UNITED STATES DEPARTMENT OF LABOR

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OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

(OSHA)

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HEARING ON THE PROPOSED STANDARD FOR CONFINED SPACES IN CONSTRUCTION

Case No. OSHA-2007-0026

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WEDNESDAY,

JULY 23, 2008

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The Hearing convened at 9:00 a.m. in the Auditorium of the Frances
Perkins Building, 200 Constitution Avenue, NW, Washington, D.C., John M.
Vittone, Administrative Law Judge, presiding.

STAFF PRESENT:

JOHN M. VITTONE, Administrative Law Judge

WILLIAM PARSONS, Directorate of Construction

GARVIN M. BRANCH, Directorate of Construction

ROBERT J. BIERSNER, Office of the Solicitor

ALLISON G. KRAMER, Office of the Solicitor

ROBERT E. BURT, Office of Regulatory Analysis (OSHA)

JENS K. SVENSON, Office of Regulatory Analysis (OSHA)

WITNESSES:

DEAN BERNAL

DANIEL K. SHIPP

JANICE BRADLEY

RAY RHODES

MARK LABRIOLA

PAUL EMRATH

MIKE THIBODEAUX

ARTHUR G. SAPPER

KATHY ROMANS

ART DANIEL

TOMMY LEE

STEPHEN C. YOHAY

CRAIG A. SHAFFER

LYLE SCHELLENBERG

WILLIAM SANTA

[TABLE OF CONTENTS]{.underline}

[WITNESS]{.underline} [PAGE NO.]{.underline}

DEAN BERNAL, JD Abrams, LP 5

DANIEL K. SHIPP, International Safety 35

Equipment Association

NATIONAL ASSOCIATION OF HOME BUILDERS

ART SAPPER, Esq., McDermott Will & Emery 59

RAY RHODES, Small Home Builder, 60

Sanford, NC

MICHAEL THIBODEAUX, Safety Consultant 66

MARK LABRIOLA, National Director of Safety 69

Centex Homes

PAUL EMRATH, Assistant Staff Vice 76

President, Housing Policy Research, NAHB

KATHY ROMANS, National Association of 119

Sewer Services

ASSOCIATED GENERAL CONTRACTORS OF AMERICA

ART DANIEL, A.R. Daniel Construction 148

Services

TOMMY LEE, WS Bellos Construction 159

CRAIG A. SHAFFER, Safety Works, 206

Associated Builders and Contractors, Inc.

[EXHIBITS]{.underline} [MARKED]{.underline} [RECEIVED]{.underline}

No. 0204 Bernal Submission 35 35

No. 0205 Shipp Submission 58 58

No. 0206 Labriola Submission 205 205

No. 0207 Lee Submission 206-207 206-207

No. 0208 Daniel Submission 206-207 206-207

No. 0209 Shaffer Submission 228 228

P-R-O-C-E-E-D-I-N-G-S

9:13 a.m.

JUDGE VITTONE: Good morning. I apologize for being late, D.C.\'s finest
put in a new road block on my way into work this morning, so it took me
longer to get around it than I thought. I apologize.

We resume our hearings this morning into confined spaces. Before we
begin with our first set of witnesses does OSHA have anything for the
record this morning?

MR. BIERSNER: No, your Honor. The last two witnesses, Mr. Schellenberg
and Mr. Santa, have indicated that they will not be appearing today, so
that will shorten us by about 40 minutes or so.

JUDGE VITTONE: Mr. Schellenberg from Armadillo Underground and Mr. Santa
from Alex E. Perry\'s Contracting Company.

MR. BIERSNER: That\'s correct.

JUDGE VITTONE: They will not be here.

MR. BIERSNER: They will not be here today.

JUDGE VITTONE: All right, thank you very much.

All right, we begin this morning with representatives from the
Associated General Contractors of Texas.

Mr. Bernal.

MR. BERNAL: Your Honor, we, too, will be shorter than anticipated on our
schedule. Mr. Pebley had to leave yesterday and go back to the wonderful
valley that\'s normally sunny in Texas to the anticipated \-- well, not
anticipated now, but he hurricane that\'s hitting land with lots of
water. So, we will be short, but I will present just a few comments on
Mr. Pebley\'s behalf.

JUDGE VITTONE: Okay.

MR. BERNAL: First of all, I want to thank the Judge and the panel for
having us here. My name is Dean Bernal. I am a Vice President of Safety
and Human Resources for JD Abrams, LP in Austin, Texas. We are one of
the larger members of the agency of AGC of Texas, and, unfortunately,
for the AGC of Texas the larger members with revenue volumes of \$200 or
more million is pretty low. There\'s probably about 20 of us. The
majority of our members are much smaller contractors, family-owned
businesses.

We are, primarily, a heavy highway contractor, building roads and
bridges around the state. We have offices in Austin, Houston, Dallas, El
Paso, covering the whole Metroplex of Texas.

A lot of our jobs are self-performed work, we do 85 percent of the work
ourselves, push the dirt, build the bridges, lay storm sewer, we do not
lay any live, active or anticipated sewer. I say storm sewer, it\'s
really storm drain. We really do no sewer work at all. We will
subcontract that out to other companies.

Typically, we have five or eight projects going on at any one area,
city, and within those five or eight projects we have, roughly, crews
ranging from, oh, five to eight or ten employees. We, roughly, have
about 1,000 employees throughout the year working every day, normally,
on a work week Monday through Saturday, or Monday through Friday, and
it\'s rare for us to miss a couple days of work for weather.

Since our inception of Abrams in \'66, 1966, we have never had a
confined space recordable incident, first aid injury, and so forth.
It\'s pretty rare for Abrams to even encounter a confined space, what is
currently in the regulations as a confined space.

With that in the new regulations, it would \-- we could see Abrams and a
lot of our members in the AGC of Texas becoming involved in the current
proposed regulations as proposed now.

Controlling contractor for, like I said earlier, for our underground
work that involves a sewer, or a sewer line, tapping into a live sewer
line, we rely on our subcontractors. In a lot of cases, a
subcontractor\'s work is never overseen by our supervisory personnel on
staff, on the field. We rely on our expertise of the subcontractor to
perform the work efficiently and safely.

In a lot of instances, where the new standard would have us as an
employer of a general contractor getting involved with a
subcontractor\'s work, it would, in a lot of cases, take time away from
our superintendents overseeing our own employees\' work and the safety
that we involve our superintendents with daily on the projects.

Training, our employees are currently \-- we do a lot of training. I
will tell you that in Texas, and especially with our business, we have a
lot of turnover. At times a lot of our areas can experience a 100
percent turnover rate in various cities, so training is a big issue for
us. We do a lot of training.

Our training is done in English and in Spanish. Everything that we put
out in paper on safety, or any memo or anything, is all put out in
English on one side, Spanish on the other.

Our work force is predominantly about 80 percent Hispanic, and training
is a big issue. We often write our training programs to meet a fourth
grade education level. We like to keep it simple.

We have a saying at Abrams on our training, that if we tell an employee,
and they hear it, they will often forget it, if they see it they
remember it somewhat, but if they do it, and we\'re involved with the
employee doing the operation safely and having them see it for
themselves and physically being there while they do it, they really
understand it. So, it takes a lot of staff and a lot of professional
safety help to do all of our training on site.

The notification, the requirement regarding notification to employees
and representatives who work near a confined space, at any given time we
can have a lot of employees, whether they be equipment operators, form
builders, laborers, concrete finishers, and so forth, that get near, in
my opinion, would be near a confined space, so near.

Near, at yesterday\'s hearing, you know, I really didn\'t get a good
definition of near, so near for us could be a lot of people exposed to a
confined space as currently proposed. We just need a better definition
of near, so we know how we are going to train, and how many people we
are going to train.

Posting of warning signs, in our environment a lot of the warning signs
are constantly being knocked over, whether by us, subcontractors, third
party vehicles driving through our construction sites. We get a lot of
replacement of signs. The standard is talking about posting a warning
sign and an attendant, you know, we see that easily done in a fixed
location, a factory, you know, a process area, plant, and so forth, but
for us that\'s a big issue. We normally have two to three individuals
that constantly patrol a one to five mile area, which could be a typical
job site for us to replace signs daily, just daily. So, this would be
another sign going up.

For the question we have on rescue personnel, we just don\'t have
competent people that we can truly train in rescue operations. We have
gone so far as to ask various municipalities that we work in, and
various smaller cities that have volunteer fire departments, on giving
us timetables that we could adequately be prepared for them to respond
to an incident if it occurred on one of our projects and, unfortunately,
the municipalities and the small volunteer fire departments are telling
us that they would not commit to any such time period, and wouldn\'t
even commit on the smaller volunteers if they could even perform a
rescue.

So, for us, that involves \-- we would need to create our own rescue
groups, and I\'m not quite sure that in some areas we would have people
that could truly be able to comprehend a rescue, and effectively rescue
properly employees, if they were to become in a confined space. But,
it\'s rare for us to even be in a confined space. It is \-- I will tell
you that we may run into a confined space in our operations once or
twice a year. It\'s very, very rare.

Currently, just to mention, we are an affiliate chapter of the
Associated General Contractors of America. We are currently \-- the
Associated General Contractors of America is currently having a survey
for our members to source cost information. The cost data is going to be
analyzed by an economist, and from that point forward we would hope to
share the information in the post hearing period from the data we\'ve
gathered.

Those are my brief comments on what I wanted to discuss today. I don\'t
know if you wanted me to briefly hit on Mr. Pebley\'s comments at this
point, or just wait.

JUDGE VITTONE: All right, thank you, Mr. Bernal.

First, any questions from the audience? Any participants have questions?
I see no hands.

Oh, yes.

MS. BOR: Good morning, Victoria Bor, from the Building Trades. Just a
couple of questions.

You said that it\'s rare that your company actually deals with confined
spaces, that it only happens a couple of times a year. When you do have,
on those few times a year, what sort of precautions do you take when you
have employees that have to enter a confined space?

MR. BERNAL: The last area that I would consider where we entered a
confined space was an excavation that was 40 foot deep, and laying storm
drain. In that instance, we took the six \-- reviewed the six current
OSHA standards in construction that mention confined space, analyzed
those, as well as briefly went through the confined space standard for
general industry, and put together a somewhat abbreviated understanding
of what we were going to do in following the six standards plus some of
the general industry standard.

MS. BOR: And, do you have \-- other than putting aside the controlling
contractor issue for the moment, are there parts of the proposed
standard that you feel would require you to do more than what you did in
that situation?

MR. BERNAL: Yes, very much so.

MS. BOR: And, could you \--

MR. BERNAL: Well, first of all, putting aside controlling contractors,
for us it would require, we believe, more professional safety staff on
site to help just implement the standard.

Unfortunately, for me I\'ve got a college education with a safety degree
from Texas A&M, and it\'s a joke in Texas of going to A&M, but it took
me at least 20 times reading the standard to somewhat understand it, but
I\'m not sure I really understand it still. So, I think it would require
a more educated person on our staff to truly help implement in the field
operations, because our field employees just don\'t have the level of
understanding the current proposed standard.

MS. BOR: But, that\'s \-- okay, but what you are saying though is that
the way it\'s stated is complicated. Do you think that the actual
requirements are more complicated?

MR. BERNAL: I would \-- I would say so for us, yes, since we\'ve never
truly been involved with confined spaces per se, now we are starting,
we\'d have to, you know, look at four different levels of confined
spaces, as I understand it to be labeled, it would require more on our
part in education and training.

MS. BOR: Education and training, that\'s sort of the issue here, is that
\--

MR. BERNAL: That\'s one issue, yes.

MS. BOR: And, in what other ways do you see that it would require more
of your staff?

MR. BERNAL: More of our staff, just being involved with going into the
subcontractors. As I see the standard now proposed, it would require a
lot of our folks, safety type folks, to be up on and with
subcontractors, and we just don\'t have the staff for that.

Our philosophy has always been, we are not a \-- you know, the
philosophy of having a safety professional on site, on a construction
site, our philosophy is in a lot of those instances the management, the
superintendents, foremen, often throw the \-- we\'ll say, that\'s his
job, that\'s a safety person\'s job, and it\'s not. Our philosophy
starts from our president on down as being the responsible person on our
site, so the superintendent and the project manager and foremen, that\'s
their job.

MS. BOR: Do you use \-- do you have someone that is designated as a
competent person on your jobs?

MR. BERNAL: We do in various operations, yes.

MS. BOR: Now, I want to get back to the issues that you raised with
respect to the controlling contractor, and again, your understanding of
the standard.

what, specifically, do you understand the standard to require of your
company as a controlling contractor, with respect to your subs?

MR. BERNAL: Well, first of all, we don\'t believe in the controlling
contractor two words, but if we were a controlling contractor \--

MS. BOR: Your understanding of what the standard says.

MR. BERNAL: Assuming we were, assuming we were a controlling contractor,
we believe that what it puts back on us is thoroughly checking the
subcontractors and their duties of complying with the standard.

MS. BOR: Okay, so that\'s how you read the standard, that it requires
you to thoroughly check what the sub is doing at all times?

MR. BERNAL: Yes, ma\'am. If a subcontractor turns in paperwork to us, we
are just not \-- we would not just take the paperwork and information
given to us as being accurate. We would want to send someone out to
check on what\'s being performed that was given to us from the
subcontractor.

MS. BOR: And, do you read the standard as requiring that you take that
step?

MR. BERNAL: I would say that I would not say that I physically read the
standard as requiring that, but we\'ve already taken the interpretation
in our minds as being we have to do that.

MS. BOR: You have to do that because that\'s what the standard would
require you to do.

MR. BERNAL: We believe so.

MS. BOR: Okay, that\'s fine.

Okay, thank you.

Actually, can I ask a question about \-- you said you haven\'t asked \--
you haven\'t read the standard, I don\'t know whether I\'m in a position
to ask him to submit something, but I would be interested in your \--
you know, looking at the standard and identifying for the record where
you see those requirements in the standard. Is that something that \--

MR. BERNAL: I believe that I have \-- didn\'t say that I have not read
the standard.

MS. BOR: No, no, no. Well \--

MR. BERNAL: I can \-- if you all would like, I can go through it and
submit it later where I see that, I can do that, or not, whatever you
all want.

JUDGE VITTONE: I\'m not sure if I understand what your question is.

MS. BOR: Well, I\'m interested in knowing where \-- that employers are
reading the standard to require certain things, and my question is,
where in the standard is that required, and I don\'t think I\'m really
in a position to say right now, you know, where you see it in the
standard, and I would like to know where it is.

MR. BERNAL: And, I think what I\'m saying is, I\'m not sure that I\'ve
specifically seen in the standard where it requires the \"controlling
contractor\" to go out and confirm that everything is correct, is what
your question is, I believe.

MS. BOR: Right.

MR. BERNAL: And, I\'m not sure that that\'s in there at all, or that I
\-- written as that, but our interpretation is that\'s going to be the
next step for us, if we get a piece of paper we just don\'t say, sure, I
mean, it\'s like a subcontractor getting a bundle of steel and wanting
to be paid for a bundle of steel being delivered, we have someone checks
it. I mean, it\'s not \-- we don\'t take the words of 15 percent of our
work being performed is not truly happening.

I\'m not sure that was a good answer, but that\'s \-- but I guess a real
answer is, we are already anticipating if the standard goes out as is,
and an incident occurs on our side with a subcontractor, the question is
going to be why didn\'t we check on it.

MS. BOR: Okay. Thank you.

JUDGE VITTONE: Thank you, Ms. Bor.

Anyone else?

Mr. Kennedy?

MR. KENNEDY: Good morning, Judge.

JUDGE VITTONE: Good morning.

MR. KENNEDY: Panel, morning.

A couple of things here that popped up in your presentation, as a
general contractor you can answer them probably better than any of us.

You mentioned, in reference to confusion, do you foresee that the newly
proposed standard would cause confusion and misunderstanding within the
ranks of your managers and employees, if it\'s implemented as currently
written?

MR. BERNAL: Currently as written, yes. We would have to \-- we would
have to try to digest the standard and break it down into a fourth grade
education level, where our folks could truly understand what the
standard says.

MR. KENNEDY: Okay.

MR. BERNAL: And, that would require a lot of training on our part.

MR. KENNEDY: In both English and Spanish, you say.

MR. BERNAL: English and Spanish, yes, sir.

MR. KENNEDY: Okay, and that would cost \--

MR. BERNAL: That would be a lot, that would be a lot for us. That would
be \-- I will tell you that with 228 salary employees as of last Friday,
if those all would be trained it would take probably four days in each
city, so 12 days, plus probably four hours a training session, so it
would be quite a bit.

MR. KENNEDY: It keeps adding up.

This goes back, this follows up on training, too. You mentioned that it
would have \-- you don\'t have rescue teams on site, on your own staff
or anything.

MR. BERNAL: No.

MR. KENNEDY: You mentioned that you would have to create your own rescue
team probably, or, I guess, your subcontractors would.

MR. BERNAL: Yes.

MR. KENNEDY: Do you have any idea how much that would cost to train a
rescue team, any guesstimate? I mean, you went to A&M, I know they have
a training program down there they do twice year.

MR. BERNAL: They do have a training program.

MR. KENNEDY: They offer it twice a year right now, but that\'s about it.

MR. BERNAL: I would say that \-- I don\'t know, have an exact dollar,
but it would be quite expensive, I would believe, for us because, you
know, it\'s not only the training, but a rescue operation would probably
be rarely performed. So, to keep the competency level up of a rescue
group that\'s been trained would require update training and various
training throughout the year, and we would probably, just in my mind
right now, would think that you\'d have to do that at least monthly for
them to retain the information, or every other month just to retain the
information.

MR. KENNEDY: Would you estimate it would cost hundreds, or thousands, or
millions?

MR. BERNAL: Thousands.

MR. KENNEDY: Per man?

MR. BERNAL: I would say thousands per man, yes.

MR. KENNEDY: Okay. And That would also require us, actually, also
getting \-- for us, it would probably be a specialized trailer that had
rescue equipment in it involved, and for us on a highway project things
come and go real quickly, so it would be something that would probably
have to be replenished at least every quarter.

MR. KENNEDY: And, you\'d have to do this even though you only do a few
confined space entries a year, according to the standard.

MR. BERNAL: According to what we see now, we\'d probably be one or two.

MR. KENNEDY: But, you\'d still have to have all this \--

MR. BERNAL: Yes.

MR. KENNEDY: \-- or an outside team that would also cost a lot of money.
Okay.

As a controlling contractor, would you foresee the possibility of the
information that is provided to you by a subcontractor, say, one of our
members, one of the utility contractors, and maybe several others on
site who might be going in and out of those confined spaces, those storm
drains, those sewers that are part of your contract, that information
that you\'ve collected, is it foreseeable that this information could be
miscommunicated to another contractor who requested the information, who
might rely on that information, instead of making their own observations
and testing the space and doing their own thing?

MR. BERNAL: That could definitely happen. I mean, in some cases our
projects are run by a superintendent, and his office is his pick-up
truck and a 16-foot trailer that he\'s pulling behind his pick-up truck,
and storing the information in his truck, you know, that type of person
is just not a paper work drive individual, that\'s going to be properly
storing information and there\'s the potential of giving bad information
to another subcontractor, it definitely could happen.

MR. KENNEDY: The possibility is there. Okay.

And, last but not least, associated with that, do you foresee that there
would be additional potential liability to your company if they
mistakenly said a space was clean and it turned out it had hydrogen
sulphide in it or something like that, and somebody relied on that
information?

MR. BERNAL: Definitely, and that\'s kind of what I was alluding to from
the previous question, is, you know, the liability on us is, we have to
go out and check up on our subcontractors if presented a piece of paper.
We just can\'t say, yes, everything is true on that paper, til we see it
ourselves.

MR. KENNEDY: And, that goes back to what you were saying a few minutes
ago about supervisors and foremen not being paper driven.

MR. BERNAL: Yes, sir.

MR. KENNEDY: Yes, okay.

Thank you, sir.

JUDGE VITTONE: Thank you, Mr. Kennedy.

Anyone else?

Does the OSHA panel have any questions?

MR. BIERSNER: Yes, Your Honor.

You mentioned that your preferable way of training your employees, or
your company\'s employees, was to use sort of a performance-based or
performance-oriented training, have them do the job.

MR. BERNAL: Yes, sir.

MR. BIERSNER: Or, do the task, practice the task.

Do you see anything in the proposal that would inhibit or interfere with
that way of training your employees?

MR. BERNAL: I don\'t think it would inhibit, it would just be a long
time frame for us to go through everything in the standard and make sure
they understood it.

We would probably have to create a confined space just to cover a lot of
what potentially was in the standard. I mean, for us, being one or two a
year, we would have to probably actually create a confined space to do
training with, on each project.

MR. BIERSNER: So, the way of training would remain the same, it would be
just more training.

MR. BERNAL: It would be more time, more training, and, you know,
physically setting up a confined space.

MR. BIERSNER: On page three of the comments that were provided by the
AGC of Texas, it said that the member firms are currently following, I
think, the confined space provision of the excavation standard 1926
651(g) when working in confined spaces that are not currently covered by
1926 651. You are doing the subpart (g) confined space.

But ow, later on you explained it that you are not \-- my impression was
you were saying, is that you are not doing that, that you are doing some
combination of 651 plus other confined space provisions, and 146, is
that correct?

MR. BERNAL: I would say that probably some of the more larger, advanced
contractors within the trade association would refer to 146 in the
General Industry Standards for additional information, but most of our
members are following a lot of the six standards already in the 1926
talking of confined space.

MR. BIERSNER: Including 651 and 800 and other \--

MR. BERNAL: 956, 21, you know, twice, 800, and so forth, yes.

MR. BIERSNER: So, you think the larger ones are going with 146, and the
other smaller organizations with some combination of.

MR. BERNAL: In some cases, yes.

MR. BIERSNER: Okay. Mr. Branch?

MR. BRANCH: When you use the term confined space, are you specifically
referring to a permit space as defined in 146 or all confined spaces?

MR. BERNAL: I am not sure that \-- I would say that a confined space for
us in the highway industry roughly comes to about \-- currently comes to
about two locations. When a lot of our members do deep storm drain work,
and when they have to enter an enclosed beam, which is pretty rare, a
pretty rare occasion.

MR. BRANCH: The only reason why I ask that is, you would only be
required to have attendants and rescue provisions if you were in a
permit space, and that\'s true for \-- well, that\'s true for both of
our standards \-- we have a subset in our standard, a continued
assistant space, in which you would also have to have attendants and
rescue provisions.

Any time you enter those spaces you would have to meet those
requirements, and I appreciate your honesty in telling us how you, you
know, put together your programs. That\'s what we find, especially,
during this particular hearing and the reading of the comments, is that
many small subcontractors are using a combination of the General
Industry Standard and other applicable standards as 1926 21(b)(6)
requires them to do.

