ACCSH Transcripts: February 17, 2000

Occupational Safety & Health Administration

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ACCSH Transcripts: February 17, 2000

U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
(ACCSH)

Conference Rooms A & B
Holiday Inn O'Hare International
5440 North River Road
Rosemont, Illinois

Thursday, February 17, 2000

P R E S E N T

Advisory Committee Members Present:

Stephen D. Cooper
Executive Director
International Association of Bridge, Structural
& Ornamental Iron Workers

Larry A. Edginton
Director of Safety and Health
International Union of Operating Engineers

William C. Rhoten
Director of Safety & Health Department
United Association of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Industry of the
United States & Canada

Felipe Devora
Safety Director
Fretz Construction Company

Robert Masterson
Manager, Safety and Loss Control
The Ryland Group

Owen Smith
President
Anzalone & Associates

Danny Evans
Chief Administrative Officer
OSH Enforcement Division of Industrial Relations
Nevada Department of Business and Industry

Jane F. Williams
President
A-Z Safety Resources

Michael Buchet
Construction Division Manager
National Safety Council

Advisory Committee Members Not Present:

Stewart Burkhammer
Vice President & Manager of Safety and Health Services
Bechtel Corporation

Stephen Cloutier
Vice President
Safety/Loss Prevention Manager
J.A. Jones Construction

Harry Payne, Jr.
Commissioner
North Carolina Department of Labor

Marie Haring Sweeney, Ph.D.
Chief, Document Development Branch
Education and Information Division
National Institute for Occupational Safety and Health

Staff Present:

Bruce Swanson
Jim Boom
Bob Biersner

A G E N D A

AGENDA ITEM:	PAGE
Welcome, Introductions Michael Buchet, ACCSH, Acting Chair	5
Remarks Charles Jeffress, OSHA Asst. Secretary	8
ACCSH Workgroup Reports:
Process Safety Management Danny Evans, Committee Member	72
ACCSH Business - December Minutes and May Meeting	82
Musculoskeletal Disorders Michael Buchet, Committee Member	90
Fall Protection Robert Masterson, Committee Member	109
Sanitation Jane Williams, Committee Member	111
Open Forum	112

P R O C E E D I N G S

8:05 a.m.

Welcome, Introductions

MR. BUCHET: Good morning. I would like to call this meeting of OSHA's Construction Advisory Committee to order.

I am Michael Buchet from the National Safety Council. I manage the Construction Division there.

And we will go around the room in a minute and have self introductions. And then, we will have the pleasure of the Assistant Secretary for the Department of Labor for OSHA, Charles Jeffress will address us.

And then, unfortunately, he has to race off and recognize some VPP sites which I think we could all take some joy in having him come out here and spend some time with us and then go out and recognize sites for doing commendable jobs in safety.

Thank you for very much for coming and sharing your time and expertise with us.

We will have a public comment period towards the end of the morning.

I understand the weather is going to turn bad. A lot of you who are not used to Chicago, I suggest it would be a wonderful experience if you stay here and get a taste of it.

(Laughter)

MR. BUCHET: But I see people with their track shoes on, heading for the door. So we understand if you got a call from home and they said, the weather is bad in Chicago, it is getting worse here, and you want to come home. We will understand that. And thank you for being here. Okay.

We will go around the table and introduce ourselves. And then, we will do the back of the room.

Would you like to go next, Bruce?

MR. SWANSON: I am Bruce Swanson. I am the Director of Construction for OSHA. And on this committee, I am the Designated Federal Official.

MR. BIERSNER: I am Bob Biersner. I'm an attorney for OSHA.

MR. EVANS: Danny Evans, Chief Administrative Officer of the OSH Enforcement Program.

MR. COOPER: Steve Cooper, Iron Workers.

MR. DEVORA: Felipe Devora, Fretz Construction, general contractors, Houston, Texas.

MS. WILLIAMS: Jane Williams, A-Z Safety consultant.

MR. BUCHET: We might as well finish the head table.

Owen.

MR. SMITH: Owen Smith, painting contractor, Los Angeles.

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

MR. MASTERSON: Bob Masterson, The Ryland Group.

MR. EDGINTON: Larry Edginton, International Union of Operating Engineers.

MR. BUCHET: Charlie, can you start?

(Whereupon, the audience introductions took place.)

MR. BUCHET: Thank you all and welcome.

Charles, Mr. Secretary.

Remarks

MR. JEFFRESS: Thank you very much. And thank you for inviting me. I am delighted that this meeting in conjunction with this Safety Council Conference worked out so well.

Coming in here yesterday, hearing people from the crowd talk to me and thank me for what you all decided to which is to meet here and have the workgroups on Monday and have some folks could sit in to see what kind of work you do, what kind of things you consider, and participate meant a lot to people in this part of the country who do not get to Washington to participate.

So I think it has been a very good decision you made to come here. And it has been very effective. And I commend you on that.

I, like you, am impressed with the conference that is going on here, 1,000 folks from the country for the safety and health conference is impressive. I was delighted with it.

I want to respond to whatever interests and concerns or questions you all have this morning. There are five things on my agenda I will talk about before I get to the questions you have. And then, these may cover some of yours.

So just so you know where I am headed, I am going to talk a little about the budget, the President's budget for 2001 which he has proposed to Congress.

I will mention some about the issues in Congress right now, about the way OSHA and other regulatory agencies issue advice and guidance. I will talk a little about OSHA standards this year and what people are working on. I will talk some about partnerships.

And then, finally, I want to have a conversation with you about how we work together in terms of OSHA and the advisory council. And I will talk a little about those issues.

But let me start first with the President's budget for 2001. To put this into perspective, the President has recommended increases for OSHA for each of the past years that I have been here.

The Congress awarded a 6-percent increase two years ago and an 8-percent increase last year.

And the President is asking for a little more than an 11-percent increase for next year which if Congress agrees would be a 25-percent increase for OSHA over a three-year period which is something I take confidence in what the organization does and appreciation for the importance of safety and health work.

And I am pleased with the support the administration has shown for occupational safety and health.

Within the President's budget for next year, several things I think are worth noting. Of interest to the construction folks I'm sure is that he has included money for a construction data initiative to identify the contractors in the country that have high injury and illness rates.

As you know, we have this in general industry. I have talked with this group in my first meeting with this group about how we could have something in construction similar to what we have in general industry so we can target our inspections to the contractors that are having the highest injury and illness rates.

The President has requested $1 million to begin a national survey to identify contractor by contractor who is having the highest injury and illness rates.

With that information, we would be able to focus our inspections better than we are today.

Given that there are a whole lot of small contractors out there, realistically, this survey should be funded.

We will have focus on larger contractors. We won't get to people under 30 or 40 employees. So it is a first step toward a nationwide system for targeting construction inspections. I feel good about that being included in here.

In addition to the construction data initiative, a significant piece of the budget is for 63 additional compliance officers.

As you know, with the data initiative in general industry, we are able to identify where we most need to be.

We will identify this year 13,000 employers with rates more than twice the national average.

But given the demands in our resources in response to complaints and accidents and fatalities and what not, we will only be able to inspect about 4,000, maybe 4,200 of those 13,000 employers with rates more than twice the national average.

Once we get the construction data, we will have even more work to do in terms of specific inspections with people with high rates.

So the President is asking for 63 additional compliance officers so that we can do more inspections at these high-rate injury and illness work places.

That is on the enforcement side of the house.

On the education, training, compliance assistance side of the house, the President is requesting nearly $2 million for enhancement of the OSHA Training Institute. You heard from the Training Institute yesterday. I would be interested in your observations.

My observation is we need to do a lot more than we are currently doing there. The institute needs more resources. We need to invest in technology so we can deliver these, this training long distance.

And the President is requesting a significant down payment so that we can expand the services at the institute.

Also, on this house, on the compliance assistance side of the house, over the last two years, we have put 44 compliance assistance specialists in area offices. And this will be another -- and this budget includes money for another 35 compliance assistance specialists in local offices across the country.

So there is an emphasis on enforcement. There is also an emphasis on compliance assistance for the 2001 budget in areas, some emphasis on additional research to assist with standards development.

We are looking for money, particularly $28 million, to do the best practices survey in terms of what safety and health practices employers are following today and also to do a survey on health exposures, what types of hazards, health hazards employees are exposed to and what level, what substances are they being exposed to.

The survey was last done in 1980. Safety and health rulemaking since then has been based on the survey. All our health targeting has been based on that. And 20 years is a long time in today's work place. So you need that survey to determine to what extent there are health hazards out there.

So that is the budget, an 11.6-percent increase. The balance between enforcement and compliance assistance, some additional money for the research necessary to set safety and health standards as well, the President has put forward. And I hope Congress will recognize that and pass the budget as it is proposed.

The second area I want to comment on is the way that OSHA and other regulatory agencies provide advice, letters of interpretation.

The Assistant Secretary of Labor testified on Capital Hill before a House committee Tuesday of this week. The House is raising a question or certain members of the House are raising the question: as a regulatory agency, how do you give advice?

When OSHA speaks, do the people see it as advice or do people see it as what we've got to do? Does someone have a choice in terms of making their own decisions when OSHA sends out a letter of interpretation or gives advice?

And it is a complex question. As a regulatory agency, we have a very clear way of setting standards and issuing standards that are requirements for people.

We clearly need to interpret those standards to individual situations on a case-by-case basis. And we do that.

But also, people come to us sometimes asking for advice on safety and health issues that are not covered by any exact standard or any specific rule. They want to know what our advice is on how to proceed.

And we respond to them as well. We need to be in a position to give our best advice to people whether it be a requirement or whether it just be good safety and health advice.

But there is a question about when OSHA speaks, how is it to be taken? And clearly, the work-at-home issue was a classic example of OSHA giving advice to an employer where there was an existing policy that was not a requirement, was not a standard on the area.

And people read that letter as if it were in fact a requirement. And they expect OSHA to go around and inspect homes.

So having withdrawn that letter and taken a lot of comment in January, that letter, I will not have to repeat.

There is a broader question. We are past the work-at-home issue. Clearly, you all understand. I hope everybody understands at this point that OSHA is not going to inspect home offices.

But the broader question really is, how does OSHA give advice? How does OSHA give interpretation letters? When are things -- when should advice be viewed by senior officials as policy?

And this is an area that the Department of Labor is going to be working on. It is not just OSHA involvement. The administration has issues. Other agencies have issues. FAA has issues. EPA has issues.

Any regulatory agency that in addition to setting standards also gives advice has this question as to how do you give advice and be perceived as a requirement?

And we will continue to work on that and raise the question of when should we seek public input on policy. So what are the policies, internal that do not need public input?

When should we label or advise clearly this is advice and not a requirement? When should we label our interpretations as all employers must do this?

Those are reasonable questions that people are asking. And we have a process going on within OSHA to look at different components of this to clarify that.

It is an issue I think for OSHA since you want to talk about it. It is not something that we anticipate getting into this year, but it is a reasonable question for people to be asking.

The other area I want to talk about a little this morning is partnerships. I am delighted with the movement, increasing movement in the construction industry to form partnerships with OSHA.

There was some high-profile ones a couple of years ago where the national office took an interest. There have been a number of local ones across the country.

The model that was developed with the prior organization in St. Louis, the ABC chapter there took the lead on it I think is a very good model in terms of employers taking responsibility and accountability for their own performance for OSHA to verify on some kind of percentage if people are living up to their promises and then enable us to move beyond people who participate in the partnership. We are doing a good job and spend more time on sites with folks who aren't.

That model, we signed an agreement Monday with ABC to implement that same principle with ABC chapters. And actually, before we signed the national agreement on Friday, an agreement had been signed with an ABC chapter on implementing this.

But our goal would be to have local area offices each place across the country enter into partnerships with employers and employees in their area to achieve safety and health protections and safety and health partnerships.

With respect to the ABC agreement, it specifically says while this is the national model for partnerships, nothing would be affected in a local area unless the local ABC chapter and a local area director sat down and tailored it to their particular area needs that they had and signed the agreement that the local level.

And I think that is -- I am encouraged by that. The national model or the national agreement on principle only is effective if the local level employers, employees, and OSHA get together and agree as to what it means in that local area.

I think it is a good model to follow. So I am encouraged and excited about that. And I hope to see that pursued more around the country. So I will be encouraging our area directors to take advantage of that kind of partnership and model.

Another area of partnership that I hope you all have heard Dave Murphy talk yesterday. I was not here to hear myself, but he had come to Washington to meet with me earlier.

He and the St. Paul companies and the University of Wisconsin are still pursuing a curriculum on construction risk management or construction partnership they call it, trying to get this curriculum into schools for training people who will be coming to work in the construction industry, the young designers, the young engineers, the young construction managers as part of their academic training to have a curriculum or a piece of curriculum on construction risk management and safety and health in the construction industry.

I note having talked to some folks in business schools how hard it is to get safety and health in business school curriculums.

They are finding it even within the construction management engineering curriculums it is also not easy to break through to get the faculty to adopt this part of the curriculum.

But they've got a good curriculum. They are making some progress some places. Yesterday, at the vendor booth at the conference here, university folks came up to me and said we like what they are doing, we would like to see it done at Northern Illinois University. And I was encouraged and excited about that. I hope they will get that done.

I have here, in case you all did not get the brochures, I am going to give each of you a pamphlet.

(Laughter)

MR. JEFFRESS: This is not an OSHA pamphlet.

(Laughter)

MR. JEFFRESS: But it is the kind of emphasis on safety and health training and getting it to places it needs to be that I think OSHA needs to be.

So all by means, I hope that you all will look at this and think about it context with the training programs in places that you have contacts, universities and colleges, the places where you could affect what kind of curriculum is taught to the future construction managers and encourage folks doing that teaching to adopt this or something like it as a part of their curriculum.

I think it is an important partnership to be done. It is important. It is one of the things that we can invest in now. Now, it may be off for five or 10 years, but I think it is important to be.

Number four, OSHA standards for this year. I know you all don't care anything at all about standards, but I will --

(Laughter)

MR. JEFFRESS: To the extent that it was clear in the workgroups on Monday, let me share with you a meeting I had recently with the Standards Group within the Construction Directorate as to what we expect to accomplish this year and what is on our agenda to work.

First, of course, is to complete the work on the steel erection. That is very close I think. And very close in bureaucracy terms may be very different than very close in construction terms.

(Laughter)

MR. JEFFRESS: While it is like this conversation we had the last time I think, you know, you do the right text. There is all this other documentation back and forth, analysis and economic effects and everything that has to be done to support it.

I would hope that that OSHA will finish our work on the reg text and provide something to send back to the team, a mutual agreement. We will finish our work by the end of the month.

Hopefully, next month, we will have some kind of agreement. After that, of course, we have to do some economic analysis on the final proposal. OMB will have their 90-day review of it.

So a publication date of mid to late summer is a reasonable expectation even though I expect most of work will be done a lot sooner than that given the other reviews will have to go on. I look for a publication date on by late summer.

Another area where we are going to try something new is signs, signals and barricades. The rules that are currently being followed on highway construction sites involve a code that OSHA has not adopted. Nevertheless, most folks are using it.

