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OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

ADVISORY COMMITTEE ON 
CONSTRUCTION SAFETY AND HEALTH

U.S. DEPARTMENT OF LABOR
 
Rooms N-5437 - B, C & D
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 21210

Wednesday,
October 7, 1998

The meeting was convened, pursuant to notice, at 9:10 a.m., Mr. Stewart Burkhammer, Acting Chair, presiding.

APPEARANCES:

EMPLOYER REPRESENTATIVE

STEWART BURKHAMMER
Vice President & Manager of Safety
and Health Services
Bechtel Corporation
9801 Washingtonian Boulevard
Gaithersburg, Maryland 20878
(W) 301-417-3909
(FAX) 301-208-0636

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

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

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

OWEN SMITH
President
Anzalone & Associates
12700 Foothill Boulevard
Sylmar, California 91342
(W) 213-877-8291
(FAX) 818-837-1040

EMPLOYEE REPRESENTATIVE<

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

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

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

STATE REPRESENTATIVE

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

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, Nevada 89703
(W) 702-687-3250
(FAX) 702-687-6150

PUBLIC REPRESENTATIVE

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

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

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, Ohio 45226
(W) 513-533-8339
(FAX) 513-533-8230

COMMITTEE CONTACTS

BRUCE SWANSON
(W) 202-219-8644
(FAX) 202-219-6599
(Internet) BruceSwanson@osha.gov

SARAH SHORTALL
Office of the Solicitor
(W) 202-219-7711 Ext. 154
(FAX) 202-219-7147
(Internet) shortall-sarah@dol.gov

OTHER ATTENDEES

CHRIS TRACHAN
CPWR
111 Massachusetts Avenue, NW
Fifth Floor
Washington, DC 20001
(W) 202-962-8490
(Internet) ChrisTrahan@compusa.com

MIKE HAYSLIP
Lithco Contracting, Inc.
5353 Hamilton-Middleton Road
Hamilton, Ohio 45011
(W) 513-863-5100

JANE HOWARD
Bechtel
1015 15th Street, NW, #700
Washington, DC 20005
(W) 202-828-7374
(Internet) jahoward@Bechtel.com

DAVID DELORENZO
NAHB
1201 15th Street, NW
Washington, DC 20005
(W) 202-822-0507
(Internet) ddelorenzo@nahb.com

TRACY SORINE
OSHA/CSCA
N3621
200 Constitution Avenue, NW
Washington, DC
(W) 202-219-7207 ext. 127
(Internet) Tracysorine@osha-no.osha.60

CARL SALL
OSHA/CSCA
National Office (N-3427)
(W) 202-219-8429 x 137
(Internet) ih_safety@hotmail.com

JOHN HERZOG
ACCA
1712 New Hampshire Avenue, NW
Washington, DC 20008
(W) 202-518-3212
(Internet) Jherzog@acca.org

DUGIE STANDEFORD
Inside OSHA
1225 Jefferson Davis Highway
Suite 1400
Arlington, VA 22202
(W) 703-416-8574

DONAL FILE
L.F. Driscoll Company
(Internet) dfile@philly.infi.net

KEITH MATERNE
NAHB
(W) 202-822-0309
(Internet) Kmaterne@nahb.com

PETE CHANEY
MCAA
1389 Piccard Drive
Rockville, MD 20850
(W) 301-869-5800

RICHARD K. PRAU
Donohue Construction Corporation
(W) 202-625-4186
(Internet) richardp@donohue.com

RALPH D. RILEY
Associated Builders & Contractors
1300 N. 17th Street
Rosslyn, Virginia 22209
(W) 703-812-2024
(Internet) rriley@abc.org

CHARLIE BIRD
Centex Construction Company
10700 Eaton Place
Suite 300
Fairfax, Virginia 22030
(W) 703-218-1363

JULIE WILKIE
National Roofing Contractors Association
824 Fourth Street, NE
Washington, DC 20002
(W) 202-546-7584
(Internet) jwilkie@roofonline.org

CARL HEINLEIN
AGC of America
1957 E Street, NW
Washington, DC 20006
(W) 202-383-2732
(FAX) 202-347-4004
(Internet) heinleic@agc.org

MARC FREEDMAN
Painting and Decorating Contractors of America
3913 Old Lee Highway
Fairfax, Virginia 22030
(W) 703-359-0826
(FAX) 703-359-2576
(Internet) mfreedman@pdca.org

DAVID POTTS
NECA
3 Bethesda Metro Center, #100
Bethesda, Maryland 20814

OTHER ATTENDEES:

ASSISTANT SECRETARY CHARLES JEFFRESS
JIMMY ROBERTS
EDITH NASH
BOB HAMMOCK
ADAM FINKEL
TOM GALASSI
ELLEN ROZNOWSKI
RICHARD FAIRFAX
THERESA LUIE
NOAH CONNELL
ELISE HANDELMAN

I N D E X
 
PAGE
WELCOME, INTRODUCTIONS
Stewart Burkhammer
10
ACCSH WORKGROUP REPORTS
* Scaffolding
Michael Buchet
18
* Confined Space
Steve Cloutier
246
* Data Collection
Marie Haring Sweeney
42
SPECIAL PRESENTATIONS
* Interactive Training for the Construction Industry
Jimmy Roberts
53
* Silica PEL
Edith Nash
84
* Respirator Standard - Final Rule
Adam Finkel
90, 168
* Decontamination/Sanitation
Jane Williams
252
* Musculoskeletal Disorders
Marie Haring Sweeney
116
* Safety and Health Management Standard Training
Steve Cloutier
121
* Subpart N - Cranes
Larry Edginton
118
OTHER PRESENTATIONS
* Heat Stress Update
Elise Handelman
214
* Multi-Employer Worksite Policy - Clarifications
Noah Connell
224
Recess 258

 
P R O C E E D I N G S
 
WELCOME AND INTRODUCTIONS

CHAIRMAN BURKHAMMER: Good morning. Welcome to the ACCSH meeting.

We will start this morning by going around. Larry, would you introduce yourself? Then we'll go around the committee, then the audience, and see who we have with us this morning.

Larry?

(Whereupon, introductions took place.)

CHAIRMAN BURKHAMMER: Great. Thank you.

Before we get started, Bruce, do you have an announcement?

MR. SWANSON: Yes. I'd like to deal with a small safety matter that I have reason to believe might be relevant before the day's over, or at least the meeting is over tomorrow.

For purposes of fire escape, as you exit this room by either door you will see that there is a stairwell here. I think this is number five. And there's a stairwell down there, number 17. We're on the fifth floor.

Those two stairwells, either of them will take you down to the lobby. Exit at the lobby level. If you're taking the eastern stairwell you will go out onto a small plaza. To move away from the building, which we wish you would, you would move east. There are two small bars. I don't know what time they open.

(Laughter)

MR. SWANSON: Those that use this stairwell, you will exit by the water fountain. Across the street from us is the U.S. District Court, and that's always so crowded for the last year or so that there won't be room for you over there anyhow. So, just cross the street and stand and wait until you're called back.

Those of you who cannot manipulate the stairs, as Mr. Buchet has alluded he might have trouble this morning, the elevators will be manned by a fireman in the case of fire. Or, in the case of a drill, which is always possible, it will be manned by one of the maintenance engineers playing the role of a fireman. Please wait until there is a manned elevator, a live operator in the elevator before you take the elevator down to the lobby level and then exit by either door.

Thank you.

CHAIRMAN BURKHAMMER: Thank you.

Before our first report, I want to take a few minutes and talk about a subject that is near and dear to a lot of our hearts, and that's the workgroups. As you know, or a lot of you know, we have scheduled workgroup meetings this past week, yesterday, and we had some previously and a couple of weeks before the committee met.

We had a very poor turnout at the workgroups. So, I've tried to inquire as to why that happened, and we found out that there was some notification, which is getting people to know that the meetings were held.

Yesterday, at the Musculoskeletal Disorders and Construction Workgroup we had one representative from the associations, and Mark did an outstanding job representing all of you that were not there. He held the line. But, seriously, it's a concern.

What we'd like to do, at the first break, outside on the table there will be a sheet of paper with the heading of every workgroup on it. We would like those of you that want to participate in the workgroups to pick the one, or more than one, that you want to participate in, fill out your name, address, phone number, fax number, e-mail numbers, so we have the right amount of knowledge to get to you to notify you of these meetings.

Also, I think it would help if we put the notifications of the workgroup meetings in the Federal Register. Bruce, is there a concern of why we can't do that, or do we need to vote to recommend that to you?

MR. SWANSON: The only problem that I see with the Federal Register, and I don't mind using that approach, but the timeliness of it is such -- our time requirements, and to start the sign-off procedure here in the Department of Labor before we can actually get the thing published in the Federal Register, you should reasonably be looking at 30 days anyhow. Do not plan on scheduling any workgroups with less than 30 days' notice.

CHAIRMAN BURKHAMMER: Okay.

MR. MASTERSON: Stew, is it possible, if we can't get it into the Federal Register, it could be posted on the web page?

CHAIRMAN BURKHAMMER: Yes, that's doable.

MR. MASTERSON: Because I think most people will have access via the Internet to that web page.

MR. SWANSON: That also is workable, Stew. Might I suggest, though, that maybe some of us sit down and find out what's broken. I mean, these are good solutions, but I'm not sure what went wrong this time with the notifications.

So maybe we should walk back through the workgroups; when did notice go out, who did not get notice, and why didn't they. I know there's a problem with the workgroups.

CHAIRMAN BURKHAMMER: Yes. One other thing, Jane, before I call on you. I've asked Sarah to kind of go through one more time so we all understand the purpose of the workgroups, what their charter actually is, and how they work. Sarah?

MS. SHORTALL: Well, the workgroups themselves are not directly mentioned statutorily, other than the right to create workgroups. In all three, both in the OSH Act, our own rules governing advisory committees, which can be found at 1912, as well as the Federal Advisory Committee Act, it does require that all committee meetings be open to the public, as well as notice being given.

I would imagine your issue of, Bruce, being concerned that there's not enough lead time. We have a real difficulty scheduling rooms here. It could be handled with a blanket statement in a Federal Register notice that simply indicated that, for workgroup committee information, please consult the OSHA web page. I think that would cover the statutory requirements.

CHAIRMAN BURKHAMMER: Jane?

MS. WILLIAMS: Mr. Chairman, I have some concerns, as I think all of us do, on the entire process. In discussing this and thinking about it, I would move the formation of a workgroup guidelines task force to establish guidelines to facilitate ACCSH workgroups, such guidelines to be in two parts. Part 1, to establish the functions and responsibilities of OSHA to facilitate ACCSH workgroups; and Part 2, establish the function and responsibility of ACCSH workgroups as chair and members.

My thought is primarily to get us all on the same track so we know who to turn to for what, and that we can do so within a reasonable period of time. I'd also like to see this group report back with a draft for this committee by its next meeting.

CHAIRMAN BURKHAMMER: Any discussion on that?

MS. WILLIAMS: I would volunteer to chair. I would ask you, Stew, if you would co-chair it.

CHAIRMAN BURKHAMMER: Do we have a second to that motion?

MR. MASTERSON: Aye.

CHAIRMAN BURKHAMMER: Bob seconds. Discussion?

(No response)

CHAIRMAN BURKHAMMER: The motion stands, seconded. All in favor of the motion, signify by saying aye.

(Chorus of ayes)

CHAIRMAN BURKHAMMER: Opposed?

(No response)

CHAIRMAN BURKHAMMER: The ayes have it.

Jane, if you'd write that motion out for us and then give it to me.

MS. WILLIAMS: Okay.

CHAIRMAN BURKHAMMER: Jane has agreed to chair that workgroup. I will participate in the workgroup, although not as the co-chair. I'd like another co-chair, possibly from Labor, for that.

MR. CLOUTIER: I will.

CHAIRMAN BURKHAMMER: Steve, did you volunteer? Thank you.

I will title that the ACCSH Task Force Workgroup, right? Is that the title you meant?

MS. WILLIAMS: Yes.

CHAIRMAN BURKHAMMER: I think, you and Steve, if you could sit down sometime with Bruce and help him answer the question he asked a few minutes ago about what's broken, maybe we can come up with something about why it's broken and we could work from there.

Okay. Let's take a look at the minutes from that last meeting. It's in your packet that was sent to you.

(Pause)

CHAIRMAN BURKHAMMER: Are there any comments about the minutes from the previous meeting, any additions, corrections, or changes anybody would like to bring up?

(No response)

CHAIRMAN BURKHAMMER: Motion to approve?

VOICE: So moved.

VOICE: Second.

CHAIRMAN BURKHAMMER: All in favor of approval of the minutes from the last meeting, signify by saying aye.

(Chorus of ayes)

CHAIRMAN BURKHAMMER: Opposed?

(No response)

CHAIRMAN BURKHAMMER: The minutes are approved.

If you would take out your agenda. We'd like to start this morning with a report from the Scaffolding Workgroup, Michael Buchet and Owen Smith.

Mike?

ACCSH WORKGROUP REPORTS

SCAFFOLDING
 
By Michael Buchet and Owen Smith

MR. BUCHET: Good morning. Owen, please feel free to chime in. Any of you in the audience who were there, if I mischaracterize what we went over, please jump in.

We had a fruitful workgroup meeting yesterday and have come forth with a recommendation. Being the new guy on the block, I have no idea how much work it took to create this, although I understand it was substantial.

The final document, which I believe copies are available for us in our packets -- how about for the audience, have they got copies?

CHAIRMAN BURKHAMMER: There were some handouts.

MR. BUCHET: There are some handouts. It was unanimously approved. This is for a draft Appendix B to Subpart L. At the pleasure of the committee I won't read every word of it, but what I will do is pick out some of the paragraphs where the last workgroup's work product was changed.

Basically, we left untouched the last workgroup's work product and we worked from a set of notes and comments that had been submitted as the charter for ACCSH folded. We decided to confine ourselves to simply making those adjustments and not reopening the discussion.

If you look on the first page under access, there is a Subparagraph 1. The paragraph underneath that, we added some new material which I think added to the usefulness of this document.

It starts, "A competent person should determine that any structure used to provide access is stable and capable of withstanding the additional loads placed on it when used as access."

In the discussion, it came out that there was a possibility that, even though a structure had been properly braced, that as a person stepped from the structure to a scaffold next to it which had also been properly braced, that because of the horizontal loading, there was a chance for the tower scaffold to move.

So we added some language there that reads, "Ensure that the scaffold will not move relative to the structure." So you don't have this person with one foot in each place performing a split as they fall in between the scaffolding being erected and the sturdy structure that is being used for access.

We continued making little tweaks like that as we went along to produce a document that we hope will serve as a one-stop guide. If you read through this, it will give you some pointers of where to look and how to perform erection and dismantling.

On page 2, in Number 3, and it's the second paragraph of Number 3, we simply cleaned it up because in the last draft it wasn't clear that we were talking about hook-on or attachable ladders. That was simply cleaned up.

At the bottom of that page, on page 4, and you can see that we run through access, we run through fall protection, and then we came up with a catch-all requirement as part of the general structure.

One of the questions that remains, and Jim Boom and I are working and we will get to the workgroup -- I'm racing way down to Number 4, is what a man lift is, a people lift, a person lift.

The discussion revolved around possibly erecting or dismantling scaffolding out of an aerial work platform. It became very apparent very quickly that aerial work platforms were not the only lifting devices which might carry a person to deliver them to a scaffold. It might be that they would work out of whatever these other devices were.

So the word "man lifts" is not properly descriptive, and we need to come up with one. The idea is that there are additional concerns when using some sort of equipment to lift workers into place to erect, dismantle, or to use as access.

What are some of the concerns? The concerns are, the equipment might bang into this partially erected scaffolding. The concerns are, the equipment might be so heavy that it would change the ground underneath the mud sills for the scaffolding. That sort of is the two big ones, that for some reason the equipment might unstabilize what is being worked on, and that needs to be looked at.

But we need to come up with a term that describes all the equipment we're talking about when we recommend this for approval by the full ACCSH to OSHA, that that is a point we understand needs to be refined.

At the bottom of that Number 4, you can see that we added some language that has tried to explain our concern. "Similarly, poor ground conditions could result in the scaffold foundation being displaced when a man lift is too close to the scaffold or the man lift settling and contacting the scaffold."

Now, if you picture that, certainly with some of the articulating extending boom work platforms, aerial lifts, there's a possibility that it's not only the ground right next to where the scaffold is being built, but it could be the ground 60 feet away that settles under the wheels or the carriage of the piece of equipment.

Of course, you have that long arm, with a six-inch drop at the wheels, and if the basket is out at 60 or 70 feet, it's going to propel the basket and the operator of the basket considerably a greater distance with more speed and more force into the scaffold tower.

So, there are concerns that--and I'm repeating myself again and again because we went over it that many times--should be considered when considering whether to use these pieces of equipment or not.

If any of you are familiar with the old draft, on page 3 we took out a whole footnote, and then replaced it as part of the document in principal. This is non-mandatory appendix. It's supposed to be useful and advisory. And to wander your way through a series of paragraphs, subparagraphs, more subparagraphs, and footnotes just doesn't seem to be that useful.

The other feeling was that, in reference to 1926.502, that we wanted the language but not necessarily appointing people. You have to go find that in another document and read it there. So this was a housekeeping and user-friendly modification that we have made.

When we get to page 4, which is --

CHAIRMAN BURKHAMMER: Mike?

MR. BUCHET: Yes.

CHAIRMAN BURKHAMMER: On that second paragraph, on three, you've got a sentence in there about halfway down that says, "However, as the scaffold increases in length." Do you mean height or length? You mean height, right?

MR. BUCHET: No, length.

CHAIRMAN BURKHAMMER: Length.

MR. BUCHET: If you have a fixed anchor point with a vertical lifeline and somebody has to traverse a great length, then you've got the conflict of criss-crossing lifelines, or a pendulum when the guy falls and he's way out from under the anchor point.

CHAIRMAN BURKHAMMER: Okay. Thank you.

MR. BUCHET: Page 4 created the most discussion. We have to thank the Center to Protect Workers' Rights and Chris Trahan for asking some very useful questions in driving the discussion. We ended up reordering the page and doing what a lot of people will end up doing unless this gets printed in a slightly different manner.

I ask you to look back at page 2. At the bottom of page 2 it starts out, "Fall Protection." Then you read all of page 3, and in the middle of page 3 we start a catalog of suggested pieces. I will read that to you, then we'll jump to page 4 and talk about what we did there.

"Since there are a very large number of variable conditions which could affect the feasibility of providing fall protection for scaffold erectors or dismantlers at any given work site, the Agency has decided to provide the employer/competent person with the following criteria to consider when making this determination.

(The competent person may have to consult with a qualified person, that is, a professional engineer, manufacturer, etc., in order to obtain the information necessary for items 1-4 below.)"

Then we go back to page 4. We renumbered page 4 to make it more useful. We had considerable discussion on a variety of issues. I'm going to read two, three, four, and nine because those capture what we were most worried about, and present what the workgroup thought was a hierarchy of approaches.

This is Number 2. "When suitable anchorages are not available for personal fall arrest systems, alternative fall protection should be provided, where feasible." Two tiers. The third tier. "When the alternatives are not feasible, specific erection and dismantling procedures and training should be provided."

The discussion centered around the issue of what people normally think about when we talk about alternative fall protection. Many people in the room, I think, like myself, jumped to the conclusion that we were discussing some sort of physical device.

We put this language in here to highlight the fact that at some point a physical device, a personal fall arrest system, the anchors may not be available, lifting devices may not be feasible, that we may have to rely on a very precise step-by-step procedure.

This was put in there to highlight our concern that the procedures need to be planned for, well though out, and that the workers doing the erecting and dismantling have to be fully trained on what those procedures are, and then watched as they perform the work to make sure they follow the procedures.

Number 3. "Whether the use of outriggers, braces, ties, guys, and similar equipment can be used to secure, stabilize, or reinforce the scaffold or the structure so that an adequate anchor can be provided."

At this point, I'd like to digress from this to a report that Dave Fosbruck from NIOSH gave the workgroup. As you know, NIOSH has taken on the task of performing testing on scaffolding and at one point early in the deliberations about pulling this workgroup together we had a consideration on the table to wait until NIOSH's results came out, and they would decide for the world whether it was safe to use scaffolding for anchor points or not. Let me clear that one up right away: NIOSH is not going to decide that.

The second point, is on the timeline, the process, as reported yesterday, is in the formative stage. By the end of this fiscal year, NIOSH hopes to have done some test drops for the purpose of defining their testing protocol, not for testing scaffolding, simply to see if the test protocol accurately replicates the conditions that will be faced in the field.

So, by this time next year, NIOSH hopes to begin testing. Now, development of the test protocol requires designing it, sending it out for peer review, getting the input from the industry, doing some test drops on it, finishing and refining that. As he said, they hope to start doing real drops next year.

Now, what do they hope to do on the real drops? As it stands now, what NIOSH is looking to do is create a series of scaffolds--we're not entirely sure what type, what description, how tall, how wide, how long--and then testing them with a calibrated drop, or drops.

The results of that will be tabulated in a database. The database will then be made public with comments to be used as a resource by the competent person, by the manufacturer, by the erector-dismantler, by the engineers when deciding whether they should or should not use a particular configuration of scaffolding with a particular base as an anchor point.

So Number 3 highlights all of that. One of the main reasons we went ahead and didn't wait for NIOSH, is with the testing itself, once they start this time next year, would be three years plus to complete. The reason for that is largely a question of resources.

There are apparently six NIOSH people working on that, and every one of them I believe is part-time, so you end up with the equivalent of maybe one or one and a quarter people working on this full-time.

So they are working hard. They are looking for input from the industry on how to set these tests up. It sounds like we're on our way to getting some useful data.

Let's go back to where we are. The warning. I think the warning stands out by itself. You can look at that. It is a caution to have a professional engineer, competent in the field, evaluate the design and the erection procedure of the scaffold, again, in determining whether anchorages are appropriate.

Again, a digression. We had a request from Gary Larson, who could not make the meeting, who represents the Scaffold Industry Association to read a policy statement that they have created. One of the key points of his policy is contained in this warning.

Number 4, we left untouched. But, again, it is a consideration where consulting experts, or the manufacturers, or engineers may be appropriate. "Whether or not the addition of outriggers, braces, ties, guys, additional scaffold, additional stairways, the installation of fall arrest equipment would increase the exposure time for erectors and dismantlers to situations where fall protection/fall arrest means cannot be provided."

We were trying to say there that, in the erection of a scaffold, say you're going up the outside of the Washington Monument and it is predicted to take X hours and has X risk of fall, if you design safety into it, or attempt to design safety into it by putting nets or catch platforms, or going up the outside of the tower to begin with to put anchor points, are you exposing the erectors/dismantlers to more time of exposure by having them put the fall arrests or the protective device, whatever it may be as an addition, than you would if you just had them build the thing without it?

So there was a concern there that the ultimate job may be very safe, but you may actually have exposed the worker to more risk of falling in making the job safe, and isn't that sort of a contradiction in goals.

One, is to make the process of erecting or dismantling safer for the worker. So, that was a consideration that we felt needed to be brought out. That is obviously going to be a balancing act, as with many others, that will be site specific.

Number 9. Because of the outline of the document, Access, Fall Protection, and General Work Requirements, we felt that Number 9, which is brand-new material for the discussion of fall protection but is not new material for the concerns of the workgroup, should be added. That is the refrain, "Use of man lifts or similar equipment has the potential of creating a hazard."

The hazards sort of fall into the following groups. A small miscalculation in raising or lowering the equipment could result in the equipment contacting the partially-erected scaffolding, causing it to collapse. Similarly, poor ground conditions could result in the scaffold foundation being displaced when the man lift is too close to the scaffold.

CHAIRMAN BURKHAMMER: Michael?

MR. BUCHET: Yes.

CHAIRMAN BURKHAMMER: Isn't that wording similar to Number 4 on page 2?

MR. BUCHET: Yes.

CHAIRMAN BURKHAMMER: Is there a reason it's in there twice?

MR. BUCHET: Yes. One, primarily because of the structure of the document. We realize that this is a recommendation that will get wordsmithed. But, because we were doing access as a topic, and then fall protection as a topic, we felt it was necessary to mention this in both places.

CHAIRMAN BURKHAMMER: Okay. Thank you.

MR. BUCHET: That caused considerable discussion for exactly the question you raised. The consensus that we arrived with is that, in making this user friendly, if somebody were to open to Fall Protection and read through it and didn't know that they had to go somewhere else to find this cautionary note, they would miss the note.

The discussion was centered on--I wouldn't say it was completely focused on--the idea of using an aerial work platform, somebody in it wearing a harness, hooked to the aerial work platform, climbing out onto a scaffold while they're still hooked to the platform.

Unfortunately, that happens. Unfortunately, it probably shouldn't happen. If they're going to use it as access that way, they've got to get out and there has to be something suitable where they end up. So, we had some concerns.

General Work Practices. This is a compilation of cautionary notes. This is material that is covered somewhere else, but we thought it was important again to pull it in here to make this a useful document. "Restrict access to leading edge locations to only trained and experienced employees. Erectors and dismantlers should have no other duties during the erection and dismantling processes. All scaffold should be adequately braced before being used."

We had a lot of discussion on this one. What does it mean? Simply put, it means, make a good foundation before you build the first floor. So if you're going up, you want to finish the lift that you're at before you start going up to the next lift, up to the next lift, up to the next lift. That was all that we meant about that.

Being used. It depends what you're using it for. If that is going to be a work platform and then you're going to build another work platform on top of it, I think the sense of the group was, you finish out where you are before you go up.

If it is simply going to be a walkway, then you're going to put on all the bracing that's required before you go up. The idea is to work from something that is as stable as can be made before you go out or you go from it.

Number 4. "Erectors/dismantlers should remain on structurally sound and stable portions of the scaffold while erecting or dismantling other portions of the scaffold." We're driving that point home.

"Employees not involved in erection or dismantling should be kept clear of the area where scaffolds are being erected or dismantled.

Materials should be staged to minimize fall hazard and to permit safe access.

Determine whether erection/dismantling operations should be suspended during strong winds or inclement weather."

Owen, do you want to add anything?

MR. SMITH: No.

MR. BUCHET: Any of our workgroup members want to add anything at this point?

MR. DEVORA: Mike?

MR. BUCHET: Yes.

MR. DEVORA: Let me ask you a question. You alluded to man lifts and similar equipment several times.

MR. BUCHET: Yes.

MR. DEVORA: And your concern, as I see it, is contact with the scaffold from these man lifts.

MR. BUCHET: And disturbing the ground.

MR. DEVORA: And disturbing the ground. How do we address loading of scaffold? Say, masonry operations with lulls and that kind of equipment; isn't that inherently in contact with the scaffold?

MR. BUCHET: Sure.

MR. DEVORA: Is that in another section, or are we only talking about man lifts -- the only reason I'm making a distinction, is because someone's going to make a distinction somewhere down the line and is going to say, well, there's more of a possibility of a lull running into a scaffold than there is an aerial lift contacting the scaffold.

MR. BUCHET: We sort of went that direction and then we said, no, in order to get this done we're going to focus on the workers. So we're talking about access or fall protection. Obviously, material delivery, certainly you've got lulls, other high-lift forklifts. We may have grove cranes, mobile cranes, God only knows what all putting the material on there.

MR. DEVORA: Right.

MR. BUCHET: And that is a concern. But we were focusing on the workers.

MR. DEVORA: Great.

CHAIRMAN BURKHAMMER: Steve?

