|ADVISORY COMMITTEE ON CONSTRUCTION
SAFETY AND HEALTH (ACCSH)
Rooms N-3437 - AB&C
U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, D.C. 21210
Wednesday, July 22, 1998
STEPHEN D. COOPER
LARRY A. EDGINTON
WILLIAM C. RHOTEN
JANE F. WILLIAMS
Stewart Burkhammer, Acting Chair
|Personal Protective Equipment Proposal
|Powered Industrial Truck Final Rule
|Discussion of Hexavalent Chromium in Construction - Rulemaking
to Control Occupational Hazards
|ACCSH Workgroup Reports
|Sanitation - Steve Cooper
|Confined Space - Stewart Burkhammer
|Crystalline Silica - Standards Development
|Other Reports 65
|Status of Data Collection on OSHA's
|Updated Form 170
|Steel Erection Negotiated Rulemaking Advisory
|Other Reports (Continued)
|OSHA's Strategic Plan for Construction
|Multi-Employer Citation Policy - Discussion of the IBP
Decision and its Impact on Enforcement in Construction
Noah Connell and Bruce Justh
|OSHA Standards Development Progress Report
|OSHA's Electronic Information System
Mary Ann Garrahan
|Subpart M - Fall Protection Issues
MR. BURKHAMMER: Good morning. Welcome to the ACCSH Session. I'm Stu Burkhammer with
Bechtel. I'm the acting chairman of this session.
I'd like to start by asking the committee to go around and introduce themselves and
MS. HARRINGTON: Gladys Harrington, Assistant Director --
MR. BURKHAMMER: Could we please use the mikes when we speak because we're having
trouble for everybody hearing?
MS. HARRINGTON: I'm sorry. Okay. My name is Gladys Harrington. I'm Assistant Director
for Training, International Union of Operating Engineers, Local 138.
MR. DEVORA: Felipe Devora, Fretz Construction Company, Safety Director, Houston, Texas.
MR. EVANS: My name is Danny Evans, Chief Administrative Officer for the OSH Enforcement
Program, State of Nevada.
MR. MASTERSON: Bob Masterson with Ryland Homes, Safety and Loss Control Manager.
MR. RHOTEN: My name's Bill Rhoten with the United Association of Plumbers and
MR. EDGINTON: Larry Edginton, Director of Safety and Health, International Union of
MS. WILLIAMS: Jane Williams, Owner, A to Z Safety Resources.
MR. BUCHET: Michael Buchet, National Safety Council. I manage the Construction
MR. SWANSON: I'm Bruce Swanson. I'm from the Directorate of Construction for OSHA.
MR. BURKHAMMER: Thank you.
Now we'd like to have the audience identify themselves with their name and their
affiliation. We'll start in the right-hand corner.
MR. BURKHAMMER: Thank you.
I'd like to review the minutes. Does the committee all have the minutes? There's a copy
of them in the green folder, if you didn't get them. I think OSHA did a good job of
getting us the minutes earlier this time. I had them about four weeks ago. So, hopefully
you all received the minutes in time to review them.
Any comments or questions on the minutes of the last meeting? Jane?
MS. WILLIAMS: Mr. Chairman? Page 6, I would refer you to, the last sentence. I believe
that is Subpart N, not Subpart M.
MR. BURKHAMMER: Where are you? Page 6?
MS. WILLIAMS: Page 6.
MR. BURKHAMMER: You can all make that change in your notes.
MS. WILLIAMS: Page 8.
MR. BURKHAMMER: Page 8.
MS. WILLIAMS: Last paragraph.
MR. BURKHAMMER: Which paragraph?
MS. WILLIAMS: Second sentence. Regarding the question of in tracking double conflicting
citations, was I correct, Mr. Swanson, in that you were going to evaluate whether that
tracking would be possible to achieve?
MR. SWANSON: Are you in the first full paragraph?
MS. WILLIAMS: Yes. Where it states, "The data was not available, but I was under
the impression that the office may evaluate whether that data could start to be tracked in
MR. SWANSON: That was -- this is an accurate statement of the -- of the assignment and
obligation undertaken, yes.
MS. WILLIAMS: Thank you.
MR. BURKHAMMER: Any other comments?
MR. BURKHAMMER: Motion to approve as amended?
MR. BURKHAMMER: Second?
MR. BURKHAMMER: Questions or comments?
MR. BURKHAMMER: All in favor of the motion, signify by saying aye.
(Chorus of ayes)
MR. BURKHAMMER: Opposed?
MR. BURKHAMMER: Minutes with amendments approved.
If you'll notice on the agenda for this meeting, under ACCSH Workgroup Reports, we have
a report from the Sanitation Workgroup, Steve Cooper, and a Confined Space Report from
Steve Cloutier. I have some notes from Steve.
Bill, do you -- would you like to handle that report?
MR. RHOTEN: Well, I think Steve's got most of that information. I think maybe we can
hold it over, unless you've got some notes.
MR. BURKHAMMER: Yeah. He gave me the notes.
MR. RHOTEN: Okay.
MR. BURKHAMMER: I just wondered if you wanted to do it.
MR. RHOTEN: Well, -- well, if you have the notes, it may be appropriate if you
MR. BURKHAMMER: Okay. I'd like to go down the workgroup chairs and ask the
co-chairpersons if they have anything to report at this meeting, and if they do, we'll
squeeze the committee reports into the agenda.
Safety and Health Program Standard, Bill? Nothing?
MR. RHOTEN: Nothing.
MR. BURKHAMMER: Training, Bill?
MR. RHOTEN: Nothing. We're going to have to have some meetings and further discussion
on that, but at the present time, I don't have anything to report.
MR. BURKHAMMER: And we do have some notes from the Confined Space. Sanitation is yes,
that's on the agenda. Scaffolding, Mike?
MR. BUCHET: We're waiting for the Federal Register announcement of the NIOSH research,
and then we'll update the committee on where that stands.
MR. BURKHAMMER: Okay. But you have nothing to report?
MR. BUCHET: Nothing to report.
MR. BURKHAMMER: Safety Excellence Program Recognition, we have nothing to report there.
Enforcement Priorities. Bob, Gladys, anything to report?
MR. MASTERSON: Nothing to report.
MR. BURKHAMMER: Fall Protection?
MR. MASTERSON: Nothing to report.
MR. BURKHAMMER: Data Collection?
MR. BUCHET: We're meeting at the end of ACCSH Thursday afternoon, 1:15.
MR. BURKHAMMER: Subpart M, Larry?
MR. EDGINTON: Yes. We have met since last meeting.
MR. BURKHAMMER: So, you have a report to present?
MR. EDGINTON: Yes, we have a report.
MR. BURKHAMMER: And Musculoskeletal Disorders has nothing to report at this meeting.
All right. With that, we'll ask John Martonik to make the first presentation, and
that's of PPE. John?
MR. SWANSON: Mr. Chairman? If I might, John, before you start, just to reiterate what
was said at the last meeting, for anyone in the audience or anyone later reading these
minutes that wishes to receive notice as to when these workgroups are going to be sitting,
please notify either the chairs, which you have information on, or if you don't have that
information, the chair or the assigned staff person, contact my office directly, and we'll
make sure you're on the mailing list.
Thank you. Sorry, John.
|Personal Protective Equipment Proposal
MR. MARTONIK: Good morning, everybody. My name is John Martonik. I work in OSHA's
Safety Standards Directorate, and I'm going to talk to you about the status of OSHA's
rulemaking to require employers to pay for PPE. We talked to you last meeting on April
Before discussing the status, I just would like to give you a little background so we
remember what we're doing.
OSHA has standards that require the use of PPE, and some of those standards require the
employer to pay for PPE. Some standards are silent on who pays.
OSHA's policy has been that the employers should pay for personal protective equipment,
except for safety-toed shoes and prescription eyewear. In order to give the field a
uniform direction, in 1994, OSHA wrote a memorandum to the regional administrators
directing them to enforce the standard for PPE to require employers to pay for PPE, except
for those accepted items.
OSHA was issuing citations for employers who did not pay for PPE, and one of those
citations were contested by the Union Tank Company. The Review Commission reviewed the
OSHA citation and basically rejected OSHA's policy. The Review Commission's concern was
that OSHA had several different policies over the years, and they needed to speak with one
voice and explain why we were changing our policies in the past.
OSHA decided not to appeal that decision and instead decided to do a rulemaking. We
thought in a rulemaking, we could get everybody's opinion on what should be done, and it
would be -- it would give everybody the opportunity to -- to give their comments to us,
which we could consider.
On April 8th, we came to you, and we gave you a draft regulatory text for this
standard. I'll read it to refresh your memory.
"All protective equipment, including personal protective equipment, required in
this part shall be provided by the employer at no cost to employees, except for
safety-toed protective footwear and prescription eyewear."
Okay. In response to that draft regulatory text, you did two things. You gave us some
comments regarding that provision, and you also gave us a resolution as to your
recommendations on how to proceed.
We really appreciate your advice on this. Some of the comments you gave were concerned
that employers who now may be paying for personal protective equipment like shoes may stop
paying for the shoes if the standard explicitly accepts them.
You also had some concern about special -- some prescription eyewear. For example,
eyewear that was worn inside full-face respirators. You also brought to our attention some
practical considerations that we might need to consider as to what to do when equipment is
lost or perhaps abused.
So, we appreciate these comments, and I think they apply to all industries, in addition
to construction. So, I think your comments helped us out quite a bit across the board.
You also gave us a resolution, and your resolution was basically to stand by the OSHA
existing standard and interpretation. I'll read your resolution.
"The language currently in 1926.95 regarding personal protective equipment is
effective and is sufficient to protect the worker and provide personal protective
equipment. We recommend leaving the language as currently stated in 1926.95."
Okay. We have -- in response to your comments, we went back internally and took a look
at our proposal, and we went to our assistant secretary, and we've made some amendments to
our -- our proposal.
We still feel that it's necessary to clarify OSHA's policy requiring employers to pay
for PPE, and we're proceeding in that direction, but as we made some adjustments in our
thinking to take into consideration some of your concerns and are going to ask for public
comment about your concerns.
The status of our -- our rulemaking is this. One, we hope to gather some additional
information on the use pattern of PPE in the construction industry and the pay pattern in
the construction industry through a survey.
On June 8th, we published a Federal Register notice asking for -- for OMB to have
approval so that we can do this survey. Again, the survey would be asking representative
sample of construction employers and some other general industry employers what PPE they
use and to what extent the industry pays for that PPE.
We have not yet received approval from OMB. They asked us for some clarifications of
our survey, and we're in the process of providing that information to OMB. But when we
receive OMB's approval, some construction companies may be getting a call from an OSHA
contractor asking them some specific questions regarding what PPE they use and what PPE
they pay for.
We hope to have the results of that survey this Fall.
Okay. We are also in the process of completing the proposed regulation. We're passing
around comments from the different directorates in OSHA. We hope to publish the document
later this Fall and have the survey results catch up to the proposal.
In order to publish this standard or this proposal, OSHA has to obtain review by OMB.
Although the cost implications of this standard is not significant, OMB considers it to be
a policy-significant issue. So, after the department approves the document, we will be
sending it to OMB for their review. We hope to get their review some time this year, and
we plan on -- we hope to publish the proposal later this year, hopefully, you know, in the
Okay. Well, that's the status of -- of the
-- that's a brief description of the past activities and the status.
If you have any questions or comments, I would like to answer them now or take your
MR. BURKHAMMER: John, as you know, at the last meeting, this discussion on this subject
was followed by a great deal of debate by the committee, and there were several motions
bartered back and forth between committee members, and the one that ended up passing six
to two was the resolution that you referred to a minute ago.
Does anybody on the committee have any questions for John? Larry?
MR. EDGINTON: John, I -- the survey request that you have pending with OMB, that's an
information collection request?
MR. MARTONIK: That's correct.
MR. EDGINTON: And the methodology that's going to be utilized, is that a telephone
MR. MARTONIK: Yes, it would be a telephone survey.
MR. EDGINTON: And how is the universe being identified?
MR. MARTONIK: We hired a contractor who has performed surveys in the past, select a
representative sample of industries. However, we had to give the -- we had to give the
contractor some boundaries.
The reason we had to give the contractor some boundaries is that the industries can be
broken down into very narrow sectors, to four-digit SIC, --
MR. EDGINTON: Right.
MR. MARTONIK: -- and in order to get a statistically-significant sample at very, very
low levels, it has to be an extremely large survey, and there is a big cost to the -- to
the agency to gather that information. So, the agency gave some advice to the contractor
as to how fine an industry cut should be -- should be done.
Then the industry -- then the contractor will take what SIC digit levels OSHA would
like the survey conducted and then may select the companies randomly. They have a random
sampling technique for selecting the actual companies who will be surveyed, and the
company -- and the contractor will be doing all the calling, and OSHA will not receive any
information regarding what company responded, how any company responded to the question.
OSHA only will receive the aggregated information from the companies.
MR. EDGINTON: With respect to trying to refine things by SIC or subsets thereof, was
any consideration given to the notion that perhaps there are some segments of the industry
where the use of PPE might be more prevalent than others?
MR. MARTONIK: Yes, there was.
MR. EDGINTON: And --
MR. MARTONIK: And that was primarily based on the professional judgment of the -- the
OSHA staff who worked on PPE standards in the past. Two years ago, we did do a PPE
standard for general industry. It required employers to have a PPE program and do a hazard
analysis of their workplace to determine whether PPE should be used, and we had some data
from that rulemaking.
We were a little short on information from the construction industry, and we hope that
this survey -- so this -- if anything, the survey is asking more construction companies
questions than some of the other general industry questions because we have some older
survey data from general industry, but we threw in some general industry questions to make
a determination whether our old data on who uses PPE is still valid.
MR. EDGINTON: Now, did I further understand it, the PPE data is not the only
information that's being collected with this survey, is that correct? Proposed to be
collected. You're also proposing to collect other types of data as well, are you not?
MR. MARTONIK: The main purpose is to get the PPE data. I think there are some other
questions in the survey that will allow OSHA to use this information in some other
MR. EDGINTON: Hm-hmm.
MR. MARTONIK: Okay. And, so, the questions that are not PPE-related will help OSHA link
this survey to some other rulemakings, such as, for example, maybe the safety and health
MR. EDGINTON: Thank you.
MR. MARTONIK: If -- of course, if the answers come back, you know, in a way that -- it
may show that OSHA can't use this survey data for other purposes.
An example, I guess we can give two, is that OSHA had a PPE survey done several years
ago for the -- for the general industry PPE standard. So, we believe we have some use
information from that survey.
The question is, is that still valid? Well, this new survey will -- will sample some
general industry companies to make a determination whether or not that -- that information
is still valid, although we believe that most of the information we'll need is in the
I'd like you to keep in mind, though, that OSHA's need for this information is
primarily to determine whether the standard is economically feasible, and, you know,
there's an intuitive argument that it's -- it's feasible as well as, you know, the
specific data analysis that we plan on doing.
MR. BURKHAMMER: John, is it possible to get a copy of the survey for the committee to
MR. MARTONIK: Yes. I have a copy with me, and I can give it and make it available to
MR. BURKHAMMER: A lot of times when you do surveys, generalized questions, and a lot of
PPE is specific questions tailored to specific tasks or operations where PPE may be
Does the survey -- is it a general question survey or is it a specific question survey?
MR. MARTONIK: There -- it starts out with general questions and moves into specific
questions, depending on how the general questions are answered.
MR. BURKHAMMER: Okay.
MR. MASTERSON: Yes. Could you describe just how fine a cut you're talking about? Are
you using three-digit SIC code, two-digit, four-digit? If so, which ones?
MR. MARTONIK: I'm not responsible for the whole survey, but my recollection is that
there are two- and three-digit level SICs. The three-digit are for industry sectors that
we think we need more information on, but we don't go any finer than three-digit.
MR. MASTERSON: Can you tell us what three-digit SIC codes you use for construction?
MR. MARTONIK: I can get that information for you. I can get you all the SICs for this
survey. I don't have them with me now, though.
MR. MASTERSON: I -- I would like that to see --
MR. MARTONIK: Okay.
MR. MASTERSON: -- which -- which specific SIC codes you're targeting for the survey.
MR. MARTONIK: Sure.
MR. MASTERSON: I also am a little confused about the reference to general industry and
validating some previous decisions or information that you had.
How does general industry correlate with construction?
MR. MARTONIK: Oh, it doesn't. It's just that the survey that we're using will be done
in general industry as well as construction, and the industry -- and there's no cross-over
between the -- the use patterns in construction and use patterns in general industry. It's
just that the contractor we're hiring is going to do the survey for general industry and
MR. MASTERSON: Will that -- will that data be -- be obtained separately?
MR. MARTONIK: Yes. It will be done by whatever SIC classifications we have.
MR. MASTERSON: Thank you.
MR. BURKHAMMER: Any other questions for John?
MR. BURKHAMMER: All right. John has asked that he be able to at the same time he's
giving this presentation give the one on Powered Industrial Trucks, which was scheduled
for 11:00 on Thursday. So, John, if you're prepared, we'll go right into that.
Powered Industrial Trucks Final Rule
MR. MARTONIK: All right. Again, I'll give you a little background on OSHA's activities
regarding a standard that would require employers to have some specific training programs
for powered industrial truck operators.
As background, OSHA estimates there's about a million powered industrial trucks,
forklift trucks in use -- in use in the United States. There's maybe one and a half
million operators of this equipment.
Several years ago, NIOSH did a study from BLS statistics and showed that powered
industrial trucks are involved in about 100 occupational deaths and about 94,000 injuries
OSHA has existing powered industrial truck standards in construction and general
industry. They were promulgated in 1971. However, the requirement for training is -- is
just very short. I'll read you the existing standard.
"Only trained and authorized operators shall be permitted to operate powered
industrial trucks. Methods of training shall be devised to train operators in the safe
operation of powered industrial trucks."
And this requirement came from an American National Standards Institute consensus
NIOSH, in addition to doing the studies identifying powered industrial trucks as
sources of injuries and fatalities, also did some studies showing the effectiveness of
training. Operator mistakes were reduced by 25 percent when NIOSH provided some specific
training to the operators.
In addition, ASME has a recent consensus standard, B-56.1, and that standard requires
that employers train employees in some specific topics. Topics are specifically how this
truck operates, specific features of the truck. The other set of topics are hazards in
operating procedures for the specific work site.
So, OSHA, based upon this ASME standard, proposed for general industry to amend its
industrial truck operating training, operator training, standard to read more like the --
the more recent ASME standard.
On May 25th, 1926, 1995, OSHA brought that proposal to the Construction Advisory
Committee, and as a result of the comments that we got from the Construction Advisory
Committee, we made some changes to the -- the preamble to the proposal, and we published a
separate proposal that applied to the construction industry on January 30th, 1996.
After that time, we -- we conducted a hearing. The rulemaking record is closed. We're
now in the process of finalizing the standard.
But for the most part, comments on the standard agreed with OSHA's proposal, okay, and
the comments that the Construction Advisory Committee made, such as how employers should
consider some training that the employee had previously received from another employer or
union, how that previous training should fit in to OSHA's final standard, and your
comments on that raised that issue to the attention of the public, and it spilled over
from construction also into general industry.
Another issue that the advisory committee brought up is how to determine the competency
of individuals who have received the training and then are operating powered industrial
trucks, and the construction industry pointed out you have some good methods for doing
that. You have qualified -- qualified persons and competent persons to make those sort of
determinations. So, then that information was useful to us making the -- writing up this
At this time, we plan on publishing the proposal in September. This is not a
significant rule for OMB. So, when we get clearances internally, we can send the document
right to the Federal Register, and the document is in now final review, and we in fact got
some concurrences from different directorates in OSHA and hope to be able to publish it in
Are there any questions on this?
MR. BURKHAMMER: It was encouraging to hear that you took the ACCSH report and included
it in some aspects of the final rule.
Bill Smith from the Operating Engineers and Steve Cloutier co-chaired that workgroup,
and the full committee approved the product and forwarded it on, and I'm very encouraged
to see that you took a lot of the material out of there and used it.
MR. MARTONIK: Yeah. And as I pointed out, I think that other industry sectors also had
some similar concerns, and that supplemental proposal we published in January discussing
your recommendations was helpful to bring that to the public's attention.
MR. BURKHAMMER: Any questions on this subject by the committee?
MR. BURKHAMMER: Thank you, John.
MR. MARTONIK: Okay. You're welcome. Thank you.
MR. BURKHAMMER: Before we continue, we've had a couple of the committee members come in
late. Owen Smith has joined us, and Steve Cooper is with us. Also in the audience, we have
Brad Hammock from the OSHA Solicitor's Office. Brad, would you stand up, so everybody can
see you? Good.
In the audience, is there a Vincent Morano? A John Ranney? 0 for 2.
Continuing on with the agenda, Jeff Snyder will make a presentation on -- this is just
in time. That's right. Welcome.
|Discussion of Hexavalent Chromium in Construction -
Rulemaking to Control Occupational Hazards
MR. SNYDER: Good morning, everybody. Okay. Hi. Okay. First of all, I'd like to thank --
thank you for having us on the agenda for hexavalent chromium issues or hexavalent
chromium discussion. I'll just give -- I'll just give a little bit of a background and --
and -- and cite some issues and then go from there.
On July 19th, 1993, as you probably know, the Oil, Chemical and Atomic Workers
International Union and Public Citizens Health Research Group petitioned OSHA to
promulgate an emergency temporary standard to lower the permissible exposure limit for
hexavalent chromium compounds to .5 micrograms of chromium per cubic meter of air as an
eight-hour time-weighted average.
This represents a significant reduction in the current permissible exposure limit. The
petitioners also requested that, in addition to a new permissible exposure limit of .5
micrograms per cubic meter, a national level of half the permissible exposure limit and
the usual ancillary provisions, such as exposure monitoring, medical surveillance,
regulated areas, personal protective clothing, equipment, and so on be established, just
as our -- just as our other 6(b) standards.
The current permissible exposure limit in general industry is found in 29 CFR
1910.1000, Table Z, and it's a ceiling value of a hundred micrograms per cubic meter for
chromic acid and chromates.
Basically, this is equivalent to a permissible exposure limit of 52 micrograms per
cubic meter of straight chromium, measured and reported as chromium, due to the molecular
weight of the chromium in the compounds.
This ceiling limit would apply to all forms of hexavalent chromium, including chromic
acid, chromates, lead chromate and zinc chromate. These are measured as Chromium 6 and
reported as Chromium Anhydrate from the lab.
The current permissible exposure limit for chromium -- hexavalent chromium in the
construction industry is a hundred micrograms per cubic meter, but that's listed as a
time-weighted average as opposed to the ceiling limit of general industry.
The Environmental Protection Agency and the National Institute for Occupational Safety
and Health and the International Agency for Research on Cancer have reviewed the
epidemiological evidence and have classified hexavalent chromium as a human carcinogen.
Okay. We were petitioned -- we were petitioned for an ETS, I mean emergency temporary
standard, and -- okay. But we denied the petition. Instead, we initiated Section 6(b)
rulemaking. It results in a lower PEL with additional protective provisions and allows for
the scientific evaluation of the data as well as public input into a standard.