In recognition of there is a lot of highway construction going on, a lot of new construction, a lot of maintenance activities going on, it is time for us, for OSHA to get into the same realm as the traffic signaling devices are in.

So we propose a direct final rule on this, this summer where we would without going through a proposal stage, without going through a lot of analysis simply adopt the uniform code that is currently being used and currently recommended by the Department of Transportation, being used for highway contractors and just try it, for once to do a common sense thing quickly.

We will see whether it works or not. Anyone in the country who does not like the uniform code can demand a hearing and can object to OSHA proceeding this way.

And it may keep us from proceeding with a direct final rule. Nevertheless, we are going to try something different and new.

It will be the first time we have done a direct final rule. It is provided for in our procedures. It just has never been tried before, but we will try that on the signs, signals, and barricades code here this summer.

Other things that we are working on this year are things that we expect to have some kind of advance notice this fall or by the end of the year on sanitation.

We have agreed to work internally to get a final draft of ANPR done this fall and get it published this year.

It is subpart (l). It is scaffolding that we have been working on. We will also have an ANPR done on it this year.

We will also be working on the comment that came in, in response to subpart (m) in the ANPR. Do we need to propose any modifications there?

So we -- I intend for us to finish our review and be ready to make some decisions: are there or is there a need for changes in that by this summer?

I cannot tell you exactly when that will be published. But if we decide that we need to make some changes, we've got to make that decision first. Then, we've got to work on what those changes are the wordings and what the proposal would look like.

So I don't know that a publication of a proposal would be done this year, l but I do anticipate policy decisions being made about which areas to pursue in terms of changes to that.

We will also be working on confined spaces, continue work on this proposal that has been out there for some time.

One other area that in addition -- these all will be worked on by the Office of Construction Standards, the health standards group that is not in the Division of Construction, Directorate of Construction, but separate from it.

I have also asked you to undertake a look at noise in construction and have an ANPR on noise in construction out this year for folks to respond to. We need to deal with noise in construction and have never done that.

So in terms of standards that we are working on things that we are doing this year within construction, that affect construction, those are there.

You did not hear ergonomics. You did not hear safety and health programs. A word about those, too, ergonomics, we are committed to continuing educational work on ergonomics and construction. I am committed to a continuing discussion on publishing, distributing with the ACCSH recommendations here.

But in terms of the rulemaking on ergonomics, we will limit the rulemaking this year to general industry. So I don't look for rulemaking, although I do look for us to continue to ask questions, do our agenda, and do education on it.

Safety and health programs, I had said to you earlier much to your happiness that I would proceed with the safety and health program in general industry since they have now -- I think general industry has something out there now.

But as soon as that is completed in general industry, that we would -- that construction would follow right behind it.

I still am committed to that, but the general industry safety and health program standard I am still reviewing at this point with ergonomics out there taking a lot of time for people who are doing analysis of OSHA standards, doing analysis of proposals, doing work on safety and health issues.

It is difficult I think for the system to handle too many controversial things at one time and too many things that require extensive analysis and debate. It certainly would be difficult for us. I know that is difficult for all of us.

So at the moment, I am still reviewing the safety and health program rule for general industry. I have not set a date as to when that will go out.

My commitment to doing construction right afterwards does not change, but you need to know in general industry it has slowed down. It slows down in construction as well.

And the final thing I want to talk about a little is really related to standards, but related to the work of this advisory committee and the work of OSHA.

And it comes up. It came up in the National Advisory Committee Occupational Safety and Health. And I think it applies to this group's work as well.

When I look at what OSHA does and what our work is, we spend about 5 percent of our time in terms of staff time, 5 percent of our resources on standard setting. Ninety-five percent of our people and our time is spent on other things.

Significant enforcement staff. Unlike EPA, EPA can rely on states to do their enforcement.

OSHA, we got 23 states out there that are doing some enforcement, but 29 states and territories, I should say, 29 states around the country. We've got responsibility for private sector enforcement. And we have to do that. And that takes a significant amount of our resources.

We do a lot of education and training. We do a lot of technical assistance. OSHA has administration and information technology support to do. Five percent of our time and effort goes into standard setting.

When I look at what this advisory commission spends your time on, looking at your agendas, you spend 75 to 80 percent of your time on standards, on things you would like to see OSHA do, things you believe are good policies for safety and health.

And I think we have a pretty serious disconnect about what OSHA expects of itself and where we are going to spend our time and resources and where our country expects of us and where you all -- and what you all would like to see us do.

And I think it is worth talking about, you know. What is the right amount of time, what is the right amount of resources for OSHA to be spending on standard setting?

EPA spends about 40 percent of their staff, devotes 40 percent of their staff to standard setting, setting rules and regulations.

And remember, they start out with 18,000 employees. We start with 2,000. So they have a lot of people devoted to regulatory actions and standards setting.

We have relatively few. We have 100 people devoted to this activity.

And a question I would have for you as an advisory committee not of any particular standard, but about an OSHA program for this country, for the United States, how would you rate the importance of putting resources into standards setting versus putting it into enforcement, putting it into compliance assistance, putting it into the other things we do?

If you were designing an OSHA program from scratch today, you know, how would you distribute the percentage of time and resources?

I find it important that OSHA sets standards, that OSHA spends time doing that because even if we cannot make inspections, there could be a common code of behavior that a lot of people will live up to even without OSHA shows up at the work site or not.

There comes training programs and conferences like this. But it is an important activity for OSHA to do.

On the other hand, if OSHA were to transfer 10 percent of its enforcement standards and say, okay, now, we want you to write standards, there will be a cry from people who are concerned that we are taking protections away from workers on the job, that we are not out there making inspections, but I think it is a very difficult choice.

But as I see our advisory committees, you and the other national advisory committees inquiring and asking questions about standards and wanting more from standards and saying, here, OSHA, you should be doing this, this, and this, I don't think we have initially set the capacity up to respond to the expectation that you all have about writing and developing standards.

So I would be interested in having a conversation and listening either today or in a future meeting about what is the expectation of OSHA? What is it that you all would recommend to us?

And if you think 5 percent is right, then we ought talk about the other things the advisory council ought to do, focusing on standards because if you spend 80 percent of your time on standards and we spend 75 percent of our time, some of us will be frustrated here.

(Laughter)

MR. JEFFRESS: So I don't have the answer to the question, but I think there is a disconnect. And I think it is worth talking about today.

So those are my five issues, Mr. Chairman. I appreciate the opportunity to lay them out there. I would be happy to respond to any of those or to anything else.

MR. BUCHET: Owen.

MR. SMITH: Charles, about the ergonomics and the pamphlet that OSHA is going to distribute, I talked to Danny. And he says that he has spoken to you and you have no intention of enforcing that as a rule.

Nonetheless, I hear from a lot of the contractors that that is exactly what is going to happen. And I say, well, the guy says that that is not going to happen. And I believe it.

And they say, well, we believe it, too, but he is only here for a short time.

(Laughter)

MR. SMITH: They say, what happens when the next guy comes along?

And for us, that is a problem. And I was wondering if there is some way you could come up with something that would assure the industry that it is not going to be used as a blackjack to beat them into submission over something, one thing.

(Laughter)

MR. SMITH: And the other, even if that is your intent at the present time, how do you get that message across to all your people?

Yesterday, when we were at the institute, we saw the television between Washington and this office.

And it seems to me like that is a great idea and that if you were to have that set-up in all of your regional offices, then you could deliver the same message to everybody at the same time. And it would all be on the same page.

And I understand that it is a money issue, you know. Since I write payroll checks, that is always a big deal.

But it seems to me that it would be a lot cheaper that way. There may be some initial cost in the set-up, but the long-range deal would probably be much better because if you have to bring people in, you have the transportation, you have to feed them, and you have to put them in a hotel while you do it and then they go back, it just seems that the numbers would work better if you could kind of get that working. And that is information.

MR. JEFFRESS: And on the last point, I said I agree with you 100 percent.

The intent of the technology development at the OSHA Training Institute is to be able to provide a nationwide system so that we can down link from a broadcast from a state or a studio in Washington, so we can down link then to multiple sites across the country.

And if we can get that technology in place, we will be able to do exactly what you say, provide that kind of direct instruction to people around the country through that technology. I agree with you. It is the coming thing. It is not enough.

The secretary tried something new two weeks ago and talked about budget proposal for 2001 which was a web cast for the presentation. And our Internet provider carried it live.

And anyone who that it was going on could get on the web site, I guess is the way to put it, connect their PC at their desk to that broadcast and could listen to the secretary talk about the budget roll-out.

Something similar to that is what -- is where you are headed and we are headed because it makes sense to do that kind of broadcasting.

The technology is still young. If everybody and even within the Labor Department had hooked up to it, we would have crashed the servers and would not have been able to deliver the service I think.

It is still in its infancy in terms of technology, but I think we are headed in that direction. I think that is the right direction to go.

Now, on ergonomics, the material that is published when we publish material in ergonomics will carry a clear statement just like our technical information bulletins on some hazard information bulletins carry, saying this is advisory in nature and that this is -- those citations will be issued based on someone not complying with this proposal or with these recommendations.

We have done that on some work place violence recommendations we issued last April, a year ago. We have done that with our technical information bulletins, hazard information bulletins.

So we will have a very clear statement not only from our folks, but anybody using that document that that document could not be used as a basis for violations.

It is important I think to recognize that the OSHA Act does have a general duty clause. And employers are obligated to provide a work place free from recognized hazards.

When I look at ergonomics in general industry, in 1990, OSHA -- in 1989, OSHA issued guidelines on ergonomics for the red meat industry. There were no citations issued based on violation of those guidelines.

The first ergonomic citations though that were issued were issued based on the general duty clause. And there were some issues in the early 1990s and have been right along even without a standard.

At some point, the industry I think makes a recognition that in fact here are recognized hazards, that there are ways to solve, that people ought to solve, and that people in the industry are solving.

At what point in construction our various MSDs, our various ergonomic hazards have become recognized and accepted and people expect it to solve them, such as if you fail your violation on general duty, I don't have an answer to that question.

We have not citation based on that to date. I do not anticipate any in the near future.

But at some point, will some of these become recognized hazards that people are solving and that people who aren't solving aren't in compliance with general duty, I think we will probably get there.

We may get there before a standard comes out. I do not know. I do not want to predict that.

But I assure you the publication that we put out that this committee produced will have a disclaimer on it and our compliance officers will have clear instructions that citations cannot be based upon this document or the guidelines that come out of OSHA on ergonomics.

General duty citation at some point in the future certainly would be something that folks would look like various general industry acceptance and recommendations of these kinds of hazards.

MR. BUCHET: Thank you.

Mr. Masterson, you might as well keep it there and give it to Larry when you're done.

MR. MASTERSON: Yesterday, we had the opportunity to visit OTI. And it was a very pleasant visit, very enlightening.

One of the things that really stood out in my mind though is that considering what we are looking for that group to be able to do particularly in construction that they only four instructors dedicated to construction.

And, you know, to my way of thinking, probably one of the most important things that OSHA can accomplish is the education of the American work force.

And though there might be some disagreement on content of that training, I don't think there is anybody at this table that doesn't think that it is absolutely necessary that that training material, that education material particularly in light of some of the standards that we are looking at bringing out that there has to be some reinforcement of both the staff for construction as well as the budget for construction.

And, you know, I have not seen any of the exact numbers, but the basic impression that I have been given is that there has been little change in the budget over the last two or three years.

And, you know, hearing as a whole that OSHA has had a 25 percent increase over the last three years --

MR. JEFFRESS: Proposed.

(Laughter)

MR. JEFFRESS: The proposal for next year includes OTI money. Okay.

MR. MASTERSON: I guess my question is, why would not the budget for OTI increase at the same basic percentage considering how important that basic training need is?

MR. JEFFRESS: Right. Actually, the OTI budget has been increasing. It has not increased sufficiently. And that is why the proposal for next year includes substantial money for OTI.

Hank Payne, as you know, came on as the Director of OTI a little more than a year ago. And in recruiting him to come, we specifically recruited somebody with experience in distance learning and new technology and have tasked him with developing a plan for the growth of the institute.

And I am very impressed with what he has developed. And what he gave us this year, we put in the budget. There is money in there to support.

I acknowledge that we need to grow that. Your perception is correct as far as I am concerned. We need to do more there.

We did increase, add a number of staff positions this year to help with the planning for the expansion.

And as I say, money in there and for large facilities. Money in there for more staff. And money for more -- actually money for more technology.

The staff increases because the agency relies a lot on contract assistance and because the training is frequently, we use outside people to come and do the teaching.

The additional monies for instructors can be found a lot on the contract side of things rather than the full-time, permanent staff. And that may be an area we should talk about and visit more.

What your suggestion is we should have full-time staff and not rely on contract assistance to do this kind of training and teaching.

MR. MASTERSON: Well, I think with actual full-time staff, you are going to get more consistency in the delivered product.

I have had mixed results with the outside contractors delivering some of the training.

MR. JEFFRESS: Yes.

MR. MASTERSON: But, you know, it just seems to me that it is such an important area. And it also appears to be way under funded in order to reach a reasonable level of outreach in the construction industry.

In fact, I would ask that the committee and the acting chair at least take under advisement or consideration possibly of appointing a liaison from the ACCSH group to the OTI center.

And I would further recommend that possibly Mr. Rhoten be the --

(Laughter)

MR. RHOTEN: I appreciate your offer, but I want folks to have a --

(Laughter)

MR. JEFFRESS: Well, let me just say, I absolutely agree that OSHA needs to be much more in the business of education and training that the OSHA Training Institute is our lead facility in this regard. And we do need to invest more than we are.

Budget for that next year. And I hope to continue to see this grow.

MR. BUCHET: Thank you.

MR. JEFFRESS: Thank you.

MR. BUCHET: Larry.

MR. EDGINTON: Thank you, Mr. Chairman.

Good morning, Charles. And I am so glad to see you here.

MR. JEFFRESS: It's nice to get out of Washington.

MR. EDGINTON: Many of us can relate to that.

Let me respond to your question about standards a little bit, not so much in terms of addressing the questions that you raised which is one of resource allocation, but rather one of process.

It seems to me and certainly I know with many of my colleagues that oftentimes both in terms of our own activities here or activities that I am involved with, with the building trades federation is that we really have a focus of perhaps falling into a bad habit of having only a focus on new areas which is changing in a world of work in terms of work process, materials, technology, etcetera.

And what we have not done a very good job on is staying abreast of, do the current standards really reflect the world of work today?

And it seems to me at least from where I sit that one of the things the agency has not done a particularly good job of over the last three decades is sort of internalizing the process or developing an internal process to evaluate the ongoing appropriateness of an existing standard.

And one I will use as an example that is something near and dear to my own heart is a subpart (m) for cranes.

That is a standard that is now more than 30 years old. It is not unique amongst construction standards or many general industry standards. And we have not moved forward with it.

Recently, I had an experience talking to a colleague of mine in my own organization who sits on the Exam Committee for Short Crane Operators.

And he is talking to me about the development of new test questions and revisiting existing test questions, some of which had to do with the use of the OSHA standards.

