UNITED STATES DEPARTMENT OF LABOR











                             INFORMAL PUBLIC HEARING

                 ON PROPOSED RULE ON CLARIFICATION OF REMEDY FOR
                 VIOLATION OF REQUIREMENTS TO PROVIDE PROTECTIVE
                          EQUIPMENT AND TRAIN EMPLOYEES





















                                 Washington, D.C.

                             Monday, October 6, 2008





                                                             2

          1    PARTICIPANTS:

          2          JOHN VITTONE
                     Administrative Law Judge
          3
                  Panel Members:
          4
                     EDMUND BAIRD
          5          Office of the Solicitor

          6          ROBERT BURT
                     OSHA Office of Regulatory Analysis
          7
                     CHARLES JAMES
          8          Office of the Solicitor

          9          JIM MADDUX
                     OSHA Directorate of Standards and Guidance
         10          Office of Physical Hazards and Others

         11          BILL PARSONS
                     OSHA Directorate of Construction
         12          Office of Construction Standards and Guidance

         13       Other Participants:

         14          ADELE ABRAMS
                     American Society of Safety Engineers
         15
                     VICTORIA BOR
         16          Building and Construction Trades Department

         17          DANIEL W. EGELER
                     Con-way, Inc.
         18
                     ROBERT HIRSCH
         19          Associated Building Contractors

         20          ANDREW HOLLIDAY
                     National Association of Home Builders
         21
                     KEN KILLOUGH
         22          South Carolina Stevedores Association




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                                                             3

          1    PARTICIPANTS (CONT'D):

          2       Other Participants (Cont'd):

          3          BILL KOJOLA
                     American Federation of Labor and Congress of
          4          Industrial Organizations

          5          ROBERT MATUGA
                     National Association of Home Builders
          6
                     LYNN RHINEHART
          7          American Federation of Labor and Congress of
                     Industrial Organizations
          8
                     PAREE L. ROPER
          9          Public Risk Management Association

         10          ARTHUR G. SAPPER
                     McDermott Will & Emery, LLP
         11          Representing the Chamber of Commerce of the
                     United States of America
         12
                     CHRIS TRAHAN
         13          Building and Construction Trades Department

         14

         15

         16

         17

         18                       *  *  *  *  *

         19

         20

         21

         22




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                                                             4

          1                      C O N T E N T S

          2    AGENDA ITEM:                                  PAGE

          3    INTRODUCTION AND HEARING GUIDELINES              5

          4    OVERVIEW OF PROPOSED RULE                        8

          5    PARTICIPANT TESTIMONIES                         35

          6    CLOSING STATEMENTS

          7    ADJOURNMENT

          8

          9    EXHIBITS:

         10    No. 71 - Mr. Maddox's Statement                 22

         11    No. 73 - Mr. Parson's Statement                 22

         12    No. 74 - Mr. Matuga's Written Testimony         47

         13    No. 75 - Mr. Hirsch's Written Testimony         64

         14    No. 76 - Minutes, 15-16 May 2008 Meeting        69
                        of the Advisory Committee on
         15             Construction, Safety, and Health

         16

         17

         18

         19                       *  *  *  *  *

         20

         21

         22




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                                                             5

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

          2                                        (10:00 a.m.)

          3              JUDGE VITTONE:  Let's go on the

          4    record please.  The hearing will please come

          5    to order.

          6              This is a public hearing on the

          7    Occupational Safety and Health

          8    Administration's Proposed Rule for

          9    Clarification of Remedies for Violation of

         10    Requirements to Provide Personal Protective

         11    Equipment and Train Employees.  This proposed

         12    rule for this proceeding was published in the

         13    Federal Register at Volume 73, page 48,335,

         14    on August 19, 2008.

         15              I'm John Vittone, Chief

         16    Administrative Law Judge for the U.S.

         17    Department of Labor, and I will be presiding

         18    at these hearings.

         19              The purpose of these hearings is to

         20    receive the oral and written testimony of

         21    interested parties, as well as other

         22    information pertinent to the promulgation of




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                                                             6

          1    the proposed rule.  At the conclusion of

          2    these hearings, the record of these

          3    proceedings will be reviewed by the

          4    Department to determine whether a rule should

          5    issue, and if so, what the content of that

          6    rule should be.

          7              My participation will be limited to

          8    conducting these hearings to assure that a

          9    complete record is made and that all

         10    concerned and interested parties have a fair

         11    hearing.

         12              The rules governing this hearing,

         13    as well as the prehearing guidelines, are

         14    available in the hallway outside on that

         15    table.  There is also a list of witnesses

         16    available designating their proposed order of

         17    appearance.

         18              Despite what is often described as

         19    the informal nature of these hearings, it is

         20    governed by some basic guidelines to assure

         21    that everyone has an opportunity to speak and

         22    to express their point of view.  But unduly




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                                                             7

          1    repetitious testimony will not be allowed,

          2    and the presentation of witnesses will be

          3    generally limited in time to about 10

          4    minutes.

          5              The written submissions will be a

          6    matter of record and participants in this

          7    proceeding should in their oral testimony

          8    concentrate on presenting the highlights or

          9    clarifying their written submissions.

         10              Witnesses may, if they wish,

         11    identify their written submissions and make

         12    themselves available for questions by the

         13    other participants.  After a witness has

         14    completed his testimony, parties who have

         15    filed appearances may question the witness,

         16    and each participant is expected to limit his

         17    questions to a period of about 15 minutes.

         18              When a witness' testimony is

         19    completed, I will ask for the identity of

         20    those individuals in the audience who wish to

         21    question the witness, and then I'll determine

         22    the order in which the participants will




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                                                             8

          1    question the particular witness.

          2              These proceedings will now begin.

          3    And I'd like to call upon the representative

          4    from the Solicitor's office, Mr. Baird, for a

          5    few remarks and to introduce the

          6    representatives from the Department of Labor.

          7    Mr. Baird.

          8              MR. BAIRD:  Thank you, Your Honor.

          9    Good morning.  My name is Edmund Baird, and I

         10    am the hearing attorney for this rulemaking.

         11    On behalf of the Solicitor's office, I'd like

         12    to welcome everyone to this informal public

         13    hearing.

         14              Let me explain the role of the

         15    Solicitor's office in this rulemaking

         16    hearing.  Our responsibility is to help

         17    facilitate the development of a complete,

         18    accurate, and clear record.  We will do that

         19    through asking questions, eliciting

         20    information on various issues, and helping to

         21    resolve any procedural issues.

         22              At this time, Your Honor, I'm going




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                                                             9

          1    to hand you the current master index to the

          2    record and ask that the record it represents

          3    be accepted as the current rulemaking hearing

          4    record.

          5              JUDGE VITTONE:  Thank you.  It will

          6    be received into the record of this

          7    proceeding as the record of the proceeding to

          8    date.

          9              MR. BAIRD:  Thank you, Your Honor.

         10    Now I'd like to introduce the members of

         11    OSHA's panel here.  To my right is Charles

         12    James.  Charles James is an appellant counsel

         13    in the Occupational, Safety and Health

         14    Division of the Solicitor's office and is the

         15    project attorney on this rulemaking.

         16              To his right is Jim Maddux.  Jim

         17    Maddux is the acting director of OSHA's

         18    Office of Physical Hazards.

         19              To his right is Bill Parsons.  Mr.

         20    Parsons is the director of OSHA's Office of

         21    Construction Standards and Guidance.

         22              And finally, at the end of the




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                                                            10

          1    table is Robert Burt, who is the director of

          2    OSHA's Office of Regulatory Analysis.

          3              To begin, Mr. Maddux and Mr.

          4    Parsons will each have a short opening

          5    statement, and if it's all right with Your

          6    Honor, they could start now.

          7              JUDGE VITTONE:  Yes.

          8              MR. MADDUX:  Good morning, Judge

          9    Vittone, Ladies and Gentlemen.  As Ed said,

         10    I'm Jim Maddux from our Directorate of

         11    Standards and Guidance here in OSHA.  And on

         12    behalf of OSHA I'd like to welcome you to

         13    this informal public hearing on the proposed

         14    clarification of remedy for violations of

         15    requirements to provide personal protective

         16    equipment and train employees.

         17              This hearing is an important step

         18    in providing additional clarity about

         19    employers' duties to provide training and PPE

         20    for each of their employees when required.

         21    The development of a clear, accurate, and

         22    complete public record is a critical part of




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                                                            11

          1    the rulemaking process.  And your

          2    participation and contributions are greatly

          3    appreciated.

          4              Let me assure you that OSHA will

          5    fully consider your comments, testimony, and

          6    recommendations as the Agency develops its

          7    final standard.  And I'm sure that we all

          8    share the same goal of protecting employees.

          9              To provide the background for the

         10    proposed rules, under the OSH Act, OSHA has

         11    the authority to issue citations and propose

         12    penalties for each violation of a duty

         13    imposed by a standard or regulation.

         14              For example, a requirement that a

         15    machine be guarded allows separate citations

         16    for each machine that does not have the

         17    proper guarding.

         18              Likewise, the trenching standards

         19    shoring and shielding requirement is violated

         20    by each unprotected trench.  A recordkeeping

         21    requirement is violated each time the

         22    employer fails to record an employee's injury




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                                                            12

          1    or illness.

          2              Although the Agency has this

          3    authority to issue citations on a per-

          4    instance or violation-by-violation basis, it

          5    is used only in limited circumstances.  It is

          6    our long-standing policy to reserve this

          7    authority only for particularly flagrant

          8    cases involving willful violations.

          9              The purpose of issuing per-instance

         10    violations in such circumstances is to

         11    provide an adequate incentive for employers

         12    to correct their occupational safety and

         13    health practices and increase the impact of

         14    OSHA's limited inspection resources.

         15              Under OSHA's per-instance or

         16    egregious policy, a number of criteria are

         17    considered in deciding to issue these

         18    citations.  And the decision is reviewed by

         19    the regional and national offices of OSHA,

         20    OSHA's assistant secretary, and the Solicitor

         21    of Labor.  OSHA's egregious policy directive

         22    was adopted in 1990, and since that time the




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          1    Agency has used this authority about 130

          2    times over that 18 year period.  By way of

          3    contrast, OSHA has issued hundreds of

          4    thousands of other citations in the same time

          5    period.

          6              An example of egregious conduct

          7    warranting per-instance citations arose in

          8    the Ho case.  There a building owner named

          9    Eric Ho hired undocumented Mexican employees

         10    to remove asbestos without providing any of

         11    them with respirators or other required

         12    protective equipment.

         13              He also did not provide any

         14    training on the hazards of asbestos removal

         15    or proper work practices.

         16              About a month after the work

         17    started, a city inspector shut it down

         18    because of the asbestos exposure.

         19    Nonetheless, Ho surreptitiously continued the

         20    project, requiring the employees to work at

         21    night behind locked gates.

         22              The secretary issued per-instance




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                                                            14

          1    citations to Ho for respirator and training

          2    violations.  OSHA's asbestos standard

          3    required employers to provide respirators and

          4    ensure that they are used, and to institute

          5    an asbestos training program for all

          6    employees and ensure their participation in

          7    the program.  The citations charged separate

          8    violations of these requirements for each of

          9    the 11 employees involved in the work.

         10              The Occupational Safety and Health

         11    Review Commission refused to assess penalties

         12    against Ho on a per-employee basis.

         13    Acknowledging that Ho was one of the worst

         14    employers the Commission has had come before

         15    it, it nonetheless held that per-employee

         16    citations were not permissible because of the

         17    wording of the asbestos standard.

         18              Rather than impose a duty requiring

         19    employers to train and provide respirators to

         20    each employee, the Commission held that the

         21    standard was worded only to require an

         22    employer to have a training program, and




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                                                            15

          1    generally to provide respirators to its

          2    employees.

