U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
VOLUME I
August 8, 1995
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room C-5320, Seminar Room B
Washington, D.C. 20210
Members Present:
Employee Representative
William C.
Rhoten
United
Associate of Journeymen
and
Apprentices of the Plumbers
Pipe Fitting
Industry
901
Massachusetts Avenue, N.W.
Washington D.C. 20001
Dr. Knut Ringen,
Chairman
Director,
Center to Protect Workers Program
111
Massachusetts Avenue, N.W.
Washington,
D.C. 20001
William J.
Smith
Director,
Safety and Health
International
Union Operating Engineers
1125 17th
Street, N.W.
Washington,
D.C. 20036
Stewart C.
Burkhammer
Vice President
& Manager of Safety Services
Bechtel
801
Washingtonian Boulevard
Gaithersburg,
Maryland 20676
Kathryn G.
Thompson
Kathryn
Thompson Development Company
95 Argonaut
Suite 200
Aliso Viejo,
California 92656
State
Representative
Allen Meier
Commissioner of
Labor
State of Iowa
100 East Grand
Des Moines, Iowa 50319
John Pompeii,
Administrator
Oregon
Occupational Safety and Health Division
Department of
Consumer & Business Services
Room 430
Labor &
Industries Building
350 Winter
Street, N.E.
Salem, Oregon 97310
Ana Maria Osorio
Chief, Division
of Environmental & Occupational
Disease Control
California
Department of Social Services
5801 Christie
Avenue Suite 600
Emervyville,
California 94608
AGENDA
PAGE
Welcome and Introductions - Dr. Ringen, Chairman
5
Safety Standards
Industrial Trucks
10
Commercial Driving
22
Scaffolds
23
Electrical Safety
26
SENRAC
27
Subpart M Update
35
Policy Legislation - Celeste Monforton
45
Committee Discussion on Draft Proposed Protective Standard for Musculoskeletal
Disorders in Construction
63
Public Comments on Draft Proposed Protective Standard for Musculoskeletal
Disorders in Construction
PANEL ONE:
Claudia Harris
87
Peter Chaney
101
David DeLorenzo
115
Tom Soles
118
PANEL TWO:
Mr. Kennedy
132
Charles Maresca
155
Regina Solomon
164
Mark Freedman
199
P R O C E E D I N G S
[9:05 A.M.]
DR. RINGEN: Good morning and welcome.
This Committee normally has 15 members. Two members have resigned so it
consists of 13 members, with 7 members here present. Currently, we have a
quorum, and we're ready to start.
I'd like to start by asking those who are here from the public to, first of
all, make sure that you sign in and to, secondly, please identify yourselves. We
can start with you, with the striped shirt.
[Audience introductions - inaudible]
DR. RINGEN: Thank you very much.
Bruce Swanson is not here today. He will be here tomorrow. Tony Brown is
sitting in for him from the Office of Construction and Engineering.
The first point of business is to approve the Minutes from the May 25 and 26
meeting. Do any of you have any comments on those Minutes?
[No response.]
DR. RINGEN: Do we have a motion to approve them?
MR. BURKHAMMER: So moved.
DR. RINGEN: All in favor.
[Chorus of ayes.]
DR. RINGEN: Opposed?
[No response.]
DR. RINGEN: Thank you. The Minutes are approved.
The way we're going to proceed today is that this morning we will have a
number of reports from OSHA, mainly dealing with the safety standards. We will
take a break sometime during the morning at a suitable moment, and we will also
have a presentation on policy and legislation.
At the end of the safety standards presentations, we will have the
opportunity for those who are from the public to make comments if they wish. If
you want to do this, please inform us in writing in advance.
In the afternoon, we have a special session on musculoskeletal disorders. As
all of you know, we have had a work group focused on the development of a
protective -- or a proposal for a protective standard in this area.
Stu Burkhammer is chairman of that work group and will give an overview of
the standard and in particular the changes that they've made since the last
meeting. He will do that the first thing right after lunch, and our panel will
have an opportunity to question Stu and make comments about that, at that point
in time.
After Stu's presentations, we will invite public comments on the proposed
draft which has been made available to all of you.
At this point in time, we have the following who have requested to make
comments on this:
David DeLorenzo from the Sheet Metal and Air Conditioning Contractors
Association;
Claudia Harris from the National Association of Plumbing, Heating, Cooling
Contractors;
Pete Chaney from the Associated General Contractors;
George Kennedy from the National Utility Contractors;
Charles Maresca from the Associated Building Contractors; and,
Regina Solomon from the National Association of Home Builders.
If there are others who want to make comments on this, we would like to know
about it this morning so that we can schedule the afternoon.
Also, for those who want to make comments on this standard, I am going to
make some initial comments before the presentations are made about some
procedural issues that have been raised with regard to how we have handled this.
We are not looking today for comments on our procedures, we are looking for
comments on the substance of the proposed document, and we would like those of
you who are making comments to focus on that.
We will give each of you 15 minutes to make your presentations.
We will start out and we will do it in two panels. The first panel will
consist of DeLorenzo, Harris, and Chaney. You will each make 15-minute
presentations, and we'll have comments and questions for you after that.
Then we will have a second panel consisting of Kennedy, Maresca, and Solomon.
That means that this is going to take us about 2 hours, probably, maybe a little
bit more than that to get through, but we will be very careful about maintaining
timely presentations.
That's why I urge you to stick to the main issues.
Are there any comments about this proposal for our procedures today?
[No response.]
The final thing is that we will not make any decisions about this document
today. Stu Burkhammer, as the chairman of the working group, will stew about the
comments tonight, and he will come back here in the morning with some
recommendations, or at least a discussion, or questions about how we should
proceed as a result of the comments that we receive from all of you.
Our objective is to create as good a document as we possibly can, and we will
certainly take into account the comments that are made.
Yes.
MR. BURKHAMMER: Those of you from the public who are going to make comments,
if you have a copy of the comments or an outline of your comments you would like
to share with me, I would appreciate it. I don't take notes very well. If you do
have something solid to give me after your presentation, I would appreciate it.
Thank you.
DR. RINGEN: Any other comments?
[No response.]
DR. RINGEN: With that, we can get started with the Safety Standards
Presentations: Tom Seymour, Gerry Reidy, and Barbara Bielaski.
We'll start with Industrial Trucks, I guess.
SAFETY STANDARDS
INDUSTRIAL TRUCKS
MR. SEYMOUR: My name is Tom Seymour. I'm the acting director for safety
standards program for OSHA. On my right is Gerry Reidy, who is the director for
the office of construction, civil engineering standards, and safety standards
director; and Barbara Bielaski is the special assistant to the acting director
for safety standards program.
Today I'm going to share with you some information about industrial trucks.
We have had a request from the maritime industry.
As you may remember, the industrial truck proposal was published as it
pertains to the maritime industry, and we have had now some hearing requests
from the maritime industry, we will be publishing a hearing notice to honor that
request.
At the same time, we are going to publish your documents that you've given us
as part of that notice to begin the process as far as construction standards
coverage for industrial trucks.
I know that in your May meeting you had quite a discussion about
certification. I'd like to share with you some of the things that have happened
in certification and paperwork reduction.
Mr. Smith talked about the desire of the Committee, and it's also OSHA's
desire to minimize paperwork burdens on employers. I'd like to share with you,
for the benefit of the Committee, some of the initiatives that have been taken
now by the Office of Management and Budget and what the impact is of the
Paperwork Reduction Act on our agency and looking to you all for advice and
guidance as we receive other rulemakings, such as SENRAC and so on, and how
paperwork may have an impact on that.
The OMB people have published a Proposed Rule to implement their rules and
regulations for the Paperwork Reduction Act. This was published June 8th. It's a
public document. If people want to take a look at that, they can do that.
One of the things that came out of the dialogue on the Hill was to overturn
the Supreme Court decision about dialogue between the employer and his
employees, and the intent of the Congress was to now include that kind of
dialogue between the employer and employees, considered burden hours.
If there's any kind of paper information that's going to flow between the
employer and his employees or he has some kind of preparation of papers he has
to do to train them, as an example, then that's now going to be considered
burden hours.
Also, as part of the OMB proposed rule, to implement the Paperwork Reduction
Act, we could use the term certification, which you all spent some time talking
about in your Committee deliberations in May. The OMB Proposed Rule now is to
overturn certification as being a means, not to include that as paperwork
burden.
I wanted you all to be aware of that because as we go down the road with
rulemakings in the future, certifications may not be a vehicle to use to
minimize burden hours. The sense that I have and what's going to happen with the
implementation of the Paperwork Reduction Act is that there will be a burden
budget.
Each agency has already submitted their reports and documents to give the
Office of Management and Budget a sense of what burdens they believe we already
have in existing rules.
Those were due to the Office of Management and Budget July 1, and they are
now reviewing those. We'll have some kind of feedback from them after the new
fiscal year starts, but there will be a burden budget given to the agency, and
then, as you may remember, the statute requires it'll be a 10 percent reduction
from that burden budget.
As we add new rules and we may add new burdens, we're going to have to then
subtract that out as well as the 10 percent reduction.
There will be a 10 percent reduction for the first two years under this
legislation, and then there will be 5 percent reductions thereafter for several
years.
If there's any questions about that, I'd like to maybe respond to those. I
wanted you all to be aware of that and some of the discussions that you had on
the industrial trucks, certainly needs to be kept in mind as we go down the
road, because this is going to be an important facet of the OSHA rulemaking
activities as to what happens with burden hours and what kind of paperwork is
necessary, really essential, and what kind of paperwork is not so essential.
Those will certainly be questions that we are going to put into our notice of
proposed rulemaking for applying it to construction, as well as we'll have some
more dialogue about that in the public hearing with the maritime industry.
Do you want to say anything about that?
MR. SMITH: Just to, I guess to put some of this in layman's terms, and forget
about 5 percent, 10 percent, and all those numbers --
DR. RINGEN: That's Bill Smith. You've got to speak into a microphone.
MR. SMITH: What you said in the beginning was that the dialogue between
employer and employee was going to try to be reduced in the sense of
communication through paperwork. That's the original part, was that they were
going to try to reduce the paperwork process between employer and employee.
Then I think my understanding was that you also said that certification in
itself may not necessarily be considered a burden under this OMB directive?
MR. SEYMOUR: No. OMB, right now, in the past, when we needed a certification,
similar to what you all put in your recommendations to us, we didn't have to
count those as burdens.
But now, OMB is proposing in this June 8th proposal to make those now burden
hours. So where we may have hidden dialogue, say the employer is going to assure
that somebody has been trained in the case of an industrial truck operator and
he's going to do his own training, so he may spend some time and effort to
develop a training program that he's going to use for the trucks that he has on
his construction site, that time he spends in developing the training course,
and then he delivers it, and he keeps a note with the person's name, when he was
trained, whether he passed or failed, the date of that and so on.
Those kind of items as a record, if you will, if it had 4 items or less of
information, then it wasn't going to be considered a burden under the old
criteria.
Under the new criteria, if it goes into effect, would be considered burden.
So where we used to be able to hide something as far as reducing the number
or at least not have to count it, we would now have to count it if that goes
forward the say OMB has proposed it.
The Congress, in its intent in revising and implementing the new Paperwork
Reduction Act, was to overturn the Supreme Court decision where, if it was
dialogue -- say the employer is going to do training. He develops a training
program.
He has already checked off that they attended the course, or he does other
kinds of things, but we don't require any kind of written record of any sort,
they want to make sure that that wasn't going to be considered out from under
the Paperwork Reduction Act.
So now where OSHA says to an employer, you've got to have some kind of
communication or dialogue with, say, the local fire chief on some kind of
emergency preparedness activity, share information with him and so on; that may
no longer be out from under. It's going to have to be counted.
MR. SMITH: The hard part about all of this, and I know we all have to live
with what's dealt to us, and these are all proposals out there, just like
eliminating OSHA altogether is a proposal to some extent.
But what we're trying to do, or what we try to do with the test group and
this committee for the construction side was try and aid in that in the sense of
eliminating as much of the unnecessarily burden to the employer, specifically in
construction, because it's a very transient workforce.
So we tried to basically say, unlike general industry, if an employee comes
to an employer through whatever means, through the paper, through an ad, through
a friend, through a union hall, if he comes with a certification card in his
pocket that someone else, a third party, has already trained him for industrial
trucks, the employer should have to do very minimal amount of paperwork, which
is just simply take a copy of it and note where he was trained at, and that's
all the burden that that employer would have to do.
However, if the employer himself wanted to train his own people, he could
very well do so. That's the way we try to write up for the construction
industry.
The sad part is that what you're saying is that there's a possibility that
may even be too burdensome in itself, and that's scary to the extent that that's
the minimal amount that OSHA can go into check for, as well as the employer
should be looking for from somebody coming in the door, and it's hard to believe
that we're going to go that far.
I'll tell you the bottom line is, if we go that far we might as well not do
anything, because what you're basically saying is, the government or OMB or
somebody is going to be out there saying to the employer is, basically, look,
eliminate all the paperwork; you keep records of basically nothing, and when
OSHA comes in, it'll just be catch as catch can if they even come in the door.
I think what we have to do, though, is not think about what they're saying in
a proposal, but the proposal we gave from this Committee for the construction
industry alone is, from the employer's as well as the employee's side, is a
realistic approach to certifying an industrial truck operator, and I think we
should definitely go forward with that proposal, regardless of what OMB does,
and then if it passes that way, we'll have to live with it, and we'll have to
adjust.
MR. SEYMOUR: Right. I just want to compliment you that you are doing the
right kind of things, considering the paperwork burden, and all I'm encouraging
you to continue doing that as we bring proposals to you, because it's going to
be an essential item that's going to have even more bearing as we go forward.
Once we know what our burden budget is going to be and as we add new rules
and for subject matters maybe we don't presently address, and so it's not going
to be a matter of adjusting what we already have, then we are going to have to
take that into consideration, because that's going to tend to increase the
burden.
At the same time, we actually have to have a net reduction that's been
prescribed by statute, so I just wanted to talk about that.
MS. BIELASKI: The only thing I might add is that OMB took comments on their
Proposed Rule through yesterday. I'm sure, like us, they accept late comments.
What we had recommended is that certification activity be exempt from review
by OMB under the Paperwork Reduction Act.
MR. SEYMOUR: But they'll make the decision as to what they're going to do
regarding their implementation of rules. Of course, the Department was also
submitting comments.
MR. SMITH: I'll tell you -- just one more second -- is that employers out
there, especially on construction, because that's really why we're here, what
employers are leaning more to the fact of, when I hire an employee, I want to
understand what his experience is, and through some method of certification is
the best avenue to do so, other than bringing a whole binder in with the
employee as his work history.
Even at that, it's still a little open door, just like your 1910.120, HAZMAT
training.
MR. SEYMOUR: Right.
MR. SMITH: Everybody out there can train people and certify them on their 120
for 40 hours of HAZMAT, but there's no accreditation. That's one of the issues
of this Committee. There's no accreditation of the individual who's doing the
training.
MR. SEYMOUR: Right.
MR. SMITH: So it can be whatever it wants to be, as long as the guy's got a
piece of paper, and that's a sad state that we're in, but that's the state we're
in, and we're going to live with it for right now.
But it seems -- and we will definitely do another comment or at least put in
another late comment if they'll accept it -- for the fact that some method of
certification should be exempt, because if nothing else the employer should at
least look for Bill Smith saying, he's got certified, and JP's in the back,
we're working with him on cranes.
You know, he's certifying to the fact that he can run the crane. He's
certified in industrial truck. He's certified under HAZMAT. Whatever the need is
from OSHA, that at least the guy comes in with some credentials saying he's had
some minimal level of training.
To me, the employer should love that, not fight against it or argue about it
in that case, especially if somebody else does it for him.
MR. SEYMOUR: We're not advocating not having some paperwork requirements.
The idea is, as you do your deliberations, then you only need to be the ones
that are essential, and we have maybe some that are on the books right now that
we'll probably be getting rid of to help meeting the reduction that will not be
considered essential, and if that's going to impact construction, we're going to
bring those back to you all, to help have a dialogue about what you all would
believe is essential and not essential.
DR. RINGEN: Congress probably did not take into account the special needs of
the construction industry.
MR. SEYMOUR: Maybe other industry as well, but they did their deliberations,
but we have a law now so we're going to have to live with the law.
DR. RINGEN: If we could take just one minute, I had a request. We've had a
number of additional people who have come into the room since we had the public
participants here identify themselves.
Those who have come in since we had the first announcement, could you please
identify yourselves.
[Audience Introductions - Inaudible]
DR. RINGEN: Again, if any of you have an interest in making comments on the
musculoskeletal disorders proposal that we're going to discuss this afternoon,
please let us know this morning.
Thank you.
MR. SEYMOUR: I'd like to move onto the commercial diving standard, which is
in the construction standards in subpart Y.
COMMERCIAL DRIVING
We have given you another document that we would like, as you have time, to
look at.
We are not prepared to come forward with the proposed rule, but we these are
some of the issues that we think it would be useful for you all to at least look
at, maybe over the next six months or so, to formulate some thoughts about
those.
If you have some interaction with any kind of diving activity in your regular
work activities, then it probably would be beneficial that you might share those
back with the committee and so on as we look at this whole issue.
Holly has facts to you already, and I just want to make you aware that we are
interested in the subject matter and looking forward to some further dialogue
down the road when we have a proposal that we'll be coming back to you with.
DR. RINGEN: When do you think you will have that proposal?
MR. SEYMOUR: Well, it will be sometime after the new calendar year begins.
DR. RINGEN: So in the spring probably -- late winter, spring of next year?
MR. SEYMOUR: Yes, sir. There's no need to have a working group at this point
in time. I just wanted to further share some information as we're gathering
information about that.
We've had a stakeholder meeting last October, and in that meeting, there was
a representative from the diving industry that came in and asked us to really
revise the standard.
At that time, they advocated that the standard be located in one location.
They would prefer it to be general industry standards, but that, of course, will
be a dialogue that we'll share with you all as well, as we go down the road.
DR. RINGEN: I can ask if anybody has looked at it and has any preliminary
comments.
[No response.]
MR. SEYMOUR: I'd like to go on, then, to Gerry.
MR. REIDY: Good morning.
SCAFFOLDS
MR. REIDY: Subpart L, Scaffolds. The current draft of the final rule had been
undergoing review since March. As of this time, we've been inform that the
project attorney, Mr. Steven Jones, has completed his review and turned his
comments over to George Henchell, his supervisor.
We've been informed that, as of this point, about 100 pages have been
reviewed by George Henchell, of the approximate 600-page document.
The document has also been subject of the review by a focus group, consisting
of representatives of both labor and management to ensure the regulatory texts
are written in plain English.
I'd like to emphasize the fact that this review was merely on verbiage,
nothing to do with the substance of the standard.
The project officer is working with the carpenter's union and the laborer's
union to get information for a non-mandatory appendices covering the training of
employees, erecting and dismantling scaffold, and on the feasibility of
providing safe access and fall protection with scaffold erectors and
dismantlers.
The project officer, by the way, is Ted Trudowski.
He is also working with the office regulatory analysis to review regulatory
impact analysis to reflect a more detailed cost analysis that will be required
in the future.
The completion date of this project will depend upon the extent of the
comments received during the various reviews and the amount of revisions to the
Preamble that may be necessary due to those comments.
Are there any questions?
MR. SEYMOUR: Let me just add that, as part of the Presidential initiative
that we have embarked on that we submitted to the President back in June 1, this
whole effort to try to put the OSHA requirements into more understandable
language, which Jerry calls plain English, and you'll hear that term being used
at least inside OSHA quite a lot, our intent to try to do that was to get people
who were going to have to comply with the rule directly, in this case, probably
competent person type people who are going to be involved using scaffolds, were
the kind of people you were trying to draw in to read it and give us some
suggestions.
We've got some very useful suggestions. Some of them talked about putting
some of the information into a tabular form as opposed to the written narrative,
and we're going to try to do some of those things. It was a helpful discussion
that we had.
So we'll be doing this as a regular routine for our rules as we go forward --
proposals and possibly finals, as well as we're doing in this case.
We can go on, then, to Electrical Safety.
ELECTRICAL SAFETY
MR. SEYMOUR: I know you all have a work group on that, and we're continuing
our efforts. Of course, the present Subpart V is over 20 years old, and so we
definitely need to do a revision to bring it more in line with some of the
criteria that we have put into place into the general industry standards in 269.
That standard is in litigation by a group that has filed a suit against our
correction notice that we issued for the standard, and so the correction notice
is the one that is in litigation, not the main standard itself.
The IBEW has filed an amicus brief in support of the agency's brief, and it
is in the hands of the court now.
The judges have all the documents and are making the decisions. We'll
hopefully hear sometime in the fall about that.
We're waiting and looking forward to some recommendations from you all when
you get ready to do that.
DR. RINGEN: If you have any comments right now, you'll be reporting on this
work group tomorrow.
MS. BIELASKI: We had a work group meeting two weeks ago.
MR. SEYMOUR: We can go to SENRAC now.
SENRAC
MR. REIDY: The last meeting of SENRAC in June of this year -- June 27-29th --
ended without reaching a final consensus on the total Proposed Rule, mainly
because there was no consensus reached on fall protection.
The fall protection work group met on Wednesday, July 26 in Philadelphia. I
have handed out to all of the Committee a copy, which I am going to read from
now for the record. If you haven't got a copy, let me know.
The members of the work group agreed that each of them would take the
following outline of a package agreement back to their individual constituencies
before proceeding further.
The agreement of the work group was as to the whole so that no individual
part could be changed without vitiating the entire packet.
Moreover, the members of the work group did not purport to bind the
organizations and interests they represent, but rather they agreed to submit the
outlines to those organizations for approval.
Finally and critically, this outline of a fall protection section of a
standard, is the integral part of the large steel erection standard developed by
SENRAC, and it must not be viewed in anyway as freestanding.
The package is as follows:
Connectors in an erection zone, working up to 30 feet need not be tied off or
otherwise have fall protection. They must, however, have the ability to tie off
should they want to and, hence, must wear some sort of personal fall arrest
equipment, the precise nature of which need to be defined.
There's a need to define the scope of the duty of the connector that
qualified for this provision.
We will also liberalize man-basket restrictions to enable their use.
Connections may move point to point without fall protection being in place
while in the connection zone. Decking operations between 15 and 30 feet need not
have fall protection. They must, however, establish a control decking as
described in June 26 fall protection draft standard, but without the decking
monitor described.
A 15-foot height applies everywhere other than the leading edge, and applies
to point-to-point activity in the zone. Fall protection must be provided for
everyone else when the risk is greater than 15 feet. This also includes
point-to-point, other than described above.
The work group also agreed to collect data and revisit the standard 5 years
after the effective date to see how well it is working and whether it needs
revision.
Based upon this work group's product, an additional meeting of SENRAC will be
held September 19, 20, and 21 in Seminar Room 4, on this floor, in the DOE
building. The meeting will discuss three items:
(1) The scope of the Subpart 4;
(2) Development of the training which was discussed before; and,
(3) Fall protection.
That is the current status of the SENRAC group.
Are there any comments or questions?
MR. SEYMOUR: I was just going to say, further, that they will be hopefully
concluding their work and issuing a report to Joe Dear, and our intention would
be to bring that as promptly as possible to you all for your consideration.
They have also deliberated about paperwork requirements and so on, so you'll
see that as part of the package. They have worked long and hard since this
previous past June -- a year ago past June.
We're hoping there will be a conclusion, as Joe Dear would call it, for this negotiating rule making Committee effort,
and whatever meeting you're going to have after the early part of October, would
be probably the next time we would be able to bring the package to you all for
your consideration.
DR. RINGEN: Bill, do you have any comments?
MR. SMITH: No. Just to echo what Tom says, as a member of that Committee, we
were there, I guess because there were a lot of issues that dealt also with not
only the iron worker and some of the other trades but with the cranes, in
general, and connecting; but that Committee did, like Tom said, work very, very
hard.
It was somewhat emotional, in some sense, of trying to come to a number.
There was definitely a negotiations being done between both sides because they
were from zero elevation all the way up to 30, 40 feet in distance, as far as
being that far apart, but there was some give and take.
Like it says, this is not free standing. There's a lot of things that need to
be done along with these numbers here, to make it safe as they can.
In that sense, I'm still trying to connect unsecured iron, which is where the
argument started with, and the fact that the numbers of falls that were iron
workers, the majority of them weren't connectors in that area.
And that's why there was such a harsh argument about the connectors being
able to move around like they do, because when they get to the job, there's
nothing in the air but the sky, and they're going to start putting up iron, and
it's unsecured and everything.
So there was a major, major concern about the fact that they would tie off to
something that may fall down.
