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U.S. Department Of Labor
Occupational Safety And Health Administration

Advisory Committee On Construction Safety And Health
(ACCSH)

Volume 2
Wednesday, May 19, 2004

200 Constitution Avenue, NW
Room N-3437
Washington, DC

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


The meeting was convened, pursuant to recess, at 8:37 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
Ms. Kim Lazor
Mr. Felipe Devora

P R O C E E D I N G S

Opening Remarks By ACCSH Chair - Robert Krul

CHAIRMAN KRUL: Good morning, everybody. I would call this committee back into order.

We ran a little bit over the opening remarks, but that's good, because all I really wanted to say to this committee, which I didn't get a chance to do yesterday because we were all rushing out of here, but I want to thank you for your work yesterday in what was a difficult, and could have become a really, really contentious issue -- and it was complicated, there's no question about it. But I want to thank you for -- even though there was disagreement, that that disagreement was civil and it was understood.

That advice and recommendations sent to OSHA, as we said several times yesterday. It's okay for committees to disagree, as long as they disagree and still shake hands and smile at one another. That's the important thing. So, I want to thank you for your work yesterday.

Workgroup Charge/Measurable Outcomes

CHAIRMAN KRUL: On this workgroup charge, measurable outcomes, you have an ACCSH workgroup chart that was provided to you. I don't want to get into the discussion we had the last time we tried to pare this down. I think everybody understood where I was coming from, although, again, there was some disagreement.

But understanding that we only have so many people to work on this -- and I don't want to gore anybody's ox. If someone thinks that a topic for a workgroup is important, we will put it on the agenda and keep it there.

But I would like everybody to remember that last discussion. When you come to town, you only have so much time to work in these workgroups. If we have 15 or 20 of them, it's going to be difficult to put man- and womanpower on all those committees and to keep them divided amongst the employer, employee, and public sector, as OSHA wants to see anything that comes out of those groups.

You can't have a workgroup lopsided one way or the other and expect OSHA to seriously consider the advice and recommendations that come out of them, I think, for obvious reasons.

So, let's open this thing up to discussion, looking at that chart. I know there's also some--and I asked Bruce yesterday if he would be kind enough to comment on that and he said that he would--issues out there about who can come to these workgroups when they're scheduled, and who goes on the OSHA payroll for those and who doesn't. We'll get that all cleared up today, hopefully.

So, who would like to go first? Jane?

MS. WILLIAMS: Mr. Chairman, on silica, I have spoken in conversation with the co-chair, Cheryl. We both feel that, as this is now in a process, that most of our charges are eliminated at this point until such time as they review the SBREFA information and may come back to ask us to do tasking for them in any particular area.

There is a document in your folder, a very thick document. That was the last charge of the Silica Workgroup of a year and a half ago, where we were asked to come up with multiple types of wet-cutting methods that we could share with the committee just to help you be more informed when those discussions on silica came back to the committee.

So, having completed that, and with that being circulated to the committee, all of our actual charges have been completed. So, therefore, I would recommend that that go into a -- I don't know that it would be proper for it to be dispersed at this time, but certainly it could be inactive, unless we were to be recharged. Or we could disperse the committee and reform it, should we be given a new charge, at the Chair's pleasure.

CHAIRMAN KRUL: Okay. Let me ask the pleasure of the committee. The last time we got into this active/inactive workgroup discussion there were a lot of feelings about not listing workgroups and having the word "inactive" stamped next to them. I understand, but is it -- I mean, I don't have a preference. I mean, I'm -- yes?

MR. SWANSON: My recommendation to this committee is, if you believe that a committee, subcommittee, workgroup need not be active, what I would do is disband the committee.

My recommendation is based on where this administration has come from in the last three and a half years. On the regulatory agenda, if there is not a standard that is being actively worked on, they have taken it off the regulatory agenda.

They do not want things on the regulatory agenda that are promises that, we'll get to it someday, and it resides there for six or eight years with no work being done.

Their preference is that, if you have an active subject and an active committee, make it active. If it's not active, get rid of it. If there's a need for it next fall, start another committee. Easily done. Anyhow, that's my recommendation and my thought process.

CHAIRMAN KRUL: Scott, go ahead.

MR. SCHNEIDER: Well, I mean, silica is a perfect example. There is an active regulatory process under way. I think the question is, if we disband the Silica Subcommittee, and say something happens, say OSHA puts out a proposal in the next, say, couple of months before our next meeting, we may want to call a Silica Subcommittee meeting, say, prior to, like the day before our next ACCSH meeting, whenever that's going to be. So, we wouldn't be able to reconstitute the committee without this committee meeting. So, I don't know. It seems like -- I don't see it's a big deal to leave at least the Silica Subcommittee, the noise one, things where there's active regulatory process under way, leave those as standing committees right now, as existing committees, and then they will become active by having a meeting when something occurs in the regulatory process that they need to respond to.

So, like for example, noise. There is going to be a noise proposal sometime, hopefully in the next year. So we're going to have to get together as a workgroup and discuss it, discuss what the propose standard says, maybe make a recommendation to this committee.

So, we don't know when that's going to happen, whether it's before our next meeting or after our next meeting. So, I would leave that as an open committee, and active or inactive is irrelevant. It's just a question of whether or not they meet. If they don't meet, they are, de facto, inactive, but they can meet at any time.

