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No editorial corrections were received from the participants for this meeting.

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

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH (ACCSH)

VOLUME 1
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC

Tuesday,
May 18, 2004

Gilmour
248 pp.

The meeting was convened, pursuant to notice, at 8:30 a.m., MR. ROBERT KRUL, Chairman, presiding.

APPEARANCES:

EMPLOYEE REPRESENTATIVES

MR. ROBERT KRUL

MR. FRANK L. MIGLIACCIO, JR.

MR. SCOTT SCHNEIDER

MR. WILLIAM C. RHOTEN

EMPLOYER REPRESENTATIVES

MR. GREG STRUDWICK

MR. MICHAEL J. THIBODEAUX

MR. MIKE SOTELO

STATE REPRESENTATIVES

MR. KEVIN BEAUREGARD

PUBLIC REPRESENTATIVES

MR. THOMAS A. BRODERICK

MS. JANE F. WILLIAMS

FEDERAL NIOSH REPRESENTATIVE

MS. CHERYL FAIRFIELD ESTILL
DESIGNATED FEDERAL OFFICIAL

MR. BRUCE SWANSON, DIRECTOR
Directorate of Construction

COMMITTEE CONTACTS
MR. STEWART BURKHAMMER, DIRECTOR
Office of Construction Services
Directorate of Construction

MR. STEVE CLOUTIER
Office of Construction Services
Directorate of Construction

SARAH SHORTALL, Esq.
ACCSH Counsel
Office of the Solicitor

CLAUDIA THURBER, Esq.
Counsel for Health Standards

MR. DAVIS LANE
On Behalf of Assistant Secretary Henshaw

MS. AMANDA EDENS

MR. BOB BURT

MR. NOAH CONNELL
I N D E X

WELCOME AND INTRODUCTION
By Mr. Robert Krul

REMARKS
By Davis Lane
Office of the Assistant Secretary

STANDARDS REVIEW - HEXAVALENT CHROMIUM

PUBLIC COMMENT

STANDARDS REVIEW - SUBPART V

C-DAC UPDATE
By Noah Connell

P R O C E E D I N G S

WELCOME AND INTRODUCTION

By ACCSH Chair - Robert Krul

CHAIRMAN KRUL: Good morning. Welcome to everyone. I think it would be appropriate if we go around the table and introduce ourselves. I would also like to ask the members from the public to introduce themselves as well.

Bruce?

MR. SWANSON: I am Bruce Swanson from the Directorate of Construction, OSHA.

MR. BEAUREGARD: Kevin Beauregard, with the North Carolina Department of Labor, representing the State Plan OSHA states.

MS. ESTILL: Cheryl Estill with NIOSH.

MS. WILLIAMS: Jane Williams, A-Z Safety, Scottsdale, Arizona, public representative.

MR. THIBODEAUX: Mike Thibodeaux, Lennar Corporation, Houston, Texas, employer representative.

MR. SOTELO: Mike Sotelo, W.G. Clark Construction, employer representative.

MR. SCHNEIDER: Scott Schneider, the Labor's Health & Safety Fund of America, employee representative.

MR. BUSH: David Bush, Dean Incorporated, Mansfield, Ohio, employer representative.

MR. STRUDWICK: Greg Strudwick, Greg Strudwick & Associates, employer representative.

MR. BRODERICK: Tom Broderick, with the Construction Safety Council, public representative.

MR. RHOTEN: Bill Rhoten, with the United Association of Plumbers and Pipefitters, employee representative.

MS. SHORTALL: Sarah Shortall, Office of Solicitor, counsel for ACCSH.

CHAIRMAN KRUL: I might mention that Frank Migliaccio, the labor representative from the Ironworkers, will be late. We expect him here about 10:00.

Could we have the public introduce themselves, sir, starting with you?

(Whereupon, the public introduced themselves.)

CHAIRMAN KRUL: Okay. Thank you very much.

For purposes of emergency exits, they are marked here. In the event of an emergency, you would not be using the elevators, you would be using the stairway.

In the event of any type of attack, there are secure rooms set aside and you will be led to them. The washroom facilities are out the hall to the right, I believe, in both directions. Okay.

Davis Lane is here in place of Assistant Secretary Henshaw to give us some remarks. Davis, if you would come up, please. Welcome. Thank you for coming.

REMARKS

Office of the Assistant Secretary

By Davis Lane, Office of the Secretary

MR. LANE: Thank you, Mr. Chairman. First of all, let me say thank you for the opportunity to bring you up to date on behalf of Assistant Secretary Henshaw on some of the activities of the Agency. Assistant Secretary Henshaw is currently in travel status, so he asked me if I would give you the update.

A number of things are ongoing right now in the Agency. I thought maybe I would highlight some of them for you. Certainly one of the first areas of interest, both internally and externally, are budgets for the Agency.

I will give you a quick update on where we are for 2005, and also remind everyone that we are in the process of beginning to plan to develop the budget for 2006 already.

Our 2005 budget shows an increase of a little over $4 million over 2004. The President's proposal is $461 million-plus.

In proposing that budget, one of the underlying themes is certainly focusing on fair and firm enforcement, outreach, training, education, focusing on the Assistant Secretary's interest in reducing injuries and illnesses in the workplace, and fatalities.

We think, really, that is the best approach, using all the tools that are available to us under the Occupational Safety and Health Act. We are going to maintain our staffing levels of compliance officers at the same levels.

Our projected enforcement program for 2005, in terms of just raw numbers of federal inspections, remain at a little over 37,000 inspections. There was an increase in the budget of $1.7 million for consultation and $4.4 million for compliance assistance and outreach.

We feel that this is a very responsible budget and that it will allow the Agency to continue to focus on the various significant issues for the Agency, things like Hispanics, which is certainly an area of interest. We have got a number of events that are planned that I will touch on that are coming up later this year.

Also, we want to begin to look at trenching and excavation. Last month, or the month before last, we had an annual planning conference with all of the OSHA senior executives to look at 2004 and put together our thinking for the Agency's activities for 2005, based upon the $461 million.

OSHA regional administrators and area directors will then, based upon the information that came out of our planning conference that supported the President's budget, began to develop their annual program plans for 2005.

Out of that there is some additional funding for the Harwood grants. Assistant Secretary Henshaw has moved toward changing the direction of the grants from one-on-one training to using new technologies and methodologies to reach and train more workers.

There is $4 million for training material grant developments, $1.4 million for targeted training topics, including construction. We are getting ready to publish the Federal Register notice tomorrow, I believe, for training grants under the Harwood grant program next year. A big part of this also will be opportunities to reach out to the Hispanic community.

Other areas that are of interest to the Assistant Secretary have been the advancement of OSHA's voluntary protection programs. Later this month, we will publicly announce some new initiatives dealing with OSHA's VPP program.

It is an effort to develop a process where we can bring interested work sites into the VPP program. That program is called Challenge. The idea behind this, is that there will be administrators for the various interested parties to help them move the VPP work sites into the full Merit and Star programs.

Also, something that is of particular interest to you is the reworking, after many years in development, of the VPP for construction. Since I have been with the Agency, that has always been a challenge for the Agency and employers and workers to get into a construction sites, especially mobile work sites, the VPP program.

We are planning on making some changes to the overall VPP program so that there is an opportunity for construction sites to have a little bit different process to get into the VPP program.

We were targeting having the Federal Register notice out on these changes to the VPP program for construction in August. This is something that Assistant Secretary Henshaw is particularly interested in, and making some changes to the VPP program for construction.

Once again, we still have a number of partnerships and alliances that involve employers in the construction industry. We have 123 construction partnerships across the United States, and 16 alliances.

As I mentioned a little bit earlier in my comments, and what you can begin to look for as areas of interest in 2005, we began to look at some of the data that is available to us concerning trenching and excavation.

When the trenching and excavation standard came out, or its revision, a number of years ago, we had a lot of outreach and enforcement activities and the trenching/excavation fatalities began to decline.

That decline has begun to take a little bit of a bounce upward, so next year you can see that the Agency will begin to focus on trenching and excavation in FY 2005.

Once again, we will begin focusing on efforts to reach non-English speaking workers. The latest Bureau of Labor Statistics data shows that, for 2002, there was reversing a trend to show that the numbers of fatalities associated with Hispanic workers has declined, which is a success after several years of where fatalities to Hispanic workers actually increased.

So, trenching and excavation, you will see us continue. Also, to develop and implement a program that was announced last year called Enhanced Enforcement.

This is an area where the area offices, after they run across employers and work sites that have a long history, a number of willful violations, where we will begin to do things like make inspections of other work sites, we will take those citations and when they become final orders of the Occupational Safety and Health Review Commission, we will file them with the courts so they would be enforceable in the future through the courts.

Other areas that I know, as I was looking through your agenda that you are particularly interested in, and I will just touch on those, but certainly, negotiated rulemaking on cranes and derricks is progressing on. You have got an update scheduled on that.

On silica, we are still looking at the SBRFA report. A lot of time on your schedule today is for hexavalent chromium. We certainly want to invite your full, and have no doubt that we will get your full, participation in discussion on where the Agency is going on hexavalent chromium.

In Chicago, back in March, we had some stakeholder meetings dealing with hearing conservation. We got three issues that came out of that that we need to look at: exposure monitoring, audiometric testing, and portability of records.

We are in the process of finalizing our review of the summary of that meeting, and our goal is to post it on the website shortly for everyone to have an opportunity to review. We are looking at having another stakeholder meeting in Washington sometime late in July of this year.

On confined space, the SBRFA process has been completed. We are working toward a target of publishing the proposed rule in early 2005. We will be presenting that to this advisory committee for advice.

I would like to mention a major event that is scheduled for July 22 in Orlando. It is the Department of Labor Hispanic Summit. We are in the process of finalizing the program and agenda for that.

We will be sending out notices, invitations, and posting on OSHA's and DOL's websites the focus of the Hispanic Summit, which is looking at issues that are a challenge both to federal agencies in general, and DOL specifically, and OSHA as well, that are brought to us by the Hispanic worker. We have got a number of OSHA people that are heavily involved in planning that summit.

Mr. Chairman, I have no additional comments. Once again, I am happy to be here in place of Mr. Henshaw. I will be happy to address any questions from the committee, Mr. Chairman.

CHAIRMAN KRUL: Thank you, Davis.

Any questions from the committee? Greg Strudwick?

MR. STRUDWICK: My name is Greg. I am one of the ditch diggers in the room. So, could you clarify a little more about the involvement of the courts initially in the investigation as far as trenching is concerned?

MR. LANE: Sure. Now, the Enhanced Enforcement program that I mentioned is not just to trenching, it is a program that covers various classifications of citations that we give. But the part that you specifically asked about, under the Occupational Safety and Health Act, we have the authority that, when the OSHA citations become a file order of the Occupational Safety and Health Review Commission, we can then take that to the courts and the courts can then make that a decision of the courts.

And if we run across the same situation in the past that is not only a failure to abate under the Occupational Safety and Health Act, but it could be also a failure to respond to the court action, then it would be enforceable through the courts as well.

MR. STRUDWICK: One more clarification question. When you say final --

MR. LANE: Additionally, we will not do that -- we're not planning on -- I think we have been working on this for maybe a little over a year, and we've so far only done -- and this is just off the top of my head -- maybe four or five cases that we have actually done this with.

MR. STRUDWICK: Well, when you say "final order," does that mean it has already gone all the way through the Review Commission, all the way to the top?

MR. LANE: Yes. All the way. Yes. Either the case was not contested and became a final order, or the contest was made and a hearing was held and the Commission's administrative law judge issued a decision, and then that decision could have been appealed to the OSHA Review Commission itself. So, all that remains the same. We will not be doing this in every single case.

MR. STRUDWICK: Thank you.

MR. LANE: Sure.

CHAIRMAN KRUL: Scott Schneider?

MR. LANE: Mr. Schneider?

MR. SCHNEIDER: Hi.

MR. LANE: Are you asking about motor vehicle safety?

MR. SCHNEIDER: If you want me to, I will.

(Laughter)

MR. SCHNEIDER: I heard you say that you were going to appoint a new assistant.

MR. LANE: Yes.

MR. SCHNEIDER: And what's the status of that?

MR. LANE: We are in the process of raising the visibility of motor vehicle safety in general within the Agency. One way that Assistant Secretary Henshaw wanted to do that, was to assign that responsibility to a specific person that would report into his office.

The naming of that individual is near. But Assistant Secretary Henshaw has wanted us to move programmatically on that, even without that person being designated.

It is important that I stress that the initial movement will be looking at the federal agency executive order, the requirement by executive order that all federal employees who are in a government vehicle or on government business, all occupants have to be buckled up, both in the front and the rear, as well.

So, the first focus will be to look at federal agency activities to improve compliance with the executive order on that.

Then, in general, as part of the Agency's strategic management plan that goes to 2008, we also want to enhance the awareness of motor vehicle safety and seatbelt usage.

Now, we are not saying in any way we are coming up with a new standard. It is strictly one of working, first of all, through federal agencies, and then putting programs together to enhance the awareness of motor vehicle safety and seatbelt usage.

MR. SCHNEIDER: Thanks. I had a different question, but thanks for that answer.

You had talked about the Enhanced Enforcement program and you said there were five cases.

MR. LANE: No, no. I do not have the specific numbers.

MR. SCHNEIDER: Yes. I was just wondering if you could tell us more details about its use in the construction industry. At the last meeting, we were informed that there were about 32 cases in the construction industry since last September, and we would get a more detailed report on this. I do not know. Do you have more information about it?

MR. LANE: No, Scott, I don't.

MR. SCHNEIDER: Okay.

MR. LANE: I don't have the particulars with me. What I can say, is the process is moving along and we have filed a number of those with the court. I do not recall the exact number.

MR. SCHNEIDER: Okay. Thanks.

MR. LANE: All right.

CHAIRMAN KRUL: I'm told, if you want it, you've got it.

MR. LANE: Okay. All right. You'll get a later update on this, won't you?

(Laughter)

CHAIRMAN KRUL: Mike Sotelo?

MR. SOTELO: Mike Sotelo, Davis. Just a couple of clarifications.

MR. LANE: Sure.

MR. SOTELO: That date for the Hispanic Summit was July --

MR. LANE: July the 22nd in Orlando, Florida.

MR. SOTELO: And is that going to be specifically for all industries, or construction, or what?

MR. LANE: No. It's a multi-track summit. It's just not for construction. But one of the challenges that we have specifically in the State of Florida, from when I was regional administrator, is a large part of the force is non-English speaking workers and Hispanic workers.

But this is not just something that is proposed just for Florida or the southeast. It is a national conference. We will begin to publicize it very shortly. We are still in the process of winding up some of the key presenters.

MR. SOTELO: Great. And the last question is, on your VPP, the changing of the VPP, is that going to affect any of the current agreements that you have dramatically?

MR. LANE: I don't think so. As a matter of fact, we're building on those. We are taking the lessons that we've learned from those partnerships that we had in place.

MR. SOTELO: Thank you.

CHAIRMAN KRUL: Yes. Kevin?

MR. BEAUREGARD: I understand there is some proposed legislation about increasing some OSHA penalties. What can you tell us about that? I am not sure I understand it completely.

MR. LANE: Well, I can only tell you what I read in the Wall Street Journal this morning.

(Laughter)

MR. LANE: There is some legislation that I believe is ongoing, proposed legislation that is ongoing right now to make some changes to things like, extend the contest period, as I recall.

Currently, the law is such that, if there are interpretations and litigation, those types of disputes, the courts and the commission defer to the Secretary. I think some of the legislation is to say that a review commission would have that final say. And I don't recall. There are two others that I can't recall, Kevin, and I'm really not up on them.

MR. BEAUREGARD: The reason why I asked, is I got a call about two, three weeks ago from Senator Edwards' office asking about North Carolina's position on the proposal for increased penalties. And at that point, I hadn't heard too much about it, so I'm trying to find a little bit about it.

MR. LANE: If you want, I'll forward the Wall Street Journal article that I saw this morning.

(Laughter)

MR. LANE: I really don't know, Kevin, much about the specific at all.

MR. BEAUREGARD: Okay. Thank you.

CHAIRMAN KRUL: Yes. Jane. Jane Williams.

MS. WILLIAMS: Sir, you've mentioned about confined space, and I believe you said that it would come back to this committee. The version that is out now is so drastically different from what left this committee. Will we have an opportunity to provide you input or will it be a final draft just for us to know that it is present?

MR. LANE: I will give you that answer later.

MS. WILLIAMS: Okay.

MR. LANE: Right, Mr. Swanson?

(Laughter)

MR. LANE: She will get an answer later. Yes.

MS. WILLIAMS: Okay.

The second question is on the Orlando summit. Back when we went to Mexico City, the United States, Canada, and Mexico agreed, in theory, to come up with a training program that could be recognized among the three countries.

Would any of that be part of this Hispanic conference? That was supposed to come at another point in time, and I'm wondering if this is part of that venue.

MR. LANE: No. No.

MS. WILLIAMS: That's separate?

MR. LANE: That's still a separate, ongoing activity, but based upon the agreements with Canada, the United States, and Mexico.

The summit's primary focus is to focus on trying to get some better insight into the challenges and ways to address those challenges that workers and employers face with non-English speaking workers, in this case, specifically Hispanic workers. So, it would be something separate.

MS. WILLIAMS: Okay.

On silica and hexavalent-6, you know I've got to go here.

MR. LANE: Okay.

MS. WILLIAMS: Reading all this language and having been involved with the silica statements that came out, the enhanced sanitation issues, which are far and above any levels of enforcement on construction sites at this point under the existing, do you have any plans on adding to your enforcement program sanitation in any way, shape or form, or to at least help achieve some of these new goals that you have, and other standards that you are writing at this time?

MR. LANE: I was looking, and I was reviewing back in my mind the regulatory agenda, that is not, at this time on our regulatory agenda.

MS. WILLIAMS: It is not?

MR. LANE: No.

MS. WILLIAMS: Is there any opportunity that that might become an Enhanced Enforcement program?

MR. LANE: Well, the Enhanced Enforcement program is directed toward work sites where OSHA has had a number of willful violations where there, in the past, have been failure to abates, where we've run across a situation where an employer has not responded to OSHA citations.

So, it is not a program that is focused on one particular issue. The Enhanced Enforcement program is across the board wherever those types of situations come up, so the answer to your question is no.

MR. SCHNEIDER: I think she intended to mean the special emphasis program on sanitation.

MS. WILLIAMS: I did. I'm sorry. I said Enhanced Enforcement.

MR. LANE: Oh, not enhancement.

MS. WILLIAMS: I'm sorry.

MR. LANE: Oh. Special emphasis.

MS. WILLIAMS: Special emphasis program, is what I meant. I'm sorry.

MR. LANE: No. No, not at this time.

MS. WILLIAMS: And my last comment, sir. Being from Arizona, we are astutely aware of the administration's goals to, in some manner to be determined, help legalize persons coming into the country so they can work and fill the voids that we apparently have in construction.

No one has mentioned training, and training, of course, is one of your primary goals that you have set up for this year's budget, as well as 2006, I think I heard you state.

Is there any way anyone is looking at how they are going to mandate that such persons who would be legalized be mandated training before they could be exposed to these hazards that are coming into the construction environment?

MR. LANE: We are not looking at that approach. Our approach is multi-faceted. One way, is we have reached the agreement with the 49, I believe, Mexican consulates across the United States to help them get the message out to the non-English speaking workers about their rights under the Occupational Safety and Health Act.

Also, a number of OSHA's OTI courses are available in Spanish. We have a number of our compliance officers who have put on local training in area offices in Spanish.

Assistant Secretary Henshaw has a national task force that is led by Regional Administrator John Miles to look at Hispanic issues, and specifically as part of that is trying to look for ways to get training available to the Hispanic workers.

We are doing that through a number of ways, through some of the local community services, and in some instances working through the local religious organization, some of the dioceses.

So, we recognize the unique challenges of employers and workers in the Hispanic community and, through these efforts I outlined, are trying to address those challenges.

But to your specific question there, there is nothing that OSHA has that is under way that would require them to have some qualification or receive some mandatory training as part of their entry into the country.

MS. WILLIAMS: Thank you, sir. Thank you, Mr. Chairman.

CHAIRMAN KRUL: Just to pick up on that a little bit, playing into your hands, the difficulty, and most of the unions are aware, the influx of especially Hispanic immigrant labor and the difficulties at multiple levels of dealing with the language barrier, the comprehension barrier, the education levels of those workers. It is extremely difficult.

I do not ever see that as an initiative for the Department of Labor to try to undertake, just from the experiences we have had. It is tough for employers, it is tough for the union representatives.

That communication barrier is very, very difficult. I think we have had this discussion here before. The direction that we try to steer people in is ASL, and that is difficult, too. We tried to use incentives.

I don't want to get into the argument of, if you come to America, you need to speak English. That is not my point. The point is, it is very, very difficult to deal with a burgeoning population.

I wanted to throw an "atta boy" to you. You mentioned the reduction in fatalities among Hispanics under trenching, but you meant that for all of construction it has declined.

MR. LANE: Yes. Yes. Not just trenching.

CHAIRMAN KRUL: And I know the DOL has ongoing and proposed initiatives to continue to deal with that problem, like this summit. I think we should give you that "atta boy," that in a very short period of time, to see those fatalities come down is quite remarkable because it was not a good statistic when it first came out. So, job well done.

Yes, Greg?

MR. STRUDWICK: I want to add another "atta boy." I made a request of Mr. Swanson and the Construction Directorate to send Mr. Devora to the Texas AGC Safety and Health Committee meeting last month.

It was a little difficult to organize and it cost a little money on your behalf, but Mr. Devora showed up. There were some reservations on the committee members' side prior to his arrival.

But after he explained himself and told them what we were trying to focus on, he was very well-received and we would like to have him back again in October for our General Safety Directors Forum meeting to explain how we are progressing throughout that. So, I appreciate Mr. Swanson and his support, and Mr. Devora, and obviously our bosses.

MR. LANE: Well, thank you very much. We welcome those comments. My feeling about things like that is, when Mr. Devora looks good, I look good.

(Laughter)

MR. STRUDWICK: Well, we certainly looked good.

MR. LANE: So, I'd publicly like to thank him for looking good.

MR. STRUDWICK: He still looks good.

CHAIRMAN KRUL: Any more questions from the committee?

(No response)

CHAIRMAN KRUL: Davis, as always, thank you.

MR. LANE: Thank you, Mr. Chairman.

CHAIRMAN KRUL: We know it is on behalf of John, but we are always glad to have you here.

MR. LANE: Thank you very much.

CHAIRMAN KRUL: Thank you.

I did not mention, when we asked the public to give their self-introductions, if you would like to speak during the public comment period, if you would slip me a piece of paper with your name, title, and what you'd like to speak about so we can make room on the agenda for you and recognize you.

I want to make an announcement that there are some interested people in town who are hoping to come over for the public comment period. They are representatives of NECA, the National Electrical Contractors Association, the IBEW, the International Brotherhood of Electrical Workers, and possibly Commonwealth Edison, to give some comments and to offer their services for any workgroups regarding Subpart V or any input that they could have for Subpart V. So, if we could do that. All right.

STANDARDS REVIEW - HEXAVALENT CHROMIUM AND SUBPART V

CHAIRMAN KRUL: Let us move on to what the meat of this thing was supposed to be about. We have had several e-mails and discussions amongst committee members that have gone back and forth.

I'm not clear myself exactly where this is. I see Steve Witt out in the audience, and if need be, we will call Steve up here for clarification. But let us open up this discussion hexavalent chromium.

MR. SWANSON: Sure. Thank you, Bob. Bruce Swanson, from the Directorate of Construction.

The way we put the agenda together for today and half a day tomorrow, was to try and leave as much room for expansion and shrinkage as you folks felt you needed on these two proposed standards that are before you.

OSHA needs, at the end of the day, this committee to indicate, through its advice to the Secretary, your opinion on these new proposals, and we will take it from there.

At the February meeting, you recall, Mr. Witt made his staff available and we had some conversation. There were some complaints from members of this committee, legitimate complaints, that you felt you hadn't had enough time to look at the background information.

In the interim between the two meetings, the material that had been supplied to SBREFA was put on our website, and that website made available to you folks, and you were given the addresses, and I presume that each of you has poured hundreds of hours into reviewing every comma of it.

We would now like to have a discussion, and we'll handle it any way the committee wants to handle it. I see Steve Witt is back in the audience and has some staff.

If necessary, as Bob says, we will revisit anything in substance that you folks want to talk about. But the idea is, we will handle hexavalent chromium in the next 15 minutes, or 5 hours, if that's what you want.

(Laughter)

MR. SWANSON: Then we'll move on and we'll do Subpart V. I know that I also have heard there are people in town that would like to give public comment on Subpart V, and we were unable to tell them when to be here because that is dependent on how hexavalent chromium goes, I guess.

But, with that brief introduction, Bob?

CHAIRMAN KRUL: Scott, let me just, to put it all out on the table, as Bruce had said, last time we felt there was too much information being crammed into a very short time to make any recommendations or give any advice on, be that as it may. Then there were challenges that wanted to be made to the information that was presented.

In the interim, we've gotten notions of exclusion of wet Portland cement from coverage in the standard, which upset some people. We have also seen, from the SER under the SBREFA reports, a recommendation to exclude construction in its entirety, which led the Chairman to wonder why we would even be discussing hexavalent chromium at this committee if that were the case. But that's why we're going to discuss it.

So, there's a couple other issues that I know other people have, and that's the reason that the Directorate and the DOL have left so much time for discussion. We have the folks here to give us the answers that we seek, I hope.

Let's put it out on the table. Scott?

MR. SCHNEIDER: Thanks, Bob. I had two questions. One of them is, at the last meeting there was concern about the time frame to get this thing published. We had called for a special meeting in March so that there would be sufficient time for whatever comments we make to be accommodated or incorporated into the proposal.

I am wondering, first of all, whether that still holds, given that we have delayed this meeting until May. Is there sufficient time for whatever input we have to make itself manifest in the proposal that is going to come out in October?

MR. SWANSON: I will let Mr. Witt comment on whether we have sufficient time or not. It is my understanding that there is sufficient time for us to get this process through and completed, although we don't have a whole lot of time hanging heavy on our hands.

A point of clarification, though. This meeting was not delayed. The committee had conversation and a request at its February meeting that we meet again as soon as possible, and the committee indicated that if OSHA needed it, it could meet in March.

OSHA made the decision that it did not need this committee in March or April, and the decision was made, again by OSHA, that this meeting in May, close to what it normally would have been anyhow--we might be a week or two early--would still leave us sufficient time without anybody getting in a panic posture. That is why we are having the meeting when we are. It is my understanding that this is still timely, and everything will work from here.

