Advisory Committee on Construction Safety and Health (ACCSH)
Minutes of May 23-24, 2013 Meeting

U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, N.W.
Washington, DC 20210

The meeting of the Advisory Committee on Construction Safety and Health (ACCSH) was called to order by Chairman Erich J. (Pete) Stafford at 10 a.m., Thursday, May 23, 2013. The following members and OSHA staff were present (^* mark members who participated via teleconference):

Thursday, May 23, 2013

Opening Remarks

Chairman Stafford welcomed the attendees and provided an overview of the meeting agenda. Chairman Stafford informed the audience that if they wanted to address the committee, they must sign up to be recognized during the public comment period at the conclusion of each discussion.

Assistant Secretary for Occupational Safety and Health - Dr. David Michaels:

Dr. Michaels began by welcoming our new and continuing ACCSH members. He highlighted how the Department of Labor has benefited greatly from the advice the committee has provided. Construction fatalities continue to be at unacceptable levels, so we’re looking for ways to reduce them. The two areas Dr. Michaels provided the committee an update on were protecting temporary workers and the strengthening whistleblower protections.

Temporary Workers: Dr. Michaels pointed out that in the past few months there have been many reports of temporary workers suffering serious or fatal injuries ... sometimes on the first day on the job. One was at the Bacardi bottling company where a 21 year old temporary worker was crushed to death. His first day on the job was his last day on earth. Many of the other workers who died on their first day at work were doing construction work. Deficiencies in training have surfaced as key components in those fatalities.

Dr. Michaels went on to brief the group on new initiatives OSHA has implemented that requires our CSHOs to look at what training people are getting. Temporary workers are entitled to the same protections as any other worker. Dr. Michaels ended by challenging the committee to engage this initiative and share their thoughts on temporary workers and how this applies to the construction industry.

Whistleblower Protection: Dr. Michaels stressed that strengthening whistleblower protection is another important area that the Agency is focused on. Since 2005, the total number of whistleblower complaints has increased from 1900 to 2800 per year. Dr. Michaels shared these initiatives OSHA has taken in response to the increase in complaints:

• Established a Whistleblower Protection Advisory Committee that can provide the Agency advice on how to improve our whistleblower activities. One of the areas they are currently focusing on is ... How can we change the culture in the workplace to get employers to think of workers who raise concerns as individuals who can help their company rather than the ones who are in the way.
• Established the Directorate of Whistleblower Protection Programs, headed by an SES who has extensive experience, not just in the area of labor and employment, but specifically on whistleblower issues.

For a full account of Dr. Michaels’ presentation, refer to page 18 (Line 19) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Directorate of Construction Regulatory Update - Mr. Jim Maddux, Director

Mr. Maddux began by welcoming and congratulating the continuing and new members of ACCSH. He thanked them for all for all that they do in support of construction worker safety. Mr. Maddux pointed out that three of the SIP IV candidates being discussed during this meeting (proper PPE fit, tunneling decompression tables, and an update for the Manual of Uniform Traffic Control Devices) were all recommendations made by this Committee.

Regulatory Update:

• The standard to include underground in demolition work under the crane standard has been completed. This eliminates the old crane standard which we had codified as Subpart DD.
• The final rule implementing the Digger Derrick settlement agreement we made with EEI is approaching completion.

Mr. Maddux highlighted that one of the areas this Committee will discuss during this meeting is working on several more of the elements that will be included in a corrections and amendments standard to the crane standard. One of these is the proposal to extend the dates to implement operator certification, along with the interim requirements that we have in place right now, that employers continue to ensure their operators are qualified. The Agency is hoping to use this three-year extension to give us the needed time to reexamine these issues of certification, including certification by type and capacity, and more importantly, the proper way to ensure that crane operators are qualified to do the work they do.

Mr. Maddux closed his update by highlighting that OSHA is continuing to work on the confined space standard and it should get into clearance pretty soon.