And the Examination Committee decided that they were going to start eliminating questions on the OSHA standards because it was felt that the existing standard no longer fit the needs of the industry, that they were going to focus solely on the ANSI standard as being an appropriate standard for the industry to follow. And they hoped that eventually the agency would catch up.

And, of course, related to that at the last ACCSH meeting, there was a recommendation that the agency consider negotiated rulemaking as a way to perhaps expedite that process.

I guess I would be interested in hearing your comments both on, one, what is the process that the agency uses internally to evaluate the current standards and then secondly, talk a little bit about whether or not the ACCSH request has found its way down to the second floor and what might the status in responding to that.

MR. JEFFRESS: The process, and you all at this point know it as well as I do, the process for evaluating current standards and keeping them up to date is no different than the process for evaluating the need for new standards.

When we either adopt a new standard or change an old one, we have the same test, the same proofs that we have got to meet to show that it is necessary, it is feasible, that it is economically obtainable, and that this is a significant risk that we will be reducing by adopting the new or the changed or the new standard.

So there is not a separate process. The same people that work on the new ones, we work on updating the old ones. The same tests will have to be done for either of them.

And it is a constant struggle, just like we are looking at scaffolding and looking at subpart (m). Those are the standards that we have out there.

We are looking at updating and revising them, but that same staff will be doing something that we might have done before like noise in construction or confined space in construction. We do not have a separate process.

I would agree with you that where there is construction with general industry. OSHA standards are not keeping pace and that the standards process needs significant re-invention, significant change in the way we do business if we are going to keep up to date.

I do not have an answer for that at the moment. Clearly, there are huge amounts of resources to do it would be one response.

A different statutory process for adopting standards might be another kind of response, but I think it is something that we need to look at.

With respect to cranes, I do have an official request, a letter on my desk requesting that OSHA perceive negotiated rulemaking for a crane standard.

I think it is the kind of area that may be appropriate for negotiated rulemaking because the number of people who are involved that are concerned about this.

Like steel erection, it is probably finite to get them in one group together. You can reasonably get a risk assessment committee to represent almost all the interest on crane research, on cranes.

So I do think it is a good category for negotiated rulemaking. I would like to finish the one process before we start another one.

I have not yet respondent to that letter other than saying that I think it is a reasonable candidate. And we need to have some conversations about when we could reasonably start a process like that.

MR. BUCHET: Thank you, again.

Mr. Cooper.

MR. COOPER: Thank you, Mr. Chairman. And good morning, Mr. Chairman.

MR. BUCHET: Good morning.

MR. COOPER: Charles, two things. One on the institute, I have followed the institute since it started. And they have used contract features. Some of the best in the nation have taught there.

And I would think that, I have not monitored that in the last decade, but I think you should really look into the issue of not using some of the best teachers in the nation at the institute.

What I am saying is that they are -- we are on track. And I think they are still on track. And to staff the institute with a larger group of instructors may not be the real answer.

Not unlike all the rest of us, you spend all your day in the classroom. You know it while you are there in the classroom, but it starts to leave you after a decade or so. And you do not know what is happening out there.

And we can discuss in great detail on all those attendance of the advisory board. We are in full agreement that the promise of live training to the area directors is really something that this advisory board wants, at least the ones that were there yesterday.

And there will really be a large factor in getting the message out and getting the training done if you could get hooked up to the PCs, to the telephone. They are talking about going through the Internet. That would be a real plus.

And I know that you have that in your -- you are pushing for some of that in your budget. You have been working on that.

MR. JEFFRESS: I think one of the things that it would enable us to do as well is not only teach or staff, but the staff institute really spends almost all of its time teaching the state and federal compliance officers and state and federal OSHA staff with all the leftover spaces for other people.

I think if we can get the distance learning, we can also expand. We've got to be able to reach and reach out to more private sector people as well.

MR. COOPER: And the issue that Larry Edginton brought up on the standard setting or reply to it. You brought it up, Charles, on the 5 percent.

This advisory committee back in the 1970s when we went through coke oven emissions, we went to Chicago and went to the coke ovens.

And in some cases in steel erection, we did get the Assistant Secretary and maybe one other to come out in Chicago again in the freezing weather and spend three days in the field, redoing steel erection.

But I think the best thing for the standards makers in OSHA is that if they are in the subpart (m) cranes or whatever else that they should spend some time on the job site, three or four days at least, maybe one or two times to look at what they are writing the standard for.

Right now, you weigh the evidence. You listen to industry folks in some testimony, but the person who is writing the standard really should get out and take a look at what is going on out there.

I have attend OSHA meetings sine OSHA started. And we always have a lot of OSHA folks around.

And it would be nice if some of that resource could be brought back in the standards. And then, send a couple of people out there because I think it would be a world of good.

I do not know how you can really write a standard just because in listening to people, it depends on who you listen to.

But you really should. If you have a lot of standards in the meat cutting, they ought to at lest get out into the area and then see how it does. And, of course, construction as well.

MR. JEFFRESS: You have made that suggestion before, Steve. And it is beginning to penetrate. I think I agree with you. I am worried about that, but I think I agree with you.

(Laughter)

MR. COOPER: Well, I am glad you are thinking about it.

MR. JEFFRESS: We hear you.

MR. COOPER: And a little bit about the sanitation standard.

(Laughter)

MR. BUCHET: Mr. Devora.

MR. DEVORA: Thank you, Mr. Chairman.

Mr. Jeffress, as I sit here and listen to the discussion about our visit to OTI, I have to share a thought I had yesterday.

And I think what you have identified is something that my boss identifies sometimes is a management issue where you are spending 95 percent of your time on something versus a division of your time, time resources.

But unfortunately, I think on the flip side of this model and putting on my employer cap here, my contractor hat is that employers, I see a model that we are spending an enormous amount of time and money in either defending or interpreting work that is being done by the standard setting folks and also interpreting the standards that CSHOs are citing us with from what I have identified do not have the experience in some cases and perhaps have been -- are not in a construction situation very often.

And when they do come to a construction situation, the problem that we have as managers is that we do not -- sometimes, it is obvious that they do not understand the conditions that they are in.

They may have just come from a mortuary inspection or some other kind of inspection. And all of a sudden, they are on a 12 story building, writing citations.

That is a management issue with us, the time, the money, the expense that we have to spend interpreting and defending our positions on an area that we feel that we are experts in and that we know our business.

So to me that is an enormous waste of resources that we could be spending more time on our job, the safety.

And therefore, I just want to piggyback on what these guys are saying in terms of how important it is when these CSHOs come on the job site, that they understand what they are looking at. They understand the processes.

And they understand the craft in a specific area that they are looking at and not look at a construction site as a stagnant, you know, static situation where they can go to a standard or regulation and quote the line chapter and verse and cite someone on that.

That is what I came away with from my visit at OTI. I know you are stretched for resources. I know that this is an issue that we battle with in the government.

But I cannot think of a more important area to spend the money and the resources, especially in construction safety than to train these CSHOs as to what they are looking at and what conditions can and may be, and what the variables are involved on a construction inspection.

MR. BUCHET: Jane.

MS. WILLIAMS: Thank you, Mr. Chairman.

Charles, a couple of comments. I do totally support an increase in the standards setting process just from the experiences that we have encountered.

And having said that, I also -- some of my colleagues may not agree with this, but I do support the ACCSH workgroup process and the involvements we have because I see us bringing a unique cross section of experienced construction people in this process where right now is not quite the case with some of the standard setting process that you have.

So I would really like to see the commitments I heard both you and Mr. Swanson make yesterday of utilizing and continue utilizing ACCSH in the manner in which you have to ensure that we end up with some realistic language to the best of our abilities on this committee and before these issues get out and you have additional comments from stakeholders to help minimize the process.

Another one building on the OTI, we had one discussion. And I would like to encourage that you do look at the job descriptions of OTI instructors to ensure that they are instructors and have been experienced and maybe make a written job description title that would assist them in making sure they are focusing on people who really have the level of involvements of training your persons and folks when they do come in there to get the right message out to them when they come on the job site which would address Bill's concerns and his issue.

The other one, as you know, we are working on the Form-170. And with that, comments that the SENRAC proposal and everything might be moving.

We will be talking with Mr. Swanson and Mr. Cooper who co-chairs, of course, and would certainly ask your support in getting that out for construction implementation as soon as we can develop the language that we need to help make it more site specific is what we are trying to do with that issue.

And I am sure we will have some additional dialogues on that.

MR. JEFFRESS: Yes, I do think some standard setting research done recently has pointed out our weaknesses in capturing precise information, what happens in a course, we investigate them, the Form 170 upgrades. It is important.

MS. WILLIAMS: It is quite. And we have some questions as to where it can go and how broad it needs to be so.

So I look forward to the very near future of trying to solve those issues and doing that process for you.

And personally, I would like to say with the January and December you had, I certainly have admired the fact that you can maintain your sense of humor.

(Laughter)

MS. WILLIAMS: In keeping with that, you always know what my final items is going to be.

(Laughter)

MR. JEFFRESS: I thought I hit it this time.

(Laughter)

MS. WILLIAMS: You did. And I was encouraged. But you did make a comment to me once about you would keep your pencil sharp to try to keep moving this.

MR. JEFFRESS: Yes.

MS. WILLIAMS: If I may impose, I would like to just kind of give you a unique pep that sort of might help you do that.

(Laughter)

MR. JEFFRESS: Thank you very much.

MS. WILLIAMS: You will notice it does say OSHA's short-term goal.

So I do appreciate your humor and certainly your attention. And I will not take any more of your time. Thank you.

MR. JEFFRESS: My comment, Mr. Chairman, the Portable Sanitation Association also thoughtfully provided me a desk-top model of -- and I provided, I forwarded that to the Deputy Secretary of Labor in recognition of what ends up on his desk.

We wanted him to have some memento of OSHA's activity in January. And I pointed out to him that we would be going forward with the sanitation rule for construction.

And I wanted him to know that the Portable Sanitation Association gave me that in recognition of going forward with it.

On that issue, when we had the discussion within the department about the sanitation rule, we talked about the fact that this is an issue where we will show the health and safety reasons for it, but there is also an issue of privacy and decency here that our OSHA law does not allow us to use as a rational to support what absolutely is an appropriate reason to go forward.

And the department I think with your support, we will be going forward with this rule.

MS. WILLIAMS: Thank you.

MR. BUCHET: I think the Portable Sanitation Association managed to bombard most of it.

(Laughter)

MR. BUCHET: And the message that I received is you had better stay close to your desk and work hard to get this process moving.

(Laughter)

MR. JEFFRESS: I notice Jim Crease came in late and did not identify himself earlier, but I am sure he will be happy to take credit for all of this.

(Laughter)

MR. JEFFRESS: A couple of personal observations.

MR. EVANS: I just wanted to make some moments.

MR. BUCHET: Go ahead.

MR. EVANS: Charles, going back to your budget indicators that there was $2 million set aside for OTI out of the budget. Are they --

MR. JEFFRESS: Growth money, new money beyond this.

MR. EVANS: And what is it targeted for?

MR. JEFFRESS: $1.5 million is that targeted for improvements and enhancements to enable to deliver the training that we make available through long distance learning, satellites, computers. And some of it targeted for development of new materials.

MR. EVANS: That is $1.5 million to actually buy equipment or is it just to do a study if it is feasible or what?

MR. JEFFRESS: No. Hank has done quite a bit of the study of what is possible. And he believes that we can piggyback onto existing satellite systems that various federal agencies have available.

So we will not have to invent one of our own. We will have to lease some time on these systems, but I hope not to have to invest in major systems ourselves.

We will be having to buy the peripheral equipment necessary to access that system and to download it from that system, but hopefully the major investment of putting up a satellite and using a system, we can borrow somebody else's that is already there.

MR. EVANS: One other question I had is in reference to the budget increase. Is there any budget increase involved for the state-ran OSHA programs?

MR. JEFFRESS: Well, I sure should have covered that, realizing that you are on the council. I apologize for not mentioning it earlier.

The President has proposed not only a cost of living increase, but also a program increase for state OSHA programs and for state consultation programs.

As you know, there has been some years since we have had anything other than money proposed for the states.

And this year, the President has proposed I believe -- I should that number in my mind. I apologize. I believe it is $6 million total for the states, some of which is cola and some of which is program increase. There is new money for states.

MR. EVANS: Well, as you know, there are a number of states across the country that have programs that are probably 75 to 80 percent of those programs are funded by the states.

MR. JEFFRESS: Right.

MR. EVANS: Which when I heard I started with a 50-50 program. And the state of Nevada says we fill the new vacancies, the new positions we have. We are going to be very close to 85 percent from what we receive in Federal OSHA.

We have been very fortunate since I have been here to get a number of new people and money to expand the program.

And I think we have good proof that we are doing some good ones. In 1994 to 1998, we were able to reduce fatalities by half. And the construction industry increased 100 percent.

And if we can continue to do that, I don't know that we can because we are doing everything that we can right now, but it would make it easier for my argument to go to the state legislature and ask for more people if we can say that we are going to be funded through this other person at a 50 percent rate or something. It will probably be close to 20 percent.

MR. JEFFRESS: How many compliance officers do you have for the state of Nevada?

MR. EVANS: I have to stop and count them, but the last count I did, we have about twice what was recommended from the lawsuit that took place.

MR. JEFFRESS: One of the -- and I am grateful and appreciative of states that put in that kind of funding.

I come from a state that put in substantial additional funding as well because I think that is a much more realistic level of safety and health protection for workers in those states where the states put in substantial extra monies.

On the other hand, when I look at states where federal OSHA does enforcement, you know, I don't know what the population is in Nevada, but let's take Kansas which I would bet the populations are not terribly different.

We have got 13 compliance officers for the whole state of Kansas. It is a little hard with -- well, asking for additional resources to ask for more money for North Carolina which has 114 compliance officers when I know the federal folks over there in Kansas.

So I recognize that we are not funding 50 percent of the Nevada program or 50 percent of some of these other state programs.

And the states have expectation based on the law that federal OSHA would fund that.

But when it comes to division of resources around the country to provide protection to workers, our obligation is to look at that result, too.

And as long as we have the kind of inadequate resources that we have for the nation as a whole, you know, there is going to have to be distributed where the needs are the greatest.

And if the states are willing to put up the money, I hate to say it, but that probably means that the state is going to get -- not get the growth funds that other states might because other states have a lot of protections.

Our highest priority has got to be the protection of workers and not the burden of who the money falls in. If the state is willing to put up the money, then that probably means that the extra federal dollars ought to go to states where the workers do not have the protections.

And we have not mentioned states like North Carolina that have put in a lot of money into it.

But to carry out my duty for worker protection, I think I have to put a lot of money where people do not have the protections.

MR. EVANS: We have 15 safety, just safety inspectors in southern Nevada.

MR. JEFFRESS: Right.

MR. EVANS: So there is 1 million people in Clark County. So --

MR. JEFFRESS: Right. Bruce gave me a note to remind me on the OTI a lot of growth is worth mentioning as well.

One of the things that we are looking at right now is the possibility of expanding our training opportunities to more places.

You know, we have worked with 12 educational institutions, regional educational centers across the country where those educational institutions will be prepared to offer some of the OSHA training courses. And those are going relatively well.