MR. COOPER: Mike, a couple of questions. On page 4, Paragraph 2, you're talking about "alternative fall protection should be provided when feasible" when you cannot tie off or use other types of fall protection. You used the term "should" again, when those alternatives are not feasible. This is not a consensus standard, this is a regulatory standard. Why did you use the word "should?"

MR. SMITH: Could I answer? Because this basically is when you're putting the scaffold up or taking it down. When you get it in place, there's no doubt you can put everything in there that you need. But when the guy's putting it up, sometimes it's just not there, it's just not possible. This appendix is for the erectors and the dismantlers, putting it up and taking it down.

MR. COOPER: That's to the point I'm raising.

MR. SMITH: Yes. Okay.

MR. COOPER: This is just for clarification. You have in bold print, "Scaffold systems should not be used for anchorage unless a professional engineer has written off and certified that they can be used for anchorage." Then you say, "When suitable anchorages are not available for personal fall arrest systems, alternative fall protection should be provided."

Now, I'm erecting a scaffold and I'm up 60 feet. The professional engineer will not certify that I can tie off. Are you saying I don't have to tie off at 60 feet?

MR. SMITH: No, I don't think they're saying that at all, and you're well aware of why that's there. The manufacturers just maintain -- they've backed away from it. They don't want anybody tying off to their scaffold because they're afraid they'll be sued. So what they're basically saying is, if you tie off, you're doing it on your own, the manufacturers.

MR. COOPER: Well, I'm not concerned about the manufacturer at this moment. It seems that it could be misleading. You say that it should be provided. Well, we all know what that means. So you are advising a regulatory agency on the standard and you're saying it should be provided when feasible, but it doesn't have to be provided when feasible?

MR. SMITH: No, I think OSHA's position is very clear. They say you should have fall protection, period. I don't think OSHA has ever changed its position. But, in putting it up and taking it down, there are limitations. You're saying, if it can be provided, then it should be there. If it cannot, then you just can't do it.

MR. COOPER: Representing the iron workers, I know all about what you're saying.

MR. BUCHET: In fact, at one point we had "shall be provided" and the word "maximum protection" in the discussion. This is a non-mandatory appendix, so we softened it at least to "should." If you notice, the hierarchy in that Subparagraph 2 is, when the anchorages are not available, then the feeling of the workgroup was that these other levels of protection should kick in.

So we're not saying you have a choice of all three, we're saying, one, anchor tie-off. If that's not available, then you have an array of other options. The "should" may or may not mean anything.

We had strong feeling in the workgroup that it doesn't mean you just look at it and go, well, that's too tough to figure out today so I'm not going to do anything. We're saying, these are thought steps that you have to go through.

I believe it serves the purpose that, for OSHA, when OSHA says it's not feasible, it's the erectors/dismantlers' responsibility to actually analyze the situation and be able to demonstrate that it is not feasible. It is not permissible simply to say, it looks too tough today, I'm not going to do it.

The feeling of the workgroup was that, if we put "should" in there, maybe we would push some people to do the thought process that would show them how to find a new way to do it.

MR. COOPER: Okay. That's fine with me.

However, and I don't want to get the Solicitor's Office in this discussion, but non-mandatory areas get to be mandatory. So, let's just move on. I've raised the question of should or shall.

You talk about the use of man lifts. In some cases, that may be the most safest way to erect a scaffold. Of course, I wasn't at your workgroup, so I can complain all I want, right? But, many times, that is the safest way, when you get into particular heights, to gain access to the scaffold. I'm not even going to get into getting the sections up by mechanical means.

My final question, on page 5. "All scaffold should be adequately braced." That term "adequately" is, you know -- adequately to me is fine with everyone else, so I'm okay, so I don't even know why you should have it in there. The term "adequately" should be reinforced.

MR. BUCHET: I'm sure we can change that.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper, for your comments.

Michael?

MR. BUCHET: I don't think the workgroup would have any problem if we changed adequately to properly, or most properly, or supremely properly.

(Laughter)

MR. COOPER: Adequately is not enforceable, so you're writing a -- you're wasting your time when you put that in there.

MR. BUCHET: You followed on a long line of words that we pulled out of this because we realized that they didn't do much. And a great heritage started -- Chairman Burkhammer visited us yesterday and pointed out some of the obvious to us as well.

Mr. Chairman, I'd like to recommend the workgroup's work product to the full ACCSH to deliberate or forward to OSHA at our pleasure.

MR. SMITH: I'll second it.

CHAIRMAN BURKHAMMER: We have a motion and a second. Discussion?

(No response)

CHAIRMAN BURKHAMMER: Hearing none, all in favor of moving the workgroup report and submitting it to OSHA for consideration, signify by say aye.

(Chorus of ayes)

CHAIRMAN BURKHAMMER: Opposed?

(No response)

CHAIRMAN BURKHAMMER: Ayes have it. We'll submit the workgroup report we just reviewed.

MR. SMITH: Mr. Chairman, may I make a comment?

CHAIRMAN BURKHAMMER: Mr. Smith.

MR. SMITH: I want to apologize to Mike and the committee for not being here yesterday, but there was a screw-up with my ticket. I got to the airport, and it wasn't there for me. So, I got here a little late--well, a lot late--but I apologize.

MR. BUCHET: This would not have been done if we didn't have the work product that Owen's workgroup created at the last ACCSH.

CHAIRMAN BURKHAMMER: Great. With that, Bruce, we'll submit this to you. Thank you, Michael, Owen, and the workgroup, for your fine work.

The question now arises, do we need to continue with this workgroup? Your thoughts, Michael?

MR. SMITH: I don't think there's anything to do until you get something from NIOSH, is my opinion.

MR. BUCHET: We'll confer and figure the answer to that out.

CHAIRMAN BURKHAMMER: All right.

MR. BUCHET: The issue of the materials delivery might be something that --

CHAIRMAN BURKHAMMER: All right. So, tomorrow when we go through the workgroups for maintaining or dissolving, you'll be prepared to address that then.

MR. BUCHET: Yes.

CHAIRMAN BURKHAMMER: We're going to skip Confined Space. We have a few minutes before our next speaker. I think Marie can get the --

MR. BUCHET: Actually, Mr. Chairman, I totally forgot one thing that the workgroup asked me to recommend.

CHAIRMAN BURKHAMMER: What is that?

MR. BUCHET: That OSHA republish 3150 with editorial corrections. I know Jim Boom and Joe Durst went through it sort of page by page and made some corrections, but the feeling of the workgroup was that this is a very useful one-stop-shop document, and to keep the complete standard in it.

CHAIRMAN BURKHAMMER: Do we have the marked up copy with the corrections in it?

MR. BUCHET: Where is Jim Boom?

MR. BOOM: I have that in my office.

MR. BUCHET: You have that, Jim?

MR. BOOM: Yes. Not with me right now, but I do have it. There's only three minor corrections.

CHAIRMAN BURKHAMMER: Jim, would you give that to Bruce, please?

MR. BOOM: Yes.

CHAIRMAN BURKHAMMER: Thank you.

The next report will be Data Collection. Marie?

ACCSH WORKGROUP REPORTS

DATA COLLECTION
 
By Marie Haring Sweeney, Ph.D. and Michael Buchet


DR. SWEENEY: Thank you very much, Mr. Chairman. I would like to acknowledge my co-chair, Michael Buchet, who has been instrumental in putting together some of the meetings that we've had since our last full ACCSH meeting.

During the last ACCSH meeting in July, we had the workgroup hear a presentation by Dr. Ana Maria Osorio to give us an update of what their workgroup had done, and she was very nice in obliging us.

I would like to suggest to OSHA that many of the recommendations that Ana put forth be implemented, particularly in how data are presented in terms of inspections, rates of inspections, and rates of fatalities.

I would be willing to sit down with you all and work through that. As her successor epidemiologist, I think those kinds of data and the presentations in rates as opposed to numbers are really important.

We also had a phone meeting in September, whereby most of the group was connected by a phone. In that, Berrien Zettler went over the strategic plan for us and we reviewed it basically in terms of the data collection needs of OSHA as it pertains to construction.

Yesterday, we had a meeting with about ten people, which actually was fairly good, facilitated by Camille and John Franklin, and we thank them for their input.

During that meeting, we tried to finish the agenda from the September 1 telephone conference, which we found two hours was too short for the amount of information that people wanted to give us.

In that, we again were interested in looking at the data collection needs, or data needs, for OSHA in meeting their strategic plan relative to construction. We went over the types of data sources that you might use, and they are too numerous to describe. I can give you the notes here.

But we did look at a large number of issues, one of which is that you are going to be looking at three areas. There are three key areas: amputation, silicosis, and lead. In each of those areas, you are going to use as a primary data source the OSHA IMIS system, and here and there, BLS data.

I would encourage OSHA to spend, and the workgroup encourages OSHA to spend, time considering the limitations of those data. IMIS was not constructed to do surveillance, although it seems to be being raised up to that level.

We have a series of recommendations that OSHA might, in fact, consider, particularly looking -- I know in the last meeting there was a review, there was some data being looked at. There may be some new coding changes. But, in order for you to meet the strategic plan, even in the first year of GPRA, there's going to be some significant changes in IMIS needed.

Some of the issues are, there's a lag time in getting the data in. We had a presentation by somebody who's doing work on heat stress. There are problems with identifying differences in illness and injuries. That's for heat stress, and I'm not sure about some of the other areas. But it's basically a fatality database, and we have very little data on illnesses. That is a problem, in general.

We, as a workgroup, are going to try to get somebody from BLS to work with us to see whether or not we can better quantify, qualify some of the data that's coming in out of illnesses.

There was a suggestion that, for completeness of files, that, in fact, some of the information pertaining to the circumstances surrounding the fatality be included. A lot of that information is in the case file, but the case file is kept in the regional or area office -- I guess in the area and district offices.

Those data aren't available to the national office. Perhaps, maybe, it would be important to get that information. And it is only kept, I think, for about three years and then it's archived. If we don't use it, archiving it isn't going to help.

Also, if, in fact, there's no citation but a 5A1 letter is sent, there must be clear descriptions about the hazards surrounding the fatality or injury, and that perhaps the 5A1 letters be captured in the computer system. Not as citations, but to document what issues were surrounding either the injury or the fatality.

There was some discussion about the OSHA 170 form, and Mr. Cooper, based on the minutes from the last meeting, you were supposed to receive comments from the committee on potential changes for the 170. Have you received any?

MR. COOPER: No.

DR. SWEENEY: Did the whole committee receive the 170 form? No? It was in the packet from last -- if, in fact, you can go back to last meeting's packet, we would be really interested in having everybody look at the 170 form, because that's the report of either the fatality, the accident, or the investigation.

Those data are really important in identifying the circumstances around the event. In order for us to make some headway in terms of prevention, we need to know the circumstances. So, if you would take a look at it.

The form, actually, is fairly old. There might be some new data that we need. There's also some issues about some of the supplementary coding information that needs to go in there.

The committee discussed a lot of things, but let me talk just specifically about the three areas, or four areas, that I think we need to deal with.

One, is the issue of lead. It appears that there are a number of states, and there's also the NIOSH Ables programs, where we will be able to determine whether or not there's an increase or decrease in high blood lead levels, and that is good.

One of my concerns, is being able to quantify increases or decreases in silicosis cases. It's going to -- most of the data that we receive is from death certificates, and that's too late.

So, I would suggest to OSHA that we put together, with MSHA and with NIOSH, a plan on how we may be able to quantify silicosis cases, or in the lack of data --

(Whereupon, at 10:02 the fire alarm went off and the building was evacuated, and the meeting resumed at 10:25 a.m.)

CHAIRMAN BURKHAMMER: Marie, would you like to complete your data collection report, please?

DR. SWEENEY: If I remember where I was. We were on the issue of silica and silicosis. There's two issues there. One, is counting cases of silicosis and trying to get them to determine whether or not they're increasing or decreasing. The other issue, is exposure to silica and quantifying exposure. In my opinion, if you reduce exposure you're going to reduce the incidence of cases.

So maybe, in fact, there is an alternative method of case reporting, instead of looking at only cases of silicosis, which you know you're going to be missing some or many, that if you can identify a reduction in exposure to silica, then perhaps you'll have a commensurate reduction in silicosis cases.

The issue of amputations. There are a number of data sources that you might, in fact, use. One, is ER cases. NIOSH has something called the NEISS system, where, in fact, we may be able to capture amputations.

The George Washington University, through the Center to Protect Workers' Rights, is doing a study on ER admissions for construction workers. I don't know whether that is going to continue in the next few years, but that might be a usable data source as well.

There are a couple of other unfinished areas that I would like to postpone until the next meeting, because we will be having another telephone conference call with members of the workgroup, and then I would like to present those later on at the next meeting. So, that is the conclusion of my report, Mr. Chairman.

CHAIRMAN BURKHAMMER: Two things I would ask you to consider. One, is Ana Maria's final report of the previous committee, if you would take that, take a look at the open-ended questions or where that report ended up, and then incorporate some of those into yours if you feel they're still meaningful.

If you'll look at the minutes from the last meeting on page 4, there's a discussion of the 170 form that you referred to Steve with, and a couple or three questions that were on page 5 that were going to be taken up to the Data Collection workgroup, if you could answer those questions prior to the next meeting and return that with your report.

Steve, did you intend to mark up 170 based on the input you'd receive?

MR. COOPER: Yes.

CHAIRMAN BURKHAMMER: I'd ask the committee then to just take a look at 170 and send your comments to Steve. If you don't send any comments, it means you don't want to mark it up. If you don't have a copy of 170, we'll get you one.

MR. DEVORA: Stew, it seems I recall an issue at the last meeting. Was it incomplete or were we missing a page? It seems like --

CHAIRMAN BURKHAMMER: Yes. But it was only one side and they brought it back and gave it to us.

MR. DEVORA: Oh, they did give it to us?

CHAIRMAN BURKHAMMER: Yeah. Yeah. They brought that back and gave it to us.

So, does the committee wish to get the form again?

(Chorus of yes)

CHAIRMAN BURKHAMMER: Is Jim here?

MR. SWANSON: No, but we can cause that to happen.

CHAIRMAN BURKHAMMER: All right. So when you get the form, mark it up. Please get it to Steve within 30 days, if possible, so he'll have it in time to mark it up prior to the next meeting and work with the committee.

Mike?

MR. BUCHET: Yes. The workgroup, one of the things we're planning for our next meeting, whether it's the teleconference or a physical meeting, is to ask OSHA to give us somebody who could explain all of the coding that we've been talking about.

Camille and John Franklin did an admirable job, but I think there are still some possibilities that we don't understand. And, to assist us, get somebody from BLS to the meeting who can explain what data they've captured and how that's coded, and possibly we can discuss how to put the two of them together.

MR. SWANSON: Did the staff that you had at the meeting yesterday, are they able to identify those areas that you'd like to have more knowledge on?

CHAIRMAN BURKHAMMER: Yes.

MR. SWANSON: Okay. Thank you.

DR. SWEENEY: Mr. Chairman, there was one other important issue that slipped my mind as we were walking down the stairs, was the issue of capturing information on small businesses and small contractors. We don't have sufficient data on injury and illnesses basically because BLS does not require data from contractors with fewer than 10 employees.

We need to find a way to ascertain what the injury and illness rates are. BLS does include them in their annual surveys, but perhaps we don't really have a good handle on that information, I don't think. Perhaps what we might want to do is, in fact, ask BLS at one point in their survey to over-sample small employers, but that is a point of negotiation between OSHA and BLS.

MR. SWANSON: Probably a third party in there, too.

DR. SWEENEY: Probably.

CHAIRMAN BURKHAMMER: Maybe we can include somebody from small business. The Data Collection workgroup will provide a couple of names. I'll get some names and get them going.

Any discussion on the Data Collection workgroup report? Steve?

MR. COOPER: Mr. Swanson, could you give me a contact in the directorate on the 170?

MR. SWANSON: Will I give you? Yes. Use me.

MR. COOPER: Use you?

MR. SWANSON: Yes.

MR. COOPER: Thank you.

CHAIRMAN BURKHAMMER: Any other discussion on the Data Collection workgroup report?

(No response)

CHAIRMAN BURKHAMMER: Thank you, Marie and Michael. We appreciate that.

Now, on your agenda, the next presentation is going to be the interactive training for the construction industry. Jimmy Roberts is here to make that presentation. I think those of us here in front of the screen are going to have to rotate.

SPECIAL PRESENTATION

INTERACTIVE TRAINING FOR THE CONSTRUCTION INDUSTRY
By Jimmy Roberts

MR. ROBERTS: I appreciate the invitation to come and show you all this training and outreach material that we've been working on in Salt Lake City. Let me give you just a little, short background.

Salt Lake City, formally or most commonly known as OSHA's analytical laboratory, was just that for a number of years. It started back in the mid-1970s and then we began some chemical research, and we developed a Sampling and Analytical Methods Development Group to sort of better fit OSHA's needs in terms of analytical methods to determine low concentrations.

There's no point in setting a permissible exposure limit for a chemical if you can't detect it at the level that you're interested in capturing, so we do some chemical research out there.

Along about the latter part of the '70s, early '80s, we took control or developed OSHA's Health Response Team. We do program support response from the Health Response Team. It's a bunch of advanced degrees engineers and hygienists that go out and assist area offices in doing accident investigations, investigating fatalities and catastrophic events, that sort of thing.

Also, as technology made the analytical equipment more computer-dependent, we began developing a computer applications group to help us with our internal interface between the analytical equipment and to the computer, and to store the data, because we have all the sampling data that we've collected over the past 25 years and we've got a database on it.

A dozen or so years ago we developed OCIS, which is OSHA's Computerized Information System. Probably a lot of you have heard of that. That initially began as an effort to provide sampling in analytical methods and technical-type information to OSHA compliance officers.

Then OCIS grew into what it is today, which is sort of a repository for the Agency. All the other directorates inside the Agency that develop information that they're interested in the public seeing, they would send it to us and we would put it on OCIS. I guess some of you have seen the OSHA CD-rom that gets printed every quarter or so, at least a couple of times a year.

This past year, the Agency developed the Information & Technology Directorate, with responsibility for maintaining OCIS. It was transferred from our office in Salt Lake City to the IT directorate, but that still leaves us with technical information that we produce and we're always looking for better ways to do that.

One of the guys out in our office, actually, the director of the Health Response Team, Bob Curtis, had the idea of this thing called Technical Links, which wouldn't exactly be a repository of technical data on a subject, but it would be data that experts on this subject thought was pertinent information.

It is all formatted sort of for recognition, evaluation, and control of a hazard, or recognition, evaluation and control within an industry. They're either industry-specific or subject-specific pages. I'll show you what they look like.

Then also training-type information and linking to outside information. Let me show you. If you go to the OSHA home page, some of you perhaps have been there, and you go down to Outreach, there's Technical Links.

If you click on Technical Links, this is what you get. This is the Salt Lake City page. You can look at the index. These are all the pages that we have currently on OSHA Technical Links.

Technical Links has been up about two years. And about a little over a year ago we were giving a briefing on Technical Links and we were real happy that we were getting about 10,000 users per month to look at our site and to collect technical information. Currently, we're getting just over 100,000 users per month. So, it's a popular product and people seem to get a lot out of it. We get a lot of good, positive feedback from it.

Take a look at Confined Space. This is basically how a subject page is formatted. It gives you over here, as you can see, recognition of the hazard evaluation control, all compliance information, the OSHA standards, OSHA directives, letters of interpretation.

Again, in some instances it won't be every letter of interpretation that compliance programs has ever written, but it will be those that the people who control the page think are the most pertinent.

Of the 100 pages that we've got now, about 40 of them have a specific page editor and an editorial board. That's what we're trying to move toward with every significant page so that you actually have experts in the industry or experts on the subject as the people who are deciding, you know, what should be up there, not an egghead like myself. Maybe I can move information around, but I couldn't tell you what's the most pertinent information to be there. They all have a credits box so that you can look on there and you can see the page.

These are the editorial boards on this one. We've got actually two. We've got Dr. Dave Brown from the Utah State University, and Emil Golias. He's a certified safety professional. He's an advanced degreed type of a guy that works on OSHA's Health Response Team. He does lots of PSM type stuff, and lots of accident investigations, a lot of field assistance for compliance officers.

I'll go back and take you on down. Under Recognition, these are the pieces of data that these folks thought that we should look at. This is the Small Business Outreach Training Program Instructional Guide, which is put on by OSHA's Training Institute. Here's some other pertinent data. We give a little description of what it is so people know what they're going to be looking at.

This is a one-page thing from NIOSH. Once you look through the controls, you can move down to information that tells you how to evaluate the hazard to determine what kind of a confined space you have, what kind of problems you have in the confined space, and then control information on how to abate the hazard, that sort of thing.

So, we thought this was really a good idea. We put this together and started moving forward with it, and we got a lot of good feedback from it and people seemed to like it.

In the process of developing these things, we came across -- actually, a fellow called me and asked me about Technical Links pages, specifically auto body repair and refinishing. He was with a group called CCAR. If you go down through the same types of criteria or divisions there, industry hazards, controls, compliance.

We went down to CCAR here. This was a thing having to do mostly with hazardous waste and EPA type stuff. So, I'm not trying to give you a lesson on EPA issues, but the concept is what I'm here to tell you about.

So anytime we do point to a site that is out of OSHA control, this is the first page you see that tells you it's not controlled by OSHA and we don't take responsibility for the user contents or information.

But, looking at this page here, they have a virtual auto body shop. So you can look here and you can click on to the body shop and you can get a brake tour information, all things having to do with the brakes; asbestos, dust in the brakes, that sort of thing. Or if you're interested in the exhaust on the car, you can get emissions information. And there's some safety and health information in there.

So I was talking to Charles Jeffress about some of the things that we do in Salt Lake City sometime, and was telling him about Technical Links and some of the other types of things that are going on, and he asked me if we could do an industry advisor of some kind, sort of along the lines of the confined space advisor and the asbestos advisor, and a couple of others that OSHA has produced over the past three or four years.

So I had my guys put together a cost proposal that, yes, we could do it. We got approval about May or April of this past year to do advisors. Three of them, actually. One for silica, one for respiratory protection, and one in the logging industry.

So what I want to show you today is the logging industry advisor. The reason for this, is because at the end of this year we committed about $70,000 to doing a construction advisor, and just conceptually we assumed that we would focus on the four hazards that caused the most injuries and fatalities in line with OSHA's focus over the past few years, with the struck by, caught by, fall hazards, and electrocutions.

So, conceptually, we think that a construction advisor could be done very similar to what we put together for the logging advisor, so I wanted to show you the logging advisor. Again, this is not to give you a lesson in logging, but the concept itself.

The way we've got the logging advisor set up, this is basically the home page. What you see here, logging advisor. All the logging standards are there for anyone who wants to see them. There's a glossary of all the terms.

You can look on a specific term that has a specific meaning within the logging industry, click on it then, and it will take you to the glossary. Then there's a user's guide here that kind of tells you what you're looking at and how to look at it.

We've basically set this up in a story-book fashion and we've separated them into lessons so you could print off lesson one and two, or you could do the whole thing, or lesson six if that's what is pertinent for this week at a toolbox meeting, whatever would fit your occasion.

Here, basically, are the unit lessons for the logging industry. As I said, it's sort of a story-book fashion, just like chapters in a book. If you had a three-ring binder, that's what you would see. You could print this material out, put holes in it, put it in a three-ring binder, and you could stick it up on your shelf.

But, to make it useful as a computer-based training program, what we have done is set it up in this fashion. Basically, within logging there are two types of operations, manual operations and mechanical operations.

With construction, for example, you could have maybe a partially constructed building with four or five tiers of scaffolding up one side of the building, with a guy standing up there with no fall protection on, or whatever the case may be. You could click on this, for example, and you'd get a manual virtual logging operation.

You can click on this logger here, for example, and you can see all the pertinent information regarding personal protective equipment and training qualifications that loggers should have. You can click on any one individual item. The chain saw, for example. It tells you here, you can learn about the chain saw, the tools and parts of a chain saw.

Let me go back out to the big picture here. You can make these things interactive. Felling a tree, for example. Basically, the things that you need to be aware of before you try to cut a tree down. You need to minimize the exposure to the potential hazards. This will tell you all the potential hazards involved. You can scroll down and look at all of them.

You need a retreat path and a felling direction for the tree. This thing will -- each one of these little red arrows is keyed. For example, if you keyed on this one, the danger is the path is directly opposite the intended fall. This one was pretty obvious, so that's the correct one right there.

Anyway, this is the direction the tree is going to fall. It's clearly not the path to take for safety. If you go into making the cuts, for example, on a tree, this is sort of the interactive part of this particular item. There's a top cut, a bottom cut, and a back cut.

This educates you on what these cuts are, the appropriate way to make the cuts. Then the interactive part here is that you can apply your knowledge and determine which of the cuts is appropriate on this particular tree.

For example, if you chose this one, it would say, no, that's not the best choice because the tree is obviously leaning to the right. If you cut it over here, you're cutting it on the wrong side of the tree. So, you can choose another cut.

This one, obviously, is the best choice, so that's the top cut. Then what is the best cut for the bottom? This one, obviously, is the best bottom cut because it makes the perfect V-notch. Then there's one more cut to make, which is your back cut.

Does someone want to venture a guess about this one?

(No response)

MR. ROBERTS: Actually, no, it's not the best cut because the back cut is too deep and it won't leave a hinge. There should be a hinge right there, for example, so you would choose another cut. That's the proper cut because it leaves you a hinge there between the back cut and the notch, which the hinge allows you to control the speed of the tree as it falls.

So that's sort of what the logging advisor looks like. It's the same whether you're looking at manual operations or mechanical operations.

We think that doing a construction advisor would probably, similar to this logging advisor, would be the best one. But I will show you, just briefly, the other two so you will see the others that we have worked on. The logging advisor now is actually up on the OSHA Technical Links. If you go to the logging page, you can see this and run it. The way I've got it downloaded here, just onto a laptop, it's just very linear. If you were up on the Internet, it would be much more interactive and you could run through the whole thing a lot easier.

The silica advisor is a lot more linear just in the format of it, actually. Over here we have exposure information, how to measure comparing your samples to the limits, and the protections that are needed. You can click on here to learn more about silica exposure.

It tells you what silica is and goes into lots of just training-type information. But this particular advisor is pretty linear in that there are four basic steps to do to control silica hazards.

You can determine if you have silica exposure. Then if you think you do, you need to obtain a measurement to see how much you have. Then you need to compare your measurements to the OSHA exposure limits. Then if your employees are over-exposed, you need to take the adequate protections. It's all in here.

The other thing that we're doing, is the respirator advisor. The silica advisor is up on the OSHA Technical Links page, also. It's sort of what we call the beta version. It's not the final version. It's up in beta version and we're expecting to get comments back from people as they look at it, use it, and test it for its technical accuracy and that sort of thing.

The respirator advisor is one that we haven't put up just yet. We're still having a little bit of discussions within the Agency on exactly how we want to move forward with a respirator advisor.

But the respirator advisor that we've put together focuses on two things, one learning to select the appropriate respirator, and then another on learning how to develop the change-out schedules for your cartridges.

The OSHA standard requires, if your employees wear a cartridge respirator, you have to have change-out schedules, some way to calculate your breakthrough times for your exposures.

So it's focused primarily on those two issues, though the entire standard is up there or in this fashion. This lays out the scope and the frequently asked questions, the regulation and the glossary, and so forth, on down to what an employer has to do if employees use respirators on a voluntary use.

