[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
IS OSHA FAILING TO ADEQUATELY
ENFORCE CONSTRUCTION SAFETY RULES?
=======================================================================
HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 24, 2008
__________
Serial No. 110-98
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut [Vacancy]
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Sally Stroup, Republican Staff Director
C O N T E N T S
----------
Page
Hearing held on June 24, 2008.................................... 1
Statement of Members:
Altmire, Hon. Jason, a Representative in Congress from the
State of Pennsylvania, prepared statement of............... 71
McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member,
Committee on Education and Labor........................... 6
Prepared statement of.................................... 11
Additional submissions:
Article, ``Top City Crane Inspector Accused of Taking
Bribes,'' New York Times, June 7, 2008............. 6
Statement of Graham J. Brent, executive director,
National Commission for the Certification of Crane
Operators (NCCCO).................................. 9
Miller, Hon. George, Chairman, Committee on Education and
Labor...................................................... 1
Prepared statement of.................................... 3
Additional submissions:
Questions submitted to Mr. Foulke and their responses 65
Statement of Christopher Lee, OSHA Deputy Regional
Administrator, retired............................. 62
Statement of Joe Standley, president, District
Council of Iron Workers, California and Vicinity... 64
Porter, Hon. Jon C., a Representative in Congress from the
State of Nevada, prepared statement of..................... 71
Statement of Witnesses:
Ayers, Mark H., president, building and construction trades
department, AFL-CIO........................................ 30
Prepared statement of.................................... 32
Cole, George, former ironworker.............................. 20
Prepared statement of.................................... 22
Foulke, Hon. Edwin G., Jr., Assistant Secretary, Occupational
Safety and Health Administration, U.S. Department of Labor. 13
Prepared statement of.................................... 15
Responses to questions for the record.................... 66
Kallmeyer, Mike, senior vice president for construction,
Denier Electric............................................ 27
Prepared statement of.................................... 28
LiMandri, Robert, acting buildings commissioner, City of New
York....................................................... 23
Prepared statement of.................................... 25
IS OSHA FAILING TO ADEQUATELY
ENFORCE CONSTRUCTION SAFETY RULES?
----------
Tuesday, June 24, 2008
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 10:04 a.m., in Room
2175, Rayburn House Office Building, Hon. George Miller
[chairman of the committee] presiding.
Present: Representatives Miller, Kildee, Woolsey, McCarthy,
Tierney, Kucinich, Holt, Davis of California, Grijalva, Bishop
of New York, Sanchez, Sarbanes, Loebsack, Yarmuth, Hare,
Clarke, Courtney, McKeon, Petri, Platts, Wilson, Kline, Kuhl,
Davis of Tennessee, and Walberg.
Staff Present: Aaron Albright, Press Secretary; Tylease,
Alli, Hearing Clerk; Jordan Barab, Senior Labor Policy Advisor;
Jody Calemine, Labor Policy Deputy Director; Fran-Victoria Cox,
Staff Attorney; Lynn Dondis, Policy Advisor, Subcommittee on
Workforce Protections; David Hartzler, Systems Administrator;
Brian Kennedy, General Counsel; Thomas Kiley, Communications
Director; Danielle Lee, Press/Outreach Assistant; Sara Lonardo,
Junior Legislative Associate, Labor; Alex Nock, Deputy Staff
Director; Joe Novotny, Chief Clerk; Rachel Racusen, Deputy
Communications Director; Meredith Regine, Junior Legislative
Associate, Labor; Michele Varnhagen, Labor Policy Director;
Mark Zuckerman, Staff Director; Robert Borden, Minority General
Counsel; Cameron Coursen, Minority Assistant Communications
Director; Ed Gilroy, Minority Director of Workforce Policy; Rob
Gregg, Minority Senior Legislative Assistant; Alexa Marrero,
Minority Communications Director; Jim Paretti, Minority
Workforce Policy Counsel; Molly McLaughlin Salmi, Minority
Deputy Director of Workforce Policy; Hannah Snoke, Minority
Legislative Assistant; Linda Stevens, Minority Chief Clerk/
Assistant to the General Counsel; Sally Stroup, Minority Staff
Director; and Loren Sweatt, Minority Professional Staff Member.
Chairman Miller. A quorum being present, the committee will
come to order.
And the purpose of this morning's hearing is to conduct an
oversight hearing on OSHA and enforcement of construction
safety rules. And at this point, I will yield to myself for
purposes of an opening statement.
Over the past few months, a number of catastrophic and well
publicized construction accidents have highlighted concerns
about whether government health and safety agencies are doing
enough to ensure safe working conditions at construction sites.
In New York, two massive construction crane collapses have
killed nine people, including one bystander.
In Las Vegas, over the last 19 months, 12 construction
workers have been killed in construction projects on the strip.
According to the Las Vegas Sun, more workers have died in the
city in the past 19 months than died during the entire 1990s
construction boom. An investigative series in the Las Vegas Sun
detailed circumstances behind the deaths on the strip,
including inadequate response from the Nevada Occupational
Safety and Health Administration.
As our witnesses will describe today construction is one of
the most dangerous industries for workers. On average, four
construction workers die on the job every day. Unfortunately,
most of these workers die one at a time, and their deaths do
not garner the same level of attention that the media gave to
the New York crane collapses.
There is no question that construction is an inherently
dangerous job, and there is no one who would argue with that.
The question is whether more can be done to prevent accidents
and to make the industry safer. We intend to begin to answer
that question today and explore ways to make the industry
safer.
We will examine whether or not the U.S. Occupational Safety
and Health Administration is doing everything it can to improve
safety at construction sites. This committee has repeatedly
raised serious concerns about OSHA's inability or unwillingness
to issue needed health and safety standards for a number of
different industries, and we have the same concern now about
the construction industry.
We will also examine today whether OSHA has sufficient
resources to do its job. In the boroughs of Manhattan and
Queens, for example, Federal OSHA has only 20 inspectors to
cover thousands of construction sites, and some of the
inspectors are new trainees. We have nothing but praise for the
dedication and work of those few valiant inspectors who perform
every day, but they are faced with an impossible task. The root
cause of that problem lies here in Washington.
We will also examine the role that cities can play in
making construction sites safer. Because of the lack of Federal
OSHA resources in the city, New York City decided to step in to
address the hazards the city's construction boom has presented.
The city reasoned that its actions not only protect workers but
also protect members of the public who may be walking, driving,
or living underneath a tower crane. By our count, and one of
our witnesses confirmed this today, the city has more than 20
times more inspectors on the ground than OSHA has.
While we commend New York City for its activity in this
area it is unclear whether other smaller cities have the same
ability to put resources into construction safety that New York
has. We also intend to examine today whether the Federal laws
as now written may actually discourage some States and cities
from maintaining their own programs to enforce workplace safety
rules unless there are overriding public safety concerns.
The State of Florida has tried to issue stronger
construction safety regulations on its own, but those efforts
were overturned by the courts because Federal OSHA regulations
preempt any State enforcement in States that do not have their
own occupational safety agencies.
Let me be clear, the U.S. Occupational Safety and Health
Administration is an agency responsible for workplace safety,
but workers must best be served by vigorous OSHA enforcement,
coupled with renewed efforts by States and cities to make
construction sites safer.
Finally, we will examine the enforcement tools that OSHA
has to ensure construction site safety. OSHA has the ability to
assess penalties against construction companies who violate the
law, but those penalties appear to be low and really low enough
to be considered just the cost of doing business. And they
usually assess long after the inspections occur.
Moreover, OSHA does not have the authority to shut down a
job site unless the agency can convince a judge that the site
presents an imminent danger. The city has the authority to
wield a much bigger stick. The New York Building Department has
the ability to shut down dangerous job sites at a moment's
notice potentially costing the contractor hundreds of thousands
of dollars a day. We will discuss today whether OSHA ought to
have the enhanced authority to shut down hazardous job sites
without first jumping through excessively time-consuming legal
hoops when workers' lives are on the line. These are not simple
issues, but they are issues of life and death, and they demand
the committee's attention. Today we will hear from the head of
OSHA, the president of the Building and Construction Trades
Department of the AFL-CIO, the acting director of the New York
Department of Buildings, and we will also hear from a former
ironworker and a contractor from Las Vegas who will speak to
the hazards workers faced during the building boom. He will
also address the personal loss that workers and families face
when a loved one is killed on the job.
I want to thank all of the witnesses for being here today,
and we look forward to your testimony and appreciate you giving
your time to the committee.
And with that, I would like to recognize the subcommittee
Chair, Ms. Woolsey from California, for the purposes of an
opening statement.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman, Committee on
Education and Labor
Over the past few months a number of catastrophic and well
publicized construction accidents has highlighted concerns about
whether government health and safety agencies are doing enough to
ensure safe working conditions at construction sites.
In New York, two massive construction crane collapses have killed
nine people, including one bystander.
In Las Vegas, over the last 19 months, 12 construction workers have
been killed in construction projects on the Strip. According to the Las
Vegas Sun, more workers have died in the city over the past 19 months
than died during the entire 1990s construction boom.
An investigative series by the Las Vegas Sun detailed the
circumstances behind the deaths on the Strip, including the inadequate
response from the Nevada Occupational Safety and Health Administration.
As our witnesses will describe today, construction is one of the
most dangerous industries for workers. On average, four construction
workers die on the job every day.
Unfortunately, most of these workers die one at a time and their
deaths do not garner the same level attention from the media that the
New York crane collapses did.
There's no question that construction is an inherently dangerous
job. No one here would argue with that.
The question is whether more can be done to prevent accidents and
make the industry safer. We intend to begin to answer that question
today, and to explore ways to make the industry safer.
We will examine whether the U.S. Occupational Safety and Health
Administration is doing everything it can to improve safety at
construction sites.
This Committee has repeatedly raised serious concerns about OSHA's
inability or unwillingness to issue needed health and safety standards
for a number of different industries. We have the same concern about
the construction industry.
We will also examine today whether OSHA has sufficient resources to
do its job. In the boroughs of Manhattan and Queens, for example,
federal OSHA has only 20 inspectors to cover thousands of construction
sites--and some of those inspectors are new trainees. We have nothing
but praise for the dedication and work that those few valiant
inspectors perform every day, but they are faced with an impossible
task, and the root cause of that problem lies here in Washington.
We will also examine the role that cities can play in making
construction sites safer.
Because of the lack of federal OSHA resources in the city, New York
City decided to step in to address the hazards that the city's
construction boom has presented. The city reasoned that its actions not
only protect workers, but also protect members of the public who may be
walking, driving or living underneath a tower crane.
By our count--and one of our witnesses can confirm this today--the
city has more than 20 times more inspectors on the ground than OSHA
has.
While we commend New York City for its activity in this area, it is
unclear whether other, smaller cities have the same ability to put
resources into construction safety that New York has.
We also intend to examine today whether federal law, as now
written, may actually discourage some states and cities from
maintaining their own programs to enforce workplace safety rules,
unless there are overriding public safety concerns.
The state of Florida has tried to issue stronger construction
safety regulations on its own. But those efforts were overturned by the
courts because federal OSHA regulations pre-empt any state enforcement
in states that do not have their own occupational safety agencies.
Let me be clear: The U.S. Occupational Safety and Health
Administration is the agency responsible for workplace safety. But
workers might be best served by vigorous OSHA enforcement coupled with
renewed efforts by states and cities to make construction sites safer.
Finally, we will examine the enforcement tools that OSHA has to
ensure construction site safety. OSHA has the ability to assess
penalties against construction companies that violate the law, but
those penalties are low--low enough to be considered just another cost
of doing business--and they are usually assessed long after an
inspection occurs.
Moreover, OSHA does not have the authority to shut down a job site
unless the agency can convince a judge that the site presents an
imminent danger.
A city has the authority to wield a much bigger stick. The New York
Buildings Department has the ability to shut down a dangerous job site
at a moment's notice, potentially costing a contractor hundreds of
thousands of dollars a day.
We will discuss today whether OSHA ought to have the enhanced
authority to shut down hazardous job sites without first jumping
through excessively time consuming legal hoops when workers lives are
on the line.
These are not simple issues, but they are life and death issues,
and they demand this Committee's attention.
Today we will hear from the head of OSHA, the president of the
Building and Construction Trades Department of the AFL-CIO and the
acting director of the New York Department of Buildings.
We will also hear from a former iron worker and contractor from Las
Vegas who will speak to the hazards that workers face during a building
boom. He will also address the personal loss that workers and families
face when one a loved one is killed on the job.
I thank all of our witnesses for being here today and I looked
forward to their testimony.
Thank you.
______
Ms. Woolsey. Thank you, Chairman Miller.
Thank you for holding this hearing on the recent crane and
construction accidents that have plagued many of this Nation's
construction workers, especially in big cities like New York
and Las Vegas.
As you noted, there is a building boom going on in those
cities. And while these booms bring many needed jobs to working
people, today we are going to examine the terrible price that
workers pay when their employers cut corners in a mad dash to
compete for and complete their projects. We are aware of the
large bonuses that contractors receive if they complete their
building projects by a certain date, particularly if they are
finished ahead of schedule. But in reverse, we know there are
equally large penalties that some contractors pay if projects
are late. With the almighty dollar ruling, it is not a surprise
that safety often comes last, and the real penalty falls on the
worker, the worker who is injured, or the worker who loses his
or her life.
This hearing will point out, it appears, once again, that
OSHA is failing to fulfill its mandate to keep workers in this
country safe and to keep them healthy. With the construction
industry that we are going to talk about today, the problem is
pretty obvious. First, OSHA has not updated its crane and
derrick standards since 1971. OSHA and other experts have long
realized that this standard is out of date. And in fact, in the
year 2003, OSHA began working on a new rule. Labor and
Management came together, and they produced a draft in the year
2004. But here we are, it is 2008, and OSHA hasn't issued its
proposed rule.
So we understand that the Department has sent the proposed
rules to the OMB, and we hope, Administrator Foulke, that you
are going to bring us some good news about that today about
publishing these badly needed regulations.
Also, the resources for construction jobs, the resources
for OSHA in general, such as staff and inspectors, to enforce
the health and safety rules at construction sites are woefully
inadequate. In fact, Federal OSHA, all of OSHA, has only 821
inspectors for the 29 States that don't have their own State
OSHA programs, and the 21 States with their own health and
safety programs have another 1,273 inspectors. This means that
there are a total of 2,094 inspectors for the 8 million work
sites in this country. Imagine that.
Finally, one reason for this low number of inspectors, I
believe, is that OSHA takes a good part of its budget from
enforcement and transfers those funds into unproven voluntary
programs and consultations for employers. If those were
working, we wouldn't be having an increase in accidents,
particularly in the construction industry.
But as Chairman Miller did note, New York City takes health
and safety seriously with its own inspectors. What we have to
look at today then is why New York City is having the number of
accidents that they have been having lately. But I do
congratulate the city on its diligence.
I share the chairman's concern that there are preemption
and other issues that we must examine very seriously and that
OSHA must be held accountable. Our workers are counting on us.
They need to be assured that they are going to work in a safe
place, that they will be safe and healthy, and they will be
able to return to their families every night and every evening
after they finish their jobs.
So thank you again, Mr. Chairman, and I look forward to the
hearing.
Chairman Miller. Thank you.
And now I would like to recognize Congressman McKeon, the
senior Republican on the committee, for the purpose of an
opening statement.
Mr. McKeon. Good morning Chairman Miller, members of the
committee and our panel of witnesses. We are here this morning
for a broad overview of OSHA's efforts to ensure worker safety
within the construction industry.
Given a number of recent high-profile crane accidents, I
expect that we will also look specifically at the crane and
derrick standard currently in place, as well as the pending
update to that standard that began with an OSHA-negotiated
rulemaking process in 2004. It is my understanding that OSHA
sent a proposal to revise and update the crane rule to the
Office of Management and Budget earlier this month for final
review and that we can expect to see final regulations in place
before the end of the year.
Media reports have shown the devastation that can occur
when construction equipment fails. As we have seen, this
problem has not been isolated in one area of the country but
has had consequences nationwide. Construction cranes, for
instance, are powerful tools in today's construction arena.
They are being built higher, can carry larger loads and, if
used properly, improve the efficiency of a construction
project. Cranes can eliminate many man hours for lifting and
moving supplies and materials on the job site. They can also be
among the most dangerous equipment for construction workers to
be around. Constant vigilance is vital when workers are moving
in and around functioning cranes.
Investigations into a number of recent crane accidents are
still under way, and I expect these investigations to provide
valuable information about how to prevent such tragedies in the
future. However, I am very troubled by allegations in the New
York Times that the city's chief crane inspector has been
accused of taking bribes to certify cranes as operational and
workers as having successfully passed licensing exams.
I request unanimous consent to include this article, dated
June 7, 2008, in the hearing record.
[The information follows:]
[From the New York Times, June 7, 2008]
Top City Crane Inspector Accused of Taking Bribes
By William K. Rashbaum
The city's chief crane inspector was arrested on Friday and charged
with taking bribes to allow cranes to pass inspection, the authorities
said. He was also accused of taking money from a crane company that
sought to ensure that its employees would pass the required licensing
exam.
The man, James Delayo, 60, the acting chief inspector for the
Cranes and Derricks Unit at the city's Department of Buildings, oversaw
the issuing of city licenses for crane operators. The case against him,
announced by the Manhattan district attorney's office and the city's
Department of Investigation, was filed just a week after the city's
second fatal crane collapse in less than three months.
Officials said the accusations against Mr. Delayo bore no direct
relation to the accident last week at 91st Street and First Avenue,
where two workers died, or the crane accident on East 51st Street that
left seven dead in March.
But the case was another blemish on a Buildings Department that has
been reeling from construction deaths and inspection lapses this year,
and for which deadly crane accidents are part of a lingering series of
problems.
The agency's commissioner resigned last month and Mayor Michael R.
Bloomberg has been struggling to find a replacement to run a department
that has long been plagued by corruption and where critics say an
underpaid, shorthanded staff of inspectors has been hard-pressed to
deal with the city's building boom.
``This is a case where greed trumps safety,'' said Daniel J.
Castleman, the chief assistant in the district attorney's office, which
is also investigating the crane collapse last week. ``With all the
construction going on in New York City and the fatal accidents of the
last few months, this type of conduct cannot and will not be
tolerated.''
Rose Gill Hearn, the commissioner of the Department of
Investigation, said in a statement that her office was working with
District Attorney Robert M. Morgenthau as part of a continuing inquiry
into corruption at the Buildings Department.
``D.O.I.'s investigation revealed the profoundly disturbing and
sobering realization that a senior inspector responsible for ensuring
that cranes operating in New York City are in proper condition and are
operated by qualified individuals is charged with selling out his own
integrity in a way that compromised public safety,'' Ms. Hearn said.
Mr. Delayo surrendered on Friday morning to investigators and was
arraigned in Criminal Court in Manhattan on a complaint that said he
had admitted on Thursday to receiving the bribes. He was released on
his own recognizance. A Buildings Department spokeswoman said he would
be suspended without pay.
The charges against Mr. Delayo include third-degree bribe-receiving
and first-degree tampering with public records, both felonies for which
he could face up to seven years in prison. Among the charges was the
accusation that he had provided a copy of the crane operator's exam to
a crane company, for which an official involved in the case said Mr.
Delayo was paid about $3,000. The official, who spoke on the condition
of anonymity because the investigation was continuing, said Mr. Delayo
also provided the answers.
As the chief inspector, Mr. Delayo had responsibility for
overseeing the inspection of all cranes, including tower cranes, the
type that collapsed in the two recent fatal accidents. The allegations
against Mr. Delayo made it easy on Friday for him to be seen as a
symbol for the failures that have plagued the Buildings Department for
years. In fact, as he made his way to a cab after court, he was
accosted by a street sweeper who dropped his broom and demanded to know
if he felt responsible for the crane collapse. He did not answer.
Mr. Delayo, whose Legal Aid lawyer said little that could be heard
during the arraignment, entered no plea during the proceeding before
Judge Abraham Clott of Criminal Court. Mr. Delayo, appearing slightly
hunched and wearing a white shirt with thin blue and brown stripes,
held his pants up, apparently because he had no belt on. Later, as he
left the building housing Mr. Morgenthau's office, he wore a red
bandanna as a makeshift belt.
Mayor Bloomberg, in a statement, said that he has ``zero
tolerance'' for corruption anywhere in his administration, and that
such conduct is ``is all the more deplorable'' in a public safety
agency like the Buildings Department.
``The Department of Buildings has made enormous strides in rooting
out corruption over the past six years, but this case underscores that
there remains more work to do,'' he said
Mr. Bloomberg, along with the City Council, on Wednesday announced
a legislative package aimed at broadening oversight at building sites.
But on Friday, the Manhattan borough president, Scott Stringer, who had
said that the measures proposed by the mayor and the Council did not go
far enough, called Mr. Delayo's arrest ``stunning and frightening.''
``The man in charge of issuing city licenses to crane operators has
been accused of years of taking bribes to license cranes he did not
inspect, and to license operators who did not pass a required test,''
Mr. Stringer said in a statement. ``Under the circumstances, before we
begin any new procedures to implement the administration's construction
reforms, we must have a top-to-bottom review of the Buildings
Department, its procedures and its personnel.''
The accusations against Mr. Delayo focus on smaller mobile cranes,
known as Class C cranes.
A 26-year veteran of the Buildings Department, Mr. Delayo took
bribes of ``a couple of hundred dollars'' in exchange for issuing
licenses to about half a dozen Class C crane operators, including once
to a man who did not even take the test, according to the criminal
complaint and the official involved in the case.
All of the operators worked for the company, Nu-Way Crane Service
of Copiague, N.Y., that paid for the test and the answers, said the
official. Investigators searched the offices of Nu-Way on Friday,
seizing computers and records, the official said. A crane inspector's
test was found there, but investigators were unsure if it was the one
Mr. Delayo was accused of providing.
A city official said that the Department of Buildings was
suspending approvals for the company's cranes to operate and was
evaluating the licenses issued to its operators.
Nu-Way did not respond to telephone messages left at the company's
offices. An official with the company served last year on the Buildings
Department's Cranes and Derricks Advisory Council.
The complaint said that on Thursday, Mr. Delayo admitted to Sadie
Lopez, an investigator with the Department of Investigation, to meeting
with and taking money from the owner and or employees of the crane
company ``on numerous occasions'' from 2002 to 2007.
The authorities also learned that Mr. Delayo signed off on the
annual inspection of between 20 and 30 Class C cranes without
conducting any examination in exchange for ``several hundred dollars''
apiece, the official said.
Mr. Delayo, who lives in the Bronx, was promoted to acting chief
inspector after the fatal crane accident in March. He makes $74,224 a
year.
In addition to the bribe-receiving and tampering with public
records counts, the complaint charged him with first-degree
falsification of business records and first degree offering a false
instrument for filing, both felonies, and receiving an unlawful
gratuity, a misdemeanor.
The Buildings Department issues licenses to crane operators who
work within the city, while state officials issue such licenses across
the rest of New York. Earlier this year, state officials reported
similar problems with the integrity of the process under which they
were granting licenses and said one longtime employee had approved 210
people for licenses despite their having failed the official exam,
although he took no money and was charged with no crime.
Daryl Khan, Colin Moynihan and Sharon Otterman contributed
reporting.
______
Chairman Miller. Without objection, so ordered.
Mr. McKeon. Construction is vital to economic growth, but
it is also an inherently dangerous industry. And that is why it
is so important that steps be taken to help mitigate the risks
and protect the workers. Because of the unique characteristics
of construction job sites and their associated dangers, OSHA
has put in place specific and extensive regulations directed at
the construction industry. I look forward to learning more
about those standards today.
We have before us a distinguished panel of experts,
including OSHA Administrator Foulke, who has taken over the
development of the crane regulation I mentioned earlier in the
midst of its development. I am hopeful he will provide us with
an update on the crane rulemaking that has been developed, as
well as the other specific safety standards applicable to the
construction industry. This hearing is an important first step
to examine safety protections for workers in the construction
industry with a particular emphasis on the crane accidents that
have drawn so much attention in recent months.
I anticipate that the conclusion of OSHA's investigations
will also help shape public policy on this important issue.
I would also request unanimous consent to include testimony
for the record from Mr. Graham Brent, executive director of the
National Commission for the Certification of Crane Operators.
When this hearing was originally scheduled we were notified
that it would focus exclusively on crane safety. Although the
scope of the hearing has been expanded, I believe the record
will be enhanced with the inclusion of Mr. Brent's testimony.
[The information follows:]
Prepared Statement of Graham J. Brent, Executive Director, National
Commission for the Certification of Crane Operators (NCCCO)
Good morning Mr. Chairman, and distinguished members of the House
Committee on Education and Labor. My name is Graham Brent and I am the
Executive Director of the National Commission for the Certification of
Crane Operators (NCCCO).
The National Commission for the Certification of Crane Operators
(NCCCO) was formed in January 1995 as a non profit organization to
develop effective performance standards for safe crane operation to
assist all segments of construction and general industry.
The establishment of NCCCO came in the aftermath of the San
Francisco tower crane collapse in 1989 which claimed five (5) lives and
foreshadowed the tragedies we have witnessed this year in New York,
Miami and elsewhere. The foundation of the CCO national crane operator
certification program by a dedicated team of industry experts over a
ten (10) year period reflected a genuine and earnest desire by the
industry most affected by such accidents to improve the safety of
lifting operations.
NCCCO's mission was--and remains today--to provide a thorough,
independent assessment of operator knowledge and skills and, thereby,
to enhance lifting equipment safety, reduce workplace risk, improve
performance records, stimulate training, and give due recognition to
the professional skill of crane operation.
The industry representatives who participate in NCCCO activities
represent such groups as: contractors, labor unions, rental firms,
owners, steel erectors, manufacturers, construction firms, training
consultants, and insurance companies. Since NCCCO began testing in
April 1996, over 325,000 written and practical exams have been
administered to more than 65,000 crane operators in all 50 states.
Mr. Chairman, as tragic as the recent incidents in New York and
Miami are, they need to be put in context. A recent survey (1) has
revealed that there are an estimated 3,000 tower cranes in the United
States, of which 2,100 might be in use at any one time. These tower
cranes perform in excess of 100,000 lifts per day safely and without
adverse consequence.
