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U.S. Department of Labor
Occupational Safety and Health Administration


Advisory Committee on
Construction Safety and Health

Volume 2

Frances Perkins Building
200 Constitution Ave., N.W.
Rooms N-3437 - AB&C
Washington, D.C. 21210

Friday,
January 29, 1999

The meeting was reconvened, pursuant to recess, at 8:45 a.m., STEWART BURKHAMMER, ACTING CHAIR, presiding.

APPEARANCES:

EMPLOYER REPRESENTATIVES

STEWART BURKHAMMER
Vice President & Manager of Safety and
Health Services
Bechtel Corporation
9801 Washingtonian Blvd.
Gaithersburg, MD 20878
(301) 417-3909 (W)
(301) 208-0636 (Fax)

STEPHEN CLOUTIER
Vice President
Safety/Loss Prevention Manager
J.A. Jones Construction
J.A. Jones Drive
Charlotte, NC 28287
(704) 553-3574 (W)
(704) 553-3195 (Fax)

FELIPE DEVORA
Safety Director
Fretz Construction Company
P.O. Box 266784
Houston, TX 77207-6784
(713) 641-6777 (W)
(713) 641-4676 (Fax)

ROBERT MASTERSON
Manager, Safety and Loss Control
The Ryland Group
11000 Broken Land Parkway
Columbia, MD 21044-3562
(410) 715-7240 (W)
(410) 715-7909 (Fax)

OWEN SMITH
President
Anzalone & Associates
12700 Foothill Blvd.
Sylmar, CA 91342
(213) 877-8291 (W)
(818) 837-040 (Fax)

EMPLOYEE REPRESENTATIVES

STEPHEN D. COOPER
Executive Director
International Association of Bridge, Structural
& Ornamental Iron Workers
Suite 400
1750 New York Avenue, N.W.
Washington, D.C. 20006
(202) 383-4829 (W)
(202) 347-1496 (Fax)

LARRY A. EDGINTON
Director of Safety and Health
International Union of Operating Engineers
1125 17th Street, N.W.
Washington, D.C. 20036
(202) 429-9100 (W)
(202) 778-2691 (Fax)

WILLIAM C. RHOTEN
Director of Safety & Health Department
United Association of Journeymen & Apprentices of
the Plumbing & Pipe Fitting Industry of the
United States & Canada
901 Massachusetts Avenue, N.W.
Washington, D.C. 20001
(202) 628-5823 (W)
(202) 628-5024 (Fax)

STATE REPRESENTATIVES

HARRY PAYNE, JR.
Commissioner
North Carolina Department of Labor
4 West Edenton Street
Raleigh, NC 27603
(919) 733-0359 (W)
(919) 715-5629 (Fax)

DANNY EVANS
Chief Administrative Officer
OSH Enforcement Division of Industrial Relations
Nevada Department of Business and Industry
400 West King Street
Suite 200
Carson City, NV 89703
(702) 687-3250 (W)
(702) 687-6150 (Fax)

PUBLIC REPRESENTATIVES

JANE F. WILLIAMS
Safety & Health Consultant
4901 E. Kathleen Road
Scottsdale, AZ 85254
(602) 569-6330 (W)
(602) 867-9266 (H)
(602) 867-4338 (Fax)

MICHAEL BUCHET
Construction Division Manager
National Safety Council
1121 Spring Lake Drive
Itasca, IL 60143-3201
(630) 775-2531 (W)
(630) 775-2185 (Fax)

FEDERAL REPRESENTATIVE

MARIE HARING SWEENEY, Ph.D.
Chief
Document Development Branch
Education and Information Division
National Institute for Occupational Safety
and Health
4676 Columbia Parkway
Mailstop C-32
Cincinnati, OH 45226
(513) 533-8339 (W)
(513) 533-8230 (Fax)

COMMITTEE CONTACTS

BRUCE SWANSON
(202) 693-2020, Ext. 32489 (W)
(202) 693-1689 (Fax)

ROBERT J. BIERSNER
SARAH SHORTALL
Office of the Solicitor
Department of Labor
(202) 219-7711, Ext. 154 (W)
(202) 219-7147 (Fax)

PRESENTERS

DICK SAUGERC
HUCK GORDON
STEPHANIE PRATT

NIOSH
Division of Safety Research
Morgantown, WV

VIRGIL CASINI
NIOSH
Team Leader
Fatality Assessment and Control Evaluation Program

ALSO PRESENT

RICHARD K. PFAU
Safety Director
Donohoe Construction Company
2101 Wisconsin Avenue, N.W.
Washington, D.C. 20007
(202) 625-4186 (W)
(202) 333-5394 (Fax)

I N D E X
PAGE
APPROVAL OF MINUTES FROM PREVIOUS
MEETING
293
DIRECTORATE OF CONSTRUCTION REPORT
By Mr. Swanson
300
COMMENTS ON DRAFT SANITATION STANDARD 304
POWERED INDUSTRIAL TRUCK TRAINING
By Mr. Sauger
386
NATIONAL INSTITUTE FOR OCCUPATIONAL
SAFETY AND HEALTH
A Report on Preventing Vehicle and Equipment-Related Occupational Injuries in Highway Construction Work Zones
By Ms. Pratt
418
PLANNING NEXT MEETING OF ACCSH 440
PUBLIC COMMENT 449
P R O C E E D I N G S

APPROVAL OF MINUTES FROM PREVIOUS MEETING

CHAIRMAN BURKHAMMER: Good morning. I want to start out this morning with the minutes from the previous meeting of October 7th and 8th. You've all had an opportunity I hope last night to review the minutes. If you will get them out, we will go over them.

VOICE: I move we accept them.

CHAIRMAN BURKHAMMER: We have a motion to accept the minutes.

Is there a second?

(No response.)

CHAIRMAN BURKHAMMER: No second to accept.

VOICE: Didn't I second the motion?

(Laughter)

CHAIRMAN BURKHAMMER: All right. We have a second.

Discussion?

Mr. Edginton.

MR. EDGINTON: As I indicated yesterday, I thought that the minutes improperly reflected what the charge of Marie and myself was with respect to silica. We did not think that a silica in construction workgroup --

CHAIRMAN BURKHAMMER: What page are you on?

VOICE: It is difficult because there are no page numbers.

MR. EDGINTON: There are no page numbers. So --

VOICE: The fourth page.

CHAIRMAN BURKHAMMER: The fourth page, yes.

VOICE: The second paragraph.

MR. EDGINTON: The second paragraph.

CHAIRMAN BURKHAMMER: Okay. Go ahead.

MR. EDGINTON: It was our understanding that we had been tasked to collect data that was available with respect to industry practice. And once we had done that or attempted to do that, we would have discharged our obligation.

CHAIRMAN BURKHAMMER: How would you like to amend the minutes to reflect your concern?

MR. EDGINTON: That in response to OSHA's request, that my motion was that in response to the request from the Solicitor's Office that we would initiate efforts to collect data from the construction industry and report that back to this committee.

CHAIRMAN BURKHAMMER: Marie, are you in agreement with that?

DR. SWEENEY: Yes, I am, Mr. Chairman.

CHAIRMAN BURKHAMMER: All right. Larry, will you mark up the change and hand me a marked-up copy. We will accept that as a change in the minutes.

MR. EDGINTON: Yes.

CHAIRMAN BURKHAMMER: Further discussion?

Felipe.

MR. DEVORA: Mr. Chairman, on the next to the last page, it is just -- I think we corrected it in the last minutes.

And I think we didn't make the correction correctly, but the first paragraph, it says "Devora point not in error and the July minutes for evidence was incorrectly reported as co-chair."

The previous time, they had Jane on there. And I asked that we correctly reflect that it is Danny. So we'll try it again. Danny is my co-chair. Jane is not.

VOICE: So noted.

CHAIRMAN BURKHAMMER: Correction noted.

Further discussion?

(No response.)

CHAIRMAN BURKHAMMER: I have some discussion on the minutes that I want to talk about before we approve it. It doesn't reflect changes, but it might.

On the second page, about half way down the first paragraph, you talk about the formation of the workgroup guidelines, the task force that Jane chaired and Steve is the co-chair of.

And the last sentence there, "Williams volunteered to submit a draft to the recommendation guidelines at the next ACCSH meeting".

We have made a decision we are not ready to do that yet. There is a lot of issues involving that task force that Jane and Steve are co-chairing and that Bruce and I are members of. We don't want to come back with half or incorrect responses to the committee.

So Jane has agreed that she has done a lot of work on this. And we are going to take her work. And Bruce and I are going to review that. And then, we are going to get together prior to the next meeting and have some solid responses for that.

The fourth page in under the silica revision, Michael is not here, but he agreed to chair and Bob Masterson chair the Salt Lake City Construction Advisory Workgroup which was a spin-off of that computer presentation that was made at the last meeting.

Bob, I would like you to get with Michael on this and see if we can't get something done before the next meeting on this.

MR. MASTERSON: We have already began with it.

CHAIRMAN BURKHAMMER: Okay. All right. Maybe, we can get a report at the next meeting. Thank you.

The seventh page in I think, I'll have to count. The seventh page in where it starts in the middle, a little bit down in the first paragraph where Marc Freedman voiced an idea that he presented to the workgroup the day before to develop a one-page public service announcement to reinforce the idea of construction safety, specifically highlighting the foremost prevalent hazards and the idea that they are very simple and direct things and we can begin to prevent them.

The one-page announcement will say here is what employers are doing, call a toll-free phone number, get a simple, easy-to-read guide, etcetera.

And Charles indicated that he liked that idea and that it was a partnership possibility and he would like to pursue that.

Bruce, have we got anything on that? Can we look into that before you --

MR. SWANSON: Sure.

CHAIRMAN BURKHAMMER: All right. Bruce will take that as an action. And hopefully, we will have a response on where we can go with that prior to the next meeting.

The second to the last page, halfway down the center paragraph, Steve Cloutier raised the question about stipends for board members in light of the increased work load we've been asked to carry.

That is an issue that we deferred to Jane's task force. And that is currently being discussed.

And we will have a response to that at the next meeting, Steve. We are not prepared at this time to answer that correctly so. We will defer that to the next meeting.

That's my only comments to the committee.

We have a motion, a second to approve. With no further discussion, all in favor approving the minutes of October 7th and 8th, signify by saying aye.

VOICES: Aye.

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: Approved.

Now, we will start out this morning with the Directorate of Construction Report.

Bruce.

DIRECTORATE OF CONSTRUCTION REPORT
By Mr. Swanson

MR. SWANSON: My report is relatively brief and simple this morning because of what you heard from the Assistant Secretary yesterday in spelling out where we have been and what we have done.

And a couple of things I would like to go back and underline that he raised. One is that he shared with you how standards writing has been reorganized in OSHA and how health standards and safety standards have in effect been consolidated. And now, you have 10 work teams within that element, within that office, new office.

Construction was left out of that reorganization. The construction office in the standards shop is within DOC.

We have 10 professionals in that shop working on standards. Charles agreed to leave us freestanding and to operate as an independent entity.

He also emphasized that what DOC had been doing over the last couple of years is what he intended to see reflected in his other shops.

So I really thank him for the endorsement and vote of approval in leaving us separate.

That office has recently had some changes which I'm sure within the past, we hired three new people back in September and October. And Noah, although he has been with us on detail before, has of last fall joined us permanently.

So we are looking for great things out of that shop. More importantly to me, my boss is looking for great things out of that shop.

And he laid down a rather -- he promised you folks a rather ambitious schedule all in '99. And it is a standard of accomplishment that OSHA in any of its shapes or forms over the last 20 years has not produced one final standard, you know, per 10-member team.

And that is Charles Jeffress' expectation. So it is going to be an interesting year for that shop.

But he promised you a final. And you will have it. He promised you a proposal. And you will have it. He promised you an ANPRM on fall protection. And you will have it.

So that is where we are on that.

On the other side of my shop in construction services, we have been going for at least two years with a series of temporary heads in that shop.

And Dave Morgan was there on a long-term assignment. And then, recently we have put a couple of people in there on 30-day temporary assignments. And we have done that three times now.

But within the last months, we have hired a permanent head for that shop. And it is a gentleman, Tom Marble, Area Director, out of Kansas.

He has been with OSHA since its inception almost. Twenty-three years I think Tom's been here. He has been in four different regions, has endorsements by four different regional administrators. He has filled just about every compliance slot in the OSHA hierarchy.

And he recently received one of Vice President Gore's Golden Hammer Awards for a partnership that he formulated with the oil and gas industry out in Kansas.

So I really looking forward to him joining us in approximately the middle of -- well, it is not approximately. It will be the 15th of February he will be with us. And I'm looking forward to having a permanent member in that shop.

We have -- those of you who spent any time looking for us on the plaza level know that we are no longer there.

Steve, we are no longer. And we are up here on the third floor again, new quarters.

And let me see. I think those are the only structural changes that we have had. And that is my report this morning. I would be happy to answer any questions that you've got about DOC or what we have been doing.

CHAIRMAN BURKHAMMER: Thank you, Bruce.

MR. SWANSON: Okay.

CHAIRMAN BURKHAMMER: Any questions?

(No response.)

CHAIRMAN BURKHAMMER: Discussion?

(No response.)

CHAIRMAN BURKHAMMER: Hearing none, thank you.

COMMENTS ON DRAFT SANITATION STANDARD

CHAIRMAN BURKHAMMER: Next on the agenda is the sanitation draft that was presented yesterday.

We will start with Mr. Cooper who I assume will introduce this as a motion.

MR. COOPER: On our draft sanitation standard provided to this committee yesterday, it really surprised us that the advisory committee had a few questions on the standard proposed.

And we have our committee, the two co-chairmen reviewed some of the concerns of the committee prior to the meeting.

I, of course, did not talk to every advisory committee, Mr. Chairman. So there could be some other concerns.

CHAIRMAN BURKHAMMER: Okay.

MR. COOPER: And I at this time do not know what those other concerns might be. If there is other committee members like, for instance, Mr. Payne, I didn't talk to him.

CHAIRMAN BURKHAMMER: Okay.

MR. COOPER: But I do implore upon you, Mr. Chairman, that we would like to get this process today and offered onto OSHA.

CHAIRMAN BURKHAMMER: Well, once it's offered into a motion and seconded and discussion is ongoing, we can hear from other members as to any changes they wish to discuss.

MR. COOPER: Excuse me.

CHAIRMAN BURKHAMMER: Once you offer it into motion and it is seconded and we are in the discussion phase, members can offer any comments to you they wish.

MR. COOPER: I offer -- make a motion that the committee adopt the proposal as written.

MR. MASTERSON: I second.

CHAIRMAN BURKHAMMER: We have a motion to adopt as written and a second. With that, we are open for discussion.

I think probably the easiest way and best way to do this is we will start with Jane and go to each member and ask that member if they have any comments, Mr. Cooper, if that would be easier.

Jane.

MS. WILLIAMS: I am aware of the discussions. And I think Steve has some verbiage that he will be presenting to you, but I would like to stress the importance of this issue to the health and well being of all of our workers and their safety.

We have worked on this extremely diligently, researched tons of information and people to ensure there was no conflict of interest by any representation on the committee to the best of our abilities. They are questions that have been asked forthright.

So I would encourage this committee to look at this issue as a very important one and move it today.

CHAIRMAN BURKHAMMER: Thank you, Jane.

MS. WILLIAMS: Thank you.

CHAIRMAN BURKHAMMER: Steve, Jane said you might have a couple of changes that you would like to offer.

MR. COOPER: You would like to --

CHAIRMAN BURKHAMMER: Would you like to do that now?

MR. COOPER: You would like to propose changes before the committee members --

CHAIRMAN BURKHAMMER: Well, if they see the changes, they might change their discussion.

MR. COOPER: I can say this, and again I did not talk to every committee member this morning after they read this diligently last night before they rested.

There are some concerns on page 3 of 5 on the concerns of the employer providing transportation. It is written, proposed by the workgroup that the employer shall provide transportation, the toilet facilities where toilet maintenance access is restricted.

There again, Jane and I as the co-persons did not talk to everyone on the committee, but there has been a proposal by some this morning on the committee prior to opening of our committee that that may be too restrictive as to the employer.

There has been a proposal that the language should read as follows: The employer should provide transportation to toilet/washing facilities where facilities are unavailable. That was one of the proposals.

CHAIRMAN BURKHAMMER: Did everybody get that change?

(No response.)

CHAIRMAN BURKHAMMER: Proceed.

MR. COOPER: That does not mean that other members on this committee accept that language.

CHAIRMAN BURKHAMMER: We fully understand that. Do you have any other changes you would like to insert?

MR. COOPER: Did you want, Mr. Chairman, to open up discussion on this or keep on going?

CHAIRMAN BURKHAMMER: Keep on going with the changes. And then, we will proceed.

MR. COOPER: On the same page, there was concerns on why food handling was involved in this proposal.

And I think my answer is that food handling was in the previous regulation approved by OSHA and by all parties thereof.

It is a pretty good question. And I talked to Larry Edginton which is from the Operating Engineers on my left.

