Advisory Committee on Construction Safety and Health (ACCSH)
Minutes of July 22-23, 1998, Meeting

US Dept of Labor
Frances Perkins Building
Room N - 3427 A,B, & C
200 Constitution Avenue, N.W.
Washington, DC

The meeting of the Advisory Committee on Construction Safety and Health (ACCSH) was called to order by the Acting Chair, Stewart Burkhammer, at 9:00 a.m. on Wednesday, July 22, 1998. The following members were present for all or part of the meeting:

Labor Representative and former Chair, Timothy Nichols had resigned from the Committee prior to the meeting and was not present. Federal Representative Ms. Marie Haring-Sweeney and Employer Representative, Mr. Stephen Cloutier were unable to attend. Approximately 75 members of the public were in attendance at various times. Acting Chair Stewart Burkhammer introduced himself and welcomed the public. The minutes of the previous meeting were accepted with a change on page 6 correcting a typographical error referring to Subpart M which should have read Subpart N. Attendees were reminded that if they desire notification of Workgroup meeting dates and venues, they should notify either the applicable Workgroup Chair or assigned Directorate of Construction (DOC) staff.

John Martonik gave a briefing on the Personal Protective Equipment Proposal. He began by giving some background on how the proposal has evolved, including the Union Tank case, which the Agency has chosen not to appeal. Rather, the decision was made to address the issue of who must pay for various types of PPE via rule making, and a draft regulatory text was accordingly presented to ACCSH at the 8 April board meeting. OSHA has made some amendments and is currently in the process of gathering additional data, including national use and pay patterns, to be used in finalizing the requirements. A survey will be conducted this summer, and the results will become available in the fall. It is anticipated that the proposed regulation will be published later this year with the caveat that, as a significant policy issue, OMB must review it. Edginton asked a number of questions concerning how the survey would be administered and what kind of questions would be included. Martonik replied that they would be using an experienced contractor, and described how a representative sample would be achieved. He indicated that OSHA staff experience would be utilized to compensate for the fact that certain segments of industry will reflect more prevalent PPE use than others. The survey data will be used for additional purposes after it has been determined to be valid. In addition, he announced that copies of the survey will be made available to the Board. In response to a question from Masterson, Martonik said he would provide information on what SICs would be used, also pointing out that the contractor would survey both Construction and General Industry.

John Martonik was asked to proceed with his briefing on the Powered Industrial Trucks Final Rule which had originally been scheduled for the next day. He commenced by pointing out that a large number of accidents and injuries are associated with use of Powered Industrial Trucks, and that NIOSH studies have shown that effective training can reduce these occurrences significantly. He reported that OSHA has proposed to amend its standard to conform with the American National Standards Institute, and that the standard was in finalization stage, to be published in September. Since OMB review is not required, it was anticipated that it should proceed quickly into the Federal Register.

Jeff Snyder followed that briefing with a discussion of Hexavalent Chromium in Construction-Rule Making to Control Occupational Hazards. He provided some background information, beginning with a union petition to OSHA in 1993 concerning Hexavalent Chromium (HC) hazards, and discussed the health effects associated with HC exposure, based on epidemiological studies. Snyder also informed the attendees that OSHA is updating the health data base and the quantitative risk assessment associated with HC in addition to following research on the biological mechanism for HC toxicity. He anticipated that a proposed rule would be available in late 1999. Snyder believes that this issue is pertinent to the Construction Industry, especially for workers involved in welding and cement work, but said that OSHA desires input. After further discussion concerning the applicability to the Construction Industry, the Acting Chair announced that the committee would consider having a Workgroup review the draft proposal. Rhoten made the observation that he was certain that welders were vulnerable, but that the exposure probability would be much higher for welders in fabrication shops (General Industry), than those out in the field (Construction Industry). Smith asked about reducing exposure for concrete workers, and was informed that exposure could be controlled using gloves and skin-covering garments. Mr. Snyder informed the committee OSHA has a team working on this issue.

Steve Cooper briefed the committee on Sanitation Workgroup concerns. He reiterated the importance of providing adequate and sanitary water closet facilities for all workers and pointed out that this is of particular importance for women at remote sites. The Committee shared this opinion. It was agreed that the Workgroup will report on this issue at the next Committee meeting and provide a rough draft of a new standard to address these concerns. The Workgroup is also in the process of obtaining input from industry on cost/availability data.

Mr. Burkhammer gave a synopsis of the most recent Confined Space Workgroup meeting, indicating that the latest draft of the Confined Space standard had been reviewed by the Workgroup. Input has been submitted to OSHA in an attempt to resolve conflicts. Another meeting will be held in the near future, and a full report will be provided at the next ACCSH.

