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ADVISORY COMMITTEE
ON
CONSTRUCTION SAFETY AND HEALTH
(ACCSH)


OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
U.S. DEPARTMENT OF LABOR

Thursday, March 13, 1997

Department of Labor
Francis Perkins Building
200 Constitution Avenue, N.W.
Room S4215 A,B,C
Washington, D.C. 20210

The above-entitled proceedings commenced, pursuant to notice, at 9:00 a.m.

COMMITTEE MEMBERS PRESENT:

Knut Ringen, Employee Representative, (Chairman)
Stephen D. Cooper, Employee Representative
William C. Rhoten, Employee Representative
William J. Smith, Employee Representative
Lauren J. Sugaman, Employee Representative
Stewart Burkhammer, Employer Representative
Stephen Cloutier, Employer Representative
Bernice K. Jenkins, Employer Representative
Robert Masterson, Employer Representative
Owen Smith, Employer Representative
Harry Payne, State Representative
AnaMaria Osorio, Public Representative
Judy A. Paul, Public Representative
Diane D. Porter, Federal Representative
Bruce Swanson, Directorate of Construction
Theresa Berry, Committee Contact
Jule Jones, Committee Contact
Stephen Jones, Committee Contact

 

I N D E X
APPEARANCE
 
PAGE:
Knut Ringen  Welcome, Introductions  4
Bruce Swanson   Directorate of Construction Update 20
Roy Gurnham  Standards Update  38
Marthe Kent  Paperwork Reduction  46
Diane Porter  NIOSH Presentation 60
Lt. Kenneth Mead  NIOSH Presentation 60
Steve Cooper  Settlement Agreements  80
Bruce Swanson Agency  Response to Settlement Issues  85
Ray Donnelly Agency  Response to Settlement Issues  86
William Rhoten  Argon Gas  102
Stewart Burkhammer  Workgroup Report: Musculoskeletal Disorders 107
William Smith  Subpart N: Cranes  109
Lauren Sugaman  Workgroup Report: Women in Construction 133
Chuck Gordon  Butadiene  177
Dr. David Weill Boston University, Enforcement Data Study  185


P R O C E E D I N G S


(9:00 a.m.)

MR. RINGEN: Good start. Here we go. We have a presentation by Dr. David Weill at the end of today on enforcement data that I think everybody will find very interesting. And we have the workgroup report on Women in Construction which has been moved up to today from tomorrow in order to accommodate certain schedules.

Tomorrow morning Greg Watchman will be here to give us an update from OSHA. We will have a report on another study that has recently been completed on training certification that I think is important and we will have reports from the different workgroups that have been meeting in the last couple of days and also between the last meeting and this one.

I would like to start out this morning by asking everyone in the audience to identify themselves by name and affiliation, starting with you, Jim.

MR. LAPKIN: Jim Lapkin (Phonetic), OSHA.

MS. RISINOWKSI: Ellen Risinowski (Phonetic), OSHA.

MR. REEDY: Jerry Reedy (Phonetic), OSHA.

MR. CHANE: Pete Chane (Phonetic) -- Association.

DAVID: David --, NIOSH -- Research.

MS. SWEENEY: Marie Haring Sweeney (Phonetic), NIOSH

MS. PULASKI: Barbara Pulaski (Phonetic), OSHA.

MS. HOWARD: Jane Howard (Phonetic), Bechtel.

MR. BALSOM: Greg Balsom --

MR. BROMIGAN: Tom Bromigan (Phonetic), International Asphalt Paving Association.

MR. MARASKA: Charlie Maraska (Phonetic), Associated Drillers and Contractors.

MR. PEREDINE: Bruce Peredine (Phonetic), -- Utility Contractors Association.

MR. HOLSTEIN: Tony Holstein (Phonetic), Argonon (Phonetic) Insurance.

MR. MURRAY: J.P. Murray (Phonetic), Specialized Carriers and -- Association.

MS. POWER: Jontel Power (Phonetic), B&A (Phonetic).

MS. GROVE: Heather Grove (Phonetic), the Center to Protect Workers Rights.

MR. VANDENMEER: Steve Vandenmeer (Phonetic), --

MR. FLASH: Bruce Flash (Phonetic), Industrial Safety and Equipment Association.

UNIDENTIFIED SPEAKER: -- OSHA.

MS. GOLDENHAR: Linda Goldenhar, NIOSH.

MR. MOTT: Bill Mott (Phonetic), Huber Hutton Nickels (Phonetic) and --

MR. RINGEN: Okay. The -- we will have available time for, if there are any public comments, and we will take those right before lunch and also before we adjourn today. If you have any comments that you would like to make, please give them to us, or a written notice about what you would like to say, and we will make sure that we accommodate this within the schedule.

MR. BURKHAMMER: Knut?

MR. RINGEN: Yes?

MR. BURKHAMMER: If possible, can we have the -- squeeze the MSD Workgroup Report today instead of tomorrow?

MR. RINGEN: Yeah, I think we can work it out. I don't know exactly when yet, but I'm pretty sure that we'll be able to do it. Is that going to be a long presentation, you think?

MR. BURKHAMMER: Three-and-a-half minutes.

MR. RINGEN: Okay. No problem. Do you want to do it now?

MR. BURKHAMMER: No.

MR. RINGEN: We have three sets of minutes that we need to approve and I'd like to take them in chronological order. The first are the minutes from the Spokane meeting on August 27 and 28th. Because of a number of problems at OSHA with staff illness and so on, those were delayed, you will recall, and we didn't have them at the time of our last meeting. I don't know if you've all had a chance to review those minutes. They're pretty extensive.

(Pause for members to review Minutes.)

MR. WILLIAM SMITH: Mr. Chairman, I'd like to make a motion that we adopt the Minutes as presented. I think everybody else has had an opportunity to review them.

MR. RINGEN: Do you have any comments, questions?

(No response.)

MR. RINGEN: All in favor of adopting the Minutes of the August 27-28 meeting say "aye."

ALL MEMBERS PRESENT: Aye (by all).

MR. RINGEN: Anyone opposed?

(No response.)

MR. RINGEN: They're adopted. Thank you. The next set is the Minutes of the November 12 and 13 meeting of the Advisory Committee. Again, these have been sent out ahead of time. If you would like to take a minute to review them?

(Pause for members to review Minutes.)

UNIDENTIFIED SPEAKER: I move to adopt these Minutes.

MR. RINGEN: Okay.

UNIDENTIFIED SPEAKER: Second.

MR. RINGEN: I have a motion to adopt these Minutes from the November 12 and 13 meeting. Any discussion of that? Comments?

(No response.)

MR. RINGEN: All in favor?

ALL MEMBERS PRESENT: Aye (by all).

MR. RINGEN: Any opposed?

(No response.)

MR. RINGEN: Those Minutes are adopted. Finally, we have the Minutes of the December 18th conference call meeting that was held that concerned strictly this issue of the residential construction study.

(Pause.)

MR. RINGEN: Yes, Steve?

MR. COOPER: I move that we adopt the Minutes from December 18, 1996.

MR. BURKHAMMER: Second.

MR. RINGEN: Okay. We have a motion to adopt these Minutes. Any discussion? Any comments?

(No response.)

MR. RINGEN: All in favor?

ALL MEMBERS PRESENT: Aye (by all).

MR. RINGEN: Any opposed?

(No response.)

MR. RINGEN: Minutes are adopted. Minutes of the December 18 meeting are adopted as well. Thank you.

I would note that the Committee is now fully occupied -- I don't know if that's the right word -- but fully occupied except for one state representative. Mark Brown from Washington State is no longer at the, the state and is no longer on the Committee and we need a replacement for that position. And I think also, unless there is objection on the Committee, we urged OSHA to find an other state representative as well, because Mr. Payne has not yet participated in a meeting in the year that he has been appointed to the Committee. So, I don't --

UNIDENTIFIED SPEAKER: Mr. Chairman?

MR. RINGEN: Yeah?

UNIDENTIFIED SPEAKER: He just walked in.

MR. RINGEN: Oh, he just walked in? I apologize.

MR. SWANSON: So, are you withdrawing the suggestion that he be fired?

MR. RINGEN: Yeah.

(Laughter.)

MR. RINGEN: We're not going to fire him yet. We'll see how he acts.

(Pause.)

MR. RINGEN: I want to start out this morning by some things that I'd like to get back at again tomorrow before we get into the, the agenda itself.

When I became Chairman of the Committee, I had three major objectives that I wanted us to accomplish. One was to bring in more statistic, more of a factual basis, a scientific basis for considerations of construction safety and health.

Second was I wanted to broaden the focus of this Committee to include state plans, research issues, and so on, the whole -- the sort of whole community of construction occupational safety and health.

And the third was that I was hoping that we could operate well through consensus, and we have done that in all instances so far. We have not had a split vote. We have chosen not to take votes where there would appear to be split votes except to recommend to OSHA that there would not be complete agreement on these issues.

Lately this has become more difficult and we had the unfortunate incidence this week that one association, the Homebuilders, pulled out of one our activities because they didn't feel they would be getting heard adequately, and they did that in a letter to the Secretary. And maybe I would be less offended by that action if it hadn't focused more or less on my conduct personally, the letter, and I found that pretty offensive.

You've got to remember that this is a committee of volunteers. It's the committee that's supposed to represent all aspects of the industry as it was defined in legislation and it's a committee that's supposed to be advisory to OSHA. Our deliberations have absolutely no impact unless OSHA chooses to take the advice that we give. But more and more we find that our activities seem to be treated as rulemaking activity by some participants, which is far from the case, and that the tone of deliberation is becoming very strident and not very useful for a group that is supposed to come to agreement amongst us about what we think is best for the industry.

Now, to accomplish things within this kind of an operation, it often takes time, and we have been stretched on several occasions by unreasonable time limits that we worked very hard to keep up, for instance, on the Ploydem (Phonetic) Standard, where I think everybody did a very good job. We had a very difficult time with the Musculoskeletal Disorders activities last year, where I think a lot of the behavioral part of many groups was less than admirable. And I think we're having the same thing now again in this activity with residential construction, and I have a sense possibly at one of the workgroups at this meeting on Scaffolding, that some --

So, what I want to do is to emphasize that we are a voluntary Advisory Committee. We simply give advice, make recommendations. The workgroups that we set up are totally informal. They are private groups that represent absolutely nothing. They can't make a recommendation. They can't draw a conclusion. They cannot give advice to OSHA. Only this Advisory Committee can give advice to OSHA. Now, we have chosen to set up these working groups because we believe that there are more people in the industry that can participate effectively and give advice than those 15 of us who are members of this Committee, and we have chosen to use those working groups to try to get information from everyone and to try to work together as well as we possibly can. We've used those working groups as vehicles to expedite our activities because, clearly, if we are going to do all of this ourselves we are not going to be able to accomplish nearly as much as we can if we use the vehicle of having working groups pull together the information for us and make suggestions about how we may proceed.

But I'm concerned that if these working groups keep developing in terms of tone, in terms of actions -- I mean, this thing with the Homebuilders I haven't experienced since the sandbox days. If this kind of thing continues where people say: oh, my issue isn't being represented, therefore I'm walking out of it, that just doesn't help anybody. It's not very good. We have to reach a consensus among people if we are going to be effective as a body. If we're not going to be effective as a body, we can't reach consensus amongst ourselves, then the Advisory Committee is not very useful to OSHA.

So, I would like some guidance, if possible, tomorrow when we have Committee business, if any of you can think about how we might operate more effectively, how we might be able to achieve more in the way of consensus and how we might have more collegiality within the Committee than we seem to be having and that I think is deteriorating.

Having said that, if anybody wants to comment on this at this point in time, you certainly can, or we can leave it until tomorrow. Bruce?

MR. SWANSON: Let me, if I may, comment. I am somewhat surprised by your remarks this morning, Knut. OSHA feels quite strongly about the necessity of using ACCSH and the recent emphasis that we've put on working groups under the auspices of ACCSH. When Joe Dear came in four years ago on our standard-setting process, he was very much enamored of the concept of Negreg (Phonetic) -- and you know that we use Negreg for SENRAC and Subpart R, which some of you participated in. And, you know, that also had a certain amount of dissension and creation of noise. One of the advantages of having stakeholders participate directly in standard-setting is to, is to bleed off some of that hostility that people coming from different elements of the construction community seem to naturally have.

To use Negreg, however, is a very time-consuming process, as Steve and some of the others well recognize. Subpart R is not on the books as of yet, although we are making progress. We have certain FACA restrictions that make it very time-consuming for us to go out and name ad hoc committee groups and -- the Federal Advisory Committee Act restrictions. So, a vehicle that should benefit everybody is to (a) use ACCSH as a body, and then expand so that we can bring in others who have a vested interest in the subject matter and through a subgroup, although this body is not big enough to have them all, we can bring in 20, 30 other opinions and get it at a table.

There's a certain amount of natural contention, like there was with Subpart R, but I certainly would like to see ACCSH be able to continue in this route, continue to use the subgroups. It is an extremely useful vehicle for us and there are problems with personalities and people sometimes get rather strong in their statement of their views and apparently, on occasion, are even willing to pick up their ball and go home. But let's -- I hope we don't, we don't kill the vehicle here.

MR. RINGEN: I certainly share that sentiment, but I think that we -- if we are going to be successful, or more successful than we are at the present time, then we have to come up with a somewhat different way of operating.

Any comments?

MS. OSORIA: I just have a question. In the past, for those people who have been on this Committee much longer than I have, have their been other methods of getting input from outside groups aside from a workgroup format? I just want to know --

MR. OWEN SMITH: The institutional historian may speak.

MR. CLOUTIER: Well, in the past there has been, typically an Employer Rep, a Labor Rep, and a Third-Party Rep on the workgroup, and then the workgroup has met one or two times and it's been determined to bring in some outside experts. It seems like for the last couple of years we have had a workgroup of 20 people or 15 people. Maybe the workgroup has gotten too large to accomplish what needs to take place. In the past we kept them down to probably a half-dozen, and at times maybe eight or ten when we brought in outside experts. But now it seems like every time there's a workgroup, every association wants to be on it, everybody wants to be represented, and the tail is wagging the dog. And I think, Mr. Chairman, we need to get back to having strong workgroup chairpersons. Not that we don't have now, but somebody's got to control it and call the shots and then see who's around the table. And if we identified most of the talent and the resources that need to be on the workgroup and generate a decent product that can come back to ACCSH, and then ACCSH can either accept the workgroup product and tear it up, or go a third one. It just seems like these committees of 20 turn into 25, turn into 30 people, and we don't get anything done.

MR. BURKHAMMER: Knut?

MR. RINGEN: Yes?

MR. BURKHAMMER: Speaking as Chairman of the Musculoskeletal Disorders Workgroup, which had a pretty rough go, and having been accused of being a dictatorial chairman -- which I am, but that's okay -- I think there comes a time -- and in Judy's Safety Management session Monday we kind of saw a little bit of it -- if you don't steer the right course, you get always going left or right or up or down and you very easily can get sidetracked from what your goal is. And these workgroups have a goal. I mean, they have a scope and they have something that they're supposed to accomplish, and they're giving a time-frame to accomplish it. And there's nothing wrong with the mechanism as it is. And I also don't think there's anything wrong with the participation. I mean, you want lots of groups to come and participate and you want to hear people's views. Even if you don't agree with them, you still want to hear their views. But there comes time in the process that the chairman has to stand up and be counted and say: okay, this is what I hear and this is what we're going to do -- and if we've got a negative report and we've got a different report than what the consensus is, you attach the different report so everybody sees that there was a difference of opinion.

So, I don't, I don't think the workgroup process is flawed. I agree with Steve. I think the workgroups have gotten to the point where they're way, way too large and you've got everybody wanting to participate and have a say. But, again, that's what they're for, and if you don't let them do that and if you don't listen to the different views, then you really get to be a dictatorial chairman and you get accused of not following the process.

I think we do it right. I just think the chairman has to -- the chairpeople have to assume a little more control and guide the meeting down the paths so we complete our tasks on time.

MR. RINGEN: AnaMaria.

MS. OSORIA: Not to beat this into the ground, but I do just want to emphasize one thing that Knut said, because at one of -- I've been to four meetings in the last -- four workgroup meetings in the last two days, so I've got a flavor of the good, bad, and not so good. And there was one point where one person at one of these committee meetings just said: well, you know, if you don't do such-and-such, I'm taking off and I'm not going to attend anymore. It doesn't matter what the action was, but I do think that that person, even though I tried to explain to him, it isn't like we're setting rules, we're making standards, or anything else. I mean, all this has to be filtered through this Advisory Committee and goes to OSHA and this person's interpretation that whatever we said and -- that came out of this group is going to go straight to, you know, the Secretary of Labor or something.

And so, you know, I do think defining very clearly what the roles of the workgroup, what they can and can't do, and not attributing more than is warranted, I think is an important aspect. I don't think everybody at some of these workgroups are fully comprehending.

MR. RINGEN: Any other?

MR. OWEN SMITH: Maybe just one comment. I wish we have these workgroups that everybody would stay in the room, but I fully realize they've got the right to walk out of any meeting they want to, and I don't think we should make too much of it. They're going to in fact have their input in the same -- whatever the workgroup brings back to the full Committee. I'm sure they'll be in the room then. If there's any standards proposed, I'm sure they'll be there to object to them then. So, I think it's all right if somebody decides to leave the room if they want to. I would rather they stayed, but I don't think we should make too much of it. And I think the workgroups, the chairmans in the ones I've been involved in, have been very, very fair, very democratic, and encouraged everybody to have their say. And I think it's -- I don't think we should make too much of this issue.

MR. RINGEN: Yes?

MR. JONES: Just a point that I think that all of us need to keep in mind, the workgroups -- the opportunity to make statements is all well and good, but for the Agency to have material that it can use to proceed with its actions, for the Committee to have material that it can use to proceed -- written, video, other concrete information -- is probably the most interesting and most important to OSHA. And while the chairmen I know do their best, it's very difficult for the discussions of the workgroups to be fully, you know, reduced to minutes or other written form. So what people bring to the workgroups, in print or in video or other data, is probably the most useful contribution that they can make.

MR. RHOTEN: Well, I chaired a workgroup and it was quite lively. But, you know, it's just like negotiations; it was fine.

(Laughter.)

MR. OWEN SMITH: They walk out sometimes.

MR. RHOTEN: That's okay. But if you walk out, you lose.

MR. RINGEN: We'll get back to this tomorrow and see -- give some more thought to it. I don't disagree with the view that you present, but certainly in the one instance that we have before us, now it's brought out proceedings, to place a temporary halt and we'll talk about that tomorrow.

The first item -- are there any changes to the Agenda, by the way, that anybody wishes to make?

(No response.)

MR. RINGEN: The first item on the Agenda this morning is Bruce to give us an update on the Construction Directorate.

MR. SWANSON: Thank you, Mr. Chairman. I'd like to take the opportunity to, I hope, quickly go through some of what the Directorate has been involved in since last November and give you a feel for what your Directorate is accomplishing -- or at least working on, if that's a different issue.

First in your packet, those of you on the Committee all have a copy of the NAHB booklet which was, which was finally distributed late last year. We are presently going to print with a Spanish version of the same booklet. Like everything we do, there is some controversy surrounding the booklet and many people would like to have seen the booklet read differently or a different picture used to illustrate something.

But for an industry that perhaps is -- has a rather in-depth -- pardon me, Bob -- in-depth ignorance at the worker level of OSHA standards and safety practices. If you, if you view this as a primer, it is a step in the right direction for safety and health on a worksite.

We are working with the National Commission for the Certification of Crane Operators. Bill Smith of this Committee is involved in that Crane Operator Certification project that we would like to see brought to fruition here in the next few months.

We are working with our sister agency, NIOSH, on highway and street construction, a safety research project. We -- Joe Dear's last week in the office he signed an agreement on asphalt paving and the protection of employees from fumes on paving equipment. Joe's comments upon leaving were: four years ago when -- three-and-a-half years ago when I came in here, this is the type of thing that I hoped to be able to do wholesale, and I find myself, 72 hours before leaving town, signing my first one. I hope we see more of that in the future.

I'd like to bring to your attention something yet to happen, and that's the National Conference to Eliminate Acilicosis. Doc is working to coordinate that construction workshop as -- in that, in that conference.

Training efforts that we've been engaged in: we have teleconference capability here, so we don't have to fly Directorate people out to, out to Chicago. Whenever an opportunity to speak to a construction class comes up, we're able to use TV capabilities from here and give them a guest speaker. We have worked with OTI, the OSHA Training Institute, on ten different occasions since November to give a portion of construction training to various classes. They might be OSHA Compliance personnel. They might be union folks or they might be private industry. All have been represented in some numbers at these classes.

We are working jointly -- another area that we'd like to expand upon in the years ahead -- we're working with the United Brotherhood of Carpenters and the OSHA Training Institute to present Train the Trainer courses to union members across the country and, in essence, start the ripple effect going on those Train the Trainer courses.

We are engaged in that Scaffold Training. We -- it's not a certification card, but it's a card of evidence of completion of that Scaffold Training course that the, that the carpenters are giving to their members upon completion of the course and citing us and OTI on that.

We have -- there's a dozen other areas where we have sent speakers or trainers around the country to organizations and associations, some in conjunction with Committee members here where we worked with or spoke to your constituency to put out the word on OSHA or safety and health on construction sites.

We are continuing to review significant cases. Any case over a proposed $100,000 penalty that is in the construction area now comes through the Office of the Directorate of Construction for review. All the egregious cases come through our office for review as well as the Solicitor's Office to make sure that the case when it hits the courts, which egregious cases often do, will stand the test of time.

Let me give you a little more detail. I think that I'm in some danger here of being criticized for this, but nonetheless I think when someone gets an egregious citation from OSHA they deserve to get some notoriety for same. Lamaster (Phonetic) Steel Erectors out of, out of Indiana was cited $140,000 -- a proposed penalty of $140,000 for a fatal fall of 28 feet, two egregious violations of the Fall Protection Standard. Seattle Painting Company of -- in West Virginia was cited $178,000 for willful Fall Protection violations. MPG Painting Company of Ohio, a Lead in Construction case that resulted in a proposed $332,000 proposed penalty against them. All of which were reviewed and participated in by your Directorate.

We have a task force which we are chairing. It is staffed largely by field personnel. We are reviewing the Tunneling standards that OSHA has been working with for a number of years. There is -- everyone has a sense -- many people have a sense that there is a need to make some improvements. If not in the standard itself, although many suspect that the standard will have to be altered, we're reviewing court decisions that have in the past hindered our ability to enforce. Maybe we can correct this with field directives or letters to field personnel. The mission of the task force is to, is to study and advise.

We have worked with a group out in the valley of the sun in Phoenix, Arizona, where some very progressive-thinking owners from the microchip industry said: we are going to be doing an expansion here in the valley, we're going to be doing extensive building, we want to deal with a trained professional workforce. In the past, that always creates problems as to who pays for the training and who steals employees from whom, and let's work together with organized labor and the contractors in the valley and let's train everybody, let's train the universe of labor pool out here. So, they have put together a ten-hour course. We're not training, they are training, but we have worked together with them on establishing a matrix.

The Directorate also, as you well know, has a, has a small engineering group within it. The mission of the engineering group is to support field activities where design or structural engineering know-how is useful. Just to take off a couple that we've been in for the last four months:

The Northline Mall in Houston, Texas, the collapse where we had three civilian fatalities, but you also had extensive worker exposures. It was a demolition job where a department store was being knocked down and more than was intended came down.

Cedar Hill, Texas, tower collapsed, three employees killed; an issue of the methodology being used to raise a gin (Phonetic) pole to the 1,500-foot level on an antenna tower, and three employees got a 1,500-foot ride. We are working with the local office in a collapse at the Naval Research Laboratory.

We're up in Allentown on a fatal collapse of a masonry wall during demolition.

The Harrisburg area office has a fatality where we were demolishing a steel chimney with a steel liner and we had a crane boom collapse, taking an employee to his death.

We're working with Region Two. We have a million, we have a million-gallon concrete tank reservoir where workers were on the roof and a unplanned collapse of the entire concrete roof of the tank with the employees on-board.

Those are a couple of the news items of the last four or five months.

You also have in the past asked for staffing reports on the Directorate. You can, you can thank Mr. Watchman on my behalf, if you'd like, tomorrow for four FTE that within the past few months he has assigned to the Directorate of Construction, and we are busy making efforts to hire and fill those four positions within the Directorate.

We presently have, because of a transfer, we presently have five vacancies, 27 people on-board. A full complement when we get there will be, will be 32. OSHA itself you have in the past asked about staffing. Safety COSHOS: a year ago we had 480 on-board in January. This January we had 487. Industrial hygienists have gone from 348 to 352, essentially the same numbers in the field.

But in spite of those similarities of numbers, I have a very brief -- we have three slides. If we can let you know what OSHA field offices, not the Directorate of Construction, but OSHA field personnel have been doing vis-a-vis the construction industry and the numbers.

(Pause.)

MR. SWANSON: These are the latest figures -- meaning that 15 minutes ago I saw this chart. Which is the first one up there, John? You want me to move?

(Pause.)

MR. SWANSON: This is OSHA Federal Offices only. It is -- it's all industries, but obviously the area that we're interested in is simply that first column and -- although you're free to take notes on the rest of the columns, if you'd like.

Construction. You can see 34-and-change up to, up to 5,000-plus. This is year-to-date, Federal fiscal year-to-date. That means October 1st to the present. And we have an increase in Federal construction inspections between '96 and '97 year-to-date in our industry of 46 percent.

And I hope that's good news to everyone in the room. It's good news, it's good news to me. We will continue to work on where we target those 5,000 inspections, and that's an issue that we can discuss. The numbers are increasing. For those that have seen OSHA inspection numbers plummet in the last couple years, at least in one industry we have a significant turn-around year-to-date for '97.

And it's been asked in the past whether or not the figures that I'm putting on the board are for all of OSHA, or are they only Federal OSHA? These figures, Steve, are Federal OSHA only.

But we'll give you the universe -- now let's do the universe. Let's do them both together.

MR. RINGEN: When you compare these two things, the '95 figures are for that period when you have the continuous list of all those problems?

MR. SWANSON: Yeah, this does, this does include the shutdown of last year, so --

MR. RINGEN: That was the first two or three months?

MR. SWANSON: We had problems in December and January last year. Now, October and November figures weren't so bad. December figures started to go bad, carried over into January. These figures have February in them as well. Yeah. John cut it off at the end of February. Yes?

MR. BURKHAMMER: Bruce, is there a knowledge of how many of those were focused?

MR. SWANSON: There is a, there is a knowledge of that, but I don't have that slide here to show you this morning, Stew.