          3              The language of this standard

          4    addresses employees in the aggregate, the

          5    Commission said.  And it makes no difference

          6    whether one or all 11 of Ho's employees were

          7    not provided or using respirators.  Upon

          8    further appeal, the Fifth Circuit Court of

          9    Appeals affirmed the Commission's decision.

         10              OSHA strongly disagrees with the

         11    Commission's decision in the Ho case and

         12    believes that all of its training and

         13    personal protective equipment standards place

         14    a duty on employers to provide training and

         15    protection to each and every employee covered

         16    by the relevant standard.

         17              The duty is inherent in the nature

         18    of the standard and is not affected by minor

         19    differences in the wording of each standard.

         20    The hazard effects employees individually,

         21    therefore, the employer is required to

         22    protect each employee individually.




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          1              In the wake of Ho and several other

          2    Commission decisions that followed its

          3    approach, OSHA undertook a review of all of

          4    its PPE and training requirements.  OSHA

          5    found that some of the standards explicitly

          6    place the duty on employers to ensure

          7    training for each employee.  Violations of

          8    these standards may be cited on a

          9    per-instance basis, even under the Ho

         10    approach.

         11              However, some standards, like the

         12    asbestos standard, are phrased in terms of

         13    training programs for employees.  It is

         14    possible that, following Ho, the Commission

         15    might refuse to impose per-employee

         16    violations for these standards.

         17              Therefore, OSHA has undertaken this

         18    rulemaking to provide additional clarity and

         19    consistency regarding the individual duty

         20    that employers have to each of their

         21    employees when complying with OSHA's training

         22    and PPE requirements.




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                                                            17

          1              The proposed rule provides this

          2    consistency and clarity in two ways.  First,

          3    it proposes a new section to Subpart A of

          4    Parts 1910, 1915, 1917, and 1918, and to

          5    Subpart C of Part 1926.

          6              These new sections affect OSHA's

          7    general industry, construction, shipyard,

          8    long shoring, and marine terminal standards.

          9    The sections contain language expressly

         10    stating that PPE and training requirements

         11    impose a separate compliance duty for each

         12    employee.

         13              Second, the rule revises the text

         14    of training and respirator requirements for

         15    several standards, including the asbestos

         16    standards when the existing language might be

         17    susceptible to Ho-type interpretations.  OSHA

         18    wishes to stress the limited nature of this

         19    rulemaking.  OSHA has not changed any

         20    substantive requirements already imposed by

         21    its standards.  It remains OSHA's position

         22    that for each of the standards revised out of




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                                                            18

          1    this rulemaking, employers are already

          2    required to provide training and PPE for each

          3    of their employees.

          4              The proposed revisions do not

          5    require employers to provide any new or

          6    additional PPE, including respiratory

          7    equipment, or provide training that is not

          8    already required.

          9              The proposal, therefore, imposes no

         10    new costs or duties on employers.  Rather,

         11    the purpose of the proposal is to add clarity

         12    and emphasize the employer's responsibility

         13    to provide protection to each employee.

         14              Finally, it should be clear that

         15    the proposal has no affect on OSHA's policy

         16    for issuing instance-by-instance violations.

         17    In particular, the proposal would not require

         18    OSHA to issue citations on a per employee

         19    basis.  That decision would continue to be

         20    made on a discretionary basis in accordance

         21    with OSHA's egregious policy.

         22              To sum up, the importance of public




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                                                            19

          1    participation in this phase of the rulemaking

          2    cannot be overemphasized.  The rule which we

          3    will be discussing is still in the proposal

          4    stage.  It should not be considered OSHA's

          5    final determination or position on the issues

          6    involved.

          7              The purpose of this informal public

          8    hearing is to provide a forum for a thorough

          9    discussion of the proposed standard, and to

         10    receive testimony and additional evidence to

         11    assist OSHA in developing a final standard

         12    that reflects the best available and most

         13    current information.

         14              Further opportunities for hearing

         15    participants to introduce evidence and

         16    argument will be provided during the 30-day

         17    post-hearing comment period.  I would also

         18    like to note that OSHA has added additional

         19    supporting materials containing economic data

         20    and inspection statistics into the docket for

         21    this rulemaking.

         22              Thank you for your attention.  At




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                                                            20

          1    this time Bill Parsons will make his

          2    statement about construction, and then we

          3    will answer any questions that you might have

          4    about the proposal.

          5              MR. PARSONS:  Thank you, Jim.  Good

          6    morning, Judge Vittone, ladies and gentlemen.

          7              As the director of the Office of

          8    Construction Standards and the Directorate of

          9    Construction, I'd like to reiterate that the

         10    proposed rule provides clarity and

         11    consistency.

         12              The proposed sections of the

         13    proposed rule do affect and are applicable to

         14    OSHA's construction standard.  The sections

         15    contain language expressly stating that PPE

         16    and training requirements impose a separate

         17    compliance duty for each employee.  OSHA has

         18    not changed any substantive requirements

         19    already imposed by its construction

         20    standards.

         21              It remains OSHA's position that for

         22    construction standards, as for other industry




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                                                            21

          1    standards revised under this rulemaking,

          2    employers are already required to provide

          3    training and PPE for each of their employees.

          4    Thank you.

          5              JUDGE VITTONE:  Mr. Baird.

          6              MR. BAIRD:  At this time, Your

          7    Honor, I'd like to mark and move for the

          8    admission of Mr. Maddox's and Mr. Parson's

          9    statements.

         10              As you might be aware, OSHA has

         11    moved to an Internet docketing system at

         12    regulations.gov, and while that system has

         13    many advantages, one disadvantage is each

         14    exhibit number is quite long, which includes

         15    the docket number.

         16              The docket number for this

         17    proceeding is OSHA20080031, and each exhibit

         18    would have a discreet number appended to that

         19    docket number.  For the purposes for this

         20    proceeding, with your permission, I'll just

         21    refer to the final four digits of each

         22    exhibit number.




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                                                            22

          1              JUDGE VITTONE:  That's fine.

          2              MR. BAIRD:  So I will request

          3    permission to mark Mr. Maddox's statement as

          4    Exhibit 71 and Mr. Parson's statement as

          5    Exhibit 73, and have them admitted into the

          6    record.

          7              JUDGE VITTONE:  They'll be made a

          8    part of the record.  Thank you very much.

          9                   (Exhibit Nos. 71 and 73 were

         10                   marked for identification and

         11                   received in evidence.)

         12              JUDGE VITTONE:  Anything else, Mr.

         13    Baird?

         14              MR. BAIRD:  That's it.

         15              JUDGE VITTONE:  A couple of

         16    housekeeping matters.  One, water is fine,

         17    coffee is not.  Cokes, potato chips, popcorn,

         18    no.  Water is fine, if you want to drink

         19    water during the course of the hearing.

         20              After we go through the witnesses

         21    and I call on the participants for

         22    questioning, usually the OSHA panel goes




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                                                            23

          1    last.  Is that what you intend, Mr. Baird?

          2              MR. BAIRD:  Yes, Your Honor.

          3              JUDGE VITTONE:  Okay.  So we'll

          4    call on the people in the audience first to

          5    do their questioning, and then we'll ask the

          6    OSHA panel if they have any questions.

          7              All right.  Our first witnesses are

          8    Mr. Holliday and Mr. Matuga from the National

          9    Association of Home Builders.

         10              MR. BAIRD:  Your Honor, if I might.

         11    I think at this time people from the audience

         12    should be offered an opportunity to question

         13    the OSHA panel.

         14              JUDGE VITTONE:  Oh, I'm sorry.  I'm

         15    getting a jump ahead of myself here.  Sorry,

         16    gentlemen.

         17              Okay, does anybody have any

         18    questions for the OSHA panel?  My fault.

         19              Yes, sir.  Would you come to the

         20    podium and identify yourself please?  All the

         21    participants -- I'm sure you've all been

         22    through this drill, so please come to the




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          1    podium and identify yourself each time you

          2    come up.  Go ahead.

          3              MR. SAPPER:  Thank you, Your Honor.

          4    Good morning.  My name is Art Sapper.  I'm an

          5    attorney with the law firm of McDermott Will

          6    & Emery.  I'm going to be presenting

          7    testimony this afternoon after lunch on

          8    behalf of the Chamber of Commerce of the

          9    United States.

         10              I have only a few questions.  The

         11    first for Mr. Maddux.  Mr. Maddux, on page 4

         12    of your written testimony you say that

         13    following Ho, the Commission might refuse to

         14    impose per-employee penalties for violations

         15    of these standards.

         16              I take it then that you'd agree

         17    that the affect of this proposal, if put into

         18    final form, would be to increase the number

         19    of per-employee penalties, right?

         20              MR. MADDUX:  No.

         21              MR. SAPPER:  It would not?

         22              MR. MADDUX:  No, I think that all




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          1    we're trying to do is to preserve our current

          2    authority to issue employee-by-employee

          3    penalties.

          4              MR. SAPPER:  But there would be

          5    per-employee penalties on occasions that are

          6    not now permitted by the Ho decision, right?

          7              MR. MADDUX:  I guess that's

          8    possible, but I don't see any increase in the

          9    total number.

         10              MR. SAPPER:  No necessary increase?

         11              MR. MADDUX:  No.

         12              MR. SAPPER:  But a possible

         13    increase?

         14              MR. MADDUX:  I guess it's possible,

         15    yes.

         16              MR. SAPPER:  Okay.  And on page 5

         17    you say the proposal therefore imposes no new

         18    costs or duties on employers.  I take it you

         19    mean no new compliance costs.  Is that

         20    correct?

         21              MR. MADDUX:  Yes, that's correct.

         22    There are no new equipment or training




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                                                            26

          1    requirements.

          2              MR. SAPPER:  Thank you.  My next

          3    question is for Mr. Burt.  Mr. Burt, has the

          4    Agency estimated the increase in possible

          5    penalties as a result of the proposal?

          6              MR. BURT:  No, it has not, because

          7    as Mr. Maddux stated we do not view this as

          8    any fundamental change in our policies in

          9    this respect.

         10              MR. SAPPER:  And I understand that

         11    new economic data has been submitted into the

         12    rulemaking record.  Could you please briefly

         13    characterize that for me?

         14              MR. BURT:  Yes, for the aid of OSHA

         15    and any other participant in the hearing who

         16    would like quantitative information about the

         17    number of citations in this, which is

         18    quantitative information on the extent of

         19    respirator, PPE use, we introduce documents

         20    that might be helpful.

         21              MR. SAPPER:  What kind of economic

         22    data does that constitute?




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          1              MR. BURT:  Basically, economic

          2    analyses of the respirator and PPE rules, and

          3    surveys of the extent of respirator use and

          4    of the extent of PPE use in U.S. industry.

          5              MR. SAPPER:  And what kind of

          6    change as a result of this proposal does the

          7    economic analysis portend, or analyze, or

          8    predict?

          9              MR. BURT:  Our economic analysis is

         10    still what it is in the proposal.  We

         11    anticipate no costs.

         12              MR. SAPPER:  Thank you very much,

         13    Your Honor.

         14              JUDGE VITTONE:  Thank you, Mr.

         15    Sapper.  Anyone else have any questions for

         16    them?  Yes, ma'am.

         17              MS. BOR:  Good morning.  I'm

         18    Victoria Bor, counsel to the Building and

         19    Construction Trades Department of the AFLCIO.

         20              Just a few questions.  You state in

         21    the Federal Register Notice, and Mr. Maddux,

         22    you stated this morning, that the intent of




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          1    this proposal is to make clear that in every

          2    instance in which a standard requires

          3    employers to follow practice of providing

          4    training or PPE, that that obligations runs

          5    to each employee.  And I just want to clarify

          6    one thing.