However, they are not quite aware of all of the requirements of 146, for
the particular types of classifications of spaces that they are
entering. If anything, this standard serves as a notice to the public of
how we would enforce the General Industry Standard, because those
requirements are the same.

Currently, and I want to just reiterate again, you typically use third
party rescue provisions to meet the requirements in 146, is that
correct?

MR. BERNAL: Yes, we would, yes.

MR. BRANCH: With regard to a comment that you had on page seven, you
mentioned that you believe that our proposed standard required the entry
supervisor to be on site at all times. Know that\'s not the intent of
the standard. We do require that they be able to accomplish all their
duties, be able to perform their duties at all times.

How do you handle, in the wide open spaces, when you have several
confined spaces going on, does one entry supervisor cover the whole
area, and how effective is that?

MR. BERNAL: Unfortunately, I don\'t think I could answer that question,
because in our \-- in my 21 years at Abrams I can tell you that we\'ve
never had what we would have considered two confined spaces in one
location.

I would see, under the new standard, though, proposed standard, that we
would probably have a lot of potentially classified confined spaces, I
mean a lot. I mean, we build bridges on \-- three bridges in a five-mile
stretch, where we potentially, under the new proposed standard, may have
a confined space or classification of such. We would require a
superintendent, project manager or engineer to physically go by each one
while we are checking on that.

So, it\'s going to take more people power on our part, because we would
want to double check everything.

MR. BRANCH: That brings me into another question I had with regard to
scope. Why do you believe that this proposed standard would increase the
number of confined spaces that you would be working with, and don\'t
they meet the requirements of a confined space for general industry as
well?

MR. BERNAL: Well, I would tell you that I would agree that they do meet
\-- they could meet the requirements of the current general industry,
but for us, you know, when you specifically say columns, forms, you
know, we are thinking going in column forms that are six foot, four
foot, two foot tall, 20 foot tall, we don\'t ever go to the bottom of a
20 foot tall column form, we are at the top of it, so there\'s really
\-- but to us that would require checking it as a potential confined
space, because we could see ourselves unlatching, unhooking rebar, going
in a column form at the top of a 20 foot column and being questioned
during an inspection why it\'s a confined space.

Whereas, where have you done your due diligence to comply with the
proposed standard or standard as it would be.

MR. BRANCH: I guess I need to kind of clarify that. We believe the
definitions and interpretations that have been applied for general
industry, we believe we\'ve kept that fairly consistent. I\'m trying to
get at how would a confined space that you encounter, that meets the
definition of a general industry confined space, how would you now have
an increased number of confined spaces on your sites, versus what you
are doing now, if you are following the General Industry Standard?

MR. BERNAL: Well, I would say that we are truly not following the
General Industry Standard, we are following six standards in 1926, and
then relying on reviewing various information out of the General
Industry Standard.

I will tell you that 99 percent of our employees have never seen the
General Industry Standards.

MR. BRANCH: Thank you.

With regard to maintenance of documents, is it a usual and customary
practice in your industry to collect, say, for instance, safety programs
of your subs?

MR. BERNAL: Yes, it is.

MR. BRANCH: Would that \-- would our requirement for you gathering
information about the spaces create any extra burdens that thee types of
burdens for maintenance of those safety programs, would that bring any
additional burdens to your company?

MR. BERNAL: Not the specific safety programs, as we receive that prior
to the start of a project. But, what we would see is additional
paperwork flowing from the subcontractor, filling out paperwork on
potential confined spaces that they classified, and would fill out a
form, a lot of times our people get form driven, and that\'s where the
confusions come, in the storing of documents, misplacement of documents
occurs just because our superintendents aren\'t paper people, they are
builders.

MR. BRANCH: That\'s all. Thank you.

MR. BIERSNER: Robert?

MR. BURT: My questions have been covered by others.

MR. BIERSNER: Allison?

MS. KRAMER: No questions for this witness.

MR. BIERSNER: Okay, that\'s the OSHA testimony, Your Honor, or the
questioning.

JUDGE VITTONE: Thank you.

Thank you, Mr. Bernal, appreciate your time.

MR. BERNAL: I was going \-- I was going to say something for Mr. Pebley,
but Mr. Pebley is a more invigorating speaker than me, so I will save it
just for what he has submitted.

JUDGE VITTONE: Okay, thank you, sir.

MR. BIERSNER: Your Honor, at this point I\'d like to identify Mr.
Bernal\'s submission to me on his written testimony as Exhibit 0204 and
request it be entered into the record of this hearing.

JUDGE VITTONE: It will be made part of the record.

(Whereupon, the document was marked for identification as Exhibit No.
0204, and was received in evidence.)

MR. BIERSNER: Thank you.

Mr. Shipp, International Safety Equipment Association.

JUDGE VITTONE: Good morning.

MR. SHIPP: Morning.

JUDGE VITTONE: Mr. Shipp, state your full name and who you represent,
please.

MR. SHIPP: My name is Daniel K. Shipp, and I\'m President of the
International Safety Equipment Association. With me this morning, with
your permission, is Janice Cumer Bradley, who is the technical Director
at ISEA.

JUDGE VITTONE: Welcome.

MR. SHIPP: Good morning, I\'m Dan Shipp, President of ISEA, the
International Safety Equipment Association.

With your permission, I would like to enter our prepared testimony into
the record and summarize for the purposes of the hearing this morning.

JUDGE VITTONE: Go right ahead.

MR. SHIPP: ISEA is the trade association for PPE. It includes all sort
of PPE, all types of personal protective equipment that is used to
protect workers and identify atmospheric contaminants working in
confined spaces.

ISEA is an accredited standards developer by ANSI, in addition to ANSI
ISEA Standards for gas detector tubes and passive monitoring air
sampling devices, ISEA is also represented on the ANSI Committees for
Confined Spaces, Z117, Fall Protection, Z359, and Construction, A10.

Ms. Bradley represents ISEA on those committees, as well as
representatives of our member companies.

We appreciate the opportunity to appear at this hearing and comment on
certain parts of the proposed rules requirements for entry and retrieval
systems, and for atmospheric monitoring equipment.

In the proposed rule, first of all, OSHA specifies that a hoisting
system used in a confined space must be designed and manufactured for
personnel hoisting, and that when a retrieval device is used it has been
designed and manufactured for retrieving personnel. We think this is a
good requirement. These systems are readily available from multiple
suppliers in various configurations.

Second point, in the definition of physical hazard in the proposed rule,
this definition includes explosives, mechanical, electrical, hydraulic
and pneumatic injury, radiation temperature extremes, engulfment noise,
and inwardly converging surfaces.

ISEA recommends that falls be added to that list, as a physical hazard.
While most falls occur during entry into and exit from confined spaces,
falls to a lower level also occur within the confined space.

OSHA should require either passive means to prevent fall injuries, such
as guard rails, or active means such as fall arrest systems when
employees are exposed to a possible fall of six feet or more.

Another point in the criteria for non-entry rescue in a PRCS, this is in
Section 1926.1213, OSHA requires use of a retrieval system that has a
chest or full-body harness. ISEA believes that a full-body harness is
preferable, as it distributes the forces across the torso, making it
easier to lift or lower personnel.

In a quick survey we did of our member companies that supply fall
protection equipment, none of them supplied what could be described as a
chest strap.

Also in that section, OSHA mandates use of a mechanical retrieval device
for retrievals involving vertical distance over five feet.

ISEA believes that a mechanical device should be required any time an
individual in a confined space requires rescue. We know of no studies
indicating that an employee at the surface can safely lift an
incapacitated person a vertical distance of four feet, for example, but
not five feet. This recommendation will also help prevent injury of the
top side attendant.

Regarding the use of atmospheric monitoring equipment in confined
spaces, ISEA believes that continuous monitoring is the only way to
adequately protect workers and permit required confined spaces.

Confined spaces in construction are always changing. Workers are
vulnerable to unexpected changes and atmospheric hazards within the
confined space, as well as mishaps of others working in the confined
space, and possible malfunction of mechanical control devices.

Currently, the general requirement in 1926.1205(a)(3) is to, \"Monitor
periodically and as necessary, unless applicable OSHA requirements or
other provisions of this standard specify a different frequency.\"

ISEA believes the default requirement should be pre-entry test and
continuous monitoring, as long as there are workers in the confined
space.

Continuous monitoring is required for permit required confined spaces,
unless the employer can show that equipment is not commercially
available, or that periodic monitoring is sufficient to ensure that the
hazard is being controlled at a safe level.

ISEA members know of no gaps in commercial availability of monitoring
equipment, except possibly for some exotic contaminants. In that case,
the confined space should still be monitored continuously for oxygen and
combustible gases.

We have cited other examples in the proposed rule where continuous
monitoring is necessary to ensure worker safety in the event, for
example, of a ventilation system failure. We also urge OSHA to specify
that atmospheric testing and monitoring of equipment needed to comply
with the standard be provided at no cost to the employee. We are
confident that this is OSHA\'s intent, since it states in the standard
that this equipment shall be supplied, but we remind the panel of the
employee pay for PPE debates which went on for 11 years. We think this
would be a worthwhile clarification to make in the rule.

OSHA sought comments on some specific parts of the proposed rulemaking.
ISEA will address two of these questions.

Question No. 3 asked for additional information on mechanical retrieval
devices that will not be in the way during a rescue. Such equipment is
readily available from manufacturers, including rescue dab it arms, mass
hoist systems, and other devices specifically designed for confined
space rescue and retrieval. While in our written statement we\'ve
included descriptions and photos of some of these devices, we\'d be glad
to supply more information if you believe that\'s necessary.

The availability of suitable equipment should not be a deterrent to a
requirement for mechanical systems for vertical retrieval.

On the question of timely response to a rescue summons, ISEA refers OSHA
to language in ANSI Z359.2, 2007, Minimum Requirements for a
Comprehensive Managed Fall Protection Program. This standard recommends
a goal of six minutes for contact with a rescue subject. This is based
on the potential hazard to a worker suspended in a full-body harness, or
if the status intolerance can occur in a very short time while an
incapacitated worker is suspended after a fall and awaiting rescue.

The need for prompt rescue, whether to prevent a suspension trauma, the
effects of loss of oxygen or other hazard, has been demonstrated in
countless events occurring within confined spaces in construction. These
cases highlight the need for on-site rescue teams, trained and equipped
to conduct rescue from confined spaces in construction during the first
critical minutes after an accident.

The variety of hazards encountered within confined spaces are numerous,
including toxic vapors, electrical hazards, moving machinery, fire,
noise, falls, and trauma from falling objects.

Access to the injured worker and the means to evacuate the person to a
safe level are complicated by the confined space geometry. Immediate
response to injuries within confined spaces is, therefore, imperative.

Thank you for including ISEA in this hearing. We look forward to
continuing our close cooperation with OSHA in the development of this
and other rules and standards to enhance worker safety and health.

JUDGE VITTONE: Thank you, Mr. Shipp.

Any questions?

Mr. Kennedy?

MR. KENNEDY: I apologize for having to keep asking questions, but every
time somebody speaks something pops into my mind.

JUDGE VITTONE: That\'s why we are here.

MR. KENNEDY: I appreciate the association and the equipment they
provide, Our members use a lot of that equipment and everything, but
there are some things that we need to make sure are clarified for the
record.

First off, from a PPE standpoint, how much would you expect it to cost a
contractor to equip their crews, and probably each crew, with evaluating
the equipment necessary to evaluate confined spaces? Obviously, that
would be an air monitor and any further potential equipment. On average,
how much does that cost?

JUDGE VITTONE: Do you have a figure on that, Dan?

MR. SHIPP: I don\'t have that immediately available. We can certainly
get that.

MR. KENNEDY: If you would. I think the OSHA people need to know and
understand what the costs are.

MS. BRADLEY: I can tell you that the technology for periodic, one-time
monitoring or evaluation, and the technology for continuous monitoring
equipment, has expanded greatly over the last probably five to seven
years, making the continuous monitoring equipment more competitive, more
affordable.

MR. KENNEDY: Oh, absolutely.

MS. BRADLEY: There used to be a large price gap, that\'s not the case
anymore, but we will get you those figures.

MR. KENNEDY: Okay, the costs, because I know the cost of monitors has
gone down considerably, especially in the 18 years I\'ve been with NUCA,
it has dropped very much, and the new equipment is very easy to use, but
there is a cost factor there.

From the entry standpoint, any idea how much it would cost to gear up a
crew with the necessary entry equipment? Again, you might not have these
figures. I mean, if you had to take a guess, I\'m talking harness,
confined space air monitor, et cetera.

MS. BRADLEY: There\'s costs associated with the vertical retrieval
system.

JUDGE VITTONE: Mr. Kennedy, wait until she\'s finished.

MR. KENNEDY: Oh, okay, sorry.

JUDGE VITTONE: Two of you talking at one time does not work.

MS. BRADLEY: The cost of vertical \-- the traditional vertical retrieval
equipment has probably stayed the same over the last five years. Some of
the newer devices that allow you to maintain retrieval without getting
in the way of some emergency responders is fairly new, and I don\'t \--
I really don\'t know.

MR. KENNEDY: Okay. Once again, the figures would, I think, be helpful
for the record.

And, of course \--

MS. BRADLEY: Many of these equipment are portable, and you then can use
them \--

MR. KENNEDY: Oh, of course.

MS. BRADLEY: Okay.

MR. KENNEDY: Of course, yes, I mean tripods go from crew to crew, but
you\'ve still got, you know, an expense there. I mean, I have some ideas
of what they cost, but I don\'t think it\'s my place to put that on the
record.

And then, last but not least, of course, you mentioned rescue and having
a rescue team on site, trained and ready to go, and, of course, when we
are talking about a rescue team we are probably talking three, four men.
Again, any cost figures you could eventually provide, because we
probably don\'t have that all in dollars and cents either, how much it
would cost to gear up a rescue crew for \-- I mean, a team, for a crew,
or just put the equipment on site for the members of the team if they
could find and afford the training, how much would that cost?

I tend to agree with you, I definitely agree with your body harness
concept, and the concept of continuous monitoring. I don\'t have a
problem with that.

Yesterday, one of the speakers opposed the use of wristlets in any
situation. Does your association agree with that?

MR. SHIPP: We don\'t specifically have a position on the question of
wristlets. We haven\'t addressed that. Our members, as I say,
manufacture a full range of product for rescue and retrieval. The
preference, clearly, is for the use of a harness to distribute the load
across the entire torso. We recognize that may be hard to do in some
very tight confined spaces, in that case I\'m not as familiar with the
practice of confined space entry, I would think that you would send
somebody with a harness in a situation like that.

MR. KENNEDY: Generally speaking you would. We end up, actually, using
wristlets as anklets to pull people out, okay, if they had to be pulled
out of a horizontal pipe, and I was wondering, that was my question, but
you just indicated you are not sure, so I\'ll just leave that alone.

Okay, thank you.

JUDGE VITTONE: Thank you, Mr. Kennedy.

Anyone else?

OSHA panel?

MR. BIERSNER: Yes, we have some questions, Your Honor.

I\'m concerned about your remark that personal monitor detection devices
be considered \-- I\'m assuming that what you are stating is that they
be considered PPE and be covered, and that we insert language that
requires the employers pay for these devices for employees, is that what
you are saying?

MR. SHIPP: If they were considered PPE they\'d be covered by the PPE
standard already and the requirement. We are saying that to avoid any
possible down the road problems with the Review Commission or whatever,
that we would recommend that OSHA state in this rule, make it clear that
atmospheric monitoring equipment is provided at no cost to the employee.
We assume that that\'s the intention of the proposal, and that that\'s
the normal practice.

We are also aware that assumptions were made years ago in other rules,
and it took a long time to resolve.

MR. BIERSNER: So, you are actually not recommending that we consider
them to be PPE, but that we just insert a statement in the final that
would ensure that employers cover them when they use them, is that
correct?

MS. BRADLEY: That\'s correct.

MR. SHIPP: Yes.

MR. BIERSNER: Would you \-- I\'ve noticed in the comments that you\'ve
submitted to us that you \-- oh, I also had another follow-on question,
do you know of any instances now where employees would have to pay for
those sorts of personal monitors?

MR. SHIPP: None.

MS. BRADLEY: No.

MR. BIERSNER: In your submission to us, you describe some vertical
retrieval systems. Could you, just for the benefit of the audience and
for the record, make some additional comments on those vertical \--
describe them and how many, how often they are used, and under what
situations, and what the purchasers of those equipment have to say about
them?

MR. SHIPP: The last point, I don\'t have any feedback from what the
purchasers of this equipment have to say. This is a question I would
have to defer to the manufacturers in this case. There are several
manufacturers of these types of devices out there, and we can pose that
question to them and see what sort of feedback they get, and where they
find them in use.

MS. BRADLEY: Just for the benefit of some of the people in the audience
that don\'t have our written comments with them, if there\'s anyone that
wants it they are readily available, but we did include some photographs
of some retrieval systems that are designed specifically for
configurations of entry and exit that might be more cumbersome than just
a plain vertical or horizontal entry or exit.

If your confined space is on an angle, or its access to the entry portal
is changed in such a way that there could be obstacles in front of it,
these types of retrieval devices are designed specifically to aid in
that type of rescue.

MR. BIERSNER: So, this is, basically, to make the portal more
obstruction free.

MS. BRADLEY: That\'s correct.

MR. BIERSNER: And, ease to the retrieval process.

MR. SHIPP: It avoids the problem that you might run into as well with
having a tripod over a manhole, something like that.

MR. BIERSNER: You mentioned that \-- I\'m assuming from your statements
that you are saying any time that a vertical lift is made in a confined
space that there be fall protection provided. Is that your \-- is that
the summary of your statement?

MR. SHIPP: Yes.

MR. BIERSNER: Regardless of the instance?

MR. SHIPP: Yes.

MR. BIERSNER: You said two feet, I remember, in the comment.

Don\'t you think that it\'s \-- I mean, rather in the current OSHA
standard, construction standard, I believe, is six feet, that you have
to have fall protection that they would be required, under those
circumstances in every confined space under the proposal, to have fall
protection. So, you are saying that we should, in a way, modify that
standard so that any vertical distance would require?

MR. SHIPP: What we are saying is, there should be mechanical retrieval
for any confined space, not just limited to those with a vertical
retrieval distance of five feet or more.

MR. BIERSNER: If we made fall a recognized hazard \-- or a hazard in a
confined space under our physical hazard definition, you realize that
that would put the employers in a position where every time there\'s a
fall hazard in a confined space it would be a permit required confined
space, and they\'d have the additional burden of having to comply with
those requirements?

MS. BRADLEY: I just want to clarify that our recommendation to include
the full-body harness for fall protection is for six feet or more. The
retrieval mechanism we believe should be required for any confined
space. I believe the proposed rule mentions five feet, and we believe
that any time you go in a confined space you should have retrieval
equipment available.

MR. BIERSNER: Okay, and to go on to my other question.

The implication of what you recommended by making a fall a physical
hazard would be to put employers into \-- any time a fall hazard is
present they would have an automatically defined permit required
confined space, and have to assume the burdens of all of that space. Do
you recognize that, of those requirements?

MS. BRADLEY: Yes, but I think OSHA could put some language in that
offered, for example, in our testimony we also offer the names of
passive fall protections, guards rails and other things, as a means of
controlling the fall hazard. So, I think there\'s area to work within
the proposal to accommodate some of the smaller companies that,
obviously, don\'t want the burden of having every confined space be
permit acquired.

MR. BIERSNER: But, in the case of a physical hazard, it would have to be
isolated in order to reduce the burden to some minimal amount.

MS. BRADLEY: Well, six feet is a long way, you know, and a safety and
health professional I don\'t see the difference between falling six or
more feet in a confined space to falling six or more feet out of a
confined space. The trauma to the body is the same. Actually, in the
confined space it might be more significant.

MR. BIERSNER: I think other panel members also have questions.

MR. BRANCH: As you may know, one of the few differences between the
General Industry Standard and the proposed standard for construction is
that the proposed standard requires the employer to provide methods for
non-entry rescue.

Do you believe, based on your experiences, that your \-- members of your
association have equipment that\'s available for the employers to comply
with this provision?

MR. SHIPP: Yes.

MR. BRANCH: Are you aware of any retrieval systems that don\'t
incorporate retrieval lines?

MS. BRADLEY: I can\'t think of any right now, I mean, depending on,
it\'s always some type of line system, as far as I know.

MR. BRANCH: And, I ask that question because we do have an exception in
the rule for where the configuration of the space makes it such that the
lines would entangle, or that they would be cut or something. I was just
looking for any information that you could offer of how an employer can
use any other type of equipment to still meet the requirements of
non-entry rescue and not have to rely on \--

MS. BRADLEY: I\'ll do some more research on that and take a look at some
of the newer systems that may be either available now or coming out, to
see if they offer an alternative that would allow them to have a
non-permit required confined space.

MR. BRANCH: That would be appreciated.

MR. BIERSNER: If you could submit that to the post hearing \-- during
our post hearing comment period. which will be about 30 days after this
session.

MS. BRADLEY: I\'d be happy to.

MR. BRANCH: Also, you mentioned that you \-- in your comment about
summoning help, and the time limits of it, you mentioned studies
regarding folks being suspended. Could you also submit any documents \--

MS. BRADLEY: Yes, there are studies that are associated with the 2007
revision of the Z359.2 standard for fall protection, I\'d be happy to do
that.

MR. BRANCH: Thank you very much.

MR. SHIPP: I believe also in our written comments we refer to an OSHA
SHIB on suspension trauma or orthostatic intolerance.

MR. BIERSNER: Could you describe for me what suspension trauma is? When
I read that \-- it\'s the effects on the body.

MR. SHIPP: It\'s the effects on the body of being hung in a harness.

MR. BIERSNER: Yes, blood pooling and stuff like that occurs?

MR. SHIPP: Yes.

MR. BIERSNER: Okay. I believe that finishes our questions, Your Honor.

JUDGE VITTONE: Thank you.

MS. BRADLEY: Thank you.

JUDGE VITTONE: Thank you very much, Mr. Shipp.

MR. BIERSNER: At this point, Your Honor, I\'d like to admit to the
record and identify for the record Mr. Shipp\'s written comments as
Exhibit 0205, and request that they be admitted into the record of this
hearing.

JUDGE VITTONE: They will be made a part of the record.

MR. BIERSNER: Thank you.

(Whereupon, the document was marked for identification as Exhibit No.
0205, and was received in evidence.)

JUDGE VITTONE: Gentlemen, we\'re going to take a five-minute break, and
when we come back we will have a panel from the National Association of
Home Builders.

Thank you, gentlemen \-- ladies and gentlemen.

(Whereupon, at 10:13 a.m., a recess until 10:21 a.m.)

JUDGE VITTONE: Okay, let\'s go back on the record, please.

