1              DR. SILVERSTEIN:  Jim Swartz.

       2              MR. SWARTZ:  I just wonder if we could

       3   cover a few items, such as maybe look at the

       4   strategy behind it, such as, will it be worker

       5   focus?  It will help us at least define what we

       6   want to get to.

       7              Short-term action, for example, worker

       8   focus, immediate recommendation, something like

       9   that, but at least we could fit the mold to the

      10   formal recommendation.

      11              So maybe three or four items that we

      12   are looking at, we can agree on.

      13              DR. SILVERSTEIN:  In a general sense,

      14   Dr. Michaels, would I be correct in understanding

      15   that you could use assistance from an ongoing work

      16   group that would address issues related to the oil

      17   spill as they evolve, and even including some that

      18   may not be apparent at this time.

      19              DR. MICHAELS:  Right.  We talked about

      20   protective equipment, we talked about work hours,

      21   we talked about training, all of those.  I would

      22   hope it would be inclusive, but there could be

                                                         203

       1   others as well.  Who knows what we'll come down

       2   to?

       3              DR. SILVERSTEIN:  So there would be --

       4              UNKNOWN VOICE:  [inaudible]

       5              DR. SILVERSTEIN:  What's that?

       6              UNKNOWN VOICE:  What you just said.

       7              DR. SILVERSTEIN:  Did somebody write it

       8   down?

       9                       (LAUGHTER)

      10              DR. SILVERSTEIN:  It's on the tape.

      11              But in addition to that general charge,

      12   there were some suggestions that we know enough

      13   right now to have the group address some more

      14   specific issues.

      15              One was respiratory protection,

      16   although, I'm a little bit fearful that the need

      17   for the agencies to make decisions about

      18   respiratory protection may run faster than we can

      19   address them in a work group setting.

      20              DR. MICHAELS:  But it's worth noting

      21   that even if you don't get to something today,

      22   this situation will not disappear, and all advice

                                                         204

       1   will be helpful when it comes.

       2              Do what you can today, and then we'll

       3   take it from there.

       4              DR. SILVERSTEIN:  So let me ask this

       5   question:  In addition to the general charge, and

       6   whatever specific attention the group might pay to

       7   respiratory protection, are there other specifics

       8   in this area that we ought to single out at this

       9   time?

      10              Yes.  Tim Key.

      11              DR. KEY:  Tim Key.  I would say

      12   communication to the public encouraging methods of

      13   communication to the public.  And also

      14   communication amongst the various agencies, EPA,

      15   public health services, and NIOSH and OSHA, so

      16   that there are no barriers or surprises.

      17              DR. SILVERSTEIN:  Okay.

      18              Other thoughts on that?

      19              Peter.  Peter Dooley.

      20              MR. DOOLEY:  Yeah.  I mean, just two

      21   areas is to be trying to focus on the best

      22   available control technology that's available to

                                                         205

       1   protect workers, as well as the idea of more

       2   advanced worker education and training, maybe at

       3   different levels, so that some workers can be

       4   trained to train others, and peer training.

       5              DR. SILVERSTEIN:  Let me try to

       6   summarize where we are and make assignments for

       7   the lunch hour.

       8              I have written down what might be four

       9   recommendations.  I'm not sure that I got all

      10   these right, but I have in my notes what appear to

      11   be four, and I'd like to assign some individuals

      12   to try to do some wording on each of these.

      13              The first is the recommendation that

      14   Peter Dooley and Peg Seminario together made that

      15   would advise OSHA and NIOSH to undertake pilot

      16   studies, including health hazard evaluations, that

      17   would address appropriate protective measures for

      18   workers who are exposed to potential hazards in

      19   the Gulf.

      20              I'm not at all sure -- I'm sure that

      21   what I said doesn't fully characterize what the

      22   recommendation would be, but I'm going to ask

                                                         206

       1   Peter if, during lunch, he would try to come up

       2   with some language that the committee could

       3   consider after lunch.

       4              The second recommendation was the one

       5   that I began to articulate having to do with work

       6   hours and fatigue.  And I'll try to work on some

       7   language during lunch on that one.

       8              The third one was the recommendation

       9   that Peg Seminario and Linda Rae Murray made along

      10   the lines of advising the agencies to do a more

      11   formal assessment of resource needs, and then to

      12   pursue those needs that were identified.

      13              And I would like to ask Peg, if during

      14   lunch you would try to write up some wording for

      15   that.

      16              And then the fourth area was a more

      17   general one that Linda Rae Murray raised, and I'm

      18   not sure if this becomes a fourth recommendation,

      19   or if this becomes an introductory statement that

      20   puts the others in context.

      21              But it was in -- I think I got the

      22   ballpark here, but I'm not sure of the details.

                                                         207

       1              But this would be a statement for

       2   advice about the need for broader tools in the --

       3   to ensure a full public health response to

       4   national emergencies of the sort that we may be

       5   facing here.

       6              And again, I'm not sure that I got that

       7   quite right.  But, Linda, if you would take a

       8   crack during lunch hour at getting some more

       9   specific language, that would help.