I guess as Eric knows here, too, a lot of the manufacturers, the fabricators,
all of the people were involved in it, and the buildings, I figure, are going to
be more stable, at this point, if this is followed.
So as that 5-year time frame goes by, you may see that collapses, which were
a major part of the problem, may not be occurring, and it may revisit the fact
of the height element at that point, and I think it's a good deal.
DR. RINGEN: So, do you expect that the outline presented here will
essentially be the sort of concepts or criteria that the full committee agrees
to?
MR. SMITH: That's the million dollar question.
DR. RINGEN: Okay.
MR. SMITH: I think the subgroup committee that was put together to come up
with this were the major opponents as far as the distance between the two, and
if they basically agreed in negotiations to come up with this number, I think
the rest of the committee will probably, or hopefully, follow through, because
the major players of this agreement were the subcommittee that met to form this.
DR. RINGEN: Is the next meeting definitely the last meeting?
MR. SEYMOUR: I believe so, yes, sir. We were hoping the June meeting was
going to be the last meeting, and they really put in a lot of effort.
Caucuses were formed for proponents of different points of view, and they
were not quite able to come to conclusion, and so the work group was formed with
both groups proponents being part of the work group, and so this is now what's
come from that work group.
We're hoping, as Bill says, that the main committee will buy into it.
Joe Dear is looking, really, for this group to conclude its work in a
consensus fashion if at all possible. That's what we're hoping is going to
happen, and we're desirable that that's going to happen. We're looking forward
to that kind of dialogue and camaraderie being maintained when they come together
in September.
DR. RINGEN: The death rate for falls among structural steel erectors, based
on our most recent data, and we've worked a lot trying to get good denominators,
is about 150 per 150,000.
It's hard to find a death rate in any part of public health in the U.S.
that's higher than that. I don't think we're going to find it any other place.
MR. SEYMOUR: Logging has a similar death rate.
DR. RINGEN: Not as high as that.
MR. SEYMOUR: Logging is like 136 or so, yes.
I have some other subject matters that are related to SENRAC, in the case of
Subpart M. I'd like to talk a little bit about that, if I may.
DR. RINGEN: Before we finish on this, if possible -- I don't know if it's
realistic or not -- but if the SENRAC is completed before our next meeting, and
you bring this recommendation that they've come up with to this Committee, maybe
at that time, maybe we could have a couple of participants from each side in the
negotiations also join us to have a discussion about the procedure as well and
how they thought this has worked.
MR. SEYMOUR: We could bring that to the Committee when they meet in
September, and they could, at that point in time, designate some representatives
who would then help make the presentation to your Committee.
DR. RINGEN: That would be great. I think that would be useful.
MR. SEYMOUR: As a corollary to the SENRAC discussions, obviously the scope is
going to be an issue, and the scope of Subpart M has been impacted by the SENRAC
deliberations.
Ms. Bielaski will give you a little orientation about what we've passed out
and what's happening with them.
SUBPART M UPDATE
MS. BIELASKI: Good morning. There are a few things that we want to talk about
this morning that relate to Subpart M to kind of bring you up to date on what's
happening with Subpart M.
The first would be the Federal Register notice that was issued last week and
passed out to you a few minutes ago, and the memorandum from Jim Stanley to the
field setting the enforcement policy.
The second item we want to share with you, some of the problems and concerns
that have been raised to the agency since Subpart M went into effect.
Last, we want to inform you of some of the potential revisions to Subpart M.
Going back to the Federal Register notice of August 2nd, 1995, essentially,
that notice corrects or amends Subpart M, to state that nothing in Subpart M,
not the duty to have fall protection, not the systems and criteria for fall
protection systems, nor the training provisions of Subpart M, apply with regard
to any steel erection activity.
This amends the scope statement that was in the August 9 register. Going back
to the August 9, 1994 rule, we said that Subpart R covered steel erection of
buildings, now we're saying that steel erection activities are covered by both
Subpart R and by the old rules and 104 -- 196.104, 105, and the definitions from
107 remain in effect.
So between those four sections, they'll set the requirements for fall
protection for steel erection activities.
MR. SMITH: For the present.
MS. BIELASKI: Now, what needs to be discussed is what is the definition of
steel erection activities.
Subpart R only addresses buildings, so this
Jim Stanley memo attempts to define steel erection activities. When SENRAC
meets, it will further define the scope of Subpart R, and that definition could
change.
Essentially, these documents say that no fall protection is required when
engaged in a steel erection activity until a height of 25 feet has been reached.
Are there any questions on that?
[No response.]
The second area that I wanted to share some information on is problems that
we've seen with regard to enforcing Subpart M.
We estimate there are about 20,000 roofing contractors in this country that
are subject to Subpart M, and I've heard from all but five of them, so we're
aware that they have some problems out there.
We've also heard from a number of home builders. Matter of fact, we've gotten
more comments on Subpart M since January then we got during the whole 8 years
the rule was under development.
Again, the two groups most affected by the Final Rule are residential
contractors and roofing contractors, particularly roofing contractors that are
engaged in residential reroofing operations.
This morning, I want to give you the enforcement memo that Mr. Stanley has
issued on fall protection plans, and hand it to you earlier, because it looks
very much like the one you got on the steel erection.
(Distributing handout.)
Many home builders and residential roofers are just now becoming aware that
since 1971 OSHA has considered them to be a part of the construction industry.
Now, we were aware of that when we went to the final rule. We knew that there
would be some problems with residential contractors in terms of their ability to
use conventional fall protection systems.
It was for that reason, based on that knowledge, that we included in the
residential construction provision the language that employers who could
demonstrate infeasibility or greater hazard with regard to using conventional
systems, could develop and implement a fall protection plan.
The plan essentially would allow employers to explain why they couldn't use
conventional systems, to state what systems they would use instead, or what
other alternative procedures they would use instead, and they would implement
their own plan.
The policy statement amendment that you just got goes on to say that the
Appendix, the sample fall protection fall in the Appendix for residential
construction, outlines the areas that we believe that there will be problems or
could be problems, and it explains the reasons, and it provides at least one
alternative method of compliance.
We have tried to spread the word on this to residential contractors and to
those involved in residential construction activities, that they can use the
plan.
We, a couple of weeks go, went to Chicago to meet with Residential
Construction Employer's Council to explain to their members how to use the
sample plan for all phases of construction activities.
We also are working with the National Roofing Contractors Association. They
have brought to our attention that there have actually been some employers who
are now beginning to experience accidents that they didn't have before since
they've been using the fall protection equipment.
They have asked us to review a draft fall protection plan for roofing
operations, and we're doing that now.
MR. SEYMOUR: As it pertains to residential construction.
MS. BIELASKI: I'll just give you a little bit of information about their
recommendation so that you'll have an idea of what they're suggesting to us.
They're suggesting that the use of slide guards -- they're 2x4 boards, there are 2x6 boards -- being used in lieu of
conventional fall protection.
At the slide guard, you would place one at the eave of the roof for roofs
with a pitch about 412 and up to 612. As you get a little steeper, up to 812,
you would put additional slide guards no more than every or no less than every 8
feet.
Once the roof slope was greater than 812 pitch or slope, conventional fall
protection systems would be used.
The plan also outlines procedures to use only workers that have been trained
in roofing operations, that have been trained in the recognition of fall
hazards.
The plan specifies the pre-job inspection to evaluate each job site for
fall-related hazards, to limit access to the roof.
The roof would actually become the controlled access zone. Only workers that
need to be on the roof would be allowed on the roof.
Measures would be taken to protect employers at the perimeter for materials
fallen off the roof and on to them.
That Assistant Secretary has stated in hearings that we may publish this fall
protection plan as another non-mandatory appendix in Appendix E to the Final
Rule.
I think that's all on that, unless there's some questions.
DR. RINGEN: Any questions?
MR. SEYMOUR: I would just like to say that we spent some time and effort
working with the industry people -- Mike O'Brien, Regina Solomon -- from the
Home Builders when we were doing the plan there, and we've been doing the same
thing with the roofing contractors.
DR. RINGEN: Jack.
MR. POMPEII: I would just like to go on record and say that, in Oregon, we've
been doing this exact thing on pitches with toeboards, and it's a huge success
for the roofers in our state.
We've been doing it for approximately a year. It's a fantastic thing. It's a
common sense approach.
DR. RINGEN: Okay.
MR. SEYMOUR: It's showing good results?
MR. POMPEII: Yes. I just read an article in Oregonian last week that,
nationally, the fatality rate totally went up 4 percent in the country.
Occupational; in Oregon, it went down 14 percent, so that's a swing of 18
percent fatality. This construction is down quite a bit.
DR. RINGEN: All right.
MS. BIELASKI: The last item with regard to Subpart M has to do with plans for
revision of Subpart M.
First, as has already been stated, after SENRAC completes its work to revise
Subpart R and determines the scope of Subpart R, we will have to amend Subpart M
to pick up any steel erection activities that are not covered in the future
Subpart R.
In addition, the House has recently passed an appropriations bill for the
Labor Department, and there are some riders in that bill that affects subpart M.
One is that OSHA would be forbidden to expand any funds to enforce the 6-foot
rule.
We are directed to start new rulemaking to revise Subpart M, and we would
have 180 days to do a new rule.
In the meantime, all height requirements are adjusted to 16 feet, and that's
what we would enforce under the House approved version. That does have to go to
the Senate now and, of course, be signed.
The reason we're bringing this up today is to alert you that if we only have
180 days to come up with the new rule, we're going to have to move quickly. And
we may not be able to bring forth a proposed rule to the Committee if there
isn't a committee meeting scheduled within the time frame.
So perhaps if there are comments on Subpart M, if there are things that need
to be corrected, revisions, suggestions, anything that you want to give us in
the way of comment, as soon as we could get them, it would help us in the event
that this should happen.
As the project officer, I guess I have special attention I give to Subpart M,
and I want to say that this rule, of course, the rider overturns rules that were
put in effect in 1971 with regard to fall protection.
Under the Construction Safety Act, the Department of Labor, under the Bureau
of Labor Standards, promulgated that 6-foot rule, that remained in effect until
'94.
The revision in '94 really only affected the roofing contractors. It was only
the roofing provision that used to be 16 feet. Everything else was either at 6,
4, or 0. So everything now would automatically move to 16 under this rider.
MR. SEYMOUR: I just want to say that if the appropriation rider stays and we
have to then act on that, we would be publishing an interim rule very quickly to
implement the 16-foot.
So we're just telling you now, in advance, because we may not have time to
tell you before we'd actually have to do that, and then, probably with whatever
assistance you may be able to render to us, we know we're going to have to do a
rulemaking to amend Subpart M, because of SENRAC and for other reasons, and the
effort by the rider even, may provide additional incentive because of the time
frame and so on.
So if you have some recommendations to suggest to us, we'd certainly like to
have those.
I would just like to say one further thing. That is, in some of the hearings
on the Hill, we heard from the manufactured housing people that they didn't
believe that they had any opportunity for input and so on, and that was, of
course, they did not take part in our rulemaking but they certainly had the
opportunity.
Then the remodelers -- those who go back into people's homes and do remodeling
-- were not aware that they were also covered, and we certainly
tried to make people aware that this rule applies to anybody doing residential
construction.
They actually spoke and said that they had problems with the rule but, of
course, had not participated in the rule, so we're making some efforts to try to
get more bodies involved and groups involved in some of the pre-rulemaking
efforts as we're doing with the confined space and the lockout tagout effort,
which we've brought to you earlier, by circulating some drafts around to various
trade associations.
These are not necessarily fun times for us in the case of fall protection,
but we've got to be realistic if we have to do some things, and we're going to
have to do them, and we can certainly utilize your assistance in doing these
things.
Thank you.
DR. RINGEN: If I understand you correctly, on Subpart M, you are not asking
us for any comments at this point in time, but you may have something more
specific that you will come with to us for a very short turnaround in terms of
comments?
MR. SEYMOUR: If you all are aware of some areas that you believe Subpart M
needs to be amended, we would like to have that information over the next
quarter or whatever.
I don't expect that we'd have the Proposed Rule done immediately, depending
on what happens with the budget and what the President does and so on, but if we
have to act as the rider may stay in place, then we will have a very short time
to do these things in.
DR. RINGEN: Yes, Stu.
MR. BURKHAMMER: Just a comment.
I think a few years ago this Committee, prior to my being on it, addressed
the issue with you all about trying to get Subpart M to cover certain aspects of
steel erection.
I think this Committee at the time -- and you can look back and check the
references to see that I'm correct -- told you that it was wrong to try to use
Subpart M to mask not being able to use all parts of Subpart R and trying to
stick some steel erection problems in Subpart M, and you didn't listen.
Now I see from Stanley reissuing his memo, that all of a sudden you're
listening.
I guess the point is, when we try to explain something to you and tell you
something, we're not doing it just because we don't like you, we're doing it to
try to save you guys a lot of headaches and problems, and I think this is a
perfect example of one that you had a headache and problem because you didn't
listen to the committee.
MS. BIELASKI: I might just mention that Subpart R only addresses permanent
and temporary floors into your buildings.
The areas that subpart M had originally intended to cover were in
non-building construction areas that were never covered by Subpart R.
MR. BURKHAMMER: But I think when the first memo came out, it tried to mask
some of that, and it wasn't really intended. I mean, it was kind of ambiguous
what it tried to do.
Instead of coming right out and say, boom, boom, boom, like this one does,
there's a little difference in the interpretation.
MR. SEYMOUR: Well, this committee also recommended that we try to standardize
on a fall height, which we did, and it has not been well received.
VOICE: You win some, you lose some.
MR. SEYMOUR: That's right. Exactly.
MS. BIELASKI: Yes.
MR. SEYMOUR: But we are going to have to respond to whatever the Congress and
the appropriation bill finally say, if anything at all. I just wanted to alert
you all to the possibilities.
Thank you very much.
DR. RINGEN: Are you all done?
MR. SEYMOUR: Unless you all have questions, sir.
DR. RINGEN: Any more questions or comments?
[No response.]
Before we continue, actually continue towards a break, I think, we would like
those of you who are here who have introduced yourself yet to please do so.
We'll start over here.
[Further audience introductions - inaudible.]
DR. RINGEN: That's it. Why don't we take about a 20-minute break, and we'll
be back here.
[Recess]
DR. RINGEN: We're going to make a couple of changes in how we'll be
proceeding this afternoon.
First, this morning we'll hear Celeste Monforton talk about policy and
legislation. She will speak for about a half an hour, and then when she's
completed, I'm going to ask Stu to give the overview of the Musculoskeletal
Disorder Standard before we take lunch.
The reason for that is that we've had a number of additional people request
time to make comments on this in the afternoon.
So in the afternoon, we're going to have three panels right now of
presentations. They will start immediately after lunch, at 1:00.
The first panel is Delorenzo Sheet Metal and Air Conditioning Contractors
Association;
Claudia Harris, Plumbing Heating Contractors;
Pete Chaney, Associated General Contractors. That's the first panel.
The second panel is going to be George Kennedy from the Utility Contractors;
Charles Maresca from the Associated Building Contractors; and, Regina Solomon from the Home Builders.
The third panel has been added since this morning. It's going to be Anita
Drummond from the American Subcontractors Association;
Ellen Larson from the Air Conditioning Contractors; and, Mark Freedman from the Painting and Decorating Contractors.
Now, given that we have these additional presentations and in order to get
through this and to make sure that we have the opportunity to ask questions of
those who make presentations, we would like these presentations to be shortened
from 15 minutes to 10 minutes.
Based on the discussion that I've had with some people during the break who
are making presentations, again, the issues that -- well, you had a short time
to review this document, the issues that we're looking for is the substance of
the document. We're not rushing to get a document out here.
We want to make sure that we have comments and that we can deal with them in
a thorough fashion as possible, and we may come back with additional information
later on if we think that's necessary. Please keep that in mind.
Are there any comments or questions about how we're going to proceed.
With that, then, Celeste Monforton, welcome. We'd like to hear from you about
the great things that are going on.
POLICY MONFORTON
CELESTE MONFORTON
MS. MONFORTON: I am Celeste Monforton, and I work in OSHA's policy office.
I've been doing legislative affairs for about four years. I have to admit it's
been extremely busy, as many of you.
I never start a presentation without a visual aid. This one is failing. The
one test of visual aids is have something that doesn't fall down.
I wanted to just see for myself why we have been so busy, and so I did a
totally unscientific survey. I used the Library of Congress' Thomas data base,
and I did a search of all the times that OSHA, Worker Safety and Health, and a
couple of other terms were mentioned in the 103rd Congress, during the entire
2-year 103rd Congress.
If I had Carol Merrill here, she would take this apart.
But there's 572 times, which is a pretty decent number. That would be bills
that were introduced in the 103rd Congress, or if there were hearings held on
OSHA.
So far this year, in the 7 months of the 104th Congress, those same terms
were mentioned 432 times. Like I said, it's not scientific but it does show you
that at least the word OSHA and, as some have called it a 4-letter word these
days, has certainly picked the interest of members of Congress.
DR. RINGEN: I was going to ask, how many of those were favorable mentions.
[Laughter]
MS. MONFORTON: Like I said, this was not scientific, and I did it very
quickly this morning. I thought it was interesting, and it confirmed my own
suspicion that -- not suspicion, my own belief -- that we have been extremely
busy. We've had many hearings.
We just completed appropriations last week, and I guess that's what you would
like me to talk about. I'll hit on the major pieces of legislation that we've
been tracking, and then I'll be very happy to answer any questions that you
might have.
Last Friday, the House took the final vote on the Labor, HHS, and Education
Appropriations bill, which includes funding for OSHA for next year, starting in
October. The vote on that bill was 219 to 208. Pretty close margin.
There were two specific amendments of particular interest to us, and there
was lengthy debate on both of those amendments.
The first was offered by Congressman Obey of Wisconsin. That amendment was
his attempt to delete from the bill a number of riders. I think there were 15 or
17 riders, two of them were OSHA riders. There was much debate on that
amendment.
There was much support and discussion about the OSHA program and particularly
the new initiatives that Joe Dear has undertaken.
On the other hand, there was still a lot of criticism about the agency and
our enforcement practices, so it was interesting to both listen to or read it in
the next day's Congressional Record.
The vote on that measure was 270:155.
Then there was also an additional amendment that was introduced by
Congresswoman Pilosi from California, and her amendment had to do with three
particular Department of Labor riders. One of them was the rider on ergonomics.
There was quite a bit of debate about that.
That amendment was also defeated by a vote of 229:198.
On the Summary of Legislation that I provided to Holly to put in your
package, I have included the language from the riders that it appears at the
footnote of the bottom of that first page. Those are the riders that are
included in the House FY '96 Appropriations bill.
I was here for the last part of your earlier panel when Tom Seymour was
talking about the fall protection rider. That's the actual language of the two
riders. The first is the ergonomics rider and the second is the fall protection
rider.
As you may or may not know, the bill that passed the House has funding for
OSHA at a level of $264 million with some specific direction to the agency of
where that money will be spent. It represents a more than 15 percent reduction
in funding overall, and a 33 percent reduction in funding for our enforcement
programs.
The Senate will take up this bill once they recess and when they return from
their recess in August, probably sometime toward the middle of September.
At this point, we don't have a clear indication of where the Senate will go
with this particular bill or if some of that money will be restored or how they
will handle the riders.
Any questions about appropriations?
[No response.]
There's quite a bit in the newspapers; at least in the newspapers here in
D.C., about that whole process.
Obviously, the other major piece of legislation that we're tracking is OSHA
reform. In the House, Congressmen Ballenger's bill now has 124 cosponsors.
Congressmen Ballenger and his subcommittee held a couple of hearings before
the bill was actually introduced, and then he has also held three other hearings
since the bill was introduced.
The most recent was a hearing a couple of weeks ago, and it deal primarily
with the Mine Safety and Health Administration.
There were also two days of hearings in the Senate that Senator Kassebaum
held. On the second day of hearings Joe Dear testified. And he was asked
specific questions about Senator Greg's OSHA reform bill.
We were asked at that hearing to provide comments on Senator Greg's bill, and
we are nearing completion sending him a letter with our specific comments on his
bill.
As of yesterday, there hasn't been any indication that Senator Kassebaum is
ready to introduce her own bill or there will be any action in the Senate in the
committee in the near future on OSHA reform. Most of the activity has been
taking place in the House.
Any questions on OSHA reform?
[No response.]
I don't know if you were provided copies of Secretary Reich's testimony
before Congressmen Ballenger.
In the Senate, recently --
DR. RINGEN: I think it's important to point out, in that hearing, that
Chairman Ballenger asked for help with the construction parts of the bill, that
he felt that the bill does not deal well with construction and multi-employer
workplaces, and he has no idea about how to deal with those.
MS. MONFORTON: In the Senate, the last couple of weeks, their time was
consumed on the regulatory reform bills. The bill in the House, as you recall,
passed in late February, and it took some time for the Senate to move on those
initiatives.
The debate in the Senate began on July the 10th and lasted nearly two weeks.
It was something that we devoted a lot of time to. We looked at the many
versions of the bill that had been circulated.
Our constant focus on that particular bill, and actually on any piece of
legislation, is how it will affect worker safety and health.
A lot of the debate seemed to focus on agencies talking about getting caught
up in red tape and all the rest, but the bottom line was we wanted to look at
those particular provisions and say, how is this is going to impede our ability
to protect workers. That was what we really tried to focus on.
At one point, Senator Kennedy introduced an amendment to Senator Dole's bill.
There was about an hour and a half debate. It was an interesting maneuver, an
interesting idea that Senator Kennedy had, and it would have exempted OSHA and
MSHA from the specific provisions for risk assessment and cost benefit in the
bill and replaced it with language that was in Senator Greg's OSHA reform bill.
There was much debate on it, and that amendment was tabled at the request of
Senator Kassebaum, and there was a vote on it, and I think it was like 58:39, or
some vote like that.
Like I said, there were two weeks of debate on reg reform. There were three
cloture votes, and they did not approve the cloture vote to shut off debate on
that particular bill, so it's hanging out there.
As we understand it, there's some behind the scenes discussions with a couple
of democrats who are interested in still moving a regulatory reform bill
forward, with some modifications to the Dole bill, but it looks like they'll
have to take that up in September when they return from the recess.
The other interesting item had to do with corrections day, which was an
initiative proposed by House Speaker Gingrich to correct what had been called
stupid or dumb regulations, in a somewhat expedited fashion.
There was a corrections day hearing held in the economic and educational
opportunities two subcommittees, and they were looking at an OSHA regulation or
a regulation for respiratory protection, and how it affects fire fighters.
In that same hearing, they were also looking at two other Department of Labor
regulations.
We were not invited to testify at that hearing. Instead, they had a person
who was advocating the change to the regulation, and they had the fire fighters
union at the hearing.
There was interesting discussion about the rule, and at the end of the
hearing, the chairman pretty much decided that that issue was a little too
complicated to handle through an expedited hearing or expedited maneuver, and so
that particular corrections day measure was dropped.
Congressmen Vuconovich had introduced a bill that would have made this
correction, but what we've decided to do in discussions with her and the people
in her state who have a particular problem with the regulation, we agree to help
them work it out at the state level, and so that was a corrections day measure
that we were paying close attention to but actually it kind of took care of
itself through the hearing process.
There are numerous other bills that we are keeping track of. There's a
consultation bill, there's a bill on equipment that Congressmen Andrews has
introduced in the last couple of years.
It's called the Occupational Safety and Health Personal Protective Equipment
Act.
The employee involvement, the team act, is something that we're tracking with
regard to trying to figure out how that would mesh with our safety and health
program initiative, so those are all other items that we are keeping track of in
terms of what's going on in the hill.
I would be happy to answer any questions that you have or your reviews on
legislation.
DR. RINGEN: Bill.
MR. SMITH: I'd just like to say that --
DR. RINGEN: You've got to use a microphone, please.
MR. SMITH: -- as a member of this Committee, as well as the Operating
Engineers International, it's a major task that you guys have to overcome your
office, as well with Joe Dear.
In talking to a lot of contractors, as well as the labor groups, I guess
coming from the right side where it's coming from, there's a lot of the
contractor representatives and associations that think that's way too far right,
where they're going.
In addressing that, I know Joe has put in some of his new policies of focus
inspection and some other areas of construction, so it is a good check and
balance to the system.
I'm hoping that as we hear from previous reports that it doesn't come out the
way it is presented, anyway, because I think everybody in this room understands
that you need some enforcement factor there to be able to correct some of the
problems out there because not everybody are good contractors, and not every
worker is a good employee, either, in that sense, so you definitely have to keep
them both in line. This has to be a means to do so.
I just want to say that we applaud what you're doing, and I think we're going
to have to really pick up the pace and get on the ball and try to fix some of
it.
