United States Department of Labor
Advisory Committee on Construction Saftey and Health (ACCSH)
Thursday, February 17, 2005

Holiday Inn Select
10233 West Higgins Road
At Mannheim Road
Rosemont, Illinois 60018

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The meeting was called to order, pursuant to notice, at 9:42 a.m., DANIEL MURPHY, acting Chairman, presiding.

LISA DENNIS COURT REPORTING
(410) 729-0401

PRESENT:

ACTING CHAIR

DAN MURPHY
Acting Chairperson
Allied North America

EMPLOYEE REPRESENTATIVES

SCOTT SCHNEIDER, CIH
Director, Safety & Health
Laborers’ Health and Safety Fund of No. America

EMPLOYER REPRESENTATIVES

MICHAEL J. THIBODEAUX
Director, Risk Management

GREG STRUDWICK
President
Greg Strudwick & Associates, Inc.

LINWOOD O. SMITH
Vice President - Risk Management & Safety
T.A. Loving Company

STEPHEN M. WILTSHIRE, M.S.
National Safety Director
Market Segments Business Units
Turner Construction Company

STATE REPRESENTATIVES

KEVIN D. BEAUREGARD
Assistant Deputy Commissioner, Assistant Director
Division of Occupational Safety & Health
North Carolina Department of Labor

DOUGLAS J. KALINOWSKI, CIH
Chair - OSHSPA/Director Michigan
Occupational Safety and Health Administration

PUBLIC REPRESENTATIVES

THOMAS A. BRODERICK
Executive Director
Construction Safety Council

MICHAEL W. HAYSLIP
President/Owner
National Excavation & Safety Training Institute

FEDERAL REPRESENTATIVE

CHERYL F. ESTILL, M.S., P.E.
Industrial Hygiene Supervisor, Industry Wide Survey
Branch, DSHEFSCDC
National Institute for Occupational Safety & Health

DESIGNATED FEDERAL OFFICIAL

RUSSELL B. SWANSON
Director, Directorate of construction
U.S. Department of Labor - OSHA

COMMITTEE CONTACTS

MICHAEL M.X. BUCHET
Office of Construction Services
Directorate of Construction

SARAH SHORTALL
ACCSH Counsel
Office of the Solicitor

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C O N T E N T S

Call to Order

Introduction of members

Initial Consideration of Draft Proposed Rule on Confined Spaces in Construction

Presentation of Steel Coalition

Update - Development of NIOSH construction Program Plan

Public Comment

Consideration of Draft Proposed Rule on Confined Spaces in Construction Continued

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E X H I B I T S

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P R O C E E D I N G S

CALL TO ORDER

CHAIRMAN MURPHY: I would like to call the meeting to order. My name is Dan Murphy. I’m acting as Chair for today’s meeting.

A couple of items of housekeeping before we get started. First of all, being a safety and health person, I want to make sure that if there is any problem in here, everybody gets out of this hotel safely. There is an exit right behind you here to my right. You can also go down the hall and out the front doors, that’s the other exit out of the building. I’m sure with the refreshments we’re serving in the back of the room, folks will need the restrooms. They are down the hall and to the left if you should have need of restroom facilities.

The first order of business today is introductions. I’d like to make sure that everybody has a moment to introduce themselves, and I’ll tell you a little bit about myself.

My name is Dan Murphy. I am an employer representative on ACCSH, and I’m filling in for a very good friend of ours that had to be at another meeting, Bob Krul. With that, I’ll go to my left, and if Sarah would start it off, please.

INTRODUCTION OF MEMBERS

MS. SHORTALL: I’m Sarah Shortall. I’m ACCSH counsel from the Office of the Solicitor.

MR. WILTSHIRE: Good morning. My name is Steve Wiltshire. I’m the National Safety Director with the Turner Construction Company segment groups based in New York.

MR. HAYSLIP: Good morning. Mike Hayslip, public representative with NESTI.

MR. BRODERICK: I’m Tom Broderick with the Construction Safety Council here in Chicago. I am also a public member.

MR. THIBODEAUX: Mike Thibodeaux with Lennar Corporation, employer rep.

MR. SMITH: Linwood Smith. I’m an employer with T.A. Loving Company in North Carolina.

MR. KALINOWSKI: I’m Doug Kalinowski, Director of the Michigan OSHA program. I’m the state plan representative.

MR. BEAUREGARD: Kevin Beauregard with the North Carolina Department of Labor, and also a state plan representative.

MS. ESTILL: Cheryl Estill, federal representative with the National Institute for Occupational Safety & Health.

MR. SCHNEIDER: I’m Scott Schneider with the Laborers’ Health and Safety Fund of North America. I’m an employee rep.

MR. STRUDWICK: I’m Greg Strudwick, employer rep, Greg Strudwick and Associates and the National Utility Contractors Association.

MR. SWANSON: And I’m Bruce Swanson from the Directorate of Construction in the capacity here as a designated federal official.

CHAIRMAN MURPHY: And if we could for the folks in the audience, if you would be kind enough to state your name and the company you’re with. If you would be so kind, Filipe, would you start that off?

(Whereupon, the audience members introduced themselves.)

CHAIRMAN MURPHY: I just had a request. If anyone didn’t see the sign-in sheet on the table outside the doors, if you would be so kind as to sign in before you leave today, we’d greatly appreciate it.

Another matter of business is we should make sure that everybody is aware that there is a sign-up sheet on the back table. If you would like a few moments to make a comment, we would appreciate if you would sign in, and then we can have you do that later on this afternoon.

The next thing I would like to do is introduce Bruce Swanson as the representative from the Department of Labor to make a few comments.

Bruce?

MR. SWANSON: Okay. Those of you that have a copy of the agenda can see that we have a half hour set aside here for comments from the Assistant Secretary. Unfortunately, we don’t have an Assistant Secretary. I very graciously offered this to our visiting regional administrator in the audience, and he said he wasn’t interested either.

I’m glad those of you that are with us today were able to find the hotel and join us. You can see we have a very streamlined agenda. A couple of things onto the end of Tom’s conference here. Things are kind of jumbled for us this morning.

I am having some copies printed of the draft proposal for confined space. It was my suspicion that not everyone brought the copy that had been handed out to them last time around. One of the important pieces of business that we would like to get done today is I would like to hear from the full committee a formal response, your advice as to how OSHA should proceed with the standard that you’ve now had several months to, the proposed standard, the draft standard, that you’ve had several months to review. We’ll be looking forward to that shortly.

We also are going to hear a presentation from the Steel Coalition. They have concluded a study, and they shared it some months ago with the Assistant Secretary. It proposed that OSHA take some action. They have multiple signatories on their study. I’m sure they will share that as they review it for you this morning. When we are able to find some video equipment for them, we will have that presentation scheduled for an hour from now.

What we are doing by asking the Steel Coalition to come to this format, or forum rather, and make their presentation, this is our way of looking for feedback on their proposal from the construction industry. As I said, they have multiple party signatories to their document, but they are asking us, OSHA, for some endorsements, and we are using this forum to ask you, our window to the construction community, are there any opinions out there that would indicate to us that we shouldn’t do as asked? We are not going to close the door at the end of this meeting and say well, you didn’t speak up.

But please, you are all representatives of larger groups. Please check with your constituents, and we will be looking for feedback in the days and weeks ahead. Please channel that through my office. We will react accordingly.

We have several other presentations today, but I think we’ll just let those self-introduce when the time comes. I’m sorry that you didn’t get to hear the Assistant Secretary. I really am sorry that we don’t have an Assistant Secretary. Jonathan Snare, the Acting Assistant Secretary, was unable to make it, and he apologizes.

INITIAL CONSIDERATION OF DRAFT PROPOSED RULE ON CONFINED SPACE IN CONSTRUCTION

CHAIRMAN MURPHY: Thank you very much, Bruce. The first order of business, and I will defer to Bruce. Do we have the copies of the confined space information here yet?

MR. SWANSON: That looks like a no to that.

CHAIRMAN MURPHY: Because that’s our first order of business, sir.

In your packets, there is copies of the minutes from the last meeting that I’m sure everybody has read. I’d like to see if we could approve those minutes and get a motion for that, if you would be so kind.

MR. HAYSLIP: So moved.

CHAIRMAN MURPHY: Thank you, sir. A second?

MR. STRUDWICK: Second.

CHAIRMAN MURPHY: All in favor? Okay. Sarah, we got that done. I don’t think there are any comments or corrections. No hands went up. Okay. While we’re waiting here, I suggest those of you that have the information on confined space, if you’ve had the opportunity to review it or pull it out, we’d greatly appreciate some discussion on the information you received in our last meeting. Hopefully very quickly here we’ll have some copies for those that don’t have them.

MR. SCHNEIDER: Do we have any idea, is there anything written about how this differs from the draft that we looked at at the last meeting? Has there been any changes at all? Or is it identical to the last draft?

MR. SWANSON: The document that you were handed out at the last meeting is the document that we’re talking about. There have been no changes.

MR. STRUDWICK: There was an overview, I think by Mr. Cloutier and another individual, about the document that we received last time. It did clarify some of the permit versus non-permit situations in the new document, or in the draft that we will receive ultimately.

But from our standpoint, there was some clarification as to the type of permit required for confined spaces. We feel relatively comfortable with what is in the document itself. So from the NUCA side, George Kennedy, myself, the group that reviewed that internally, felt comfortable with what was in the document as it was presented in the October 4th or 5th draft.

CHAIRMAN MURPHY: Other comments or discussion on that document?

MR. HAYSLIP: Any idea when we’ll see it? When the copies will be here? Is there an ETA?

CHAIRMAN MURPHY: They are being copied as we speak, so it should be any time now, I would hope.

MR. HAYSLIP: I have a few comments, but I really wanted to look at what we’re going to hand out to confirm that I’ve got the latest copy, and that I don’t look silly by commenting on something that I should have seen.

CHAIRMAN MURPHY: I believe if you have the copy from the last meeting, it’s the same document.

MR. HAYSLIP: I have what I believe to be the last copy, but I cannot confirm that.

CHAIRMAN MURPHY: Okay.

MR. HAYSLIP: I can once I get the copy of this coming to us. I’d like to wait.

CHAIRMAN MURPHY: All right. That’s fine. Yes, sir?

MR. THIBODEAUX: Mike Thibodeaux. On the confined spaces, as an employer rep and for the National Association of Homebuilders, I’ve got a couple of issues with the confined spaces in construction.

CHAIRMAN MURPHY: Michael, if you’d be so kind, could you pull the mike closer? Thank you.

MR. THIBODEAUX: All right. One is can the existing standard, the general standard, be utilized in the construction industry and address the issues for confined spaces. In the homebuilding industry, we have looked at where are there problems with confined spaces as defined in this draft document.

We haven’t been able to come up with any in building the homes, the single family homes. So I guess my question is has OSHA looked at that? Does OSHA have any examples of confined spaces in homes, single family homes, that we could just apply the general industry standard rather than going into these other details.

One other issue, the general contractors in the homebuilding industry hire specialists to build their homes. This proposed draft rule seems to put more of a burden on the general contractor to become an expert in certain areas. When the trade contractor informs the GC of a hazard, then the GC is supposed to be able to notify anyone who may or could go in there about what the hazards are. That’s not an expertise that a lot of the, especially the small contractors, GC’s, and that’s about 90 percent of the homebuilding industry are small businesses. They probably wouldn’t have the expertise for that.

So I guess my bottom line is can the existing general standard address the issues for the homebuilding industry as opposed to applying these draft standards in construction for confined spaces.

MR. STRUDWICK: Because of my familiarity with 1910.146, which is the general industry standard, Michael, when we look back from the construction side, and of course with the underground constructors, we have exposure on a daily basis with manholes and things of that nature. Vaults, manholes, and structures, underground structures.

About the only thing it applies to in a homebuilding type situation would be the crawl space. In other words, the definition is the same. It is a space large enough for someone to enter, not meant for human occupancy for any length of time, and that really attributes itself to maybe the crawlspace basement, something that wasn’t intended to be occupied by a human for any length of time. So it is not a real critical issue as far as homebuilders are concerned. The draft document that I reviewed pretty much parallels the 1910 standard that we’re already accommodating.

So that was when I made my comment about feeling comfortable with the draft document, it was in relation to the original document or the general industry standard document, the 1910 document, that it mirrors pretty closely. There are some new classifications under permit requirements, okay, which we felt like might be confusing. But after looking at it and being more comfortable with it and discussing it a little bit, it helps to identify a continuous type of confined space in a sewer type of entry, those kinds of things.

So from a practical standpoint, we need it, in our opinion, we needed it in the 29 CFR construction standards, as well as in the general industry standards to clarify what the contractor is required to do.

CHAIRMAN MURPHY: Michael, you had some comments now that you have the copy?

MR. HAYSLIP: Yes, sir, I do. On Section 1205, number four, it reads, “Using a properly calibrated direct reading instrument or instruments,” with regard to the air monitor. I would suggest that in addition to properly calibrated, which someone can define by the manufacturer’s recommendations, that there may be some time requirement put in there, so somebody knows.

To say properly calibrated within 48 hours of usage, something to that effect. Anyone that does this work knows that sometimes they need to be current.

MR. WILTSHIRE: Mike, I’d almost go on to say, too, that we should say they are calibrated per the manufacturer’s recommendations. That each unit is somewhat different, and that way we would tie it right back to what they decide should be done.

MR. HAYSLIP: I would agree. The properly calibrated is good and correct, but I think we could offer a little bit more information and guidance to these folks doing this work.

CHAIRMAN MURPHY: Okay. Michael, did you have other comments?

MR. HAYSLIP: I have two more brief ones.

CHAIRMAN MURPHY: Okay.

MR. HAYSLIP: In the definitions under “entry.” It says “Entry occurs when an employee’s body completely crosses.” Arguably, if someone’s head crosses, that may be enough for me. I don’t know if I like the term, “the body completely crosses” as the definition of entry.

Now, what the best offer is, breathing zone, I don’t know. But I wouldn’t want to say entry is the whole body, because someone could certainly stick their head in there, and that’s enough.