OSHA is preliminarily considering a time-weighted average of PEL in the range of .5 to
5 micrograms per cubic meter measured and reported as Chromium 6. OSHA expects to publish
the new proposed standard for chromium in the Federal Register in late 1999. The proposed
standard would cover occupational exposures to chromium, hexavalent chromium, which would
include potential generation of hexavalent chromium when welding or other tasks that
require the application of heat to trivalent chromium-treated metals and/or other
compounds that occur.
We -- we did an analysis for grave danger and determined that in spite of the risk to
-- of hexavalent chromium, we decided not to grant the ETS.
Occupational exposure to Chromium 6 occurs primarily by inhalation but can also occur
to a lesser extent through dermal and oral routes. Exposure to Chromium 6 is known to
cause lung cancer, bronchial asthma, nasal septum perforations, skin ulcers and irritative
and allergic dermatitis.
We reviewed five studies on lung cancer and other cancers among workers in the
chromate-plating industry, and through these studies the risk of death from lung cancer
was statistically significantly elevated, and a form of statistically significant excess
of cancer at all sites was observed.
Chromium 6 causes ulcers of the skin and both irritative and allergic dermatitis among
workers exposed to chromium alloys and chromium-plated jobs. Inhalation of Chromium 6
aerosols at levels of about a hundred micrograms per cubic meter may give rise to necrosis
of the nasal septum leading to perforation.
Bronchial asthma may occur as a result of inhalation of low levels of Chromium 6 dust
or fumes. Such asthma occurs among platers, welders, and ferra chromium workers.
In addition to the health effects previously mentioned, abnormal kidney function has
been observed among workers using special electrodes when welding on armored steel and
among chromium platers.
Some of the more details illustrating non-cancer health effects are studies of platers
exposed to low levels, ulceration, perforation of the nasal septum before -- below 20
micrograms per cubic meter, irritation reported at average levels of one and two
micrograms per cubic meter, decreased lung function among workers with high urinary
chromium, that's greater than 15 micrograms per gram.
Dermatitis since Chromium 6 is extremely corrosive. There's dermatitis with dermal
contact, and the prevalence of sensitization from chromate workers was more than tenfold
higher than in the non-chromate workers, and also sensitization can lead to
Okay. EPA determinations. In its 1984 health assessment document, EPA documented a
number of epidemiologic studies that demonstrated an association between exposure to
chromium compounds and lung cancer. Whether the association implicates Chromium 6 alone is
not definitively addressed by these studies. According to EPA, okay, the report described
several adverse health effects associated with chromium exposure and noticed that adverse
effects were more often associated with Chromium 6 than trivalent chromium compounds.
Chromium 6 is very prevalent in lung carcinogen when the exposure route is by
inhalation. The EPA currently believes that a level cannot be identified below which there
is no increase of cancer. Therefore, any exposure that is associated with some finite
increased health risk, EPA noted that these studies are convincing because of the very
high incidence of lung cancer was observed, and the tumor site in the lung was specific.
One study in particular, the Mancuso study, among cancer among workers at one U.S.
chromate production plant has been thoroughly reviewed by the Environmental Protection
Agency. This was a study of 332 male workers. A 31-year follow-up found nearly fivefold
increase in cancer mortality. EPA derived an estimate of the relative potency of Chromium
6 in comparison to other suspected carcinogens based on the Mancuso study.
EPA's evaluation of this study has formed part of EPA's basis for subsequent regulatory
activities to reduce exposure to chromium.
I have Federal Register cites, but I won't -- I'll give them if people are interested
Also, Hayes investigated 2,000 workers in Baltimore and found a three-to-four increase
in cancer mortality in employees of at least three years.
After EPA published its notice of intent to list Chromium 6 as a hazardous air
pollutant, EPA received a number of comments. Some comments commented on whether EPA
over-estimated the potency of Chromium 6, and in response to the comments, EPA determined
that -- and this was in the Mancuso study. EPA determined that the Mancuso study is the
most appropriate quantitative risk estimation because it presents lung cancer instance by
both dose and age, and the risk assessment calculated from other studies generally
supports that -- supports those calculations from the Mancuso study, and EPA considers
Mancuso data to be a reasonable approximation of the Chromium 6 to which workers in the
study were exposed during the entire working history.
EPA has also calculated the potency factors in other studies, three other studies,
Languard, Axelson and Proscea, to evaluate the potency factor derived from the Mancuso
study, and the Mancuso study was the lowest, which means those other studies were more
At least 36 other epidemiological studies of cancer among workers exposed to Chromium 6
have been reviewed extensively by IR. More than 30 of these studies showed elevated lung
cancer death rates. In at least 20 studies, lung cancer death rates were statistically
significantly elevated among workers, and the total are subsets of the cohort.
The five studies of cancer among -- okay. Well, I won't go there. Epidemiological
evidence of an association between occupational Chromium 6 exposure to lung cancer
mortality is found in other studies among workers in ferra-chromium industry, chromate
pigment production industry, chromate production industry and welders.
What is most striking about these studies is the consistency of the observed elevated
rates of lung cancer among Chromium 6 workers. The results of these studies are consistent
among the investigators and countries.
In 1984, EPA's health assessment document developed risk estimates based on a dose
response relationship for lung tumors. Such epidemiological data was sufficient for IR to
conclude that Chromium 6 is -- is a confirmed human carcinogen.
Okay. Let's see. Some industries in which cancer mortality has been reported are
chromium production, chrome pigment production, chrome plating, ferra-chromium and
welding. Some of the other compounds, chromium compounds, used are examples, calcium
chromate, batteries and steel, chromate trioxide in plating, ammonium dichromate in
dyeing, potassium chromate in textiles, potassium dichromate in pigments, wood
preservatives, sodium chromate in ink tanning of wood, sodium dichromate in chemicals,
bearing chromate in batteries, chromorage, pigments in paints, metal primers, lead
chromate, pigments for wood and metal, molybdenum, coatings, inks, strontium, chromate
paint, and zinc chromate paint varnishes.
Okay. That's -- that's just some of the background on hexavalent chromium. We -- okay.
This is -- as I said, we're shooting for late 1999 for our proposed rule. We are currently
working on a proposed rule. We're doing such things as updating our health effects
database, looking for recent studies, keeping up with the literature.
We're -- we developed health standards we developed from the health effects database.
We also developed what's known as quantitative risk assessment. We're updating our
quantitative risk assessment in light of the recent literature.
We are having further work done by way of research on the biological mechanisms of
hexavalent chromium toxicity. That's -- that's a project we're trying to get going with
NIOSH. We are -- we have been refining the sampling and analytical method. Periodically
have to keep checking with the Salt Lake Technical Center. I believe they're in the final
stages of that, and we're continuing to gather data on industries through site visits and
other efforts and regulatory analysis.
Okay. How all this relates to construction. We do -- we believe there is a pertinency
to the construction industry. We know that in a general sense, there are differences
between general industry and construction in a general sense, not necessarily in
hexavalent chromium, such as, you know, some of the things known as multi-employer work
sites, work locations that are fixed and transient or moving workforce.
However, as we develop the standard, in our efforts to develop the standard, we -- we
would like to know more of any special concerns in your industry. We think, you know, we
think that Chromium 6 exposure may occur during welding operations or cement work. We also
think that the primary health concerns may be irritative and allergic dermatosis.
However, you know, we're still investigating these things in our -- in our efforts. We
think that it would be -- before my time, there was a workgroup, and we'd like to know if
we could or think about having a workgroup again to help us. A workgroup did exist before
my involvement with the project. It would be helpful to have a workgroup of the committee
just to address special concerns of which we should become aware.
A workgroup also -- they could do several things. They could review a draft once we get
drafts ready in the package. We'd love to have a review when it's closer to the time or
there may be -- or a workgroup could also think of ways the standard -- to tailor the
standard to the needs of the construction activities.
Some of the issues that we're wrestling with, although we haven't made any decisions or
formulated anything, is should we have separate requirements tailored to construction
activities or should they be matched with general industry? If so, what should these
requirements look like? Are there some tasks where exposures would be high? In other
words, typical tasks or some task where exposures would be low, and could those tasks be
Are we correct in thinking that exposures to hexavalent chromium occur during welding
operations or cement work? And are we correct in thinking that the primary health concerns
are dermatosis? And, you know, are there other issues or other information of which we
should be aware pertaining to exposures, uses or potential hazards of hexavalent chromium
in construction activities?
That's -- that's basically all I have to say. Any questions or --
MR. BURKHAMMER: Any questions or comments for Jeff? Larry?
MR. EDGINTON: Jeff, I'm ashamed to say I don't know much about the subject, but as you
think about it in construction, my first reaction is it's very clear to me how it's
relevant to general industry.
As I think about it in construction, I guess what was going through my mind, and I
rather suspect the minds of many others sitting around this table, is where might we see
You've identified welding as possibly being one. I was thinking about it just in the
broad sense as I started walking through this, of what occupations might be affected? What
tasks are they performing which might result in any exposures? How do they get the
exposure? Is it the materials that they're using? Is it a combination of materials and the
tasks being performed?
I don't know the answers to any of that, by the way, but it seems to me that that's
sort of the -- the matrix that you want to be developing, and then my second thought was
as we think about promulgating a standard, if -- if it's true that in fact any exposure
presents a health risk, I'm wondering what do we know about EPA or other activity with
respect to regulating the use of it in products, because it sounds to me like it's -- it's
-- the fact that the material's contained in a product is the way that we get the
exposures, and maybe a standard's not the right way to go, if in fact we can eliminate the
I mean do we know what's going on in that regard?
MR. SNYDER: Okay. As far as operations or tasks, there was some preliminary effort on
the part of the team and -- and that effort's on-going, and I don't know -- the scope of
it hasn't been defined, but apparently chromium -- we think that chromium is contained in
materials or products, and, for example, welding operations, some steel, chromium might be
There was a dermatitis conference back awhile ago where they talked about cement and
concrete, and -- and the problems of chromium in concrete. There, the concern would be
dermatitis, allergic dermatitis.
That's -- but -- but -- but to get a good handle on this, we haven't gotten. We don't
have a good handle on this. The -- the construction activities seemed to be task-based, so
that there -- it's not easy to break jobs down. The information we get are by jobs.
Yeah. We're having the same problem, and -- and it -- you know, this -- this is more
work that -- that has to be done on our part, depending on what the resource -- you know,
as well as gaining information on general industry, because we're still doing that, and
there have been about 16 site visits.
Hopefully NIOSH is going to help us with more of -- more industry studies, but again it
depends on the money, it depends on -- on the scope of the work and so on and so forth.
So, this is something that I'm not directly involved with, but I try to keep up -- I'm
trying to keep up with, and as far as EPA is concerned, they -- they've had a number of
regulations. They've looked at water pollution and -- and things like that, effluent, and
we're aware of their activities, and we
-- yet what you're saying is that as they regulate products from an Environmental
Protection Agency concern, that will reduce the exposure to the public, but workplace
exposure, it depends on -- on how things are handled and how -- how materials are treated,
-- and another thing, too, is controls, you know, what types of controls.
I mean, you know, OSHA has certain policies and ways of doing things in 6(b) health
standards. Usually we, you know, -- for example, the use of personal protective equipment.
Those are OSHA policies, but we're still open to data and information with respect to
other kinds of controls and control technologies to -- to minimize chromium exposure.
If it -- if it -- you know, depending on what the extent of the hazard is.
MR. BURKHAMMER: Before we have some other comments, I think this is your second or
third visit to us on this subject.
MR. SNYDER: It's my first, but I have heard that -- that we have had other people here
on chromium, yes.
MR. BURKHAMMER: Well, I guess the other person that came after I spent about 15 minutes
chastising their presentation probably quit and hasn't come back. They stuck you with the
MR. SNYDER: Guess so.
MR. BURKHAMMER: But they made me acting chairman today. So, I have to be polite and
refined, and I can't on my own. So, maybe that's why they did that.
When -- when the first person came and discussed this, my comments were, as he went
through his presentation, it was a general industry standard being forced on construction.
Our research showed that there's a couple of situations in construction that this may
affect welding, would certainly be one, and painting might be another.
MR. SNYDER: Okay.
MR. BURKHAMMER: But other than that, we didn't see a whole lot of relationship of this
particular standard to construction, and now you're back again, and during your
presentation, I think I counted 27 we thinks.
We thinks is great. We think, too, and the problem is that we thinks don't constitute a
standard. Facts and studies and surveys constitute standards. I'm pleased that you did ask
for formation of a workgroup. I think this committee would like to have a workgroup on
this subject, and we'll address that later and certainly consider that, and I think that I
would like to see them review some of your drafts, which would be helpful, --
MR. SNYDER: Okay.
MR. BURKHAMMER: -- before you put them out on the street, and maybe we could help you
So, we do appreciate your asking for a workgroup.
MR. SNYDER: Okay.
MR. BUCHET: I did have a question, but I'm going to abbreviate it a great deal.
In the interest of finding facts, has anybody looked at -- and you gave us a list of
paints, varnishes, and I think wood preservatives, looked at the amount of wood products
that go into construction that are treated with chromium simply as a start to find out how
many there are, and then we may be able to find out who's cutting these materials or --
MR. SNYDER: Okay. I'll have to answer your question on wood preservations by deferring
it. I -- because I -- I think there has been some study on wood preservatives, but the
extent of that, I'm not sure, and I would have to -- I would have to find out.
I think they've done some work on wood preservatives and have determined that there may
not be a lot of hexavalent chromium exposure, but I'd have to check that with some of the
people there, and, you know, if you give me your name, card or whatever, I'll try to get
the contact person on the team who can -- who can help you with that.
MR. BURKHAMMER: Bob?
MR. MASTERSON: It's more of a comment than a question. I'm very concerned that they are
in the process of promulgating a standard, that they're looking at applying it towards
construction, and at this point, they're asking whether or not we have a problem with it.
I would think you would have to identify a problem first, then make a decision to
promulgate a standard to control it, and I think the cart is definitely before the horse
on this situation.
MR. BURKHAMMER: Duly noted. Mr. Cooper?
MR. COOPER: Just one question. Who's in charge of this project?
MR. SNYDER: Well, they made me the project coordinator, but we have a team.
MR. COOPER: Well, who's the point person? You?
MR. SNYDER: Yeah. I guess so.
MR. COOPER: Thank you.
MR. BURKHAMMER: Any other comments or questions for Jeff?
MR. RHOTEN: Just --
MR. BURKHAMMER: Mr. Rhoten?
MR. RHOTEN: Yes. Just one comment. I'm sure that we have a problem in our industry.
Okay. It's no secret. That's obvious, and I think the Center to Protect Workers' Rights
has done some studies on that, on exposure, on-site studies where the workers wear
monitors and those kind of things, and it seemed like that information's been laying there
for two-three years, and if you haven't got it, I'm sure --
MR. SNYDER: Oh, we're aware of that.
MR. RHOTEN: You're aware of it? Okay. That's my point.
MR. SNYDER: Yeah.
MR. RHOTEN: And then I think, too, if you -- if you get into the standard-making
process for general industry, I would think that our fabrication shops would fall under
the general industry standard. They do in regard to hearing standards and that kind of
But you're going to have to look at the welders out in the field and on job site places
that are not in fabrication shops, and it's going to take some -- some different
considerations to protect those guys who are not in the fabrication shop. I think that's
obvious anyway, but I think you need to look at that.
MR. BURKHAMMER: Yeah. That's an excellent point. Owen?
MR. SMITH: I just had a question. On cement, is -- is it in the cement itself or during
the process that they get contaminated?
MR. SNYDER: Okay. I -- I believe it's -- it's when it's used as concrete.
MR. SMITH: How would you control it?
MR. SNYDER: Well, okay. I can only bring up -- during the conference, there were some
people in other countries talking about ferra sulphate as a way of controlling chromium
exposure, but there were -- there were others -- other people who spoke and -- and cited
some of the problems with using that control technology.
One of -- so, -- so, one way to control it is the use of personal protective equipment,
gloves and garments and so on and so forth.
MR. BURKHAMMER: Bruce?
MR. SWANSON: Yes, Mr. Chairman. I'm sure that as the number of comments would indicate,
the panel is most appreciative of our continuing effort to keep you informed on what's
going on in OSHA.
Mr. Snyder is here to inform us and not to irritate you, as you might think.
MR. SNYDER: Yeah.
MR. SWANSON: Thank you, Jeff.
MR. SNYDER: Yeah. If I could just add, the -- the -- you know, the effort to -- to work
on a standard is -- is -- is -- it's -- it's a project in the directorate that's being
Again, so that we can do the best job for you, it would be good to have as much data as
we can get from -- from you all. We -- we -- we do -- we are making the efforts that we
can make to gather data -- data ourselves. So, again what the process will be, I can't
determine, except that we are supposed to develop the standard.
Again, we hope that -- so that the -- the needs of the industry will be met in the best
way possible, that we can get the maximum amount of help available.
MR. BURKHAMMER: We would certainly like to help you.
MR. SNYDER: Thank you.
MR. BURKHAMMER: Any other questions for Jeff?
MR. BURKHAMMER: Thank you, Jeff.
MR. SNYDER: Okay. Well, thank you.
MR. BURKHAMMER: At this time, I'd like to ask Mr. Cooper and Ms. Williams to give their
workgroup report on Sanitation, and if you'd be so kind to do that.
ACCSH Workgroup Reports
MR. COOPER: Thank you, Mr. Acting Chairman.
The minutes of the last meeting show Alan Rostonowski -- excuse me, gentlemen -- show
Ellen Rostonowski of the directorate bringing up two -- two concerns. One of women in
construction, had -- relates to health concerns, and also again an issue of sanitation and
decontamination in washing facilities.
This was not a new issue to this committee, and last year, we looked into the area of a
construction standard, improved standard for decontamination restroom and washing
Now, I must say this to get your attention on this issue. But in a year, the regulatory
agencies in most areas in Europe look upon their workers as a -- as an investment. In this
country, we look upon our workers as, my opinion, of course, as some barnyard animals. We
have construction workers without a place to wash after they use the restroom. So, to
many, this is a big issue.
Now let me report on our committee findings. Is Ellen here?
MR. BURKHAMMER: I'm sorry, Steve, she is not.
MR. COOPER: Okay. Ellen is our point woman on this issue in construction, and we had a
meeting last week in which she did an excellent job incidentally.
The participants on that committee, which is open to the public, were three
participants from the group/associations that represent manufacturers of the -- of
equipment relating to this issue. Chris Trehorn was -- was at the meeting last week. She's
in the audience from the Center to Protect Workers' Rights. Myself, a committee member,
Jane Williams to my left, a committee member, Larry Edginton further to my left, a
committee member, and we went through the existing general industry standard.
We went through the construction standard. We went through all the many numerous
responses from OSHA, from NIOSH, interpretations, etc., and came up with a rough draft.
This rough draft we are not prepared to give to the committee yet. We need one more
meeting to finalize it. We will give it to the chairman, and the chairman can distribute
the findings of the workgroup.
I will point out to you that the findings of the committee in short is that we feel
that every American worker on the job site should have a place to go to the restroom and a
place to wash. It doesn't make any difference if there's a 100,000 people on that job or
one. I guess you could say welcome to the new millennium. Should have been done a long
It is difficult to see how one can speak up against this issue. I think you're all
aware of the -- my -- my attitude on this issue, but we have -- and we can do this shortly
because I've taken up all the time already, Mr. Chairman.
Let me refer to Jane and Larry on this issue.
MS. WILLIAMS: In our meeting, we quickly agreed among us that the key issue was
sanitation and accessibility, and that if we address those two issues, they certainly
would be representative of the primary concerns of both my research and Mr. Edginton's
research among female workers.
We felt very comfortable with the results of this meeting. We do have some verbiage to
work out appropriately, and that's why we're looking forward to the next meeting, to be
able to produce the appropriate document for you to review.
MR. EDGINTON: I think I would just like to second both what Stephen and Jane had to
say. I think that of all the workgroup members, there was a consensus that, you know, this
is the human decency issue, is that every worker regardless of where they work in this
country ought to have a place to wash their hands, and we have figured out how to do that
in this country for every class of worker but for construction workers, and we think it's
As Jane said, we think it's of importance to all workers, but in particular it's a
growing concern for the -- the increasing numbers of women entering the trades. They've
really been on our case about this. They're right about it, and it's time that we move on
We recognize that there may be some practical difficulties in its implementation, but
nothing that we don't think can be overcome with good faith efforts. We hope to have
something by, I guess, the next meeting.
MR. BURKHAMMER: Thank you for that report.
MR. COOPER: Mr. Chairman, that concludes our report. However, I'd like to point out
that we have checked, and one of the reasons we're not giving you our final report is
we're getting additional information from the industry on the economics of providing a
particular type of equipment and availability.
We would request, Mr. Chairman, that this topic be required to be reported on at our
next meeting by this committee, and again we will provide our proposed draft to the other
members of the committee and OSHA.
MR. BURKHAMMER: Thank you. I assume that your workgroup has copies of the documents
that were mailed out to us in our pre-packet. The letter to Assistant Secretary Jeffress
from Glen Creno, the 1926.51 sanitation proposed standard, the field sanitation final rule
in 1928, and the three-four documents that came. Did you all get that? You've taken that
MR. COOPER: Yes.
MR. BURKHAMMER: Any questions of the workgroup?
MR. BURKHAMMER: Okay. Thank you very much.
MR. COOPER: Thank you.
MR. BURKHAMMER: I will, with Mr. Rhoten's concurrence, give you the short synopsis of
Steve Cloutier's Confined Space report, and, Bill, please feel free to join in.
MR. BURKHAMMER: The Confined Space Task Force Workgroup met. Some stakeholders were
present. Bruce Swanson was present. They prepared and looked at some comments that were
presented to the workgroup. They restructured some of those comments. They also took a
look at the 1910-1926 drafts. They had some thoughts and ideas concerning those drafts,
and they've submitted some wording back through OSHA for review and consideration.
They plan on having another workgroup meeting within 90 days prior to the next ACCSH
meeting to finalize their documentation and provide a full report to the committee at that
Do you concur with that?
MR. RHOTEN: Yes, sir.
MS. WILLIAMS: Mr. Chairman?
MR. BURKHAMMER: Yes?
MS. WILLIAMS: Has that draft on confined space changed from its original issue of two
MR. RHOTEN: The draft that we submitted?
MS. WILLIAMS: Yes.
MR. RHOTEN: I think the draft that we submitted is still there, except there's been a
side-by-side comparison and some suggestions on where possibly there's some conflict.
MS. WILLIAMS: Thank you.
MR. RHOTEN: But --
MR. BURKHAMMER: One of the things Steve indicated was that they went through those
conflicts and tried to resolve some of the issues, but he said there weren't a whole lot.
Okay? That takes care of the Confined Space report.
With that, we'll move on or we can take a drink. Why don't we take a break until 10:35,
and then we'll come back with Loretta Schuman's presentation on Crystalline Silica?
(Whereupon, a recess was taken.)
