<< Back to ACCSH: Meeting Minutes/Transcripts


Editor's notes for the October 19, 2004, transcript: The following phrases and words in this document should appear as follows:

References to Davis Lane should be R. Davis Layne, Deputy Assistant Secretary of the Occupational Safety and Health Administration.

References to Associated Building Contractors should be Associated Builders and Contractors.

References to Subpart B by MS. Silk, should be references to 1926 Subpart V.

References to SBREFA are to the Small Business Regulatory Enforcement Fairness Act.

References to Subpart S refer to 29 CFR 1910 Subpart S.

References to ROPS (Roll Over Protective Structures) refer to 29 CFR 1926, Subpart W.

The phrase "by enlarge" should be " by-in-large."

References to Rick Knightsville, should be Rick Neitzel

References to "reg agenda' are to the Semi-Annual Regulatory Agenda published in the Federal Register.

References to "hex standard" are to the hexavalent chromium proposed rule, Federal Register: 69:59305-59474 [10/04/2004].

References to Matt Gillan should be Matt Gillen.

References to C-DAC are to the Crane and Derrick Advisory Committee.

References to " … the committee decided that a consensus would mean that there are no more than two non-federal descentors." should be " … the committee decided that a consensus would mean that there are no more than two non-federal dissenters."

References to NRTL are Nationally Recognized Testing Laboratory.

References to Subpart B by Mr. Cloutier, should be references to Subpart P.


UNITED STATES DEPARTMENT OF LABOR
ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
WASHINGTON, DC

  US Department of Labor Room N3437
200 Constitution Avenue, NW
Washington, D.C.

Tuesday, October 19, 2004

Volume I of II

The hearing was convened pursuant to notice at 9:00 a.m., ROBERT KRUL, Chairman, presiding.

P R E S E N T

CHAIR

ROBERT KRUL
Director, Safety & Health
United Union Roofers, Waterproofers & Allied Workers

EMPLOYEE REPRESENTATIVES

MR. FRANK MIGLIACCIO, JR.
Executive Director, Safety & Health
International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers

MR. SCOTT SCHNEIDER, CIH
Director, Safety & Health
Laborers' Health and Safety Fund of North America

MR. WILLIAM C. RHOTEN
Director, Safety & Health
United Association of Journeymen and Apprentices Of the Plumbing and Pipe Fitting Industry

EMPLOYER REPRESENTATIVES

MR. MICHAEL J. THIBODEAUX
Director, Risk Management
Lennar Corporation

MR. GREG STRUDWICK
President
Greg Strudwick & Associates, Inc.

MR. LINWOOD O. SMITH
Vice President, Risk Management & Safety
T. A. Loving Company

MR. STEPHEN M. WILTSHIRE

National Safety Director, Sports and Public Assembly Group
Turner Construction Company

MR. DAN MURPHY
Sr. Vice President, Risk Control
St. Paul Fire and Marine Insurance

STATE REPRESENTATIVES

MR. KEVIN D. BEAUREGARD
Assistant Deputy Commissioner, Assistant Director
Division of Occupational Safety & Health
North Carolina Department of Labor

MR. DOUGLAS J. KALINOWSKI, CIH
Chair - OSHSPA/Director Michigan
Occupational Safety and Health Administration

PUBLIC REPRESENTATIVES

MR. THOMAS A. BRODERICK
Executive Director
Construction Safety Council

MR. MICHAEL W. HAYSLIP
President/Owner
National Excavation & Safety Training Institute

FEDERAL REPRESENTATIVE

MS. CHERYL F. ESTILL, M.S., P.E.
Industrial Hygiene Supervisor, Industry Wide Survey Branch, DSHEFSCDC
National Institute for Occupational Safety & Health

DESIGNATED FEDERAL OFFICER

MR. RUSSELL B. SWANSON
Director, Directorate of Construction
U.S. Department of Labor - OSHA

COMMITTEE CONTACTS

MR. STEW BURKHAMMER, P.E., CSP
Director, Office of Construction Service
Directorate of Construction

MR. MICHAEL M.X. BUCHET
Office of Construction Services
Directorate of Construction

MS. SARAH SHORTALL
ACCSH Counsel
Office of the Solicitor
U.S. Department of Labor



I N D E X

Call to Order
Introduction of Members
Standards and Guidance Overview
Overview of Enhanced Enforcement in Construction
ROPS Presentation
Trench Safety Presentation
Crane and Derrick Presentation
Confined Space Presentation
1910 Versus 1926 Standard
Public Comment Period

P R O C E E D I N G S

CALL TO ORDER

CHAIRMAN KRUL: My name is Bob Krul, I'm the Chairperson of the Advisory Committee with the United Union of Roofers here in Washington, DC. I want to welcome you all, especially the new members of the committee. We'll have self-introductions in just a minute.

I want to point out the emergency exits in the room. There are restrooms down here on this end of the hall, and on the other end of the hall. If there is an emergency, if we evacuate the building, you'll be led out more than likely across the street from the fountain, from the visitor entrance that you came in.

If there will be a shelter in place emergency, you will be so notified and told where to go inside the building. Cell phones. Please turn them either off, on silent, or vibrate. That's for the committee members and the audience. We don't like to hear those ringing during the course of the meeting. We appreciate that.

I mentioned about the mikes. Hopefully they will be here. We'll work it into our schedule. If we have to, we'll have them crawling around here if they can do it during the break. We apologize for the late start due to that.

As I mentioned, you filled out those security photo applications. We'll be taken down in groups of four or five by a member of staff. You'll go down and get your security photo. You'll have to have a new one for entrance into the building.

On the agenda is a public comment period. I would appreciate it if members of the audience or anybody who wants to participate in the public comment period, if they would see me at sometime before the public comment period this afternoon and give me your name and what you'd like to speak on.

With that, I'd like to go through introductions, starting with Bruce.

INTRODUCTION OF MEMBERS

MR. SWANSON: I'm Bruce Swanson. I am the designated federal official from the OSHA Construction Division.

CHAIRMAN KRUL: Tom?

MR. BRODERICK: I'm Tom Broderick of the Construction Safety Council in Chicago. I'm a public representative.

MR. MURPHY: Dan Murphy with Allied North America.

MR. THIBODEAUX: Mike Thibodeaux with Lennar, Houston, Texas.

MS. ESTILL: Chery Estill with NIOSH, Cincinnati, Ohio.

MR. SMITH: Linwood Smith. I am Risk Manager and Vice President of the T. A. Loving Company in Goldsboro, North Carolina. I'm also Chairman of the AGC Safety and Health Committee.

CHAIRMAN KRUL: Steve?

MR. WILTSHIRE: Steve Wiltshire with Turner Construction Company.

MR. MIGLIACCIO: Frank Migliaccio with the Iron Workers International here in Washington, DC, Executive Director, Safety & Health.

MR. RHOTEN: Bill Rhoten, Plumbers and Pipe Fitters International.

MR. SCHNEIDER: Scott Schneider, Laborers' Health and Safety Fund of North America.

MR. KALINOWSKI: I'm Doug Kalinowski with the Michigan OSHA program.

MR. BEAUREGARD: Kevin Beauregard with the North Carolina Department of Labor and State Representative.

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

MR. HAYSLIP: Mike Hayslip, NESTI public representative.

MR. SHORTALL: Sarah Shortall, Solicitor's Office, ACCSH counsel.

CHAIRMAN KRUL: Thank you. Welcome. Welcome old committee members, welcome new committee members. Glad to have you here.

Again, for the public, if you find it difficult to hear, please bring your chair up here on either one of these side walls. We won't say anything if you do. It is going to be difficult to hear at some point in time. I'm going to be yelling at people, because the court reporter has to pick these comments up and make a transcription of them. She is operating at a real disadvantage.

Davis Lane is scheduled to come down to present some remarks to the committee on behalf of the Assistant Secretary, John Henshaw. We're looking for him to be here in the next couple of minutes. So we've got like two or three minutes to kill here. Does anybody have any questions around the committee? Or does anybody have anything? Scott, your DVD presentation?

MR. SCHNEIDER: I don't have my laptop, and it won't work on Mike's today.

CHAIRMAN KRUL: So we'll have to do that tomorrow sometime with your laptop? Okay. That will be great. Anything from the directorate until Davis gets here?

MR. SCHNEIDER: Mike Buchet has the disk. He might be able to put it into Tom's laptop.

CHAIRMAN KRUL: Well, we can check that out at the break. If we have something to -- is there anyone in the public who knows that they would like to present something during the public comment period later this afternoon?

VOICE: We have someone coming that will later on this afternoon.

CHAIRMAN KRUL: Would both of you write down your names and just briefly what you'd like to speak about, so the Chair can have that later. I appreciate that. Thank you. What did I forget?

I spoke to the new labor member on this committee, Tom Kavicky from the Chicago and Northeast Illinois District Council of Carpenters. He is the appointment replacing Joe Durst. Tom's wife is scheduled for surgery, and therefore, he could not make this meeting.

We had been in contact by e-mail. I know he contacted Mike Buchet, and Mike Buchet forwarded that message to me. On behalf of the committee, I know we haven't met him yet, but I gave him the committee's best for a speedy recovery for his wife. So we hope to see him at the next meeting? Do you know him?

MR. BRODERICK: Oh, yeah. Sure.

CHAIRMAN KRUL: Let us know how she made out, if you will.

MR. BRODERICK: Okay.

CHAIRMAN KRUL: Could we have, starting with Linwood, why don't you give us like a 30-second little bio from the new members since we're killing some time? I'll put you on the spot.

MR. SMITH: First, it will take a while for everyone to understand my southern accent, but I appreciate your patience on that. At least we have one other guy from Carolina, so perhaps he can translate. I appreciate that.

I have been in safety and health for probably over 30 years. I'm getting a little old. My first job out of college I was an adjuster. Then I worked with North Carolina OSHA for about 14 years, 12 of which I was actually in OSHA. Then I went to work in the private industry. I built some houses for a while, and then went to work for the construction company.

I have been there about 16 years. We have a commercial division that builds a lot of hospitals, a lot of healthcare facilities, a utility division -- wastewater treatment plant, water treatment plant. We've got a small heavy bridge division. It used to be a lot bigger, but they weren't making any money, so we've downsized a little bit there. That's about it.

I've been associated with AGC for a long time, and Chairman of the government subcommittee for a number of years. I had the opportunity to work with Bruce, Steven, and other guys up here for an amount of time. I'm definitely a proponent of safety and health. I've been in it all my life, basically.

It is great to be on this committee. I've heard a lot of good things about it. I look forward to working with you guys.

CHAIRMAN KRUL: I understand you chair the AGC Safety and Health Committee?

MR. SMITH: Yes, sir.

CHAIRMAN KRUL: Welcome.

MR. SMITH: Thank you.

CHAIRMAN KRUL: Steven?

MR. WILTSHIRE: I'm Steve Wiltshire. I'm with Turner Construction. I have been in construction safety about 24 years. Not quite 30 yet, but I hope that I'll get there one of these days. Eight years with Fluor Daniel, a short time with Virginia OSHA, and then 15 years with Clark Construction, and two years with Turner.

I'm kind of a local, I think. I live in Fredericksburg, Virginia, so about an hour away. I am representing the Associated Building Contractors. I the assistant chair of the National Safety Committee.

CHAIRMAN KRUL: Thank you. Welcome, Steven. Doug?

MR. KALINOWSKI: Doug Kalinowski. I have been in occupational safety and health for about 24 years. Mostly all with the Michigan OSHA program. I'm also Chair of the Occupational and Safety Health State Plan Association. I have been involved in the Michigan OSHA programs with various things, from enforcement through consultation. That's about it.

CHAIRMAN KRUL: Thank you. Welcome. Mike?

MR. HAYSLIP: Mike Hayslip, NESTI from Ohio. I started in construction as a surveyor, a carpenter, a laborer. I worked my way up. I went to engineering school, became a civil engineer, professional engineer. I worked in New York City for a large general contractor. I quit, left, went to law school and became an attorney. Don't hold that against me.

I stayed in safety and health. I was always out in the field in the trenches, construction work. I gravitated more later towards human resources, risk management, et cetera. I'm glad to be here.

CHAIRMAN KRUL: Thank you. Welcome. With us now is the Deputy Assistant Secretary for OSHA, Davis Lane. On behalf of the Assistant Secretary, I'm sure, welcome, Davis. Always good to have you here.

MR. LANE: Thank you, Mr. CHAIRPERSON. Nice to see you again, sir.

CHAIRMAN KRUL: Nice to see you.

MR. LANE: I, too, would like to add my welcome to the new members of ACCSH. We certainly appreciate your contributions. Some of you I have worked with for many years, and really do want you to know that we appreciate the balance and input that you have made to ACCSH. It has been a very valuable tool. It will be a rewarding opportunity for the new members, as many of the returning members will tell you. We often go to ACCSH to give us guidance and we really do appreciate the work that you do.

Assistant Secretary Henshaw is in travel status today, but will be here tomorrow. His comments -- well, I know he would want to just simply mention that the work of the agency is a priority of his in terms of affecting the triple bottom line, reducing injuries, illnesses, and loss of life in the workplace. We had some successes in many areas. Some of the areas are in the construction industry, and some of it falls in the Hispanic worker. That is a reflection of the input from ACCSH as well.

Also, he firmly believe that part of our successes are as a result of delivering a balanced program in terms of enforcement and effort. This year, we have looked at the final numbers, or early final numbers for fiscal year '04. We have been able to maintain a very credible enforcement program, Assistant Secretary Henshaw will talk a little bit more about.

Also, we have been able to have a positive impact in the workplace in terms of our new alliance programs and our partnerships. Certainly we in the Occupational Safety and Health Administration really understand and believe that it takes a balanced approach to have a positive impact on workplace safety and health, and certainly the recommendations from ACCSH play an important role.

It is nice to be back here to see some of the older faces. Mr. Chairman, I certainly appreciate your continued participation as well. On behalf of the Occupational Safety and Health Administration, I want to formally welcome the new members to ACCSH. That's my opening welcoming comments.

Mr. Chairman, if you have any other follow-up items, I'd be happy to address them at this time. Assistant Secretary Henshaw will be here for more program comments.

CHAIRMAN KRUL: Any questions for Davis? Anything? All right.

MR. STRUDWICK: I have one comment. I think OSHA did a fine, fine job when they separated and diversified with the Harwood Grants and focused a number of thousands of dollars on trenching and excavation. We appreciate that.

MR. LANE: Thank you.

MR. STRUDWICK: NUCA was a recipient. I know Broderick was a recipient. It's one thing to talk about it, but it is another thing to put that money to work to make a change and make a difference.

MR. LANE: We appreciate that. It reminded me, if I can add a few additional comments. We have had tremendous effort on the part of the agency in responding to the events in Florida over the last month and a half.

We have put tremendous resources into trying to meet with the contractors, the power company, the roofing contractors before they actually get out on sites to prevent fatalities and injuries associated with the power companies. It is a little bit of a challenge sometimes for some of the roofing contractors, unfortunately. We put a lot of our OSHA resources not only from OSHA Region 4, but from Region 6 as well.

On two of those hurricanes, for the first time, we actually got what are referred to as mission assignments from FEMA to do that type of work. We are real proud of that. Thank you again, Mr. Chairman.

CHAIRMAN KRUL: Thank you, Davis. Before you leave, let me ask you a question which has come up here a number of times. Greg is one of the contractors that struggles with the language barriers with Hispanic workers. I know OSHA has focused a lot of attention on this, the summit that you held down in Orlando.

Prior to that summit, there were statistics indicating that the numbers of fatalities in construction for Hispanic workers was declining. I believe John mentioned that the last time we had a meeting. Do you still see that trend continuing?

MR. LANE: Mr. Chairman, I just can't recall specifically. On the last BLS CFOI data, I think there is still a decline in overall non-English speaking workers. I'm not real sure about the specifics for Hispanics. Mr. Swanson, do you --

CHAIRMAN KRUL: It had spiked like two years ago. It had spiked to an extremely high percentage, especially in the state of Florida. Then you guys had made initiatives to work with, especially with Hispanic population. Then this last year, there was a significant decline in the percentages from that spike. It was based on obviously the efforts you guys made in addressing the problem. I was just wondering if that trend was continuing.

MR. SWANSON: I'm sorry, Mr. Chairman. I'm not ready to address that this morning either. But my belief is consistent with Mr. Lane's. I believe that the rate is down. I'm not sure about the absolute number.

And then also for the last year or so, there was a diversity within the Hispanic population between foreign-born and native-born Hispanic populations, with the native-born doing much better than the foreign-born. But we can give you an update on that in the next 24 hours.

MR. LANE: We can look at the latest CFOI data and let you know what that is, Mr. Chairman.

CHAIRMAN KRUL: And the only reason I bring it up is that that discussion has come up in the diversity workgroup quite a bit.

MR. LANE: Okay. And I believe it is in Assistant Secretary Henshaw's comments about the efforts with Hispanic workers.

CHAIRMAN KRUL: Thank you again, Davis.

MR. LANE: You are very welcome, Mr. Chairman. Nice to see you again, sir.

CHAIRMAN KRUL: Thank you. Jennifer, are you back there? Jennifer Silk? Jennifer is the Deputy Director of the Directorate of Standards and Guidance. She will be giving us a Standards update, as it appears, with members of her staff, noise and hearing conservation, silica, hexavalent chromium, electric power transmission, Subpart S, controlled negative fit test, and rollover the protection.

MS. SILK: Good morning.

CHAIRMAN KRUL: Jennifer, welcome.

MS. SILK: Thank you.

CHAIRMAN KRUL: If you would for the court reporter, identify yourself and have your folks identify themselves.

MS. SILK: Sure.

STANDARDS AND GUIDANCE OVERVIEW

MS. SILK: I'm Jennifer Silk, Deputy Director of the Directorate of Standards and Guidance.

MS. EDENS: I'm Mandy Edens with DSG.

MR. SEYMOUR: I'm Mike Seymour, also with DSG.

CHAIRMAN KRUL: Thank you.

MS. SILK: Thank you. And thank you for having us this morning to give you an update on what we're doing in Standards and Guidance. Mr. Witt was supposed to be here. He expresses his regrets, but he'll probably be here the next time.

What I'd like to do is go through very briefly some of these issues where there is really not very much to say, and then Mandy is the Director of the office responsible for chromium, and she'll address that in more detail. Mike is the Director of the office responsible for hearing conservation and construction, so he will address that.

Electric power transmission, which is what we call subpart B in construction is in the final stages of review within OSHA. So the notice of proposed rulemaking has been developed, it has gone through the SBREFA process, having input regarding its impact on small businesses. We are now in the final stages of OSHA review before submitting it to the Department for review.

Crystalline silica. We're in the process of doing a risk assessment and getting a peer review of the risk assessment done. So I believe you've had presentations on Silica before. It too has gone through the SBREFA process, but now we are going through the process that we have to do to get our risk assessments peer reviewed. That is a new process that is being required by OMB. It is actually something that we have always done in OSHA for major rules. So it has been a part of our process for quite a long time.

Subpart S, which is electrical safety, we did issue an OSHA proposed rulemaking. We only got one request for a hearing, and that request has now been withdrawn. So that means that we will be developing a final rule now for Subpart S based on the record that was submitted in terms of written comments.

Assigned protection factors. We also have a proposed rule that came out last year. We had a hearing earlier this year, and the record is now closed, and we're in the process of developing a final rule on assigned protection factors. So that will be out sometime within the next few months. Hopefully we'll be getting into OMB for review.

Controlled negative fit test was a small rule that did to add a fit testing protocol to the respirator standard. That was finalized several months ago. If you'd like to see it, it is up on our webpage.

ROPS is something, ROPS direct final rule, which I understand you'll be talking about ROPS in more detail later. That is something that we're doing to correct something that we did that was incorrect some years ago. It is in the process of being reviewed by our solicitor's office now. So hopefully that will also be out within the next few months.

So there are quite a few things within Standards and Guidance that are coming close to being done and being available to the public, I'd say, over the next six-month period. The two of these that are of more detail and more critical interest at the moment are chromium and noise hearing conservation in construction.

So Mandy, if you'd like to talk about the chromium proposal that we just issued recently.

MS. EDENS: I believe that in your packages, you were given the press release on the proposal. So what I was going to do today was just to briefly go over the attached fact sheet which gives a summary of the major provisions.

The proposal was published a couple of weeks ago now, on October 4th, we met our court deadline on the day. Basically we have three proposals in one proposal. There are three different standards. One for general industry, one for construction, and one for maritime. However, there is only one permissible exposure limit that is being proposed. That is going from 52, the current PEL, down to 1 microgram per cubic meter as an 8-hour time-weighted average. That will be for all industries, and for all hexavalent chromium compounds.

In addition to the PEL, as you can see in the chart, there are a number of different ancillary provisions, and they vary a bit depending on whether you are in general industry construction or maritime. The provisions are identical for maritime or shipyards and construction, and they are slightly different and a little more burdensome for general industry.

What I'd like to do is kind of note the differences for construction, since this is ACCSH, and how construction differs from general industries that there is an exclusion of Portland Cement under the scope of the standard.

Secondly, there are no requirements for exposure monitoring, regulated areas, or housekeeping. The main reason for this is that we thought that based on the information we had at the time, that some of these types of provisions would be a little problematic in the construction industry because of the changing nature of construction sites.

With regards to exposure monitoring, although there is not a specific schedule that's required, OSHA does anticipate that exposure monitoring will be done to some extent to people who need to know whether or not they are in compliance with the PEL. So we have taken costs for exposure monitoring in certain situations.