We have been approached this past year to consider a Richmond, Washington which is under utilized at present, but has significant training facilities to create another site on the west coast that might be a more training site that we could offer more of the OSHA Training Institute activities out there.

We are evaluating that. And I have been out there a couple of times. Our regional administrators are going out there in March to look at the facility.

And one additional piece of thee growth may well be that we can establish or invest in a west coast site to do more training as well as the training that is put on here in Chicago at the institute.

MR. EVANS: But, you know, to use or try to use materials from OTI. I am glad to hear that some of the money is going to be spent on materials.

It would be a marvelous boom to everybody and not just the construction industry if the library of slides, graphics, videos could be updated and made more available and made faster, made available on the Internet because there are any number of logical advances that make that a marvelous place.

We are glad to hear that some money and effort is going to be spent on that.

And the second thing I would like to comment on is a plug which you will recognize, but to add on to what Mr. Cooper suggested.

And that is in the standard setting process, the OSHA staff get involved with visiting the work sites where the tasks are going to be performed, that you are hoping to regulate.

And the model that I am going to refer to is in the negotiated rulemaking for shipyard fire protection. And we had the Solicitor's Office. We had the economists.

We had any number of OSHA people who are going to be involved in doing the fine work back at the agency trooping around in the mud in the shipyards with the rest of us on the committee.

And we developed I think a very good sense of what it was we were all trying to do. And I commend that sort of activity on the part of the agency to future standard setting processes.

Whether by negotiated rulemaking or any other, it seems invaluable at least to the people involved. They get out there and get a real feel for what it is they will be writing about.

MR. JEFFRESS: I believe you are right. You and Mr. Cooper both are right. Okay.

MR. EVANS: Three of us.

(Laughter)

MR. EVANS: That is a landslide.

MR. JEFFRESS: And let me say in terms of materials, I am also very much aware that OSHA is putting 75 compliance assistance specialists out in area offices to treat and train technical assistance and compliance assistance. We've got to support our own folks, too.

MR. EVANS: Sure.

MR. JEFFRESS: And these materials will be useful for the public at large, but also we will be developing it to support our people.

MR. BUCHET: Thank you very much.

MR. JEFFRESS: Thank you.

MR. BUCHET: We certainly appreciate your time. And I am sure the audience appreciates seeing you as well as hearing you.

MR. JEFFRESS: Again, it is always nice to get out of Washington.

(Laughter)

MR. JEFFRESS: And here, let me pass these around and remind you all when you go back home, talk to the educational institutions. Talk to them about the --

MR. SWANSON: Well, Murphy did a sales job. I can see that.

(Laughter)

MR. JEFFRESS: This is how it goes.

MR. COOPER: Can we take a break?

MR. BUCHET: Sure. Break time. Well, let's a 15-minute break. We will see you back here at 25 of.

(Whereupon, the meeting was recessed.)

AFTER RECESS

MR. BUCHET: If you have the agenda in front of you, we are juggling the agenda so that we can take advantage of the people who are here. And we will let the members I think are mostly trying to change their flights out of Chicago because they have heard the rumor that it is actually going to snow. And we will let them report later.

We have Danny Evans and Owen Smith. Would you like to talk to us about progress in the Process Safety Management WorkGroup?

I take it that Mr. Evans is still --

(Laughter)

MR. BUCHET: We apologize for catching.

ACCSH Workgroup Reports
Process Safety Management

MR. EVANS: Thank you, Mr. Chairman. We did have one subcommittee meeting in Henderson, Nevada a couple of weeks ago.

We had kind of a small turnout and I would guess primarily because of the fact that the announced rulemaking policy on PSM had not been released to the public.

I was instructed. I did have some phone calls from about three people asking for a copy of that proposal be sent to them prior to the meeting, but I was instructed not to send that out prior to the meeting.

We did have -- in fact, I did have some industrial hygienists in the state do a review of that proposal. And we did make some recommendations.

Also, there were some recommendations that were submitted by one of the people that served on the OSHA Review Board in the state of Nevada.

I think that the comments taken and probably an education of the people that were there were very beneficial, but now I understand that the proposed rule and the alternatives that are associated with it have been changed.

And I am not sure that would change our recommendations or not. So I do have the recommendations if anyone would like to see them.

I can give them a copy of that, but again it may change based on our next subcommittee meeting and the new change, alternatives that are being proposed.

I would suggest that we find some location in the country that maybe we could track more people that is involved with reactive type chemicals because that is one of the big issues is including those into the PSM programs.

Whereas, in the past, they have not been there. And I am not sure where that location would be, but if we had the unfortunate experience in Nevada in the last 12 years to have two major instances with reactive type chemicals that no one ever thought would happen.

One in 1988 with the PEPCON plant that made McCory which is an oxidizer. And they sold that stuff to the United States. And they used that oxidizer in their space shuttle missions.

In 1988, they had a really bad fire. I forget how many tons of ammonia chlorate went up in three different explosions. One of those explosions set a Richter scale of about 3.5.

At the time of that explosion, I was about a half a mile from that plant, working in a chemical plant that I worked at the time.

It did approximately $80 million worth of damage to the surrounding plants and homes. And I think that is another concern that everybody should be aware of as the encroachment of communities on these chemical type plants.

In the last legislative session in Nevada, we have passed laws that the state OSHA program now has some authority in authorizing the location of those places.

We have a place in Dayton, Nevada just outside of Carson City where they put in a chemical processing plant about three or four years ago that produces -- and I can't think of the name of the chemical, but it is something like cyanide. They located that plant within a half a mile of an elementary school.

So if they ever have a major upset, it may very well depend on the wind direction to get to that school. And those are the type of things that we are trying to prevent.

These places, you know, particularly in Nevada and that may be different in some of the other states, but in Nevada, 87 percent of the state is desert basically. Only about 13 percent of it is occupied.

So why they would build a facility that close to a school, doesn't make sense to me.

And then, two years ago, we had the explosion in Reno -- outside of Reno, Nevada that killed four workers and injured about six or seven others.

And very luckily this place was -- were injured or homes destroyed, but it is still very unfortunate that that happened.

And I think that the inclusion of all reactive type chemicals into the PSM program would alleviate the process I guess of going through and evaluating each reactive chemical to see if it should be included.

If you just include all of them into it, I think it would probably solve some problems.

One of the examples that was in the PSM proposed standard was that a chemical plant somewhere on the east coast that I guess had been in business for quite some time had a couple of different chemicals that they were mixing. I do not know what use it was for.

But they never thought anything about it. And I guess they had been in business a number of years. And somehow or another accidentally some water got into it. And the reaction started.

And when that happened, they evacuated the plant. And then, some of the people went back in to see if they could solve the problem that was there and ended up killing I think five people.

Prior to that, they never had any idea that the reactive chemicals that they had there could do that or was subjected to that.

So I think the inclusion of a lot of those are very important.

The other question within that proposed rule is that there is a Mirrer decision. And I do not know if Mirrer was a judge or what, the interconnection of storage tanks with a process.

And I think it is very important that if those tanks are inter connected or inter-located even that they should be counted into the overall quantity of that process to be included into the PSM system itself just because they have a storage tank, that is not connected to the process.

And if it is sitting 50 feet or 60 feet from the process and something happens, rest assured the chances of that tank going up is as good as anything else.

Anyway, we would like some ideas on maybe some different locations around the country to hold these meetings and to have some input from chemical manufacturers that are having -- doing business with reactive type chemicals.

MR. BUCHET: Mr. Cooper.

MR. COOPER: At the break, there is some different people in the audience that said that they could not hear what was happening over here. And just a moment ago, the mike got moved closer to them.

So, Mr. Chairman, I would be happy if you instruct the committee to get close to the mike so it might be -- these people in the audience might even be interested in what we are saying.

MR. SWANSON: Part of it, Steve, is just the acoustics of the room. The mikes are live and the speakers are live. And we are putting the word out.

Some of the audience has moved forward. The rest of it like Ziggy is apparently pleased with just the visuals.

(Laughter)

MR. BUCHET: And don't skip the sound.

MR. COOPER: Well, thank you very much for your comment. One thing, Bruce Swanson that I wrote down on the note he mentioned to Charles, but I know they have executive committee meetings every Monday morning, it used to be.

He talked about the partnerships and the partnering between OSHA and the industry and tailoring how those agreements could be tailored.

One problem that we ran into over time is that those partnerships work very well, but there is too much tailoring.

So when one area, let us just say it is an area, a geographical area has one set of requirements which has been reached through mutual agreement with OSHA and then you move out of that geographical area, you have another deal.

We have that I know in Colorado with SESAC where they have reached agreement couple of years ago where a compliance officer supposedly under the agreement would not inspect the job site until the safety director or the SESAC director would show up. And they were immune from certain types of inspections if they reached certain types of requirements.

It still begs for response that there should be some real criteria that these are fragmented groups that have a different agenda across the country because that has occurred through various administrations in the government.

And there is, of course, assistant secretaries in OSHA. And if we could standardize those and have someone really watch those standardizations and the means in which those agreements were reached, that would certainly help.

And as it relates to my colleague on my right on these chemical reactions, what happens with the EPA on these environmental impact statements in this area?

It seems like they would certainly on new construction certainly have that addressed by putting in a chemical plant or some volatile industry close to the public.

It seems like they would have handled that.

MR. BUCHET: Make sure you put the microphone back close to him, Mr. Cooper.

MR. EVANS: Mr. Cooper, the problem you have with EPA that we have found is that they really do not have any jurisdiction in the location of these facilities unless, of course, it gets maybe an environmental impact study of some sort of what, if they had a release it is going to contaminate a river or something of that nature, but I do not believe that they have any regulatory authority in most states anymore than they have in Nevada that they do not build those facilities with the intent of polluting anything, but it certainly does happen occasionally.

And that is one reason that after the -- this was an issue that was raised in 1988 in Nevada when the PEPCON plant exploded that we wanted some authority to evaluate those processes and locations of them and give them a green light, so to speak, before they were ever constructed.

That was not accomplished in the 1989 session, but after the explosion in Reno in 1998, we were able to get that passed.

Not only does the state OSHA program, but also the state EPA folks have a say so in the location of those businesses before they are ever constructed.

So I would say probably most other states, they do not have any authority.

MR. BUCHET: Thank you, Mr. Evans.

ACCSH Business
December Minutes and May Meeting

MR. BUCHET: Let's see if we can resume some form of what is left of the agenda and go back to ACCSH business.

We need to approve the December minutes. I believe we have one or two comments that we need to make a change.

MR. MASTERSON: Yes, a comment from me is just that they let me off. And I was not --

(Pause)

MR. EDGINTON: On the same point, I believe that Mr. Rhoten was there and Mr. Ayers was not.

MR. BUCHET: The second day.

MR. RHOTEN: Yes, the second day, he was not.

MR. BUCHET: It is in the minutes.

(Pause)

MR. BUCHET: Well, look at this way, you are getting twice as much for half the work.

MR. DEVORA: Yes.

MR. BUCHET: Do we have a motion to accept the minutes with the correction to the attendance striking Mark Ayers, adding Mr. Rhoten and Masterson?

MR. DEVORA: Second.

MR. BUCHET: Any other corrections?

(No response.)

MR. BUCHET: Will you signify accepting these minutes with the corrections, everybody say aye?

VOICES: Aye.

MR. BUCHET: All right. That is done.

The next order of business, try to pick a date where we all can convene. I take it that we are going to return to Washington. We were discussing May earlier today. Some of us have already looked at our calendars and figured that the week of 1 May is the best for us.

MR. EVANS: Is that when the cherry blossoms are in bloom?

MR. BUCHET: We have to ask the tourists.

MR. EVANS: You are going to guarantee cherry blossoms for all of us?

MR. COOPER: I think it is very important for this committee to discuss the cherry blossoms in Washington. And no one knows when they are going to bloom, but it is usually some time in April.

(Laughter)

MR. BUCHET: Can we agree on workgroup meetings on 2 and 3 May and the ACCSH meeting for the 4th? And if we need to, it will be the morning of the 5th?

MS. WILLIAMS: Yes. I can do that.

(Pause)

MS. WILLIAMS: I know we have been trying to have four-hour workgroup meetings, but they are several that need to meet. I was wondering if there are any that could handle two-hour increments that we could cover some additional ones in a time slot.

MR. BUCHET: Does anybody have a comment? It seems perfectly reasonable.

MS. WILLIAMS: We can coordinate two and one I think.

(Pause)

MR. BUCHET: The later part being Thursday or Friday?

MS. WILLIAMS: Thursday.

(Pause)

MR. BUCHET: I know we have a conflict the next week. Do we have a conflict?

(Pause)

MS. WILLIAMS: Mr. Chairman, Stew had tentatively scheduled May 8th. Has that changed? Okay.

(Pause)

MS. WILLIAMS: 8th.

MR. MASTERSON: The week of May 8th, I won't be able to attend. I am already locked out that entire week. The week after that, I am free all week.

MR. BUCHET: Do you wish to comment?

MR. SWANSON: Yes, I do.

MR. BUCHET: Please do.

MR. SWANSON: Mr. Chairman, perhaps it would work best if the full committee worked on simply setting a date for the committee meeting as a whole and leave the individual workgroup meetings up to the chairpersons to work out for their own convenience and that of their stakeholders.

(Pause)

MR. BUCHET: Is the agency able to support the meeting on the 4th if we move the meeting to the 4th?

MR. SWANSON: We can support everything except the cherry blossoms. We may not be able to do that on the 4th, but everything else we can do for you.

MR. BUCHET: Well, since Owen has volunteered not to be there, he has sacrificed himself for the good of the rest of the committee, can we agree to have the ACCSH meeting on the 4th?

MR. SWANSON: Sure.

MR. BUCHET: Then, we can arrange the workgroups as we want. Then, the 2nd and 3rd certainly look like good days for multiple workgroups. And we can consider if you need more than two or three hours, try to pick another time to do it.

Mr. Edginton.

MR. EDGINTON: Thank you, Mr. Chairman. Just to give you a heads-up on the Subpart (N) Workgroup, we are going to meeting again next month.

The day is yet undecided. It is probably going to be one or the other, the second or third week.

But we have been -- at the request of that workgroup, we have been holding all-day meetings.

We have been meeting for six hours or so. So it is likely that between now and May, that workgroup will meet at least twice more.

We are trying to move on that so just to give people a heads-up. If they have an interest in that, don't be thinking only about May because we will be meeting at least once and maybe twice more between now and then.

MR. BUCHET: Thank you. That is a very useful caution and probably a good idea. If you need to have a workgroup meeting that is going to take at the most four hours, probably you need the schedule some time outside the week of the ACCSH meeting itself because the workgroup co-chairs have multiple assignments.

The second thing is if -- this is for the public. If you are interested in participating in these workgroups, check and recheck. We will try to get the word out in plenty of time.

E-mail is probably the safest way. So get your e-mail address added to the mailing for the workgroup notices. You will get it fast and quick that way.

So we are going to have the ACCSH meeting on the 4th. We will have workgroups on the 2nd or 3rd or however arranged by the workgroup co-chairs and the agency.

Mr. Swanson.

MR. SWANSON: Yes, Mr. Chairman. Again, for the public, you can check on a daily or hourly basis as you wish as to when the workgroup is going to meet.