Good morning, Mr. Sapper.

MR. SAPPER: Good morning, Your Honor.

JUDGE VITTONE: Will you please introduce the panel?

MR. SAPPER: I\'ll be happy to, Your Honor.

Good morning, everyone. My name is Art Sapper. I\'m an attorney with the
law firm of McDermott, Will & Emory, and I\'m appearing here on behalf
of the National Association of Home Builders and its more than 235,000
members, who build about 80 percent of America\'s new homes.

Along with me today on the panel are Mr. Ray Rhodes, a small home
builder from Sanford, North Carolina; Mr. Mike Thibodeaux, a Safety
Consultant to home builders and a member of ACCSH; Mr. Mark Labriola,
who is the National Director of Safety for Centex Homes; and Mr. Paul
Emrath, the Assistant Vice President \-- I\'m sorry, the Assistant Staff
Vice President of Housing Policy Research at the NAHB. And, I will also
be answering questions here today.

Our first witness will be Mr. Rhodes. Mr. Labriola\'s written testimony
will be submitted this afternoon, Your Honor.

JUDGE VITTONE: All right.

MR. RHODES: Thank you, Your Honor, the panel, for hearing our comments.

As Mr. Sapper said, my name is Ray Rhodes, and I\'m a small home builder
from North Carolina, specializing in building custom homes, as well as
speculative building.

I\'ve been in the home building business now for about 25 years. I\'m
currently serving as the State President of the North Carolina Home
Builders Association. I\'m also currently a member of the Board of
Directors for the Builders Mutual Insurance Company, which specializes
in providing a complete line of insurance products exclusively to the
home building industry.

I appear before you to present the perspective of the residential
construction industry and the impacts the OSHA regulations have on the
small businesses in our industry.

We believe that OSHA\'s proposed rule for confined spaces in
construction is confusing, and the scope of the standard is too broad.

From a small builder\'s perspective, the standard is complicated and
difficult to understand. For example, the classification system in the
proposed confined space and construction rule is not clear, and it is
difficult to differentiate between the four classifications and
definitions for the confined spaces.

Many home builders and trade contractors are already puzzled by the
complexity and range of OSHA requirements imposed upon them. We believe
that OSHA has not fully realized the regulatory burden on these small
business owners and believe that it is important for OSHA to understand
the make up of these small companies and how they operate.

The majority of our industry is made up of small businesses. Over 80
percent of our members build fewer than 25 homes a year, and more than
half of that number build ten or less.

A typical NAHB member firm is truly a small business employing fewer
than ten employees, usually, none of whom are craft employees.

For small home builders and trade contractors in the home building
industry to navigate the proposed rule, and correctly classify the four
potentially different types of confined spaces, it would be difficult,
confusing and would eventually lead to non-compliance for the entire
standard.

Additionally, how OSHA uses the term contractor is a source of confusion
for those working in our home building industry. The general contractor
is often referred to as the contractor, as well as trade contractors are
sometimes called contractors.

Home builders are unsure if they are the contractor, controlling
contractor, or the host employer. For example, 1926.1204(b) requires
that the contractor determine if there are any confined spaces on a
construction site, and if these spaces are subject to any hazards. Most
home builders who have reviewed this section were under the impression,
but weren\'t sure, if they were required to comply even when they had no
employees entering the space. Long story short, most normal people just
don\'t understand the terms used in this way.

We also believe the scope of the proposed confined space in construction
is too broad. Again, there is confusion with the proposed standard about
what a confined space in home construction is.

For example, during the construction of single-family homes, these may
contain spaces that may fit within OSHA\'s definition of confined
spaces. Well, in home building some would think that this could cover
crawl spaces, attics, utility closets that contain water heaters or HVAC
equipment, cabinets, window wells, or areas under porches. However, I do
not believe these spaces are what OSHA had in mind. Indeed, such a
interpretation is clearly beyond any reasonable application of the
standard, and we believe OSHA should expressly exempt attics, crawl
spaces, basements, cabinets and similar areas in homes from the confined
space standard.

Another example of the excessive coverage of the proposed standard is in
the proposed definition of hazardous atmosphere. The proposed
construction definition drops the language now in the general industry
definition such as acute illness that limits the general industry
standard to hazards that can prevent escape or self-rescue. As a result,
the proposed construction definition would cover over exposures to
substances such as silica or asbestos that could not possibly prevent
escape.

There is no need to impose the many burdensome requirements in the
proposed standard, such as requirements for permits or rescue services,
on hazards that do not prevent escape. The standard is over broad.

Another term, serious physical harm, is so broad that it would cover a
stubbed pinky finger or toe, a condition that cannot justify the
burdensome array of confined space precautions.

Because of the way the confined space in construction is confusing and
the scope of the standard is too broad, we believe the standard needs to
be further simplified and made easier to understand. This could be done
by extending the general industry standard to the construction industry.
We believe that the OSHA general industry confined space standard is
simple to follow and provides for adequate protection for our workers,
because the requirements in the standard and safe work practices are
based on a two-prong classification system, whether confined space is
permit required or not.

Additionally, the trade contractors we hire who perform most of the
work, feel that the general industry standard is suitable and practical
enough to protect their workers.

In conclusion, I would like to reiterate that the residential
construction industry is faced with hundreds of pages of OSHA\'s rules
for construction. As a result, builders, like the vast majority of small
business owners, are overwhelmed by the complexity and breadth of the
OSHA requirements imposed upon them.

Small businesses must pass their compliance costs onto the home buyer,
of which we cannot do, or go out of business. Simply stated, compliance
with OSHA construction standards do not come cheap.

JUDGE VITTONE: Thank you, sir.

MR. SAPPER: Mr. Thibodeaux?

MR. THIBODEAUX: My name is Mike Thibodeaux. I\'m a Risk Management and
Safety Consultant for home builders and contractors. For 22 years, I was
the Executive Director for two home builders, U.S. Home and Lenar, and I
have been a member of the Advisory Committee on Construction Safety and
Health since 2003.

My testimony, primarily, concerns the multi-employer provisions in the
proposed confined spaces in construction standard. I believe these
provisions are unrealistic and infeasible when applied to home building,
and impose some costs that are not justified by their benefits.

There are at least two multi-employer provisions that should be changed.
Proposed Section 1204(d) says, \"When more than one employer will have
employees in the space at the same time, controlling contractor shall
coordinate entry operations with the contractors.\" Now, this provision
should be applicable only if the controlling contractor\'s employees
will be entering that space with the other employees.

Home builder managers are not on site at all times where they are
building. Many of their spaces \-- their construction sites may be miles
apart. The home builder may not even know when a contractor is on site,
much less know when one of his subs that he\'s hired to do this work is
entering a confined space.

A large majority of home builders today have very few of their employees
on site. They subcontract the work out to specialty contractors.

If you retain Section 1204(d) as proposed, you, basically, would have a
less qualified person overseeing the safety of the contractor employees
entering a confined space.

Section 1202(d) now says, \"The duties of the controlling contractors
under the standard include, but are not limited to, the duties specified
in Section 1204(a).\" The phrase, \"include, but are not limited to,\"
should be changed to \"are limited to,\" so it\'s specific, and tells
the contractor what he really needs to do.

Now, there are very few home builders, and especially small home
builders, that can supervise their contractors like OSHA\'s
multi-employer policy contemplates. They can\'t because, one, they
don\'t have the personnel on site, nor do they have the time to do so.
For a home builder to supervise contractors for OSHA violations would
stretch him even further and add significant cost to hire additional
managers. This would increase the price of a home, and would prohibit
many buyers from being able to purchase a home.

For the small home builder, these costs could be the difference between
profit, loss, or going out of business. Small home builders today are
stretched so thin they don\'t have time to police the sub\'s operations
for safety violations.

Many home builders have the following policy, if they see something
wrong on their site they are going to inform that particular contractor.
They do not specifically go looking for OSHA violations, they don\'t
have the personnel or the time to do so.

Now, OSHA has said that their multi-employer doctrine imposes only a
reasonable oversight for general contractors. Of course, reasonable has
many meanings and is so vague, even OSHA employees don\'t know what it
means, anymore than home builders do.

As I said earlier, the large majority of home building is done by
subcontractors. They are already under a duty to be responsible for
their own employees. They are specialized in first-hand knowledge on how
to protect their employees and run their operations safely better than
the general contractors. Imposing an additional layer of responsibility
on the home builder is wasteful, not effective, and could be dangerous.

Thanks.

JUDGE VITTONE: Thank you, Mr. Thibodeaux.

MR. SAPPER: Mr. Labriola.

MR. LABRIOLA: Good morning, panel. Thank you, it\'s a pleasure to be
here. My name is Mark Labriola. I\'m the National Director of Safety,
Centex Homes, the third largest home builder in the United States.

I\'m here to speak about the proposed rule from the perspective of a
large production home builder.

I urge OSHA to reconsider its proposal and rewrite the multi-employer
provisions. The biggest problem with them is that they do not square
with the homebuilding model. The new rule imposes unrealistic
responsibilities on the home builder. The language in proposed Section
1204(d) as currently drafted requires the home builder to coordinate
contractors entering a confined space. It is inappropriate to impose
this responsibility on the home builder, because of the way home
building sites are managed.

As you know, commercial construction typically occurs on a more fixed
and controlled space than residential construction. This allows for the
coordination of controlled management practices.

The structure of the home building industry, as relates to the
supervision of a contractor\'s conduct, is fundamentally different from
commercial construction. Home building sites may be spread over many
acres, if not square miles. Each home site may have as many as 60
different contractors. To effectively manage the process of mass
construction, the home builders field manager is spread among all the
home sites in the subdivision and cannot be at one particular home at
all times.

The field manager\'s responsibility is vastly different from a
commercial contractor\'s superintendent. The field managers are involved
in home buyer relations, customer service, and warranty. They may spend
much of their time at city government offices submitting permit
applications, or picking up certificates of occupancy.

When they are on a site, their time is spent only inspecting the
finished work for conformance with building specifications. They have
absolutely no time to do much of anything else, much less oversee how
safely a contractor is building the home.

Of course, if the field manager sees the OSHA violation, he is to inform
the contractor, but he has no time to go out of his way to police safety
compliance.

To act as a controlling contractor, responsible for coordinating entry
into a covered space, or policing contractors more generally would
require home builders to add additional personnel trained in managing
this process. Having to incur more in personnel expenses, both from the
contractors and the home builder, would drive up construction costs,
which will, ultimately, have to be passed on to the buyer. Because these
increased costs could be a determining factor in a family\'s ability to
afford a new home, it would repress the demand for new homes and further
impair the competitive structure of a badly stressed industry.

The next problem with the proposal is that our field managers are
typically generalists in construction. Field managers are typically not
as knowledgeable about the work of the specialized contractors as the
contractors are, which is why we hire them in the first place.

The rule, as drafted, would make the home builder, who is the less
qualified party, the one responsible for specialized safety measures for
the more qualified part.

The proposed rule would force contractors into the home builder\'s work
schedules, limiting their work day to the times the home builder\'s
field manager was present to do the coordination. Given the distance
that the home builder\'s field manager works from the actions of a
contractor\'s employees, the home builder\'s own employees are almost
never the ones who enter confined spaces, and contractors are likely to
enter a confined space when the home builder is not even on the job.
This double layer of uncertain obligations is not appropriate.

For these reasons, I urge OSHA to make 1204(d) apply only to a
contractor whose own employees are entering a confined space.

Another problem provision is proposed Section 1202(d) which states,
\"The duties of controlling contractors under the standard include, but
are not limited to, the duties specified in 1926.1204(a).\" I believe
the phrase, \"include, but are not limited to,\" is problematic because
it is open ended.

As I mentioned earlier, a large home builder\'s business model allows
for one field manager to manage the construction of many homes at one
time. Home builders are so leanly staffed that their field managers may
have no time to oversee their contractor\'s safety. They would have to
hire more managers, adding significantly to the cost of a home, driving
many beyond the reach of buyers, and impairing the competitive structure
of the industry, at a time when the industry is under great stress.

If OSHA is going to impose duties on home builders, I urge OSHA to
specify precisely in its regulations just what home builders are
expected to do. So, instead of including, but not limited, the
regulation should spell out the exact requirements. If the requirements
were specified with precision and were limited, home builders of all
sizes would understand the duty imposed on them to compliance and site
safety would increase to everyone\'s benefit.

So, in conclusion, although we all care about the safety of workers on
construction sites, we need to be sure that rules that are adopted
actually will make the intended impact. The confined spaces in
construction rule being proposed, at least in its application to home
builders, will not make a significant positive impact on safety, but
instead will create confusion, increase obligations, liabilities and
uncertainty.

The obligations and liabilities will raise the cost of construction and,
therefore, the cost of a home without a meaningful reduction in injuries
associated with work in confined spaces on residential projects.

If OSHA adopts new rules for confined spaces in construction they should
adopt rules that are clear, specific and directly target the parties who
have the ability to affect and control the workers whose safety is of
concern.

Thank you.

JUDGE VITTONE: Thank you, sir.

MR. SAPPER: Mr. Emrath.

MR. EMRATH: Thank you.

My name is Paul Emrath. I\'m Assistant Staff Vice President for Housing
Policy Research at NAHB. My job there is, I head a department of
economists who do statistical analysis and policy-related research, and
I\'d like to talk a little bit about the structure of the home building
industry and what the economic consequences are likely to be of the kind
of cost increases we\'ve just been considering.

So, the first point here is that home building tends to be an
unconcentrated, very competitive industry, with a few large players and
a much larger number of small firms.

In particular, I provided in my written testimony some tabulations from
the census of construction, and you see that of the businesses or the
establishments classified as single-family construction, a very large
percentage of them, over 60 percent, start fewer than five homes per
year, and that\'s of those who reported starting any. So, it\'s small,
it tends to be \-- if there is more than one person involved \-- kind of
a family operation. It\'s very typical for someone to run this business
out of maybe a little office in a basement, in a pick-up truck. To the
extent that other people are involved in the business, they may be
family members, spouses, or children.

In this context, a typical small home builder wears many hats, and his
attention is stretched very thin. He\'ll do construction,
administration, marketing, working with buyers, and also scheduling
subcontractors, and in that regard there are a very large number of
subcontractors used to build a typical home. And, there is a study that
I believe is the one that we are going to give to you, is that the one
we are going to get to them later? Yes.

So, that document says very often over 75 percent of all construction
costs are subcontracted, and that in the average home 26 different
subcontractors are used.

So, in this environment, where the typical small home builder is
stretched very thin, performing many tasks and supervising many
subcontractors, it\'s reasonable to suppose that they just don\'t have
resources to undertake any additional, you know, supervision of safety
and what the subcontractors employees are doing.

So then the question is, how can we go about trying to show how much
this cost would be. So, using the Bureau of Labor Statistics data, I
just looked at the average salaries of that type of employee that you\'d
have to go out and hire, and for a safety specialist it was a little
over \$60,000, for a manager in that industry it would be a little over
\$85,000.

But, just for an exercise to try to show what that would do to \-- you
know, to the price of a home and the impacts it would have, let\'s take
the lower of those, say, roughly, the \$60,000, and take one of these
many small home builders who is building fewer than five homes a year,
and spread that \$60,000 salary over four homes, and that would be about
\$15,000. Again, I\'ve got all the calculations in my written testimony,
you can look at those.

Once you adjust that \$15,000 for things like interest on construction
loans, and broker fees, and commissions, and a normal rate of profit,
that would add about \$18,000 to the price of the home. Again, those
calculations are documented in the written testimony.

Now, if you start with a median priced home, and increase its price by
\$18,000, you price, based on their incomes, about 3.7 million
households out of the market for that home, in that based on their
incomes and conventional underwriting standards they\'d be able to
afford the home before the price increase but not after.

So, it gets very complicated to try to say something very precise about
what pricing that many people out of the market will do, but, certainly,
given the magnitude of that impact, and the fact that costs are going up
that much, and, you know, 3.7 million of your potential buyers are
priced out if you are building a median priced home, you can understand
that I think that that would be a reasonable inference that that would
have a substantial economic consequence.

And so, losing that many buyers means you will either have to build
fewer homes or smaller homes, and if you are a small home builder, who
is building very few homes, you have very little room to absorb any
additional costs, and that\'s really going to threaten, you know, the
viability of your business.

Now, especially, at a time like this when the industry is already under
so much pressure, single family starts have fallen by more than 60
percent, and we\'ve lost half a million jobs in residential
construction. And so, in that environment, you know, many more of these
small businesses will be pressed right up against the threshold where
they can\'t absorb any additional costs.

And, to the extent that, you know, additional costs force some builders
out of business, particularly, the smaller businesses that will, you
know, threaten the competitive stability that normally prevails in the
industry.

So, thank you.

MR. SAPPER: Oh, the study that we are going to provide that documents
the number of subcontractors using a typical home, and how that number
has been increasing, was done by Gopal Ahluwalia, who is the Director of
our Survey Department.

MR. BIERSNER: Right, and I believe you have that study already, that\'s
already in the record.

JUDGE VITTONE: Anything further, gentlemen?

MR. SAPPER: Well, I would just like to add just a comment of my own. Our
problem with the proposed standard is that there are provisions in it
that differ from the General Industry Standard, and, particularly, the
multi-employer provision is different.

We read the multi-employer provision in the General Industry Standard as
exclusive. This one we don\'t, in fact, it says expressly it\'s not.

JUDGE VITTONE: Thank you for that.

May I see a show of hands?

Ms. Trahan?

MS. TRAHAN: Good morning, Chris Trahan, with the Building and
Construction Trades Department.

I had a couple questions. I think, Mr. Rhodes, you testified that it
would be preferable if the 1910.146 standard were extended to the
construction industry, instead of the rule as currently proposed.

Is that the position of NAHB as a whole, or \--

MR. SAPPER: It is. It\'s not because our current members are widely
complying with it, it\'s because it\'s just more workable, and because
the multi-employer provisions are exclusive, and clear, and limited.

MS. TRAHAN: All right. So, maybe I don\'t need to ask this, but then
along those lines some of the cost estimates you were just describing of
increased costs associated with this proposed rule, would they be in
excess of complying with the 1910.146 standard, specifically?

MR. SAPPER: Yes, because of the multi-employer provisions. The
multi-employer provisions in the 1910 standard are exclusive, these
provisions are open ended. Therefore, every provision in the proposed
standard constitutes an overlay of duties on the home builder.

MS. TRAHAN: So, would there be costs associated with extension of the
requirements of 1910.146 into the construction industry?

MR. SAPPER: Well, yes, there would be costs, but they wouldn\'t be as
onerous or as viability threatening as those of the proposed
construction standards.

MS. TRAHAN: And, is it the view of NAHB that those \-- I\'m sorry, it
sounds like I might be asking the same question, but it is just the
multi-employer issue, as you read it, that adds to those increased
costs, not the actual worker protection provisions?

MR. SAPPER: No. As was stated in the testimony of Mr. Rhodes, there are
definitions that are crucial, like, for example, the definition of
hazardous atmosphere, that is way too broad.

MS. TRAHAN: Thanks.

The other question I had, and I don\'t know if it \-- I\'m sure there\'s
not one answer, but the question of basements was raised in some of the
documents you provided, as well as your testimony presented here today,
and what phase during \-- if you want to give me like a range of
answers, dependent upon the type of home being constructed that will be
fine, too, but at what phase during the construction process are the
stairs leading to a basement typically installed?

MR. LABRIOLA: Typically, stairs may be installed prior to rough
mechanicals, which are the plumbing, HVAC and electrical installations.

MS. TRAHAN: Okay. So, I guess to follow up with that, what kind of work
would happen in the basement prior to the stairs being installed?

MR. LABRIOLA: Yes, prior to the \-- now, in the normal schedule, of
course, you\'d expect the stairs to be installed, but in construction
\-- in residential construction home building, sometimes you\'ll find
the contractor is willing to go in prior to the stairs to do that work,
to get a jump on their schedule, and things that won\'t interfere with
the critical path of the process you might find an HVAC contractor
installing the furnace, or plumbers bringing in their main line into the
basement at the time.

MS. TRAHAN: Okay. And, I think my last question is that the panel, at
least from my perspective, has presented their opinions and the
positions of NAHB as it relates in a situation surrounding the
construction of a typical single-family home, be it a median-priced home
or a big, nice home, or whatever. But, I just wanted to ask for
clarification on that. Perhaps, if you could explain the scope of
construction that your testimony refers to, is it, primarily, form the
perspective of single-family home builders?

MR. SAPPER: Yes.

MS. TRAHAN: Okay, thank you.

JUDGE VITTONE: Thank you, Ms. Trahan.

Anyone else?

OSHA panel?

MR. BIERSNER: Yes, Your Honor, we have some questions.

I want to make certain I understand your argument about multi-employer
situations. Your concern, specifically, is the provision in 1202(d)
says, \"The duties of the controlling contractor under the standard
include, but are not limited to, the duties specified in 1926.1204(a),\"
that\'s what you mean when you say it\'s open ended?

MR. SAPPER: Yes.

MR. BIERSNER: What makes \-- that provision was placed in there
principally to preserve OSHA\'s multi-employer \-- not to interfere with
multi \-- OSHA\'s multi-employer policy that is currently being
contested before the 8th Circuit.

What makes you think that that policy does not apply to 1910.146?

MR. SAPPER: Because we read the multi-employer provisions there as being
exclusive.

MR. BIERSNER: Because they don\'t contain that specific wording that I
just read, not limited to.

MR. SAPPER: Among other things, yes.

MR. BIERSNER: My impression, and I\'ll check this, is that 146 is
already enforced with the \-- under OSHA\'s general multi-employer
policy.

MR. SAPPER: Well, we\'ll take you to court about it.

MR. BIERSNER: Okay.

Moving on, in Mr. Rhodes\' testimony \-- I\'m assuming that for the
purposes of this hearing, that we are going to have already in the
record your testimony, you are not going to submit anymore except for
Mr. Labriola\'s.

MR. SAPPER: That\'s correct.

MR. BIERSNER: So, in Mr. Rhodes\' testimony \--

MR. SAPPER: This study that was referred to in our comments.

MR. BIERSNER: Yes, well, that\'s already in the record.

MR. SAPPER: No, there\'s an additional study.

MR. BIERSNER: Oh, an additional study.

MR. SAPPER: It\'s stated in the comments, but it\'s not actually
attached.

MR. BIERSNER: Okay.

MR. SAPPER: That was an oversight.

MR. BIERSNER: Now, you can submit that in the post hearing record,
that\'s fine.

And so, on page six of Mr. Rhodes\' testimony, you state that - you have
a concern about the PEL, and that being a hazardous \-- part of the
hazardous atmospheric definition.

Could you explain a little more specifically what your concern is about
including that component of the definition in that \-- under a hazardous
atmosphere definition?

