Tales from DC: December 15 ACCSH Meeting

From the Law Offices of Adele Abrams, ASSE’s Federal Representative –

OSHA held a meeting of the Advisory Committee on Construction Safety and Health (ACCSH) from Dec.13-16, 2011, in Washington, D.C.  The Law Office represented ASSE at the portion held on Dec. 15^th.  The agenda included an update on OSHA’s construction enforcement and outreach efforts, rulemaking projects, a presentation from the Seattle Tunnel and Rail Team (START); ACCSH’s consideration of, and recommendations on a direct final rule/proposed rule to update personal protective equipment standards on head protection for construction work and a proposed rule on Standards Improvement Project (SIP) IV; and a presentation from the Office Engineering Services on sewage treatment plant failure. The transcript and exhibits will be available under Docket OSHA 2011-0124.

1. Presentations on Dec. 15th
2. Assistant Secretary of Labor for OSHA – Dr. Michaels.

Dr. Michaels presented significant statistical information for the period of 2007 to 2011. In the area of inspections OSHA has remained at the same level although there is a slightly larger inspectorate. Programmed versus unprogrammed inspections have increased. Inspectors are not sent to all complaints, but about a 1% increase has occurred. The percentage of construction inspections has decreased from 60% to 56 % because of other areas being emphasized.

Next, Dr. Michaels discussed the changes to the penalty calculations. This is the most significant change for the Agency. Serious violations are calculated differently whereby there has been an increase in the average penalty, from $900 in 2007 to $2,100 in 2011. OSHA will make modifications for size and good faith, but penalty amounts have essentially doubled. Dr. Michaels stated that OSHA’s penalty amounts are lower than most other Agencies and the increase was justified based on the violations. Although the penalty amounts have increased, OSHA has not experienced an increase in contestment by businesses. In addition, OSHA will try to attempt to establish payment plans for businesses and the regional staff has authority to settle cases.

The residential fall protection enforcement has begun. OSHA began to phase residential fall protection in through meetings with trade associations and unions in addition to educating businesses. Businesses are now on notice and will be cited. However, OSHA will give reductions to a company who in good faith did not understand the change whereby residential companies are no longer exempted from the rule.

A stakeholder meeting concerning noise in the workplace produced a promising consensus among stakeholders that more needs to be done to reduce noise exposure. OSHA would like company’s to reduce noise exposure by 3 dB. An interesting fact developed from the meeting whereby it was learned that European manufacturers are already “building quiet” machinery in response to European regulations. However, American manufacturers are not “building quiet” because the market and enforcement is not requiring it.

Heat illness is an important topic. There is no OSHA heat standard. Dozens of workers die each summer of heat illness. Over and over again young healthy men don’t hydrate well enough and they die. The simple fix is to is to drink water, rest, and seek shade. There is Smartphone application that is linked to the NOAA website that states what the heat index is and other weather data. If there is an extreme heat warning, then a message is sent form OSHA and NOAA.

Last, Dr. Michaels discussed an OSHA survey that is performed each year whereby OSHA sends eighty thousand letters to a random group of businesses requesting information on their injury and illness rates. Of these voluntary requests, OSHA receives about forty-eight thousand back. These letters are only sent to employers with high injury rates. OSHA notifies the businesses that they may be inspected because of rate. A control group has been established to determine whether these letters reduce injury and illness in these businesses by making them act proactively in preparation for inspection. The control groups are being tracked and the data will be assessed.

1. DOC Regulatory Update

The Directorate of Construction had several updates to provide. First, the average cost of carpenter falls from elevations has reached $98,000. However, wage replacement is less than medical care costs. Around $30,000 is allocated for indemnity benefits. Second, final rules on confined spaces, cranes and derricks in underground construction and demolition, cranes and derricks digger derrick exemption, and the cranes and derricks technical correction are in process. Third, in the pre-rule state are the modern records program, injury and illness prevention program, standards improvement project, and hard hat consensus standard. Dr. Michaels has tasked the DOC with improving data to decrease the lag time currently in place. OSHA data needs to be more “real time” such as economic data, like unemployment rates. Need to be in line with economic data reports that are monthly, not yearly. Fourth, there is tremendous effort in the residential fall protection area. Outreach has occurred through Q&A, fact sheets, residential fall protection guidance document in English and Spanish, and a narrated, Powerpoint presentation. Fifth, the DOC has mastered rolling out products for public consumption in conjunction with NIOSH.

1. Tunneling Presentation START

Seattle Tunnel and Rail Team (START) sent three representative to give a presentation on the various machines used in tunneling, the decompression processes and procedures, and how a standard guidance for their industry is necessary to alleviate the duplicate variances that are obtained repeatedly by individual projects. There have been significant medical and technological advances since the decompression tables were established. Further, decompression tables often apply to water compression, not to air or mixed compression that tunnelers face. Today, tunneling is performed with highly technical machines, teams of three people, precise planning, and contingency plans. In the past, when the Brooklyn bridge was built, multitudes of individuals were exposed through repeat dives. The standards are not in line with the changes in the procedures applied today. The START team wanted ACCSH to help develop a plan, educate OSHA and ACCSH about changes, and collaborate on making the guidance applicable to today’s tunneling procedures. For example, in Washington, women require a variance to be compressed. The standards need to be modernized.