CHAIRMAN KRUL: All right. I'm going to need some clarification and help here from someone. If the scenario you're posing develops, what input does this committee have at that point? I thought the input was prior to the regulatory process, not post. Is that correct? Is that not correct?

Jane? Go ahead.

MS. WILLIAMS: Mr. Chairman, when we discussed the silica charge, its mission, if you will, it was to support Mr. Perry and others to help recognize construction activities that they could use in their language as examples, if they cared to do so, which they did.

At this point, we do not have an additional charge. It's my understanding--and I may be wrong. Mr. Swanson might correct me--that should silica, at this point, have clarification needed, it would come back to the entire committee for their consideration, and at that time the committee Chair may say, well, do we want a workgroup to figure this one out, or is going to be another hexavalent chromium where we all get involved? That's how it was explained to me would occur once it got through the SBREFA process, which this one has.

So, I don't know what more, as construction lay people, that we could offer to them, because they are along their merry way, except to do what we did in the process, the hexavalent chromium, to say, well, we don't understand, or maybe look at economics. But I think that would be more of a joint effort than the meat, nitty-gritty of a workgroup, as it was explained to me.

CHAIRMAN KRUL: And I understand what you're saying, Scott. It's just hard for me to envision what these workgroups -- say the workgroup recommended a PEL of blank, and it came back twice that or five times that, and the committee -- I mean, what input do we have at that point?

MR. SCHNEIDER: Let me just suggest something. Like, for example, OSHA had some stakeholder meetings on hearing conservation and construction in Chicago recently. I mean, if OSHA puts out a report, a summary--which they're going to do.

They haven't done it yet--of what the results of that meeting would be, that's something that I would think could go to the Noise Workgroup and we could look at it and somehow respond to it as to whether or not we, you know, agreed with it, disagreed with it, or had additional information to add.

Like, for example, I just got this article on the number of silicosis cases in the United States, an estimate that was made by some researchers in Michigan. I was going to provide this to the subcommittee and they could review it, or -- I don't know. Make copies available to the committee. I don't know the best way to bring this to people's attention.

I did want to add, on this one-third issue, which is the Trenching Workgroup, I'm very unclear as to what the status of that is, given this trenching initiative that was set up, and there's a trenching sort of task force that OSHA set up.

There was a lot of confusion about what the relationship of that is to our workgroup, whether it's the same or different. We're meeting this afternoon, I guess, but I don't know whether that's an ACCSH meeting or a separate meeting.

CHAIRMAN KRUL: What makes you think it's not an ACCSH workgroup meeting?

MR. SCHNEIDER: Because we were told it's not.

(Laughter)

CHAIRMAN KRUL: This was set up separate and -- go ahead, Greg.

MR. STRUDWICK: The Trenching Task Force was set up to address the initiative that we were involved in, Scott, so this was more of an informal situation this afternoon. But with Felipe, with all of us here, basically, it was easier to get the entire group that met a month ago together today, this afternoon. We will resolve some of those issues this afternoon, I'm sure.

CHAIRMAN KRUL: David, go ahead, then Tom.

MR. BUSH: Mr. Chairman or Mr. Swanson, is there a time certain when input from this committee no longer helps the OSHA staff? I mean, is that something we could look at and say, okay, at this point -- because I agree with the Chairman.

At some point -- I mean, our job is to simply advise and to share our thoughts. If there is some time certain, then that would certainly put a stop to any workgroup, committee, or -- and I don't know whether there is or not. That's my question.

MR. SWANSON: Well, this committee really wears several hats. What was done yesterday and what has been done often in the past, the committee came to -- or OSHA came to this committee yesterday, under the old Construction Safety Act that has language in there -- predates OSHA.

It has language in there indicating that the Secretary, on construction matters, should seek the advice, before she takes action, of her Construction Advisory Committee. It predates OSHA. Giving a nod to that language -- pardon?

MS. SHORTALL: Mr. Swanson is correct that the original theory or the original idea of having this committee consult with the Department of Labor and OSHA whenever a safety and health standard is going to be published that addresses construction activities is in the Construction Safety Act. But OSHA also codified that in Section 1912.3 of our own regulations covering hearings and committees.

So, it also is specifically stated in 1912.3(a) that prior to publication of proposed rules, whenever OSHA is publishing or proposing a standard on safety and health, directed to construction activities or affecting them, that they shall consult with this advisory committee.

MR. SWANSON: I think the language -- and there will be a test on this for all of you later. I think the language is "seek the advice of" as opposed to "consult." The statute says, "seek the advice of."

Anyhow, what happened yesterday, they came to this committee formally seeking the advice of this committee. That is over. That's done. You've said what you have to say on Subpart V and on hexavalent chromium.

This committee, nonetheless, is a continuing committee. What OSHA has done over the past 30 years, is allowed this committee, when it meets, to discuss items that are of interest to the construction community.

So if there was an item out there OSHA has already been to you with its proposed standard, it has received your advice, possibly even consulted with you on the issue, and OSHA has now published its proposal, OSHA does not need you any longer on that issue.

OSHA has, however, never told this committee that you can't deal with that subject any longer, we don't want to hear you talking about it. Perhaps that day will come, but it hasn't in the first 30 years. So, you can continue to share your opinions with OSHA regard