UNITED STATES DEPARTMENT OF LABOR INFORMAL PUBLIC HEARING ON PROPOSED RULE ON CLARIFICATION OF REMEDY FOR VIOLATION OF REQUIREMENTS TO PROVIDE PROTECTIVE EQUIPMENT AND TRAIN EMPLOYEES Washington, D.C. Monday, October 6, 2008 2 1 PARTICIPANTS: 2 JOHN VITTONE Administrative Law Judge 3 Panel Members: 4 EDMUND BAIRD 5 Office of the Solicitor 6 ROBERT BURT OSHA Office of Regulatory Analysis 7 CHARLES JAMES 8 Office of the Solicitor 9 JIM MADDUX OSHA Directorate of Standards and Guidance 10 Office of Physical Hazards and Others 11 BILL PARSONS OSHA Directorate of Construction 12 Office of Construction Standards and Guidance 13 Other Participants: 14 ADELE ABRAMS American Society of Safety Engineers 15 VICTORIA BOR 16 Building and Construction Trades Department 17 DANIEL W. EGELER Con-way, Inc. 18 ROBERT HIRSCH 19 Associated Building Contractors 20 ANDREW HOLLIDAY National Association of Home Builders 21 KEN KILLOUGH 22 South Carolina Stevedores Association BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 3 1 PARTICIPANTS (CONT'D): 2 Other Participants (Cont'd): 3 BILL KOJOLA American Federation of Labor and Congress of 4 Industrial Organizations 5 ROBERT MATUGA National Association of Home Builders 6 LYNN RHINEHART 7 American Federation of Labor and Congress of Industrial Organizations 8 PAREE L. ROPER 9 Public Risk Management Association 10 ARTHUR G. SAPPER McDermott Will & Emery, LLP 11 Representing the Chamber of Commerce of the United States of America 12 CHRIS TRAHAN 13 Building and Construction Trades Department 14 15 16 17 18 * * * * * 19 20 21 22 BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 4 1 C O N T E N T S 2 AGENDA ITEM: PAGE 3 INTRODUCTION AND HEARING GUIDELINES 5 4 OVERVIEW OF PROPOSED RULE 8 5 PARTICIPANT TESTIMONIES 35 6 CLOSING STATEMENTS 7 ADJOURNMENT 8 9 EXHIBITS: 10 No. 71 - Mr. Maddox's Statement 22 11 No. 73 - Mr. Parson's Statement 22 12 No. 74 - Mr. Matuga's Written Testimony 47 13 No. 75 - Mr. Hirsch's Written Testimony 64 14 No. 76 - Minutes, 15-16 May 2008 Meeting 69 of the Advisory Committee on 15 Construction, Safety, and Health 16 17 18 19 * * * * * 20 21 22 BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 5 1 P R O C E E D I N G S 2 (10:00 a.m.) 3 JUDGE VITTONE: Let's go on the 4 record please. The hearing will please come 5 to order. 6 This is a public hearing on the 7 Occupational Safety and Health 8 Administration's Proposed Rule for 9 Clarification of Remedies for Violation of 10 Requirements to Provide Personal Protective 11 Equipment and Train Employees. This proposed 12 rule for this proceeding was published in the 13 Federal Register at Volume 73, page 48,335, 14 on August 19, 2008. 15 I'm John Vittone, Chief 16 Administrative Law Judge for the U.S. 17 Department of Labor, and I will be presiding 18 at these hearings. 19 The purpose of these hearings is to 20 receive the oral and written testimony of 21 interested parties, as well as other 22 information pertinent to the promulgation of BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 6 1 the proposed rule. At the conclusion of 2 these hearings, the record of these 3 proceedings will be reviewed by the 4 Department to determine whether a rule should 5 issue, and if so, what the content of that 6 rule should be. 7 My participation will be limited to 8 conducting these hearings to assure that a 9 complete record is made and that all 10 concerned and interested parties have a fair 11 hearing. 12 The rules governing this hearing, 13 as well as the prehearing guidelines, are 14 available in the hallway outside on that 15 table. There is also a list of witnesses 16 available designating their proposed order of 17 appearance. 18 Despite what is often described as 19 the informal nature of these hearings, it is 20 governed by some basic guidelines to assure 21 that everyone has an opportunity to speak and 22 to express their point of view. But unduly BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 7 1 repetitious testimony will not be allowed, 2 and the presentation of witnesses will be 3 generally limited in time to about 10 4 minutes. 5 The written submissions will be a 6 matter of record and participants in this 7 proceeding should in their oral testimony 8 concentrate on presenting the highlights or 9 clarifying their written submissions. 10 Witnesses may, if they wish, 11 identify their written submissions and make 12 themselves available for questions by the 13 other participants. After a witness has 14 completed his testimony, parties who have 15 filed appearances may question the witness, 16 and each participant is expected to limit his 17 questions to a period of about 15 minutes. 18 When a witness' testimony is 19 completed, I will ask for the identity of 20 those individuals in the audience who wish to 21 question the witness, and then I'll determine 22 the order in which the participants will BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 8 1 question the particular witness. 2 These proceedings will now begin. 3 And I'd like to call upon the representative 4 from the Solicitor's office, Mr. Baird, for a 5 few remarks and to introduce the 6 representatives from the Department of Labor. 7 Mr. Baird. 8 MR. BAIRD: Thank you, Your Honor. 9 Good morning. My name is Edmund Baird, and I 10 am the hearing attorney for this rulemaking. 11 On behalf of the Solicitor's office, I'd like 12 to welcome everyone to this informal public 13 hearing. 14 Let me explain the role of the 15 Solicitor's office in this rulemaking 16 hearing. Our responsibility is to help 17 facilitate the development of a complete, 18 accurate, and clear record. We will do that 19 through asking questions, eliciting 20 information on various issues, and helping to 21 resolve any procedural issues. 22 At this time, Your Honor, I'm going BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 9 1 to hand you the current master index to the 2 record and ask that the record it represents 3 be accepted as the current rulemaking hearing 4 record. 5 JUDGE VITTONE: Thank you. It will 6 be received into the record of this 7 proceeding as the record of the proceeding to 8 date. 9 MR. BAIRD: Thank you, Your Honor. 10 Now I'd like to introduce the members of 11 OSHA's panel here. To my right is Charles 12 James. Charles James is an appellant counsel 13 in the Occupational, Safety and Health 14 Division of the Solicitor's office and is the 15 project attorney on this rulemaking. 16 To his right is Jim Maddux. Jim 17 Maddux is the acting director of OSHA's 18 Office of Physical Hazards. 19 To his right is Bill Parsons. Mr. 20 Parsons is the director of OSHA's Office of 21 Construction Standards and Guidance. 22 And finally, at the end of the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 10 1 table is Robert Burt, who is the director of 2 OSHA's Office of Regulatory Analysis. 3 To begin, Mr. Maddux and Mr. 4 Parsons will each have a short opening 5 statement, and if it's all right with Your 6 Honor, they could start now. 7 JUDGE VITTONE: Yes. 8 MR. MADDUX: Good morning, Judge 9 Vittone, Ladies and Gentlemen. As Ed said, 10 I'm Jim Maddux from our Directorate of 11 Standards and Guidance here in OSHA. And on 12 behalf of OSHA I'd like to welcome you to 13 this informal public hearing on the proposed 14 clarification of remedy for violations of 15 requirements to provide personal protective 16 equipment and train employees. 17 This hearing is an important step 18 in providing additional clarity about 19 employers' duties to provide training and PPE 20 for each of their employees when required. 21 The development of a clear, accurate, and 22 complete public record is a critical part of BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 11 1 the rulemaking process. And your 2 participation and contributions are greatly 3 appreciated. 4 Let me assure you that OSHA will 5 fully consider your comments, testimony, and 6 recommendations as the Agency develops its 7 final standard. And I'm sure that we all 8 share the same goal of protecting employees. 9 To provide the background for the 10 proposed rules, under the OSH Act, OSHA has 11 the authority to issue citations and propose 12 penalties for each violation of a duty 13 imposed by a standard or regulation. 14 For example, a requirement that a 15 machine be guarded allows separate citations 16 for each machine that does not have the 17 proper guarding. 18 Likewise, the trenching standards 19 shoring and shielding requirement is violated 20 by each unprotected trench. A recordkeeping 21 requirement is violated each time the 22 employer fails to record an employee's injury BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 12 1 or illness. 2 Although the Agency has this 3 authority to issue citations on a per- 4 instance or violation-by-violation basis, it 5 is used only in limited circumstances. It is 6 our long-standing policy to reserve this 7 authority only for particularly flagrant 8 cases involving willful violations. 9 The purpose of issuing per-instance 10 violations in such circumstances is to 11 provide an adequate incentive for employers 12 to correct their occupational safety and 13 health practices and increase the impact of 14 OSHA's limited inspection resources. 15 Under OSHA's per-instance or 16 egregious policy, a number of criteria are 17 considered in deciding to issue these 18 citations. And the decision is reviewed by 19 the regional and national offices of OSHA, 20 OSHA's assistant secretary, and the Solicitor 21 of Labor. OSHA's egregious policy directive 22 was adopted in 1990, and since that time the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 13 1 Agency has used this authority about 130 2 times over that 18 year period. By way of 3 contrast, OSHA has issued hundreds of 4 thousands of other citations in the same time 5 period. 6 An example of egregious conduct 7 warranting per-instance citations arose in 8 the Ho case. There a building owner named 9 Eric Ho hired undocumented Mexican employees 10 to remove asbestos without providing any of 11 them with respirators or other required 12 protective equipment. 13 He also did not provide any 14 training on the hazards of asbestos removal 15 or proper work practices. 16 About a month after the work 17 started, a city inspector shut it down 18 because of the asbestos exposure. 19 Nonetheless, Ho surreptitiously continued the 20 project, requiring the employees to work at 21 night behind locked gates. 22 The secretary issued per-instance BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 14 1 citations to Ho for respirator and training 2 violations. OSHA's asbestos standard 3 required employers to provide respirators and 4 ensure that they are used, and to institute 5 an asbestos training program for all 6 employees and ensure their participation in 7 the program. The citations charged separate 8 violations of these requirements for each of 9 the 11 employees involved in the work. 10 The Occupational Safety and Health 11 Review Commission refused to assess penalties 12 against Ho on a per-employee basis. 13 Acknowledging that Ho was one of the worst 14 employers the Commission has had come before 15 it, it nonetheless held that per-employee 16 citations were not permissible because of the 17 wording of the asbestos standard. 18 Rather than impose a duty requiring 19 employers to train and provide respirators to 20 each employee, the Commission held that the 21 standard was worded only to require an 22 employer to have a training program, and BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 15 1 generally to provide respirators to its 2 employees. 3 The language of this standard 4 addresses employees in the aggregate, the 5 Commission said. And it makes no difference 6 whether one or all 11 of Ho's employees were 7 not provided or using respirators. Upon 8 further appeal, the Fifth Circuit Court of 9 Appeals affirmed the Commission's decision. 10 OSHA strongly disagrees with the 11 Commission's decision in the Ho case and 12 believes that all of its training and 13 personal protective equipment standards place 14 a duty on employers to provide training and 15 protection to each and every employee covered 16 by the relevant standard. 17 The duty is inherent in the nature 18 of the standard and is not affected by minor 19 differences in the wording of each standard. 20 The hazard effects employees individually, 21 therefore, the employer is required to 22 protect each employee individually. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 16 1 In the wake of Ho and several other 2 Commission decisions that followed its 3 approach, OSHA undertook a review of all of 4 its PPE and training requirements. OSHA 5 found that some of the standards explicitly 6 place the duty on employers to ensure 7 training for each employee. Violations of 8 these standards may be cited on a 9 per-instance basis, even under the Ho 10 approach. 11 However, some standards, like the 12 asbestos standard, are phrased in terms of 13 training programs for employees. It is 14 possible that, following Ho, the Commission 15 might refuse to impose per-employee 16 violations for these standards. 17 Therefore, OSHA has undertaken this 18 rulemaking to provide additional clarity and 19 consistency regarding the individual duty 20 that employers have to each of their 21 employees when complying with OSHA's training 22 and PPE requirements. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 17 1 The proposed rule provides this 2 consistency and clarity in two ways. First, 3 it proposes a new section to Subpart A of 4 Parts 1910, 1915, 1917, and 1918, and to 5 Subpart C of Part 1926. 6 These new sections affect OSHA's 7 general industry, construction, shipyard, 8 long shoring, and marine terminal standards. 9 The sections contain language expressly 10 stating that PPE and training requirements 11 impose a separate compliance duty for each 12 employee. 13 Second, the rule revises the text 14 of training and respirator requirements for 15 several standards, including the asbestos 16 standards when the existing language might be 17 susceptible to Ho-type interpretations. OSHA 18 wishes to stress the limited nature of this 19 rulemaking. OSHA has not changed any 20 substantive requirements already imposed by 21 its standards. It remains OSHA's position 22 that for each of the standards revised out of BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 18 1 this rulemaking, employers are already 2 required to provide training and PPE for each 3 of their employees. 4 The proposed revisions do not 5 require employers to provide any new or 6 additional PPE, including respiratory 7 equipment, or provide training that is not 8 already required. 9 The proposal, therefore, imposes no 10 new costs or duties on employers. Rather, 11 the purpose of the proposal is to add clarity 12 and emphasize the employer's responsibility 13 to provide protection to each employee. 14 Finally, it should be clear that 15 the proposal has no affect on OSHA's policy 16 for issuing instance-by-instance violations. 17 In particular, the proposal would not require 18 OSHA to issue citations on a per employee 19 basis. That decision would continue to be 20 made on a discretionary basis in accordance 21 with OSHA's egregious policy. 22 To sum up, the importance of public BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 19 1 participation in this phase of the rulemaking 2 cannot be overemphasized. The rule which we 3 will be discussing is still in the proposal 4 stage. It should not be considered OSHA's 5 final determination or position on the issues 6 involved. 7 The purpose of this informal public 8 hearing is to provide a forum for a thorough 9 discussion of the proposed standard, and to 10 receive testimony and additional evidence to 11 assist OSHA in developing a final standard 12 that reflects the best available and most 13 current information. 14 Further opportunities for hearing 15 participants to introduce evidence and 16 argument will be provided during the 30-day 17 post-hearing comment period. I would also 18 like to note that OSHA has added additional 19 supporting materials containing economic data 20 and inspection statistics into the docket for 21 this rulemaking. 22 Thank you for your attention. At BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 20 1 this time Bill Parsons will make his 2 statement about construction, and then we 3 will answer any questions that you might have 4 about the proposal. 5 MR. PARSONS: Thank you, Jim. Good 6 morning, Judge Vittone, ladies and gentlemen. 7 As the director of the Office of 8 Construction Standards and the Directorate of 9 Construction, I'd like to reiterate that the 10 proposed rule provides clarity and 11 consistency. 12 The proposed sections of the 13 proposed rule do affect and are applicable to 14 OSHA's construction standard. The sections 15 contain language expressly stating that PPE 16 and training requirements impose a separate 17 compliance duty for each employee. OSHA has 18 not changed any substantive requirements 19 already imposed by its construction 20 standards. 21 It remains OSHA's position that for 22 construction standards, as for other industry BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 21 1 standards revised under this rulemaking, 2 employers are already required to provide 3 training and PPE for each of their employees. 4 Thank you. 5 JUDGE VITTONE: Mr. Baird. 6 MR. BAIRD: At this time, Your 7 Honor, I'd like to mark and move for the 8 admission of Mr. Maddox's and Mr. Parson's 9 statements. 10 As you might be aware, OSHA has 11 moved to an Internet docketing system at 12 regulations.gov, and while that system has 13 many advantages, one disadvantage is each 14 exhibit number is quite long, which includes 15 the docket number. 16 The docket number for this 17 proceeding is OSHA20080031, and each exhibit 18 would have a discreet number appended to that 19 docket number. For the purposes for this 20 proceeding, with your permission, I'll just 21 refer to the final four digits of each 22 exhibit number. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 22 1 JUDGE VITTONE: That's fine. 2 MR. BAIRD: So I will request 3 permission to mark Mr. Maddox's statement as 4 Exhibit 71 and Mr. Parson's statement as 5 Exhibit 73, and have them admitted into the 6 record. 7 JUDGE VITTONE: They'll be made a 8 part of the record. Thank you very much. 9 (Exhibit Nos. 71 and 73 were 10 marked for identification and 11 received in evidence.) 12 JUDGE VITTONE: Anything else, Mr. 13 Baird? 14 MR. BAIRD: That's it. 15 JUDGE VITTONE: A couple of 16 housekeeping matters. One, water is fine, 17 coffee is not. Cokes, potato chips, popcorn, 18 no. Water is fine, if you want to drink 19 water during the course of the hearing. 20 After we go through the witnesses 21 and I call on the participants for 22 questioning, usually the OSHA panel goes BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 23 1 last. Is that what you intend, Mr. Baird? 2 MR. BAIRD: Yes, Your Honor. 3 JUDGE VITTONE: Okay. So we'll 4 call on the people in the audience first to 5 do their questioning, and then we'll ask the 6 OSHA panel if they have any questions. 7 All right. Our first witnesses are 8 Mr. Holliday and Mr. Matuga from the National 9 Association of Home Builders. 10 MR. BAIRD: Your Honor, if I might. 11 I think at this time people from the audience 12 should be offered an opportunity to question 13 the OSHA panel. 14 JUDGE VITTONE: Oh, I'm sorry. I'm 15 getting a jump ahead of myself here. Sorry, 16 gentlemen. 17 Okay, does anybody have any 18 questions for the OSHA panel? My fault. 19 Yes, sir. Would you come to the 20 podium and identify yourself please? All the 21 participants -- I'm sure you've all been 22 through this drill, so please come to the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 24 1 podium and identify yourself each time you 2 come up. Go ahead. 3 MR. SAPPER: Thank you, Your Honor. 4 Good morning. My name is Art Sapper. I'm an 5 attorney with the law firm of McDermott Will 6 & Emery. I'm going to be presenting 7 testimony this afternoon after lunch on 8 behalf of the Chamber of Commerce of the 9 United States. 10 I have only a few questions. The 11 first for Mr. Maddux. Mr. Maddux, on page 4 12 of your written testimony you say that 13 following Ho, the Commission might refuse to 14 impose per-employee penalties for violations 15 of these standards. 16 I take it then that you'd agree 17 that the affect of this proposal, if put into 18 final form, would be to increase the number 19 of per-employee penalties, right? 20 MR. MADDUX: No. 21 MR. SAPPER: It would not? 22 MR. MADDUX: No, I think that all BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 25 1 we're trying to do is to preserve our current 2 authority to issue employee-by-employee 3 penalties. 4 MR. SAPPER: But there would be 5 per-employee penalties on occasions that are 6 not now permitted by the Ho decision, right? 7 MR. MADDUX: I guess that's 8 possible, but I don't see any increase in the 9 total number. 10 MR. SAPPER: No necessary increase? 11 MR. MADDUX: No. 12 MR. SAPPER: But a possible 13 increase? 14 MR. MADDUX: I guess it's possible, 15 yes. 16 MR. SAPPER: Okay. And on page 5 17 you say the proposal therefore imposes no new 18 costs or duties on employers. I take it you 19 mean no new compliance costs. Is that 20 correct? 21 MR. MADDUX: Yes, that's correct. 22 There are no new equipment or training BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 26 1 requirements. 2 MR. SAPPER: Thank you. My next 3 question is for Mr. Burt. Mr. Burt, has the 4 Agency estimated the increase in possible 5 penalties as a result of the proposal? 6 MR. BURT: No, it has not, because 7 as Mr. Maddux stated we do not view this as 8 any fundamental change in our policies in 9 this respect. 10 MR. SAPPER: And I understand that 11 new economic data has been submitted into the 12 rulemaking record. Could you please briefly 13 characterize that for me? 14 MR. BURT: Yes, for the aid of OSHA 15 and any other participant in the hearing who 16 would like quantitative information about the 17 number of citations in this, which is 18 quantitative information on the extent of 19 respirator, PPE use, we introduce documents 20 that might be helpful. 21 MR. SAPPER: What kind of economic 22 data does that constitute? BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 27 1 MR. BURT: Basically, economic 2 analyses of the respirator and PPE rules, and 3 surveys of the extent of respirator use and 4 of the extent of PPE use in U.S. industry. 5 MR. SAPPER: And what kind of 6 change as a result of this proposal does the 7 economic analysis portend, or analyze, or 8 predict? 9 MR. BURT: Our economic analysis is 10 still what it is in the proposal. We 11 anticipate no costs. 12 MR. SAPPER: Thank you very much, 13 Your Honor. 14 JUDGE VITTONE: Thank you, Mr. 15 Sapper. Anyone else have any questions for 16 them? Yes, ma'am. 17 MS. BOR: Good morning. I'm 18 Victoria Bor, counsel to the Building and 19 Construction Trades Department of the AFLCIO. 20 Just a few questions. You state in 21 the Federal Register Notice, and Mr. Maddux, 22 you stated this morning, that the intent of BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 28 1 this proposal is to make clear that in every 2 instance in which a standard requires 3 employers to follow practice of providing 4 training or PPE, that that obligations runs 5 to each employee. And I just want to clarify 6 one thing. 7 You've proposed a new language, a 8 new section for each of your general industry 9 and industrial sector standards that states 10 that interpretation. And then you've 11 proposed specific language for some of your 12 substance-specific standards. 13 My question is this. There are 14 other standards that require PPE and that 15 require training that you have not proposed 16 to modify. Is it correct that the new 17 section applies to all of your PPE and 18 training requirements whether or not you're 19 making specific changes in the 20 substance-specific provisions? 21 MR. MADDUX: Yes, that's exactly 22 right. What we've done is to put in the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 29 1 general requirement for each of the parts so 2 that it's clear that all of the PPE and 3 training requirements are treated the same. 4 And then we've gone in and sort of 5 selectively changed a few of them that we 6 think are most susceptible to a Ho-type 7 interpretation. 8 MS. BOR: Thank you. I also have a 9 couple of questions about your compliance 10 policy. Again, you said there was no intent 11 here to change your egregious penalty policy. 12 Do you expect that this is going to change 13 the way in which compliance officers collect 14 evidence when they conduct an inspection? 