1. NIOSH Update

NIOSH reported on two key activities: (1) integrating safety and health into green construction initiatives and (2) the fall protection campaign. Green building is increasing, but the sustainability concept doesn’t include safety and health. Worker risks are not being considered when developing green practices. NORA has reviewed the LEED credits program and is making recommendations on how LEED credits can consider safety and health modifications that protect workers and provide businesses LEED credits. Examples include developing roofs that are safe and green. Certain roofs are being developed with reflective materials that require more maintenance and others are having gardens placed on roofs that require maintenance. NORA wants to ensure the roofs are built with worker safety in mind since workers will have to access these roofs more often.

Next, NIOSH presented its efforts to spearhead a national campaign on construction worker fatalities from falls. Roof scaffolding and ladders account for most of the fatal falls in construction. Fall protection is also the most frequently cited serious violations. NIOSH formed work groups to examine falls from roofs, ladders, and scaffolds. In addition, the workgroup examined data from the European Union, reviewed existing campaigns on fall protection, interviewed subject matter experts, and identified the target audience. A campaign will build an arsenal to combat the issue.

NIOSH hired a social marketing expert to manage the focus group research. Eleven focus groups in three cities over a two week period occurred. The target audience is small construction contractors, primarily residential. Individuals include supervisors, foremans, and workers including Spanish and English speakers.

OSHA will focus on fall prevention in 2012 with a campaign that kicks off on Workers Memorial Day. The NIOSH committee is preparing draft materials for OSHA; an evaluation scheme, and outreach approaches to supplement OSHA’s plans.

Examples from the information shared in the focus group are concepts such as “experience is not enough,” “if you fall, they fall too” denoting families and the affect of a parent falling, and cartoon images of fall protection that were deemed ineffective. In the United Kingdom, a campaign called shattered lives says “simple mistakes can shatter lives” with the image of a human head crushed at the bottom.

The campaign will be national, launch on workers memorial day, and go through 2012.

1. Update on Direct Final Rule on Head Protection

There is a proposal to update the final rule on head protection. The rule would update the ANSI standards for construction and the rest of industry. In 2007, the Agency issued a proposal to update consensus standards except for construction. There was an informal rulemaking and it was questioned why construction was not included. The final rule occurred in 2009, the same year ANSI updated the standard. The update would replace the 1969 standard with three standards to allow a gradual transition for industry. The three standards that would control are 1997, 2003, and 2009. When a new standard is developed, say in 2014, the 1997 control would drop off. This ensures that businesses can stay compliant with the rule by complying with one of the last three standards issued.

1. Sewage Treatment Plant Failure In Tennessee

The collapse of a side wall at a sewage treatment plant whereby workers died and no one had notice of an impending collapse required significant effort from OSHA’s technical support. The flow equalization basis wall that was constructed in 1994 collapsed suddenly. OSHA determined that the structural design was satisfactory. However, the construction had deviated from the plan and used cold joints that corroded from the acidic water. The failure of the wall slowly occurred and spanned years. OSHA wrote an alert telling employers that walls with joints could decay and subsequently fail.

1. Workgroup Reports
2. Diversity , Multilingual Issues, Women In Construction Work Group Report

The diversity, multilingual issues, women in construction work group presented the first workgroup report. The workgroup discussed the progress of the women in construction website that is being developed and reported that the website is progressing. The primary outcome of the workgroup and accompanying motion established that ACCSH formally recommend to OSHA that the Agency create guidelines similar to California OSHA’s concerning separate bathroom facilities for men and women. Although the workgroup did not find the issue to be important enough for a rulemaking, the workgroup believes that the issue has been discussed for a long period and requires more formal guidance to be given to construction industry. The workgroup entered several exhibits into the record including: training aides, DVDs, the California OSHA lifting safer poster, the labor safety health alert, the laborers hazard alert for women, and a list of women in construction.

1. Injury & Illness / Prevention Through Design Workgroup Reports

The Injury & Illness Prevention Through Design Workgroup reported on several topics. First, they are investigating whether workers compensation insurers decrease rates if there is a program in place to prevent injuries. The insurers stated no, but they consider it a factor for assessing risk. Second, construction sites must be examined more aggressively. Since constructions sites are dynamic and changing continuously, there must be hazard analyses as part of pre-planning. A clear, open, and consistent line of communication is necessary. The group determined that the OSH Act is broad, and its intent is to promote occupational safety and health, not just enforcement. No one should lose site of this fact.

1. Emerging Issues / Health Hazards in Construction / Work Group Reports

            The emerging issues work group reported on two topics. First, plans are under way for a new website called silica safe. The site will provide a one stop, user friendly, website on silica safety and control in construction, address contractor and worker needs, examine bystander exposure, discuss respirator protection, provide videos on controls, and give workers the ability to provide positions on topics Second, the fatalities in the bathtub refinishing are high. Workers are overexposed to methylene chloride. Prior to 2000 there were few reported deaths, but there have been 12 to 16 fatalities since 2000. OSHA and NIOSH are developing a hazard alert. An option is to educate the stores that sell the product such as Home Depot on its dangers, or keep the product behind the counter.