          7              You've proposed a new language, a

          8    new section for each of your general industry

          9    and industrial sector standards that states

         10    that interpretation.  And then you've

         11    proposed specific language for some of your

         12    substance-specific standards.

         13              My question is this.  There are

         14    other standards that require PPE and that

         15    require training that you have not proposed

         16    to modify.  Is it correct that the new

         17    section applies to all of your PPE and

         18    training requirements whether or not you're

         19    making specific changes in the

         20    substance-specific provisions?

         21              MR. MADDUX:  Yes, that's exactly

         22    right.  What we've done is to put in the




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          1    general requirement for each of the parts so

          2    that it's clear that all of the PPE and

          3    training requirements are treated the same.

          4    And then we've gone in and sort of

          5    selectively changed a few of them that we

          6    think are most susceptible to a Ho-type

          7    interpretation.

          8              MS. BOR:  Thank you.  I also have a

          9    couple of questions about your compliance

         10    policy.  Again, you said there was no intent

         11    here to change your egregious penalty policy.

         12    Do you expect that this is going to change

         13    the way in which compliance officers collect

         14    evidence when they conduct an inspection?

         15              MR. MADDUX:  No, not at all.

         16              MS. BOR:  A number of commenters

         17    have expressed concern that the changes will

         18    lead overly zealous compliance officers to

         19    issue per-instance citations in every

         20    situation in which an employee is denied PPE

         21    or is inadequately trained.  And I want to

         22    ask you a couple of questions about that.




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          1              Is it up to a compliance officer to

          2    make the final charging decision after an

          3    inspection?  In other words, is it up to the

          4    compliance officer to decide whether

          5    citations will be issued on an instance-

          6    by-instance basis?

          7              MR. MADDUX:  Oh, no, not at all.

          8    Of course, as it is with any sort of an

          9    inspection, it all begins with the compliance

         10    officer that is there, that is kind of our

         11    eyes, and ears, and boots on the ground at

         12    the facility.  And they observe conditions

         13    and collect evidence that's relevant to any

         14    safety and health violations that may be

         15    there.

         16              If the compliance officer believes

         17    that there may be an egregious case, that

         18    that potential exists, then they need to, as

         19    you pointed out, collect more evidence to

         20    help support those assertions.  That case is

         21    then reviewed by his or her supervisor at the

         22    area office to decide whether or not the case




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          1    is worth moving forward.  If they decide that

          2    that is the correct approach, then it is

          3    reviewed at the regional office by both OSHA

          4    representatives and by our solicitors.

          5              If there is still agreement that

          6    this is a worthwhile case, then it is brought

          7    into the national office where it is reviewed

          8    by the appropriate enforcement office and the

          9    national solicitor's office.  And if it is

         10    still deemed to be of merit, then it is

         11    reviewed by the assistant secretary or the

         12    deputy assistant secretary, who makes the

         13    final determination.

         14              MR. JAMES:  Excuse me.  Along with

         15    the Solicitor of Labor.

         16              MR. MADDUX:  Yes, of course.

         17              MS. BOR:  Thank you.  And just to

         18    circle back to a statement you made earlier,

         19    you've now described many layers of decision

         20    making and many layers of supervision.  Do

         21    you expect or intend the proposed language

         22    changes to have any impact on how those




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          1    decisions are made?

          2              MR. MADDUX:  No, not at all.

          3              MS. BOR:  Okay.  Mr. Burt, I'd like

          4    to ask you a couple of questions about the

          5    economic impact analysis.  In the Federal

          6    Register notice, OSHA states that it's

          7    determined under Executive Order 12866 and

          8    the Regulatory Flexibility Act, that the

          9    proposal will not have any significant

         10    economic impacts on the regulated community.

         11    And as I understand your answer to Mr.

         12    Sapper's question, the additional information

         13    that you put in the record has not changed

         14    that conclusion.

         15              I have a couple of questions about

         16    the analysis that's required under Executive

         17    Order 12866 and the Regulatory Flexibility

         18    Act.  Starting with the Executive Order, is

         19    there anything in the Executive Order that

         20    requires OSHA to examine the costs to an

         21    employer of failure to comply with a standard

         22    as opposed to the costs of complying with a




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          1    proposed standard?

          2              MR. BURT:  I would have to say that

          3    that is just not crystal clear.  I'm sorry.

          4    Exactly -- I think some interesting issues

          5    sometimes arise where the sole purpose of a

          6    regulation is to increase compliance, both

          7    with OMB and with respect to Office of

          8    Advocacy and SBA.  We argue that that is not

          9    the case here because this does not represent

         10    a change.

         11              This is simply continuing a policy

         12    that already exists.  That's the core of our

         13    position there.

         14              MS. BOR:  Well, let me ask you a

         15    more specific question.  I asked you about

         16    the costs of noncompliance, but let me ask

         17    you very specifically about the penalty costs

         18    of noncompliance.  Is that something that you

         19    understand to be part of what the Executive

         20    Order requires you to consider in looking at

         21    the impact of a rule?

         22              MR. BURT:  I would answer in two




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          1    parts.  We certainly have never done so nor

          2    has someone objected we have failed to do so.

          3    And two, technically, from the viewpoint of

          4    the Executive Order, a penalty is a transfer

          5    from an employer to a government.  This is

          6    not to say it might not need to be accounted

          7    for in some circumstances, but it's not a net

          8    cost to the economy.

          9              MS. BOR:  Let me ask you the same

         10    question with respect to the Regulatory

         11    Flexibility Act.  Again, is it your

         12    understanding that that statute requires OSHA

         13    in conducting an economic impact analysis to

         14    consider the costs of employers for failing

         15    to comply with the requirements of a

         16    standard.  And specifically, I'm sorry, the

         17    penalty costs of failure to comply?

         18              MR. BURT:  It does not explicitly

         19    call for that in any way.  What it might call

         20    for, again, the word cost is sometimes a

         21    little ambiguous.  And it chiefly talks about

         22    costs and significant impacts.  So it's a




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          1    difficult issue as to how one would approach

          2    that issue in the Regulatory Flexibility Act.

          3              MS. BOR:  Has OSHA ever done so?

          4              MR. BURT:  No.  It has not done so,

          5    and no one has objected to it.

          6              MS. BOR:  Thank you.

          7              JUDGE VITTONE:  Thank you, Ms. Bor.

          8    Anyone else have questions for the panel?  I

          9    don't see any hands.  It's a tall podium.  Or

         10    this is a short chair.

         11              Okay.  Now we will go to the

         12    participants.  Mr. Holliday and Mr. Matuga.

         13    Am I pronouncing that correctly, I hope?

         14    This table over here to my left, please.

         15              Would you be careful to speak

         16    directly into the microphone so that will

         17    make sure that the court reporter picks up

         18    all of your testimony.  Please identify

         19    yourselves and who you represent.

         20              MR. MATUGA:  Certainly.  Good

         21    morning, OSHA panelists, Judge Vittone, and

         22    guests.  By way of introduction, my name is




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          1    Robert Matuga.  I am the assistant staff vice

          2    president for Labor, Safety and Health for

          3    the National Association of Home Builders,

          4    and to my left here is our association's

          5    regulatory counsel, Mr. Andrew Jackson

          6    Holliday.  You can just call him A.J., if you

          7    like.

          8              On behalf of the National

          9    Association of Home Builders, we appreciate

         10    the opportunity to participate in this public

         11    forum and to further comment on OSHA's

         12    proposed clarification of remedy for

         13    violation of requirements to provide personal

         14    protective equipment and train employees.

         15              I appear before you today to

         16    highlight the impact that changes to OSHA

         17    regulations have on the homebuilding

         18    industry.

         19              The National Association of Home

         20    Builders is a building trade association

         21    representing 235,000 member companies

         22    nationwide.  Our membership consists of




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          1    builders, remodelers of single family homes,

          2    townhomes, apartments, and condominiums, as

          3    well as thousands of specialty trade

          4    contractors.

          5              A vast majority of NAHB's members

          6    are classified as small businesses, and our

          7    members employ approximately seven million

          8    people nationwide.  NAHB's builder members

          9    will construct about 80 percent of the new

         10    housing units projected in 2008.

         11              I'd like to start by saying that

         12    worker safety has always been, and will

         13    continue to be, of high importance to the

         14    homebuilding industry.

         15              NAHB maintains a strong presence in

         16    the field of occupational safety and health

         17    by working with OSHA in the development of

         18    outreach programs, the publication of

         19    educational materials, and providing safety

         20    training for the homebuilding industry.  NAHB

         21    is steadfastly committed to improving the

         22    safety and health of the homebuilding




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          1    industry labor force.

          2              However, NAHB is concerned that

          3    this proposed rule will increase employer

          4    liability excessively on a per-employee basis

          5    for broad reach of noncompliance with OSHA

          6    personal protective equipment and training

          7    standards, and that the proposal does not

          8    contain any limitation on circumstances where

          9    citations can be issued on a per-employee,

         10    per-instance.

         11              The proposed rule merely states

         12    that violating a single standard "may be

         13    considered a separate violation" for each

         14    employee covered by the standard.  The

         15    addition of this proposed language in

         16    1926.20.F1 and 1926.F2 does not reflect or

         17    clearly state OSHA's intent to only issue

         18    separate violations in severe cases of

         19    flagrant or willful violations.

         20              NAHB believes that this language is

         21    just too broad and it will keep employers

         22    guessing as to when they might be cited and




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          1    how many citations that OSHA can issue

          2    because the Agency does not indicate under

          3    what circumstances per-instance, per-employee

          4    penalties may be cited.

          5              This unconstrained authority leaves

          6    open the possibility that OSHA will use

          7    per-instance, per-employee penalties in every

          8    instance where there is an alleged violation

          9    that affects more than one employee rather

         10    than just egregious citation cases, those in

         11    which the employer has knowingly and

         12    flagrantly disregarded its legal

         13    responsibilities for the safety and health of

         14    its own employees.

         15              We believe that unless OSHA

         16    includes language in the rule to limit per-

         17    employee, per-instance citations when they

         18    can be issued, this proposal will have a very

         19    large economic impact or effect on a very

         20    large number of small businesses, which would

         21    require OSHA to further evaluate.

         22              OSHA has determined that citing




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          1    employers on a per-instance, per-employee

          2    basis for violation of its standards is an

          3    integral part of its overall compliance

          4    strategy and serves to deter employers from

          5    flagrantly violating safety regulations.

          6              In addition, the Agency believes

          7    that the resulting large aggregate penalties

          8    improve the efficiency and effectiveness of

          9    the agency, and increase the impact of OSHA's

         10    limited enforcement resources.

         11              However, NAHB believes that

         12    excessive use of the heightened penalty will

         13    diminish its deterrent effect as firms come

         14    to believe that they will be cited under it

         15    regardless of what they do.  Although OSHA

         16    may have indicated its intent to follow the

         17    existing guidelines for issuing per-instance,

         18    per-employee violations, which is currently

         19    outlined in the directive CPL02-00-08 or

         20    CPL2.80, handling of cases to be proposed for

         21    violation-by-violation penalties, which is

         22    also known in layman's terms as the egregious




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          1    penalty policy, we have not found any written

          2    statement of this intent that OSHA plans on

          3    following this policy.  And in fact, this

          4    guideline is not even mentioned in the

          5    proposed rule or its preamble.

          6              Although NAHB does not necessarily

          7    recommend wholesale incorporation of 2.80

          8    into the proposed rule, the egregious penalty

          9    policy has several crucial protections from

         10    inappropriate and unjustified usage by the

         11    Agency.

         12              NAHB believes including some of the

         13    explicit restrictions from this policy in the

         14    rule would eliminate or reduce the economic

         15    impacts on small businesses in the

         16    homebuilding industry.

