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Printing Instructions |
ACCSH Transcripts: October 8, 1998
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OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
ADVISORY COMMITTEE ON
CONSTRUCTION SAFETY AND HEALTH
U.S. DEPARTMENT OF LABOR
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Rooms N-5437 - B, C & D
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 21210
Thursday,
October 8, 1998
Gilmour
99 pp.
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The meeting was convened, pursuant to notice, at 9:00 a.m., Mr. Stewart Burkhammer, Acting
Chair, presiding.
APPEARANCES:
EMPLOYER REPRESENTATIVE
STEWART BURKHAMMER
Vice President & Manager of Safety
and Health Services
Bechtel Corporation
9801 Washingtonian Boulevard
Gaithersburg, Maryland 20878
(W) 301-417-3909
(FAX) 301-208-0636
STEPHEN CLOUTIER
Vice President
Safety/Loss Prevention Manager
J.A. Jones Construction
J.A. Jones Drive
Charlotte, North Carolina 28287
(W) 704-553-3574
(FAX) 704-553-3195
FELIPE DEVORA
Safety Director
Fretz Construction Company
P.O. Box 266784
Houston, Texas 77207-6784
(W) 713-641-6777
(FAX) 713-641-4676
ROBERT MASTERSON
Manager, Safety and Loss Control
The Ryland Group
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
(W) 410-715-7240
(FAX) 410-715-7909
OWEN SMITH
President
Anzalone & Associates
12700 Foothill Boulevard
Sylmar, California 91342
(W) 213-877-8291
(FAX) 818-837-1040
EMPLOYEE REPRESENTATIVE
STEPHEN D. COOPER
Executive Director
International Association of Bridge,
Structural & Ornamental Iron Workers
Suite 400
1750 New York Avenue, NW
Washington, DC 20006
(W) 202-383-4829
(FAX) 202-347-1496
LARRY A. EDGINTON
Director of Safety and Health
International Union of Operating Engineers
1125 17th Street, NW
Washington, DC 20036
(W) 202-429-9100
(FAX) 202-778-2691
WILLIAM C. RHOTEN
Director of Safety & Health Department
United Association of Journeymen & Apprentices
of the Plumbing & Pipe Fitting Industry of
the United States and Canada
901 Massachusetts Avenue, NW
Washington, DC 20001
(W) 202-628-5823
(FAX) 202-628-5024
STATE REPRESENTATIVE
HARRY PAYNE, JR.
Commissioner
North Carolina Department of Labor
4 West Edenton Street
Raleigh, North Carolina 27603
(W) 919-733-0359
(FAX) 919-715-5629
DANNY EVANS
Chief Administrative Officer
OSH Enforcement Division of
Industrial Relations
Nevada Department of Business and Industry
400 West King Street, Suite 200
Carson City, Nevada 89703
(W) 702-687-3250
(FAX) 702-687-6150
PUBLIC REPRESENTATIVE
JANE F. WILLIAMS
Safety & Health Consultant
4901 E. Kathleen Road
Scottsdale, Arizona 85254
(W) 602-569-6330
(H) 602-867-9266
(FAX) 602-867-4338
MICHAEL BUCHET
Construction Division Manager
National Safety Council
1121 Spring Lake Drive
Itasca, Illinois 60143-3201
(W) 630-775-2531
(FAX) 630-775-2185
FEDERAL REPRESENTATIVE
MARIE HARING SWEENEY, Ph.D.
Chief, Document Development Branch
Education and Information Division
National Institute for Occupational
Safety and Health
4676 Columbia Parkway
Mailstop C-32
Cincinnati, Ohio 45226
(W) 513-533-8339
(FAX) 513-533-8230
COMMITTEE CONTACTS
BRUCE SWANSON
(W) 202-219-8644
(FAX) 202-219-6599
(Internet) BruceSwanson@osha.gov
SARAH SHORTALL
Office of the Solicitor
(W) 202-219-7711 Ext. 154
(FAX) 202-219-7147
(Internet) shortall-sarah@dol.gov
OTHER ATTENDEES
CHRIS TRAHAN
CPWR
111 Massachusetts Avenue, NW
Fifth Floor
Washington, DC 20001
(W) 202-962-8490
(Internet) ChrisTrahan@compusa.com
MIKE HAYSLIP
Lithko Contracting, Inc.
5353 Hamilton-Middleton Road
Hamilton, Ohio 45011
(W) 513-863-5100
JANE HOWARD
Bechtel
1015 15th Street, NW, #700
Washington, DC 20005
(W) 202-828-7374
(Internet) jahoward@Bechtel.com
DAVID DELORENZO
NAHB
1201 15th Street, NW
Washington, DC 20005
(W) 202-822-0507
(Internet) ddelorenzo@nahb.com
TRACY SORINE
OSHA/CSCA
N3621
200 Constitution Avenue, NW
Washington, DC
(W) 202-219-7207 ext. 127
(Internet) Tracysorine@osha-no.osha.60
CARL SALL
OSHA/CSCA
National Office (N-3427)
(W) 202-219-8429 x 137
(Internet) ih_safety@hotmail.com
JOHN HERZOG
ACCA
1712 New Hampshire Avenue, NW
Washington, DC 20008
(W) 202-518-3212
(Internet) Jherzog@acca.org
DUGIE STANDEFORD
Inside OSHA
1225 Jefferson Davis Highway
Suite 1400
Arlington, VA 22202
(W) 703-416-8574
DONAL FILE
L.F. Driscoll Company
(Internet) dfile@philly.infi.net
KEITH MATERNE
NAHB
(W) 202-822-0309
(Internet) Kmaterne@nahb.com
PETE CHANEY
MCAA
1389 Piccard Drive
Rockville, MD 20850
(W) 301-869-5800
RICHARD K. PFAU
Donohue Construction Corporation
(W) 202-625-4186
(Internet) richardp@donohue.com
RALPH D. RILEY
Associated Builders & Contractors
1300 N. 17th Street
Rosslyn, Virginia 22209
(W) 703-812-2024
(Internet) rriley@abc.org
CHARLIE BIRD
Centex Construction Company
10700 Eaton Place
Suite 300
Fairfax, Virginia 22030
(W) 703-218-1363
JULIE WILKIE
National Roofing Contractors Association
824 Fourth Street, NE
Washington, DC 20002
(W) 202-546-7584
(Internet) jwilkie@roofonline.org
CARL HEINLEIN
AGC of America
1957 E Street, NW
Washington, DC 20006
(W) 202-383-2732
(FAX) 202-347-4004
(Internet) heinleic@agc.org
MARC FREEDMAN
Painting and Decorating Contractors of America
3913 Old Lee Highway
Fairfax, Virginia 22030
(W) 703-359-0826
(FAX) 703-359-2576
(Internet) mfreedman@pdca.org
DAVID POTTS
NECA
3 Bethesda Metro Center, #100
Bethesda, Maryland 20814
OTHER ATTENDEES:
ASSISTANT SECRETARY CHARLES JEFFRESS
JIMMY ROBERTS
EDITH NASH
BOB HAMMOCK
ADAM FINKEL
TOM GALASSI
ELLEN ROZNOWSKI
RICHARD FAIRFAX
THERESA LUIE
NOAH CONNELL
ELISE HANDELMAN
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PAGE |
Directorate of Construction - Report |
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Bruce Swanson
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10
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Technical Data Center - Tour and
Demonstration
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Shirley Marshall
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58
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DOC - Standards Update
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DOC Staff |
60 |
Subpart R - Steel
Erection |
62 |
Subpart M - Fall Protection |
66 |
Subpart L - Scaffolding |
69 |
Public Comment |
93 |
Adjourn |
98 |
CHAIRMAN BURKHAMMER: Good morning and welcome to the second day of ACCSH meetings.
First on the agenda this morning is the esteemed Bruce Swanson.
DIRECTORATE OF CONSTRUCTION - REPORT
By Bruce Swanson
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MR. SWANSON: Thank you and good morning.
I was going to include in my remarks this morning what has become the difficult numbers
show that DOC does, or I do on behalf of DOC covering the construction activities of OSHA
and what's been happening in the construction industry from our viewpoint.
But I was so intimidated by Marie's data report yesterday, that I decided I'm going to
wait and read that report further before we put together a numbers show again.
But let me point out that the recently received 1997 BLS figures are really not good
news for our industry. I have been giving speeches for the past year talking about the
fact that the fatality rates in the United States in the construction industry -- from
1992 to 1996, fatalities, by BLS numbers, increased from 903 to 1,039. Our construction
industry had grown by a million players in that same time period.
But what that meant was, fatalities were a static 13.9 per 100,000 workers. No
improvements in our industry in our ability to curtail fatalities over the course of those
four years. There were some ups and downs in the interim, but we started at 13.9 and we
ended at 13.9.
Within the past few days here, last couple of weeks, actually, we have received the BLS
data and I no longer have to talk about the 13.9 staying static over a 4-year period
because we have now gone to 14.2 as a fatality rate per 100,000 full-time employees.
None of us can see this as good news. We are all swinging at every pitch, but there's
something that we're not getting done. BLS's raw number for that, incidentally, for 1997,
is 1,107.
I went to a meeting after this last evening. After we concluded here I went down to yet
another meeting, talking about the $317 billion that the U.S. Congress has authorized over
the coming half decade for capital investment in highway and transportation.
Most of that money is going to go to the states, but it will be utilized, most of it,
the great bulk of it, in our industry for bridge work, highway repair.
Those that are closer to it than I and who were doing the talking last night were
saying that the American public is going to be enjoying a work zone every 40 or 50 miles
across the United States within a couple of years.
Because of the work zones and because what we as a culture have imposed upon the
construction industry, we don't want to be inconvenienced during our rush hours, so let's
do as much of that construction as we can after the rush hour ends in the evening and
before it starts the next morning. So, let's get out there and work in the dark.
Then let us put $317 billion on it, on industry, a portion of our construction
industry, I think, is going to grow significantly and we all understand how many skilled
workers there are in the construction industry today, and it's a number that you all know
is not going up, rather going down.
So we are going to be out there recruiting people from wherever we can find them and
putting them on these construction jobs. There are going to be new workers, there are
going to be people that are unused to the construction industry.
It's quite possible, the way things have been going in this country in the last decade
plus, that there might be some foreign languages spoken on those work gangs working out
there at night. We have to figure out a way to train those people and keep as many of them
alive as possible.
A gentleman from one of the highway transportation associations that was speaking was
saying that their epidemiologists figure that, over the next five years, we are looking at
somewhere -- and let me use the whole span, he said. We're looking at somewhere loosely
between 3,700 and 5,000 work zone fatalities in the United States in five years. Those are
not all workers, of course. Eighty percent of those fatalities are going to be the
traveling public.
But that just sends cold shivers through me to think of those numbers and to think that
the $317 billion of tax funds, which I'm not saying should be spent, we all want them
spent, we all want our highways improved, but you throw in $317 billion, you get this much
work done in five years, and, oh, yeah, there's going to be this other little fallout of
about 5,000 dead Americans.