Medical surveillance is a little bit different, in that it is not triggered by an action level or the PEL, but rather it is triggered by signs and symptoms of a chromium-related health effect, or it is either triggered by an emergency, which we've defined as an uncontrolled release of chromium.

Because there aren't any regulated areas, there are not any warning sign requirements. Because there aren't any exposure monitoring requirements, there is no record keeping requirement for exposure records. However, if exposure monitoring is being done, of course, there are the obligations of 1910.1020 to be met.

So that kind of in a nutshell boils down the major provisions that I wanted to bring to your attention. I guess I would take questions.

MR. SCHNEIDER: In the proposal you talk about all the, sort of, analysis of the dermal effects. Then when it comes to the Portland Cement exclusion, you basically say well, we're going to put out guidance. Normally when OSHA puts out a rule, they look at regulatory alternatives.

What kind of analysis did you do to show that the guidance would have been equally effective to putting out a rule?

MS. EDENS: Well, I think that the larger reason for excluding Portland Cement was not because we thought by enlarge guidance would be the most effective way. There were already two existing standards that we felt might address the dermal issue with regards to Portland Cement.

We already have a PPE standard, and we also have some hygiene standards that apply in construction. So the question is what added benefit would the chromium rule per se, because some of the information suggested that a lot of the dermal effects are coming not only from chromium, but a lot of it is from the natural abrasive nature of cement itself.

So what we proposed to do is rather than trying to put on a chromium standard to address the problem, we'd have our existing PPE standard, and other existing standards to address that problem. On top of that what we would do is add maybe some more specific guidance to help people understand how to best use the PPE standard of personal protective equipment in cement use situations.

MR. SCHNEIDER: This committee has gone on record as talking about the inadequacy of the hygiene standard, for example. Before I was on the committee, thanks to Jane and others who were on the committee back then, proposed revisions to the sanitation standard in construction because it was inadequate.

So do you look at the inadequacy of the current standards as they apply to construction with regard to PPE and sanitation?

MS. EDENS: Well, that's one of the issues that were brought up as part of the issue section. We decided to go this way for the proposal, and as a part of the issue section, we took the work of the subgroup that had formed to look at the cement issue after the end of the last ACCSH meeting where I think you had put together a number of ways that we could go that would be not the full set of chromium kind of provisions that might naturally apply in a variety of other situations, but kind of a pared down version.

We summarized that type of proposal in the issue section in trying to get some comments on if that would be a better way to go in terms of support, rather than exclusion totally.

MR. SCHNEIDER: Well, we are looking forward to commenting.

CHAIRMAN KRUL: Anyone else?

(No response.)

MR. SEYMOUR: Good morning. I'm Mike Seymour, I'm the Director of the Office of Physical Hazards in DSG. I'm pleased to be here this morning to tell you about our progress in addressing hearing loss in the construction industry.

Let me talk a little bit about what the project status is. As you know, and as we've reported to your committee before, OSHA issued an advanced notice of proposed rulemaking in 2002. We received 45 comments.

Just for background sake, let me summarize the major points that we learned out of that ANPR experience. First, we learned that the use of hearing protection in the construction industry is not common. Second, we heard that hearing loss occurs in construction at a high rate. We heard that audiometric testing is controversial, and commentors debated in the record that we developed regarding its purpose and cost-effective implementation of audiometric testing in construction. Finally, that exposure monitoring can be difficult not only to implement, but also to interpret for construction.

Since we reported to you last, we have completed contract work to generate an industry profile, and an exposure profile for the construction industry with respect to noise exposures. In addition, we have been working with the National Homebuilders Association and CENTEX Construction Company to do site visits to gather information on hearing conservation programs and monitoring programs.

We have been doing two to five day site visits, actually gathering information, exposure information ourselves to help us understand the conditions in construction sites.

The biggest part of our effort in the last six months or so to a year is stakeholder meetings. We have held stakeholder meetings in Chicago and here in the Washington area. Notes for the Chicago meeting are on our website, and we're in the process right now of completing the notes for the Washington stakeholder meeting, which we held in late July.

The major points that we heard from the stakeholders included the following. Hearing conservation programs are difficult in construction because of the mobility of the workforce and the high worker turnover, and the variability of job sites.

Again, we heard that hearing conservation programs in construction are rare, at least full programs are rare. We heard that the impact on small business was a major concern, and that OSHA needed to be sensitive to that concern which we typically tend to be through our SBREFA process.

We heard that advances in technology may help implement hearing conservation, but are not widely used. We heard loud and clear from virtually all of the stakeholders that in your industry, keeping it simple is an absolute value. Simple requirements and simple concepts are what work in the construction industry.

In the Washington stakeholder meeting, we also provided an opportunity for the stakeholders to present data that they had been able to collect. We heard from a number of people. I believe it was a very positive experience. Some of the key points we heard is that hearing loss in construction is very common.

For example, in one study of 1,775 construction workers, this work was done by Rick Knightsville out at the University of Washington, 11 percent of the workers in the 18 to 44 years of age range had reportable hearing loss, which is at least in my mind, a fairly astounding number.

Again, Rick Knightsville's work showed that 22 percent of the work shifts exceeded 85 DBA, and that 9 percent exceeded 90 DBA. It showed that the use of hearing protection was only about 33 percent in comparison to when it should have been used to when it was actually used. The actual use of hearing protection is quite low.

So our plans for the project were we are still at the beginnings of the project. But our plans for the project are to continue information collection through site visits. We are working to identify companies that have effective programs, and to learn from those programs. We want to learn what works and what doesn't work. We want to learn how these programs can be implemented, and we want to learn how effective they are.

We also want to learn a little bit about the obstacles to implementing these programs. We believe that there are some obstacles in terms of the turnover and mobility of the workers, and the variability of the work site that will affect how hearing conservation is implemented in the construction industry.

So with that, I'd be happy to take your questions, if any.

CHAIRMAN KRUL: Steven?

MR. WILTSHIRE: What was that percentage on the 18 to 44 year old's loss?

MR. SEYMOUR: It was 11 percent.

CHAIRMAN KRUL: Greg, did you have anything?

MR. STRUDWICK: Yes. Well, I just wanted to comment. It would be helpful and beneficial if you could attach the decibel levels of the different types of exposures, i.e. a jackhammer, the machines that are out there. We have made significant improvement in the noise levels of heavy equipment at this point. When I started 34 years ago, I was probably one of those statistics that would go, what? Because the decibel level of 471 Jimmy diesel engine was probably 125. The louder, the better when I was 20 years old.

So we would appreciate some type of a resource where we could look at it and show someone in simple terms how they are hurting their hearing at that age, and they would believe it.

MR. SEYMOUR: Okay. Well, one of the issues that we addressed in the latter stakeholder meeting, the one here in Washington, had to do with task-based exposures. I think there may be some efficiencies to be had in understanding which exposure, which activities and job categories have high exposures so that we can assume that these are people that need to be addressed in the standards.

So we are very interested in gathering task-based and activity-based exposure measurements so that we can factor that into our regulatory thinking when we get to that phase.

MR. STRUDWICK: The other issue is backup alarms. Those decibel levels that may not be adequate at this point if someone is using a hearing device or hearing protection device.

MR. SEYMOUR: We heard a lot about that at the stakeholder meetings in Chicago as well.

MR. SCHNEIDER: Thanks for coming by. I appreciate your input. This is something we are very interested in and very concerned about. I guess the question to me is you had a number of stakeholder meetings and got some useful feedback. But what is the time table for putting out an NPR?

I know you want to gather as much information before you put out an NPR, but isn't that the purpose of the public comments on the NPR also to gather information and see what kind of data you can collect then?

My understanding four years ago there was an NPR that had been prepared and was ready to be published, and it wasn't. But how much more input do you need in order to put together an NPR, and what is the time table?

MR. SEYMOUR: We haven't established a time table. As a matter of fact, the Assistant Secretary hasn't made a final decision to proceed yet. It is on the regulatory agenda, which I expect to be out in the next month or two.

MS. SILK: Yeah, the next regulatory agenda should be coming out soon. Mike is right. Actually, your statement about the comments providing information, that's true and it isn't to a certain extent.

I mean, we have certain burdens that we have to meet in order to get a proposal out. Those include significant analyses and the economic burden, the technical feasibility, and those types of things. So there are a number of issues that we're dealing with in this area that we would like to make sure that we have all of our ducks in order before we get to the point of doing a notice of proposed rulemaking.

The comments basically tell us whether we found the right place to go, or whether there is data missing that we missed. We usually try to make sure that we're pretty sure of where we are and where we should be when we get to the proposal stage in terms of data.

I wouldn't consider the proposal to be a data gathering exercise. It would be refining what we have, and making sure we're right at that point. The data gathering goes on before that. That is where we are. This is a complicated issue, construction in particular because of the types of workplaces that you're dealing with, and the types of noise exposure. So we still are very much in a data gathering phase in terms of looking at feasibility.

CHAIRMAN KRUL: Mike, I have a question on. You said some of the comments that came in the ANPR was that audiometric testing was controversial. Does that mean that there is a more scientific or more accurate way to measure hearing loss?

MR. SEYMOUR: No, that's not what I meant. What I'm suggesting there is that there is a lot of controversy with respect to how it gets implemented, or how it can be implemented in an environment such as a construction environment where people come and go, and there are day laborers, and those kinds of concerns about people that are in the business on an on and off basis throughout the year, and how you would implement audiometric testing for that.

MR. BRODERICK: Tom Broderick. My recollection from the Chicago meeting was the real concern was the number of jobs that a construction employee might have in any given year, and the portability of records. That is a real concern for an industrial constructor who has workers that basically start as apprentices and retire, working at the same plant, they could probably fall right in with plant hearing conservation program. But with the people being hired on through a hiring hall, especially some of those trades whose duration of the project is fairly short lived where there might be high dose noise exposure, that is a concern.

Is each contractor going to have to send this person for a hearing exam, where that person may have their hearing checked by a --

CHAIRMAN KRUL: Jennifer, on the assigned protection factor -- we just saw a presentation by the NIOSH Pittsburgh lab regarding total inward leakage and saying that one size fits all. And respirators just can't be one size fits all, because there are so many different factors, the makeup of a person's facial structures, and then wear and tear, and the respirator eventually affects the inward leakage. Are the APRs taking any of that into account?

MS. SILK: Well, we're taking into account everything that is in the record so far. We are certainly keenly aware of what NIOSH is doing, and we are working with NIOSH in those areas. But the assigned protection factor rule will go forward at this point.

If there is new data at some point that indicates that there is a problem based on new data, we would have to reconsider that. But at this point, I think we're ready to go on assigned protection factors based on the record.

CHAIRMAN KRUL: Michael?

MR. HAYSLIP: Good morning, Mike. Have you guys begun to focus on the source itself? With regards to hearing, actually, with regards to improvement of the source, the equipment itself, or the procedures used, rather than worry about the person themself, worry about the source that is emitting the noise? Have you made any focus on that?

MR. SEYMOUR: We've done some information collection in that area. We certainly have done some internet searches on the manufacturers of the typical equipment, particularly the handheld devices of circular saws and those kinds of things to find out what is the range of noise emissions. There is quite a bit of information out there.

As a matter of fact, I had a summer intern working on this pretty much all summer, of gathering the information of what are the public noise emission rates for the tools that are sold in this country, and compared them to some of the tools that are sold overseas to see what some of those differences are.

MR. HAYSLIP: What were some of the conclusions, if any, of that study?

MR. SEYMOUR: I'm not sure I'd go so far as to call it a study. Just a look at the data seems to indicate that there are some choices to be made with respect to noise levels that are omitted from those kinds of tools. Certainly manufacturers are A, interested, and B, gathering information and publishing that information for the consumer's use, which I think is an encouraging sign.

MR. HAYSLIP: Thank you.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Tom, I should mention that we did develop last month a new website on basically a best practice guide for controlling noise on construction sites. So if you go to our website, you can look at it.

CHAIRMAN KRUL: Why don't you give the website?

MR. SCHNEIDER: It is www.lhsfna.org.

MR. BRODERICK: I was also wanting Scott maybe to address the noise partnership that you have been working on and whether or not you've been able to draw manufacturing into that, kind of similar to the successful NIOSH asphalt fume partnership, where they basically cured the problem.

MR. SCHNEIDER: Okay. I will just mention, we did develop a partnership with manufacturers and contractors and unions and insurance folks and academics. There are folks like NIOSH and OSHA that try and look at how we can promote noise controls in the construction industry.

We had some success, but it hasn't cured the problem. We have a long way to go. But we are working on it. There is information on our website about it.

CHAIRMAN KRUL: Anyone else?

MS. ESTILL: I have a question about silica. I haven't sat on the board all that long. You said you were doing an assessment. Does that mean it has already been through this committee?

MS. SILK: It has been through this committee more than once. We're not at the stage of actually doing a proposal. We went to SBREFA earlier this year, and have been through that process. At the time that it goes to SBREFA, there is a draft proposal that becomes public. But until we are actually ready to propose a standard, we don't actually release the actual proposal.

MS. ESTILL: Do you have a time frame for that?

MS. SILK: Right now the reg agenda commitment is the peer review. The risk assessment is scheduled to be finished by February of next year.

CHAIRMAN KRUL: Bruce?

MR. SWANSON: This is a great segue. The decision here, I realize we have some new members on the committee. This is perhaps an unnecessary comment, but I'm going to err on the side of caution.

There is a regulatory requirement that OSHA come to this committee for instruction standards prior to going forward. That will be a formal consultation. You will know when we are here to formally consult with this committee on our standard, and listen to what you have to say.

For the new members, OSHA has already been here with the hex standard. Beyond that formal consultation requirement, however, we feel that this 15 member committee is a great collection of windows for us to the construction industry. You are one of the vehicles that we use to keep the construction industry advised as to what we're doing.

So even after we've been here with a standard and had formal consultation, we will attempt to keep you advised as to the progress of that standard. Also before we come in and have a formal consultation, which we will announce to you that is our intent and that is what we're here to do, we will talk to you about standards that we're working on.

We are not looking for formal feedback. This is just an FYI to the construction industry in keeping you people informed and to be knowledgeable spokespersons for OSHA. You are going to hear a mix of both types of those here in the next day and a half. You are not going to hear us ask for formal consultation on anything. When we do that, you'll get the announcement up front, that that is what we are here to do on this day with this presentation. That's not what you just heard. Thank you.

MS. SILK: Right. When that happens, you get the actual reg text as well, so it is not just an update on what we're doing.

CHAIRMAN KRUL: Jennifer, Mandy, and Mike thank you. What we're going to do I think is take a break to let them set up. It is a quarter to ten, if we can be back in here by 10:00.

(Whereupon, there was a brief break.)

CHAIRMAN KRUL: All right. With us to give us a presentation on enhance enforcement in construction is the former Chairperson of this esteemed committee, and now with the Directorate of Construction, Stew Burkhammer. Stew, welcome.

MR. BURKHAMMER: Thank you, Mr. Chairman.

OVERVIEW OF ENHANCED ENFORCEMENT IN CONSTRUCTION

MR. BURKHAMMER: Good morning, everybody. One of the things that you all asked for was an update on enhanced enforcement in construction. I'm here today to share that information with you.

On March 12, 2003, the Assistant Secretary in a memorandum to the regional administrators introduced OSHA's new enhanced enforcement policy for employers who are indifferent to their obligations under the OSHA Act. Basically it has two parts, two major parts.

Employees who expose workers to serious safety and health hazards, and also employers who continue to defy worker safety and health regulations. We do still have some of those in the United States today, unfortunately.

(A showing of slides.)

MR. BURKHAMMER: The focus basically of this program is what is on the slide there. Employers that have been subject to high gravity citation cases, high gravity wilful, multiple high gravity serious, high gravity repeats, failure to obey, or serious wilful or repeat violations related to a fatality.

At that time when one of those events occur, the area office and the regional administrator sit down and they discuss whether this is an employer who might be a target for enhanced enforcement. Enhanced enforcement includes, as you see on the right there, follow-up inspections, targeted inspections, and it may include federal court enforcement under Section 11B of the Act.

(A change of slides.)

MR. BURKHAMMER: As you can see from the next slide, the numbers that we have. These are through October 5th numbers. Of the 300 EEP cases, now that's 300 total. That includes general industry and the other aspects of OSHA, 176 have been in construction. Of the 300 EEP cases, 247 have been fatalities, or involved fatalities. Of the 247 cases that involve fatalities, 135 of those are a result of the construction industry.

(A change of slides.)

MR. BURKHAMMER: From this, the next slide kind of shows you the follow-ups. We have had 45 follow-up inspections in construction. One of those sites has been a site-specific targeting where we went back and targeted that employer and took a look at some of his sites. Seven construction-related inspections where they go out and specifically inspect one of those employers that you saw in the first count.

Part of this is when OSHA has a settlement, or when the area office and the regional office sit down and discuss settlement with one of these type employers, OSHA is requiring some specific things from them that not only shows OSHA that the employers are serious about fixing their problems and becoming a better employer, but also to help the employer improve their program at the same time.

So some examples of that are aside from paying a specific amount of the penalty, some of the things that they can negotiate back and forth between the employer and OSHA are hiring a consultant to develop a process to change the culture, to change the company's safety and health culture. Make sure they apply the corporate agreement company-wide.

A lot of times companies have different divisions, sections, or parts, business units, for example. One business unit may be the target of enhanced enforcement, but we want to make sure the entire company gets the message. So part of the negotiation may be that the agreement will be corporate-wide, and not just specific to that division or business unit.

In construction, one of the things that we're talking to some of these employers about, and one in particular comes to mind, an employer who has had three significant cases, and is certainly on this list. We want a list of their job sites so that we can go and find out where they're working, and show up and inspect their sites and make sure that the things that they've agreed to in their settlement agreement are being implemented in on all their projects, not just the one or two that were a part of the targeting inspection or the enhanced enforcement inspection.

Require the employer to submit OSHA's logs of injuries and illnesses on a quarterly basis instead of at the year end. Also allow OSHA on their sites to conduct inspections at any time without any stipulations. Sometimes OSHA goes out and the employer for whatever reason may require a warrant or something like that as part of the negotiation. That is eliminated. The company agrees to allow OSHA on their sites at any time to inspect their sites.

So those are some of the examples of what OSHA talks to the employer about during a settlement agreement.

(A change of slides.)

MR. BURKHAMMER: In the end, to make this tool effective, the regional administrators and the area directors are drafting citations, enhanced enforcement citations, in language that makes sure that it is completely spelled out and they are exactly what the employer is to do. Specific, understandable language. A, B, C, D, E, yes or no. You do this, you do this, you do this, you do this. When OSHA's compliance auditors come out to the site, they have a copy of that, and they look at that list. Have you done this, this, this, that you agreed to do? That is part of the follow-up process as you saw by the numbers there.

I'd be happy to hopefully answer any questions you have.

CHAIRMAN KRUL: Thank you, Stew. Scott?

MR. BEAUREGARD: You said there were 176 cases in construction, but only 45 follow ups. Why weren't there more follow ups? They just haven't had the follow ups yet?

MR. BURKHAMMER: In some cases they haven't had the follow up. In some cases, the job has been completed, the company went out of business. I mean, there are various reasons why. But some they just haven't got around to yet to do the follow up.

CHAIRMAN KRUL: Greg?

MR. STRUDWICK: Does the construction director overseeing the enforced enhancement on particular contractors or employers insist that area director or that region as far as what the ultimate final disposition of the case is?

MR. BURKHAMMER: The overall responsibility for the EEP policy is Rich Fairfax's shop, Director of Enforcement Programs. Bruce's shop has a large piece of that.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: On the follow ups, what has been the result of the follow ups? Have you gone back and found that a lot of violations still existed? Or were these companies straightened out by then? Do you have any information on that?

MR. BURKHAMMER: The little information we do have on it, the ones that they have done, we have not had any follow-up citations or additional significant or egregious cases from those follow-up inspections.

MR. SCHNEIDER: And how long do they stay under this enhanced enforcement program? How long do they have to continue to report all their sites and their OSHA laws, et cetera? Is that for like a three-year period? Or how long does that go on?

MR. BURKHAMMER: That's a good question.

MR. SWANSON: I think there is some confusion here. It is not the enhanced enforcement program that requires anybody to supply precise information to OSHA. It is only if that were a piece of a negotiated settlement stipulation. The employer as part of whatever has been negotiated with OSHA, makes certain commitments to do something. But without that we can't force you to supply us precise information.

MR. SCHNEIDER: In those settlement agreements, how long do they have to do that? In general?

MR. BURKHAMMER: The duration is for the length of the settlement agreement. Whatever time period the settlement agreement is. A month, six months, a year. Whatever they negotiate in their settlement agreement.

MR. SWANSON: And apparently -- neither one of us are able to give you any actual average data, go back and look at the last 75 settlement agreements and examine them or whatever, and typically what has come out -- I don't know. That is all done region, by region, by region.

MR. STRUDWICK: I have been involved in a couple of those, and they typically last a year. And the follow-ups have been great. They have worked. And they are usually out there two or three times, and the follow-ups are -- does the employer know that they are part of enhanced enforcement procedure? Are there things that they can go back and are made aware of before they spend a gazillion dollars on an attorney that goes back and finds out that they are a target of an enforced enhancement procedure.

MR. SWANSON: I don't know if there is anything wrong with giving a gazillion dollars to attorneys. But that aside, when a decision is made to put someone on enhanced enforcement program, there is, correct me here if I misspeak, Stew, but there is no requirements in the directive that the employer be notified that he is on that program. But if the world works right, he will know it soon enough.

MR. SCHNEIDER: Is that on the OSHA website?