         17              NAHB believes that OSHA must

         18    clarify when an employer may be cited on a

         19    per-instance, per-employee basis, and NAHB

         20    strongly urges OSHA to limit per-employee,

         21    per-instance penalties to only egregious and

         22    flagrant violations.




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          1              OSHA's egregious penalty policy

          2    identifies those conditions which normally

          3    constitute a flagrant violation of the OSH

          4    Act or OSHA regulations such that violation

          5    by violation handling may be appropriate.

          6    NAHB believes that OSHA should limit

          7    per-instance, per-employer penalties to only

          8    circumstances surrounding the OSHA violations

          9    that meet the following criteria.

         10              1.  The violation is willful.

         11    Meaning if there is a violation in which the

         12    employer knew that a hazardous condition

         13    existed but made no reasonable effort to

         14    eliminate it, and in which the hazardous

         15    condition violated a standard regulation or

         16    the OSH Act.

         17              2.  The employer had actual

         18    knowledge of the specific serious worksite

         19    hazard.

         20              3.  The employer nevertheless

         21    intentionally or through plain indifference

         22    made no reasonable effort to eliminate the




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          1    known violation and either (a) the violation

          2    resulted in worker fatalities or large number

          3    of injuries, or (b) the employer's conduct

          4    amounts to clearly bad faith effort in the

          5    performance of its duties under the OSH Act.

          6              NAHB also believes that OSHA must

          7    clarify the language for actual knowledge

          8    used in the compliance directive 2.80.  OSHA

          9    should limit knowledge of a hazardous

         10    condition to only circumstances where an

         11    employer was --

         12              1.  Aware of the requirements of

         13    the OSH Act or the existence of the

         14    applicable standard or regulation, and --

         15              2.  Aware of a condition or a

         16    practice and violation of those requirements

         17    and did not abate the hazard.

         18              Additionally, on job sites where

         19    there is more than one employer, we believe

         20    that there may be ambiguity in the proposed

         21    language as to which employer may be cited.

         22    Therefore, NAHB believes that OSHA should




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          1    clarify the language that per-instance, per-

          2    employee citations and penalties will only be

          3    issued to the employer who has failed to

          4    provide PPE or training to each of his own

          5    employees.

          6              NAHB further believes that each

          7    employer is always responsible for the safety

          8    and health of their own employees, and each

          9    employer has the specialized and firsthand

         10    knowledge of how to protect their own people

         11    and run their operations safely.

         12              Requirements of actual knowledge

         13    and failure to correct will make the

         14    per-violation, per-employee doctrine

         15    essentially inapplicable to anyone but the

         16    workers' own employer anyway.

         17              Finally, NAHB urges OSHA to follow

         18    the Advisory Committee on Construction Safety

         19    and Health Recommendation on the proposal

         20    clarification of remedy for violation of

         21    requirements to provide personal protective

         22    equipment and training.  The ACCSH reviewed




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          1    and considered this proposal on May 15, 2008

          2    and the advisory body recommended that the

          3    Agency adopt the proposed standard, and

          4    further recommended that OSHA limit the

          5    application of the per-instance, per-employee

          6    penalties to only egregious or flagrant

          7    violations.

          8              Again, we believe it is important

          9    to specify the appropriate circumstances in

         10    the rule when a per-employee, per-instance

         11    citation may be issued or else it can be read

         12    as very broad grant of authority regardless

         13    of OSHA's present intentions.

         14              Later staff could view the policy

         15    very differently, and without limitations to

         16    the rule they would be free to apply it very

         17    differently, as well.

         18              In summary, placing restrictions on

         19    the applicability of per-instance, per-

         20    employee citations will not undermine the

         21    deterrent nature of the enforcement action

         22    and could substantially reduce the economic




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          1    affects to small businesses and entities, and

          2    therefore, NAHB strongly urges OSHA to limit

          3    per-instance, per-employee penalties to only

          4    egregious violations where an employer has

          5    knowingly and flagrantly disregarded its

          6    legal responsibilities for safety and health

          7    of its own employees.

          8              Once again, we thank you for the

          9    opportunity to share our concerns with you on

         10    this proposal, and we are certainly here and

         11    happy to answer any questions you may have at

         12    this time.  Thank you.

         13              JUDGE VITTONE:  Thank you, sir.

         14    May I have a showing of hands, please?  Who

         15    wants to question Mr. Matuga?  That's a

         16    first.  I see none.  You won the lottery

         17    today.

         18              MR. BAIRD:  Your Honor, at this

         19    time I would move to have Mr. Matuga's

         20    written testimony marked as Exhibit 74 and

         21    entered into the record.

         22              JUDGE VITTONE:  It will be made a




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          1    part of the record as Exhibit 74.

          2                   (Exhibit No. 74 was marked for

          3                   identification and received in

          4                   evidence.)

          5              JUDGE VITTONE:  Does the OSHA panel

          6    have any questions?

          7              MR. MADDUX:  Yes.

          8              JUDGE VITTONE:  For the record,

          9    just identify who you are, please.

         10              MR. MADDUX:  Jim Maddux from OSHA.

         11    In your comments and again in your testimony

         12    you essentially are urging us to open up our

         13    egregious policies and adjust them somewhat

         14    to be slightly more restrictive.

         15              And in one of those changes you

         16    suggest that it should only be used in

         17    situations where the hazard has already

         18    resulted either in large numbers of injuries

         19    or at least apparently one or more fatality.

         20              And this would preclude the use of

         21    our egregious policy for our injury and

         22    illness recordkeeping standard, which has




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          1    been one of the uses to which we have used

          2    it.

          3              And there's been, of course, a

          4    longstanding issue about the accuracy of

          5    these records.  I think just a couple of

          6    months ago there was a congressional hearing

          7    about the accuracy of the records, and this

          8    would seem to be an approach that would limit

          9    one of the enforcement tools that we've used

         10    to help ensure their accuracy.

         11              What should we do, do you think, if

         12    we give up that policy to kind of replace it

         13    and help make sure those records are

         14    accurate?

         15              MR. MATUGA:  I think what our

         16    comment was is that if the employer shows a

         17    bad faith in its duties to comply with the

         18    OSH Act, that the Agency would be well within

         19    its right to issue multiple citations per

         20    employee, per instance.  I think that our

         21    comment was that that would amount to the bad

         22    faith of the employer's duties.




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          1              MR. HOLLIDAY:  We would be

          2    concerned if this were the employer's first

          3    citation for bad records, but an employer who

          4    consistently keeps bad records is in a

          5    different position.

          6              JUDGE VITTONE:  Thank you.  Any

          7    other questions from the OSHA panel?

          8              MR. HOLLIDAY:  Judge, I wonder if I

          9    might add a remark here.

         10              JUDGE VITTONE:  Okay, Mr. Holliday.

         11              MR. HOLLIDAY:  Thank you.

         12              JUDGE VITTONE:  I assume it will be

         13    brief.

         14              MR. HOLLIDAY:  Andrew Holliday.  I

         15    just wanted to remind the panel that January

         16    20, 2009, there will be a new administration.

         17    Shortly thereafter there will presumably be a

         18    new Secretary of Labor under a new OSHA

         19    administrator.  And the administrator who

         20    sets policies, as far as I understand it, can

         21    change the egregious citation policy with the

         22    stroke of a pen.  This does not have the




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          1    force and effect of law, and it is not

          2    reviewable.

          3              Employers would feel much more

          4    secure and much more comfortable with a

          5    regulation like this if the policies that

          6    have been laid out as the consistent

          7    limitations and the consistent strategy of

          8    national review and egregious violations only

          9    were present in the law, rather than in

         10    Agency intention.  That's what we're looking

         11    for.

         12              JUDGE VITTONE:  All right.  Thank

         13    you.  Any response to that from the panel?  I

         14    see none.

         15              Thank you, gentlemen.  I appreciate

         16    your time today.

         17              Mr. Hirsch, Associated Building

         18    Contractors.  Mr. Hirsch, identify yourself

         19    please and who you represent.

         20              MR. HIRSCH:  Yes, my name is Robert

         21    Hirsch.  I'm the director of legal and

         22    regulatory affairs for Associated Builders




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          1    and Contractors.

          2              JUDGE VITTONE:  Thank you.  You may

          3    proceed.

          4              MR. HIRSCH:  Thank you, Your Honor.

          5    Good morning.  On behalf of the Associated

          6    Builders and Contractors, I want to thank the

          7    Occupational Safety and Health Administration

          8    for holding this hearing today and for the

          9    opportunity for ABC to appear here today to

         10    testify.

         11              As I said, my name is Robert

         12    Hirsch.  I'm ABC's director of legal and

         13    regulatory affairs.  I come here today with

         14    more than 30 years of safety and other

         15    regulatory experience, including having

         16    served more than six years as an enforcement

         17    attorney at the Interstate Commerce

         18    Commission.  I believe my experience has

         19    given me firsthand insight of the essential

         20    role that safety regulations play.

         21              More importantly, my experience has

         22    given me a firsthand appreciation of the




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          1    interplay and balance that needs to exist

          2    between a regulatory enforcement and the

          3    achievement of regulatory objectives.

          4              As ABC stated in our written

          5    comments, ABC and its members are strong

          6    proponents of workplace safety.  ABC also

          7    conceptually supports the NPRM's two stated

          8    objectives.

          9              One, to make clear that whenever an

         10    OSHA standard requires an employer to provide

         11    personal protective equipment or training to

         12    employees, the employer must do so for each

         13    employee who is subject to the requirement.

         14              And, two, to clarify that employers

         15    who demonstrate, I emphasize, flagrant

         16    disregard for safety and health may be

         17    subject to a separate penalty for each

         18    specific violation.

         19              As a preliminary matter in our

         20    written comments, ABC advised that we agree

         21    with U.S. Chamber's position that OSHA may

         22    not have the authority to do what has been




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          1    proposed.  I understand that the Chamber will

          2    be testifying later today and will discuss in

          3    detail its concerns in that regard.  For

          4    purposes of this testimony therefore, I will

          5    not get into that issue and will instead

          6    focus solely on the other grounds for ABC's

          7    opposition to the revised regulatory language

          8    that OSHA has proposed to adopt.

          9              Specifically, while the preamble to

         10    the NPRM, as well as the news release

         11    announcing the proposed rule, advised that

         12    OSHA intends to issue citations on a per-

         13    employee basis only to employers who are

         14    flagrant violators, that clearly is not what

         15    the proposed regulation says.

         16              As currently drafted, the

         17    language -- and I'm specifically talking

         18    about what affects construction -- as

         19    currently drafted, the language of proposed

         20    Section 1926.20(f)(1) merely states that

         21    "each failure to provide PPE to an employee

         22    may be considered a separate violation."




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          1              And likewise, proposed Section

          2    1926.20(f)(2) states only that each failure

          3    to train an employee may be considered a

          4    separate violation.

          5              Contrary to OSHA's claim that only

          6    flagrant violators will be impacted by the

          7    proposed changes, there is nothing in the

          8    proposed rule that would prevent OSHA from

          9    treating all PPE and training violations in

         10    the future as separate violations.  This is

         11    of grave concern to ABC.

         12              Contrary to what some may want the

         13    public to believe, the achievement of safety

         14    in the workplace and the imposition of a form

         15    of strict liability and force for technical

         16    and regulatory noncompliance are not

         17    synonymous.

         18              However, efforts to eliminate the

         19    carrot can only pose only the stick

         20    philosophy or pervasive, and there is a

         21    significant likelihood that the proposed rule

         22    will as a result have a number of unintended




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          1    consequences unless it is revised.

          2              OSHA's resources are finite.

          3    OSHA's enforcement resources will be best

          4    focused on the true bad actors.  The vast

          5    majority of employers are making every effort

          6    possible to provide their workers with safe

          7    working environments.