In dealing with local politics, the way I had before I came here, I know that
the President has the veto power to hopefully stop bad legislation in the end.
It's just that he, like all executives at that level, don't want it to hit
their desk so that they have to do it, and I think that's where we all have to
get together and work out these compromises before it gets to the table.
So I'd like to say that, you know, it's a major task, but there's some areas
that need to be cleaned up but definitely not in the direction that the
legislation is written as it is right now.
MS. MONFORTON: Yes. That came up at the hearing that Joe Dear testified at a
couple of weeks ago before the Small Business Committee.
It was an interesting dialogue. It was supposed to be a forum where Joe Dear
was on a panel with four or five small business people, and they were supposed
to be talking about the burdens of regulations and what OSHA is doing to reduce
some of those burdens.
The members of the Committee, several of them, really took it as an
opportunity to vent their frustration, their anger, what they're hearing from
some of their constituents about OSHA.
While most of the small business people were very interested in what Joe Dear
was saying and what his initiatives are, they're still not convinced but seemed
to indicate they wanted to give those programs a chance.
Their major concern was that they believe Joe Dear is well meaning and an excellent public servant, but they're not
sure that, when he leaves, how many of these things will remain in place, and
that's why they were saying that some of legislation is important, and that's
what we heard at the hearing.
DR. RINGEN: I was struck at the Ballenger hearing about the testimony from
the North Carolina State OSHA, where they talked about how consultation in
absence of enforcement is useless, and that these are not two separate concepts,
which is an issue that we're going to come back to.
Jack, are you in agreement?
MR. POMPEII: The only analogy that I could give this Committee and the people
in this room is when I was superintendent, division of safety and hygiene in
Ohio with the Industrial Commission, I had 313 consultants. They fairly much
just sat around in a huge industrial state because I think Federal OSHA only has
55 inspectors for 4.5 million workers, and maybe 300,000 workplaces.
I kind of parachuted out over Oregon 8 years ago, and the whole thing has
changed, because I have approximately 100 inspectors for 1.5 million workers, a
large cadre of consultants, trainers, and technical people to assist our
employers and employees of the state.
I absolutely applauded Charles Jeffers' testimony because just the fear of
Jack and his enforcement people, which we feel is very reasonable in Oregon, we
have low penalties and I feel we do the right thing, the employers of our state
flock to consultation and training and technical assistance.
As a consequence, probably the statistics for this past year '94, will have
six years of incident rate reduction of injury, illness, and fatalities, with an
increased workforce and an increased high hazard industry.
So I really think the two things of the Ballenger bill that really bother me,
all the other politics aside, if you change the tenets of the law, first
instance warnings and employees can't complain; I think we go back to the days
my ancestors in the steel mills of Youngstown and Steubenville, Ohio, when we
averaged about 30 deaths per month in the mills.
I just think you need a good combination of enforcement, consultation, and
training and technical, and the bad actors will be dealt with with enforcement,
and the majority of employers are good, and they want training and assistance
and consultation. I concur with that.
DR. RINGEN: Al, do you have any comments on this? Now that you're retired,
you can express yourself fully.
MR. MEIER: I predict that if you get rid of enforcement, you won't have any
need for consultation, and I think lawyers probably prefer no presence not any
presence, and I guess consultations are the lesser of the two evils.
DR. RINGEN: Anything else?
[No response.]
DR. RINGEN: Thank you.
MS. MONFORTON: Thank you.
DR. RINGEN: We will now precede, then, with the main issue for consideration
at this two-day meeting, which is the Proposal for the Protective Standard for
Musculoskeletal Disorders.
We're going to need the overhead projector.
As I said, what we'll do before lunch is, we have about an hour, and maybe
make the presentation and somewhat less, so we can have some questions.
We will have Stu's overview of the standard before lunch, and then we'll
immediately after lunch, at 1:00 exactly. go on with the panel's. We have asked
time to give comments.
COMMITTEE DISCUSSION ON DRAFT PROPOSED
PROTECTIVE STANDARD FOR MUSCULOSKELETAL DISORDERS
IN CONSTRUCTION
MR. BURKHAMMER: Earlier this year, Joe Dear came before the Committee, and he
challenged us to develop a standard or put together some thoughts regarding
musculoskeletal disorders in the construction industry.
So we formed a work group and have been working very diligently ever since to
put together this request.
At our last meeting, the Committee had a book -- which Bill brought his copy there for those of you who haven't seen
it; it's about 4 to 5 inches thick -- of research that the work group performed.
We looked at all different types of musculoskeletal disorders, a tremendous
amount of statistics to support the need for a musculoskeletal disorder standard
of some kind, and there is a tremendous amount of statistics in that book that
the full committee has had the opportunity to see.
The Committee was made up of Bernice Jenkins, Al Meyer, Jack Pompeii. Anna
Maria served as our medical advisory; Bill Smith and myself.
And then we had some subgroup members from outside the Committee, Scott
Snyder from the Center to Protect Workers Rights, who acted as our Secretary and
data collection agency; Claudia Harris from the Plumbing, Heating, and Cooling Contractors;
Peter Huddleston from Lawrence Livermore Labs.
At various times during our deliberations, we had representatives from the
Labors, Union, the Building Trades, and ABC. So we had quite a mixture of people
that were in and out of this process during various times.
Needless to say, it was a very difficult task, extremely controversial, and
we had many different views represented during the process.
I kind of equate the development of this draft to back when some of the other
ACCSH committees in past worked on the HAZCOM standard, the asbestos standard,
and Subpart R.
Everybody has a different thought, everybody has a different view, and it's
very difficult to find common ground.
As the work group noted in our previous publication, there is a need, in our
opinion, for some type of standard or document that addresses what we think
causes a great portion of injury in the construction business, and that's
musculoskeletal injuries.
There are several related issues that go with musculoskeletal disorders, and
they're not all easily defined.
Housekeeping, material handling and placement, size, weight and dimension of
the material that you're handling, and the equipment that you're handling; Workplace positioning;
Physical body motion, and the list goes on.
In addressing this draft, the work group discussed and took into
consideration all of these issues.
In addition, at length, I might add, we discussed the difference between
large and small employers.
A personal note that I'm getting a little tired of hearing is that Bechtel
and the large contractors can do it but, gee whiz, the small contractors can't
do it.
So I kind of interpret this as saying Bechtel and large contractors can
provide safe workplaces and the small employers can't. Now, that's a pretty
blunt statement on my part, but when you listen to all of this crap that's going
around, it tends to get to you after a while, and that's what people tend to
make you believe.
Bechtel and the large contractors have lots of safety people, they have big
staffs, they have lots of money. They can do anything they want to do.
Well, believe it or not, Bechtel and a lot of large employers are in business
to make money. I know for some people it's hard for them to believe that,
because they think that all we do is go around and spend money to have these
great safety programs to protect all of these employees, and we do it for free.
Well, we do it because it's good business sense. It's not a question of free
or cost, it's a question of what's right and what's wrong. I think those of us
in this room know what's right.
When you look at musculoskeletal disorders and the types of injuries we're
seeing, the majority of them can be related to some type of motion or lifting or
straining that I've mentioned earlier.
I think we also have to ask ourselves a question, and Bill brought it up
earlier today when we were talking about OSHA in general, and it's real popular
now for everybody to stand up and take shots at OSHA.
If you think back to pre-1970, '71 when there was no OSHA and all the people
that were injured and all the people that were getting hurt, and you talk to
some of the old building trades people, my father being one of them, my uncle
being one of them, my brother being one of them, getting hurt was a way of life
in the construction industry.
That's just the way it is. I expect to get hurt, I expect to go to work. But
gee, I might get hurt. That's life in the construction industry back in the old
days. That isn't life today.
You ought to read several letters that a lot of the employers are getting now
from wives and mothers of construction employees, saying that they really
appreciate having their son or their husband go to work and come home at night
the same way he left in the morning, so they don't have to get a call in the
middle of the afternoon or later that night when their husband or son didn't
come home, saying, oh, the reason he didn't show up is he's in the hospital,
because he got hurt today.
In 23 years, we have had an effect on some of those things. OSHA has made a
difference. I think ACCSH has made a difference, too.
This may be one of those standards where we step out of the box and do
something different. We do make a difference. It's a change. It's different from
the norm. It's something that everybody says, oh, gee, why do we have to do
this. It's just more paperwork, it's just more this, it's just more that. We do
it because it's morally right.
I think if we can eliminate a lot of the sprains and strains and back
injuries in the construction injury, we can reduce a lot of the workers comp
costs, we can reduce a lot of the injuries, and we can keep the construction
environment going and working safely.
With that little Southern Baptist preacher speech, we'll move on with the
slide show.
This cartoon, maybe some of you saw it, appeared in a magazine called
Workplace Economics -- Ergonomics -- which was the July/August issue. It kind of
depicts in general construction and the different types of musculoskeletal
movements in construction.
I particularly like the bottom left-hand corner, the fellow with a
jackhammer. That's one of those non-protective vibrating tools, and it vibrates
your whole body.
But you can look at that and see some of the different types of work, the
roofers, the hammering, the sheetrock, mailing, vibrating, chipping, toting,
carrying, scaffold work.
When you combine all of the different tasks in construction that we do today,
a great portion of them can be related to musculoskeletal movement and
musculoskeletal type disorders that we are seeing.
So what I'm going to present to you today is a summary of the musculoskeletal
disorders in construction draft standard that we have worked on and have
progressed to to date.
What we have done may not be what we finally get to. The Committee put this
together. We're anxious today to hear the presentations from the public.
Hopefully a lot of it will be good substance that we can think about and may
incorporate to make this a better piece of work.
It's not a final draft, even though it says that. It's a final draft for the
purposes and presentations to this Committee today, but it's certainly not a
final draft to present to OSHA, because none of you have had a chance to say
anything.
So one of the reasons I'm here today is to listen to what you have to say,
and I hope you have a lot of good things.
Again, I want to relate, like I did last time, when we started work on this;
this is not an ergonomics standard. I related in my last presentation that my
definition of ergonomics is factory workers, chicken plucking industry, meat
packers, assembly line work, where you do the same thing over and over and over
and over again for 8, 9, 10 hours a day.
Construction is different. Every employee on a construction site does not do
the same thing every minute of every day. They do all kinds of different things
that relate to different parts of their body and have different effects on the
musculoskeletal system of their body.
That is why the name of this is musculoskeletal disorders in the construction
industry.
The "Purpose" section of the standard -- and, by the way, upon
completion of this, I have handouts of the slide show which will be back on the
table for you to pick up, and we have copies for the Committee.
The "Purpose" Section address the occurrence of work-related
musculoskeletal disorders in construction. We've revised the signal risk factors
and made them applicable to construction type work.
We established a 2-hour single work shift exposure limit.
We deleted the trigger mechanism of when a musculoskeletal disorders is
considered.
We revised the multi-employer worksite section to require contractors and
others to provide their employees with protection to meet the requirements of
this section and to "coordinate" their efforts, not share
responsibility for compliance, and that's a big change from the original.
We eliminated the "grandparent exceptions" for employers with
previous programs because we really don't know of anybody in construction nor
have heard of anybody in construction that has an MSDS program.
If anybody knows of any or we have some as examples, please share them with
us.
We've revised the checklist. We've had a lot of comments about the checklist
and a lot of people in the industry that I've heard comments from have questions
and concerns about the checklists, so we tried to make the checklist more
construction simple and user friendly.
We changed the completion date to 18 months for all employees to do task
analysis.
We deleted references to farm and agricultural work because it is a
construction standard.
We deleted the "quick fix" section of the standard because I don't
think this particular thing is a quick fix situation. This is a long-term,
long-time fix situation.
Whenever controls are required, they are to be controlled to the extent
possible. We played with a lot of different words here: "in a timely
manner," and that was one of my favorite ones, and the Committee tried for
a long time to get me to define "in a timely manner," and since I
couldn't define it, we changed the term.
Problem tasks still exist after extent feasible, and when you've done all you
can do and you still can't get to the point where it is a nonhazardous
situation, we put in that we will monitor for continuous improvement.
When new technology comes out, we can use it.
We will continue the annual refresher training for the employees so he
understands that we have done all we can do to fix this particular tax, and we
can't get it to the point where it will not be perfect, so he still has to work
in this particular area or she has to work in this particular type of
environment.
It no longer limits personal protective equipment to preclude support devices
worn on the wrist and back.
There is a NIOSH study that has been out about back supports. We and Bechtel
have done a comprehensive study, which we will be forwarding to NIOSH in about a
month, about a three-year study we've done on the use of back support.
I think they can be work, and they can make a big difference in your back
injuries if they're used properly.
Control measures for manufacturers: We put in a whole section for
manufacturers for them to label the weight of the packages that the employees
are required to lift so they're not guessing what it weighs or what's in it;
Determine how it will be handled. Can the manufacturer supply lifting handles
or some type of mechanism to make it easier for the employee to handle the
material or equipment; and, Label with the weight and dimensions of bundles and equipment, et cetera, so
there is no guessing as to what you're doing.
We deleted Section G altogether, Ergonomic Design and Controls for New or
Changed Jobs.
When you take a look at the tasks, you're going to catch those anyway, so
having a section dealing with changed jobs is relevant, because whenever you
change jobs or perform a new task that you don't have a task description of,
you're going to have to do one.
The one thing that we wanted to make sure of, that you only had to do a task
description or definition once. It is transferable to any other project you have
or any other job you have.
So if a carpenter, for example, is putting up sheetrock, or someone is
putting up sheetrock, and you have a task description of putting up sheetrock,
you only have to do it once. You don't have to do it for every task involving
sheetrock.
Remove the employee information requirements to the training section, where
we think they really belong, because employee information is training; you're
providing something to them.
It allows employee representatives access to copies of the standard, and
there's some ways that it has to be done to do that.
We deleted the references to ergonomic teams in the training session. It's
not an ergonomic standard, and we also do not have musculoskeletal teams.
We changed the completion date for training to "immediately" for
information; 6 months for people doing job analysis, and 2 years for those doing
task analysis.
We required that employers make available rather than provide various
information to the health care provider within 5 working days of initial injury.
This is so the health care provider can determine and help him to lay out a
recovery plan for that employee.
We change musculoskeletal disorder management plan to recovery plan because
that's the name of the game, is to get the individual recovered and back to
work.
We changed the requirements for employer to ensure plan is followed at all
times to only "after employee returns to work." It's very difficult to
follow a plan when you don't even have the doctor's diagnosis yet.
So we're saying we get the doctor's diagnosis, we find out if there's a job
the employee can perform, and then after that we monitor his recovery.
We deleted the record keeping requirements that transfers all records to
NIOSH and former employees if an employer goes out of business.
We established a 3-year retention requirement for checklists, tasks
improvement processes, and training materials.
All record-keeping information will be kept in accordance with 1926.20.
We changed all references from "workplace" to "worksite".
We changed the term from "job" to "task".
We revised all four Appendices to reflect them and make them construction
sensitive.
We changed the reference from "designated representatives" to
"authorized representatives", for legal reasons.
Appendix A we made mandatory. It's a simple explanation of the standard. It's
tremendously reduced, and it's extremely simple to understand. It helps guide
you through the standard.
Appendix B is non-mandatory. We added construction-specific examples at the
end and took out the manufacturing examples.
Appendix C is mandatory. It's simplified to fit construction. Anna Maria was
a big help in revising this standard with her medical background.
Appendix D, the training appendix, is mandatory; and we simplified it to
reflect construction.
Basically, the work group's recommendations to ACCSH are that ACCSH Committee
review the work group's final draft, which has been mailed to all of you.
ACCSH Committee, we listen to the public comments from concerned individuals,
which we will hear this afternoon after lunch;
That ACCSH allows the MSD work group to continue work on the final draft,
incorporating good ideas and comments that we hear today; and,
The work group report is presented to ACCSH Committee tomorrow, which I will
present after I listen to the public comments today. At that time, I may or may
not have further recommendations for the Committee.
Thank you.
DR. RINGEN: Thank you very much, Stu. That was the shortest 1-hour
presentation that we've had in a long time.
Also, I want to stress that the activities of this Committee's private
enterprise are volunteers, and Stu, you and the work group have done a very,
very fine job, which at least I think all of us on this Committee want to
commend you for having done it, and this has been an enormous undertaking.
All of the other members of the Committee that have helped you have done a
tremendous job. I think everybody here has just about had input into in one form
or another during its development.
Are there any questions for Stu about the changes that have been made in the
documents since he last presented it in May?
[No response.]
If there are no questions, I'm going to make a few comments with regard to
this overall issue and the rest of the day.
We want full input into the development of this document. The purpose here is
to create a document that we think will be relevant to the industry and that we
think can address this problem, which I think all of us on the Committee share
an agreement about is very substantial.
ACCSH is an Advisory Committee. OSHA, at one point -- Joe Dear, in fact --
asked us if we would look into this particular issue, because he recognized it
was going to be a very difficult issue, and we tried to create an open and a
fair process.
The working group meetings have been well publicized, and interested parties
have been invited to participate, and Stu made a point of bringing out the
diverse groups that have participated and had discussions with the work group
during its deliberations.
At the same time, this Committee, as a private undertaking, establishes and
has always established work groups that are also private and keeps its
activities private.
This is not a rulemaking forum. We don't get involved in rulemaking. We don't
have formal rules for how we operate, except that it is private. As a result of
that, we try to keep the deliberations of the work groups, certainly the
products that are being developed by the work groups, private until the time the
work group thinks it's fully enough developed so that it can be shared with a
broader community for comments.
That's almost necessary in order to get anything accomplished at all.
Now, in this case, an earlier draft of this -- maybe it was the final draft,
I'm not sure -- was distributed and by mistake to the Building Trade Safety and
Health Committee, head of this meeting.
It was distributed by Scott Schneider on my staff, and I only became aware of
this about a week or so ago, when Stu brought it to my attention, I think Holly
as well. I think that had been brought to your attention by other people here.
That should not have happened. Scott was under the understanding that this
draft was to be distributed to everybody and thought that this was the time to
do it. So I apologize to all of you for that mistake.
At the same time, I want to point out to you that our objective is to get
everybody's views as fully as possible, and so today, when we're having public
comments, we have 9 groups that are going to participate and make public
comments, and all of those groups are industry representatives. So it's not like
we're going to get an unbalanced response to this.
Even though some of you may say that you've had short time to review the
document so far, I doubt if your review will be any less rigorous than what the
building trades may have engaged in.
So since I've now dealt with this issue that's been of concern to some of you
regarding our procedures, I want to restate what they are.
They're private; We do engage, as fully as possible, in public activities and making our
activities public;
We do try to keep the products of our work groups private until such time
when the work group chairman decides that it's time to release them. We intend
to keep working in that way in the future.
We also intend, when it is for us to make recommendations to OSHA about a
particular issue like this when we start from scratch, to make sure that we have
had input from all of the concerned parties, and we will take that input very
seriously.
It's not like we're going to ask you to make comments here and then ignore
what you say. The purpose is to get what you have to say and then create a
document that we all can live with, hopefully, in the future, so that we can
address this problem.
I also want to express two views of my own before we get started this
afternoon because I will ask all of you to make presentations about these
things.
The first view is that musculoskeletal disorders are epidemic among
construction workers, an enormously big problem. I want to hear if you disagree
about that statement and why you disagree with it.
All of the data that I look at, whether it's chronic or acute musculoskeletal
disorders, are of an enormously high incidence, much higher than it should be.
The second is, to reiterate a little bit what Stu said: That is, this thing
about small businesses and the difficulty of complying with this.
I just want to give you a little anecdote to think about because it's brought
this to my own way of thinking, and it's a personal anecdote.
Two years ago we engaged in renovation of our house. Not a big renovation;
ended up being much bigger than it should have been, but that was our fault. But
it was a renovation where we put out for bids. We had an architect design it,
put out for bids.
Our RFP contained five different aspects of this job. We required each
contractor to bid each of those separately and then in various combinations to
see what we wanted to go ahead with.
This also required structural alteration of the house, and we required the
contractors in their bids to present plans for how they were going to make the
structural operations, and have those plans certified by a professional
structural engineer.
This was a fairly complicated bidding process and a fairly complicated
proposal for contractors to make. Nevertheless, 5 very small contractors had
absolutely no trouble making them, had no trouble going out, getting the
structural engineers, coming back and presenting to us in great detail their
plans for this so that we could select one of them.
The contractor that ended up being selected would certainly be defined as a
small contractor. It was himself as a carpenter and his helper. That was the
entire firm.
Now, they were able to go out and subcontract for HVAC, for tile setting, for
all of the other things -- electrical, plumbing, and everything else. They were able to get a
structural engineer during the bidding procedures and review the whole project
and figure out what needed to be done.
It's not like this stuff can't be done if it is required by somebody. If it
is required, it's clear that contractors, large or small, want to comply with
it. The question is, how do we get to that point in a manner that is rationale
and acceptable to all.
I think when it comes to the business product itself, the business of selling
whatever you are doing, of obviously getting the business, when it's willing to
go to great lengths.
To things when it comes to protecting safety and health, it seems to be
unreasonable.
So I'm going to ask you about that sort of an example and whether you think
it's unfair of me to say that we can put burdens on small businesses, and we do
it all the time in the course of the selling or buying services, and small
businesses respond to this all the time in order to get business.
Those are my own sort of prejudices that I bring to this consideration and to
the discussion that we're going to have this afternoon, or the two views that I
feel are fairly fundamental.
There may be other members of this Committee who have other things to add to
that that they will be interested in and, if so, I think out of fairness to
those who are going to make presentations, might as well deal with some of those
now.
Any comments? Bill.
MR. SMITH: I would just like to say one thing to the audience.
I didn't know also about Scott handing out the draft, but if he did, I mean I
had a draft from the Committee. This is what would have been handed out to the
Safety and Health Committee over at the Building Trades.
As you can see from what Stu's presentation was today, this is the draft that
they're working from now, which is nowhere near in comparison to the material
that was handed out. Of the people that got it, I don't know how many even
looked at it, read it, or did anything with it, but basically this is where
we're all starting from again.
So I think everybody has the same opportunity, from this point, as Stu is
saying, to come and go forward from where we are here, not from where we started
from way back when.
In response to that, it's just that a lot of the concerns, I'm sure, have
been addressed and deleted and changed and remanufactured and molded into
construction, because it is a different environment.
Going from that to this and probably from this maybe to something else, is I
think something where Knut wanted people to address what's in it not the process
of how we got here; just what's in it.
Thank you.
DR. RINGEN: Any other comments?
[No response.]
DR. RINGEN: We're still a little bit ahead of time. We're not going to start
the afternoon session until 1:00 because that's what publicized, and we're
committing to sticking with that. We'll take a lunch break now and return at
1:00.
A F T E R N O O N S E S S I O N
(1:05 p.m.)
DR. RINGEN: We will start out with public comments. The first panel will be
David Delorenzo, Director of Safety and Health from the Sheet Metal and Air
Conditioning Contractors Association.
MS. JENKINS: I have some comments.
DR. RINGEN: Okay.
MS. JENKINS: As part of the MSD workgroup, I feel I need to make a comment.
You heard some comments from Stu earlier, and he reflected that everybody on
the Committee was in favor of an MSD standard. I think I said from the very
beginning that as part of the industry, I was not, and I don't agree with all of
the statistics that are in this book.
You can construe statistics to make them look like what you want them to look
like, and there is a difference between Bechtel, Trumbull Corporation, and a
company like Ted Webster's trying to implement a standard of this nature.
So I just wanted to go on record as saying those things, that should the
ACCSH committee propose the standard to go to OSHA, I'll vote negative.
DR. RINGEN: Thank you, Bernice.
The first panel is David DeLorenzo, Claudia Harris, Director of Government
Relations for the National Association of Plumbing, Heating and Cooling
Contractors, and Peter Chaney, Director of Safety and Health Services for
Associated General Contractors of America.
I have asked you to speak to about 10 minutes a piece, and I will time that.
We will start with David DeLorenzo.
PUBLIC COMMENTS ON DRAFT PROPOSED PROTECTIVE
STANDARD FOR MUSCULOSKELETAL DISORDERS IN
CONSTRUCTION
MR. DeLORENZO: I'm actually going to defer to Claudia Harris, who is a member
of the work group. She would like to start off.
DR. RINGEN: Okay.
MS. HARRIS: If I could, and again with your approval, Mr. Chairman, initiate
the comments through not only my role as a representative of a management
employer trade association, and then each of the individual groups can also give
their presentations.
I'd like to make a couple of general points in the beginning. That is, I
fully understand your requests not to discuss or not to concentrate on the
process, and that you are seeking comments today on substantive issues within
the standard.
I have to say that I was not expecting that, and that my remarks, as well as
those of my colleagues will, for the most part, talk about the process, the
procedure by which this policy was developed.