MR. BURKHAMMER: Do you give me what the last percentage figure was for focused?

MR. SWANSON: No.

MR. BURKHAMMER: I think I do, but I don't want to say.

MR. SWANSON: Okay. If you'll allow, I'll get back to you with that this afternoon or tomorrow.

MR. BURKHAMMER: Basically, it's I think focused is increasing.

MR. SWANSON: It is slowly increasing. And Greg will -- Greg Watchman will mention tomorrow that in keeping with the GPRA needs OSHA is putting together strategic plans. We in Construction are working on a strategic plan. It has not been, it has not been finalized.

But one of the areas that we would like to see enhanced is the whole concept of using focused inspection as a tool. It is, it is a very user-friendly tool for compliance officers once they get used to it, once they fall in love with it. Many of them haven't yet. Many of them would still rather do wall-to-walls. And we can just use our resources so much better, as many of you know, if we increase the focused inspection percentage. Everything can go up if it's, if it's used right. The significant cases, the enforcement efforts, the number of penetrations of workplaces. It's just, it's just the tool that has to be used more.

UNIDENTIFIED SPEAKER: It's somewhere in the ballpark of 43 percent, somewhere around in there, focused.

MR. SWANSON: And if you, and if you look back over the last five quarters, there has been a general upward trend to it, yes. Okay.

Now, part -- as you have pointed out, Knut, part of the, part of the reason for why Federal figures -- the increase in Federal figures looks so much better than this overall is that we were shut down part of last year, so last year was so bad that we had no place to go but up. This, however, is -- it combines construction figures, Federal and state, and you can see that the increase of 46 percent, once we homogenize it, we decrease by 3 percent. And, of course, a portrayal of the cause of that is to look at the state figures alone, if you'd like, John.

MR. RINGEN: Do these include California?

MR. SWANSON: Yes.

MR. RINGEN: I see in some of your citation databases there are no data for California.

MR. SWANSON: And there's, and there's state only year-to-date and I am sure there are as many regions --

MR. RINGEN: It's kind of unfair to portray this this way, Harry, because I have -- this says nothing about North Carolina, which might in fact be counter-trend. I have no idea.

MR. SWANSON: This is only an aggregate figure for all the states taken together. The construction inspections year-to-date have dropped 30 percent and there are probably as many different stories as there are state plans out there as to, as to what has happened.

But that's a view of what's happening in the construction industry on inspection numbers. Thank you, John.

Any questions on any of these figures? Do you want to see any of those charts again?

(No response.)

(Pause.)

MR. RINGEN: So, what's GPRA?

MR. SWANSON: GPRA is the legislation passed a year ago where Congress insists that the Executive Branch of Government have a results measurement strategic program in place: what are you doing? how is it measured? and are we the representatives of the American taxpayer? are we getting our dollar's worth? So, we don't want to know about activity; we want to know what you're measuring and how it changes and what are the results. And I believe that Greg will touch upon GPRA tomorrow and --

So, those are my prepared remarks as to what we've been, what we've been doing in the last several months since we last met and I'd be happy to answer any questions.

MR. COOPER: First of all, I want you to know that you set a record since OSHA has opened its doors. I have requested some information over here from your Directorate and within eight minutes I had it back on my fax. Now, I want to tell you I thought I'd called the wrong group.

(Laughter.)

MR. COOPER: But I think it's important to respond to you on transcript that that surprised me very much. And I went through Jim Lapkin to get this information. It was about migrant workers, which is outside of your department, and washing facilities for migrant workers, which we do not have for construction workers, but maybe if we put strawberries on the site we'll get them. But thank you very much.

Your comments on collapse, and if you'd look over your minutes there it was collapse, collapse, collapse, collapse, and more collapse. And that is one issue that we brought up in the steel erection SENRAC proposals that we felt have been overlooked by our industry and the Agency. And those new steel erection proposals deal a lot with collapse and hadn't before. I'm happy that you are able to increase your staff at the Directorate. I hope it continues. And I think everything is going well over the last few years since the Directorate has been opened up for business.

And at a point made earlier by the chairman on concerns of particular segments of our industry and this, and this Board, it is what it is. If they don't want to cooperate with the Board, that's fine. We'll still keep on trucking.

So that concludes my remarks, Mr. Chairman.

MR. BURKHAMMER: Steve was so kind and polite in his remarks. I'm not going to be, but I guess you expect that sometimes from me.

Several years ago -- time flies when you're having fun, so I guess it was four or five -- back to when the building trades and OSHA developed a subset of the VPP process called Construction Safety Excellence, and after a two-and-a-half year getting our act together, OSHA finally approved CSE. Bechtel was the first contractor awarded the CSE distinction, and we policed three projects in the process. All three were in Florida. And we invited Joe Dear down to visit one of those jobs -- or all three of them. He only had time to look at one of them, and that was Indiantown, and we took a tour at the site. And he in several speeches and articles after that called it "unique" and commented that if other contractors in the industry did something similar to this or participated in this that it would be a lot safer industry.

So, my question is twofold, Bruce. One, why has OSHA killed CSE? Because it's not in use anymore. And, second, why we can't we restart it under the Construction Directorate under your supervision and move it into that house?

And I think if a lot of people have seen the recent "Inside OSHA" article from the Safety Director in the midwest criticizing the OSHA VPP process and in essence kind of saying the same thing of: why don't we give it to Bruce, because it will be ran a lot better in his shop than is currently being ran in whatever shop it's in.

MR. SWANSON: I -- the answer to your two question is, one, I don't know why it was killed, if it indeed has been killed, or just hasn't been, hasn't been fed so it looks like it's dead.

The second, the second issue as far as moving something into my shop, contrary to what my peer group thinks, I don't do that. I mean, it can be moved into my shop, but the -- those comments have to go to Greg Watchman, not to me. If we had it and we had the resources to run it, we would, we would try and run it.

MR. BURKHAMMER: I'll bring that up to Greg.

MR. RINGEN: I think it's a good point, and the point that many of us have made before, and that is that the Construction office should be responsible for the Construction programs. And I think all of us have that objective and we believe that if that's -- if you follow through strongly on that and give you the support that you need to accomplish that, both the Directorate will be better off, but certainly industry will be better off. The -- and that relates to the whole issue of how the Directorate now is also -- how it functions in relationship to the field offices. Do you want to comment?

MR. SWANSON: We, some time ago, and you've heard this from us before, because it's almost a -- probably a year old now. The concept of the Construction Coordinator. Each region will have a Construction Coordinator, and we work through that coordinator so we don't use the Regional Administrator directly. That has, that has worked fairly well. It works in some regions better than others. We will continue to, we will continue to improve in that area. The Field Deputy, which at the moment is Frank Strasheim, who has, who has replaced Mike Connors, as the Regional Administrators who were brought in to fill that Field Enforcement Deputy position on temporary bases. Both of the last two Field Deputies have done an extraordinary job of making sure that the Directorate of Construction is involved in all regional administrative policy meetings. The weekly telephone call that that Deputy has with his field staff, we are party to that, and a number of -- on a number of levels people are working with us to get us interwoven with field activities. Although, as everyone understands, we have no Field Enforcement staff. We're a, we're a policy office and a planning office and a whatever else, but we don't do the direct Enforcement activities. But we are working closely with the field, and much more so now than a year ago, and it's just continuing to improve.

MR. RINGEN: And how about with the state plans?

MR. SWANSON: An area that has to be improved. We have, we have almost no direct contact from the Directorate of Construction with the, with the state offices other than the, than the periodic OSHPA meetings, and the last OSHPA meeting was the first one that the Directorate was represented at down in Albuquerque two months ago, something like that, is the first one in a couple of years that we have, that we have been involved in. I plan to continue to be involved in those, in those OSHPA meetings.

But on a -- on an otherwise national level, we work through the office of Federal States Operations, FSO. And what we do for the construction -- with the construction industry in Federal States gets filtered through FSO and that gets, that gets shared with the states that way.

MR. RINGEN: We all welcome very much the establishment of the Regional Construction Coordinators. That is certainly a recommendation that's come out of this Committee before. Is there any experience with them from anybody here? Are you familiar with how that is functioning, the Regional Construction Coordinators? Every Regional Office has a Construction Coordinator.

MS. SUGAMAN: Can we get a list of them?

MR. RINGEN: You were given -- you were provided them at the last meeting. We can certainly get it to you again.

MR. WILLIAM SMITH: Bruce, you mentioned one of the issues that we worked on, and that's the asphalt fume issue. And now that we're looking at cranes as an issue with the voluntary programs outside of the industry. That asphalt fume issue was a conglomerate of groups. I mean, it was a major, major initiative and it worked well for Joe and the Agency. Since NIOSH has published and there are engineering controls and guidelines now that are basically a voluntary initiative, but OSHA has brought into a memorandum to some extent by saying that they by reference approve the process and the system and what it's going to do for workers, is this a program and a method where this information will be funneled back down through the Regional Coordinator to the state plans and the Federal plans the same way? I mean, NIOSH has published it, it's out on the -- it's in booklet form, and it's everywhere right now. I'm just wondering if through your office, because it is like a one-stop shop that we wanted, but through your office is it then going to be coordinated down internally through OSHA?

MR. SWANSON: If that's not already out there in the, in the Regional Offices, it -- I mean, we can correct that --

MR. WILLIAM SMITH: Okay.

MR. SWANSON: -- quickly. And, yes, my -- the Directorate of Construction would be the, would be the vehicle for that, and that can be done. That would -- yeah.

MR. WILLIAM SMITH: Okay. Great.

MR. RINGEN: Any other questions or comments? We're going to take public comments right before the break -- you know, before the lunch or at the end of the day. And we announced this at the beginning of the -- and please give us, those who want to make comments, give us a note.

Okay. Thank you, Bruce.

Next on the Agenda is Roy Gurnham on Standards Update.

(Pause.)

MR. GURNHAM: All right. Good morning. My name is Roy Gurnham. I am the Manager of the Office of Construction Standards and Compliance Assistance. That's one of the three groups that are in the Directorate of Construction.

What I'll do this morning is give you a brief update on the progress that's been made on the four major projects that we are involved with since our last meeting with you. And I'll do each one, and then if you have any questions we'll handle them at that time before I move on to the next one.

The first one is the Safety and Health Program Standard for Construction. And as you know, back in August this Committee made recommendations to a work -- myself or our office to take comments and incorporate them into Subpart C as to what the Safety and Health Program should look like for Construction. That effort has been completed and sent back to the workgroup for their further review. The workgroup has met this week and they will be having a report tomorrow, so I don't want to steal any of their thunder and get into the specifics. In addition to that, the Acting Assistant Secretary will be talking on it tomorrow and I don't want to take any thunder from him either. But we have incorporated it and we do have a work product here for people to look at and see what form and shape that it has. Do you have any questions on that particular item?

(No response.)

MR. GURNHAM: Okay. The second item on the list there is t he Confined Space entry in construction. This project, although it has a 1998 due date for a Notice of Proposed Rulemaking, it was selected by OSHA to be a part of a pilot program wherein we are looking at a way to streamline the standards-setting process. There is an outside consultant who has been retained to help OSHA in this effort who is bringing his knowledge of similar activities at other agencies and we've been working very closely with him. There has been progress as a result, which we are pleased to see. And some -- a little -- a few missteps, but under his leadership we feel that we can get this thing rolling. It's our, it's our sincere hope that the process does work out and has benefit to us in getting this thing published earlier than the otherwise expected date, but time will tell on that one.

The specifics that we are working on with regard to the project is we are looking very closely at the existing 1910 Confined Space standard, which is, as you know, already out on the books. And as well we're -- or we're comparing that with the recommendations made by the Advisory Committee here for the one that should be put in place for construction. The key is to make sure we have a complete understanding for the changes that have been recommended to us to be put into the program so that we can make sure that our outreach efforts, follow-up efforts to the Compliance officers as well as the public at large will give them a full understanding of why the construction standard may look differently to them or in fact be different. We're concerned, of course. A lot of contractors get into both maintenance work as well as construction work and they're already going to be familiar with the 1910 standard, so when we come up with one that's different we want to be able to explain to them very fully why it's different so that they're able to incorporate that into their work practices. Any questions on that project?

MS. JENKINS: Would the Committee have an opportunity to review the draft on that?

MR. GURNHAM: Oh, yes. Certainly. Certainly. Fall -- excuse me.

Fall Protection. This project has been advanced in its status to be on the Agency's priority list now. We have a rather ambitious schedule that will be a serious challenge to meet, and that is to have a Notice of Proposed Rulemaking in the Federal Register by the end of this year. I think there's going to be a problem with that because we definitely want to produce a draft and get that into the Advisory Committee for your comments and review, and I would expect that might be what, in the, perhaps, June time-frame. So, it would be very -- a new occurrence for OSHA if we are able to move from June to the Federal Register by September, but nevertheless we're going to give it a shot.

The standard at this point will focus on several items that have come up in the last, what, two years, I guess, since the standard was promulgated, and we will be looking at the following items, and I won't go into detail unless you ask for it, but we will be looking at expanding the scope of Subpart M so that it addresses tanks and towers. That's an item that's kind of fallen in between Subpart R, Steel Erection, and Subpart M, Fall Protection. We're going to be looking to revise some of the paperwork requirements in the standard. We are going to be looking at to -- into the residential construction aspects of the standard: roofing; climbing and working on rebar assemblies; the issue of vendors, what is appropriate fall protection for vendors who are delivering materials at the worksite, rescue. We have in the criteria for the body harness section personal fall systems. We have some criteria in there for rescue, that some questions have come up as to feasibility of that particular standard. Fall Protection for communication towers as they are being erected. We expect a great number of towers to be built in the next one or two years and, and we have to be ready to address that. And postframe construction is another item that has come to our attention. So, are there any questions on what we're, what we're doing in that respect? Stew?

MR. BURKHAMMER: Rebar assemblies?

MR. GURNHAM: Rebar assembly? There is a provision currently in Subpart M that requires fall protection while employees are working on the face of rebar assemblies. Rebar assemblies would be those built-in-place rebar assemblies used for concrete work or they could also be rebars that are preassembled at some other location or perhaps another spot on the construction site and then hoisted into place. So, it's the rebars used for the subsequent concrete pour.

MR. BURKHAMMER: Do you have on wall curtains and these kind of things?

MR. GURNHAM: Yes. Any other questions? Okay. Steel Erection. Steel Erection is moving along. It's got a few issues that remain to be resolved. Fortunately, the nature of those issues does allow us to continue work on the bulk of the project. So that although they still need to have some critical answers, the work is able to progress on the rest of the standard. The -- at this point the standard -- the draft standard and the proposal are being reviewed by the Solicitor's Office, so we're expecting comments shortly.

The team has prepared a package for the Small Business -- is it Administration or is it --

MS. KENT: Administration.

MR. GURNHAM: -- Administration with regard to the SBRFA requirements, and we are hoping to show that -- those concerns, that in fact during the SENRAC meetings there was a lot of opportunity to work with the small business concerns and we hope that they will recognize the efforts of those already made in that regard so that we can expedite the publication of the Notice of Proposed Rulemaking.

MS. KENT: We're hoping, actually, that SBA will waive the requirement for us to have a panel under SBRFA because we've already done such a good job of involving the small business community. So, we've given them the phone numbers of the people that have been involved so they can call and reassure themselves. And if we can avoid a panel, we can probably save three months in rulemaking. Otherwise, it's quite an intensive process we would have to go through.

Oh, also raises some interesting questions. Because if the SBRFA panel recommended changes to the regulatory text, which has been developed by a negotiated rulemaking committee, that would be a very interesting development. We'd have to go back to the committee and have an argument under two acts what's, you know, what's going on here. So, we're hoping they'll waive, because I don't think they want to create that sort of a mess either.

MR. GURNHAM: Any other questions?

(No response.)

MR. GURNHAM: I wanted to add one item. It's not on your list, but I'd like you to know that we are working on a Federal Register notice for some concerns that have been raised with regard to the recent Subpart L Scaffold Standard that was promulgated. We were -- or we need to look into and gather additional information on two specific types of scaffolds. Because of the way our rules are written, they would not be usable at this point. One is roof brackets scaffolds. The other is a trestle ladder scaffold.

We are also going to be looking into concerns about the performance language of the standard which allows the use of inferior planking on the scaffold itself. Of course, the standard is not meant to do that. But taking the words literally, you can end up with some inferior scaffold planks being used, and of course we don't, we don't want to have that as a result.

And the last topic that is generating a lot of concern is the welding provisions in the standard. Apparently it has some technical glitches in what they require and could in fact produce a hazardous situation for employees, and of course we certainly want to get that addressed as soon as possible. So, at this point we're putting together in the Federal Register that would reflect those -- used so that we can not handle the corrections by Letters of Interpretations or Directives but get right into the standard itself and make the appropriate amendments.

MR. RINGEN: Any other questions for Roy?

(No response.)

MR. RINGEN: Thank you very much. Marthe.

MS. KENT: Okay.

MR. RINGEN: You're here about the Paperwork Reduction --

MS. KENT: Yes.

MR. RINGEN: -- issues, which we are real fond of.

MS. KENT: Yes, I know. I'm Marthe Kent. I'm Acting Deputy Director of Policy for OSHA and I'm also, unfortunately, the Paperwork queen for the Agency, and that just happened a couple of weeks ago and --

MR. RINGEN: Congratulations.

MS. KENT: -- I hate -- yes. So, you guys hate Paperwork, and believe me, so do I.

But I'm here to tell -- to talk to you -- I've been enjoying, actually, reading the transcript from the meetings at which you discussed Paperwork. Unfortunately, the Congress loves the Paperwork Reduction Act. They love it a lot. If anything, they'd like to strengthen it a little bit.

Something that those of us who have worked with the Paperwork Reduction Act for years have feared has come to pass and it needs to -- you need to know what that is, because it really does have huge implications, not only for your regulatory initiatives but for your voluntary initiatives. So, I wanted to just talk to you about a new development, and that is that OMB is requiring the Agency to develop an overall information streamlining plan for the next four years that will project for every information collection that this Agency imposes on the community -- and that includes construction regs, of course, and construction programs -- a plan for reducing that burden as the Paperwork Reduction Act requires. The PRA requires that this Agency and every other Federal agency reduce its paperwork reduction by 10 percent in '96, 10 percent in '97, five by, five for the following four years. That's a very large cut in the number of hours of paperwork we impose on the regulated community.

The other side of the coin will be if we cannot find room, find ways to reduce our paperwork burden, we will not be allowed to impose new burden, which has clear implications for any rules that you would like -- that we would like to put out and for any voluntary programs that we hope to, you know, involve the community in.

So, Paperwork involves voluntary programs as well as regulatory programs. There is very little that's outside of the -- if you're thinking about paperwork, it's under it. So, it's a really -- it's become a very, very serious tool. OMB is the final arbiter of what is Paperwork. The Paperwork Reduction Act is not judiciously reviewable. The end of the line is at OMB. They interpret this very, very narrowly and working with them on this issue is very serious.

Some of the rules upcoming for you have serious Paperwork implications. Safety and Health programs I hardly even need to mention. It's very broadly scoped. It will clearly have Paperwork burden. So will -- so does Steel Erection. I've actually figured out what that is. I can't remember it off the top of my head. And certainly Confined Spaces.

So, the position we're -- we find ourselves in is one where we need your -- we are going to be coming back to you and we need your help. We all hate this exercise, believe me. But we are going to need your help, because there are better and poorer ways of reducing paperwork, and we need your brains to help us decide which are the best ways of doing this that will still allow us to keep worker protections as strong as possible. The other side that always gets forgotten is that side, and it's critical that this Agency not forget that its mandate is to protect workers. So, Paperwork Reduction needs to be done in ways that meet that primary mandate, and that's a challenge.

The obvious simple-minded way to do it is just to start slashing. That would be a disaster for us and for workers. So, we will be coming back to you, I may be coming back to you, specifically with proposals or ask your help: how should we best do this in the construction area? And it won't be possible for one directorate not to participate because everybody's doing regs and doing voluntary programs. In fact, we got, and I have to read this to you, I got a very nasty note from OMB about the Roofing Initiative, which is, as you know, something that you care about too, and it says: "To be perfectly honest, I am very concerned that OSHA is recklessly undertaking initiatives..." -- that's the Roofing Initiative -- "...which contain unapproved information collection components. Although I would prefer to resolve these concerns at the staff level, I am prepared to elevate these violations to a higher level as soon as necessary."

So, our "reckless" disregard of the Paperwork Reduction Act they picked up on by reading an article in the BNA, which we thought was big stuff. This is the Roofing Initiative. We're proud of it. It's a voluntary initiative. Isn't it great? And we got clobbered and I had to go over there and do some fast talking. That program, gives you an example, that program is under -- it is under because OSHA, although not on the Steering Committee, sets criteria and has been involved in setting that program up, in a sense sponsors that program. That puts you under the Paperwork Reduction Act. That's a good example. So, I got my paddy slapped hard on that one.

Anyway, there are -- you have two -- two of the construction rules are a big factor in our top sort of ten big hitters for paperwork. Lead in Construction is very big. It imposes over a million hours of paperwork a year on the regulated community. Certifications for Testing, and you -- this is, I think, was the subject of some of this debate. Your part is not huge, but I think about 700,000 hours a year are from your test records, your certification test records. I'm not sure that number is exactly right, but it's close. So, those are two biggies that you have, just to give an --

So, we will be coming back and asking for help.

MR. RINGEN: You first, and then Bill.

MR. BURKHAMMER: In your gathering of these hours, what have you come up with for initiatives such as the Data Collection Initiative and Revised Recordkeeping. Confined Space Survey eventually is one that requires a tremendous amount. Safety and Health Management Standards. It's going to mean about everything we do.

MS. KENT: Right.

MR. BURKHAMMER: And especially the Musculo-skeletal Disorders Workgroup, where Congress is now allowing us to collect data and do research. How does one mandate of that such affect the OMB?

MS. KENT: We have to get clearance for every data collection that we do. So, for the Data Collection Initiative when we go out and do those surveys of employers to get that special establishment of specific data, we have to clear it with OMB. It takes about three months to do that. It's fairly -- it's pretty detailed. However, that didn't impose such a huge burden as some of our regs do, but it's still serious and we have to count it.

Now, the OSHA 200 and the 101's do impose major Paperwork burden, not just in construction but, you know, everywhere. They are one of our biggies, clearly. The new rule that's coming our will reduce that to some extent, that is, the Paperwork burden will get reduced in the new version because fewer employers are going to be covered and so on.

But it's a huge exercise. First of all, we're still in the process of inventory all -- inventorying all of the Agency's programs, because people don't understand they're under this Act. I mean, we're used to thinking of it in regulatory terms. We are not used to thinking of our voluntary -- our VPP Program and our Consultation Program and those things being under. So, we are still inventorying so that we can get an accurate count of what the total burden the Agency imposes is so that we can figure out the most intelligent ways of reducing it. But the recordkeeping stuff is big.

Bill, did I manage to answer yours too?

MR. WILLIAM SMITH: Yes. It seems to me that, I guess from the numbers, in that six-year period you're looking at somewhere around a 40 percent reduction --

MS. KENT: Yes.

MR. WILLIAM SMITH: -- of the current paperwork or recordkeeping requirements --

MS. KENT: Right. That's correct.

MR. WILLIAM SMITH: -- the Agency has, and that's real tough.

MS. KENT: That's really tough --

MR. WILLIAM SMITH: -- as you said, about the mission of protection, because Brad's here too and he sits with me on a B-30 committee that we have for Train Safety --

MS. KENT: Right.

MR. WILLIAM SMITH: -- Standards, and part of that committee, even -- and it's the industry involved, and there is one OSHA rep there -- but it's 35 people from the train industry and a big part of standards setting for safety involving trains is inspections and logs and --

MS. KENT: Right.

MR. WILLIAM SMITH: -- recordkeeping --

MS. KENT: Right.

MR. WILLIAM SMITH: -- because you have to inspect the equipment as it goes through the process to be order -- in order to determine what needs to be fixed and what needs to be --

MS. KENT: Right.

MR. WILLIAM SMITH: -- repaired. And then when there's an accident, you guys need to come in and say: when did you find this out and did you take actions to fix it? And if you didn't, then you really should, you know, be penalized for not doing so. And if there's no records there --

MS. KENT: Right.

MR. WILLIAM SMITH: -- then it's almost like we're really going way backward.

MS. KENT: I mean, employers like -- I mean, they like -- they want to have something, you know, documented. So, that was -- that's a very good example of what we're up against here.

MR. WILLIAM SMITH: I sent the letter to the committee that I sit on there explaining that I think that the Paperwork Reduction Act will affect 1926.550 in the recordkeeping requirement and --

MS. KENT: Yes.

MR. WILLIAM SMITH: -- inspection criteria for Cranes and that the committee should send letters to OSHA saying, you know, look, we are a national standard-setting committee and at the industry we agree with this and we think this should go forward. We may have to reemphasize that again as it comes up.

MS. KENT: Right.

MR. WILLIAM SMITH: Okay.

MS. KENT: Right.

MR. WILLIAM SMITH: I'm just wanting to make sure that I'm in line with --

MS. KENT: You are. Absolutely.

MR. WILLIAM SMITH: Okay.

MS. KENT: And that's a perfect example. We would have -- we would come to the committee and say: help; we all think this is very important, where are we going to get the hours to do this? And it is a terrible problem. OSHA is the number-two agency in the United States for imposing burden, right behind the IRS. Now, I find that an amazing thought, since EPA, for example, produces a thousand minor regs a year while we produce -- you know, we limp out with five or six. It's sort of amazing. And they produce several hundred major regs.

So, I've been going to school at EPA. That is, I've been trying to figure out how they are so clever and how they have managed to do some of this. But we are the number-two agency, and that makes us a target both of Congressional inquiry and of the GAO and agencies like that. So, we are really getting it on this.

MS. OSORIA: Just, in terms of the Act itself, I haven't read the whole thing, just little excerpts, but is there no room for an exemption?

MS. KENT: There are rule -- there are a few exemptions allowed under the Act. For example, our Enforcement activity, thank heavens, is allowed out under the administrative exemption, but there are very few other exemptions that the Act allows. There are a few, but very few. And, unfortunately, regulatory and voluntary program activity isn't -- is not among the things that they allow us to exempt. Otherwise we'd have to go and clear our enforcement. Can you imagine it? I just don't want to think about that. But so far we're okay there.

(Off the record.)

(On the record.)

MS. KENT: Okay. The 40 percent reduction you're talking about is -- assumes that we aren't going to do any regulating, so, you know, to the extent we regulate it's got to be more than 40 percent. So, that's the story.

And let me know if there is anything that the Committee would like from us, any, you know, further discussion or papers or briefings or whatever on this horrible topic. Please let me know and I'll be happy to oblige.