MR. STRUDWICK: I think that maybe in 1910 it says any part of the body crossing the plane, then your body has made entry. So that might be something to take a look at.

MR. HAYSLIP: That may be preferable to those writing this.

One more, if I may. Going back to 1205, since CO is a commonly measured gas, maybe it should be specifically mentioned. That’s all I have.

CHAIRMAN MURPHY: If you would be so kind. What was that, 1205 what?

MR. HAYSLIP: (a)(1).

CHAIRMAN MURPHY: (a)(1)?

MR. HAYSLIP: Yes, sir.

CHAIRMAN MURPHY: And your recommendation is to add CO?

MR. HAYSLIP: Yes, sir.

CHAIRMAN MURPHY: Cheryl?

MS. ESTILL: I just have some comments to share. On the issue of the employer, Mike brought up I thought a good issue, and I thought that –- 1204 is the section I’m looking at, that that could be more clearly defined as it relates to construction.

This is an area that is not so easy to just take general industry and relate it to construction. It sounded like for residential, it needed to be written out what exactly are we talking about, who is in charge. I thought it was kind of unclear who would actually be in charge.

Often there is all different mechanisms for hiring different contractors. It leaves it very open. It is required to obtain the information, but only if they get the information are they required to give it out. So maybe it should be much more clearly delineated who is going to be keeping this. Make it somebody’s responsibility, either you have the contractor that says yes it is his, or the host employer says yes it is his, but I thought that was very unclear and easy for problems to happen.

CHAIRMAN MURPHY: Any discussion on that point? Does everyone agree with that?

MS. ESTILL: And then there is also multiple employers that could be in the exact same site. It doesn’t really address the issue of multiple employers. You really have to make somebody be in charge.

CHAIRMAN MURPHY: In other words, you’re asking that we define who is responsible for the confined space on that site?

MS. ESTILL: Right. Come up with a few scenarios and say for this situation, it would be this person. For the residential situation, I would think it would be the contractor and not the owner of the house, or the owner.

CHAIRMAN MURPHY: May I ask a question? What if we have five prime contractors? Who is responsible?

MS. ESTILL: I don’t know the answer.

CHAIRMAN MURPHY: Understood. But I guess I’m looking for a little help in how we would re-word that.

MR. STRUDWICK: The contractor’s employee. In other words, the contractor that had the exposure based on his employee making entry would be the primary responsibility. Then the host contractor would be responsible for making sure that the contractor and the employee of the contractor making entry understood and knew the conditions that they were making their entry into.

So if there were multiple contractors, like in a general contracting situation, you would have say a subcontractor make an entry. If the general contractor knew of the conditions and knew of situations that could occur, it is his responsibility to reflect that information to the contractor, and to the employee of the contractor that is going to make entry. Then the qualified person of that contractor decides whether that space is permit required or non-permit required.

CHAIRMAN MURPHY: But help me understand. You said if the general contractor knew. What if they didn’t? You used the word “host,” and I’m wondering if maybe that would be a good way to define, the host contractor is responsible?

MR. STRUDWICK: No. In fact the host contractor is not. In other words, in 1926.1204(a), it says, “Neither the controlling employer nor the host employer is required to obtain information listed in this paragraph. However, they have and they must provide it if they have it, and must provide it before the contractor first enters the confined space, the contractor for the contractor’s evaluation.”

So it makes the contractor making entry responsible 100 percent for the entry being made by his employer, or his employee, excuse me. That employee is then charged as a qualified person, someone with a contractor, to designate whether it is permit required or non-permit required.

CHAIRMAN MURPHY: Thank you.

Kevin?

MR. BEAUREGARD: I have a comment more than a question. It seems to me that the section under 1926.1204 is probably well intentioned. It is to put the responsibility on the employer whose employees are exposed.

But from an enforcement agency like the State Plan Program, I would find that that whole section in the standard is pretty much unenforceable. It starts out right from the top saying neither the controlling employer nor the host employer is required to do any of the following. But if they have it, then they’re required to do it.

So, I mean, I think it is fine to have in there, but I don’t think that whole section from an enforcement agency, there is much there that we’re going to be doing with that section, because all an employer would have to say is I wasn’t aware there was confined space, and the very first paragraph basically says well, if you’re not aware, you don’t have to do anything.

CHAIRMAN MURPHY: Linwood?

MR. SMITH: Linwood Smith. From an AGC perspective, the comments that we receive back, and this is just more or less comments and no questions, I don’t think. But we did a lot of looking at the general industry standard, as opposed to the new standard that’s proposed.

Our people feel like they’ve invested a lot of time, effort, money, and resources into complying with the 1910 standard. They feel they are very comfortable with the enforcement of that standard, and they feel like the enforcement of that standard in compliance with that standard keeps them from having people in hazardous conditions, and people from getting hurt.

So they really see the new standard as a burden. We heard a lot of discussion on if the 1910 standard were enforced properly in construction, and we never totally understood that I don’t think, but we got years, and I’m very familiar with the confined space standard, 1910 standard, and our association is. We’ve got years invested in complying with it. To come out with a new standard now and to start all over, we feel creates a new burden on general contractors.

CHAIRMAN MURPHY: Comments or discussion on that point?

MR. SCHNEIDER: Yes. I think I raised this at the last meeting. A couple of questions. In 1926.1209(a)(2), this is on page eight, it talked about posting warning signs. There is no requirement that these signs be posted in language other than English.

I know in other standards, like in the asbestos standard, they require that they be posted. This is basically a warning sign for the public. We also have a lot of non-English speaking workers as well. So it seems like there should be some requirement that it be posted in a language that is understandable to the majority of the workforce, or to most of the people that are working in that area at least. So that’s the first thing.

CHAIRMAN MURPHY: May I make a suggestion, Scott, that maybe we look at symbols rather than trying to make 52 different kinds of signs with the red circle with the line through it.

MR. SCHNEIDER: Right. I think that’s a good suggestion. The second thing I was wondering, in 1926.1216, which I think, it was on page 19. Yes. We talk about these controlled atmosphere confined spaces which require some sort of ongoing ventilation. I think we talked about this in the last meeting about whether or not some sort of backup or power source is required.

I think the comment was made at the last meeting, well, if it fails, then people are going to get out right away and will have time to get out. I just don’t know how much time people will have, or how quickly those things can cause a hazard and be problematic. I think it’s something we need to consider at least.

Then the third question I had was on 1926.1218. At the end of the standard, we talk about making records available. It says they have to be retained and made available upon request to the Secretary. In many of these similar standards, I know that there are also requirements to make them available to authorized employee representatives. I think that would be an improvement also.

CHAIRMAN MURPHY: Thank you, Scott.

Comments? Discussion?

Michael?

MR. HAYSLIP: Briefly. I don’t disagree with Mr. Smith’s comments that it could be unfortunate to train in confined space in two different standards, to pick out which is which. I like this one. This one I think is good.

Is there a way to share this with those that may have influence over the 1910.146, that they could pick up some of the good points here to make theirs meet this?

MS. SHORTALL: Anything can be shared with the Agency. I’m certain Bruce would make sure that the general industry sections are aware. That, however, would require that the confined spaces rule go back through formal rulemaking to make those changes. They would be something more than technical, they would be substantive in nature.

In and of itself, that can be a pretty long process. Right now, revising the confined spaces in general industry is not on the regulatory agenda.

MR. HAYSLIP: Hearing your comments, may I retract my previous statement on the record.

MS. SHORTALL: I mean, it certainly can be a recommendation to the Agency. Whether something would occur immediately, you know, is quite another question. Whatever does occur would have to go through rulemaking.

MR. HAYSLIP: I understand. I do not intend to make that recommendation.

MR. STRUDWICK: No, but I think you hit on something, Mike, when you talked about the comparisons and/or the differences in the two. We do expose ourselves to the general industry entry in existing structures. Then you apply the construction standard to the new construction, and there may be a little confusion.

So we may be able to do this internally. I would be happy to donate George Kennedy’s time -- of NUCA -- to go ahead and see if we can’t identify the differences or the similarities just for our own benefit. That way, we could create a document that said okay, this is what is different here versus here. We did have that overview, but in another document, in a different document than that.

CHAIRMAN MURPHY: Linwood?

MR. SMITH: They are making some good points, but we personally, the company I work for, has a utility division, and also has a general building division. The question arises, and Mike’s comments were real good, but the question arises, if we are working on a plant site, say we are working at a water treatment plant, wastewater treatment plant, or millions of other situations, do we follow the general industry standard? Do we follow the construction standard? Do we follow both? That’s where a real rut comes in with us.

CHAIRMAN MURPHY: Scott?

MR. SCHNEIDER: I had another question. Maybe Greg or some of the utility folks can answer. There is an exclusion here in 1926.1202(b)(2) for non-sewer construction covered by the excavation standard. So the implication to me is are we saying here that if you have an excavation, it cannot be a confined space unless you are doing sewer work? Or are we just saying that all this stuff here is sufficiently covered by the excavation standard, and do we agree with that? I’m not sure. So I would defer to the folks like Greg that do utility work and do a lot of trenching.

CHAIRMAN MURPHY: Greg? Linwood?

MR. SMITH: I was going to ask if someone could respond to my question. I would appreciate it about which standard applies. It looks to me like both apply.

MR. STRUDWICK: Well, in our opinion, both do apply. In other words, if you have a general industry entry, in other words, existing structure, 1910.146 is what you’re obligated to follow.

We didn’t see a lot of difference, other than the different classifications for the same type of entry in new construction, continuous confined space entry. We didn’t see a lot of difference, other than in the identification of that specific type of entry.

So I think we follow both. But I’m inclined to believe the same way you are. When we were first told that they were going to come out with a confined space entry program for construction, it would mirror 1910.146 almost exactly. This one doesn’t to a great degree, but it does in the intent of the content. It just adds a few more classifications basically.

Where it does in the 1910.146 require that the host employer makes sure that the information is handed down, in the case where Kevin was talking about, information attributed to the confined space or the entry being made, this one makes it not mandatory, okay?

So I can see some of those problems that you are referring to, because we are very comfortable with 1910.146, and this is going to take a little getting used to, basically. We have two different types of entries. We have the general industry entry, and we have a construction entry.

MR. SMITH: Sure.

MS. ESTILL: I had a couple other comments if we’re done talking about that. I thought that there should be like a tag system or some sort of system to know who is actually in the confined space. This is under 1211 PRCS during entry, way down at the attendant duties.

It seems like there should be some sort of system so that you know who is actually in the, it is (f) number (1). So the attendant continuously maintains accountability of authorized entrants who are in the PRCS, but it doesn’t really specify how that is done, or that it needs to be done in a systematic manner.

Another thing is under 1211, I thought the attendant should only switch places in a face to face contact. This leaves it open for radio just to say hey, I’m leaving without somebody actually being right there. I thought I should write in there that it should be face to face.

CHAIRMAN MURPHY: Which one was that?

MS. ESTILL: That is 1211, 1926.1211. Let’s see. So it does say properly relieved. But somewhere I thought it said something about they could use radio control radio to tell them they are leaving the situation. Maybe just something to look at and make sure that’s in there somewhere.

CHAIRMAN MURPHY: Are you talking about (f)(5)?

MR. STRUDWICK: Cheryl, if you go to 1210 where it refers to preparing for entry, 1926.1210, it talks about the entry permit. I just noticed that in the copies that were made for us, there is a page missing in the back, page 31 that is the sample face cover of the permit which defines the supervisor, the attendant, and the entrants. So the attendant themselves has the permit in hand on a clipboard.

MS. ESTILL: Okay.

MR. STRUDWICK: And that defines who is going in, while they are in there, and what the process is for closing the permit, which would be the employee leaving, and the attendant is required to check it all off and then sign off on it. The supervisor, too.

MS. ESTILL: Okay. Is there something in here that says that the attendant should be face to face when they are switching attendants? I guess that was the second comment that I thought that that was a possible problem.

MR. STRUDWICK: On the back of that permit in number 10, it says, “Name of attendant,” and then, “must maintain visual and voice contact with personnel in space.” It is on the permit. So when they come out, they have the name of the employee that was authorized to enter, and then they have the special instructions, and then the qualified person.

MS. ESTILL: So does this mean visual and voice contact?

MR. STRUDWICK: “Must maintain visual/voice contact.”

MS. ESTILL: Okay. Yeah, I’m okay with that. The last thing was for the controlled atmosphere. I didn’t see anything that said specifically the equipment that controlled the atmosphere need to be, that works in good condition, that it was checked out, calibrated, you know, all of that.

CHAIRMAN MURPHY: To the earlier comment, though, I thought we talked about within a certain time frame, right?

MR. HAYSLIP: We discussed it. The question is what?

CHAIRMAN MURPHY: The question is the time frame. Does that alleviate or take care of the comment that we were going to put for the equipment, a time frame that it would be calibrated, correct?

MR. HAYSLIP: We discussed the calibration of the unit that is done within a certain time frame. Does it address specifically what?

MS. ESTILL: The controlled atmosphere situation. That’s what you were talking about.

MR. HAYSLIP: No, no.

MS. ESTILL: Calibrating the equipment for the controlled atmosphere.

MR. HAYSLIP: Well, perhaps. My comment addressed when you are going to air test, make sure you have an updated, good functioning monitor, regardless of what the space is.

MS. ESTILL: So there is kind of two issues. There is the testing issue, and then the equipment that actually controls the atmosphere for a controlled atmosphere.

MR. HAYSLIP: Yes, two issues.

MS. ESTILL: That is in proper condition. It doesn’t specifically say that. It says it has to exist.

MR. STRUDWICK: I think, Cheryl, if you go further down in 1926.1210 to (j), Equipment, it relates to some of that, the questions that you’re asking.

MS. ESTILL: Right.

MR. STRUDWICK: The employer must provide and ensure the use of the following.

MS. ESTILL: Right. Okay. And so my comment is that rather just having exist, it should say something like effective and operable communication equipment. Adequate forced air, mechanical ventilation equipment. Just some wording like that to say that it is working and in good condition.