You plug that into our already sliding figures on fatalities in the construction
industry and it's hard to be real cheery about it. You heard at our last meeting, and some
of you that make other meetings with OSHA have probably heard more often than you want
about our strategic plan and what we plan on doing in the 15 percent reduction over the
same five-year period in fatalities, that we hope to see and bring about.
This heavy highway and BLS information all coming in in about a two-week period here
make me feel somewhat pessimistic about the 15 percent reduction. But OSHA is on a course,
and has been on a course for a while, that I think is clear to all members of this group,
but I figured I would take a few minutes this morning to just walk back over where I see
us going in the next couple of years.
You've heard Charles Jeffress say that we are not backing off of enforcement. We will
not back off of enforcement. There will still be the enforcement effort, the significant
cases, and the cases that I have reported to you, like the one a while ago in Houston that
I told you about at the last meeting, where we gave a several million dollar penalty on a
construction site. That will continue to occur.
We are not getting any more resources. We might be -- in fact, if the House bill were
to go through, OSHA will be reducing its numbers by 140. Those of our partners in the
state plan states have been given the figure as to the adjustments that they are going to
have to eat, and what that will mean on manpower, I don't know.
Therefore, OSHA is going to have to, both us and the states, but I can speak only for
us, find another way of doing business. We have talked about partnerships. Joe Deere was
talking about partnerships, Charles Jeffress is still talking about partnerships.
Charles wants to emphasize this because he feels that, as he travels across America,
outside the beltway people don't really see any evidence of partnerships. So, let's get us
all in one place at one time on the 13th of November and talk about what's going on. Let's
bring people in that are partnering with us. Let's give them an opportunity to, we hope,
brag about it.
But if they don't brag about it, if they wish to point out some glitches that they've
run into, that's fine. We ought to talk about our glitches publicly. Let's bring some
other folks into the room that haven't partnered with us, that are not now intending to
partner with us, and let's see if we can't use the spirit of the moment to create some
epiphanies for some people, that there is another way of doing this.
We have worked with this body and your workgroups and we have put quite a load upon
many of you, and I have heard back from you, pointing out that we are a lot more intense
and we're asking our ACCSH members to do a lot more than they did several years ago. That
is true, we are.
We want you to help us with rule making. This is not to turn our back on negotiated
rule making. You have heard Charles Jeffress say that there will be more negotiated rule
making. We are in favor of negotiated rule making. We will do it wherever and whenever
possible.
But, in those cases that are not suitable for negotiated rule making, for whatever
reason that they're not suitable for negotiated rule making, political or otherwise, we
will come back to this body and ask you to work with us because, as Owen Smith was
pointing out yesterday, a bunch of bureaucrats in Washington maybe are not always the best
resource for how things ought to look on a construction site.
Many of us agree with Owen on that, which is why we have your workgroups and why we
asked those workgroups to be made up of those of you from organized labor that are here
and those of you that represent the contractors that are here, and let's see if we can
have a meeting of the minds on a rough draft, turn it over to OSHA, and we will make it
into an enforceable document.
We might have to change it a tad from what you gave us, but we are the regulators and
we can take care of that format. We have to know what your view is on what works on a
construction site. I'm going to keep coming back to you and asking you for help.
There are areas where we have a problem. We have a problem now in the standard making
process. The standard developing process in this nation takes so long to get done,
particularly if it's a controversial effort that we're going to get sued over, that we
will try and find shortcuts to it.
That's a relatively new phenomenon, at least on the scale that we're doing it. We have
gone to industry and talked about, let's work together on some best practices.
We're doing that now on the tower erection issue, where most of this new crop of
several hundred thousand communication transmission towers are going to be built before
OSHA can generate a standard on what are the work practices that should be followed.
Maybe a shortcut--we're getting kind of desperate here--is, let us sit down with all of
the players in the industry and develop a best practices, and then you guys agree with us
that this is what you'll be following and we will try and hold the rest of the industry,
those that are not at the table today, we will hold their feet to this fire and try and go
down this road.
You heard Charles talk about, maybe for ergonomics in the construction industry, yes,
he wants to do a standard with his resources. He's going to do a general industry
ergonomic standard, first. He believes that there is a need for a construction ergonomic
standard, but he's not talking about that being in the front of the line.
Maybe what you folks--and he was looking at me as well as the rest of you around the
table--in the construction industry want to do is just try some best practices and
guidelines for the construction industry, build us some history we can work on later.
Whether you agree or disagree with Charles that we should go forward with a standard in
construction right now, I see no fault with talking about some best practices, some
guidelines. And whether they work concurrently or are ahead of the standard, to me, seems
to be irrelevant.
We have asked for, and I will continue to ask for, help on improving OSHA's targeting
system. When I give you numbers, one of the things that Steve is always asking me for,
Steve Cooper, is, yes, where are we on focused inspections, what are the numbers on
focused inspections. I give those numbers. Incidentally, focused inspections are going
down.
I don't know whether that's good or bad, that focused inspections are going down,
because you don't have the analysis behind the numbers, who's being inspected. If we are
inspecting the same facilities, the same construction sites that we were inspecting two
quarters ago, four quarters ago, or eight quarters ago, and saying, hey, we need the
numbers, our resources are going down, we have to keep our numbers up, so I used to call
this a focused inspection; I don't feel like doing a focused inspection this time, I'm
going to do a wall-to-wall. It helps my numbers, for reasons that all of you around the
table understand.
If that's why the focused number is going down, that's bad. If the focused number is
going down because we are going to sites that no longer qualify for focused inspections,
like my colleague, Mr. Murphy in Cincinnati, says, the special emphasis program on falls
in Cincinnati is driving his compliance officers to those sites that don't qualify for
focused inspection, and I think that's great.
But I don't think we ought to be hoping and praying that every area director becomes a
Bill Murphy. What we have to do, instead, is develop some overall national policy for
OSHA, a better targeting system for the construction industry than we have used to date. I
have a contract out--OSHA has a contract out through my shop--with a consultant who is
doing a study of the entire Dodge report that will be concluded by the end of this
quarter, and we'll get back to you and talk about that.
Whether or targeting system using Dodge and the University of Tennessee is something
that's broken and can be fixed, or is something that is not being properly utilized by
OSHA as a tool, or something that has outlived its usefulness and has to be replaced, or
X, Y, and Z that I haven't thought of yet. But it doesn't seem to be putting us where all
of us would like to be.
Many of you sitting around this table have companies with outstanding health and safety
records and you are still receiving a disproportionate number of our inspection resources
because we target off the Dodge report. You're the guys we can find, so you're the guys we
visit. I'm sure it's a great help to you.
(Laughter)
MR. SWANSON: And we'll continue to do that. But there are other persons in America who
we are not helping, and should be, and could be, with our kind attentions. I hope that the
workgroup that ACCSH has will help us on our targeting efforts.
CHAIRMAN BURKHAMMER: Some of us could help you find those.
MR. SWANSON: Another thing that I'm going to be coming back to to this group and asking
for help with -- let me interrupt myself. The reason that I continue to use ACCSH as a
focal point, is with the FACA Act, it is very, very difficult for a regulatory agency to
select people from an industry to help us without violating Federal law somewhere along
the way.
So, this committee is a preselected committee, as far as I'm concerned. Whatever
problem I have, I can come to this committee because it was properly constituted under the
Federal laws of this country, and I can come to it and ask it for assistance. I could
probably give you enough work to make your day job go away.
But you can also work through the workgroups and this system where we have developed,
with one or two ACCSH members, we can then bring in others from the construction community
that can sit at your table and can participate in the discussions, and we don't violate
Federal law when we do that. So, I'm going to ask that we keep doing that.
Back to my point. Another area that we are going to be doing more and more of in the
future and we need your help and guidance on is developing outreach materials, compliance
materials.
What is the nature of those materials, how best can we teach, how best can we reach,
who should we reach, where do we reach, how do we reach, and how can we do it as cheaply
as possible? Those are all issues that I will be coming back and asking for assistance on.
Lastly, to close the loop back to these numbers that are going the wrong way, and I
know I'm only using fatality numbers and there are many other problems out there other
than fatalities, but fatality is one number that is very difficult to argue with. That,
clearly, is not going the right way.
It is not a reporting error, it is not a reporting glitch, although certain
organizations don't use the same counting methodology. BLS, from year to year to year,
uses the same system internally. And this town has a lot of difficulty with definition of
words, but dead isn't one of them.
We believe that what has to happen and what we are striving to do, is to find a way
where we can bring about a cultural change on a construction work site, and we will use
any tools and methods that we think or you think are appropriate for changing that
culture. We would like to make as many construction sites as possible in America sites
that OSHA can skip.
We would like to have an area director for OSHA, be able to identify from his targeting
list those construction companies because of his or her experience with them. This is a
job site that I'm going to be able to throw a couple of hours at, and my compliance
officer is more than likely going to be moving on down the road after a couple of hours.
Then, hopefully, we can give them someday the license to either inspect or not inspect,
but for right now we can at least have a plan on what is going to be a focused inspection,
a brief and easy inspection, and get on down the road to target some of those harder
places. I'm going to continue to ask this group to help me find ways to bring about that
cultural change.
That's what you get in place of numbers this morning, Marie.
CHAIRMAN BURKHAMMER: Thank you, Bruce. A couple of comments. At the time you're asking
ACCSH to increase their efforts, I think, if you'll look back over the years of this
committee, no matter who sat on it, they were always willing to do whatever it took to get
the task done and get the job done, and I certainly feel that's the case with this
committee, also.
But, at the same time, all of our companies are also doing what the government is
doing, and that's leaner and meaner, more with less, and each of us see, I think, in our
own departments, in our own house reductions and budget cutbacks, they're demanding more
and more and more of our time also, and it's making it more and more difficult to manage
all the balls that are juggling in the air. I speak for myself, and I'm sure any of the
other members can chip in if they disagree with me.
So I think we need to find a way to utilize the time of this committee better. When we
have workgroup meetings, or we set up workgroup meetings, maybe we can do a little better
job of scheduling, we can do a better job at getting more stakeholders to come to the
workgroup sessions, we can do a better job of maybe expanding the week that we're here and
make it a full week and utilize Monday and Tuesday for workgroup meetings and get as many
of those done and in as we can, and then Wednesday and Thursday have the ACCSH meeting,
and then maybe even have Friday workgroup meetings for those that we couldn't get. We've
got a lot of workgroups, and we want to talk about those before we leave here today. But
that's some of my thoughts.
Anybody on the committee want to add anything? Steve?
MR. CLOUTIER: I'd like to address Bruce's comments, this $317 billion package that's
going out on the heavy highway end of the business, and recognizing that the traveling
public--and I'm part of that--just hates these road obstructions every time we go through
a zone, and they create some of the problems. I don't think any of us around the table
have the solutions.
Many of us have gone to working at nights. If you're traveling at night, it's 11:00,
12:00 at night, that controlled zone as you go in kind of puts you to sleep, and sooner or
later they end up into a Jersey barrier and either killing themselves or killing a couple
of workers along the way. So, there are problems there.
But we have learned in the industry that best practices is the way to go. One of the
best practices is to do a pre-task plan every day, every shift, every crew. Yet, I don't
hear the Agency pushing that. That's where that supervisor sits down with his crew members
and they talk about what they're going to accomplish during the shift.
