great deal of
money available in that huge pot if we could only get some good ideas for doing the research.
Actually we have made use of -- we send people to Chicago also but less and less, usually because the classes are
canceled even when we have people signed up, but we have made use of what is called EDNET, which is this term in the
state, but it's an interactive broadcast that's throughout the state. It was developed originally actually for
education uses outside of ours, but we were one of the first groups to actually make use of it, and we use it to
provide training to the public on a lot of new standards, and also our compliance officers participate in it too.
We have actually found it to be most workable to have the OSHA institute bring classes to the state. That's been very
cost effective because the institute -- what it costs to bring the institute to the state is about what it costs to
send one person to Chicago. Like Washington might come down and participate with us also, or some of the employers or
employer groups might participate also, and we do a lot of our own training of our staff. We have a fairly large
training section of our own, and so we do a lot of training ourselves on standards or even create our own training
programs, bring in outside experts to do the training.
With that, I'm just going to let you ask any questions you have, but hopefully you won't ask a lot about exact
numbers. I didn't come prepared with those in my mind.
MR. MUTAWE: Do you require safety and health committee on the job site or employers? I understand when there is
organized labor, this is doable because of the union controlling the safety and health committee. When you don't have
organized labor, how can you assure that the employer is not controlling the safety and health committee and
therefore in violation with the National Labor Relations Board?
DR. RINGEN: We can save that question for Shiprack a little later, I think. He's probably --
MS. SCHUSTER: Right, but part of that is dealt with actually in the rules. There has to be equal number of employee
and employer representatives on the committee. That's required.
MR. W. SMITH: And who picks the employee representatives, like he said, in an open shop?
MS. SCHUSTER: Right. It has to either be by election of the employees or by volunteers. It cannot be appointed by
management.
MR. MUTAWE: Have you had any problems with those committees not working?
MS. SCHUSTER: Well, they certainly work more effective in some places than in others, and it's been a learning
process over time to make them more effective. A really interesting part, I think, is that there's this provision in
the rules that allows for innovative safety committees, and people have to apply to have an innovative committee. I
haven't seen anything that I would call truly innovative, but some groups have applied for this, and probably the
best part about it is we end up then working much more closely with those safety committees simply because they
applied to be innovative, and it's through that, you know, working with them that they improve.
We also put on training programs -- we have safety committee workshops that is one of the major classes that our
training group does. They are doing those constantly all around the state because one of the requirements in the
safety committee rules are that the committee members all have to have training on hazard evaluation, hazard
assessment and kind of how you have an effective safety committee. So it's through that a lot of the employees become
empowered to go back and create a more effective safety committee.
It's actually interesting -- I think it's empowered a lot of the safety and health specialists in companies also
because often, you know, the way in which they are in the organizational structure, often they have very little
power. They end up using the safety committees as their means of getting a lot more accomplished.
MR. W. SMITH: On that line there, I got a question because I'm just trying to go through this real quickly.
MS. SCHUSTER: Yes.
MR. W. SMITH: It's the first time I saw it, but it's set up very good, and I guess what I'm saying is by mandate,
employers of ten or more have to have in place a committee. So in all workplaces, construction and general industry,
you think that you have safety and health committees in every work site?
MS. SCHUSTER: Yes.
MS. SUGERMAN: Is it by site, or is it by company?
MS. SCHUSTER: It depends.
MR. W. SMITH: That's where I was going with construction because we might have an employer who has 50 people, but he
might only have five at this site and five at that site, and they're all spread around. How do you determine and how
does the committee function for that particular employer specifically for construction because we're so spread out?
MS. SCHUSTER: Right. The general rule is -- and there will be variation, and usually we're fairly flexible as long as
it appears that it's working, but a satellite location would need to have their own independent committee if that
location controlled, you know, if the management at that location had control over budget and all those sorts of
things. In construction, when you're talking about a site, no, you're not going to have a safety committee usually
for that specific site. It's for the company as a whole.
MR. W. SMITH: And is there requirements that they meet periodically or information -- because, see, we --
MS. SCHUSTER: Yes. They have to meet monthly in most cases.
MR. W. SMITH: Because, see, we are so unique -- right. We are so unique that our guys will go from one job to the
next, or they might be at that one job for eight months and then they're lost because they'll go to a new employer in
that case.
MS. SCHUSTER: Right. It is very difficult, and we are actually at the moment having some discussions with a number of
the associations as to how we can perhaps make safety committees more effective for construction because they view --
MR. W. SMITH: Now, if I would have 25 employees, carpenters, at the job --
MS. SCHUSTER: Yes.
MR. W. SMITH: -- would I have to have a committee at that site by your ordinance or law?
MS. SCHUSTER: And you would have other sites also?
MR. W. SMITH: Right. I have 25 at this site and 10 at that time, but at the site that I have more than 10, do I have
to have a committee at that site by your law?
MS. SCHUSTER: Not specifically at that site. You would have to, as a company, have a safety committee --
MR. W. SMITH: Okay.
MS. SCHUSTER: -- that had representation from all of your sites.
MS. SUGERMAN: It does specify that?
MS. SCHUSTER: In effect.
MR. W. SMITH: I'm just trying to correct the problem on the job is what I'm trying to get to.
MS. SCHUSTER: But you could choose to have it at that site also.
MR. W. SMITH: Sure. I'm just trying to follow your law.
MS. SUGERMAN: But it doesn't mandate it.
MR. W. SMITH: The other thing, I guess, is authority. How much authority is the committee given by your statute?
MS. SCHUSTER: Well, the committee has --
MR. W. SMITH: I mean, they're given responsibility.
MS. SCHUSTER: Right.
MR. W. SMITH: That's a given, but my argument is always never give the employees responsibility without giving them
some authority to carry out their responsibility.
MS. SCHUSTER: They have the authority to recommend a number of things, and then the employer has the responsibility
to respond to that.
MR. W. SMITH: Okay. Now, because this may be food for thought for all of us, if my employer doesn't respond to the
recommendations repeatedly by the committee and then there's an accident that occurs and would have been corrected by
the recommendations, do you take that into any account as far as penalties and citations?
MS. SCHUSTER: Yes, yes.
MR. W. SMITH: So when you go in and find a violation, you also look at the committee and what the committee has done?
MS. SCHUSTER: Yes.
MR. W. SMITH: And if it did try to address it and it wasn't addressed, then you can respond to the employer?
MS. SCHUSTER: Yes. As a matter of fact, one of the first things that when a compliance officer is part of the opening
conference in asking for various materials, one of the things they're going to ask for is the safety committee
minutes, and so they're going to kind of scan through that to see where problems are --
MR. W. SMITH: If it was recommended but never addressed.
MS. SCHUSTER: Right.
MR. W. SMITH: That's good.
DR. RINGEN: Starting to sound more and more like a lawyer, Bill.
MR. W. SMITH: That's it.
MS. SUGERMAN: You said you were beginning to have discussions about how to improve it in the construction industry,
and it seems to me that site based committees would be one effective way to improve the industry and maybe mandating
ten or more employees on site, but that seems to be where trouble lies.
MR. MASTERSON: Well, that would only make sense if it's practical. When you're looking at a job site with five
contractors and each of them have two employees and you've got 300 of those, you're creating a bureaucracy of safety
committees that's uncontrollable.
MS. SUGERMAN: You may want to make modifications by, you know, a general contractor might have to have, you know, an
obligation or subs on the site with X number, you know. Maybe they'd have their own separate one.
DR. RINGEN: There's an answer in the back of the room here, I think. Mr. Pulver.
MR. PULVER: Safety committee on the job site is not the answer. I heard the word "bureaucracy," and I think
that's the problem is the more of that you have, the less effectiveness you're going to have. Safety meetings on the
job site are the critical point with documented agendas and documented subject matter, not a committee but meetings.
MS. SCHUSTER: The tailgate meetings, right.
MR. PULVER: A tailgate meeting, absolutely. That's the most important key. If it's documented and properly operated,
it's far better than trying have a safety committee for two people on this job site, four on that job site and three
on that job site.
MR. WARREN: We have three jobs (Indiscernible) that involve different employees from different employers and
different crafts, and it's documented, and everybody signs that document all the hazards were discussed and the
issues were discussed. That's how we would implement that.
MS. SCHUSTER: And that's some of what we've been talking about is actually allowing the tailgate meetings to be
formalized and to satisfy a lot of these requirements.
DR. RINGEN: We're involved in some general issues now that I want the -- are there any specific questions or
questions specific to what Oregon is doing that we want to raise now because then we'll get to the presentation from
Washington and we'll get back and hear from all three of them a little bit about these general issues.
MR. W. SMITH: My only one is subpart M was six foot, and Oregon is still ten foot.
MS. SCHUSTER: No. Actually we adopted -- I don't know if it was a wise decision, but we adopted the federal standard.
MR. W. SMITH: But in all these you still have ten foot, I think.
MS. SCHUSTER: There's a very specific part --
MR. W. SMITH: Yes, fall protection in construction I thought was ten foot.
MS. SCHUSTER: No. There's a very specific one for residential.
MR. COOPER: Ten feet for residential.
MS. SCHUSTER: Yes.
MR. W. SMITH: But this says -- right here on page 2 in this one, Oregon --
DR. RINGEN: I think we're getting -- oh, go ahead. I'm sorry.
MR. W. SMITH: Can I --
DR. RINGEN: No, go ahead, go ahead.
MR. W. SMITH: Yes. I thought that Oregon was ten foot based on this. Now, is there six foot in there?
MS. SCHUSTER: Yes.
MR. W. SMITH: Okay.
DR. RINGEN: With an exception for residential?
MS. SCHUSTER: Yes.
DR. RINGEN: Maybe getting this state input isn't such a good idea after all.
MS. SCHUSTER: Well, you know, what, I guess my comment on that would be was that we had a couple of lines requiring
fall protection in our rules prior to the federal rule, you know, that fall protection was required at ten foot. That
was that, and people understood that very well and complied fairly well with it. Once we adopted all of the new
rules, there's been no end of confusion as to what is required, and I think that this whole opening it up again and
making changes is going to lead to a great deal of more confusion.
MR. W. SMITH: I was just curious because I think ten foot should be the rule, not six. I mean, six foot is zero the
way you look at it. I mean, if you got to protect at six foot, you might as well protect from zero elevation, you
know.
MR. MUTAWE: OSHA always required fall protection on platforms in construction at six feet. Always been there, 550,
1926.550, platforms required guardrails or fall protection at six feet or more. General industry has four feet,
23(c), 1910.
DR. RINGEN: I want to give Washington State an opportunity to make their presentation also before lunch and to have
some of these -- this is obviously a general issue in many ways. Ana Maria, what do you have?
MS. OSORIO: I just have some general profile things because it's very hard to take these programs and not put them in
the right context. So I know you don't want numbers, but I'm going to ask the same thing that I asked of Utah --
MS. SCHUSTER: Okay.
MS. OSORIO: -- just approximately how many workers are in your state, ball park.
MS. SCHUSTER: I think it's about 1.5 million.
MS. OSORIO: And approximately how many are in the public sector?
(No response.)
Okay. And then how many compliance officers do you have?
MS. SCHUSTER: A little over 100, and in consultation we have 40.
MS. OSORIO: Okay. And then approximately how many inspections are being done?
MS. SCHUSTER: About 6,000.
MS. OSORIO: And your approximate budget, breaking that into a computation for me?
MS. SCHUSTER: I was just asking Bob. I think he knows better than I do. It's nearly $8 million, I believe, for two
years. Our is a biennial budget.
MS. OSORIO: And it includes fall compliance and consultations?
MS. SCHUSTER: Yes.
MS. OSORIO: I won't take anymore time.
MS. SCHUSTER: And actually we have --
MS. OSORIO: It would just help having a little background --
MS. SCHUSTER: Our funding is just like Utah where our funding comes from our workers' comp premium assessment, and so
actually we've done very well even when there were a lot of other fiscal cutbacks. Actually in the last legislative
session we gained additional funding for additional staff.
MS. PAUL: What percentage are you at as opposed to .25 percent?
MS. SCHUSTER: What?
MS. PAUL: What percentage of the workers' comp dollar are you taking, or you don't know that either? Okay.
DR. RINGEN: We will get to that.
MS. PAUL: Okay.
DR. RINGEN: We'll get the information before we're done here after lunch.
Washington State, what happened to Anne Foote-Soiza?
MR. SOTELO: I wanted to just maybe make a general statement is that a lot of the things we're going to be covering at
1:00 can probably be -- so if Anne could just give you a quick overview of what they're doing in Washington and then
we could maybe address them all later on. Is that -- would that work for you?
DR. RINGEN: That's what I had in mind. Yes.
MR. SOTELO: Okay.
DR. RINGEN: Or we can even wait with it until after lunch, and you could both do it together.
MR. SOTELO: Well, it just depends on how many questions you're going to have for Anne after she gives her --
MS. FOOTE-SOIZA: How hungry are you?
DR. RINGEN: Well, we're getting so hungry that we won't have any questions, I think, but why don't you go ahead --
MS. FOOTE-SOIZA: All right.
DR. RINGEN: -- and we'll take a few minutes and go over what you have to say and then we will take a break, and we'll
get back.
(Pause.)
MS. FOOTE-SOIZA: I think I have just barely enough for the panel of my talk, but I do have enough copies of the data
that I brought. I didn't know that data was going to be such an interest, but I happened to bring some information
with me.
MS. SUGERMAN: Excuse me. I just didn't catch your last name.
MS. FOOTE-SOIZA: Yes, that's okay. My name is Anne Foote-Soiza. It's hyphenated. It's S-O-I-Z-A.
DR. RINGEN: Foote, F-O-O-T-E.
MS. FOOTE-SOIZA: Yes, sorry.
MS. SUGERMAN: Thank you.
MS. FOOTE-SOIZA: With an "e," yeah. I'm an industrial hygienist in the policy and technical services
section of the division of consultation and compliance in the State of Washington's WSHA program. My partner and I,
my partner being Roger Dickey who is a safety expert, participate routinely and almost full time in construction
activities in the State of Washington from a policy, technical expert, training role for the WSHA program.
I will whip through, hit the high points of the discussions that were prepared for Mark Brown, and I'll just leave
the data. You guys can call me later. My phone number is in here, but I do have a lot of information that maybe some
states don't have a hold of. I did provide some to the center, gosh, I guess it was about six weeks ago. I'm not sure
if Knut ran into it, but to Robert, I sent some to Robert. Is his name Georgine?
DR. RINGEN: Yes, we got it. Yes, thanks.
MS. FOOTE-SOIZA: Yes, okay.
