U.S. Department Of Labor
Occupational Safety And Health Administration

Advisory Committee On Construction Safety And Health (ACCSH)

Volume 1

200 Constitution Avenue, N.W.
Room C-5320, Seminar Room B
Washington, D.C. 20210

August 8, 1995

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Members Present:

Employee Representative

William C. Rhoten
UnitedAssociate of Journeymen
and Apprentices of the Plumbers
Pipe FittingIndustry
901 Massachusetts Avenue, N.W.
Washington D.C. 20001

Dr. Knut Ringen,Chairman
Director,Center to Protect Workers Program
111 Massachusetts Avenue, N.W.
Washington, D.C. 20001

William J. Smith
Director, Safety and Health
International Union Operating Engineers
1125 17th Street, N.W.
Washington, D.C. 20036

Stewart C. Burkhammer
Vice President& Manager of Safety Services
Bechtel
801 Washingtonian Boulevard
Gaithersburg, Maryland 20676

Bernice K.Jenkins
Corporate Compliance Officer
P.J. Dick, Inc./Trumbull Corporation
P.O. Box 98100
Pittsburgh,Pennsylvania 15227

Kathryn G. Thompson
Kathryn Thompson Development Company
95 Argonaut Suite 200
Aliso Viejo, California 92656

State Representative

Allen Meier
Commissioner of Labor
State of Iowa
100 East Grand
Des Moines, Iowa 50319

John Pompeii, Administrator
Oregon Occupational Safety and Health Division
Department of Consumer & Business Services
Room 430
Labor & Industries Building
350 Winter Street, N.E.
Salem, Oregon 97310

FederalRepresentative

Diane D. Porter
Assistant Director, NICOSH
1600 Clifton Road
Atlanta, Georgia 30333

Public Representative

Ana Maria Osorio
Chief, Division of Environmental & Occupational
Disease Control
California Department of Social Services
5801 Christie Avenue Suite 600
Emervyville, California 94608

AGENDA

P R O C E E D I N G S

[9:05 A.M.]

DR. RINGEN: Good morning and welcome.

This Committee normally has 15 members. Two members have resigned so it consists of 13 members, with 7 members here present. Currently, we have a quorum, and we're ready to start.

I'd like to start by asking those who are here from the public to, first of all, make sure that you sign in and to, secondly, please identify yourselves. We can start with you, with the striped shirt.

[Audience introductions - inaudible]

DR. RINGEN: Thank you very much.

Bruce Swanson is not here today. He will be here tomorrow. Tony Brown is sitting in for him from the Office of Construction and Engineering.

The first point of business is to approve the Minutes from the May 25 and 26 meeting. Do any of you have any comments on those Minutes?

[No response.]

DR. RINGEN: Do we have a motion to approve them?

MR. BURKHAMMER: So moved.

DR. RINGEN: All in favor.

[Chorus of ayes.]

DR. RINGEN: Opposed?

[No response.]

DR. RINGEN: Thank you. The Minutes are approved.

The way we're going to proceed today is that this morning we will have a number of reports from OSHA, mainly dealing with the safety standards. We will take a break sometime during the morning at a suitable moment, and we will also have a presentation on policy and legislation.

At the end of the safety standards presentations, we will have the opportunity for those who are from the public to make comments if they wish. If you want to do this, please inform us in writing in advance.

In the afternoon, we have a special session on musculoskeletal disorders. As all of you know, we have had a work group focused on the development of a protective -- or a proposal for a protective standard in this area.

Stu Burkhammer is chairman of that work group and will give an overview of the standard and in particular the changes that they've made since the last meeting. He will do that the first thing right after lunch, and our panel will have an opportunity to question Stu and make comments about that, at that point in time.

After Stu's presentations, we will invite public comments on the proposed draft which has been made available to all of you.

At this point in time, we have the following who have requested to make comments on this:

David DeLorenzo from the Sheet Metal and Air Conditioning Contractors Association;

Claudia Harris from the National Association of Plumbing, Heating, Cooling Contractors;

Pete Chaney from the Associated General Contractors;

George Kennedy from the National Utility Contractors;

Charles Maresca from the Associated Building Contractors; and,

Regina Solomon from the National Association of Home Builders.

If there are others who want to make comments on this, we would like to know about it this morning so that we can schedule the afternoon.

Also, for those who want to make comments on this standard, I am going to make some initial comments before the presentations are made about some procedural issues that have been raised with regard to how we have handled this.

We are not looking today for comments on our procedures, we are looking for comments on the substance of the proposed document, and we would like those of you who are making comments to focus on that.

We will give each of you 15 minutes to make your presentations.

We will start out and we will do it in two panels. The first panel will consist of DeLorenzo, Harris, and Chaney. You will each make 15-minute presentations, and we'll have comments and questions for you after that.

Then we will have a second panel consisting of Kennedy, Maresca, and Solomon. That means that this is going to take us about 2 hours, probably, maybe a little bit more than that to get through, but we will be very careful about maintaining timely presentations.

That's why I urge you to stick to the main issues.

Are there any comments about this proposal for our procedures today?

[No response.]

The final thing is that we will not make any decisions about this document today. Stu Burkhammer, as the chairman of the working group, will stew about the comments tonight, and he will come back here in the morning with some recommendations, or at least a discussion, or questions about how we should proceed as a result of the comments that we receive from all of you.

Our objective is to create as good a document as we possibly can, and we will certainly take into account the comments that are made.

Yes.

MR. BURKHAMMER: Those of you from the public who are going to make comments, if you have a copy of the comments or an outline of your comments you would like to share with me, I would appreciate it. I don't take notes very well. If you do have something solid to give me after your presentation, I would appreciate it.

Thank you.

DR. RINGEN: Any other comments?

[No response.]

DR. RINGEN: With that, we can get started with the Safety Standards Presentations: Tom Seymour, Gerry Reidy, and Barbara Bielaski.

We'll start with Industrial Trucks, I guess.

SAFETY STANDARDS

INDUSTRIAL TRUCKS

MR. SEYMOUR: My name is Tom Seymour. I'm the acting director for safety standards program for OSHA. On my right is Gerry Reidy, who is the director for the office of construction, civil engineering standards, and safety standards director; and Barbara Bielaski is the special assistant to the acting director for safety standards program.

Today I'm going to share with you some information about industrial trucks. We have had a request from the maritime industry.

As you may remember, the industrial truck proposal was published as it pertains to the maritime industry, and we have had now some hearing requests from the maritime industry, we will be publishing a hearing notice to honor that request.

At the same time, we are going to publish your documents that you've given us as part of that notice to begin the process as far as construction standards coverage for industrial trucks.

I know that in your May meeting you had quite a discussion about certification. I'd like to share with you some of the things that have happened in certification and paperwork reduction.

Mr. Smith talked about the desire of the Committee, and it's also OSHA's desire to minimize paperwork burdens on employers. I'd like to share with you, for the benefit of the Committee, some of the initiatives that have been taken now by the Office of Management and Budget and what the impact is of the Paperwork Reduction Act on our agency and looking to you all for advice and guidance as we receive other rulemakings, such as SENRAC and so on, and how paperwork may have an impact on that.

The OMB people have published a Proposed Rule to implement their rules and regulations for the Paperwork Reduction Act. This was published June 8th. It's a public document. If people want to take a look at that, they can do that.

One of the things that came out of the dialogue on the Hill was to overturn the Supreme Court decision about dialogue between the employer and his employees, and the intent of the Congress was to now include that kind of dialogue between the employer and employees, considered burden hours.

If there's any kind of paper information that's going to flow between the employer and his employees or he has some kind of preparation of papers he has to do to train them, as an example, then that's now going to be considered burden hours.

Also, as part of the OMB proposed rule, to implement the Paperwork Reduction Act, we could use the term certification, which you all spent some time talking about in your Committee deliberations in May. The OMB Proposed Rule now is to overturn certification as being a means, not to include that as paperwork burden.

I wanted you all to be aware of that because as we go down the road with rulemakings in the future, certifications may not be a vehicle to use to minimize burden hours. The sense that I have and what's going to happen with the implementation of the Paperwork Reduction Act is that there will be a burden budget.

Each agency has already submitted their reports and documents to give the Office of Management and Budget a sense of what burdens they believe we already have in existing rules.

Those were due to the Office of Management and Budget July 1, and they are now reviewing those. We'll have some kind of feedback from them after the new fiscal year starts, but there will be a burden budget given to the agency, and then, as you may remember, the statute requires it'll be a 10 percent reduction from that burden budget.

As we add new rules and we may add new burdens, we're going to have to then subtract that out as well as the 10 percent reduction.

There will be a 10 percent reduction for the first two years under this legislation, and then there will be 5 percent reductions thereafter for several years.

If there's any questions about that, I'd like to maybe respond to those. I wanted you all to be aware of that and some of the discussions that you had on the industrial trucks, certainly needs to be kept in mind as we go down the road, because this is going to be an important facet of the OSHA rulemaking activities as to what happens with burden hours and what kind of paperwork is necessary, really essential, and what kind of paperwork is not so essential.

Those will certainly be questions that we are going to put into our notice of proposed rulemaking for applying it to construction, as well as we'll have some more dialogue about that in the public hearing with the maritime industry.

Do you want to say anything about that?

MR. SMITH: Just to, I guess to put some of this in layman's terms, and forget about 5 percent, 10 percent, and all those numbers --

DR. RINGEN: That's Bill Smith. You've got to speak into a microphone.

MR. SMITH: What you said in the beginning was that the dialogue between employer and employee was going to try to be reduced in the sense of communication through paperwork. That's the original part, was that they were going to try to reduce the paperwork process between employer and employee.

Then I think my understanding was that you also said that certification in itself may not necessarily be considered a burden under this OMB directive?

MR. SEYMOUR: No. OMB, right now, in the past, when we needed a certification, similar to what you all put in your recommendations to us, we didn't have to count those as burdens.

But now, OMB is proposing in this June 8th proposal to make those now burden hours. So where we may have hidden dialogue, say the employer is going to assure that somebody has been trained in the case of an industrial truck operator and he's going to do his own training, so he may spend some time and effort to develop a training program that he's going to use for the trucks that he has on his construction site, that time he spends in developing the training course, and then he delivers it, and he keeps a note with the person's name, when he was trained, whether he passed or failed, the date of that and so on.

Those kind of items as a record, if you will, if it had 4 items or less of information, then it wasn't going to be considered a burden under the old criteria.

Under the new criteria, if it goes into effect, would be considered burden.

So where we used to be able to hide something as far as reducing the number or at least not have to count it, we would now have to count it if that goes forward the say OMB has proposed it.

The Congress, in its intent in revising and implementing the new Paperwork Reduction Act, was to overturn the Supreme Court decision where, if it was dialogue -- say the employer is going to do training. He develops a training program.

He has already checked off that they attended the course, or he does other kinds of things, but we don't require any kind of written record of any sort, they want to make sure that that wasn't going to be considered out from under the Paperwork Reduction Act.

So now where OSHA says to an employer, you've got to have some kind of communication or dialogue with, say, the local fire chief on some kind of emergency preparedness activity, share information with him and so on; that may no longer be out from under. It's going to have to be counted.

MR. SMITH: The hard part about all of this, and I know we all have to live with what's dealt to us, and these are all proposals out there, just like eliminating OSHA altogether is a proposal to some extent.

But what we're trying to do, or what we try to do with the test group and this committee for the construction side was try and aid in that in the sense of eliminating as much of the unnecessarily burden to the employer, specifically in construction, because it's a very transient workforce.

So we tried to basically say, unlike general industry, if an employee comes to an employer through whatever means, through the paper, through an ad, through a friend, through a union hall, if he comes with a certification card in his pocket that someone else, a third party, has already trained him for industrial trucks, the employer should have to do very minimal amount of paperwork, which is just simply take a copy of it and note where he was trained at, and that's all the burden that that employer would have to do.

However, if the employer himself wanted to train his own people, he could very well do so. That's the way we try to write up for the construction industry.

The sad part is that what you're saying is that there's a possibility that may even be too burdensome in itself, and that's scary to the extent that that's the minimal amount that OSHA can go into check for, as well as the employer should be looking for from somebody coming in the door, and it's hard to believe that we're going to go that far.

I'll tell you the bottom line is, if we go that far we might as well not do anything, because what you're basically saying is, the government or OMB or somebody is going to be out there saying to the employer is, basically, look, eliminate all the paperwork; you keep records of basically nothing, and when OSHA comes in, it'll just be catch as catch can if they even come in the door.

I think what we have to do, though, is not think about what they're saying in a proposal, but the proposal we gave from this Committee for the construction industry alone is, from the employer's as well as the employee's side, is a realistic approach to certifying an industrial truck operator, and I think we should definitely go forward with that proposal, regardless of what OMB does, and then if it passes that way, we'll have to live with it, and we'll have to adjust.

MR. SEYMOUR: Right. I just want to compliment you that you are doing the right kind of things, considering the paperwork burden, and all I'm encouraging you to continue doing that as we bring proposals to you, because it's going to be an essential item that's going to have even more bearing as we go forward.

Once we know what our burden budget is going to be and as we add new rules and for subject matters maybe we don't presently address, and so it's not going to be a matter of adjusting what we already have, then we are going to have to take that into consideration, because that's going to tend to increase the burden.

At the same time, we actually have to have a net reduction that's been prescribed by statute, so I just wanted to talk about that.

MS. BIELASKI: The only thing I might add is that OMB took comments on their Proposed Rule through yesterday. I'm sure, like us, they accept late comments.

What we had recommended is that certification activity be exempt from review by OMB under the Paperwork Reduction Act.

MR. SEYMOUR: But they'll make the decision as to what they're going to do regarding their implementation of rules. Of course, the Department was also submitting comments.

MR. SMITH: I'll tell you -- just one more second -- is that employers out there, especially on construction, because that's really why we're here, what employers are leaning more to the fact of, when I hire an employee, I want to understand what his experience is, and through some method of certification is the best avenue to do so, other than bringing a whole binder in with the employee as his work history.

Even at that, it's still a little open door, just like your 1910.120, HAZMAT training.

MR. SEYMOUR: Right.

MR. SMITH: Everybody out there can train people and certify them on their 120 for 40 hours of HAZMAT, but there's no accreditation. That's one of the issues of this Committee. There's no accreditation of the individual who's doing the training.

MR. SEYMOUR: Right.

MR. SMITH: So it can be whatever it wants to be, as long as the guy's got a piece of paper, and that's a sad state that we're in, but that's the state we're in, and we're going to live with it for right now.

But it seems -- and we will definitely do another comment or at least put in another late comment if they'll accept it -- for the fact that some method of certification should be exempt, because if nothing else the employer should at least look for Bill Smith saying, he's got certified, and JP's in the back, we're working with him on cranes.

You know, he's certifying to the fact that he can run the crane. He's certified in industrial truck. He's certified under HAZMAT. Whatever the need is from OSHA, that at least the guy comes in with some credentials saying he's had some minimal level of training.

To me, the employer should love that, not fight against it or argue about it in that case, especially if somebody else does it for him.

MR. SEYMOUR: We're not advocating not having some paperwork requirements.

The idea is, as you do your deliberations, then you only need to be the ones that are essential, and we have maybe some that are on the books right now that we'll probably be getting rid of to help meeting the reduction that will not be considered essential, and if that's going to impact construction, we're going to bring those back to you all, to help have a dialogue about what you all would believe is essential and not essential.

DR. RINGEN: Congress probably did not take into account the special needs of the construction industry.

MR. SEYMOUR: Maybe other industry as well, but they did their deliberations, but we have a law now so we're going to have to live with the law.

DR. RINGEN: If we could take just one minute, I had a request. We've had a number of additional people who have come into the room since we had the public participants here identify themselves.

Those who have come in since we had the first announcement, could you please identify yourselves.

[Audience Introductions - Inaudible]

DR. RINGEN: Again, if any of you have an interest in making comments on the musculoskeletal disorders proposal that we're going to discuss this afternoon, please let us know this morning.

Thank you.

MR. SEYMOUR: I'd like to move onto the commercial diving standard, which is in the construction standards in subpart Y.

COMMERCIAL DRIVING

We have given you another document that we would like, as you have time, to look at.

We are not prepared to come forward with the proposed rule, but we these are some of the issues that we think it would be useful for you all to at least look at, maybe over the next six months or so, to formulate some thoughts about those.

If you have some interaction with any kind of diving activity in your regular work activities, then it probably would be beneficial that you might share those back with the committee and so on as we look at this whole issue.

Holly has facts to you already, and I just want to make you aware that we are interested in the subject matter and looking forward to some further dialogue down the road when we have a proposal that we'll be coming back to you with.

DR. RINGEN: When do you think you will have that proposal?

MR. SEYMOUR: Well, it will be sometime after the new calendar year begins.

DR. RINGEN: So in the spring probably -- late winter, spring of next year?

MR. SEYMOUR: Yes, sir. There's no need to have a working group at this point in time. I just wanted to further share some information as we're gathering information about that.

We've had a stakeholder meeting last October, and in that meeting, there was a representative from the diving industry that came in and asked us to really revise the standard.

At that time, they advocated that the standard be located in one location. They would prefer it to be general industry standards, but that, of course, will be a dialogue that we'll share with you all as well, as we go down the road.

DR. RINGEN: I can ask if anybody has looked at it and has any preliminary comments.

[No response.]

MR. SEYMOUR: I'd like to go on, then, to Gerry.

MR. REIDY: Good morning.

SCAFFOLDS

MR. REIDY: Subpart L, Scaffolds. The current draft of the final rule had been undergoing review since March. As of this time, we've been inform that the project attorney, Mr. Steven Jones, has completed his review and turned his comments over to George Henchell, his supervisor.

We've been informed that, as of this point, about 100 pages have been reviewed by George Henchell, of the approximate 600-page document.

The document has also been subject of the review by a focus group, consisting of representatives of both labor and management to ensure the regulatory texts are written in plain English.

I'd like to emphasize the fact that this review was merely on verbiage, nothing to do with the substance of the standard.

The project officer is working with the carpenter's union and the laborer's union to get information for a non-mandatory appendices covering the training of employees, erecting and dismantling scaffold, and on the feasibility of providing safe access and fall protection with scaffold erectors and dismantlers.

The project officer, by the way, is Ted Trudowski.

He is also working with the office regulatory analysis to review regulatory impact analysis to reflect a more detailed cost analysis that will be required in the future.

The completion date of this project will depend upon the extent of the comments received during the various reviews and the amount of revisions to the Preamble that may be necessary due to those comments.

Are there any questions?

MR. SEYMOUR: Let me just add that, as part of the Presidential initiative that we have embarked on that we submitted to the President back in June 1, this whole effort to try to put the OSHA requirements into more understandable language, which Jerry calls plain English, and you'll hear that term being used at least inside OSHA quite a lot, our intent to try to do that was to get people who were going to have to comply with the rule directly, in this case, probably competent person type people who are going to be involved using scaffolds, were the kind of people you were trying to draw in to read it and give us some suggestions.

We've got some very useful suggestions. Some of them talked about putting some of the information into a tabular form as opposed to the written narrative, and we're going to try to do some of those things. It was a helpful discussion that we had.

So we'll be doing this as a regular routine for our rules as we go forward -- proposals and possibly finals, as well as we're doing in this case.

We can go on, then, to Electrical Safety.

ELECTRICAL SAFETY

MR. SEYMOUR: I know you all have a work group on that, and we're continuing our efforts. Of course, the present Subpart V is over 20 years old, and so we definitely need to do a revision to bring it more in line with some of the criteria that we have put into place into the general industry standards in 269.

That standard is in litigation by a group that has filed a suit against our correction notice that we issued for the standard, and so the correction notice is the one that is in litigation, not the main standard itself.

The IBEW has filed an amicus brief in support of the agency's brief, and it is in the hands of the court now.

The judges have all the documents and are making the decisions. We'll hopefully hear sometime in the fall about that.

We're waiting and looking forward to some recommendations from you all when you get ready to do that.

DR. RINGEN: If you have any comments right now, you'll be reporting on this work group tomorrow.

MS. BIELASKI: We had a work group meeting two weeks ago.

MR. SEYMOUR: We can go to SENRAC now.

SENRAC

 

MR. REIDY: The last meeting of SENRAC in June of this year -- June 27-29th -- ended without reaching a final consensus on the total Proposed Rule, mainly because there was no consensus reached on fall protection.

 

The fall protection work group met on Wednesday, July 26 in Philadelphia. I have handed out to all of the Committee a copy, which I am going to read from now for the record. If you haven't got a copy, let me know.

The members of the work group agreed that each of them would take the following outline of a package agreement back to their individual constituencies before proceeding further.

The agreement of the work group was as to the whole so that no individual part could be changed without vitiating the entire packet.

Moreover, the members of the work group did not purport to bind the organizations and interests they represent, but rather they agreed to submit the outlines to those organizations for approval.

Finally and critically, this outline of a fall protection section of a standard, is the integral part of the large steel erection standard developed by SENRAC, and it must not be viewed in anyway as freestanding.

The package is as follows:

Connectors in an erection zone, working up to 30 feet need not be tied off or otherwise have fall protection. They must, however, have the ability to tie off should they want to and, hence, must wear some sort of personal fall arrest equipment, the precise nature of which need to be defined.

There's a need to define the scope of the duty of the connector that qualified for this provision.

We will also liberalize man-basket restrictions to enable their use.

Connections may move point to point without fall protection being in place while in the connection zone. Decking operations between 15 and 30 feet need not have fall protection. They must, however, establish a control decking as described in June 26 fall protection draft standard, but without the decking monitor described.

A 15-foot height applies everywhere other than the leading edge, and applies to point-to-point activity in the zone. Fall protection must be provided for everyone else when the risk is greater than 15 feet. This also includes point-to-point, other than described above.

The work group also agreed to collect data and revisit the standard 5 years after the effective date to see how well it is working and whether it needs revision.

Based upon this work group's product, an additional meeting of SENRAC will be held September 19, 20, and 21 in Seminar Room 4, on this floor, in the DOE building. The meeting will discuss three items:

(1) The scope of the Subpart 4;

(2) Development of the training which was discussed before; and,

(3) Fall protection.

That is the current status of the SENRAC group.

Are there any comments or questions?

MR. SEYMOUR: I was just going to say, further, that they will be hopefully concluding their work and issuing a report to Joe Dear, and our intention would be to bring that as promptly as possible to you all for your consideration.

They have also deliberated about paperwork requirements and so on, so you'll see that as part of the package. They have worked long and hard since this previous past June -- a year ago past June.

We're hoping there will be a conclusion, as Joe Dear would call it, for this negotiating rule making Committee effort, and whatever meeting you're going to have after the early part of October, would be probably the next time we would be able to bring the package to you all for your consideration.

DR. RINGEN: Bill, do you have any comments?

MR. SMITH: No. Just to echo what Tom says, as a member of that Committee, we were there, I guess because there were a lot of issues that dealt also with not only the iron worker and some of the other trades but with the cranes, in general, and connecting; but that Committee did, like Tom said, work very, very hard.

It was somewhat emotional, in some sense, of trying to come to a number. There was definitely a negotiations being done between both sides because they were from zero elevation all the way up to 30, 40 feet in distance, as far as being that far apart, but there was some give and take.

Like it says, this is not free standing. There's a lot of things that need to be done along with these numbers here, to make it safe as they can.

In that sense, I'm still trying to connect unsecured iron, which is where the argument started with, and the fact that the numbers of falls that were iron workers, the majority of them weren't connectors in that area.

And that's why there was such a harsh argument about the connectors being able to move around like they do, because when they get to the job, there's nothing in the air but the sky, and they're going to start putting up iron, and it's unsecured and everything.

So there was a major, major concern about the fact that they would tie off to something that may fall down.

I guess as Eric knows here, too, a lot of the manufacturers, the fabricators, all of the people were involved in it, and the buildings, I figure, are going to be more stable, at this point, if this is followed.