You had said earlier today that the meetings of the Musculoskeletal Disorders
Work Group were highly publicized, openly participated in, and I guess I would
have to disagree with that vehemently.
First of all, they were closed to only those work group members who had
participated in the first meeting.
Second of all, there was no publication or public notice of those meetings as
far as I am aware, and if you have any information as to that, I'd be happy to
see it.
DR. RINGEN: I think that the notice was given at the time that these meetings
were held.
MS. HARRIS: Right.
DR. RINGEN: We don't publish the dates for meetings of work groups.
MS. HARRIS: Right. Well, then, I guess that would contradict your statement
this morning which said they were highly publicized and there was wide
participation.
DR. RINGEN: Well, it's publicized to anyone who was here participating in the
Committee.
MS. HARRIS: No. The meetings were not open to the public. They were closed to
those members of the work group. So I guess that would be my first point.
That is the reason why my comments today and those of my colleagues will
address the process and procedures by which this draft was developed, rather
than the actual substance within the standard.
DR. RINGEN: Well, before you do that, I mean, this is a very practical
question here.
You may disagree with the process that was followed. The question is whether
you disagree with the substance of the document. If you don't disagree with the
substance of the document, then the process isn't very important.
If you disagreed with the substance, then we want to know why.
MS. HARRIS: Well, then I guess I could start from the beginning and say that
I absolutely disagree with the substance within that document, and therefore I
would like to discuss today the procedures by which that document was developed.
DR. RINGEN: Can you be a little specific about what substance within the
document you disagree with?
MS. HARRIS: Yes. I guess the first would be that common sense dictates that
in the standard setting process, it should begin with the identification that
there is actually a need for that standard.
I do not believe that OSHA, ACCSH or the ergonomics, or musculoskeletal
disorder work group has identified a need for that in the construction industry.
After that type of a need is identified, common sense would prevail that the
next step would be to proceed to worksites, to have firsthand worksite data
collection, both as to what the specific problems are but also to seek
applicable and common sense and reasonable solutions to those problems, through
demonstration projects, pilot programs, beta testing; there are a lot of
different terms and techniques to collect that data.
That process should probably take several years, and then that information
should be crunched and developed and considered by the standard writers within
the draft proposal process.
This process by which this standard did not start that way and, in fact, in
my opinion, it's going backwards, and I think my colleagues within the industry
would agree with that. So that's, I guess, the main crux of my comments.
I mean, I have several more points that I would like to make, but that's why
I disagree with the standard.
DR. RINGEN: When you say "it's going backwards," what do you mean?
MS. HARRIS: I don't believe that OSHA has identified a true need for this
type of standard in the construction industry, specific to construction.
I think that the numbers and statistics, as Bernice had said earlier, have
been skewed. I do not believe they are realistic. I do not believe that they
address the construction industry.
They're general industry. They're a fixed site. The percentage of articles --
and I think that this can be discussed at length by some of my other colleagues
-- do not address the construction industry.
I think that the burden for OSHA to prove that there is or identify the need,
to begin with, has not been completed.
MR. JONES: I'm Stephen Jones. I'm from the solicitor's office.
Just to be really clear about the way in which a work group is organized and
which it is intended to operate, this is the stage at which we have not, in
fact, made a finding that there is a particular rulemaking product that we are
going to be producing.
This is the stage at which we are, in fact, obtaining information, and we,
through work groups and other means do attempt to establish the data base and
the nature of the activities which lead to the particular hazard that we are
going to try to address.
So you are very correct in pointing out that the proper progress of a
rulemaking or the development of a rulemaking is to first get an understanding
of what is going on, and then develop strategies for addressing that.
When ACCSH sets up work groups, that is to contribute towards that process,
it is not to have a work group present a finished product or recommendation or a
consensus of its own.
The work group mechanism is supposed to be an accumulating, a gathering
together of viewpoints, and of information which will then enable the Committee,
when it is, in turn, presented with a proposal from the Agency, to act on that
in an informed and useful manner for the purpose of setting regulatory action.
So there doesn't haven't to be any disagreement about the overall purpose. If
this work group has certain actions which have occurred with which you disagree,
as a member of the work group, you are perfectly entitled to come forward either
in the work group meetings or in a presentation, such as you are making now, to
the Committee and addressing those points to the Committee.
MS. HARRIS: Right. But it was not an open process, and I do not believe that
OSHA can claim that this is an open participatory process, whether it's
fact-finding or data collection or whatever you want to call it, it is not open.
It was a closed group, and I was the only non-Committee member representing this
industry, the construction industry, upon the departure of Suey Howe when she
left ABC.
I am one person representing, I don't know, 5.4 million workers in the
construction industry. You know, I don't feel comfortable with that role, and I
hope that OSHA doesn't consider that a participatory process.
MR. JONES: Okay. I could say more to that, but, Stu, do you have something
you want to say also?
MR. BURKHAMMER: Yes. Let me address that.
Yes, Claudia is correct when she says that she was the only industry
association representative that sat in the work group. The reason she was the
only industry representative is because she's the only one that volunteered to
participate.
Every other one of you had the opportunity to be on that work group, and you
chose not to. Whatever reason, is yours, not mine. I can only fill the work
group with people that offer to be on it. I can't read minds, I can't guess.
She offered, we accepted it.
Suey offered, we accepted her.
Peter Huddleston offered, we accepted him.
We would have taken a great number of people who would have volunteered. If
you done volunteer, I can't figure out who wants to be on it.
MR. BURKHAMMER: Just a point, Claudia. I think you made mention you
represented 5.4 million workers. I would suggest that you represent the
contractors and you don't represent any workers, and that's not --
MS. HARRIS: Thank you, Bill.
MR. BURKHAMMER: -- a personal attack to you, but I don't think there's any
workers represented on this Committee.
MS. HARRIS: Well, I guess I disagree, in point, and that is that each of our
contractor members within the Association, we truly do represent the workers,
contrary to --
MR. BURKHAMMER: I again take issue with that and would like to debate it with
you, but I don't think any contractor association particularly represents the
workers.
MS. HARRIS: Okay.
MR. BURKHAMMER: I think they represent the contractor associations.
MS. HARRIS: Okay. Well, let's not get into that.
MR. BURKHAMMER: We could do that if you like.
MR. RHOTEN: Save the point.
DR. RINGEN: But you make the point that you don't think that, in this
document, there is enough information on the problem and defining the problem.
MS. HARRIS: No. I didn't say there's not enough information. I said that you
haven't identified that the problem exists.
A couple --
DR. RINGEN: Yes.
MS. HARRIS: I know I'm probably exceeding my time through the
question/answers, but I'd like to just run through --
DR. RINGEN: That's okay.
MS. HARRIS: -- okay -- run through a couple of points.
Some of them are in response to comments that were brought up this morning as
well as through my experience in working with the work group, so they're not
necessarily in any particular order, but I would like to bring them to your
attention.
The work group -- and, again, you did mention this this morning -- the work
group was informed last month that not everyone in the work group had been
playing by the same rules in terms of keeping the document internal.
That raises a great concern for me because I'm fairly new to the
participatory work group process within OSHA, and I did play by the rules.
Maybe I was naive, or I didn't play the game right, but it really concerns me
the one-half -- and I'm not saying that they're equal halves, but one segment of
the industry, that being those of management and employers, did not have the
equal opportunity to participate in the process.
And I understand your comments this morning, as well as Stu's, that we
started off with a 5-inch thick binder and we ended up with basically about a
1-inch binder with a 16-page standard.
That's not the point. The point is that that information was shared freely
within the building trades, and I kept my word and did not share that with my
colleagues within the Association community.
I do not declare myself a ergonomist, nor am I a safety and health manager. I
would have greatly liked to have depended on my colleagues for their assistance
and expertise.
DR. RINGEN: I have apologized to you, and that's water over the bridge --
MS. HARRIS: I realize --
DR. RINGEN: -- something we can't do anything about. We will take comments
fully on this and then make sure that everybody has a full say on it. Had this
been a rulemaking process, it would be a very serious problem.
MS. HARRIS: I do understand that. However --
DR. RINGEN: This is just advisory.
MS. HARRIS: -- within the process, there were several major decisions that
were done at the work group level of which my colleagues within the trade
associations do not have the opportunity to participate.
VOICE: They do now.
MS. HARRIS: Well, they do now, but they don't know what went on in the past.
DR. RINGEN: Well, the document is what's important.
MS. HARRIS: The creation of the document and the process by which it was
developed is also important.
DR. RINGEN: I agree with you on that, and again, I can only apologize.
MS. HARRIS: Okay.
DR. RINGEN: I believe it circulated probably a little wider on both sides
than we would want to admit, but the aim is to have the process have integrity
to it, so that's a fair comment. I've made that point. Now we've got to move on
from there.
MS. HARRIS: Okay. Well, I'd like it to be made part of the record. Thank you.
My final point that I'd like to just mention very briefly, in deference to
Sue, and he has been a wonderful leader on the work group, and I admire and I
respect his expertise in this field.
I understand what he was saying this morning about small and big businesses.
I don't think any one of our associations, but I can only speak for myself
today, is we understand and do not try and get away.
We understand the need to accommodate the musculoskeletal disorders. It's
just that larger and smaller businesses have different resources.
We have different methods, we have different implementation processes. I'm
not saying at all, and I don't think anyone is, that we shouldn't be equally
accountable to our employees, to our businesses, and the communities around us.
I'm saying that they need to be taken or considered separately because they do
have different resources, because it's just not the same.
Again, I'm not denying the fact that we must make those accommodations when
they are identified, and when solutions are raised.
DR. RINGEN: But then you have to tell us how those should be accommodated
then.
MS. HARRIS: Right.
DR. RINGEN: How those differences should be accommodated.
The last time we met, you had an opportunity to comment on this. As well, I
raised the issue that 80 percent of employers out there don't belong to any
trade associations and don't have the assistance that you all provide your
members.
The question is: What do we do with those 80 percent, also in the absence of
any kind of regulation.
MS. HARRIS: I think that goes into the question of where OSHA's role is in
terms of communication, education, consultation program.
DR. RINGEN: So we'll take into account, and I'm sure that the work group
would welcome more information, especially on the second piece, how do you
accommodate those differences that you have identified? You can think about
this.
Just in answer to that, I know that several small groups met with Mr. Dear in
early June. We did offer the opportunity to do several types of projects,
demonstration projects. We followed up with other communication.
Mr. Dear did indicate that someone from the ergonomics team here within OSHA
would be contacting me at their earliest convenience. That still has not
happened. We have made the offer several times and it has not been taken up.
DR. RINGEN: I haven't heard anybody here that has ruled out the option of
having demonstration programs. In proposing those, you must think that there's a
problem here, otherwise, why would you have demonstration programs?
MS. HARRIS: That's not what I said.
DR. RINGEN: Okay. What did you say?
MS. HARRIS: I said that once you identify that there is a need for that and
then you go and do the data collection or the research on the worksite, at that
point, you seek solutions, not only to identify the problems but also to find
the proper and appropriate solutions, and that's where demonstration projects
can come into play, as well as the discovery process.
That's the conclusion of my remarks.
DR. RINGEN: Thank you.
Who wants to go next, David or Pete?
MR. CHANEY: If it's all right, Mr. Chairman, I'll go next.
DR. RINGEN: Okay. Peter Chaney from the Associated General Contractors.
PETER CHANEY
MR. CHANEY: Thank you, Mr. Chairman and Committee Members.
I don't think it's any big secret that the Associated General Contractors is
opposed to an ergonomics standard or a musculoskeletal injury protection
standard. We base that opposition on the lack of sound scientific data available
to justify such a standard.
Last spring, AGC hired a team of researchers to identify the data that would
support OSHA on this position. They were unable to do so.
Throughout that process, what they did was they looked at the data that was
submitted to the docket after OSHA's advanced notice of Proposed Rulemaking.
They identified the key source that attempts to justify a standard for the
construction industry, as the bibliography that was submitted by the Center to
Protect Workers Rights on Construction, musculoskeletal injuries.
The actual bibliography is commendable. A lot of research, a lot of work went
into that, a lot of time. It was obviously done in the interest of enhancing
worker safety and health.
What I would like to do is share with you AGC's evaluation of the articles in
that bibliography.
In the bibliography, there were 549 articles. Now, there were actually 2
additions to this bibliography. Some of the articles that were included in the
first edition were excluded from the second edition. We were unable to determine
why so we just went ahead and evaluated all of the other articles.
Now, at first glance, it looks like there are 549 articles, but if you go
through the bibliography, you'll see that 65 of them are repeated, some of them
as many as three times. So the actual number is 484 articles.
Now, out of that 484 articles, 355 of them were considered by our researchers
to be not relevant to the issue of musculoskeletal injury, risk related to
construction.
110 of them were considered to be weak, which means they have limitations,
such as small population sizes that were extrapolated to an entire industry.
Highly subjective data, such as postal questionnaires, or lack of control
groups.
Most of these studies were cross sectional studies, which means they had not
control groups, which means you can show no cause and effect relationship.
Basically, it means you can't tell how the injuries occurred, is the bottom
line.
The remaining 19 articles were based on sound science, but of those 19 only 8
of them showed actual risk to a construction worker.
AGC's position is this. We know that there are musculoskeletal problems in
the workplace. We don't know how they're caused, neither does anybody else, near
as we can tell, because we can't find the data.
But if you want me, as a safety and health professional, to go to my 33,000
members and attempt to sway them to take a proactive approach on an ergonomic
standard or a musculoskeletal injury prevention standard, you've got to come up
with some sound, scientific data.
That's my remarks for today, Mr. Chairman. I will be glad to try to answer
questions for you.
Any comments or questions from anybody here?
Bill.
MR. SMITH: That's how they're using the BLS numbers, talks about back strains
and sprains and injuries to construction workers, which is probably the biggest
source of information that we could use; agree?
MR. CHANEY: You're talking about BLS data?
MR. SMITH: Yes.
MR. CHANEY: Yes.
MR. SMITH: Outside of using that, how would your association work with us if
we would go forward in trying to document the scientific data? Would your 33,000
members be willing to document that with us?
MR. CHANEY: Sure. We actually had a safety and health committee in July, and
are very seriously considering doing our own pilot projects.
What we'll do, because none of us are researchers is, we'll hire some
research experts, as we've done, probably the same folks that we used to analyze
the data that was out there and do our own pilot projects and ensure that those
studies are done correctly.
MR. SMITH: So in the midst of all this paperwork reduction, the contractors
are willing to get into more paperwork to document the injuries and illnesses on
their jobsites and whether it was work related and what risk or what task was
being performed?
MR. CHANEY: The contractors wouldn't necessarily be doing that, the
researchers would. We're going to hire these folks to go in and do this for us.
MR. SMITH: So you're still talking about a small group sample out there,
though?
MR. CHANEY: I don't know how small it's going to be. In our committee meeting
we talked about ensuring that we represent the building contractors, the highway
contractors, the heavy industrial contractors, and the municipal utility
contractors. That's the way AGC's membership is broken down.
I don't know, within that, we also talked about doing different group sizes.
Very much like we do our safety statistics tabulation program, we have different
categories within each division, and we thought about doing it that way to see
what the differences were.
The committees made a recommendation. It will go before AGC's Board in
October, and the Board will make a decision about whether or not to proceed.
MR. SMITH: I hope so. Now, can we get a copy of the report from your research
group?
MR. CHANEY: I'm going to have to check and see about that. I shared this
information with the ergonomics team when Barbara Silverstein was here.
At that time, my members told me not to give them the actual document until
such time as OSHA gave us the data that they have stored away someplace that we
haven't seen.
We've tried to get that data. We've begged for it. We've demanded it. We've
gone through Freedom of Information twice and have been unable to get it. I'm
starting to wonder myself whether it really exists.
I will check with my members, because I would encourage them to release this
information to you.
MR. SMITH: Well, only because you ran off some numbers based on your
research, and yet you're not willing to supply us with the background
information to support the numbers.
MR. CHANEY: As the old thing, you show me yours, I show you mine; you first.
MR. SMITH: I'm not OSHA.
[Laughter]
MR. SMITH: But I am sitting on this Advisory Committee.
MR. CHANEY: I understand.
MR. SMITH: I agree with you, but I'm not OSHA, and I'm an Advisory Committee
member, and you're presenting me with information that I'd really like to see,
based on what you're telling me the numbers are, because what you're saying is,
from 485 actual, you reduce them, that only 8 people, scientifically, out of all
of them, had actually what you could consider a work-related injury.
MR. CHANEY: Right. Because of the scientific methodology.
MR. SMITH: Yes.
MS. HARRIS: They're not 8 people, it's 8 articles.
MR. CHANEY: It's the difference between credible and not credible.
MR. SMITH: Correct.
MR. CHANEY: I think, Bill, that ACCSH has enough power to, I believe,
convince OSHA to release that data that they have. They've got a survey stored
someplace stored aware that they have done, and there is construction-specific
data in that.
If ACCSH can have that information, there's a real big problem here. They
have tasked you with making a decision about whether or not to recommend to OSHA
that they proceed with the standard. How can you do that without all of the
information available? I don't know.
MR. SMITH: I'm sorry. I said 8 people, I met articles.
MR. CHANEY: Right.
MR. SMITH: The only thing, in going with the construction lost time injuries
from the Corps of Engineers, who have been doing research since the '30s, they
still show that spring, strains, and twists are 30 percent of the injuries in
construction at the Corps of Engineer facilities. That's big injuries.
It's the biggest one of all the injuries, and that's what this is talking
about -- strains, sprains, musculoskeletal disorders.
MR. CHANEY: I know, and most of which are backs probably, are they not?
MR. SMITH: Right. Exactly.
MR. CHANEY: We've got data that shows that 70 percent of the low back injury
patients have no orthopedic or neurological damage to their back, so there were
some problems here with the data that we do have, and we're just -- we just want
to be able to identify that data, if there really, truly is a problem, and there
may very well be. We don't know, and we don't believe you know.
But if somebody can show this --
MR. SMITH: Peter, in common sense terms, there's no way that we can sit here
and say we don't know.
MR. CHANEY: But you can't --
MR. SMITH: We know, we just don't know how severe it is, but we do know.
There is no way you can say you don't know.
DR. RINGEN: Ana Maria.
MS. OSORIO: I just want to make a couple of comments here.
First of all, I'm an OC-MED physician as well as an epidemiologist,
specializing in occupational epi.
To me, it really bothers me, when any group -- not yours in particular but
any group at all -- tosses out studies or includes them or whatever, and doesn't
want to back it up with some criteria.
I think that way you include or exclude an article based on scientific
principles, has to be addressed.
I think there is nothing secretive about reviewing data. I don't see why
there's a problem. If you truly wanted to help us as a Committee -- and I'm not
part of OSHA, I'm just on the Committee -- your people, your scientists, or
whatever, who reviewed those, I think they would be more than willing to enter
into discussion with us.
I would more than welcome their written comments as to how they critique
these articles, because from my review of the literature, and I haven't read all
400-whatever but I've read quite a bit because I've done studies in the area,
there are very sound scientifically well done studies which show there's an
association with certain kinds of risk factors.
Now, the data that Bill is referring to, I think there's no question in most
people's minds, that the construction industry has the highest rate of injuries,
of fatalities from these kind of falls that's contained within that standard.
Secondly, if you're talking just dollars and cents, the biggest cost to
workers comp are these kind of accidents or injuries, so that you can't dispel
that it's a problem, and to me it's sort of like yes, yes, no, no.
If you have some other additional information, if you have a different
perspective of what's out there in the literature that I know pretty well, I
think that you would be more than happy to enter into a discussion with us and
get your scientific people to come and talk with us about this.
I just want to verify what Bill has said, that I don't see why this has to be
a "show me yours, show you mine" kind of thing.
MR. CHANEY: I agree with you. I personally would like to release the study to
you today. It's not my decision to make. Hopefully, the time will come when I
can do that. Certainly, there will be a time for debate on this. I didn't come
here to engage in a debate today, I just wanted to come and share some
information with you.
There are other articles out there as well. In fact, I'm going to get my
assistant to pass those out to the Committee now. Carl, if you would, please.
The literature is showing now that there is a real strong correlation between
low job satisfaction and workers compensation claims, and there's a whole lot of
literature out there, and it's coming more and more and more. These studies are
based on very sound scientific studies.
I'm going to have him past these out. You all can look at these at your
leisure in the future.
MS. HARRIS: Again, I just wanted --
MR. CHANEY: The other point I wanted to make is the team of researchers that
looked at this, there were two physicians, one ergonomist, and one safety and
health professional. They were professionals and they are researchers and they
do also, as you do, know what they're doing.
MS. OSORIO: I just want to make one other comment, and that is that, I think
it's not a secret that you can sort of buy a scientist to review literature with
a certain bias, and that's another reason why I think a blanket statement,
saying X number of articles are no good, to me, means nothing unless I see the
facts by which they're deriving that conclusion.
I would just want to put a cautionary note on what we're hearing, that we're
sort of being told what the end of the story is without being told what the
story is, and it's against nothing but you, personally, but in general I'm a
scientist and have to be skeptical, unless I'm given some facts to work with
you.
MR. CHANEY: That's okay. I want you to know, if you haven't figure out yet, I
did that very deliberately because we're trying to get this information from
OSHA, and if that's what we have to do to get it, then that's what we'll do.
I agree, you all need to have that data, and I would like to give it to you.
DR. RINGEN: I think you were referring to the -- I'm sorry.
MR. RHOTEN: That's the only issue I wanted to inquire about. OSHA, think you
raised that three or four times that you can't get some kind of information from
OSHA. I guess I would like -- we've got a representative from OSHA -- to be
clear what that information is and deal with there's some information you can't
get. What is it? What is that information?
MR. CHANEY: Now, listen, I don't know all the details of this. I just know
that the data is there. Apparently there was a survey done. There was a
telephone survey done quite some time ago.
This isn't the only data that the ergonomics team told us that they had, but
this is one bit of data, one document that they have, that's the results of the
survey that they did. I know a portion of that was construction-specific.
That's all I know about it. I just know that the data is there and nobody is
releasing it.
MR. RHOTEN: Well, what I would like for you to do is identify what that is,
and I think this Board can ask OSHA for that and make if available, try to make
it available. Nobody here wants to have something that's not available to you,
I'm sure.
You have to maybe identify exactly what that is that they're keeping from
you. If you're talking about a phone survey, I don't know how to approach them
and ask them about a particular phone survey unless you can identify exactly
what is.
MR. CHANEY: That won't be hard to do.
MR. RHOTEN: Are you putting it in writing from OSHA?
MR. CHANEY: Oh, yes. Oh, we've gone through Freedom of Information twice.
We've asked them, we've begged them, we've gone on hands and knees. We've
demanded. We've done everything we could do.
MR. RHOTEN: Have they answered?
MR. CHANEY: No. No response. We've gone right from Joe Dear to get this, and
they're not denying that they have it, they're just not releasing it.
MS. HARRIS: If I could make a point; and that is, perhaps, Bill or someone
else on the Committee who is willing to ask OSHA for that information, but also
to ask where that ergonomic team is; who's on it, who's running it, where they
are right now.
I think none of those questions have been answered today, at least.
DR. RINGEN: I think the work group has requested the information that you're
talking about. I don't know what it is.
One comment: I believe the report that you referred to that you prepared was
a critique of something that came out of our workplace, the bibliography that we
put together at the Center. I think, given that you were kind enough to review
it, we've asked for a copy of that review from you a couple of times, and I
don't think we've received it either.
So we don't know how to improve the bibliography that we put out, given that
we don't have the comments. I think we've looked over it again, and we don't
come to the same conclusions that you come to, so it would be very helpful.
Any other comments?
[No response.]
Okay. David DeLorenzo.
DAVID DeLORENZO
MR. DeLORENZO: Thank you. First of all, I wanted to address your request that
we stick to the substance of the standard.
I'm sitting here looking at the final draft copy, and it's dated July 7th.
This was released
August 4th. I was out of the office August 4th, so basically I've had about
one day to review this, so it's going to be virtually impossible for any of the
colleagues to digest any of the substance and really give you any positive
feedback on that.
I would also like to address Stu's comment about, everybody was free to
volunteer for this work group. Perhaps your invitation should be made a little
more public and a little more widespread, because I was never aware that there
was an opportunity to be on that work group. I don't know if any of my
colleagues were aware of that.
That's all I'll say about the process for that. I am not going to be able to
talk a lot on the substance of the standard.
I would like to talk a little bit about musculoskeletal disorders,
ergonomics, as we say.
Currently, I don't who is aware of what, but industry is doing a lot of work
o ergonomics, and we should be looking at some of those studies.