For a full account of Mr. Maddux’s DOC Regulatory Update, refer to page 42 (Line 15) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Crane Amendments- Nationally Recognized Testing Laboratory (NRTL) Approved Equipment and Crane Operator Certification
Mr. Paul Bolon - Directorate of Construction - Office of Construction Standards and Guidance

Mr. Bolon - The first item that we are dealing with is the Nationally Recognized Testing Laboratory (NRTL) approved equipment requirement in the standard. The final crane standard permits use of NRTL approved equipment, such as proximity alarms and insulating links, as options for additional safety while working around overhead power lines. In fact, in one provision, insulating links are a requirement when working very close to power lines. The issue here in that there was no proximity alarm or insulating links that had been listed, labeled or accepted by a nationally recognized testing laboratory RTL available when the standard was issued.

To accommodate the absence of compliant devices, Mr. Bolon said the Agency is proposing to revise the standard to permit employers either to: 1) use an NRTL listed or labeled or accepted device, which is an option they can use when they become available; or, 2) they can use a device that is not NRTL listed, labeled or accepted in conjunction with another means of insulating or guarding workers from the equipment, the load or load line.

The next topic in Bolon’s presentation was crane operator certification. This item is separate from the crane amendments. Mr. Bolon said, in order to avoid disruption to the industry and also to initiate a new rulemaking basically on what “qualification” is, the Agency is proposing to extend the November 2014 dates requiring operator certification by three years.

Motions to recommend actions on these issues were postponed until Friday, May 24, 2013, to allow the committee an opportunity to hear comments from the Public before deliberating.

For a full account of Mr. Bolon’s presentation, refer to page 56 (Line 10) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Standards Improvement Project (SIP) IV Candidates
Remove requirements for chest X-rays in certain health standards, such as cadmium and inorganic arsenic, that may affect construction employees
Permit digital storage of X-rays (not just film)
Mr. Chris Brown and Ms. Rebecca Reindel - Directorate of Standards and Guidance

Cadmium and Inorganic Arsenic Exposure:
Mr. Brown - OSHA is proposing to remove the lung cancer screening requirements using chest x-ray for two standards that affect the construction industry, 29 CFR 1926.1127, Cadmium and 29 CFR 1926.1118, Inorganic Arsenic. Both of them are detectable by other screening tools not involving chest x-rays such as pulmonary function testing, physical exams as part of medical screening, and other techniques. The cadmium standard for construction affects about 3,750 workers. The inorganic arsenic standard affects about 157 workers.

Digital storage of X-rays
Ms. Reindel - OSHA is proposing to permit the use of digital radiography imaging in addition to the traditional x-ray requirement in 29 CFR 1926.1101, Asbestos. This would allow equivalent diagnostic studies in place of traditional chest x-ray requirements where appropriate.

Mr. Matt Gillen - NIOSH Comments - Mr. Gillen suggested that a question to consider for standards involving lung carcinogens is whether removing the chest x-ray requirement would leave workers in positions without an imaging substitute for baseline testing. Even with known limitations, chest x-rays serve to document the absence of diseases. Mr. Gillen also shared that NIOSH is not aware of any other currently available equivalent diagnostic studies that have been shown to be an effective screening tool for lung cancer in non-smoking workers potentially exposed to lung carcinogens. He also suggested that OSHA should word the proposed SIP IV language regarding the deletion of chest x-ray information in the recordkeeping requirements carefully to ensure they apply only to new records. OSHA would not want to inadvertently suggest that existing Legacy records no longer need to be retained. Mr. Gillen closed by saying that NIOSH is available for additional discussions about these issues as OSHA makes their decisions on these proposals.

For a full account of Mr. Brown and Ms. Reindel’s presentation, refer to page 73 (Line 16) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

SIP IV Candidate - Revise the construction personal protective equipment (PPE) standards to make clear the requirement that equipment must fit each employee
Mr. Paul Bolon and Mr. Dayton Eckerson - Directorate of Construction - Office of Construction Standards and Guidance

Mr. Bolon - OSHA is proposing to include language in § 29 CFR 1926.95(c) that would require employers to ensure that PPE fit properly.

Mr. Matt Gillen - NIOSH Comments - Mr. Gillen shared that NIOSH’s subject matter experts, in their National Personal Protective Technology Lab, felt selection is an important issue also. In addition to fit, suitability for the hazard, especially when it comes down to respirators, was also important. They suggested OSHA gives some consideration to the definition of suitable in § 29 CFR 1926.32(s) and modify the language of the proposal to say “ensure it is suitable, meaning that it fits and has the qualities or qualifications to meet a given purpose, occasion, condition, function, or circumstance.”

