U.S. Department Of Labor
Advisory Committee On
Construction Safety And Health (ACCSH)
Wednesday, June 25, 1997
The Advisory Committee met in the Frances Perkins Building
200 Constitution Avenue
at 9:00 a.m.
Knut Ringen, Chair, Presiding.
Stephen D. Cooper
William C. Rhoten
Lauren J. Sugarman
Bernice K. Jenkins
Ana Maria Osorio, MD
Knut Ringen, Chair
Directorate of Construction Update
H. Berrien Zettler
Construction Projects Construction Inspections, Fatalities
Decontamination Practices and Issues
OSHA's Multi-Employer Work Sites
Allocation of Liability
Women in Construction
Ana Maria Osorio
P R O C E E D I N G S
MR. RINGEN: Good morning. We are getting started although we're not really quite ready to get started, so you'll have to bear with us.
One of the things that we're going to deviate from. We are supposed to have a court stenographer cover the whole thing. That's not going to be the case immediately, but we are going to tape the meeting and then they can make a record out of that, and I think that should be plenty adequate. It's not that we're going to have any earth-shattering controversy here this morning I don't think.
But rather than sit around here and wait all day for all of the logistics to come together, I think we will get started.
So the meeting is called to order. The first item on the Agenda is to approve the minutes from the last meeting, the meeting of March 13th and 14th. Those minutes have been distributed to all the members. I hope you've had a chance to review them.
And do we have a motion to approve those?
MR. CLOUTIER: So moved.
MR. RINGEN: Is there a second?
MR. COOPER: Seconded.
MR. MASTERSON: Seconded.
MR. RINGEN: Okay. Seconded by Steve Cooper and Bob Masterson.
The motion was made by Steve Cloutier, for the record. It was seconded by Steve Cooper and Bob Masterson.
Any comments, any questions about the minutes?
VOICE: One comment. When we talked about the NIOSH thing or the asphalt papers, and the program that NIOSH is producing now, sending all over, did OSHA get a stack of them to distribute to the area directors, do you know?
FEMALE VOICE: Those were sent out shortly after the move.
VOICE: Okay. Great. Thank you.
MR. RINGEN: So any other comments?
Okay. All in favor of adopting these minutes, please say aye.
(Chorus of ayes)
MR. RINGEN: Any opposed?
Okay. They are adopted. Thank you.
Judy Paul called me and said she would be unable to be here today, and I think also Diane Porter from NIOSH and said she would not be here and that Mel Meyers would be serving in her place.
FEMALE VOICE: Owen Smith.
MR. RINGEN: Owen Smith will not be here either. Okay.
We nevertheless have a quorum and we can proceed.
I would like to take a moment for the folks who are in the audience to introduce themselves to us so that we know...with your affiliation please, name and affiliation so that we know who you are.
Starting with you, Ellen.
(Voice from the audience were mostly inaudible)
MR. RINGEN: We have some minor changes to the Agenda for today's meeting. The issue that's listed at 11:00 on Decontamination Practices I want to couple with the issue listed at 1:00 on Washing Facilities on Construction Sites. They have similar kinds of issues with them, so we'll deal with those together.
And therefore what we'll do is after the Standards Update presentations this morning, we will take the presentation by you, Steve, on Settlement Agreements first, and we will also try to get through the whole issue decontamination practices and washing facilities before lunch so that we'll take that after the settlement agreements.
There will be no working group presentations this afternoon on the Safety and Health Program Standards. I think most of the other working group reports will also be fairly brief so that I suspect that we will be able to complete ahead of schedule today which is a little bit of a problem since I see Greg Watchman is now on the Agenda here for 4:00, and I don't know if he can make it earlier.
FEMALE VOICE: I don't know.
MR. RINGEN: We may want to look into that.
VOICE: He cannot.
MR. RINGEN: He cannot?
Well, in that case what we will do is...I don't know if we can move with some of the stuff on the second day at the end of today, but there are some things tomorrow that we cannot do today. We have a very interesting, I believe, training presentation by the ABC tomorrow morning, and, Charlie, we may be able to do that earlier than is on the Agenda, if that's okay with you.
So in which case we will definitely be finished early tomorrow. We ought to be...
Can we do OSHA's Respiratory Standard today instead of tomorrow?
FEMALE VOICE: I can check. The NIOSH presentation...
MR. RINGEN: Can we do the NIOSH presentation today?
VOICE: We have the presenters here but Maria is going to come in this evening and give that presentation tomorrow. She's not here today.
MR. RINGEN: It's not possible for you to introduce it today, do you think?
VOICE: It depends if Maria gets in here or not, it's later this afternoon. She plans on being here but I'm not quite sure what time.
MR. RINGEN: Can you try to check on that maybe when we take a break?
MR. RINGEN: So we will try to get...and the stuff about the OSHA link. I'm not sure what that is.
Can we do that today?
FEMALE VOICE: I doubt that very much.
MR. RINGEN: Okay. So I think what we will do is do as much as we can today. Try to move some of the stuff from tomorrow up to today, and try to finish up tomorrow probably about 11:00 or something like that.
Any objections to that approach?
MR. COOPER: Yes, but go ahead anyway.
MR. RINGEN: That was Mr. Cooper's contribution.
OSHA has informed me that they intend to place a notice in the Federal Register shortly announcing that the terms of current members have expired and that they will seek nominees for new terms to the committee, and that that announcement will be out sometime during the summer with an idea to be that the new appointments will be filled by the fall, probably by the time that we have the next meeting of this committee.
For those who are current members, and I should say that I very much enjoyed working with this group. I think we have an excellent committee here. And we have made some very good progress and done some very good things.
For those members who have an interest in continuing to serve on the committee, they should contact the respective organizations that have nominated them and seek renomination because somehow there will be a requirement that anybody who serves on the committee will have to be renominated or nominated as a new member and then OSHA will decide obviously among those who are nominated.
It's my understanding they will be looking for good qualifications in poetry and prose, is that correct?
MR. SWANSON: It's my understanding, Mr. Chairman, that the Federal Register today carries that notice.
MR. RINGEN: Okay. All right, today. So maybe we will get it during this meeting. A copy of it.
MR. SWANSON: We'll try and make that happen.
MR. RINGEN: And get it tomorrow.
That's about all I have in terms of introductory statements.
Does anybody else have anything to add?
If not, we will start with the presentation by the Construction Directorate.
Bruce, if you want to go ahead.
MR. SWANSON: I thank you, Mr. Chairman, and I will start this presentation and hopefully finish in 15 minutes. If I can't, I would ask permission to take an interruption. I will have somebody move to the Standards Update, which is the next item on the Agenda. I have to see the Assistant Secretary for a brief period of time at 10:00.
So let me start with what has become a tradition, and that is a status on the Directorate's...at least personnel-wise...we last time reported that we had five vacancies in our office of 32. We have had two more vacancies since then, so that is seven vacancies as of this morning. However, two jobs have been offered and accepted and although the persons are no on board yet, on the 6th of July we will have an experienced field person coming in and joining our office of Construction Services, and an experienced civil engineer joining our Engineering Office.
So we are back to five vacancies. Those jobs are all posted and hopefully by the next meeting we will have filled all five of those.
I can give you a breakdown if you require as to where those 32 positions are but absent a request, I won't do that.
I'd like to talk to you for a moment on current projects that the Directorate, your Directorate, is engaged in. One of the things we do, as you well know, is significant case review for those cases dealing with the construction industry.
Significant cases, by our definition, are those cases where the proposed penalties in excess of $100,000. Issued between March, our last meeting, and the present date, we've had 16 significant cases in the construction industry. Our FY '97 year-to-date is 41 such cases in the construction industry. And I won't give you those individual cases either but if there's particular interest in a case you know of, we can get you the background information.
Egregious case review, and an egregious case, as we define it, is where OSHA has alleged a separate violation and proposed a separate penalty for each instance of non-compliance with whatever standard is being cited. The resulting very large penalty is part of our compliance strategy, as we've reported before, that is to improve our effectiveness and the ripple effect of our citations.
Since we last reported on egregious penalties, we have had three such cases in the construction area. The first was Yagel Excavating, and I will give you more detail on these. Yagel Excavating in Pennsylvania, that's OSHA's Region 3, is $120,000 plus proposed citation. Cited willful for four unprotected trenches where employees were exposed to serious violations for lack of training, no warning vest, and for using unapproved support systems as trench supports.
R. Richard E. Fowler, Pompano Beach, Florida, Region 4, $450,000, cited willful instance by instance for four employees in protected trenches. Willful for undermined pavement and spoil piles and serious violations for training, personal protective equipment, and means of egress from the trench.
This case got some local notoriety in the Ft. Lauderdale area and made the evening news and was followed for a couple of days by the local TV stations down there. And we understand that there may or may not be subsequent criminal action brought by the local authorities.
HDR Engineering, Inc., Omaha, Nebraska. That's the place of the firm. The violation was a Region 3 violation, Philadelphia, our regional office. $1.4 million, general contractor cited willful instance by instance for failing to ensure that five contractors complied with an asbestos standard and for not protecting their own employees who were exposed to asbestos.
Also for not training their own two employees in the hazards of lead and lead removal. This was a case growing out of demolition work at the Pittsburgh Airport.
Egregious cases in the construction industry issued year to date are seven.
In the Office of Engineering Services, our activities there, we are continuing to assist the Long Island, New York area office in the collapse of a million-gallon water tank facility. We are assisting the Washington, D.C. District Office in investigating the death of a worker due to the installation of an escalator during the installation of an escalator in the Metro.
In Charleston, West Virginia, we had an office...we had roof trusses at an apartment construction site that collapsed killing one worker and injuring another. The Terrytown area office is looking at a Yonkers, New York, collapse where a masonry wall of a building under renovation suddenly collapsed, seriously injuring three employees.
Buffalo, New York, we have a worker who was fatally hit by the cover of a water tank when the vessel was being tested for pressure.
And two workers killed and three injured during the demolition of a grandstand structure of a kennel club actually. It's a Greyhound racetrack in Florida. And the office...our engineering office is assisting in the analysis of the planning and implementation of a demolition job down there. That's a situation where the contractor in question has left the jurisdiction of the area office, left the jurisdiction of the region, left the jurisdiction of the United States, and apparently took corporate funds with him at the time.
So this goes well beyond OSHA violations.
A breakdown which at least one member of the committee has indicated some interest in in the past, a regional breakdown, I have joined significant and egregious cases and grouped them by region, to wit, Region 1, we have one such case that falls in either category, Region 2, five such cases. Region 3, 14 cases. Region 4, five. Region 5, 11. Six has zero. Seven has four. Eight has three. Nine has four. And 10 has one. For a total of 48 combined significant and egregious cases. And I'll break that out for anybody that would like more detail on that.
The next item, and maybe this is an appropriate place to break. The next item we have a request from a Stephen D. Cooper, who is a member of this committee, a letter to you, "Dear Chairman Ringen: This is to request that an agenda item for the June meeting of ACCSH include a report from OSHA for a number of fatalities in construction for each region and area office. The report should include the number of inspections (tape stopped) ..."
...construction workers on my presentation and Mr. Cooper's presentation would be about five minutes on the Washing Facilities, and that's been placed elsewhere on the Agenda.
I would be happy to address, and I have some slides to go over Mr. Cooper's first two requests, but I would like to be excused at this time and return and do that. In the interim, I would like to move on and do the Standards Update portion if we can.
VOICE: You're going to hold us in suspense.
MR. SWANSON: Yes. To be continued.
VOICE: All right.
MR. RINGEN: Okay. Thanks, Bruce. Enjoy your meeting.
We will then continue with the presentation by Roy Gurnham on the Standards Update.
VOICE: Roy's not here.
MR. ZETTLER: Good morning. My name is H. Berrien Zettler, I'm Deputy Director to Bruce for the Directorate of Construction since last April.
I am going to...Roy is on leave. He's on vacation, so I am going to be making the presentation on the Standards...Construction Standards Update.
I will not address at this time the Confined Space Standard progress because that's an item that the work group on Confined Space will address later in the Agenda.
So I'll work through...and I'm going to deal not only with the standards themselves specifically, but I'm also going to mention a couple of issues that are related to standards processes, and I'll mention those as well.
First of all, with respect to the Safety and Health Program Standard, or Management Standard. OSHA, of course, as you know, has been given a copy by ACCSH of a recommended text. We have been working on that text. We have a project officer, Mr. Mark Heggiman, assigned to that project. He also is the person assigned to SENRAC, so he has done a good bit of work in reviewing the text that ACCSH has set...has given to us in preparation for writing a preamble.
We are in the early stages of writing a preamble for that standard, in the very early stages. We will not probably have a preamble ready for review for another...probably another four to six months and perhaps longer, depending on what happens with the SENRAC.
Unfortunately, as Bruce may have mentioned to you, and I don't know whether he got this far in his presentation or not, but unfortunately, we have a large number of vacancies, four of which are in our Standards Office. But we're hopeful...we have all of those jobs announced...we are hopeful that we will be able to make some selections over the next month or so and have that office back up to full staff.
I believe that the work group on Safety and Health is meeting tomorrow anyway, or tomorrow afternoon I believe it is anyway, and we will make a...you know, we can share with them what we've done.
On the steel erection. I am pleased to announced to ACCSH that the document, the draft document, proposed standard has been completed, has been sent now for final review by the SENRAC committee. They are due to have their reaction to the SENRAC document back to us by July 7th. We anticipate and have scheduled a signing ceremony with the Assistant Secretary on the 24th of July. So we are very, very pleased that we've finally been able to move that forward. We are very pleased that we will be able to have that in the Federal Register in all likelihood by the end of the fiscal year, which is...I mean we're real pleased about that, and I think the real thanks is due to the SENRAC folks who worked on that standard so hard. It took us a long time to work through, close to 18 months, to work through that document and get it to where we were able to submit it now to the Assistant Secretary.
On Fall Protection. Our project officer, Barbara Bielaski, whom I'm sure many of you know, was hired by Marta Kent in the Policy Office, Economic Regulatory Analysis Office, was hired and promoted by Marta. And so we are now left without an experienced project officer to work on Fall Protection. Marta, however, has graciously indicated to us that we can continue to use Barbara until such time as a Federal Register document is prepared, which we hope still will be able to be completed by the end of the fiscal year.
So we are intending to put forth a draft for ACCSH's consideration perhaps...I said at the end of the fiscal year. It's more like at the end of the calendar year. We hope to have a draft document prepared for ACCSH's review, hopefully by the time of the next meeting and perhaps even beforehand. We may be able to distribute that for your comment even before the next meeting. So we'll try to do that.
This particular document, the document that we are drafting for Fall Protection, is in response, as many of you will recall, to a Congressional mandate to open the Fall Protection Rule. There will be a minimum of new text, and most of that will be relating to the regulatory paperwork stuff.
The substance of the publication will be raising issues. We have dozens of issues that have been raised by various sectors of the industry relating to Fall Protection and Subpart M and how it might apply to their particular sub industry. We anticipate that we will have a very large number of issues which we will present to the public for comment. The major part of that document will be exactly that, as I say.
Subpart L, the Scaffold Standard. You will recall that there was a part of Subpart L, and the so-called Appendix B, relating to erection and dismantling of scaffolds having to do with fall protection and access, the two elements that are the most difficult elements with respect to the requirement which will become effective at the end of September, the requirement to provide fall protection and safe access during the erection and dismantling of scaffolds.
You all have worked very closely with us up to this time. We also have a new project officer on that project. Unfortunately Mr. Ted Tordarski, who many of you know, was hired by Safety Standards, and is now working on the generalized or General Industry Safety and Health Program Standard.
So he is not available to us. Roy Gurnham has pretty much assumed the responsibility for handling the scaffold-related issues. He has a staff person who is working or helping him with that, but is not what we would consider to be an experienced staff person yet.
So, again, we are feeling the pinch of our lack of staffing.
However, we are going forward with that with your cooperation, with ACCSH's cooperation, and we hope that we will be able to make some progress on that and have an acceptable document by the time the standard goes into effect.
There are a couple of other issues relating to roof bracket scaffolds over which the agency was sued. And we have to make some modifications to that, which we are also going forward on.
There are a couple of other minor issues on the Scaffold Standard which we are going to try to correct at the time that the rule-making is done for the roof bracket scaffolds.
We don't have to do further rule-making for Appendix B. It's a non-mandatory appendix and we can develop the guidelines, which is all that appendix is intended to do. Guidelines for erection and safe access and fall protection during erection and dismantling of scaffolds, that's a non-mandatory appendix indicating good practices which we, as I say, do not have to do rule-making on.
A couple of other issues that are related to the standards but are not particularly standards issues have to do with a couple of task forces which the Agency is working to put to work together. One of them has to do with tunneling, which we've been working on now for about six or seven months to formulate a policy, a compliance policy, with respect to tunnels. The two main issues are micro tunneling and hazardous atmospheres within tunnels. Both of those are problems for us in terms of the way the standard was written, the current standard was written, and we are attempting to work out a compliance position on both of those issues.
Then the other task group that we're putting together is on communications towers. We have at the urging of the National Association of Tower Erectors, we have been made aware of the fact that there is a very large number of communications towers that will be put up over the next several years. I mean we're talking about numbers of over the next two years of in the neighborhood of four to five hundred thousand towers. A very, very large number of towers.
This is so that wireless communication can be done from any part of the country, which it cannot be done at this...it can be done in the major metropolitan areas but cannot be done in rural areas.
In any case, because of the popularity of wireless communication, the utility companies are doing an all-out effort to put up towers. They suggest that every couple of hundred miles along every interstate highway there will be a tower put up.
When something like this happens, of course, the people who have been in the tower business for a long time cannot handle that volume of towers. And as a consequence of that, there are probably going to be a lot of people coming into the field of tower erection who may not have had the kind of experience that the long-timers have had. And there is some concern, because we've had a number of tower incidents, including fatalities, where the towers have collapsed or people have fallen off the towers. We have had a number of those over the last several months, and we anticipate, as does the National Association of Tower Erectors, we anticipate that that will become a more frequent occurrence and it's imperative on the Agency, since that will be part of the Subpart M rule-making. But because it's going to take a while for us to get a final rule in place, it was felt to be important that the Agency establish a compliance position with respect to towers and let the world know about that.
So we are in the process of...we have already had one meeting of what I would call an executive-type task group to sort of define the exact areas where we think that the biggest hazards are, and what we would like most quickly to address.
A working task group has been assigned and will be brought into the national office to work on developing a compliance position, a compliance directive, relating to enforcement during tower erection that will come in during July and will work over probably the course of several weeks to get out a compliance directive which we will then spend a number of months doing outreach on so that we can let everybody in the industry know those who are active in tower erection, let them know what the Agency's enforcement position will be, so that they can be prepared to address the safety conditions which we think are most imperative to be addressed. And then we will start an enforcement program probably in the late fall.
That will probably limit our activity to certain sections of the country to start off with, but we will gradually expand to the whole country to do these. We are encouraging...we will be encouraging the state plans to do the same kinds of thing, to also have an enforcement program as well on construction towers so that we hope that we'll be able to cover the activity fairly well.
The final item that I would like to address is the so-called paperwork reduction requirement. The Agency, as you know, in fact the whole government, is under a mandate to reduce the paperwork burden on the public. Every agency has been required to meet a certain quota with respect to how much paperwork reduction we can put into place.
There are a number of certification requirements that will be expiring at the end of this year. There are approximately 10 of them in construction. Those things run on a three-year term, if you will. OMB authorizes the collection of data, a paperwork burden, for a three-year period, after which time it has to be revalidated with OMB.
There are more than 10 paperwork requirements in the construction standards, but 10 of those are the ones that happen to be on the cycle that expires this year. So there will be 10 of those expiring. We are working on paperwork packages in line with the recommendation of ACCSH that we not reduce the...that we not get rid of the certification requirements in the Construction Standard, at least not at this time.
We are working to develop packages for OMB which will request that all of these certification requirements be approved for another three-year period.
We will, however, no doubt have to take another look at a comprehensive listing of all the certification requirements and determine which ones of those are dispensable and which ones we believe are not dispensable, are essential.
And we're going to have to probably look through each one of those and make some decision, because I feel certain that the construction industry, that we will be required to reduce the paperwork burden on the construction industry as we are being required to remove or reduce the paperwork burden on other General Industry and on maritime.
So we will be coming back to ACCSH, probably by...perhaps by the next meeting at which time we hope we'll have the paperwork packages completed. We have to have them completed or they expire automatically. The certification requirements expire automatically if you don't have the paperwork package into OMB at the appropriate time.
So we will probably be coming back to ACCSH with a complete listing of all of the certification requirements that we have now and asking you all to walk through those with us to determine the priorities and which ones are more important than others, and while we will make every effort to keep as many of those certification requirements as we can, I'm not sure that we're going to be able to keep all of them. So that's why it's important to try to attempt to establish some kind of priority.
That's basically all of the comments or remarks that I wanted to make to you all. Of course I'm open for any questions, Mr. Chairman.
MR. RINGEN: Thank you, Berrien.
VOICE: Is it possible to get that list before the next meeting, or the certification sent us?
MR. ZETTLER: Yes. We actually have the list already made up. We can send those out, yes.
MR. RINGEN: Steve.
MR. COOPER: I think it only shows good judgment on Bruce Swanson's part to have Donnelly do his report for him. However, I've got a couple of questions.
On Subpart L, normally you put out a construction digest, H. Berrien Zettler, and we don't have one for the Scaffold Standard, and we really need one badly. You know what I'm saying?
MR. ZETTLER: Yes.
MR. COOPER: So I guess we could just put down as a complaint...
MR. ZETTLER: Well, I can even give you a bit of an update if you want one on that.
MR. COOPER: I do.
MR. ZETTLER: Let me give you the status. This is a project which you, Mr. Cooper, and others have raised previously.