15 MR. MADDUX: No, not at all. 16 MS. BOR: A number of commenters 17 have expressed concern that the changes will 18 lead overly zealous compliance officers to 19 issue per-instance citations in every 20 situation in which an employee is denied PPE 21 or is inadequately trained. And I want to 22 ask you a couple of questions about that. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 30 1 Is it up to a compliance officer to 2 make the final charging decision after an 3 inspection? In other words, is it up to the 4 compliance officer to decide whether 5 citations will be issued on an instance- 6 by-instance basis? 7 MR. MADDUX: Oh, no, not at all. 8 Of course, as it is with any sort of an 9 inspection, it all begins with the compliance 10 officer that is there, that is kind of our 11 eyes, and ears, and boots on the ground at 12 the facility. And they observe conditions 13 and collect evidence that's relevant to any 14 safety and health violations that may be 15 there. 16 If the compliance officer believes 17 that there may be an egregious case, that 18 that potential exists, then they need to, as 19 you pointed out, collect more evidence to 20 help support those assertions. That case is 21 then reviewed by his or her supervisor at the 22 area office to decide whether or not the case BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 31 1 is worth moving forward. If they decide that 2 that is the correct approach, then it is 3 reviewed at the regional office by both OSHA 4 representatives and by our solicitors. 5 If there is still agreement that 6 this is a worthwhile case, then it is brought 7 into the national office where it is reviewed 8 by the appropriate enforcement office and the 9 national solicitor's office. And if it is 10 still deemed to be of merit, then it is 11 reviewed by the assistant secretary or the 12 deputy assistant secretary, who makes the 13 final determination. 14 MR. JAMES: Excuse me. Along with 15 the Solicitor of Labor. 16 MR. MADDUX: Yes, of course. 17 MS. BOR: Thank you. And just to 18 circle back to a statement you made earlier, 19 you've now described many layers of decision 20 making and many layers of supervision. Do 21 you expect or intend the proposed language 22 changes to have any impact on how those BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 32 1 decisions are made? 2 MR. MADDUX: No, not at all. 3 MS. BOR: Okay. Mr. Burt, I'd like 4 to ask you a couple of questions about the 5 economic impact analysis. In the Federal 6 Register notice, OSHA states that it's 7 determined under Executive Order 12866 and 8 the Regulatory Flexibility Act, that the 9 proposal will not have any significant 10 economic impacts on the regulated community. 11 And as I understand your answer to Mr. 12 Sapper's question, the additional information 13 that you put in the record has not changed 14 that conclusion. 15 I have a couple of questions about 16 the analysis that's required under Executive 17 Order 12866 and the Regulatory Flexibility 18 Act. Starting with the Executive Order, is 19 there anything in the Executive Order that 20 requires OSHA to examine the costs to an 21 employer of failure to comply with a standard 22 as opposed to the costs of complying with a BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 33 1 proposed standard? 2 MR. BURT: I would have to say that 3 that is just not crystal clear. I'm sorry. 4 Exactly -- I think some interesting issues 5 sometimes arise where the sole purpose of a 6 regulation is to increase compliance, both 7 with OMB and with respect to Office of 8 Advocacy and SBA. We argue that that is not 9 the case here because this does not represent 10 a change. 11 This is simply continuing a policy 12 that already exists. That's the core of our 13 position there. 14 MS. BOR: Well, let me ask you a 15 more specific question. I asked you about 16 the costs of noncompliance, but let me ask 17 you very specifically about the penalty costs 18 of noncompliance. Is that something that you 19 understand to be part of what the Executive 20 Order requires you to consider in looking at 21 the impact of a rule? 22 MR. BURT: I would answer in two BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 34 1 parts. We certainly have never done so nor 2 has someone objected we have failed to do so. 3 And two, technically, from the viewpoint of 4 the Executive Order, a penalty is a transfer 5 from an employer to a government. This is 6 not to say it might not need to be accounted 7 for in some circumstances, but it's not a net 8 cost to the economy. 9 MS. BOR: Let me ask you the same 10 question with respect to the Regulatory 11 Flexibility Act. Again, is it your 12 understanding that that statute requires OSHA 13 in conducting an economic impact analysis to 14 consider the costs of employers for failing 15 to comply with the requirements of a 16 standard. And specifically, I'm sorry, the 17 penalty costs of failure to comply? 18 MR. BURT: It does not explicitly 19 call for that in any way. What it might call 20 for, again, the word cost is sometimes a 21 little ambiguous. And it chiefly talks about 22 costs and significant impacts. So it's a BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 35 1 difficult issue as to how one would approach 2 that issue in the Regulatory Flexibility Act. 3 MS. BOR: Has OSHA ever done so? 4 MR. BURT: No. It has not done so, 5 and no one has objected to it. 6 MS. BOR: Thank you. 7 JUDGE VITTONE: Thank you, Ms. Bor. 8 Anyone else have questions for the panel? I 9 don't see any hands. It's a tall podium. Or 10 this is a short chair. 11 Okay. Now we will go to the 12 participants. Mr. Holliday and Mr. Matuga. 13 Am I pronouncing that correctly, I hope? 14 This table over here to my left, please. 15 Would you be careful to speak 16 directly into the microphone so that will 17 make sure that the court reporter picks up 18 all of your testimony. Please identify 19 yourselves and who you represent. 20 MR. MATUGA: Certainly. Good 21 morning, OSHA panelists, Judge Vittone, and 22 guests. By way of introduction, my name is BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 36 1 Robert Matuga. I am the assistant staff vice 2 president for Labor, Safety and Health for 3 the National Association of Home Builders, 4 and to my left here is our association's 5 regulatory counsel, Mr. Andrew Jackson 6 Holliday. You can just call him A.J., if you 7 like. 8 On behalf of the National 9 Association of Home Builders, we appreciate 10 the opportunity to participate in this public 11 forum and to further comment on OSHA's 12 proposed clarification of remedy for 13 violation of requirements to provide personal 14 protective equipment and train employees. 15 I appear before you today to 16 highlight the impact that changes to OSHA 17 regulations have on the homebuilding 18 industry. 19 The National Association of Home 20 Builders is a building trade association 21 representing 235,000 member companies 22 nationwide. Our membership consists of BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 37 1 builders, remodelers of single family homes, 2 townhomes, apartments, and condominiums, as 3 well as thousands of specialty trade 4 contractors. 5 A vast majority of NAHB's members 6 are classified as small businesses, and our 7 members employ approximately seven million 8 people nationwide. NAHB's builder members 9 will construct about 80 percent of the new 10 housing units projected in 2008. 11 I'd like to start by saying that 12 worker safety has always been, and will 13 continue to be, of high importance to the 14 homebuilding industry. 15 NAHB maintains a strong presence in 16 the field of occupational safety and health 17 by working with OSHA in the development of 18 outreach programs, the publication of 19 educational materials, and providing safety 20 training for the homebuilding industry. NAHB 21 is steadfastly committed to improving the 22 safety and health of the homebuilding BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 38 1 industry labor force. 2 However, NAHB is concerned that 3 this proposed rule will increase employer 4 liability excessively on a per-employee basis 5 for broad reach of noncompliance with OSHA 6 personal protective equipment and training 7 standards, and that the proposal does not 8 contain any limitation on circumstances where 9 citations can be issued on a per-employee, 10 per-instance. 11 The proposed rule merely states 12 that violating a single standard "may be 13 considered a separate violation" for each 14 employee covered by the standard. The 15 addition of this proposed language in 16 1926.20.F1 and 1926.F2 does not reflect or 17 clearly state OSHA's intent to only issue 18 separate violations in severe cases of 19 flagrant or willful violations. 20 NAHB believes that this language is 21 just too broad and it will keep employers 22 guessing as to when they might be cited and BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 39 1 how many citations that OSHA can issue 2 because the Agency does not indicate under 3 what circumstances per-instance, per-employee 4 penalties may be cited. 5 This unconstrained authority leaves 6 open the possibility that OSHA will use 7 per-instance, per-employee penalties in every 8 instance where there is an alleged violation 9 that affects more than one employee rather 10 than just egregious citation cases, those in 11 which the employer has knowingly and 12 flagrantly disregarded its legal 13 responsibilities for the safety and health of 14 its own employees. 15 We believe that unless OSHA 16 includes language in the rule to limit per- 17 employee, per-instance citations when they 18 can be issued, this proposal will have a very 19 large economic impact or effect on a very 20 large number of small businesses, which would 21 require OSHA to further evaluate. 22 OSHA has determined that citing BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 40 1 employers on a per-instance, per-employee 2 basis for violation of its standards is an 3 integral part of its overall compliance 4 strategy and serves to deter employers from 5 flagrantly violating safety regulations. 6 In addition, the Agency believes 7 that the resulting large aggregate penalties 8 improve the efficiency and effectiveness of 9 the agency, and increase the impact of OSHA's 10 limited enforcement resources. 11 However, NAHB believes that 12 excessive use of the heightened penalty will 13 diminish its deterrent effect as firms come 14 to believe that they will be cited under it 15 regardless of what they do. Although OSHA 16 may have indicated its intent to follow the 17 existing guidelines for issuing per-instance, 18 per-employee violations, which is currently 19 outlined in the directive CPL02-00-08 or 20 CPL2.80, handling of cases to be proposed for 21 violation-by-violation penalties, which is 22 also known in layman's terms as the egregious BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 41 1 penalty policy, we have not found any written 2 statement of this intent that OSHA plans on 3 following this policy. And in fact, this 4 guideline is not even mentioned in the 5 proposed rule or its preamble. 6 Although NAHB does not necessarily 7 recommend wholesale incorporation of 2.80 8 into the proposed rule, the egregious penalty 9 policy has several crucial protections from 10 inappropriate and unjustified usage by the 11 Agency. 12 NAHB believes including some of the 13 explicit restrictions from this policy in the 14 rule would eliminate or reduce the economic 15 impacts on small businesses in the 16 homebuilding industry. 17 NAHB believes that OSHA must 18 clarify when an employer may be cited on a 19 per-instance, per-employee basis, and NAHB 20 strongly urges OSHA to limit per-employee, 21 per-instance penalties to only egregious and 22 flagrant violations. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 42 1 OSHA's egregious penalty policy 2 identifies those conditions which normally 3 constitute a flagrant violation of the OSH 4 Act or OSHA regulations such that violation 5 by violation handling may be appropriate. 6 NAHB believes that OSHA should limit 7 per-instance, per-employer penalties to only 8 circumstances surrounding the OSHA violations 9 that meet the following criteria. 10 1. The violation is willful. 11 Meaning if there is a violation in which the 12 employer knew that a hazardous condition 13 existed but made no reasonable effort to 14 eliminate it, and in which the hazardous 15 condition violated a standard regulation or 16 the OSH Act. 17 2. The employer had actual 18 knowledge of the specific serious worksite 19 hazard. 