MR. SWANSON: No, it is not on the OSHA website.

MR. BURKHAMMER: But what the employer is notified of, Greg, is if they have a high gravity citation case, a letter is sent to the employer's CEO.

CHAIRMAN KRUL: Stew, what is the typical reaction? Is there still that feeling that OSHA is intruding into their workplace, even though they have a dismal safety record?

MR. BURKHAMMER: The only way I can answer that is we had a case, a particular case that involved an employer who just didn't get it, even after the CEO got the letter. He was very indigent, and very lippy to the OSHA folks when they came out to his site, and basically just didn't care. He was automatically put on this program. After some encouragement, he cares now. We are here to help you. You know, what else can I say?

MR. SCHNEIDER: I understand after a settlement agreement, there is a certain time period that that settlement agreement ends. But how long does a company stay on the enhanced enforcement target list is what I'm asking?

MR. BURKHAMMER: Once the settlement agreement ends, he comes off.

MR. STRUDWICK: Well, really isn't that a time period of say three years in a repeat situation? Isn't he automatically under the gun for that next three years?

MR. BURKHAMMER: Not necessarily. A lot of it is a case-by-case basis by the RA.

MR. STRUDWICK: Just from a contractor's standpoint, I can tell you that animosity is created when there is a lack of communication. I think if they are going to be put on that program, they ought to be initially told that right up front, and then let them handle it the way that they need to handle it.

If they're going to hire four or five attorneys and spend a gazillion dollars, let them do it. But put them under the gun and say, you know what? There is a responsibility here for you to treat your employees like partners and like what has made you as successful as you are. We realize that maybe that's not happening, and we feel like that we're going to make sure that they do understand our position. That means we're going to enhance the enforcement as far as you are concerned.

I have had contractors come to me, only because they know who I talk to and say, what am I going to do? I'll just shut down, create a new company, and then they won't come after me. I don't think you want them to do that, because they've taken a lot of time and money and reputation and put in the 35 years in the construction business, and they've having somebody threaten them to the point where their kids are going to be responsible for the enhanced enforcement years down the road.

I don't want them to feel that way. I want them to say okay, it is time to suck it up. If you do have a problem, let's get out there and correct the problem, and go back and show how we have improved what we're trying to do from the beginning and not at the middle point, or at the point of being in front of an administrative law judge.

I'd like to eliminate that part of it if possible and say hey, you know, what there is a problem. There's an accountability problem in the field and we're going to take care of it, we're going to set our disciplinary action plan in place and go for it. We're going to eliminate a lot of this rhetoric that goes along with solicitor, attorney, and nothing gets solved in there, other than the fact that at some point, the contractor has spent so much money that he knows it would be cheaper just to get it done.

MR. WILTSHIRE: Stew, real quick. When was the program implemented, and what does the future look like? It sounds like a great program to me.

MR. BURKHAMMER: It was officially implemented when the Assistant Secretary sent a letter to the Regional Administrators on March 12th of 2003.

MR. WILTSHIRE: And the future looks good?

MR. BURKHAMMER: I'm not a futuristic person, so I can't answer that.

CHAIRMAN KRUL: Dan Murphy?

MR. MURPHY: Dan Murphy. I still have a question. If a person ends up on the enhanced enforcement program, is one of the solutions that hopefully in the future would be presented to them a challenge administrator program? We have the challenge program now in place, and this is a potential solution for some of your problems. Is that ever communicated to the group that gets in the enhanced enforcement program?

MR. BURKHAMMER: We have not done that yet. That is a great idea. We are looking for ways to expand OSHA challenge, and that may be one way to do it.

MR. MURPHY: Thank you.

CHAIRMAN KRUL: Stew, as always thank you.

MR. BURKHAMMER: Thank you.

CHAIRMAN KRUL: Good presentation. We appreciate it. Next on the agenda are our brothers from the building construction trades safety and health committee and Safety and Health Director for the International Union of Operating Engineers, Emmett Russell. Emmett, welcome.

MR. RUSSELL: Thank you, and good morning.

ROPS PRESENTATION

MR. RUSSELL: This is a joint presentation between myself on behalf of the operating engineers, and also we have Nick. Nick, would you like to introduce yourself?

MR. YAKSICH: Yes, good morning. I'm Nick Yaksich with the Association of Equipment Manufacturers, representing construction equipment manufacturers.

MR. RUSSELL: Thank you. What we'd like to present is in your package that we passed out, the Center to Protect Workers' Rights basically did a study on contact or overturns and rollover protective structures. You'll see the book here in your package.

As a result of that study, I think it brought to light the fact that the OSHA regulation has somewhat of a lapse, in it has never addressed rollover protective structures on rollers.

(A showing of slides.)

MR. RUSSELL: Also in your package you'll find OSHA standard 1926.1000. The bottom line is one of the standards basically deals with equipment safety, seatbelts, and the like. The other standard actually deals with the fact that we have rollover protective structures mandated on other equipment, but is not dealt with as it relates to compactors and skid-steer loaders.

Also you have a copy of the Army Corps of Engineers regulation on ROPS on compactors. You have a copy of the California Code of Regulations, and also you have two letters of interpretations. The letters of interpretations more or less direct itself it to the fact that compliance officers can actually cite where you have an accident where there is no rollover protective structures or whatever. They can actually cite that under the general duty clause.

So the bottom line is I think the sooner we can move towards having a standard, the sooner we can have clear guidance as to how to deal with this issue. I think dealing with it in a general duty clause is better than not dealing with it at all. But again, I think that moving forward on this would be an advantage to the industry.

The last item is you do have a copy of the BNA article on the study from CPWR and Mel Myers.

(A change of slides.)

MR. RUSSELL: Compaction. Basically a brief definition, which is sealing and smoothing asphalt surfaces, packing road surfaces, increasing soil density, gravel density, and unstable embankments and backfills, and also packing landfills.

This gives a brief background on the whole ROPS issue as it relates to compactors. I'm not going to get too heavy into this, because each of you actually have a copy of this whole thing in your folder.

(A change of slides.)

MR. RUSSELL: Definitions. Throughout the presentation, you'll see a number of different types of rollers. These are some of the basic types of rollers in the industry today, which is a smooth drummed roller, the padded foot roller, and the rubber-tired or pneumatic roller. All of the compactors you see in the picture actually have some type of a ROPS on it.

(A change of slides.)

MR. RUSSELL: Okay. Here is the problem. By the way, in this picture you'll actually see a compactor overturned where it was either being loaded or unloaded, and this is quite often if you look at the design of the ramps on the flatbed, you'll actually see that the ramps are not sufficient to accommodate the compactor.

(A change of slides.)

MR. RUSSELL: Here you'll see the terrain, or at least the setting on the land is somewhat not flat. As a result of that, you'll see that the compactor actually turned over. Now, the most significant thing about this picture is it was found that where the compactor did not have the ROPS that would limit the number of overturns, in some cases you actually saw a 270-degree overturn with no ROPS. Where you had a ROPS, the overturn was basically limited to 90 degrees.

So basically an operator trying to jump or trying to protect themselves would actually not have any way of getting out of the way of the machine.

(A change of slides.)

MR. RUSSELL: ROPS effectiveness. Basically from 1986 to 2002, 58 overturn cases were analyzed involving compactor related accidents. These cases involved 51 fatalities.

In 2003, there were two compactor overroll fatalities. The early part of 2004, there was one fatal compactor overroll. Twenty-six compactors without ROPS experience overturns that average more than two full rotations, 782 degrees.

Every ROPS-equipped compactor was restricted to a 90-degree overturn, except one tricycle type compactor. One non-ROPS cab crushed, killing the operator. Again, this is just a summation of the seriousness of the lack of ROPS on compactors.

(A change of slides.)

MR. RUSSELL: ROPS is an anti-roll bar. Here you have two examples where you have a side overturn, and the ROPS actually stopped the machine from crushing the operator. It stopped the machine from going beyond 90 degrees.

In the other case you have where you had a runaway roller or roller or compactor, and again, the ROPS provided protection for the operator.

(A change of slides.)

MR. RUSSELL: Some possible ROPS design issues. Only one ROPS equipped compactor overturned beyond 90 degrees. In a couple of cases, the canopy struck the operator.

(A change of slides.)

MR. RUSSELL: Again, I'm just giving an overview of the CPWR study. This study examined government investigation reports of work-related deaths and injuries from 1986 through 2002. Operators and drivers have been killed or seriously injured as the result of a lack of ROPS and seatbelts on compactors.

Compactors with ROPS are found to restrict overturns to 90 degrees, where as compactors without ROPS were found to average more than two revolutions per event. Now, the important thing here is that ROPS and seatbelts have to work together. You can't have one without the other.

(A change of slides.)

MR. RUSSELL: Of the 58 overturns analyzed in detail, nearly half involve the smooth-drum type compactor, as compared with the steel-drum type, and the pad-foot type. The highest overturn hazard locations were along roadway or embankment edges. The next most hazardous situation was runaway machines, typically down slopes.

(A change of slides.)

MR. RUSSELL: Compacting of soil appears to have been more hazardous than other compacting operations, especially for the smooth-drum and pad-foot compactors. Soil edges were a hazard, as were soft soil pockets that can drop under the weight of a unit.

The stability of a compactor was affected by maintaining vibration while stationary, turning away from the slope with articulated steering, or using water as ballast, because the water can slosh from side to side, therefore causing the machine to do the same.

(A change of slides.)

MR. RUSSELL: Loading or unloading compactors on trailers posed potential overturn hazards. The hazards were caused by skidding on inclines, by smooth-drum compactors, using wood blocks or planks as ramps, or loading a narrow unit that lacks the width to reach both loading ramps.

Failure to use a seatbelt when a compactor had ROPS was a hazard. Some seatbelts were inoperable, and some had not been installed on new compactors. However, using a seatbelt when there was no ROPS resulted in death also.

(A change of slides.)

MR. RUSSELL: The type of environment. Edge work was the most significant risk factor for overturns. Slope at the edge ranged from 23 to 45 degrees. Runaways were the next most significant risk. (A change of slides.)

MR. RUSSELL: Conclusions. The machine factors. ROPS restricting overturns to 90 degrees, whereas non-ROPS compactors average more than two revolutions per event. Rubber-tired compactors had the lowest percentage of ROPS, followed by steel-drum, and then pad-foot compactors.

The canopy was cited whenever the part of the ROPS assembly that struck the operator during overturn was reported. Loading and unloading compactors to and from trailers posed overturn hazards.

(A change of slides.)

MR. RUSSELL: The compactor stability was affected by maintaining vibration while stationary, turning away from a slope with articulated steering, and by water as a ballast in the water tanks.

(A change of slides.)

MR. RUSSELL: Environmental factors. Roadway or embankment edges presented the highest overturn hazard locations. The next most hazardous condition was runaway machines.

(A change of slides.)

MR. RUSSELL: Human factors. Workers died or were seriously injured for the lack of ROPS and seatbelts on compactors. False security of compactor operators is a factor when they previously operated more stable equipment like dozers or loaders.

Seatbelt non-use in the presence of a ROPS was a predominant hazard. Again, let me stop here. By saying that you can have the ROPS, but if you don't have something to hold the operator inside the ROPS cage, again, when the machine starts to overturn, the operator can be thrown out.

In a lot of cases, the operator is actually crushed by the ROPS that should be protecting them. When again, they don't have the seatbelt fastened that would actually hold them in the ROPS cage.

Conversely, wearing a seatbelt without a ROPS was found to be hazardous. What they are meaning is that it was thought that the best opportunity for an operator to save themselves when operating a machine without a ROPS is actually an attempt to jump clear of the machine. I know that's tacky even by saying it.

The fact is if you did not have a ROPS and the operator was actually tied in the machine with a seatbelt, the machine started to overturn. In most cases, there was not enough time to unbuckle the seatbelt and try to jump clear of the machine.

(A change of slides.)

MR. RUSSELL: Recommendations. Again, these are recommendations strictly from the study. I have to say the equipment manufacturers have not necessarily endorsed all of these recommendations. Again, we're going to go through them. Nick?

MR. YAKSICH: My comment on the recommendations is we've brought this issue forward for a number of years. We appreciate the attention that you have given it. We want to get the stakeholders around the table to figure out what is the best as we move forward to improve the safety.

I think by making it a priority, we also can do a corresponding education within the industry as far as the ROPS and the seatbelts used together. So there would be a whole effort in conjunction with the operating engineers and other stakeholders to educate workers.

MR. RUSSELL: Okay. Thank you. OSHA should promulgate a standard that requires ROPS and seatbelts on all compactors where employers are covered by the OSH Act. This standard should extend beyond the construction sector, and should include public employees in state OSHA plans.

In the interim, OSHA should establish a special-emphasis program that cites the lack of a ROPS and seatbelt on compactors, and off-highway vehicles as a violation of the General Duty Clause.

(A change of slides.)

MR. RUSSELL: The U.S. Department of Labor's Advisory Committee on Construction Safety and Health should consider recommending an emergency temporary standard to OSHA that requires the installation of ROPS and seatbelts on compactors and rollers.

All compactors or rollers without ROPS should either be retrofitted with a ROPS and seatbelt, or scrapped.

(A change of slides.)

MR. RUSSELL: Research is needed on how to prevent the overturn-related crushing of an operator by the canopy portion of a ROPS in the event of seatbelt failure, or failure to use a seatbelt.

Vibratory compactors should be designed to automatically disengage from dynamic to static mode when an operator stops a vehicle.

Articulated vehicles should be designed for stability in any operational position.

(A change of slides.)

MR. RUSSELL: Vehicles with ROPS cabs should be designed to operate only when the door is shut.

Trailers with loading ramps should be used when transporting compactors so the ramps can accommodate the width of the compactor, and assure adequate friction to avoid slipping or skidding.

Padding on the interior of the ROPS is needed to protect against head injury during overturns.

(A change of slides.)

MR. RUSSELL: Training procedures for the safe operation of compactors and rollers are needed. These procedures need to deal with the safety of an extra rider on the vehicle during instructions.

(A change of slides.)

MR. RUSSELL: The training of operators as established by the manufacturer should include the following: proper use of a compactor. For instance, rolling slopes vertically, not horizontally.

Let me say this. In most cases, most construction contractors when they have a slope that has any grade to it, normally they actually use a dozer, a track dozer or some other machine to actually roll the slopes, because they know that you are limited to the degree that a compactor can maneuver.

So again, these are things within the industry. Again, you can have some inexperienced contractor or some inexperienced operator actually come and do exactly what they're not supposed to do.

Now, saying that, it is important to say that in most cases on a construction site, they look at the compactor as a training tool. The operator with the least amount of experience is actually put on a compactor and told to learn his or her job.

As a result of that, that's another reason why

you have so many injuries and fatalities. I think that's the other reason why we need a standard, and we actually need training to have contractors know that you can't just put someone on the machine because the machine has basically simple controls. Again, you are actually dealing with a death trap. The presence of a ROPS mandatory presence and use of operational seatbelts.

(A change of slides.)

MR. RUSSELL: Procedures for runaway prevention and action in case of runaway. Stability factors of the vehicle, including knowledge of its tip angle, the effect on the tip angle of adding ballast, the static and dynamic effect on the center of gravity of articulating the vehicle and its inherent stability as compared to other vehicles.

(A change of slides.)

MR. RUSSELL: Environmental hazards, including slopes, edges, obstructions, hot asphalt at the edges, soft soil pockets, and the lack of friction on rock surfaces.

Loading and unloading compactors on and off flatbed trucks. The need to properly maintain the vehicle braking system.

Basically that's the end of our presentation. Any questions that Nick or I can entertain? Let me say in summary, a couple of things.

Number one is even though Melvin Myers in his recommendation gives a number of things, I would like to request this committee form a workgroup. I know that maybe all of the recommendations might not necessarily be what the industry might adopt.

But I think in the workgroup with the industry participating, we can actually come up with what might be a good standard for the industry in terms of moving forward.

MR. YAKSICH: Let me just echo that recommendation. We fully support that recommendation, and also thank you for your work that you've put into this presentation. I think it laid out the issues and again, tries to elevate this to a priority for this committee to set a standard.

MR. RUSSELL: Now, the other thing we'd like to say, again, a special thank you to the Campaign to Protect Workers Rights. It was their efforts that generated the report and actually brought us here today.

We'd also like to say that we're not looking for OSHA or the ACCSH committee to do all the work themselves. We have operating engineers, we commit our resources to participate with the work group, or if it were to lead the rulemaking or whatever, we commit our resources to assist in moving this agenda forward.

AEM, Association for Equipment Manufacturers, they do the same. So does CPWR. We have actually talked with other organizations who are prepared to do the same in terms of trying to move this issue forward. With that, questions?

CHAIRMAN KRUL: Linwood, then Kevin.

MR. SMITH: Thank you. Very good presentation. Can you give us some idea of the percentage of compactors or rollers that are sold without ROPS on them today, and maybe some history as to how they've developed over the years?

MR. YAKSICH: Yeah. I would say it is really very small. I mean, it is really hard to get a handle around. There are some other issues, not only sold that way. Most of the major manufacturers will not sell a machine with a ROPS. So it is a question of there may be a couple out there that sell, and it may be an option, a deletable option that they may have. Or it may be something that can be taken off. I can't give you quite a percentage. Probably I would say 10, 15 percent maybe.

MR. SMITH: As a follow up, how long have the equipment manufacturers done this? The majority of them?

MR. YAKSICH: With the ROPS?

MR. SMITH: Yes.

MR. YAKSICH: I would say over the past decade.

MR. SMITH: Thank you.

CHAIRMAN KRUL: Kevin Beauregard?

MR. BEAUREGARD: Yes. Emmett, one of the recommendations that you had down in your presentation for this advisory committee was to consider recommending emergency temporary standards. I just wanted clarification on that.

Are you asking this committee to actually write temporary standards to give to OSHA? Or are you asking that they recommend to OSHA that they come up with temporary standards?

MR. RUSSELL: Well, let me say specifically what my request is. My request is actually that you form, first of all, a workgroup, and lets come up with what we consider to be standards. And then let's try to move them forward in maybe a little faster fashion.

The recommendations that were on the slide are basically recommendations from this study. I have to say, I don't want to necessarily tell you that the operating engineers and equipment manufacturers have totally embraced all of those recommendations and we're not flexible on any of them.

Again, Kevin, I'd like to say that we will attempt to be flexible, but I think the formation of a work group is the first step. Then the work group product can be looked at, and then a decision has to be what to do with the work group product.

CHAIRMAN KRUL: Mike Thibodeaux?

MR. THIBODEAUX: I think I heard you say in your presentation that the manufacturers didn't agree with all of these recommendations.

MR. RUSSELL: Exactly, yes.

MR. THIBODEAUX: Which ones didn't they agree with?

MR. YAKSICH: Well, the two that come out, I think there was a line in there that says, "for all compactors." If you look at the California regulation, there is a certain size limitation for some of the smaller rollers. There are some safety concerns with the smaller. So to say all compactors would be something that our committee, in fact, they are meeting today in Milwaukee, are currently reviewing.

The second point is the issue of retrofitting. I believe there is a recommendation that all rollers should be retrofitted. I think that's something when we get the stakeholders, the contractors, the operators around a table and start seriously talking about this, we look at some kind of phase-in or how we deal with that issue. That is going to be a difficult issue that needs to be addressed.

MR. RUSSELL: Right. And there are a number of older machines already out there in the industry without ROPS. The question is in some of those older machine, there are not packaged ROPS available for them. So again, that will have to be a discussion in the work group as to how to address those.

I think in the report clearly it talks about older machines that can't be fitted should be scrapped. Ideally for the operators, I said that's an excellent idea.

MR. YAKSICH: And for us, too.

MR. RUSSELL: For the contractors, they may not embrace that so much. So again, I think that is ideally showing you how the industry has to come together and actually make that decision.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: I had a question for OSHA. The mention earlier this morning of the direct final rule on ROPS, what exactly is that? I would support having a work group, I would support this committee asking OSHA to put it on their regulatory calendar as something that they are going to be working on.

I don't really know how an emergency standard fits into that, and we may need Sarah to tell us more about whether this committee can request that OSHA put out an emergency temporary standard, or just put it on the agenda.

MR. SWANSON: Multiple questions in there. This committee can of course ask OSHA to do anything. We've given you license to ask us to do anything. If you wish to ask us to consider an emergency temporary standard, you are free to do that. I would not wholeheartedly endorse that. It doesn't have a real good track record over the first 30 years of OSHA, but the world can change.

I do endorse what Mr. Russell has suggested in having you folks put together a workgroup. My friends in derricks who have very good experience, excellent experience, of this committee, formulated a workgroup, met for a long time, worked as really a center for the entire crane industry to come forward and sit in meetings and actually monitor for a couple of years, and formulate a concept regulation for OSHA. They probably went into more detail than they had to, but nonetheless, they did it. It was a good work product.

It was then used when OSHA took the next, in my opinion, step and went forward with negotiated rulemaking. They took the work product of that workgroup and used it as their prototype and worked off of that and wrote a regulation and reg text for OSHA's use. And we are still in the process of.

Emmett Russell was on that negotiated rulemaking committee. When these two gentlemen came to me some time ago -- I have a very short line outside of my office every morning for industry asking to have more regulations. It was kind of a surprise that these two folks made these recommendation to OSHA directly. We heard them. We'll follow up on it.

Whether or not it gets on a reg agenda, I was not able to make a commitment for OSHA, either being on this reg agenda, certainly not. But in the spring is it going to be on our agenda? I don't know. That will be a decision that will be made by someone else in the Department of Labor. I will carry the suggestion forward.