MR. SAPPER: If you don\'t mind me speaking for Mr. Rhodes on this point.

MR. BIERSNER: That\'s fine.

MR. SAPPER: Well, essentially, it\'s stated on pages four and five of
the testimony, essentially, there are qualifications, rather stringent
qualifications, in the General Industry version of the same definition,
that as near as I can tell through perusing the standard, both eyeball
and computer searches are gone from the proposed construction standard.

So, I\'m talking about the qualifications, the language that says,
\"\... that may expose employees to the risk of death, incapacitation,
impairment of ability to self-rescue, injury, or acute illness,\" and
there\'s also a fine print note in the General Industry Standard to,
essentially, the same effect, that qualifies the use of PELs to
determine if a confined space is a permit space.

As near as I can tell, the proposed construction standard lacks those,
and, apparently, deliberately, and that would mean \-- as near as I can
tell, because the standard is so complex that, frankly, I\'m not even
sure that I am confident in my reading of it, but as near as I can tell
it means that if you have, let\'s say, silica in a confined space, and
that silica exposure would, over, let\'s say, an eight-hour period,
exceed a PEL, that that turns it into a permit space, as I understand
it, even though exposure to silica, as bad as it is, as dangerous as it
is, as serious as it is, imposes only chronic hazards.

So, a fellow could be over exposed to silica, to asbestos, and, in fact,
if he\'s over exposed to asbestos he may be the walking dead, but he can
walk out of that space. He can escape from the space. He won\'t feel the
bad effects for 20 or 30 years.

So, to impose all these expensive requirements on a space that employees
can easily walk out of, again, I\'m not minimizing the hazard, I\'m just
simply saying that it\'s not justified to impose this panoply of onerous
requirements to permit somebody to get pulled out of a space when he can
just walk out of it. You don\'t need rescue requirements. You don\'t
need permit requirements. You don\'t need a whole bunch of stuff that\'s
in this standard.

That\'s one of our criticisms. I think I\'ve answered your question.

MR. BIERSNER: Yes. Let me just summarize it.

Your concern is, number one, it doesn\'t address \-- by having that PEL
component, doesn\'t really address the sorts of emergency conditions
under which an entrant would have to, for emergency purposes, exit that
space. It doesn\'t impede in any way their exit from that space.

MR. SAPPER: Their ability to exit the space, that\'s correct.

MR. BIERSNER: Right.

And, number two is, by putting that in \-- by putting that component in
there, any time you have that type of a hazardous atmosphere in a
confined space, you automatically go into a permit required confined
space, which adds additional burden. Is that correct?

MR. SAPPER: That\'s my understanding of it.

MR. BIERSNER: Okay.

MR. SAPPER: If I\'m wrong, I\'d like to be told.

MR. BIERSNER: No, I mean, that\'s a good point.

MR. SAPPER: By the way, it\'s not that the standard \-- I\'m sorry,
it\'s not that the agency doesn\'t have standards that already apply to
that.

MR. BIERSNER: Right, that\'s what I mean.

MR. SAPPER: 1926.55, that\'s there to address chronic hazards.

MR. BIERSNER: Yes, I mean \--

MR. SAPPER: This is for a few.

MR. BIERSNER: \-- okay, we recognize that they would be protected, that
efforts would have to be made to protect those, regardless of what our
standard says, in a confined space that has those hazardous atmospheres,
measures would still have to be taken to protect those employees. We
recognize that.

The difference is, under our standard you would also automatically have
to classify that space as a permit required confined space in addition.
I mean, that\'s the problem, that\'s the major problem, correct?

MR. SAPPER: As I understand it, yes.

MR. BIERSNER: Now, Mr. Branch will address your idea about the ability
to exit the \-- do we have any provisions in the proposal that allow
them to exit the confined space rapidly, you know, if they have a \--

MR. SAPPER: Are you talking about in a permit space?

MR. BIERSNER: Yes.

MR. BRANCH: We do \--

MR. SAPPER: I understand if you include the PEL it\'s a permit space.

MR. BRANCH: We do have requirements, triggers for when an attendant, or
the entry supervisor, has to have everyone get out of the space. We do
have several provisions in which we specify those.

I\'m missing what \--

MR. SAPPER: I\'m missing your point, too.

Am I correct that if you exceed the PEL it\'s a permit space under this
proposal?

MR. BRANCH: Yes.

MR. SAPPER: So, if you exceed the PEL for a substance like silica, or
asbestos, that cannot affect the ability to leave the space.

MR. BRANCH: Well, when you are working with silica and asbestos, you
fall under another standard. We have standards to cover those particular
hazards.

MR. SAPPER: Correct, you don\'t need this one on top of it.

MR. BRANCH: Well, they do have to work on conjunction with each other,
because you do have confined space hazards that are not addressed in an
asbestos standard.

MR. SAPPER: I\'m saying you don\'t have any confined space hazard. If
you can walk out of the space, you don\'t have any justification for
imposing this panoply of requirements.

MR. BRANCH: You still have to meet the asbestos requirements, but there
are other provisions in the standard that address that.

MR. SAPPER: Which standard?

MR. BRANCH: In this proposed standard.

MR. SAPPER: Yes.

MR. BRANCH: That address specific confined spaces hazards that are not
addressed in the asbestos standard.

MR. SAPPER: There are none. In my hypothetical, there are none, yet the
standard still applies.

I mean \--

MR. BIERSNER: If the atmosphere is immediately dangerous to life or
health \--

MR. SAPPER: Where are you reading from, sir?

MR. BIERSNER: \-- I\'d have to \-- I mean, we do have a requirement, I
believe, that says if an IDLH atmosphere they have to exit the \-- it
would be a permit-required confined space.

MR. SAPPER: Can I ask what provision you are reading from, please?

MR. BIERSNER: I was just looking under IDLH, which specifies the kinds
of conditions that you were talking about, irreversible \--

MR. SAPPER: Can I ask the provision you are reading from?

MR. BIERSNER: That would be 1203, under the definitions for emergency
\-- immediately dangerous to life and health, IDLH.

MR. SAPPER: That\'s a definition.

MR. BIERSNER: Yes, but that\'s evoked, I believe, under the PRCS
provision.

MR. SAPPER: Where?

MR. BIERSNER: We\'ll find that.

MR. SAPPER: Okay.

By the way, I\'d also like to clarify an answer I gave before.

Part of our problem with this proposed standard is that it invokes \--
sorry, every provision in here constitutes an overlay of duties on the
home builder. So, if a subcontractor unexpectedly shows up on a job, and
for some reason a permit space is created by his work, we wouldn\'t know
about it, and yet this entire, every single provision here, not just the
multi-employer provisions, would kick in.

That constitutes an overlay of duties that this industry cannot bear,
that\'s our essential point.

JUDGE VITTONE: Any other questions from the OSHA panel?

MR. BRANCH: Yes.

Currently, under 1926.20(a) \--

MR. SAPPER: 20(a)?

MR. BRANCH: \-- 20(a), the employer is prohibited from exposing an
employee to an unsanitary or hazardous condition. You go to the next
provision, 1926.21, there is a whole list of hazards that the employer
has to train the employees to be aware of.

One of those we give a definition of \-- well, criteria for what is
considered a confined space, which is limited means of access, is not
designed for human occupancy, continuous human occupancy, and large
enough that you can bodily enter.

Under this provision, you\'d already be required to at least train your
employees of the hazards of a confined space, and you have to implement
applicable procedures.

My question is, how does this proposed provision add something that this
doesn\'t already require you to do?

MR. SAPPER: This applies only to an employer whose own employees are
entering the space. It doesn\'t impose multi-employer duties.

MR. BRANCH: You have no employees that enter in things that could meet
this definition?

MR. SAPPER: Rarely do our employees perform the work of construction
themselves. They are general contractors, and they are generally
contract administrators. They go into the houses to see that finished
work is completed according to contract specifications.

MR. BRANCH: So, you subcontract this work out.

MR. SAPPER: Almost entirely.

MR. BRANCH: How does \-- how do your subs know \--

MR. SAPPER: It\'s rare that a home builder will encounter a permit
space. It does happen, but it\'s rare.

And so, the home building industry has never seen this provision as
imposing multi-employer duties on the home builder.

MR. BRANCH: How do your subs know what kind of equipment to bring to a
site when you subcontract them to do work in some of these spaces?

MR. SAPPER: I\'m not sure that we ever actually hire subs to go into
spaces we perceive to be permit spaces, but I\'ll throw that open to Mr.
Thibodeaux.

MR. THIBODEAUX: Well, we hire these specialized contractors for their
expertise, and we have \-- and I say we, I\'m talking about the industry
in general \-- have a vetting process, a checklist on how long has the
contractor been in business, what kind of financial stability, what kind
of training programs, et cetera, et cetera, and if they meet that
criteria we hire them to do that particular specialized task on the
home.

And, we \-- because they are specialists, we already believe they
already know their business, not just how to build a house, or put in
the plumbing, or pour the basement, or put the stairs in, but all of the
other things that are associated with being an employer and training
their employees on how to do their job correctly and safely.

MR. BRANCH: For instance, and I can only reflect on my own personal
experiences, my childhood home had a crawl space underneath it, which I
wouldn\'t even let my dog go in. If I were going to hire, as a home
builder, someone to put in a new communication system, in which I had to
enter that space to install wiring, or antennas, or anything like that,
would it be normal industry procedures for me to give that sub
information that this is considered a confined space, or could be
considered a confined space?

MR. THIBODEAUX: No.

MR. BRANCH: No?

So, you would expect that sub to already know this, and you would hire
that sub knowing already that they have confined spaces experience.

MR. THIBODEAUX: Yes, that is correct.

MR. BRANCH: So, how did you know it was a confined space, in order to
make that determination?

MR. THIBODEAUX: You can look. You know, if it\'s enclosed, has limited
access, has limited ventilation, you have to make the determination
that, yes, that could be a confined space. So, the contractor will pick
it up real fast when you say crawl space.

MR. BRANCH: Okay, because it\'s very limited access, so you are already
doing what we are requiring you to do under 1204.

MR. THIBODEAUX: No, no, I didn\'t say that. The contractor can look at
that space and already know, hey, I\'ve got to take some other
precautions, or I should take some other precautions, or I should have a
ventilating fan in there, just as a precaution.

MR. BRANCH: But, before you hired that contractor, you\'ve already made
a determination that that space could be a confined space.

MR. THIBODEAUX: Not necessarily, no.

MR. SAPPER: Confined space or permit space, which do you mean?

MR. BRANCH: A confined space.

MR. SAPPER: Anybody can look at a crawl space.

MR. BRANCH: That\'s what we are requiring you to do.

MR. SAPPER: Look, contractors are hired, you know, the contract will say
go into a crawl space, it doesn\'t take a lot of intelligence for a
contractor to figure out that might be confined.

MR. BRANCH: You just told me that those spaces aren\'t considered \--
usually considered confined spaces.

MR. SAPPER: Permit spaces.

MR. BRANCH: That\'s permit space.

MR. SAPPER: Yes.

MR. BRANCH: Confined space.

MR. SAPPER: It might be considered confined spaces, I mean, it depends
on the crawl space, not intended for continuous human occupancy, who
knows.

MR. BRANCH: That\'s what this standard is requiring you to do, to at
least identify that you have confined spaces first.

MR. SAPPER: The home builder is not necessarily thinking along those
lines.

MR. BRANCH: But, you just said you were, that you hired your subs based
on their experience with confined spaces.

MR. SAPPER: Yes, if we perceive that there\'s a confined space, which is
not hard thinking, you know, if you\'ve got a crawl space.

It doesn\'t mean we think it\'s a permit space. That\'s something we\'d
expect the sub to pick up, using his own expertise.

MR. BRANCH: And, that\'s reasonable.

MR. SAPPER: That\'s the crucial difference.

Okay, well, thank you.

MR. BRANCH: But, how is the information that you exchanged to date,
based upon 1926.20 \--

MR. SAPPER: There\'s no information exchange except crawl space. Please
go into the crawl space and install the wiring for a sound system.

MR. BRANCH: \-- again, how, based upon your requirements, your safety
obligations under 1926.20(a), and 21(b)(6) \--

MR. SAPPER: You are assuming that those provisions impose multi-employer
duties. They don\'t.

JUDGE VITTONE: Let him finish the question, Mr. Sapper.

MR. SAPPER: I apologize, Your Honor.

MR. BRANCH: How are your safety obligations to exchange information with
the employee, with your employees, and anyone that is going to be
working in that space, how is that different from 1926.20(a) and
21(b)(6)?

MR. SAPPER: We don\'t understand the question.

MR. BRANCH: You are required to make employees aware of hazards of
confined spaces.

MR. SAPPER: Under 21(b)(6)(i) and (ii).

MR. BRANCH: Right.

MR. SAPPER: Our employees, not contractor employees.

MR. BRANCH: I\'m not going to debate you on that issue. Fair enough.

MR. SAPPER: That\'s the way the industry perceives it. You are asking
about the behavior of the industry.

MR. BRANCH: All I\'m trying to get at \--

MR. SAPPER: That\'s how the industry perceives it.

MR. BRANCH: \-- okay, is when you give that information \-- as Mr.
Thibodeaux explained to me, as you make that assessment that this space
could be a confined space, and that you\'ve hired a sub that has that
expertise, how is the information that you give that sub about the
space, so they can bring the right equipment, any different from what\'s
required in this standard?

MR. SAPPER: I think you totally misunderstood his testimony here today.

MR. THIBODEAUX: I think there\'s a slight misperception in regard to the
overall steps that take place in the process.

Contractors are hired, they are not given directions. As a matter of
fact, just about every home building plan I\'ve ever looked at does not
show a diagram where the plumbing is supposed to go, does not show a
diagram where the HVAC system is supposed to be run, or electrical is
run, none of that is dictated by the home builder.

Each trade makes their own determination as to where he needs to go, and
what is the best way to complete his task. Okay?

What we are talking with this phase, it\'s the home building process, we
are talking about during the rough mechanical stage, before the stairs
are in place, and our people don\'t go into those areas when they are in
that condition. The contractors are specialized and we trust are trained
in doing that work and understand all of the OSHA regulations that are
required of them to complete their duties.

Our people are not involved in that process. We do not tell them where
to go, how to do it, when \-- we might tell them when, we give them some
guidelines as far as schedules, so as not to disrupt the critical path
of the home, but if they want to go in early and after hours, it\'s an
open site, their prerogative. They take their own risks, and it\'s still
the employers of those employees responsibility to make sure they\'ve
assessed the situation, not the builder.

MR. BRANCH: Who, on that site, would have that type of control, as far
as, say, for instance, a sub would go in and the plumbing is inadequate,
how would you determine that the plumbing was inadequate?

MR. SAPPER: Okay. At each stage of a home building process, there are
inspection points. Typically, to go into the drywall stage a home must
pass a rough inspection. The city government has an inspector that
enters the site, once we make the call and say teh home is ready, based
on our contractor\'s informing us they\'ve completed their task, they go
in and inspect the site and they inspect the job and check whether or
not the equipment is done. Okay?

And then, if it passes, then we trust that their evaluation is sound and
then we continue with the process.

MR. BRANCH: So, you never send a person to check to see if it meets your
specs.

MR. SAPPER: Our business, the way we operate, we do not send our
employees to, you know, go into confined spaces or crawl up in the
attics, that\'s not their job. It\'s not how they are trained. It\'s not
their job description. They are field managers, they are scheduled to
check the works been completed, and that to the best of their knowledge
\-- I won\'t let people go on roofs because there\'s too much of a
hazard, and they are not trained to approach a roof. We don\'t train our
people to do that.

So, we rely on the city inspectors, basically, to give us the okay.

Now, can the field manager check and see, is there a faucet in every
sink? Yes, there\'s a faucet in every sink. But, to go any further than
that would be beyond the scope of his responsibility.

MR. BRANCH: How often do multiple contractors go in spaces that we are
discussing to do different trades?

MR. SAPPER: At the same time?

MR. BRANCH: Yes. Ever?

MR. THIBODEAUX: Well, we do not schedule contractors, typically, to be
over each other. There\'s a critical path, as I mentioned. If they
choose, because we do not control the site, they are an open site, if
they choose to work together that\'s certainly their prerogative. And,
if it happens and we\'re not there we have no control over that.

MR. BRANCH: Wouldn\'t you consider scheduling an element of
coordination?

MR. SAPPER: I think you are asking the witness to comment on the meaning
of a legal term. Do you mean coordination within the meaning of proposed
Standard 1204(d), is that what you are asking?

MR. BRANCH: Correct.

MR. SAPPER: I\'m going to ask the witness to not opine on legal
questions, but keep in mind that what he\'s talking about with regard to
scheduling, it\'s not telling a contractor to be there at a certain
time, it\'s just telling the contractor windows by which certain tasks
have to be done.

You have to put the plumbing in before the drywall can be put up.
That\'s what they refer to as the critical path. It\'s just a window, as
I think Mr. Labriola testified this before, they can come in any time
they want to, as long as they put the plumbing in before the drywall
goes up the builder doesn\'t much care.

And, they don\'t schedule that so tightly that they can predict who is
going to be in a certain space at a certain time, that\'s what you\'ve
got to understand.

MR. BRANCH: And, in that same conversation or exchange of information,
what would make it any different or add any burdens to you to exchange
any information about the hazards that are in the spaces?

MR. SAPPER: Well, wait a minute, you are assuming the builder would know
that there are hazards in the spaces.

MR. BRANCH: We do have a \-- we do have a requirement that the subs give
the controlling employer information about the space.

MR. SAPPER: Okay, so what\'s your question then?

MR. BRANCH: During that exchange of information of where you are
scheduling the subs to come in to do work, what added burdens would
there be to pass this information along with, like you said, that you
can\'t do painting work when the plumbing is going on and all that kind
of stuff, are there added burdens to the employer of passing this
information on, along with that other information?

MR. SAPPER: Do you know?

MR. THIBODEAUX: I think the requirement of the provision, I think the
scope is burdensome. I believe our people are \-- their job description
is not to inform contractors \-- we supply the contractor-specific
building plan, that\'s as far as we go. If they determine, by reading
those building plans, that they need to enter a confined space in order
to do their work, that\'s their responsibility.

Our people are not qualified even to, you know, give that direction.
They are not \-- they are not trained to give that direction.

MR. SAPPER: To add to that, the problem with your question is that it\'s
easily misunderstood. I think what you are really asking is, if you know
that there are hazards in a space would you pass that along.

MR. BRANCH: Right.

MR. SAPPER: I think in reality, if I can speak for the industry here, in
reality it\'s very, very rare that a home builder is going to know that
there are hazards in a space, very, very rare.

I can\'t imagine that a home builder, who is a conscientious human
being, is not going to tell the contractor that, but it\'s so rare that
the average field manager \-- it\'s just not going to be on his radar
screen.

But, if it is, I can\'t imagine he wouldn\'t tell them.

MR. BRANCH: Thank you for your comments.

JUDGE VITTONE: Anything else?

MR. BURT: I have some questions.

I am sorry, I\'m going to go over some of the same ground again, just
with a slightly different angle, that is, the agency\'s chief economist,
and I want to be sure that our cost estimates either respond to what
should be costs, or deal with them directly.

First, so let me repeat, as I understand it, home builders\' own
employees would very rarely enter confined spaces, is that correct?

MR. SAPPER: That\'s correct.

MR. BURT: With the subcontractors you have, do you know the extent to
which they are following something like the General Industry Standard,
when they enter \-- identifying and entering confined spaces?

MR. THIBODEAUX: Probably very rare.

MR. SAPPER: I spoke to the witnesses about this, and \-- yes, go ahead,
Mike.

MR. THIBODEAUX: Probably very rare, because as we said earlier, there
are very few confined spaces in home building that we are aware of. But,
I mean, they know to take precautions to protect their employees, as far
as ventilation, and if they are going to need respiratory equipment, et
cetera, they know that.

As far as, specifically, following the General Industry Standard, most
of them probably don\'t know of it, but they know how to do their job
safely and protect their employees.

MR. SAPPER: That\'s the impression I\'ve gotten also. I mean, they know
how to common sensically protect themselves, but they don\'t know
anything about 1910.146.

MR. BURT: So, let me ask, taking the General Industry definition of a
confined space, of a permit required confined space, and let me ignore
for the moment that PEL issue, I\'ll take it up in a minute, do you
think the typical home building project has permit required confined
spaces? And, if so, how many, how often there would be entry in a permit
required confined space in a typical home building project?

MR. THIBODEAUX: I could maybe give you some insight into that.

A home building project contains two phases. There\'s a land development
phase, where the infrastructure is put in to provide the sewers, the
water, any perimeter drain or storm water system, streets are paved, and
then the vertical construction begins.

The vertical construction consists of excavating a basement or a
footing, and then the home goes up. They tap in to the sewer, okay?

At the home building process, where the vertical construction is
underway, those employees, those contractors, are not trained in
entering confined spaces, because, typically, in the home building
vertical construction process there are no confined spaces identified by
those employers.

In the land development phase, when we are attaching sewers and putting
valves in, you know, down in that, those people are specialists in that
capacity, and they are \-- I would assume they might \-- they would be
trained in the those regulations.

But, on the vertical side there is none. There are no defined confined
spaces by the current standard that I\'m aware of.

MR. BURT: Thank you.

MR. SAPPER: I\'ve heard that there are a few in home building, but that
they are few and far between.

MR. BURT: Any further discussion you could add to your post hearing
comments on this issue would be very helpful.

Now, turning to the additional requirement, which I will \--

MR. SAPPER: Excuse me, I just meant to say permit spaces, instead of
confined spaces.

MR. BURT: Yes, right.

MR. SAPPER: Forgive me.

MR. BURT: Turning now to the definition of hazard, which in the proposed
construction standard includes chronic hazards.

Any idea how much actual difference this would make in the number of
permit required confined spaces you would have? In other words, how many
\-- you know, how often do you actually exceed, in a home building
project, the silica, or the asbestos, or the lead? Almost all those are
reconstruction issues.

MR. SAPPER: Yes, I\'d have to talk to the witnesses about that. I don\'t
think we have any information off the top of our heads, although, here
I\'ll speculate, if you don\'t mind, as a lawyer. I mean, there are all
kinds of coatings that are applied, glues that are used, they might
impose chronic hazards without causing acute hazards. I mean, I\'m just
speculating.

MR. BURT: No, I think \--

MR. SAPPER: But, I\'ll talk to the witnesses about that later.

MR. BURT: \-- I\'d be curious. Many of those do both, is the problem,
things like methylene chloride and paint strippers are both chronic and
acute hazards, so it gets complicated.

MR. SAPPER: Yes, it does.

MR. BURT: Now, your detailed cost estimates, basically, assume that you
are going to need a full-time safety professional for each home site,
or, not each home site, each builder, right?