So what we're doing now, is we're in the initial stages of identifying a team of people to work on a construction standard. After we have the team, we will need to assign each team member what their responsibilities are and fall hazards.

If we're going to actually just focus on the four leading causes of accidents and fatalities, one of them being falls, we would like to have -- we will have, not like to have, someone who is an expert in fall protection providing some of the content material. That's the part that we really need to take pains to make sure that we have experts helping us to develop the content material.

Once we have the content material and get it laid out in a story-book fashion, then we give it to the graphic artists, who develop whatever graphics that we need. Then we will either, in-house based on our own experience, or with use of another consulting company, someone who specializes in computer-based training, put it into a format that is really user-friendly, useful, and adequate for our needs.

The main thing that we need to make sure of, being the people who are going to be responsible for making sure the product gets developed, we want to make sure that the construction advisor meets the needs of the construction industry.

One of the things that I would really like that I think would be helpful for us would be if we had some kind of a workgroup from your committee that we could use to provide us with review and content on a periodic basis as we're going through the development of the product.

The problem that we had with the other three advisors is that we didn't have any type of a formal advisory committee participation, so we can't solicit review and comment from industry or from stakeholders because we're violating the two or three laws. I guess maybe Sarah would have a better idea of what laws I'm violating. FACA laws, and we're violating OMB Paperwork Reduction Act laws.

So the whole development of these three that we worked on this year has been, pretty much up until this beta version, has all been in-house type of review and comment.

We did, for the logging advisor, for example, we did get a lot of input from a lot of people. You can see on the primary authors, is Paul Cyr, who is a logging expert for OSHA up in Region 1, and Jim Taetsch, a compliance officer from Appleton, Wisconsin, helped us out considerably.

But we also had help from some folks who do have a lot of logging experience. We solicited some input from some folks from the Washington State OSHA, some other people from the Oregon State, some from Minnesota.

So, we did have experts working on the product and pretty well satisfied with the product, but we're just now being able to, in this beta version, putting it up to let people look at it.

And we expect, over the next 30 to 60 days, to be getting some comments back from people, though we can't solicit the comments. It just has to be there for people to see and take a look at and, if they decide that they want to hit the comment button and tell us something that they like or dislike about the product, then we can use that information, but we can't solicit the information.

But with a workgroup assigned to help us, we would be able to do that without worrying about violating any of the laws that we have to be careful of.

That's it, basically. Again, I wasn't here to give you a lesson in logging, but just to show you the concept that, of the three that we worked on, this is probably the one that would most fit what we would be trying to do with developing an advisor in the construction industry.

That's all I have to tell you. I can answer any questions, or attempt to answer any questions that you might have.

MR. SMITH: I have a question. Did I understand you to say that it's against the law to get input from people outside these agencies, except for these experts?

MR. ROBERTS: It's not against the law to get input, but you have to clear it somehow, and I'm not sure exactly how. You have to clear it through OMB. There's a formal process that we have to go through before we can solicit the input.

MR. SMITH: Well, how relevant can this information be that you're getting from these people that aren't actually engaged in the thing that you're writing the law about?

MR. ROBERTS: How relevant is it?

MR. SMITH: Yeah. You've got people that have degrees, and apparently they got those from going to school. But apparently, you know, the practical application, you're writing a law for somebody that has to abide by it and work with this law every day, but you didn't get any input from him, you got it from somebody else.

MR. ROBERTS: I'm not following you.

MR. SMITH: Well, you write a law for an industry, for the logging industry, if you will, and you got all the information, apparently, from professionals that are not engaged in the logging industry themselves. They just went to school and read some books and said, hey, this is what they ought to do

MR. ROBERTS: Well, I'm not sure. The logging standard itself was written in the Office of Safety Standards. I'm not sure who wrote that standard, but this is an advisor to try to help people better understand what the logging standard is and to better understand the hazards associated with the logging industry, and to help them comply with the standard.

One of the things that we do in our advisor is, for example, when you click on one of those virtual operations that I pointed out and you see the chain saw, for example, the text that you see there is sort of our best effort at providing some kind of a plain language type of requirement so people can read what the requirement is.

But if someone wants to see the actual regulatory text, then it's on there also, but we didn't write the standard and I'm not really familiar with OSHA's standard-setting processes. I've never worked in that part of the Agency.

MS. SHORTALL: The standard setting process for any OSHA regulation or rule will have included quite an extensive public participation. It's required by the statute, it's required by our own regulations. When we issue a proposed rule, there is a requirement that we allow persons a certain period of time to comment on the rule.

If anyone requests a hearing, we need to honor that, in most cases. That is followed by additional periods of time in which to file more information, and then one last shot that you have to give all the arguments before OSHA would go back and look at all the comments to develop a final.

In addition, we have two other requirements, especially for you, Owen. We have the new SBREFA act that requires us to get better information about the special impacts of regulations on small businesses, and that involves usually putting together a panel of small businesses to comment on and provide recommendations. Likewise, under the Regulatory Flexibility Act, we also have to look at the particular impact on small businesses of any regulation.

MR. SMITH: I'm mollified.

CHAIRMAN BURKHAMMER: I think what Owen was trying to ask, and correct me if I'm wrong, but you had mentioned several times about best practices in your presentation. I think Owen's comment was directed more at, who's better to give you the best practices, and is it somebody from the industry rather than somebody from OSHA.

MR. ROBERTS: Yes. And one of our problems with this particular project also, is we had approval to begin development of the products in May and also was assigned a deadline of October 1 to have this final version.

So, if I had had time to do it, I probably would have gone through the more formal process to collect some stakeholder input into the product, but the way we had to finish up these products, we finished up with these beta versions and then put the beta versions up on the Internet, and we're going to -- I'm pretty sure we'll be getting some good feedback over the next 30 to 60 days.

CHAIRMAN BURKHAMMER: One thing I might share with you. I don't think you're going to get construction in one picture like you got logging.

MR. ROBERTS: Yes.

CHAIRMAN BURKHAMMER: And I think you had better take a look at your fit test on that respirator the lady had on with her pair of safety glasses. I don't think it quite depicts the way it should be.

Larry?

MR. EDGINTON: Let me first say, clearly, you're moving in the right direction in terms of having a powerful information tool available. But the thought occurred to me throughout your presentation, it seems to me that there's one thing that's really lacking in what you're doing that, technologically, it should be easy to do.

For example, when we're talking about a particular standard, what you don't clearly have identified for the average worker is, for example, what are my worker rights under a particular standard? What does a worker need to know about that standard, for example, in terms of the use of PPE or other employer obligations under the standard?

What we have is a situation where the worker has to wade through everything you've got and sort of reach that conclusion for themselves, and it strikes me that it might be appropriate, under your advisory section or something else, to give some thought to sort of a quick summary of what workers are guaranteed or should be provided pursuant to those standards.

CHAIRMAN BURKHAMMER: Okay. Thanks. Thank you, Larry.

MR. SMITH: I have another question for you. Can an employer rely on this advisory? If he does everything that you say, is he safe from getting a citation if something happens?

MR. ROBERTS: He should be.

MR. SMITH: He should be. Where's Steve with that --

MR. ROBERTS: It's difficult. That's probably the hardest question in OSHA to answer with a straight yes.

MR. SMITH: Well, if you can't rely on it --

MR. ROBERTS: I'll let the compliance guru answer that question there.

MR. SWANSON: Well, I agree with Jimmy, that if you follow everything that's in the advisor, there's no way, shape or form that you ought to be getting a citation. Nonetheless, if the citation is issued it's a valid citation and you did not abide by the standard, but rather, through some quirk, there was a distinction between the advisor and the standard. Only the standard has the force and effect of law, and that's what you're bound to.

MR. ROBERTS: And one of the things that we need to make sure of, is that the advisor doesn't tell you to do something that is in opposition to OSHA's compliance policy. We take pains to try to make sure that that happens.

CHAIRMAN BURKHAMMER: Marie?

DR. SWEENEY: I think that's a very nice presentation of the data. I have two points. One, is that NIOSH is always willing to work with you. We have people who do work in logging up in Alaska, and we also have folks who understand silica. Certainly, we would help you on the construction.

The other question is, how are you going to get this information to those people who are going to need it? People say there are 72 million users of the Internet or more in the United States, but there are just a lot of people out there who don't really know how to do it.

I would say it's incumbent on OSHA, NIOSH, and those Federal agencies to see how we can get the information to the second and third tier parts of the industry, to the workers, to the foremen. I think it's real important.

MR. ROBERTS: Exactly.

DR. SWEENEY: It's a great concept, but if we can't get the information to the people, then we haven't done any good.

MR. ROBERTS: I agree. And maybe there's more that we need to do, but one of the ideas for doing that is setting it up in sort of a lesson format so that it can be downloaded and printed off one lesson at a time so that someone out on the job, you know, maybe they've got a computer back at their house, at the library, or at the job trailer, or somewhere, but somewhere, perhaps, if they have weekly meetings or that sort of thing, they can print up a pertinent page and go out and cover it.

But, yes. There's 72 million users, but who are those users? A large number of them are my kids. But I agree with your point.

CHAIRMAN BURKHAMMER: Steve?

MR. CLOUTIER: Jimmy, I think you've done a great job here. I think there's all kinds of possibilities, and it's unlimited. As we've seen our industry change over the years, and some of us have been around a long time, some of us are still in the dinosaur age, this is definitely a step in the right direction.

When do you expect the construction page out, the construction advisor page out?

MR. ROBERTS: That's a good question, too. When we started these last three we were hoping we would have a couple of years to work on them, but we finished silica respirators and logging industry from May to October 1. I would hope that we would be able to do it this year, so by the end of this fiscal year we would have a product that we would be ready to at least let people take a look at.

MR. CLOUTIER: Well, I encourage you to look at the OSHA 10-hour and 30-hour course. If it could be put in this type of format, it would do wonders. I think we have a brand-new venue, Bruce, to do the fatal faxes, get them back out, get them on the web page. I've had some requests from some members to bring that up at this meeting. This may be a good opportunity. We could put fatal faxes right here as a learning tool.

I would hope we would think about bilingual. We've got it in English. A percentage of our workforce is Hispanic and is really non-English-speaking folks, and that may be an opportunity.

And all of us that sit around the table, we know that our kids are using this, and the 72 million users that are on the web. But what will it be a year from now, and five years from now? It should be fairly common. I can see this turning into training programs to help employers and help workers to convey the information, like a menu where you've got a choice of one, two, and three, and pick the right one.

I just hope we go forward, and I hope Charles is able to help fund this. I co-chair the Safety & Health Program, as well as the Training Workgroup. There is an avenue here, with the advisory committee as a peer review, to share information back and forth and keep you on track.

I'm kind of like Owen, though. We need to step out of the box and get some industry input, because when we strictly get it from all the guys at OSHA, some of us around the table think it may be tainted.

But I really like what you've got there. In the virtual construction site, whether it's residential, commercial, heavy, or process, it's just amazing what you can do with that.

MR. ROBERTS: Yes. Appreciate it.

CHAIRMAN BURKHAMMER: Jane?

MS. WILLIAMS: I just have a real basic question for Mr. Swanson, just so I understand. Does OSHA accept computerized-based training in fulfillment of employers' training responsibilities?

MR. SWANSON: The answer is yes on your specific standards that require certain training. We are piloting a concept with the Training Institute and one of the employer associations to expand that beyond specific requirements to go to the 10-hour and get into distance learning and interactive computer training. Right now, OSHA -- Steve, you're not the only dinosaur around.

OSHA has in writing that, for the 10-hour requirement, we must have a live lecture and you must be in the room for 10 hours. That's what we are piloting to go around.

MS. WILLIAMS: Thank you.

MR. SWANSON: May I make one other comment in response to several things that have been brought up here? They're valid points. What Owen said about getting industry participation is, indeed, something that we should be trying to do.

The logging industry, unfortunately for them, does not have a logging advisory committee. The construction industries does. We have workgroups. You have all participated in workgroups. You are the people that bring the expertise to this system.

Mr. Cooper might have mentioned one or two of you on a thousand occasions about negotiated rule making, another attempt to bring in the expertise. We agree with you, Steve and Owen, 101 percent, and I know the Assistant Secretary is on board.

CHAIRMAN BURKHAMMER: Bob Masterson.

MR. MASTERSON: Yes. I think this could be a real powerful tool for the large and small employers. I think you need to make sure that it is not Internet dependent, so it can be transported. If an employer could take this program, literally take it onto a job site and sit workers down with it, I think you'll get much greater exposure than having to tie it directly to or through the Internet in order to access it.

CHAIRMAN BURKHAMMER: Harry?

MR. PAYNE: I have a concern that is not unique to the Internet, it has to do with all publications that are done nationally. That is, some of the state plans have different enforcement policies, different interpretations, or in some cases different standards than what the uniform federal standard is.

Since the Internet doesn't have borders, I have a concern that an employer might, in good faith, go to the advisor, construction, a fall protection situation, act upon the advisor, and be in noncompliance with that particular state's expectations. Is there anything indexing state exceptions, or interpretation differences, or any kind of notice put in the process to please check with the local OSHA authority?

MR. ROBERTS: It would be very simple, if you were going to click on fall protection if you had a virtual construction site there and something to do with fall protection, you could click on fall protection and then each state that perhaps has a different compliance policy, click on the state that you're interested in.

MR. PAYNE: Right.

MR. ROBERTS: And go directly to see what their policy is. That could be done.

MR. PAYNE: Does that go down to, not just standards? Will these -- for instance, fall protection in residential construction. It's not in the standard, it's in the enforcement, there's some play. How far down are we going to go as far as unique approaches?

MR. ROBERTS: Yes. That needs to be determined, I guess, but we can go, I guess, as far as we have the money and the time to go. But it could certainly explain what the compliance policy is at that given time.

The problem is, if policy changes on a weekly basis, then you've always got a system that's a little bit -- one of the things that we do, is we try to bring you the standard itself, what the requirements are.

But in some cases we say, here's the standard, but, especially in the logging industry advisor, there are some things that really are not covered well by the standard, but we would bring what the good work practice is according to the experts that worked on it.

CHAIRMAN BURKHAMMER: Due to time constraints, I'm going to give Marie the last question on this subject.

DR. SWEENEY: Thank you, Mr. Chairman.

I think that by concentrating -- you have to start somewhere, and by concentrating on the sort of four major areas, it's probably useful. Those are four areas for fatalities.

But if we think about what are the greatest causes of illnesses and some injuries, you might want to consider putting something in there on musculoskeletal disorders, particularly back injuries; something on noise-induced hearing loss and how one might protect one's self from that absolutely preventable disorder; and something on eye injuries. If you look at the data, eye injuries is one of the five most frequently treated problem among construction workers.

MR. ROBERTS: Okay. Thanks.

CHAIRMAN BURKHAMMER: Thank you, Marie.

Thank you, Jimmy. We appreciate that. That was an excellent presentation. We got a lot out of it.

MR. ROBERTS: Thanks.

CHAIRMAN BURKHAMMER: We will be happy to help you if at all possible in developing the construction advisor.

MR. ROBERTS: Great. I'll follow-up through Bruce.

CHAIRMAN BURKHAMMER: Right.

MR. ROBERTS: I need to take that machine back down.

CHAIRMAN BURKHAMMER: Yes, go ahead.

Next, and before we break for lunch, I want to get two more things in on the agenda. If you'll add to the agenda, first, we're going to hear a presentation from Edith Nash and Brad Hammock from the Solicitor's Office on the silica PEL, and then that will lead into the respirator standard with Adam Finkel.

So, Edith and Brad, if you'll please come up.

SPECIAL PRESENTATIONS

SILICA PEL
 
By Edith Nash and Bob Hammock


MS. NASH: Thank you for giving us the time. I am Edith Nash, and with me is Bob Hammock from the Solicitor's Office. We are the two project attorneys on the silica standard, which I understand Loretta Schuman gave a presentation about at one of your prior meetings, how OSHA is in the process of beginning to develop a comprehensive silica standard that will apply to all industries, and obviously to the construction industry as well.

We are here for a very specific and narrow reason. We need to start the process of your advising us and informing us about whether or not there are various problems that participants in your trades and industries have in complying with the current PEL for silica.

We are particularly interested in finding out whether there are any concerns you have about methods of measuring silica, the availability of laboratories to do the analytical work, whether there are any concerns about whether the methods are reliable enough, and what your suggestions are for the future. That's essentially why we're here.

We need to start this process now because, as we review the vast silica literature, in addition to the many scientific issues, there are very, very practical problems and we hope you will soon establish a workgroup so we can go to you on a continuing basis to get your advice and input. If you have any questions now, we'll be happy to answer them.

CHAIRMAN BURKHAMMER: Questions from the committee? Marie.

DR. SWEENEY: Just one. What is your time line?

MS. NASH: The time line now for the proposal is, I think, late spring of 2000. We hope to have a draft, obviously, before that. We need to have a draft before that. We are hopeful that the time line will be met, but right now, that's all we are, is hopeful.

CHAIRMAN BURKHAMMER: Do I hear a motion to establish a silica workgroup?

MR. EDGINTON: So moved.

CHAIRMAN BURKHAMMER: Second?

MR. SMITH: Second.

CHAIRMAN BURKHAMMER: Owen. All those in favor of establishing a silica workgroup, signify by saying aye.

(Chorus of ayes)

CHAIRMAN BURKHAMMER: Opposed?

(No response)

CHAIRMAN BURKHAMMER: Recommendations for co-chair? Marie?

DR. SWEENEY: Sure.

CHAIRMAN BURKHAMMER: Larry? Thank you.

We'll have additional sheets out for the two new workgroups that we've established today. We'll have one out for the silica workgroup. I think the ACCSH Task Force Workgroup will be confined to the members of the committee, but the silica workgroup will be open. So, there will be a sign-up sheet outside for that.

MR. SWANSON: Mr. Chairman, let me recommend that you confine the workgroup of this ACCSH committee to members of the committee. It will, of course, be open to participation. The workgroup meeting itself will be open to the world at large, but if ACCSH starts putting non-ACCSH members on its workgroups, we're going to start blurring some lines here, I'm afraid.

CHAIRMAN BURKHAMMER: I stand corrected. That's right. But the ACCSH Task Force Workgroup will have no outside people involved in that one.

MR. SWANSON: Yes.

CHAIRMAN BURKHAMMER: Thank you. Thank you very much.

MS. NASH: Thank you very much.

CHAIRMAN BURKHAMMER: With that, we'll roll right into the respirator standard, final rule.

MR. SMITH: Is there a copy of the rule, the standard?

CHAIRMAN BURKHAMMER: Yes. I think Adam's group is going to provide that for us, I hope.

MR. BUCHET: Mr. Chairman, in the interim, could we discuss creating a workgroup to assist Salt Lake create their construction advisor?

CHAIRMAN BURKHAMMER: Proceed.

MR. BUCHET: I'd like to make a motion that we create a workgroup to assist Salt Lake create the construction advisor.

CHAIRMAN BURKHAMMER: Second?

MR. MASTERSON: Second.

CHAIRMAN BURKHAMMER: Bob seconds. We have a motion and a second to create a workgroup to work with Jimmy in Salt Lake on the development of the construction advisory interactive video, CD-rom, web page, etc.

Do I hear any discussion on that?

(No response)

CHAIRMAN BURKHAMMER: All in favor of establishment of the workgroup, signify by saying aye.

(Chorus of ayes)

CHAIRMAN BURKHAMMER: Opposed?

(No response)

CHAIRMAN BURKHAMMER: Co-chair? Michael?

MR. BUCHET: Okay.

CHAIRMAN BURKHAMMER: Bob Masterson. Steve, would you assist with that?

MR. COOPER: I'm loaded.

CHAIRMAN BURKHAMMER: You're loaded. Marie? Okay.

MR. BUCHET: Steve will probably show up if we discuss fall protection.

CHAIRMAN BURKHAMMER: All right. If we can add a sign-up page outside for that workgroup, and any of you who wish to participate on the workgroup to assist Salt Lake City in the development of what you've seen here today, please feel free to sign up. Or if any of you have computer geniuses that you would like to nominate to participate on that committee, I think that would be appreciated also.

Jim, would you see that we get a sheet on the silica and a sheet on the Salt Lake City interface workgroup, please? Thank you.

(Pause)

CHAIRMAN BURKHAMMER: This is the presentation on the respirator standard final rule. If you would please state your name before you speak for the record so they can get it down. Thank you very much.

SPECIAL PRESENTATIONS

RESPIRATOR STANDARD - FINAL RULE
 
By Adam Finkel

MR. FINKEL: Adam Finkel, Director of Health Standards. I talked to you folks it seems like just a few months ago about some other activities. This is our respirator final rule that was promulgated in January of this year.

Tom Galassi, next to me, is going to go through the nuts and bolts of the standard. I just wanted to introduce it with a little bit of discussion on what we've been doing on this standard for the last nine months.

I think the days when OSHA, or when health standards, at least, can finish with a rule and move on to the next one seem to be over. This one has occupied a lot of our time over the last nine months, beginning immediately after promulgation, with some legal activity.

There were four lawsuits filed against the standard, and a number of other groups that we met with I think were seriously considering joining in. But, after all was said and done, we had some good discussions with a number of the manufacturing industries and, again, only four suits were filed.

One of them was withdrawn shortly thereafter. It was basically a typographical problem with one of the effective dates that we cleared up. Another one, we expect to be withdrawn very soon if it hasn't happened already.

So, there are two outstanding challenges, one by the Iron and Steel Institute and one by the College of Occupational and Environmental Medicine. They're concerned with the liberalization of the medical surveillance provision that allows some non-physician practitioners more access to the programs than they had under some standards in the past.

MR. SWANSON: Adam, let me add to that list. Those are the formal issues.

MR. FINKEL: Right.

MR. SWANSON: I know there are people on this committee and there are people in the audience who also have written a number of letters to the Assistant Secretary voicing the concerns of some elements of the construction industry about this. If I can ask your forbearance, let Adam talk about the standard, and when we're done with the standard we'll move on and deal with the other issues. Thank you.

MR. FINKEL: We have some news for you that Bruce and Barry are going to handle about the disposition of the letters that we've gotten in the last month or so.

Another aspect of the standard that has taken a lot of our time, I think very productively spent, has been some technical work on the issue of cartridges and canisters and the change schedules for them.

As Tom is going to mention, the standard makes some departure from the previous 1971 standard in requiring users to implement change schedules for air purifying respirators based on some notion of the objective frequency with which these cartridges are going to fail. Frankly, we felt that was not an earth-shattering change. We assumed that users for many years had been giving some thought to this issue.

It's well known that the carbon in these cartridges, depending on the substance they're being used to protect the worker against, they don't last forever, and in some cases they last for several hours at most before they need to be changed.

It turned out that, soon after we promulgated the standard, there was a lot of outcry from the respirator manufacturers and a lot of the users to the effect that, in fact, the data had not been collected over the previous 10 or 20 years, and that allegedly OSHA was trying to force a level of specificity that just didn't exist.

So, we've been working with the manufacturers of the products, with some of the main user groups, and with some of the experts in our sister agencies at NIOSH, EPA, and in academia.

We've set up a workgroup, had a formal public meeting, and we've been advancing the ball on this issue of change-out, with a lot of specific information that does exist on where users can find software models, published papers, lists of chemicals for which carbon is not recommended.

So, in the compliance directive that was released a month or so ago, it makes clear that we are moving ahead with this provision, but in a measured way, and we have given as much advice as we can at the moment on what we mean by objective data.

The point of this discussion is just to introduce Tom's presentation and give you a sense that some of the activities, particularly the release of this small entity compliance guide that Bruce is going to talk about when we're done, have been, with all our good intentions to produce these right away after promulgation of the standard, we ended up having to do a lot of activities that we had not anticipated in the realm of working on legal challenges, working on some technical issues that we did not think would be as controversial.

So, we're solving those, and we're also making, I think, very good progress on the outreach front. As I say, we have the compliance directive issued and available on the web.

We have a very lengthy question and answer document that's been on the web for several months. We do have, as of a week or so ago, the small entity compliance guide. It is on the web. We also have copies for everyone in the back of the room.

So I will let Tom just quickly go through the elements of the standard, and then we can take questions about it.

(Showing of slides)

MR. GALASSI: Thank you, Adam.

As Adam said, we thought it would be a good idea at this point if we gave you a kind of an overview of the standard.

I've got a number of slides here, and I apologize for the quality. I thought I had everything planned, but the bulb in the projector doesn't seem to have the wattage to project it.

But what we'll do, is I'll go through the slides and I'll go somewhat rapidly, given the approaching lunch hour. If at any point you would like to stop, don't hesitate to ask me and we can get into some detail on supervision.

But, as I said, there's a lot of slides. I'm going to go kind of fast, but it would be useful that you would just see an overview of the standards.

(Changing of slides)

MR. GALASSI: This is just a slide that describes the history of the rule making. Just to let you know, the original rule came into play in 1971. We issued a notice of proposed rule making in November of 1994, and had hearings in 1997. The final rule was published, as you know, January 1998. The final compliance date was October 5, as stated in the Federal Register.

(Changing of slides)

MR. GALASSI: The standard is organized, and I'm just going to run through this. It kind of reflects the elements of a respiratory protection program. If you haven't seen that--I apologize to those who have seen it and are familiar with it--but it pretty much tracks the respiratory protection program, except for the two elements, permissible practice, which is no different from the statement we had in the earlier standard, and definitions which we think really help to clarify the standard.

(Changing of slides)

MR. GALASSI: Use of respirators.

(Changing of slides)

MR. GALASSI: Breathing air quality, identification of filters and cartridges, training.

(Changing of slides)

MR. GALASSI: So I think we ended in the standard, and then we get into the appendices.

(Changing of slides)

MR. GALASSI: We have a number of appendices here which provide a lot of information as far as what we mean in terms of fit testing procedures, how to clean and maintain a respirator, elements as far as medical evaluation. Appendix D there is if you're using a voluntary dust/mist filtering face-piece respirator. That's what you would give to an employee. I will get into all this.

(Changing of slides)

MR. GALASSI: As I mentioned, scope. Or I didn't mention it, but I will mention scope. This standard applies to all industries, construction, ship building, maritime, with the exception of agriculture.

(Changing of slides)

MR. GALASSI: Permissible practice. It has been OSHA's longstanding position, and this standard certainly does not change that, that, where feasible, you should use engineering controls and eliminate the hazard. Where engineering controls are not feasible or where you're implementing them in an interim period, respirators shall be used.

(Changing of slides)

MR. GALASSI: Obviously, respirators are used to control against respiratory hazards in the workgroup.

(Changing of slides)

MR. GALASSI: I mentioned that the standard had a number of definitions. I'm not going to go through these, in the interest of time. It talks about ideal age, end of service life.

(Changing of slides)

MR. GALASSI: Quantitative fit test, qualitative fit test.

(Changing of slides)

MR. GALASSI: Physician or licensed health care provider. This is a key definition that I'll be talking about later, as far as defining who can conduct the medical evaluation.

(Changing of slides)

MR. GALASSI: This is Respiratory Protection Program, Section C of the standard. This is an area where we feel we've added on to the revised standard, where we've really clarified what a written respiratory protection program is in the workplace, and that it includes specific worksite procedures.

The standard also requires that you address certain specific elements of the program. Selection, medical evaluation, fit testing, use of respirators, maintenance and care, breathing air quality training, and program evaluation are all elements that are dealt with in detail in the regulation.