And one of the concerns in that area of food handling was the bush jobs, the jobs that I think everyone who are normally in Alaska and other places like for instance, the pipeline and other areas, not necessarily only in Alaska.

In that areas, there is a pretty good question on why food handling should or should not be in there as it relates to job sites that are camp sites is the term.

We talked about to get this process through this committee and on towards the standard that maybe food handling is not proper to be in that area.

I think that there may be just a few people on the committee that think it is. But we -- the other concern and the last concern that I am aware of is there is in the old document to which we incorporated into the proposal which we would like to keep in there on page 3 of 5, temporary sleeping quarters.

And that comes from -- the language comes from the old standard. Anyway, temporary sleeping quarters when temporary sleeping quarters are provided they shall meet the requirements of 29 C.F.R. 1910.142.

That as far as I know is the extent of the comments, concerns that I have heard, Mr. Chairman, on this matter.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper. Basically, on this last one, then you're saying we are deleting, quote, 1926.51[d], quote, all the way down through, quote, 1926.51[de], quote. And temporary sleeping quarters becomes D. Is that correct?

MR. COOPER: Down to temporary sleeping quarters.

CHAIRMAN BURKHAMMER: Right.

MR. COOPER: Which then would be (d) I believe.

CHAIRMAN BURKHAMMER: Does the committee have those changes?

(No response.)

CHAIRMAN BURKHAMMER: Felipe, discussion.

MR. DEVORA: I am thinking about what Mr. Cooper just said. I only have a problem with a word like "shall" and "should".

And my question is, where you're saying on that line about limited work access sites, the employer should provide transportation, my question is, is that speaking to the point of, you know, you should, but if you don't, so what?

MR. COOPER: Well, I think we all know what "should" and "shall" means. Shall means you will do it. And should means it would be very nice if you would do it.

My own position as co-chairman is that "shall" should stay in there. I know some people are concerned about that.

MR. DEVORA: Okay.

MR. COOPER: That's just semantics, but does it speak to it?

MR. DEVORA: The other question I have here -- again and this is putting on my workgroup hat again and on the multi-employer, we keep talking about employers again.

But my take on the sanitation issue of providing toilets, there again that's a controlling contractor issue.

I think in most job sites, you know, I'm not certainly at every one of them, but the way I've normally seen it in my industry is that the general contractor or the controlling contractor usually provides these in general conditions, in the general conditions part of their work, as far as mobilization and providing toilet facilities and things like that.

And so the only thing that I would add is that I don't know that we want to include controlling employer anywhere in this, but that we are real specific if there is only one employer, the employer-employee relationship, that they have to provide that and they are not going to, you know, lean on someone else outside the scope where they are working.

I guess what I'm saying is if an owner hires someone to do that, to do that work, that particular employer that's out there is the one that is supposed to provide the toilet not some construction manager or someone else that has that in their general conditions.

You're shaking your head, Larry, but I think you know what I'm talking, what I'm trying to say anyway.

So that would be my only recommendation that we make it clear somehow who is responsible for providing these facilities.

And maybe, we don't need to clarify that. Maybe, employer-employee is fine. The employer will, shall, or should or whatever provide these facilities.

CHAIRMAN BURKHAMMER: My take on that would be that contractually if a general contractor is providing facilities it would so state contractually.

And if it doesn't, then I think Mr. Cooper's wording about employer, the employee's employer, whoever that employer is, is required to provide them.

So is that correct, Steve?

MR. COOPER: That would be the employer.

CHAIRMAN BURKHAMMER: Yes, right.

MR. COOPER: Whoever that may be.

CHAIRMAN BURKHAMMER: Yes. Okay.

Anything else, Felipe?

MR. DEVORA: No.

CHAIRMAN BURKHAMMER: Bill.

MR. RHOTEN: Yes. The only comment I might have is when you refer to hand washing facilities, I would think that you are talking about hot water at these facilities?

MR. COOPER: Well, as you read the standard, Bill, the committee only had a couple of dilemmas.

We had an old standard. And all the stuff I read yesterday, but we had an already existing OSHA standard.

But we do recognize and it's quite plain to most everyone that in some cases on small jobs, water will freeze up. And we have discussed this before in this committee.

And I think that it is a little irresponsible to think that if you're on a very small job that you're going to be provided warm water.

MR. RHOTEN: Well --

MR. COOPER: And so we got into the other issue we had the dilemma was the utilization of jells which I am sure the NIOSH reps on this committee are going to bring up in any minute.

However, it would be nice if they could provide hot water, but we --

MR. RHOTEN: Well --

MR. COOPER: -- recognize that they --

CHAIRMAN BURKHAMMER: And it is the best and we all recognize it.

MR. RHOTEN: Yes, and I understand it is a problem of sorts. And I would suggest though that maybe 20 years ago it would be more of a problem, but there are some devices out there.

There is electricity on these sites. And there is no construction site in the country that does not have electricity there first.

They got water. They got electricity. And to step from there to hot water, small electrical hot water heater is very, very minor. And it is not that expensive.

I mean, it is not something that is that costly to do as jobs go. And whether you put restrictions on it for the particular size of the job, you know, you might have some argument there.

But to just delete it and not consider it I think is not the thing to do.

MR. COOPER: Then, Mr. Chairman, I don't know if I -- do you want me to respond to everyone on the committee and get into some dialogue with them, but --

CHAIRMAN BURKHAMMER: You may respond.

MR. COOPER: But Mr. Rhoten, we all know that everything is provided to these jobs. For instance, in the iron working trade even on a blitz job, you have some beams across a highway or a structure.

And the first you do is you go out and put Nelson studs on the beams. No one else is there. Maybe, only person is there.

MR. RHOTEN: Right.

MR. COOPER: And he is running off of an electrical generator behind him. And that's what runs the stud gun.

MR. RHOTEN: Right.

MR. COOPER: And we have tons of materials. And we have the welding machines which you can run electricity off.

MR. RHOTEN: Right.

MR. COOPER: We do recognize that.

MR. RHOTEN: And I would agree that it shouldn't be a requirement where, you know, the job site conditions make it impractical.

I mean, if it's really not practical, I wouldn't argue that you should have that set up.

But in the cases where it's practical and I think most cases it is, that it should be considered.

Now, on those situations you cited, I would agree. It's the same thing with the plumbing contractor that goes to a job site and roughs in the plumbing. He doesn't need to, you know.

You cannot stretch it there, but you certainly could stretch it to these jobs, these down jobs where there is 100 workers on it.

It would seem to me like there should be an area in there that you include that and then take care of the situations that you just mentioned where it would be completely impractical and illogical. But there are some cases, it is logical I think.

CHAIRMAN BURKHAMMER: Anything, Mr. Cooper, on page 3 of 5 under the hand washing facilities shall be provided, (f)(2), the last sentence, "Such facilities shall be in near proximity to the work site and shall be so equipped."

You could insert a bracket there that says warm or hot water is feasible, bracket, as to enable employees to remove --

MR. COOPER: (f)(2).

CHAIRMAN BURKHAMMER: Three of 5, (f)(2) which is the paragraph under your (f)(1), hand washing facilities shall be provided.

Listening to the discussion between Bill and yourself, maybe if you inserted in the last sentence there where it says "work site" and "shall be so equipped", if you inserted a bracket there "warm/water if feasible", bracket "as to enable employees to remove", it might address Bill's issue. Does it or doesn't it?

MR. COOPER: Well, I would like that, except that I think you get into who is going to decide what is feasible. It might put a burden on the --

CHAIRMAN BURKHAMMER: Well, I think the employer will decide.

MR. RHOTEN: I think you have to define it a lot clearer than feasible. And maybe, I'm taking a little thought and a little conversation. And even if you related it to the size of the job site or, you know, I like that, except that I think in the interpretation, there could be a complete argument all the time.

CHAIRMAN BURKHAMMER: Why don't you think about that.

MR. RHOTEN: Yes.

CHAIRMAN BURKHAMMER: And maybe, you could come up with some wording that might be more appropriate. And we will come back to you in a minute.

And, Bob, do you have a discussion on the water issue?

MR. MASTERSON: Yes, I think what you're suggesting, Bill, makes a lot of sense. I wouldn't want to see the word "feasible" be used there.

MR. RHOTEN: Yes.

MR. MASTERSON: The word "feasible" is normally interpreted to mean possible.

CHAIRMAN BURKHAMMER: Robert, could you move that much closer to your mouth because I am having a hard time hearing you over here.

MR. MASTERSON: Okay. All I'm saying is the word "feasible" in most cases, people will interpret that as being possible.

CHAIRMAN BURKHAMMER: They can't hear you. Use this.

MR. MASTERSON: Okay. All I'm saying is the word "feasible" in most cases when we have had problems in the field have been interpreted to mean possible.

And again, I've said it several times. We've put people on the moon. Anything is possible, but it doesn't mean that it makes sense and it is practical.

I agree that where it is practical and makes sense, warm water should be provided. But there is many cases where I will be building a community. And I'm 10, 15 houses into the community before electricity even comes to the community. So it is just not available.

CHAIRMAN BURKHAMMER: All right. Bill, take that in mind when you're drafting the --

MR. RHOTEN: This is another comment, you know. When you are talking about hand washing facilities shall be provided adjacent to the toilet facility, no that's a hose. That's a hose running over there which is okay.

You can understand on a residential housing tract. No one is going to go out and put a sink on that job where it's into the sewer out in the middle of the field for hand washing facilities.

In fact, they are going to use the hose bib in which they do now. Or they are going to run a hose over there and use it.

But when you get on larger jobs, I think maybe you can do a size or a number.

CHAIRMAN BURKHAMMER: All right. Play with that. And then, we will come back to you.

Owen.

MR. SMITH: I would -- I have a problem with it and feasible and practical, maybe practical, you know.

We send people out. You have one guy on the truck out in the middle of nowhere. And there is absolutely nothing else around, just him. And he has no electricity, you know, because he will have just a --

MR. RHOTEN: All right.

MR. SMITH: Okay. All right. As long as we are talking about what is practical.

MR. RHOTEN: Exactly. I would never suggest that.

CHAIRMAN BURKHAMMER: Okay. Any other comments on the draft itself?

MR. RHOTEN: No.

CHAIRMAN BURKHAMMER: That's all you have.

Bob.

MR. MASTERSON: Okay. Actually, I think the draft is real good. There is a few comments that I would like to see just taken into consideration.

And it is more an issue of wording than anything else. On page 1 under 1926.51(b)(2).

MR. COOPER: On page 1 of the proposal?

MR. MASTERSON: Yes. "There shall be no cross connection, open or potential, between the systems." I think "open" and "potential" should come out. There should be no cross connections.

CHAIRMAN BURKHAMMER: Do you accept that change, Steve?

MR. COOPER: Larry and I must be getting old or something. We are still MM because I'm one of them also.

CHAIRMAN BURKHAMMER: One more time, we know where you're at. But what is the verbiage?

MR. MASTERSON: I think the "open or potential" between the commas needs to come out. There should be no cross connection between --

CHAIRMAN BURKHAMMER: The last sentence, (b)(2), page 1 of 5, there shall be no cross connections. Delete "open or potential" between "a system flushing potable water and a system flushing nonpotable water".

MR. COOPER: And you are proposing?

CHAIRMAN BURKHAMMER: Delete "open or potential".

MR. COOPER: Just to strike "open" and "potential"?

CHAIRMAN BURKHAMMER: Yes.

MR. COOPER: We just said that, Robert. Just strike "open or potential".

CHAIRMAN BURKHAMMER: Do you accept that change?

MR. COOPER: Jane.

MS. WILLIAMS: If I remember correctly it was dialogue.

MR. COOPER: Yes.

MS. WILLIAMS: That they wanted the employer to identify to potential. It was understood that the cross connection wouldn't be made, but there could be a potential. And that is one of the reasons it was left in there to focus on that possibility.

Now, if you agree here at this committee that that could not happen, then I would have no problem with that word coming out.

MR. MASTERSON: I believe when you're talking potable and nonpotable water, it should be isolated to the point where they should be --

MR. COOPER: It should be isolated.

MR. MASTERSON: -- no contamination, no cross connection.

CHAIRMAN BURKHAMMER: Steve.

MR. COOPER: Delete it.

CHAIRMAN BURKHAMMER: Delete it. Okay.

MR. MASTERSON: The next comment would be on page 3 of 5, section (c)(4) limited access work sites. I would like to see the verbiage stronger than what was recommended. And I think that the employer should ensure the transportation is available.

Now, either the employer could provide it or ensure that the workmen that were there had transportation of their own so they have a means of getting there. One way or another, transportation should be there.

MR. COOPER: You said you wanted to make it much more strict. Do you use the term "should", "shall ensure", "should ensure' or "shall ensure"?

MR. MASTERSON: Shall ensure.

MR. COOPER: Shall ensure.

MR. MASTERSON: Transportation is available.

MR. COOPER: Shall ensure transportation.

MR. MASTERSON: To toilet facilities/washing.

MR. COOPER: So therefore, you're proposing that the employer shall ensure transportation is available to toilet facilities, toilet/washing facilities, I believe is what the Chairman threw in there, when facilities are unavailable.

MR. MASTERSON: Correct.

MR. COOPER: That is certainly I'm sure agreeable to Jane, myself. And I know the Chairman brought that up.

CHAIRMAN BURKHAMMER: Any discussion on the change?

Michael.

MR. BUCHET: Yes, I started looking at this. And I wondered why we are worried about just in this limited circumstance and propose a slight modification to what Bob just did.

And that is the employer shall ensure access to toilet and hand washing facilities. Then, you don't have to worry about how they do it. It's just got to be done.

MS. WILLIAMS: Would you say that again, please?

MR. SMITH: What are you doing with those isolated work sites?

MR. BUCHET: You have to ensure access. I'm not saying there shouldn't be access. I'm just saying we've built this decision tree where the logic says, okay, you have to provide access.

And then, we go over here in this circumstance, by God, you have to provide access. We are suggesting you use transportation of some sort. Why don't we just say, you have to provide access? It's a lot cleaner.

MR. COOPER: We, of course, discussed that issue also and the difference between access and means of transportation. And access could be a road.

We had envisioned and discussed probably much too lengthy of a time transmission lines up through the pine trees that go on for 15, 20 miles, pipelines and the manner in which you would provide these facilities there and if you would to be realistic because in many cases they wouldn't, and what access really meant.

And is access in a construction vernacular access? That doesn't mean transportation. That means a road.

So could you clarify a little bit more what you mean?

(Pause)

MR. BUCHET: I'll withdraw. That's --

MR. COOPER: Thank you. And a wise decision on your part.

(Laughter)

CHAIRMAN BURKHAMMER: So as the wording now stands, the employer shall ensure transportation is available to toilet/wash facilities when facilities are unavailable. Is that correct?

MR. COOPER: Yes.

CHAIRMAN BURKHAMMER: Bob, continue.

MR. MASTERSON: Okay. The next comments, and I think if you're going to leave in the reference to temporary sleeping quarters, you also have to cover food. If people are spending the night, they are going to be fed.

And I don't know that we need both (d)(1) and (d)(2). I think (d)(1) as a minimal needs to be maintained, saying that whatever those food facilities are they have to be in compliance with state and local health standards.

I would not expect a worker to spend the night in a remote site and not have food available.

CHAIRMAN BURKHAMMER: So you're saying you want to leave in (d)(1).

MR. MASTERSON: (d)(1).

CHAIRMAN BURKHAMMER: Of the deleted part, along with temporary sleeping quarters?

MR. MASTERSON: Correct.

CHAIRMAN BURKHAMMER: So the temporary sleeping quarters would become (d)(2).

MR. CLOUTIER: Mr. Chairman.

CHAIRMAN BURKHAMMER: Steve.

MR. CLOUTIER: I think the discussion early on in this conversation was to pull out the food handling.

CHAIRMAN BURKHAMMER: That's correct.

MR. CLOUTIER: The food service facilities away from toilets and that part of the sanitation standard. If it needs to go somewhere else, then it needs to go somewhere else, but it doesn't need to be kept in this standard.

We need to pull food handling, food service facilities away from toilets and hand washing facilities when we're talking about the necessities on a job site or the facilities on a job site.

I think the agency ought to pull it out and stick it somewhere else. It needs to be addressed, but not when it comes to sanitation.

CHAIRMAN BURKHAMMER: Bob.

MR. MASTERSON: I would be fine with that. I just think if you're going to be discussing the possible sleeping arrangements for workers, you need to also take into consideration the food.

Now, if that were to go into a separate area, a separate standard, if you would, I would be fine with that.

MR. CLOUTIER: But this workgroup was not formed to talk about food. It was talking about upgrading the sanitation standard and toilet facilities and capacities and everything else.

CHAIRMAN BURKHAMMER: Well, there could be an interpretation that handling of food comes under sanitation.

Steve, do you have a recommendation from you and Jane as to how to -- what we should do with this section?

MR. COOPER: Well, in my normal manner which I handle things and Jane hasn't had a lot to say, I'm going to just dump it all on her.