They have to know what the task is, they have to make sure they have the right tools
and the right equipment, they need to make sure they have the right personal protective
equipment, and make sure that that's identified, provided, and worn. Are there any special
conditions? Have they changed out cranes? It is hot weather, cold weather, the middle of
the night? Are there any permits that need to be signed off?
Then the supervisor signs it, along with the workers on the crew. That means everybody
on that shift should know what's going on, that they have everything and it works well.
I think the Agency can look to this group to provide some best practices. We don't have
all the answers around the table, but I know there's many, many people from the employees'
side, to the employers' side, to your state plans that can provide the Agency with that.
I also believe that if you get away from inspecting certain contractors all the time,
or you just keep coming, and coming, and coming, it's just a waste of the taxpayers'
money. I've been very vocal on that for a number of years. We don't do a good job
identifying the job sites that really need the help.
I think you can go to any construction site and, if you look hard enough and long
enough, you're going to find something wrong, because we're dealing with people, we're
dealing with a work process that changes not only every day, but every hour and every
minute something's changing.
So, certainly, you're probably going to find something that doesn't meet the standard.
But if you look at the job site, it's clean, and your employees are wearing personal
protective equipment, it's probably a pretty good site and you don't need to waste
taxpayers' money being there.
Fatalities. All of us hate them; they still come about. We are dealing with people, we
are dealing with processes. Things go wrong. People take chances, people don't plan their
work. It's not good that those numbers continue to go up. We've been unfortunate. I've had
some over the years and it's a terrible price to pay in our business, and I feel for those
numbers. I wish there was a solution there.
But we see the work force as, anybody that's good is working, anybody that's halfway
good is working, and we're now working what I call third- and fourth-tier warm bodies out
there because the demand exceeds the supply of qualified workers.
Partnerships with your local area directors, we ought to go for that. Let the local
area director cut is own deals. He knows his contractors. He knows the employees in that
area. Make some arrangements. It's the right thing to do.
If we can't get VPP going and we want to do it on a national basis and it takes us two
years to qualify that contractor and their employees, the job is over with anyway so we
have missed that.
Let the ADs do that. Those regional offices can cut those deals. Let's start somewhere,
use them as test cases, and look at lessons learned with those contractors, those trade
associations, and the employee participation and see where we go from it.
Let the ADs around the company come back in and say, hey, we did 120 in fiscal year
1999, and 100 of them worked. Ten of them didn't work, and here's the reasons why, and 10
of them were somewhere in the middle. Look at all the great things.
If we look at the numbers rising, where would we be if contractors and employees hadn't
made the big leap forward to making safety first on construction sites, the emphasis
that's been there for the last decade, and especially the last five years, throughout the
industry.
If we think the numbers are bad today, where would they have been had we not made
changes? The number would be significantly higher than the numbers you've given today.
I think there's significant room for opportunities. I think the barriers are out there.
We should take them down. Just because we haven't done it that way doesn't mean it can't
be done, or just because we did it that way before we can't change. It's just time to move
forward.
This $317 billion is a lot of money that needs to be spent. Maybe there needs to be a
line item in some of those contracts to address environmental safety and health issues,
because the taxpayers are paying it. Congress is going to release the money. It's going to
go to the states, it's going to go to Federal projects. Let's just make it happen.
But so many times the business is driven by who is low bid. That's all we hear in this
country. We've driven down the low dollar. We want lower for less, and it's hurting us.
That's all I have to say, Mr. Chairman. Thank you.
CHAIRMAN BURKHAMMER: Marie?
DR. SWEENEY: Bruce, I don't need to hear numbers when I can hear a strategic plan, or
at least people thinking about it.
I want to follow up on what Steve had. He stole all my ideas. But one of the issues is
partnerships. I think we're doing it, a lot of agencies are doing it, and I'm glad OSHA is
doing it.
But I think part of it is, the small guy, even the large contractors, really don't know
how to partner, who to go to, and what are the best avenues. Perhaps it is something that
the Agency needs to think about in terms of how we're going to recruit people.
You've got people on sites. Everybody thinks of OSHA, compliance, enforcement, and
fines. So, there may have to be some -- I don't know what you do in your partnerships, but
I think how to partner, and then what are the constraints in that box.
One of the other issues is, when you have compliance officers on site you might want to
use them as your eyes and ears for not only the problems, but also the solutions to the
problems. I was visiting Europe a couple of weeks ago, talked to the folks from the Health
and Safety Executive in the area of developing occupational exposure limits.
But they used their inspectorate to come back and tell them the good things are
happening, what bad things are happening so they can put either one on the agenda. So,
maybe we have to sort of get a brain shift.
In compliance, they have to look at compliance, but I think they might want to bring
back to you all what good things are happening on a variety of different sites. That might
need some thought as to how they do it and document it for you.
The last issue, is communication and development of outreach materials is really
important. But, after looking at the outreach materials for small businesses on the
respirator protection standard, there needs to be some thought as to how that material is
put out.
You can't put out a 68-page document that says, this is for the small business, because
you have to decide who's going to read it. There needs to be some review of it by the
people who are going to use it, some thought about the reading level, the amount of
material that has to be in there.
NIOSH is struggling with this issue as well, but we're moving ahead, and I think you
all can do it successfully as well. You might have to bring in contractors to do it. You
might not want your staff to do it.
Thank you.
CHAIRMAN BURKHAMMER: Larry?
MR. EDGINTON: Let me start by following up on some of Steve's comments. He's absolutely
right with respect to the bidding process having such a strong impact on job site safety
and health.
One of the things I was curious about relative to that, Bruce, is what does OSHA know
about the Federal Highway Administration requirements in terms of the Federal Highway
Transportation grant monies, and what, if any, requirements are contained therein for
recipient agencies to have or require contractor safety and health programs, so to speak,
for one? And I don't know the answer to that. I'm asking you.
Two, what do we know about what the Federal Highway Administration might consider to be
a necessary and allowable reimbursable cost under the grants program for safety and
health, particularly with respect to new ideas.
For example, it's not at all uncommon, and nobody seems to have problems with it in the
industry, is that you get bonuses if you come in on time, early, or under budget. But we
tend not to talk so much about what your safety record is and whether or not you should be
entitled, or there should be some economic incentive for excellent safety records.
I don't know what the Federal Highway Administration's view is on that, but it strikes
me as something that should be explored, either with them or with your state plan partners
with respect to how we might establish programs like that for state recipients of those
funds.
I'm aware that the Federal Highway Administration has done some work over the last, I
guess, about two years on work zone safety. While I think it's important work, I'm not
particularly enamored by it in terms of, I think they have under-served the workers who
work in those work zones.
I think most of the work is really focused on the motoring public. I don't know what
there is to be learned from there, but is strikes me that OSHA may want to be looking at
what they have done with respect to best practices there.
It's also my understanding, I believe in December NIOSH is hosting a two-day conference
here in Washington that is going to be addressing some of the same issues that you raised
about working at night, the whole issue of work zone safety.
I'm wondering if there is any OSHA involvement with that, and if not, that you ought to
be at least looking at -- it looks to me, from a cursory review of their agenda, that much
of what they're talking about is really going to be focused on trying to identify best
practices, and there may be a lot to be learned there.
CHAIRMAN BURKHAMMER: I think I can answer your question on the contracts. Most Federal
Highway fund contracts are joint contracts with the state that the job is in, the bridge
that's being repaired, or the highway's being repaired or built. We have a contract
similar to that in Massachusetts with the Federal Highway and the Mass highway.
Again, it depends on what type of contract you have with FHA or the state. If it's a
consulting contract, an architect, or an engineer contract, there's very, very limited
safety and health language in those types of contracts.
If it's an agent for the owner contract, or a contract administration contract, the
language is in there so that the agent or the contract manager, even though the contracts
are on the state paper, it's referencing back to the contractor's responsibility to
implement safety and health measures.
If you're a PM, or a CM, or a prime or a general, there's a lot more emphasis in there
on safety, and they reference OSHA in the state plans, or whatever type that particular
state has. Then it's up to the prime, the general, the PM, or the CM to put whatever teeth
in the subcontract language they wish to put in.
So, there's a great variance in that and there's no mandate from FHA, or, to my
knowledge--and Harry, you might comment from the state aspect--that they have a certain
requirement built into their contracts.
MR. EDGINTON: That's my understanding as well, and that's why I've raised it before.
Maybe that's something to look at. All of us have seen situations where, and these are the
things that distress me terribly, is you may have 10 contractors that bid a job, everybody
has a line item for safety, the low bidder has $100,000 for safety, and every other bidder
has half a million, and he got the job by $200,000, and they give it to him. That's nuts.
Agencies are buying trouble. It seems to me that those are the kinds of things that
people need to start looking at, just the relationship between some of the line items,
some of the appropriate numbers that have been built into them and the impact that's going
to have on job site safety and health.
From my own experience when I worked in the field, most awarding agencies, they focus
on that bottom line. The fact that you have bid a pittance for safety and health doesn't
seem to disturb them in the least.
CHAIRMAN BURKHAMMER: DOE and DOD are exceptions. Every other state or Federal
contractor, to my knowledge, is low bid. But DOE and DOD contracts have a variance in
there that they do not have to take the low bid if certain criteria are met.
Owen?
MR. SMITH: Stew, I know in Los Angeles on that Metro rail system, they've done
partially what Larry had alluded to. In addition to the penalties that go with completion
and early finish, there is also a premium for a safety record.
As a matter of fact, the guy's got a good safety record, he gets so many hundreds of
thousands of dollars. It doesn't get down to us, but the prime certainly makes dollars. So
I would assume that those Federal dollars could be used the same way on the highways.
CHAIRMAN BURKHAMMER: Well, and I can speak on the red line contract, that was put in
there as a joint effort between the municipality and the prime. Bechtel happened to be the
prime on that. We built that into the contract. It's a shame you said it didn't get down
to you, because it was supposed to.
(Laughter)
CHAIRMAN BURKHAMMER: So if you didn't get your cut, call me, because something went
wrong there, or you weren't safe, one or the other.
Felipe?
MR. DEVORA: Some of the comments that Bruce made this morning, I think, were right on
the money as far as dealing with the area directors and the comments that Steve made. I
mean, who better knows the contractors in the area than the area directors? If that's
truly the direction that OSHA is looking for for better targeting, you've hit the nail on
the head there, Bruce.
But when we talk about partnering, at least when I talk to local contractors and they
ask me, what does this partnering mean, what is it, is it a piece of paper where we all
shake hands and pat each other on the back and say we're partnering, or what are the nuts
and bolts of it?
What it boils down to is what the contractors, and the safe contractors, and the guys
that are trying to do it right, and the ones that obviously the compliance inspectors are
spending too much time on because of whatever targeting methods are out there, those
contractors want to know, what's in it for me. But what we tell them, is it's not an
agreement. We're not swapping. We're not in the deal-making business, we're in the safety
business.