      10              Then, in addition to the specific

      11   recommendations, we made a little bit of progress

      12   a couple minutes ago about articulating a charge

      13   for an ongoing work group, that would be both

      14   general with regard to providing the agencies with

      15   some assistance and advice to address evolving

      16   needs, as well as to provide some advice about

      17   some specifics that we already know need

      18   attention, including respiratory protection,

      19   communication issues, public communication, and

      20   control technologies.

      21              And I need somebody who would be

      22   willing to take a crack, during the lunch hour, at

                                                         208

       1   writing up such a charge.  I'm not sure who would

       2   like to take that one on.

       3              MS. SHORTALL:  You're the chair.  You

       4   should write that up.

       5              DR. SILVERSTEIN:  I already gave myself

       6   an assignment.

       7              MS. SHORTALL:  You still should, as

       8   chair.

       9              DR. SILVERSTEIN:  I could, as chair, do

      10   that, but -- and when we make the assignment, it

      11   will be me who makes the assignment.  But I'm

      12   asking for some help in preparing me to do that.

      13              DR. BUCHAN:  Would you mind repeating

      14   that?

      15              DR. SILVERSTEIN:  We have agreed --

      16              DR. BUCHAN:  I know it was kind of

      17   vague.

      18              DR. SILVERSTEIN:  I have decided, and

      19   we have agreed, that we will establish a work

      20   group that will address over an unspecified period

      21   of time evolving needs that emerge in the face of

      22   the Gulf oil spill.

                                                         209

       1              And we'll address in as timely a

       2   fashion as we can some of the specific concerns

       3   that the agencies have brought to us, including

       4   choices of respiratory protection and other

       5   personal protection; communication with workers

       6   and the public; and attention to the best

       7   available control technologies.

       8              Maybe I just did it.  Maybe I just

       9   articulated it.  Did that basically do it?

      10              DR. MURRAY:  Sounds good to me.

      11              ASSISTANT CHIEF POUGET:  I'll try to do

      12   something.  Can you say that last part again?

      13              DR. SILVERSTEIN:  Well, I think

      14   maybe --

      15              ASSISTANT CHIEF POUGET:  Communication

      16   and other -- you worded it so well.

      17              DR. SILVERSTEIN:  I'm looking at the

      18   folks with the ear phones on.  Will we be able,

      19   when we break, to pull some of that language off

      20   of the tape -- to listen to the language on the

      21   tape?

      22              So, Denise, there -- Denise, you can go

                                                         210

       1   to the table there, you know, during the lunch

       2   break and get it.  And then we'll come back and

       3   we'll work on the details after lunch.

       4              DR. BUCHAN:  Okay.  You're talking also

       5   about something that would last until the time to

       6   assist in future incidents?

       7              DR. SILVERSTEIN:  No, not right now.  I

       8   think that would be a stretch.

       9              DR. BUCHAN:  Okay.  Okay.

      10              DR. SILVERSTEIN:  Other thoughts before

      11   we break for lunch?

      12              Okay.  For those who don't know, there

      13   is a pretty good cafeteria on the sixth floor of

      14   this building.  There's a little snack bar on the

      15   fourth floor.  And if you don't mind working up a

      16   sweat, you can run down the street and there are

      17   places not too far from here.  But I'd strongly

      18   advise sticking in the building and being back

      19   here in an hour.

      20              We have an hour and five minutes for

      21   lunch.

      22

                                                         211

       1                  (LUNCH RECESS TAKEN)

       2

       3                         * * *

       4

       5                  (AFTERNOON SESSION)

       6              DR. SILVERSTEIN:  I'd like to reconvene

       7   today's session of the National Advisory Committee

       8   on Occupational Safety and Health.

       9              All members of the committee are

      10   present, and Dr. David Michaels continues to be

      11   here with us.

      12              Dr. Michaels has limited time this

      13   afternoon, but has come back to at least put on

      14   the table for our consideration some of the other

      15   issues that OSHA believes that the committee might

      16   address over time.

      17              And then when Dr. Michaels leaves,

      18   we'll return to consideration of the oil spill

      19   recovery issues.

      20              Dr. Michaels.

      21                 (INTRODUCTORY REMARKS

      22                CONCERNING OTHER TOPICS)

                                                         212

       1              DR. MICHAELS:  Thank you so much,

       2   Dr. Silverstein.  I apologize for having to leave

       3   for part of the meeting this afternoon, and I hope

       4   to be able to come back later in the day.

       5              A number of pressing issues regarding

       6   the Gulf have come up, and I'll be leaving this

       7   evening, going down there.

       8              So what I thought I'd do is lay out at

       9   least some of the issues that OSHA is grappling

      10   with, which we hope you'll be able to provide us

      11   with some advice.

      12              Obviously, I think there are others

      13   that we have great interest in, there are others

      14   which we think you probably have great interest

      15   in, so you need to limit your conversations to

      16   these, though these are ones where we have

      17   particular -- we feel really are ripe, and they're

      18   pressing for your help.

      19              So I'll spend a couple minutes on each

      20   one, and maybe answer just a couple of questions,

      21   and then return the agenda to you.

      22              The first on our agenda here, the

                                                         213

       1   outreach to vulnerable and hard-to-reach workers.