MR. SCHNEIDER: Yes. I had one other question. At that meeting, we had some discussions about the regulatory analysis that had been done. I had particularly asked Bob Burt for some data on the cost estimates that he had made with regard to Portland cement.

Subsequent to that meeting, we talked and I know they have revised their estimates as to the costs and benefits of including Portland cement in the standard.

I am wondering if they are going to be presenting those revised cost estimates to us, because I do not see how we can discuss and make a decision about that until we get those revised estimates.

The estimates that he gave us in February were not in the materials that we were given. The estimates he gave us over the phone were wildly, I thought, off the mark. We had subsequent discussions about that, and he agreed that those were preliminary estimates and they were being revised.

So what I am wondering is, is Bob Burt going to report to this committee on whatever new estimates he has?

CHAIRMAN KRUL: Steve, would you give your name and title for the record?

MR. WITT: Steven Witt, Director, Directorate of Standards and Guidance. I think Bob said, when we were at the meeting in February -- I am not sure I would characterize them as wild guesses, but preliminary numbers, and Bob said at the time he was continuing to gather information and evaluate and analyze that information.

Mr. Chairman, we were prepared, according to the agenda, to be here, to participate in discussion, and answer question at 10:00. I just sent one of the staff people to get Bob Burt, so Bob and Mandie Edens can join me.

But when Bob gets here, he has a sheet, a two-page analysis and summary that he will hand out when he gets here that I think responds to Scott's concerns and Bob's concerns that the numbers were preliminary in February. They are more refined now, and I think he's more comfortable with these numbers. He will be handing them out as soon as he gets here.

CHAIRMAN KRUL: Thanks, Steve.

MR. WITT: Bob, did you want me to comment on the schedule?

CHAIRMAN KRUL: Sure. Go right ahead.

MR. WITT: Our schedule hasn't changed from the one I gave you in late February. We are still bound by the court order to publish the chromium proposal on October 4th.

OMB gets 90 days for review. Our goal is to have it to OMB by June 15, which will allow them the full 90 days, and an opportunity, once they have completed their review, in mid-September to make any necessary changes and publish by October 4.

If the committee is able to, and we expect they will provide us advice and give us input today, we do have time to consider that input and incorporate it into the document before it begins its departmental review, and then to OMB.

So, yes, this meeting is timely and we do look forward to any input from the committee today. We do request that any advice from the committee be given to us by noon tomorrow when you adjourn.

CHAIRMAN KRUL: Bill Rhoten?

MR. RHOTEN: Yes. Just one question. Does this court order allow OSHA to exclude construction from the standard? I'm understanding that OSHA can decide to not have a construction standard to address this issue. Is that correct?

MR. WITT: Well, let me ask Sarah to respond, because I guess that's more of a legal question. We have a position on this, but I'm going to let Sarah respond.

MS. SHORTALL: I am actually going to punt it to Sue Sherman and Claudia, who are the project attorneys.

MR. WITT: In that case, I may just respond.

(Laughter)

MS. SHORTALL: They're right here, so they can explain the order more fully than I can.

CHAIRMAN KRUL: Please identify yourself for the Court Reporter.

MS. THURBER: I'm Claudia Thurber. I'm OSHA's counsel for Health Standards.

It is quite true that the court order does not say, go forth and do a construction standard. On the other hand, when you read the decision, this is probably the angriest court decision I have ever read. I don't know about you, Steve, but this is not a court that had much patience with OSHA.

When they said "propose a standard," I think we read that as proposing a standard as we do most others, which includes maritime, construction, and general industry. I do not think it is a subtle question as to whether we absolutely have to, or we don't have to, but I think to not propose will raise the ire of the court.

We've done a lot of work on construction, on the construction side of the standard, along with maritime and general industry. So, it is rather beyond prudent.

MR. WITT: Beyond prudent. That's not a legal term.

MS. THURBER: It is not.

MR. RHOTEN: I guess my real question is, is it possible for you to exclude construction? I'm hearing that you don't want to, but you can.

MR. WITT: I mean, I agree with Claudia. The language in the court order doesn't clearly say the Agency must cover general industry, maritime and construction.

The Solicitor's Office's reaction is, based on the nature of the court opinion and the wording, that they strongly suggest that they be covered. It is not clear that the Agency must cover all three.

As you know, the SBREFA report contains language that suggests that construction not be covered. That is, the SBREFA part is not necessarily in total opposition to the court order. The court order is not clear on that point.

MR. RHOTEN: I guess, then the other question is, if OSHA decided not to go forward with the construction standard, how would that logic take place, and at what point in time? In a month from now? Have you decided? Who's going to make that decision, I guess?

MR. WITT: We're here today because it is a draft. Final decisions on the various issues have not been made. They will be made over the next few weeks as we prepare the document for Departmental review and OMB review. That's why we seek your input today. That decision will be made by the Assistant Secretary.

CHAIRMAN KRUL: Greg Strudwick?

MR. STRUDWICK: Based on exposure -- in other words, I understand what Mr. Rhoten is saying. My contention as a contractor -- and I've stood out and watched concrete, seen it, that cement is only a portion of the concrete that goes on the ground. Okay. And it's becoming so automated.

People in this room that represent manufacturers of personal protective equipment that's being utilized in the field, and everything that I read that Mr. Schneider was so nice to point out, exhibits the fact that there is not an awful lot of exposure, and where there is some exposure, it's more of an allergic reaction to the real sensitive people that probably wouldn't stay in the business anyway.

And as far as highway construction is concerned, it is a non-issue as far as exposure is concerned. Now, masons, I'm not sure about. I know that my uncle, my grandfather and several family members were masons.

My grandfather died at 96. My other uncles are long-lived. One just recently passed away in his 80s, and if hexavalent chromium had something to do with it, I'd be surprised. So if there's an exposure, I think we should pursue it. If there's not, I think we should be excluding it.

MS. THURBER: Let me just add one thing. We're at the beginning of a rulemaking process and decisions, as Steve pointed out, will be made right up to the time they walk it over to the Federal Register. But there is also all of the rest of the rulemaking, collecting information from everybody.

I think it is all of our hopes that you, and everybody like you, will bring in either, there are no exposures or they're just exposed terribly in this, so that we have excellent information with which to go forward or not.

CHAIRMAN KRUL: Wait. I know this is contentious, but we're not going to let it get out of hand. We're going to go in order through the Chair.

MR. WITT: Bob, let me add, as I went through and discussed the nature of the input we would like from the committee, and the schedule, which I did in late February in Chicago, as Claudia said, once the proposal is published in early October, that will begin the next phase. There will be an opportunity for public comment.

Of course, we invite all of you to participate and provide any comments, opinion, data that you may have. There will be a public hearing probably the middle or late February of next year, and then a post-hearing comment period and briefing period after the hearing.

We will then take all the information available, the information available in drafting the proposal, the input from this committee, all the comments, testimony, post-hearing comments we received during the rulemaking, and that will be used as the basis for writing the final, which we're bound to publish by January '06.

CHAIRMAN KRUL: Let me be clear, especially as the Chairman, that we're talking about two exclusions, an exclusion for wet Portland cement and a total exclusion of construction from the standard, and they are not one and the same.

So, there is a question regarding welding fumes, especially with stainless steel welding in construction. I mean, I want to make sure we understand where we're going with that. Okay.

I've got Jane, and then Scott.

MS. WILLIAMS: Mr. Witt, my comment would be that if we provide you tomorrow, at the conclusion of our meeting, a report that tells you all the reasons, pro or con, that we believe construction should be excluded, to include the potential economic analysis, not taking into consideration the proper thing, is that what you're looking for?

If it was voted upon by the total committee in showing you that we felt unilaterally that construction should be excluded, would you accept that then in that term? Is that what you're looking for?

MR. WITT: It's really up to the committee to decide the nature of the advice, the issues you'd like to discuss, and hopefully supply any information/data that would support that advice.

Yes, it's really the committee's decision as to what input they'd like to have. What I can commit and assure you, is that we will review all the materials you give us. We will place it in the docket and we will make sure that it is all considered as part of the total information available to us as we complete the final proposal.

MS. WILLIAMS: And that docket, sir, would be available to all stakeholders to review what ACCSH's opinions were on those issues?

MR. WITT: Yes, ma'am. The docket is located on the second floor of this building. It's in our technical data center. All information that we've received to date, and all comments that we receive after the proposal, everything is put into the docket.

All the information that we receive from this committee will also be placed on the docket, not only for our consideration, but anybody else who is interested in this rulemaking.

MS. WILLIAMS: Thank you.

MR. SWANSON: Mr. Chairman?

CHAIRMAN KRUL: Yes.

MR. SWANSON: If I may. Bruce Swanson from the Directorate of Construction, again. Let me be clear here. What OSHA is asking this committee for is, the word of the statute is, the advice of this committee. It is a statute that pre-dates the OSHA statute.

We want your advice on this particular issue, your advice to the Secretary on what she ought to do with it, in any way, shape or form you want to give that advice. The statute is unclear and we'll make of it what we must when you tell us.

Almost everyone on this committee wears three or four other hats. They represent organizations, associations, companies, and you all have your individual opinions.

Steve has pointed out that we will be going forward with a standard promulgation process that is a long process. This one is just to meet a court deadline to get out on the street with the proposal. Each of you are free to comment in the future as individuals, as companies, as associations.

This gathering here is to ask a body of 15 people--and we're a little short today, I think there's 11 in the room--as a committee, what is your advice? And if that advice is not unanimous, if it's split, let us know that, too, and who has what to say. We're transcribing this.

We'll go forward with whatever we end up with at the end of the day. It need not take any particular format. Just make it clear, through the Chair's action, that that is the formal action of this committee. Thank you.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Yes. I just wanted to respond to Greg's comment. I think, based on the information that we have been given, it is clear there are substantial exposures to hexavalent chromium in construction, primarily in welding and painting operations. There is no question about that.

In cement operations, there is not a lot of airborne exposure, but there is a substantial amount of dermal exposure and a substantial number of cases based on the data we have.

So, it's two different things, but there is evidence that there is a problem, particularly airborne exposures in welding and painting, and dermal exposures in cement.

CHAIRMAN KRUL: I would ask Steven on that point, given all the circumstances, your court order, the rush to get the standard out, does that mixing and matching of airborne PEL versus dermal exposure create a problem in the standard setting process?

MR. WITT: I don't know. A lot of things create problems for us that we have to deal with. And it's not just the nature of the exposure, it's the number of statutes we have to comply with, executive orders, and other steps.

It is another level that we have to deal with in both doing the cost estimates, looking at exposure, and the nature of the controls. Yes. I do not want to suggest that dermal exposure coverage would automatically be prohibited because it's different than airborne. There are reasons to consider including it or excluding it. It will, when that decision is made, be carefully crafted and discussed in the preamble to the proposal.

CHAIRMAN KRUL: Okay.

Mike Thibodeaux?

MR. THIBODEAUX: Unlike what Bruce said, I didn't read 100 hours, but I did read more than I really wanted to. I did come across another study by NIOSH back in 1974 concerning cement and chromium. I've got a copy of it to hand out to the committee. They ran patch tests, et cetera.

Basically, it wasn't the hexavalent chromium that caused a problem. One in 95 of the test folks that they did had an allergic reaction to hexavalent chromium. The rest were just because of the irritant nature of the concrete. I think that was only about 10 people. It just seems that some of the other reports that I read were dealing with concrete that was not U.S. concrete. It was a Finnish/Danish/Swedish report, et cetera. From what I've read, I didn't see that hexavalent chromium was what caused the issue as far as the dermal contact.

As I said, I wanted to pass this out to the committee so they could look at that report. I realize it's 1974, but it covers all of the things that we've read in all of these other reports and seems to come to a conclusion that there is not an exposure, a great exposure, to hexavalent chromium in Portland cement.

CHAIRMAN KRUL: You may pass them out. That is why Mr. Witt took that curve ball I threw him and hit it out over the center field fence.

(Laughter)

CHAIRMAN KRUL: Steve, you said Bob Burt is coming in at 10:00.

MR. WITT: He's here.

CHAIRMAN KRUL: He's here. Why don't we take a 15-minute break. The Chairman hasn't even had a cup of coffee yet because he was late getting here. Let's take a 15-minute break and come back around five of 10:00.

(Whereupon, at 9:40 a.m. the meeting was recessed.)

AFTER RECESS

[10:00 a.m.]

CHAIRMAN KRUL: Steve, I see we're joined by Bob Burt.

MR. WITT: And Mandie Edens.

CHAIRMAN KRUL: I'm sorry?

MR. WITT: Mandie Edens.

CHAIRMAN KRUL: Okay.

And for the Court Reporter, could you give your title or the department that you're with?

MS. EDENS: Amanda Edens, with the Directorate of Standards and Guidance.

MR. BURT: Bob Burt, Director of the Office of Regulatory Analysis.

CHAIRMAN KRUL: Thank you, both, for coming. I'm sure Steve gave you a little run-down of where we were up to this point.

Scott, I think you had some questions for Bob regarding the original cost/benefit analysis.

MR. WITT: Excuse me, Mr. Chairman.

CHAIRMAN KRUL: Yes. Go right ahead.

MR. WITT: Let me point out for the record that Mr. Bird has handed out a two-page document headed "Hexavalent Chromium Cement Work in Construction," which contains some of the information that Mr. Schneider was referring to earlier.

MR. BURT: Yes. This is new work that we have done. I will go through it quickly. There are a number of uncertainties here. The first, is how many workers are affected. For this analysis and this two-pager, we have assumed that all cement masons, all bricklayers, all tile layers, all persons who work as laborers and helpers, would occasionally come into contact with wet cement.

That gives us a total of a million workers who are at least sometimes in contact with wet cement. They're spread across approximately 100,000 total establishments in the construction industry, many of them very small. It also affects some state and local governments that do some of their own construction work with public employees.

What follows then is a list of possible controls and practices. This is not what OSHA is recommending. At the moment, we are not recommending anything in this area. It's to look at the cost of some various things that might be done.

The most expensive -- and for each of these, there is a baseline. That is, we know that some people are doing some aspects of these things. But even with a very substantial baseline, many people providing, if not rented uniforms, adequate clothing assurance, adequate gloves, adequate safety glasses, when you're looking across a million workers, you do not need a lot of people who aren't doing it to get some fairly substantial annual costs, and also benefits.

The most expensive element that one could do is to insist that there should be rented uniforms for everyone. That would cost $228 million a year. Gloves, where they are not now used, $15 million a year. Safety glasses--and we only applied these in situations where we thought there might be some splash hazard, not to all workers--is $6.4 million a year.

Assuring hand washing facilities and change rooms at all places that do not now provide them that do cement work, we estimated as $67 million a year. We looked at improved training and assumed, for example, one hour of training for everyone. That would be $30 million a year. Recordkeeping associated with it, if you were going to do all of the above, about $5 million a year.

Finally, using the Rhoutenberg study, we projected the expected number of cases of dermatitis as 2,000 to 10,500 in wet cement. This is not isolating out those that are associated with chromium, hexavalent chromium. This is all dermatoses among cement workers.

If you assumed the standard was 95 percent effective, if the above measures are 95 percent effective--and we're very uncertain about the effectiveness--then you would eliminate 2,000 to 10,000 of these. If they're 50 percent effective, 1,000 to 5,000 of these.

We also looked, though this is for informational purposes since OSHA does not make decisions on benefit/cost analyses, the dollar benefits in a cost of illness framework.

That means, what does it cost to treat and what is the cost of the time away from work? That gave benefits of $2.5 to $13 million a year at 95 percent, and $1 to $7 million a year at 50 percent effectiveness. That's what we came up with after working on this a bit more.

Questions?

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Bob, in the Rhoutenberg study, she estimated that the costs of preventing these illnesses would be about $1.5 million and the disease cost to insure, as the government, would be $135 to $679 million per year. For every dollar spent, there would be $90 to $450 saved. I am just wondering how your numbers are so different than hers.

MR. BURT: I didn't review that aspect of the study. It strikes me as an extremely high estimate for the cost of 10,000 dermatosis cases, though, if you prevent every one of them. We are using the same basic system of estimating the number of dermatoses.

I looked at several different sources for this on cost of illness and came up with numbers in the ballpark of what we're looking at here.

MR. SCHNEIDER: So you didn't review her figures on this?

MR. BURT: I'm sorry. I didn't look at her five bottom-line results, and I'm really not sure where the costs came from in that.

MR. SCHNEIDER: I mean, she had a wide range of costs, but they ranged upward to several thousands of dollars per year for some of the more severe cases, obviously. She included costs of not just medical treatment, but Worker's Comp costs, unemployment insurance, things like that. Job retraining for those that are severely ill.

So, I have a question about the uniforms. Obviously, the bulk of the cost is what you have here, $230 million per year for uniforms. Could you describe that a little bit more?

The last time we talked, you had said something about, there was supposed to be a requirement for Tyvek suits for workers that are doing cement work. Is that still what you're talking about?

MR. BURT: As I said, these are controls and this is a place I'd be perfectly happy to have more advice on. Since we aren't looking at a specific standard at this point, we costed out the various things we'd seen recommended and had information on. This is not a table of what OSHA ought to require.

MR. SCHNEIDER: Right.

MR. BURT: This is a table of costs of various measures that people have suggested.

MR. SCHNEIDER: And you said the cost that you come up with for these various pieces of protective equipment and hygiene were based on existing conditions, and what it would take to increase them.

MR. BURT: Right. It would be much higher without a very high baseline. Frequently, it's 70, 80, 90 percent already providing much of what was needed.

MR. SCHNEIDER: So you're saying that 70 to 80 percent of workplaces already provide this personal protective equipment?

MR. BURT: That's our estimate, though input on that would be welcomed.

MR. SCHNEIDER: Okay. So I'm just not clear. If 70 to 80 percent are already providing this, then how are your estimates so high for the cost of coming to complete compliance? Would those costs be attributed to this standard or would they be attributed to additional enforcement of the existing standards?

MR. BURT: That's another reason I talk about these as control practices, was at the economist, I did not want to be involved in a debate about what is already required under various other standards.

MR. SCHNEIDER: I'm just wondering, because normally when you promulgate standards, they can't attribute costs to that standard if those costs could be attributed to lack of enforcement or increased enforcement of existing standards.

MR. BURT: OMB's position is, and their guidance, is if you feel that the standard you're putting out would increase the level of enforcement of another standard, then those costs are attributable to the standard.

We aren't sure that we agree with that, but that's the official OMB guidance position. Thus, if making this part of hexavalent chromium would do nothing to affect our enforcement, then OMB would say to attribute no costs.

If, on the other hand, we feel that adding provisions of this kind to a hexavalent chromium standard would increase the enforcement of this, then they would say you should add it to the cost. A very odd call to try to make, in practice, but that's the official answer that OMB has given in its guidance on this issue.

MR. SCHNEIDER: Thanks.

CHAIRMAN KRUL: Jane Williams?

MS. WILLIAMS: Mr. Burt, looking at the possible controls and work practices, the personal protective equipment, rented uniforms, I read in one of the documents where it is very unlikely to find facilities that would wish to clean these uniforms because of the hazardous conditions, and, second, replace as needed.

We are lucky we get our workers to come to work in construction with shirts on, let alone go through uniforms. So, my concern is, these numbers are, I believe, incredibly low. The glove issue, I think, is one that is achievable.

Safety glasses, certainly, is achievable. But then would you come upon costs for cleaning safety glasses that they do not have to go through at this point in time? I don't think that would have been considered in this cost here.

But the cost of establishment or entity -- and my comment also applies to the hygiene areas, when you're looking at an entity of $682 for hygiene, for hand washing that does not exist at this point at all, I think those numbers are incredibly skewed.

But, per establishment -- and you had mentioned, or it had been mentioned at our prior meetings, you would be talking about adding change rooms.

I did some studies. Mostly, a change room only comes with a construction project cost of $20 million plus and would not even be existent. You do not build a change room for any of these type of dollars on a construction facility.

So, therefore, you would have a major impact of having to have a change room. If you were to require workers to remove clothing on the basis of which you're referring to here, you would have to have that. So, I see a complete imbalance in that regard to those numbers.

MR. BURT: Let me make a couple of points, very briefly. We are looking further into the issue of the laundering. We did obtain some estimates, but we're in the process of making sure--and this is throughout the standard--to find out more about the issue of what the labeling would add to the laundry cost.

On change rooms, I am sorry. I should have written there "change areas." One of the things we've discussed quite a bit is how exactly to define a change area, which does not necessarily mean building an entire facility for the purpose of having a place to change.

This assumes something fairly simple, just a small, covered area where workers could change, not building an entire building or hauling in a trailer for change purposes.

MS. WILLIAMS: Those areas would have to take into consideration sexual considerations. Those areas would have to be secluded for male/female type of changing.

MR. BURT: I'd need to check. I don't think we did.

MS. WILLIAMS: Do you think the rented uniform issue, or uniform issue at all, is one that can be excluded? Is this something you feel is absolutely necessary?

MR. BURT: I'm looking to other people, because, as I said, what I did here was cost out everything someone had listed somewhere as something that might be effective. I don't have much of a view about what is effective.

MS. WILLIAMS: Thank you.

MS. EDENS: If you look at the draft regulatory text we gave you, it does not specify the kind of PPE you would use. What it says, is you use "appropriate PPE."

What we would hold the employer to, is we'd give them some leeway, knowing what their job site is, to pick what is appropriate, just like they would do under the PPE standard now.

You'd do a hazard determination and figure out what kind of exposure you have, and then put in what's right. If you need a whole suit, you put a whole suit on. If you only need a pair of gloves, you only put a pair of gloves on.

What Bob has tried to do, is in some sense he does have to try to figure out or guess what employers might do on a reasonable basis so we don't try to assume everybody's going to be in a rented uniform, although he tried to give you the cost of what that would be if somebody chose to do that.

It may be different things across the board that people might choose, but in order to cost out the standard we tried to make some logical decisions about what we think employers might do so we could cost out what the potential economic impact might be. So, I think what Bob has tried to do is lay out all the different ones.

And where we are looking for input as we go along this process, and it's not just a wet cement issue, it's just any kind of exposure where PPE might be required because of hexavalent chromium, you know, what are the things that are appropriate for certain things.

I mean, he has glasses down here. Does everybody have to wear glasses, or it's only when you're pouring the cement and it splashes up? So, I think that's the kind of divide here.

We're not trying to say what you have to do, but we do have to cost out what the likely impact of it might be. But the standard itself would say the employer gets to choose, to some degree, what they would use in any particular situation.

MS. WILLIAMS: Thank you.

CHAIRMAN KRUL: Bill Rhoten?

MR. RHOTEN: I've just got a couple of questions in that same area with the protective clothing, the changing, and the laundry. The PEL is not set yet for the standard. I guess my question is, how did OSHA determine that the exposure for our welders would reach the level that all this would be necessary in this proposed standard?

MS. EDENS: How did we set the PEL?

MR. RHOTEN: No. Because the PEL is not set yet, but you've already got requirements in the proposed standard that requires any skin or eye contact to trigger in all this, the change room, the laundry, all those type of things. I would like to see the standard go forward.

Our best protection that I can see for our members is to have proper exhaust fans where they're welding to get those fumes away from them. It would be nice to have all these change shacks. But I guess my question is, how did you determine it was necessary to do that, to put this in here?

MS. EDENS: Well, the protective work clothing, most of it is triggered by dermal contact, not the airborne level. So, the respirators would be more the kind of protective equipment that would be triggered by being in excess of the PEL. The draft standard may have, actually, some exposures. I mean, I think in our draft we had, if you're in excess of the PEL, you would have to have protective clothing. That's similar to -- I think cadmium has that in it as well. But the majority of the exposures that trigger PPE, in terms of work clothing, gloves, that's a dermal contact issue. So for welding, it may be that most of that's an airborne issue and not so much a dermal issue, unless they are in excess of the PEL.

Obviously, if the low PEL is considered -- I mean, one of the issues we'll be looking at in the proposal is if we said, in the range we're looking, if we picked five, for example, if you're at six, does that mean there's a lot of airborne exposure that would fall out and create a dermal hazard as opposed to things that are in excess of the PEL, you know, 10 or 20 times the PEL?

MR. RHOTEN: I understand. But, like, right now, our welders come to work every day with a clean shirt on that goes in the washing machine, and they're back at work with them.

If this standard does not proceed on because it's impractical, and you're going to tell contractors that they've got to have a fresh uniform for all the welders every morning and they've got to have places to store their clothes, I guess the point is, I'd like to know that it's really necessary to protect them. Are we going to an extra level here? Are there studies that say that welding fumes under your shirt are dangerous?

MS. EDENS: I did note that we have at least one study where someone has become sensitized after walking by welding. Now, whether they got that from airborne or --

MR. RHOTEN: Yes. But just walking by the welding?

MS. EDENS: Yes. It wasn't the welder himself.

MR. RHOTEN: Right

MS. EDENS: And how long he'd been in that area is kind of unclear on a lot of these things. But I don't know that the primary exposure there of concern is the dermal issue. It is the airborne issue with the welding. The dermal issue is more an issue of the wet cement.

CHAIRMAN KRUL: Yes. We're hopping around here. We're hopping around because we're focused here on the -- we passed out -- Mandie was good enough to update something that was passed out the last time that deals with the entire standard.

We're just taking a chunk right now out of the wet Portland cement exposure. I know where Bill's going, because this is of interest to him when we get to the portion about dealing with fumes just in welding.

MR. RHOTEN: Well, pardon me if I misled you. I was talking about the welding fumes, period, and how the standard is going to affect our welders. Again, when I read it and it says if you have skin or eye contact, then it triggers all of these change rooms and requires contractors to provide uniforms and a laundry room. It gets into the medical monitoring, which might be necessary, too.

But I just would like to know, if the standard is going to require all of this, that it's absolutely necessary, I guess. I'm asking, is it necessary, and on what basis did you decide that welders had to have that?

MS. EDENS: Our initial thoughts, and what we gave you, is the way the personal protective equipment is geared, is that you provide work clothing where there was a reasonably anticipated contact. We know that chromium itself is a dermal sensitizer. We know that people can become sensitized to it.

So, the onus is on the employer to look, and where he thinks he has exposures, if it's a welding fume that he thinks, because of the high air volume of it, is going to fall out and have a lot of deposition on their skin, then they need to provide PPE for those situations.

If that's not the case, then they wouldn't have to if it's a minor welding operation where there's not much coming out, only an airborne issue.

