Advisory Committee on Construction Safety and Health (ACCSH)
Minutes of April 8-9, 1998 Meeting

Occupational Safety and Health Administration
U.S. Department of Labor
Frances Perkins Building, Rooms N3437 - BC&D

The minutes found in the body of this document have not been officially approved by the full committee.

The meeting was called to order by the Chairman, Mr. Timothy Nichols, at approximately 9:15am. He welcomed the committee members and the public and pointed out that Mr. Swanson would be the designated Federal Official for ACCSH. A listing of ACCSH members and OSHA contact personnel is appended to the end of these minutes. After announcing that time would be made available for public comment in the afternoon session, Mr. Nichols introduced the Assistant Secretary of Labor, Mr. Charles Jeffress. A list of members attending this meeting is at the end of this document.

Mr. Jeffress thanked the committee members for undertaking the service inherent in their participation and stressed the importance of the advisory committee in providing input in the formulation of policy. He highlighted the importance of implementing the OSHA Strategic Plan, especially the goal of reducing workplace injury by 15% by 2002, and the changes in our way of doing business inherent in the increased emphasis on measurement. In addition, he pointed out that, while construction fatalities have fallen below the manufacturing fatality rate, he has set a goal of reducing construction fatalities by 15% by 2002. Mr. Jeffress also stated that he wants to push ahead on construction standards and to put special emphasis on addressing demonstrated problems with a variety of innovative solutions. He discussed how the issue of ergonomics affects the construction industry but pointed out that there are differences in how ergonomics should be addressed in the construction industry, in contrast with the manufacturing industry.

Mr. Jeffress brought up the issue of clarifying the Personnel Protective Equipment (PPE) standard in light of the Review Commission's "Union Tank" decision vacating a citation for not providing PPE. The legal arguments in this case hinge on the interpretation of the meaning of the word "provide" in section 1910.132(a). Specifically the question is whether "provide" means "pay for." [The 18 October 1994, "Stanley memorandum" gave guidance attempting to clarify when employers are required to pay for "worker-provided" PPE. While specifying that employers are required to pay for PPE, an exception was constructed such that "where equipment is very personal in nature and is usable by workers off the job, the matter of payment may be left to labor management negotiations." Examples of this were given, including "non-specialty safety glasses, safety shoes, and cold weather outerwear of the type worn by construction workers" in cases where contamination does not render the equipment unsafe for off-site use. The "Stanley memorandum" further stated, "Failure of the employer to pay for PPE that is not personal and not used away from the job is a violation and shall be cited." Although referring to the "Stanley memorandum" and a 1995 OSHA instruction (STD 1-6.6) among other documents, the Commission did not agree that adequate foundations had been articulated for "the change in interpretation," and thus vacated the citation.] Since the Review Commission decision renders the "Stanley memo" unenforceable, rulemaking is necessary to resolve the issue. Mr. Jeffress announced that a proposed standard regarding employer responsibility to pay for PPE would be briefed by John Martonik immediately after his remarks and that the new rule would, in essence, formalize the guidelines enunciated in the "Stanley memorandum." He further stated that he was requesting an immediate response from ACCSH.

Mr. Jeffress went on to ask ACCSH for advice and recommendations on how to recognize excellence in construction safety and health, particularly for small contractors and short term jobs of less than one year's duration, stating that the Star Program is not well suited to the construction industry. He indicated that ACCSH would be briefed on a demonstration program the second day of the meeting.

Mr. Jeffress also requested that ACCSH formulate a strategy to enhance the effectiveness of the inspection program by investigating targeting methodologies to identify high risk sites for attention and assistance in compliance.

In response to a call for questions/comments by Mr. Jeffress, Mr. Cooper stated that the problem of how to best identify construction sites for prioritized inspection has not been resolved and that perhaps ACCSH should investigate how using site specific data and employer specific data could help.

Mr. Smith pointed out that carpenters and painters appeared to have the potential for Musculo-Skeletal Disorders because of the repetitive nature of much of the work they do, even though problems in this area may not have shown up in the data yet.

Mr. Burkhammer stated that an excellence program had been developed some years ago but that he had indications that OSHA did not think that it would work. He asked why. He also pointed out that volumes of data on Musculo-Skeletal Disorders have been collected by ACCSH and that some of that had been presented at Stakeholder meetings.