So as that 5-year time frame goes by, you may see that collapses, which were a major part of the problem, may not be occurring, and it may revisit the fact of the height element at that point, and I think it's a good deal.

DR. RINGEN: So, do you expect that the outline presented here will essentially be the sort of concepts or criteria that the full committee agrees to?

MR. SMITH: That's the million dollar question.

DR. RINGEN: Okay.

MR. SMITH: I think the subgroup committee that was put together to come up with this were the major opponents as far as the distance between the two, and if they basically agreed in negotiations to come up with this number, I think the rest of the committee will probably, or hopefully, follow through, because the major players of this agreement were the subcommittee that met to form this.

DR. RINGEN: Is the next meeting definitely the last meeting?

MR. SEYMOUR: I believe so, yes, sir. We were hoping the June meeting was going to be the last meeting, and they really put in a lot of effort.

Caucuses were formed for proponents of different points of view, and they were not quite able to come to conclusion, and so the work group was formed with both groups proponents being part of the work group, and so this is now what's come from that work group.

We're hoping, as Bill says, that the main committee will buy into it.

Joe Dear is looking, really, for this group to conclude its work in a consensus fashion if at all possible. That's what we're hoping is going to happen, and we're desirable that that's going to happen. We're looking forward to that kind of dialogue and camaraderie being maintained when they come together in September.

DR. RINGEN: The death rate for falls among structural steel erectors, based on our most recent data, and we've worked a lot trying to get good denominators, is about 150 per 150,000.

It's hard to find a death rate in any part of public health in the U.S. that's higher than that. I don't think we're going to find it any other place.

MR. SEYMOUR: Logging has a similar death rate.

DR. RINGEN: Not as high as that.

MR. SEYMOUR: Logging is like 136 or so, yes.

I have some other subject matters that are related to SENRAC, in the case of Subpart M. I'd like to talk a little bit about that, if I may.

DR. RINGEN: Before we finish on this, if possible -- I don't know if it's realistic or not -- but if the SENRAC is completed before our next meeting, and you bring this recommendation that they've come up with to this Committee, maybe at that time, maybe we could have a couple of participants from each side in the negotiations also join us to have a discussion about the procedure as well and how they thought this has worked.

MR. SEYMOUR: We could bring that to the Committee when they meet in September, and they could, at that point in time, designate some representatives who would then help make the presentation to your Committee.

DR. RINGEN: That would be great. I think that would be useful.

MR. SEYMOUR: As a corollary to the SENRAC discussions, obviously the scope is going to be an issue, and the scope of Subpart M has been impacted by the SENRAC deliberations.

Ms. Bielaski will give you a little orientation about what we've passed out and what's happening with them.

SUBPART M UPDATE
MS. BIELASKI: Good morning. There are a few things that we want to talk about this morning that relate to Subpart M to kind of bring you up to date on what's happening with Subpart M.

The first would be the Federal Register notice that was issued last week and passed out to you a few minutes ago, and the memorandum from Jim Stanley to the field setting the enforcement policy.

The second item we want to share with you, some of the problems and concerns that have been raised to the agency since Subpart M went into effect.

Last, we want to inform you of some of the potential revisions to Subpart M.

Going back to the Federal Register notice of August 2nd, 1995, essentially, that notice corrects or amends Subpart M, to state that nothing in Subpart M, not the duty to have fall protection, not the systems and criteria for fall protection systems, nor the training provisions of Subpart M, apply with regard to any steel erection activity.

This amends the scope statement that was in the August 9 register. Going back to the August 9, 1994 rule, we said that Subpart R covered steel erection of buildings, now we're saying that steel erection activities are covered by both Subpart R and by the old rules and 104 -- 196.104, 105, and the definitions from 107 remain in effect.

So between those four sections, they'll set the requirements for fall protection for steel erection activities.

MR. SMITH: For the present.

MS. BIELASKI: Now, what needs to be discussed is what is the definition of steel erection activities.

Subpart R only addresses buildings, so this

Jim Stanley memo attempts to define steel erection activities. When SENRAC meets, it will further define the scope of Subpart R, and that definition could change.

Essentially, these documents say that no fall protection is required when engaged in a steel erection activity until a height of 25 feet has been reached.

Are there any questions on that?

[No response.]

The second area that I wanted to share some information on is problems that we've seen with regard to enforcing Subpart M.

We estimate there are about 20,000 roofing contractors in this country that are subject to Subpart M, and I've heard from all but five of them, so we're aware that they have some problems out there.

We've also heard from a number of home builders. Matter of fact, we've gotten more comments on Subpart M since January then we got during the whole 8 years the rule was under development.

Again, the two groups most affected by the Final Rule are residential contractors and roofing contractors, particularly roofing contractors that are engaged in residential reroofing operations.

This morning, I want to give you the enforcement memo that Mr. Stanley has issued on fall protection plans, and hand it to you earlier, because it looks very much like the one you got on the steel erection.

(Distributing handout.)

Many home builders and residential roofers are just now becoming aware that since 1971 OSHA has considered them to be a part of the construction industry.

Now, we were aware of that when we went to the final rule. We knew that there would be some problems with residential contractors in terms of their ability to use conventional fall protection systems.

It was for that reason, based on that knowledge, that we included in the residential construction provision the language that employers who could demonstrate infeasibility or greater hazard with regard to using conventional systems, could develop and implement a fall protection plan.

The plan essentially would allow employers to explain why they couldn't use conventional systems, to state what systems they would use instead, or what other alternative procedures they would use instead, and they would implement their own plan.

The policy statement amendment that you just got goes on to say that the Appendix, the sample fall protection fall in the Appendix for residential construction, outlines the areas that we believe that there will be problems or could be problems, and it explains the reasons, and it provides at least one alternative method of compliance.

We have tried to spread the word on this to residential contractors and to those involved in residential construction activities, that they can use the plan.

We, a couple of weeks go, went to Chicago to meet with Residential Construction Employer's Council to explain to their members how to use the sample plan for all phases of construction activities.

We also are working with the National Roofing Contractors Association. They have brought to our attention that there have actually been some employers who are now beginning to experience accidents that they didn't have before since they've been using the fall protection equipment.

They have asked us to review a draft fall protection plan for roofing operations, and we're doing that now.

MR. SEYMOUR: As it pertains to residential construction.

MS. BIELASKI: I'll just give you a little bit of information about their recommendation so that you'll have an idea of what they're suggesting to us.

They're suggesting that the use of slide guards -- they're 2x4 boards, there are 2x6 boards -- being used in lieu of conventional fall protection.

At the slide guard, you would place one at the eave of the roof for roofs with a pitch about 412 and up to 612. As you get a little steeper, up to 812, you would put additional slide guards no more than every or no less than every 8 feet.

Once the roof slope was greater than 812 pitch or slope, conventional fall protection systems would be used.

The plan also outlines procedures to use only workers that have been trained in roofing operations, that have been trained in the recognition of fall hazards.

The plan specifies the pre-job inspection to evaluate each job site for fall-related hazards, to limit access to the roof.

The roof would actually become the controlled access zone. Only workers that need to be on the roof would be allowed on the roof.

Measures would be taken to protect employers at the perimeter for materials fallen off the roof and on to them.

That Assistant Secretary has stated in hearings that we may publish this fall protection plan as another non-mandatory appendix in Appendix E to the Final Rule.

I think that's all on that, unless there's some questions.

DR. RINGEN: Any questions?

MR. SEYMOUR: I would just like to say that we spent some time and effort working with the industry people -- Mike O'Brien, Regina Solomon -- from the Home Builders when we were doing the plan there, and we've been doing the same thing with the roofing contractors.

DR. RINGEN: Jack.

MR. POMPEII: I would just like to go on record and say that, in Oregon, we've been doing this exact thing on pitches with toeboards, and it's a huge success for the roofers in our state.

We've been doing it for approximately a year. It's a fantastic thing. It's a common sense approach.

DR. RINGEN: Okay.

MR. SEYMOUR: It's showing good results?

MR. POMPEII: Yes. I just read an article in Oregonian last week that, nationally, the fatality rate totally went up 4 percent in the country. Occupational; in Oregon, it went down 14 percent, so that's a swing of 18 percent fatality. This construction is down quite a bit.

DR. RINGEN: All right.

MS. BIELASKI: The last item with regard to Subpart M has to do with plans for revision of Subpart M.

First, as has already been stated, after SENRAC completes its work to revise Subpart R and determines the scope of Subpart R, we will have to amend Subpart M to pick up any steel erection activities that are not covered in the future Subpart R.

In addition, the House has recently passed an appropriations bill for the Labor Department, and there are some riders in that bill that affects subpart M. One is that OSHA would be forbidden to expand any funds to enforce the 6-foot rule.

We are directed to start new rulemaking to revise Subpart M, and we would have 180 days to do a new rule.

In the meantime, all height requirements are adjusted to 16 feet, and that's what we would enforce under the House approved version. That does have to go to the Senate now and, of course, be signed.

The reason we're bringing this up today is to alert you that if we only have 180 days to come up with the new rule, we're going to have to move quickly. And we may not be able to bring forth a proposed rule to the Committee if there isn't a committee meeting scheduled within the time frame.

So perhaps if there are comments on Subpart M, if there are things that need to be corrected, revisions, suggestions, anything that you want to give us in the way of comment, as soon as we could get them, it would help us in the event that this should happen.

As the project officer, I guess I have special attention I give to Subpart M, and I want to say that this rule, of course, the rider overturns rules that were put in effect in 1971 with regard to fall protection.

Under the Construction Safety Act, the Department of Labor, under the Bureau of Labor Standards, promulgated that 6-foot rule, that remained in effect until '94.

The revision in '94 really only affected the roofing contractors. It was only the roofing provision that used to be 16 feet. Everything else was either at 6, 4, or 0. So everything now would automatically move to 16 under this rider.

MR. SEYMOUR: I just want to say that if the appropriation rider stays and we have to then act on that, we would be publishing an interim rule very quickly to implement the 16-foot.

So we're just telling you now, in advance, because we may not have time to tell you before we'd actually have to do that, and then, probably with whatever assistance you may be able to render to us, we know we're going to have to do a rulemaking to amend Subpart M, because of SENRAC and for other reasons, and the effort by the rider even, may provide additional incentive because of the time frame and so on.

So if you have some recommendations to suggest to us, we'd certainly like to have those.

I would just like to say one further thing. That is, in some of the hearings on the Hill, we heard from the manufactured housing people that they didn't believe that they had any opportunity for input and so on, and that was, of course, they did not take part in our rulemaking but they certainly had the opportunity.

Then the remodelers -- those who go back into people's homes and do remodeling -- were not aware that they were also covered, and we certainly tried to make people aware that this rule applies to anybody doing residential construction.

They actually spoke and said that they had problems with the rule but, of course, had not participated in the rule, so we're making some efforts to try to get more bodies involved and groups involved in some of the pre-rulemaking efforts as we're doing with the confined space and the lockout tagout effort, which we've brought to you earlier, by circulating some drafts around to various trade associations.

These are not necessarily fun times for us in the case of fall protection, but we've got to be realistic if we have to do some things, and we're going to have to do them, and we can certainly utilize your assistance in doing these things.

Thank you.

DR. RINGEN: If I understand you correctly, on Subpart M, you are not asking us for any comments at this point in time, but you may have something more specific that you will come with to us for a very short turnaround in terms of comments?

MR. SEYMOUR: If you all are aware of some areas that you believe Subpart M needs to be amended, we would like to have that information over the next quarter or whatever.

I don't expect that we'd have the Proposed Rule done immediately, depending on what happens with the budget and what the President does and so on, but if we have to act as the rider may stay in place, then we will have a very short time to do these things in.

DR. RINGEN: Yes, Stu.

MR. BURKHAMMER: Just a comment.

I think a few years ago this Committee, prior to my being on it, addressed the issue with you all about trying to get Subpart M to cover certain aspects of steel erection.

I think this Committee at the time -- and you can look back and check the references to see that I'm correct -- told you that it was wrong to try to use Subpart M to mask not being able to use all parts of Subpart R and trying to stick some steel erection problems in Subpart M, and you didn't listen.

Now I see from Stanley reissuing his memo, that all of a sudden you're listening.

I guess the point is, when we try to explain something to you and tell you something, we're not doing it just because we don't like you, we're doing it to try to save you guys a lot of headaches and problems, and I think this is a perfect example of one that you had a headache and problem because you didn't listen to the committee.

MS. BIELASKI: I might just mention that Subpart R only addresses permanent and temporary floors into your buildings.

The areas that subpart M had originally intended to cover were in non-building construction areas that were never covered by Subpart R.

MR. BURKHAMMER: But I think when the first memo came out, it tried to mask some of that, and it wasn't really intended. I mean, it was kind of ambiguous what it tried to do.

Instead of coming right out and say, boom, boom, boom, like this one does, there's a little difference in the interpretation.

MR. SEYMOUR: Well, this committee also recommended that we try to standardize on a fall height, which we did, and it has not been well received.

VOICE: You win some, you lose some.

MR. SEYMOUR: That's right. Exactly.

MS. BIELASKI: Yes.

MR. SEYMOUR: But we are going to have to respond to whatever the Congress and the appropriation bill finally say, if anything at all. I just wanted to alert you all to the possibilities.

Thank you very much.

DR. RINGEN: Are you all done?

MR. SEYMOUR: Unless you all have questions, sir.

DR. RINGEN: Any more questions or comments?

[No response.]

Before we continue, actually continue towards a break, I think, we would like those of you who are here who have introduced yourself yet to please do so.

We'll start over here.

[Further audience introductions - inaudible.]

DR. RINGEN: That's it. Why don't we take about a 20-minute break, and we'll be back here.

[Recess]

DR. RINGEN: We're going to make a couple of changes in how we'll be proceeding this afternoon.

First, this morning we'll hear Celeste Monforton talk about policy and legislation. She will speak for about a half an hour, and then when she's completed, I'm going to ask Stu to give the overview of the Musculoskeletal Disorder Standard before we take lunch.

The reason for that is that we've had a number of additional people request time to make comments on this in the afternoon.

So in the afternoon, we're going to have three panels right now of presentations. They will start immediately after lunch, at 1:00.

The first panel is Delorenzo Sheet Metal and Air Conditioning Contractors Association;

Claudia Harris, Plumbing Heating Contractors;

Pete Chaney, Associated General Contractors. That's the first panel.

The second panel is going to be George Kennedy from the Utility Contractors;

Charles Maresca from the Associated Building Contractors; and, Regina Solomon from the Home Builders.

The third panel has been added since this morning. It's going to be Anita Drummond from the American Subcontractors Association;

Ellen Larson from the Air Conditioning Contractors; and, Mark Freedman from the Painting and Decorating Contractors.

Now, given that we have these additional presentations and in order to get through this and to make sure that we have the opportunity to ask questions of those who make presentations, we would like these presentations to be shortened from 15 minutes to 10 minutes.

Based on the discussion that I've had with some people during the break who are making presentations, again, the issues that -- well, you had a short time to review this document, the issues that we're looking for is the substance of the document. We're not rushing to get a document out here.

We want to make sure that we have comments and that we can deal with them in a thorough fashion as possible, and we may come back with additional information later on if we think that's necessary. Please keep that in mind.

Are there any comments or questions about how we're going to proceed.

With that, then, Celeste Monforton, welcome. We'd like to hear from you about the great things that are going on.

POLICY MONFORTON

CELESTE MONFORTON

MS. MONFORTON: I am Celeste Monforton, and I work in OSHA's policy office. I've been doing legislative affairs for about four years. I have to admit it's been extremely busy, as many of you.

I never start a presentation without a visual aid. This one is failing. The one test of visual aids is have something that doesn't fall down.

I wanted to just see for myself why we have been so busy, and so I did a totally unscientific survey. I used the Library of Congress' Thomas data base, and I did a search of all the times that OSHA, Worker Safety and Health, and a couple of other terms were mentioned in the 103rd Congress, during the entire 2-year 103rd Congress.

If I had Carol Merrill here, she would take this apart.

But there's 572 times, which is a pretty decent number. That would be bills that were introduced in the 103rd Congress, or if there were hearings held on OSHA.

So far this year, in the 7 months of the 104th Congress, those same terms were mentioned 432 times. Like I said, it's not scientific but it does show you that at least the word OSHA and, as some have called it a 4-letter word these days, has certainly picked the interest of members of Congress.

DR. RINGEN: I was going to ask, how many of those were favorable mentions.

[Laughter]

MS. MONFORTON: Like I said, this was not scientific, and I did it very quickly this morning. I thought it was interesting, and it confirmed my own suspicion that -- not suspicion, my own belief -- that we have been extremely busy. We've had many hearings.

We just completed appropriations last week, and I guess that's what you would like me to talk about. I'll hit on the major pieces of legislation that we've been tracking, and then I'll be very happy to answer any questions that you might have.

Last Friday, the House took the final vote on the Labor, HHS, and Education Appropriations bill, which includes funding for OSHA for next year, starting in October. The vote on that bill was 219 to 208. Pretty close margin.

There were two specific amendments of particular interest to us, and there was lengthy debate on both of those amendments.

The first was offered by Congressman Obey of Wisconsin. That amendment was his attempt to delete from the bill a number of riders. I think there were 15 or 17 riders, two of them were OSHA riders. There was much debate on that amendment.

There was much support and discussion about the OSHA program and particularly the new initiatives that Joe Dear has undertaken.

On the other hand, there was still a lot of criticism about the agency and our enforcement practices, so it was interesting to both listen to or read it in the next day's Congressional Record.

The vote on that measure was 270:155.

Then there was also an additional amendment that was introduced by Congresswoman Pilosi from California, and her amendment had to do with three particular Department of Labor riders. One of them was the rider on ergonomics. There was quite a bit of debate about that.

That amendment was also defeated by a vote of 229:198.

On the Summary of Legislation that I provided to Holly to put in your package, I have included the language from the riders that it appears at the footnote of the bottom of that first page. Those are the riders that are included in the House FY '96 Appropriations bill.

I was here for the last part of your earlier panel when Tom Seymour was talking about the fall protection rider. That's the actual language of the two riders. The first is the ergonomics rider and the second is the fall protection rider.

As you may or may not know, the bill that passed the House has funding for OSHA at a level of $264 million with some specific direction to the agency of where that money will be spent. It represents a more than 15 percent reduction in funding overall, and a 33 percent reduction in funding for our enforcement programs.

The Senate will take up this bill once they recess and when they return from their recess in August, probably sometime toward the middle of September.

At this point, we don't have a clear indication of where the Senate will go with this particular bill or if some of that money will be restored or how they will handle the riders.

Any questions about appropriations?

[No response.]

There's quite a bit in the newspapers; at least in the newspapers here in D.C., about that whole process.

Obviously, the other major piece of legislation that we're tracking is OSHA reform. In the House, Congressmen Ballenger's bill now has 124 cosponsors.

Congressmen Ballenger and his subcommittee held a couple of hearings before the bill was actually introduced, and then he has also held three other hearings since the bill was introduced.

The most recent was a hearing a couple of weeks ago, and it deal primarily with the Mine Safety and Health Administration.

There were also two days of hearings in the Senate that Senator Kassebaum held. On the second day of hearings Joe Dear testified. And he was asked specific questions about Senator Greg's OSHA reform bill.

We were asked at that hearing to provide comments on Senator Greg's bill, and we are nearing completion sending him a letter with our specific comments on his bill.

As of yesterday, there hasn't been any indication that Senator Kassebaum is ready to introduce her own bill or there will be any action in the Senate in the committee in the near future on OSHA reform. Most of the activity has been taking place in the House.

Any questions on OSHA reform?

[No response.]

I don't know if you were provided copies of Secretary Reich's testimony before Congressmen Ballenger.

In the Senate, recently --

DR. RINGEN: I think it's important to point out, in that hearing, that Chairman Ballenger asked for help with the construction parts of the bill, that he felt that the bill does not deal well with construction and multi-employer workplaces, and he has no idea about how to deal with those.

MS. MONFORTON: In the Senate, the last couple of weeks, their time was consumed on the regulatory reform bills. The bill in the House, as you recall, passed in late February, and it took some time for the Senate to move on those initiatives.

The debate in the Senate began on July the 10th and lasted nearly two weeks.

It was something that we devoted a lot of time to. We looked at the many versions of the bill that had been circulated.

Our constant focus on that particular bill, and actually on any piece of legislation, is how it will affect worker safety and health.

A lot of the debate seemed to focus on agencies talking about getting caught up in red tape and all the rest, but the bottom line was we wanted to look at those particular provisions and say, how is this is going to impede our ability to protect workers. That was what we really tried to focus on.

At one point, Senator Kennedy introduced an amendment to Senator Dole's bill. There was about an hour and a half debate. It was an interesting maneuver, an interesting idea that Senator Kennedy had, and it would have exempted OSHA and MSHA from the specific provisions for risk assessment and cost benefit in the bill and replaced it with language that was in Senator Greg's OSHA reform bill.

There was much debate on it, and that amendment was tabled at the request of Senator Kassebaum, and there was a vote on it, and I think it was like 58:39, or some vote like that.

Like I said, there were two weeks of debate on reg reform. There were three cloture votes, and they did not approve the cloture vote to shut off debate on that particular bill, so it's hanging out there.

As we understand it, there's some behind the scenes discussions with a couple of democrats who are interested in still moving a regulatory reform bill forward, with some modifications to the Dole bill, but it looks like they'll have to take that up in September when they return from the recess.

The other interesting item had to do with corrections day, which was an initiative proposed by House Speaker Gingrich to correct what had been called stupid or dumb regulations, in a somewhat expedited fashion.

There was a corrections day hearing held in the economic and educational opportunities two subcommittees, and they were looking at an OSHA regulation or a regulation for respiratory protection, and how it affects fire fighters.

In that same hearing, they were also looking at two other Department of Labor regulations.

We were not invited to testify at that hearing. Instead, they had a person who was advocating the change to the regulation, and they had the fire fighters union at the hearing.

There was interesting discussion about the rule, and at the end of the hearing, the chairman pretty much decided that that issue was a little too complicated to handle through an expedited hearing or expedited maneuver, and so that particular corrections day measure was dropped.

Congressmen Vuconovich had introduced a bill that would have made this correction, but what we've decided to do in discussions with her and the people in her state who have a particular problem with the regulation, we agree to help them work it out at the state level, and so that was a corrections day measure that we were paying close attention to but actually it kind of took care of itself through the hearing process.

There are numerous other bills that we are keeping track of. There's a consultation bill, there's a bill on equipment that Congressmen Andrews has introduced in the last couple of years.

It's called the Occupational Safety and Health Personal Protective Equipment Act.

The employee involvement, the team act, is something that we're tracking with regard to trying to figure out how that would mesh with our safety and health program initiative, so those are all other items that we are keeping track of in terms of what's going on in the hill.

I would be happy to answer any questions that you have or your reviews on legislation.

DR. RINGEN: Bill.

MR. SMITH: I'd just like to say that --

DR. RINGEN: You've got to use a microphone, please.

MR. SMITH: -- as a member of this Committee, as well as the Operating Engineers International, it's a major task that you guys have to overcome your office, as well with Joe Dear.

In talking to a lot of contractors, as well as the labor groups, I guess coming from the right side where it's coming from, there's a lot of the contractor representatives and associations that think that's way too far right, where they're going.

In addressing that, I know Joe has put in some of his new policies of focus inspection and some other areas of construction, so it is a good check and balance to the system.

I'm hoping that as we hear from previous reports that it doesn't come out the way it is presented, anyway, because I think everybody in this room understands that you need some enforcement factor there to be able to correct some of the problems out there because not everybody are good contractors, and not every worker is a good employee, either, in that sense, so you definitely have to keep them both in line. This has to be a means to do so.

I just want to say that we applaud what you're doing, and I think we're going to have to really pick up the pace and get on the ball and try to fix some of it.

In dealing with local politics, the way I had before I came here, I know that the President has the veto power to hopefully stop bad legislation in the end.