The respirator protection program will also address voluntary use of respirators. Basically, what it says is, where you have voluntary use of respirators, and it's the elastomeric type of respirator, somewhat rigid face-piece, your obligation as an employer is that you will ensure that the employee is medically able to wear the respirator and that that respirator is clean and in a sanitary condition when they use it. Those are the two prime requirements under the program for voluntary use.

Now, if it's a filtering face-piece, the old kind of respirators, dust/mist types of respirators, your requirement is that you provide the employee with a copy of Appendix D.

Posting it isn't satisfactory, you have to give them a copy of Appendix D. That is basically kind of a warning section there that they should maintain the respirator in a clean condition, and that respirator has limitations on use.

(Changing of slides)

MR. GALASSI: The Respiratory Protection Program also designates a program administrator. This is someone who has knowledge of the program and its implementation, and also will be able to conduct a program evaluation.

This can be someone who is designated within the corporation, or it can be site specific. There's flexibility there in terms of, different organizations are going to address it differently. But there does have to be someone who has that responsibility in the organization for the Respiratory Protection Program.

(Changing of slides)

MR. GALASSI: Selection of respirators. This is an area I think we've clarified in the new, revised rule. We give kind of performance-oriented guidance, but also we give specific guidance when you're in ideal age type situations.

But we require that you select and provide an appropriate respirator based upon the respiratory hazards to which workers are exposed. In order to do this, an employer is required to do a reasonable estimate of exposure.

(Changing of slides)

MR. GALASSI: In selecting respirators, they do have to be NIOSH certified and in compliance with the NIOSH standard. I mentioned specific guidance.

(Changing of slides)

MR. GALASSI: Where you're using respirators in ideal age situations, we're very specific. You have to use an SCBA or you have to use supplied air with a supplemental air pack for escape.

(Changing of slides)

MR. GALASSI: When you're using respirators for particulates, you have to make sure that they are NIOSH approved. Just for your information, NIOSH revised their regulation 42 CFR 84 so that now they have a new certification scheme for respirators. Now they are NTR rated, and 95, 99, and 100 is the rating scheme.

(Changing of slides)

MR. GALASSI: Organic vapor cartridges. You're required to provide NIOSH approved cartridges or canisters. This raises the issue of the change schedules. What we say there is that either the respirator should have an end-of-service-life indicator on the cartridge which would indicate when the respirator is no longer useful, or the employer should have available some sort of objective data in which to establish a change schedule.

In the directive, I think we do a fairly good job of explaining OSHA's current position in terms of change schedule, in that we're going to be fair and reasonable in enforcing that provision. I think we give some good guidance as far as some options to get the information.

Obviously, as Adam has said, there's not a lot of precision in this area. Sometimes some of the best guidance will be changing every day, given the contaminant. We do have in the directive a rule of thumb. If you have a chemical with a certain boiling point, that might be the best way to approach it.

But we do encourage contacting a respirator manufacturer, distributor, going to predictive models, actual workplace sampling. So there are a number of avenues that can be explored.

(Changing of slides)

MR. GALASSI: Other standards do have specific guidance on the change schedule. Here's just a list of some of them that say, change it every four hours, or change it every eight hours.

(Changing of slides)

MR. GALASSI: Medical evaluation. This is an add-on from the old standard. I shouldn't say an add-on. This is an area where we've clearly clarified, revised, and been more specific. The prime requirement for an employer is, they have a choice.

Either they can have the employee take a physical exam and a physician or licensed health care provider would certify that that employee can wear a respirator, or under what limitations they can wear a respirator, or they can administer a questionnaire, which is in Appendix A, I believe, of the standard. Well, it's in the appendix of the standard. So, roughly, they have that choice.

Now, the physician or the licensed health care provider, it's basically up to the states' scope of practice in terms of what -- in some cases it will be a registered nurse, in some cases it will be a physician's assistant. It just depends on what the state's scope of practice allows in terms of designating the licensed health care provider. So, the employer would have to consult and get that information.

(Changing of slides)

MR. GALASSI: Where there is information that perhaps some questions weren't answered properly on the questionnaire, or the medical examination indicates a need, there can be follow-up examinations from the questionnaire.

(Changing of slides)

MR. GALASSI: Additional medical evaluations are needed where there is information from the Respiratory Program that indicates a need for change or some change occurs in the workplace, things which obviously -- say there's a change in the chemical or change in the workplace conditions, things of that nature that require a change or a follow-up. I'm sorry, an additional medical evaluation.

(Changing of slides)

MR. GALASSI: Testing.

MR. BUCHET: Can we talk about the medical evaluation for a second?

MR. GALASSI: Sure.

MR. BUCHET: Are we taking questions at this point, or afterwards?

CHAIRMAN BURKHAMMER: Let's wait until the presentation is over to take questions.

MR. BUCHET: Okay.

MR. GALASSI: This standard has specific requirements for fit testing, and also protocols in the appendices of the standard for both quantitative and qualitative fit testing. Basically, before an employee uses a respirator they have to ensure that that respirator fits them properly. This is for negative and positive pressure tight-fitting respirators.

(Changing of slides)

MR. GALASSI: This is also an annual requirement. Let me just say that this is also something which is portable. That is, if an employee has fit testing results from a past employer which apply to the current workplace, they can use those fit testing results.

(Changing of slides)

MR. GALASSI: You must conduct fit tests when there's changes in an employee's physical condition. You have to follow the OSHA protocol in the appendices. Those are mandatory appendices, very detailed.

Use of respirators. This addresses that old problem of wearing respirators with beards. You pretty much prohibit the use of respirators if you have any facial hair. How much is too much? OSHA is not going to split hairs here. That's in the judgment of the employer. In some cases, someone should be shaving every day, or in some cases folks don't have to shave that often.

Employees must do a user seal test when they are putting on a respirator every time. That's that sort of negative and positive pressure test that folks do when they put a respirator on just to make sure it's seated right.

(Changing of slides)

MR. GALASSI: There's a requirement to maintain appropriate surveillance of the workplace. This is somewhat performance oriented and open to kind of a case by case, depending on the workplace, and to reevaluate the respirators affecting this when there are significant changes in the workplace. Okay.

There are specific provisions in the standard under g(3) for ideal age atmospheres. Basically, that the employees have to be -- if one employee goes in, one employee will be on the outside to provide for possible rescue, and that they shall be in communication and both of them will be properly equipped and trained, which would mean SCBAs.

They will consider or use, where feasible, retrieval equipment. Before the outside employee goes in to effect some sort of rescue, they would notify the employer that they are doing that so the employer can send additional assistance.

(Changing of slides)

MR. GALASSI: We can kind of go through these g(3)s. We pretty much covered that.

(Changing of slides)

MR. GALASSI: Just let me say when we're addressing this ideal age provision under g(3), as a guidance, there are two other standards which address ideal age. One, is permit required, confined space, which is very relevant here, and the other is hazwoper. Hazwoper, Section Q, addressing uncontrolled releases of hazardous materials.

Where the respirator standard would fit in is in those stable types of workplaces, where perhaps you know with some certainty what the hazards are and can really address these sorts of things in a very well-developed emergency plan.

(Changing of slides)

MR. GALASSI: g(4). This is one that applies to industrial fire brigades. This is the circumstance where you have what we call an interior structural fire, very ultra-high engulfing blaze, ultra-hazardous. In this case, the standard says that you need two in and two out.

All the provisions of g(3) would apply to this paragraph also. There are a number of, I guess, interpretative statements in the directive on this. Essentially, if there is a rescue type of situation the standard does not come into play.

If it's a lifesaving type of rescue, people can go in and effect that rescue. There's flexibility in terms of the incident commander on the outside, how he organizes himself, how he can assign people to other roles. So, there is some flexibility in this policy. Again, it applies to interior structural fires under fire brigade situations.

We define interior structural fires under our standard, 1910.155, and the fire brigade standard is 156. All this is under Subpart L of Fire Protection.

(Changing of slides)

MR. GALASSI: We can just kind of go through g(4).

(Changing of slides)

MR. GALASSI: Okay. Maintenance and care. Pretty much common sense when we're talking about maintenance and care. You shall maintain, clean, and sanitize your respirator. If you're passing that respirator off to someone else, you should pass it off in sanitary condition.

If you're using it from day to day it's under your standards of sanitation, but you should be keeping it in good working order. You should inspect it, store it away from sunlight, heat, and moisture, follow manufacturer's recommendations in terms of maintaining the respirator. Like I said, it's pretty much common sense. It also has specific requirements for inspecting SCBAs in escape respirators.

(Changing of slides)

MR. GALASSI: Breathing air quality and use. Basically, if you're plugged in to supplied air or getting it through cylinders, that it should be Grade D air. So this provision goes through all the requirements to ensure that that air delivered to the employee is Grade D.

(Changing of slides)

MR. GALASSI: Again, some common sense. If you have, let's say, a non-oil compressor, your main concern is going to be carbon monoxide. You don't want to put the compressor anywhere where they're going to be taking in carbon monoxide into the system.

If you have an oil lubricated compressor, you're going to have alarms, high temperature alarm, carbon monoxide alarm, or do some sort of testing to ensure that carbon monoxide is not being emitted.

(Changing of slides)

MR. GALASSI: Training and information. Okay. Employers must provide effective training to employees who are required to use respirators. I think this provision really dovetails nicely with the hazard communications standard. Hazcom requires identification of all chemical hazards, and this is more focused on respiratory hazards.

As you identify your respiratory hazards, which MSDSs would certainly be valuable in doing that, then you have to perform your reasonable estimate of exposure. What a reasonable estimate of exposure could be is air monitoring, but it doesn't have to be.

It can also be some sort of modeling, if you have enough information available in the workplace, if you know ventilation rate and source, ventilation rates, that sort of thing. Or you can rely upon objective data, which OSHA does in some regulations.

(Changing of slides)

MR. GALASSI: The standard requires or specifies specific things to be trained on. A lot of this is common sense. Why are you wearing the respirator, what are the limitations of the respirator, how do you inspect it, don it, use it, maintain it? What are some of the medical signs and symptoms if the respirator is not working or if you are having problems with the respirator, and what is the general requirement of the standard?

(Changing of slides)

MR. GALASSI: Training is required prior to initial use, and annually, when you detect that the employee perhaps needs additional training.

(Changing of slides)

MR. GALASSI: And this is another one that has some portability, if the employee, in the last 12 months, has received training that would satisfy the current workplace, that would meet the requirement of the standard.

(Changing of slides)

MR. GALASSI: Program evaluation. You have to ask the question, how well is this program working. You have to consult with some employees to get their input on the problems with the program and things of that nature.

(Changing of slides)

MR. GALASSI: Last, but not least, there is a provision for record keeping. Medical records, as you may know, and exposure records are required to be kept under our standard. Also, you have to maintain fit test records by this standard. There is the same confidentiality that applies here.

(Changing of slides)

MR. GALASSI: Post-promulgation activities. I think Adam pretty much addressed all those, the various documents that has been generated by the Agency so we can just proceed.

With that, we can go to questions.

CHAIRMAN BURKHAMMER: Before we get carried away here, we've got a time problem. Can you provide the committee with copies of those slides?

MR. GALASSI: Sure can.

CHAIRMAN BURKHAMMER: And a copy of the final standard? Do you have that?

MR. GALASSI: Sure.

CHAIRMAN BURKHAMMER: We have a lot of discussion on this. The committee would appreciate it if you could come back later this afternoon and we could pick up the discussion then.

Adam, is that possible?

MR. FINKEL: Right after lunch? Sure.

CHAIRMAN BURKHAMMER: Well, no. At 1:00 we have the Assistant Secretary coming in.

Would 3:30 be realistic?

MR. FINKEL: It's the one time I don't have.

CHAIRMAN BURKHAMMER: You don't have 3:30. Okay. How about 2:00 to 3:00?

MR. FINKEL: Sure.

CHAIRMAN BURKHAMMER: Then we can discuss any questions. We can hold them for Adam and Tom until then, and maybe you can have copies of the handouts to share with us. Rather than splitting the handouts and giving us some now and some later, if you could just give them all to us at the same time when you come back at 2:00, we'd appreciate that.

MR. FINKEL: Sure.

CHAIRMAN BURKHAMMER: All right. I think we need to break for lunch. We need to be back here at five minutes to 1:00 so we can all be seated and ready to go for Assistant Secretary Charles Jeffress' discussion with us. So, we are adjourned for lunch until five until 1:00.

(Whereupon, at 12:15 p.m., the meeting was recessed for lunch.)

AFTERNOON SESSION

(Resuming 1:00 p.m.)

CHAIRMAN BURKHAMMER: Before the Assistant Secretary joins us, we've got some things we want to clean up.

First, I'd like to ask the public to discontinue the sidebar conversations during the presentations. It is very difficult to hear up here, and I'm sure it's as difficult to hear out there.

With people talking among yourselves and whispering, when you have 8, 9, or 10 people doing that, the volume increases and people have a difficult time hearing. So, if you would be kind enough to limit the sidebar conversations or go outside so the rest of us can hear, we'd appreciate it. Thank you.

We've got copies of the 170 form to pass out to the committee. Take as many as you like; we have plenty. Like I say, mark these up within the next 30 days, if you would, and get them to Steve Cooper.

I think we've got plenty left for the public if you'd like to take some, and also if you want to mark them up, send them in to Steve Cooper at the Iron Workers. Just put your name and affiliation on the mark-up so they'll know where it came from.

We've invited the respirator people back at 2:00. Adam has agreed to come back with the handouts then. I think the ramifications of the respirator standard are a lot greater than some of us may have initially imagined.

My company has done a survey on the cost of implementing the respiratory standard and it's about double of what it was previously to their implementing it. So, I think we ought to all look at this because there are a lot of things in there. They just called it tweaked, but I call it a little more than tweaked. I think there are some pretty radical changes in there.

Also, we want to get on today Noah Connell and the Multi-Employer Worksite discussion. We may move some of the workgroups back to tomorrow, but I'm sure we're all prepared for that so that won't bother anybody.

Bruce shares with me that Noah tweaked the multi-employer worksite policy. Bruce sent Noah out to San Diego to meet with the construction safety executives last month, and the poor fellow, it was the first time he'd been exposed to a group of piranhas.

(Laughter)

CHAIRMAN BURKHAMMER: They ate him alive. But he did very well. I was very proud of him. He hung in there. We put him right in the center of the thing, because that's part of the deal. Everybody surrounds him. Bruce sat in the center, too. But Bruce is strong enough to fight back. But Noah did great, and we compliment you for that. Please come back. We'll feed you next time, too.

Any comments on the 170 form anybody like to make? Is 30 days all right with everybody; is that plenty of time to do it?

(No response)

CHAIRMAN BURKHAMMER: Did the public get copies? Do we have some to go around up here?

MR. BUCHET: Mr. Chairman, is there an electronic version of the form that we could e-mail to people if we could get it e-mailed to us?

CHAIRMAN BURKHAMMER: You can scan it into your computer.

MR. BUCHET: I have e-mail.

CHAIRMAN BURKHAMMER: Well, scan it into Word and move it into e-mail.

MR. BUCHET: I don't have a scanner.

CHAIRMAN BURKHAMMER: I'm sure Scannel can afford to buy you a scanner.

Why don't we go ahead with Marie's Musculoskeletal Disorders Workgroup report, and maybe we can squeeze that in before Charles gets here.

ACCSH WORKGROUP REPORTS

MUSCULOSKELETAL DISORDERS
 
By Marie Haring Sweeney

DR. SWEENEY: I'll be brief. As the Chairman noted earlier this morning, we had one member from the public, or from labor, and one person from business who participated in our meeting, so it was a total of four.

Fortunately, though, it gave us a lot of time to converse about various issues related to musculoskeletal standards.

In addition, Gary Ore came down and gave us a nice update on the ergo standard preparations. Currently deliberations do not include a standard relative to construction.

We plan to have a meeting shortly, once we get another list of workgroup members, and we will be more than likely discussing the proposal that was drafted in 1995 for an ergonomic standard in construction. We'll have more information probably in another week or so, once we talk to Mr. Jeffress.

Thank you very much.

CHAIRMAN BURKHAMMER: Thank you.

Again, for those of you that missed that workgroup, I must commend Mark Friedman for the outstanding job he did representing the industry all by himself. He talked our ear off for three hours and did a great job of expressing the views that many of you hold. So, Mark, we appreciate that.

Steve, yours is too long to do now. Larry, can you get cranes in?

ACCSH WORKGROUP REPORT

SUBPART N - CRANE
S
 
By Larry Edginton

MR. EDGINTON: Thank you, Mr. Chairman.

The Subpart N workgroup has met once formally. I must say that, as we worked our way through our meeting, which occurred, I think, three and a half months ago or thereabouts, now, we began to realize that our work was going to be much more challenging than what we had originally envisioned.

In recognition of that, I think we decided that perhaps we needed to be pursuing two tracks of work for it. One, understanding what sections of the existing standard may be deficit and why; and two, getting a better handle on just what the level of understanding and current compliance is within the industry.

I think our thoughts were that perhaps we should be thinking about not just modifications to a standard, but whether or not there might be a need for a special emphasis program within the construction directorate focusing on cranes.

That's something we haven't decided one way or the other. But we have a particular interest, as we understand it, in a pilot program that is now under way in Region 1. We're going to be hearing more about that.

With respect to revisions of the standard itself, we had considerable discussion about the appropriateness of including specific portions of B30. I know that there have been some informal discussions with members of the B30 committee since our original meeting with respect to which, if any, portions of the standard should be incorporated.

Throughout all of this, we have had some ongoing discussions with OSHA staff. I might point out that Tony has been real good in keeping on top of me and trying to stay on the straight and narrow.

A number of the individuals who attended our first meeting have subsequently submitted additional names of members for notice of meetings, and we've prepared a mailing list there.

It is my hope that, by the time we meet again, we will be able to come before this committee, at least, and give you a better feel of what our actual work plan is and some timeframe for it.

CHAIRMAN BURKHAMMER: Okay. Thank you, Larry.

Are you satisfied that you have a good mix of members in your group?

MR. EDGINTON: I wasn't initially, but I am now.

CHAIRMAN BURKHAMMER: Okay. Good. Thank you.

Training, Steve?

ACCSH WORKGROUP REPORTS

SAFETY AND HEALTH MANAGEMENT STANDARD - TRAINING
 
By Steve Cloutier


MR. CLOUTIER: The Safety, Health and Training workgroup met last week, with eight people in attendance. Lots of lively discussion took place, with some significant issues coming to the table. There was lengthy discussion talking about defining what frequent and regular inspections were on a construction site.

The consensus of the group was to agree that everybody should be looking at their work areas on a daily basis, and that the controlling employer should monitor what each contractor, each sub, is doing on a weekly basis.

But each employer at the job site should be looking at the work areas, taking notes, putting it in a daily log, doing some write-ups, getting out of the job trailer, looking at your workers, making evaluations, identifying hazards which were supposed to be doing and making sure that those inspections are taking place. And, on a weekly basis, the controlling employer would get together with the various contractors there, employer reps, and review that information.

Noah Connell, of OSHA's directorate of construction, told us that he thought that he would be able to have a copy of the new Construction, Safety and Health Management standard to the workgroup and that it would be out in the fall. We reminded, no, here it was the end of September. We're into the fall. October is a day later.

He was able to tell us, well, he'd get it to us some time by Thanksgiving. Since that time, since I got back to the office, he called and said we're not even going to get it until the first quarter of 1999. But they've got to get it signed off in-house here in the Agency. Once it's signed off, he can come to the workgroup and he will provide us with that document.

We also talked at great length about training. Nothing new to the Agency, nothing new to employers, nothing new to workers. We talked about the OSHA 10 hours, 30 hours at the OSHA Institute.

The first thing that came back to the table was that the workgroup feels very strongly and brings back to the ACCSH committee that, once again, we go on record to make sure that our compliance officers, prior to coming to construction sites, are training in construction methods, methodology, the industry practices, and everything. Nothing new, Mr. Swanson. I've heard that before.

Also, that the Training Institute needs to offer courses on steel erection, blasting, and demolition. This workgroup felt very strongly that those three areas had not been addressed, needed to be addressed.

Then we talked about the 10-hour and the 30-hour course. People looked around the room and talked about what they were doing in-house and what's going on in the industry. I think most of us recognized that the 10-hour course is either all crammed into an 8-hour day, yet we sign off that it's a 10-hour card, nothing new, or it's done in two work days.

So we felt, from the workgroup side, that maybe we should call it an 8-hour course, since that's pretty much what we're doing anyway in the business, and take the additional two hours off of the 10-hour course and take the 30-hour course, the supervisor's training course, and make that a 32-hour course. So you would reduce the 10-hour hazard awareness course down to a one-day course, and take the longer 30-hour and make it a 32-hour course.

They talked about the OSHA 500 course. We reviewed that. We still want to make sure that people are qualified before they come to the course, that they have construction background, they worked in the industry. The course really needed to continue to teach content, but also to teach the teaching skills so you can be a good presenter.

We would like to see the Agency come back, when you go to the 500 course -- in the olden days, some of us sitting here in the room remember when you went to the course, OTI provided you with a set of slides. We didn't have videos back then, but other means of AV material. We think that it should be available now to folks who take the course.

So, when you go to the 500 course, you come out of the 500 course and there's videos, there's slides, there's text material, there's everything available for that instructor to take home with him, be proactive, and immediately implement what they've learned.

We talked about having exams that are computer friendly and on computers. Now we're not doing that. We also felt that at the end of the 500-hour course, and even the 10 and the 30, you should take a quiz so we can document skills retention. Nothing new, but it needs to be done and hasn't been addressed.

We also felt that computer training -- what we saw here this morning, I think, has a possibility, and I'm sure the members of the workgroup would chime in with me that what Salt Lake City is doing with the interactive material that is on the Internet could be used in a training type mode.

So, all those items were discussed. Once we get this document from Noah Connell's office, we will reconvene, have another workgroup session, and, Mr. Chairman, hope to come back to this committee with formal recommendations at that time.

CHAIRMAN BURKHAMMER: Thank you, Steve. Do you want to submit that report? Is your committee ready to submit the report, or do you want to wait until the next meeting?

MR. CLOUTIER: I think we need to wait until the next meeting, and then we'll get the other document.

CHAIRMAN BURKHAMMER: Okay. Very good. Thank you.

Now, we are pleased that the Assistant Secretary has joined us. Charles, if you would take your place at the point table.

REMARKS

By Assistant Secretary Charles Jeffress

MR. JEFFRESS: Or where the hot seat is. I apologize for running a little late. They were having a conference call downstairs with all of the regional administrators, and I needed to give a word to them. I apologize for not being with you right away. I appreciate your waiting for me.

I had hoped to kick things off this morning, but after this meeting was planned, the Office of Management and Budget knocked on the door and said, we'd like you to come talk to us about your budget. I really like and respect this group a whole lot, but had to give budget top priority. So I had a meeting with them this morning on proposals for next year.

What I wanted to do, and would like to do with you, is to talk a little about kind of updates of things that are happening in OSHA. And I'm going to try not to repeat what you're getting from other people that are on the agenda, but talk about from my perspective in the Executive Office, and take questions and open it up to whatever might be on your mind, things that we should talk about.

First, let me start with the budget since that is of high interest right now. We are authorized to continue operating through Friday, and not authorized to operate past Friday. I certainly expect that we will be authorized to operate past Friday.

The appropriations bill for Labor and Health and Human Services is the biggest appropriations bill the Congress has to pass, one of the most controversial, and will probably be the last one passed when it is passed. I hope that either we have a continuing resolution for another few days, or it gets out the door before the end of the day Friday night.

If you've been looking at the Trade Press, you know that the House froze our budget for next year at this year's level. Not only did they freeze it, they transferred $5 million away from Federal enforcement to state programs, state consultation programs.

So, a hit on the Federal budget of over $14 million by not giving us any mandatories and transferring money away. If the House budget were to prevail, it would be a reduction of 140 positions in the OSHA program.

The Senate was much kinder. The Senate bill has a $12 million increase in it for OSHA, so that's more than inflation. It's about $1 million beyond inflation and allows for a little bit of growth.

Each House has passed the bill in their committee. Neither the House nor the Senate has considered it on the floor. The expectation is that there will be some compromise negotiations and they will come up with a compromise bill so that, when it does go to the floor, it will be the same bill in both Houses.

Obviously, I'm hoping that the Senate version prevails, but those deliberations are under way today and hopefully we'll know something by the end of the week. But I expect not any major growth in OSHA. I do think we probably will come out of it with at least the money for inflation so that we don't have any cutback, but probably not much growth involved.

A couple of wrinkles in the budget that are of some interest. A couple of them, perhaps not so much to this group, but I'll mention it. The post office. We have now inherited the Congress-passed law saying the post office shall be treated like any private sector employer. So, beginning last week when the President signed the bill, we are now responsible for treating the post office just like we do anybody else, citations, abatement dates, penalties, 11C discrimination investigations, we inherit all those responsibilities. Up until now, we have treated them as a Federal agency, so we've done some inspections, but there have been no penalties, the abatement dates have not always been stuck to. Discrimination complaints have just been forwarded to the post office and not investigated by us.

So, this represents a significant additional requirement on OSHA, significant additional resources anticipated for it to require.

There's not yet provision of additional money by Congress for the additional responsibility, but it has passed, it is in effect, and we will be working with postal management and the postal labor unions to talk about the transition and what it means.

One other piece of it that may be of some interest to folks here. In the Department of Energy, for a couple of years there has been talk of the Labor Department becoming the regulator of Health and Safety at Department of Energy sites.

Up until last week, in the energy bill there was a provision that this process start this coming fiscal year, with the transfer of OSHA responsibilities of the Lawrence Livermore Laboratory in California.

That provision has now been dropped out of the energy bill, so it does not appear that we will make a start in fiscal year 1999 on doing any external regulation of Department of Energy sites.

Still in the bill, though, is a $1 million transfer from Department of Energy to the Labor Department for more planning and pilot studies for the time at which OSHA does take responsibility for these sites.

Since a whole lot of work at these sites is construction and what some of my folks call deconstruction in terms of tearing the sites apart, or recycling some parts of the sites, I do think you as a group may be interested in what we find and what we prepare for doing at these Department of Energy sites.

But at this point, money for more study and more planning, but apparently not going to be any action by Congress that requires us to assume external regulation in fiscal year 1999. From everything I see, I still believe it's coming, but it may be fiscal year 2000 instead of fiscal year 1999 before it happens.

So, those are the budget concerns before Congress. In terms of our funding of the construction directorate here, again, both House and Senate bills, no major changes. The only difference is if we have to eat the inflationary increase from the House bill, or whether we get the inflationary increase from the Senate.

In terms of other actions of OSHA and the Labor Department that may be of interest. Bruce and Stewart, have we talked about this partnership conference that we're talking about doing in November?

CHAIRMAN BURKHAMMER: Not yet.

MR. JEFFRESS: You've not talked about that. One of our concerns is, in Washington I talk a lot about OSHA working in partnership with business and labor in applying OSHA standards and achieving reductions in injuries and illnesses. I believe that, working together in a cooperative manner with people, that we can make great progress.

We are, in fact, doing that at the area office level, the compliance office level. Regional administrators are doing that all around the country. Because it's happening outside the belt line, there are a lot of folks in Washington that don't realize it's going on. They hear the conversation, but don't see any proof.

What we have decided to do, is have a conference in Washington on November 13 and have people in six of the partnership operations that we have going around the country come and make presentations on what they are doing, how they're working, what the relationship is like between business, labor, and OSHA in these partnerships, and talk about partnership as a way of doing business for OSHA, and partnership as a way of reducing injuries and illnesses. I certainly want to invite you all to it. You'll be getting something in writing on it. It will be just a half a day on Friday the 13th.