But I did suggest that they come to this committee with this request to form a work group because of its successful track record as putting the issues together, getting all effective elements of the construction community to come in and have a voice as to what a standard kind of looked like. I think it is a fine idea, we've got a good history of it. I would endorse it.

CHAIRMAN KRUL: Sarah?

MR. SHORTALL: Scott, what you were asking about before, this committee would have the right to make a recommendation to OSHA. But the Act is very clear on the limited situations in which the agency can and is allowed to issue emergency temporary standards that basically don't have the agency going through its standard ruling and procedures. In the Act, that is Section 6C of the Act, the agency can issue temporary standards if it finds and makes the determination that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards, and that such an act of the emergency temporary standard is necessary to protect employees from danger.

So it has to meet both of those criteria in order for the agency to issue one. What Bruce was saying about the track record in instances in which the agency has issued a temporary standard, and we have been challenged, we have lost the rule. Instances in which the Department has determined that the requirements of 6C of the Act have not been met and declined to issue a temporary standard, and has been challenged for failing to do so, we've been upheld for denying that.

MR. SCHNEIDER: Let me just respond to that. I think the intent of the request from the folks here is that the question of how do you expedite a rulemaking so we don't have to wait ten years for OSHA to require ROPS on compactors?

You know the agency's track record on rulemaking is that it does take quite a long time to develop something and promulgate it. So I think there may be some middle ground between requesting emergency temporary standard and requesting some sort of expedited rulemaking so we can get the job done sooner.

MR. SHORTALL: Well, we don't have rules for "expedited rulemaking" that would allow us to ignore some of the requirements that we have and requirement to go forward with a proposal comment to that.

I think what Bruce was saying was the use of work groups to clarify thinking much more quickly, and give the agency good product that they can use to move forward a little bit more quickly. I hope I characterized your comments correctly.

MR. SWANSON: You did. You make me sound a lot smarter than I am.

CHAIRMAN KRUL: Dan Murphy?

MR. MURPHY: Dan Murphy. I have a question for the equipment manufacturing representative. It appears that loading and transporting this equipment causes significant problems in the industry. I'm just curious.

If I were to order a new compactor today, would it have anything either in the instruction manuals or a warning sticker on the device that says this is the type of ramp and the type of trailer that you need to transport this equipment?

MR. YAKSICH: I won't pretend to be an expert in the manual side. If I could follow up, if that is something I could do, I'd be happy to follow up with some examples of some of the manuals and some of the procedures that the leading manufacturers use in providing that kind of education to the operators

MR. MURPHY: And also, is there some sort of sticker on the machine? I would really like to know if the operator even knows that you have to use a certain type of trailer, and a certain type of ramp.

MR. YAKSICH: I appreciate that. I'll follow up to the Chairman and circulate.

CHAIRMAN KRUL: Greg Strudwick?

MR. STRUDWICK: I am in favor, Emmett, of your suggestion to form a workgroup. We are concerned in the field about the instability of the small compactors, and how easy it is to tip, that kind of thing. I know that rollover protection has been second nature to all of us at this point.

When I see the slide that says that one recommendation would be dictate that the doors are closed. Well, there is an awful lot of compactors that have no doors, okay? And in some cases where doors have to be closed, you could create a hazardous environment in some cases. So the fact is that I think it ought to go to a workgroup. I think it would be a great idea to include the manufacturers in that work group, and what their intent is, and how they can make corrections.

I know they do put a lot of stickers on the inside of their ROPS to dictate wearing the seatbelt and making sure that the seatbelts are fastened, and warning against rollover and the possibility of the rollover protection crushing the individual because of the rotation of the machine and the G forces that are created when he tries to jump. He just can't jump as far, because he is jumping with the machine.

I have contracting friends that have had fatalities, and they have been young, inexperienced operators on the equipment. They were caught by the rollover protection itself.

So everything that you said is focused on the safety of the employee. I think we need to get together, talk about it, and come up with a consensus. You know what I'd like to see happen? I'd like to see us go back into Subpart O or something like that, and I don't know how hard this is to do, to amend. Instead of creating a whole new regulation, make this a little more comprehensive in the regulation that we already have.

So it would help me, because it's hard enough to follow everything in this book. But it makes it a lot better if I only have to use this book.

MR. RUSSELL: Let me say that part of the reason for supplying the ROPS standard for the Corps of Engineers, and also the California standard is I don't think we have to completely reinvent the wheel. I think there is some information out there that we can utilize in terms of moving forward.

MR. STRUDWICK: To finish up, I only know of a few types of rollers that we have in the field today that I see on a daily basis. Most of them need to be retired without rollover protection. They are typically old pneumatics, and they are the typical ones that operators don't check the tire pressures and that kind of situation. They do have a tendency to roll.

I haven't seen any new machines come out without rollover protection.

CHAIRMAN KRUL: Tom Broderick?

MR. BRODERICK: Would the Chair entertain a motion to create a work group?

CHAIRMAN KRUL: In a couple of seconds. Just a quick question for Emmett, if you know the answer. In reading the CPWR summary, it says, "Between 1986 and 2002, there were 56 deaths." Do you know if that's the total? Is that the total number of fatalities? Or is that for that particular study?

MR. RUSSELL: That was the study.

CHAIRMAN KRUL: And that was the total number of fatalities that were reported due to rollover?

MR. RUSSELL: My understanding is that they studied 58 events, and that was the result of the events. Now, but whether the study actually included data from state plan states that might be a little different from federal OSHA, I can't tell you that.
CHAIRMAN KRUL: Chery?

MS. ESTILL: I guess I am confused. Jennifer Silk said this morning about that there is a ROPS -- that they are working on correcting problems with the existing standard. Does that fit in? Does anyone know what that is all about?

MR. SWANSON: Yes. Let me -- I'm sorry. This was asked before as part of Scott's question that I forgot. What Jennifer was talking about is a very, let me call it limited. It is a technical promulgation on a ROPS standard.

Years ago, OSHA put some specific requirements in an OSHA standard. At a later date, OSHA changed its standard and said, we're going to go with these consensus standards rather than having our own data request in the standards. What OSHA now wants to do because that apparently complicated the issue even more, we want to go back in and make a technical amendment to the standard, get the reference to consensus standards out, and put the specific requirements back in.

That is not an in-depth explanation as to what is being done, but for purposes of this discussion, I think that's sufficient. It had nothing to do with what Emmett is asking us to do.

MS. ESTILL: That's ROPS for a lot of other equipment, not for --

MR. SWANSON: Actually, it is my understanding specifically for tractors.

MS. ESTILL: Okay.

MR. RHOTEN: Emmett, this standard from California, does that address all the needs that you require to solve the problems now?

MR. RUSSELL: Well, number one, I did not supply you with a consensus standard. There is a consensus standard on ROPS, there is a California standard, there is a Corps of Engineers, and I think between the three all of the issues are covered, it is just that we have to select what is best for the industry.

I think the industry can best do that. The cranes were a very, very complex issue. I don't see ROPS on compactors being that complex. I would doubt that the work group should not take a year to come up with recommendations to move forward.

MR. RHOTEN: Well, it sounds like you brought us all of the answers to the problem.

CHAIRMAN KRUL: Does anybody else have questions for Emmett for the manufacturing part? Tom?

MR. BRODERICK: I would like to move that we create a work group to address the issue at hand, the rollover protection structures on compactors.

CHAIRMAN KRUL: Is there a second to that?

MR. MIGLIACCIO: I'll second that.

CHAIRMAN KRUL: All in favor, signify by saying aye. Opposed, if any? Motion carries.

MR. RUSSELL: One other issue that I'd like to bring up, if I can. The standard addresses two lapses. One is rollover protective structures on compactors, and it also mentions skid-steer loaders.

I'm not trying to complicate anything, but in the work group, if there is time that they can look at possibly looking at both, you know, I'd like to just kind of leave that door open, if that be possible.

CHAIRMAN KRUL: You can bring that up. As you offer, certainly once I appoint the committee, which I'm about to do in an ad hoc fashion, we always welcome participation in those work groups for expert purposes. Folks like yourself, the Center to Protect Workers' Rights, and anyone who feels that they can contribute to the work of that subgroup -- so it might be the manufacturing side, we're certainly going to try to balance this between labor management and the other sectors.

So we thank you both for your presentations, and we look forward to you assisting the work group once it becomes appointed.

MR. RUSSELL: Thank you very much.

CHAIRMAN KRUL: Thank you. I shouldn't have said appointed. I'm looking for volunteers. Greg Strudwick, Mike Thibodeaux, Stephen, and Dan Murphy. Labor side. Frank Migliaccio, Bill Rhoten. Anyone else?

Let me do this again. Steve Wiltshire, Mike Thibodeaux, did I have that right? Greg Strudwick, Dan Murphy. And I had Frank, Bill. Greg, can I appoint you as the Chairman of that committee, and Frank the Co-Chair.

Of course, as always, not only the people from outside, but anyone who would like to participate in any of those workgroups is welcome.

MR. MURPHY: Just a quick question. In your last comment, you said we can bring to the table other types of equipment. I would hope that's the case, because I see a lot of agricultural equipment on job sites that doesn't have rollover protection.

CHAIRMAN KRUL: I think you can address that in the workgroup and bring recommendations back to this committee for OSHA.

We have half an hour left before we break for lunch. Scott, do you want to do -- let's go ahead and break for lunch.

(Whereupon, there was a lunch recess.)

CHAIRMAN KRUL: I understand that we have reconnected technology here. Scott's DVD is ready to go.

TRENCH SAFETY PRESENTATION

MR. SCHNEIDER: My name is Scott Schneider with the Laborers' Health and Safety Fund. I wish I could take credit for this work product, but I can't. I'm just here to show it.

This was a CD-ROM that was developed by NIOSH by Pat Coleman and the NIOSH Spokane research labs up in Spokane, Washington on trench safety. Since we are doing this work group on trench safety, Matt Gillan at NIOSH in the Office of the Directors asked if I would

-- he couldn't come to the meeting today and tomorrow. He asked if I would show it. I think it is a really incredible product.

All of you guys that have new directions money to develop products are going to have to turn it back now probably. You can use this instead.

(A showing of slides.)

MR. SCHNEIDER: This is the opening page. It basically has nine sections. An introduction about how to use it, and the credits you don't have to look at. I'm going to briefly go through some of the other sections to show you some of the interactive features of this.

The four types of trench collapse here, they do have like here, spoils pile slide. You can click on it and show how it collapses. There are little videos that go along with them. I don't know if you'll be able to hear this.

(A showing of video.)

MR. SCHNEIDER: This is just an example. I am not going to use the sound that much. You can see the different kinds of trench collapses. This guy, Captain Howarth, is from Spokane Firefighting and Rescue Team, he talks about how he rescues people from trench collapses. So you can just see how these collapse.

(A change of slides.)

MR. SCHNEIDER: The second part is on the frequency and costs of these fatalities and injuries. You can see how many collapses occur a year, about 1,000 reported injuries, and 50 to 100 deaths.

(A change of slides.)

MR. SCHNEIDER: It also talks about how much the fines could be. This might be an exaggeration.

(A change of slides.)

MR. SCHNEIDER: But there is a discussion of the different kinds of soil classifications. They have a little discussion of it here, there is a video. Then you can have a quiz, what type of soil is sand? Well, it tells you over here, sand is Type C soil, et cetera. What type is Loam? Type D soil. Stuff like that. It shows about how to test with a pocket penetrometer.

It shows how to test with a Torvane and the thumb penetration test if aype A soil, type B soil, and type C soil. Then you can go on.

(A change of slides.)

MR. SCHNEIDER: OSHA requirements. You can see here, these are the general OSHA requirements. Like, for example, exposure to vehicular traffic. They'll show you where are the safety protections in this photograph. Protective warning vests.

If you go back to where are the, if you look at say access and egress, there is a ladder. Structural access and egress ramp with fall protection, et cetera. There is a whole section on the different types of trenching protective systems, like sloping. Like for type A soil, for type B soil, and type C soil.

Then it talks about benching, and then lastly, type A over B, B over C, C over B, that kind of stuff. Then shoring, how to install shoring. There you go. Then for shielding, simple and effective.

(A showing of video.)

MR. SCHNEIDER: Then the last thing they have here is examples from the field of -- they have bad practices here. Can you spot the problems on this slide?

Here it shows you what they are. So there are five examples here. There is the trench box, what is the problem with this slide. That's it. This is Pat Coleman, the guy that did it right here pretty much. There are little videos that go with a lot of these sections.

I think it is a really useful tool. Matt said it would be on the NIOSH website in a couple of months hopefully, in a month or two. I have one copy of it, and I can make copies, or we can get Matt to make copies for people on the committee perhaps, or get a copy to Bruce and he could give it to the committee members.

Any questions about anything that anybody wants to see on this that we haven't showed you already? Yes?

CHAIRMAN KRUL: Tom?

MR. BRODERICK: Under the cost of trench collapse, I know you touched on it, but does it actually give numbers?

MR. SCHNEIDER: They have a thing here about OSHA penalties. It says a worker was killed, another injured, and it cost the company a $350,000 fine, $8.8 million in damages to the surviving injured worker. Here is another one. A $60,000 penalty, $460,000 penalty, and a $100,000 penalty.

MR. BRODERICK: What is the movie part of that?

(A showing of video.)

MR. BRODERICK: Thank you for that.

MR. SCHNEIDER: Sure. Then they have facts about the fatalities. Ninety-five percent had no protective system of injuries. Fatalities, 10 to 50 percent died before they were rescued. Most businesses have less than ten employees. Anyway, any other questions, comments? Yes? Sarah?

MR. SHORTALL: Scott, is there something that is available from NIOSH as a CD-ROM? Or is it on their website?

MR. SCHNEIDER: My understanding is it is going to be on the web shortly, like in a month or two. In terms of what -- I assume they'll make it available as a CD-ROM too, but I don't know. I just got this last night around 5:00, and Matt showed it to me and asked if I could show it to everybody.

CHAIRMAN KRUL: Thanks, Scott. I appreciate that. If you get copies to Bruce's staff, I'm sure we can get them distributed to the committee.

We are going to hear from the subcommittee on trenching and excavations report tomorrow. That report is in your packet under this memorandum, for members of the committee. There are some interesting facts in there to be discussed tomorrow.

While they are switching this computer over, it will take five minutes. Mr. Director, could we discuss, just for purposes of getting it off the agenda, the schedule for the next meeting, and the potential for possibly again holding it in conjunction with Mr. Broderick's safety council?

MR. SWANSON: You may, sir. Discuss away.

CHAIRMAN KRUL: Understanding that it is all predicated on OSHA budget. Can we tentatively schedule holding that meeting? Tom, do you have the dates of the February --

MR. BRODERICK: I believe it is February 15, 16, and 17. Would that be a Tuesday, Wednesday, Thursday?

CHAIRMAN KRUL: Yes. Kevin has his calendar. Can we look at that? I mean, is the committee, those of you that have gone before and had the opportunity to see that safety expo, it is a wonderful thing. Would the committee consider going back to Chicago for its meeting? Scott?

MR. SCHNEIDER: Yeah. I'd be happy to do that. I know I have a conflict, though. We are having our annual conference that week. But I can make it on Friday. I'll make it as much as I can.

CHAIRMAN KRUL: Why don't we look at the potential, anyway, of doing that.

MR. SWANSON: Certainly. Normally what we would do if it were here, we would have a full day on Thursday, and a half day on Friday, giving people the option to use Friday afternoon for your travel arrangements.

If you'd prefer, we could think about a half day on Thursday, particularly if some of the conference is still going on on Thursday a.m., and have the full day on Friday. I don't know if that would be acceptable to the committee or not.

MR. RHOTEN: It seems upside down, to be candid.

MR. SCHNEIDER: I mean, Chicago is relatively easy to get to. It is not that long of a trip. So I would prefer that, for me it would be better. But whatever everybody else prefers is fine.

CHAIRMAN KRUL: Why don't we look at the possibility. We've have a ways to go to find that yet.

MR. SWANSON: Yeah. A couple of things are going to happen between now and February. There is winter. I was thinking more in terms of maybe between now and February, we'll find out what the budget is for the fiscal year. I understand that they've got an election planned again this year.

(Laughter.)

MR. SWANSON: That may or may not have some impact on us. So there are some variables out there. But I'd be happy to consider that week.

If I understand the committee's sense here, we'd be looking at the end of the week, following Broderick's conference, and use, I should direct my attention to Thursday, Friday in some combination, although there is at least a minority opinion that half a day Thursday and all day Friday would be upside down, right?

MR. RHOTEN: Yes. I would prefer to get out of there at noon on Friday, to be candid about it. Get out of Chicago. That time of the year, the weather.

MR. SWANSON: Can we get a sense as to how many would prefer the full day Thursday?

CHAIRMAN KRUL: All right. How many would prefer doing it under the normal schedule? A full day Thursday and a half a day on Friday? That looks like a majority, without asking for the opposite. I concur. On Friday, O'Hare can be just a disaster. I mean, you've got weather conditions to consider, too. You never know. February in Chicago isn't the greatest time to be there, but we can do that. Okay. Why don't we look at that and see what we can come up with?

One more thing under the remark section, just while we're waiting. I have been reminded that there are no minutes from the last meeting. Mike Stabb was going to -- we will have minutes to look at. We are required, as council pointed out, we are required by regulation to have a copy of those minutes looked at and approved. So we will try and attempt to do that tomorrow.

Is that ready to go, Michael?

MR. BUCHET: Of course not. The technical answer is we let somebody with a newer computer attach to it, so it has lost all of its settings for Windows '98, which is what this one is. Let's see what it looks like. If it cuts off the picture, take another five minutes, and I'll go get our projector, which I know does do this.

CHAIRMAN KRUL: Mike, while you're doing that, I had posed that question on the number of fatalities with Hispanics. Bruce and Stew got some information for us.

MR. SWANSON: Okay. Using the CFOI data, let me first talk about Hispanic fatalities in 2002/2003 for all industries, okay? I have the more sophisticated breakdown for it that way.

In 2002, according to CFOI, the total fatalities, Hispanic fatalities were 841. Then they break that down into native-born, 263, and foreign-born, 578. Then for the latest year that there is data, that number dropped to 791 total, 272 native-born, a slight increase, 519 for foreign-born, a more significant decrease. That is for all industry.

For the construction fatalities, I have only the gross numbers. In 2002, total Hispanic fatalities, 244, increased in 2003 to 260. I do not have the breakdown in construction for foreign-born and native-born. That's it. Thank you.

CHAIRMAN KRUL: I take it Noah will be giving this presentation.

MR. SWANSON: You take it correctly.

CHAIRMAN KRUL: Noah Connell from the Directorate's Office. Welcome.

MR. CONNELL: Thank you.

CHAIRMAN KRUL: It is always good to have you here.

MR. CONNELL: It is a pleasure to be here.

CHAIRMAN KRUL: Okay. The floor is yours, sir.

MR. CONNELL: Thank you.

CRANE AND DERRICK PRESENTATION

MR. CONNELL: Today we are going to give two presentations, one on the cranes and derricks standard in construction C-DAC, the other on confined space. What we are doing today is preparing you for when at a subsequent meeting, we will be asking the committee for its advice on these two projects. These are going to be proposed standards.

We are not going to ask for your advice today. We are going to give you a briefing on what is in these documents. We have already given you electronically copies of both documents by email, and then we'll be happy to entertain some questions on both standards. So we'll start with the C-DAC standard.

(A showing of slides.)

MR. CONNELL: First, I want to just say a word about the fact that an ACCSH work group for several years worked quite tirelessly on the subject of updating OSHA's 30-plus year old crane and derrick standard. The work that that committee did, and the progress that they made was a significant factor in the Department's decision to go forward with the C-DAC project. So I want to just thank again those many people who participated in that ACCSH work group over those several years.

The C-DAC standard, just to give you an idea of where we are in the process, this is being done through a negotiated rulemaking. The first step was to develop a consensus-based document, which we now have. After that, we will be issuing a proposed rule that will be given out to the public for public comment. We'll analyze those comments, and then issue a final rule. So just to give you an idea of where we are in the process.

As I mentioned, this is a negotiated rulemaking project. Today what I'm going to do is just say a little bit about negotiated rulemaking, talk about the C-DAC committee. We'll spend most of the time touching on the highlights of the C-DAC document. I'll just say a couple of words about some topics that the committee addressed and decided not to include in the standard, and then what the next steps are.

(A change of slides.)

MR. CONNELL: In negotiated rulemaking, the idea is that the government identifies key interests in the industry, the construction industry, that are likely to be affected by the new rule. We put together an advisory committee to develop a consensus-based document that would form the basis of a proposal of a proposed new rule.

As I mentioned before, that gets submitted to the public for comment. This, by the way, is the second OSHA safety standard that we've used negotiated rulemaking for.

(A change of slides.)

MR. CONNELL: When we established the C-DAC committee, the Secretary of Labor picked 23 individuals to form a committee that represents a cross-section of the construction industry.

(A change of slides.)

MR. CONNELL: We held our first meeting July of 2003. Assistant Secretary Henshaw asked us to complete the negotiating phase in one year. I am pleased to be able to tell you that we accomplished that aggressive goal. We met 11 times, the committee came up with a consensus document.

Now, I've used the word "consensus" a couple of times. Under the ground rules of the negotiated rulemaking, the committee decided what consensus would mean. In this negotiated rulemaking, the committee decided that a consensus would mean that there are no more than two non-federal descentors. So that is the basis upon which we proceeded, and that is what the term "consensus" means for purposes of the C-DAC rulemaking. We did reach consensus in July.

(A change of slides.)

MR. CONNELL: I'm going to go over just some highlights of what is in the standard.