MR. STRUDWICK: Correct.

MS. ESTILL: And then my last comment that we’ve already touched on is the training, the signage and everything should be in a system that is understandable to the employees, whether it is symbols. The training, I’m not sure if we want to talk about whether there should be some sort of, as part of the training, to test the people to make sure that they understood what they were training.

CHAIRMAN MURPHY: Any other comments or discussion on the draft?

Yes, Linwood?

MR. SMITH: One other comment on the same point. I hate to keep beating this horse, but back to my original scenario.

If you as a general contractor, we could be out working at a water treatment or wastewater treatment plant facility doing an expansion. If we voluntarily on our own decide just to comply with the general industry standard and you’ve got a construction standard that comes into effect and it’s different, then when OSHA comes out, I get cited for not complying with the construction standard, what kind of violation do I have? Do I have a de minimis? A non-serious? A serious?

I’m firmly convinced that in general industry, the hazards are just as great at a minimum as what we’ve got in construction. Confined space hazards in general industry are a lot more of a daily occurrence than they are for us as contractors, unless you’re a very specific, specialized-type contractor.

So the question is if this standard is better, and the general industry standard is not sufficient, even for general industry, in my belief, because I think their hazards are pretty severe also. Just like I say, to make the point one more time, just as severe as what ours are, if not more so.

So I still have heard a lot of discussion, but I still don’t see why we are writing a new standard when we’ve already got a standard.

CHAIRMAN MURPHY: I think the recommendation to the agency, there has been a lot of discussion, a lot of comment. We have a few minutes this afternoon to revisit this topic.

What I would like to do is ask you to write down your comments and concerns and get them to me before this afternoon, and we’ll make sure that we inform the agency of those comments, along with the draft. In my estimation, and hopefully you all agree, that there would be quite a number of changes to this draft proposal before we want to make recommendations that we accept it. Does that make sense to everyone?

Yes, Mike?

MR. HAYSLIP: If you’re asking, I’m prepared to go ahead and approve it, personally.

CHAIRMAN MURPHY: I would like to wait until this afternoon and get comments and let people think a little bit about what they’ve said here today and get those to me. Then we’ll make a recommendation this afternoon one way or the other.

MR. SCHNEIDER: I had two questions. One of them is I got the impression from the agenda that this was scheduled for publication in March. Is that correct? Or is that now pushed off?

MR. SWANSON: You are absolutely correct. It is scheduled, according to the reg agenda, for publication in March.

MR. SCHNEIDER: And is that time table still being adhered to? Or we don’t know?

MR. SWANSON: I think it’s probably very unlikely that this will be published in March. But according to the reg agenda, this is scheduled for publication in March.

MR. SCHNEIDER: The second question is on the hex chrome rule that we reviewed last year, we also got to look at the reg analysis a little bit. Is that going to be made available to the committee as well for this standard?

MR. SWANSON: I do not believe so, no.

MR. SCHNEIDER: Why, or why not?

MR. SWANSON: What the agency is asking the advisory committee is for your comments, your feedback on a proposed standard. We gave you a draft of a proposed standard to take a look at and give us your feedback.

I guess I don’t understand your question, Scott. Are you saying that you can’t give us feedback without seeing the economic analysis, or the reg analysis?

MR. SCHNEIDER: No, I didn’t say that. What I thought was that since the standards come before this committee, we might also be able to give you input or feedback into the economic analysis, or regulatory analysis which sometimes can use or benefit from industry input.

CHAIRMAN MURPHY: So once again, if you would be so kind to give me your comments for this afternoon. What we would like to do now is give the next gentlemen that are going to present the opportunity to set up their equipment.

We’ll take a 10-minute break and be back in the room. We’ll let them set up. The comments to me, if you would be so kind, by about 12:30. Thank you.

(Whereupon, there was a brief recess.)

CHAIRMAN MURPHY: The next thing on the agenda is Steel Coalition. I would like to introduce Mr. Pat Bush. He will introduce the other speakers that are going to present to us here this morning.

Mr. Bush?

PRESENTATION OF THE STEEL COALITION

MR. BUSH: Thank you, sir. Thank you for inviting us here today. Each of you have a copy of our handout which includes most of our presentation today. We have added some PowerPoint to better explain some of the aspects of our research and how we got to where we are today. But nearly everything is in your handout.

Also in your handout is our jointly signed letter, jointly signed with the iron workers to OSHA recommending the voluntary lubricant compliance program, which is what we’re going to speak to you today about. Then in the back of the handout is a copy of the final report of our lubrication research, which Dr. Shoemaker here to my right is going to be covering in his presentation. His PowerPoint presentation basically is a summarization of what is included in that final report.

I would like to formally introduce the Steel Coalition representatives that are here with us today. To my right is Dr. Lee Shoemaker. He is the Director of Research and Engineering for the Metal Building Manufacturers Association. He is also technical liaison to the Steel Coalition. Lee will present you with the scope and the results of the Coalition’s lubricant study.

Also with us today is Robert Paul of Epic Metals in Pittsburgh. Robert is here representing the Steel Deck Institute. Robert is back there behind the pillar. I can’t see him from here.

Our purpose here today is to acquaint you with the OSHA Steel Coalition’s work related to Subpart R of the Slip and Fall Regulations. This work led up to a proposal of voluntary lubricant compliance programs for metal roofing and decking used in construction. It has been jointly recommended to OSHA by the coalition and the iron workers.

The membership of the Steel Coalition is as you can see it here. These associations, the American Iron and Steel Institute, the Metal Building Manufacturers Association, Metal Construction Association, National Coil Coating Association, Steel Deck Institute, and Steel Deck Joist Institute are all associations who have guided and funded this effort since we began in 1996.

The purpose of the Steel Coalition is relatively simple. It has not turned out to be that way. First of all, our primary concern is worker safety at construction job sites. That is what we have been about since day one. Since we were organized, we have worked very, very closely with SENRAC and OSHA by having joint meetings to review our progress that we’ve made up to that point in time, to share our ideas, our mutual ideas, and to plot our mutual course ahead. And believe you me, I’ve been involved in this project since day one, back in 1996. I can honestly say that all the parties involved, both the Steel Coalition, members of SENRAC and ourselves, have learned a lot about each other, and a lot about what we do.

A brief history. We were formed in 1996. Right soon after SENRAC was developed for the Slip and Fall regulations, we formed our group and began work. The first thing we did was we defined the issues and the environment affecting the safety on the job site related to the products that we make. In this particular subject, it is steel decking and steel roofing.

We formulated a plan to further explore remedial opportunities that were within our control. In other words, related to the application and manufacture of our product. We followed the plan and ultimately reached the point where we are today.

Immediately after our formation, we contracted with Sotter Engineering Company out of Mission Viejo, California to help us to find the nature and the scope of the issues for steel roofing and decking product. Dr. Sotter is an aerospace engineer. He performed his research, and his research for the coalition was validated by Dr. J. Michael McCarthy, who is a Professor at the University of California at Irvine.

We selected Dr. Sotter by posting an RFP on the web and in other places, asking for people to make us a proposal on this research that I just described to you. We received several applicants. We reviewed those applicants. We narrowed it down to I think three or four finalists, interviewed them, and selected Dr. Sotter.

Dr. Sotter visited 33 construction sites involving different climates and locations. He interviewed workers regarding the slippery conditions they encountered on the job site. He observed working conditions and practices, and documented his finding in a final report for the Coalition which was submitted and reviewed with OSHA. We, along with SENRAC, determined from his research specific avenues that we would pursue.

The diagram that you see here is not in your handout. We put this in here to describe and give you an idea of the different routes that we followed, and basically how we ended up to where we are today. You can see from Dr. Sotter’s research, we sat down with OSHA and the iron workers and other members of SENRAC and developed basically the six avenues, if you will, of research and work related to what was found in Dr. Sotter’s report.

We set a game plan, we established a means of doing further research. The iron workers took up the issues related to training and footwear for iron workers, which was totally appropriate. The primary avenues that we needed to do a lot of work on was in the development of a primary test method for both co-efficient or friction testing equipment, and also related to lubricants on the products that we make.

The Steel Coalition focused on the industries related to the performance of our products, the things that we could control. The iron workers took on tasks related, as I said, related to footwear and training.

Slip testing equipment and minimum co-efficient of friction were parts of the proposed Slip and Fall regulations, and we performed research as to the accuracy of the testing equipment that was involved in establishing those co-efficiencies of friction. This work still continues today. The ASTM F-13 committee is actively involved in this today. We remain involved in that process as the Steel Coalition. We have a consultant that we retained. He attends the meetings and participates in their various workshops and that type of thing. So we are still involved in that activity.

A delegation from the Coalition visited several testing agencies in Europe. Each one of these agencies have earned a reputation for leadership in traction testing research. We tested control samples using their equipment and their methods by samples that we sent to Europe, and then our team tested samples of roofing and decking products using their equipment and their procedures, and correlated that to the OSHA recommended test equipment.

The conclusion was that while all of these instruments that we looked at, and all the test procedures that we reviewed measure co-efficients of frictions, we found that there was no test procedure or instrument that accurately correlates to the actual human walking and working condition. F-13 and ASTM is busily about attempting to do that today.

Lubricant research. Just to frame what Lee is going to be talking to you about now, it became clear to SENRAC and also to the Steel Coalition that the elimination of lubricants used in the manufacture and corrosion protection of roofing and decking presented the best opportunity to dramatically improve the walkability of our product.

The Coalition and SENRAC members toured construction sites, we toured steel mills, we toured roofing and decking manufacturer facilities. We also toured coil coaters that applied paint to some roofing, and also decking product. We all did that to gain firsthand knowledge about the construction environment and the manufacturing processes of roofing and decking.

Obviously representatives from SENRAC, the iron workers, the steel workers, and the other people involved in that organization were very, very familiar about the environment of the construction site. We were very, very familiar with the environment and why we did what we did in the production of roofing and decking, but we weren’t necessarily really familiar with each other’s environment. So this was very, very helpful to us.

Now Dr. Shoemaker will present you an overview of our lubricant research and the conclusions of the proposed lubricant compliance program.

Lee?

DR. SHOEMAKER: Okay. Thank you. Good morning. My job here this morning is to review the lubricant research that led to the recommendations made in the voluntary compliance program. This represents just one box of that flow chart that was up on the screen a little while ago, but it is where we really felt that an impact could be made in terms of worker safety. That’s where after we looked at all of those options on the flow chart, we concentrated our efforts.

The handout that you have in front of you, the third tab there that says “Lubricant Research Report,” that is what I’m going to be going through a few slides and sort of hitting the highlights of what was involved in the research program that led up to the recommendations.

Page 20, 21, and 22 have the specific recommendations that came out of this program. As we got into this, we divided the program up into six tasks. The first was to do an evaporation study to learn more about the characteristics of the various lubricants that were used in the industry.

We first did a survey and found out we had 19 different lubricants that were reported to us in the survey that we looked at in this study. We did a roll former survey. We surveyed the roll formers who produce decking and roofing products to find out their practices with regard to lubricants and storage of coils.

We did formidability tests to determine how well these lubricants could do their job in terms of enabling the formidability process, taking a coil of steel, forming it into these products, and making sure that there wasn’t any pick up or galling of the coating that was on the steel, whether it be galvanized or Galvalume or a paint coating.

Then we ran some forced air tests in the plant, because one of the findings of the evaporation study was that the evaporation could be improved by blowing air over the products as they are produced. We did wet storage tests to find out how effectively these different lubricants could provide corrosion protection.

That’s the other factor that’s involved with this. Not only a lubricant that can be used to roll form the products, but a lot of times these are also used to provide corrosion protection. So we looked at those tests.

Then after we had the recommendations of the task group, we took 18 months and let the members of the Steel Deck Institute, the Metal Building Manufacturers Association, and the Metal Construction Association go through and evaluate these recommendations in their plants to see if they seemed to work, if they were appropriate and produced products that were in fact free of the lubricants.

Now, the evaporation study really was the key to the whole thing, because when we got into this project, we realized that a lot of people referred to these lubricants as vanishing oils. What we heard from our study in the field survey and workers in the field and so forth was that some of these lubricants were not evaporating totally.

So we wanted to evaluate the evaporation characteristics of the various lubricants. As I mentioned, we identified 19 different products, and then we ran tests to determine how quickly they evaporate. We had a researcher, Bill Sunderman, do this work for us. He evaluated the evaporation rates and looked at the properties of the residue that was left after the evaporation process.

Then we also looked at whether or not the residue that might be there could be reactivated if it was exposed to water. We had heard just anecdotal comments from people that when it would rain or when there would be dew on a roof or a deck, that it would become more slippery, like it would reactivate some of the oils that might be present in the residue, so we looked at that. Then we wanted to try to group the lubricants into families that would help identify similar characteristics and help people select appropriate lubricants.

This shows just a typical evaporation curve from one of the tests that were done. You basically take a sample, put lubricant on it, and under a given temperature and humidity that is being evaluated, and an air flow over the sample, it is weighed over time to see how much residue is left as the evaporation process works.

This shows as the weight of the sample drops off because of the evaporation process, and we looked at how quickly this occurred with all of the various lubricants.

After we did this study, we were able to group the lubricants into five different classes, which we referred to throughout the study from this point on, Group A were what you could probably call vanishing oils. They were products that truly did 100 percent vanish. They were 100 percent volatile solvents, and they would in fact evaporate in a fairly short amount of time.

Group B lubricants were lubricants that also had a very high volatile solvent content, 95 to 99 percent, and effectively the panels were free of residue and acceptable for a walking surface. Group C were products that had less than 95 percent volatile solvents. They really were a different type of lubricant. They were formulated to actually leave a residue on the product to prevent corrosion.

So this would not be a product that you’d want to use as a vanishing rule. It can be used as a corrosion inhibitor if it is applied in the proper way, but it is one that would not evaporate as Group A and B products would.

Group D was a water soluble product. It had no oils in it, it was sort of a different type of lubricant that we wanted to evaluate. Group E was a product that was an emulsion of oil and water. So D and E were sort of kind of unique, and we wanted to look at those and see how they would compare.