But if your -- if the chairpersons of your area of interest or the staff person from my office has your name on a list as being interested in being notified, we will take that burden off your shoulders and notify you when a meeting is set up.

MR. BUCHET: Thank you.

MR. SMITH: I have been brow beaten by labor again.

(Laughter)

MR. BUCHET: Why are you sitting over there?

(Laughter)

MR. SMITH: So I will just come in for the workgroup, but I will just leave Washington and go to Orlando, but I will not be here for the committee meeting, for the ACCSH meeting.

MR. BUCHET: I'm sure you will find somebody to give your vote to.

(Laughter)

MR. SMITH: I will give it to Bill.

(Laughter)

MR. BUCHET: Thank you.

Anymore questions about meeting dates?

MR. SMITH: We will do that.

MR. BUCHET: All right. Moving right along. We had 9:30 for this next presentation. We are running a little behind. So I'll keep it short.

Musculoskeletal Disorders

MR. BUCHET: The Musculoskeletal Disorders Workgroup met Monday. We had an active participating crowd.

We went through a presentation of the unedited ACCSH workgroup document not to be confused as an OSHA policy statement.

And we spent the afternoon discussing what was in it, how to change it, and some of the major reservations which you have heard voiced again today that this document would end up as a blueprint for enforcement activity.

And I think that the Assistant Secretary Jeffress addressed that. What OSHA makes a brochure that it will be stamped very clearly, this is an outreach material, it is not to be used for enforcement.

I have got to believe that in the continuation of the workgroup which is going to continue gathering successful interventions from the industry to incorporate at some future point that we will hear the same reservations voiced over and over again.

And we will -- what the agency will respond over and over again that they hear the reservation and they have every intention of publishing this useful tool for the industry. And it will not be used as a blueprint for enforcement.

So that concludes my report.

I am sorry.

MS. WILLIAMS: Mr. Chairman, regarding that issue that this is a question for Mr. Swanson.

Because there seems to be so much controversy on this draft document, would it be inappropriate to ask for it to be removed from the web until such time as we had a more final product?

MR. SWANSON: Nothing that this committee wishes to ask for is inappropriate.

(Laughter)

MR. SWANSON: You are the ones that recommended the report to us. And it is my recollection that you asked if we would use our facilities to put it on the web.

If the committee as a whole is asking us to take it off the web, we would probably do that. It is not my decision. It is Mr. Jeffress', but I would assume that he would go along with that.

A couple of comments of my own, however, I think that, one, although there is an ACCSH report out there that has drawn a lot of attention, I suspect that the interest is more for a generic subject than for ergonomics and construction than over the form of a single pamphlet.

And that will continue regardless of what we do with our Net.

Secondly, it did not really dawn on me until very recently that the report that we have on the Net for reasons that escape me, we have labeled a draft.

It is my understanding that it was not a draft. It was a work product of a workgroup that was reported on with the full ACCSH.

ACCSH accepted it. And within the next 30 minutes, there was some discussion and it turned around and gave it to OSHA as a final work product of ACCSH.

And during that discussion -- I don't have the transcript in front of me. But during that discussion, we were asked, OSHA was asked if we wouldn't mind putting this up on the web. And we agreed.

I think maybe some people's problems would be alleviated if we were not looking at this as a draft product.

On the other hand, if draft does not make any difference and the committee still wishes to ask for the final report to be taken off the Net, OSHA will certainly consider that.

MS. WILLIAMS: May I?

MR. BUCHET: Please.

MS. WILLIAMS: When the motion was made in four parts as I recall, it was very specifically amended by myself, seconded and adopted by the entire committee that this draft document would go to -- as a recommendation for OSHA so that you folks could prepare a brochure which would in fact be returned to ACCSH so it could have a final review of that document before it came out from the agency.

So I am not sure if we are talking semantics here. It has always been my understanding and intent that this was a draft document for you until we saw what you would do with it by your folks that would come back and we would be able to then address the content of that information.

MR. SWANSON: I believe we are discussing, Jane, a close cousin of semantics, if not semantics itself.

(Laughter)

MR. SWANSON: But this organization meaning ACCSH has in the past been quite sensitive about not taking unresolved issues and distributing them to the public.

That sounds a whole lot like historically this group has not wished to share draft items with the general public until the committee as a whole determined that it is its product.

And that is the kind of way I see what transpired on the ergo pamphlet. But it may be that it is irrelevant whether it is labeled draft or not if this committee sees the problem as being that it is on the Net even as an ACCSH final product. We can deal with that, too.

MS. WILLIAMS: Okay.

MR. BUCHET: Mr. Devora.

MR. DEVORA: I just want to follow up on what Jane said. I think we are talking about two totally different issues in terms of how it ended up on the Net.

I think one of the issues you just addressed, we were not sharing information with the public.

But I think I speak for most of us here. As I recall, it was very clear because I read the transcript. And it as very clear that this was only to be a draft document. And the problem is perception, as we all know.

Now, that it is on the web and Mr. Jeffress is using it obviously. He addressed the other day to the entire group that was eating lunch. And then, some assumption is being made now that this is a final ACCSH work product.

I think it is a question of how we are looking at it. And I think this may be a case where given some of the comments that I have heard in some of the presentations on the product that is out there and even admission by some of the workgroup folks that it is not a complete product, that there is still a lot of work to be done, that we need more comments.

I think in an effort to alleviate a lot of this misconception, I really think it would be for this group to reconsider taking it off the web until we have some more input from OSHA and we kind of clear up some of the language and what our purpose is to have that out there.

MR. BUCHET: As you might guess, I hold a contrary opinion. I think one of the most vital ways we can gather information and facilitate this discussion is to leave that document on the web and talk about it and get input from every person that comes to every workgroup.

And as we promised and as the motion to OSHA from this committee suggested, the workgroup will remain live and active, soliciting comments, soliciting solutions, soliciting interventions, soliciting interventions that have failed badly so that we cannot totally say, here, try this, it has worked, but don't bother trying this because a lot of people in front of you tried it. And it cost a lot of money. And it never managed to affect their work comp rate or their recordable injury, the lost work day injury rate.

But I think the device of the web is one we are wrestling with, but in this particular case, it is a marvelous tool for facilitating this discussion.

MR. SWANSON: Mr. Chairman.

MR. BUCHET: Yes.

MR. SWANSON: Felipe and Jane, what would your feeling if you were to just change the heading on it and just let them know that you are really looking for more input on it, that it is a draft document, you would just like to have more input?

MR. DEVORA: I think that way absolutely. I do not disagree with Michael's purpose. I just think it is an issue of confusion right now.

I think until a lot of folks that are in the audience today came to this conference and to see what ACCSH was all about, I don't think they really had a grasp, you know. Some of them didn't anyway of how we were conducting our business.

And I think it is a confusing issue. And I heard some of this confusion in some of the remarks in the workgroup meeting actually on the first day we were on Monday.

MR. SWANSON: Jane, would that meet your needs?

MS. WILLIAMS: Yes, it would. And it would bring out the second part of why I'm bringing this up.

MR. SWANSON: Mike, do you have any objection to that, if we just change the heading and say it is a draft document and we are soliciting information? That is what you said.

MR. DEVORA: The document everybody should have in front of them says "The following is a product of the Construction Advisory Committee". It is that, not OSHA. And it does not represent OSHA policy. That is clear. That is right there on the front page.

There is an underlying section that allows you to jump through the central transcript and the discussion.

Then, it says "Advisory Committee on Construction Safety and Health Draft". And under that, there is a note: "This draft has not been edited. And a final version may appear in a different format. Please contact the workgroup chairperson for comments."

We did ask OSHA to work from this document. And what we asked OSHA to do, we said that the workgroup and ACCSH would continue to collect information on the discussion, but we have asked OSHA to go forward with this document.

The word "draft" I think was well intended, but apparently it is problematic. But I do not think we mean to run for cover because people are having a little difficulty understanding what it is.

As I understand the complaints, the word "draft" does not enter into it. They are saying it is on the web. It is now OSHA policy.

And everything reads and what every explanation has included is, please read my lips, this is not OSHA policy, this is an ACCSH workgroup document.

And I think we can repeat that over and over again as well as repeat the assurances that have been given to us by OSHA that this will not be used as an enforcement outline.

MR. SMITH: Mr. Chairman.

MR. BUCHET: Owen.

MR. SMITH: Well, could you just make the printing larger where you are continuing to solicit input on a document?

MR. BUCHET: I am sure we can make that recommendation. And I feel fairly confident OSHA might be able to do that.

MR. SMITH: You know, I think everybody is saying the same thing, but it is a matter of perception. So let's make it clear that you are still soliciting input.

Draft is good. It is not a final document. And it is an ACCSH product. And you are soliciting input.

MR. BUCHET: Mr. Edginton, can you pass the microphone?

MR. EDGINTON: Thank you, Mr. Chairman. I will preface my remarks by saying that I have a tremendous amount of respect for my colleagues here.

But my concern is that the issues that are being raised are truly distinctions without a difference in the sense that I think much of the concern has not to do with the content of the document, but rather that the document is up there at all.

And I think with the sense of this group as we debated it at great length that we felt that it was important to the extent of our ability that we would try to move the agency in a direction to begin to get advice with respect to the best practices that were known and understood, get that information out to the construction community while at the same time hearing back from them what they thought about it.

And while, you know -- it almost seems to me that what we are really bitching about, excuse my language here now, is that for one, the agency moved expeditiously on something.

(Laughter)

MR. EDGINTON: And now, we are saying, oh, shoot, why did you do that?

(Laughter)

MR. EDGINTON: And I will suggest to us that we really can't have it both ways. If we felt it was important that we begin to get information out, to again extend and move a dialogue throughout the construction community, we ought not to be losing sight of the fact that people are getting hurt every day.

If there is anything that we can do to begin to put information in the hands of folks, employers and workers, as an important first step, I think we have gone a long way in making it very clear, you know.

If a dummy like me can understand it says this is an OSHA -- I've got to believe and have enough trust in the agency and I understand that others may not that they are not going to be using it for enforcement guidance.

If they are not doing that, I fail to see the problem.

MS. WILLIAMS: Mike -- thank you, Larry. And I understand what you are saying. The reason I brought this up in utilizing this as an example is because our Acting Chairman, Mr. Burkhammer, has charged me to revise our guidelines to address the issue of "draft" interim products that are being made available to the world.

And this is the first time that we have done this process. So I have to meet with Mr. Swanson now to determine how to satisfy my direction as co-chair of this process and I wanted your feelings quite frankly on the process more than the specific issue.

But my other question that I wanted to get in there after you guys all had your opportunity to address the issue is to Mr. Biersner.

If a document, such as this one is in fact presented in an open meeting, such as this meeting is, it is then provided to Mr. Swanson's office, can it even be entitled draft and is it a matter of public which would eliminate all this discussion quite frankly because it would not make a difference if it is on the web or not, as Mr. Swanson has provided?

And that is the point where I need to go with this committee's understanding when I bring back the revision to these guidelines next month or whenever.

MR. BIERSNER: What is the question?

MS. WILLIAMS: The question is, can we entitle a document that is presented at this meeting a draft and exclude it from being circulated until in fact we then say this is the absolute final?

Or is it the fact that it is totally discussed here anyway make it the public document?

MR. BIERSNER: You can do whatever you want. It is now in the public domain. If you want to withdraw it, you can.

It would, as long as we have incorporated public comment, such as right here at the end of this meeting, that satisfies the requirements for public input.

You can do whatever you want. You can withdraw it. You can put it on there as a draft. You can certainly put it on as a draft if it is an -- document.

MS. WILLIAMS: But that did not answer that question.

MR. EVANS: Mr. Chairman.

MR. BUCHET: Mr. Evans.

MR. EVANS: I don't know how you are going to accomplish the industry's input into something unless it is out there for them to review.

It is pretty hard to have a document held within the confines of the committee and the Directorate of Construction and expect the general public to comment on that if you do not put it out there for comments.

And the answer to the other question about final draft, when is it ever a final draft? It is a document that changes based on comments that are given.

I think a good example of something that was done with the PSM standards is a good example.

No one knew it was there. I was instructed not to give it to anybody until the day of the meeting which just holds everything up as far as comment.

I think that it had been released at our last ACCSH meeting in Washington, we probably would have had a lot more.

I mean, we put together what I think is probably a pretty good fix to the problem, but there is certainly other ideas out there.

So until you get that document out there, mark it as draft or draft one, I don't care what you mark it as, but you have to have that out there for people to look at it.

MR. SMITH: Mr. Chairman, I understand the draft argument. And we have our guidelines. So let's get out a thesaurus, find another word for it.

(Laughter)

MR. SWANSON: And let the thing fly.

MR. BUCHET: There may be two questions. One is what we call it when we give it to OSHA and then what OSHA has to put on it in the way of disclaimers when it puts on the web site.

And those are two different issues. We are -- we say here is a working document, please go to work on it, please put it on the web site to facilitate our dialogue with the industry.

And OSHA is at least I am sure going to put up there, this is not OSHA policy in big letters and allow a lot of voice.

MS. WILLIAMS: My recommendation is going to be to Stew and Bruce who are on this committee that is co-chaired by Mr. Cooper is really moot the word in its entirety.

And as I am hearing, when we produce any document that goes to the director from this committee outside of a workgroup, it is not a draft. It is the working document of that committee. And that is the language that should be in our guidelines. And everything else removed from that.

Now, I will speak to Mr. Cooper and Stew on the other committee and get with Bruce and take care of that action.

MR. DEVORA: One quick comment.

MR. BUCHET: Mr. Devora.

MR. DEVORA: I just want to wrap up my comment. It was like I started to say this. But I have no problem with the content. I do not think that it has ever been an issue.

I think the problem that -- it is more of a procedural issue than it is a content issue. There is no problem with recognizing the musculoskeletal disorders in construction.

However, I just said previously, I think we have procedural issues that we need to deal with before we rush to put something out there. And I think we need to consider that.

I know you did work on it a long, long time before I was on the ACCSH, but that is not necessarily the reason to hurry up and rush and put something out on the web.

I think we have a good comment process. And Danny is absolutely correct. It only enhances that process when we put it on the web.

But we have to somehow get a procedure where the public recognizes that just because it is on the OSHA web page that that is not necessarily the way it is going to be and that there is still time for some comment.

MR. BUCHET: Thank you. We will do fall protection. Is that going to be Mr. Masterson?

MR. MASTERSON: Hopefully, this will not take quite as long.

Fall Protection

MR. MASTERSON: Since the last ACCSH meeting, the workgroup met twice, the first time in Henderson, Nevada in Mr. Evan's office.

And we did not have a lot of attendance. The people that were there had a lot to offer. In particular, they were CSHOs from Nevada and a representative from the review board that participated in the workgroup. And we also had a short meeting on Monday.

We got a lot of information to digest. We are hoping to have at least one more meeting before we can give anything back to the full committee.

But we hope that there is a chance that we have at least a draft of our work product at the next full meeting.

MR. BUCHET: Do you have anything to add, Mr. Swanson?

MR. SWANSON: Just a point of clarification. A member of the review board participated you said?