It's just that he, like all executives at that level, don't want it to hit their desk so that they have to do it, and I think that's where we all have to get together and work out these compromises before it gets to the table.

So I'd like to say that, you know, it's a major task, but there's some areas that need to be cleaned up but definitely not in the direction that the legislation is written as it is right now.

MS. MONFORTON: Yes. That came up at the hearing that Joe Dear testified at a couple of weeks ago before the Small Business Committee.

It was an interesting dialogue. It was supposed to be a forum where Joe Dear was on a panel with four or five small business people, and they were supposed to be talking about the burdens of regulations and what OSHA is doing to reduce some of those burdens.

The members of the Committee, several of them, really took it as an opportunity to vent their frustration, their anger, what they're hearing from some of their constituents about OSHA.

While most of the small business people were very interested in what Joe Dear was saying and what his initiatives are, they're still not convinced but seemed to indicate they wanted to give those programs a chance.

Their major concern was that they believe Joe Dear is well meaning and an excellent public servant, but they're not sure that, when he leaves, how many of these things will remain in place, and that's why they were saying that some of legislation is important, and that's what we heard at the hearing.

DR. RINGEN: I was struck at the Ballenger hearing about the testimony from the North Carolina State OSHA, where they talked about how consultation in absence of enforcement is useless, and that these are not two separate concepts, which is an issue that we're going to come back to.

Jack, are you in agreement?

MR. POMPEII: The only analogy that I could give this Committee and the people in this room is when I was superintendent, division of safety and hygiene in Ohio with the Industrial Commission, I had 313 consultants. They fairly much just sat around in a huge industrial state because I think Federal OSHA only has 55 inspectors for 4.5 million workers, and maybe 300,000 workplaces.

I kind of parachuted out over Oregon 8 years ago, and the whole thing has changed, because I have approximately 100 inspectors for 1.5 million workers, a large cadre of consultants, trainers, and technical people to assist our employers and employees of the state.

I absolutely applauded Charles Jeffers' testimony because just the fear of Jack and his enforcement people, which we feel is very reasonable in Oregon, we have low penalties and I feel we do the right thing, the employers of our state flock to consultation and training and technical assistance.

As a consequence, probably the statistics for this past year '94, will have six years of incident rate reduction of injury, illness, and fatalities, with an increased workforce and an increased high hazard industry.

So I really think the two things of the Ballenger bill that really bother me, all the other politics aside, if you change the tenets of the law, first instance warnings and employees can't complain; I think we go back to the days my ancestors in the steel mills of Youngstown and Steubenville, Ohio, when we averaged about 30 deaths per month in the mills.

I just think you need a good combination of enforcement, consultation, and training and technical, and the bad actors will be dealt with with enforcement, and the majority of employers are good, and they want training and assistance and consultation. I concur with that.

DR. RINGEN: Al, do you have any comments on this? Now that you're retired, you can express yourself fully.

MR. MEIER: I predict that if you get rid of enforcement, you won't have any need for consultation, and I think lawyers probably prefer no presence not any presence, and I guess consultations are the lesser of the two evils.

DR. RINGEN: Anything else?

[No response.]

DR. RINGEN: Thank you.

MS. MONFORTON: Thank you.

DR. RINGEN: We will now precede, then, with the main issue for consideration at this two-day meeting, which is the Proposal for the Protective Standard for Musculoskeletal Disorders.

We're going to need the overhead projector.

As I said, what we'll do before lunch is, we have about an hour, and maybe make the presentation and somewhat less, so we can have some questions.

We will have Stu's overview of the standard before lunch, and then we'll immediately after lunch, at 1:00 exactly. go on with the panel's. We have asked time to give comments.

COMMITTEE DISCUSSION ON DRAFT PROPOSED

PROTECTIVE STANDARD FOR MUSCULOSKELETAL DISORDERS

IN CONSTRUCTION

MR. BURKHAMMER: Earlier this year, Joe Dear came before the Committee, and he challenged us to develop a standard or put together some thoughts regarding musculoskeletal disorders in the construction industry.

So we formed a work group and have been working very diligently ever since to put together this request.

At our last meeting, the Committee had a book -- which Bill brought his copy there for those of you who haven't seen it; it's about 4 to 5 inches thick -- of research that the work group performed.

We looked at all different types of musculoskeletal disorders, a tremendous amount of statistics to support the need for a musculoskeletal disorder standard of some kind, and there is a tremendous amount of statistics in that book that the full committee has had the opportunity to see.

The Committee was made up of Bernice Jenkins, Al Meyer, Jack Pompeii. Anna Maria served as our medical advisory; Bill Smith and myself.

And then we had some subgroup members from outside the Committee, Scott Snyder from the Center to Protect Workers Rights, who acted as our Secretary and data collection agency; Claudia Harris from the Plumbing, Heating, and Cooling Contractors; Peter Huddleston from Lawrence Livermore Labs.

At various times during our deliberations, we had representatives from the Labors, Union, the Building Trades, and ABC. So we had quite a mixture of people that were in and out of this process during various times.

Needless to say, it was a very difficult task, extremely controversial, and we had many different views represented during the process.

I kind of equate the development of this draft to back when some of the other ACCSH committees in past worked on the HAZCOM standard, the asbestos standard, and Subpart R.

Everybody has a different thought, everybody has a different view, and it's very difficult to find common ground.

As the work group noted in our previous publication, there is a need, in our opinion, for some type of standard or document that addresses what we think causes a great portion of injury in the construction business, and that's musculoskeletal injuries.

There are several related issues that go with musculoskeletal disorders, and they're not all easily defined.

Housekeeping, material handling and placement, size, weight and dimension of the material that you're handling, and the equipment that you're handling; Workplace positioning; Physical body motion, and the list goes on.

In addressing this draft, the work group discussed and took into consideration all of these issues.

In addition, at length, I might add, we discussed the difference between large and small employers.

A personal note that I'm getting a little tired of hearing is that Bechtel and the large contractors can do it but, gee whiz, the small contractors can't do it.

So I kind of interpret this as saying Bechtel and large contractors can provide safe workplaces and the small employers can't. Now, that's a pretty blunt statement on my part, but when you listen to all of this crap that's going around, it tends to get to you after a while, and that's what people tend to make you believe.

Bechtel and the large contractors have lots of safety people, they have big staffs, they have lots of money. They can do anything they want to do.

Well, believe it or not, Bechtel and a lot of large employers are in business to make money. I know for some people it's hard for them to believe that, because they think that all we do is go around and spend money to have these great safety programs to protect all of these employees, and we do it for free.

Well, we do it because it's good business sense. It's not a question of free or cost, it's a question of what's right and what's wrong. I think those of us in this room know what's right.

When you look at musculoskeletal disorders and the types of injuries we're seeing, the majority of them can be related to some type of motion or lifting or straining that I've mentioned earlier.

I think we also have to ask ourselves a question, and Bill brought it up earlier today when we were talking about OSHA in general, and it's real popular now for everybody to stand up and take shots at OSHA.

If you think back to pre-1970, '71 when there was no OSHA and all the people that were injured and all the people that were getting hurt, and you talk to some of the old building trades people, my father being one of them, my uncle being one of them, my brother being one of them, getting hurt was a way of life in the construction industry.

That's just the way it is. I expect to get hurt, I expect to go to work. But gee, I might get hurt. That's life in the construction industry back in the old days. That isn't life today.

You ought to read several letters that a lot of the employers are getting now from wives and mothers of construction employees, saying that they really appreciate having their son or their husband go to work and come home at night the same way he left in the morning, so they don't have to get a call in the middle of the afternoon or later that night when their husband or son didn't come home, saying, oh, the reason he didn't show up is he's in the hospital, because he got hurt today.

In 23 years, we have had an effect on some of those things. OSHA has made a difference. I think ACCSH has made a difference, too.

This may be one of those standards where we step out of the box and do something different. We do make a difference. It's a change. It's different from the norm. It's something that everybody says, oh, gee, why do we have to do this. It's just more paperwork, it's just more this, it's just more that. We do it because it's morally right.

I think if we can eliminate a lot of the sprains and strains and back injuries in the construction injury, we can reduce a lot of the workers comp costs, we can reduce a lot of the injuries, and we can keep the construction environment going and working safely.

With that little Southern Baptist preacher speech, we'll move on with the slide show.

This cartoon, maybe some of you saw it, appeared in a magazine called Workplace Economics -- Ergonomics -- which was the July/August issue. It kind of depicts in general construction and the different types of musculoskeletal movements in construction.

I particularly like the bottom left-hand corner, the fellow with a jackhammer. That's one of those non-protective vibrating tools, and it vibrates your whole body.

But you can look at that and see some of the different types of work, the roofers, the hammering, the sheetrock, mailing, vibrating, chipping, toting, carrying, scaffold work.

When you combine all of the different tasks in construction that we do today, a great portion of them can be related to musculoskeletal movement and musculoskeletal type disorders that we are seeing.

So what I'm going to present to you today is a summary of the musculoskeletal disorders in construction draft standard that we have worked on and have progressed to to date.

What we have done may not be what we finally get to. The Committee put this together. We're anxious today to hear the presentations from the public. Hopefully a lot of it will be good substance that we can think about and may incorporate to make this a better piece of work.

It's not a final draft, even though it says that. It's a final draft for the purposes and presentations to this Committee today, but it's certainly not a final draft to present to OSHA, because none of you have had a chance to say anything.

So one of the reasons I'm here today is to listen to what you have to say, and I hope you have a lot of good things.

Again, I want to relate, like I did last time, when we started work on this; this is not an ergonomics standard. I related in my last presentation that my definition of ergonomics is factory workers, chicken plucking industry, meat packers, assembly line work, where you do the same thing over and over and over and over again for 8, 9, 10 hours a day.

Construction is different. Every employee on a construction site does not do the same thing every minute of every day. They do all kinds of different things that relate to different parts of their body and have different effects on the musculoskeletal system of their body.

That is why the name of this is musculoskeletal disorders in the construction industry.

The "Purpose" section of the standard -- and, by the way, upon completion of this, I have handouts of the slide show which will be back on the table for you to pick up, and we have copies for the Committee.

The "Purpose" Section address the occurrence of work-related musculoskeletal disorders in construction. We've revised the signal risk factors and made them applicable to construction type work.

We established a 2-hour single work shift exposure limit.

We deleted the trigger mechanism of when a musculoskeletal disorders is considered.

We revised the multi-employer worksite section to require contractors and others to provide their employees with protection to meet the requirements of this section and to "coordinate" their efforts, not share responsibility for compliance, and that's a big change from the original.

We eliminated the "grandparent exceptions" for employers with previous programs because we really don't know of anybody in construction nor have heard of anybody in construction that has an MSDS program.

If anybody knows of any or we have some as examples, please share them with us.

We've revised the checklist. We've had a lot of comments about the checklist and a lot of people in the industry that I've heard comments from have questions and concerns about the checklists, so we tried to make the checklist more construction simple and user friendly.

We changed the completion date to 18 months for all employees to do task analysis.

We deleted references to farm and agricultural work because it is a construction standard.

We deleted the "quick fix" section of the standard because I don't think this particular thing is a quick fix situation. This is a long-term, long-time fix situation.

Whenever controls are required, they are to be controlled to the extent possible. We played with a lot of different words here: "in a timely manner," and that was one of my favorite ones, and the Committee tried for a long time to get me to define "in a timely manner," and since I couldn't define it, we changed the term.

Problem tasks still exist after extent feasible, and when you've done all you can do and you still can't get to the point where it is a nonhazardous situation, we put in that we will monitor for continuous improvement.

When new technology comes out, we can use it.

We will continue the annual refresher training for the employees so he understands that we have done all we can do to fix this particular tax, and we can't get it to the point where it will not be perfect, so he still has to work in this particular area or she has to work in this particular type of environment.

It no longer limits personal protective equipment to preclude support devices worn on the wrist and back.

There is a NIOSH study that has been out about back supports. We and Bechtel have done a comprehensive study, which we will be forwarding to NIOSH in about a month, about a three-year study we've done on the use of back support.

I think they can be work, and they can make a big difference in your back injuries if they're used properly.

Control measures for manufacturers: We put in a whole section for manufacturers for them to label the weight of the packages that the employees are required to lift so they're not guessing what it weighs or what's in it;

Determine how it will be handled. Can the manufacturer supply lifting handles or some type of mechanism to make it easier for the employee to handle the material or equipment; and, Label with the weight and dimensions of bundles and equipment, et cetera, so there is no guessing as to what you're doing.

We deleted Section G altogether, Ergonomic Design and Controls for New or Changed Jobs.

When you take a look at the tasks, you're going to catch those anyway, so having a section dealing with changed jobs is relevant, because whenever you change jobs or perform a new task that you don't have a task description of, you're going to have to do one.

The one thing that we wanted to make sure of, that you only had to do a task description or definition once. It is transferable to any other project you have or any other job you have.

So if a carpenter, for example, is putting up sheetrock, or someone is putting up sheetrock, and you have a task description of putting up sheetrock, you only have to do it once. You don't have to do it for every task involving sheetrock.

Remove the employee information requirements to the training section, where we think they really belong, because employee information is training; you're providing something to them.

It allows employee representatives access to copies of the standard, and there's some ways that it has to be done to do that.

We deleted the references to ergonomic teams in the training session. It's not an ergonomic standard, and we also do not have musculoskeletal teams.

We changed the completion date for training to "immediately" for information; 6 months for people doing job analysis, and 2 years for those doing task analysis.

We required that employers make available rather than provide various information to the health care provider within 5 working days of initial injury. This is so the health care provider can determine and help him to lay out a recovery plan for that employee.

We change musculoskeletal disorder management plan to recovery plan because that's the name of the game, is to get the individual recovered and back to work.

We changed the requirements for employer to ensure plan is followed at all times to only "after employee returns to work." It's very difficult to follow a plan when you don't even have the doctor's diagnosis yet.

So we're saying we get the doctor's diagnosis, we find out if there's a job the employee can perform, and then after that we monitor his recovery.

We deleted the record keeping requirements that transfers all records to NIOSH and former employees if an employer goes out of business.

We established a 3-year retention requirement for checklists, tasks improvement processes, and training materials.

All record-keeping information will be kept in accordance with 1926.20.

We changed all references from "workplace" to "worksite".

We changed the term from "job" to "task".

We revised all four Appendices to reflect them and make them construction sensitive.

We changed the reference from "designated representatives" to "authorized representatives", for legal reasons.

Appendix A we made mandatory. It's a simple explanation of the standard. It's tremendously reduced, and it's extremely simple to understand. It helps guide you through the standard.

Appendix B is non-mandatory. We added construction-specific examples at the end and took out the manufacturing examples.

Appendix C is mandatory. It's simplified to fit construction. Anna Maria was a big help in revising this standard with her medical background.

Appendix D, the training appendix, is mandatory; and we simplified it to reflect construction.

Basically, the work group's recommendations to ACCSH are that ACCSH Committee review the work group's final draft, which has been mailed to all of you.

ACCSH Committee, we listen to the public comments from concerned individuals, which we will hear this afternoon after lunch;

That ACCSH allows the MSD work group to continue work on the final draft, incorporating good ideas and comments that we hear today; and,

The work group report is presented to ACCSH Committee tomorrow, which I will present after I listen to the public comments today. At that time, I may or may not have further recommendations for the Committee.

Thank you.

DR. RINGEN: Thank you very much, Stu. That was the shortest 1-hour presentation that we've had in a long time.

Also, I want to stress that the activities of this Committee's private enterprise are volunteers, and Stu, you and the work group have done a very, very fine job, which at least I think all of us on this Committee want to commend you for having done it, and this has been an enormous undertaking.

All of the other members of the Committee that have helped you have done a tremendous job. I think everybody here has just about had input into in one form or another during its development.

Are there any questions for Stu about the changes that have been made in the documents since he last presented it in May?

[No response.]

If there are no questions, I'm going to make a few comments with regard to this overall issue and the rest of the day.

We want full input into the development of this document. The purpose here is to create a document that we think will be relevant to the industry and that we think can address this problem, which I think all of us on the Committee share an agreement about is very substantial.

ACCSH is an Advisory Committee. OSHA, at one point -- Joe Dear, in fact -- asked us if we would look into this particular issue, because he recognized it was going to be a very difficult issue, and we tried to create an open and a fair process.

The working group meetings have been well publicized, and interested parties have been invited to participate, and Stu made a point of bringing out the diverse groups that have participated and had discussions with the work group during its deliberations.

At the same time, this Committee, as a private undertaking, establishes and has always established work groups that are also private and keeps its activities private.

This is not a rulemaking forum. We don't get involved in rulemaking. We don't have formal rules for how we operate, except that it is private. As a result of that, we try to keep the deliberations of the work groups, certainly the products that are being developed by the work groups, private until the time the work group thinks it's fully enough developed so that it can be shared with a broader community for comments.

That's almost necessary in order to get anything accomplished at all.

Now, in this case, an earlier draft of this -- maybe it was the final draft, I'm not sure -- was distributed and by mistake to the Building Trade Safety and Health Committee, head of this meeting.

It was distributed by Scott Schneider on my staff, and I only became aware of this about a week or so ago, when Stu brought it to my attention, I think Holly as well. I think that had been brought to your attention by other people here.

That should not have happened. Scott was under the understanding that this draft was to be distributed to everybody and thought that this was the time to do it. So I apologize to all of you for that mistake.

At the same time, I want to point out to you that our objective is to get everybody's views as fully as possible, and so today, when we're having public comments, we have 9 groups that are going to participate and make public comments, and all of those groups are industry representatives. So it's not like we're going to get an unbalanced response to this.

Even though some of you may say that you've had short time to review the document so far, I doubt if your review will be any less rigorous than what the building trades may have engaged in.

So since I've now dealt with this issue that's been of concern to some of you regarding our procedures, I want to restate what they are.

They're private; We do engage, as fully as possible, in public activities and making our activities public;

We do try to keep the products of our work groups private until such time when the work group chairman decides that it's time to release them. We intend to keep working in that way in the future.

We also intend, when it is for us to make recommendations to OSHA about a particular issue like this when we start from scratch, to make sure that we have had input from all of the concerned parties, and we will take that input very seriously.

It's not like we're going to ask you to make comments here and then ignore what you say. The purpose is to get what you have to say and then create a document that we all can live with, hopefully, in the future, so that we can address this problem.

I also want to express two views of my own before we get started this afternoon because I will ask all of you to make presentations about these things.

The first view is that musculoskeletal disorders are epidemic among construction workers, an enormously big problem. I want to hear if you disagree about that statement and why you disagree with it.

All of the data that I look at, whether it's chronic or acute musculoskeletal disorders, are of an enormously high incidence, much higher than it should be.

The second is, to reiterate a little bit what Stu said: That is, this thing about small businesses and the difficulty of complying with this.

I just want to give you a little anecdote to think about because it's brought this to my own way of thinking, and it's a personal anecdote.

Two years ago we engaged in renovation of our house. Not a big renovation; ended up being much bigger than it should have been, but that was our fault. But it was a renovation where we put out for bids. We had an architect design it, put out for bids.

Our RFP contained five different aspects of this job. We required each contractor to bid each of those separately and then in various combinations to see what we wanted to go ahead with.

This also required structural alteration of the house, and we required the contractors in their bids to present plans for how they were going to make the structural operations, and have those plans certified by a professional structural engineer.

This was a fairly complicated bidding process and a fairly complicated proposal for contractors to make. Nevertheless, 5 very small contractors had absolutely no trouble making them, had no trouble going out, getting the structural engineers, coming back and presenting to us in great detail their plans for this so that we could select one of them.

The contractor that ended up being selected would certainly be defined as a small contractor. It was himself as a carpenter and his helper. That was the entire firm.

Now, they were able to go out and subcontract for HVAC, for tile setting, for all of the other things -- electrical, plumbing, and everything else. They were able to get a structural engineer during the bidding procedures and review the whole project and figure out what needed to be done.

It's not like this stuff can't be done if it is required by somebody. If it is required, it's clear that contractors, large or small, want to comply with it. The question is, how do we get to that point in a manner that is rationale and acceptable to all.

I think when it comes to the business product itself, the business of selling whatever you are doing, of obviously getting the business, when it's willing to go to great lengths.

To things when it comes to protecting safety and health, it seems to be unreasonable.

So I'm going to ask you about that sort of an example and whether you think it's unfair of me to say that we can put burdens on small businesses, and we do it all the time in the course of the selling or buying services, and small businesses respond to this all the time in order to get business.

Those are my own sort of prejudices that I bring to this consideration and to the discussion that we're going to have this afternoon, or the two views that I feel are fairly fundamental.

There may be other members of this Committee who have other things to add to that that they will be interested in and, if so, I think out of fairness to those who are going to make presentations, might as well deal with some of those now.

Any comments? Bill.

MR. SMITH: I would just like to say one thing to the audience.

I didn't know also about Scott handing out the draft, but if he did, I mean I had a draft from the Committee. This is what would have been handed out to the Safety and Health Committee over at the Building Trades.

As you can see from what Stu's presentation was today, this is the draft that they're working from now, which is nowhere near in comparison to the material that was handed out. Of the people that got it, I don't know how many even looked at it, read it, or did anything with it, but basically this is where we're all starting from again.

So I think everybody has the same opportunity, from this point, as Stu is saying, to come and go forward from where we are here, not from where we started from way back when.

In response to that, it's just that a lot of the concerns, I'm sure, have been addressed and deleted and changed and remanufactured and molded into construction, because it is a different environment.

Going from that to this and probably from this maybe to something else, is I think something where Knut wanted people to address what's in it not the process of how we got here; just what's in it.

Thank you.

DR. RINGEN: Any other comments?

[No response.]

DR. RINGEN: We're still a little bit ahead of time. We're not going to start the afternoon session until 1:00 because that's what publicized, and we're committing to sticking with that. We'll take a lunch break now and return at 1:00.

A F T E R N O O N  S E S S I O N

(1:05 p.m.)

DR. RINGEN: We will start out with public comments. The first panel will be David Delorenzo, Director of Safety and Health from the Sheet Metal and Air Conditioning Contractors Association.

MS. JENKINS: I have some comments.

DR. RINGEN: Okay.

MS. JENKINS: As part of the MSD workgroup, I feel I need to make a comment.

You heard some comments from Stu earlier, and he reflected that everybody on the Committee was in favor of an MSD standard. I think I said from the very beginning that as part of the industry, I was not, and I don't agree with all of the statistics that are in this book.

You can construe statistics to make them look like what you want them to look like, and there is a difference between Bechtel, Trumbull Corporation, and a company like Ted Webster's trying to implement a standard of this nature.

So I just wanted to go on record as saying those things, that should the ACCSH committee propose the standard to go to OSHA, I'll vote negative.

DR. RINGEN: Thank you, Bernice.

The first panel is David DeLorenzo, Claudia Harris, Director of Government Relations for the National Association of Plumbing, Heating and Cooling Contractors, and Peter Chaney, Director of Safety and Health Services for Associated General Contractors of America.

I have asked you to speak to about 10 minutes a piece, and I will time that. We will start with David DeLorenzo.

PUBLIC COMMENTS ON DRAFT PROPOSED PROTECTIVE

STANDARD FOR MUSCULOSKELETAL DISORDERS IN

CONSTRUCTION

MR. DeLORENZO: I'm actually going to defer to Claudia Harris, who is a member of the work group. She would like to start off.

DR. RINGEN: Okay.

MS. HARRIS: If I could, and again with your approval, Mr. Chairman, initiate the comments through not only my role as a representative of a management employer trade association, and then each of the individual groups can also give their presentations.

I'd like to make a couple of general points in the beginning. That is, I fully understand your requests not to discuss or not to concentrate on the process, and that you are seeking comments today on substantive issues within the standard.

I have to say that I was not expecting that, and that my remarks, as well as those of my colleagues will, for the most part, talk about the process, the procedure by which this policy was developed.

You had said earlier today that the meetings of the Musculoskeletal Disorders Work Group were highly publicized, openly participated in, and I guess I would have to disagree with that vehemently.