MR. RHOTEN: I have a question. Would you go through those numbers on the lead again, please?

MS. KENT: On Lead in Construction?

MR. RHOTEN: Yeah. Yeah.

MS. KENT: Okay. I don't have the exact numbers, but it is one of the information collections that the Agency has that is -- that's over a million hours a year. In other words, that's -- the OMB really targets anything that's over a million burden hours a year. Because we have a lot of regs that have small amounts of burden, but we have several biggies, and one of them is Lead in Construction, and that one is over a million. I don't know how much over a million. I mean -- the biggest one for us is Process Safety Management. Hazcom is right up there. But Lead in Construction is up there. Lead in General Industry is up there. And our summary and our log is up there. So. It's just up there. It's not the worst by a long shot.

MR. RINGEN: And they're very important records that need to be kept.

MS. KENT: Very important records.

MR. RINGEN: Stew, you had a question?

MR. BURKHAMMER: As a thought, you said inspections are not included in the overall standard. Well, if that's the case, then why couldn't you take a lot of the required recordkeeping that employers need to support inspection, pro and con -- if you get cited for something, you need all kinds of records to take -- to fight the potential citations. You have to have maintenance records. You have to have certification records for almost all equipment that you need in case of inspection questions or ramifications. Why couldn't you take some of those and include them as part of the inspection process and use the process as an entirety and not just --

MS. KENT: You don't mean take them out of the reg and put them in a Compliance directive. You mean leave them in a reg --

MR. BURKHAMMER: Leave them in a reg but they're -- tie them to --

MS. KENT: -- but make the case that they're --

MR. BURKHAMMER: Yeah.

MS. KENT: -- enforcement related?

MR. BURKHAMMER: Yeah.

MS. KENT: We're going to try -- we will try that. Can we take you with us? We will try that and we will try lots of other things. It's now been put into my office specifically, so that we can start making -- having real strategy -- develop real strategy for dealing with this thing, because otherwise it's clear to me that we're really going to be hurt by it. But that's a real good idea. I mean, that's one of the ideas we can try.

I have to tell you, OMB is not keen on a broader interpretation of exemptions, but --

MR. BURKHAMMER: That's because they don't work for a living.

MS. KENT: That's true. Well, they don't work for a living? Is that what you said?

(Laughter.)

MS. KENT: I wasn't -- I shouldn't have said "that's true."

MR. RINGEN: And on the record?

MS. KENT: And on the record. Sorry. I didn't hear the end of what you said.

MR. RINGEN: Marthe, isn't part of the problem with this that the Agency has calculated and vastly overstated the amount of burden hours that go along with its recordkeeping? At least, when we have the stuff that came before us last year about certification issues, you included every hour of training that was required in the paperwork burden because that led to the record, when in fact the amount of time it took to fill out the record and store it was very, very short.

MS. KENT: Right.

MR. RINGEN: Isn't that the real issue? Not the whole activity; rather, what it takes to do the paperwork?

MS. KENT: Unfortunately, the Act defines "paperwork" as all the activities leading up to the keeping of the record. So, I would argue exactly as you do, but I would lose. So -- but I think there are some things that we can do. I think that we can strategize. We need you to help us with that to find some ways, creative ways, of claiming over time paperwork declines under the standard. I mean, I just think we're going to -- we'll have to do it. We're going to have to do this.

MR. RINGEN: Because that's the problem we had last year when you came.

MS. KENT: Yes. And I understand why.

MR. RINGEN: There was --

MS. KENT: It's frustrating.

MR. RINGEN: And many constrict-- that it didn't make any sense --

MS. KENT: I know. But, as I said, the Congress loved it, passed it zero -- with zero opposition, and the Administration signed off. So -- anyway, so I think I'll be back probably. And I appreciate your questions.

MR. RINGEN: It's not that we don't want you back.

MS. KENT: Yeah. I understand.

MR. RINGEN: Nothing personal. Anything else?

(No response.)

MR. RINGEN: Marthe, thank you very much. It's time for a break and we will start again at -- in 15 minutes. That would be 10:45.

(Whereupon, a short break ensued.)

MR. RINGEN: We can get started again. The next presentation is from NIOSH. This is another thing that we -- this is another thing that we've talked about in the last two or three meetings, is getting a -- at every meeting a detailed presentation on some facets of NIOSH's research activities. One of the exciting developments, from my perspective, that's happened in our industry in the last five years has been the development of a dedicated and substantial research program in our, in our field at NIOSH, and we're starting to see the benefits of that now and we'll hear something about that today. Diane, if you want to start?

MS. PORTER: Yes. I want to thank the Committee for your continue interest in the science phase with respect to what we're doing in the area of construction and today I want to introduce to you Ken Mead, who works for us in Cincinnati. He's a mechanical engineer and works for the Division of Physical Sciences and Engineering. And he has had a quite successful effort, he and several staff working with him, in the area of asphalt paving. You've heard Bill Smith refer to this earlier today about trying to make sure that this information gets out to the Regional Coordinators, and Ken's here to make the presentation and to hand out the latest pamphlet that we have put together.

LT. MEAD: As was said in the introduction, I work in the Division of Physical Sciences and Engineering, and more specifically in the Engineering Controls Technology Branch for NIOSH in Cincinnati. There's a co-project officer that's been with me on the project, and that's Leroy Nickelson (Phonetic), who also works in the same branch and division. But in addition, we've kind of had an external project officer, so to speak, and that's Tom Bromigan, who works for the National Asphalt Paving Association. You'll find out we've kind of changed the mold a little bit in several aspects on this project in terms of --

Briefly -- try it again. Briefly, the Engineering Controls Technology Branch, we look at different engineering control technologies we can use to reduce occupational exposures in the work environment, and it's kind of a three-pronged approach. You can either identify existing off-the-shelf technologies and do an evaluation on those, and then disseminate that information throughout an industry. Another option, though, is sometimes if something off the shelf was not there, then we will do our own unique designs, test it somewhere, and then disseminate that information. And then, lastly, when we can we like to work with individual equipment manufacturers and we can help them change the design of their individual piece of equipment in order to incorporate some engineering control features.

And that's exactly what we did in this case. It's a piece of equipment we were working with was an asphalt paving machine. More specifically, we were looking at highway class pavers. These are the larger machines that you see on the major highway projects. And even more specifically than that, we were looking at the auger area on these paving machines. Previous experience had told us that the majority of the fume generation appears to be coming from the auger area, which is this area towards the back. You have hot-mixed asphalt during the paving process is dropped into the front of the paving machine. It travels back to the auger. And then the screw augers laterally distribute the asphalt across the paving. We have a lot of churning going on back there with the hot asphalt, and that's where we were seeing the majority of the volatiles and the fume generation.

So, we focused on an engineering control system which was targeted at that location, and in this case we were looking at a local exhaust ventilation system, a combination of an enclosure area, an exhaust hood, incorporating duct work and exhaust fan and exhaust stack.

And here's a schematic of one of the early prototypes that we were looking at. You see towards the back we have a slot hood that goes over the -- what -- the augers. You then have duct and the exhaust stack there. This particular design was also looking at incorporating part of the exhaust into the combustion and burning it through the tractor engine. And there's a photograph of that same slot hood there over the auger.

Now, the National Asphalt Paving Association had actually started this research project before NIOSH became involved, and they started it in 1993 at the request of one of their paving contractors to approach some of the equipment manufacturers and on their own initiative said: can't we identify some way that we can reduce the fume exposure to our workers? NAPA developed a task force to look into this and had paired up three equipment manufacturers with three paving contractors to develop some initial prototypes, did some field evaluations looking at various techniques. And by the time all that was done, there was certainly some indication that local exhaust ventilation did provide some merit in terms of exposure reduction.

They then wanted to go further into the research. They sought somebody from the outside that -- so it would be an unbiased performance evaluation and some additional expertise, perhaps, in how to optimize those engineering control designs. So, they approached the Federal Highways Administration and requested that FHWA fund NIOSH engineers to participate in the program. That funding was granted.

And about that time a lot of other players also became involved. And I'm probably going to make a mistake and leave somebody out, and I apologize up front if I have, but in general we have NAPA, I've already mentioned, the Asphalt Institute. Several of these -- both the Operating Engineers and the labors unions were involved. Several divisions within NIOSH, Federal Highways with the funding and oversight. A lot of these organizations were involved in doing peer review on our protocols and making sure that the approach we were taking sound reasonable for the industry we were looking at.

We developed a two-phase protocol to do the evaluation. There was a lab phase and a field evaluation. By going into the lab first and looking at the prototypes in that environment, we were able to isolate the engineering control design and then provide recommendations to optimize it before we got out into a real field environment -- where most of us know all those variables that are there, it's hard to tell what influence you're having as opposed to Mother Nature and everything else that's going on.

A laboratory evaluation. We like two, so our laboratory evaluation had two parts as well. We had a theatrical smoke part as qualitative evaluation and we used a new tracer gas technique new to the evaluation of a local exhaust ventilation system, the way it was used, but not new necessarily, because it's been used for several years in indoor air quality and the heating, ventilation, air conditioning industries.

This is just a photograph. We used a theatrical smoke generator. We used a PVC pipe with holes drilled along the top of it in order to create a distribution plenum. We could qualitatively evaluate the capture of the system and watch the air flows in and around the paving machine.

If we're going to have a testing area, we need to make sure that after we captured and removed contaminate that it stayed wherever we moved it to, so we had to figure out a way to separate the contaminate exhaust. We were able to use the smoke to help us verify that the separation in fact worked.

This is a photograph of the outgoing exhaust side of a paver during testing. And this is the testing area of that same paving machine. Since the tracer gas we use is invisible, the smoke test allows us up front before we start doing the gas testing to make sure we've got a good seal between the two areas.

We thought we were going to do a little bit of particle counting with the smoke. Ideally we thought we were going to hang this handheld aerosol monitor at certain work stations and evaluate -- and we turn the smoke on and we put the controls on and we'd turn them off, and we would see what the, what the ratio was between the two. But we quickly found out that that wasn't very viable, not enough to do an evaluation. We would have certain situations where numerically, because of the point source or the point detection limitations, numerically it says we're getting great control, but visually you can look and see smoke escaping. It just hadn't -- wasn't escaping where the detector was at. So, we abandoned that and decided to use smoke for quantitative only.

And that leads into the tracer gas evaluations. The gas we used, sulfur hexaflouride, it's safe, used to be cheap -- price has gone up tremendously in the last year now, unfortunately -- but it quickly mixes with the moving air flow. It very accurately measured down to the five parts per billion range. We could use it for exhaust quantification as well as to determine a capture efficiency.

This is a small schematic of what our setup looked like. We just used a pressurized cylinder. It controlled the flow through our tubes using electronic mass flow control system. And then at the end of the control system, we used a plain tube ending or used a distribution plenum, depending on which evaluation we're using.

So, to quantify, then, an exhaust volume, in most cases the manufacturers weren't sure exactly how much air they were moving. We then took the plain end of the tubing. We stuck that tube -- we have two tubes going directly into an exhaust up here. You're looking down on a large exhaust hood over -- on the top of an auger. By sticking those tubes directly in the exhaust duct, we now have an artificial 100 percent capture scenario. We can then take and go downstream after the, after the gas has been diluted in the air stream mixture and measure that diluted ratio. And depending on what that dilution is, we can determine what the exhaust volume was that was mixed with the gas.

To determine the capture efficiency, then, we went to the distribution plenums, which I pointed out earlier. This photograph was taken laying down on the floor looking into the end of an auger area of a paver. Those are the augers up above. We have a distribution plenum here and another one on the far side. We took the same flow rate of the tracer gas and released it underneath these augers, and then put the exhaust fan on. We now have a diluted concentration measured downstream in the air flow, but it's not going to be as high as before when we did it directly into the duct. So, we can take that measurement, divide by the earlier measurement when we were doing it for the exhaust volume, and that gives us our capture efficiency.

So, what were the results in the indoor evaluation? We had five manufacturers participating at this point in time. It was like over 84 percent of the highway class paver sales in the U.S. For the most part, no surprise. The more you exhausted, the better your capture efficiency was. There were a couple exceptions.

This particular unit here we had a problem with engine cooling air making its way back into the auger region. In that case we were able to give the manufacturer specific recommendations on what he could do to stop that. If we had gone out into the field and found that out there, it would have been too late. So, they changed their paper design based on this test.

The other one I want to point out here for a moment is this one here at 989 cfm, and I'll refer to that in a moment. But if you look now and remember that it's getting about 90 percent, 90 percent capture efficiency in the indoor test.

We then repeated the test outdoors. Again, basically the same protocol. Stationary test. We varied the orientations to the prevailing winds outdoors and we got new results.

First of all, starting off with the light purple there in the front row, these are capture efficiency bar graphs. Now, we only took the best-performing hoods from the indoor evaluation, so we now only have five in the outdoor testing. We're not paving yet. It's still stationary. But if you look here, we can go to the left and see what the capture efficiency was. Two of them I want to point out. This is the one that had engine cooling air blowing into the back auger region. We wouldn't have expected that one to perform well. But the one next to it, look at the 989 cfm. It's gone from 90 percent capture efficiency down to less than 20. Well, part of the reason why is if you look at the back row at the maroon bars, we've now assigned a qualitative value based on visual observation and engineering control. Going from 0 to 100, how much enclosure did the manufacturer incorporate into their design? And if you look at the back, at that time that particular design was only looking at about a 30 percent enclosure. When we got outside and let Mother Nature blow on it a little bit, it didn't work very well. We saw a dramatic reduction.

So, all this was phase one study. And what were the outcomes of this? Well, our partnerships were formed and were very strongly established and we relied on that very much. We got, the researchers, got a good introduction to the asphalt paving process. You know, we drive by it every day, but that's about was the extent of my knowledge going into this. So, that gave us a knowledge base before we got into the field to do research. We were also able to provide the manufacturer, though, with some very valuable, I believe, recommendations on how to optimize their designs before we got into the real paving environment to do our evaluations there.

We did our first field evaluation in June of '96. We did five field evaluations, each about a week long, and we finally finished our last one the week before Christmas, of '96 as well.

Our evaluation methods. We had a modification of the tracer gas. Obviously if the auger area is filled with asphalt, we can't put distribution plenums under there, so we had to come up with a new means to get our tracer gas in the auger area. We also did industrial hygiene samples over the auger area and personal samples at the various work stations and general area samples at the work stations as well.

We had about 11 different types of direct reading instruments which were looking for particulates and organics mounted to a sample from various work stations on the paver as well as the auger area, and we synchronized the time clocks on all these pieces of equipment with a video camera which recorded everything we did in the field. Later on in our data analysis portion, if we ever see a spike and we want to know what's going on, we do look at the time log of where the spike is occurring, go to that particular piece of video footage and cue it up, and we can see what activity was exactly taking place then and find out whether this is something unique to the paving process or was there something special going on there that caused that spike to artificially go up. We also monitored physical environment, temperature -- temperature, wind speed, and we did a little bit of grab sampling for noise as well.

By the time we were done, we had a lot of equipment on these pavers and we were in competition with the workers for who -- where they got to put their lunch coolers and where we got to put about $300,000 roughly of analytical equipment. This is all equipment that was not designed to be out in the field, by the way, so that provided some unique challenges of its own.

This is a photograph looking down at one of the auger areas. We had four samples here. We had four sampling locations over the auger and each location had four samples: two analytical techniques, and then you had to have two times, one with controls on and one with controls off. So, everything was getting multiplied. In addition to that, the little yellow item there and the little needle you see there, that is an injection orifice or -- orifice we use an injection needle to get our gas with enough velocity so it would get down to the surface of the asphalt, and that was how we injected our asphalt into the area.

Just a photograph showing a general area sample at one of the street-operated positions. And this worker has a personal breathing zone sample as well.

Photograph shows a variety of the electronic direct reading instruments we had on there. These things literally looked like they had been invaded by the time we were done. The most difficult part was probably keeping the top deck clear so that people could move around without tripping, getting up and down the ladders without tripping. We used whatever baskets and field-expedient ways we could to mount equipment on this thing.

We also logged the temperature and the time and departure of each of the asphalt vehicles -- the temperature of the mix, in case we needed that information later on in our data analysis. It was kind of an overkill. Gather as much as you can. We can decipher later what exactly we actually need to use. But in order to get all the field studies done within one paving season, we just -- we gathered all the data first and now we're wading through all the analysis.

This is just a graph showing the exhaust volumes in the field versus in the lab. The blue was the lab exhaust volumes. Every manufacturer had a modification to their design in one extreme or another.

Now we're going to compare those exhaust volumes and relate them to the capture efficiency as determined using the tracer gas method. As you see, there's a little bit difference now between the exhaust volume, and the capture efficiencies don't necessarily stay as close to that. The reason is, I believe, that our manufacturers learned quite a bit about the value of enclosure in an outdoor environment, and that's exactly why like site A there performed so well. Even though the exhaust volume was so low, they had probably one of the best enclosures of all the ones we looked at.

Now, everybody wants to know. This is a new tracer gas technique you're taking into the field. What does it mean? How do you interpret it? Does it work? And we're just now getting to the point where we're crunching through some of this data. But in comparison with the -- what I'm calling the IH samples, the comp and sorter (Phonetic) tube samples that were done over the auger area, we did a little comparison here, and in general we'll see that we followed the basic trends.

The blue is the tracer gas and the red is the industrial hygiene samples there. We're never going to get an exact correlation. When we're doing the tracer gas samples, we made sure that we were running -- we were in the middle of the run, it was the optimum time to be testing. The industrial hygiene samples, because of the nature of how you do an industrial hygiene sample collection, unfortunately there's time periods when you're waiting for a truck to back up, you're not paving, you're not doing anything, and so the values get diluted somewhat. But even in spite of that, I think there's still a fairly close -- and exactly what those correlations are, we'll numerically define in the months ahead.

So, we've done quite a bit of work so far. We know we have a lot of work still yet to do. What does the future hold for us? We have a lot of data to go through. Each field survey gave us about 225,000 to 250,000 direct reading data points to look at. We have about 200 hours of videotape per field survey -- no, excuse me -- over all the field surveys to look at. And so all of these things will be looked at closely in terms of trying to figure out what does all the data mean. We don't want to give it a quick and dirty evaluation and give very wide confidence bands without giving it further analysis.

So, we're going to look at the worker exposure reductions. Work to date has been looking at how well we're reducing the source, the auger area. We want to do -- see what's happening to the workers. We're going to look at commercial class pavers. We're already talking to the people who work with pavers smaller than highway class and trying to establish a similar relationship with those manufacturers. There's a retrofit issue. How does a contractor get engineering control protection on his paver without having to go buy a new $200,000 paving machine. And we will -- although that issue may end up answering itself. And we also -- something that recently came up is the issue of odor reduction. Some technologies that are currently directed towards odor reduction in asphalt plants may provide some benefit to the worker exposure where they're not masking the odor but they're chemically altering the constituency of the exhaust very early and looking at that as a preliminary idea, but we'll give it a look and see if there's any future, in our opinion.

So, whatever outcomes, a very wide effect across the industry. We had a partners' meeting in July in which we put together a -- NIOSH has guidelines for engineering controls for highway class pavers. I handed them out to everyone at the front and then there's more at the back of the room. Included in those guidelines is the analytical method for doing the tracer gas, the indoor lab tracer gas test. That's in the appendix, and this appendix was then later referenced in a voluntary initiative between industry, labor and OSHA to incorporate these engineering controls on all new paving machines manufactured and delivered after July 1st of '97. So, very quickly into this research we're having an impact with what will eventually be 100 percent of the workers that are using this equipment.

Our partnerships have continued. They've maintained strong. We improved the value and the effectiveness of the controls. We've identified new methods for doing analysis and mobile engineering controls. And we've been able to demonstrate a reduction of the fume, and we'll put exact numbers on what those reductions are in the months ahead.

This is just a photo of one of our field sites. We spent a lot of time and effort and spent a lot of money on equipment evaluating how well these things work. One day we're in the field. A rain storm comes in and Mother Nature demonstrated very quickly for us how well those new controls were working, and she didn't charge us a dime. So.

MR. RINGEN: Thank you, Ken. For those of you in the back who have not seen this booklet that Ken handed out, it's Engineering Control Guidelines for Hot-Mixed Asphalt Pavers. Any questions? Comments? Bill?

MR. WILLIAM SMITH: I'd just like to comment first on -- and the work with him and NIOSH and all the people involved in the project. You talked, you talked in the very beginning about the alliance and the workers and the partnership. And where Joe Dear wanted to go, Bruce, as you said, he was here for all the term and the last 72 hours he finally got to where he wanted to be from the very beginning, but -- and I don't know if we're ever going to get another allegiance or an alliance and a partnering of this nature before, but here we had a Government research body involved, we had the manufacturers of equipment involved, we had the associations, via NAPA, involved, we have both union and nonunion contractors alike in the association and outside involved, and we have both the organizations that represent the employees involved in an effort. Where we still had major problems and major differences throughout this whole phase, but in -- the end result was worker protection and doing it realistically and logically and commonsense kind of finally entered into a program. And we got to where we wanted to be in the end result. And even though we had arguments, everybody stayed in the room and we met at a bunch of places, and we hashed it out and we come to a real good conclusion.

That last picture of the exhaust, that's the blue smoke and the blue haze that's been around workers for -- from the time we started building roads till now, where you just taste it in your mouth all day long. And we pass it by in the cars just quickly, you know, as you pass by and you can taste it in your car, much less being in it for eight, ten hours a day. So, that's the haze that hopefully will be eliminated. At least we got it away from them. It's still released through the air. And we know at times it's going to blow back again, depending on each, you know, road that you pave, but for the most part in 80 to 90 percent of the applications it's going to be removed.

So, it's a great effort and we want to try to do the same program with Cranes and the like and Certification and go down that road of that partnership path. So, excellent effort.

MR. RINGEN: So Crane Seating made it?

MR. WILLIAM SMITH: Correct.

MS. JENKINS: I just would like to comment. My company was part of the original research done. But I just wondered, does your research contain any statistics that show that there are injury, illness, or fatalities attributable to asphalt fumes?

LT. MEAD: None of our research -- I'm an engineer. So.

MS. JENKINS: Well, is there -- are there any statistics?

MR. WILLIAM SMITH: There is -- the thing that pushed this, the thing that pushed this initiative, let's say, to go forward is the link between asphalt fumes, benzene, basically, or some parts of asphalt fumes and cancer, the carcinogenicy of the fume, and that's the element that pushed this process along. Is it? What is it? At what level does it kick in? Can we eliminate what's there?

So, what we did was as a group said: look, if we eliminate the exposure we probably eliminate the problem of asphalt fumes and cancer. So, our first initiative to go forward is to take the fume exposure that was around the workers and try to exhaust it away from them and get rid of them. So, that's the program that we're going. I think the efforts are going to continue on does asphalt fumes cause cancer or doesn't it? There are studies that show that in certain cases certain tars do cause cancer when you skin-paint rats, and that's where it all started from. But the element of "does this asphalt that we work with in the United States building words today cause cancer or not?" is so far up in the air that it is going to take years and years to finally find out if it does.

LT. MEAD: One precautionary statement, if I can make one, is that I don't want anybody to think when they see exposure reductions in the lab test -- or even that we haven't eliminated 100 percent of the exposure. What we've done is taken the major source, though, and we've shown a good reduction there. And, you know, it's a first step in the right direction, but I -- it's not totally eliminated and I just don't want anybody to -- I wish it was, but it's not.

MR. RINGEN: Thank you. There is another project like this going on that's also very successful right now, and it has to do with trying to reformulate cement to reduce -- to first of all to look at whether there's a need to reformulate, and then to see how cement can be reformulated to reduce contact or skin dermatitis, dermatitis of different kinds. Where everybody's cooperating very nicely and I think have a good result.

MR. WILLIAM SMITH: Bruce, this is the type of information I mentioned earlier about getting it to the Regional Construction Coordinators and passing it further down locally to the individuals at the job site to try to start to look for the engineering controls, especially since there is that memorandum or somewhat of a recommendation of a voluntary guideline. And we might be able to just keep emphasizing to the contractors that they should be going to this method. And that's what I was asking about earlier.

MR. RINGEN: Any other comments?

(No response.)

MR. RINGEN: Thank you, Diane. Next on the Agenda, Mr. Cooper, Settlement Agreements. Do you want to start this out?

MR. COOPER: Love to. This is a proposal on -- I don't know what you have in the Agenda on Settlement cases for OSHA. This Committee was established under the Construction Safety and Health Act and mandated to advise the Secretary of Labor on OSHA policy and practice. And as a member of this Committee in the '70s and participating with this Committee in the '80s and now as a member again in the late '90s, I think the adage is true that "knowledge is acquired in the field of endeavor" in that many of us in the construction industry and some in OSHA feel a new direction in policy should be implemented.

So as to advise on the policy matter, I wish to propose a better and more productive means of settlement policy between the Agency and the employer during the pre- and post-citation settlement process to achieve lasting improvements in workplace safety and health. That is, in exchange for a reduction in penalty, the Agency should seek commitment from the employer, specific changes in the safety and health program, or even in company policy, relating to safety and health issues. These issues could include, for example, the development of a specific program to alleviate the alleged hazardous practice, the employing of a company safety director or outside consultant, a regular schedule for monitoring the workplace, or any improvement, any improvement that the parties may agree upon that establishes a long lasting improvement in workplace safety and health.

In the past and present it is common that the inspections are made, citations are mailed within the six-month time limit, 15-day notices are given for contestment, and informal conferences may be held, and settlement can be negotiated, and if not the case comes before the administrative law judge. Now it is even common to see a negotiated settlement after the decision of the administrative law judge when appealed to the Review Commission. These settlements are normally resolved over monetary issues with the following result: OSHA has fulfilled their mandate, the employer has transferred funds to the United States General Treasury, and the violation is corrected. In this last decade substantial chunks of capital have been transferred to the Treasury instead of improving the workplace and, in many cases, an equal amount has been disbursed for legal fees.

Let me make it plain, Mr. Chairman, that I'm not proposing that settlement policy not include a monetary penalty, nor am I proposing a separate administered fund for training or any other item, nor a change in the Act, nor that OSHA mandate each and every settlement to conclude with specific changes in company policy or programs. What I am proposing is that OSHA as a matter of written policy and practice offer and propose specific workplace changes as part of the settlement process, and I would assume that upon acceptance this would result in reduced penalty. If the employer wishes not to negotiate this issue, then that is their prerogative.