MR. MASTERSON: Yes.

MR. SWANSON: This is the state of Nevada review board.

MR. MASTERSON: Nevada review board.

Do you need the person's name?

MR. SWANSON: No.

MR. BUCHET: We are doing so well catching up to our agenda, I hate to offer Mr. Cooper a chance to elaborate. And I'm guessing because of the intensity of the emotions.

Ms. Williams is going to tell us about the Sanitation Workgroup.

I guessed wrong. I'm sorry. I don't know. Either one of you, please.

MR. COOPER: As it relates to sanitation.

MR. BUCHET: Yes, please.

MR. COOPER: I think probably the best spokesman on this area sanitation would be the redhead over to my left.

(Laughter)

Sanitation

MS. WILLIAMS: Thank you. The Sanitation Workgroup did meet. And there have been several additional comments that came forward, excellent comments.

As you well know, at our last ACCSH meeting, the Sanitation Workgroup was chartered or reconstituted. So we are going to address those separate items that had in fact been presented.

One would be multilevel placement on commercial projects. And after we discuss those issues, we would give those additional items to Mr. Swanson's office for their review in their upcoming development of our sanitation revised standard.

And that is all, Mr. Chairman.

MR. BUCHET: Thank you very much.

Open Forum

MR. BUCHET: At this point, we are actually on track.

We invite all of you -- on where we would like to go. The only thing we would ask is that you please use the microphone at the center table and identify yourselves again.

So if we have any member of the public who has comment, we have from now to at least noon to discuss what you would like to discuss.

Mr. Durst.

MR. DURST: Mr. Chairman, thank you. Joe Durst with the Carpenters.

I would encourage this committee that I do not care whether you call it draft or what you call it, you make the workings of the workgroups available to the public if you want to receive public comment and input.

Having been a member of this advisory committee for many, many years previous in Washington, D.C., many times the advisory committee worked on things.

And the work of the committee was withheld from the public. There were no documents given to the people sitting away from the committee. And the committee was having all this discussions.

And respiratory protection happened to be one of those back in those days. And you did not get the benefit of the public participation to know what language the committee was really working.

So I would encourage you to do that.

The issue that I would request the advisory committee to look at, the OSHA construction outreach training program and the issue of OSHA can have 30-hour cards and accountability of those cards.

I would suggest that maybe the chairman appoint a workgroup. This is a good way for this committee to work to look at the feasibility of the institute issuing 10-hour cards that are a tear-out in the lower right-hand corner of an 8 1/2 by 11 piece of card stock.

And that card stock would actually be a registration form that the instructor would retrieve the participant's name, Social Security number, address, that information that you need.

And the workgroup can decide what that information is.

The cards then would be serialized with a 9-digit number and that number would also appear on the other part of that form.

The institute then would issue instructors serialized numbers, cards. The institute would not incur any more paper work in the return of program information because they still only get the outreach training program report showing the instructor, the instructor's name, the matrix of the course, the dates of the course, the number of students.

The thing that would change is the student list would have an additional column that not only would show the name, it would then show the card number issued to that individual participant in the course and that participant's address.

And then, we would have accountability of the cards in the OSHA 10 and the 30 hours.

Thank you.

MR. BUCHET: A question, do you have any information on fraud that this would help avoid because I am sure people are out there saying, I got my OSHA 10-hour card, making copies of somebody else's?

Or without serial numbers, the cards are so hard to control. And who knows where they all are.

MR. DURST: Well, the issue of fraud, okay, Mr. Chairman, when somebody shows you an OSHA 10-hour card and it is not tan in color and it does not have brown ink on it and it has got black ink.

And in some cases it is we know people took these and had them printed, and this is a plug for us. They sent them to the printers. And the union's printers bug them about the card. The government does not use union printers. You know the card did not come from the OSHA institute.

(Laughter)

MR. DURST: Unfortunately, it goes on. Unfortunately, it goes on. And there are some with a white OSHA card, OSHA 10-hour card, black ink, that don't get it because it is not a card from the institute.

MR. BUCHET: Thank you, Mr. Durst.

Mr. Masterson, do you have a question for Mr. Durst?

MR. MASTERSON: Well, actually, I just wanted to comment. I just wanted to make a real quick comment because again I was at OTI where they issue those cards last year. The report we got said they issued 175,000 10 and 30-hour cards.

That takes up a lot of administrative time. And I think what Mr. Durst is recommending is very viable and ought to be given some real serious consideration to free up those people from that manual task of issuing those cards.

MR. BUCHET: Thank you.

Mr. Swanson.

MR. SWANSON: Considering -- signs each one of those by hand and that is an ergo problem.

(Laughter)

MR. SWANSON: What I wanted to comment on to Mr. Durst -- and I think he has got a handle on it.

And I hope that no one believes anything that I said earlier was in the interest of removing information from the public by taking this thing off the Net or changing the name.

I just wanted to distinguish between a product that this committee as a whole has voted on and given to us and a document that has not yet been officially handed to us, such as the draft of (n) that Larry Edginton and his group are working on that I sat in on in their past meetings, what they are going through and parsing words of the old (n).

And that is clearly in its obvious sense a draft. Anybody who wants to change a word of what they did this morning can simply say, Larry, let's talk about this again. I think we ought to go back and revisit that issue and change that sentence.

I was in a breakout session yesterday where it was being discussed that the pamphlet on ergo was a draft and anyone that had comments please let us know and we will change that draft.

And I said, no, no. That is a product of this ACCSH group. And you cannot just tap into the web and go back and modify it.

That has been voted on and given to us the way it was.

And so I think the word "draft" is confusing. And I know Ms. Williams has a handle on this now. And we will get it worked out.

We will find another way to show that we still have open minds without labeling it a draft.

MR. BUCHET: Mr. Evans.

MR. EVANS: Thank you, Mr. Chairman. I believe that Mr. Durst's idea is very good. I think that if they do some treading on those cards or put some sort of letter mark on them or something where they cannot be photocopied, I believe that would certainly save OTI folks a headache.

I mean, they would still -- if the other part of that sheet of paper is sent to them and recorded appropriately, they could still do the tracking and go to the numbers, but they would not have to do quite so much of it as they presently do.

Thank you.

MR. BUCHET: We will certainly take Mr. Durst's recommendation under consideration, mull it over, and we may come up with a workgroup.

Any other comments? Please, if you have --

MR. RHOTEN: If I could.

MR. BUCHET: Mr. Rhoten.

MR. RHOTEN: Why don't we just come up with a workgroup now and let the workgroup come back and consider whether or not we will do it.

MR. BUCHET: Do I hear a motion?

MR. RHOTEN: I will make that motion.

MR. BUCHET: Do we have a second?

MR. EVANS: I will second.

MR. BUCHET: All in favor of creating a workgroup to discuss OTI certification for the 10 and 30-hour construction outreach training programs and how to modify and make that process more secure, more efficient, say aye.

VOICES: Aye.

MR. BUCHET: All right. We will do that workgroup to, yes, Mr. Rhoten.

And Owen, did you back him up?

(Laughter)

MR. SMITH: He voted by proxy.

MR. BUCHET: Okay. We have done that.

MR. MASTERSON: I would like to make a suggestion.

MR. BUCHET: Yes.

MR. MASTERSON: Let me stipulate that any -- I was thinking that it might be a good idea to include the state representative in that workgroup, particularly because that could affect how they do their function.

MR. BUCHET: Do you feel it necessary to become a full chair or just participate?

MR. EVANS: I can just participate.

MR. BUCHET: I thought you would say that.

(Laughter)

MR. BUCHET: Right.

MR. HAYSLIP: Mike Hayslip, Litho Contracting.

Two comments, both brief. It was nice to see Mr. Jeffress come up here and try to broaden the scope of the committee. And I hope the committee will take that upon themselves to look beyond standards and at all the other things that are needed. I hope they don't shy from that.

The second comment is on enforcement, dollars spent on standard writing or enforcement, is that ever possible to have enforcement in a positive tone?

A case in point, a brief example, a couple of years ago, an OSHA inspector comes on our job. The superintendent is very proud of himself, brag, brag, brag, we are doing this, we are doing this.

I am sitting here, the OSHA guy here, our guy over here. I am winking at him like shut up, give the guy off the job. We don't want to get written up. Just shut up.

(Laughter)

MR. HAYSLIP: What a terrible thing that is. And our guy here, he is just talking. He just can't shut up. We do this, this, this. And he gets the biggest smile on his face that he is so proud himself. I just want to reach out and strangle him. But that just seems like such a terrible thing for me to think about.

Is there ever a way to get a green card or a blue card or -- I don't know, something that when OSHA leaves the job it is not, shoot, we didn't get written up, but, yes, we did something good. I can sell that among my men, my people, men and women. Is there a way to give me some positives to work with?

MR. BUCHET: Would you like to comment?

MR. SWANSON: No. Actually, I think Mr. Haslip's comment was to the committee and not to OSHA. The way we are set up right now, we have no procedures to really do a blue ribbon when we leave the site.

But we can practice it if you will give me a list of where your sites are, Mike.

(Laughter)

MR. HAYSLIP: There we go. There we go. I'll have it in the morning. I don't have it now, of course.

MR. BUCHET: Certainly, one of the things that the agency has looked at is how to take something like the VPP Program and make it work for construction.

And there is room I think in that suggestion for this committee to consider a blue ribbon, a gold star, something short of it takes two years to get clear, to get recognized.

MR. HAYSLIP: I am talking something like instantaneous, not even a blue ribbon per se. I am just talking about a nice scribbled out note, you did a good job on your cords today. That is a wonderful thing, something instantaneous.

These guys come and go anyway. I need something quick, short, fast that I can promote and spread it across, look, what we did here.

I cannot get into the VPP, you know. I can't get results from that. But a guy who shows up and gives me a pat on the back and our superintendent rather a pat on the back, I can sell that.

MR. BUCHET: Danny.

MR. EVANS: Mike, a comment on that area. I can appreciate what he is saying about a contractor, subcontractor after doing a good job and wanting a pat on the back.

But some of the problems that I can see, in fact, we have had some of those in Nevada is that the consultation group go out and do a consultation visit at a project. And they may show up there on the 60th day of the project. And it is a year long project or a year and a half.

We come on the 90th day of the project, find all kinds of things wrong. And the first thing an employer does is pull out a slip, a consultation, and say, well, they said everything was fine.

Well, it may very well had been 60 days into the project. Most construction jobs in Nevada move so quickly that, I mean, they will be on the 18th floor today building a major hotel. Thirty days later, they will be on the 25th floor. That is just how fast they build them.

And we run into that a number of times where, oh, yes, here is this, here is that, you know. And that even applies not only between the consultation visit and the enforcement visit, but if we had an enforcement visit there in 60 days and we go back in 90 days or 120 days because we try to hit them every 90 days, things change so quickly that what we did yesterday is not today.

MR. SWANSON: Mr. Chairman.

MR. BUCHET: Yes.

MR. SWANSON: What Mr. Evans says is absolutely correct that if we somehow institutionalize a pat on the back for someone and if OSHA is doing that, it also is difficult to insist that on our field staff, you know.

We have a mandate that you exhibit common courtesy on a job site. Sometimes, you should not have to mandate that. I mean, we ought to just have people who in the normal course of doing things have a rapport with the public that is paying them and does the decent thing.

And if you spend three hours on a job site and it is a very clean construction site, it seems to me that regardless of what some boss in Washington has told you, you are supposed to do, as a compliance officer that is just a nice thing to do when you are leaving the job site is to say you guys are running a good ship here.

I would like to note though in passing, you heard Mr. Jeffress talk about how we are expanding these partnerships.

And as an adjunct to that, just during the break, I heard the Chicago Regional Administrator talking to somebody from the roofing industry out in the hallway here.

And they were exchanging views on the give and take on a past meeting that they had where the roofing contractors had come in and met with a number of Mike Connor's compliance officers.

And there was a rapport. And they brought in not only contractors, but the contractors brought in a couple of roofers.

And they participated in the conversation. And there is the type of rapport I think that somewhere downstream quite possibly, Mike, will lead to somebody making the appropriate inter-human comments when they leave a job site.

And that is what we ought to do and use these outreach programs and these partnerships to build a level of trust and communication where we can start treating each other with that level of decency.

I am sorry for the sermon.

MR. BUCHET: Thank you, Mr. Swanson.

Please.

MR. RUVALCABA: Good morning. Mr. Chairman and members of the committee, my name is Peter Ruvalcaba with CNA Commercial Insurance.

And Mr. Evans, I recall the 1998 incident of the explosion in Mustang, Nevada there that in the report it showed up that the workers were all Spanish only speaking workers and the management was all English only speaking workers.

So there seemed to be an incredible communication gap between the two. And that probably was if not the root, part of the problem there.

And some of the language that came out of there was that maybe it should be conducted in a language that the worker understands.

Anyway, that is just a preface to the issue here.

In hazardous occupations such as the chemical industry and even in construction, we really need to take a look at the issue of communication gaps on the sites.

And I know you have probably discussed this before. This is my first meeting. But let me just go through a couple of thoughts.

As Mr. Jeffress was talking this morning some of the things that I just could not help. He was talking about research and how we need to do research.

There is absolutely no research that we can get our hands on that is capturing data regarding the communication gap, what languages are involved, what can we do about it.

So as an insurance company or even as a contractor, when I go to a problem, I don't have the data to back it up to come up with a solution that would hit the target. So research is severely needed.

The other thing is developing standards. Training in the language that the worker understands, it showed up in the chemical report that showed up I think in the ergonomic standard.

Maybe, that is something that needs to show up again because the demographics of the Spanish only speaking population are potentially. We do not have the data, but they are growing.

The other thing was training. Excuse me. I already covered that.

The issue of the CSHOs and the standard writer just going out and visiting the job sites, you know.

If we go out there ourselves or the standard writers or the CSHOs go out to the job sites to get educated on what is going on out there, it is going to be blatantly obvious that the construction industry has a lot of Spanish only speaking workers, in some cases Polish workers, and some other ones in Florida and stuff like that.

That is an issue that is so obvious that I mean, you would immediately demand action in the standards writing and how to address it from a compliance standpoint.

And then, I guess overall my proposal would be that the committee would establish a workgroup to encourage OSHA to do get some research done and, you know, partner up with some of these universities, like West Virginia is doing right now, something like that, to where we could really take a look at the problem, identify what the problem.

And then, we tackle the thing before this thing gets any worse because of the statistics that I have been reviewing recently included deaths between the years 1966 and 1998.

The Hispanic population in the construction industry grew 19 percent. The fatality rate in that same timeframe of those Hispanics was 40 percent.

Now, again, that is only Hispanics. And we do not know if they are bilingual or Spanish only speaking, but there is where we really need to look so we can address the problem.

That is my comments. Thank you for your attention.

MR. BUCHET: Do we need to invite you to come to Washington and participate in the Data Collection Workgroup, the Data Collection Joint 170 Form Workgroup or what?

I can see the chairman talking about that, but we have addressed some of those issues. We would love to hear what you can suggest as ways to address some of them.

Ms. Williams, would you care to talk more about diversity in language?

MR. EVANS: If I could just have a couple quick comments, I'll pass the mike to Jane.