MR. SAPPER: Yes.

MR. BURT: And, I want to be sure I understand how that connects to the
standard. Is that because, as I understand you, you feel that now you
would need to be more than just \-- that you would need to take
responsibility in each of these houses for classifying things as
confined spaces and hazards on your own \-- for the home builder
themselves, is that the origin of that cost and need?

MR. EMRATH: Yes, I mean, my basic assumption here is that they need to
supervise subcontractor employees to an extent that they don\'t do now,
and that they don\'t have the resources currently, so they need to go
out and hire someone else to do that. That\'s the growing assumption.

MR. BURT: Thank you, that covers my questions.

JUDGE VITTONE: Anything else?

MR. BIERSNER: Allison? No? No, questions? I believe we are finished,
Your Honor.

JUDGE VITTONE: Thank you very much.

Thank you, gentlemen, appreciate your time today.

It looks like we are going back underground here, Ms. Romans, National
Association of Sewer Services.

MS. ROMANS: Good morning, ladies and gentlemen. My name is Kathy Romans,
and I am the Health and Safety Chairperson for NASSCO, the National
Association of Sewer Service Companies.

NASSCO is a not-for-profit trade organization. We were founded in 1976,
with a purpose of establishing and developing industry standards and
guidelines to provide best practices information to our contractor
members, engineers, and the communities that we serve.

NASSCO\'s publications and guidelines are routinely referenced in
municipal sewer and drainage bid documents, and also referenced in,
virtually, all of the EPA consent orders currently in effect.

All of NASSCO\'s efforts are directed towards assuring the success of
the \-- sewer maintenance and rehabilitation industry. Our membership
includes more than 300 companies in North America, employing
approximately 35,000 people.

Our members currently perform maintenance and rehabilitation projects
that include closed circuit television inspection and cleaning of
pipelines, pipe joint grouting, and cured in place pipe lining, all
activities which are maintenance of the existing system.

Unlike some of the previous testimony shared regarding the turnover rate
of employees, NASSCO members, as a whole, experience much lower turnover
rates. Our member companies currently have, and continue to perform
their work safely and effectively, utilizing the General Industry
Standard for Confined Spaces.

In a recent preparation for this particular testimony, we surveyed our
membership, and we received about a 20 percent response rate, which is
pretty good as we all know from surveys for membership, as to the types
of manhole entries and numbers that were made by our membership, how
many of those manholes were actually descended, the numbers of employees
that our contractors have, and the numbers of both recordable and days
away from work incidents that were recorded.

What we discovered in our research was that we have a .01 percent rate
of recordable and days away from work recordable accidents. So, we feel
like that our membership is doing their job quite well.

While NASSCO does not oppose any type of a confined space standard for
the construction industry, our members are concerned that OSHA remain
consistent in the distinction between maintenance and construction, and
that the activities that our members are doing about 90 to 95 percent of
the time are maintenance related.

I would like to make a couple of clarifications to the way that I
interpret the proposed standard, in particular, to the continuous space,
permit required confined space, for your example you gave in all cases
as a sewer, that you referred to engulfment as being one of the hazards.

Engulfment would be a hazard in a very small percentage of sewer
manholes. The reason for that is that about 80 to 85 percent of all of
the sewer manholes have pipe diameters of eight and ten inches or
smaller entering them. It is, virtually, impossible for an engulfment to
occur from an eight-inch diameter pipe, particularly, when EPA
engineering standards require that those pipes be sized to flow at 50
percent of maximum capacity during high flow periods.

So, the opportunity to have someone exit the system is not in the term
of minutes, but in the terms of hours that it would take to fill up a
48-inch diameter manhole.

There are a couple of other points that I did want to make regarding \--
and I\'m going to have to sort of check my notes here \-- I apologize, I
have to read my own notes \-- NASSCO does, because of the number of
employees we have and the types of standards that we have in place, feel
that our membership is quite well prepared to do its job under the
current standards, the General Industry Standard. There may be some
provisions that cause us concern regarding the controlling contractor,
when something that might need to be \-- if we observed during
inspection that a line would be collapsed, and, typically, our
contractors would have to subcontract out the excavation of that
particular line and replacement of a line\'s segment, replace them into
the controlling contractor, basically, role at that particular time.

One other thing that NASSCO would like to extend to the committee is the
opportunity to see a pipeline rehabilitation project in process. We do a
great deal of work in the area, we work for organizations like D.C.
WASSA and WSSC, so there area number of projects that are ongoing at any
given time. We welcome to coordinate the opportunity for the committee
to see one of these particular projects.

And, I will allow for any questions that I can answer.

JUDGE VITTONE: Thank you very much, Ms. Romans.

Any questions from any of the participants?

Mr. Kennedy?

MR. KENNEDY: Ms. Romans, we met, and I understand you are a contractor,
too.

MS. ROMANS: Actually, I am a manufacturer, but have worked as a
contractor.

MR. KENNEDY: You\'ve worked as a contractor.

I want to ask you the same question I kind of asked the General Industry
guy. Is there a possibility that the controlling contractor could
collect information and miscommunicate it back to another contractor?
Have you seen that?

MS. ROMANS: I have not personally seen it, but I do see that it could be
a possibility, yes.

MR. KENNEDY: And, one other question is, I know you are \-- I\'m
familiar with your group, obviously, being in the same industry, you do
a lot of maintenance work, some construction.

MS. ROMANS: Yes.

MR. KENNEDY: But, you would have to, under the new standard, reclassify
every manhole, every situation you were going to get in, and would you
anticipate additional paperwork for contractors to be able to classify
CA, you know, continuous atmosphere confined space, or isolated hazard
confined spaces, before you could determine it was a non permit space,
would you anticipate additional paperwork under the new rule?

MS. ROMANS: Should the committee not remain consistent in their
definitions of maintenance and construction, and activities that we
consider currently as maintenance were classified as construction, yes,
I could see that there would be a great deal of additional paperwork
that would need to be performed.

MR. KENNEDY: And, the cost of rescue teams and everything, with the
number of confined spaces your people would go into, I would assume some
of them under this standard, the way it seems that OSHA wants to call
every sewer \-- active sewer a permit required confined space, would you
anticipate additional costs with rescue situations or rescue
requirements?

MS. ROMANS: With the rescue requirements as they are, or as they are
proposed, I could see that there would be additional costs,
particularly, for companies that might be operating multiple crews in
multiple parts of town. If you consider a company that\'s operating in a
large city, such as Washington, or Houston, New York, where your crews
may be operating hours away from each other if there\'s traffic, you
would need multiple rescue teams available. So, it would not be a
situation where either you need to have the availability of the local
police department, or have multiple crews available. And, it would be
quite costly, yes.

MR. KENNEDY: Your members, I assume, are like ours, they don\'t have
their own rescue teams, for the most part.

MS. ROMANS: Some of our members do have, I won\'t classify them as EMTs,
but they do have on their staff, as their safety professionals, there
are people there that are trained in basic first aid.

MR. KENNEDY: But, not \--

MS. ROMANS: But not \--

MR. KENNEDY: \-- confined space rescue, other than external rescue.

MS. ROMANS: \-- confined space rescue, no.

MR. KENNEDY: How about external rescue using tripods and things, they do
that?

MS. ROMANS: I can tell you this, from being on many, many job sites,
when operating in a sewer, especially, an active sewer, typically, our
membership follows the rules under the General Industry guidelines, and
they have the ability to make non entry retrievals.

MR. KENNEDY: And, are most of the spaces treated as permit or non permit
spaces? I know that OSHA is concerned about, we were talking about
plugging, and bypassing, and you indicated that eight inch lines are
mostly what we have go into the manholes, what about the bigger sewer
lines?

MS. ROMANS: It is common practice, and in a great deal \-- at a great
deal of the time bypassing is specified in the bid documents by the
municipality. So, if a municipality issues a project that\'s going to be
on a larger diameter line, there are not only the issues of making it
safe for the work to be performed, but also back ups are quite
expensive. I\'ve heard figures of an average home back up costing a
contractor \$10,000 or more in clean up, because of issues regarding the
sanitation and creation of mold. So, municipalities are very cognizant
of this, and they specify what diameters are to be bypassed and to what
extent they are to be bypassed.

So, either the bypass occurs at a manhole, several manholes upstream,
which could be anywhere from 700 to 1,000 feet upstream of the activity,
or it may occur at a pump station, where the entire pump station is
bypassed.

MR. KENNEDY: Can you control an atmosphere in a confined \-- in a sewer
environment, without having to plug a pipe?

MS. ROMANS: Yes, you can.

MR. KENNEDY: And, you can work in there safely?

MS. ROMANS: Yes, you can.

MR. KENNEDY: In your opinion. Okay. Thank you.

JUDGE VITTONE: Thank you, Mr. Kennedy.

Anyone else?

Ms. Trahan.

MS. TRAHAN: Hi, Chris Trahan, Building Construction Trades Department.

You indicated that for the most \-- as far as the assessment that you
guys have done that your contractors, or your employers, are operating
in compliance with 1910.146.

MS. ROMANS: That is correct.

MS. TRAHAN: Are they typically classifying the entries they do as
entries into permit required confined spaces?

MS. ROMANS: If the hazards cannot be isolated, yes.

MS. TRAHAN: Okay. You indicated, from what I understood, that 15 to 20
percent of the spaces have a potential for engulfment.

MS. ROMANS: No, what I said was, 80 percent of the spaces have no
potential for engulfment.

MS. TRAHAN: Yes, I reversed it, I thought you said 80 to 85 percent.

MS. ROMANS: It is 80 to 85 percent have no potential for engulfment,
because those are lines that are eight and ten inches in diameter.

There are then pipelines that go up segmented from there. The potential
for engulfment drops down into the single digit percentages quite
rapidly, because of the size of lines that enter the manholes.

MS. TRAHAN: In the 80 to 85 percent of the spaces that have no potential
for engulfment, based on the \-- you know, the maximum potential flow
rate into this occupied space, is there a potential for atmospheric
hazards in those spaces?

MS. ROMANS: There is potential for atmospheric hazards in those spaces,
and in the case of atmospheric hazards it is typical for our contractors
to use \-- currently use continuous monitoring and to ventilate the
spaces well.

MS. TRAHAN: Okay. So, do they operate in those spaces under a permit
program?

MS. ROMANS: If it\'s ventilated, under the current standard I believe
that if it is ventilated, and the atmosphere can be controlled, it is
not a permit required space.

MS. TRAHAN: So, they are doing what I call a C5 entry under 1946. Okay.

You testified about the conflict of bypassing. Is it \-- can you explain
that, and my assumption is that you are saying that bypassing that
function eliminates a hazard.

MS. ROMANS: Yes, it does. The function of bypassing is, rather large
pumps are typically used, they are going to be able to accommodate
whatever the flow rate is of the particular line, and they can go from
several gallons a minute to hundreds of gallons a day in size.

The pipe that is used is adequate to carry the maximum flow rate, plus a
safety factor. The safety factor is determined by the engineer, not by
the contractor.

The pipe is, typically, in a large diameter sewer, it is bypassed at the
pump station, which is actually the function of \-- all sanitary sewers
function under gravity, so it reaches a point and flows into a basin,
and then, literally, existing pumps there lift it up to the next level
and put it into the next level, so that it can continue down gravity to
the treatment plant.

In bypassing, at that point additional pumps and piping, that are,
typically, it\'s HDPE that\'s been laid on the street or in the yards,
the bypasses, and the flow enters into that piping and is carried down
past the point at which the work is being performed, usually by several
manholes downstream, and then is reentered \-- reenters into the
collection system at that point.

MS. TRAHAN: How is the \-- so, I understand the bypass, but how is the
actual \-- is it a mechanical disconnection that occurs after the point
of bypass between the lines?

MS. ROMANS: Once the line is bypassed, then you have \-- mechanical
disconnect is not the right term, if you can imagine a gate valve,
something that you have a flow coming in, and you block that flow off
with a valve, it\'s similar to that you are actually taking that flow
some other way and into another direction.

MS. TRAHAN: Okay. I guess what I\'m trying to get around in my mind is,
when you talk about the elimination of potential engulfment hazards, in
terms of 1910.146, that interpretation, and the way that OSHA has
approached it is double blocking the system, a disconnect on flowing is
considered elimination of those hazards, where closing a valve is not.

So, I\'m trying to figure out how the actual flow is diverted.

MS. ROMANS: The actual flow is diverted at the pump station. It does not
\-- it does not pump up to the pipe. It is not lifted to the pipe.
You\'d have to be in a sewer system to really \-- you would have to come
look.

MS. TRAHAN: Okay.

MS. ROMANS: You\'d have to come look.

MS. TRAHAN: Well, I appreciate that. Thank you for trying to educate me.

That\'s all.

MS. ROMANS: You are welcome.

JUDGE VITTONE: Thank you, Mr. Trahan.

Anybody else have questions for this witness?

OSHA?

MR. BIERSNER: Yes, Your Honor, we have some.

Back to bypass, the principal purpose currently of bypassing is to
prevent back ups in homes and business buildings and stuff like that,
correct?

MS. ROMANS: The principal purpose of bypass is to eliminate the flow so
that the maintenance work can \-- it\'s really a two purpose, it\'s to
eliminate the flow so that the maintenance work can take place. If you
are doing something like a cured in place lining, you don\'t want the
flow in there, it needs to be free of that flow to complete the
maintenance. So, it has two purposes. It prevents the back up, and it
allows the work to go on uninhibited.

MR. BIERSNER: Because in your testimony you say that principally \-- it
didn\'t even say principally, you said the only \-- you know, the only
purpose you defined was to prevent back ups.

MS. ROMANS: I apologize.

MR. BIERSNER: What about \-- I mean, so it allows the work to be done.
Now, if you had \-- for the purposes of this rule, if you had to divert
that flow from the work site for the safety of the employees, can you
work with the municipality to have it rerouted at the pumping station?

MS. ROMANS: No, bypass is the method to do that.

MR. BIERSNER: Bypass \--

MS. ROMANS: Typically \--

MR. BIERSNER: \-- yes, that\'s what I mean, bypass at the pumping
station.

MS. ROMANS: Yes, you can \-- yes, it can be done. And, typically,
that\'s the way the municipality words it.

MR. BIERSNER: Well, it would be their contractor. If you had to ask them
to do it, outside of the contract, or have it inserted in the contract
on behalf of the safety of your employees, would the municipality
cooperate with you to establish that bypass?

MS. ROMANS: The municipality would probably state to the contractor
that, you bid the work, it was your responsibility to look at the job
and determine what was necessary, and as long as it doesn\'t cost us
anymore money that will be fine.

MR. BIERSNER: Then how are you going to protect your employees from a
potential engulfment hazard?

MS. ROMANS: It\'s unlikely that a contractor would not perform the
necessary work.

As I mentioned, we have a very good safety record, and our employers do
a very good job of protecting their employees.

If it became necessary to do a bypass, and to coordinate with the
municipality and the engineer that was on the project, the contractors
would seek to do that and seek to obtain a change order to be able to do
such, yes.

MR. BIERSNER: I was also under the impression, from Mr. Kennedy\'s
earlier testimony, that there\'s ways for the contractor themselves to
use a tube or insert some sort of a tube into the \-- upstream, and then
bypass it themselves into another part of the sewer system. Is that
possible?

MS. ROMANS: It is possible to do that, but when you are bypassing,
because of the nature of the work, you want the homeowners that are in
the area, the business owners, to understand what\'s going on, so you
coordinate with the city when that is done.

It\'s not something that\'s just arbitrarily decided by a contractor to
do, it\'s coordinated with the city.

MR. BIERSNER: What about these \-- earlier in Mr. Kennedy\'s testimony
he mentioned these plugs or bladders that are used to isolate sewer
systems, principally, I guess, from atmospheric hazards, but I guess
they are also used for potential engulfment hazards. Can you comment on
those?

MS. ROMANS: In small diameter pipes, plugs can be used to prevent flow,
but you have to be cognizant of the fact, and the contractors have to be
cognizant of the fact, of what the flow rate is, what\'s behind it, so
that there are no back ups into homes, because as the home builders
mentioned, they are making connections, so you have a pipe that comes
from your home into the sewer system, and that particular pipe, called
your service connection or service line, could be a potential point for
back up.

So, plugging is used for relatively short periods of time, to be able to
perform short-term maintenance.

MR. BIERSNER: And, you are saying that they are principally used in
these smaller diameter pipes, eight and ten inch diameter pipes?

MS. ROMANS: Well, they are used in larger diameters, but for any length
of time they are used, primarily, in smaller diameters.

I guess what my point that I\'d like to make to the committee is,
anything with \-- in a larger diameter system, with the potential for
engulfment there, the contractor, in most cases, will bypass that line.

MR. BIERSNER: That\'s the preferred method of controlling the flow.

MS. ROMANS: It is the preferred method for controlling the flow.

MR. BIERSNER: Let\'s say in a 48-inch diameter pipe, that\'s probably
what you would do versus using a bladder or a plug.

MS. ROMANS: In a 48-inch diameter pipe, I personally would do it that
way, yes.

MR. BIERSNER: So, using a bladder or plug in a eight or ten inch, you
are just really \-- ten inch pipe \-- you are just really trying to
prevent the flow of that effluent down into the larger pipe. Would that
be a way of controlling those larger \-- flow into that larger pipe,
while you are trying to maintain \-- you know, doing work in that larger
pipe?

MS. ROMANS: If you are asking the question about \-- and let me see if I
understand your question correctly \-- you are thinking in terms of an
eight or ten inch pipe that has been flowing and emptying into a larger
diameter pipe, and would plugging be used to prevent the flow into a
larger diameter pipe if work were being performed in a larger diameter
pipe.

MR. BIERSNER: Correct.

MS. ROMANS: In some cases, it\'s very possible that it could be.

MR. BIERSNER: Okay. I think other members of the panel have questions.

MR. BRANCH: I have two questions.

One, do you have any experience with anyone who \-- any contractors that
use warning systems at all?

MS. ROMANS: The only warning system that I know that\'s been used is a
man downstream with a walkie talkie.

Early warning systems, as described in the proposed rule, are not
available for positioning in a sanitary sewer in removal.

MR. BRANCH: Okay. And, typically, how many eight to ten inch pipes would
go into one particular, like, place where a person would be working?

MS. ROMANS: Okay, going to a particular manhole, you can have two.
Typically, it\'s not more than that, there\'s no more than two. The
reason for that is that you don\'t want to create turbulence. In order
to have the system perform optimally, you want to limit turbulence as
much as possible. Turbulence slows down the flow and can create other
issues in the system.

So, typically, you may have two that come in, and they have channels
that they will flow in at the base of the manhole, and they\'ll come in
and flow into another pipe, so that you\'ll have two inlets and a single
outlet.

MR. BRANCH: It seems like you, typically, work in spaces that don\'t
require you to \-- do you work in permit spaces most of the time?

MS. ROMANS: It is \-- it\'s a little bit mixed. You know, for me
personally it\'s mixed. For our contractors, they do everything that
they can do to isolate the hazard, to make it a non permitted space.

MR. BRANCH: Okay. That\'s all I have.

MS. KRAMER: Approximately, what percentage of your work would you
consider construction and what would be considered general industry
work?

MS. ROMANS: Under the General Industry Standard, our contractors
consider, and we consider it to be about 95 percent of the work that we
do falls under the maintenance in the General Industry Standard.

MS. KRAMER: And, the other five would then fall under construction?

MS. ROMANS: The other five would then fall under construction, as
defined by this proposed standard \-- regulation.

MS. KRAMER: Great, thank you.

JUDGE VITTONE: Mr. Burt?

MR. BURT: I had a couple of questions on the cost estimate.

One, I need to apologize, is there further documentation beyond what\'s
in the letter from Mr. Gemora?

MS. ROMANS: There\'s not any currently. We will be happy to provide you
with some further documentation.

MR. BURT: I would appreciate that.

Let me ask some broad questions, and then point to some things that
would be helpful to us.

Is this \-- are your estimates, for example, of the number of entries
based on all entries you do, or is that 500,000 only entries that are
construction work, as you understand it?

MS. ROMANS: No, the information that was in Mr. Gemora\'s letter, those
are entries by our \-- that would be considered all entries, and we are
in the, you know, hundreds of thousands of entries per year, and
probably, like I said, less than 5 percent of those would be classified
construction.

MR. BURT: Okay. So, for most of those this standard \-- and do you see
anything in this standard that would change the definition of
construction and maintenance? I mean, that isn\'t what we thought we
did, but do you see anything that would change it here?

MS. ROMANS: Well, it is open to interpretation, that\'s why we have
concern that we maintain \-- you know, that there is a consistent
definition that\'s maintained for maintenance and construction.

MR. BURT: And, what kinds of things increase the costs, in your view?
This was the thing I most wanted to see, was tying the changes per \--
the cost to specific provisions.

MS. ROMANS: Well, for specific provisions under the proposed standard,
for a construction provision, adding a third person to every entry,
multiply that by the 500,000 entries a year.

MR. BURT: If you could just explain carefully what \-- tie the \$35 to
the regulation and the provisions of the regulation.

MS. ROMANS: Well, \$35 is sort of an arbitrary number that was derived
at by one single contractor, who took the provisions, reviewed the
documents, and then said, okay, if we \-- if it is not interpreted by
OSHA that maintenance is maintenance, and construction is construction,
and all of our activity falls under this standard, we are looking at an
additional person for every entry, at the approximate cost of a minimum
of \$35, and that\'s for the attendant person, or the look-out person,
that would be the early warning person.

MR. BURT: Thank you.

JUDGE VITTONE: Anything else?

MR. BIERSNER: I have one additional question.

Is there any such concept in your particular industry about \-- I\'m
assuming that a municipality would be considered, for the purposes of
1910.146, to be a host employer?

MS. ROMANS: That is correct.

MR. BIERSNER: Is there any \-- if this went into a construction \-- a
construction proposal, what \-- who would be the controlling contractor?

MS. ROMANS: That\'s a really good question.

MR. BIERSNER: Okay, and one little follow on. I\'m assuming \-- yes,
okay, most of your people are probably independent contractors who do
the work solely by themselves and don\'t hire a subcontractor, would
that be correct?

MS. ROMANS: For maintenance work that is correct.

MR. BIERSNER: Okay. And, what about construction?

MS. ROMANS: For the 5 percent of work that we do that would be
classified as construction, then they would be looking at hiring a
subcontractor, in most cases, with the exception of very few of our
largest contractors, they would subcontract that work out, because it
would require excavation and possibly trenching, which is not their area
of expertise, they would hire that \-- contract that out to another
contractor.

MR. BIERSNER: And, do they currently exchange information about the
potential confined space in the process of conducting this work?

MS. ROMANS: Yes, they do. Typically \-- typically, when that particular
occurrence happens, they are sharing information.