Now, the survey that we did of the roll formers provided a lot of useful information about their current ordering practices. When they order the coils from the steel mills, how they order them. Do they order them dry? Do they order them with some lubrication on them? So that was important to know. And then how those coils did in storage. Because if they are ordered dry without any corrosion inhibitor on them, without any of that Group C type oil applied to them, do they in fact perform sufficiently in terms of the length of time that they’re in storage, is there any staining or corrosion on the steel that would be a problem for the manufacturer? This survey did provide encouraging results and gave us baseline data for those manufacturers that order coils dry.

The next thing we did was to evaluate the formidability properties of these various lubricants. We took a subset of the various lubricants from the classifications there. We applied them to both galvanized and Galvalume steel. You are probably familiar with galvanized steel, that term. Galvalume steel was a similar metallic coating, except it is a zinc/aluminum coating rather than just pure zinc. It is a widely used material.

So we looked at the effect of these lubricants on the formidability and whether there would be any pick up, or if the coating would come off on the rolls as it goes through the roll former, which would be unacceptable.

This was a small scale test. It was a formidability machine that one of the members of the Coalition had and provided for the study. You can see here just what is involved with that. It just takes a small sheet of steel, runs it through the rollers, forms it into a profile, and you can evaluate how well the lubricants in fact help in this process.

The next thing we evaluated before we came up with our final recommendations was the forced air test. We found when we did the evaporation studies that the air flow over the sample could substantially affect the evaporation rate.

So we wanted to see if that would be practical in a plant situation. We took just some regular fans and went to a roll former, part of the Coalition who volunteered their plant for this part of the program, and mounted the fan on a forklift and just put it over top of the roll forming line to see if it could effectively help to evaporate the lubricant that was used as the material passed through it rather quickly.

We found that the evaporation could be increased for the Group B lubricants. Those are the ones that were 95 to 99 percent volatile solvents. This would be up to the manufacturer to perhaps use this, or use a similar method if they felt that would help them obtain good results in their particular plant situation.

We evaluated the wet storage tests. As I mentioned, these lubricants are not only used for roll forming, but used for corrosion protection. So we took a test that takes a stack of samples that are coated with the lubricant of interest, it is put in an environmental chamber at 100 degrees Fahrenheit, 100 percent relative humidity, and it is checked periodically over 12 weeks. Every week the sample was taken out and the percent of the sample in terms of the corrosion was noted. This provided information with regard to how effective these products were in terms of the corrosion protection, and if we made any recommendations that might affect that.

Now, as I mentioned on page 20, 21, and 22 of that report, it gives you the specific recommendations for roll forming lubricants. They are divided into two halves. The metal roofing panels and decking panels. The Subpart R actually refers to just decking when it talks about walking surfaces and so forth which covers both roofing products and decking products.

As we got into this, we realized that there were distinct differences between these products in terms of their use in a construction project, the types of coatings that are used, the types of profiles, how hard it is to form the roofing products, particularly if they have smaller radiuses in the profile. It takes more work in terms of the roll formers to get it into that shape. So there were some significant differences.

So we split up the recommendations into the metal roofing panels and the decking products. We talk about several different options that could be used with each of those products that would result in a final product that was essentially free of lubricants. In some cases where you might have to use a product that was not from the Group A or Group B, then that product had to be closely labeled in terms of the potential for that to have some residue on it that should be noted for workers.

With that, I will turn it back over to Pat. He is just going to just kind of summarize the proposal.

MR. BUSH: The slide that Dr. Shoemaker has before you, and it is in your handout, the VLCP proposal, is the essence of our proposal to OSHA.

We are committing to use no, or at least only highly evaporative lubricants, in other words, true vanishing oil, in the production of roofing and decking. In some cases, the formation of the roofing and decking product will require the use of non-evaporative lubricant.

In those cases, the member companies of the Coalition will then apply warning labels to their products in order to alert the construction worker that these products may be slippery. Although the Coalition members comprise a very large percentage of the manufacturers of steel roofing and decking, we have committed to inform non-member companies, the VLCP requirements via several avenues, including the web, product manuals, trade publications, mailings, and other avenues that we have at our disposal.

In fact, we have already notified as many as we are aware of the proposed VLCP, the research behind it, and the need for them to review their raw material ordering practices, and also their manufacturing processes.

What we need from your organization. As it says here, we would appreciate your endorsement of OSHA of our VLCP proposal. We thank you for the opportunity to talk to you today and describe what we have been doing and what our proposal is about, and the background behind it.

I’d be happy to try to answer any questions you may have.

CHAIRMAN MURPHY: Michael?

MR. HAYSLIP: I see in your packet there is a September 21, 2004 letter to Mr. Henshaw.

MR. BUSH: Yes.

MR. HAYSLIP: What was the response, if any, due to that letter?

MR. BUSH: The June 14, 2004, basically from that letter, and quite frankly, I don’t remember the reply, okay? But what we did is as a result of writing this letter and subsequent conversation with OSHA, we made the VLCP proposal that we did. So you see the date of the VLCP proposal is September 21st, 2004. We wrote the letter and basically described the voluntary compliance, and then we made the proposal the following September. So we were encouraged to do that.

MR. HAYSLIP: Restate that. You were encouraged to do what?

MR. BUSH: I don’t think we got a formal reply, other than verbal conversations.

MR. SWANSON: Would you like me to take a shot at that?

MR. BUSH: I think that would be great.

MR. SWANSON: All right. I believe the gentleman is correct. He did not receive a formal response. We had the letter, it was hand delivered. There was an oral presentation of the essence of this report at the same time. The Assistant Secretary said he would take the issue under advisement, and he never formally responded before he departed the building, as it were.

MR. BUSH: Better said.

CHAIRMAN MURPHY: I would like to encourage everyone, if you go to the first tab in the book that was handed out, it is somewhat difficult, at least for a guy my age, to read that screen. What these gentlemen are asking of us is clearly identified on the last page of the first tab in the materials that they provided.

Scott?

MR. SCHNEIDER: Obviously we need some time to look these materials over. We just got them this morning, and it’s hard to comment on them.

I guess the essence of this is what you’re saying is that OSHA was intending to regulate slip resistance on steel, and you are saying it’s not necessary now because you have this voluntary program.

I guess the question that always comes up is if we have lots of voluntary programs that exist, it is questionable how effective they are, because there is always going to be some people that don’t comply with it. In that case, a standard can be very useful in trying to require or force compliance for those that are reluctant.

I guess it is kind of hard to judge whether compliance with this voluntary program will be sufficient in advance. So I’m not sure exactly –- if you believe that everybody is going to comply with this voluntary program, then the costs of regulation would be minimal, because people would already be complying with it, right?

MR. BUSH: That’s correct. And our association members, the Coalition members, represent a very, very large percentage of their respective industries. So there are always companies out there that don’t belong to one of our constituents.

That is why we’ve taken it upon ourselves to go out and notify them of what we’re doing and bring them up to speed on the research and ask them to take remedial action in their processes so that they are in compliance.

What we’ve told OSHA is that after this matter is settled, then within 90 days of that, all of our member operations would be in compliance, and we would continue on our efforts to notify non-member companies of what is going on.

MR. SCHNEIDER: This is not on OSHA’s reg agenda right now, is it? Or I don’t know.

MR. SWANSON: This is not on OSHA’s reg agenda.

MR. SHOEMAKER: Could I follow up just with one comment on that question? Just to make it clear, there are two provisions in Subpart R1 dealing with skeletal structural steel and the slip resistance of those. Then there was a provision on decking.

This voluntary program only applies to the decking. That is what this 754(c)(2) refers to. It is currently reserved in Subpart R with respect to decking, while this program progressed to determine what advice back to SENRAC.

So the structural steel is still in there, and there is a requirement for testing structural steel, and there are some problems with the tester. There was a window of opportunity given to comply with that which hasn’t been reached yet. So that’s another issue. This is strictly dealing with the decking they were talking about here.

CHAIRMAN MURPHY: Linwood, you had a comment?

MR. SMITH: Yes, sir. I commend the industry and the gentlemen here today for their efforts, and for what they’ve done. It is a long ways ahead of doing nothing, it is pretty close to perfect, the numbers they are giving us. Hopefully they can encourage other people to participate.

I’m making one assumption. That is that if we endorse this, that in the future, it is still going to be placed on the regulatory agenda, and it could be changed at some point. But this is a voluntary compliance thing. I think they’ve already done the homework on this, the details. I certainly support it.

CHAIRMAN MURPHY: If I may make a suggestion with your help, all of you. That we take this information, we take the opportunity to review it with the groups that you represent, and at our next meeting, we discuss this and then make our recommendation to the agency.

MR. BEAUREGARD: I had one question for the reps. I just want to make sure I’m clear. Are you indicating that your proposal is if federal OSHA agrees not to put a standard in that reserve section, that your group will agree to do the voluntary program? I’m not sure I’m clear on what you’re asking for.

MR. BUSH: That’s correct.

MR. BEAUREGARD: So you would be looking for something in writing from federal OSHA prior to instituting that?

MR. BUSH: That’s correct.

MR. BEAUREGARD: Okay. Thank you.

CHAIRMAN MURPHY: Greg?

MR. STRUDWICK: Clarification. I think Bruce can answer this. When you remove the reserve section, that reserve section was obviously placed there for a reason. Does that have any type of legal bearing one way or the other? Is it an amendment to the standard? What is that? Could you explain that?

MR. SWANSON: Maybe I should turn this over to Sarah, but let me take a shot at it first. It is my belief that Mr. Smith is absolutely correct.

What the agency is being asked to do is to delete a reserved provision of Subpart R. It was reserved half a dozen years ago when Subpart R was promulgated, because at the time, the stated knowledge was not such that we knew exactly how we would regulate it if we desired to regulate it.

So the industry itself undertook with both sides of industry, at least two sides of industry if not more, to look at the issue and get back to us with the report. This is the essence of their years of study. They have come back to us and said, this is what we’d like to do, this is how the industry would like to voluntarily deal with it. We would ask you to strike the reserve clause, reserve provision from the standard.

We could at any time. There would not be an agreement that we would not come back, Kevin, at some later date and say, this is not working, this has to be regulated, and technology/science has gotten to the point where we can do something, and do it more meaningfully than this. We could jump back in.

But striking a reserve provision at this time would send a signal that it is not the Agency’s intention that in the immediate future promulgate a standard regulating this. Corrections, additions, deletions?

Ms. Shortall?

MS. SHORTALL: I think, Bruce, you characterized it quite accurately. There is a reference in the material that we were given that the Coalition seems to believe that deleting the reserved paragraph from the standard would be only a technical change.

Although in many cases we have done that as part of our standards improvement process, and in many cases it is viewed as a technical change, I think we would have to look back to our preamble to our final rule on steel erection to understand what the agency said at that point about the reservation to understand whether this would be considered only a technical change, or something that would require a little bit more.

MR. SMITH: I believe we asked for comments awhile back, Bruce, on slips and falls and trips. Do you remember any of those comments and how it would apply to this?

MR. SWANSON: The simple answer is no, I do not. I’m not sure what you’re referring to.

MR. SMITH: The Federal Register notice that went out several months ago.

MR. SWANSON: On slips, trips, falls?

MS. SHORTALL: That was for the general industry standard, Subparts D and I, walking on working surfaces and fall protection. That was Subpart D of 1910, not 1926.

MR. SMITH: Okay.

CHAIRMAN MURPHY: Scott?

MR. SCHNEIDER: I’m assuming the Coalition is going to continue to do this and implement this program regardless of what OSHA does, right?

MR. BUSH: Implementation has already begun.

MR. SCHNEIDER: I’m a little confused. I mean, this committee doesn’t have to do anything for that process to go forward. Whether or not OSHA deletes this reserve paragraph is, I don’t know, maybe it sends a signal, but it certainly doesn’t preclude any future action on OSHA’s part.

It seems to me it is almost a moot point. I mean, I personally commend you for what you’re doing. I think it’s good, and I think it will lead to improvements. I can’t make a decision as to whether or not OSHA needs further action or not on this issue until, for example, we see how the implementation goes and how widespread compliance is. It seems to me that’s up in the air right now. But I commend you for what you’re doing.

MR. SWANSON: Well, it was not the Steel Coalition’s idea to come before ACCSH. It was OSHA’s kind invitation that they come and chat with you folks. We have heard from them, we have heard from the signatories to the letter. We have both management and labor.

We don’t know of any naysayers out there is the construction industry that would say this is not something that the Department of Labor ought to go forward with. That’s why we asked these people if they would take the time and the trouble to come to this group, make their presentation, and we are relying on you for feedback.

If there are naysayers out there, you folks are more likely to know them than we are. Please share that input with us. Absent that, and absent being able to identify any negative comments, it is at least possible that we are going to do as these gentleman asked the last Assistant Secretary to do.

MS. SHORTALL: I have a question that I would like to ask. Since your presentation said the Coalition remains actively involved the continued research by the ASTM F-13 committee, could you tell us what is currently happening with regard to the two ASTM standards? The 1677 and the 1679, if you happen to know?

MR. SHOEMAKER: I can give you the last I heard. I am not the one who has been attending the F-13 committee from our coalition. Those two standards were being closely evaluated in terms of the reproducibility of the results from those testers. After a lot of study by F-13, I believe, and Bob Paul could maybe know more about this, that the last I heard was ASTM is planning to retract those standards in the next month. So they pretty much determined that those standards will not go forward from a certain date.

They are concentrating more on putting out standards that would tell you how to evaluate a tester, rather than a standard that says how to use a specific tester.

MR. BUSH: In looking at our consultant’s latest report, who is our representative on F-13, he states that F1677 and F1678 were scheduled to be withdrawn due to age and inactivity. In other words, there had been no updates to the specifications, and that kind of thing. That is as part of the ASTM procedure on how they worked.

He also mentions the current standard is--

MS. SHORTALL: Excuse me. Did you say 1677 and 1678?