It might not necessarily be called ergonomics or musculoskeletal disorder
programs but insurance are driving industry to look at certain tasks through job
safety analysis, through their comprehensive safety and health programs.
Safety and health programs are something almost every contractors, small or
large, has now, and part of that is hazard evaluation. You know they're going to
be looking at these types of hazards through those programs.
Safe lifting techniques that NIOSH has developed. A lot of people are aware
of that stuff, and ergonomics, musculoskeletal disorders, those are words that
people kind of cringe when they're hear, but they're already doing a lot of the
stuff that you're requiring them to do or you're looking at them to do.
It's just not necessarily called ergonomics or musculoskeletal disorders.
In fact, through SMACNA, we have been looking into several projects.
We currently have a small safety and health work group where we're working
with the SMWIA; our SMOI trustees, which is our Occupational Health Institute,
our NTF, looking at certain strains, certain disorders within our industry
because we're going to be unique amongst the construction groups, as we have a
manufacturing side, as well as the construction side.
So we do have guys in our fabrication shop who are doing the same job
everyday, and that's easy to look at. Basically, we can look at work practices.
That's what the main thing is. I don't know whether this standard is going to
change the way somebody moves just because that's the way they've always done
it.
We are currently looking at it, and we realize construction is going to be a
lot harder to work with than fabrication, and we are doing some work on that
side. We are looking into what type of problems are out there.
We do have an insurance program. We work closely with CNA insurance, and some
other insurance, where we're looking at data.
Tom Soles is group director of our insurance program, and he's going to speak
a little bit about some of the data that we've collected over 15 years, and what
it has shown, some of the problems with that.
Can we go ahead and refer to you, Tom.
TOM SOLES
MR. SOLES: Thanks, David.
Mr. Chairman, Committee Members, I just wanted to comment a little bit about
what SMACNA has done as far as collecting information and evaluating
information, because I think, you know, we get down to the issue, are all of the
facts in on this musculoskeletal disorder issue, and if they're in, are we
evaluating them in the correct way so we can move ahead from what Mr. Jones
suggested was a dialogue or a discourse on the issue, and then to some kind of a
proposed regulation and whether that regulation is at all necessary at this
time.
David alluded to we have a sponsored plan, SMACNA, the Sheet Metal and Air
Conditioning Contractors National Association. We represent about 4500
contributing contractors around the country.
We've had a sponsored property casualty program, which includes worker's comp
program, for about 15 years. Not surprisingly, one of the leading causes of
injury or categories of injury, is musculoskeletal disorders. When you look at
that on the service, in terms of frequency, we bump into this 30 percent, that
percentage that people have thrown around here at the table.
What does that mean. We have begun the process of going back and looking at
that data as specifically as we can.
What we're finding is that the nature of the injury or the cause of the
injury are not related to cumulative kind of processes that, in our minds, at
least, should be classified as musculoskeletal disorders.
A number of these injuries are the result of falls or slips or trips or
housekeeping type things. I don't know what that percent is, to be quite frank
with you right now, whether it's going to be a small percent or a large percent.
All I'm suggesting is that there's a lot of information, or people are
alluding to a lot of information being thrown around here, and I think you're
leaping to a conclusion stage that says, you know, it's obvious; we need a
national standard to get this thing fixed.
David mentioned that we, as a national association, are doing a number of
things on our own now that hopefully are going to help our member contractors
out of this dilemma, that dilemma being -- and their employees -- the dilemma
being these kind of injuries.
One of the parts of that analysis or process is is finding out what the real
cause is.
My point was just to share that with you today. I guess when we look at this
process right now, we would suggest that, you know, there were a bunch of
numbers being thrown around and studies and proposals, et cetera, but we think
we've taken a leap to a proposal stage for a regulation, when maybe we ought to
slow down a little bit and see what we've really got out there.
Are there any questions, Mr. Chairman?
DR. RINGEN: Bill.
MR. SMITH: Tom, you and I know each other for some time now, but the process
is still going to be slow, no doubt about it. I mean, that's why what Steve was
saying, we're just really in the beginning stage of this process.
But you are basically saying what we have said. I mean, there is a problem
out there, just based on the information that you have looked at over the past
few years.
MR. DeLORENZO: Well, there's some kind of problem, to what extent; there's a
problem with --
MR. SMITH: And that's what I was talking to Pete about. We know there's a
problem. We just don't know how severe it is, but we definitely know there's a
problem, so we've definitely got to go forward.
MR. DeLORENZO: The numbers we hear, it's the most severe problem out there,
and you have the numbers elevated to make it look like it's an epidemic problem,
when it may not be.
MR. SMITH: What we have to look at it is just like Knut talking about over in
Europe sometime, is that you, like me, has probably worked on your house. Have
you carried 8-foot sheets of sheetrock?
When you cut them in have, is it a whole lot better and is it easier to
handle and work around?
MR. SOLES: I get the kids to carry them so I don't know.
MR. SMITH: And that's good, but I'm saying that's some of the processes that
we may have to look at, is that --
MR. SOLES: No, you're right.
MR. SMITH: -- nationally, we may have to have a standard that says that,
instead of 80-pound bags delivered at the jobsite, for an individual to work
with, they might 40 or 50 pound bags delivered, and that's a national standard.
MR. SOLES: But that's not a construction standard, is it? I mean, you're
talking about manufacturers or producers.
MR. SMITH: Manufacturers are going to have to be included in it, because OSHA
can do that because OSHA has done that in steel erection by including the
fabricators of the products into the process for a national construction
standard for steel erection. So it can be done.
MR. SOLES: I think the place to start, though, is that process or that
segment of the issue is with the manufacturer.
I think the sketch showed a jackhammer, and there's some very obviously kind
of equipment. We're looking at shears, and we have prototypes being developed
for ergonomically designed sheers because of frequency of carpal tunnel.
But that's a very narrow type of an issue, that the response, what I'm seeing
here in this proposal, you know, I don't see that response addressing that
specifically.
DR. RINGEN: Steve.
MR. BURKHAMMER: David, on your comment about the date, the July 7th date was
on it because that was the date of the last work group of the Committee, and
between July 7th and August 4th was when all the different segments of the work
group were rewriting their particular section.
I could have changed the date to October 4th, but I left it at the date of
the Committee meeting; that's why the July 7th date.
MR. SOLES: Yes. I still had wondered when this draft was actually finished,
and what the earliest date we could have had it was.
MR. SMITH: It was finished on the first. My secretary compiled the documents,
put the tabs in. They were Federal Expressed to the Committee on the 3rd, or the
2nd -- one or the other; I was out of town; I think you all got them on the 2nd
or 3rd, something like that. Then they were distributed to you all.
I had talked to Claudia, I think, the first or second, and told her go ahead
and get them out to the people, because as she got hers, and we tried to get
them out Federal Expressed to everybody.
DR. RINGEN: Keep in mind this is a volunteer activity, essentially. It's the
people around this table who do these things. In this case, Stu had to use his
own time, his own resources, his secretary, his Xerox machine, and all that kind
of stuff to put it together.
MR. DeLORENZO: I understand that. I'd be willing to send a courier over to
pick it up any time, on an earlier date, if it's ready.
MR. SMITH: No, the distribution isn't a problem.
DR. RINGEN: And the production. It's a production problem, not a distribution
problem.
MR. SMITH: And on that comment, because me and Pete work together, and Pete
knows I'm fairly shooting from hip level all the time, and it's never really a
universal, not an issue with me, it's a fact of what we're doing.
You've been in several meetings -- several, several meetings -- with this
Committee and had the opportunity to approach any of us to say, can I help, can
I participate in that, can I volunteer to do something, to work towards getting
to a resolution, and it never came up.
That's anybody else out there that says that it was a closed door policy,
because it never is, and it should never be on this Committee.
MR. SOLES: I'm aware of that now, and I will not keep my mouth shut again.
[Laughter]
DR. RINGEN: I'd like offer, David, you know, anybody that asked to be on the
group I took. I didn't say, I don't like you and you can't be on there; gee,
you're looking, I only want good looking people. We took anybody.
MR. SOLES: That's fine.
[Laughter]
DR. RINGEN: Claudia.
MS. HARRIS: I just had one point about the date, and that is, it's not just
the date of the release of this final document that we all have in front of us
today. It's the document as it proceeded through the work group, which was meant
to be kept internal, which was not kept internal through that process.
That also brings a larger point, and that is, it's very difficult to work
with this committee in general, because the documents and the paper that come
out of this committee are very difficult to obtain. Copies of the information
which the Committee members have access to, are not always made available to the
public.
Most of them are not made available to the public prior to the meetings. It's
very difficult, as David said, to prepare to present a discussion when you have
four hours notice that comments are going to be accepted.
You call this a open participatory process. It isn't. No matter how much some
of us want to participate, the timing and the access to information, documents,
precludes us from doing that in a responsible manner. Therefore, rather than
participate half-heartedly or with false information, some of us elect not to
participate, and that's unfortunate, because with timing and proper preparation,
I think that all of us could work towards a common goal, and that is increase
safety and health.
DR. RINGEN: I think that's an easy criticism to make --
MS. HARRIS: Sure.
DR. RINGEN: -- and I don't take it very easily.
Stu.
MR. BURKHAMMER: You know, Claudia, when we worked on the work group -- and
you were as diligent and hard-working as anybody, and we really appreciate that
-- I thought we were very fair and very honest in the work group of getting the
material out to the work group people.
MS. HARRIS: Yes.
MR. BURKHAMMER: We tried to get it out in advance. Sometimes the people would
bring stuff to the work group that we would look at or review that day.
But when you're doing -- and I know you can appreciate this because you wrote
a section of this for us -- when you have five or six people branching out with
parts of something of a whole and then you're trying to bring the whole back
together, like on
July 7th, when we brought the hole back together, it's natural that you
didn't see five or six sections, and I didn't see five or six sections until
that day.
By not having the ability, because we all have other jobs, to have a work
group meeting a week or a work group meeting every other week so we can flow the
stuff and everybody is fully knowledgeable at all times, we had basically three
work group meetings over a day and a half or two days.
We tried, as in those meetings, as best we could to cover all of the
information we could. But you're right; it is difficult. Again, appreciate, we
tried to do the best we can with what we had, and I know you did.
MS. HARRIS: My comments were not necessarily specific to this work group, and
in fact as my first experience with a work group, I thought that it was fairly
positive.
I think that the comments are related to this Committee, in general, and is
exemplified by my experience with that work group.
Having access to documents and information is important to us, and we do not
have it.
DR. RINGEN: Keep in mind that we don't do rulemaking.
VOICE: The documents are placed in the docket office, and they're available
there.
MS. HARRIS: After the meeting. Correct.
The information by which this Committee works from today and tomorrow is not
available to us within the industry, therefore, we cannot prepare to participate
in this process.
VOICE: For this meeting in particular, I can tell you this material was put
together yesterday, and it was on the table this morning.
MS. HARRIS: Right. Well, first of all, how can this Committee work on
information that they got 10 minutes prior to the meeting. I mean, you can't
even begin to skim the information and prepare for the meeting.
DR. RINGEN: I think this is outside of the bounds of what we're talking
about. I don't disagree with you, but the Committee works over a series of
meetings.
Now, let me just say this, there are an equal number of employer
representatives and employee representatives on this Committee. It's not like on
group is favored over the other, and the employer community is certainly
represented here.
You may think it's represented inadequately, because every trade association
in the country is not represented here.
MS. HARRIS: No, that's not true. However, there are two vacancies on the --
or one, at least now, for the employer, which has been vacant for the past two
meetings that I know of, and possibly three.
DR. RINGEN: Same thing with an employee site.
MS. HARRIS: Well --
DR. RINGEN: They're equally balanced. Or unbalanced.
MS. HARRIS: Let's not get into this. The point is that the information on
this document and the ergonomics proposal was not accessible to the industry,
and therefore, its participation is not, probably, what it could be.
DR. RINGEN: But you now have the document, and you should make whatever
detailed comments you have on it and send it to Stu in writing, and we welcome
all the comments that we can get.
I know Stu, because he has to deal with it, but that would be very helpful.
This isn't the final thing yet.
MS. HARRIS: How do you want us to comment on something which we don't
necessarily believe is the starting point?
DR. RINGEN: Well, you start out with that, I believe.
MR. SMITH: I think that's what we're doing today.
DR. RINGEN: Yes.
MR. SMITH: I mean, we don't necessarily believe the OSHA document that you're
basing this document on, is a starting point.
MS. HARRIS: We're starting 4 months later than all of you because of the
access issue, so we are starting today.
DR. RINGEN: This has been going on for four months, and you've heard it
reported on at these meetings.
MS. OSORIO: I just want to make a comment that we're only here for a day and
a half, and I respect the fact that people have problems with the process and
all that, but from my vantage point, I would like to get back to the topic at
hand.
I think any other comments or suggestions, if I may say so, about the
process, could be done in writing, or there may be a separate medium among
people who need to, but I think for the people on this Advisory Committee, we'd
like to hear, because we still have another panel, exactly what's --
DR. RINGEN: Two panels more.
MS. OSORIO: Oh, I'm sorry. What exactly are some of the problems, in general,
if not with this document. And also, if I can emphasize, I'd like to hear maybe
some suggestions and remedies that are proposed, too, and I would sort of like
to get back to that topic, if that's okay.
DR. RINGEN: I think that's where we began and we didn't have time to digest
it and offer any suggestions to this document.
MS. OSORIO: Right. But I think this is one of a series of meetings, and
probably the next one we may have some more time to talk about it. Also,
whatever you put in writing to Holly, we get too, and I think writing, in some
instances, is actually better, I can sort of digest it better myself,
personally.
So I don't think this is like a final stop, it's a whole continuum. I'm not
saying the process can't be made better, but since you have all of us here,
let's get back to the more meatier topics, if we can.
DR. RINGEN: And we welcome the fact that you are finding studies, and we will
be glad to provide review of the proposals for those studies when you have them
prepared.
So, thank you very much.
PANEL TWO
DR. RINGEN: Next panel, George Kennedy, Director of Safety, National Utility
Contractors Association;
Charles Maresca, Manager of Federal Regulations for Associated Builders and
Contractors, and,
Regina Solomon, National Association of Home Builders.
Do you have a preference for the order that we are going to go in?
MR. KENNEDY: I guess it doesn't matter to us. We're all going to get to say
our price.
DR. RINGEN: We'll start with Mr. Kennedy.
MR. KENNEDY
MR. KENNEDY: The members of the National Utilities Contractors Association
are opposed to the idea of an ergonomic standard. We think it's currently
camouflaged by the name, Musculoskeletal Disorders and Construction.
NUCA members are concerned that this rule will hold employers responsible for
all of the aches and pains of every worker. NUCA opposes the concept of an
ergonomic standard, based on the fact that most construction companies,
especially small- and medium-sized companies, would find it impossible to comply
with this standard.
As proposed, the standard does not take into consideration that workers of
different ages, naturally develop different aches, pains, and physical
disorders.
Musculoskeletal disorders can be attributed to many cumulative factors,
including but not limited to the activities of daily living, generic makeup,
physical conditioning, diet, recreational activities, and aging, which are all
beyond the control of the average employer, of any employer.
All of these factors and others contribute to the wear and tear on the body's
muscles and joints. The fact that no valid, scientific evidence proves that work
is the only factor that causes musculoskeletal disorders, is reason enough not
to proceed with an MSD standard in construction.
Even the medical and scientific communities have not arrived at a consensus
on ergonomics and MSD.
Therefore, we suggest that OSHA does not have enough scientific evidence to
demonstrate the need for this type of standard for our industry. This standard,
as proposed, would dramatically increase worker's compensation's costs
initially, which will undoubtedly have to be passed onto the owner and the
public.
Some workers will be filing claims for aches and pains that could be a result
of their outside activities. We are not saying that they're necessarily
fraudulent.
As an employer, wouldn't you be concerned if you hired somebody that was a
bungee jumper or a rock climber?
If you think this is an exaggerated example, how about a golfer, or a tennis
player, or a racquet ball player or a bicycle rider, a motorcycle rider, or any
of the other activities that all these employees are involved in outside of
their work, all of which affect their musculoskeletal disorders.
Try evaluating some of these activities, utilizing your risk factor checklist
that's included in this proposed draft.
The time elements in the draft are speculative. They're chosen at random. We
don't know where you got the 2 hours -- 2 to 4 hours, 4 to 6 hours, 6 to 8
hours.
We'd like to see the scientific evidence that shows that these particular
time frames do, in fact, affect the worker.
Let's not forget that the contractors have to evaluate every job
classification based on its Propose Rule. Not only will they have to evaluate a
job classification but they will have to evaluate each and every job task
performed by a worker.
If you took a simple job, whether it be a carpenter or a pipe layer, an
electrician, and broke it down into the many, many tasks that each worker
performed, you are talking about a small employer with probably no safety
director or a part-time safety director -- and I'm talking about the small and
medium sized companies; each of them are going to have to determine the pinch
grip, based on two pounds, how are they going to measure that; how much
vibration is too much.
There are many different positions involved in all of these different tasks,
pushing and pulling forces, number of repetitive motions per minute; time
performing each motion, and many other factors.
The one thing that may offset the evaluation is the time factors. Again, we
questioned those.
We remind the Committee that the medical and scientific community does not
agree on the causes of
MSD -- musculoskeletal disorders -- and unless OSHA can show that the risk
factors have been scientifically derived, we suggest that they are skewed.
The record keeping requirements proposed will result in considerable increase
and useless paperwork. The paperwork requirements included in this standard are
going to serve to make HAZMAT communication look like a dream come true.
The cost to employers for sending employees to health care providers will be
enormous. Keep in mind that these medical evaluations are not covered by
insurance, and will have to be passed onto the general public.
Nobody has actually estimated what the average medical review cost is. At
least we haven't seen any figures on this from this committee.
The extent of the review and the test will be left up to the health care
provider; therefore, the costs will vary considerably.
In addition, how could employers ensure that medical assessments can be
provided within five days? Sometimes it takes a week just to get a doctor's
appointment. And good luck trying to get a physician to come to your jobsite to
evaluate the conditions.
Even health care providers disagree on the issue related to musculoskeletal
disorders, and many physicians have absolutely no training in the treatment and
evaluation of MSD.
We contend that there are not enough well-trained, qualified physicians to
handle the reviews, especially in Rural America. Sending someone to a seminar
will not qualify them to identify, evaluate, and control the so-called hazards.
You have Ana Marie; she's qualified in this area, but it's hard to find
people like her. There's not enough of them around these days.
Most contractors will have to hire an ergonomist or somebody like Ana to
perform the evaluation task and to recommend controls. It's not going to be an
easy task for them to do. Again, we don't believe there are enough people around
that are qualified to do this.
Even the ergonomics community and their certified ergonomists don't have
enough people, and they're not opening their doors very much to most of us in
the profession.
Safety professionals, like myself, can't even get in unless you have a
master's degree. They can't even qualify, no matter how many years. It's a lot
of work.
On behalf of suppliers and the manufacturing members, I would like to point
out the liability that this standard will create for them. Apparently, there has
been no consideration or evaluation in reference to repackaging and redesign of
packaging and equipment. We can't make 2 x 4s shorter and still put up an 8-foot
wall.
Yes, we could so something about sheetrock and things like that.
Manufacturers are already addressing these issues. Tool manufacturers are
already addressing the issues of egoistically designed tools. Why do we need a
standard to do this?
I would like to remind the Committee, that we have, like the rest of my
colleagues, have had very little time to thoroughly review this proposal, and we
don't like that idea; we need to have time to take it to our members. I haven't
had a chance to discuss it with any of them because I just got my hands on it.
Although I have addressed some of the problems that exist in this draft, I
repeat that NUCA members are adamantly opposed to an ergonomic standard no
matter how you camouflage it or what you call it.
Just following up to that last statement, to remind you that ergonomics is a
science of adopting work or working conditions to the worker. Musculoskeletal
disorders are a part of the ergonomic issue.
No matter what you call this standard, it's an ergonomic standard. That's the
way we feel, and I thank that the Committee for allowing me to talk.
Any questions?
DR. RINGEN: Thank you. Any questions, comments?
MR. SMITH: I've just got a couple, George.
MR. KENNEDY: Go for it.
MR. SMITH: First thing, you scared me with that list because everything you
mentioned I do -- bungee jumping, riding a motorcycle, and golfing and bowling.
[Laughter]
MR. KENNEDY: You're an MSD nightmare.
MR. SMITH: That's what it sounds like. That's what it sounds like. I guess
the reverse is just go to work and go home and go to bed, because evidently
they're all good social issues that we all enjoy doing.
MR. KENNEDY: Right. Simple aerobics.
MR. SMITH: The second part is, if you look at the scope -- maybe you didn't
have time, but if you look at the scope -- if it's outside the scope of what
this regulation would entail, then it means that you're not in the regulation at
all.
MR. KENNEDY: Well, I don't want to read the entire scope but myself and
several of my colleagues --
MR. SMITH: There's only A, B, C, and D in the scope.
MR. KENNEDY: Yes, and if you read them, almost every job is applied.
MR. SMITH: so performance of the same motion every few seconds, if you're not
doing that, then you're outside of that.
MR. KENNEDY: Yes, but keep in mind that it's A, B, C, or D. It's any of these
risk factors. It doesn't say it includes all of these risk factors.
MR. SMITH: Right. Just like you said --
MR. KENNEDY: So if the guy isn't doing it every 10 seconds, he's lifting
something now and then, regularly, routinely. He's bending and lifting things
from below the knew.
MR. SMITH: Right. Use of vibrating tools, more than likely you're going to
find that longer than 2 hours a day?
MR. KENNEDY: Most likely. Most industries and almost every worker.
MR. SMITH: So you're going to have to look at risk factor there, which is
reasonable.
MR. KENNEDY: Right.
MR. SMITH: If the fact is you're not doing the same exact motion every few
seconds, which are probably not in construction, but if you are, it's reasonable
to assume that there are some risks that you should evaluate. Correct?
MR. KENNEDY: Yes.
MR. SMITH: A fixed, awkward work position, which is twisted or bent overhead.
All of the are risk factors that you should look at, too.
MR. KENNEDY: Yes.
MR. SMITH: So what you're saying is, from what I hear you saying, if we look
at the scope, you agree that any of them in the scope are risk factors, but yet
nobody wants to address them?
MR. KENNEDY: No, I didn't say that. What I say is we don't think there's a
need for this standard. These risk factors are possible risk factors that have
not been proven; not thoroughly, not scientifically in all industry, and they
haven't found a causal relationship between the difference between a worker who
likes to bungee jump, bicycle ride, rock climb, and somebody like yourself, and
the worker, and his specific tasks on the job.
These tasks also vary so much that how is a contractor, and especially the
small- to medium-sized contractor, who does not have an ergonomics on staff, or
an industrial nurse who is trained in those, how are they going to identify and
evaluate each and every task.
My members are tight [inaudible]. They must have 50 different tasks that they
perform.
MR. SMITH: What I'm saying is, I don't think you have to.
MR. KENNEDY: You have to.
MR. SMITH: Let's look at the electrician.
MR. KENNEDY: Fine.
MR. SMITH: He's doing a bunch of different tasks, but if he's pushing wire,
he may not actually be doing all of these tasks at once, or he may not even fall
into any of them, because he's not doing it for two hours.
MR. KENNEDY: But that may be today, what about tomorrow or the next day,
where he does it 9 hours? Do I have to evaluate him?
MR. SMITH: But what I'm also saying is we know that there's fraud, because we
know a guy who hurts himself -- every guy, no matter where he's at -- but
individuals who hurt themselves at home on a weekend probably tries to drag
themselves to work Monday.
MR. KENNEDY: It happens.
MR. SMITH: We know that happens.
MR. KENNEDY: We know it happens.
MR. SMITH: But we also know that there's a very, very big risk of working in
construction on a job site, lifting a lot of weight and moving your body up and
down stairways and ladders and everything else; with that weight on your body.
We also know that for a fact.
What we're saying is we have to start somewhere to address that side of it
too. And that's what this proposal is all about. It may not be perfect but it's
bringing guys like yourself to the table, and that's what the process is.
We've got the far left which might be this standard, and we've got the far
right who are not going to do anything. They don't want to change nothing
they're doing in the workplace. But that brings us to the table where we're at
today.
And I guess my response back to you is -- if the utility contractors are flat
out against this document, that's okay. And like Steven said, "We're in the
process of going forward."
But the utility contractors should definitely, if it's not you, somebody
participate from this day forward as to where we're going to end up. Because we
all know that there are definite risk factors out there in construction when it
deals with material handling, flat out.
If it adds up being that the standard says that the manufacturers would cut
them in half, then that's what it ends up being.