First of all, they were closed to only those work group members who had participated in the first meeting.

Second of all, there was no publication or public notice of those meetings as far as I am aware, and if you have any information as to that, I'd be happy to see it.

DR. RINGEN: I think that the notice was given at the time that these meetings were held.

MS. HARRIS: Right.

DR. RINGEN: We don't publish the dates for meetings of work groups.

MS. HARRIS: Right. Well, then, I guess that would contradict your statement this morning which said they were highly publicized and there was wide participation.

DR. RINGEN: Well, it's publicized to anyone who was here participating in the Committee.

MS. HARRIS: No. The meetings were not open to the public. They were closed to those members of the work group. So I guess that would be my first point.

That is the reason why my comments today and those of my colleagues will address the process and procedures by which this draft was developed, rather than the actual substance within the standard.

DR. RINGEN: Well, before you do that, I mean, this is a very practical question here.

You may disagree with the process that was followed. The question is whether you disagree with the substance of the document. If you don't disagree with the substance of the document, then the process isn't very important.

If you disagreed with the substance, then we want to know why.

MS. HARRIS: Well, then I guess I could start from the beginning and say that I absolutely disagree with the substance within that document, and therefore I would like to discuss today the procedures by which that document was developed.

DR. RINGEN: Can you be a little specific about what substance within the document you disagree with?

MS. HARRIS: Yes. I guess the first would be that common sense dictates that in the standard setting process, it should begin with the identification that there is actually a need for that standard.

I do not believe that OSHA, ACCSH or the ergonomics, or musculoskeletal disorder work group has identified a need for that in the construction industry.

After that type of a need is identified, common sense would prevail that the next step would be to proceed to worksites, to have firsthand worksite data collection, both as to what the specific problems are but also to seek applicable and common sense and reasonable solutions to those problems, through demonstration projects, pilot programs, beta testing; there are a lot of different terms and techniques to collect that data.

That process should probably take several years, and then that information should be crunched and developed and considered by the standard writers within the draft proposal process.

This process by which this standard did not start that way and, in fact, in my opinion, it's going backwards, and I think my colleagues within the industry would agree with that. So that's, I guess, the main crux of my comments.

I mean, I have several more points that I would like to make, but that's why I disagree with the standard.

DR. RINGEN: When you say "it's going backwards," what do you mean?

MS. HARRIS: I don't believe that OSHA has identified a true need for this type of standard in the construction industry, specific to construction.

I think that the numbers and statistics, as Bernice had said earlier, have been skewed. I do not believe they are realistic. I do not believe that they address the construction industry.

They're general industry. They're a fixed site. The percentage of articles -- and I think that this can be discussed at length by some of my other colleagues -- do not address the construction industry.

I think that the burden for OSHA to prove that there is or identify the need, to begin with, has not been completed.

MR. JONES: I'm Stephen Jones. I'm from the solicitor's office.

Just to be really clear about the way in which a work group is organized and which it is intended to operate, this is the stage at which we have not, in fact, made a finding that there is a particular rulemaking product that we are going to be producing.

This is the stage at which we are, in fact, obtaining information, and we, through work groups and other means do attempt to establish the data base and the nature of the activities which lead to the particular hazard that we are going to try to address.

So you are very correct in pointing out that the proper progress of a rulemaking or the development of a rulemaking is to first get an understanding of what is going on, and then develop strategies for addressing that.

When ACCSH sets up work groups, that is to contribute towards that process, it is not to have a work group present a finished product or recommendation or a consensus of its own.

The work group mechanism is supposed to be an accumulating, a gathering together of viewpoints, and of information which will then enable the Committee, when it is, in turn, presented with a proposal from the Agency, to act on that in an informed and useful manner for the purpose of setting regulatory action.

So there doesn't haven't to be any disagreement about the overall purpose. If this work group has certain actions which have occurred with which you disagree, as a member of the work group, you are perfectly entitled to come forward either in the work group meetings or in a presentation, such as you are making now, to the Committee and addressing those points to the Committee.

MS. HARRIS: Right. But it was not an open process, and I do not believe that OSHA can claim that this is an open participatory process, whether it's fact-finding or data collection or whatever you want to call it, it is not open. It was a closed group, and I was the only non-Committee member representing this industry, the construction industry, upon the departure of Suey Howe when she left ABC.

I am one person representing, I don't know, 5.4 million workers in the construction industry. You know, I don't feel comfortable with that role, and I hope that OSHA doesn't consider that a participatory process.

MR. JONES: Okay. I could say more to that, but, Stu, do you have something you want to say also?

MR. BURKHAMMER: Yes. Let me address that.

Yes, Claudia is correct when she says that she was the only industry association representative that sat in the work group. The reason she was the only industry representative is because she's the only one that volunteered to participate.

Every other one of you had the opportunity to be on that work group, and you chose not to. Whatever reason, is yours, not mine. I can only fill the work group with people that offer to be on it. I can't read minds, I can't guess.

She offered, we accepted it.

Suey offered, we accepted her.

Peter Huddleston offered, we accepted him.

We would have taken a great number of people who would have volunteered. If you done volunteer, I can't figure out who wants to be on it.

MR. BURKHAMMER: Just a point, Claudia. I think you made mention you represented 5.4 million workers. I would suggest that you represent the contractors and you don't represent any workers, and that's not --

MS. HARRIS: Thank you, Bill.

MR. BURKHAMMER: -- a personal attack to you, but I don't think there's any workers represented on this Committee.

MS. HARRIS: Well, I guess I disagree, in point, and that is that each of our contractor members within the Association, we truly do represent the workers, contrary to --

MR. BURKHAMMER: I again take issue with that and would like to debate it with you, but I don't think any contractor association particularly represents the workers.

MS. HARRIS: Okay.

MR. BURKHAMMER: I think they represent the contractor associations.

MS. HARRIS: Okay. Well, let's not get into that.

MR. BURKHAMMER: We could do that if you like.

MR. RHOTEN: Save the point.

DR. RINGEN: But you make the point that you don't think that, in this document, there is enough information on the problem and defining the problem.

MS. HARRIS: No. I didn't say there's not enough information. I said that you haven't identified that the problem exists.

A couple --

DR. RINGEN: Yes.

MS. HARRIS: I know I'm probably exceeding my time through the question/answers, but I'd like to just run through --

DR. RINGEN: That's okay.

MS. HARRIS: -- okay -- run through a couple of points.

Some of them are in response to comments that were brought up this morning as well as through my experience in working with the work group, so they're not necessarily in any particular order, but I would like to bring them to your attention.

The work group -- and, again, you did mention this this morning -- the work group was informed last month that not everyone in the work group had been playing by the same rules in terms of keeping the document internal.

That raises a great concern for me because I'm fairly new to the participatory work group process within OSHA, and I did play by the rules.

Maybe I was naive, or I didn't play the game right, but it really concerns me the one-half -- and I'm not saying that they're equal halves, but one segment of the industry, that being those of management and employers, did not have the equal opportunity to participate in the process.

And I understand your comments this morning, as well as Stu's, that we started off with a 5-inch thick binder and we ended up with basically about a 1-inch binder with a 16-page standard.

That's not the point. The point is that that information was shared freely within the building trades, and I kept my word and did not share that with my colleagues within the Association community.

I do not declare myself a ergonomist, nor am I a safety and health manager. I would have greatly liked to have depended on my colleagues for their assistance and expertise.

DR. RINGEN: I have apologized to you, and that's water over the bridge --

MS. HARRIS: I realize --

DR. RINGEN: -- something we can't do anything about. We will take comments fully on this and then make sure that everybody has a full say on it. Had this been a rulemaking process, it would be a very serious problem.

MS. HARRIS: I do understand that. However --

DR. RINGEN: This is just advisory.

MS. HARRIS: -- within the process, there were several major decisions that were done at the work group level of which my colleagues within the trade associations do not have the opportunity to participate.

VOICE: They do now.

MS. HARRIS: Well, they do now, but they don't know what went on in the past.

DR. RINGEN: Well, the document is what's important.

MS. HARRIS: The creation of the document and the process by which it was developed is also important.

DR. RINGEN: I agree with you on that, and again, I can only apologize.

MS. HARRIS: Okay.

DR. RINGEN: I believe it circulated probably a little wider on both sides than we would want to admit, but the aim is to have the process have integrity to it, so that's a fair comment. I've made that point. Now we've got to move on from there.

MS. HARRIS: Okay. Well, I'd like it to be made part of the record. Thank you.

My final point that I'd like to just mention very briefly, in deference to Sue, and he has been a wonderful leader on the work group, and I admire and I respect his expertise in this field.

I understand what he was saying this morning about small and big businesses. I don't think any one of our associations, but I can only speak for myself today, is we understand and do not try and get away.

We understand the need to accommodate the musculoskeletal disorders. It's just that larger and smaller businesses have different resources.

We have different methods, we have different implementation processes. I'm not saying at all, and I don't think anyone is, that we shouldn't be equally accountable to our employees, to our businesses, and the communities around us. I'm saying that they need to be taken or considered separately because they do have different resources, because it's just not the same.

Again, I'm not denying the fact that we must make those accommodations when they are identified, and when solutions are raised.

DR. RINGEN: But then you have to tell us how those should be accommodated then.

MS. HARRIS: Right.

DR. RINGEN: How those differences should be accommodated.

The last time we met, you had an opportunity to comment on this. As well, I raised the issue that 80 percent of employers out there don't belong to any trade associations and don't have the assistance that you all provide your members.

The question is: What do we do with those 80 percent, also in the absence of any kind of regulation.

MS. HARRIS: I think that goes into the question of where OSHA's role is in terms of communication, education, consultation program.

DR. RINGEN: So we'll take into account, and I'm sure that the work group would welcome more information, especially on the second piece, how do you accommodate those differences that you have identified? You can think about this.

Just in answer to that, I know that several small groups met with Mr. Dear in early June. We did offer the opportunity to do several types of projects, demonstration projects. We followed up with other communication.

Mr. Dear did indicate that someone from the ergonomics team here within OSHA would be contacting me at their earliest convenience. That still has not happened. We have made the offer several times and it has not been taken up.

DR. RINGEN: I haven't heard anybody here that has ruled out the option of having demonstration programs. In proposing those, you must think that there's a problem here, otherwise, why would you have demonstration programs?

MS. HARRIS: That's not what I said.

DR. RINGEN: Okay. What did you say?

MS. HARRIS: I said that once you identify that there is a need for that and then you go and do the data collection or the research on the worksite, at that point, you seek solutions, not only to identify the problems but also to find the proper and appropriate solutions, and that's where demonstration projects can come into play, as well as the discovery process.

That's the conclusion of my remarks.

DR. RINGEN: Thank you.

Who wants to go next, David or Pete?

MR. CHANEY: If it's all right, Mr. Chairman, I'll go next.

DR. RINGEN: Okay. Peter Chaney from the Associated General Contractors.

PETER CHANEY

MR. CHANEY: Thank you, Mr. Chairman and Committee Members.

I don't think it's any big secret that the Associated General Contractors is opposed to an ergonomics standard or a musculoskeletal injury protection standard. We base that opposition on the lack of sound scientific data available to justify such a standard.

Last spring, AGC hired a team of researchers to identify the data that would support OSHA on this position. They were unable to do so.

Throughout that process, what they did was they looked at the data that was submitted to the docket after OSHA's advanced notice of Proposed Rulemaking. They identified the key source that attempts to justify a standard for the construction industry, as the bibliography that was submitted by the Center to Protect Workers Rights on Construction, musculoskeletal injuries.

The actual bibliography is commendable. A lot of research, a lot of work went into that, a lot of time. It was obviously done in the interest of enhancing worker safety and health.

What I would like to do is share with you AGC's evaluation of the articles in that bibliography.

In the bibliography, there were 549 articles. Now, there were actually 2 additions to this bibliography. Some of the articles that were included in the first edition were excluded from the second edition. We were unable to determine why so we just went ahead and evaluated all of the other articles.

Now, at first glance, it looks like there are 549 articles, but if you go through the bibliography, you'll see that 65 of them are repeated, some of them as many as three times. So the actual number is 484 articles.

Now, out of that 484 articles, 355 of them were considered by our researchers to be not relevant to the issue of musculoskeletal injury, risk related to construction.

110 of them were considered to be weak, which means they have limitations, such as small population sizes that were extrapolated to an entire industry.

Highly subjective data, such as postal questionnaires, or lack of control groups.

Most of these studies were cross sectional studies, which means they had not control groups, which means you can show no cause and effect relationship. Basically, it means you can't tell how the injuries occurred, is the bottom line.

The remaining 19 articles were based on sound science, but of those 19 only 8 of them showed actual risk to a construction worker.

AGC's position is this. We know that there are musculoskeletal problems in the workplace. We don't know how they're caused, neither does anybody else, near as we can tell, because we can't find the data.

But if you want me, as a safety and health professional, to go to my 33,000 members and attempt to sway them to take a proactive approach on an ergonomic standard or a musculoskeletal injury prevention standard, you've got to come up with some sound, scientific data.

That's my remarks for today, Mr. Chairman. I will be glad to try to answer questions for you.

Any comments or questions from anybody here?

Bill.

MR. SMITH: That's how they're using the BLS numbers, talks about back strains and sprains and injuries to construction workers, which is probably the biggest source of information that we could use; agree?

MR. CHANEY: You're talking about BLS data?

MR. SMITH: Yes.

MR. CHANEY: Yes.

MR. SMITH: Outside of using that, how would your association work with us if we would go forward in trying to document the scientific data? Would your 33,000 members be willing to document that with us?

MR. CHANEY: Sure. We actually had a safety and health committee in July, and are very seriously considering doing our own pilot projects.

What we'll do, because none of us are researchers is, we'll hire some research experts, as we've done, probably the same folks that we used to analyze the data that was out there and do our own pilot projects and ensure that those studies are done correctly.

MR. SMITH: So in the midst of all this paperwork reduction, the contractors are willing to get into more paperwork to document the injuries and illnesses on their jobsites and whether it was work related and what risk or what task was being performed?

MR. CHANEY: The contractors wouldn't necessarily be doing that, the researchers would. We're going to hire these folks to go in and do this for us.

MR. SMITH: So you're still talking about a small group sample out there, though?

MR. CHANEY: I don't know how small it's going to be. In our committee meeting we talked about ensuring that we represent the building contractors, the highway contractors, the heavy industrial contractors, and the municipal utility contractors. That's the way AGC's membership is broken down.

I don't know, within that, we also talked about doing different group sizes. Very much like we do our safety statistics tabulation program, we have different categories within each division, and we thought about doing it that way to see what the differences were.

The committees made a recommendation. It will go before AGC's Board in October, and the Board will make a decision about whether or not to proceed.

MR. SMITH: I hope so. Now, can we get a copy of the report from your research group?

MR. CHANEY: I'm going to have to check and see about that. I shared this information with the ergonomics team when Barbara Silverstein was here.

At that time, my members told me not to give them the actual document until such time as OSHA gave us the data that they have stored away someplace that we haven't seen.

We've tried to get that data. We've begged for it. We've demanded it. We've gone through Freedom of Information twice and have been unable to get it. I'm starting to wonder myself whether it really exists.

I will check with my members, because I would encourage them to release this information to you.

MR. SMITH: Well, only because you ran off some numbers based on your research, and yet you're not willing to supply us with the background information to support the numbers.

MR. CHANEY: As the old thing, you show me yours, I show you mine; you first.

MR. SMITH: I'm not OSHA.

[Laughter]

MR. SMITH: But I am sitting on this Advisory Committee.

MR. CHANEY: I understand.

MR. SMITH: I agree with you, but I'm not OSHA, and I'm an Advisory Committee member, and you're presenting me with information that I'd really like to see, based on what you're telling me the numbers are, because what you're saying is, from 485 actual, you reduce them, that only 8 people, scientifically, out of all of them, had actually what you could consider a work-related injury.

MR. CHANEY: Right. Because of the scientific methodology.

MR. SMITH: Yes.

MS. HARRIS: They're not 8 people, it's 8 articles.

MR. CHANEY: It's the difference between credible and not credible.

MR. SMITH: Correct.

MR. CHANEY: I think, Bill, that ACCSH has enough power to, I believe, convince OSHA to release that data that they have. They've got a survey stored someplace stored aware that they have done, and there is construction-specific data in that.

If ACCSH can have that information, there's a real big problem here. They have tasked you with making a decision about whether or not to recommend to OSHA that they proceed with the standard. How can you do that without all of the information available? I don't know.

MR. SMITH: I'm sorry. I said 8 people, I met articles.

MR. CHANEY: Right.

MR. SMITH: The only thing, in going with the construction lost time injuries from the Corps of Engineers, who have been doing research since the '30s, they still show that spring, strains, and twists are 30 percent of the injuries in construction at the Corps of Engineer facilities. That's big injuries.

It's the biggest one of all the injuries, and that's what this is talking about -- strains, sprains, musculoskeletal disorders.

MR. CHANEY: I know, and most of which are backs probably, are they not?

MR. SMITH: Right. Exactly.

MR. CHANEY: We've got data that shows that 70 percent of the low back injury patients have no orthopedic or neurological damage to their back, so there were some problems here with the data that we do have, and we're just -- we just want to be able to identify that data, if there really, truly is a problem, and there may very well be. We don't know, and we don't believe you know.

But if somebody can show this --

MR. SMITH: Peter, in common sense terms, there's no way that we can sit here and say we don't know.

MR. CHANEY: But you can't --

MR. SMITH: We know, we just don't know how severe it is, but we do know. There is no way you can say you don't know.

DR. RINGEN: Ana Maria.

MS. OSORIO: I just want to make a couple of comments here.

First of all, I'm an OC-MED physician as well as an epidemiologist, specializing in occupational epi.

To me, it really bothers me, when any group -- not yours in particular but any group at all -- tosses out studies or includes them or whatever, and doesn't want to back it up with some criteria.

I think that way you include or exclude an article based on scientific principles, has to be addressed.

I think there is nothing secretive about reviewing data. I don't see why there's a problem. If you truly wanted to help us as a Committee -- and I'm not part of OSHA, I'm just on the Committee -- your people, your scientists, or whatever, who reviewed those, I think they would be more than willing to enter into discussion with us.

I would more than welcome their written comments as to how they critique these articles, because from my review of the literature, and I haven't read all 400-whatever but I've read quite a bit because I've done studies in the area, there are very sound scientifically well done studies which show there's an association with certain kinds of risk factors.

Now, the data that Bill is referring to, I think there's no question in most people's minds, that the construction industry has the highest rate of injuries, of fatalities from these kind of falls that's contained within that standard.

Secondly, if you're talking just dollars and cents, the biggest cost to workers comp are these kind of accidents or injuries, so that you can't dispel that it's a problem, and to me it's sort of like yes, yes, no, no.

If you have some other additional information, if you have a different perspective of what's out there in the literature that I know pretty well, I think that you would be more than happy to enter into a discussion with us and get your scientific people to come and talk with us about this.

I just want to verify what Bill has said, that I don't see why this has to be a "show me yours, show you mine" kind of thing.

MR. CHANEY: I agree with you. I personally would like to release the study to you today. It's not my decision to make. Hopefully, the time will come when I can do that. Certainly, there will be a time for debate on this. I didn't come here to engage in a debate today, I just wanted to come and share some information with you.

There are other articles out there as well. In fact, I'm going to get my assistant to pass those out to the Committee now. Carl, if you would, please.

The literature is showing now that there is a real strong correlation between low job satisfaction and workers compensation claims, and there's a whole lot of literature out there, and it's coming more and more and more. These studies are based on very sound scientific studies.

I'm going to have him past these out. You all can look at these at your leisure in the future.

MS. HARRIS: Again, I just wanted --

MR. CHANEY: The other point I wanted to make is the team of researchers that looked at this, there were two physicians, one ergonomist, and one safety and health professional. They were professionals and they are researchers and they do also, as you do, know what they're doing.

MS. OSORIO: I just want to make one other comment, and that is that, I think it's not a secret that you can sort of buy a scientist to review literature with a certain bias, and that's another reason why I think a blanket statement, saying X number of articles are no good, to me, means nothing unless I see the facts by which they're deriving that conclusion.

I would just want to put a cautionary note on what we're hearing, that we're sort of being told what the end of the story is without being told what the story is, and it's against nothing but you, personally, but in general I'm a scientist and have to be skeptical, unless I'm given some facts to work with you.

MR. CHANEY: That's okay. I want you to know, if you haven't figure out yet, I did that very deliberately because we're trying to get this information from OSHA, and if that's what we have to do to get it, then that's what we'll do.

I agree, you all need to have that data, and I would like to give it to you.

DR. RINGEN: I think you were referring to the -- I'm sorry.

MR. RHOTEN: That's the only issue I wanted to inquire about. OSHA, think you raised that three or four times that you can't get some kind of information from OSHA. I guess I would like -- we've got a representative from OSHA -- to be clear what that information is and deal with there's some information you can't get. What is it? What is that information?

MR. CHANEY: Now, listen, I don't know all the details of this. I just know that the data is there. Apparently there was a survey done. There was a telephone survey done quite some time ago.

This isn't the only data that the ergonomics team told us that they had, but this is one bit of data, one document that they have, that's the results of the survey that they did. I know a portion of that was construction-specific.

That's all I know about it. I just know that the data is there and nobody is releasing it.

MR. RHOTEN: Well, what I would like for you to do is identify what that is, and I think this Board can ask OSHA for that and make if available, try to make it available. Nobody here wants to have something that's not available to you, I'm sure.

You have to maybe identify exactly what that is that they're keeping from you. If you're talking about a phone survey, I don't know how to approach them and ask them about a particular phone survey unless you can identify exactly what is.

MR. CHANEY: That won't be hard to do.

MR. RHOTEN: Are you putting it in writing from OSHA?

MR. CHANEY: Oh, yes. Oh, we've gone through Freedom of Information twice. We've asked them, we've begged them, we've gone on hands and knees. We've demanded. We've done everything we could do.

MR. RHOTEN: Have they answered?

MR. CHANEY: No. No response. We've gone right from Joe Dear to get this, and they're not denying that they have it, they're just not releasing it.

MS. HARRIS: If I could make a point; and that is, perhaps, Bill or someone else on the Committee who is willing to ask OSHA for that information, but also to ask where that ergonomic team is; who's on it, who's running it, where they are right now.

I think none of those questions have been answered today, at least.

DR. RINGEN: I think the work group has requested the information that you're talking about. I don't know what it is.

One comment: I believe the report that you referred to that you prepared was a critique of something that came out of our workplace, the bibliography that we put together at the Center. I think, given that you were kind enough to review it, we've asked for a copy of that review from you a couple of times, and I don't think we've received it either.

So we don't know how to improve the bibliography that we put out, given that we don't have the comments. I think we've looked over it again, and we don't come to the same conclusions that you come to, so it would be very helpful.

Any other comments?

[No response.]

Okay. David DeLorenzo.

DAVID DeLORENZO

MR. DeLORENZO: Thank you. First of all, I wanted to address your request that we stick to the substance of the standard.

I'm sitting here looking at the final draft copy, and it's dated July 7th. This was released

August 4th. I was out of the office August 4th, so basically I've had about one day to review this, so it's going to be virtually impossible for any of the colleagues to digest any of the substance and really give you any positive feedback on that.

I would also like to address Stu's comment about, everybody was free to volunteer for this work group. Perhaps your invitation should be made a little more public and a little more widespread, because I was never aware that there was an opportunity to be on that work group. I don't know if any of my colleagues were aware of that.

That's all I'll say about the process for that. I am not going to be able to talk a lot on the substance of the standard.

I would like to talk a little bit about musculoskeletal disorders, ergonomics, as we say.

Currently, I don't who is aware of what, but industry is doing a lot of work o ergonomics, and we should be looking at some of those studies.

It might not necessarily be called ergonomics or musculoskeletal disorder programs but insurance are driving industry to look at certain tasks through job safety analysis, through their comprehensive safety and health programs.