SIP IV Candidate - Remove the requirement for certification of training in 29 CFR Part 1926, Subpart M, Fall Protection
Mr. Paul Bolon and Mr. Dayton Eckerson - Directorate of Construction - Office of Construction Standards and Guidance

Mr. Bolon - OSHA is proposing the removal of the training certification requirement from 29 CFR Part 1926, Subpart M. The Agency has removed the requirement for written certifications from its standards in a recent standard improvement project (76 Federal Register 33590; June 8, 2011). The Agency preliminarily concludes that removing the certification-for-training requirement from Subpart M will eliminate significant employer burden without reducing employee protection.

A robust discussion ensued, led by Chairman Stafford, which did not support the Agency’s position on this issue. Overwhelmingly, the committee members felt that when it came to fall protection, documentation of training was essential to worker safety. A key argument presented highlighted the fact that if a worker fell and survived, a CSHO could interview the worker and possibly verify if training had been given. But if the worker died as the result of the fall, how would training be verified. The discussion ended with the following recommendation submitted to the Agency:

Motion:
Mr. Bethancourt moved that ACCSH recommend OSHA delete from the SIP IV proposed rule the proposal to remove the requirement for certification of training in 29 CFR Part 1926 subpart M, Fall Protection. The motion was seconded and passed unanimously.

For a full account of Mr. Bolon and Mr. Eckerson’s presentation, refer to page 86 (Line 7) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Public Comments:

Mr. Arthur Sapper, Crane Power Line Safety Organization

Mr. Sapper said his organization is concerned with the safety of employees who work near power lines and has advocated the use and improvement of things like proximity alarms and insulating links. Mr. Sapper urged the Committee to not approve OSHA's proposed amendments to the insulating link requirements of the crane standards.

For a full account of Mr. Sapper’s comments refer to page 107 (Line 21) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Mr. Lance Burney, Sigalarm

Mr. Burney stated that he came here publicly to put on the record the unintentional negative consequences resulting from the unnecessary additional burden placed on Sigalarm and its primary core product line of devices known as “proximity alarms.” He was also very concerned that there is a lack of safety out there for the workers right now. Mr. Sapper asked the committee to reconsider the current requirements.

For a full account of Mr. Burney’s comments refer, to page 114 (Line 8) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Mr. Nigel Ellis, Ellis Fall Safety Solutions

Mr. Ellis provided a presentation on a study he was conducting on three-point control for preventing falls. He asked that ACCSH study the industries affected and make recommendations to OSHA about design safety of handholds including rungs.

For a full account of Mr. Ellis’s comments, refer to page 122 (Line 3) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Mr. Rich Gottwald, International Sign Association

Mr. Gottwald wanted to comment on the motion to extend the certification date out three years. He expressed his concerns of the impact extending the certification date would have on the sign industry that’s made up of mostly small businesses.

For a full account of Mr. Gottwald’s comments, refer to page 125 (Line 12) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Mr. Graham Brent, National Commission for the Certification of Crane Operators, NCCCO

Mr. Graham provided a presentation that highlighted their organization’s difference with the current OSHA position on crane operator certification and the proposed extension of the date. In the end Mr. Graham informed the Chair his organization would reluctantly support the Committee in its deliberations to approve the motion to extend the deadline.

For a full account of Mr. Graham’s comments, refer to page 128 (Line 14) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Mr. Jim Tomaseski, International Brotherhood of Electrical Workers (IBEW)

Mr. Tomaseski addressed the Committee on two issues; 1) crane operator certification compliance date and; 2) the insulating links' issue. Mr. Tomaseski stated that the IBEW agrees with the need to do something about the 2014 compliance date, but did not necessarily agree with the proposed three year extension. He thought the most appropriate way to proceed would be to not establish a compliance date until the rulemaking is finished, and then establish a compliance date at that point. On the insulating links issue, Mr. Tomaseski stated that you can be a little bit innovative on how to protect workers on the ground, not just with rubber gloves. Rubber gloves have defined limitations, depending upon the class of rubber insulating gloves that you have, you pretty much cannot insulate over 35,000 volts.