We actually have a draft of the so-called Orange Book, the small handbook of all of the standards...they are not all of the standards but the ones that are most commonly run across in construction.
We actually have a redraft of that. We had a redraft quite some time ago. We actually had a redraft last summer. Unfortunately, the people who redrafted it failed to recognize that there was a new Scaffold Standard. And so all of the requirements in the handbook were based on the old Scaffold Standard.
So we have put, Ms. Villanova, whom those of you who know Ms. Villanova, know how thorough a job she does. She has gone through that booklet and addressed the Scaffold Standard requirements that were mentioned in the original redraft of that booklet, and they have now...they are almost ready for proofs. So we should be able to see a proof copy of that document within the next several weeks. That's the one document.
The other document is we are also developing and have in fact also made great progress in developing one of the little booklets specifically on scaffolding. This, unlike the other, this is in a question-and-answer format, unlike the way we've usually presented these booklets. We think that it will be much more useful to have a kind of question-and-answer format to it, but we go through all the requirements of the Scaffold Standard in a question-and-answer kind of way.
We are also, for the first time, appending to that booklet, that publication, the text of the standard. We've not normally done that but we're doing that in this document. That document is also...we've done our final review on it. I would imagine that also within the next several weeks that also will be ready for proof copy. At which time...once we've reviewed the proofs, we will go ahead and send it off to the printer.
I am hopeful therefore that in another four to six weeks we will have both of those documents ready for distribution.
MR. COOPER: On the tower and fall protection, new programs are being pushed to go out and enforce by the fall of '97, and they're going to develop the manner in which this fall protection program will take place?
MR. ZETTLER: Yes.
MR. COOPER: Is that fall protection program going to be run by this committee?
MR. ZETTLER: It is. When we get...what our intention is, as I said, we are hopeful that in mid to late July...I don't know the exact date, we will have the working task group in here to develop at least the first draft of a compliance document.
That will go through whatever review process it goes through, which includes review by the field and all to get it to a point where OSHA is internally satisfied with it.
My belief is that that can happen toward the end of August. We will then distribute to ACCSH for your comment, if you wish, at the next ACCSH meeting, or informally if you want to move faster than that. We will make that document available for your review.
Actually I don't think...I think that it would be fine to do it at the next regularly scheduled ACCSH meeting because at best we will...we actually will not start the enforcement part of this communication tower program probably until late fall or even early winter, because we want to do an outreach program of at least a couple of months, maybe give or take a few weeks. We want to do an outreach program to make sure that those engaged in that kind of work will know what OSHA's enforcement policy is.
So we will not be...even under the best of circumstances, we won't be actually starting a compliance program or an enforcement program probably until, as I say, December or January.
But absolutely, yes. That document will come to ACCSH for your input.
MR. COOPER: Thank you.
MR. RINGEN: I know there are some questions from the audience. What we will do is we will take questions from the audience right before lunch, and if there are any, just give it to us in a brief note, and we'll take care of it then.
MR. SMITH: Berrien, on the Scaffold Outreach Book and the new Construction Digest Book, which you are about ready to publish, if somebody outside the Agency going to look at this so we don't have the same problem that we had with the Homebuilder's document that was showed to us at the last meeting? So we can get out of tunnel vision and so if somebody looks at it...
MR. ZETTLER: Sure.
MR. SMITH: Looks for errors or...
MR. ZETTLER: Yes, indeedy. Probably the best time to do that will be when we have it ready for proof so that you'll have a look at the...after it's already had all the comment that it's going to get, and you won't have...you'll have a fairly firm document to be looking at.
Yes, indeed. We will bring that to you.
MR. RINGEN: On the towers that you talked about, there are two different kinds I think that are being put up for...a number of different kinds. Some are the communications towers for cellular phones which are fairly short or low towers...
MR. ZETTLER: Right.
MR. RINGEN: ...about two or three hundred feet I believe.
MR. ZETTLER: That's correct.
MR. RINGEN: And then there's a whole different category of towers which are these super high towers that are being used for the new type of television broadcasting, I think it is...ACCSH
MR. ZETTLER: Right.
MR. RINGEN: ...that goes up to 2000 feet.
For those types of towers, I believe there are only a couple of qualified contractors in the U.S., and that's where there are some extraordinarily high hazards involved.
Are you looking at that specifically to make any kind of provisions, because that's where the demand way outstrips any of the supply that exists of competent installers?
MR. ZETTLER: Yes. I should have made that clear. And I appreciate your pointing that out.
There clearly are...the vast majority, as I understand it, the vast majority of the four to five hundred thousand towers that we're talking about are the first category. Of the 200- to 300-foot towers. Probably close to 90 percent of the towers to be built will fall into that category.
But Dr. Ringen is absolutely correct. There will be a large number...I mean 10 percent of 400,000 is still a lot of towers...that will be the very large towers. The 1000, 2000, and sometimes even more than that, towers.
OSHA believes, and I don't know, you know, the future will show whether our belief is correct, but we believe that because of the specialized skills and requirements for building those very tall towers that the qualified people are the ones most likely to be given those bids. At least we're certainly hopeful that that happens.
We are working very, very closely with the National Association of Tower Erectors who have actually already given us a draft Safety and Health Standard, or proposal, which they are hopeful that we will use as the basis for our Subpart M standard rule-making.
I think that we are...even the qualified people on these very tall towers, even those people have accidents. In fact, as I'm sure some of you know, one of the most qualified people in that business had a tower collapse several months ago down in Texas. And I mean even the most skilled people have difficult with the really tall towers.
We hope that...I mean the National Association of Tower Erectors is the association for those erectors who have been in the business the longest time, and we are hopeful that we'll be able to work very cooperatively with them, but at the same time, recognize the deficiencies in their standard.
It is the belief of the industry, which is not yet been fully agreed with by the Agency, but it is the belief of the Association that on these very large towers, it is not possible to provide fall protection under every circumstance.
But the Association has admitted to OSHA, at least this is my understanding of what they've said, they have admitted to OSHA that 98 percent, or using a big number, I mean a very large number, most of those towers by far can be built with fall protection provided.
So the task of the Agency is going to be to, first of all, confirm that indeed the Association's position is true or not true, on the one hand. We're also going to have to find out if, or have to determine, if it is true that there is some small number of towers that cannot be protected with fall protection at certain stages of the erection, then we will have to make a determination as to what we believe ought to be done in that kind of a circumstance.
It's not going to be a simple...an easy fix on those. It's very much like steel erection, and, you know, it's like scaffold erection too. I mean you are at the leading edge, so to speak, of the construction, and it becomes very difficult to design a fall protection.
On the smaller towers, it's not nearly of the same problem. I mean it's much simpler to provide a fall protection with the smaller towers.
MR. RINGEN: I believe the high tower number is more like 1 percent of the total...
MR. ZETTLER: Could be, yes.
MR. RINGEN: Steve.
MR. COOPER: Are you only going to look at fall protection on the tower?
MR. ZETTLER: That will be our focus.
MR. COOPER: Because you're going to have...one of the problems obviously is collapse, which is...
MR. ZETTLER: That's correct. The focus will be on fall protection, but we are...in fact, that's, as I said, that is exactly the accident that happened down in Texas, where the tower actually collapsed. And there are stresses put on that tower during erection which the tower would not have after it's built. And sometimes the guying of those towers is inadequate to the construction forces, although it's perfectly adequate once the tower has been built. And those are real problems.
And often times the erector sort of takes the word of the utility that those guy wires have been properly designed, and that's one of the issues that we will address.
MR. BURKHAMMER: The tower erection business is interesting, especially with the communications towers, because it's a low-bid world. And there's a lot of new contractors that have started up just for this purpose.
MR. ZETTLER: Absolutely.
MR. BURKHAMMER: And they are coming in at 5, 10, 15, as much as 20 percent below the regular tower erectors that have done this.
The second problem I think OSHA has is that these are three- to five- to seven-day towers. And they're gone. And by the time you get a complaint or by the time you decide to go look at one, they're going to be gone anyway.
And on these large towers, one of the new technologies they are looking at is helicopter erection, and a lot of these towers are going to be in very high elevations to give them a bigger spread. And when you're looking at helicopter erection, you are looking at wind shears and all kinds of problems with these tower people that are up there waiting to get the next piece and put it in.
So there's a lot of things you need to consider here, aside from...and the big towers are also fast track towers.
MR. ZETTLER: Absolutely.
MR. BURKHAMMER: I think you need, when you're considering this, take a look at a couple of things. One, do you have the resources to even get out to these towers before the guy is gone or killed somebody and he's in another tower the next day, 200 yards down the road or two miles down the road.
And the second thing is on these large towers, of all the new technologies that they're putting in place to erect these things. And I think you're going to see things that you've never seen before.
MR. RINGEN: It seems to me that these very high towers, by the nature of the work itself, constitutes virtually everything that we would put in to the category of an imminent hazard. And it seems to me that it would make sense to have some special provisions made in terms of...
So if you're ever talking about permitting, and that kind of thing, and advance notice of work to be done, that would certainly be one of the areas where it...I can't imagine an area of work where this should apply more than in this particular area.
I think that would be a legitimate thing for OSHA to expect to have an advance notice of this because the biggest risk with regard to building these things are going to be for the workers out there. And it's going to be very great.
MR. MASTERSON: At the last meeting, Mr. Watchman had commented on safety and health programs that he wasn't sure that there was a need for a separate standard for construction. And you just said that the preamble was being started.
Do I take that to mean that there will be a separate standard?
MR. ZETTLER: It is my belief that Greg Watchman is going to address that issue in his comments to you this afternoon.
As a practical matter, however, the Directorate of Construction believes that we have a responsibility to continue working on the draft documents which ACCSH has recommended to the Agency, and so we are continuing to do that. And I have to tell you that we are not doing it with the same priority that we would be doing it if we had a clear direction...a clear direction from the political leadership of the Agency.
This has been a very, very difficult issue for the Agency to deal with. There are many, many, many ramifications, which I'm sure that you all are aware, probably more aware than I am. But there are many forces on this as to whether there should be a separate standard, whether the Construction Standard should be first. Whether the General Industry Standard should be first. The General Industry Standard is running into considerable amount of opposition. There's just a lot of factors at play in this thing which make it a very complicated decision for Mr. Watchman.
I am hopeful that he will address this very forthrightly. We have given him a draft document in response to a letter from Dr. Ringen, your chairman. We have given him a draft response to that letter, which hopefully he will discuss this afternoon.
But I am not in a position to be able to say, you know, what the outcome of this is going to be, but I do say that the Directorate of Construction believes that we have a responsibility until told not to to continue to work albeit more slowly than we might otherwise work on the Construction Safety and Health. That is not an indication though that a decision has clearly been made.
Mr. Watchman will address that this afternoon I hope.
MR. RINGEN: I think you got a copy of the letter that he sent, two months ago.
MR. MASTERSON: No. I never received it.
MR. RINGEN: I apologize.
VOICE: On the helicopter erection, it sounds like the FAA might be an agency to coordinate with because the pilots are going to be covered by them and the ground workers will be covered by OSHA.
MR. COOPER: Berrien.
MR. ZETTLER: Yes, sir.
MR. COOPER: Our association and others have helicopter training...training to erect structures by helicopter approved by the Department of Labor already, and others do too.
MR. RINGEN: Maybe we can get hold of a copy of that letter.
MR. ZETTLER: Yes. I thought that we had.
It's not under the rubric of Standards Update, but I thought that some of you might be interested to know where we are with the Training Grant publication in the Federal Register which we published last month or early this month I guess.
MR. RINGEN: I guess the issue is the whole subject of this study of the homebuilding.
MR. ZETTLER: Right. The Agency, as many of you know, the Agency was given $2 million...actually the Department was give $2 million in the last appropriation to study the practical application of the current Construction Standards to the homebuilding industry. And Dr. John Dunlop, who many of you will be familiar with, has been asked by the Secretary to coordinate the development of a subset of the standards which are most applicable, most commonly applicable, to the homebuilding industry.
As a part of that exercise, the Agency decided to put forth a solicitation for bids in the Federal Register for parties who might be interested in conducting training in that regard. Training with respect to the standards applicable to homebuilding.
Now, all of the standards, of course, are applicable to homebuilding. But there are some of those standards which are more commonly appropriate to the homebuilding industry than others. And the purpose of this exercise is to identify those, and that comes under Dr. Dunlop's purview.
The other part is the part, the training part, to actually teach people how to deal with these safety and health issues in the homebuilding, and this means teaching the people who are engaged in the industry, people who are involved in the industry. Both at the contractor, at the subcontractor, at the employer, at the employee levels, and there will also be an element of training the compliance officers on the standards, the kinds of safety and health conditions that they might run into on homebuilding sites.
The Agency does not do a large number of homebuilder inspections or citations at this time. We do expect, however, that over the next year or so we will be paying a little bit more attention to homebuilders. I'm not prepared to tell you how much more attention, but we will be paying some more attention to the homebuilding industry and attempt to create a more evident OSHA presence on those work sites.
The Federal Register notice soliciting applications for that training effort was published, as I say, in the Federal Register. The closing date for those applications is August 1st. So far, just so far, we have had requests for application packages in the neighborhood of 30 or 40 organizations. We expect that we will probably get 30 to 40 more.
I don't know that all of those people, of course, will return their application to OSHA. We are expecting that we will probably have something in the neighborhood of 20 to 25 of those application packages will be returned to the Agency.
In the first week of August, we will be evaluating those applications and trying to narrow down the field of potential grantees and hopefully will be able to make a decision by the end of August where our established goal is by the first of September we expect to have reviewed those application packages.
MR. RINGEN: Thank you.
Next is Steve Cooper who is going to talk about Settlement Agreements.
MR. COOPER: Do you have an OSHA representative at the table or did they go home?
MR. RINGEN: I think they went home. Do you want to wait with this until we have an OSHA representative?
MR. COOPER: No. I want to speak directly to them, not the committee, but to them.
MR. RINGEN: Okay. Well, we have a problem. We don't have a representative from OSHA here.
MR. COOPER: We can play like they're here.
MR. RINGEN: We can make some decisions.
Well, I don't know how we can get an OSHA representative here.
VOICE: I don't have to have one.
MR. RINGEN: Okay. We'll wait for one minute. Then let me see if I can find an OSHA representative.
VOICE: There must be somebody here that works for OSHA.
MR. RINGEN: We can proceed, Steve, with the Settlement Agreements, and we're now on the record.
MR. COOPER: My name is Steve Cooper. I'm with the Iron Workers International Union and a representative of this committee.
And I believe it was on March 13th, Mr. Chairman, we had discussed Settlement Agreements with this committee, and Ray Donnelly was supposed to come with these problems back to this committee in response to questions that we had or proposals that we had to evaluate OSHA's policy as relates to Settlement Agreements.
But my question is to Mr. Swanson. Has there been any communication with Ray Donnelly as related to the policy for Settlement Agreements?
MR. SWANSON: Yes, there has been communication. Yes, they are continuing to work on it. No, they are not ready to come and make a public presentation that would expand on what they gave last time they were here.
MR. COOPER: Therefore when will they be available?
MR. SWANSON: I can't answer that on their behalf, but in late summer, fall, is what they anticipate. A lot of dates are sliding around here at the present time, Mr. Cooper, and that one might slide again.
MR. COOPER: We might have a new name by then.
MR. SWANSON: Right.
MR. COOPER: Well, I'll be polite and not...
MR. SWANSON: Thank you.
MR. COOPER: ...ask you any further questions since you're not capable of giving me a good answer.
I'd like to point out to the committee that OSHA recently had a settlement, a very large settlement, of a case outside of the construction industry. Some of you may have read about it, which had to do with a production or an operation at the DeCoster, up in New England. And pursued a policy which we wanted the construction industry, and which is the whole case of settlement agreements. They settled a case in General Industry with a very hefty penalty. But in addition to the penalty, they agreed with the employer for reduction with a contractual agreement that the employer in General Industry provided a full-time safety director. Much training. Employed a bilingual employer liaison, generated employee participation. Did some hygiene things with showers. Installed safety and health management programs and independent aerodynamics consultant with the proviso that an independent consultant will conduct unannounced inspections which could result with the remaining balance of penalties to be implemented.
Now, that is what OSHA negotiated with the employer, and that is exactly the type of policy in which we are proposing to be used in construction, at least I am proposing, to be used in construction, if OSHA and the employer wish to negotiate in that manner. So whereby a penalty is imposed, that is negotiable.
In this case, which I just brought up, the employees in this A production facility up somewhere in New England, which is not in our industry, those employees there, whoever they are, really got something out of the process. They really got something out of the process. Something happened on that job site, and it was not a real large check going from the bank to the General Treasury. What they got was a lot of conditions changed. They got a lot of systems put in. They got all kinds of safety and health services plus improvements, reduction of hazards, due to that settlement.
So I don't think it's...I'm not going to be as windy as Berrien Zettler was this morning. But that's what I and many people on this committee would like Bruce or the new Assistant Secretary to adopt as a policy. It's in the transcript. I will pursue it no further at this meeting.
Thank you very much, Mr. Chairman.
MR. RINGEN: Any comments about this?
MR. CLOUTIER: I think the key to this settlement was what many of us, Mr. Cooper, said the penalty, instead of going to the General Treasury, went to some training and education, hiring qualified people, and putting it back in the work place for the employees, for the employer, and everybody wins. Typically you get a citation, you go and negotiate the penalty. The penalty goes to the General Treasury and nobody wins.
And this is definitely the right way, where the funds, if they're going to get a penalty reduction, those funds, even the penalty, should go towards training and education, because that's where everybody wins.
We've had those battles in the past and we just haven't been able to meet them.
MR. RINGEN: That case up in Maine though, what kind of employee involvement was there in the negotiations over the settlement agreement, do you know?
MR. COOPER: I don't think there was...I don't know. But I don't think there was employee involvement in the negotiations to settle. Of course, the attorney, Mr. Jones, he would know more about that.
MR. RINGEN: Ana Maria.
MS. OSORIO: I have a question.
I just know in general about that case, but in terms of the unannounced visits and all that, that's by the paid consultant that the company is paying for? Or where is the unannounced visits?
MR. COOPER: The person who should be discussing the contractual agreement that this company has with OSHA should be the Solicitor's Office, not myself. But under their Bulletin, which many people read the DeCoster settlement with OSHA, they agreed that...one of many things they agreed upon was an outside consultant who would monitor the operation. And if they didn't abide by their contractual agreement, that the entire penalty would come back.
MS. OSORIO: Right.
MR. COOPER: This penalty was a couple of million dollars originally. Bruce, wasn't it something like that?
MR. SWANSON: Correct.
MR. RINGEN: I think your interpretation is correct.
MS. OSORIO: Yes. I think my point is that if there's an outside contractor, that he or she needs to be totally independent and OSHA needs to be brought in if compliance doesn't go...not compliance in the legal sense, but if the stipulations they agreed to aren't, you know, complied with, and I'm afraid that if the company just hires a consultant and then they just talk to each other and OSHA is out of the loop, so, you know, I am principally agreed with getting real benefits from these types of settlement, if there is appropriate follow-up to make sure that these actions are taken.
MR. COOPER: We discussed that last time, Mr. Chairman, what she's brought up. Of course, keep in mind, this is an agreement between OSHA and the employer, and as the Chairman brought up, how much employee involvement occurs here, whether they're union or non-union or whatever. Obviously the consultant that is hired, I doubt very much that OSHA would agree that the employer's brother-in-law would be the consultant. We've run into that before. I would hope that it would be a consultant mutually agreed upon by the two parties.
MR. RINGEN: Stew.
MR. BURKHAMMER: I think, Ana Maria, your point is well taken. And I think that they've incorporated some fairly good safeguards in terms of OSHA evaluating the performance under these settlement agreements to make sure that they're lived up to. And the penalty for not living up to them are, of course, enormous, because in addition to now undertaking all the costs that you have to do in order to comply with the agreement, you would then have a penalty, the fine, reinstated.
So the incentives for doing right under these things are certain very strong.
MR. COOPER: In closing, I just want to point out to the members of the committee and also Mr. Swanson and his Directorate, we are talking about settlement agreements on -- citations. We're not talking about a couple of million dollars. We're talking about $500, $700 citations. They don't need to be multi-million-dollar operation where you normally see settlement agreements in the construction industry.
It would benefit the employee if the Federal Government, a regulatory agency, does find what they consider hazards and negotiations go on between the regulatory agency and the employer to settle this agreement. Even if it's a small issue. Let's say it's two or three citations and they're $500 a piece. That's $1500.
I'm saying that should be allowed to be negotiated. Maybe it's $500, you bring in a consultant for $1000 and he gets training on circular saw.
I just want to make that point. That's it.
MR. RINGEN: I think you understand, Bruce, that this is an issue that there's pretty strong consensus on this committee about.
MR. SWANSON: Then maybe I should remain silent.
MR. RINGEN: No. I don't think so.
MR. SWANSON: And I certainly do not sit here as the designated federal official to argue with an advisory committee. I'm here to get your advice. And I've heard it and so note it.
MR. RINGEN: Having said that...
MR. SWANSON: Having said that, there are those elsewhere in the community that equally strongly state the belief that an employer has an obligation to do certain things to maintain a safe and healthful work place and to train employees as appropriate for the task assigned. And the employer should not have the opportunity of waiting until a compliance officer, once every eight years, opens the doorway and ascertains that those responsibilities are not being complied with.
So now rather than talk about a penalty, as provided for in the OSHA Act, we will talk about how that penalty money can be spent on training of employees, an obligation that you had anyhow.
And I am not necessarily stating that as my own belief, but just as the counterpoint to what you point out. I heard you loud and clear, and there's certainly a sound argument in your comments, Mr. Cooper.