MR. RHOTEN: Well, generally ours is continuous. It's not a matter of a person welding for five minutes. Most of people weld all day in different places. If it, in fact, triggers that requirement, you know, that's nice to have.

I'm just suggesting, I'd like to find out some information that it is really necessary, because if it's not necessary and it's in the standard, it's going to raise some real high opposition to it.

I would like to see this standard, again, go forward, because the best protection I think our members can get is just engineering controls. If it had nothing more than this standard said you've got to supply an exhaust fan, and it's passed, that would be a lot better than where we're at now.

CHAIRMAN KRUL: Yes. Mike Sotelo?

MR. SOTELO: Yes. I just wondered, Mr. Chairman, if we could address the Portland cement thing first and kind of get that by. Can we do that?

CHAIRMAN KRUL: Sure.

MR. SOTELO: Can we categorize this?

CHAIRMAN KRUL: Sure.

MR. SOTELO: Because I'm getting a little confused.

CHAIRMAN KRUL: I'm finished. I won't get in it again.

MR. SOTELO: This report you put out, Bob. Thank you for this. I appreciate this. I don't have a problem with this report. I know that there's going to be some questions coming up, but there are a number of areas here that I think some of the committee members would like to ask you on.

One question I have for the Chair is, is it timely at this point to have some kind of a -- I was just wondering what the committee members feel about Portland cement in construction, and whether it should be in the standard or not.

I know that there was a vote in Chicago on Friday, saying that there was a decision made that we wanted to include it in construction, Portland cement. Or in the standard. Excuse me. Is that the case today? Is it timely for us to kind of get a consensus of where we are?

CHAIRMAN KRUL: It's timely. I mean, I can almost tell you where the votes are going to be split, but that's just a prediction on the Chair's part. But look, keep in mind what Bruce Swanson had said. Everybody gets to vote their conviction here.

What we are going to be doing, is giving our advice to Steve and his standard-setting division and the Assistant Secretary at the head of the Department. Whether we all agree to disagree or not, the vote is going to be the vote. The vote will be to advise, to give our best advice.

So is it in order to take -- I don't want to say a straw vote or a show of hands vote, but I think if you went around the table we could go get a consensus of what people feel regarding the Portland cement issue as the duty and responsibility of this committee. If that's what you would like to do, that is what we will do.

Scott?

MR. SCHNEIDER: Yes. I'd just like to have some more discussion about this before we take any straw votes. I think there's a lot of back and forth. People have their opinions about this.

I think the information that I provided to the committee by e-mail prior to this meeting, there are reports that are in the docket put there by Dr. Rhoutenberg two years ago that are pretty compelling.

I mean, it shows that there's a significant problem in this country with, number one, cement dermatitis, and number two, allergic dermatitis. The costs are very significant, but the fixes are relatively cheap.

As Bill has pointed out so many times to me, he said, well, what we are talking about is basically soap and water. Most people are getting protective equipment, they're getting boots, they're getting gloves.

Some of them have hand washing facilities available as there should be on construction sites, but I think generally the hand washing facilities are not as available as they should be. Hopefully, this standard can help resolve that problem.

I think the bottom line is, as I said at the last meeting, is it is not as expensive to prevent dermatitis on construction sites as it is to prevent inhalation exposures.

You do not have the costs associated with a ventilation system, the costs associated with a respirator and a respirator program, and medical surveillance for respiratory disease.

It is really much simpler and I think it could help a significant number of my members, at least, from what can be debilitating conditions. People that have allergic dermatitis, it can affect them and they may have to quit work because of it. So, I think it is a significant problem that could be solved relatively cheaply.

I think that including Portland cement in this standard really can make a big difference for a lot of people in this country. I don't want to make it into a big -- I don't think it should be a big issue because I think it's a relatively simple problem to solve.

CHAIRMAN KRUL: Mike?

MR. SOTELO: It is a big issue, Scott. There was a vote that was done on Friday in Chicago where there were a lot of the members from ACCSH that were not there.

So, for the record, I was contacted by a number of people saying that ACCSH voted unanimously to include Portland cement into the standard, and that was news to me. But that was my fault. I wasn't able to make the Friday meeting.

It's being construed as an eleventh hour vote. I'd like to get, for the record, just what the standing committee has right now as far as whether they're in favor of it or against it, and who is.

CHAIRMAN KRUL: Well, look. Let's look at this thing from what we're dealing with. It's a struggle no matter how you look at it. Your opinions are your opinions. How do you talk about excluding people from coverage under a standard?

I mean, we can sit here and argue all day about the Rhoutenberg study versus what Bob Burt did. For every study that is produced on one side, you get a study to refute it on the other, I don't care what issue you're talking about.

This is a difficult issue. Steve was kind of enough -- we only have one copy. This whole thing hands under the cloud of this court order. I don't know how you balance one with the other.

We're talking about protections for men and women working in construction versus a court order that has these folks trying to push for an October deadline to get something out. That's a real dilemma for anyone to have to struggle with. I just have to ask you, Mike. What Friday meeting were you talking about, this past Friday? Oh, the last meeting.

MR. SOTELO: Which I was unable to attend.

CHAIRMAN KRUL: Look, if you want, we can go around the table. I can almost tell you how the vote's going to come out. Most of us -- there's a few folks who feel the other way, and that's their right and privilege as members of this committee.

Most of felt that an exclusion from this standard for wet Portland cement took the largest chunk of people, forgetting about dermal versus airborne contamination. It took the largest chunk of people that have potential for exposure to hexavalent chromium and eliminates them from the standard.

Now, especially those of us who represent people in organized labor, that goes directly against the grain of what we represent. The safety and health of our employees and our members is foremost in our mind, and anyone in a labor organization. I know employers feel the same way, but they're approaching it from a different perspective. They're looking at cost/benefit analysis.

So, Scott wants to discuss it some more. If it makes you feel comfortable, we can go around the table. I mean, I'll be the first one to tell you, I was probably the loudest one, as usual, saying that I would be in favor of having wet Portland cement workers covered under this standard. I mean, would it make you feel better if we went around the table and got everybody's perspective right now? Go ahead.

MR. SCHNEIDER: Let me add one thing. I think one of the issues that came up is the question of whether we excluded in the proposal. If it's in the proposal, it will be discussed at the hearings and the rulemaking and then OSHA can look at the record and people can present whatever evidence they want, and then OSHA can make a decision about whether to include it or not. If it gets excluded from the proposal, then it's very, very difficult to change that and to get it back in.

So I think the question was, in part, do we want OSHA to exclude it at the outset in the proposal? I think there was a lot of feeling on both sides to say, well, let's include it in the proposal at least so we're in the ballpark.

We can actually talk about it, present whatever evidence in November or December, whenever the hearings are, and then OSHA can decide. But at least let's not preclude it from happening in the first place. That was, I think, a lot of the sentiment.

CHAIRMAN KRUL: Greg Strudwick, then Mike.

MR. STRUDWICK: Well, the time is very valuable, you know, as far as we're concerned. If there is not the significant exposure, then all of these studies that I've read -- and I didn't go the 100 hours either, but I went a significant amount into the text, and on the job sites, and, you forget, there is some hygiene out there.

It's just not a bunch of cavemen out there pouring concrete. The concrete trucks all have water vessels on them that are clean. Not potable, but they're clean. You can wash.

There are products available where you don't even need the water, okay, in order to keep yourself clean. They do wear full suits, basically long-sleeved shirts. It's predominant in our business to wear a long-sleeved shirt, and the placers that normally are holding the chutes in a concrete situation have gloves on. There's not an awful lot of contact area, other than your face, that's exposed.

So, I think from a practicality standpoint, we need to discuss the exposure of the wet cement, first, like Mike said, and who's willing to spend an awful lot of time on a situation that we feel like is not a serious exposure, based on even what they've said in all these studies. Okay.

So we can spend our time on the pulmonary side of that. I'm not a welder, but I do know that there are some welding fumes that float in the air that have the hexavalent chromium in them.

But I think, to include the wet cement into that standard is going to create a tremendous amount of time that is going to be better spent if there is severe exposure to the pulmonary side.

If we have to address the cement over and over and over, the wet Portland cement, we're wasting our time. So, you know what I feel about this. I think we should be excluding the wet Portland cement.

CHAIRMAN KRUL: Mike Thibodeaux?

MR. THIBODEAUX: It seems to me we've already got a standard, a personal protective equipment standard, that addresses what we've been talking about the wet Portland cement.

As Greg has said, you know, all of his workers, and all of the workers that I see on our construction sites in homebuilding -- you know, I never see them without rubber boots, or gloves, or long-sleeved shirts, et cetera, even on the hottest days of the summer. So, we've already got a standard that addresses this and I don't know why it needs to be included in this one.

CHAIRMAN KRUL: Well, let the Chair just comment on what Scott had said. I don't want to let that go unnoticed. There are studies--admittedly, some of them appearing to be canceling each other out--since that other standard went in.

There is a concern now for the dermatitis and hexavalent chromium exposure with wet Portland cement that may or may not have increased over time.

All Scott is saying is, if we say, no, exclude wet Portland cement right now, OSHA never gets a chance to look at these studies. Nobody gets a chance to add validity to them or subtract validity from them, and saying that they had scientific value.

So we're just saying, include it and let OSHA make their decision when it comes up, if I heard you right.

Steve?

MR. WITT: If I may, Bob. The opportunity to comment on this issue will still be there during the rulemaking whether the proposed regulatory text includes language related to wet cement or not.

If the decision is made not to include it in the regulatory text, it will still be discussed in the preamble. It will still be raised as an issue. All the studies that relate to this will be in the docket and there will be ample opportunity to comment.

Please, I do not want the record to stand with the suggestion that the proposal will be the final. There is still a lot to go in this rulemaking after we publish the proposal, and all the comments, testimony -- as I said earlier, post-hearing comments will be considered in drafting the final. Whether it's in the regulatory text or not, this will clearly be an issue for the rulemaking.

CHAIRMAN KRUL: Greg?

MR. STRUDWICK: One more comment. Correct me if I'm wrong, but I think Amanda referred to the low level of exposure the first time that we were addressing hexavalent chromium on wet cement.

MS. EDENS: It was the low level of airborne exposure.

MR. STRUDWICK: Was it airborne?

MS. EDENS: Yes.

MR. STRUDWICK: I stand corrected.

MS. EDENS: In fact, I mean, there is some evidence to suggest that the chromium does cause an allergic reaction with the wet cement. Obviously, there's also dermatitis that comes from other components of the cement, but there are very low levels that do result in allergic contact dermatitis.

CHAIRMAN KRUL: Scott, before I recognize you, let me ask you, just for the Chairman's recollection, in one of the European countries or Australian countries there's an additive placed in the dry Portland cement that takes the hexavalent chromium down to hexavalent chromium-3.

MR. SCHNEIDER: Yes. This is another issue where there's a lot of dispute in terms of whether this is the best way to go. But in several European countries, they now require that ferrous sulfate, basically, be added to the wet cement to reduce the hexavalent chromium to trivalent chromium.

There is evidence I gave to everybody that shows that this can be successful in significantly reducing the amount of dermatitis, at a cost of about a dollar per ton.

Now, the Portland cement folks here in the U.S. have problems with that process. They don't feel it's as successful, or it's not as necessary in the U.S. There's a lot of things to debate, but that is one way to go.

In the European Union, what they've done is set a limit, no more than 2 parts per million of hexavalent chromium in wet cement. It's not an airborne limit, it's a limit in concrete. So, I guess, presumably, all the European countries are moving towards meeting that goal.

What I wanted to mention, is I did send these around to everybody a month or two ago. But the summary of the studies that were in the docket by Dr. Rhoutenberg said that, based on her estimates, there about 1,700 to about 8,500 cases of cement-related dermatitis each year, and about 1,100 to 5,300 of those would be allergic dermatitis.

So we're talking about 2 to 8,000 cases of dermatitis, and about 1 to 5,000 allergic dermatitis per year. That does not mean, on your particular job sites, nobody may be getting this. But there are a significant number of people around the country that are.

If, as everybody has been saying, everybody they see on their job sites is wearing gloves, is wearing long-sleeved clothing, is wearing boots, to me, then the cost of implementing a standard to protect people is going to be minimal. If everybody's already doing it, then really the cost of including it would not be significant.

CHAIRMAN KRUL: Yes. David Bush?

MR. BUSH: One comment. I did get that from you, Scott, but I also found another report in '95 or '96 that disavowed that and said that the results were not as strong as your source says it. So, these go back and forth all the time. They did extensive tests of adding this, the cost of adding it to the cement, in that it did not always work. It varied with conditions.

Mr. Chairman, I guess my question to everybody on this committee is, we are here to try to advice OSHA on the validity, the necessity, and the functionality of the standards that they are bringing to us that they want to see us use in the industry.

I have a problem when we have a PPE standard, and what I'm hearing and what I see in these statistics is the education of the workers and not necessarily the standards.

There are standards on the books that would require the wearing of personal protective equipment that would keep the dermatitis down, and what we may have is 1,000 to 8,000 cases of non-education construction workers.

The way to solve that is not to pass another standard that covers the same exact basis, does the same exact thing, yet we haven't done a thing about education, folks. This is the vicious circle you get in.

I am amazed that we sit here and spend this much time discussing something that to me is pretty blatantly clear. I agree. I'm like you, Scott. I see that equipment used.

And I don't disagree with your figures of the 1,700 to 8,500, and allergic, 1,100 to 5,500. It's a broad spectrum. So that means there is a great deal of insecurity and uncertainty as to what cases really happened and what they really were.

When you get a variance of about 8,000 percent or 800 percent, it's a little scary for a statistical analysis. But the bottom line is, it comes down to the lack of education.

In other words, do we want to pass another standard, something that OSHA already covers, and if we educated better we probably wouldn't have 1,700 to 8,500? So, another standard does not make the worker smarter.

I'm having a problem here that we're debating one more standard to try to make our workers smarter, and I don't think that's where the debate should be.

CHAIRMAN KRUL: Jane?

MS. WILLIAMS: Mr. Chairman, this is exactly the problem I was having. We have this covered. I went back and looked at several of the requirements in these studies, and the language suggests that if we did implement the PPE standard in the way that it should be and made that the employer's obligation as it is already written, that the 1 in 15, as I highlighted here, and so many others, possibly, would not be there.

So, in that regard I have to say that I would support not putting the Portland cement in at this time, based upon the rational as being presented, why it was being put in, which was only to prevent the dermatitis.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Well, I think one of the problems is we have these standards that exist already. Some of them are inadequate, as the sanitation standard clearly is.

MS. WILLIAMS: I agree.

MR. SCHNEIDER: And so we are sort of paying for that on this end. I think, obviously, the other problem is that there is a lack of enforcement, as OSHA can't be out on every job site. I think the problem is not so much people not having the PPE and not wearing it. I think it is being worn, it is being provided, by and large.

I think the bigger problem, the gap that we have in coverage here, is the lack of clean hand washing facilities and their availability to people on the job site. I think if this standard can make a contribution to that, whereas OSHA is not going anywhere with the sanitation standard, this may be able to help to provide better sanitary conditions for those members and prevent dermatitis. So, that is why I think they could make a contribution, given the inadequacies of the sanitation standard, too.

CHAIRMAN KRUL: Good.

MS. WILLIAMS: Scott, I totally agree. That's why I asked Mr. Lane the comment, was there any emphasis on putting sanitation on the regulatory agenda.

Putting in another standard to say you have to wash your hands is not going to get sanitation in the construction industry, so I hate burdening a standard that should be very clear on what we're trying to prevent with its adoption to achieve something that should be under another standard and enforceable by that standard. You know how I feel about it.

CHAIRMAN KRUL: I was just handed a note. I was going to comment on that field, anyway. But two things. The notion that somebody -- I have to agree with Scott, that somewhere along the line somebody is not doing the things they should be doing.

Because it's easy to say, I go out on job sites and all the people I represent or all the people that work for me all have the correct equipment, all have the correct safety harnesses.

I hear that all the time in the roofing industry, and there are a couple of trades that have the dubious distinction of having the highest fall fatalities, and I'm one of them.

So, everybody is not using what they're supposed to be using. Everybody is not instructing like they're supposed to be instructing or else we wouldn't need OSHA. We wouldn't need a standards-setting division.

There's problems out there and they have to be addressed. They may not be addressed in the way we would all like to see them addressed, but the stark reality is, when you look at it in terms of the human toll it takes in this country every year, there's people that are being hurt and killed out on those job sites. There has to be a way to deal with those numbers.

So the education factor, gosh almighty. I don't care if you're in a union shop or you're a non-union employer, how much money do people spend on Worker's Compensation and liability issues driving the education front?

Those that don't, I don't know how they're staying in business. I don't know how they're staying in business. You guys that deal with that on a daily basis know it better than I do.

We could sit here all day and argue about what we should or should not do, but I think I know what our intention is supposed to be as a committee, and that is to protect the safety, health, and well-being of all construction workers in this country. We can deal with this in a philosophical way or we can deal with it with the reality of what we face on a daily basis.

Yes, Cherie?

MS. ESTILL: This is Cherie Estill, with NIOSH. The way I'm looking at this, is basically, for chrome-6, there are two routes of exposures, there's dermal and airborne.

The way the standard is proposed the way I see it is proposed, is there is going to be a PEL for the airborne portion, or at least for those industries that are covered, and then also those industries that are covered are going to have somewhat of a dermal standard in that they are going to have to be required to have some sort of skin protection. So, those other industries are getting not only an airborne standard, but some sort of dermal protection.

Then because this one industry, the wet cement, happens to have low airborne exposures and high dermal exposures, then they're not included, sorry. They have the opposite of what is easier, I think, to put forward.

So, I think that those workers deserve the same amount of protection and that, through the process that has a lot of checks and balances as far as how much is it really going to cost, then it can be decided whether or not that industry would be protected.

But they ought to at least be protected from the airborne, although that's not really an issue they are well under. They ought to at least be protected from that portion for chrome-6 that is known to cause lung cancer. They deserve at least that much.

Whether or not everybody deserves the dermal, the cost versus what really causes the allergic dermatitis, how much is that a savings of risk, that could be gone through, the whole process, and you could do the economic analysis and all the people will get to have their say.

CHAIRMAN KRUL: Thank you, Cherie.

Greg?

MR. STRUDWICK: I concur with you. The American construction worker deserves every bit of effort on our behalf to be protected out there. Being a contractor and having a contracting background, I want them to have that protection.

Being an employer, I want them to have that protection. I do not want somebody to come up 20 years later after they've been exposed to something that I had something to do with and eliminate all my hard work by taking away the money that I made from my kids and my family.

But we are talking about something that is significantly less a hazard than some of the things that Bob pointed out from the standpoint of falling, struck by, caught in between, and electrocution than the exposure to hexavalent chromium in wet cement.

Not taking away from the pulmonary part, because welders just have exposure that we would not have in wet cement. We have a lot of welders in construction.

But as far as hygiene on site and people taking care of washing, they do that. They automatically do that. In some cases, adding an additional piece of equipment or another part of that Port-A-Can that has some kind of running water or something is not practical.

So, from a practicability standpoint, Bob is right. We need to be concentrating on the safety of the construction worker. If we have standards, just like David said, that already cover the situation and the exposure, then we need to practice the compliance issues in those standards that are already there.

OSHA has done a great job as far as making sure that we have that standard in place, and we, as employers, have to make sure that our accountability goes down the line and we practice the discipline that we are supposed to practice with our own employees to make sure that they are provided with the safety equipment, that they understand how to use it, that they had the education to use that.

I can remember my first exposure to concrete poisoning, is what we called it. It had to do with the lime, and it hurt. Next time, I wore my gloves. So, I concur with everybody in here, but I'm telling you, I think we're wasting an awful lot of time that could be spent a lot more productively as far as this committee is concerned.

CHAIRMAN KRUL: Greg, I'll just disagree with you in one respect. And I don't know what the numbers are. I see the same studies that you're seeing and I can't say that I know what the numbers are.

But just based on Mr. Burt's estimate, I'm talking about over a million workers that have the potential for exposure. We cannot sit as a committee and say what percentage of those workers are going to have whatever is said in these studies.

There is a potential for exposure and dermatitis for these workers. And I don't know how you sit there and say, given what Mr. Witt just said to us -- I can't see the argument either.

I mean, why don't we just advise OSHA and the standard-setting division that we want to include Portland cement? If your argument hold water, it's going to hold water in the end. If my argument holds water, it's going to hold water in the end, because they're going to make the decision, not us.

CHAIRMAN KRUL: Bill?

MR. RHOTEN: I doubt that anything I can say is going to convince anybody over. I just want to say this. I think it's a bad way to start out with the proposed chromium standard, and in the first paragraph, exclude exposure.

Now, there is no good reason to not put this in there and have it settle down so you can argue it, debate it, however it comes out. But it's just a bad way to start out a standard from this advisory committee and then recommend that some exposure is excluded. I mean, there's no good reason to do it. It is just not logical.

Now, you might well not want it in there. You might not want it to pass. But it is sure not logical to suggest to OSHA that they should ignore it right from the get-go in the first paragraph without further debate and some more information. So, that's my opinion. I'm sure that OSHA is going to get two sets of advice from this subcommittee today.

CHAIRMAN KRUL: Jane, then Michael.

MS. WILLIAMS: Mr. Chairman, I don't know whether Mr Swanson or Mr. Witt could answer this. But what was the reason that it was excluded in the first paragraph anyway? What was the foundation for this thought to exclude it? Did your research show they had such a minimal effect, or was it political? What was the reason it was excluded, anyway?

MR. RHOTEN: It probably wasn't political.

(Laughter)

MS. EDENS: We have a fair amount of scientific studies which draw some suggestion that the chromium is responsible for a certain amount of the dermatitis with exposure to wet cement. It is also confounded by a lot of exposure, that a lot of that dermatitis is caused by other things, not the hexavalent chromium.

The debate that has been going on is the same debate we have had here at OSHA about how clear we can show there's a significant risk to the chromium, but we do know that chromium causes some portion of that dermatitis.

As you can see, the kind of discussion you are having, we have had also about the practicality of all of the different kinds of uses of wet cement, whether it's bricklayers, tile layers, laborers, and the whole issue of an already existing PPE standard and issues associated with, what is the right PPE to wear, and how do you clean it, and the kind of changing nature of construction on top of that.

Our initial thoughts--we haven't made a decision, as Steve has said--were, because of the difficulties in construction in particular -- it's not wet cement in general industry. We're not suggesting to exclude pre-cast concrete manufacturing.

We are saying that construction is particularly problematic and the data is somewhat confusing right now, and that we think that, because we have an existing PPE standard and we do have some existing sanitation standards, we could maybe better handle this kind of contentious issue through a non-regulatory guidance effort rather than the chromium standard itself. That was our initial thought. We were getting input from ACCSH, MACOSH, and the SBREFA panel to figure out, what is the best way to go.

So, the reason it's in the first paragraph, is that's where the scope paragraph applies in the regulatory text. It just happens to be, that's where you deal with who's covered, who's not. So, that's kind of how we came to the initial thoughts about excluding wet cement from the regulatory mechanisms, not excluding it from OSHA's concern in entirety.

CHAIRMAN KRUL: Mike?

MR. SOTELO: Jane asked, and you answered it. So, thank you.

MR. BUSH: Mr. Chairman?

CHAIRMAN KRUL: Yes. Go ahead, David.

MR. BUSH: Just one clarification. I think you answered it. We're coming from where Mike is, too. I heard you say that you did look at the fact that there were other standards--in this case, PPE standards--that when you develop a standard, does somebody in OSHA go through and make sure you're not duplicating a standard already on the books, or are you like the Federal Government that has been making laws for 230 years and never eliminated any?

MS. EDENS: Well, I think we looked pretty clear to make sure we didn't have a hexavalent chromium standard other than the existing PEL. But, I mean, obviously a lot of other health standards pull in elements of some existing -- like hazard communication, for example.

We have an existing HAZCOM standard, but many of our specific standards also have training requirements in it, and they also have PPE requirements, and they have respiratory protection requirements.

So, we do try to make them consistent from health standard to health standard. Granted, we've not always been completely successful, but we did look at the fact that we have these other things in place.

MR. BUSH: Okay.

CHAIRMAN KRUL: Frank Migliaccio?

MR. MIGLIACCIO: I'm listening to what everybody's got to say here. I know why I'm here, it's to protect the safety of every worker. Not some, every.

But the one thing you said, Mandie, that surprised me there, was when you said you were debating back and forth in your area, and due to the other standards that are out there, "maybe," was the word you used, you could use one of these other standards to offset that.

The word was "maybe." I mean, it shouldn't be "maybe" at all. It should be, if the PPE standard is out there, it should protect them. Not maybe protect them, it should. And what I'm hearing is, you're not sure if the PPE can protect them.

MS. EDENS: Well, then I misspoke. I am sure that the PPE can protect them. The issue is whether you need to cover them -- is it -- because of the difficulties in addressing wet cement in construction, is it better to let the PPE standard and use some other non-regulatory aspects with giving guidance on specific -- you know, we could develop specific guidance for specific uses in wet cement, you know, something for bricklayers, something for laborers that you can't really do in a regulatory mechanism. It's just -- I can't, you know, account for every different kind of use in the regulation. It has to cost broad-based.

So, one idea initially--and I'd like to reiterate, we haven't made a decision yet--but the early thought was perhaps to use a non-regulatory mechanism to address the particular problems that we seem to be finding with addressing wet cement in a regulatory mechanism.

We would feel more comfortable with that because we do have an existing PPE standard that people should be following--which, yes, they must follow, as Steve points out--in order to -- I mean, there's a lot of things in the wet cement that cause a problem outside of hexavalent chromium that they must be wearing PPE to protect for it now. So the issue is, do you need, like some people see, a hexavalent chromium standard to address that? That's what we're grappling with at this point.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: This is the problem OSHA confronts every time they do a comprehensive health standard in construction or in general industry, which is, basically, they have some generic standards that apply to everybody. They have a training standard in Subpart B, 1926.20, that says everybody needs to be trained about the hazards.

Well, why do they need to put something in this standard that says people need to be trained specifically about the hazards of hexavalent chromium? Because if they're doing a standard on hexavalent chromium, they could just put out a new PEL and say, okay, there's the new standard.

But when you're doing a comprehensive standard, they put in all these additional ancillary requirements, so to speak, to make sure that people have sufficient notice that, number one, people need training and these are the topics they need training on; 2) they need to have hand washing facilities available when they need them, as opposed to the general sanitation standard, which is fairly generic and not very specific.