(Laughter)

MR. COOPER: I just had a conversation that is obvious to anyone as I say, with Bruce discussing the manner in which these are handled and it is true that when the advisory committee makes their advice to OSHA that OSHA will review the document and decide at that time what will really work in accordance with the best wishes of the advisory committee and, of course, the manner in which OSHA would like to put it down.

We are going to have a lot of conversation on food handling and whether it belongs in there or not. And our committee at the time said, well, OSHA thought it should have been there originally because they put it in there originally. This is the verbiage on food.

And I am very pleased that Bob brought this up again on food handling. We have a lot of bush jobs in Alaska and elsewhere. And they are still going on. And you take a plane out there. And you will hire cooks. And we all know this I believe. I hope everyone here knows it.

So food handling has a part in this. But the question is should it be in here or not?

CHAIRMAN BURKHAMMER: You tell us. You're the co-chair of the committee. What do you want to do with it?

MR. COOPER: As one of the older members of this committee, and I'm talking age here, I don't think I can tell you a whole hell of a lot of times, but I would suggest that we have a couple more comments whether we should keep food handling in here or leave it out.

CHAIRMAN BURKHAMMER: Michael.

MR. BUCHET: I think you should keep it, but maybe take it and move it to the end so that it doesn't fall between toilets and hand washing which seems to be the thing that is bothering most everybody.

CHAIRMAN BURKHAMMER: Larry.

MR. EDGINTON: As Steve said, I've got a lot of members who are impacted by this practice. And I support keeping it in there. It doesn't have to be where it's at in there, but I want make certain that it gets addressed.

MR. SWANSON: Mr. Chairman, may I make a general statement here? And I certainly don't wish to encourage you to cut off this discussion or table this discussion or anything else. ACCSH ought to use its time as ACCSH sees fit.

On the other hand, you seem to be getting bogged down in issues of draftsmanship for an OSHA standard. And OSHA is going to draft this standard on the way OSHA wants to draft it.

And your comments are always welcome, but we have people who have many years of expertise in drafting OSHA standards and are probably more appropriately given that task than this committee.

What the Assistant Secretary in OSHA needs this committee for is for you to tell us what are the problems in the construction industry that have a safety and health connection to them, why are they a problem for the construction industry, and how generally would you like to see us address them and fix them for you.

Any testimony that or any insight that you gain by having the public come to your workgroup meetings, we would love to hear and access to that information.

And then, you make a recommendation to us that we have a standard dealing with A, B, C and here are 27 other issues that we would like to see covered and discussed and have the American worker protected from.

And we will worry about where the comments go. Thank you.

CHAIRMAN BURKHAMMER: Thank you, Bruce.

Larry, do you have a solution?

MR. EDGINTON: I hope. I would suggest that we take 1926.51(d), (d)(1), (d)(2), (e) and move it to the very end prior two definitions.

CHAIRMAN BURKHAMMER: Do you have a title for that?

MR. EDGINTON: Food handling and temporary sleeping accommodations.

CHAIRMAN BURKHAMMER: Does the co-chairs accept that?

MR. COOPER: Help, Jane.

MS. WILLIAMS: I like what Michael said. I think if we are going to move it and retitle it, I would like to see it temporary sleeping quarters/food handling so it is a direct path to what you're talking about. And I think that is very important.

And I have no problem at all in moving it and wordsmithing later with our learned colleagues here to delete terms, such as "wholesome" and things like that if in fact it's going to be moved.

CHAIRMAN BURKHAMMER: Thank you, Jane.

I will consider it moved as part of the motion.

Bob, does that satisfy your comment?

MR. MASTERSON: Yes, it does. Just one last comment on that. And with (d)(1) stated the way it is, I don't know that (d)(2) is really necessary, but that's probably something OSHA will address anyway.

CHAIRMAN BURKHAMMER: Yes, OSHA can wordsmith that. Any other concerns?

MR. MASTERSON: No.

CHAIRMAN BURKHAMMER: Larry -- I'm sorry. Harry.

MR. PAYNE: Like in general, I appreciate the fact that it appears we are not going with "should". I personally don't think "should" has any place in the regulatory standard. It is unenforceable and precatory.

I am a little concerned in the multi-employer site where employer seems to imply just the direct employer of the individual that a subcontractor is less empowered to insist upon that in some circumstances.

And this just seems to be a constant issue in OSHA, the multiple employer work site. And we need to have it all one way or all the other way and not do it a little bit of this and a little bit of that.

I personally think both should be responsible to ensure that it is available so it is not a negotiable item on-site after the project starts, those kinds of things.

But other than that, I like the move to the end and the keeping in of the food handling. I don't see that it can do any harm at all.

CHAIRMAN BURKHAMMER: Thank you, Harry.

Any other comments on the draft?

Steve.

MR. CLOUTIER: Mr. Chairman, this standard is long overdue to be upgraded. And I just applaud and appraise what this workgroup has done. I like the changes that we have made here this morning. And I am ready to call for the question. I am going to pass my turnover to my colleague to my right.

CHAIRMAN BURKHAMMER: The call for the question is not appropriate at this time.

MR. CLOUTIER: No, I said I would like to call for the question.

(Laughter)

MR. RHOTEN: I want to, if I could, Mr. Chairman, get back to this issue of hot water. Okay. What I suggest is that you have language that might say hand washing facilities including warm/hot water shall be provided in near proximity to toilet facilities on job sites with over 50 employees.

And go on to say, on job sites which employ under 50 employees and all residential construction, washing facilities with cold water only would be acceptable.

And that's not a burden for me

CHAIRMAN BURKHAMMER: That's a burden for me because I don't understand what you're saying.

VOICE: We couldn't hear him.

CHAIRMAN BURKHAMMER: Would you --

MR. RHOTEN: Oh, yes.

CHAIRMAN BURKHAMMER: Yes.

MR. RHOTEN: What I would suggest in that language that it say, that it says --

CHAIRMAN BURKHAMMER: Well, wait. Before you start, where are you and where are you inserting this?

MR. RHOTEN: Well, I don't know.

CHAIRMAN BURKHAMMER: Are you in (f)(2) on page 3 of 5?

MR. RHOTEN: I'm not sure I have to dig that up. It's (f)(1), "Hand washing facilities shall be provided in near proximity to toilet facilities". That's all you have in there now.

CHAIRMAN BURKHAMMER: Okay.

MR. RHOTEN: What I would suggest is you take that out and put in "Hand washing facilities including warm/hot water shall be provided in near proximity to toilet facilities on all job sites which -- with over 50 employees."

And then go on to say, "On job sites which employ under 50 employees and all residential construction, washing facilities with cold water only would be acceptable."

CHAIRMAN BURKHAMMER: And all residential construction, is that what you --

MR. RHOTEN: All residential. You got -- I mean, I wouldn't suggest that residential construction that that's practical to begin.

CHAIRMAN BURKHAMMER: No, no, your wording was "and all".

MR. RHOTEN: Well --

CHAIRMAN BURKHAMMER: "And all".

MR. RHOTEN: Yes.

CHAIRMAN BURKHAMMER: Okay.

MR. RHOTEN: "On all sites which employ under 50 employees and all residential construction".

CHAIRMAN BURKHAMMER: And all. Okay.

MR. RHOTEN: So you would exclude residential construction because --

CHAIRMAN BURKHAMMER: Yes.

MR. RHOTEN: You know, I can agree that's not practical. And you an exclude the small commercial sites which would be anything under 50.

I mean, in my mind, there is no reason, if you are going to clean this standard up not to get everything that you can out of it to make these facilities decent.

And this is not a particular cost issue. In fact, in most cases, there is hot water provided. This is just going to give a little nudge to the people who won't spend the couple of hundred dollars to have this hooked up.

I mean, you're talking a minor amount of money for those little hot water heaters now that are potable. You plug in. There is nothing to it. It's not a problem.

CHAIRMAN BURKHAMMER: Steve, Jane, any comments or questions of Mr. Rhoten's change?

Just a minute, Larry.

MS. WILLIAMS: I could speak for myself. I am delighted with it. I didn't think we would get it. I think hand washing facilities should be available. And I have no problem with that wording.

MR. RHOTEN: Thank you.

CHAIRMAN BURKHAMMER: Larry.

MR. EDGINTON: I appreciate, you know, the spirit and intent, you know. The thing that I'm concerned about is I'd love for the people employed in heavy highway construction to have access to hot water.

But as a practical matter, I've got lots of jobs where I've got -- we've got more than 50 workers on where there is no electricity.

MR. RHOTEN: Okay.

MR. EDGINTON: There are no other than mobile sources of water. There are no other sources of water. And I just don't know how we would meet that.

Now, having said that, I had the good fortune to attend some of the workgroup's meetings. And I think what we have before us, because many of the issues that are being discussed this morning were issues that I heard discussed during the workgroup.

And I think that the product we have before us was a real attempt on the part of the workgroup to say what can be realistically implemented on a construction work site?

And I would support continuing to work on it if there are building, construction sites, for example where it could realistically be accomplished.

Let's do that, but let's also remember that there are a lot of things out there where we couldn't do that even if we want to.

MR. RHOTEN: Well, I appreciate your remarks, Larry. And I agree with you that you could include all highway projects are excluded from this requirement.

All I'm suggesting is that where we can have this implemented, there is no problem. So along with residential construction, we could exclude highway projects where it is impractical.

MR. EDGINTON: I don't know if we need to identify --

MR. RHOTEN: And you can even put language in there that on job sites that an employer verify that it is impractical, then let's exclude it, too. I'm not trying to hammer something down the industry that is going to upset anybody.

But I mean, if we are going to run this standard and really change it, hot water where practical should be provided.

MR. EDGINTON: Maybe, we just need to say that and nothing more.

MR. RHOTEN: Well, no. Maybe, you could say -- maybe you could exclude the places that you have problems with.

CHAIRMAN BURKHAMMER: Marie.

DR. SWEENEY: Coming from a background in microbiology, I think it is important that we have hand washing facilities.

In addition, I wouldn't put exclusions in there. Maybe, exclusions for providing water, but there are plenty of waterless, hand washing products that are out there now that are actually safe.

You might add language in there where water is not accessible or feasible, that an acceptable waterless, hand washing material be provided.

VOICE: It's in there now.

MR. COOPER: It's in there now.

DR. SWEENEY: Well, not the way he -- not the way Bill proposed it.

CHAIRMAN BURKHAMMER: Marie, would you -- do you offer a recommendation for the language?

MR. RHOTEN: Well --

DR. SWEENEY: Give me a minute. I'll work with Bill and we can come up with something.

CHAIRMAN BURKHAMMER: All right.

MR. RHOTEN: I'm not trying to throw roadblocks. And again, I'm not debating, you know, getting into the -- I'm just suggesting that there has to be -- it should be easy enough to come up with language that on job sites that have a larger number of employees that you can have some kind of a language that would ensure that they have hot water. It's not an economical cost to the contractor.

And at the same time, verbally somewhere in the language address the issues that I agree with Larry on, on his heavy highway projects or residential construction. That is basically impractical.

But where it is practical, I think we could come up with some language to put it in the standard is all I'm suggesting.

CHAIRMAN BURKHAMMER: I think everybody --

MR. RHOTEN: It's the general idea I have. I don't have the language.

CHAIRMAN BURKHAMMER: I think the committee agrees with that.

Marie, would you work and see if we can come up with some appropriate language. And we will come back to that issue.

Michael, comments on general, general comments on this?

MR. BUCHET: Am I getting Steve's time as well as my own?

CHAIRMAN BURKHAMMER: No, but that's okay. I'll give you as much as you need.

MR. BUCHET: And I echo a lot of things that this has been done and done so thoroughly.

On page 2 of 5, 1926.51(c)(2), the very end of this, I would like to offer and maybe it's captured in what these words mean, but it's not captured in the way I read them, job site toilet facilities shall be regularly inspected and maintained in a clean and sanitary condition. Okay.

How about clean sanitary and their stocked? They can be cleaned, they can be sanitary, but they can have no toilet paper in them. And it doesn't do much good. So I --

CHAIRMAN BURKHAMMER: That's --

MR. BUCHET: 1926.51(c)(2).

MR. COOPER: That's what I'm asking you if that --

MR. BUCHET: Is maintained. The problem with putting what you want to regulate in a definition is I don't think it works as well as saying it's got to be maintained clean, sanitary and properly stocked. And then you can explain what the terms mean somewhere else.

CHAIRMAN BURKHAMMER: Mr. Cooper, do you accept that change?

MR. COOPER: I think. One more time.

CHAIRMAN BURKHAMMER: Page 2 of 5 under the charts, 1926.51(c)(2), sanitation, bold print, "Job site toilet facilities shall be regularly inspected, and maintained in a clean, sanitary, and stocked condition." Stocked.

MR. COOPER: Okay. I do not believe we handle that in the definition on the back which is what I'm looking at.

DR. SWEENEY: You did.

MR. COOPER: Is it in there?

DR. SWEENEY: It says "which is supplied with toilet paper adequate to employee needs".

MR. COOPER: Yes.

DR. SWEENEY: It's the third line. It starts on the last page. The top of the last page, first definition, the end of the second line "which is supplied with toilet paper adequate to employee needs".

MR. BUCHET: I'm not saying the thought hasn't been captured, just that's it a lot cleaner to put it in the enforcement language than stick it in the definition.

DR. SWEENEY: Well, I'm suggesting you actually --

MR. COOPER: Mr. Chairman, they are going to do that one.

MR. BUCHET: I think OSHA will take care of that in the drafting.

MS. WILLIAMS: Mr. Chair.

CHAIRMAN BURKHAMMER: Jane.

MS. WILLIAMS: Stocked could mean anything to anybody, but I like your point. I would rather just insert with "toilet paper adequate to meet". I would rather have the verbiage in there to what stocked means rather than --

CHAIRMAN BURKHAMMER: I think Marie's point about under definitions, toilet facilities, it defines what a toilet facility means. And it is comprised of -- and it says job site toilet facilities. So if the definition applies to that, then we don't need any changes in the sentence.

MS. WILLIAMS: Okay.

CHAIRMAN BURKHAMMER: Mike, do you agree?

MR. BUCHET: That's what I'm saying. I think if you put it upfront in the enforceable paragraph, it's a lot cleaner than burying it in a definition. But we can move on.

MR. COOPER: Mr. Chairman, that is a very good point. And I think the way to handle it is to say, see definition whatever. I'm sure as noted, you would think that OSHA would have included that in there.

But your point is well taken. And we could put in that parentheses whatever, see definition, however that is done. That is, of course, the obvious thing that should be in the standard.

CHAIRMAN BURKHAMMER: I think OSHA can work on that one when they go through and correct it.

Michael, continue.

MR. BUCHET: Page 3 of 5, 1926(f)(1) about the middle of the page, "Has any consideration been given to providing hand washing facilities in proximity to eating and drinking areas?"

Here's the scenario. You have one of these limited access work sites. And you put a toilet facility with a hand basin a mile and a half down the road.

Lunch comes. People who have been working in grease, dirt, muck, and mire. And they are not going to be driven a mile and a half down the road to go, wash their hands and come back and eat.

You need to have a place to clean yourself before you take your sustenance breaks.

CHAIRMAN BURKHAMMER: Bob.

MR. BUCHET: So I suggest we simply add "and eating and drinking areas" at the end of that.

MR. MASTERSON: I would have to suggest that that will be a real problem. Typically, on a residential site, the whole area is used for lunch breaks.

So what you're suggesting would mean there has to be a facility at every house.

MR. BUCHET: No, I'm not suggesting that.

MR. MASTERSON: That's the way I just interpreted it. So a compliance officer could also.

MR. BUCHET: Are you saying you are against the idea of providing hand washing between the time somebody stops working and goes to eat lunch? Or do we got to figure out how to put it there somewhere?

Okay. That's all I'm trying to say is that we need the --

MR. COOPER: We run into all these good, bad, and ugly situations. And we discussed this. And it is common for most of the construction workers at lunch time to go to their automobiles and eat or go into the shack and eat.

And the concern there if -- and a lot of people do go to their automobiles and turn the car on and get warmed up and listen to the radio. So they would be eating there. And you will be spread all over.

We did bring it up. It's a good suggestion, but I think that the committee can run it around. We've done a lot of hard work on this. And now, let the committee make their comments.

I think Jane and I are probably getting tired of trying to resolve everyone's problems here. Discuss if you will, but Mr. Swanson has said that OSHA will look into this. And I think that may resolve a lot of problems.

But, yes, I agree with you. But there is -- it just takes into a large scope of 50 cars on his job site with guys in them. And where do you put the washing facilities?

MR. BUCHET: That I don't think it is the problem because you are already -- you are putting the toilet facilities there.

The problem comes in when you have a distant toilet facility and people are not going to go there to eat lunch.

They are going to stop working where they are. They are going to go somewhere to eat lunch, but it is not going to be to that distant toilet facility.

MR. RHOTEN: Well, I mean, as a practical matter, was this a construction? There is hose bibs all over the job site. What guys really do is they go and get a handful of dirt, they turn on the hose, and then they wash their hands. That's what's going on now.

MR. BUCHET: They use gasoline. They use solvents. Come on.

MR. RHOTEN: Sure.

MR. BUCHET: You've been there. I've been there.