MR. COOPER: There are numerous agreements that OSHA has already reached that are not covered by the standard. Nowhere in the standard does it show you they have a full-time safety director. That was an agreement. The agreement with the union in Boston, that the union would now require 10-hour OSHA training. That's not required by 1926.21. And on and on and on.
And the settlement with the DeCoster is the same way. They have a bilingual person in there to help resolve problems, safety problems. That's not required by it. Well, it is kind of required by the standard.
But I am saying, yes, training is required by the standard, but additional training could be part of that settlement that would meet the requirements. Additional type of training.
MR. COOPER: Just a question. Is the attitude that the General Industry could have different settlement agreements in construction?
MR. SWANSON: No.
MR. RHOTEN: Okay. Then maybe, could we see the guidelines for the General Industry for their settlement agreements? They have that no doubt. Or they're doing something there. They just made a $2 million settlement. There must be some guidelines or...
MR. SWANSON: What Mr. Donnelly is working on for the General Industry, it's my understanding, is an OSHA-wide policy that will institutionalize or make permanent, codify, what was done in DeCoster and similar cases. It will establish as policy what we have been doing on an ad hoc basis, you know, as the factual situation will allow us to do. There are many benefits in the individual negotiation, like DeCoster was.
And as Mr. Cooper correctly points out, many things done that could not have been done if we didn't have the citation. And, you know, you can be more creative. And those were good things. And it should be used that way.
What General Industry is working on though is a policy that will drive that OSHA wide in the future. They have not, it's my understanding, they have not put that in a document that they can come here and share with us which is why Mr. Donnelly is not here this morning. Even for General Industry they do not have one, Bill.
MR. RHOTEN: Okay.
MR. RINGEN: Any other comments on this matter?
Well, Bruce, should we go back to the original agenda and get you to come...you know, you left us in suspense.
MR. SWANSON: Okay. And in my absence, I'll note that somebody stole the only copy of the Steve Cooper letter to you that I had. I suspect Mr. Cooper, but I don't publicly accuse him.
MR. COOPER: I forgot I even sent it so...
MR. SWANSON: Let us go back to what I think we...I think I have most of the salient points memorized.
One of the issues that was requested was an OSHA CSHO count by area office by specialty. And for the committee, I had one of those put into your folders this morning. And you'll see the breakdown in 101, Boston Regional Office, 1 indicates that we're talking Region 1. 211, the New York Regional Office, we're talking Region 2. All the 200 series are New York offices. And et cetera.
You can walk through this. You will see the total number of CSHOs. It is broken down by safety, health, supervisor, and 11C investigators.
The one subpart under this that Mr. Cooper requested and that I am unable to supply is the construction specialist by area office, or words to that effect. And the reason, of course, that I am unable to supply that is because we have no such category. OSHA compliance officers each receive training in many areas. Many compliance officers have received training in construction-specific areas. There are some compliance officers who do nothing but construction inspections, but they are still compliance officers, CSHOs. They are not construction CSHOs. And it depends upon the original administrator's attitude or such things. It depends upon the area director's attitude towards such things. And it depends upon individual personalities and strengths.
OSHA has, for 27 years, maintained the posture that there are no unique specialties. Even in the construction industry it's not a unique specialty. And is resistant to any suggestion that there be a change in that area.
I know that the present acting Deputy Assistant Secretary Stroshiem, and he's here on loan from Region 9, and Mr. Stroshiem has several compliance officers that do nothing but construction work and he believes that they do a much better job on a construction site because they do specialize in that industry or activity.
He would like to see, and it will be part...is part of our strategic plan for the upcoming fiscal year that we intensify our training in the construction area that each regional administrator designate X number of compliance officers to have their construction skills polished and intensified next winter during the down time for the construction industry in much of the country.
And something along those lines will be done, Mr. Cooper. How many will be trained, how intensely they will be trained, how long that training course will be, and specifically what will be covered are all yet to be worked-out details. But what is not a detail to be worked out, at least in the mind of Mr. Strosheim, is that that training will take place, and the concept will be followed and pursued.
And even if for administrative purposes we don't give anyone any new job titles, at least there will be people out there that will look more like construction compliance officers rather than just compliance officers.
I hope that satisfies that portion of the question.
MR. COOPER: Sure. Yes, it does.
MR. SWANSON: Thank you.
MR. COOPER: OSHA does specialize those. Seven years ago when -- we'd proposed back in '80 that there be such a CSHO designation as a construction specialist. It was approved by OSHA and when to the Secretary of Labor which was then disapproved for budget reasons, whatever that means.
In most areas, I don't know what that letter...since you've conveniently destroyed it...what that letter said, but I know darn well there is no such title has construction specialist in the CSHO area. I think that the letter would have implied how many CSHOs in a given region have construction experience as it relates to time investigating construction.
However, thank you very much for your report, Bruce. It was great.
MR. SWANSON: I have yet more, Mr. Cooper.
MR. RINGEN: Any questions or comments about this?
Just a quick think, Bruce.
What about these regional construction coordinators that you now have? Do you have any results or experience from having them out there that's favorable unfavorable or anything like that?
MR. SWANSON: The construction coordinators, there are now 10 construction coordinators out there. Each regional administrator has named someone. I think without exception they are all regional office personnel. And they differ in their job titles. I know that at least one, our region uses the deputy regional administrator as the construction coordinator. I know that several regions...three I believe, use the labor liaison person as the construction coordinator. And other...13 and 14 positions are named as construction coordinators.
These are not people who make inspections, so it really doesn't dovetail although it's related to it, it doesn't dovetail with Mr. Cooper's question on expertise on inspections.
The experience we've had with it, with the concept, I believe it has been a positive experience. We have teleconferences now between my shop, the 10 regional coordinators, the training institute in Chicago, and discuss issues of the day. We had quite an in-depth nationwide discussion on the recent issue of the mushroom caps. And it has allowed us to, I think, react more quickly and with more consistency than...although it might not appear so...than we would have without the construction coordinators.
I think it's a positive way of getting feedback and to wait for regional administrator meetings, and have the same discussion with the regional administrator, you might not get the depth of detail on a construction issue that this named construction coordinator has for his or her region. And by and large, it's been a positive experience.
MR. RINGEN: All right. Do you want to continue with your fatalities? Or what are you going to start with? Which one...the inspection statistics.
MR. SWANSON: Let's do Construction Projects, Construction Inspections, Fatalities last.
Okay. Construction Projects inspected. These are the first two quarters of FY '97. As you can see, the explanation of the increase I think for this crowd, you understand that weather has a lot to do with this industry in much of the country. And those parts of the country where the weather is...
MR. COOPER: Let me ask you this question, because you know it's coming up.
When you speak of construction inspections, and you've been up there at the project, do we take that as one project inspected, or do we take it that you may inspect the project, five different areas, and count it five?
MR. SWANSON: Thank you, Mr. Cooper.
MR. COOPER: Sorry I brought that question.
MR. SWANSON: No, I thank you for bringing that up. It's something that I would like to spend a couple of minutes discussing.
I would like to see this committee, my Directorate, and maybe it'll spread beyond that, start using the concept of construction projects inspected as this is entitled, rather than construction inspections. Construction inspections is, for the reasons that you alluded to, such an inaccurate figure. On a focused inspection, any inspection that commenced as and remained a focused inspection, there is one inspection recorded in our IMS system for an inspection that is a conventional inspection, I wish focus were conventional. But that is termed a conventional inspection. That is an inspection that for 27 years now OSHA has been counting the number of employers that are on a given job site that is inspected. Each of those is an inspection.
So if we had a compliance officer named Steve Cooper and he went on to a project on Monday and a second project on Tuesday, the project that he was on on Monday had five subcontractors on it, it was a focused inspection and qualified as a focused inspection, and it was completed as a focused inspection, Mr. Cooper would turn in a report that indicated that he made one inspection. It coincides with the number of projects that he penetrated or made his presence known at.
On Tuesday he makes an inspection. There are five subcontractors also on that job. That is done as a conventional inspection and a wall-to-wall and other terms that used. Mr. Cooper will indicate...will have an OSH 1 for each of those employers and he will count that as five inspections. The system will count that as five inspections. And that has a lot of negative ramifications in our data-keeping system and our inspection planning system. Did he do five times more work on Tuesday than he did on Monday? And obviously not on the facts presented by me anyhow.
And is there some encouragement for Mr. Cooper to turn every inspection into a conventional inspection, even if he ends up with no proposed citations and in compliance inspection? And the answer is yes, probably some incentive for him to do that. Particularly if he thinks his boss is rewarding him for the number of inspections made.
So if we, as a system, started using projects inspected, he gets one for Monday, one for Tuesday, regardless of the nature of the inspection, it helps us account for how we use our time, not simply as the compliance officer, but as an organization planning how to use our resources.
So construction projects inspected is, although this agency still uses both terms interchangeably, they are not in our world interchangeable like they are at the Ford plant.
So construction projects sort of indicates the number of projects that were inspected by a compliance officer, regardless of whether that was a focused inspection or a conventional inspection. These are the first two quarters of this fiscal year and you can see that in most instances, the second quarter is an increase over the first quarter.
MR. RINGEN: Before you change that, Steve has a question.
MR. CLOUTIER: ...to capture this information and help people on the committee and to help the entire organization, if we listed 1506 sites, projects inspected, covering 3500 employers, covering 20,000 workers, would help everybody out. Since I think that data may be available. If people look at it, you see a 50 percent increase in projects, which is great, but I think there is more to that, but we probably covered 2500 employers and covered X number of employees, and that would help all of us out. And then theoretically break it down by region one step further.
I like by project, but I also how to know how many employers did you cover on that project. You know, if you go to one big project, you can hit 25, 30, 5200.
MR. RINGEN: I think the point that was made last time we met, we had this professor from Boston here. He made a very good point. These are not good...they are used for performance statistics. They show some increase but they don't show much about what it is.
If you think of an inspection as supposing to be a deterrent, among other things, then the probability of being inspected is clearly one of the important things. And if you want a good performance statistic, you would probably get at the probability that any kind of construction site with different characteristics would be inspected based on your activity in the different regions.
Now, that's reaching far and asking for a lot from your data system at this point in time, but I think that's the kind of goal that you should have.
I'd like for this formulation that we heard last time about the probability of being inspected.
MR. SWANSON: There is an obvious problem with that.
MR. RINGEN: There are two at least.
MR. SWANSON: At least two obvious problems, yes.
MR. RINGEN: One is how many sites.
MR. SWANSON: Right. Yes. And there are...let us be candid. If you tap our data and if we were able to shake and bake our data to even disclose something as sophisticated as the probability that if you're in this SIC and are this size and work in this geographic area, that you're going to be inspected, we might identify a whole bunch of folks that have zero probability of being inspected. They exist out there in the construction industry and I'm not sure that your professor would agree that that's worthwhile for us to identify them.
MR. SMITH: Bruce, just by going by that chart, and I mean we're asking questions that you probably can't answer and you're going to do the best you can, but with the second quarter being the red bar and the first quarter being the blue, in Region 3 and Region 6, the inspections sent down.
Does that mean that they're still doing mostly the old conventional inspections, do you think, and in two regions? Because everywhere else it went up. Where they may have switched over to a focused, which is a project-by-project inspection.
I mean I'm trying to read into it what it is too, but I might be asking you questions you can't answer, but they are the two regions that went down.
MR. SWANSON: And I cannot answer that, Bill.
MR. SMITH: Okay. I mean just in trying to guess, I'd guess it would have to be that they're still taking longer, which means they're doing less projects if you determine a project being a job site.
MR. RINGEN: These are only federal inspections, by the way, right?
MR. SWANSON: Yes.
MS. OSORIO: Yes. Well, I think construction is down in some of those areas.
MR. SWANSON: No. Excuse me. Are these state and federal?
MR. RINGEN: These are just federal.
MS. OSORIO: Just federal.
MR. SWANSON: Okay. I thought you were correcting me.
MS. OSORIO: I don't want to go too much into it right now, but I think a lot of these comments it's refreshing to hear because we did have a little mini work group that not too many people attended yesterday, and a lot of these things we came up with, and I had the privilege of seeing some of these slide a head of time, so we have some concrete suggestions for how to better tap the data that's already on line that you have.
And I don't want to take a lot of time right now, and we're formulating our comments, and maybe if we can meet a little bit more today, we can even refine that further.
But, you know, I think that this is a really good first step and I think you've taken a lot of comments that have been said at prior meetings into account, but I think you can go another step further.
MR. SWANSON: I've seen your suggestions.
Let's go on to Construction Inspections for a very limited purpose.
I have construction inspections for you for these two time periods and they're in the inspection format because we didn't have them in the project format. That's why you're seeing them this way.
But what it does tell you, for whatever limited it is, is you can see sharing two identical time periods a year apart that the activity in the construction industry would appear to have significantly increased in the most recent time period.
MR. RINGEN: Is that '95?
MR. SWANSON: Yes. But the shutdown was, you know, December/January, much of the country... but yes, you're right, with the shutdown.
Can we go to this one, John? Are there more questions?
MR. SWANSON: Another salient point in the...that was asked in the missing letter...is the comparison of focused versus conventional. And you can see over the last 10 quarters. And it's highlighted. I guess the highlight doesn't show up there. I don't know if it does from the back of the room or not, but the second quarters give you the most accurate reading, to me, the most accurate reading of apples versus apples.
MR. BURKHAMMER: Bruce.
MR. SWANSON: Yes.
MR. BURKHAMMER: Does the yellow include focus...started as focused but turned into conventional or...
MR. SWANSON: Yes.
MR. BURKHAMMER: Focused is focused and then conventional is conventional?
MR. SWANSON: The bottom...like if I can take this most recent quarter, 4/59, that's a focused inspection and that focused inspection obviously started as a focused, continued and was concluded as a focused inspection. It is 30 percent of the total number of inspections, which is 1500 and some. The 1047 number is the number of conventional inspections that were done that quarter in the construction industry. In theory, every construction inspection should probably start as...or should start as a focused inspection. This extraordinarily high number of conventional inspections I cannot sit here and tell you that the theory was complied with and everything started as a focused inspection. But some of those 1047, hopefully most of those 1047, were focused inspections when the compliance officer drove into his parking spot and something occurred that changed that.
And the last...
MR. COOPER: Would you put up the next transparency please?
MR. RINGEN: But there's a question there. Unless it's a blip, that it just happens that in this particular quarter that the focused inspections are 30 percent of all inspections. Then it may be that there is a decline in the use of focused inspections. And the question is, is that the cause of this approach, does it work very well, or is it because of CSHOs and other people out there just not liking to use that approach?
MR. SWANSON: It's probably a lot of reasons all together and I'm not sure that I have the expertise or the data to totally answer that. But there's a suspicion that some folks have. The Agency, which is getting away from numbers, away from quotas, as Joe Dear pledged it would be, the number of inspections is not being used for anyone's performance evaluation. I think the belief that it is is slow and dying out there.
And the easiest way to prove that you are out producing me, Knut, is for you to be able to point to inspection numbers that are higher than my inspection numbers. And being the astute individual that you are, you discovered a long time ago that on construction inspections, you book at the end of a quarter looks better if you made more construction inspections that I did and that those construction inspections were mostly conventional and not focused.
MR. RINGEN: Well, maybe it would be useful for the next meeting to have more of a detailed sort of report on how the focused inspection program is working now that you've had some experience with it.
MR. BURKHAMMER: Knut, before we go on. Of course, I don't know how you get your statistics when you bring them in, but if there's any way for the future for all of us, for years from now, if we continue this program, but any way for you, when you generate reports, to note in your report that it started as focused and switched over, that you can gather that statistic at one point.
And I know it's going to be a long time, because that last bar would have been great because you went from...it had 1000 conventional and 400 and some focused, but if you'd been able to show us that 80 percent of all of them started at focused and switched over, it tells you that the world out there is really not leaning into doing things right to get a focus because it really doesn't matter to them evidently.
MR. SWANSON: Well, another factor that doesn't show up on this one dimensional, if I can, graph is I'm not sure where we want to drive that focused inspection. I'm not sure that 100 percent of our inspections ought to be focused inspections. Or if 100 percent of our inspections ought to be conventional inspections.
If we had an appropriate targeting system where those very few contractors in the country who don't obey OSHA laws could be identified, we would not have any focused inspections.
MR. BURKHAMMER: Right.
MR. RINGEN: Go ahead, Ana Maria.
MS. OSORIO: I have all the forms here and stuff, and, you know, there's an initial inspection form that gets put into IMS and then there's an update form. And those forms could be used, because it changes from general or focused and whatever and stuff. That would be noted on those forms.
So I do think you have the capacity of seeing when there's been a change. At least these are the forms that we got that are all entered into IMS. I think scraping below the surface, I think some of these questions could kind of be addressed.
MR. RINGEN: Stew then Steve.
MR. BURKHAMMER: Three years ago when Jim Stanley came around with the focused idea, and he gave a lot of talks on where he thought the Agency would drive focused inspections, and I thought the concept was, and it may still be, that as the years progressed out, and we're into the third year now, that the focused concept would go up.
MR. BURKHAMMER: And the conventional concept would go down, thus allowing OSHA to take its limited resources and span it out to more contractors who weren't getting inspected under the old way but now they would have more time to inspect those that a lot of us thought that got by free for a lot of years.
But looking at this, and listening to what Mr. Smith said, you can't really tell how many of that 70 percent started out, as you said, as focused, but some event didn't, or either compliance officers just not wanting to use the focused concept because it doesn't look good on their numbers.
MR. RINGEN: And, again, Ana Maria has the form that you can change to fix that for the future.
MS. OSORIO: Not only that, but the form also asks if this has been inspected before. So it could be time between the two inspections and then a year later could be focusing before it was more general.
So, again, I think some of this...we can talk in our work group a little more about it, but I'll keep that as a point to discuss.
MR. BURKHAMMER: But I guess I'm thinking of what Ana Maria said. On follow-up inspections down through general, do you know?
MR. SWANSON: I do not know. I'll leave it at that. I just do not know.
MR. BURKHAMMER: It used to be whenever you do a conventional, there was a follow-up and that took a lot of time and I just wondered...
MR. SWANSON: There has been...I don't know what the figure is, and I'll stand by that answer. There has been an effort made by OSHA to verify abatement over the last few years, to verify abatement by other means than using the resources for a follow-up inspection. And then follow-ups were probably always low in the construction industry anyhow, maybe not on Bectel jobs, but on other jobs because they were completed.
MR. RINGEN: Steve.
MR. CLOUTIER: The things that I've seen that I think impacts your last quarter was shown...when Joe Dear left office, we went back to the old way of doing business. We were going to do the focused and the compliance office didn't like it, and they were going to come back...going back to the old way, "We're here from OSHA, we're here to help you, and --
And I speak for a number of inspections which...that bothers me also when I see that percentage rate go down. So feel like, Stew, if anything it should have gone up because we were going to maximize OSHA's resources to get to as many projects, and the way to do that was if you qualify for the focused, -- go to the next project.
And it concerns me if they're down 30 percent in their inspections for focused. I would hope that it was at least 50 percent or above -- third quarter.
MR. RINGEN: You may want to take the opportunity to raise that when Mr. Watchman's here. He will be here at 3:30 if I'm correct.
But is there general agreement that we should try to get a more detailed report on the focused inspection program by the next meeting? Okay.
MR. FRANKLIN: This is John Franklin from OSHA.
There is a form in here available for like Ana Maria says, but we don't use that form for indicating whether we started as a focused inspection and changed to a conventional. So at this point in time, that information is not being collected by OSHA. So we could, you know, send something out and ask people to start doing that in the future or we could collect some more detailed information on the OSHA 1 or whatever. But at this point in time, we don't collect that information. So it wouldn't be available for the next meeting, is all I'm going to say.
MR. SWANSON: But we heard your request for more discussion.
The last slide and one that is not normally prepared for any reason by OSHA for OSHA was prepared by special request in order to answer a request in Mr. Cooper's letter. And it's been up there for some time and you've all looked at it and it's probably self-explanatory.
The red being the fatalities and how they are spread by region. And the blue being the number of compliance officers, number of as spread by region.
MR. CLOUTIER: What is this compared to? Last year's, the year before? Is this 415 fatalities that were reported or actual?
MR. SWANSON: These are 415 fatalities that OSHA was aware of for the time period indicated here. Our fatality count, and this is old news to someone like you, Steve, but our fatality count is different from BLS's fatality count because...while a fatality is a fairly consistent definition, what one was doing when they were killed varies as to whether it was on the job or not, between BLS and us, and then the National Safety Council has a third set of data.
But these fatalities are OSHA awareness fatalities during this time period. There is no comparative here. I have not prepared a slide to compare fatalities for a similar time period earlier.
The request was to show the correlation between fatalities and the number of compliance officers in a given region. And we devised this overhead to present those data figures.
MR. RINGEN: Steve.
MR. CLOUTIER: This committee used to get copies of the FATCAT records, and for some reason they just stopped. Can we get those? I think the middle of last year we stopped getting them. And they proved pretty helpful in understanding how these...by the regions, the fatalities. And gave us some insight in trending. So if we could re-get those, I'd appreciate it.
MR. SWANSON: I'm sorry. I didn't know that we had stopped doing that.
MR. RINGEN: Steve.
MR. COOPER: Bruce, the amount of Federal OSHA's CSHOs, seems to me like you counted the cats and the dogs in these regions.
Do you actually have that many active inspecting CSHOs in that region? That number seems elevated.
MR. RINGEN: Which region?
MR. COOPER: Any of them, all of them. Are they actually CSHOs that are inspecting job sites, or are they people that are doing desk jobs?
MR. SWANSON: The obvious answer to that question is we wouldn't count anyone who was doing a desk job in there, Steve.
MR. COOPER: You would?
MR. SWANSON: We would not.
MR. COOPER: Well, then thank you very much and go on, Mr. Chairman.