Nevertheless, the recent incidents we have witnessed are clearly
completely unacceptable. It's important to recognize that cranes, in
and of themselves, are not dangerous. In the hands of unqualified
personnel, however, they can become deadly instruments. This raises two
questions: #1 What personnel need to be qualified? And #2: How can that
qualification be determined?
To the first question, OSHA has an overarching, if non-specific,
requirement for all personnel engaged in the lifting operation to be
trained and qualified and/or competent to perform the task they are
assigned. This means the crane operator, to be sure. But it also
extends to the rigger (who rigs the load to be lifted), the
signalperson (who gives the operator verbal or visual instructions),
and the inspector (who verifies that the crane has been maintained and
erected correctly and in accordance with the manufacturer's
instructions).
In answer to the second question, ``how can that qualification be
determined?'', we believe that professionally developed and accredited
certification is the employers' and public's best assurance that the
required training has been given and, most importantly, that it has
been effective--that learning has, in fact, taken place.
Remarkably, however, only 15 states and five (5) cities require
crane operators to be certified or licensed. Only two (2) states
require crane inspectors to be licensed. And there are no state or
federal requirements for riggers to be licensed.
OSHA's regulations that govern the use of cranes have gone largely
unchanged since they were issued in the early 1970's. They reference an
American National Standard for cranes (ANSI B30.5) that was published
in 1968 and has been out of print and unavailable for years. In the
meantime, cranes have an undergone a technological evolution that has
transformed them into versatile and sophisticated pieces of machinery,
equipped in many cases with electronic control systems that would
challenge the skills of a commercial airline pilot.
This situation has to change. OSHA recognized that much when, in
the summer of 2003, it assembled 25 of the most qualified individuals
in the industry and put them to work over a 12-month period to revise
its outdated requirements. The Cranes and Derricks Advisory Committee
(C-DAC), meeting once per month over an 11 month period, completed its
work as requested, and delivered its report to the Department of Labor
in August 2004. It is, by all assessments a remarkable document,
developed in record time by industry experts without peer. To this
date, despite numerous industry protests, and a unanimous endorsement
for C-DAC's recommendations by OSHA's Advisory Committee on
Construction Safety and Health (ACCSH), OSHA has not issued a proposed
rule.
This rule needs to be published and implemented for many of the
reasons we are assembled here today. Among its widespread provisions
are accredited certification for crane operators, and heightened
training and qualification for signalpersons, two essential elements,
in our view, for improving safety on construction sites around the
nation.
Calls for such measures are widespread with the industry. Just last
week, a report (2) was published by the Center for Construction
Research and Training (CPWR) that analyzes Bureau of Labor Statistics
(BLS) data for 323 construction worker deaths attributable to crane
accidents between 1992 and 2006. It makes eight (8) recommendations.
No. 1 is for crane operators to be certified; no. 2 for riggers and
signalpersons to be certified; and no. 3 for crane inspectors to be
certified.
Mr. Chairman, reports have been released this year, in New York
State and more recently in New York City, that would imply the
existence of state and city exam design and administration that fall
well below acceptable standards. It is alleged that licenses have been
issued without appropriate candidate assessment that reflects
competency by an individual in the area being assessed. This is far
worse than no license at all, for it implies competency in an
individual when, in fact, a candidate may have failed a test or even
not have tested at all. Clearly, a testing instrument (such as a state
or city exam), must be beyond reproach in both its design and
administration for employers and the general public to have confidence
in the process.
In this context, I would draw your attention to the fact that
whenever I have talked this morning about ``certification'' I have done
so with the qualification of ``accredited certification.'' The
organization I represent believes it is critical that any third-party
certification body be subject to onsite audit of its policies and
procedures to ensure it has developed and continues to administer
written and practical examinations that are fair, valid and reliable.
Fortunately, there is a simple way for those who have a stake in
construction safety matters to ensure only professionally developed
certification is specified--and that is by ensuring that only
certification bodies whose programs have been accredited by the
American National Standards Institute (ANSI) are permitted to
administer certification assessments. ANSI has developed a compliance
program that meets the requirements of the ISO 17024 Requirements for
Bodies Operating Certification of Persons and is the only accrediting
body that requires onsite assessment of a certifying body as a
condition of accreditation.
In closing, Mr. Chairman, I would like to thank you and this
Committee for providing NCCCO an opportunity to present these
recommendations for improving safety on worksites wherever lifting
equipment is being used. NCCCO stands prepared to lend its expertise in
assisting this Committee to achieve that goal.
REFERENCES
Survey, May 2008, by the Specialized Carriers & Rigging Association
(SC&RA), 2750 Prosperity Avenue, Suite 620, Fairfax, VA 22031.
McCann, Michael, PhD, and Gittleman, Janie, PhD. Crane Related Deaths
in Construction and Recommendations for Their Prevention, The
Center for Construction Research and Training, June 2008. 301/
495-8525.
nccco program status june 2008
NCCCO ``BY THE NUMBERS'':
NO. EXAMS ADMINSTERED: 325,000+
NO. OF WRITTEN TEST ADMINISTRATIONS CONDUCTED: 5,000+
NO. OF PRACTICAL TEST SITES APPROVED: 1,700+
NO. OF CRANES APPROVED FOR PRACTICAL EXAM TESTING: 5,000+
NO. OF STATES IN WHICH TESTING HAS BEEN CONDUCTED: 50
CERTIFICATIONS AVAILABLE:
MOBILE CRANE OPERATOR
TOWER CRANE OPERATOR
OVERHEAD CRANE OPERATOR
RIGGER (2008)
SIGNALPERSON (2008)
ARTICULATING CRANE OPERATOR (2009)
ACCREDITATIONS:
AMERICAN NATIONAL STANDARDS INSTITUTE / ISO
NATIONAL COMMISSION FOR CERTIFYING AGENCIES
NATIONAL SKILL STANDARDS BOARD
FEDERAL RECOGNITION:
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION
DEPARTMENT OF ENERGY
OFFICIAL APPROVAL:
DEPARTMENT OF EDUCATION
DEPARTMENT OF DEFENSE
DEPARTMENT OF VETERANS AFFAIRS
STATES ADOPTING CCO PROGRAM:
WEST VIRGINIA (2001)
HAWAII (2003)
NEW JERSEY (2004)
CALIFORNIA (2005)
MONTANA (2005)
NEW MEXICO (2007)
MINNESOTA (2007)
NEVADA (2007)
UTAH (2007)
WASHINGTON (2010)
FLORIDA (PROPOSED)
PENNSYLVANIA (PROPOSED)
MARYLAND (PROPOSED)
IOWA (PROPOSED)
NATIONAL INDUSTRY PARTNERSHIPS:
AMERICAN SOCIETY OF CIVIL ENGINEERS (ASCE)
AMERICAN SUBCONTRACTORS ASSOCIATION (ASA)
ARTICULATING CRANE COUNCIL OF NORTH AMERICA (ACCNA)
ASSOCIATED EQUIPMENT MANUFACTURERS (AEM)
ASSOCIATED GENERAL CONTRACTORS OF AMERICA (AGC)
CRANE MANUFACTURERS ASSOCIATION OF AMERICA (CMAA)
INTERNATIONAL UNION OF OPERATING ENGINEERS (IUOE)
SPECIALIZED CARRIERS & RIGGING ASSOCIATION (SC&RA)
STEEL ERECTORS ASSOCIATION OF AMERICA (SEAA)
______
Chairman Miller. No objection.
Mr. McKeon. Thank you, Chairman Miller, and I yield back
the balance of my time.
[The statement of Mr. McKeon follows:]
Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican
Member, Committee on Education and Labor
Good morning Chairman Miller, members of the Committee, and our
panel of witnesses. We're here this morning for a broad overview of
OSHA's efforts to ensure worker safety within the construction
industry.
Given a number of recent high-profile crane accidents, I expect
that we will also look specifically at the crane and derrick standard
currently in place, as well as the pending update to that standard that
began with a negotiated rulemaking process in 2004. It's my
understanding that OSHA sent a proposal to revise and update the crane
rule to the Office of Management and Budget earlier this month for
final review, and that we can expect to see final regulations in place
before the end of the year.
Media reports have shown the devastation that can occur when
construction equipment fails. As we have seen, this problem has not
been isolated in one area of the country, but has had consequences
nationwide.
Construction cranes, for instance, are powerful tools in today's
construction arena. They are being built higher, can carry larger
loads, and--if used properly--improve the efficiency of a construction
project. Cranes can eliminate many man hours for lifting and moving
supplies and materials on the jobsite. They can also be among the most
dangerous equipment for construction workers to be around. Constant
vigilance is vital when workers are moving in and around functioning
cranes.
Investigations into a number of recent crane accidents are still
underway, and I expect these investigations to provide valuable
information about how to prevent such tragedies in the future. However,
I am very troubled by allegations in The New York Times that the city's
chief crane inspector has been accused of taking bribes to certify
cranes as operational and workers as having successfully passed
licensing exams. I request unanimous consent to include this article,
dated June 7, 2008, in the hearing record.
Construction is vital to economic growth. But it's also an
inherently dangerous industry, and that's why it's so important that
steps be taken to help mitigate the risks and protect the workers.
Because of the unique characteristics of construction job sites and
their associated dangers, OSHA has put in place specific and extensive
regulations directed at the construction industry. I look forward to
learning more about those standards today.
We have before us a distinguished panel of experts including OSHA
Administrator Foulke, who has taken over the development of the crane
regulation I mentioned earlier in the midst of its development. I am
hopeful he will provide us with an update on the crane rulemaking that
has been developed, as well as the other specific safety standards
applicable to the construction industry.
This hearing is an important first step to examine safety
protections for workers in the construction industry, with a particular
emphasis on the crane accidents that have drawn so much attention in
recent months. I anticipate that the conclusion of OSHA's
investigations will also help shape public policy on this important
issue.
I would also request unanimous consent to include testimony for the
record from Mr. Graham Brent, executive director of the National
Commission for the Certification of Crane Operators. When this hearing
was originally scheduled we were notified that it would focus
exclusively on crane safety. Although the scope of the hearing has been
expanded, I believe the record will be enhanced with inclusion of Mr.
Brent's testimony.
Thank you Chairman Miller, and I yield back the balance of my time.
______
Chairman Miller. I thank the gentleman.
I would like now to introduce our panel. First, we are
joined by Mr. Ed Foulke, who is Assistant Secretary of Labor
for OSHA. Prior to his current position, Assistant Secretary
Foulke was a partner in the law firm of Jackson Lewis LLP where
he practiced labor relations law. From 1990 to 1995, he served
at the Occupational Health and Safety Commission, which he
chaired from 1990 to 1994.
George Cole was an ironworker for over 40 years. His
brother-in-law, Harold Billingsley, was killed in one of the
recent Las Vegas construction accidents. Mr. Cole was
previously the owner, operator and general manager of Uriah
Enterprises, Inc., a steel fabrication and erection operation.
Mr. Cole is a member of the Ironworkers Local 433.
Robert LiMandri is the acting Building Commissioner of the
City of New York, a position he was named to in April of 2008.
Commissioner LiMandri joined the Building Department in 2002,
first serving as Deputy Commissioner of Operation and later as
a First Deputy Commissioner.
Mike Kallmeyer is the senior vice president of Construction
Services for Denier Electric Company in Columbus, Ohio. Mr.
Kallmeyer has over 28 years of experience in the electrical
field, having worked as an electrician, foreman,
superintendant, project manager and department and division
manager. He is currently responsible for managing the
Construction Department at Denier Electric.
Mark Ayers is the president of the 3-million-member
Building and Construction Trades Department, AFL-CIO. Prior to
being elected to that position, Mr. Ayers was the Construction
and Maintenance Department director for the International
Brotherhood of Electrical Workers.
Welcome to all of you to the committee. We look forward to
your testimony. Some of you have been here before, and you know
we provide 5 minutes for your opening statements. And there
will be a green light in front of you when you begin to
testify. At 4 minutes, an orange light will come on, which is
to suggest you might want to think about wrapping up, and then
a red light at 5 minutes, which will end your testimony, but we
obviously want you to be able to complete your thoughts in
coherent sentences.
So thank you.
Secretary, we will begin with you.
STATEMENT OF HON. EDWIN FOULKE, ASSISTANT SECRETARY OF LABOR
FOR OSHA
Mr. Foulke. Thank you Mr. Chairman, Ranking Member McKeon
and members of the committee.
Thank you for the opportunity to appear here today to
discuss OSHA's efforts to protect the safety and health of
employees who work in our Nation's construction industry.
Construction is dangerous work, which requires employers to
exercise constant vigilance against hazards, such as false and
elevated positions, trenching and excavation cave-ins,
entrapment in confined spaces, scaffolding collapses and
electrocutions. Unlike other workplaces that have permanent
ongoing operations, construction work sites are temporary and
often involve dozens of different employers conducting
different tasks at a single site. The dangers and hazards in
the construction industry are well known, and the challenge for
OSHA is to use the best mix of enforcement, outreach,
standards, education and proper programs to protect employees.
Strong enforcement of safety and health standards is a
vital component of our effective approach to construction
safety. OSHA focuses on the four most common causes of
occupational fatalities in the construction industry, namely
falls; ``struck bys''; ``caught in betweens''; and
electrocutions.
In fiscal year 2007 more than half of all the OSHA
inspectors, both Federal and State plan inspections, were
conducted in the construction industry, resulting in the
issuance of 74,816 citations. Specifically, OSHA issued more
than 24,000 citations for violations of the fall protection
standard; 3,300 citations ``for struck by'' violations; and
3,500 citations for electrical violations. And since 2001, OSHA
has issued 256 penalties in the construction industry with
penalties in excess of $100,000. Overall, OSHA has proposed
more than three-quarters of $1 billion in penalties for safety
and health violations since 2001. During the same period OSHA
has made 64 criminal referrals to the Department of Justice,
which is more than any previous administration.
In fiscal year 2008, of the 57,000 violations issued so
far, 80 percent have been characterized as serious, willful,
repeat, or failure to debate, the highest percentage ever
recorded by the agency. We are also effectively targeting our
inspections, as violations have been found in 78 percent of the
work sites OSHA has inspected.
In addition to a strong target enforcement program OSHA
continually reviews its construction safety and health
standards. There are a number of regulatory changes under
consideration, including the crane and derrick standard.
OSHA conducts national, regional, and local emphasis
programs to target enforcement of particular hazards and
industries. The success of this approach is demonstrated in New
York where upwards of 12 employees were being killed annually
in roadway work zones. After the establishment of a local
emphasis program by OSHA, the number of work zone fatalities
was reduced to one in 2007. Also, a national OSHA trenching
initiative which began in 2003 has helped to reduce the annual
number of trenching- and excavation-related fatalities by 46
percent.
Along these same lines training is a critical component of
an effective accident prevention program. The OSHA Training
Institute has focused both on training our compliance officers
to identify the hazards most common at construction work sites
and on our train-the-trainer program, in which individuals who
successfully complete the required training courses are
authorized to conduct training programs in construction. Over
1.6 million construction participants have been trained by
these trainers since 2004.
An example of how this training has saved lives occurred
after a construction employee in Kansas attended one of these
training courses and learned to don and adjust a full body
harness. He and a coworker later survived a fall on the job
because of their understanding of how to properly use this
critical safety equipment.
The construction industry employs a large number of
Spanish-speaking employees. OSHA continues to develop and
distribute Spanish-language material, such as a Spanish-English
construction dictionary, public service announcement, quick
cards and fact sheets, all of which are available on the
agency's Spanish Web site. These materials help Spanish-
speaking employees identify workplace hazards.
OSHA makes use of a variety of effective cooperative
programs with employers, trade associations, labor
organizations and others to provide safety and health in the
construction agency. OSHA's voluntary protection program has
113 construction participants across the Nation. There are also
140 strategic partnerships with construction companies, which
is more than 80 percent of all partnerships.
I want to make it clear, however, that while the agency
offers technical assistance to employers to help comply with
OSHA standards, as well as recognizing employers for
implementing exemplary health and safety systems, compliance
with OSHA safety and health standards is mandatory, not
voluntary. There is no such term or practice as voluntary
compliance. Every employer is responsible for providing
employees a safe and helpful workplace free of hazards. OSHA is
committed to enhancing construction safety and to continue to
provide employers and employees with safety information and to
ensure that work sites comply with existing safety regulations.
I can assure the committee that construction safety is a
top priority for OSHA and that we are striving to ensure that
all employees return safely to their families and friends at
the end of each and every workday.
Thank you, Mr. Chairman, and I would be happy to answer any
questions that you may have.
[The statement of Mr. Foulke follows:]
Prepared Statement of Hon. Edwin G. Foulke, Jr., Assistant Secretary,
Occupational Safety and Health Administration, U.S. Department of Labor
Mr. Chairman, Ranking Member McKeon, and Members of the Committee:
Thank you for the opportunity to appear today to discuss OSHA's
comprehensive efforts to protect the safety and health of employees who
work in our nation's construction industry.
To accomplish its mission of saving lives and reducing injuries and
illnesses, OSHA utilizes a balanced approach which includes: 1) strong,
fair, and effective enforcement; 2) safety and health standards and
guidance; 3) training and education; and 4) cooperative programs,
compliance assistance and outreach. The Occupational Safety and Health
Act (the OSH Act) enacted by Congress in 1970 stipulates that employers
are ultimately responsible for providing a safe and healthful work
environment. OSHA has a critical role in helping employers with their
responsibilities, and utilizes all components incorporated in its
balanced approach.
Since 2001, as part of its strong enforcement program, OSHA
proposed more than three-quarters of a billion dollars in penalties for
safety and health violations and made 64 criminal referrals to the
Department of Justice, which represents more than 30 percent of all
criminal referrals in the history of OSHA and more than any previous
Administration. In Fiscal Year (FY) 2008, of the almost 57,000
violations issued so far, 80 percent have been categorized as serious,
willful, repeat or failure-to-abate, the highest percentage ever
recorded by the agency. We are also effectively targeting our
inspections--78 percent of the worksites we inspected had violations.
Our approach is working. All three key indicators--injury, illness and
fatality rates--are all at the lowest levels in the nation's history.
Most importantly, the overall fatality rate in construction has
declined by 18 percent since 2001. These achievements highlight the
Administration's commitment and success in protecting the safety and
health of the nation's workforce.
Even with all these achievements, OSHA recognizes that there are
still safety and health concerns to be addressed at workplaces,
including construction sites. We must remember that a successful
construction project is one that it is done safely and without loss of
life. One fatality is one too many.
According to data from the Bureau of Labor Statistics (BLS) Current
Population Survey, employment in the construction industry averaged
approximately 11.9 million in 2007, with approximately 16 percent of
the total classified as unincorporated self-employed. Since FY 2003, 78
percent of all OSHA fatality investigations in the construction
industry have been conducted on companies with 25 or fewer employees.
According to the National Institute for Occupational Safety and Health
(NIOSH), 80 percent of the construction businesses have fewer than 10
employees. Construction is dangerous work which requires constant
vigilance against hazards such as falls from elevated positions;
trenching and excavations; confined spaces; scaffolding; electrocution
and exposure to dust and noise. The dangers in construction work are
well known and the challenge for OSHA is to use the best mix of
enforcement, outreach, education, and cooperative programs to address
construction workplace hazards.
Another challenge presented to OSHA by the construction industry is
the nature of this industry. Unlike other workplaces that have
permanent and ongoing operations, the work performed at construction
sites is highly dynamic, often involving dozens of different employers
at a single construction site, whether it is a large industrial project
or a residential home. It is in this complex and challenging worksite
that OSHA works with employers, employees, and their representatives to
improve safety and health.
OSHA is familiar with these challenges and in response, has a
multi-faceted approach to reducing construction-related accidents and
preventing exposures to health hazards. OSHA focuses on the four most
common causes of occupational fatalities in the construction industry:
falls; ``struck by''; ``crushed by''; and electrocutions. In addition
to a strong, targeted enforcement program, OSHA continues to revise and
update its standards, create meaningful compliance assistance
resources, and provide outreach, education and training. OSHA is
committed to protecting employees by identifying hazards, citing
employers when standards are violated, and educating stakeholders on
ways to reduce the hazards associated with construction work across the
country. OSHA also helps employers to provide safer working
environments by engaging in a balanced approach of enforcement and
outreach to key stakeholders to collaborate on important safety and
health issues.
OSHA: Strong Enforcement Program for Construction
Strong enforcement of safety and health standards is a component of
our effective approach on construction safety. In FY 2007,
approximately 51 percent of total OSHA inspections, both federal and
State Plan inspections, were conducted in the construction industry.
More than 67 percent of all federal and about 74 percent of State Plan
construction inspections were programmed inspections. In FY 2007, OSHA
issued 74,816 citations just in the construction industry. Since 2001,
OSHA has issued 256 significant enforcement cases--those with penalties
of at least $100,000--in the construction industry. As these statistics
show, OSHA enforcement is strong and enforcement of our safety and
health standards is a top priority of the agency.
OSHA has addressed the top four causes of fatalities found in its
Integrated Management Information System in several ways. The agency
has been aggressive in issuing citations and penalties for violations
of the standards that address these key hazards. In FY 2007, for fall
protection violations, we issued 24,358 citations for a total of $33.5
million in penalties; for struck-by and crushed-by, we issued 3,317
citations for a total of $9.1 million in penalties; for electrical
violations, we issued 3,566 citations for a total of $2.4 million in
penalties.
Enhanced Enforcement Program
In addition to our standard enforcement efforts, OSHA has created
other enforcement mechanisms to focus on those companies that ignore
their obligations under the OSH Act. The Enhanced Enforcement Program
(EEP) complements the agency's targeted approach to enforcement by
addressing employers who, despite OSHA's enforcement and outreach
efforts, ignore their obligations to provide a safe and healthful work
environment. The program looks at an employer's national inspection
history, not just the violations at a single facility, to determine
whether failure to comply with OSHA safety and health standards is a
problem at one facility or job site, or systemic throughout the entire
company. If an employer meets the criteria for EEP, it will be subject
to much greater enforcement scrutiny from OSHA, which may ultimately
result in court enforcement of citations or criminal referrals. This
program has been used in the construction industry to focus resources
on companies that fail to adequately protect their employees. There
were 1,189 EEP construction cases, which represents almost half of all
OSHA EEP cases. After four years of implementation, OSHA revised the
EEP program to focus greater enforcement emphasis on those employers
that have a history of violations with OSHA (including history with the
State Plans.) The revised program became effective on January 1, 2008.
Special Emphasis Programs
OSHA conducts National, Regional, and Local Emphasis Programs
(NEPs, REPs, and LEPs) that target particular hazards or industries
such as trenching, amputations, and refining. These programs combine
enforcement and outreach efforts to address a particular safety and
health issue. OSHA has completed a number of successful emphasis
programs focused on such topics as fall hazards in construction, mobile
crane operations, bridge and tunnel construction, silica and road
hazards, falls relating to scaffolding, and energized power lines.
Hexavalent Chromium
OSHA promulgated a standard on exposures to hexavalent chromium on
February 29, 2006 which reduced the permissible exposure limit (PEL).
Construction employees are primarily exposed to hexavalent chromium
during the welding/cutting of stainless steel, removing paint from
existing structures such as bridges, and during refractory restoration.
Portland Cement
OSHA implemented new Portland Cement Inspection Procedures at
construction sites as part of its settlement of a legal challenge to
the new Hexavalent Chromium Standard by the Building and Construction
Trades Department, AFL-CIO, Laborers' International Union of North
America, and International Brotherhood of Teamsters.
Preventing Falls
In 2001, OSHA issued a new steel erection standard that modified a
provision to allow the use of nets instead of a fully planked floor.
Specifically, the new provision provides that the employer has the
option of either maintaining a fully planked/decked floor or
maintaining nets, every two stories. In 2002, stakeholders asked OSHA
to permit the use of 100 percent fall protection instead of using
planking or nets. They argued that planking is not effective fall
protection and that 100 percent tie-off is safer than allowing
connectors and deckers to work without personal fall protection above a
planked floor. In response, OSHA issued a compliance policy stating
that, if an employer used 100 percent fall protection, including for
connectors and deckers, the failure to comply with this provision would
be considered de minimis.
OSHA agrees with the rationale that 100 percent fall protection
provides greater protection than what is required by the standard. The
standard issued in 2001 does not require connectors and deckers working
less than 30 feet from the ground to use fall protection. Under the
2001 standard, if an employer chooses to have a fully planked floor
rather than a net 30 feet below the employees, which is allowed by the
floor/net provision, those employees would be exposed up to a 30 foot
fall to a planked floor. In contrast, under the de minimis policy, all
employees would be protected by fall protection at all times. It is the
position of OSHA that greater safety overall is achieved by employers
using the de minimis policy.
Preventing Construction ``Struck By'' Accidents
An OSHA NEP addressing roadway work zone safety was created after
the success of a local initiative that began in OSHA's Parsippany, New
Jersey office. This collaborative program brings together state
transportation and police authorities, as well as local unions, in
cross-training efforts to improve hazard identification and correction
at highway job sites. The success of this approach is reflected in New
Jersey, OSHA data indicates that where 8-12 employees were being killed
in roadway work zones annually; the number of workzone fatalities there
was reduced to one in 2007.
Also, OSHA updated the Signs, Signals and Barricades rule to
improve protection for highway workzone employees. That standard had
previously incorporated by reference the 1971 version of Part VI of the
Department of Transportation's Manual on Uniform Traffic Control
Devices (MUTCD). On September 12, 2002, OSHA updated that rule so that
now employers must at least comply with the 1993 version of the MUTCD;
they have the option of complying with the Millennium version. This
change has upgraded requirements for a variety of warning and traffic
control devices.
In addition, OSHA is conducting a study of struck-by accidents to
determine patterns and root causes.
Trenching Initiative is Successful
The OSHA Trenching Initiative, which was begun in 2003, has proven
to be successful. The trenching initiative is a large scale effort to
raise awareness of trenching hazards and basic trench safety practices.