We'll have folks from Colorado, the people doing the steel erection CSAC program out there, and folks doing the home safe program out there who will be here to talk. We'll have folks doing the roofer project in the midwest, in Illinois, Ohio, and that area who will be here to participate.

I guess those are the three construction pieces to it. We've got some other folks from food processing coming to talk, and then some chemical companies coming to talk. We'll have other kinds of partnership efforts on display. But let me invite you all to that.

It is an effort on our part to let folks inside the belt line to know what is going on in the area offices around the country where we are working in partnership, and it is my hope that there will be a lot of trade association people there, that there will be a lot of international and union people there, that I can get my friends from the Office of Management and Budget to come there to listen to how things are actually working in the field, and get beyond just listening to my talk here in Washington. So, I'm real pleased with that and real happy to announce that going forward.

On regulatory efforts, safety and health program regulation that we are pursuing. As I discussed with you all at the last meeting, the first step in this is going to be a rule that is for general industry and for maritime.

The previous Advisory Committee on Construction, which many of you all served on, it was very clear that you thought a separate type of rule was necessary for the construction industry. I agree with that.

I don't think what we have for the general industry can be applied to construction without some tailoring, so we're going to go forward with this general industry rule and have a separate one following on its heels for construction.

Where we are on the general industry rule for safety and health programs, is we have got close to -- I guess we've got a draft, I would call it, a regulatory text.

We are starting the SBREFA process, whereby we get comments from small business representatives on the approach we're taking in the safety and health programs.

That process will take about three months. Then we have Executive Office review by Office of Management and Budget. That takes about another three months. So, sometime next spring we should have a public proposal to put out for comment on safety and health programs.

Following behind that will be our standard on ergonomics. This standard also starts out at this point -- we have talked with stakeholders about addressing manufacturing operations, manual handling, and looking at how it should be applied to any employer in the general industry that has had an incident where someone has been hurt, basically, by an ergonomic hazard. We look at that kind of application.

We have held another round of stakeholder meetings a couple of weeks ago. We are now writing draft reg text on that, and it would be my hope to follow on the heels of safety and health programs with a small business representative review through the SBREFA process after the first of the year. Again, following right after that, the Executive Office review, and our plan again to publish a proposal on ergonomics next year.

Also, the third major rule making that is anticipated for next spring is record keeping. I know some of you around the table are interested in this. My goal here is to have this -- we've already had the hearings, we've had the comments, we've responded to the comments, so my expectation is that we will have a final rule published by the first of July.

Then we have some interim reviews, another Executive Office review, we have some reviews that take place before we can publish a final, but to have a final rule published this summer so that, for the second half of calendar year 1999, we can engage with the trade associations, with unions, with state programs and do an education piece for people on how to keep records.

If we're going to change the rules, the least we can do is tell folks how the rules have changed. Even if they don't change dramatically, it's been seven or eight years since OSHA has done a significant effort on education on how to keep records and I think it's time to do that.

So my expectation is, in the second half of 1999, to do a significant education on record keeping, with the new way of keeping records taking effect January 1, 2000. But that will affect all employers who are currently required to keep records. It would affect them all, construction and otherwise.

Respiratory protection. I know you all talked about this a little before lunch, about the new standard.

CHAIRMAN BURKHAMMER: We got about halfway through. We broke.

MR. JEFFRESS: Halfway through and broke. Do I really want to get in the middle of this?

(Laughter)

MR. JEFFRESS: Let me mention one piece of this. I'm not going to go into the standard, but let me mention the piece about the compliance issues. In the standard we had promised that we would publish a guide for small businesses on how to comply with the revised standard.

That compliance guide is not yet out; the standard took effect this week. So the question before me is, how do I keep faith with small businesses that we promised the guide to when the standard has gone into effect without our publishing the guide?

What our intent is, is to enforce the new rule, but for employers who are in compliance with the old rule but not yet in compliance with the new rule, essentially to give another 90 days during which time we will get our compliance guide out and give folks a chance to come into compliance.

It will not be an administrative stay of the standard. The standard is in effect. People are expected to comply. But, where we find violations in the next 90 days, while we will note them and there will be a part of the citation, there will be no penalty. We will not penalize employers, provided they are in compliance with the old standard.

If it is just a matter of not yet gotten into compliance with the new standard, because we haven't done what I promised we would do, we will give another 90 days for compliance with the new standard.

If, however, somebody is not in compliance with the old standard and never was in compliance, then all reassurances are off. We will issue citations and penalties if people are not in compliance with the old standard.

In terms of abatement, one of the things that we had promised is that, once we got the entity guide out, that employers would have six months to come into compliance. So if we find someone who is in compliance with the old one, not yet in compliance with the new one and is waiting on our information, then we will give them a six-month abatement date to get into compliance with the new standards.

So I hope that will address the issue of our having promised assistance to employers. It was specifically promised to the small employers, making this apply to everybody. I don't see treating people differently.

So we will be enforcing the new standard and expecting people to comply within six months, but for the next 90 days we won't be issuing penalties, provided people are in compliance with the old standard.

Next time we will deliver on what we've promised so I don't get in this bind of having to patch it afterwards.

Any comments or questions on that? I know I'm in the middle of something and you all may have more questions about the standard that we need to save for somebody else. But, if there are questions about the compliance issue, I'm happy to speak to them.

Yes, Steve?

MR. CLOUTIER: Could we define a program administrator that's going to oversee the employers' respiratory protection standard? A number of us have discussed, and there's been discussions here inside the beltway and outside the beltway at various contractors and employee firms, is this really a CIH, a certified industrial hygienist? It sure looks like that's who that person needs to be. You can put an awful lot of immense burden on employers and changes to administer this program.

MR. JEFFRESS: When we adopted the standard, I asked about the program administrator provision and we discussed it internally before we released it. It was specifically not a requirement that it be a certain qualification of person, realizing that different people have people already on board who are competent to administer it.

So the ability to have someone other than a certified industrial hygienist do this is permitted under the standard. How much more definition we want to give, I'm not sure. Maybe some reassurance that it doesn't have to be a certified industrial hygienist is what you're asking for. But to put a specific requirement on it, we resisted doing that.

Bruce, do you have any comments on that provision?

MR. SWANSON: No, I have nothing to add. But Dr. Finkel will be back here at 2:00.

MR. JEFFRESS: Okay. But we did get some comments on that when we released it and we did make a statement and response. I'll try to alert Adam to have that statement here to help you with that.

MR. SMITH: I have a question. What is the impact of this medical evaluation questionnaire that is part of this respiratory thing? You know, they've got some questions in there about hobbies and things of that nature. What would that have to do with wearing a respirator?

MR. JEFFRESS: Well, depending on what kind of hobby you're engaged in, you may be exposed to things at home that your work exposure may complicate or make worse. We think that's for the employer's use, to understand what kinds of problems employees may have or may be encountering, or may encounter during the course of their work.

So, I think knowing something about what people do at home or do off the job may well have an impact on how well they do what they do on the job. But the questionnaire, in general, is there because people may be relying on the questionnaire in lieu of a medical exam.

So one option we have, is to require a medical exam for anybody required to wear a respirator. What we did, instead, is allow the use of the questionnaire in some cases, which is simpler and less burdensome on folks. But we wanted the questionnaire to be sufficiently comprehensive to get at any potential complication that might arise from wearing a respirator.

MR. SMITH: At what point is a person disqualified from wearing a respirator, based on this questionnaire?

MR. JEFFRESS: I'm going to get some technical folks here to assist on that. But, clearly, if you've got something in the questionnaire that causes you a problem, you're going to want to get the physician or a licensed health care provider to certify whether somebody can wear them. If it's enough to cause you a problem, I would advise you not to put somebody on a respirator unless you've had somebody check them out.

I'd have to defer. But, again, I'd raise that question again when Adam comes back.

Ellen? Yes. What can you help us with?

MS. ROZNOWSKI: Yes. The way it works, there is an interlocking mechanism with regard to the actual evaluation, which is generally the questionnaire. The questionnaire is filled out by the worker, it goes to the physician or licensed health care professional who makes the evaluation. The results of that evaluation are sent in writing to the employer or contractor with a copy to the employee.

Now, the employer takes this evaluation and, based on what the evaluation says, makes the determination as to whether or not the employee is able to do the work wearing the respirator.

Now, the medical evaluation answers that question, but the final decision is not up to the physician or licensed health care medical practitioner. They merely provide the evaluation upon which the employer makes the final decision.

MR. SMITH: I have always thought that when you ask people questions in regard to the work they are going to do, there should be some relevance. I'm a painter and I can understand a guy would need to know colors, if you want to put red, green, or gray. But what difference does it make whether the guy's color blind or not to wear a respirator?

MS. ROZNOWSKI: Well, the respirators actually have cartridges on them that are color coded, for example. This is something that should be known, as an example, just to anyone who is using a respirator. They may not be able to tell, say the organic vapor cartridge, which is black, from, say, a green cartridge or an orange cartridge, which are effective for different substances. Just as an example. I can't tell you specifically. I was not involved in the tracking of the questionnaire.

CHAIRMAN BURKHAMMER: Also, Ellen, on the new cartridges, the time line on the cartridge changes color when the cartridge becomes bad, so if you're color blind and you can't tell color differences, you're not going to know when your respirator goes bad.

MS. ROZNOWSKI: It's generally on the label. It's in smaller print.

CHAIRMAN BURKHAMMER: Very, very small print.

MS. ROZNOWSKI: Yes. But people are used to looking at the colors, so this is information that is good to know. It may not go into the determination as to whether or not the employee can wear a respirator.

CHAIRMAN BURKHAMMER: Thank you, Ellen.

MR. JEFFRESS: Well, let me open it up to questions folks may have about OSHA, in general, or specifically on what we're doing with construction that I might respond to.

CHAIRMAN BURKHAMMER: On the ergonomic standard, or musculoskeletal in construction, as we like to call ours, you indicated that the ergo standard is going to come out for manufacturing and manual handling. At the last meeting you had asked the committee to establish a workgroup, which we did, to draft a construction "standard" for you all's review, and we're continuing to do that.

Based on your now thinking two or three months later and the fact that the ergo standard is going out for manufacturing and manual handling, do you still want this committee to follow through on that draft?

MR. JEFFRESS: I think it would be helpful to do that. One of the responses I have made to a number of people that are interested in construction and ergonomics in construction are musculoskeletal disorders, MSDs in construction, is to point out that OSHA's got a 10-year history with MSDs and ergo in the general industry, including citations, 5A1 letters, guidelines for the red meat industry, and a couple of proposals, a lot of stakeholder meetings.

I'm fairly confident of what we know, and with the limits of what we know, but what direction we should proceed in general industry. We don't have any of that history in construction. We've not issued any 5A1 letters, to my knowledge, in construction. We've not issued any ergonomic citations in construction. We don't yet have any construction guidelines out.

So, without that history and experience, I'm not as confident of knowing that we have the right direction in construction with respect to ergonomics. It may be that one of the things that this committee could do that would be helpful, considering that in general industry we started off with guidelines for the red meat industry.

Maybe rather than proposing a standard, what you might want to consider is developing a document that this committee believes would be appropriate guidelines, appropriate recommendations for construction industry employers to follow, and get us some experience at this kind of level, but with guidelines and recommendations in construction and people trying to apply them and telling us about their experience with them before we actually move to the regulatory phase.

Of course, I would welcome whatever the committee would have to recommend to me, but given the history in general industry, this might be a better place to start than trying to start right with the reg.

CHAIRMAN BURKHAMMER: Okay. Thank you.

Felipe?

MR. DEVORA: I think at our very first meeting there was some discussion about a program similar to VPP that would exempt smaller general contractors from general inspections.

MR. JEFFRESS: Yes.

MR. DEVORA: Scheduled inspections. Has anything come across your desk that would -- on a local or regional basis, any kind of program or proposal partnering with OSHA we could come up with some kind of proposal that would give smaller general contractors the same benefits that general industry has by some guidelines?

MR. JEFFRESS: Yes. That discussion in the first meeting led to a proposal, a program, which I signed and which we have adopted for demonstration projects, if you will, of excellence in the construction industry for general contractors.

Some of the folks that were really interested in that and had been working towards it for a couple of years had finished their sites, unfortunately, and by the time we got our program in place, no longer had a site to qualify.

Have we got one site in this program yet, Bruce?

MR. SWANSON: I believe Felipe, there is a pilot site out in the State of Colorado under this partners in excellence.

MR. JEFFRESS: I believe so, and that's my memory. I apologize for not having it at the top of my head. I believe we have one site that's been approved. We said we would approve up to four and kind of see where that led us, but that the program is in place and is available if someone wants to apply.

MR. DEVORA: But we're still talking about larger construction sites --

MR. JEFFRESS: I got you.

MR. DEVORA: -- that still require the one-year application, or six-month application.

MR. JEFFRESS: Right.

MR. DEVORA: I'm talking about the six month to one year backbone of the construction industry in this country.

MR. JEFFRESS: There is a proposal which I have approved, not yet for construction, but approved for mobile work sites. My idea in approving that, again, it's a demonstration program like the general contractor one was for people who don't work at a fixed site, looking at the service industry kind of folks, might work different places, different times, but don't have a fixed site.

How do these people demonstrate excellence? For those that do demonstrate excellence, how do we recognize them? So I've approved that and there's been some interest in looking at this to apply to a subcontractor on a construction site, or to the small contractor with a job that's open and shut within less than a year.

As recently as this morning I was being pushed on, how about let's find a way to apply this to subcontractors or to smaller contractors. So it's possible. It's still in fermentation that we get there. I don't know if the mobile work plan is the right way to do it, but --

MR. DEVORA: Well, that just goes back to what I hear a lot of, general contractors trying to do it right, but aren't on these large sites. They have a good safety record, yet they're still under the scrutiny of the general inspection and it pretty well shuts down a job site when that does occur.

They're looking at general industry, going, well, they have a program for them, obviously, because they're the big boys, but, hey, we want some attention to what we're doing also.

MR. JEFFRESS: Sure. I understand.

CHAIRMAN BURKHAMMER: Larry?

MR. EDGINTON: I have questions in two areas. First, revisiting your remarks on the OSHA-DOE transition. If memory serves me correctly, I believe we were previously told that the administration had a commitment to have a transition plan in place by October 1. I'm wondering, did that happen or did that also get hung up as a result of the Congressional actions that you described.

MR. JEFFRESS: Yes. Actually, it was an October 31 date and the Congress was considering passing a bill which required the administration to have a plan in place by October 31. That may yet pass. The closer October 31 gets, the more difficult it is going to be for the administration to have a plan in place because Department of Energy, Department of Labor, Office of Management and Budget are still talking and I guess it's the expectation of all of us that we need to continue to work towards a plan. But I can't give you any assurances that there is a date certain by which it's going to be produced.

MR. EDGINTON: Okay. The second area of questions I had, is events of the last 7 to 10 days, when I became aware of a worker suing OSHA for OSHA's refusal to litigate an 11C complaint, reminds me again of the inherent problems with that section. We've talked about that before and I'm wondering where the Agency is going.

MR. JEFFRESS: Yes. As you know -- did we have a report from the 11C task force in this group? I know we have not had a report. Last year before I came, a task force was appointed here within OSHA, an internal task force, to look at our program of protecting employees from discrimination, employees who had filed a complaint or reported a safety and health hazard.

That task force did a very thorough analysis of what kinds of complaints we were getting, what kinds of findings we were making, what kind of difficulties we had in conducting the investigations, and gave me a detailed report with recommendations on things we need to do to improve in this area.

Some of the things that we need to do are legislative in nature. You know that we enforce not only the anti-discrimination provisions of the OSHA Act, but we also have eight other Federal Acts where we enforce the anti-discrimination provisions.

Every Act has different provisions. So you might have 30 days to file under this Act, 180 days under that Act. If you file under this Act you might be able to collect penalties, damages from the employer. If you're filing this Act, you might not be able to collect any damages.

So one of the initiatives will be a legislative proposal to improve the whistle blower protections, generally, and to bring the OSHA Act protections up to the level of something like the Surface Transportation Act so that employees have that additional protection.

Another area that was of great concern was that the resources allocated to 11C are simply insufficient, that the workload for an 11C inspector is far greater given the kind of work required than for others, and we need to look at providing appropriate resources, sufficient resources, to do that. If there is growth available from the Congress, that's obviously one of the things that I'd have to look at in terms of where we allocate our resources.

Another issue, is once we investigate a case and find some merit, how we get these cases to settlement. Right now, if the employer doesn't settle, then we have to go to U.S. District Court, to try to take it to U.S. District Court.

It's a cumbersome process. There's not many District Court judges that think a lot of small cases is a particularly good way to make law. A better solution would be using the administrative law judge system to adjudicate these cases. That will also take statutory change and tend to propose that as a part of whistle blower protections of the Act.

So, in short, Larry, I'd have to say our 11C program has some significant weaknesses that the Inspector General has noted. Some of it is allocation of resources that I will be addressing, some of it is statutory changes we need to address.

The allegation in the case you talk about where the employee has filed suit against the Labor Department, saying that by being so slow in processing the case we effectively denied him the opportunity.

He had to go through state courts, because there's a time limit in which he could go to state courts. It took us too long to act on it and, therefore, he lost his opportunity to go to state court. So he is suing us for essentially keeping him from having other ways of addressing it.

MR. EDGINTON: And I'm not passing any judgment on the merits of that, but just maybe be mindful.

MR. JEFFRESS: Yes. I'm not passing judgment on the merits of the case, but, in fact, it is an area we need to improve it.

CHAIRMAN BURKHAMMER: Jane?

MS. WILLIAMS: Sir, in our Training Workgroup meeting that we had, it was unanimous, I believe I can say, of our concerns with OTI's 10-hour/30-hour program. The value of it is, of course, certainly appreciated, and with the enhanced efforts on training we really like that.

But we're having a burden with the 10-hour being conducted in 8, or additional overtime hours to employees, or whatever, and the 30 versus 32.

We're hoping that considerations can be given towards making them more user friendly and be given eight hour increments, doing away with time, but more of structure and things that would be covered in those programs.

Would you be able to review that, and if you feel appropriate, lend your support to that? The sacred cow.

MR. JEFFRESS: That's the first time that anyone's ever mentioned to me that the way it's structured creates, essentially, wage hour problems. But I can see why it would.

MS. WILLIAMS: Ten hours is very difficult and many teachers are doing it in 8, signing off on 10, and they're doing it in two days. In particular, in our state, the semiconductor industry is requiring 16 hours, 10 of which is the OSHA requirement, and it is getting very difficult. You have to complete that before you are allowed on their project sites to do construction.

So any help to really make it more user friendly for employer and the students who are sitting there in an 8-hour increment, which is a typical day, and maybe the 30- and a 32-hour, could really be beneficial, we feel.

MR. JEFFRESS: I think we have to start from what is the body of knowledge that needs to be transmitted, and what's a reasonable time to do that. That's where you have to start.

MS. WILLIAMS: That was our concern.

MR. JEFFRESS: And it can be done within two sessions, but an 8-hour session and a 2-hour session doesn't make much sense, does it?

MS. WILLIAMS: No.

MR. JEFFRESS: So I welcome your recommendation and would be happy to look at that.

MS. WILLIAMS: Thank you.

CHAIRMAN BURKHAMMER: On the budget issue, and it kind of ties in with the DOE-OSHA National Academy of Public Administration Review in the study, and I sat on that committee, and one of the recommendations we made was that the more privatization that is done by DOE, the more money that will be transferred back to OSHA to handle the privatization issues.

I notice in the $1 million it probably wasn't included in there, so you probably got stiffed again. Where are we with the budget transfer; is it still allocated waiting for Congress to review?

MR. JEFFRESS: Actually, the $1 million, as of 9:00 this morning, was still in there. But this is something that you need to watch hourly at this point. But that is still in there for the planning for the transition.

I think OMB made a commitment to Congress in the budget presentation that some plan for the DOE transition would be transmitted along with the President's budget message, which is usually the end of January.

So the October deadline that Larry mentioned may not be met, but there is a commitment in the President's budget message to have some statement about this transition and how it is going to happen.

CHAIRMAN BURKHAMMER: Danny?

MR. EVANS: Charles, I know that in the last budget cycle there was $450,000 or $500,000 that was put forward for the pilot program with Oak Ridge, Tennessee, I think.

MR. JEFFRESS: Yes.

MR. EVANS: Do we have any results from that as to outcome of whether it's doable or not?

MR. JEFFRESS: We had a team visiting the Oak Ridge site in July or August, it may have gone over into September. All of the on-site work has been done and they are preparing a report. We are going to give the DOE folks and the contractors on site an opportunity to look at that report and see where we may agree, where we may differ on what kinds of problems we see, what kind of corrections might be appropriate.

In terms of what OSHA's responsibilities are going to be and what we learn from that, that will be contained in the report as well. A couple of things, I know up front.

One, a lot more of this is going to be construction than I expected. I thought about, we are going to be looking at operating facilities, but, in fact, many of them are changing the nature of their operation and it means they're being torn apart and put back together again. So, it's going to be a lot more construction activity than expected.

The exposure to the elements, the radioactive elements or the other chemical and metal hazards, is probably going to be as great or greater than we anticipated, and in some cases we don't have the right rules in place to do that.

Another issue, I think, is going to be radioactivity issues with respect to NRC. The Nuclear Regulatory Commission will retain regulatory responsibility over the active radiation sites, but if we have a forklift truck that goes into a place that has radioactivity present and comes back out and is radioactive, it is then exposing employees in an area that is outside of NRC's jurisdiction with radioactivity and we're going to have to deal with that. So, we are going to have to have the ability to enforce the NRC guidelines or have some way to deal with radioactive hazards that we don't now have.

Those are some of the things, but there will be a report that we will have to share with you all to look at. We just looked at one piece of the Oak Ridge site. It's a huge site, and you then begin to look at the whole thing. We looked at some discrete pieces of it, and to look at what the implications might be for us.

MR. EVANS: I sincerely believe that the Nevada test site probably falls in that same category as far as --

MR. JEFFRESS: Fortunately, that's a state plan state, so Nevada will take care of that.

(Laughter)

MR. EVANS: That may be a problem.

MR. JEFFRESS: There are some huge sites out there and we don't even know the beginnings of the problems.

MR. EVANS: I'm not sure that they do, either.

CHAIRMAN BURKHAMMER: And another part of that DOE-OSHA study was the transfer of the health physics knowledge from DOE and some of the people even who brought that knowledge with them from Paduca, Oak Ridge, and NTS.

MR. JEFFRESS: And we know we're going to need that knowledge, and I certainly hope we're able to try and spur it and not have to generate it ourselves.

CHAIRMAN BURKHAMMER: There's no sense reinventing the wheel.

MR. JEFFRESS: Absolutely.

CHAIRMAN BURKHAMMER: They're going to be laying those people off because you all have jurisdiction.

MR. JEFFRESS: Absolutely. One of the difficulties in all this is, Department of Energy has had three secretaries in three years, so I think when there is some stability over there and some consistent leadership on this issue for three years in a row, we'll be closer to working it out. But I think the change in leadership has caused some questions about what direction DOE wants to go.

CHAIRMAN BURKHAMMER: Steve?

MR. CLOUTIER: Since nobody else has brought it up, I will.

MR. JEFFRESS: I knew I could count on my friends.

MR. CLOUTIER: As a fellow North Carolinian, Subpart M, Subpart L, Subpart R, 6 foot, 10 foot, and 30 foot rule, we need consistency. We're sending the wrong message. Workers bounce from 30 feet. They die. The Agency is going the wrong way there, in steel erection.

We have demonstrated time and time again that a number of employers have had fall protection requirements at a 6-foot or a 10-foot rule and have effectively implemented those programs, and then the proposed standard comes out with a 15- and the 30-foot rule. It's major heartburn for employers and it's major heartburn for employees.

I think it needs to be looked at long and hard and, if anything, we need consistency across the board. Maybe it's the 15-foot rule, and Subpart M goes to 15, and Subpart L goes to 15, and Subpart R is 15. I've got major problems with that and I think the Agency needs to look at it. I know you've got hearings coming up again on it, but it's the wrong message because workers die at 30 feet.

MR. JEFFRESS: It's probably worth talking about a little. For those of you not familiar with what Steve is saying, when we went out for the proposed rule on steel erection, you will recall we used a negotiated rule making and at the table to propose this rule we had representatives of employers, employees, trade associations, everybody that we could identify as a constituency interested in steel erection, we try to get to the table to participate in developing a rule for steel erection.

One of the controversial portions of that is, at what height do steel erectors need to have fall protection provided? The group that was assembled has proposed essentially a 25-foot rule, generally, a 30-foot in some situations, for steel erectors before fall protection is required.

Our commitment to the body, this negotiated rule making body, is that we would propose what they presented to us. That's what they presented to us, and that's what we proposed. It is still a proposal. I encourage those of you who have comments on it, to please make comments.

If industry and labor agree on what this rule should be, OSHA still has the responsibility for making a determination as to what's the best safety and health practice out there. So I cannot defer or delegate my responsibility to another group and I'm accepting this as a proposal, but also am very seriously going to look at what comments come in.

I have been on a number of sites that have 100 percent fall protection for steel erectors from the ground up. It can be done. I would be interested in what folks say when this rule is out there for hearing. But I think your point is well made.

MR. CLOUTIER: Thank you.

CHAIRMAN BURKHAMMER: One of your comments was on the partnership and the upcoming meeting in November. Marie and I and Ellen Roswowski were in the Musculoskeletal Disorders group yesterday and Mark Freedman had a tremendous idea that he offered to share with us today. I think, since you're here, it would be a great time.

Mark, would you mind, please, coming up now and sharing your idea about the partnering between the associations, Labor, and OSHA?

MR. JEFFRESS: Mark doesn't usually need your protection in order to offer me his ideas.

(Laughter)

MR. FREEDMAN: Stew, you promised me there would be an empty room.

CHAIRMAN BURKHAMMER: Well, it was such a good idea, I wanted everybody to hear it.

MR. FREEDMAN: Okay. Here we go. Some time ago I had an idea of OSHA putting out a message beyond the regulated community. I think one of the historic problems has been that OSHA typically puts their information out to those who are regulated and that's it, and it doesn't get out to a broader audience that would help enforce the message of the importance of safety.

To that end, my idea was that there should be essentially a public service announcement generated. My vision is a one-page that could appear, and the obvious place would be ENR, but I'd like to see it go beyond that into some mainstream publications, reinforcing the idea of safety on construction and specifically highlighting the four hazards and the idea that there are very simple, direct things that you can do to prevent the four hazards that are used on the focus inspection screen.

OSHA has said very clearly, we know this is where the bulk of the problems occur. Deal with these and we're going to reduce injuries and fatalities significantly in construction.

My vision would be for a one-pager that says, here's what employers should be doing. For more information, call this toll-free number and get a simple, easy-to-read, this-is-what-you-to-do-fix-this-problem guide. Obviously, this would be an excellent thing to put up on the web site, get that information up there.

The beauty of this ad that I think could be accomplished, is that I would like to see it carry the logos and endorsements of all the available associations and unions at the same time. I honestly don't think that's a hard sell, if it's written in the right tone and seeks to achieve the right message.