MR. RHOTEN: Well, gasoline, I don't if they can do that.

(Laughter)

MR. RHOTEN: They use a solvent now then.

CHAIRMAN BURKHAMMER: Bill, you and Marie are working on the revision to (F)(1). Maybe you can consider Michael's comments. And you might be able to put a word in that regarding that.

Any other comments, Michael?

MR. BUCHET: Below that on (f)(3), the same washing facilities should be maintained in a -- and this just says sanitary condition.

Why don't we just normalize the language, clean, sanitary? And then, use the appropriate from the definitions sections to show what it is they should be completely maintained in.

That concludes my comments.

CHAIRMAN BURKHAMMER: Thank you. Thank you, Michael.

Marie.

DR. SWEENEY: I don't have a lot of comments. Michael took all my time.

The issues with words like "near proximity" and "adequate", are those standard? I'm just asking. Are those standard words?

And I thought in proximity or near mean about the same thing. And what would one consider to be in proximity, 10 feet, 25 feet, 50 feet?

MR. COOPER: We discussed that.

DR. SWEENEY: Okay.

MR. COOPER: We discussed everything. We discussed all this. We couldn't give them the standard to use, the 50 feet, 28 feet, 192 feet. It won't work on certain job sites. So we left it in near proximity.

And as I said, I think that the standards makers have to resolved these problems and make their determination.

But that is the term that they used prior, previously on the (f)(1). And we discussed the footage and the distance. And we figured it wouldn't work.

DR. SWEENEY: Okay. I mean, you know what I mean. If you don't have it within a few feet of where the toilet facilities are, people aren't going to use it. They're not if it's not nearby.

MR. COOPER: It would be fine if you want to make a proposal to the committee, 20 feet.

DR. SWEENEY: I would say within 20 feet the proposal would be.

CHAIRMAN BURKHAMMER: You can't.

MS. WILLIAMS: I don't know how you could control that.

CHAIRMAN BURKHAMMER: Near proximity is the term that OSHA uses in other standards. And I think it is pretty clear what near proximity means. It doesn't mean a mile, five miles.

DR. SWEENEY: I mean, they haven't defined it. Okay. Never mind.

CHAIRMAN BURKHAMMER: Next.

DR. SWEENEY: In (f)(2), 51(f)(2), "The employer shall provide adequate washing facilities for employees engaged in application of paint".

What does the word "adequate" mean? Is it -- are you going back to the definition of hand washing facilities? Or are you asking about -- are you talking about they have to provide cleaning materials that are applicable to these kinds of materials, paints, coatings, herbicides, insecticides?

CHAIRMAN BURKHAMMER: I think once (f)(1) is defined and we get a definition for (f)(1), that would answer (f)(2).

DR. SWEENEY: Okay.

MR. MASTERSON: And I think the last sentence in (f)(2) clarifies it considerably.

CHAIRMAN BURKHAMMER: I think when Bill offers his revision to (f)(1), it might also clarify it better.

DR. SWEENEY: Okay.

CHAIRMAN BURKHAMMER: So let's hold that one until Bill --

DR. SWEENEY: That's fine. Mr. Chairman, is it appropriate for me to be able to call and individual from -- who is knowledgeable on this from the public right now? Or should we wait until later to make comments?

CHAIRMAN BURKHAMMER: You are asking that someone speak in your behalf?

DR. SWEENEY: That's right.

CHAIRMAN BURKHAMMER: And offer comments on your behalf as a member?

DR. SWEENEY: That's correct.

CHAIRMAN BURKHAMMER: You may do so.

DR. SWEENEY: I would like to call Dr. Linda Goldenhar.

CHAIRMAN BURKHAMMER: Please state your name for the record, please.

DR. GOLDENHAR: I don't know if this is working. Is it working?

CHAIRMAN BURKHAMMER: Hold on. Is the mike on?

VOICE: Yes.

DR. GOLDENHAR: Linda Goldenhar. And I'm a research scientist at NIOSH and the construction research coordinator for NIOSH.

Fortunately, I think most of the issues that I had worked on last night have been addressed. I am pleased to see that people are taking this issue seriously as a health and safety issue, not just a nice thing.

And that makes me happy having worked on the HAZWIC Group, the ACCSH HAZWIC Group before.

I just have a couple of comments to add to whatever else said. And I have agreed with the changes.

In terms of definitions, I guess you have added some things to the back. And I am a little conflicted as to OSHA's wordsmithing versus what we're doing here, but I'll add it anyway.

Putting in definitions of regularly, in terms of regularly maintained. And that was stated upfront on page 2 of 5 I think, yes.

It says "Job site toilet facilities shall be regularly inspected". I think that needs to be defined based on what I've heard from workers as what regularly means.

In terms of page 3 of 5, (d)(4) -- or (c)(4). I'm sorry. About the access "employers shall provide transportation", I know that's been changed.

But again, based on the research I've done simply providing access or transportation does not ensure that employees will be allowed to use that transportation or be given time to use the facilities when needed.

So I think that needs to be taken into consideration. I see some faces that people don't believe that supervisors and foremen don't allow that to happen, but it's true. They say, I'm sorry, you can't go. You'll just have to stay and work.

So I put that forth for a consideration to be added to that piece, too.

And this final issue is potentially very controversial which is why it was probably left out. On (c)(3) on page 3 of 5, and I guess it relates to (f)(4) on page 4 of 5 in terms of toilet facilities and shower facilities being locked from the inside and the outside which is what was put forth in the HAZWIC recommendations.

And people don't necessarily intuitively understand why the need for locking facilities from the outside.

But I suppose if facilities are maintained on a regular basis which would mean regular by sanitary standards not just necessarily by cost standards, this might not be a necessity.

But if you're going to have particularly trades women on job sites having, gender separate and/or which was related to having facilities locked from the outside as well will maintain those facilities in a manner that is helpful for the employees.

Did everyone understand that? I've got some heads shaking over there.

CHAIRMAN BURKHAMMER: No, I don't understand what you said.

MR. SMITH: No, I'm shaking my head it seems to me I can understand locking from the inside when a person is using it.

I would have a problem with the person in there with the outside locked. And someone is in there, and you have someone come and lock the shower and you can't get out.

DR. SWEENEY: Mr. Chairman, I think -- let me make an explanation.

CHAIRMAN BURKHAMMER: Marie.

DR. SWEENEY: It would be when, particularly when people are off-site when the site has been cleared that you use a pad lock to make sure that nobody can enter the facility while it's not being watched.

But that's what I mean, you lock it so that you don't have extraneous people in there trashing it when you're not there monitoring it.

It really is just to maintain the sanitary -- to just maintain the cleanliness of it.

MR. MASTERSON: Mr. Chairman.

CHAIRMAN BURKHAMMER: Yes.

MR. MASTERSON: That sounds real nice, but in practicality, who's going to have the key? I know the job site is a remote site. You need to use the bathroom. Who's got the key?

CHAIRMAN BURKHAMMER: Jane.

MS. WILLIAMS: We specifically addressed that issue and called upon myself personally, an active woman in construction association for input on this item, as well as soliciting other women in construction opinions.

And without exception, the concern was accessibility, sanitary. And there was not a driving force to have your own private facility with a select key.

The concern was having the privacy once you're in there and having them more accessible and having of them available.

So the approach we took on the committee was to try to provide those needs, but not encumber additional problems that would happen when somebody forgot a key or there was no one around with a key and all the other problems of that issue.

DR. GOLDENHAR: Well, the HAZWIC Workgroup obviously very hard on this issue also, probably asking the same people you all addressed as well.

Again, I think that it is an issue of sanitary and maintenance. And I don't think there are any desires to have special needs met.

But I do think if regularly is defined in a reasonable manner and a regular maintenance schedule is attained on the job with the facilities that this probably would not be an issue.

CHAIRMAN BURKHAMMER: Mr. Cooper.

MR. COOPER: I think that's good points. I think it's all fine and dandy, but you don't propose any other language.

Are you proposing instead of regularly that it would be daily?

DR. GOLDENHAR: Daily is probably not -- I don't know. Based on what I've heard from the contractors, that's probably not practical.

MR. COOPER: We discussed this also and we talked about where many facilities depending on the amount of people using those facilities that even daily would not be enough.

We discussed this Tuesday of this week in some duration, depending on the manner in which the people took care of the facilities. And most facilities might not even be clean if they were cleaned daily.

So we didn't know what to do then. So we used the old language.

My other comment on the outside locking of facilities, and I'm thinking of just a -- whatever the term you may want to use, a sanilex porta johns, whatever the term is, everyone that has been on a construction site know that it is very common whether it is male or female to come by and lock the door when the other guy is in there.

That's not going away. I can assume that us three union guys here are all grinning because we have all done it.

And Bill Rhoten is in there. And I come by and hit the latch. It's a problem there. And that's why you have the doors kicked down.

And so we discussed that. They're all good points.

I do -- would like to see something in there like daily. It's fine, you know, it's great with us.

I'm not too sure that any of these, the term "adequate washing facilities" that you have on 3 of 5. And I've got a lot of notes.

DR. GOLDENHAR: Yes, I think that was.

MR. COOPER: What was the other?

DR. GOLDENHAR: That was the issue of providing transportation/access.

MR. COOPER: Oh.

DR. GOLDENHAR: In addition to allowing one to use the facility.

MR. COOPER: Mr. Chairman, I think there is two people on that. And I think --

DR. GOLDENHAR: During work hours.

MR. COOPER: -- we are thankfully coming to some closure on this proposal. But there is a couple of guys.

CHAIRMAN BURKHAMMER: Bob.

MR. MASTERSON: I think a real simple solution to it is in (c)(2). Take out the word "shall be regularly inspected" and just state that the toilet facilities shall be maintained in a clean, sanitary, and well stocked condition or provisioned condition.

CHAIRMAN BURKHAMMER: Is that at all times?

MR. MASTERSON: At all times.

CHAIRMAN BURKHAMMER: Does that satisfy NIOSH's concern?

MR. COOPER: Bruce is nodding that, yes, I should accept that.

(Laughter)

CHAIRMAN BURKHAMMER: Bob, can you give us those words again, please?

DR. GOLDENHAR: Yes, I think keeping in -- can we keep in inspected as well, inspected, maintained?

MR. MASTERSON: I don't know that the word "inspected" is necessary as long as it is maintained and clean and sanitary and a well provisioned condition.

CHAIRMAN BURKHAMMER: Well, I think inspection does a couple of things. It makes sure the latches are not broken or busted and make sure that the door to the toilet seats aren't cracked and make sure that the doors don't have holes in them. So I think inspected has a place. I would suggest inspected might be left in.

You wanted to put and what?

MR. MASTERSON: Well provisioned.

CHAIRMAN BURKHAMMER: Well provisioned.

DR. GOLDENHAR: Well inventoried.

CHAIRMAN BURKHAMMER: What about well stocked?

MR. MASTERSON: Well stocked, that's fine.

CHAIRMAN BURKHAMMER: We have used that term before. All right.

Does everybody have that change?

DR. GOLDENHAR: And all, and you said at all times. Is that, at all times will be in?

CHAIRMAN BURKHAMMER: At all times. Okay.

She's speaking on behalf of -- no, no, no, she's speaking on behalf of Marie. You can do that. Robert's rules of order, you can have a proxy speak for you. Okay.

Is that all?

DR. GOLDENHAR: Knowing you didn't follow through with your -- if you have any issues with that, "employers shall provide transportation to toilet facilities". I'm not sure. Is that going to be changed? Is that still going to be worked on? Or was that --

CHAIRMAN BURKHAMMER: The current wording is "The employer shall ensure transportation is available to toilet/wash facilities when facilities are unavailable at the site."

DR. GOLDENHAR: I guess I would have to work on the wording on this, too, to make a proposal in terms of allowing time. Did you have a concern about that one, Larry?

MR. EDGINTON: Mr. Chairman, this is an issue with respect to access that has come up for us under -- on general industry requirements.

Where we have an employer in compliance with the regulation with respect to amounts of facilities and cleanliness and everything else, it looks great, except that as NIOSH has indicated, the workers themselves are not allowed to use the facilities on as-needed basis or some reasonable approach to it.

I believe that within the last year if my memory serves me correctly, OSHA actually came out with a compliance directive for general industry, speaking to the question as to whether or not not allowing workers to access these facilities was in violation of the regulation or constituted a violation of the regulation. I think the answer there is in the affirmative.

I guess the question here would be whether or not we would leave the language as it is currently written and assume that because you have to provide it, you also have to allow workers to use it or alternately we substitute a couple or add a couple of words with respect to not only do you have to provide it, but you have to allow workers to use it. Do we need --

CHAIRMAN BURKHAMMER: If you want to make that change when we get to you?

MR. EDGINTON: Yes. That's what I told Mr. Cooper.

CHAIRMAN BURKHAMMER: Steve.

MR. COOPER: I know that some may be concerned about the length of time we're taking on this issue of sanitation, but this area is so important to all of us. And it will be fine with me if we spent the entire two days of ACCSH getting this resolved.

I just want to say that the committee also was very acknowledgeable of the fact as it relates to the limited access work sites and the transportation issue that when you say provide does not mean that you will provide.

It means -- what it means in personal protective equipment which we took a beating on, I think the American worker took a big beating on that where it shall be provided, but it doesn't mean that everyone is going to buy it.

And that was a big issue with us. And that is why there is so much concern in the language on "provide", "ensure", etcetera.

So I just want to make that plain for the record that there is a lot of concern in the manner in which OSHA will later on put the verbiage in this item under the employer shall ensure, etcetera. Thank you, Mr. Chairman.

CHAIRMAN BURKHAMMER: Thank you.

Danny.

MR. EVANS: Thank you, Mr. Chairman. My concern on the regularly inspected part of it fall under the enforcement area where it is tough to enforce language that says regularly.

Now, with that being removed, I'm not sure that that makes it any easier to enforce that they are maintained in a clean and sanitary condition.

I don't know if it's better if you have a timeframe put in there or if you just leave that out.

CHAIRMAN BURKHAMMER: I think my experience on various types of projects are is that every project is different.

And the size of the projects, the number of employees, where the toilets are placed and the employee's accessibility to those toilets, some get used a lot more than others, when they are cleaned, whether they are cleaned before the shift, after the shift, night shift, whether they are cleaned when the employees come to work or they cleaned during, when they are work, there is a lot of issues that go into putting a time on there.

And I agree that regularly can be interpreted in many ways. But I think the wording that they have now offered here where it says maintained and sanitized and well stocked at all times kind of puts the emphasis on it's got to be always, you know. It can't be some filth hole out there that's not taken care of.

So I kind of think the way they have changed it and it's been accepted kind of answers your question in my opinion.

MR. EVANS: Hopefully.

CHAIRMAN BURKHAMMER: Hopefully. We'll try it and see.

MR. EVANS: One other area I had was on page 3 of 5 about in the middle of the page there talking about (e) temporary sleeping quarters. And it goes on to say they shall be -- they shall meet the requirements of 29 CFR 1910.

I think that that language should be spelled out in the standard and not referred back to the general industry.

CHAIRMAN BURKHAMMER: We will make that note. And then, OSHA can decide how they wan to insert that. A good suggestion. Anything else, Danny?

MR. EVANS: I think the other issues I had were -- have been addressed.

CHAIRMAN BURKHAMMER: Larry.

MR. EDGINTON: Thank you, Mr. Chairman. Let me first preface my remarks by saying how heartened I am by the discussion of my colleagues this morning.

I haven't heard anyone say that this is something that we shouldn't be doing. What I have heard people say is that this is long overdue. And I clearly recognize that.

One of the advantages of being near to the end is that most of your issues have been taken care of. I've got two, Mr. Chairman.

CHAIRMAN BURKHAMMER: All right.

MR. EDGINTON: With respect to limited access work sites --

CHAIRMAN BURKHAMMER: What page are you on?

MR. EDGINTON: Three of 5.

CHAIRMAN BURKHAMMER: Okay.

MR. EDGINTON: And we have been here before on (c)(4). I really believe that the language has to be "shall". It should not be "should" as has been suggested earlier.

And it is unclear to me what we have adopted and what we currently have pending.

CHAIRMAN BURKHAMMER: The change was we included "shall" in the change.

MR. EDGINTON: Because I've heard it both ways. And I want to make sure.

CHAIRMAN BURKHAMMER: No, it's "employers shall ensure transportation".

MR. EDGINTON: Fine. Then, the other issue I had again has to do with access to the facilities. And I don't think we need to be talking about access to facilities under limited access work sites.

We need to be thinking about it in terms of all work sites and that perhaps what we should look back is go back to page 2 of 5.

And perhaps, under table D-2, we should add language that says that employees shall be allowed to use the facilities on an as-needed basis. We should not restrict this question of use to simply mobile sites. It should be treated as all sites.

CHAIRMAN BURKHAMMER: Maybe, I'm naive and I haven't been in this business very long. But I have never, ever, ever heard an employer tell an employee they can't go to the bathroom. If you got to go, you've got to go, you know. I mean, I --

MR. EDGINTON: I used to think that, too, Mr. Chairman, until I had people start telling me it was so.