Safety and health programs are something almost every contractors, small or large, has now, and part of that is hazard evaluation. You know they're going to be looking at these types of hazards through those programs.

Safe lifting techniques that NIOSH has developed. A lot of people are aware of that stuff, and ergonomics, musculoskeletal disorders, those are words that people kind of cringe when they're hear, but they're already doing a lot of the stuff that you're requiring them to do or you're looking at them to do.

It's just not necessarily called ergonomics or musculoskeletal disorders.

In fact, through SMACNA, we have been looking into several projects.

We currently have a small safety and health work group where we're working with the SMWIA; our SMOI trustees, which is our Occupational Health Institute, our NTF, looking at certain strains, certain disorders within our industry because we're going to be unique amongst the construction groups, as we have a manufacturing side, as well as the construction side.

So we do have guys in our fabrication shop who are doing the same job everyday, and that's easy to look at. Basically, we can look at work practices. That's what the main thing is. I don't know whether this standard is going to change the way somebody moves just because that's the way they've always done it.

We are currently looking at it, and we realize construction is going to be a lot harder to work with than fabrication, and we are doing some work on that side. We are looking into what type of problems are out there.

We do have an insurance program. We work closely with CNA insurance, and some other insurance, where we're looking at data.

Tom Soles is group director of our insurance program, and he's going to speak a little bit about some of the data that we've collected over 15 years, and what it has shown, some of the problems with that.

Can we go ahead and refer to you, Tom.

TOM SOLES

MR. SOLES: Thanks, David.

Mr. Chairman, Committee Members, I just wanted to comment a little bit about what SMACNA has done as far as collecting information and evaluating information, because I think, you know, we get down to the issue, are all of the facts in on this musculoskeletal disorder issue, and if they're in, are we evaluating them in the correct way so we can move ahead from what Mr. Jones suggested was a dialogue or a discourse on the issue, and then to some kind of a proposed regulation and whether that regulation is at all necessary at this time.

David alluded to we have a sponsored plan, SMACNA, the Sheet Metal and Air Conditioning Contractors National Association. We represent about 4500 contributing contractors around the country.

We've had a sponsored property casualty program, which includes worker's comp program, for about 15 years. Not surprisingly, one of the leading causes of injury or categories of injury, is musculoskeletal disorders. When you look at that on the service, in terms of frequency, we bump into this 30 percent, that percentage that people have thrown around here at the table.

What does that mean. We have begun the process of going back and looking at that data as specifically as we can.

What we're finding is that the nature of the injury or the cause of the injury are not related to cumulative kind of processes that, in our minds, at least, should be classified as musculoskeletal disorders.

A number of these injuries are the result of falls or slips or trips or housekeeping type things. I don't know what that percent is, to be quite frank with you right now, whether it's going to be a small percent or a large percent.

All I'm suggesting is that there's a lot of information, or people are alluding to a lot of information being thrown around here, and I think you're leaping to a conclusion stage that says, you know, it's obvious; we need a national standard to get this thing fixed.

David mentioned that we, as a national association, are doing a number of things on our own now that hopefully are going to help our member contractors out of this dilemma, that dilemma being -- and their employees -- the dilemma being these kind of injuries.

One of the parts of that analysis or process is is finding out what the real cause is.

My point was just to share that with you today. I guess when we look at this process right now, we would suggest that, you know, there were a bunch of numbers being thrown around and studies and proposals, et cetera, but we think we've taken a leap to a proposal stage for a regulation, when maybe we ought to slow down a little bit and see what we've really got out there.

Are there any questions, Mr. Chairman?

DR. RINGEN: Bill.

MR. SMITH: Tom, you and I know each other for some time now, but the process is still going to be slow, no doubt about it. I mean, that's why what Steve was saying, we're just really in the beginning stage of this process.

But you are basically saying what we have said. I mean, there is a problem out there, just based on the information that you have looked at over the past few years.

MR. DeLORENZO: Well, there's some kind of problem, to what extent; there's a problem with --

MR. SMITH: And that's what I was talking to Pete about. We know there's a problem. We just don't know how severe it is, but we definitely know there's a problem, so we've definitely got to go forward.

MR. DeLORENZO: The numbers we hear, it's the most severe problem out there, and you have the numbers elevated to make it look like it's an epidemic problem, when it may not be.

MR. SMITH: What we have to look at it is just like Knut talking about over in Europe sometime, is that you, like me, has probably worked on your house. Have you carried 8-foot sheets of sheetrock?

When you cut them in have, is it a whole lot better and is it easier to handle and work around?

MR. SOLES: I get the kids to carry them so I don't know.

MR. SMITH: And that's good, but I'm saying that's some of the processes that we may have to look at, is that --

MR. SOLES: No, you're right.

MR. SMITH: -- nationally, we may have to have a standard that says that, instead of 80-pound bags delivered at the jobsite, for an individual to work with, they might 40 or 50 pound bags delivered, and that's a national standard.

MR. SOLES: But that's not a construction standard, is it? I mean, you're talking about manufacturers or producers.

MR. SMITH: Manufacturers are going to have to be included in it, because OSHA can do that because OSHA has done that in steel erection by including the fabricators of the products into the process for a national construction standard for steel erection. So it can be done.

MR. SOLES: I think the place to start, though, is that process or that segment of the issue is with the manufacturer.

I think the sketch showed a jackhammer, and there's some very obviously kind of equipment. We're looking at shears, and we have prototypes being developed for ergonomically designed sheers because of frequency of carpal tunnel.

But that's a very narrow type of an issue, that the response, what I'm seeing here in this proposal, you know, I don't see that response addressing that specifically.

DR. RINGEN: Steve.

MR. BURKHAMMER: David, on your comment about the date, the July 7th date was on it because that was the date of the last work group of the Committee, and between July 7th and August 4th was when all the different segments of the work group were rewriting their particular section.

I could have changed the date to October 4th, but I left it at the date of the Committee meeting; that's why the July 7th date.

MR. SOLES: Yes. I still had wondered when this draft was actually finished, and what the earliest date we could have had it was.

MR. SMITH: It was finished on the first. My secretary compiled the documents, put the tabs in. They were Federal Expressed to the Committee on the 3rd, or the 2nd -- one or the other; I was out of town; I think you all got them on the 2nd or 3rd, something like that. Then they were distributed to you all.

I had talked to Claudia, I think, the first or second, and told her go ahead and get them out to the people, because as she got hers, and we tried to get them out Federal Expressed to everybody.

DR. RINGEN: Keep in mind this is a volunteer activity, essentially. It's the people around this table who do these things. In this case, Stu had to use his own time, his own resources, his secretary, his Xerox machine, and all that kind of stuff to put it together.

MR. DeLORENZO: I understand that. I'd be willing to send a courier over to pick it up any time, on an earlier date, if it's ready.

MR. SMITH: No, the distribution isn't a problem.

DR. RINGEN: And the production. It's a production problem, not a distribution problem.

MR. SMITH: And on that comment, because me and Pete work together, and Pete knows I'm fairly shooting from hip level all the time, and it's never really a universal, not an issue with me, it's a fact of what we're doing.

You've been in several meetings -- several, several meetings -- with this Committee and had the opportunity to approach any of us to say, can I help, can I participate in that, can I volunteer to do something, to work towards getting to a resolution, and it never came up.

That's anybody else out there that says that it was a closed door policy, because it never is, and it should never be on this Committee.

MR. SOLES: I'm aware of that now, and I will not keep my mouth shut again.

[Laughter]

DR. RINGEN: I'd like offer, David, you know, anybody that asked to be on the group I took. I didn't say, I don't like you and you can't be on there; gee, you're looking, I only want good looking people. We took anybody.

MR. SOLES: That's fine.

[Laughter]

DR. RINGEN: Claudia.

MS. HARRIS: I just had one point about the date, and that is, it's not just the date of the release of this final document that we all have in front of us today. It's the document as it proceeded through the work group, which was meant to be kept internal, which was not kept internal through that process.

That also brings a larger point, and that is, it's very difficult to work with this committee in general, because the documents and the paper that come out of this committee are very difficult to obtain. Copies of the information which the Committee members have access to, are not always made available to the public.

Most of them are not made available to the public prior to the meetings. It's very difficult, as David said, to prepare to present a discussion when you have four hours notice that comments are going to be accepted.

You call this a open participatory process. It isn't. No matter how much some of us want to participate, the timing and the access to information, documents, precludes us from doing that in a responsible manner. Therefore, rather than participate half-heartedly or with false information, some of us elect not to participate, and that's unfortunate, because with timing and proper preparation, I think that all of us could work towards a common goal, and that is increase safety and health.

DR. RINGEN: I think that's an easy criticism to make --

MS. HARRIS: Sure.

DR. RINGEN: -- and I don't take it very easily.

Stu.

MR. BURKHAMMER: You know, Claudia, when we worked on the work group -- and you were as diligent and hard-working as anybody, and we really appreciate that -- I thought we were very fair and very honest in the work group of getting the material out to the work group people.

MS. HARRIS: Yes.

MR. BURKHAMMER: We tried to get it out in advance. Sometimes the people would bring stuff to the work group that we would look at or review that day.

But when you're doing -- and I know you can appreciate this because you wrote a section of this for us -- when you have five or six people branching out with parts of something of a whole and then you're trying to bring the whole back together, like on

July 7th, when we brought the hole back together, it's natural that you didn't see five or six sections, and I didn't see five or six sections until that day.

By not having the ability, because we all have other jobs, to have a work group meeting a week or a work group meeting every other week so we can flow the stuff and everybody is fully knowledgeable at all times, we had basically three work group meetings over a day and a half or two days.

We tried, as in those meetings, as best we could to cover all of the information we could. But you're right; it is difficult. Again, appreciate, we tried to do the best we can with what we had, and I know you did.

MS. HARRIS: My comments were not necessarily specific to this work group, and in fact as my first experience with a work group, I thought that it was fairly positive.

I think that the comments are related to this Committee, in general, and is exemplified by my experience with that work group.

Having access to documents and information is important to us, and we do not have it.

DR. RINGEN: Keep in mind that we don't do rulemaking.

VOICE: The documents are placed in the docket office, and they're available there.

MS. HARRIS: After the meeting. Correct.

The information by which this Committee works from today and tomorrow is not available to us within the industry, therefore, we cannot prepare to participate in this process.

VOICE: For this meeting in particular, I can tell you this material was put together yesterday, and it was on the table this morning.

MS. HARRIS: Right. Well, first of all, how can this Committee work on information that they got 10 minutes prior to the meeting. I mean, you can't even begin to skim the information and prepare for the meeting.

DR. RINGEN: I think this is outside of the bounds of what we're talking about. I don't disagree with you, but the Committee works over a series of meetings.

Now, let me just say this, there are an equal number of employer representatives and employee representatives on this Committee. It's not like on group is favored over the other, and the employer community is certainly represented here.

You may think it's represented inadequately, because every trade association in the country is not represented here.

MS. HARRIS: No, that's not true. However, there are two vacancies on the -- or one, at least now, for the employer, which has been vacant for the past two meetings that I know of, and possibly three.

DR. RINGEN: Same thing with an employee site.

MS. HARRIS: Well --

DR. RINGEN: They're equally balanced. Or unbalanced.

MS. HARRIS: Let's not get into this. The point is that the information on this document and the ergonomics proposal was not accessible to the industry, and therefore, its participation is not, probably, what it could be.

DR. RINGEN: But you now have the document, and you should make whatever detailed comments you have on it and send it to Stu in writing, and we welcome all the comments that we can get.

I know Stu, because he has to deal with it, but that would be very helpful. This isn't the final thing yet.

MS. HARRIS: How do you want us to comment on something which we don't necessarily believe is the starting point?

DR. RINGEN: Well, you start out with that, I believe.

MR. SMITH: I think that's what we're doing today.

DR. RINGEN: Yes.

MR. SMITH: I mean, we don't necessarily believe the OSHA document that you're basing this document on, is a starting point.

MS. HARRIS: We're starting 4 months later than all of you because of the access issue, so we are starting today.

DR. RINGEN: This has been going on for four months, and you've heard it reported on at these meetings.

MS. OSORIO: I just want to make a comment that we're only here for a day and a half, and I respect the fact that people have problems with the process and all that, but from my vantage point, I would like to get back to the topic at hand.

I think any other comments or suggestions, if I may say so, about the process, could be done in writing, or there may be a separate medium among people who need to, but I think for the people on this Advisory Committee, we'd like to hear, because we still have another panel, exactly what's --

DR. RINGEN: Two panels more.

MS. OSORIO: Oh, I'm sorry. What exactly are some of the problems, in general, if not with this document. And also, if I can emphasize, I'd like to hear maybe some suggestions and remedies that are proposed, too, and I would sort of like to get back to that topic, if that's okay.

DR. RINGEN: I think that's where we began and we didn't have time to digest it and offer any suggestions to this document.

MS. OSORIO: Right. But I think this is one of a series of meetings, and probably the next one we may have some more time to talk about it. Also, whatever you put in writing to Holly, we get too, and I think writing, in some instances, is actually better, I can sort of digest it better myself, personally.

So I don't think this is like a final stop, it's a whole continuum. I'm not saying the process can't be made better, but since you have all of us here, let's get back to the more meatier topics, if we can.

DR. RINGEN: And we welcome the fact that you are finding studies, and we will be glad to provide review of the proposals for those studies when you have them prepared.

So, thank you very much.

PANEL TWO

DR. RINGEN: Next panel, George Kennedy, Director of Safety, National Utility Contractors Association;

Charles Maresca, Manager of Federal Regulations for Associated Builders and Contractors, and,

Regina Solomon, National Association of Home Builders.

Do you have a preference for the order that we are going to go in?

MR. KENNEDY: I guess it doesn't matter to us. We're all going to get to say our price.

DR. RINGEN: We'll start with Mr. Kennedy.

MR. KENNEDY

MR. KENNEDY: The members of the National Utilities Contractors Association are opposed to the idea of an ergonomic standard. We think it's currently camouflaged by the name, Musculoskeletal Disorders and Construction.

NUCA members are concerned that this rule will hold employers responsible for all of the aches and pains of every worker. NUCA opposes the concept of an ergonomic standard, based on the fact that most construction companies, especially small- and medium-sized companies, would find it impossible to comply with this standard.

As proposed, the standard does not take into consideration that workers of different ages, naturally develop different aches, pains, and physical disorders.

Musculoskeletal disorders can be attributed to many cumulative factors, including but not limited to the activities of daily living, generic makeup, physical conditioning, diet, recreational activities, and aging, which are all beyond the control of the average employer, of any employer.

All of these factors and others contribute to the wear and tear on the body's muscles and joints. The fact that no valid, scientific evidence proves that work is the only factor that causes musculoskeletal disorders, is reason enough not to proceed with an MSD standard in construction.

Even the medical and scientific communities have not arrived at a consensus on ergonomics and MSD.

Therefore, we suggest that OSHA does not have enough scientific evidence to demonstrate the need for this type of standard for our industry. This standard, as proposed, would dramatically increase worker's compensation's costs initially, which will undoubtedly have to be passed onto the owner and the public.

Some workers will be filing claims for aches and pains that could be a result of their outside activities. We are not saying that they're necessarily fraudulent.

As an employer, wouldn't you be concerned if you hired somebody that was a bungee jumper or a rock climber?

If you think this is an exaggerated example, how about a golfer, or a tennis player, or a racquet ball player or a bicycle rider, a motorcycle rider, or any of the other activities that all these employees are involved in outside of their work, all of which affect their musculoskeletal disorders.

Try evaluating some of these activities, utilizing your risk factor checklist that's included in this proposed draft.

The time elements in the draft are speculative. They're chosen at random. We don't know where you got the 2 hours -- 2 to 4 hours, 4 to 6 hours, 6 to 8 hours.

We'd like to see the scientific evidence that shows that these particular time frames do, in fact, affect the worker.

Let's not forget that the contractors have to evaluate every job classification based on its Propose Rule. Not only will they have to evaluate a job classification but they will have to evaluate each and every job task performed by a worker.

If you took a simple job, whether it be a carpenter or a pipe layer, an electrician, and broke it down into the many, many tasks that each worker performed, you are talking about a small employer with probably no safety director or a part-time safety director -- and I'm talking about the small and medium sized companies; each of them are going to have to determine the pinch grip, based on two pounds, how are they going to measure that; how much vibration is too much.

There are many different positions involved in all of these different tasks, pushing and pulling forces, number of repetitive motions per minute; time performing each motion, and many other factors.

The one thing that may offset the evaluation is the time factors. Again, we questioned those.

We remind the Committee that the medical and scientific community does not agree on the causes of

MSD -- musculoskeletal disorders -- and unless OSHA can show that the risk factors have been scientifically derived, we suggest that they are skewed.

The record keeping requirements proposed will result in considerable increase and useless paperwork. The paperwork requirements included in this standard are going to serve to make HAZMAT communication look like a dream come true.

The cost to employers for sending employees to health care providers will be enormous. Keep in mind that these medical evaluations are not covered by insurance, and will have to be passed onto the general public.

Nobody has actually estimated what the average medical review cost is. At least we haven't seen any figures on this from this committee.

The extent of the review and the test will be left up to the health care provider; therefore, the costs will vary considerably.

In addition, how could employers ensure that medical assessments can be provided within five days? Sometimes it takes a week just to get a doctor's appointment. And good luck trying to get a physician to come to your jobsite to evaluate the conditions.

Even health care providers disagree on the issue related to musculoskeletal disorders, and many physicians have absolutely no training in the treatment and evaluation of MSD.

We contend that there are not enough well-trained, qualified physicians to handle the reviews, especially in Rural America. Sending someone to a seminar will not qualify them to identify, evaluate, and control the so-called hazards.

You have Ana Marie; she's qualified in this area, but it's hard to find people like her. There's not enough of them around these days.

Most contractors will have to hire an ergonomist or somebody like Ana to perform the evaluation task and to recommend controls. It's not going to be an easy task for them to do. Again, we don't believe there are enough people around that are qualified to do this.

Even the ergonomics community and their certified ergonomists don't have enough people, and they're not opening their doors very much to most of us in the profession.

Safety professionals, like myself, can't even get in unless you have a master's degree. They can't even qualify, no matter how many years. It's a lot of work.

On behalf of suppliers and the manufacturing members, I would like to point out the liability that this standard will create for them. Apparently, there has been no consideration or evaluation in reference to repackaging and redesign of packaging and equipment. We can't make 2 x 4s shorter and still put up an 8-foot wall.

Yes, we could so something about sheetrock and things like that. Manufacturers are already addressing these issues. Tool manufacturers are already addressing the issues of egoistically designed tools. Why do we need a standard to do this?

I would like to remind the Committee, that we have, like the rest of my colleagues, have had very little time to thoroughly review this proposal, and we don't like that idea; we need to have time to take it to our members. I haven't had a chance to discuss it with any of them because I just got my hands on it.

Although I have addressed some of the problems that exist in this draft, I repeat that NUCA members are adamantly opposed to an ergonomic standard no matter how you camouflage it or what you call it.

Just following up to that last statement, to remind you that ergonomics is a science of adopting work or working conditions to the worker. Musculoskeletal disorders are a part of the ergonomic issue.

No matter what you call this standard, it's an ergonomic standard. That's the way we feel, and I thank that the Committee for allowing me to talk.

Any questions?

DR. RINGEN: Thank you. Any questions, comments?

MR. SMITH: I've just got a couple, George.

MR. KENNEDY: Go for it.

MR. SMITH: First thing, you scared me with that list because everything you mentioned I do -- bungee jumping, riding a motorcycle, and golfing and bowling.

[Laughter]

MR. KENNEDY: You're an MSD nightmare.

MR. SMITH: That's what it sounds like. That's what it sounds like. I guess the reverse is just go to work and go home and go to bed, because evidently they're all good social issues that we all enjoy doing.

MR. KENNEDY: Right. Simple aerobics.

MR. SMITH: The second part is, if you look at the scope -- maybe you didn't have time, but if you look at the scope -- if it's outside the scope of what this regulation would entail, then it means that you're not in the regulation at all.

MR. KENNEDY: Well, I don't want to read the entire scope but myself and several of my colleagues --

MR. SMITH: There's only A, B, C, and D in the scope.

MR. KENNEDY: Yes, and if you read them, almost every job is applied.

MR. SMITH: so performance of the same motion every few seconds, if you're not doing that, then you're outside of that.

MR. KENNEDY: Yes, but keep in mind that it's A, B, C, or D. It's any of these risk factors. It doesn't say it includes all of these risk factors.

MR. SMITH: Right. Just like you said --

MR. KENNEDY: So if the guy isn't doing it every 10 seconds, he's lifting something now and then, regularly, routinely. He's bending and lifting things from below the knew.

MR. SMITH: Right. Use of vibrating tools, more than likely you're going to find that longer than 2 hours a day?

MR. KENNEDY: Most likely. Most industries and almost every worker.

MR. SMITH: So you're going to have to look at risk factor there, which is reasonable.

MR. KENNEDY: Right.

MR. SMITH: If the fact is you're not doing the same exact motion every few seconds, which are probably not in construction, but if you are, it's reasonable to assume that there are some risks that you should evaluate. Correct?

MR. KENNEDY: Yes.

MR. SMITH: A fixed, awkward work position, which is twisted or bent overhead. All of the are risk factors that you should look at, too.

MR. KENNEDY: Yes.

MR. SMITH: So what you're saying is, from what I hear you saying, if we look at the scope, you agree that any of them in the scope are risk factors, but yet nobody wants to address them?

MR. KENNEDY: No, I didn't say that. What I say is we don't think there's a need for this standard. These risk factors are possible risk factors that have not been proven; not thoroughly, not scientifically in all industry, and they haven't found a causal relationship between the difference between a worker who likes to bungee jump, bicycle ride, rock climb, and somebody like yourself, and the worker, and his specific tasks on the job.

These tasks also vary so much that how is a contractor, and especially the small- to medium-sized contractor, who does not have an ergonomics on staff, or an industrial nurse who is trained in those, how are they going to identify and evaluate each and every task.

My members are tight [inaudible]. They must have 50 different tasks that they perform.

MR. SMITH: What I'm saying is, I don't think you have to.

MR. KENNEDY: You have to.

MR. SMITH: Let's look at the electrician.

MR. KENNEDY: Fine.

MR. SMITH: He's doing a bunch of different tasks, but if he's pushing wire, he may not actually be doing all of these tasks at once, or he may not even fall into any of them, because he's not doing it for two hours.

MR. KENNEDY: But that may be today, what about tomorrow or the next day, where he does it 9 hours? Do I have to evaluate him?

MR. SMITH: But what I'm also saying is we know that there's fraud, because we know a guy who hurts himself -- every guy, no matter where he's at -- but individuals who hurt themselves at home on a weekend probably tries to drag themselves to work Monday.

MR. KENNEDY: It happens.

MR. SMITH: We know that happens.

MR. KENNEDY: We know it happens.

MR. SMITH: But we also know that there's a very, very big risk of working in construction on a job site, lifting a lot of weight and moving your body up and down stairways and ladders and everything else; with that weight on your body. We also know that for a fact.

What we're saying is we have to start somewhere to address that side of it too. And that's what this proposal is all about. It may not be perfect but it's bringing guys like yourself to the table, and that's what the process is.

We've got the far left which might be this standard, and we've got the far right who are not going to do anything. They don't want to change nothing they're doing in the workplace. But that brings us to the table where we're at today.

And I guess my response back to you is -- if the utility contractors are flat out against this document, that's okay. And like Steven said, "We're in the process of going forward."

But the utility contractors should definitely, if it's not you, somebody participate from this day forward as to where we're going to end up. Because we all know that there are definite risk factors out there in construction when it deals with material handling, flat out.

If it adds up being that the standard says that the manufacturers would cut them in half, then that's what it ends up being.

Because then it's level price for all you guys, which currently is not where it's at. When you say there's ergonomically designed products on the market, such as hammers that have less vibrating mechanisms because they're cushioned.