MR. BUSH: Yes, ma’am.

MS. SHORTALL: Or 1679?

MR. BUSH: 1679 I’m coming to.

MS. SHORTALL: Excuse me.

MR. BUSH: The current standard is F1679. They are doing research on that particular standard right now, and they’re going to have a June meeting regarding that. So it is active. But it would appear from this that 1677 and 1678 in ASTM are going to go away.

CHAIRMAN MURPHY: Linwood?

MR. SMITH: One other comment. If we don’t approve this, we are going to have the word reserved that we’re going to deal with for years, and nothing is going to change. There are going to be no improvements.

If we do deal with this, and we do endorse it as they have asked, or OSHA approves it, but if OSHA approves this, then the industry is going to certainly be helped. Now, whether we’re going to have full compliance or not may be an issue.

But due to the fact of the help this is going to bring to what is admittedly a problem in the research they’ve done and development, in the future we can change things. If it is appropriate, Mr. Chairman, I’d like to recommend that ACCSH go on record as endorsing this proposal.

CHAIRMAN MURPHY: Mike?

MR. HAYSLIP: A comment. Nice report, professionally presented, I appreciate that. Speaking from someone that has had a fair amount of construction experience placing slab on grade, or metal deck rather, multi-story office buildings, I understand the issue very well. Especially when someone gets snow on their boots and they are going up to the point of access. That’s where you’re going to find a lot of times is right at the worst place is right at the ladder. That’s where everybody’s boots get shaken off. I understand that.

I have a question and a comment. In the interest of time, because we’re running up tight to the schedule, I’ll be brief. Why do you think market forces haven’t taken this over? If it’s a good idea and it should be done, why does OSHA need to regulate at all? Why doesn’t the marketplace do this?

MR. PAUL: I wasn’t part of the presentation, but I am here to answer questions. I’m also not comfortable with a microphone, so I apologize.

A lot of this is going forward already. The idea of taking the oil off the deck, the condition of the steel when we get it from the mill, all of that has changed. A lot of the reaction to this is the way material was made 20, 30 years ago. Yeah, some of it is still made that way, but in very few instances does that occur. The market has absolutely taken this over.

We would like to have the reserve clause removed, but even if it is not, the gentleman is correct. We will move forward anyway, and we’ll make the product safer. It only makes sense. We would like to have your blessing for that.

MR. HAYSLIP: A comment. You’ve got a lot of credibility from first when you said you weren’t comfortable in front of the microphone, I like that right off the bat.

I’d like to see some market forces take place if it is indeed a good idea. Okay. Put that aside for a moment.

Is it possible with some of the materials you had on your slide presentation that are not in our packets here, to get some of those copies? I saw some graphs and some data and things of that nature.

MR. PAUL: Absolutely.

MR. HAYSLIP: All right.

CHAIRMAN MURPHY: I’d like to make a comment. Linwood, if your comment earlier was a motion, I need a second to that motion.

MR. STRUDWICK: I second the motion.

CHAIRMAN MURPHY: Thank you, Greg. All in favor? Sorry.

Tom?

MR. BRODERICK: I direct a question to Sarah. The purpose of placing a reserve clause in the standards, is that to make it easier should technology change, should slip resistant testing technology become better, or whatever might change? Does the reserve clause make it easier to change the standard to reflect the new technology? Or would in any case the normal rulemaking change in the process take place?

MS. SHORTALL: I don’t know what was said in the preamble to the final steel erection rule as to what the rationale or the reasoning the Agency gave for the reserve. The reserve is truly just a placeholder if and when we decide to do this. This is the appropriate place to put it, and it would not at all change the requirements that the Agency would need to comply with in terms of rulemaking. It would have to go through all the rulemaking functions if it wanted to add substantive requirements.

MR. SHOEMAKER: One thing to maybe help you understand the reserve clause is initially the first drafts had a provision in there for decking. It said that you shall test decking with this tester, and get this co-efficient of friction. And so that then was removed while this study went forward. That is why it was reserved. So it wasn’t just stuck in as a placeholder. There originally was something there that just wasn’t technically feasible.

MS. SHORTALL: Well, it’s obvious, Mr. Shoemaker, I myself had read the final preamble as well as the proposal. Thank you very much.

CHAIRMAN MURPHY: Other comments?

Scott?

MR. SCHNEIDER: I personally, I mean, I’m supportive of the program. I would like to familiarize myself with the report. I really just got it this morning and took a look at it. It seems like there is no really rush to discuss this or to make any decisions since it is not on the regulatory agenda, and all there is is a reserve clause, it seems almost moot.

So I don’t really see the need to vote on this. I mean, certainly we can commend them for their program. I don’t really see the purpose of this personally.

MR. HAYSLIP: I fall in line with Mr. Schneider’s comments in that I would have liked to have seen this material before we showed up here today so I could have reviewed it and asked questions. I’d also like to see some more data, how many slips, trips, and falls do you project are going to be eliminated or reduced.

I’d like to know the cost of these materials. What is the financial impact. Not to say that cost should override the health and safety of individuals, but I would like to know that information. I see some data that has been done on co-efficient of friction as a professional civil engineer. I would like to have access to that data. I’m not in a position to endorse it at this time. It doesn’t mean I wouldn’t, but at this time I’m not prepared to endorse it.

CHAIRMAN MURPHY: Other comments?

Bruce? No?

MR. SWANSON: I would have a comment, Mr. Chairman, after we vote on the motion that is before us as to whether or not this body is going to make a recommendation. If it doesn’t, then I would like to have another comment.

CHAIRMAN MURPHY: Okay. So we need a vote on the motion.

MS. SHORTALL: I would ask before you vote on the motion if Mr. Smith could clarify exactly what his motion is for the record.

MR. SMITH: I think the motion was twofold, that we endorse their proposal that suggests the use of proper techniques, and also the warning signs for steel that doesn’t have this coating on it. Also that the word “reserved” be removed from the standard.

CHAIRMAN MURPHY: Thank you.

Tom?

MR. BRODERICK: I think my sentiments follow along those of Scott and Mike, that I believe after reviewing the material that we’ve been given and reconvening at the next ACCSH meeting where we would also have hopefully Frank Migliacco from the Iron Workers Union labor organization whose members would be affected by this, that we would all be more prepared to give an informed vote.

My sense is that that informed vote would be a positive vote. At this point, I’m concerned that if we vote it up or down, we’re going to send a message to the constituents of the people that have done a fine job of making their presentation and making their case that we have voted essentially against their efforts, which is not the message that we want to send.

So I don’t know much about Roberts Rules of Order, but it would seem to me that if we could just table this until the next meeting, that we would be able to provide an affirmative vote, and therefore an affirmative message to the gentlemen that are here, and also to their respective constituencies.

CHAIRMAN MURPHY: Thank you, Tom. I’m getting a lot of help from the Solicitor’s Office here. One of the recommendations that was made is because of the discussion that I’m hearing in the last 10 minutes is to table the motion until our next meeting and allow everybody the opportunity to review the material.

But then we have a date and time so that we can do some sort of reaction to the motion that you put before us, Linwood. I would entertain a motion to table until the next meeting.

MR. STRUDWICK: So moved.

CHAIRMAN MURPHY: Second?

MR. HAYSLIP: Second.

CHAIRMAN MURPHY: All in favor? Thank you very much, gentlemen. It was most informative.

SPEAKER: When is the next meeting?

MR. SWANSON: Typically, sir, what is done is the last order of business of the committee is to set a calendar date for when it would like to meet again. It is generally approximately 90 days out. I would be happy to inform you as to what that date is after this meeting if you have to leave.

I would also like to suggest, travel is sometimes costly, oftentimes inconvenient, and I know that Mr. Hernandez and yourself would, although you would like this committee and the Secretary, the Assistant Secretary of Labor to take action on your request sooner rather than later, you don’t want to cross the country if you don’t have to, either.

So my suggestion would be the committee has tabled this, and they are going to vote at the next meeting on it. I would ask that if any of the committee members now or anytime in the next 30, 60, 90 days feel that your presence is necessary to answer questions on your presentation, that they get it to me, and I will invite you to the next meeting.

If your presence is not required, you are certainly welcome, it is your choice. But if all the committee is going to do is consider your presentation this morning and don’t need you for follow up, I think it would be kindness on their part to not require you to be there just to watch them vote.

CHAIRMAN MURPHY: Thank you very much, gentlemen. I appreciate the presentation. What we’ll do now is take five minutes and we’ll allow the gentlemen from NIOSH to set up their program. So if you would, just a five minute break. Thank you.

(Whereupon, there was a brief recess.)

CHAIRMAN MURPHY: Before we introduce our next group of speakers, Sarah would like to make a comment to the group about the motion that was made a few minutes ago.

MS. SHORTALL: I just want to clarify for the record what a motion to table, Mr. Smith’s motion, to the next meeting means. It means that in the meeting, the next meeting ACCSH has, that it is Mr. Smith’s motion that will be relevant, germane, and on the table.

The beauty of it is Mr. Smith’s motion, because it was seconded, will be included in the minutes of this meeting, and you’ll be able to refer back to it in your packet during the discussion at our next meeting.

CHAIRMAN MURPHY: Thank you, Sarah.

I’d like to turn the mike over to Cheryl to introduce our next speakers. Cheryl, if you would, please.

MS. ESTILL: Sure, yeah. I’m happy to introduce Dr. Jeff Kohler. He’s the Associate Director for Mining and Construction at NIOSH. He would like to give us some information on the NIOSH construction program. This is for our information. We’re not really going to need to vote on anything specific.

Dr. Kohler?

UPDATE - DEVELOPMENT, NIOSH CONSTRUCTION PROGRAM PLAN

MR. KOHLER: Great. Thank you very much. I appreciate the committee giving me this opportunity to provide the Commission a report.

I’m going to give a few updates, but really a very specific set of targeted updates. In fact later on in the presentation I want to give you a heads up that we’re going to be coming back and asking constituents, stakeholders, customers within the construction industry to help us in the process. I’ll talk a little bit more about that.

As all of you are aware, within the National Institute for Occupational Safety and Health, we do focus on a number of important health and safety areas. There are certain high risk sectors, including construction, mining, and healthcare, which we probably devote a special emphasis.

Over the past several years in the mining program, we have made certain successes that have come to the attention of the industry, the laborers, stakeholders, including our Director, Dr. Howard. I think it has been Dr. Howard’s vision that we would be able to expedite and increase the amount of useful outputs that we provide to the construction industry in solving important health and safety problems facing you.

Toward that end, last summer he created a new position, the Associate Director for Mining and Safety. I had been the Associate Director for Mining, and he added construction to that to signal, first of all, the institute’s renewed commitment to solving in a more timely fashion the critical problems facing the construction industry, and also a reflection of his belief that as in the mining program, we really needed to focus on coming up with practical, workable solutions that we could move out into the industry as quickly as possible.

So toward that end, I’m here to tell you about really what I think are some exciting things related to this increased emphasis on construction throughout the institute. First of all, we have some new extramural efforts underway. We have a large extramural program where we give grants and contracts to universities and other collaborative centers.

The CPWR Center is off and running with some very exciting projects. Some new projects funded at Virginia Tech, as well as at Purdue and other places. We are working in strong partnership with our extramural grantees to ensure that the monies are leveraged in such a way that we can get the maximum bang for the buck.

The r2p initiative, again, another one of Dr. Howard’s initiative, a belief that within the institute, our job isn’t done when we’ve published a paper in a nice peer review journal. Certainly that’s an important part of what we need to do. But in fact, until we get out to the job site and we change behaviors, or we provide practical tools or practical engineering interventions, then we probably haven’t made the kind of difference that we’re striving to make.

So toward that end, Dr. Howard launched the r2p initiative, and that’s really a core part of what we’re trying to do in construction as well.

But the main thing that I wanted to really share with you today is the fact that we are undergoing an institute-wide program planning process related to construction. It is in this particular process that we are going to be interacting with customers and stakeholders, people like you.

At the moment, within the institute and the construction area, we have a collection of good projects, and I think we have a track record of developing successful interventions. The situation we face, however, is that resources are constrained, it is hard to get projects up and running in all the important areas that we need to, customer expectations are increasing. It is a funny thing about many of you coming and asking for more and more solutions to these important problems, and we need to be responsive to that.

So we’re really looking for ways that we can increase the impact that we have, even though our resources are not increasing. From an evolutionary point of view, within the institute we’ve evolved into this collection of good progress.

The collection addresses priorities. Priorities like hearing loss prevention or respiratory disease prevention or fall prevention. That’s good to have priorities.

But in fact what we really want is we want to have not just a collection of projects, but we want to have overarching goals so that we’re goal focused, not just priority focused. It is one thing to say that my priority is hearing loss prevention. It is another thing to say my goal is in five years to reduce noise output on this piece of machinery by 5dB. So we’re really trying to become more goal focused. I’m going to tell you how we’re doing that process.

It is also our belief that everything we do needs to be customer and data driven. The customer and data driven tells us where we want to go, not what interesting projects we may want to work on, but first and foremost, what are the greatest needs of the people who send us “a pot of money” each year to do the work for them.

An outcome-based program. That is to say that focusing on the outcomes, not just the outputs. The outputs may be things like papers, they may be CDs, they may even be training programs or some sort of control technology. But the outcome is the reduction in the adverse health or safety effect.

We are really focused on not just training a worker with a new program, but making sure that training has made a difference in improving a certain outcome like safety or health.

Finally, a program which really is accountable to the taxpayers and the customers. I think that the taxpayers and the customers expect three things from us. They expect that first of all, the work that we do is quality work. I mean, it is the gold standard. Secondly, that it is relevant. There are many, many problems that we could be working on, but we need to work on the most relevant problems as defined by the surveillance data, and as defined by our meetings with you where you tell us what your greatest needs are.

Finally, I think we should be accountable for our impact. That is to say year after year there is some pot of money that is transferred from collectively all of our pockets to the agency. What have we done with that money year after year? What difference has that investment made? So we’re believing very strongly that we need to be able to demonstrate what the impact has been for the taxpayer investment in our research.