20 3. The employer nevertheless 21 intentionally or through plain indifference 22 made no reasonable effort to eliminate the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 43 1 known violation and either (a) the violation 2 resulted in worker fatalities or large number 3 of injuries, or (b) the employer's conduct 4 amounts to clearly bad faith effort in the 5 performance of its duties under the OSH Act. 6 NAHB also believes that OSHA must 7 clarify the language for actual knowledge 8 used in the compliance directive 2.80. OSHA 9 should limit knowledge of a hazardous 10 condition to only circumstances where an 11 employer was -- 12 1. Aware of the requirements of 13 the OSH Act or the existence of the 14 applicable standard or regulation, and -- 15 2. Aware of a condition or a 16 practice and violation of those requirements 17 and did not abate the hazard. 18 Additionally, on job sites where 19 there is more than one employer, we believe 20 that there may be ambiguity in the proposed 21 language as to which employer may be cited. 22 Therefore, NAHB believes that OSHA should BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 44 1 clarify the language that per-instance, per- 2 employee citations and penalties will only be 3 issued to the employer who has failed to 4 provide PPE or training to each of his own 5 employees. 6 NAHB further believes that each 7 employer is always responsible for the safety 8 and health of their own employees, and each 9 employer has the specialized and firsthand 10 knowledge of how to protect their own people 11 and run their operations safely. 12 Requirements of actual knowledge 13 and failure to correct will make the 14 per-violation, per-employee doctrine 15 essentially inapplicable to anyone but the 16 workers' own employer anyway. 17 Finally, NAHB urges OSHA to follow 18 the Advisory Committee on Construction Safety 19 and Health Recommendation on the proposal 20 clarification of remedy for violation of 21 requirements to provide personal protective 22 equipment and training. The ACCSH reviewed BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 45 1 and considered this proposal on May 15, 2008 2 and the advisory body recommended that the 3 Agency adopt the proposed standard, and 4 further recommended that OSHA limit the 5 application of the per-instance, per-employee 6 penalties to only egregious or flagrant 7 violations. 8 Again, we believe it is important 9 to specify the appropriate circumstances in 10 the rule when a per-employee, per-instance 11 citation may be issued or else it can be read 12 as very broad grant of authority regardless 13 of OSHA's present intentions. 14 Later staff could view the policy 15 very differently, and without limitations to 16 the rule they would be free to apply it very 17 differently, as well. 18 In summary, placing restrictions on 19 the applicability of per-instance, per- 20 employee citations will not undermine the 21 deterrent nature of the enforcement action 22 and could substantially reduce the economic BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 46 1 affects to small businesses and entities, and 2 therefore, NAHB strongly urges OSHA to limit 3 per-instance, per-employee penalties to only 4 egregious violations where an employer has 5 knowingly and flagrantly disregarded its 6 legal responsibilities for safety and health 7 of its own employees. 8 Once again, we thank you for the 9 opportunity to share our concerns with you on 10 this proposal, and we are certainly here and 11 happy to answer any questions you may have at 12 this time. Thank you. 13 JUDGE VITTONE: Thank you, sir. 14 May I have a showing of hands, please? Who 15 wants to question Mr. Matuga? That's a 16 first. I see none. You won the lottery 17 today. 18 MR. BAIRD: Your Honor, at this 19 time I would move to have Mr. Matuga's 20 written testimony marked as Exhibit 74 and 21 entered into the record. 22 JUDGE VITTONE: It will be made a BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 47 1 part of the record as Exhibit 74. 2 (Exhibit No. 74 was marked for 3 identification and received in 4 evidence.) 5 JUDGE VITTONE: Does the OSHA panel 6 have any questions? 7 MR. MADDUX: Yes. 8 JUDGE VITTONE: For the record, 9 just identify who you are, please. 10 MR. MADDUX: Jim Maddux from OSHA. 11 In your comments and again in your testimony 12 you essentially are urging us to open up our 13 egregious policies and adjust them somewhat 14 to be slightly more restrictive. 15 And in one of those changes you 16 suggest that it should only be used in 17 situations where the hazard has already 18 resulted either in large numbers of injuries 19 or at least apparently one or more fatality. 20 And this would preclude the use of 21 our egregious policy for our injury and 22 illness recordkeeping standard, which has BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 48 1 been one of the uses to which we have used 2 it. 3 And there's been, of course, a 4 longstanding issue about the accuracy of 5 these records. I think just a couple of 6 months ago there was a congressional hearing 7 about the accuracy of the records, and this 8 would seem to be an approach that would limit 9 one of the enforcement tools that we've used 10 to help ensure their accuracy. 11 What should we do, do you think, if 12 we give up that policy to kind of replace it 13 and help make sure those records are 14 accurate? 15 MR. MATUGA: I think what our 16 comment was is that if the employer shows a 17 bad faith in its duties to comply with the 18 OSH Act, that the Agency would be well within 19 its right to issue multiple citations per 20 employee, per instance. I think that our 21 comment was that that would amount to the bad 22 faith of the employer's duties. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 49 1 MR. HOLLIDAY: We would be 2 concerned if this were the employer's first 3 citation for bad records, but an employer who 4 consistently keeps bad records is in a 5 different position. 6 JUDGE VITTONE: Thank you. Any 7 other questions from the OSHA panel? 8 MR. HOLLIDAY: Judge, I wonder if I 9 might add a remark here. 10 JUDGE VITTONE: Okay, Mr. Holliday. 11 MR. HOLLIDAY: Thank you. 12 JUDGE VITTONE: I assume it will be 13 brief. 14 MR. HOLLIDAY: Andrew Holliday. I 15 just wanted to remind the panel that January 16 20, 2009, there will be a new administration. 17 Shortly thereafter there will presumably be a 18 new Secretary of Labor under a new OSHA 19 administrator. And the administrator who 20 sets policies, as far as I understand it, can 21 change the egregious citation policy with the 22 stroke of a pen. This does not have the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 50 1 force and effect of law, and it is not 2 reviewable. 3 Employers would feel much more 4 secure and much more comfortable with a 5 regulation like this if the policies that 6 have been laid out as the consistent 7 limitations and the consistent strategy of 8 national review and egregious violations only 9 were present in the law, rather than in 10 Agency intention. That's what we're looking 11 for. 12 JUDGE VITTONE: All right. Thank 13 you. Any response to that from the panel? I 14 see none. 15 Thank you, gentlemen. I appreciate 16 your time today. 17 Mr. Hirsch, Associated Building 18 Contractors. Mr. Hirsch, identify yourself 19 please and who you represent. 20 MR. HIRSCH: Yes, my name is Robert 21 Hirsch. I'm the director of legal and 22 regulatory affairs for Associated Builders BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 51 1 and Contractors. 2 JUDGE VITTONE: Thank you. You may 3 proceed. 4 MR. HIRSCH: Thank you, Your Honor. 5 Good morning. On behalf of the Associated 6 Builders and Contractors, I want to thank the 7 Occupational Safety and Health Administration 8 for holding this hearing today and for the 9 opportunity for ABC to appear here today to 10 testify. 11 As I said, my name is Robert 12 Hirsch. I'm ABC's director of legal and 13 regulatory affairs. I come here today with 14 more than 30 years of safety and other 15 regulatory experience, including having 16 served more than six years as an enforcement 17 attorney at the Interstate Commerce 18 Commission. I believe my experience has 19 given me firsthand insight of the essential 20 role that safety regulations play. 21 More importantly, my experience has 22 given me a firsthand appreciation of the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 52 1 interplay and balance that needs to exist 2 between a regulatory enforcement and the 3 achievement of regulatory objectives. 4 As ABC stated in our written 5 comments, ABC and its members are strong 6 proponents of workplace safety. ABC also 7 conceptually supports the NPRM's two stated 8 objectives. 9 One, to make clear that whenever an 10 OSHA standard requires an employer to provide 11 personal protective equipment or training to 12 employees, the employer must do so for each 13 employee who is subject to the requirement. 14 And, two, to clarify that employers 15 who demonstrate, I emphasize, flagrant 16 disregard for safety and health may be 17 subject to a separate penalty for each 18 specific violation. 19 As a preliminary matter in our 20 written comments, ABC advised that we agree 21 with U.S. Chamber's position that OSHA may 22 not have the authority to do what has been BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 53 1 proposed. I understand that the Chamber will 2 be testifying later today and will discuss in 3 detail its concerns in that regard. For 4 purposes of this testimony therefore, I will 5 not get into that issue and will instead 6 focus solely on the other grounds for ABC's 7 opposition to the revised regulatory language 8 that OSHA has proposed to adopt. 9 Specifically, while the preamble to 10 the NPRM, as well as the news release 11 announcing the proposed rule, advised that 12 OSHA intends to issue citations on a per- 13 employee basis only to employers who are 14 flagrant violators, that clearly is not what 15 the proposed regulation says. 16 As currently drafted, the 17 language -- and I'm specifically talking 18 about what affects construction -- as 19 currently drafted, the language of proposed 20 Section 1926.20(f)(1) merely states that 21 "each failure to provide PPE to an employee 22 may be considered a separate violation." BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 54 1 And likewise, proposed Section 2 1926.20(f)(2) states only that each failure 3 to train an employee may be considered a 4 separate violation. 5 Contrary to OSHA's claim that only 6 flagrant violators will be impacted by the 7 proposed changes, there is nothing in the 8 proposed rule that would prevent OSHA from 9 treating all PPE and training violations in 10 the future as separate violations. This is 11 of grave concern to ABC. 12 Contrary to what some may want the 13 public to believe, the achievement of safety 14 in the workplace and the imposition of a form 15 of strict liability and force for technical 16 and regulatory noncompliance are not 17 synonymous. 18 However, efforts to eliminate the 19 carrot can only pose only the stick 20 philosophy or pervasive, and there is a 21 significant likelihood that the proposed rule 22 will as a result have a number of unintended BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 55 1 consequences unless it is revised. 2 OSHA's resources are finite. 3 OSHA's enforcement resources will be best 4 focused on the true bad actors. The vast 5 majority of employers are making every effort 6 possible to provide their workers with safe 7 working environments. 8 It is important not only for OSHA 9 to acknowledge this publicly from time to 10 time, but also for OSHA to ensure that its 11 enforcement policy continues to recognize and 12 differentiate between the good faith efforts 13 of employers to comply and those instances 14 where good faith efforts do not exist. 15 In ABC's written comments, we 16 identified a number of potential cost 17 consequences we believe the proposed rule 18 will impose. In addition to what we 19 discussed in our written comments, there are 20 several other potential consequences from the 21 proposed rule that ABC is also concerned 22 about. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 56 1 Merit shop contractors are 2 constantly defending themselves against 3 organized labor's ongoing efforts to prevent 4 merit shop contractors from participating in 5 the marketplace. Many of labor's efforts are 6 packaged under the guise of promoting safety. 