They need to be provided PPE for dermal exposures, you know, which is a little bit more to the point, specifically when people are exposed to wet cement as opposed to just the general PPE standard.

So whenever you're doing a comprehensive standard, OSHA tends to put all these other provisions in it so that people are put on notice that, yes, these provisions do apply. In some cases, they just merely reference it.

Just for example, in this standard they say, if you are providing respirators, you have to comply with 1910.134 so that people know, it's very clear, they have to do all those ancillary requirements.

So, it's sort of a toss-up. I guess you could argue that OSHA doesn't need any new standards. We have all these generic standards and, therefore, why do we need any new standards?

But, on the other hand, obviously we do, because people are still getting sick and injured and killed. Sometimes these hazards need to be addressed head on by a separate, comprehensive standard.

CHAIRMAN KRUL: All right. Let me ask all the committee members -- Mandie was good enough to revise this on the last page with all the information. On page 6 of her handout, she asked for five specific areas from the committee. Does everybody feel comfortable in the discussion that's gone on? Does anybody want to carry this any further?

(No response)

CHAIRMAN KRUL: Steve, let me ask you, under that scope, if this committee voted to make wet Portland cement covered under the standard, what would raising that issue do to the rulemaking process?

MR. WITT: Let me be very careful in my response. It would be given careful consideration. We would look--and we'll include a copy of the transcript of today's meeting in the docket for chromium--carefully at the advice given to us by the committee, review the discussion and the comments from the individual members.

As Mandie has said, much of what is being said today by those opposed and those for wet cement being included has taken place over the last several months among the team working on chromium.

The decision will ultimately be made by the Assistant Secretary. But obviously we're not bound by the advice from this committee, though we do take it seriously and we will add that to our discussions, add this information to our discussions, to be part of our consideration as we present a draft proposal to the Assistant Secretary.

I would just suggest, since it is advice, the more that people can elucidate or elaborate on that position the more helpful it is to us in evaluating and giving weigh to the advice.

CHAIRMAN KRUL: Thanks, Steve.

I don't see any other way to answer Mandie's first question here. It may be straw vote time. That's going to be the only way to get this issue off center. There's four other issues here, and possibly some more than Mandie does not have outlined here that the committee has concerns over with the proposed standard.

We should do it one by one because this one deals specifically with wet Portland cement and the others deal with specific areas of the standard with regard to airborne exposures. This isn't all wet Portland cement.

Mandie, your five bullet points. How many of those are related to the scope of including wet Portland cement exposures, I guess, is the question?

MS. EDENS: Well, the first one is primarily the one that solely deals with wet cement.

CHAIRMAN KRUL: Yes.

MS. EDENS: But obviously, if you did include wet cement in the regulatory text, that does bring up an issue of exposure assessment. Because once they're under the standard, then they have requirements of assessing exposure, which some people may find difficult to do.

They may say, I know I don't have much exposure, but does it mean I have to go out and do an assessment anyway? Because the way the regulatory text reads, it says, if you're covered, you do an initial airborne exposure assessment.

Now, granted, they could do objective data if they wanted to, but somebody would maybe have to develop some studies so if a COSHO walked in and said, here's my objective data, I only have 2 parts per million hexavalent chromium, there's no way it can be above the PEL. But there still is an obligation on these other things.

So if wet cement gets in, then exposure assessment may become an issue and housekeeping may become an issue. Because they've got wet cement all over their clothes, does that mean they have to have them cleaned, or if it's dry it's not a problem any more? So, other things do kind of come into play. But mostly the first one was just to deal with wet cement, and the other ones cut across the board with everybody.

CHAIRMAN KRUL: That's what I thought. We just wanted to have that clarified. All right.

We've debated this one to death. Let's put it on the record. Yes, Tom?

MR. BRODERICK: I just wanted to make one final comment. It seems like, with this issue of wet Portland cement, the discussion has been all or nothing. When we look at some of the things that were in the economic impact study, the use of the term "uniform," I think the advice that this committee could give could mitigate the economic impact by better defining what PPE we are talking about providing for workers of wet Portland cement.

There may be some tasks that are done by certain trades where they handle it, but the exposure to, say, a brick mason up on a scaffold that is given a relatively small amount of already-prepared Portland cement and they're putting it on a trowel and then laying brick, is going to be a lot different than people who are at the end of a concrete pumper holding an elephant trunk where you've got wet Portland cement in the concrete splashing all over.

So, you know, I've heard people who are on both sides of the argument saying, we're providing boots, we're providing gloves, we're providing eye protection because it's the prudent thing to do.

I think if we could provide recommendations, and I've been on record from our meeting in February that I am opposed to keeping wet Portland cement out of the standard because of the evidence that there are workers who are being exposed to wet Portland cement and they're getting dermatitis from it -- it's frustrating to sit here, knowing that the fix for it is so simple. As Scott said, we're not talking about respirators.

We're not talking about head-to-toe protection. We are really talking about, rain gear would work fine, and that's commonly given out to everybody on the job site, because if it's raining you would like people to stay as long as they can.

I think our guidance could be much more tailored to what the reality of working with wet Portland cement is.

CHAIRMAN KRUL: Before we take this vote, let me, again, put this in context based, again, on what Steve Witt said, and Bruce. This vote will be advice to OSHA and to the standard-setting bureau. The final decision will be made based on everybody in the public sector having a chance for their input in what this standard should or should not include or exclude. I go back to what Bill Rhoten said.

It just strikes me that this committee -- I mean, there's a couple people I can point to that have the expertise to look at exposure limits and facts and figures better than most of us sitting on this committee, but I don't know that this committee as a whole should be making risk assessments, other than to say that there's a potential here for exposure to workers.

If it gets thrown out, if it gets excluded, wet Portland cement exposure gets excluded from the final standard, it gets excluded because a group of people who are eminently more qualified than most of the people sitting on this committee have made that decision based on the evidence presented during the rulemaking procedure.

So for this committee to sit in judgment of whether something should be excluded in construction, I agree with Bill, it almost seems paradoxical to say we're going to have a standard for hexavalent chromium, and the first sentence is going to say, but we're going to exclude coverage for these folks.

I, as a representative of this committee and for the people I represent in the construction industry, just feel like that is diametrically opposed to what I'm supposed to be doing here.

So I don't make the same mistake I made at a union meeting at one time, I'm going to frame the question for a vote in a different manner than it appears in Mandie's bullet points here.

I'm going to go individually and ask you each, as a member, are you in favor of including wet Portland cement in the final hexavalent chromium standard, yes or no?

Scott Schneider?

MR. SCHNEIDER: Yes.

CHAIRMAN KRUL: Frank Migliaccio?

MR. MIGLIACCIO: Yes.

CHAIRMAN KRUL: David Bush?

MR. BUSH: No.

CHAIRMAN KRUL: Greg Strudwick?

MR. STRUDWICK: No.

CHAIRMAN KRUL: Tom Broderick?

MR. BRODERICK: Yes.

CHAIRMAN KRUL: Bill Rhoten?

MR. RHOTEN: Yes.

CHAIRMAN KRUL: Mike Sotelo?

MR. SOTELO: No.

CHAIRMAN KRUL: Mike Thibodeaux?

MR. THIBODEAUX: No.

CHAIRMAN KRUL: Jane Williams?

MS. WILLIAMS: Yes.

CHAIRMAN KRUL: Cherie Estill?

MS. ESTILL: Yes.

CHAIRMAN KRUL: Kevin Beauregard?

MR. BEAUREGARD: No.

CHAIRMAN KRUL: The Chairman votes yes. And we still love you, even after those of you have voted no.

(Laughter)

CHAIRMAN KRUL: I brought a guy up here once that voted against me, so --

Listen, I do not think this exhibits anything more than people's opinion on this committee. It's not meant to be a Hatfield and McCoy issue. I think the final decision is going to rest with OSHA.

It's just a recommendation and advice from this committee to OSHA, and I stand by what I said when I prefaced the vote. I think people much, much more qualified than any of us are going to be making the final decision on this, and we'll have it where it needs to be.

MS. SHORTALL: May I add something?

CHAIRMAN KRUL: Sure. Sarah?

MS. SHORTALL: Mr. Witt has been asking to get as detailed input as possible on all the range of issues, and probably the last comment that was brought up was by Mr. Broderick about ways in which to frame the issue to limit it.

I guess the question would be, in order to assist Mr. Witt, did any of you have comments that would assist them in ways in which to, I think you said, limit the impact of including Portland cement?

CHAIRMAN KRUL: Based on raising this as an issue?

MS. SHORTALL: Mr. Broderick suggested the possibility of limited impact, but no one has provided any specifics. Mr. Witt is saying, as detailed information as we can get will be helpful to the whole decision-making process.

So, I guess it was teasing out information that would be of use to the standard-setting group about specific things that this industry might suggest about ways to increase impact of including Portland cement, if the decision is to include Portland cement.

CHAIRMAN KRUL: Go ahead, Scott.

MR. SCHNEIDER: I think, as Mandie pointed out, obviously, if Portland cement is included, you may not want to require exposure monitoring for Portland cement operations, because we have, perhaps, sufficient information that the airborne exposures are really low, so contractors may not be required to do that exposure monitoring if there is sufficient information to show that it's not significant. So, something like that would be helpful.

CHAIRMAN KRUL: Yes, Jane?

MS. WILLIAMS: Mr. Chairman, I would suggest to Mr. Witt, I had to sit here and think that I am a public representative, and as such, I really think the public needs to be provided as much information regarding the other standards that do have the personal protective equipment.

They may not be privy to that information, so looking at it from my other hat and wearing it as public representative, I think you need to go out of your way to be sure that all stakeholders have the information available to them as to their personal protective equipment and what levels are available in the other standards, and mention those standards.

That way, the public people would have more guidance to choose in making their comments whether they believe, and this other panel, as Bob has said, who would have more qualifications, I think, than all of us sitting here.

But I think it's imperative that you let the public representatives know that there are other standards, what the intent of those standards are, the enforceability of those standards, and what you really feel the exposures would be, or the lack of data for those exposures so the public representatives then making comment to you can do so in an informed manner.

CHAIRMAN KRUL: Go ahead, Scott.

MR. SCHNEIDER: Yes. Along those lines, if you look at this book we just got, if you want to look at the section in Subpart E where they talk about protective standards, I mean, there are specific standards on foot protection --

CHAIRMAN KRUL: What page are you on, Scott?

MR. SCHNEIDER: On page 186. I mean, there are specific requirements for occupational foot protection, for head protection, for hearing protection, for eye and face protection, respiratory protection.

Yet, there is really not a specific standard for protection from dermal exposures in here. I mean, there are generic requirements, but it's not like the specific requirements for eye and face protection.

CHAIRMAN KRUL: Yes, Kevin?

MR. BEAUREGARD: I would just like to say, if the decision is made to include cement, I do think that 1926.95(a) does cover clothing, does cover protection for eyes, does cover all those other things. It may not be as specific as somebody may feel they need to be.

I do know that we have never had an issue of enforcing that in the State of North Carolina when it comes to Portland cement, or any other type of exposure to conditions. But perhaps if cement is included, 1926.95(a), 1926.21(b)(2), and 1926.51(f)(1) need to be referenced.

Those were all standards that currently exist that I do believe can address the use of Portland cement, and one is the training requirement, one is the personal protective equipment requirement.

51(f)(1) is the sanitation requirement. I will say, that is the weakest of the three in the current standard. As Jane has pointed out many times, that was something that has been asked to be addressed previously.

CHAIRMAN KRUL: Okay.

Before we get to the remainder of Mandie's deal, let me ask Cherie Estill. We discussed looking at that SBREFA panel's six points. Do any of those coincide? I don't have that document in front of me. Do any of those coincide with Mandie's?

MS. ESTILL: They do. What I'm looking at is a memo from Dave Jollay and Paul Odom who were construction SBREFA panel members, and they laid out six points. It looks like Mandie has four points here, but they're basically the same.

Initial monitoring of many areas, number one. Number two, was what are the regulated areas? She has that on there. Number three was eating, drinking, smoking. Number four was change areas. Number five was laundering. Number six was the cost of medical screening. So, it's basically these, but there is also medical screening.

CHAIRMAN KRUL: Eating, drinking, smoking.

MS. ESTILL: And eating, drinking, smoking.

CHAIRMAN KRUL: Yes, Tom?

MR. BRODERICK: When you look through the PPE Subpart E, for instance, under applications where you would have -- they have a whole list of pictures of eye and face protection. Then when you go down through the applications, they include laboratory exposure.

Well, the closest thing that would come to wet Portland cement that I can see would be chemical handling. I think people who would look to this document for guidance--and I'm a safety guy out dealing with the superintendents--are probably going to have a go-around about whether or not this is chemical handling, you know.

So, it really kind of doesn't cover a much more ubiquitous activity than some of these other activities, like laboratory exposure. I just think that, absent any reference to the particular exposure we're talking about, given the number of people who are working with wet Portland cement, that having some specificity somewhere makes sense.

CHAIRMAN KRUL: I think you're right, because if you look on page 187 in that last section, 5, Subsection 5, it says, "Table E-1 shall be used as a guide in the selection of face and eye protection for the hazards and operations noted."

Then you get into a semantic discussion like you say, either in court or on a job site, about, is this an all-inclusive application list? If it is, it doesn't apply to what I'm doing.

MR. BRODERICK: The other thing is, if I wanted to argue with my self, I would say, Tom, there's the HAZCOM standard. So, if the HAZCOM standard is being utilized as it was designed to, there would be a data sheet for wet Portland cement and people would be following what's on the data sheet. But the reality is, that is not happening.

What is driving the bus in terms of all the information we've heard about people who are actually using the big yellow boots and giving people gloves with a long gauntlet that are impervious to wet cement, they're doing it because they don't want to keep shuttling people to the clinic to deal with issues around wet Portland cement.

Now, the challenge is, can we isolate chromium-6 as the cause of taking these people to the clinic? I think that's where we're stuck. But, again, I think that we can talk to people who actually work in the trade and have experienced -- look at some additional data, maybe some insurance data that would capture information about where the exposed parts are and just deal with the PPE issue for those particular exposures around wet Portland cement.

CHAIRMAN KRUL: And I think, as you always do from all segments of the industry, but I know personally, the bricklayers, the operative plasterers and cement masons, and certainly the laborers, have a huge vesting in this problem.

I think they have some statistics, some studies, and some personal observations that would be helpful to OSHA in the standard-setting process. Again, I think that is what it should be all about. Let them hear that during the proposed rulemaking and they can make the final decision on what has value and what does not.

Yes, Greg?

MR. STRUDWICK: It would make sense to me, that if there was any comment made about the exposure, that it would start with Subpart Q, which would refer to concrete and masonry, then reflect or refer back to PPE, and make it practical, if that's the way the note is going to be made, that there's some type of exposure issue.

But we go back, when we're excavating we go to P. When we're doing tunnels, we go to S. When we go under concrete and masonry, we go to the standards that are here. So if there needs to be a reference or addendum made to an existing standard, it is a lot easier than to create a new wheel, you know.

So, I mean, it just makes sense to me that if I'm going to be exposed to something that I need to really pay attention to, that we make a note or a reference to it in the standard that it belongs in.

MR. RHOTEN: We could use that logic to reference the welding procedures and just not even call this a chromium standard, you know.

MR. STRUDWICK: It makes it a lot easier to find it.

MR. RHOTEN: If we're going to have a chromium standard, I think, it needs to cover what it's supposed to cover. That's my logic.

MR. STRUDWICK: Well, I think that there needs to be a reference. Otherwise nobody's going to be able to find it. I mean, how many of the concrete workers out there, or contractors, have any idea what hexavalent chromium is? Okay. So, let's make this a lot more simple.

MR. STRUDWICK: This one's pretty easy to read.

MR. RHOTEN: I understand that.

CHAIRMAN KRUL: We tried to get 1910 and 1926 combined once, for those of you old enough to remember it, with the same logic, and it didn't happen.

MR. STRUDWICK: Well, it goes back to the point of the COSHO route there. Okay. Because this is the part that I think that we feel like is really something that we have to pay attention to.

Are we creating a situation that they're going to have a problem with? We already have those kind of problems. To create another one or to make a situation that is not clear is going to create problems in the field as far as compliance is concerned and as far as the way that somebody interprets the standard. So, it does need to be simple. Whatever it is, needs to be simple.

CHAIRMAN KRUL: Okay.

Can we go to Mandie's exposure assessment bullet one and have a discussion on that?

MR. WITT: Bob, would it be helpful if Mandie discussed this a little?

CHAIRMAN KRUL: Yes.

MR. WITT: Gave a little more -- try to help everyone understand what the draft proposal would require and what we're really --

CHAIRMAN KRUL: Absolutely.

MR. WITT: Because it is somewhat complicated.

MS. EDENS: The version of the regulatory text that we gave you has a requirement for an initial exposure assessment. In construction, what we were thinking about doing, is an approach that we currently use for lead and asbestos.

If you're in construction and you're doing certain activities, which we outlined, until you can have time to do the initial exposure assessment, you are to assume that these five activities are in excess of the PEL until you've done an initial exposure assessment and found that not to be the case.

So, for these five activities, you would have to provide, essentially -- you have to assume they're over the PEL and give them appropriate protection. Basically what you'd have to do is give them respiratory protection.

So we outlined five activities. I don't have the text in front of me, but essentially what it was, was welding on stainless steel, welding on a chrome-painted surface. There's three things. Okay. And application of chromium-containing paints or coatings. Abrasive blasting would generally be removing paint.

So, anyway, those activities. The question we're asking you is, is this an appropriate approach to take for chromium? We have it in some other existing OSHA standards.

And if it is, are the activities that we have chosen--and basically we've chosen them because of our initial work on an exposure profile which tells us that these are the activities which are most likely to be in excess of a potential PEL.

CHAIRMAN KRUL: Jane, and then Kevin.

MS. WILLIAMS: Mandie, could you clarify. I just didn't quite get item three. Somebody said something about --

MS. EDENS: Okay. The way it reads in the version we gave you, one, was abrasive blasting of materials coated with chromium. So, basically what you're looking at is probably something like a bridge that was painted with hexavalent chromium paint, or something like that.

The second one is welding, cutting, or torch burning of stainless steel or of materials coated with chromium, or spray application of chromium-containing paints for coatings. So, those were the three.

CHAIRMAN KRUL: Kevin?

MR. BEAUREGARD: I was just wondering, on the construction sites, for the assessment, if you're on a different site or a new site but the process is the same as the previous site, is a new assessment required?

MS. EDENS: Well, we do have, as part of the initial exposure assessment, that the employer can opt out if he has representative data or objective data. So if he's done something very similar before and he feels that that data represents that exposure, or if he has objective data, rather, that shows that that would be the same or that you couldn't get above the PEL, that he could use that. So, he doesn't actually have to do an actual monitoring the way the current regulatory text that you have is laid out.

MR. BEAUREGARD: Thanks.

CHAIRMAN KRUL: And, Mandie, as you said, there are several health standards existing currently that --

MS. EDENS: I believe asbestos and lead have. Isn't that right, Dave? Lead and cadmium in construction.

CHAIRMAN KRUL: And asbestos had that, too, didn't it?

MS. EDENS: I think so.

CHAIRMAN KRUL: I mean, for certain functions.

MS. EDENS: Lead and asbestos is a little bit different, in that they have these categories that they create.

CHAIRMAN KRUL: Right.

MS. EDENS: So, it's kind of a special thing.

CHAIRMAN KRUL: Special. Yes.

MS. EDENS: But lead and cadmium are a little more like what we have outlined here.

CHAIRMAN KRUL: Scott, did you have your hand up for this?

MR. SCHNEIDER: I was just going to point out, I mean, this committee, back in 1980, made recommendations to do just that. I think we worked out this approach basically in the 1980s on asbestos, where we say, look, these tasks, we know, based on the data we have, basically OSHA has done the initial exposure assessment for us, and so we know these are high exposure tasks, so we don't want to put you through the agony of having to do an assessment because you can just start by assuming these are high exposure. I think that makes a lot of sense.

As to whether these three activities are the best or the only ones, I don't know. I'll have to look at the data. But these seem like logical candidates, because we know, whenever you're doing abrasive blasting, grinding, cutting, welding, you do get high exposures, particularly if you're in a confined area. So it seems to make a lot of sense. I don't have any problem with it.

CHAIRMAN KRUL: Anyone else?

(No response)

CHAIRMAN KRUL: Does anybody have a problem at all with the exposure assessment? This will be amazing.

(Laughter)

CHAIRMAN KRUL: Jane?

MS. WILLIAMS: When you're asking an employer to assume the greatest potential, and here you're talking respirators, this could be a totally different argument for the employer who does not have a respiratory program, because typically his functions never required them.

So, you would have to go out and do medical testing and all of these things, assuming that that risk is going to be there, only to find out potentially that it was not there, and that is going to be an economic burden on small employers, if I am reading this correctly.

MR. RHOTEN: And large employers.

MR. SCHNEIDER: But they do have the option, as Mandie was saying -- there's this procedure built in, as there was with the asbestos standard, for people to rely on objective data, so if NIOSH or the Welding Institute, whatever, did a lot of samples and showed that these exposures could not be above the PEL, they can use that.

They can say, well, we don't need to do an exposure assessment. We don't need to provide respirators because we have sufficient data to show, under these conditions, you're not going to get exposure above the PEL. So, they have that option.

MS. WILLIAMS: Then my question to Mandie is, would you have such references in the language that that would be available to help those employers who may not have to go through this regulatory testing issue?

MS. EDENS: Well, the way it's laid out right now, it's just the exemption for the -- I mean, giving them the possibility of using objective data or representative data. We don't actually reference where they would have to go.

Now, I guess an outcome of the standard could be that we could develop those things with alliances and groups to have that information available to them, or the trade industries themselves could do it.

But we have typically not put in -- because this is not an uncommon thing. We have, in all of our standards, representative and objective data being allowed, but we've never referenced where they have to go to get it. But obviously the guidance work that we might want to do as a compliance assistance for this rule is to develop those kinds of materials.

CHAIRMAN KRUL: Bill?

MR. RHOTEN: At what point is the exposure limit going to be set? A month from now? How close are you?

MR. WITT: We are close.

MR. RHOTEN: It seems to me, this whole standard, how it's going to affect us, our welders, contractors, and members, is going to be really around what that number is.

MR. WITT: A decision will be made in the next two weeks and it will become obvious to this committee and everyone else when we publish in the Federal Register by October 4, but it will not be shared publicly until it has completed all of the Department of Labor and OMB reviews.

MR. RHOTEN: Well, you know, a couple of years ago we had his subcommittee. I think we had offered at the time, with Bechtel, to set up a scenario that we could run some demonstrations and take some readings to see where those numbers were within the nation of welders welding. I don't know if we got some of that information. Do you have some of that information? You must have some of that.

CHAIRMAN KRUL: We have exposures from stainless steel cutting and welding.

MR. RHOTEN: All the welding on construction jobs is typically pretty typical. I mean, I used a couple of words together. But, anyway, it doesn't vary that much. So if you've got data on where that level is for a welder welding --

MS. EDENS: We have lots of data on welding. We are constantly seeking to refine our estimates, but we have tried to get as much data as possible to look at the different varieties of exposures.

Now, when you say "welding," maybe for people in that audience that seems kind of simple, but there are all different kinds of welding that go on on all different kinds of surfaces, using different kinds of rods, and they do entail different kinds of exposure profiles.

MR. RHOTEN: Right.

MS. EDENS: We do know that certain types of welding tend to create more, or higher, fumes for hexavalent chromium than some other ones. So, we have a fairly detailed analysis that looks at the variety of kinds of weldings in open spaces, in confined spaces, and the exposures do vary quite a bit depending on where you are.

MR. RHOTEN: Sure. But I'm sure that when you set that number in a week or two, you'll know whether or not that's going to trigger all these other requirements. You have that much information, correct? I mean, you have a pretty good idea what the exposure level is. Okay.

So you already know what the exposure level is for a welder, and then you're going to set the number, so you must have a pretty good idea of whether or not it's going to trigger all these requirements to have to change to clean clothes every day. Rule of thumb, you have to have some idea. Right?

MR. BURT: Well, we've developed a fairly detailed exposure profile for welding by type of welding, and that's what we will use for that. The problem, as Mandie points out, is even when you get down to the level of, here is a welding process, name the specific process --

MR. RHOTEN: Right.

MR. BURT: -- the immediate conditions, what metal you're welding on, all make a difference. So, there's a range in there. So even if I look at a given PEL, I'm finding, oh, some people using this process will be above and some will be below, and it seems to depend on circumstances.

MR. RHOTEN: Right.

MR. BURT: In other words, it's -- but certainly we have estimates of how to look at that. But on the other hand, it's dangerous to say, do welding acts, then it's perfectly obvious you're above or below.

MR. RHOTEN: But when you set this PEL number and decide on what that number is, I would imagine it's going to be a consideration on the actual real world out there of welding, right?

MR. BURT: Yes.

MR. RHOTEN: You're not going to set it to the point that everybody's going to have to wear respirators.

MR. WITT: That's correct.

MR. BURT: Right.

MR. WITT: You can't do it.

MR. RHOTEN: I guess I'm just trying to get an idea downstream of, how close are the numbers going to be to the real world, so it probably doesn't trigger all of these other issues? I guess you won't tell us today, right?

MR. WITT: No.

CHAIRMAN KRUL: Nice try, Bill.

Scott?

MR. SCHNEIDER: On this page that Mandie handed out today, on page 4, under "Thermal Welding and Cutting of Stainless Steel," according to this, there's 60,000 people exposed and half of them would be below 1 microgram per cubic meter. Another quarter of them would be between 1 and 10, and a quarter would be over 10.

So, according to their estimates, that's about where they are. So, if they set it at 1:00, then about half of them would be over. If they set it at 10, then only a quarter would be over, like that. That's their estimates.

MS. EDENS: I would caution you, I was kind of collapsing data a bit to give you a broad picture. So, I mean, that was lumping a lot of things together, so I don't want you to look at that and say, oh, you know, that's pretty simple.

I think you have the materials which break out the exposure profiles for all the different kinds of welding. So, I don't want you to go away with this page thinking it's as simple as that.

MR. BURT: But that page does give you the concept that, yes, it varies. There are people who today at 10, there are people today at 1, there are people today at 0.25, even when you've focused on the same kind of welding.

MR. RHOTEN: But after you decide on what this number is, in order to trigger all these other events, it will have to exceed that number. Is that correct? Do you have a national level below that, or --

MS. EDENS: The current draft, I think, has an action level that I think has --

HOTEN: It's half, right?