Loretta Schuman next reported on the development of a standard for Crystalline Silica (CS). Much of the background material alluded to in the briefing is contained in an article which was distributed - Scand J Work Environ Health 1995;21 suppl 2:47-9. She explained the current Permissible Exposure Limit (PEL) for CS and gave some examples which demonstrated how small the allowable limit is. Schuman reported that very high exposure can cause death in a few weeks, while lower exposures can cause death in 10 years or more. She reported that approximately 2 million US workers per year are exposed to CS and that some 100,000 of those are considered to be at high risk. Some of these high risk workers are in the construction industry. She estimated that approximately 300 deaths per year are attributed to CS exposure. The standard for CS will address, at a minimum: product substitution; engineering controls; respiratory protection, medical aspects; and training and education. Schuman stated that as part of a risk assessment to determine if the exposure limit needs to be reduced, OSHA needs to conduct technical and economic feasibility studies by visiting construction sites. They are requesting volunteers in the Construction Industry. A discussion ensued between Schuman and the board members during which she answered specific questions about her report.

Mr. Swanson announced that due to the unusually warm weather afflicting large portions of the country, a presentation on Heat Stress would be made after the 3 o'clock break.

Mark Hagemann filled in for John Franklin in giving a report on the status of data collection on OSHA's up-dated form 170. He discussed the fact that enhanced coding procedures were implemented in January 1997 to make it easier to extract useful information by analysis of accident data. For example, it should be possible in the future to develop a finite breakdown for fatalities (e. g., by SIC, type job, weather, season, etc.), and therefore to prioritize actions to prevent accidents. The University of Tennessee has been contracted to analyze the data and provide a report. Concerns were aired about the possibility of lumping all construction data, thus having the ability to break out the data. The new form identifies the type of site where the accident occurred. State Plan states are not included in the survey and concerns were raised about the fact that although this data is published, it is in a different format, and not necessarily as detailed as the OSHA-170 data. One board member stated that anecdotal information appears to indicate that accident rates rise near the completion of a job on construction sites. Swanson replied that the current methodology does not capture that data, but that OSHA would appreciate recommendations on how to evaluate whether this is a widespread problem. Rhoten suggested that measuring the training level of victims might be useful. These issues were referred to the Data Collection Workgroup. [What does this part in blue mean? I must say that it means nothing to me. Can Franklin help in recasting these sentences?]

After that discussion Mr. Hagemann was asked to provide a Steel Erection Negotiated Rule Making Advisory Committee (SENRAC) briefing. He reported that the proposal is very close to approval by OMB and should go to the Federal Register in August, 1998. A final rule is expected in 2000. Steve Cooper added some background on slip resistance on structural steel and on the activities of the Steel Coalition. He indicated that the Steel Coalition has committed to study the discontinuance of vanishing oil and the introduction of methods of increasing slip resistance, such as dimpling, etching, and new coatings.

Bob Pitulej gave a presentation on OSHA Reinvention, stressing that the goals of revamping field offices are to:

reduce workplace injuries, illnesses and deaths; improve the quality and timeliness for delivery of service; develop a capacity to proactively solve problems and not just respond to them; focus on the worst actors and hazards; and increase the types of compliance assistance provided to employers. He went on to discuss the Implementation plan, and the linkage between Strategic Planning and Reinvention, including the encouragement of local initiatives to develop projects and improvements. He emphasized that Area Office staff are responsible for implementing many of the strategies outlined in OSHA's Strategic and Performance Plans and that local initiative plays a key role in goal accomplishment, including problem-solving and "Break-Through" projects.

Elise Handelman, from the Office of Occupational Health Nursing, gave a briefing on Heat Stress and discussed some of the resources that OSHA has available for employers and employees to educate them about heat-related illness, its causes, avoidance, symptoms, and treatments. One resource distributed to the attendees is a bilingual (English/Spanish) pamphlet called "The Heat Equation," which explains the human body's reaction to heat loads, describe heat illnesses, and indicates appropriate first aid. A 30 June 1998 OSHA News Release ("Cool Tips") was also distributed. This News Release gives directions for viewing an OSHA Fact Sheet ("Protecting Workers in Hot Environments," dated 1 Jan. 1995) at the OSHA internet site. One of the board members pointed out that many young workers mistakenly believe that heat illnesses only affect older workers and that this can be a problem on construction sites. Handelman also stated that a News Release on cold weather precautions for working outdoors would be published prior to the onset of winter.