(A change of slides.)

MR. CONNELL: You can see what they are there. Jut to give you an idea of what I wasn't planning on talking about, as you can see, there is a number of other topics that the C-DAC standard address. Just so you see the full scope of the project.

(A change of slides.)

MR. CONNELL: So starting off with scope, what does the standard cover? The committee wrestled with this quite a bit. We wound up with sort of a hybrid approach. We have both a functional description, that is it is equipment that will hoist, lower, and horizontally move a suspended load.

(A change of slides.)

MR. CONNELL: Then we also gave a rather long list, as you can see, of examples.

So we are trying to craft a standard that is both going to be somewhat flexible in terms of the emerging technology, but also one that gives the construction industry a pretty clear idea of what it is that we are covering.

(A change of slides.)

MR. CONNELL: There are some specific exclusions, such as backhoes, forklifts, and there are some others as well.

(A change of slides.)

MR. CONNELL: We have limited requirements for a few categories. First of all, equipment 2,000 pounds and below, we have limited requirements for. In that first category, 2,000 pounds or less, there are several portions of the standard that apply, and the other portions do not apply.

Dedicated pile drivers, most of the standard does apply, but there are a few that don't. We also have limited requirements, as you can see, for overhead gantry cranes and side-load tractors.

The standard also treats specifically a couple of other types of equipment, and adds some requirements for those. Those are tower cranes, derricks, and what we're calling floating cranes and land cranes on barges.

(A change of slides.)

MR. CONNELL: Ground conditions. The committee felt that one of the keys to the safe use of cranes really starts with ground conditions. The committee felt we had a need to come to grips with that.

(A change of slides.)

MR. CONNELL: And so what the committee came up with was that you've got to have a firm, drained, and graded ground. This is the responsibility of the controlling entity to ensure that this is provided.

Now, when we say firm, drained, and graded, that doesn't mean a pristine site that is so pristine that you don't need matting or blocking, or other of the typical tools of the trade. It has got to be sufficient to support the equipment in conjunction with those tools of the trade.

If there isn't a controlling entity at the site, then the employer with the authority over the ground conditions is responsible for doing this. In addition, the crane user has to be informed of known underground hazards. What we mean by that is any hazards that are identified in site documents, those have to be pointed out to the crane user. These are the typical things like voids and underground utilities, which by the way, the committee identified as a source of a number of, especially overturning incidents, from cranes setting up over voids.

(A change of slides.)

MR. CONNELL: Another key area of focus for the committee was the hazards associated with assembly and disassembly. What we have is, as we do throughout the standard, is a number of options for employers. If you want to use the manufacturer's specified procedures for assembly and disassembly, you can do that. If you don't want to, then you can have employer procedures, but we have some specific requirements for what those employer procedures have to meet.

(A change of slides.)

MR. CONNELL: They have to be developed by a qualified person, and they have got to prevent unintended, dangerous movement. They have to provide adequate support. They've got to minimize exposure to unintended movement or collapse. So you've got to meet those goals if you're going to use your own procedures.

(A change of slides.)

MR. CONNELL: There has to be a supervisor. The standard calls an assembly, disassembly or AD supervisor, that person has to be competent and qualified. They are going to have to know the procedures, they are going to have to review them if they haven't used them before. Plus they have to make sure that the crew understands what those procedures are. What are their tasks? What hazards apply to their tasks?

We also dealt with the issue of outriggers being extended fully or otherwise. You don't have to extend them fully if the manufacturer allows you to extend them partially.

(A change of slides.)

MR. CONNELL: One of the problems when we wrestled with the assembly/disassembly issue was that a lot of the hazards, the committee felt, don't necessarily have just one solution. A lot of the ways of dealing with these hazards is going to vary from site to site.

So you'll find in that section of the standard, there are some requirements that apply all the time. But there is also a number of hazards that we have identified, 12 specific key hazards. We haven't necessarily said what you're going to do to deal with these hazards, but we've said you've got to have this AD supervisor address them and come up with solutions for them. So that is the approach that we took. The committee identified what they felt were these key hazards, and you can see them there.

(A change of slides.)

MR. CONNELL: The problem of crew members being out of view of the operator during the assembly/disassembly process was also addressed. We came up with a system where the crew member has to tell the operator where they are going. The operator can't move the equipment unless they first give a warning and time to get out, or they have some other system to inform the operator that it is all clear.

(A change of slides.)

MR. CONNELL: One of the most significant areas of hazards in terms of what is causing crane-related fatalities is electrocutions. We spent an enormous amount of time wrestling with this problem.

To put it in a nutshell, the current standard doesn't -- and I'll call the current standard the old standard, 550. The old standard doesn't have very much in it designed to prevent people from breaching that danger zone, the clearance distance from power lines.

It basically says don't breach the distance. It gives a distance, but that is about it. The committee felt that you know, what we really have to do is do more to try to prevent these accidents, to try to prevent breaching that clearance distance in the first place. That is really the cornerstone of what we have tried to do in this standard.

(A change of slides.)

MR. CONNELL: So how do we do it? I'm just going to give you a brief overview of this

(A change of slides.)

MR. CONNELL: The first step is you identify the work zone that you're going to be dealing with. Now, you've got a choice. If you are out in the middle of the desert, you can just say it is 360 degrees around the crane. But if you are in an urban area and you are only going to be working in one quadrant of that 360 degrees, we say okay, that's fine. You designate your work zone using flags or similar means, and that is going to be the zone that your crane is going to be operated in. The operator is told, you cannot go outside that zone. They have those flags to tell them the boundaries of that zone. So that's the first step.

The second step, all right.

(A change of slides.)

MR. CONNELL: The question to you is when you are within that zone working at your maximum working radius, could you be within 20 feet of a power line? If the answer is no, then you're done. You have set up the boundaries of your work zone, and as long as you stay within those boundaries, you don't have to do anything else.

If the answer is yes, you could be within 20 feet of a power line, then we're going to give you three options as to what to do. First option, just like in the old standard, you can de-energize and ground. But the committee members told us, you know what? That hardly ever happens in the real world. So we came up with these two other options.

Option number two. Maintain a 20-foot clearance distance using our encroachment prevention measures, which you see in the box there. The encroachment prevention measures, we have a few things that you must always do, and then we have a menu list of options for an additional item that you have to select from.

You've got to have a planning meeting. If you use tag lines, they have to be non-conductive, and you must use elevated warning lines, barricade, or a line of signs so that the operator can see where that 20-foot mark is.

Plus you've got to pick one item off your list of menu items. That could be a proximity alarm, a spotter, warning device, or range limiter for insulating.

Now, let's say you feel like, I've got to work closer than 20 feet. Okay. You can use option number three. You can find out from the utility what exactly is the voltage on that line, look up the voltage on our Table A for the exact clearance distance for that line, and that becomes your boundary that you cannot cross. That becomes the boundary that you have to apply these encroachment prevention measures for.

(A change of slides.)

MR. CONNELL: That table is the same clearance distance that we have today essentially, and it is the same one that is in the ANSI standard. So those are your three options for power lines under 350 kilovolts, which is we are told about 90 to 95 percent of the utility lines that contractors have to deal with.

So that's the basic approach to keeping people from accidentally getting too close to power lines. Now, before I take a question here, I want to just show you what's next, and see if that is what your question relates to.

(A change of slides.)

MR. CONNELL: We also deal with where you are going to intentionally work inside the Table A zone. It is permitted, but if you are going to do it, you have to do all the things that are specified. There aren't options, these are mandatory. The whole list is mandatory.

First you have to find that staying outside the Table A distance is infeasible. You've got to find that it is infeasible to de-energize and ground, and then you've got to do our list of 12 items that you see there. These include things like not just the planning meeting, but using a dedicated spotter, or having an elevated warning line or barricade, using an insulating link, using a range limiter if the equipment has that already installed.

Limiting access to essential employees, grounding the crane. So you've got these 12 things that you're going to have to do to maintain a clearance distance that is established by the power line owner, the utility. Any questions about that? Yes, sir?

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Yes. The Table A distances in this particular section, do they actually take into consideration things like the possibility of arcing? Or weather conditions like wind or fog?

MR. CONNELL: Yes, they do. Well, wind and fog I'll deal with separately. In terms of arcing and the danger of electrocution if you were at or just beyond that clearance distance, yes, this table does account for that.

When you talk about things like wind, that relates to what might happen to the load, for example, or the crane itself under a wind load, or under a wind gust load, and swinging. Yes, the answer is that table does account for that to some extent.

But remember that we have designed these sets of requirements so that you're going to have to set up these systems to keep you out of this zone in whatever conditions you're working in. So if you are working under high wind conditions, you're going to have to consider that when you institute your encroachment prevention measures.

So this is a table that your measures are going to ensure that you don't breach. That's the idea. Any other questions on this section? Okay.

Another area that received quite a bit of attention was operator qualification and certification. The committee was very concerned about this area, because I think the committee felt like this was another of these key aspects of preventing crane accidents.

(A change of slides.)

MR. CONNELL: What we came up with was four options that you can use. A certification by an accredited testing organization is one option. An employer qualification program is a second option. A certification by part of the U.S. military is option three, and a state or local license is option four.

(A change of slides.)

MR. CONNELL: The accredited testing organization, the first option. The way this works is that, first of all, you have a nationally recognized accrediting agency. So far there are two in the United States. They will credit a testing organization if the testing organization meets certain criteria.

That accredited testing organization then develops and administers the crane operator tests. These are written and practical tests to certify the operators. So if you are standing in the shoes, if you're an employer and you're going to use one of these, you're going to use an accredited testing organization that will administer the tests, written and practical, that testing organization has been accredited by a nationally recognized accrediting agency. So that's Option 1.

(A change of slides.)

MR. CONNELL: Option 2 is the employer can qualify a crane operator through its own employer qualification program. So the employer here would administer the written and practical tests.

Now, the standard says what the criteria is in all cases for the written and practical tests. That's in the standard, that criteria is established. In this option, the employer is the one who is going to administer its own tests. But those tests have to be audited by an auditor who has been certified by an accredited testing organization. So that's Option 2.

(A change of slides.)

MR. CONNELL: Option 3, the U.S. military, various branches of the military do certify operators.

(A change of slides.)

MR. CONNELL: And the fourth is some states and local governments, some municipalities also issue licenses, and we recognize those.

Now, they have to meet the same criteria in the standard for the other options.

(A change of slides.)

MR. CONNELL: So looking at these four options -- I'm sorry.

MR. STRUDWICK: Are they going to have to be audited by an outside entity in order to make sure that they --

MR. CONNELL: The state or municipality?

MR. STRUDWICK: Yes.

MR. CONNELL: The standard says that the part of the state or municipality that is responsible for overseeing whatever part of the local government administers the test is the one that has to do the audit. They have to audit with reference to the criteria set in the standard for everybody else.

MR. SWANSON: Would you like to comment on the portability of these?

MR. CONNELL: Yeah, I'm going to do that right now.

MR. SWANSON: All right.

MR. CONNELL: We'll go through the chart, and we'll talk about the extent to which these are portable, and how long the certification or qualification would be valid for.

In terms of the accredited testing organization, it is fully portable, and it is valid for five years. For the employer qualification program, it is not portable, it is only valid for use with that employer. But it is also good for five years.

(A change of slides.)

MR. CONNELL: U.S. military also not portable, and the duration is whatever the branch of the military says it is good for.

(A change of slides.)

MR. CONNELL: The state or local license is only valid for the jurisdiction that the state or local entity has jurisdiction over. Again, it is good for however long they set it for, but not more than five years.

(A change of slides.)

MR. CONNELL: So that is what they look like all together. Any questions on that one?

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Is there any reason why the military has this exemption where you can set a limit for the state and local license, but not for the military?

MR. CONNELL: A limit? The reason that there is an option for the military is that one of the branches of the military did let us know that this was important for us for national defense reasons in terms of being able specifically in the Navy, for example, sometimes to get ships out when they need to. So we deferred to the Navy on that.

MR. SCHNEIDER: They can go to the hiring hall like everybody else.

MR. CONNELL: Any other questions on operator certification?

MR. MIGLIACCIO: Another reason why the military got that exemption there was it was only good while they were in the military.

MR. CONNELL: Yeah, it is not portable.

(A change of slides.)

MR. CONNELL: Okay. Safety devices and operational aids.

(A change of slides.)

MR. CONNELL: On safety devices, these are devices that we identify as, and there are not very many of them, quite frankly, but they are required and they have to be operational at all times. It is a very limited list of things. These are pretty basic things as I understand it from the committee. So it is a fairly short but crucial list

(A change of slides.)

MR. CONNELL: Operational aids. This is a much longer list, and a bit more complex. The nature of the aids and their significance varies. Basically the approach that we took was that we identify operational aids that you have to have, but if they are not functioning, you can continue to work as long as you implement specified temporary alternative measures while they're being repaired.

Now, we set some time limits on how long you have to get it repaired. But those time limits are not across the board. We divided up operational aids into several categories. Category 1, set of equipment that is the most important in this category. You have to get fixed within seven days, although there are some exceptions if you've ordered the parts and have not received them.

Category 2, you've got 30 days. So we delineated between the operational aids, ones that are more critical than others. Also there is a category of operational aids that won't be required except for equipment manufactured after 2008. So that's looking to the future. Any questions on the safety devices, operational aids area?

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: Usually when OSHA gives someone a variance on part of a standard, for whatever reason, the employer has to show that the alternative procedure is equally protected, prove that to OSHA.

Is there any consideration given to these temporary alternatives to show that they are equally effective to the --

MR. CONNELL: The committee is the one that developed the alternative measures. I believe, you know, they felt very comfortable in the use of these alternative measures on a temporary basis. So I think in effect, that finding has already been made.

MR. SCHNEIDER: I know in the tower crane section though, there are a lot of temporary alternative measures that are available, but there is no time limit given on them. Is that true?

MR. CONNELL: I don't recall.

MR. SCHNEIDER: It is on page 90 to 93 of the standard.

MR. CONNELL: I'd have to go back.

MR. SCHNEIDER: We'll get to that, I guess.

MR. CONNELL: Okay.

(A change of slides.)

MR. CONNELL: Signals. The signal person -- first of all, we specify when you have to have a signal person. That is where the point of operation isn't in full view. The view of direction of travel is obstructed, or there is some other site-specific safety concern that calls for it.

In terms of what kind of signals can you use, you can use hand, voice, audible, or what we call new signals. That is a nod, again, to developing technology.

(A change of slides.)

MR. CONNELL: Let me just say on the signals. If you use hand signals, the standard says with some exceptions, you have to use the standard hand signals that have been established in industry consensus standards. That's if you choose to use hand signals.

There are some exceptions for special circumstances.

(A change of slides.)

MR. CONNELL: Signal person qualifications. The committee felt that there is a problem out there with having signal persons who are not qualified. This was identified by some committee members as a very significant problem. So we addressed it.

We came up with two options for dealing with this issue. First of all, signal persons can be qualified either by a third party qualified evaluator, or by the employer. If the person is qualified by the employer, the employer has to use what we call a qualified evaluator. That is basically someone who has the qualifications to know whether someone knows what they're doing when they're giving a signal.

In both cases, these qualifications have to be documented. Now, if you use a third party qualified evaluator and you have that documentation, that documentation is fully portable. So all an employer has to do if a signal person shows up and they've got that documented qualification from a third party evaluator, the employer can let them go to work.

If the employer chooses to qualify the signal person itself, they can do that, but that is not portable. That documentation is just good for that employer.

(A change of slides.)

MR. CONNELL: Those qualification requirements are essentially know the signals, be competent in using them, have a basic understanding of cranes, and you've got to take a verbal or written test, and a practical test. Anything on signals?

(A change of slides.)

MR. CONNELL: Inspections. We require inspections of cranes if you modify or repair. Not any modification or repair, but significant modifications or repairs or adjustments. Post-assembly there has to be an inspection. Then we require what we call a shift inspection.

That is an inspection that begins before the shift starts, but can be completed during the shift. The monthly inspection and the annual. So as I said, the shift inspection, that's just a visual for apparent deficiencies. Monthly is the same thing as a shift inspection, except it is documented. It has the same inspection items. And then an annual, which is comprehensive. That's a much more comprehensive list, obviously, of items.

(A change of slides.)

MR. CONNELL: Who does these inspections? You can see in the chart for the modified or repaired equipment, or the post-assembly equipment. That has got to be by a qualified person. But the shift and monthly can be done by the competent. Annual, again, has to be done by the qualifying person.

(A change of slides.)

MR. CONNELL: Floating cranes and land cranes. A floating crane is where you have crane equipment that has been permanently attached to some kind of a vessel. In distinction to that, we have what we call land cranes on barges. It is exactly what it describes. The requirements are somewhat different for the two.

(A change of slides.)

MR. CONNELL: These are supplemental requirements. You have to do everything that I've mentioned in the standard, plus there are these other things you have to do for this category.

We've got some additional safety operational aids. There are some specific inspection requirements that go beyond the others for these. There is a quadrennial internal vessel inspection, and some special requirements when you work with divers.

(A change of slides.)

MR. CONNELL: On floating cranes, as I said, that's a permanent attachment. We have the list and trim requirements which you would find in the ANSI standards.

Land cranes, again, list and trim. One of the more controversial areas in land cranes on barges over the years has been how they are affixed, shall we say, to the barge. Here the standard has four options for employers to use.

The current old standard uses the term "positively secured." We don't use that term in the standard. Option 1 is physical attachment. Corralling is where you basically make a box around the crane. You can have a crane on rails to prevent shifting. There is also a center line cable system that you can use. Any questions on those?

(A change of slides.)

MR. CONNELL: There are some other areas that the committee addressed and are in the standard.

(A change of slides.)

MR. CONNELL: These are some of them. I haven't touched on them, but there are some changes from the old standard.

(A change of slides.)

MR. CONNELL: And there were two issues that the committee wrestled with and ultimately decided not to include provisions for for a number of different reasons. These are drug testing and physical qualifications. Any other questions on the standard itself before I get to next steps?

CHAIRMAN KRUL: Frank?

MR. MIGLIACCIO: There were a couple of things there when you said about what was left out of the standard, or was going to be taken out. My understanding is that hydraulic jacks were left out also, correct?

MR. CONNELL: Oh, on the exclusions?

MR. MIGLIACCIO: On the exclusions.

MR. CONNELL: Yes. Hydraulic jacking systems are excluded.

MR. MIGLIACCIO: Okay. And then when we talked about the signals, and when we talked about voice, we also said the language spoken by the operator and the signal person had to be the same.

MR. CONNELL: Yes.

MR. MIGLIACCIO: That was also brought up.

MR. CONNELL: Yes. They have to be able to understand each other.

CHAIRMAN KRUL: Kevin?

MR. BEAUREGARD: One of the items that you list up there that was discussed and rejected was physical qualifications for the operators. What was the major part of that discussion as far as why people wanted it included, and why people wanted it excluded?

MR. CONNELL: Well, I can address why ultimately the committee didn't go forward with them. That was largely because first of all, there is not an established set of physical requirements. That is things that you have to be able to do out there.

The physical requirements, the physical demands are going to vary based on the equipment, for one thing. So we didn't have something already established that we could point to to say yes, here's the physical demands that a person is going to have to meet to be an operator, so that when you go to a physician, the physician would know what to measure you against. So there is no measuring stick for a physician to use to start with. That was one big problem.

Another big problem was that you have a number of different concerns, what with the Americans with Disabilities Act requirements. There are due process requirements that would have to be met. We would have to have a pretty firm foundation to link the need to meet those physical demands with a demonstration of some correlation with accidents.

We don't have that. We do have that, by the way, for drug testing, for drug abuse, rather. But we don't have that for physical qualifications. It is not to say that it would be impossible to come up with that, but there were a number of hurdles that we were facing. The committee ultimately decided not to go down that road.

CHAIRMAN KRUL: Cheryl?

MS. ESTILL: I have about four comments. Did you have any discussion about when people started reaching the capacity of the crane? Like putting something in, and if you reach 85 percent of the crane's capacity, what steps should you go through? What kind of safety procedures? Maybe actually measuring different weights to make sure you're within the -- or, you know, extra kind of procedures.

MR. CONNELL: Yes. What you are referring to is what the industry generically calls critical lifts. We spent a fair amount of time talking about critical lifts. The main problem was we could not come to agreement on how you would define a critical lift. You mentioned 85 percent. We talked about 85 percent, 90 percent, I mean, the committee just couldn't agree on what would be the trigger for that.

Now, the committee did agree that for multiple crane lifts, that's any lift where you have more than one piece of equipment attached to that load, you are going to have to do some special planning. We have some requirements for that.

We also do have under the operations section, a requirement that a reliable means be used in all cases to assess weight. But the committee just couldn't agree on what the trigger would be for a critical lift, and that's why.

MS. ESTILL: I was thinking that, you know, some wind that day might put yourself over.

MR. CONNELL: Well, wind is a factor that must be considered in crane operation. That's in the standard.

MS. ESTILL: So they already have that. So they have to consider that anyway?

MR. CONNELL: They have to consider it anyway, that's right.

MS. ESTILL: Okay. You have a couple of times in there you mention this proximity alarm. Is there already something on the market available? One of our researchers said that he was unaware of what construction or performance criteria that the testing lab would use to decide if this proximity alarm was useful. You suggested that it would be approved by a nationally recognized testing lab as to whether or not that's really a feasible alternative?

MR. CONNELL: Yes. There are proximity alarms on the market. The standard does say that they have to meet a NRTL, the requirements of a NRTL. The point was made in one of the meetings that as you said, there are not currently criteria to measure these things by.