Working through cooperative programs such as the American Pipeline
Contractors Association, and with other stakeholders, 500,000 Trenching
Quickcards, 50,000 Trenching Posters, and NIOSH's CD Trench Safety
Awareness Training have been distributed. Most of these training and
education materials, such as the Quickcards, are designed specifically
for use by the many small contractors that are engaged in trenching
work. OSHA data indicates that the Initiative has helped to reduce the
annual number of trenching and excavation related fatalities by 46
percent.
Preventing Electrocutions in Construction
A National Strategic Partnership between OSHA and the Electrical
Transmission and Distribution Construction Contractors, trade
associations, and International Brotherhood of
Electrical Workers was originally signed in August 2004 and
continues today. The partners represent the interests of more than 70
percent of the industry. The partnership's tri-level leadership (CEO's,
corporate safety, employees/supervisors) harnesses industry expertise
with that of OSHA to make significant progress towards the
Partnership's goals: reduction of fatalities through data analysis,
training, and best practice development/implementation.
Initially, shared data analysis drove the partners to develop and
implement best practices; they continue to do so. The analysis also
resulted in the development and delivery of an industry-specific OSHA
10-hour outreach training program. The course has reached more than
12,000 employees, foremen and general foremen. Most recently the
partners started delivering their new Supervisory Leadership and
Outreach Training course. It has reached more than 120 supervisors to
date. OSHA data collected indicates that the training efforts and the
implementation of best practices have helped accomplish the
Partnership's overall goal of reducing fatalities, which has shown
remarkable progress by declining from 67.24 per 100,000 employees in
2003 to 24.55 in 2007, a 63.5 percent reduction.
Unprecedented Levels of Hispanic Outreach Activities
OSHA continues to make workplace safety and health for Hispanic
employees a priority. The agency has a Diverse Workforce Issues Group
that focuses on outreach, training and education issues through various
means, including the OSHA--Mexican Embassy Letter of Agreement (LOA),
several construction alliances, including alliances with the
International Association of Foundation Drilling, the American Pipeline
Contractors Association, the American Society of Safety Engineers, the
National Association of Home Builders, and the Roadway Work Zone Safety
and Health Partners, and OSHA's On-site Consultation Program. There is
active participation by our stakeholders, including foreign consulates,
industry, professional associations, organized labor, community faith-
based organizations, and small business employers to address the safety
and health issues for this hard to reach segment of the work force.
OSHA continues to develop and distribute Spanish-language materials
such as a Spanish-English construction dictionary, public service
announcements, posters, QuickCards, Fact Sheets, and many other
publications, which are available on the Agency's Spanish version Web
site, OSHA En Espanol. In addition the Agency has developed Spanish-
language eTools, like La Prevenci"n De Fatalidades (``The Prevention of
Deaths'' in construction), which are also available on OSHA En Espanol.
Training for Construction Employees: OSHA Construction Outreach
Training Program
The OSHA Outreach Training Program is a ``train-the-trainer''
program in which trainers who successfully complete the required OSHA
Training Institute trainer course are authorized to conduct 10- and 30-
hour training programs in construction and to give cards provided by
the OSHA Training Institute to their students. This ``train-the-
trainer'' program is OSHA's primary initiative for training employees
in the basics of occupational safety and health hazard recognition and
avoidance.
The OSHA Construction Outreach Training Program is a voluntary
program. However, its considerable growth has been driven through
industry groups such as the building trades, contractors, employer
associations, and specific companies. The endorsement by these groups
has resulted in the requirement of the training as a condition of
employment for their employees or members. Over 1.6 million
construction participants have been trained by these trainers since
2004.
OSHA Cooperative Programs
OSHA makes use of a variety of effective cooperative programs which
engages various stakeholders such as employers, organizations,
organized labor, and others to improve safety and health in the
construction industry. The agency's cooperative programs include
Alliances, Strategic Partnerships, Voluntary Protection Programs (VPP),
and On-Site Consultation programs to name a few.
OSHA's VPP has 113 construction participants across the nation.
There are 146 Strategic Partnerships with construction companies which
account for more than 80 percent of all partnerships. OSHA's newest
program, OSHA Challenge, ``A Roadmap to Safety and Health Excellence'',
has 72 participants. These programs have demonstrated that effective
safety and health management systems can make a significant difference
by helping to reduce injuries and illnesses by 20 percent to 80 percent
below their industry average according to BLS data comparisons. In
addition, there are 14 national construction Alliances. OSHA offers a
number of opportunities for businesses, trade organizations, labor
unions, universities and state and local governments to work together
to protect employees in the construction industry by identifying and
addressing workplace hazards, providing input on proposed rules,
enhancing safety and health management systems, and promoting a
national dialogue on the importance of protecting construction
employees from hazards.
I want to make it clear, however, that, while the agency offers
technical assistance to employers to help them comply with OSHA
standards as well as recognize employers for implementing exemplary
safety and health management systems, compliance with OSHA safety and
health standards is not voluntary. There is no such term or practice as
``voluntary compliance.''
Pending Rulemakings
OSHA recognizes that a dynamic industry requires that we
continuously evaluate regulations and standards. The following four
items on OSHA's current regulatory agenda are particularly applicable
to the construction industry.
Cranes:
Several recent fatal crane accidents have highlighted the
importance of crane safety. OSHA estimates that there are approximately
96,000 construction cranes in use each year in the United States. The
recent crane accidents in New York, Miami, and Annapolis involved tower
cranes. According to OSHA accident investigation data, in the period
from 2000 to 2007, there were a total of 20 incidents involving tower
cranes which resulted in 10 fatalities.
OSHA is proactively engaged to improve crane safety. The
Administration is in the final stages of preparing a proposed rule to
update and improve its current construction cranes and derricks
standard. The rule is being developed through a negotiated rulemaking
process which provides opportunities for all stakeholders to provide
input.
The cranes and derricks proposed rule will comprehensively address
the hazards associated with the use of cranes and derricks in
construction, including tower cranes. Developing the proposal is a
complex, large-scale project which requires diligent and thoughtful
considerations of all the technical issues. Pursuant to statutory
requirements, OSHA has completed the regulatory flexibility analysis,
small business review, paperwork burden analysis, and economic impact
analysis of the proposed rule.
In addition to rulemaking, OSHA is highly engaged in a number of
activities designed to heighten awareness of best practices and the
construction hazards associated with crane use. OSHA's regional offices
have established Alliances and partnerships, participated in numerous
training activities, and provided information and training as part of
proactive outreach programs.
An increasing number of Compliance Safety and Health Officers
(CSHOs) are attending OSHA Training Institute's (OTI) #2050 Cranes and
Rigging Safety for Construction Course, which focuses on crane safety.
Over the past 8 years, 111 Federal OSHA and 187 State plan employees
have completed this course. OTI has also conducted a Web-based seminar
in which over 670 CSHOs and other agency staff received crane safety
training. Some OSHA employees in the field have also taken advantage of
training opportunities provided by public and private sector entities.
OSHA regional offices, such as Region V (Chicago), are organizing
training events in conjunction with local unions and industry groups.
The Region I office (New England) has conducted eleven different
training events focused on crane safety. Regional offices have also
recognized the need for additional efforts specific to crane use in
urban and high-rise construction projects. Region I implemented a Local
Emphasis Program for cranes in early FY 2008; Region IV is engaged in
outreach activities on crane hazards with industry stakeholders in
Florida; Region V has a Local Emphasis Program in high-rise
construction in the Chicago area, and CSHOs in that region are using a
Crane Initiative Questionnaire to focus attention on specific crane
hazards. OSHA regional offices also are working with local building
departments to exchange crane safety information.
OSHA is currently developing a national Crane Safety Initiative
that will, with the help of labor and industry stakeholders, heighten
awareness of key crane safety hazards and safe practices.
Finally, OSHA compliance officers inspect employer compliance with
the OSHA construction crane standard as part of their inspections of
construction sites. OSHA has detailed requirements for crane safety,
which employers are required to follow. The requirements of the current
crane standard include operational safety; a general requirement for
employers to inspect construction cranes prior to each use; an annual
inspection that must be ``thorough'' and documented, and that defects
or deficiencies discovered in any inspection be repaired before the
crane may be used; and requirements that employers conduct tower crane
inspections prescribed by the manufacturer. Currently, there is no
federal program under which OSHA is specifically charged with
inspecting all construction cranes. Nor does OSHA currently require
certification for crane operators.
After the March 2008 tower crane collapse in New York City, OSHA
increased inspections of large construction sites there, since those
are the sites where cranes are most likely to be used. Similarly, the
State Plan partner, New York-OSHA, staff increased outreach efforts to
address crane safety. OSHA's National Office deployed an engineering
expert to the accident sites in New York and Miami as part of the
agency's on-going investigations of those accidents.
Power Generation, Transmission and Distribution:
On June 15, 2005, OSHA published a proposed rule to revise the
general industry and construction standards for electric power
generation, transmission, and distribution work and for electrical
protective equipment. Public comments were received, hearings were
held, and the final posthearing briefs were due on July 14, 2006.
The proposed standard included revised minimum approach distance
tables. Those tables limit how close an employee (or a conductive
object he or she is contacting) may get to an energized circuit part.
After the rulemaking record on the proposal closed, the technical
committee responsible for developing the tables in the consensus
standards on which the proposal was based discovered what they believe
is an error in their calculation of minimum approach distances for
certain voltages. OSHA will be reopening the record on this proposal
for a period of 60 days to obtain comments related to the affected
minimum approach distances.
Confined Spaces:
Fatality and injury data, OSHA enforcement experience, and advice
from OSHA's Advisory Committee for Construction Safety and Health
indicate that the existing construction standard for confined spaces
does not adequately protect construction employees in confined spaces
from atmospheric and physical hazards. The existing construction
standard only requires employers to instruct their employees about
confined-space hazards, and comply with other OSHA construction
standards that address confined-space hazards. On November 28, 2007,
the agency issued a proposed rule for confined spaces in construction
that is estimated to prevent 6 fatalities and 900 injuries.
The proposed rule addresses construction-specific needs in several
ways. It uses a comprehensive, step by step approach to confined space
safety by setting out how to assess the hazards, classify the space and
implement effective procedures to protect employees. Since construction
sites often have a number of employers working simultaneously, the
proposed rule would require controlling contractors to coordinate
confined space operations. Upstream engulfment hazards, which are
typical in sewer-type spaces, are addressed by a requirement for an
early warning system. Also, because conditions in these spaces during
construction can change rapidly and unexpectedly, continuous monitoring
for hazardous atmospheres would be required.
We are currently analyzing the public comments that were submitted
and have scheduled a hearing for July 22, 2008.
Hearing Loss in Construction:
OSHA is continuing work on a new hearing conservation rule for
construction. The current requirement requires employers to implement
an effective hearing conservation program but contains no details on
what such a program must include.
We are continuing the research and analytical efforts necessary to
move this rulemaking forward. These include reviewing effective hearing
conservation programs and state and international noise standards, and
researching noise control methods such as reduced noise hand tools.
Some of the issues under study that have added to the complexity of
promulgating a rule include the seasonal nature of many construction
jobs, the high employee turnover rate on many construction worksites,
the temporary nature of many construction worksites, and the amount of
noise generated by some commonly used construction equipment.
OSHA is committed to enhancing construction safety, to continuing
to provide employers and employees with safety information, and to
ensuring that worksites comply with existing safety regulations. I
assure the subcommittee that construction safety is a top priority for
OSHA and that we are striving to ensure that all employees return
safely to their families and friends at the end of every work day.
Thank you Mr. Chairman. I would be happy to answer any questions.
______
Chairman Miller. Thank you.
Mr. Cole.
STATEMENT OF GEORGE COLE, FORMER IRONWORKER
Mr. Cole. Good morning, Chairman Miller, and other
distinguished members of this committee.
My name is George Cole. I am an ironworker, retired. For 42
years I have been in the business.
I never thought I would be testifying that OSHA has failed
to enforce safety standards for steel erection. I deeply regret
that I am here today on behalf of my deceased brother-in-law,
Rusty Billingsley, who plunged 59 feet to his death on the City
Center project in Las Vegas.
With me today is my wife, Rusty's sister, Monique
Billingsley Cole.
To further add our overwhelming grief, after deciding on a
$13,500 fine because the accident could have been prevented,
Nevada OSHA then met privately with the company and withdrew
all citations and fines, stating that Rusty's employer bore no
responsibility for his death.
I am here today on behalf of my family and ironworkers
throughout the country. Rusty's death was not his fault. There
are two problems here: the unsafe conditions at the workplace;
and OSHA's failure to enforce its own standards as they were
written. We need assistance to confront OSHA on their failure
to enforce the safety standards for steel erection and their
misuse of compliance directives that have effectively removed
vital safety provisions for ironworkers.
The compliance directive issued by Federal OSHA, violates
the safety regulations contained in OSHA's Subpart R, Steel
Rejection Standard Final Rule. OSHA standards require a decked
floor every two floors or 30 feet, whichever is less. The
compliance directive eliminated this safety provision for
Rusty. This was never more evident than on October 5, 2007,
when Rusty was permitted to fall over 59 feet to his death.
Because of this directive, on that day, I lost my brother and I
gained a statistic.
The OSHA photos of his crushed and lifeless body will
forever overshadow his energetic loving life and a kind
generous man. On several occasions, representatives for the
Ironworkers International and contractor associations have met
with Mr. Edwin Foulke, Assistant Secretary of Labor, and his
staff in good faith to resolve these issues.
OSHA was strongly urged to rescind certain items contained
in this compliance directive that removed safety provisions and
create unsafe working conditions for ironworkers. Despite
repeated warnings to Mr. Foulke, from industry stakeholders,
members of his own staff and the former Deputy Assistant
Secretary of Labor, Mr. Foulke has refused to rescind certain
items contained in his compliance directive.
Two weeks ago, Mr. Foulke visited Las Vegas and requested
to meet with general contractors and subcontractors regarding
the recent fatalities in Las Vegas. Why would Mr. Foulke come
to Las Vegas to talk about fatalities and workplace safety when
he has refused to rescind the OSHA compliance directive that
has been the center of the controversy in Las Vegas?
I was informed that Mr. Foulke refused to rescind certain
Federal OSHA compliance directives but agreed that he would
consider suspending them until further notice. Family members,
friends, and brother ironworkers are disappointed that Mr.
Foulke left Las Vegas without taking action on this compliance
directive that contributed to the tragic death of my brother-
in-law, Rusty.
I am extremely pleased that Nevada OSHA has formally
denounced items contained in the Federal OSHA compliance
directives. After a thorough review, Nevada OSHA officials
concluded that certain OSHA compliance directives do not
provide equivalent protection. State plan officials refer to
OSHA's compliance directives as ``underground rulemaking'' when
Federal OSHA intends to ``make policy'' without going through a
formal rulemaking process. This is a disservice to the
stakeholders in the steel industry who rely on OSHA to provide
constant enforcement and interpretation of safety regulations.
Nevada now joins other State OSHA plans that have refused
to adopt these compliance directives. The working men and women
that build America look to OSHA to enforce the safety
regulations for our protection. We are shocked and disappointed
that OSHA would issue compliance directives that remove safety
provisions for the steel erection industry that has been
considered a high-hazard industry. Today these compliance
directives continue to be a deadly hazard to ironworkers and a
source of confusion, costly job site delays, and unnecessary
litigation.
On behalf of Rusty, my family and ironworkers throughout
the country, we seek your assistance to question Mr. Foulke on
OSHA's current policy to not enforce the current safety
standards for steel erection and their misguided compliance
directive that removed vital safety provisions for ironworkers.
I hope my testimony before you today will prevent future
fatalities and help bring closure to our family. We believe
that Mr. Foulke is accountable, and OSHA should be issued a
willful citation for knowingly and intentionally violating
their own standards.
Thank you for not allowing Rusty's death to be in vain.
[The statement of Mr. Cole follows:]
Prepared Statement of George Cole, Former Ironworker
Good morning Chairman Miller and other distinguished members of
this Committee. My name is George Cole, I have been an Ironworker for
42 years and I never thought I would be testifying that OSHA has failed
to enforce safety standards for steel erection. I deeply regret that I
am here today on behalf of my deceased brother-in-law, Harold ``Rusty''
Billingsley who plunged 59 feet to his death on the Project City Center
in Las Vegas. To further add to our overwhelming grief, OSHA withdrew
all citations and fines. I am also here today on behalf of my family
and Ironworkers throughout the country. We need your assistance to
confront OSHA on their failure to enforce the safety standards for
steel erection, and their misuse of Compliance Directives that have
effectively removed vital safety provisions for Ironworkers.
The Compliance Directive issued by Federal OSHA violates the safety
regulations contained in the OSHA Subpart R--Steel Erection Standard
Final Rule. The OSHA standard requires a decked floor every 2 floors or
30 feet whichever is less, and the Compliance Directive eliminated this
safety provision for Rusty.
This was never more evident than on October 5, 2007 when Rusty was
permitted to fall over 59 feet to his death, because of this Directive.
On that day I lost my brother and gained a statistic. The OSHA photos
of his crushed and lifeless body will forever overshadow the energetic
and fun loving life, of this kind and generous man.
On several occasions, representatives from the Ironworkers
International and contractor associations have met with Mr. Edwin
Foulke, Assistant Secretary of Labor and his staff in good faith to
resolve this issue. OSHA was strongly urged to rescind certain items
contained in their Compliance Directive that removed safety provisions
and created unsafe working conditions for Ironworkers. Despite repeated
warnings to Mr. Foulke from industry stakeholders, members of his own
staff, and the former Deputy Assistant Secretary of Labor, Mr. Foulke
has refused to rescind certain items contained in the Compliance
Directive.
Two weeks ago Mr. Foulke visited Las Vegas and requested to meet
with general contractors and subcontractors regarding the recent rash
of fatalities in Las Vegas. Why would Mr. Foulke come to Las Vegas to
talk about fatalities and workplace safety when he has refused to
rescind OSHA Compliance Directives that have been at the center of
controversy in Las Vegas? I was informed that Mr. Foulke refused to
rescind certain Federal OSHA Compliance Directives but agreed that he
would consider ``suspending them until further notice''. Family
members, friends and brother Ironworkers are disappointed that Mr.
Foulke left Las Vegas without taking any action on the Compliance
Directive that contributed to the tragic death of my brother-in-law,
Rusty.
I am extremely pleased that Nevada OSHA has formally denounced
items contained in the Federal OSHA Compliance Directive. After a
thorough review, Nevada OSHA officials concluded that certain OSHA
Compliance Directives do not provide ``equivalent protection''. State
Plan Officials refer to OSHA Compliance Directives as ``underground
rulemaking'' when Federal OSHA intends to ``make policy'' without going
through a formal rulemaking process. This is a disservice to the
stakeholders in the steel erection industry who rely on OSHA to provide
consistent enforcement and interpretation of safety regulations. Nevada
now joins other State OSHA Plan's who have refused to adopt these
Compliance Directives.
The working men and women that build America look to OSHA to
enforce the safety regulations for our protection. We are shocked and
disappointed that OSHA would issue Compliance Directives that remove
safety provisions for the steel erection industry that is considered a
``high hazard industry''. Today, these Compliance Directives continue
to be a deadly hazard to Ironworkers and a source of confusion, costly
jobsite delays, and unnecessary litigation.
On behalf of Rusty, my family, and Ironworkers throughout the
country, we seek your assistance to question Mr. Foulke on OSHA's
current policy to not enforce the current safety standards for steel
erection, and their misguided Compliance Directives that remove vital
safety provisions for Ironworkers.
I hope my testimony before you today will prevent future fatalities
and help bring closure to our family. We believe that Mr. Foulke is
accountable, and OSHA should be issued a willful citation for knowingly
and intentionally violating their own standards.
Thank you for not allowing Rusty's death to be in vain.
______
Chairman Miller. Thank you.
Commissioner LiMandri.
STATEMENT OF ROBERT LIMANDRI, ACTING BUILDING COMMISSIONER,
CITY OF NEW YORK
Mr. LiMandri. Good morning Chairman Miller, Ranking Member
McKeon, distinguished members of the Education and Labor
Committee.
Thank you for this opportunity to discuss construction
safety regulation and enforcement. And frankly, the previous
testimony really hits home today.
Like yourselves and like many Americans, I am deeply
troubled by the recent construction accidents in New York City
and across the Nation. While we all know construction is
inherently dangerous, there is no excuse for failing to
minimize the risk.
Since Mayor Bloomberg took office in 2002, the department
has set high expectations for integrity and accountability;
raised construction safety standards for the industry; and
improved our own enforcement of existing regulations.
Advancing construction safety demands attention from all
levels of government and requires a steadfast commitment from
industry. We have 975,000 buildings under our jurisdiction and
issue approximately 170,000 permits each year. We have
undertaken an aggressive enforcement effort to promote worker
safety, but it is simply impossible for our inspectors to be at
every job site all the time.
Construction safety requires dedication from all
responsible parties in government, contractors, architects and
engineers, owners and workers. Everyone has this
responsibility.
In order to meet the challenge of enhancing construction
safety, the Department of Buildings has undertaken a seven-
pronged approach: First, we nearly doubled the size of the
agency and focused more resources to construction safety.
Second, we sought new and improved regulatory oversight and
enforcement tools. Third, we created a new enforcement program
to stop problems before they become serious. Fourth, we
supported an aggressive criminal prosecution of repeat
offenders. Five, we are currently conducting a top-to-bottom
review of high risk construction areas to further enhance
safety. Six, we are holding all parties accountable. And seven,
we are focusing on education for construction workers and
requiring site safety managers in more locations in order to
have a constant safety presence.
In terms of resources, we are now better able to target
high-risk areas of construction thanks to increased staffing
under Mayor Bloomberg and the City Council. In our special new
enforcement plan alone, we have identified 144 dedicated
engineers, architects, inspectors, lawyers and support staff
working to raise construction safety standards and to
aggressively enforce them.
Expanding our regulatory and enforcement tools has also
been a crucial component to advancing construction safety. On
July 1st of this year the new New York City construction codes
go into effect. They put construction safety front and center
and replace the city's outdated 1968 building code. We are also
launching our construction analysis and oversight plan, an
unprecedented top-to-bottom examination of crane, concrete and
excavation operations, to improve industry practices,
government oversight to minimize the risk.
On the enforcement front, we are actively issuing stop-work
orders, a particularly effective tool that we have in our
arsenal that allows us to immediately halt unsafe construction.
Finally, earlier this month, Mayor Bloomberg and members of
the City Council announced an aggressive legislative package
that would enable the department to track various types of
contractors by their safety records. Overall, it has been an
enormous but necessary ongoing effort.
However, improving construction site safety also requires
the Federal Government to take an active and aggressive role. I
am proud of New York City's partnership with OSHA, as much of
our progress would not have been possible without their
dedicated staff.
Yet it is clear that had OSHA had more additional staff,
our achievements would be far greater. I urge Congress to
follow New York City's lead in allocating increased funding to
construction safety and provide additional resources to OSHA so
they can deploy the construction safety inspectors they so
desperately need.
Right now, we have approximately 7,500 active new building
construction sites and 8,000 additional major alterations. As
was indicated earlier, OSHA has a minimal number of compliance
officers. They simply cannot cover enough ground.
While OSHA inspectors do their best to respond to
emergencies and complaints, they lack the critical enforcement
tool I mentioned earlier, the stop-work order. Without
authority to halt unsafe work when they find it, OSHA
inspectors can only issue fines.
I want to get to cranes. The tower cranes that build our
skyscrapers are like airplanes: They cross State lines. They
demand regular maintenance and need skilled operators. They
have interchangeable parts. We first support the first
modernization of the crane OSHA rules. Because these cranes
move across State lines, it is important that the Federal
guidelines be updated. In addition, what we would like to see
is an invaluable black box technology to be required in every
tower crane across the country. Third, cranes that have these
interchangeable structural components must be clearly labeled
and must be able to track over their lifetime. And fourth, we
are strengthening and expanding tracking and testing
requirements for tower crane components.
We can do a lot in New York City, but the entire Nation
deserves better. The time is now to make meaningful changes.
Facilitating development does not require turning a blind eye
to safety. In New York City, we will not.
Thank you.
[The statement of Mr. LiMandri follows:]
Prepared Statement of Robert LiMandri, Acting Buildings Commissioner,
City of New York
Good morning Chairman Miller, Ranking Member McKeon, Congresswoman
Clarke and members of the Education and Labor Committee. Thank you for
this opportunity to discuss construction safety regulation and
enforcement.
Like yourselves and like many Americans, I am deeply troubled by
recent construction accidents in New York City and across the nation.
While we all know construction is inherently dangerous, there is no
excuse for failing to minimize that risk. The Department of Buildings
recognizes this, and we are working hard to advance construction safety
in New York City.
Since Mayor Bloomberg took office in 2002, the Department has set
high expectations for integrity and accountability, raised construction
safety standards for the industry and improved our own enforcement of
existing regulations.
Advancing construction safety demands attention from all levels of
government and requires a steadfast commitment from industry. The New
York City Buildings Department has 975,000 buildings under its
jurisdiction and issues approximately 170,000 permits each year. We
have undertaken an aggressive effort to promote worker safety, but it
is simply impossible for our Inspectors to be at every site at all
times. Construction safety requires dedication from all responsible
parties--government, contractors, architects, engineers, developers,
owners and workers. Everyone has a responsibility.
In order to meet the challenge of enhancing construction safety,
the Department of Buildings has undertaken a seven-pronged approach--
(1) we nearly doubled the size of the agency and focused more resources
to construction safety; (2) we sought new and improved regulatory
oversight and enforcement tools; (3) we created a new enforcement
program to stop problems before they become serious; (4) we supported
aggressive criminal prosecution of bad actors and repeat offenders; (5)
we are currently conducting a top to bottom review of high risk
construction areas to further enhance safety; (6) we are holding all
parties accountable; and (7) we are focusing on education for
construction workers and requiring site safety managers in order to
have an constant safety presence.
In terms of resources, we are now better able to target high-risk
areas of construction, thanks to increased staffing under Mayor
Bloomberg and City Council. In our new Special Enforcement Plan alone,
we have 144 dedicated staffers working to raise construction safety
standards and to aggressively enforce them.