MS. EDENS: It would be half, whatever --

MR. RHOTEN: Well, is that necessary?

(Laughter)

MR. RHOTEN: What you're suggesting in the standard is -- I'm almost sounding like a contractor, I think, now. What you're suggesting is, you've got a level whatever it is, and if it reaches half that level, go buy shirts. I mean, set up a clean room.

MR. WITT: Bill, if it's all right, I'd ask Scott to respond to this.

MR. SCHNEIDER: The whole concept of an action level -- and this is something that we debated back in the '80s on the asbestos standard, is that, you know, there is a lot of variability.

You can't always predict that someone will be over the PEL, and even if they're under the PEL, there's a significant chance they may be over on the next day. So what they do, is they trigger some requirements. Not everything, but certainly they say, well, if you're half the PEL, you should provide some precautions, like, for example, training people, and only trigger certain precautions if you're over the PEL.

But even if you're below the PEL but above half the PEL, some of those things will kick in as a precaution because you can't necessarily predict from day to day if you're going to be over. So, that's the theory.

Normally, this is based, in part, on work that's been done. I mean, a lot of the exposure limits, even before OSHA came into existence, included action levels because of that variability in exposures from day to day.

MR. RHOTEN: Thank you, Scott. But do all the standards have those action levels in them?

MS. EDENS: Most of them. Well, most of the substance-specific standards.

MR. SCHNEIDER: Yes. The asbestos standard did not because we set the exposure level so low, they could not measure reliably below that. But if it was set higher, they would have had an action level. But if they do a specific standard on a specific substance, they usually include an action level in almost every case.

MS. EDENS: I think what Scott has not mentioned, is the action level also works, to some extent, for the employer's benefit, that if you get to below the action level, he actually doesn't have to do certain things in the standard, such as periodic exposure monitoring, get out medical surveillance types of requirements. So, it's kind of a carrot, to some degree.

CHAIRMAN KRUL: But we will give you the 60 Minutes reporter award for trying to extract the PEL out of Mandie and Steve.

(Laughter)

MR. RHOTEN: I'm sure it will be logical.

CHAIRMAN KRUL: Okay.

How about, can we just have a show of hands? Does everyone agree with the exposure assessment requirement there that employees have to consider that they are above the PEL for certain tasks and provide appropriate protection, such as respirators, until an initial assessment shows otherwise? This is really almost a common practice on health standards.

All those in favor, raise your hands.

(A showing of hands)

CHAIRMAN KRUL: All right. Twelve zip. So, we agree with that.

Let's do this. Let's break for lunch so we miss most of the crush at noontime upstairs. Be back here around quarter to 1:00. We will stand adjourned.

(Whereupon, at 11:40 a.m. the meeting was recessed for lunch.)

AFTERNOON SESSION

[12:55 p.m.]

CHAIRMAN KRUL: All right. If the committee could back into order. I think we have enough for a quorum here. People will be trickling back in.

For the record, I've been reminded that I sort of went through that without having the Court Reporter take a nominal count of that vote.

On the issue of including exposure assessment to wet Portland cement, the committee voted 7 to 5 in favor of including Portland cement.

On exposure assessment regarding, employers must consider employees exposed above the PEL for certain tasks and provide appropriate protection, such as respirators, until an initial assessment shows otherwise, the committee agreed with it, 12 to 0, unanimously. That's just for the record. Okay.

Mandie, on "Hygiene Areas and Practices," do you want to expand on anything that's there?

MS. EDENS: Not really, unless anybody has a question. The idea there was to make construction slightly different from general industry. General industry says "change rooms" and this says "change areas."

So, the question was, is that an artificial or real distinction? Do people understand that that means something different from what general industry has, and is it even appropriate to make that distinction for construction?

CHAIRMAN KRUL: Bill, that was your issue before, but that was based on the PEL, though. Right?

MR. RHOTEN: Yes.

CHAIRMAN KRUL: How do you feel about "change area" versus "change room?"

MR. RHOTEN: Well, no, I don't.

CHAIRMAN KRUL: Jane?

MS. WILLIAMS: Mr. Chairman, I really believe -- I understand the difference, and it does make a difference economically. But I do think it would be appropriate to make sure it's understood, "segregated change areas, if needed, if appropriate."

If you've got 5,000 guys on the job, you wouldn't need it. But if you do have a workforce of men and women, you certainly are going to have to have a segregated area or face other consequences.

CHAIRMAN KRUL: Having raised the semantic question, let me ask the committee, and employers, in particular. Does "change room" have a different connotation than "change area"? I mean, I'm kind of thinking that there is. I mean, are we talking trailers versus wood construction, polyethylene-enclosed change areas? Would change areas be more appropriate than change rooms, Greg?

MR. STRUDWICK: Yes.

CHAIRMAN KRUL: I mean, if the purpose is to -- with obvious segregation if there were different sexes of workers on the job, I would think that -- would anybody have disagreement that "change areas" would be a better connotation than "change rooms"?

MR. RHOTEN: Why don't you just say "change areas or change rooms"?

CHAIRMAN KRUL: I don't know. Go ahead.

MR. THIBODEAUX: Using change area, that gives the employer the option of how to set this up, so long as it meets within the parameters of what's going to be set out in the rule. I think that would probably be more appropriate than having either/or.

CHAIRMAN KRUL: Yes.

MR. THIBODEAUX: If the employer wants to do a change room, they can.

CHAIRMAN KRUL: Right. I think that's where I was going, is if you same "room," then I think it takes on a whole new meaning for some, not only for the employer, but for interpretation by those who would be compliance officers. Okay.

We would have to take a vote then. We would recommend to OSHA that "change area" be the choice of words. Everybody in agreement on that?

(A showing of hands)

CHAIRMAN KRUL: Anybody in disagreement?

(No response)

CHAIRMAN KRUL: For the record, 12 to zero.

Housekeeping, Mandie?

MS. EDENS: The current draft, the draft we gave you, did not include any housekeeping provisions. This would be things like keeping surfaces free of, basically, dust. I mean, the intent in housekeeping in general industry is because of the dermal contact issue.

You wouldn't want surfaces that could potentially be contaminated with chromium-containing dust to be around, so you do housekeeping to keep surfaces free of that dust. The thinking in construction was that it's just a naturally dusty environment.

It would be almost impossible for some construction sites to keep their sites practically free of chromium-containing dust because they wouldn't be able to differentiate dust that's not chromium from dust that is. So, the initial thought was to not have them do that.

So the question was, is that appropriate? If not, what could practically be done in a construction setting where there might be chromium-containing dusts? If it could be done, what would be --

CHAIRMAN KRUL: Let me just interject on that point. I think you'd have to look at each individual task that you're talking about, whether it's abrasive blasting, if it's cutting or welding stainless steel, or torching stainless steel, or torching chromium surfaces. I don't think there's a general rule you could apply, housekeeping rule you could apply to all those different tasks. I mean, that's my opinion.

MR. RHOTEN: That's my opinion, too.

CHAIRMAN KRUL: Go ahead, Greg.

MR. STRUDWICK: Well, in the surface areas that you're referring to in construction, lots of times, that's the ground, as far as where it settles out. So, I think you're right. I think it's too general, too broad to specify or make any specific recommendation on housekeeping based on the possibility of hexavalent chromium dust being there.

CHAIRMAN KRUL: Yes, Mike?

MR. SOTELO: The only concern I have, is if we keep it general, then it's going to be left up to the interpretation of the compliance officer, and that, frankly, scares the hell out of me.

So, I think that when going forward, we need to make sure that there is language in there that makes it fairly direct, not necessarily -- well, the whole standard. I think we have to be very careful what we put in.

CHAIRMAN KRUL: Well, I'm reading this a little bit different. It says, "Current draft does not require any housekeeping provisions for construction."

MR. SOTELO: Yes. I concur with that.

CHAIRMAN KRUL: So it does not require any housekeeping provisions right now. Our point is, it's so general, that if you just put housekeeping practices in general in there -- I mean, they have to be addressed to each specific task, and I don't know how you'd do that.

MR. SOTELO: Right.

CHAIRMAN KRUL: So what we're saying is, we probably -- if I'm saying this right, now, we probably agree with Mandie's sentence here that there not be any housekeeping provisions for construction, and each specific task will have to be handled --

I mean, if you're going to be including construction in this, it seems to me that, although I know you're looking for guidance on this, it just seems like it's too general a proposition to be looking at housekeeping provisions for all those different specific tasks.

I don't know if I'd be ready to address what housekeeping provisions are necessary for those specific tasks that may or may not involve hexavalent chromium exposure in dust.

MS. EDENS: The way it works in general industry, we say you shall keep these surfaces as free as practical of chromium-containing dusts. In general industry, I guess there's a sense that you have a fairly well-defined process.

You're in a place where you can, if you're -- let's take electroplating. You see electroplating fluid. You don't want to have a surface with a lot of electroplating fluid or the materials used to make electroplating fluid.

You wouldn't want to have those on surfaces. You want to keep those surfaces as clean as possible so that there's no inadvertent exposure to the skin for those things.

So, we wouldn't try to define every situation about how you would actually keep those surfaces free or what different degrees of contamination might be for any particular work task. But there could be a general obligation on the employer to make sure that those surfaces are as clean as practical.

The problem with construction, as someone mentioned, you're out in an environment where you're doing lots of digging in dirt and there's dirt surfaces, so it's harder to distinguish the things that are just dirt because you're building on a site as opposed to a particular activity that you know involves chromium-containing dust.

So the issue would be, are there certain tasks like -- can you say if am welding in a certain area and it's all the fall-out from the welding, can you keep that surface free but not try to keep the entire worksite free, things like that, that was what we were trying to get at.

CHAIRMAN KRUL: Yes. I don't know how you could do that. I think you already answered it. So I'm hearing the discussion that this is an appropriate approach, not to require any housekeeping provisions for construction. Is there agreement on that all the away around?

(A showing of hands)

CHAIRMAN KRUL: Twelve to nothing, Madam Court Reporter. Wow.

Regulated Areas. Here we go. Anything on that, Mandie?

MS. EDENS: No. The way the regulatory text you have outlines, is if you are above the permissible exposure limit you have to establish a regulated area and demarcate it so that individuals without proper protection don't come in, or individuals that need to be in the area know that they need to wear respiratory protection when they're in that regulated area.

The issue for construction is that it's kind of a changing environment. It's not like your typical general industry setting. The issue is, how do you establish regulated areas in a construction environment, and what is practical for construction? What is current practice?

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: I don't see this as being a big problem. Like, for example, if you have a welding area, you're going to keep people out of the welding area. All this means is posting an additional sign, or adding to the signs that are already there, saying, don't come in, there may be hexavalent chromium exposures here, potentially. Or if you're spray painting chromate paints, well, you're going to keep people out of that area anyway.

So, there's got to be some way to keep them out. Usually we would put up some sort of barrier, or tape, or whatever. It doesn't seem to me like that's a big issue.

If we include Portland cement, obviously you'd have to have a different way. I mean, people are going to be kept out of the area anyway so they don't get exposed to wet cement, but it wouldn't be tied to the PEL, necessarily.

CHAIRMAN KRUL: Right. I think, when you look at the asbestos standard, for example, there are construction sites where asbestos removal was going on. Viswing tents, in effect, were set up with a regulated -- that being a regulated area, and then taped off another regulated area that prevented anybody from entering. So, there is precedent for regulated areas, there's no question about it. And they're not that difficult to do, as Scott says. It's very practical.

MR. RHOTEN: I think so, if it's roped off. Now, if you get into tents, you're in a different area. Hopefully they'll come up with some formula that they'll be a certain footage away and you can just rope the area off, and that's not really a problem for anybody. But if we start trying to confine it, you're just going to make it worse for the guy inside.

CHAIRMAN KRUL: Greg?

MR. STRUDWICK: Bill, we rope off what area? What are you talking about?

MR. RHOTEN: The area that might be -- so if a guy is welding in a boiler room and he's over in the corner welding, you'd figure out how many feet away it is, however you do it, and just rope it off. That's all you have to do.

CHAIRMAN KRUL: Have there been studies to date regarding dissipation of fumes and airborne contaminants over a period of feet, or yards, or no?

MS. EDENS: No. One of the concerns that's been brought up is that, if you're in a certain area doing something, how far does the regulated area end up being?

On construction sites where you don't just have one welder, you have welders all over the place, does that mean that what in effect happens is that the entire construction site becomes a regulated area?

How can they do the other parts of construction if they say, nobody else can be in here welding when you have some other person that's trying to do some other activity. So, there's a practical --

CHAIRMAN KRUL: Well, I'll defer to the UA man on this one. But I think welding of stainless steel is going to be an entire job.

MR. RHOTEN: I'm certain you know more about the numbers. I don't know anything about these numbers you're going to come back with, and how far away it's going to be. Hopefully at some point you will have a better on that. I'm just suggesting, it's easy enough to rope off an area, as well as welding it. That's not a problem.

MR. BURT: This was an issue that came up in the SBREFA panel. Let me just tell you what their concerns were so you can know what we're addressing. They were concerned with a couple of different issues. One issue, was just trying to get -- precisely the one we were just mentioning, how do we get how far away we need to keep it? There's shifting wind, shifting situations. What could they do about it?

The other kind of concern was, in some cases, as Mandie said, they might need to cover a very large area, interfering with construction other places.

One that is less of an issue in the context of chromium that has come up in discussions of regulated areas -- let me take an odd case for chromium, a supposed issue, was applying paint on a highway.

Well, what's the regulated area when it's moving down the road? These are some of the kinds of things that came up in the SBREFA panel that made the construction people concerned about how regulated areas would work. I just wanted to give you some background on how this became an issue.

CHAIRMAN KRUL: Yes, Scott?

MR. SCHNEIDER: All the studies I've seen of, like, welding fumes, show that I think the exposures drop pretty quickly. I mean, for example, if you look at exposures to lead, the people that are welding or, say, torch cutting with a long-handled torch versus a short-handled torch, it makes a huge difference. That's like just two or three feet.

So I think, basically, regulated areas don't have to be that large if you're looking at fume dispersion. I mean, for painting operations, that's a different story. But I don't think it's going to be a big problem. I don't anticipate that.

CHAIRMAN KRUL: Go ahead, Bill.

MR. RHOTEN: If you're going to get in a situation where you have exhaust fans, that's going to be taking it away to the next room anyway. It's going to be there. The question is going to be, to what degree it's going to be there. We don't --

CHAIRMAN KRUL: And I think Scott hit on what I was asking you guys, if you had done studies, because I think the ambient air -- the dispersal into the ambient air, when you just get within feet away from the source, is usually enough to dilute -- the dilution factor is exponential, the number of feet that you give away.

Jane, I see your hand up. I'll get to you.

You know, the question is, is it practical in construction to establish regulated areas? I think the answer is yes, and we'll vote on that.

What is currently done, if anything -- I mean, we could certainly participate in a rulemaking process and get you examples of all kinds of regulated areas that are going on in the construction industry without undue cost or burden, I think, to the employer.

Jane, go ahead.

MS. WILLIAMS: Well, I was looking at it the opposite way. I was thinking, if it was so minuscule that it was going to occur, why regulate it anyway and have the effect of somebody just happening to walk by going to another area, and then becoming an exposing contractor. So, why should we even attempt to regulate it if it's not that big of an issue?

CHAIRMAN KRUL: Well, I think it is a big issue because we're talking about the sensitization factor of letting someone get too close to an area. Didn't I hear that earlier, that we were talking about people who had become sensitized?

MS. EDENS: I know we have one setting that alludes to that. I wouldn't want to say that the wealth of data we have suggested that's a common occurrence.

CHAIRMAN KRUL: I just don't think it's that huge. I mean, we're not talking about setting these up all over the job site. I think the worst scenario I can envision is a whole bunch of abrasive sand blasting going on on a chromium paint. Like Scott said, if you get into a spray painting operation, you've got a whole 'nother issue.

MR. RHOTEN: As far as welding, the people don't stand around where people are welding anyway. You're going to get flashed. They've got screens up. They're going to go away and work someplace else and come back later. You're not going to work within 20 feet of a welder, generally.

CHAIRMAN KRUL: Greg?

MR. STRUDWICK: Not necessarily the case in outside construction with underground water installations and those kinds of things where we are actually welding on concrete steel cylinder pipe and we're doing welding up and down the line.

To create a controlled access zone or put up ropes or anything like that creates a problem. So, there are times when we're in the field when people are working around other people, especially with mechanized equipment.

But if there is a line, or a wire, or a cable, or something that could become entangled in the moving equipment, then we could ultimately end up beheading somebody with a cable because a machine drove by.

So, a sign or something like that like we use with our laser beams, those kinds of things that would be a warning that there could be some type of radiation or possibility of fumes that could aggravate an allergy, or you could become sensitive to whatever is being done. It might not be a bad idea, but not some type of a physical barrier set up.

CHAIRMAN KRUL: Let me just reiterate, though. I think the question -- again, I don't think we're talking about specifics. The question was, is it practical to establish regulated areas? We don't know how those areas are going to be established for each particular or specific --

MR. STRUDWICK: Well, all I was trying to do, Bob --

CHAIRMAN KRUL: No. It's an exception. I see what you're saying.

MR. STRUDWICK: -- was give an overview on what happens outside versus inside a building.

CHAIRMAN KRUL: Absolutely. And there are exceptions to how these exposures take place on all different phases of construction. But, again, is it practical to establish a regulated area, regardless of what a regulated area is or how you get it together?

MR. RHOTEN: I think you're going to have to find out how far away from the welder -- in our case, anyway. How far away from the welder before there's a problem. As far as outside with our guys on pipelines, the wind's blowing the fumes. They're blowing them up and they're gone. What's to regulate?

With exhaust fans inside, you're going to have a situation where you've got a welder in the corner who's got an exhaust fan blowing the fumes over here, and we've got a -- I mean, I think it's a little early to try to lay down any rules until you find out what the problem is.

Frank?

MR. MIGLIACCIO: What would be your definition of a "regulated area"?

MS. EDENS: It's an area where you're in excess of the permissible exposure limit.

MR. MIGLIACCIO: Okay. So, like Greg said, a sign saying "Respirators Required In This Area," something like that, would suffice.

MS. EDENS: The only thing the regulatory text says it that the employer is to establish a regulated area, and it gives them the leeway to do that demarcation in any means that they feel can convey the area in the hazard. So, we do not tell them to do it by ropes.

We do say that there is a sign that needs to be posted in a regulated area, but how they post it, where they post it -- I mean, obviously it has to be where somebody can see it. But there's no -- you know, like a door with a keypad, or a rope, or anything. If they want to do that, that's up to them.

MR. STRUDWICK: Well, I just envision a compliance officer walking up and saying, okay, we had a welder working. We're going to cite that because there was a welder's helper standing six feet away who didn't have whatever he needed on, you know, when they weren't above the permissible exposure limit.

MS. EDENS: Well, I guess if the COSHO went in and he sampled the guy that was six feet away and he was above the PEL, he might have some reason to believe that the regulated area extended there. So, it's probably true, what Scott says. It probably does drop off very fast and there might be a very small area.

But if you were to enforce it, obviously, if we wanted a citation to stick, if we'd sampled away from it and that area was very high, then there would be some reason to believe that the regulated area should have extended out to that other individual.

MR. SCHNEIDER: Yes. Practically speaking, that's exactly what will happen. If a compliance officer comes in and samples somebody and their exposure is over the PEL, even though they're not doing that work, then they would get a citation. But what's the chances of that happening? Probably close to nothing.

CHAIRMAN KRUL: Two comments from me. One, nobody stands there and watches a welder weld because of the flash. Two, if somebody was spray painting or sand blasting chromium-containing paint, why would you be standing there watching somebody sand blast if you weren't in full respirator and protective equipment?

It seems to me that we're making a camel out of a mouse here. Is it practical to establish a regulated area in construction? Yes. Are we talking about what that regulated area has to be? No.

I think Mandie hit on it. If it states that only the person who's welding, or only the person who's spray painting, or only the person who's in that operation -- and certainly they have to be in PPE in order to stay in the PEL, that we're not talking about somebody just casually walking through a work area. I mean, I don't want to steer this thing. If anybody feels different, fine. But I think it's --

MR. RHOTEN: I'd suggest, if you're going to have it, the sign would be more than enough. I mean, that's my personal feeling on it. Otherwise it's going to get so complicated, and maybe in this area. People just don't hang around our welders.

(Laughter)

MR. RHOTEN: That's for our part, anyway. On sand blasting, I don't know.

CHAIRMAN KRUL: All right. If we all understand the definition, which is not a definition at this point, we all understand the need for restricting access to these areas and that it's not going to be structures created up on job sites, but really left to the employer's discretion, if you will.

Can we all agree then that it is practical to establish a regulated area in construction?

(A showing of hands)

CHAIRMAN KRUL: Any disagreement?

(No response)

CHAIRMAN KRUL: Twelve to zero. We're getting there, Steve. Okay.

Now, we have to go to the two things that Cherie had said that were in that SBREFA or SER report. Actually, I want to include a third one that Kevin brought to my attention, but let's do these easy to, and then we'll get to the other one.

Eating, Drinking and Smoking. Is this in the regulated area or in the immediate area, or is this in general?

MS. EDENS: I know specifically that it's prohibited in a regulated area. I'm trying to check. Or at least the draft you have says that. I mean, there's a provision in the draft we gave you which says, in situations where the employer allows them to eat on site, they have to keep those as free as practical of hexavalent chromium, and in no case above the action level.

Then there are also some prohibited activities, which are not to eat, drink, smoke, chew tobacco or gum, or apply cosmetics in regulated areas or in areas where eye or skin contact is reasonably anticipated. So, that is what the provision has.

CHAIRMAN KRUL: Yes, Kevin?

MR. BEAUREGARD: There is one above that that's under "Eating and Drinking Facilities." I wasn't sure what exactly this was calling for, but it says, "The employer shall ensure that employees do not enter eating and drinking area with protected work clothing or equipment unless surface chromium has been removed from clothing and hand equipment by methods that do not disperse chromium."

So, I didn't know, if somebody's working on a job, they have to go in the change area to change clothes, go eat, then come back and change. I wasn't sure if that's what that was saying or not.

MS. EDENS: That is what that's saying. And particularly like if you're in an abrasive blasting situation where you have chromium-containing dust, there's the possibility that the work clothing -- you know, some of that could come on their eating surface or on their food or hands, and they would expose themselves through that. So, the sense there would be, you change out of your work clothes and then go to your eating facility.

MR. BEAUREGARD: Thanks.

CHAIRMAN KRUL: So does anybody have a problem with those prohibitions?

(No response)

CHAIRMAN KRUL: I think they're pretty standard for any kind of contamination.

Go ahead, Scott.

MR. SCHNEIDER: I was just wondering. Do we have any information about ingestion of hexavalent chromium and adverse health effects of it, or about the take-home exposure issue? Any information at all on it?

MS. EDENS: I don't know that it's an issue of ingestion that was the reason for the provision. It's more for inadvertent skin contact. We do know that people get ulcerations in their nose and in their ears because of poor hygiene, and obviously having it on their work clothes can exacerbate that kind of issue where they get it on their hands while they're eating.

They're going to their face, so that we know they can get exposure like that. So, it's not so much for me to be concerned about an oral ingestion problem. The second one was the evidence we would have of --

MR. SCHNEIDER: Take-home.

MS. EDENS: Take-home. I don't think we have a lot of information on it. There's all kinds of dust that we know that people take home. There might be some minor information about chromium specifically that people have taken it home and maybe gotten their family members sensitized, but it's more for other things.

We know it happens with lead. We know it happens with beryllium. There's not any reason to suggest that dust-contaminated work clothing couldn't be taken home and being exposed with it at their home as well.

CHAIRMAN KRUL: I mean, on OSHA's part, this is strictly precautionary because it's a known carcinogen?

MS. EDENS: Well, it's a known sensitizer, too. I mean, I don't know that we are suggesting that the evidence would show that they could take it home and there'd be a lung cancer hazard.

It's more from the allergic contact dermatitis issues, where you know that people can become sensitized from other dusts known to sensitize, and take those home.

CHAIRMAN KRUL: Okay.

So are there any negative feelings about prohibitions on eating, drinking, smoking, not only in the regulated areas, but what Kevin pointed out, if a person goes from an exposure area to -- has to go to the change room before he or she goes to an eating facility? Yes, Cherie?

MS. ESTILL: I thought that the SBREFA panel members who suggested that it would take an hour and a half a day per employee to do this changing and washing, I thought that was a little in excess.

I mean, I don't think that it really would take so long for employees to change and wash before they eat lunch and at the end of the day, and maybe before and after breaks, depending on what they need to do then.

CHAIRMAN KRUL: So can we take a vote? All those in favor of the prohibition against eating, drinking and smoking as they are outlined in the proposal?

(A showing of hands)

CHAIRMAN KRUL: Any opposition?

(No response)

CHAIRMAN KRUL: This is going too easy. Twelve to nothing. Or did we have abstentions? One abstention. Sorry. 11:0:1. Okay.

Medical Screening. This might get a little -- what was in there, Cherie, if you would? Just a brief summary for the committee.

MS. EDENS: Sure. It says that employer would be given 30 days before having to have a medical screening for the employees, but then after the 30 days they would need an initial assessment.

I think the thing here was more the cost, the cost of medical screening and whether or not health care providers would have this expertise. It's that many small businesses don't actually have even health care, let alone providing this sort of health assessment.

CHAIRMAN KRUL: Let me phrase this in a fair way to Steve, Mandie and Bob. This always comes up during regulatory cost/benefit analyses. Clearly, it's easier for a larger employer to provide that type of service, and most difficult for a small business entity to do the same. How is that fairly juggled, I guess is the question I'm trying to get to.

Just going back to my statement of, you know, you want to represent all workers. But this, truly, is where the dollars meet the road. If you put that type of provision in a construction standard, or in any standard, how does a small business person deal with that type of cost? And it is considerable. It's not something cheap.

How do the employers feel about it? Let's do this the fair way. Greg?

MR. STRUDWICK: Typically, small or large, if it relates to a construction project that is either negotiated or bid, the item would be recognized on the owner's part, first, and then set up in the bid documents themselves. So, the cost would be passed through to the end user, somehow.

So whether you're small or large, as long as you recognize that item is there, then it creates a flat playing field for everybody. It's when that item is recognized by a large contractor, not passed along to the small contractor, and all of a sudden he has to comply with a standard that he might not have been aware of. That's where the hitch comes.

CHAIRMAN KRUL: Okay.