But remember that we are trying to come up with a forward looking document. I think it is anticipated that those are probably going to be developed. Also there is no place in the standard where you must use a proximity device.

So it is an option. It is an option that hopefully will become available. So we want to have that option in there when hopefully that criteria is established down the road.

MS. ESTILL: A couple of places you mentioned that you could have a device on the load that insulates the load from if you connected with a power line. The problem would be that the crane, if somebody were touching the crane on the ground, that they would not be insulated or protected. How did you guys --

MR. CONNELL: Well, remember that in no case in the standard do we ever rely solely on an insulating link, number one. It is part of a toolbox.

MS. ESTILL: A number of choices there?

MR. CONNELL: In the case of when you're outside the clearance distance, it is one of the menu items that you can select in addition to our set of requirements.

If you are inside the Table A clearance zone, it is required, but it is required with 11 other things. So we don't ever rely solely on it. Yes, that is a limitation of insulating links. But there are some statistics that indicate that the predominant number of electrocutions are of people touching the load, not of people either in the crane or touching the crane. It certainly doesn't solve the problem on its own, but it appears to help a lot.

MS. ESTILL: And then this is my last thing. You mentioned in the document just that workers will need to determine the line's voltage. But when you made the presentation, you said you would definitely get that from the utility company. So I was wondering if you needed to say, make sure that they do get that. Because that is not a good way for the construction company to determine a line voltage without asking.

MR. CONNELL: Well, the way the standard is set up, we have a set of requirements for lines under 350 kilovolts, and the same set of requirements, except that the trigger distance is 50 feet instead of 20 feet for the high tension lines.

The committee felt that most employers will be able to determine distinguish between high tension lines and the run of the mill utility lines that the secondary distribution lines that they run into most often.

So the committee felt that employers can handle that. Now, in terms of knowing the specific voltage, that's --

MS. ESTILL: You were at Table A, I think it was.

MR. CONNELL: Yes. You are going to have to -- you must contact the utility to find out that voltage. That's a requirement. If you use that option. But if you don't want to go through the option of getting the exact voltage, you can use our other option, which says stay 20 feet away, and implement you encroachment prevention measures to keep you 20 feet away.

MS. ESTILL: That was all my questions. Thank you very much.

MR. CONNELL: Sure.

CHAIRMAN KRUL: Scott, you had a question?

MR. SCHNEIDER: I just had a couple of other questions. You talked in the standard about relying on the competent qualified person. Yet it doesn't really distinguish what the training requirements are for the competent person the way it does for the signal person or the operator.

Was there any discussion about defining more clearly what the competent person has to -- the qualifications of a competent qualified person.

MR. CONNELL: Well, I think there was some discussion of that. First of all, I think we do have something in the training section that you have to ensure that they meet the definition essentially of a qualified person or a competent person, whichever it may be.

You're right, we don't have specification-type requirements. I think the committee felt that -- first of all, we use these terms in a lot of different areas. So they are in the wire rope section, they are in the inspection section. There is going to be different things that you're going to have to know based on if you are being used as a competent person for this, or for that. They are going to be very different.

So we did take more of a performance rather than a specification approach. We used the same definitions as OSHA has used for many years for these two terms. That is basically the thinking behind that.

MR. SCHNEIDER: I just find that in the real world, that people use these terms very loosely. Somebody is a competent person. It is not clearly defined, and as a result, it is often misused, I think. I was just curious why you propose to use signs like danger, this thing is going to sling and crunch you.

MR. CONNELL: Well, we are pretty committed to plain language. We also try to be pragmatic. That is the thinking behind that. We're trying to use good marketing here.

MR. SCHNEIDER: I had other questions, too, but I'll pass them along to you later.

MR. CONNELL: Okay.

CHAIRMAN KRUL: Tom Broderick?

MR. BRODERICK: I had two questions, or a question and a comment. Where are we now that this consensus document is in the process of undergoing some surgery by your group?

MR. CONNELL: Surgery? I don't know about surgery.

MR. BRODERICK: Tweaking?

MR. CONNELL: We're definitely not doing surgery. I don't even know that we're doing much tweaking. Let me show you our slide on next steps. Not that there is many of them.

(A change of slides.)

Where we are right now is we are doing work to support the development of an economic analysis. We may do a SBREFA review panel. That decision won't be made until after we complete the preliminary economic analysis.

We have to write a preamble, it has to go to OMB, the Office of Management and Budget. They get 90 days to review it. Only after all those things are done would we issue a proposed standard for public comment.

We'll have a comment period, there might be a public hearing. We'll then have to analyze those comments, and then in short order, we would issue a final ruling. So those are the steps. Does that answer your question?

MR. BRODERICK: Yeah, pretty much. I mean, I get a lot of questions from my constituents about how long do we -- do we have any kind of --

MR. CONNELL: Well, I can tell you that if we do, the SBREFA review process, that typically is a six-month process. OMB gets 90 days to review the document. We are in the process of doing a lot of prep work for the economic analysis.

That is going to take some number of months to complete. So those things all have to happen before you even get a published rule. So maybe that gives you some idea of what we face.

MR. BRODERICK: So it could be a couple of years?

MR. CONNELL: Well, I have put numbers on these things before and have lived to regret it. So I'll let you do the math.

MR. BRODERICK: The other thing, something that -- when I was a real safety guy in the field, something I would run up against is mostly with subcontractors that we're doing pile driving and that sort of thing where there is damage to the boom on the crane. Who gets to fix it?

I know that when we're talking about man baskets, for instance, you're talking about a certified welder welding a man basket. But under the general qualifications of maintenance and repair workers, maintenance and repair personnel shall meet the definition of a qualified person with respect to the equipment and maintenance repair tasks performed.

But there is no reference to the mechanics that would actually be working on a critical weld on a boom section.

MR. CONNELL: Well, we have a provision that says maintenance and repair personnel shall meet the definition of a qualified person with respect to the equipment and maintenance repair tasks performed.

So, I mean, that's a pretty high standard. Let me take that back. The standard is as high as called for by the task. So if it is a relatively simple task, you won't have to do much to meet the test for a qualified person. But if you are doing some complicated welding, if you are doing welding on a structural member, the scale goes up by the nature of the task.

So I think we do address the need to have some requirements for who is doing that work. But those requirements have to adjust based on the task. You don't need a highly skilled person to do a very simple task. You do need a highly skilled person to do highly skilled work.

MR. BRODERICK: I guess I still feel as though that the boom of a crane is the part of the crane that gives us the most opportunity to have a catastrophic failure.

People who are cutting out the boom section and welding in another piece should be certified welders. Just my thought on that. Because qualified, as you point out, is a pretty subjective term.

A person that is working for a company that might have been working in the shop for 20 years welding on bulldozers and that sort of thing may not have the welding skills to weld a crane boom.

MR. CONNELL: Well, I do believe that in our design section, there is a requirement that welding be done to the industry consensus standard. So if you had a weld that didn't meet that level of quality, you'd have a modification which would have to be approved.

MR. BRODERICK: What do you guys think?

MR. RHOTEN: I think you have a point. I mean, qualified and certified, there is a lot of difference. What we suggest is that if it doesn't turn out right, you'd just have to re-do it. Our industry does a lot of welding. It is not that hard to find a qualified welder. They can be identified. I would suggest, and I agree with you that certified is a better word. In case there is any doubt about who is going to be doing the repairs. I would assume that they're going to use a certified welder anyway.
MR. BRODERICK: Well, yeah, you would think. But that's the battle that I fought in the field.

MR. RHOTEN: I mean, I can't foresee anybody not using a certified welder to weld a boom. Whether you have to spell that out and make it clear, I don't really know. If the guy is qualified, why isn't he certified?

MR. STRUDWICK: Just to add the employer side, contractor side, I think we're comfortable with qualified.

MR. SMITH: Point of clarification. I mean, we can ask questions today, but, you know, we're not charged with redoing anything.

CHAIRMAN KRUL: No, and I was going to ask that question of Noah as to the next steps -- when you guys get through a couple of these steps and you'll bring it back to ACCSH for formal comments and recommendations to the agency.

MR. CONNELL: Right. At a subsequent meeting, we will ask you to give us your feedback on what you think as a group.

CHAIRMAN KRUL: Greg?

MR. STRUDWICK: Just one more question. I know we have a meeting of the stakeholders in Dallas on Thursday. Are they going to have this comprehensive overview from you? Or are they making up their own overview, or what?

MR. CONNELL: I'm sorry. Can you say that again, Greg?

MR. STRUDWICK: On Thursday, there is a meeting of C-DAC coming out of our area office, just a stakeholders get together. Are they depending on you to pass along some of this information that we all just saw? Or are they having to generate that all themselves?

CHAIRMAN KRUL: You look like you don't want to go to Dallas.

MR. STRUDWICK: No. There is one planned. I knew I wasn't going to be there, but I just wondered if they were going to be treated to such a comprehensive review as what you gave us.

MR. CONNELL: Well, I'm sure that sometime soon they're going to tell us about what they're planning on doing. Bruce, do you have anything?

MR. SWANSON: I have no idea what Greg is talking about.

MR. STRUDWICK: We got a notice out of the area office that they were going to have a stakeholders meeting on the stance. In other words, what the strategy was. I don't know anymore about it. I just thought this was very important.

MR. SWANSON: Your area office in Texas is going to have a meeting to advise stakeholders or brief stakeholders on the reg text on the C-DAC product?

MR. STRUDWICK: Yes.

MR. SWANSON: Can you get me an invitation?

MR. STRUDWICK: I'm not going to be there. I just wanted --

MR. HAYSLIP: Noah, from the viewpoint of a small public representative from the Midwest, I'd like to say bravo. Kudos to you and your staff for a job well done and your timeliness and responsiveness to industry needs. At least now we're not working from a blank piece of paper. Congratulations.

MR. CONNELL: Thanks. I appreciate it. Thanks.

CHAIRMAN KRUL: Linwood?

MR. SMITH: Just one question, being from the employer side. Most of us that are from the employer side that are on C-DAC or even on ACCSH do not represent small employers, even though we are employers. If we don't do the SBREFA process, how do we propose to get the input from small employers?

MR. CONNELL: Well, I don't want to suggest that we're not going to do SBREFA. I was just saying that an official decision has not yet been made.

Now, under certain criteria, the agency is required to do SBREFA. But even if the agency isn't required to do it under those criteria, the agency can still choose to do it. All I'm saying is the decision hasn't been officially made yet.

MR. SMITH: Do you know whether the process is required or not?

MR. CONNELL: We won't know that until after we get that economic analysis in.

CHAIRMAN KRUL: Sarah would like to make a comment.

MR. SHORTALL: Noah, for like Mr. Smith and the other new members of ACCSH, could you maybe indicate to them where in the steps that you have yet to do would be the likely time or point at which you would be coming back to ACCSH to ask for consultation and their recommendations? Can you put it within there?

MR. CONNELL: Well, it will certainly be before we publish in the Federal Register. It will also be before we go to OMB.

MR. SHORTALL: Okay.

CHAIRMAN KRUL: Any other questions for Noah? Noah, as always, thank you for a comprehensive and well delivered presentation.

MR. CONNELL: Thank you. My pleasure.

MR. SWANSON: Let me ask. It was implicit in something that Broderick said before he left the room. How much change, and I understand neither you or anyone else in this room understands exactly how it is going to come out. But do you anticipate significant changes to the reg text as it exists today, and as it will appear in the proposal?

MR. CONNELL: No. No, underlined, bold.

MR. SWANSON: Thank you.

CHAIRMAN KRUL: A pretty definitive no. Thank you again.

MR. CONNELL: My pleasure.

CHAIRMAN KRUL: Steven, can I ask you, do you need a couple of minutes to set this up?

MR. CLOUTIER: Please.

CHAIRMAN KRUL: All right. Listen, why don't we take a very brief five-minute break. We only have Steven's presentation, and then the public comment period and then we're really done for the day. So let's not drag this break out too long.

(Whereupon, there was a brief recess.)

CHAIRMAN KRUL: I would like to introduce Steve Cloutier with the Directorate of Construction who is going to give us a presentation on confined spaces.

CONFINED SPACE PRESENTATION

MR. CLOUTIER: Mr. Chairman, thank you. I appreciate the opportunity to be here, members of the committee, I appreciate your time commitment. Having spent a number of years with this astute body, I appreciate the time and the fact that you're sitting in the chair and trying to move forward.

(A showing of slides.)

MR. CLOUTIER: Today I would like to talk about and provide an overview on the confined spaces in construction. When this topic first came about, some of us had more hair, some of us had darker hair. This thing has been a ping pong ball back and forth and around within our shop for a number of years. It has been here at ACCSH before there was certainly a work group. Mr. Rhoten is not in the room right now. He also had darker hair as well back when we were doing this.

So that said, I'd like to move forward. We're going to talk about confined spaces in construction. You all know who I am. We're off and running. If I can get my machine here to work.

(A change of slides.)

MR. CLOUTIER: This is a draft regulatory text. Currently we are talking about it is going probably going to fall underneath Subpart AA 1926.1200. That is subject to change, but that is where we've got it stuck right now. Bill, what I was telling people is this has been around for a number of years. Both you and I had darker hair, and I probably had a few more on top of my head.

I also had forgotten. George Kennedy is here in the back. He spent an awful lot of hours many years ago on this particular topic. But anyways, it is confined spaces. We're going to stick it, as it stands right now, under Subpart AA 1926.1200.

(A change of slides.)

MR. CLOUTIER: When we talk about a confined space, and many of you in this room have worked in them, you're familiar with them. But for those that are not, underneath the introduction section we talk about a confined space is a space large enough so employees can enter and perform work. That is kind of a given.

It has limited and restricted means of entry and egress, and is not designed for continuous occupancy. You've heard that definition time and time again. You have seen it around. There it is in black and white, and we've kind of tied it together this time.

(A change of slides.)

MR. CLOUTIER: When we look at the proposed standard, the confined spaces include a scope, a definition section, there is an information exchange component, classifications of confined spaces, we address training requirements, monitoring, entry, rescue and record keeping. Those are the nuts and bolts.

(A change of slides.)

MR. CLOUTIER: The classification options include two. There has been lots of discussion going back and forth within the industry from all sides around the table with those of us that come from a construction background working in the Directorate of Construction, working with our standards, riders, our program analysts out in Noah's shop. We've had lengthy discussion, and it still continues to be a discussion point.

As you look at this slide, the first one talks about permit required spaces. Underneath there, there is the permit required confined space, and a continuous system permit required confined space. I hope I don't have to say that real fast, because I think I would get tongue-tied.

On the non-permit spaces, there is a controlled atmosphere, and there is also the isolated hazard confined space. We are going to define those in a minute, so if you'll bear with me, please.

(A change of slides.)

MR. CLOUTIER: The standard applies to those engaged in construction work and who have confined spaces at their job site.

(A change of slides.)

MR. CLOUTIER: The standard does not apply to Subpart B, which is the excavation standard, because the excavation standard has specific requirements in it. It does not apply to Subpart S, your underground construction, caissons, coffer dams, or the compressed air component of that. It also does not apply to diving, because diving, again, has their own particular requirements. It is a unique component in the industry.

(A change of slides.)

MR. CLOUTIER: Examples of confined space, we tried to go to the think tank and identify a number of confined spaces. This list is not all inclusive, but we think we've captured a number of them. Bins, boilers, pits, man holes, tanks, incinerators, scrubbers, concrete pure columns, sewers, transformer volts, HVAC, ducts, storm drains, water mains, precast concrete and other preformed man hole units, drilled shafts, enclosed beams, vessels, digesters, lift stations, cesspools, silos, air receivers, sludge gates, air preheaters, step up transformers, turbines, chillers, bag houses, and/or mixers and reactors. Again, it is not all inclusive, but here are some examples, but not limited to.

(A change of slides.)

MR. CLOUTIER: We felt very strongly to enlarge the definition section. So it is probably three and a half pages right now of numerous definitions. They have been added for clarity. So if you read through the proposed text and you came up with a word, you could go back to the definition section and we would have it defined.

Clarity is a key point there. Again, we tried to make it comprehensive and all inclusive. I'm confident we may add a few more words in this particular section.

(A change of slides.)

MR. CLOUTIER: In talking about the permit required confined space, that particular confined space is a hazardous atmosphere that ventilation will not reduce to and maintain a safe level. It is inwardly converging, sloping, or tapering surfaces that could trap or asphyxiate a worker. It has an existing or potential engulfment hazard or physical hazard. Those are the components. That is the definition of the permit required confined space.

(A change of slides.)

MR. CLOUTIER: Noah is making a point here. Let me go back. After each one of those, I need to stress or. So the first bullet or, the second bullet or, and then the last bullet. So again, it is either, and then or, and then really converging on existing or potential engulfment hazards.

(A change of slides.)

MR. CLOUTIER: The continuous system permit required confined space. Again, that gets to be a big long mouthful there. It is part of an contiguous with a larger, confined space. If you think of some of the larger construction projects that have multiple confined spaces located in the work activities, you find these every now and then.

Again, it is part of and contiguous with a larger, confined space. An employer cannot isolate it from a larger, confined space. It is subject to a potential hazard release from a larger, confined space that would overwhelm personnel, protective equipment, or any hazard controls that are in place.

(A change of slides.)

MR. CLOUTIER: Controlled atmosphere confined space contains no physical hazards or only isolated physical hazards. You can use and use as ventilation alone to control the atmospheric hazards at safe levels. Again, that's the controlled atmosphere confined space.

(A change of slides.)

MR. CLOUTIER: The isolated hazard confined space is a confined space in which the employer has isolated all physical and atmospheric hazards. So those are the definitions to think about as we go through.

(A change of slides.)

MR. CLOUTIER: The key elements of the standard include a work site evaluation and information exchange. We know the folks in the field talk to one another, but there is a requirement in here to make sure that there is an evaluation, and that we share the information. There is an exchange of that information.

There is a requirement for atmospheric testing and monitoring. We have done that in the past. Again, it is back in this standard. There are training requirements as there are in many of our standards. We have entry permits, and we discuss that. We talk about the initial tasks, we talk about entry preparation, we talk about what needs to take place during the entry.

We discuss typical equipment, we talk about the rescue, we talk about the rescue service, we talk about how you terminate an entry, or entry termination. Then finally we talk about record keeping requirements. (A change of slides.)

MR. CLOUTIER: The worksite evaluation information exchange and coordination has two key components. One, it talks about the controlling or host, and the other talks about what the contractor is or isn't going to do.

If there is a controlling or host at site, they need to provide the contractor with the location of any known confined space. Hazards that affect the confined space, and any previous classification or classifications and precautions and procedures that were implemented.

That's the responsibility of the controlling and the host employer. On the other side of the fence, the contractor provides to the controlling host information about the hazards present, or developed and procedures followed during the entry up to or into the confined space.

Again, when we're sharing information, there are some requirements going on on who is going to do what. This is under the worksite evaluation information exchange and coordination component.

(A change of slides.)

MR. CLOUTIER: Entry permits. The permit requires that you identify the confined space that you're going to enter. What's the purpose? Why are you going to go into that space? Why are your employees, why are your workers going into this space?

The date, and the authorized duration of the entry permit. You have to list any hazard information, including physical and atmospheric control methods, monitoring results, what type of equipment and procedures are going to be used, a list of all authorized entrants, whoever the current entrant attendant is, as well as the entry supervisor.

Again, we're documenting some information on this permit. The permit also has a place where you have to identify the rescue service and the phone numbers that you're going to use, or a way you're going to contact this rescue service. I'll talk a little bit later on in this presentation about the rescue service. So that's on the permit.

(A change of slides.)

MR. CLOUTIER: Initial task. Things that need to be thought about and take place. First of all, the employer is going to have to notify the employees that are going to go on the task, and what their responsibilities are. You have to post danger signs at or near the entrance. Here are a couple of examples.

Danger, permit required, confined space, authorized employees only. Or danger, permit required, confined space. So it is an either/or. Dan?

MR. MURPHY: Do those signs all have to be in English?

MR. CLOUTIER: Well, you know the battle that's there. We have to be able to communicate our expectations and make sure the workers understand that communication. So if you're working with an all English workforce, yes. If you're working with a non-English speaking workforce, again, the agency feels you have to be able to communicate.

Also in the initial task you need to prohibit entry and limit entry. You need to talk about training and coordination, rescue preparations, and what type of safe termination procedures are in place.

(A change of slides.)

MR. CLOUTIER: Preparing for the entry. You've got to prepare and post an entry permit. First the contractor and the crew is going to have to remove the entrance covers. You have to guard the holes and openings. You have to ensure that there is a form of safe access.

Again, you have to assign the entry supervisor and attendant. You have to designate those authorized entrants, and of course the employer is required to provide and maintain the equipment.

(A change of slides.)

MR. CLOUTIER: During the entry, physical and atmospheric hazards must remain isolated and controlled. Atmospheric hazards, if there are any, must be monitored. Monitoring must be continuous unless the employer can demonstrate that periodic monitoring is sufficient. So there is an option there.

The employer is going to have to demonstrate back to the agency that periodic monitoring is sufficient. Of course those procedures, and monitoring results are documented on that entry permit. So there is a documentation component there.

(A change of slides.)

MR. CLOUTIER: Examples of confined space equipment. These have been around for a number of years. But you've got atmospheric and testing, monitoring equipment, forced air, mechanical, ventilation comes in many forms.

Communications. We said communications, and there is all different types of communications that are used in confined spaces. Personal protective equipment, lighting ladders and rescue devices.

(A change of slides.)

MR. CLOUTIER: Under the atmospheric and testing and monitoring section on testing or monitoring atmospheric hazards in a confined space, the employer must test and monitor in the following order.