7 One such activity is the corporate 8 campaign where a union seeks to tarnish or 9 otherwise undermine an employer's reputation 10 through the publication of conflated or 11 distorted information about the employer. 12 Typically, this includes publishing 13 misleading information about an employer's 14 OSHA compliance record. 15 The ability of OSHA to cite 16 employers as a result of the proposed rule on 17 a per-employee basis for any violation in the 18 future, regardless of the nature or 19 seriousness of the violation, would 20 obviously, albeit inadvertently, play right 21 into the hands of these types of attacks, 22 thereby contributing to and aiding in these BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 57 1 unfair attacks. 2 A similar union tactic utilizes 3 local laws backed by labor that are 4 euphemistically known as responsible 5 contractor ordinances. These ordinances 6 impose a range of qualification criteria, 7 including regulatory compliance criteria 8 intentionally designed to prevent merit shop 9 contractors from bidding on projects or from 10 winning a project. 11 While conceptually such ordinances 12 can be beneficial, their objective has been 13 to provide a means by which legitimate safety 14 programs of employers can easily be miscast 15 in order to disqualify merit shop 16 contractors. 17 For example, a responsible 18 contractor ordinance currently being 19 considered in St. Louis provides a good 20 example of how the proposed rule could easily 21 have unintended consequences if it is not 22 revised. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 58 1 Section 2 of that proposed 2 ordinance would, among other things, require 3 in relevant part that the contractor and all 4 of its subcontractors performing work on a 5 city project must be able to establish that 6 within the past two years it has not been 7 fined, cited, penalized by any local, state, 8 or federal agency. Under this law, a 9 contractor would be summarily disqualified 10 merely for being cited and with no regard 11 having been given for whether the citation 12 had merit. 13 A slightly less egregious but 14 equally onerous law was enacted by a county 15 in Pennsylvania. 16 Under that law, a contractor will 17 be disqualified if during the previous three 18 years it had been found in violation of any 19 other law relating to its business, including 20 an OSHA standard. 21 Another proposed Pennsylvania 22 ordinance would require the safety violations BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 59 1 to have been willful. There are a multitude 2 of responsible contractor ordinances that 3 have been enacted or which are pending around 4 the country and which have been patterned 5 after one of the above examples. 6 Why is this relevant? It's 7 relevant because OSHA's standard stated 8 premise for the proposed rule was in effect 9 to let the penalty fit the crime. In other 10 words, according to OSHA, the proposed rule 11 was necessary to enable OSHA to cite flagrant 12 violators of the PPE standard on a per- 13 employee basis. 14 While ABC may agree with this basic 15 premise, we cannot support the regulatory 16 language as it has currently been proposed. 17 Unless revised, the current proposed language 18 would give OSHA, as well as state and local 19 governments, and organized labor, the ability 20 to apply or to use the rule in a manner that 21 OSHA has expressly stated is not its intent. 22 That concludes my formal testimony. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 60 1 I want to again thank OSHA for the 2 opportunity to testify today. I would be 3 happy to answer any questions you may have. 4 JUDGE VITTONE: Thank you, Mr. 5 Hirsch. Let me have a showing of hands 6 please. Any questions by any of the 7 participants? I see none. Thank you. 8 Any questions from the OSHA panel? 9 MR. MADDUX: Yes, Mr. Hirsch, your 10 written comments referenced additional cost 11 concerns described by the Utility Contractors 12 Association. The utility contractors have 13 not submitted any further comment. 14 MR. HIRSCH: I understand that. 15 MR. MADDUX: So I'd just like to 16 ask you if in your post hearing comments you 17 would make sure that you address any of those 18 additional concerns. 19 MR. HIRSCH: I will. Yes. 20 MR. MADDUX: Thank you. 21 MR. PARSONS: Mr. Hirsch, I have 22 one quick question for you. You spoke of BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 61 1 negative potential consequences. Do you 2 foresee any positive potential consequences 3 of this proposed rule? 4 MR. HIRSCH: I think it could be 5 positive to the extent that you specifically 6 apply it to the flagrant. I don't think 7 anybody is really upset. And when you look 8 at the fact pattern that existed in Ho, I 9 think clearly if I were in your shoes I would 10 have been frustrated, too. 11 I think the problem, and Mr. 12 Holliday I think put his finger on it, we're 13 not as concerned about the current state of 14 affairs. What we're really concerned about 15 is what may happen next year. 16 And the truth of the matter is that 17 what we're really concerned about is that 18 safety becomes politicized much more so than 19 it has been in recent years. 20 The fact is that employers are 21 making an effort. Now, clearly there are 22 going to be some companies that are not going BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 62 1 to care, and you should by all means go after 2 them. But when companies are making a good 3 faith effort, they ought to be recognized for 4 that. It is impossible, as much as anybody 5 would like to see, to prevent accidents from 6 happening across the board. By their very 7 nature, they will happen from time to time. 8 The real problem that you have -- 9 and I'm not talking about the giving of the 10 PPE -- what we're really talking about is the 11 training. And I've seen firsthand in terms 12 of my experience both here in construction, 13 as well as in the transportation community, 14 countless times where somebody, an 15 enforcement official, has gone out to a 16 worksite and asked the question of an 17 employee as to whether you were trained. And 18 the answer was no, when in fact they had been 19 given ample training. 20 Our concern is the fact that, who 21 are you going to believe at that particular 22 point? And one of the things that we pointed BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 63 1 out, and this was a concern that NUCA had as 2 well, in the way the regulation is being 3 written is there are no specific details to 4 give employers a clear understanding and 5 appreciation in terms of what type of 6 documentation they need to demonstrate that 7 training has been given. 8 I think if you look at it from the 9 standpoint of putting yourselves in our shoes 10 so we know exactly what the rules of the game 11 are ahead of time, I think you're going to 12 really do a lot to go out and promote the 13 type of compliance that you're seeking to 14 achieve. 15 JUDGE VITTONE: Thank you. Any 16 other questions? Thank you, Mr. Hirsch. We 17 appreciate your time today. 18 MR. BAIRD: Your Honor, at this 19 time I'd like to move to mark Mr. Hirsch's 20 written testimony as Exhibit 75 and have it 21 admitted into the record. 22 JUDGE VITTONE: It will be marked BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 64 1 as 75 and made a part of the record. 2 (Exhibit No. 75 was marked for 3 identification and received in 4 evidence.) 5 JUDGE VITTONE: Ms. Bor and Mr. 6 Trahan -- Chris Trahan. I'm sorry, Ms. 7 Trahan. Building and Construction Trades 8 Department. Good morning. Please identify 9 yourselves for the record and who you 10 represent. 11 MS. TRAHAN: Good morning. I'm 12 Chris Trahan, an industrial hygienist with 13 the Building and Construction Trades 14 Department, AFLCIO. 15 MS. BOR: And I'm Victoria Bor, 16 counsel to the department. 17 MS. TRAHAN: We have a few bits of 18 information we wanted to share with you. 19 Just personally I wanted to talk a little bit 20 about training. I'm trained as an industrial 21 hygienist. I started my career as a 22 compliance officer up in New York for the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 65 1 state program up there. And one of the 2 things I do now is manage training programs 3 where we try to help move training out 4 through the building trades. 5 And in that regard, we wanted to 6 just go on the record saying that the 7 Building Trade supports what OSHA is trying 8 to do here to clean up some of the language 9 which disallowed you to apply a policy to 10 really bad actors. 11 It's very clear, I think, what the 12 standards mean that when training or personal 13 protective equipment is called for, it's 14 required for all employees on the job. And 15 each employee should be issued the 16 appropriate equipment. 17 And that we really don't know that 18 the changes in the language are necessary, 19 but in lieu of the Review Commission's 20 decision with the particular language 21 variations, you know, we do support what 22 you're doing, and do hope that it does apply BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 66 1 where it needs to apply. 2 And I just want to reiterate, too, 3 that I believe that in the field people do 4 understand this, that you don't have a 5 training program that you actually train all 6 employees. And issuing PPE to one or two of 7 the employees is not really compliance with 8 what's intended by OSHA in these regulations. 9 I'm just looking over our notes. I 10 don't want to repeat the same things over and 11 over again. 12 So, I just want to raise one more 13 issue. Or two more issues. We wanted to 14 ensure that the intent here and to, you know, 15 give our support to OSHA, and that the intent 16 doesn't just cover respirators and asbestos 17 work, but it does, in fact, cover personal 18 protective equipment where it's needed on the 19 job as a whole. And training where it's 20 required in particular OSHA standards as a 21 whole. 22 And just the last thing I wanted to BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 67 1 mention was that in my understanding, ACCSH 2 did not issue a recommendation to OSHA in 3 that May 2008 meeting when this subject was 4 discussed. 5 OSHA asked ACCSH and passed this 6 proposed regulation by ACCSH as you're 7 obligated to do. And ACCSH did submit a 8 motion that was put forth with two parts. 9 And the two parts were, you know, we 10 recommend that OSHA go ahead and publish 11 this, but only applied to egregious 12 situations. 13 But then my understanding is that 14 motion was modified to eliminate the 15 reference to egregious situations because I 16 believe that some folks on the ACCSH 17 Committee understood that it's the Agency's 18 responsibility to do enforcement and to 19 conduct inspections, and to apply the 20 standards under their policies. 21 So my understanding is that final 22 motion came out of that May meeting that did BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 68 1 not include a reference to limiting or 2 recommending that OSHA limit things to the 3 egregious side. 4 So, unless we have anything else, 5 that's it for now. 6 MS. BOR: Actually, just to follow 7 up on Chris's point, to that respect I'd like 8 to submit to the record the minutes of the 9 May 15th meeting of the Advisory Committee on 10 Construction Safety and Health. 11 And on page 9 of these minutes, it 12 states that although a motion was made to 13 recommend that OSHA incorporate its egregious 14 penalty policy into the standard, that part 15 of the motion was defeated. 16 And the recommendation that was 17 passed by the Committee was simply to adopt 18 the proposal as published in the Federal 19 Register. 20 JUDGE VITTONE: I may be the only 21 one in the room, but what does that acronym 22 mean? BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 69 1 MS. BOR: Oh, I'm sorry. It's the 2 Advisory Committee on Construction Safety and 3 Health, ACCSH. 4 JUDGE VITTONE: ACCSH. 5 MS. BOR: Right. 6 JUDGE VITTONE: Okay. Thank you 7 very much. Anything else? 8 MR. BAIRD: Judge, perhaps at this 9 time I'll just move to have that marked as 10 Exhibit 76 and admitted into the record. 11 JUDGE VITTONE: All right. It'll 12 be made a part of the record. It's the 13 minutes of the 15-16 May 2008 meeting of the 14 Advisory Committee on Construction, Safety, 15 and Health, apparently held here at the 16 Department of Labor in Washington, D.C. 17 (Exhibit No. 76 was marked for 18 identification and received in 19 evidence.) 