MR. STRUDWICK: And maybe the small employer is not as familiar with the standards as the large employer. So, it had to do with probably difference between the general contractor and subcontractor. But all of us, if we were made aware of the cost, are able to plug that cost in.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Yes. I think if you look at the proposal, I mean, basically what they're saying is, they have to have a medical exam that includes a medical and work history, a physical exam of their skin and respiratory tract, and any other test deemed necessary.

So, I mean, generally what they're talking about is sort of a basic physical, where the employer is going to ask them to take a little more detailed work history, or exposure history. I don't know.

It seems like anyone who's welding, spray painting, or blasting, this is something they should be getting anyway because they are at risk because they have a number of exposures, not just hexavalent chromium. I would hope that they're getting some sort of annual physical.

As to who bears the cost or how that works out, I don't know. I mean, I think the question is, is their health at risk because of these exposures, and if so, shouldn't they have some sort of medical screening to see if they're having any problems?

CHAIRMAN KRUL: Let me play devil's advocate just for a second, because I've heard this argument made before, not only in the construction field, but in another field.

How many doctors really know what to look for as far as environmental or occupational exposures? I mean, when I go for my physical, my doctor never asks me if I ever welded.

(Laughter)

CHAIRMAN KRUL: I'm serious. I'm not trying to be funny. I'm just trying to play devil's advocate. Having a physical is a good thing if the doctor knows what he or she is supposed to be looking for.

MR. SCHNEIDER: Yes. And that's one of the reasons that OSHA, in the proposal, says that the employer is supposed to give some information to the physician about the fact that this guy is welding and what their exposures may be, and what kind of protective equipment they're wearing, stuff like that. So, there is a requirement that the employer give some basic information to the physician so they know what's up.

CHAIRMAN KRUL: Again, let me play devil's advocate on that point, because I've heard this argument made -- I'm just giving both sides of the story. I'm trying to be fair.

Given that it doesn't happen as much or as often today as it used to, but construction workers are prone to pick up their toolboxes and go wherever they want to go. And especially -- well, not even -- it's in both sectors, both the union and non-union sector.

You go to a different employer, he or she has no idea what you've been doing or where you've been working, and doesn't ask you. He might ask you what you're skilled in or what work you prefer to do, but keeping work histories -- our own members don't keep their work histories.

We tried to do that with the Center to Protect Workers' Rights, trying to get the DOE monies to people. They can't figure out where they've been working over 25 years, and they don't keep a diary. They don't care. I never cared. Couldn't remember from one week to the next where you were working. So I'm putting that out as an argument that you'll probably hear under the medical screening requirement.

Yes, Greg?

MR. STRUDWICK: Well, in the context where one employee transfers from one employer to another, most of us now recommend that the pre-employment physical still be done before they come in, and there are a certain amount of questions that are asked that would relate to that, if you've seen one of the industrial pre-employment physicals, as well as drug testing with DOT, and that kind of thing. So, there are some ways to identify it there's something wrong with that individual.

CHAIRMAN KRUL: Right.

MR. STRUDWICK: We've also had occasions where they've lied on their application, and you get the results of the physical two weeks later, and in the meantime something's happened to this employee that we weren't aware of. So it goes back to the employer, their interview, and their hiring practices, you know, from that standpoint.

And if they are going to be exposed to a situation where they have to wear a respirator, there's an administrator of that program and they will go basically check the volume of the air and create a baseline.

So, some of these industrial doctors that we referred to that do the physicals are pretty aware of some of the exposures, depending on what he's going to do, highway construction, bridge construction, whatever it is.

I mean, as an employer, that's where I send the guy first. I do the interview. We're going to pay for it anyway, so we might as well be very thorough in how we hire somebody. We just don't take them in and say, good enough.

CHAIRMAN KRUL: Bill, a question?

MR. RHOTEN: I guess the question is, when you hire somebody, they take a physical?

MR. STRUDWICK: Yes. A hundred percent of the time. And a drug test.

MR. RHOTEN: That is not actually so in our industry. It's a good idea. We have, as you just mentioned, they don't work on the same job, same employer all year. They might work five or six different jobs a year.

If, in fact, they did work for the same employer, this would fit in like it would in the industry and it wouldn't be to much of a problem.

But the other side of it is, it's going to be triggered at an action level, I guess we talked about before, which is half of the exposure level. This, I would think, is going to trigger this thing to work with almost 50 percent of the welding operation. Just a guess, it's going to be triggered by half of the --

MS. EDENS: But it has to be 30 days or more.

MR. RHOTEN: For our guys, most of our guys that weld, that's all they do is weld. They don't weld one day -- in small shops you might have a guy weld one or two days, and that's generally not with stainless steel. But the people who weld on chrome and stainless steel, I mean, they basically just do that for a living, so they'll be working on it 30 days.

I would assume then, the way this is written, that it's going to trigger this whole procedure to happen in the construction industry and there are just going to be some problems getting it implemented.

CHAIRMAN KRUL: Well, there will be problems. I think everybody's recognized that.

MR. RHOTEN: As far as what they're going to test them for, they can only tell, I guess, in the next day or two if they've had an exposure. It doesn't stay in your system too long. Is that correct? I mean, if you're over-exposed today and the next couple of days they test you -- if they test you a week from now, it deletes itself. Is that correct?

MS. EDENS: I believe that's correct. There is urine testing that can detect exposure to chromium. We had it proposed in this version to have that. But it's not like lead. It doesn't stay around for a long period.

MR. RHOTEN: The same with the other problem we have with manganese. That's the same system there. You could test a guy two days later and it won't show that he's been over-exposed. But I just see problems with it.

I'm not offering any solutions. I'm just suggesting that if it turns out that 50 percent of the people in our industry are going to be going through this medical procedure, it's going to take some logistics to work it out because of the different employers and that kind of thing. I don't think it can be treated like general industry and work.

CHAIRMAN KRUL: Dave Bush?

MR. BUSH: I guess, in looking at this, what I'm seeing is, this is more going to be physical, you know, a medical and physical approach to finding damage. This doesn't talk about -- and I haven't read anything.

It's not like finding drugs in your hair or something during a drug test. Everything here is talking about actually looking for damage that has been literally caused by prior contact, and that may be the --

MS. EDENS: Well, there's a two-fold reason for it. One, is to identify any existing medical conditions that might place this employee at increased risk should they be exposed to chromium, say, if they're already asthmatic from some other reason unrelated to chromium.

Would you want to put that person in a high-exposure job where that exposure might exacerbate an underlying condition? So, that's one reason for good placement.

The other one, the periodic nature. To see if something is going on that is supposed to increase over time, obviously we're not going to -- there's not an early detection system for lung cancer. I'm not trying to say, oh, you've got lung cancer, now you're out. That's not what this is designed to do. It's more for some of the other types of health effects that might be associated.

If people are having ulcerations in their nose, for example, if there's something detected on a periodic basis it would help that employee because you could go back and look and see what they're doing.

You may be giving them all the right PPE and doing everything else right, but this particular employee, maybe they're putting their PPE on wrong. So, going back and checking their work practices for some event that comes up during the year.

MR. BUSH: Where I was going, Mr. Chairman, is that this is going to happen as soon as you put the standard in. In a company of size, it's going to do this whether it's in the standard or not because it's the only way they can protect themselves from preexisting conditions.

So, everything that's here, this would have been put together by the insurance company and it would have worked real well. Our insurance companies tell us, you get to do all this. That's what I'm seeing here.

There really isn't, from what I'm seeing in this and what I've read, a way to say, okay, this person is more susceptible to getting dermatitis than the next person. There is no test in here.

All you can do is say, one, you either have an existing condition, or two, like you said, Mandie, something's going on and we've got to find out what it is.

To go to the point of SBREFA, though, that doesn't help the small employer. This is going to be a cruncher. I mean, medically, we give physicals in our company, too, I was just telling Frank. But we do it because we're self-insured for health insurance.

We don't do it to make sure we necessarily have real healthy construction workers, male or female. We do it because we're ensuring their health, literally, self-insuring them.

So, to get back to the question I think we started on is, this is going to be expensive. Now, if they have insurance, as we hope most companies do, their insurance company, once the standard goes in, will probably tell them, you get to do this, because they don't want to pay. Their Worker's Comp and other people don't want to have to start paying for preexisting conditions that they didn't know about.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: There is one exception that I was just thinking about. You can do allergic testing, basically, of workers to see if they are, or may be, allergic to hexavalent chromium.

The reason to do it is, if you're going to put someone, say, in a situation where they're exposed to, say, wet cement and they might be exposed to hexavalent chromium, they could have a severe allergic reaction. It's possible.

So you could, I guess, as part of your medical exam, screen people and see if you could be putting them at risk, putting them in a situation where they might become allergic, or might be allergic.

CHAIRMAN KRUL: Let me pose a question. Would it be fair to say, if we gave you our advice or recommendation that medical screening is probably necessary for those who would be exposed over a certain level to hexavalent chromium, without -- I mean, that would certainly come out in the rulemaking process on cost/benefit analysis, taking into account small business, and maybe even Scott's suggestion that this could be an either/or, depending on the company.

Would that be fair to say? We could recommend medical screening without detailing what shape or form that would take, because that's going to come out in the process.

MR. WITT: Of course, you can. But if there were any more specific experiences and a better description of the existing programs, that may help us as we review the record later.

CHAIRMAN KRUL: Other than what you've heard.

MR. WITT: Uh-huh.

CHAIRMAN KRUL: Without getting too controversial, would this committee like to take a vote on the medical screening recommendation without specifics added now? Yes, Tom?

MR. BRODERICK: I guess -- I think it's a stretch to require medical screening for exposure to wet Portland cement.

CHAIRMAN KRUL: That complicates things a little bit, doesn't it?

MR. WITT: Is that, in fact, the truth?

CHAIRMAN KRUL: Now we're getting into the apples and oranges thing. I thought, in this context, we were talking about airborne contamination. Is that correct?

MS. EDENS: That's what's being proposed. Medical screens for both.

CHAIRMAN KRUL: Medical screens for both action levels.

MR. WITT: Right.

MS. EDENS: Well, the way it's laid out now, is you are bumped into medical surveillance if you are at or above the action level for 30 more days a year, and you're in an emergency, or you experience signs or symptoms associated with hexavalent chromium, which could be dermatitis from exposure to wet cement.

MR. SCHNEIDER: I would suggest that if this standard covers wet Portland cement, that you're not going to get triggered by the action level. You're not going to get triggered by emergencies. The only reason you would end up going for medical surveillance would be if you had a problem. So, I don't see that that's going to be an issue.

So, I would disagree with Tom. I think if the standard covers Portland cement, the medical surveillance requirements will only kick in for those workers that have symptoms or problems.

MR. BRODERICK: Well, I can agree with that, if we're going to focus it down that narrowly.

MR. SCHNEIDER: That's the way it reads right now.

CHAIRMAN KRUL: And we don't know what those levels are, and we're not going to ask you again.

Yes, Greg?

MR. STRUDWICK: So how can we vote in a situation where we don't know what those numbers are going to be, and includes both of the exposures?

CHAIRMAN KRUL: Well, it's reasonable to assume that the levels are going to fall somewhere into where they had in Bob Burt's second proposal here. You're not going to extract that information from them. I mean, Bill's tried that already.

I don't know that the levels have any meaning, because, as Scott says, the levels were if wet Portland cement is included, and that was just a vote to recommend to OSHA that they include it. We don't know if it will be.

But if it is, the amounts of people that will be covered under what we're talking about here on medical screening would only be if they exhibited some symptoms. That will be a very, very small amount.

What you're really trying to focus on with this medical screening process are those individuals who are in these other categories that were in Mandie's report who would have a higher possibility of exposures above and beyond any levels that OSHA eventually sets as a PEL or action level.

MS. EDENS: The exposure version we had shows that the vast majority of airborne exposures in hexavalent chromium in wet cement are well below the lowest PEL that we might consider.

CHAIRMAN KRUL: That was 1 microgram, was it?

MS. EDENS: No.

CHAIRMAN KRUL: No? I saw George Bush fall for that the other day, and I couldn't get you, Mandie.

Yes, David?

MR. BUSH: I guess, Mandie, I'm confused them. I'm listening to all this. What's the purpose of this? What does OSHA see as the purpose of this medical screening? It's too -- I mean -- well, I'm not going to answer that question. You're going to answer it.

What is the purpose of this medical screening? Why is it in here? Does it exist in other standards? Do you medical screen other standards?

MS. EDENS: Every other comprehensive health standard we've had has had medical screening in it. There's two purposes, as I said before. One, is to identify people who may have underlying conditions that would put them at increased risk if they have exposure to hexavalent chromium.

The other one, is to identify problems that come along. Namely, it's probably more likely to be the dermal problems that you will see, the ulcerations in the nose, chrome holes in the skin, dermatitis, allergic or irritant/contact dermatitis. So, those are the reasons you'd want to know that.

One, is to either get that person out of exposure so that problem can heal, and also, the second one is to go back and look at see what this individual was doing that caused them to get that.

Because you may have an excellent program in place and you think it's working great, but they come up with dermatitis. So, it's a way to go back and check the work practices of this individual, or even your engineering controls, whether or not they're working.

CHAIRMAN KRUL: Okay. Greg, then Kevin, and that will be the last word.

MR. STRUDWICK: Okay. And that's my sensitivity, even on the construction side, is that we don't create a blanket situation, that we do focus on the actual problem. Okay. Whatever task that person is exposed to.

If we don't just create a blanket situation so somebody comes down and says, oh, yes, he's exposed to that welder, so, boom, we're going to cite that. Or, he's got his hand in the cement, so now we're going to cite that. As long as it's focused on the task and the real exposure and it is above the permissible exposure limit, I don't have any problem.

CHAIRMAN KRUL: Kevin?

MR. BEAUREGARD: Yes. I was going to say, as far as medical surveillance, I think it certainly makes sense. But I had a question for the employer representatives. Part of the proposed language says, at the end of the termination of employment you will also do a physical.

Although, again, I think that's a great idea to protect yourselves and the workers, I was wondering if that was going to pose a problem for the employers when somebody has been terminated, whether it's because they were fired or whether or not they decided to go, are you going to be able to get them medical surveillance.

MR. STRUDWICK: Well, and that poses a problem, because a lot of times, in a lot of cases, all you find are their keys, you know, and they're gone. If there's a mandate that we have to test someone when they are terminated, irregardless of what it is, then we have to find them. They have to allow us to do that.

MS. EDENS: There's been a little bit of confusion on that termination exam. It's not OSHA's anticipation that, once someone quit and left the country you'd have to go and chase them down and give them medical surveillance.

It's for people who say, I don't like working in construction or at your site, I'm leaving in two weeks. If it's in your employer/employee capacity to give that before they actually physically leave the site, that's where that exam would take place.

It's not tracking someone down after they've quit or they've gone. It's in the situations where you can anticipate that they're going to leave, and then the exam would be given then.

MR. RHOTEN: If the employee wants to take the exam.

MS. EDENS: Well, the entire thing is based on employees wanting to do it. The obligation is only on the employer to provide it. If the employee does not want to do it, they don't have to do any of it.

CHAIRMAN KRUL: Frank?

MR. MIGLIACCIO: Dealing with a lot of workers, especially ironworkers, they tend not to want to have the physical, before they get there, after they get there, whatever. But a contractor, they feel as though they want it because it protects them.

Like, if you work for company A and you leave company A and go to company B, B wants you to get a physical just to make sure that you're not bringing something that they're going to be held responsible for.

The other thing is, like Greg was saying, and Kevin, also, was a lot of times with the employee, like with us, it's just, get my money, I'm leaving. You don't get two weeks. You don't get two hours. You get, I'm leaving, get my money, send it to me, or whatever.

So, there'd be a problem with that exit. I know there are certain areas, like asbestos, lead. There are certain areas that you do have to have the job physical during if there's exposure, over-exposure, something like that.

But, as was just pointed out here by Scott, this section was less than six months prior to the date of termination, if you had a physical before that. So, they don't need it then.

But, like I said, I think it's harder to get the employee to do the physical because they're thinking they're hiding something, you know, and the employers say, you're going to get this physical if you're going to work for me. That way they're just saying, I'm not going to be held responsible for something that you're coming with from an old company with. But it's a good idea.

CHAIRMAN KRUL: Mike?

MR. SOTELO: I agree with Frank. The construction company that I'm a partner in, I can think, in the 22 years I've worked there, I've never really been given two weeks' notice by many carpenters. So, it could be very difficult.

CHAIRMAN KRUL: Okay. We've beat this up pretty good.

MR. RHOTEN: But the employers never gave us notice sometimes either.

(Laughter)

CHAIRMAN KRUL: That was different!

(Laughter)

CHAIRMAN KRUL: He said, your check's here. Your second check's here. All right.

Without acknowledging that what's contained in that draft proposal is in any way, shape or form the final method of medical screening, can we agree that, like, all health standards that are created, that some form of medical screening will be needed in the hexavalent chromium standard?

(A showing of hands)

CHAIRMAN KRUL: Any opposition?

(No response)

CHAIRMAN KRUL: Twelve to zero, Madam Reporter. Okay.

Here's one that Kevin raised. I'm going to let him -- although I think it is, in general, probably one of the most important things that we saw come out of that SBREFA SER report, and that was the recommendation from those folks that construction be excluded from the hexavalent chromium standard.

Kevin?

MR. BEAUREGARD: I'd just ask Bob if it would be appropriate if we did some type of vote or something to indicate whether or not this group feels that hexavalent chromium should be covered by the construction standard.

I think in the report there was a question as to whether or not separate standards should be issued versus using the same one, and I just thought it might be worthwhile to vote on that.

CHAIRMAN KRUL: Does everybody agree? I don't want anybody to feel like this is being foisted upon them. I think it's a huge issue. We voted on the rest of the stuff to come out of the SBREFA panel as a recommendation, and I think since we're having this committee's input as an Advisory Committee on Construction Safety and Health, that it would be proper to do that as well.

So, let me frame the vote as, do you agree that construction should not be excluded from the hexavalent chromium standard? Raise your hand.

All right. I did a double negative. Should construction be included in the hexavalent chromium standard?

MR. BUSH: Just one question, Mr. Chairman.

CHAIRMAN KRUL: Yes?

MR. BUSH: Are we assuming then that it will go under as the general industry standard, just the way it's written?

MR. SCHNEIDER: The way it's written, it says "for construction." So, this is the construction standard.

CHAIRMAN KRUL: But we're voting, as we did with a couple of things that Cherie brought up, and actually some of the things that Mandie had in her revamped proposal, that were issues that were raised by the SBREFA panel. This is an extra one. It was a recommendation and I think it's fully proper that this committee, as ACCSH, vote to --

MR. BUSH: That's not answering my question. I'm referring back to, like, what the Maritime Advisory Committee on Occupational Safety and Health said in theirs, was it basically has been written for a confined, controllable space.

The question of raising, should there be some separate standards to allow this to be done in open, free-air, uncontrolled areas be dealt with before we get -- or are you going to adjust it for that?

I don't even know how you answered the maritime people. I know that they raised a question with you. I think their last statement was that the PEL is problematic for the shipyards because they do not have the ability to control the site the way factories and other confined areas do.

It said that this rule, as written in the general industry standard, would be a huge change in the way the maritime operation does its work today. I think we're faced with the same, exact problem.

MS. EDENS: What we gave ACCSH, MACOSH, and the SBREFA panel were two regulatory texts. One regulatory text was for general industry and maritime. The second one was for construction, where we pulled out some things that were specific to construction.

So the issue became, should we have three separate standards in one rulemaking, one for general industry, one for maritime, one for construction, so then we could take into consideration in those three separate regulatory texts the things that need to be different because of the difference in work settings? So the issue is, do you have three standards but one rulemaking?

And then another thing that's coming out, SBREFA is maybe a totally separate rulemaking for construction, so that this one that we're engaged in, which has an October deadline, would only have general industry and not construction.

When we started off this meeting this morning, the question you gave to Steve was, what does the court order say? So, that is the issue. Do you have separate standards for maritime? Did they want a separate standard in this rulemaking or do we have a totally different rulemaking to address all their issues? So, those would be the options.

CHAIRMAN KRUL: All right.

Scott?

MR. SCHNEIDER: Yes. We have had such a bad experience with that approach and having separated construction out and saying we'll have a separate rulemaking for construction, because invariably we never get around to it. It's happened on lockout/tagout, on confined spaces, on hearing conservation, on a number of standards.

So, I would recommend strongly that we not separate it out and say, okay, we're going to have a separate rulemaking and construction will not be covered by this rulemaking.

I think that would be a huge mistake because it'll just sit there. OSHA has so few rulemaking resources, that it's just very difficult for it to come back to something like this.

CHAIRMAN KRUL: This is almost role reversal as an editorial. I mean, usually the Building and Construction Trades Department is begging OSHA to get into separate standard setting for construction because we are so unique and different, and they wisely tell us, look, if you do that, you're going to be waiting forever for a separate standard. Take the general industry standard and be happy.

This time, we got just the opposite coming this way. I mean, here's the general industry standard, but the recommendations are coming out that you wait. And Scott's correct. If we wait, we'll be waiting a long, long time to get a separate standard.

I think that's the reason, the underlying reason, not only from a philosophical standpoint of having an exclusion for construction as a recommendation for that panel, and why I think our committee should come out strongly in favor of including construction under this standard. Anybody else?

(No response)

CHAIRMAN KRUL: Having said all that, let me try to correctly state the manner in which this vote is going. All those in favor of including construction, recommending and advising that construction be included in this hexavalent chromium standard, please raise your hands.

(A showing of hands)

CHAIRMAN KRUL: Seven. This vote looks familiar.

All those opposed, please raise your hand.

(A showing of hands)

CHAIRMAN KRUL: Five. The vote carries, seven to five. Okay.

Any other discussion?

MR. WITT: Mr. Chairman?

CHAIRMAN KRUL: Yes, Steven?

MR. WITT: Since you elucidated, I think well, the reason to include construction in this rulemaking, would it be possible for one or more of the five that voted against to state why they think it should not be included, just for our purposes?

CHAIRMAN KRUL: I'm sorry. Would you restate that?

MR. WITT: You stated, I think, very well for the majority why construction should be included in this rulemaking, but five dissented from that vote. Would it be possible that one or more of the five, just for the record, for our information, state why they think it should be a separate rulemaking?

CHAIRMAN KRUL: Sure. Anyone? Any one of the five negative votes?

MR. WITT: All right. I didn't mean to embarrass anyone.

CHAIRMAN KRUL: There could be other reasons.

David Bush?

MR. BUSH: I think the thing to carry from this, is it certainly has nothing to do with our concern over the dangers of hexavalent chromium or the results of over-exposure. It has a tremendous amount to do with the practicality of the application. It has a lot to do with having another standard covering a standard that already exists.

It has a lot to do with, how are you going to define it when you're applying it both to an industry that is totally confined within this work area, and then an industry that literally can be sitting on the high seas working on a ship, which is worse than construction working in a field.

So, you're capsulizing a very critical issue and trying to make it fit all the different feet, and I'm sorry, one size doesn't do it. That concerns me. I don't know that I can speak for all the others, but that would be my opinion.

CHAIRMAN KRUL: David, if you would have just taken the words "hazard communication standard" everywhere you said "hexavalent chromium," you would have been saying labor's response to a "T" when that standard came out. It was a general industry standard that we knew could not, and would not work in the construction industry.

But the realization is, the resources, both human, financial, and the time at OSHA, preclude them from going into those separate industries. We don't like it when they tell us that, but we understand it.

MR. BUSH: Mr. Chairman, I agree. Except we just condoned the creation of another standard when they don't have time to fulfill the standards they have. We agreed that PPE covers part of the standard. So, I mean, you know, you can't have it both ways.

You can't say they don't really have enough people, they don't have enough time, so therefore we can give them another standard, and one of the reasons we have to give them another standard is because they don't fulfill the standards they have. So, you know, that --

CHAIRMAN KRUL: It is a dilemma. But what Scott said couldn't be any truer. If we were to exclude construction from this, you and I would be long gone from this committee and looking at successors far, far down the road who would be dealing with this issue again.

Scott?

MR. SCHNEIDER: Let me just add, when we did this 21 years ago on hearing conservation and construction was excluded from that standard, and now OSHA is hopefully going to put out a proposed rule sometime in the next six months to a year -- I mean, how many people, how many construction workers have lost their hearing in the last 21 years because of that? I mean, enormous numbers.

And there is a standard that requires hearing conservation programs if you're above 90 decibels, but frankly that's not good enough, and that's why they're going to go ahead with this rulemaking. Unfortunately, it's necessary. Unfortunately, it's also 21 years late.

So, I feel a lot of angst about that, and I'm concerned about that. So, I don't want to see that happen again. I mean, having said that, I do want to add, before we move on to something else, Tom and I were talking at lunch.

I think if you look at this rule, and we will, certainly, before the rulemaking hearing happens and look at, if you include Portland cement in this rule, a lot of things really sort of do not apply or will not be necessary.

For example, medical exams are only going to kick in if you have symptoms or signs of illness. Exposure monitoring is not going to be necessary. So, there's a lot of things that would not apply in a Portland cement environment, so I don't think that, really, it's going to be that burdensome to apply it to Portland cement.

I don't know. We probably don't want to get into a big discussion about that here, but I think if you look closely at it and think about how this would work, it would probably be a lot easier to comply with than many people may think at this point.

CHAIRMAN KRUL: Thanks, Scott. Okay.

We have to move on because we've got Subpart V coming up, and we have some folks here that want public comment. We need to keep to the time limit.

Steven, Mandie, Bob, thank you for your candor and for your patience. Do you feel like you have enough direction from this committee, given the --

MR. WITT: Well --

CHAIRMAN KRUL: Don't tell me you want more. I'm trying to move on.

MR. WITT: Yes. Yes. Let me just raise one thing. Are there any other issues, anything we didn't include,anything in the draft that you have, any other issues that you'd like to comment on, either quickly or provide for us before noon tomorrow?

There are a number of other requirements that we haven't touched on today. I want to make sure that silence means there's no further input you'd like to provide.

(No response)

CHAIRMAN KRUL: Well, I could guarantee you, especially on the Portland cement issue, that there are other folks--and I'm speaking not necessarily for labor. Scott can do a good enough job for his folks that he represents there--like the bricklayers and the operative plasterers and cement masons are very, very interested in this issue, and I'm sure they'll be willing to give their safety and health resources for input to you guys.

Yes, Jane?

MS. WILLIAMS: Mr. Chairman, with all due respect, I feel compelled to respond to Mr. Witt and say that the reason I voted as one of the five is because I'm very concerned on stretching the language out when you're talking about contaminated clothing, regulated areas, transient employees, and medical exams.