MR. BURKHAMMER: We're ready to continue the ACCSH session. Our first presenter is
Loretta Schuman, who's going to make -- give us a presentation on Crystalline Silica.
|Crystalline Silica - Standards Development
MS. SCHUMAN: Hello. My name is Loretta Schuman. I'm with the Directorate of Health
Standards Programs here at OSHA, and I'm the project officer for the standard for
occupational exposure to crystalline silica.
Now most of you may know these things, but I'm just going to give a little brief review
about silica and some of its health hazards and the people who are exposed.
We estimate there are about two million U.S. workers exposed to crystalline silica, and
that includes about 100,000 in high-risk jobs, including sand-blasters, foundry workers,
stonecutters, rock drillers, quarry workers, and tunnelers, and, of course, a lot of these
are construction workers.
This is the current OSHA standard. I have it over here for general industry. For
construction, as you may know, it's sort of the same but not really. That's another story.
But -- so, we can -- essentially the PEL for crystalline silica is 10 milligrams per cubic
meter over percent silica plus two for respirable dust, and for total dust, it's 30
milligrams per cubic meter over percent silica plus two.
So, what does that -- what does that actually look like? What does that look like?
Well, for the sports challenged, this is a football field. This is
-- this is Mountaineer Field for West Virginia University in Morgantown, West Virginia,
and I have NIOSH to thank for this slide.
Now if you take about two teaspoonfuls or about the weight of two pennies full of
silica, and you throw it out on to the -- on to the field, and you evenly disburse that
silica around the field, and let's say the field is enclosed in glass like this one is,
well, you cannot play on that field for eight hours without being over-exposed to the OSHA
PEL for crystalline silica. So, you actually wouldn't be able to see that silica, and yet
you'd be over-exposed to the current PEL. So, that's not very much.
A couple of people at OSHA several years ago did a study of the percent of people who
were above and below exposed -- above and below the PEL, and this was based on data from
It was found that there were approximately 48 percent of the inspected were above the
PEL and 52 were below. So, it's about half and half.
Well, what happens when you're exposed to silica? What are some of the possible health
hazards? There are a number of diseases that can occur, including lung disease, silicosis,
cancer, some immune diseases, tuberculosis, kidney disease, but today, I'm going to talk
about a couple of the more well-known diseases, silicosis and lung cancer.
Silicosis is a disabling and potentially fatal lung disease which essentially is
scarring -- scarring of the lungs till you can't -- it gets so bad that you can't breathe.
Silicosis deaths are still occurring in the U.S. today. There are three different types of
The acute form develops when workers are exposed to the highest concentrations of
silica, and this can develop in as few as -- few weeks. Then there's the accelerated form
of silicosis which is high concentrations but not the very highest, and that can develop
in five to 10 years of exposure, and, finally, there's the chronic form in which people
are exposed to relatively low concentrations, and in this case, silicosis can develop
after 10 or more years of exposure.
There are currently about 300 deaths per year that are reported from silicosis in the
U.S., but we think this is probably a very low estimate because probably a lot of cases
are just not reported. So, we think it's -- it's definitely an under-estimate.
Two scientists at NIOSH did a study of a group of workers exposed to silica and their
risk of silicosis, and they looked -- on the bottom line there, it's cumulative silica
exposure, and what they did was they looked at if you were exposed to certain
concentrations of silica for 45 years or working lifetime, what is your, on the left-hand
side there, the percent risk of silicosis? And if you just look at the middle bar there,
these researchers found that at the current OSHA permissible exposure limit, if it -- a
group of workers was exposed to that amount of exposure at the OSHA PEL for 45 years or
working lifetime, in about 47 percent of the workers would get silicosis. That's 47 out of
100 workers would get silicosis at the OSHA PEL for 45 years exposure. The research has
concluded that the current OSHA PEL was too high.
One of the -- the other health hazard that I'm going to talk about today is lung
cancer, and several -- there are a number of studies that have demonstrated statistically
significant dose-related exposure-related increase in lung cancer.
Some of the studies have looked at pottery workers who are exposed to very low levels,
tin miners in China, South African gold miners in which they found that there was a
synergism with smoking. In other words, you got some cancer with silica, some with
smoking, but if you put the two together, you got more than two plus two equals four. You
got two plus two equals something else like maybe seven or eight. So, it's that synergism.
In the diatomaceous earth industry, the authors concluded that there was a causal
relationship. In other words, exposure to silica definitely was a thing in these workers
that was causing lung cancer.
So, based on many of these factors and others, OSHA decided that we would begin the
development of a comprehensive standard for crystalline silica.
Now as -- as -- as you probably know, with most of our comprehensive standards, it
would include a number of provisions, in addition to the permissible exposure limit, which
is currently all we have for silica, just the permissible exposure limit. This
comprehensive standard would include provisions, such as product substitution, engineering
controls, respiratory protection, medical screening, medical surveillance, and training
Okay. We -- no. That's it. Yeah. That's it. So, we hope to -- where the standard is
currently under development, we've -- we've formed the team several months ago, and we've
been working on the standard.
We currently anticipate that the standard will be -- the proposed rule will be
published in the Federal Register in the year 2000. One of the things we're going to be
doing as a result of the -- of going through the standard development process, of course,
is we'll be doing a risk assessment to determine whether we need to lower the permissible
exposure limit, and based on what we determined what the permissible exposure limit should
be, we have to determine whether that limit is technically feasible, whether there are
engineering controls available or can be developed to -- to come down to that level, and
also whether it's economically feasible, as you know, whether it will be cost effective to
do this, and, so, based on that, I'm also -- I'd like to conclude my presentation with a
In order to determine the technical and economic feasibility, OSHA needs to do site
visits or needs to go out and look at work places and to determine whether what the
current exposure levels are, also what current engineering controls are available, and to
determine the economic and technical feasibility.
So, this is a request for those of you in the industry, in the construction industry
particularly. We really do need cooperation to send our teams out and do this -- do these
Now as you know, it's totally separate from
-- from compliance or anything. So, this is just our
-- our -- our own research. So, I'm calling -- I'm asking if -- if any of you would --
would come forward and -- and allow us to visit your sites, we would greatly appreciate
it. It would really help us in the development of the standard.
Thank you, and I'll take any questions you have.
MR. BURKHAMMER: Any questions from the committee? Owen?
MR. SMITH: With respect to the 45 years, does that anticipate that the person's working
at the same level, exposure level for 45 years, five days a week, 52 weeks a year, to
reach that level?
MS. SCHUMAN: Essentially, it does. I mean it takes -- it's a -- you know, it's exposure
to like a time-weighted average, which most of our permissible exposure limits are. So,
that would be -- you know, it wouldn't be necessarily always at the permissible exposure
-- you know, exactly at that level, but, you know, it would be a weighted average that it
would be at that level over that amount of time, you know, taking into account probably
for vacations. I'm sure they'd calculate that in.
MR. BURKHAMMER: Are you aware that there's a study being done at the Boston Central
Artery by UMASS-Lowell on silica?
MS. SCHUMAN: Excuse me. I can't really hear you.
MR. BURKHAMMER: The -- there is a study currently being done and has been underway for
over a year by UMASS-Lowell on silica at the Boston Central Artery Project.
MS. SCHUMAN: Oh, yes, I am aware of that, and hopefully we may be able to get some
information from them.
MR. BURKHAMMER: Okay. Any other questions?
MR. EDGINTON: With respect to the idea of product substitution, is OSHA thinking about
that in terms of making recommendations in regard to product substitution or are you
thinking about simply proposing to eliminate the use of certain products or both?
MS. SCHUMAN: Well, we have -- we have gotten requests. People who think that it would
be a good idea if we were to restrict the use of, for instance, the use of silica sand for
MR. EDGINTON: That's exactly one of the examples I was thinking of.
MS. SCHUMAN: Right. And then -- and we certainly are taking that under consideration,
and we haven't made any final decisions, and we probably won't for awhile, but that's --
that's one of the examples of things that we would consider.
MR. EDGINTON: Would you see that as -- do you see that as a part of the silica
rulemaking process or would you see that as something on its own?
MS. SCHUMAN: Well, at this time, I would see the consideration of that would be under
the scope of the silica standard.
MR. SMITH: With respect to the rules that already are in effect, you know, about the
sand-blasting, you know, guy puts a hood on, and he's -- he's got air, he's got air, how
does he get the silica?
MS. SCHUMAN: Well, probably a lot of times those -- I'm not -- I'm not an expert on --
on sand-blasting or, you know, on sand-blasting hoods, but I think probably sometimes
there's still over-exposure with those hoods, and a lot of times, they don't even
-- they're not used or they're not maintained properly.
MR. SMITH: But you gotta -- you know, you have air going out all the time. It's blowing
everything out. Unless people aren't using them.
MR. BURKHAMMER: Michael?
MR. BUCHET: The slide you had that showed 48 percent exposure above the PEL, 52 below
the PEL, is that for construction or what portion of it shows construction workers or what
construction workers or any construction workers?
MS. SCHUMAN: I'm not sure, to tell you the truth, whether that -- whether that covers
construction or -- I know it covers general industry. I'm not sure whether it covers --
what percentage covers construction or whether it does. It probably does.
MR. BUCHET: Can you find out?
MS. SCHUMAN: Sure.
MR. BURKHAMMER: Any other comments or questions for Loretta?
MR. BURKHAMMER: Thank you very much.
MR. COOPER: Mr. Chairman, probably the three greatest things in the country, probably
the invention of the screen door (1), business expense accounts are another, and air
conditioning is probably the third, and as relates to weather, as we all know, the
conditions on job sites throughout the country, we work in extreme heat, and you want to
worry about the -- what's going to happen in the next few decades, you can -- you can.
However, what is -- is OSHA doing anything on heat stress? I mean pushing the issue
further due to the type of weather we've been having?
MR. SWANSON: Yeah. We are , and it's my understanding that -- that our tech support
office has something current. It seems to be a subject this week around the country. Maybe
we could get -- try and get someone in here this afternoon to handle this better than I
can do it off the cuff, Steve, and make a presentation, if we've got time. Can we work in
a short presentation this afternoon?
MR. BURKHAMMER: I think we can work that in.
MR. COOPER: Thank you.
MR. MASTERSON: I know they are working on it because they've contacted me on several
occasions. I know they are working on some heat issues because they've contacted me a
couple of times already on some of the things we've been doing.
MR. BURKHAMMER: We have that on our agenda for 3:00, right after the break at 3:00.
Also add to your agendas Berrien Zettler at 1:00 along with talking about OSHA's
Strategic Plan. We've asked him to update us on the recordkeeping report and recordkeeping
standard, and also update us on the ergonomics standards. So, he will do that all
collectively in his 1:00 presentation.
Also tomorrow, around the break in the morning, we're going to have a presentation on
the travel procedures for the advisory committee. So, add that to your agenda, also.
If we're now ready, we'd like to hear the Status of Data Collection on OSHA's Updated
Form 170. Mark Hagemann is prepared to make that presentation.
Status of Data Collection on OSHA's Updated Form 170
MR. HAGEMANN: Good morning. My name is Mark Hagemann. I work in the Office of Standards
and Compliance in the Directorate of Construction, and for the first report, I'm filling
in for John Franklin, who is our statistics guy in the directorate, and I'm going to give
you a real quick update on the new data collection project we're working on, and for a
little bit of background, during the SENRAC negotiations, the SENRAC Committee and OSHA
staff both analyzed OSHA's accident fatality data, and SENRAC found it to be a little
lacking in some detail.
So, in their recommendations, along with their recommendations for a revised standard,
they recommended that OSHA look into improving their data collection.
OSHA did agree to do that, and we have since developed and implemented an enhanced
coding system which is used by the OSHA compliance officers when recording construction
fatality catastrophe investigations for entry into the IMAS System.
This new system was implemented on January 1st, 1997. So, the data that we are now
getting into the system will provide more detailed information indicating how and -- and
where the construction fatalities are occurring, and give much more detail as to what the
workers were doing, what type of structure they were on, and -- and some of that -- causes
and things like that.
So, the data has been going into the system for about 18 months now, and our
information IT department is in the process of developing a program to extract that data
out of the system in a usable form where OSHA can -- can evaluate it and determine what's
going on out there and where the problems are.
That is expected to be -- that program is expected to be completed by the end of this
fiscal year, and the University of Tennessee has been contracted to analyze the raw data
for -- for the calendar year 1997 and develop a report by the Spring of next year covering
all of construction. So, hopefully that report will be a detailed report using the new
information and the new system and that will show some progress as far as our -- our data
That's about all I have on that. If you have any questions. I don't know how much
detail I can get into. John is our statistics guy, but I'll -- I'll answer anything I can.
MR. BURKHAMMER: When we first -- when ACCSH first heard about this, we put together a
data collection work group that at the time was chaired by Annamaria Sorio, and she pulled
together a tremendous amount of information and made several presentations to ACCSH, and
one of the concerns was in gathering the fatality data. Was it going to be lumped into one
general all construction category or was it going to be broken out into heavy
construction, specialized construction, general construction, building construction,
So, it did a feel for what facet of construction the fatalities were occurring in. Do
you have an idea of where we are on that?
MR. HAGEMANN: Yeah. From what I gather in the new form, it -- it will get into
identifying the end use type of the construction, what the site was, and there's a list
of, looks like, about 15 or so different categories. So, that's one of the questions that
the compliance officer will have to fill in, whether it's commercial building, a
manufacturing plant, a refinery, power plant, highway, road, bridge. So, that will -- we
will get more detail on -- on the actual type of -- of facility or type of structure it
MR. BURKHAMMER: With the University of Tennessee analyzing the data, what -- what do
you expect to get back from it?
MR. HAGEMANN: I -- I don't really know because I -- I haven't been involved in -- in
contracting with them and defining what their product's going to be.
MR. SWANSON: Mr. Chairman, what -- what we are -- are looking for is a far more finite
breakdown on -- on fatalities. Injuries, also, but let's stick with fatalities, is to --
you know, where with some specificity it occurred within the construction industry, what
was -- what was unique about that occurrence, what -- what SIC, what status of the job,
geographically, what time of year, and so that OSHA can within itself take a look at -- at
what -- what tools, what resources that we have are we applying to various sections of the
construction industry, and is there room for improvement in that resource application?
That really is what's at -- at bottom at all this, and whether we're going to be able
to attain that nirvana or not, I don't know, but --
MR. BURKHAMMER: How -- how are we going to survey the state plan states?
MR. SWANSON: State plan states are at the moment not a part of this, and we all
understand that there are fatalities in the construction industry in -- in the state plan
states as well as federal jurisdiction states, but if we can -- if we can handle the
survey, we -- we welcome any state plan state that wishes to -- to join us on this, but
we're going to be unable to push them into it if they don't wish to expend money on it.
What the survey results will, I think, still have some veracity based on -- on half of
the construction industry, and then we -- we get our aggregate answers, we can still do
the analysis and what tools should be applied and etc.
It will still have applicability in those state plan states, but we're unable to force
them into it.
MR. BURKHAMMER: One of -- one of the big issues we uncovered in Annamaria's workgroup
was the differences between the National Safety Council reporting X number of fatalities
in the construction industry per year versus OSHA reporting half or less of that. The
state plan states have fatality data that can be collected, and we can combine all that
into one with, I would think, not too much effort.
They do publish their own data on fatalities in those states. So, if you could make a
note of asking the state plan states to provide the data, they should be willing to do so.
MR. SWANSON: Fortunately for you, you have a state plan state here, Mr. Chairman.
MR. BURKHAMMER: I know that.
MR. EVANS: Well, one comment I'd like to make about that, I don't know that the form
that you guys use is any different from what we use now for investigation of fatalities,
but all that information is entered into the IMAS program. So, I would imagine it would be
I'm not sure it's as detailed, though, with the changes that need to be made, but I
can't imagine any of the state plans that wouldn't want to go along with that if it could
better identify where the fatalities are taking place.
MR. BURKHAMMER: That would certainly be helpful to the overall value of the data when
it comes out.
MR. COOPER: This is not just another report. This is a very, very important report.
With your permission, Mr. Chairman, I think that the committee should have a copy of some
blank 170s, if you can provide that, and there's been a lot of work in this area. Without
this -- this data, it's very difficult to form a real conclusion.
As was mentioned just a moment ago about National Safety Council data, insurance
companies have their data. The feds have their data. We have evaluated 10 years of
fatalities in construction in the United States, and we reviewed each and every fatality
reported to OSHA over 10 years.
The -- the data was skimpy, and it was in the eye of the beholder, which in this case
was the compliance officer, and if an individual fell, in some cases we didn't know how
far, what from, what occurred.
The chairman brings up an important issue about state plans. That's half of the group,
and I know, Danny, that in your state, you guys do a pretty good job, but in some states,
they don't have this type of information.
It would be helpful, maybe not possible, but helpful if we had one standard form, and I
realize maybe OSHA can't push that to the states that easily, but the data we're looking
for has a lot of variations to it. Time of day, weather conditions, etc., and if some
state did not have that, we -- you know, we -- how can the University of Tennessee come up
with a report? Are they going to evaluate federal information?
Again, I don't think the chairman said this. So, I guess I will, but he was leaning on
it. I -- I realize how these grants go, but I certainly hope the University of Tennessee
or any other university knows how to evaluate this data, other than accounting aspect.
MR. EVANS: Mr. Chairman, one question I have. Does anyone know if the information
that's gathered on the new form indicates how long the individuals have been on that
The reason I ask that question is that in the last couple years in Nevada, we've had a
number of accidents that were fatalities, where it was the first day the fellow was on the
job. I just wondered if that's something that they look at.
Along with that, though, Bruce, if -- if you'd like, the Board of Directors for the
ASHPA group, which is the state and plan association, is meeting August 4th and 5th, I
believe it is, in Salt Lake City. Maybe if someone from your group are going to have a
meeting, a joint meeting with the federal steering committee, maybe they could -- somebody
from your group could show up and make a presentation on that to the Board of Directors,
and maybe something that could be discussed at the next general meeting of the ASHPA
MR. SWANSON: Thank you for the invitation.
MR. EVANS: I can't imagine that they wouldn't accept it.
MR. BUCHET: Mr. Chairman, along with the request Mr. Cooper made for the form, can we
look at these new coding items? The form is one part of it, but if we don't know what's
being captured in the way of place or the end use of the project, then we're still left a
little bit in the dark.
MR. BURKHAMMER: That's a good point.
MR. HAGEMANN: Yeah. We can --
MR. BURKHAMMER: Mark?
MR. HAGEMANN: We can provide copies of the form, and it goes into -- into some detail
on activities. As far as I can tell, it doesn't get into the length of -- of employment of
the -- of the worker.
MR. EVANS: That could be very helpful in showing that possibly these people aren't
properly trained before they actually put them out there to work.
MR. HAGEMANN: Well, those -- I guess those type of things are -- can be added to the
form as we -- as we evaluate it and determine, you know, how effective it is.
MR. EVANS: Also, a few years ago, we did a little study in Nevada on -- when they were
in the last stages of completing a project, like a major hotel casino, that we were having
built. When they get down to their final days, they seem to push a little harder because
they want to meet all of their deadlines of completion, so they don't have to get into the
-- I guess they have to pay some penalties if they go over their time frame. That might be
another question to show where they're not -- that is in place, and whether or not they're
in that time frame, whether they're pushing the project.
MR. HAGEMANN: I imagine that would probably be difficult to capture. I don't -- I don't
-- I don't know how a compliance officer would determine if they're at their rush stage of
a job, and they're being pressed by penalties.
MR. EVANS: All you'd have to do is ask the general contractor, how close are you to the
opening date, and is there a -- a penalty assessed to the subs or the general if they
don't have it done by a certain date.
MR. BURKHAMMER: In most lump sum turnkey contracts, there's penalties for delays, and
there's awards for early completions. It would be pretty easy to find out.
MR. EVANS: I would think so.
MR. SWANSON: Any suggestions that this committee has would certainly be welcomed and
will be reviewed.
MR. BURKHAMMER: If we could get a copy of the form maybe before lunch or right after
lunch, the committee would have today to look at it and maybe we could offer some comments
back to you before we leave.
MR. RHOTEN: Just a question. At the present time, if there's a fatality on the job,
when it's investigated, does the question arise on safety training, how much safety
training the victim might have had on all cases?
MR. SWANSON: Yes.
MR. RHOTEN: So, that information would be -- would be easy enough to gather?
MR. SWANSON: All -- all of the -- all of the comments that have been made are -- those
are questions and -- and elicit information that is already part of a competent accident
The issue is not whether or not OSHA is gathering that information. The issue is
reducing it to a machine-readable, you know, form.
MR. RHOTEN: Yeah. And I would just suggest if that would be as important a piece of
information that we could get out of the whole survey, probably the length of time the
person's been on the job was mentioned, and the amount of safety training that the person
had. I personally believe that's the major problem we have in the construction industry.
MR. BURKHAMMER: Michael, is the data collection workgroup working with Mark and --
MR. BUCHET: Yes.
MR. SWANSON: And we'll all solve all of this, I'm sure.
MR. BURKHAMMER: Any other comments or questions on this issue of Mark?
MR. BURKHAMMER: All right. If you would now like to go on into the presentation on
negotiated rulemaking, SENRAC and steel erection?
OSHA Standards Development Progress Report
Steel Erection Negotiated Rulemaking
Advisory Committee (SENRAC)
MR. HAGEMANN: Okay. What I'm going to do real quickly is just update the committee on
-- on where the steel erection proposal stands.
The proposal was sent to OMB on May 7th for review. We have had discussions with OMB
during that time period. They've provided us some input on the proposal, and we understand
that they're very close to -- we're very close to getting their approval on the document.
There is one outstanding issue that we're -- we're in the process of resolving with
them, and that is the OMB's insistence that we provide a means for electronic comments on
the proposed rule. This is something that OSHA hasn't done before. We're looking into it.
We're trying to work out the technical details with our Docket Office on that, and once we
resolve that, then we should be -- we should be real close to getting this thing proposed.
We're still targeting possibly the end of July or early August for the proposal to be
published in the Federal Register.
Again, that -- it's hard to pinpoint it without knowing the outcome of this -- this
final issue with OMB, and that's -- that's basically where we stand.
If -- if -- if anybody has any questions, I'll be glad to -- glad to answer any
questions on any aspect of -- of the proposal or the negotiations of anything.
MR. BURKHAMMER: There was a published report that Mr. Cooper shared with me, and maybe
you could read the part of that that you and I highlighted there about the year 2000. The
form of a question.
MR. COOPER: Mr. Chairman, and Mark, in the article here recently that -- where they,
they being OSHA, is looking for a final rule in the year 2000.
Can you comment on that?
MR. HAGEMANN: Again, it's hard to predict when we would be able to get a final rule
out. Generally, we say it takes at least a year after the proposal goes out to get a final
rule. That depends on the record that's developed during the comment period and the
hearing, and -- and -- and how much time it takes to evaluate that record and put together
the final rule.
So, it's -- it's -- at this point, it's -- it's hard to say exactly when we would be
able to get a final rule out.
MR. BURKHAMMER: The purpose of negotiated rulemaking, as I understand it, is to
minimize, so to speak, the public comment because the public participate in the negotiated
rulemaking in a lot of arenas, participating in the -- so, I would think -- and that's the
28th, I think, -- that it should go fairly quickly because it's had a pretty widespread
distribution over the last five years.