Expanding our regulatory and enforcement tools has also been a
crucial component to advancing construction safety. On July 1st the New
NYC Construction Codes go into effect. They put construction safety
front and center and replace the City's outdated 1968 Building Code. We
are also launching our Construction Analysis and Oversight Plan, an
unprecedented top-to-bottom examination of crane, concrete and
excavation operations to improve industry practices and government
oversight to minimize risk. On the enforcement front, we are actively
issuing Stop Work Orders--a particularly effective tool we have in our
arsenal that allows us to immediately halt unsafe construction.
Finally, earlier this month, Mayor Bloomberg and members of City
Council announced an aggressive legislative package that would enable
the Department to track various types of contractors by their safety
records. Overall, it has been an enormous--but necessary--ongoing
effort. However, improving construction site safety also requires the
federal government to take an active and aggressive role.
I am proud of our partnership with OSHA, as much of our progress
would not have been possible without their dedicated staff. Yet it is
clear that if OSHA had more resources and staff, our achievements would
be far greater. I urge Congress to follow New York City's lead in
allocating increased funding to construction safety and provide
additional resources to OSHA so they can deploy the construction safety
inspectors they desperately need.
New York City has nearly 7,500 active, new building construction
sites, plus nearly 8,000 major alterations and demolition sites under
the Buildings Department's jurisdiction. OSHA has approximately 15
compliance officers for Manhattan, Brooklyn and Queens to enforce
construction worker safety--including bridges, tunnels and other areas
not under our Department's purview. Additionally, OSHA officers must
also respond to incidents in parts of northern New Jersey and upstate
New York. They simply cannot cover enough ground to show a meaningful
enforcement presence.
While OSHA's inspectors do their best to respond to emergencies and
complaints, they lack the critical enforcement tool I mentioned
earlier--the Stop Work Order. Without authority to halt unsafe work
when they find it, OSHA inspectors can only issue fines. While fines
can be a disincentive, they do not carry the same immediacy as a Stop
Work Order.
Recently, national attention has focused on crane safety after two
crane collapses in New York City, as well as other crane problems
across the country. This is a call to action for all of us. In New
York, we have implemented new protocols and procedures, conducted
inspection sweeps of cranes and are stepping up enforcement. But, we
cannot do this alone.
The tower cranes that build our skyscrapers are like airplanes.
They cross state lines, demand regular maintenance, need skilled
operators, have important interchangeable parts--and bring catastrophic
results when they fail. In New York City, we have been working closely
over the past three weeks with industry, developers and labor to
improve crane safety and to implement a set of safety proposals I
announced yesterday. Of the new safety requirements we are pursuing,
four necessitate strong Federal and OSHA oversight and involvement:
First, we support the proposed modernization to OSHA's crane rules.
Countless American cities and states depend upon these antiquated
regulations because they have no localized crane oversight of their
own. Because tower cranes are transitory, it's imperative a better
federal standard is established. The nation cannot wait another moment
until the outdated OSHA tower crane regulations are revised to meet the
demands of modern construction. Even though we are past the June 1
deadline in which no new Federal standards can be enacted, the
Administration should make a special exception and pass these important
crane standards now.
Second, the invaluable ``black box'' technology must be required in
every tower crane across the country. This is the same technology used
in airplane accident investigations.
Third, cranes have many interchangeable, structural components.
These crucial parts must be clearly labeled to track them over their
lifetimes.
Fourth, we are strengthening and expanding tracking and testing
requirements for tower crane components. We are acting now, but this
should fall under Federal requirements because these cranes follow
construction sites across state lines.
We can do a lot in New York City--but the entire nation deserves
better crane regulations. Only the federal government can guarantee
that.
The time is now to make meaningful and lasting changes to minimize
construction risk in New York City and across the country. Together, we
can push all the responsible parties on the job site, from the workers
to the managers and equipment users and most importantly, the
contractors who supervise them, to make safety their top priority. It's
going to take all of us to meet this challenge. Facilitating
development does not require turning a blind eye to safety, and in New
York City we won't.
Thank you.
______
Chairman Miller. Thank you very much.
It is the intention of the Chair to take Mr. Kallmeyer's
testimony now. We will then break for a vote, and we will be
right back after the vote.
Mr. Kallmeyer, welcome.
STATEMENT OF MIKE KALLMEYER, SENIOR VICE PRESIDENT,
CONSTRUCTION SERVICES, DENIER ELECTRIC COMPANY
Mr. Kallmeyer. Chairman Miller, Ranking Member McKeon,
distinguished members of the committee, I appreciate the
opportunity to appear before you today.
My name is Mike Kallmeyer. I am the senior vice president
of construction at Denier Electric in Columbus, Ohio. I have
almost 30 years of experience in the electrical contracting
field. I am pleased that the committee has decided to examine a
subject that is of the utmost importance, workplace safety.
Project safety is a key component of any successful
contractor's business model. A safe job site is essential for
maintaining employee morale and performance, and thus increases
the contractor's ability to run a profitable business. Our goal
is always to prevent accidents rather than simply reacting to
them after the fact. I am hopeful that today's hearing will
serve to convince the committee that the best way to improve
workplace safety is by continually working to prevent job site
accidents.
Bad contractors who neglect safety rules and put their
employees at risk should be punished to the fullest extent of
the law. At the same time, it is important to recognize that
the vast majority of employers care about their employees'
safety and strive to run clean job sites that are safe and
efficient. By working cooperatively to educate employers about
the necessary workplace safety techniques and procedures,
agencies such as the Occupational Safety and Health
Administration can help continue the overall decrease in job
site accidents that we have witnessed over the past several
years.
At Denier Electric, workplace safety is part of our
culture. It is part of our culture because it is the right
thing to do for our employees and it is the right thing to do
for our business. Make no mistake about it, being an
electrician can be a hazardous way to earn a living. But I can
tell you from personal experience that our industry's workplace
safety practices and techniques are dramatically improved from
20 years ago and that they are continually evolving to meet the
high expectations that we set for ourselves. That is why Denier
encourages and practices workplace safety techniques through
its own training and education programs, as well as the
resources of our trade association, the Independent Electrical
Contractors.
Safety on the job site must be part of everything we do as
a business. It must be part of Denier Electric's culture if we
want it to be effective. To put this in context, I believe it
will be beneficial to give you real world examples of how
Denier makes safety part of everything that our employees do.
First, all of our employees receive training in what we call a
safety indoctrination before they ever set foot on one of our
job sites. Our electrical apprentices receive the OSHA 10-hour
outreach training as part of their apprenticeship educational
program. Additionally, we provide the OSHA 30-hour training for
all Denier Electric field supervisors and annually update the
10-hour training for all employees. Along with that, each
Denier Electric employee completes all the industry-recognized
safety courses required for their field of employment. Denier
Electric also offers a Drug Free Workplace Program and offers
rehabilitation assistance for anyone in need.
At the start of every construction project, we perform a
hazard analysis of that particular job site, conducted by a
Denier safety director in collaboration with field employees.
He then conducts site-specific training for each construction
site. And employees are provided with the necessary personal
protective equipment for every job.
Along with that, we initiate a daily ``frequent and
regular'' inspection of each construction site conducted by
field management or employees to identify hazards and mitigate
the risks.
Denier performs an incident investigation should an
accident or ``near miss'' occur. These investigations are
conducted by a team composed of management, employees, our
safety director and, if necessary, an outside safety
consultant. Senior management reviews all investigations to
ensure that any corrective actions are completed.
Secondly, we utilize employee incentive programs to
continually improve the safety of our company. I understand
that some are critical of incentive programs, but I have seen
firsthand that a properly run incentive program produces
tangible results. Our incentive program rewards individuals
with good safety records, individuals who exceed our own
training requirements, and individuals who volunteer to serve
on our safety committee. In order to ensure that this program
is truly effective, Denier's incentive program and safety
policies are reviewed annually by a team of employees,
management and outside safety consultants.
A safe job site is a productive job site. And as you can
see, at Denier, we take our safety programs very seriously and
do everything we can to make our workplace safe. As I mentioned
earlier----
Chairman Miller. And with that, we are going ask you to
wrap up because we have got to sprint to make a vote here.
Thank you. Your entire written statement will be put into
the record.
Mr. Kallmeyer. Thank you.
If I may conclude with a point that I made at the beginning
of the testimony, I believe that the most effective action for
government is to aggressively promote its educational
partnerships with the industry so that more employers have the
resources to improve the workplace. By working together,
industry and government can provide employers with the
educational resources that they need to prevent accidents
before they happen.
I would like to thank the committee for this opportunity,
and I encourage you to work with your constituents, both
employers and employees, to cooperatively improve job site
safety.
Thank you.
[The statement of Mr. Kallmeyer follows:]
Prepared Statement of Mike Kallmeyer, Senior Vice President for
Construction, Denier Electric
Chairman Miller, Ranking Member McKeon, distinguished Members of
the Committee, I appreciate the opportunity to appear before you today.
My name is Mike Kallmeyer, and I am the Senior VP for Construction
at Denier Electric, in Columbus, Ohio. I have almost 30 years of
experience in the electrical contracting field.
I am pleased that the Committee has decided to examine a subject
that is of the utmost importance; workplace safety. Jobsite safety is
one of the key components of any successful contractor's business
model. A safe jobsite is essential for maintaining employee morale and
performance, and thus increases the contractor's ability to run a
profitable business.
Our goal is always to prevent accidents, rather than simply
reacting to them after the fact. I am hopeful that today's hearing will
serve to convince the Committee that the best way to improve workplace
safety is by continually working to prevent jobsite accidents. Bad
actors who neglect safety rules and put their employees at risk should
be punished to the fullest extent of the law. At the same time, it is
important to recognize that the vast majority of employers care about
their employees' safety and strive to run clean jobsites that are safe
and efficient. By working cooperatively to educate employers about the
necessary workplace safety techniques and procedures, agencies such as
the Occupational Safety and Health Administration (OSHA) can help
continue the overall decrease in jobsite accidents that we have
witnessed over the past several years.
At Denier Electric, workplace safety is part of our culture because
it is the right thing to do for our employees and for our business.
Make no mistake about it, being an electrician can be a hazardous way
to earn a living. I can tell you, from personal experience, that our
workplace safety practices and techniques are dramatically improved
from 20 years ago, and that they are continually evolving to meet the
high expectations that we set for ourselves.
That is why Denier encourages and practices workplace safety
techniques through its own training and education programs, as well as
the resources of our trade association, the Independent Electrical
Contractors (IEC).
Safety on the jobsite must be part of everything we do as a
business, it must be part of Denier Electric's culture, if we want to
be effective. To put this in context, I believe it will be beneficial
if I give you real world examples of how Denier makes safety part of
everything that our employees do.
First, all of our employees receive training in what we call
``safety indoctrination'' before they ever set foot on one of our
jobsites. Our electrical apprentices receive OSHA training as part of
their educational program. Additionally, there is OSHA 30 hour training
for all Denier Electric employees. Along with that, each Denier
Electric employee completes all of the industry recognized safety
courses required for their field of employment. Denier Electric also
offers a Drug Free Workplace Program, and offers rehabilitation
assistance for anyone in need.
On every one of our jobsites, each day begins with a ``pre-shift
huddle'' where management and employees perform a hazard analysis of
that particular jobsite. Denier's safety director also conducts site-
specific training for each job, and Denier employees are provided with
the necessary personal protective equipment for every job. Along with
that, we initiate a daily ``frequent regular inspection'' of each
jobsite, conducted by management and an employee representative.
Denier performs incident investigations, should an accident or a
``near miss'' occur. These investigations are conducted by a team
composed of management, employees, and an outside safety consultant.
Secondly, we utilize employee incentive programs to continually
improve the safety of our company. I understand that some are critical
of incentive programs, but I have seen firsthand that a properly run
incentive program produces tangible results.
Our incentive program rewards individuals with good safety records,
individuals who exceed our own training requirements, and individuals
who volunteer to serve on our safety committee. In order to ensure that
this program is truly effective, Denier's incentive program is reviewed
annually by a committee of employees, management, and an outside safety
consultant.
A safe jobsite is a productive jobsite, and, as you can see, at
Denier we take our safety programs very seriously and do everything we
can to make our workplace safe.
As I mentioned earlier, Denier belongs to IEC, which is an
organization that is very active in promoting and educating its members
about jobsite safety. IEC provides its members and their employees with
numerous tools and resources to improve their work sites.
A key to making progress with jobsite safety is continually
educating contractors. Often times, employers may be unaware of the
latest changes to safety regulations. OSHA's cooperative programs, with
organizations such as IEC, serve as a valuable conduit for ensuring
that the busy contractor is kept up to speed on the latest regulations
and workplace practices.
One of the keys to IEC's safety program is its Alliance program
with OSHA. As part of IEC's agreement with OSHA, IEC commits to
educating its members about OSHA regulations as well as relaying the
best industry practices that are being promoted by OSHA.
At the same time, IEC can assist OSHA in ensuring that its guidance
and regulations are effective and realistic. The Internet has allowed
so much more information to be available to business owners, large and
small. OSHA and IEC are using this resource to better educate
contractors about the value of jobsite safety, as well as providing
contractors with the resources to make safe jobsites a reality. IEC, as
part of its Alliance program with OSHA, works with OSHA officials to
produce informational pieces and articles--such as ``e-Tools''--that
are available through OSHA's web site, as well as IEC's.
An excellent example of this partnership is IEC's Jobsite Safety
Handbook, which was produced in cooperation with OSHA. The idea behind
this Handbook is to provide contractors with a pocket-sized guide for
their supervisors and employees in order to provide on-site guidance
for the often complex problems that electricians can face every day.
Since its production last year, IEC has distributed more than
25,000 copies of this guidebook to its contractor members, and more are
being printed in order to meet the continued demand for this useful
resource.
I am proud that Denier Electric is currently beginning the
application process to participate in OSHA's Voluntary Protection
Program (VPP). VPP is yet another example of OSHA working with industry
to continually improve the workplace through cooperation and
recognition of the best practices.
If I may conclude with a point that I made at the beginning of my
testimony, I believe that the most effective action for government is
to aggressively promote its educational partnerships with the industry
so that more employers have the resources to improve their workplace.
By working together, industry and government can provide employers
with the educational resources they need to prevent accidents before
they happen.
Programs such as OSHA's alliances are effective and will continue
to be so with the proper support from Congress.
I would like to again thank the Committee for this opportunity, and
I encourage you to work with your constituents--both employers and
employees--to cooperatively improve jobsite safety.
______
Chairman Miller. Thank you. The committee will recess for a
few minutes to run over, vote and come right back.
[Recess.]
Chairman Miller. The committee will come back to order.
If we can get the people behind the witness table to take
their seats please. These current votes are unexpected so we
are going to see the best we can do here.
Mr. Ayers, welcome, and we look forward to your testimony.
Okay. Let's go. Thank you.
STATEMENT OF MARK AYERS, PRESIDENT, BUILDING AND CONSTRUCTION
TRADES DEPARTMENT, AFL-CIO
Mr. Ayers. Thank you, Mr. Chairman. I want to thank you for
providing me this opportunity to appear before you today and to
discuss the very important issue of construction worker safety
and health.
The building trades are comprised of 13 unions,
representing 2.5 million craft professionals in the United
States and Canada. We have a 100-year track record of improving
working conditions for construction workers, both union and
nonunion alike, because regardless of union affiliation every
construction worker in America has the right to a safe and
healthful workplace.
Unfortunately and all too often today, many construction
workers will die, be injured, or become ill due to hazardous
exposures on the job. After 20 years of steady improvement in
construction safety and health, we suddenly find ourselves in
the midst of a safety and health crisis. In the last 12 months,
17 construction worker deaths have occurred in the Las Vegas,
Nevada area. These deaths and numerous others, along with the
sudden increase of construction crane accidents that have
occurred recently throughout the United States, have drawn
attention once again to the dangerous nature of construction
work.
Few people understand that on average four workers are
killed every day on U.S. construction projects. Yes, you heard
me correctly, four deaths every day. That equates to over 1,400
workers each year. Statistically, there is a much better chance
of surviving a tour of duty in Iraq than there is in coming
home from a construction project in our homeland. That is 10
times the number of firefighters who are killed each year, 10
times the number of law enforcement officers killed, more than
20 times the number of miners who are killed each year. And for
every worker killed, several hundred workers are seriously
injured.
Mr. Chairman, I submit that if, God forbid, 17 police
officers had perished in the line of duty we would see the
National Guard patrolling the streets of Las Vegas. And if two
miners became trapped in an underground mine accident,
television networks would interrupt their regular programming
for live coverage of the rescue effort.
Nevertheless, it seems as though American construction
workers are viewed as disposable commodities. It is an absolute
outrage and it is something that I take very personally.
Construction workers make up only 8 percent of the U.S.
workforce, but we account for more than 22 percent of all work-
related deaths. There is no question that the vast majority of
the deaths, injuries and illnesses that occur in construction
are preventable.
The building trades' commitment to job site safety led us
to create in 1991 our own nonprofit institute, the Center For
Construction Research and Training, to work in partnership with
NIOSH and other organizations. Over the years, the center has
made substantial progress in improving construction safety.
Unfortunately, that progress is now being reversed.
The responsibility of job site safety rests with employers
and with OSHA. Today, in our opinion, both are falling far
short of meeting their responsibilities. Therefore, the
building trades submit that five major actions are urgently
needed.
One, we must have a dedicated Construction Occupational and
Safety Health Administration, just like the Mine Safety and
Health Administration.
Two, we need an OSHA temporary emergency standard requiring
that all workers in the industry are trained and certified in
accordance with the basic 10-hour OSHA safety and health
training program.
Three, OSHA must promulgate a crane safety standard.
Four, OSHA should increase job site enforcement activities.
Five NIOSH funding should be increased for construction
safety and health research.
Mr. Chairman, 2 weeks ago, over 6,000 construction workers
walked off the Las Vegas City Center project after the sixth
construction fatality occurred at the site. In negotiations
between the general contractor and local construction unions,
we have seen to it that all workers at City Center and the
workers at an adjacent project are being trained in the basic
OSHA 10-hour safety program. Our analysis found that roughly
5,000 workers are without the basic OSHA 10-hour training. Why?
Because this basic training is voluntary, and until now the
contractors on those jobs did not require it.
The building trades believes it is our moral obligation as
worker representatives and industry leaders to make sure
construction workers have safe and healthy workplaces. With the
help of this committee and the Congress as a whole, we can
achieve that objective.
Thank you, Mr. Chairman, for your interest in construction
safety and health.
[The statement of Mr. Ayers follows:]
Prepared Statement of Mark H. Ayers, President, Building and
Construction Trades Department, AFL-CIO
Mr. Chairman and distinguished members of this Committee, I want to
thank you for providing me with the opportunity to appear before you
today to address the very important issue of worker safety and health
in the construction industry.
My name is Mark Ayers, and I am the president of the Building and
Construction Trades Department of the AFL-CIO. I am a 36 year member of
the IBEW, the International Brotherhood of Electrical Workers, and have
served in various leadership positions prior to being elected as
president of the Building Trades Department last year.
My organization, which I will refer to as ``the Department'', is
composed of 13 international/national unions representing 2.5 million
construction workers in the United States and Canada. The Department
and its affiliated unions have a long history of improving working
conditions for construction workers--both union and non-union alike. In
fact, many of our organizations were founded over 100 years ago for
that very purpose.
Introduction
I am here today to address the safety and health of all
construction workers in this country: union and non-union alike. All of
these workers enjoy the right, under federal and state law, to a safe
and healthful workplace. Yet, many continue to die, incur injuries,
and/or become ill due to exposure to dangerous substances on the job.
You have convened this hearing because of the critical point at
which we find ourselves in today. We appreciate your concern. After 20
years of steady improvement in construction safety and health, we
suddenly find ourselves in the midst of a safety and health crisis.
While the safety and health of construction workers has long been a
priority of the Department, it's the alarming number of construction
worker deaths that have occurred in Las Vegas--12 workers have died in
just 16 months--hat brings us here today. These deaths, along with the
dramatic collapse of two tower cranes in New York City and other recent
crane incidents in cities across the nation that have killed and
injured construction workers, bystanders and even first responders,
have drawn the media's attention to the dangerous nature of
construction work.
Of course, this is not a new subject for those of us in the
building trades. While we mourn the loss of every one of these workers,
we know that by the end of this day, another four construction workers
may lose their lives. And tomorrow, another two. And the next day,
maybe six.
We know this because an average of four workers are killed every
day on U.S. construction sites. Yes, in our nation we lose, on average,
four construction workers a day, some 1,200 to 1,500 workers each year.
That's 10 times the number of fire fighters who are killed each year,
10 times the number of law enforcement officers killed in the line of
duty each year, and 20 times the number of miners who are killed each
year. And, for every worker killed, several hundred workers are
seriously injured. If the carnage that takes place in the construction
industry happened in any other industry there would be a national
outcry. Yet, the only way we seem to be able to get attention to this
huge problem is when a crisis hits, like the one we are faced with now.
Think about it. It is an absolute outrage.
Construction worker deaths usually do not get front-page coverage.
For the most part, they are usually single incidents--like an
electrocution in New Jersey, a fall in Texas, a trench collapse in
South Carolina, or a bulldozer rolling over on its operator in
California. But let me tell you, they don't go unnoticed by other
workers in the construction community. We know what it's like to lose a
friend, and to see his or her family suffer.
In 2006, 1,239 construction workers were killed on the job, or died
as a result of their injuries. Construction workers make up only 8
percent of the U.S. workforce, but account for more than 22 percent of
all work-related deaths.
In 2006, according to BLS reports, 412,900 construction workers
experienced injury or illness, of which 153,200 cases were serious
enough to require days away from work. However, recent studies show the
BLS survey may miss half to two-thirds of all injuries due to
underreporting. Moreover, the misclassification of workers as
independent contractors means many more injuries are unaccounted for,
since self-employed workers aren't covered by OSHA or the BLS survey.
Less than 2.5 percent of the cases are from a work-related illness,
but please don't let this low percentage fool you. Unfortunately,
hundreds or even thousands of construction workers are being exposed at
this very moment to an array of substances, such as asbestos,
hexavalent chromium and silica, to name a few, that will cause disease
years from now.
The sad fact is that we as an industry and as a nation really have
no idea how many construction workers die each day from disease
resulting from job site exposures. Moreover, family members, including
children, have often been exposed to these harmful substances as well.
Those of us intimately involved in construction safety and health
know that these deaths, injuries and illnesses are, by and large, all
preventable. The outrageous number of fatalities in Las Vegas combined
with crane incidents in New York and elsewhere has brought attention to
the issue. Now that we have the attention of the media, the public,
and, most importantly, the United States Congress, it's time that we
talk about the construction industry as a whole and what needs to be
done about it.
Describing the problems
Workers falling to their deaths in the construction industry are
not unique to the Vegas strip. Falls are the leading cause of death in
our industry. They make up about one-third of all construction deaths.
Fatal falls from rooftops are the most common, followed by falls from
scaffolding and ladders. Fatal falls from girders, attributed to some
of the deaths in Las Vegas, make up only 8 percent of fall fatalities.
Workers who walk the iron have the highest rate of death among all
other occupations in construction. Fortunately, due to a focused effort
by all industry partners, death rates during steel erection have
steadily declined over the years. That is a positive example of what
can be done to improve safety and health conditions when there is a
firm commitment to it.
It was the Department's commitment to improving safety and health
conditions in the construction industry that almost 20 years ago led it
to create our own non-for-profit institute-CPWR: The Center for
Construction Research and Training. CPWR is nationally, and even
internationally, recognized as a leading organization in the field on
construction safety and health research and training. Through its
partnerships with NIOSH, NIEHS, and DOE, CPWR has developed an
impressive network of over 30 collaborating organizations, including
universities, as part of its national construction safety and health
research and training center. Since 1990, the CPWR has been a major
participant in the NIOSH construction initiative.
CPWR currently has over 25 construction safety and health research
projects underway, mostly involving development of specific
interventions for hazards, such as falls and electrocutions. CPWR has
developed and delivers an array of construction safety and health
training courses to thousands of construction workers every year. CPWR
also publishes the Construction Chart Book, now in its 4th edition, a
copy of which will be submitted with my written statement. The Chart
Book compiles everything there is to know about the U.S. construction
industry and its workers based on the national data available to us. It
goes into great depth about what we know about construction industry
fatalities, injuries, illnesses, and hazards.
As president of the Department, I also serve as president of CPWR.
I'm extremely proud of the accomplishments of CPWR over the years. It's
one of the most successful public-private partnerships in the
construction industry, or any industry for that matter when it comes to
occupational safety and health. The National Academy of Sciences
reviewed the NIOSH construction program last year. While the Academy's
final report has not yet been released, I'm confident that it will
point to CPWR's national construction center as a key element of the
NIOSH construction research program.
Through the work of CPWR and others we have characterized the
problem and advanced the state of knowledge about construction safety
and health significantly over the last two decades. In areas where we
have had special emphasis efforts, such as preventing falls and
electrocutions, we have seen significant progress over the past 20
years. Unfortunately, that progress in now beginning to be reversed.
Why is the progress being reversed? Research entities can produce
useful information, and unions can push for, and even bargain for
safety and health provisions as part of the collective bargaining, but
both as a legal and practical matter, employers are ultimately
responsible for the safety and health of employees, and Occupational
Safety & Health Administration (OSHA) is responsible for enforcing
construction safety and health laws. In our opinion, both are failing
us at this time.
Recommendations
In our opinion, five major actions are urgently needed at this
time:
1. We need an OSHA temporary emergency standard requiring that all
workers in the industry are trained and certified in accordance with
the basic10-hour OSHA safety and health training program.
2. We need OSHA to promulgate a crane safety standard.
3. OSHA needs to increase enforcement activities.
4. We need a dedicated Construction Occupational Safety and Health
Administration, just like we have a dedicated Mine Safety and Health
Administration.
5. We need to increase NIOSH's funding for construction safety and
health research consistent with the recommendations of the soon-to-be-
released National Academies Review.