Mr. Cloutier stated that labor, management and OSHA have been negotiating a proposed standard for steel erection (Subpart R) for three years and asked about the status. Mr. Jeffress stated that the regulatory steps are complete, and that Federal Register announcement should be made this summer on the proposed rule. Mr. Cloutier also suggested that a way to reduce accidents would be to educate our children early. A method to instill safety consciousness in our children might be made more effective if safety awareness programs could be included in our educational systems at an early age, and that an outreach program at the elementary/middle school level might be appropriate. He brought up the fact that recycling education programs for children have had a measurable effect and that following that template should be an option.

Mr. Martonik then briefed the group on the proposed standard on payment for PPE. He discussed the background of the Union Tank decision and the fact that the court had found what it felt were inconsistencies in OSHA's policies. He said that the standard would make it clear that employers are obligated to pay for all PPE except safety shoes, prescription safety eyeglasses, and cold weather outerwear. He further stated that all health and safety standards and regulations promulgated since 1978 emphasize that employers must pay for measures needed to protect employees against injury. In addition, he elucidated a general philosophy on which the standard is based. First, since most employers already pay for PPE, they are put at a competitive disadvantage if other employers allowed not to pay. Second, the word "provide" means "make available without cost." Third, PPE can be considered a control measure, and all other control measures are paid for by the employer (e.g., guardrails). Fourth, PPE is inherently uncomfortable, and employees are more likely to use PPE if it is provided at no cost to the employee. He also pointed out that several states enforce a standard saying that employers must pay for PPE (e.g., California, Washington, North Carolina, and Minnesota). In these states, the exceptions, where they exist, are for safety shoes and prescription safety glasses. Mr. Martonik stated that in cases where PPE becomes contaminated, the employer is responsible for paying for replacement even if the item is among the group that is "excepted." In addition, he said that he did not expect a major cost impact in complying with this proposed rule. He expected that the proposed rule will be published in June 1998, and hearings would ensue the following September. He specifically invited general comments and questions about the proposed rule and questions specifically concerning: its applicability to the construction industry; whether more exceptions should be proposed; what exceptions would be appropriate; specific text where appropriate to accommodate the construction industry; its use and pay patterns.

The question was asked whether prescription spectacles specifically modified for use inside full face respirators were covered under the exception. That issue was recorded as one to consider.

Mr. Cooper proposed a MOTION to modify 1926.95 to require all PPE to be paid for by the employers, with no exceptions.

A discussion ensued which included: concerns about consistency within the construction industry in the safety glasses area; whether ADA might have an impact (the staff solicitor pointed out that this is argued on a case by case basis for a qualified person); the cost impact on employees and employers, and the fact that many employers currently pay for all PPE; whether this issue effects Worker's Compensation; the impact on seasonal workers who are required to buy PPE (especially when a differentiation is made between the acceptability of steel toes versus plastic toes on the safety shoes). ACCSH voted on the motion with the following result: Ayes - 6; Nays - 7. The MOTION failed.

Mr. Rhoten pointed out that the language will affect negotiated contracts all over the U.S. Specifically, the language could be used to wipe out requirements which have been negotiated. Mr. Jeffress stated that the department had no desire to change current practices in the industry.

Mr. Burkhammer proposed a MOTION to leave the language in 1926.95 as currently stated.

A discussion followed during which issues concerning the reliability of data about PPE use, the requirement by some small contractors for workers to purchase a broad range or PPE, and a desire to see more cost analysis were aired. ACCSH voted on the motion with the following result: Ayes - 6; Nays - 2. The MOTION passed.

Camille Villanova next briefed the committee on the recent history of training activities and the Safety and Health Management Standard and Training Workgroups, including a brief summary of the prior ACCSH work group developmental work and recommendations to OSHA. A copy of the March 14, 1997, ACCSH recommendations on a safety and health management standard proposed to be incorporated into the existing 1926 Subpart C standards was distributed. Mr. Nichols stated that new work groups would be appointed on 4/9/98 and outstanding issues could be addressed when the workgroups met.

Mr. Rhoten discussed a pre-training issue that was still out for debate. It was again pointed out that Workgroups would be appointed on Thursday and that the training Workgroup would then be able to address outstanding issues.

Ellen Roznowski briefed the committee on recent issues and initiatives concerning Women in Construction, highlighting the work done to produce a report "Women in the Construction Workplace; Providing Equitable Safety and Health Protection," which will be useful in alerting everyone concerned about the special health and safety problems faced by women in the construction industry. She elicited input and assistance from ACCSH in developing a dissemination plan for this information.