So, hopefully the normal comment periods and the number of comments that are received
would not be that voluminous.
MR. HAGEMANN: That's what we would hope for, yeah.
MR. COOPER: I have something interesting to report in that area. As some of you know,
the decking people who call themselves the Steel Coalition reached agreement with the
SENRAC Committee that there'd be a five-year moratorium and study to word "slip
resistance in roof and floor decking". That committee is a very large committee. It
met. I'm chairman of that committee for SENRAC workgroup, and we met last week, and there
was 17 representatives from the steel industry which includes the coating people, the
manufacturers of -- of decking, the entire steel industry, and we reached a tentative
They did a yearlong study to some large expense at UCLA, I believe that was the
university in that area, as relates to the problem of slip resistance on deck -- roof and
They finalized Phase 1 of their report, but the interesting part is there is a
commitment from the representatives of the Steel Coalition which is a very large group to
study the discontinuation of benzene oil on decking to be replaced by a worker-friendly
substance to reduce the propensity of slips on floor and roof decking, and that was
reached last week. That's a very important issue.
Second commitment by the Steel Coalition in response to the SENRAC Committee was to
study through research and development methods to increase slip resistance in floor and
roof decking by following these: acid etching, embossing, dimpling, and new types of
coating on floor and roof deck and their application.
So, I can only speak for myself and SENRAC, but I feel that we are progressing in a
good manner with the Steel Coalition on this issue.
Thank you, Mr. Chairman.
MR. BURKHAMMER: Thank you for that. Anything further? Yes?
QUESTION: Can you say again what kind of oil you're talking about discontinuing?
MR. COOPER: Benzene oil.
MR. BURKHAMMER: Any other committee members have any comments or questions for Mark on
MR. BURKHAMMER: Thank you.
The next presentation will be Bob Pitulej and OSHA Reinvention.
MR. PITULEJ: I guess I should start off by saying that by looking at the agenda, I
fully realize that I am what's blocking everybody from going to lunch. So, just so
everybody knows this, as I look at folks, it seems as though they've had a long morning.
I'm going to try to be brief. I've got just one cover slide and four other slides, and
just to let you know that I'll be available after I'm done with this if anybody wanted to
talk about one-on-one issues.
Next slide, please, Jim. What I just want to talk about briefly was a project that the
agency is working on that deals with the field. What we've been trying to do is to work
with the 67 federal area offices throughout the agency and see if we could find a way to
try to make them work a little bit better for -- for both the agency and for the American
worker and for employers, also.
And these are just the goals of what we're trying to accomplish with the revamped OSHA
field office, reduced workplace injuries, illness and deaths, improve the quality and
timeliness for the delivery of this service. Can we find ways to get there quicker,
respond better to complaints? Develop a capacity to pro-actively solve problems. That's
something that we're really working -- what would be relevant, I guess, for -- for this
group assembled, is there are several projects that focus on the construction industry, in
We're trying to focus more on the worst actors and hazards, and we're trying to
increase the types of compliance assistance. While enforcement remains a core principle of
the agency, we are trying to look at some other ways to see if we can work with individual
work sites, employers and employees, associations and unions to try to get things
Next slide, please.
MR. COOPER: Can I comment on that last slide?
MR. PITULEJ: Sure.
MR. COOPER: On Number 4, when you say focus on the worst actors, you mean externally?
MR. PITULEJ: No. Actually, our theory is to try to focus on both the internal ones and
the external ones. I guess we're having a hard time categorizing which ones are which.
MR. COOPER: And -- and how does OSHA -- a serious question. On Number 1, on reducing
work place injuries, illness, and deaths, and I realize that's a mandate, but how do you
-- and this is a trick question. So, be ready.
MR. PITULEJ: Okay.
MR. COOPER: How do you -- how do you plan on doing that when you don't control the
workers or the workplace or the --
MR. PITULEJ: Well, the plan that the agency has put together is sort of explained in
the agency's Strategic Plan, and it's sort of a trick -- not a trick answer, but this
afternoon, some of the folks will be covering the agency's Strategic Plan.
I'm just going to touch a little bit about it in this brief presentation, but the
agency has put together a strategic plan with three overall goals and several goals
underneath it, and that would be the overall answer on how we're planning to attack that
Next slide. Just to let you know again we're focusing. We've got 37 of the 67 federal
offices transitioned to this new model. We have 30 offices remaining. Our goal is to get
those accomplished by September 30th of 1999.
A quick understanding of how this happened. The union management partnership team of
folks within OSHA and some outside consultants developed a model. The second phase of that
was a national level implementation driven by Washington, D.C., and now we're in Phase 3
of the regional implementation where local-regional administrators and their -- and their
staffs are putting the rest of the model in place through the year 1999.
If anybody has any questions about the model or what we're doing, I've got a brochure
here. If we need more copies, if anybody wants to grab that, I won't bore everybody with
that information, but it sort of outlines what we're trying to accomplish and where we're
heading with that.
Next slide. Again, sort of answering a little bit of -- I think Mr. Cooper's question
is the linkage between what we're doing and the agency's Strategic Plan, which will be
covered a bit this afternoon, and, so, -- and the rest of the -- during the rest of the
What we're looking to do is to align the agency around the Strategic Plan. This is --
everybody -- I don't know if everyone's familiar with GPRA, the Government Performance and
Results Act. Something the agency has put a lot of resources in, and this is where all the
directorates have been instructed to try to put some of their -- to put their resources
So, I just wanted to explain quickly the link -- the next slide, please, Jim. The link
between what we're doing in reinvention and the Strategic Plan.
The local area offices are going to be responsible for delivering those goals or some
of the requirements that we have in our Strategic Plan, and then the Strategic Plan is a
five-year plan. The performance plan is merely a one-year subpart of that overall plan,
just for clarification.
And what we -- what we're doing with reinvention is allowing area offices to develop
some local initiatives to play a key role in accomplishing some of these, and we -- we
offer some tools to the area offices, projects such as problem-solving and breakthrough
Of interest to this group is many of those projects are focused on construction.
Throughout the country, many of the area offices work in tandem with local associations.
We have one project where there's a memorandum of understanding among three state agencies
on how -- so we're not duplicating efforts in dealing with the business world and stuff.
So, we've got many of these throughout the country, and construction remains a large
focus in these -- in these individual things, and what we're trying to do through
reinvention is allow the area offices and the regional offices to use their expertise
within their jurisdictions to know where some of the larger problems are and allow them
some freedom and some tools to develop some local initiatives to work with that.
Sometimes a national-based approach, while useful in being consistent, does not address
the problem in each particular jurisdiction. So, that's what we're trying to do, and again
many of those individual projects or local area projects deal with construction issues.
That's all I have, unless there's anything else.
MR. SWANSON: Just a postscript to that, Mr. Cooper. The -- the local initiatives are --
and why it's so heavily concentrated in -- in construction is an attempt to solve some of
our historic targeting problems that we've had rather than continue to use exclusively the
national program with reports and University of Tennessee.
MR. BURKHAMMER: What we are handing out is a copy of the 170 form for us to look at and
review and comment on.
Bob, would it be possible to get a list of the 37 offices that have been converted to
supply to the committee?
MR. PITULEJ: Yes, absolutely.
MR. BURKHAMMER: Okay. Thank you.
All right. Before lunch, we -- there was a conflict in the schedule for the Heat Stress
presentation at 3:00. So, we're going to hear it now with Elise Handelman. She's prepared
to come forward and talk about Mr. Cooper's request on heat stress.
MS. HANDELMAN: Good morning. Being the last speaker before lunch is almost as bad as
being the first speaker after lunch. I don't know which is worse.
But thank you for inviting me to take a few minutes of time to tell you about a project
our office has been working on. I haven't been to your meeting before formally. So, let me
introduce myself. My name is Elise Handelman. I'm the Director of the Office of
Occupational Health Nursing, and let me tell you where we live in OSHA. We live in the
Directorate of Technical Support. We're one of the directorates just like the Directorate
of Construction or the Directorate of Health Standards. There's also a Directorate of
Technical Support, and my office is in the Directorate of Technical Support.
Each summer, we bring in -- during the year, we bring in usually about six occupational
health nurses who come into the agency to work on special projects, and we were really
lucky this year to get someone who I thought was really highly qualified, and her name was
Patricia Louie, and she went by Trice, and Trice worked for us for eight weeks on issues
related to heat stress, particularly in construction.
She came to us with a Master's degree in education. She's finishing up an MPH at the
University of North Carolina and has about 10 years of experience working in -- in areas,
construction-related areas. She was the safety officer for a $40 million 700-employee
R&D facility that the Air Force ran out in the Mojave Desert. So, she knows about
heat, and she took great interest in this project.
She's seen the effects of heat and particularly related to construction. She worked in
demolition, and, so, she's had a lot of experience in construction and demolition areas.
So, we felt like we got a real prize, and I'm sorry she isn't here to do the presentation.
Her internship ended up Friday. So, we're trying to find some ways to keep her on board
for a little bit longer, but she isn't here today.
What we had Trice do was two projects. One was to develop what we're calling a palm
card, which would be a small hand-out type card that will be made available through our
usual channels of distribution and looking to you all for some ideas about that
distribution related to heat stress, and I -- I brought some copies of just the current
draft I can pass around for you all to take a look at.
We got lots of help on this project from the Directorate of Construction, particularly
Ellen Rosnowski, and we also got a very nice chart from Bob Masterson, who provided us
with a color chart that we're trying to incorporate into our materials.
The copy that you have does not have the chart in color, but it does have -- we're
going to adjust that. So, what you have is just sort of our working draft.
Right now, the document that you have with you is being worked by our information
office to try and make it look a little prettier, work on the format, get the colors right
and so forth, but the basic content will probably remain the same.
We've had a lot of review of this. We had input from the field and a number of people
that looked it over. You'll see that the language is very basic. We tried to keep it at
sixth grade level or below. We were going to go lower, but the Office of Information said
we were getting too -- too graphic. So, we ended up having to opt out on a couple things.
What we had intended was a -- you know, like -- something that would be a palm-size
card or pocket-size card that could be distributed. We realized that 62 percent of the
construction people in the country are not unionized and may not have access to
information through that channel. So, we wanted to get something that would be easy to
hand out from our compliance officers or through other channels that we might develop.
We've also translated the document. We have a summer intern here from Miami who just
finished nursing school, and she was kind enough to translate this into Spanish for us.
So, we now have one in English and one in Spanish, which we'll make available.
The plan at this point is for the information office to spruce this up a little bit.
We're not graphic artists. We're content people. So, we gave it to them to make it look
pretty. They're going to have that completed probably by -- unfortunately by mid-August.
We got started on this late. So, it's probably going to be mid-August before those are
In the meantime, we're going to put it up on the Web and at least have it available in
the community, so that people can take it down from there.
The other part of her project was to try to pull together for the field people some
resources that they could use in dealing with heat stress illnesses, both as background
material, outreach material and so forth. So, we've developed quite a research file as a
result of Trice's work, and we're going to be able to make that available to the field,
and we're working on some different alternative ways of getting that distributed, but
we've developed quite a resource file for the field's use on heat stress illnesses.
The other thing that I wanted to just let you know about that's also concurrent, our
Office of Public Affairs is publishing what's -- the title here is "Department of
Labor Helps Workers Cope With Summer Weather, OSHA Offers Cool Tips To Beat Workplace
Heat", and this is one of our traditional news release-type things that will go out.
This is widely distributed throughout the country and should be available, I think, even
now. I'll pass this around, too. It went out June 30th. I'm sorry.
So, that's the -- that's the nature of my presentation. I'd be happy to answer
questions, and I just wanted to close telling you all that we're very enthusiastic about
this area. Certainly with the weather the way it is, it's a critical hazard for
construction workers, and we're very concerned about that.
MR. BURKHAMMER: I would like to compliment you and your team. In my nine years of
association with ACCSH, this is the first document that's came before this committee
bi-lingual. So, I think that's something that should be commended.
MS. HANDELMAN: Thank you.
MS. WILLIAMS: Mr. Chairman?
MR. BURKHAMMER: Jane?
MS. WILLIAMS: May I offer a comment? We've been evaluating this for obvious reasons.
One thing that has come out of our research is the lack of attention by employers on age
grouping. They seem to think that's only a condition that affects older people, if older
can be classified, but it is affecting a lot of younger construction workers and other
areas where young people are very actively involved.
Are you giving considerations or just glancing quickly over these two pages, I don't
see a warning not to confuse age as a factor in the ability --
MS. HANDELMAN: Well, you're right. You know, that is a misconception in the community,
I think, at large, and, you know, we're -- the problem with the youth -- I mean we've --
we've addressed hazards to particularly young people in a number of fashions because they
-- they are all dealing with this invincibility issue and the whole macho thing that gets
into the way of trying to do the right thing.
But we just felt, I think, because of the size that we were limited in what we could
include. It's certainly -- something like that could certainly be included in the
materials we send to the field to just sort of a heads-up kind of thing, please pay
attention to the fact that there's -- there's -- this is not a -- not necessarily
In fact, I think we -- I -- I don't know for sure, but it seems like the younger people
would -- who might be in the summer jobs and so forth might be even at greater risk for
lack of acclimation and so forth. So, I'll make a note and see that we have something in
our field materials that addresses that.
MR. BURKHAMMER: Bob?
MR. MASTERSON: I was wondering if you all will also be addressing cold exposure prior
to the onset of winter.
MS. HANDELMAN: Our office particularly?
MR. MASTERSON: Yes.
MS. HANDELMAN: We could -- we could take that under -- under consideration. Is that a
problem that you think is important for -- to have some information out?
MR. MASTERSON: It would be very nice, and t here are several cases that I've run into
where the lack of understanding of the impact of cold and wind has caused problems, yes.
MS. HANDELMAN: Okay. Thank you for the suggestion.
MR. BURKHAMMER: Larry?
MR. EDGINTON: A quick question. Is this targeted or the targeted audience for this is
workers, employers or both?
MS. HANDELMAN: We try to make it for both.
MR. EDGINTON: Because I think you're right on track in terms of this notion of making
something pocket-sized, and if memory serves me correct, I think the Center to Protect
Workers Rights already has a pocket-sized heat stress information packet for construction
workers, I believe.
MS. HANDELMAN: They do. The little blue one.
MR. EDGINTON: The little blue one.
MS. HANDELMAN: Yeah, hm-hmm.
MR. EDGINTON: Yeah. And I know it's been well received.
MS. HANDELMAN: Right.
MR. EDGINTON: We use it a lot, and I think other crafts do as well.
MS. HANDELMAN: Okay. Yeah. We did look at that and took some of the materials, you
know, took some ideas from them.
MR. DEVORA: I'm assuming the palm card will be bi-lingual, also?
MS. HANDELMAN: Pardon me?
MR. DEVORA: The palm card would be bi-lingual, also?
MS. HANDELMAN: Yeah. Right. Be in English and Spanish, the two languages we chose,
MR. BURKHAMMER: Questions?
MR. BURKHAMMER: Thank you.
MS. HANDELMAN: Thank you very much.
MR. BURKHAMMER: Break for lunch. If any of the audience has anything they would like to
discuss with the committee or present, please write your name and topic on a sheet of
paper and bring it up to me, and when we have the question and answer session at the end
of the meeting, we'll call upon you to discuss what you wish to discuss.
Meeting adjourned for lunch.
(Whereupon, the meeting was recessed, to reconvene this same day, Wednesday, July 22nd,
|A F T E R N O O N S E S S I O N
MR. BURKHAMMER: Let's reconvene. If somebody will stick their head out the door and
tell everybody to come in, I think we'll get started.
MR. BURKHAMMER: Next on the agenda is Berrien Zettler.
MR. SWANSON: Excuse me. We have about three things for Berrien to do, and it looks like
he has recruited some assistants for part of that. If we could let Mr. Maddox go first on
the recordkeeping proposal.
MR. BURKHAMMER: Yes, we can.
|Other Reports (Continued)
OSHA's Strategic Plan for Construction
MR. MADDOX: Yes, just a brief update.
MR. SWANSON: You can give it to us in-depth if you'd rather, but a brief update is what
they asked for.
MR. MADDOX: Basically the project is continuing on. It's been a very long-term project
with notice of proposed rulemaking that was issued in 1996, followed by a comment period.
We've been working on a final rule since that time.
We did issue a very limited rulemaking, the 1904.17, about a year ago, which simply
required employers to send in their data when OSHA asked for it in support of the OSHA
The most recent development is that the project has been kind of transferred
administratively within the agency from the Office of Statistics to the Directorate of
Policy, which is now kind of the lead directorate for the rule, and I've been assigned on
a detail to Policy at the same time to work on it.
The issues for the construction industry are no different than they've been, you know,
for many years. A lot of the issues are the same as they are for any industry. How are we
going to redesign the form? How are we going to change the definitions of what gets
recorded on the form? How do employees get to access the form? All those same sorts of --
of issues that way.
There are a few issues specific to construction. The concept of construction site logs
or comprehensive records for an individual project, the exemptions for smaller employers
in the proposal. We had different exemptions for construction than for general industry,
and the definition of establishment, that I think are of particular concern.
MR. BURKHAMMER: When do you anticipate the final rule coming out?
MR. MADDOX: Our schedule right now is for the final rule to be published some time in
the Spring of 1999, by somewhere between March and June, with the implementation on
January 1 of 2000.
We have two large differences in time there in between publication and implementation,
which will give us time not only to provide a lot of outreach to the employers and unions
and so forth that are interested in the rule, but also to give us six months for the state
plans to adopt a comparable rule, because this -- unlike a lot of rules, what we want to
have here is we want to have all of the states come on board at the same time, whether
they're in the federal jurisdiction or whether they're under a state plan.
So, we'd like to have all those things happen at the same time. We'd like for all of
them to happen on a January 1st, since the records are kept on an annual basis.
MR. BURKHAMMER: Yeah. That was one of the recommendations that this committee made.
MR. MADDOX: Yes, it was.
MR. BURKHAMMER: Any comments or questions on recordkeeping? Felipe?
MR. DEVORA: Yes. Maybe I should address this to you. Is the requirement -- is this
still the requirement for, say, the general contractor to maintain the records of the
subcontractors of the multi-employer job site?
MR. MADDOX: Yeah. That was one of the proposal -- one of the parts of the proposal that
came out in '96. It was for major construction projects to try and get --
MR. DEVORA: Define major construction projects.
MR. MADDOX: I'm not sure exactly how we defined it --
MR. DEVORA: Okay.
MR. MADDOX: -- in the proposal. It's been, you know, a continuing topic of discussion,
is how to define what is a major construction project, whether by dollar value or some
MR. BURKHAMMER: Yeah. It was a million dollars=.
MR. MADDOX: Yeah. Okay. Thanks.
MR. BURKHAMMER: When we -- when we first got into defining, we were looking at small,
medium and large, and we figured that we couldn't do that. So, we looked at small and
large, and then we decided that the best breaking point after listening to several people
come forth was a million dollar project.
MR. MADDOX: In the docket, we had a lot of comments that a million dollars isn't a very
MR. BURKHAMMER: Right.
MR. MADDOX: You know, some people recommended two, five, 10, if they supported the
concept at all.
MR. BURKHAMMER: One of the comments from someone from California, and I can't remember
who it was, you made, John, was the average home now in California's a million dollars.
So, is that a large project? And that brought an interesting discussion among the
stakeholders that were commenting on that particular thing, and -- and if it's a million
dollar home, we looked at it as a large project. For a homebuilder, that would be a large
Now for Ryland or someone like that, it probably wouldn't be, but for a small
contractor, a million dollar home would be a pretty big job.
Bob, would you like to comment on that? Use the -- you got to speak louder because of
MR. MASTERSON: A million dollar project for any homebuilder is a big house. I don't
care whether you're Ryland or whoever. The problem that we had was how -- wasn't so much
the recordkeeping, it was how it was structured so that you had to start relating to an
individual house as a separate establishment. That meant if there was multiple posting
requirements, that my posting requirements were whatever the -- you know, there was three
forms times 8,000, and that's a lot of pieces of paper, and if my supervisor's handling
paper, he can't be doing the job of walking houses, and which is more important?
MR. BURKHAMMER: One -- one of the things we discussed, and I don't know where we ended
up on that, was in a tract where you're building multiple homes. The discussion was is one
home one project or is the tract the project, and I think we settled on the tract was the
project as long as it had a common --
MR. MADDOX: I don't -- I don't think that the proposal was specific on that either way,
as to whether it was a home or an entire subdivision or a group of contiguous homes. You
know, my -- my feeling on it is that it would not go down to a single home for a large
MR. BURKHAMMER: Yeah.
MR. MADDOX: But I don't think that the proposal was probably as definitive on that
subject as it probably could or should have been.
MR. BURKHAMMER: Well, I think you can gather from that we didn't miss much in our
discussions. I mean we hit on everything you could think of when we -- and it took us --
well, we're in our ninth year now of working on this standard.
MR. MASTERSON: The only thing I was going to say is that it isn't so much how you
define project as it was how you defined the establishment. Establishment was defined as
any structure under construction for greater than 60 days, and that all of a sudden, every
one of my houses is a separate establishment, and that's where it started throwing it in
MR. SMITH: I have a question.
MR. BURKHAMMER: Steve's first, then you.
MR. COOPER: What Owen was going to bring up probably is more important than mine. Bob,
you need to refresh the committee's knowledge, I think most of us know, how many
contractors do you have on a medium-sized residential home?
MR. MASTERSON: Well, to be honest with you, I can't give you a count. I can tell you
how many across the country for me, and it's a little over 5,000.
MR. COOPER: On an individual home, just to build an individual home, how many
contractors might you employ?
MR. MASTERSON: Could be as high as 50 in an individual home.
MR. COOPER: What was the answer?
MR. MASTERSON: Could be as high as 50 for one individual home.
MR. COOPER: 50 contractors? Thank you.
MR. BURKHAMMER: Any other questions or comments? Oh, wait a minute. Owen was next.
MR. SMITH: I understand that at one time, that you were required to reference the
musculoskeletal disease -- disorders. Are you still going to require that?
MR. MADDOX: Yeah. The injuries and illnesses that are musculoskeletal disorders or
CTDs, RSIs, that go under a variety of names, are recordable under the current system, and
we also offer criteria for them being recorded under -- under the proposal are really very
similar to what they are today.
You know, if you have a carpal tunnel injury or a tendinitis, and it results in medical
treatment beyond first aid, transfer to another job, restriction of worker motion, those
are recordable injuries and would continue to be so.
MR. BURKHAMMER: Yeah. We didn't change any of that. Felipe?
MR. DEVORA: Just to refresh my memory on this million dollar break, is that -- is that
the break that you're -- that you're saying that the general contractor would be required
to maintain the records for the subcontractors?