Let me give you an example of a recent and uncommon settlement within our industry, a settlement which OSHA and the solicitors were at first reluctant to accept, a settlement where the employer and employee representative agreed to initiate substantial workplace improvements not proposed by OSHA. OSHA agreed to these proposals and settlement and now praises this particular settlement as follows:

There was a substantial reduction in penalty. The employer made scheduled payments of a lump sum for penalty. The employer established a written system of self-monitoring or monitoring by a third party. The employer implemented specific training related to the citation and initiated disciplinary action against violators of the policy. The employer employs or engaged a full-time qualified safety person to monitor worksite conditions with the authority to stop work when unsafe conditions are unabated and report it directly to the company president. The employer as a part of the settlement got the union, in this case it was the Ironworkers Union, to cooperate in administering and documenting specific additional training for every employee and future employee of the company. The citation was reduced from "wilful" to violation of Section 17 of the Occupational Safety and Health Act.

This type settlement has done more to substantially improve safety and health at that employer's worksite or workplaces than all the transfer of payments crisscrossing the nation. Monetary penalty is still important and should be issued; however, safety and health improvement at the workplace comes first. You should notice that most items of settlement in this particular case are over and above OSHA regulation. This settlement did not delve into OSHA regulation as much as it delved into improving the workplace.

To this end, we would like information from the Agency regarding its current policies and practices in settling citations and we'd particularly like the Agency Representative to address the following issues:

Does OSHA currently have any policies for securing commitments from employers to undertake actions other than paying penalties and abated the cited hazard as part of the settlement agreement? If so, what is OSHA's policy? Have they utilized the policy in the construction industry? And I can say they have recently. I'd like to see it happen all the time. What kinds of employer commitments will OSHA accept as a basis for reducing a proposed penalty? How does the Agency communicate its policy to the Regional Offices and how does the Agency monitor the Regional Offices' implementation of the policy? How does OSHA assure that the terms of the settlement agreement are fulfilled? How does OSHA monitor a contractor's continued compliance with the settlement agreement. As a contractor moves to different worksites, has the Agency assessed the benefit of these kinds of agreements; and if so, what are the results?

In addition, does OSHA have a policy regarding involving employees or their designated representatives in the settlement process? If so, what is the policy? Has it been utilized in the construction industry? How has it been communicated to the Regional Offices and the -- how does the Agency monitor its implementation? And does the Agency have any mechanism for involving employees or monitoring the employer's implementation of the policy?

That concludes my remarks, written remarks.

I would like to say that we many times, and we've all been around here for some years, many -- a lot of us since the starting of the Occupational Safety and Health Act, and it gets down to writing a check to somebody and getting unhappy and the job cops go their way and nothing really happens substantially on the worksite. It does not take a change in the Occupational Safety and Health Act to promote a policy of working with the employer to try to improve that worksite as part of the agreement. And as I said, again, if the employer wishes not to do that and go through the normal negotiations which ends up with a check being passed in the mail, that's their prerogative.

Thank you, Mr. Chairman.

MR. RINGEN: Thank you, Steve. Any comments about this?

(No response.)

MR. RINGEN: You -- can we have a copy of your written -- you went through a lot of stuff. And what you're asking is that OSHA respond to the issues that you raised at the end of it, right? By -- in time for our next meeting?

MR. SWANSON: No. We'd like to, if we may, respond now. I mean, we can do this right off the cuff.

(Laughter.)

MR. SWANSON: But Mr. Donnelly got a copy of these questions prior to this meeting, so it's not --

MR. DONNELLY: Prior to the meeting.

MR. SWANSON: -- it's not quite off the cuff. Before Mr. Donnelly starts, if I may, two comments.

One, being familiar with the particular Ironworker case in question, it's surprising that it was out of the -- that it was an Ironworker contractor. But it was a settlement that we would hope is prototypical. I mean, it was a, it was a good settlement. I agree with what Mr. Cooper had to say. There are, there are elements within the settlement agreement that accomplished far more than the mere payment of a penalty would.

That said, and being in full agreement with Steve, I do wish to add the caveat that there is, there must be, there always will be a place for a monetary penalty for those employers who have not had the foresight to abate the hazards before the citation, which is always an opportunity that's out there. The monetary penalty will encourage, perhaps, people to pre-think this. But, all of Steve's other comments are totally appropriate. This settlement agreement in question went well beyond what we have made as our standard format in the past 20 years, and I hope it is a prototype.

With that, I'd like to ask Mr. Donnelly. Mr. Donnelly, would you introduce yourself to the panel?

MR. DONNELLY: I'd be glad to introduce myself. I think I know -- I met most of the Members of the Committee. I am Ray Donnelly. I am Director, Office of General Industry Compliance Assistance, which is connected to this subject in the sense that we produce the directives that govern field enforcement policy, including what there is on settlement policy, and that predates the split of the organization into the Construction Directorate and all. So, we are still involved with that.

Let me just start off by saying that I really did get these questions only a day before the meeting and consequently I have not got the kind of organized response that the questions deserve for some of the things that really could stand to be quantified and compared for construction versus general industry and so forth, to see if there are differences in practice. I just would say up front I think that's a fruitful thing to be done and something that I would like to commit to do, you know, resources available, and I think we can talk about a time-line for that.

What I would like to do is talk generally, though, about the -- what we have on settlement policy and how we got there. And I can go back about eight years on this to when we began to incorporate wide settlements. OSHA has previously done settlements on a case-by-case basis from its beginning, formal and informal, by the processes that I think you're all familiar with.

About eight years ago we began to change our strategy and in certain cases, mainly some of our egregious cases, go for corporate-wide settlements that would impose as an extra term of settlement the same abatement methods throughout a corporate structure. I think the first one of that kind was with International Paper. We had an egregious case in Jay, Maine, involving a chlorine bleaching operation, and through that settlement agreement we were able to get abatement in 11 other chlorine bleaching operations within the International Paper structure. That agreement was interesting in that it also -- this, first, was the technical kind. We had done some for recordkeeping. But this was one that had technical requirements and involved third party monitoring, not certification, but third party monitoring of the implementation, which is another kind of thing that we have demanded in some of these more formal settlement agreements.

So, from that point we have also applied that corporate wide settlement mentality and patterned that operation to other kinds of violations. Notably, we did that in ergonomics and came up with some ergonomic settlement agreements that developed the kinds of safety and health programs that would address ergonomics problems, and that ended up being summarized in our Ergonomics Meatpacking Guidelines, which were put out, I guess, about 1989 and are still out there. Basically, it is the kind of thing that Steve Cooper is talking about when he's saying: looking for the extras over and above payment of the check and simple point abatement of the hazard. It's a systemic approach. It's something that we have advocated not only for the big cases but advocate with our Regional Administrators and Area Directors for other kinds of settlements. And particularly when we are giving up penalty, that we expect not only to get abatement but also to get significant and lasting systemic improvements.

Now, one of your pointed questions was: where is all of this written? And the answer basically is that what is written is in a Directive called CPO 2.90, Guidelines for Administration of Corporate wide Settlement Agreements. That was done in June 1991. We do not have a lot of other written policies on settlement. Part of the reason for that is that much of what we do has been a matter of discussion and internal discussion with the Solicitor's Office at our Solicitor OSHA conference in various years, in our Solicitor OSHA Enforcement Standing Committee -- Policy Standing Committee, where we have developed what amount to informal guidelines for settlement, but they have not been reduced to Directives. We have kept that internal. I think the reasons for that are, you know, fairly clear, that you don't go into negotiations having published what your -- all of your bottom lines are when you start, or else they really are not negotiating, are not in a good position to get creative settlements.

Having said that, the things that we are missing that are on your list are an analysis of the kinds of settlements that are going on apart from the corporate wide type of settlements, things that happen day by day in the Regions. About 90 percent or more of the contested cases are settled in the Regions and Area Offices without going further, so most of the settlement agreements are what happens in an Area Office. Frankly, those things usually do not come to Washington. We don't see them. If we want that information, we're going to have to go out and get it. So.

We've moved down your list of questions then. So, what is OSHA's policy? The policy in these terms is to get these sweeteners, these extra lasting abatement means whenever we can get them in negotiation. It is a negotiation process that's another variable in this and we have to remind our own people to look for guidance, that you can get what you can get in a negotiation. This is not -- if you cannot come to terms and have flexibility, then you often have no settlement and you have litigation and delayed abatement, if any, in that kind of a case.

We have accepted formal safety and health programs. We have accepted the use of third party monitoring or even third party supervision of implementation on some cases, which is not the same as saying we accept a third party certification that abatement has occurred. We verify abatement on our own through monitoring inspections, through documentary trails on abatement.

Along the same line about how do we verify abatement, there is an abatement verification rule that has been in the pipeline, as I think you're -- you probably are aware, for a couple years. I understand that that has now been cleared for publication and will be published shortly, so that that will begin to address some of the -- our ability to require documented -- excuse me -- documented proof of abatement and in a form that we have customarily asked for and usually received, and now we'll have some regulatory authority behind that to require that kind of abatement.

We are -- I -- we are not convinced that we have all of the solutions for construction site abatement verification in that. The problem of moving equipment on and off a site is not perfectly settled, especially if the equipment is leased equipment rather than owned. Those are things that still remain to be worked out. Temporary worksites and going from one site to another obviously is a problem for monitoring, not to mention the volatility of the industry and the rapid opening and closure of small businesses in construction operations, which can also confuse who has abated what and who is repeating a violation at any particular time. Those are things that all of us are going to have to continue to work on. I know the Construction Directorate is also aware of these problems and we're all working on it.

For how -- let's see. You have asked some specific questions here.

Has OSHA implemented such a policy in the construction industry? I think we can say that we have issued one policy for OSHA which has applied to the construction industry as well, and the -- that goes for such things as involvement of employees in the process too. Our policy has been to involve employees who are -- if they are party to the case. They are involved in the settlement. The degrees of involvement have varied and they will continue to do so. The level of interest on the part of the employees varies greatly. It varies often between what a local may be concerned with and what the international representatives of the union may be concerned with. That can account for a degree of involvement. Where we are able to do so, and particularly in the major cases, we try to have the union reps at the table during the negotiations. If that is not possible because of the tone and tenor of the negotiations or just the process of litigating with the employer, we have tried always to keep the unions and representatives involved and aware of the process, in on the discussion through separate discussion, separate parallel kinds of discussions. The policy is at least to be sure that the union -- employer reps are aware of the settlement agreements before they are finalized. Often that is -- I can't say it often. I think sometimes that is a matter of informing, sometimes on short notice. That has not been entirely well-received or satisfactory. That's an area I think we can talk about, procedures on how that can be changed and improved.

Basically, that's about as far, I think, as I can go in answering the list of questions, but I think it's an area that we certainly are willing to continue to discuss and pick up on -- follow up on, you know, for subsequent work.

MR. RINGEN: Thank you. Any questions? Steve?

MR. COOPER: Thank you, Ray. --

MR. DONNELLY: I don't mind. That's certainly --

MR. COOPER: The questions are not trying to pinpoint who shot John. They're just questions that were raised. But the issue is still the policy of OSHA from the Assistant Secretary on down to the regional offices, at least in my opinion, that if they would promote this looking into settlement issues which affect the jobsite and negotiate -- try to negotiate in settlement those issues versus the check, it would do what we're supposed to be doing here as a committee and as -- and it would promote what the Act is supposed to be doing, is to enhance safety in the workplace, safety. And we get in this little money game back and forth and no one really generates enough out of that.

But the issue is only this: can or will the Agency put this as an out-front policy till its all the way down to the Area Offices so when citations come out and they have to come out those citations with the employer, that they will be able to discuss improvements in the workplace as part of the settlement -- and does -- with reducing the penalty. And if the employer doesn't wish to do so, that's their prerogative. It's not a big deal, but it can be a very, very big deal.

MR. DONNELLY: Well, let me comment on that. I think, I think we are aware of the need to review the settlement procedures that we have, and to that end last year we pulled together a field task force to look at current settlement practices and to see, working from our existing Directive, just, you know, how well those procedures still fit today's operations, and there are -- we were looking primarily at procedures and how decentralization has worked and where settlements occur, you know, whether it's necessary to involve Washington in a settlement or not, say, for instance, when it crosses regional lines.

We started with those questions, but I can tell you that it is clear that the kinds of things you're asking for are the kinds of things that the members of that task force report are happening, that they are looking for these things in settlements.

Now, what your questions point out, though, is the next line of inquiry, which is to say: how uniformly is that happening and is it different in the construction setting in some way than it is, for instance, in general industry? I think it's probably easier to talk about these things in a general industry setting where you have a less volatile workplace than it is in construction. So, I think that that is the direction we need to go.

We will be, you know, looking further into the need -- and in writing some directives and some guidance to the field on these things. That is the planned next step and, frankly, it's a workload question to get, to get it onto the agenda, but I -- or, you know, further on the agenda. But it's there.

MR. COOPER: In closing, Mr. Chairman, I just want to give you an example, Ray --

MR. DONNELLY: Okay.

MR. COOPER: -- and I'm sure you've read this cases that we're involved in, and I know some cases are now following this procedure or preceded this procedure. To give you an example, which I didn't speak on before, part of that settlement which I advised the employer not to agree upon and did -- and the employer did agree upon was, and I have the settlement in front of me: for a period of one year from the date of this settlement agreement that the employer will notify the appropriate OSHA Area Director of the locations where the employer has employment, by address, and they agreed to advise OSHA of the work locations within ten days prior to the planning and starting the work. Now, I advised the employer not to sign anything as crazy as that. But that was part of the settlement. And I'm giving -- I am promoting the issue that whatever the Agency and the employer agree upon is their business. But it can, it can be far-stretching and help safety and health in a lot of areas over and above the regs. Thank you.

MR. RINGEN: Is there any other comments on this? Bill?

MR. WILLIAM SMITH: Yeah, I just had one question. In OSHA's policy is it, is it a policy or is it sporadic in different parts of the country where if I'm an OSHA Compliance Officer and I walked on the construction site and I see violations that are there based on the regulations of the law, can I get -- can I -- do I have the ability as a Compliance Officer to get with the employer at the time and ask him to immediately abate the problem and then not give a citation? Or does a citation have to be given?

MR. DONNELLY: The way that that should work, there's a citation with a credit for a quick fix. Now, what happens informally may be different than that even.

MR. WILLIAM SMITH: Okay. Because that's -- that -- I mean, that's what we're talking -- that's -- it's food for thought in the future because -- based on the --

MR. COOPER: It's -- my experience on that, it depends on the, on the COSHO. I think, by law the Compliance Officer is obligated to write down that specific citation. But in real life, many times COSHOs will say: you've got a big problem there; you better fix it before I write my report. But they don't do that continuously, because there would be no report at that time. But I've been on -- of 50 of these things.

MR. DONNELLY: I mean, the policy is: you see it, you cite it. On the other hand, we also are looking for a quick abatement on those things, and that is the primary goal, is to get the abatement, not to calculate, you know --

MR. RINGEN: Harry?

MR. PAYNE: I'm curious as to what the relationship is with the state plans. Because we've been doing quite a bit of this, in terms of trying to get above compliance and towards excellence. And one of the things --

MR. RINGEN: Excuse me. Can you speak into the microphone?

MR. PAYNE: I'm sorry. I'm curious as to what the relationship is with the state plans and what the Feds' expectation is on this. We as a matter of course do a great deal of this kind of thing, trying to get companies beyond compliance and towards excellence and are working with measures about how you measure that progress. One of the things we have looked at is not an activity thing, such as hire someone or develop a plan or, you know, fire three people, it's about outcomes. Like the earlier speaker this morning was, if over time you reduce your experience X or if you lower carpal tunnel -- you know, obviously is a good illustration -- what I want to encourage you, is if you're looking at this policy is to look at some outcome-based things.

And in some cases we've done some community service where you have one company in a town that's a monolith in terms of local opinion, to have them sponsor safety schools or teach locally. Or if they are purchasers of a lot of the commodity in the community, they have a better impact on the local businesses than we would ever have. And if they can host something in a community-service way, that seems to have the potential of attracting more attention than if the OSHA Department happens to have a program.

But I'm curious as to what the Feds look at when they monitor our program as to how much authority they give us in reaching these agreements and, too, whether or not you've looked at performance-based outcomes rather than activity-based outcomes in terms of occupational health?

MR. DONNELLY: Well, I think -- I have not -- I am not aware of any criticism of the states on the issue of settlements. And in terms of the leeway, that is, a lot of the states and the monitoring relationship that we have with them, I think that you really need to talk with our Federal and state operations people, who could give you a precise answer on that. I think it's -- offhand, though, I think it's one of these situations where Federal OSHA also needs to lead by example. This is a matter of gathering good ideas. Some of the things coming out of states in many safety and health areas are also good and they should be picking up on the program and vice versa. So, I would suggest if you, you know, really want to get down to the technicalities of what the states are allowed to do, probably Barbara O'Bryant (Phonetic) and her staff would be good to talk with.

The other thing that you mentioned about involving the community is, I think, a very interesting idea, and I would just point you to the experiments that are going on with our Canadian counterparts, notably in Ontario, right now. They are using a community-based safety approach, including everything from the drunk driving and fire prevention issues right on up through boating safety and occupational safety and health and trying to get a community kind of program going -- for exactly the reasons that you named, that these employers are often much more sensitive to the community perceptions and contributions than they would be to a regulatory approach, that there may be some proof there and I think it's one of the things you ought to be looking at.

MR. RINGEN: You may also want to look at how EPA negotiates settlements with third party groups, like environmental organizations and so on. It's very innovative.

So you'll get back to us later in terms of the rest of these questions?

MR. DONNELLY: Thank you.

MR. RINGEN: Thank you. Thank you, Steve.

MR. COOPER: Thank you.

MR. RINGEN: I think we're all in agreement that this is an important issue.

Next on the Agenda is Bill Smith, Subpart N.

MR. WILLIAM SMITH: Mr. Chairman, if you will, you've given me either the best slot or the worst slot in the day's Agenda, depending on the length of my presentation, since we're so close to lunch.

Based on an extreme survey of this Committee and the history of this building with the cafeteria, if you're not there by 12:00 and you're there at 12:30, quarter to one, you may not get nothing but leftovers.

MR. RINGEN: Well, are you suggesting that we take a lunch break now?

MR. WILLIAM SMITH: I suggest that if you could --

MR. RHOTEN: Mr. Chairman, if I might, if you're going to yield to lunch, I need about five minutes, if I could, please --

MR. RINGEN: Go ahead, sir.

MR. RHOTEN: -- on another separate --

MR. RINGEN: We will take you after lunch.

MR. RHOTEN: -- issue all together.

MR. RINGEN: We will take Bill Rhoten now before lunch on your issue.

MR. RHOTEN: And I'll keep it to five. And I -- we've got a concern with argon gas, and I want to talk about that for a minute. From August of 1994 until January this year, we lost five UA members of asphyxiation with argon gas. We went back in our records in the archives of sorts and found out in 1979 in a fourteen-month period we lost five members to argon gas then. In 1995 out of approximate 1,000 deaths, 20 percent were asphyxiation. And I'm not certain what percentage of that is argon gas, but I'm certain it's there, or other inert gases.

So, what I would like to do is get some information and maybe some help from NIOSH. First, I'd like to know what part of those 200 deaths in 1995 were with inert gases and how many were argon gas?

And then when that information is gathered, I'd like to explore the possibility of putting an odorant -- adding odorant to argon gas. The people that we lost were trained -- mostly. There were two apprentices that weren't. I can't speak for the five members in that fourteen-month period in 1979. But I would like to explore the possibility of having an odorant added to argon gas and maybe some other types of inert gas that are used in the construction industry. I understand it's a little research and help from the center. That in France there is some kind of odorant that is required to be added to oxygen for some purposes.

So, in any case, I want to just get that thrown out and see if we can get that information back from OSHA. And then I thank you. If it -- you know, it's not unlike the coal gases in England. When that, when that gas was developed originally, there was no odor in that gas. And then when they blew up a few houses and there was a public outcry, reluctantly the industry added the odor to the, to the natural gas, and they didn't do it voluntarily either.

But I think if we can determine that it's possible to put this odor in this gas and lay this on the steps of the industry, and I'm sure they have the expertise and it is in fact physically possible, I'm sure they would voluntarily try to comply.

MR. RINGEN: Diane? We are looking too?

MS. PORTER: Yeah. Certainly with things that we have going on in NIOSH in construction, we'll look at some control technology issues and take it under advisement with the research program that we have going on.

This gives me an opportunity to kind of announce that one of the things that we're doing in NIOSH to solidify the construction program is to hire a permanent construction coordinator. Marie's been serving in that capacity, Marie Sweeney, who you've met before in that capacity, for the last year-and-a-half, I guess, and I'm trying to do two jobs at once and it's just becoming impossible to be able to stay on top of the partnerships and some of the other issues that are really important in the construction industry, as you can see from Ken's project and others that -- and the outcry for -- the need for research in this area. That job is up now and we'll be hiring very soon somebody to be the permanent coordinator.

So, yes, we'll be having someone look at --

MR. RINGEN: Are you looking for candidates?

MS. PORTER: Well, it -- currently we're doing it as an internal announcement. We're looking for somebody in the Institute who has research experience in construction, knows it, and that's, and that's the current direction we're going with respect to restrictions on FTEs and things like that. So.

And just to announce to the Committee as well, I am committed this afternoon and tomorrow, and so I won't be able to be here for the rest of the day, but Marie will be sitting in for me. So.

MR. RINGEN: Glad to hear that you're making this permanent.

MS. PORTER: Yeah. That's right.

MR. RINGEN: Anything else? We could take your report before lunch, but you want to wait, sir?

MR. WILLIAM SMITH: Yes.

MR. RINGEN: Okay. Then we'll break for lunch. Let's start again promptly at 1:00, please. Thank you.

(Whereupon, the luncheon break ensued.)

A F T E R N O O N  S E S S I O N


MR. CLOUTIER: Mr. Chairman, I've had a chance to look through this National Homebuilders Association Jobsite Safety Handbook and I think the intent here is to provide a good working document to our homebuilding workers. However, I've got some questions on some of the illustrations or photographs in here. I would hope that the Department of Labor and maybe the Directorate of Construction were part of whatever photographs and illustrations were put in to make sure they're conveying the right method and the right safe work practice. And I see some areas of concern in the book that bother me. We may be sending out the wrong message to our workers.

And the second thing is they mentioned this morning they're going to have this made into Spanish -- translated into Spanish, and I would hope that any documents coming out in the future that they automatically be bilingual, especially in the residential and -- family business the majority of those workers now are non-English speaking and speak Spanish. But I hope that someone will take a long hard look at this document before it goes to republication. Maybe there needs to be some revisions in here. But I think there are some errors.

MR. RINGEN: All right. And maybe you can just send the comments on to Bruce about where you think that there are things that need to be fixed in it.

Any other comments about this?

(No response.)

MR. RINGEN: Stew? Your working group report on Musculoskeletal Disorders.

MR. BURKHAMMER: Thank you, Mr. Chairman. I appreciate the opportunity to give this today. I still don't whether I'm going to be here tomorrow or not.

The ACCSH Workgroup on Musculoskeletal Disorders in Construction is back in business. We had about a year or so hiatus. Then Congress allowed OSHA to continue doing research and studies. That put us back in the game.

We had a good meeting on Tuesday. We had quite a few people representing several associations and interests that joined us. We started the meeting by handing out the minutes of the last meeting of October '95. And the final draft of Musculoskeletal Disorders in Construction, a document that the workgroup had been working on but never finished, which we turned over to OSHA as an unfinished document when we were shut down.

We spent most of our meeting looking at data and research that had been done since our last group session, and three in particular that we spent some time on, three studies, were two by Dr. Cook and his associates on musculoskeletal systems, symptoms among construction workers in pipe trades and work-related musculoskeletal disorders in bricklaying. And then Scott Schneider from the Center to Protect Workers' Rights, who is the group secretary, gave an excellent report on Dr. Anders Englund study in Sweden where they studied 92,700 Swedish construction workers. And we had a lot of data that showed that musculoskeletal disorders are indeed prevalent among all those who responded. And I think it again leads credence to the fact that we do eventually need to work our way to a development of a standard in this -- in the theory.

We will be continuing to do research, and that's what I've told everybody we're going to do and that's what we're going to do. We're going to study as many things as we can find and many studies that are out there. We're going to work with the different agencies around the world in gathering data. Musculoskeletal disorders to construction workers are the same kind of injuries that you're going to find in Sweden or Germany or France or -- no matter what country it is, the work's the same. The carpenter does carpenter work no matter what country he's in, and a pipefitter does pipefitter work. Lifting is lifting. Bending is bending. So, the data I think is prevalent, no matter where it comes from. We're going to certainly look at all the data. And hopefully we can someday, it may not be in my time, but someday get to -- back to the development of a musculoskeletal disorder standard for construction. Thank you.

MR. RINGEN: Thank you. You certainly held yourself to your time limit. Any questions? Any comments for Stew?

(No response.)

MR. RINGEN: I appreciate it. So you're going to be meeting again between now and the next -- our next meeting?

MR. BURKHAMMER: Yes, we will.

MR. RINGEN: Okay. Next issue is Subpart N, Cranes, and Bill Smith has requested to make a presentation on that.

MR. WILLIAM SMITH: Thanks, Mr. Chairman.

MR. RINGEN: Let me get out of your way.

(Pause.)

MR. WILLIAM SMITH: Just briefly, before we start with a real brief slide presentation, also in CCO, this morning we talked about the asphalt fume issue and the partnership and the -- and what derived from the industry voluntarily, let's say, taking the initiative and moving forward with participation from all parties, including the Government at one stage -- or at the final stage of the game, where Joe Dear signed a Memorandum of Understanding buying into and recommending that they use the engineering control devices as a means to protect workers.

Following up with that and continuing with that, I asked for some time today to talk about Cranes in general, about certification of crane operators, to be the particular topic, but also to talk about Subpart N and the fact that since 1970 Subpart N, like everything else, has not been changed. And currently under 1926 guidelines, 550 subsection for Cranes in Subpart N, OSHA still cites the fact that by reference they use a B30.5 industry standard that was adopted by reference and such that it becomes a part of law basically, but that B30.5 standard was published back in 1968, and that's currently the standard that they're still using. So, we all know for sure that there is definitely a need to look into Subpart N, if, for no other reason, just to bring it up to date and up to speed to 1997 and the year 2000 as it goes forward.

Back in October of 1992, the ANPR was published, the Advanced Notice of Proposed Rulemaking, asking the industry for public comment on Subpart N from 1926 as well as -- I use a different -- around general industry 1910 standards and crane services. They received a ton of comments back then. They are still basically sitting idle in that content. There hasn't been much done with them. We had started a subcommittee way back when, at the advisory group here, a workgroup. We just talked about it briefly and we stopped, because we knew there was initiative going on outside the organization with CCO. And that's why we're going to try to bring the Committee back up to speed today.