       2              We spoke a little bit on that this

       3   morning, but it's very much a focus of the

       4   department.  We are concerned that OSHA has very

       5   successful programs in certain sectors of the

       6   economy; certain types of workers, certain

       7   industries, certain types of employers, but in

       8   fact, we rarely get to the workplaces employing

       9   some of the more vulnerable workers.  We don't

      10   know how to reach them, they don't know their

      11   rights under OSHA.

      12              And so we have to think about that, and

      13   we recognize we have to approach it from many

      14   different levels.  We have to approach it from

      15   getting materials out and getting public

      16   information out about OSHA to them, about hazards

      17   and about what their rights are, and we have to

      18   use alternative means to getting to workers, and

      19   to reaching their employers as well.

      20              And, certainly, small business -- very

      21   small businesses often know very little about OSHA

      22   and are afraid to ask.

                                                         214

       1              So how do we reach out to these

       2   workers?  How do we get them the information they

       3   need?  How do we ensure their rights are

       4   protected?

       5              One component of that is also in our

       6   enforcement programs, and how do we -- how do we

       7   target our enforcement efforts to reach those high

       8   hazard employers where vulnerable workers work?

       9   And so all of these are still on the table.

      10   They're things we're wrestling with.

      11              Some of you may know, we use a system

      12   based on this thing called the "Dodge Reports" for

      13   targeting construction inspections.  This is based

      14   on information gathered from permits, you know,

      15   filings usually with county or local building

      16   departments.  We're able reach certain types of

      17   jobs that way, but not others.

      18              Jobs that day laborers take, I think we

      19   have particular difficulty reaching.  Jobs that

      20   are mobile, we have particular difficulty

      21   reaching.  So we're very interested in thinking

      22   about how to reach those employers, and how to

                                                         215

       1   reach those workers.

       2              Just as an aside, you should probably

       3   know that one of the initiatives of the department

       4   right now, and actually the whole administration,

       5   is on this classification.

       6              We think that's another issue that

       7   often goes on in some parts of the economy, where

       8   workers are not considered regular employees and

       9   where they're paid a regular wage, with taxes

      10   taken out or taxes paid, and Workers' Compensation

      11   payments made to them.

      12              And that, of course, is another issue

      13   around occupational health.  If people are not in

      14   the Workers' Compensation system and they're

      15   injured, you know, there's no one other than

      16   themselves, their family, or, you know, the social

      17   safety net to pay for their medical costs as well.

      18              So these are all things we're trying to

      19   think about.  Any advice that you have for us on

      20   reaching out to these workers and these employers

      21   would be very helpful.

      22              The second issue is one in some ways we

                                                         216

       1   only need, I think from this group, sort of

       2   limited advice, about promoting injury and illness

       3   prevention programs, not because you don't --

       4   aren't very thoughtful of this issue, but we've

       5   started a regulatory process, which we've had our

       6   first stakeholder meeting last week.

       7              We have another one scheduled in Dallas

       8   shortly.  We will have several more public

       9   meetings.  Then we'll issue a proposed rule.

      10   There will be plenty of opportunity for people to

      11   have input.

      12              So we're eager for your input, but we

      13   don't necessarily want to spend the time today on

      14   that, because there will be lots of opportunity to

      15   do that.

      16              Within the issue of promoting injury

      17   and illness prevention programs, separate from the

      18   regulation, an issue of great concern to us is how

      19   we, as OSHA, and how employers, and how workers

      20   deal with what we might call emerging hazards.

      21              Now, when we think of emerging hazards,

      22   we think of nanomaterials, perhaps, or some new

                                                         217

       1   chemicals.  But, in fact, in the OSHA world, many

       2   emerging hazards have been around for quite a long

       3   time, because, as we discussed earlier today, our

       4   permissible exposure limits are outdated and

       5   limited.

       6              And so there are many chemicals that

       7   have been around the workplace for quite a few

       8   years that we might think of as emerging because

       9   OSHA has no formal way to deal with them.

      10              So I think the question we have for you

      11   is, when we see information, when there is new

      12   information or existing information about the

      13   hazards of the chemicals for which we have no

      14   standard, what should we do about that?

      15              And within the context of our plan to

      16   protect and prevent framework of asking employers

      17   to provide workplaces safe for recognized hazards,

      18   and these are recognized hazards and we have no

      19   standard on them, we can use the general duty

      20   clause, but we prefer to think there must be more

      21   robust ways to address that problem.

      22              The third issue we'd like you to

                                                         218

       1   discuss is in some ways the most challenging to

       2   OSHA right now, which is the question of safety

       3   incentive programs.

       4              And there are a lot of different ways

       5   we can describe this, but it's clear that there's

       6   a widespread use of programs that have, depending

       7   on how you look at them, that have -- ideally,

       8   they have the goal of promoting safe workplaces,

       9   but they often focus on behavior and safe

      10   behavior.

      11              But, to me, they're very much

      12   structured in ways that, rather than promote safe

      13   behavior, what they really do is they discourage

      14   injured workers from reporting their injuries.