MR. SWANSON: You can see by the earlier sheet that we handed out, Region 1 indicates a total CSHO count of 115. It appears on this chart as 116. We did count obviously...we counted safety, we counted health, we counted 11C. All...
MR. COOPER: 11C and all of these CSHOs have made an inspection within the last six months?
MR. SWANSON: I can't answer that, Steve.
MR. COOPER: I mean...would I be accurate in believing that?
MR. SWANSON: No, you probably would not be. The 11C investigators, while they have done an investigation within the last X number of months, whatever you used...
MR. COOPER: Well, that includes 11Cs.
MR. SWANSON: Yes.
MR. COOPER: Which investigates complaints. That is fine with me. Your response is great. Thank you very much.
MR. SWANSON: Thank you.
MR. RHOTEN: If I could, Mr. Chairman?
MR. RINGEN: Yes.
MR. RHOTEN: Just one question or comment.
Is it possible to get the statistics on the number of workers in those regions? I mean to compare the deaths directly to the number of inspectors might give you the rule of thumb but I think what you really need is the death rate, the traumatic death rate per 100,000 in that particular region. And put that along with that chart and you might have a better understanding of what's happening. I don't think that will show you, if you're in an area with a small amount of workers, how it equates to another state that has a large amount of workers. If that's possible.
MR. SWANSON: Mr. Chairman, do you happen to know? You are quite familiar with BLS data. Whether or not BLS has a worker breakdown that corresponds to the Labor Department by regions.
MR. RINGEN: Yes. You could probably produce a fatality rate by region for BLS statistics. The problem with using OSHA fatalities is that, first of all, it's way under-reported under any circumstances. But, secondly, there is much greater variation in the number of fatalities reported to OSHA each year than there is variation in the BLS statistics.
So I think that the OSHA fatality data are pretty unreliable. And therefore any rates that you calculate from it aren't going to be worth much either.
MR. RHOTEN: Well, each year of the AFL-CIO...I don't know where they get that information from, but they come out with some statistical information by states, and in any case they will tell you the death rate per 100,000, traumatic rates, and also give you the number of workers in that state, the number of job sites. I don't know how accurate that is, but at least if that was fed into this, or the best accurate information we could get would give us a better picture of how that really relates to each other. Because like it is there, you cannot equate at all.
MR. RINGEN: Ana Maria.
MS. OSORIO: Well, again, we also made that recommendation, and most states, not necessarily the Department of Labor, but for economic forecasting reasons, they usually have estimates, and usually by SIC codes, for all industries and stuff that are self-insured for workers' comp. And that's true, I think in the majority of cases.
So where it's bad is that if you have a transient work force, like in California, as I mentioned before. We have day laborers and all that. So you're not going to catch that. You're not going to catch agriculture.
But I think the point here is that there's no way of making sense of those numbers unless you have at least a surrogate for, you know, number of people exposed.
So what we recommend is trying to use these population estimates of workers, even though we know they're not directly...even though we know the deaths may not be complete, but also compare those with BLS and you'll look at it from different slices, if you will.
And the other thing we recommend is that it's inappropriate to just look at the Feds. You have to look at the state plans too because if you look at Region 9, 18...I forget how many inspections, whatever. I mean you can't...the population estimates are based on any activity compliance between the given states. So you'd have to merge anything that the Feds did with what, you know, the state plan did in terms of ascertainment of deaths.
So these are things that could be done. And you can't do this every month, but we recommend at least once a year trying to get into a little more detail so you can do this comparison.
MR. RINGEN: We used the current population survey to get denominators, and it works pretty well.
MS. OSORIO: Yes, yeah.
MR. COOPER: Mr. Chairman, you had promised the audience that you would give them an opportunity ask some questions. It is noon time. And I assume that many of them have jobs to go to unlike us.
MR. RINGEN: This is their job.
MR. COOPER: It may be an opportune time. It's an opportune to catch me because I'm going to be going to lunch real shortly myself.
MR. RINGEN: Right. If there are any questions, we've asked them to produce some written note, if they have any questions. And we haven't gotten any, so I assume there are none. But if there are any questions, we'll take them now.
Do you have something more?
MR. SWANSON: Yes. May I make a comment...maybe it's a request.
This last slide that we looked at, if the committee really feels that this is a useful slide, we will, of course, try and improve it and accommodate you. But I find it an unsettling slide, a slide that is...I mean I'm not sure what it tells us. Fatalities by region. And how we get anything useful out of that to help guide OSHA policy in the future. Some of our regions, as Ana Maria has tangentially pointed out, you know, are state regions. I mean maybe we should do it by state.
MS. OSORIO: My question to...well, that was another...I mean you guys are going through all our recommendations. It's going to be anti-climatic when you hear our list.
MR. RINGEN: Just old off.
MS. OSORIO: Yes, okay.
MR. RINGEN: We'll get to it.
MS. OSORIO: Okay. But the one thing that I wanted to ask you is that I know there's a hesitancy or a lack of interest to kind of present the state data, because obviously this is ACCSH, which is giving recommendations to Fed OSHA. But if we also are just trying to get at health and safety in the entire industry, and we see...and I think we should analyze the data by state, because it makes much more sense. States have different kinds of mixes of different construction subgroups and all that. And then if we see a state that's primarily or 100 percent a state plan, I don't think it's out of line for the committee, through you, or through whomever, to then, you know, make some recommendations to some of the states about what we were observing.
So, you know, I think we have to go...I think with regions, you are mixing apples and oranges. Some regions have such diverse types of subgroups and construction from state to state that, you know...
MR. SWANSON: I totally agree on the regions. And the correlation here, as presented in that slide, was not the ratio of fatalities to employees. It was fatalities...a ratio of fatalities to compliance officers, which I don't see what good that does us, and it gives us implications that are to make quite distasteful.
MR. RINGEN: Stew.
MR. BURKHAMMER: John, could you put that last one up again?
I agree with you, Bruce. I think that last slide is just...I don't want to use the word "stupid," but...
You know, the fact that we had...just to show you the difference, and I've long preached about fatalities and how we count them and what are counted, and who counts what, and if you look at OSHA's fatality total of 415 for 1995/96, and you look at the building trades' count, which is four to five times that, and you look at the National Safety Council's count, which is sometimes 10 times that.
In our packet today we had from the Assistant Secretary of the BLS statistics, and they have a paragraph on fatalities, and it says "The ways to information in 1995 was 6210 fatal work injuries, of which 4250 were private wage and salary workers, 800 in Government, and the rest were self-employed." Understanding OSHA doesn't count single self-employed persons. So that adds a lot to the count.
But that shows the discrepancy in the counting. So a slide like that, I mean when you compare a fatality to a compliance officer, and compliance officers can't prevent fatalities. That's just a dumb slide. I'd like to see it removed.
MR. RINGEN: We're also talking about a couple of different things here. On the one hand, we're talking about issues of concern in terms of safety and health, which is what you're raising. The other issues, how does OSHA measure its internal performance? Now, that can't necessarily be done by state. That has to be done by office in some ways eventually.
MS. OSORIO: We're recommending you do both, but, you know, taking into account what you're asking, which chart lists...
MR. RINGEN: And I think we all agree that this thing isn't very helpful.
It's lunch time. I have here, first of all, the letter that we sent to Mr. Watchman at the request of the committee the last time. I'll pass that around.
And I also have the Federal Register Notice here about the...we can put these back on the table there I guess. And we have copies of the Federal Register Notice about the nominations.
So what we're going to do now is we're going to take lunch and then we'll start out after lunch with the Decontamination Practices and the Washing Facilities, and we'll take everything else that is on the Agenda.
Then we're going to find out...we were going to hear whether OSHA was ready to talk about reinvention today? Do we know about that? As well as the Respirator Standard. I those were possibly two things that are on tomorrow's agenda. That we're going to take today.
That will probably take us from lunch time up until about 2:30, if we have all of those things. No, 3:30 I mean.
Greg Watchman will be here at 3:30, so we will meet with him and we'll adjourn at 4:00. If that's agreeable. Roughly 4:00 if that's agreeable.
MS. JENKINS: Can we also get a status report on record keeping?
MR. RINGEN: Yes, that would be good.
Since it's now about 10 after 12:00, right, or so. Why don't we get back together here at quarter after 1:00, and start over.
(Whereupon, at 12:10 p.m., the meeting was recessed, to reconvene at 1:20 p.m.)
A F T E R N O O N S E S S I O N
MR. RINGEN: If you'd please be seated and we'll get started again.
The next discussion is about Decontamination Practices, which Ellen Roznowski is going to talk about. And then we have the issue about Washing Facilities and Construction Sites. That Steve Cooper is going to talk about. And we combined our discussion of those because they do relate to each other, as you will see in a minute.
So, Ellen, why don't you go ahead first.
MS. ROZNOWSKI: Thank you.
MR. RINGEN: You're going to need to speak up.
MS. ROZNOWSKI: Good afternoon.
I am Ellen Roznowski. I'm a senior industrial hygienist here at OSHA. I work in the Office of Construction Services in the Directorate of Construction.
I've been asked to do a presentation on decontamination. It's a very interesting issue, one that OSHA has dealt with in the past. The reason it is of current interest to the Agency is the result of a meeting that was held May 13th at the Center to Protect Workers' Rights at Knut Ringen hosted. So I would just ask him to say a few words about that meeting.
MR. RINGEN: It was a good meeting.
MS. ROZNOWSKI: Thank you.
MR. RINGEN: No. The issue arose sometime ago that a contractor from Pittsburgh does both lead abatement work...mainly just asbestos and lead abatement work, contacted us saying that he had found out that in his experience that the work clothes that people used from these jobs were not being laundered adequately and they were coming back contaminated or they were being washed in commercial laundries. And so he built a laundry for his own operations to do this stuff properly.
And it occurred to us, in looking at this whole issue, that there's a big gap between within OSHA standards, mostly between OSHA and EPA standards, about the whole matter of clothing, tools, other things that are used in work sites that become contaminated by toxic materials and what happens to them afterwards. That was really the issue.
And we pulled together a small group of people to talk about this, and Ellen was kind enough to come and help us.
As Knut said, there are some OSHA regulations that are currently enforced that do address both the decontamination or cleaning of protective clothing and also equipment. So I thought I would just run through those very, very briefly.
Okay. This is asbestos. Okay. Where it talks about laundering. "The employer shall ensure that laundering of contaminated clothing is done to prevent the release of asbestos." And then there's a notification provision, Item 2, such that the employer must notify persons who get clothing for decontamination, that there is an asbestos standard and that they basically will have to take precautions to limit the release of airborne asbestos fibers. And then contaminated clothing shall be transported in sealed and permeable bags in permeable containers and be labeled.
Once again, that's the Asbestos Standard for Clothing.
Looking also then at the Asbestos Standard with regard to contamination, this is for, say, the lower level-type jobs. This would be Class 1 jobs, which is working that involves thermal insulation or Class 2 and 3 jobs, where you're disturbing asbestos.
There should be an equipment area where the equipment and clothing must be removed. The visible contamination must be kept at a minimum and removed periodically, and anything...you see Item 4...all equipment and surfaces of containers filled with ACM must be cleaned prior to removing them from the equipment room or area. And that all entry and exit of the asbestos work area needs to be done through that room.
So therefore, the intent here is that all contamination, whether it be on clothing or equipment or containers of waste moving in and out of the site, stop right at that point. Okay.
And then this is for Class 1, asbestos work, where you are disturbing large quantities of asbestos. They actually talk about a decontamination area with an equipment room. And the equipment room needs to be supplied with labeled bags, containers, so that all equipment is contained and disposed of properly.
Okay. So that's the Asbestos Standard.
The other standard which is most pertinent to construction besides asbestos is lead. So just to run you through the requirements in the Lead Standard. Once again, it talks about the cleaning laundry and disposal of protective clothing and equipment. It talks about the fact that protective clothing is removed at the completion of a work shift in specifically designated change areas. Contaminated protective clothing is placed in closed containers. Those containers are labeled with the labeling language there.
And that also the employer informs in writing any person who cleans or launders protective clothing or equipment of the potentially harmful effects of exposure to lead.
So the idea here is that this change area, that it's clean, laundered and disposed of in a way that prevents the dispersion of lead past the change area.
Now, these provisions are only in effect where the PL is in fact exceeded.
And then this goes on to discuss the actual change areas and what needs to be provided there.
Clean change areas with separate storage facilities on Item 2 for protective work clothing and equipment and for street clothes which will prevent cross-contamination. Showers are required.
And then at the bottom I've included what the housekeeping provisions are. Once again, in terms of limiting contamination, all surfaces shall be maintained as free as practicable of accumulations of lead. And it talks about doing that by vacuums or other means which would prevent the dispersal of lead dust.
Okay. So that is lead and asbestos.
There are a number of other substance-specific standards which also address limiting transport of contaminants through the work site and minimizing exposure. The MDA Standard, Methylene Di Analine, is a notable standard in the sense that it was the product of a negotiated rule-making, and so therefore as a standard its language in some respects differs markedly from some of the other standards.
And this is one instance where you'll note that the language is different in its provisions from lead or asbestos. It talks about the fact that there is a requirement for change areas but that the employees remove MDA-contaminated protective work clothing or equipment before leaving the regulated area, but then also says that the employer shall ensure that no employee takes contaminated work clothing or equipment out of these areas. That they should be, once again, placed in bags and that they bear warning labels. That's consistent.
However, there is a specific Point 6, which is not in the other regulations, which talks about "Waste, scrap, debris bags, containers, equipment and clothing contaminant of MDA shall be collected and disposed of in a manner to prevent the reentry of MDA into the work place."
Now, you don't actually encounter methylene di analine very often in construction.
Now, the other area...well, I'll just whip by cadmium real quickly. But once again, that's very consistent with what you've seen. That's another standard where there are specific requirements for change rooms which is designed to prevent the dispersion of cadmium and contamination of the employees' street clothes. You can see that in Item J-2.
Now, the Hazardous Waste Standard, which is particularly concerned with limiting contamination, has a paragraph specifically addressing decontamination, and it talks about the fact that there actually has to be a decontamination procedure developed. This would be, for all intents and purposes, a written procedure and that "Standard operating procedures shall be developed to minimize employee contact with hazardous substances or with equipment that has contacted hazardous substances."
So this is actually the most specific language that we have had yet and the most restrictive in the sense that it requires a proactive examination of the types of equipment that would be contaminated and addresses the need for specific procedures that would reduce the hazard.
Then it talks about "Employees shall be appropriately decontaminated. That all clothing and equipment leaving a contaminated area are appropriately disposed of or decontaminated." And it also talks about monitoring of those procedures by the site safety and health supervisor, which there is a requirement for in that standard, but you might substitute the idea of the competent person.
And then it talks about the fact that the "Decontamination operations itself will be performed in geographical areas that will minimize the exposure of uncontaminated employees or equipment to contaminated sources."
And then the other area, once again, these are generally never cited in construction, but they are part of the regulation, which applies to construction.
There are...anyone who is going to peruse the Federal Register will remember that there's a whole...there's 13 carcinogens that are regulated substance by substance. And those regulations are identical. They just more or less change the names of the specific carcinogen.
And these are the regulated area requirements in that batch of 13 carcinogens. It does talk specifically about contamination control. It identifies the concept of the regulated area. And then in Item 2, it talks about "Equipment, material or item taken into or removed from a regulated area is done so in a manner that does not cause contamination in non-regulated areas or the external environment." And then it talks about establishing decontamination procedures.
Now, once again, these are all substance-specific standards. There basically is no generic standard which specifically addresses decontamination of equipment, particularly tools. And even the requirements for hand washing or sanitation talk about cleaning up the worker but do not get very specific with regard to contamination and replacement of protective equipment to the extent that the substance-specific standards do.
This has been demonstrated in the literature to cause hazardous exposures to co-workers but also most of the literature actually has to do with take-home toxicants. The idea of contaminants being transported out of the work place via tools or equipment and contaminating employees' vehicles and home, and therefore causing occupationally related disease in children and spouses. This has been seen primarily asbestos and lead. PCB contamination has also been identified.
There was a fairly exhaustive report which was generated by the National Institute for Occupational Safety and Health in response to a Congressional act which required them to study this issue. It was released in September 1995 and NIOSH has ongoing programs in this area. The program...I think your packets contain the introduction to that report, the Executive Summary, and also the chapter headings, so you can see what areas were examined in the context of this research report.
Basically what they said, once again focusing on measures for preventing home contamination, is that preventive measures are found to be effective, that should be cited in the work place. And this is what they said. It's fairly obvious that reducing exposures in the work place can also address the hazards of contaminated areas outside the work place. Changing clothes before going home and leaving the soiled work clothing at work, storing street clothes in separate areas of the work place to prevent their contamination, showering before leaving work and prohibiting removal of toxic substances or contaminated items from the work place.
The report also noted that there were several areas for additional research in the sense that much of their knowledge was derived from anecdotal data or case studies. Specifically there needs to be more work to identify what the potential exposures are, what the routes of exposure are, what contaminants are of primary concern, what are the actual health risks that are associated with the observed levels of exposure or contamination. And more specifically the work practices and controls that are utilized in the work place, basically derived around these types of guidelines that would prevent transport of contaminants from the work place to other work places to expose other bystander employees, to expose maintenance employees, to expose employees who are using rental equipment that have unknown provenance, and we are also concerned about the transport of toxicants to the home and the non-work environment even though that is not part of our mandate.
So that's basically my report.
MR. RINGEN: Thank you. Thanks for doing that, Ellen.
MS. ROZNOWSKI: Surely.
MR. RINGEN: Any questions or comments about this?
MR. MEYERS: The package that Ellen talked about that in your handout there is the Executive Summary does note that there's one study that NIOSH was undertaking at the time on bridge workers and lead exposures. In terms of taking home lead.
That study has been completed and actually in this month's American Industrial Hygiene Journal is the first publication coming out of that study.
When I saw that it was on the agenda this morning, I made contact and found out that...I haven't read the article but apparently children of bridge workers were found to be about six times the blood lead levels than children of non-bridge workers as a result of that study. There were also swipe samples and such taken.
So, in fact, out investigation in that particular problem has found a take-home problem for lead.
MS. ROZNOWSKI: As I say, with regard to lead and asbestos particularly, we do have in place regulations that would prevent this. However, looking at citation data, which I have, it's consistently cited for those inspections that are conjunctive with regard to lead and asbestos exposure.
So we can see the problem of level of compliance out in the industry with regard to those provisions is not very high. I don't think that it's kind of permeated the safety culture to the extent that it needs to be to protect not just children but bystander co-workers. And certainly the workers themselves.
MR. RINGEN: Mr. Cooper.
MR. COOPER: As a safety representative for bridge workers, the manner in which you are cleaning those clothes exposed to lead, asbestos, whatever, is you do not take them home. You take them down to the local laundry mat, leave them there, leave the debris for the white collar worker to deal with, and then their clothes are contaminated also. That's the way you do that, which is another problem. Maybe there are laundries for particularly the more cleaning those type of clothes.
MR. RINGEN: And it's been raised in another way also and that is that since it's very difficult to make sure that, for instance, these kind of laundered clothes are done properly and are maintained with a chain of custody and so on properly, lots of employers who are doing this kind of work prefer to use disposal work suits instead of -- work suits, especially when you are dealing with steel, structural steel and stuff. These things tear awfully easily and do not provide any kind of protection that is generally needed.
So there's an issue here that I think is complex, and it involves not just OSHA but it involves the EPA as well. That we'll need to look at some more and come up with some recommendations.
MS. ROZNOWSKI: Before we go on to Steve's discussion, I just wanted to update you a little bit in terms of the silica SEP even though it's not on the agenda but it's a current industrial hygiene construction concern.
Just very quickly, I have put in the back the latest inspection data reports under the SEP. You'll note that there is a total of 418 inspections starting from August 1 which is the inception date of the SEP going to May 20th of this year and 156 of those were in construction. The Directorate of Compliance expects that that ratio of construction to other inspections will actually be increasing, decreasing. There will be more inspections in the construction area because the season is starting. And so it's kind of been in hiatus over the winter months, but they'll be more inspections in the construction sector.
So that's in the back for you folks here.
And also I put a notice out on the silicosis cyber conference. The OSHA Salt Lake City Laboratory has organized a cyber conference on silicosis in the month of July. You can enter that and participate through the OSHA Web page. And once again, there's information on that in the back.
MR. RINGEN: Thanks, Ellen.
MS. ROZNOWSKI: Thanks.
MR. RINGEN: The next issue on the agenda that relates to this as to do with the continued concern about fuel sanitation in construction.
Is that correct, Steve? It's listed here as Washing Facilities and so on but it involves eating facilities and all of these other kinds of things.
If you want to go ahead and take the lead on this.
MR. COOPER: Mr. Chairman, as regards to Settlement Agreements, H. Berrien Zettler asked me for a couple of moments to respond to a question on Settlement Agreements.
The question we raised, Bruce, earlier, and I think would be important for this committee...
MR. RINGEN: Okay. Mr. Zettler.
MR. ZETTLER: Thank you, Mr. Chairman.
In response to some questions that were raised at the last ACCSH meeting regarding OSHA's policy on Settlement Agreements by Mr. Cooper.
We believe that that's an undertaking that should be a joint undertaking between construction and general industry because the same issues come up in general industry as in construction. And in that regard, Mr. Ray Donnelly, who made the presentation to ACCSH at the last meeting, wrote a memorandum to Marta Kent, who is our economic analysis person, asking her to assist us in developing a research study to be done by a contractor where we will randomly select 50 Construction Settlement Agreements and 50 General Industry Settlement Agreements.
And the contractor will work...first of all, will study the terms of the Settlement Agreements and will go back to the work sites that entered into...or the companies that entered into those Settlement Agreements and we will determine whether or not those Settlement Agreements have been effective in producing improvements in the work place.