CHAIRMAN BURKHAMMER: It's a sad world we live in. All right. Where would you like to put that, Larry?

MR. EDGINTON: Under table D-2. Perhaps, this could be a 1926.51(c)(2). It would have to have a renumbering of what follows.

CHAIRMAN BURKHAMMER: And what's your wording?

MR. EDGINTON: Employees shall be allowed to use toilet facilities on an as-needed basis.

CHAIRMAN BURKHAMMER: Shall be allowed. Is that what you said, shall be allowed?

Steve, do you accept that recommendation in the motion?

MR. COOPER: Yes.

CHAIRMAN BURKHAMMER: Thank you.

Anything else, Larry?

MR. EDGINTON: No, sir. Thank you, Mr. Chairman.

CHAIRMAN BURKHAMMER: Mr. Rhoten, do you have your revision to --

MR. RHOTEN: Yes.

CHAIRMAN BURKHAMMER: That you would like to offer for page 3, (f)(1).

(Pause)

MR. RHOTEN: I would suggest that we put in there hand washing facilities, including warm/hot water shall be provided in near proximity to toilet facilities on all job sites that employ over 50 employees.

On job sites which employ under 50 employees, residential construction, highway projects, washing facilities with cold water only is acceptable. Washing facilities with cold water only is also acceptable on any project where the employer can document that it is not feasible to have hot water.

DR. SWEENEY: And then, we'll add, when water is not available, effective alternative cleansing materials shall be provided.

CHAIRMAN BURKHAMMER: Mr. Cooper, is that acceptable in your motion change?

MR. COOPER: Well, let me, I want to remind you that I am -- all my life been a union person, but I also know that there are some votes on this committee we will not be able to get unless we need 100 percent consensus on the hot water issue. And I know three of them right now.

So you ask me if it is acceptable to me, yes, it is. What type of -- you need an unanimous decision to pass this on to OSHA? No, you don't.

There is going to a big issue on this standard as providing hot water. And I firmly think everyone should have it.

And I realize what your proposal, Bill, was.

MR. RHOTEN: I'm not even suggesting that everyone has it. I understand that you have to be practical with these things.

And I would suggest, too, the other three votes on here, maybe I could debate the issue with them. And if there is areas that they have a real problem with it, we could address it again.

I think my language in the last sentence, it clearly makes it possible for it to be addressed. When facilities with cold water only is -- washing facilities with cold water only is also acceptable on any project, including the one with 50 or more employees or the employer can document that it is not feasible.

Now, that is reasonable. It is going to exclude the residential construction because it is not reasonable to have this standard apply to residential construction.

And it is not reasonable, as you pointed out, to have it apply to heavy highway.

And if the employer's side has opposition to this issue in general, I would hope that you can point out the specifics of the argument so that we can address them and still come out of here where it is practical to have hot water and have it. It is not a big deal.

CHAIRMAN BURKHAMMER: All right. The motion as read has been accepted by the co-chairs for installation in the language. We've been around the table. Everybody has commented. I will accept any questions, general questions, not specific prior to vote.

Steve.

MR. CLOUTIER: This hot water issue is going to kill this motion. And many construction sites that are grass root sites initially on, it just isn't going to be practical, isn't going to be available.

If you stick numbers to it, we're going just destroy everything that we've done here this morning.

My recommendation would be to drop the hot water issue and let OSHA ask when they're going back to the world, is hot water an issue? Can it be made available? Where is it?

But if you go to a power house initially, it is a grass root site, you can't do it. It isn't going to happen. If you're out working, doing a dam on the Mississippi River, it isn't going to happen.

And maybe, if we sat there and said that cold water was fine, if you had the cleansing jells that was fine, and where practical hot water.

But when you mandate that you've got to have hot water first and then demonstrate why you can't have it, you force me to vote no on this issue. And I don't want to do that.

MR. RHOTEN: Mr. Chairman, I will take what I can get. And we are practical. Thank you.

(Laughter)

MR. RHOTEN: If it's all I can get --

MR. CLOUTIER: The employer association just -- we want this to go forward because it is a positive and it is a right thing to do. We have muddied it up here at the very end.

And we would like to show a uniform front that this is an issue that everybody around the table believes in. It is the right thing to do. We want to do it. We are going to lose it.

CHAIRMAN BURKHAMMER: Would you like to offer some wording for consideration?

MR. CLOUTIER: I want to delete the hot water issue.

CHAIRMAN BURKHAMMER: Would you like to offer some wording deleting the hot water issue?

MR. RHOTEN: Where practical. You suggested "where practical" would be nice.

MR. CLOUTIER: Yes, "where practical", I could live with.

MR. RHOTEN: Hot water were practical.

MR. CLOUTIER: And as the third item, the cold water is acceptable. And the cleansing jells, I don't have a problem with that. And then, the third issue is hot water should be provided where practical.

MR. RHOTEN: That's fine. Thank you.

CHAIRMAN BURKHAMMER: And would you reword the -- Mr. Rhoten, please reword it with the change so that we can all understand where we are?

MR. BUCHET: Can we get all three of these put together on one piece of paper and read at one time?

MR. RHOTEN: Hand washing facilities including warm/hot water shall be provided where practical.

MR. CLOUTIER: Mr. Chair.

MR. RHOTEN: Or cold water is acceptable.

CHAIRMAN BURKHAMMER: Wait just a minute, Mr. --

MR. CLOUTIER: If we can take maybe 15 minutes.

CHAIRMAN BURKHAMMER: Just a minute. Just a minute.

VOICE: Why, you want to go to the restroom.

(Laughter)

CHAIRMAN BURKHAMMER: Let's do this.

MR. RHOTEN: No, let's get this done.

(Laughter)

MR. RHOTEN: Let's get this done.

MR. COOPER: Mr. Chairman.

CHAIRMAN BURKHAMMER: I see I'm falling under the revision here 1926.51(c)(2). All right. What I would like to do is get the people together can write one. And we have all the correct words.

So we will take a 25-minute break and allow the committee to come up with one amendment to the motion.

Mr. Masterson.

MR. MASTERSON: Just one comment that I would like to add to that as the -- so that they can consider it as they word this. And that is that there is no definition of residential. So I don't think you should carve out residential.

CHAIRMAN BURKHAMMER: You can work with the group in adding this, you know.

MR. MASTERSON: All right.

CHAIRMAN BURKHAMMER: It takes everybody to get together to come up with one amendment. Come up with one amendment.

Bob, please work with them on your part. Okay.

A 15-minute break. Return at --

MR. MASTERSON: Mr. Chairman. Mr. Chairman.

CHAIRMAN BURKHAMMER: Return at 35 minutes after.

(Whereupon, at 10:20 a.m., the meeting was recessed.)

AFTER RECESS

(10:43 a.m.)

COMMENTS ON DRAFT SANITATION STANDARD (Continued)

CHAIRMAN BURKHAMMER: All the parties have got together.

And Mr. Cloutier, would you like to offer the amendment for the group?

MR. CLOUTIER: Mr. Chairman and committee, if you go page 5 of 5 under definitions, under hand washing facility, we would like to add the following.

The definition would read, quote, hand washing facility, end quote. It means a facility providing either a basin, container or outlet with an adequate supply of. And this is where we are wanting to add the words "cold and/or (hot when practical) potable water".

And then, the rest stays the same, appropriate hand soap and single towels or drying appliance or potable water cannot be provided, effective alternative cleansing materials shall be provided and used in accordance with the manufacturer's directions.

CHAIRMAN BURKHAMMER: Mr. Cooper, do you accept that change in your motion?

MR. COOPER: Jane, do you accept that as co-chairman of this committee?

MS. WILLIAMS: I do.

MR. COOPER: And so do I. Thank you very much.

CHAIRMAN BURKHAMMER: Thank you very much. All right.

We have all had a chance to comment. Bob Masterson asked if he could -- I cut him off before he had a chance to finish his statement. I apologize to Mr. Masterson. Please continue.

MR. MASTERSON: The other comment that I wanted to make were concerning Bill's statement about 50 employees and residential being carved out.

Since we don't have a definition of residential, it shouldn't be carved out. And that's already been taken care of.

CHAIRMAN BURKHAMMER: That's deleted. Right. Thank you. Okay.

Let's go through one last time. And I will read the changes so the committee understands the motion with the changes.

Page 1 of 5, the bottom of the page, 1926.51(b)(2), "open or potential" has been deleted.

Two of 5, 1926.51 sanitation, bold print now reads "Job site toilet facilities shall"; "regularly" is deleted; "shall be inspected and maintained in a clean, sanitary, and well stocked condition at all times."

1926.51(c)(3) stays the same.

There is an addition, 1926.51. For purposes of this, I called it (c)(4), new wording "Employees shall be allowed to use the toilet facilities on an as-needed basis."

Page 3 of 5, (c)(4) limited access work sites, the changed wording reads "The employer shall ensure transportation is available to toilet/wash facilities when facilities are unavailable at the site."

MR. COOPER: Shall or should?

CHAIRMAN BURKHAMMER: Shall ensure.

MR. COOPER: Thank you.

CHAIRMAN BURKHAMMER: Right below that from 1926.51(d) down through temporary sleeping -- down through and including temporary sleeping quarters has been moved to page 4 of 5 after the section on change rooms and prior to the section on definitions.

And there is a note on mine that was brought up under (e) temporary sleeping quarters. And we've asked OSHA to take a look at 1926 C.F.R. 1910, 1 to 42 and make a decision whether to spell it out or leave it as a reference.

Michael.

MR. BUCHET: Mr. Chairman, did we capture what Jane offered which was to title the moved pieces, temporary sleeping quarters and food handling?

CHAIRMAN BURKHAMMER: Yes, we did. That is captured on page 4 where we inserted it. Food handling and temporary sleeping accommodations is the bracketed, is the potential title for that section.

(f)(1) stays the same. The revision being made in the definitions which was just read by Mr. Cloutier.

(f)(3) general, "Washing facilities shall be maintained in a clean and sanitary condition at all times." I'm sorry. I didn't get that. I'm sorry. "Clean, sanitary and well stocked condition at all times."

Page 4 of 5, as I said, we inserted the temporary -- or food handling and temporary sleeping accommodations section between change room and definitions.

And then, on page 5 of 5, the change that Mr. Cloutier just introduced under hand washing facilities. "Hand washing facility means a facility provided either a basin, container or an outlet with an adequate supply of cold and/or [hot water where practical] potable water."

Is that correct, Steve? Did I get that right?

MR. CLOUTIER: It's cold and/or (hot where practical.

CHAIRMAN BURKHAMMER: Where practical] potable water. Okay.

That's the changes to the amendment and to the motion that have -- that has been brought to the floor.

Mr. Masterson.

MR. MASTERSON: I think there was one change that was missed. And that was on the facilities will be made -- employer will ensure facilities are available as needed. It was added.

I think the problem is there are tasks that are critical that you don't break in the middle of the task.

And so during the break, I thought that they had agreed to change that to that the employer will ensure that adequate time is made available for the use of facilities.

CHAIRMAN BURKHAMMER: No, the wording was "Employees shall be allowed to use the toilet facilities on an as-needed basis." Is that the change that everybody understood?

MR. CLOUTIER: Mr. Chairman, I call for the question.

CHAIRMAN BURKHAMMER: The question has been called for.

Prior to calling for the question, I want to resolve 1926.51(c)(4) which was as I thought "Employees shall be allowed to use the toilet facilities on an as-needed basis."

I'm not going to get into a debate with OSHA on whether they can direct an employer to allow an employee to use the bathroom. I think this is adequate words that address that issue.

So with that, it will stand.

Called for the question.

All in favor of the workgroup reports submitted by the Sanitation Workgroup that will be moved forward to OSHA and we will have a hand vote, signify by raising their right hand.

(A show of hands.)

CHAIRMAN BURKHAMMER: One, two, three, four, five, six, seven, eight, nine, 10, 11.

Opposed?

(A show of a hand.)

CHAIRMAN BURKHAMMER: One.

Abstained?

(No response.)

CHAIRMAN BURKHAMMER: None.

It passes. It will be forwarded to OSHA.

Thank you very much, Jane and Steve, for your work.

This took a lot of effort on everybody's part. I want to thank the committee for their deliberations today.

I know this is a difficult one to do. And I think and hope that we did it in a manner that everyone had an opportunity to participate. Thank you all very much. We will move this forward.

Mr. Swanson, this is now being passed on to you for handling and deliberations.

MR. COOPER: Mr. Chairman.

CHAIRMAN BURKHAMMER: Mr. Cooper.

MR. COOPER: Jane and I would like to thank the committee and the workgroup and this committee, ACCSH, and our workgroup for their work and deliberation on this very necessary revision of the standard.

And at least for the employees that I represent, I know they are very thankful for our work today.

There is a small question I would just like to -- a comment I would like to have on the record on the utilization. I remind OSHA on the plain English manner in which the standards now are promulgated and the possibility that they may report back to us with their proposal.

Is that correct, Bruce? Is that acceptable?

MR. SWANSON: Mr. Cooper, this being a construction standard, before we go out with it, we will come back through ACCSH like we do with all of our standards.

MR. COOPER: And just, we went to some degree of trying to get this in plain English. And we would hope that your directorate who is in charge of construction standards would keep that in mind. I am sure they have been reminded enough internally. Thank you.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper.

I would like to remind the public that we will be having a public comment period. I have already gotten some people that have asked if they could comment.

If any members of the public wish to comment, please put your name and what you would like to comment on on a sheet of paper and pass it up to the chair. And we will take you in order of when you have asked to comment. Thank you.

Next on the agenda is the Powered Industrial Truck Training.

Dick, are you ready?

POWERED INDUSTRIAL TRUCK TRAINING
By Mr. Sauger

MR. SAUGER: The first thing I would like to do is I would like to pass a copy of the standards around to each of the members.

We also have additional copies for people in the audience. Or if a member chooses to take two or more copies, then we do have other copies. The copies that we have here will be on the back table.

Any other copies can be attained from our publications office. And to reach them, it is (202) 693-1888.

(Pause)

MR. SAUGER: All right. We tried to write this standard performance language. And we tried to put it down in a manner that was most realistic to most people.

There is basically five steps that you have to go through in training a person to be a powered industrial truck operator and so he won't spend a lot of time reading the whole thing, most of the standard is on like the last two pages. All right.

Basically, the five steps are, number one, you have to select the person. Now, there is two criteria that you should use to select anybody that is going to be any type of an equipment operator.

The first which is that the person has the physical attributes to be able to do the job. The second one is that the person has to have the wherewithal, the mental capacity to be able to learn the subject matter and to be able to apply what that person has learned to the working situation.

Now, after you have selected a person -- or, well, it doesn't necessarily have to come in that order.

But when you are ready to train the person, what you have to do is you have to determine what does that person have to know to be able to do the job. All right.

You base your whole training program on that premise: what does that person have to know?

Now, there is basically three things that we have said in the standard. The person has to know about the truck-specific items, has to know about the location or site-specific items, and then he has to know the general safety rules. All right.

The next step is to train the person, again in truck-specific and site-specific subjects.

In a lot of cases, the site-specific subjects have been kind of glossed over or they have been generalized to the point in which the person will not get what he or she needs to do the job. That is the really critical one to us.

Following the training, then you have an evaluative process. In the evaluative process, what you are looking for is to make sure the person, number one, understands what he or she has been trained in and, number two, he uses that information to operate the vehicle safety.

And the final step is a periodic evaluation of his training, his or hers.

And that is the standard.

CHAIRMAN BURKHAMMER: Thank you, Dick.

Comments, questions from the committee?

Michael.

MR. BUCHET: Yes. Thank you very much for the presentation. Can you elaborate on what periodic evaluation means and how it works or how it might work?

MR. SAUGER: You want me to do this in the context of your industry? Or do you want me to do it just in general?

MR. BUCHET: Well --

CHAIRMAN BURKHAMMER: In general.

MR. BUCHET: Okay. That's a bold.

(Laughter)

CHAIRMAN BURKHAMMER: But your industry is in --

MR. SAUGER: Okay. I can start by doing it in general. Basically what it means is that periodically a person that has the necessary knowledge and skills and so on will look at the operation and make sure it is being conducted safely. All right.

If the person is -- and say, for example, a person is driving a forklift. And he gets carried away. And he starts driving a little too fast. He is going around a corner too fast. He is maybe picking up a load where the forks are not completely into the pellet slots, that type of thing. All right.

The evaluation is intended to pick up those problems. And then, the retraining that would go with the evaluation is intended to ensure that the person understands what the requirements are, how to do it correctly.

And then, as part of the retraining, the -- and we will take the simplest case of the supervisor who would step back and make sure the person does it right. That is the reevaluation that goes with it. All right.

In the case of the construction industry, I know you've got a different situation because of short-term or casual employment.

So a periodic evaluation in that case for an employee that has worked two years -- or two weeks would not happen because we require it at least every three years.

The idea with the reevaluation is that we want that operator to continue to operate safely. And we want you, and I say you as an employer, to ensure that that person does that.

So we said up to three years. It does not have to be three years. If you've got an operator that's not as good as other operators, you may want to evaluate him more frequently. We want to catch the first unsafe act before the accident.