Again, toward that end, as we go forward to develop this new planning process, this goal-driven planning process, we are also putting in, building in performance measures so that in five years, you will be able to sit down and evaluate just how effective work in different areas has been.

In sort of model form, this is what we used in the mining program. It worked very, very well and we are applying a similar model in the construction program. That is first and foremost we do our needs and gaps analysis. To do that, we look at the surveillance data, we see what it is telling us. But equally important is we interact with our customers and understand what they are telling us.

We take the management team on the road. We sit down, we meet with labor associations, we meet with trade associations, we meet with manufacturers. We meet with other government agencies like OSHA or MSHA, we meet with anyone who is a stakeholder or customer of our work. We ask them a few simple questions. What can we do to make your job easier? Are we meeting your expectations? What kind of work would you like to see us focusing on?

So we take all of that back, the surveillance data, the input from customers and stakeholders, and we really use it then to define what the biggest needs are out there. We then look and see where the gaps are. Why do these needs exist? Are they research gaps? Are they training gaps? What are they? How should we approach it? Based on that, we then begin to craft a program plan. I’m going to speak more to the program plan.

The program plan then once finished becomes first of all, a very transparent and visible document that you all can read, look at, and comment on, and in fact we will be asking you to work with us on various drafts of that. But it also becomes a visible plan for people within the institute to help guide researchers in selecting their research projects to help guide research management in funding the internal research projects, as well as even directing the way we may move in our extramural or our grant program.

It then becomes the responsibility of my office with the able services of people like Matt Gillen and others to really coordinate intramurally and extramurally what we’re doing to make sure that between the two components, intramural and extramural, we are able to achieve the goals that we set out to achieve in our program plan.

This program plan consists of a small set of strategic goals. The strategic goals represent high priority areas that we wish to achieve over probably a 10-year period. I believe in the handouts that you were given, in addition to a copy of these PowerPoint slides, you also have sort of a frequently asked question list, and the list of strategic goals is placed there.

Each strategic goal then is backed up by intermediate goals. Intermediate goals really reflect the kinds of things that you all and our researchers would identify as the barriers as to why we can’t achieve the strategic goal.

Let’s suppose, for example, that our goal is to eliminate electrocutions in the construction industry, a big cause of fatalities. What are the barriers? Why can’t we achieve that today? What do we need to do to make that happen? If we look at it, we may see that well, we need some technology, some control technology would be useful. So an intermediate goal may be to develop that technology.

We may find that there are some training deficiencies that we need to be more successful in training workers to respect electricity under certain conditions. So that becomes an intermediate goal. Along with each intermediate goal, we also have a performance measure so that we can be evaluated as to how effective we are in achieving it.

Then of course to get to the intermediate goals, we have our annual goals, which is how internally our managers would track progress and allocate resources.

I want to give you an example of a goal. You’ve got the draft goals for construction. This is one for mining. I’m using it because I’m going to then back it up with some other things.

One of the goals there was to reduce respiratory diseases in mine workers by reducing the health hazards in the workplace associated with coal worker pneumoconiosis, silicosis, and diesel emissions.

What I wanted to point out for that strategic goal is an example of a performance measure. If you look at this performance measure, we basically give a time frame that is within ten years. We tell you what we’re going to do, we’re going to reduce respirable coal dust exposures of the following occupations by 50 percent, and using a baseline of the date of the report, which was 2004. So for each of the strategic goals, we will be defining these performance measures.

Now, I mentioned the intermediate goals. The intermediate goals really become sort of the substance and the workhorse for all of this. In terms of historical perspective, I think all of you have some familiarity with the NORA process that NIOSH has used, the National Occupational Research Agenda. Many of you may have even participated in forming that agenda several years ago.

There is a new NORA II process which is evolving. The NORA process has identified priorities, and certainly something like reducing respiratory disease would be a priority. Where the goal setting process goes now one step further, is that it takes that priority and it now sets specific goals to make sure that every 5 or 10 years we don’t have the same priorities.

If we look at Intermediate Goal 14, which is one of five or six intermediate goals related to Strategic Goal 1 that I just showed you, there are three colors used there, red, blue, and white. Every one of the intermediate goals is articulated in the same way.

The first sentence crisply spells out exactly what the intermediate goal is. That is to reduce silica exposure of workers in metal and non-metal mines and mills. The second part in blue tells us, tells you exactly why we know this is a problem, so we all understand what the problem is that we’re trying to solve.

Then the third part talks about exactly what it is we are doing to chip away at that problem to solve an intermediate goal. In this case, we’re developing improved control technologies. There would be other approaches, and there are other intermediate goals which would address those approaches.

Where are we in all of this process for construction? Well, actually we’re very early in the process, which is why I’m grateful for this opportunity to be here in front of you.

At this point in time, we have drafted our strategic goals, and we have them in front of you. We are now in the process of trying to develop intermediate goals. We are doing that with some cross-institute teams, and we’re also soliciting input from customers and stakeholders.

Once we have the draft goals developed, we will be sharing them with this group, as well as with many other groups. In fact, with anybody who is willing to read them and provide us with some comment and feedback.

You know, when we’re done, we would really like to have a plan where everybody can rally around and say yes, if we are going to eliminate these major causes of injury and illness in the construction industry, we all agree that we’ll do so by addressing all those intermediate goals and being successful at addressing those goals.

If that document is to achieve that purpose, it will be because people like you have taken the time to read it, to study it, to critique it, to challenge it, to share your insights and your thoughts.

Questions?

Scott?

MR. SCHNEIDER: Thanks for coming, Jeff. I really appreciate it. I’m excited about this, I have been involved with NIOSH for many, many years and appreciate the work that everybody does there.

I had a couple of questions and comments. One of them is I think to me, NIOSH has done a lot of great research, but the area that’s lacking really is the r2p areas. Basically how do you translate this into practice, doing research on the nature of the construction industry and nature of how change occurs in the industry, and how do we make change in the industry?

I think it was highlighted to me last week when we had the hex chrome hearings, by the way which NIOSH did a phenomenal job at OSHA. But when we had testimony from workers who said well, I haven’t seen hand washing facilities on my job sites in 21 years in the industry. So you have to wonder, well how do we create an atmosphere, how do we make changes? It’s not like the solutions are not evident or are very complicated or technologically infeasible.

So I think that’s an area where I really would like to see more research being done on how to make change.

I was wondering if you could comment a little bit on how r2p, the r2p program is going to be working in the construction industry specifically.

MR. KOHLER: Sure, I’d be happy to do that. In fact, I think it is the coming together of Dr. Howard’s vision for the increased r2p and the program planning process where we’re setting specific outcome goals that we are really going to jumpstart the r2p process. With the performance goals, you don’t really get a lot of credit per se for developing a document, or CD, or a training package. What you get credit for is making a difference.

So that’s the translation, the research to practice. So by virtue of the fact that our new planning process is going to drive people to achieve goals, it is now going to force everyone to look at this research to practice, because it is not until you get to the other side of the two in the practice side that you’re going to get any credit, so to speak, for making a difference.

So I think you’re going to see a lot of activity there. The other thing that Dr. Howard has done is he has elevated the r2p concept. He has designated some resources internally, it has become a part of all internal proposal processes. I think, again, you’re going to see a lot more activity in the r2p. Everyone should demand that.

At the end of the day, it is what we do out in the field to make a difference. That is what everybody should be asking for.

CHAIRMAN MURPHY: Tom?

MR. BRODERICK: Is there a place on your website or somewhere where we could find out how the monies that were allocated for the construction centers, what research was funded under that?

MR. KOHLER: You’re speaking now of the cooperative agreements? The grant program?

MR. BRODERICK: CPWR.

MR. KOHLER: Yes. You know, I am told that that is now up on the website and you can go to it. I have personally not been able to find it.

Have you found it, Mike?

MR. GILLEN: I think that’s something that Mike Galvin --

CHAIRMAN MURPHY: When you comment, please step up to the mike.

MR. KOHLER: I think that Matt’s response was that it is in process, so in a short period of time you should be able to go to the website and read about exactly what was funded.

MR. BRODERICK: Okay.

CHAIRMAN MURPHY: Michael, did you have your hand up?

MR. HAYSLIP: I did. r2p, research to practice, goal focused, great concept, love it. There is no “but” to follow after that statement.

I like the use of continued peer groups, the continued use of peer groups. I like the fact that NIOSH is going belly to belly now in the field with industry professionals. It definitely seems a good thing.

I like the focus on the distinction between outcome and output being such that deciding whether a written respiratory plan is in existence versus actually getting a respirator on a crafts worker after the engineering and administrative controls are done, there is a distinction there.

Does the piece of paper in the file exist is a lot different than physically getting the thing in use. I like that you and your organization has identified the distinction between those two things. Very commendable.

Comment. Ten years for some of these strategic goals seems to be a long time to me. If it’s important, this isn’t to me rocket science. I don’t see why it can’t be sped up. Ten years seems too long.

You tend to lose institutional knowledge, because some of your people leave, some of the data may get old. I’d like to see NIOSH tighten up and move quicker on some of these things. Although they are very good projects.

Last comment. You talk about strategic goals. OSHA has strategic goals. In their 2003 to 2008 strategic management plan under Strategy 2.2, Action G talks about strengthening relationships with NIOSH. OSHA’s goals.

I ask you, and I put it before the committee, is there a value to have OSHA come before us and tell us how they are working with NIOSH? I hear your side, but I’d like to know, is it a value to be informed on how OSHA is working with NIOSH. I ask you, and I put it as a discussion point.

MR. KOHLER: I will leave it to the OSHA people to decide whether or not they want to come forward and talk. But I can tell you from my perspective in NIOSH, during Dr. Howard’s tenure, there again has been a greatly renewed effort to have NIOSH working much more closely with OSHA, and also with MSHA.

There are meetings that are held between senior and executive leadership on a very regular basis, probably every few months or so to discuss substantive issues. I mean, I would say that there is a lot going on.

I mean, let’s face it. In many ways, we’re linked at the hip to the regulatory agencies as a research agency. It may be the regulatory agency’s goal to reduce a certain problem by a certain amount. But if they don’t have the tools to do that, it will be very difficult to achieve the goal.

On the other hand, we may develop tools that could do that, but if those tools aren’t embraced by the regulatory agency, we are not likely to be successful. So in fact you’ve really pointed to a need which I think we’re on our way to meeting. That is good communication and partnering with our government sister agencies as well as with partnering with the trade associations, labor organizations, and the manufacturers.

CHAIRMAN MURPHY: Scott?

MR. SCHNEIDER: There used to be, and I don’t know if there still exists, a committee called the ONE committee, which stood for OSHA, NIOSH, and EPA. I used to call it the EON committee and spell it differently.

I don’t know if they still meet, but if they do, it would be interesting to see what they come up, or whether or not Jeff and Matt could or would meet directly with the folks at DOC on a regular basis. I think that would be very helpful.

One other thing I was going to suggest that I think would be very helpful for people on this committee is they may not be familiar with who is doing what on which issues at NIOSH in terms of construction research. I don’t know if you have a list that you could get to the committee of what kinds of projects and who is doing what.

Like I know, for example, Ted Sharf and I have been working on ladder safety issues. I just got a call from Hong Wei Hsaio who is doing some stuff on ladder safety also in Morgantown. I know a number of the folks, but many of the people at the table may not be familiar with them. Perhaps some sort of contact list with some information about who is working on what would be very helpful to the people on the committee.

MR. KOHLER: I think that’s a good idea. We have some materials we could provide. I’ll go back and work with Matt and Cheryl, and we’ll come up with something.

MS. ESTILL: On that note, we have for our 2002 projects, a list that is called the NIOSH Construction Compendium. It goes back two years, a few years, but it gives the project officer their phone number and kind of an abstract of what the projects are. We’re working on that, and we’re going to put out another one probably next year or something like that. MR. THIBODEAUX: I noticed on your draft list of strategic goal topics, you’ve got fall injuries among construction workers. Has NIOSH looked at delineating between commercial versus homebuilding? Because that has been a question over the years, and I don’t know that anyone has ever looked at it in that regard.

MR. KOHLER: Let me answer that in two parts. From a process part, during the intermediate goal setting, it would then sort of flesh out whether or not it was a problem in certain sectors, or whatever, and the kind of work that would be done would address that.

To answer the second part, whether or not anybody within the institute has already looked at that, I don’t know the answer to that.

CHAIRMAN MURPHY: Any other comments? Questions? Thank you very much for your time, sir.

MR. KOHLER: You’re welcome. Thank you.

MR. SWANSON: Mr. Chairman, may I?

CHAIRMAN MURPHY: Yes, you may.

MR. SWANSON: Thank you. I think everyone on the committee knows the Secretary of Labor appoints the ACCSH committee, or at least the Secretary of Labor appoints 14 of the 15 members of the ACCSH committee.

There is a representative from NIOSH on this committee that is appointed by the head of NIOSH. It is my understanding that Dr. Howard, the head of NIOSH, informed the Department of Labor yesterday by letter that Dr. Kohler, who you just heard, as a try-out so to speak, I guess, has been named as the new ACCSH member to replace Cheryl, the Commander Estill. I know that we are all going to miss Cheryl, and Dr. Kohler has I won’t say large shoes to fill, he’s got a heavy burden to carry to match her input to this committee. We look forward to his service. We surely hate to see Cheryl leave, but I understand that’s not our call, it is Dr. Howard’s.

MS. ESTILL: Thank you, Bruce. I appreciate it. I’ve enjoyed my time on this committee. I think Dr. Kohler would do a very good job, and is in a position to look at different points within NIOSH to get the right information before the group here.

CHAIRMAN MURPHY: I, too, would like to thank you, Cheryl. It has been a pleasure to work with you. I certainly hope that it doesn’t stop just because you’re not on a committee, because you have a lot of good ideas. I think I can probably speak for everybody on this committee that we really enjoyed working with you.

MS. ESTILL: Thank you.