Bob Biersner discussed his review of the confined space standard submitted by the ACCSH Workgroup. In general, he concluded that the proposed ACCSH language provided less protection to employees and imposed more burdens on employers than the existing General Industry standard. He did not recommend reinstating the General Industry standard because of the unique needs of the construction industry. For example, sewer projects and the associated hazards are not appropriately addressed in the General Industry standard. Mr. Biersner indicated that a new project officer will proceed with developing a new standard, with a goal of having it available in six months. Mr. Cloutier stated that he had worked on the draft standard and that he disagreed with Mr. Biersner's assessment, feeling that it cleared up problems with the General Industry standard and provided additional protection to construction contractors.

Ellen Roznowski briefed the committee on Sanitation and Decontamination and Washing Facilities issues. Among the issues she addressed was the need for chain of custody requirements for contaminated equipment because of the frequency of movement of the equipment used by construction sites. She pointed out that deficiencies in 1926.51 which had been identified have not been fully addressed, including hand washing facilities, and soap and water availability. Ms. Roznowski also indicated that the issue of sex-segregated toilets with locking capability needs to be addressed, in addition to the cleanliness and sanitation of the facilities and the availability of toilet paper in proper proximity.

Steve Stock briefed the committee on Scaffolding, with special emphasis on the draft Appendix B to Subpart L developed in May 1997. An additional remaining issue is the need to reopen the standard to address several remaining matters, such as of tying off safety lines to scaffolds. Input from the Scaffold Institute is pending, and NIOSH is conducting a study.

The meeting was adjourned at approximately 11:45, and reconvened at 13:00.

Noah Connell briefed the committee on the progress of current rulemaking, including Construction Safety and Health Programs, Subpart R (Steel Erection), Subpart M (Fall Protection), Respiratory Protection, and Certification. He emphasized that a major goal for all standards is a reduction in paperwork and the use of plain language. He also announced that Lee Smith will be the new team leader for Safety and Health Programs in Construction and for Confined Spaces. Steel Erection has been signed off by the solicitor and requires two more sign offs and OMB approval. The proposed standard is scheduled to be published in July. He indicated that issues involving the definition of "Residential construction," and alternate fall protection procedures as well as towers/tanks would be raised through the rulemaking process relating to Fall Protection. The issue of the impact of the Paperwork Reduction act was also addressed as it pertains to the burden of information collection, especially the fact that the total hours to comply with the underlying requirement must be taken into account, not just the time taken to sign off. It was pointed out that DOL is attempting to reduce the paperwork burden by approximately 25% and that, although revoking some certification requirements due to the burden hours is an option, it is an unattractive one, and this issue is still unresolved.

Ellen Roznowski on the Respiratory Standard. It was pointed out that the respiratory standard was presented to ACCSH in early 1997, the ACCSH comments were incorporated in the preamble, and the standard published in January 1998, replacing a 1971 standard. Some aspects of the new standard are: requirements were updated to reflect new technology; a written program is required; new measures for fit, use maintenance, cleaning, inspection and repair of equipment were incorporated; a program administrator is required; a hazard evaluation must be conducted; and medical evaluations of employees must be conducted with a questionnaire evaluated by a licensed health care professional; training is specified as an annual requirement. It was stated that the incremental cost per employee to comply with the new standard was calculated as $22.

In response to a question from the council, it was stated that a cost benefit analysis for use of the new standard in terms of lives saved and injuries prevented was conducted, with the benefits exceeding the cost. Mr. Swanson pointed out that OSHA could provide more cost data if required but that the new standard is set to go into effect. Mr. Edginton pointed out that the "health care professional" is normally a physician but can be some other licensed professional if the rules of the state where the site is located allow.

Mr. Nichols proceeded to read the assignments to the ACCSH Standing Committees and Workgroups and stated that a written list would be provided on Thursday morning. His motion to accept the assignments was seconded.

A free flowing discussion ensued concerning administrative details in support of the Standing Committee and Workgroup meetings. Highlights include: OSHA will pay for ACCSH members to travel to meetings; the location for sub-committee meetings is to be decided by the chairman of the sub-committee; workgroup meetings will be open to the public but not announced via the Federal Register; all parties desiring to attend sub-committee meetings should contact the chairman of the sub-committee and ask to be notified as to the location of meetings; OSHA will support holding meetings via teleconference; OSHA will post sub-committee schedules on the OSHA web page if requested (Mr. Swanson will coordinate notification of all workgroup meetings); OSHA will make administrative support available at headquarters or in field offices if requested (coordinated through Mr. Swanson).

Mr. Burkhammer made a request that a Fall Protection workgroup be formed, and Mr. Masterson and Mr. Devora volunteered to co-chair the workgroup. Mr. Nichols made a MOTION to form the workgroup, and it was seconded and approved by the committee. Mr. Nichols made a MOTION to form a Data Collection workgroup with Ms. Sweeney and Mr. Buchet as co-chairs, and it was seconded and approved. Mr. Nichols made a MOTION to form a Subpart M workgroup with Mr. Edginton and Mr. Cooper as co-chairs, and it was seconded and approved.