The money for that has been set aside already. We have not completed the design of the study yet, but we are working on that and hopefully in a relatively short time we'll be able to complete the design of that study and carry that out.
MR. RINGEN: Thank you very much.
You have nothing more on that, right?
MR. COOPER: As relates to Washing Facilities, the use of toilet or restroom facilities on work sites go hand in hand with another important basic human function, which is food consumption.
And it's normal that every construction worker performs one or two of these functions in an eight-hour day. Uses the restroom, eats food.
In addition, we have increasing numbers of women in construction who have feminine hygiene concerns which have to be attended to on the job site without washing facilities.
We have toxic exposures on the job site and bacterial exposures on occasion which resolve in trauma sickness loss time and et cetera. And these exposures occur and repeat themselves daily and would be reduced with washing facilities.
Now, we have an OSHA standard that talks to washing facilities and restrooms. And the old standard that's been around a long, long time. I believe it's 1926.51. And it is. It talks about restrooms and said there would be one restroom for 20 people or less. And it talks about washing facilities. And it's also 1926.51. It talks about the employer shall provide adequate washing facilities for employees engaged in the application of paints, coatings, herbicides or insecticides. And it speaks of that area.
And it also points out that there will be laboratories but they do not apply to mobile crews which technically means that they don't apply to construction.
In May of 1987, OSHA finalized the standard that talks about agricultural workers. That's 1928.110. And we have a regulation for migrant workers in this country or field workers. It covers them both. Put out by OSHA. Again, it's 1928.110, finalized May 30, 1987, 10 years ago.
And it talks about hand-washing facilities for workers, field workers. It's under Field Sanitation. And it talks about the use of soap and towels, not only talks about it, it regulates it. And potable water.
It also talks about toilet and hand-washing facilities to be provided for each 20 employees or fraction thereof. It talks about toilet and hand-washing facilities are not required for employees who work in the field for three hours or less a day. And it talks about various sanitary conditions and it says the employer shall notify each employee of the location of the sanitary facilities and water, allow the employees to use them.
And in some cases in here, it talks about hot and cold water.
Simply put, on a lot of our job sites, mainly the smaller job sites, there is no washing facilities. We have these problems. It is my firm conviction that those border on third-world conditions when a construction worker has to use restroom facilities, has no place to wash. We have the feminine hygiene problem, no place to wash. We have toxics. No place to wash.
To me that is unacceptable and is animalistic in nature.
Now, Mr. Chairman, I would propose this committee look into this concern for construction and come back to this committee with a proposal to OSHA.
MR. RINGEN: Thank you, Steve.
Questions, comments? No comments?
MR. RHOTEN: Just one. He's absolutely right.
MR. RINGEN: Yes.
MR. RHOTEN: So that's the only one. There can't be any comments against what he just said.
MR. RINGEN: So what you're proposing, Steve, is that we establish a work group that will deal with the sanitation facilities and eating facilities?
MR. COOPER: Yes. And there will be a group on this committee that wants to discuss restroom facilities on the job site for women, which is immediately to my left. I don't know if you want to throw that in there. But I'm sure they want you to. But I simply would like to come back and make a report back to the committee on what we come up with.
MR. RINGEN: Well, it was an important part of our discussion of the women in construction report that we had the last time. The discussion ended up not being just about having maybe gender segregated washing facilities but more importantly having sanitary facilities...
MR. HALL: Steve, do you see a significant difference between what field sanitation would require and what construction would require? Because, of course, the law is on the books for field sanitation.
MR. COOPER: Yes.
MR. HALL: There's some differences there.
MR. COOPER: Yes. It's required...it's required in agriculture. It's not required for construction.
MR. HALL: So I'm saying there's differences between agriculture and construction and that committee could perhaps work on those differences?
MR. COOPER: Yes.
MR. HALL: Because the law is on the books on field sanitation.
MR. COOPER: Yes. For agriculture.
MR. HALL: Right. But that doesn't necessarily imply for construction.
MR. COOPER: Yes. That's correct.
I have, Mr. Chairman, a cute picture provided by a management association which I'd like to pass around. It is two restrooms on the job site. There's pink and one's blue. And one says "Women" on the front and the other one says "Men," and they are very close together. Which you may have to separate.
But I'll pass that around. But it could be that technically this should be the minimum on a construction job site.
MR. HALL: It looks more like a port-a-potty.
MR. COOPER: Well, I didn't realize your eyesight was that good, but that's probably what it is.
MR. COOPER: No, these are just restroom facilities. But it's an area that really needs to be looked into. And not the privies. They're pictures.
MR. RINGEN: Here is what I suggest, Steve. That we establish a work group that combines dealing with the sanitary facilities and the decontamination issues. And since you've been the one who's raised these, I would like to ask you if you would chair a work group like that. Come back to this committee with the necessary recommendations.
MR. COOPER: I would love to. But, you know, as a plumber, I'd like to work on it.
MR. RHOTEN: If the iron worker does the part of installing these, it's outside of our jurisdiction. So I'll be glad to help you serve on that committee. Maybe we can get the jurisdictional thing straight right from the start.
MR. RINGEN: At least you'll get a proper drain. That's good. Okay.
If there are any other willing participants, I would think we could get somebody from NIOSH to work on this in the sense that you have the family contact issue to deal with.
MS. SUGARMAN: Being an elevator constructor, I would like to address this, and I welcome Steve's bringing up this proposal, and think it is an appropriate way to begin to address some of the inequities we talked about in our report last session.
MR. RINGEN: Can we have a representative from the management side to work with us also?
Bob Masterson? Bernice? That's great.
Also then we have a work group. Anybody else? A work group consisting of Cooper as chairman, with Bernice. Bill Rhoten, Bob Masterson and Bernice Jenkins. With some representative from NIOSH. Ellen, you will help out from OSHA.
MS. ROZNOWSKI: Ask my boss. Ask Bruce.
MR. SWANSON: We'll give assignments.
MR. RINGEN: Yes. There is somebody who will help out from OSHA obviously.
Okay. Anything more on that issue? I don't think we need to take a vote on that.
MS. SUGARMAN: Can I just add one thing?
I want to just comment. In Ellen's report, she talked a lot about changing facilities and showers. And I think the same issue was raised there in terms of separated by gender and locked facilities that ensure privacy for both genders.
So I'm glad that you're linking both issues, because I think some of the issues are absolutely similar.
MR. RINGEN: Oh, I think so, yeah.
And with the great ground work that your working group has provided on this issue, it'll be easy for Steve to take it one step further.
Thank you all very much.
The next issue on the agenda is two related issues. The first is a report or some comments from OSHA about multi-employer work site policy. That Bruce is going to talk about.
And then we have a proposal that the American Subcontractors Association is going to raise with us about the allocation of liabilities on multi-employer sites.
So you want to sub, Bruce.
MR. SWANSON: Yes, very good. Thank you. I have subcontracted this job.
MR. ZETTLER: Thank you.
Thank you, Mr. Chairman.
I think that this committee is in general very familiar with OSHA's multi-employer work site policy, so I thought that for purposes of this afternoon's presentation, I would give kind of a summary presentation and respond to any questions which anybody may wish to go further into any of these things.
OSHA's policy right now with respect to multi-employer work sites is included in what we call the FIRM, Field Information Resource Manual, which is the replacement document for what used to be called the Field Operations Manual.
The text in the FIRM is identical to the text that was in the FOM, and so this policy has been in place actually for quite a number of years.
The policy calls for, on a multi-employer work site, and this is not just construction, although by far most multi-employer work sites are construction work sites, but the policy applies equally to general industry work sites which may have multiple employers on them.
In essence, the multi-employer work site policy is that when employees are exposed to hazards, the first line of citation is to issue citations to the employers for whom those exposed employees work.
But the Agency's policy goes beyond that and says that in addition to citing the exposing, the so-called exposing employer, that is, the employer who employs the employees exposed to the hazards; in addition to that, we also have a policy of citing in addition what we call the controlling employer. The controller employer, for the most part, will be employers that meet the definition of prime contractor, construction manager, and the like, if those contractors have control over what happens on the work site.
A construction manager, for example, who actually controls the succession of jobs, makes decisions as to what expenditures should be made with respect to safety and health equipment, who have safety and health responsibilities, a construction manager like that would be liable for citation.
A construction manager who is purely limited to making sure that contract deadlines are met, who pays out the performance money when subcontracts are completed, but does nothing with respect to the control of the actual work going on the work site, a controlling contractor like that, or a construction manager like that, would not be considered a controlling contractor and would not be citable under OSHA.
Commission law does require that there be control, actual control, over the work site by the construction manager or the prime contractor.
If the prime contractor or construction manager meets the definition therefore of a controlling contractor, that contractor will be cited by OSHA when violations are found to which employees are exposed, whether they are employees of that controlling contractor or not.
There are two other cases where OSHA will also issue citations, and that's the case of an employer who is responsible for a hazard existing, in other words, the employer who creates the hazard often times. As we all know, often times a hazard is created by a contractor, who then leaves the work sites, and his employees, for example, may not be exposed. Other employees may be exposed. In that situation, the contractor who creates the hazard is citable by OSHA.
And the final situation is a contractor who has the responsibility to correct a violation, a hazard, who has been informed of the existence of that violation and who then fails to correct that hazard. That person would then also be liable for citations under the OSHA multi-employer policy.
That in a nutshell is the multi-employer policy that OSHA follows at the moment. The case law is, to some extent, still evolving on this matter, but it is fairly well established in commission law, as well as in Court of Appeals law, that the policy that I've just outlined has been in general supported by the courts and the commission.
MR. RINGEN: Thank you.
In looking at this, can you find that this policy is followed systematically across OSHA allegiance, or consistently, is the better word.
MR. ZETTLER: I have not looked carefully at the data on that. It is my impression, however, just based on the case files that I have looked at, most of which would fall into the category of significant or egregious cases, it is OSHA's policy, at least in those larger cases, it is OSHA's policy to follow what I just...I mean it is OSHA's practice to follow the policy that I just outlined.
So while I can't talk about all cases, it is certainly the practice in significant and egregious cases. I think it's fairly consistently practices actually, but that's anecdotal.
MR. RINGEN: Well, thank you, Berrien.
We'll continue now with the issue that was raised in the context of the earlier draft of the Safety and Health Program Management proposed standard that we had.
At the last meeting, we had a discussion of improving the language on responsibilities between employers on multi-employer sites and we had a lengthy discussion about that, and we did approve some language that had been provided, I think, among other people by the American Subcontractors Association. I believe that they have a proposal coming back to strengthen some of that or improve some of that language. And Bob Lee will be making that presentation on behalf of the subcontractors.
MR. MEIGHAN: I'll pass those around while I'm doing this. I think it'll be simple enough.
Thank you. I appreciate the opportunity to come here and speak to you all.
MR. RINGEN: Will you introduce the persons with you?
MR. LEE: The person that is with me to my left is Tom Meighan. Tom is the safety director for Stromberg Sheet Metal Company. And Tom's company is a 400-employee, $28 million-a-year company that has a good deal of interest in this, as does my company, a little bit smaller company. We're about 70 employees and about three and a half million dollars worth of volume.
We've got a problem. I think we've also got a solution to that problem. We hope so. And that problem involves something called "hold harmless" or an indemnification agreement.
The problem is very simple. OSHA fines or transferred through hold harmless indemnification types of agreements, back down, even though the fine may have been given to another entity.
Now, to understand this we need to talk a minute about hold harmless agreements and perhaps 25 or 30 years ago how these things began to evolve. Certainly there was an issue many years ago where an employee on a job site might get injured and as such might sue the owner. The owner wasn't even present on the job site. There's something to be said for an agreement that says "We going to hold that owner harmless. Since the owner wasn't present, there was nothing that he did. No connection in any way to the injury. The only connection was he happened to own the property where the accident occurred."
That was the original. But, you know, we've got a really creative group of people on the job sites. That creative group of people are not the architects amazingly enough. The creative group of people on those job sites are the lawyers. And over the years, they've evolved these agreements a little bit. We've moved them along from being something where we're trying to indemnify or hold harmless someone who certainly had no responsibility, no connection, no other form of cause to be sued except the fact that perhaps they own the piece of property.
So with a little bit of ingenious language...I think I have some here attached to the back of one of these proposals that you'll see coming around. We've transferred that around. And what have we done? We've said, okay, if I get a fine as the general contractor, the prime contractor, the construction manager, what I'm going to do is I'm going to pass that fine back down to you. That is, you're going to hold me harmless.
Now, on the surface, that might sound perhaps reasonable. The problem comes on these multi-employer job sites. Ultimately some entity must be responsible for the overall coordination of that project and the safety of that project. And therein is where the problem occurs.
Typically speaking, here's what happens. An OSHA inspector comes to a job site. He goes through that job site. Perhaps he finds three, four, five, six violations, all involving perhaps different subcontractors. He issues those fines. And those subcontractors are fined for those issues.
Now he goes to the general contractor who may not even have any employees other than perhaps a construction manager and a laborer or two on the job site, and perhaps he finds another violation or two. Perhaps it's a MSDS Standards that are not properly met, the right to no law, some others. He finds those. Those are specifically the general contractor's violation in this case. So he writes some fines for that.
But now what he does is he says, "I've looked at this. There's this many violations." Obviously what's happening is we don't have a safe job site. And he writes a citation to the general contractor again for the overall safety of the job site.
He's also written the subs up for their individual fines. No question about it. That's where the fine belongs. I violate the rule, I deserve the fine. Same rule. The general violates the rule, he deserves the fine.
Now, what does that fine do? Well, that fine becomes a very strong incentive for me. It becomes a strong incentive for me to correct that problem. Number one, I don't want a second fine. Number two, I don't want to get into a penalty situation for second, third, fourth, fifth occurrences, which began to add to this problem.
So there's a real reason there that I'm going to not only correct it but keep it corrected on a long-term ongoing basis.
When you have an indemnification agreement, it switches a little. Now the general contractor looks at it, and he says, "Do I really care if I've got a fine? You know, it doesn't matter. Do I really care if the job is well checked for safety? Umm, doesn't matter. Doesn't cost me any money. Why should I care? In fact, you know, I'm sitting up here in the trailer."
And I don't know what is it today, 90 degrees outside, and we're in a 70 degree room in here. Is it worth it to him to get out of that trailer and walk around that job site and see if in fact there is a safety violation, a dangerous situation? It's 90 degrees. It's hot outside. You know, you're going to sweat, you're going to be uncomfortable.
No, very simple answer to this. I don't have any fine coming to me. If I'm not going to have to pay the fine, regardless of what happens, if I can pass that along, there's no reason for me to maintain a safe site.
In a nutshell, that's where our problem is. With no incentive to this person, he doesn't have any reason to go and, for instance, contest the fine or say, "Gee, I think you missed me. I think this is right, or that's right." In fact, he's got the opposite. Why should he put any of his resources into defending that? There's no reason. He's going to pass it right along. It becomes for him a no-issue item. Even if it's a multiple fine, there's no issue there.
The problem in a nutshell, what we have here today is an opportunity to solve that problem. What we passed out is some subcontractor's proposed language for OSHA. It's very simple language. It's supported by ASA and the associations you see listed below. What this language does is simply make it unenforceable or illegal to transfer fines that were incurred by another entity to another. It's simple language. It's not complicated. And I think it makes a whole lot of sense to solve what we see as a major problem.
Tom, do you have anything to add?
MR. MEIGHAN: At this point, if there are any questions. I just came up here just to get a taste of the situations where I've seen the -- employer work place process enforced. I've exampled the two citations that Stromberg got. Both of them were housekeeping citations.
All the employer, general contractors on site, were well aware of the situation. Both situations, Stromberg was working in an area we felt -- however, the access to that area was -- --
One general contractor's superintendent's remarks, everybody on the job site was even like the housekeeper. Everybody would take a five-gallon bucket of trash out with you at the end of the night. A large project. Dumpsters were provided approximately 100 yards from the building because of poor access of the building. No trash -- provided.
But here we were, we felt that with that situation, OSHA came in -- We get caught in a situation and we fought one successfully. Had it thrown out. The other one we ended up with us on a state plan, and we took that citation due to locations and all of that and we ended up with that citation. But they are two fine examples I think of how it is being applied and what it means to us.
There's a core group of areas on any project that individual contractors don't necessarily have any control over. And I was just writing them while he was speaking and some of the issues are common to all projects. And individual contractors don't necessarily have control over those and the answer is just walking off the job doesn't exist in today's world if you want to stay in business. An issue of, well, just don't sign the contract that has an indemnification clause doesn't apply either.
Randomly this morning I went through and pulled out three contracts of ours out of our project files, one, two, three. Three in a row. Every one of them had indemnification agreements in them, every one of them.
And we've at the bottom of the food chain. We're a third-tier subcontractor. Those agreements are above us too between the mechanical contractor and the general contractor. And we don't even get to see them due to the flow-through language, we're going to be held to that same degree of enforcement.
Some of the issues common to all the projects that I really don't have an awful lot of influence on. And I, as a subcontractor, and a safety representative for a subcontractor, can't necessarily police entirely just looking at things such as housekeeping, protection of floor openings, which conveniently fall under the focused inspections for fall protection. Electrical, safe access to buildings and lighting. These are areas that I really don't have much means of influencing. You're a third-tier subcontractor, and through the chain of command, I can go out and do a safety inspection of the project. If the general contractor has a safety representative, often I'll bring it up with them directly, but typically in the chain of command, I have to go to the mechanical contractor. Now, do they relay that or pass it up to the general contractor? I don't know. I'm not necessarily in that loop, it's beyond my control if I have concerns in those areas.
And this is the biggest issue that I'm trying to get addressed. And I'm glad to participate in this and anything in the future that helps reach the end.
A situation occurred in a project just yesterday, on the convenience of this, where we had installed some curbs in a project. The opening didn't even exist. The deck hadn't even been cut yet. We installed the curbs. We put a temporary cover on top of the curb just to keep the rain out. Marked "hole" on it. Screwed it down. Another contractor comes along, has to cut the deck out. Well, they cut the deck out and loosely threw the cover back on top. Didn't secure the cover.
Another contractor comes along, takes it off, does the roofing work to it, the fill paper, the flashing. Yesterday morning, 7:30, an employee, completely unrelated to any of these trades, a sign contractor, carrying a piece of siding, steps back, trips over that curb, falls back through it. Falls I think 11 or 12 foot. Fortunately nothing worse than a broken leg and a broken arm. But that's how I got to start my morning yesterday morning.
And how do you control these issues? Somebody on the job site has to stand up and make sure that all those trades are working together because you have people that are piece work with minimal supervision, individual trades you can't necessarily count on everybody pulling together on a project you work together on. And somebody is responsible for the payments, the money on the job site. Responsible for the scheduling of the work to be performed. Responsible for the coordination of the project and scheduling of deliveries. I think safety is an issue that ought to be addressed in that area too.
Any questions you have I'll be pleased, certainly welcome.
MR. RINGEN: Steve.
MR. CLOUTIER: Mr. Chairman, I appreciate what these gentlemen have to say but I don't think this is the forum to fight out contract language. I don't believe this language is in the typical AIA documents. We battle as a CM or as a general -- subs don't do what they're supposed to do on a job site, and OSHA's come through and cited us as some subcontractors aren't doing their jobs.
But I don't think this advisory committee is in business to change contract language on subcontract between an owner and a subcontractor, a sub and a general, a sub and a -- This is not the way to do it.
I think the issue is who is not doing their job at the field. The issue needs to be who's going to coordinate the work and nobody seems to want to have that responsibility, the owner or the Federal Government or some product development goes out and hires services of a prime or the subcontractor to complete this -- to do this process. But I don't think this is the way to do that.
MR. LEE: Well, can I address that? First off, privity of contract is always an issue. And there's no doubt that there's times when you get involved for the greater public good. And in our opinion, this is a case of the greater public good. If we want to address an opinion that has been given, we have one here that came from the Solicitor's Office I believe addressing the enforceability or the ability of OSHA to address this. We have this opinion with us. We'd be more than happy to have it circulated around or sent back to the committee.
The second issue about whether or not you have an ability to go in and do it, of course you do. He says it here. The question is whether you want to or not. And the issue here is the employees' safety period. Par none.
Are we going to be responsible for employee safety or aren't we? If you don't want to be responsible for employee safety, sure, let's write all these agreements and let's pass them down as far as we want to.
MR. CLOUTIER: Well, Mr. Chairman, we should talk about employee safety, employer safety, our contract language.
MR. RINGEN: Absolutely.
MR. CLOUTIER: Because on the other side of this coin, a general contractor or a prime or a CM has to sign that whole agreement with the owner or you don't get the job either. The first thing out of the bat, you've got to sign that agreement. It's passed along as it goes down the line.
Now, the particular language that you send out, you send out a copy of somebody's contract that enforces passing along a fine, whether you created it or I. I don't believe this is an -- document. I know it's not the A1A.
MR. LEE: I think we've got a copy of it on the back sheet of that.
MR. CLOUTIER: Is this an A1A form? I don't believe so, sir.
MR. LEE: It's not an AIA form. If you're talking about the AIA form? It's currently being talked about in the 201, but it is not in there. It's not addressed either way in the AIA 201.
MR. CLOUTIER: If it's a safety and health problem, whether the employer supervises his employees or whether the prime supervises that sub or the construction manager supervises the prime, that's a legitimate focused point to bring to this committee to discuss that, but to talk about contract language, it's not an issue for us.
MR. SMITH: I hear what Steve is saying from the committee, and with all due respect as a member of the committee, this issue came up when I was working way back when, you know, back in Maryland with one of the contractors who was general contractor one time and then became a construction manager and switched over. And all of a sudden...and this is years ago...we come on with this hold harmless language for everybody down the line. And it presented us with a major problem back then, and the reason it presented us with a major problem was the issue of safety at the job site, not the issue of who's going to pay, or how it's going to be paid out, but the issue ended up being safety at the job site, because what happened in that case is that that liability or who is supposed to control or cover was then passed down the line.