But, inevitably, what it comes down to is they will ask, in this partnering agreement,
what do I have to do as a general contractor to be--or as a contractor, not necessarily a
general contractor--in this group, to be in this group that, when OSHA looks at me on a
targeting list or a Dodge list, or whatever, says we met that company, we know their
program, we know they're out there, let's go on, let's not waste the time and fool with an
inspection, we know this company.
I think area directors are perfectly suited for this kind of -- mandated for that kind
of a partnership. Inevitably, the carrot that they're all looking for is not necessarily
an exemption from anything.
We don't want to be exempted from anything. We just want to know what OSHA is going to
do in terms of, if we are raising the bar to be in this elite group, what are you going to
give us back in terms of recognition.
I understand it's been successful in BPP and general industry, and then I think the
four sites that Mr. Jeffress talked about across the country. But that is not what we're
looking at.
We're looking at the areas throughout this country with good contractors that are
trying to get it right, but still have the big stick compliance showing up that says,
we're here to help you, but we're going to cite you because somebody may not be doing
something right.
So I guess the bottom line for partnering is, what can we get out of it eventually?
What we will get out of it, is we can concentrate, like Stew and Steve were saying, and
we're doing a lot more with a lot less. Those are the things that help us do our job and
help us do them safely and raise the bar as far as safety.
I think if we have that group there that says, this is what you have to do to get this
kind of treatment from OSHA, I think we're raising the bar and we're doing nothing but
helping the construction industry there.
CHAIRMAN BURKHAMMER: Harry?
MR. PAYNE: I wanted to ask whether there's anything else in the numbers besides the raw
numbers. We had a similar job, and North Carolina, did a lot of press releases about it
and tried to raise people's consciousness, but it seemed to be focused around the urban
areas of prosperity.
It seemed to reflect some demographic shifts about who was getting killed. The New
York Times -- excuse me. The Wall Street Journal reported that in the
southeastern part of the country, all but two states experienced dramatic increases in
deaths in construction.
I'm wondering whether there was anything learned from the numbers, other than the fact
that it's on the rise. Is there anything about the who, the where, and the why that would
be useful for targeting purposes?
MR. SWANSON: The easy and short answer from DOC is, no, we have not analyzed those
numbers. We do not, at the moment, have the capacity to analyze the raw data the way it
ought to be analyzed.
It's one of my hopes for the very near future to bring that resource on board, because
I agree with you, the raw data is just that and it kind of tweaks your curiosity to go
someplace else with it. But we haven't, as of yet.
MR. PAYNE: Just from anecdotal experience, in North Carolina, the companies that we
would get to by partnering directly don't seem to be a big proportion of the problem, it's
the five guys and a truck operations that, typically, where somebody steps left rather
than right, or touches the wire, or is removing air conditioning duct and touches a wire,
that's where the deaths are occurring.
I have a concern that we are focusing a little bit on the choir in terms of safety and
partnering, or we don't have an easy way to get to the smaller operations where a
disproportionate share of the problems seem to occur.
MR. SWANSON: You're absolutely right on your assumption on those numbers. Where the
serious injuries and fatalities occur, generally, the smaller the employer the higher the
rate, and vice versa. How to target them is one of our problems that's been around
forever, how to find these jobs that last a day, two days, or three days.
The other question that goes hand in hand with that is, is enforcement perhaps the best
tool to apply there? It has to be one of the tools in the bag, but are we missing
something?
Are we missing these people with our education and training as well, for some reason we
are not attracting them to those areas where they could learn best practices, safe
practices which have been utilized elsewhere in the industry, the more sophisticated
elements of the industry?
We have to get a bigger bag of tools and then find out how to get the right tool to the
right place, or one of several tools, even if it's not the best tool, and get it there.
MR. PAYNE: One of the issues that the media has picked up on is an increase in the rate
of death of foreign-born workers, perhaps non-English speaking. They see that question of
communication on a job site as being a potential problem.
My state is somewhat unique, in that we have had a tremendous shift in population,
particularly in work construction. Are you seeing that elsewhere; is there any notion
about that?
MR. SWANSON: Yes. Again, it's largely anecdotal, but we believe that there is that same
phenomenon existing around the country. I have had two or three people tell me that I'm
wrong on that, that the hard evidence really doesn't support it.
But there seems to be too much contrary evidence out there to not believe it. Again,
it's communication between supervisor and work crew when they speak different languages.
One of them might speak southern.
(Laughter)
MR. PAYNE: We're trying to work on that.
MR. SWANSON: And then the training doesn't take if the training is not in a language
that the employee easily understands.
MR. PAYNE: Right. Absolutely. Thank you.
CHAIRMAN BURKHAMMER: Steve?
MR. CLOUTIER: As this discussion went on, a couple of more thoughts came to mind,
Bruce. With this heavy highway transportation bill, we need to get the American Trucking
Association involved.
These are the truckers that drive up and down the road, 80,000 pounds, that don't stop
on a dime, and yet the motoring public pulls in front of them. North Carolina has had a
couple of major, major incidents in the Raleigh-Durham area in the last few years with
multiple fatalities.
The other thing that came to mind, is if we've got CSHO out there doing inspections,
wouldn't it be great if that CSHO, sometime during his inspection, did a one-hour training
session, something new, something novel? We're not only out there for compliance, but we
want to get the best bang for the buck. We've got a government employee there. He should
be trained and knowledgeable of all the work activities.
So why couldn't that CSHO do a one-hour training session on maybe one of the items he
found wrong, or something hot in the industry, and we get the best bang for the buck so
everybody wins, employees win, the contractors win, the Agency wins, and we're not only
out there on enforcement, but we're doing training and we bring value added to the
inspection?
CHAIRMAN BURKHAMMER: Bob?
MR. MASTERSON: I just wanted to comment on something that Bruce said. I think he has
hit probably one of the more important points, and that is, it's the small contractors out
there that seem to be having the disproportionate share of accidents.
I think another problem that we do have that we're overlooking, everybody in this room
has heard the joke and probably laughed at, hi, I'm from OSHA, I'm here to help. But the
truth of the matter is, the worker on the job site doesn't look at OSHA as a friend. They
look at them as the enemy.
It's not because their employers have promoted that. If a compliance officer shows up
on the job site, they don't get to work that day, they don't get paid. They're not looking
at whether the job site is safe or not, they're just looking at the paycheck.
I think we as a group need to give Bruce some advice on where he might go to create a
better relationship between the worker and OSHA. There's not an employer out there that
doesn't want accidents to go away, just by virtue of what it's costing them in worker's
comp and everything else, with the possible exception of Texas.
But we've got to find some way to mend that mind-set between the American workforce and
the compliance officer. They've got to look at that person as a resource and a friend, not
as the enemy.
CHAIRMAN BURKHAMMER: Part of the problem, I think, Bob, rests still with the employer.
If the employer has a non-safety and health attitude or a poor safety and health mind-set,
or doesn't have a good program, or has a paper program, or the employer's supervision is
not out walking the talk when it comes to safety, the workers' mind-set is, go as the boss
goes.
So, if the boss isn't preaching safety, but preaching production, schedule, cost, and
do the job at whatever the cost, the worker needs a paycheck so he's going to do that.
If he works on a job where the employer is safety conscious and safety is a top
priority on the job, the supervisors walk the talk, they preach it, the crafts then become
personally involved in the program and their mind-set changes and they become safety
conscious, more so than they would be on a job that's not that way.
So, even though OSHA may be viewed in one way by some workers and in another way by
some workers, I think, still, the mind-set of how that worker works on that project rests
with the employer.
Marie?
DR. SWEENEY: One of the ways that we've sort of changed our mind-set, is in not only
going to the workers, but thinking about training people who will be in the workforce.
Right now, NIOSH is developing some modules that go into vo-tech, as well as other
post-secondary training programs that deal with health and safety. Seven of those modules
deal with construction, one of which is electrocutions.
Those modules have the opportunity for impacting almost 11 million pre-workers, if you
want to call them that. So perhaps what we need to do is have public/private partnerships
in getting information to the high school, post-secondary, and perhaps even elementary
programs to bring in the issue of health and safety in the workplace.
Plus, if you understand what's going on, say, in the smoking program, you teach
children about smoking, they go home and say, yuck, daddy, you're smoking. So perhaps what
we need to do is think about where our training programs are going.
Now, maybe OSHA doesn't have the mandate to deal with the post-secondary or high school
training programs, but perhaps other people around this table and in the audience would
want to partner on those kinds of things. It is not an inexpensive venture for us or for
others, but once we got the ball rolling it would be easy to permeate the post-secondary
vo-tech programs.
The other thing is, I want to check my fax on it. Both OSHA, NIOSH, DOT, DOE, and a
host of other Federal programs belong to something called the C&B Committee, which is
Construction and Built Environment Committee, which is out of the Office of Science,
Technology, and Policy from the White House.
They have a program. It's a public/private partnership on transportation, and it's
called Pair-T. I don't have all the information and facts on it. I think Ellen Roznowski
has more since she's been going to those meetings more often.
But perhaps it would be useful for OSHA to get most of that information together for
those people around the table, and others, who are thinking about dealing with the issue
of transportation health and safety. This committee has been trying to get that health and
safety language into the DOT appropriations. I'm not sure we've been successful, but the
partnerships can interact and affect health and safety.
CHAIRMAN BURKHAMMER: Bob?
MR. MASTERSON: The other thing I was thinking about, Bruce mentioned that he doesn't
have the resources to do some of the analysis that needs to be done on the numbers that
he's now gotten.
Is there any chance that NIOSH might be able to provide a resource there for,
short-term, to do that number crunching? That's an area that I would think -- there are
some very strong players in NIOSH.
DR. SWEENEY: You didn't hear my plea last year. Last week, the Congress just -- or the
House of Representatives just cut our budget by one percent from last year. In my program
alone, that means a 50 percent budget cut.
Now, I'm not saying no, but actually I think we, in fact, may have -- we may do some of
that data analysis, it's just a matter of getting the folks together. Is it from your IMUS
data or is it BLS? BLS? Oh, BLS can actually do that analysis for you.
CHAIRMAN BURKHAMMER: BLS does their own compilations of their own data.
DR. SWEENEY: But if you ask them, they will do analysis for you. They've done some for
us.
CHAIRMAN BURKHAMMER: Jane?
MS. WILLIAMS: Just two comments. One, going back to the comments that you made, I think
you're absolutely correct. In my unique position, I get to work with general contractors,
small contractors, people who hope to be contractors, whatever the case might be. You
definitely see a disparity in what they want to get out of safety.
Some may give you a dollar amount and that's all they want and they expect you to cram
everything in. The larger ones who know how to play by the rules kind of just say, Jane,
teach us what we need, and there's no sets put on you. You do what you can really do.
You almost have to walk away from some clients when you know you can't service their
needs, because they want to have a show-and-tell certificate, document, program, or
whatever sitting on the shelf when OSHA comes in.
And I really liked yesterday hearing the suggestion by Marc, but I wouldn't go with ENR
or something like that, because that gets to the guys that can afford to buy the magazine,
who already have the message.
I think the point is getting it to the individual worker so he is in the place of
asking the question of his employer, why aren't you doing this for me? That might be
something you might really want to look at.