      15              And we see that over and over and over

      16   again.  And employers have come to me and said,

      17   look, here's our program, or in some cases, cases

      18   where we disavow this program, because we see the

      19   programs of this program.

      20              A common type program of this nature is

      21   a program that provides a very modest benefit at

      22   the end of a period of time, if a group of workers

                                                         219

       1   have no reportable injuries.

       2              You know, when we had our big Latino

       3   worker health and safety meeting in Houston, I was

       4   talking about this, and the workers in the hotel

       5   said, yes, at the end of the week, if no one's

       6   injured, we share a pizza.

       7              And if someone is injured, depending on

       8   the program, either no one gets pizza, or the one

       9   individual worker who's injured doesn't get pizza.

      10              Now, that's a very modest reward.  But,

      11   in fact, even modest rewards are sufficient for

      12   peer pressure to work on individual workers to

      13   discourage them from reporting an injury.

      14              And, certainly, if that works for a

      15   piece of pizza, think about if it works for your

      16   chance to share in a lottery for a pickup truck,

      17   which is the other end of the scale of rewards.

      18              We view that as problematic.  We think

      19   that it has helped warp the reported injury rates

      20   that we see.  And it has a big effect on

      21   workplaces, because if the injuries aren't

      22   reported, they can never be investigated.  And if

                                                         220

       1   they can never be investigated, they can't be

       2   prevented.

       3              So we think it's very important to

       4   discourage programs that discourage injury

       5   reporting.  And we'd like help getting there.

       6              When we talk to our solicitors, we ask,

       7   well, what aspects of this are OSHA violations?

       8   We're still wrestling with this question.  It's

       9   very clear that if a worker is injured, and

      10   reports the injury as told, okay, you don't get to

      11   share that pizza, that is an 11(c) violation.

      12              And as such, if that worker were to

      13   file a complaint with OSHA within the appropriate

      14   period of time, we could investigate it, and,

      15   theoretically, cite that employer.

      16              But the existence of these programs may

      17   themselves not be an OSHA violation, but I'm

      18   saying we have to think about it.

      19              But, more importantly, I think it's

      20   very important for us to get the information out

      21   to employers to show that programs designed this

      22   way are to their detriment.  And they're obviously

                                                         221

       1   to the detriment of workers who don't get Workers'

       2   Compensation benefits if they're injured.  And in

       3   the long run, that may have some significant costs

       4   to them.

       5              And to the detriment of OSHA, we can't

       6   figure out what's going on in workplaces.

       7              So we want to wrestle with that

       8   question:  How do we check it out?  How should we

       9   approach it through regulations?  Should we

      10   approach it through education?  How do we --

      11              And the hardest question, how do we

      12   draw the line between the program that encourages

      13   safety versus the one that discourages injury

      14   reporting?

      15              I've spoken in public meetings and web

      16   chats on this.  And certainly OSHA encourages

      17   programs where safe behavior -- if it's a

      18   behavioral-based program, if safe behavior is

      19   rewarded, if when a supervisor sees a worker doing

      20   things safely, or abate a hazard, gives them a

      21   reward, say, you know, a raffle ticket for that

      22   pickup truck, we think that's a good thing.

                                                         222

       1              But we don't want to see a program

       2   where people have rewards or benefits taken from

       3   them because they have reported an injury, because

       4   that reporting an injury -- because failure to

       5   report an injury is a serious problem to us.

       6              We also know that this is very much

       7   linked to economic incentives and supervisors and

       8   higher level management.  People are often given

       9   bonuses on the base of reportable injury rates.

      10              We know that employers and contractors

      11   can get contracts or lose contracts based on

      12   injury rates.

      13              So it's quite a complicated issue to

      14   say, well, let's just let all injuries get

      15   reported, and come what may, because we run into

      16   some real roadblocks when we do that, because

      17   there are incentives on keeping those numbers low.

      18              It's a very tough issue.  And we would

      19   love your assistance in addressing this.

      20              And, finally, we're very interested in

      21   the issue of moving into electronic record-keeping

      22   for all employers.  The OSHA Act requires us to

                                                         223

       1   collect information and to actually require

       2   employers to collect information about injuries

       3   and illnesses.

       4              OSHA receives reports of fatalities,

       5   and what we call "catastrophes," three

       6   hospitalizations.

       7              The OSHA data initiative collects

       8   aggregated OSHA log information, not information

       9   about the specific illness or injury, but the

      10   total number, and the total number of work hours

      11   at the end of the year, or actually, in the next

      12   year, for targeting.

      13              A limited number -- a limited

      14   percentage of our inspections are based on those

      15   targets, but we do quite a bit of inspections

      16   based on that information, but that targeting

      17   program has its limits.

      18              If you're injured on the job today, it

      19   goes into the log.  If it's aggregated next

      20   spring, and sent to OSHA, it will be another year

      21   after that by the time it gets into our targeting

      22   system.

                                                         224

       1              And so while it's still useful and we

       2   find those inspections we make on the basis of

       3   those rates quite useful, it still isn't an

       4   efficient way to identify workplaces with high

       5   injury risk.

       6              In addition, most employers do not send

       7   us information electronically or at all, and we

       8   know that many employers still keep these records

       9   by hand.