DR. RINGEN: We got a huge package.
MS. FOOTE-SOIZA: Yes, it was. I have the capability of what we call the data warehouse where I can query all the
claims information for all the State of Washington's construction workers to find out whether it's by accident type
or by occupation, by SIC, et cetera. I think that this group could learn a lot. Not that Washington's construction
industry is like the rest of the company but at least it might give you some sort of picture.
I believe that decisions need to be made by data and not by gut, and I know that data is a rare thing, but I think
that if you'd combine claims data with industrial insurance or industrial injury and illness rates, you'll get a much
better picture of what's going on rather than just the BLS survey.
Quickly, description of our program, to cover all employers with any employees both public and private. We have
approximately 130 safety inspectors. We have about 45 industrial hygiene compliance inspectors. We have approximately
25 safety consultants. We have approximately 16 industrial hygiene consultants in our program.
The structure of the department houses WSHA program being the consultation and compliance function of the state plan.
We have SHARP, which many of you, I'm sure, must know about, Barbara Silverstein being the head of that unit, which
is our safety and health research arm, which is independently funded from state plan stuff.
DR. RINGEN: This is really a research program aimed at using the data, both the BLS data and the workers' comp data,
to target hazards.
MS. FOOTE-SOIZA: Yes. Well, they don't target. They don't do targeting. I do targeting.
DR. RINGEN: Right.
MS. FOOTE-SOIZA: But they help me do my research. They do more in-depth research that I don't have time for.
One of the most significant things about State of Washington is that the claims and administration for all or most of
Washington's workers is housed in our department. That gives us a very unique opportunity to obtain all sorts of
information about how people get hurt and injured.
What I wanted to really emphasize today was the existence of how we deal with the construction industry in our state
from a department standpoint. We have a committee called the construction advisory committee. It is a tripartite type
of committee which is co-chaired by one representative from employers, one representative from the Building Trades
Council and our department, one person from our department.
We hold quarterly meetings, and it's usually a very large meeting between 50 to 100 members showing up on a quarterly
basis. It has been highly successful in producing all sorts of issue resolution, education documents. Typically what
happens is that a group will be having trouble either with the department or the department may be having concerns
about a particular industry, something is happening. These issues are brought to this construction advisory
committee, and usually what happens is a subcommittee is formed always with tripartite membership.
We have also insurance companies. Even though insurance companies do not participate in workers' comp in our state,
they do participate in the construction advisory committee because of the liability and tort and all those other
issues. So we bring those people in, subject matter experts as well.
We cover all aspects of safety and health, not just OSHA-WSHA type issues but workers' compensation issues,
permitting for construction employers, all sorts of issues.
I have briefly described its function here in the paper, and I won't go through that, but I do want to emphasize that
this is how we deal with the construction industry in getting issues resolved, and I might add, very fast on a
relative basis.
We have required written accident prevention programs since 1971 with that name, "accident prevention
program." The State of Washington has a long history of workplace safety requirements predating the OSHA Act.
Workplace safety is actually in Washington's constitution. We've actually had safety experts since the early teens,
1919, about there. Again, we require written safety programs, plans covering interactions with other contractors on a
multi-employer work site. All these issues, I'm sorry. I'm trying to cover all your questions before you ask them.
We have quite a necessary interaction through this construction advisory committee due to -- we had a court decision
called the Stute (phonetic) decision which is probably very well known amongst some
people anyway, and we have actually had a recent Mone (phonetic) which had to do with
indemnity issues in the construction industry, and all of these issues are handled again through the CAC, this
construction advisory committee.
We require safety committees for employers who have ten or more employees. However, we do require construction
foremen crew meetings once a week on the site. Participation on the safety committee is equal or greater. Employees
through election only, but we do let things slide because things happen.
We actually had a situation where the employer didn't want any management on the committee, so we had to kind of let
that go, although it didn't technical meet requirements.
Fall protection, you probably know about us, but I thought I'd go over it a little bit. We do not exempt any
activities from our fall standard. Our fall standard covers all construction activities, not just construction
industry. I think that's significant. I don't know if that's what OSHA does, but it's something important for us. For
example, public people, you know, they're classified as government but they're doing construction activities, pulp
and paper plants, aluminum plants, things like that.
We require cite specific written fall protection work plans. The standard was fully state (Indiscernible). It took
almost four years to come about to fruition and was adopted in 1991 with a ten-foot fall requirement, at least that
seems to be the topic of the day. We adopted then the OSHA equivalent version where OSHA was more stringent than what
we had adopted in 1991. We put in those requirements, and of course one of those things was a drop to the six foot
rule.
Feedback from our inspectors and supervisors, industry and labor, caused us to re-examine the standard, and we
suspended the six foot rule prior to the effective date of that part of the standard, and we are enforcing ten foot
only.
Our fall protection committee is working on some of the more side issues, probably some of these issues here, but
since we don't have the exemption for a lot of the things that are exempted in OSHA right now, some of those things
appear to be resolved in our state.
Again, I gave the name of our subject matter expert, and you can call him if you so choose.
I am the subject matter expert for confined spaces and other industrial hygiene issues in construction. We basically
have had, other than the normal adoption process of any new standard, very much feedback on confined space issues in
construction. We apply the confined space standard equally to all industries, although I do believe that we have
adopted just recently the shipyard standard which is the only unique confined space standard which is separate from
what we call our industrial hygiene confined space standard.
One of the main reasons on the lack of feedback from the construction industry, and there may be some others, is the
fact that we had a confined space standard for over ten years prior to the federal standard, and that may have had
something to do with the lack of any concern from the construction industry on a relative basis.
Moving on to enforcement activities, we have focused inspections. They're conducted routinely in Washington. We have
a construction targeting list which ranks employers by their most recent 12-month rate of injurious claims. This
provides the field supervisor inspector with the tool to figure out who needs to be seen first in their region. This
system is called the SHIM (phonetic) system. I don't know if you've ever heard Joe Dear talk about it, but he was the
person who first got the money from our legislature to develop this computerized system which uses claims information
to target injury and illness issues in our state.
We do have a problem, and, you know, I'm working on it all the time, and that is trying to find the construction
sites. You know, you've got this list of the top 200 construction employers who have the worst rate for this month.
The list is routinely updated on a monthly basis, and to try to find the construction sites is the challenge to tie
it to the employers who are on the list. It seems to be a constant challenge, but I understand that everybody has
that challenge.
MR. SWANSON: What are some of the things you use as source documents?
MS. FOOTE-SOIZA: We use the -- we have used DODGE before, but we're now implementing the DODGE on-line system in our
regions, and hoping to get that installed everywhere. We have it about in half of our state right now. Coming up with
the funding is the hard part, but there seems to be a pretty good -- and we use what we call local knowledge,
newspapers, you know, things like that. I mean, it's just -- and driving around, right. I mean, it's not very
sophisticated, but it seems to work. It works. I mean, if you have 10,000 -- we have 10,400 contractors on our
targeting list in rank order, from 1 to the bottom, and, you know, if you give your inspectors a list of the top 250
in your region, it's pretty easy to find at least one or two of them, and so that's how we get them. We're always on
the look out for the top 100 of course, but it's pretty difficult.
MR. SWANSON: Have you had any difficulty gaining access to a site that has been selected through this driving around
technology --
MS. FOOTE-SOIZA: No.
MR. SWANSON: -- and have any case -- see, we do have the Barlowe case going back to like
1976 where the driving around and selecting your targets is a no-no, but what you have done -- which would make some
real interesting case law for all of us. What you have done is you are not just driving around looking for
construction projects.
MS. FOOTE-SOIZA: Yes.
MR. SWANSON: But you are driving around looking for construction projects that also have their names on this top 200
for the month.
MS. FOOTE-SOIZA: Yes.
MR. SWANSON: And that would make a real interesting case if you have to get a search warrant based on their being on
this list.
MS. FOOTE-SOIZA: We haven't had any trouble supporting the targeting system in court, and we have done it several
times.
MS. SCHUSTER: We haven't either in getting a warrant, and we use it pretty much --
MS. FOOTE-SOIZA: Yes.
MR. BAGLEY: And we use a similar system, as they do, with the workers' comp information, and for the fact you can
pull usually -- not only does it have the list but it's got all the injuries on there, and it's got a ten-year
history besides that that you can bring up those individual ones, and if it's specific to that site, it definitely
helps validate to a judge when you go for a warrant.
MS. FOOTE-SOIZA: Right.
MR. SWANSON: Do you have any case law beyond just the warrant hearing?
MS. FOOTE-SOIZA: It never goes that far for us. We haven't.
MR. SWANSON: Does Oregon have some?
MS. SCHUSTER: Well, it's only at the workers' comp board hearing level. It hasn't gone beyond that to an actual
court, but --.
MR. MUTAWE: Perhaps driving around with seeing a site with an apparent violation from the street of scaffolding --
MR. BAGLEY: Public view.
MS. FOOTE-SOIZA: Public view or serious violations?
MR. MUTAWE: OSHA does that for that current violation, but if there's no apparent violation, you still could go and
do the inspection?
MS. FOOTE-SOIZA: Well, if they're on the list.
MR. SWANSON: Arguably if they're on the list. I mean, you could, and then you could get a denial, and then you'd get
the case law that we're all looking for that this is due cause to do that.
DR. RINGEN: But you don't have a list.
MR. SWANSON: No, we don't have a list. That's right. That's right.
MR. BAGLEY: The other benefit, too, is when you show that they're higher than their industry standard for that SIC,
that also helps validate, and our process also has that. So it compares it against that SIC, and it also pyramids
that SIC so it does the 4, 3 and 2 and 1, so it lets them know where they stand.
MS. FOOTE-SOIZA: Okay. I'm going to whip again.
DR. RINGEN: Whip.
MS. FOOTE-SOIZA. Okay. So this is how we start finding our places to go in construction. All construction inspections
start off as focused inspections. During the course of the inspection, if they don't have a written plan -- your
question earlier about seven subs who don't have anything under control, forget it. They're a nonfocused inspection.
They're a full wall to wall or whatever the issues are of the day, and I do mean -- this is programmed and complaint
inspections. Complaint inspections can be focused as well. I don't know if we actually got into that.
Washington's program started on the 1st of August of last year. We just happened to have for today's meeting 12
months of data which shows we've conducted 362 focused inspections and 2,953 nonfocused inspections which rounds out
to be 11 percent of all the inspections conducted were focused.
All I had was -- the 3,872 were focused inspections for OSHA's 25 states during that same time period, so that puts
us roughly 9 percent kind of in comparison to what OSHA has for its 25 states, so a little bit above the average per
state per OSHA, but you know statistics. You can do anything you want with them, so I don't know if that's meaningful
at all.
Serious general repeat violations for those focused inspections were cited approximately 1/3 to 1/2 the rate as those
inspections which were turned into nonfocused inspections. The average penalty per violations was roughly the same
for both types of inspections. The no violations inspections were 38 percent of the focused inspections and 24
percent of the nonfocused inspections. I'm always trying to get our people to reduce their no violation inspection
rate because that means other than a follow-up inspection that they're not getting to the right places in my mind.
I'm constantly trying to steer our staff to places where the hazards actually exist.
We start another program that I really have to mention, although some of you may know about it, which is called
safety plus. It is a third party verification system, and it is construction only, so I thought it would be important
to mention it. We want to recognize those construction employers who are proactive in safety and health issues. It
came out of the construction advisory committee as well as input from federal OSHA, and we formulated a tripartite
committee, rather large, 18, 25 people approximately, got together for a period of seven months and banged out a
policy and program, and it started in May of this year. Those who passed the application process was the review of a
third party construction safety and health professional and the safety plus oversight committee review which is three
members employers, three members employees, three members department oversight committee.
If the employer passes all those levels, then the director declares that employer a safety plus contractor, and the
work sites are free from programmed inspections as long as they remain in good standing.
MR. CLOUTIER: How long is that permitting process take from when a contractor files to --
MS. FOOTE-SOIZA: Frequently. Well, I'd say probably two and a half months. We haven't actually completed one yet
because it's only May when we started, but --
MR. CLOUTIER: So you don't have any contractors that have been designated safety plus?
MS. FOOTE-SOIZA: Not yet, no. We're in the process but no.
DR. RINGEN: What requirements will you have for employee agreements in awarding an employer essentially this kind of
certification?
MS. FOOTE-SOIZA: We require the written programs which have all sorts of requirements in them about employee
participation and safety inspections. We require an on-site safety professional on each construction site. We require
multi-employer work site policies that make the general pay attention to the implementation, not just the existence
of a written program but the implementation of a safety and health program of all of the subcontractors.
For the safety plus qualification, there is a black and white in and out that is even before the application process
which has to do with the fact that they have to be better than average both in their claims rate and their injury and
illness rate before they can even apply which actually has been quite a surprise to some contractors when they get
those numbers and they figure out that they didn't make the cut.
DR. RINGEN: Especially when the average is pretty poor.
MS. FOOTE-SOIZA: Yes. I don't know. It is State of Washington data. It's not national data because we want to be
ourselves, you know, and we actually had that information.
DR. RINGEN: But my question still remains.
MS. FOOTE-SOIZA: Yes.
DR. RINGEN: Can an employer unilaterally apply for this and get approved for it if he has all the provisions in place
that the program requires without having a joint application filed by the employer and the employees?
MS. FOOTE-SOIZA: The application has to be posted, and the oversight committee will request from the third party
verifier interviews of employees, and of course if a union is involved, then they'll be feeding directly into the
oversight committee, but those checks are in both the -- not in the application process but in the verification
process by the third party verifier and also in the oversight level before the recommendation is made.
DR. RINGEN: I have a lot more questions about this, but we should take it some other time.
MS. FOOTE-SOIZA: That's okay. Yes, I know.
Inspector training, there are ten safety subject matter experts. There are -- not ten -- five safety people, five
industrial hygiene people. There's ten in my group in the policy and technical services group. We are also burdened
with inspector training, and what I mean by burdened is we love to do it but where is the time. You know, that's the
difficult part, but we do conduct inspector training four times a year, once every three months. We have a designated
-- you know, you get hired, you come in, and you go through a series of three months worth of training. They
typically are week long sessions. Then we have a couple weeks off for on-the-job training, and then we have another
week, so on and so forth. We have basically copied the TED -- the OSHA training -- TED, I can't remember what number
it is, but we've outlined classes in how to become an inspector basically. It takes them about three months and is
interspersed amongst there with on-the-job training, and that's been operating for about a year.