That's great. But when that hammer costs $800.00 and you go to purchase it, and the other hammer, the old hammer is $400.00, you're going to buy the old hammer, and you're going to forget about the risk factor to the individual.

Now, it's mandated that that was the standard from here on out, that all new purchases will be this ergonomically designed tool, then you're all back on a level playing field again when you go to buy a product.

MR. KENNEDY: Well, I don't agree with that, because the manufacturers are going to phase out a lot of those tools that are not ergonomically designed with time. It's going to take time.

We as a group shouldn't be making a standard to regulate an industry based on risk factors that we're not 100% sure of. We know there are some risks. Some of these risk factors can affect a worker.

But we need to evaluate the entire operations.

MR. SMITH: That's fine. But when we do then we've got to stop -- everybody has to stop and go forward with positive needs; not negative.

VOICE: I've got cranes in the marketplace right now that are still running that were built back in the forties. So, are you going to replace them all if they pass this standard.

VOICE: No, I'm saying they're not.

MR. KENNEDY: I would just like to say that say that -- I'd like to answer some of his questions; I'd like to respond if I may.

MR. SMITH: I thought you did, go ahead.

MR. KENNEDY: Well, a couple of things you mentioned -- you brought up this risk factor. You brought up what we were saying about the identification of the hazards.

You're saying we need to move forward, but we'd be better off moving with a guideline to help educate that industry, and educate employers, rather than to regulate them.

They need to be regulated, and I don't mean this as an insult to the industry. But many contractors can't even spell ergonomics, let alone know what it is.

Musculoskeletal disorders, try spelling it when you don't think about it.

DR. RINGEN: George, you're saying that what is being done here is not unreasonable it was formulated as guidelines, or as recommendations to the industry, as opposed to being --

MR. KENNEDY: I'm going to be careful on that. As a guideline or direction we're working with the industry. Because lots of guidelines turn out to become -- if used by OSHA utilizing the general duty clause, and I fear guidelines in some ways.

But we do need to go out and look more at the industry. Pete Chaney brought up some examples of the statistics that he looked at. He disagrees with them.

The committee apparently agrees -- thinks that those statistics are okay. We're obviously in disagreement. But we need to look at these things, and we need to go out to the industry and start educating the industry first, so that they can come back and comment.

We can't go to our members and tell them about ergonomics and what's going on unless we educate them, and we're working on that now. But it takes time.

But a regulation that's going to bury your contractor, or put a small contractor out of business isn't going to solve the problem.

DR. RINGEN: Let me just ask you, finally, that questions that I asked of others. "Who's educating the 80% of employers out there who don't belong to a trade association?"

MR. KENNEDY: Well, that's beyond our control, obviously. So, we can't answer that. But that's still something that has to -- but where's OSHA in that case?

DR. RINGEN: Well, I think that's why they asked us to --

MR. KENNEDY: And I don't mean regulation. Where's OSHA in training in that case? We're doing our part at the 20 percent; we're hitting them hard.

DR. RINGEN: And would OSHA's consultation services then regulate to reinforcement?

MS. SOLOMON: That isn't true.

MR. SMITH: What I'm saying is that not only 80% use them.

MS. SOLOMON: No. Not enough of them.

MR. SMITH: Not enough of what?

MS. SOLOMON: Consultants throughout the country.

MR. SMITH: I tell you, if you look at this though, just as a training mechanism; not as a regulation, as a mechanism to advise and make aware, and to start the process -- I mean, it can work that way too.

MR. KENNEDY: Well, you'd better start by eliminating all the medical requirements. We don't have the people to do it. And are there enough people around to really do all these evaluations. I mean, we're talking millions.

MS. OSORIO: Let me just take this -- talk about lead -- because I think there are some parallels. And that is that the lead standard -- well it was applied to construction and all this. And so what happened?

You know, there aren't enough people to know as much as your physician that went through residency training.

What we do in California -- besides OSHA there's health departments -- there are other people and stuff. And we actually talk people through, and these could be nurse practitioners under the distant supervision of a doc. There's also a lot of paramedical people that could help run some of these lead programs and stuff.

And again, I just want to emphasize that -- I think what was said by somebody here -- this is a step, it may be a baby step, or whatever. But what it's doing in my opinion, my opinion not the whole advisory, is:

(A) Pointing out that there is a problem; to what degree whether it's 50 percent, you know risk factors in the job, or whether it's 60 percent, these are preventable kinds of conditions.

And so, to every extent possible, we should educate both employers, employees and the medical community about what the right things are to do, and to have some referral centers that they can go to, with hopefully no cost or little cost to the small guy out there -- small woman out there. But I think that's just one step.

The second one is, you know, whether it's guideline, whether it's a standard, you know.

There's some problem out there, and so what is the best way to adapt it in the construction as opposed to the assembly line process?

And that's the kind of stuff we're trying to hear right now. But I don't think you have to have every single doc who does some of the things in the medical recommendation that has to be a specialist.

I think these things you can treat, and I think nurses can do a lot of this stuff too.

I'm just addressing now the medical component. You know, this isn't rocket science once you're kind of trained. And one thing we're doing with the lead -- because it's been around for a long time. It's guidelines are out there kind of kook bookie ways to look at it, from a medical perspective I'm talking about.

And perhaps, again this isn't my area, but with safety engineers and stuff, some sort of similar guidelines and, you know, general step-by-step assessment tools can be brought into play for other aspects, whether it's this exact standard or something that eventually evolves down the line.

So I think, again, it's not black or white. I think there's a middle ground where it's not so overwhelming.

But I totally agree with one thing that I think you said, and that is that is to me a standard guideline that doesn't have the resource in terms of distributing information and consultation of people that need it, doesn't have any merit. Because, you're just putting something into circulation without any meat to it.

And so, I totally agree with the aspect of training and beefing up better ways to get the information out there. And I would say that's for all problems in the construction industry that deal with health and safety, not just ergo or musculoskeletal.

MR. KENNEDY: Well, I agree. We need to educate before we regulate. And right now we don't have the education out there. People are not aware.

And OSHA could do a lot to educate the people in the field on how to control the problems. I mean, go out and start evaluating some of the jobs; come out to some of our job sites, without an enforcement hat on, and start evaluating some of our jobs and then passing that information around and sharing and helping people to understand what they're doing.

You come up with a regulation like this -- you're not going to have compliance. The small contractor just doesn't have the people and you can educate them and talk to them all you want, but what happens when the guy changes?

What if that safety director isn't a trained safety director, but he got the hat, what if he leaves? You know, the next guy has to be educated. And there are still not enough people like yourself who have this knowledge to help us -- in this industry yet.

And I think it's still too far away from any kind of a standard..

DR. RINGEN: Al?

MR. MEIER: Al Meier. I'd like to reinforce what Anna was saying. It isn't really rocket science.

The workers themselves can identify, and it's been proven if you show them and say, "Look for excessive lifting and repetitive motions, awkward positions, heavy lifts, extreme vibrations, cold temperature extremes." Those things are easily identified, most of them.

You'd think that the worker's comp premiums would educate you. You shouldn't need much prodding. To me this is a win, win. Ergonomics -- the worker has a better place to work and he stays healthy and the jobs are open to more people if you can eliminate the things that hurt people. And I think you'd want to do that.

If anything costs an employer as much as these ergonomic injuries, you'd have a committee on it and want it done yesterday. And for some reason when you try to rid of the unpleasantries in the job that cause injuries you balk and fight and buck in the harness. And to me, I'm going off the committee, so I have nothing to gain or lose by saying this. But you'd think you'd welcome it and encourage it and insist that we do something to bring these horrendous costs down for you.

It's a win, win. And most of this costs very little. It can be done administratively. There's an air hammer instead of somebody hammering and getting shoulder injuries. He's twice as productive as he is about it.

Most of those ergonomic changes, if you accommodate the workplace to the worker, make you a lot more productive. And to me, it's just a win, win for the employer.

And it's a win/win for the employee. And I can't understand this mounting resistance of this, and I don't understand Congress getting into this thing. It exposes at the urging of employers.

But if anything else costs an employer as much money as this kind of injury, he'd have a committee on it and he wouldn't rest until that cost was eliminated. And I think there's a difficulty in relating injuries to cost.

It's a burden to the employer to do these things. And it really is a cost effective thing that should save him money if he does it in a practical way and doesn't get caught up --

To me it reads kind of complex and I can understand that. But most of it is just common sense -- looking at a job and if you look at what's unpleasant in a job it usually relates to ergonomics. It makes that job more pleasant and more efficient. And I guess that's the end of my --

MR. KENNEDY: Yeah, but Al, the only thing that bothers me about that is, again, will regulation bring the cost down, or will education and training and knowledge bring it down.

And when we talk about butchers, if you're using that as a scenario, you're talking about workers in a controlled environment, where they go and they do the same job over and over again.

You're familiar -- you're obviously familiar -- with the construction industry or you wouldn't be sitting on this Committee. How many days did you ever do the same thing over and over and over again on your job?

MR. MEIER: That's why we have --

DR. RINGEN: Mr. Maresca?

CHARLES MARESCA

MR. MARESCA: My name is Charles Maresca. I represent the Associated Builders and Contractors. ABC is a national trade association representing over 18,000 shop construction related firms. We appreciate this opportunity to register our opposition to the Committee's proposal for a construction specific ergonomics program.

ABC and its members share a strong commitment to employee safety and health. As a national association ABC has a long history of developing programs to assist and enhance our member's efforts to provide their employees with a safe and healthful job site.

ABC members are encouraged to develop comprehensive safety and health programs which incorporate management commitment, employee involvement, safety and hazard communication training and regular tool box safety talks, as well as mechanisms for job safety analysis, hazard recognition and investigation.

In an earlier letter to this Committee, my predecessor Howe explained to the working group that ABC could not support this effort to develop an ergonomic standard.

In the letter dated April 21, 1995 addressed to Ms. Burkhammer she wrote,

"Despite the work groups effort to make the pre-proposal draft construction specific, ABC cannot support the final product of the ACCSH work group. The majority of the construction industry and ABC's membership are composed of small firms, employing fewer than ten people. Such an employer will be overwhelmed by the process required in the proposal. ABC shares OSHA's interest in reducing the potential for musculoskeletal injures and illnesses, however, this proposal would hold employers responsible for conditions that may not be occupational in nature. OSHA should instead work to educate the construction industry on risk factors and innovative work practices to reduce the potential for injury, rather than forcing this "one size fits all" solution on an industry with little or not experience with ergonomics."

We have pointed out that neither this Committee, nor OSHA, has demonstrated the data that would support such a comprehensive proposal. Nor has anyone shown that its implementation would be economically feasible for the construction industry.

If this proposal were to become the OSHA standard it would require construction contractors to remove safety and health professionals for more pressing priorities at construction work sites in order to focus on this one issue.

I share with my colleagues and the construction trade associations there concerns, not only for the substance of the proposal, but also for the process by which it has come about.

The release of the proposal, only last week, has left us no time to confer with our members, and little time to review the document in our offices.

We do not believe this Summer surprise to be consistent with OSHA's expressed desire for partnership with industry and commitment in the rule making process. In addition this proposal has gone forward over the expressed opposition of ABC and others, leaving the document far short of consensus.

ABC's senior vice-president, Charles Hawkins, once told this Committee that, "ACCSH can serve a valuable advisory role to OSHA so long as the Committee is composed of a broad base of individuals who are not only committed to improve safety and health, but understand the realities of the construction industry.

To be truly effective OSHA must forge a partnership with the employees and employers whose work sites it regulates."

Simply put, this proposal would be an obstruction to the partnership that we all seek. And let me say again, on behalf of ABC, thank you for this opportunity to present our views.

DR. RINGEN: Stu?

MR. BURKHAMMER: Charles, as you are aware, and I'm sure ABC is aware, Sue was an original member of the work group. She changed jobs?

MR. MARESCA: She has changed jobs.

MR. BURKHAMMER: Evidently, you replaced her.

MR. MARESCA: I replaced her.

MR. BURKHAMMER: But you never attended another meeting?

MR. MARESCA: I replaced her in June; she left ABC in April. She left behind a note, by the way, for her successor to look for communications from the Committee.

I worked to the bottom of my in-box, which by the time I had come on board, which was quite high. And I found no communications from the Committee, which kind of surprised me.

I have had no time to communicate myself to the Committee what was going on.

MR. BURKHAMMER: You referenced an April 21st letter from Suey to me which the Committee members all have a copy of in the book.

When she wrote the letter it was after the first meeting; I think the Committee incorporated a lot of her thoughts and comments that she made in the first meeting showing attendant one and then she changed.

I think the standard draft has come a long way since she made the original letter. We certainly thought, in the Committee, that someone would replace her.

The correspondence after April 21st, I think, the following correspondence will be sent out, and I think Suey got a copy of the -- she's left, but I think we sent her one at her new law firm. Maybe I'm incorrect, but I think we did.

Maybe we should have forwarded that to somebody without a name at ABC, but we didn't know who to send it to.

You do have a slot on the Committee; it's still vacant, you're still welcome to participate. ABC is a representative member of the work group. So, any future meetings that the work group has you'll be notified; the material will come to you. We'll send you all the back material if you didn't get it. And please come and participate.

MR: MARESCA: I appreciate that. I would like to say, though, that I have no way of commenting on whether changes that have been incorporated since April reflect the concerns that the April 21st letter shows.

I have no way of doing that. I just got the proposal last week. I don't know that ABC's position will change. We can't -- at this moment we can't support this proposal.

Whether they would -- whether ABC would consider it valuable use of our time to work on a committee working on a proposal that it cannot support -- I tend to doubt it. But I would certainly bring that back, and we'll talk about it.

MR. BURKHAMMER: I think that's an excellent point that you just made, and I'd like to make a comment about it and don't take it the wrong way.

But if you don't want to participate because you don't like the process, and you don't like the standard, how are we ever going to change it if you don't want to play?

MR. MARESCA: The easy answer would be to change the process. I think the -- our early letter really is the best statement of our position right now.

DR. RINGEN: How do we --

MR. MARCESA: Well, you'd have to not put this proposal forward. You'd have to start with data; you'd have to make the case. You'd have to show the data is and what risk it shows in the construction workplace, and work from that.

MR. JONES: Mr. Maresca, I think we really have to put this thing into perspective a little bit better.

This is a work group to an advisory committee to OSHA. They do not decide anything. They do not settle anything. They do not reach consensus; that is not their job. Their job is to gather material which they could obtain from you or from any other employer or employee representative.

And it is the most ambitious work group that we have had in my entire experience with this Committee. And to find fault with them, because they fell short of what some of you would feel should be adequate dissemination of data from the work group, I think really misses the point.

I think that there is a great deal of opportunity here, but you can get very much in the ground floor.

This work group report is not being presented to the Committee for a final vote at this time. It may not be presented for a final vote for some time.

Therefore, there very likely will be additional meetings, and additional opportunities for your organization, and for all interested parties, to make input.

So, I think, really there ends up being a lot of time wasted -- I'm talking about the process, when you really should be talking about the data and the procedures, which need to be brought forward to the work group which will then provide it to the Committee, which will then provide it to OSHA, and the full deliberative process will then be undertaken by the Agency in order to use that data so that the Agency, not the work group, not the Committee, will make the final determination whether there is a significant risk from ergonomic or musculoskeletal disorder type hazards that would merit the initiation of rule making and the promulgation of a standard after the rule making process has been completed.

DR. RINGEN: Thank you.

MR. MARESCA: It's hard to disagree with that. I think the first step is to look at the data. I'm not aware that we really have done that here.

MR. MEIER: Do you have data that conflicts with what we have?

MR. MARESCA: We have --

MR. MEIER: Because if you do we want it. I mean, why keep it a secret. We're looking at VOS and state data and it indicates there's a problem. If you do disagree, or have data to the contrary, well please give it to us.

I mean, don't just carp about it, bring it in. It's not even rule making. We're just making recommendations. We're a work group.

You act like it's standard setting, and it's not.

MR. MARESCA: It's part of standard setting. What this Committee says to OSHA carries a great deal of weight, and we are very concerned about this particular proposal. We think it is the cart before the horse.

The data that has been presented has not adequately -- does not at all support this kind of an organized proposal.

DR. RINGEN: I personally have reviewed a lot of the data that is here, and I think that the basis for what you're saying about the lack of data is unsubstantiated.

I would like to see you all substantiate where the lack of data -- or to demonstrate clearly to us that there is no problem, no significant problem, here.

Because, I think most people -- I shouldn't say they're necessarily neutral on this issue -- but who try to be objective about it, will find that they're a lot of problems that are documented fairly well and scientifically.

Finally, we're going to take Regina Solomon from the Home Builder's. And after she's finished, we're going to take a break before we do the last panel. Okay?

REGINA SOLOMON

MS. SOLOMON: For starters, I'd like to say that I'm not going to go into any real analysis, because I did not have an opportunity to review this substantially in order to make specific comments.

I would like to talk about small business, and it bothers me a great deal that the efforts and discussions about small business in the past have been stated as crap in the meeting earlier. Small business is not being addressed.

Earlier, the position of small business was a bunch of crap. It's in the record; you can go pull that back out. That's an enormous concern that -- shall I proceed?

DR. RINGEN: Yeah.

MS. SOLOMON: That's an enormous concern that we don't think that small business is being properly looked at in this issue. I don't think that small business can easily comply with any of the things that are being tossed about either by this organization or by the agency as a whole.

Al, you said earlier that all you have to do is look at your worker's comp rates and this is common sense. Well, I think we can say a lot of things about the Agency, but one surely is that most of the regulations are not born out of common sense understanding; they're very difficult.

We're looking at the (inaudible) right now trying to make it more common sense. Because, people do have an enormous difficulty. And I also disagree with that this isn't rocket science.

If you look at a small home builder who has maybe one or two employees, this is rocket science to them. And it's unfair to expect them to automatically be able to comply with this.

You say you're a physician -- they're not. Some of them don't have college educations. Some of them grew up in the industry. They know how to build a house; that's what they do. And they're required to do a myriad of other government regulations in addition to the requirements under the OSHA Act.

So, to try to say that this is just something that they can do, and it's common sense, and they can figure it out -- it's just one of hundreds and hundreds of things that they have to address.

And it's critical that this group recognize that this is one of many things; it's not the only thing. It's not just one little new thing they have to deal with and then tomorrow everything will be fine, because there will be another regulation tomorrow, whether it's OSHA or otherwise -- a local one that we'll never even know about because we're not involved with them in the day-to-day activities.

I think, as Charlie put it, we've got the cart before the horse. The Agency, as a whole, is under an enormous amount of stress and pressure specific with the ergonomics regulation industry wide, or across all industries.

I think it's premature, and inappropriate, for this language -- although you're not calling it a standard, it certainly looks like a standard. It reads like a standard.

I mean, if it walks like a duck and talks like a duck, and I think that's the concern of all the people up here. Because, you say this is information gathering. This does not look like information. It looks like a standard. And that's where you're getting so much resistance right now, and so much concern, because it looks like a standard.

And it looks like ACCSH is coming forward and saying, "We're supporting this standard." Stu's slide even said standard on it.

It didn't say information gathering technique.

It didn't say data or thoughts or stuff you want to know. It said standard on it.

So, you wonder why everyone's acting like it's a standard. Well, it looks like one. And I think it's important that everyone try to address that in terms of how we're getting this kind of negative responses. Small business will be crushed by a lot of the things being proposed here, and a lot of the information that's being floated about.

I have not had an opportunity to review this. I don't know the distinct differences between the draft that came out of the ergonomics team, which I have had some opportunity to review. But based on I saw therein and the brief review today, it still is very overwhelming for small business.

If the Agency needs to target a particular industry to break new ground, and ergonomic information dissemination, and helping industries, I don't think construction's the one to begin with.

I think they've done some major work, excuse me, in some other industries. And I think that's important.

One of the things that we were talking about earlier with some of the folks on the group was, when there was hearing on the Hill, the group that was up there that was doing the most clamoring about the debilitating injuries wasn't construction.

And there's probably a reason that the witnesses that were chosen, who were up there claiming that they were debilitated and couldn't button there shirts or whatever the case, they weren't construction people. They were from the meat packing industry.

And clearly, I think, a lot of people -- if you had to take a poll of all the people who didn't necessarily agree with the route you're taking in construction -- I think most of them would probably agree that if we were going to target an industry it's probably something along those lines.

I have meat packing guidelines, and it looks like it's starting to work. That's what everyone is claiming right now.

So, if that's the case, it's being born out of data and that kind of information. But that was a long term effort. And I think we've got the cart before the horse. I think it's premature right now. I think ACCSH is getting ahead of the Agency.

I think the Agency is under so much fire right now that -- right now this is inappropriate to be moving forward at this point.

That appropriations writer on fall protection -- there's one on ergonomics in there too kids. And the reason it's there is because this is so volatile.

California was supposed to mandated to do a rule and they said we don't have the data and they backed off. There's a reason everybody's backing off.

And maybe that should be considered by this group before anymore work gets done. There's a lot of issues out there that we all can agree on that need to be addressed.

So, maybe we should refocus our energies.

DR. RINGEN: You rightfully took exception with the derogatory terms that somebody referred to your industry; then in return I'd like you not to call us kids.

MS. SOLOMON: Fair enough.

DR. RINGEN: Let me make one point, or a couple of points. The small home builders have mentioned the guy who did our house.

He was a small home builder; he had no trouble getting a structural engineer in there when that was needed; no trouble going to the D.C. government, which Lord knows is not easy to deal with.

MS. SOLOMON: I guess I never really quite understood the parallels of that. Have you given him this to see if he understands it?

DR. RINGEN: No, I have not.

MS. SOLOMON: Because I mean -- I would really want to be -- you know, without any assistance from anyone involved just give it to him and say, "What could you do with this?"

DR. RINGEN: He probably has not had that much experience with this.

MS. SOLOMON: That's probably because it's representative of the industry as a whole.

DR. RINGEN: But we also have a carpet layer in our house.

A man who was 50 years old, and had been operated on his knee three times so far in his career, because of the use of the knee kicker. That's also wrong. That's an obvious, what you would call, musculoskeletal work related problem.

Would you agree with that?

MS. SOLOMON: I don't know his case history to be able to say if it was caused by his job.

DR. RINGEN: Do you believe that knee kickers cause knee injury among carpet layers?

MS. SOLOMON: I would have to look -- I think each case should be evaluated

DR. RINGEN: In general?

MS. SOLOMON: I don't know. I certainly would not claim to have that kind of knowledge. You're not going to get me to say --

MR. SMITH: Common sense -- You want common sense out of OSHA, but we can't get it out of you.

MS. SOLOMON: I'm not claiming to be an expert on it.

MR. SMITH: I'm not either -- but if I banged my knee against that wall a few hundred times eventually something's going to give in my knee.

MR. KENNEDY: Did you raise the price of the bid so you could go buy an electric kicker? Would you raise the price of your house because you had to comply with your standard?

MR. SMITH: That's my argument. If it's a standard for everybody across the board for a level playing field it may raise the cost of construction.

But in the sense of a small employer, let me give you a good example of a personal situation.

If Stu Burkhammer from Bechtel and his company, as big as they and they have multitudes of money everybody thinks, and has multitudes of programs, and they put a laborer in trench that's eight feet and they bury him alive, is that wrong? Yeah, it's wrong.

By the same token that little, small employer only has six people working for him, that's putting in a sewer line at the town house that digs eight feet down and doesn't do it the correct way, because it's a little more expensive to do it that way, and will take a little more time to do it, and he thinks he can get away with just putting a 19 year old kid in that trench to make that connection and buries him alive.

Is that wrong? And should he be exempt because he's a small employer? No.

That happened to a friend of mine, it was a 19 year old kid that was only there for Summertime work. And he went in that trench because his employer said to do so.

He didn't slope it, he didn't shore it, he didn't do anything that he was supposed to do because he made an economic decision -- I can get it done in a day, or it will take me a day and a half or two days to do it.