MR. MADDOX: Yeah. They're required to keep basically a real -- abbreviated report of
each injury, you know, for all of the people that are working on that job, all of the
subcontractors, you know, so they keep track of what was the person's name, did they die
or not, you know, and who did they work for, you know. So, it would be very, very
You know, the question we had a minute ago was how many subcontractors might there be
on one home. That's a very interesting question. The other question is how many workplace
injuries are there on an individual project? You know, on the average home or on the
average bridge or on the average skyscraper. Nobody knows because there's no records that
are arrayed that way. The records are arrayed by employer, and, so, nobody knows what the
relative risk is of these different types of construction.
MR. DEVORA: Aren't each -- isn't each employer required on OSHA 200 to provide that?
MR. BURKHAMMER: 10 or more employees.
MR. DEVORA: 10 or more?
MR. MADDOX: Yeah. An employer with 10 or more would keep records, but they would not
have to necessarily keep them by project. They would only keep records for an individual
project if they were going to expect it to be there for a year or longer.
MR. DEVORA: So, now the general contractor
MR. MADDOX: So, -- so, yeah. So, for example, a general contractor --
MR. DEVORA: Would it be --
MR. MADDOX: A general contractor might have one log that encompasses 10-20-30-40
projects in the same way with an individual sub. There's no way to pull those back
together to create a record of which kind of projects the injuries are --
MR. DEVORA: And you're assuming the general contractor will be able to do that in a
more -- implement that in a more organized fashion --
MR. MADDOX: That was the concept.
MR. DEVORA: -- assuming you have 50 -- 50 subcontractors on -- on 14 different sites,
15 times 14, on jobs that last -- on a million dollar job that would last for three
MR. MADDOX: That was the basic concept, yes, to ask the general contractor to keep a
short record of all the people that got hurt on the job.
MR. DEVORA: I hope we don't finish the job before we pull all that information
MR. BURKHAMMER: Bob?
MR. MASTERSON: How do you propose to ensure that there's not double entries? Double
entries in the sense that we used to talk to these small builders, like -- small
contractors. The general contractor may or may not ever become aware that there was a
minor injury on the site. Particularly with residential construction, it's not unusual for
supervisors to have multiple sites.
MR. MADDOX: I think those are exactly the comments that got fleshed out in the docket
during our comment period, and that was one of the -- one of the real problems, is how
does the general contractor learn about injuries that occur to the subs, you know? How are
the subs supposed to report them? Should the subs be required to report them? You know,
there were a variety of these issues that came out in -- in the public meetings that we
held during the comment period and in the written comments, you know. So that it's very
full on that type of issue, and, you know, the question is where are we going to decide on
the final rule, and, you know, I think it would be inappropriate to discuss that until
those decisions are made and approved by OMB and the assistant secretary.
MR. MASTERSON: Well, again, I'm going to go back to keeping the records straight
because we've tried different things ourselves with the small contractors, and what
happens is they start turning in reports that they had 10 injuries that year or 10
injuries that month. That same report goes to everybody that's asking for the information.
So, do you record all 10 of them or do you split it up amongst five different
communities or do you split it up amongst 10 different builders? Those small contractors
that you're talking about aren't required to keep logs. They don't keep logs. So, they're
just going to pencil a piece of paper and hand it in to the general contractor, and you're
going to get duplicate entries all the way across the board. If your data's skewed now,
it's going to be far worse.
MR. MADDOX: So, those small contractors don't know where their injuries occurred, what
MR. MASTERSON: That's not what I said. What I said is that they're going to turn --
excuse me -- the same list of injuries in to every builder they work for, and when you
have that happen, you're going to get one contractor that may work for 15 different
general contractors, and all 15 of them are going to get the same thing.
How are you going to assure the accuracy of the data you're counting?
MR. MADDOX: All that we're requiring the general to do is to record those injuries that
occurred on his job. Hopefully he can sort that out when he gets a report like that from
the subcontractor, I would think.
MR. MASTERSON: If -- yeah. He'll get a report from the -- from the contractor, and that
same report goes to all 15 generals that the contractor works for.
MR. MADDOX: And you think all 15 generals would be willing to record that same injury?
MR. MASTERSON: They probably won't have any choice.
MR. RHOTEN: Why would the subcontractor turn in 15 -- to 15 different general
contractors on housing an injury that happened on a particular site?
MR. MASTERSON: Because they don't keep records of it.
MR. RHOTEN: Well, I can tell you that they do. They know where those hours are on those
sites. They know how many hours it takes a plumber -- they know who to charge the money
to. They've got records on that, and they can tell you if you're a day behind.
MR. MASTERSON: Bill, I don't want to argue with you. No, they don't.
MR. RHOTEN: Yes, they do.
MR. MASTERSON: There's a lot of them we have to remind them to bill us. So, there's a
lot of very small contractors out there that don't keep those records. They're working on
a per house bid, and all they know is when the house is done, and they submit the invoice,
and that's the extent of it. When you start asking them to track injuries, they lose track
MR. RHOTEN: They submit the invoice before the person did the work is my point. The
subcontractor that has a foreman out on the job site, and he gets hurt on that site, he
knows what site he got hurt on.
MR. MASTERSON: That has not been my experience.
MR. RHOTEN: Well, they know where every hour is that is spent on a particular site.
MR. MASTERSON: Well, obviously you haven't worked for the same contractors we have
The point being is and my question is, how are you going to assure the accuracy of the
data? If you're getting bad data, what good is all this paper work?
MR. MADDOX: The accuracy of the data is definitely the primary concern, and we'll be
making those decisions based on the input that we have in the docket when we had a comment
period from the proposed rule as it's supposed to happen. We've got a docket that has 450
written comments in it, and I believe that somewhere around a hundred of them are from the
construction industry and discuss this issue.
So, it's -- all of the issues are very fully discussed. You've got your own comments
that were entered at that time, and during the public meeting, and that's what we'll be
basing our decision on.
MR. SMITH: Are you requesting that the sub report to the prime only those injuries that
occur on his project? I think that's what you're saying.
MR. RHOTEN: That's my point.
MR. SMITH: And his concern is that if the sub is working for more than one prime, that
he will -- he'll make out one report, and he'll pass it around -- if he only had one
injury, and he just passes it out -- passed the paper so that the material that you
receive will show you the 10 or 15 injuries, one actual, but it would be more simply
because the guy turns it into more people. That's -- that's the possibility.
MR. RHOTEN: But you would think that the guy that turned it in would put a job site
location on it. That's the whole purpose of it, and I agree the thing might not be
perfect, but we don't have anything now. So, even if it's slightly flawed, we're going to
be a lot better off than we were before.
MR. BURKHAMMER: Jane?
MS. WILLIAMS: My concern is your statement that you're requesting it of the sub, but
you're requiring it of the general. If you're going to require a general to track it, you
must require the subcontractor to provide it, otherwise you get in a catchall situation
that's very difficult for compliance and would be cited against that general for lack of
MR. MADDOX: A very common comment in the docket.
MR. BURKHAMMER: Any other comments on recordkeeping?
MR. BURKHAMMER: Thank you.
MR. MADDOX: Thank you, sir.
MR. BURKHAMMER: Berrien, welcome.
MR. ZETTLER: Thank you.
I have been asked by the group to talk about the Strategic Plan that OSHA has been
working on for a number of years now.
As a result of the Government Performance and Results Act of 1994, all agencies are now
required to develop five-year strategic plans. There's a hand-out coming around which will
be the basis for -- upon which I will make my comments. I'll make references to pages and
the like. So, as soon as that gets handed out, we will start the actual presentation.
But just by way of background, once again the -- the -- all government agencies are
required to develop a five-year plan, which will lay out the accomplishments that they
hope to achieve to accomplish their mission over that period of time.
The goals and objectives which the agencies are required to develop in their five-year
plan will be used under the Act, will be used as a basis for the Congress to consider when
their appropriations bills come up. So, the success or failure of an agency to meet the
goals and objectives that it sets out could affect the -- the budget that that agency
might be awarded in future years.
So, it's a -- it's something that is -- that all of the agencies ought to be taking
very seriously, and certainly OSHA has taken very seriously.
We've spent now probably a year and a half to two years because we actually started a
little bit ahead of most of the agencies because we were a pilot project under the -- we
call it GPRA, which is again the Government Performance and Results Act.
OSHA was one of two pilot agencies, and we were able to get a kind of a head start on a
lot of agencies because we were a pilot agency. But our real work of developing the goals
and objectives really started about in -- in 1996, and we have spent, as I say, about a
year and a half developing the goals and -- and objectives which we will be talking about
in a few minutes.
The context within which OSHA develops its goals and objectives is the Department of
Labor because the GPRA Act requires the department to have all of its agencies integrated
into its department -- its goals and objectives. So, there is the -- there's kind of like
an umbrella goal and objective package which is the -- the Department of Labor's, and then
each one of the agencies within the Department of Labor had to submit a package to the
department of their own goals and objectives, all of which then had to be integrated into
the department's goals and objectives.
So, that's -- that's kind of the background, the setting within which we will -- we
will talk about -- I'll talk about the specific goals and objectives.
One of the goals and objectives that the department set out was a -- a -- a goal of --
of improving workplace conditions and quality of life, if you will, and safety -- the
safety and health of workers fits under -- generally under that goal, which is the third
goal for the Department of Labor.
If we turn now to the hand-out I just gave you to Page 5, I'm going to skip -- the
first several pages are kind of like background. They're general comments about what is
the mission of the agency, and -- and how we in general hope to obtain our goals and
objectives, which is very much -- very much dependent upon stakeholder support and input.
OSHA -- OSHA, I think, and GPRA is intended to do this, is to drive the agency away
from a -- a dependency purely on itself to accomplish its goals and objectives. In order
for the agency to successfully accomplish its goals and objectives, we must be able to
solicit and obtain the support of our stakeholders, which is one of the primary reasons,
of course, why we want to go over this with -- with -- with ACCSH.
So, turning to Page 5, there are -- basically, there are three general goals which the
agency, OSHA, has set out to accomplish or to assist in accomplishing, to help accomplish
the third goal of the Department of Labor.
The way this plan has been developed, all of those goals are inter-dependent. We -- we
will be unable to achieve any particular goal unless we are able to achieve all of the
goals. They are very closely related to one another as you'll see when we turn to the
So, it's going to be important for the agency to keep very -- to keep its eye very,
very closely trained on what these -- these objectives -- goals and objectives are because
if we slip up on one, we may slip up on all three of the goals.
Again, I would like to emphasize that -- and I hope that -- that the kind of
relationship we've had with -- with ACCSH in the past will make it even easier in the
construction industry than perhaps in other industries, but this -- these things depend
very much -- all of our goals depend very much on -- on stakeholder support.
There is a large element of partnership. There's a large element of outreach. There's a
large element of the kinds of things that we will need assistance and help from
stakeholders to accomplish.
Let's turn now to Page 6, the next page, and this gives you -- on the next page, there
are three bullet points after the first paragraph. Those are general statements of the
three goals which the agency has set out for itself. We'll talk about the objectives or
strategies, if you will, when we discuss these in greater detail.
The first goal is to improve workplace safety and health for all workers as evidenced
by fewer hazards, reduced exposures, fewer injuries, illnesses and fatalities.
The second goal is to change workplace culture, to increase employer and worker
awareness of, commitment to, and involvement in safety and health.
The third goal is to secure public confidence through excellence in the development and
delivery of OSHA's programs and services.
I think just reading those three goals, you can see how inter-dependent they are, that
if, for example, the -- the agency fails to deliver its programs and services effectively,
then that could very well have an effect on -- on the -- the workplace improvement of
safety and health. So, all of these things are very closely related.
Turning now to Page 7, and we're now going to deal with the first goal, the first OSHA
goal. Improving workplace safety and health for all workers as evidenced by fewer hazards,
reduced exposures, fewer injuries, illnesses and fatalities.
Each one of those goals -- excuse me. Each one of those sub-goals, if you will, or --
or specific -- specific issues under that goal have associated with them a number of
objectives. The objectives you will see laid out as 1.1A and so on through the rest of
that page and on to the top of the next page.
I just want to review those real quickly without spending a great deal of -- of time on
them. The first objective is to -- is to reduce injuries and causes of illness by 15
percent within selected industries and occupations.
Now, that is a goal which cuts across industries. This is not a goal which focuses on
specific industries. It rather focuses on specific causes of injury or illness.
The three that have been identified are amputations, lead and silica. Those are -- are
widely diversified hazards in many different industries. So that -- so that both general
industry, construction and maritime will have a program that will -- will -- will focus on
these three injuries or illnesses within -- within their particular industry. This is not
specific to any given industry.
When we turn to 1.1B, that is to reduce injuries and illnesses by 15 percent in five
industries that are characterized by high hazard workplaces. So, we now move from the
hazard, which was the first goal, to the -- to the workplace, and now when we turn to
workplaces, we are talking about specific industries.
In this particular case, construction is one of those five industries. The others, for
your information, are food processing, shipyards, nursing homes and logging. Those are the
five industries with very high rates of -- of injuries and illnesses, and those are the
ones which we have focused on for the workplace fixes, if you will.
Now construction has one that is specific to it. Construction is the only one -- the
only industry which has a 15-percent reduction in fatalities. So, not only does
construction have the responsibility under 1.1B to reduce illnesses and injuries by 15
percent, we have an added goal or objective of reducing fatalities by 15 percent as well.
Now the fatalities that we'll be focusing on are not all fatalities but those
fatalities which are related to the four primary causes of fatalities in the construction
industry which are the same four causes of injuries that are also at the basis of the
focused inspection program. That's falls, struck by, crushed by and electrocutions.
The agency, in addition to that, has a number of agency-wide goals. 1.1D refers to a
20-percent reduction in those 100,000 workplaces which we will visit. The agency does some
20,000 inspections -- or different workplaces, some 20,000 workplaces a year, roughly. By
2002, we will have done therefore a 100,000 workplaces, where we actually do some kind of
Now that does not necessarily mean only inspections. It means consultation. It means --
it means any kind of intervention which takes place in -- in a workplace.
As a result of those interventions, the agency has set a goal for itself or an
objective for itself to reduce injuries and illnesses in those facilities by 20 percent,
which means that we will be tracking the injury and illness records in those 100,000
workplaces at an increment of roughly 20,000 per year.
Now, 1.1E is -- is another requirement, and it's a separate requirement, actually,
under -- under the GPRA implementation procedures, and that is that the agency will
evaluate each standard that it puts into place within four years of the effective date,
will -- will evaluate that standard as to its effectiveness in reducing injuries and
illnesses in the workplaces which are covered by that standard.
You already begin to see that in all of these objectives -- and this is going to
continue throughout the paper, you already begin to see that this is going to require an
immense amount of data, that OSHA is going to have to be getting lots and lots of data to
be able to track all this stuff, and that puts us into one of our first rather odd
conflicts because the Congress that passed the Government Performance and Results Act also
passed an act called the Paperwork Reduction Act.
The Paperwork Reduction Act includes as paperwork data that is -- is gathered by the
agency from -- from non-governmental sources. So, for example, gathering data does count,
even on -- even on something that we need to measure a goal that we're required to
establish under GPRA. It does count as a paperwork burden to get -- to gather the data
that we need to support the effective accomplishment of the objective. So, that's one of
the things that the agency also has to be attendant to when we -- when we do these things.
It's not that we can't increase paperwork burden in -- on -- for these particular
things. It's just that the total burden, the total burden that the agency places on -- on
the -- its clients, that burden cannot increase. So, where you increase burden in one
place, you have to decrease it in another place, and indeed you have to do more than that
because we have objectives of reducing by 25 percent or some percentage number, depending
on the year, the outyear we are, to get -- to get our paper -- our total paperwork burden
So, it's quite a challenge to the agency to figure out a way to get the data that we
need to measure our success in accomplishing our objectives, and at the same time not to
increase the paperwork burden on -- on the private sector.
1.1F, reduce injuries and illnesses in establishments that participate in local
strategic initiatives. What that refers to is, as you know, the agency is in the process
of rolling out as we say our area offices under our reinvention procedure.
Part of that process involves the area offices developing local strategic initiatives,
figuring out new ways of dealing with the -- the -- the problem areas, if you will, within
their -- their particular area office jurisdiction.
One of the -- one of the best examples of that is in one of our New Jersey offices, we
-- we undertook, in addition to establish a relationship with the state patrol in that
particular state where the state patrol would indicate to us, would make referrals, if you
will, to us after -- after first attempting to obtain correction themselves, will make
referrals to OSHA if, for example, on a highway construction project, motorists are going
too fast or -- or -- and/or people aren't wearing their orange vests or the warning signs
have not been put in place, and that kind of thing.
So, we're trying to develop initiatives like that which will engage other safety
conscious people in the process of helping us reduce injuries and illnesses, and -- and
that's only one example. Many of the area offices have examples like that where -- where
they are -- they are doing these -- these kinds of local strategic initiatives.
Under 1G, we have one of our areas where we do not yet have a -- a measure or an
objective. The way this state -- the way this strategic plan has been crafted, it is a
federal strategic plan. We are encouraging the states, in fact the states would be
required to the degree that they receive federal money, would be required to develop a
strategic plan. It need not be the same as the federal plan, but they will be required to
have a strategic plan in place, and we're trying to figure out how we would help the
states deal with that.
One -- we assume because it -- it's sort of intuitive that the states plans will also
have to deal with reducing injuries and illnesses. I mean it doesn't make much sense to
have a safety and health plan which wouldn't result in the reduction in injuries and
So, we have to figure out what does OSHA want to do, and what do the states want to do
with incorporating reductions in injuries and illnesses that result from a state strategic
plan, how do we want to count that? Do we want to count that -- because we have to make a
report to Congress annually. We have to make an annual report to Congress on -- on our --
the success or failure with respect to the different -- the different objectives.
Not specifically related to construction but which could be peripherally related to
construction is 1.2A, which is the next goal.
MR. SWANSON: Berrien, may I interrupt you? Before you go on to 1.2 and walk us through
that, if we can have just a couple of moments. We have been joined by our chief of staff,
and I know she has a 2:00 meeting. If she could join you at the witness table and be
introduced to ACCSH, it would be appreciated. Sorry to stop you, Berrien.
MR. BURKHAMMER: We are very pleased to have a special guest this afternoon, and she's
taken time out of her schedule to join us. Mary Carol Lewis, Secretary Jeffress' chief of
MS. LEWIS: Thank you. Look forward to working with you. Didn't mean to interrupt your
meeting. Some of you I know, some of you I don't know, and I'm looking forward to meeting
you and working with you in my capacity here. Anything I can do, let me know. I really
didn't mean to interrupt you, Berrien.
MR. SWANSON: He probably wanted a break. Yeah. You want a glass of water or something I
can get you, Berrien? It's redundant, but because she doesn't know all of you, why don't
we -- Bill, walk around the table again and by name and organization.
MR. RHOTEN: My name's Bill Rhoten, and I'm with the Plumbers and Pipefitters.
MR. SMITH: My name is Owen Smith. I'm a painting contractor from Los Angeles.
MR. MASTERSON: My name's Bob Masterson, and I'm with the Ryland Company.
MR. EVANS: Danny Evans, Chief Administrative Officer of OSH Enforcement, State of
MR. DEVORA: Felipe Devora, Fretz Construction Company, General Contractor, Houston,
MS. HARRINGTON: Gladys Harrington, Operating Engineer, Long Island.
MR. BURKHAMMER: Stu Burkhammer, Bechtel.
MR. SWANSON: Unfortunately for me, she knows me.
MR. BUCHET: Michael Buchet with the National Safety Council.
MR. COOPER: Steve Cooper, Iron Workers.
MS. WILLIAMS: Jane Williams, A to Z Safety.
MR. EDGINTON: Larry Edginton, International Union of Operating Engineers.
MS. LEWIS: Thank you, and I am new on the scene. I've only been here since April 20th,
and I'm getting up to speed as quickly as I can, and this is the first time you've met
since I've been here. So, I appreciate you taking the time to introduce yourselves, and we
look forward to working together.
MR. SWANSON: Thank you for stopping by.
MS. LEWIS: Thank you. I'd like to join you at future meetings.
MR. BURKHAMMER: Thank you.
MR. MASTERSON: Before you go on there, could I get some clarification? I need you to
back up to 1.1A. Did I understand you correctly that three specific areas that you have
identified on 1.1A was lead, silica and amputations?
MR. ZETTLER: Correct.
MR. MASTERSON: And in those three areas, you're going to achieve or you want to achieve
a 15-percent reduction?
MR. ZETTLER: That's correct.
MR. MASTERSON: That will be accomplished in the five industries underneath?
MR. ZETTLER: No. That will be accomplished wherever amputations, lead and silica are
found. We -- we -- we are hoping -- and we already have made some -- I mean we can -- we
already know pretty much where -- in a general way at least where silica, lead -- silica
and lead are found. We know the general industries where those are found. We know what
kinds of operations involve those.
So, we will be looking across, including construction, we will be looking across many
industries at silica and the -- and the illnesses that result -- the exposures really. We
-- what we're really going to be looking at is the 15-percent reduction in exposure
because -- because we can't really measure the illness effect of silica because it's a
long-term effect, as you know.
But -- but those will not be in these five industries. In fact, one could argue that at
least some of these five industries don't have lead or silica problems.
MR. MASTERSON: Absolutely, and that's what I was trying to understand, is what nursing
homes were doing in as part of the group being looked at to reduce lead, silica and
MR. ZETTLER: That's right, and they would not be. Those are -- the -- 1.1A looks at
hazards across the board. 1.2 looks at specific workplaces within certain industries. So,
there's a whole different set of hazards there, and it would -- it might involve -- some
of them might involve lead, amputations and silica, but most probably will not.
MR. MASTERSON: Do you think that this could be written up in more plain language --
MR. ZETTLER: Yeah.
MR. MASTERSON: -- to tell us what you're trying to accomplish?
MR. ZETTLER: Right. Yes. I should say that -- I should have said that up front. What --
what you have here is a -- is a kind of an outline document which is primarily a report.
It's intended to be given to -- to Congress or to whomever else the agency wants to report
There is a whole detailed back-up to this which includes the measures, what each step
involves. There's a looseleaf binder that's about that thick with all of the back-up
stuff. I -- I have not -- I didn't bring that with me because I just didn't think we had
time, but -- but that could be made available to anybody who wishes to look at the whole
MR. MASTERSON: Is some of that the tables that were provided to us earlier? Stu, do you
know the tables I'm talking about.
MR. BURKHAMMER: Yes.
MR. ZETTLER: I don't know because I don't know what tables you're referring to.
MR. MASTERSON: The reason I'm drawing this
-- going back to this is I went through -- thoroughly went through Tables 1 and 2 for
OSHA's strategy for fiscal year 1999 performance plans, and that actually made it harder
to understand than what you've got here, and I'm trying to figure out, you know, -- and
that was supposed to be after the plain English translation was put on to it.
MR. ZETTLER: Surely you're not suggesting that it's not in plain English?
MR. MASTERSON: Well, they're English words, but it's -- I have a very difficult time
following what was going to be accomplished.
MR. BURKHAMMER: Berrien, what -- what he's referring to is the performance measure
MR. SWANSON: I think they were provided with a copy of the performance plan, a
derivative of the Strategic Plan that you're outlining.