20 MS. BOR: And Your Honor, this is 21 currently in OSHA's docket as OSHA-2008- 22 0013-0022. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 70 1 JUDGE VITTONE: Now it's in twice. 2 Showing of hands, please. Any questions for 3 this panel? You're making it easy on me 4 today. 5 Any questions from the OSHA panel? 6 Thank you. Appreciate your time. 7 According to the agenda we're 8 supposed to break for lunch. Is Mr. Killough 9 here? K-i-l-l-o-u-g-h? 10 MR. KILLOUGH: Yes, sir. 11 JUDGE VITTONE: All right, Mr. 12 Killough, would you come forward? Are you 13 prepared to go forward now, sir? 14 MR. KILLOUGH: Yes, I am. 15 JUDGE VITTONE: Good. Take one of 16 these chairs, please. Identify yourself for 17 the record and the organization you're 18 representing. 19 MR. KILLOUGH: My name is Ken 20 Killough. I am representing the National 21 Maritime Safety Association today. 22 Our group's members represent the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 71 1 long shoring and marine terminals industry, 2 Regulations 1917 and 1918. Our members work 3 East Coast, Gulf, and West Coast of the 4 United States, and we move about 90 percent 5 of the nation's cargo in short terms, and we 6 load and unload cargo ships. 7 We found the proposed rule does not 8 clarify if OSHA intends all PPE and training 9 regulations be considered flagrant to impose 10 the per-employee penalties. Our maritime 11 regs 17 and 18 are vertical regulations, and 12 our training and PPE regs are pretty much 13 scattered about those two standards where we 14 don't have specific sections. 15 We would prefer to see OSHA not add 16 new paragraphs to a training or PPE section. 17 We'd rather see the addition or the change 18 into the affected rule to lessen confusion. 19 The employer payment for PPE was handled the 20 same way, and we just don't find it's clear 21 in how people now interpret those rules. 22 The rules need to be clear for OSHA BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 72 1 compliance officers, and also the safety 2 professional working in the field. Sometimes 3 new people, people not well versed in OSHA, 4 do not have the proper interpretations and, 5 you know, citations can sometimes just get 6 lost. 7 We had a citation issued in the 8 maritime industry on the west coast last year 9 involving our training regulation, which is 10 power and industrial truck, which was 11 referenced into the maritime regulations. 12 And there was a citation issued 13 that was really merely an issue over the 14 interpretation of the reg. It was not a 15 single act by the employer to say that was 16 wrong or it was not an act of an employee or 17 a group of employees. But really it 18 challenged the reg in its entirety. 19 And we're working now to get that 20 corrected through the Maritime Advisory 21 Committee on Safety and Health. But we could 22 see changing your training regulations to the BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 73 1 way that we work in the maritime industry. 2 Our training programs are set up 3 for hundreds and thousands of people. And if 4 this regulation is not clear, we can see that 5 maybe getting interpreted in the wrong ways 6 and creating some drawn-out administrative 7 procedures, and actually maybe even 8 increasing litigation. 9 JUDGE VITTONE: Anything else, sir? 10 MR. KILLOUGH: Those are my 11 comments. 12 JUDGE VITTONE: Thank you very 13 much. May I have a showing of hands, please? 14 Any questions for Mr. Killough? I see none. 15 Any questions from the OSHA panel? 16 Sir, thank you for coming today. 17 Mr. Sapper? 18 MR. SAPPER: Good morning, Your 19 Honor. And thank you. My name is Art 20 Sapper. I appear today on behalf of the 21 Chamber of Commerce of the United States. 22 The Chamber urges OSHA to forego BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 74 1 adoption of the proposed rule, not because it 2 doesn't address a problem, but because OSHA 3 has no authority to adopt it. Our position 4 is basically that stated in our written 5 comments, so I'll touch on only a few points 6 here. 7 The stated purpose of these 8 amendments is not to impose, to change, or to 9 clarify substantive compliance duties of 10 employers. The preamble for it rightly 11 acknowledges this. 12 For example, it acknowledges that 13 no one has ever suggested that a standard 14 imposes compliance duties as to fewer than 15 all the employees that it covers, or that 16 OSHA could not require abatement as to all 17 employees. 18 The preamble also correctly states 19 that there is no substantive compliance 20 difference between the current noise training 21 standard, which requires training of "all 22 employees," and the proposed version, which BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 75 1 would require training of each employee. 2 So the only purpose of the proposed 3 amendment is to make possible the assessment 4 of per-employee penalties. But that is not 5 within OSHA's rulemaking authority. OSHA's 6 only statutory rulemaking authority is to 7 state the substantive compliance duties of 8 employers. 9 Nothing in Section 38 or Section 6B 10 of the OSH Act authorizes OSHA to say 11 anything in standards about remedies, or 12 penalties, or to manipulate the wording of 13 standards for the purpose of affecting 14 sanctions. 15 The proposal is therefore not 16 authorized by the OSH Act, and it is actually 17 forbidden by the Administrative Procedure 18 Act, the sanctions provision of the 19 Administrative Procedure Act, which deprives 20 agencies of the authority to prescribe 21 sanctions. So, a review in court will strike 22 this down. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 76 1 I might add a comment was made by a 2 member of the OSHA panel that OSHA has noted 3 that various executive orders and statutes 4 don't appear in OSHA's eyes to require an 5 estimate of the increase in penalties. 6 And the most likely reason for that 7 is that neither the president nor Congress 8 believes that OSHA has the authority to even 9 regulate that point. And that's why they 10 don't require any economic estimates on it. 11 There is also some thought in the 12 preamble that the rule changes are merely 13 interpretive. Well, if that point is 14 relevant, it's just wrong. If the Review 15 Commission is right, that a standard's 16 wording can affect per-employee penalties, 17 and if the proposal would change the wording 18 to alter that result, and thus increase 19 penalties, then the change in wording is 20 substantive. 21 Stated another way, if the Agency 22 is right that its proposal is "remedial," BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 77 1 then it cannot possibly be interpretive. 2 There is a problem here as I said 3 before. So the question is what should the 4 Agency do now? 5 The origin of the problem before 6 the Agency is the idea that language in a 7 standard as opposed to the substantive 8 "condition" or "practice" that the standard 9 forbids or requires can authorize per- 10 employer penalties. 11 That is a fallacy, but the fallacy 12 did not originate with OSHA. It's not a 13 problem of OSHA's making. The fallacy 14 originated with the Review Commission. And 15 that tells us where this problem needs to be 16 fixed -- at the Commission. 17 The answer to the problem is not 18 for OSHA to assert power that it lacks. 19 Mark Twain once said, "Always do 20 right. This will gratify some people and 21 astonish the rest." 22 Too often government officials have BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 78 1 asserted power knowing that their legal 2 authority is dubious or weak. It would set 3 an example that citizens and officials alike 4 would admire and emulate if this government 5 agency were to say, we shall not act. Our 6 authority is lacking or weak. There is 7 another way. 8 Thank you, Your Honor. 9 JUDGE VITTONE: Thank you, Mr. 10 Sapper. Any hands for Mr. Sapper? I see no 11 questions. 12 OSHA panel, any questions? Mr. 13 Burt. 14 MR. BURT: I just wanted to clarify 15 an earlier answer, which was not an attempt 16 to interpret the Executive Order or the Reg 17 Flex Act, but a statement that we had not in 18 the past taken account in penalties. 19 JUDGE VITTONE: Any response? 20 MR. SATTER: No. I know that the 21 gentleman is not an attorney, and I 22 understand his qualification. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 79 1 JUDGE VITTONE: Thank you, sir. 2 Moving right along. Mr. Kojola, Ms. 3 Rhinehart. 4 MR. KOJOLA: After the actions of 5 the last week it seems that the growth 6 industry in this town will probably be 7 attorneys as usual, economists certainly, and 8 accountants. 9 (Laughter) 10 JUDGE VITTONE: Would you identify 11 yourselves please? 12 MS. RHINEHART: Sure, my name is 13 Lynn Rhinehart. I'm associate general 14 counsel at the AFLCIO. 15 MR. KOJOLA: And my name is Bill 16 Kojola. I'm the industrial hygienist for the 17 AFLCIO. 18 MS. RHINEHART: Good morning. 19 We're happy to be here to talk briefly about 20 OSHA's proposed rule. We will, in fact, be 21 very brief. In our view this is a very 22 simple, and straightforward, and narrow BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 80 1 rulemaking, so much so, frankly, that there's 2 not that much to say about it or, as we've 3 seen, ask questions about this morning. 4 We should be clear about what this 5 rulemaking is about and is not about. And as 6 we understand it, and as I believe the 7 comments of the panel this morning confirmed, 8 this rulemaking is really not about OSHA's 9 overall enforcement policy. 10 It's not really about the egregious 11 policy or OSHA's penalties. It's not about 12 OSHA's inspection procedures. It's not about 13 how OSHA makes charging decisions. It's not 14 about employer defenses to OSHA citations. 15 As we understand it, this 16 rulemaking is simply about codifying OSHA's 17 longstanding view that when training or 18 personal protective equipment is required 19 under an OSHA standard, employers are 20 required to provide that training or personal 21 protective equipment to each employee exposed 22 to the hazard. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 81 1 Even though this has consistently 2 been the Agency's view, OSHA apparently has 3 decided to do this rulemaking to make 4 employers' compliance obligations crystal 5 clear and remove any doubt about those 6 obligations. 7 We think this will be beneficial in 8 ensuring that employers understand their 9 obligations, in ensuring that workers are 10 given the protection they deserve, and in 11 helping to ensure that OSHA's citations when 12 employers violate these obligations are not 13 struck down by the Review Commission or 14 reviewed in courts because of slight language 15 differences in OSHA's rules. 16 Frankly, we thought these issues 17 were plenty clear, even without this rule 18 because it's hard to see how an employer 19 could be in compliance with OSHA's rules on 20 training or personal protective equipment by 21 providing only some employees exposed to the 22 hazard with a respirator, with personal BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 82 1 protective equipment, or with training. And 2 Mr. Kojola will elaborate on this point in 3 just a minute. 4 Employers are obligated under the 5 OSHA Act to provide each of their employees 6 safe and healthful working conditions, and 7 it's difficult to see how they can accomplish 8 this without providing the necessary training 9 or PPE to each employee who is exposed to the 10 hazard. 11 We did make one suggestion in our 12 written comments for further clarifying the 13 text in the general introductory paragraphs 14 that OSHA is proposing to make part of its 15 overall rules so that it's even clearer that 16 this obligation to provide PPE to each 17 affected employee applies to all types of 18 PPE. 19 As we read the preamble to the 20 proposed rule, there seemed to be a very 21 heavy emphasis on one type of PPE, and that 22 would be respirators. So we proposed some BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 83 1 language to make crystal clear that the 2 obligation to provide PPE to each affected 3 employee refers to all types of PPE, 4 including but not limited to respirators. 