Again, this is nothing new. We have been doing this for a number of years. The industry has been doing this. The first thing that must be tested and monitored for is oxygen. Second would be combustible gases and vapors. Third would be for any toxic gases or vapors. The fourth is kind of a catchall, is there anything else that may or may not be there that you want to check? Of course the caveat at the bottom of that slide says "equipment has got to be properly calibrated, and it must be direct reading."

(A change of slides.)

MR. CLOUTIER: Training requirements. Must ensure that each employee entering the confined space acquires the knowledge, skills, and can demonstrate proficiency necessary for site performance of his or her duties specified in the standard.

You must train employees about the hazards of attempting a rescue. We've all read these horror stories over the years where workers have been in a confined space. One worker goes down, another worker goes to rescue, he or she goes down. The rescue team gets there, doesn't have the right equipment and goes down.

So there is some exposure there, potential exposure there. So we want to make sure we train employees about the hazards of attempting a rescue. Then we have a retraining component. If you find there is a problem with your training that has been ongoing, any prudent employer is going to want to go back and do some retraining, but there is a retraining component there.

(A change of slides.)

MR. CLOUTIER: The rescue. Rescues are initiated when an unplanned condition, sign, or symptom occurs. The attendant alerts the authorized entrants, in other words, the outside attendant communicates to the folks that are inside that confined space. The attendant must inform the employer of the event.

The employer ensures that the rescue service is summoned. The rescue service will come and either do a non-entry or an entry-type rescue. That is the rescue component. Yes?

MR. RHOTEN: Was there any discussion on a time frame about how soon the emergency rescue workers should be at the site? How fast they can respond to that site? I'm just suggesting that somebody look down, for instance, we had an accident --

MR. CLOUTIER: You dial 9-1-1, and 30 minutes later, somebody shows up?

MR. RHOTEN: Well, you don't need a rescue team after about ten minutes. So is there any discussion on how long, or how close that rescue team should be to the site?

MR. CLOUTIER: I'm going to look to Noah.

MR. CONNELL: I think we took the same approach as in the general industry standard, which is it has got to be soon enough to do some good.

MR. RHOTEN: Which basically means they need to be on the job site. You can't call anybody that is not on the job site and expect to rescue anybody. It looks good on paper. As a practical matter, just writing down that you should notify the rescuers if there is a problem, you've got to call them, and they have to bring somebody to the site, it is done. You may as well -- it won't do any good, in my opinion.

MR. CLOUTIER: Point well taken.

MR. RHOTEN: It is something to talk about, you know. It gets the contractor off the hook. He calls 9-1-1, but it is not going to help anybody.

(A change of slides.)

MR. CLOUTIER: Terminating the entry. The employer must implement a procedure for safely terminating any entry operation. Of course the entry supervisor has got to terminate the entry and cancel the permit. The entry permits must be retained by the employer for a minimum of one year.

(A change of slides.)

MR. CLOUTIER: Rescue criteria. This will help you out a little, Bill. Under 1926.1212, we talk about the rescue service. Members must be trained in the proper use of personal protective equipment and rescue equipment. They must be trained in confined space rescue techniques, must be trained in basic first aid and CPR. Must be able to respond to the call in a timely manner. A little closer.

MR. RHOTEN: Well, I guess what raised my question was the phone number.

(A change of slides.)

MR. CLOUTIER: Retrievals greater than five feet require a mechanical device. Must be informed of any physical or atmospheric hazard. The rescue service can be an internal or external.

MR. RHOTEN: I'd just suggest that we don't let it be external. It should be ten minutes.

MR. CLOUTIER: Point well taken. Thank you.

(A change of slides.)

MR. CLOUTIER: Record keeping requirements. The employer is required to keep a copy of the standard on site, maintain entry permits for one year, maintain training records for the length of the employee's service with the company, verification documents, the length of the confined space, job, and available upon request should the agency happen to come out and make a visit to the site.

(A change of slides.)

MR. CLOUTIER: We've got two appendices. There is an Appendix A, and Appendix B. Appendix A is a cross-reference addendum that will be provided in the document. Appendix B is a sample entry permit form and sample verification, and a document form there. So again, these are just samples making available to employers that don't already have their own may want to change theirs.

(A change of slides.)

MR. CLOUTIER: Appendix A lists several other construction standards under 29 CFR 1926 with confined space provisions that may overlap. So that helps you real fast, it gets a guidance document. It is going to eliminate the need for employers to do an extensive page flipping back and forth.

(A change of slides.)

MR. CLOUTIER: B provides that sample entry permit, includes two unique samples of entry permits. I don't know how unique they are, but there are two good samples there. It provides a sample of verification document that meets the OSHA draft of Confined Space Proposal requirements. Both samples can be modified to fit almost any confined space worksite.

(A change of slides.)

MR. CLOUTIER: We have a typical flow chart here that is coming up on the screen. You start at the top. Does your worksite fall underneath the confined space standard 1926.1202. If it is yes, you drop down and go to your boxes. It is a check and balance yes or no type of thing. I know it is hard to see on the screen, but it is there. It goes all the way through and refers you back to where you want to be.

(A change of slides.)

MR. CLOUTIER: And we've come to a section right here. I've got a program analyst that comes to work in Noah's shop, and he wants to talk about a typical scenario and throw that out on the table and show you the difference between the old 1910 versus the new 1926 standard. So this is Brian Eagle.

1910 VERSUS 1926 STANDARD

MR. EAGLE: Just to give kind of a brief introduction, one of the purposes behind the standard is to make it easier to understand and follow for people who may not be familiar with confined space. They come onto a site, they have never dealt with it before.

If anybody has taken a look at the general industry standard, it is a lot of words in what we found to be a confusing order, and what other people told us they found to be a confusing order.

If you're familiar with it, you spend ten years, you learn where everything is. But if you're coming to it fresh, it might be a little confusing. Just to give you a heads up, I tried to take it as if I never knew a confined space and was coming on fresh. I came out to about 28 different steps following the general industry's. When you apply ours, you are about 15 steps.

So a lot of the material is the same, a lot of the requirements are the same. But one of the goals, what we really wanted to do was just make it easier to follow. So what I'm going to try to do is take you guys through a comparison of the two.

(A showing of slides.)

MR. EAGLE: So let's start out. We're talking about, and when you deal with this, you have to assume if OSHA adopted the 1910 standard as a whole and just slapped the 1926 label on it, how would it be applied, versus what our draft standard is right now.

So the scenario we have is a host employer is going to hire a general contractor to supervise construction work in one section of a sewer system. Multiple subcontractors, they are going to be doing manhole work, box work, your company is going to be installing some taps. What goes on?

CHAIRMAN KRUL: Brian, let me just stop you there.

MR. EAGLE: Sure.

CHAIRMAN KRUL: Host employer, you're talking the owner of the facility?

MR. EAGLE: Yes. There is a difference between the host, where in construction you might have a host and then a general contractor, and under them, you might have your subcontractors. As I'm going to try to get to, that is one of the problems with just taking general industries.

(A change of slides.)

MR. EAGLE: Now, under 1910.146, you have to evaluate the workplace, determine if any spaces are permit required. One of the problems with this standard, with 1910, is it jumps right into permit required spaces. In general industry that's okay because there is more knowledge about your space. Whereas in our standard in construction, you have people coming to a site, they don't know what the space is. They don't know if it is going to be permit, if it is not going to be permit. There is just not as much history to the space.

So we put out explicit procedures in two sections to try to decide do you have a confined space? What hazards are there in that space?

MR. CONNELL: So one of the things that Brian is saying in the beginning here is under 146, although you will not see the words in the general industry standard that says you must evaluate the work space to see if you have a permit required space, in order to comply with 146, you are going to have to do that.

So the requirement is implicit, but it is not spelled out. In our draft standard, we have spelled it out as a clear step. Really a first step.

MR. BEAUREGARD: I have a quick question on that section. When I read the proposed language, it says the controlling employer or the host employer is required to obtain the information in, A1 says the location of each space that the controlling employer actually knows is a confined space.

My question, coming from a compliance program, is that as you know, we either show employer knowledge, or the employer should have known of the condition. By putting that terminology in there, did they actually know? I can see that that is going to create some problems. We're going to run across employers who say, well, I didn't know about that condition.

MR. CONNELL: No, that was intentional. We are intentionally not requiring them to meet the "should have known" requirement. We're saying look, if you're a controlling employer and you do in fact know about certain of these spaces, we want you to give that information to yourself.

We're not saying that the controlling employer has to go out and do everything in this standard that their subcontractor has to do. We're not. We're saying we're not requiring it. All we're saying is if they do in fact know certain things, give that information to the --

MR. BEAUREGARD: And my question would be are you going to have some sort of caveat in your multi-employer worksite policy that specifically addresses when you are dealing with confined spaces that you're not going to enforce that section of the employer worksite policy?

MR. CONNELL: I think it dovetails perfectly with the current policy.

MR. EAGLE: We'll do a little more explanation as we go along. So one of the benefits is in our standard, in the proposed 1926 standard, you are going to know early on what hazards you have, and how you are going to classify your space.

With the current 146, the 1910 standard, again, you start out with this assumption that it is a permit required space, you have to develop and implement a written permit program, and you are acting under this assumption without any real knowledge.

It is only later in the standard that you start doing some investigation. One of the benefits in ours is again, early on you're going to know what you're dealing with.

(A change of slides.)

MR. EAGLE: Now, in the 1910 standard, again, it is assumed to be a permit required space. There is an ability to classify down. If you read the standard very, very carefully and dig through it, they actually have multiple classifications very similar to what we're proposing.

One of their sections actually starts out with, if you give me one minute, that an employer may use the alternative procedures in a section for spaces with just a hazardous atmosphere. So right there is already setting out, you have this permit space, now you have this subpermit space, so it is treating it a little differently.

Throughout you'll find another couple, a non-permit space, and even deeper buried in, there is a sentence to the situation we have here, which is continuous system space. So it really is buried in their standard, but there are multiple classifications.

So what you would have to do in following 1910 is you are analyzing, you start out as a permit, and then you have to decide am I going to classify it down, do I meet these requirements? Where as with 1926, you don't have to do these multiple levels of investigation. You have decided right up front based on your analysis, what am I dealing with?

(A change of slides.)

MR. EAGLE: Now, this is a little long. But this gets into what we were talking about, the information exchange and employer coordination. One of the key differences between general industry and construction is the fact that in construction, you're going to have a host, a general contractor, and multiple subs working on a site.

The general industry may not have as many people. What we really want is information exchange. We make it very explicit in our language in the 1926 language that the general contractor or the host only has to provide what they know. There is no requirement for them to get down into a site unless they have their own employees in there, to get any of this information.

If they know it, if they had it from previous experience or they learned about it, all they have to do is share it with the contractors. The contractor is then free to take that information and evaluate it as they see fit.

So we don't have a situation here of them being forced to take this as the gospel. We are not getting into contract language. We are just trying to provide contractors with as much information as possible.

On the 1910 side, all you have is an exchange between the host and a contractor. There is just no mention of a general contractor. We find that to be a very big difference.

CHAIRMAN KRUL: Walk me through, because I'm getting lost in this, what the employer, the controlling employer, not the owner of the facility, but if it is a construction manager or general contractor in charge of this multicraft site. Let me just give you one specific example that I'm familiar with.

A waterproofing contractor is going to come on site. He'll be working in what is determined to be a confined space. The materials that those employers/employees of that contractor, the materials they will be using are deemed to be flammable.

MR. EAGLE: Okay.

CHAIRMAN KRUL: Whose responsibility is it to make sure that there are no flames in or around that confined space, and make sure there is no welding, cutting, or grinding where sparks would be generated, and there is a potential for an explosion or a fire? That's where I'm lost on this. And I'm using one. There are many, many, many subcontractors who are going to be on a site that may be working in these so-called confined spaces. It is hard for me to understand. Is it the construction manager? Is it the general contractor?

MR. EAGLE: Let me just break in here for a second. We have a requirement that subcontractors are going to tell the general contractor what they find out. Hey, I'm working in a confined space, and I'm going to be doing this.

We assign a general contractor who has the best overall view of the situation the responsibility to coordinate between all the subs. So if you are going to be doing welding in a site, they're going to tell you hey, the guy who is also going to be working in there may have some flammable materials. He is going to work to coordinate between the two of you to make sure nothing is going to happen.

Under the 1910.146 standard, it is not necessarily clear who coordinates. What is says is that the host must coordinate with a contractor if those two employees are going to be working together, and then contractors have to kind of coordinate with each other.

What we found on construction is the general contractor is going to have the best overall view of the situation. We want them to be able to coordinate between all the parties to make sure in your situation, nobody blows up.

MR. CONNELL: I mean, the simple answer to your question is that the general industry standard really doesn't address the typical construction scenario. It focuses on a host because it was designed to deal with, for example, a factory, and a factory owner that brings in a subcontractor to do some work.

We are talking about totally different scenarios is what is typical in construction. So there are two elements here. One, the one you're asking about, which is the coordination function, and there is a coordination responsibility on the general contractor.

Two is the information exchange. Again, it is different. The general industry standard focuses on the host. We're saying that the general contractor has the knowledge. They've got to share that knowledge with these subs.

CHAIRMAN KRUL: And vice versa.

MR. CONNELL: What do we say about subs?

MR. EAGLE: At the end, we want the contractors and subs coming back and providing information to the general contractors. Again, this is where the generals later down the road can then use that information and provide it to any future contractors coming on site. So there is that reciprocal nature to it.

So again, what you'd have here is an information exchange in the 1926 standard between the host, controlling, and all the subcontractors. But to make it very clear, we don't want and we don't require the general contractor to go digging around in any confined space on his own, unless he has his own employees down there.

(A change of slides.)

MR. EAGLE: Some of the procedures, and Steve did a much more thorough job of running through it, so I don't really need to repeat it, is you're going to post your danger signs, you're going to identify hazards.

But what I wanted to point out, at least in the example I start out with which is you're working in a sewer, the general industry does mention a continuous system. It is one line buried in all their text. All they say is that you have to continuously monitor that portion of the sewer where your employees operate.

One of the things we're concerned about is what happens if up the line you have a flash flood? One of the biggest differences, and one of the key differences in this requirement, in the draft 1926 is the requirement for an advanced warning system. Just something up the line to let your employees know hey, you're in trouble, get out of there.

I know that there is some concern that construction has these four classifications. Well, that one piece that I just gave you is all that separates a continuous system permit required space from a normal permit required space. So the two are almost identical. We just want advanced warning for people working in these types of spaces where you can't isolate a potential engulfment hazard.

(A change of slides.)

MR. EAGLE: Again, the training and identification of people working on the site is going to be the same. You're going to have attendance, entrants, supervisors, so the two standards are very similar.

(A change of slides.)

MR. EAGLE: One of the differences, though, that I want to point out is in the rescue provisions. Under 1910, you have to evaluate rescue services for their ability to respond to summons in a timely manner, and its ability in terms of proficiency with rescue-related tasks and equipment to function appropriately while rescuing entrants. That's a mouthful for me.

We tried to make it simpler for the construction. You have to evaluate can they respond to a summons in a timely manner, and then you have to give them access to apartment space, or a simulation of apartment space so they can practice.

We really want to make it so that whatever rescue service you go with, whether it be internal or external, there is not a complex evaluation. People generally, we found for construction, may come on site, do a quick task, and then they're gone. To take all of this time to evaluate a rescue service, and we're not saying rescue's not important, it is. To take all this time, it may end up taking them longer to pick a rescue service under 1910 than to actually do the job.

(A change of slides.)

MR. EAGLE: Both standards require that you review whatever entry program you go with once a year. Documentation, again, is very similar. One of the key differences, though, that we want to point out is that under 1910, you must have a written program. Under our standard, we've got to give you the option. You can maintain a copy of this standard, or you can have a written program. So we just wanted to create a little more flexibility for people. Again, both of them, you're going to retain that permit for a year.

(A change of slides.)

MR. EAGLE: Employee participation. Under the draft standard, 1926, we want employees who are going to enter confined space to observe inspections or atmospheric testing and monitoring. That is what they are going to be affected with everyday. You want your employees to be able to go to the site, see that a test was just done, know that it is safe, and go in.

1910.146 seems to imply that all affected employees must be consulted on development and implementation of all aspects of the permit program. It is this greater involvement. That could be a serious burden to the small business, or to a large business who then has to get every one of its employees.

Whether it is a check system on every single step for people operating under general industry isn't very clear, it is just something that we in construction try to focus employee participation on what is going to affect them the most. That's the testing, and that's the monitoring.

They want to know that the space they go into is going to be safe. Those are just some of the differences that we're trying to bring out by doing a separate construction standard for confined spaces.

As I said to start with, it is difficult sometimes when you know a standard as well as many of you do to step back into the shoes of somebody who has never dealt with confined space. But if you did that and tried to read the two, you'd find that the draft construction standard is much easier to follow. We laid it out in a very simplistic manner. It takes you step by step. Where general industry is a little more reading intensive. Thank you.

CHAIRMAN KRUL: Brian, could I ask you to perhaps by tomorrow provide the committee with copies of that?

MR. EAGLE: Sure. No problem.

CHAIRMAN KRUL: Questions? Frank?

MR. MIGLIACCIO: I have a question. You said that on the one, the new one for construction, you feel as though you wouldn't want a written policy?

MR. EAGLE: I didn't say I wouldn't want it written. We wanted to give flexibility to employers. So if they have a written, that satisfies the requirement. But if they'd rather just go with a copy of the standard and fill in the blanks, that would satisfy too. So it is kind of give and flex. Flexibility is key in our mind.

CHAIRMAN KRUL: Scott?

MR. SCHNEIDER: A couple of questions. In the section 2612.16, which is on controlled atmosphere in confined spaces. You talk about having another power source to power the ventilation systems. Is there any requirement, or should there be a requirement or some sort of back-up power source in case that power source fails?

MR. EAGLE: Where are you?

MR. SCHNEIDER: 1216.A, page 19. Essentially ventilation is required continuously, controlled atmosphere spaces.

MR. EAGLE: So you're talking about like a back-up system?

MR. SCHNEIDER: Is there a back-up requirement for the power source for this ventilation so in case there is a power failure, you're not going to be having someone down there without a ventilation system?

MR. EAGLE: Well, one of the things that we hope to -- and we understand time is always of the importance here. When you have a change such as that where your atmosphere is going to change, your power goes down, you have a spike in your power, that's one of the things that is going to call for immediate exit. Everybody is out of the system. Even if the space is fine and the air is just to make it cooler, you are out of the system in a situation like that.

I don't think there is a specific provision for a backup. It hasn't really been mentioned before. One of the concerns may be just how many backups should you have. It is something for us to consider whether we can put in a requirement.

MR. CONNELL: But I think the key is that any change like that triggers the requirements to leave. You are now no longer meeting the terms of the requirement.

MR. SCHNEIDER: Right. Just a question of how quickly that can be accomplished, and would you need something like this.

The other question I have is on 1218.F at the end, it is talking about the employer has to make these documents available on request to the Secretary. Are they also available to employees and their authorized representatives?

I know under the record keeping standards in general, a lot of records like OSHA logs are also available to employees and their authorized representatives.

MR. EAGLE: I guess one of the requirements is that employees will be able to inspect the record. When you're testing, when you're monitoring, employees always have access to those records.

One of the things we found just from going out to the site is employers tend to keep their records right on the confined space. It is going to list on this date I tested, these were my readings, so it is going to be right there for employees going in and out to check.

In terms of extended access, like a year down the line can they come back and look at things?

MR. SCHNEIDER: Well, I mean, they are kept for a year, right?

MR. EAGLE: Right.

MR. SCHNEIDER: So I guess over the course of that year, they could look back at them?

MR. EAGLE: Right.

MR. SCHNEIDER: But is there a requirement for posting the permits right at the confined space? I wasn't sure whether that was.

MR. EAGLE: Yes. The entry permit must be posted at the space.

MR. SCHNEIDER: I was also curious, in terms of the exclusion for excavation, I know there are some excavations that are considered confined spaces. So what is the thought in terms of excluding all excavations from the standard, as opposed to allowing some of them to be covered, those that really are confined spaces?

MR. CONNELL: Well, it really amounted to what was the size of the project that we were going to endeavor to accomplish. One of the possibilities was to have a standard that would apply in all situations.

Complexities involved with distinguishing between what excavations would have to apply and which ones wouldn't, that's a huge undertaking right there. Yeah, it certainly was an option to apply the requirement to all underground construction and all excavations. But I think the thinking was that you've already got some protections in both of those standards. Where the real gap is is in these other kinds of scenarios. That is where we ought to focus our attention.

MR. SCHNEIDER: I had one other. Relating back to what Dan was saying in terms of signs, it seems like one of the purposes of the sign is to keep out people who obviously you don't want going down there.

It is really for the public's benefit, or other workers in the area. Having it in other languages, the predominant languages of people in that area that are working in that area would seem to make some sense.

It is not required here. I know we do require it in, like I think the asbestos standard does require that in other languages. Thank you.

CHAIRMAN KRUL: Greg, did you have a question?

MR. STRUDWICK: I just want to I think probably mention something that we all are thinking anyway. None of us are very favorable -- we don't like change very much. Once we get into a process and we are understanding it and applying it and that kind of thing, to add additional acronyms and those kinds of things, give us a little bit of a shiver.

Because we have been trained in this, in the construction industry, since 1993. So it is going to take a while to absorb and look at that. I know as far as NUCA is concerned, we have waited for the new standards to be kind of finalized so that we could go back and re-do the training that originated in 1993.