MR. BUCHET: Okay.

MR. EVANS: The issue that he brought up is very true. The group that worked at the explosive plant were about 95 percent that only spoke Spanish.

The other part of that problem is that most of them did not have that much more than a fifth or sixth grade education which creates another problem.

They certainly for a number of years knew how to do that work, do it safely without a mishap and produce a lot of product.

But I agree with him that the training that was done was interpreted from an English safety person that they had through a front-line supervisor and nothing to check to see if they really understood what they were dealing with.

I mean, when you start mixing TNT and pectin and explosives, ordinances, stuff left from the military and they were mixing that like cookie dough, the potent was there.

And I do not think that most of the people at that work really had a good understanding of that.

There was a legislative bill passed last year that primarily deals with just explosive manufacturers, saying that the training, education, and certification, all of that has to be in a language that they understand, whether it be Spanish, Polish or Czechoslovakian or whatever it is. It has to be done.

That is going to put a burden on employers that have mixed employees. It only applies presently to explosive manufacturing, but I think that the need particularly in facilities that have reactive chemicals or explosive chemicals or just plain dangerous chemicals that the employees are trained and certified in a language that they understand.

And it is also very important that these folks are fairly well educated so that they can understand that.

Thank you.

MR. BUCHET: Thank you.

MS. WILLIAMS: Your comments are excellent and have been addressed by this committee. We have three workgroups right now working in conjunction with each other on one particular issue.

The 170 Workgroup is looking at the feasibility of incorporating a common question, whatever the final is going to be to address communications that have contributed to the fatality rates that dropped out in that area. So that is a process going on.

The Data Collection had an extreme interest in the same type of information. And that was one of the moving forces behind us having joint meetings on an occasional basis which is a continuing process.

But in dealing with all of the issues, we recognize that the cultural differences, the cultural issues, the language issue, training in the language of the worker versus the instructions that he is going to be receiving in the field and understanding those comprehensions as well as a whole side of relevant issues, we have a workgroup that is dealing specifically with the diversified work force.

And we have prioritized the issues in which we will address those issues, the order in which we are going to be addressing those issues.

The only concern we have right now is that workgroup is being active, however, not to the rate that we can at this point because we have prioritized the workgroups.

And 170 is a priority. And then, we are trying to conclude those activities which will all feed into the diversity which Mr. Edginton is my co-chair.

And we will get on that one as soon as our other priorities allow us to pay more attention in much more detail to its timeliness.

Thank you.

MR. BUCHET: Mr. Devora.

MR. DEVORA: Thank you, Mr. Chairman, a quick comment. Your input in this area would be very, very helpful to these workgroups, the Data Collection Workgroup and ensure that you have persons with access to that kind of information.

And that is true that this committee needs I think the agency's -- it has been my discussion with different folks in the agency about this issue.

And it is an issue that this committee needs to be proactive on not reactive in five years when we realize that 60 percent of the construction workers out there are Hispanics or some other first-language origin.

What is important to understand, I think OSHA's tract right now and maybe it would be good to have them look at it again in a standard setting is that they cover this with the idea that the OSHA Act requires employers to provide training to their -- effective training to their employees.

Therefore, they have shifted that burden over to the private sector to the employer, employees. And they are -- as I see where they stand, they are kind of hiding behind -- not hiding behind, but that is what they use as a tool for enforcement saying, you provide the training, you provide the effective training.

Now, if that means that you have to hire a bilingual safety director, then do it. But maybe, that approach is not really thinking outside the box to address an obvious issue that is going to be rolling our way in the future.

So I think it is important from a public comment point of view to remind the agency that, well, maybe this is not the best way to look at it and just, you know, all we have to do is tell you to provide effective training to workers. If that is English, Chinese, or whatever, that is kind of your tack.

And unfortunately, that is where we are working, but there are a lot of outlook in this area.

Contract language is a real important way to address this. We do in our company.

But certainly addressing the bilingual issue in contract language requiring your subcontractor to have one English speaking or bilingual person on the job site at all times.

Offering outreach through associations for English speaking courses, but also the most interesting to me, and you talked about it in your presentation the other day is everyone's aversion to learning this second language, the insecurities that go along with learning Spanish.

Spanish is not that hard of a language to learn. It really isn't.

MR. COOPER: That is easy for him to say.

(Laughter)

MR. COOPER: We have addressed this over the years, this problem with the language problem. We've got Pacific northwest, you know. A lot of Asians are in that area, the southwest, Spanish speaking, Vietnamese, etcetera.

I think the question would be if you have a construction crew with say 20 people on it and you had some Chinese on it, then you may have a Vietnamese on it, you may have a Spanish on it.

And how would you handle that because my feeling is each individual has to understand what the program, the safety and health program is all about.

And contract language, as Felipe just mentioned, is one manner in which to handle it. I know in a lot of the smaller jobs, they don't have the contract language.

But this thing has been discussed over the last 20 years. And the manner in which you can get the message over with someone who understands. So it is not an easy endeavor.

MS. WOLF: Loren Wolf from Musculoskeletal Injury Controls here in Chicago.

I hate to beat the dead horse again, but as a member of Jane Q. public out here, I am still extremely unclear as to how this musculoskeletal animal got put through.

I have a great deal of angst from what I am hearing here and trying to put this together. Maybe, my perception of this whole process is that maybe something is put on the web. And it is a working document that we are soliciting comments. And it has been unedited.

And if I am understanding correctly what Mr. Swanson is saying that now there cannot be changes to this regardless of whether or not we send in comments, I find that very difficult to swallow.

I have a great deal of very specific comments to be sure, you know, if I take the time to write them and send them to whoever, are they going to be addressed? Are they going to be able to be changed in that draft document that is already out there? Or is that a done deal?

MR. BUCHET: The easy answer is maybe. And you are seeing the process a little bit here and participating in the rest of the process.

Comments through the workgroups which is what that document is soliciting off the web site are incorporated and given to this committee.

This committee then has the responsibility to act on those comments in some way or another. And there are several ways.

One way may be we do not want to deal with it now. Another way, maybe we want to send it back to the workgroup for further discussion.

Another way might be to say we think these are good and we will recommend them to OSHA.

And in the case of this ergonomics, the musculoskeletal disorders in construction document, if ACCSH acts and says to OSHA we would like to amend that document, then that is what this group will do.

OSHA then has the right to say we accept or we do not accept the advice. There is not a guarantee that if a comment comes in, change line 5 on page 17, that that will be what takes place.

MS. WOLF: I understand that. Perhaps, I echo what Mr. Durst was saying earlier that perhaps the process is rather backwards, that you are asking for comments now that it is gone rather than putting it on a web site or whatever, whatever vehicle you want to do this and solicit comments beforehand.

MR. BUCHET: The statement that no comments have been solicited is not accurate. This is as far as I know a three or four-year process where the comments have been solicited through the workgroup.

The fact that ACCSH only in the last few months has a web page has apparently made it look like we are doing things backwards, but the material in this as we talked about in the workgroup has been solicited from the industry and presented by members of the industry through the workgroup process.

The invitation, as Mr. Swanson said earlier, the invitation is open and particularly if you have an e-mail address to get that to us. You will be put on the notification list for the workgroup. And the questions will come that, please, we want comments.

And I think it is the unfortunate timing of the web page where ACCSH can get its work put up that makes people think that things are being done in a backwards manner.

In fact, this is a long procedure of request for information and content.

MS. WOLF: Well, you need to make very clear what we are dealing with now that if you are asking for comment and you are soliciting comment, that that be the first line.

Tell me who I am supposed to solicit comments to whom and what can I expect from those comments in light of the process that we have going on that they may or may not be considered in this draft as it is out there, quite possibly will not be changed as we are looking at it now from what I understand from Mr. Swanson.

MR. MASTERSON: Let me do a couple of things.

MR. BUCHET: Ms. Masterson.

MR. MASTERSON: Thank you. There is a little misunderstanding of what Bruce was saying. And, of course, Bruce when he returns can speak for himself.

But as I understood what Bruce said was that the workgroup does not have the ability to change the document that the full ACCSH voted on and put on the web site.

The workgroup can only make recommendations back to the full committee. And then, the full committee makes that decision.

So what I am saying is it is not that the document cannot be changed, but the workgroup cannot do it by themselves.

First, they have to go through the full committee. And then, that is submitted to OSHA. And those comments will be taken into consideration.

MS. WOLF: What I would suggest to you all is that you make that very clear on this web page, that process that is going to be happening to solicit the comments so that we know if we are going to take the time to do that exactly where it is going and what that process is going to be.

MR. BIERSNER: I think what Mr. Swanson was objecting to principally was promising a specific individual that you would make a change in the document based on their specific comment.

Comments should be invited, but I would make no assurance to you on line item evaluation of all the comments.

We can't change typically a document based on a single person's comment. And you should not make -- nobody should make that promise.

They should say we will consider your comment in balance with all the other comments that we have received to come up with a final answer.

MR. BUCHET: Felipe.

MR. DEVORA: I would make one assurance to you that one of the motions that we made when we passed this on -- and I was one of the ones who had a lot of heartburn about proceeding that way, but I did.

It is very clear in the transcript that OSHA would return this document to the advisory committee for review again. So that process as I understand it is going to happen, as I correct Michael.

And I will say this, on many of the workgroups that I have worked in, any information whether you can be there, you do not necessarily have to be there.

If you send in those recommendations, they will be reviewed either privately or within the entire workgroup.

And what Bob is saying here in terms of will you get exactly line item and sentence that you requested? You may not.

But I can assure you and I think that I speak for the whole committee that information is important. It will be reviewed.

MR. BUCHET: Ms. Williams.

MS. WILLIAMS: Yes, and briefly.

Loren, I know you had some very credible comments in the workgroup meeting on this issue.

One of the intents we have in revising the language in our guidelines is that all such documents should have a cover page of introduction remarks as to what it is, where it is going, what the process would be for feedback, final, or whatever.

And I am sure this committee will all be in favor of that because of the nice comments that we have been getting.

(Laughter)

MS. WILLIAMS: Thank you.

MR. BUCHET: Would anybody else like to comment?

MR. KAVICKY: My name is Tom Kavicky. I represent the Carpenters here in the Chicago area.

I would like to commend you all for your hard work and dedication, first off.

I would also like to comment on the relationship with labor and OSHA here in Region V.

Out of Mike Connor's office, we have an excellent line of communication and with all the other three area offices.

And I appreciate what OSHA has done for the carpenters here in Chicago to protect our workers.

My comment and question to you is, we currently do steward training for our carpenters. It is an outreach program that we have developed.

Prerequisites to take the training is first they -- and also they have taken and also the OSHA 10-hour.

I have heard for several years now that OSHA is considering the refresher training, refresher course for the OSHA 10-hour course.

The problem I have is a number of people that have taken the OSHA 10-hour course in 1981 as far as I am concerned are not current.

I encourage them to take a refresher course or to take the 10-hour again.

Is there anything on the horizon or have you discussed among yourselves about the possibility of a refresher?

MR. RHOTEN: Currently, our international union is heavily involved in the 10-hour course. And our goal is to get all of our members on board with that card.

The communications that I have had with the training center is that there going to be, particularly a make-up course is going to be informal.

You can do that on your own. and we will probably do that on our own. And we have many members, thousands of members who have taken the 10-hour course.

It is basically difficult to get them through that class. A lot of journeymen anyway will not volunteer a Saturday for them to take the course.

What is driving them into the class is either contracts or negotiators say that they will have a 10-hour card or is the industry is requiring them to have the 10-hour card before they get on the job site.

But I think if you get into a refresher course, I do not think that you will find that coming out as a formal requirement.

It is a voluntary program anyway on the basis of it. So I think if you want have a 10-hour refresher course or something, you will probably have to go in your own union to do. That is my opinion on that.

MR. BUCHET: Mr. Edginton.

MR. EDGINTON: Thank you, Mr. Chairman. Much like Mr. Rhoten said, this is something that we have struggled with in our own organization. And I am sure it varies from region to region and certainly owner to owner or contractor to contractor.

But what we find is a very effective way to encourage, I would say, our members to be back in the classroom to get the training.

There are simply an employer or in some cases an owner looking at a 10-hour card that is dated 10 years ago and saying I am not going to accept that.

And we have found that it has had a very positive influence on getting people back out to the training center and because it speaks to them in a way that sometimes we can't even as their own union.

But I know there is an increased interest in that area. I am just not sure that you are going to see a change in that any time soon.

MR. COOPER: Mr. Chairman.

MR. BUCHET: Mr. Cooper.

MR. COOPER: One of the ways that we have been partially successful with the iron workers is that in collective bargaining that no one would be dispatched from the hall unless they have a -- it does not necessarily say current, but a 10-hour OSHA training and other requirements.

There should be not unlike your driver's license some requirement that the card should be current within a certain period of time.

That in itself just saying that does not get it done. But it is a big problem. What has happened 10 years ago, as Larry just brought up, all the new requirements, but there is another thing.

You talk about requiring the stewards to have particular training. One of the big issues that I find after having been Safety Director for the Ironworkers International Union, having to deal with people in Quebec who speak French which relates to the other problem we talked about a moment ago, one of the problems and it is a fact is that a lot of the accidents that are occurring on the job site is due to the fact that the supervision which is our own people, they are allowing certain things to happen.

They have care custody and control of the job. I am talking about the foreman here. And they direct the work force to send you or me up to do something that is incorrect or down in the trench, etcetera.

And to me, there should be requirements for any person to be a foreman. And that requirement would be some heavy duty safety training because the care custody and control of that job is the person on the job directing the work force. It is not the owner. It is not the subcontractor, but the supervision on that job site.

Contractors are out trying to raise payroll, trying to do other things. And I represent the union and not the contractor.

But the foreman should have strict training and requirements to be a foreman. And in going over the fatality lists and accidents, you will find and I find and I am sure everyone who has evaluated it will find that many of the accidents and fatalities that are occurring on the job sites in America today are in direct violation of the standard.

And who is allowing them to do that? And, of course, it goes back to the employer who condones this type of activity on his job site by allowing that supervisor not to be trained or not to care.

But beyond the steward, foreman training to be dispatched from a union hall, the foreman should be trained and have the same mind set that most of us have in this room that he or she do everything in the world to follow the safety requirements, not only federal or state, but the safety requirements on that job.

That is one of the big problems we have. And it is a problem that has to be addressed. Some of it can be addressed in collective bargaining.

And most of it can be addressed through discussions of this sort that give everyone in the industry the same mind set that you and I have.

MR. KAVICKY: I'm sorry. Go ahead, Mike.

MR. BUCHET: Have you ever had any conversations about what a refresher would look like?

I am curious because 10 hours is sort of the bare minimum for equipping anybody to tackle a construction site.

And what part of it do you chop out after four years or --

MR. KAVICKY: For somebody that took an OSHA 10-hour back in the early 1980s, you know, to go over some of the revisions in the standards, the standards that have been opened up since then, the changes, those type of issues, I could see, you know, very definitely.

I guess it would make our life and the contractor's life more so easier if there was a mandated refresher date for that just like there is first-aid CPR. You want to keep them current annually. That would be I think a good idea.