My big problem has always been that there hasn't been enough effort to get a market-driven compliance strategy. I mean, OSHA's model--and Charles, you must know this from history--is that OSHA basically puts out the rules and then says, we're going to come by and whack you if you don't comply with these. The enforcement-driven compliance strategy, I think, is a tired strategy and it doesn't have as much breadth as it needs.

What I would like to see is a market-driven compliance strategy where consumers appreciate the value of safety in the workplace and they understand what can be done, and they come to the contractors and say, we expect you to be operating in this manner. That would be the idea behind getting into the mainstream and out beyond the regulated community.

Stew, does that capture our discussion?

CHAIRMAN BURKHAMMER: Yes. Great.

MR. JEFFRESS: Sounds like a great idea.

CHAIRMAN BURKHAMMER: I think the great thing about it is the association logos, the international union logos, and the OSHA all on the same page, preaching the same tune, singing the same sheet of music.

MR. FREEDMAN: Stew committed the national association of Bechtel getting on there, so --

(Laughter)

CHAIRMAN BURKHAMMER: I keep telling him, we're just a small contractor.

(Laughter)

MR. JEFFRESS: I appreciate that suggestion. I think it's a good suggestion. We have been talking about how we do more public awareness campaigns within OSHA to reach out to folks.

I like the suggestion, particularly if the logos would indicate some support for it and some willingness by the associations, by the unions, to help plan it, market it. It would be a partnership I would like to pursue.

MR. FREEDMAN: Let me just emphasize one other point of this. The goal here is information, not regulation. In other words, what you're trying to tell employers here --

MR. JEFFRESS: That's generally your goal. I understand.

MR. FREEDMAN: But if you start saying, just follow this specific standard, that's going to lose your audience.

MR. JEFFRESS: Right. I understand.

CHAIRMAN BURKHAMMER: Thank you, Marc.

Larry?

MR. JEFFRESS: Am I taking questions?

CHAIRMAN BURKHAMMER: Yes. Go ahead.

MR. EVANS: The only comment I want to make is in Nevada, we have a special line item in our budget for $350,000 a year where we do multimedia things like that. One of the parts of that program is that, every three months, we publish the 10 most cited violations in the state and the dollar amounts. We don't publish who they were issued to.

But that has generated a lot of input back to the Safety, Consultation & Training Section asking for help because, although you have a standard that is out there and most likely the employer is aware of it, when you publish the dollar amounts of some of those penalties, that gets their attention better than just knowing that there's a standard there. It's worked real well for the last three or four years.

MR. CLOUTIER: Charles, I think if you contact Howard Stussman, the editor-in-chief of ENR, he's expressed an interest to bring the parties to the table to make this happen, or something similar to, because any time he can champion the safety message where we bring employers, associations, unions, workers together and the Department of Labor, he'd like to champion that.

MR. FREEDMAN: I don't know what the requirements are for PSA, but it would be my sense that, as an issue, this should be easily acquired and I don't think there's a major cost for the advertising. Basically, you're drawing up the ad and getting it out there.

CHAIRMAN BURKHAMMER: Thank you, Marc.

MR. FREEDMAN: And my name will not appear on that, I hope, right?

CHAIRMAN BURKHAMMER: Oh, yeah. Oh, yeah.

(Laughter)

MR. JEFFRESS: He was also talking about ergonomics, wasn't he?

CHAIRMAN BURKHAMMER: Any other questions for Charles, comments?

(No response)

CHAIRMAN BURKHAMMER: Thank you very much for sharing your time with us.

MR. JEFFRESS: And thank you all for putting in your time. I mean, you are the ones who are giving up two days of your time to help give me some advice and the Agency some advice on what we can do better, and I appreciate it. Thank you for what you do.

CHAIRMAN BURKHAMMER: Thank you.

Our respirator team is back in the back of the room. So if you will come back to the table, we will continue with our discussion on the respirator standard.

(Whereupon, at 2:15 p.m., the meeting was recessed, and resumed back on the record at 2:20 p.m.)

SPECIAL PRESENTATIONS (Continued)

RESPIRATOR STANDARD - FINAL RULE

CHAIRMAN BURKHAMMER: Owen, when Charles was here you had two or three questions you asked that were somewhat technical in nature. If you would readdress those to Adam and his team, we might get a little more comprehensive response.

MR. SMITH: Okay. I had asked what color blindness had to do with wearing a respirator, and whether a guy could lift 50 pounds.

MR. FINKEL: Well, the latter one, I'm sure, has to do with self-contained breathing apparatus and other kinds of respirators that require physical demands on the worker. Color blindness has to do with labels, cartridge labels that are color-coded for particular hazards, end-of-service-life indicators that may have a color, sensation of color to know that the cartridge is used up.

MR. SMITH: So if the guy's color blind he can't wear the respirator?

MR. FINKEL: No. The "yes" answers on the mea-questionnaire prompt further evaluation. It's not an automatic rule-out. I'm just looking to make sure. But the "yes" is just to kick you into a position where more face-to-face or more personal contact with the health care provider is required.

That may be as simple as, the person says, yes, I used to smoke. That doesn't rule out respirator use, it just prompts another question to prompt the medical determination that that "yes" answer is not fatal to the ability of the worker to wear the respirator.

MR. SMITH: Well, there are an awful lot of questions. At what point is it determined that the person can't wear the respirator, is it 5 answers, or 10, or 15?

MR. FINKEL: That's going to be a medical judgment made by the health care professional. We're not going to be second-guessing those judgments. We just want the questions to be asked and the information elicited so that the medical people can make that determination.

MR. SMITH: And it appears as though you could have a person that needs to wear one, and then someone else that may ask for one and you're obligated to provide it if he says he wants it. Is that true? I think I saw that somewhere in there. You provide it.

MR. GALASSI: Are you talking about voluntary use?

MR. SMITH: No, no. The guy says, I want a respirator.

MR. GALASSI: He would like one because --

MR. SMITH: He'd say, yeah, look, I don't like the smell of this, I want a respirator.

MR. GALASSI: But there's no over-exposure of any sort.

MR. SMITH: Well, in his mind he thinks it may be.

MR. FINKEL: And that's normally what we call voluntary use. The two requirements for voluntary use are that the employee maintain the respirator in sanitary conditions, stored properly, and inspected, and that they are medically able to wear the respirator. So, yes, it would kick them into the medical evaluations. This is not for filtering face-piece, this is for the elastomeric, rigid --

MR. SMITH: Yes. Because those are the ones that really -- look, I'm a union contractor and in my industry in southern California we just make a practice of sending our people through once a year and getting them tested because this thing is only good for a year.

But I don't know that we send 100 percent of the people. We have 15,000 painters there. Maybe we've got half of them through. Maybe some people out of the others that don't go through there may come and say, you know what, that guy's working down there and you're using that stuff and I don't like the odor, and I want a respirator. Is the employer obligated to give him one?

MR. GALASSI: No. Again, it comes down to exposure. What triggers the respiratory protection standard is an over-exposure of a PL, or in the case of general duty, a TLV or an REL, or some sort of respiratory hazard has to be present. That's what gets someone into the respiratory protection program and all its requirements for fit testing, medical, training, and all that stuff we talked about earlier.

Now, if an employee is not over-exposed, REL, TLV, PEL, there's no respiratory hazard that's been delegated and the employer has done the necessary determination that there's been no hazard there, then it's voluntary use.

The employee is wearing that respirator for some reason, for his own comfort, to eliminate the odor, whatever it may be. But if he or she brings that respirator onto the workplace, the employer has an obligation to ensure that that respirator, in and of itself, does not present a hazard.

And the two areas that we feel it could present a hazard, if it's unsanitary in some way, if it could present a dermatitis hazard or if the person is compromised in some way and not medically able to wear the respirator, they have a heart condition, emphysema, or something like that.

MR. SMITH: But if he brings his respirator there, you know -- if I say, look, I don't think you need a respirator. If this guy brings a respirator and he puts it on, now you're telling me I'm responsible for a medical examination to see whether or not he's able to wear his respirator?

MR. GALASSI: No, a medical screening, basically.

MR. SMITH: But how do I do that? I'm a construction guy. The guy's here today and he's gone tomorrow. You know, you run 200 or 300 people a year through there, and some people wear them and some people don't. How am I going to be responsible for someone that brings something on, I'm going to stop the guy and say, look, you've got to go to the doctor, or fire them?

MR. GALASSI: I mean, in terms of policy guidance -- I guess one point here is that the employer is allowed to prohibit voluntary respirator use in the workplace.

MR. SMITH: Yes. But the only way you can do that, you say, look, you don't wear it or you're fired.

MR. GALASSI: Well, hopefully it won't come down to that situation. If that employee has a respirator and he's been medically evaluated on another site, similar chemicals, similar work conditions, they can use that evidence, documentation.

CHAIRMAN BURKHAMMER: I certainly wouldn't trust somebody else's evaluation of an employee.

MR. GALASSI: Well, what it boils down to, is they should have this physician or licensed health care provider making a recommendation, basically. Is the employee allowed to be in a respiratory protection program? If not, what limitations are on that employee?

That's all they get from the physician or licensed health care provider, and that's something they should be able to take with them, again, if they're going into similar circumstances, similar job.

CHAIRMAN BURKHAMMER: But, again, if you're a small contractor, a painting contractor like Owen, and you've got a couple hundred people a year that goes through your organization and the union shop and you're relying on a licensed health care provider, so every employee, basically, you've got to send to that licensed health care provider to get an evaluation on whether he can or can't wear a respirator, which is, you have to have a licensed health care provider on retainer or you have to have one on your site that's approved.

So it's not only just a simple answer here. I mean, it's a pretty complicated answer to Owen's question. I agree with Owen. I don't know how you're going to be able to do that. Even in a large contractor where we have nurses on most of our sites, it's going to be difficult, especially on one-day employees.

MR. SMITH: I must tell you that each one of those examinations for that test costs $125. That's a lot of money.

CHAIRMAN BURKHAMMER: Michael?

MR. MASTERSON: Just kind of touching on where Stew was at. With the current enforcement policy of multi-employer sites and the general contractor being held accountable, I'm in a situation where I have over 5,000 subcontractors working for me. How do you propose to deal with that situation, and enforcement?

MR. FAIRFAX: Repeat the question.

MR. MASTERSON: Okay. Currently there is an enforcement policy where general contractors are being held accountable for the actions of their subcontractors.

In my case, I have over 5,000 subcontracting firms working for me. That means by what you're saying, that if one of those workers shows up on the site with the voluntary use of a respirator, now I can be held accountable and cited for that use and the failure of that subcontractor to ensure that there was a medical examination or screening, which means a medical evaluation.

How do you propose you're going to deal with the multi-employer sites, particularly the very small contractors or the residential construction industry where you may have one employee for a general contractor overseeing 6, 10, or 12 houses in 6, 10, or 12 different physical locations?

MR. SWANSON: That's a mild misstatement of how the multi-employer policy is really applied by us, Bob. As you will hear later, I hope, we are looking at the general contractors' due diligence on something like this.

If you've got 5,000 subcontractors and somebody shows up on a given day and the general contractor was not aware of it, the question is, could he reasonably, should he reasonably, have been aware of it, before a citation gets issued. I won't answer as to the respiratory part of the question, but on the multi-employer, your worst-case scenario, I think, goes an inch too far.

MR. MASTERSON: Pardon me? It goes how much too far?

MR. SWANSON: It goes an inch too far, is what I said.

CHAIRMAN BURKHAMMER: We'll wait for Noah.

Steve?

MR. CLOUTIER: If you look at Owen's position as an employer in southern California as a painting and decorating contractor who brings a number of painters through the hall to his workplace time and time again, and he's a small employer, can you give me your definition of that program administrator? Because it scares me to death, what he's got to do. What do the larger players have to do? Have you all really looked at the impact and the expenses there?

Owen talked about the $125 for the medical evaluation, and that's probably a low number, to hiring somebody on staff to be this program administrator that all of a sudden it's come out that they're going to be required to have that responsibility to make the decisions.

We've got a panel of four up here. It's not "stump the panel," but those of us around the table have got questions when we see new guidelines coming out. It's tough to make a living now, much less make any money at making a living now in the industry. You all are making it a lot more difficult.

MR. FINKEL: We're not stumped. I guess I'm a little stumped by your question, though, about what is the scary part of designating -- not necessarily hiring, but designating somebody in your employ, maybe yourself, to be accountable for making sure that the program runs properly.

MR. CLOUTIER: But you've got to be an expert in that end of the business. I can say that a painting contractor understands what he's bidding, he understands his materials, he understands his labor costs and he puts a profit and mark-up in there and he goes with it. But he's not an industrial hygienist.

MR. FINKEL: And we're not requiring that person to be an industrial hygienist.

MR. CLOUTIER: But you sure are leaning that way. I heard that from Charles Jeffress earlier, and we've got it on the record now. You don't have to be a CIH, so we understand that.

Most safety professionals are good, strong generalists across the board. But you're squeezing us now to hire additional people to administer programs that you continually upgrade, update, expand upon, add things in. And what looks good right inside the beltway doesn't happen in the field on a regular basis.

MR. FINKEL: I would turn it around and say, how are you going to have people in respirators without somebody with the competency to judge whether the program is functioning properly?

I think we have done a lot to make it as flexible and a not onerous provision. We're not specifying any kind of particular expertise, but the competency concept has been around for a long time and we want to make sure it's --

MR. CLOUTIER: We understand competent person has been around for a long time, but there's more and more to this standard than what's been in standards past. I'm just concerned.

CHAIRMAN BURKHAMMER: I have a question on the program administrator. We have 245 projects ongoing currently, all different states. Each site has a program based on the corporate program, but it's a site-specific program. Is your interpretation that I have to have 245 individual program administrators for each project having one, or can I have one corporate program administrator administering 245 project programs?

MR. FINKEL: As I understand it -- that's an interesting question, because we've been getting a lot of comment in exactly the other direction. But as I understand it, we have an interpretation that is in the Q&A document in the directive as well that answers both your question and the opposite question. I'd say, no.

It's the flexible interpretation. You can have either one corporate level person or site-specific people. The big companies came to us and said, don't force us to have one person accountable, it's too much for any one person.

So, in that case, we allow one PA per division or operation, and in the kind of cases you're talking about, certainly we would allow that there be a centralization to that authority, as long as that person is able to deal with circumstances at those sites and doesn't lose track of what is happening down the line.

MR. CLOUTIER: It's going to cost you a lot of money, still.

CHAIRMAN BURKHAMMER: Any other questions? Owen?

MR. SMITH: Yes. How long are you required to keep these questions that you've got to keep on each person for this examination that they have to have once a year?

MR. GALASSI: The medical records, as defined under the 1910.1020. I believe it's 30 years.

MR. SMITH: So you've got to build a building and hire a guy just to keep the paperwork. When do we work?

MR. GALASSI: The piece of paper that the employer will retain is the single sheet of paper from the physician or licensed health care provider that will state, this employee can or cannot wear a respirator, or what limitations does the employee have for that respirator.

MR. SMITH: But you've got to do that for everybody.

MR. GALASSI: Who wears a respirator.

MR. SMITH: And you said they've got to have a follow-up, and you've got to do it every year.

VOICE: Medical examinations and evaluations are event driven. We do it once.

MR. SMITH: No, no. The state says you've got to do it once a year. Every year.

VOICE: Medical evaluations?

MR. SMITH: Or it says if something changes. So if he gains five pounds, you've got to go back and have it done again.

VOICE: I don't think so. It's event driven. You do it once, and then if there's a problem with your respirator, you have the opportunity to talk with a physician or licensed health care professional after that point. So it is event driven from that point. In other words, if you begin to get irritation, dermatoses. It's not an annual requirement.

MR. SMITH: The way I thought I heard you guys earlier say, and I thought I read in here, too, that once a year you have the examination and you get the certificate and it's good for one year.

VOICE: Only for testing and training.

MR. SMITH: So if you send someone out and have them tested --

VOICE: No, it's not annual. Medical's not annual.

MR. SMITH: Okay. Let me understand this clearly. That if a person has a fit test --

VOICE: Fit testing is annual.

MR. SMITH: That's annual.

VOICE: Fit testing is annual, training is annual.

MR. SMITH: And if he gains five pounds, he's changed, right? So now you have to have him tested again, have to have him fit again, right? His face changes. He gains some weight.

MR. GALASSI: I think there's a little judgment here as far as change in face structure. If I gained five pounds, or Bruce gains five pounds, certainly you won't really notice.

(Laughter)

MR. GALASSI: No offense, Bruce. I'm in that boat. But other people, it may be really conspicuous. But five pounds is probably a very low number. I think we're talking about substantial weight loss where you're seeing that respirator. Everyone would conclude that it's considerable weight loss. So it's not that narrowly read.

MR. SMITH: Let me ask you one other question. What do you guys feel is a reasonable cost for an employer to spend per person to comply with these regulations? And what happen to this Paper Reduction Act that I heard about, because what I hear is a lot more.

VOICE: These are incremental costs over the existing standard.

MR. FINKEL: If I go back and look in the economic analysis, I suspect if I quote you a number you're going to say that that number's not realistic. We don't have somebody here from that group who did those costs. But we think that -- my recollection is that it's under $100 per employee, per year, on average. That seemed to us, and to the people reviewing this standard, to be reasonable, given the incremental benefits of modernizing this standard. Now, I'm sure there is room for questioning those numbers and individual cases, their averages across large subsectors of the economy.

The second part of your question was about paperwork. We think we've reduced paperwork in some areas, but fit testing is important and being able to document that fit testing was done. We didn't reopen the Access to Medical Records standard in doing this. We have a 30-year standard that we didn't change as a part of this rule.

But, in a lot of other cases, the use of questionnaires rather than mandatory physical exams, liberalization of allowing other kinds of health care providers, there's a lot more attention to lower cost means of compliance in this standard than there was in the old one. That's how we think of it and that's why we were anxious to get it done.

MR. SMITH: If you have someone take the written test that you have and you look at it, and they have some "no's" on there, this guy smokes five packs a day, or whatever, but he's been working so he can wear a respirator, is that okay? You've made the determination. Do you have to send it out to the doctor?

MR. FINKEL: If the person who makes the medical determination is licensed and empowered by their state to do that, then we're not going to be second-guessing those determinations. But we do want to make sure that they're made by people who are competent to make the determination and it's going to depend on the complexity of the case.

If the question about whether a person is fit to wear a respirator has to do with a disease process that needs to be carefully diagnosed, we're going to have to require that the state would require in all cases that a physician, or maybe in a couple of states a physician's assistant, do that.

We tried to make allowances for people who wanted to be able to make use of lower-cost practitioners. But, when you get into the area of medical conditions that require a medical diagnosis, we don't have the authority to short-circuit that.

MR. SMITH: Well, it is an either/or? Do you take the examination or you go to a doctor for the fit test and medical determination, or is it both?

MR. FINKEL: Well, again, the fit testing is separate from the medical. There's a medical determination of fitness to wear a respirator, and then there's fit testing. The medical determination can either be a questionnaire, which may prompt further evaluation, or it can be a hands-on physical exam. That's the employer's choice.

There's going to be a large percentage of cases where the questionnaire is sufficient and requires no other follow-up in order to clear the person for respirator use.

MR. SMITH: I've heard premised by some of my union people that at least some people may lose their jobs as a result of this. They've been working and everything has been fine, and now you're saying that they may have to have a medical evaluation.

Assuredly, if the doctor says something's wrong with the guy, he's gone. Why would anybody hire him? Did you guys do any kind of thought to that, and when you figured out what these costs were, did you ever figure in what this physical examination might cost? Because $100 a year won't cover it.

MR. FINKEL: Well, we certainly put the cost of whatever physical exams, whatever percentage we estimated would have to occur, into the costs and those are going to average out. Yes, if you need one it's going to cost more than $100.

As far as the loss of job, remember, this is just triggering a determination that the person needs to be accommodated in some way, whether it's a different kind of respirator that puts fewer demands on the person, or another position that doesn't require respirator use, or diminution of exposures so that respirators are not required. There are lots of things to do other than fire the person as a last resort.

MR. SMITH: No, you've got it wrong. I'm a construction guy. We only do one thing, and that's all there is to do. I don't have a place to take this guy if he can't do this. Oh, you sit over here in the corner, and me pay him $30 an hour.

MR. FINKEL: But in some cases you will have the option of improving conditions at the workplace so that respirators are not necessary.

CHAIRMAN BURKHAMMER: Felipe?

MR. FAIRFAX: Let me just add something onto that. I think we're confusing a few things here. Any construction person like yourself, as far as the medical examination, you can send the person to the physician or you can have this licensed health care person work with them and evaluate the questionnaire. If the licensed health care person evaluating the questionnaire feels the person can wear a respirator, they make that determination and that's that.

If, in going through the answers to the questionnaire, they make the determination that this person needs to see a physician and they send this worker to a physician, and the physician does the evaluation, the only thing going back to the employer is whether or not that person can wear a respirator.

If the physician, in the course of doing an examination, picks up some other medical condition, they share that with the employee, but it's not reported back to the employer. All that goes from the physician to the employer is, can that person or cannot that person wear a respirator.

MR. SMITH: Look, in my situation, this isn't really going to affect me. But let me tell you what the real world says. If we have 15,000 painters and 7,500 or 8,000 of them have tests and I call it for 10 people, I'm going to say, send me 10 people with certificates. If everybody does the same thing, those other guys don't work. They simply do not work. Why in heaven's name would I want to have somebody come on the job where I may have a problem?

MR. FAIRFAX: That's a good point.

MR. FINKEL: Again, though, I think we have to be aware. I don't know your business very well, but it seems to me that most of the respirator use in your line of work is the lower end of the product line. They're disposable or elastomeric, negative pressure, air purifying respirators.

The medical conditions that are going to rule somebody out from being able to wear one of those are

-- they're either not common, or, to the extent that they exist, they're going to be in conjunction with other conditions that are not going to make the person an ideal candidate.

We're talking about serious pulmonary impairment that is going to, in the judgment of a medical professional, put the person at greater risk or greater physiological demand from having to have the minimal breathing resistance of a respirator. This is not going to be ruling out scads of people and ruling out otherwise robust individuals.

MR. SMITH: I'm sorry. You guys missed the point. I'm a smart guy. I don't want to take any chances. And why should I? I've worked all my life for what I've got. Why in the world would I want to expose myself to anything at all? If I can call and only get people that are certified that had the test and they've got a certificate, I'm not going to hire anybody else.

As far as this other kind of respirator, out my way everybody uses double-loners. They fit them and they use the two deals. If I remember correctly, at a lower level using paint, and some kinds of lacquers. I think they run $4 apiece, and generally they'll change them a couple of times a day.

If you get at the higher limits, you use the more exotic type materials, they cost $8 apiece and you still use a couple of them a day.

Sometimes if you've got a lot of stuff in the air, you put a paper filter over it so it doesn't get clogged up and you can get a little more use out of them, but generally they'll change them twice a day.

But why would anybody take someone that can't wear the mask? People like me, we run from comp cases. Any time that you say that you've added something else, and now you say you've got to have all this paper, you're going to designate a person -- hell, I don't know the people who work for me, so that means I've got to go find somebody and give them another job. If he's got another responsibility, he wants some more money. Nobody does something for nothing.

MR. FAIRFAX: You raise, actually, a good point. I think we'll need to take a look at it. I used to work out of a union hall. I can remember, they would call in and say, I want 20 people that can work in heights, or something like that.

MR. SMITH: That's right. And I'll tell you why it works. Out my way, they want to take the people right off the top of the list. Some years ago we needed a guy on the bridge and they said, you know, look, send me a bridge painter. The first five guys weren't qualified, so they reached down, they pulled somebody else. The guy at the top of the list sued and got a couple of thousand dollars.

MR. FAIRFAX: I know what you're talking about. Then you've got people that don't work. We've actually talked about that in health compliances, as far as some ways to resolve that. I don't have a solution right now, but I understand where you're coming from and I think it's something we're going to work more on.

MR. FINKEL: I just don't think that we expect there are going to be a lot of people not being able to get certified to wear negative pressure respirators. If it's carrying around 40 pounds of scuba gear, that's a different matter. But I just don't think we anticipate this hurdle being --

MR. FAIRFAX: What he's getting at, it's not really a hurdle. It's just, he has 10 people who want to wear a respirator and have to have the medical examination. He's going to ask for 10 people so he doesn't have to pay for it to do it himself.

CHAIRMAN BURKHAMMER: Felipe?

MR. DEVORA: I just have a brief comment. I know it must be very frustrating for you guys up there when you work on the standard and you think you've really got something going here that's really going to help the industry, and I'm sure it is as far as protecting the American worker on construction sites.

However, the reality, like Owen has talked about, is there are financial considerations. As a general contractor, it probably wouldn't affect me, other than, when Owen shows up on my job I'm going to make sure he's got a program and it's intact.

But there are job-specific things, like painters and maybe people that do a lot of some other types of things, blasting, or whatever, that it will affect more than others.

But I guess the irony here is that when you passed out the small entity compliance guide, I mean, there's nothing small about it. The problem I have, sometimes I get the feeling that we're over-regulating, that we're just so regulated-conscious that actually we're going backwards as far as furthering safety.

As I can tell you, the mom-and-pop painting shops, not necessarily the unions, are the big painting contractors. Small or not, they're not going to wade through this. They're not going to ask the questions or have the concerns that Owen is having. We're still going to have exposures out there because they're just going to keep going. Rather than wade through all this, they'll just say, we've been doing fine and we're going to keep going, and that's not a good thing.

So I guess what I'm saying is, sometimes you over-regulate something to the point where it gets so onerous, so big, and we're talking multi-employer now as far as when we mention respirators. It gets so big that we're actually going backwards. That's the impression I get.

I hope I'm wrong, but with everything that we've talked about here and the questions raised on respirators, and I don't know what the next standards you all are going to work on, but sometimes it's the old adage, just keep it simple and you're probably protecting more people.

CHAIRMAN BURKHAMMER: Larry?

MR. EDGINTON: I've got questions in three areas. I guess two of them are with respect to implementation of the standard, and the third is in the area of work yet to be done.

There has been considerable discussion amongst myself and many of my colleagues out of the building and construction trades industry with respect to what level of assistance we can provide our employers.

I must say, listening to many of the employers this afternoon, we find ourselves just as vexed in certain areas as are they.

Let me, first, start with a hypothetical. Mr. Smith sort of talked about this earlier. I represent workers in both general industry and construction, although the bulk of our members are in construction. We have not yet heard the general hue and cry out of general industry employees as we're hearing out of our construction employers.

What I'd like to do for just a quick moment is to visit a typical situation which any number of us encounter in the construction industry that makes it a whole lot different than much of general industry.

Oftentimes, we will assign workers to do work in a very small crew, two or three workers, maybe. As I understand the standard, as an employer, I have to make some assessment as to whether or not there's a likely risk of exposure. Then if there is, we have to ensure that either we have engineering controls or PPEUs in place. Sounds pretty simple.

We have designated a program administrator, as was described earlier. As I understanding it, depending on the company and the needs, that could be one individual, that could be a whole bunch of individuals.

But where the difficulty is going to come, I think, for a lot of employers, is when I've got three people on the job site and no supervision, in a technical sense, in terms of any individual who has the ability to hire and fire, or, in some cases, even an ability to take corrective action.

But, yet, I have an obligation to 1) ensure that my program is being adhered to; and 2) that it's effective. The question I pose to you is, how do I do that? Assuming that I have every good intention, how do I do that? That's a very typical working condition of the construction industry.

MR. FINKEL: If you're talking multi-employer/supervisory issues, this is a construction issue that pervades all of our standards.