In addition, when new standards come down the road, we have used satellite training. We have satellite link-ups at
every LNI office. About a year and a half ago our first satellite training was confined space training and lasted
about four hours. It cost us about $10,000 because we just didn't do -- we did interactive satellite training which
means you have to have phone lines open for four hours, long distance. We had satellite training. We had tapes made
so that later on new inspectors who came on board could -- I mean, it is highly variable, isn't it, about what it
costs, but it was a very good use for our time concerning the fact that we have approximately 200 people to train at
any given time.
We have CD ROM training too that we've incorporated. We have CD ROMs in each regional office starting two months ago
covering issues, specific issues, lockout, tagout, fall protection, HAZCOM, just any number of hazard identification
type issues that are generic no matter whether you're in Washington or Ohio, and I'm sorry for running over.
DR. RINGEN: No, no. You're not running over. We're running over. It's very good. Bill?
MR. MUTAWE: The suspension of the six foot rule in favor of the ten foot --
MS. FOOTE-SOIZA: Yes.
MR. MUTAWE: -- is that fall for residential construction only or is it across the board?
MS. FOOTE-SOIZA: I think it's across the board.
MR. MUTAWE: That would not be at least as effective as federal OSHA. I looked through the side by side comparison --
MS. FOOTE-SOIZA: I know what he's saying. I was hoping you'd plug your ears.
MR. MUTAWE: Your standard kicks on at four feet and not even six feet.
MS. FOOTE-SOIZA: Because of OSHA's suspension of certain issues, I think that it might be -- I know for a fact that
it's in residential construction, but I think because of a consistency factor, we did it ten feet citation because it
applies to all industries. We don't feel -- a fall by a residential contractor is the same as a fall by a plumber. I
mean, we didn't feel that -- we wanted to be consistent. We think consistency is more important than -- from an
employer community trying to understand issues --
MR. MASTERSON: And it applies to general industry and construction both --
MS. FOOTE-SOIZA: Right.
MR. MASTERSON: -- so that's actually more effective in general industry.
MS. FOOTE-SOIZA: Right.
MR. MUTAWE: But you (Indiscernible) to have four feet.
MS. FOOTE-SOIZA: No. Now, four feet -- now, I'm not talking about platforms and stuff. I'm just talking about the
roofing issues. Right. Yes, we still had the -- we actually have a four foot platform guardrail issue, but I wasn't
talking about that. I'm sorry.
MR. MUTAWE: Yes. If it's roofing, you know, we have that STD.
MS. FOOTE-SOIZA: Right.
MS. OSORIO: I just have a legal question.
MS. FOOTE-SOIZA: Okay.
MS. OSORIO: I know we don't have our legal person, but I'm not even going to get into the six versus ten debate --
MS. FOOTE-SOIZA: Yes.
MS. OSORIO: -- but can a state plan not be as effective or as protective as the feds? I thought that's part of
allowing states to have their own plan. If not, there's a lot of things that could be suspended. I'm just clarifying
my understanding. I guess I'm wrong in my understanding.
MS. FOOTE-SOIZA: How do you define "as effective?"
MS. SCHUSTER: Yes, it's how you define it, but let -- can I give an example also --
MS. OSORIO: No, I don't know the answer. I'm just seeking clarification because his is like --
MS. FOOTE-SOIZA: No, no. Okay. If you're talking about --
MS. OSORIO: In California we've already been stricter however you interpret it, so I've never heard them using the
suspension angle, but, you know --
MS. SCHUSTER: Let me provide one example, okay? Before federal OSHA came out with the new fall protection rules we
had been allowing the use of roof brackets for roofing operations, and for several years we were involved in this
heated discussion over whether or not this was as effective, and then when the standard came out, we proposed that
this should be part of the standard, and it wasn't thought to be a good idea then. So we still weren't apparently as
effective. Now it may become part of the rule at which point we will suddenly become as effective. I mean, sometimes
you can be as effective. It's just you're ahead of the times.
MS. FOOTE-SOIZA: Well, not only that but you see we --
MS. OSORIO: I think it's easier to say, though, but with the numeric thing, you're actually covering more people by
lowering the height. I mean, whether it's right or wrong, I'm not getting into that debate.
DR. RINGEN: Ana Maria, we have an attorney here.
MS. OSORIO: Oh, are you an attorney? I didn't know that.
MR. SWANSON: I try and keep that --
MR. RHOTEN: Well, I didn't know that either.
MS. OSORIO: Well, I'd like clarification. Go ahead.
MS. FOOTE-SOIZA: The issue -- I mean just to respond. Can I respond first?
MR. SWANSON: Sure.
MS. FOOTE-SOIZA: Just quickly. Is we exceed the OSHA standard in so many places that we feel that the overall effect
is more effective. Even though technically if you take a look at just that one loan issue, it is different from --
okay, on the books it's six, okay, but it was not termed to be effective because employers said they weren't going to
do it, you know, and so --
MS. OSORIO: I'm not debating whether it's good or not. I'm just trying to get clarification.
MS. SCHUSTER: That's a very interesting -- that's a very interesting point, because if you can achieve --
MS. FOOTE-SOIZA: Just don't cite it.
MS. SCHUSTER: -- greater compliance with something, then that could also be a measure of effectiveness aside --
MS. OSORIO: So that would be justification then for --
MR. BAGLEY: And their standard does say six foot. MS. FOOTE-SOIZA: Yes. The standard says six foot. We're just not
issuing citations until it's ten foot.
MR. SWANSON: In answer to a simple question of -- and there are all kinds of complications here, legitimate
complications, but in answer to the simple question of if the federal standard is at six feet, can a state go to ten
feet and be as effective as, and the answer is almost assuredly no, it can't. There are complications here because
you still have a six foot standard in Washington, and I don't get paid to address the FSO issue of is this as
effective as, and I'm going to say off in someone else's lawn. But in answer to your question, if it were the simple
question of six feet versus ten feet, is that as effective as, no; therefore, do you have a problem under the OSHA
Act, yes; and is the federal government going to do something about it, probably.
MR. BAGLEY: And we all had the ten foot rule years before OSHA even came into being, so we --
MS. OSORIO: I'm just saying if I was an employer and you cited me for that -- excuse me, vice versa. No, I guess --
actually you're going higher, so I wouldn't, but I'm just saying if it was -- forget it. I was just thinking of all
these permutations.
DR. RINGEN: Two more questions and then we're going to take lunch.
MR. BAGLEY: How did California settle their six month versus ten?
DR. RINGEN: Bob and then you.
MR. MASTERSON: On the chart that you've given us --
MS. OSORIO: As far as I know, they're enforcing six. I'll go back and verify.
MS. FOOTE-SOIZA: Yes, which chart?
DR. RINGEN: Bob, go ahead.
MR. MASTERSON: I'm just looking at page 2 of that readout.
MS. FOOTE-SOIZA: Okay.
MR. MASTERSON: And I don't see any headings, so I'm not sure what these numbers are actually indicating to me.
MS. FOOTE-SOIZA: Yes. I found out I was coming today yesterday while I was in transit, so let's see.
MR. MASTERSON: Well, the year is obvious.
DR. RINGEN: Are you on this page, Bob?
MS. FOOTE-SOIZA: Page 2?
MR. MASTERSON: Page 2, page 2 of the chart.
MS. FOOTE-SOIZA: The construction industry claim rates per 100 workers.
MR. MASTERSON: Yes.
MS. FOOTE-SOIZA: Okay.
MR. MASTERSON: Okay. I'm assuming that the second row is the number of claims.
MS. FOOTE-SOIZA: Oh, there's no header. Darn it.
MR. SWANSON: They call them columns.
MS. FOOTE-SOIZA: Yes, in the column. Yes.
MR. MASTERSON: Is that a true testament about your recordable injuries?
MS. FOOTE-SOIZA: Okay. I'm sorry. You're right. It didn't get in there. Okay, you want the headings? I'll tell you
the headings.
MR. MASTERSON: Would that be reportable injuries?
MS. FOOTE-SOIZA: Okay. After the year column?
MR. MASTERSON: Yes.
MS. FOOTE-SOIZA: After the year column is the number of claims.
MR. MASTERSON: Okay.
MS. FOOTE-SOIZA: I'm sorry. I can redo these.
MR. MASTERSON: No.
MS. FOOTE-SOIZA: Number of claims. The next column over is the number of worker hours reported.
MR. MASTERSON: Yes.
MS. FOOTE-SOIZA: And then --
MR. CLOUTIER: Number hours of exposure.
MS. FOOTE-SOIZA: Number of worker hours. It's how we count workers.
MR. COOPER: Hours worked.
MS. FOOTE-SOIZA: Hours worked.
MR. MASTERSON: Hours worked.
MS. FOOTE-SOIZA: Right.
MR. BAGLEY: Number of employees times hours, right?
MS. FOOTE-SOIZA: Right. Number of workers times 2,000 hours is --
DR. RINGEN: That's correct.
MS. FOOTE-SOIZA: Yes, and then the next one over is rate, and I don't know what that --
MS. OSORIO: Rate per 100 workers. Okay.
MS. FOOTE-SOIZA: Rate per 100 employers, yes. I tried to make it the same as the BLS rate so you can see the issues.
DR. RINGEN: This is the rate for total injuries and illnesses, not just lost time.
MS. FOOTE-SOIZA: Okay. Broken out by SIC, correct, ranked by the highest average rate over five years. MR. MASTERSON:
The question I have to ask then is how would you explain --
MS. SCHUSTER: But is it total or is it lost work days only.
MS. FOOTE-SOIZA: Number of claims.
MS. SCHUSTER: It's just pure number of claims?
MS. FOOTE-SOIZA: Right.
MS. SCHUSTER: But are they lost work day claims or total?
MS. FOOTE-SOIZA: Total. Go ahead.
MR. MASTERSON: Okay. If this is based on the same format that BLS uses, how would you explain that there's an
incident rate of 29.3 when BLS is only about 13, 14 for that industry?
DR. RINGEN: This is based on workers' comp claim rates --
MS. FOOTE-SOIZA: Right. These are claims --
DR. RINGEN: -- not employer reported.
MR. MASTERSON: BLS is working off of reportable claims. This is not recordable.
MS. FOOTE-SOIZA: No, they're not claims at all. BLS data --
MR. MASTERSON: Reportable injuries.
MS. FOOTE-SOIZA: For those of you who may or may not know what BLS data is, BLS data is, remember, voluntarily
reported, recorded on a separate piece of paper, injury and illnesses --
MR. HALL: Excuse me, folks. Don't talk over each other, please. The court reporter is having a lot of trouble when
you do that even if it's an aside.
MR. W. SMITH: His eyes are rolling around in his head back there.
MS. FOOTE-SOIZA: Okay. BLS data, which I've also provided in here -- that's why I said you should look at both
because it's very significant, the combination of the two. The State of Washington, since we are one and only
resident of all that data, when a worker gets hurt, right, the claim goes in and it's recorded in LNI. Typically
there are more claims reported than there are recordable injury and illnesses, recorded by an employer on his OSHA
200 form. It's not always true, but it is usually true. You know, we know the definition of recordable injury and
illness. There are differences between what's reported to be recorded on the OSHA form 200, which is where the BLS
survey get its information from, and it is voluntarily reported, and there are all sorts of other restrictions about
BLS data as well.
For example, how they collect it from year to year changes. Sometimes they pick 50 employers who have 50 to 100
employees. Sometimes they collect only those people who have more than 500. Sometimes they collect 10 to 50. You
should always be suspect of data that's BLS data, not that it's not good information but you need to know how it's
collected. Now, claims data is just another source of information where you can get, you know, a picture.
The data that I provided for you here in this chart is all claims, both noncompensable, non-time loss and time loss
or lost work days. Okay.
MS. SCHUSTER: That's also 100 percent, the claims of 100 percent --
MR. BAGLEY: Right.
MS. SCHUSTER: -- whereas the BLS is a sample.
MR. BAGLEY: Statistical survey.
MS. FOOTE-SOIZA: Right, right. Yes, it's 100 percent. That's a very good point. No matter whether -- when you collect
BLS data from the construction industry, you don't hit every construction employer. You only hit a sampling of those
employers.
DR. RINGEN: It's almost 100 percent because the self-insured don't report all of it. We know it.
MS. FOOTE-SOIZA: Naturally.
MS. OSORIO: Of the entire work force, what percentage is not being covered because the self-insured would not figure
into the WSHA data bank, or would they?
MS. FOOTE-SOIZA: No, it does.
MS. OSORIO: It would?
MS. FOOTE-SOIZA: Self-insureds report.
MS. OSORIO: Then what percentage are you missing because I remember Barbara telling me she doesn't capture 100
percent. What is missing?
MS. FOOTE-SOIZA: Well, we don't cover harbor workers.
MS. OSORIO: Oh, and that's not --
MS. FOOTE-SOIZA: Yes. From a construction industry standpoint, the claims are -- it's just that we don't cover all
workers because the Harbor Workers Act is run by insurance companies, and I guess DOL collects that information.
MS. OSORIO: And these are claims not necessarily that result in an award, right?
MS. FOOTE-SOIZA: These are claims that are either medical only, you know, just paying the bill, or lost work day and
medical only combined.
DR. RINGEN: They're all closed claims.
MS. OSORIO: Oh, they're all -- that's what I'm saying.
MS. FOOTE-SOIZA: They're all closed.
MS. SCHUSTER: They're all accepted claims, aren't they?
MS. OSORIO: That's what I'm saying. They're all closed.
MS. FOOTE-SOIZA: They're all accepted claims.
MS. OSORIO: Okay, okay.
MS. FOOTE-SOIZA: Now, I did put down here -- there is a chart further back where I wanted to try to emphasize those
more injurious claims, and that's why I put down compensable, which is time loss, lost work day, no matter what you
call it, compensable, fatal, total permanent -- this is on page 1. I guess it's the next chart down. Boy, these
things copied well. I'm sorry. It looks like this (Indicating). Okay.
And it's a chart of compensable, fatal, total permanent disability and kept on salary, falls from elevation claims,
because you seem to be very interested in falls from elevation, and this is how we justify our strict fall protection
standard is because we just take this to whomever wants to see it and say, look, this is what's hurting people really
bad. It's also ranked by the highest number of claims.
I also put in the back, for those of you who are more interested in occupations versus industry, the same type of
charts.
MS. OSORIO: Yes.
MS. FOOTE-SOIZA: And I did it really fast, and I'm sorry, and I missed the headers, but --
MS. SCHUSTER: If people are interested, I can supply a lot of that for Oregon too because we have been putting
together a lot of that data recently. It's pulling out specifically four different construction groups and trying to
see where a lot of the injury is occurring.
MR. RHOTEN: I would really like to have that kind of information. I think from the union's side it's important to
have exactly what the major causes are and pass that on, so that we could put emphasis in our training program.