I agree it's in the standard.

MR. KENNEDY: Right there is a direct causal relationship, and like I pointed out in my statement, you can't at this point -- they cannot show me the difference between what's affecting the worker, as a worker, as compared to his outside activities, his aging process, his body makeup, his generic history, his physical condition, his diet, his exercise lever, et cetera, et cetera.

There's 20 other factors. The guy in the trench, yeah, that's going to bury him. Boom, it's done.

MR. SMITH: George, I agree with you. We're not going to be able to ever correlate what they do socially with what they do in the workplace. Never, ever will we be able to do that.

But I also disagree with you that a guy who carries sheet rock up and down steps every day of his life is not going to injure his body more than a guy who sits behind a desk, in that factor. There's no way you can compare the two.

MR. KENNEDY: You can get musculoskeletal disorders from sitting behind a desk --

MR. SMITH: I agree with you, but I'm just telling you ahead of time. And I hate to go on with this debate.

Because, it just upsets me to think that you think that there's not a risk out there that we can identify and work towards fixing. And this is an avenue to start with.

MR. KENNEDY: I don't say that. I say we can't distinguish the risk.

MR. SMITH: And we never will.

MR. KENNEDY: What you're saying is by preparing a standard -- if a standard like this goes through you're saying that every employer is going to be responsible for every ache and pain that every worker has.

MR. SMITH: And they almost are now.

MR. KENNEDY: And we could all go into out employers tomorrow and say I have a musculoskeletal disorder because I've been sitting in this darn chair at the desk for six months straight.

MR. SMITH: But I'm saying, they almost are now because me and Jack said the same thing. When you testified that I leaned over him and I said, "That's the way it is right now, today."

Almost every back injury that an individual has either came from work, or if it was caused at home they may have made it into work and then during that work week they hurt it at work. And I mean, you know that as well as I do.

MS. SOLOMON: That doesn't make it right.

MR. SMITH: It doesn't make it right, but you're not going to be able to change it. You're never going to be able to change it Regina.

MS. SOLOMON: But I don't think we should regulate it just because we can't change it.

MR. SMITH: Don't regulate it, educate.

DR. RINGEN: Let's see, Ana Maria.

MS. OSORIO: Just really quick.

First of all, I think my rocket scientist -- it was taken out of context. I was replying to Mr. Kennedy? Yeah. Your remark about what happens that you don't have enough docs out there and I'm saying that --

MS. SOLOMON: Actually I think it was Al's rocket scientist.

MS. OSARIO: I just want to clarify that. I can't speak for the safety part. But for the medical community out there -- if this isn't rocket science to implicate what's in the medical portion of the current proposed guidance document.

But secondly, when the carpet kickers stuff came out -- that's about as black and white as you can get. So, I think the hesitancy in admitting that there is an association there kind of leaves me baffled. But I'll leave that aside.

MS. SOLOMON: I don't represent carpet layers. I mean certainly we have some as members, but that's not where my expertise lies. So, it's unfair to put me in a position to make a statement when my expertise isn't there.

MS. OSORIO: My third point is that, you know, I do think that some things were said about small business, and I guess it flew by me and stuff. But I also would push for a vote of civility, both on our part and on the part of the people presenting.

Because, I think to speak in a condescending manner to all of us doesn't really push forth a really good discussion of give and take. So, I would just like interject that as a note of civility that we should keep in mind.

The second thing, though, there's a lot of stuff that happens in the workplace. Take it away from musculoskeletal.

It could have a non-workplace component, and that's where you need to work with the health and safety specialists, with the medical people, and all this.

And you know, that's the art of doing occupational health and safety. And so, it's not going to be black and white. Unless you're talking lab rats, you're not going to control every single factor out there.

However, just because it's hard to do doesn't mean we have to try to finesse a way to deal with it. What the best way -- whether this document is not going to get, you know, transposed, or fiddled with and stuff -- I'm not saying it's not going to.

But I think to say there's too many factors, you can't control it; let's not do anything. I don't think that serves anybody's purpose, both employer or employee.

So, again, I would urge what Stu and some other people have said -- for those of you out there that have strong viewpoints and stuff -- I think this is an inclusive and not an exclusive work, data gathering, whatever you want to call the process going on here.

And that instead of saying, "No, I don't like -- I'm not going to participate." Come in, come to these meetings and you'll participate. And let's try to get some kind of middle of the road approaches.

Because, I don't think we can close our eyes to it. I mean it was just my opinion.

MR. BURKHAMMER: A lot of you spent a lot of time, even the previous panel, talking about training. And we discussed at length training in the work group, and I encourage all of you to take a look at the training section; take a look at the attachment "D" on training.

I think, George, your comment is very well taken and I made quite a bit of notes on your comments.

But the training is extremely important. And Regina goes around and spends most of her life training and is on the road all the time training people.

I think I'd appreciate both Regina and George's comments on the training section, because I think they have a lot to -- and I'd like to hear from you.

DR. RINGEN: Any other comments. All right, let's take a well deserved break for everyone.

[Recess.]

DR. RINGEN: The final panel today consists of Anita Drummond, Director of Government Relations to the American Subcontractor's Association; Ellen Larson, Director of Government Relations to the Air Conditioning Contractors of America; Marc Freedman -- I don't know your title Marc?

MR. FREEDMAN: It's Director of Government Affairs of the Painting and Decorating --

DR. RINGEN: The Director of Government Affairs of the Painting and Decorating (inaudible).

MR. FREEDMAN: I would be Marc.

DR. RINGEN: You would be Marc. Okay. That's not rocket science, right?

MR. FREEDMAN: It's common sense. Let's see how much we've got.

MR. RINGEN: Ms. Drummond would you like to start?

MS. DRUMMOND: Yes. I'm Anita Drummond with the American Subcontractors Association. ASA is a trade association of approximately 6,000 specially trained contractors. They're engaged in all phases of construction.

In order to put my comments in context I will give you a little history of my entry into this discussion.

I regularly attend these meetings and try to extract as much information as possible to understand what perspective you're coming from and what your plans are.

I understand that at some point in the Spring there were stake holders meetings held by OSHA, not by this committee, on the ergonomic standards development.

We do not participate in that committee and were not invited. So, we expressed our concern along with the National Association of Plumbing, Heating, Cooling contractors to Joe Dear that we had not been invited, and that specialty trade contractors actually represented about 80% of the industries contractors who did the day to day work or construction; that being all the levels below a general contractor.

And I will say that Administrator Dear was very receptive to our request to participate.

However, when this committee continued to work, and you announced that there would be a working group developed -- and I believe that Mr. Burkhammer was under the same assumption -- we worried that the work group was challenged with submitting to the committee a recommendation.

And now, today, we hear that it's not necessarily a recommendation; it's more of an information collection. I think the semantics did cause some confusion in the objectives of the work group.

So, to that, I say Mr. Burkhammer's done a good job of trying to bring together the bodies to make a reasonable recommendation.

However, being one person from trade association, I could not participate in the work group, but chose instead to notify Judy Paul that I would participate in Safety and Health, because I was trying to put my resources where I could make the most impact.

However, I did want to participate in ergonomics in the sense of having a working knowledge of it, and be able to submit comments.

In requesting to review the ergonomics from the OSHA offices I was not allowed to do so because it is a private undertaking, or a closed process.

So, that leaves me with being very uncomfortable with what was actually in the document. I could not honestly give you substantive comments up to that point.

In May the specialty trade contractors met with Joe Dear, in late May, and we talked to him about our objections to making this a standard because we were not fully competent with the data that was presented; that there was a problem.

But more importantly if there is a problem, and we do see the statistics on sprains, strains and back injuries, what were the applications that would actually correct these problems. That is what one of our primary concerns is.

So, as a collective group -- there were approximately eight, nine, ten of us -- we were offered to Joe Dear to work with his office on some demonstration projects that would be purely voluntary, in order to identify ways to help the small contractor implement mechanisms to reduce injuries on the work site.

That being said we could not support the development of a full regulation until there was better information, and I do not believe that at this point we had been presented or allowed to review that information.

Claudia Harris of the National Association of Plumbing, Heating, Cooling Contractors did participate in the ergonomics, I'm sorry, the MSC work group as it was changed, and she was able to give some substantive review and comments on it.

But as she expressed earlier to this committee, that was difficult for her because we were not necessarily able to review it or, more importantly, circulate some of it to members that I respect and who are very committed -- members of my association who are very committed to safety and health.

I couldn't honestly say how it's going to be applied to a small contractor if I haven't been given the opportunity to let them review it.

So, that is the quandary I feel I'm presented with today.

The way I recall, at the last meeting, it was decided that this document would be made available to the public and for there to be a review of it, and at this meeting today we would be presenting you with our comments. However, that did not occur until last Friday.

At the last meeting it was decided that this document would be made available to the public and for there to be a review of it and at this meeting today we would be presenting you with our comments.

However, that did not occur until last Friday. And I know this is a procedure issue, but I feel like I cannot begin to give you valuable advice in regards to the details of the document.

However, there are some issues that have been discussed at the committee level that I can give you some of my responses to that surround the MSD documents.

One is the worker's comp issue, the question that seems like MSD would just naturally be acceptable because people want to reduce their worker's comp cost.

I can honestly say that is a common discussion among my members. We want to reduce our worker's comp.

But that gets to the issue of accountability of the employee.

You can train, you can warn, you can give paperwork, you can do analysis, but if the employee is not ultimately held accountable for their actions and they are the cause of their injury, the employer is put in a very awkward position.

I think that our members, in fact the American Subcontractors Association is evaluating how they can help contractors educate their employees on back strains and similar injuries.

But in the end the employees also are an equal contributor to their own safety and their injuries on the work site.

So, it's just an issue that just keeps coming up among the members of this committee about -- as long as the employers are doing their job the employees also have to be doing their job. And I think that should be an ultimate part of the formula when we discussed preventing MSD.

And finally as to the issue of the work group and how it proceeded, I think Stewart was doing the job he was put out -- was set out to do by this committee; taking a very difficult issue and trying to present some sort of recommendation.

However, I would charge that we would like to know under what regulations this committee is doing this work and not allowing the documents to be circulated.

It would just help us clarify and understand the procedures better so that we are better participants.

I myself have become, and Ana Maria can contest to this, a member of the Safety and Health Work Group. However, I feel very uncomfortable thinking that I could not go to my colleagues and ask them what they think of this.

Or, more importantly, my own membership, which would ultimately have to be subjected to any kind of draft that would ultimately become a standard.

I fully understand the standards process, and that this is just an advisory group. But we all know that, as has been said earlier, the recommendations of this committee are respected within the agencies and many sectors, and they are often the skeleton or the basis of future standards.

So, we are trying to participate in a fair and equal playing field, and we believe that this committee should help us understand under what regulations you are using in the work group process specifically. And that is the conclusion of my comments.

DR. RINGEN: Steve do you want to comment on what kind of regulations we operate under.

MR. JONES: Our regulations for the advisory committee are set out in CFR. And the only provisions that directly reflect work groups are the provisions that talk about us having experts, or other persons, who can be brought in to help; then to provide their expertise to the committee.

As a general matter the question of availability -- it's really more a fundamental question of the Agency trying to maintain some kind of control over its work product so that you don't have people who are attempting, however much in good faith, to try to nail down a moving target.

And that the Agency is in a deliberative situation where they're looking at a number of options, and if the work group, or the general public, knows every single aspect of every single option it can diffuse the attention and the energy of the participants.

So that, the designated officer, or whoever is dealing with the committee or the work groups, generally as a prudential matter will say that there have to be some limits on what is disclosed to the general public. Or, limits on what can be taken out of a meeting by the participants in that meeting, so that discretion and the flexibility of the Agency to use the product of the work group, or the committee, is maintained.

MS. DRUMMOND: I just want there to be a clarification between the activity of OSHA and that of the committee.

Although the committee often is presented with information that's in development by the administration, the work that is done by the committee is a separate activity which is an advisory public process. And so therefore, my questions is, is that work that's done in the committee -- it's not necessarily fall under the same obligations that a administrative -- standards development process would.

And I think that clarification needs to be made.

MR. JONES: There is a distinction, certainly, between a committee and then a work group of the committee, and then between either of those two, and then the Agency. I mean, that's very important.

In the FACA language it is clear that the designated federal officer acting for the Agency, which constitutes the advisory committee, maintains full authority as to the convening and the conduct of meetings by advisory groups or their work groups.

So, exercising that general FACA statutory authority, the Agency does involve itself in the function of those, and the administerial aspects certainly are controlled by the Agency in terms of approving either the convening of a work group meeting or the convening of a committee meeting, for that matter.

And if it is necessary then to disband that group -- if the subject matter has been addressed, or if the committee or the work group has gotten off course.

So we do continue to involve ourselves, but we do not, especially with the work group -- it is a pre-rule making activity that we're talking about.

We do not invest that work group with the authority of the Agency.

We do not invest the work group product with the prestige or the stamp of the Agency.

MS. DRUMMOND: In regards to the Federal Advisory Committee Act there are some stipulations that meeting notices must be made in the federal register as a committee and a subcommittee of that committee.

MR. JONES: Right.

MS. DRUMMOND: How do you make distinctions between a subcommittee and work group.

MR. JONES: Subcommittees reach consensus. Subcommittees are, in effect, little advisory committees.

Work groups, on the other hand, are information gathering, cumulative activities, and therefore are not subcommittee or committees which would necessitate the federal register notice requirement; the public notice requirement to which you refer.

MS. DRUMMOND: I appreciate that clarification. I would just say that in participating as an observer only in these committee meetings in the past, it's been unclear that the working groups objective was to simply collect information, rather than come to a consensus, or some sort of majority opinion on a recommendation.

And I think that clarification -- it better serves this committee now.

DR. RINGEN: Stu, do you want to comment?

MR. BURKHAMMER: First of all it's the first kind voice I've heard in seven presenters. I felt like chopped liver 'till she got up there. So, it's very kind of you.

MS. DRUMMOND: We're the --

MR. BURKHAMMER: We wanted to soften you guys up. I know we've got two to go; I'll probably be back to chopped liver.

Let me talk about the work group. The work group, as I said earlier, was chaired -- and you're right in your comment, by Joe Dear to come back with a recommendation on musculoskeletal disorders.

As chairman of the work group I had the authority to determine how that recommendation was going to be focused. So, it was my decision to take the draft standard that Barbara and her group had put together for a 1910 standard.

And take that as the basis for where we started. Usually work groups are put together to discuss a standard that's already been developed and they take that developed document and tear it apart like we did forklift trucks, and some other ones, and give it back to them.

Here we had a very, very, very, very rough draft to start with. So, we took that draft and used it as the basis for the work group discussion.

From that draft, we formulated what you saw today in the slide show and in the handouts to draft a proposed standard to take to the full ACCSH committee for their review.

All our work group does is put together information in whatever form they so chose, and I chose to put it together in a draft standard to make it easier for them to follow in a sequence, rather than just five or six inches of documents that went from here to fair thee well, and that's about what we started with.

So, when the committee got the package they could sequentially follow this thing and hopefully then that group, and only that group, which is this group sitting in front of you -- the current thirteen members, some of which aren't here today -- then make a recommendation to OSHA based on the work group's report.

All the work group is giving this committee is a report. I chose to make the report in the form of a draft standard.

DR. RINGEN: I think your point is well taken. But it only occurred to me today as a result of some discussion, most of our work proceedings are not terribly controversial.

Take as an example the forklift debate.

Some may be, and perhaps we should do a better job of asking the chairman of the working groups to make clear to everybody how the working group will operate at the beginning. That may be helpful so that it's clear.

But keep in mind again, this is a committee of volunteers.

We have a particular problem to look at. We turn to one person on this committee as a volunteer to try to develop information on that.

In this case, Stu was kind enough to say, "Okay, I'll take on the responsibility of chairing a work group to look at this problem and to pull it together."

And he asked other people on this committee to participate with him, and he asked other people, also, to join him in doing this. And so they sat down as a group of people working together and trying to create something meaningful in this area.

And that's all really what a work group is. We could be a little bit more careful in terms of each work group's specified how it intends to operate, and we'll do that in the future.

Okay, thank you. Ellen Larson?

MS. LARSON: Thank you, Mr. Chairman, members of the committee.

Ellen Larson, Director of Government Relations for the Air Conditioning Contractors of America.

I'm not a safety specialist and I don't have the benefit of our member's input on this draft since I just took a look at it myself a couple of days ago.

But I do want to kind of touch on some things that have been said today, and one of them, Regina pointed out a little earlier.

I think it's important to look at some of the reasons for some of the negative comments that you're hearing, and maybe this small anecdote will kind of highlight it a little bit.

We had a board meeting a couple of months ago at ACCA, and we discussed the issue of ergonomics. We do have a safety committee, and we're very dedicated to developing an effective safety program that includes the manual and safety handbook and posters and training programs.

So, the issue came up and it wasn't rejected out of hand because of the concepts. I don't think people are willing to say that MSD is not a problem.

I mean, I think there are concerns out there that a responsible employer wants to address.

Where the concerns came up was when it was talked about in the context of a standard. And I think we've been over this enough perhaps, and maybe it's just wording.

But I would suggest that if this is indeed the beginning of the process, let's look at it as an information gathering process.

Let's look to trade associations to utilize their members to get information and to survey companies, and start the process that way rather than assuming that this is something that has to be put in the form of a regulation, which, frankly, scares the heck out of our members and a lot of other companies, I would imagine.

We've go probably about 3,500 members that are engaged in the design, installation, repair and service of environmental systems in new construction, as well as service and replacement.

And you know, whether they're residential, commercial, industrial or a combination, the average member firm has about ten employees.

And as it was also pointed out earlier, it's not just this issue, but it's other's from OSHA. And it's other regulations from other agencies that our members have to comply with.

That's not the issue we're talking about here. I realize that it's something that has to be considered when we talk about improving safety. And we've gotten involved in a lot of discussions today about process and some very valid points.

But I think what we really should come back to is how are we going to improve safety? From my perspective in talking to our members it's not by issuing a regulation that is not clearly understood and cannot be clearly implemented.

And I would suggest that OSHA try to utilize not only the means that are out there through trade associations, but its resources and a more effective manner as far as consultation and training.

Education, I think as a broad term, rather than regulation and enforcement.

It's challenge enough for our small contractors to meet the requirements of OSHA regulations when they're clearly understood work site related issues.

ACCSH does not believe that the MSD draft standard is clear in showing work site relatedness. And these issues have been brought up earlier today.

Again, that's not to dispute statistics necessarily. In fact, as I said, we're interested in disseminating information to our members on ergonomics, gathering data, and hopefully presenting to this work group.

But we cannot support a regulation on MSD, and we certainly cannot, I think, buy the fact that we have to have enforcement of this right now. We need education before enforcement.

Again, I can't comment on the specifics. Hopefully, is this is the beginning of the process we'll have an opportunity to provide some specifics.

Thank you.

DR. RINGEN: Thank you. Comments or questions?

MR. MEIER: I've been around a long time and if OSHA proceeds with this recommendation like they have with other recommendations to this committee, it will be ten or twelve years before we have a standard.

This full protection thing was one of my first meetings. I think I've been on ten or twelve years. And you argue a standard out of this product here I don't believe. We're at least tightening up the standard to prevent falls.

So I -- this is very early in the standard setting thing. I mean, they haven't even started the standard adoption. And when standards are controversial they just don't happen. So, I mean, this panic on your part -- and I can't understand it, there's a lot of things in this world I don't understand -- but this is part of the educational process, and it's very easy.

And this is really where the public ought to start commenting on this. It wasn't back when the work group started.

I mean, the work group thing is made up of divergent representatives from different factions of our work group out there -- the working Americans. And it's supposed to have some balance and input from divergent kinds of sources.

So, I think, still getting hammered like

this -- I've never had a chairman of any committee that leaned over backwards trying to accommodate everybody, and everybody in this thing did a masterful job.

But I think, if you see where the original positions on these things were -- So, you weren't coming in after a fact at all. You're coming in before the rule making starts.

And it sounds like everybody that's testified today doesn't understand that yet.

MS. LARSON: No, I think we just prefer no rule making, period. Education instead.

MR. MEIER: Well, you can't ignore me. We were proceeding -- I mean there is a lot of information out there that indicates there's a lot of ergo problems. And I think the advisory committee not to address them would be malfeasance on our part.

I don't know where people talk about flawed data, the BLS and the Hilscha survey probably runs the largest and most scientific sampling. And they indicate there's a problem.

Now, I don't know where these other 494 that Scott or somebody drug up -- we assume there is a problem.

And anything an employer can do and be aware of this thing I think is good.

I think as a result of this there's people worrying about ergonomics, but it's just the thing's gone out of sight.

If you look at ergonomic injuries, and any kind of graphs I've seen, they're just like this. And they haven't started to level off yet.

But I think if this is part of an educational process, and it's cost more money than most employers understand, and I think it's a win, win if we can get something done or start this -- they just go out there and look for things that could cause repetitive motion or one time trauma kind of injuries. You can go a long way toward preventing it.

And I still maintain you don't have to be a brain surgeon to see things that would hurt people out there, if you understand the problem.

DR. RINGEN: Al, you joined the committee in 1985 -- 1984 -- and that was when the fall protection was proposed. And that was before appropriations --

MS. LARSON: If I could just follow-up on that very briefly. I think what you're saying -- you know I wouldn't dispute a lot of that.

I think what I'm suggesting is perhaps a total change in mind set of the agency, and that is why, maybe, it is not have a lot resonance; it's hard to hear that, or hard to do that.

But if, in fact, a lot of what's being said about reinventing government, more consultation over commanding control is, in fact, what will happen.

Then, I think we can go a long way -- OSHA could go a long way in using its resources to educate employers that trade associations can't reach.

So, we do have to do our part. I'm certainly not suggesting that there aren't any bad actors out there.

DR. RINGEN: Driver education is clearly very important; we all agree with that. But it's probably more effective as a result of having speed traps around also. You can't have one without the other.

MR. SMITH: If there weren't any bad

accidents --

MS. LARSON: And carrots can work as well as sticks sometimes too.

DR. RINGEN: And some of the things that OSHA has done, like the focused inspection program; which I think everybody here, in principle, endorses and thinks it's a great step forward -- is something that this committee that has also endorsed very strongly. These kinds of changes, I think, are very favorable.

Any other questions.

[No response.]

Thank you.

MARK FREEDMAN

Mark Freedman, Painting and Decorator Contractor Association.

MR. FREEMAN: Painting and Decorating Contractors of America. Thank you Mr. Chairman.

I have the unenviable position of being last in this long string of presenters. It's very tempting to just say what they said and let's all go home.

I think I would probably make more friends that way and sell my points a lot easier. I would be the best voice Stu heard all day.

However, I think I would be neglecting some of my responsibilities if I did that.

I would like to respond to some of the bigger picture thoughts that I have had. I would very much concur with everything we've heard from the other construction association representatives.

There has been a lot of discussion among ourselves about how to present our thoughts, and I think a lot of my thoughts have gone into what they have said. So, I would like you to consider that at the same time.

I'd like to return to some of the questions, Mr. Chairman, that you presented before the lunch break. No one seems to have picked up on this. I guess the last subject that I can pick up on it originally.

You asked us about whether we thought the question was the risk of musculoskeletal disorders was epidemic?

I would submit to you that perhaps what we're looking at is more of a questions of an endemic level; something that is a naturally occurring level; yet hasn't quite spiked.

We're looking at questions that are have occurred throughout the history of the industry. And I would suggest that there a chance or possibility that some of these are trending downward.

Stu mentioned that Bechtel supports the use of personal protective equipment, such as back braces and other braces.

Without question, and I think everyone would agree with this, there is a huge greater emphasis on safety in the industry. Certainly since the time the Act was passed, and even with a window of perhaps five year or more recently.

I know among my members, and PDCA I should say has about 3,000 members in the coating application, we believe we are the small of the small.

We range from the mom and pop pickup truck operation up to some larger corporations. But the average is certainly under ten employees; under a million dollars gross revenue.