MR. EDGINTON: And I'm talking about employers who want to do the right thing. I'm saying, how do I do that?

CHAIRMAN BURKHAMMER: Michael?

MR. EDGINTON: I have two other remaining questions.

CHAIRMAN BURKHAMMER: Excuse me. Go ahead, Larry.

MR. EDGINTON: The second is, I'm wondering what, if any, consideration OSHA has given to talking to others within the Department of Labor who are responsible for implementing ADA requirements, because I think Owen's concerns are well-founded. There will be a group of workers who will be discovered to be medically unfit.

Employers, and arguably unions, may find themselves in a position where we are now faced with having another obligation under the ADA in terms of, how do we reasonably accommodate these people, or are we simply going to say, by virtue of them being medically unfit they're no longer going to be employed.

If that's the case, then I think we have a lot more to talk about with respect to where we're going to go with that. I think all of us need to be talking more about that.

The last area. Many of us expected when the standard came out that it would include assigned protection factors for respirators, and it did not. We had heard that you were going to continue work on that, or work would be done later. What's happening with that work, if anything?

MR. FINKEL: We are continuing to work on the APS. We expect to have them out. I'm not going to make any prediction about the time. What's happened is, the more we look into the situation of how the APFs from ANSI and NIOSH got there in the first place, the more product-by-product or type-by-type, we discovered that there is, in fact, zero data underlying those judgments.

So not only have we had to go back to a lot of the companies and get raw data that has never been published, but in some cases we are now working with some of the manufacturers, and, in some cases on our own volition, are doing tests of respirators that have never been tested before.

So it's taking longer than we expected, but I still hope within six months to a year, that sort of time frame, to have a table. We've got some of the numbers internally already, but there are huge gaps in the table where it was just people sitting around saying, well, you know, this looks like something twice as good as something else, so even though it's never been tested anywhere, we'll assign it a number.

CHAIRMAN BURKHAMMER: Before Michael gets on, he's waiting with baited breath to speak. Going back to what Owen brought up earlier, he gets six painters out of the hall and he sends them down to be tested, and one of them is diagnosed with pre-influenza or pre-silicosis.

The guy comes back to Owen and says, well, I failed my respirator physical, but, under ADA, Owen, you've got to give me a job. You've got to put me doing something. You've got to make some reasonable accommodations for me to work on your job.

Well, he's got to go get another painter because he needed six. Now he's got six painters and another person there that he's got to find a job for at $30 an hour. When you look at it that way, the ramifications for an employer, and especially a small employer, grow enormously and the cost increases. Just a statement.

Michael?

MR. BUCHET: I'm going to run out of time because everybody says something that gives me something else to say. So why don't we tackle the ADA? First of all, it may be that being able to breathe through a respirator is a basic component of that job description, and if they can't do it, they can't do it. The ADA requirement is then going to disappear.

I had another list of things. Let me, first, say I speak for the National Safety Council's Construction Division and we had lengthy discussion on this topic at our spring meeting in Chandler, Arizona.

We had a representative from the Directorate of Construction, Dave Morgan, helping us out. We had an industrial hygienist from St. Paul Fire and Marine, and 3-M sent us somebody to talk about the NIOSH standards.

Questions arose then that I think echo and build on some of the ones that we've been having now. The trigger question. When does a medical evaluation have to take place with a change in condition? We had some painting contractors who were concerned about that. They said, all right.

We get everybody set up on our crew, and they're wearing half-face respirators. But then we're going to send them somewhere where the concentration goes up and we have to do full face. As we understand this now, do we need to do another medical evaluation? The answer we came up with was, probably, yes.

The next part of the question was, would there be a way to do a blanket physical ahead of time that would allow you to do this evaluation one time to include various types of respirators and various levels of concentrations.

MR. FINKEL: I think the answer is yes to that second one. I don't see --

MR. BUCHET: Well, it's the "I think" that troubles a lot of people. If you could set it up so that you will know that you'll be working people in open spaces, working with certain concentrations of certain paints, solvents, or coatings, but you also know that the same crew is going to inside a water tank and use something else, or a new confined space and use something else that would require a much greater degree of respiratory protection. How do you structure this evaluation process so you only do it one time for your biggest scope of work?

MR. FINKEL: I think that's built into the standard. As long as the employer lets the health provider -- the health provider is going to come back with any limitations on respirator use, if any. If those limitations are inability to wear SCBA, that's going to come out of the exam. If it's limitations based on pulmonary function, that's going to come out. They're going to be specific to --

MR. BUCHET: I think we arrived at that point and then we said, well, that sounds very much like a fixed installation; you go to work in one place and we can predict what's going to happen.

The people who were raising these questions had a scenario where they would qualify their crew, but their crew might move from state to state and would move from indoors to outdoors, indoors to inside a confined space. They would not be able to provide, necessarily, all the chemicals that they would be exposed to.

They would be able to provide enough exposure so you could say, yes, you're going to need to wear a full-face respirator, you need an SCBA, but they wouldn't be able to tell us what the chemical was, necessarily, that they were going to be faced with.

Then they said, well, when we're telling the medical evaluator, the licensed health care professional, what the environment is going to be, how specific is OSHA going to require us to be?

MR. GALASSI: I guess, first, in your example, here we're focusing on the revised respirator standard and the medical evaluation portion. I think once you get into confined space, you're kind of under different rules. I mean, albeit they have to wear their respiratory protection, but there's a different set of things which are triggered by that standard.

MR. BUCHET: I didn't mean to mislead you that way. I should have just said much higher concentrations. Forget the confined space.

MR. GALASSI: Okay.

MR. BUCHET: That certainly is the scenario. The worries that we were discussing were, as you go up in this level of protection, respiratory protection, how can an employer do a blanket medical evaluation that would cover everything once a year, once a lifetime?

A lot of people were worried that the scenarios would change. You would call, and some were union, some were not. You would call your labor pool and say, I need people who can wear a half-face respirator, and they come out. The same crew gets sent across the state line and has to wear a full-face. Is there a way to prequalify that group?

MR. FAIRFAX: I think the answer is yes to that. I mean, we're not really so much looking at the specific substances, but if you tell the licensed health care person that this person may be wearing a dust mask, they may be wearing a half mask, they may be wearing a full face.

They may have to be wearing an air supply or an SCBA because they're going to go into a potentially high IDLH atmosphere. This is leaving confined space out, which is a potentially IDLH atmosphere. That person doing the evaluation comes back to you and says, this person can wear any of these respirators, they can carry that with them. That answers --

MR. FINKEL: The substance won't enter into it. The substance will change, the selection changes, your responsibilities, but the health care professional doesn't need to know. These are not comprehensive substance-by-substance evaluations. We aren't looking for sensitized people, or allergens, or anything like that. It's just fitness to wear the product.

MR. BUCHET: That will make a lot of people very comfortable.

MR. FAIRFAX: I just want to add on a couple of things. I've been writing some things down and making mental notes, and whatnot. But any time OSHA comes out with a standard, and we'll look at Hazcom as a perfect example, we started out, that affected your industry, it affected across the board like this does.

There's lots of issues that we don't have an answer to because we can't think of everything. We come out with interpretations, we revise the directive, we change our compliance, the way we comply with things.

Hazcom, as an example. I've used this example before with material safety data sheets. When the data sheets came out everyone was in a panic because there was no data sheet on the market that met all of the requirements of what was in the standard. We didn't go out and just start citing everyone across the board, all the employers, because they didn't have the right data sheet with all the information. A lot of this is going to be the same way with this standard.

As you raise all these what-if questions, we will write interpretations, and when we get a certain number of interpretations, we will revise our Q&A document, we will revise the compliance directive, and we'll deal with them.

I expect there will be, I think, a fair and reasonable enforcement of this standard. As the years progress and we get more and more into it, and people get more refined, our level of what we expect and what we're going to cite an employer for is going to increase.

I'm sorry. Go on with your questions.

MR. BUCHET: Let me jump to the medical evaluation process itself. We understood, at least in our discussions, that the paper questionnaire is given to the employee who has been tagged as probably going to wear a respirator, that the employee got to fill that out with a certain degree of privacy and that the employer did not get to see the questionnaire.

The questionnaires were then sent to this licensed health care professional, who either sends it back, yes, can wear a respirator, no, can't wear a respirator and needs further medical examination.

The question came up then, does that licensed health care professional have the right at that point to spend the employer's money for that further medical exam, or is there an interim, comes back to the employer, needs further medical exam. The employer says, I'm not going to designate you to wear a respirator and I'm not paying the 300 bucks for the next level physical.

MR. FINKEL: I think the employer has the right to intervene in between and say you're not authorized to --

MR. BUCHET: The right to intervene is not the same as saying the first licensed health care professional is going to send the employer notification that this person needs further medical exam before the employee actually goes and gets it. It may simply be a timing issue, but it was one that our crowd was fairly sensitive to because they thought, once we send them away, that they're in this medical evaluation system.

If the wrong box is X'd and the licensed health care professional says this is a trigger for me, they're going for a much more extensive physical work-up, it may simply be that the employer is going to say, I'm not going to give you that job, I don't want to pay for that.

MR. FINKEL: Well, certainly there is nothing in the standard that would preclude an employer and the health care professional from having an arrangement whereby the health care professional must call and ask for permission to act. Whether we require that to happen, I'm not sure. That's between you and the employee.

MR. GALASSI: Obviously, that sounds like a loophole in the system that could occur, and something, perhaps, we didn't foresee. I mean, ideally it should be mailed to the licensed health care provider. He should make independent judgments about medical care and come back to the employer with a recommendation.

MR. BUCHET: I've got one other, but go ahead if it's on this topic.

CHAIRMAN BURKHAMMER: Mailing it is three days. If you've got a one-day employee --

(Laughter)

MR. BUCHET: Well, and the other scenario -- again, the Construction Division of the National Safety Council is open to all comers. We have labor and management. There were some discussions about how you actually work in a joint way to meet some of these requirements.

Some of the examples showed a fair amount of initiative. That is, do massive screenings at the hall with registered nurses or appropriate licensed health care professionals who have the right to refer the people.

There was the catch, because apparently some were going through these screenings and the screening was, check this, go down the hall and see the doctor, and there was no time to intervene at that point. It was like (snaps fingers) that quick.

The time lag issue for short-term employees is another issue. The outcome of the discussion was that there were plenty of ways to jointly figure out how to handle some of these logistics.

One of the suggestions was something like the creation of a certification passport, which has been tried in many places in the country for other things like the OSHA 10-hour, the 30-hour process safety management.

I have no idea where those discussions went, I just know that they took place and that some members of labor and some members of management thought they might be able to work out a process, including the health care providers, how to make this thing work more smoothly. Thank you, Mr. Chairman.

CHAIRMAN BURKHAMMER: Larry, wasn't that passport tried with the crane operator certifications?

MR. EDGINTON: Right.

CHAIRMAN BURKHAMMER: Was there any success with that?

MR. EDGINTON: Moderate.

CHAIRMAN BURKHAMMER: Moderate.

MR. BUCHET: You have, what is it, the Ohio passport that OSHA is involved with, some of the building trades? What's the name of the program in Philadelphia for the --

MR. FAIRFAX: Built Right.

MR. BUCHET: There are other systems around.

MR. FAIRFAX: Can I ask a question of you folks?

MR. BUCHET: Go ahead.

MR. FAIRFAX: You raised an issue of this one-day employee that has to wear a respirator. This is just for my information. But unless you're hiring somebody to go in on an asbestos job, or a lead job or something where you know there's an over-exposure, do you have that many people that you hire for one day where you're going to put them in an over-exposure situation where they're going to have to wear a respirator?

MR. SMITH: Before you call, you say, send me a spray man. The guy comes out, he's got a spray mask, you give him this respirator. You give him the cartridges, because they're disposable. He may work one day or two days, but I'll tell you what I think the fall out is going to be.

The workforce is going to be much younger because you're going to force out all of the older people and anyone that has any kind of medical problem, period. Because if a guy goes down and he fails and he says, well, he didn't pass, you can bet your bottom dollar he's not going to work, or he's going to work until the end of that job and he's down the road and you're not going to hire the guy back because you're going to say, this is an accident waiting to happen. I'm going to get a medical problem. This guy is going to file a comp case on me for something.

MR. FAIRFAX: On the other end, I've done a tremendous number of fatality investigations where they put a respirator on a person who wasn't medically able to wear a respirator, they had a heart attack, and the employer was sued because the pathologist, or whoever it was, the coroner, said he died because he put extra strain on his heart because he wore a respirator and he wasn't able to wear it.

MR. SMITH: I got sued by a guy who was walking up they steps, and he weighed 150 pounds and carried a 5-gallon can with 2 gallons of paint it. By the time he got to the top of the steps, the attorney said he was like Charles Atlas. He was 150, then he was 300 pounds, and it made his heart fail.

CHAIRMAN BURKHAMMER: Jane?

MS. WILLIAMS: My only comment is in support of most of the things I've heard, especially Owen. I'm very concerned with worker displacement. In addition to everything you've said, which is exactly what's going to happen, the thing that hasn't been mentioned is with our litigious society, what medical professional is going to risk, even if a gentleman comes in there with a case of the flu or he's not sure, is he going to risk okaying that person to wear a respirator in fear that he could be brought into a triangle of litigation because he approved this person to do so, or is he going to say further evaluation or unfit because he doesn't want to risk it? I do think worker displacement is a viable thing that will happen from this.

CHAIRMAN BURKHAMMER: Danny?

MR. EVANS: Coming from a field where we had to have a physical examination yearly to wear respirators, for 25 years I worked in a chemical plant and we wore respirators almost daily, all kinds. Escape respirators, full-face respirators, dealing with all types of chemicals.

I can only remember three people in 25 years that were ever medically excused from wearing a respirator. I don't think it's that big a deal. I think it makes a big difference in putting someone out there in a respirator, as someone else has said, that wasn't qualified to wear a respirator.

I don't believe it's that big a deal. They had pulmonary function tests and they would check you up front and make sure that you could wear all three respirators that they had there. Once you passed that physical, you were fine. I can only remember three people that were ever said wasn't physically able to work there. And we had all age groups there, from 18 to 65. I don't think it's that big of a deal.

CHAIRMAN BURKHAMMER: Marie?

DR. SWEENEY: Just one question, Adam. In your evaluation did you estimate how many people who would need to respirators would, in fact, fail the evaluation?

MR. FINKEL: Why don't we keep going and I'll find that.

CHAIRMAN BURKHAMMER: Owen?

MR. SMITH: Well, I was just going to say that I think it's quite different when you're dealing with a plant. What you said, is those people -- they took the test and passed it, and then it wasn't a problem.

That's probably true when you're just dealing with a known population. You've got the same people every day and you don't have to worry about it once they do what they do. But I think the construction industry is quite different.

CHAIRMAN BURKHAMMER: Well, I think we've beat up this team enough.

MR. SMITH: Yes. I apologize.

MR. FINKEL: That's okay. We'll have to get back to you. It's not in the Federal Register document, it's in the full economic analysis. I can have somebody from that group get back to you.

I just want to make one real quick comment from Mr. Devora about the simplicity. We've been here for more than an hour. You've thought of a lot of questions that we have heard of and we put the answers to on the web in that guide, and you've thought of a number that we hadn't thought of.

This is as short and performance-oriented a standard as we've done in a long time. As a consequence, the amount of interpretative material is proliferating.

So we wish we could have written a five-page small entity guide to explain everything you need to know about the standard, but that would not have been helpful. We put something together that has a lot more than a lot of people will need, but hopefully has everything that somebody with a million questions will need. Maybe we should do more than one version of each of these documents.

I feel bad that we are always caught in between the people who wave around the thick documents and say over-regulation just because it's thick, and then people who look at the reg text and say, it's gotten too short, where's all the proscription, where's all the stuff that tells exactly what to do. Well, we took that out because of the other group that told us it was too proscriptive. So, we're doing what we can.

CHAIRMAN BURKHAMMER: Thank you all very much. Appreciate it.

Now we'd like to hear our heat stress update with Elise Handelman, please.

OTHER PRESENTATIONS

HEAT STRESS UPDATE
 
By Elise Handelman

MS. HANDELMAN: Good afternoon. I always seem to end up at the end of these meetings, which suits me fine.

I wanted to just come back. I asked to get on the agenda today just to sort of update you again on a project that we've worked on out of the Directorate of Technical Support in conjunctive with the Directorate of Construction. I brought with me today Theresa Luie, who is the intern who did most of the work on this project. I just wanted to give you an opportunity to put a face with the project.

This project started this springtime, actually, where we took a look at some of the fatalities and began to try and work on some things related to heat stress.

Theresa came to us, as you may remember. She has had about five years' experience as a safety professional and worked out at an institution in the Mojave Desert, so we thought she was well-equipped to discuss heat stress illnesses and heat-related illnesses.

She came to us as an intern out of the University of North Carolina, and we put her to work on this project because she was particularly interested in doing something related to construction.

We talked to Ellen Roswowksi and Barrien Zettler and they told us that this might be a good direction for her to go, and that's what we did.

What you have in front of you is the outcome of the efforts that we put forth on that, in conjunction with the Office of Public Affairs, who helped us do some of the graphics, the layout, and do a little bit of the formatting, and so forth. We tried to keep this in what we call plain language. In fact, some of the language that Theresa and I offered, they rejected as little too guttural. But we did make it as simple and plain English as we could.

There's another version in Spanish that we had hoped to have to show you today. It will be identical to this, but translated into Spanish. That will be available in the next week.

These are available out of the Office of Publications. This really is sort of the tip of the iceberg, because what we did in the process of putting this together was, Therese developed a very extensive resource file on heat-related illnesses that she's made available to our field people as they begin to look at, particularly fatality reports related to environmental heat. So, we're hoping to become a new resource for the field people as they start to do compliance and inspections.

So that's the extent of my presentation; a lot simpler than the one you just finished. I just wanted to let you know that it's available. We have no plan to formally circulate this. There's a bunch of people who gave Therese input on this and we'll be sending a note out to them to let them know it's available. We'd be happy to send it to any of you or channel it through mechanisms that you might suggest.

CHAIRMAN BURKHAMMER: Are these free?

MS. HANDELMAN: Yes, sir. Your tax dollars at work.

CHAIRMAN BURKHAMMER: Can we put in an order?

MS. HANDELMAN: Yes.

CHAIRMAN BURKHAMMER: Can I get 37,000 of these?

(Laughter)

MS. HANDELMAN: Thirty-seven thousand. There's no copyright attached to this and you're welcome to reproduce it at your convenience.

CHAIRMAN BURKHAMMER: Good.

MR. SMITH: I have a question. Is there an ideal temperature for work, or is there a point at which it gets so warm that it becomes kind of non-productive?

MS. HANDELMAN: Well, there's a combination of factors. Usually it's the heat and humidity. I probably should ask Therese to answer that, as a technical question. But it's usually a combination of factors, not just temperature.

MR. MASTERSON: First off, I want to compliment you all because this is one of the more user-friendly things that I've seen come out of OSHA, that the person in the field that has to -- not putting anybody else down, but this is something that the worker can use. And I think you all have done a good job.

MS. HANDELMAN: Thank you.

MR. MASTERSON: I think it needs to formally go out, though. I think it needs to be more than just be available. I think that some form of outreach on your all's part or the Agency's part to get that into the hands of labor associations, anyplace that would get it actually into the hands of the workers so that they'll have it.

The other thing is, last time you were here you said you were working on cold as well.

MS. HANDELMAN: I don't remember saying that. We have had a lot of interest in that, though, and I'd be interested to hear from you all what your recommendations might be about that. We have had some interest in doing something similar, but for cold. I don't know.

CHAIRMAN BURKHAMMER: Absolutely. I think most all of us have projects or labor that work in cold climates. We could certainly use one of these just like this for cold, also. Also, free.

MS. HANDELMAN: Well, since we're getting the heat stress one out in October, maybe we can get the cold one out, say, maybe January.

MR. MASTERSON: If you work fast, you can get it out in time for January and February.

MS. HANDELMAN: Well, in reality -- I mean, I'm joking about the timeframe, but in reality, the fact that we got this out in October is not terribly worrisome to me because it will probably take four to five months to get this circulated and, as you said, get it mailed out and get it into the hands of -- it doesn't do much -- I mean, we're delighted to have it in your hands, but the idea is to get it in the hands of the workers. That's probably going to take a number of months. Hopefully, we'll get that done before spring when the weather begins to heat up again.

CHAIRMAN BURKHAMMER: Jane?

MS. WILLIAMS: Would you be the person I could check with to see when exactly the finished form was available? Because I would be very interested in that.

MS. HANDELMAN: Yes, that would be fine. If you want to call our office, we could let you know, or you could call the publications office. They're at 202-219-4667; is that right?

CHAIRMAN BURKHAMMER: Jane, Bruce's shop is going to mail us all one on the committee when it comes out in Spanish.

MS. WILLIAMS: Thank you.

MS. HANDELMAN: We'll work with Bruce to see about who it should be mailed out to. Maybe he can help direct our mailings.

CHAIRMAN BURKHAMMER: Good. Marie?

DR. SWEENEY: Two questions. Is it going to be on your web page, and why not put the web page citation, web page address on there? It would be something useful.

MS. HANDELMAN: It may well go on the web page. I can take that recommendation back. I guess I was kind of thinking that I didn't expect a lot of -- maybe I'm wrong. I didn't expect that construction laborers would have access to web pages, but maybe their employers would.

DR. SWEENEY: Well, it's not only construction. There are a lot of people who work outside, agriculture, other things like that.

CHAIRMAN BURKHAMMER: This is a great training tool, too.

DR. SWEENEY: I'm from NIOSH. We put all of our products on the web.

CHAIRMAN BURKHAMMER: Michael?

MR. BUCHET: We shouldn't just say this applies to construction, because a lot of people who work in maritime or general industry suffer the same effects of heat, maybe compounded by strip heaters for the steel if they're welding, or burners, heaters, or environmental heaters, all sorts of things.

Again, I'm from the National Safety Council. We would love to help you refine some of the points on this. As you may recall, in the OSHA standards, where it says, "Red Cross training or other suitable," the National Safety Council is the other suitable first aid/CPR deliverer in the United States, and we'd like to work very much with you on cold.

MS. HANDELMAN: Thank you.

MR. BUCHET: Sure.

CHAIRMAN BURKHAMMER: Thank you. This is great. Appreciate it.

MS. HANDELMAN: Thank you.

CHAIRMAN BURKHAMMER: Wait a minute. Steve had a comment. I'm sorry, Steve.

MR. CLOUTIER: I'd like to see the Agency also reduce this to a hard hat type detail similar to what NIOSH did and the Agency did with the silica decal.

MS. HANDELMAN: I'm sorry. I'm not familiar with the project you're talking about. A hard hat decal?

MR. CLOUTIER: A hard hat decal. If you check with your folks that were in the Agency that did the silica program --

MS. HANDELMAN: Oh, silica. I didn't hear what you said.

MR. CLOUTIER: They've got a great decal you can put on hard hats and you can take two or three key points on both sides of this and get it out to workers and have it available. This is kind of hard to put in your pocket unless you fold it all up. Just the thermometer works great.

CHAIRMAN BURKHAMMER: The thermometer alone would be good, just the wording there.

MR. CLOUTIER: Just the wording and a couple of key bullets there, to call 911 and get help on the way, and get some shade.

CHAIRMAN BURKHAMMER: No, not call 911, no.

MR. CLOUTIER: Let's call the news media, right?

(Laughter)

MS. HANDELMAN: Okay. Thank you.

CHAIRMAN BURKHAMMER: Bruce?

MR. SWANSON: Two other quick comments. One, let me forewarn you that you're going to find a paucity of information when you start looking at the effects of cold weather on workers. From having to promulgate many years ago a standard in the State of Minnesota, we ran into that. It's amazing, the research that has not been done, apparently.

Secondly, just a throw-away line, I would like to ask Noah to make sure that the multi-employer policy gets done in this user-friendly form.

CHAIRMAN BURKHAMMER: Hear, hear.

MR. SWANSON: And I hope Mr. Masterson accepts it.

CHAIRMAN BURKHAMMER: Michael?

MR. BUCHET: The lack of cold weather working condition information may be in the civilian sector. If you talked to the Army's lab of Nadic Mass, the Marine Corps Mountain Warfare Training Center in Pickle Meadows, California, and even for Minnesota, there's a little camp up there called Ripley that the Department of Defense uses all the time for conducting cold weather operations.

There is a wealth of information about how long you can go, how many calories you burn up, how much food you need, how much heat you're losing that's been done in both places that may be something you can build on.

CHAIRMAN BURKHAMMER: Plus, the Defense Command in Antarctica has a tremendous program.

MS. HANDELMAN: The Finnish Institute for Occupational Health has a lot of information on cold as well, and most of their stuff is in English.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: I just want to say, the Air Force also has a program.

CHAIRMAN BURKHAMMER: Very good. Thank you both. Appreciate it.

MS. HANDELMAN: Thank you.

CHAIRMAN BURKHAMMER: Sometimes it works out that we save the best for last. Without further ado, here's Noah. ;

OTHER PRESENTATIONS

MULTI-EMPLOYER WORKSITE POLICY - CLARIFICATIONS
 
By Noah Connell

MR. CONNELL: This will be quick.

CHAIRMAN BURKHAMMER: No, this will be long. This may even go into tomorrow.

MR. CONNELL: Good afternoon. Thank you for this opportunity to be here. It's a pleasure for me to be here. I have some handouts. I'm Noah Connell with the Directorate of Construction, Construction Standards and Compliance Assistance.

I have some handouts. They're not quite as handy as what you just saw, although I guess I wouldn't be shocked if one day someone came up with a bumper sticker on the topic of multi-employer.

I have two handouts. One, is just a reproduction of the current multi-employer policy that is in OSHA's procedures manual called firm, so it's just a reproduction of what we have right now. The second document is a draft of a revision to that. So, I'll hand those out right now.

CHAIRMAN BURKHAMMER: Noah, is that second document clearly identified as a draft?

MR. CONNELL: It says "draft" right there.

CHAIRMAN BURKHAMMER: That ought to do it.

MR. CONNELL: It's only the first page.

Let me just take a second to describe the process that led to this and tell you a little bit about where we are in the process, since we're certainly not at an end point.

We convened a multi-employer task group within OSHA and a number of recommendations came out of that group. We decided that one of the things we can do on addressing the issue of multi-employer is to come up with a clearer articulation of what our policy is.

That's because we have the sense that we may not have been as effective as we would have liked in the past in communicating what the multi-employer policy is out to the field. So, this is an effort to improve on that.

What you see here is a draft. We received approval to circulate this draft for comment and we really are sincere in inviting comments from you to help us make this as good a document as we can. So, we are eager to hear from you and to get your suggestions on any changes.

One of the concepts that we're trying to emphasize in this draft is that the application of the multi-employer policy is a two-step process. The first step, is the extent to which an employer is potentially citable. That means, does the employer have enough control, enough authority at the site to oversee, and to some extent control, the other contractor that has been cited.

If the answer to that question is yes, that is not the end of the analysis. If the answer to that question is yes, that, by itself, does not mean that they should be cited. There is a second step.

The second step is, has that employer met its obligation to exercise reasonable care in overseeing the other contractor? We want to bring out two points as clearly as we can.

One, is the standard of reasonable care for what I'll call the front-line employer, the employer of the employee that is swinging the hammer. That's a very high standard of care with respect to discovering and correcting hazards.

That is not the same standard of care that applies to a controlling contractor with respect to someone else's employees. The standard of care for that controlling contractor is not as high in that respect.