          8              It is important not only for OSHA

          9    to acknowledge this publicly from time to

         10    time, but also for OSHA to ensure that its

         11    enforcement policy continues to recognize and

         12    differentiate between the good faith efforts

         13    of employers to comply and those instances

         14    where good faith efforts do not exist.

         15              In ABC's written comments, we

         16    identified a number of potential cost

         17    consequences we believe the proposed rule

         18    will impose.  In addition to what we

         19    discussed in our written comments, there are

         20    several other potential consequences from the

         21    proposed rule that ABC is also concerned

         22    about.




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          1              Merit shop contractors are

          2    constantly defending themselves against

          3    organized labor's ongoing efforts to prevent

          4    merit shop contractors from participating in

          5    the marketplace.  Many of labor's efforts are

          6    packaged under the guise of promoting safety.

          7              One such activity is the corporate

          8    campaign where a union seeks to tarnish or

          9    otherwise undermine an employer's reputation

         10    through the publication of conflated or

         11    distorted information about the employer.

         12    Typically, this includes publishing

         13    misleading information about an employer's

         14    OSHA compliance record.

         15              The ability of OSHA to cite

         16    employers as a result of the proposed rule on

         17    a per-employee basis for any violation in the

         18    future, regardless of the nature or

         19    seriousness of the violation, would

         20    obviously, albeit inadvertently, play right

         21    into the hands of these types of attacks,

         22    thereby contributing to and aiding in these




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          1    unfair attacks.

          2              A similar union tactic utilizes

          3    local laws backed by labor that are

          4    euphemistically known as responsible

          5    contractor ordinances.  These ordinances

          6    impose a range of qualification criteria,

          7    including regulatory compliance criteria

          8    intentionally designed to prevent merit shop

          9    contractors from bidding on projects or from

         10    winning a project.

         11              While conceptually such ordinances

         12    can be beneficial, their objective has been

         13    to provide a means by which legitimate safety

         14    programs of employers can easily be miscast

         15    in order to disqualify merit shop

         16    contractors.

         17              For example, a responsible

         18    contractor ordinance currently being

         19    considered in St. Louis provides a good

         20    example of how the proposed rule could easily

         21    have unintended consequences if it is not

         22    revised.




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          1              Section 2 of that proposed

          2    ordinance would, among other things, require

          3    in relevant part that the contractor and all

          4    of its subcontractors performing work on a

          5    city project must be able to establish that

          6    within the past two years it has not been

          7    fined, cited, penalized by any local, state,

          8    or federal agency.  Under this law, a

          9    contractor would be summarily disqualified

         10    merely for being cited and with no regard

         11    having been given for whether the citation

         12    had merit.

         13              A slightly less egregious but

         14    equally onerous law was enacted by a county

         15    in Pennsylvania.

         16              Under that law, a contractor will

         17    be disqualified if during the previous three

         18    years it had been found in violation of any

         19    other law relating to its business, including

         20    an OSHA standard.

         21              Another proposed Pennsylvania

         22    ordinance would require the safety violations




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          1    to have been willful.  There are a multitude

          2    of responsible contractor ordinances that

          3    have been enacted or which are pending around

          4    the country and which have been patterned

          5    after one of the above examples.

          6              Why is this relevant?  It's

          7    relevant because OSHA's standard stated

          8    premise for the proposed rule was in effect

          9    to let the penalty fit the crime.  In other

         10    words, according to OSHA, the proposed rule

         11    was necessary to enable OSHA to cite flagrant

         12    violators of the PPE standard on a per-

         13    employee basis.

         14              While ABC may agree with this basic

         15    premise, we cannot support the regulatory

         16    language as it has currently been proposed.

         17    Unless revised, the current proposed language

         18    would give OSHA, as well as state and local

         19    governments, and organized labor, the ability

         20    to apply or to use the rule in a manner that

         21    OSHA has expressly stated is not its intent.

         22              That concludes my formal testimony.




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          1    I want to again thank OSHA for the

          2    opportunity to testify today.  I would be

          3    happy to answer any questions you may have.

          4              JUDGE VITTONE:  Thank you, Mr.

          5    Hirsch.  Let me have a showing of hands

          6    please.  Any questions by any of the

          7    participants?  I see none.  Thank you.

          8              Any questions from the OSHA panel?

          9              MR. MADDUX:  Yes, Mr. Hirsch, your

         10    written comments referenced additional cost

         11    concerns described by the Utility Contractors

         12    Association.  The utility contractors have

         13    not submitted any further comment.

         14              MR. HIRSCH:  I understand that.

         15              MR. MADDUX:  So I'd just like to

         16    ask you if in your post hearing comments you

         17    would make sure that you address any of those

         18    additional concerns.

         19              MR. HIRSCH:  I will.  Yes.

         20              MR. MADDUX:  Thank you.

         21              MR. PARSONS:  Mr. Hirsch, I have

         22    one quick question for you.  You spoke of




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          1    negative potential consequences.  Do you

          2    foresee any positive potential consequences

          3    of this proposed rule?

          4              MR. HIRSCH:  I think it could be

          5    positive to the extent that you specifically

          6    apply it to the flagrant.  I don't think

          7    anybody is really upset.  And when you look

          8    at the fact pattern that existed in Ho, I

          9    think clearly if I were in your shoes I would

         10    have been frustrated, too.

         11              I think the problem, and Mr.

         12    Holliday I think put his finger on it, we're

         13    not as concerned about the current state of

         14    affairs.  What we're really concerned about

         15    is what may happen next year.

         16              And the truth of the matter is that

         17    what we're really concerned about is that

         18    safety becomes politicized much more so than

         19    it has been in recent years.

         20              The fact is that employers are

         21    making an effort.  Now, clearly there are

         22    going to be some companies that are not going




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          1    to care, and you should by all means go after

          2    them.  But when companies are making a good

          3    faith effort, they ought to be recognized for

          4    that.  It is impossible, as much as anybody

          5    would like to see, to prevent accidents from

          6    happening across the board.  By their very

          7    nature, they will happen from time to time.

          8              The real problem that you have --

          9    and I'm not talking about the giving of the

         10    PPE -- what we're really talking about is the

         11    training.  And I've seen firsthand in terms

         12    of my experience both here in construction,

         13    as well as in the transportation community,

         14    countless times where somebody, an

         15    enforcement official, has gone out to a

         16    worksite and asked the question of an

         17    employee as to whether you were trained.  And

         18    the answer was no, when in fact they had been

         19    given ample training.

         20              Our concern is the fact that, who

         21    are you going to believe at that particular

         22    point?  And one of the things that we pointed




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          1    out, and this was a concern that NUCA had as

          2    well, in the way the regulation is being

          3    written is there are no specific details to

          4    give employers a clear understanding and

          5    appreciation in terms of what type of

          6    documentation they need to demonstrate that

          7    training has been given.

          8              I think if you look at it from the

          9    standpoint of putting yourselves in our shoes

         10    so we know exactly what the rules of the game

         11    are ahead of time, I think you're going to

         12    really do a lot to go out and promote the

         13    type of compliance that you're seeking to

         14    achieve.

         15              JUDGE VITTONE:  Thank you.  Any

         16    other questions?  Thank you, Mr. Hirsch.  We

         17    appreciate your time today.

         18              MR. BAIRD:  Your Honor, at this

         19    time I'd like to move to mark Mr. Hirsch's

         20    written testimony as Exhibit 75 and have it

         21    admitted into the record.

         22              JUDGE VITTONE:  It will be marked




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          1    as 75 and made a part of the record.

          2                   (Exhibit No. 75 was marked for

          3                   identification and received in

          4                   evidence.)

          5              JUDGE VITTONE:  Ms. Bor and Mr.

          6    Trahan -- Chris Trahan.  I'm sorry, Ms.

          7    Trahan.  Building and Construction Trades

          8    Department.  Good morning.  Please identify

          9    yourselves for the record and who you

         10    represent.

         11              MS. TRAHAN:  Good morning.  I'm

         12    Chris Trahan, an industrial hygienist with

         13    the Building and Construction Trades

         14    Department, AFLCIO.

         15              MS. BOR:  And I'm Victoria Bor,

         16    counsel to the department.

         17              MS. TRAHAN:  We have a few bits of

         18    information we wanted to share with you.

         19    Just personally I wanted to talk a little bit

         20    about training.  I'm trained as an industrial

         21    hygienist.  I started my career as a

         22    compliance officer up in New York for the




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          1    state program up there.  And one of the

          2    things I do now is manage training programs

          3    where we try to help move training out

          4    through the building trades.

          5              And in that regard, we wanted to

          6    just go on the record saying that the

          7    Building Trade supports what OSHA is trying

          8    to do here to clean up some of the language

          9    which disallowed you to apply a policy to

         10    really bad actors.

         11              It's very clear, I think, what the

         12    standards mean that when training or personal

         13    protective equipment is called for, it's

         14    required for all employees on the job.  And

         15    each employee should be issued the

         16    appropriate equipment.

         17              And that we really don't know that

         18    the changes in the language are necessary,

         19    but in lieu of the Review Commission's

         20    decision with the particular language

         21    variations, you know, we do support what

         22    you're doing, and do hope that it does apply




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          1    where it needs to apply.

          2              And I just want to reiterate, too,

          3    that I believe that in the field people do

          4    understand this, that you don't have a

          5    training program that you actually train all

          6    employees.  And issuing PPE to one or two of

          7    the employees is not really compliance with

          8    what's intended by OSHA in these regulations.

          9              I'm just looking over our notes.  I

         10    don't want to repeat the same things over and

         11    over again.

         12              So, I just want to raise one more

         13    issue.  Or two more issues.  We wanted to

         14    ensure that the intent here and to, you know,

         15    give our support to OSHA, and that the intent

         16    doesn't just cover respirators and asbestos

         17    work, but it does, in fact, cover personal

         18    protective equipment where it's needed on the

         19    job as a whole.  And training where it's

         20    required in particular OSHA standards as a

         21    whole.

         22              And just the last thing I wanted to




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          1    mention was that in my understanding, ACCSH

          2    did not issue a recommendation to OSHA in

          3    that May 2008 meeting when this subject was

          4    discussed.

          5              OSHA asked ACCSH and passed this

          6    proposed regulation by ACCSH as you're

          7    obligated to do.  And ACCSH did submit a

          8    motion that was put forth with two parts.

          9    And the two parts were, you know, we

         10    recommend that OSHA go ahead and publish

         11    this, but only applied to egregious

         12    situations.

         13              But then my understanding is that

         14    motion was modified to eliminate the

         15    reference to egregious situations because I

         16    believe that some folks on the ACCSH

         17    Committee understood that it's the Agency's

         18    responsibility to do enforcement and to

         19    conduct inspections, and to apply the

         20    standards under their policies.

         21              So my understanding is that final

         22    motion came out of that May meeting that did




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          1    not include a reference to limiting or

          2    recommending that OSHA limit things to the

          3    egregious side.

          4              So, unless we have anything else,

          5    that's it for now.

          6              MS. BOR:  Actually, just to follow

          7    up on Chris's point, to that respect I'd like

          8    to submit to the record the minutes of the

          9    May 15th meeting of the Advisory Committee on

         10    Construction Safety and Health.

         11              And on page 9 of these minutes, it

         12    states that although a motion was made to

         13    recommend that OSHA incorporate its egregious

         14    penalty policy into the standard, that part

         15    of the motion was defeated.

         16              And the recommendation that was

         17    passed by the Committee was simply to adopt

         18    the proposal as published in the Federal

         19    Register.

         20              JUDGE VITTONE:  I may be the only

         21    one in the room, but what does that acronym

         22    mean?




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          1              MS. BOR:  Oh, I'm sorry.  It's the

          2    Advisory Committee on Construction Safety and

          3    Health, ACCSH.

          4              JUDGE VITTONE:  ACCSH.

          5              MS. BOR:  Right.

          6              JUDGE VITTONE:  Okay.  Thank you

          7    very much.  Anything else?