CHAIRMAN BURKHAMMER: Thank you.

Larry.

MR. EDGINTON: Dick, as you and I have talked before, I am starting to get a fair amount of questions in terms of specifically what is a lift truck that is covered by this standard.

A couple of hypotheticals that are posed to me, for example, and we see this commonly in construction is loaders that have either forks themselves or forks that are attached to buckets.

The rule speaks to or at least in the preamble, there is language that says if there is equipment -- and I will paraphrase because I don't remember the exact language that originally was designed for earth moving purposes, it is not covered by this.

Another category of equipment that I sort of see as being up in the air perhaps would be lulls.

And a question that has to come to mind for my folks is, in the context of these questions, is there going to be any kind of a compliance directive developed by OSHA that speaks specifically to these situations for construction?

MR. SAUGER: Okay. Let me -- yes. I am hearing I think two or three questions separately, the first one of which is the equipment covered. All right.

If it was originally designed to have a set of forks or platforms, all right, to carry passengers, that type of thing, all right, then it is a powered industrial truck under this definition.

If it was originally designed as pieces of earth moving equipment or as a frame or some other type of equipment like that, then the standards that exist for those types of equipment would cover those types of equipment. All right.

Moving now --

MR. EDGINTON: Well, with respect to those types of equipment, the employer would have an obligation to ensure that you have been trained to operate the equipment, but not under this requirement?

MR. SAUGER: No.

MR. EDGINTON: Right.

MR. SAUGER: But what would happen in a situation like that and being a realist, if a compliance officer went on a site and found out that these people who were operating the equipment were not trained, all right, then they would get cited probably under 5(a)(1).

MR. EDGINTON: Right.

MR. SAUGER: And they would use this standard and other materials to show that the reasonable employer should have known of that. I don't want to call it a requirement, but of that need.

MR. EDGINTON: Okay. Can I go into that a little more?

MR. BUCHET: Can I --

MR. EDGINTON: I'm sorry.

MR. BUCHET: A second piece of your question. What about the equipment that was designed for multi purposes like a Melroe bobcat?

MR. SAUGER: The bobcat was originally designed to be an earth moving piece of equipment. It's got --

MR. BUCHET: It was designed to move manure is what it was designed for.

MR. SAUGER: Well --

MR. BUCHET: It was designed by some farmers in Minnesota.

MR. SAUGER: Yes.

MR. BUCHET: And it was designed with multiple purposes.

MR. SAUGER: Okay.

MR. BUCHET: So OSHA is saying that that type of equipment was an earth mover will not be covered?

MR. SAUGER: That's right. All right. Now, let me go on with I think the second half of your question. Yes, we are in the process of putting out a directive to the field.

The Assistant Secretary has said he wants to have a short period of experience with the standard to find out what the questions are, what the problem areas are perceived to be and so on before he puts a directive out.

The exact schedule of when that is going to come out, I do not know. All right.

However, we are now talking about moving the effective date of the standard back to 1 December. So we have time to react.

The effective date of the standard was 1 March, but then 1 December was when you had to have all your employees trained.

MR. BUCHET: Right.

MR. SAUGER: All right. And we're going to try to coalesce those two dates into the one.

MR. EDGINTON: December 1 you're saying now?

MR. SAUGER: 12-1.

MR. EDGINTON: And when would training have to have been accomplished then?

MR. SAUGER: 12-1.

MR. EDGINTON: Twelve.

MR. SAUGER: Twelve.

CHAIRMAN BURKHAMMER: Anything else, Larry?

MR. SAUGER: He had -- you had one more question.

MR. EDGINTON: I think that was it.

MR. SAUGER: Okay. I'm sorry.

CHAIRMAN BURKHAMMER: Just a minute, Mr. Cooper.

Is Larry finished or he's not finished?

MR. EDGINTON: I have nothing more.

CHAIRMAN BURKHAMMER: Mr. Cooper.

MR. COOPER: On page 66270 of the document, of course, on the powered industrial in the center column, 1910.178, I see on top of the third column, three lines down. It starts with "Industrial truck operators competent to operate a powered industrial truck safely".

And here comes the question. As demonstrated by the successful completion of the training and etcetera, does that mean to you that when a compliance officer wants to find out if the individual is trained that there would a need to document the training?

MR. GORDON: Further down, the standard requires that there be a certificate by the employer that the employee has been successfully trained.

That is a specific requirement. And we would hope that if the training had been done by an outside source, there would also be some evidence of that, though there is not a specific requirement.

MR. COOPER: You say further down, could you tell me where that further down is?

MR. SAUGER: Sir, before we go on. I'm sorry. I was very remiss.

This is Chuck Gordon. He was our Project Attorney on this. He and I had worked together on this whole thing. So I feel that he is probably as qualified if not myself to answer your questions. I wanted to get that in. It's only fair to him.

CHAIRMAN BURKHAMMER: Well, Chuck, where is that at?

MR. GORDON: Paragraph 6 on the next page, third column.

MR. SAUGER: On the right-hand side, about third of the way down just above the table.

MR. COOPER: That answers my question. Thank you very much.

The concern is on the standards in the past, that OSHA practice has been in the past. And it has been discussed many times before this committee and elsewhere that if the individual says the he or she has been trained, it has been accepted.

And I am glad to see that you are going to go to the trouble of writing a standard that you ensure that there is some sort of certification that the training did take place. And I am very glad that you have that in there. Thank you.

CHAIRMAN BURKHAMMER: I guess taking my Chair hat and putting my employer hat on, you are asking an employer to certify operators who in the union side of the house come out with a card saying that they are already certified to operate equipment.

And we are hiring them because of that expertise that they bring with them because of their apprenticeship training and because of their union card that says they are certified to operate equipment.

And now, you are asking the employer to recertify an employee who is supposed to be already certified.

So as an employer, I would say if I were to going to call and ask for operators, I would specify I want pre-certified operators who already know how to operate a forklift.

And I am sure the responses that we are going to get from some of the locals is, well, we don't have any.

So then, what does the employer do?

MR. SAUGER: I think the first thing the employer has to do is he has to look at paragraph 5 of the standard which is avoidance of duplicative training. It is the right-hand column right above paragraph 6 that we just discussed.

And basically, if you have an employee come onto your work site that claims prior experience or has been trained, that what you do is you evaluate his performance to ensure that in fact he can do the job and will do the job safely.

Once you have made that determination, you do a certificate. And the person does the job.

If the person is incapable of doing the job, then you are going to have to take some corrective action as long as your employees are in -- and I say your employees.

If they are union or they are your permanent employees, if they are in danger, you have to protect your employees. That is what the law says.

CHAIRMAN BURKHAMMER: All right. But wouldn't the wording then going on what you just said -- and I absolutely agree with the evaluation, of course.

But under 6, it says "The employer shall certify that each operator has been trained and evaluated." Wouldn't it better to say trained and/or evaluated if you are allowing either or?

MR. GORDON: We want the employer to have some evidence that the employee has been trained if he hasn't trained him himself.

Conceivably, it could be at the employer's say so, but we are hoping that the employee will have some kind of document or evidence that he has received the training.

And then, the next step is that you evaluate him on the work site. And if he is doing the job safely, then you are entitled to do the certification.

CHAIRMAN BURKHAMMER: So for a compliance officer, is the union card count as trained?

MR. GORDON: I wouldn't think that as such, but I couldn't speak to it.

MR. SAUGER: Let me answer your question by posing a question to you. When you call the union and you get somebody out there, do you have the right to specifically say I want this person to be trained as a forklift operator?

CHAIRMAN BURKHAMMER: Yes, you can call for a 4100 operator or a cherry picker operator or a grove operator or a forklift operator.

MR. SAUGER: Right. Then, if you look at this avoidance of duplicative training, it says that if the person claims prior experience. Well, in this case, it is not necessarily the person himself, but it is his union that represents him that is claiming the prior experience.

CHAIRMAN BURKHAMMER: So that is acceptable?

MR. SAUGER: Absolutely.

CHAIRMAN BURKHAMMER: Okay.

MR. SAUGER: Absolutely.

CHAIRMAN BURKHAMMER: Larry.

MR. EDGINTON: Just sort of following up on that point. I mean, we have advised all of our locals to ensure that any of our members who may operate these trucks have received training.

But what we have also told them is that as we understand the rule, the rule has language that says that there is no redundancy of training required by the establishment of these rules.

That meaning that if you have already trained somebody, your obligation then is now to certify that they are competent, but you don't have to retrain, but you do have to do something that recognizes there is some process that evaluates that they are competent. And you certify to that.

Are we correct in giving them that information?

MR. SAUGER: Sure. Now, one thing you have to remember is, let's look at the flip side of this.

If you have an employee that, say, comes from the union or just you hire him on any basis and he claims prior experience, and you find that this person is in fact doing something incorrectly, all right, then if you are going to use that person as an operator, you have to retrain him, reevaluate him. And then, you can certify him and put him on the job.

MR. EDGINTON: And that is what we have advised the locals.

MR. SAUGER: Yes. But, no, like you say, under that paragraph 5 where it says avoidance of duplicative training, all right, a person claims prior experience and he can demonstrate that he knows what he is doing.

MR. EDGINTON: Right.

MR. SAUGER: Then, all you've got to do is say, go to it.

MR. EDGINTON: Do it.

CHAIRMAN BURKHAMMER: Bob.

MR. MASTERSON: Okay. If I heard what you were saying correctly, in Stew's scenario, he calls the hall, requests a forklift operator. The operator has been trained. He comes out to the sight.

As I'm reading the certification, it appears that what you are also saying is that the employer then has to evaluate that operator's ability and issue another certificate?

MR. SAUGER: No, no, no. The certificate would be maintained by the employer. All right.

He doesn't -- the issue of driver's licenses, we try to stay away from because when you operate a vehicle on the highway, most of those people are licensed, but not many of them operate safely.

No, we don't think that you have to give him some kind of a driver's license or something else.

MR. MASTERSON: What 6 says is that "The employer shall certify that each operator has been trained and evaluated as required by paragraph 1. Certification shall include the name of the operator, the date of the training, the date of the evaluation, and the identity of the person performing the training."

MR. SAUGER: Yes.

MR. CLOUTIER: Yes, but, Dick, you are asking us to come back. If we call the hall and get an operator out there. He has been trained. And there is no retraining.

But you are asking us now to certify him, qualify him, and then issue some type of piece of paper as a construction employer that verifies that he has had the training, the dates of the training, that you evaluated him when you send to the field. That is onerous.

MR. GORDON: We were hoping that it would not be onerous. You would call up the hall. And they would say we are sending over John Jones who has been trained last March.

And he comes to the site. And the foreman watches him briefly to see that he has been, he is doing the job safely.

And then, all you need to do is keep some kind of record. It doesn't have to be a certificate, any kind of record that John Jones was trained last March and has been evaluated today and --

MR. CLOUTIER: Can a foreman put that in his time book?

MR. GORDON: Any place. There is no specific requirement of how you keep it. And it certainly does not have to be a certificate.

CHAIRMAN BURKHAMMER: Steve.

MR. GORDON: It could be payroll records or whatever.

CHAIRMAN BURKHAMMER: Bob had the floor before you.

So please continue, Bob.

MR. MASTERSON: That was my only question. I am reading this to interpret the employer has to have some other form of record on that guy that comes out from the hall for one day.

CHAIRMAN BURKHAMMER: Steve.

MR. CLOUTIER: I agree, Mr. Chairman, that you've got to certify. You're going to have a write a letter. You're going to have to put something somewhere that I certify that I trained Stew Burkhammer. I looked at his training. I evaluated him on the machine. I made a judgment. I put him to work.

CHAIRMAN BURKHAMMER: Dick, in most standards when they come out, there is a compliance directive written for the standard. Have you guys written one for this one?

MR. SAUGER: It's like I said. The new Assistant Secretary says he wants to have a short period of experience with some of the questions that are coming up and so on.

There is a directive that is in the works, yes.

CHAIRMAN BURKHAMMER: Can we get a copy of that while it is in the draft form to evaluate and maybe offer some comments back to help you with it?

MR. SAUGER: The directives are written by a different office. We coordinate with them on what they say and everything, but I don't have a current draft, no.

CHAIRMAN BURKHAMMER: Bruce, can you help him to get one?

MR. SAUGER: I think Bruce can get one from --

MR. SWANSON: Yes, I will work with the Office of Compliance and see if we can.

MR. GORDON: And we would welcome any suggestions that you would have, you want to present to us about, you know, how the compliance directive should be, should address these kind of topics.

CHAIRMAN BURKHAMMER: We had a workgroup that was chaired by Mr. Cloutier that worked on this extensively previously.

And I would like to ask Steve and Larry if they would jointly get back and reconstitute this committee because it was back when Steve finished his work.

But I would like to reopen this workgroup and ask Steve and Larry to work with Dick and get a copy of the compliance directive through Bruce. And let's see if we can help clean up some of this.

And, Bob, if you would like to be a part of this, we would certainly appreciate it.

MR. MASTERSON: Sure.

CHAIRMAN BURKHAMMER: All right. Bob will work with you on that.

Michael.

MR. BUCHET: It seems that there would be plenty of places to draw from experience. If an employer calls the hall and says send me somebody who has been trained in asbestos abatement, lead abatement, haz waste removal, has respiratory protection training, has basic HAZCOM, well, there is already a process for sending that information from the hall with the employee to the work site.

CHAIRMAN BURKHAMMER: Right.

MR. BUCHET: So this would be an add-on, not a whole new system. At least it might meant that way.

CHAIRMAN BURKHAMMER: And I think -- and I know when you call the operators now and you ask specifically for like a 4100 or the different operators, they have all those records. And they are very good about sending you someone.

And they do not want to send an operator out there that doesn't know what he is doing or who has never the rig because he is exposing himself and the union also.

Larry.

MR. EDGINTON: Mr. Chairman, the regulation allows or appears to allow employers to rely upon training that is provided by third parties.

It is somewhat unclear to me as to whether or not the regulation would allow employers to relay solely on third parties to provide training and certification and the other areas which we have had some concern about with respect to our own training programs which we have a high level of confidence in.

But the regulation in terms of the laundry list, so to speak, that should be met speaks to site-specific hazards associated with the operation of the lift truck.

And we are trying to get a read on how narrowly defined are those site-specific hazards. Are we talking about hazards on the specific site that that member will be dispatched to work on?

And if the answer to that is yes, you have to provide that training. It would seem then that beyond anything that I might be able to provide my contractors.

That contractor is going to have to take at least some step when my member arrives on that job to identify those site-specific hazards which would be encountered in the operation of the equipment.

Are we correct in that understanding?

MR. GORDON: I think generally, yes. You are absolutely correct, third parties can provide training and evidence of the training.

Now, if the third party training, let's say, is not only in a particular kinds of trucks, but also in using those trucks in rough terrain.

And the employee comes to a construction site. And he is driving that kind of truck on rough terrain. There is very little additional training that the employer would have to do.

He would only have to show the worker that this site has a unique hazard, a very weak section here that you can't drive or this soil is particularly loose or something like that which would not be covered by the general training.

But the employer is required to watch that employee. That is what we call an evaluation, at least briefly to make sure that he is competent to drive safely on that site. That is the evaluation part of it.

But there is no need to start training from scratch, you know. So the intent was not to duplicate anything.

But there is an obligation to observe that the employee is driving competently on the site.

MR. SAUGER: Let me add one point to that. There might be some specific thing that is unique to your job site that will affect the safe operation of that forklift. All right.

I cannot think of what it would be right off the top of my head, but you have a situation like that and you have a person come on who is going to drive a forklift, I would make absolutely sure as the employer that I would brief that person before I turn them loose. All right.

And that would be retraining, just talking to the person and explaining. Like he says, we've got a section over here where it's extremely muddy. The vehicle is going disappear if you drive over there. They should know that.

And again, let me kind of say the whole thing as a single thing. All right. What we want you to do is we want you to train the person in what that person has to know to do the job and then to evaluate him to make sure that he does the job correctly. That is what this whole standard is all about.

CHAIRMAN BURKHAMMER: Felipe.

MR. DEVORA: The scenario, not the union scenario, but the non-union scenario of controlling a contractor, a general contractor on the site that coordinates the trade to come out and do the work that requires these kind of machinery, we are going to assume or we would ask our subcontractor, you know, are your people trained? And they would say, yes, we trained them. We recertify. We evaluate. We are in compliance.

However, again, there we go adding another layer to the controlling contractor. When the compliance officer comes back out there, he is going to want to know did the controlling contractor take every step to assure the certification.

And so whereas in the case -- a union case, you call out, you call for that particular operator, you may have two or three trades come to a job site where you have different site-specific conditions. The plumber may be using the forklift. The mason is using the forklift.

So as that top layer of the controlling contractor, we are also going to have to I guess validate the certification. So --

MR. GORDON: Well, if the plumbing subcontractor is on site and he has a document that certifies that his employee has been trained and evaluated, you do not have to duplicate.

MR. DEVORA: And I won't be cited. Thank you.

MR. GORDON: Well --

(Laughter)

MR. GORDON: This standard does not require you to duplicate that. All right.