We do know there's still definitely a real problem -- a major problem with crane fatalities or fatalities involving cranes in a bunch of different areas. Hopefully that --

Bernice, did that continue? On both sides I handed out -- in fact, Owen, you can take this, now, this pile here. There's three different sections. For the Committee, and I don't, I don't know that there's too many left over, Knut. I don't think so. The Committee first, and then if someone wants copies they can -- we can make copies and get them to them. I already passed them out on that side. There's two sections, one on each side.

But, for the Committee's sake, this report that I passed out in front of you today is a report that's in its final stages. It's almost ready for completion. It was done by an individual named Anthony Siruto (Phonetic), who is an M.D., but he works for the University of Utah School of Medicine in Salt Lake City, Utah. And, basically, you'all can read a report from the background forward, but what I want to do for the Committee, to show the problem that still exists, as we well know it to be -- everyone from the industry knows it to be. But if you can flip back to the, to the tables in the back of it, table one, which is somewhere around the 11th page, I guess -- and everybody can read through the front part of it at their own leisure. But basically -- keep going, Owen. If you can go back to the back, you'll see table one, which comes up about -- up in the right-hand corner you'll see number "12" on the fax page.

But this is a study done from BLS Statistics using SIC codes 15, 16, and 17, talking about deaths and how they relate to cranes based on the fact of what the information was received from OSHA. But as you see here, the total from '84 to '94 of crane deaths -- or deaths involving cranes through the investigations, we had 502 deaths recorded total with a fatality rate of 1.07 per 100,000.

The numbers, if you go to page 2, you see that the -- as we know it and have always known it -- but electrocution being the highest cause of fatality involving cranes with power line contact. 198 of the 502 were involved in electrocution.

The second one, crane assembly and dismantling: 58. That was a little bit shocking to us, the Operating Engineers, to the extent that that out of this ten-year period was the second highest. And, really, the bottom line about it is that in mantling and dismantling of booms it deals with training and supervision and proper methods, because what's happened is people are knocking this, as we from the industry know, you're knocking pins out incorrectly and the boom's collapsing on the individuals beneath them, beneath them. And it's a sad situation that that happens to be number two, because really it falls down to a method, supervision, and training to correctly and, in this case, incorrectly assemble and dissemble cranes in the industry. We were shocked that that number was so high, because that doesn't deal with operation as much as it does procedures.

The next couple, the next couple tables you can look at yourself. We wanted them, because it was done with us, we wanted them to look at collective bargaining agreements, non collective, union, nonunion -- if we could derive this information. In some cases we did. It's not really relevant to this Committee and it's not really relevant to anybody outside, only to the extent that we would like to find out on our own.

If you look at table number seven that talks about types of fatalities involving cranes, the fact of, and this is one of the things we wanted to know: is it the crane operator himself or is it other workers that are injured in most cases? And as you can see, and it's commonsense, that power line contact was the highest of deaths and is also the highest number with other workers, because basically the crane operator to some extent is insulated as long as he remains in the crane. It's everyone outside who is making contact with the ground. And as everyone knows, electricity is going to take the least -- the path of least resistance. So, the workers that are holding the load or holding the line or leaning on the outrigger or in any case touching the machine when the power line contact is made is the one that's going to be destroyed.

The other workers are still the highest. The crane operator comes in the case -- in most cases with upset and overturns, and that's just because he's in the cab and maybe he's got that -- going down with the ship mentality. Some of them bail out, some of them can't. Some of them, some of them don't. But that's the highest number of fatalities with the crane operator.

So, as we can see, the certified crane operator is an important task for us to resume, but it's really important for the other workers in the area around the crane based on these numbers here of the victim status. So.

The very last table is the number of fatalities that occurred within that ten-year period and how many were within each year, and there's no reason or rhyme to it. You can see they go up and down the scale. And in 1990 we had the highest number, and there was basically 70 fatalities in that year involving a crane mishap of some sort, as it was recorded on the -- through the OSHA statistics. And there's no rhyme or reason that we know of at that point.

But basically what I wanted to do was show the study, talk about why we're here today, two of the reasons. One, I also handed out a flyer on the CCO, the National Commission for the Certification of Crane Operators, as well as a handout that goes with it, which is questions and answers about the certification.

So what I would like to do at this point is go through a real brief slide presentation. There's only about 10 or 12 of them. Give this Committee a background on what CCO is all about and this national commission and this voluntary effort that's taken place outside of OSHA at this point, but within the industry, the same way the asphalt fume issue generated itself, due to a presumption of cancer and fatalities, and here a definite statistical analysis of death and fatalities associated with cranes.

And the reason I'd like to talk about the CCO certification is and I want this Committee to get a good background about how this thing was created was because we're going to, we're going to start the subcommittee or the workgroup back up again in this area. We're going to look at the CCO and the people that are involved in the CCO program, and I want this Committee to understand how the CCO program evolved and who all the players are and what it's all about, because we'd like to come back to this Committee with a recommendation to OSHA for a memorandum similar to the asphalt fume, but also look at Subpart N and what we're going to do with Subpart N and recommendations to that.

We just explained -- we talked about -- I'm not going to read each slide, but basically we know what the indications of crane operator certification are about: safety, proactive, self-policing, professional status, the images. Real costs associated with them: personal injury, workers' comp -- everybody knows and is worried about -- safety record, property damage. These are all the issues that drive this force. The benefits are explained right here. There is definitely a clearer safety record, a lower -- fewer accidents, the whole nine yards. These are just some of the backgrounds and benefits of why we are where we are today with this certification.

The commission was created to focus on these elements. One of the key things, halfway down in develop and administer nationwide certification program, which really there is none out there now that's recognized. We have little pockets of best interests all over the country with different programs it will do, training and certification, but there's not a national program in place that's recognized by the industry, the users, the manufacturers, and everyone involved.

To let you know about a brief history, and that's why this is important, the SC&RA, which is Specialized Carriers and Riggers Association, formed a task force back in '87 to create the policy on credentialling. The board of directors approved and adopted a policy in '90. A steering committee was formed in '90 also. They did like we did, contribute to the comment period back for the ANPR back in '92 when it was put out. Everyone got their comments in by '93. They looked and identified professional credentialling firms. They looked at a bunch of firms out there and they ended up with PES, Professional Examinations Services, which is in a future slide. They also incorporated the National Commission for the Certification, because they separated an entity away from SC&RA, being the association. The association is the one that started this course. The association is a group of union and nonunion companies, employers within the industry. It's similar to what NAPA did for the National Asphalt Paving Association in the asphalt fume issue. The participants that are so far involved in it: crane manufacturers; the inspectors; operator training providers; the carriers; safety specialists; consultants; B30.5 members, which I sit on; Carsen Honeycutt; Brad Clausen (Phonetic), who's here in the office -- in the audience today; crane rental companies; contractors; educators; the Department of Defense; the Department of Labor; unions; operators -- everybody's involved in it to that extent.

At this point I'd like to say that we've met and we've talked to a bunch of people. The only, the only part of this program -- or the only participants so far that we are -- we're aware of that has any little bit of a discrepancy, let's say, or problem with the CCO and the way it's going is under operator training providers. From the very beginning -- what happened was CCO started out by just saying: well, all we're going to do is certify knowledge requirements for crane operators; we're not going to get involved in training whatsoever, as far as the national commission. We do training of the operating engineers, outside training providers, North American Crane Institute, crane certification. There is a whole bunch of them across the country. There's a lot of them down in Florida that'll do operator training. But in that they also provided certification at the end of their training course, because you have to somehow evaluate a retentive knowledge that you acquire through that training. So what they would do was they would test their operators and then they would give them a certificate. This certificate may or may not be some kind of a conflict, you know, in that operator training course, but that's -- to this date that's the problem that we see with the CCO out there so far. Nothing from most of the group or most of the people that's involved in the program. It's just a little bit of a rub or a little bit of a conflict between a national certification versus a local certification, let's say. And that's why we're trying to show the CCO and the development as to how it was established.

There's a board of directors that sits on a commission. Carsen Honeycut is the president currently. The terms do expire and the people do change. Carsen Honeycut was just put in '96/97, I think -- Steve? And Carsen is with J.A. Jones, which is also Stephen's company. George Braddick (Phonetic) with Braddick Crane Service from California. Skip Johnson, who is the treasurer. He's also with American Equipment Company. He also has his own training company. And I believe that he's also the representative or works closely with the Associated Builders and Contractors, which is the nonunion side of the organization. John Claflin (Phonetic), which is from the manufacturer of Linkbelt. Frank Gainlin (Phonetic), who is the general president at my organization with the Operating Engineers. Dave Law (Phonetic), who is with Nicholas (Phonetic) Construction, which is a contractor. And Joe Shull (Phonetic) is also a board of director now, who is with Grove, the manufacturer Grove Worldwide in Pennsylvania.

A brief -- his breakdown of the structure, you've got the board of directors and then you've got a commissioner level. There's a bunch of us that sit on the commissioner level. Below the commissioners is committees. You've got a certification committee, exam management committee, a review committee, and an appeals committee. And you can see below them what each committee pertains to and what work is going to be conducted under that committee.

This is where CCO hired PES, Professional Examinations Service, to assist in the development and administration of the certification. They ensure that the test is valid -- symmetrically sound. A nonprofit organization they are. They were established some 55 years ago. They do provide licensing and certification services to 75 or more professional associations, 300-plus licensing boards in 62 jurisdictions.

Now, what happens in the process is that whenever there is a test that has to be administered anywhere in the country, any of the 50 states, any in the cities, you apply to PES. They give you a test date based on your schedule, and then they send a proctor out with the test, that's monitored, and they stay there the whole time. They distribute the test. You take it. There's nothing out there besides you and the test. We just allowed calculators in this last go-around with the commissioners at a board level to do the load chart section of it. So, basically it's all validated and it's all protected.

At the end of the time-frame, they are all collected, they are counted, and then the proctor from PES takes them with him and it's sent back for grading. And within four weeks time you'll get your results of pass/fail.

In the development process they did an analysis task force. They defined the knowledge required for a crane operator. They also broke it down into four knowledge areas: sight being one, operation of a crane being another, technical knowledge of the cranes being a third, and understanding and being able to decipher manufacturers' load charts and know whether your crane can or cannot handle a load.

There was three different levels you either had to know, to understand, or be familiar with. And they also did a nationwide survey of the experts. And the operators, they did 800 operators to validate the analysis of the program.

The examinations are done so that you have one core test that consists of 100 questions that are general knowledge questions about cranes and the lifting industry, and then you'll take four -- one of the four or all four specialty tests. These are the specialty examinations to get your -- for your certification, and each one will be listed, depending on your pass/fail. Lattice (Phonetic) boom crawler, lattice boom truck, telescopic boom up to seventeen-and-a-half tons, and telescopic boom over seventeen and a half. The reason there's a breakdown at the tonnage level is because from the manufacturer's point of view and from the operator's point of view, up to seventeen-and-a-half ton is usually a fixed cab rotating boom. When you get over seventeen-and-a-half tons, it usually goes into an upper structure rotating cab free-swinging type mode. So, there is definitely a difference in operation when it comes to maneuvering that around the jobsite.

The eligibility. You've got a formal application that you make in a handbook. You have to have proof of 2,000 hours of crane operation in the previous four years. You have to have a valid medical form, either a CCO form or U.S. Department of Transportation form. What we basically did in this area was we said that currently under the CDL requirements there's a CDL physical that's required. It includes physical as well as drug testing in place. And if you're going to drive a tractor-trailer on the road that's 50-some feet long and in and out of traffic and you've got the physical requirements to do that, there's really not much of a difference in operating a crane. So, instead of reinventing a wheel, we took the DOT form, changed it a little bit to fit the crane operation mode, and pretty much it's the same scenario. And what we said, basically, was if you, if you can show proof of your physical examination for DoD for your CDL license, what's -- by the way, in most cases most crane operators who go over the road with mobile cranes need it anyway because of the tonnage -- you already have that medical in place. So, we're not going to reinvent it or make it repetitive and cost people more money.

There is $150 registration fee for the core and one specialty of the four that I just listed, and then there's $5 additional if you want to take the other three, which it will be $165 total if you take all five tests. There will be about 200 questions total if you take all five tests.

The current status is this. Since April '96, pretty much up to date, there's been 1,100 operators tested. There's been 28 test administrations in different areas, 19 different locations in 16 states of the 50 states. They've had at least an administration done or a test done.

The first quarter of this year there were more than 500 operators that are registered to take the test. They're done at 19 different administrations, 16 different locations in 14 different states, including seven first states again.

The endorsement so far from the petrochemical side is that Exxon and Arco as major corporations of petrochemical are looking to endorse CCO as the method to get into their gates and do their work within their plant. Contractors that to date have signed onto this project just recently is A K Steel with a job, with Pirinie (Phonetic). Rental firms that are buying into the program: Anthony and Amquick (Phonetic). And we do have currently two insurance companies looking at the process: St. Paul and Frontier, both big insurance carriers that are looking at ways to entice or enhance the companies that they insure that certify crane operators and hopefully in the future to look at, because everybody looks at dollar amounts, some form of reduction it will bring you if you have certified crane operators on your payroll.

Exam developments. They are constantly under review. There is a new lattice boom crawler test that was implemented. And just to show you the CCO format and the PES development, what happened at one of the test sites was they went to the test site with 30 -- let's say 30 tests and they tested 27 people at the site. And when they collected the tests, they only had 29 when they went to leave the room. So, what they did immediately, and what we all did, was because maybe one of the tests was compromised at one point because it was missing from the batch of 30 that they went with, we immediately went out and put a brand new lattice boom crawler test together so that there would be -- so that security and the validation and the credibility of the test is maintained.

So, any time anything is compromised throughout this situation, we're going to immediately address it with the commissioners at board level and we're going to take and put a new test in place. There are bank questions that we'll pull from that'll change from time to time as well as just putting a whole new test in place.

There is a practical test that we're looking in the development stage at this point where in the future to be a certified crane operator under this program, you're not only going to have to take written tests, which are currently in place, but you're also going to have to do a practical hands-on performance-based testing that we're currently trying to establish the standard format for.

This is what the certificate card looks like. You'll get a big one that basically has the specialty type cranes that you passed the test on, and you also get a wallet card that'll be with you at all times at the job site, for both Compliance Officers as well as your safety personnel as well as your employment personnel.

In summary, there is a method to identify safe crane operators. The assurance of professional objective measurement is hopefully in place, and that's what we're going to -- and it's a process that we know, so it's constantly going to be changing. We're going to make it better each time we look at it. We do have experts for all different areas. The original onset of this program, there were at least 75 people in the room up in Grove, Pennsylvania, at Grove Worldwide that started this program off with bank questions and test questions.

Hopefully it is cost-effective for employers and employees, both in reduction of accidents and injuries. Results: a safer industry, higher productivity, and hopefully a better public image.

Okay. Lights.

To bring the Committee up to speed, we did have, we did have one meeting here in January, the end of January, the 29th, and basically we met with Bruce, Tony Brown, Ted Tranowski (Phonetic), who was part of the initial ANPR, Jim Rollin (Phonetic), Dan Mix (Phonetic), Steve Jones from the Solicitor's Office, and from the Commission we had Carsen Honeycut, SC&RA we had Jean and J. P. Murray, myself, Robe (Phonetic) was here, Amquick was here, the chairman of the B30.5 Committee was here, and also PES was here. And that's why we're here today, because we've met with the people to talk about the fact of trying to put this workgroup back together.

What we want to do from this stage, just to let this Committee know, is that we'd like to establish a workgroup. We want to work with all the players that were involved and anyone else who wants to be involved from the audience, and we want to send out notices to the public that the workgroup is recommissioned. We'd like to work on, for a quick result, a Memorandum of Understanding as is the Asphalt Paving Fume Association, where OSHA will acknowledge and recommend, not through regulatory but non regulatory, the CCO program as being a certification mechanism or something thereof for crane operators in the industry. We'd like to look at -- have this workgroup look at Subpart N, reopen Subpart N to the extent of making recommendations where it needs to be fixed, where it needs to be updated, and a very classic case in point is that they are currently sitting B30.5 (1968), and it's been through probably five revisions since then. And there's been a bunch of industry changes and industry standards that have changed, and OSHA needs to be as current as they can be when they hand out citations based on regulations that are not 30 years old or either used as reference points from the industry that are 30 years old.

And the last possible recommendation we might make is that if we all can kind of come to an agreeance and get away from the non regulatory and go towards the regulatory phase, is that like as was mentioned before about Subpart R and negotiated rulemaking for steel erection, there may be a possibility, and I know, as was stated from Bruce, negotiated rulemaking was sometimes expensive, but there may be a possibility to do Negreg with Subpart N. And because we have most of the people in agreeance already, we might be able to get to a quicker standard, a quicker regulation without as much controversy if we can get to this phase, and we might get a Negreg proposal out and get it done within the six months, twelve months, and then give it coverage and get it out on the job.

Any questions or comments?

MR. BURKHAMMER: What -- are you going to develop an exam for fixed boom tower cranes?

MR. WILLIAM SMITH: Tower cranes, not at issue yet. Currently right now it's only mobile cranes and it's only the classifications. We might though. The problem we have with starting it out from the beginning was we tried to look at statistically what the number of the fatalities were, and they were in mobile cranes, more so than tower boom or high -- although the highest -- the one that got the most publicity was the California accident, main street, school bus, the whole nine yards. But basically the number of fatalities are occurring in the smaller rigs, in the smaller areas all over the country with mobile cranes -- power line contacts being the most.

MR. BURKHAMMER: What's your pass/fail rate for the 1,100 exams?

MR. WILLIAM SMITH: I tell you, it started out -- it's all over the board, depending on different areas. And the unions have tested a lot. And we're trying to keep a good handle on it. We're getting somewhere in the -- we were getting somewhere in the 70 to 80 percent pass rate for the core and then down into the 60's and 70's for the specialties, because of the load charts, and some cases, to be honest with you, we've got pockets where it's going into the 50's where half has passed and half has failed, and that's scary for all of us. But that's okay, because we're willing to let our people fail, because if that's the case they definitely have to go back and get some retraining. Because, as we all know, and, I mean, our workforce in our organization is probably -- the average crane operator is probably 47 or 48, average, and that's scary, because future crane operators aren't coming up. The problem with them is they've had no formal experience. They've just had in-seat or seat time, and that's how they were taught how to run a crane. And that's okay, because they're great crane operators. But when it comes down to sitting and doing some technical knowledge on load charts and mathematics and the whole nine yards, they're falling short a little bit and we want to get them back into class so they get back up to speed again.

A lot of lifts, as you well know, the bigger lifts are usually engineered and it's pretty much done for them before they get there kind of a deal. It's the problems with the smaller RT's in the 20 and the 30 and 40-tonners that are moving all over the jobsite and picking things up and just going with it. That's where the problems are occurring.

MR. BURKHAMMER: Have you thought about tying this program in with the apprenticeship graduation?

MR. WILLIAM SMITH: We are. Yeah. I mean, we have a 40, we have a 40-hour minimum and an 80-hour advance crane operator training course that basically falls right in line with passing the CCO exam, for one, and then going forward with it. So. We have to.

MS. JENKINS: Bill, you're saying this is a part of the apprentice program right now?

MR. WILLIAM SMITH: CCO is not to that extent. The training program for the CCO testing is. We're going to -- I mean, eventually it will be a mandated time. Right now it's all voluntary. And we're asking journeyman to take and volunteer, because they're making the money. It's $165, which doesn't sound like a lot of money. But to an apprentice who's only making so much money if he's working, it's a lot. The problem with an apprentice first off is he can't even sit for the test because he's not going to have the 2,000 hours in four years today. The apprentice is going to fall in line when the practical takes place when, forget about your time in the seat, you're going to have to do a practical test to be able to pass it. That's when the apprentice level is going to kick in. Currently right now the apprentice really couldn't sit for the test, because he's not going to have 2,000 hours of seat time over a four-year period, because our program, there's three to four years length anyway. So, this is mainly for journeymen, but we're doing the training level in the class.

MR. RINGEN: Are you planning to have some sort of assistant to track the performance of the people who go through this?

MR. WILLIAM SMITH: As far as pass/fail or assist them after the fact?

MR. RINGEN: After the fact.

MR. WILLIAM SMITH: That's part of the commission, and that's what we're looking at now. Because -- and J.P. is here. I mean, one of our, one of our struggles with the system, and that's why OSHA has to -- that's why we'd like for OSHA somewhere along the line to buy in, because part of any certification program has to be enforcement. Has to be. And the certification has to be a privilege to have and protect, not a right to have, because you're a crane operator. So that when you mess up -- like you said, the, you know, the review process -- but when you mess up enough times, that certification somehow has to be challenged, or else it's no -- it's a, it's a piece of paper and it doesn't -- any of us any good. Bill Smith gets it today and I can turn over three cranes or five cranes or kill somebody and then still go to work with my certification tomorrow. So, it doesn't do us any good. So we have to have some method, and we're looking somewhere along the line to OSHA or somebody, in addition to CCO, but somebody to do it.

Now, as you can remember, in that board there is an appeals process, and that's where an individual gets a certification either taken away or doesn't even -- is not allowed to sit for the test, and then he may go -- because everybody has to have due process, he can go through that appeals process to the board level and then appeal his argument whether he should get it or shouldn't and vice versa, but there is an appeals committee already established. It's too new yet for anybody, I think, to get there, but it's there.

MR. RINGEN: I think it's a very good initiative.

MR. WILLIAM SMITH: Basically what I'd like to do is before next meeting then get another workgroup established. I'm going to invite all the people from this Committee as well as the B30.5 group that -- the 35 members of the industry, and everybody else that wants to participate, and we'll set a date and we'll get started on this process for Bruce and for the memorandum and working with OSHA in that line, because that's the quickest for us, and then we'll also look at Subpart N.

MR. RINGEN: Great. Anybody have any objections to this?

(No response.)

MR. RINGEN: Thank you. Next issue is the workgroup report on Women in Construction, which till now it can safely be said to be historic, because I don't think that there's ever been a historic -- ever been a group looking at this issue before, if I'm not mistaken, at least not in this way.

MS. SUGAMAN: No. I think you're absolutely right. I'd call it herstoric.

MR. RINGEN: Huh?

MS. SUGAMAN: Herstoric.

MR. RINGEN: Herstoric. You have worked very hard over the last two-and-a-half years, I believe, on this.

MS. SUGAMAN: Yes, we have.

MR. RINGEN: And look forward to hearing your report.

MS. SUGAMAN: Thank you.

(Pause.)

MS. SUGAMAN: Good afternoon, everyone. I'm Lauren Sugaman. I'm the chair of the workgroup and a member of the ACCSH Committee. With me is Linda Goldenhar, a behavioral scientist from NIOSH who has worked really hard on the HASWIC Workgroup and will be assisting in the slide presentation today.

I'm really pleased to have this opportunity to present our report today entitled "Women in the Construction Workplace, Providing Equitable Safety and Health Protection." We appreciate the opportunity to bring this, as Knut said, historic issue to the table to ACCSH and hopefully onward to OSHA and other agencies in the Department of Labor.

The report that we're presenting today is a product of the Health and Safety of Women in Construction Workgroup, which we've affectionately termed HASWIC. Our workgroup also is a -- has been a wonderful model of a working partnership of a number of different agencies and entities. It's comprised of a wonderfully expert and devoted group of women who represent labor, employers, tradeswomen, scientists, and Federal agencies. We've had a excellent partnership in this committee and a fairly noncontroversial and non conflictive working experience over the last two-and-a-half years, so I do have faith in this workgroup process, that it can be very beneficial, and it really pulls in the expertise of a lot of parties.

ACCSH Members should have received a full copy of the report that this presentation is based on. If you haven't, additional copies are at the front, and I believe additional copies are also in the back for members of the audience, and you also have an outline of our presentation today.

This is just going to be a summary presentation of the documents. I hope you've had a chance to read the document or will make time to read the full document. The slides that we'll be presenting along with my talk will complement the points of the presentation. We've tried to pull out some of the more interesting statistical and anecdotal information that's contained in the report, but there's lots more within the report.

While men and women are impacted without regard to gender by many health and safety issues, women working in construction have additional health and safety concerns, and some concerns of all construction workers have a disproportionate impact on female construction workers. This is really due to three factors: different physical characteristics, sex discrimination, and the still small number of women that are working in construction.

Today, nearly 6 in 10 women age 16 and over participate in the workforce, and that number is growing. While women have made some gains in occupations traditionally occupied by men, the construction trades remain overwhelmingly male-dominated. In 1970 when OSHA was first enacted, women constituted less than 1 percent of workers in the construction trades. And since then in 1995, we still -- our numbers have a little bit more than doubled, but we still only constitute 2.3 percent of the workers in the construction trades. The small percentage of women workers and the serious health and safety concerns that we may face have a circular effect: safety and health problems create barriers to more women entering and remaining in the trades and, in turn, the still small numbers of women in the trades often create an environment in which these problems continue to arise or are perpetuated.

There's really very little information that's been collected on the safety and health concerns of women construction workers. Our report is based on a literature research. We have reviewed these issues in other occupational area: women who have served in the military, women in the firefighters workforce. We have looked at the OSHA standards and we have gathered information from three studies that were specifically designed to look at and to characterize and clarify the health and safety hazards encountered by female construction workers.

The first study was one conducted by my organization, Chicago Women in Trades, in 1992. And we used mail surveys and phone interviews as well as focus groups to ask nearly 200 tradeswomen in the Chicago area about their retention experiences in the trades. Health and safety was not the primary focus of this survey, but concerns about these issues were uncovered in the responses to many other questions.

Our survey, as I said, had 182 total participants. We held three focus groups of about 50 women all together and did individual interviews with eight women. The overall response rate for women we located was 60 percent. This is a fairly high response rate. About 70 percent of the women we talked to worked in union construction, and about the same number were journey level workers in the construction industry.

The second and third studies were conducted by the National Institute for Occupational Safety and Health, and Linda Goldenhar was responsible for those studies. In the first NIOSH study 55 tradeswomen participated either in focus groups, one-on-one interviews, or completed self-administered surveys.

The second NIOSH study collected quantitative data from 213 tradeswomen and used a 1/2-hour phone interview. And the second study was based on the qualitative findings from the first study. And these studies did specifically focus solely on safety and health issues for women in the construction trades.

The results of our findings and our review are the subject of our paper and this presentation. The paper is divided into seven major subject areas where safety and health issues for women were identified. These are: training, sanitary facilities, workplace culture, personal protective equipment, reproductive hazards, and musculoskeletal disorders.

I'm going to conclude this presentation and our report ends with recommendations for OSHA, for employers, and for unions, the stakeholders in the construction industry, on actions and strategies they can take to improve health and safety for women construction workers.