Mr. next briefed the committee on record keeping. He indicated that responsibility for the recordkeeping rulemaking project has been transferred from the Director of Statistics to the Director of Policy and that the fial rule rule is scheduled to be published in the spring of 1999 and implemented early in 2000. This will allow time for outreach and for State Plans to develop their plans to come under the new rule. In response to a question as to who would be covered under the final rule from Felipe Devora, Maddux replied that the definition of a major construction project was one that cost more than $1 million. Various issues concerning the housing construction industry's difficulties performing recordkeeping were discussed, including the fact that a General Contractor might have as many as 50 sub-contractors working on a single home. This creates a difficulty for the builder (general contractor) to ensure the accuracy of injury data, especially if the sub-contractor keeps inadequate records.

Berrien Zettler then gave a briefing on the OSHA Draft Revised Strategic Plan for Fiscal Year 1997 - 2000, which was revised July 17, 1998. He emphasized that the Department of Labor plan acts as an umbrella, and the OSHA five year plan must fold in. For instance, DOL Strategic Goal 3 ( Quality Workplaces - Foster quality workplaces that are safe, healthy, and fair) and DOL Strategic Goal 3.1 ( Reduce Workplace Injuries, Illnesses, and Fatalities) produce: OSHA Strategic Goal 1 ( Improve workplace safety and health for all workers, as evidenced by fewer hazards, reduced exposures, and fewer injuries, illnesses, and fatalities); OSHA Strategic Goal 2 ( Change workplace culture to increase employer and worker awareness of, commitment to, and involvement in safety and health); and OSHA Strategic Goal 3 ( Secure public confidence through excellence in the development and delivery of OSHA's programs and services). Further, each OSHA Strategic Goal has a series of OSHA Outcome Goals associated with it . Thus OSHA Outcome Goal 1.1 ( By FY 2002, reduce the number of worker injuries, illnesses, and fatalities by focusing nation-wide attention and Agency resources on the most prevalent types of workplace injuries and illnesses, and the most hazardous industries, and the most hazardous workplace) produces a series of specific goals beginning with Goal 1.1A ( By FY 2002, reduce three of the most prevalent type of workplace injuries and causes of illnesses by 15% in selected industries and occupations.) , which refers to amputations and lead and silica related illnesses. Zettler highlighted Goal 1.1C because it aims to "decrease fatalities in the construction industry by 15% by focusing on the four leading causes of fatalities (falls, struck-by, crushed-by, and electrocutions and electrical injuries)." He emphasized that the plan recognizes that to improve workplace conditions you must have stakeholder support and that partnership and outreach are important components of the strategy. Zettler also discussed the fact that in some ways, compliance with the Government Paperwork Reduction Act (GPRA) makes measurement of progress towards achievement of these goals more challenging and that dealing with this is an ongoing problem.

Noah Connell and Bruce Justh briefed the group on Multi-Employer Citation Policy (MECP) and the possible impact of the IBP decision on construction enforcement. This case did not involve the construction industry but might encourage future legal actions challenging the viability of MECP. OSHA is concerned because, when the court vacated the citation against IBP, it implied acceptance of the argument that IBP did not control the hazard at the time that a subcontractor employee was killed due to non-compliance with lock-out/tag-out procedures. There are factors in this case which might make it difficult to generalize the applicability to the construction industry. For instance, the incident happened at night, with only subcontractor personnel on duty, and in this case it was argued that the only contractual control was the right to terminate the contract. [Have Noah review this blue section.] The OSHA solicitors point out that other appellate courts have recognized the viability of the MECP doctrine. Discussions ensued, in which the solicitors affirmed that it is still OSHA policy that a General Contractor has a duty and right to correct safety infractions. They feel that case law will still support this stance although, if it can be shown that the General Contractor has met the standard of due care, it might be possible to avoid liability. Further discussions highlighted a need to clarify language in the Field Information Reference Manual (FIRM) and a concern that "hold harmless" clauses are being used by General Contractors to avoid their responsibility to enforce safety on their work sites.

Mary Ann Garrahan gave a presentation on the OSHA Electronic Information System. Larry Edginton stated that he was concerned with the emphasis toward putting everything on the internet, because many users who were benefiting from the CDROM based system are being left out. Currently with the latest version, an internet browser to even use the newest CDROMs, and Michael Buchet estimated that 2/3 of the construction industry does not have access to the internet.

Jule Jones reported on Subpart M-Fall Protection Issues. A notice of proposed rule making should be submitted in the near future. The public has already submitted a large quantity of comment/input.