PUBLIC COMMENT

CHAIRMAN MURPHY: Our next order of business is public comment. I checked a few minutes ago, and nobody has signed up for public comment. Is that still correct? So we only have a couple other items that we need to do here, and then we can close the meeting.

One thing I do need to remind you of is for those doing trenching and excavation, there is a subcommittee meeting this afternoon from 2:30 to 4:00. I understand it will be in this room, just so you’re all aware of that.

INITIAL CONSIDERATION OF DRAFT PROPOSED RULE ON CONFINED SPACE IN CONSTRUCTION CONTINUED

CHAIRMAN MURPHY: The one thing outstanding, I asked for feedback earlier this morning on the confined space in construction draft. We need to revisit that topic. I’ve had quite a number of discussions since we talked this morning. I would like the committee to consider the draft proposal.

We have one of three options. Yes, the way it is, yes with the comments that you were all kind enough to provide to me, or no. We have to bring that to a close, and then we can finish up the last few details. So I guess what I’m looking for is some comment or a motion on the confined space in construction draft that we all talked about earlier.

Michael?

MR. HAYSLIP: I would make that motion as stated by the Chair, such that we take a vote on this confined space standard with the three options being yes, no, yes with comments.

CHAIRMAN MURPHY: Okay.

MR. WILTSHIRE: I’ll second that.

CHAIRMAN MURPHY: Okay.

Scott?

MR. SCHNEIDER: I wanted to follow up and get an answer to the question I had earlier about Section 1202(b)(2) which says that basically this does not apply to any excavations other than sewer construction. I guess I’m concerned, I’m just raising the question, are we saying then that excavations cannot be considered confined spaces unless they are part of sewer construction?

CHAIRMAN MURPHY: I guess that would indicate to me that that is yes with comments?

MR. SCHNEIDER: I’m asking whether –-

CHAIRMAN MURPHY: I don’t have the answer to your question. Maybe Bruce can address that.

MR. SCHNEIDER: And I would like to state for the record, I would suggest that OSHA supply the committee with whatever economic and regulatory analysis they have so that we can consider that. I guess we would have to consider it at a future meeting for comment.

CHAIRMAN MURPHY: Greg?

MR. STRUDWICK: Just in response to Scott’s concern as far as the confined space and excavation, the excavation standard Subpart B clearly defines the trenching operation. I think that comment, excluding Subpart B, probably addresses the fact that a trench is large enough typically for somebody to go in and out, has limited means of access and egress is not meant for human occupancy for any length of time. So it excludes that based on the fact that a trench is an ongoing operation, but will refer back in a situation where there is a pit over a sewer main that could be considered a “permanent” required confined space.

CHAIRMAN MURPHY: Sarah?

MS. SHORTALL: If I heard Mr. Hayslip’s motion correctly, it is not really a motion, because you’re not identifying one of the alternatives. The other issue is what is your intent by comment? Would the comments just be these are comments of individual members of ACCSH? Or would these be and furthermore, these are specific items that ACCSH as a whole is recommending?

CHAIRMAN MURPHY: Michael?

MR. HAYSLIP: I understand. Let’s address the first one. Describe that, what you mean by that. Clarify, if you would.

MS. SHORTALL: Well, what would be germane now is to entertain a motion to have ACCSH recommend to the agency that they proceed with the proposed line confined spaces as is. Number two could be a motion that ACCSH recommends that OSHA not move forward with the proposed line confined spaces.

Number three could be two separate motions. One motion would be that ACCSH recommends to OSHA that it move forward with all due speed on the confined spaces proposal, and furthermore recommends, and then you would add the specifics that ACCSH would vote on, such as Mr. Linwood’s suggestion from earlier. Or it could be ACCSH recommends that the agency move forward with the confined spaces comments, and ACCSH moves to provide to the agency the comments of individual ACCSH members on the confined spaces draft.

MR. HAYSLIP: I understand very clear. Allow me to rephrase, if I may. I would like to make the motion that this committee will vote on the existing confined space standard with three possible votes, potentials for votes.

Those would be advise OSHA to take this standard as is. Number two would be to advise OSHA –- correct me.

MS. SHORTALL: Pick one.

MR. HAYSLIP: Pick one? I’m not understanding.

MR. BEAUREGARD: Sarah, I have a motion I think that will probably address it. Everybody may not agree with it.

MS. SHORTALL: Get it out on the table.

MR. BEAUREGARD: I’d like to make a motion that ACCSH recommends that OSHA move forward with the draft proposed standard for confined spaces and construction as proposed, taking into consideration written and verbal comments by the individual ACCSH members that were presented today.

MR. HAYSLIP: I would second that.

MS. SHORTALL: That would be germane, yes.

CHAIRMAN MURPHY: Thank you. Comments?

MR. STRUDWICK: Thank you, Kevin.

CHAIRMAN MURPHY: All in favor?

MS. SHORTALL: Wait, wait. I think then you need to probably –- these would be comments given today as part of the record? Or comments that would yet to be –-

MR. BEAUREGARD: The comments, it is my understanding a number of members gave verbal comments, and then I believe some folks in the committee have submitted written comments also today.

MS. SHORTALL: So as the maker of the motion, would you accept a friendly amendment that said the comments, individual comments given by ACCSH members during today’s meeting?

MR. BEAUREGARD: Yes, I would accept the friendly amendment.

MS. SHORTALL: All right.

MR. SWANSON: Excuse me. Does that mean comments yet to be made? I mean, we are giving them a blank check on this motion.

MS. SHORTALL: It would be comments during today’s meeting only. It would be limited to that. So at the close of the meeting, that would be the close of the individual comment.

MR. HAYSLIP: Point of clarification. Including those comments that may get to be put forth?

MS. SHORTALL: Today during the meeting.

MR. HAYSLIP: Well, I don’t know if I like that. I want to know what the comments are. If it is something that needs to be said, I want to hear it. I don’t want someone to slip something under the radar screen in front of somebody’s eyes that I haven’t seen.

MR. BEAUREGARD: I agree with that.

MR. HAYSLIP: If there is a point to be discussed, I want to hear what it is. I’d limit it to only comments that have been made to this point.

MS. SHORTALL: Well, I only said during today’s meeting because I’m not sure if there were any remaining comments that anyone wanted to make.

MR. HAYSLIP: I understand. Today’s meeting will end a few minutes from now after the vote has happened.

MS. SHORTALL: Yes, right. Because someone could make an additional comment during this discussion period, right now on this motion.

MR. HAYSLIP: Right, and I think that’s improper. Do it now, or don’t do it.

CHAIRMAN MURPHY: Linwood?

MR. SMITH: Is it now appropriate to make a comment?

CHAIRMAN MURPHY: I’m not sure anymore.

MR. SMITH: I’m not sure either. I would seek clarity on whether this is an amendment or just a comment.

But I think there is yet some work to be done. I think there is some additional work that needs to be done on this. I don’t know that there’s a need to rush to pass this motion anymore than the other motions that we’ve considered today. Our recommendation would be that we ask OSHA to develop an issue, CPL, or other document that does the following.

One, provides guidance as to when construction of confined space standards is applicable to construction companies and contractors versus when general industry standards is applicable to this. Also to seek and where possible, seek to reconcile differences between the general industry standard and the construction proposed standard to clear up some problems.

Also, I would recommend that even before issuing any kind of guidance document, that OSHA attempt to reconcile and to take time to look at differences that do exist between the construction standard and the general industry standard and see if they can be reconciled, and reconcile them where possible.

Right now we’ve got as construction contractors, we’ve got two standards we’ve got to follow. There may not be an enforcement deal for the general industry standard, but most construction companies in this company as I’m familiar with, work right now on general industry standards. We are already complying with the general industry standard, whether it is enforceable or not. To reinvent the wheel would be tough.

So in that spirit, you know, I would ask for those comments to be considered by OSHA, or either ask that that be an amendment to the motion, whatever would happen to be applicable at this time.

CHAIRMAN MURPHY: Thank you, Linwood.

Sarah?

MS. SHORTALL: Well, either would be appropriate. You could move to amend the motion to include that. The way I would interpret Kevin’s motion with accepting the friendly amendment is that any comment that’s made by an ACCSH member on the record before this meeting closes, or excuse me, while we’re still discussing confined spaces, would be given to OSHA for consideration.

MR. BEAUREGARD: I can just say my intent was, and maybe it wasn’t clear, but we either need to make a motion that we accept what was provided to us and ask OSHA to move forward, we accept what was provided to us and have OSHA take into consideration the comments that the members made today, or we don’t accept what was provided for us and make a motion that OSHA does not move forward with that.

I think those are the three things that are on the table. Now, we can vote on any one of those things, or all three of those things, I guess. But I don’t think we can have one motion that includes all three.

MS. SHORTALL: Yes.

MR. SMITH: I’m okay with my comments being considered just as comments, but I would also like to request a response from OSHA as to the comments that me and maybe other people have made today maybe at our next meeting.

CHAIRMAN MURPHY: Kevin, I think you clarified exactly what I asked for, it was yes with comments, or no. There are three things here. I guess your motion is, if I understood you correctly, the motion was yes with the comments that were made by the ACCSH committee members today, and that was seconded, am I correct?

MR. WILTSHIRE: That’s correct.

CHAIRMAN MURPHY: Yes, Michael?

MR. THIBODEAUX: You are saying comments as part of the record. Are you including the written comments that members have submitted to you also?

MR. HAYSLIP: Yes.

MS. SHORTALL: You need to have them made part of the record.

MR. BEAUREGARD: It may be beneficial if you’ve got any written comments that were other than what was provided to the group, you may want to at least read those comments so that people know what they’re voting on.

MR. SWANSON: Can I give these back to the author and have him read it into the record?

MS. SHORTALL: Sure.

MR. SWANSON: And then we’ll all know what he’s doing.

CHAIRMAN MURPHY: Was there any other written comments put over here? I only received one set, and that was from Michael. Otherwise, I didn’t receive any other written comments, other than what we went through earlier, and you all had made good suggestions.

Bruce and I noted those suggestions as we went through. They are on the record.

Michael?

MR. THIBODEAUX: Generally on the confined space in construction, I’ve got some questions. What data is there supporting the need for this rule in construction? Is there data on fatalities that are serious injuries occurring in confined spaces during homebuilding construction, which is my interest.

Homes with crawl spaces, will they be covered by this particular standard? I think Greg addressed that earlier. Are there other examples of confined spaces in homebuilding that would be covered by this rule? Are there existing construction standards? For example, ventilation, hazard communication adequate to address confined spaces in the homebuilding industry?

The confined space classification system appears to be a little complicated. I recommend that OSHA should streamline this process so that smaller, medium sized contractors can understand and easily implement. There is the Appendix A for the general industry confined space standard that talks about permit required confined space decision that just takes you through a step, yes or no. If you answer no to these, then you don’t have to worry about it. It is a lot easier to follow than what I think is in this standard now.

The draft confined space standard expands on the duties of the general contractors. I think I had mentioned that earlier. Approximately 80 percent of the GCs in the homebuilding industry are small or medium sized companies who typically use specialty trade contractors. They are not as knowledgeable, the GCs are not as knowledgeable in confined space hazards as these specialty trading contractors.

The GCs under this draft standard are required to coordinate confined space activity of all the trade contractors, and a lot of them just don’t have the expertise to identify, recognize, correct, confined space hazards created or encountered on the job. Those are my comments.

CHAIRMAN MURPHY: Greg?

MR. STRUDWICK: One more set of comments. To back up my original statement that we felt like that the standard or the proposed draft was in line with what we needed as far as the 1926 regulations are concerned. I want to read, for the record, out of the 1926 regulations the training recommendations, 1926.21(b)(6) that the standard would allow us to comply with.

So (6)(i), all employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective emergency equipment required. The employer shall comply with any specific regulations that apply to work in dangerous or potentially dangerous areas.

For this purpose, and this is two, for purposes of paragraph (b)(6)(i) of this section, confined or enclosed space means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants, or has an oxygen-deficient atmosphere. Confined or enclosed spaces include but are not limited to storage tanks, process vessels, bins, sewers, underground utility vaults, tunnels, pipelines, open top spaces more than four feet in depth, such as pits, tubs, vaults, and vessels.

So the draft that we’re looking at would allow us to comply with what is already demanded in this 1926 standard, and it would clarify an awful lot of what it would mean to be in construction and proposing our employees to go into confined spaces.

CHAIRMAN MURPHY: Thank you, Greg.

I believe we have all the comments, and we can go back to Kevin. I believe it was either Steve or Mike seconded. I would like to call for the vote. As long as everybody has their comments on record at this point, I would like to call for the vote.

MR. SMITH: Would you restate the motion one more time?

CHAIRMAN MURPHY: Kevin?

MR. BEAUREGARD: I knew you were going to ask that. I believe what it is is ACCSH recommends that OSHA move forward with the draft proposed standard for confined spaces in construction as provided to the members, taking into consideration written and verbal comments made by individual ACCSH members prior to this moment.

MR. SWANSON: Thank you, Mr. Chairman.

Kevin, I guess I’m confused on behalf of OSHA. The motion is to move forward with the draft proposal taking into consideration those comments that have asked us to not move forward with the draft proposal.

I am left in a conundrum here. I don’t know how I move forward with the draft proposal and take into account Mr. Smith’s comments, vis-à-vis, 1910, for example.

MR. BEAUREGARD: Well, I can just tell you my intent. Maybe the motion needs to be amended, but my intent is it was clear today that there are a number of people that have different feelings on this standard. We have heard from several people that indicated they think you should move forward with the 1910 standard and make that applicable to construction.

We heard other people say that we should move forward with this construction standard with changes. I think there are other people that offered up different recommendations. It was my understanding that this is already published in the Federal Register, and that it may or may not be moving forward anyway.

I thought that OSHA was looking from this group for some recommendations now. OSHA can choose to go with all those recommendations, they can choose to go with none of those recommendations, or they can choose to go with some of those recommendations.

I was just trying to get this moving forward so ACCSH wasn’t holding up OSHA from doing anything on this standard. That was my intent.