Two weeks ago over 6,000 construction workers walked off the Las
Vegas City Center project after the sixth construction fatality. In
negotiations between the general contractor and local construction
unions, it was agreed that CPWR would put in place a system to train
all site workers at City Center, and the adjacent Cosmopolitan project,
in the OSHA 10-hour training program. Our estimate is that
approximately two-thirds of the workers on both sites, or roughly 5,000
workers, have not had the basic OSHA 10-hour hazard awareness training.
Why? The basic training is voluntary and until now, the contractors did
not require it on the site.
This is not unique to these two projects in Vegas, and it brings me
to my first point about what needs to be done as a general rule in the
construction industry. OSHA needs to promulgate a construction training
standard, making it mandatory for every construction worker to have, at
a minimum, the basic 10-hour safety and health hazardous awareness
training. We've seen several states enact legislation requiring this
training, and it's time a rule is enacted at the national level.
Surely, requiring that workers engaged in this very hazardous industry
have basic safety and health training is not asking for too much.
We also need to take serious steps to change the safety and health
culture on construction sites, so everyone participating in the
construction process-from the owner to the general contractor and
subcontractors to the workers-understands the premium placed on working
safely. As a first step in achieving this objective, we call on OSHA to
require every construction project to have a written safety program and
plan that clearly spells out the safety and health requirements of the
site, the respective roles of the OWNER, contractors, subcontractors
and employees, and the systems for identifying and minimizing hazards.
Also on the issue of standards, in 2004, a group of labor,
industry, and government safety and health professionals reached a
consensus on a standard for crane and derrick safety in the
construction industry. After four years, OSHA has indicated its plans
to publish the standard for public comment in August 2008. OSHA must
live up to this commitment, promulgate a final rule, and enforce the
new standard.
OSHA enforcement is particularly problematic in construction, due
to the transient nature of our industry. About 80% of U.S. construction
industry employers have 10 employees or fewer, and over 2 million
workers in the U.S. construction industry are classified, or should I
say misclassified, as self-employed or independent contractors. OSHA
needs to be more innovative in its targeted enforcement activities;
compliance operations need to be focused on those issues and violations
that are known killers in the construction industry; OSHA needs to
redirect the resources allocated to compliance assistance and alliances
to enforcement; and OSHA penalties for serious and willful violations
need to be enhanced so that there are serious consequences for serious
violations of the law, particularly in cases of worker fatalities.
Although there is value in forming partnerships to encourage
workplace safety, in my estimation the extensive resources OSHA has
devoted to alliances simply means the agency is spending its money on
contractors that are already performing at a relatively high level,
rather than reaching those medium to small employers that are willingly
or unwillingly putting their workers in harms way.
According to 2006 data there were a total of 876,229 construction
establishments in the U.S. In 2007 OSHA data indicates there were
49,666 construction inspections (combining Federal OSHA and State
Plans), meaning that it would take OSHA an average of 17.6 years to
inspect each construction establishment once. I don't know of many
construction projects that last 17.6 years, and I venture to guess that
there are thousands of employers in our industry that will never see an
OSHA compliance officer.
One has to ask what good are construction industry standards if
they are not enforced. Funding is certainly a critical issue, and the
Department has long been a proponent of OSHA's budget. However, I am of
the mind that, no matter how much funding is appropriated, our current
system may simply not work for this industry. I'm sure there are
members of this Committee more familiar with the legislative history
than I am, but I think we should explore the need for a dedicated
Construction Occupational Safety and Health Administration, just like
we have a dedicated Mine Safety and Health Administration. In the short
term, we need a stronger Construction Directorate Office within OSHA,
one that is willing to work with all industry stakeholders, and not
just with a selected few.
From before the OSHAct, it has been recognized that the
construction industry is different from other industries in many
critical aspects. It is very large, and it is very transient and
mobile. The worksites are temporary, with many different employers and
trades working on them simultaneously. The recognition of the need for
special OSHA approaches for this industry also goes back a long way.
The Secretary of Labor's Advisory Committee on Construction Safety and
Health existed before the OSHAct and was continued after OSHA to make
sure that OSHA's rules were responsive to the needs of the industry. In
1994, OSHA established a dedicated Directorate of Construction to make
its operations more attuned to the needs of the industry. Both of these
have been valuable resources, but they are not enough.
The Building Trades Department and CPWR are committed to improving
safety and health conditions for all construction workers. We will
continue to develop joint safety and health initiatives with our
employers, associations, and owners. We have enjoyed a longstanding
partnership with NIOSH, and we have made tremendous strides. Congress
needs to increase NIOSH funding for construction safety and health
research consistent with the recommendations of the soon-to-be-released
National Academies Review.
Twenty years ago there was no research being performed on
construction safety and health. Congress corrected that and began to
dedicate funding for construction safety and health research at the
National Institute for Occupational Safety and Health. By 1995 the
budget had increased to $12.1 million, which has remained unchanged in
13 years thereafter. As a consequence, the amount of funding available
after adjusting of inflation has significantly eroded the funding. It
is today equal to $1 per construction industry worker. That does not
say much for the priority that Congress places on construction safety
and health.
While it's not our responsibility under the law, it's our
obligation as trade unionists and industry leaders to make sure
construction workers' rights to a safe and healthy workplace are
honored. We can do better. We have to do better.
Again, I greatly appreciate the opportunity to appear before you
today.
Thank you, and thank you for your interest in construction safety
and health.
______
Chairman Miller. Thank you very much, and again thank all
of you for your testimony.
Mr. Foulke, it has been raised several times already this
morning, how come it is taking so long to do the crane safety
standard? My understanding was the negotiated rulemaking was
completed in 2004.
Mr. Foulke. That is correct. The negotiated rulemaking was
completed in 2004, and we have--what the negotiated rulemaking
completed was the regulatory text of the document. OSHA has--
and that reg? text is approximately 119 pages long currently.
As a result, we, OSHA, then had to then draft the preamble. The
preamble in this document is over 1,000 pages long. Once that
was completed, we had to go through the regulatory flexibility
analysis. We had the SBREFA review, which we had for small
business review, and then we had the Paperwork Reduction Act.
So we had to do all those things during that time period. Also,
we had to because of the--the standard had to be then
reviewed--the text of the standard had to be reviewed to ensure
that it was not in conflict----
Chairman Miller. How does that compare to other, the time
frame after other negotiated rulemakings?
Mr. Foulke. I don't----
Chairman Miller. Does it take 4 years for every other,
after you do negotiated rulemaking, does it then take 4 years
to get them in place? Is that standard?
Mr. Foulke. I'm not positive, but I believe it is
probably--unfortunately----
Chairman Miller. Do you know?
Mr. Foulke. I don't know right offhand but we can check
that out for you and get an answer for you.
Chairman Miller. Okay, in your statement, you talk, you
stated in 2007 for fall protection violations we issued 24,000
citations for a total of $33 million in penalties. What does
that tell us?
Mr. Foulke. What that tells us is that OSHA's enforcement
program regarding construction is working.
Chairman Miller. That 24,000 citations were issued and,
given your limited ability to inspect sites, this is a good
trend?
Mr. Foulke. No. It shows that our targeting inspection
program for identifying where the high hazard construction
sites are, where there may be problems, is working and that
we're getting to those sites and we are issuing citations.
Chairman Miller. So that 24,000 is the high targeted sites?
Mr. Foulke. I think we do have, we have special emphasis
programs throughout in construction.
Chairman Miller. I understand that. I'm trying to determine
what does that figure tell me?
Mr. Foulke. I think it focuses on obviously we are
inspecting those where the fatalities occur, because those are
automatic inspections. We are obviously--we have our----
Chairman Miller. There were 400 fatalities due to falls.
This is 24,000. I am just trying to determine--you suggested
this is a barometer of being aggressive. I don't know what
24,000 sites tell me. And if I divide that into 33 million it
tells me about $1,300.
Mr. Foulke. All I can say is I think it demonstrates we
have an effective safety enforcement program that is focused on
getting to the sites that have the problems and we are finding
the problems and correcting them, or having them abated.
Chairman Miller. I am going to ask you to provide
supporting evidence of that because I don't know that. I
understand that is what you are saying, but I don't know that
that is what it tells me. I don't know if 24,000 is small
because you couldn't get to enough sites. I don't than if it is
abusive because you got to sites you shouldn't get to. I don't
know what it tells me. It is a figure and a fine. I don't know
if $1,300 per incident is sufficient or not. It doesn't sound
like it. If these are serious, if these warrant violations and
serious infractions, if that is what the violation brought
about, I just--I can't decipher that information is what I am
saying.
Mr. Foulke. Perhaps we could break it down and provide the
committee some additional information how that breaks down. But
like I say, I really believe what that tells us is that our
enforcement program, our targeting system, our national, local
and regional emphasis programs are focused on the sites we need
to be getting at and we are getting to where we need to get.
Chairman Miller. Mr. Cole, who is sitting next to you, his
brother-in-law was killed and there was no fine. There was a
preliminary fine, as I understand it, and then there was a
decision to remove that fine later on.
Mr. Foulke. That is my understanding based on his
testimony.
Chairman Miller. So you went from a preliminary fine to--of
the employers, there was some investigation, preliminary
citation fine was issued, and then later it was determined it
was entirely the fault of the worker and no fine was issued.
Mr. Foulke. Mr. Chairman, that came under Nevada OSHA. And
the question then becomes--I don't know exactly what was all in
part of that. There is the employee misconduct defense. That is
a defense that has been recognized by the review commission,
the Federal courts and State courts. I don't know if that
played in it because once again we don't have jurisdiction over
Nevada OSHA. So I don't know what was involved in the
negotiations. If they determined that they didn't have the
evidence to support the violations or not, I don't know.
Chairman Miller. Let me just follow up on that line with
the indulgence of my colleagues here. Nevada OSHA is one of the
States like California. Nevada OSHA has been certified by the
Federal Government. They run their health and safety as we do
in California.
Mr. Foulke. That is correct.
Chairman Miller. In the case that I cited in my testimony
and is laid out more exhaustively in the Las Vegas Sun, time
and again there are assessments and fines filed, and then time
and again, after essentially what becomes a private meeting
between the employer and Nevada OSHA, those fines are
substantially reduced or waived together.
You have no authority to look at that enforcement to see
whether or not that is sufficient or not, absent questioning
the whole program, is that correct? You don't get to intervene
under current law as to whether enforcement or training or
these various components of that are adequate?
OSHA might have certified Nevada 13 years ago to do this. I
don't know when they did. And at that point it is their ball
game, as I understand it.
Mr. Foulke. I was looking here. They had relinquished full
authority back in April 2000 from Nevada. But to answer your
question, just like in California too, once we provide, give
full authority to the State plan, then they have full
jurisdiction over their safety and health program. We can,
though, however, issue--or go in as part of--what is it
called--HAFVA, which is a complaint that allows--Federal OSHA
is a complaint about a State planned State on a particular item
that we can go in and that is given to usually to the regional
administrator and they do an investigation on that particular
State plan. We also do studies and we actually are doing a
current study. We had a complaint regarding the settlement in a
New Orleans hotel site settlement so we are looking at those
too. So we can go in, but it is limited.
Chairman Miller. I raise that point because in your
testimony and you have said before in your appearances before
this committee that these fines are an important part of your
operation, and yet we see in this case Nevada OSHA is waiving
what you considered an important enforcement tool at the
national level. I am not holding you responsible for what they
are doing. I am just saying somehow there is a different view
of the universe here in terms of the role that these fines play
in helping to diminish the accident rate and the ability to
enforce the law.
Mr. Foulke. Well, like I said, once again because it was
Nevada OSHA I am not sure what was all involved. But you need
to understand as part of the settlement process that are
utilized by both the Federal program and all the State programs
is that when an employer has been issued citations and once
those citations have been contested, there is no requirement
under the act to abate those sites, those hazards until there
is a final order of either the review commission or the State
review commission, which is however it works out. And normally
during the settlement process what you have is there is
sometimes reductions in the penalty amounts or even the
classification of the penalty, but in turn, and part of the
reason is to get immediate abatement of the hazards so that the
employees are protected from the safety and health hazard that
has been identified, but secondly normally, I know from the
Federal OSHA standpoint and I know from my past practices as an
attorney representing employers in this area, there was always
a requirement when there was a penalty reduction that something
else would be given, done by the employer that was not required
under either the standard or the act.
So in effect you are getting some things for the penalty
reduction, but with respect to this particular item I don't
have the information because, like I say, it was handled by
Nevada OSHA.
Chairman Miller. I have run out of time. But I would just
notice that in the Las Vegas Sun story again, Perini
Construction Company is involved in four of these cases and yet
fines continued to be reduced. There is something wrong with
that enforcement plan, but we will come back to that.
Mr. McKeon.
The gentleman is recognized for 5 minutes plus.
Mr McKeon. Thank you, Mr. Chairman. Secretary Foulke, in
Mr. Cole's testimony he criticized OSHA for issuing a
compliance directive in conflict with the underlying steel
erection regulations. Can you explain the controversy and why
OSHA has taken the position that it has?
Mr. Foulke. Yes, sir. The steel erection standard was once
again a negotiated type of rulemaking where we had industry and
the unions and the government involved in that, in preparing
the materials. One of the biggest issues--and if you--actually
I have the preamble here. If you look at the preamble, the most
contentious issue in this whole development of the steel
erection standard was fall protection. There was a desire to
have 100 percent fall protection included in the final rule.
When the final rule, there was a draft final rule proposed that
had 100 percent fall protection in there. And it was
distributed to all the stakeholders who were involved in the--
excuse me, in the standard, in the rulemaking. At that point
there was a request I believe from the iron workers, but there
may be other groups that were involved, to include exceptions
that were previously included in the proposal, the proposed
regulation, the post-steel erection regulation. And the final
rule was determined to have the two exceptions, and two
exceptions to 100 percent fall protection was for the--was
dealing with the connectors and the deckers from 15 feet to 30
feet and also dealt with the shear stud issue. Those were the
two things which said that you do not have to have fall
protection, you do not have to have 100 percent fall
protection; in other words, you have to be tied off. You can
have either a decking or netting below it at either two stories
or 30 feet.
Just as an example, that is 30 feet. If you fall from that,
if I fell backwards off of that and landed on this floor, the
likelihood of me surviving is low because if you look at--the
data shows that most of, over 50 percent of the fatalities are
less than, from falls of less than 30 feet. So we had that
problem. And so the question was--and it was presented to my
predecessor, Mr. Henshaw--is if an employer instead of
requiring to have the decking at 30 feet or two stories or 30
feet, whichever is less, and with respect to shear studs, if
they didn't have the shear studs, instead of having shear studs
installed at the site as opposed to shop installed studs, that
if they were using 100 percent fall protection; in other words,
if they were tied off at all times when they are on there,
would that be a violation of the standard? And the
determination by Mr. Secretary Henshaw or Assistant Secretary
Henshaw was that if they were using 100 percent fall
protection, that they were tied off completely, that he took
the position that that was as effective safety protection,
actually it was more safety protection because--than what was
provided in the standard because if a person falls from there,
from a lanyard he will fall five to six feet instead of falling
30 feet. And that is basically how it came out. But it was a
contentious--if you read the standard--excuse me, read the
preamble of the standard it says this is one of the most
contentious issues of the standard.
Mr McKeon. So in the case that we are talking about, of
Rusty, they didn't have the 30-foot or two-story protection
because he was supposed to be tied off then? Was he supposed to
be doing one or the other on this job?
Mr. Foulke. Which one.
Mr. McKeon. On the job that we are talking about.
Mr. Foulke. The fall protection, I am not sure if--I am
assuming he was above--was at between 30 and--15 and 30 feet
because if he was above 30 feet then 100 percent fall
protection would be required under the standard.
Mr McKeon. So what is 100 percent protection?
Mr. Foulke. One hundred percent protection is that they are
in a harness, with a lanyard and attached to an anchoring point
or a safety line.
Mr. McKeon. So if you are working above 30 feet, everybody
is supposed to have that so that----
Mr. Foulke. That is right. It is interesting if you read
the standard. This is--the standard that was written is kind of
unusual because the standard actually requires the employer to
provide fall protection. There is a separate section other than
the decking and netting section that requires fall protection,
1926760? requires that the employer provide all the fall
protection, the belts, the harnesses, whatever the fall
protection, the lanyards, the lifelines, and the employees are
supposed to wear the equipment. But the standard does not
require them to hook off. And it is spelled in the preamble. It
is just--it was an unusual standard when it was promulgated.
Mr McKeon. Who sets that standard?
Mr. Foulke. OSHA proposed the standard and--but we worked
with the committee to get to provide----
Mr McKeon. And you signed off on something that didn't
require----
Mr. Foulke. No, no, this was----
Mr McKeon. I don't mean you personally.
Mr. Foulke. It was promulgated in the Clinton
administration.
Mr. McKeon. I wasn't meaning you personally. OSHA signed
off on an agreement that indicates 100 percent protection but
if you don't clip off, you don't have the 100 percent
protection.
Mr. Foulke. No, it is only between the 15 and the 30 feet
that you actually have to provide--between--anything over 30
feet or two stories they have to be hooked on by standard.
Between 15 and 30, there is an exception.
Mr McKeon. Then how could he die if he was doing this?
Mr. Foulke. If he was connected to the lifeline, if he had,
if he was following the rules--either one way or the other,
either you had decking or netting----
Mr. McKeon. But he was above 30 feet. He was at 60 feet.
Mr. Foulke. No--well, he may have been. I don't know but--
--
Mr. McKeon. Mr. Cole stated that he fell over 59 feet.
Mr. Foulke. Oh, this was--you are talking about--that one I
am not sure. I don't know the facts of that case, to tell you
the truth. I don't know if there was--there was something
about--I don't know if he fell between a hole in the flooring
or not. That is what I had read. I think there was something in
the newspaper said there was a hole in the flooring.
Chairman Miller. Do you want to respond quickly?
Mr. Cole. I will respond, when he is done.
Chairman Miller. He's done. That is one of the wonderful
things about being chair of a committee.
Mr. Cole. Two things I want to respond on is that sub part
(r) clearly states that there will be one floor or 30 feet. It
also states tie off. But that rule is being misinterpreted
because the iron workers worked through the nineties to get
this thing on. And it wasn't just to protect the iron worker
from a fall. It is to protect the people in the other trades
that work underneath the 30-foot. If an iron worker or anybody
or the wind would drop one item through that hole to a person
that is walking on a floor that is being finished, studs are
going down, and electrical is going in the floors, that can
kill somebody with a 60-foot drop and that is why they want 30-
foot.
It also makes it so other crafts can work underneath the
iron workers as they go up the building. So the 30-foot hole
and the tie off are two separate issues. And we need to
separate them for a good accountability of what is right and
what is wrong.
Chairman Miller. Thank you. Mr. Kildee.
Mr. Kildee. Thank you, Mr. Chairman. Mr. Foulke, the
presence of cranes in any city is an indicator of generally
economic growth. That economic growth ordinarily would indicate
that we can afford the best safety enforcement possible. What
governmental or fiscal factors interfere with us in providing
that safety enforcement? Is your budget inadequate or is your
enforcement authority inadequate?
Mr. Foulke. Well, Congressman, I would just state this, if
you look at the fatality rates in both general industry and
construction, they have to be continually going down. So I
would say that what we are doing, how we are targeting that in
our enforcement efforts, our targeting enforcement, but also
our outreach program. I mentioned about the 1.6 million
employees that have been trained on the OSHA 10-hour course as
a result of our outreach to that. So I can't say that--well I
guess I can say I think our efforts are working. We have our
effective enforcement, we are targeting them, we are doing the
training programs. We are doing partnerships and our
partnership programs have been very effective, especially in
construction because that is kind of where we focused our
emphasis on the partnerships because most of the--over 50
percent of the partnerships are construction. And the idea
there is to help develop training programs, best practices,
model policies, whatever it takes, we are working together and
I think it was mentioned by one of the other speakers in their
testimony, that that is part of what we have to do. We have to
train the employees and we are doing that I think pretty
effectively; 1.6 million since 2004 to me is as effective as a
lot of people being trained on the OSHA 10-hour course and 30-
hour course.
Mr. Kildee. How does our construction death record compare
with European countries or Canada?
Mr. Foulke. I don't know the answer to that, to tell you
the truth. But I think we can get that information. I don't
know how they keep records. All I can tell you--what I can tell
you though is that there has been a decrease in workers comp
claims both in the United States, in Canada and the European
nations. So I think there has been a general trend. I think the
injury illness and fatality rates have been pretty much
trending the same way in those countries.
Mr. Kildee. Well, the Center for Construction Research and
Training indicates that Finland, Norway, Germany, Australia,
Canada, Switzerland, Sweden have less than half the fatalities
in construction than does the United States. Now it would seem
to me that it is not meant to be personal but you should know.
You are the guy in charge. You should know how we compare. I
mean, I look at many things to see how we compare. It would
seem to me that of all people in the country you should know
how we at least compared to--Canada is 60 miles from my
district. And Canada's rate of death is about half in the
construction industry. What are they doing right that we aren't
doing?
Mr. Foulke. Well, Congressman, I would say that once again
our injury illness and fatality rates have continued to go down
both in general industry and construction. So we are--I think
we are making progress. Why Finland or even Canada or
Australia, their rates may be low, and I don't know, not having
seen the data, if there is the type of construction that they
do or the amount of construction that they do. In Nevada we are
talking about one project that has 7,000 employees on the site,
just one project.
Mr. Kildee. Canada is very similar to the United States.
They are part of the NAFTA agreement. I can go either north,
south, or east to get to Canada, within a matter of 1 hour. So
I see that regularly and you look across the Detroit River and
you see the cranes there in Windsor and they are doing a lot of
construction there and yet half, that is a pretty good record,
half of what we have. Why are we not emulating Canada?
Mr. Foulke. Like I say, I don't have--I haven't seen the
data and so I would have to look at the data before I can give
you an answer, and I would be happy to do that.
Mr. Kildee. I suggest you look at the data and visit
Canada. It is a nice country. I see it regularly, and I see
cranes there all the time. Just go to the Detroit River there
and look on both sides and Canada is doing a lot of
construction, yet their death rate is half.
I yield back.
Chairman Miller. Thank you. I want to recognize Mr. Kline.
Before I do, I just want to say the committee has been joined
by Congresswoman Shelley Berkley, who represents Las Vegas.
Mr. Kline.
Mr. Kline. Thank you, Mr. Chairman. I want to echo Mr.
Kildee's notion that we should all visit as many countries as
possible. I am not sure if he was limiting it to Canada. But it
is always a good idea to see how the rest of the world works.
Mr. Kallmeyer, I must admit I am looking at your lapel and
what that pin might be. I was going to speculate it looked like
flags. Could you tell us what that is?
Mr. Kallmeyer. Yes, sir. It is Marine Corps and----
Mr. Kline. Outstanding. Thank you very much. I thought it
might be. It just looked a lot like mine.
Mr. Kallmeyer. Semper fi, sir.
Mr. Kline. Semper fi, sir, and welcome. It is nice to have
you on the committee. Mr. Kallmeyer, continuing with you, last
week, I think it was last week, in this committee we heard
testimony that employers were underreporting injuries and
illnesses. And we also heard from some that safety incentive
programs may encourage workers not to report injuries.
Interesting concept. Your testimony outlines the Denier
incentive program as successful and describes how it helps to
ensure a culture of safety. Could you tell us how and elaborate
on that a little bit?
Mr. Kallmeyer. Yes, sir. At Denier Electric Company our
incentive programs are heavily based on collaboration; that is,
cooperation between employees, between management, field
management, senior management, and outside consultants. Our
incentive plans are based upon the end result, which is a safer
job site. The individuals wind up with a reward for their
contribution to that end result. If the overall safety results
were not improved, they were not better than industry averages,
there would not be any incentives there.
Mr. Kline. So there is no incentive for an individual to
not report in the way you have it put together?
Mr. Kallmeyer. Absolutely. If there is an unsafe situation,
if there are employees who are not participating in education,
who are not getting certifications for their lift operations or
their trench ensuring operations or their lockout-tagout
certifications to prevent electrocution, it is recorded. And if
they aren't participating, they are not included in those
incentives.
Mr. Kline. Thank you. Thank you very much, Mr. Chairman. I
yield back.
Chairman Miller. Thank you. The gentlewoman from New York,
Ms. McCarthy, is recognized for 5 minutes.
Mrs. McCarthy. Thank you, Mr. Chairman, and I appreciate
having this hearing. Mr. Foulke, what are the things--and I
don't know if anybody had heard this question. I didn't hear
it--well, actually I did hear it a little bit. I know every
time we ask if you had enough money to be able to run the
program as it should be, we always have well, no, we do all
right, and yet we see that there is such a shortage of OSHA
inspectors going around. When you look at New York they have
done a terrific job on having certainly a very, very large
amount, probably 20 times more than what you have in the city
alone, but one of the other things that I wanted to ask you
also when you were talking about the safety and how on training
the employees, is that voluntarily or is that mandatory?
Mr. Foulke. Madam, it depends on the particular State.
There are some standards that have specific requirements for
training. And it depends on which standard you will be looking
at. So as a general rule training is not--it depends on the
standard, I guess I have to say.
Mrs. McCarthy. So some States make it mandatory, some
States don't make it mandatory; it is voluntary?
Mr. Foulke. If it is in the standard, if it is a State plan
then they have to be as effective--it would require them to
have at least the same level of coverage that the Federal
standard has.
Mrs. McCarthy. One of the problems that I see in looking at
the testimony, Mr. Ayers, they do contracting where it becomes
mandatory, if I understand from your written testimony, on
training has to be mandatory. That is part of the contracts
through the unions.
Mr. Ayers. That is correct in some cases. But to answer
your specific question, training is voluntary. But the
difference is we need our employers to demand that anyone
reports to a construction site has at minimum a 10-hour OSHA
card.
Mr. McCarthy. Exactly. That is what I am trying to get at.
Why can't we make it mandatory that everybody goes through 10
hours of training through OSHA?
Mr. Foulke. Well, I mean there is a mandatory training in
construction, but it is not the 10 or 30-hour course. I mean we
could--obviously there could be a--a standard could be
promulgated on training to require the 10 or 30-hour course.
But once again----
Mrs. McCarthy. Do you have enough people to actually do it?
Just say it was mandatory or even voluntarily. Do you have
enough inspectors to be able to even carry that through?