The second, is on the partnering issue. I have sat in room after room and have heard
this, and yes, I will be there in November. As a national president, I signed a partnering
agreement with the Army Corps of Engineers.
My first comment at that meeting will be, what are you going to do to measure your
success? What do we do after we sign the piece of paper? What can we do to judge ourselves
and our performance to make these things really work, or is this an exercise to show and
tell for everyone?
So I really think there needs to be some real hard looking at what we're saying and how
we can measure our own performance in those areas.
CHAIRMAN BURKHAMMER: The last comment on this will come from Larry.
MR. EDGINTON: Thank you, Stew. Just following up on, perhaps, Bob's comments about
small employers and the need to involve workers, and Bruce's comments about fundamentally
trying to change workplace culture.
I'd like to share with you something that happened to me about a year ago that
suggested to me how serious the problem really is. For those of you that know me, you'll
know that when I'm not in Washington you tend to find me in a very small town about 150
miles from here.
One weekend about a year ago I was standing in line to check out at the local grocery
store. It was a Saturday, end of summer. I came to realize that there were two young men
standing in line behind me, and they're talking about their job.
From looking at their attire, I quickly surmised that 1) they're construction workers;
and 2) it looks to me like they're involved in earth moving. I'm overhearing their
conversation.
Their conversation had to do with their concern about an inherent danger on the work
site they were working, but their thought about it stunned me. What I heard those young
men say was, boy, I hope OSHA doesn't come out, because if they fine our employer, we may
be out of a job.
Until we can get to the point that those young men understand that they are making a
false choice between a safe work site and their employer's economic well-being, we are not
going to be able to accomplish what Bob was talking about. That's an experience and a
thought that has really stayed with me about how serious this problem really is.
CHAIRMAN BURKHAMMER: Good point. Thank you, Larry.
With that, we'll conclude the Directorate of Construction report.
Last night, we put on hold the confined space motion that was brought forth by the
Confined Space Workgroup. Steve Cloutier and Felipe had asked for some time to allow the
committee to review the confined space document that was presented by the committee.
So, if you'll get that out, and Felipe, if you'll start out with your comments, if any.
MR. DEVORA: Mr. Chairman, I'd just move for the previous question.
CHAIRMAN BURKHAMMER: Okay. Is there any other discussion on the confined space?
Michael?
MR. BUCHET: Sure. I read through quite a bit of it, not all of it. I was interested in
the bolded paragraphs that say, note to paragraph X, Y, Z. Is it intended that those stay
there in the materials? Is that a suggestion or are these going to be used as a preamble?
MR. CLOUTIER: Noah, you want to come up for a second? Mike, before we have Noah Connell
address that, the workgroup stressed to the Agency that we should spell out examples time
and time again. As I prefaced my report yesterday to this committee, so many times we
found notes like that in the appendices, somewhere other than in the document.
The workgroup felt that it should be in the document as we went along, and that's why
you see the notes. They give the i.e.'s, and here's an example. That was to help everybody
out so you didn't have to go through 15 or 20 pieces of paper through the length of the
document to find your answer, it was right there as you went along. That's why we did
that.
MR. BUCHET: Yes. I agree with that. There were a couple of places where you have access
to records, and I wondered why the Secretary was not listed as one of the people that
records were kept for. Employees, employers, or authorized representatives, but not the
Secretary.
I'm looking at page 11. Just above Subparagraph B, it says, "Additional
requirements for alternative procedure confined space entry." The line above that,
there's something about, whether training records for the employee are available for
inspection by the employees that are authorized representatives.
MR. CLOUTIER: Yes, but that's standard language. They've got to be available to the
employees.
MR. BUCHET: I don't disagree with that. But a lot of the -- there are some lines in
here where the Secretary -- the availability does not seem to be for the Secretary or the
compliance officer, or anything like that, which I believe is more standard language.
MR. CLOUTIER: Noah?
MR. CONNELL: Yes, there is some inconsistency there that probably should be cleared up.
I'm not sure it's essential to say that it would have to be made available to the
Secretary, since we probably have that authority elsewhere. But we'll check into that.
MR. BUCHET: You certainly see it in other statements, though.
MR. CONNELL: Yes. You're right, you do. We'll look into that.
MR. BUCHET: Keep the records, and -- okay.
I had another one. You talk about forced air ventilation. We're talking about putting
fresh air in, but nowhere do we mention exhaust, or at least I didn't read far enough to
know if we did or didn't.
Would it be possible to add exhaust or to say that you have run the two in tandem, or
are we only talking about pumping fresh air in? That doesn't always do the trick.
MR. CLOUTIER: You're talking about on page 12, then?
MR. BUCHET: I'm looking at page 12, but I think I caught it a couple of other places.
MR. CLOUTIER: So if the document said, "forced air ventilation and exhaust until
all employees" --
MR. BUCHET: Sure.
MR. CLOUTIER: I think that's well-noted.
MR. BUCHET: That's the end of my comments, Mr. Chairman.
CHAIRMAN BURKHAMMER: Thank you, Michael.
Jane?
MS. WILLIAMS: Just a question for Noah. I see in here the reference to "host"
versus "controlling authority." I also saw that in the safety and health. Do you
mean by host the equal of a controlling authority or are you talking an owner position? Is
this a new word that we need to be familiar with, or what's your intent?
MR. CONNELL: Our intent is to avoid any confusion on the matter.
(Laughter)
MS. WILLIAMS: Okay.
MR. CONNELL: I think you're right. The term "host" was used in some other
standards where we talked about the obligations of the employer that brings in a
contractor to their own facility. That's where it first came up.
So it tends to be a term associated with general industry more than construction. But
you are right, we need to make sure that we do not create unintended confusion by mixing
and matching terms.
MS. WILLIAMS: If it's owner, could it not say owner, and controlling authority, the
terms that would mean something, and especially in a definition? That was not in the
definition, I do not believe, and it was confusing.
MR. CONNELL: Yes. We have to be careful about making sure that when we impose
obligations we impose them on people we have jurisdiction over.
MS. WILLIAMS: That's true.
MR. CONNELL: So if the owner is an employer engaged in construction, we don't have a
problem. If the owner is not an employer engaged in construction, we may have a problem.
So, yes, we're going to have to focus a little more on that.
MS. WILLIAMS: Thank you.
CHAIRMAN BURKHAMMER: Felipe?
MR. DEVORA: Stew, on page 10, D-5, there, non-controlling contractors. I really had a
problem with that terminology, that non-controlling is almost an oxymoron to me. That's
telling me that someone's not in control of something, and that's kind of scary in a
confined space standard.
I think performing contractor -- I know it's wordsmithing and this will be refined
again, but non-controlling contractor -- I think performing contractor is a little more to
the point.
Just the terminology, non-controlling -- I think there's 27 mentions of a controlling
contractor, and then you have one mention here that's underlined of a non-controlling
contractor.
CHAIRMAN BURKHAMMER: Yes. I would think, Noah, that if your employee goes into a
confined space, you're automatically a controlling contractor.
MR. CONNELL: Yes. I think the point is well taken.
MR. CLOUTIER: Mr. Chairman, again, we had a motion and a second, and I'm going to call
for the question.
CHAIRMAN BURKHAMMER: We're going to call for the question. The motion was made to
submit the draft procedures for the revised confined space standard that you have in front
of you. It was seconded. We will call for the question.
All in favor, signify by saying aye.
(Chorus of ayes)
CHAIRMAN BURKHAMMER: Opposed?
(No response)
CHAIRMAN BURKHAMMER: The ayes have it. It's duly submitted.
Noah, you'll take into consideration the questions that were raised in your revisions?
MR. CONNELL: Yes.
CHAIRMAN BURKHAMMER: Thank you.
TECHNICAL DATA CENTER TOUR
By Shirley Marshall |
CHAIRMAN BURKHAMMER: Next on the agenda, is a tour for the committee, a tour of the
Technical Data Center with Shirley Marshall.
(Whereupon, at 10:35 a.m., the committee took a tour of the Technical Data Center, and
resumed back on the record at 11:12 a.m.)
CHAIRMAN BURKHAMMER: Let's reconvene.
The next item on the agenda is the standards update. Barrien, are you going to lead
that? Noah is going to. Okay. Here's Noah.
DOC - STANDARDS UPDATE
By Noah Connell
|
MR. CONNELL: Thank you, Mr. Chair.
MR. CLOUTIER: For those that don't know, Mr. Burkhammer, this is the head of the DOC's
Standards Unit.
MR. CONNELL: Thank you.
Let me, first, just address a question that was asked of me earlier that I forgot
about, and that was on the confined space standard and the use of explanatory phrases in
the text of a standard in the form of a note.
There's no question that we can include explanatory information in the text. We like to
do that because it helps people understand what we're saying and they don't have to look
elsewhere to find out what they're required to do.
There is a trickier question as to whether we ought to use the word "note" as
a preface to that, and we will be examining that. That might cause some unintended
confusion, and we'll look into that.
Also, another preparatory remark on the safety and health program standard for
construction. The other day I zealously made the promise to the ACCSH Safety and Health
Workgroup that we would get a draft to you this fall.
After I made this zealous promise and left the room, I began to count the number of
people above me whom I had never spoken to about this and whom I had just purportedly to
bind in terms of a commitment, and realized I had no authority to do that. I apologize.
As to our schedule, it is certainly my hope that, by the first quarter of next year,
we, OSHA, could get you a draft, but I certainly cannot make that commitment. In terms of
where we are, we are certainly working diligently on a draft, but I just can't make any
commitments for the Agency on that.
CHAIRMAN BURKHAMMER: Maybe before the next meeting you could touch all those people
above you and come back and tell us when we can get that.
MR. CONNELL: I'll do my best.
DOC - STANDARDS UPDATE
SUBPART R - STEEL ERECTION
By Noah Connell
|
MR. CONNELL: In terms of update on standards, first, on Steel Erection, Subpart R. As I
think everyone's aware here, we did publish a proposal which came out of the SENRAC
negotiated rule making process.
We are now entering the other part of the rule making process, which will include a
hearing, comments from the public. Only after all that is finished will we be doing a
final.
In the meantime, we will shortly be issuing some compliance guidance to our field with
respect to OSHA's compliance policy on the use of the new proposal in the interim, as it
is now a proposal and when we finally get out a final.
The compliance policy will be as follows: employers can, and are required to, continue
to follow the current rules. If, instead, they want to use the SENRAC proposal, they can
do that, with an exception and a half.
The exception and a half is with respect to deckers. Deckers will continue at between
25 and 30 feet, will continue to have to be tied off as the current rule requires. Our
enforcement policy, generally, is that you can abide by a proposal to the extent that it
is protective or more protective than the current rule.
With respect to deckers, there is not a tie-off requirement between 25 and 30 feet for
deckers in the SENRAC proposal. They are required in the proposal to be in a controlled
decking zone, and there are some other requirements with respect to securing decking and
how much decking does not have to be unsecured within the zone. The policy is that, during
this period, you do have to comply with the tie-off rule as it exists right now.