Our permit that we use instead of the permit that is in the standard now, the 1910 permit addresses

everything that you guys just said. So it is not like it is impossible to understand all of that. It is just that we tried to make sure that it is a very simple permit versus non-permit.

Assume everything is a permit, because if you don't, then you're going to expose yourself to the hazard of assuming that it is not, and then you can't see, hear, feel, smell, any of your senses are not going to let you know that there is a possibility of a dangerous or hazardous situation based on normal appearances.

So it is going to take a while for us to ingest some of this. We are going to come back. This program was so refined compared to that document that he is reading off of. There was a little dance, because we were all a little concerned. So I think that when we do finally ultimately end up getting to the public comment, that there may be some adjustments we can make that will satisfy all of us. But we're still nervous.

MR. EAGLE: I think you are going to find one of the things at least is you're going to find that the draft standard is really designed to give people options. If you want to treat everything as a permit space, under the draft standard, you're still going to be able to.

But we really want to design a flexible, easy to understand manner that one, somebody coming out to a site who has never dealt with confined spaces, they are going to follow it with ease, they are not going to be confused. Two, somebody who is trained and operated under 1910 for ten years is going to be able to pick this up very quickly. It is not really that many additional requirements. It is not going to be foreign to them.

As you said, as you get into the little nuances and read it, you are going to find yeah, I recognize most of this. So I think you are exactly right, the more you read, the more you'll become comfortable with.

MR. STRUDWICK: Well, and anything that is subject to interpretation is subject to proposed misunderstanding, okay? We want to limit that as much as possible, but not only between us or internally. We certainly want to protect the employees. But from the standpoint of a compliance officer coming down and assessing and agreeing, we want to keep it as simple as possible.

CHAIRMAN KRUL: Was there a question, Linwood?

MR. SMITH: Yes, a comment. Just to piggyback on what Greg said. I have been with the company I'm with 16 years. They had a confined space program before I went to work with them. They still have a confined space program. It is better now since I'm with the company.

But anyway, when we go to a plant site or a facility enclosed by a fence, we don't have any choice. Most owners require us to follow what they already have in place, including their permit. They don't even accept a generic permit, so there is protocol on that.

Where you run into difficulty, I think, is the municipality jobs where you're going outside of the highway and you're laying water line, sewer line or something, and you've got some man holes or some type of underground construction and you have limited access. Those, we do have the option to institute approach.

Also coming from North Carolina, basically North Carolina has enforced the confined space policy on construction for many years. I don't know how they do it across the country, but that confined space policy is based on what is in 1910 at the present time.

The only question I guess I would have, and I guess I just want to point out that I hope nationwide that there aren't many contractors out there that are doing confined space work on a regular basis that don't have some type of program. That would just blow my mind if that's true.

I think most contractors do have, or make a confined space effort. It is a little difficult to get used to change, and accept something coming up different. But the only comment I would have is at an industrial plant site, inside of a fence, whatever, you've got a general industry duty standard in effect for that owner, and then we're going to propose a construction standard for the contractor. Do we get in a Catch-22 as to whose standard is applicable?

MR. CONNELL: Well, there are so many substantive similarities between the two standards, that unless you're dealing with a sewer, as you describe it in the normal course of your business, if you followed 1910 and you weren't dealing with sewers, you would probably almost automatically the way you administer your program, you would almost automatically be following what we're saying here.

But we I think have identified some areas where the general industry standard, which was not designed for construction, doesn't deal with some very common real life construction scenarios. We are very concerned about that.

MR. SMITH: But do you see any conflict between working inside a plant as far as that owner being under general industry standards and us working o his property and being under construction standards?

MR. CONNELL: No. I would say in my mind, our 1200 standard is basically general industry, plus a few things that are specifically designed for construction. It is not that we're conflicting. I don't think we have things that conflict with 1910. We have a few things that add on to 1910 to be construction-specific.

MR. KALINOWSKI: It seems to me that you -- I think there is always a conflict when you have a construction and a general industry standard that might have the same situation and the requirements are significantly different. I think Linwood raised that issue.

I think one thing you've done here is you've identified, some issues that could be improved, right? And you made those changes here. So why not take this opportunity to try to make these and go back to Steve Witt and say come on, we need to change general industry. We've found ways to make it better.

I think it would make it easier. I know it's a long-term thing, but that is something I think you ought to be thinking about. You've identified areas. You know, this doesn't work quite right. It'll make it more difficult for the general industry employers, but it will make it easier for the construction employer. Why don't we make it easy for everybody?

CHAIRMAN KRUL: Go ahead, what's your name.

MR. RHOTEN: You've got total recall, too. To get back to what Linwood was saying, you know -- for instance chemical plants or the atomic plants, the owners have got the programs in place. I appreciate what you said, but it is not going to conflict with them.

In fact, I wouldn't imagine it is going to change anything inside those plants if I read this right. Standard Oil is not going to change their confined space entry program because we have a construction standard.

The part I think I like about it is you are getting outside of that plant to the areas that weren't addressed. We've had problems there on new construction sites. We've lost our members on new construction sites where there wasn't any owner per se. We had Argon Alliance that was dispatched in a ditch, and a member jumps in.

This will address those areas that I'm, to be frank, more concerned about than I am with what is going on now in the federal chemical plants where you've got real responsible owners. So I'm in favor of this standard for that reason.

But I don't see a conflict, I don't see the owners of the facilities turning over the jurisdiction to this standard that they're already operating under. This will expand outside those areas, I guess. Am I understanding that correct?

MR. CONNELL: Yes.

MR. CLOUTIER: Thanks, Bill.

MR. RHOTEN: I remembered what I was going to say too.

CHAIRMAN KRUL: Yes, you did. Very well, as a matter of fact. Anyone else? Scott?

MR. SCHNEIDER: I was just curious. What is the time table for this in terms of, you know, where are you in that long, lengthy process?

MR. CONNELL: We are planning on issuing a proposed rule in March. March, 2005.

MR. SCHNEIDER: So this has already gone through the SBREFA process?

MR. CONNELL: Yes.

MR. SCHNEIDER: Thank you.

CHAIRMAN KRUL: Okay. Steven, Noah, Brian, thank you very much. Very good presentation. We appreciate you coming.

Anita Drummond, you are here?

It is time for the public comment period. I have two public commentors, and we will recess for the day afterwards. While they are getting to the table, for the committee members who have copies of the minutes that were distributed, please look them over for accuracy, those of you what were here. We'll take a vote on them tomorrow.

MS. DRUMMOND: I'll be very brief.

CHAIRMAN KRUL: Anita, would you state your name, title, and company, for the record?

MS. DRUMMOND: Yes. Of course.

PUBLIC COMMENT PERIOD

MS. DRUMMOND: I'm Anita Drummond. I'm Director of Legal and Regulatory Affairs with Associated Builders and Contractors. The primary reason I came, and the only reason I came was to alert the committee to a legal case that was published at the end of July of this year in the U.S. District Court. It is called the New York Times versus the U.S. Department of Labor.

It is a convoluted case, and the reason it is important is this. Under the Freedom of Information Act, the New York Times asks OSHA to provide the lost work day rates for the 13,000 work sites that they had identified as high hazard locations. This was a 2001 activity.

The Agency did an excellent job of pointing to the four-year requirements to protect confidential business information and its own regulations that indicated that it had to go through a process of getting permission from these companies to get this information to make it public.

The court kind of went all over the board. But in the end, the court said no, you have to spend your resources providing the lost work day rates for these 13,000 work sites to the New York Times.

The case's implications, I believe, for the Agency's efforts on compliance of agreements with outside organizations could be significant. I think it could have a chilling effect on a company's interest in signing a partnership when they have information that could become publicly available by simple FOIA.

It is entirely possible this becomes an outlier case, and that courts narrowly construe it and don't follow it. It only has precedent for that district for the U.S. District Court in New York. But I am very concerned about it. What I did was attach, I just went on the website and printed out a recent partnership that was signed by IBEW, the Electrical Transmission Distribution Construction contractors and their related trade associations.

There are implications within this where an OSHA representative sits on the steering team that evaluates excessive amounts of data for the company, which is outlined in the appendix. I put some asterisks just to highlight some things.

Identify and prioritize the target areas that are causing these, which sounds innocuous in theory. But if all of this is backed by raw data, the company does not want to expose, they are going to establish best practices. They are going to post results, and it sounds like about what has resulted from their best practices. If they have failures, that becomes public information.

I'm not saying that to a degree this information isn't public, but where that line is, what is confidential information, what does it have an impact on the competitiveness of a company, does come into play.

All I am bringing this to your attention, and I intend to bring it also to the advisory committee for safety and health general industry because it would be good to know what steps the agencies are taking in these partnership arrangements that could assure companies that there are measures to protect their private data.

I'll use the partnership issue. For us, we have partnerships where we have on a local chapter level where there will be a group of contractors in the partnership. That aggregate data is provided to the agency.

It is unclear to me what court might say well, how do you know this aggregate data? We want the specific raw data that concluded this aggregate data. That's a worst case scenario, but it is something I'd like the agency to define how to protect private company information for those that are the good actors and are trying to participate in these partnerships.

VPP is a little different, but maybe not. Maybe they can go farther. But VPP companies do make their information public to a great degree. But there may be underlying data to that that could become available through the FOIA Act because of some construing of the statute.

It is a little case. A few of us are watching these cases, and it really concerns me for our own partnership, as well as the Agency's real effective efforts to try to partner with industry.

So it is something that I wanted to raise to your attention. I know partnerships and VPP will be discussed tomorrow. So it may be an issue for there as well. That's a conclusion.

CHAIRMAN KRUL: Thank you, Anita. I just off the top of my head, I would ask for guidance from the Directorate. But I would think that this document ought to be provided to the solicitor for legal evaluation rather than this committee, look at it from a legal perspective.

MR. SWANSON: Sure.

MS. DRUMMOND: And the other things is VPP challenge, which we are a partner on, is going to have companies that are providing information to ABC, as well as its other partners, and the question becomes is that data we retain also subject to FOIA?

So it could potentially have implications, or it could simply end up being an outlier case that is not relied upon. Thank you very much.

CHAIRMAN KRUL: Thank you, Anita.

Mr. George Kennedy? If you would as well, sir, state your name, your title, and who you are working for, for the record.

MR. KENNEDY: I will. First off, I'd like to thank you, Mr. CHAIRPERSON, and the members of the committee for giving me an opportunity to, as usual, put my two cents in.

My name is George Kennedy. I'm the Vice President of Safety for the National Utility Contractor's Association. When I first read this confined space draft, I was a little concerned. Then as I read it the second time, I felt it was more in line with the general industry, and I like that it tracks it.

I think Steve, having worked on a group with Steve Cloutier on the confined space work group years ago, I think he did a great job of taking our comments into consideration, and putting this draft together.

I do have a few minor comments. I have eliminated most of the comments I was originally going to make when I asked to speak this afternoon. One thing is when Steve gave the presentation, it was easier to understand what was coming out of this standard, and what was expected, than when I first read it.

We've had the definition of permit and non-permit for years now. We've been living with it. It is something that is consistent with the ANSI standard, with the general industry standard, and we'd like to see it remain that way. I'd like to still see permit versus non-permit, and maybe put subclassifications of the continuous system and the permit required confined space in a controlled atmosphere under non-permit and the isolated hazard under non-permit, similar to what Steve did in his presentation.

I think it will help contractors to better understand what is expected of them, and I think it will avoid confusion when we do work in those general industry plants. As Linwood mentioned, people go into those plants and they are working under the general industry requirements of that particular plant or operation.

Then when we're in the field and we try to teach people, we are still teaching the same thing, permit versus non-permit. I went through definitions. I saw some conflicting definitions. One of them that Steve is aware of that I know he has already talked to Bruce about, and I think they're going to clarify, is I've always had a problem with the term "periodic." Nobody knows what they mean by periodic in terms of how often they want us to test.

If something happens down the road and they come out and do an investigation and somebody had died, or there was a fatality involved, they are going to say well, we did periodic testing. Having taught this program for many, many years -- I developed Nucleus program originally for confined space ten years ago.

In our classes, I teach instructors, and I teach individually. I have asked at my classes, well, what does periodic mean to you? You go around the room and you ask 20 people what periodic means to them, and you ask five or ten of them, and you get everything from 15 minutes to once a day, to every morning and the afternoon and the evening before we go home.

So there is a confusion with that term. I'd rather just see you come right out and say continuous monitoring. If it is a permit required confined space, make it a requirement to continuously monitor. We are not dealing with the old instruments of the past, the big boxes with the batteries that die in a few hours.

We have modern instrumentation that have lithium batteries and all kinds of other new batteries that last anywhere from 8 to 12 hours. Therefore, continuous monitoring is not unreasonable. Yes, some of the contractors will not like the idea, but I have told my classes, and I have told the members of our association, if you're doing confined space entry, you might as well recognize that a monitor is a tool of the trade now.

So continuous monitoring I think is a better term, and it is not as confusing. It will not lead to litigation, it will not lead to OSHA writing citations for somebody who some OSHA officer said, well, you're not doing it periodic enough, because you're doing it every half hour instead of every 15 minutes. In his opinion, 15 minutes is the way it should be.

So that is one of the definitions. A couple of others just with hazards, the term "hazard" and "protected hazard" and things like that, they are just kind of a little conflicting in some ways. But I'm not real concerned about those.

Going to rescue. Bill mentioned rescue. I have taught rescue classes as well, confined space rescue is one of the classes we run now and then for our members and their safety directors. I have worked with some of the leading rescuers in this country. Some top notch USAR team leaders and other people like that in these training programs.

Rescue is a major problem. Unless you have somebody standing by every minute while you're in a space, and even when you do, you're really not going to have much chance of pulling somebody out of a space that has gone totally into a bad atomospheric situation. Even if they are standing right there, it is still going to take them 10, 15, 20 minutes to gear up, well, first off, to evaluate the situation, then gear up and get ready to make the entry.

I think we need to put the emphasis on prevention. And rescue, yes, external rescue when they can hook them onto a harness and a lifeline and have a retrieval device present right there, even if it is set up or not. If we have a person hooked up, we can pull them out. That's a different story.

But when it comes to going into the space, it really to a great extent, I hate to say it, doesn't matter when they come from the local rescue squad, the fire department, which some are trained and some are not, or whether they're standing by.

In the general industry situation, it's different. In a plant, they have the ability to train their people, have a rescue team somewhere nearby, and maybe they can extracted a person quickly enough to save his life.

They can also work with local fire departments. So I'm glad to see that this standard takes out that requirement to go evaluate fire departments. We've mentioned this to our employers, and they've tried to do this. It is just not going to happen. You call up a local fire department and say, can we come and evaluate you? They'll say yeah, well in six months, we're going to do training, come on over. That's not going to do you any good.

So I think on the rescue side, I kind of agree with Bill. You almost have to let it go.

MR. RHOTEN: Well, I didn't suggest that.

MR. KENNEDY: It sounded like you did. We need to look at that as to whether that option is really going to be realistic. Like the gentleman who was sitting here, I don't recall his name, he mentioned we are in and out quickly.

MR. RHOTEN: If you can't get there, you should at least tell the guy you put in the hole that if something goes wrong, he's dead.

MR. KENNEDY: I agree. Get out.

MR. RHOTEN: Just do that. Don't go in there. Give him the option.

MR. KENNEDY: Well, in most cases, at least in construction, in most of the cases, not all, of course if you're doing a big power plant or something, that's different. There, you could probably reasonably have a rescue team, and I would think a good contractor would.

But the average utility job or municipal job where they are going in and out of a sewer, clear a space to make a connection to do something simple, they are in and out so quickly that by the time you're geared up, or have rescuers, and you only have two or three man crews out there sometimes, it is just not going to be realistic to do a rescue.

MR. RHOTEN: Well, in the case of the sewer, I'm certain the guy could get out of there.

MR. KENNEDY: In most cases.

MR. RHOTEN: But I'm not certain if there was no -- the sewer, maybe some confined spaces are different, but I don't --

MR. KENNEDY: Well, you usually have the attendant standing by, and hopefully the guy is hooked up to that retrieval system, and you're going to pull him out.

MR. RHOTEN: But if the attendant is just looking down a hole, than he might as well watch TV. If he doesn't have some mechanism, a tripod or a strap, a lifeline on the guy to get him out of there, the attendant is completely useless.

MR. KENNEDY: I agree with that, and I don't think we have a problem with having that equipment available.

MR. RHOTEN: Again, my feeling would be to encourage more access to rescue teams.

MR. KENNEDY: Rescue team, yes. Well, I think to a great extent, even though a lot of the fire departments haven't trained their people yet, a lot of them are training them day by day. But their response time is the problem.

MR. RHOTEN: They are too far away.

MR. KENNEDY: In many cases.

MR. RHOTEN: to have a phone number in there is like a false sense of security. For a contractor to say well, if something went wrong, I've got a phone number. So morally I'll feel better and I did my job. You need to know right up front, that phone number is useless. That's all.

CHAIRMAN KRUL: Greg? Do you have a question?

MR. STRUDWICK: We've had extensive conversations with local fire departments and all of that. The fact is that in the current standard, in the general industry standard, what it does do is it makes you focus on the possibilities and prepare for those situations, whether that is a few minutes or 30 minutes, or the type of problem that you might think that might exist inside. At least there is a proactive approach to some type of retrieval or rescue at that point in time. It has been on a case-by-case basis. But it is there.

We have been down to talk with the local fire department. We do that in Subchapter S, too, we're supposed to qualify the rescue team. They are supposed to be within 30 minutes of the portal.

But I hesitate not to leave it in the context that it is already in, because it does stimulate the plant side of the entry. And in most cases, you know, in all my 34 years of doing this in sewers and in really permit required spaces that we've ultimately been able to eliminate the hazards or control them, we've only made maybe 10 permit required confined spaces as it exists in 1910.

The rest of them we were able to engineer controls. But in every case, in every case, we have a rescue at least, at least mentally, and in our programs that we created, it is considered. We have the ability to either retrieve that person with a harness lifeline lanyard or implement our own rescue team on site at the time.

MR. KENNEDY: Well, Greg, you know, you and I have trained together, and we have done these things together. I do agree with that. You've got to have a plan.

Whether you're going to have a rescue team standing by for a simple rescue, if it is in fact a permit required confined space is the question.

MR. STRUDWICK: Texas Instruments has implemented that since they had a fatality situation occur there. It has been very successful. Their own team follows around the contractor. They don't leave any rock unturned. But the fact is that the way the standard currently is structured is that we have to focus on it.

Do you know what it costs to put a rescue team on standby on a daily basis? Ten grand, minimum. Ten grand, minimum. So there is a lot of incentive to engineer out the problem. Control it prior to --

MR. KENNEDY: Well, that's why I say prevention. I think we need to focus on prevention. I really do.

CHAIRMAN KRUL: All right. One more question, and then I'll let Mr. Kennedy finish his comments.

Bill?

MR. RHOTEN: Just a comment. I agree with you, we should concentrate on prevention.

MR. KENNEDY: Right.

MR. RHOTEN: But in regard to having rescue people qualified, all you really need to do on a job is to train, you know, our pipe fitters can be trained to do that without much investment. All they would need is the equipment, identify who they are. When somebody goes in a confined space, they're there.

You don't have to be a firefighter to go down a hole and put a strap on somebody and pull them out. That is not required. You don't have to be a policeman. You can be a laborer, a carpenter, they can be trained to do that. It is just a matter of somebody having the will to want to do it that way.

MR. KENNEDY: That's the key there, is the will and the training to do it. Because there are people who will crawl in. If you do crawl into a pipe to rescue somebody, it isn't as simple as just putting a rope around his legs, or tying a strap on him.

We've had to drag them out, and we've done the drills. It is a lot more difficult than that. It requires quite a bit of training.

MR. RHOTEN: I'm sure that it does. We've got guys going in there now trying to pull them out without any training.

MR. KENNEDY: Yeah, that's the bad part, too.

MR. RHOTEN: So I don't think in most cases, the construction workers couldn't be trained if the contractor had the will to do it and the tripod or whatever is necessary on the site when he went in the hole. Generally, they are not going to be in confined spaces that long, and they could go back to their normal duties when they are finished with the job.

MR. KENNEDY: I don't' want you to misunderstand me. I'm don't' say we shouldn't have a rescue plan or the ability to do it if it is available, yes. To go out, reach out, and say we have to go like the general industry, which they didn't say, and evaluate --

CHAIRMAN KRUL: Mr. Kennedy, why don't you finish with your comments? I mean, this is going to come back before the committee, and we can make recommendations then.

MR. KENNEDY: That was one thing that was just a little concerning. And I actually like the way it is written in here, so I'm fine with it the way it is.

Again, some of the things that lead to confusion. Again, place emphasis on prevention. And as a suggestion, I noticed in the general industry they have a checklist in here. I don't' see a checklist. It would be nice if we had a checklist in here. The checklist is something I think people should use.

We tend to build a checklist into our permits so they go down the permit and they get to the point and they make a decision at that point as to whether it is permit or non-permit. That's it. Thank you.

CHAIRMAN KRUL: Okay. Thank you very much, Mr. Kennedy.

The committee is going to stand in recess and go off the record right now. We're going to re-adjourn tomorrow morning at 8:30.

(Whereupon, the meeting was adjourned, subject to reconvening Wednesday, October 20, 2004 at 8:30 a.m.)

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a hearing before the Federal Advisory Council on Construction Safety and Health, held on Tuesday, October 19, 2004, were transcribed as herein appears, and this is the original of transcript thereof.

  _______________________________

Lisa Dennis

Certified Verbatim Reporter