In this document, one of the ways we're trying to clarify this concept is by giving examples. So we are also eager to hear from you if these examples help, or if we can maybe come up with better examples. So, that is the intent of our rewrite of the policy description that's in the OSHA procedures manual.

Once we come up with a final rewrite, I think that we can expect there will be a lot of interest in OSHA doing some training within the organization so that we don't just put out a piece of paper, but that we find a way to effectively communicate the ins and outs of this policy to the folks who visit sites all around the country, so they understand exactly how the policy works.

I will be happy to entertain any questions you may have.

MR. SMITH: I don't have any questions. I have a comment under B) Creating employer, under Analysis. You said, "The employer is citeable" -- it had the authority? I would think that should be "the responsibility."

If there was something there, the guy knocked it down or damaged it in some way, he should have the responsibility to repair it, to put it back the way it was before. That would be the second sentence under Analysis, B2.

MR. DEVORA: Could you go over that example again?

MR. SMITH: Yes. Under Analysis, under B2 on the first page, it says, "The creating employer is citeable if it failed to take immediate steps to keep away all employees, including those of other employers away from the hazard and to notify the controlling contractor of the hazard," it had the authority, and I think that should be responsibility to repair the guard rails. "It is also citeable if it failed to promptly correct the hazard."

In other words, there was something there, the fellow did something to knock it down, and I don't think he had the authority, he had a responsibility. He damaged something that was already in place.

MR. CONNELL: Well, one of the things that we're getting at here, and maybe we want to use both words, is the situation where someone damages a safety measure, like a guard rail, and is not authorized to touch that guard rail.

MR. SMITH: I don't know about those situations. Boy, if it's there and you knock it down, you've got to put it back.

MR. BUCHET: We were talking earlier about an equipment operator delivering material on a scaffold, and that equipment operator, for some reason the load shifts and it busts out the guard rail.

That person is not the one who has the training, the technical knowledge, or the responsibility, nor does the contractor, possibly, to repair the guard rail. There may be somebody else on the job site whose job it is, an erector/dismantler, in that case, to put the guard rail up.

MR. SMITH: I agree. But he's got a responsibility to notify somebody right away to get it taken care of.

MR. BUCHET: I think that's captured here. But the actual repair work has to be done by somebody with the appropriate qualifications.

MR. DEVORA: Noah, this gets the committee up a little bit on the Multi-employer Workgroup. We did meet in Houston August 7. Bob was in town, and Danny was kind enough to come down. We talked a lot about what you have written here, but there were some other thoughts and comments that we'd like to add for your information that we discussed. Danny and Bob are certainly welcome to pipe in, and also Jane is on that workforce also.

See, you kind of touched on it a little bit, but I think what contractors are looking for, especially a controlling contractor -- I think they're looking for probably a little more specific guidelines when you speak of reasonable care being higher for the causing contractor, and then not as high for the controlling contractor. Those are really still kind of abstract things.

But, in fact, we're dealing with the reality of a citation and we're dealing with abstracts that different compliance officers are going to view differently, obviously. Whether or not, in their mind, reasonable care is high, low, or whatever, I wish we could get a little more specific in that.

That's one of the points that we came up with, was that basically we don't mind playing the multi-employer game, but if you'll outline the rules we'll certainly try to abide by those rules. If we do A, B, and C, we're not going to be cited under the multi-employer citation.

That gives the controlling contractor an affirmative defense in case it does come to a -- a compliance officer writes them up just because the subcontractor, the causing contractor did it.

I'm not saying that that ever happens, but in the case that it ever did, that would at least spell out what the controlling contractor needs to do to have an affirmative defense, instead of just talking in nebulous terms of, their reasonable care is high, or medium, or whatever, in terms of that. That's really the concrete kind of things that I think controlling contractors are looking for, so we can do that.

And I don't know how, and maybe working with you now we can identify those points and the controlling contractors can do that.

Another point that we talked about, was that multi-employer citations--and this is certainly open for discussion--maybe should be treated a little bit differently than a regular in terms of the procedures. For a multi-employer citation, obviously you have a causing contractor that's been cited and a controlling contractor that's been cited along with that.

However, in the rare case, but there has been some cases that I know of, where the general contractor didn't appeal, paid the fine, but then the causing contractor appealed it or whatever and it was abated, the citation was explained away, or whatever, whatever reason it was abated, you have a situation there where, in fact, there was a citation to be issued to the controlling contractor.

So I think what you're doing there, if we could perhaps treat those a little bit differently and let the causing contractor run its course, then we can determine if there's even any reason for the controlling contractor to waste OSHA's time in the appeal process and go through basically the same citation over again.

I think we get to the point that Mr. Jeffress talked about as far as directing your resources towards another direction. If the causing contractor goes first and there's no citation, why waste your time with dragging the controlling contractor through the same citation process? That was another point we talked about.

Basically, it was just sort of a fairness issue that was brought up, and we're still working on this. Now with this document and with your help, we hope we can give better attention to exactly what it is the controlling contractors need to do and exactly what it is the compliance officer is going to be looking at when he has to make these determinations of reasonable care.

MR. SMITH: I have another situation that you haven't addressed. Maybe you haven't thought about it. I know you always take the attitude that there's a prime contractor and a subcontractor, but in a lot of cases you will have an owner who has a prime contractor, but he also goes out and signs direct contracts with a number of other subcontractors so that he saves that fee, and then goes to the prime and says, you coordinate these guys. But that's all he can do. He can tell the guy, here's the time schedule and you stay on it, but if he falls out, there's nothing he can do about it.

MR. CONNELL: So, in other words, in those situations --

MR. SMITH: What you have is a prime contractor that supposedly is running the job, but in effect he may have four or five other prime contractors. They'll do it with the steel guy, maybe the plumber, maybe the electrician, because these are big numbers. The guys like Steve and Stewart, they'll have people like me because I'm only 1.5 to 2 percent of the job. I'll have a subcontract with them and everybody else is a prime.

MR. CONNELL: So, in other words, these are situations where you have several primes dealing directly with an owner.

MR. SMITH: Correct. In effect, that's exactly what happens.

MR. CONNELL: And they're dealing only with their own subs.

MR. SMITH: That's right. Absolutely.

MR. CONNELL: And in that situation, you do not have a single on-site entity that has overall site safety responsibility.

MR. SMITH: You have one in name only. He can't really tell these other guys what to do. He doesn't pay them. All he can do is give a schedule and hope they keep on it.

CHAIRMAN BURKHAMMER: Or he may have four or five equal primes that have the same contractual obligation to the owner. So, you have 5 controlling contractors, you have 5, 10, or 15 subcontractors for each of those five prime contractors. So, there's not one entity for OSHA to go to to say, tag, you're it.

MR. CONNELL: We're really dealing with two related problems, but they're two problems. The first one, is the extent to which it's fair to hold one contractor responsible for conditions that are created by another contractor, or for conditions that threaten the welfare of someone else's employees. That's the problem that we are confronting or trying to confront in this project.

There's a second problem, which is the one Mr. Smith is talking about here. That is, the extent to which we can ensure somehow that there is always going to be a single entity at a work site with overall site safety responsibility.

That is a much more difficult project for us than this because it goes to the extent to which OSHA has the authority to require that that happen, and who is OSHA going to require that of. That's not to diminish the significance of that, it's just to say that that's a harder problem even than this one.

We're certainly concerned about that problem and we're interested in reviewing all the different things that may be possible along those lines. But it is an even harder problem than this.

CHAIRMAN BURKHAMMER: Steve?

MR. CLOUTIER: Noah, we've talked about this before. We've heard this bantered around the Agency for years. But what needs to happen, is you need to change the Act and go after the owner. You all's excuse has always been, well, since the owner doesn't have the employees, we can't go after the owner.

But the owner, whoever that is, whether it's the Federal Government, the Corps of Engineers, or a developer, buys services. He buys a CM, he buys a general, he may buy five primes, he buys the subs that come with it. He has the ultimate responsibility for safety.

We continue to put our heads in the sand and play the ostrich game, and we can't find anybody. But the guy that buys the services, whether it's a shell corporation or not, is who we have to go after.

If you look at the most recent article in ENR, it talks about it again. It talks about it in the editorial page. Safety is good business, we all know that. It's right for employers, it's right for employees, and it's just good business sense.

We've got to find a way, the Agency needs to find a way, and the best way is to go back to Congress and go after the owners and make them part of the Act, and get out of this nonsense of whether or not you have an employer/employee relationship.

If not, you're going to continue to be faced with it in today's marketplace, because everybody wants to CM it out, everybody wants to push those responsibilities away, and nobody wants to take the responsibility.

Yet, those of us around the table are trying to improve the process. We all want to do it and we want to make it happen, but you've got to go back to the guy that's paying the bill. He buys the service. Then he's got to identify it in his contract documents if you, the Agency, are now holding him accountable. That's where you need to go.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: Steve, you have to be real careful with the term "owner." In my case, I have 10,000 of them a year and they're called homeowners. That means everybody sitting at this table.

MR. CLOUTIER: And I don't want to do in a residential area.

(Laughter)

MR. CLOUTIER: They're always exempt from everything.

MR. MASTERSON: Everybody in this room has got the same goal in mind, and that's to create a safe work environment and let everybody go home today that went to work, with no missing parts, no new holes, no trips past clinics.

But what I am seeing, and there is sufficient contractual control, 1A, gives me all the reason in the world to go back to my contracts and take out any reference to safety. What you're doing is just the opposite of what we should be doing.

What you're telling me here as a general contractor, I want to go back and make sure I don't reference safety with my subcontractors because that reference now makes me accountable. That's the way I'm reading Paragraph A. Am I reading that correctly?

MR. CONNELL: Yes, because that's a reflection of the state of the law right now.

But let me ask you this, hypothetically. What if that came out so that it didn't depend any more on whether you had a contract, and the only thing that mattered was whether, in fact, you exercised that control at the site. Do you have the same concerns in that scenario than based on whether you have a contractual right of control?

MR. CONNELL: That's really going to depend on how you define exercise. Going on down through here, let's see. Okay. Under, let's see, page 3C, the example. "In construction, some of the contractual rights that typically combine to result in this authority included the right to set schedules, construction sequencing, to require contract specifications be met, negotiate with trades, resolve disputes between subcontractors, and direct work or make purchasing decisions that affect safety."

Take the words "affect safety" out and you've defined the general contractor, you've defined the construction manager. By virtue of their normal tasks, scheduling when contractors should show up to work, they have become accountable. Well, they would become accountable by a combination of all these things. It's not just --

MR. MASTERSON: Well, you're saying if they mention safety in a contract and require safety standards be met, if they control scheduling, you built into this that every general contractor is going to meet all those requirements. Now the only question is, reasonable care.

Now, the question about reasonable care. Can you give me a tangible definition where I can draw a black and white line saying, as long as I come up to that line and don't cross it I'm not responsible?

If you can't do that, then there's no way a compliance officer is going to have some way to judge whether or not that contractor has shown reasonable care. You've created a scenario where two-thirds of it is already met before you even start.

If I show this to people I work for, they're going to want to go back and start rewriting contracts and back off, because that means they can no longer be held accountable. I don't think that is where anybody in this room wants to be.

MR. CONNELL: So are you suggesting that we're better off simply by saying what we've said here and, short of talking about whether they had the specific right to control safety?

MR. MASTERSON: All I'm saying is, the sufficient control guidelines that you're laying out here, the way you've laid it out, it's the nature of a general contractor to control schedules, to assign contracts, to have specifications. That does not necessarily mean they have the ability to control the day-to-day activities of an individual worker working for a subcontractor on their site.

MR. CONNELL: And that's the concept that we ought to be adding into this?

MR. MASTERSON: I think the concept is, the employer should be held accountable, and that should be the main thrust. Now, if I'm putting my contractor in a position where, in order to meet my contract specifications, he has to work on safely, then that's a different situation and I should be taken to task.

But I hire competent, knowledgeable people in their trades, like Owen, that know how to do their job, do it right, and do it safely so that I don't have to have somebody standing over them every minute of the day. On any given day I have at least 3,000 homes under construction. I only have 200 supervisors. Explain to me how those 200 supervisors are adequately going to supervise 3,000 locations and all the workforce that's involved with that.

MR. CONNELL: Well, we do want to make it clear that the general contractor does not have to replicate the safety efforts of the subcontractor. That's not their obligation. We want to make sure that we make that clear here. If we're not making that clear, then we have to improve it.

MR. MASTERSON: That's not what I'm reading here. Now, I think probably the best way to get this message across is through the use of examples. It's very difficult to come up with a single statement that will define, for everyone's complete understanding, what the standard of care is.

I mean, I think there are too many -- it's just too difficult to do. You're going to wind up with some degree of generality if you try to do that in one statement. I think the way you can communicate that, is by giving some concrete examples of what's the obligation and what isn't the obligation. If you can help us with that, we're certainly eager to get that from you.

CHAIRMAN BURKHAMMER: Felipe?

MR. DEVORA: I hear what you're saying. I guess I've thought long and hard on this from a general contractor point of view. Just by the nature of general contracting, we are responsible for everything that we've talked about here, scheduling when things happen, when the concrete's poured, when the steel goes up. Those things, we have control over.

What we don't have control over and what we are exposed to is that lack of individual accountability. I think that's where the rub is. Whether it's a subcontractor employee that's doing something that's out of line, that's what we don't have. We just don't have control over human nature.

If the guy decides to cut the metal stud without putting his safety glasses on, the ones we gave him, we think we've exercised due diligence, but the accident still occurred.

However that comes about, if it's during inspection or whatever, there's going to be some kind of accountability, not from the employee that did that, but from either the causing, the controlling, or whatever you want to call it.

Once again, I would refer back to the -- I wish it was that simple. I know it's not. But I go back to the paycheck relationship. You're talking about five primes on a job that have equal responsibility.

Well, those five primes each pay their people with a paycheck at the end of the week, or whatever, and therein lies the responsibility. Therein lies the diamond or the pearl in the oyster there. That's where it has to happen.

To move it on down the line to a controlling contractor that has a safety and health program or process that's in place, that's devoted resources to trying to make a job site as safe as he can, but the one day the compliance officer shows up on a six-month job and there's something out of line, that the general contractor just did not have control over human nature.

I think that's the rub that comes with that controlling contractor responsibility. I know a lot of very good general contractors in the United States that don't shirk from that responsibility.

They're not going to sign away the responsibility of job site safety. We're certainly not. That's what we do. We know how to do it. We're responsible contractors, and there's a lot of us out there. But we don't want the compliance officer to show up with a big stick and say, Johnny Williams over there, or whatever, didn't have his safety glasses on, so not only are we going to cite the guy that writes him the paycheck, we're going to cite the guy that writes that subcontractor the paycheck.

MR. CONNELL: And what that compliance officer ought to be asking is not simply, did this violation occur.

The compliance officer ought to be asking about, what effort is that controlling contractor making with respect to overseeing--not replicating but overseeing--the safety efforts of the subcontractor. That is our objective here. To the extent that we've come up short --

MR. DEVORA: Let's find some words and put them in there.

MR. CONNELL: Yes. We want to hear from you about that. But that is our objective, because that is the standard that has emerged from the case law.

CHAIRMAN BURKHAMMER: Felipe, maybe you and Larry could schedule a meeting, and Noah could come and we could work this out between the workgroup and Noah.

MR. DEVORA: I could meet tomorrow, unless you have to leave right away. That would be perfect, right after the meeting.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: If this group were to meet tomorrow after this meeting's finished, would you be free to attend?

MR. CONNELL: Yes.

CHAIRMAN BURKHAMMER: Great.

MR. EDGINTON: I think there's a typo in Section B2 on the first page. It says, "employees." I think that's supposed to be employers.

VOICE: The second employees.

CHAIRMAN BURKHAMMER: Yes. Employers.

MR. CONNELL: Oh, yes. Right. Thank you.

CHAIRMAN BURKHAMMER: It's things like that that you all could pick up tomorrow in the workgroup.

MR. CONNELL: Okay.

CHAIRMAN BURKHAMMER: Great. Thank you, Noah.

MR. CONNELL: My pleasure. Thank you.

CHAIRMAN BURKHAMMER: It's 4:00. We have two items left on today's agenda, both workgroup reports. I'd like to get them in before we adjourn.

So, Confined Space, Steve?

ACCSH WORKGROUP REPORTS

CONFINED SPACE
 
By Steve Cloutier and Bill Rhoten


MR. CLOUTIER: Mr. Chairman, the Confined Space Workgroup met last week. There seemed to be a problem with e-mails getting out and people being here. This workgroup has been going on since 1994-1995. We became a hot issue.

The Department of Labor asked the workgroup to get a document out. It put one out initially late summer of 1996 in Spokane, Washington. We gave a final work product to the Agency. The Agency sat on it for another year and a half.

CHAIRMAN BURKHAMMER: Do we have enough, now? Two more? Everybody have one?

MR. CLOUTIER: Joe Deere came back to the workgroup and said it was a hot item, wanted some things cleaned up. The workgroup got back together in 1997 into 1998. We met with the Agency on a couple of different occasions.

They did some spread sheet analyses. We gave them out input, they gave us general industry. They gave me their guidelines, they gave the committee the guidelines, and we reviewed those. We met again in June of this year here at the Agency, told them we wanted to get everything cleaned up and they came up with the final document that you have in front of you.

This document was distributed to myself, co-chair Bill Rhoten, George Kennedy, Marc Freedman. It was a revised OSHA draft version of Subpart C, 1926.36. The Agency came back to us and cleaned everything up, put it in working chronological order where it identified the scope and application definitions; identifying and classifying confined spaces; general requirements for alternative procedures and required confined spaces; additional requirements for alternative procedure confined space entry program; developing and implementing a written permit required confined space entry program, and it goes down the list. It's from 8-O and that's on your first page.

They produced the revised draft, and we said as committee members that we wanted to get the draft back before we made a final recommendation to the workgroup. It came back to the members of the workgroup committee, and copies should have been distributed to each member of the ACCSH committee.

We must remember that this is confined space entry in construction. It addresses the scope and application. There's a number of pages of definitions. If you go to the third page, underneath B-7 they give you an example, note to paragraph B-7.

Where they were talking in the prior sentence about a designated rescue team, they now spelled out, similar to what we would see in the appendices, it's now spelled out in part of the product. That's bold-printed as you go down the page. There's a note for Paragraph B-9, examples of emergencies. On the next page, there's other areas.

They worked through all the definitions. Then as you get further down in the document, on page 6 they talk about identifying and classifying the confined spaces, and they've done a good job there in classifying non-hazardous confined spaces, and there's additional information there. Classifying, on the next page, alternative procedures for confined spaces.

Then on page 8, they have the general requirements for the alternative procedure and permitted required confined spaces. Page 9 they talk about controlling contractors and multi-employer work sites. Page 10, they talk about non-controlling contractors at multi-employer work sites. At the bottom of page 10 they talk about general training requirements.

Page 12, at the bottom of the page they talk about developing and implementing a written permit required confined space entry program.

Page 13, they address protecting authorized entrance from hazards in the permitted confined spaces, and that's been addressed for workers.

Page 14, entry permits for required confined spaces is addressed. Sixteen talks about authorized entrance permitted required confined spaces. Standby persons, on page 18. Rescue operations, on page 20.

They address equipment that's required for permitted required confined spaces on page 22. They talk about concluding and terminating permit required confined space entry operations on page 23.

In my opinion, in talking with the workgroup members, we're ready to get this thing off dead center, take it to the committee, and make this as our final recommendation to the ACCSH to take a vote on it here today.

Mr. Chairman, you may want to wait until tomorrow, but I am prepared to make a motion that the workgroup send this as our workgroup product to the advisory committee and let the advisory committee take the vote and get it forward.

This thing's been looked at numerous times back and forth, up and down. They took all the recommendations of the workgroup over the last two years, our recommendations, and put them back into their document.

That was a concern of a number, or all of us on the workgroup, that they weren't listening. They went back, Lee Smith and his group, Noah, and they put a pretty decent document together here. I'd like to make a recommendation that we accept this as a workgroup document, and ACCSH accept it and move forward.

VOICE: Second.

CHAIRMAN BURKHAMMER: We have a motion and a second of a workgroup document. Discussion? Felipe.

MR. DEVORA: Mr. Chairman, in fairness, I'm sure it's a great document. I just haven't had the opportunity to read it. I know it's been around for a long time and maybe I could have gotten a copy of it, but I didn't. I have one now and I'd like, at least this evening, to read it and maybe move on it tomorrow, if that's acceptable.

CHAIRMAN BURKHAMMER: Duly noted. We'll vote tomorrow. You'll have this evening and tomorrow to review the document, and then we'll bring it back upon the floor tomorrow.

MR. CLOUTIER: Mr. Chairman, all we have to do is call for the question.

CHAIRMAN BURKHAMMER: Call for the question. We won't table the motion. It will be a standing motion until tomorrow.

MR. DEVORA: Thank you.

CHAIRMAN BURKHAMMER: You're welcome.

And the last one for the day will be the Sanitation Workgroup. Jane?

ACCSH WORKGROUP REPORTS

DECONTAMINATION/SANITATION
 
By Jane Williams

MS. WILLIAMS: The Sanitation Workgroup has been, on two occasions, with Mr. Cooper, Larry Edginton and myself, along with interested public participants and our staff liaison, Ellen Roznwowski, we reviewed several documents on each occasion, addressed various issues. Extensive discussions were, in fact, conducted.

The workgroup has -- we feel we have concluded as much as we possibly can at this point in time and we are in agreement that we feel it appropriate that we do recognize workplaces free from disease to the best of our abilities, and observe basic human needs for sanitation.

Therefore, Mr. Chairman, I do move that the ACCSH recommend to OSHA that revision of 29 CFR 1926.51 be placed on the Agency's regulatory agenda for rule making commencing in 1999.

We did have a meeting with Mr. Zettler at one of our meetings, and he has advised us that it would take that action for us to get it on the agenda so that we could pursue a review and revision in an appropriate timeframe.

MR. CLOUTIER: I second that motion.

CHAIRMAN BURKHAMMER: We have a motion and a second from the workgroup. Do we have any document to hand out on that, Jane?

MS. WILLIAMS: We do not have a document. We are going to meet one more time to refine all those concerns and that document will, in fact, be presented at our next meeting. We do have some report that we can provide, and Larry is prepared to give you those comments now.

CHAIRMAN BURKHAMMER: Larry?

MR. EDGINTON: Mr. Chairman, first, let me say that, as I attended the meetings with this workgroup, the first thing that struck me was that there was a general consensus that we were working on the right thing.

I think we moved rather quickly through the portions of the standard which might be in need of revision with respect to establishing a goal, as Jane described, of basic human decency, a place for people to wash their hands.

We recognize that it presents certain practical difficulties when we do that in the construction industry, considering a variety of factors.

We believe we are well on the road to resolving certain technical challenges which are presented by achieving that. As Jane said, we think we those will be overcome within one more meeting. We're awaiting some final information on that. It makes good sense to do it.

Again, to reiterate what Jane said, what causes us to come forward with the motion today is a recognition on our part, largely as a result of a presentation that we received from Noah at our last meeting with respect to laying out sort of chapter and verse the steps associated with the regulatory process, and we quickly recognized that if, in fact, this matter had not been published on OSHA's regulatory agenda, it raises serious practical questions, as well as some legal questions with respect to OSHA's ability to continue to move forward with this work on it. We think that is sort of good and compelling reason why we had brought the motion before you today.

We would not be doing that if we didn't think there were two things at play. First and foremost, that we were very close to reaching a consensus on this and having a document to hand to you at the next meeting, and secondly, a desire on the workgroup's part to ensure that it gets placed on the Agency's regulatory agenda.

CHAIRMAN BURKHAMMER: Thank you, Larry. Could you read the motion again, please?

MS. WILLIAMS: I'm passing it to you.

CHAIRMAN BURKHAMMER: I'm not sure the way the motion is currently worded, without the backup documentation, you can make this motion.

MS. WILLIAMS: We had it worded, and that is some corrective language that was provided to us by our staff liaison to serve the purpose. This is just to make it feasible for us to continue our discussions and produce the appropriate documents, as I understand it. I certainly welcome any input from Mr. Swanson or yourself.

CHAIRMAN BURKHAMMER: Let me read it so everybody follows along. "The Sanitation Workgroup has conducted two meetings attended by Steve Cooper, Larry Edginton, myself, along with interested public participants, and Ellen Roswowski, staff liaison from the Directorate of Construction.

The workgroup has reviewed several documents relating to various sanitation issues and has had extensive discussions. The workgroup is in agreement in recognizing the demand for a workplace free from disease, observing the basic human needs for sanitation and personal hygiene, the workgroup recommends that OSHA should proceed with a formal review and revision of the current requirements for sanitation.

Motion: therefore, I move that ACCSH recommend to OSHA that revision of 29 CFR 1926.51 be placed on the Agency's regulatory agenda for rule making commencing in 1999."

My question is in the second paragraph, where it says, "The workgroup recommends that OSHA should proceed with a formal review and revision of the current requirements for sanitation." I would think that the workgroup would provide that. I think that's what you all have been working on, is some comments to that.

MS. WILLIAMS: We will. It was explained to us that, for us to continue our work and provide that information to you and for you to do anything with it, that we had to request it to be on the agenda, that you would entertain our information and, therefore, proceed with your own review of that information. Otherwise, it had to wait until the following year. Again, that is our interpretation and wording by staff, so please edit as you see appropriate.

MR. CLOUTIER: Mr. Chairman, maybe it just needs to be "the review," and drop the word "revision."

MS. WILLIAMS: That's what we had originally written and we were told that, without revision, it would go nowhere. You wouldn't be able to do anything. That's why it was given to us that way, sir.

CHAIRMAN BURKHAMMER: All right. The Chair accepts the motion. We have a second. Discussion? Larry? Michael?

MR. BUCHET: Would you clarify what the motion is?

CHAIRMAN BURKHAMMER: The motion is that ACCSH recommend to OSHA that revision of 29 CFR 1926.51 be placed on the Agency's regulatory agenda for rule making commencing in 1999.

So what they're asking, is that the revisions to that be placed on the agenda, and then the committee will make recommendations, so that's fine. That's why I accepted the recommendation.

Any further discussion? Steve.

MR. CLOUTIER: I'll call for the question.

CHAIRMAN BURKHAMMER: Call for the question. All in favor of the motion from the Sanitation Workgroup, signify by saying aye.

(Chorus of ayes)

CHAIRMAN BURKHAMMER: Opposed?

(No response)

CHAIRMAN BURKHAMMER: So moved.

MS. WILLIAMS: Mr. Chairman, one comment. We are going to meet tomorrow at 1:30, a very brief meeting to receive the additional data we're waiting for. That meeting will be in Room N-3437B at 1:30. Again, it will be a brief meeting.

CHAIRMAN BURKHAMMER: Okay. Thank you.

Any other discussion from the committee?

(No response)

CHAIRMAN BURKHAMMER: Any public comment or anybody in the room that would like to share some thoughts or words with the committee?

(No response)

CHAIRMAN BURKHAMMER: No. Meeting adjourned until tomorrow morning.

(Whereupon, at 4:20 p.m., the meeting was recessed, to reconvene at 9:00 a.m. on October 8, 1998.)

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting of the Advisory Committee on Construction Safety and Health, Occupational Safety and Health Administration, U.S. Department of Labor, held on October 7, 1998, were transcribed as herein appears, and this is the original of transcript thereof.

SONIA GONZALES
Court Reporter