The other aspect of it is the scope section of the SENRAC proposal. We are going to
make it clear that, as you may recall, there is a long list of activities in the proposal
that deal with the installation of things other than structural steel. Those activities
will be considered within the scope of the proposal to the extent that they have to be
done in order to accomplish the erection of structural steel.
So, just to give you an example, if you have to caulk a structural steel member before
it gets into its final position in the process of installing that structural steel member,
then, yes, that activity is going to fall under Subpart R. But, if it's not essential to
the process of erecting structural steel, then it's not within its scope. It's just an
interpretation of the language in the proposal.
So, we will be issuing a formal notice with respect to this compliance policy in the
very near future. That's where we are on Subpart R.
CHAIRMAN BURKHAMMER: Steve, for the record, I would like you to repeat your comment to
Secretary Jeffress regarding the fall protection heights, if you would. Maybe Noah missed
it. Just for him and for the record, we'd like to bring that up.
MR. CLOUTIER: Noah, yesterday I made a comment to Charles Jeffress, the Assistant
Secretary, talking specifically about fall protection and my concern that Subpart M is the
6-foot rule, Subpart L is the 10-foot rule, now we're looking at Subpart R, steel
erection, at the 15- and 30-foot rule. We have got to have consistency across the board.
The 30-foot rule is definitely too high, in my opinion. When people fall from that height,
they die or are seriously injured. I know there's pressures in places all over the table
on that issue.
There's a number of demonstration projects and a number of projects that are ongoing
with 100 percent fall protection at 4 feet, 6 feet, 10 feet that we know are effective and
have protected workers, and we have effectively been able to get the job done.
But I'm deeply concerned about Subpart R, Subpart L, Subpart M. I think it would be in
the Agency's best interests to come up with one height limit across the board so all
workers, all employers can understand it's X, whatever that may be. Fifteen and 30 is
tough.
MR. CONNELL: I'll echo what Mr. Jeffress said yesterday. We are continuing the rule
making of Subpart R. We welcome comments on Subpart R. Detailed comments are very helpful
to us, information is very helpful to us. So, the Agency encourages you to get us comments
and information on the proposal.
CHAIRMAN BURKHAMMER: Thank you.
MR. CONNELL: Any other questions on Subpart R?
(No response)
DOC STANDARDS UPDATE
SUBPART M - FALL PROTECTION
By Noah Connell |
MR. CONNELL: Fall protection, Subpart M. We are preparing for an advanced notice of
proposed rule making on a number of issues that have arisen since promulgation of the
rule.
The purpose of the advanced notice of proposed rule making is to raise issues, to ask
the public to comment on those issues, to get us information on all these questions. There
will be a number of issues that will be included.
Again, we certainly encourage you to get us your comments and information in as much
detail as possible, because that's really what's useful to us.
We are well along in this process. We have completed a first draft of the ANPR. That
draft is now being reviewed. We are working with the Solicitor's Office so that their
concerns can be met. So, we are moving along well on that.
I'll take any questions that you might have on M. Yes?
MR. MASTERSON: Noah, how soon will the workgroup be able to get a copy of your draft
notice, or how soon do you think it will be available so the workgroup might have it to
work with?
MR. CONNELL: Well, having been asked a similar question on another standard just the
other day, I will endeavor not to make exactly the same mistake as I made the other day.
I'm not sure, but it's looking good.
MR. MASTERSON: It would be helpful to the workgroup if they had that piece to work
from.
MR. CONNELL: Yes, I understand.
CHAIRMAN BURKHAMMER: Michael?
MR. BUCHET: Bob, you asked me to participate in this workgroup. Would it be possible
for OSHA to provide us with a briefing on the progress of this rule making at our next
meeting?
MR. CONNELL: I see my boss vigorously shaking his head yes, so the answer is yes.
MR. MASTERSON: Thank you, Mr. Buchet.
Along the same lines, the workgroup on Subpart M, we've got a little bit of a problem,
in my opinion. That is that the workgroup right now has two employer representatives and
nobody representing the other groups sitting on the committee. I would really ask that the
chair seek to volunteer or appoint a labor representative for the workgroup so that the
output will be more balanced.
CHAIRMAN BURKHAMMER: As soon as Noah finishes, we're going to go into the workgroup
discussions. So, if you'll hold it until then, I'd appreciate it.
Noah, please continue.
DOC - STANDARDS UPDATE
SUBPART L - SCAFFOLDING
By Noah Connell |
MR. CONNELL: The other rule making I'll talk about is scaffolding. We are also doing an
advanced notice of proposed rule making on scaffolding. Again, the purpose here is to
raise issues that have surfaced since the rule was promulgated.
Where we are in this process, is we have collated the issues that have come to us in a
variety of forms in terms of letters and phone calls that we've received. We have that
list.
We have a first cut analysis of those issues. I want to thank the Solicitor's Office,
in particular, for helping us in putting together some of the background information with
respect to some of the prior rule making on those issues so that we can make some
decisions about which ones of them should be included in the advanced notice of proposed
rule making.
So we are now at the point where we're almost ready to present our analysis to the
folks above us, and then we'll be proceeding with figuring out and making choices as to
which of those issues get included.
CHAIRMAN BURKHAMMER: Thank you.
Michael?
MR. BUCHET: Now that your boss is gone, is that something that you could brief the
Scaffolding Workgroup on?
MR. CONNELL: I'm sure that the same answer that went for the previous one would work
for this one. Yes, I'm sure we can.
MR. BUCHET: We appreciate the answer because that clarifies something about the
workgroup's existence.
CHAIRMAN BURKHAMMER: Any other comments or questions for Noah?
(No response)
CHAIRMAN BURKHAMMER: Thank you.
MR. CONNELL: Thank you.
CHAIRMAN BURKHAMMER: All right.
Now, if you'll take the handouts that I passed around on the workgroup assignments and
the sign-up sheets that the public participated in yesterday, I want to go down the
workgroups and I'd like the chairmen or co-chairmen of the committees, whoever's present,
to tell me if the committee is still ongoing, if it needs new members, if it needs a
change in type of membership, or it can be dissolved.
Safety and Health Program Standards. Steve?
MR. CLOUTIER: Still ongoing.
CHAIRMAN BURKHAMMER: Is your membership all right?
MR. CLOUTIER: Membership's fine.
CHAIRMAN BURKHAMMER: Training. Steve?
MR. CLOUTIER: It's still ongoing.
CHAIRMAN BURKHAMMER: Membership?
MR. CLOUTIER: It's fine. Did you get Fall Protection, Mr. Chairman?
CHAIRMAN BURKHAMMER: No, I haven't gotten there yet. It's down on the list. I'm going
in order.
Confined Space. Steve?
MR. CLOUTIER: I think that committee has finished at this time. It should be dissolved.
CHAIRMAN BURKHAMMER: Motion to dissolve?
MR. CLOUTIER: So moved.
MS. WILLIAMS: Second.
CHAIRMAN BURKHAMMER: Moved and seconded. Discussion?
(No response)
CHAIRMAN BURKHAMMER: All in favor of dissolving the Confined Space Committee, signify
by saying aye.
(Chorus of ayes)
CHAIRMAN BURKHAMMER: Nays?
(No response)
CHAIRMAN BURKHAMMER: The committee is dissolved. I want to thank the committee for
their efforts and their fine work on the confined space document. You did an excellent
job.
Sanitation. Jane?
MS. WILLIAMS: Ongoing. Membership's fine.
CHAIRMAN BURKHAMMER: Scaffolding. Owen, Michael?
MR. BUCHET: It's ongoing. Membership is much better than fine.
CHAIRMAN BURKHAMMER: Good.
Safety Excellence Recognition. Larry?
MR. EDGINTON: Yes, I need to talk. It's ongoing. We have a membership problem, but
there's a reason and we'll talk about that.
CHAIRMAN BURKHAMMER: Enforcement Priorities. Bob?
MR. MASTERSON: At this point, particularly after Bruce's comment this morning, it has
not been active, but I think we need to get more people assigned to the group. At this
point, looking for enforcement priorities, outside of the two co-chairs, there's only one
other person signed up. We do need some more participation in that.
CHAIRMAN BURKHAMMER: I'd ask the public, if anybody would like to add their name to
that workgroup, please see Bob after the meeting and sign up. I know he'd appreciate it.
Fall Protection. Bob, Felipe?
MR. MASTERSON: As I said, Felipe and I have gotten together on one occasion to start
trying to plan out how we wanted to proceed. One of the issues was we needed to be fully
briefed on what the needs of OSHA was, as well as we need to get a more balanced
representation on the workgroup. Right now, we don't have anybody representing labor or
the general public, as far as, like, the Agency itself.
CHAIRMAN BURKHAMMER: Our labor contingent is one person short on the five-member
participation group, and three of them aren't here. That leaves Larry to speak for his
contingency. Could you talk to them and kind of lobby and get one of them to participate,
please? Then give Bob a call and let him know.
MR. EDGINTON: Yes.
(Phone ringing)
CHAIRMAN BURKHAMMER: Speaking of giving Bob a call, that was quick!
(Laughter)
MR. SWANSON: Mr. Chairman, I understand that before your next meeting you will have a
fifth labor participant.
CHAIRMAN BURKHAMMER: All right. Thank you.
Data Collection. Marie, Michael?
MR. BUCHET: It's fine. Are we going to call it Data Collection and Targeting? Because
the sign-up sheet still exists as two separate groups and I think it's confusing some
people, who we're going to communicate with and when we're going to communicate with, and
we'll sort of merge the two topics and discussion in the one group.
So the membership is fine, but we would like to bring all the people who think they're
going to do targeting into the Data Collection and Targeting Workgroup. It's a
housekeeping detail.
CHAIRMAN BURKHAMMER: When the committee was first constituted under the last ACCSH
group under Ana Marie, it was a combination then of Data Collection and Targeting. So, it
should be one group called Data Collection and Targeting. So, if we split it up into two
sheets, all those who signed up for Data Collection and/or Targeting will now be merged
into one group.
MR. BUCHET: Thank you.
DR. SWEENEY: One other thing, Mr. Chairman. We would like to get at least one person
from BLS to work with us on that group, if OSHA could work with us on that, or at least be
advisory.
MR. SWANSON: We will certainly work with you on trying to bring that about.
DR. SWEENEY: Thank you. Thank you.
CHAIRMAN BURKHAMMER: Cranes - Subpart N. Larry?
MR. EDGINTON: Ongoing. I think we now have a pretty good distribution of members on the
workgroup.
CHAIRMAN BURKHAMMER: Good. Thank you.
MSDs. Marie?
DR. SWEENEY: It's looking pretty good. We have lots of work to do.
CHAIRMAN BURKHAMMER: Hexavalent Chromium. Owen?
MR. SMITH: Ongoing. I'll have to speak to Bill.
CHAIRMAN BURKHAMMER: Okay.
Multi-employer. Jane, Felipe?
MR. DEVORA: I need a clarification. On the minutes of the meeting, and I don't know how
-- we talked about it yesterday, Danny, Jane and I. If you look at the minutes of the
meeting, Danny was assigned as co-chair to this committee and Jane as a member.
She signed up as a member of the committee. So, in the minutes that we approved
yesterday, Danny was in there as co-chair for this committee. We've already discussed it.