      10              It occurred to me, as an

      11   epidemiologist, that investigations of injuries,

      12   not just individual injuries, but the patterns of

      13   injuries, is a very useful way to understand

      14   what's going on in workplaces and preventing

      15   injuries from occurring.

      16              And so we would like to create a tool

      17   that will be used by employers to understand

      18   what's going on in their workplaces, and that

      19   would help OSHA target its resources better.

      20              And again, we're starting on a

      21   regulatory process on that.

      22              But I think there's some larger

                                                         225

       1   questions that, if you feel like wrestling with,

       2   would be interesting.

       3              For example, in the three-plus million

       4   injuries per year, would it be useful for OSHA to

       5   receive those reports at the end of the year, or

       6   even more frequently?  And what would we do with

       7   that information?  Or who else could use that

       8   information?  It's an interesting and tough

       9   question.

      10              So those are four issues that are, you

      11   know, on our very short-term agenda, we'd like

      12   some assistance on.

      13              Obviously, as I said, there are others

      14   that are of great interest to us.  We're working,

      15   as we talked a little bit this morning, on what to

      16   do about chemical exposures in the PELs, and Peg

      17   raised that.

      18              I didn't put that on the list, because

      19   we have a process, we have an internal task force

      20   looking at the PELs.  And they've reached out to a

      21   number of stakeholders, and we'll have a series of

      22   discussions with them.  So we hope to call on some

                                                         226

       1   other resources, advisory resources to help us

       2   move that forward.

       3              So I didn't put that on this list,

       4   though, obviously, if you have thoughts about

       5   that, that would be useful, too.  But that's a

       6   lower priority to us right now, because we have

       7   some other people working on it.

       8              DR. SILVERSTEIN:  Thank you.

       9              Linda Rae Murray.

      10                (COMMENTS AND DISCUSSION

      11                CONCERNING OTHER ISSUES)

      12              DR. MURRAY:  A quick response.

      13              One is, let me just say this, on the

      14   record-keeping and modernization of

      15   record-keeping, I think it's critical that OSHA

      16   and the rest of the public health be clearly and

      17   appropriately represented on these health

      18   information exchanges that are going forward, not

      19   just under health reform, but as part of that

      20   process.

      21              And those efforts at the moment are

      22   focused very much on individual clinical records

                                                         227

       1   and sharing between different hospitals and

       2   doctors and stuff, but really, the public

       3   health -- and even though public health is sort of

       4   mentioned, I have not seen nationally that much

       5   involvement in a broad sense from public health.

       6              So that this issue, not only with

       7   injuries, but, frankly, exposures -- if you ask me

       8   what information should be there, this should be

       9   there.

      10              If a patient comes to see me, I should

      11   be able to look at their record and realize that

      12   they got an X-ray, you know, last month, maybe in

      13   an emergency room, but also see that they had an

      14   industrial injury, and what their exposures may

      15   have been over the past, you know, X number of

      16   years, if I'm going to clinically appropriately

      17   treat that patient.

      18              And then, obviously, from a population

      19   point of view, our ability to recognize clusters

      20   of injury and disease, and to look at that, I

      21   think, is wide open.

      22              So I don't think we should look at it

                                                         228

       1   as only making electronic our present paper

       2   systems.  That should happen.  But then we really

       3   have to ask ourselves, how can safety and health

       4   information be an active and important part of

       5   these HIEs, along with, you know, other stuff.

       6              The second thing I wanted to say, and I

       7   would hope, Mike, that we could maybe, if we

       8   planned for the next year, we could find a way to

       9   make this part of the agenda and ask ourselves how

      10   to do it.

      11              Mike said earlier, you know, if we keep

      12   doing things the way we've always done them, we're

      13   not going to be -- we're going to be where we

      14   always have been, which is not where we want to

      15   be.

      16              So I think intentionally calling for a

      17   discussion, a national discussion on a paradigm

      18   shift, how can we do this better?  You know, how

      19   can we think about, you know, promoting safety

      20   better than our present center programs?

      21              How can we think about regulating

      22   exposure better than our one-by-one, you know,

                                                         229

       1   regulation of this-or-that exposure level?

       2              And that that requires not only an

       3   intentional meeting to do that, but I would urge

       4   us to get some people who are not health and

       5   safety experts.  I don't know, some historians,

       6   some poets, somebody who thinks differently than

       7   us that can come in and help us sort of shake up

       8   our present paradigm.

       9              So a number of the things you

      10   mentioned, I think, might be informed by that kind

      11   of exercise.

      12              DR. SILVERSTEIN:  That's great.

      13              Roy Buchan.

      14              DR. BUCHAN:  You are thinking out of

      15   the box.  I like that.  Okay?

      16              Roy Buchan, Colorado State.

      17              In reaching vulnerable and

      18   hard-to-reach employees from agriculture, a large

      19   portion of the work community are migrant workers

      20   or temporary workers.

      21              I have written something here that --

      22              Mike, I'm sorry, I said I'd discuss

                                                         230

       1   this later, but it came up.