Mr. Foulke. Well, even if the construction--if we had the
mandatory 10 or 30-hour course, we would handle that through
our OSHA Training Institute. We also have ed centers with
universities and community colleges around the country who are
doing that already. We trained--from 2004 to the present we
have trained 1.6 million employees on the OSHA 10 and 30-hour
courses. So we are doing the training. We would have the
ability to do it through our ed centers, I believe.
Mrs. McCarthy. I am just thinking about a lot of the--you
know, you had mentioned in your testimony that we are seeing a
lot more Hispanic workers on the job and, yes, you have done a
program as far as putting things up as far as safety issues in
that particular language. But again with those that are not
union contracted, have they had even the correct training to be
doing the job that they are doing?
Mr. Foulke. Well, once again I would say that we do have
mandatory training in construction. It is not the 10 or 30-hour
course, but we do have--and of that 1.6 million that have been
trained, I don't know--we don't have a breakdown--or I don't
have a breakdown as to whether that is all union or nonunion or
who it is.
Mrs. McCarthy. All right. Maybe you have another number for
me. How many construction workers do we have total in this
country? Ballpark figure.
Mr. Foulke. I am trying to remember. I have seen the figure
but----
Mrs. McCarthy. Mr. Ayers?
Mr. Ayers. We estimate 12 million.
Mrs. McCarthy. 12 million. So we have trained under your
estimate 1 point?--the whole idea about OSHA, isn't it supposed
to be prevention?
Mr. Foulke. Yes, ma'am.
Mrs. McCarthy. Well, we haven't even touched the surface
then.
Mr. Foulke. Once again it is the employers' responsibility
to make sure they do receive the basic training on
construction.
Mrs. McCarthy. But we are going around in circles here.
Basically you are saying the employer. And we know that a lot
of employers are doing their job, but it seems to me that an
awful lot of employers are not doing the job because we have
too many injuries and we have too many deaths on a yearly
basis, even though you are saying the numbers are coming down.
But maybe it is because there are some training programs. But
isn't it up to the Federal Government to have a standard that
all construction workers should go under a safety training
program?
Mr. Foulke. Well, once again the 1.6 million are the ones
that we know that have taken the 10 and 30-hour OSHA training
courses. We don't know what other safety and health training
other employees have received. We don't keep those numbers.
Mrs. McCarthy. Do you think it would be a good idea if you
had those numbers? Just so we would have a truer picture?
Mr. Foulke. It is difficult. The reason we have those
numbers is because they are being trained through our ed
centers around the country. There are other consultants, safety
and health consultants, there are thousands of safety and
health consultants around the country that do training, and the
employers may be providing training. And they may not be doing
the 10 or 30-hour course, yet they are doing a full program of
safety and health training for their employers and we are not
capturing that.
Mrs. McCarthy. What would you consider--if the employer is
doing a safety program and it is not the 10 or 30-hour program,
what would you consider the bare minimum that would actually
make our workers safer.
Mr. Foulke. I think under the standard they are supposed to
be advised and trained on the hazards associated with their
work sites, what they would normally be exposed to and be able
to train to avoid them and also training on personal
protection.
Mrs. McCarthy. Is it a 1-hour course? Is it a 2-hour
course? Is that a talk before they go on the job?
Mr. Foulke. A 10-hour course is much more comprehensive
than that.
Mrs. McCarthy. But it is not mandatory?
Chairman Miller. The gentlewoman's time has expired. You
can answer the question.
Mr. Foulke. We don't have the data. They may be being fully
trained through the employers' private consultants and not
taking the 10 or 30-hour courses. And I think it is up to the
employer maybe to design the course to be able to train the
employees on the hazards that they are going to be associated
with in their particular type of construction.
Mrs. McCarthy. I will yield back but it might be curious to
find out if Canada actually makes it mandatory for all safety
training.
Chairman Miller. I thought we blamed everything on the
Canadians. No.
Mr. Bishop of New York.
Mr. Bishop of New York. Thank you, Mr. Chairman. Thank you
for holding this hearing, and I thank the witnesses for their
testimony.
Secretary Foulke, it is my understanding that a process
took place from July of '03 through July of '04 with all of the
stakeholders associated with proposing new regulations for
crane safety. It is my understanding that that process resulted
in consensus among all of the stakeholders with respect to
draft regulations. Four years later OSHA has still not proposed
a final rule. I can understand, I think, that lapse of time
when the proposed rule or the draft regulations are
contentious. But my understanding is we have agreement with all
of the stakeholders and still we have 4 years elapsed with no
proposed rule.
Can you comment on that and help us understand why it would
take--when all of the stakeholders have agreed why would it
take 4 years to issue a proposed rule?
Mr. Foulke. Well, I would first mention the fact that the
first negotiated rulemaking regarding steel erection took about
9 years. They started in 1992 and finished in 2001.
Mr. Bishop of New York. Was that contentious or was that
also a consensus building process such as the crane regulation
process?
Mr. Foulke. The 100 percent fall protection issue was
contentious on that. But at the same time, there was no
requirement for----
Mr. Bishop of New York. If I could get you to focus on the
crane thing. Again, why it is it that it would take 4 years?
Mr. Foulke. Okay. The reg text is all that the negotiated
rulemaking team worked, the CDAC team developed. So we had the
regulatory text. That is 119 pages. From there we had to
develop the preamble which basically the preamble to any
standard basically spells out in detail what each provision is
determined to give kind of instructions to employers and
employees and all business organizations and the unions as to
what, why that particular item was put on that particular
standard.
The preamble to the cranes and derrick standard is over
1,000 pages long. So that all had to be drafted by the agency.
That was not drafted by the CDAC committee. Then we went
through, and we are dealing with a lot of different things. We
are talking about this is a very comprehensive standard. It is
dealing with ground conditions, assembly, disassembly, power
lines, electrocution issues, operator certification, safety
devices, signaling and inspection. So we have all these things
we had to work on and then we had to look at each one of both
the construction standards that were already in place to
determine if this somehow was a conflict. Then we had to go
through the regulatory flexibility analysis. We had to go
through the small business review process, small business
review, then we had the paperwork review. Then of course you
have to have the attorneys look it, and that is what is taking
so long. This is a major standard.
Mr. Bishop of New York. My understanding is that the White
House has decreed there are to be no final rules proposed for
OSHA standards subsequent to June 1. Will you request a waiver
of that standard so as to expedite the crane standard?
Mr. Foulke. What we do is we have the process--you have to
look at the process----
Mr. Bishop of New York. Yes or no? Will you?
Mr. Foulke. I have to explain the process here. It is right
now before OMB. Once they review, provide that review then we
have to put the proposed rule in the Federal Register and
provide comment period, which will be 60 days. Then under the
act, we are--the OSHA act provides that any person can request
a hearing on that standard. There more than likely will be a
hearing on this standard.
Mr. Bishop of New York. I think what I'm hearing is a no,
that you will not----
Mr. Foulke. We will have the proposed rule out some time
probably by September. And then the other process goes through.
So unfortunately the time periods that are allowed under the
law are going to carry it into 2009.
Mr. Bishop of New York. I only have time for one more
question.
Mr. LiMandri, if the draft regulations agreed to by the
stakeholders with respect to crane safety had the force of law,
in your opinion, would those regulations have prevented the two
accidents that took place in New York City?
Mr. LiMandri. The two different accidents that occurred in
New York City are both under investigation, and I don't want to
compromise that investigation. I will tell you that we are here
today because these CDAC regulations will standardize across
the Nation--cranes are transitory. They go across State lines.
If there are not Federal regulations that make the operators,
the people who maintain those cranes, and how those cranes are
worked on when they go in and out of a jurisdiction, and there
is no standard baseline, I do think that it will have a large
effect across the Nation on the standard. So, we are here today
to support that. There are some very specific pieces in this
that would raise the level of standard. That can make a
difference.
Mr. Bishop of New York. Thank you. I yield back. Thank you,
Mr. Chairman.
Chairman Miller. Thank you.
Ms. Woolsey.
Ms. Woolsey. Thank you, Mr. Chairman. Actually if I was Mr.
Cole and I was listening on the responses as to why everything
took so long, blah-blah-blah-blah, I would be asking the
question, why wasn't that all in place before my brother died?
Four years later, I mean, we take too long. So, Mr. Ayers, you
said it, I mean you actually said in so many words that
accidents have become big news in this country of ours, the
mine accidents and the vigils, and Las Vegas and New York, the
news, it becomes reality shows actually.
But I'm telling you, there is nobody in the United States
of America that does not want workers safe and healthy. So my
question to you, Mr. Foulke, is what is it going to take? What
is missing in this picture? Why can't we do it right? You have
the entire country behind you. What is it going to take from
the Federal, the representatives, what is it going to take from
the administration? Because right now what we have is not the
will to cut in half at least rulemaking. So why would it take 4
years? You have your reasons and your rationale. If there is a
will, we can do it quicker but you must need the support to do
it. Why are we competing with enforcement, competes with
prevention, competes with protection? We need all of it. We
don't need competing priorities. We need to keep our workers
safe and healthy. What will it take?
Mr. Foulke. What I would say is once again we are focusing
on moving the standards as quickly as we can.
Ms. Woolsey. We heard that. It is not very quick. Why does
it take so long? And I don't want because it takes all these
people and this and 120 pages. Then put 120 more people on it.
What is it going to take?
Mr. Foulke. And we have our full reg agenda and we have
people on every one of our reg agendas pushing to move this
forward.
With respect to the cranes and derricks, once--as in any of
the standards, there are certain things that the Congress has
mandated that we go through, the SBREFA panel. The SBREFA
review is required under the SBREFA act. The courts have
indicated, have required us to put in certain things. They
require us to do feasibility and risk assessments.
Ms. Woolsey. Do they require it to take 4 years?
Mr. Foulke. Well, the time period to do those things, it is
not that we----
Ms. Woolsey. Okay, I can't--you are going to repeat what
you already said, and I don't want you to have to do that.
Now I have another question. I am from California. Cal OSHA
has always been stronger than fed OSHA. That is why it was my
understanding that Cal OSHA stood. So now we have waivers for
quite a few States. And isn't that based on the State being
independent of OSHA if their regs and their programs are
stronger, better in so many words? If it turns out they are
not, or at least they don't--aren't equal to OSHA, how does--
who and how is that waiver taken away from them? That right?
Mr. Foulke. The standard that you are talking about is
under the act, the act originally started out with a national
safety and health program nationwide. But the provisions of the
act allowed for States to take over safety and health programs.
The standard of care or requirements for the State is that they
be at least as effective as the Federal OSHA and that is what
you are saying, the Cal OSHA was stronger, has changed some of
their standards to be more rigorous. But that is also in
structure and performance. And so we are responsible to and we
audit the States. They are supposed to have a strategic plan.
We are supposed to make sure that they are making good on their
goals and reducing injuries and fatalities. So we do audit
them.
And then as I mentioned earlier there is a--we do
quarterly--we conduct special what they call CSPA.
Ms. Woolsey. Have we ever taken back the responsibility of
the Federal Government from a State?
Mr. Foulke. No, we have not. It was only one time when Cal
OSHA was going to relinquish its plan back to Federal OSHA.
They did it for a small period of time. But we have not. But we
have done studies on State plans and we also have what they
call CSPA complaints where a complaint can be filed by a State
concerning a State plan and we investigate that complaint.
Ms. Woolsey. Mr. Chairman, may I ask one little question of
Mr. Cole? One little question, and he will give me one little
answer.
Mr. Cole, did your brother-in-law ever complain about
safety conditions on the site? And was there a employee safety
committee or a process for complaining?
Mr. Cole. My brother-in-law, I saw him probably 3 days
prior to, maybe a week before his death, and he went to work at
City Center for his overtime. He was working on another job.
And after he got there, he did not talk to me about the job, so
I can't tell you that. I wish I could, but I can't.
Ms. Woolsey. Thank you very much. We are over time. Thank
you, Mr. Chairman.
Chairman Miller. Mr. Holt.
Mr. Holt. Thank you very much. Thank you, Mr. Chairman. Mr.
Foulke, I would like to get on the record answers to several
questions. First, will we see silica standards this year? Will
we see confined space standards this year? And will we see
lockout-tagout standards this year?
Mr. Foulke. We are working on the silica standard. We are
in the process of doing the next step in the process--doing the
peer review of the data. And so we are moving forward on that.
With respect to the confined spaces, I am assuming you are
talking about confined spaces in construction. The confined
spaces in construction standard we issued a proposed rule. We
did receive comments on the proposed rule. And we also received
a request for a hearing. And I believe the hearing on the
confined space construction is July 22 of this year. So we will
be moving forward with that.
And the lockout-tagout, we have a lockout-tagout standard.
We are working on a maritime. We are having regulatory
hearings. We are going to have hearings on the maritime
lockout-tagout.
Mr. Holt. The construction lockout-tagout is in effect?
Mr. Foulke. We are using the lockout-tagout for
construction used in the general industry standard.
Mr. Holt. So the answer to my three questions, will we see
those this year?
Mr. Foulke. You will--for silica--we are not doing a
standard on lockout-tagout for construction. We are just doing
one on maritime. We are having a hearing on that. And once the
hearing is completed we will review that.
On the silica, the peer review, and from peer review the
next step after that would be a proposed rule. I don't know if
that will be completed by the end of the year, just depends on
what the peer review determines.
And on the hearing on confined spaces in construction that
will be--like I say, is on the 22nd of July. And once we get
the review from that, then we will go forward, make whatever
changes, depends if we have no comments at the--from the
hearing arguably the potential to have a final rule this year,
there is the potential for that. It just depends what comes out
at the hearing.
Mr. Holt. I understand it is customary at the end of an
administration to start shedding responsibility. I would just
urge you to, you and everyone in OSHA, to show a greater sense
of urgency. I realize some of the work will not be completed in
this administration. But I sure hope that you can have as much
completed as possible and have everything else teed up for the
next administration to implement because we are seeing too
much, too many injuries, too many deaths. And despite your rosy
statistics, it just doesn't match with the experience I hear
from people in the workforce and certainly what we see
reported.
So with that, Mr. Chairman, I say thank you for setting
this up.
Chairman Miller. Thank you.
Mr. Sarbanes.
Mr. Sarbanes. Thank you, Mr. Chairman. And Mr. Foulke, you
said there are 1.6 million employees that have been trained
through the OSHA Ed program? Is that right?
Mr. Foulke. Usually we classify it as 1.6 participants in
the 10 and 30-hour courses.
Mr. Sarbanes. So they are getting at the minimum 10 hours
training. Do you think it ought to be mandatory that everyone
who is working in the industry should----
Mr. Foulke. We already have a mandatory requirement with
respect to training. It is with respect to specifically going
to 10-hour, 30-hour courses. I think we would have to look and
see how--how that would impact on, there is a lot of things. To
go mandatory on that we would have to go through once again how
that would impact on small businesses. How--what is the--how
would that--how much it would cost to this particularly the
small business and how it would impact them, how it would be--
we would also have to do paperwork analysis on that. So I would
have to look at that before I say should we go to a 10 or 30-
hour mandatory OSHA course.
Mr. Sarbanes. Leaving the cost and impact and so forth
aside, just looking at what a worker comes away with training,
what is the argument against every worker having that safety
training of at least 10 hours?
Mr. Foulke. I think yeah, I know in my private, in my
experience in private practice and dealing with clients that
were in the construction industry and even in general industry.
But they are doing a lot of training. We do not know exactly
the scope of the training being done by the employers in-house
through consultants or whatever. They may be providing all
this. They may have a much more broad inspection or training
program than is required under the 10-hour or even the 30-hour
course because I know some of my clients did have that type of
thing.
So to say they are not getting the training, I can't say
that all the--that we are deficient necessarily in training.
Mr. Sarbanes. But if they weren't getting the training,
would that be a bad thing?
Mr. Foulke. Well, first of all, they are responsible for
providing training. There is a mandatory requirement for
training in the construction. So they would be in violation of
the standard. But secondly, like I say, I believe personally
that, you know, keeping employees safe is a moral
responsibility for employers.
Mr. Sarbanes. So you think they should be getting the
training, that every employee should be getting----
Mr. Foulke. I think they have to. They are required to
provide training. So that is the law. So they should be
providing training.
Mr. Sarbanes. My impression is that there is a certain
dimension of viewing this workforce as kind of a disposable
workforce, which is the thing that I think is troubling a lot
of people here.
Before I run out of time, though, I just would want to ask
Mr. Ayers, in your testimony you talk about this recommendation
of actually creating a dedicated construction OSHA. I just
wondered if you could talk a little bit more about why you see
the need for that.
Mr. Foulke. Yes, sir. We think that it is very important to
address all the injuries and fatalities that we are seeing now
because it is similar to the Mine Safety and Health
Administration. I meant the deaths of miners, it is a terrible
thing, but in comparison to the death of construction workers,
it is not even close. So what they have done for the miners has
proven to be effective. They have regular inspections of mines.
You know, quite frankly we have roughly 800,000 construction
projects, and under the current level of inspections going on,
it would take 17 years to inspect all those projects. Now
granted, they start and they stop and they move around. But a
separate agency for construction is badly needed as much as a
mandatory 10-hour OSHA certification.
Mr. Sarbanes. And before the time runs out, given that
there is limited resources always, I guess, what are the kinds
of things that would flag dangerous work sites where you could
say, well, we better send somebody out there. I may be looking
for counterintuitive things. Like we talked last week, we had a
hearing on the poultry industry and, well, I guess they were
talking about the steel in one instance, but where there are
instances where the reported injury is zero or one for location
where that is just not plausible. So you say, well, those are
the places you ought to be sending some inspectors out because
something is going on. Is there similar kinds of triggers or
flags you can point to that would help allocate resources or
not really?
Mr. Ayers. Not really. What frustrates us the most is
typically the larger ones are the ones subject to inspection
and typically the larger jobs are the safest jobs. Now City
Center is a exception, but you are looking at a $9 billion,
largest commercial project in America. They have stacked
workers, working around the clock. There are a lot of problems,
why there are problems there.
But again to answer your question, I think the focus should
be not so much on the large projects but focus on a good
sampling of all projects.
Mr. Sarbanes. Thank you.
Chairman Miller. Ms. Sanchez.
Ms. Sanchez. Thank you. I want to begin my question with
Brother Ayers. I am a fellow IBW member, so welcome to our
panel, and I am keenly interested in some of the insight that
you can lend as a witness on this panel. In your written
testimony, you mentioned that OSHA's statistics undercount
accidents because so many construction site workers are
misclassified as independent contractors. Can you explain why
this is so important that they are missing from the statistics?
Mr. Ayers. Yes. Independent contractors are an extremely
big problem in the industry. And the statistics are much worse
than what you have seen in my written testimony or probably the
statistics you have seen from everyone here because an
independent contractor is not required to report to OSHA. So if
there is an injury, an illness, a fatality, it is not reported
with OSHA. Therefore, BLS doesn't capture it. So the statistics
you are looking at----
Ms. Sanchez. You think they are underreported?
Mr. Ayers. No doubt about it.
Ms. Sanchez. Grossly underreported?
Mr. Ayers. Absolutely.
Ms. Sanchez. In your opinion, do you believe union job
sites are safer than nonunion sites and, if so, can you explain
why that is?
Mr. Ayers. You are going to make me show my bias obviously.
Ms. Sanchez. Just the facts. Just the facts.
Mr. Ayers. I believe personally that the union sites are
safer sites, and I only say that from the aspect that we make a
point to push and offer training. Our workers have a place to
go to get training. It is not to say that every nonunion worker
doesn't have a place to go to get training, but more often than
not they do. And you need to keep in mind that 80 percent of
all construction employers are less than 10 employees so----
Ms. Sanchez. So the vast majority probably don't have as
easy a time accessing training?
Mr. Ayers. Right. Again, that is why we think it is very
important that an emergency 10-hour standard be adopted.
Ms. Sanchez. Thank you.
Mr. Foulke, you described OSHA, and I am quoting here,
unprecedented levels of Hispanic outreach, yet a recent
government report revealed an unprecedented level of Hispanic
work-related fatalities especially in construction. The report
found that in 2006 the fatality rate was 25 percent higher in
Hispanics compared to all other workers and foreign born
Hispanic workers had a 70 percent higher rate of work-related
injury deaths compared to native born Hispanic workers. From
1992 to 2006, deaths from falls among Hispanic workers
increased by approximately 370 percent.
So what is it that you are doing wrong? Because you are
talking about outreach, training and education, and some
distribution of Spanish language materials. But you are not
mentioning enforcement. And clearly there is something that is
failing if you have statistics like this going up for Hispanic
workers.
Do you have any ideas of how you can improve cutting the
fatality rate for Hispanic construction workers?
Mr. Foulke. Let me--first of all, I misspoke about an
earlier question about the general industry. Lockout does not
apply to construction. We do have a small construction lockout-
tagout.
Now to get to your question on Hispanic workers, it is
clearly a concern of ours about the number of fatalities in the
Hispanic community, and we have been working very diligently
and doing a lot of outreach. And I understand what you are
saying. But we also, you have to look at our enforcement. We
have focused our enforcement. We don't target and say we are
looking for enforcement for Hispanics. The enforcement is
across the board.
Ms. Sanchez. I understand, but that then leads to the
belief on my part, and I don't think wholly unrational, that
there isn't enough enforcement going on across the board.
Mr. Foulke. Well, the overall fatalities numbers have
reduced.
Ms. Sanchez. But they are going up for Hispanic workers and
that is sort of the largest growing segment of the workforce,
if I am not mistaken.
Mr. Foulke. I think it is the largest expanding segment of
the workforce. And we are focusing on trying to get to the
Spanish speaking workers because clearly our efforts on--the
outreach efforts are tied into our enforcement though, too,
because we--last year, 67 percent of all Federal and State--74
percent of--excuse me, over 50 percent, 51 percent of our OSHA
inspections were construction where a lot of the fatalities are
occurring for Hispanic. So we are targeting that area.
One of the areas----
Ms. Sanchez. My recommendation, because I have got a couple
other very brief questions I would like to ask you, is that you
really step it up in that area because it is clearly a glaring
failure in terms of statistics. You are talking about, oh,
injuries are down. Deaths are down. In this particular segment
of the population, it is a very clear, very pressing, urgent
problem, and I urge you to take double time in terms of trying
to address that.
Mr. Foulke. Okay.
Ms. Sanchez. If the chairman would indulge me, can I ask
unanimous consent for 1 additional minute because I have two
quick questions. Thank you, Mr. Hare. I appreciate that.
Mr. Foulke, I want to talk a little bit about the
statistics you list on page 2 of your testimony because you
indicate that since 2001 OSHA has issued 256 significant
enforcement cases, and significant enforcement cases are those
defined as those with penalties over $100,000 in the
construction industry alone.
Ms. Sanchez. In your testimony you write that these
statistics, quote, show that OSHA enforcement is strong, end
quote. So I am interested in knowing how much of the fines in
those 256 cases have been collected, do you know.
Mr. Foulke. That I do not know the exact answer on, the
exact number.
Ms. Sanchez. I would appreciate if you could provide that
later.
Mr. Foulke. I think our collection rate is actually fairly
high.
Ms. Sanchez. I would be interested in getting that
information later. Do you know if any of the fines in those 256
were reduced for any reason?
Mr. Foulke. Those were the----
Ms. Sanchez. Again these are the significant enforcement
cases.
Mr. Foulke. Since most of the cases are settled, a lot of
times the penalties are reduced based on the settlement
process, what is obtained as part of that settlement process.
If we get additional--if we get additional things from the
employer that they are going to add safety people or they are
going to do more training or whatever.
Ms. Sanchez. So the short answer is it is likely that those
fines were reduced?
Mr. Foulke. I think you can say that, yes.
Ms. Sanchez. In how many construction industry fatality
cases did OSHA levy a fine less than $100,000, meaning that
there was a fatality but the case was not considered a, quote-
unquote, significant enforcement case?
Chairman Miller. We are going to submit that for the record
and you are going to submit the answer for the record because
we have a vote on and I want to go to Mr. Hare and Ms. Berkley.
Ms. Sanchez. Thank you. I thank the chairman.
Chairman Miller. Thank you.
Mr. Hare. Mr. Secretary, let me just ask you a yes or no
question. Does your agency have a big enough budget and enough
inspectors to ensure the safety of American construction
workers?
Mr. Foulke. Once again I think I have said in the past--
today is--I think that what we are doing, the enforcement
efforts, the compliance assistance, the training, the outreach,
has demonstrated that we have an effective program because our
injury, illness and fatality rates are going down.
Mr. Hare. Well, that is interesting because we had a
hearing last week and we talked about amputations. One of those
was in terms of workplace safety and accidents happening. And
in the State of Michigan in 1997 there were, I think, 700 or
800 amputations and they were underreported by 64 percent. So
when people are getting hurt on the job and there is
underreporting to the tune of 64 percent of people who have
lost a limb, which I think we would all have to agree here that
is pretty significant, it is awful hard to say, I think, how
much progress is being made when we are not even reporting and
getting the accurate figures, number one, for people who have
been hurt. The way it is now, as I understand it, if OSHA were
to attempt to inspect every workplace in the United States just
one time, it would take you folks 133 years to do that, which
is 49 years longer than it would have taken in 1992.
Mr. Foulke gave rather--and I missed it, but I was reading
his testimony--arguments that his brother-in-law would be alive
today if OSHA had enforced its steel erection standard and had
not weakened it in compliance directive by removing the
requirement for decking 30 feet below the workers. I don't
understand how OSHA standards can provide protections. What
happened here?
Mr. Foulke. I am sorry, I don't understand your question. I
apologize.
Mr. Hare. Mr. Cole in his testimony said that he believed
that his brother-in-law, if I am not mistaken, would be alive
today if OSHA had enforced its steel erection standard. Do you
believe that is the case? Would you agree with Mr. Cole.
Mr. Foulke. I am sorry about that incident. That particular
incident occurred in Nevada OSHA, so I don't have the details
of that specific incident. Under the directive that we have as
to the steel erection standard if an employee, if there is not
decking or netting underneath the employee within two stories
or 30 feet, whichever is less, then to qualify under the
directive you have to have 100 percent fall protection. In
other words, they had to be tied off at all times. So I don't
know the requirement on that.