It's not an issue. We just want it clarified for the record.
DR. SWEENEY: I don't believe I have a problem with that.
CHAIRMAN BURKHAMMER: Sorry, Danny.
MR. EVANS: While you've ditched me, I'd like to participate on the Fall Protection
group, if I could.
CHAIRMAN BURKHAMMER: All right. Bob, would you make a note of that?
MR. MASTERSON: Done.
CHAIRMAN BURKHAMMER: So Multi-employer. You're satisfied with Multi-employer? Okay.
Special Assignment Form 170. As the committee knows, I gave you 30 days to mark up your
form and respond to Steve. This will basically be a one-shot group and they'll resolve at
the next meeting the revision to the form 170, and at that time we'll dissolve that group.
Silica. Marie, Larry? Larry.
MR. EDGINTON: I think one of the things that would be helpful to me is a clarification
of our charge. In particular, when the representatives from the Solicitor's Office were
here, they posed three or four questions. It might be helpful to have those questions as a
starting point for our work.
DR. SWEENEY: Larry, I got their phone number, so I think we can call them and do that,
if that's appropriate.
CHAIRMAN BURKHAMMER: Jim, maybe you could use the new search method we just saw and
draw up the minutes from the last meeting and pick out those three questions and supply
them to the workgroup.
MR. BOOM: I'd have those next week.
CHAIRMAN BURKHAMMER: Thank you.
Salt Lake City Construction Advisory Workgroup that we constituted yesterday. Michael,
Bob, you guys are just starting.
MR. BUCHET: Ongoing. Membership is an issue.
CHAIRMAN BURKHAMMER: Membership is an issue.
MR. BUCHET: Let me try to maybe clarify, I think, a point of misunderstanding. What
Salt Lake City is looking for is not so much people with the computer expertise to put
this stuff on the Internet.
They are going to get in-house and hire a contractor to do the graphics. They're
looking for people with the construction expertise to give them the content and to comment
on the content they already have. So, if that clears it up, we'd love more help.
CHAIRMAN BURKHAMMER: Based on that --
MR. BUCHET: We're putting NIOSH on there. I just got a volunteer.
CHAIRMAN BURKHAMMER: Based on that plea, again, the public, if you would like to sign
up for that, please see Michael after the meeting.
And the last one is the task force that Jane and Felipe are going to chair, and I'm
going to participate in, and that's the structure of ACCSH workgroups.
MS. WILLIAMS: I think it was Steve Cooper who was assigned to that, not Felipe.
CHAIRMAN BURKHAMMER: Ah. Out of sight, out of mind. Okay. That takes care of the
workgroups review.
Each of you have your sheets. You should have everybody's sheets in here, so you have
the phone numbers. I would ask that the chairmen, when there is a workgroup meeting
scheduled, I'd like the chairmen to please personally notify the members that have asked
to be participating in the group so there's not a glitch or a problem in coming to the
workgroup like we had this time.
DR. SWEENEY: Mr. Chairman, I have one person, Carl Heinlein, who has got his name on
here but no phone number. If he has an e-mail address, it would be easy. Is he here today?
CHAIRMAN BURKHAMMER: Carl? He was here a minute ago.
DR. SWEENEY: But there's no phone number, no e-mail address. So, come and see me.
CHAIRMAN BURKHAMMER: See Marie after. Thank you.
Again, if the committee co-chair would set up a system to notify all the public members
of when the meeting is going to be. As I said, I would appreciate the committee co-chair
notifying the public members of when the meeting is going to be. Okay.
MR. BUCHET: Mr. Chairman, on that point then we need to make sure that we have all the
people who have called the Directorate of Construction and said, please keep me informed
of these meetings, sent to us so we can add them to our personal list because, as happened
with the Scaffolding Workgroup, I had, I think, six people, and we had nearly 20 show up.
They were brought in through other associations or through the directorate's efforts.
So, we need a consolidated list, there's no doubt about that, and this is not it.
CHAIRMAN BURKHAMMER: Jim, could you help us with that?
MR. BOOM: Yes. That was the major plan. Just, due to lack of resources --
CHAIRMAN BURKHAMMER: All right. Then maybe you could send out the list to each
committee co-chair and it will have everybody on it then.
MR. BOOM: Yes.
CHAIRMAN BURKHAMMER: Great. Thank you.
Before we get to the public comment, I want to do two things. I want to set the date
for the next meeting. Let's look at late January or early February time frame.
DR. SWEENEY: I'm not available after February 1. Three weeks' vacation.
CHAIRMAN BURKHAMMER: Why don't we start out looking at the week of January 19. The 18th
is a holiday for a lot of people. Later? The week of the 25th?
Larry, have you got a problem with that week?
MR. EDGINTON: I may. I'm going to have to double-check that.
CHAIRMAN BURKHAMMER: Okay. Bob? Owen?
MR. DEVORA: Which one is it?
CHAIRMAN BURKHAMMER: The committee will meet the 27th and 28th. Committee meetings can
be scheduled Monday and Tuesday. Committee chairmen, get with Jim, and far enough in
advance. Way, way far in advance so we can get rooms.
Also, notify the members of the committee in advance, especially the public members, so
they can get it on their calendars to attend the workgroups.
MR. BUCHET: Could we look at those dates again? Would it be possible to make Monday the
travel day and have workgroup meetings on Tuesday and a half a day Friday?
Some of us out-of-towners would rather travel on Monday, get a little time in the
office, and get here. We lose Sunday at home. At least from Chicago, you can do part of a
day's work, or a good day's work, and get here.
CHAIRMAN BURKHAMMER: Well, another thing we could do, if you want Monday as a free day,
to travel Monday evening, we could have committee meetings. We could have workgroup
meetings Tuesday and Wednesday, and have ACCSH Thursday and half a day Friday.
MR. DEVORA: That's fine.
MR. MASTERSON: That's fine.
CHAIRMAN BURKHAMMER: Does that cause the west coasters a problem? No?
MS. WILLIAMS: No, that's better.
CHAIRMAN BURKHAMMER: All right. Let's do that then. Monday will be open. Travel Monday
evening. Workgroups Tuesday the 26th and Wednesday, and then ACCSH will meet Thursday the
28th and a half a day Friday the 29th.
MR. CLOUTIER: Mr. Chairman, could you also look a little bit further out, possibly the
last week of April, for the second meeting of next year?
CHAIRMAN BURKHAMMER: April, for a lot of us, you and I included, has board meetings and
other meetings.
MR. CLOUTIER: Yes. But let's look at times now while we've got our calendars in front
of us.
CHAIRMAN BURKHAMMER: Well, my calendar ends in January.
MR. CLOUTIER: I'm sure we could share a calendar with you.
CHAIRMAN BURKHAMMER: 1999. Here we go.
MR. CLOUTIER: Or a tentative time, if possible.
CHAIRMAN BURKHAMMER: All right. Let's look at May.
MR. SWANSON: Mr. Chairman, let me state the obvious here. Charles Jeffress likes to
participate in these meetings so long as his calendar allows it. I'm not in a position to
answer for him on either one of these dates.
I'm told I'm not going to see him for the next three weeks; he just left the country
last night. I don't quibble with the January date, and we'll just try and work around it.
But, with the caveat that this does not indicate that we're going to be able to get an
Assistant Secretary to participate with us.
CHAIRMAN BURKHAMMER: Understood. I think, Steve, that's going to be awful hard to do.
DR. SWEENEY: Mr. Chairman, you run into Easter, kids' schedules and other things like
that.
CHAIRMAN BURKHAMMER: Plus, you've got board meetings, plus you've got construction
safety executives meets on Wednesday in March. April? May?
MR. CLOUTIER: No, it meets in March.
CHAIRMAN BURKHAMMER: Let's just plan for January and then maybe after that we'll be
able to plan a couple of meetings ahead. I don't want to take a chance on not getting the
Assistant Secretary at two meetings in a row. I don't think that's --
MR. BUCHET: Mr. Chairman, would you like to look at some possible alternatives that
people could pencil in?
CHAIRMAN BURKHAMMER: You guys are going to push me into this, aren't you?
(Pause)
CHAIRMAN BURKHAMMER: No.
MR. SMITH: Thank you for your consideration, Mr. Chairman.
CHAIRMAN BURKHAMMER: Is there any new business or any items that any committee members
would like to bring up for discussion at this time? Marie?
DR. SWEENEY: If possible, and I understand there's resource issues -- if, in fact, we
can get materials for the meeting at least two weeks in advance so that, like the confined
space document, we can have appropriate time to read it, have some thought about it
instead of doing it the night before, that would be really helpful.
Also, maybe this is taken care of now that we have all the chairs for the workgroups,
but I found out there was a workgroup -- the date of the letter was the 24th, the working
group was the 29th, and I didn't get my mail until the 28th. So, that may help if we can
say we're going to get all the information two weeks in advance.
CHAIRMAN BURKHAMMER: Duly noted. Thank you.
Any other comments, questions? Steve?
MR. CLOUTIER: Yes. I would hope the Agency would block some rooms over here at the
Hyatt for the next meeting so we don't get into this high-rent district. These are
extremely expensive room rates for out-of-towners that come here.
CHAIRMAN BURKHAMMER: I think it's becoming more and more difficult on the per diem
rate, the government per diem rate, to find a decent room in D.C.
Marie?
DR. SWEENEY: Mr. Chairman, one other thing. It's a little more pleasant thing. Ellen
Roznowski went to the web and found some information on the Pair-T program, on PATH, which
is the Partnerships for Advancing Technology and Housing. These are both coming out of the
construction and building subcommittee of OSTP.
Also, I think it's the synopsis, or actually a table of contents of a report that Labor
has put together for NIOSH on intervention strategies for preventing road construction
worker fatalities and injuries due to motor vehicles. I'll pass these out to the
committee. We just received them now. Thank you, Ellen.
CHAIRMAN BURKHAMMER: The acting chair is noticing more and more that any time this
committee wants anything, needs anything, or seems to come up with a road block, Ellen
finds it for us. So, we really appreciate Ellen's contributions to the workgroup.
Any other new business, concerns, comments?
MR. DEVORA: Mr. Chairman?
CHAIRMAN BURKHAMMER: Felipe?
MR. DEVORA: I'll direct this to Bruce before we break into our workgroup session. I
know Multi-employer is going to meet.
As I look down the list of workgroups that we have, a lot of them are towards standards
or regulation type issues, but there are a few, obviously, multi-employer that gets into
really the Agency's policy. I think we're talking about a directive, the draft that Noah
passed out yesterday is what we're talking about.
What do you look for from the ACCSH committee as far as input? Obviously we're not
going to change your mind on policy unless we just break new ground and discover something
that you haven't thought of. So I guess my question to you is, how can we effect policy
that obviously OSHA is pretty set on?
MR. SWANSON: I'm still having trouble with the comment that, obviously, we're not going
to change your mind unless we break new ground. What we are looking for from this
committee, this is our best direct contact with the construction industry.
I think that you are far, far too pessimistic in your appraisal as to whether or not
you can change our mind. Your input is very important to us. You have a better feel for
your industry than many of us inside this building feel that we do.