5 So, in sum, we support this 6 rulemaking. We think it's a simple, 7 straightforward proposal that does not pave 8 new ground but simply clarifies what an 9 employer's compliance obligations have been 10 all along. We urge OSHA to adopt the 11 proposed rule with our suggested 12 modifications in final form without delay. 13 Now, Mr. Kojola will elaborate on 14 the importance of providing each affected 15 employee with personal protective equipment 16 or training. 17 MR. KOJOLA: Thank you, Lynn. An 18 employer's compliance responsibility to 19 provide required PPE and training under an 20 OSHA standard to each and every worker 21 exposed to the hazard is really abundantly 22 clear. Doing something less than ensuring BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 84 1 that each employee has the required training 2 and PPE will leave some workers unprotected. 3 Items of PPE are individual in 4 nature. If you're a worker exposed to a 5 hazard requiring PPE, you're not protected if 6 only your exposed coworkers have the PPE and 7 you do not. And safety and health training 8 is individual in nature, too. You're not 9 trained merely because your exposed coworkers 10 are. 11 In workplaces, this compliance 12 obligation means that every worker -- not 13 some or most -- must be provided with 14 required PPE and training by the employer. 15 The failure of employers to meet their 16 compliance responsibility for providing 17 required PPE and training to each and every 18 employee will leave unprotected workers at 19 risk of experiencing injuries, illness, or 20 death. 21 I wanted to provide three very 22 simple but clear examples to illustrate our BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 85 1 point. Workers exposed to airborne 2 concentrations of lead in excess of the PEL 3 are required to have respiratory protection. 4 To ensure protection against the adverse 5 affects of inhaling lead, each individual 6 worker exposed to lead in excess of the PEL 7 must have his or her own respirator that has 8 been properly selected and fit tested. 9 Failure to provide a required 10 respirator to every exposed worker can cause 11 permanent nerve damage in those workers 12 inhaling lead who are not provided with a 13 respirator. 14 Let me give you a second example. 15 Workers exposed to cutting hazards when using 16 sharp knives in chicken processing plants, 17 for example, are provided with wire mesh 18 gloves. 19 Unless each worker exposed to the 20 cutting hazard is provided with the gloves, 21 those who are not are subject to experiencing 22 serious and potential disabling cuts to their BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 86 1 hands. 2 And our third example. When 3 workers are exposed to airborne asbestos in 4 excess of the PEL, they are required to 5 receive training that covers the engineering 6 controls, work practices, and clean up 7 procedures the employer is using to control 8 asbestos exposure. 9 Workers not trained in 10 understanding these critically important 11 control methods could perform work in a 12 manner that circumvents these controls, 13 causing exposure to asbestos that could 14 result in the untrained worker developing 15 asbestosis, mesothelioma, or lung cancer. 16 And I think those are very clear, 17 simple examples of what this regulation means 18 and what the clarification language means in 19 demonstrating the necessity to ensure that 20 the employer complies with that 21 responsibility to provide the required PPE to 22 each and every one of their employees. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 87 1 And I'd like to reiterate that it's 2 in that regard that we support OSHA's 3 proposed rule with the modifying language 4 that we submitted in our written comments. 5 JUDGE VITTONE: Anything else? 6 MR. KOJOLA: I think we're done. 7 JUDGE VITTONE: Okay. Thank you. 8 Any questions for this panel? I see no 9 hands. 10 Any questions from the OSHA panel? 11 No questions. 12 MS. RHINEHART: Thank you. 13 JUDGE VITTONE: Thank you. Mr. 14 Egeler? 15 MR. EGELER: Yes. 16 JUDGE VITTONE: Come forward, 17 please. Please identify yourself and who 18 you're representing. 19 MR. EGELER: Good morning. My name 20 is Dan Egeler. I'm assistant general counsel 21 for Con-way. 22 Good morning, Judge Vittone, BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 88 1 panelists, participants, and guests. I want 2 to thank you for the opportunity to 3 participate in this hearing. 4 Con-way is involved in the 5 trucking, transportation, and logistics 6 industry. We have about 25,000 employees 7 throughout the United States. 8 I would first like to state that 9 Con-way adopts and supports the comments 10 offered by the United States Chamber of 11 Commerce as I believe it is an accurate 12 reflection of the state of the law with 13 respect to the legality of the proposed rule. 14 It's well known, OSHA has 15 prescribed duties to employers to provide 16 appropriate PPE and training with respect to 17 PPE. Should the employer fail to comply with 18 the standard, it has violated the duty only 19 once. It hasn't violated it for every 20 employee that failed to comply with the 21 standard, because most often the 22 circumstances are the employee fails. It's BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 89 1 not that the employer fails to provide the 2 training or the PPE to the employee. 3 The proposed rule effectively 4 penalizes the employer multiple times for one 5 infraction. There is no limitation within 6 the language to make it apply to only 7 egregious circumstances as OSHA has 8 indicated. And for that, that's a problem. 9 Give an example. In the 10 transportation industry we have use of a lot 11 of powered industrial trucks. Without 12 getting into a legal dissertation about 13 seatbelts on forklifts, OSHA has taken the 14 position that seatbelts are a form of PPE on 15 a forklift. 16 Some employees absolutely just 17 simply refuse to wear seatbelts on forklifts. 18 The employer can provide all the training 19 necessary. Obviously, provides the PPE 20 because seatbelts are actually attached to 21 the forklift. But employee just simply 22 refused to ear it. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 90 1 And I liken it to just about every 2 state in the Union has a mandatory seatbelt 3 law for vehicles. But the best the states 4 can do -- and here's a penalty that actually 5 is assessed directly to the driver of the 6 vehicle -- but the best the states can do is 7 get compliance of about 85 to 90 percent of 8 people actually wearing seatbelts. 9 The way the proposed regulation is 10 written, with the language as it exists right 11 now, an employer who has a lot of employees 12 using seatbelts on forklifts are going to be 13 faced with the scenario of they're going to 14 be no different than driving their car on the 15 road. Eighty-five to 90 percent will comply, 16 but another 10 to 15 percent will say I'm not 17 going to wear a seatbelt. I don't wear it in 18 my car. I'm not going to wear it on the 19 forklift. 20 And under the proposed regulation, 21 the employee could face a possible multiple 22 number of penalties based upon perhaps 10 BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 91 1 percent of the employees not wearing 2 seatbelts on a forklift. And I give that as 3 an example. 4 Again, without a limitation in the 5 proposed language that limits it to flagrant, 6 egregious, or other pronouns, adjectives, 7 types of circumstances, this language, I 8 think, fails in accomplishing what OSHA 9 wishes it to do. 10 If OSHA is concerned about 11 compliance with the employer, it has already 12 in place mechanisms to encourage employers to 13 comply with the regulation. It already has 14 repeat violations, willful violations, even 15 criminal penalties in those egregious 16 circumstances. And I don't believe that this 17 language helps to clarify as proposed by 18 OSHA. I think, in fact, it actually operates 19 as additional penalties. 20 In sum, if OSHA wishes to codify 21 the rule so that we are talking about 22 flagrant or egregious situations, then this BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 92 1 language that's proposed right now has to 2 change. 3 Because the way you give the 4 literal interpretation to the language as 5 it's proposed is any number of observed PPE 6 failures could result in a citation for each 7 one of those failures. There's nothing in 8 the rule that talks about it being applied to 9 those egregious or flagrant situations. 10 Bad cases make bad law. You know, 11 the OSHA reaction to the whole case is cause 12 for proposed regulation, it just simply is 13 bad language. And I urge OSHA to reconsider 14 the proposed language. And if it wishes to 15 go down a path of accepting or utilizing this 16 language only in the egregious circumstances, 17 then that language change has to be made. 18 And I'd welcome any comments. 19 JUDGE VITTONE: Thank you, sir. 20 Can I see a showing of hands, please? Any 21 questions for the witness? I see none. 22 Any questions from the OSHA panel? BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 93 1 Thank you, sir. 2 MR. EGELER: Thank you. 3 JUDGE VITTONE: Paree Roper. Mr. 4 Roper. 5 MR. ROPER: Your Honor, members of 6 the panel. Good morning, everyone. My name 7 is Paree Roper and I'm the industry 8 specialist for the Public Risk Management 9 Association, otherwise known as PRMA. We're 10 located in Alexandria, Virginia. And for 11 over 30 years we have provided timely, 12 relevant, and practical education and 13 training for public sector risk management 14 professionals. Our organization is comprised 15 of more than 1,800 public entities, local 16 governments of various sizes, budgets, and 17 complexities. 18 PRMA acts as a premier national 19 advocate for the interests of public risk 20 management professionals and their entities. 21 Members of the Public Risk Management 22 Association include most types and sizes of BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 94 1 public entities, some of which are in OSHA 2 plan states, and some of which are not. 3 The proposed rulemaking raises a 4 number of concerns for our member entities. 5 I will focus on three of these concerns in 6 the time remaining. 7 The first concern is that the 8 proposed rule could have a significant impact 9 on the budgets of public entities. Existing 10 rules are clear about an employer's 11 responsibilities. PRMA and its members fully 12 support OSHA's goal of creating safe and 13 healthy workplaces. Our concern is about how 14 large a penalty OSHA can assign for failing 15 to comply with a standard or any component of 16 the standard. 17 Even if the proposed rulemaking 18 does not impose new responsibilities or 19 significant costs upon employers for 20 compliance, it still could have a significant 21 financial impact upon public employers of all 22 types and sizes. PRMA's primary concern BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 95 1 centers around the number of violations OSHA 2 can issue out of any one occurrence. 3 For example, an employer has 1,000 4 employees with respiratory risk, and in the 5 course of establishing its respiratory 6 program, it fails to properly identify and 7 train on a particular hazard. 8 Is this considered one violation or 9 1,000 violations? How many separate 10 penalties could be assessed on any one cited 11 occurrence? If an employer had a prior minor 12 respiratory protection violation, the cost of 13 the potential penalty could become 14 exorbitant. 15 In seeking compliance through 16 excessive penalties, OSHA's new rule could 17 place a burden on public entity taxpayers 18 that outweighs the seriousness of the 19 violation. This potential burden could 20 adversely affect public entities of all 21 sizes. 22 OSHA points out in its discussion BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 96 1 that its penalty policy restricts penalty 2 stacking to egregious cases. In its Notice 3 of Proposed Rulemaking, OSHA points to the Ho 4 case for a particularly flagrant situation. 5 OSHA's argument is that it needs the ability 6 to assess larger penalties or employers will 7 simply choose to ignore employee safety and 8 pay penalties when they are caught. 9 This logic incorrectly assumes that 10 larger penalties will by themselves prompt 11 compliance, and that Congress intended for 12 employers to be subjected to the possibility 13 of millions or even hundreds of millions of 14 dollars in penalties from a single violation. 