MR. ZETTLER: Yeah. They may very well have been. I apologize for not having
familiarized myself with the hand -- that particular hand-out. But I can look at it
afterwards, and we can maybe resolve some differences that way, but I apologize for not
having done that.
MR. MASTERSON: All right. 1.1D, at least a 20-percent reduction in injuries and
illnesses in at least a 100,000 workplaces where the agency initiates a major
How do you plan on tracking that when a lot of those employers that you'll be working
with are well under that 10 employee mark and aren't required to keep records?
MR. ZETTLER: Right. What -- what we are -- what we will be attempting to do is get
either voluntarily for those who don't keep the records or -- or if they do keep the
records, a copy of their records.
We -- we have not fully worked out how we're going to do that particular tracking for a
variety of reasons. The agency has not traditionally collected even OSHA 200 data on every
-- on every employer, particularly in the construction industry. Most of -- most obviously
because we do not -- many, many construction companies, as you know, don't keep their
records on site. They keep their records back at their office, and OSHA often does not go
back to their office to collect those records. So, there are a lot of logistical problems
which we'll have to solve in order to do this.
The question of the small employer is not required to keep records is certainly a
problem for us, and it may be that we will just simply exclude the small employers and try
to -- try to focus on the large ones. I don't know. That question has not yet been
There are a number of questions on that -- particularly on that issue that we don't
have the answer to yet.
MR. MASTERSON: I sympathize with your problem. The amount of paper generated here and
what appears to be on the recordkeeping requirements, you're probably going to totally
offset anything you've ever done to reduce paperwork.
MR. BURKHAMMER: Berrien, what -- this morning, I don't know whether you were present or
not when Steve asked the question on the slide presentation of how you were going to
reduce -- not you personally but how the agency was going to reduce by 15 percent injuries
and illnesses in the workplace, and employers basically do strategic plans, and we do --
at Bechtel, we do three- and five-year strategic plans, and I'm very careful in saying
words like reduce, affect, develop, things where I personally am held responsible for
doing a certain thing, and words are everything, and I'm just curious as to how an agency,
a governmental agency, who -- and you indicated the Congress is going to get this plan,
and they're ultimately the agency's boss, I assume, the Department of Labor.
If I were to tell my boss I was going to reduce injuries by 15 percent, I would be held
accountable for that, and I just don't see how the agency can -- can go out and reduce
injuries and illnesses that are controlled by a contractor, controlled by an employer. The
workers work for the contractor. The contractor implements or does not implement a safety
and health program, and I think you're holding yourself up to a -- to a criteria or to an
objective that's going to be damn hard to meet.
MR. ZETTLER: Unfortunately, we were not given the option. The Congress requires the
agency to lay out its goals and objectives in outcome terms, which means that we have to
say it this way.
The agency cannot say we'll try to get a 15-percent reduction. Under the law, we have
to say that -- that -- the whole point is precisely to hold the agency responsible for
whatever it claims.
We -- we have tried to -- the only thing -- the only option that the agency had is to
try to get a number it thought it could reach, not what -- how the language would be.
We -- we were required to say reduce by such and such an amount. That's just -- that's
the way the law is written. That's what Congress wanted us to do. We did try to -- try to
wrestle with this, and there was a lot of wrestling about it, too, believe me, because 15
percent is not a small number.
MR. BURKHAMMER: That's right.
MR. ZETTLER: But -- but on the other hand, anything less than 15 percent, we felt,
would not be accepted as a credible number. We thought 15 percent was pushing it down low.
So, you know, we were kind of between a rock and a hard place on this particular one.
MR. BURKHAMMER: Okay. Thank you. Please continue.
MR. ZETTLER: Okay. Are there any more questions on 1.A or 1.1?
MR. EVANS: I have -- I have a question. What is the definition of a major intervention?
MR. ZETTLER: I don't mean to be facetious, but it's almost anything the agency does. In
any -- any inspection will count as a major intervention. Any consultation visit will
count as a major intervention. Any voluntary protection program or other voluntary safety
and health process where the agency does an on-site visit will count as one.
So, I mean there's a whole variety -- almost anything the agency does --
MR. BUCHET: Any long telephone calls.
MR. ZETTLER: Well, it won't include -- it has to be an on-site -- there has to be an
on-site visit for it to be a major intervention.
MR. EVANS: So, a fax and phone resolution wouldn't count?
MR. ZETTLER: Would not count. Although there is -- there is -- that is still a not
entirely resolved issue because there -- there is a -- a fairly strong feeling in the
agency that -- that phone and fax ought to count, also, because it produces an effect, a
safety effect in the work place, and really I think that the key -- the key issue is going
to be does it or does it not have the potential to produce a key -- a safety and health
change in the work place.
MR. EVANS: Well, I'm glad to see that somebody's finally found a definition because
we've been asking from the state plan state programs for over a year now that -- to define
that, and nobody's been able to do that.
MR. ZETTLER: I'm not sure I was successful either, but, anyway, the problem with all
this is -- one of the problems with definitions and even with the -- with the objectives
that are being set out is that these will -- these are acknowledged by almost everyone,
that the goal is going to be -- I mean the target's going to be a moving target.
I mean we are allowed each year -- the Congress allows us to make adjustments each year
as -- as necessary. That does not mean we won't be held accountable for that year's goal,
but it does mean that we can make adjustments as reality shows it necessary to make
I'm over my time, and I'm not even halfway through.
MR. BURKHAMMER: No. That's -- I think this is an important issue, and we --
MR. SWANSON: May -- may I suggest, however, we've got two solicitors here, though, that
are probably billing us by the hour, Berrien. If -- is it possible, Mr. Chairman, to take
a break here? I know that the 3:15 time slot has already been covered this morning. So, if
we could interrupt, let the learned counsel make their presentation to us on
Multi-Employers, and then pick this up again. Is that possible?
MR. BURKHAMMER: Berrien, does that throw you off?
MR. ZETTLER: No. That's possible. I'm in the habit of doing what my boss suggests.
MR. BURKHAMMER: That could be an initiative. Thank you, Berrien. Why don't we take a
short break? Come back at 10 after, and we'll go into the Multi-Employer Policy.
|Multi-Employer Citation Policy - Discussion of the
IBP Decision and its Impact on Enforcement in Construction
MR. JUSTH: And every night clean the equipment, and IBP knew that they were not in fact
following the lock-out tag-out requirements, and they would sometimes tell the contractor
supervisors your employees aren't following lock-out and tag-out. The supervisors would
say we'll do better, but they didn't do better, and this persisted for a period of several
years, until about -- in 1993, when a contractor employee was killed during the cleaning
So, OSHA cited IBP not because IBP's employees were exposed to any hazard but on the
basis that IBP controlled this hazard, that IBP had agreed in the settlement agreement
that it would enforce lock-out tag-out requirements against the contractor, that IBP's
contract allowed it to suspend or discontinue the contract if the contractor did not
follow lock-out tag-out requirements.
The Review Commission found that IBP violated the lock-out tag-out standard, and IBP
appealed it to the D.C. Circuit. There were two fundamental arguments that IBP raised.
One attacked the entire idea of the multi-employer doctrine, the whole idea of the
liability should be based on creation or control rather than employee exposure. They
argued, and they were supported in this argument by a number of amici, including the
Associated General Contractors of America, that the OSH Act itself only permitted an
employer to be found liable for a violation if that employer's own employees where exposed
to the hazard, that there was no such thing as liability based on creation or control of
hazards. It was solely based on employee exposure.
The court did not resolve that issue. They said they didn't have to reach in this case,
and they were not going to reach it, but they did in their decision imply that they
thought there could well be merit to the argument, based on statutory language. In
particular, language in the statute that talks about employers and employees.
They seemed to read this as saying that because the Act talks in terms of employers and
employees, that it thinks of liability in terms of an employer and their own employees.
So, they left that issue to be resolved another day, but they did indicate that they
thought there might well be merit in that issue.
They vacated the citation based on the idea that IBP in their view did not control this
hazard. For this court, it wasn't enough that IBP had contractual -- had a contract with
the contractor that required them to enforce lock-out tag-out and that allowed them to
suspend the contract if IBP -- if the contractor did not follow lock-out tag-out.
They referred to suspension of the contractor as trying to hit a small target with a
howitzer. They thought that that was overkill, that it just shouldn't be necessary, that
it should be enough to hold the contractor responsible and not the company who hired the
So, what are the implications? This was not a construction case, as I said, but it does
have implications for the application of the multi-employer doctrine on construction
First, basically the court is inviting additional cases, additional employers to argue
that the whole multi-employer doctrine isn't found under the statute, and there are cases
in the pipeline where employers are making that argument, and those are going to continue
to get to the courts, and we'll just have to wait and see.
We think we're on fairly solid ground on that argument. To accept that argument would
have some major implications for a lot of OSHA standards. For example, the hazard
communication standard says that chemical manufacturers have to evaluate the hazards of
the chemicals that they do and notify downstream employers of those hazards.
If an employer can only be responsible if their own employees are exposed, then OSHA
could not create a duty and a standard that ran to the benefit of downstream employees,
that required an employer to do something that would only benefit downstream employees.
In one of the more perverse examples I can think of would be back-up alarms. You've got
one company maybe operating equipment that's required to have back-up alarms, but the
people that are walking around this equipment may not be employed by that company. They
may be employed by somebody else. To disconnect, you know, the responsibility for
complying with the standard from the operation of that equipment and to say that the
people responsible for complying with that standard are the ones whose employees may be
affected by the absence of back-up alarms would obviously not be a very productive way to
approach workplace safety.
Perhaps the more direct impact of the IBP decision has is on their idea that control of
hazards cannot be tied to contractual responsibility for the abatement of hazards. On
construction sites, many construction sites, a general contractor by contract can order
contractors to abate hazards.
This decision seems to suggest that that relationship alone, the contract the general
contractor has, would not be a basis for finding the contractor to control the hazards. It
would not be a basis for citing the general contractor, and this could lead to confusion
on construction sites as to whether the sub-contractors really have to follow the
direction of the general contractor.
There's one case now being litigated in the Court of Appeals for the 10th Circuit,
which is in Denver, involving this very point. In that case, the general contractor was
cited because subcontractor employees were working on a variable lift and were not tied
off. Only the subcontractor employees were exposed, and the subcontractor's relying on IBP
to say that they cannot be held responsible for the subcontractor's employees not tying off.
Now, there could in some circumstances be a certain logic to this. If a general
contractor doesn't know the subcontractor's employees are not tied off, if it's simply a
short transitory violation, then perhaps the general contractor shouldn't be responsible,
but in this particular case, the general contractor knew it was going on and took no steps
to require the subcontractor to comply with the standard. So, we think that, you know,
this is a case where the general contractor clearly should be held liable.
So, one of the things that is happening after IBP is that certain attorneys who
represent employers in these cases now are becoming much more aware that this is an issue
that they could perhaps win on whereas they couldn't win before. So, we're seeing more and
more cases coming through the pipeline involving these issues, and as I said before, I
think we can anticipate there will be a number of other court decisions on this within the
next couple of years.
Are there any questions at this point?
MR. BURKHAMMER: Steve?
MR. COOPER: Very refreshing to get a -- a very quick and understandable response from
the Solicitor's Office. Thank you very much.
MR. JUSTH: You're welcome.
MR. BURKHAMMER: You haven't heard Noah yet.
Any other comments or questions?
MR. BURKHAMMER: Looks like you get off easy.
MR. JUSTH: Okay. Well, thank you.
MR. CONNELL: I would just highlight a couple of things. One is that in the IBP case,
the court said that -- the court really focused on the fact that the only contractual --
in their view, the only contractual control that IBP had over the contractor was this
right to terminate the contract, and the court highlighted several instances that were
documented in the record where IBP supervisors had attempted to get the contractor's
employees to follow safety requirements, and the contractor employees in no uncertain
terms indicated to the IBP supervisors that they were not interested in their advice as to
how to do their job.
I'd also note that in the IBP case, the contractor worked at night, and I believe they
were the only contractor in the plant at the time when they were in there.
So, in rather stark contrast to the typical construction situation where you have a
number of contractors operating, they were the only ones in the plant at the time, other
than the IBP -- some IBP supervisors.
The court also indicated and noted that there was less of a history of the
multi-employer doctrine in the general industry context than in construction. They noted
that it had been -- there were a couple of cases, but -- but they did note that there was
less of a history with the doctrine in general industry, and I would note that, as the
court did, that there are other appellate courts that have recognized the viability of the
multi-employer doctrine in construction.
So, that's just, you know, while the court said some -- as Bruce said, made some pretty
clear indications that they had some -- some doubts about the viability of the doctrine,
other courts have not hesitated to uphold it.
MR. DEVORA: Noah, you make a good case for construction sites. On the other way, in
terms of there are more people, there are more subcontractors on the site during the day,
and you're holding the general contractor with supervisory capacity, more things that
could get passed to him because of -- because of the job, because of the way the job is
being handled, and it's obvious that there's going to be -- unlike IBP, where there was
just a few people watching the process, and you're saying on big construction site where
there's many more contractors, are you saying, if I hear you correctly, that the general
contractor should be more aware of what's going on because there's more people than less
MR. CONNELL: No, no, I wasn't addressing that aspect of it. I was just noting that when
the court -- the court was focusing on the issue of control, the extent to which the
general contractor -- the -- the host employer in that case could control this contract,
and I think when you -- when you look at the application of the multi-employer doctrine in
general industry, one of the things that -- that sort of naturally comes to mind is, well,
how is this similar to the situation in construction, where it has a longer history, and
it's very dissimilar. That case was very dissimilar in this regard.
It speaks to -- to some extent, it speaks to the necessity, the need, for a
multi-employer doctrine. It speaks to how is this Occupational Safety and Health Act going
to be a viable tool for safety in the construction versus in general industry.
MR. DEVORA: I guess the problem I'm having is you're saying that, if I'm hearing you
correctly, you're saying that contractually or as a controlling employer, relegating that
responsibility to the general contractor and taking it away from the subcontractors, that
that's going to enhance on-site safety?
MR. CONNELL: No, no, no. What I mean -- what I meant to say was that in IBP, one of the
ways of looking at that situation was at one time during the day, you have one employer
with its employees. Then at a very specific time, basically all of the -- almost all of
those employees depart. Now you have a different employer coming into the premises to do a
I'm only suggesting that conceptually, that's a different picture than the typical
construction site much of the time when you have a number of different employers operating
at the site. That's all -- that's all I'm saying.
MR. BURKHAMMER: Bob?
MR. MASTERSON: Along that same lines, what I just heard was that the difference is that
my supervisor has to watch three plants when he's trying to keep an eye on that contractor
instead of being at one plant because he's got three communities he's overseeing. Help me
understand why there's a difference. My supervisor can be on three sites in Baltimore on
the same day and still held accountable for his contractor working on the north side when
he spent the second half of the day on the south side of town.
MR. CONNELL: Well, in terms of the -- there's no question that -- that the general
contractor in the construction context is those who are taking a role in overseeing the
safety of subcontractors. That's a big -- that's a big responsibility. That's a big role.
There's no question about it.
MR. MASTERSON: I don't think the question is that they're taking the role. OSHA has
imposed the role as a multi-employer, and again I ask you, what is the difference between
that plant supervisor that was overseeing that contractor working at night and my
supervisor during the day having three communities or the equivalent of three plants that
he's overseeing, and instead of being one contractor, it might be 25 or 30 that he's
trying to oversee?
MR. CONNELL: Well, the way -- under the -- under the doctrine, the first question is
has the general contractor taken upon itself the responsibility to enforce safety with
respect to other employers?
If the general contractor has not undertaken that responsibility, has not done that,
then the multi-employer doctrine does not apply with respect to the general contractor.
MR. BURKHAMMER: Bruce?
MR. SWANSON: I believe what I heard you say, Noah, is if the general contractor had not
by contract or otherwise assumed the obligation --
MR. CONNELL: Or otherwise, right.
MR. SWANSON: -- and that is indeed OSHA's policy.
MR. MASTERSON: Wrong. That is not the enforcement process that is being applied in the
MR. SWANSON: Gentlemen, I can tell you what OSHA's policy is. I just did. You are
apparently alluding to that rare circumstance when the field doesn't follow OSHA policy.
MR. MASTERSON: So, if that rare circumstance were to occur again, I can bring that to
MR. CONNELL: Yeah. And I'll be happy to pass that along.
MR. MASTERSON: Thank you.
MR. BURKHAMMER: Removing my acting chairman's hat and putting on my member's hat, one
of the issues that -- and we're currently -- I'm one of those issues in the pipeline that
you're talking about.
As an agent for the owner, as a PM or a CM, one of the roles of that party is to, no
matter how many subs there is, is to enforce the provisions of the contract that
subcontractor has agreed to.
In most cases, one of those provisions is for that subcontractor to provide a safety
and health work environment for his employees and comply with all occupational safety and
Is that language -- and what I thought you said. Is that language then construed as the
agent for PM, CM, then has assumed the responsibility, as you said, of monitoring or being
responsible for the subcontractor's safety program, even though his job primarily is to
enforce all aspects of the contract?
MR. CONNELL: Well, one of the things that IBP tells us is that we have -- you can't
answer that question based on that alone. You have to look at what the enforcement
So, for example, in IBP, where the only enforcement mechanism was termination of the
contract, IBP said that's not enough to establish control. So, you'd have to look at --
you'd have to look at the extent to which the general had the ability and the right to
enforce particular safety provisions right then and there when -- when infractions arose.
MR. BURKHAMMER: Bob?
MR. MASTERSON: So, if I heard what you just said correctly, if I go back to my contract
and take out all provisions that relate to the contractor complying with the state and
local safety procedures, that reduces my responsibility?
MR. CONNELL: The -- well, the body of case law that existed before IBP, most of which
is in construction, says that you look at both the contract rights and also the actual
practice. So, even if you didn't have the contract right to enforce, but as a practical
matter, as a day-to-day matter, the general contractor did in fact enforce those
provisions, they would be in the same position as -- as someone who had that written into
So, it's both -- you look at both what the contract says and what the actual practice
is in the field.
MR. MASTERSON: Now, please correct me if I'm wrong here. What I just heard was if -- if
I instruct my employees that they're not to enforce safety with their subcontractors, and
there's no provisions in my contract that says that they're supposed to, then they keep
the responsibility on their own plate?
MR. CONNELL: The only exception to that would be -- and again this comes out of the --
the -- the case law. If the general contractor is involved -- if the -- if the -- the
entity that's been cited, rather than using a term "general contractor", which
implies certain abilities, but if the entity that was cited has control over basically
just about everything that's going on at that site, and many of those things that they do
control affect safety, then there are some cases that say in that instance, that's a
MR. MASTERSON: Now was that before or after IBP?
MR. CONNELL: That was before IBP.
MR. MASTERSON: Now, how is it after?
MR. CONNELL: Well, that's a good question. I -- I don't know the answer to that.
MR. SWANSON: Well, those were -- those two decisions that we are referring to are two
different circuits, two different parts of the country, one outside of Chicago, is it not?
MR. CONNELL: Yes.
MR. SWANSON: And this is out of the District, and one was a construction case, and one
was not, although there was a lot of verbiage in there that indicated what the court would
do if it had been a construction case in front of it, but -- but it is unknowing at the
One of the things that you are referring to, though, by innuendo or otherwise, is some
negative unintended consequences of what's happening in the -- in the -- because of the
multi-employer doctrine and how it is misunderstood or misapplied or mis-something, and --
and that is that there are a number of people out there in the construction community,
sometimes your corporate lawyers and sometimes others, that are -- that are telling
general contractors, safety people, exactly what you just referred to, and that is back
away from safety issues, back away from safety on the job site, and you will minimize this
company's liability, and that in the minds of many of us is a very negative unintended
Nobody wants to see that happen. There must be somebody in control of a construction
site which is how it differs from a meat-packing plant at midnight where you have a number
of subcontractors out there, and somebody has to take some responsibility for coordinating
that. Most of us think that, and historically, that has been a general contractor or a
prime, and because of the animosity building up over this multi-employer policy situation,
we are backing away from a place where most of us want to be, and we have to figure out a
way to get back there.
MR. DEVORA: And -- and let me jump in on that comment. Personally, we would -- as an
employer, as a general contractor, you know, we're fully aware of our responsibilities,
and I think the reason my boss sends me here, and I come to these things, is not to
promote any doctrine or policy, but it's to prevent illness and injury and fatalities on
the job sites, and -- and it's kind of like you penalize -- you're preaching to the choir
here when you -- when you cite a general contractor that has that attitude because you're
downstreaming it and taking that responsibility from the specific employee and
employer-employee relationship, and you're just kind of washing it down the line, and
that's where the responsibility starts, and the guy that gives you the paycheck is the guy
that should be responsible that you get to work, that you get home the same way you got
there in the morning, and by just downstreaming it, I think we're missing the main point
here of preventing injury and illness, and it's got to start right there at the beginning
at the subcontractor level and not -- and not get lost in all the controlling contractor
and general contractor language.
MR. RHOTEN: Just a comment on the scenario that Bruce mentioned, that the owners might
-- or the contractors take a hike and leave the subcontractors on their own.
It seems to me that that's what happened in the petrochemical industry before they
passed this process safety management standard, that you have contractors come on job
sites. The owner would put them at arm's length in areas that they didn't have any
information on, and I think the language in that standard addressed some of these issues
to some extent from -- at least from the point of view that the owner is supposed to make
the contractors and the employees part of a whole safety system, and maybe that's
something that we need to talk about outside of that particular industry and get some kind
of language like that tossed around and see if we can come up with some ideas on it.
If you have a scenario where they can't take a walk and not take any responsibilities,
there's going to be a lot of problems in the future.
MR. BURKHAMMER: Bob?
MR. CONNELL: I would just emphasize that while control -- I mean IBP is a case that
addresses the control issue, and many of the questions that always come up are the
questions about the control issue, but that's not -- if -- if -- if a general contractor
is a controlling employer, that doesn't mean that they're automatically -- as a legal
matter, that does not mean that they are automatically responsible for any violation
that's committed by a subcontractor.
That's just the first step in the analysis. There is a second step, and the second step
is has the controlling employer, controlling contractor exercised due care in meeting its
responsibilities, and the due care that is required of that controlling contractor is not
as high of a standard as it is for the subcontractor who's created that hazard in the
So, it's -- as a legal matter, it's not strict liability. There is a standard of care.
If the standard of care is met, then the controlling employer is not legally responsible
for that violation.
MR. BURKHAMMER: Owen?
MR. SMITH: Well, I heard what you said, but does that mean that he gets cited, that
he's got to prove that he's done everything?
MR. CONNELL: No. OSHA has the burden of proof to make out a case that shows that they
-- that the controlling employer did not in fact meet its standard of care. The burden of
proof is on the Secretary.
MR. SMITH: So, if -- if the prime has a program, and he asks everyone to follow a
safety program, and there is an accident, then the prime will not get cited. They will
cite the sub who's responsible?
MR. CONNELL: If it's a real program, in other words, it's a good program on paper, and
it's a good program in the field, it's a program that's enforced, then, you know, that --
that goes to them meeting their standard of care. If they've carried out a good program in
the field, the fact that a violation takes place that was created by a subcontractor does
not make them liable as a legal matter.