Because then it's level price for all you guys, which currently is not where
it's at. When you say there's ergonomically designed products on the market,
such as hammers that have less vibrating mechanisms because they're cushioned.
That's great. But when that hammer costs $800.00 and you go to purchase it,
and the other hammer, the old hammer is $400.00, you're going to buy the old
hammer, and you're going to forget about the risk factor to the individual.
Now, it's mandated that that was the standard from here on out, that all new
purchases will be this ergonomically designed tool, then you're all back on a
level playing field again when you go to buy a product.
MR. KENNEDY: Well, I don't agree with that, because the manufacturers are
going to phase out a lot of those tools that are not ergonomically designed with
time. It's going to take time.
We as a group shouldn't be making a standard to regulate an industry based on
risk factors that we're not 100% sure of. We know there are some risks. Some of
these risk factors can affect a worker.
But we need to evaluate the entire operations.
MR. SMITH: That's fine. But when we do then we've got to stop -- everybody
has to stop and go forward with positive needs; not negative.
VOICE: I've got cranes in the marketplace right now that are still running
that were built back in the forties. So, are you going to replace them all if
they pass this standard.
VOICE: No, I'm saying they're not.
MR. KENNEDY: I would just like to say that say that -- I'd like to answer
some of his questions; I'd like to respond if I may.
MR. SMITH: I thought you did, go ahead.
MR. KENNEDY: Well, a couple of things you mentioned -- you brought up this
risk factor. You brought up what we were saying about the identification of the
hazards.
You're saying we need to move forward, but we'd be better off moving with a
guideline to help educate that industry, and educate employers, rather than to
regulate them.
They need to be regulated, and I don't mean this as an insult to the
industry. But many contractors can't even spell ergonomics, let alone know what
it is.
Musculoskeletal disorders, try spelling it when you don't think about it.
DR. RINGEN: George, you're saying that what is being done here is not
unreasonable it was formulated as guidelines, or as recommendations to the
industry, as opposed to being --
MR. KENNEDY: I'm going to be careful on that. As a guideline or direction
we're working with the industry. Because lots of guidelines turn out to become -- if used by OSHA utilizing the general duty clause, and I fear
guidelines in some ways.
But we do need to go out and look more at the industry. Pete Chaney brought
up some examples of the statistics that he looked at. He disagrees with them.
The committee apparently agrees -- thinks that those statistics are okay.
We're obviously in disagreement. But we need to look at these things, and we
need to go out to the industry and start educating the industry first, so that
they can come back and comment.
We can't go to our members and tell them about ergonomics and what's going on
unless we educate them, and we're working on that now. But it takes time.
But a regulation that's going to bury your contractor, or put a small
contractor out of business isn't going to solve the problem.
DR. RINGEN: Let me just ask you, finally, that questions that I asked of
others. "Who's educating the 80% of employers out there who don't belong to
a trade association?"
MR. KENNEDY: Well, that's beyond our control, obviously. So, we can't answer
that. But that's still something that has to -- but where's OSHA in that case?
DR. RINGEN: Well, I think that's why they asked us to --
MR. KENNEDY: And I don't mean regulation. Where's OSHA in training in that
case? We're doing our part at the 20 percent; we're hitting them hard.
DR. RINGEN: And would OSHA's consultation services then regulate to
reinforcement?
MS. SOLOMON: That isn't true.
MR. SMITH: What I'm saying is that not only 80% use them.
MS. SOLOMON: No. Not enough of them.
MR. SMITH: Not enough of what?
MS. SOLOMON: Consultants throughout the country.
MR. SMITH: I tell you, if you look at this though, just as a training
mechanism; not as a regulation, as a mechanism to advise and make aware, and to
start the process -- I mean, it can work that way too.
MR. KENNEDY: Well, you'd better start by eliminating all the medical
requirements. We don't have the people to do it. And are there enough people
around to really do all these evaluations. I mean, we're talking millions.
MS. OSORIO: Let me just take this -- talk about lead -- because I think there
are some parallels. And that is that the lead standard -- well it was applied to
construction and all this. And so what happened?
You know, there aren't enough people to know as much as your physician that
went through residency training.
What we do in California -- besides OSHA there's health departments -- there
are other people and stuff. And we actually talk people through, and these could
be nurse practitioners under the distant supervision of a doc. There's also a
lot of paramedical people that could help run some of these lead programs and
stuff.
And again, I just want to emphasize that -- I think what was said by somebody
here -- this is a step, it may be a baby step, or whatever. But what it's doing
in my opinion, my opinion not the whole advisory, is:
(A) Pointing out that there is a problem; to what degree whether it's 50
percent, you know risk factors in the job, or whether it's 60 percent, these are
preventable kinds of conditions.
And so, to every extent possible, we should educate both employers, employees
and the medical community about what the right things are to do, and to have
some referral centers that they can go to, with hopefully no cost or little cost
to the small guy out there -- small woman out there. But I think that's just one
step.
The second one is, you know, whether it's guideline, whether it's a standard,
you know.
There's some problem out there, and so what is the best way to adapt it in
the construction as opposed to the assembly line process?
And that's the kind of stuff we're trying to hear right now. But I don't
think you have to have every single doc who does some of the things in the
medical recommendation that has to be a specialist.
I think these things you can treat, and I think nurses can do a lot of this
stuff too.
I'm just addressing now the medical component. You know, this isn't rocket
science once you're kind of trained. And one thing we're doing with the lead --
because it's been around for a long time. It's guidelines are out there kind of
kook bookie ways to look at it, from a medical perspective I'm talking about.
And perhaps, again this isn't my area, but with safety engineers and stuff,
some sort of similar guidelines and, you know, general step-by-step assessment
tools can be brought into play for other aspects, whether it's this exact
standard or something that eventually evolves down the line.
So I think, again, it's not black or white. I think there's a middle ground
where it's not so overwhelming.
But I totally agree with one thing that I think you said, and that is that is
to me a standard guideline that doesn't have the resource in terms of
distributing information and consultation of people that need it, doesn't have
any merit. Because, you're just putting something into circulation without any
meat to it.
And so, I totally agree with the aspect of training and beefing up better
ways to get the information out there. And I would say that's for all problems
in the construction industry that deal with health and safety, not just ergo or
musculoskeletal.
MR. KENNEDY: Well, I agree. We need to educate before we regulate. And right
now we don't have the education out there. People are not aware.
And OSHA could do a lot to educate the people in the field on how to control
the problems. I mean, go out and start evaluating some of the jobs; come out to
some of our job sites, without an enforcement hat on, and start evaluating some
of our jobs and then passing that information around and sharing and helping
people to understand what they're doing.
You come up with a regulation like this -- you're not going to have
compliance. The small contractor just doesn't have the people and you can
educate them and talk to them all you want, but what happens when the guy
changes?
What if that safety director isn't a trained safety director, but he got the
hat, what if he leaves? You know, the next guy has to be educated. And there are
still not enough people like yourself who have this knowledge to help us -- in
this industry yet.
And I think it's still too far away from any kind of a standard..
DR. RINGEN: Al?
MR. MEIER: Al Meier. I'd like to reinforce what Anna was saying. It isn't
really rocket science.
The workers themselves can identify, and it's been proven if you show them
and say, "Look for excessive lifting and repetitive motions, awkward
positions, heavy lifts, extreme vibrations, cold temperature extremes."
Those things are easily identified, most of them.
You'd think that the worker's comp premiums would educate you. You shouldn't
need much prodding. To me this is a win, win. Ergonomics -- the worker has a
better place to work and he stays healthy and the jobs are open to more people
if you can eliminate the things that hurt people. And I think you'd want to do
that.
If anything costs an employer as much as these ergonomic injuries, you'd have
a committee on it and want it done yesterday. And for some reason when you try
to rid of the unpleasantries in the job that cause injuries you balk and fight
and buck in the harness. And to me, I'm going off the committee, so I have
nothing to gain or lose by saying this. But you'd think you'd welcome it and
encourage it and insist that we do something to bring these horrendous costs
down for you.
It's a win, win. And most of this costs very little. It can be done
administratively. There's an air hammer instead of somebody hammering and
getting shoulder injuries. He's twice as productive as he is about it.
Most of those ergonomic changes, if you accommodate the workplace to the
worker, make you a lot more productive. And to me, it's just a win, win for the
employer.
And it's a win/win for the employee. And I can't understand this mounting
resistance of this, and I don't understand Congress getting into this thing. It
exposes at the urging of employers.
But if anything else costs an employer as much money as this kind of injury,
he'd have a committee on it and he wouldn't rest until that cost was eliminated.
And I think there's a difficulty in relating injuries to cost.
It's a burden to the employer to do these things. And it really is a cost
effective thing that should save him money if he does it in a practical way and
doesn't get caught up --
To me it reads kind of complex and I can understand that. But most of it is
just common sense -- looking at a job and if you look at what's unpleasant in a job it
usually relates to ergonomics. It makes that job more pleasant and more
efficient. And I guess that's the end of my --
MR. KENNEDY: Yeah, but Al, the only thing that bothers me about that is,
again, will regulation bring the cost down, or will education and training and
knowledge bring it down.
And when we talk about butchers, if you're using that as a scenario, you're
talking about workers in a controlled environment, where they go and they do the
same job over and over again.
You're familiar -- you're obviously familiar -- with the construction
industry or you wouldn't be sitting on this Committee. How many days did you
ever do the same thing over and over and over again on your job?
MR. MEIER: That's why we have --
DR. RINGEN: Mr. Maresca?
CHARLES MARESCA
MR. MARESCA: My name is Charles Maresca. I represent the Associated Builders
and Contractors. ABC is a national trade association representing over 18,000
shop construction related firms. We appreciate this opportunity to register our
opposition to the Committee's proposal for a construction specific ergonomics
program.
ABC and its members share a strong commitment to employee safety and health.
As a national association ABC has a long history of developing programs to
assist and enhance our member's efforts to provide their employees with a safe
and healthful job site.
ABC members are encouraged to develop comprehensive safety and health
programs which incorporate management commitment, employee involvement, safety
and hazard communication training and regular tool box safety talks, as well as
mechanisms for job safety analysis, hazard recognition and investigation.
In an earlier letter to this Committee, my predecessor Howe explained to the
working group that ABC could not support this effort to develop an ergonomic
standard.
In the letter dated April 21, 1995 addressed to Ms. Burkhammer she wrote,
"Despite the work groups effort to make the pre-proposal draft
construction specific, ABC cannot support the final product of the ACCSH work
group. The majority of the construction industry and ABC's membership are
composed of small firms, employing fewer than ten people. Such an employer will
be overwhelmed by the process required in the proposal. ABC shares OSHA's
interest in reducing the potential for musculoskeletal injures and illnesses,
however, this proposal would hold employers responsible for conditions that may
not be occupational in nature. OSHA should instead work to educate the
construction industry on risk factors and innovative work practices to reduce
the potential for injury, rather than forcing this "one size fits all"
solution on an industry with little or not experience with ergonomics."
We have pointed out that neither this Committee, nor OSHA, has demonstrated
the data that would support such a comprehensive proposal. Nor has anyone shown
that its implementation would be economically feasible for the construction
industry.
If this proposal were to become the OSHA standard it would require
construction contractors to remove safety and health professionals for more
pressing priorities at construction work sites in order to focus on this one
issue.
I share with my colleagues and the construction trade associations there
concerns, not only for the substance of the proposal, but also for the process
by which it has come about.
The release of the proposal, only last week, has left us no time to confer
with our members, and little time to review the document in our offices.
We do not believe this Summer surprise to be consistent with OSHA's expressed
desire for partnership with industry and commitment in the rule making process.
In addition this proposal has gone forward over the expressed opposition of ABC
and others, leaving the document far short of consensus.
ABC's senior vice-president, Charles Hawkins, once told this Committee that,
"ACCSH can serve a valuable advisory role to OSHA so long as the Committee
is composed of a broad base of individuals who are not only committed to improve
safety and health, but understand the realities of the construction industry.
To be truly effective OSHA must forge a partnership with the employees and
employers whose work sites it regulates."
Simply put, this proposal would be an obstruction to the partnership that we
all seek. And let me say again, on behalf of ABC, thank you for this opportunity
to present our views.
DR. RINGEN: Stu?
MR. BURKHAMMER: Charles, as you are aware, and I'm sure ABC is aware, Sue was
an original member of the work group. She changed jobs?
MR. MARESCA: She has changed jobs.
MR. BURKHAMMER: Evidently, you replaced her.
MR. MARESCA: I replaced her.
MR. BURKHAMMER: But you never attended another meeting?
MR. MARESCA: I replaced her in June; she left ABC in April. She left behind a
note, by the way, for her successor to look for communications from the
Committee.
I worked to the bottom of my in-box, which by the time I had come on board,
which was quite high. And I found no communications from the Committee, which
kind of surprised me.
I have had no time to communicate myself to the Committee what was going on.
MR. BURKHAMMER: You referenced an April 21st letter from Suey to me which the
Committee members all have a copy of in the book.
When she wrote the letter it was after the first meeting; I think the
Committee incorporated a lot of her thoughts and comments that she made in the
first meeting showing attendant one and then she changed.
I think the standard draft has come a long way since she made the original
letter. We certainly thought, in the Committee, that someone would replace her.
The correspondence after April 21st, I think, the following correspondence
will be sent out, and I think Suey got a copy of the -- she's left, but I think
we sent her one at her new law firm. Maybe I'm incorrect, but I think we did.
Maybe we should have forwarded that to somebody without a name at ABC, but we
didn't know who to send it to.
You do have a slot on the Committee; it's still vacant, you're still welcome
to participate. ABC is a representative member of the work group. So, any future
meetings that the work group has you'll be notified; the material will come to
you. We'll send you all the back material if you didn't get it. And please come
and participate.
MR: MARESCA: I appreciate that. I would like to say, though, that I have no
way of commenting on whether changes that have been incorporated since April
reflect the concerns that the April 21st letter shows.
I have no way of doing that. I just got the proposal last week. I don't know
that ABC's position will change. We can't -- at this moment we can't support
this proposal.
Whether they would -- whether ABC would consider it valuable use of our time
to work on a committee working on a proposal that it cannot support -- I tend to doubt it. But I would certainly bring that back, and
we'll talk about it.
MR. BURKHAMMER: I think that's an excellent point that you just made, and I'd
like to make a comment about it and don't take it the wrong way.
But if you don't want to participate because you don't like the process, and
you don't like the standard, how are we ever going to change it if you don't
want to play?
MR. MARESCA: The easy answer would be to change the process. I think the --
our early letter really is the best statement of our position right now.
DR. RINGEN: How do we --
MR. MARCESA: Well, you'd have to not put this proposal forward. You'd have to
start with data; you'd have to make the case. You'd have to show the data is and
what risk it shows in the construction workplace, and work from that.
MR. JONES: Mr. Maresca, I think we really have to put this thing into
perspective a little bit better.
This is a work group to an advisory committee to OSHA. They do not decide
anything. They do not settle anything. They do not reach consensus; that is not
their job. Their job is to gather material which they could obtain from you or
from any other employer or employee representative.
And it is the most ambitious work group that we have had in my entire
experience with this Committee. And to find fault with them, because they fell
short of what some of you would feel should be adequate dissemination of data
from the work group, I think really misses the point.
I think that there is a great deal of opportunity here, but you can get very
much in the ground floor.
This work group report is not being presented to the Committee for a final
vote at this time. It may not be presented for a final vote for some time.
Therefore, there very likely will be additional meetings, and additional
opportunities for your organization, and for all interested parties, to make
input.
So, I think, really there ends up being a lot of time wasted -- I'm talking
about the process, when you really should be talking about the data and the
procedures, which need to be brought forward to the work group which will then
provide it to the Committee, which will then provide it to OSHA, and the full
deliberative process will then be undertaken by the Agency in order to use that
data so that the Agency, not the work group, not the Committee, will make the
final determination whether there is a significant risk from ergonomic or
musculoskeletal disorder type hazards that would merit the initiation of rule
making and the promulgation of a standard after the rule making process has been
completed.
DR. RINGEN: Thank you.
MR. MARESCA: It's hard to disagree with that. I think the first step is to
look at the data. I'm not aware that we really have done that here.
MR. MEIER: Do you have data that conflicts with what we have?
MR. MARESCA: We have --
MR. MEIER: Because if you do we want it. I mean, why keep it a secret. We're
looking at VOS and state data and it indicates there's a problem. If you do
disagree, or have data to the contrary, well please give it to us.
I mean, don't just carp about it, bring it in. It's not even rule making.
We're just making recommendations. We're a work group.
You act like it's standard setting, and it's not.
MR. MARESCA: It's part of standard setting. What this Committee says to OSHA
carries a great deal of weight, and we are very concerned about this particular
proposal. We think it is the cart before the horse.
The data that has been presented has not adequately -- does not at all
support this kind of an organized proposal.
DR. RINGEN: I personally have reviewed a lot of the data that is here, and I
think that the basis for what you're saying about the lack of data is
unsubstantiated.
I would like to see you all substantiate where the lack of data -- or to
demonstrate clearly to us that there is no problem, no significant problem,
here.
Because, I think most people -- I shouldn't say they're necessarily neutral
on this issue -- but who try to be objective about it, will find that they're a
lot of problems that are documented fairly well and scientifically.
Finally, we're going to take Regina Solomon from the Home Builder's. And
after she's finished, we're going to take a break before we do the last panel.
Okay?
REGINA SOLOMON
MS. SOLOMON: For starters, I'd like to say that I'm not going to go into any
real analysis, because I did not have an opportunity to review this
substantially in order to make specific comments.
I would like to talk about small business, and it bothers me a great deal
that the efforts and discussions about small business in the past have been
stated as crap in the meeting earlier. Small business is not being addressed.
Earlier, the position of small business was a bunch of crap. It's in the
record; you can go pull that back out. That's an enormous concern that -- shall
I proceed?
DR. RINGEN: Yeah.
MS. SOLOMON: That's an enormous concern that we don't think that small
business is being properly looked at in this issue. I don't think that small
business can easily comply with any of the things that are being tossed about
either by this organization or by the agency as a whole.
Al, you said earlier that all you have to do is look at your worker's comp
rates and this is common sense. Well, I think we can say a lot of things about
the Agency, but one surely is that most of the regulations are not born out of
common sense understanding; they're very difficult.
We're looking at the (inaudible) right now trying to make it more common
sense. Because, people do have an enormous difficulty. And I also disagree with
that this isn't rocket science.
If you look at a small home builder who has maybe one or two employees, this
is rocket science to them. And it's unfair to expect them to automatically be
able to comply with this.
You say you're a physician -- they're not. Some of them don't have college
educations. Some of them grew up in the industry. They know how to build a
house; that's what they do. And they're required to do a myriad of other
government regulations in addition to the requirements under the OSHA Act.
So, to try to say that this is just something that they can do, and it's
common sense, and they can figure it out -- it's just one of hundreds and
hundreds of things that they have to address.
And it's critical that this group recognize that this is one of many things;
it's not the only thing. It's not just one little new thing they have to deal
with and then tomorrow everything will be fine, because there will be another
regulation tomorrow, whether it's OSHA or otherwise -- a local one that we'll
never even know about because we're not involved with them in the day-to-day
activities.
I think, as Charlie put it, we've got the cart before the horse. The Agency,
as a whole, is under an enormous amount of stress and pressure specific with the
ergonomics regulation industry wide, or across all industries.
I think it's premature, and inappropriate, for this language -- although
you're not calling it a standard, it certainly looks like a standard. It reads
like a standard.
I mean, if it walks like a duck and talks like a duck, and I think that's the
concern of all the people up here. Because, you say this is information
gathering. This does not look like information. It looks like a standard. And
that's where you're getting so much resistance right now, and so much concern,
because it looks like a standard.
And it looks like ACCSH is coming forward and saying, "We're supporting
this standard." Stu's slide even said standard on it.
It didn't say information gathering technique.
It didn't say data or thoughts or stuff you want to know. It said standard on
it.
So, you wonder why everyone's acting like it's a standard. Well, it looks
like one. And I think it's important that everyone try to address that in terms
of how we're getting this kind of negative responses. Small business will be
crushed by a lot of the things being proposed here, and a lot of the information
that's being floated about.
I have not had an opportunity to review this. I don't know the distinct
differences between the draft that came out of the ergonomics team, which I have
had some opportunity to review. But based on I saw therein and the brief review
today, it still is very overwhelming for small business.
If the Agency needs to target a particular industry to break new ground, and
ergonomic information dissemination, and helping industries, I don't think construction's
the one to begin with.
I think they've done some major work, excuse me, in some other industries.
And I think that's important.
One of the things that we were talking about earlier with some of the folks
on the group was, when there was hearing on the Hill, the group that was up
there that was doing the most clamoring about the debilitating injuries wasn't
construction.
And there's probably a reason that the witnesses that were chosen, who were
up there claiming that they were debilitated and couldn't button there shirts or
whatever the case, they weren't construction people. They were from the meat
packing industry.
And clearly, I think, a lot of people -- if you had to take a poll of all the
people who didn't necessarily agree with the route you're taking in construction
-- I think most of them would probably agree that if we were going to target an
industry it's probably something along those lines.
I have meat packing guidelines, and it looks like it's starting to work.
That's what everyone is claiming right now.
So, if that's the case, it's being born out of data and that kind of
information. But that was a long term effort. And I think we've got the cart
before the horse. I think it's premature right now. I think ACCSH is getting
ahead of the Agency.
I think the Agency is under so much fire right now that -- right now this is
inappropriate to be moving forward at this point.
That appropriations writer on fall protection -- there's one on ergonomics in there too kids. And the reason
it's there is because this is so volatile.
California was supposed to mandated to do a rule and they said we don't have
the data and they backed off. There's a reason everybody's backing off.
And maybe that should be considered by this group before anymore work gets
done. There's a lot of issues out there that we all can agree on that need to be
addressed.
So, maybe we should refocus our energies.
DR. RINGEN: You rightfully took exception with the derogatory terms that
somebody referred to your industry; then in return I'd like you not to call us
kids.
MS. SOLOMON: Fair enough.
DR. RINGEN: Let me make one point, or a couple of points. The small home
builders have mentioned the guy who did our house.
He was a small home builder; he had no trouble getting a structural engineer
in there when that was needed; no trouble going to the D.C. government, which
Lord knows is not easy to deal with.
MS. SOLOMON: I guess I never really quite understood the parallels of that.
Have you given him this to see if he understands it?
DR. RINGEN: No, I have not.
MS. SOLOMON: Because I mean -- I would really want to be -- you know, without
any assistance from anyone involved just give it to him and say, "What
could you do with this?"
DR. RINGEN: He probably has not had that much experience with this.
MS. SOLOMON: That's probably because it's representative of the industry as a
whole.
DR. RINGEN: But we also have a carpet layer in our house.
A man who was 50 years old, and had been operated on his knee three times so
far in his career, because of the use of the knee kicker. That's also wrong.
That's an obvious, what you would call, musculoskeletal work related problem.
Would you agree with that?
MS. SOLOMON: I don't know his case history to be able to say if it was caused
by his job.
DR. RINGEN: Do you believe that knee kickers cause knee injury among carpet
layers?
MS. SOLOMON: I would have to look -- I think each case should be evaluated
DR. RINGEN: In general?
MS. SOLOMON: I don't know. I certainly would not claim to have that kind of
knowledge. You're not going to get me to say --
MR. SMITH: Common sense -- You want common sense out of OSHA, but we can't
get it out of you.
MS. SOLOMON: I'm not claiming to be an expert on it.
MR. SMITH: I'm not either -- but if I banged my knee against that wall a few
hundred times eventually something's going to give in my knee.
MR. KENNEDY: Did you raise the price of the bid so you could go buy an
electric kicker? Would you raise the price of your house because you had to
comply with your standard?
MR. SMITH: That's my argument. If it's a standard for everybody across the
board for a level playing field it may raise the cost of construction.
But in the sense of a small employer, let me give you a good example of a
personal situation.
If Stu Burkhammer from Bechtel and his company, as big as they and they have
multitudes of money everybody thinks, and has multitudes of programs, and they
put a laborer in trench that's eight feet and they bury him alive, is that
wrong? Yeah, it's wrong.
By the same token that little, small employer only has six people working for
him, that's putting in a sewer line at the town house that digs eight feet down
and doesn't do it the correct way, because it's a little more expensive to do it
that way, and will take a little more time to do it, and he thinks he can get
away with just putting a 19 year old kid in that trench to make that connection
and buries him alive.
Is that wrong? And should he be exempt because he's a small employer? No.
That happened to a friend of mine, it was a 19 year old kid that was only
there for Summertime work. And he went in that trench because his employer said
to do so.
He didn't slope it, he didn't shore it, he didn't do anything that he was
supposed to do because he made an economic decision -- I can get it done in a
day, or it will take me a day and a half or two days to do it.