Those, to me, are issues within the construction community that are very delicate issues, and that is why I would be concerned with that group being under the general industry standard.

MS. EDENS: Well, right now they're not. Right now we have a separate one.

MS. WILLIAMS: Right now.

CHAIRMAN KRUL: Well, thanks again to you guys. We appreciate it.

There's a public comment period. Tom? I'm sorry.

MR. BRODERICK: Before they get away, would it be helpful -- I can't even remember if we have a hexavalent chromium workgroup.

CHAIRMAN KRUL: Yes, we do. We did. Yes. Bill Rhoten, David Bush, Cheryl Estill and Jane Williams.

MR. RHOTEN: But we haven't met in about three years.

CHAIRMAN KRUL: I understand. That's what we're going to be talking about tomorrow.

MR. BRODERICK: As Scott said, he and I had a discussion over lunch about some of the things that could be stripped out in terms of exposure to wet Portland cement, and would it be helpful for us to further develop those for your consideration?

MR. WITT: Tom, if you could do it by noon tomorrow, yes. If not--I'm trying to be practical--we have to move forward to make some decisions and submit this for review.

Yes. If there's anything that you would like to submit to us in addition to what we've discussed or heard today, yes. But if it's not by noon tomorrow, we probably will not be able to include it or consider it as part of the final proposal.

But there will be further opportunity, as we said, a number of times during the rulemaking to submit as individuals, associations, companies.

MR. BRODERICK: Well, I have a lot of respect for the folks who are the opposition's rationale for opposing the rulemaking, and I think that wet Portland cement is certainly a sticking point.

I kind of recoil from the idea that we're comparing that exposure to Bill's guy's exposure when they're doing welding and getting the fumes up under their hood, and that sort of thing.

So, I think we can take away some of the perceived burden on our industry if we make it clear that the regulation does not have to be as restricted for exposure to wet Portland cement because we've already decided that we wanted to recommend its inclusion. So, we will try to get that to you by then.

MR. WITT: That comment is helpful. That comment is helpful, also.

CHAIRMAN KRUL: Okay. Don't go too far, because we're going to get into Subpart V. I think its you and Bob.

MR. WITT: I'm not going.

MS. EDENS: I am.

CHAIRMAN KRUL: Thanks, Mandie. All right.

PUBLIC COMMENT

CHAIRMAN KRUL: This is the scheduled time for the public comment period. I have three, two individuals and one group, that want to comment.

Is Mr. Joe Walker here? He left a message here earlier this morning. Mr. Walker?

(No response)

CHAIRMAN KRUL: He's not here. Okay.

Chris, do you want to briefly give -- Chris Trahan from the Center to Protect Workers' Rights would like to make the committee and the public aware of some of the materials that are available through the center.

Please state your name.

MS. TRAHAN: Good afternoon. I'm Chris Trahan from the Center to Protect Workers' Rights. Most of you know what we are. We do research and training in occupational safety and health issues for the construction industry.

Since the early '90s, we have had a research project under way regarding dermatitis issues related to wet Portland cement. We have several things that the committee and the public may be interested in obtaining. Publications. Well, just a little bit of background.

The research project was initiated at the request of the president of the Operative Plasterers and Cement Masons Union. At that time, the then-president estimated that 80 percent of the members of that union suffered from skin disorders related to their work.

Over the years, we've expanded a partnership that included building trades unions, operative plasterers, cement masons, international associations, bricklayers and allied craft workers, and the laborers' union.

And we also were successful for a number of years working with the Portland Cement Association, National Redi-Mix Concrete Association, as well as NIOSH in trying to move the industry forward in looking at this problem and considering it.

As an outgrowth of that, we developed a training program that is available in Power Point on a CD-rom with an instructor's guide and pamphlets for the worker and the worker's doctors imbedded on that CD-rom.

You can get that by calling me, and I will send out copies of that training program on request. There's no fee for that training program because it was developed with federal grant dollars.

If you requested 1,000, I might ask for shared reproduction costs, but I can send out some copies at no cost. Just give me a call, I'll send that out.

A lot of other documents we've produced are on the ELCOSH website, elcosh.org. They include a book aimed at employers to address the hazard of cement dermatitis. There's also a document that is aimed at safety and health practitioners with very similar information that's in the employer's guidebook.

We have developed a pamphlet aimed at doctors. I think it was just stated earlier that doctors don't necessarily draw the conclusion that an occupational disease is truly occupational.

So, what it does, is it speaks in doctor language to physicians of workers to try and get at the issues of skin-related diseases that they may have going to their normal doctors about.

We've developed a pamphlet on safe glove use, which is also available from me and on the ELCOSH website. We've developed a toolbox talk that employers got that is available. So, all of these training materials are out there and they're free. Please use them. We'll be happy to send out copies of them.

In the last couple of years, we've kind of looked at economic issues. I think most of you got the reports that we generated, with the help of Dr. Rhoutenberg, on economic issues surrounding contact dermatitis, and also on the addition of ferrous sulfite to the cement manufacturing process, which is the ultimate engineering control by removing the hexavalent chromium from the cement in the first place.

But just to let you know, we're also working on a paper, a booklet that will be coming out hopefully in the next couple of months on epoxy exposure, too, to kind of round out our work on skin disorders in the construction industries. So, when that gets done we'll get that up on ELCOSH where you can get copies from me.

If you look at some of the documents we have, we have documented some cases of take-home issues with hexavalent chromium from workers who work with wet cement.

The names and descriptions of the incidents that we have documented have been changed, but it's available in some of those printed documents that I can send out to you. But it can happen when there's allergic dermatitis and family members are exposed to it.

With that, please give me a call. Bob can get you my contact information, or if you want to write down my telephone number it's area code 301-578-8500, and I'll be happy to send out whatever you'd like. Like I say, they are available at no cost. If we have them on hand and they're printed, we will send them out to you. Thank you.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Yes. I was just going to suggest, why don't we get 15 copies for the committee so each person can get a set, and then have the Directorate send them out.

MS. TRAHAN: If you'd like, I can just get copies of everything we have mailed to everybody on the committee.

MR. SCHNEIDER: That's fine.

MS. TRAHAN: If the list is public. If that's updated on the website, we can send it out.

CHAIRMAN KRUL: We can provide you the mailing list of the committee members.

MS. TRAHAN: Okay.

CHAIRMAN KRUL: I think that would be the easiest way.

MS. TRAHAN: We can send that right out to you. You don't have to call.

CHAIRMAN KRUL: Yes, Tom?

MR. BRODERICK: Chris, in your dealings with the Portland cement people and the manufacturers of the cement and aggregate, certainly the discussion must have come up about the addition of ferrous sulfate to their product.

And I thought it was sort of interesting. In the economic impact analysis, we were given the margins for different types of contractors that were anywhere from 2 to 3.5, 4 percent.

Then they slipped in the margin for the manufacturers of Portland cement, and it was something like 12 percent. It was a much bigger number. All they have to do is make the stuff and get it to the job site. We're the ones that have to deal with it once it gets there.

Now, may understanding is that the addition of ferrous sulfate at the batch plant would be a cost in the magnitude of less than 1 percent of the cost that would be passed on.

Did you get any sense from them about what the resistance is?

MS. TRAHAN: They have raised some barriers to widespread implementation nationally of ferrous sulfite to Portland cement. Those are discussed in the documents that I referred to, particularly the "Safety and Health Practitioners Guide" and the "Employers Guide."

The Portland Cement Association, National Redi-Mix Concrete Association were partnering with us as we developed those guides, so we felt it was important to include the barriers without saying if we thought they were real or not.

But some of the things that do come into play is in aging of the Portland cement. Once you add the ferrous sulfite, it changes into a trivalent state of the hexavalent chromium, so that's not a toxic thing for the skin.

Well, upon sitting for some period of time, some of that may just automatically convert back to the hexavalent chromium. So, that was one of the issues. They were worried about shipping it long distances, and then that aging process would render the addition of ferrous sulfite not worthwhile. So, that issue was brought up.

I don't know if we've ever refuted it or agreed with it officially, but that's one of the issues they put out there. So, that was one of the things that we reported in those documents, and there's a few other things that are in there.

There are some structural issues that they brought up. I don't know if they're valid or not, but we did include the issues, the concerns they had, with that process.

But we also included in the documents a lot of things that could be done that are very low-cost and could be job site that we do think affects the concentration of hexavalent chromium on the workers' skin, and they're included.

There's two commercial products I'm aware of that can be used on the job site where running water is not available, but basically soap and running water -- a pH-neutral soap and running water really seem to be the key to preventing occupational skin disease. That's both the pH and the hexavalent chromium content.

CHAIRMAN KRUL: Okay. Thank you, Chris. Appreciate it.

Next up is Jim Tomaseski and his cohorts. Jim is the Safety and Health Director for the International Brotherhood of Electrical Workers. You want to bring your NECA representative and other representative up?

MR. TOMASESKI: Not at this point.

CHAIRMAN KRUL: Okay. That's fine. It's up to you. I knew there was an interest. Jim is here to speak to us about -- Jim is also the Vice Chairman of the ANSI A10 committee, which deals with voluntary standards for construction.

Jim has obviously a vested interest in Subpart V, the power transmission and distribution standard that OSHA will be working on.

He wanted to offer -- well, I'll let him speak for himself. He and I have had this conversation. His folks were in town. He wanted to spend a few minutes with the committee to express his interest in participating and helping OSHA develop this standard.

Jim, welcome.

MR. TOMASESKI: Good afternoon. Thank you. I would want to start out by introducing my friends that I did bring with me, all from the employer's side of the industry: Chuck Kelly from the Edison Electric Institute; Steve Theis from the MYR Group; Steve Kaufman from Hinckles and McCoy; and Wayne Jensen from Red Simpson, Inc.

Three of these folks are from the contracting industry and do construction work directly under the auspices of Subpart V and 1910.269, and the Edison Electric Institute is who owns all the properties they work on.

Subpart V has been talked about for a number of years. The existing standard is over 30 years old. Simply put, we need a new standard. A lot has been going on in the industry, new technology, new work procedures, new work rules, et cetera, through industry consensus standards that have mandated these changes.

The sister standard, if you would, to Subpart V in the general industry is 1910.269. That's 10 years old. A lot of work went into this, a significant amount of work between labor and management.

As a matter of fact, the Agency worked off of a jointly submitted draft by the IBEW and the EEI that was really the basis for the standard that we have today. So we have not only a general interest between labor and management, but the entire industry has a collective interest in getting this standard through.

When looking at the material that went to ACCSH, what's come out of SBREFA, et cetera, what went to SBREFA, there was primarily, I think, just a couple of key issues that we were asked to look at -- you were asked to look at, and I was asked to comment on. The first one was the payment for PPE.

I think, realistically, looking at the standard, looking at 1910.269, looking at the industry and the type of work we do, the issue of payment for PPE was probably a little misdirected, if you would. Because, really, what it's looking at is the payment for FR clothing, which is just one item of PPE that we're associated with in this industry.

CHAIRMAN KRUL: Would you explain "FR clothing" for the Reporter, just what it is?

MR. TOMASESKI: Flame-resistant clothing.

CHAIRMAN KRUL: Thank you.

MR. TOMASESKI: And there's a lot of different, other types of PPE, as I said, that we're associated with in this industry and the standards, 1910.269 and Subpart V, have never specifically addressed who provides it or who pays for it.

It's generally left up to our collective bargaining agreements, and in general we've relied on Subpart I for some direction of how we get the PPE to the workers.

So, I don't think that the IBEW, nor the industry, is particularly directed to ask for payment for PPE in this standard, because I honestly believe it's not really necessary to address it that way, because I don't know how we're going to address all the aspects of PPE.

But from the IBEW's point of view, and I don't know if my industry folks would agree with me on this, but from the IBEW's point of view there's ample evidence that FR clothing could be considered PPE and, therefore, could be taken care of in the traditional way that we have over the years.

I also think that, regardless of how this issue is raised in the proposal, it's going to be subject -- we're going to have hearings on this. It's inevitable that we'll be in hearings. I know it's going to be an issue.

Coupled with that, really, the big issue is the FR clothing requirements themselves. You look at the language that was in the draft, it states something to the effect that "the employer shall ensure that the worker does not receive a second-degree burn on the areas where there are wearing clothing."

Realistically, I think that's probably impossible to do the way that it's worded. I think that there are better ways to state what the intent of the regulation would be.

I mean, we have been dealing with this issue with FR clothing for over 10 years now, and in the current 269 standard there is not a provision for protection from burns from the thermal aspect of the arc.

Basically, the rule requires that if your clothing ignites it can continue to burn, therefore, further injuring you from the arc, that you're getting injured from the burning clothing itself.

So, this is another issue regardless of how this is put in this standard. We're going to be in hearings over this, probably talk more about this in the hearings than anything else in the standard. A lot of work in the last 10 years has gone into better materials, better clothing, trying to put at ease the workers.

The clothing is uncomfortable and it's unnecessary and so forth. We get just as much "bawck" from our members as anybody else in having to wear the clothing, you know, because they're uncomfortable to wear in hot conditions with the temperature and the humidity being up a pole, or down in underground vaults, and so forth, that they can't do it.

You know, we're creating more of a hazard than the hazard that we're trying to protect from. So, we get these arguments all the time, and we're still going to have them regardless of how this comes out. So, this is going to be probably the most discussed issue, I would think, in the hearings in the final development of the standard.

The other issue is the post-employer/contractor relationship. This is a tough one, too. It's probably number two on the list for the hearings. Regardless of what's put in the public draft, we're going to be in discussions on what is absolutely necessary.

You don't see this language in many OSHA regulations. I see it in 119 in the PSM standard for hazardous chemicals. It's probably where this came from. It's an issue that needs to be addressed.

I think the Agency was responding to some requests from the employers that they need to receive information from the host on when hazards are present, what our system parameters, circuit operating parameters so they can make their own determinations as to how to comply with the regulations.

That needs to be addressed. Exactly how to do that, we're in discussion over it, over what's right and what's wrong.

One of the questions out there is, you can write it in a way that will almost mandate liability to the owner. Is an OSHA regulation the right place to do that, is the question. We don't want to force our employers into any unnecessary litigation that we don't have to. That's just an issue that we need to look at.

As I said, it's probably going to be number two on the list for discussion. Regardless of how it comes out in that draft, it's going to need to be worked on. I guess, as I said, those were the major issues that we were asked to comment on.

To conclude, you know, simply put, again, there is a need for the new regulation. We've been waiting for a draft for a long time and we've been working on the issues for an awful long time.

We really don't want to see the process prolonged any more than it already has been. We have put in a lot of work. Most of us in the industry that participate in the industry consensus standard committee work have put a lot of time into there to get that done right.

We think the National Electric Safety Code is a prime source for OSHA to look at to gather the information they need to get their regulations correct. We are in the middle of our revision cycle now to address a lot of these issues that are brought up in the Subpart V proposal. I think we've done some good work on it.

Again, hearings are inevitable. I don't know how many we'll have, how long we'll be in them. It'll probably take a while, you know, to get through these issues. But we went through this in 269. At the same time, the Agency is going to change the general industry standard to match.

The question came out at the beginning, why have two standards? You know, a pole is a pole, a transformer is a transformer. I guess the easy answer was, construction is going to have their own standard, period.

So, we hope that the standards mirror each other as much as possible. The proposal does that. There are some issues that need to be looked at, the difference between construction and the utility work. But I don't think the difference is in how the work is performed.

The equipment is the same, the hazards are the same. How workers access the work is a little different, but basically the work is the same and the hazards don't change if I'm a construction worker or a utility worker.

So, we've been through a lot of this in 269. Those issues were intensely debated for years. Labor and management have worked collectively on these issues for a number of years.

When 269 first came out, there were many issues that were misunderstood or not understood completely on how to comply with some of the new regulations at the time. We put a team together and worked on an appendix to the compliance directive to 1910.269.

It was about a year and a half effort with management, labor and OSHA, working diligently to iron out those problems, and we did. I think we did a hell of a job. So we see the important issues and need to follow that same --

CHAIRMAN KRUL: Okay. Thank you, Jimmy. Your host employer, just as a comment, whether it's OSHA or any of the national agreements we have, the real world dictates that you're a guest on an owner's property.

And it doesn't matter whether it's written in an OSHA standard, or it's written in your collective bargaining agreement, or it's written in a national agreement somewhere, when you're on that owner's property, you're a guest. I understand what is attempting to be done here, but I am also being a devil's advocate for the owner.

He's being advised by probably one or more attorneys, the liability issue, the secrecy issue and protection of whatever. It is a difficult deal. We're trying to work something out that abates or eliminates hazards. But, again, you're a guest in their house and that's where the difficulty comes in.

On PPE, I know payment of PPE, you're coming at it from a different perspective with the fire-retardant clothing. You're probably right. In hot and humid instances, I'm sure most of your members probably wouldn't even want to wear it, because it is difficult to wear. I've had this discussion with several of the labor guys on this committee.

It's just a personal ax of mine to grind to make workers pay for PPE. It kind of goes along with what Greg was discussing during the discussion we had on hexavalent chromium. That should be a pass-along for work, especially when it's mandated clothing or mandated PPE.

I know OSHA feels a little bit different about it, but I don't, because I remember what it was like to be an apprentice and making 40 percent, a journeyman's scale, and having to cough up seventy or eighty bucks for PPE.

I never thought it was fair then, and I don't think it's fair now. Again, I know it's a different issue, but I'm just stating that for the record. I don't believe that employee payment of mandated PPE is a fair proposition.

Questions from the committee? Yes, Kevin?

MR. BEAUREGARD: I don't have a question. I just want to remind the Chair that there are some states that have OSHA programs that require payment of PPE, like North Carolina.

CHAIRMAN KRUL: Thank you, Kevin. I appreciate that.

(Laughter)

CHAIRMAN KRUL: God bless North Carolina.

(Laughter)

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Yes. I just want to point out, I mean, there are other OSHA regulations that put requirements on the owners. For example, on the asbestos standard, we say that the building owner has a duty and responsibility to inspect their building and look for asbestos and to communicate the presence of any asbestos to the contractor before they start work, and that, you know, would go in the bid.

So I think there is a role, and there is an important role for owners to play in protecting the health of workers that are coming on their property. We see that all the time. Whenever the owner takes an interest, and an active interest, the job runs a lot safer. I think it's perfectly appropriate, and there is some precedent for OSHA to step in there.

CHAIRMAN KRUL: Yes. I'm not from the industry so I'm not going to debate it. But I do know, having spoken to Jim, that there are issues on the part of the owners in the electrical power distribution industry that they feel precludes their giving that information out to whomever. But I'm just stating that for the record.

Anyone else?

(No response)

CHAIRMAN KRUL: Jimmy, thank you.

MR. TOMASESKI: Just one comment.

CHAIRMAN KRUL: Go ahead.

MR. TOMASESKI: When you're talking about this communication between the owner and the contractor, there are some problems out there and the problems need solved. But I don't really think that there's a need to go overboard with it, either.

There's reasons why the utility companies hire contractors to do jobs, and some of those reasons include, you know, they've never performed the job before, they don't have the expertise to perform the work, they don't have the equipment, they don't have the trained personnel, and they're not going to do that if the job only has to be performed once or twice every 10 years. So, there are specialty contractors out there.

To be able to really be fully engaged in the job in some of those cases is, I'm not going to say impossible, but it may not be practical for the utility to do that, because historically that's what we've hired contractors to do, is to do that specialty work. But there are other instances, also.

So, the issue definitely needs addressed. I mean, we're not saying, don't include something in the standard, but we really need to take a look at this industry and how it will work, and how it affects this industry.

CHAIRMAN KRUL: Okay. Thank you very much. Thank you, guests, too, for coming and participating.

MR. TOMASESKI: Sure.

CHAIRMAN KRUL: All right. We're scheduled for a break. Why don't we make it 10 minutes so we can get through the Subpart V, and then Noah can do his presentation on the cranes and derricks negotiated rulemaking, and we can get out of here on time today.

(Whereupon, at 2:35 p.m. the meeting was recessed.)

AFTER RECESS

[2:50 p.m.]

CHAIRMAN KRUL: Would members of the public please take your seats so we can get going?

I've got a couple of brief announcements. Michael Buchet has told me that there's a sign-up sheet in the back for anyone who would like to leave their e-mail address, telephone number, who would like to be on the mailing list for any of the materials that come out from ACCSH.

Secondly, Mr. Joe Walker is not here. He wanted to participate in the public comment period and he gave us information. He wanted 30 seconds of the committee's time.

He is the editor for the International Safety Equipment Association's newsletter called Protection Update. What he would like to do, is offer free subscriptions. I actually have a free subscription as well for this already. For those of you interested in protective equipment, it's probably a good thing.

I'm going to give you Mr. Walker's phone number, and if you'd like to receive his newsletter, that's what he asked. I think we can do that for him. It's area code 703-525-1695, or 703-583-7868.

I can't remember if I mentioned this before. Steve Witt has given me a copy of the court order. We only have one copy. Somebody had asked for the court order regarding the -- do we want to do that, have this copied and entered into the record?

MR. WITT: Well, since the question was raised this morning as to what the court had ordered us to do and what deadlines we had to meet, and there was a short presentation by Claudia, and I made some comments.

Claudia was actually commenting on that, not necessarily reading that or sticking strictly to the language of the court. And I thought, for purposes of the record, it would be helpful to have the actual court language.

CHAIRMAN KRUL: Okay. We will do that, on counsel's recommendation. It's up here for anybody who would like to see it. Okay.

SUBPART V - POWER DISTRIBUTION AND TRANSMISSION

CHAIRMAN KRUL: We are on Subpart V, Power Distribution and Transmission.

MR. WITT: Thank you for the opportunity to continue my day with the committee.

CHAIRMAN KRUL: We'll be kinder and gentler.

MR. WITT: With me are Dave Wallace, the Office Director responsible for Subpart V, and Brad Hammock, the Solicitor's Office's representative who is working with us on this rulemaking.

We had the opportunity, I think twice in the past, to discuss this rulemaking with the Construction Advisory Committee. Today, we are formally--as formal as we get--asking for your input and your advice. We are moving forward to publish a proposal on Subpart V.

I'm pleased that we've progressed to this date, to this point in time, and we will be able to move forward. We do want your input, as we did earlier today, on chromium.

Brad and Dave have a few things that they'd like to say about this, and we'll be seeking whatever you have for us today. We'll be happy to respond to any questions and react to any comments that you have, with the idea of seeking advice from the committee.

MR. WALLACE: Okay. The memorandum you should have gotten from Bruce basically says just about everything. I'll try to summarize it, briefly.

OSHA's proposal to update Subpart V -- Subpart V, as Jim Tomaseski noted, is over 30 years old. It was promulgated in 1972. It's one of the few OSHA standards that's been around longer than I have, or been with the Agency longer than I have.

We've taken the general industry maintenance standard from 1910.269, which was promulgated in 1994, and we've tried to move many of those requirements into Subpart V to update it.

We've also included some new requirements or updated requirements on training, host employer contractor provisions, flame-resistant clothing, and the last major thing we're doing is we're taking the electrical protective equipment requirements that are currently in Subpart V and we're updating them to match the general industry standard in 1910.137, and we're moving them basically up so that they're applicable to all of construction, not just for electric utility work.

We went through the SBREFA process in spring and early summer of last year. As a result of the SBREFA process, we had a SBREFA panel report that made several recommendations. We're asking you for your advice specifically in a couple of areas.

One of those areas would be the host contractor provisions. We're asking you for your advice as to, assuming we address host contractors, the host contractor relationship, what should be the content of those provisions? We have got several things listed here for the host employer.

Basically, should we adopt requirements for the host employer to evaluate the safety performance of contract employers, inform the contract employer of hazards the contract employer might not be able to recognize, provide the contract employer with relevant information about the host employer's installation, report observed violations to the contract employer, and follow up to ensure correction of reported violations?

We would also like your recommendations with respect to requirements for the contract employer to instruct each of his or her employees in the hazards communicated to the contract employer by the host employer, inform the host employer of unique hazards posed by the contract employer's work, and any unanticipated hazards found during the course of work, and take measures to ensure that his or her employees follow safety-related work rules required by the host employers, and, lastly, inform the host employer of measures taken to correct any violations reported by the host employer and to prevent their recurrence.

The second area we're specifically asking your input on is the clothing requirements or the requirements for protection from electric arcs. Specifically, should the proposal include a requirement for the employer to assess the hazards posed by electric arcs and to provide appropriate protective clothing?

B) Provide additional guidance to help employers comply with any requirements related to protecting employees from electric arc hazards. C) Permit employers to reduce protection when other factors interfere with the safe performance of the work.

For example, severe heat stress, after the employer has considered alternative methods of performing the work, including the use of live-line tools and de-energizing the lines and equipment, and it has found those alternatives to be unacceptable.

We have also provided you with links to the SBREFA panel report, to the draft standard that we gave the SBREFA panel, and to the other materials that we provided the SBREFA panel so that basically we've given you everything that we gave the SBREFA panel, and we've also given you the report from the panel itself.

MR. HAMMOCK: This is Brad Hammock from the Solicitor's Office. This is one of those great times where I don't have anything to add. We've trained our client well. They've done a great job.

We'd just like to thank the committee for taking the time. I know you all have been very busy with hexavalent chromium. To take the time to look at this and give us your recommendations, we very much appreciate it.

CHAIRMAN KRUL: Who's first? Yes, Kevin.

MR. BEAUREGARD: I'd like to comment on the first question that was asked of us having to do with whether or not this construction standard should mirror or be similar to the standard in general industry. I'd like to wholeheartedly say, yes, please.

Having dealt with both the general industry and the construction standard in this area, it sometimes is very difficult when you've got two different sets of requirements or two different sets of standards that may similar things, but not the same things. A lot of people in the industry work both side of the fence. They work construction and general industry. So, I'd like to see the same language.

CHAIRMAN KRUL: Jim, if I can point to you, that was basically what you were saying, is have them at least dove-tail somehow, because the hazards in the work, they're saying there might be a different process.

I don't see too many hands up here. Regarding this host employer thing, I know there are no electrical contractors on this committee, but, in general, how does the employer faction feel about a standard -- though, as Scott pointed out, the asbestos standard has the authority to mandate that.

How do you feel about mandating? As Jim Tomaseski had said, it's a very contentious issue right now between the IBEW, the elders, and the contractors. I mean, am I sort of muddle-headed in my thinking that most hosts are owners who really don't want you telling them what to do, or do not want, for whatever reason, liability or otherwise, advice of attorneys, that they do not want to have these types of restrictions put on them that is being contemplated in Subpart V? Greg?