DR. RINGEN: Okay.
MS. SCHUSTER: And very specifically ladders. I mean a lot of the falls far more were for ladders than anything.
MR. BAGLEY: And one thing you have to keep in mind is each state, whether you're federal state or state plan state,
everybody's workers' comp laws are a little different. So how you report, how you gather, how you collate all this
data can make a big difference. NIOSH does a good job, I think, in how they try to make it one type of a reporting
criteria, but every state is different, so you can't take it that it's the same.
MR. RHOTEN: I think it's very valuable information for us to have.
MR. BAGLEY: It is a good tool, and I will make one comment, not to say BLS data is incorrect or invalid. It's a
statistical survey, and it's a good benchmark to use to compare this type of information to. Even though you have
little apples and oranges in a way, it's a good tool to use, and so BLS is an important issue that we have to keep.
We've been pushing it from our state plan, and I know other states, Washington included, want to keep BLS information
going, and that's what we're going to lose if we're not careful because they were going to cut all BLS occupational
safety and health information.
MS. FOOTE-SOIZA: That's right.
DR. RINGEN: If we're not careful now, we're going to lose our lunch that's out here waiting for us, but this is very
interesting. We're going to get back to it afterwards.
One of the things that is very interesting is the link between OSHA and the workers' comp program that can be done on
the state level.
MR. HALL: Okay. Before you all leave, the lunch --
DR. RINGEN: Just a minute. And immediately after lunch we'll have two employer representatives and one and a half
union representative at least give an overview of their -- give a reality check on what these folks have talked
about.
MS. PAUL: What time do we start?
DR. RINGEN: We'll start again in about half an hour because I think we have lunch here and that will be enough time.
MR. HALL: Before you all leave, the safety and health work program people will go down, have their lunch down there
and stay down there. The rest of us will get our lunch down there and go either back here or this break out room or
wherever.
MS. PORTER: There's a picnic table outside. I mean because you all are going to have a working group meeting over
lunch. Yes?
MR. HALL: Yes.
DR. RINGEN: It will be short.
(Whereupon, at 12:40 p.m., the hearing recessed, to reconvene at 1:10 p.m. the same day.)
A F T E R N O O N S E S S I O N
1:35 p.m.
DR. RINGEN: Mike Sotelo from AGC, Washington State. Thanks for taking the time, Mike.
MR. SOTELO: I want to thank you for asking me to come speak here. I was asked by Pete Chaney to represent a
Washington State plan, and the company I work for is a mid-sized general contractor. We do roughly $40 to $50 million
a year with 100 to 150 employees, and there's a reason for me telling you is that W.G. Clark Construction is probably
a product of how the state fund system, the WSHA system works in the State of Washington, and there's been some very
positive things that have happened in regards to the partnerships that have been established between labor,
management and the department on a number of things that Anne had mentioned that have impacted our company in a
positive light. Nothing is perfect of course, and I'll talk about those issues also.
But I guess back in 1987 is when we took a serious look at construction safety, and at that time the firm was roughly
80 years old, and we had an experience mod factor of 1.29, which was very high, and it was costing about a half a
million dollars a year in workers' comp premiums.
DR. RINGEN: You said 1.29?
MR. SOTELO: Yes, 1.29. Understand that anybody that sits up here and tells you that money isn't the main driver for
workplace safety, I'm not sure if they're telling you the truth. It's definitely an issue, and high premium means
lots of accidents. High premium makes us less competitive. Therefore, we took a strong hold on that at that time.
What we did is I called the Department of Labor and Industries, WSHA and their consultation end of it and had their
people come out to our jobs and teach me how to become a safety professional.
I was hired at W.G. Clark as a laborer back in 1984. I currently hold the position of human resource and safety
director, and I learned by going out there and doing trial and error, I guess.
I spend a lot of time with the department on both ends of it because industrial insurance and safety and health are
pretty much tied together in regards to attitudes and the way that things work. On the industrial insurance end of
it, there was also consultants that taught us how to do return-to-work programs, be proactive with the worker,
establish provider protocol in order to make -- in case there was an injury, to make sure that this person was back
to gainful employment as fast as possible.
The questions, as far as industry-wise, of what is the special attention that was given to W. G. Clark and the
construction industry is there was a lot of special attention, and that's because Joe Dear noticed in 1980 or 1990
that, you know, we had a lot of falls and a lot of deaths, so that's when the construction advisory committee was
formulated. Joe Dear was the one that came up with this idea, and as Anne said, it's represented equally by labor,
management and the department, and they do get a lot of things done.
One of the things that we started up with, because of tort liability, we started the Washington State construction
safety task force which is basically dealing with the Stute decision, and we came up with
guidelines, a regional directive for the compliance officers because we were not only getting exposed on tort
liability but we were also being impacted by parallel citations issued by the department. So, therefore, if the
subcontractor got a fall protection violation, we did also, and it was getting pretty expensive.
Because of the fatalities we had over at the Kingdome last year when the crane bent, we started a crane safety task
force, and the money that was levied in fines to the employers was put into a fund to assist in training for all
industry throughout the state.
Another program that works with safety and workers' comp is you can get a 15 percent discount on your workers' comp
premium, and yes, it goes to the worker because in the State of Washington, we're one of the only few states to where
the employee pays a portion of the workers' comp premium. It's a small portion, and it's based depending on your
experience factor. So if you have a high --
DR. RINGEN: For the medical part.
MR. SOTELO: Pardon me?
DR. RINGEN: For the medical part.
MR. SOTELO: For the medical portion, and so it could be very expensive to work for a company that has a poor safety
record, or dependent on your safety record, it might not cost you that much money, but the 15 percent discount was
reflected to the worker also.
There was a number of companies that took advantage of it. I think it resulted in about a half a million dollars in
savings to about 12 or 13 companies over a two-year period, and that was conducted through the AGC of Washington.
Also in the State of Washington there's a retrospective rating program to where you bet the state that you're going
to be safe, you're not going to have injuries or you're not going to have long-term time loss, and you can get a
portion of your premium back. The down side is whatever you bet, you pay the additional cost. If you bet 10 percent,
20 percent, you pay 20 percent more of what your premium is, but that's 1/3 of the workers' comp system right now is
that people are in retro. The stats between people that are in retro as far as accident frequency and time loss days
is dramatically different than people that aren't. These are incentives that basically go for the wallet, but the end
result is that less people have been getting hurt so far.
I guess the other special attention that is -- if the stake holding -- you know, I heard someone say just a minute
ago, how do you define stake holding. I think Mark Brown is probably the best guy to answer this, but I've talked to
Mark Brown a dozen times, and every time he says that if all three of you don't agree on it, then it's not going to
go, and that's what we go into each and every one of our meetings with this in mind, and some things die because we
do not agree on it.
But what has happened with our relationship with the unions is it's opened up dialogue for a number of other issues
that we normally would never come to the table and talk about because safety and health is kind of a win-win deal for
everybody. Nobody wants anybody to get hurt. Contractors don't want their employees to get hurt. They certainly don't
want to pay the high premium, and so it's been an easy sell. It's been very effective.
The special attention to commercial versus residential in Washington seems like in my opinion there's a higher focus
on commercial and the numbers are out there a little bit more, I mean, as far as the number of people, and of course
the commercial end is saying, hey, you know, why don't you pick on those guys, and the other ones are saying, well,
no, commercial people are killing everybody, so we're at impasse on that.
In regard to the fall protection, you know, when it came to the six foot, we just waited for WSHA to say we're not
going to enforce six foot; we're going to go with ten, and we've been doing that every since, and I'm on the fall
protection task force, and there again, with labor and the department, we've come up with a revised standard that we
think is going to fly so long as you don't jump in and screw it up.
DR. RINGEN: We're here to help you.
MR. SOTELO: On the safety and health programs, do they work, me and my boss testified to the Senate years ago for --
I think it was Congressman Ford when he was trying to pass that legislation for safety and health programs. We were
in favor of it. We've been doing it for many years. To me it's a pre-job hazard analysis. We don't have a problem
with talking about the job before we start it. We're talking about workplace safety with the subcontractors. It
actually makes your job run smoother because you'll know when you need material out there, man lifts, certain things.
It just makes sense. It makes absolute sense, just good business management. We don't look at it as a safety and
health written plan. We look at it as a business plan, an action plan for construction. I'd say that the lion's
share, the prudent contractors in Washington, there's quite a few of them, exercise those practices, and they do a
pretty good job. I'm familiar with your safety person or Herb Heinhold (phonetic) was working for you. You guys do a
stellar job in the State of Washington. You have a great program. So for us the prehazard analysis is a definitely
something we want to do.
The other thing that we do is that before the safety meeting we have an employee and the manager walk around the job
site and do a prejob just for that week. It's a weekly safety meeting, and we sit down and we conduct our safety
meetings, and we talk to everybody about it because one of the things that we were finding out is that by getting one
of these canned safety meetings things -- in October we were talking about heat, you know, overheating, which didn't
make any sense in the State of Washington. So we decided that we had to make things more site specific, more industry
specific.
We've been doing written fall protection plans, site specific fall protection plans. A lot of the associations in
Washington don't like them. They think it's a lot of extra paperwork, but I fall back to the fact that it's just
making you think one more time before you do anything. So I'm pretty much an advocate of that.
As far as confined space goes, I'm a general contractor. I really don't deal with that anymore or that much. We do
with our subcontractors. There's a written program that we provide or make them provide to make sure that they
comply, and we haven't had really any problems. Everybody has been doing it so long in Washington that these things
just don't seem to be as much of an issue as when I bring them up at the national AGC committee and they tell me that
I'm out of my mind.
Focused inspections, we've been doing them for a little while. To me they save a lot of time because otherwise this
guy could be on your site for eight hours, and they do it. You know, they take their lunch, and to me it doesn't make
any sense that they would spend that much time on a job, but maybe if you have a big job, they need to do that, but
anyway, that has saved us some time. They do start off as a focused inspection.
Jim Lapping was one of the first people we contacted at OSHA to start talking about this focused inspection in
Washington and then also taking it to the safety plus, which we're real excited about that Anne also told you about.
Focused inspections do make you focus on the real issues. Although electrical was not a big concern for the State of
Washington, that wasn't our fourth most biggest injury. I think it was --
MS. FOOTE-SOIZA: Health hazards.
MR. SOTELO: Health hazards, right.
MS. FOOTE-SOIZA: Cancer.
MR. SOTELO: But we wanted to be consistent because we were concerned with the out-of-state contractors coming in to
Seattle and making sure that there was some consistency, so we developed this task force with OSHA's help. I'll tell
you that OSHA has been very helpful on a number of these things, and I think a lot of that has to do -- well, I want
to thank Jim. He was real proactive.
DR. RINGEN: Just a clarification on this about the four issues where you came up with cancer. Which data were you
using to --
MS. FOOTE-SOIZA: Construction fatality claims over a five-year period.
DR. RINGEN: Okay. The fatality claims.
MS. FOOTE-SOIZA: Right. It's not the same count that OSHA gets.
DR. RINGEN: No.
MR. SOTELo: Right. But we felt that that was -- we went with the four because we wanted to have some continuity.
As far as enforcement versus consultation, I told you I wasn't going to be sitting here giving you a gleaming report
of the Department of Labor and Industries because I have some opinions on that. They're not too critical, but there
is some issues that we are addressing currently. I mean, they are listening, and labor is sitting there in unison
with us to address these concerns.
There really isn't much to say in enforcement. I think they try to do a good job. I think they come out there, and
they certainly do care. There is some of the compliance or a cop attitude that you deal with, but I think anybody
with any kind of company would probably deal with the safety inspector or a person that maybe takes it a little bit
too far, and we deal with that, but that's not the lion's share.
They do try to match up industry specific people, people that were like expert layers or masons or whatever to deal
in construction, so there is a little bit of background. As Anne said, they don't like to train industry recognition
or hazard recognition. They like to train for safety enforcement.
They are getting better as far as telling you what you can do right. It wasn't too long ago they said, you can't do
that, and you said, well, what can we do, and they said, well, that's not my job to tell you that. Now, that's a
little frustrating as a stakeholder, but that was just what we were dealing with, and I think because of Mark Brown
and the people that he has working with him, Anne, that attitude is changing, and it's becoming much better.
On the consultation end of it, it's very good. They really do go out there and train you. I've had these guys at 6:00
at night, Saturday mornings. There's no issue as far as them showing up, but it takes about six weeks to get one, and
you know construction. We don't necessarily -- you know, six weeks is a long time out to be preplanning, you know,
for a consultation to come out, and so the biggest problem with consultation is there's not enough of them. I really
have not seen any strong effort by the department in regards to changing that as much as I'd like to see it, because
as far as I'm concerned, if you had people telling you not to have accidents, then you wouldn't have to go have
people go out and write citations.
MS. FOOTE-SOIZA: Consultants are state funded in our state.
MR. SOTELO: Not OSHA.
MS. FOOTE-SOIZA: Not OSHA.
MR. SOTELO: Yes, right. So we have always lobbied, as well as with labor, to get more consultants out there because
we'd like to keep the accidents from happening.
The compliance officer training, I've been a real critic of that, and I think it has gotten better more so in the
last two or three years than it ever has before. Once every three months is good, but I think they could probably use
more of it. I know probably -- it's not realistic to do that, but they could use a lot more training as far as I'm
concerned as far as the interpretation of the law, and I think this is consistent with anywhere in the country, at
least it's to my knowledge that.
Sometimes the laws are so vague and the interpretation is entirely up to the compliance officer. This does no good
for any contractor, because depending on what region you're in, you have a different interpretation. There's a
different regional administrator who has a different way of looking at things, and so decentralizing the state WSHA
system was a bit of -- to me it wasn't necessarily the best idea because then you had six different people making six
different decisions. I mean, they're managing over a number of people.
So what I've always been pushing for is some continuity, for them to be doing some cross training between the
regions, and I understand they're starting to do that now, but it needs a lot of work.
To change it, the way to change it is what I've asked to do and what the agency has asked to do for years is we would
like to -- labor and management would like to participate in the training of the compliance officers. I mean, to me
it just makes perfect sense to have stake holding input on developing a program or a continuity or consistency within
your system. I think that Mark Brown, who is very receptive to this, he's trying to figure out a way how we can do
it. In the past it fell on deaf ears.
I've had the opportunity a couple times in the capacity -- I was chairman of the AGC safety committee -- to go in and
train compliance managers, people in more the management type deal because of the (Indiscernible) citation issues and
things that were happening to us, and we were just trying to get a feel of what exactly the department wanted because
we really didn't know.