And it presented all of us with a major problem. And it seemed like it would have been...not that it's constitutional now, but unconstitutional to put language in a contract that says if I'm fined by OSHA for a penalty of a safety violation at the job site, and you are my subcontractor and I could have controlled or didn't control or should have controlled, but for the mere reason that we signed this agreement that if I get any penalties, you're going to pay them, that seemed like it was an unconstitutional provision at that time.
Now, we've argued that point for a long time about it. What happens in that case is that, and they stated it specifically well, is that the individual who is subcontracting out the work, they is supposed to be language that says you're supposed to look for a, quote/unquote, "the lowest responsible bidder." What happens is that word "responsible" gets taken out of the equation. It ends up being lowest bidder. Because I have no problem at that time because whoever is going to get the work is going to assign this indemnification clause that if you're not going to do it safely and get penalized, and I'm going to get penalized, you're going to pay for it. I'm not.
So I don't need to worry about the responsibility part as much at that point. I'm just at the lowest bidder part of it. And that's wrong. So they raise a big issue.
Whether it's in front of this committee or not might be another question, but the bottom line about it is is that if the controlling contractor, or the awarding contractor, is given out work to the subs, and at that point in time he's not worried about a responsible sub, he's just worried about a low sub, and if he gets any penalties because he does control the work site at one point, even if...and this was brought up about deadlines...even if he controls deadlines, which in that case, as was stated earlier, he might not be a controlling contractor, but even you push up deadlines or change deadlines, you control the job at that point because then your subs are under a different time frame, and things are going to get cut.
Now, I'm telling you from experience on the job site, the first thing that gets cut in a job is the safety side of it. Because instead of digging a trench the right way, or instead of using property protections the right way, it's going to take it longer to get done, they're going to cut that...they're going to make them sure cuts.
And that's the things that we can't allow to happen.
Steve, I'm sure you're going to comment, because at one point in time, a few years ago, I thought that it was taken all the way up to the Review Commission at some level where that hold harmless clause was thrown out under the OSHA guidelines, that if we give you a penalty, you can't pass the penalty on to somebody else. It's yours.
MR. JONES: Actually I'm going to...
MR. SMITH: But in any...I'd like to say that whether it's...even us. I mean I'd like to see that this is an issue that somewhat doesn't fall off the table at this committee level because we might not agree as a committee, but I'm telling you it's a problem in the work place and it's a major problem when it's passed on. Because if I have no responsibility for it, I'm just going to hire whoever I want to because you're not going to hit me. And that's wrong. So the committee definitely needs to look at it.
MR. BURKHAMMER: I think there's two issues here. The first issue is a contractual issue. And this committee was not put in place to argue or discuss contract issues between owners and employers or employers and subcontractors.
I think the issue that you raise though goes back to the multi-employer work site situation. And when the definition of multi-employer work site came into being, and penalties and citations started to be issued to primes and generals because of delinquent subcontractors, prime and general contractors got smart and decided, wait a minute. I'm not going to get stuck paying a penalty of a citation that was given to a subcontractor when it's their fault, not mine.
And so they started putting in this language, maybe five, six years ago, I think is when the first time we started seeing it.
And it's now pretty paramount throughout the industry. We don't use it and I don't think that Steve uses it, but a lot of contractors use it.
So I think the issue for this committee is not the contractual side of this thing. It's the multi-employer work site issue. And I think if we concentrate on that, we might be able to help some of the things that you're asking for, but I don't think we want to get involved in contractual issues.
MR. RINGEN: Anybody else then?
MR. COOPER: This is obviously nothing new. The hold harmless clause is not under the safety problem.
COURT REPORTER: Excuse me. I have to turn the microphone back your way. Thank you.
MR. PALLASCH: Well, if you missed some of it, you didn't miss much.
MR. COOPER: I can certainly understand the general contractor's concerns in this area, which two are on this committee. And we discussed hold harmless clauses with the Solicitor's Office and with OSHA for 18 months. And we did some regulation as dictates in regulation in the manner in which particular things would be handled on the job site and whose responsibility it would be.
But my question to you is this. To bring this issue before this committee trying to get...or hopefully to get some assistance in this problem, I don't understand what your procedure would be if this committee agreed with you.
Then what? Then what would happen? We would advise OSHA to look into particular things?
I think you have a document from the Solicitor's Office there. What's the date on this document?
MR. CLOUTIER: Steve, we don't have a copy.
MR. COOPER: I know. This is the only copy and I'm not giving it to you. I'm going to hand it to you but it has no date on it, but it is an opinion from the Solicitor's Office here that it says, "In sum, there appears to be no basis to read an indemptive bar into the OSHA Act. If OSHA did wish to make such contracts illegal, it could probably do so by regulation." I don't know what date is on this or what's occurred.
If you could pass it over there. Just because they're a general contractor...
MR. RINGEN: Maybe at this point it would be proper to have our Solicitor comment.
MR. COOPER: It seems to me that your concern would be more directed toward the Solicitor's Department and we tried to use the hold harmless clause to our advantage because we felt a lot of our employers or subcontractors were getting the short end of the stick, because as you know, it just goes down to the bottom guy, and the last guy that signs it carries the load. And you have no choice but to sign it in most cases.
Now, I know some steel erectors who knocked that out of the contract and still get the contract, but I know that's not normally how it's done. And I certainly agree with Bill Smith's comment on that issue.
MR. RHOTEN: If I could. I agree with Bill Smith's comment also. You know, I don't think...I agree too that we shouldn't be talking about contracts between subcontractors and general contractors. But I think it's quite proper that we address the issue of whether or not OSHA allows those kinds of agreements to take place period.
OSHA doesn't allow contractors to sub out their responsibilities for training and put it on the employees and the contractor is solely responsible for everything in that OSHA Act. They won't let them move that responsibility over to a third party.
And what I see here is a general contractor in a position to move his responsibilities over to a third party or a second party, whatever it is. And I think it's an issue that's proper to be addressed, whether there's any conclusion reached, I think it's proper to discuss it.
MR. PALLASCH: It seems like to me just basic employment as a contract to, if we're here discussing whether an employer could pass to their employees any OSHA fines that might be acquired on the job, everybody would be saying, "No way, they have no power to control." It's just another form of contract and another effort to push away from the one most likely to be able to control and change and affect improvement to someone who has no power to do that.
And it seems like to me that the heart of this is the issue of occupational health. And any time you get the party who has the power to change and improve away from the responsibility, you're going to not have so much change. And I think that's why we're here and we can call it contract or call it, you know, volatile employer sites, but I think it's about power and change. And I think what the contract does is it really changes the probability of that ever occurring.
There can't be a more appropriate than discussing multi-employer job sites here at this meeting. This is a multi-employer job site issue, and it is a safety issue.
MR. SMITH: Before Steve goes, we've got to clear some up because we were trying to figure it out.
Let me give you a scenario. One housekeeping issue.
You are the contractor on the site, right in the area that's going to be violated, or get the citation for housekeeping. Okay. So you get the citation for improper housekeeping and the general gets a citation also. Right? That's the scenario.
Now, you are going to pay your fine or you're going to fight it, but either way, one case or the other, you're going to win or lose, so you either pay the fine or don't.
Under those circumstances, when you pay your fine, the general is also going to pass his fine down to you, so you're going to pay both? Is that the argument?
MR. LEE: Absolutely.
MR. SMITH: And that's what I'm saying is wrong. And that's what...
MR. CLOUTIER: That's a good point. Absolutely.
MR. SMITH: But it's no different than when you get cited for something that you did wrong and the general gets cited. You get hit both ways. It goes up the alley too.
MR. MEIGHAN: Well, in this example that we have here, one of the citations...I have a copy of it here. I gave Brian a fresh copy of it.
The general contractor, I know for a fact, got fined monetarily. We did not. We also fought it and won. They threw it out.
MR. SMITH: But you didn't get fined because you're a smaller entity when the general has probably got the deeper pockets, so he got the fine.
MR. MEIGHAN: In that situation, they got the...
MR. SMITH: Did he pass the fine back to you?
MR. MEIGHAN: What the reasoning was there, I don't know. This happened so recently, I'm just waiting for it.
MR. LEE: First off, you don't have a situation where an inspector comes on a job site and writes one fine for one item. Have I ever seen that occur? I've been in business 27 years, so far I've never seen one fine for one item. It's certainly a possibility. In the instance of one fine, for one item, there may be an argument to be made that that could be sent back. I would still say that it is the general contractor's responsibility to overall look at it. He has the right to go and appeal that and probably on appeal would get a better decision. But he has no incentive, number one, to go appeal it if he's going to pass it off. Where is the incentive? There is none.
Number two, what's going to happen invariably and what does happen is that there are multiple fines. Multiple employers, multiple fines. Somebody has got to be responsible. The ultimate entity has to be there.
MR. MASTERSON: Well, actually I'd like to make two comments. The first one is, there's a real simple solution and that is to make every employer directly responsible for their employees, and their employees only.
To give you the reverse scenario, I had a situation where the compliance officer showed up. I had a contractor with a brand new extension cord. His employee pulled the ground prong so there wouldn't trip a GFI, even though that doesn't have anything to do with the GFI. My citation was $10,000. My supervisor had no way of knowing.
Now, is that fair to the general contractor in that situation?
MR. MEIGHAN: That the subcontractor was using unsafe equipment?
MR. MASTERSON: If the employer is responsible for their own employees, there should be no passing of fines in either director.
MR. MEIGHAN: On this same citation with the housekeeping, the most recent, it's interesting you brought that example up. We also got a citation on that same visit because our employer was using a ground fault that did not operate, but fortunately we had grounding program. And it was in operation. Our grounding program was in effect at the time, and I documented that and was able to demonstrate that. But the electrical contractor and the general contractor did not get a citation for that one. So in that situation they put it specifically on our company because we were the people using that piece of equipment at that time. But the general contractor and the electrical contractor, neither of them got the citation on that issue.
MR. MASTERSON: I think all the more reason to establish a policy that would require employers to have direct responsibility for their employees and not somebody else's. My employees are required to check GFIs before they use them. That's part of our program, whether it's once we install or somebody else.
MR. MEIGHAN: I compliment you on that.
MR. MASTERSON: It's a common practice. You know, it's real easy to sit anyplace and say let somebody else take the responsibility for my employees' actions. I think every time that I've seen the responsibility for safety move a step away from the direct employee, the further away from a safe work site you get. The further I see the control is from the employee, the less they pay attention to it.
If I moved my safety responsibility from my supervisor two levels up to his boss, all of a sudden my supervisor is saying, "Well, he's the safety cop." And I'm finding the same thing to be true with my subcontractors. As soon as I put a person on the job site with sole responsibility to monitor safety, they no longer take responsibility for their employees' actions.
MS. JENKINS: In their own issue paper, they say that they should be doing their own tasks and employees', so therefore an employer is responsible for their own employees. In most cases, we find that generally by contract has to put up perimeter protection or cover holes, and in most cases it is the subcontractor that takes protection down or lifts up the cover of a hole and has an injury.
So why then shouldn't that subcontractor be penalized for that fine? Why should the general have to assume a fine that a subcontractor came in and took away the cover?
MR. LEE: If the subcontractor is solely responsible for it, there's an argument to be made there. What you're going to find though again, realistically, when you go to these job sites is that you're not going to find one violation. You're going to find multiple issues of it and it becomes a question of who is going to be responsible for the whole job site. You have an overall job site that has to be someone put in charge of it. Scheduling issues. If you schedule a backhoe to dig in under my scaffold. I'm a mason recontractor, you have just created the problem, not me. I did not have that backhoe digging in under that.
If that scaffold has a problem or it gets written up for the problem, or it's even too close to the scaffold, or even, better yet, he just comes within the restricted zone, I will receive that fine. If you scheduled him in there, told him to go in there, made him go in there, you should be responsible for that. It gets into overall job site responsibility, coordination of the whole site. Who is going to be responsible for it.
MS. JENKINS: But you need to be responsible for your employees that are in that area that are exposed.
MR. LEE: Absolutely.
MR. MEIGHAN: We fully agree with that.
MR. LEE: We fully agree with that.
MR. MEIGHAN: If anybody believes that we're trying to say we shouldn't be responsible for our own employees, that's not out intent.
MS. JENKINS: But the contractor can't be responsible for every employee on the job.
MR. RINGEN: I think Cooper then Harry.
MR. COOPER: You know, I don't think we need to talk about particular cases. I can give you 100 either way. The backhoe and housekeeping, you know, and you can read it either way.
What it really comes down to is what you're saying is that you have your safety program and the other contractors on the job have theirs and the general have theirs. And you want to pursue yours and if you're in violation and get caught, then you will take care of it at that time as far as citation monetary penalty.
But you do not want to pay a monetary penalty or a penalty that belongs to someone else.
MR. LEE: Precisely.
MR. COOPER: That's all you are really saying, isn't it? But you are also saying that your contractual agreement that you have to sign, there's a hold harmless agreement in there, in which you do have to pick up normally the costs that have been attributed to you through the contract.
MR. LEE: More than just the cost that might have been attributed to you. They may well take the total number of fines on the job that they get and divide them up among everybody, even if you weren't present on the site at that point in time.
MR. COOPER: That is the cost that they have attributed to you.
MR. LEE: Okay.
MR. COOPER: I know. I've been more...
MR. LEE: They've attributed rather than it was attributable to you.
MR. COOPER: But it's probably going to come right back down and the Chairman's done a good job of holding Steve Jones off me for a while. But it's really going to come back down to the Solicitor's Office in the manner in which they can look into the problem because I'm sure he has a lot to say about it. But you have a contractual agreement that you have to sign and it has a hold harmless clause in it.
MR. LEE: Correct.
MR. COOPER: And that leaves you holding the bag. Does this committee have anything to do with contract administration? Not really. But they have a little bit to do with the manner in which OSHA may cite.
Thank you, Mr. Chairman.
MR. RINGEN: Harry.
MR. PAYNE: The equity issue here, if I'm the prime and I'm huge, big volume, a lot of history with OSHA perhaps. Not Bectel...
MR. LEE: Bectel say they don't use it, right?
MR. PAYNE: But if I received a fine, based on my history and based on the sheer size of my company, I will probably not qualify for any serious reductions the way it's computed. If you're a small prime that works for them, who perhaps might have a good history, and might be small and might not have the resources, you get saddled with something that is not proportionate with what OSHA intended. Even if OSHA decided you should bear some of the burden, is it not...you're not getting the benefit of being small or an understanding about being small, or getting the benefit or positive past history of something that you have to pay for.
Is there not an equity issue here?
MR. LEE: Absolutely an equity issue here. In many instances, the companies have very good records.
MR. RHOTEN: Just so I can identify...try to identify the issues in my mind. What I see is this. That OSHA's got a -- presentation before you gentlemen and held the contractor liable, okay. So you had control of the job site. And what's happening, as I understand it, is that he's going to subcontractors and to use plain words, -- to give him that responsibility. You don't get the job unless you sign this contract.
Now, OSHA's got to decide or somebody has got to decide whether they want to allow contractors to distribute their responsibility, and if they don't do it for training, and if they don't do it for other areas, maybe they should examine whether or not this is a good area...you know, whether they should allow this to happen.
MR. MASTERSON: You know, I think I support safety as much as anybody, but it sounds to me like this is an issue to be fought out in the courts of contract law and not an ACCSH meeting.
MR. RINGEN: Well, obviously it's an important and complicated issue. That's why we're spending a lot of time and everybody wants to speak to it, so I'm not disagreeing with you and I'm sure Steve will have something to say about that issue in a minute. But before he does, everybody has to have their say here.
MR. COOPER: It's not only the monetary issue. Also you can get caught with the willful repeat that doesn't really belong to you. That is the larger issue. That it does not belong to you but since it was upstream, it comes downstream and you get caught up in that situation too. And the monetary issue generally...even with the subcontractor, the small one, many times it's not going to kill you. But a willful and a repeat can kill.
MR. RINGEN: That may or may not be the case. It depends on what kind of contract you have between the prime and the sub, indemnifying over this issue. I guess...
Well, wait a minute...Stew, then Steve, then Bob I think.
MR. BURKHAMMER: Well, wait a minute. Using the document that you've provided us here, there's a couple of points I'd like to make to see if you agree or I'm misreading this.
And we'll take Stromberg as an example because you are a pretty reputable contractor and we've used you numerous times and we're very happy with your safety and health program. If you use this document here that you have, and you subtract and you substitute Stromberg for subcontractor, it would read something like "Stromberg shall strictly observe and comply with all applicable safety laws, rule and regulations, including applicable OSHA standards, and with the Accident Prevention Program required under the applicable provisions of the contract documents, and/or as directed by the contract." Agreed? You agree with that?
All right. And then you go down to the bottom here where it seems to be what everybody is questioning, and it says something to the effect that "The subcontractor shall indemnify hold harmless...or Stromberg shall indemnify hold harmless and defend contractor..." Meaning the general or prime..."from any citations, fines, or penalties assessed the general contractor by the Occupational Safety and Health Administration or any other state agency with authority with jurisdiction over work place safety and health relating to or arising from Stromberg's work performed." Right?
So the issue is that the general or prime contractor is being near a citation for negligence or violations on the part of the subcontractor in our scenario using Stromberg, even though they don't do that. But using Stromberg as an example. Is that right?
MR. COOPER: Correct.
MR. BURKHAMMER: Okay. Now, go to the first page where there is the proposed language for ACCSH, if you read the last sentence, we'll come back to it. F-4, "Employers"..."employers" is the key word here. Employers...
MR. SMITH: Excuse me. Where...
MR. BURKHAMMER: F-4 on the first page where it says "Subcontractor, proposed language for ACCSH." Right here. Are you with me?
F-4, "Employers shall be prohibited from contractually transferring liability for citations, and/or penalties, for violations of the Act to another party." The employer is the contractor of the employees, not the prime. Right?
MR. SMITH: Not necessarily.
MR. BURKHAMMER: I'm not an employer. I don't have any employees. You do.
MR. SMITH: You are the prime contractor on the job and you have no employees on that job site?
MR. BURKHAMMER: Most primes in this particular case would be a construction manager to the contractor who they hire.
VOICE: In this area, we have a construction manager. I can see where you are going with that.
MR. BURKHAMMER: Thank you.
VOICE: So have to change it from "employers" then. So if you change the word "employers," it'll still fit.
MR. BURKHAMMER: No, it wouldn't. I'm not an employer.
VOICE: You could just make it "contractors, prime, sub, general."
MR. BURKHAMMER: But wait a minute now. You are writing the language for them.
VOICE: It's a problem with job sites. That's a given.
MR. CLOUTIER: If you go back to Stew's scenario, you should not be held in violation of the electrical problem because you are not a licensed electrician and not a licensed electrical contractor. If that's who provided that temporary power panel that you plugged into, so you have a defense there.
Now, if you created a housekeeping violation from your sheet metal operations, and you get hit as a sheet metal subcontractor, and then if the general gets hit, he's not happy with you so he's getting you again.
I don't think Mr. Lee would sit there...and he sits there and says "Well, generals don't care." We do care. Because we can't stand to have this track record of constantly being hit just like any other contractor that's in this business, whether you're a sub or a general contractor.
VOICE: Well, you don't have the hold harmless clause.
MR. CLOUTIER: We have a hold harmless clause with the owner.
VOICE: That should be taken away too.
VOICE: No, I fully compliment the general contractors that don't have the hold harmless clauses and also do participate and try to have an effective safety and
MR. CLOUTIER: And the issue is on multi-employer sites, the employers should be responsible for their employees, period. So if you're the general and you have employees, you are responsible for your employees. If you're a sub or a prime, you are responsible for your own employees. And that's the way it should be. It should be, and as we've been doing the last couple of years, when you nail everybody on the site with a shotgun blast.
MR. BURKHAMMER: Well, that's exactly what has happened in both of my situations where I've been cited. Even in the informal conference where I've had all the pictures. "Now, look. This is the floor where we were working on. Look how clear this floor was." And the compliance officer, the supervisor, at that time said, "Well, how did you get to that floor. You had to walk through the first floor, didn't you?" "Well, yes, but I had no other access to it."
MR. SMITH: The example is that of controls. That's what we're saying. If the general or the manager has control of the job site, then by definition that Berrien just gave, if he has control of the job site and can't control the subs, then he should be liable or responsible.
MR. BURKHAMMER: But that goes back to the multi-employer work site issue that I said originally. That's the issue here. Not the contract.
MR. RHOTEN: Okay. I think what we're talking about is what does this contract say, what does this proposal say. I think we've getting way ahead of ourselves. I think what we should do, from my position, as I see it, allow that contract to exist -- intent of the law as laid down by OSHA.
Now, maybe look at that issue period and forget about the contract.
MR. RINGEN: Let me now recognize Bob as the final say in this before we hear from Steve Jones.
MR. COOPER: Well, wait a minute. If he's final, how can he be...
MR. RINGEN: Well, he's the...no, no, he's not final. For now...
MR. COOPER: Attorneys always have the last word.
MR. MASTERSON: Steve made the reference that the general contractor could create a situation where a subcontractor working for him could experience a repeat violation. In fact, my experience has been just the opposite. I've got framers working in 19 different states. They can go together and in most cases where I've received the two violations, it's been because of violations that were created by a subcontractor's employee.
MR. COOPER: That's a given.
MR. MASTERSON: But it goes from repeat to willful.
MR. RINGEN: We're going to hear from the lawyer and then we're going to get back to this, because we can argue this, as Steve said earlier, there are 100 cases on this side, 100 cases on the other side.
Steve, go ahead.
VOICE: Make it short.