I agree it's in the standard.
MR. KENNEDY: Right there is a direct causal relationship, and like I pointed
out in my statement, you can't at this point -- they cannot show me the
difference between what's affecting the worker, as a worker, as compared to his
outside activities, his aging process, his body makeup, his generic history, his
physical condition, his diet, his exercise lever, et cetera, et cetera.
There's 20 other factors. The guy in the trench, yeah, that's going to bury
him. Boom, it's done.
MR. SMITH: George, I agree with you. We're not going to be able to ever
correlate what they do socially with what they do in the workplace. Never, ever
will we be able to do that.
But I also disagree with you that a guy who carries sheet rock up and down
steps every day of his life is not going to injure his body more than a guy who
sits behind a desk, in that factor. There's no way you can compare the two.
MR. KENNEDY: You can get musculoskeletal disorders from sitting behind a desk
--
MR. SMITH: I agree with you, but I'm just telling you ahead of time. And I
hate to go on with this debate.
Because, it just upsets me to think that you think that there's not a risk
out there that we can identify and work towards fixing. And this is an avenue to
start with.
MR. KENNEDY: I don't say that. I say we can't distinguish the risk.
MR. SMITH: And we never will.
MR. KENNEDY: What you're saying is by preparing a standard -- if a standard
like this goes through you're saying that every employer is going to be
responsible for every ache and pain that every worker has.
MR. SMITH: And they almost are now.
MR. KENNEDY: And we could all go into out employers tomorrow and say I have a
musculoskeletal disorder because I've been sitting in this darn chair at the
desk for six months straight.
MR. SMITH: But I'm saying, they almost are now because me and Jack said the
same thing. When you testified that I leaned over him and I said, "That's
the way it is right now, today."
Almost every back injury that an individual has either came from work, or if
it was caused at home they may have made it into work and then during that work
week they hurt it at work. And I mean, you know that as well as I do.
MS. SOLOMON: That doesn't make it right.
MR. SMITH: It doesn't make it right, but you're not going to be able to
change it. You're never going to be able to change it Regina.
MS. SOLOMON: But I don't think we should regulate it just because we can't
change it.
MR. SMITH: Don't regulate it, educate.
DR. RINGEN: Let's see, Ana Maria.
MS. OSORIO: Just really quick.
First of all, I think my rocket scientist -- it was taken out of context. I
was replying to Mr. Kennedy? Yeah. Your remark about what happens that you don't
have enough docs out there and I'm saying that --
MS. SOLOMON: Actually I think it was Al's rocket scientist.
MS. OSARIO: I just want to clarify that. I can't speak for the safety part.
But for the medical community out there -- if this isn't rocket science to
implicate what's in the medical portion of the current proposed guidance
document.
But secondly, when the carpet kickers stuff came out -- that's about as black
and white as you can get. So, I think the hesitancy in admitting that there is
an association there kind of leaves me baffled. But I'll leave that aside.
MS. SOLOMON: I don't represent carpet layers. I mean certainly we have some
as members, but that's not where my expertise lies. So, it's unfair to put me in
a position to make a statement when my expertise isn't there.
MS. OSORIO: My third point is that, you know, I do think that some things
were said about small business, and I guess it flew by me and stuff. But I also
would push for a vote of civility, both on our part and on the part of the
people presenting.
Because, I think to speak in a condescending manner to all of us doesn't
really push forth a really good discussion of give and take. So, I would just
like interject that as a note of civility that we should keep in mind.
The second thing, though, there's a lot of stuff that happens in the
workplace. Take it away from musculoskeletal.
It could have a non-workplace component, and that's where you need to work
with the health and safety specialists, with the medical people, and all this.
And you know, that's the art of doing occupational health and safety. And so,
it's not going to be black and white. Unless you're talking lab rats, you're not
going to control every single factor out there.
However, just because it's hard to do doesn't mean we have to try to finesse
a way to deal with it. What the best way -- whether this document is not going
to get, you know, transposed, or fiddled with and stuff -- I'm not saying it's not going to.
But I think to say there's too many factors, you can't control it; let's not
do anything. I don't think that serves anybody's purpose, both employer or
employee.
So, again, I would urge what Stu and some other people have said -- for those
of you out there that have strong viewpoints and stuff -- I think this is an
inclusive and not an exclusive work, data gathering, whatever you want to call
the process going on here.
And that instead of saying, "No, I don't like -- I'm not going to participate." Come in, come to these meetings
and you'll participate. And let's try to get some kind of middle of the road
approaches.
Because, I don't think we can close our eyes to it. I mean it was just my
opinion.
MR. BURKHAMMER: A lot of you spent a lot of time, even the previous panel,
talking about training. And we discussed at length training in the work group,
and I encourage all of you to take a look at the training section; take a look
at the attachment "D" on training.
I think, George, your comment is very well taken and I made quite a bit of
notes on your comments.
But the training is extremely important. And Regina goes around and spends
most of her life training and is on the road all the time training people.
I think I'd appreciate both Regina and George's comments on the training
section, because I think they have a lot to -- and I'd like to hear from you.
DR. RINGEN: Any other comments. All right, let's take a well deserved break
for everyone.
[Recess.]
DR. RINGEN: The final panel today consists of Anita Drummond, Director of
Government Relations to the American Subcontractor's Association; Ellen Larson,
Director of Government Relations to the Air Conditioning Contractors of America;
Marc Freedman -- I don't know your title Marc?
MR. FREEDMAN: It's Director of Government Affairs of the Painting and
Decorating --
DR. RINGEN: The Director of Government Affairs of the Painting and Decorating
(inaudible).
MR. FREEDMAN: I would be Marc.
DR. RINGEN: You would be Marc. Okay. That's not rocket science, right?
MR. FREEDMAN: It's common sense. Let's see how much we've got.
MR. RINGEN: Ms. Drummond would you like to start?
MS. DRUMMOND: Yes. I'm Anita Drummond with the American Subcontractors
Association. ASA is a trade association of approximately 6,000 specially trained
contractors. They're engaged in all phases of construction.
In order to put my comments in context I will give you a little history of my
entry into this discussion.
I regularly attend these meetings and try to extract as much information as
possible to understand what perspective you're coming from and what your plans
are.
I understand that at some point in the Spring there were stake holders
meetings held by OSHA, not by this committee, on the ergonomic standards
development.
We do not participate in that committee and were not invited. So, we
expressed our concern along with the National Association of Plumbing, Heating,
Cooling contractors to Joe Dear that we had not been invited, and that specialty
trade contractors actually represented about 80% of the industries
contractors who did the day to day work or construction; that being all the
levels below a general contractor.
And I will say that Administrator Dear was very receptive to our request to
participate.
However, when this committee continued to work, and you announced that there
would be a working group developed -- and I believe that Mr. Burkhammer was
under the same assumption -- we worried that the work group was challenged with
submitting to the committee a recommendation.
And now, today, we hear that it's not necessarily a recommendation; it's more
of an information collection. I think the semantics did cause some confusion in
the objectives of the work group.
So, to that, I say Mr. Burkhammer's done a good job of trying to bring
together the bodies to make a reasonable recommendation.
However, being one person from trade association, I could not participate in
the work group, but chose instead to notify Judy Paul that I would participate
in Safety and Health, because I was trying to put my resources where I could
make the most impact.
However, I did want to participate in ergonomics in the sense of having a
working knowledge of it, and be able to submit comments.
In requesting to review the ergonomics from the OSHA offices I was not
allowed to do so because it is a private undertaking, or a closed process.
So, that leaves me with being very uncomfortable with what was actually in
the document. I could not honestly give you substantive comments up to that
point.
In May the specialty trade contractors met with Joe Dear, in late May, and we
talked to him about our objections to making this a standard because we were not
fully competent with the data that was presented; that there was a problem.
But more importantly if there is a problem, and we do see the statistics on
sprains, strains and back injuries, what were the applications that would
actually correct these problems. That is what one of our primary concerns is.
So, as a collective group -- there were approximately eight, nine, ten of us
-- we were offered to Joe Dear to work with his office on some demonstration
projects that would be purely voluntary, in order to identify ways to help the
small contractor implement mechanisms to reduce injuries on the work site.
That being said we could not support the development of a full regulation
until there was better information, and I do not believe that at this point we
had been presented or allowed to review that information.
Claudia Harris of the National Association of Plumbing, Heating, Cooling
Contractors did participate in the ergonomics, I'm sorry, the MSC work group as
it was changed, and she was able to give some substantive review and comments on
it.
But as she expressed earlier to this committee, that was difficult for her
because we were not necessarily able to review it or, more importantly,
circulate some of it to members that I respect and who are very committed --
members of my association who are very committed to safety and health.
I couldn't honestly say how it's going to be applied to a small contractor if
I haven't been given the opportunity to let them review it.
So, that is the quandary I feel I'm presented with today.
The way I recall, at the last meeting, it was decided that this document
would be made available to the public and for there to be a review of it, and at
this meeting today we would be presenting you with our comments. However, that
did not occur until last Friday.
At the last meeting it was decided that this document would be made available
to the public and for there to be a review of it and at this meeting today we
would be presenting you with our comments.
However, that did not occur until last Friday. And I know this is a procedure
issue, but I feel like I cannot begin to give you valuable advice in regards to
the details of the document.
However, there are some issues that have been discussed at the committee
level that I can give you some of my responses to that surround the MSD
documents.
One is the worker's comp issue, the question that seems like MSD would just
naturally be acceptable because people want to reduce their worker's comp cost.
I can honestly say that is a common discussion among my members. We want to
reduce our worker's comp.
But that gets to the issue of accountability of the employee.
You can train, you can warn, you can give paperwork, you can do analysis, but
if the employee is not ultimately held accountable for their actions and they
are the cause of their injury, the employer is put in a very awkward position.
I think that our members, in fact the American Subcontractors Association is
evaluating how they can help contractors educate their employees on back strains
and similar injuries.
But in the end the employees also are an equal contributor to their own
safety and their injuries on the work site.
So, it's just an issue that just keeps coming up among the members of this
committee about -- as long as the employers are doing their job the employees
also have to be doing their job. And I think that should be an ultimate part of
the formula when we discussed preventing MSD.
And finally as to the issue of the work group and how it proceeded, I think
Stewart was doing the job he was put out -- was set out to do by this committee;
taking a very difficult issue and trying to present some sort of recommendation.
However, I would charge that we would like to know under what regulations
this committee is doing this work and not allowing the documents to be
circulated.
It would just help us clarify and understand the procedures better so that we
are better participants.
I myself have become, and Ana Maria can contest to this, a member of the
Safety and Health Work Group. However, I feel very uncomfortable thinking that I
could not go to my colleagues and ask them what they think of this.
Or, more importantly, my own membership, which would ultimately have to be
subjected to any kind of draft that would ultimately become a standard.
I fully understand the standards process, and that this is just an advisory
group. But we all know that, as has been said earlier, the recommendations of
this committee are respected within the agencies and many sectors, and they are
often the skeleton or the basis of future standards.
So, we are trying to participate in a fair and equal playing field, and we
believe that this committee should help us understand under what regulations you
are using in the work group process specifically. And that is the conclusion of
my comments.
DR. RINGEN: Steve do you want to comment on what kind of regulations we
operate under.
MR. JONES: Our regulations for the advisory committee are set out in CFR. And
the only provisions that directly reflect work groups are the provisions that
talk about us having experts, or other persons, who can be brought in to help;
then to provide their expertise to the committee.
As a general matter the question of availability -- it's really more a
fundamental question of the Agency trying to maintain some kind of control over
its work product so that you don't have people who are attempting, however much
in good faith, to try to nail down a moving target.
And that the Agency is in a deliberative situation where they're looking at a
number of options, and if the work group, or the general public, knows every
single aspect of every single option it can diffuse the attention and the energy
of the participants.
So that, the designated officer, or whoever is dealing with the committee or
the work groups, generally as a prudential matter will say that there have to be
some limits on what is disclosed to the general public. Or, limits on what can
be taken out of a meeting by the participants in that meeting, so that
discretion and the flexibility of the Agency to use the product of the work
group, or the committee, is maintained.
MS. DRUMMOND: I just want there to be a clarification between the activity of
OSHA and that of the committee.
Although the committee often is presented with information that's in
development by the administration, the work that is done by the committee is a
separate activity which is an advisory public process. And so therefore, my
questions is, is that work that's done in the committee -- it's not necessarily
fall under the same obligations that a administrative -- standards development
process would.
And I think that clarification needs to be made.
MR. JONES: There is a distinction, certainly, between a committee and then a
work group of the committee, and then between either of those two, and then the
Agency. I mean, that's very important.
In the FACA language it is clear that the designated federal officer acting
for the Agency, which constitutes the advisory committee, maintains full
authority as to the convening and the conduct of meetings by advisory groups or
their work groups.
So, exercising that general FACA statutory authority, the Agency does involve
itself in the function of those, and the administerial aspects certainly are
controlled by the Agency in terms of approving either the convening of a work
group meeting or the convening of a committee meeting, for that matter.
And if it is necessary then to disband that group -- if the subject matter
has been addressed, or if the committee or the work group has gotten off course.
So we do continue to involve ourselves, but we do not, especially with the
work group -- it is a pre-rule making activity that we're talking about.
We do not invest that work group with the authority of the Agency.
We do not invest the work group product with the prestige or the stamp of the
Agency.
MS. DRUMMOND: In regards to the Federal Advisory Committee Act there are some
stipulations that meeting notices must be made in the federal register as a
committee and a subcommittee of that committee.
MR. JONES: Right.
MS. DRUMMOND: How do you make distinctions between a subcommittee and work
group.
MR. JONES: Subcommittees reach consensus. Subcommittees are, in effect,
little advisory committees.
Work groups, on the other hand, are information gathering, cumulative
activities, and therefore are not subcommittee or committees which would
necessitate the federal register notice requirement; the public notice
requirement to which you refer.
MS. DRUMMOND: I appreciate that clarification. I would just say that in
participating as an observer only in these committee meetings in the past, it's
been unclear that the working groups objective was to simply collect
information, rather than come to a consensus, or some sort of majority opinion
on a recommendation.
And I think that clarification -- it better serves this committee now.
DR. RINGEN: Stu, do you want to comment?
MR. BURKHAMMER: First of all it's the first kind voice I've heard in seven
presenters. I felt like chopped liver 'till she got up there. So, it's very kind
of you.
MS. DRUMMOND: We're the --
MR. BURKHAMMER: We wanted to soften you guys up. I know we've got two to go;
I'll probably be back to chopped liver.
Let me talk about the work group. The work group, as I said earlier, was
chaired -- and you're right in your comment, by Joe Dear to come back with a
recommendation on musculoskeletal disorders.
As chairman of the work group I had the authority to determine how that
recommendation was going to be focused. So, it was my decision to take the draft
standard that Barbara and her group had put together for a 1910 standard.
And take that as the basis for where we started. Usually work groups are put
together to discuss a standard that's already been developed and they take that
developed document and tear it apart like we did forklift trucks, and some other
ones, and give it back to them.
Here we had a very, very, very, very rough draft to start with. So, we took
that draft and used it as the basis for the work group discussion.
From that draft, we formulated what you saw today in the slide show and in
the handouts to draft a proposed standard to take to the full ACCSH committee
for their review.
All our work group does is put together information in whatever form they so
chose, and I chose to put it together in a draft standard to make it easier for
them to follow in a sequence, rather than just five or six inches of documents
that went from here to fair thee well, and that's about what we started with.
So, when the committee got the package they could sequentially follow this
thing and hopefully then that group, and only that group, which is this group
sitting in front of you -- the current thirteen members, some of which aren't
here today -- then make a recommendation to OSHA based on the work group's
report.
All the work group is giving this committee is a report. I chose to make the
report in the form of a draft standard.
DR. RINGEN: I think your point is well taken. But it only occurred to me
today as a result of some discussion, most of our work proceedings are not
terribly controversial.
Take as an example the forklift debate.
Some may be, and perhaps we should do a better job of asking the chairman of
the working groups to make clear to everybody how the working group will operate
at the beginning. That may be helpful so that it's clear.
But keep in mind again, this is a committee of volunteers.
We have a particular problem to look at. We turn to one person on this
committee as a volunteer to try to develop information on that.
In this case, Stu was kind enough to say, "Okay, I'll take on the
responsibility of chairing a work group to look at this problem and to pull it
together."
And he asked other people on this committee to participate with him, and he
asked other people, also, to join him in doing this. And so they sat down as a
group of people working together and trying to create something meaningful in
this area.
And that's all really what a work group is. We could be a little bit more
careful in terms of each work group's specified how it intends to operate, and
we'll do that in the future.
Okay, thank you. Ellen Larson?
MS. LARSON: Thank you, Mr. Chairman, members of the committee.
Ellen Larson, Director of Government Relations for the Air Conditioning
Contractors of America.
I'm not a safety specialist and I don't have the benefit of our member's
input on this draft since I just took a look at it myself a couple of days ago.
But I do want to kind of touch on some things that have been said today, and
one of them, Regina pointed out a little earlier.
I think it's important to look at some of the reasons for some of the
negative comments that you're hearing, and maybe this small anecdote will kind
of highlight it a little bit.
We had a board meeting a couple of months ago at ACCA, and we discussed the
issue of ergonomics. We do have a safety committee, and we're very dedicated to
developing an effective safety program that includes the manual and safety
handbook and posters and training programs.
So, the issue came up and it wasn't rejected out of hand because of the
concepts. I don't think people are willing to say that MSD is not a problem.
I mean, I think there are concerns out there that a responsible employer
wants to address.
Where the concerns came up was when it was talked about in the context of a
standard. And I think we've been over this enough perhaps, and maybe it's just
wording.
But I would suggest that if this is indeed the beginning of the process,
let's look at it as an information gathering process.
Let's look to trade associations to utilize their members to get information
and to survey companies, and start the process that way rather than assuming
that this is something that has to be put in the form of a regulation, which,
frankly, scares the heck out of our members and a lot of other companies, I
would imagine.
We've go probably about 3,500 members that are engaged in the design,
installation, repair and service of environmental systems in new construction,
as well as service and replacement.
And you know, whether they're residential, commercial, industrial or a
combination, the average member firm has about ten employees.
And as it was also pointed out earlier, it's not just this issue, but it's
other's from OSHA. And it's other regulations from other agencies that our
members have to comply with.
That's not the issue we're talking about here. I realize that it's something
that has to be considered when we talk about improving safety. And we've gotten
involved in a lot of discussions today about process and some very valid points.
But I think what we really should come back to is how are we going to improve
safety? From my perspective in talking to our members it's not by issuing a
regulation that is not clearly understood and cannot be clearly implemented.
And I would suggest that OSHA try to utilize not only the means that are out
there through trade associations, but its resources and a more effective manner
as far as consultation and training.
Education, I think as a broad term, rather than regulation and enforcement.
It's challenge enough for our small contractors to meet the requirements of
OSHA regulations when they're clearly understood work site related issues.
ACCSH does not believe that the MSD draft standard is clear in showing work
site relatedness. And these issues have been brought up earlier today.
Again, that's not to dispute statistics necessarily. In fact, as I said,
we're interested in disseminating information to our members on ergonomics,
gathering data, and hopefully presenting to this work group.
But we cannot support a regulation on MSD, and we certainly cannot, I think,
buy the fact that we have to have enforcement of this right now. We need
education before enforcement.
Again, I can't comment on the specifics. Hopefully, is this is the beginning
of the process we'll have an opportunity to provide some specifics.
Thank you.
DR. RINGEN: Thank you. Comments or questions?
MR. MEIER: I've been around a long time and if OSHA proceeds with this
recommendation like they have with other recommendations to this committee, it
will be ten or twelve years before we have a standard.
This full protection thing was one of my first meetings. I think I've been on
ten or twelve years. And you argue a standard out of this product here I don't
believe. We're at least tightening up the standard to prevent falls.
So I -- this is very early in the standard setting thing. I mean, they
haven't even started the standard adoption. And when standards are controversial
they just don't happen. So, I mean, this panic on your part -- and I can't
understand it, there's a lot of things in this world I don't understand -- but
this is part of the educational process, and it's very easy.
And this is really where the public ought to start commenting on this. It
wasn't back when the work group started.
I mean, the work group thing is made up of divergent representatives from
different factions of our work group out there -- the working Americans. And
it's supposed to have some balance and input from divergent kinds of sources.
So, I think, still getting hammered like
this -- I've never had a chairman of any committee that leaned over backwards
trying to accommodate everybody, and everybody in this thing did a masterful
job.
But I think, if you see where the original positions on these things were --
So, you weren't coming in after a fact at all. You're coming in before the rule
making starts.
And it sounds like everybody that's testified today doesn't understand that
yet.
MS. LARSON: No, I think we just prefer no rule making, period. Education
instead.
MR. MEIER: Well, you can't ignore me. We were proceeding -- I mean there is a
lot of information out there that indicates there's a lot of ergo problems. And
I think the advisory committee not to address them would be malfeasance on our
part.
I don't know where people talk about flawed data, the BLS and the Hilscha
survey probably runs the largest and most scientific sampling. And they indicate
there's a problem.
Now, I don't know where these other 494 that Scott or somebody drug up -- we
assume there is a problem.
And anything an employer can do and be aware of this thing I think is good.
I think as a result of this there's people worrying about ergonomics, but
it's just the thing's gone out of sight.
If you look at ergonomic injuries, and any kind of graphs I've seen, they're
just like this. And they haven't started to level off yet.
But I think if this is part of an educational process, and it's cost more
money than most employers understand, and I think it's a win, win if we can get
something done or start this -- they just go out there and look for things that
could cause repetitive motion or one time trauma kind of injuries. You can go a
long way toward preventing it.
And I still maintain you don't have to be a brain surgeon to see things that
would hurt people out there, if you understand the problem.
DR. RINGEN: Al, you joined the committee in 1985 -- 1984 -- and that was when
the fall protection was proposed. And that was before appropriations --
MS. LARSON: If I could just follow-up on that very briefly. I think what
you're saying -- you know I wouldn't dispute a lot of that.
I think what I'm suggesting is perhaps a total change in mind set of the
agency, and that is why, maybe, it is not have a lot resonance; it's hard to
hear that, or hard to do that.
But if, in fact, a lot of what's being said about reinventing government,
more consultation over commanding control is, in fact, what will happen.
Then, I think we can go a long way -- OSHA could go a long way in using its
resources to educate employers that trade associations can't reach.
So, we do have to do our part. I'm certainly not suggesting that there aren't
any bad actors out there.
DR. RINGEN: Driver education is clearly very important; we all agree with
that. But it's probably more effective as a result of having speed traps around
also. You can't have one without the other.
MR. SMITH: If there weren't any bad
accidents --
MS. LARSON: And carrots can work as well as sticks sometimes too.
DR. RINGEN: And some of the things that OSHA has done, like the focused
inspection program; which I think everybody here, in principle, endorses and
thinks it's a great step forward -- is something that this committee that has
also endorsed very strongly. These kinds of changes, I think, are very
favorable.
Any other questions.
[No response.]
Thank you.
MARK FREEDMAN
Mark Freedman, Painting and Decorator Contractor Association.
MR. FREEMAN: Painting and Decorating Contractors of America. Thank you Mr.
Chairman.
I have the unenviable position of being last in this long string of
presenters. It's very tempting to just say what they said and let's all go home.
I think I would probably make more friends that way and sell my points a lot
easier. I would be the best voice Stu heard all day.
However, I think I would be neglecting some of my responsibilities if I did
that.
I would like to respond to some of the bigger picture thoughts that I have
had. I would very much concur with everything we've heard from the other
construction association representatives.
There has been a lot of discussion among ourselves about how to present our
thoughts, and I think a lot of my thoughts have gone into what they have said.
So, I would like you to consider that at the same time.
I'd like to return to some of the questions, Mr. Chairman, that you presented
before the lunch break. No one seems to have picked up on this. I guess the last
subject that I can pick up on it originally.
You asked us about whether we thought the question was the risk of
musculoskeletal disorders was epidemic?
I would submit to you that perhaps what we're looking at is more of a
questions of an endemic level; something that is a naturally occurring level;
yet hasn't quite spiked.
We're looking at questions that are have occurred throughout the history of
the industry. And I would suggest that there a chance or possibility that some
of these are trending downward.
Stu mentioned that Bechtel supports the use of personal protective equipment,
such as back braces and other braces.
Without question, and I think everyone would agree with this, there is a huge
greater emphasis on safety in the industry. Certainly since the time the Act was
passed, and even with a window of perhaps five year or more recently.
I know among my members, and PDCA I should say has about 3,000 members in the
coating application, we believe we are the small of the small.