          8              MR. BAIRD:  Judge, perhaps at this

          9    time I'll just move to have that marked as

         10    Exhibit 76 and admitted into the record.

         11              JUDGE VITTONE:  All right.  It'll

         12    be made a part of the record.  It's the

         13    minutes of the 15-16 May 2008 meeting of the

         14    Advisory Committee on Construction, Safety,

         15    and Health, apparently held here at the

         16    Department of Labor in Washington, D.C.

         17                   (Exhibit No. 76 was marked for

         18                   identification and received in

         19                   evidence.)

         20              MS. BOR:  And Your Honor, this is

         21    currently in OSHA's docket as OSHA-2008-

         22    0013-0022.




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          1              JUDGE VITTONE:  Now it's in twice.

          2    Showing of hands, please.  Any questions for

          3    this panel?  You're making it easy on me

          4    today.

          5              Any questions from the OSHA panel?

          6    Thank you.  Appreciate your time.

          7              According to the agenda we're

          8    supposed to break for lunch.  Is Mr. Killough

          9    here?  K-i-l-l-o-u-g-h?

         10              MR. KILLOUGH:  Yes, sir.

         11              JUDGE VITTONE:  All right, Mr.

         12    Killough, would you come forward?  Are you

         13    prepared to go forward now, sir?

         14              MR. KILLOUGH:  Yes, I am.

         15              JUDGE VITTONE:  Good.  Take one of

         16    these chairs, please.  Identify yourself for

         17    the record and the organization you're

         18    representing.

         19              MR. KILLOUGH:  My name is Ken

         20    Killough.  I am representing the National

         21    Maritime Safety Association today.

         22              Our group's members represent the




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          1    long shoring and marine terminals industry,

          2    Regulations 1917 and 1918.  Our members work

          3    East Coast, Gulf, and West Coast of the

          4    United States, and we move about 90 percent

          5    of the nation's cargo in short terms, and we

          6    load and unload cargo ships.

          7              We found the proposed rule does not

          8    clarify if OSHA intends all PPE and training

          9    regulations be considered flagrant to impose

         10    the per-employee penalties.  Our maritime

         11    regs 17 and 18 are vertical regulations, and

         12    our training and PPE regs are pretty much

         13    scattered about those two standards where we

         14    don't have specific sections.

         15              We would prefer to see OSHA not add

         16    new paragraphs to a training or PPE section.

         17    We'd rather see the addition or the change

         18    into the affected rule to lessen confusion.

         19    The employer payment for PPE was handled the

         20    same way, and we just don't find it's clear

         21    in how people now interpret those rules.

         22              The rules need to be clear for OSHA




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          1    compliance officers, and also the safety

          2    professional working in the field.  Sometimes

          3    new people, people not well versed in OSHA,

          4    do not have the proper interpretations and,

          5    you know, citations can sometimes just get

          6    lost.

          7              We had a citation issued in the

          8    maritime industry on the west coast last year

          9    involving our training regulation, which is

         10    power and industrial truck, which was

         11    referenced into the maritime regulations.

         12              And there was a citation issued

         13    that was really merely an issue over the

         14    interpretation of the reg.  It was not a

         15    single act by the employer to say that was

         16    wrong or it was not an act of an employee or

         17    a group of employees.  But really it

         18    challenged the reg in its entirety.

         19              And we're working now to get that

         20    corrected through the Maritime Advisory

         21    Committee on Safety and Health.  But we could

         22    see changing your training regulations to the




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          1    way that we work in the maritime industry.

          2              Our training programs are set up

          3    for hundreds and thousands of people.  And if

          4    this regulation is not clear, we can see that

          5    maybe getting interpreted in the wrong ways

          6    and creating some drawn-out administrative

          7    procedures, and actually maybe even

          8    increasing litigation.

          9              JUDGE VITTONE:  Anything else, sir?

         10              MR. KILLOUGH:  Those are my

         11    comments.

         12              JUDGE VITTONE:  Thank you very

         13    much.  May I have a showing of hands, please?

         14    Any questions for Mr. Killough?  I see none.

         15              Any questions from the OSHA panel?

         16    Sir, thank you for coming today.

         17              Mr. Sapper?

         18              MR. SAPPER:  Good morning, Your

         19    Honor.  And thank you.  My name is Art

         20    Sapper.  I appear today on behalf of the

         21    Chamber of Commerce of the United States.

         22              The Chamber urges OSHA to forego




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          1    adoption of the proposed rule, not because it

          2    doesn't address a problem, but because OSHA

          3    has no authority to adopt it.  Our position

          4    is basically that stated in our written

          5    comments, so I'll touch on only a few points

          6    here.

          7              The stated purpose of these

          8    amendments is not to impose, to change, or to

          9    clarify substantive compliance duties of

         10    employers.  The preamble for it rightly

         11    acknowledges this.

         12              For example, it acknowledges that

         13    no one has ever suggested that a standard

         14    imposes compliance duties as to fewer than

         15    all the employees that it covers, or that

         16    OSHA could not require abatement as to all

         17    employees.

         18              The preamble also correctly states

         19    that there is no substantive compliance

         20    difference between the current noise training

         21    standard, which requires training of "all

         22    employees," and the proposed version, which




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                                                            75

          1    would require training of each employee.

          2              So the only purpose of the proposed

          3    amendment is to make possible the assessment

          4    of per-employee penalties.  But that is not

          5    within OSHA's rulemaking authority.  OSHA's

          6    only statutory rulemaking authority is to

          7    state the substantive compliance duties of

          8    employers.

          9              Nothing in Section 38 or Section 6B

         10    of the OSH Act authorizes OSHA to say

         11    anything in standards about remedies, or

         12    penalties, or to manipulate the wording of

         13    standards for the purpose of affecting

         14    sanctions.

         15              The proposal is therefore not

         16    authorized by the OSH Act, and it is actually

         17    forbidden by the Administrative Procedure

         18    Act, the sanctions provision of the

         19    Administrative Procedure Act, which deprives

         20    agencies of the authority to prescribe

         21    sanctions.  So, a review in court will strike

         22    this down.




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          1              I might add a comment was made by a

          2    member of the OSHA panel that OSHA has noted

          3    that various executive orders and statutes

          4    don't appear in OSHA's eyes to require an

          5    estimate of the increase in penalties.

          6              And the most likely reason for that

          7    is that neither the president nor Congress

          8    believes that OSHA has the authority to even

          9    regulate that point.  And that's why they

         10    don't require any economic estimates on it.

         11              There is also some thought in the

         12    preamble that the rule changes are merely

         13    interpretive.  Well, if that point is

         14    relevant, it's just wrong.  If the Review

         15    Commission is right, that a standard's

         16    wording can affect per-employee penalties,

         17    and if the proposal would change the wording

         18    to alter that result, and thus increase

         19    penalties, then the change in wording is

         20    substantive.

         21              Stated another way, if the Agency

         22    is right that its proposal is "remedial,"




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          1    then it cannot possibly be interpretive.

          2              There is a problem here as I said

          3    before.  So the question is what should the

          4    Agency do now?

          5              The origin of the problem before

          6    the Agency is the idea that language in a

          7    standard as opposed to the substantive

          8    "condition" or "practice" that the standard

          9    forbids or requires can authorize per-

         10    employer penalties.

         11              That is a fallacy, but the fallacy

         12    did not originate with OSHA.  It's not a

         13    problem of OSHA's making.  The fallacy

         14    originated with the Review Commission.  And

         15    that tells us where this problem needs to be

         16    fixed -- at the Commission.

         17              The answer to the problem is not

         18    for OSHA to assert power that it lacks.

         19              Mark Twain once said, "Always do

         20    right.  This will gratify some people and

         21    astonish the rest."

         22              Too often government officials have




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          1    asserted power knowing that their legal

          2    authority is dubious or weak.  It would set

          3    an example that citizens and officials alike

          4    would admire and emulate if this government

          5    agency were to say, we shall not act.  Our

          6    authority is lacking or weak.  There is

          7    another way.

          8              Thank you, Your Honor.

          9              JUDGE VITTONE:  Thank you, Mr.

         10    Sapper.  Any hands for Mr. Sapper?  I see no

         11    questions.

         12              OSHA panel, any questions?  Mr.

         13    Burt.

         14              MR. BURT:  I just wanted to clarify

         15    an earlier answer, which was not an attempt

         16    to interpret the Executive Order or the Reg

         17    Flex Act, but a statement that we had not in

         18    the past taken account in penalties.

         19              JUDGE VITTONE:  Any response?

         20              MR. SATTER:  No.  I know that the

         21    gentleman is not an attorney, and I

         22    understand his qualification.




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          1              JUDGE VITTONE:  Thank you, sir.

          2    Moving right along.  Mr. Kojola, Ms.

          3    Rhinehart.

          4              MR. KOJOLA:  After the actions of

          5    the last week it seems that the growth

          6    industry in this town will probably be

          7    attorneys as usual, economists certainly, and

          8    accountants.

          9                   (Laughter)

         10              JUDGE VITTONE:  Would you identify

         11    yourselves please?

         12              MS. RHINEHART:  Sure, my name is

         13    Lynn Rhinehart.  I'm associate general

         14    counsel at the AFLCIO.

         15              MR. KOJOLA:  And my name is Bill

         16    Kojola.  I'm the industrial hygienist for the

         17    AFLCIO.

         18              MS. RHINEHART:  Good morning.

         19    We're happy to be here to talk briefly about

         20    OSHA's proposed rule.  We will, in fact, be

         21    very brief.  In our view this is a very

         22    simple, and straightforward, and narrow




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          1    rulemaking, so much so, frankly, that there's

          2    not that much to say about it or, as we've

          3    seen, ask questions about this morning.

          4              We should be clear about what this

          5    rulemaking is about and is not about.  And as

          6    we understand it, and as I believe the

          7    comments of the panel this morning confirmed,

          8    this rulemaking is really not about OSHA's

          9    overall enforcement policy.

         10              It's not really about the egregious

         11    policy or OSHA's penalties.  It's not about

         12    OSHA's inspection procedures.  It's not about

         13    how OSHA makes charging decisions.  It's not

         14    about employer defenses to OSHA citations.

         15              As we understand it, this

         16    rulemaking is simply about codifying OSHA's

         17    longstanding view that when training or

         18    personal protective equipment is required

         19    under an OSHA standard, employers are

         20    required to provide that training or personal

         21    protective equipment to each employee exposed

         22    to the hazard.




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          1              Even though this has consistently

          2    been the Agency's view, OSHA apparently has

          3    decided to do this rulemaking to make

          4    employers' compliance obligations crystal

          5    clear and remove any doubt about those

          6    obligations.

          7              We think this will be beneficial in

          8    ensuring that employers understand their

          9    obligations, in ensuring that workers are

         10    given the protection they deserve, and in

         11    helping to ensure that OSHA's citations when

         12    employers violate these obligations are not

         13    struck down by the Review Commission or

         14    reviewed in courts because of slight language

         15    differences in OSHA's rules.

         16              Frankly, we thought these issues

         17    were plenty clear, even without this rule

         18    because it's hard to see how an employer

         19    could be in compliance with OSHA's rules on

         20    training or personal protective equipment by

         21    providing only some employees exposed to the

         22    hazard with a respirator, with personal




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          1    protective equipment, or with training.  And

          2    Mr. Kojola will elaborate on this point in

          3    just a minute.

          4              Employers are obligated under the

          5    OSHA Act to provide each of their employees

          6    safe and healthful working conditions, and

          7    it's difficult to see how they can accomplish

          8    this without providing the necessary training

          9    or PPE to each employee who is exposed to the

         10    hazard.