MR. JONES: This is a subject that we addressed a few years ago in draft memorandum that, Mr. Lee, that you brought here today was in fact a document that was created in part of the Solicitor's review of this issue. The fact that it remained a draft memorandum is indicative of the fact that the Solicitor has not made a formal recommendation to OSHA on this issue. But the presentation which I made, and it's probably a good five years ago now, on this very issue, when the Subcontractor's Association, in the person of Rick Palmer, previously brought this to our attention, was that such contracts are not unconscionable as a matter of constitutional law.
And that the Agency, through its lawyers, reserves judgment on what action, if any, can be taken in order to address what might seem to be oppressive terms used in contracts which would serve to contradict the purposes of the OSH Act.
And that's where things stand as far as the Solicitor's Office at this time.
And I could add, Mr. Chairman, since you provided it to me, that under the Construction Safety Act, there is language in the implementing regulations in subpart B which do address the proscription on the holding harmless of general contractors on behalf of the...to force the subcontractors to bear the burden of citations.
So in the confines of the Construction Safety Act, the Agency has taken action, but as far as the larger OSH Act jurisdiction, there has been no action
MR. RINGEN: And what does the Construction Safety Act say about...to be real clear about it, what does it say about...
MR. JONES: Well, Section 1926.16, which is Rules of Construction, and it applies only to actions brought under the Construction Safety Act, says that "The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a job site basis rather than individually. Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first aid or toilet facilities thus relieving the subcontractors from the actual but not any legal responsibility..." and here's a parenthetical..."or as the case may be, relieving the other subcontractors from this responsibility." Close parenthetical. "In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part." This is subpart B of Part 1926, "For all work to be performed under the contract."
And, again, the Construction Safety Act applies only to federal or federally supported contracts with a value of at least $100,000.
MR. RINGEN: The issue, as I understand it, and having listened to this discussion, is really two separate issues. One is the one that we all have agreed on, and it has to do with coordination of activities on multi-employer sites.
And it's still my belief because of the kind of things that we hear here that there isn't...because we get these cases on one side where the sub is held responsible for whatever the prime should have been responsible for and vice versa. We hear this all the time.
And so that citations flow like this in perhaps a way that suggests that there isn't great consistency anyway in the implementation of the multi-employer policy throughout the Agency in its field operations. That's one issue. It's a legitimate issue.
And probably there needs to be better guidance on that, and that was part of the purpose of getting this program standard that we've all worked on for the last few months.
There's another issue here that has to do with duress between...and I'm not a lawyer but the duress between contractual entities on a job site. And clearly none of us believe that any prime contractor should have the right to force subcontractors to either act in an unsafe manner or take responsibility for some unsafe behavior that they were not responsible for. We all agree on that, I believe, around here.
The question is in that second instance where you are forced to sign such a contract or you do enter into it in order to get the work or whatever it is that you end up doing out there, it's a question of is this activity of imposing duress on you a matter that belongs within this committee or within an OSHA standard.
And I think what you've been trying to say, Steve, is that OSHA has the right to enforce, if I understood it correctly, whatever provisions there are, but to require the relationship between prime and subcontractors to be not acted upon out of duress.
Is that right?
MR. JONES: Okay. A contract which is entered into under duress is severable. I mean it is...that is grounds for overturning contractual terms if there is oppression or duress exerted on one of the parties. And that's just basic contract law. That's not a matter of OSHA in particular.
No. What I said was, first off, that a hold harmless agreement in a contract is not per se unconstitutional.
MR. RINGEN: Right.
MR. JONES: And that OSHA's concern would be that the enforcement of a hold harmless agreement not contradict the purposes of the OSH Act.
MR. RINGEN: Right.
MR. JONES: That's the one point at which the Agency would have some concern. Whether that concern would be expressed through regulation, which is a matter left undecided in the memorandum that was drafted and that has been mentioned here, or through legislation, and whether such legislation would itself prove to be constitutional, again are matters regarding which the Solicitor has not expressed a formal opinion.
MR. RINGEN: So the question is in terms of our own work, maybe...I think we all agree that we're not in the business of policing contractual relationships between different employers. But the business of trying to make sure that workers are protected adequately.
And one way to deal with this would be simply to say in terms of our recommendations, to make sure that OSHA, if it develops the Program Standard, in this area assures that there's consistency between what's being proposed and what's already in the Construction Safety Act.
Would that cover it?
MR. JONES: Actually I'm not in a position to express any preference for what OSHA would do as a matter of policy.
MR. RINGEN: Okay.
MR. RHOTEN: Mr. Chairman.
MR. RINGEN: Yes.
MR. RHOTEN: Could this board inquire of the counsel's office to clarify this issue? You say they haven't made a determination on it. Are they looking at it? It's like they don't want to address the issue.
Couldn't we at least ask them to address the issue on whether or not it's legal? Could you get that information?
MR. JONES: You are certainly within your rights to ask the Agency and in turn see if the Agency will ask its lawyers if they would provide a formal opinion.
MR. RHOTEN: Well, I agree there's no sense in committee's meeting in a vacuum and then, you know, you have the magic answer in your office. Somebody in your office has the magic answer as to whether or not they think it's legal.
MR. JONES: Well, Bill, I'm not sure anyone has really taken this to the point of forming...
MR. RHOTEN: An opinion.
MR. JONES: ...an opinion, indeed. And you've raised an interesting point. Whether it is indeed something which can be produced if requested by the Agency.
MR. RHOTEN: By the committee. I mean if we requested the counsel's office...I basically believe that it is circumventing the intent of that law personally. And I would like to, if the committee agreed, to ask the counsel's office to get us an opinion.
MR. RINGEN: Are you going to make that into a motion?
MR. RHOTEN: Yes, I'll make that a motion, yes.
MR. RINGEN: Okay. We'll get back to that.
VOICE: You are not asking for seconds at this point?
MR. RINGEN: No. We're going to get back to it.
MR. COOPER: But the issue...there's another issue here. There's another issue here, and that's if OSHA cited properly, then maybe this wouldn't be a problem. I know that Bruce cannot imagine where OSHA might...that that could occur, wouldn't occur. But it still comes back down to a training and a policy issue for OSHA if they could instill and monitor their job cops, which are CSHO's officers, and really try and pinpoint just who created the hazard, realizing that if your employees are exposed to it, you can also be liable. But to kind of work that out, and if you cited the hazard properly, you may not have this problem. And I can tell you right now, you're not going to get an answer from the Solicitor's Office on this. But I do want to commend Steve Jones who gave one of the best concise to-the-point answers that he has even done before in his life.
MR. RHOTEN: Does that mean that we're not going to get an answer? Is that it?
Would you second my motion and let's find out?
MR. RINGEN: We'll get back to it.
MR. MASTERSON: Actually, I have a couple of questions.
First, did I understand you correct, 1926.16 only applies to government contract money?
MR. JONES: It applies to federally funded or federally supported construction contracts with a value of at least $100,000.
MR. MASTERSON: If it's not federally funded, it would not apply?
MR. JONES: That's correct.
MR. MASTERSON: Okay. Does OSHA apply that standard outside of federally funded?
MR. JONES: Not to my knowledge. That is Subpart B, which is strictly...
MR. MASTERSON: The multi-employer provision is not an offshoot of that?
MR. JONES: That's an area which I would not be in a position to comment on. Yes, the development of the firm is not an area with which I've had any involvement.
MR. MASTERSON: Okay. Let me rephrase that.
Does the OSHA Act actually show the right to put the responsibility of another employer's employees on an individual organization or a company?
MR. JONES: Well, I believe that the Agency's interpretation of...
MR. MASTERSON: Does the Act?
MR. JONES: Does the Act? The Act, as interpreted by the Agency, does.
MR. MASTERSON: In several courts.
MR. JONES: And the courts have upheld the Agency in that regard.
MR. SMITH: I think Berrien read off what the issue of the controlling contractor was, didn't he? Just prior to that.
MR. JONES: He read off...
MR. SMITH: He gave a definition of what the controlling contractor was on the multi-employer job site.
MR. MASTERSON: He read what was in the FIRM?
MR. JONES: Right.
MR. SMITH: But OSHA isn't held accountable for that like we are. OSHA can violate provisions of the FIRM. And it not cost them a case. A good example is I've got 15 days where I've been cited to respond. And if I miss that by one day, I'm out of order. They can take six months. And it doesn't cost them anything.
MR. RINGEN: I think we could spend the rest of the evening discussing this at some length without coming to any conclusion at this point in time. And this wouldn't be the proper place to try to come to a conclusion about it either.
And I think Bill's suggestion, which we can make into a motion, if necessary, and that is to ask OSHA to explore this issue of the...which is really, I believe, mainly Point 4 in the language that you have here before us, which has to do with the transfer of liability.
If you can explore this and come back to us with a clarification of what OSHA is thinking about doing with this and what it might propose to do in this area, that would be helpful.
I don't know if I stated well what you had in mind.
MR. RHOTEN: I would just like to know if OSHA believes that their laws are being circumvented by these agreements. That's all. And if it's legal. That's all.
We don't need any motions.
MR. RINGEN: Steve.
MR. BURKHAMMER: Since the Solicitor's Office is not a contract attorney...
MR. RHOTEN: Well, I think they have the ability to rule on it.
MR. BURKHAMMER: They don't rule on anything. They give opinions. Judges rule on things I'm sure. I've given a lot of opinions. The judges will overturn a lot of attorneys.
VOICE: If my good friend Mr. Rhoten is making a motion, I'd like hand vote on the motion.
MR. RHOTEN: There's no motion made. The Chairman just made a suggestion that OSHA...we have been circumvented.
VOICE: Coming from the Chairman means it's coming from the entire committee. I may not agree to that.
VOICE: Make the motion, Bill.
MR. RHOTEN: It wasn't my motion. I yielded my motion to the suggestion from the Chair, is what I did, and...
MR. RINGEN: I think Stew has asked us to put it in the form of a motion.
MR. RHOTEN: Well, my motion would probably be a lot harsher than your suggestion.
MR. BURKHAMMER: Well, be harsh.
MR. RHOTEN: No, I don't need to be because I yielded to the suggestion of the Chairman, which eloquently supported my position.
MR. RINGEN: But it would be helpful if before we do anything more on this to get a clarification of what OSHA's position is in terms of the applicability of the Act to situations where liabilities are transferred.
How does that sound? How does that sound to you, Stew?
MR. SMITH: I think we need the information, and then we can act from there.
VOICE: I'll yield to them coming back and saying they can't answer the question...
MR. COOPER: Mr. Chairman...
MR. RINGEN: Yes.
MR. COOPER: Mr. Burkhammer doesn't have anything to worry about because he's not going to get a decipherable answer back.
VOICE: He said it wasn't coming from a judge.
VOICE: Besides that, Bectel never uses any subcontractor clauses anyway.
MR. RINGEN: We're about to take a break, unless there is something more on this issue. I don't think we can go any further with it.
MR. MEIGHAN: Would the Safety and Health Program Standards be an area to address the multi-employer issue?
MR. RINGEN: That's what we're trying to do, yeah. And your association came to us at the last meeting with language, which essentially we adopted as a committee that said that no employer can transfer his liability to anybody else and that each employer is more or less responsible for whatever their actions are on the work site. It's clear about that. It doesn't exempt the fine for having responsibility for selecting qualified subs for monitoring their performance in accordance with the safety plan that happens to be for the multi-employer site and all of that kind of stuff.
Likewise, it doesn't exempt the sub from having a good safety and health program and for acting in accordance with it and in accordance with the safety and health plan for the multi-employer site. I think that was roughly what we agreed to at the last meeting.
Am I correct? Okay.
And that addresses everything that you have as a concern here except for the specific language, about whether we can instill into an OSHA regulation the prohibition from inter-contractual...from contractual relationships between employers. I don't know that.
MR. MEIGHAN: Was the coordination, as far as the safety programs, and the efforts between the various contractor addressing that?
MR. SMITH: Yes.
MR. RINGEN: And now that's going to go and be subjected to full rule-making and there will be ample opportunities when those are promulgated to get into this again in the next seven years or so as it goes through the process. But at this point I think we've done about as much as we can.
With that, let's take a break. And we have to be back here promptly at 3:30 when Greg Watchman is going to start and we should be done by 4:00.
(Whereupon, a brief recess was taken.)
MR. RINGEN: What we'll do is while we wait for Mr. Watchman to come, and then we'll interrupt, we will take some of the working group reports. And we will start with...on the other hand, we'll wait.
Perfect timing, Greg. Welcome.
MR. WATCHMAN: Good afternoon.
MR. RINGEN: Good afternoon. Go ahead please.
MR. WATCHMAN: Thank you. Good afternoon. It's good to see everybody today. Thank you for giving me a chance to give you an update on what we have been up to for the last few months since we last met.
First I want to send greeting from Secretary Herman. She's been on board now about seven weeks, and we are delighted to finally have her nomination process completed.
So far on the job, I think she's shown both a substantial understanding of OSHA issues, as well as a strong interest in workers' safety and health.
She is currently in the process of devoting a good deal of attention to the selection of personnel to fill the vacancies of the Department, including the nomination of a new Assistant Secretary for Occupational Safety and Health.
My hope is that she and the President will reach agreement on a candidate in the next few weeks and be prepared to nominate a person for the position and send that nomination to Congress.
I also want to emphasize her commitment to reinvention and to the new OSHA programs. Obviously she comes from a background in the White House and is very familiar with our Reinvention programs. And she is very committed to them.
I should also note that the White House, both the President and the Vice President, remain very strongly committed to new OSHA programs. Several weeks ago the White House held a leadership conference for Agency heads and Department heads throughout the entire federal government. So all the political appointees for the Administration met to participate in this conference.
OSHA was used as one of two case studies that were the focus of the event that day. And Joe Dear flew in from Washington state to give some remarks.
In addition, Vice President Gore spent a good deal of his hour-long presentation talking about changes at the Agency and recognizing the Agency's efforts to reinvent our programs and our activities.
I think both the Secretary's commitment, the President's commitment, and the Vice President's commitment to new OSHA programs suggest that the nominee for the next head of OSHA will be someone who has a strong commitment himself or herself to these issues.
Now, let me give you a status report on new OSHA projects.
First our Cooperative Compliance Programs. These are the programs that are based on the Maine 200 program in Maine involving the use of workers' compensation data to identify the most hazardous work places in the state, and then offering employers the choice between traditional inspections and enforcement versus partnership, working together with the Agency to establish safety and health programs.
We currently have CCPs up and running in 15 states. This includes nine federal states, and also includes six state-plan states. We currently anticipate expanding this program into the remaining 20 federal states by the beginning of fiscal year 1998, next fall.
Second, our focused inspection program in construction continues. The latest data that I've seen reflect that about one-third of our investigations into safety and health at construction projects, about one-third of those sites are being inspected through a focused inspection. And that's about 459 of 1547 projects, according to the data I've seen most recently.
Third, our penalty pilot is continuing. We have actually completed most of the pilot phase and we are now analyzing the report on that pilot. What we've found is a number of concerns about our ability to deliver the goals of that penalty pilot, so we are now reexamining the parameters of the penalty reduction pilot to determine whether we can make improvements that'll be more consistent with the goals we set out to reach.
Ultimately we do hope to roll out this penalty pilot by the end of this fiscal year.
Fourth, we are continuing with our redesign of all of our field offices around the country. We've currently completed 21 of the 67 offices, and through an estimated five offices per quarter, we hope to complete this project by 1999.
Let me talk next about enforcement. Overall I'm pleased to report that we have rebounded strongly from our decline in enforcement activity last year. As you know, last year was a tough year for OSHA with shutdowns and budget uncertainties and a variety of other events that reduced our enforcement activity.
So far this year, enforcement activity is up 32 percent overall. In construction, our inspections are up by about 50 percent. So far we've conducted, through the end of May, 10,520 construction inspections versus 6898 as of this point last year.
We also have been identifying more significant cases. These are cases typically with the penalty of $100,000 or more. So far this year, we have identified 127 significant cases. Forty-one of these cases involve construction work sites.
In addition, we have continued to find employers that are exposing workers to grave danger around this country. And in a number of instances have brought egregious penalty cases in those situations.
There are three particular construction industry cases I want to bring to your attention. First, Yagel Excavating in Pennsylvania. We are proposing penalties of $120,000 for four unprotected trenches. Richard E. Fowler, Inc., in Florida. We are proposing penalties of $448,000 for a trenching collapse that killed a worker and seriously injured two other workers.
Yesterday, I might also note, we held a ceremony in Florida to congratulate the rescue workers that helped to bring out those two workers that survived the incident.
Third, HDR Engineering regarding work at the Pittsburgh Airport renovation. Here we are proposing penalties of $1.4 million. This is a company that set out with an asbestos abatement plan to remove a lot of the asbestos in the airport terminal that was being demolished. But then prior to implementing that plan, ended up sending 50 or 60 workers in to do extensive salvage operations in that building. Those workers ended up tearing out all of the asbestos from the walls and the ceilings without any personal protective equipment or protective measures.
Ultimately we concluded that this was a very, very serious case of violations and we are proposing penalties of $1.4 million.
I think it's important to recognize that I think these cases can have a significant deterrent impact on employer conduct around the country. We want to send a strong message to employers that when OSHA finds employers that want to work together, we do have partnership programs and compliance assistance activities. But where we find employers that are subjecting employees to grave danger, we will enforce the law to the fullest extent.
In addition, we are continuing our Silica Special Emphasis Program. About half of the inspections we've conducted under this program have been in construction. And I should note that we have found substantial cases of over-exposure. I think about a third of the inspections we've conducted have produced over-exposures.
So clearly we are getting to work places where workers are in need of protection.
In addition, we have an outreach and education program on silica that began with our conference earlier this year on silica. I think we had over 600 participants in that conference.
The next step that we're engaged in now is to put on a cyber conference on the Internet. This will allow a continued dialogue among stake holders as well as OSHA and other federal agencies about the hazards of silica and the dangers of silicosis, and what preventive measures employers can take and workers can take to try to reduce the incidents of silicosis.
Let me talk for a moment about standards and give you a sense of our regulatory program activities. In January, as you know, we issued the Methylene Chloride Standard. In February, we issued a piece of the record-keeping rule to clarify our authority to collect work site-specific data through a mail-in survey from a variety of high-hazard employers.
In March, we issued the abatement verification rule to clarify employer obligations to verify abatement of hazards to OSHA. We tied the obligations for documentation requirements to the severity of the hazards we found. So that only in the more serious cases would employers be required to provide documentation of abatement.
In most cases, employers will simply need to provide a single sheet of paper that certifies that they have abated the hazard to be found.
Ultimately we estimate the abatement verification rule will save employers about $6 million a year.
In this month, in a few days, we expect to publish the longshoring rule, updating all the longshoring standards for the maritime industry. In July we expect to publish a proposed rule on tuberculosis. And later in the fall we except to issue proposed rules...actually final rules for respirators and for record keeping.
Let me talk briefly about several specific construction regulatory projects.
First, steel erection. I am very, very pleased to report that we do appear to have a consensus on the remaining issues at this point. And we are hoping to have a signing ceremony with the formal negotiating rule-making committee in July.
We ultimately will be seeking a waiver of the SBRIFA regulatory panel requirements, so that we can expedite our publication of the proposal. And we believe that small business views were adequately represented through the formal negotiated rule-making committee.
Next, safety and health programs. I know this is an issue that has been of great concern and interest to all of you. And I want to thank you for responding to my invitation for your views about whether we should move forward with a separate construction standard or join it, link it up with the General Industry Standard.
In response to the views that you've expressed and a preference for a separate Construction Standard, we are moving forward with a separate Construction Industry Standard for safety and health programs.
Mr. Swanson has appointed Roy Gurnham as a project director for this effort, and Bruce is also in the process of hiring additional staff to accelerate our progress on this project.
In addition, we are scheduling four meetings with small employers around the country on safety and health programs. This will include construction employers, and it will be a prelude to our SBRIFA regulatory review panel process for the safety and health program rules.
Next, let me talk about confined spaces and construction. I am pleased to have some input from the work group on this issue, and we are moving forward with an expedited timetable for development of this proposal.
We are currently engaged in revising our draft text and we want to ensure obviously that the provisions we're considering are consistent with all of our statutory criteria. Ultimately we hope to get a draft back to you within the next 90 days or so.
We are also moving forward on a proposal for fall protection, and we are going to be reopening that rule to address particular employer concerns that have been raised over the past few months since the rule was issued.
And lastly, with the scaffolding rule, we are preparing an appendix that will address the scaffolding erection and dismantling issues that have been raised.
Let me touch on several other issues and then move to some questions.
First, budget. As you know, our current budget is $325 million. We have asked for fiscal year 1998 for a $23 million increase that would put our total budget at $348 million. This $23 million increase is divided roughly in thirds between cost-of-living adjustments and other built-in increases like rent adjustments, another third for partnership activities, including training programs, cooperative compliance programs, VPP programs and other compliance assistance activities. And another third for enforcement for the development of enforcement response teams to ensure fast abatement of work place hazards.
I should also note that with regard to our fiscal year 1997 budget and the $2 million that was specifically appropriated with regard to residential homebuilding activities, that we are in the process of developing a booklet of rules that are particularly applicable to residential homebuilding. And we are also in the process of awarding training grants for the training of employers and workers as well as OSHA staff in the identification and correction of hazards involved in residential homebuilding.
We published a Federal Register Notice earlier this month to start that grant process.
Next our Strategy Plan is underway. We hope to share with you a copy of that soon and get your feedback. This is required by the Government Performance and Results Act of 1993. And it really forces us to engage in planning that we have not engaged in sufficiently up to date. It forces us to look at what we're spending taxpayer dollars on and what we're getting as a result of those expenditures.
I think it's a very common sense effort that in the long term will allow us to demonstrate our value and the value of our programs and activities to both the American public as well as the Congress.
Through the Strategic Plan, we are identify the goals in terms of where we want to be in the next five years, the tools we are going to use to get there, and the measures we intend to use to measure our progress in getting to those goals.