The acting chairman solicited comments from the public. Richard Pfau, a safety director for a local construction company, brought up the issue of multi-employer work sites and requested to be notified of Workgroup meetings. It was reiterated that anyone desiring to be notified about Workgroup meetings should inform the Chair of that Workgroup or the listed DOC staff person. Those who have requested notification will be informed about locations and times of Workgroup meetings. Swanson also stated that ACCSH minutes will not be posted on the internet prior to the committee's approval at the following meeting.

The meeting was then adjourned at 4:30pm.

The Acting Chair, Stewart Burkhammer, brought the meeting to order at 9:00 on Thursday, July 23. After a few comments on Workgroup procedures, Swanson introduced the Assistant Secretary of Labor, Charles Jeffress. Jeffress gave an overview of the status of legislation affecting OSHA, especially the budget, where it appears that enforcement funding will be reduced. He assessed the impact as the loss of approximately 140 positions. Jeffress also discussed the Strategic Plan, saying that he is not currently proposing changes that would affect construction. The 15% injury/illness reduction goal is still in place. He solicited input from ACCSH on how to improve targeting in pursuit of this goal. A wide-ranging discussion ensued between Jeffress and various committee members concerning: how injuries are reported; how injury rates show a large variance from site to site, even for the same company; how the presence of a medical station on site appears to reduce the number of work days lost; and how the ability of a company to temporarily reassign an employee to a job which accommodates an injury also reduces the number of lost days. Jeffress stated that he would like the new record keeping rule finished by the spring of 1999, to allow for a six month country-wide training period on record keeping, and implementation in January 2000. He welcomed input on ways and means to accomplish this objective. Jeffress went on to discuss cooperative compliance programs and other means of local level involvement to prevent workplace injury/illness. Another significant issue Jeffress discussed is the possibility that OSHA will take over safety enforcement on DOE sites. DOE is scheduled to submit a plan to Congress to accomplish a transfer of responsibility for these sites at the end of October. In response to questions from the committee, he also reiterated OSHA's strong support for MECP. Cooper suggested that care must be taken when entering into cooperative agreements to ensure that there is a way of policing compliance. Jeffress also addressed concerns he has shared with Congress about the treatment and protection of whistle-blowers.

Bruce Swanson gave a detailed report on the Directorate of Construction which included the following topics: long standing vacancies in the Directorate; outreach/partnership programs; new training programs; pilot programs; grants; and construction inspection results.

Guy Toscano gave a Bureau of Labor Statistics presentation on Occupational Injury and Illness Statistics which covered historical data on the following topics, among others: workplace fatalities broken out by cause of death; sources of fatal injury data; fatal injuries broken out by sex, industry group; and percent distribution of fatal work injuries in construction by type of fall. More information can be retrieved by visiting the following internet site.

In addition, the Occupational Injury and Illness Classification System (OIICS) Manual can be accessed by visiting the following site.

The final presentations were on Ergonomics and Fiberglass were made by Adam Finkel, Director of Health Standards. The current goal is to finish the ergonomics proposed standard by the summer of 1999. This standard is unusual in that, instead of laying out design oriented requirements, it sets out ways to assess, recognize, and deal with ergonomics related problems. The emphasis is on achieving a tailored response, using hazard analysis, worker participation, medical management, and project evaluation. A number of aspects of the fiberglass proposed standard were discussed, including the fact that the PEL is different for manufacturer and installation/removal operations. It was pointed out that training will be required in the following areas: respiratory protection, medical monitoring, medical assessment, and exposure levels. Edginton commented that this is a promising concept, but that he felt that demolition and rehabilitation activities pose potential problems.

The Acting Chair announced that two new Workgroups would be formed: Hexavalent Chromium, Chaired by Rhoten, and Co-chaired by White; and Multi-Employer Citation Policy, Chaired by Devora, and Co-chaired by Evans. He also announced that Targeting would be included as a topic for the Data Collection Workgroup, and that all committee members with mark-up recommendations for the Form 170 should forward them to Cooper, who will forward a combined input to Swanson. In response to a query from the Acting Chair, Swanson said he would take under advisement a request to produce a CDROM containing only Construction Industry information. The date for the next meeting was set for October 7 and 8 at the Department of Labor, with October 6 and 9 reserved for Workgroup meetings. The Sanitation Workgroup will present a draft for a new standard to the committee. Swanson stated that no decision had been made concerning a permanent Chair, and he solicited input for the agenda for the next meeting.

The meeting was adjourned at 1:15 p.m. on Thursday, July 23.

Attachments: Agenda