MR. SAUGER: Let me suggest though, if you are the general on a job site and you've got subs working for you, all right, if they have people coming and going and we're doing something as critical as operating a forklift around other employees, as a general contractor, I would kind of my eye on the guy for awhile, too, until I satisfied myself this person knows how to do the job.

MR. DEVORA: Right.

MR. SAUGER: All right. I mean, it is an informal evaluation. And you, you know -- dependent upon what the current policy is on citing general contractors as compared to subs and so on, that's -- but I would be concerned because I am still there and I am the one that has the real responsibility. I would do some type of evaluation of this person.

MR. DEVORA: And we would do an evaluation.

MR. SAUGER: Yes.

MR. DEVORA: If they did not meet our criteria, they are going to say, well, I'm sorry, we have met the minimum standard to train on. I'm sorry you don't like the way, you know. And then, we will have to get involved in maybe retraining.

MR. SAUGER: I know of people that have put into contracts such things as like your employees must meet the OSHA standards.

MR. DEVORA: Yes.

MR. SAUGER: All right. And that type of thing. And if these people are not doing the job correctly, then you are the general. You are the boss. Take corrective action if you have to.

I mean, tell them, you know. You can't have that person on the job like that, yes.

MR. DEVORA: Right.

MR. SAUGER: I mean, it is a whole --

CHAIRMAN BURKHAMMER: I don't think we want to go there at this point.

MR. SAUGER: I know. That is why I was trying to get through it real --

CHAIRMAN BURKHAMMER: That is a whole new can of worms.

Bob.

MR. MASTERSON: It is obvious you have never tried to manage a residential construction before. That might be spread over the entire city.

And what I hear you saying is as the general contractor, I am going to have to check the certification of every operator that came out on one of my sites that day.

And if I don't, then I'm remiss. Now, I've got a job site spread out over 60 miles. How am I going to do that?

MR. SAUGER: Do you have a superintendent on site?

MR. MASTERSON: One superintendent spread out over 60 miles. One superintendent spread out over 60 miles.

MR. SAUGER: Oh, okay. Then, you don't have anybody on the job site?

MR. MASTERSON: Not necessarily.

MR. SAUGER: Okay. Well, then, let me tell you in all honesty having been a compliance officer. Then, the compliance officer has to make a decision. And I'm talking if there is an OSHA inspection.

Ultimately, is the general responsible, can he do it and so on?

The standard talks to the requirements that are placed on the employer. Now, because construction is a kind of a unique environment and everything, I don't think it is fair to us to try to get into what is the general contractor's responsibility and so on.

MR. MASTERSON: Well, what I just heard you all describing to Felipe did exactly that. And my past experience is it will be carried over to the general contractor.

MR. GORDON: And there is not a specific requirement that the certification be on every site. There has to be a certification somewhere that the employee has been trained and evaluated.

MR. MASTERSON: If that is the case and even if my supervisor was on site and the operator didn't have the certification on site, how would we check it?

MR. GORDON: I assume you would have to be able to give a reference where it was located.

CHAIRMAN BURKHAMMER: All right. Bruce is going to close this discussion out. And then, we will move on to the next one.

MR. SWANSON: Yes, I am happy to hear that we've got contractors that can absorb terms like controlling contractor into their every day vocabulary now.

(Laughter)

MR. SWANSON: But this issue -- I mean, the standard speaks for itself as to the employer-employee relationship in that you guys are going in my humble, Mr. Devora, somewhat far afield with these gentlemen on things like multi-employer policies.

But you do underline that it is Dick's responsibility, it's my responsibility, it's the responsibility of the compliance office that what we are telling you here today is our interpretation of the standard as these gentlemen wrote it and they feel that should be interpreted.

Now, the task is to transmit that to a couple of OSHA's compliance officers who aren't in the room, some thousand of them.

And you have none too subtly brought it to our attention in the past that there is some break in the interpretation of a standard between the time it leaves the standards office and a compliance officer appears on your job site.

We have to, through a directive, through a Q&A, through other forms make sure that our field inspection staff understands how we intend this standard to be interpreted on the job site.

That is over and above the multi-employer which is another issue that we have had an opportunity to talk about in the past. Thanks.

CHAIRMAN BURKHAMMER: Okay. Thank you very much, Dick. I appreciate it.

The workgroup will be getting with you. And hopefully we can provide some guidance in some of these questionable areas.

Marie, would you like to introduce the next guest, please?

DR. SWEENEY: Mr. Chairman and members of the committee, there are -- we have two individuals from NIOSH, Stephanie Pratt and Virgil Casini who were in charge of developing and running a workshop on highway work zone safety. And this workshop occurred in December.

They are going to give you a synopsis of the activities of that workshop.

NATIONAL INSTITUTE FOR
OCCUPATIONAL SAFETY AND HEALTH

A Report on Preventing Vehicle and Equipment-Related Occupational Injuries
in Highway Construction Work Zones

By Ms. Pratt

MS. PRATT: My name is Stephanie Pratt. I am employed at the NIOSH Division of Safety Research in Morgantown, West Virginia. And I was asked to be here today to tell you about work that is being done in the NIOSH Division of Safety Research on worker safety in highway work zones.

Virgil Casini is with me here today. He is the Team Leader for the NIOSH Fatality Assessment and Control Evaluation or FACE Program which is a component of my presentation today. And he is here to answer questions about that program.

Today, what I am going to do is give you some background data on worker fatalities in work zones and then describe some current NIOSH activities in this area which go beyond our data analysis.

(Showing slides.)

MS. PRATT: My collaborator on the data analysis specifically is Suzanne Kisner, a colleague of mine at DSR. And I am also working with David Fosbroke on developing one of the projects related to the workshop that Marie mentioned.

Our primary motivation for becoming involved in work zone safety issues is that we felt that the majority of research in this area has focused on motorist safety.

The overall approach has been one of assuming that whatever is working to prevent motorist injury will also prevent worker injury.

Our concern was that many reporting systems do not differentiate between workers and motorists or they include only incidents in which a traffic vehicle was involved.

And as you are all aware, highway construction operations may be complex, long-term projects that involve off-road activities like excavation, blasting, asphalt production.

Highway construction workers are exposed to numerous injury risks that are unrelated to motorist traffic. Traffic record systems were not designed to capture that information.

So what we wanted to do in analyzing the data was to better describe risks and circumstances for specifically equipment and vehicle-related worker deaths and to do that across the full range of highway and street construction work.

The general research questions we had in mind when we began were to determine first of all how many vehicle and equipment-related deaths there were among highway workers that actually occurred in or near work zones.

We were also interested in if a person type was a victim, a worker on foot, an equipment operator or a passenger at the time of the incident. What kinds of vehicle or equipment were involved? And what were the victims occupations?

We also wanted to know how many deaths involve motorist intrusion into the work zone versus occurring entirely within the work zone.

We suspected that these might be very different kinds of incidents with respect to the kind of machinery and workers involved.

Also of interest to us were the kinds of work being done by workers on foot who were struck by traffic vehicles, especially was flagging the primary activity.

Perhaps, I should inject an explanation about our use of the phrase "workers on foot". Initially, we began by calling those pedestrians workers and discovered that when we received input from people involved in traffic that for them a pedestrian was anyone in the area on foot, a bystander, and that it was incapable with their sense of a worker in the work area. So the for the moment we are using workers on foot as our working term.

The data source we used was the census of fatal occupational injuries or CFOI for 1992 through 1996.

CFOI is a program of the Bureau of Labor Statistics that is implemented in cooperation with the states. It uses multiple sources to verify work-related fatalities.

First of all, we wanted to be sure that it made sense to limit the analysis to workers who are employed in highway and street construction, SIC 1611.

What we did first is we reviewed case narratives that contained terms like "work zone, flagger, barricade, cone, and construction zone". We did this across all industry.

We did find that very few deaths that appeared to be legitimate work zones cases fell outside of 1611.

The few exceptions we found were concentrated in three different SICs which were bridge construction, concrete contractors, and firms in the service industries that rent equipment along with operators.

What we did then was within 1611 choose only cases that involved machinery or motor vehicles, finally limited ourselves to only those fatalities that clearly or probably occurred in a work zone.

We did not include motor vehicle crashes that occurred during travel to or from a work area.

We began with 600 cases exactly that occurred between 1992 and 1996 in SIC 1611. And making all these decisions about inclusion, we ended up with a final subset of 328 fatalities that we judged to fall within the scope of our analysis.

We classified each of the 328 fatalities by person type, that is whether the victim was a worker on foot, a vehicle operator or a passenger when the injury occurred.

We then further divided the incidents involving workers on foot into those in which a traffic vehicle intruded the work zone and those involving a construction vehicle or a machine within the work zone.

From this pie chart, you can see that in about 65 percent of the deaths, the victim was a worker on foot. That is the red slice plus the blue slice that is highlighted.

The blue slice that is highlighted shows incidents where the workers on foot were involved in an incident with motorist intrusion into the work zone.

Surprisingly, only about half of the worker on foot fatalities overall did involve intrusion of motorists into the work zone. The remainder occurred within the confines of the work zone.

The victim was the equipment operation in 26.5 percent of cases and was a passenger in 5.8 percent.

This slide shows you the primary source of injury for all 328 work zone fatalities. One hundred forty-nine deaths or over 45 percent were attributed to trucks.

There were 62 dump trucks, 27 each pick-up trucks and tractor trailers. And the remaining 33 were other and unspecified trucks.

Fifty-eight deaths, almost 18 percent involved road grading or surfacing machines, such as pavers, rollers, asphalt milling machines, and compactors.

Cars were the primary source in 54 deaths, almost 17 percent. Twenty deaths about 6 percent involved excavating machines.

Here is primary source of injury broken out for operators and workers on foot. The blue bars represent the operators and the yellow operators -- excuse me -- the yellow bars represent workers on foot.

Over 40 percent of the operator deaths involved road grading and surfacing machinery. Twenty-five percent of all trucks and excavating machinery were involved in 13 percent. Only 23 percent of these involved cars.

But for workers on foot, the yellow bars, trucks were involved in 117 of the 218 total deaths.

The most common truck types were dump trucks followed by pick-ups and tractor trailers. In this instance, cars accounted for about 23 percent of the fatalities, road grading and surfacing machines for about 8 percent, and excavating machines for about 6 percent.

This slide shows the event type for operator fatalities alone. The first four categories area all classified by CFOI as transportation incidents.

The largest bar there is non-collision incidents which comprised nearly 60 percent of all operator fatalities. The non-collisions are the single vehicle incidents.

Over two-thirds of these non-collisions were further classified as either jackknifes or overturns. And another 16 percent were collisions with other vehicles or equipment.

Incidents in which the equipment stuck a stationary object or a worker on foot accounted for only a small proportion of operator fatalities.

Examples of non-transport incidents in this group were those in which the operation was pinned between the frame and bucket of a loader or was caught in the tracks of a bulldozer.

As you can see from the part of this pie chart that is pulled away, in over one-third of the cases in which the machine operation, he or she was not employed in a vehicle or equipment operating occupation.

There were 32 workers in this category. Seventeen of the 32 were employed in precision production craft and repair occupations. For this analysis, that essentially becomes the specialized construction trades.

Eleven of them were laborers, three were in managerial positions, and the remaining one worker was a sales worker.

Operator fatalities in which the victim was actually employed in an operation profession were evenly divided among truck drivers, operating engineers, and operators of graders, dozers, and scrapers.

This shows the primary source of injury for workers who were on foot at the time of injury, according to whether or not the incident involved intrusion in the work zone.

For the intrusion incidents, cars and trucks were each associated with 40 to 45 percent of the deaths.

Trucks were the primary injury source in 65 percent of the non-intrusions, the events that occurred within the confines of the work zone.

Forty-six of these 66 truck-related deaths involved dump trucks. This differs for the intrusions where the proportions of dump trucks, pick-ups, and tractor trailers were roughly equivalent.

Construction machinery account for another 30 percent of the nonintrusion incidents.

Here, we compared event type of intrusion and nonintrusion fatalities involving a worker on foot.

As you would expect, in nearly all the intrusion fatalities and in about 80 percent of the nonintrusion, the worker was struck by a vehicle or by mobile equipment.

In 49 of the 102 nonintrusion deaths, those occurring within the work zone, the CFOI case narrative clearly stated that the worker was struck by a backing vehicle.

The only other category with a substantial number of cases in this analysis was nonintrusion fatalities in which the worker caught in or compressed by equipment or objects.

These are primarily incidents that involved process machines that were set up in construction zones, including rock crushers, asphalt plants, and conveyors.

Here, we looked at the occupation of the workers on foot for intrusion versus nonintrusion fatalities.

The intrusion fatalities were dominated by workers in labor occupations, 64 percent. And that is the blue bar.

Another 20 percent were crafts workers. And 8 percent were transport workers.

For the non-intrusions, about 40 percent were laborers. Twenty-seven percent were in crafts occupations. And 24 percent in transport occupations.

It is worth noting that almost one-fourth of the workers on foot killed within the work zone were workers in transportation occupations, in other words, vehicle and equipment operating professions.

From the CFOI narrative, we were able to identify the victim's work activity at the time of the incident for about 70 percent of workers on foot who were killed when a traffic vehicle intruded into a work zone.

We were surprised to see a fairly small proportion of flaggers. That is the red slice of the pie.

Among the cases we were able to classify, the most common work activity was the actual road repair or construction which is the blue followed by flagging, the red, and then setting or moving traffic control devices, such as traffic cones, message boards, and barriers. And that's about 13 percent as represented by the orange slice of the pie.

The other group included activities like materials handing and equipment maintenance. Using the case narratives, we were also surprised that we were able to verify in how many cases the traffic vehicle had penetrated the work zone and in how many cases did the workers step into the traffic way.

In 104 of the 111 fatalities, the traffic vehicle actually did penetrate the work zone. And the remaining seven, it was clearly stated that the workers stepped into the traffic way.

Although keeping highway construction work and motorist separated is the major work zone safety issue for motorists, we learned from our analysis that for workers, this is only part of the picture.

Only about one-third of all worker fatalities in work zones were due to workers on foot being struck by a traffic vehicle.

The remainder were primarily fatalities not directly related to traffic. And these involved both workers on foot and operators.

We also found that there were more fatalities among workers doing road repair than among flaggers.

For the incidents occurring within the work zone, we identified two injury scenarios which involved inconsistency between occupation and work activity.

First, about one-fourth of the workers on foot struck by equipment were employed as operators. And over one-third of those killed while operating equipment were not classified in equipment operating professions.

What can be done to prevent worker injury and death in highway work zones?

With this analysis, we could only make a few general statements due to the amount of detail in our data source.

To prevent intrusion fatalities, minimizing the risks of contact between workers and traffic is the most obvious.

This can be achieved by planning the work so fewer workers are required to be in the area and by improving the devices that are used to separate workers and traffic.

Within the work zone itself, the flow of traffic can emphasize separation of workers on foot and equipment. The plan for traffic flow should minimize the need for backing up.

Ideally equipment operators should avoid becoming workers on foot. However, since they will sometimes need to leave their equipment, they should receive the same training for pedestrian hazards that is given to workers who are normally on foot.

Only workers who are trained, experienced, and authorized to operate equipment should be operating equipment.

Finally, there is new technology that shows great promise for preventing injuries to workers on foot in particular.

One example would be the sensors that detect the presence of persons or objects near the machine and alert the machine operator. Another would be hand-held radio transmitters that allow workers on foot to warn equipment operators that they are nearby.

Obviously, this is just a short list of intervention. And it can address work zone safety needs in only the most general terms.

What I am going to do in conclusion is to tell you about two activities in the NIOSH Division of Safety Research where we are collaborating with others in the area of work zone safety in trying to take this type of analysis a bit further.

The first one that I was directly involved in along with Susan Kisner and David Fosbroke is the work zone safety guidelines project.

What we are doing is we are developing safety recommendations based on input we received at a workshop last month.

Public comment will be requested in the next few months and other research.

Last month, we held a meeting that was attended by about 60 representatives from labor, industry, government, and research.

Before the meeting, we sent participants an issue paper that summarized research and recommendations in four broad topic areas: safety of workers on foot around traffic vehicles, worker safety around construction vehicles and equipment, internal work zone traffic control plans, and special issues associated with night work.

The cornerstone of the meeting was a full day of breakout sessions where we discussed issues brought out in the paper.

We now have a first draft of the guidelines that we will doing internal review on within the next month with the goal of having a public comment period from approximately March 1st to May 1st.

During that time, the guidelines will be posted on the NIOSH home page for public comment, copies will be sent directly to all who attended the workshop and to others who have expressed interest.

And it is also likely that we will put a notice in the Federal Register announcing the opportunity to comment.

We hope that the final version of the guidelines will be published near the end of 1999.

The other activity that addresses work zone safety issues is the Fatality Assessment and Control Evaluation or FACE Program. This is in the Division of Safety Research.

And Virgil is the Team Leader for this project. And he is available to answer questions if you have any about this particular project.

Through FACE, we conduct site investigations of work place fatalities.