I've adjusted the order of this presentation. It's a little different from the way your report is. We're going to start with a issue that's fairly easily understood in the health and safety community, and that's the question of personal protective equipment.

For women, this often means it's ill-fitting personal protective equipment and it represents having inadequate or ill-fitting clothing, boots, gloves, or safety equipment presents a safety hazard for any worker. But many women in nontraditional jobs, such as the construction trades, complain of ill-fitting personal protective clothing and equipment. When asked if they could find protective clothing to fit, 46 percent of the women we surveyed said no with respect to work shoes and 41 percent said no with respect to work gloves. Ill-fitting personal protective equipment may be due to unavailability. Sometimes manufacturers don't make it or sometimes manufacturers don't stock it. It may be just limited availability of the material. It may be a lack of knowledge among employers and workers about where the equipment that's designed for women's body structure can be obtained.

PPE that's intended for use by women workers should be based upon female anthropometric, or body measurement, data, and a recent review by NIOSH found that few tools, equipment, or clothing were designed for a woman's physique. Our recent study by the Department of Defense had similar findings. And an important thing to note in this is that you can't just downsize equipment, clothing or tools that are made for men. It has to be appropriately sized for women and men's different body shapes, and I think you can note that just by looking around the room. Our bodies, you know, have different proportions, so just to go down in size does not make a difference. And you can see from the quotes here the impact it has on women out in the jobsite.

The second issue we want to address is the problem of sanitary facilities. And again this is not a question of sanitary facilities, it's really a question of inadequate or unsanitary facilities.

Access to sanitary facilities on any jobsite can be a problem, especially on a construction jobsite. Temporary facilities are usually unisex and they often come without privacy and they're generally not very well maintained. As Stew mentioned earlier, having hand washing facilities on a site might be a novel concept for any of us as well -- or was it Steve talked about it earlier? And that's certainly not something we find on most jobsites.

The availability and cleanliness of restroom facilities is a major concern for tradeswomen. In CWIT's report 80 percent said they encountered worksites with no toilets or dirty toilets and 35 percent of the women in the NIOSH study answered false to the statement: "There are clean toilets at most jobsites."

Inadequate and unsanitary toilet facilities do pose a health risk to workers, and especially for tradeswomen, because of our different physical anatomy and needs to use -- how we use a toilet facility. The dirty facilities can spread infection. And holding urine in the bladder for more than one hour after experiencing the urge to urinate leads to a higher risk of urinary tract infections, and in fact this is a common problem for tradeswomen.

Unsanitary facilities were the subject of a 1987 U.S. Appeals Court decision where the court ruled that the condition of toilets on the site limited Construction Service Branch employees -- female Construction Service Branch employees in the way that it adversely affected their status as employees based solely on their sex. It's interesting to note that the employer, which was the Tennessee Valley Authority, argued that the portable toilets they were using had been approved by the commission established under OSHA and that female employees must accept them as part of construction work. However, the court said that the issue was not the decision to use portable toilets but the failure to furnish facilities for women workers who were, who were shown to suffer identifiable health risks as a result of using unsanitary facilities that really were in deplorable condition.

The third issue we want to address is musculoskeletal disorders. Recent studies have shown that to reduce work-related musculoskeletal disorders, tools, materials, and equipment should be designed based in part on ergonomic considerations. Given the nature of the construction industry, just like with PPE, tools, equipment and the clothing are often designed to be used by average-sized men. Similarly, studies which provide the strongest basis for the NIOSH guidelines on lifting predominantly involve male workers. We have a desperate need to increase our knowledge on the safe limits of lifting for women workers and on other motions that are common in the construction industry. And you can see from that -- just how different it is for women to do tasks on the jobsite.

The fourth area where -- is one where we have really very little information. It's on reproductive hazards. There's really limited data on the extent to which female construction workers are exposed to reproductive hazards in the workplace, but we do know that without data some employers find it easier to resolve the problem by denying job access to pregnant women rather than try to specifically address the potential hazards faced by female construction workers. Getting laid off on a job due to something that could affect your reproductive capacity is something that affects female workers much more frequently than male workers, even though there are many more known site exposures that are known to affect male sperm development than that are known to affect the female reproductive systems.

The fifth issue we're going to -- we talk about in our paper may not be commonly recognized yet as a health and safety issue. It's not yet universally recognized as one, but it is becoming more and more understood. This is the issue of workplace culture.

The construction industry has been overwhelmingly male for years, and on many sites women's presence and work is just not welcome. Sex discrimination and anti-women attitudes are still prevalent on worksites, although there are some employers who have developed some progressive policies to ensure more equitable treatment of all workers, and I'm happy to report that this is becoming more and more commonplace, but I don't think it's the norm yet.

Workplace culture issues can be reflected in four areas. There is direct hostility. There is sexual harassment. There is isolation. And there is the fear of reporting workplace hazards.

I'm going to talk first about what a "hostile workplace" means. It presents a safety and health concern on a number of levels. It can mean getting -- not getting good training. It can mean not having safety information transmitted. It can mean direct physical assault. And it can mean forms of harassment, both sexual and just bothering behavior that disrupts a worker's ability to do their job in an effective and safe way.

The possible safety and health affects of a hostile workplace can be seen in acute as well as chronic stress reactions. And stress reactions, as we've come to find out, often manifest in physical reactions and illnesses, such as stomach disorders, high blood pressure, headaches, and other behavioral reactions. And it can also lead to distractions on the job, which can lead to not taking proper safety precautions, and then you can have injuries as a result of that.

A former carpenter in the CWIT study reported that the problem is that there's a mixture of skills you don't have as a woman, and at the same time you're dealing with hostile men. You could deal with the dangerous work if the men treated you right, or you could handle the men if the work wasn't so dangerous. It's the combination that's so hard. And I think that sums up some of the effects of a hostile workplace for many workers -- many tradeswomen.

Many tradeswomen report that their strength is often tested by their male coworkers. They recount often being asked to lift or carry materials that men would not handle alone. Some women say that they often felt they had to overcompensate in their work to prove themselves to their coworkers and bosses. And many are afraid to ask for help because they think that if they do it will just increase the hostility that already exists towards them.

Sexual harassment is the second issue in workplace culture that I want to talk about. And this is a serious problem for female construction workers, who had the second highest rate of sexual harassment complaints filed with the Equal Employment Opportunity Commission per 100,000 employed women. The only other group of employed women that surpassed that was women in another nontraditional job, and that was female miners.

While the problem of sexual harassment is gaining a lot of attention recently in all workplaces and there's more and more focus on civil rights remedies, there is increasing recognition of sexual harassment also as a safety and health issue. The International Labour Organization, the Trades Union Council, and the Canadian Labour Congress have all publicly acknowledged that sexual harassment is a safety and health issue.

According to NIOSH and CWIT studies, sexual harassment is a fact of life -- a fact of working life for most tradeswomen, and you can see by the statistics from these reports that it's not at all something that just affects a small minority of women in the workplace -- in the construction workplace.

Since the numbers of women are so low in the trades, tradeswomen often work isolated from other women and often other workers, and this isolation in itself can be stress-producing, again, leading to all the kinds of illnesses that stress can cause.

And, finally, in a hostile environment where women already feel vulnerable, calling attention to a health and safety problem is not always possible or productive, or calling attention to any of the problems they face in the workplace culture. They may just go unaddressed. The women feel that if they complain about safety issues, it doesn't win points with other workers, and for some it may result in losing their jobs.

Training is a big issue for any worker in being able to effectively perform their job and do it safely, and that's -- we want to talk about that now. There are really two issues when we talk about training. One is getting good skill-based training, and the second is the limited or nonexistent attention that may be paid to safety training specifically.

Getting good training for a tradeswoman, especially if they are unwanted or perceived to be taking a man's job or that they're patronized by an overprotective coworker, can result in a real struggle. The survey respondents commented that journeymen's and other coworkers' attitudes towards apprentices, and in particular female apprentices, affected, and mostly negatively, the amount and the kind of on-the-job training that was provided, and we know that this is the most significant training you get to do your job, is OJT training.

Opportunities to learn through practice may be withheld and apprentices are not always provided with information and training on how to work correctly and safely. Some women feel that they don't receive adequate training when it's limited to learning by observation, which is a common methodology within the trades. Often journeymen don't feel like they want to be instructors on the job and it's not part of their job. "Just watch me," they say. And for many women, this means that it's harder for them to learn the tricks of the trade without kind of specific formal instruction that they may have been used to because of the kinds of cultural learning styles we develop.

Not only is that a problem, but men benefit from mentoring, coaching, and general acceptance by their male colleagues that women are often precluded from, especially if you are unwanted. So, informal training is much easily transmitted to men than it is to women. And women also report that they don't get the variety of assignments that they need to learn their trade, but that they are often assigned to routine menial tasks, repetitive or unskilled tasks like cleaning or sorting tools on the jobsite and just don't get a chance to experience the higher levels of opportunity.

On some worksite the cultural attitude of construction workers, supervisors, and the company about health and safety also often promotes the continuation of risk-taking and unsafe work practices. I think we all know that there may be a devil-may-care attitude about, you know, trying to prove that you can do it, you know, faster, quicker without that safety belt. I was often dared to toss the beam or taunted, you know, without taking the time to put on a safety belt, because you just have to prove yourself in that environment.

Some female workers also expressed that a concern that many of their male coworkers did not seem interested in participating in on-the-job safety education and training and that some supervisors and bosses did not necessarily encourage it. And related to this issue was the sense that in many instances productivity comes before safety. And we were often told that on our jobsite it just might take too long to go back down and get all the safety belts and all the equipment that you would need to do the job safely: just do it and get it over with faster. It was being -- you know, our hours were being counted.

Finally, the last issue that we want to talk about is injury and illness data and research. And I mentioned earlier that there's just very little information available. Typically, gender-specific analyses are not reported. So, we do have data now on what women are experiencing in terms of health and safety incidences, that because we comprise only 2 percent of the nonfatal and 1 percent of fatal injuries in construction, this isn't necessarily analyzed.

There's little research compiled on the issue of women in the construction industry period, and even less on women's health and safety in the trades. Without prior data collection, it's really hard to target intervention and strategies to make improvements when you just have limited data.

We do know some basic things. We know that in 1994 there were 4,400 nonfatal occupational injuries and illnesses to women in the construction industry that involved days away from work. And we also know that there have been 139 fatalities of female construction workers in the last 10 years.

As the construction labor force becomes more diversified, neither the construction employers nor construction unions can really afford to overlook these genuine concerns of health and safety that we've identified here. Whether the problems highlighted in this report and our presentation have been overlooked or if they have been ignored or if they have been discounted in the past, we feel that this document is really needed. We did it to call attention to these issues and to begin a discussion about initiatives that can be taken to address them.

The following recommendations that we're going to share are designed to help OSHA initiate and implement strategies to support tradeswomen and safe and healthy participation in the construction industry.

We have a general recommendation at the beginning for OSHA that as OSHA inspectors conduct inspections on construction sites, they pay particular attention to getting a non gender-biased perspective from all workers on the site. So, this really means don't just interview the first five male workers you see; ensure that if there are female workers on the site that you interview a representative sample of those workers as well. And we want to suggest that there's a way to talk about some of these issues that we've raised in the report that could help an inspector identify if there are safety and health concerns for -- that are specific and unique to women.

We offer that OSHA can develop a checklist based on this report and train field staff in its use to help guide these inspections.

In general, to conclude our general recommendations, we say OSHA should incorporate gender-neutral language in all the standards and training documents. We know this is beginning to be done, but some may have to go back and make revisions in old regulations as well.

To address problems in workplace culture, we think OSHA should collaborate with the Office of Federal Contract Compliance Programs. It's --

MR. RINGEN: Could you back one slide a moment?

MS. SUGAMAN: Sure. Do you have a specific question?

MR. RINGEN: I just missed the middle. Go ahead. Thank you.

MS. SUGAMAN: The middle one is really to help identify those issues.

To address workplace culture, OSHA should collaborate with the OFCCP. This is an agency of the Department of Labor, also within Employment Standards Administration, that's responsible for monitoring affirmative action, and they have responsibility for compliance around employment rights issues on jobsites. So where OSHA identifies a problem, they could collaborate with OFCCP to remedy it.

We think to address other workplace issues, workplace culture issues, sexual harassment prevention training and other issues fully integrating women into the construction workplace should be incorporated into safety and health program proposed standards or guidelines. Whatever ends up being issued should definitely speak to this issue. And that similar kinds of programs should be incorporated into safety and health training by labor and unions, employers and apprenticeship programs, I would suggest.

To address the issue of ill-fitting PPE, we think that OSHA should revise the standards that exist in the construction industry standards for PPE to conform with the general industry standard for PPE. That was revised several years ago to ensure the proper fit of each affected employee. It wasn't enough just to make sure there was PPE, but you also had to make sure that it fit each employee. We think this would help.

To address the issue of sanitary facilities, we think 1926.51, which is the standard about sanitary facilities at construction jobsites, should be amended and that it should specify that gender-separate external and internal locking sanitary facilities be provided. We also recommend that hand washing facilities be located in a very accessible location to sanitary facilities. And that if there are changing facilities on a jobsite because of hazardous material or just because they're provided, those also should be gender-separate external and internal locking.

To address the condition of -- problems with musculoskeletal disorders, any new initiatives out of OSHA on ergonomics should also address ergonomic hazards from a gender-specific perspective, and this is a good opportunity as we're developing these standards to look both at how these issues impact men and women.

To address reproductive hazards, we think there's a good set of recommendations out there, and these are the American College of Occupational Medicine's reproductive hazards management guidelines, and these are guidelines that were developed to protect all workers of childbearing capacity and pregnant construction -- and these could be used in -- to protect pregnant construction workers as well. We can share those guidelines with OSHA.

And on training, we believe that the OSHA training curricula should include gender-related safety and health issues, much like our first recommendation that's a general recommendation about a checklist, the checklist and how to use it should be incorporated in any training for OSHA field staff or policy staff.

And finally, on collection of injury and illness data and research, we suggest that OSHA work with the Bureau of Labor Statistics, NIOSH, and other agencies to obtain, but not just to obtain, to also analyze the data on injuries and illness among female construction workers. And we think all of this would make a big difference to not just improve the condition of those tradeswomen out there, but increase our numbers.

We have a specific recommendation. The committee met yesterday and we'd like to propose that ACCSH adopt our report and that upon adoption of the report you -- that ACCSH would also recommend to OSHA to develop a dissemination plan for this report and that dissemination plan we think could have three components: (1), to publish the report, (2) to convene a conference or a seminar, perhaps like a one-day seminar, as was done on ergo or the silica conference, on these issues, it could be cosponsored by a number of different cooperating agencies, and (3) see that OSHA publish an awareness handbook. And I thought the handbook we saw earlier this morning that was done in collaboration with the Homebuilders might be a good example of the kind of easy, quick-read way to identify these issues and get the message out to the public.

Thank you.

MR. RINGEN: Thank you. As I said earlier, I have no doubt that this is a watershed report that you have prepared that will get a lot of discussion and it raises a lot of, a lot of issues that are very complex, without a doubt, and that certainly the industry will take time to adjust to it.

Bernice, do you want to add anything, or AnaMaria? Served on this? You'all have done an outstanding job.

MS. JENKINS: Well, that's what I was going to say. I think the paper is put together very well with the limited information that was available.

And are you making a motion for the Committee to accept the document?

MS. SUGAMAN: Yes, I am.

MS. JENKINS: If that's the motion, then I would second that motion.

MR. RINGEN: Any comments about that? We have a motion here that we accept this report and discussion of it.

(No response.)

MR. RINGEN: I have one issue that I want to raise that -- that's going to be contentious and it's complicated. In public health we can define any issue in -- that is of any human action issue as a public health issue. And typically the field of public health has expanded and expanded in response to that, so that to some extent you could say it's professional empire-building to try to define everything.

There is no doubt in my mind that racism is a very serious problem that produces safety and health -- adverse safety and health results in the workplace. There's no doubt in my mind that sexism is a very serious problem in our industry and that results in sexual harassment in general and results in adverse safety and health programs. There's no doubt in my mind that there's a lot of violence on our workplaces that results in injuries to people. But to my mind, none of these three things, and I know I'm in a minority on this generation, none of these three things are safety and health issues. They're cultural issues or they're criminal issues in one form or another. And I think there are limits to how much responsibility you can expect a program in safety and health to take on. And I think that one issue is one that deserves discussion here.

Apart from that, obviously issues like fit-testing of personal protective equipment, without a doubt that's a proper safety and health issue. Sanitary facilities, without a doubt it's a proper safety and health issue. Training, inspections, and so on -- they're all proper safety and health activities when -- depending on how you define the issue. But I would be reticent to say that we should expect OSHA, for instance, and I'm just speaking as an individual here and would like to have a discussion, that OSHA should try to draft a standard -- a safety and health standard that would deal with sexual harassment. And we should have a discussion of this, because I think it's a legitimate concern about what the boundaries of our field and of our responsibilities are.

MS. SUGAMAN: Well, let me just clarify that we are not proposing that OSHA draft a new regulation that deals specifically with sexual harassment. We think there is an agency within the Department of Labor that is already mandated to address that issue. We do think that OSHA can play a role in -- when they identify those issues to collaborate with that agency, as they do with many other agencies in terms of developing a Memorandum of Understanding. So we're not specifically asking for any new regulation on that, on that area, but just that it be an issue that OSHA inspectors are aware of and OSHA inspectors have knowledge about the impact it does have on safety and health.

MR. RINGEN: I don't disagree with that at all. AnaMaria?

MS. OSORIA: I just want to address your earlier point about the separation and about racism and violence and sexual inequality of treatment. And I think there is precedent, because at least we get a lot of grants from NIOSH -- I'm talking as a state health department -- and we have a lot of -- not a lot -- significant amount of money to look at violence in the workplace. And we don't pretend to -- and in our little mini subanalysis on workers' comp claims that are coming in in California, especially in L.A. County, which represents eight-and-a-half million people, we're finding a lot of sexual, both verbal but also physical, attacks, but also violence kinds of episodes, and homicide being the number-one killer of women in the workplace in California. So, we're not going to solve handgun control and all these other things, but at least our part of the whole picture can try to do something and look at trends on what could be done in a workplace situation. So, I think the reality is, at least taking violence as an example, is that you can't tackle the whole problem, but you need to form partnerships with the people who have that primary mandate and try to be in league or be in coordination with the goals of that lead agency. So, I don't think you can say, "well, it's their problem" and you don't do anything, but I think you can work together to try to make it better for the whole situation.

In terms of sexual harassment, I don't think OSHA should be the lead agency. But again, if there's some things they can do in their procedures, and I think what Lauren did, and really everybody in the group really worked very hard and Lauren was a very good leader, what was tried to -- what was -- the attempt was to list very specific kind of doable things that wouldn't break the bank necessarily but help in the overall correction of this problem, not that they're going to, you know, do everything to correct it. So, I just don't buy the theory of -- well, since we're not the lead agency -- I'm talking if I were an OSHA person, which I'm not -- then I don't have to do anything. I don't think -- I think it's a multidisciplinary multiagency approach that is needed, at least that's my opinion.

MS. SUGAMAN: I also want to point out, Knut, that it's -- reaching underrepresented populations is part of the mandate of both OSHA, NIOSH, and the National Occupation Research agenda, and they've all identified doing specific activities to address the problems of underrepresented groups, and I think they're speaking specifically of groups that have been excluded from workplaces, like the construction industry, as women have, as people of color have. And so I don't think we're at all outside of the guidelines and framework that's being established throughout the Department of Labor and in the CDC to begin to incorporate the needs that have been previously gone unaddressed.

MS. JENKINS: I could -- I just would like to say one thing. Being a first is always uncomfortable for a lot of people, but I think the intent of the document was to create an awareness, and I think that that could be done very easily.

MR. RINGEN: Oh, absolutely.

MS. JENKINS: I am very sure or -- you know, just disseminating the document itself through various agencies.

MR. OWEN SMITH: Is this, is this just for an awareness or is it for action?

MS. SUGAMAN: Well, I think we have both intentions, and we have through the document the idea that we can educate people about this issue, create awareness and raise consciousness about the problems that do exist because of gender. Through the recommendations we have some very specific actions that we hope OSHA can take to address these issues.

MR. OWEN SMITH: Well, let me ask you, with respect to this section "reproductive hazards," how would an employer know?

MS. SUGAMAN: How would they know if someone --

MR. OWEN SMITH: Yeah.

MS. SUGAMAN: -- is pregnant or --

MR. OWEN SMITH: Yeah.

MS. SUGAMAN: Well, I think the OACM standards really address the issue of anybody within childbearing age, so that it doesn't just look at a worker once they're pregnant. It also looks at all of the factors that can contribute to problems in reproductive health.

MR. OWEN SMITH: Don't you think that would be a hindrance to hiring a woman on the job if the employer thinks he's got some additional, maybe not expense, but exposure because he hires a woman, she might be pregnant?

MR. RINGEN: Stew?

MR. BURKHAMMER: Speaking strictly for myself, not my fellow employers who sit around me here, when we chartered this workgroup we knew that this was a tough issue and that they had a very, very difficult job of, one, even finding any data, because there's not a lot of studies done on women in anything, let alone construction. And I hear from my wife and my daughter about every evening or every other evening issues about women's health and the lack of data and the lack of studies and the lack of everything, because they're -- they do a lot of studying on this issue. So, I commend Lauren and the team for what they've done here. I think they took a very difficult issue and came out with a very good report based on the data that was available.

Knut, your issue on violence in the workplace, I think I take exception with a little bit of what you said. There is violence in the workplace and it's not just convenience store people are getting shot. It's not just guys in delivery trucks that are getting mugged and beat up and robbed. But on job sites we have issues of water -- you know, water cans being dumped on people down below, paint being dumped on them while they're eating their lunch, sandwiches being painted and wrapped back up and then the person eats their sandwich full of paint at lunch, people getting smacked up along the side of the head with a spud wrench and going around the corner and nobody knows what happened to them, lines being drawn taut and people tripping and falling on their face on concrete floors and nobody ever knows who did it.

So there are -- I think there's a lot of issues of violence in the workplace that maybe a lot of people don't fully understand are actual violence issues; but when you look at them and you study them, they really are. So, I think OSHA does have a role in violence in the workplace and coming up with some kind of study or even eventually a standard that does address that issue, because I think it is causing a lot of injuries, a lot of falls on same level. Yeah, they tripped over a lot of debris and stuff laying the workplace, but how many of them could be actually somebody trying to trip someone? Or a lot of falls -- you know, people getting struck on the head. How many of them are actually accidents or bolts being kicked off on purpose or things like that? There's a lot of issues in violence that I think need looked at.

So, I think what Lauren's asking -- or the workgroup's asking in their sheet of paper here isn't out of line from what we've asked them to do in their report, and I would second the motion that we, that we do pass this on to OSHA.

MR. RINGEN: I don't disagree with that at all. I've -- but I think it's worth -- actually, I do disagree with some of what you say. Not that I disagree with the fact that you have probably a lot of violence in construction at jobsites or some violence --

(Asides.)

MR. RINGEN: You know, we have a lot of violence in my neighborhood, but that doesn't make it a public works issue necessarily. It still makes it a police issue.

(Pause.)

(Off the record.)

(On the record.)

MR. RINGEN: First of all, I'm generally in the minority on this, on this issue within the occupational health community. Obviously NIOSH and OSHA and everybody else has adopted violence as a big thing that they should be dealing with. I think it should be more the Justice Department. But having said all of those things, that doesn't detract from the importance of this report or the work that has been done or that the report should go forward. I think, however, in terms of our Committee's considerations, we should at least have a discussion about this delineation of responsibility when we think in the future about what kind of implications this report and other activities are going to have for the definition of safety and health responsibilities, which are bound to arise and should arise out of this in the future. That's, that's the only thing that I'm trying to raise.

Any other comments? Mr. Cooper?

MR. COOPER: Thank you for the report. I got it early for a change. It's very unusual to get a report until afterwards. I read this last week and found it very interesting. They did a lot of work on it.

One thing in particular, and I don't have the page in front of me, on the restroom facilities, which is very adequately and properly genuinely stated, because that's the way they are. And in addition to that, I think you could have added a little bit more on washing facilities. I see one sentence down there that talks of washing facilities. Normally on a construction site -- there are none -- for men and for women. And so it's a pet peeve of mine and it's something the IH's in this country left out when they first started some years ago. To me that is the big issue. I don't think we have a lot of people dying from hepatitis that we know about on the jobsite, but this -- our job sites are like third world countries, many of them are -- and Bechtel is not one of them. Bechtel has a very good jobsite.

(Laughter.)

MR. COOPER: But many of our jobsites are terrible. Two feet of mud, no restroom facilities, maybe a sanilet (Phonetic), no washing facilities. They're terrible. So we -- this particular part of your report that relates to restrooms and washing facilities is a, and always has been, a very large concern of mine. We're not a -- the United States is not a third world country, but our jobsites appear to be that way many times. And I reported earlier about the farm workers have in the OSHA standard, with over 20 farm workers, have washing facilities, and in addition those washing facilities are very necessary to wash off lead and toxins and other things other than hygiene. But I'll get off that case.

Anyhow, a very nice report. Thank you.

MR. RINGEN: So there's general agreement that 1926.51 is woefully inadequate, whether it's inadequate in itself or certainly inadequate in the way that it's being enforced or followed in the fields.

Any other discussion of this?

MS. PORTER: Just one comment on issues related to reproductive health. Mr. Smith's question wasn't answered. I think you have to look carefully that there are a number of issues related to reproductive health. One is prior to pregnancy and one is after pregnancy. So, one's the health of the fetus and the other one is the reproductive capacity, not only the woman but also the men too. So, you have them being exposed, both men and women, being exposed to reproductive toxins. So, therefore, it -- I think it's a bigger issue than just women, but it hasn't brought -- been brought up or raised very often in the construction industry. So, you might want to bone up the report just a little bit on that section.

MS. SUGAMAN: We do address the fact that there's actually more known hazards to sperm development than there are to female reproductive systems, and I -- but if we can clarify that in the report, we'd be happy to.

But I think some of the comments that I've heard here really reflect how the issues we're raising here are specifically designed to improve conditions for working women. We'll also have a great impact on the workplace as a whole in making improvements. And if we can bring hand washing facilities to jobsites because women complain about unsanitary toilet facilities, I think we're making an advance for the whole industry. If we can improve reproductive protection for women on a worksite and in doing that improve it for male reproductive systems at the same time, you know, we're making significant strides for all workers. And we all have a responsibility for families, whether we're the ones that carry children or just contribute to their conception.