MS. FOOTE-SOIZA: And we should point out that the compliance managers were not WSHA people.
MR. SOTELO: Right, right.
MS. FOOTE-SOIZA: Had no background in occupational safety and health.
MR. SOTELO: No. Because it was a reorganization, everybody is downsizing and stuff --
MS. FOOTE-SOIZA: You know, a manager is a manager is a manager.
MR. SOTELO: You know, there was bodies flying everywhere at the department in the last couple years. When you're
trying to keep people from losing their job or they had 30 years in the business, and so they stuck them in places
that, you know, they didn't belong clearly, but they're starting to weed out. They either quit or take an early
retirement, or they get tired of getting my phone calls, and then they, you know, decide to go into a different
occupation.
It's getting better. It has definitely gotten better, but some of the things they're still doing is, you know, you
get a job site visit up in Bellingham and you get a citation and the compliance officer is a blasting expert. It has
nothing to do with construction, and so therefore, there isn't enough training in that regard to be able to make a
bona fide inspection in our opinion, but that's -- they're starting to train the blasting expert so they can do a
little bit of construction, and I guess that's better than nothing.
I always thought that if they started paying these compliance officers real money, then maybe you'd get some viable
people that wanted to stay. I mean, from what I understand, the wages of a compliance officer is worse than a
teacher, you know, which is another underpaid issue, and I always thought to make the system better, why don't you
make this job a little bit more desirable to where -- it seems like every time I turn around, a state employee has
gone to work in the private sector because there's just not enough money in it, and so that would make people want to
have the job, and give the inspectors the ability to give good advice. There's just so many attorneys out there right
now that I know they're scared to death to give you any kind of advice because they might be exposed or whatever,
and, you know, we deal that way too at W.G. Clark because we're afraid to say things because we don't know what the
end result is going to be, but it sure would be nice to be able to -- there's some inspectors out there that really
know what they're talking about. They've been in the industry for many years, and they could really help a
construction company. They really could, and it would eliminate this adversarial relationship that has resulted
because of it. It's not as bad as any other state that I've worked in, but it still has some problems out there, and
it also has some tenured employees that basically are waiting around for retirement that clearly don't know what
they're doing.
But considering the size of 300 -- I think there's 300 people that work in WSHA, is that correct? I'd give them a B+.
They've done a real good job with W. G. Clark's own personal involvement with the department, and I honestly can say
that it was, you know, the department that has turned our company around as our experience factor went from a 1.29 to
a .3006 or .3004, and we've only had one recordable time loss since 1987. Now, a lot of that could be considered
luck, but I think a lot of it has to do with the fact that what the department did is taught us -- well, first off,
it doesn't make financial sense to be unsafe. Second is that building the rapport with your worker in regard to
whether he's injured or just accident prevention, safety and health committees, involvement, the TQM process, stake
holding with labor, stake holding with the Department of Labor and Industries and OSHA, who, as I said before, did a
wonderful job as far as their input, that is clearly the way to keep people from getting hurt.
I was saying in the other room that, you know, one of the things that I deal with on the national committee, it seems
like 90 percent of safety and health issues now become political, and every time -- you know, I go to the national
safety and health committee, and it's more lobbying than actually thinking about what we're doing as far as for the
worker, and bottom line is if you provide a safe place for the worker and people don't get hurt, then you don't need
this over regulation. You don't need all these things, because if you have the right attitude, it will work out, and
I think the department has taught that to W. G. Clark Construction in regards to where Chris Clark knows who works
for him, and he really does care about the worker.
And so how would I rate the department? I think they've done a good job. They could always do better, and our story
at W. G. Clark is very similar to a number of contractors, I'd say the lion's share of contractors, that are very
proactive in safety and health.
DR. RINGEN: Mike, in Washington State, it's probably the state right now that's doing more than any other state on
musculoskeletal problems, and if you look at the workers' comp data in Washington State, they just stand out like an
enormous red flag. How do you and your company view that activity?
MR. SOTELO: Well, I mean, you know, speaking as my company -- and I'd just leave it that because I can't really speak
for AGC in this regard. Speaking as the company is that, you know, statistics are there, you know, as far as what's
causing these injuries, and the money that -- the way I see it and the money that I've spent for the company in
regards to addressing those issues -- and it's still very vague, and that's one of the biggest issues is that really
there's no finite things that have come up, but I mean, what's wrong with lifting the work station a little bit
higher or maybe making, you know, people lift 60 pounds instead of 90 pounds? It just makes sense. You know, I came
from the field. I was a laborer. I would have loved to pick up 60 pound sacks of concrete instead of 90. It would
have been great. I mean, my back is shot.
So the ergonomics -- right now they have the proposed -- it's a guideline right in the State of Washington. There's
ergonomics guidelines. They're good guidelines, you know. Now, can I sit here and say that should be a standard
across the country, I'm not qualified to say that.
DR. RINGEN: Should it be a decision point in focused inspections?
MR. SOTELO: Not yet because that is the hottest potato in the world right now, and a focused inspection is basically
a way -- to us was an intro to working with the department and trying to alleviate some of these bogus inspections.
You bring ergonomics into this arena, you're going to have every contractor in the world spending a lot of money to
delay this thing, you know, longer than fall protection. You know, it's going to be -- I'll tell you I don't think
that would work right now.
MS. FOOTE-SOIZA: Can I make also a comment?
DR. RINGEN: Sure.
MS. FOOTE-SOIZA: From the compliance side of the fence now, put on my compliance hat. If we threw ergonomics into
focused inspections, our inspection rate would go down, very much down, and one of the ways that we feel we implement
safety and health in the workplace in our state is by having that face-to-face employer contact. We think that's
critical, and if we do program inspections in regards to ergonomics, our numbers will be cut down to probably 30
percent of what we do now.
MR. SOTELO: You know, if you told everybody --
DR. RINGEN: You'd have face-to-face meetings with lawyers.
MR. SOTELO: Right. But if you told -- if everybody would understand it -- the problem is lack of knowledge, and there
has to be some real strong effort by you people and all the people that have to say, okay, this is what's happening
out there, and then it makes a lot more sense to be taking these precautions, but at this point, you know,
construction, you know, we're Neanderthals. I mean, come on, give us a break. You know, we're not high tech. You
know, we're getting there, and so the lion's share of these companies don't have a corporate safety director. They
don't have -- they have people out there that's based on productivity and scheduling, and so right now I see the
industry really changing and starting to come in the right direction, but you have to -- you know, one, you have to
teach people how to -- I don't even know how to spell ergonomics. I mean, you know, you have to teach people how to
know what it means, and then you have to train the inspectors to know what the hell it means too, you know, which I
seriously doubt they do. Imagine having a focused inspection by an inspector that doesn't know what he's doing. The
whole thing would go sideways.
DR. RINGEN: Any comments, questions?
MR. SOTELO: Well, thanks for asking me here.
MR. COOPER: I got a question.
MR. SOTELO: Yes.
MR. COOPER: You then anticipate with your labor management group some activity with the state in determining the
criteria for compliance officers?
MR. SOTELO: Yes.
MR. COOPER: We in 1980 in OSHA have spent many, many meetings on putting together that criteria and still haven't.
MR. SOTELO: Really.
MR. COOPER: And I'd be glad to give it to you.
MR. SOTELO: That would be great.
MR. COOPER: It went up to the Secretary of Labor at that time and was denied because of funding. We had pushed for
construction CSHAs, to separate the general industry and construction as two different CSHAs. You could cross over if
you wanted to, but there would be a construction CSHA, set the criteria for that CSHA for construction based on
experience, et cetera, et cetera, plus rates, but it's against tradition at OSHA to do that. They claim that you have
one compliance officer, and he or she would inspect a meat market and NASA projects, and I come from the union, but I
can tell you I know nothing about electrical work, and I should never even get involved in that. I know nothing about
-- a little bit about his, but it's one of the big problems we have is inspectors that are not that qualified to be
inspecting what they're inspecting.
MS. FOOTE-SOIZA: Does OSHA have what we call selective certification? When we go out to hire construction and CSHA,
we have this thing in our personnel system called selective certification where the supervisor can add the
requirement for X number of years of construction experience or, you know, whatever, Spanish speaking, you know, like
for an agriculture inspector. Agriculture CSHA, we might put on, you know, must be fluent in Spanish. Does OSHA have
that capability?
MR. SWANSON: OSHA does not. Mr. Cooper is right. We hire compliance officers, and our compliance officer is a
compliance officer and should be able to do a meat packing plant and NASA, and it's a system that's worked very well
for 25 years and made us the organization that we are today. MR. COOPER: Yeah.
MR. SOTELO: I wanted to make one last comment, and this came up yesterday at one of our meetings with the labor and
management and the department is that, you know, a lot of things could be helped, you know, especially the impact of
this group here and the AGC. I mean, I think that we could all agree on one thing is that why couldn't -- it seems to
be -- we're a private works contractor. We don't do prevailing wage work, and so we don't fall into the public works
arena which is basically a little bitter. That's what you have to be. There's no criteria other than a bond, a pulse
and a low bid to be a contractor.
MR. O. SMITH: Responsible low.
MR. SOTELO: Yes.
MR. W. SMITH: That word is left out a lot, responsible.
MR. SOTELO: Yes. It wasn't three or four years ago, and right now it's happening in downtown where there's a number
of public works projects that are paid for by the state that have no criteria for safety whatsoever. I mean, I wonder
if the federal OSHA building was going to be a new building, would you require experienced factors from -- and I'm
not trying to put you on the block. I'm just saying right now the attitude of government itself, they're out there
regulatory, they're doing inspection, they're citing, but it doesn't matter who builds their buildings, and to me it
makes absolutely no sense. If you wanted to -- you know, if you wanted to have a win-win deal, you know, why don't
you get the good players out there bidding the work? Then companies like ours and J. A. Jones would start taking a
look at some of these other public works projects, because right now it's impossible to be competitive because the
companies that are getting these are paying nothing for safety.
DR. RINGEN: Bruce is going to give a legal response.
MR. SWANSON: No, this is not a legal response. It's just an anecdote. I agree with you 100 percent. OSHA agrees with
you, much of OSHA agrees with you. We drafted an executive order a couple years ago where we tried to establish that
on federal public works jobs there would be a prequel, and you had to make a couple of hurdles, low hurdles, before
you'd be eligible to bid on the billions of dollars that the federal government spends on construction annually, and
that's not dead. It's in a bottom drawer. It got torpedoed by an organization, AGC, who came in --
MR. SOTELO: That's not surprising.
MR. SWANSON: -- and talked to the assistant secretary a couple years ago and told them about where the sun don't
shine, so that's the bottom drawer, where it is, but, no, I agree with you, and it's got to come back out of there.
DR. RINGEN: Steve.
MS. FOOTE-SOIZA: It's something I think we're going to push for in Washington, though.
MR. COOPER: The minutes of our last meeting, Mr. Chairman, the minutes of our last meeting I asked, you know, I would
like to have a transcript. At our last meeting this was discussed, and I brought it up, and one of the big culprits
in this whole mess is that the Department of Transportation. They across this country build our bridges and all our
superstructure, infrastructure, and just no requirements in the contract that says you will abide by all federal and
state safety regulations, period, and that's the federal government. I think the DOE also enters into this in some
cases. It's not always perfect as Hanford has its regulations.
In the minutes in this last meeting, which I just received, we point out --
DR. RINGEN: You received that earlier.
MR. COOPER: -- that we wanted agencies such as the Department of Transportation to come forward, the Corps of
Engineers, the Department of Energy and HUD to discuss this with them, and in that transcript of our last meeting I
was jumping on the DOT for what I jumped on them again for. Our own federal agency, the Department of Transportation,
does not coincide with this group at all whatsoever, and I certainly agree with you. You made a very good
presentation. Thank you.
MR. SOTELO: Thank you.
DR. RINGEN: You're right in referring to that part of the minutes. As you know, part of the legal mandate of this
committee, the original mandate of this committee way back in -- God knows when it was -- sixties or something like
that, fifties --
MR. COOPER: That would be 1970 because --
DR. RINGEN: Oh, no, no, before that. Was to review federal contracting for construction. That's what it was
originally set up to do, and in our next meeting I hope that we will get to that and get all of these people in.
MR. COOPER: Well, you were supposed to have it done this time, buddy. You're talking about on the Construction Safety
Act?
DR. RINGEN: Before you go, just one -- yes, exactly. Just one final comment on -- I was only half facetious when I
asked you about the musculoskeletal data under ergonomics. The reason for that is that we still let fatality data
drive what we're doing in this industry, which is an obsolete way of thinking. Just the example that you gave in
Washington State, the reason that you get cancer as number 4 is that you use death claims that come to workers'
compensation -- OSHA does not -- which means that you get all acute deaths on the job and also some of the chronic
deaths that arise that can be identified as being work related.
If you took asbestos related deaths out of there, then cancer would not be number 4 obviously, but since you happen
to have those, which otherwise are not available, you come up with a slightly different ranking. If you used workers'
comp injury claims, injury and illness claims as a whole, you would have a much more solid basis for what you were
looking at, but if you use that, then falls and everything else would drop way down to the side of it, and one thing
would stand up as this huge mountain next to pebbles.
MS. OSORIO: But I think you have to qualify that, because to get an award in a cancer or chronic disease workers'
comp case is almost impossible, short of having a real obvious carcinogen on the job and stuff. So I think even there
we're just seeing the tip of the iceberg --
DR. RINGEN: Of course.
MS. OSORIO: -- and it's not the whole picture, but I think one of the reasons that your list is number 4 is that, you
know -- what we're doing on a national level can probably never come down to the level of what Washington State and
some other states have, and I guess there may be some comments maybe the committee can make to be a BLS, a Bureau of
Labor statistics, about telling them that they really have -- I know they thought about completely doing away with
it, but maybe giving them some clear instructions from this committee about looking at alternative sources or
supplemental sources as to how they put together the layout for, you know, statistics, especially in construction as
well as other things, but I think that could be something to keep in committee.
DR. RINGEN: I think he has a response back there and then you can go.
MR. COOPER: Yes.
MR. BAGLEY: Just one comment. From my dealing with the health department, I think NIOSH has some information, and
we're not doing a good cross over with BLS and NIOSH on some of the information, and I know in some areas it's
confidentiality and those type of things, but I think with NIOSH it's probably -- you know, that's the tip of the
iceberg.
DR. RINGEN: Steve.
MR. COOPER: This committee has done that before, oh, about -- I don't know -- maybe eight years ago. There's a group
out of this committee -- Joe Adams from the UA was present with that group, and they met with a group somewhere in
Colorado. It's named after a town, Evergreen or something like that. What is that?