For a full account of Mr. Thomaseski’s comments, refer to page 133 (Line 7) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Mr. Dan Glucksman, International Safety Equipment Association

Mr. Glucksman said that, even though the discussion on PPE fit was focused on women, he wanted to ensure that the issue of PPE fit included all sizes ... even small men.

For a full account of Mr. Glucksman’s comments, refer to page 138 (Line 8) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Ms. Debbie Dickinson, Crane Institute Certification (CIC)

Ms. Dickinson addressed the Committee on the cost of re-certification. She stated that the cost was in the hundreds of dollars, not the thousands as previously implied. She is concerned that more time is spent talking about the financial impact than talking about the safety impact.

For a full account of Ms. Dickinson’s comments, refer to page 139 (Line 19) of the May 23, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Chairman Stafford adjourned the meeting for the day at 12:48 p.m.

Friday, May 24, 2013

Chairman Stafford reconvened the ACCSH meeting at 10:02 a.m., Friday, May 24, 2013.

Chairman Stafford - The first thing on the agenda is for the Committee to provide recommendation to OSHA on a couple of items based on our discussion yesterday.

Motion:

Chairman Stafford moved that ACCSH recommend to OSHA that the crane operator training requirement, due to take effect on November 10, 2014, be suspended until such time that OSHA completes its rulemaking on crane operator certification, including opening the record, to clarify third party certification and employer training and qualification requirements while keeping in place existing employer duties to ensure operator qualifications. Pete Stafford further moved that ACCSH recommend OSHA require employers to follow the existing phase-in criteria in the interim. The motion was seconded and passed unanimously.

Motion:

Chairman Stafford moved that ACCSH recommend OSHA proceed with the amendment to the crane standard on NRTL-approved equipment and incorporate into that rulemaking docket the record from this ACCSH meeting. The motion was seconded and passed unanimously.

Motion:

Chairman Stafford moved that ACCSH recommend OSHA consult with NIOSH before ACCSH considers recommending to OSHA that the Agency remove requirements for chest X-rays in certain OSHA standards affecting construction workers or permit digital storage of X-rays as part of the SIP IV rulemaking. The motion was seconded and passed unanimously.

Discussion of the two hour Introduction to the OSHA 10 Hour and 30 Hour Training Courses
Mr. Kevin Cannon and Mr. Roger Erickson, Training and Outreach Workgroup Co-Chairs

The Co-Chairs briefed the Committee on the actions of the Workgroup thus far. Specifically, they were looking at ways to reduce the Intro module down from two to one hour to allow additional time to focus on hazard specific areas. The workgroup was tasked to evaluate the OSHA 10-Hour Introduction module and come back to the Committee with a recommendation on what the module should include.

For a full account of Mr. Cannon and Mr. Erickson’s presentation, refer to page 40 (Line 19) of the May 24, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Occupational exposure to Beryllium
Mr. David Valiante, Directorate of Standards and Guidance

Mr. Valiante provided the Committee an update on the status of OSHA's Notice of Proposed Rulemaking for Beryllium. He said the draft proposed standard has already been presented for SBREFA review. Soon the proposal standard will be presented to ACCSH for an official recommendation.

For a full account of Mr. Valiante’s presentation, refer to page 64 (Line 6) of the May 24, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

SIP IV Candidate - Alternatives to the Decompression Tables in Subpart S - Underground Construction, Caissons, Cofferdams and Compressed Air
Mr. Paul Bolon and Mr. Vernon Preston - Directorate of Construction - Office of Construction Standards and Guidance

Mr. Preston - The Agency is proposing to update the decompression tables in Subpart S to tables that the industry currently uses. These tables have also been approved for use in the variance process via an interim order. Mr. Preston said the proposal is to remove the current tables that we have in the OSHA standards and replace with a few different tables that were mentioned in the comments we received to the SIP's RFI. Those tables would be the Eric Kindwall tables, the British decompression tables, the French decompression tables, the German decompression tables, and the Brazilian decompression tables. The idea of including all of these different tables was to give employers the option of using the tables they might be more comfortable with. Mr. Preston did highlight that the Agency was still researching the availability of these tables and whether we would actually add them to our current regulations, and if there would be any copyright or any other legal issues that we might run into.