       2              DR. SILVERSTEIN:  Go ahead.

       3              DR. BUCHAN:  This is something we can

       4   discuss as a recommendation.  Historically,

       5   agriculture has resisted enforcement, so this is

       6   what I am suggesting:

       7              OSHA should address the agricultural

       8   sector by hiring or designating an industrial

       9   hygienist and a safety consultant in each state

      10   consultation program in the nation, to perform

      11   on-site consultation surveys in occupational

      12   health and safety educational programs.

      13              Each of these professionals should have

      14   no other work assignments outside of the

      15   agricultural sector.

      16              At one point I was director of an

      17   ag. center.  I was also director of the

      18   consultation program.

      19              With the agreement to our regional

      20   administrator at that time, I did this for two

      21   years.  It was very successful, except the workers

      22   involved had difficulty running back and forth

                                                         231

       1   between agriculture and other kinds of businesses.

       2   So that's why I put in the statement, "No other

       3   assignments outside of agriculture."

       4              And I'm throwing on the table for

       5   people to consider.

       6              DR. SILVERSTEIN:  All right.

       7              I think I have, and I will continue to

       8   encourage lots of ideas to be put on the table,

       9   with the recognition that there may be -- and this

      10   may or may not be true for the one you just made,

      11   but it's an appropriate time to say this.

      12              There may very well be some excellent

      13   recommendations that we want to act on, that are

      14   put on the table today, but that we're not going

      15   to have time to adequately discuss and act on.

      16              I want to be sure that ideas like the

      17   one you just mentioned, if not that one itself,

      18   not be lost.  If, in fact, we decide that we're

      19   not going to act on that particular recommendation

      20   or others, let's put them -- you know, we'll keep

      21   them on a list, and we'll come back to them for

      22   continued consideration.

                                                         232

       1              DR. BUCHAN:  Okay.  Mike, the only

       2   reason I did that was the difficult to reach

       3   workers, is why I brought it up.

       4              DR. SILVERSTEIN:  And it's fine.  I'm

       5   encouraging that.  I'm glad you did it, and I'm

       6   not even making a judgment about that particular

       7   recommendation.  It was just a good opportunity to

       8   make that general point about the way we conduct

       9   the work.

      10              So, thank you.

      11              DR. BUCHAN:  Okay.  I appreciate that.

      12              MR. BORWEGEN:  Bill Borwegen, SEIU.  I

      13   wanted to talk quickly about safety incentive

      14   programs, and then the injury and illness

      15   prevention rule, which I think is the most

      16   important thing OSHA should be working on.

      17              These safety incentive programs are

      18   very insidious, a very nefarious attempt to reduce

      19   reporting.  And I wish that, as a country, somehow

      20   we could figure out a way so that the injury and

      21   illness rates didn't have the significance that

      22   they -- they don't really deserve the level of

                                                         233

       1   significance that people give to them.

       2              And, unfortunately, a lot of companies,

       3   that's how they rate their health and safety

       4   staff, based on how getting this number down.

       5              I'm wondering if there's a way -- I

       6   think, first of all, I think the idea of an 11(c)

       7   with a good press release, you know, would do a

       8   lot to remind employers that they shouldn't be

       9   using these programs to take away benefits from

      10   workers, and, you know, that it is an 11(c)

      11   violation if somebody doesn't get a piece of

      12   pizza.

      13              But I'm wondering also if we could do

      14   something more progressive, because as you know,

      15   injury and illness rates, it's a lagging

      16   indicator, and I'm wondering if we could do

      17   something with a leading indicator, like getting

      18   employers to report near misses.

      19              And I know there are employers out

      20   there that are doing near miss reporting, and I'm

      21   wondering if we could partner with maybe a VPP

      22   employer, and get them to, you know, share their

                                                         234

       1   program with us on how they capture near miss

       2   data, and try -- and again, to try to change this

       3   paradigm, as Dr. Murray talked about, to try to

       4   get employers to start looking at near misses as

       5   an alternative to recording injuries and

       6   illnesses.

       7              And the percentage of near misses that,

       8   you know, identify hazards that get corrected, I

       9   think, is a much more valid measurement of -- give

      10   health and safety directors of companies much

      11   better information to operate under to make the

      12   workplace truly safer.

      13              On the injury and illness prevention

      14   program standards, again, I think this is the

      15   first standard OSHA should have issued in 1970.

      16   I've always felt that way.

      17              We want to know, as a committee, as

      18   this advisory committee, how we can help expedite

      19   this process.

      20              I believe I'm speaking for the

      21   committee, and maybe I'm not; but if anybody

      22   disagrees, let me know.

                                                         235

       1              But, you know, can you give us a

       2   timeline on -- or is it too premature to give us a

       3   timeline?

       4              Because, you know, again, sometimes

       5   these windows of opportunity don't last as long as

       6   we would like them to.  And so I don't know if you

       7   could give us a -- I know there's so many

       8   regulatory hurdles, but is there anything this

       9   committee can do to try to expedite the process?

      10              DR. MICHAELS:  I can't think of any,

      11   offhand.  I will certainly think about them.