The three goals we have identified in this Strategic Plan include the reduction of injury and illness rates and exposures and hazards; changing work place culture to increase the commitment of and involvement of employers and employees in work place safety and health. And increase in public confidence in the Agency through excellence in the delivery and development of services and programs.
Ultimately, as I said, I think this is a very, very useful exercise for the Agency. We are engaging in longer-term planning than we ever have before. We are integrating all of our different intervention tools in a way that we haven't before toward the advancement of these three goals. And we are focusing on achieving real results in the reduction of injury and illness around this country in ways that we haven't before.
Let me close with some comments about the charter of this advisory committee. As you know, the committee's charter terminates on August 10th. My view is, and I think the other OSHA staff agree, that the committee has served a very, very valuable function for the Agency and for construction workers and employers around this country. And we are in the process of beginning the rechartering effort through Bruce, who is the designated federal official for this committee.
With the exception of the NIOSH designee, Diane Porter, the members of the committee, as you know, either have had your terms expire last September or your terms will expire this September.
So we have published today in the Federal Register a Notice of Request for Nominations so that we can start that process of restarting the committee once the charter is approved.
That's all I wanted to say in my opening comments. I'd be happy now to answer questions.
MR. RINGEN: Thank you.
I think I've had a chance to review the Strategic Plan that you've developed and which I thought was a big improvement over things we've seen in the past and lots of very positive things in it. I think that some of the performance measures or goals are stated in such a way that... some of the objectives may be stated in such a way that they're not measurable like improved training or achieving group training, that kind of thing. But overall I think it was a very big step forward.
I think also some of the goals could be more targeted towards where there are well-identified needs that arise out of the injury and illness data that we have. A big problem among construction is among small- and medium-sized employers in certain sectors. The lack of training is clearly a problem that we see, so there may be possibilities of targeting and looking at...rather than having broad...not that we shouldn't have broad general objectives but underneath those get more focused and specific areas.
But I thought it was really a very well thought- out effort on the part of the Agency.
MR. MASTERSON: Mr. Watchman, about two months ago, I was part of a group that met with you from the Home Builders Association. And one of the questions that we had talked to you about was the multi-employer provision and how that provision was being applied.
Based on some conversations I heard earlier today, there seems to be a lot of inconsistency in how that provision is being applied. And at the time we met with you, you said you would look into that and get back with us.
What have you been able to find out so far? And could you share that with us?
MR. WATCHMAN: I'm afraid I don't have a report back yet on how consistent our enforcement has been and how we might improve it. But I'm happy to report back as soon as I have information on that issue. I recognize that it's an important issue for all of you, and it certainly should be for the Agency as well, to make sure that we are adopting a consistent policy across the board.
MR. MASTERSON: Thank you.
MR. RINGEN: Anything else?
MS. OSORIO: I don't think we saw a draft of the Strategic Plan, did we?
MR. RINGEN: I don't know...
MR. SWANSON: This committee did not, as a committee.
MS. OSORIO: I think there's some parallel efforts then because we have a work group looking at ways to monitor performance parameters for the Directorate of Construction, and I think that one of the things that we were trying to do was come up with specific goals and all that. And the best ways to assess that.
And so it would be nice as soon as possible if we can get a draft for the work group.
MR. SWANSON: Perhaps you'd like to clarify, Dr. Ringen, that you were wearing another hat when you reviewed the Strategic Plan rather than the hat of chairman of the ACCSH.
MR. RINGEN: I think that's why I said that.
MR. SWANSON: But I think, Greg, it is our intention, when we finalize a second draft of this Strategic Plan, that we will share it with a wider group of people...
MR. WATCHMAN: That's right.
MR. SWANSON: ...that will include.
MR. WATCHMAN: That's right. And that should be in the next several days. We'd welcome some input.
MR. RINGEN: And it was actually in the context of looking at that that some of the things that I mentioned occurred.
Any other questions or comments?
MR. PALLASCH: What is the prognosis as far as the additional funds in the budget?
MR. WATCHMAN: It's really too early to tell at this point. I've heard some discussion of level funding for OSHA-related and other labor-related programs. But we have not yet seen a subcommittee or committee mark that reflects the FY '98 figures, so I couldn't say at this point.
I think once the July 4th recess is over, the committee will be scheduling a subcommittee markup shortly after that, so we should know within the next two or three weeks, I would think.
MR. MASTERSON: One final question, at least from me, you had basically a third of the proposed increase in the budget was going to support activities, such as training and things of that nature.
Based on some of the reports I've heard from some of the people that Knut has brought in, it seems to me like training is a very critical issue and it seems that a very small portion of the budget is allocated in that area.
Just how much of that $20 million? You said somewhere inside that it's a third. How much is actually going towards training?
MR. WATCHMAN: We're actually looking to almost triple our training budget. We are looking for an additional $4.1 million for FY '98 for training grants.
MR. MASTERSON: That's great.
MR. WATCHMAN: Thank you.
MR. RINGEN: Stew.
MR. BURKHAMMER: You mentioned record keeping and those of us that have spent what seems like a lifetime working on the revision of the Record-keeping Standard, and you said you hoped that this fall that there would be a...it would come out finally.
Are we still on track for a January '97 implementation, or do we have to wait a whole other year?
MR. WATCHMAN: I assume you mean January 1998?
MR. BURKHAMMER: I mean '98. I'm sorry.
MR. WATCHMAN: No. It does not look like we'll be able to fully implement, especially with the time needed for the states to get their record-keeping systems up and running consistent with the revised federal standard.
I don't think we'll be able to achieve that goal of across-the-board national changes in place by January of 1998. But we are moving forward with the record-keeping rule to try to get it out as soon as we can so that employers have an opportunity to start working with the changes as soon as possible to allow them some time up front.
MR. RINGEN: Any other questions?
Well, thank you very much, Greg.
MR. WATCHMAN: Thank you very much.
MR. RINGEN: Appreciate it.
Okay. At this point we will start with the working group reports, so that we can hopefully finish those up before we leave today, if it's appropriate.
Unfortunately, I have to go to a meeting, so I'm going to turn over the chair to Steve Cloutier, who has seniority I think, who will handle the rest of the program for today and I'll see you all tomorrow morning.
MR. RHOTEN: We can make motions now, Mr. Chairman. Can we vote now on the...
MR. RINGEN: Now you can do whatever you want.
VOICE: We're in deep trouble. Stay a while longer.
MR. CLOUTIER: The first work group report we'd like to have is for Safety and Health for Women in Construction.
MS. SUGARMAN: Thank you, Steve.
I'm going to pass the report around that I have prepared.
Our work group has met twice since our last meeting, once by teleconference and once yesterday afternoon. We are focusing now on the editing and publication and plans for dissemination of the report as well as beginning to think about the outline and audience for the proposed awareness booklet that will make the report we prepared more user friendly and reach a wider audience.
We've created a list of a number of conferences, national and some statewide, that we think would be good venues to present...make presentations about our report. Some of those include the National Safety Council, the Associated General Contractors National Conference, the National Association of Women in Construction National Conference, the AFL-CIO's Working Women Conference, the American Public Health Association, and those are just a sample. There's a broader list here.
Members of our committee are working to see if we can set up those presentations and we have already, through the work of an OSHA staffer, Ellen, been able to secure a roundtable at the American Industrial Hygienists Association for May of 1998.
So we think that this is a good list. We also would welcome your suggestions about other places that might be interested in hearing a presentation on this report.
In addition to presenting at conferences, we are looking at opportunities to promote the report in the media and we've already had two articles published about the report since it was adopted last March. One in the BNA and another in the National Safety Council, Safety and Health magazine. And I will pass copies of both those articles around as well.
I am pleased to report that one of the members of our work group, Linda Goldenhar from NIOSH, was able to secure some funding so that we could continue to work on the editing and the publication of the report. And she was awarded a grant from NIOSH that will enable us to hire an editor to pull the report together in final format as well as there is some funding for design and actual printing costs. So we're really pleased with that contribution and the partnership between our work group and OSHA, because I think having a final copy that's in really professional shape will make a big difference in terms of the dissemination, getting the word out.
Linda was also awarded grant money to begin to work on a project to monitor the effectiveness of some of the recommendations that we made. And her project will be in partnership with the Labors International Union incorporating the recommendations into their existing training curriculum in one test group and not incorporated it in another. And to do a pre-and post-testing measurement of participants' awareness of the different issues in the report as a result of either having the training or not.
We are also working on an executive summary for the report that will be a shorter version, probably a two- to three-page document that could be...that's an extract that you all can use to promote the ideas of the report in a shorter format than the larger 30-page document. And would also serve as a preface to the full report when it's published.
I talked a little bit about wanting to work on the awareness booklet, and at this point we are just trying to identify the framework for what that outline should look like. And on the second page of this report, you'll see we've begun to just identify the questions that are important to determining what the outline of the awareness booklet are. And they include identifying the purpose of the booklet, identifying the audience for the booklet, identifying the message that we want to promote, how and where the booklet will be used.
Will it be a job site booklet that somebody can keep in a breast pocket or a back pocket. Will it be something that will be on the employer's shelf? Will it be loose leaf? There's a number of different questions we want to answer before we actually begin to work on the outline.
So, again, we would welcome any of your ideas, how to best prepare this booklet, and especially if anybody has knowledge or awareness of existing booklets that you think are ideal models, we would love to look at those.
Finally I would like to ask that this committee...at your last meeting, you formally adopted a report. At this meeting I'd like to ask that you make a formal transmittal of the report that we prepared with its recommendations to OSHA. And we would like to have OSHA formally respond to ACCSH in terms of what actions and what time line that OSHA will take in response to the recommendations within the Hazmat report.
So thank you.
MR. CLOUTIER: Thank you, Lauren.
Are there any questions?
If not, Training, Stew Burkhammer.
MS. SUGARMAN: Steve, I made a formal proposal at the end of that report about the transmittal.
MR. CLOUTIER: Would you please restate that and I'll ask for a second? I'm sorry.
MS. SUGARMAN: I'm asking that ACCSH decide today to formally transmit the Hazmat report with its recommendations, both the ones that we adopted to promote and publish the report and create the awareness booklet, as well as the recommendations within the context of the report to OSHA and to ask OSHA to respond to ACCSH in terms of the actions they will take to do that.
I think an example of that is, for example, Steve proposed the work group that's going to look at sanitation issues. And so that's a direct action that I think is certainly...you know, it's as a result of the research we presented last meeting. And there are a number of issues like that within the body of the report that could use similar activities.
MR. CLOUTIER: Do we have a second?
MR. RHOTEN: Second.
MR. CLOUTIER: Is there any discussion?
MR. BURKHAMMER: Last time when we accepted the report, as part of the acceptance, didn't we forward it?
MS. SUGARMAN: I guess, Steve, I'm not sure. And I'm not sure what the process for that is with this kind of report. And to my knowledge, it wasn't...
It was forwarded?
MR. BURKHAMMER: Yes.
MR. RHOTEN: What you are looking for is some comments back, is that correct?
MS. SUGARMAN: Right.
MR. RHOTEN: How well you've developed this information, how it's going to be distributed and utilized or some good made of it.
MR. CLOUTIER: Can we expect comments back?
MR. RHOTEN: You can now.
VOICE: Why don't you seriously formally ask us and we'll respond.
MS. SUGARMAN: Okay, great.
MR. CLOUTIER: Any other discussion?
All those in favor...
MR. BURKHAMMER: You need to revise the motion.
MS. OSORIO: Yes. She needs to restate the motion.
MS. SUGARMAN: Well, I'll just say that last meeting, we transmitted our formal report. At this meeting we're requesting from OSHA a response to the recommendations that we made in terms of what actions they will take and in what time line.
MR. CLOUTIER: Do we still have a second?
MR. RHOTEN: I'll do that, except you can do what I did and just let the chairman go ahead and do that without a vote.
MS. SUGARMAN: Since the chairperson is not here...
MR. RHOTEN: I'll still second your motion.
MR. CLOUTIER: I'm going to call for the vote.
All those in favor say aye.
(Chorus of ayes)
MR. CLOUTIER: Opposed, if any?
There you go.
MR. RHOTEN: You lost mine.
MR. CLOUTIER: Mr. Burkhammer...
MR. BURKHAMMER: Yes, you would, Mr. Rhoten.
Mr. Rhoten and I had a meeting with the Training work group between last meeting and today. We got a lot done at our first meeting and we asked Kelly Lapping and Mark Friedman to draft a working document, which has been done.
The committee has not had a chance to meet and discuss the working document. We plan on doing that. We've had a lot of travel schedule problems and were unable to get together. We were supposed to meet yesterday. We couldn't do that. We were supposed to meet this Friday, but we're also not going to be able to meet this Friday. So those of you who were planning on attending the training work group meeting this Friday, it's canceled.
I'll be sending out a notice of when we'll have the next meeting, which will be shortly. And at the next meeting we'll be able to report back more on the training work group.
MR. CLOUTIER: Thank you.
MR. MASTERSON: Stew, could you make sure I'm included on that mailing list?
MS. OSORIO: You'll send it to all the committee?
MR. BURKHAMMER: Yes. Plus all the non-committee members who participate...
MR. RHOTEN: Including those doing the work.
MR. MASTERSON: Including those doing the work.
MR. BURKHAMMER: Right. Especially those doing the work.
MR. CLOUTIER: Next will be the Confined Space Worker. We did meet. We met yesterday afternoon. Members of the advisory committee and members of the work group. I was present. Bill Rhoten was present. Ted Pettit sat in for Diane Duncan Porter. George Kennedy was there, who is a member of the work group. And a number of other interested parties were there. The Department of Labor was represented. Marta Kent was there. Roy Gurnham was there. Mr. Swanson was there.
We had some lively discussions and the results of the meeting ended up with the committee's report that was transmitted to ACCSH in Spokane, Washington, last August. Will stand as was promoted.
OSHA has agreed to go back and relook at the document. They are going to look at the 1910 Standard and they have agreed to come back to the work group with a draft of a Safety and Health Confined Space Construction Proposed Standard. They'll come back with a draft copy, back to the work group on or before October 1st, was the commitment that we got yesterday.
MR. SWANSON: That's correct, Mr. Chairman. We also...we further agreed that we would...we noted that we'd probably be changing some of the language that the ACCSH draft had. When we did so, there would be a written explanation of why we were making those changes in our draft text, and the committee would be given an opportunity to comment.
MR. CLOUTIER: That's correct.
I am also sending around to members of the advisory committee a document prepared on May 8, 1997, from a staff attorney, subject "Legal Review of the ACCSH-Proposed Reg Text on Confined Space," and they have a number of items here, probably 20 items, that they have questions about that they want the work group to go back and look at between now and one week at the reg text, the reg draft.
And at this time, I've handed it to the work group committee members. I've provided copies to you that sit around the table here so you have it. If you have any comments, please get them back to me. I'll get them back to Gil. Gil is gone for the next couple of weeks. He'll pass that information to the appropriate parties here at OSHA.
If there are some issues that they have some language problem with, they did agree that yesterday, as Bruce said, that there was some problems with what we have given them, we gave them our best shot and we chose not to change what we did. They're going to come back and give us that draft document.
Are there any questions?
Bill, have you got anything?
MR. RHOTEN: No. I might comment. I think that meeting went well yesterday and I'm looking forward to the way this thing is progressing. And it was nice to see today announced officially I guess that we're going to have this separate standard. I think I heard at the meeting was that they are going to do everything they can to accommodate the specifics in construction without jeopardizing what they have to do in the total standards.
So I think it went well, and I'm glad that they took that position.
MR. CLOUTIER: Okay. The next report...do we have a committee member that participated in the Safety and Health Program Management Standard that would like to make a report at this time?
Judy's not here, I know.
MS. OSORIO: Judy's not here, and they're supposed to meet I think Thursday or something. So I don't know if there's much to say at this point.
MR. CLOUTIER: Okay.
MS. OSORIO: I think she's canceled for the whole week, so anybody who thinks it's on, it's off.
MR. CLOUTIER: Next I'll turn it over to Ana Maria Osorio for a report on the Data Collection, and we've mentioned it a couple of times this afternoon.
Now you're on.
MS. OSORIO: Okay.
I'll be very brief. First of all, I want to acknowledge John Franklin, who may or may not be here. He's the liaison person at the Directorate under Bruce, who has been working with me on this.
And just to refresh the committee, the three goals of the work group are, number one...you don't have a handout so don't look for any. "Explore possible and existing exposure and health and safety data sources for construction workers." No. 2, "Review what Fed OSHA, especially the director, is currently doing with respect to data collection and evaluation of its activities." And No. 3, "Suggest which types of information would be good for performance indicators to use in the evaluation of these activities."
And we were supposed to have a meeting yesterday. Unfortunately there was a lot of personal events that were going on with different members and we never had the meeting. But what we did have is John and I spent about three or four hours going over a lot of the forms and all. And I don't think I'm prepared to give a formal report to the committee, but just as a little preview, these are some of the comments that have come up, both in prior committee meetings or me talking individually to some of the prior members.
And some of these were very nicely already said by people earlier today, so it's nice to know that we're all kind of thinking along the same lines.
But I think we feel there's a strong need for federal- and state-based data to be presented that you miss 50 percent of the people if you just talk about the federally covered employees, and we think that's just not good enough.
Number two, in talking about inspections, I think you need to have clear definitions, focused conventional inspections. You know, what do you mean by focused? I think some of these points came out in some of the overheads that we saw.
We also need to look at the number of CSHOs and fatalities and projects, but we need to also try to think in terms of rates because just having tallies or just counts is not good enough.
And as we said, there's various kinds of information we can use, but we feel that the most representative way of doing rates is to try to get estimates of construction workers and do that by state.
I know the regions is the way the feds look at the state plans, but in terms of getting meaningful data and trying to compare the different kinds of construction composition that occurs in different regions, state would probably be a preferable way to do it, but if you have to do regions, do both.
The other thing that we think is important is talk about construction companies, and when presenting this data, try to stratify or group by size of these companies, because we know that the top...the bigger companies are getting a lot of...allegedly. I haven't seen hard facts on this, but allegedly are getting the bulk of the inspections, focused and otherwise, and we want to see what's happening with the smaller size. So we think that should be another way to look at information.
And then we think it's real important to try to get not just general industry but try to break down by SIC codes, or Standard Industrial Classification codes, because we know they're not perfect. But I think by breaking some of this down, and not just talking about all construction workers, but try to have at least general groups, because I think certain groups; i.e., roofers, you know, may have a higher rate than others and all that. And I think there is information to kind of do a little bit of that analysis.
We think it's very important to look at a minimum five- to six-year trends. To look from one year to another is not good enough. There's a lot of variation and a lot of this information. And as we stated before, to look at trends over time is really the best way to do this.
We think it's important to put together the actual process indicators, like number of inspections and focused naturally, and tag that into health outcomes. So if fatalities was one suggestion, and if fatalities, as identified by OSHA, may not be the whole story, then perhaps look at it also with trying to throw in some of the BLS kind of information. And some states have their own registry information. So wherever possible, try to get the most complete picture of health outcomes.
And we also think some of the OSHA 200 information that may occur in a site log, which I think there may be a little pilot program, to try to bring site lot information into the IMS system, so you'd at least get injuries plus fatalities and tag that into the actual hazards that are seen in a work place. And we think you've got to link that exposure with the health outcome.
It's also important in looking at trends five years or more time to note any new initiatives or any new changes in the way the data's being collected in a given state. For example, the Maine 200 program, you know, or some variation of that, that occurred at a certain point in time. That may reflect an increase or decrease in inspections and visits and types of cases identified.
So we think that any kind of major procedural change that occurs in a region has to also be put into that information to make it meaningful.
We also think that some statement, whenever data is presented on the quality. We know that some things like fatalities are pretty hard item, a person is dead, that's a good thing. But some of the circumstances that are known about that fatality or some other kind of parameters may not be, and I think that the more prudent way to present data is to put qualifiers on it, if you think that there may be some possibility of misinterpretation, misclassification.
We also think that it's very important to think in a periodic fashion. So perhaps some of this more sophisticated analysis can't be done every month, but a minimum, once a year, you know, try to look at this in a little more depth and then present it to the ACCSH committee and other constituency groups that need to kind of know or get a feel for how things are going.
And we think that then action should be based on what you're seeing that works and doesn't.
We also...wait, there's one more. I think those are like the biggies. Again, a lot of this was kind of covered in general. And I know I went through this kind of quickly because I feel a little funny because I haven't presented all these summary kind of ideas to the bigger work groups, so we're hoping that I can distribute all this information that we've compiled to all the committee members and then maybe in a month or so have a conference call and we can talk in depth on this.
But, again, I think it's encouraging to know that independently other people on this committee have come to similar kind of conclusions about ways to improve the data review and presentation.
MR. CLOUTIER: Thank you for your report.
Do any committee members have any questions for her?
Is there any other business to be brought before the ACCSH committee today?
MR. SMITH: Steve.
MR. CLOUTIER: Bill.
MR. SMITH: The work group for Subpart N, 1926.550 cranes. We didn't have time to meet prior to the last one about the CCO presentation, but we're going to have an interim meeting between now and the next committee meeting. It'll be posted in a Federal Register Notice and the public is invited to attend.
MR. CLOUTIER: Thank you.
If not, the meeting will reconvene tomorrow morning at 9:00 a.m. in this room. This is N-5437.
The meeting is adjourned.
(Whereupon, at 4:15 p.m., the meeting was adjourned.)
- June 25, 1997
- Washington, DC
This is to certify that the attached proceedings before the United States Department of Labor, Office of Administrative Law Judges were held according to the record and that this is the original, complete, true and accurate transcript which has been compared to the reporting or recording accomplished at this hearing.
BAYLEY REPORTING, INC.
June 25, 1997