MR. BURKHAMMER: Bob?
MR. MASTERSON: Noah, the truth of the matter is that there's been a very strong effort,
whether it's announced or unannounced or whether it's been admitted to, that there is not
enough compliance staff in the country to get around to all the job sites, and it has been
flat out told to me by an administrator from your organization that the only way they're
going to get to everybody is if they make general contractors their police force.
The truth of the matter is the general contractor is being held liable, and he's being
held liable to a much higher degree than the contractor is, and that's the common practice
MR. BURKHAMMER: Felipe?
MR. DEVORA: Has there been directives or instructions for compliance officers on this
MR. SWANSON: Yes. There is a FOM which is the resource manual for the compliance
officers, and we had a discussion in Pittsburgh last week that you were in attendance on
where it was discussing cleaning up that FOM or amending it and perhaps giving more
clarity to it. Apparently some people misunderstand it the way it's presently written. So,
we might need more clarification.
MR. BURKHAMMER: Steve?
MR. COOPER: There's lots of sides to this story. You haven't brought up the hold
harmless clauses yet. The FOM that Bruce has talked about isn't very clear. I've looked at
that compliance officer manual to try and resolve this. It's gone around about like this
I don't know, Mr. Chairman, if you want to do this, but maybe there should be some
group to make, if not a proposal, at least to OSHA to kind of clean up the area, but
there's two sides to this story. We've got the owners in here, and we've got the general
Our complaints have been from subs and the hold harmless clauses. On the other hand, if
the sub causes the hazard and an accident occurs, as we all know, the employee will go
after the general because he's a third party, and he can't go after his own employer
because of workers comp.
On the other hand, I can give you as many stories as you can give me where the general
caused -- the general's people caused the accident, and the hold harmless clause
alleviated the general from responsibility.
So, I don't know, Stu, if you want to -- that may be an interesting committee.
MR. BURKHAMMER: I think we're to the point where we could beat this up the rest of the
day. The chair will take into consideration a workgroup on this issue,, and I'm sure we'll
have eight or nine volunteers, and we'll -- rather than spend more time this afternoon on
this issue, I think we'll discuss tomorrow establishing the workgroup.
So, with that, thank you very much for coming and sharing with us your thoughts.
And here's Berrien back for the third time, hopefully without interruption this time.
MR. ZETTLER: I believe, Mr. Chairman, we were on Page 8 of the -- of the hand-out.
MR. BURKHAMMER: I think we were still -- we have one final -- is there any more
questions on 1A through 1.1G?
MR. BURKHAMMER: Okay. Now proceed.
MR. ZETTLER: Okay. I -- I -- I think that I had started to say on 1.2A that although
not specifically construction, it could very well involve construction because we have an
One of the objectives is to -- is to also take a look at the federal sector. The agency
will select, has not yet selected, although we have an indication as to what -- as to
which three agencies this is likely to be, but the agency -- but OSHA will be selecting
three federal agencies wherein we would also state our objective of reducing by 15 percent
injuries and illnesses in those three agencies.
Now, some of those agencies, a significant amount in some of those agencies, may very
well be construction-related injuries and illnesses because some of those agencies, many
federal agencies, do a lot of construction, and -- and if one of those agencies doing a
lot of construction is selected for this particular objective, then there could be also a
significant construction aspect to -- to the accomplishment of this particular goal.
So, that finishes essentially -- that finishes the -- the statement of the objectives.
The next thing to do is look at the strategies by which the agency hopes to achieve
those objectives. I only want to focus on a couple of these. I don't -- I don't think it
would be worth the committee's time to look at every single one of these strategies, but I
would like to focus on two or three of them.
The first thing that I'd like to focus on is the fourth bullet point down, which says,
"expand the use of non-rulemaking and cooperative approaches". For the two
construction objectives, namely the objective of reducing injuries and illnesses by 15
percent within the construction industry as well as reducing fatalities by 15 percent
within the construction industry, from the national office point of view, from the
Directorate of Construction point of view, our contribution to the accomplishment of that
objective or those objectives will be very much focused on non-rulemaking and cooperative
We have already undertaken a number of pilot projects which some of you may be familiar
with, and we will -- and we're exploring undertaking others.
So, we very much intend from the national office perspective again, we very much intend
to encourage non-rulemaking or cooperative ventures that we can undertake with various
organizations, both labor and management, within the construction industry.
We hope that those will be successful. We think in long-term, they will be successful
because we believe that most of the organizations, both union and management, do have an
interest in -- in -- in safety and health and will cooperate with the agency in putting
into effect some of those programs.
MR. BURKHAMMER: Steve?
MR. COOPER: I don't know how much cooperation you're going to get from us on that
issue. The cooperative programs are all for that.
MR. BURKHAMMER: Steve, could you define "us"?
MR. COOPER: Unions.
MR. BURKHAMMER: Thank you.
MR. COOPER: Did I say that?
MR. BURKHAMMER: Just a point of clarification.
MR. COOPER: Us, the unions. OSHA in the last few months has signed some cooperative
agreements that are not what we consider in accordance with the Occupational Safety and
Health Act. For instance, they are not abiding by the Act. I can give you case -- cases
where this is true.
For instance, from the administrative areas where the compliance officer cannot inspect
the job site unless he notifies the people they have the contract with. Some of them are
crazy-driven. You have in here some agreements without the acquiescence of the employees,
but you will notice, and you're getting to it in a few pages up, that one of the outcomes
of Goal 2.3 is enhanced worker involvement in all aspects of safety and health in the
On the other hand, you signed an agreement with no employer acquiescence to that. It's
-- it's in direct violation of what you're saying. We are very upset about it, and
regardless of the -- this 15-percent reduction which we'd all love to see, it's got some
people upset, and I happen to be one of them.
As long as those agreements are sensible, practical agreements, we would -- we would
pursue that and be happy with it. Some of the agreements that I've seen are really out of
MR. BURKHAMMER: Berrien?
MR. ZETTLER: Thank you for that input, Steve. We -- we -- clearly the agency -- I mean
we -- we -- I -- I don't know exactly what you're referring to, although I suspect maybe I
know one of them anyway, but -- but -- but this is -- this is a period of -- of trial. I'm
sure that there -- that we will make some mistakes in -- in some of the agreements we --
we enter into, but on the other hand, I think that -- that the entering into agreements is
-- is the way to go.
We cannot -- we can't accomplish this 15-percent reduction, the agency believes, unless
we get cooperative arrangements with -- with industry and labor to accomplish it.
Otherwise, we can't -- we can't get it through sheer enforcement. We just can't do it.
Okay. The next one that I wanted to look at a little bit is the -- the next bullet
point, which focuses on enhanced targeting. ACCSH, as I understand it, ACCSH has
established a workgroup to look at targeting.
We're also going to be looking at targeting. The agency's also going to be doing that
because it becomes crucial if we're going to spend our resources effectively, if becomes
crucial to the accomplishment of our objectives that we -- that we spend our resources in
ways that can be productive, in ways that can actually bring about the reduction of
injuries and illnesses, and -- and the key to that in construction in particular, the key
to -- the key to that is -- is
-- is targeting, and we -- as all of you know, the agency over the years, some of you
have participated in this, the agency over the years has had a number of groups look at
alternative scheduling procedures and that has not been a -- a real successful undertaking
because we -- we still do not have a good way of focusing on the -- the most injury- and
illness-prone workplaces in the construction industry. We don't have a good way to do
that, unlike in general industry, where we can have a little bit more success.
The next -- the next point I wanted to -- to look at is -- is a corollary to the -- to
the cooperative approaches which is the very next bullet point, where it says,
"engage the occupational safety and health community in identifying and addressing
significant workplace hazards and instituting process improvements to ensure quick
response to emerging issues".
That again is the corollary to the other part. We believe that -- that this is the
whole leveraging concept where -- where we engage the community, the construction
community in the process of also working toward the reduction of injuries and illnesses,
and that's really all I wanted to look at on Goal 1.
Are there any comments or additional questions relating to that? If not, we'll move on
to Goal 2.
MR. ZETTLER: Now I am not going to spend very much time on Goal 2 or Goal 3. I'm just
going to hit a few highlights because the meat of -- of the -- of what the agency is
trying to do in terms of objectives outcomes, in terms of reduction of injuries and
illnesses, is found in that first one.
There are support -- there is -- there are supporting objectives, however, in -- in
Goal 2 and 3. So, I'd like to look -- I'm not -- again, as I say, I'm not going to look at
all of these, but I would like to look at a few of them, and the first one I'd like to
look at is 2.2A on Page 11, and that is to make all standards, regulations and selected
reference materials available in a user-friendly manner on the OSHA home page.
We've already started doing that. We have recently redesigned the home page for any of
you who have looked at the OSHA home page, and we will have later this afternoon, Mary Ann
Garrahan will be in to
-- to go through what all we're trying to do with regard to this 2.2A goal of making
the OSHA home page a usable -- a usable resource for -- for anybody in the construction
The next one that I'd like to look at is I'd like to just look at one of the strategies
which goes along with this -- maybe a couple of the strategies that go along with this,
not specifically that 2.2, but this -- this whole -- the whole of Goal 2, which is to
promote programmatic and systematic approaches to safety and health in the workplace.
One of the -- one of the things that the agency is going to do is stated in the third
paragraph -- excuse me -- the third bullet point under Strategies on Page 11, and that is
to assure that new OSHA products are readable and easy to understand, meaning by that --
excuse me -- meaning by that that not only the standards will be in plain English or plain
language, I guess we're supposed to say to be politically correct, are in plain language,
not only the standards but also directives, letters of interpretation or any other
document that's produced by the agency. All will have to meet a plain language standard.
We -- we're sending a lot of our people, for example, to plain language training. There
is a training course on plain language which gives people suggestions as to how to make
their language less bureaucratic and more -- more understandable by the general public.
So, -- so, as I say, that's -- that's intended to support this.
Another one I'd like to do is on Page 12, up at the top of Page 12, first bullet point,
which is what -- the one that Steve referred to a minute ago. It really is important to
the agency, and we believe that the success of safety and health is dependent upon not
only employer cooperation and involvement but employee cooperation and involvement, which
means that we will be seeking from our stakeholders, both employer and employee, we will
be seeking involvement in -- in not only in our -- our record -- our rulemaking procedures
but also in our -- in our standards -- in our directives or interpretations processes as
well. We will be attempting to -- to get those out for comment by -- by affected people.
One of the other things that we will be doing is stated in the second bullet point. We
will be attempting to encourage the development and delivery of training for workers and
employers in the skills necessary to involve workers.
You know, it's not immediately apparent to everybody how they should go about involving
workers in the safety and health process. Many companies know that, but many of them
don't, particularly smaller employers, and we're going to try to -- to find ways of -- of
helping the smaller employers in particular devise methods of -- of making sure that their
employees have a role to play in the implementation of safety and health in their -- on
Some of these things we've not yet worked out the details of how we're going to do it.
One of the -- one of the folks in between at the last break asked me -- noticed that it
had "draft" down at the bottom of the page, has "draft, revised strategic
plan", and the question was how long is that word "draft" going to stay on
there? When are we going to see a final, and my answer was probably it will always be
draft for the whole -- up until 2002, we're likely to be still living with a draft one,
although each draft is a more explicit and accurate statement of what the agency hopes to
But as I had mentioned to you in the introductory comments, we view this as a living
document, as something that's going to be adjusted and changed according to the vagaries
of life, and we will -- we will be making adjustments and changes.
So, there will probably never be a draft final -- excuse me. There will never be a
final which will be unchanged through the year 2002 because we believe that there will
always be changes.
So, what you got to look for is the latest data, which will be posted, which will be
posted. I don't know if it is now right now. There -- there are a few documents posted on
the home page relating to this, but I don't know that this particular document has been
posted yet, but it will. It will be.
Okay. Unless there are any further comments or questions, I'm done with 2.
MR. BUCHET: Mr. Chairman, back to 2.2A. In -- in the rush to go to the Internet, are
you not going to do anything with the CD-ROM, which before the present version was
extremely useful, and if that could be married the relatively old-fashioned connection to
the Internet would -- would be very useful for a great many people?
MR. ZETTLER: You know, I guess I -- I -- my only comment is that I'm just scared to
death to throw myself in front of a freight train coming down the tracks, and
unfortunately, there -- the -- I say unfortunately. Unfortunately for those who -- who
prefer the older ways of doing things or find it easier to use the older way of doing
things, that's going to be difficult.
We -- we -- we do intend -- the CD-ROM is a relatively inexpensive undertaking for us,
and there is no plan to stop the CD-ROM. However, as you know, and as you suggested, the
CD-ROM does occasionally get reformatted, and the appearance of the material on the CD-ROM
may not resemble the way -- you know, may not look the same as it did before.
However, if -- if that's not a problem, if -- if it's just the maintenance of the
CD-ROM, there is no plan to not continue to produce the CD-ROM.
MR. BUCHET: The format of the presentation of the material, if you keep to the idea
that it's going to be user-friendly, then you have a real collision with people who are
pushing new technology because a lot of us haven't got the time to get the latest Web
browser and figure out how the pretty buttons work, whereas we had figured out how to
search with the old CD-ROM, and there is a question of reliability.
Some of the other things on the Web site may be a little confusing, as having a button
that says construction that's about that big --
MR. ZETTLER: Right, right.
MR. BUCHET: -- and putting things up like interpretive quips, so we can find them
relatively simply and in words that we recognize, not necessarily that help the indexing
system in the computer.
MR. ZETTLER: And we are continuing to work with the -- with the -- both the contractors
and OCUS, our -- our Salt Lake office, that has primary responsibility over the Web page.
We recognize that there are -- we're not where we wanted to be yet, and we -- we also
believe that it's not currently intuitive. I mean you don't know where construction is
unless you read the -- the stuff in parenthesis under outreach.
I mean, you know, it -- it would not occur to me to look under outreach to find
construction, but that's where you have to look the way the -- the way the home page is
But we're in discussions to fix that, and -- and I hope that we will continue -- I mean
the thing changes all the time as we make these -- these adjustments.
MR. BURKHAMMER: Bob? Please use the mike closer to you.
MR. MASTERSON: Okay. I just wanted to point -- now I'm very comfortable using the Web
browser and the Internet, going to the home page and using the CD-ROM.
One of the advantages, because I travel so much, was that with the older version, I was
able to download the entire CD-ROM on to my hard drive and that way I didn't have to carry
a CD with me, and it's not just the CD, it's also the CD player, and from a traveling
standpoint, that was -- that was very much a plus for that CD-ROM.
Now I can't load that. So, I have to carry my CD with me and the player with me in
order to make sure that I can access that data. That was a real advantage before.
MR. ZETTLER: Right, and that -- you know, that's the price of progress. The more -- the
more data we get on there, the more stuff we load on or try to load on -- we don't -- and
the CD-ROM does not have everything that's on the Web site now even, but -- but to the
extent that we continue to add material to the CD-ROM, it -- it starts -- you know, it
gets bigger and bigger and bigger. I would not be surprised if we -- we had not done this
yet, we made the decision not to, and that's why we've kept stuff off that's on the Web is
to go to two CD-ROMs, then you -- then you'll really have a problem.
MR. BURKHAMMER: Larry?
MR. EDGINTON: I didn't know if we were going to talk about this under OSHA's Electronic
Information System, which is later on in the agenda, but I'm telling you you've really hit
a hot button with me on the CD-ROM business.
I keep hearing that -- that my government and its agencies want to become
customer-driven, and I'm here to tell you that you're going the wrong direction with the
CD-ROM. What you ought to be thinking about is what is the lowest common denominator in
terms of the technology which exists in a typical construction workplace, and you are not
I can tell you that where I work, I won't say we've got everything that's
state-of-the-art, but we're damn close to it, and what we have discovered with our system
because of the Internet access that we choose to use, we have a hell of a time using the
CD-ROM, and I'm figuring that if I can't do that, I know my local unions can't do that.
They're telling me that. I know my contractors who are trying to do the right thing have
got -- maybe they've got a computer in a job site trailer, and they've got one phone line
going into it, and they don't want to have to tie the damn thing up with -- with Internet
You're making my head hurt. I mean it's just not common sense. You're doing the wrong
things. You know, if you want to make all these other things available, that's wonderful,
but don't abandon where most people are at.
MR. BURKHAMMER: Let's hold further discussion on this issue until Mary Ann presents the
electronic information system. I think that is a better place to present that than
continuing to put Berrien up over the Web page.
Now I'd like Berrien to conclude with a brief status on the ergonomics standard.
MR. BUCHET: Can I just ask -- add something else about the computers, if I might?
MR. BURKHAMMER: Last one. Go ahead.
MR. BUCHET: And it has nothing to do with anything that you've covered, but it's
something that bothers me terribly.
On Page 13, and I've been talking about this every chance I get with anybody in OSHA
that I can get to listen, is under the outcome goals under 3.1, 3.1C, where we're talking
about resolving 75 percent of all OSHA Section 11C cases within 90 days.
What I'm -- what I'm trying to figure out there is that that seems to be an activity
which is occurring outside of the workplace, and, so, what that's saying to me is that
OSHA has given up on the notion of trying to modify employer behavior so as they don't
fire people in the first place for complaining about safety and health because that's what
we're talking about here, and we're talking about trying to have workers develop
confidence in a system where we have an Act supposedly designed to protect and promote
their safety and health in the workplace, and at least with respect to construction
workers, when you tell me you're going to resolve my complaint within 90 days, well, a lot
of good that does me.
If you're talking about trying to instill confidence within people, it seems to me one
of the things you need to be talking about is trying to modify the behavior of the bad
actors so they don't fire people in the first place.
MR. BURKHAMMER: Okay. I think, Larry, maybe they're going to try to do what you're
suggesting under 2.3, enhanced worker involvement.
MR. BUCHET: I read that, too, and I can only say I hope, but --
MR. BURKHAMMER: Yeah.
MR. BUCHET: -- all I'm saying is if you're dealing with an effect here rather than the
MR. BURKHAMMER: Right. Okay. With that being the last comment under this section, I
think Berrien would be available today and tomorrow if any of you have any specific things
you'd like to ask him. He could be around to answer them.
We'd like you to -- if you would, please, to give us an update on the ergonomics
MR. ZETTLER: With respect to the update on the ergonomics standard, I could not get
enough information to do that in the short time that was available to me. So, what I have
done, if it's okay with the committee, what I've done is I've asked our Director of Health
Standards, and he's agreed to do this, to -- to come in, I believe it's at the 11:00 slot
now open tomorrow. He will come in and talk to you about the -- update you on -- on the
ergonomics standard as well as on a fiberglass initiative that we're dealing with.
If that's not a good time for the committee, he -- he told me that he is flexible as to
other times, if I can get back with him on that.
MR. BURKHAMMER: No. That's an acceptable time.
MR. SWANSON: Let me, if I may, give a little clarification for those that are curious
The question regarding the present status of -- of ergo came up after the meeting
started here this morning, and, so, I asked Berrien if he could gather some information
and give us an ergonomics update.
Most of the folks in OSHA that are engaged in the ergo issue right now are out at an
ergonomics stakeholders meeting somewhere else in the country. So, Berrien was unable to
get the information, but the head of the Health Standards Unit is -- is up to speed on
this, and, so, I think that's a good substitute at 11:00 tomorrow. Thank you.
MR. BURKHAMMER: Thank you, Berrien.
The next subject on the agenda is Subpart M, Fall Protection, Jule Jones. Is Jule here?
She was here.
MR. SWANSON: We seem to be lacking at the moment both of the next two folks on the
agenda. They both had commitments elsewhere. We're going to go retrieve one of them right
now. She should be here in a couple of minutes.
MR. BURKHAMMER: Why don't we take a five-minute break and then return? Be back at 3:15.
(Whereupon, a recess was taken.)
MR. BURKHAMMER: A couple of things for the committee. This morning, we asked if we
could get a copy of the offices that have been reinvented, and you were supplied that
after lunch, so make sure you all have that copy.
I would like to have your comments on the 170 form by start of meeting tomorrow
morning, and if we need to bring someone back to discuss those changes, we can see if we
can do that.
MR. SWANSON: I was -- am I on? I was told that there was a page missing from that --
MR. BURKHAMMER: Also, we passed out a synopsis of the Strategic Plan to the committee,
so you have that. Also, we were supplied the cards, both in English and in Spanish. So,
I'll pass those around for you to take those. The heat stress cards.
MR. MASTERSON: Bruce, on these heat stress cards, are we free to reproduce those?
MR. SWANSON: Those -- if you'll look, Mr. Chairman, those are not our cards. These are
copyrighted by the Center to Protect Workers' Rights, and you cannot copy copyrighted
material without permission of the --
MR. MASTERSON: I misunderstood.
MR. SWANSON: Right. No. I understand what you understood, and I wanted to point out
that those are not OSHA's cards. I'm sorry.
MR. BURKHAMMER: All right. We're ready to proceed with Mary Ann's presentation or
Jule's? Mary Ann's. All right.
What we're going to talk about next is the Electronic Information System. Mary Ann,
|OSHA's Electronic Information System
MS. GARRAHAN: Thank you. I'm Mary Ann Garrahan from the Directorate of Compliance
I'm going to give an overview of OSHA's Web site with a construction standard
compliance interpretation to it. I'll be mentioning the information that is already
available on the site and also things that we have planned to do to improve the
presentation and organization of the material.
We have been and continue working on various projects to improve the design and
accessibility of safety and health information. Some of our efforts have already been
implemented, and many more will be completed in the coming year.
I'm happy to say that we've received very good feedback so far from the public on our
improvements, and we hope to build on this with input from users of the site.
If you'll put the lights out, we'll show you why our -- can't? Okay. Then we'll do an
overhead, showing OSHA's main --
MS. GARRAHAN: A project that OSHA is actively working on is the redesign of the Web
site. As some of you are probably aware, the Web site, which is located, by the way, at
www.osha.gov, has undergone some changes in design as well over the last month or so.
One of the major changes is the unified OSHA Web page. Previously, the national office
and Salt Lake office have maintained separate Web pages containing various information.
The two offices now collaboratively maintain OSHA's Web page which benefits the user by
providing a single source of OSHA regulatory information and outreach material.
Although information is still maintained on two separate servers, the linking between
them is a seamless form for the user.
OSHA's new front page, which is shown on this overhead, is the newly-designed gateway
through which all users will access OSHA on the Web.
As you can see, the information is organized logically and allows the users to jump to
specific databases of information, such as news releases, publications, directives,
standards and interpretations.
Each grouping contains a set of related documents and information. The regulation and
compliance links, which I'll show you in a few minutes, holds all of OSHA's regulatory and
compliance-related materials, such as standards, interpretations, preambles, directives
and compliance guides.
The organization of materials also allows us within OSHA to better maintain the
information on the Web site. Particular items that I'd like to point out on this is at the
top of the page, you can see there's a new button, and if you hit the new button, all the
way at the top, this takes you to a page listing significant documents and information
recently added to OSHA's Web site, and if you -- if you click it today, you'll see that it
contains information as recent as yesterday's Federal Register announcement of the Federal
Register notice of a public meeting for the Respirator Change-Out Schedule.