      12              You know, we are having our stakeholder

      13   meetings, we find them very useful.  We're getting

      14   comments from different sectors.  We'll be soon

      15   having a small business panel through the SBREFA

      16   act.

      17              In addition, we have to do a survey to

      18   look at technological economic -- well, economic

      19   feasibility, in this case.  And that's going to

      20   take some time.  So I can't -- I can't go much

      21   beyond that.

      22              But these are some steps we do before

                                                         236

       1   we even issue a proposed rule.  So we're working

       2   as expeditiously as we can on those requirements.

       3   And we think they're useful, we learn from them,

       4   and we'll see.

       5              DR. SILVERSTEIN:  This is Michael

       6   Silverstein.

       7              Given the fact that there is a lot of

       8   activity that you initiated on injury and illness

       9   programs, including a lot of stakeholder

      10   involvement, I think that Bill raised the

      11   appropriate question:  Is there something -- is

      12   there a unique contribution that this committee

      13   can make over and above what's already in process?

      14              And I'm not sure that I --

      15              DR. MICHAELS:  Well, I'll think about

      16   that.

      17              DR. SILVERSTEIN:  Yeah.  I think we all

      18   need to think about that.  But we got to be able

      19   to answer that question before just jumping into

      20   it.

      21              I think Peg had her hand up, Denise

      22   did, Peter did.

                                                         237

       1              So, Peg Seminario.

       2              MS. SEMINARIO:  To follow up on this

       3   point, a number of these issues are obviously -- I

       4   mean, they're related.  And I would just encourage

       5   the agency to think about how they interrelate.

       6              Looking at the injury and illness

       7   prevention program, it's my view that, you know,

       8   one of the reasons why we have these safety

       9   incentive programs coming up, in looking at worker

      10   behavior, is because there was such a vacuum and

      11   lack of activity in looking at exposures and

      12   hazards, so it sort of went dormant on that.

      13              And in that vacuum, this became the

      14   easy surrogate for an easy way to deal with safety

      15   and health, was just to go out and look at reports

      16   of injuries and trying to keep those reports --

      17   keep those reports down.

      18              So I would recommend to the agency, in

      19   looking at your notice that you got for your

      20   stakeholder meetings, there's nothing in the

      21   notice that talks about reporting of injuries --

      22   injury prevention.

                                                         238

       1              That's not linked to this, and, to me,

       2   that's sort of a fundamental part of an injury and

       3   illness prevention program, is looking at those

       4   reports, and collection of that information, and

       5   evaluation of the data.

       6              So it may be useful as part of your

       7   rule-making on injury and illness prevention

       8   programs to be looking at the whole issue of how

       9   the incentive programs, [inaudible] codes fit in,

      10   because that is part and parcel of the safety and

      11   health program to allow for some more robust

      12   comment on it, examples, a discussion.

      13              Because again, you've got to figure out

      14   that in a relationship.  And I think that's the

      15   forum, you know, in which to do it, so ...

      16              DR. SILVERSTEIN:  Denise?

      17              ASSISTANT CHIEF POUGET:  Hi.  Denise

      18   Pouget, Alexandria Fire.

      19              I comment on the injury and illness

      20   prevention, and then the electronic reporting or

      21   injury reporting.  And I'll try not to be too

      22   lengthy.  I'm give you the Reader's Digest

                                                         239

       1   version.  But if you're interested in talking

       2   later, I'd love to talk to you about it.

       3              I had a unique experience in my career,

       4   when I was with Montgomery County Fire for three

       5   years, being their safety chief.  And we had a

       6   program that one of our firefighters created

       7   called "risk management accountability program."

       8   And it was an electronic form of reporting.

       9              But the unique thing about it was when

      10   the information was in there, you could ask RMAP

      11   anything, and it would go back and look and search

      12   for related root cause analysis and so forth.

      13              So over an employee's lifespan, we

      14   could find out if they were a safe driver, how

      15   many accidents have they had at-fault, or, you

      16   know, non-fault accidents, you know, how many

      17   injuries they had, tie that all together.  And it

      18   was just an easy way to kind of cross-reference

      19   all the information about the employee.

      20              So we knew their safety behavior, if

      21   you will.  So that was really a great program.

      22   And I can tell you, when we had that in full

                                                         240

       1   force, and then we dovetailed training of the

       2   officers, and holding the officers accountable for

       3   their firefighters' safety and actions, then we

       4   saw in one year over a million dollar savings in

       5   indemnity insurance.  So it did work.

       6              So subsequently, I got to be

       7   International Association of Fire Chief Safety

       8   Officer of the Year.  But it wasn't me; it was the

       9   safety staff.

      10              So that did work.

      11              DR. MURRAY:  [inaudible]

      12              ASSISTANT CHIEF POUGET:  Pardon?  No.

      13                       (LAUGHTER)

      14              ASSISTANT CHIEF POUGET:  But I mean,

      15   like I said, I don't take full credit for it, but

      16   what worked about it was, it was kind of a change

      17   of culture, if you will, and it was not just

      18   putting things in an electronic format, but it was

      19   utilizing that data.  That program could make

      20   graphs, and we could do tracking of root cause

      21   analysis, and so forth.

      22              And, like I said, if you want more

                                                         241

       1   information about that, I have it.