The afternoon session concluded with further discussions concerning the proposed PPE standard. Some of the employee representatives expressed uncertainty as to whether the proposed new rule detracts from protection of employees. There was some frustration with OSHA's lack of clarification on the content of the "five interpretations" cited by the commissioners in the Union Tank decision. One member asked whether it would be feasible to make a motion to reconsider the current draft of the PPE draft standard pending review by the members. The solicitor representative (Ms. Shortall) stated that the issue of the "five interpretations" was moot because OSHA has decided to proceed to a rule. It was pointed out by OSHA representatives that the Assistant Secretary had definitely heard how the committee felt about the proposal and would give "due consideration" to that position, perhaps by changing language in the preamble.

Further public comment was solicited, and when no one from the gallery responded, the meeting was adjourned at approximately 14:30 to allow for workgroup discussions.

The meeting re-convened Thursday morning at approximately 0900 with Assistant Secretary Jeffress providing an introduction for the topic of Special Recognition Programs for Construction. He reported that OSHA is going ahead with a pilot program to recognize excellence and that the program will be limited to 4 employers to ensure that control of the program is maintained. He described the Voluntary Protection Program (VPP) as OSHA's premier recognition program for management leadership and said that one of his goals was to develop these programs to the point that the programs function as sounding boards and laboratories for new programs and policies as they function in the real world. Mr. Jeffress described the construction industry as a more dynamic environment than general industry. He pointed out that over 350 sites involving almost 200,000 employees were currently in the Federal VPP programs and that, on average, lost work day incident rates at VPP sites are 60 percent below the national averages.

Cathy Oliver provided more information for the committee on Special Recognition Programs for Construction. She went into additional detail about the demonstration program, stating that one company has been selected and will be limited to four sites. The program will run for three years. She went on to discuss various other aspects of the VPP, including: the application process; the weekly jobsite safety analysis; the PPE program; safety and health rules; the involvement of both employers and employees in properly accomplishing training; the commitment from company executives; the one year minimum for site applications; implementation of other programs; abbreviated applications; and the importance of joint labor-management committees.

Mr. Cloutier stated that the one year minimum for sites is very restrictive for the construction industry because the average site in this industry is not active for more than one year. He also asked why the selection process could not be streamlined by screening for companies with low accident rates and cutting out some of the other steps. He gave the example that, if a company is recognized by the Business Roundtable, the excellence of that company's program as represented by that achievement should be appreciated. It was agreed that a workgroup would examine this issue.

Mr. Edginton indicated that a perception exists in the labor community that the VPP Association is getting more control over the VPP process than OSHA itself. They feel that OSHA affords special treatment to VPP participants when an accident occurs. Ms. Oliver responded that enforcement procedures go into effect regardless of the VPP status of a given company.

Ms. Marie Haring Sweeney pointed out that 80 % of construction firms have less than 10 employees and that there appears to be a need to identify some small contractors with excellent safety records to use as an example.

Mr. Bagdy asked the workgroup to keep him apprised of their deliberations.

Mr. Swanson briefed the committee on issues of importance to the Directorate of Construction, including Special Emphasis Programs, Partnership, Statistics, and Residential Construction Grants. He cited an increase in serious violations in the last year, along with increases in the number of accidents and fatalities in more recent years, to contrast with the stated goals of the Assistant Secretary to achieve a 15 % reduction in overall injuries, and a 15 % reduction in fatalities the end of 2002. Mr. Swanson pointed out that these goals just cannot be achieved doing things the same way we always have. In the area of Special Emphasis, he discussed targeting mechanisms and re-invention, saying that these have been successful, but not sufficiently so. He also discussed outreach and partnership programs and solicited input from the committee in developing programs to improve safety. After a short briefing on the status of Residential Construction Grants, Mr. Swanson discussed data development and how to coordinate collection of data with BLS and other institutions in addition to how the workgroups might assist in integrating these activities with targeting and the scheduling of enforcement.

Mr. Nichols announced that at future committee meetings, chart boards would be prominently posted addressing workgroup functions and time lines to assist everyone in following the discussions and status of activities. A question was raised concerning whether a part of the increase noted in serious deficiencies might stem from a double counting effect which happens when a sub-contractor is cited, because in these cases the prime contractor is cited as well. Mr. Swanson stated that he had not data in hand to respond to that question. Ms. Sweeney asked whether effectiveness is evaluated for the grants, and Mr. Swanson replied that there is an evaluation component in each grant.