The button at the top of the page takes you to a page providing an alphabetical price
index. The index includes everything from specific safety and health issues, such as lead
and cadmium, to types of information, such as interpretation of OSHA standards and OSHA
posters. That's another quick way of getting to information.
At the bottom of the page, in the grouping outreach, you'll notice that the
construction is listed. This is the main construction page that I'll be showing you on the
This is the current main construction page. This page will be undergoing some
renovation in the near future to improve the organization and breadth of information
listed on the page.
It currently provides the users with links to the 1926 standards. Technical link pages
for specific construction-related hazards and publications of interest to those in the
construction industry. This page, in conjunction with the technical links page for
construction and the planned regulation and compliance link page for construction, which
I'll be showing you, should help put all of OSHA's construction-related information at the
fingertips of the user.
The next slide, if you hit the button on the main page that's called Regulation and
Compliance, you go to the regulations and compliance links page. This slide shows the page
as it exists on the site, except for the listing of memorandums of understanding, the
MOUs, the rest of the way down. Everything else is up there, and I'll explain a little bit
in terms of what we have.
The OSHA standards, if -- if you can search those by standard number or by topic area,
and I'll get you into the standard, and along with the standards, we have our
interpretations. Right now, we have all the interpretations listed, and there's many
What the plan is, is that when you hit on to the regulations, each paragraph of the
standards will have a pop-up window, and what you will do, it will take you to the
specific interpretations that relate to that paragraph, and also the case law that relates
to that paragraph, the preambles that relate to that paragraph, any OSHA memorandum or
policy that enhances the understanding of that particular paragraph section, and when I
say it takes you to case law, it takes you within the case law, within the preambles,
within the materials, such as when we have letters of interpretation, many times our
letters cover more than one paragraph of a standard. So, we'll take you exactly to that
section of the letter that is being interpreted.
It also gives you the information about the development of the process of developing a
standard and unified agenda, the information on the collection requests, and it gives a
listing of our compliance directives, everything that I mentioned that you can get to if
you look at the regulations and linking to all the other information.
You have another choice. You might not want to start with the regulation. You might
want to go directly to a directive. So, you can go directly to our directive button and
get that information, pull it out by subject topic area or a number search as well.
So, what we're trying to do is make it easy for the user to have several different ways
of accessing the information. As you can see on the listing there, we have compliance
guides, our field inspection reference manuals, our Review Commission decisions, our
interpretations, and our QUIPS.
Now our QUIPS -- I don't know how many of you are familiar with those. Those are what
we call our Quick Interpretive Points. We take our letters of interpretation, and we
condense those so that you have the meat of the interpretation, and we identify them by
the paragraph level. So, again, if you were particularly interested in a certain section
of the standard, and you wanted to know quickly what our interpretations are, you can
refer to our Quick Interpretive Points, our QUIPS.
Right now on the site, they -- since we converted to our new home page, there was other
programming work that needed to be done. They're not currently up on the system. They are
on the CD, and my understanding, the QUIP should be back up on the system any day now.
Now what we're working on, that's under development, is to put back up our memorandum
of understanding. Now this particular site, what we're interested in is our jurisdictional
memorandums of understanding.
The safety and health topics, I'll be showing you the list of topics next. The emerging
issues. These include three sections. The first is the compliance information and
initiatives which will highlight new or changing compliance information for existing OSHA
regulations and new compliance initiatives for emerging safety and health topics, some of
which we may not have a regulation for.
The current rulemaking page, I'll be showing you, and the emerging health and safety
topics, which offers an alphabetical list of health and safety topics that OSHA has
identified as emerging areas of concern or areas of special OSHA emphasis.
And, finally, we have the frequently-asked questions, and this page provides links to
questions and answers for a number of topics, and what we've done is we've gone through
our system, our current directives, our publications, wherever we have had
compliance-related questions and answers, putting them on a page listed by topic areas.
So, again, if somebody wanted some quick information on standards, it may be that their
question is answered in one of these Q&As, and for construction, for example, we have
Q&As for permanently confined spaces, fall protection in construction. We have the
mechanical car presses, the scaffolding construction industry, general requirements for
scaffolds, training requirements, etc. So, this is all being pulled together and being
One of the things that we continue to work on is the linking of information and the
implementation of the new database which will house OSHA, makes available through the
Internet. The new database will allow us to provide some more useful search capabilities
and better file linking which I'll discuss where you actually will be getting within
documents to where you want to specifically go to versus just a listing of the -- for
example, the interpretations. They'll actually take you to the ones that are relevant to
that part of the standard.
The users should benefit from this activity in really two primary ways. First, the
users will be able to access up-to-date interpretive responses more quickly, and,
secondly, the linking capabilities will give the employees and the regulated community
more confidence that they are scanning the full range of OSHA information on any
I'd also like to point out the interpretation is an area where we have put considerable
effort into. Many of you are familiar with our -- our old system. Probably if you used
that system know that if you would -- if you wanted to search a topic area, you would have
so many hits, that it would be very difficult to feel confident that you weren't missing
What we're trying to do is put an extensive gatekeeping system together so every time
we have a new interpretation, we're actually reviewing what we already have up on site and
looking to see is this letter offering some added value because we don't want to clutter
our system with every single letter of interpretation. We want only added value
information, and what we do is we will take down old information if we have better
information. The users of the system have more confidence in the system if they see that
it's more current up-to-date information in the system. If it's a 1998 letter versus a
1984 letter, they feel like, you know, OSHA must be maintaining the system.
So, we have an extensive gatekeeping system to also go through, and whenever there's a
change to a standard, such as the scaffolding standard, we have the part of the standard
that has been changed. That affects interpretation. So, that requires great effort to go
back and review all our letters and make changes to the sections that we have to change as
a result of the changes in the standards. So, we're trying to be on top of that as well.
Many callers to OSHA now are getting more sophisticated because they have already made
a search of our system and either they have a search question or it's not clarified there,
and we find that that's very helpful because our system is actually being able to help
people help themselves, and what we're doing is we're dealing more with sophisticated
questions that we can know the answers to and share with everyone.
The next slide is our regulations and compliance links topics. This is also -- these
topics listed on the slide, each of those have its own page, providing users with
regulations and compliance information on a particular topic.
The mainstay of each topical page will be standards, preambles, directives and
interpretations. Applicable standards, preambles and directives will be listed on the page
while interpretations will not. The interpretations will be provided in the search that
develops. When that user selects interpretations, a search is performed based on the
pre-selected key words.
Users will be able to select from a number of databases and perform a search based on
pre-selected key words. The pre-selected key words used in the default searches are chosen
so that the users get the most possible hits without catching documents unrelated to the
We believe these pre-defined searches will enable the most novice users in finding
information relative to their particular worksite hazard or situation.
The next slide -- you know, the next slide illustrates the regulations and compliance
links construction page under development. By accessing this page, users should be able to
access all compliance-related information about construction.
For this page, along with the main construction page and the technical links
construction page, which I'll show you next, it provides users with access to all relevant
construction information on the Web site.
At the top of the page, you can see hot links to standards, the preambles, directives,
interpretations. A topical search, and this is the section that allows users to select
databases they wish to search, then a key word search is performed.
The technical information is a link to the technical links page for the topic, which
I'll be showing you next. Now related topics, this section is used to provide links to the
regulations on topics relating to the different subject pages.
The next overhead is the technical links construction page. As you can see, the
technical links construction page provides four distinct sections, the related topics,
standards, preamble and OSHA directives.
Once the regulations and compliance links safety and health products pages are on line,
then technical links page will link to the regulations and compliance construction
What's under compliance on this page will be the page we just finished reviewing. When
a user turns to a technical link page to a compliance page and vice versa, the move will
be seamless. This organization will allow those within OSHA most familiar with standards
and compliance information to effectively monitor and maintain the compliance information.
We're really concerned about, you know, gate-keeping what goes up on the system, and
then what we put on the system is maintaining it as well.
The next slide, the last page that I'd like to point out, and this is the current
rulemaking page planned to be added to the regulation and compliance links page. Right
now, what we have up on the system is the unified agenda that's published in the Federal
Register, and that can be very cumbersome in terms of trying to find out information.
This page provides information about the current OSHA rulemaking, and the current
rulemakings are listed alphabetically with the status, such as long-term action, pre-rule,
proposed rule, final rule indicated.
The page will not only allow users to quickly find and determine the current status of
a rule but provide links to abstracts, ANPRMs, NPRMs and final rules. This page will be a
one-stop shopping for users who are looking to find out OSHA's actions on rulemakings.
We believe that users will benefit greatly from this organization and will ease efforts
in locating the appropriate Federal Register published notices.
We are hopeful that these efforts will offer useful information to employers and
employees, and that this presentation provides you with a good look at what we're planning
for and what we have right now on the OSHA Web site, particularly related to the
regulation and compliance information.
There's also a lot of other information on the site that relates to the publication,
the training information, etc. If you have suggestions for organization of material or for
additional sources of good information for the construction of the pages or any of our
efforts, we welcome your feedback. You are free to contact either myself or Camille
Villanova from the Construction Directorate, is the contact person for the information,
the construction information that goes up.
Thank you. Do you have any questions?
MR. BURKHAMMER: Larry, would you bring back up your comments that you had made during
Berrien's presentation? I think Mary Ann was better suited to field them.
MR. EDGINTON: Yeah. I guess on the one hand, your presentation has been informative and
helpful, but my reaction to it is that in doing this, what OSHA is doing is going to what
I'll call the highest common denominator in terms of Internet access, Internet technology,
and that's fine for people who are safety and health professionals or have time to explore
these Web sites, but for many field-level people, this is not a very practical option for
So, a question I had raised earlier, for example, is I know from my own organization,
one of the things that was very beneficial until the last addition was the OSHA CD-ROM,
and with the most recent edition of the CD-ROM, which requires an Internet browser, you're
going in the wrong direction because that -- I think what you need to be thinking about is
what is the lowest common denominator in terms of technology that exists within the
audience that you're trying to capture, those people who are going to be using this, and I
can tell you that most job site trailers can't do this. Some can, most can't.
Most of my local unions -- I mean many of them are very sophisticated, but I have
others who tell me when I ask them about their electronic capabilities, they say, well,
the only thing I can think of that's truly electronic is my handheld calculator, and the
only other thing that might be remotely close is we still have some electric typewriters
and electric adding machines. I mean -- and I think that truly describes the universe
which currently exists within the construction industry, and I recognize that OSHA's
audience is much wider than the construction industry, but I hope that we're not losing
what has been a very valuable tool, and that's the OSHA CD-ROM, and I'd like to know, you
know, what's going on with that.
MS. GARRAHAN: Well, are you saying that your users were using the CD-ROM?
MR. EDGINTON: Oh, absolutely. Absolutely. And one and two, what really frustrated the
heck out of us in terms of my own shop is when we got the most recent edition, we --
remembering that -- and I didn't. I had to go back and look at the old edition and look at
the paper that comes with it, and it did give me a reminder that said the next one that's
coming out, you're going to need an Internet browser which I had forgotten all about. So,
I get this new one, and I can't get it to work, you know. I give it to one of the
technical guys in the office, and he says I'm not sure, but there's something going on
with the Internet access with this that's a problem for us.
So, then we get the real tech head in the office in, who explains -- our tester
explained to me quite candidly in terms that I don't understand the problem is the way
OSHA has set this system up is that the Internet browser that they want us to have is not
one which is compatible with the method of which we choose to use or to access the
Simply put, I -- if I can't figure that out in my office where we have just spent God
knows how many millions of dollars in a building renovation program, a part of which is
attempting to bring us into the state-of-the-art information age, I said what the heck is
going on here? And I don't think, by the way, it's our ineptitude. I -- I think I got the
right answer, is in fact it won't work with the Internet access that we're using or this
system that we have.
So, I'm saying, you know, what is the thinking that's going on in OSHA with respect to
all workplaces, but the construction industry and its workplaces in particular, because we
had a product that from my point of view was serving our needs very well, and I sure hope
that we're not going to lose it, and I would hope that perhaps we could go back to what
had been, you know, the previous version, if you will, and get rid of this -- this
requirement that in order to use the CD-ROM, you've got to have an Internet browser.
I mean it makes no good sense to me.
MS. GARRAHAN: We have an organization, and actually it's the -- a proposed organization
which is our information technology section, which would deal with an issue such as this.
From my experience, what had happened was it takes an awful lot of OSHA resources to
maintain our data and different databases and in different formats, and what the latest
CD-ROM did was it downloaded from our Internet and put the CD together that way versus
keeping the information separately, and certainly your issue is -- is important, and it
will be passed on to our IT group to see what can be done.
MR. MASTERSON: I am very comfortable using either the Internet or the CD-ROM. I had
mentioned this earlier. One of the problems that I've run into is that with the old
version, I was able to download it totally on to my laptop, and I didn't have to carry
extra -- extra -- extra equipment with me in order to access the data.
Now I do not have the ability to download the data. I have to carry the CD-ROM, my
CD-ROM drive, and everything else, and that has created a real inconvenience, and I'm sure
I'm not the only person that travels with a laptop and doesn't want to carry all the extra
One of the concerns for a lot of people was drive size. I don't know about most people,
but I'm probably running about eight gig now. So, I don't think drive size is the issue. I
think being able -- or at least having the ability to download it or the option to put it
on to your hard drive and not carry everything for a lot of people that are on the road
would be a very big advantage.
MR. BUCHET: From the Council's perspective, we have to contact between a 150 and 1,200
people that we consider our construction members, and in this discussion, we feel that if
you plan to use the Internet, a large part of the population simply hasn't gotten there
yet, and we never hear from them because the percent of the people who know how to use
computers is so low, we don't reach them.
In my experience, we're probably two-thirds or more without Internet addresses. My
guess is they may have a CD-ROM, and that's very useful, has been very useful, certainly
with all the iterations, was relatively simple to get in there and hunt and peck your way
around with, but now that the two have been married, not that that's a bad thing, it is
somewhat complicated, and if you haven't got the Internet access, you're dead.
So, I'd rather see a CD-ROM with the Internet access instead of Internet-driven maybe
you can use a CD-ROM..
MR. BURKHAMMER: Any other comments or questions?
MR. BURKHAMMER: Thank you, Mary Ann. We appreciate it.
In the back of the room is Jule Jones, who has been waiting and waiting and waiting. We
appreciate you waiting.
MS. JONES: Does that make me a lady in waiting?
MR. BURKHAMMER: Yeah. No, I'm not touching that one.
|Subpart M - Fall Protection Issues
MS. JONES: Good afternoon, Mr. Chairman.
MR. BURKHAMMER: Good afternoon.
MS. JONES: I do apologize for the confusion a few minutes ago, but I was trying to make
my boss look good with the deputy assistant secretary.
MR. BURKHAMMER: That's hard to do, but go ahead.
MS. JONES: My name is Jule Jones, and I work for the Office of Construction Standards
and Compliance Assistance. I've been asked to give to the committee a brief status report
on fall protection, and when I say brief, I do mean brief.
The agency hopes within the next few months to issue a notice of proposed rulemaking
for fall protection. This rule actually took effect in early 1995, and almost immediately
the general public started submitting comments and concerns on the fall protection rule.
Several of those concerns and questions were satisfied with the agency issuing letters
of interpretations. Unfortunately, there was some very difficult questions that cannot be
handled with a letter of interpretation. Those issues hopefully can be addressed
appropriately in this advanced notice.
Hopefully with this notice, we will be asking for input, some information collection,
if you would, from the general public and obviously from this committee, and with that
input, the agency should be able to make appropriate decisions and to change the standard
That document is currently in the Solicitor's Office being reviewed. It has
approximately 12 issues that we are reviewing, and like I said, in a couple of months, we
hope for that notice to be published and look forward to getting the comments from the
public and from this committee.
That's basically all that I had to update. If you have some questions?
MR. BURKHAMMER: Bob?
MR. MASTERSON: I really don't have any questions. I just want to let everybody know
that yesterday, as a group of the people from -- from the table here as well as some of
the stakeholders met briefly to start the dialogue of putting together some information
and some feedback to the committee.
MR. BURKHAMMER: Great. Any other comments?
MR. BURKHAMMER: Thank you, Jule.
MS. JONES: Thank you, sir.
MR. BURKHAMMER: We have one request for Public Comment. Rich Fell.
MR. FELL: Mr. Chairman, my name is Rich Fell. I'm the Safety Director for the Donohoe
Company here in Washington.
I'd be the first to volunteer for your new workgroup. That was the topic that I brought
to the attention of the committee at the last meeting in April, and I would -- I've heard
all day long that if you could refer to us, and I refer to us as part of you because I'm a
safety professional, I'm regulated by the agency. This organization that you sit on is one
that I have -- is one of the few voices that I have to bring to your attention my concerns
as a working safety professional.
If I can't get to you, then I have no voice whatsoever, and I need to be able to say
those things to you, and I, too, am a stakeholder, but when I go back and look at some of
the things that I look at from the last meeting that have not yet been accomplished that
were promised, it really bothers me, and I wonder how we can be stakeholders when in fact
these things are not there.
Mr. Jeffress last -- last month or last meeting talked about the need to recognize
excellence. I spoke about that last meeting as well in the Public Comment. What can we do
for the good actors, and I'm one of those. We have not done anything about that, at least
nothing is available in anything I've read here today to tell me that we're going to do
You're saying that there is a new -- a new safety excellence recognition workgroup, and
that brings me to another issue. The workgroups. Now there are a lot of us in the room
behind you, and, no, I'm not speaking for them, only for myself, that have volunteered to
serve with you on these workgroups, and yet again going to what's printed here, we're
talking about a workgroup meeting that will be open to the public but not announced by the
Federal Register. Apparently there have been several of these workgroups that have
occurred, and I would request that they move -- put a notice on the workgroup meeting that
-- that there is a workgroup meeting. Let us do one of two things, either say, gee, I
can't make that or my company won't send me, but in the same token, I at least know those
folks that I'm working with and that I can -- I can maybe send something to one of you,
either by regular mail or e-mail or whatever, but bring my concerns to you at that time,
if I can't make it, and that's a good way for us again to be stakeholders.
We can't be stakeholders if we're not involved, and we don't have the information.
That's really what I'm talking about here today.
Let me go further with that. That same question. I will reiterate looking at the whole
-- where I started last meeting, which was the issue of multi-employer worksites. This has
got to be resolved somehow, and to everyone's satisfaction.
I heard Mr. Cooper. He made some good points. I've seen the other side of that as well
as I represent a general contractor. Yeah. There's inequities there, but there's
inequities all the way down the line, and I -- I had to laugh at your comment, Bruce, as
everyone did with the change in the compliance officer.
I think there is need for more work on this. I would urge the committee to do that, and
I would specifically go back to where I pointed out, we have just lost a job. I'm
reiterating what I said in April. We have just lost a job because of the fact that one
serious violation has shown up in the last three years. That violation was not as a direct
result of our work. It was that of the subs, but the automatic granting of, you know, the
sins of the children upon the father has -- has eliminated us from a $150 million job.
That's not acceptable. We need -- and we're willing as an industry to come out and help
you, and again my point here is if we're going to be partners, stakeholders, we need to be
able to get in with you at all times.
A perfect example is, Mr. Chairman, you talked about SENRAC and this issue should go
quickly. Well, Subpart M is a perfect example. You just heard Ms. Jones talk about how the
-- that particular standard has generated a tremendous amount of problems probably because
we, the industry, haven't had quite as much input as we could have.
SENRAC, frankly, I -- I caught up with that very late, and I see things in there that
I'm not particularly pleased with, wouldn't mind commenting on, but again we need to be
able to bring to your attention as the group that represents us, and then have things come
back at us.
Finally, I would just point out that there was a -- also at the last meeting, Mr.
Nichols talked about the workgroups -- chart boards would be probably posted addressing
workgroup functions and so forth, and I don't know whether it's because he's not here or
whether that just slipped through the cracks.
I guess I'm saying to you when we -- when -- when decisions are made or promises are
made, could you please at the next meeting raise up the debate? Where are you with this?
What's happening? Why -- why -- is it not available? It may be simple. I don't know. We
can't afford this. That's fine. At least we've got an answer.
MR. BURKHAMMER: Thank you, Rich.
Any other public comments?
MR. BURKHAMMER: Okay.
MR. SWANSON: Just a couple of things.
MR. BURKHAMMER: Bruce, go ahead.
MR. SWANSON: Just a couple of -- of quick comments in response in case there's
widespread confusion out there or in case ACCSH would like to see things done differently.
One, on the -- on the excellence recognition project, we are -- we, OSHA, we're working
on that. We've been working on that for years. For years, many of us have been trying to
come up with a BPP program or the -- I'm going to shut off again. A BPP-type program for
the construction industry that does not take years to set up and therefore is -- is a more
suitable vehicle for excellence recognition for the construction industry, one that might
take simply months.
I think when the assistant secretary was here last time, he talked about a couple of
pilot sites that are going on in the Western United States. Those are
-- that's another type of program. It is not a BPP program. It is a take-off on that.
It is a streamlined BPP, but many people in this industry feel that one year on a job site
still doesn't quite meet the needs of this industry, and we continue to -- continue to
work on that. There is a workgroup set up for that.
And speaking of workgroups, the -- the vehicle that was explained for notice, and we
can try some other vehicle if you'd -- if you'd like, but the vehicle that was set up last
April was we asked folks in the audience, anyone in the world, that would like to be
advised of a workgroup meeting on a particular subject to either let one of the announced
chairpersons know, let the announced staff person know, or failing knowledge of -- of who
is sitting in any of those seats, just let -- give my office a call, and let my office
know that you wish to be on a list for a workgroup, and we will get you notice when it is
going to meet.
This time around, we have like 10 workgroups, and this time around, we only knew of two
workgroups that indicated that they intended to meet prior to -- prior to this meeting.
I think a third one met on -- on short notice, but I also believe we got to everyone
who had indicated a desire for that notice.
MR. FELL: Mr. Chairman, may I engage in a colloquy with --
MR. BURKHAMMER: No.
MR. FELL: No?
MR. BURKHAMMER: Public comment is not a public debate, and you -- you've been kind
enough to come up and address the committee, and Bruce has the -- would like to respond to
your comments. So, why don't you do that off line?
MR. FELL: I do have one other that I didn't mention, and that was the issue of the
minutes being put on the Web. That was promised and that has not been forthcoming. I have
heard an explanation on it, but I would urge the committee to also look at that and see
that it be done.
MR. BURKHAMMER: Thank you.
I think from the acting chairman's perspective, putting the meeting minutes on the Web
page before the committee approves those minutes at the next meeting is not professional,
and I think it violates the intent of the minutes. Putting them on the Web page after the
committee approves the minutes at the following meeting may not do anybody any good. So, I
-- that's my personal take on the thing. Thank you for sharing that.
Does the committee have anything else they'd like to bring up to -- for discussion
MR. BURKHAMMER: If not, we're adjourned till 9:00 tomorrow morning.
(Whereupon, the meeting was adjourned, to reconvene tomorrow morning, Thursday, July
23rd, 1998, at 9:00 a.m.)