         11              We did make one suggestion in our

         12    written comments for further clarifying the

         13    text in the general introductory paragraphs

         14    that OSHA is proposing to make part of its

         15    overall rules so that it's even clearer that

         16    this obligation to provide PPE to each

         17    affected employee applies to all types of

         18    PPE.

         19              As we read the preamble to the

         20    proposed rule, there seemed to be a very

         21    heavy emphasis on one type of PPE, and that

         22    would be respirators.  So we proposed some




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          1    language to make crystal clear that the

          2    obligation to provide PPE to each affected

          3    employee refers to all types of PPE,

          4    including but not limited to respirators.

          5              So, in sum, we support this

          6    rulemaking.  We think it's a simple,

          7    straightforward proposal that does not pave

          8    new ground but simply clarifies what an

          9    employer's compliance obligations have been

         10    all along.  We urge OSHA to adopt the

         11    proposed rule with our suggested

         12    modifications in final form without delay.

         13              Now, Mr. Kojola will elaborate on

         14    the importance of providing each affected

         15    employee with personal protective equipment

         16    or training.

         17              MR. KOJOLA:  Thank you, Lynn.  An

         18    employer's compliance responsibility to

         19    provide required PPE and training under an

         20    OSHA standard to each and every worker

         21    exposed to the hazard is really abundantly

         22    clear.  Doing something less than ensuring




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          1    that each employee has the required training

          2    and PPE will leave some workers unprotected.

          3              Items of PPE are individual in

          4    nature.  If you're a worker exposed to a

          5    hazard requiring PPE, you're not protected if

          6    only your exposed coworkers have the PPE and

          7    you do not.  And safety and health training

          8    is individual in nature, too.  You're not

          9    trained merely because your exposed coworkers

         10    are.

         11              In workplaces, this compliance

         12    obligation means that every worker -- not

         13    some or most -- must be provided with

         14    required PPE and training by the employer.

         15    The failure of employers to meet their

         16    compliance responsibility for providing

         17    required PPE and training to each and every

         18    employee will leave unprotected workers at

         19    risk of experiencing injuries, illness, or

         20    death.

         21              I wanted to provide three very

         22    simple but clear examples to illustrate our




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          1    point.  Workers exposed to airborne

          2    concentrations of lead in excess of the PEL

          3    are required to have respiratory protection.

          4    To ensure protection against the adverse

          5    affects of inhaling lead, each individual

          6    worker exposed to lead in excess of the PEL

          7    must have his or her own respirator that has

          8    been properly selected and fit tested.

          9              Failure to provide a required

         10    respirator to every exposed worker can cause

         11    permanent nerve damage in those workers

         12    inhaling lead who are not provided with a

         13    respirator.

         14              Let me give you a second example.

         15    Workers exposed to cutting hazards when using

         16    sharp knives in chicken processing plants,

         17    for example, are provided with wire mesh

         18    gloves.

         19              Unless each worker exposed to the

         20    cutting hazard is provided with the gloves,

         21    those who are not are subject to experiencing

         22    serious and potential disabling cuts to their




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          1    hands.

          2              And our third example.  When

          3    workers are exposed to airborne asbestos in

          4    excess of the PEL, they are required to

          5    receive training that covers the engineering

          6    controls, work practices, and clean up

          7    procedures the employer is using to control

          8    asbestos exposure.

          9              Workers not trained in

         10    understanding these critically important

         11    control methods could perform work in a

         12    manner that circumvents these controls,

         13    causing exposure to asbestos that could

         14    result in the untrained worker developing

         15    asbestosis, mesothelioma, or lung cancer.

         16              And I think those are very clear,

         17    simple examples of what this regulation means

         18    and what the clarification language means in

         19    demonstrating the necessity to ensure that

         20    the employer complies with that

         21    responsibility to provide the required PPE to

         22    each and every one of their employees.




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          1              And I'd like to reiterate that it's

          2    in that regard that we support OSHA's

          3    proposed rule with the modifying language

          4    that we submitted in our written comments.

          5              JUDGE VITTONE:  Anything else?

          6              MR. KOJOLA:  I think we're done.

          7              JUDGE VITTONE:  Okay.  Thank you.

          8    Any questions for this panel?  I see no

          9    hands.

         10              Any questions from the OSHA panel?

         11    No questions.

         12              MS. RHINEHART:  Thank you.

         13              JUDGE VITTONE:  Thank you.  Mr.

         14    Egeler?

         15              MR. EGELER:  Yes.

         16              JUDGE VITTONE:  Come forward,

         17    please.  Please identify yourself and who

         18    you're representing.

         19              MR. EGELER:  Good morning.  My name

         20    is Dan Egeler.  I'm assistant general counsel

         21    for Con-way.

         22              Good morning, Judge Vittone,




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          1    panelists, participants, and guests.  I want

          2    to thank you for the opportunity to

          3    participate in this hearing.

          4              Con-way is involved in the

          5    trucking, transportation, and logistics

          6    industry.  We have about 25,000 employees

          7    throughout the United States.

          8              I would first like to state that

          9    Con-way adopts and supports the comments

         10    offered by the United States Chamber of

         11    Commerce as I believe it is an accurate

         12    reflection of the state of the law with

         13    respect to the legality of the proposed rule.

         14              It's well known, OSHA has

         15    prescribed duties to employers to provide

         16    appropriate PPE and training with respect to

         17    PPE.  Should the employer fail to comply with

         18    the standard, it has violated the duty only

         19    once.  It hasn't violated it for every

         20    employee that failed to comply with the

         21    standard, because most often the

         22    circumstances are the employee fails.  It's




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          1    not that the employer fails to provide the

          2    training or the PPE to the employee.

          3              The proposed rule effectively

          4    penalizes the employer multiple times for one

          5    infraction.  There is no limitation within

          6    the language to make it apply to only

          7    egregious circumstances as OSHA has

          8    indicated.  And for that, that's a problem.

          9              Give an example.  In the

         10    transportation industry we have use of a lot

         11    of powered industrial trucks.  Without

         12    getting into a legal dissertation about

         13    seatbelts on forklifts, OSHA has taken the

         14    position that seatbelts are a form of PPE on

         15    a forklift.

         16              Some employees absolutely just

         17    simply refuse to wear seatbelts on forklifts.

         18    The employer can provide all the training

         19    necessary.  Obviously, provides the PPE

         20    because seatbelts are actually attached to

         21    the forklift.  But employee just simply

         22    refused to ear it.




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          1              And I liken it to just about every

          2    state in the Union has a mandatory seatbelt

          3    law for vehicles.  But the best the states

          4    can do -- and here's a penalty that actually

          5    is assessed directly to the driver of the

          6    vehicle -- but the best the states can do is

          7    get compliance of about 85 to 90 percent of

          8    people actually wearing seatbelts.

          9              The way the proposed regulation is

         10    written, with the language as it exists right

         11    now, an employer who has a lot of employees

         12    using seatbelts on forklifts are going to be

         13    faced with the scenario of they're going to

         14    be no different than driving their car on the

         15    road.  Eighty-five to 90 percent will comply,

         16    but another 10 to 15 percent will say I'm not

         17    going to wear a seatbelt.  I don't wear it in

         18    my car.  I'm not going to wear it on the

         19    forklift.

         20              And under the proposed regulation,

         21    the employee could face a possible multiple

         22    number of penalties based upon perhaps 10




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          1    percent of the employees not wearing

          2    seatbelts on a forklift.  And I give that as

          3    an example.

          4              Again, without a limitation in the

          5    proposed language that limits it to flagrant,

          6    egregious, or other pronouns, adjectives,

          7    types of circumstances, this language, I

          8    think, fails in accomplishing what OSHA

          9    wishes it to do.

         10              If OSHA is concerned about

         11    compliance with the employer, it has already

         12    in place mechanisms to encourage employers to

         13    comply with the regulation.  It already has

         14    repeat violations, willful violations, even

         15    criminal penalties in those egregious

         16    circumstances.  And I don't believe that this

         17    language helps to clarify as proposed by

         18    OSHA.  I think, in fact, it actually operates

         19    as additional penalties.

         20              In sum, if OSHA wishes to codify

         21    the rule so that we are talking about

         22    flagrant or egregious situations, then this




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          1    language that's proposed right now has to

          2    change.

          3              Because the way you give the

          4    literal interpretation to the language as

          5    it's proposed is any number of observed PPE

          6    failures could result in a citation for each

          7    one of those failures.  There's nothing in

          8    the rule that talks about it being applied to

          9    those egregious or flagrant situations.

         10              Bad cases make bad law.  You know,

         11    the OSHA reaction to the whole case is cause

         12    for proposed regulation, it just simply is

         13    bad language.  And I urge OSHA to reconsider

         14    the proposed language.  And if it wishes to

         15    go down a path of accepting or utilizing this

         16    language only in the egregious circumstances,

         17    then that language change has to be made.

         18    And I'd welcome any comments.

         19              JUDGE VITTONE:  Thank you, sir.

         20    Can I see a showing of hands, please?  Any

         21    questions for the witness?  I see none.

         22              Any questions from the OSHA panel?




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          1              Thank you, sir.

          2              MR. EGELER:  Thank you.

          3              JUDGE VITTONE:  Paree Roper.  Mr.

          4    Roper.

          5              MR. ROPER:  Your Honor, members of

          6    the panel.  Good morning, everyone.  My name

          7    is Paree Roper and I'm the industry

          8    specialist for the Public Risk Management

          9    Association, otherwise known as PRMA.  We're

         10    located in Alexandria, Virginia.  And for

         11    over 30 years we have provided timely,

         12    relevant, and practical education and

         13    training for public sector risk management

         14    professionals.  Our organization is comprised

         15    of more than 1,800 public entities, local

         16    governments of various sizes, budgets, and

         17    complexities.

         18              PRMA acts as a premier national

         19    advocate for the interests of public risk

         20    management professionals and their entities.

         21    Members of the Public Risk Management

         22    Association include most types and sizes of




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          1    public entities, some of which are in OSHA

          2    plan states, and some of which are not.

          3              The proposed rulemaking raises a

          4    number of concerns for our member entities.

          5    I will focus on three of these concerns in

          6    the time remaining.

          7              The first concern is that the

          8    proposed rule could have a significant impact

          9    on the budgets of public entities.  Existing

         10    rules are clear about an employer's

         11    responsibilities.  PRMA and its members fully

         12    support OSHA's goal of creating safe and

         13    healthy workplaces.  Our concern is about how

         14    large a penalty OSHA can assign for failing

         15    to comply with a standard or any component of

         16    the standard.

         17              Even if the proposed rulemaking

         18    does not impose new responsibilities or

         19    significant costs upon employers for

         20    compliance, it still could have a significant

         21    financial impact upon public employers of all

         22    types and sizes.  PRMA's primary concern




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          1    centers around the number of violations OSHA

          2    can issue out of any one occurrence.

          3              For example, an employer has 1,000

          4    employees with respiratory risk, and in the

          5    course of establishing its respiratory

          6    program, it fails to properly identify and

          7    train on a particular hazard.

          8              Is this considered one violation or

          9    1,000 violations?  How many separate

         10    penalties could be assessed on any one cited

         11    occurrence?  If an employer had a prior minor

         12    respiratory protection violation, the cost of

         13    the potential penalty could become

         14    exorbitant.

         15              In seeking compliance through

         16    excessive penalties, OSHA's new rule could

         17    place a burden on public entity taxpayers

         18    that outweighs the seriousness of the

         19    violation.  This potential burden could

         20    adversely affect public entities of all

         21    sizes.

         22              OSHA points out in its discussion




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          1    that its penalty policy restricts penalty

          2    stacking to egregious cases.  In its Notice

          3    of Proposed Rulemaking, OSHA points to the Ho

          4    case for a particularly flagrant situation.

          5    OSHA's argument is that it needs the ability

          6    to assess larger penalties or employers will

          7    simply choose to ignore employee safety and

          8    pay penalties when they are caught.