MR. HALL: Keystone.
MR. COOPER: Keystone. And that group studied what we're talking about, and they're probably still in existence. Are
they, Tom?
MR. HALL: Yes, I think so, and Steve Newell's people work with them. In fact, Mike -- not Mike. Lesnick facilitated
the record keeping meeting, and he's out of -- he lives in Keystone and works with them, and he was facilitator for
the public meetings they had on record keeping recently in Washington.
MR. COOPER: There's been a lot of work done on that, and probably that's where you should look towards that. The name
of the group was Keystone something or other.
MR. HALL: Keystone Foundation or something.
MR. COOPER: But they're 100 percent working on BLS data, NIOSH data, fed data, state data.
MR. BAGLEY: Right. After that meeting they came up with a census of fatal occupational injuries, but they have not
yet come up with the illness part of it.
MR. COOPER: What they're coming up with too is trying to clear up this whole data mess, and the reason Washington
State is beyond their capability is they have records because they keep track of injury by hours worked, and the
other 49 states don't.
MR. BAGLEY: No, we do too. We keep that same type of information.
MR. COOPER: You don't do hours worked?
MR. BAGLEY: Yes, we do.
MR. COOPER: You do hours worked?
MR. BAGLEY: Yes.
MR. HALL: I think you might have better luck working with Steve Newell than with BLS, because Steve Newell has the
ability to analyze without worrying too much about confidentiality.
DR. RINGEN: And we are working with a number of groups and NIOSH.
MR. HALL: And BLS does, and Newell is doing more innovative things on this, I think.
MS. PORTER: Yes. I mean, this is just one thing that Bruce's presentation this morning kind of invoked in my mind,
and Marie and I have been talking about this, is that clearly there's lots of data here, and there's no question that
ability to analyze it is just incredible, because for every one chart you produce, there are ten other questions that
could be asked, and that's one of the things about what we're trying to do at NIOSH with the research dollars that we
have is try to do more surveillance activities that would enable us to link some of these state data bases and look
across at different industries.
But, Steve, the other thing I was going to tell you is that the office of science and technology policy, part of the
White House, has a building and constructions committee which we sit on with the Department of Commerce, the
Department of Transportation, and Marie is our representative to that committee, and they are very interested in
what's going on between departments on construction health and safety and looking at making sure that the research
side of it is adequately funded be it as NIST, National Institute of Science and Technology, Department of Commerce
or whatever. We've been pretty effective in trying to move them forward. So there's no reason that somebody from this
committee might not be able to participate, either be asked to be invited to that committee to talk about issues of
building into public buildings and work projects level standards.
DR. RINGEN: Okay. Thanks, Mike.
Last but not least we have our two men from Oregon. I think just come up here together. Bob Shiprack is the executive
secretary of the Building Trades, and Bill Pulver who is the AGC representative from Oregon. Thank you for taking the
time to drive up here.
MR. PULVER: My name is William Pulver, and I prefer Bill, and I'm here representing the Associated General
Contractors, Oregon-Columbia Chapter, and I'd like to start my presentation off with discussing just a little bit
about OR OSHA and how they function as far as AGC Oregon sees it.
I have to commend the State of Oregon. They've made some tremendous strides in reducing losses in the State of
Oregon. They've worked with associations very closely. They'd partnered with us, with AGC, AOI and numerous other
associations, in an effort to reduce losses, and we have done so very commendably, and Bob will cover that in more
depth.
As you know, as you very well, everybody in this room, we talk about the construction industry, how do they address
the construction industry. We are a target industry. We are a high hazard, high exposure industry, and so we are
targeted, and because we are targeted, we are a recipient of a lot of inspections, not very many of them complaint
inspections but because of records.
Our association has taken -- nine years ago we took on the task of reducing losses for the membership in the AGC. I
don't want to go into a lot of detail because I don't want to take a lot of your time on how we accomplished that.
I'll touch on it just a little bit later, but we feel very proud of our safety plan. Over the last nine years our
loss ratio has averaged around 38 percent in the construction industry, which I think is very commendable, probably
lower than most places in the nation. We have over 1,000 members in our association, so we're not just small that we
can control everything that happens.
We talk about the fall protection. In my association fall protection becomes very diversified. You were handed a
booklet this morning from OR OSHA that they put out about fall protection. Because of the number of members we have,
we have to consider four types of those fall protections. We got steel erection, we got residential, we got
construction, and then we have roofing. So we have to be responsible to our members.
We have to be very aware of all the rules and regulations, and I can tell you that because of the new regulations,
the ten foot versus the six foot on the fall protection has caused quite a bit of confusion amongst our members. What
is residential like construction, do I need a fall protection plan, what is a competent person, and those type of
things. We're doing very well now because it's been an educational process.
Personally and through the feedback that I've gotten from a majority of our members, the six foot fall rule is not
very well accepted. We've conversed with OR OSHA, and we can't find any real reason to have a six foot rule in the
State of Oregon as it hasn't caused us any problems.
One of the other problems that we're having with the Oregon fall protection plan right now is the anchor systems. The
only method that we have at this particular -- well, I'm sorry. We have two methods in how do we determine if the
anchor system is sufficient, is it going to sustain the load that's placed up on it.
One is test, drop test system. Well, when we talk about getting a contract and getting a job done and then we got to
go through the process it sets forth in the standard as far as drop testing, every time we go on a new roof, every
time we go some place else, we're taking a lot of time.
Our next alternative -- and Bill will enjoy this. Our next alternative is to have it engineered, and we can't find
too many engineers who are willing to put their neck out on a block in a liable suit, so we do have a problem. Is it
surmountable? I don't think so but right now it's not very feasible the way it's set up.
Addressing the employer safety and health programs, our AGC workers' compensation plan -- we call it a workers'
compensation plan for reasons I'll explain shortly. The members of AGC who choose to join our workers' compensation
plan are required by our committee to establish a written safety program with complete elements of the program which
include a written safety policy, employee/employer responsibilities, a disciplinary policy, a safety committee -- I
don't know if I'm going to remember them all or not. A drug and alcohol program is not a requirement. It's a
suggestion required only if your losses show that drug and alcohol is causing your losses to increase.
People like myself are hired by AGC as safety and loss control consultants to monitor, to establish and to assist in
the implementation of these programs. Now, as an association, you must understand I can't go to this employer and
say, thou shall or thy won't be around any longer. However, we do have a certain amount of little hammer power, and
that is that if their losses continue to increase and reach over a rule that we set down -- and we set a guideline of
about 40 percent loss ratio. If their losses continue to rise after we visited and we've worked with them, continue
to rise, we will recommend to the insurance carrier that they no longer be insured by that carrier.
The State of Oregon requires all insurance carriers to provide safety services or make available safety services to
all insureds. AGC has contracted with an insurance carrier in the State of Oregon to provide those services, and
that's where our income comes.
Bill, you mentioned earlier and you kind of shook me up a little bit when you were talking about reduced workers'
compensation rates or costs based upon a safety plan, and it kind of fell into where we are. We do not or the
employer does not receive a reduced rate because they have a plan. They receive a reduced rate because they belong to
this plan because this plan is so large that it provides a good market and we can go out and we can market this and
we can get a good rate from the carrier. If the employer does a good job of establishing and following up with his
safety program, he will very likely earn a retro return as well as a bonus if the record is good enough.
This year the members of our program who had good records, they received 40 percent of their workers' compensation
costs, but it's not based upon whether or not they have a plan. It's based on whether or not that plan is reducing
losses.
MR. W. SMITH: You understand the difference stated that was in Utah --
MR. PULVER: Yes, I did, but you kind of scared me because I didn't know where you were going to go.
MR. W. SMITH: Yes. The issue ends up being if I have a program, I get a 15 or 10 percent reduction in my premium, but
if nobody accredits or acknowledges or enforces that program to the effect that it carries on the workplace, it's a
scam of the industry and it's the way to cut some of your overhead expenses off, and it's a canned program you take
off the shelf and put in place to show to your insurance carrier that you should get the discount, but, you know,
regardless you're going to still get a discount from your modifier anyway after a period of years if you have no
recorded accidents anyway regardless of what plan you have in effect.
MR. PULVER: Well, as we all know, if you don't control your losses, you can't control your workers' compensation
costs either, so that's our whole thrust there is to control your losses.
I might add that the number of contractors that I work with, I don't find any of them that had the I don't care
attitude. If they're properly interested in their employees, they've got to be interested for the simple fact that if
they aren't, they're not going to be in business very long. An injured employee is a reduction in --
MR. W. SMITH: Well, see, that's all good in theory, and we all understand that theory, but if every employer out
there was so interested in their employees, you wouldn't have a citation on trenching, a citation on excavations
anywhere in the country because every trench excavation can be prevented by the use of three means to protect the
employee, so that there wouldn't be a citation given to any employer out there that really had the issue of his
employees at heart.
The end result in our industry of construction, you know as well as I do, is it's quicker and cheaper to just dig the
trench, lay the pipe, cover it up and get out of there than it is to do it the right way by the standard, because the
chances of getting inspected or receiving a citation while that trench is open are very, very limited, because as AFL
points out, it would take once in every 87 years for every work site to be inspected with the number of inspectors we
have, and we all know that, and that's the world where we live in. Theoretically every employer should look out for
his employees, but if that's the case, we wouldn't have a citation on a trenching violation ever.
MR. PULVER: Well, that's not true, Bill. I'll cite you a case that just happened recently. This employer is very,
very strong, very interested in safety, has probably one of the better safety programs in our organization, and if
you violate any of his safety rules, you're going to be disciplined for doing so. He got cited the other day for an
employee working in an unshored trench, and this employee has had about 40 to 80 hours of training a year, and he
knew better, wasn't supposed to be in there, but he was in there, and he got caught. A drive by caught him, but it
wasn't the employer's fault. He'd done everything he could possibly do, and I might add the employee is no longer
employed there, and he was an 18-year person.
MR. W. SMITH: And that's perfect, because from the union side, our argument is he's a liability to you, he's not an
asset, so therefore, cut your liabilities, and if that means get rid of that employee because he's in that trench
because you've taught him the other way -- granted, you're going to get the citation because the employee won't, but
the ultimate fine to that employee is what that company did, dismissal, and that's okay.
MR. PULVER: Yes.
MR. W. SMITH: From the union side, we're fine because eventually that guy will not get in trenches or he won't work
construction if every employer did that. The problem with that is a lot of employers don't do that because that guy
is the one that's going to make them money because he's going to do it unsafe and do it quick. That's the problem.
It's not the good employers we're talking about, because your employer did right. It's the next guy he goes to that's
going to keep him in that trench unsecured because he's making money for that employer.
MR. PULVER: Well, that's true, and we're never going to be able to legislate or train or enforce --
MR. W. SMITH: Together we are.
MR. PULVER: -- where we never have any citations or we never have an injury.
MR. W. SMITH: Together we are. Your employer did right for that employee. OSHA did right to your employer because it
keeps your employer doing what he's doing. Eventually the system will weed that guy out if everybody follows that
rule.
MR. PULVER: Well, I don't want to pursue it any longer. I've taken up too much time, but maybe some time we can sit
down and discuss it at further length.
DR. RINGEN: Over a drink.
MR. PULVER: Yes, there you go. Tall beer. I'm making me thirsty.
MR. W. SMITH: Are you buying?
MR. PULVER: In regards to confined spaces, the State of Oregon has two standards on confined spaces. One is in
division 3, which is construction, and the other is the overall industry confined space which has not caused a great
deal of problems. It was an educational process to begin with. Whereas in the construction industry if you are
working, let's say, in the installation of a sewer line, your confined space program basically consisted of testing
the trenching and the manhole that you dug, the new manhole that you dug to make sure that there was proper oxygen
content, there wasn't any volatiles or fumes, et cetera, or any possibilities there of being.
Once that construction site reached a live line for hook-up, then they had to fall under the guidelines of the
overall industrial confined space regulation. It hasn't caused that much of a problem. It's just an educational
process.
As far as the organization of field activities, emphasis on enforcement and consultation, the State of Oregon in my
opinion has placed less emphasis on enforcement and more on consultation, and by that, I mean, from going back,
consultations are -- their consultation activity and their consultation individual consultative numbers aren't
larger. They're an enforcement, and they haven't slacked off on enforcement, but they have come forward with more
consultation, and their consultation process at this point is overloaded. They've got far more requests than they
have people to handle it.
As far as I'm concerned, the consultation aspect of it -- and I'm going to include enforcement in this as well. I
feel that the enforcement and consultation people within OR OSHA -- I think there need to be more specialization.
They need to know what a construction site is. They need to know that a construction site is not a stable,
long-lasting situation. You can go to a construction site, and an hour later you can go back and the configuration of
that site has changed tremendously, and I think they need to know this, and I think they should have the ability to
look forward to that and kind of visualize what it's going to be like tomorrow rather than what it's like today.
Compliance and consultative training for OSHA I think is very good. They receive a great deal of training before
they're allowed to go out in the field. The training consists of about six weeks of classroom, and it also then
consists of some field training as well. They're required to cover 40 hours a week of training for a year. Again, if
I had anything I would like to see changed about their training, I think it needs to be some specifics again. I think
we need to designate a construction, a wood products, an et cetera, et cetera, type people.
When I worked as a consultant for OR OSHA I covered everything but chemicals. It just so happened that I had the
training to be able to do a decent job. I lean more towards construction and that's where I ended up, but I think it
needs to be a little bit more specialization, and I don't think that it's necessary that a) consultant, b)
construction, period. I think they can maybe have one or two specialties.
As far as the training, as I said, I think it needs to be some on-site training. Maybe they need to work -- as was
mentioned before, I think, there needs to be some joint effort between industry, labor and management in the training
of OR OSHA people out in the field.
Now, AGC and OR OSHA tried that, and it was going very well, but it was so difficult to arrange a time for their
people to be at the job site at the time the job site could accommodate. But what we did do was very good.
In closing, I have one thing to say about state plans versus federal. I believe the state plan needs a little more
flexibility, and I say that -- a lot of our standards are promulgated in areas that don't necessarily or the rule
itself or the standard itself is promulgated based upon what might happen in Muncie, Indiana, or what's going on in
New York City or New Jersey or Mississippi and doesn't necessarily apply to what's happening on the west coast or the
midwest. So I think that once the regulation is set down where the state plan is required to either adopt it or be --
have administrative rules as well as or better than, I think there needs to be a little flexibility there, so they
can apply these rules, work within the rule, not circumvent it but work within it but be able to apply it to the
situation. That is an area that we do have some conflict with.