But, it is \-- I will say this, it is NASSCO\'s position that it should
be the responsibility of the person entering to evaluate the system
before entering, even if given information about the system.

MR. BIERSNER: Yes, and we would agree. I mean, the only reason that we
have information in this exchange is for the purpose of doing that
initial assessment. It still has to be done.

That\'s all the questions we have, Your Honor.

JUDGE VITTONE: Thank you very much.

Thank you for your time today, Ms. Romans.

MS. ROMANS: Thank you.

JUDGE VITTONE: We are going to break for lunch right now. Please be back
at 1:00, and we\'ll start at 1:00 sharp.

(Whereupon, the above-entitled matter was recessed at 11:58 a.m., to
reconvene at 1:00 p.m., this same day.)

A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N

12:58 p.m.

JUDGE VITTONE: All right, ladies and gentlemen, let\'s go back on the
record. I think we are in the 9th inning.

Mr. Yohay, would you introduce the panel?

MR. DANIEL: I will. Thank you.

My name is Art Daniel. I\'m with A.R. Daniel Construction Services from
Cedar Hill, Texas in the Dallas/Fort Worth area, and I\'m currently
serving as the Vice Chairman of the Municipal and Utility Division of
Associated General Contractors of America.

With me here today is Mr. Tommy Lee, and I\'ll let Tommy give a more
detailed introduction of himself in a moment, and our counsel, Stephen
Yohay, who is quite familiar to everyone, I think.

I\'ll start our comments today. We represent Associated General
Contractors of America, as I said, some 33,000 members.

I want to thank the Judge and OSHA for this opportunity to come and
express our concerns about the proposed standard. Let me tell you a
little bit about my company, and where we come from.

We are an underground construction firm, constructing water lines,
sanitary sewers, or wastewater lines, and stormwater lines, but our
specialty involves trenchless construction by methods of boring, auger
boring, or tunneling.

Safety is a personal priority for me, beyond any contractual
requirements I might have with the general contractor that hires me, or
beyond any regulatory requirements I might have, I have a personal
commitment to each one of our employees.

I am like many of our member firms in AGC, our annual volume is under
\$10 million. We have some 40 employees, and I not only know the names
of those 40 employees, but in many cases I know their family members\'
names, and that brings home the commitment to safety to that employee
even more.

I have a greater commitment to Consuelo Morales that her grandfather
come home at the end of the day than I do a contractual commitment to a
general contractor such as Tommy, or a regulatory requirement. That\'s
how heavy safety lays on my shoulders.

Fifteen years after the rules for confined space for general industry
has been adopted, OSHA has now published and is proposing a new standard
for confined space in construction. This new standard, if it\'s
finalized in its current version, will place contractors in confusing,
burdensome and complicated situations, and sometimes, perhaps, even
conflicting situations.

My ego has been restored a little bit today. I have read, and read, and
read this, and couldn\'t understand it in many ways, but I\'ve heard
attorneys say they couldn\'t understand it, I even this morning heard a
Texas Aggie say he couldn\'t understand it. And, being from Texas, I
certainly took great comfort in that.

But, many firms in construction who work around confined spaces have
already practiced the General Industry Standards, and use those as a
guideline, in addition to the areas of the construction standards that
refer to confined spaces.

There is a wealth of training materials out there on confined spaces
already. There\'s information available to anyone, readily available.
There\'s even compliance assistance on confined space.

All of those will have to \-- or will be invalidated and have to be
redone by the adoption of this rule, particularly, as it stands now.
Construction employers already use this existing General Industry
Standard, and they are aware of the effectiveness of it and the safety
benefits that it provides.

In reviewing the proposed standards, I found ample places where I\'m
going to have to do additional documentation, either directly or
implied. However, I couldn\'t really find any one single safety practice
that was introduced that we are not already doing, and I find the
development of these to be, as I said, confusing and potentially opening
up more safety problems.

I guess I\'d boil it down to being very direct, if ain\'t broke, don\'t
fix it, and I\'ll talk about that ain\'t broke in a moment.

One of our core concerns is around definitions, and yesterday the term
within or near, or the term in or near, they are both used in the
proposed standard, and they are used frequently, and there was some
discussion about it yesterday, and that\'s a great concern because of
the lack of a clear definition of what it means.

I\'ll use the, perhaps, absurd to illustrate the obvious. The way the
standard is written now, an asphalt contractor, laying down asphalt on a
street, or on a highway, when his lay down machine passes over a manhole
he is near a confined space, because that manhole is certainly a
confined space. And, when that occurs, he\'s going to have to classify
it and take all the other steps required, even though none of his
personnel are even going to as much as lift that manhole lid.

We need a clearer definition of within or near.

The four classifications are very confusing, could lead to some
misinterpretation. That\'s one of our biggest concerns. We believe if we
could incorporate the General Industry Confined Space that\'s going to
ensure more compliance and improve the safety of the workers.

I also believe that the definition of non sewer needs to be looked at.
As it is stated right now, as I said, we lay pipelines, we build tunnels
and bores for utilities of water and sewer and stormwater. If I\'m
laying a pipeline for a 36-inch sewer, or I am building a tunnel that\'s
going to house a 36-inch sewer, but I have not connected to any existing
sewers, or I have isolated any previous connection on this new
construction from existing sewers, am I in a confined space, and does
the exclusion for subpart P and subpart S still apply, or are we
considered sewer work. I believe that OSHA needs to define those two
areas as non sewer work.

Regarding controlling contractor, Tommy is going to have more to say
about that in a minute, but I want to speak from the viewpoint of a
subcontractor, because we are a specialty subcontractor called onto a
project to deliver something that\'s highly specialized and unusual to
many people. And, I believe the proposed standard is going to set up an
environment where over zealous controlling contractors will require more
and more from the smaller subcontractors, to make sure that controlling
contractor doesn\'t have any liability.

And, that\'s a cost I don\'t think has really been surveyed. I already,
right now without this proposed standard, I spend a lot of my time
educating safety professionals and loss control professionals from the
insurance companies of general contractors we work for that when we are
building tunnels we are under 1926.800, not under the General Industry
Confined Space. A lot of time has already been spent with that.

I also want to address exclusions and inclusions, although excavation
and underground construction are excluded from this proposed standard
for non sewer work, and as I said I\'d like that cleared up a little
bit, there seems to be some reaching back in and pulling them in for
some specialized type of work, such as welding in the preamble, that is
used as an example. That needs to be clarified.

Regarding training and record keeping, there seems to be very intense
requirements, or implied requirements, if it says documentation that\'s
a lot of requirement. If it says must show, to me that implies that we
are going to have to document, and as I\'ve looked at these, even though
I may be excluded from them as an excavator or an underground
contractor, doing that type of work, I may have to add a position to my
five to six-man crews to do that documentation. I may already have a
competent person in that crew, and we do have, but I might have to have
someone that\'s not only computer literate, but what I will term
documentation literate, and there\'s a difference between a competent
person and someone who is documentation literate, to show or to
demonstrate that we have met whatever the requirements may be.

And overall, there is a great burden in the training and record keeping
requirements.

I also want to address the cost impact. We believe that OSHA has
understated the cost of this proposed standard. Associated General
Contractors of America has hired an economist to do a study on what they
are, and in our written comments, in the Notice to Appeal of June 22nd,
an Executive Summary of that economist\'s early work has already been
introduced to you, and we will provide in the post hearing time his full
report.

But, his estimate is that the estimated cost will be about \$124.5
million versus \$74.8 million, and that\'s just simply an adjustment of
dollars from ten-year old dollar amounts and data that was used to come
up with OSHA\'s estimate.

And, Dr. Helvacian, in his report, he also looks at OSHA\'s cost benefit
of the proposed rule. Your estimates of fatal and non fatal injuries are
58 fatal and 39 non fatal over a nine-year period, according to your own
integrated management information system.

CONSAD, your contractor, CONSAD Research Corporation, assumes that that
injury data cannot be correct, and uses the number of fatalities to
estimate the number of injuries used for the benefit analysis, and pulls
out that injuries must be 100 times or 200 times that 39, and then
averages it out at 967 a year.

It seems to be a very arbitrary approach, based on merely assumptions,
and really isn\'t substantiated with any actual data. In fact, it
ignores OSHA\'s own numbers in its integrated management information
data source.

Regarding the ain\'t broke comment I said earlier, the fatality rate
used in OSHA\'s economic analysis of 6.5 deaths per year or per 1.6
million employees, translates to .4 deaths per hundred thousand workers.

Now, compare that to the 19 deaths per hundred thousand workers in the
construction industry in general, and around 6 deaths per hundred
thousand workers in the private industry. And furthermore, even given
the shortcomings, in our opinion, of CONSAD\'s numbers on injuries, if
we still use those numbers, which we believe are way out of line, way
higher, it\'s even lower than the rest of the construction industry, and
even private industry.

CONSAD\'s estimate equates to .10 per hundred thousand workers, compared
to 4.4 injuries per hundred thousand workers in construction, and 3.3
per hundred thousand workers in private industry.

Reviewing those two sets of numbers and OSHA\'s own estimates, it would
truly seem that the current system ain\'t broke, if you\'ll excuse my
colloquialism.

We have submitted, as I said, the Executive Summary. We are currently
surveying our membership and some of the other members of industry to
fully ascertain what the cost will be, and that will be included in the
full economic study that our economist will put together and submit for
the record in the post hearing process.

In reviewing we found studies that most fatalities associated with
construction in confined spaces were the result of contractors not
taking any measures, safety measures, at all.

OSHA\'s proposed rule is complicated, it\'s costly to implement, it\'s
confusing. Confusion on a job site too often can lead to accidents and
unsafe working areas. The proposed standard needs to be simplified and
in addition we believe that OSHA needs to make a more comprehensive and
specific study of the cost to comply with the standard.

We don\'t believe that the cost estimates stated in the preamble are
accurate. We appreciate this opportunity to comment on the proposed
rule, and on behalf of our members I thank you.

Tommy?

MR. LEE: Thank you.

I\'m Tommy Lee. I\'m Safety Director with WS Bellos Construction in
Houston, Texas. As you notice, we\'ll have you all talking like us
before we leave here today.

Our company is in their 94th year. In fact, our third generation just
had a heart attack in October and passed away, so we are kind of heading
to the fourth generation.

I remember the day I worked for Safety Fire and Rescue for Diamond
Shamrock, for four years, in a plant, and I remember going over to
interview for the job, and it was a Shell parking lot, because it\'s a
family owned company, and I\'m thinking, what in the heck am I doing.
And, I walk in, there\'s a picture of the \-- Monument that was built in
1934 with hand rails, and I thought, boy, I\'m in the right place.

And so, the company has always been \-- safety has been top priority. We
were the first to put safety nets up. We are a union contractor. We\'ve
always been union, and we are still union today, the only union
contractor in Houston.

We started drug testing. Being a union contractor in the mid \'80s, we
went out on a limb, we were the first OSHA partner in the southwest.
We\'ve been an OSHA partner for nine years.

I\'ve been on the Safety and Health Committee, actually, we helped get
the Director of Construction office going back with Mr. Culver and on
through the different ones.

So, safety is big with me, and there\'s a lot of regulations that are
needed. As we start getting into this standard, the confined space, it
made me start thinking about, we do a lot of oil company work, and we
are doing work, not at the plants, but at their office facilities,
because we build high-rise construction hotels, and institutions, and a
lot of hospital work.

And, 1910 is a part of the standard that sticks out to us. We have
worked hard to get our employees to understand the rules, and when you
start going in the standard, as we will go through, and the same thing
Art mentioned, there\'s a lot of confusion.

I\'ll never forget one statement that was made by the employees. When
OSHA passed the scaffolding standard, the ten-foot rule, and fall
protection was six foot, I\'ll never forget the employees coming to me
and saying, I\'m so confused, one is ten foot, one is six foot. So, we
went to a six-foot rule.

And, I came here on the still erection standard, and testified at a
hearing just like this, that we wanted six-foot fall protection on still
erections, and I heard all these arguments, and it really confused me of
what the purpose, you know, are we doing in safety.

So, we\'ve got to get rules that the workers understand. I think it was
what Dean said, with a fourth grade education, and it doesn\'t matter
what ethnic they are, folks have trouble understanding the rules, and
understanding what rules, and so as we try to educate them, and we do
safety meetings every week on our job, everybody attends, and we\'ll get
into that controlling contractor in a few minutes, it\'s the big issue
of understanding the rules.

And so, when we make rules, we need to make sure that we \-- the folks
that are in the trenches understand them. I mean, we\'ve got Stephen,
we\'ve got all the lawyers and everybody that can kind of figure out
what they are, but it\'s what makes it go and what makes our world safe.

And so, as we go through that, one of the things is on the confined
space, we support the 1910 standard. We feel like that it\'s worked. We
feel like we\'ve pulled it into the construction. I think more
contractors need to abide by teh rules, but in my 30 years of safety, as
you can tell my hair, I\'ve been in it that long, I\'ve only known of
one confined space fatality, and we\'ve never, or I\'ve never on our
jobs ever seen a confined space accident.

And so, I\'m not sure, in my view it\'s a rule that\'s confusing, or has
some confusing parts, and I go back to what Art said, if ain\'t broke
don\'t fix it. We are not saying don\'t have a confined space rule. We
are saying, hey, you\'ve got something that\'s working, and that we are
already using, bring it in.

So, that\'s the first point I want to make.

The second point was the definitions, going back to what Art said, the
within or near. You can imagine how many OSHA inspections I\'ve had in
the years, and we could put them all in this room and I\'d take them out
to the job, and I\'ll have 20 different inspections. Those type of words
worry me, because maybe we sit right here and we talk about it, and say
that ain\'t what we meant, but the reality is, out in the field that\'s
what we deal with. Well, here\'s what it says, within, so it\'s too
broad. It gives that subjective \-- too many opinions, and so that\'s
something we have to really concern ourselves, and that does concern
ourselves, is if a rule has opinions or somebody can make decisions,
then what I might think, or what the OSHA inspectors might think, what
the worker might think, what the lawyers might think, what the
subcontractors, I mean, all that comes into play, and when you put
people in there it does become an issue.

But, when it\'s black and white, you know, the six foot, you know, there
it is, it\'s not an issue.

So, we really are concerned with the definitions, even in teh training
requirements, when it talks about, you know, the employees who will be
in our area, in or near the area. You know, what is that? What is that
area? And, you can go do everything you need to do, and then all of a
sudden you end up with a citation or a lawsuit because somebody is going
to debate you on what that word means. So, that does concern us very
much on that.

I want to get into controlling contractor. I\'m probably going to be a
little bit different from what maybe you\'ve heard up here before. On
the Safety and Health Committee, I\'ve been one that, I was always the
outcast. There\'s a part of the controlling contractor that I believe
in, and everybody else saying, we don\'t want to be a controlling
contractor. I think the general runs the job, and I think he has a part
in it, and the illustration I always use is, we have 20 scaffolds on the
job, and here\'s our trailer, and none of them have hand rails. Well, I
think if that the general has the responsibility to say, get those hand
rails up.

Now, if you\'ve got 20 scaffolds on the job, they all have hand rails,
and the back side somebody takes a hand rail down, and OSHA comes in and
wants to give multi-site employee citation, I feel like that\'s a
problem, because you are doing the perfect thing, just because you
hadn\'t been back there that last few minutes, so you are making an
attempt.

On this standard, we hire, and you\'ve heard it before in the
testimonies up here, we hire experts, and in a building we have not a
lot of confined space, but there is, we do have them. We have them in
the mechanical part. We have them in the electrical vault. At lunch I
was telling them there\'s laws where you build electrical vaults, and at
that point you\'ve got to give the key to the electric company, you
can\'t go back in there, no matter what you do, you don\'t have any
control over it, you have to give that to the electrical supplier, which
would be, you know, the flag company.

We hire a mechanical guy, he brings in the big units. I don\'t know what
he has to do inside those units. We know we have to get the units, so we
hire that contractor, you put these units in, buy them and put them in,
but we don\'t know what he has to do in them.

So, all of a sudden, if we are sitting here saying, let me see your
confined space program, no, it\'s not good enough, or you need to do
this, I really don\'t know what all he has to do in it. I have some
experience, and I\'m sure Art has some experience, but we really don\'t
know what they have to do.

And so, they are the experts. Are we going to make sure that they have a
confined space program? Sure, we are going to do the prudent thing. But,
the way we interpret this is, they are going to tell me their confined
space program, and I\'m going to tell them that\'s not good enough, or,
you know, you need to do this, and I don\'t really know.

So, I think there\'s some work to be done here on this controlling
contractor, keeping the records, keeping the documentation, most of it
is in the proposal and what the architect gives to us, but some of the
work they have to do we do not know. After they do it, we might know
they have to do it, but we don\'t know what all they have to do, and
notifying, where it talks about notifying other contractors, we don\'t
have a situation \-- if we know of a confined space we are not going to
allow two companies in there at the same time. You know, you just \--
that usually doesn\'t work. One is the feasibility of being in there.

And so, on the controlling contractor, it\'s just \-- it makes it a
little more \-- the evaluation, and the coordination and control, you
know, you can do that to a sense, but then there\'s a sense you can\'t
do it, and so if you write it in there then when the inspectors or the
lawyers come out now all of a sudden it becomes this interpretation
again. You know, here\'s what the standard says, and so understand where
we are coming from on that.

Training and record keeping. Yes, we do training right now on the 1910,
but most of our training is, okay, we\'ve got to go into a sump pit.
It\'s rained, and the mud has gotten down there, we have to send people
in there to clean it. And, yes, we go get the tripods. We do two ways.
We either get the tripods, and then we do a lot of training to the men
right there, or we have to hire an outside firm to come in and provide
that training, because I might have all you all with me right now, and I
train you, next week we have another situation, you all have moved on to
another job because of the way the work happens you are not here
anymore.

So, how do I keep that training up, or how do I keep up the practice to
get people out of these confined space areas, and trying to use, you
know, the local fire departments, we contact them. We try to work them
hand in hand. I\'ve even had them argue with me. I\'ve showed them the
standard, and I\'ve even had a confined space, say, we get the job, you
are not doing it. I say the way the new proposal says, we have to do it.
We are taking over. We take charge of the job. So, you\'ve even got a
little bit of a change there from, you know, a larger fire department,
as we read what you all talked about was on the 911.

So, I\'m trying in my mind to get around, how do I get a crew, how do I
keep them trained, and how do I keep them practiced, and keep them
there. What if they leave all of a sudden the day before we do a
confined space? So, those are issues that you need to be thinking about
that creates these problems for us. We\'ve hired firms to come in on
specialty, what we would call the permit, or atmospheric testing, and we
do continuous monitoring. You know, first we try to get \-- make sure
that we don\'t even have that situation, and we can get air in there,
but we keep the monitoring going, and then we try to set up the rescue.

But, to be honest with you, I\'m nervous about it. You know, I\'m
nervous, because I always used to be fire and rescue, and it took years
and years to train, and a lot of practicing to do it right. And, you
know, you wonder, how they will be in the moment. You know, thank
goodness you\'ve never had to use them in the moment, but in the moment
how are they going to be?

And so, that\'s something we need to look at.

Cost impact, I\'ll let Art go over that. You know, I don\'t want to get
into cost impact, not that cost isn\'t important, but I\'m big right now
in changing the culture, getting folks to think about their families,
what impact it\'s going, and getting people to do the right thing, and
getting workers to do the right thing. Everything is always on, you
know, why don\'t you all do this, why don\'t you do that. We have to all
work together.

In conclusion, I\'d like to say, AGC and I do appreciate the opportunity
to comment to OSHA on the proposed rule, and we do urge that you
consider using the 1910 standard, something that we are familiar with,
we are using, more people need to use it, and put that in effect.

The potential liability that it creates for us, and the responsibility
that the controlling and the host contractor is just \-- it\'s unreal,
and I guess unless you are in it you don\'t feel it, and if it was more
simplified, if you did a proposed standard that\'s more simplified,
because, remember, we have to make \-- no matter what we do it doesn\'t
work if the workers don\'t get it. If the workers don\'t get it, and
understand it, nothing works. And, you know yourself, there\'s a lot of
standards out there that we\'ve \-- you know, that we\'ve had to deviate
from because the confusion. The scaffold, we went strictly six foot
because they were able to remember and understand that.

So, appreciate it, thank you very much.

JUDGE VITTONE: Thank you, Mr. Lee.

Any questions?

Oh, one back here?

MR. HOUVENER: Gerald Houvener, private citizen. I do hold certificates
as an industrial hygienist and as a safety professional.

You were talking about asphalt crews working on the road, and laying
down pavement, and there are manholes. Do you believe that there\'s a
responsibility for general safety awareness training of the Hazard
Communication Standard, which requires employers to warn their employees
of hazards that may exist on a job site, even though they may not be
required to actually handle or enter the hazardous area?

MR. DANIEL: Most contractors I know already train their employees, with
that specific example, they have nothing to do with that manhole, they
have nothing to do with that sewer line contractually, and they are
instructed to leave it alone.

They have certain procedures they have to follow regarding the lay down
of the asphalt surrounding the manhole, they follow that, and they are
told to stay away from it, which, yes, is the answer to your question.
They meet those standards.

MR. HOUVENER: So, that meets the intent of warning of hazards, confined
space hazards, in or near a work site, because they are not entering
them, they just have to be made aware of them.

MR. DANIEL: But, see, the proposed standard requires much more than just
notifying them of it. You have to set up certain procedures, and that\'s
the concern there.

MR. HOUVENER: One other question. It\'s been mentioned several times
about general contractor, this is for you, Mr. Lee, you talked about
subs are specialized, they have special skills, knowledge. Does that
also apply for hiring safety professionals specialized in confined
spaces or other hazards, to where that becomes part of your staff, as a
general contractor?

MR. LEE: The reason why I\'m pausing, I\'m trying to think, I don\'t
know if there\'s a safety professional that would be, you know, confined
space. The folks that you hire, you hope that they are going to
understand all the OSHA rules, and the way to make a safety program go,
which confined space would be a part of that, that process.

MR. HOUVENER: There are certifications for particular safety aspects of
the industry.

MR. LEE: Yes, there are. There\'s, yes, a 30-hour course and other type
certification, yes.

MR. HOUVENER: Thank you very much.

JUDGE VITTONE: Thank you.

Anyone else?

OSHA panel?

MR. BIERSNER: Yes, Your Honor, we have several questions. Let me confer
first, if I might, with other members of the panel.

I\'ll defer to Mr. Branch and Ms. Kramer for some questioning, and then
after they finish their questioning we have a number of questions that
we had about Mr. Shoaf\'s submitted testimony, and we\'d like to get to
those as well, and see if somebody there on their panel can answer
those. Okay?

Okay, Mr. Branch will ask the first question.