MR. SWANSON: So for my clarification on your motion, what you mean by OSHA should take into consideration is that we give due weight to each of the suggestions, and then move forward with the draft as we feel appropriate. Thank you for that clarification.

MR. BEAUREGARD: That’s correct.

MS. SHORTALL: I think we could also resolve part of the issue of how OSHA might take consideration of comments that don’t move forward by having each person on the committee going around and voting individually. That way you might be able to identify their comments with their vote.

MR. SMITH: One other question. Would it delay anything, Mr. Chairman or Mr. Swanson, to ask that OSHA consider these comments and then get back to us at the next meeting for a final vote? Would that delay or hurt in any way?

MR. SWANSON: The only honest answer I can give you, Mr. Smith, and I always do give you an honest answer, is that I don’t know. On a reg agenda, this is scheduled to be published in March. I have nothing to go by but what the official word is as of 12:50 central time on whatever date this is.

So therefore, sir, I don’t know if it would delay it or not. If per chance OSHA does not go to the Federal Register prior to the next meeting of ACCSH, which I presume would be probably sometime in May, if we have not gone forward with our proposal, I think it would be incumbent upon OSHA, DOC, to come back here and clarify some of the issues still outstanding, vis-à-vis, confined space. I would be happy to give you that assurance that should something happen that we don’t publish in March, according to the Federal Register.

MR. SMITH: Thank you for that honest and candid answer, Mr. Swanson.

CHAIRMAN MURPHY: So we have a motion and a second on the floor, and a recommendation that we go around the room and vote on that motion that Kevin made. If you would be so kind, Greg, to start it off, I would appreciate it.

MR. STRUDWICK: I vote yea.

CHAIRMAN MURPHY: Please state your name also.

MR. STRUDWICK: Greg Strudwick votes yea.

MR. SCHNEIDER: Scott Schneider, yes.

MS. ESTILL: Chery Estill, yes.

MR. BEAUREGARD: Kevin Beauregard, yes.

MR. KALINOWSKI: Doug Kalinowski, yes. And I’ll add my comments. I think I said this at the last meeting. The people that I’ve talked to within the program think this standard, even as it would apply to the general industry, many provisions are a lot better today than when the general industry standard was written.

I think regardless of what you can do, Bruce, you know, I think OSHA ought to take a look and move forward with this one, and also take a look at the general industry standards and say, use this as a model. I’ve learned since that one came out, I think it would be better overall for the whole industry, especially for construction, if they only had one standard to deal with.

There are provisions in there that apply to the general industry, and some that apply to construction individually. I think it would be easier for the whole world to have one standard, and I think this one is one that is probably better than the one that is in place today. Thank you.

CHAIRMAN MURPHY: Thank you, Doug.

Linwood?

MR. SMITH: Thank you. My comments are on the record. Based on my thought that Mr. Swanson and his staff will consider our recommendations today and take them to heart and see if they can lighten the burden at all on the construction industry, based on our comments and also that of Michael, I will vote for it.

CHAIRMAN MURPHY: Thank you.

Michael?

MR. THIBODEAUX: Mike Thibodeaux reiterating Linwood’s comments that if you’ll take into consideration all of the things that have been put on the record today, I’ll vote yes.

CHAIRMAN MURPHY: Thank you.

Thomas?

MR. BRODERICK: Tom Broderick, yes.

CHAIRMAN MURPHY: Michael?

MR. HAYSLIP: Mike Hayslip. I vote in line with Mr. Smith and Mr. Thibodeaux, yes, provided OSHA considers the comments and gives them their due weight.

CHAIRMAN MURPHY: Steve?

MR. WILTSHIRE: Steve Wiltshire, yes.

CHAIRMAN MURPHY: And Dan Murphy, yes. That was a tough one. Thank you very much.

MS. SHORTALL: Mr. Chair, since you received two of the comments in writing, I would request at this time that Mr. Linwood Smith’s written comment be entered into the record as Exhibit 4, and Mr. Thibodeaux’s comment be entered into the record as Exhibit 5.

CHAIRMAN MURPHY: Thank you.

(Whereupon, Exhibit Numbers 4 and 5 were marked for identification and admitted into the record.)

CHAIRMAN MURPHY: Just a couple other items before we adjourn here today. If you would be kind enough to look in the packets of materials you were given, we have the update of the workgroups. I am told that that is accurate as we know today. But then again I see we’ll probably have to make some changes already based on some of the comments earlier.

The other thing I was asked to ask you folks to do is if you’ll notice, there were some workgroups where we have a couple of blanks in certain segments. If some of you would be kind enough to become involved in those, we would greatly appreciate it.

The other thing in your packet from NIOSH is a CD on trench safety awareness. I would highly recommend you take a look at it, it has some good stuff. One other item through the OSHA folks is this card. These are available. All you have to do is all the office, and Steven will help you out.

I guess what I’d like to do is ask before I adjourn the meeting if there is any other comments or questions.

Michael?

MR. THIBODEAUX: I would like to recommend that we establish a Fall Protection workgroup with ACCSH. I think 1996 was the last time that OSHA took a look at fall protection. It is one of the big four in construction. I know that there has been an alliance with NEHB and a number of associations looking at this.

I think that we as the ACCSH committee can utilize their things and their knowledge that they’ve gleaned over the last year, and some of the things that we know about from our own experiences, and look at the current standards, the new technology that there is for fall protection to protect workers, and training and education that’s going on and maybe make some recommendations to OSHA that could help protect folks in the construction industry.

MR. SWANSON: Mr. Chairman, may I?

CHAIRMAN MURPHY: Yes.

MR. SWANSON: I don’t think this calls for any committee action. The Chair can set up another workgroup if it so decides. Maybe we’ll leave that up to the regular Chair, unless Mr. Murphy would care to exercise that authority today.

Point of clarification, though. Are you talking about fall protection in the construction industry? Or are you speaking of fall protection in the residential construction?

MR. THIBODEAUX: Well, obviously I represent the residential, and obviously I’m looking at that more than generally in the construction industry, because there are some issues in the homebuilding industry as far as fall protection and better ways to do it that I don’t think the standards address right now.

MR. SWANSON: Surprisingly, I have heard rumors of that myself. It has come to my attention that Mr. Kavicky from the Carpenters would like to be on that committee with you. I throw that comment out for discussion, if anyone would like to have any discussion.

I would take your name and Mr. Kavicky’s name, share it with Mr. Krul and ask that he establish such a workgroup immediately so that you can work between now and the next meeting of ACCSH.

CHAIRMAN MURPHY: Scott?

MR. SCHNEIDER: Before we adjourn, I was hoping we would go to old business so that I could bring up a couple of things that have come up from the past. Is that okay? Is that in order now?

CHAIRMAN MURPHY: Sure, Scott.

MR. SCHNEIDER: Following up on Mike’s question about a fall protection workgroup, I know that ACCSH in the past has had a fall protection workgroup. I’m wondering, in the past couple of meetings we’ve asked that products from previous workgroups, workgroup reports be posted on the ACCSH website.

I would think it would be beneficial for any new workgroups that are set up to get all the information that was generated from the previous workgroups so they have that to start with as a base. So I would again reiterate my request that somehow the work products from previous ACCSH workgroups be posted on the ACCSH website.

Second, I would also like to ask hopefully before the next meeting if we could get some sort of update from OSHA on where the noise and hearing conservation and silica standards are. Being co-chairs of both of those workgroups and having heard nothing from the agency about what is happening with those standards, and knowing that a noise and hearing conservation standard was put on long-term action on the latest regulatory agenda, that raises my concern about how quickly those are proceeding.

I would like to get some update on the agency on where those are going and what we could do to speed up the process, or if they could work with this committee on getting that done.

At the last committee meeting, there was a request after we discussed the Hispanic Summit, we had a report from it, and we asked that, or this committee voted, I think it’s in the minutes, that there be future Hispanic Summits to follow up because of the success of the first one.

I don’t know if that is in the works, or being planned, or if there is any plans at all for follow up or subsequent summits. I was wondering if somebody in the agency could let us know about that. Maybe Bruce could comment on that at some point.

Lastly, I wanted to mention I did go to the hex chrome hearings last week at OSHA, and I wanted to give a brief sort of summary of what happened. On Wednesday of last week, there were several presentations from people in the construction industry, and on Thursday, folks in the building trades testified. We had a day of hearings essentially on hex chrome in the construction industry.

A lot of it focused on the need to cover portland cement, which was one of the recommendations from ACCSH. We discussed the ACCSH recommendations quite a bit and presented evidence. We did have several members come and testify. Two bricklayers, a cement mason, and a laborer talk about the extent of the problem in the industry and their particular individual stories about suffering with dermatitis problems, allergic dermatitis for 15, 20 years, and the lack of hand washing facilities on job sites.

I think it was very compelling testimony. I will note, and I guess that we can put this in the record, that ENR had an editorial this week about hex chrome and the possibilities of having a rule, and in particular the possibility of this question of adding ferrous sulfate to the portland cement to reduce hex chrome content, which is now mandated in Europe as of January 17th of this year.

So I think it was a very interesting and fruitful hearing. I guess we can all look forward to the transcripts and see what OSHA does next January when the final rule is going to come out. So I just wanted to update people on that.

CHAIRMAN MURPHY: Thank you, Scott.

We did note your request, and I’ll make sure that the Chair and Mr. Swanson and I talk about that.

Michael?

MR. HAYSLIP: Briefly, point of clarification. Since I’m new, this is my second meeting, is it true as Mr. Schneider points out, that the ACCSH committee supports regulation of portland cement in the construction industry? Did ACCSH recommend that? I heard you. I wanted to confirm that.

CHAIRMAN MURPHY: Yes. Other comments? Concerns? Yes?

MR. HAYSLIP: I have one or two. With regards to the safety tips, in particular this excavation such, I would strongly encourage that those that have the ability to create this noble work product would pass it before the ACCSH committee or the relevant workgroup that covers excavations before it becomes published. That’s all I have for that.

Let me clarify. With regards to the safety tips, I would like to have seen the final, finished work product. Besides the products that led to this, I would have liked to have seen this before it hit the streets.

CHAIRMAN MURPHY: I think we understand. Bruce said that’s not an issue to pass the finished product, correct?

MR. SWANSON: You’re right, Mr. Chairman. It is not a problem, because this has already been published and released, and it’s gone. So it is not a problem anymore.

I too would have liked to have seen this before it hit the streets. This did not come out of my shop. We participated in a draft. We helped them with the draft. They took our draft and produced this out of it and put it on the street. I can share your pain.

MR. HAYSLIP: Yes, sir. On the possible reduction or elimination of the Susan Harwood grants, it seems unfortunate. No further comment.

With regards to procedural matters, I’d like to commend officially and put on the record Sarah’s work. She’s been very good about keeping us in line. It is a little difficult with us, getting the procedures straight. I’d like to applaud her on that. Also I’d like to put on the record Veneta’s work also. My experience with her has been very timely, professional, and accurate. That’s a good thing, government or not. Even in business, it is commendable. Her staff, I can tell firsthand, does a great job. They call me at home, they get my personal attention, immediate results. I’d like someone to know that, and I want to put it on the record.

CHAIRMAN MURPHY: Thank you, Michael.

Any other comments before adjournment?

MR. WILTSHIRE: Are we going to set a meeting date, Dan, for the next time?

MS. SHORTALL: Mr. Chair, as people are looking at their calendars, I would like to take care of a couple of housekeeping items.

I would request that the draft of the confined spaces in construction regulatory text that was given to members today be entered into the record as Exhibit 1. That the OSSC presentation materials at the ACCSH meeting from the Steel Coalition be entered as Exhibit 2, and that the NIOSH presentation and hard copy of their slide presentation be entered as Exhibit 3.

CHAIRMAN MURPHY: Okay.

(Whereupon, Exhibit Numbers 1 through 3 were marked for evidence and admitted into the record.)

CHAIRMAN MURPHY: I guess if we could try to shoot for a date in May that would work for everyone. Towards the end of May, a date.

MR. SCHNEIDER: I just wanted to note that the third week in May would be difficult for me. I know the Industrial Hygiene Association is having a meeting in Anaheim, and Greg and I are supposed to be doing a workshop on the 25th of May on trenching.

MR. WILTSHIRE: Dan, I would also comment that the third week doesn’t work for me also, because I have something going on. But the first or second is wide open.

MR. SCHNEIDER: You’re talking about the week of the 23rd?

MR. WILTSHIRE: The week of the 16th.

MR. SCHNEIDER: The week of the 23rd is the week that we’re booked.

MR. SMITH: Could we ask OSHA to give us some suggested dates in May, and then have us respond by e-mail?

CHAIRMAN MURPHY: Linwood, I think that would make life a little bit easier. We’ll zero in on a week or a couple of days, and then we just say yea or nay, that we can make it that week or that day.

If Bruce’s shop would be kind enough to do that, it would make life a lot easier.

MR. SWANSON: I’d be happy to do it.

CHAIRMAN MURPHY: If there is no further discussion, I would like to thank everyone for participating here today. I would like to thank the folks from OSHA for helping us throughout the day to set this program up.

As an aside, I would just like to thank Tom Broderick for his program this week. It sounds like we impacted about 1,200 people this week from a safety and health perspective, and that’s really a good thing. So I really appreciate all his work.

So with that, I’d like to entertain a motion to adjourn.

MS. SHORTALL: Mr. Chair, prior to your entertainment of a motion, did you receive any requests from the public to make comments? For the record, there were no requests.

CHAIRMAN MURPHY: Right.

MR. HAYSLIP: Motion.

MS. ESTILL: Second.

CHAIRMAN MURPHY: Thank you. All in favor?

(A chorus of ayes.)

(Whereupon, the meeting was adjourned at 1:07 p.m.)

C E R T I F I C A T E

This is to certify that the foregoing of the Advisory Committee on Construction Safety and Health (ACCSH) before Acting Chair Daniel Murphy, held on Thursday, February 17, 2005, were transcribed as herein appears, and this is the original of transcript thereof.

_______________________________

Lisa L. Dennis

Certified Verbatim Reporter