Along those lines, that makes Bob's point about the balance on a workgroup very
important, because if we are going to heed the guidance given to us by a committee, this
is not the entire construction universe sitting in this room, but we tried to select an
adequate cross section from it and we would like to get as many voices as possible on the
workgroup. We'd certainly like to hear from both employer and employee groups when you are
suggesting to us what our policy ought to be.
I assure you, although it might appear that we never change our minds, that is not the
case at all. I think the issue that we spent a lot of time talking about here in the last
day and a half on multi-employers is a pretty good indication that we have heard the
construction industry and are moving in reaction thereto. So, did that answer it?
MR. DEVORA: Yes, sir. Thank you.
MR. SWANSON: There's hope.
CHAIRMAN BURKHAMMER: And I think Steve can comment as well as I, or more than I, even.
I've been a part of this committee for six years now, and Steve longer than I. And even in
coming to the sessions before my six-year tenure, I've noticed a substantial improvement
in the use of ACCSH by OSHA in the last few years.
I think, years and years ago, and Steve, again, can comment, some people in OSHA viewed
the ACCSH as something that had to be there because it was required by the Federal
statute, and they used them when they felt like it and they didn't use them when they felt
like it, more the latter than the previous.
So, now I see more interaction, more participation in the workgroups by the people in
Bruce's shop, more knowledgeable people in Bruce's shop. Not that he didn't have
knowledgeable people before, but he's certainly getting a lot of the cream of the crop,
now. They're very knowledgeable. They're working with the workgroups. We're getting a lot
done. I think Steve's confined space report verified that. So, I see a big difference than
from in the old days. Steve, do you want to share any thoughts on that?
MR. CLOUTIER: Years ago, this committee was used, abused. There was definite barriers
amongst members on the committee. There was a significant barrier wall between the Agency
and the committee.
I have seen, in the last 10 years, where these walls have come down and both sides of
the table are talking, everybody is committed to improving safety and health for
employees, and the end product of improving our safety records and just making it a better
world to live in.
We have seen far better participation from the Agency. Ten years ago, we didn't have
the DOC. It was a dream out there. We fought very long, very hard, and were very vocal.
Members, previous to my tenure, were very adamant about it. I was adamant about it. It has
come to fruition. Bruce has got a good shop now, he's got some good, talented people
there.
We're not the enemy, they're not the enemy. We're all working together to try to come
up with a decent product at the very end. So, yes, there have been changes, Mr. Chairman.
Things are working. These workgroups are working smoothly. We've still got some tough
hurdles to cross and get ahead and get behind us, but we'll make that happen.
Since I have the floor now, Mr. Chairman, I'd like to bring something else up, though.
When I first joined the organization and was appointed to this committee, the prior ACCSH
had turned down a daily stipend to offset some of the expenses for those of us that had to
travel to the committee, recognizing that this is voluntary participation, and I
understand that. But the Agency is asking more, and more, and more, and more.
We've heard today even more from these members. I think maybe this committee would like
to readdress going back to the Agency, looking for some stipends to the membership. We're
spending significant amounts of time here in the District.
We're spending significant amounts of time of our employers' funds back home.
Something's going to have to give. All of us around the table are doing far more with a
whole lot less, and I'd just like to throw that out on the table.
I don't know what ACCSH or NACCSH is doing, or the Maritime folks, but I think it's
time that we come back to the table and, if the Agency wants a significant amount of time,
effort and dollars from us, that we need to readdress that subject.
CHAIRMAN BURKHAMMER: Jane, would you take that recommendation from Steve as part of the
workgroup on the ACCSH subgroup?
MS. WILLIAMS: Yes, I will. I've noted that to be considered.
CHAIRMAN BURKHAMMER: Marie?
DR. SWEENEY: Mr. Chairman, a couple of points. For the next agenda, would it be
possible to add a presentation by the chair of the Construction and Building Committee on
the Pair-T program, which is on construction and transportation, and also on PATH, which
is the Partnerships and Housing for Advancing Technology? Both of those can deal with
addressing the issue of public/private partnerships.
CHAIRMAN BURKHAMMER: What's the person's name?
DR. SWEENEY: Well, I'll send it through Richard Wright, W-R-I-G-H-T. Another point, is
that over the past eight or nine months we've had the assistance of Camille Villanova on
the Data Collection Workgroup, and she's never turned down a request for us and has really
been quite helpful. So, I'd like to acknowledge her assistance. I'm glad she's going to be
continuing with us.
The other thing, is being new to the committee, to whom do we send workgroup reports
for submission to the minutes, and ultimately to the docket?
MR. SWANSON: All of your staff people are all on the DOC staff, so just work with them
and it will get to my office and we'll take care of it.
DR. SWEENEY: Okay.
CHAIRMAN BURKHAMMER: Bob?
MR. MASTERSON: Just for clarification, my understanding is, workgroup do not submit to
the docket, they submit it to the full ACCSH, who then took that under consideration.
CHAIRMAN BURKHAMMER: Yes, but they can give a report to the staff liaison, as long as
it comes back and the committee members get copies of it. We're not submitting a document
like confined space, we're just giving a report of the meeting to the staff. Reports of
meetings can go to the staff. Anything like Steve presented this time where we're going to
have to vote on it has to come by the chair of the workgroup.
MR. MASTERSON: That's all I wanted to clarify.
CHAIRMAN BURKHAMMER: Any other comments or questions from the committee?
(No response)
CHAIRMAN BURKHAMMER: Any public personnel present that would like to speak? Charlie?
Please state your name and where you're from for the record, please.
MR. MARESCA: Charlie Maresca, Associated Builders and Contractors. Just with respect to
the policies to conduct workgroup sessions, with the Agency's decision to do so much of
its work through workgroups, I think leaving notification to the public up to the
committee co-chairs is only okay as a backup system.
I think that the primary responsibility for notification to the public should remain
with the Agency, even despite the fact that, within the last month when I asked for a list
of working groups, the list of the chairmen, and when those groups were scheduled to meet,
I couldn't get a complete list from the Agency.
I do have some recommendations to make. That is, at least 30 days' notice of a meeting
of a workgroup should be posted, at least on the web site, but I think all of the members
of a workgroup need that much time, especially public members who do not at this point
have these meetings in their schedules. They're going to need some time and I think 30
days is the appropriate amount of time.
In the same vein, any member of a working group should have the materials well in
advance of the meeting so that they don't arrive at the meetings and be asked to speak off
the top of their heads without having considered, in some cases, very important drafts and
semi-final drafts.
Then I would further suggest that, if you can at all, schedule the meetings of
workgroups that are going to happen between this meeting and the next meeting, schedule
those today or within a short time after today, that would be sufficient notice for public
members. They could put those meetings on their schedule.
Then I would have one final question. That is, if the meeting is going to be conducted
by teleconference, how will public members who may not have participated in the past
participate in those kinds of meetings? I know that's a question you won't want to answer
off the top of your head, but it's an important question.
CHAIRMAN BURKHAMMER: Thank you, Charlie.
Jane, will you add the teleconferencing question to your workgroup study?
MS. WILLIAMS: I noted all comments.
CHAIRMAN BURKHAMMER: Thank you, Charlie. The co-chair phone notification was meant to
be a backup, not a primary, so I'm glad you noted that.
Any other public comments? Yes. State your name and your affiliation, please, before
you speak.
MR. HAYSLIP: Hello, Mr. Chair. My name is Mike Hayslip. I'm with Lithko Contracting and
we're in Hamilton, Ohio.
I just wanted to state for the record, as a member of the public, someone outside the
committee, that I believe that ACCSH is doing an excellent job. As a contractor, I don't
think there's a problem with having hard, stiff penalties, as long as they're fair.
But it seems, if you look at the inspections and citations, you're a little bit too far
downstream. I think it's good, with what you're doing here, and especially with the
workgroups, if you'd help the public and serve the end user. It seems like OSHA sometimes
has a little difficulty in helping and serving its end user.
Briefly, two comments--not to debate this particular issue, but to paint a broader
picture--with the respiratory issue. Granted, there's a large, somewhat lengthy
publication that comes out. Make it a little more user friendly. If something exists that
is 50, 60 pages, etc. -- if I had one sheet that had two points, granted, I'm not going to
get the 50 points that are important. I've got those, too, but if I don't read it, I don't
have any. I've got zero. I think looking at the end user is important.
I think Mr. Smith made a good point, and he represents the sentiment, in that with this
evaluation thing, granted, if a gentleman or lady is improper to wear the respirator,
wrong is wrong and they can't make it right. They don't deserve to wear it, that's fine.
But there becomes a grey issue here. It's possible that good people are out there and
you're keeping from them the ability to work because they happen to be grey. If you can't
get a doctor to sign off, doesn't want to take on the liability. For instance, I don't
want to debate this respiratory issue. I'm trying to make a larger point.
The form isn't effective, it's fraudulent, whatever, or it's improperly filled out.
You're keeping good, hardworking people that have worked years, and years, and years from
their trade and their craft and it doesn't seem right.
Now, my bigger point is this. I'll be brief. I'm almost done. As you do the workgroup,
thank you for looking at the end user and the bigger picture, and really the craftsperson
in the field. That's who we're trying to help, it seems. I just wanted to reaffirm that
from outside the beltway.
CHAIRMAN BURKHAMMER: Good. Thank you.
Any other public comments? Rich? I should have known.
MR. PFAU: Rich Pfau, Donohue Construction, Safety Director. I think that something
needs to be said regarding yesterday. That is that there were two items where, obviously,
this committee either wasn't consulted, or wasn't consulted sufficiently enough. I'm
talking about the respirator, where the folks sat up here, and there were, like, 20
questions and they couldn't answer but one.
The same thing occurred with the multi-employer. There was an awful lot that probably
could have been done by the members of this committee, and obviously you weren't
consulted.
I think, if we're doing the partnership, why wasn't this done? Maybe there's an answer
to this, but one wonders why this isn't done, especially if the intent is to go ahead and
make a partnership between the user and the Agency. Thanks.
CHAIRMAN BURKHAMMER: Thank you, Rich.
In defense of the Agency, this committee has been working on multi-employer work sites
for 15 years. All of the people that have served on this committee from then until now
have had input, comments, or participated one way or another in multi-employer.
I think the issue is, the Agency is trying to better define multi-employer for all of
us so it makes it easier for all of us to understand the different terms and how OSHA
constitutes a multi-employer.
Felipe and the workgroup hopefully are going to be able to work closely with Noah and
better define some of that. I think we can fix the multi-employer issue. The respirator
issue is another issue in itself.
Any other public comments?
(No response)
CHAIRMAN BURKHAMMER: Very good. I want to thank the committee and the public for their
interest and participation. Meeting adjourned.
(Whereupon, at 12:10 p.m., the meeting was adjourned.)
This is to certify that the foregoing proceedings of a meeting of the Advisory
Committee on Construction Safety and Health, Occupational Safety and Health
Administration, U.S. Department of Labor, held on October 8, 1998, were transcribed as
herein appears, and this is the original of transcript thereof.
SONIA GONZALES
Court Reporter
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