So, I think this report really reflects an opportunity for ACCSH and for OSHA to sort of take the lead in how to address this stated -- part of the mission of representing or addressing the needs of underrepresented groups, and I think it's a real opportunity to move forward on this. We, I just want to mention, presented this report to the conference hosted by Chicagoland Construction Industry Safety Council last month and had a wonderful reception at that conference. We were invited from that conference to present at the National Safety Council. I think there is a lot of interest in this area. And that if ACCSH can be seen as a leader in this, and hence OSHA, that this is a wonderful new initiative to be able to spearhead.

MR. RINGEN: AnaMaria?

MS. OSORIA: I just, I just also want to apologize to Owen. I was going to answer part of his question too. And I just actually finished two chapters in an occupational environmental medicine book which goes over all the known and suspect, both female and developmental as well as male reproductive toxicants, and they also go over different strategies and stuff like that and how to approach it. I'd be happy to share that with you in terms of -- and we also have also taught seminars on how to do an adequate reproductive monitoring program in the workplace and give materials on that too. And I'm not the only one that knows this stuff. People who are in the field can -- you know, I just happen to know the stuff I do, but there's other people too. So, I'd be happy to share that with you.

I think the trick is that it's easier when you have a fixed site and you have X number of compounds or physical hazards you work with. It's more a steady-state situation. When it becomes a moving target that you're moving from place to place, then you have to think: what are the common kinds of tasks that are going to be out there and what are some of the compounds and hazards that will be seen throughout, you know, the different sites and all that.

So, it's not an easy task. And, I guess, if I were going to answer your question in more generic sense, it's that I think some -- maybe NIOSH focus on what do you do in work places that are more mobile and stuff when you -- it's a little harder to assess what's going on. But I don't think the whole answer is there, but I think there are some guides out there for you.

And the other question -- the other point I just want to make is that although the focus of this work was females in the construction industry, which is very near and dear to my heart, but I think some of these principles don't just apply to females. You can take that and look at certain kinds of ethnic groups that tend to be smaller than the average man out there. There's also, I think, cultural things that would be applicable to different ethnic and cultural groups out there. So, I don't think these problems are unique to women. This -- the intent of this report was to point out how it applies to one small but growing segment of the construction industry, but I think a lot of these things would be applicable to other subgroups and not looked at traditionally in the past kind of groups that are in the construction industry.

So, I think you kind of raise the level of awareness across a lot of different groups, not just females, by looking at this.

MR. OWEN SMITH: Well, I was just wondering. There is -- I think there's some technical questions here. For instance, I believe that -- I'm not a prime contractor, but on the larger projects I don't believe there's a problem. You know, you figure you're going to have so many people there and you're going to put so many toilets out there. You could probably designate some of them for women. For the question of having locks on them, I think they have locks on them now, at least the ones that I see.

But on the smaller projects when you make that calculation, you know, you've got a lot of these -- and I believe there are a lot more smaller projects than there are larger ones, and you probably have a lot more people working on the smaller ones scattered over everywhere. So, a guy builds one house or two houses and he says -- puts one toilet out there, so now you've got to -- he's going to have to put two, because OSHA's going to have to go back and do a new calculation, because that other one's not going to work anymore, I don't believe, if you have to have gender-specific toilets. And I believe that's an issue.

MR. RINGEN: Steve?

MR. COOPER: So why shouldn't they, Owen?

MR. OWEN SMITH: I don't have a problem with it. You know, I don't put them out there. But I just said it's an issue. Some -- they'll -- then these guys will have to go back and do the calculation again and rewrite it so that now rather than one toilet there will have to be two. You will have to have one specific for women. I'm not saying --

MR. COOPER: Even on the small jobs they have 10 people on the job, I would say if you had a woman employed that an employer would provide both, naturally sanilized (Phonetic) is what they are, but provide two facilities. I mean, at the minimum. You can rent oxygen acetylene. You can rent a crane. You can buy lumber. But you can't rent a toilet? That --

MR. OWEN SMITH: Well, I'm just telling you what I see.

MS. SUGAMAN: One thing that is -- if it is standardized, then it's built into the cost for all contractors, and so it's not just a cost that one contractor has to assume because they want to do the right thing, and then they have to debate whether doing the right thing, you know, makes it impossible for them to come in as the low bid. We have a standard that mandates it across the board and everybody has the same criteria.

MR. RINGEN: And I think the intent of 1926.51 is actually to provide this, but it's not well-written.

MR. WILLIAM SMITH: The other thing I'd like to say is I commend you guys for the work you did, because, like Stew said, it's not much there to start with and the women in the construction field are a smaller percentage, very small, so it's not as much information.

The only thing I'd like to comment for the record, though, is that a lot of these comments that you received from the women in the trades are not gender-discriminatory, because the comments they give you are just discriminatory comments in general for construction. When they say things like, you know, "I used to watch them guys and they had a lot of little tricks and made the job easier and no one showed you that trick," that's comment. When they -- you know, when they'd say, "I'm not going to show her how to do it so she can take my job tomorrow," that's all comment. So, just for the record, it's not a picking on any one gender; it's just the construction industry. That's the way it is with the old-timers. That's the way it is out there. And it's both sides. We have that problem with apprentices now where guys do not want to train the younger guys how to do their job because they're afraid they're going to lose their job, and that's across the board with everything in construction. So, it's just a commonplace and common practice.

MR. RINGEN: Bob?

MR. MASTERSON: Yeah. I just wanted to comment on something that Owen said. And for the most part, for, you know, for myself and my company's operations, providing two toilets is not an issue, it's not a problem. In fact, in most, in most cases, in the vast majority of the cases, we already do. As far as a washing facility, we require that on all of our jobs now.

The issue I think that will surface is when you have that real small contractor that builds one house at a time where there is no job site that has multiple employers working at one time, you're talking a site that has a plumber out one day, the electrician out the next couple of days, and he may build four houses over 90 square miles. That's where I think you would run into an issue of something like that. And if OSHA is going to address this, I think they need to look at that. And maybe in a case where they have a small employer like that, maybe one facility, as long as it's kept sanitary, you know, there might be some way of distinguishing that. And I don't know what that would be. But I know if you start talking about the small employer all of a sudden having to double the number of sanitary facilities that he has to put out there every year, that's a big cost disadvantage to that individual versus somebody like myself. I've got 30, 40, 50 units in one community going on. So, you know, I think it needs to be looked at -- the number of people that will be there and the probability that there will be women and men as well as -- I don't care whether you're a man or a woman, you need a sanitary facility period.

MS. SUGAMAN: Perhaps that could be addressed as we address the homebuilding -- I mean, aren't we doing a residential construction --

MR. RINGEN: I think so.

MS. SUGAMAN: -- issue?

MR. RINGEN: The -- but it's not just in residential construction. I -- without belaboring the issue here, it's -- you know, there's sort of a trend toward more -- less gender-separated toilet facilities in general, including healthcare facilities. Airplanes have survived with them forever. And at least in northern Europe where I come from, it's rare now to find gender-separated -- or segregated toilet facilities. The important thing, as you say, Bob, is that they're maintained properly, and that's the big problem that we have on construction sites, that you have a totally inadequate sanitary facilities in terms of the way that -- both in terms of what's there and especially the way that it's maintained when it is there.

Having said all of that, we have a motion. Any more discussion of it? Steve?

MR. COOPER: It is a motion to adopt. What does "adopt" mean? Meaning the Committee agrees with everything in the study? Is that what you mean?

MS. SUGAMAN: It means you accept the report as we prepared it.

MR. COOPER: That we accept the report? Is that the motion?

MS. SUGAMAN: Yes.

MR. COOPER: Because, you know --

MS. SUGAMAN: You don't have to agree with it.

(Pause.)

MR. COOPER: Mr. Chairman, on those racial issues in here, which are true and there are on jobsites, I don't know what OSHA's going to do about that. And the sexual harassment is true and it is on our jobsites. I don't know what OSHA's going to be able to do with that other than maybe push for training. But I just wanted to know to adopt or accept the report what is the motion to accept?

MR. RINGEN: It is -- the motion is to adopt the report.

MR. COOPER: And what does "adopt the report" mean, Mr. Chairman?

MR. RINGEN: I think to accept it, by and large. And to pass it on. Essentially what it says is that we accept the report and that it be published and the other things that are here in the brief summary that's in front of you.

UNIDENTIFIED SPEAKER: Call for the question.

MR. RINGEN: Yes. The -- well, with the understanding that there might be some minor things that so many of us disagree with, overall intent behind the report is what we really are interested in, what we're voting for. So, all in favor of the motion, say aye?

ALL MEMBERS PRESENT: Aye (by all).

MR. RINGEN: All opposed?

(No response.)

MR. RINGEN: Okay. Thank you. Now, what do you propose to do further with the working group?

MS. SUGAMAN: Well, we'd like to help work on the publication of the awareness brochure. We'd also like to think about what the publication format should be. We'd like to work with OSHA on that and with NIOSH. And we'd like to continue to present this at conferences. We will be meeting again to address other next steps that we want to take, but we have not had more discussion than that at this point.

MR. RINGEN: On the issue of both minorities and women in construction, there has been a huge change in the sort of attitude and awareness in recent years. Since -- actually, since this whole project was started, there's been a tremendous change both within the building trades and in the construction industry. I've noticed that. Remarkable.

So. At least I think you've done a heroic job and we appreciate it very much.

MS. SUGAMAN: Thank you.

MS. JENKINS: I just would like to ask one thing. After everybody really has a chance to take that and digest it, if they have any comments or further recommendations, to give them to Lauren.

MR. RINGEN: And that -- with the understanding that those modifications can be made here or --

MS. SUGAMAN: Right. If any fine-tuning needs to be made in specific recommendations, we're happy to do that.

MS. OSORIA: If I can just add one more thing? And not just about the report itself, but I think also in terms of dissemination or a forum where some of these issues could at least be brought up, because I think at the bare minimum what Bernice said was we just want people to kind of, you know, get the idea this is something that needs to be looked at. And we're not saying there should be a standard at this point or anything like that, just people becoming aware of some of these issues and doing the best they can within the resources they have to address them.

MR. RINGEN: Okay. Thank you.

MS. SUGAMAN: So I understand that you've accepted the --

MR. RINGEN: Yeah.

MS. SUGAMAN: -- plan to publish and --

MR. RINGEN: Right.

MS. SUGAMAN: -- disseminate? Great. Thank you. I want to just publicly thank all my workgroup members, who devoted a lot of time to this. Linda, Kitty, Amanda, Joyce Simonowitz and Jane Walstedt, AnaMaria and Bernice. Thank you all.

MR. RINGEN: Fabulous job. The next issue. Let me see. Is there anything on Butadiene?

MR. GORDON: I've got my presentation here on Butadiene.

MR. RINGEN: We will have a presentation on -- let me make the suggestion that we take the break before that, and then we do Butadiene and the Weill Study immediately afterwards. So, about a ten-minute break. Be back here at -- what is it? -- 3:05.

(Whereupon, a short break ensued.)

MR. RINGEN: Thank you very much. The next issue is Butadiene.

MR. GORDON: Thank you very much, Mr. Chairman. I'm Chuck Gordon from the Solicitor's Office, and this is Carol Jones from Health Standards, and we just have about a five-minute presentation.

MR. RINGEN: I appreciate it.

MR. GORDON: Carol?

MS. CAROL JONES: I just wanted to present briefly one of the most recent health standards that was promulgated. It was promulgated in November of 1996. It's the occupational exposure to 1-3-Butadiene. 1-3-Butadiene is a gas and it's four carbons long. It looks, it looks to me like two-thirds of benzene. It's double bond -- coordinated (Phonetic) double-bonds.

And only about 5,000 workers are potentially exposed to this, to this gas, and they are exposed in production of the gas and in use of the gas as a latimer (Phonetic) for synthetic -- in the synthetic rubber industry. So, there are relatively few places where this, where this material is potentially of hazard to workers. But the hazard is great. It causes leukemia, lymphopoietic cancers, and so we were very concerned about that.

And it has been -- the TLV in 1970 -- adopted in 1971 for this gas was 1,000 parts per million. The new PEL is 1 part per million. It was based on irritation. And then in the '80s it was found to be a carcinogen, and now we regulate it with 26(G) (Phonetic) rule down to 1 part per million.

As I said, the rule was promulgated in November of 1996. And I wanted Chuck to talk a little bit about its potential impact in construction and what we didn't consider it -- that.

MR. GORDON: Thank you, Carol. First, we followed the example of the construction industry. When the full hazards were known, industry and the unions involved CMA, rubber workers, chemical workers, and the Institute of Synthetic Rubber Producers got together and in the end agreed to a very, very tough standard, tougher than the one we proposed. And as a little show-and-tell, we had a signing ceremony in Local 2 of the URW in Akron, Ohio, with the industry and union representatives present.

Now, we're not aware of any impact whatsoever in the construction industry, but we made it applicable to the construction industry, and it's -- although apparently it's unclear to some people, to us it's very clear. We say so in the preamble on page 56798. And in a cryptic provision which most people don't understand on 56831, where we say -- in -- which is Section 1910.19, and that section actually says as applicable to the construction industry.

Why did we make it applicable even though there -- we're not aware of any impact on construction? We had a bad experience in the coke oven standard, which was not made applicable to construction, and there the companies call in outside contractors to do a lot of routine maintenance work, apparently, and they said they weren't covered by the coke oven standard, even though they were exposed to just as many hazards, because the coke ovens weren't shut down while they were doing this work and they said these were construction workers and not covered.

So, now we -- even when we don't think there's an impact on construction, we don't publish the whole standard for the construction industry, but we make it applicable just so there is no loophole and that no one would be tempted to argue that these particular workers are not protected by the standard. So, that is the reason, as we said in the preamble, why we are making it applicable, even though we absolutely believe there are no impacts.

Now, for example, methylene chloride, which we just issued, has a very big impact on the construction industry. We have special provisions for the construction industry. We went to the Construction Advisory Committee. We didn't do that in methylene chloride -- I mean, in Butadiene simply because we don't think there is a single construction worker who is exposed to it, to our knowledge.

Anyhow, that's our presentation, and we're available for any questions.

MR. RINGEN: So Butadiene exposure may be possible when they're repairing, maintenance, construction in facilities that produce Butadiene or in the rubber -- in the facilities that use it?

MR. GORDON: Right. And we're afraid that they will then -- if we didn't cover construction, they would call all the workers who did that maintenance "construction workers" and not covered by the standard.

MR. RINGEN: But wouldn't that probably be covered under the Process Safety Management Standard, that situation?

MR. GORDON: The explosive hazards, but perhaps not the health hazards.

MS. CAROL JONES: It's a health hazard as much --

MR. RINGEN: Okay. Any questions? Stew?

MR. BURKHAMMER: I guess I've been too nice today and it's late. It's time for me to start.

MR. RINGEN: No.

MR. BURKHAMMER: No, I can't? Is that what you're telling me? I've got to be nice the rest of the day?

MR. RINGEN: That would be nice. Yeah, but he told you.

MR. BURKHAMMER: I guess this, you know, goes back to an age-old issue in ACCSH, and before my time, Steve's time, of standards being forced down, promulgated on construction without the Advisory Committee's review. Here we have another one. You said yourself no knowledge of or no instances of it affecting construction, but let's tack them on anyway. And that's the attitude that this Agency has had regarding construction standards for a long time. And we thought we had changed it. We thought we had got through to you people to understand if you're going to force something down on the construction industry, if you'll let us at least have the courtesy to look at it on this Committee. And you didn't do it.

MR. GORDON: Well, the Agency is --

MR. BURKHAMMER: I'm not --

MR. GORDON: I'm sorry.

MR. BURKHAMMER: I'm not -- there's no excuse for that. None. And if you're going to continue to do that kind of stuff, why have a committee in the first place?

MR. GORDON: We've certainly become much better than we have in taking all these health standards to the Construction Advisory Committee. And if we think there's any conceivable impact. The decision not to take it was made back in 1990, and I don't know what the particular basis was at that time. But we certainly, in the Health Standards area now where this probably comes up, I certainly believe in the benefits of taking anything to the -- that is relevant to the Construction Advisory Committee, and I think by and large the Agency is doing a pretty good job now.

MR. RINGEN: So, if this happens again you'll get really mad, right?

(Laughter.)

MR. RINGEN: Just a warning.

MR. OWEN SMITH: Can I ask a question? Would it, would it have had the same effect if you had just added something more just to make it clear that it would only be applicable when you were working in it -- when there was construction in those facilities, rather than just broad, across the industry?

MR. GORDON: Well, that's a good suggestion and perhaps that would have been a better way to state it. That's the only place that it would appear, when they're maintenance or work in those particular facilities.

MR. OWEN SMITH: That would have helped us and that would also meet your needs.

MR. GORDON: That's a very good suggestion.

MR. RINGEN: Yeah?

MR. CLOUTIER: Mr. Chairman, there's the perfect opportunity to get your 40 percent reduction in --

(Laughter.)

MR. CLOUTIER: It has absolutely nothing to do with construction, but we thought that just in case it did --

MR. RINGEN: We'll remember that when she comes back.

MR. GORDON: Thank you.

MR. RINGEN: Thank you. Last today, but not least, we have Professor David Weill from Boston University. He has been working for the last -- yes? AnaMaria?

MS. OSORIA: I was just wondering, as a suggestion and recommendation from the Committee, should Stew's comment be reiterated to the Agency?

MR. RINGEN: Yes.

MS. OSORIA: Just so it doesn't get lost in --

MR. RINGEN: It'll be --

MS. OSORIA: -- the shuffle?

MR. RINGEN: -- reiterated, I'm sure. That was a good point. Appreciate it.

David, we've got to get out this overhead projector here.

(Pause.)

MR. SWANSON: It's -- I'm reminded that, I'm reminded that the Directorate of Construction is in fact at least working on developing a protocol with the Health Standards Group. As you know, they are not part of the DOC right now, and we are working on a protocol to address that type of situation.

(Pause.)

MR. RINGEN: David Weill has been working on a study of how OSHA enforcement patterns distribute across the industry to some extent, and he's going to talk about what I think is probably the first of what one might call a covert study of enforcement, and appreciate you taking the time to come. We have to leave in 45 minutes, so if you take maybe about half an hour or so, less than that, in your presentation so we have time for some questions?

DR. WEILL: Okay.

MR. RINGEN: Thank you.

DR. WEILL: Thank you. And thank you for having me here. I think I'm going to rely on my overhead slides.

(Pause.)

DR. WEILL: Good afternoon. As the Chairman indicated, this afternoon I want to present to you really what are some preliminary findings from a more major study we're doing at Boston University looking at patterns of OSHA enforcement and compliance, particularly in the construction industry. So, I will start my talk to you with the reminder that this is very much a work in progress. Hopefully, that some of the findings to date will spur some questions and ideas, but certainly my intention is to be able to come back to you at some future date with work which I will suggest that we're going to provide further information on trends in OSHA enforcement and compliance, specifically in construction.

Also, I will do my best to limit my remarks to about a half-hour, but I also would encourage anyone to interrupt me at any point.

Let me say a few words about the objective of the larger study before I give you a report on some of the most immediate results. The idea of this study really came out of the difficulties I've experienced and that other researchers have experienced, naturally, looking at the impacts of OSHA enforcement on things like injury and illness outcomes. The intent of this study is to dig more deeply into patterns of enforcement of OSHA within construction, first of all, to get a better sense of who would be inspected and under what circumstances. Secondly, to get a better understanding of how firms in the construction industry actually are responding to OSHA enforcement pressure. We had a lot of theories about how that should work, but there were a few stories that -- or a few analyses that give us a deeper sense of how systematically firms are responding to OSHA enforcement. And then, finally, to look at comparative levels of enforcement and compliance across different types of firms, firms of different sizes and firms of different union status, in particular, but more generally, again, to get a richer sense of how firms both are being put under OSHA enforcement regulation and, secondly, how they're responding to that.

In order to do that with -- the intention has been to create a very different type of data set to look at OSHA. OSHA, as I'm sure members of the Committee are aware, maintains a comprehensive information system documenting each and every inspection conducted, with also information about firm characteristics and what was actually found in the process of those inspections. What OSHA database does not provide is an ability to track a given firm over time, or even in cross-section. While there's information on specific firms by name, because of limitations in the data sets to date it's very difficult to look at a single firm across inspection activity over time.

So, the chief data objective of the study, which I'll present results on, is to create a comprehensive sample, in this case of major national and also regional contractors in the U.S. construction industry that are covered by OSHA and to create a panel of data so we can look at the specifics of contractors over time.

Based on that there are two objectives. One is to assess the patterns of regulatory enforcement among the set of contractors of a particular period of 1987 to '93. Those are the results I'll talk mostly about today. And then in the longer term to then assess the impact of OSHA enforcement and other characteristics of employers on actual compliance with specific health and safety standards, and in that way ultimately build a link between what's happening on the regulatory front and what's actually ultimately happening in compliance and in bringing us outcomes and performance.

Well, the sort of typical analysis that this data set allows us to do, this is just using the OSHA Management Information System data in its present form before we created this cohort sample, is you can look at things like the annual number of inspections conducted by OSHA. You can check that against the number of establishments, at least in theory, that we know are out there in the construction industry based on your census of construction, and from that try to construct some sense of what's OSHA's presence in actuality in terms of the average construction site.

And what I've done here is just sort of construct that type of analysis, where in this column I've just calculated the total number of construction industry inspections conducted by OSHA in 1993 for the three two-digit construction SIC groups. Secondly, compared that against the number of establishments reported in the census of construction. And from that, calculated a very crude inspection probability. So, if you take sort of that simple cut of what we know about the number of inspections OSHA conducts and the number of establishment worksites we have in a given year, you get numbers which are sort of the familiar very low probabilities of OSHA inspections, which range from somewhere around 2 percent for very small but very typical type of establishment of one to nine employees up to at most about 12 percent for the very uncommon set of construction work sites with 100 or more employees. And from that we sort of recreate the usual story that OSHA's regulatory presence, particularly because of resource constraints, is a very small one.

Well, there's a different way to go about thinking about the problem, first of all figuring out where OSHA is and who's being inspected, and that's to try to use this database to construct a panel of data about tracking construction companies over time. And what I will, without going into painful detail, just briefly outline to you the process we have undertaken to create such a sample.

Rather than beginning with the OSHA data itself, which is only the universe of construction sites that have actually been inspected, we began with the construction industry. And we created, based on ENR's annual report of major national contractors, a list of 2,060 major contractors in the construction industry. We took that as our universe. From that, we then searched in a systematic way the OSHA database for the period of time under study to see how many times each of those 2,060 contractors were actually inspected. So, what we constructed is, if you will, the universe of at least major contractors, according to the ENR, and based on a very long and arduous process of multiple searches and trying to figure out every different name any given one of those contractors would go by, we created longitudinal histories on all of the firms that were actually -- the contractors that were actually inspected among this group of 2,060. Just jumping to the final point, based on that search system, we ultimately found that there were 1,574 contractors of the 2,060 that were actually inspected by OSHA.

One of the benefits of this sample, one of the benefits, as I'll mention, particularly in terms of coming research, is it gives us insights not only about the people who were inspected but those who were not, which is, which is important information, both for people on OSHA's -- internal to OSHA, but also obviously for contractors, labor unions, and other participants in the industry.

So, what I'm going to be presenting now are results from this national sample of the firms who were actually found in the database relative to this universe of major national contractors. I mean, I would remind you, therefore, because of the way the universe was constructed, these are very large contractors. These are the largest contractors in the United States in a sample ranging from annual sales from somewhere around $1 million a year all the way up to about $13.7 billion. That's what's in this sample.

We look at the overall annual probability of inspection of these major firms. You see the following. Basically from 1987 to 1993, through various OSHA administrations, the probability that one of these major national contractors would receive an inspection in at least one of their sites was around 50 percent. So, the inspection probabilities once you actually constructed this universe and looked for probabilities of actually having an inspection on at least one of your sites obviously looked very different than the more simplistic I laid out first. And as I say, around somewhere in the 50 percent range, pretty consistently throughout the time period studied.

A second way of cutting this data, because the data consists -- or this group of contractors consists of construction employers that themselves have this large range of site revenue characteristics, is we've actually looked at the top 25 percent, 25 percent biggest of this already big group. So if you look at the same inspection probabilities for a group of -- subgroup of contractors from our larger data set who have revenues in excess of 80 million a year, you see the following picture of annual inspection probabilities, where depending on your prior beliefs it may or might not be surprising -- remember, these are now the very, very largest firms in the U.S. construction industry -- have somewhere between a 54 percent in 1987 all the way up to a 63 percent probability of being inspected on any one of their sites. So, certainly again either the story that the contractors at the large end of this industry have no chance of being inspected isn't borne out by this fact. But on the flip side, it's also not true that just because you're an $80 million plus business the probability that OSHA will be in touch with you is also not equal to one at the other end of that extreme.

A second cut of this data, and one of particular interest, I've done ongoing research on differential enforcement of OSHA by union status under the theory that for various reasons, including worker knowledge about rights granted them under OSHA and protections or exercise of those rights, I want to inspect differential levels of inspection activity in union versus nonunion sites. And this is now for the overall national sample broken by the union status of the contractor. Where again we see the overall probability for the entire '87 to '93 period is about 76 percent, so over this seven-year period you have about a 76 percent chance of being inspected at least once. But there is about a 10-point differential between nonunion and unionized construction sites among this large group, where union construction sites have about an 83 percent chance of being inspected over this period of time versus 73 percent for the nonunion sites.

And, again, if we take the cut at the very largest firms, or again, at least, my prior beliefs would have led me to believe that those differentials one would think would diminish some, you continue to see very striking differences in inspection probabilities, 84 percent versus about 75 percent in the time period.

And without going into it in great detail, I'll just flash up -- if we break this by year and just do the union/nonunion comparison, which again there is no OSHA era or Clinton era or Reagan era effect, that these differentials persist for both the overall sample and, as you'll see in the data, and -- for the very large group as well.

The additional question of thinking about inspection probabilities has to do with firm size and how big -- whether groups of different revenue size have something to do with the inspections, as I've shown. Figure 4 presents the probability of inspection in this overall national sample, holding constant different revenue sizes, and again then comparing union and nonunion probabilities.

And I would just point out two sort of facts from this particular analysis. One is that the inspection probabilities for the smallest revenue-sized group all the way up to the biggest revenue-sized group, the definition of those are given here -- smallest being 0 to 15 million, the largest being 80 million plus annual revenues -- are not very different sized groups, at least in looking at the overall annual -- or overall inspection probabilities over the period. And the second thing to see is that even for controlling for size there is a persistence of this union/nonunion differential in enforcement. Again, I won't go through the additional figure, but if you look at the -- in your own packet I've handed out -- at the top 25 percent contractors, the very largest, you'll see basically just it's evident with that.