FACE's objection is to identify work situations at high risk for fatal injury and to formulate and disseminate prevention strategies to those who can intervene in the work place.

Those who can intervene may be employers, trade, trade associations, manufacturers, or regulatory agencies, such as OSHA.

The FACE Project has been active since 1982 with the Division of Safety Research as an internal activity. And NIOSH has provided support for state departments of health and departments of labor to do fatality investigations since 1990.

This map shows you the five current in-house states or internal program. Those are the states that are covered directly by DSR investigators. And those are shaded in blue.

And the state-based FACE programs currently funded of which there are 15 are shaded in yellow.

NIOSH investigators have done over 600 fatality investigations in more than 30 different states since 1982. And the state FACE programs have conducted over 700 investigations since 1990.

The major components of FACE are surveillance to identify work place fatalities, field investigations, development of recommendations for prevention, and developing publications that provide prevention information to workers, employers, and safety professionals.

One of the major of the outputs of the FACE Program that many of you may be familiar with is the NIOSH Hazard Alert.

The major product of each fatality investigation is a narrative report that includes a detailed account of the incident along with recommendations for preventing similar incidents.

FACE recommendations are delivered from a research not a compliance perspective. FACE investigators obviously don't issue citations. And they are not responsible for determining who is to blame.

We use the results of the FACE investigations to develop publications, presentations, and other kinds of products that are targeted to specific groups at high risk of injury.

And we identify those through the investigations and compile results of investigations.

Finally, for several years, we have focused on investigating falls from elevations, machinery-related incidents, and logging incidents through the FACE Program.

Because a substantial portion of highway construction zone fatalities are machinery related, we have already done about 30 investigations in this area of work zone deaths.

But the change that we are planning for the near future is to make investigation of work zone fatalities a specific target of the FACE Program.

This means that we will be investigating as many work zone fatalities as we can. Also, our investigators will develop specialized knowledge in this area.

For example, they will become familiar with the Manual of Uniform Traffic Control Devices which specifies proper work zone set-up.

And we will also concentrate on identifying the specific pieces of information that ought to be collected on all work zone fatalities so that the reports we produce will be useful as possible to a broad audience.

That is my presentation. If there are any questions that I can answer or Virgil can answer, we will be happy to do that.

CHAIRMAN BURKHAMMER: Thank you, Stephanie. I appreciate your presentation. There was some interesting stuff in there.

I have asked Marie to get a copy of the presentation for the committee.

Questions?

Michael.

MR. BUCHET: On the work you did on refining your population, did you find crane operators in there at all, 670, whatever it is, 73 something or other?

MS. PRATT: No, we did not find a large number of crane operators. They would have been grouped under the operators of the -- I believe there is a specific code for crane operators.

Sometimes, we find the crane operator's code is operating engineers in general, but usually they are coded as crane operators.

There were not very many in this analysis, although I am very familiar with several investigations we have done through NIOSH that were crane-operator fatalities.

We have done a number of them that involved workers on foot who were killed when a crane collapsed onto them or onto another equipment operator.

DR. SWEENEY: I have one other comment.

CHAIRMAN BURKHAMMER: Marie.

DR. SWEENEY: Yesterday, we talked about fatalities in towers, communication tower construction.

Virgil has done a number of -- Virgil, do you want to show yourself?

Virgil has done a number of FACE investigations of fatalities due to tower erection activities. If you have any questions, please do not hesitate to ask him. He can give you all the details.

CHAIRMAN BURKHAMMER: Thank you, Marie.

Any other questions or comments for Stephanie?

MR. BUCHET: Yes.

CHAIRMAN BURKHAMMER: Michael.

MR. BUCHET: I certainly appreciated participating in the workgroups in December and was absolutely amazed that worker on foot has now become the working term.

There were 100 plus of us who were wondering what pedestrian safety had to do with inside the work zone. It confused a lot of people.

MS. PRATT: Well, you can see I've even remade my slides.

MR. BUCHET: Oh, yes.

MS. PRATT: Based on those comments. So we are paying attention.

MR. BUCHET: Good. It works very well.

MS. PRATT: Do you think that will be acceptable?

CHAIRMAN BURKHAMMER: Thank you. I am passing around the ACCSH list of members. And if you have e-mail address, put your e-mail address down. And Jim is going to add that to the list. And also, it is easier for me to get in touch by e-mail on a portable computer than it is to call you sometimes.

PLANNING NEXT MEETING OF ACCSH

CHAIRMAN BURKHAMMER: Prior to the public comment, and we have some, I want to talk about the next meeting of ACCSH. There has been some movement to have our next meeting in conjunction with the International Construction Safety and Health Conference in Hawaii.

VOICE: Second.

VOICE: Call for the question.

(Laughter)

VOICE: Call for the question.

CHAIRMAN BURKHAMMER: Just don't get carried away.

The meeting as you all know is April 27th, 28th, 29th, and 30th. A lot of the members of the committee are going to be there. Bruce is going to be there. It is a Construction Safety and Health Conference, so a lot of our constituency will be there.

I personally think it is a great idea. Bruce, even though he wouldn't admit it, thinks it is a great idea. That is why he is not here. But Bruce is also going to be there.

If there are no objections and we are able to solve a couple of administrative issues, I would propose to the committee that the next ACCSH meeting be held in conjunction with this.

The problem is the only day we have that is not taken up by the conference is Monday, the 26th.

So that would mean that we would have to travel on Sunday or prior to get there in time to attend the ACCSH meeting on Monday.

And we would have to condense our agenda possibly into one day which is difficult for this committee to do in a lot of instances because we have a lot of items to address.

With that, let's open it up for discussion. And I will entertain any comments regarding that.

Bill.

MR. RHOTEN: I will suggest if I had to work Sunday, that will be quite all right for Hawaii.

CHAIRMAN BURKHAMMER: All right. Good.

MR. RHOTEN: So if we could go Saturday.

CHAIRMAN BURKHAMMER: Does anybody see any reason why we couldn't this?

Larry.

MR. EDGINTON: Well, I guess the only concern I would have is that there are some of us who have been planning workgroup meetings in conjunction with the next meeting. And that may make it extremely difficult for some workgroup participants.

CHAIRMAN BURKHAMMER: That is true. You would have to have -- you would have to plan your workgroup meetings in advance of the ACCSH meeting and have there here, so the greater portion of the participants could come to the workgroup meeting.

MR. COOPER: But, Mr. Chairman, that is one of the reasons that we have gone to e-mail.

I will be at the conference regardless. So that will be fine with me. I speak at the conference.

CHAIRMAN BURKHAMMER: How many of us are going to the conference? Just raise your hands so I can get a count.

(A show of hands.)

CHAIRMAN BURKHAMMER: One, two, three, four, five, six.

VOICE: Kind of seven.

CHAIRMAN BURKHAMMER: For those of you that you were not planning, does this pose a great hardship on you if we were to have the committee meeting?

Bob?

MR. MASTERSON: No.

CHAIRMAN BURKHAMMER: Felipe, Jane, Owen?

(No response.)

MR. RHOTEN: I'll try to tough it out.

CHAIRMAN BURKHAMMER: Steve?

(No response.)

CHAIRMAN BURKHAMMER: All right. Hearing no objection, we will schedule the next ACCSH Committee meeting -- we will suggest to Bruce that the next ACCSH Committee meeting be held in Hawaii in conjunction with the International Construction Safety and Health Conference, Monday on April 26th, 1999.

MR. COOPER: I would point out, Mr. Chairman, it would be a hardship for me because I was coming in Saturday and be on the beach Sunday. So --

(Laughter)

MR. SWANSON: A comment that I should make, I should bring it to your attention that the Assistant Secretary will not be in Hawaii and therefore would not be part of this ACCSH meeting. And both this committee and the Assistant Secretary voiced a preference that he be at each of your meetings. So I have to underline that. This move will keep him out.

CHAIRMAN BURKHAMMER: We would be happy to accept his comments through you if you intended, if you would like to do that.

MR. RHOTEN: Even a conference call could probably work.

CHAIRMAN BURKHAMMER: Well, I'm sure Michael might be able to make a -- if he wanted to show up, Michael can squeeze him in on the conference agenda.

MR. BUCHET: I am sure we can squeeze him in on the conference. And we might remind ourselves that we pledged at the very beginning of this that we were going to attempt to move some of these meetings around the country to open the meetings to new members of the public.

CHAIRMAN BURKHAMMER: And this would allow us with a lot of the construction hands-on people coming to this conference, and there is quite a few coming to it that it might give some fresh comments to the committee with people coming in and hear some ideas and new things.

So with that, we will schedule the meeting for Monday, April 26th in Hawaii.

Public comments. Rich Pfau.

Jane.

MS. WILLIAMS: I might just offer one comment with the presentation that we had yesterday on small business, he was talking about a March 4th date and having us come here. We've already had some preliminary dialogue. And maybe having the workshops, the workgroup meetings in conjunction with that meeting would certainly then accommodate the concern of having our meetings prior to going to there.

CHAIRMAN BURKHAMMER: Yes, that's an excellent point, if you remember Charles' comment about the small business liaison meeting in March.

For those of you committee members who -- or committee chairs who want to schedule a meeting for that week, get with Luna and we will get with Jim.

And make sure now, remember the 30-day advance notice rule. So I would like to have the chairs advise me of any meetings and the dates of those meetings no later than two weeks from today so we can get it out and get everybody knowledgeable that the meetings are taking place, where they are taking place.

Jim, also, well, it wouldn't apply, Jim, about the holiday. And so you can scrap that for the next meeting.

Michael, is there a hotel preferably for the conference? Or how would you recommend we do this?

MR. BUCHET: The conference will be at the Sheraton Waikiki. We have got discount room rates, but they are obviously not the government room rates, but they are not much more expensive than what's going on here in D.C. 165 bucks gets you a view of the mountains. And 205 gets you a view of the ocean.

There are also, we have a conference rate with the United Airlines. And you would have to check because the prices have been going up and down for Hawaii since we got it, but it is a discount off their published rates.

So if you need information on that, you can either get a hold of me now. And I have a few brochures. Or go to the Council's web site, http://www.nsc.org. And on the front page --

CHAIRMAN BURKHAMMER: You want to do that a little slower?

MR. BUCHET: nsc.org. On the home page, there is a link that will take you to the conference. It has the full agenda and has a downloadable registration form and has hotel and discount airfare information.

MR. SMITH: Mike, you know, that street that's right along where the Sheraton is. They have about eight or nine Beach Combers.

And they have some very good rates. You can get in there for generally for less money than you pay for lunch at the Hawaiian Village which is right next door.

CHAIRMAN BURKHAMMER: Yes, but you've got to --

MR. BUCHET: I'm going to leave that up to your devices.

CHAIRMAN BURKHAMMER: You've got to be careful because at the last meeting we had away, they have a steel drum guy who stands in the corner across the village.

(Laughter)

CHAIRMAN BURKHAMMER: And it plays it until 2:00 o'clock in the morning. So you do not want a room above the steel drum player or you will not sleep well.

PUBLIC COMMENT

CHAIRMAN BURKHAMMER: Okay. Mr. Pfau.

MR. PFAU: I'm Rich Pfau from -- the Corporate Safety Director from the Donohoe Companies and also the Safety Committee Chairman for the ABC Metro Washington 410 members.

It is now been my privilege for about, this is probably the fourth meeting that I have had a chance to interact with you folks.

And I have become active on several of your workgroups and feel that the process as maybe I go into that category that Steve just remarked about, one of the hands-on folks.

And this, as I said in other public comment, this is an opportunity for those of us that actually have to be regulated to perhaps steer and direct some of the activities.

I noticed something though this morning. And that's why I asked Mr. Burkhammer if I could comment.

When we talked about sanitation, the workgroup did marvelous things. And I think overall, we really do need to improve this.

And I think Marie's comments regarding the hand soap. We are using that over in Virginia which is a local issue.

And it has worked very, very well, despite the fact that the Public Health folks over there really do not want them to allow them to use it. The OSHA folks like it, but the Public Health don't. These things are all necessary.

But I wonder if we might want to consider something. And we are doing that in one that I am very interested in which is Mr. Devora and Ms. Williams' group, the multi-employer.

That started out with the material presented by Milicon and those things that we have worked on since then in a performance standard.

And I wonder if you might want to consider this morning what you did with the sanitation in that that has almost become a vertical standard, very specific, things that OSHA as policy now are not doing or shouldn't be doing.

And are we, as the persons who -- to OSHA, creating a problem that they themselves are not supposed to be getting into anymore, just a thought.

The other thing that I would bring to your attention -- and, Bruce, I know this is not what you intended.

But there is a lot of folks out here that were new today. And the comment came up that when you did make a comment and you were responding to someone that OSHA -- and I'm paraphrasing, OSHA will write the standard as they see fit.

It kinds of makes you -- and I know you didn't mean this, but it can be misconstrued out here that the ACCSH process is really not something that we, you know -- we're just going through the motions here.

And I just would remind you that it did come out that way. And I am sure you did not mean it that way, but it just did come out that way.

And I just thought I would bring it to your attention because I do think -- and I started this off and I will finish it that way. This is a marvelous opportunity for those of us that are regulated to share our thoughts with you either through the workgroup or through public comment.

Thank you, Mr. Chairman.

CHAIRMAN BURKHAMMER: Thank you, Mr. Pfau.

Currently being passed around is the revised sanitation document as we passed it this morning with the revisions included. This is your copy of the revised passed document that we are presenting to Bruce and OSHA.

Bruce.

MR. SWANSON: Yes. In case there are still a few in the crowd that might have been bothered by the way I presented that, really what I meant by my comment was we can spend in here in ACCSH drafting today. And we can spend 20 minutes on whether the OSHA standard should use the word "should" or the word "shall".

It is not, as I tried to imply, a very good use of time because OSHA will not write a standard with "should" in it.

The standard will have "shall" in it or it won't appear. The standards are mandatory. And that is just a rule of draftsmanship. And that is what will happen.

And whether something goes in (f)(2) or gets moved to (g)(3) is really something that when after the public has commented on this a year from now or whatever the timeframe happens to be after we go on the street through the Federal Register and we hear from 900 other people with their comments, we are bound by the record.

And so when I say OSHA will draft it as it sees fit, OSHA will draft it. And if that sounded sarcastic, I apologize.

OSHA will draft it as OSHA is forced to draft something under the Administrative Procedures Act and bound by the court rulings and everything else.

And if someone else took some other meaning from my sentence, I'm sorry. Thank you.

CHAIRMAN BURKHAMMER: Thank you, Bruce, for that clarification.

New business.

Mr. Cooper.

MR. COOPER: Under the comment that was just made, I certainly agree with your comments just spoken.

This committee is an advisory committee by law. And OSHA is a regulatory committee, a group that has the responsibility by congressional act to regulate.

So we all understand Bruce on this committee that we would like to very much to advise you very often.

(Laughter)

MR. COOPER: And if you would occasionally take our advice.

I want to thank you, Bruce, for the excellent response. And I don't often thank the Directorate for too much, but the assistance of Karl from your office who has been very good.

And he is new to our committee. And within a few moments has redrafted the document and got it back right away which is the way we like to do business. And thank you very much. And it is a nice change.

CHAIRMAN BURKHAMMER: Bill.

MR. RHOTEN: Just as a second maybe on your remarks, you know. I sit on this board as an advisor, too. And I have never had any illusions that I was participating in writing a standard, although we thought we were a few times.

I think we -- myself in any case, I think whatever expertise I have, I'm sure that even as a group that we are not going to be able to come out of here after debate with a complete standard. I never had any illusions about that.

And I appreciate your remarks. The experts are going to look over everything we present.

CHAIRMAN BURKHAMMER: I think it is worth noting. And Steve and Cloutier and Steve Cooper and I have been around this committee for a long time, Steve Cooper probably longer than any of us.

And over the years, if you look back at the participation of this advisory committee, there were times over the years when it was looked at as a nonparticipant.

We would -- the committee would get things as an afterthought or there was no thought. We would get things after they had already been published. And they would show up and talk about it as kind of a throw that dog a bone, you know.

But when Bruce took over the Directorate of Construction, one of the things we have talked about for years, a lot of us, was having a central place where construction had a home. And it was where we could all go to and get some response.

And I think under Bruce's leadership -- and this is not a paid political announcement.

But I think under Bruce's leadership, we have achieved that. And I think this committee now has looked and has utilized more than it has ever done before.

And I think it is all due to the hard work of the committee members, the co-chairs, the diligence that you all put into your work and your deliberations, the participation of the public, and the comments that you all implying into the work that we are doing, the openness.

Even though some may think it is a dictatorial relationship, it really isn't. It is an openness relationship.

And I think we have come a long way. And I am really pleased to be a part of this. And I want to thank each and every one of you, along with Bruce for making it happen. And that's where we're at.

With that, adjourned.

(Whereupon, at 12:10 p.m., the meeting was concluded.)

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting of the U.S. Department of Labor, Occupational Safety and Health Administration, Advisory Committee on Construction Safety and Health, Volume 2, held on January 29, 1999, were transcribed as herein appears and that this is the original transcript thereof.

SONIA GONZALEZ
Court Reporter