Ms. Marie Haring Sweeney gave the committee a briefing on Construction Programs at the National Institute for Occupation Safety and Health (NIOSH), including background information about NIOSH, and how to order the new NIOSH Construction Package (ask for NIOSH Publication number 97152 at phone number 1-800-35N-IOSH ), and descriptions of several of the surveillance programs. She described how these surveillance programs collect a wide range of useful data, from mortality rates in the construction trades to discovering that there has been a surge recently in eye injuries to plumbers. Ms. Sweeney discussed other related topics including: etiological research; methods development research; interventions; communications and information dissemination; technical documents; the Construction Resource Center; and the NIOSH Internet site. She concluded by stating that in the construction arena NIOSH is currently giving priority attention to issues involving: information and data collection; small businesses and independent contractors; non-union sites; and residential construction.

Public comment was solicited: Richard Pfau, a safety director for a local construction company brought up the issue of multi-employer work sites and the fact that, if a subcontractor is cited, the prime is also cited. He pointed out that in Fairfax County, Virginia, a single serious citation can eliminate a contractor's ability to bid on county jobs, and asked ACCSH to address OSHA's multi-employer citation policy. Mr. Nichols stated that anyone desiring to participate in such a workgroup should give their name and address to one of the co-chairs.

George Kennedy, representing a contractor group, stated that OSHA would spend too much money auditing four big companies for VPP and would do better to spend the money on programs that would benefit small construction companies.

Marc Freedman, representing another contractor group, stated that OSHA needs to direct more assistance (like information publications) to small employers.

Claudia Harris, representing another contractor group stated that OSHA needs to mail information packages or place all information related to the upcoming meetings at an Internet site so these materials could be read by all interested parties prior to the meeting and that OSHA should have enough hand-outs available at the meetings.

After some discussion, Mr. Swanson announced that as much information as possible concerning ACCSH would be posted on the OSHA Internet site, including the minutes of the meetings. Some of the other specific requests such as incorporating a search capability and posting executive summaries were taken under advisement. He also stated that a government liaison representative would be assigned to each subcommittee. In addition, Mr. Swanson stated that the exact date for the next ACCSH had not been scheduled, but that it should occur in July. The meeting was adjourned at approximately 1130.

The following members of ACCSH were in attendance.

EMPLOYEE REPRESENTATIVES

Larry A. Edginton

Director of Safety and Health

International Union of Operating Engineers

1125 17th St., N.W.

Washington D.C. 20036

(W) 202-429-9100

(FAX) 202-778-2691

EMPLOYER REPRESENTATIVES

Felipe Devora

Safety Director

Fretz Construction Company

P.O. Box 266784

Houston TX 77207-6784

(W) 713-641-6777

(FAX) 713-641-4676

STATE REPRESENTATIVES

Danny Evans

Chief Administrative Officer

OSH Enforcement Division of Industrial Relations

Nevada Dept. Of Business and Industry

400 West King St. 89703

Carson City NV 89703

(W) 702-687-3250

(FAX) 702-687-6150

PUBLIC REPRESENTATIVES

FEDERAL REPRESENTATIVE

Marie Haring Sweeney, Ph.D.

NIOSH

4676 Columbia Parkway

Mailstop C-32

Cincinnati, OH 45226

(W) 513-533-8339

(FAX) 513-533-8230

COMMITTEE CONTACTS

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH (ACCSH)
STANDING COMMITTEES

OSHA National Office Operations

Purpose
To monitor and offer advice and assistance on agency administrative issues (e.g., budget, staffing) as those activities pertain to construction.

Co-chairs - Steve Cooper, Robert Masterson
Members - Michael Buchet, Danny Evans, Harry Payne
DOC Staff Assigned - Berrien Zettler

OSHA Field Operations

Purpose
To monitor the agency's field operations and offer advice and assistance in policy development in the areas of enforcement (to include emphasis programs, settlement agreements) and other activities such as CSHO training, compliance assistance, Partnership Programs and other cooperative programs, as these activities relate to construction.

Co-chairs - Larry Edginton, Stewart Burkhammer
Members - Robert Masterson, Owen Smith, Jane Williams
DOC Staff Assigned - Dave Morgan

Standards

Purpose
To monitor and offer advice and assistance on the agency's standards promulgation, interpretations, and directives development as these activities relate to the construction industry.

Co-chairs - Stephen Cloutier, Bill Rhoten
Members - Gladys Harrington, Felipe Devora, Marie Haring Sweeney
DOC Staff Assigned - Noah Connell