Mr. Hare. Let me ask you, Mr. Cole. You discussed the steel
erection standard in your testimony on page 1. And apparently
the compliance record eliminated this. I am interested in your
insights about this as an ironworker.
Mr. Cole. Could you repeat the question one more time?
Mr. Hare. Well, you discussed the steel erection standard
in your testimony on page 1 and apparently the compliance
directive eliminated the safety provisions. And so as an
ironworker I am interested in your insights about this.
Mr. Cole. Subpart (r) on the final standards rule said that
every other floor or 30-foot, whichever is closest, would be
decked. The directive--I think it was 23, 24 and 25--eliminated
that, which made it okay for a contractor to say I don't have
to deck it, we can just make sure everybody is tied off. The
problem with Rusty's death and a lot of deaths that happen, the
law is a run-around because somewhere in erection process there
has to be a working floor. A working floor is a floor that is
planked solid, doesn't have a hole more than three inches and
the ironworkers move from that floor to continue the building
up. And it gives a place for all the other crafts to work
underneath, that an accident can't happen if something goes
wrong. It can't fall through that floor and hurt somebody that
is underneath it. And Subpart (r) was fought for 10 years, 12
years before it became a final rule. And it has been taught by
Local 433 and the international in the State of Nevada where I
am from. I taught it myself. And I was surprised and amazed
that the Federal Government would come out with a directive
that would take safety away as when they were the champions of
putting safety in with the help of contractors and the unions
to make a safe working spot for the man going to the job and
his wife knows that he don't have to worry about not coming
home.
Mr. Hare. So you put it in and the Feds took it out?
Mr. Cole. They took it out. It was there.
Mr. Hare. Thank you, Mr. Chairman.
Chairman Miller. Congresswoman Berkley.
Ms. Berkley. Thank you, Chairman Miller, for inviting me to
discuss this important issue. I want to particularly thank and
acknowledge Mr. Cole for coming to share your story and your
experiences. Needless to say, you have my deepest sympathy for
the loss of your brother-in-law, Rusty Billingsley.
My district of Las Vegas has seen unprecedented growth in a
construction boom in recent years and there are currently
40,000 new hotel rooms under construction in Las Vegas. While
this construction is very important to the local economy, it is
also very important more so to ensure the safety of the workers
that are building our city for the future. Unfortunately, my
hometown of Las Vegas has seen a high number of construction-
related deaths, and we are here to make sure that everything is
being done to protect our construction workers.
Make no mistake that the construction workers on-site in
Las Vegas are the highest quality building trades unionists in
the country. They have the expertise, the quality of their work
is unsurpassed, and they have experience on the job of many
years and many construction sites. They are second to none. I
am hopeful that the purpose of this hearing and through this
hearing we will be able to shine a spotlight on this most
important issue so that those who are on the job and at risk
can have the safest possible work site conditions available.
I have a couple of questions. And Mr. Cole, I want to be as
sensitive as possible, but I would like to get short answers if
you could possibly, just so we have this on the record for
absolute sure.
Do you believe the OSHA compliance directive on steel
erection standards provides equivalent protection to
ironworkers during the steel erection process? Is that a yes or
a no?
Mr. Cole. Subpart (r) does give protection in many ways.
The directive does not.
Ms. Berkley. The directive does not. Thank you.
Do you believe, and I know this is a difficult question to
answer, that your brother-in-law might be alive today if OSHA
had enforced the current steel erection standard and not issued
the compliance directive?
Mr. Cole. Ms. Berkley, I know for a fact of ironworkers
that is alive on a 30-foot fall. I don't know one on a 60-foot
fall.
Ms. Berkley. How did you feel, you and your wife feel when
you found out that OSHA had completely dropped the penalties
for your brother-in-law's death?
Mr. Cole. We were devastated.
Ms. Berkley. Mr. Foulke, I know that you visited Las Vegas
a couple of weeks ago. According to Nevada OSHA, they have
formally denounced items contained in the Federal OSHA
compliance directive, and after a thorough review Nevada OSHA
officials concluded that certain OSHA compliance directives do
not provide equivalent protection.
Now, when you were in Las Vegas I was informed that you
have refused to rescind certain Federal OSHA compliance
directives but agreed that you would consider suspending them
until further notice. Have you in fact done that?
Mr. Foulke. No, I am going to clarify that. What I said is
that I would be--I received--first of all, I met with Nevada
OSHA and talked to them about the current situation. Then I
made it a point to meet with all of the----
Ms. Berkley. I know who you met with.
Mr. Foulke.--Employers and then I met with the unions. As
part of that discussion additional information regarding the
steel erection standard and the issue regarding fall
protection, the 100 percent fall protection issue, was brought
to my attention. And I advised them that I would begin to
review the situation and determine what, if anything, would be
done.
Ms. Berkley. And have you done that and what is your
conclusion?
Mr. Foulke. We are still reviewing the information.
Ms. Berkley. And how long is it going to take you to review
this? I don't want to turn on my television in Las Vegas and
hear that another worker at one of these sites, construction
sites has fallen to their death. So there is a bit of urgency
here. So when do you plan to do this?
Mr. Foulke. I understand, Congresswoman, but you need to
understand the directive requires 100 percent fall protection
if there is no decking or netting, so that if they fall, their
lanyards should stop them from falling. There should be no
falls. The directive actually provides more protection to a
certain degree.
Ms. Berkley. According to Nevada OSHA and everybody else,
that is an accurate statement. The reality is that if we had
left the current steel erection standards in place and not
issued the compliance directive Mr. Billingsley and others
might be alive today.
Mr. Foulke. I don't know the answer to that, but I also do
not know the answer to the use of 100 percent fall protection
when there is----
Ms. Berkley. So what are you going to do?
Mr. Foulke. There may have been employees that are alive
today because of the 100 percent fall protection. But because
we prevented them from being killed or injured we don't know
that.
Ms. Berkley. What I would like to do, I am going to submit
this question to you and I would appreciate if you responded.
What more can you do, what more resources are needed to help
prevent additional construction tragedies in Las Vegas. I would
appreciate a comprehensive answer so that we can implement
these things and save people's lives.
Thank you very much.
Mr. Foulke. Let me make one point that we have provided
OSHA Federal inspectors to the Center City site that are
assisting the Nevada OSHA inspectors, so we are already
providing assistance at the site.
Ms. Berkley. Thank you.
Chairman Miller. Thank you. Mr. Cole, I think you wanted to
comment on that. I will stay here. I know you guys will run for
a vote. But you wanted to comment on that question?
Mr. Cole. I just want her because she is from our State, to
make her aware that the fall protection and the tie-off are two
certain things. And two ironworkers in Las Vegas were tied off
and they are both dead. It was over 30 feet.
Ms. Berkley. Thank you, Mr. Cole, for clearing that up.
Thank you, Chairman Miller.
Chairman Miller. Thank you very much.
Mr. LiMandri, you have the authority under your public
health code, if I am correct, to shut a job down, is that
correct?
Mr. LiMandri. That is correct.
Chairman Miller. How often due to safety, health and safety
has that been invoked in the city?
Mr. LiMandri. It has actually increased. In 2002, we did
approximately 2,000 stop work orders. Just last year we have
done approximately 9,900 and it is on the rise.
Chairman Miller. 9,900?
Mr. LiMandri. 9,900, yes.
Chairman Miller. I assume these are all across all the size
jobs.
Mr. LiMandri. Yes, you can use it on any size job. It does
not matter what actual work is occurring. What we want to do is
we want to halt the unsafe practice, require the contractor to
come in, tell us, or the engineer of record, tell us what they
are going to do differently and then we allow them to go back
to work.
Chairman Miller. What triggers this, an inspection in the
finding of a violation, the reporting of a violation and a
confirmation of that violation by the city?
Mr. LiMandri. The city does an inspection based on--it
could be based on an accident or it could be based on an
inspection. We write a violation, the stop order work
violation. It requires them to remedy the situation. That might
mean remedial work prior to going back to work or a listed
practice of how they are going to move forward because each
construction site is different and they have particular means
and methods that might have to be addressed.
Chairman Miller. But not every violation, or let me ask
you, does every violation order, I guess, or citation result in
a stop work?
Mr. LiMandri. We issue thousands of violations a year. Not
every violation requires a stop-work, that is correct.
Chairman Miller. And how is this received in the employer
community, the contractor community, how does this work?
Mr. LiMandri. Well, I will tell you that the best way to
get someone's attention is to stop the work, getting them to
identify before they go back to work a new plan. We get major
compliance. We also----
Chairman Miller. Get major complaints.
Mr. LiMandri. I am sorry. We get additional compliance.
They go above and beyond the code. We may say that whatever the
practice is today we don't agree with, we want you to do more.
There might be management changes, there might be a protocol
change, we might require them to change personnel, whatever
that is.
Chairman Miller. What is New York's situation with the
steel erection standard that we have been discussing here
today, whether or not you have to have flooring, netting and
tie-off, or if you have 100 percent tie-off essentially you
don't need to do the others? What do you do in New York in
high-rise construction?
Mr. LiMandri. Right now today I cannot comment on that at
this time, but certainly we would like to go back and talk to
our local officials based on what they are doing locally with
our director. And I would turn that back over to Ed Foulke, if
I may.
Chairman Miller. Yeah, but wait a minute. Do you have a
standard or don't have a standard?
Mr. LiMandri. The standard that they follow is the standard
that is put out by Federal OSHA.
Chairman Miller. Okay. So you have not done something under
your health and safety codes to change that?
Mr. LiMandri. We don't have----
Chairman Miller. You are living with that directive?
Mr. LiMandri. Yes. We basically live based on Federal OSHA.
There is no standard at the State level for OSHA. We do not
have a New York State OSHA plan.
Chairman Miller. Mr. Foulke, how many States have complied
with that directive? I believe that Nevada just went the other
way, is that correct, in the last few weeks where they now have
flooring and/or netting and tie-off?
Mr. Foulke. That is correct.
Chairman Miller. And California----
Mr. Foulke. California was one that did not.
Chairman Miller. Did not. So in California we still have
the old standard, essentially flooring, netting or----
Mr. Foulke. The standard is still in place across the
country. It is not that the standard is not there. The
directive finds that if you do 100 percent fall protection then
it would be a de minimis site.
Chairman Miller. You mentioned maybe in my first round of
questioning that that standard was very contentious and it is
making the question of whether you are going to require
flooring and netting plus tie-off and that went back and forth
and the standard came out with tie-off and flooring and
netting, correct?
Mr. Foulke. As I understand it, there are two exceptions
that dealt with--decking was one of the exceptions, netting and
decking, and then there was one for shear studs. But going back
to just the netting and decking, that was, as I understand, in
the proposed rule. Then there was a draft final rule that was
circulated among the stakeholders which had 100 percent fall
protection without the two exceptions. And then concern was
raised about that, the two exceptions for decking and netting,
and then the shear studs was put back in the final rule. And
then----
Chairman Miller. So the final rule said?
Mr. Foulke. Says, still does say. It has not been changed.
Chairman Miller. Still does say, I got you.
Mr. Foulke. The standard still says that if you are at 15
feet up to 30 feet, you do not have to have any fall protection
as long as you have either a decking or netting in place.
Chairman Miller. Now, is it correct, it has been suggested
that since the directive is put out there that fall fatalities
have gone up?
Mr. Foulke. I don't have that data, to tell you the truth.
I can get back with you on it.
Chairman Miller. Can you do that?
Mr. Foulke. The problem is we don't know how many people
have not.
Chairman Miller. I understand that. That is true. Without
the standard if people survive, they survive. That is not the
test, how many people we don't know about. The test is how many
people we know that have been killed.
Mr. Foulke. You mean without the fall protection.
Chairman Miller. Right.
Mr. Foulke. Well, if they are using 100 percent fall
protection there should be no fatality.
Chairman Miller. Again you may use 100 percent fall
protection, you may tie off on something that turns out to be
faulty.
Mr. Foulke. Which I think has happened.
Chairman Miller. I like the idea of 100 percent fall
protection, except there aren't that many things in life that
are 100 percent. And tieing off, it doesn't have to be your
arrangement, it can be the safety line arrangement or whatever
else you tie off to at that point.
I want to go back to what I talked to you about earlier in
light of the New York experience. We had this series of
accidents take place in Las Vegas. We had citations, I guess,
if I am using the right word, citation, violations were
recognized and fines were imposed. And then a second round of
meetings was held between Nevada OSHA and contractors and in
some cases the fines were abolished, in some cases they were
substantially reduced. Since the reports in the newspaper they
have held for a moment here.
Is that a practice under national OSHA where you don't have
State plans?
Mr. Foulke. On penalty reductions as a result of
settlements?
Chairman Miller. Is that how it is handled, there will be a
second meeting between the employer, the contractor and OSHA?
Mr. Foulke. Yes. Under our field inspection reference
manual we have a--what they have is once the citation has been
issued the employer has 15 days in which to contest the
citation. During that time period there is a provision that
allows for informal conference where the employer can come in
and try to resolve the citation and enter into an informal
settlement.
Chairman Miller. Does that include the union if it is a
union site or the worker or the worker's family?
Mr. Foulke. Not necessarily, no.
Chairman Miller. So how would they--what would their remedy
be if the fine was abolished? What would the worker's or the
union's rights be if that was done as a result of the informal?
Mr. Foulke. Under the act once there has been a contest the
unions have the ability to contest the abatement date. And that
is----
Chairman Miller. Contest the----
Mr. Foulke. Abatement date of the violation, how long the
abatement date. That is the----
Chairman Miller. To fix the violation?
Mr. Foulke. Correct.
Chairman Miller. They cannot contest the fine being reduced
or eliminated?
Mr. Foulke. Not under the act.
Chairman Miller. How does that strike you?
Mr. Foulke. I just follow the law.
Chairman Miller. Well, you have been a ministry in the law
now for a period of time here. I mean I don't get how you can
have an injured worker or a worker who has died, then you can
have an informal process in which the worker or the worker's
family or the union, and even the other workers on the site are
not included, that that passes a smell test in this country.
Mr. Foulke. Well, we do have a procedure to keep the--
during the inspection process we do have a requirement for the
surviving family members to be informed about how the
inspection----
Chairman Miller. But they have no rights in this hearing?
No, I understand that.
Mr. Foulke. No.
Chairman Miller. But here you are making a determination in
a--you know, again I don't know the evidence is hard, but in
Mr. Cole's brother-in-law's case there was a substantial fine
imposed, there was some question about whether or not it was
faulty equipment or whether he wasn't tied off. Again I don't
know that. But then in an informal hearing the fine went away
and that was it. I don't understand how we can continue that
process without having either the worker representative
organization in the case of the union site and/or the family,
somebody to be able to say wait a minute, you guys, you are
making a secret handshake here without having to go to court.
The company didn't have to go to court to make the fine go
away. But if I want to have the fine stay in place I guess I
would have to go to court later.
Mr. Foulke. Right. Well, in my experience when I was in
private practice involved in informal conferences a lot of
times the unions were invited to those things, to the informal
conference. But under the act they are limited as to what they
are able to contest, and that is limited to the time of
abatement, the date.
Chairman Miller. And that is how the law works?
Mr. Foulke. And OSHA does keep the families informed but
they do not have----
Chairman Miller. Mr. Kallmeyer, have you been involved in
these kinds of conferences? I don't know if you have had these
kinds of violations or citations with Denier Electric.
Mr. Kallmeyer. Yes, sir, I have.
Chairman Miller. What is your sense of how this works?
Mr. Kallmeyer. I personally have been involved in one. And
there was a citation issued for--it was listed as a bare copper
conductor on a job site. It was an electrical violation. And
the compliance officer was in error. It was a ground wire that
was supposed to be bare. And we presented evidence at the
hearing and the OSHA regional director brought in an electrical
expert and agreed with our testimony and it was vacated
basically.
Chairman Miller. I don't know if that was a union work
site, but anybody else raise questions about whether or not
that should be done or not?
Mr. Kallmeyer. The OSHA represented the complaint, the OSHA
compliance, or the OSHA regional director represented the
complaint and provided an electrical expert to--who I believe
was an OSHA employee also provided testimony as to the facts
there.
Chairman Miller. One of my concerns with this is that--I
mean, we talk about fines with respect to worker safety and
24,000 citations for violations and fines levied and $33
million. And again, as I said earlier, I don't know what that
tells me. We will have that further discussion with the people
at OSHA what that is really suggesting to us. And the
discussion about the trend line coming down overall for
accidents, and yet construction accidents is kind of uneven
about that. And you have, as I said, four people a day dying on
construction sites.
But when I see the same process being followed--and again
this is Nevada OSHA, I am sorry they are not here at the table
at the moment. But you have a repeat offender, you have Perini,
Perini, Perini, Perini, and these fines keep going away. I
don't get it. I mean I don't know that any of you can comment
on that. But there is something wrong in that process. I
recognize they are a worldwide company, they are highly
respected and all the rest of that, but something is terribly
wrong in this process, especially if those fines are going away
after essentially a one-sided discussion. I don't say it is not
on the level, but it doesn't allow for an intervener on behalf
of the victim of that incident and/or the family or the
representatives, the union in the case of a union work site.
That just doesn't seem to make sense to me. And that is a
matter of real concern.
You look at fines. And in the case of Mr. Billingsley, was
it, that died in the fall, Mr. Cole's brother-in-law, it was a
$13,000 fine. We are talking about, I don't know, one part of
this job was $3.6 billion and somebody said it was $9 billion
overall. You do start to get the sense that just pay the fine
and let us keep moving here, we are working 24-7. And that is a
fairly disturbing aspect.
I happened to be in Las Vegas for a speech a couple of
weeks ago and I was--I still have images of it 25 years ago,
but I was quite stunned at the size of this project that is
going on. And that is a tough project, with all due respect, to
put a stop work order on with that kind of--you know, it is one
thing when interest rates were low, it is another thing when
that kind of construction money is very dear now in this
country. And I just worry that these fines really do not
provide, especially when they are waived just consistently, and
these fatalities, forget the other fines, that they are
sufficient to ensure a safe workplace or to change a behavior.
Mr. Foulke. Well, Mr. Chairman, I would just say one thing
to one of your points where we have companies that do come back
and continue to have fines. We have our enhanced enforcement
program where we have--where when we find employers that are
not following or not meeting their obligations under the act,
are not following the standards and we have--where we see a
repeat type of situation, then we have this program which
allows us to go not only to that site but also to all their
sites and inspect them on that. And also it spells out the
amount, the reductions and stuff like that is eliminated from
the penalty.
So we have a very forceful program to deal with those
employers that don't seem to be--that have continual problems,
that don't seem to get their responsibility under the act.
Chairman Miller. Do the State plans have that same
provision? Does Nevada have an enhanced enforcement? Are they
required to? The question is, are they required to?
Mr. Foulke. I don't know if they have adopted that enhanced
enforcement program.
Chairman Miller. Because their plan has to be equal to or
greater than, right?
Mr. Foulke. But that is one of our enforcement programs. It
is part of like our national emphasis program, it is like our
local emphasis program. They can have their own State emphasis
programs.
Chairman Miller. So whether a State has it or not, that is
still a program that you carry out?
Mr. Foulke. That we have from a Federal standpoint,
correct.
Chairman Miller. Well, I want to thank you all for your
time. I think that, speaking as chair of this committee, I
think that consideration has to be given to something beyond
these fines. We have been around this before on fines in coal
mining and elsewhere where they become, I hate to say this
because it sounds so callous and it is not fair to a lot of
responsible employers, but it becomes almost a cost of doing
business, and that just can't be acceptable here. I think that
perhaps New York City has a regime that would lead--again we
have to look at the numbers here, but would lead to better
enforcement. It is not a minor step. But I just don't think
that certainly on some of these mega projects that the fines
that we have historically watched, I am not sure that that
leads to the kinds of corrective behavior, the kinds of
modifications and improved safety that we would look for in the
work site. And I mean this project in Nevada looks a little bit
like a test case here in the sense that--the fatalities and
injuries that have taken place and yet they continue and the
number one tool in the arsenal, which is fines, continues to
get waived. I think that raises very, very serious questions
about that State enforcement and about what the Federal
Government under the delegation of authority has the ability to
do under the current law.
Thank you all very much for your testimony. It has been
very helpful to the committee. There will be--14 days will be
available for any member of the committee who wants to submit
additional material for the committee. Some of my colleagues
had questions that they wanted to send in writing. We will
forward those to you and we would appreciate it if we could
have a response to those questions.
Thank you, and with that, the committee stands adjourned.
[Additional submissions from Mr. Miller follow:]
Prepared Statement of Christopher Lee, OSHA Deputy Regional
Administrator, Retired
I appreciate the opportunity to submit this statement to the
Committee on Education and Labor on a critically important issue to
working men and women in the construction trades in the United States--
Ironworkers involved in constructing this nation's commercial
buildings.
As a career OSHA safety and health professional, I devoted 28.5
years to the Agency and its mission. Since 1990, I served as the Deputy
Regional Administrator in San Francisco until June 2008. Following is
my personal statement as an occupational safety and health
professional.
As you know, the Occupational Safety and Health Administration
convened a Steel Erection Negotiated Rulemaking Advisory Committee to
gather input from various stakeholders regarding key safety concerns in
the steel erection industry. After considerable deliberations and many,
many meetings, a consensus was reached.
After the promulgation of this standard, Subpart R--Steel Erection
Standard--the Agency issued a Compliance Directive that in the minds of
many concerned safety and health professionals removed safety
provisions and created unsafe working conditions for Ironworkers.
The standard as written (CFR 1926.754(b)(3), and supported by a
myriad of stakeholders, requires a ``* * * fully planked or decked
floor or nets shall be maintained within two stories or 30 feet,
whichever is less, directly under any erection work being performed.''
The several persuasive arguments in support of this standard include:
Provides containment for falling objects such as tools,
bolts, etc.
Limits fall distance to Ironworkers
Provides a platform for rescue
Has been industry practice and OSHA standard
The SENRAC supported this standard
The preamble to Subpart R supports the standard
OSHA reviewed and approved training manuals prior to
publication
Of critical note is the fact that several OSHA State Programs--such
as the Cal OSHA program and now the Nevada state OSHA program do not
enforce the Compliance Directive, rather the requirements of the
standard itself.
There are concerned parties who believe that OSHA's issuance of
Compliance Directives is ``underground rulemaking'' whereby Federal
OSHA attempts to make policy without going through a formal rulemaking
process.
The entire construction industry including project owners,
controlling contractors, subcontractors, and other parties rely on OSHA
for consistent interpretation and enforcement of all safety standards.
It is unfortunate that many affected parties in the construction
industry consider these Compliance Directives to be a source of
regulatory confusion, costly jobsite delays, and unnecessary
litigation.
OSHA Assistant Secretary Edwin Foulke has been quoted as saying
``Even one injury or fatality on the job is one too many''.
I have attended many management meetings since Mr. Foulke assumed
his responsibilities in approximately April 2006. He has repeatedly
stated that OSHA has a noble mission--to ensure that the working men
and women in America return home whole and healthy at the end of their
working day.
Mr. Foulke, in concert with is key advisors, and the career
leadership of the Regions and the Directorates, spent two years
identifying a mission statement for the Agency and to identify its
three core values. The core values are respect, integrity, and
commitment.
In my opinion, Mr. Foulke, on behalf of the Agency, ought to
respect the safety and health concerns of working men and women on
construction worksites as noted above; should have the integrity to
enforce the fall protection standard as it was promulgated and endorsed
by numerous stakeholders; and, recommit to the basic ideals of the OSHA
Act as it relates to construction workers in these environments.
There seems to be a disconnect between Mr. Foulke's statements and
his actions. He can change this situation by executive direction--he
need not convene any committees, nor submit notices to the Federal
Register. He, as I understand the situation, can simply rescind or
suspend the Compliance Directive. I urge, most respectfully, that at a
minimum, he suspend the Directive.
Mr. Foulke has a unique opportunity to ensure that Ironworkers
involved in the construction of this country's high-rise buildings, and
other trade workers affected by work above, have a safer workplace from
which they
can return to their homes at the end of the day--whole and healthy.
That is, and has been, his stated goal from the start of his tenure.
I urge you, Mr. Chairman, and the members of the Committee, to
strongly advocate to Mr. Foulke that he ``do what's right'' and protect
these workers.
Thank you for your time and attention.
______
Prepared Statement of Joe Standley, President, District Council of Iron
Workers, California and Vicinity
Good morning Chairman Miller and other distinguished members of the
Subcommittee on Workforce Protections of the House Education and Labor
Committee. I would like to submit the following statement for today's
hearing and request that it be included into the official record of
this proceeding. This statement was provided on June 10, 2008 in Las
Vegas, Nevada that summarizes our opposition to the Occupational Safety
and Health Administration (OSHA) Compliance Directive for Steel
Erection that has effectively removed safety provisions to Ironworkers
and has contributed to recent fatalities in Las Vegas, Nevada.
I am seeking your support today to question Mr. Foulke on OSHA's
current policy to not enforce safety standards for steel erection, and
his policy of supporting Compliance Directives that are contrary to
safety standards contained in the Subpart R--Steel Erection Standard.
It is our hope that that you will instruct Mr. Foulke to enforce the
current safety standards for steel erection, and take immediate action
to rescind all Compliance Directives that are contrary to OSHA
standards that remove safety provisions for Ironworkers.
I am President of the District Council of Iron Workers of the State
of California and Vicinity that includes California, Nevada, Arizona,
and Hawaii. With me today are Doug Williams of Iron Workers local 433,
Hart Keeble of Iron Workers local 416, Danny Thompson of Nevada AFL-
CIO, Steve Ross of the Nevada State Building & Construction Trades
Department, Jim Stanley, former Assistant Secretary of Labor for OSHA,
Greg McClelland of the Labor Management Cooperative Trust, and Steve
Rank of the Ironworker Management Progressive Action Cooperative Trust.
Thank you for your time to be here today.