MR. BRANCH: For your operations, for your members that you are
representing, how many of these type spaces are permit spaces, or a
percentage, or just a rough guesstimate.

MR. DANIEL: I don\'t know that I could make \-- it would just purely be
guess, and I would prefer not to do that.

MR. LEE: I would say there\'s probably many.

MR. DANIEL: There\'s many, but as to how many are simply confined spaces
and how many are permit confined space, I don\'t have any data to
support an answer there.

MR. BRANCH: But, you do work within permit spaces, correct?

MR. DANIEL: Yes.

MR. BRANCH: And, you do have to \-- well, you\'ve chosen to comply with
the General Industry Standard in those situations, is that correct?

MR. DANIEL: That\'s correct.

MR. BRANCH: With regard to the rescue provisions \--

MR. YOHAY: Let me, just to clear up the record, are you asking that
question of these gentlemen with respect to their own companies or to
the thousands of members of AGC?

MR. BRANCH: Choose either way.

MR. DANIEL: Well, I answered that for myself. What we typically do is,
we, in our work, do not come along on too many confined spaces, and when
we do, again, we are a very small firm, as soon as our employees think
it might be a confined space I am notified of that, and I evaluate it,
as well as my superintendent, and then I bring in our outside safety
consultant to evaluate it and help us develop a plan, how we are going
to approach it, if it is a confined space.

And, he does rely a lot on the General Industry, that\'s how I
specifically address it.

MR. LEE: Then I will add to that, in a building, you are building a
building like this, you are probably looking at, potentially, a half a
dozen confined space possibilities throughout the building, and it
depends on what the spec for the building, and the way it is structured,
but that\'s what you are dealing with.

MR. BRANCH: And, how do you \-- typically, what methods do you,
typically, implement to meet the rescue provisions in the General
Industry Confined Space Standard, for permit?

MR. LEE: What we do is, we do the training. Well, two methods. One, we
might hire an outside firm to do \-- that\'s certified in training.
There\'s a couple firms that we\'ve found, when they are available. Or,
we would get the tripod, and we would do the training to the folks that
are right there, and the problem is, it\'s that immediate training
before you go down the hole, because of the turnover.

MR. BRANCH: So, that\'s, typically, non entry rescue?

MR. LEE: Yes.

MR. DANIEL: Yes, and I\'ll answer that from, again, my firm\'s
perspective, when we do \-- say, if we are going to make a tie in into
an existing manhole on a sewer project, because that\'s all we do is
underground, that\'s where confined spaces come up to us, we set up the
tripods, the full body harnesses to extract if anything comes up that
would require us to pull the injured worker out without entering the
area.

If he\'s injured in some way, say, a fall or something like that, we do
not believe our people are qualified, as Mr. Kennedy\'s story yesterday,
to judge whether he should be moved or not, and we rely on outside
professional rescue.

MR. LEE: But, when we do have a possibility that we might have to go in,
then we hire that outside firm that has the escape packs, and the full
garment, to be able to get to someone.

MR. BRANCH: With regard to the within or near conflicts that you have
with our standard, if we were to go back and adopt the General Industry
terms of affected employees, or an employee that\'s exposed to confined
spaces standards, with regard to those which of your employees would you
train or protect from confined space hazards, or warn, and all the other
requirements that are in the General Industry Standard for permit
spaces?

MR. DANIEL: I\'ll answer that by telling you a little bit the way we do
every project, where we are building a tunnel for any perspective line,
be it a water line, or a storm drain, or a sewer line.

We have established tunnel entry procedures, and one of the first things
in those tunnel entry procedures is to make sure it is not a confined
space, regardless of permit required or anything. One of the first
steps, we do that, we have all of our support systems are engineered by
a professional engineer to support all the loadings so that our
employees in that space are safe.

Add to that the ventilation, and the lighting that\'s needed, so that it
does \-- it is designed for human occupancy during the construction
period.

So, we don\'t \-- we fail that third test of a confined space, so to
speak, but even still, we continuously monitor as required under
1926.800 in the underground construction to make sure we do not become a
confined space, because of atmospheric changes, and that\'s done daily
and continuously throughout the day, and recorded multiple times, you
cannot continuously record that and document it, but at least twice a
day those readings are documented.

That\'s how we approach any project, and we have entry supervisors who
tell which people are going in, et cetera.

We apply the same type of thing if we are going to enter into a confined
space, and as I said, for us it\'s after we\'ve completed a tunnel and
we are doing a tie in to an existing manhole, or more than likely what
we are doing is, we are building a manhole over an existing sewer, and
the new sewer that we have built is tying in at that point.

And, when we do that, then we apply all the confined space regulations
in General Industry.

MR. BRANCH: Mr. Lee?

MR. LEE: Ours are more what you\'d call immediate, immediate area. When
you talk about the within, it\'s immediate area.

MR. BRANCH: Immediate.

So, for instance, in a situation where you described, like this
building, if I was working on the second floor doing lighting or
something like that, would you warn me or make me aware that there is a
confined space on the first floor?

MR. YOHAY: I\'m sorry, I need to have you clarify. When you say would
you, will you please explain what role are you anticipating \--

MR. BRANCH: The employer.

MR. YOHAY: \-- the employer of which contractor, what level?

MR. BRANCH: If he were an employer.

MR. YOHAY: Employer of who?

MR. BRANCH: Of me, and there\'s someone else from my company working on
the second floor with a confined space on the first floor.

MR. YOHAY: Are you saying he\'s \-- what role are you anticipating for
the hypothetical, he\'s the general contractor? He\'s a subcontractor?

MR. BRANCH: He\'s the employer.

MR. YOHAY: Of whom?

MR. BRANCH: Of me. I\'m his employee.

MR. YOHAY: Okay.

MR. BRANCH: One of my co-workers is working in a confined space on
another floor. I\'m doing lighting work. Would you \-- is it typical of
your work practices to train me to stay out of that space?

MR. LEE: No, because you have your job assignment on the second floor,
unless your job assignment would be to do the second floor and then go
down there.

Our company, we do JSAs every morning, so we are going through, so the
guy on the second floor would be concerned with what he\'s doing.

Now, if he\'s not supposed to go down there I wouldn\'t be telling him,
hey, we\'ve got confined space down in the basement or the first floor.

MR. BRANCH: Say, for instance, my \-- some of my equipment is down
there, it\'s anticipated that I might go near that space, for instance.

What I\'m trying to get at is, do you, typically, when people are
working in different areas on your construction site, and you are the
employer, do you train the other employees that are not particularly in
the space, not necessarily the attendant or the entry supervisor, do you
train all of those other folks to stay out of the space?

MR. LEE: Well, that\'s kind of a broad question. You know, over the
scope of a job they are going to be changing jobs, they are probably
going to know about it, but that\'s why you have the entry guy there.
He\'s to not allow anybody else to go in there. So, he\'s the one
trained, so if someone comes up they are not going in there because
he\'s doing his job.

MR. BRANCH: Okay, so you are relying on the signs and the entry
supervisor and the attendant to keep everyone else out.

MR. LEE: Yes.

MR. BRANCH: That\'s \--

MR. LEE: If they are not designed to go in.

MR. BRANCH: Okay. That\'s all for me.

MR. BIERSNER: Allison?

MS. KRAMER: We\'ve talked quite a bit about training. I was curious what
kind of records do you guys retrain on training?

MR. LEE: That\'s the hard spot. You know, we keep our safety meeting
training records, and trying to keep up with the training each
individual worker has. We keep our supervisors training, you know what
I\'m saying, the mid-level management training, but the workers, unless,
you know, you are going to get an air monitor which you\'ve got to keep
for 30 years or something of that nature, it\'s very hard, because we
just did a job where we averaged 200 workers, and we went through 1,000,
just to keep that 200, the turnover. You know, and so you can see, it\'s
so burdensome, how do you \-- you know, how do you keep it? We do keep
training records when they come to work and those type things, and
we\'ve got our computer completely full, but, you know, each thing you
just keep going more and more, so we try to do it, but it just gets to
the point that it\'s \-- you know, I need to be able to do my job, and
protect people, and trying to keep up with everybody\'s records.

MR. DANIEL: I\'ll answer that from a very small employer position, and I
think we are very fortunate. I sold a partnership in another company
about three and a half, four years ago, and formed my current company.
Of our 40 employees, 21 of them have worked for me for over five years,
going back in to my previous company, some as long as 28 years.

So, we are kind of unusual, we don\'t have a lot of turnover in our core
employee group.

What we try to do is, we \-- in our hiring procedures there\'s initial
training immediately, and we document that, and we have someone who
spends a great deal of time in clerically documenting what does everyone
go through, including all the training classes we hold, all the \-- even
the weekly tool box talk agendas that we provide them in English and
Spanish both, that\'s documented as well.

It\'s a lot of time put into that already, and some of those are not
required documentation, but as I read this standard, and look at any
other standard, I\'ve been in construction for 30 years or more, and I
have to \-- I look at it from the enforcement side. When that compliance
officer comes out, how is he going to look at what I\'m doing, and you
may say the employer must do this, and you don\'t \-- you may, in your
standard you may not say, document, you may not even say demonstrate,
but unless I can show that to that compliance officer there\'s a
potential I\'m going to be cited, because I haven\'t been able to show
that training.

MR. LEE: And, to kind of add to that, we do the same thing, but what we
run into, you know, kind of going on this standard, each rescue could be
different. You know what I\'m saying, each type of rescue, so, you know,
you\'ve documented and you\'ve put these guys through confined space
training, and talked about rescue, well,this job might not be, and I
wish we were like Art, but, you know, like when the rebar people are
there, when they finish they leave. You get a whole new set. So, that\'s
why, not only do you get the turnover, but it\'s the way the job goes is
how workers come in and out.

So, I mean, that\'s what scares me about the standard, it\'s like when I
was reading it, like, oh, my gosh, how am I going to keep these guys
trained, because, all right, I got me a good team, and all of a sudden I
go to have a practice and they are gone. I\'m like, oh, my, here we go
again.

So, and then you get several jobs, it gets very complicated, and so I
hope you all understand the point we are trying to make on that.

MS. KRAMER: Thank you.

MR. BIERSNER: Bob?

MR. BURT: Good afternoon.

I wanted to \-- I believe I understood you to be recommending the
General Industry Standard as a model for a construction standard. I want
to explore, does the proposed standard, as written, would it \-- do you
think it would result in more confined spaces than if you were under the
General Industry Standard?

MR. LEE: Let me kind of say this on this part, the one part I didn\'t
bring up, as a construction company sometimes we end up doing
maintenance. You know, you don\'t want to do maintenance, but you end up
doing maintenance.

So, and some of the companies we work for make us do 1910, is what I\'m
saying. So, if you had a construction standard, and then you\'ve got
1910, so to answer your question, yes, we would have more confined space
issues, because now we are following two parts \-- you know, two
standards.

And then I feel like just the 1926, the proposed standard, creates more
things that can be interpreted, maybe that isn\'t the way you all
intended it, but can be interpreted by the compliance officers that
that\'s a confined space, or by a sub, you know, that says, hey, I\'m
saying that\'s not confined space, and he says, yes, it is. You know,
then we get in that controlling contractor issue. Or, it could be the
general saying, I think that\'s a confined space, and saying it\'s not.

So, yes, I do think the overall answer is yes, it would.

MR. BURT: Let me be clear we are speaking of \-- that I\'m trying to see
your permit required confined spaces, so as to compare apples with
apples.

For that category, as it is under General Industry, what provisions do
you think create additional confined space situations?

MR. LEE: Actually, we were talking about that at lunch, and I don\'t
have the 1910 memorized. I have to go look at it, and I\'d have to have
it in front of me to be able to say, you know, I could give you, you
know, my thoughts, but I\'d like to go back to the standard on that.

MR. YOHAY: We could do an analysis in post hearing if you\'d like.

MR. BURT: No,that would be very helpful, because I think that\'s one of
the key issues we want to be sure we address here.

Given something is a confined space, a confined space that needs
regulatory action under either \-- under General Industry versus
construction proposed, I have heard you speak about additional
documentation requirements, about additional administrative and other
problems created by the controlling contractor in your view, about
additional training requirements. Are there any other substantive
requirements that you feel would cause you to do things differently
under the proposed construction standard as against the General Industry
Standard?

MR. DANIEL: I think we could probably compile a pretty extensive list
and submit to you post hearing on that.

MR. BURT: That would be very helpful.

MR. DANIEL: Of where we think it\'s going to be more than what is out
there already.

MR. BURT: Yes.

MR. YOHAY: Forgive me for switching hats, but you were given some of
that evidence yesterday in some of the Power Points that were produced
by other commenters.

MR. BURT: Yes, I\'m asking that of everyone. I\'d like as much input as
we can get on it, and realizing that different industries have different
situations that they would be particularly attentive to.

Now, turning to some of the estimates, you refer to the fact that the
economic analysis has some dated data in it, and, certainly, we will be
updating it in the course of finalizing the rule.

Let me ask, do you think there is any trend toward increased, what we
would call, baseline compliance, better practice over the last ten
years? In other words, you want us to \-- you are suggesting, in your
economic analysis, that what\'s needed is to just say there\'s more
activity, therefore, there\'s more cost. Has there been any improvement
in what people are already doing?

MR. YOHAY: Before we accept that assumption, remember they said that
they\'ve engaged an expert to do the economic analysis, so let\'s not
try to over simplify what they say. It will say what it says.

Okay, so continue on.

MR. DANIEL: Just, I would say just from what I\'ve read, the overall,
not just confined space, but construction industry growth rate, even
though the growth of construction in the last ten years has been high,
the rate of injuries has not mirrored that. It\'s actually flattened
out.

I don\'t know if that answers your question.

MR. LEE: I actually think the education, the awareness of the workers of
the confined space, is much higher today than it was ten or 15 years
ago.

So, that kind of goes back to that something is working right, and
let\'s don\'t muddy the water. You know, that\'s kind of where we are at
on that.

Don\'t you agree with that, Art?

MR. DANIEL: Yes, I think there\'s some very simple things that make it
easier to educate your employees now.

We have a high number of our employees are Hispanic, English is their
second language. Some of them are not very bilingual at all. So, as Mr.
Bernal said this morning, all of our safety training is in English and
Spanish.

Ten years ago, I couldn\'t submit on line to a company to do that
translation for a mere small amount. I would have had to pay hundreds
and thousands of dollars to get that done. That is available now.

Tools like that are helping now.

MR. BIERSNER: Bob, did you want to ask \-- wasn\'t your question, what
is their baseline of compliance? Has it raised over ten years? I mean,
are they more in compliance?

MR. BURT: Yes, that was what I was asking.

MR. BIERSNER: When they don\'t have to be. I mean, on construction work
in confined spaces, are there more employers now in compliance than
there were ten years ago?

MR. BURT: Yes.

MR. LEE: I would answer that, from my opinion of my observation, I
can\'t answer for the whole association, but I would say yes, and also
the level of AGC Safety and Health Committee, the numbers have grown,
and that\'s been something that is discussed, sharing of thoughts and
ideals, and so I would have to say, I\'ve seen it increased to the point
\-- yes.

MR. BIERSNER: To the point?

MR. LEE: Well \--

MR. BIERSNER: My next question would be, from what percentage do you
think, generally, just a rough estimate, ten years ago were in
compliance that didn\'t have to be, versus what percentage might be now?

MR. LEE: I can\'t give a percentage on that.

MR. BIERSNER: Okay.

MR. LEE: You know \--

MR. BIERSNER: I mean, just a rough estimate of any kind?

MR. YOHAY: We are not going to answer that question, because there\'s no
way these folks could come up with any kind of a meaningful number on
behalf the American construction industry.

MR. BIERSNER: Is there any way that you can provide an analysis of that,
or a survey data that you could submit to the record?

MR. DANIEL: I don\'t think, to begin with, to come up with an analysis
of what the increased percentage of who is in compliance, you\'ve got to
have the original baseline of who wasn\'t a decade ago, and we don\'t
have that.

MR. BIERSNER: Okay.

MR. DANIEL: So, I don\'t think we could come up with that.

MR. BIERSNER: But, even what level might be in compliance now would be
helpful.

MR. LEE: If we have to send a survey asking who is not in compliance,
who is going to write back and say that.

MR. DANIEL: Well, Tommy is absolutely right, but I mentioned earlier, we
are surveying our members now, and that survey has some questions on it
that don\'t directly ask are you in compliance or not, but they ask a
lot of questions that will probably come close to giving us an answer
about our membership, and the respondents to the \-- specifically, the
respondents to the survey.

MR. BIERSNER: Yes, but this is understood, this is a situation which
they do not currently have to comply with 146, and we\'d like to know,
even though they don\'t have to, how many might do it.

MR. DANIEL: I don\'t think we could really speculate. I could give you
an answer that every contractor I work for, as a subcontractor, from my
appearance they appear to be in compliance, because I won\'t work for
them again if they are not.

I walked off more than one job because the whole safety environment
wasn\'t where I thought it would be. But, most of those that we work for
now are very much in compliance, I would think. But, that\'s not
scientific at all.

MR. LEE: And, I think your comment is interesting, because you are
saying that they don\'t have to be in compliance, but you go ask the
compliance officers and they are going to tell you, you are supposed to
be following 1910. I mean, that\'s what we are seeing in the real world.

MR. BURT: That covers my questions.

MR. BIERSNER: Okay, Mr. Shoaf, in his comments, mentioned that what we
should do is adopt, in the final standard, adopt 1910.146, and add an
appendix that would cover continuous system permit required confined
spaces. That was on page \-- on the first page of his testimony.

Would he recommend, or would any of you recommend, in fact, if that came
to pass that the current \-- that the proposed requirements for
continuous system permit required \-- confined spaces be incorporated
into an appendix as they currently exist?

MR. DANIEL: I\'m not, I wasn\'t party to Mr. Shoaf\'s testimony, nor the
group that helped him come up with those opinions. So, I can\'t really
give you an answer whether that\'s valid or not.

Tom?

MR. LEE: I\'m in the same boat. You know, I\'d have to just review that
and know where they came up \-- you know, where that information came,
and see if it fit.

MR. BIERSNER: If you would, you might have Mr. Shoaf submit a
clarification in the post hearing comments.

Again, on the last page of his testimony, he made a recommendation that
only continuous air monitoring be used. And, I was wondering why he made
that recommendation.

MR. DANIEL: Again, I don\'t know why he made that specific
recommendation. I know that is what my firm, we practice, is continuous
monitoring. For instance, talking about the non sewer definition, if we
have connected a pipeline to a sewer line we isolate by redundant plugs,
and then at our closest location to our manpower we continuously monitor
that, to make sure that it remains isolated.

But, I\'m not sure where his recommendation for continuous monitoring
came from.

MR. BIERSNER: Mr. Lee?

MR. LEE: I\'m the same way, I\'m not sure where he came in, but from a
personal standpoint in our company, I want the continuous monitoring
going because you\'ve got your alarms set ahead of time, and so if the
alarms go out you are not having to do a rescue, he\'s getting out, or
she\'s getting out of the hole.

So, you know, my opinion, continuous monitoring is a good thing.

MR. BIERSNER: Practically speaking, and I don\'t think construction work
would typically lend itself to periodic monitoring, it\'s a continuously
changing atmosphere based on the type of work that\'s being done in a
confined space or other conditions, and they would have to base, I\'m
assuming, we say in the standard they can only use it if they
demonstrate that it\'s at least as effective as continuous air
monitoring.

MR. YOHAY: I have a question about that, if I may.

MR. BIERSNER: Right.

MR. YOHAY: In the practical world, to whom does the employer make that
demonstration and when?

MR. BIERSNER: We put it in there, basically, that if they are inspected
they would have to make the demonstration to the compliance officer.

MR. YOHAY: If inspected.

MR. BIERSNER: If inspected.

MR. YOHAY: What do they do before the inspection? Take their chances?
I\'m serious about that.

MR. BIERSNER: Yes.

MR. YOHAY: I see that language in this standard and others, and I\'ve
never understood that idea.

MR. BIERSNER: Right.

MR. YOHAY: That the employer has to make a demonstration. I\'ve always
wondered to whom and when, and I think you are finally giving an honest
answer, if you get inspected you better be able to defend yourself.

MR. BIERSNER: You better be able to defend yourself.

But, in this \--

MR. YOHAY: Do you think that\'s an enforceable requirement?

MR. BIERSNER: It is when the compliance officer says so.

MR. YOHAY: That\'s also an honest answer, but \--

MR. BIERSNER: But, I think it\'s \-- you know, for all practical
purposes, it would be extremely rare.

MR. YOHAY: I think this language ought to be revisited.

MR. BIERSNER: Yes. I think they are extremely rare in the construction
environment for them that they\'ll even make that demonstration, because
of the constantly changing conditions, and the idea that they would have
to have a good body \-- a valid body of historical monitoring data to
substantiate that what they are doing is effective.

Are there any other questions?

MS. KRAMER: I actually have one final question for you guys.

It\'s also having to do with Mr. Shoaf\'s testimony, and I understand
that you can\'t comment on his opinions, but he did mention on page four
of his comments that the proposed standard doesn\'t specify a time or
distance requirement for early warning systems.

I was wondering if you guys had any sort of recommendations for a time
or distance requirement.

MR. DANIEL: First off, Mr. Shoaf and Michelle Myers, the Director of
Safety for AGC, are in Boise, Idaho, at the Safety Committee Conference
right now, and that\'s why they are not here with these two conflicting
dates. But, no, I can\'t answer that.

MR. BIERSNER: Again, if they could provide clarification in the post
hearing comments it would be appreciated.

Your Honor, I think we are finished, or do you have one, Bob?

MR. BURT: I just wanted to emphasize, we talked about certain things,
like additional confined spaces and places where the standard would
require more. My interest in this is not legal or theoretical, but how
often, how many times do these things happen? So, it\'s not just a side
by side showing this is different, but is it important that it\'s
different, how often is it important? That\'s what I\'ve been really
hoping for there.

Thank you.

MR. YOHAY: I just have one more comment.

First, let me assure Mr. Lee that the panel is linguistically balanced,
since I started life in the Bronx, okay? You need that fear of, you
know, over powering these folks.

Second, I do want to make clear that AGC\'s position, notwithstanding
the admirable things that Mr. Lee said about his views \-- his
company\'s views about the role of the controlling or host employer, and
that is that it\'s one thing to do the type of things he talked about
from a safety and health point of view. It\'s quite another to be
subject to citation if you happen to get it wrong.

And, AGC\'s position, just so that it\'s clear, is that there is no
basis under the Occupational Safety and Health that\'s a multi-employer
responsibility, and that 1910.12 still is the controlling authority with
regard to the obligation of the contractor, who does not have an
employee exposed to hazards.

Stated simply, the position that\'s reflected in the amicus brief, that
some of the contractors filed on behalf of the agency and others.

JUDGE VITTONE: Thank you, Mr. Yohay.