Questions.
DR. RINGEN: Questions? Judy.
MS. PAUL: I guess I didn't understand what you just said. It sounded like you said that if Oregon has to adhere to or
comply with the regulation that has more to do with some state in the south or east or whatever it shouldn't apply to
Oregon, but then you said when Oregon has to do something with it, it's difficult. If it doesn't affect Oregon, why
is it even an issue? Do you see what I'm saying? I guess I don't get that.
MR. PULVER: Yes. I think I understand what you're saying.
MS. PAUL: What did I say?
MR. PULVER: Now, let me give you an example. Years ago when fed OSHA promulgated logging rules, I had an opportunity
to have input on that when the proposal came out, but it came out anyway. It practically closed logging down in
Oregon, and so what I'm saying is if a rule is promulgated and it comes down -- an example, let's take Detroit where
you have power presses that are -- what am I trying to say -- production line, production line machinery and it just
goes bang, bang, bang the same way, the same thing eight hours a day, 365 days a year, but then you take that same
piece of machinery and put it into a job shop where that job might change by the hour of what you might have to do
with the bending and the forming of that piece of metal, the guards don't apply to this job as it does to this job or
this job or this job. So we should have the flexibility to work within it to maybe come up with our own guarding
system.
MS. PAUL: Thank you.
MR. PULVER: Okay.
MR. COOPER: One of the problems with state plans -- and it maybe will make a few people unhappy here -- there is some
domination in various states by the people that control the legislature. In my own state of Colorado it used to be CF
& I and Coors Brewery. We had a state plan. We don't have it any longer, but that state plan operated on the
whims of those two people and the rest of the state be damned. So Colorado Fuel & Iron in Pueblo and Coors
Brewery up in Golden, they run the whole damn state plan. They could shut it down if they wanted to, so that's one of
the problems with the state plan which could come in, and an outside influence, they control the legislature at that
time. I'm going back some years here.
MR. PULVER: Yes, okay.
MR. COOPER: And they can control anything. They could have run off half of Utah's plan if it was Utah that I'm
talking about, but we had a problem with particular rules that were coming in and out on safety and health because we
didn't control it. We had no control, and I'm talking labor or management. Those two groups had control, and that was
one of the problems within the state, in that particular state, and there's some other states like it.
MS. OSORIO: Just to back you up on that, you know, for a year and a half, almost two years, CAL OSHA was completely
written out because Dick Majen, the then governor thought that well, the feds can do just as good a job, why should
we pay half of CAL OSHA, and up to five or six years later they were having a hard time getting qualified compliance
officers because nobody wanted to go into a system that at the whim of another governor could just be blue lined out.
So I do think it's nice to have like a bottom level that you can't go any lower, you know, and I think it depends on
what political phase your are in your state what happens.
But even though it got recommissioned, it was, like I said, four or five years before we could find anybody who even
wanted to work for them. So if you think your compliance officers were bad, during that time it was an embarrassment
to have to work with them because only the dinosaurs were left.
MR. PULVER: Don't misunderstand me. I don't think our compliance officers are bad.
MS. OSORIO: No, no, but I'm just saying --
MR. PULVER: Marilyn, don't --
MS. OSORIO: -- that something like that could have -- you know, half a decade of horrible things came out of that.
MR. PULVER: I think that's the nature of the beast. I think there's always that possibility that politics -- and it
was mentioned earlier. It's too bad that politics has to be involved in safety, period.
Several years ago there was a move on to dismantle OR OSHA. At that time it was called Accident Prevention Division
in the State of Oregon, and many of us in the trade fought that. The only reason that I was able to determine was
that, hell, if they take OR OSHA out of here or Accident Prevention Division at that time, if they take their 80, 90
people out of here, the federal government is going to come in and put three or four in here, and we're going to get
an inspection ever five years instead of every five weeks maybe, and that was the whole thrust of their attempt to
remove APD out of the state plan.
The trades got together with exception of one or two, and we defeated that, and I very strongly feel, very strongly
feel that it would be a big mistake for federal OSHA to take over the State of Oregon because the way Oregon operates
at this point in time. I think they do an excellent job.
DR. RINGEN: Federal OSHA of course isn't completely immune from political interference, you know.
MS. OSORIO: I'm sorry?
DR. RINGEN: Federal OSHA is not completely immune from political interference either.
MS. OSORIO: No. I was just referencing how dramatic the whims of politics can be at the state level.
MR. HALL: Ana Maria, what percent of those California CSHAs were rehired by the fed?
MS. OSORIO: See, as an IH, which were the better -- with all due respect to safety engineers, but, you know, the ones
that really were specialty people for certain kind of industries, almost all of them -- because, you know, they go
through our training programs, so we got to know a lot of these people. Almost all of them went into the private
sector because as a private consulting IH you just make a lot of money. Once you get that money -- and then secondly,
the instability of having another decommissioning of that plan, to this day I think some of that fear has gone by the
wayside, but it's taken four or five years to get over that hump and get qualified.
MS. SCHUSTER: We hired a lot of them.
MS. OSORIO: Yes, exactly. You're more of an OSHA person than I am, but you can see how devastating that could be.
DR. RINGEN: Boy, those were some lucky Californians.
We're going to take Mr. Shiprack first and get through this and then we'll get back to the comments.
MR. SHIPRACK: Thank you, Knut.
DR. RINGEN: Bob, go ahead.
Thank you, Bill.
MR. SHIPRACK: I'm Bob Shiprack. I'm the secretary of the Oregon Building and Construction Trades Council. I'm an
electrician. I've had the position for ten years now, and I spent 12 years in the Oregon legislature, six as chair of
the house labor committee.
We had a real workers' compensation mess in our state, not just safety and health but throughout the whole system,
and in 1990 the governor called a group of labor management people together, and he says, look, I'm tired of getting
beat up on this issue; I want you guys to go in the basement of my house once a week, and you guys are going to come
up with a plan. We did this for three months, and we completely rewrote our Oregon statutes on workers' compensation.
The key part of that rewrite was safety and health, and other people say it was managed health care and all that.
Despite all that, it was the safety and health issues.
I preface my comments by saying it was a political deal, and that's what all this stuff is about we're just talking
about. It's all politics, and it's sickening that labor and management associations allow individual politicians to
destroy programs that are good for our society and the workers, and there needs to be a stop put to it. We put a stop
to it in Oregon.
We had a senator who wanted to repeal our Oregon OSHA, and he was told by our largest trade association's management,
if you want to stay in the senate next time, back off. We didn't hear anymore about that.
Let me tell you why. What we did, we increased safety and health enforcement, training and consultative staff,
tremendous increase in the budget for Oregon OSHA. We used penalties to the fullest extent against employers who
violate state safety and health regulations. We required insurer loss prevention consultative services.
One of the things we found out in the labor committee was insurance companies were charging premiums obviously for
workers' comp to employers. I got to looking into it, and a percentage of those premiums were supposed to go to loss
control. I said, where's the loss control, and the answer is Bob, they don't do that; they just put it into their
rates. I said, well, from now they're going to get fined if they don't start doing what they're charging the
employers to do. So now as Bill mentioned, they have to provide that.
Provide employer and employee training opportunities through a training grant program that I'll speak very shortly
about. We require joint labor management safety committees mandated, and we target safety and health inspections more
effectively.
As a result of what the legislature did in a one-day special session when we did all this finally, we hired 43
percent increase in staff. We went from 170 FTE to 243 in both consultation and in enforcement.
According to John Burton's workers' compensation monitor, at OR OSHA's current rate of inspections, it would take
about 15 years to inspect all Oregon job sites. This is the lowest rate in the nation compared to a high of 174 years
for Nebraska and Florida, two states, I might add, that have big workers' comp problems, and 87 years, as was
mentioned, for federal OSHA to inspect all of its job sites.
Estimates of the total direct cost savings to Oregon employers due to the reduced number of claims approaches $1.3
billion from 1988 through 1995. That's just direct premium costs, and as the contractor representative said back
there, one of the things in labor we talk about, there's need and there's greed, and what we found was there was
obviously a need for a safer workplace, but we finally convinced employers that it made good business sense.
Before 1990, believe it or not, in public hearings in the state capital I would have employers in front of my
committee who did not know what their experience modification factor was or what it meant or how it got that way,
didn't understand that. So we went through the trade associations like AGC, Associate Oregon Industries. We had to
educate employers to the fact that safety makes good business sense.
I almost hate to give you these statistics because all your numbers I'm hearing from the back because of who collects
them, if they're any good or not, but these are Oregon statistics. Oregon statistics are very good. We have a lot of
employees in Oregon government and Workers' Compensation Department. One of the benefits of that is we have excellent
data collection. I'm not going to read all this. I had it printed. This is kind of the OSHA stuff here, disabling
claims, big drop, 30 percent increase. This is a time when, I might add, in Oregon the work force is booming,
particularly in construction, well over 100 percent employment and over 30 percent growth in Oregon employment.
Fatalities, for whatever it's worth, per 100,000, less than half of what it was just a few years ago and dropping.
These are our lost workday -- the incident rates, decreased 25 percent, record lows.
Here's a construction specific incident rate on page 2, dropped from 15.6 to 11.8. I'm told the new statistics in ‘95
may be a little increase. Again, that's with record construction employment in Oregon. That's going to be an
abnormality.
Those are the inspections that we have done. The next thing, the next column, about 5,500 a year shows the covered
workers, and the compliance rates actually stayed pretty stable.
We fine a lot. There's citations, violations and the penalty dollars, and they are increasing. One of the things that
employers will say -- obviously they don't want to get fined by OSHA. However, because of the revolution that has
occurred in the Oregon workplace, particularly among management, they are actually encouraging fines against certain
contractors in our case who continually flout the law, and we will hit them with severe penalties, and we do willfuls
and the rest of that. It doesn't do them any good to go to the AGC or the other management associations, because if
they're wrong, they're wrong, and the rest of them tell them that.
The consultations we've talked about increased, we're swamped. We'll probably put some more FTE in the next budget to
handle that. There's the safety and health training programs. We have a statewide network called EDNET that we can
link up to all the community colleges, ever high school in the state, I believe, to provide this.
We did another thing that's kind of interesting. It's not a big deal, but it's kind of fun. We took part of our
penalty money, and we put it into grants for safety and health training. My Building Trades Council and affiliates
have got a few of these, particularly the painters, asbestos workers, those. I just did one for some apprenticeship
safety and training. It's kind of a fun little program. I'd encourage other states to look at it, and it does some
good.
The consultative programs, the next there, was brought up earlier about our safety committees. They are mandatory,
and we will fine you if you don't keep your minutes and you don't follow what the committee suggested. You'll see a
big bump in ‘95 in those penalties. I think our department is kind of tired of getting that we didn't know about
it, and we're seeing more of these penalties for the safety committees. They mean business. That's what they're
established for, and they're going to enforce it.
The good news for the employers, what has it meant. I told you about 1.3 in direct costs. Those are the premium rate
changes in Oregon, the only state in the country that has those type of cuts in our workers' comp rates. We went from
the sixth highest state in the country to the 32nd. I think we dropped two more in ‘95 to about 34. Actually we
don't want to go any farther below that.
The only other -- you don't have this. I would mention that for construction, just for an aside -- I don't know how
many of you are aware of this. We've signed up with what's known as the premium adjustment program through NCCI. It
was an attempt to get something what we had always wanted is the cents per hour, the Washington model. NCCI has
changed that program. It's no longer nearly the credit that it used to be, but for high wage employers, from ‘91
through ‘93, they experienced over an 11 percent reduction in their rates based on what they paid their help. We're
going to talk to NCCI about why they changed it. It was based on experience modification factor, and they've thrown
that out, and it's not nearly as good.
The last thing I want to say from a worker's perspective statistically, unlike so many states that I have visited and
spoke in and read about, because I follow this -- it's been probably the one issue that's dominated my political
career at least. In order to save those dollars for our employers, we didn't cut benefits. We went into other
methods. There's a lot of money wasted in workers' compensation, and any state can save money by cutting the workers'
benefits, but you've never solved the root problem of the employer's cost by just cutting benefits.
Our benefits, in fact, have been statutorily raised since 1990. We were at very low levels particularly in the
scheduled and unscheduled permanent partial disability. The statistics I have here do not reflect yet another
increase that the legislature put in, in the last legislative session. Cash benefits have increased, and awards have
increased as well. Trade off, we're getting better medical treatment, we're getting back to work earlier through
programs that Bill works on, early return to work through the various carriers. Employers, particularly in
construction, can make a profit now and can be competitive with other contractors.
I'm going to stop there. I just wanted to throw out the statistics. I got a lot of thoughts about this issue. I could
go on for a lot, but I thought I'd just see if there was any questions you might have of me, and then I do have a
couple thoughts at the end to throw out about what I think OSHA ought to look like.
DR. RINGEN: I have one specific question for you. It has to do with State Accident Insurance Fund --
MR. SHIPRACK: Yes.
DR. RINGEN: -- which still continues to insure about a third of all employers.
MR. SHIPRACK: At least that, yes.
DR. RINGEN: Yes. People who can't get commercial insurance essentially, can't be self-insured. They are the people
who are the biggest safety and health risks without a doubt, and this is true in every state, I'm sure.
MR. SHIPRACK: Sure.
DR. RINGEN: And if you look at the statistics that Bruce -- I don't think you were here yet. Bob, that Bruce showed
earlier today, it's the large number of injuries and so on that occur among the small employers. What does SAIF in
Oregon do to -- and obviously OSHA is not effective in addressing these very small employers.
MR. SHIPRACK: Well, the first thing --
DR. RINGEN: It has to go through the insurance mechanism somehow, but in order to do that, you've got to get these
state funds to be more loss and safety oriented.
MR. SHIPRACK: Well, the first thing they do, they go into our assigned risk pool, so they're paying about 140 percent
of the standard rate. That's not always good because every new employer automatically goes in there.
DR. RINGEN: Sure.
MR. SHIPRACK: So a good journeyman, for instance, who is going to start a construction company and run a good
operation would still be nicked by that delay of three years of experience.
DR. RINGEN: Right.
MR. SHIPRACK: But because the insurers are all required to have the safety programs, they're probably given special
attention. Now, Bill might -- for a new construction contractor may be -- and you're with SAIF now, aren't you?
MR. PULVER: Yes.
MR. SHIPRACK: Maybe Bill can hit that on -- if there's something different they do, I don't know.
MR. PULVER: Well, for our program -- when I say we're with SAIF, we contracted with SAIF, and they've contracted with
us. We make available our membership to SAIF, and we contracted a rate, and SAIF has contracted with us to do the
safety services rather than the -- they do the safety services they've contracted with us to do then, and so anybody
that comes into the program --
DR. RINGEN: Into the state program?