As President of the District Council of Iron Workers, the safety
and health of our members is my utmost concern. In view of recent
accidents involving Ironworkers in Las Vegas, and recent developments
regarding the Nevada State OSHA Plan and Federal OSHA, I felt that it
was necessary to establish today's press conference to clarify various
issues. It is my hope that today's press conference will illustrate our
long struggle with Federal OSHA to enforce safety standards for steel
erection. Additionally, I want to comment on OSHA's policy of
Compliance Directives that have removed vital safety provisions for
Ironworkers.
First, I would like to address safety and regulatory issues
pertaining to Federal OSHA that have been at the center of controversy
here in Las Vegas. I regret that recent accidents and widespread
confusion regarding safety standards for steel erection have been
linked to a Federal OSHA Compliance Directive for steel erection. The
Compliance Directive issued by Federal OSHA has effectively removed
several safety provisions contained in the OSHA Subpart R--Steel
Erection Standard. We have prepared copies of several documents for
your review that support our claim, that the Compliance Directives that
are contrary to the OSHA Subpart R--Steel Erection Standard, and expose
Ironworkers to significant dangers during the steel erection process.
On several occasions, representatives from our International
Association and contractor associations have met with Mr. Edwin Foulke,
Assistant Secretary of Labor--OSHA, and his staff in good faith to
resolve this issue. OSHA was strongly urged to rescind certain items
contained in their Compliance Directive that removed safety provisions
and created unsafe working conditions for Ironworkers. Despite repeated
warnings to Mr. Foulke from labor and management representatives,
including members of his own staff, Mr. Foulke has refused to rescind
the Compliance Directive.
As President of the District Council of Iron Workers, I have a
responsibility to ensure that all Ironworkers are afforded safe working
conditions set forth by OSHA regulations. I also have a responsibility
to ensure that safety regulations are not compromised by OSHA
Compliance Directives. I have been informed that Mr. Foulke will be in
Las Vegas this week, and has requested to meet with general contractors
and subcontractors regarding the recent fatalities in Las Vegas. We are
outraged with news that Mr. Foulke would come to Las Vegas to
pontificate about fatalities and workplace safety matters, when he has
refused to rescind OSHA Compliance Directives that have been at the
center of controversy in Las Vegas. However, we would welcome Mr.
Foulke's decision to rescind certain Federal OSHA Compliance Directives
during his presentations in Las Vegas this week. Please join us in our
efforts to confront Mr. Foulke regarding his refusal to enforce the
OSHA standards for steel erection, and his continued policy to support
Compliance Directives that remove safety provisions for Ironworkers.
Secondly, I would like to address regulatory issues pertaining to
the Nevada State OSHA Plan. On behalf of the three thousand Ironworkers
working in Nevada, I am extremely pleased that Nevada OSHA has formally
denounced items contained in the Federal OSHA Compliance Directive.
Representatives from the District Council of Iron Workers recently met
with Nevada OSHA officials, to provide documentation that supports our
concern that OSHA's Compliance Directive removes safety provisions to
Ironworkers. Nevada now joins other State OSHA Plan's who have refused
to adopt these Compliance Directives. After thorough review, State Plan
officials have concluded that certain OSHA Compliance Directives do not
provide ``equivalent protection'' as mandated by State Plans. State
Plan Officials often refer to OSHA Compliance Directives as
``underground rulemaking'' when Federal OSHA intends to ``make policy''
without going through a formal rulemaking process. This is a disservice
to the stakeholders in the steel erection industry who rely on OSHA to
provide consistent enforcement and interpretation of safety
regulations.
The District Council of Iron Workers, controlling contractors,
contractor associations, and subcontractors have supported Nevada OSHA
and their decision. We commend Nevada OSHA on their decision to uphold
the OSHA regulations that protect our Ironworkers and denounce OSHA
Compliance Directives that remove crucial safety provisions to our
members.
The working men and women that build America and those of us who
represent them, look to the Occupational Safety and Health
Administration to enforce the safety regulations for our protection.
The entire construction industry including project owners, controlling
contractors, subcontractors, and other parties rely on OSHA, for
consistent interpretation and enforcement of safety standards.
Our International Association and industry stakeholders have
invested a considerable amount of time and resources to raise the
standard for safety performance in the steel erection industry. We were
shocked and disappointed that OSHA would issue Compliance Directives
that removed safety provisions for the steel erection industry that is
considered a ``high hazard industry''. Today, these Compliance
Directives continue to be a source of regulatory confusion, costly
jobsite delays, and unnecessary litigation.
On behalf on 18,000 thousand Union Ironworkers in the California
District Council of Iron Workers, please join us in our efforts to
question Mr. Foulke on OSHA's policy to not enforce safety standards
for steel erection and the misuse of OSHA Compliance Directives. It is
our hope that Mr. Foulke will enforce the current safety standards for
steel erection, and take the appropriate action to rescind all
Compliance Directives that are contrary to the OSHA Steel Erection
Standard, that remove safety provisions for Ironworkers.
Once again, thank you for your time to be here today and your
attention to this matter.
______
[Questions for the record submitted to Mr. Foulke and their
responses follow:]
[via facsimile]
U.S. Congress,
Washington, DC, June 27, 2008.
Hon. Edwin G. Foulke, Jr., Assistant Secretary for OSHA,
Occupational Safety and Health Administration, U.S. Department of
Labor, Constitution Avenue, NW, Washington, DC.
Dear Assistant Secretary Foulke: Thank you for testifying at the
Tuesday, June 24, 2008 Committee on Education and Labor Hearing on ``Is
OSHA Failing to Adequately Enforce Construction Safety Rules?''
Committee Members had additional questions for which they would
like written responses from you for the hearing record.
Congresswoman Woolsey asks the following questions:
1. Mr. Foulke, I was a human resource manager for 20 years and know
from experience that issues of work organization are important to
health and safety. By that I mean how many hours people work, excessive
overtime and what kind of stress they're under to get jobs completed
quickly. We're certainly seeing this in Las Vegas and in New York.
Mr. Foulke, what is OSHA doing to address these work organization
issues?
2. Mr. Foulke, it sounds like your inspectors in New York are doing
great work, given how short staffed they are.
Are they able to do anything aside from investigate
accidents and respond to complaints? Anything actually preventative?
Have you considered bringing in reinforcements from other
regions?
Additionally, please answer the following questions:
1. What was the timeframe for all other OSHA negotiated
rulemakings, from the time that the negotiators agreed to a proposal,
to Notice of Proposed Rulemaking to final issuance of the standard?
2. Your testimony mentions 256 significant enforcement cases since
2001 in construction. Can you tell me how much of the fines in those
256 cases have been collected?
3. Your testimony states that in 2007, there were 24,000 citations
for fall protection hazards, and $33 million in penalties. Can you tell
me:
a. How many inspections for fall protection hazards were conducted
in construction?
b. How many separate construction sites were inspected?
c. How many of these fall protection-related inspections were a
result of:
i. Fatalities
ii. Events involving injuries
iii. Complaints
iv. Referrals
v. General Schedule or targeted inspections
d. What was the median penalty of fall protection citations?
e. How many fall protection citations were there annually, from
2001-2007? What were the average and median penalties in each of those
years?
4. How many construction fatalities resulted in OSHA penalties that
were less than $100,000? How many were more than $100,000? What were
the average and median penalties for fatalities in the construction
sector?
5. What additional resources would be needed by Nevada OSHA to
prevent additional construction tragedies in Las Vegas?
6. How many week-long crane training classes are schedule at the
OSHA Training Institute? What are the dates?
a. Are the upcoming classes filled?
b. How many attendees are
i. federal compliance officers
ii. state plan compliance officers
iii. state consultation program employees
7. About 80 percent of U.S. construction industry employers have 10
employees or fewer, and over 2 million workers in the U.S. construction
industry are misclassified as self-employed or independent contractors.
What is OSHA doing to reach small employers, including home
builders, and what is OSHA doing to ensure that workers are not
misclassified for safety and health purposes?
Please send your written response to the Committee staff by COB on
Tuesday, July 8, 2008--the date on which the hearing record will close.
If you have any questions, please contact the Committee. Once again, we
greatly appreciate your testimony at this hearing.
Sincerely,
George Miller,
Chairman, Committee on Education and Labor.
______
OSHA's Responses to Questions for the Record
Congresswoman Woolsey Question 1: Mr. Foulke, I was a human
resource manager for 20 years and know from experience that issues of
work organization are important to health and safety. By that I mean
how many hours people work, excessive overtime and what kind of stress
they're under to get jobs completed quickly. We're certainly seeing
this in Las Vegas and in New York. Mr. Foulke, what is OSHA doing to
address these work organization issues?
OSHA Response: OSHA appreciates your recognition of these issues,
many of which go beyond the authority of the Occupational Safety and
Health (OSH) Act. For example, the Department of Labor's Wage and Hour
Division administers the federal overtime provisions of the Fair Labor
Standards Act. OSHA inspectors do report possible violations to them.
What OSHA will continue to do is to use all of its tools--vigorous
enforcement, compliance assistance, cooperative programs and
education--to ensure that employers take all necessary actions to
protect employee safety and health and to impress upon them that
compromising on safety and health is not an option.
OSHA uses every opportunity to encourage employers to adopt good
safety and health management systems in their workplaces. Such systems,
which can go beyond regulatory mandates to address the important human
factors you mention, have proven time and again to be a powerful force
in reducing workplace injuries and illnesses.
OSHA has taken action to address specific problems in Las Vegas and
New York City. We are assisting Nevada-OSHA with construction
inspections in Las Vegas. Also, we have deployed a special Task Force
in our Manhattan Area Office, which has 12 additional compliance
officers and an expert on cranes drawn from other OSHA offices, to
increase construction inspections in New York City.
Congresswoman Woolsey Question 2: Mr. Foulke, it sounds like your
inspectors in New York are doing great work, given how short staffed
they are.
a. Are they able to do anything aside from investigate accidents
and respond to complaints? Anything actually preventative?
b. Have you considered bringing in reinforcements from other
regions?
OSHA Response:
a. OSHA's compliance officers in New York City, as elsewhere, are
actively involved not only in responding to complaints, fatalities, and
accidents, but in conducting a large number of ``programmed'' or
targeted inspections in high-hazard workplaces, which constitute about
46 percent of all inspections in New York City. These include OSHA's
nationwide programs such as the Site-Specific Targeting program and the
National
Emphasis Programs for silica, lead, amputations, trenching, and
others. They also include 10 Local Emphasis Programs in the New York
Area, 4 of which specifically address construction hazards, including
falls, electrical, trenching, and struck-by/caught-between hazards.
OSHA is using every available resource and tool--enforcement,
outreach, education and training--to better identify and proactively
eliminate hazards, and to convince employers to do likewise. To raise
awareness of occupational hazards on city job sites, OSHA has been
sending copies of violation citations issued to employers on city
construction sites to the employers' insurance or workers' compensation
carriers, as well as to construction project owners and developers.
Citations involving training violations at union-represented sites will
be sent to the unions representing the employees and to their training
funds.
OSHA also maintains 25 Regional and Area Office Alliances and 19
Strategic Partnerships with employers, trade associations, unions and
other organizations in New York, to work cooperatively to prevent
workplace accidents. The agency is planning to hold outreach meetings
with unions and the construction industry to garner their feedback on
construction safety issues and to elicit their support in reporting
hazards and encouraging compliance with safety standards.
OSHA will continue its ongoing Alliance with the New York City
Department of Buildings, under which the two agencies cross-train
inspectors and managers on each agency's construction safety standards,
regulations, and procedures, with a focus on the most common
construction hazards likely to harm employees. OSHA's Manhattan office
has been participating in a joint task force with the Department of
Buildings to address scaffolds and their related fall hazards and has
conducted both concurrent inspections and inspections based on
referrals from the Department. Already this year, OSHA staff has
conducted dozens of training sessions for construction industry groups,
unions, and even NYC staff on the various construction standards, with
particular emphasis on falls, scaffold, crane, electrical and struck
by/caught between hazards.
b. When an OSHA region requires additional resources or assistance
to address issues such as the recent crane accidents, or a natural
disaster, OSHA identifies assets within the agency that are available
to provide immediate internal assistance. In addition, OSHA has several
safety and health experts that comprise the agency's Health Response
Team and Safety Response Team, as well as several rapid response teams
that respond to biological exposures, structural collapses, and
radiation releases anywhere in the nation.
To address the recent crane and construction fatalities in New York
City, OSHA sent 12 additional compliance officers to New York City to
augment and provide support to the compliance officers already
stationed in the five New York City boroughs. The agency also provided
an expert on cranes from OSHA's Billings, Montana Area Office to assist
the New York regional staff. The additional compliance officers are
focusing their inspection activities on high-rise construction sites,
cranes, and other types of places where fatalities and serious
accidents have occurred over the past six months.
Committee Question 1: What was the timeframe for all other OSHA
negotiated rulemakings, from the time that the negotiators agreed to a
proposal, to Notice of Proposed Rulemaking to final issuance of the
standard?
OSHA Response: OSHA has used negotiated rulemaking for its
rulemakings for ``Fire Protection in Shipyards,'' for
``Methylenedianline (MDA)'' and for Steel Erection.
In the Fire Protection in Shipyards rulemaking, the negotiated
rulemaking committee finished its work and agreed on a draft proposed
rule in February, 2002. The Notice of Proposed Rulemaking (NPRM) was
published on December 11, 2002 (67 FR 76213). The final rule was
published on September 15, 2004 (69 FR 55667).
In the MDA rulemaking, the negotiated rulemaking committee agreed
on a draft proposed rule in May, 1987 (see 57 FR 35633). OSHA issued an
NPRM on May 12, 1989 (see 54 FR 20672). The final rule was issued
August 10, 1992 (see 57 FR 35630).
In the Steel Erection rulemaking, the negotiated rulemaking
committee completed the draft regulatory text for the proposed rule in
December, 1995 (see 66 FR 5197). On August 13, 1998, OSHA issued an
NPRM (see 63 FR 43452; 66 FR 5198). The final rule was issued January
18, 2001 (see 66 FR 5195).
Note that the Crane and Derricks proposed rule regulatory text,
with its accompanying preamble, is considerably longer than those for
the Fire Protection in Shipyards, MDA, and Steel Erection rule makings.
Committee Question 2: Your testimony mentions 256 significant
enforcement cases since 2001 in construction. Can you tell me how much
of the fines in those 256 cases have been collected?
OSHA Response:
SIGNIFICANT CONSTRUCTION CLOSED CASES ONLY
------------------------------------------------------------------------
Fiscal year Penalties remitted
------------------------------------------------------------------------
2001 $2,547,376
2002 $1,159,711
2003 $1,006,041
2004 $1,070,049
2005 $908,786
2006 $611,572
2007 $208,112
Total $7,511,647
------------------------------------------------------------------------
SIGNIFICANT CONSTRUCTION OPEN CASES ONLY\1\
------------------------------------------------------------------------
Fiscal year Penalties remitted
------------------------------------------------------------------------
2001 $15,783
2002 $0
2003 $84,542
2004 $165,186
2005 $340,433
2006 $687,192
2007 $331,747
Total $1,624,883
------------------------------------------------------------------------
\1\ There are a number of reasons that cases appear as ``open'' in
OSHA's database, even though penalties have been remitted. In some
cases, employers may have contested some, but not all, of the items
for which penalties were proposed in a particular case. In others,
OSHA may have agreed to a payment plan, under which the employer has
some period of time to pay the entire penalty. In still other cases,
the employer may have paid the penalty but OSHA has not yet confirmed
that the cited violations have been abated.
Committee Question 3: Your testimony states that in 2007, there
were 24,000 citations for fall protection hazards, and $33 million in
penalties. Can you tell me:
a. How many inspections for fall protection hazards were conducted
in construction?
b. How many separate construction sites were inspected?
c. How many of these fall protection-related inspections were a
result of:
i. Fatalities
ii. Events involving injuries
iii. Complaints
iv. Referrals
v. General Schedule or targeted inspections
d. What was the median penalty of fall protection citations?
e. How many fall protection citations were there annually, from
2001-2007? What were the average and median penalties in each of those
years?
OSHA Response
a. There were 6,476 Federal construction inspections that resulted
in fall protection violation citations.
b. 6,237
c.i 119
c.ii 43
(Employers are required to report work-related fatalities to OSHA.
Employers are also required to report to OSHA multiple inpatient
hospitalizations (hospitalization of three or more employees) resulting
from a work-related incident.) OSHA data show 43 injury related
inspections in 2007.
c.iii 459
c.iv 1,120
c.v. 4,400
3.d see 3.e below
3.e The data below reflect that penalties assessed to small
businesses are generally reduced as a result of a statutorily-mandated
small business penalty reduction program.
FEDERAL FALL PROTECTION DATA
------------------------------------------------------------------------
Fiscal year Citations Median $ Mean $
------------------------------------------------------------------------
2001 4,691 1,500 2,370
2002 5,471 1,500 2,052
2003 6,103 1,500 2,107
2004 6,056 1,500 2,072
2005 6,565 1,500 1,981
2006 6,951 1,500 1,867
2007 7,080 1,500 1,901
------------------------------------------------------------------------
(Note that the median initial penalty in each year from 2001 through
2007 was $1500. This results from the fact that the most commonly
assessed initial penalty for fall citations is $1500, combined with
the fact that the lowest possible penalty ($0) and highest possible
penalty ($70,000) are always the same. Consequently, even though the
total number of fall citations was different in each of these years,
the median penalty remained constant).
Committee Question 4: How many construction fatalities resulted in
OSHA penalties that were less than $100,000? How many were more than
$100,000? What were the average and median penalties for fatalities in
the construction sector?
OSHA Response:
FEDERAL CONSTRUCTION FATALITY CASES
------------------------------------------------------------------------
No. of No. of
fatalities in fatalities in Mean case Median case
Fiscal year cases under cases over penalty penalty
$100k $100k
------------------------------------------------------------------------
2001 357 11 10,849 4,000
2002 383 5 8,396 3,500
2003 355 3 8,557 4,200
2004 409 11 9,790 4,000
2005 389 12 10,521 4,500
2006 364 12 15,315 5,000
2007 372 4 9,086 4,900
------------------------------------------------------------------------
Committee Question 5: What additional resources would be needed by
Nevada OSHA to prevent additional construction tragedies in Las Vegas?
OSHA Response: Both Federal OSHA and Nevada OSHA, operating under
the authority of its OSHA-approved State Plan, are greatly concerned
about the recent construction fatalities in Las Vegas. In FY 2008, OSHA
is providing $1,112,600 in grant funds to the Nevada OSHA program.
Nevada matches this funding and contributes an additional $3,655,497 in
unmatched funds. These funds support 27 safety and 11 health compliance
officers.
No regulatory agency by itself can ensure that additional accidents
will not occur. It is the responsibility of employers to comply with
safety and health standards and to ensure that their workplaces are
free of recognized hazards. In addition, Nevada requires employers with
more than 10 employees to have a written job safety program to guide
their compliance efforts. It is incumbent on both Nevada and Federal
OSHA, through enforcement and compliance assistance, to see that
employers meet their responsibilities.
In response to the fatalities which occurred at the CityCenter
project, Nevada OSHA has undertaken a comprehensive inspection of that
project. At the request of the state, Federal OSHA is providing an
additional 4 compliance officers because the CityCenter project is
unique in that it is the largest private-sector construction project in
the United States. The 4 additional compliance officers are providing
technical assistance to the state in completing the full-site
inspection as expeditiously as possible. Federal OSHA will continue to
work with Nevada OSHA and other stakeholders to enhance construction
safety in Las Vegas and provide whatever further assistance may be
appropriate.
Committee Question 6: How many week-long crane training classes are
scheduled at the OSHA Training Institute? What are the dates?
a. Are the upcoming classes filled?
b. How many attendees are
i Federal compliance officers
ii. state plan compliance officers
iii. state consultation program employees
OSHA Response: The OSHA Training Institute has two more sessions of
its Cranes and Rigging for Construction class scheduled for the
remainder of FY 2008. The dates are August 19-22 and September 9-12.
The August class is filled; the September class still has seats
available.
------------------------------------------------------------------------
August Sept. Total
------------------------------------------------------------------------
Federal Compliance Officers.................. 28 0 28
State Plan Compliance Officers............... 2 26 28
State Consultation Program Employees......... 7 8 15
Other........................................ 0 0 0
--------------------------
Totals................................. 37 34 \1\ 71
------------------------------------------------------------------------
\1\ As of August 11, 2008
Committee Question 7: About 80 percent of U.S. construction
industry employers have 10 employees or fewer, and over 2 million
workers in the U.S. construction industry are misclassified as self-
employed or independent contractors.
What is OSHA doing to reach small employers, including
homebuilders, and what is OSHA doing to ensure that workers are not
misclassified for safety and health purposes.
OSHA Response: OSHA recognizes the need to reach small construction
employers, including home builders, and has employed a good mix of
outreach, education, enforcement and cooperative programs to deliver a
multi-faceted approach to small business assistance.
OSHA offers a number of resources, programs and services to small
businesses. OSHA provides web-based small business tools, including
OSHA's Compliance Assistance Quick Start, which is a tool to introduce
employers and employees, especially those at new or small businesses to
the compliance assistance resources on OSHA's website. Quick Start
currently includes several modules, including one for construction.
Other online small business tools include the OSHA Small Business
Handbook and Safety Pays, which help employers estimate the costs of
occupational injuries and illnesses and the impact on a company's
profitability. OSHA augments the previously mentioned outreach with its
Spanish-language compliance assistance resources such as safety cards,
booklets, and posters, all available on OSHA's Web site.
OSHA's On-Site Consultation Service offers free and confidential
advice to small and medium-sized businesses in all states across the
country, with priority given to high-hazard worksites. Employers that
participate in the On-Site Consultation Program may seek recognition
under the Safety and Health Achievement Recognition Program (SHARP) for
their exemplary safety and health programs. SHARP provides incentives
and support for small businesses to develop, implement, and
continuously improve safety and health programs. OSHA offers a number
of other Cooperative Programs for small businesses to work with the
Agency, including the Alliance Program, Strategic Partnership Program,
and the Voluntary Protection Programs.
Finally, OSHA makes training available to small businesses through
26 Education Centers around the country. Through the Education Centers,
several construction-related courses are available. OSHA also provides
training through its Outreach Training Program.
As demonstrated by the numerous outreach initiatives already
mentioned, OSHA has a multi-faceted approach for small business
outreach that incorporates specific construction-related outreach.
Regarding the employee misclassification issue; OSHA compliance
officers sometimes encounter individuals during a construction
inspection who claim to be self-employed or an independent contractor,
or encounter a company that claims that a worker is not its employee
but rather an independent contractor. In accordance with the OSHA Field
Inspection Reference Manual Chapter III C. 1. b. (1) Definition of
employee, in such instances, it is OSHA policy to gather information to
determine, based on a common law test of employee status, if the
individual is in fact an employee. An entity that is not an employer is
not subject to citations or other enforcement actions under the OSH
Act, and individuals who are bona fide independent contractors are not
employees as defined in the Act.
______
[The statement of Mr. Altmire follows:]
Prepared Statement of Hon. Jason Altmire, a Representative in Congress
From the State of Pennsylvania
Thank you, Chairman Miller, for holding this important hearing on
OSHA's enforcement of construction safety rules.
Construction is one of the most dangerous industries in the U.S. In
2006, over 1,200 construction workers were killed on the job, and while
construction workers only comprise 8 percent of the total workforce, 22
percent of all work-related deaths are from construction work. Despite
these alarming numbers, OSHA has not updated its crane and derrick
safety standards in over 30 years. Four years ago, labor and employer
groups came to an agreement on new draft standards to improve crane
safety that better reflects new technologies. Despite agreement from
the parties involved, OSHA has yet to turn the draft into an official
proposal.
I look forward to today's testimonies as well as hearing about what
OSHA has done and what they plan to do in the future to address these
work-related deaths. I believe that we can work together to develop
adequate safety standards for our nation's construction workers.
Thank you again, Mr. Chairman, for holding this hearing. I yield
back that balance of my time.
______
[The statement of Mr. Porter follows:]
Prepared Statement of Hon. Jon C. Porter, a Representative in Congress
From the State of Nevada
Thank you Chairman Miller and Ranking Member McKeon for holding
this very important hearing today on construction safety rule
enforcement. I also wish to take this opportunity to extend my
condolences to George Cole, brother-in-law of Harold Billingsley who
lost his life the City Center site in Las Vegas, Nevada. I wish him and
his family all the best and extend my deepest sympathies. I also wish
to express my condolences to all others who have lost their lives in
similar tragedies.
Mr. Chairman, this is obviously an issue of great concern to all
members of the Committee and the full House. It is of greater concern
to those of us from Southern Nevada. Construction and development play
a crucial role in the life and economy of my community in Southern
Nevada. Construction of residences, office buildings, and resorts in
Southern Nevada provide one of our most important sources of jobs and a
major economic driver for my constituents. The construction of MGM
Mirage's City Center resort site is one of the largest in our history
and will represent the largest and most technologically advanced
development on the Las Vegas Boulevard.
This project has run into some challenges since construction began
17 months ago. Along with the six deaths that have occurred to date,
the recent malfunction of an unstable 180-foot crane, caused the Las
Vegas strip to be shut down for an hour. A majority of the union
worker's went on strike halting progress on the site.
I have taken the initiative of speaking directly with Assistant
Secretary of Labor for Occupational Safety and Health, Edwin Foulke, as
well as having my staff speak with Steve Ross, the Secretary Treasurer
of the Southern Nevada Building Trades and Tom Czehowski the director
of Nevada's OSHA. While there may be disagreement over how best to
improve enforcement of standards and regulation of businesses, I
believe there is consensus over the importance of safety training
provided to workers and supervisors. For this reason, I have taken the
action of asking the Appropriations Committee to provide an increase in
funding for our states to use for training of workers and supervisors.
I remain dedicated to finding reasonable solutions to provide for
the safety of our workers. These safety concerns must be addressed by
both federal and state officials, as well as the contractors and
workers carrying out construction. I look forward to hearing from our
witnesses today to see how our federal government can better work with
state, local and union officials in providing the safest possible
working environment.
Again, I thank Chairman Miller and Ranking Member McKeon for
holding this hearing and look forward to a productive discussion of how
our government can help protect our workers.
______
[Whereupon, at 12:43 p.m., the committee was adjourned.]