15 The second concern deals with the 16 lack of due process. PRMA is concerned that 17 OSHA has not considered the full impact of 18 the proposed rulemaking upon an entity's 19 right to due process. The system that 20 permits only 15 days to respond to a notice 21 or lose all rights to review by OSHA, a state 22 regulatory body, or the courts, is less than BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 97 1 adequate. Due process demands much more when 2 the penalties can escalate as quickly and to 3 the levels allowable under the proposed rule. 4 The third and final concern 5 examines the potential effects on states that 6 may want to develop their own occupational 7 safety and health plans. OSHA's proposed 8 rulemaking could serve as a deterrent to 9 states choosing to become an OSHA-planned 10 state because they may be subjecting 11 themselves and their political subdivisions 12 to prohibitive substantial financial 13 penalties for a good faith effort towards 14 compliance. 15 Many public risk managers would 16 like to see their states adopt OSHA standards 17 and add the regulatory compliance argument to 18 their toolbox. However, this rulemaking's 19 impact has the potential of negatively 20 impacting comprehensive OSHA compliance 21 efforts. 22 PRMA appreciates the challenges BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 98 1 faced by OSHA as it strives to protect the 2 safety and well-being of our nation's 3 workers. We support OSHA's desire to provide 4 rules that will create the safest environment 5 possible for public entities' employees. We 6 ask for dialogue so that OSHA may utilize 7 public risk management professionals as key 8 resources in the formulation of policy and 9 protocols. 10 PRMA welcomes the opportunity to 11 establish a go-to relationship as OSHA 12 formulates new regulatory guidelines for the 13 health and safety of the nation's 14 communities. 15 Thank you very much for your time. 16 JUDGE VITTONE: Thank you, sir. 17 Any questions for Mr. Roper? I see no hands. 18 Any questions from the OSHA panel? 19 MR. MADDUX: Yes. First of all, 20 I'd like to point out that the Notice of 21 Proposed Rulemaking was published on August 22 19th with comment due by September 18th, BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 99 1 which is a 30-day comment period, not a 2 15-day comment period as suggested by the 3 presenter. 4 The question that I'd like to ask 5 is in your statement you say that states will 6 be disinclined to develop state OSHA 7 programs, what we call state plans, as a 8 result of this rulemaking. Are you aware of 9 any states that are currently state plans -- 10 there are 26 of them, I believe -- that are 11 reconsidering their state plan status as a 12 result of this rulemaking? 13 MR. ROPER: I am not aware of that 14 at this moment, but our concern is that we do 15 push this as a potential tool for risk 16 managers and for safety and environmental 17 health professionals. And it's something 18 that we would like to see. We would love to 19 see every single state have its own OSHA 20 program. 21 But we're concerned that this rule 22 would, in fact, squash that conversation. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 100 1 MR. MADDUX: Thank you. 2 JUDGE VITTONE: Any other questions 3 for the panel? 4 MR. BAIRD: One other question, 5 Your Honor. Was there any information that 6 you were not able to obtain in the time 7 allowed that you wanted to present to OSHA on 8 this matter? 9 MR. ROPER: No, there is not. 10 MR. BAIRD: Thank you. 11 JUDGE VITTONE: Thank you, Mr. 12 Roper. Ms. Abrams? 13 MS. ABRAMS: Good morning, Your 14 Honor. Good morning, panel and members of 15 the public. 16 My name is Adele Abrams and I am an 17 attorney and safety professional speaking on 18 behalf of the American Society of Safety 19 Engineers. In addition to being their 20 national representative, I am also a 21 professional member of ASSE's construction, 22 mining, and consultants practice specialties. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 101 1 ASSE has 33,000 members across the 2 United States and internationally. And we 3 did previously submit written comments on 4 this. I do not have a separate handout for 5 my oral testimony and will try to be brief 6 here as the cleanup batter on the prepared 7 agenda. 8 With this rule we recognize that 9 OSHA is seeking to harmonize its respiratory, 10 its PPE, and its training provisions 11 throughout the general industry construction 12 and other standards, to state explicitly that 13 the employer must provide each employee an 14 appropriate respirator, for example, and 15 implement programs for each employee. We 16 also understand that this is seeking to 17 correct or clarify the requirements and OSHA 18 citation and enforcement abilities in the 19 wake of the Ho decision. 20 While the need for harmonization of 21 these provisions is clear, and we do support 22 consistency in the language so that there BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 102 1 will not be any confusion, ASSE is concerned 2 that the consequences of these changes may 3 result in unnecessarily punitive actions 4 toward employers whose overall commitment to 5 protecting the health and safety of its 6 workers has been demonstrated. In other 7 words, if you suddenly have a new big hammer, 8 everything may start looking like a nail. 9 No doubt these provisions that 10 you're proposing will strengthen OSHA's 11 ability to fine employers heavily for 12 violations of existing PPE and training 13 standards by exposing them consistently to 14 per-employee penalties. And if these are 15 pursued, each failure to provide PPE or 16 training to a covered worker could constitute 17 a separate violation subject to a penalty of 18 up to $70,000 for each infraction. And this 19 can obviously add up very quickly, and 20 especially have an impact as already heard on 21 some of the small employers. 22 Certainly, the current approach, BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 103 1 even before Ho, had been to group citations 2 into a single violation. And our 3 understanding is that OSHA has appropriately 4 used restraint in application of per-employee 5 citations in the past as evidenced by the 6 criteria in the CPL that has already been 7 referenced by a few of the witnesses. 8 This is not referenced, of course, 9 in the preamble to this rule, and that is a 10 concern that there is no framework within 11 which this would be applied if you read the 12 plain language of the preamble, and the plain 13 language of the standard as it is proposed. 14 We believe that flagrant violators 15 should be subject to egregious penalties. 16 The increased impact of this penalty approach 17 can help deter continued flagrant violations 18 of OSHA standards. The key is though making 19 sure that this is not going to become a 20 uniform enforcement practice. 21 ASSE has been very consistent in 22 its message that OSHA's enforcement BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 104 1 activities need to be aimed most directly at 2 the worst actors and not at those employers 3 whose overall commitment to safety and health 4 has been demonstrated. 5 And so to ensure that OSHA's 6 application of this proposed clarification of 7 its ability to apply citations on a 8 per-employee basis is focused where it will 9 have the most beneficial affect, ASSE urges 10 that the language be included in the final 11 rule to require that an employer's overall 12 management of safety and health risks be 13 taken into account when the determination is 14 being made whether to apply per-employee 15 penalties or whether to group them together 16 into a single citation. 17 Certainly, failure to provide PPE, 18 failure to provide adequate training, whether 19 it be on how to use PPE or other types of 20 training can be an egregious act by an 21 employer and can demonstrate little or no 22 regard for employee safety and health. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 105 1 But in practicality, most PPE 2 violations are largely technical in nature, 3 maybe an inadvertent error by an employee 4 where PPE has been made available, and often 5 they do not result in harm to an employee if 6 it is a short term lapse. 7 Violations can often reflect 8 unintended mistakes in use by employees, even 9 where there has been appropriate training. A 10 supervisor may have a mistake in 11 understanding, or an individual may fail to 12 follow an employer or safety and health 13 professional's best efforts to help it 14 protect that employee. 15 In such cases where the overall 16 intent of the employer is to meet or exceed 17 the OSHA standards and the overall approach 18 in the workplace reflects a commitment to 19 safety and health, the final rule should 20 protect such employers against an arbitrary 21 application of the per-employee egregious 22 penalties. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 106 1 So, again, as many people have said 2 here already, the focus should be on willful 3 and flagrant acts -- those employers who have 4 demonstrated bad faith -- and not on a single 5 error or omission that is not reflective of 6 the overall commitment to safety and health. 7 I think such a clarification would 8 greatly add to employer's confidence that 9 OSHA is not out to penalize 10 disproportionately for violations. 11 The more OSHA can do to ensure 12 employers and the safety community that its 13 enforcement activities are not intended to 14 punish but are to be used as a deterrent, the 15 easier it will be for our members to 16 encourage employers to engage OSHA in 17 positive efforts, such as the alliances and 18 partnerships that we've been involved with at 19 the national and the regional levels. 20 And also, this will encourage 21 employers to again join with OSHA in good 22 programs, like the Voluntary Protection BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 107 1 Program, the Safety and Health Achievement 2 Recognition Program, SHARP. 3 So, we want to keep a positive 4 relationship going with OSHA. And just 5 random and arbitrary use of egregious 6 penalties simply because a rule now enables 7 such use is going to be detrimental to those 8 progressive programs that are already in 9 place. 10 Finally, it is left ambiguous in 11 this rulemaking what effect this 12 clarification would have on multi-employer 13 worksites, especially those in construction 14 where the duty to each employee may be 15 confusing depending upon whether the general 16 contractor or a subcontractor is overseeing 17 provision of PPE or training. 18 And we do urge OSHA to provide 19 clarification in a final rule, preferably 20 that will be consistent with its current 21 approach to the multi-employer worksite 22 policies and the exposed employee provisions. BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 108 1 As always, ASSE pledges its 2 assistance to offer whatever is needed to 3 ensure this rulemaking, as well as others, 4 achieve positive results for safe and 5 healthier workplaces. 6 I'll be pleased to answer any 7 questions you might have. 8 JUDGE VITTONE: Thank you, Ms. 9 Abrams. Any questions from participants? No 10 hands. 11 Any questions from the OSHA panel? 12 Thank you, Ms. Abrams. 13 MS. ABRAMS: Thank you, Your Honor. 14 JUDGE VITTONE: You're welcome. 15 That concludes all of the witnesses who have 16 scheduled to testify today after all this 17 rigorous cross-examination. 18 (Laughter) 19 According to the prehearing 20 guidelines, participants and parties have a 21 30-day period to submit post-hearing comments 22 and briefs. Since this is only taking one BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382 109 1 day, by my calculation those documents would 2 be due on November 5th. Any question on 3 that, Mr. Baird? 4 MR. BAIRD: No, Your Honor. If you 5 would allow, I'll reduce that order to 6 writing and submit it for your signature. 7 JUDGE VITTONE: Sure. I'll be 8 happy to. Anybody have anything they want to 9 raise before I adjourn for today? Nothing 10 from the audience? Anything from the OSHA 11 panel? 12 I'd just like to thank everybody 13 for coming out today to this hearing. As I 14 said, hearings are a very important part of 15 the rulemaking process, and we appreciate 16 your participation in that process. Thank 17 you. 18 Let me thank you also, and I 19 appreciate your time today. Have a good day. 20 (Whereupon, at 11:42 a.m., the 21 HEARING was adjourned.) 22 * * * * * BETA COURT REPORTING www.betareporting.com 202-464-2400 800-522-2382