MR. PULVER: Pardon?
DR. RINGEN: Into the state insurance fund?
MR. SHIPRACK: With SAIF.
MR. PULVER: Well, with us. If they're with SAIF and they're in our program or they're an AGC member --
DR. RINGEN: Okay.
MR. PULVER: -- and they're in our program, they're required to all these safety rules and things, and when I say
they're required to do a formalized safety program or plan, that's not necessarily true because we're not able to
take a three-man, a two-man or a four-man operation and come up with a formalized safety program. So we work within
those guidelines to provide one. They do have a safety plan, but it's not a formalized, you know, three or four
binder full of program type thing. It's one that's workable for that particular situation. So those small companies
that are in our organization that are in our program are getting the safety services that a company with 150 people
in our program. They have the same thing.
DR. RINGEN: Marilyn, how does the Oregon OSHA interact with SAIF?
MS. SCHUSTER: Well, first of all, go back. What Bill is saying is that a lot of those small construction employers
are not getting individual SAIF coverage because most of them are -- I think many of them are part of the
associations who contract for the SAIF coverage. I know the Home Builders has their group and AGC. AOL has a small
employer group with SAIF also, so it's not a straight line.
We interact with SAIF quite a bit actually. They are involved -- and actually Liberty Northwest and some of the other
major carriers also are usually a part of any of our groups that are working on -- advisory groups that are working
on standards or working on publications. They always work with us. As a matter of fact, Liberty Northwest came along
after we did this fall protection thing, and they said, well, we really want to do something on lead; we want you to
work with us on -- they often come to us and say, you know, we're feeling left out if you don't work with us too.
DR. RINGEN: Steve. I wanted to remind you that it's a generation ago since you lived in Colorado, by the way.
MR. COOPER: How many of your members do you have in your insurance plan?
MR. PULVER: Approximately around 850 right now out of the 1,000 that we have.
MR. COOPER: You've got 850 in your own plan?
MR. PULVER: Yes, and that's just kind of a guesstimate right at this point.
MR. COOPER: And is there any limit to the size of the contractor by --
MR. PULVER: No.
MR. COOPER: So if I had ten employees, I can get in your plan?
MR. PULVER: Yes. If you're an AGC member, you want to get into our plan, there's no limit. That's true, small or
large. We're basically -- most of our employers are small employers, anywhere from 4 on up to 200, 250, because the
larger ones with the large premiums basically will go with a program that's better than ours because of their premium
size, and I'm talking in the neighborhood of, you know, $300,000, $400,000, $500,000 premium on up. So we're
primarily established as to assist those companies who are not large enough to provide their own safety services, and
then we provide them.
MR. COOPER: So do you have a front company?
MR. PULVER: A who?
MR. COOPER: A front company.
MR. PULVER: No.
MR. COOPER: You don't?
MR. PULVER: No.
DR. RINGEN: Okay. Bob, you had some thoughts about what OSHA should like?
MR. SHIPRACK: Well, I've had some ideas about it, but Steve brings me back to reality with what he said. You know,
talk about Colorado, I was talking to a colleague of mine in Wyoming. In Wyoming the mining industry artificially
keeps their work comp rates below their actual losses because of their political clout, and their fund is bankrupt,
bankrupt because of one industry, so he's right.
My concern about federal OSHA is not so much the rules and that type of stuff. I am deeply concerned about the
political stuff. We're a long way from Washington, D.C., but just what I read in the newspapers scares the hell out
of me. I've often thought maybe federal OSHA should get out of the on-the-ground type stuff and be more of the
federal oversight of the plans giving workers at least a shot in some of the 50 states a good enforcement and
compliance, but I'm not sure that's workable.
One of the things I'm going to ask you about, because it gives me a chance to complain, you guys need to help us out
on the ground with this process safety management stuff. I'm on a committee for Oregon and Washington. It's owners,
contractors and unions, and I'm told there's 25 different groups like us out there. We're called CSTOP. I don't know
what that stands for.
MR. PULVER: Construction Safety Training Program.
MR. SHIPRACK: Whatever. Bill is aware of it too. They're involved in it now, but you got 25 different programs out
there. You've got owners that are convinced that they've got this huge liability if they don't do process safety
management. There's no consistency in the programs. We are seeing evidence of fraud now in our program through the
training that is going on at the community colleges and some of the open shop contractors, and we'd like to get one
standard -- speaking from the Building Trades, give us one standard, give us a model process safety management
program. We will teach our people that, get them certified and get over this hurdle, but it is really becoming a
joke, and it's becoming very confusing, and people are making money off of this stuff, big money, and I don't think
it's serving the owners, the contractors or the workers any longer, and so that's my two bits worth.
MS. SCHUSTER: The CSTOP, though, was a local effort by the mills to get training so consistency of training, but
you're right. What happened was that it became kind of a monopoly. We funded that initially.
MR. SHIPRACK: I know. I did too. Big mistake.
MR. PULVER: So did we.
MR. RHOTEN: If I could, Bob. I'm Bill Rhoten.
MR. SHIPRACK: I remember you, Bill.
MR. RHOTEN: Yes, but it's been sometime back. On that standard, you know, there is just the one standard. The problem
is, I think, that are you able -- is the owners of the facilities themselves have to determine which program they
accept.
MR. SHIPRACK: Right.
MR. RHOTEN: So you got cases -- I can tell you in California there's two different programs, one in southern
California, one in the north. Quite frankly the one down south is a lot more sophisticated than the one up north, but
the refineries up north have accepted that. We can get you model plans from Philadelphia, which I think are the best
around the country. They put them together with the help of OSHA. They're there. The curriculum is there you can
have, but the job is going to be to get the owners to accept that curriculum, although I think in the refineries they
probably would if somebody could get them in a room to talk to them, but some cases you got one refinery having
somebody sell them a different plan --
MR. SHIPRACK: That's right.
MR. RHOTEN: -- and some educator or somebody else --
MR. SHIPRACK: Well, just there seems to be a lot of confusion as to what they need.
MR. RHOTEN: Yes.
MR. SHIPRACK: What do the owners need to satisfy OSHA requirements? And I can't get an answer for that.
MR. RHOTEN: Well, it doesn't specify any certain number of hours of training.
MR. SHIPRACK: Well, it would sure help us if we had some direction.
MR. PULVER: The CSTOP program was basically set up by -- like Marilyn said, it was set up by the pulp and paper, the
refineries and the -- there was one other, Marilyn. Was that foundries?
MS. SCHUSTER: It was pulp and paper. It was pulp and paper. It was the Northwest Pulp and Paper Association.
MR. PULVER: Well, yes, but the refineries were in there too, and they wrote the criteria, and the CSTOP people then
went out and gathered the material to teach the criteria that the pulp and paper people said, you must meet this
criteria before your worker can come into our establishment and work.
MR. RHOTEN: Right. Quite frankly I think what's going to happen in some areas in northern California when OSHA gets
around to going in and doing an inspection, they're going to find out that some of those programs are lacking, and
they're going to cite the owners, but until that happens --
MR. PULVER: I don't know.
MR. RHOTEN: I think that's going to happen.
MR. PULVER: We have a program -- it's not similar to that. We think it's far superior to it, and we've had numerous
amount of the people in the pulp and paper industry accept it, and it's a far deeper training program. I don't know
if you're -- VICOM out of Canada. I don't know if any of you are familiar with it or not, and it's a program which
you don't get certified unless you pass it. If you don't pass it, you stay there until you do, but the Northwest
Paper and Pulp people were the ones that wrote the criteria. That's what they wanted. They wanted those people
trained under those certain circumstances before they could come be allowed in their plant.
MR. SHIPRACK: It's changing every six months.
MR. RHOTEN: Well, under the standard they get to call those shots. They get to decide what's going to be in that
curriculum because they're ones that have to run the process of their plants.
MR. PULVER: That's true.
MR. RHOTEN: But I don't know how you would --
MR. MILLER: The performance standard authorizes that.
MR. PULVER: Well, I don't know. I started going to these meetings.
DR. RINGEN: The Hanford representative back here.
MR. MILLER: Yes. I'm just representing myself. I need to ask a question because I'm not too sure what's being
discussed here. Are we talking about 1910.119?
MR. PULVER: Yes.
MR. RHOTEN: Process safety management standard.
DR. RINGEN: Yes.
MR. MILLER: So we're talking about the -- are we talking about the HAZOFF, the PNID inspections and all the stuff
that goes on with that, or are we talking about worker training?
MR. O. SMITH: Worker training.
DR. RINGEN: Worker training.
MR. MILLER: Okay. And are we following the model program that was put out by OSHA as a result of the Phillips
refinery exposure?
MR. RHOTEN: There was a standard that was put out. I don't know if there was any the curriculum that OSHA put out
except for cooperation with Philadelphia. OSHA cooperated with --
MR. W. SMITH: There's guidelines.
DR. RINGEN: Okay. That's what we're talking about.
MR. MILLER: Okay. I just needed to know what we were talking about because for a minute there I thought we were
talking about the 10,000 pound criteria and the PNID and the HAZOFF inspection and all the other stuff.
MR. SHIPRACK: Sorry I brought it up, Knut. If you know what they're talking about, let me know, okay?
MR. W. SMITH: Yes, but, Bob, you're right. There's a million different styles --
MR. SHIPRACK: There's 25 that we've identified nationally.
MR. W. SMITH: Yes. There's a million different styles of training for that 119, and it really -- like Bill said, it
really depends on what the owner wants to buy to train his employees to CYA his facility.
MR. RHOTEN: Jim Lapping was there, and there was meetings with the chemical manufacturing association, and the idea
was to try to get them to meet with us and agree that this would be at least a generic plan that they could sanction
and tell their members. They weren't too interested in doing it, I don't think, because they had no persuasive powers
over those companies. They just do what they want, so that's still getting put together, but it's again got to be
sold to the owners, and that's going to be a tough one. Appreciate your problems.
DR. RINGEN: Any other questions, comments?
(No response.)
Okay. Thank you very much, Bill and Bob. Appreciate it.
MR. PULVER: Thank you, Knut.
MR. SHIPRACK: Thank you.
DR. RINGEN: Thank you.
MS. SCHUSTER: I have one other -- since everybody was so interested in numbers, I happen to have this other one that
go along with a lot of what Bob gave of our numbers too that has the injury and illness rates that goes back to ‘89
and ‘90, and then the interventions that we have done, the inspections and consultations and then what the rates
are more recently, and it's broken down by individual SICs in construction.
DR. RINGEN: Okay, thank you. It's 3:00 exactly. Should we take about a two-minute break while we set up something and
get some coffee?
(Short recess.)
DR. RINGEN: Back on the record.
What we're going to do is end today's program at this point. We have a short program in the morning with
presentations about the safety and health program standard and about the confined spaces. Before we take those up in
the morning, we will take the presentation from NIOSH, from Marie Haring-Sweeney, which we were going to do today,
but in the interest of time, we might as well wait with that until tomorrow and have the facility tour now so that
you can get started with your work group at 4:00, and we'll be all in synch, and we'll still have plenty of time
tomorrow.
So what I was going to do is introduce you to Ross Hill here who is from the facility. He's going to talk a little
bit about it and what we're going to do.
Before he does, let me remind you that dinner tonight is at 7:30 for those who are interested at Shenanigan's, which
is the restaurant right next to the hotel.
Dress tomorrow, very informal. Okay?
Ross?
MR. HILL: Thank you. The Spokane area is an area that was really formed or the town was the result of mining in the
area. It started off as a few fur traders in the Spokane House which is about 20 miles down the stream from where
you're staying now, ended up being the first building down, which was owned by the Hudson Bay Company. Soon after
that a fellow by the name of Joel Pritchard discovered gold up in the Silver Valley up here about 20 miles north of
Wallace, and as a consequence, the Spokane area became a jumping off spot for most of the prospectors, and they
purchased their horses and their pack animals here and went up into the areas around Spokane, which included the
areas north of Spokane, up to southern British Columbia, and they have the largest silver mine in the world in Trail,
British Columbia, just north of here. As you go off into the east of here, you run into the Silver Valley, which is
primarily the silver area for the United States and the largest silver mine in the world up there.
That was discovered about 1882, and throughout the years a number of the buildings in Spokane were named after
prominent folks in the mining industry, the Paulsen Building and the Hutton Building and some of the other ones
around town as well as Patsy Clark's Restaurant. For those of you who were down there, it was named after Patsy Clark
who was a big owner of the Heckle Mine Company here.
From there the mining industry thrived, and in 1951 we started the research center here primarily in response to
accidents in the mines in northeastern Washington, the lead, silver and zinc mines in northeastern Washington and
northern Idaho and the copper, gold operations in western Montana and some of the phosphate mines in southern Idaho.
Since then we've developed expertise in the area of ground fall control, equipment safety, and we're just beginning
to work in the areas of health hazards in the gold mines in Nevada, but primarily our areas of expertise have been in
ground control and equipment safety.
With that, I'd like to introduce you to my two tour guides if I can find them. Ken Hay will be leading one of the
tours, and what we'd like to do is divide up into about eight folks, and we'll quickly run you through the center and
give you an overview of the type of work that we do. Bob Hoekzema, who is apparently getting the stations all put
together, will take another group, and we'll also run through basically the same location so everybody will get the
same introduction to the center.
We're very proud of our center. We not only have, I believe, made a significant difference in the safety in the metal
mines up here -- of course the biggest disaster we had was the Sunshine fire where we killed 92 miners. Since then
there has been no major disasters. The biggest problem up there in the mines around the area still remains the rock
bursts. The mines are very deep, they're very hot, and the rock is under tremendous pressure, and the rock will
explode if you're not very careful about how it's mined.
So with that, Bob Hoekzema has showed up. What I'd like to do is take eight to go with Ken. He'll lead the first tour
out, and so could I have the first eight --
DR. RINGEN: Before you go, let me suggest the following. Since we have plenty of time tomorrow, I think we were
scheduled to start at 8:30. We can start at 9:00, I think. That would be fine, give time to pack up.
(Whereupon, at 3:29 p.m., the hearing was adjourned.)
CERTIFICATE
NAME OF PROCEEDINGS: Advisory Committee on Construction Safety and Health Administration
DATE OF PROCEEDINGS: August 27, 1996
PLACE OF PROCEEDINGS: Spokane, Washington were had as therein appears, and that this is the original transcript
thereof for the files of the Department of Labor.
This is to certify that the attached proceedings before the UNITED STATES DEPARTMENT OF LABOR, in the matter of:
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