MR. RHOTEN: I did not mean to interrupt.

MR. KAVICKY: No, that is okay.

In closing, I commend you on your positive comments about OTI. Without Ziggy and Manny and their input and their influence especially in our industry -- and I am taking it to the carpenters personally, they have done more for our industry than anybody else.

Thank you very much.

MR. RHOTEN: I just want --

MR. BUCHET: Go ahead.

MR. RHOTEN: Okay. I just to want to say this 10-hour program has been discussed with this group for some time. And there has been different views on how it should be implemented.

I personally think there should be administratively some legislation passed that would require that nobody could work on a construction site until they have had a 10-hour OSHA training.

MR. KAVICKY: I agree.

MR. RHOTEN: And I make the case that that position will stand any place because you are taking kids off the street. They are going on sites that they don't have a clue about.

That is going to be further discussed. There is a training subcommittee, workgroup that is working. And at some point, maybe that will come out of here as a recommendation. Whether or not it gets implemented, I don't know.

MR. BUCHET: Okay. Thank you.

Please come up here and talk in the mike.

MR. RUVALCABA: Just real briefly on what it might look like, an OSHA 10-hour refresher is that a lot of the kids I am sure that Tom is seeing coming through the union halls a lot of guys that are active on the computers.

And, you know, the updates can be simply done computer interactively so that they could do, you know, the radio button questions and get a response back immediately.

MR. BUCHET: Could you identify yourself again?

So we know who he is.

MR. RUVALCABA: Peter Rovocata with CNA Commercial Insurance.

MR. BUCHET: Thank you.

MR. SHANAHAN: Good morning. I am Tom Shanahan with the National Roofing Contractors Association.

And I thank you for allowing us to address the group on this program in Chicago. I wish more of us could participate.

I want to make a suggestion. And maybe, there is a mechanism for this I am not aware of.

But NRCA is a partner in the roofing partnership program for safety and health, the OSHA project that we call it. And we have worked here in Region V. Bruce mentioned it a minute ago.

And to us, it has been a very successful program, an ongoing one that we hope to expand. And it has not been an easy road to hoe, but I think it has been well worth it.

And I understand the AGC is the Pride Program going on that -- and some others are doing.

My question, you know, so often everything -- not everything. So often we talk about OSHA or ACCSH and the issues that come up tend to be on the negative or defensive. People are put in those positions.

And I am wondering if, you know, here, we have a partnership program that has worked very well. Here, we have a very good relationship with the Region V administrator and the folks there.

Bruce mentioned earlier that even we were invited to speak before that group. And again, it kind of brings the groups together because roofing contractors tend to complain a lot about the OSHA people. And the OSHA people tend to complain about the roofing contractors.

And you start to bring people together. And all of a sudden, you find there is a lot of common ground with the various groups because everybody wants one thing. And that is to protect our workers.

So on a positive note then since we are having these programs are starting to be successful, I wonder if it would not be a good idea or if there is already something that I am missing, some kind of group, maybe a workgroup established on how to further these positive partnerships or something that the gentleman earlier mentioned that there is something that OSHA could do to recognize our good efforts here.

We hear that all the time from our roofing contractor members as well. And, of course, OSHA has enforcement which is kind of a stick.

And maybe, there is some kind of mechanism that we could spread to other groups. We hear a lot from our fellow especially trade associations that they really want to do something like the roofing partnership program for safety and health.

They call OSHA a lot. And there is no mechanism in place to do that or get those industries together, you know.

We happen do this with our union which is the unique thing, but other trade associations also have great relationships with their union and can do this as well.

And I just wonder. That is the question. Do you think there is a possibility that maybe we have something that kind of spins on the positive side and gets information together that other groups have done, whether it is roofing contractors, ABC or whatever, and start figuring out what are some of the mechanisms that other groups can share in to start recognizing these efforts of the good contractors and get a positive spin on safety and recognize the contractors and employers that are doing the right thing and encourage that behavior?

The answer is no, right?

MR. BUCHET: No, the answer is not no. The answer is that the discussion has been going on for some time in the committee.

MR. SHANAHAN: All right.

MR. BUCHET: And we have not come up with an answer. As you know, OSHA has pilots of the VPP in construction.

MR. SHANAHAN: Right.

MR. BUCHET: But every discussion we have of it, we try to find the positive in it and then start finding all sorts of problems for implementing it.

And I suppose Bruce's answer earlier this morning is going to be the simplest thing that we can approach at the moment. It is mind boggling.

And one of the beauties probably of having an association with employers and the union that can work together is that you can refine process to look at some fairly specific things.

But if you take a construction site, and I know Mr. Masterson reminds us fairly routinely that one of his halls may have 50 contractors in it.

And you start having a logistic nightmare if you try to figure out how to identify where that gold star belongs and who actually contributed to that gold star or who did not contribute to it.

MR. SHANAHAN: Right.

MR. BUCHET: Anybody else on the committee fell like commenting or does any federal official?

Mr. Swanson.

MR. SWANSON: Yes, I would like to make a comment. And I would like to encourage the committee either now or at a later time to take this update and assign it to one of the sitting workgroups that you've got because I would like to have more conversation on it.

In part, Mr. Shanahan, you are talking about something for the construction industry that is analogous to what VPPA does for the VPP people.

MR. SHANAHAN: Right.

MR. SWANSON: You know about the VPP pilots in construction and the success, the mixed success of those pilots and how it certainly does not fit the entire industry.

I would still like to see something else done. I am tempted, you know, to offer up my office as a clearinghouse for these people to come to who need guidance on how they should approach OSHA to get a partnership, such as you have out here in Region V, but I will not do that.

I went to school on your partnership in Region V and with the benefit of a half dozen year's hindsight here. I believe that we finally just corrected some errors that we made in the beginning.

And those errors were that the partnership was seen out here in Region V as a product of my office and not a product of their own.

And now, that they have acquired a title to the program, it seems to be working a whole lot better.

And we have learned from that. The Pride Program is clearly a product of the St. Louis Regional Office.

The ABC Program that you heard Mr. Jeffress address this morning is a negotiated product of my office and the national office of the ABC, but we have very carefully spelled out in there that there was not a de facto partnership on site until the local chapter and the area director sat down and worked out the final details.

That was the whole idea was the ownership is going to be where the rubber meets the road and not some bureaucrat in Washington.

So for those reasons, I hesitate to throw my office into this further because I think it might be counterproductive.

On the other hand, I would like to see the whole issue discussed within the construction community. This ACCSH committee is a good forum with it. And with some 15 standing committees already, there must be one of them that we can throw this in their tent.

MR. BUCHET: Okay.

MR. SHANAHAN: And I think that the thing I would just like to echo is that as a result of it, what I was trying to say at the beginning is the groups like ours that have done this I think could be a valuable resource to whomever or whatever group does this because there are things that we learn, exactly what you are talking about.

But by the same token having a group in this type of form I think is exactly the place to do this kind of work and research. And it is thinking in my mind outside the box.

What you get by doing this in the first place is the positive side of safety. And it is not done a lot.

So I would just like to leave with that thought that, hey, the more than we do to support that and our effort, we have spent a lot of time and money doing that group, we would like to share that so others can benefit from that.

And I think, again, I agree with Mr. Swanson. This is an excellent place to do that. I hope you will consider that idea.

MR. BUCHET: We certainly will.

Come on up.

MR. YPSILANTES: Thank you very much. Manny Ypsilantes, OSHA Training Institute.

I just want to make a comment on the issue about motivation and rewards. The system, there is a system in place to focused inspections. And one of the criteria was to reward the contractors and the subcontractors at the site if in fact they met the elements for focused inspection where essentially the inspection is done at the site. And they qualify.

OSHA would then basically leave the site because they have a program that is in place and the elements regarding falls, electrocution, struck by or caught in.

They have addressed them and verified and that there is activity from the employees as a partnership. And the elements of a safety and health program are in place.

What OSHA could do once they have reached that level and have made their conclusion, they could issue a letter that could be posted there, identifying the contractor, who are the general and the subs. And then, they could leave the site.

But Danny made a point earlier about it would only identify for that timeframe. So there would not be any confusion later if in fact that site fell apart for some reason or there were problems with health and safety and they no longer would qualify for focus.

So I think we have something in place. It is just not really being published and identified.

And we could -- if they meet those elements, we could post a letter. And I think it would satisfy some of the concerns. And it would identify and reward the people at the site and their efforts for that timeframe.

MR. BUCHET: Mr. Devora.

MR. DEVORA: I guess my response to that, Manny, is the issue of training compliance officers. You and I understand that that is a good positive part of a focused inspection, but the issue is contract representative or employee representative is do the compliance officers out there down the line, several tiers down from where we are at here in Chicago understand that that is the benefit and that is the upside of the focused inspection and that it is not another enforcement tool that they were given to go out and gain entry into sites under the auspices we are going to be in and out of here because it is a focused inspection. But by the way, when we find something here, we are going to be here quite a bit longer.

I guess that is the downside and the issue that we have been talking about all morning is that training for compliance officers.

MR. YPSILANTES: We provide training to our staff and to not only our staff, but the outsiders.

We make everybody aware OSHA's priorities is to make focused inspections and how it is to be accomplished an dhow that accomplishment identifies the good actors from the bad actors.

And our objective is to help to identify people who are making the efforts, who are successful in safety and health and going on to the areas and to the other contractors who are at work sites that need our greater attention.

MR. BUCHET: Anybody else?

(No response.)

MR. BUCHET: Thank you very much.

MR. EVANS: Thank you.

MR. BUCHET: Any further comments?

(No response.)

MR. BUCHET: Mr. Cooper, you look as if you are about to say something.

MR. COOPER: Well, just a few words. Owen Smith, has he gone now?

MR. BUCHET: Yes.

MR. COOPER: Owen had asked me to point out to the chairman and Bruce that there are two vacancies for labor on this committee.

And I think that maybe you can, Bruce, try again to find out how those two vacancies can be appointed. We talked about this.

The other thing, we have some print media here. And I would like, you know, to point out to them that OSHA will soon regulate the blooming of the cherry blossoms on the tidal basin. And maybe, they could start off with that and end up on the Hill here pretty soon.

(Laughter)

MR. BUCHET: Thank you.

Mr. Edginton.

MR. EDGINTON: Thank you, Mr. Chairman. Following up on I guess Mr. Smith's inquiry in terms of what is the status of the labor appointments, I raise that issue with the building and construction trades department myself last week.

And the response that I was given was that they had some names in the pipeline. Hopefully, those vacancies should be filled very shortly because I have had the same concern myself.

And they have assured me that they have finally turned the corner on that. And you should be getting some new names shortly.

Having said that, a couple of things, one, I had the good fortune as we all did this week to attend some of the conference, you know.

Oftentimes in our work, there is a tremendous amount of frustration. And we find ourselves asking, are we really making any difference?

And certainly, as we attended the luncheons this week and saw the huge number of assembled people in that room at least for lunch, we said, boy, we've got an awful lot of people interested in construction safety and heath.

But then, I took a second look at the people at lunch. And something perhaps more important struck me.

Unlike you and myself and a few other of our colleagues sitting here at this table, the majority of the people in the room did not have gray hair. And that was a very positive sign to me.

I said what needs to happen is that we are transferring the knowledge from one generation of safety and health professionals to another, you know, and how important it is for that to occur.

And it was just a good feeling that was to me to see that we are communicating with people. The next generation is renewing the commitment that we all have made.

Having said that, certainly, we all have had the good fortune and benefit of the More Welcome, the hospitality and commendation of the Chicagoland Construction Safety Council.

And it seems to me on behalf of ACCSH, we ought to be sending them a message from either the chair or the directorate, thanking them very much for the opportunity to have been with them this week.

And I would move that we do that.

MR. BUCHET: All in favor?

VOICES: Aye.

MR. BUCHET: Any opposed?

(No response.)

MR. COOPER: Who's going to do it?

(Laughter)

MR. BUCHET: You made the motion. You voted it in. It is up for discussion who is going to do it.

MR. COOPER: I can take Tom to lunch.

Mr. Chairman, along with what Larry just pointed out, I have noticed that the attendees of this sitting out audience is much different than we normally come up with when we meet in Washington.

Felipe and I talked about that a few moments ago, the type of new questions they asked the committee, etcetera, I think is very helpful for this committee to be exposed to other regions of the country.

And instead of the Washington bureaucrats, as Bruce just pointed out, I was just wondering if he considered himself one of those Washington bureaucrats.

MR. SWANSON: Of course.

MR. COOPER: But my point is that I think it is good for this advisory committee to meet geographically on occasion like we have today because of the type of response we get from the public.

Now, you can answer, Bruce. Are you or are you not a Washington bureaucrat?

MR. SWANSON: I hear what you were talking about.

(Laughter)

MR. SWANSON: Indeed, I am.

MR. BUCHET: Mr. Cooper, do I understand that as a motion to recommend to OSHA a that we consider doing this in the future?

MR. COOPER: Yes, I would make the motion. And I will have Felipe second the motion.

(Laughter)

MR. DEVORA: Second.

MR. BUCHET: I take it you are speaking for itself.

All in favor?

VOICES: Aye.

MR. BUCHET: Any opposed?

(No response.)

MR. COOPER: This is an occasion.

MR. BUCHET: Well, it is only once a year.

MR. COOPER: That is an occasion.

MR. BUCHET: Any further comments?

Mr. Swanson.

MR. SWANSON: Yes, I would like to spend just a couple of minutes addressing a topic that maybe should be addressed.

And that is Owen Smith's overwhelming concern with the vacant labor chairs here. Just an update, last March, meaning March of 1999, seven of the 15 members' terms expired.

And for one reason or another and I won't bore you with the details. But for one reason or another, those seven vacancies were not dealt with.

As you know from the past, ACCSH is different than other advisory committees in the federal government in that members are specifically allowed to continue to sit until such time a replacement is appointed for them.

This March, 2000, seven more members' terms will be up. Fourteen of the 15 members of ACCSH will have expired terms.

I do not know what Mr. Jeffress and others intend to do about that. He is aware of the problem and I know would like to go forward and appoint or reappoint or whatever it is with 14 of those positions.

The 15th one, of course, is the NIOSH member who does not have a term, but continues to sit as long as NIOSH wants that particular person to sit there. Or if NIOSH wishes to change its membership, it just does so. It does not rely on us.

So that is an update for you. I know that many of you have sat through the past 12 months in the three or four meetings that we have had in kind of a state of limbo.

I thank you for continuing to row the boat even though have an expired term.

Fourteen of you will be in that same situation soon. And I encourage you to keep rowing the boat. We will get the paper work done as soon as we can.

Thanks.

MR. BUCHET: Thank you.

One last chance, any further comments?

(No response.)

MR. BUCHET: Regina, nothing?

(No response.)

MR. BUCHET: Or you want to get out of here and get to the airport.

We stand adjourned.

(Whereupon, at 11:45 a.m., the meeting was concluded.)

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting of the U.S. Department of Labor, Occupational Safety and Health Administration, Advisory Committee on Construction Safety and Health, held on February 17, 2000, were transcribed as herein appears and that this is the original transcript thereof.

SONIA GONZALEZ
Court Reporter

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