Well, the second set of questions that arise in this data and that we can look at in this data is what makes -- or what differs between a group of contractors among the ENR 2,060 that were inspected from those that were not? In the next few slides let me just present a couple of comparisons between the entire group of inspected firms and the ones -- I mean, the entire firms in the universe and those that were actually inspected, make some comparisons.

The first figure gives you a sense of breakdown by SIC group. So, this is -- that has 15 building construction general contractors, 16 heavy and highway group, and then finally 17 specialty trades. And what you see here, I think, most strikingly is overall there seems to be some difference between the entire group of companies that are out there in this ENR universe and the ones that were actually inspected over this period of time, but not huge differences. That the percentage of firms who were inspected by SIC groups looks reasonably like the overall industry competition in the larger industry group. So, at least if it's very aggregated, two-digit SIC code for construction industry, at least at this level of analysis it doesn't look like there's a dominance skewed toward a certain sector different from what you'd expect given the population of construction trades.

If you take a bit of a more detailed cut, this looks just -- SIC groups 15 and 16 gives you, again, a breakdown of those represented in the entire universe of contractors and those that were actually inspected. And, again, with some variation, basically the two look very similar, that what OSHA actually goes out and inspects seems to look reasonably like the universe of the different trades -- the different four-digit SIC groups in 15 and 16.

Within the specialty trade groups, you basically see a very similar story again, where OSHA's patterns of inspection as exhibited by this pie look a lot like the underlying composition.

The differences arise more strikingly when we begin to compare union status of the national sample of inspected and non inspected groups. Whereas 50 percent of the entire population are identified as nonunion contractors and while 48 percent of the inspected companies were not -- were nonunion, 58 percent of the companies that were not inspected not union. So, consistent with the results I've already shown, your probability of not being inspected are higher if you are not a union operation than if you are a union operation, for various reasons we can discuss. But that skew shows up again in the not inspected versus inspected category.

A second kind of comparison comes out if we actually looks at the size of the companies who are included in the sample versus those who were excluded from the sample. This figure I've shown you here, the total population, all the companies broken by overall -- the overall group where the average size is about 130 million in the sample as a whole. Mixed group is a small number of contractors that actually have mixed union/nonunion status that I've not shown you most -- it's a very small group of about 25 contractors. But then nonunion groups, 100 million is the average revenues for that group, versus about 155 million for the union group, and if you compare again the inspected versus the non inspected against the universe of companies in this, in this construction database, you see pretty much of maybe a slight skew towards larger firms being inspected versus not inspected, but it looks like a fairly close match, at least in what's represented by the population.

Now, up to now what I've been speaking about is the probability of receiving at least one inspection. What I haven't addressed yet is there are obviously contractors that are getting more than one inspection in this population. So, in the next slide I'll present some results dealing with the mean and median number of inspections received by contractors in this group.

So, the one fact to remember is that somewhere in the 40 to 50 percent range of the overall sample in any given year or in the 25 percent range for the entire seven-year period, about 25 percent of the firms are never inspected. Those that are, however, have a very different story. Those that are inspected in the overall group receive on average 19 inspections in the period under study. The median is about 11 inspections over the period under study. The reason the gap is so big is we do have some firms, very large firms, who are receiving over 100 inspections over the seven-year period of time, so there are certainly cases of very striking differences in repeat inspection activity.

If we look at repeat inspections in terms of union status, we again see not as striking a gap between union and nonunion contractors in terms of the mean and median number of inspections they receive over the time period on the study, but still you see a slightly higher level of total inspections over the period of union group versus the nonunion group, and the mixed group is a relatively small sample.

MR. MASTERSON: David, a question.

DR. WEILL: Yeah?

MR. MASTERSON: Was there an analysis done to determine why the inspections were done?

DR. WEILL: There is. One way -- one interpretation of the -- particularly the union effect is that the complaint inspection rate is higher among the unionized group and the non unionized group, and I can show you some results on that. It turns out that does not turn out to be the case in this figure on the right side. This is the frequency of complaint inspection by union status. And these are percentages. About 7 percent of all the inspections on the nonunion side were complaint inspections, and about 8 percent on the union side were complaint inspections. This is, this is very consistent with overall if you look at OSHA construction data general. Complaint inspections are just a very uncommon feature of OSHA enforcement in construction in general. The puzzle is, because -- in other research I've done in other industry raises similar union/nonunion differentials. A lot of it can be explained by differences in complaint inspection. That doesn't seem to be what's driving these differences. The vast majority of inspections conducted by OSHA in the national contractor sample are programmatic inspections, which, at least if you go by the book, should be coming out randomized targeting principles.

MR. MASTERSON: Okay. So, in firms over a certain dollar value?

DR. WEILL: I'm sorry?

MR. MASTERSON: Is that based on firms over a certain dollar value?

DR. WEILL: Yeah. Yeah.

MR. MASTERSON: Is -- is that --

DR. WEILL: This will just give you a sense of the average number of inspections over the time period by size. And while one of the previous slides I presented showed relatively little difference in the probability of receiving any inspection by this sized group, here you do see very striking escalation, maybe not surprising, of the total number of inspections received by these contractors -- major contractors over the seven-year period, with the very large firms receiving on average about 31 inspections. That's on average. I believe the highest number is somewhere in the 250 range, the total number of inspections received over the period, one of the very large firms. Going down to about 13 inspections for the smallest-sized group, indicating some increased probability of more inspection activity as you go up the size --

MS. JENKINS: Do you, do you attribute that to the Dodge reports, the information taken off the Dodge report?

DR. WEILL: It could be. I mean, I think you have to believe there's something in terms of the program inspection routine -- or randomized inspections arising out of that from that universe that explains that.

But it also -- let me go forward, because I think that question does raise a question about what this sample says about how OSHA is using its regulatory -- or spending its regulatory portion of research under this system, whatever the routines are that's driving it.

If we look in -- just as a way to take a point in time, if I take 1993 and I say: well, what does this top -- I'll call it the top 2,000, my universe of major contractors, what does this top 2,000 contractors account for in terms of OSHA inspections, total inspections done, inspection hours done, and penalties assessed? You would see the following thing. Under inspections, this top 2,000 group has about 4,150 inspections -- at about 4,100 inspections undertaken in 1993, which represented about 18 percent of OSHA's total inspections in that -- in the construction industry.

MR. RINGEN: David, those 2,000 contractors amount to roughly less than one quarter of 1 percent of all contractors.

DR. WEILL: Correct. And I'll get to that. That's right. I mean, and that's really one of the puzzles, is whether these numbers are big or small. Because if we look at two other measures, total inspection hours, how many -- if we say well, inspections are really -- inspection resources don't only depend on the other but the hours spent, there were about 127,300-odd hours spent in '93 inspecting the top 2,000, which represented about 25 percent of the total hours OSHA spent on construction sites in general. And the penalties assessed to this group accounted for about 19 percent of the total penalties assessed in '93.

The question is well, what do you base that -- what's the relative universe to base that again? Well, I'm offering you three here. We take the total revenues of this group as they account for the total revenues in construction, and here I've had to use information from the Internal Revenue Service, statistics on income, to construct an estimate of total revenues in construction in '93. From the database -- the national construction database that I've assembled, you get about $184 billion of revenue, which represents about 30 percent of the construction industry in revenue dollars. So, those numbers look relatively parallel or consistent with OSHA resources in terms of revenue size.

As Mr. Ringen's point raises, though, if you look at the establishments represented by this group -- and remember many of these construction inspections were actually conducted on the same sites, so there's actually 2,200 sites represented of this 4,100 total number of inspections -- that constitutes less than half of 1 percent of all establishments out there.

MR. RINGEN: Which year is this?

DR. WEILL: This is '93.

MR. RINGEN: The 4,150 inspections is 17 percent of all OSHA inspections, I think, not just all OSHA constructions.

DR. WEILL: No. That's just, that's just construction industry.

MR. RINGEN: It is just construction?

DR. WEILL: Yeah. Yeah.

MR. BURKHAMMER: Where did you get your 184 billion?

DR. WEILL: 184 billion came from the data in the ENR when we were constructing the original sample. When we selected the contractors we also used what ENR reported as their annual revenues.

MR. BURKHAMMER: You're taking gross revenues --

DR. WEILL: Correct.

MR. BURKHAMMER: You're saying that's 184 billion in 1993?

DR. WEILL: Correct.

MR. BURKHAMMER: Out of an $800 billion --

DR. WEILL: Well, according -- if you use the statistics -- about $650 billion.

But, again, I mean, this particular number, we're mixing apples and oranges in that the way ENR and obviously firms are reporting their revenues is different than the IRS is using as their estimate of these companies. I simply used the IRS numbers for lack of a better overall measure on that. But they -- but the number that this 30 percent comes out of is about a $650 billion estimate of total construction.

MR. BURKHAMMER: This is Federal inspections?

DR. WEILL: This is -- no, this is the universe of Federal and state inspections.

MS. OSORIA: No, but -- excuse me, but I have to differ, because the years that you're covering on IMUS (Phonetic), I know for a fact California was contributing to IMUS data.

DR. WEILL: The beginning of 1987 they're in there.

MS. OSORIA: They're not -- they weren't completed integrated yet. I think part of your time period doesn't cover all the things that came out of California. I was just tossing that out as you may not have in the early years complete coverage for California.

DR. WEILL: In --

MS. OSORIA: I'll check that out.

DR. WEILL: Yeah. Check it --

MS. OSORIA: Since I'm from California and I know that --

DR. WEILL: Right.

MS. OSORIA: -- they took awhile getting on-board.

DR. WEILL: They did. They did.

MS. OSORIA: Through no fault of their own. They had some problems. But.

DR. WEILL: One of the reasons for using '87 to '93 period, when you go before '87 these state --

MS. OSORIA: Right.

DR. WEILL: -- the state OSHA numbers get much more -- the reporting gets more spotty. My understanding in looking at the California numbers is that '87 on have been integrated in the Federal IMUS --

MS. OSORIA: But the --

DR. WEILL: -- from IMUS --

UNIDENTIFIED SPEAKER: You want that clarified. You don't want -- the state didn't get in until 1990.

MS. OSORIA: Yeah. Exactly.

UNIDENTIFIED SPEAKER: Washington didn't contribute state data until 1990 and Michigan --

MS. OSORIA: Exactly.

UNIDENTIFIED SPEAKER: Or -- '89. Those are some of the biggest states. Now, California had data in '87 because there was a one-year period that was -- in Federal OSHA reporting. So, there's a one-year period from July '87 till somewhere around in the summer of '88.

MS. OSORIA: But even during that disengagement, because the governor nixed the state plan for one year, even during that time there's still the public sector that didn't buy into IMUS. So, you still have a couple of years you're throwing in there that aren't comparable. So, just for your final analysis --

DR. WEILL: Yeah.

MS. OSORIA: -- you want to keep that in mind --

DR. WEILL: That's very helpful.

MS. OSORIA: -- because it will throw your statistics off.

DR. WEILL: There are two -- one of the reasons I'm reporting a lot of annual data, it's obviously the more recent annual periods are going to have some of that -- this is '93 data, by the way. The second thing is in other studies I've done in other industries, I've used a Federal versus state cut base to get around that problem. But I appreciate the clarification.

Which of these two benchmarks is the right one to compare the use of OSHA resources is not clear to me, and I think it's one of the, one of the issues that has come out in this first phase of this research project, which has been asked about, given the nature of these firms relative to the entire construction industry: is this an appropriate level of inspection resources to be spending on these major contractors? But the flip question is: is there some reallocation towards some other group? And the obvious one would be contractors who are smaller in the industry. Might that make some sense?

In a moment I'll talk about the next steps of the project, which hopefully will at least allow us to shed some light on some of those questions.

A second, a second sort of interpretation of the relatively high percentage of resources that are being expended on the construction major contractors, that there would be -- saying well, these contractors are the ones where there are major problems. So it's another denominator to use or another benchmark to use. What percentage of injury and illness problems are associated with these major contractors in my top 2,000 group?

Well, as you know, the OSHA IMUS data does not contain injury rate data either on an establishment level, or you can't -- these sorts of things to the contractor level I'm studying.

One thing you can do, though, is evaluate compliance with specific standards. You can take the OSHA IMUS data and say: what does the experience of the inspector as they tour construction sites say about the number of problems found in terms of the number of violations cited?

Now, there's an obvious danger in just using total violations to do that. You know, total violations cited in an inspection, sort of comparing those across inspections or aggregating them up across multiple states or over time is going to obviously be flawed by different compositions of violations looked at by different inspectors. In this study we're trying a somewhat different approach, which is to focus on a subset of key industry standards and make that comparison based on the number of specific standards cited for a subset of OSHA standards.

In the particular group that I think it makes sense to look at, is obviously you want standards that are fairly consistently looked at in OSHA inspections, standards that when an OSHA inspector goes on a construction site basically their inspection regimen calls them to look into those. You don't want exotic standards or standards that have changed dramatically in terms of enforcement or even promulgation over the time period. But you also care about standards that are reasonably related to injury and illnesses, the standards that ultimately -- because they should produce better safety and health on the jobsite.

What I have used is I've benefited from the work done by people at the Department of Labor in 1991. It was a report done on the construction industry looking at the 100 most frequently cited OSHA standards related to physical hazards. The report included just a listing of the 100 most frequently cited, which is a less interesting number. But that went into a second report taking a subset of a 100 most cited that also under the opinion of the people compiling the study were the ones most directly related to physical hazards.

So, for each inspection in this construction national sample that I've shown you, I've actually calculated the number of standards of specific violations, so each of these 100 standards is linked to a very detailed level of the CFRs relating to the construction industry. And this is just an example of the type of standard that's actually been tracked in this analysis.

I've been through the CFR books more times than I ever would have thought possible. But if you do that and count the average number of physical hazard violations for these groups, the story that says these OSHA -- or at least the simple story at this level that says is OSHA emphasis on these major contractors arises from the fact that they are less safe employers is a little bit at odds with what you see in terms of the average performance of these contractors. This just tells you the average number of those 100 found over the period 1987 to '93 in the sample I've looked at, and they range from about 1.7 violations of these standards up to a high of about 1.9 somewhere in 1990, back down to about 1.7 in 1993. The second line gives you the same numbers, except these are serious violations of those 100. So, less than one violation has been found in this data set that are being classified as serious violations of those 100. And then the lower part of the table which you can examine in your packet gives specific aggregations of the 100 cited standards, providing -- giving the detail on which standards those actually are, in the areas of scaffolding, electric, and so on, over the time period.

If we compare the incidence of physical hazard violations by union status and size and say: well, maybe the patterns we see arise from different union work that tends to be more dangerous or larger firms tend to be much more dangerous, and that sort of adds a contributing factor to the pattern. Figure C3 again sort of undercuts that explanation, where you see very similar, in some cases slightly lower, incidence of these physical hazard violations in union worksites than nonunion worksites, and you also see only slightly higher levels of violations of the 100 physical standards among the larger revenue size from the smaller revenue size standards as well. So, the difference is there, at least at this very aggregated level did not indicate dramatic differences that sort of track the differences that we've seen in the enforcement characteristics.

If you look at the same group comparisons for serious physical hazard violations, again, the overall result we'd draw your attention to is they don't look that much different. In this case, the rates of physical serious hazard violations are slightly higher in the union sector for the smaller sized groups and the largest group, and then somewhat smaller for the -- this revenue size three group. But, again, whether you look at union/nonunion or by the different sized groups, there's not striking differences, not nearly as striking as the differences I showed you on enforcement levels across the different union status and sized groups.

MR. MASTERSON: If I remember your numbers correctly, they were 10 percent --

DR. WEILL: They were 10 percent -- or, actually, with the national sample, about the size or somewhat larger. They may have been 5.5.

MR. MASTERSON: The numbers that we're seeing were about 10 percent --

DR. WEILL: 10 percent.

MR. MASTERSON: -- which is about what you were showing right there, isn't it?

DR. WEILL: Well --

MR. MASTERSON: If you're going to look at percentages, I mean --

DR. WEILL: Yeah.

MR. MASTERSON: -- 10 percent is 10 percent. So, it seems to me that --

DR. WEILL: Right. Well, the thing that we would need to believe is that, let's say, a .05 number of physical -- serious physical hazard violations is driving a 10 percent difference in probabilities of inspection over those periods of time -- and it might be. I'm just posing -- I'm posing the issue that if you look at percentage terms, maybe that's right. If you look at the actual number of physical serious violations receiving, they don't seem that large, but maybe it is enough to explain the overall difference.

I won't go into it in great detail, to allow time for questions, but we've got a similar analysis at the regional level, trying to get a different cut that OSHA enforcement and compliance of sort of mid-sized contracting firms. For this study, with the help of the Center to Protect Worker Rights, who also helped us to the collection of the national list, but this using a group of states -- Kentucky, Ohio, Indiana, and West Virginia -- we've tried to construct a regional sample representative of a middle-sized range of employer contractors and have gone through the same search routine, except for this subgroup. And from a list of 3,800 contractors, we've found about 1,800 annual probabilities of inspection, not surprisingly for this mid-sized range of contractors in this regional sample, are about half of what they were in the national sample.

But, again, I guess relevant -- one of the relevant comparisons to look at is differentials of union/nonunion inspection probabilities. Here the inspection probabilities are even larger -- there's a larger gap between union and nonunion.

(Pause.)

UNIDENTIFIED SPEAKER: Just out of curiosity, how many more inspections were placed on injuries not employers?

DR. WEILL: You mean listed as fatalities?

UNIDENTIFIED SPEAKER: The inspection is driven due to injuries and multiple injuries at the jobsite.

DR. WEILL: In the data set that I have, I can only -- those are -- those -- if those are being picked up in a programmatic inspection, I can't break those out. I can't break those out. If it is listed as a fatality or a major catastrophe, those account for about 2 percent of all inspections conducted in the -- serious injury. At least in how IMUS classifies those. Those come under the same overall inspection category: fatality or serious injury.

UNIDENTIFIED SPEAKER: So what you're saying is 2 percent of those inspection were triggered due to actual accidents and injuries?

DR. WEILL: Right. Correct.

(Pause.)

UNIDENTIFIED SPEAKER: I was under the impression that accidents and injuries were the number-one trigger for inspections.

(Pause.)

MR. WARREN: Is not accidents and injuries the number-one trigger for an inspection?

(Pause.)

MR. WARREN: OSHA policy -- sort of a programming inspection --

DR. WEILL: No, not a programmed inspection.

MR. WARREN: No -- but the number-one priority if there is an accident where there's a fatality or three or more hospitalized, then that would initiate an inspection almost immediately.

MS. OSORIA: Excuse me. Can you come up to the mike so your comments will be recorded?

MR. RINGEN: Make your comments on the record.

(Pause.)

MS. OSORIA: Can you identify yourself?

MR. WARREN: Hi. My name's Joseph Warren (Phonetic). I work in the Office of Statistics. I work for Steve Newell. We do the -- we have the programmed inspection. We have the University of Tennessee contractors under us and we manage that. And John works on it too.

The number-one priority for doing an inspection would be if there's an accident or three or more people are hospitalized. But the number of those occurrences are not that great, as far as the number -- like here. Here's looking at '93 and there's 24,000 construction inspections. In the Federal states my guess is that probably three or four hundred fatality investigations. And a number, maybe 150, maybe more, that would involve three or more hospitalized. There's a number of cases that we'll do an accident investigation and the worker who was -- who looked very bad when he went to the hospital, turns out he's on the job the next day and he wasn't hurt bad. We still have an accident investigation. So, there's a number that are done that don't meet the criteria.

If you, if you look at -- if you include the state data, California, for example, initiates probably, I would guess, three-quarters of the construction inspections would be called accident inspections, but they are inspecting things that are considered near-misses or other things they hear about occurring on a site, so that they're using kind of information they get from whatever source as kind of a programming tool to select the places they go and inspect. But from Federal OSHA, there would only be, you know, the number he was talking about, 2 or 3 percent, and that's not --

MR. MASTERSON: It is consistent --

MR. WARREN: Right. Right. You are.

MR. MASTERSON: Okay.

MR. WARREN: And then the next priority would be complaint inspections, which is another segment, and then whatever time is left they do on programmed.

MR. MASTERSON: The reason I'm curious is more often than not, talking to people from inside OSHA, is it's very rare that they get to the programmed inspection list, much less through it. And what I'm seeing here is indicating just the opposite, that they're very often getting to it. And which one's right?

MS. OSORIA: I just want to make a comment that I think, with all due respect to you, and this is preliminary data, I think there's a lot of lumping in these graphs. And I think one thing that needs to be done is some separation out from the states that tend to do more targeting versus more complaints, because I think that skews -- these are lumped up numbers, and I think making conclusions on a preliminary data -- I mean, you're -- you -- you're not completely through all this, so, you know, I don't want to steal your thunder. But I think -- I would just caution people to not take these numbers at -- just take them at face value, knowing that they have to be refined a bit. Because there's a lot of variation between the state plans even, not just between the state and the Feds, and that could really change what's going on. So I just want to toss that out.

MR. WARREN: Could I add one more point on this? That while we talk about -- there's 2,000 companies, but how many worksites or how many construction sites do those 2,000 companies represent? OSHA -- the way, the way we program inspections is towards projects, so a project as ill-ly defined or precisely defined as you want, talking about what Dodge calls a project, and then we classify it that way, it's got a construction value over a million or more, then that'll be an eligible location for an inspection and we'll definitely be in that population more. But it will be randomized --

So, there -- we don't know things like whether it's unionized or not or -- or some of these other characteristics that you're showing are not identified ahead of time for OSHA. We don't know. And we don't investigate -- we -- they don't figure out whether they are or not. We don't even identify the -- really, the name of the general contractor or anything until after it's been selected. So, we really don't know.

DR. WEILL: And, in fact, that's one of the motivations for this study, is to look after the fact to see what is the de facto composition of enforcement regulation, and I certainly take the point -- the obvious cut to make is to do a Federal breakout separate from the state level.

MS. OSORIA: And even within the states there's some --

DR. WEILL: And maybe some variation. Absolutely.

MR. BURKHAMMER: Could you put your regional study, the one you had up there, with four space on it?

(Pause.)

MR. BURKHAMMER: I think one thing you've got to understand here, you've got three predominantly union states and one fairly predominant nonunion state, so that's going to skew the next chart you show, the big gaps between the union and the nonunion inspections. There are big gaps between them, where the rest of your gaps were somewhat narrow.

So I think when you do a study like this, you've got to understand the state you're studying and the makeup of the work in that state to get a true correlation of what you're doing.

DR. WEILL: Right. And the idea, I don't know if it was successful, the idea of this four-state region was to select a region where you had a set of contractors who were doing a -- a medium set of contractors who were doing work regionally in that area. I don't know if that's the right -- so this would -- based on sort of a product market cut, a regional market that made sense. But certainly differentials in --

Maybe if I could just make on quick closing comment. I put policy implications, but that's because I'm an academic. Academics always want to put a slot for policy implications, and this really isn't that. This is more of a pointer to the findings to come, and your comments today have been helpful, and I think what I also would like to say is the interesting issues come at the next stage of analysis.

What I think -- some of the results that I've -- what I've shown you today raise at least questions about what the de facto targeting systems at OSHA are playing out to be when you actually systematically look at a sample where you can figure out the universe and know something about the underlying size, union, and other characteristics of those firms. And it raises sort of the question that was just indicated by the last comment, and that is if we look at the actual impact of the current OSHA enforcement system, be that a project-based, a contractor establishment focus of enforcement, this sort of data allows us to look after the fact and see how that actually results in the deployment of resources.

The more important questions come are in the final two points, and that is the relationship between enforcement contractor characteristics and compliance, over time particularly, which we can do given the panel structure of this data set. And then a larger question about the relationship between compliance --

(Off the record.)

(On the record.)

DR. WEILL: So, the question of the relation of enforcement to compliance in the characteristics above, and then generally a topic that I think goes beyond the scope of this particular study, but that's the -- obviously the relationship in terms of compliance with specific standards and ultimate injury/illness outcomes ultimately tell us about the efficacy of this system from a more generic point in terms of safety and health hazards. Thank you for the opportunity to speak.

MS. JENKINS: Who commissioned and paid for this study?

DR. WEILL: The study is being paid for in part by the Center to Protect Worker Rights and also in part by Boston University.

MR. RINGEN: The reason that this study -- this study is some of the discussions we've had here. Notice: who actually gets inspected? Because we've heard -- we hear all kinds of anecdotal data about that there are a certain number of people or practice of getting inspected. And then reason to believe that in all likelihood the people who get inspected the most are the people who need to be inspected the least. That is what we started out with. If you think about the overall --

And thank you. David has to run, because he has a plane to catch.

The overall probability of being inspected is less than 3 percent for any one given employer. For these larger employers the probability of being inspected is about 50 percent.

UNIDENTIFIED SPEAKER: Higher.

MR. RINGEN: Yeah, or higher. Yes. Or higher. Exactly. And when you think about it, these large contractors, employers, have the lowest injury rates, so that in all likelihood the enforcement dollars are going -- and this is where we're trying to get to -- the enforcement dollars are going towards those contractors who also have by and large as a group the lowest injury rates. This is all about how do you measure OSHA's performance and so on. AnaMaria's involved in. And I'm sure we'll get back to it. It's not very easy to use these data, as you say. But I think this is a -- at least a first attempt to get at this question in sort of a scientific way. Trying to put together this cohort and follow it is an interesting approach.

Any other questions, comments?

(No response.)

MR. RINGEN: I think we have just about broken up in the back here already. If there are no other issues today, we will continue tomorrow morning at 9 a.m. sharp. I know Greg Watchman has a difficult schedule tomorrow, so we will start at exactly 9:00 regardless.

Yes, AnaMaria?

MS. OSORIA: It may be at our loss, but wasn't there going to be a public, wasn't there going to be a public comment period or something? Or that got moved to tomorrow?

MR. RINGEN: We haven't had a request from anybody to make public comments.

MS. OSORIA: Oh, okay.

MR. RINGEN: Otherwise we would have. That concludes today's session. Thank you all very much for coming and see you tomorrow morning at 9:00.

(Whereupon, at 4:15 p.m. on Thursday, March 13, 1997, the full Committee session was adjourned, to be continued Friday, March 14, 1997, at 9:00 a.m.)


REPORTER'S CERTIFICATE
TITLE: ACCOSH
DATE: March 13, 1997
LOCATION: Washington, DC


This is to certify that the attached proceedings before the United States Department of Labor, Office of Administrative Law Judges were held according to the record and that this is the original, complete, true and accurate transcript which has been compared to the reporting or recording accomplished at this hearing.

BAYLEY REPORTING, INC. March 13, 1997