We range from the mom and pop pickup truck operation up to some larger
corporations. But the average is certainly under ten employees; under a million
dollars gross revenue.
The people who have the hardest problem adding another layer of compliance to
their operation, and I'm going to get into that in a minute, but that's where we
come from.
In any event, even at that level, we are seeing a very strong emphasis on
safety. My members are coming to me seeking information.
Certainly within, as Bill said, the good actors, there's a very strong
recognition of this.
And the worker's comp issue has affected us in a great way.
Every employer carrying worker's compensation, and not all employers do that,
and that's a big problem in itself; but all employers carrying it have a problem
with injuries and that's one of their concerns.
I'd like to discuss the role of Oregon for a minute. They are probably one of
the leading states in the reform of worker's compensation.
And one of the things they did was to build in a comprehensive safety
consultant operation. And my understanding is that that has been a tremendous
success, and probably is a strong factor in the reduction of accident rates that
they've experienced.
That's a great example; unfortunately that's not the national pattern, but it
is something to look at, and that demonstrates how we can get a comprehensive
approach that will reduce some of these things without some of the problems
we're talking about in the regulations.
But the worker's comp issue also raises some troubling aspects, and that is
the issue of work relatedness. We've heard of that earlier.
Whether an injury is covered by worker's comp is often a question of that
particular state includes it as a work related injury, or defines it in a
certain way that an employee gets coverage under it.
You know, that can run all over the spectrum. And without some clear
indication of work relatedness, and I think this goes to the question of
statistics, employers being held to a standard are up in the air as to when they
have met a standard.
You know, we have to be able to know the nexus between the causal
relationship. We have to be able to say we know that this caused the problem.
I'm not going to sit here and tell you that we don't believe there's a
problem; that we don't believe there are injuries out there. I mean anybody
could see that.
But I am going to tell you that we're not satisfied with this definition of
work relatedness. We're not satisfied with the way the standard has evolved --
that the draft standard has evolved in the absence of some clearly defined
structure.
I'd also like to comment on your personal anecdote of having your house
remodeled, and hope that you used my members in that process, but I can't push
that any further. Everybody wishes they used your members, so --
DR. RINGEN: I hope they were union --
MR. FREEDMAN: We have those members too. Actually your example raised an
excellent point and illustrates on of our problems.
From the small contractor community it is not a question of whether we can't
do something, but really whether the market is demanding it of us.
And what we need to consider when we compare my members and the other small
contractors out there with the Bechtel operations, is not so much whether we
have the desire or the interests or are capable of achieving something, but can
we survive in the marketplace if we do it.
Bechtel's competitors are doing the same thing Bechtel is doing.
We have an even playing field there and they all know that they are
implementing and complying at roughly an equivalent level.
My members, in contrast, or oftentimes going up against the unscrupulous
operators who do not do this. And the difference between compliance and
noncompliance may mean the difference in being competitive. It's the sad truth.
I mean, I don't sit here and tell you that I like that situation. My members
don't like it. They believe in educated contractors if that's competition.
Any contractor who loses a job to a qualified contractor is not going to lose
a lot of sleep over it. The ones they sweat over are the ones where they lose it
to someone who isn't qualified and is cutting corners and errs in safety and
other things.
So, when we talk about the small contract community that's where our concern
comes from. And as the competitive instinct, and whether the market is driving
it, this really fires us up.
We have talked about, or we have asked for constructive alternatives, and one
of the things I've mentioned to OSHA in the past, and in fact I've mentioned to
other agencies, but OSHA, I think, is perfectly ripe for this, is to see some
strong push from the Agency to supporting the good actors and the good
contractors.
And in that vein, I'm looking for some type of a mainstream media campaign. I
mean, I would like to open up an issue of E & R and see an ad from OSHA that
says, "Hire the good contractor."
I believe that the market forces here are the ones that are going to
ultimately control who complies and who doesn't, and who does the right thing.
We've seen it in the past, and will continue to see it.
If OSHA could invest some resources in moving the market along and developing
recognition, I'm convinced that that's one of the best uses of their resources.
Let me shift gears a little bit to the question of the procedure and how much
we've said about that. Basically, I think, our concern here is related to the
idea that we see the procedure as our protection and as our safeguard. And the
idea that the procedure should guarantee the content.
I'm not going to belabor a lot of the discussion we've had on what went wrong
or how it went wrong, only to say that our feelings about not being included, or
not having had adequate opportunity, caused us to worry about what is actually
going to come out of this whole package.
And to that extent, I think Regina did an excellent job of explaining the
fact that we believe that draft standard as it's been presented is likely to
have a life of its own beyond merely being labeled the product of a work group.
We have seen this in the past on certain work group products, the lead
standard was just mentioned, and I have a fairly extensive involvement with that
standard.
That emerged as a product of a work group and pretty much continued on its
way.
Once something is on paper it's very hard to disturb it. If I was an OSHA
standard writer I would have a hard time ignoring an already drafted standard
and saying, "Well, let's start from scratch; let's pretend this doesn't
exist."
We know, it's just a fact of life, that once you start out with something
it's very easy to mold that and use that as your basis.
Stu started out with the draft, ergo standard from the larger ergonomics
effort. Many of us felt that that wasn't even a starting point, and we voiced
those objections, and yet that still became a starting point.
We are, I think, genuinely concerned and legitimately concerned about how
much emphasis this is going to be given as we go down the road. And that's where
our concern is, where the process and procedure come in.
Our feeling is that while this still in advisory committee, and I think the
question of its role of advisory has always been something of a matter of
interpretation, our feeling is that if OSHA likes the product of an advisory
committee they can run with it.
And conversely, if they don't like it, you know, then it's just the advisory
committee. But Assistant Secretary Dear has said that ergonomics is a high
priority for him.
And we believe that if he is presented with the product of a work group on
ergonomics, or musculoskeletal disorders as it may be called, he is likely to
say this is a good looking product; let's go with it.
At that point, we have lost an opportunity to really effect a change.
We have a couple more thoughts, or I have a couple more thoughts, and I will
be brief.
Theoretically, if this were to survive and continue on as a product, the
administration has talked about it in its reinventing OSHA; focusing on three
principles.
They focus on common sense, a question of partnering with the regulated
community, and relief for small business.
Ideally, if that were the case, then we would pack up and go home and say,
"Well, this will fail on all three of those things, and we're not going to
have to worry about it."
We believe that this document does raise some serious questions under each of
those items. The common sense issue -- we would probably call in a question of
task evaluation methodology, and some of the other things that are required.
As we've discussed, the partnering issue is, I think, a matter of
interpretation, for various reasons. And certainly, from the small business
perspective, we don't believe this gives us relief.
As we've discussed, it may be one piece, and it may be a good piece, but it's
one piece on top of bigger pile, and that pile keeps getting bigger.
This does not give us relief; it may in fact increase our burden to a point
where we can't comply.
Those are the big picture issues I've had, and obviously I'd be respond to
any of those concerns that you have.
DR. RINGEN: Thank you, very much. Any comments? Stu?
MR. FREEDMAN: Did I put you to sleep there?
MR. SMITH: Mark, you just said a couple of things that I was talking to Ellen
about too. And you said specifically that your good contractors are on a level
playing field with the other contractors, either in your association or not; it
doesn't matter.
And that's where the problem is in competing, because you're trying to do
right, and by trying to do right you lose the bid.
MR. FREEDMAN: There's a strong chance of that.
MR. SMITH: And my question to you is how we fix that, and I know Ellen
sometimes with a carrot versus a stick, well I was raised with a stick and I
know how to fix it with a stick -- it was called a switch back then, but it was
a stick.
But in that case, if you can't fix it with a stick currently, because we're
not talking about this regulation in effect, we're talking about the ones that
are currently out there.
If you can't fix it now, competition wise with the bad actors with a stick,
how are we going to fix it with a carrot by being consultive for training,
because they're not complying already with the stick.
And there is opportunity to get training and consultation is you really want
to look for it.
MR. FREEDMAN: I wouldn't say there aren't opportunities. I would suggest that
I think those opportunities are limited and not easily available to wide
populations.
MR. SMITH: And even if they are, the bottom line is --
MR. FREEDMAN: We're going to sit here all day and debate carrot versus stick.
MR. SMITH: But the bottom line is there's not enough enforcement; we know it.
The chances of getting caught are very slim.
When you get caught it's the cost of doing business, in most cases, because
you've won enough to pay the price of the penalty. And that's the real world
that we all live in.
It used to be that was the cost of doing business in construction -- it used
to be.
MR. FREEDMAN: Well, clearly we've moved away from that, and I think that's
evidence of the greater concern for safety.
MR. SMITH: Slowly we're moving away from it. But we're still having people
dying in trenches, and Tony Brown will tell you -- well he's not here -- but,
Tony will tell you as well as we will, "All trench fatalities are 99.9%
preventable, buy yet clearly, every there is still a trench fatality out
there." So, we're slowly moving away.
MR. FREEDMAN: And I'm not going to dispute what you said. I mean, you're
right. There's a lot of things that could be done differently. Ellen mentioned a
mind set at the Agency.
I believe that we have to get the Agency to a point where it's training
resources are available to the industry at the touch of a phone call.
MR. SMITH: I agree with you.
MR. FREEDMAN: And I don't think we've got that now, and maybe it's a
perception issue, but I think it's broader. I'll give you an example and it
relates to our lead standard.
PCA had a very direct concern with the lead standard. Our members deal with
lead based paint fairly extensively. And in determining how to comply with that,
or how to assist our members, we went out and developed a manual of compliance
procedures for the lead standard.
It would have been awfully nice to call OSHA and say, "You know, what do
you think we should put in our manual." But that really wasn't an option.
The Agency does not open itself up to that type of participation.
We'd like to get them to sign-off on our manual, but it's a very, very
difficult process to get the Agency to say, "This is a good product."
That kind of barrier and mind set is an example of where the contractors are
up against, you know, in the real world. And I think that's something that
should be worked on. And I don't want to give up the enforcement to --
I'm not sitting here telling you that we don't need enforcement. We need
enforcement. There are definitely causes for enforcement out there.
But at the same time, enforcement is clearly not the answer. I mean, you just
told me that there are too many accidents and deaths out there, and I agree with
you.
We can't sit here and say that by really increasing enforcement we're going
to solve the problem, because the blunt truth is many contractors out there know
that they're below OSHA's radar.
Enforcement will never catch them. You don't catch every speeder on the
highway; you can't catch every violator in the field.
You know, we could give every single dollar they ever asked for and it would
never, you know, we'd never clean up the problem.
MS. DRUMMOND: I have a question. In the trench incidents you guys also have
to ask the question, "Was the employee properly trained?" And if so
"Did the employee take action that was not in compliance with his
employer?"
I know you hate that question --
MR. SMITH: You're not in the real world because that kid is 19 years old,
he's directed by his supervisor to either get down there and get it, or go get
your paycheck -- he's going to go down there for a bunch of reasons.
MS. DRUMMOND: You're right, there are those incidents. But I'm saying you
also have to look at the other side; if the employer has gone to every extent to
train and to test an employee in the proper procedures of safety.
I'll tell you my members -- that is what they want. We already have a work
force shortage as it is. So, we work very hard to train and keep the employees
we have.
I know these incidents occur, but they happen the other way also. And that
has to be acknowledged.
MR. SMITH: I think it's a whole lot less the other way. I mean, I very rarely
think that an employee who's trained, knowing the hazards of trench keeping,
knowing them, and then often of his own decision goes in there and does what he
knows is going to be wrong in an eight foot trench.
First off, he shouldn't even be around on the construction job, because he is
a liability, not only to himself and his neighbors, but to the employer.
MS. DRUMMOND: Absolutely.
MR. SMITH: So, I don't think that happens as much. There might be a rare
crazy out there that will go into an eight foot grave on his own when the
employers already trained him and said, "Don't do it."
I agree with you, but that's a rare crazy out there. Most of the trench
fatalities are because of pressure being applied to get the job done.
MS. DRUMMOND: I think that's something the committee actually has to have
real statistics on.
MR. RHOTEN: I'd just like to suggest too on these trench type accidents that
you have, it's the employers responsibility to go beyond training and he also
controls the work site.
And he, in fact, can set the attitude in those shops. There's no reason -- he
controls the site. So, to blame the employee and the shop when the contractor is
in control is not nice.
MR. FREEDMAN: This is a historic issue. We can go around it all day.
DR. RINGEN: I think Stu -- Ana Maria first and then we'll
MS. OSORIO: I just have a couple of comments. One is about the lead issue. I
think you have, sir, reached consensus that education and training is real
important.
I think any problem in the workplace, be it lead, ergonomic problems, solvent
exposure, whatever. It's really a multifactorial approach.
I think there's definitely room for compliance. I think there's room for
actively going out and making accessible to both workers and company reps what
the information is out there.
I just want to say that there are two instances that I think some of that's
been done pretty. With radiator repair workers and lead -- we're the state
health department so I'm not a compliance person.
But we worked with Cal OSHA and with
employers -- and small. I mean most radiator repairs are like two or three
people if you're lucky. And we actually put together a training manual and we've
given documents and information on what kind of contract you need to have if
you're docs.
You know what to do and it's kind of like bookkeeping, you know step-by-step.
We're now working on doing the same thing for lead and painters.
It's a manual. What we do -- and, I'm just saying these are two little
examples. But I'm just saying that I think there's room for that. And just
pursuing that educational training aspect and making it accessible to the small
business.
My concern really is the small business because that's when I get the
horrendous medical cases that come to my attention.
So, I think there's room for that. But there's still room to look at other
aspects of the solution to this problem, and I don't think one necessarily has
to be done and totally forget the other half of the equation.
MR. FREEDMAN: I don't believe I said we would forget the other half of the
equation. I just expressed concerns about how got to that other half of the
equation.
I would like to comment on the -- I happen to know some of the people in
California working on the lead rule and that's a great example.
But I think you would probably admit that's an exception and you plan state
so you have certain resources or attention that the federals can't apply. So, I
would like to see that be the norm.
We would be in great shape if every safety agency with enforcement
responsibilities also would develop a compliance procedure like you described.
MS. OSORIO: But there's two things; one is the compliance. Everything I said
that I did it was not in a compliance world. It was totally volunteered. We go
around to contractors groups, we go around to union groups, we go around to
whoever will listen.
MR. FREEDMAN: Excuse me for --
MS. OSORIO: I'm just making this point that I think there are compliance
avenues that are out there, and I think there are noncompliance avenues too.
MR. FREEDMAN: Let me make the point. You just said the critical work,
"We went around".
We, being the state, being the government, being the agency, went around to
the various groups. That hasn't happened in my experience at level on that issue
at the federal level. And probably hasn't happened in, I would venture to say,
most of the states.
So, I mean, that's an exception and I'd love to see that as a norm. If you
could clone that activity I'd be very happy.
DR. RINGEN: Stu, you turn; now you can get even.
MR. BURKHAMMER: No, no. First of all I really appreciate all the comments. I
guess there's two things I'll address, and I think all of you at one time or
another in your comments made reference to the starting point or the beginning
or the process.
So, let's take a minute and talk about the starting point. I think the
starting point can be equated to the old chicken and egg syndrome, "What
comes first the chicken or the egg?" What comes first in a document is
discussion or a sheet of paper.
There are 36 or 37 people left in this room. You've got 36 or 37 probably
different ideas on what a starting point is and where a starting point is. But
you've got to start somewhere.
So, the work group chose to start with a sheet of paper to have some
discussion from. Today was a good start in the discussion.
If we didn't have a document you all probably wouldn't be here to discuss it
because there wouldn't be anything to discuss.
The process issue of how we got to where we are is probably a lot of your
concerns. It's my fault because made a decision, and Claudia can certainly
support this, that I would let the committee talk to reporters or pass out
documents. Because, all you would have gotten was a bunch of mumbo jumbo.
You'd have gotten a sheet here, five sheets here, a packet here, a couple
forms here. You'd have been lost. You'd have been left in a disaster.
And you'd all have been running around going -- and we'd be nowhere, absolutely nowhere.
MR. FREEDMAN: So we come in here --
MR. BURKHAMMER: And the work group -- so, I made a decision and there are
members of the work group that absolutely, totally disagreed with me. But
however, gets to make some decisions. And I made a decision we're not going to
piecemeal this thing.
So, at the last meeting -- let me go back a minute. The work group's job is
to prepare information for the committee; not the public. So, at the last
meeting I made a presentation -- we had lots of handouts for the people that
came. A sideshow, kind of like the one we had today, to show kind of where we
and what our progress was.
And the committee each got a book that you see Bill has there -- information
from the work group to the committee. The work group is an arm of the committee.
The work group works at the whim of the chairman and the committee. We draft
stuff for the committee.
The committee makes the decisions; not the work group and not me as the work
group chairman.
The work group continued to work; we had two meetings from the last meeting.
One was the July 7th meeting where it's all the dates on the documents.
Again, at the July 7th meeting I started to talk about discussions and
disseminations, and it came out there at the July 7th meeting that we had a
problem, that some people had it and some didn't.
And we had a great discussion and Claudia was right to the point defending
everyone of you people in this room -- that's not fair; we got the shaft. But
we've addressed that issue, maybe not the right way, but we addressed the issue.
And I think Knut put it to bed today when he personally apologized to
everybody for the way it was handled; I do too. But it's handled -- it's past.
We can't go back and generate July 7th and pass out all the papers again.
So, we came here today with lots of copies, lots of handouts for everybody
and I hope you all got one. If you didn't see Holly and I think she'll see that
you do get one.
Again, we provided information to the committee, we sent a second set of
documents out to the committee, the slide show today was for the purpose of
providing information to the committee and you all participated and saw that.
Now the work group has a decision to make. What do we do next? Do I just bag
it and head for the house, which I've never done in my life and I'm probably not
going to do now.
Or do we forge on and keep going and improve what we've.
Or do we just let the whole committee vote and let the chips fall where they
may.
I don't think that first one or the last one are the right way to go. I think
the middle one is the right way to go, where we keep on working, we keep on
forging ahead, we keep on collecting material, and we come up with the best we
can come up with.
But you all are a big part of this process because a lot of you have sat here
today and said, "We disagree with this because." I want to see the
because. I want to see you've got; come show it to me, come talk to me.
If you don't come and see me, and you don't have anything, and you don't come
and talk to me, how am I going to change it. How is the committee going to have
any information? We're not.
So, we come to the next ACCSH meeting in October and here comes Stu with
another slide show, and we go around the rosy again.
So, please between now -- we're going to have a work group meeting which I
will schedule sometime between now and the first of October. My schedule is a
disaster, but we'll see what we can do. I'll open it up and if any of you want
to come and bring something, you know, I'll you all know. Claudia and I will
make sure everybody knows when it is.
So, if you've got something to bring, come. If you don't have anything, don't
come.
MR. FREEDMAN: Can I just comment briefly on the question of participation. I
appreciate your thoughts that this was open to anybody who could come.
At the specific advisory committee meeting where the task force was formed I
wasn't able to be there.
I've been tracking this committee for some years, and I would have been there
if I could.
So, I didn't have the opportunity to participate in it. It wasn't like there
was a notice in the Federal Register that said, "OSHAS's forming a task
force on musculoskeletal disorders, anybody that wants to sign up should sign
up." But it was a question of being at that meeting and being available.
So, there was some restricted access. I'm not going to say you kept anybody
off. But it was a question of circumstances. I think at this point for us to
participate would be very good.
I'd like to come in and talk to you about the problems that we see. And maybe
hold off any consideration by the committee until the next meeting, instead of
presenting this to the committee tomorrow and having them go up or down on it.
But hold it back -- we now could have a few months to chew on it, and then, you
know, theoretically get back to you and give you some of our thoughts. That's me
speaking.
DR. RINGEN: We were joking about that. This probably would be a pretty good
time to take a vote, but --
MR. FREEDMAN: Then we're really going to have a procedure open for
discussion.
DR. RINGEN: What I think Stu said is meant sincerely. This is -- based on the
charge that we got the request that we got -- this is the best that this group
has been able to come with, and I think they've done a hell of a job.
I don't think any of the people who have been critical of this process has
necessarily taken into account, or expressed sufficient appreciation for the
personal effort that the people who have worked here on behalf of the industry.
And this is on behalf of the industry.
Whether you like the representatives who are on the committee, from the
industry, and from employers, and from the employee side, and from the public
and so on. This is the committee of the industry that OSHA has established.
This committee of the industry, through its volunteers, has put in an
enormous effort at one issue that OSHA asked us to look at.
I think that recognition should be here amongst all of us, regardless of
whether its outcome or not.
I have heard today during the break when I asked one person who was critical
of our procedure to please give in detail comments on the draft now that you
have it before you.
And if you don't have it, again we will make it available to you. But give
your detailed comments.
If you won't go out and test it with your members do whatever you want. But
get back to us with some specific information.
And I heard one member say, "Perhaps we don't want to do this because
we're not sure we want to legitimize the proceedings of this committee in this
respect."
That I think is very unhelpful, after the barrage of concern that was
expressed about our failure to involve people earlier.
MR. FREEDMAN: May I comment very briefly? I would agree with you in your
description of this committee being considered representative of the industry,
and that in fact is what triggered a lot of our concerns.
Is that, as a cross section of industry as being viewed as the cross section
of industry, it will be given greater credibility, or greater incredibility as
it moves along.
And to the extent that the current work product does not reflect some of our
thoughts and concerns; as I indicated that can survive and develop momentum on
its own, and we may be at a point down the road where we don't have a chance to
effect it.
So, I agree with you. The work group will be seen as a cross product of the
industry. And please, we know took a lot of effort because we know that we have
to do that ourselves sometimes. So, it's not a question of we don't think you
did enough work.
It's just a question of whether we like what you did.
DR. RINGEN: We also heard from some that the cause of time constraints --
it's not always possible to participate in all of our activities. But I can
assure you that none of the members of this committee has exactly a light work
schedule on their own, and they take time out from that to do the work here.
This is mostly weekend work that ends up being for the people who are here
because we all have full-time jobs and responsibilities elsewhere.
MR. FREEDMAN: What's a weekend?
DR. RINGEN: It's a time we should be out playing golf. So, those efforts that
are here are legitimate. And we want to make something good, and we're going to
make something good out of this -- whatever it ends up being.
And for those who say that there is no problem in this area, that the data to
indicate that there is no problem here, please come back to us with information
to the contrary.
I don't know how you do that with all the information that we have available
at least suggests to me that there is a pretty substantial problem. And there
may be better ways of defining that problem, I'll grant you that. But then give
us that definition; we would like that.
So, what we want back is constructive feedback; not just a criticism of what
has been done, because this isn't the final step, and what we get back, I'm
sure, will be taken into account by the work group and in the end by the
committee.
Otherwise we're not going to have an end product that's going to work anyway.
So, we have to come up with something useful here, and we would welcome your
response and Stu will schedule the next meetings of the work group, I'm sure,
and we will take it from there.
I think in one way this whole process, so far, has been very useful to this
extent when you talk about education, and education being important to the
industry, we certainly have been able to stimulate some dialogue, and that is a
form of education, and some thinking about this problem out there.
And if you take this document that exists now, and take it with you back to
your members, back to your workplaces and say, "How does this make, or does
this make sense at all? Or is there something here that does make sense, and is
there something here that absolutely does not make sense?"
We might get a hell of a lot more education out of that again than we have
now.
So, whatever you can do to help us we would welcome it. But if we don't get
help, if we don't get constructive help, then it's very little that we can
achieve on our own.
MR. BURKHAMMER: In order for me to schedule the next work group meeting,
those of you that are wishing to send me something please have it to me by
September 15th; then we'll schedule a work group meeting between -- because the
next ACCSH meeting is tentatively scheduled for October 24th.
So, I'd like to have a work group meeting some time at the end of September.
So, if you can get me that information, mail it to my address -- my address is
on the handout there. I'll (inaudible) all the information and have it for the
work group meeting at the end of September.
MR. FREEDMAN: End of September?
MR. BURKHAMMER: September 15th.
DR. RINGEN: September 15th for comments. The work group meeting will probably
be a couple of weeks after that. Any other questions or comments from the
committee here.
If not I think we've done enough work for one day, and we will adjourn and
start again tomorrow morning at 8:30 A.M.
As I've said before we will finish up tomorrow by noon. I want to thank all
of you who took your time to come here to present your views. Thank you.
[Whereupon, the meeting was adjourned, to resume Wednesday, August 9, 1995,
at 9:00 a.m.]
REPORTER'S CERTIFICATE
TITLE: Advisory Committee Construction Safety and Health
DATE: August 9, 1995
LOCATION: Washington, D.C.
This is to certify that the attached proceedings were held according to the
record and that this is the original, complete, true and accurate transcript
which has been compared to the reporting or recording accomplished at the
hearing.
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