MR. STRUDWICK: Could you clarify "restriction"? From the owner's standpoint -- and I do some business with some area groups. I didn't hear a lot of problem with what was stated earlier as far as trying to get the subpart mobilized and revised. Okay.

I don't hear a lot of difference in our contractors that are exposed to overhead power or the hazards associated with that exposure, or the personal protective equipment, or anything. We don't hear a lot of problems.

CHAIRMAN KRUL: Well, I think maybe in this -- and I'm going based on the conversation I had with Jim a couple of days ago. In the power distribution and transmission, basically in these utilities, that what we're talking about, Jimmy, is it not, that they're either for purposes of secrecy or they just don't want your contractors to know what's going on, particularly if they don't want to get involved in the hazard recognition.

I'm looking your way for help. Please come up to the mic, though, here.

MR. TOMASESKI: I guess there's several different reasons, several different things that happened with the work. As I stated before, some of it is work that they've never been associated with, and, therefore, how do you really communicate the hazards and all the associated information when you're not familiar with it?

But, on the other hand, from the contractor's side, what we've been told that happens regularly, is they ask for information and they don't get an answer. But it's not regarding the entire job. It's like some preliminary assessment so a job hazard analysis can be performed. They're not getting any information.

So, at least from a start, you know, this communication process needs to be identified. A protocol needs to be identified, I think, where you're going to get -- the contractor is going to get the information they need. I think that's really where this all started. I don't know if that helps with what you're asking.

CHAIRMAN KRUL: Well, I'm lost because I'm not familiar with your industry at all. I'm trying to understand why, even having said what I said when you gave your presentation that it's an owner's house and basically they can do whatever they want.

I'm trying to understand, in an attempt to address some hazards that are really specifically unique to your industry that you wouldn't find out in any other -- yes?

MR. WALLACE: If I can help here.

CHAIRMAN KRUL: Yes.

MR. WALLACE: I think part of what the proposal has in mind, one of the things in the draft proposal is for the employer to assess the electric arc hazards for the work.

CHAIRMAN KRUL: And by the employer, you mean the contractor.

MR. WALLACE: Well, if the employer is the contractor, it would be the contractor who has to do that.

CHAIRMAN KRUL: Right.

MR. WALLACE: In order to perform that assessment, the employer--the contractor, in this case--needs to know certain things about the electrical system.

They need to know not only the voltage involved, but they need to know the maximum fault current that the system is capable of carrying, and the clearing time. In other words, how long will it take the system -- the system is protected by over-current devices, those, or other forms of protection.

Those devices would open the circuit. In order to know how much energy I can have in an arc, the employer, the contractor needs to know, how quickly can that protection system open the circuit and clear the fall?

With that information, the contractor can perform his own or her own hazard analysis. That's kind of what the proposal, the draft here, is getting to, trying to get the host employer, the utility, to provide that information to the contractor. Understandably, most utilities, when they're doing the work, they have to do their own hazard assessment.

They really basically have already gone through this process. They are not, probably on the advice of legal counsel, willing to provide the results of their hazard assessment to the contractor. In my mind, that's understandable.

The draft proposal would not require that part to be given. But what we would expect is for the host employer to provide the information to enable a contract employer, the contractor, to perform its own hazard evaluation, its own hazard assessment. Does that help?

CHAIRMAN KRUL: It does.

Jimmy, go ahead.

MR. TOMASESKI: That's one example. I mean, there's other situations too where similar information is necessary, like for personal protective grounds, as an example.

You need to have circuit information, fault circuit information, et cetera, because you design your grounding scheme and the capacity of all the equipment based on the information you receive. So, there's other examples also.

CHAIRMAN KRUL: So, you clarified it a little bit. But OSHA would be, in this proposed Subpart V --help me out again. OSHA would be saying that, for certain circumstances, this host employer--meaning the owner--would be mandated to give certain information to the contractor/employer?

MR. WALLACE: That's right. That's what the draft says. Currently, what the draft you have says, basically, is it's intended to require the utility to provide the contractor with enough information that the contractor can perform the assessments required by the standard and provide the protection for its employees required by the standard.

CHAIRMAN KRUL: All right. Let me really put you on the spot now, because you obviously have more expertise in this than myself, and probably everybody else, except Jimmy, sitting around this table.

In the sphere of health and safety, do you feel that any objections or resistance on the part of host employers to giving the information to the contractor regarding the safety of his employees is proper?

Is that resistance of his -- and regardless of where he gets his advice or information from, given the fact that the object of this standard is to protect the health and safety -- as I said, I'm putting you on the spot. You've been dealing with this. Do you feel any of that reluctance or resistance is justified?

MR. WALLACE: To the extent that a utility would be substituting his judgment in terms of -- in other words, the utility would say, I've done this hazard assessment, this is the result. That concern might be justified.

On the other hand, the raw information, the information that the contractor needs to perform its own hazard assessment, I don't think there's any justification for not providing that information to a contractor, at least not from a safety and health standpoint.

CHAIRMAN KRUL: That answers my question then. Thank you.

Greg?

MR. STRUDWICK: It's similar to the confined space entry requirements, host employer, employer/contractor responsibility, very close to what I'm hearing.

MR. WALLACE: Yes. I was involved in the general industry standard, so there are some in there.

MR. STRUDWICK: Okay. So that's where I'm hearing that come from.

In the underground industry, we have some of the same problems as far as existing utilities, existing power lines underground, and having them respond to us, even on how quickly the fault will break, or how quickly it will return -- because there's a sequence. Okay.

Once you touch or once you ground one of the wires and it breaks, it can come back. They can't tell how long that will be. Maybe that will be some kind of proprietary information. I don't know.

All we can do then is just to tell, or suggest, that our folks, once they make contact, don't do anything else until the power company comes out and physically reconnects or disconnects, or whatever, until we talk to those people physically.

So, I understand where you're coming from, from a standpoint of a contractor being exposed. Okay. Because sometimes they don't respond to us, even though we've done damage to the underground wire. Sometimes they can't because they don't know.

CHAIRMAN KRUL: Yes, Bill?

MR. RHOTEN: I just had one question in regard to that raw information they have. That's not a gray area. That's not a mystery. They have that information. It's not like we're guessing here, guessing there. It's black and white.

MR. WALLACE: The system engineers need to know that information in order for the system to operate properly.

MR. RHOTEN: Right. I mean, I can't see any reason why it shouldn't be mandated that they turn that over. It's the same problem we had with the process safety management years ago.

We had some problem communicating our contractor's -- and that had to be, I think, mandated in the standard to get better communication. So, I don't see a reason why they shouldn't be obligated to give that information to a contractor.

CHAIRMAN KRUL: Good. Would you like to put that in the form of a motion?

MR. RHOTEN: So moved.

CHAIRMAN KRUL: Second?

VOICE: Second.

CHAIRMAN KRUL: Anyone else on the question?

(No response)

CHAIRMAN KRUL: All those in favor, signify by the sign "aye."

(Chorus of Ayes)

CHAIRMAN KRUL: Opposed, if any?

(No response)

CHAIRMAN KRUL: Abstentions?

(No response)

CHAIRMAN KRUL: That takes care of that one.

How about flame-retardant clothing? I'm assuming that within that subgroup -- I didn't write it all down, nor did I bring my copy, I'm ashamed to say. But is the provision of payment included in this discussion or is this a separate issue?

MR. WALLACE: That would be a separate issue.

CHAIRMAN KRUL: Okay.

MR. WALLACE: We did not include that in our -- that wasn't one of the things that the SBREFA panel looked at.

MR. HAMMOCK: It is certainly all right for you to weigh in, if you'd like.

CHAIRMAN KRUL: Well, let's deal with them one at a time and not muddy the waters. Let's deal with the issue of flame-retardant clothing, first of all. I mean, do you guys want to give us a little -- you know, what's SBREFA got to say about it, or where's the issue sitting?

MR. WALLACE: The SBREFA -- the small entity representatives generally were not in favor of requirements for protecting -- for increasing the requirements related to protection from electric arcs.

Currently, our general industry standard requires employers to ensure that their employees don't wear clothing that could ignite and continue to burn if there's an electric arc.

Basically, what that means, is they would either have to be in FR clothing our they would have to do some kind of analysis to ensure that the natural-fabric clothing that their employee is wearing would not ignite in the presence of an arc that their system could generate.

Most of the small entity representatives that commented on this suggested that we continue that requirement in Subpart V. It seems to the Agency, to the extent that employees are getting burned by electric arcs, that it really doesn't take much more to go from not hurting your employees more when there's an arc, to actually protecting them from the effects of an electric arc. Basically, that's the issue.

MR. HAMMOCK: Mr. Chairman, just to piggy-back off of what David said. There was also quite a long discussion about various nuances to the requirement in terms of how many sets of FR clothing are typically given to employees, should be required or thought about by the Agency.

I would just say, my recollection of the conversation was that there were a number of small entities that did provide FR clothing to their employees in various degrees and various levels.

So, I don't disagree that -- the sense was we should take a 269 requirement and apply it to Subpart V. There was at least substantial discussion about the requirement, and people already doing this.

MR. WALLACE: There was one other thing I should probably bring up. It's really reflected by our second, the B item, whether we should provide more information in the proposal to help employers comply with the rule.

Many of the small entity representatives thought that the standard did not provide enough guidance to let them know how to select clothing for their systems, for their hazards.

CHAIRMAN KRUL: All right. Let me ask a couple of questions. Again, I'd probably defer to Jim on some of this. But what would the average -- this flame-retardant clothing that we're talking about. Are we talking about, like, a Carhart bib overall type thing, or is it a --

MR. WALLACE: It depends. Some of the work that -- Jim is the chairman of the ANSI subcommittee that deals with work rules for this type of work, and that subcommittee has been looking at this.

The subcommittee has adopted requirements, or has adopted basically a guide that would suggest that lots of work -- that some of the lowest levels of FR protection would be acceptable.

They have come up with a proposal that suggests that five calorie -- clothing rated at five calories, which is more or less the minimum weight of FR clothing you can buy, would be acceptable for large portions of most utility systems, or at least for overhead work.

If you're dealing with other parts of the system, if I'm in a substation, for example, and I'm working on some switch gear, if I'm much closer to where, basically, the source of the electricity is, the fault current is going to be much higher, the available energy could be much higher, and you might actually need some kind of a switching jacket or something that's even more substantial than a Carhart.

CHAIRMAN KRUL: And what type of price range are we talking here if the employer were to pay for this, or the employee?

MR. WALLACE: Is Bob still here?

MR. HAMMOCK: There might be some indications in the materials that we sent you, some of the economic analyses. I think that information might be provided. Although I --

CHAIRMAN KRUL: I was just looking for ballpark.

MR. WALLACE: Ballpark, the switching suits are several hundred dollars. A set of FR shirt and pants, I think that's in the hundred dollar range, ballpark.

MR. TOMASESKI: I mean, it depends. There's all kinds of different programs in existence out there already. There's employers out there that have actually spent millions of dollars on their clothing policies, that basically what they've done is purchased uniforms for the workers. There's other employers out there that provide a set of coveralls once a year and you wear it if you need it. So, there's both extremes.

There's the uniforms that you wear 24-hours a day, they give you 10 sets of clothing, jackets, coveralls, and everything else, and then there's just one set of clothing, so you're spending $120 a worker. But, I mean, arguably, which program do you want to be in, you know?

CHAIRMAN KRUL: Right.

MR. TOMASESKI: You might want to be in the program where it's 100 degrees out and I've got to wear these coveralls. If it were me, I'd argue, no. But there's extremes either way.

There's other programs out there that they provide you a shirt and that's it, or two shirts, you know. So you can get a shirt for 40 bucks or less. So, it depends.

CHAIRMAN KRUL: I mean, the issue of working, this potential for electrical arcing obviously happens when working live, around live switch gear or wherever, inside the utility, so the exposure to danger for a contractor's employee to have an electrical arc zap him or her is pretty high. Fairly high. I mean --

MR. WALLACE: It's substantial.

CHAIRMAN KRUL: It's a substantial risk, I guess, is where I'm going. And I understand the cost involved here and why the small entity representatives would be going, this is going to kill us at $700 a suit. But it's a necessary evil to have that substantial risk just for the type of work that you do in those utilities.

Yes, Cherie? I'm sorry.

MS. ESTILL: My understanding is that electrical arcs is actually a serious problem in the industry, and that small contractors are actually disproportionately affected by this.

So one of the questions on 2B was what additional requirements, if any, should be -- some sort of minimum level of training on electrical safety should be required.

And there's plenty of that out there, between NFPA and IEEE, that it would just be assuring that the small employers are getting some training on electrical arcs, because it's not, I think, a hard thing to understand how that works and how you could be burned. So, some sort of training, I think, would be important.

I also have a question. I'm not sure how this works with -- I guess as a general industry standard, there's Subpart S. Can you tell us what's going on with that and if that's at all related to this?

MR. WALLACE: Subpart S is a separate general industry standard. It's our general industry electrical standard. Part 2, the second half of that standard, relates to safety-related work practices. There is what you've referred to as the NFPA 70E standard that governs -- part of that standard also addresses work practices.

The latest version of NFPA 70E has requirements in there that require protection from electric arcs. So, for work that's not utility work but work in a plant on wiring, or in a panel board, or something like that, would require similar types of protection.

MS. ESTILL: So that's a general industry standard, but it's in this process, the rulemaking process, but it's further along?

MR. WALLACE: At some point we do expect to address that. That's not part of this rulemaking.

MS. ESTILL: It's two different -- okay.

MR. WALLACE: Right.

CHAIRMAN KRUL: On the two issues of small entity representatives worrying about how many suits or how many sets of clothing you have to buy, I mean, we've seen this time and time again.

I'm just throwing this out for your edification. I mean, a contractor has that right to say, you know, it's my duty and responsibility to provide you with a set, regardless of what the cost of that is.

My job rules and regulations are, my company's regulations are, any future sets, if you either lose it-- other than having an electrical arc destroy it--that that's your responsibility. My responsibility is to provide you with one set. Or they work out a pro-ration system. So, I mean, there's an answer to that aspect of it.

And then Jimmy's point about -- you know, that's just, workers are workers. When it's 100 degrees out, they'll shirk off anything non-cotton fabric, whether it costs $700 or $7. If it's hot, they're not going to wear it. But we went through that with the asbestos standard. People said, we're not going to wear Tyvek suits when it's hot out.

Well, if that employer knew that he was going to get a severe fine because they didn't have respirators and Tyvek suits on, as uncomfortable as it was, they were worn. So, you know, the abatement of the hazard and the saving of life and limb is really what's important.

So if it goes into a standard, I mean, those things are going to take care of themselves. I don't see those as hurdles that have to be jumped. Those things can be dealt with.

Anybody else? Scott?

MR. SCHNEIDER: The only thing I was going to add, is I can remember reading the statistics on fatalities among construction workers. If you look at fatality rates, electrical power installers and transmission people working on transmission lines has probably the highest fatality rate, greatest risk of fatality of any workers in the construction industry.

CHAIRMAN KRUL: Well, the training component -- and I think you mentioned that in the beginning of your remarks, and I know Jim and I have talked about this before, and it goes to Cherie's point about the disproportionate share that goes to these small entity representatives, whether they all do it or that portion of them do it, just don't have enough training.

Young people are sent into these utilities, transmission towers and distribution centers and don't realize or recognize the hazard that they're faced with.

It's the same thing with us. We train and train and train and train, and there's people that just go out and continually fall through on roofs. It's something you deal with. If you don't make people aware of the hazard that's around them or if you don't take steps to prevent it or avoid it, that's when the accidents happen.

Jim?

MR. TOMASESKI: To follow up on what Scott said, not to argue that the data he was looking at was incorrect or anything, but if you look at the fatalities, I think you'll probably find two areas where they occur most, and that's in electrical contact and probably falls that are extremely high on the list. The burns themselves, for whatever reason, seems like the number is growing, but I don't think it's near the top of the list at all.

But one of the things that David mentioned to the ANSI committee, the National Electric Safety Code, the NESC, we've been working on this issue for a long time, probably 12 years, at least.

We finally, this year, in the last year and early part of this year, came up with a proposal that got through the committee that addresses clothing, and specifically addresses the exposures that a worker is expected to see doing this type of work. NFPA 70E was mentioned.

As David said, they address exposures to electric arcs also. But it's our feeling that it addresses different exposures generally from what we associated with this industry.

Some of the exposures are the same, but when you're talking about up a pole, or up a structure or a tower and there's some open-air arc compared to an enclosed space or a metal-clad switch gear or something like that, it's two different things.

And what we have tried to do in the NESC, is to identify that specific exposure in this industry, and we think we did a hell of a job, too.

(Laughter)

CHAIRMAN KRUL: Given that the danger exists, and without getting into the range of possibilities that exist, and I'm sure there'd have to be more studies done -- I hope I understand the question that you're asking from this committee for its advice correctly.

That is simply whether this committee feels whether flame-retardant clothing is necessary for protection of workers against electrical arc under this subpart. Is that fair to state it that way?

MR. WALLACE: That would be fair.

CHAIRMAN KRUL: Would someone like to put that in the form of a motion? Jane?

MS. WILLIAMS: I so move.

VOICE: Second.

CHAIRMAN KRUL: Second. Anyone else on the question?

(No response)

CHAIRMAN KRUL: All those in favor signify by the sign "aye."

(Chorus of Ayes)

CHAIRMAN KRUL: Any opposed?

(No response)

CHAIRMAN KRUL: Any abstentions?

(No response)

CHAIRMAN KRUL: So moved.

Was there a third part that I missed here? I thought you said there were three things that you were --

MR. WALLACE: I guess the other one, which you may have already voted on, is the general question of, should the Subpart V be updated to make it look like the general industry standard.

CHAIRMAN KRUL: Well, we didn't put that in the form of a motion, did we? Oh, we did do it? Kevin made the motion and we didn't second it.

Would you put that in the form of a motion, Kevin?

MR. BEAUREGARD: Sure. Let's see. Should OSHA make the requirements for construction of electric power transmission and distribution installations consistent with the general industry requirements for maintaining these installations?

I guess, in a statement, I would recommend OSHA make the construction and electric power transmission and distribution installations consistent with the general industry requirements for maintaining these installations.

CHAIRMAN KRUL: Second to the motion?

VOICE: Second.

CHAIRMAN KRUL: Second.

Anyone else have a question? All in favor -- oh. Go ahead, Tom.

MR. BRODERICK: Does that catch everything that you're looking for or should we also be advocating adherence to NFPA 70E? I mean, if we're going to help you guys, we want to do as much as we can.

MR. WALLACE: I suggest you ask Jim that question.

MR. HAMMOCK: Notwithstanding the NFPA 70E, we wanted to focus the committee on these issues. But if the committee has something else that they would like to say, then they're certainly -- I mean, as we said in the beginning, any recommendations that the committee has, we'd certainly welcome. But we were most interested in focusing the committee there, but certainly anything would be welcome.

CHAIRMAN KRUL: Let's finish this vote first. I just wanted to call for the question.

All those in favor of the motion signify by the sign "aye."

(Chorus of Ayes)

CHAIRMAN KRUL: Opposed, if any?

(No response)

CHAIRMAN KRUL: Abstentions, if any?

(No response)

CHAIRMAN KRUL: So moved.

We need somebody to make the motion to have OSHA move forward with the proposal, with the recommendations -- the whole Subpart V, with the recommendations that we have just made. Is that what you're looking for, is the complete Subpart V? Would you make that motion then?

MS. WILLIAMS: I move that OSHA proceed with its update of Subpart V, in accordance with the motions we made prior.

CHAIRMAN KRUL: Second?

VOICE: Second.

CHAIRMAN KRUL: Anyone else on the question?

(No response)

CHAIRMAN KRUL: All those in favor, signify by the sign "aye."

(Chorus of Ayes)

CHAIRMAN KRUL: Opposed, if any?

(No response)

CHAIRMAN KRUL: Abstentions, if any?

(No response)

CHAIRMAN KRUL: So moved. Gentlemen, thank you.

Noah, are you ready to do what you need to do?

MR. CONNELL: Yes.

(Pause)

CHAIRMAN KRUL: Please give us your address and phone number to receive information regarding this committee, or if you need updating on your current e-mail address, if your e-mail address has changed and you're already on OSHA's mailing list.

Noah, as always, welcome.

MR. CONNELL: Thank you.

CHAIRMAN KRUL: I know you're here to give us the cranes and derricks update, other than what appeared in the OSHA Reporter the other day.

MR. CONNELL: I was just going to read that to the committee.

C-DAC UPDATE

By Noah Connell

MR. CONNELL: Good afternoon. Thank you, Mr. Chairman. My name is Noah Connell. I'm the Director of the Office of Construction Standards and Guidance and I've been asked to give a little update on our effort to amend/update the cranes and derricks portion of Subpart N.

We formed a negotiated rulemaking committee early last year. We began negotiations in July, late July of last year. Our target has been to complete negotiations by July of this year, and we are, I think, going to meet that target, although it's going to take a bit of an effort to get there. But I think we can get there.

First, I would just like to say that we have a deep debt of gratitude to the members of the C-DAC committee who have been meeting about once a month, and those meetings have been, in some cases, three and a half days out of the week.

When you consider travel time, we have 22 members of the public who are committing, have been committing almost 25 percent of their time over the course of almost an entire year to help us write a new standard, and that's quite a commitment on their part. We are very much indebted to their efforts.

We are close to meeting our goal. The evidence of that is that, of the approximately 28 or so major issues that we have tackled, we have reached tentative agreement, or are close to tentative agreement, on the vast majority of those.

Just to give you a little bit of an idea of where we are today, issues that I think we have tentative agreement or are close to having tentative agreement on include the scope of the standard, include:

  1. Assembly and disassembly procedures and precautions

  2. Signs and signals, safety devices and operational aides

  3. Inspections

  4. Equipment modification

  5. Hoisting personnel

  6. Qualifications of maintenance and repair workers

  7. Machine guarding

  8. Ground conditions, work zone control, design and construction requirements

  9. Free fall and power down

  10. Use of multiple cranes and lifts

Some of the outstanding issues that we are still wrestling with include:

  1. Wire rope inspection requirements

  2. Operator qualifications

  3. Fall protection

  4. Power line safety

  5. Derricks and floating cranes

Also, we are going to have a reduced set of requirements for equipment that has a capacity below 2,000 pounds, and we are working on identifying what that reduced set of requirements will be. So, that's just to sort of give you a general idea of where we are.

Now, we have discussed in detail all the issues that I've mentioned. We have regulatory texts, or draft regulatory texts, for virtually all of what I've mentioned. So, we really are pretty far along.

I'd be happy to entertain any questions.

CHAIRMAN KRUL: Go ahead, Jane.

MS. WILLIAMS: Noah, can you tell me, on the operator qualification, if you're at a stumbling road on that or do you see consensus?

CHAIRMAN KRUL: I'm glad she asked you first.

MR. CONNELL: Well, it may be a rocky road, but I don't think we've stumbled yet. We're in the process of sorting out what the options are and where people are on those options.

I will put some words in your mouth to redefine your question. If your question had been, are we at an impasse, I would say, no, we are not yet at an impasse, in my view. We're still making progress.

MR. SWANSON: Noah, I'm sorry I missed the first couple of minutes. Did you go over for these folks the definition of "consensus"?

MR. CONNELL: No, I did not.

MR. SWANSON: That helps explain the stumbling/lack of stumbling a little bit, I think, if you'll quickly share it with these guys.

MR. CONNELL: Okay. The ground rules that the committee agreed to in the beginning was that consensus consists of no more than two non-federal dissenting members. So, to put that in English, if you have three non-federal members voting against, then you do not have consensus.

MR. SWANSON: And the ramifications of not having consensus on an issue is what?

MR. CONNELL: If you don't have consensus, then that issue is taken out of the negotiating process and OSHA will go off and magically come up with a perfect solution on its own.

(Laughter)

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: I just wanted to know, what is the time table from here on out? Let's say that you complete your work in July. Would you bring it before this committee in the fall? What's your timeframe on when you would have a proposal or a SBREFA process, whatever?

MR. CONNELL: Well, in terms of SBREFA, the Agency will have to make a determination as to whether it is a significant rule. In other words, whether one of the triggers for the SBREFA requirements apply. If it does, then we'll do the SBREFA process.

As you are probably aware, that is generally a minimum of 120 days, but in reality it's more like close to six months from beginning to end. While we haven't worked out in detail the schedule for how that would dove-tail with coming to this committee, I would suggest that one possibility is that those things would happen simultaneously.

But that certainly is one possibility. We do want to move forward. The Assistant Secretary indicated in the beginning of the process that once the negotiation part was completed, OSHA would move expeditiously to complete the preparation of the document.

In other words, the writing of the preamble, the completion of SBREFA, if necessary, coming to this committee. In other words, the hoops that we have to jump through to get that into the Federal Register. We would do that expeditiously.

So, my expectation would be, assuming that we do finish in July, that, yes, in the fall, hopefully, we would be well into the SBREFA process if we're doing that coming to you folks.

CHAIRMAN KRUL: Why would there be opposition to ensuring operator qualification through the certification and registration process? It just doesn't make any sense to me.

MR. CONNELL: Well, let me answer that this way. The committee is still meeting. I think that it is most appropriate for OSHA to be discussing that in the context of the committee and not in a forum like this. So, I guess I would prefer to not get into the --

CHAIRMAN KRUL: You'd rather swing and miss it. That's true?

MR. CONNELL: Yes.

MR. SWANSON: If there's anyone in the back of the room that would like to clarify that issue for the Chair after this meeting is over, he'll be free, I'm sure. Thank you.

CHAIRMAN KRUL: Anyone else?

(No response)

CHAIRMAN KRUL: Noah, thank you.

MR. CONNELL: My pleasure.

CHAIRMAN KRUL: We appreciate you coming and giving us an update on that.

MR. CONNELL: Thank you.

CHAIRMAN KRUL: Okay. We're done for the day. Be back here tomorrow at 8:30. I think we can easily get out of here by 12:00, for those of you who are planning to leave town, or earlier, if we can. We are adjourned for today.

(Whereupon, at 3:42 p.m. the meeting was recessed, to reconvene at 8:30 a.m. on Wednesday, May 19, 2004.

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting of the Advisory Committee on Construction Safety and Health (ACCSH), held on Tuesday, May 18, 2004, were transcribed as herein appears, and this is the original of transcript thereof.

LISA DENNIS

Court Reporter