Anything else?

MR. BIERSNER: Your Honor, during the \-- just before we start \-- they
can go ahead and be dismissed.

MR. YOHAY: We have some testimony to give you.

MR. BIERSNER: Oh, you do.

MR. YOHAY: It was revised.

MR. BIERSNER: Is this in addition to what we already had in the record?

MR. YOHAY: Yes, and we have several copies for you.

MR. BIERSNER: This is different than the testimony already submitted
earlier?

MR. YOHAY: We\'ll have it for you in a second. This is Mr. Lee\'s
testimony.

MR. BIERSNER: Anyway, Your Honor, just before we reconvened Mr.
Sapper\'s assistant handed me the testimony by Mr. Mark Labriola that he
gave this morning that he said he would provide to us this afternoon.
It\'s entitled, \"Confined Spaces In Construction Proposed Rule.\" I
would request that we admit this to the hearing record as Exhibit 0206.

JUDGE VITTONE: It will be made a part of the record.

(Whereupon, the document was marked for identification as Exhibit No.
0206, and was received in evidence.)

JUDGE VITTONE: Thank you, Mr. Lee and Mr. Daniel, appreciate your time
today.

Mr. Shaffer.

When is the transcript going to be ready, or is it available today?

MR. BIERSNER: I don\'t \-- normally, they are in about two weeks or so
we should have the transcripts.

If the transcriber could let me know that information, when the
transcripts might be available, I\'d appreciate it.

JUDGE VITTONE: Okay, Mr. Shaffer, you may begin.

MR. SHAFFER: Thank you, Your Honor, and good afternoon, everyone. My
name is Craig Shaffer, with Safety Works. I\'m from the Harrisburg,
Pennsylvania area. And, to my right is Bob Hirsch, is our Associated
Builders and Contractors Director of Legal and Regulatory Affairs.

I\'d like to begin with a brief statement here that I\'d like to present
with you folks, and then certainly I\'d be happy to entertain any
questions that you folks may have.

On behalf of the Associated Builders and Contractors, ABC, I\'d like to
thank OSHA for holding the hearing today and for the opportunity to
testify on behalf of ABC regarding the proposed rule, and ABC\'s
concerns.

My name is Craig Shaffer. I am President of Safety Works, Inc., which
provides safety management consulting and training services to
construction employers throughout the country. I\'m a certified safety
professional with over 16 years of occupational safety and health
experience, in both construction and manufacturing industries.

I serve on ABC\'s National Safety, Health and Environmental Committee,
and have been involved directly with the review of this proposed rule,
and development of the written comments that ABC has submitted to the
docket.

ABC is a national construction industry trade association, representing
nearly 25,000 individual employers in the commercial and industrial
construction industry.

ABC represents both general contractors and subcontractors throughout
the United States with over 80 percent of our membership being small
businesses.

The majority of ABC\'s member companies are considered merit shop
companies, and our diverse membership is bound by a shared commitment to
the construction industry\'s merit shop philosophy, based on the
principle of full and open competition, without regard to labor
affiliation.

The purpose of my testimony today is to highlight and underline the
principal concern that ABC has with the rule being proposed. And, as I
noted previously, ABC has submitted extensive comments to the docket in
February.

ABC commends OSHA on its efforts to promote confined space safety in the
construction industry, and we certainly do not oppose having a confined
space standard that is applicable to construction. However, we strongly
question the need for the rule that OSHA has proposed.

Simply put, ABC does not believe that OSHA has justified the need for
this rule. Neither do we believe that OSHA has demonstrated that the
general industry confined space standard is not working in construction
and, therefore, needs to be replaced.

ABC believes that in the absence of such evidence in the record OSHA\'s
adoption of the proposed rule would be arbitrary and capricious.

While it can be argued that for a few small clarifications and revisions
to the General Industry Standard may, perhaps, be in order, especially,
if they would make it easier for construction employers and employees to
comply, the need for a wholesale replacement of the standard that
contractors have successfully complied with for over 15 years is simply
not justified.

In fact, ABC believes that the adoption of the proposed rule will
actually reduce employee safety, rather than increase it, which runs
contrary to the stated intent of this proposed standard.

Based on my year\'s of experience, I can say with absolute confidence
that there is an increased likelihood for confusion and mistakes to
occur any time employers and employees have to learn new terminology,
new regulations, new requirements. This is, especially, so when the old
and the new terminologies and regulations and requirements are similar
to the current standard and are not causing confusion or compliance
mistakes to occur.

To put it another way, as some of the fellows that were sitting here
beforehand said, you know, if it isn\'t broke there\'s no reason to fix
it, ABC agrees, you know, with the statements made prior to mine, and
with the National Utility Contractors Association\'s recommendations
that instead of adopting an entirely new standard OSHA should
incorporate by reference the General Industry Standard, 29 CFR 1910,
Section 146, into the OSHA Construction Standards 1926.

In summary, ABC believes that OSHA should adopt a new, separate confined
space standard for construction, and again, I\'d like to thank you for
the opportunity to testify today, and certainly am happy to answer any
questions, or try to.

ABC believes that OSHA should not adopt a new, separate confined space
standard for construction, sorry about that. I shouldn\'t have gone
drinking at lunch time.

JUDGE VITTONE: I think we understood your statement.

MR. SHAFFER: Thank you.

JUDGE VITTONE: Any questions from any of the participants? I see no
hands.

OSHA panel?

MR. BIERSNER: Your Honor, before we get started with our questioning,
could I admit to the record of this hearing two previous exhibits that
were presented to me by Mr. Yohay, one from Mr. Tommy Lee, entitled,
\"29 CFR 1926, Subpart (aa), Confined Spaces in Construction,\" which I
would label as Exhibit 0207, and the testimony of Mr. Art Daniel, again,
titled, \"29 CFR 1926, Subpart (aa), Confined Spaces in Construction,\"
which I would label Exhibit 0208. May I request that they be submitted
to the record of this hearing?

JUDGE VITTONE: Both exhibits will be made a part of the record.

(Whereupon, the documents were marked for identification as Exhibit Nos.
0207 and 0208, and were received in evidence.)

JUDGE VITTONE: Now, any questions from OSHA?

MR. BIERSNER: Yes, Your Honor.

I believe we\'ll start with Mr. Branch.

MR. BRANCH: Coming back to this within or near definition, do you have
any suggested rewording, or do you prefer affected employees, or
employees exposed to confined spaces standards?

MR. SHAFFER: I was just going to say, with something like that, if you
wouldn\'t mind I\'d like to think about that a little bit and, perhaps,
submit that in writing, because I think, you know, near, as some of the
folks that were up here prior to me, and probably even yesterday, I
mean, we could all go to a site today and the definition of near is
probably going to change amongst each and every one of us.

So, we\'d want to put something together that everybody has a common
understanding of, and I don\'t know that I\'d want to sit here and say
something right off the cuff that I think would be a good definition.

MR. HIRSCH: If I can add something.

I think the term that you use, or the terminology you use, is something
that has to be determined based upon what is your real stated objective.
When you tell me that I have a duty, what are you really asking me to
do?

The obligation that you are attempting to achieve is to promote safety.
So, whatever terminology you come up with needs to be clear enough so
that people understand when they are supposed to do something, and what
is they are supposed to do. And, they shouldn\'t have to find that out
after the fact.

And, that\'s the problem with the ambiguities, I think, that a lot of
people are talking about, because, and I\'ll give you an example, I\'ll
ask you, relative to us sitting up here on the dais, are you sitting
near me?

MR. BRANCH: Yes, I would say so.

MR. HIRSCH: Okay, well, I might say that you are not. So, the problem is
that if, in fact, you think that I have a duty to you, but I don\'t
think so, then I\'ve just excluded you from the protections that you
want me to provide.

That doesn\'t achieve safety, and I don\'t think that\'s what you really
are intending to do.

So, we may haggle over, ultimately, what the terminology is, or, let\'s
say spatial, and I think \-- I\'m not insensitive to the fact that you
really don\'t want to get into five foot, or ten foot, or something like
that, okay, that\'s not laws for me, but the problem still is that at
the end of the day, especially when you are working out in the so-called
\"real world,\" the people that are out there they are going to try to
implement this thing in good faith. It\'s easy to do Monday morning
quarterback, and that\'s, I think, the gist of what a lot of people are
saying in terms of the compliance.

The compliance officer comes in after the fact, and they do that Monday
morning quarterback, this should not be an exercise for compliance, it
should be an exercise aimed towards achieving safety, and that\'s done
up front as opposed to after the fact.

So, you know, I think everybody is willing to work with you, in terms of
coming up with something that will achieve the objective that you are
trying, but let\'s not do it in a way that creates more opportunity for
mischief.

JUDGE VITTONE: Excuse me, I\'m not sure, did Mr. Shaffer identify you as
counsel?

MR. HIRSCH: He did.

JUDGE VITTONE: Okay, I just wanted to be sure.

MR. HIRSCH: And, Your Honor, I\'ll give you a card also.

JUDGE VITTONE: That\'s fine.

MR. BIERSNER: The objective, I think, would be that we want to protect
any employee who, as a result of their construction work, would be \--
could come into contact with a confined space in some manner. I mean,
that\'s what we are after.

MR. HIRSCH: Well, okay, let me ask you something, and I\'m not fencing
with you, so I don\'t want you to misinfer, but if I, as an employer,
were to tell somebody that this is a confined space, or we perceive it
to be, for purposes of the compliance, I don\'t want you close to it. Is
that sufficient?

MR. BIERSNER: That sounds like it would be getting at what we want, yes.

MR. HIRSCH: Okay. Well, if you are able to give that type of guidance to
the employer community, that helps, but again, I don\'t think anybody
from our vantage point wants to have to play the game of guessing what
it is that we are really trying to accomplish.

And, I know one of the things, too, that does create some confusion,
and, unfortunately, I\'m a lawyer so I\'ll give you my lawyer banter,
but I was always instructed that if you look at a statute, or you look
at regulations, and you have two different sections, and the language is
different, then the objective behind the writing of it was that they
intended to have two different goals, or they were not to be interpreted
the same.

So, therefore, if, in fact, which goes to why we are saying we like the
General Industry, which we have been complying with, if we\'ve been
complying with it, and that\'s the terminology we understand for the
most part, and we\'ve been implementing it, any time you make changes
it\'s going to force us to have to go and expend a lot of money, getting
into your costing issue, at a minimum of doing retraining, which the way
I describe it in layman\'s terms is, you have to teach people new
habits. It\'s more difficult to teach people how to undo things that
they\'ve already been doing and substitute it with something else.

And again, I don\'t think that promotes safety.

MR. BRANCH: From my perspective as a standards writer, the Director of
Construction is a little bit different from the General Industry side.
We also have the compliance aspect of it.

In the 11 years that I\'ve been working doing the compliance side of it,
words like affected and exposed have been problematic.

MR. HIRSCH: I can appreciate that.

MR. BRANCH: When we were drafting this rule, we looked at a way to
narrow the universe from, as someone, I can\'t remember which testifier,
used the example of someone is driving a truck over a manhole, thinking
that this standard covers that person, this was the intent of trying to
narrow that universe down.

And, your example was good, as far as using the near and the distances,
but I can do the same thing with affected.

MR. HIRSCH: I agree with you, that\'s why I didn\'t answer your
question.

MR. BRANCH: Trying to find ways to better something that we found
through enforcement experiences to being problematic.

MR. HIRSCH: I don\'t think anybody would disagree. I think that\'s the
problem of \-- right now we are really talking process, we are trying to
figure out how, if you\'ve identified what the specific problem is, how
we come up with a solution.

MR. BRANCH: Right.

MR. HIRSCH: But, if we can all agree as to what the problem is, I think
finding the solution is a lot easier.

But, you have \-- keep in mind, you\'ve got another universe that\'s out
there besides \-- you\'ve got us, as employers trying to comply, you\'ve
got employees that also want to comply, and we have to train them, and
then you\'ve got the compliance officers who have to be in sync with
what we\'ve agreed to, and then most importantly, although I\'d like to
say we prefer not to have to deal with them, you have the plaintiffs\'
lawyers.

So, whatever we are going to do, we want to make sure that we are not
creating the extended reasonable man standard at the same time, because
that\'s where then the real true mischief becomes, and I think that\'s
where you heard a lot of the prior testifiers really going, in terms of,
we are always going to be forced, out of necessity, to infer greater
duties a lot of times on ourselves than you may have intended, because
we have to cover our proverbials.

So, you know, I think there\'s a way to be able to solve it, and
accomplish your objectives, and still accomplish ours.

MR. BRANCH: But, if we adopted the General Industry Standard as it is,
we\'ll still have our compliance problem with affected.

MR. HIRSCH: Well, but what you also \-- tell me if I\'m wrong, but I\'m
inferring that the terminology you currently have is problematic.

MR. BRANCH: For?

MR. HIRSCH: Me, It may be problematic to you, but it may also be
problematic for employers generally, that are subject to it, because
they are still wrestling with that, too. That\'s part of the problem
with the English language.

I will offer this, though, and I do this with every agency I\'ve ever
dealt with, and that is, I offer my personal services to craft your
final rule.

JUDGE VITTONE: Public citizen.

MR. SHAFFER: Mr. Biersner, I couldn\'t recant the exact definition you
gave a couple minutes ago, but, I mean, I think that\'s probably better
than the word near. I mean, it\'s moving in the right direction.

MR. BIERSNER: Well, okay, appreciate that.

MR. BRANCH: Only with regard to \-- I\'m very aware that, you know, we
have primes, and generals, and things on it, our definitions for the
entities that we regulate are based on their function, not necessarily
on their titles.

Could you kind of elaborate on what you would like us to do with the
generals, primes, subcontractors that you\'ve submitted in your comments
on page four?

MR. SHAFFER: On the February submittal.

MR. BRANCH: Right.

MR. SHAFFER: Okay. I think we were \-- if I\'m remembering properly
here, discussing use of controlling contractor, am I correct?

MR. BRANCH: Well, it was \-- they were using host and controlling, and
we\'re talking general, prime, versus subcontractor.

MR. SHAFFER: Host and controlling contractors, whereas, you know, most
of our folks, especially, from my standpoint when I\'m involved in doing
training with folks, you know, can you define host, what\'s controlling
contractor. But yet, if you say subcontractor, general, PM, you know,
they follow along with what you are saying.

We are looking at \-- you know, the feasibility of integrating those
more common terminologies instead of controlling contractor. I mean, the
folks that do what I do, and folks across the country that are safety
directors follow that, but for the folks that are you know, four men and
four women out on the field, there is sometimes a disjoint in the
language that we are speaking.

MR. BIERSNER: One of the reasons that we adopt this language, of course,
is that it has historic and legal significance. There\'s case law based
on controlling contractors. We have the host contractor in the 1910.146.
So, that\'s one of the reasons that we have adopted it for this
proposal.

MR. HIRSCH: Of course, keeping in mind that as you\'ve heard from many
of the prior people up here,we really don\'t particularly care for the
impact that you all support and we would prefer to get rid of.

MR. BIERSNER: Regardless of the term, it\'s the term, and we may have to
live with it.

MR. BRANCH: With regard, you made the comment that you already know what
a person is when you use prime, subs, is that more related to their
function for the completion of the construction process, or of their
safety obligations?

MR. SHAFFER: In terms of how they refer to them in the field?

MR. BRANCH: Yes.

MR. SHAFFER: I mean, they are \--

MR. BRANCH: In a construction process, not the safety.

MR. SHAFFER: \-- I was going to say more so contractually.

MR. BRANCH: Yes.

MR. SHAFFER: In the construction process.

MR. BRANCH: Okay, thank you.

JUDGE VITTONE: Any other questions?

MR. BIERSNER: Bob?

MR. BURT: Yes, just a couple of questions.

Would you say it is many, or most, or would you be prepared to make any
generalization about what percentage of your members now try to follow
1910.146 when they encounter confined spaces?

MR. SHAFFER: I was going to say, hey, I mean, I don\'t know, you know,
without surveying all 25,000 \--

MR. BURT: Yes.

MR. SHAFFER: \-- members, but I know, you know \--

MR. BURT: Some folks, many?

MR. HIRSCH: We feel reasonably confident in saying that the vast
majority of them we think do, and I think the reason why we say that is,
because we don\'t know scientifically, but I think if you look at the
statistics that you cited earlier, in terms of injuries, accidents,
fatalities, what have you, the amount, and we are not suggesting that
any accident is, you know, something that we want to support, but the
numbers themselves are not significant. And, if there was a huge
problem, I think those numbers would be higher.

MR. BURT: Again, if you first would \-- adopting the proposed standard
as against something like the General Industry Standard, do you think
this would result in a significant number of more permit required type
of confined spaces?

MR. SHAFFER: I am going to answer that in two parts, in actuality and
from a technical standpoint.

From a technical standpoint, I can only give you a subjective answer of
probably. From a reality standpoint, and what actually goes on in the
field, I don\'t know that the number is going to be significantly
different, especially, early on when there\'s going to be confusion
between the two standards.

MR. BURT: Okay. And, what would you see as the chief sources of new
activities undertaken? As an economist, I tend to think cost, but if you
are more comfortable with burden or activities undertaken, the things
you would need to do under \-- if you had to deal with the proposed
construction standard? I\'ve heard you talk about retraining people,
loss of simplicity, the controlling contractor related issues, are there
any others you\'d want to point out?

MR. SHAFFER: It really filters down to the reprogramming of terminology
and how we go about, you know, implementing a new plan, program. I mean,
you know, we are looking at the big picture a little bit, you know, we
go out on a construction job site, we are looking beyond just, you know,
the permit spaces, but maybe there is scaffold over there, and there\'s
fall protection here, and excavating over there, and, especially, our
supervisory personnel. There\'s a lot of things going through their
mind, let alone, you know, things that are safety related, things that
are business related.

And now, you know, over the past 15 years they\'ve become accustomed to
and comfortable with the General Industry requirements, and, you know,
requirements out of ANSI Z117, and now we are changing ball fields on
them.

MR. HIRSCH: I\'ll throw one other broad category out, and I\'ll give you
a couple examples of what I\'m talking about. I think it\'s the
consequential damages that are potentially hugely significant as a
result of the confusion.

As Craig testified, confusion leads to a higher likelihood of accidents,
injuries, and, unfortunately, potentially, fatalities. All of that has
huge cost consequences, none of which, in the ideal sense, anybody wants
to deal with. But, those are things which I think, unfortunately, you
have to factor in, that are costs that we are going to end up \-- even
if we are successful, ultimately, in the litigation, there\'s still
costs associated with that.

There are still going to be costs in terms of Worker\'s Comp premiums.
There\'s a whole slew of consequential damages which are not your
intention, they may not be as direct as you might think, but they are
direct in the sense of the consequences of shifting from something which
is working to something which is brand new.

MR. BURT: Thank you.

MR. BIERSNER: I believe that ends our questioning, Your Honor.

Before we conclude, could I admit to the hearing record Mr. Shaffer\'s
submitted written comments entitled, \"Before the Occupational Safety
and Health Administration\'s Informal Public Hearing on Confined Spaces
in Construction Proposed Rule,\" as Exhibit 0209 in this hearing record?

JUDGE VITTONE: It will be made a part of the record.

(Whereupon, the document was marked for identification as Exhibit No.
0209.)

JUDGE VITTONE: Thank you, Mr. Shaffer.

MR. SHAFFER: Thank you, folks. Thank you, sir.

MR. HIRSCH: Thank you.

JUDGE VITTONE: Okay, we\'ve gone through all the witnesses scheduled,
and we thank you all.

We need to establish a date for post hearing comments and for briefs.

MR. BIERSNER: Okay, Your Honor.

JUDGE VITTONE: Mr. Biersner \-- I\'m sorry.

MR. BIERSNER: The \--

JUDGE VITTONE: Mr. Yohay asked me, before he left, if that period could
be established taking into consideration when the transcript will be
available for the parties. He said that he\'s got, I think, at least
three clients that he\'s got to prepare post hearing comments for, as
well as prepare briefs, and it would be helpful if he could see the
transcript first.

MR. BIERSNER: All right, Your Honor. I think we can probably accommodate
that. I realize it may be a while before we get them, but I\'d have to
have a calendar.

The first thing I\'d like to do is to propose that the \-- at least we
can do this, I think the post hearing comment period we can change to 61
days, which would end September the 22nd of this year, 2008.

JUDGE VITTONE: Post hearing comments?

MR. BIERSNER: The post hearing comment period, which is, I think, the
one that he would be most interested in. That\'s the first period, would
end in 61 days, because the 60th day would fall on a Sunday, so we\'d
want it to fall on a Monday, which would be September 22, 2008, and I\'m
\-- is it safe to say that 30 days after that for the second period, the
second post hearing period, in which we ask for final written comments
and briefs, would occur on October the 22nd? Is that a \--

JUDGE VITTONE: October 22nd would be a Wednesday.

MR. BIERSNER: And, would that be 30 days after September the 22nd?

JUDGE VITTONE: I think it\'s got to go one more day.

MR. BIERSNER: One more day, so it would be the 23rd of October.

JUDGE VITTONE: October 23rd.

MR. BIERSNER: Okay. So, the first part of the post hearing \-- to get it
straight then, the first part of the post hearing comment period for
interested parties to submit additional information and data would be 61
days from tomorrow, which would be September 22, 2008, and the second
post hearing comment period for interested parties to submit final
written comments and briefs would occur 30 days after that, which would
be October the 23rd, 2008.

JUDGE VITTONE: And, the transcript will be available in two weeks?

MR. BIERSNER: We believe it\'s two weeks.

JUDGE VITTONE: Okay. Ms. Moore?

(Whereupon, off-mic comments.)

MR. BIERSNER: No, it would not.

JUDGE VITTONE: All right. Okay, well, 60 days for post hearing comments
I think is reasonable, 30 days beyond that for the briefs and post
hearing comments.

Thank you, sir.

Okay, let me close the proceedings with a statement and summary of where
we are.

This public hearing on the standards for confined spaces in construction
is concluded. All persons, organizations, and entities who filed Notices
of Intent to Appeal and comment, having been extended an opportunity to
do so on today\'s schedule, and in almost all instances in the order as
set forth in the tentative schedule.

An opportunity also was presented for the presentation of comments, and
all witnesses have been subject to examination by all the participants
and the OSHA staff.

This record will remain open until September the 22, 2008, for the
receipt of written information, additional data, comments, requests for
additional data from the OSHA staff.

The record then will close \-- the record then will continue to be open
for the receipt of written comments or briefs until October the 23rd,
2008.

I want to thank all of you for your cooperation and participation in the
proceeding. We appreciate it very much, and have a good day.

Thank you.

MR. BIERSNER: Thank you, Your Honor.

(Whereupon, the above-entitled matter was concluded at 2:35 p.m.)