          9              This logic incorrectly assumes that

         10    larger penalties will by themselves prompt

         11    compliance, and that Congress intended for

         12    employers to be subjected to the possibility

         13    of millions or even hundreds of millions of

         14    dollars in penalties from a single violation.

         15              The second concern deals with the

         16    lack of due process.  PRMA is concerned that

         17    OSHA has not considered the full impact of

         18    the proposed rulemaking upon an entity's

         19    right to due process.  The system that

         20    permits only 15 days to respond to a notice

         21    or lose all rights to review by OSHA, a state

         22    regulatory body, or the courts, is less than




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          1    adequate.  Due process demands much more when

          2    the penalties can escalate as quickly and to

          3    the levels allowable under the proposed rule.

          4              The third and final concern

          5    examines the potential effects on states that

          6    may want to develop their own occupational

          7    safety and health plans.  OSHA's proposed

          8    rulemaking could serve as a deterrent to

          9    states choosing to become an OSHA-planned

         10    state because they may be subjecting

         11    themselves and their political subdivisions

         12    to prohibitive substantial financial

         13    penalties for a good faith effort towards

         14    compliance.

         15              Many public risk managers would

         16    like to see their states adopt OSHA standards

         17    and add the regulatory compliance argument to

         18    their toolbox.  However, this rulemaking's

         19    impact has the potential of negatively

         20    impacting comprehensive OSHA compliance

         21    efforts.

         22              PRMA appreciates the challenges




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          1    faced by OSHA as it strives to protect the

          2    safety and well-being of our nation's

          3    workers.  We support OSHA's desire to provide

          4    rules that will create the safest environment

          5    possible for public entities' employees.  We

          6    ask for dialogue so that OSHA may utilize

          7    public risk management professionals as key

          8    resources in the formulation of policy and

          9    protocols.

         10              PRMA welcomes the opportunity to

         11    establish a go-to relationship as OSHA

         12    formulates new regulatory guidelines for the

         13    health and safety of the nation's

         14    communities.

         15              Thank you very much for your time.

         16              JUDGE VITTONE:  Thank you, sir.

         17    Any questions for Mr. Roper?  I see no hands.

         18              Any questions from the OSHA panel?

         19              MR. MADDUX:  Yes.  First of all,

         20    I'd like to point out that the Notice of

         21    Proposed Rulemaking was published on August

         22    19th with comment due by September 18th,




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                                                            99

          1    which is a 30-day comment period, not a

          2    15-day comment period as suggested by the

          3    presenter.

          4              The question that I'd like to ask

          5    is in your statement you say that states will

          6    be disinclined to develop state OSHA

          7    programs, what we call state plans, as a

          8    result of this rulemaking.  Are you aware of

          9    any states that are currently state plans --

         10    there are 26 of them, I believe -- that are

         11    reconsidering their state plan status as a

         12    result of this rulemaking?

         13              MR. ROPER:  I am not aware of that

         14    at this moment, but our concern is that we do

         15    push this as a potential tool for risk

         16    managers and for safety and environmental

         17    health professionals.  And it's something

         18    that we would like to see.  We would love to

         19    see every single state have its own OSHA

         20    program.

         21              But we're concerned that this rule

         22    would, in fact, squash that conversation.




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          1              MR. MADDUX:  Thank you.

          2              JUDGE VITTONE:  Any other questions

          3    for the panel?

          4              MR. BAIRD:  One other question,

          5    Your Honor.  Was there any information that

          6    you were not able to obtain in the time

          7    allowed that you wanted to present to OSHA on

          8    this matter?

          9              MR. ROPER:  No, there is not.

         10              MR. BAIRD:  Thank you.

         11              JUDGE VITTONE:  Thank you, Mr.

         12    Roper.  Ms. Abrams?

         13              MS. ABRAMS:  Good morning, Your

         14    Honor.  Good morning, panel and members of

         15    the public.

         16              My name is Adele Abrams and I am an

         17    attorney and safety professional speaking on

         18    behalf of the American Society of Safety

         19    Engineers.  In addition to being their

         20    national representative, I am also a

         21    professional member of ASSE's construction,

         22    mining, and consultants practice specialties.




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          1              ASSE has 33,000 members across the

          2    United States and internationally.  And we

          3    did previously submit written comments on

          4    this.  I do not have a separate handout for

          5    my oral testimony and will try to be brief

          6    here as the cleanup batter on the prepared

          7    agenda.

          8              With this rule we recognize that

          9    OSHA is seeking to harmonize its respiratory,

         10    its PPE, and its training provisions

         11    throughout the general industry construction

         12    and other standards, to state explicitly that

         13    the employer must provide each employee an

         14    appropriate respirator, for example, and

         15    implement programs for each employee.  We

         16    also understand that this is seeking to

         17    correct or clarify the requirements and OSHA

         18    citation and enforcement abilities in the

         19    wake of the Ho decision.

         20              While the need for harmonization of

         21    these provisions is clear, and we do support

         22    consistency in the language so that there




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                                                           102

          1    will not be any confusion, ASSE is concerned

          2    that the consequences of these changes may

          3    result in unnecessarily punitive actions

          4    toward employers whose overall commitment to

          5    protecting the health and safety of its

          6    workers has been demonstrated.  In other

          7    words, if you suddenly have a new big hammer,

          8    everything may start looking like a nail.

          9              No doubt these provisions that

         10    you're proposing will strengthen OSHA's

         11    ability to fine employers heavily for

         12    violations of existing PPE and training

         13    standards by exposing them consistently to

         14    per-employee penalties.  And if these are

         15    pursued, each failure to provide PPE or

         16    training to a covered worker could constitute

         17    a separate violation subject to a penalty of

         18    up to $70,000 for each infraction.  And this

         19    can obviously add up very quickly, and

         20    especially have an impact as already heard on

         21    some of the small employers.

         22              Certainly, the current approach,




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                                                           103

          1    even before Ho, had been to group citations

          2    into a single violation.  And our

          3    understanding is that OSHA has appropriately

          4    used restraint in application of per-employee

          5    citations in the past as evidenced by the

          6    criteria in the CPL that has already been

          7    referenced by a few of the witnesses.

          8              This is not referenced, of course,

          9    in the preamble to this rule, and that is a

         10    concern that there is no framework within

         11    which this would be applied if you read the

         12    plain language of the preamble, and the plain

         13    language of the standard as it is proposed.

         14              We believe that flagrant violators

         15    should be subject to egregious penalties.

         16    The increased impact of this penalty approach

         17    can help deter continued flagrant violations

         18    of OSHA standards.  The key is though making

         19    sure that this is not going to become a

         20    uniform enforcement practice.

         21              ASSE has been very consistent in

         22    its message that OSHA's enforcement




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          1    activities need to be aimed most directly at

          2    the worst actors and not at those employers

          3    whose overall commitment to safety and health

          4    has been demonstrated.

          5              And so to ensure that OSHA's

          6    application of this proposed clarification of

          7    its ability to apply citations on a

          8    per-employee basis is focused where it will

          9    have the most beneficial affect, ASSE urges

         10    that the language be included in the final

         11    rule to require that an employer's overall

         12    management of safety and health risks be

         13    taken into account when the determination is

         14    being made whether to apply per-employee

         15    penalties or whether to group them together

         16    into a single citation.

         17              Certainly, failure to provide PPE,

         18    failure to provide adequate training, whether

         19    it be on how to use PPE or other types of

         20    training can be an egregious act by an

         21    employer and can demonstrate little or no

         22    regard for employee safety and health.




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          1              But in practicality, most PPE

          2    violations are largely technical in nature,

          3    maybe an inadvertent error by an employee

          4    where PPE has been made available, and often

          5    they do not result in harm to an employee if

          6    it is a short term lapse.

          7              Violations can often reflect

          8    unintended mistakes in use by employees, even

          9    where there has been appropriate training.  A

         10    supervisor may have a mistake in

         11    understanding, or an individual may fail to

         12    follow an employer or safety and health

         13    professional's best efforts to help it

         14    protect that employee.

         15              In such cases where the overall

         16    intent of the employer is to meet or exceed

         17    the OSHA standards and the overall approach

         18    in the workplace reflects a commitment to

         19    safety and health, the final rule should

         20    protect such employers against an arbitrary

         21    application of the per-employee egregious

         22    penalties.




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                                                           106

          1              So, again, as many people have said

          2    here already, the focus should be on willful

          3    and flagrant acts -- those employers who have

          4    demonstrated bad faith -- and not on a single

          5    error or omission that is not reflective of

          6    the overall commitment to safety and health.

          7              I think such a clarification would

          8    greatly add to employer's confidence that

          9    OSHA is not out to penalize

         10    disproportionately for violations.

         11              The more OSHA can do to ensure

         12    employers and the safety community that its

         13    enforcement activities are not intended to

         14    punish but are to be used as a deterrent, the

         15    easier it will be for our members to

         16    encourage employers to engage OSHA in

         17    positive efforts, such as the alliances and

         18    partnerships that we've been involved with at

         19    the national and the regional levels.

         20              And also, this will encourage

         21    employers to again join with OSHA in good

         22    programs, like the Voluntary Protection




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                                                           107

          1    Program, the Safety and Health Achievement

          2    Recognition Program, SHARP.

          3              So, we want to keep a positive

          4    relationship going with OSHA.  And just

          5    random and arbitrary use of egregious

          6    penalties simply because a rule now enables

          7    such use is going to be detrimental to those

          8    progressive programs that are already in

          9    place.

         10              Finally, it is left ambiguous in

         11    this rulemaking what effect this

         12    clarification would have on multi-employer

         13    worksites, especially those in construction

         14    where the duty to each employee may be

         15    confusing depending upon whether the general

         16    contractor or a subcontractor is overseeing

         17    provision of PPE or training.

         18              And we do urge OSHA to provide

         19    clarification in a final rule, preferably

         20    that will be consistent with its current

         21    approach to the multi-employer worksite

         22    policies and the exposed employee provisions.




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          1              As always, ASSE pledges its

          2    assistance to offer whatever is needed to

          3    ensure this rulemaking, as well as others,

          4    achieve positive results for safe and

          5    healthier workplaces.

          6              I'll be pleased to answer any

          7    questions you might have.

          8              JUDGE VITTONE:  Thank you, Ms.

          9    Abrams.  Any questions from participants?  No

         10    hands.

         11              Any questions from the OSHA panel?

         12    Thank you, Ms. Abrams.

         13              MS. ABRAMS:  Thank you, Your Honor.

         14              JUDGE VITTONE:  You're welcome.

         15    That concludes all of the witnesses who have

         16    scheduled to testify today after all this

         17    rigorous cross-examination.

         18                   (Laughter)

         19              According to the prehearing

         20    guidelines, participants and parties have a

         21    30-day period to submit post-hearing comments

         22    and briefs.  Since this is only taking one




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          1    day, by my calculation those documents would

          2    be due on November 5th.  Any question on

          3    that, Mr. Baird?

          4              MR. BAIRD:  No, Your Honor.  If you

          5    would allow, I'll reduce that order to

          6    writing and submit it for your signature.

          7              JUDGE VITTONE:  Sure.  I'll be

          8    happy to.  Anybody have anything they want to

          9    raise before I adjourn for today?  Nothing

         10    from the audience?  Anything from the OSHA

         11    panel?

         12              I'd just like to thank everybody

         13    for coming out today to this hearing.  As I

         14    said, hearings are a very important part of

         15    the rulemaking process, and we appreciate

         16    your participation in that process.  Thank

         17    you.

         18              Let me thank you also, and I

         19    appreciate your time today.  Have a good day.

         20                   (Whereupon, at 11:42 a.m., the

         21                   HEARING was adjourned.)

         22                       *  *  *  *  *




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