Mr. Stribling expressed his support of the Agency’s efforts to update the standard. However, he suggested the Committee not offer an official recommendation until the Agency has an opportunity to work through the possible availability, legal and copyrighting concerns. The Agency agreed to research these issues further and bring this proposal back to ACCSH for their recommendation.

For a full account of Mr. Bolon and Mr. Preston’s presentation, refer to page 74 (Line 11) of the May 24, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

SIP IV Candidate - Update the incorporation by reference of the Manual of Uniform Traffic Control Devices (MUTCD)

Mr. Paul Bolon and Mr. Blake Skogland - Directorate of Construction - Office of Construction Standards and Guidance

Mr. Skogland - The Agency is proposing the incorporation by reference the 2009 version of the Manual of Uniform Traffic Control Devices (MUTCD) to update current OSHA standards. This update would include the two May 2012 revisions.

Mr. Rivera expressed his concerns over availability/access of the 2009 version of the MUTCD to small contractors.

Mr. Skogland informed the Committee that it is available on the OSHA website on DOT's website under the Federal Highway Administration.

Motion:

Mr. Bethancourt moved that ACCSH recommend OSHA include the updates in the 2009 Manual of Uniform Traffic Control Devices (MUTCD) in the SIP IV rulemaking. The motion was seconded and passed unanimously.

For a full account of Mr. Bolon and Mr. Skogland’s presentation, refer to page 82 (Line 15) of the May 24, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Discussion of the draft Federal Agency Procurement Construction Health and Safety Checklist

Chairman Stafford - Dr. Michaels challenged us to take a look at this issue, so the I2P2 work group has gone down the path of developing a procurement checklist for our procurement officers and for contractors bidding on Federal Government work. The checklist will help them take a stronger look at potential contractor’s qualifications with respect to safety and health. We have talked about ACCSH possibly recommending to OSHA that the checklist be presented in conjunction with a Presidential Executive Order, basically saying that the Federal Government is going to pick it up in terms of occupational safety and health in the construction industry and do a more adequate job in qualifying contractors and considering safety and health.

For a full account of the discussion on the draft Federal Agency Procurement Construction Health and Safety Checklist, refer to page 105 (Line 2) of the May 24, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Public Comments

Ms. LaTonya James-Rouse, Assistant General Counsel, American Staffing Association (ASA)

Ms. James-Rouse said that ASA has developed a very good working relationship with the agency and have recently met with OSHA to further the interests and to protect temporary employees. ASA supports additional efforts, including the establishment of the workgroup, to further enhance and protect the temporary employee welfare. When asked who was responsible for the safety training of temporary workers, Ms. James-Rouse replied “ASA thinks there is a shared responsibility between the staffing firm and the clients where the temporary employees are being assigned.”

For a full account of Ms. James-Rouse’s comments, refer to page 118 (Line 17) of the May 24, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Ms. Lisa London, University of Texas at Arlington

Ms. London told the Committee that her organization serves as a resource to Federal OSHA, and they are willing to serve as a resource to the ACCSH Training and Outreach work group as well. She shared information on several of the projects her organization was engaged in that lined up with the efforts of the work group i.e., OSHA 10 and 30 hour courses; OSHA 502; etc.

For a full account of Ms. London’s comments, refer to page 121 (Line 11) of the May 24, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Mr. Francisco Trujillo, Miller & Long Concrete Construction

Mr. Trujillo wanted to address the Committee on the Federal Agency procurement discussion. He felt if areas such as EMRs, OSHA citations, accident rates, and JHAs were used as evaluation criteria, they could be manipulated and some potential contractors could be unfairly disqualified.

For a full account of Mr. Trujillo’s comments, refer to page 130 (Line 22) of the May 24, 2013 meeting transcript, in Docket - OSHA-2013-0006 at http://www.regulations.gov.

Chairman Stafford thanked everyone for their participation and then adjourned the meeting at 12:50 p.m.