The people who have the hardest problem adding another layer of compliance to their operation, and I'm going to get into that in a minute, but that's where we come from.

In any event, even at that level, we are seeing a very strong emphasis on safety. My members are coming to me seeking information.

Certainly within, as Bill said, the good actors, there's a very strong recognition of this.

And the worker's comp issue has affected us in a great way.

Every employer carrying worker's compensation, and not all employers do that, and that's a big problem in itself; but all employers carrying it have a problem with injuries and that's one of their concerns.

I'd like to discuss the role of Oregon for a minute. They are probably one of the leading states in the reform of worker's compensation.

And one of the things they did was to build in a comprehensive safety consultant operation. And my understanding is that that has been a tremendous success, and probably is a strong factor in the reduction of accident rates that they've experienced.

That's a great example; unfortunately that's not the national pattern, but it is something to look at, and that demonstrates how we can get a comprehensive approach that will reduce some of these things without some of the problems we're talking about in the regulations.

But the worker's comp issue also raises some troubling aspects, and that is the issue of work relatedness. We've heard of that earlier.

Whether an injury is covered by worker's comp is often a question of that particular state includes it as a work related injury, or defines it in a certain way that an employee gets coverage under it.

You know, that can run all over the spectrum. And without some clear indication of work relatedness, and I think this goes to the question of statistics, employers being held to a standard are up in the air as to when they have met a standard.

You know, we have to be able to know the nexus between the causal relationship. We have to be able to say we know that this caused the problem.

I'm not going to sit here and tell you that we don't believe there's a problem; that we don't believe there are injuries out there. I mean anybody could see that.

But I am going to tell you that we're not satisfied with this definition of work relatedness. We're not satisfied with the way the standard has evolved -- that the draft standard has evolved in the absence of some clearly defined structure.

I'd also like to comment on your personal anecdote of having your house remodeled, and hope that you used my members in that process, but I can't push that any further. Everybody wishes they used your members, so --

DR. RINGEN: I hope they were union --

MR. FREEDMAN: We have those members too. Actually your example raised an excellent point and illustrates on of our problems.

From the small contractor community it is not a question of whether we can't do something, but really whether the market is demanding it of us.

And what we need to consider when we compare my members and the other small contractors out there with the Bechtel operations, is not so much whether we have the desire or the interests or are capable of achieving something, but can we survive in the marketplace if we do it.

Bechtel's competitors are doing the same thing Bechtel is doing.

We have an even playing field there and they all know that they are implementing and complying at roughly an equivalent level.

My members, in contrast, or oftentimes going up against the unscrupulous operators who do not do this. And the difference between compliance and noncompliance may mean the difference in being competitive. It's the sad truth.

I mean, I don't sit here and tell you that I like that situation. My members don't like it. They believe in educated contractors if that's competition.

Any contractor who loses a job to a qualified contractor is not going to lose a lot of sleep over it. The ones they sweat over are the ones where they lose it to someone who isn't qualified and is cutting corners and errs in safety and other things.

So, when we talk about the small contract community that's where our concern comes from. And as the competitive instinct, and whether the market is driving it, this really fires us up.

We have talked about, or we have asked for constructive alternatives, and one of the things I've mentioned to OSHA in the past, and in fact I've mentioned to other agencies, but OSHA, I think, is perfectly ripe for this, is to see some strong push from the Agency to supporting the good actors and the good contractors.

And in that vein, I'm looking for some type of a mainstream media campaign. I mean, I would like to open up an issue of E & R and see an ad from OSHA that says, "Hire the good contractor."

I believe that the market forces here are the ones that are going to ultimately control who complies and who doesn't, and who does the right thing. We've seen it in the past, and will continue to see it.

If OSHA could invest some resources in moving the market along and developing recognition, I'm convinced that that's one of the best uses of their resources.

Let me shift gears a little bit to the question of the procedure and how much we've said about that. Basically, I think, our concern here is related to the idea that we see the procedure as our protection and as our safeguard. And the idea that the procedure should guarantee the content.

I'm not going to belabor a lot of the discussion we've had on what went wrong or how it went wrong, only to say that our feelings about not being included, or not having had adequate opportunity, caused us to worry about what is actually going to come out of this whole package.

And to that extent, I think Regina did an excellent job of explaining the fact that we believe that draft standard as it's been presented is likely to have a life of its own beyond merely being labeled the product of a work group.

We have seen this in the past on certain work group products, the lead standard was just mentioned, and I have a fairly extensive involvement with that standard.

That emerged as a product of a work group and pretty much continued on its way.

Once something is on paper it's very hard to disturb it. If I was an OSHA standard writer I would have a hard time ignoring an already drafted standard and saying, "Well, let's start from scratch; let's pretend this doesn't exist."

We know, it's just a fact of life, that once you start out with something it's very easy to mold that and use that as your basis.

Stu started out with the draft, ergo standard from the larger ergonomics effort. Many of us felt that that wasn't even a starting point, and we voiced those objections, and yet that still became a starting point.

We are, I think, genuinely concerned and legitimately concerned about how much emphasis this is going to be given as we go down the road. And that's where our concern is, where the process and procedure come in.

Our feeling is that while this still in advisory committee, and I think the question of its role of advisory has always been something of a matter of interpretation, our feeling is that if OSHA likes the product of an advisory committee they can run with it.

And conversely, if they don't like it, you know, then it's just the advisory committee. But Assistant Secretary Dear has said that ergonomics is a high priority for him.

And we believe that if he is presented with the product of a work group on ergonomics, or musculoskeletal disorders as it may be called, he is likely to say this is a good looking product; let's go with it.

At that point, we have lost an opportunity to really effect a change.

We have a couple more thoughts, or I have a couple more thoughts, and I will be brief.

Theoretically, if this were to survive and continue on as a product, the administration has talked about it in its reinventing OSHA; focusing on three principles.

They focus on common sense, a question of partnering with the regulated community, and relief for small business.

Ideally, if that were the case, then we would pack up and go home and say, "Well, this will fail on all three of those things, and we're not going to have to worry about it."

We believe that this document does raise some serious questions under each of those items. The common sense issue -- we would probably call in a question of task evaluation methodology, and some of the other things that are required.

As we've discussed, the partnering issue is, I think, a matter of interpretation, for various reasons. And certainly, from the small business perspective, we don't believe this gives us relief.

As we've discussed, it may be one piece, and it may be a good piece, but it's one piece on top of bigger pile, and that pile keeps getting bigger.

This does not give us relief; it may in fact increase our burden to a point where we can't comply.

Those are the big picture issues I've had, and obviously I'd be respond to any of those concerns that you have.

DR. RINGEN: Thank you, very much. Any comments? Stu?

MR. FREEDMAN: Did I put you to sleep there?

MR. SMITH: Mark, you just said a couple of things that I was talking to Ellen about too. And you said specifically that your good contractors are on a level playing field with the other contractors, either in your association or not; it doesn't matter.

And that's where the problem is in competing, because you're trying to do right, and by trying to do right you lose the bid.

MR. FREEDMAN: There's a strong chance of that.

MR. SMITH: And my question to you is how we fix that, and I know Ellen sometimes with a carrot versus a stick, well I was raised with a stick and I know how to fix it with a stick -- it was called a switch back then, but it was a stick.

But in that case, if you can't fix it with a stick currently, because we're not talking about this regulation in effect, we're talking about the ones that are currently out there.

If you can't fix it now, competition wise with the bad actors with a stick, how are we going to fix it with a carrot by being consultive for training, because they're not complying already with the stick.

And there is opportunity to get training and consultation is you really want to look for it.

MR. FREEDMAN: I wouldn't say there aren't opportunities. I would suggest that I think those opportunities are limited and not easily available to wide populations.

MR. SMITH: And even if they are, the bottom line is --

MR. FREEDMAN: We're going to sit here all day and debate carrot versus stick.

MR. SMITH: But the bottom line is there's not enough enforcement; we know it. The chances of getting caught are very slim.

When you get caught it's the cost of doing business, in most cases, because you've won enough to pay the price of the penalty. And that's the real world that we all live in.

It used to be that was the cost of doing business in construction -- it used to be.

MR. FREEDMAN: Well, clearly we've moved away from that, and I think that's evidence of the greater concern for safety.

MR. SMITH: Slowly we're moving away from it. But we're still having people dying in trenches, and Tony Brown will tell you -- well he's not here -- but, Tony will tell you as well as we will, "All trench fatalities are 99.9% preventable, buy yet clearly, every there is still a trench fatality out there." So, we're slowly moving away.

MR. FREEDMAN: And I'm not going to dispute what you said. I mean, you're right. There's a lot of things that could be done differently. Ellen mentioned a mind set at the Agency.

I believe that we have to get the Agency to a point where it's training resources are available to the industry at the touch of a phone call.

MR. SMITH: I agree with you.

MR. FREEDMAN: And I don't think we've got that now, and maybe it's a perception issue, but I think it's broader. I'll give you an example and it relates to our lead standard.

PCA had a very direct concern with the lead standard. Our members deal with lead based paint fairly extensively. And in determining how to comply with that, or how to assist our members, we went out and developed a manual of compliance procedures for the lead standard.

It would have been awfully nice to call OSHA and say, "You know, what do you think we should put in our manual." But that really wasn't an option. The Agency does not open itself up to that type of participation.

We'd like to get them to sign-off on our manual, but it's a very, very difficult process to get the Agency to say, "This is a good product."

That kind of barrier and mind set is an example of where the contractors are up against, you know, in the real world. And I think that's something that should be worked on. And I don't want to give up the enforcement to --

I'm not sitting here telling you that we don't need enforcement. We need enforcement. There are definitely causes for enforcement out there.

But at the same time, enforcement is clearly not the answer. I mean, you just told me that there are too many accidents and deaths out there, and I agree with you.

We can't sit here and say that by really increasing enforcement we're going to solve the problem, because the blunt truth is many contractors out there know that they're below OSHA's radar.

Enforcement will never catch them. You don't catch every speeder on the highway; you can't catch every violator in the field.

You know, we could give every single dollar they ever asked for and it would never, you know, we'd never clean up the problem.

MS. DRUMMOND: I have a question. In the trench incidents you guys also have to ask the question, "Was the employee properly trained?" And if so "Did the employee take action that was not in compliance with his employer?"

I know you hate that question --

MR. SMITH: You're not in the real world because that kid is 19 years old, he's directed by his supervisor to either get down there and get it, or go get your paycheck -- he's going to go down there for a bunch of reasons.

MS. DRUMMOND: You're right, there are those incidents. But I'm saying you also have to look at the other side; if the employer has gone to every extent to train and to test an employee in the proper procedures of safety.

I'll tell you my members -- that is what they want. We already have a work force shortage as it is. So, we work very hard to train and keep the employees we have.

I know these incidents occur, but they happen the other way also. And that has to be acknowledged.

MR. SMITH: I think it's a whole lot less the other way. I mean, I very rarely think that an employee who's trained, knowing the hazards of trench keeping, knowing them, and then often of his own decision goes in there and does what he knows is going to be wrong in an eight foot trench.

First off, he shouldn't even be around on the construction job, because he is a liability, not only to himself and his neighbors, but to the employer.

MS. DRUMMOND: Absolutely.

MR. SMITH: So, I don't think that happens as much. There might be a rare crazy out there that will go into an eight foot grave on his own when the employers already trained him and said, "Don't do it."

I agree with you, but that's a rare crazy out there. Most of the trench fatalities are because of pressure being applied to get the job done.

MS. DRUMMOND: I think that's something the committee actually has to have real statistics on.

MR. RHOTEN: I'd just like to suggest too on these trench type accidents that you have, it's the employers responsibility to go beyond training and he also controls the work site.

And he, in fact, can set the attitude in those shops. There's no reason -- he controls the site. So, to blame the employee and the shop when the contractor is in control is not nice.

MR. FREEDMAN: This is a historic issue. We can go around it all day.

DR. RINGEN: I think Stu -- Ana Maria first and then we'll

MS. OSORIO: I just have a couple of comments. One is about the lead issue. I think you have, sir, reached consensus that education and training is real important.

I think any problem in the workplace, be it lead, ergonomic problems, solvent exposure, whatever. It's really a multifactorial approach.

I think there's definitely room for compliance. I think there's room for actively going out and making accessible to both workers and company reps what the information is out there.

I just want to say that there are two instances that I think some of that's been done pretty. With radiator repair workers and lead -- we're the state health department so I'm not a compliance person.

But we worked with Cal OSHA and with

employers -- and small. I mean most radiator repairs are like two or three people if you're lucky. And we actually put together a training manual and we've given documents and information on what kind of contract you need to have if you're docs.

You know what to do and it's kind of like bookkeeping, you know step-by-step. We're now working on doing the same thing for lead and painters.

It's a manual. What we do -- and, I'm just saying these are two little examples. But I'm just saying that I think there's room for that. And just pursuing that educational training aspect and making it accessible to the small business.

My concern really is the small business because that's when I get the horrendous medical cases that come to my attention.

So, I think there's room for that. But there's still room to look at other aspects of the solution to this problem, and I don't think one necessarily has to be done and totally forget the other half of the equation.

MR. FREEDMAN: I don't believe I said we would forget the other half of the equation. I just expressed concerns about how got to that other half of the equation.

I would like to comment on the -- I happen to know some of the people in California working on the lead rule and that's a great example.

But I think you would probably admit that's an exception and you plan state so you have certain resources or attention that the federals can't apply. So, I would like to see that be the norm.

We would be in great shape if every safety agency with enforcement responsibilities also would develop a compliance procedure like you described.

MS. OSORIO: But there's two things; one is the compliance. Everything I said that I did it was not in a compliance world. It was totally volunteered. We go around to contractors groups, we go around to union groups, we go around to whoever will listen.

MR. FREEDMAN: Excuse me for --

MS. OSORIO: I'm just making this point that I think there are compliance avenues that are out there, and I think there are noncompliance avenues too.

MR. FREEDMAN: Let me make the point. You just said the critical work, "We went around".

We, being the state, being the government, being the agency, went around to the various groups. That hasn't happened in my experience at level on that issue at the federal level. And probably hasn't happened in, I would venture to say, most of the states.

So, I mean, that's an exception and I'd love to see that as a norm. If you could clone that activity I'd be very happy.

DR. RINGEN: Stu, you turn; now you can get even.

MR. BURKHAMMER: No, no. First of all I really appreciate all the comments. I guess there's two things I'll address, and I think all of you at one time or another in your comments made reference to the starting point or the beginning or the process.

So, let's take a minute and talk about the starting point. I think the starting point can be equated to the old chicken and egg syndrome, "What comes first the chicken or the egg?" What comes first in a document is discussion or a sheet of paper.

There are 36 or 37 people left in this room. You've got 36 or 37 probably different ideas on what a starting point is and where a starting point is. But you've got to start somewhere.

So, the work group chose to start with a sheet of paper to have some discussion from. Today was a good start in the discussion.

If we didn't have a document you all probably wouldn't be here to discuss it because there wouldn't be anything to discuss.

The process issue of how we got to where we are is probably a lot of your concerns. It's my fault because made a decision, and Claudia can certainly support this, that I would let the committee talk to reporters or pass out documents. Because, all you would have gotten was a bunch of mumbo jumbo.

You'd have gotten a sheet here, five sheets here, a packet here, a couple forms here. You'd have been lost. You'd have been left in a disaster.

And you'd all have been running around going -- and we'd be nowhere, absolutely nowhere.

MR. FREEDMAN: So we come in here --

MR. BURKHAMMER: And the work group -- so, I made a decision and there are members of the work group that absolutely, totally disagreed with me. But however, gets to make some decisions. And I made a decision we're not going to piecemeal this thing.

So, at the last meeting -- let me go back a minute. The work group's job is to prepare information for the committee; not the public. So, at the last meeting I made a presentation -- we had lots of handouts for the people that came. A sideshow, kind of like the one we had today, to show kind of where we and what our progress was.

And the committee each got a book that you see Bill has there -- information from the work group to the committee. The work group is an arm of the committee.

The work group works at the whim of the chairman and the committee. We draft stuff for the committee.

The committee makes the decisions; not the work group and not me as the work group chairman.

The work group continued to work; we had two meetings from the last meeting.

One was the July 7th meeting where it's all the dates on the documents. Again, at the July 7th meeting I started to talk about discussions and disseminations, and it came out there at the July 7th meeting that we had a problem, that some people had it and some didn't.

And we had a great discussion and Claudia was right to the point defending everyone of you people in this room -- that's not fair; we got the shaft. But we've addressed that issue, maybe not the right way, but we addressed the issue.

And I think Knut put it to bed today when he personally apologized to everybody for the way it was handled; I do too. But it's handled -- it's past. We can't go back and generate July 7th and pass out all the papers again.

So, we came here today with lots of copies, lots of handouts for everybody and I hope you all got one. If you didn't see Holly and I think she'll see that you do get one.

Again, we provided information to the committee, we sent a second set of documents out to the committee, the slide show today was for the purpose of providing information to the committee and you all participated and saw that.

Now the work group has a decision to make. What do we do next? Do I just bag it and head for the house, which I've never done in my life and I'm probably not going to do now.

Or do we forge on and keep going and improve what we've.

Or do we just let the whole committee vote and let the chips fall where they may.

I don't think that first one or the last one are the right way to go. I think the middle one is the right way to go, where we keep on working, we keep on forging ahead, we keep on collecting material, and we come up with the best we can come up with.

But you all are a big part of this process because a lot of you have sat here today and said, "We disagree with this because." I want to see the because. I want to see you've got; come show it to me, come talk to me.

If you don't come and see me, and you don't have anything, and you don't come and talk to me, how am I going to change it. How is the committee going to have any information? We're not.

So, we come to the next ACCSH meeting in October and here comes Stu with another slide show, and we go around the rosy again.

So, please between now -- we're going to have a work group meeting which I will schedule sometime between now and the first of October. My schedule is a disaster, but we'll see what we can do. I'll open it up and if any of you want to come and bring something, you know, I'll you all know. Claudia and I will make sure everybody knows when it is.

So, if you've got something to bring, come. If you don't have anything, don't come.

MR. FREEDMAN: Can I just comment briefly on the question of participation. I appreciate your thoughts that this was open to anybody who could come.

At the specific advisory committee meeting where the task force was formed I wasn't able to be there.

I've been tracking this committee for some years, and I would have been there if I could.

So, I didn't have the opportunity to participate in it. It wasn't like there was a notice in the Federal Register that said, "OSHAS's forming a task force on musculoskeletal disorders, anybody that wants to sign up should sign up." But it was a question of being at that meeting and being available.

So, there was some restricted access. I'm not going to say you kept anybody off. But it was a question of circumstances. I think at this point for us to participate would be very good.

I'd like to come in and talk to you about the problems that we see. And maybe hold off any consideration by the committee until the next meeting, instead of presenting this to the committee tomorrow and having them go up or down on it. But hold it back -- we now could have a few months to chew on it, and then, you know, theoretically get back to you and give you some of our thoughts. That's me speaking.

DR. RINGEN: We were joking about that. This probably would be a pretty good time to take a vote, but --

MR. FREEDMAN: Then we're really going to have a procedure open for discussion.

DR. RINGEN: What I think Stu said is meant sincerely. This is -- based on the charge that we got the request that we got -- this is the best that this group has been able to come with, and I think they've done a hell of a job.

I don't think any of the people who have been critical of this process has necessarily taken into account, or expressed sufficient appreciation for the personal effort that the people who have worked here on behalf of the industry. And this is on behalf of the industry.

Whether you like the representatives who are on the committee, from the industry, and from employers, and from the employee side, and from the public and so on. This is the committee of the industry that OSHA has established.

This committee of the industry, through its volunteers, has put in an enormous effort at one issue that OSHA asked us to look at.

I think that recognition should be here amongst all of us, regardless of whether its outcome or not.

I have heard today during the break when I asked one person who was critical of our procedure to please give in detail comments on the draft now that you have it before you.

And if you don't have it, again we will make it available to you. But give your detailed comments.

If you won't go out and test it with your members do whatever you want. But get back to us with some specific information.

And I heard one member say, "Perhaps we don't want to do this because we're not sure we want to legitimize the proceedings of this committee in this respect."

That I think is very unhelpful, after the barrage of concern that was expressed about our failure to involve people earlier.

MR. FREEDMAN: May I comment very briefly? I would agree with you in your description of this committee being considered representative of the industry, and that in fact is what triggered a lot of our concerns.

Is that, as a cross section of industry as being viewed as the cross section of industry, it will be given greater credibility, or greater incredibility as it moves along.

And to the extent that the current work product does not reflect some of our thoughts and concerns; as I indicated that can survive and develop momentum on its own, and we may be at a point down the road where we don't have a chance to effect it.

So, I agree with you. The work group will be seen as a cross product of the industry. And please, we know took a lot of effort because we know that we have to do that ourselves sometimes. So, it's not a question of we don't think you did enough work.

It's just a question of whether we like what you did.

DR. RINGEN: We also heard from some that the cause of time constraints -- it's not always possible to participate in all of our activities. But I can assure you that none of the members of this committee has exactly a light work schedule on their own, and they take time out from that to do the work here.

This is mostly weekend work that ends up being for the people who are here because we all have full-time jobs and responsibilities elsewhere.

MR. FREEDMAN: What's a weekend?

DR. RINGEN: It's a time we should be out playing golf. So, those efforts that are here are legitimate. And we want to make something good, and we're going to make something good out of this -- whatever it ends up being.

And for those who say that there is no problem in this area, that the data to indicate that there is no problem here, please come back to us with information to the contrary.

I don't know how you do that with all the information that we have available at least suggests to me that there is a pretty substantial problem. And there may be better ways of defining that problem, I'll grant you that. But then give us that definition; we would like that.

So, what we want back is constructive feedback; not just a criticism of what has been done, because this isn't the final step, and what we get back, I'm sure, will be taken into account by the work group and in the end by the committee.

Otherwise we're not going to have an end product that's going to work anyway. So, we have to come up with something useful here, and we would welcome your response and Stu will schedule the next meetings of the work group, I'm sure, and we will take it from there.

I think in one way this whole process, so far, has been very useful to this extent when you talk about education, and education being important to the industry, we certainly have been able to stimulate some dialogue, and that is a form of education, and some thinking about this problem out there.

And if you take this document that exists now, and take it with you back to your members, back to your workplaces and say, "How does this make, or does this make sense at all? Or is there something here that does make sense, and is there something here that absolutely does not make sense?"

We might get a hell of a lot more education out of that again than we have now.

So, whatever you can do to help us we would welcome it. But if we don't get help, if we don't get constructive help, then it's very little that we can achieve on our own.

MR. BURKHAMMER: In order for me to schedule the next work group meeting, those of you that are wishing to send me something please have it to me by September 15th; then we'll schedule a work group meeting between -- because the next ACCSH meeting is tentatively scheduled for October 24th.

So, I'd like to have a work group meeting some time at the end of September. So, if you can get me that information, mail it to my address -- my address is on the handout there. I'll (inaudible) all the information and have it for the work group meeting at the end of September.

MR. FREEDMAN: End of September?

MR. BURKHAMMER: September 15th.

DR. RINGEN: September 15th for comments. The work group meeting will probably be a couple of weeks after that. Any other questions or comments from the committee here.

If not I think we've done enough work for one day, and we will adjourn and start again tomorrow morning at 8:30 A.M.

As I've said before we will finish up tomorrow by noon. I want to thank all of you who took your time to come here to present your views. Thank you.

[Whereupon, the meeting was adjourned, to resume Wednesday, August 9, 1995, at 9:00 a.m.]

REPORTER'S CERTIFICATE

TITLE:

Advisory Committee on Construction Safety and Health

DATE:

August 9, 1995

LOCATION

Washington, DC

This is to certify that the attached proceedings were held according to the record and that this is the original, complete, true and accurate transcript which has been compared to the reporting or recording accomplished at the hearing.

Bayley Reporting, Inc. August 9, 1995