       2              And there's also something called

       3   "FirefighterNearMiss.com."  When you were talking

       4   about near misses, again, we lose over 110 people

       5   a year in the line of duty deaths.  And this

       6   program is sponsored by -- it's all the

       7   International Association of Fire Chiefs, IAFF,

       8   and the Volunteer Combination Officers

       9   Association.

      10              And I believe it's grant-funded, also.

      11   And what it does is it's a database, you can go to

      12   FirefighterNearMiss.com, and we encourage

      13   firefighters to go on and utilize -- these are

      14   stories told in other firefighters' words.  It's

      15   anonymous reporting so you can't get in trouble --

      16   to go on and look at these actions that got these

      17   folks in trouble.

      18              And we've been utilizing it now, it's

      19   been probably four, five years.  And many

      20   departments have policies that you have to, you

      21   know, we're encouraging, an "if we've seen it, you

      22   have to report it" kind of thing.

                                                         242

       1              But again, it's a non-punitive way of

       2   doing it, and it was designed on the FAA's

       3   database that they did years ago in all of their

       4   reporting.

       5              So anyway, that has worked, and it

       6   seems to work with a multitiered approach with the

       7   training and holding the officers responsible --

       8   or the supervisors responsible for their

       9   employees' behavior.

      10              And the incentive with that, going back

      11   to incentive, we look at the safe drivers and we

      12   give them savings bonds, ball caps, dinners,

      13   things like that.  And that really does work.

      14   So ...

      15              DR. SILVERSTEIN:  This is Michael

      16   Silverstein.

      17              Just incidentally, as a -- speaking for

      18   a second as a manager, working for a public

      19   employer, we've included in our business plan for

      20   the next year a program of reporting of close

      21   calls.  So it's something that we think, as well

      22   as other employers think is doable, and maybe

                                                         243

       1   useful.

       2              DR. MICHAELS:  And if I could -- this

       3   is David Michaels.

       4              You know, we actually do expect

       5   recording and reporting to be part of injury and

       6   illness prevention programs.  It's come up in the

       7   stakeholder meetings.  I'm not sure why it wasn't

       8   in those -- anyway, we do expect the appointment,

       9   and we're looking very much at near misses.

      10              In fact, we've been working with BP

      11   down in the Gulf, and actually BP is reporting not

      12   just injuries, but near misses to NIOSH as well.

      13   And we'll see if that turns out to be useful in

      14   terms of investigations.

      15              DR. SILVERSTEIN:  Thanks.

      16              Peter Dooley?

      17              MR. DOOLEY:  Yeah.  Peter Dooley with

      18   LaborSafe.

      19              Just a little addition.  For one thing,

      20   I applaud OSHA for really seriously looking at the

      21   safety incentive programs and the consequences of

      22   them.

                                                         244

       1              And just another angle which Peg

       2   Seminario mentioned about discipline.  There's a

       3   growing increase of activity that I see from --

       4   reporting from workers about programs which place

       5   an emphasis on basically retaliation for workers

       6   who report injuries.

       7              And it comes as serious as one worker

       8   recently described for me as management bullying,

       9   around health and safety, so that if a worker

      10   reports an injury, they're called in for an

      11   interrogation.

      12              And this is a meeting where they have

      13   with management, which supposedly is to find out

      14   what the problem is, but, in fact, often results

      15   in more scrutiny of that worker, and in many

      16   cases, results in discipline and other forms of

      17   retaliation against the worker.

      18              So, there's an increasing amount of

      19   fear around health and safety in the workplace.

      20   And this is coupled with -- there's also a whole

      21   bunch of programs which have all these work rules

      22   that are established, which are, you know, a

                                                         245

       1   telephone book, and workers are often found in

       2   violation of them, and basically discipline is

       3   applied.

       4              And this is all in the midst of an

       5   incredible do-more-with-less mentality in

       6   workplaces, where equipment is not being

       7   maintained the way that it should be and used to

       8   be; there's staffing levels that have been

       9   drastically decreased.  And it's really a crisis

      10   in health and safety in most workplaces.

      11              DR. MICHAELS:  If I can just respond,

      12   we share some of these same concerns.  We've seen

      13   programs where the only time that a worker is

      14   disciplined for filing a safety rule is when

      15   they're injured.

      16              And they're allowed to go and -- and

      17   it's expected and understood in these workplaces

      18   that no discipline will take place for doing

      19   certain procedures which are against safety rules;

      20   but if you're injured, you can be fired for that.

      21              In fact, we recently have a whistle

      22   blower case under a different law, which we

                                                         246

       1   actually will be able to, I think, successfully

       2   cite the employer for automatically instigating an

       3   investigation of every worker who's injured, and

       4   inevitably finding cause in their action and then

       5   disciplining them.

       6              It's a significant problem.  We'd love

       7   your advice on how to address that.

       8              So maybe I will leave you here, I know

       9   you have much to do.  I hope to return later on in

      10   the session.  And let me thank you again for all

      11   your great help.

      12              DR. SILVERSTEIN:  Thank you,

      13   Dr. Michaels.

      14              I would like to continue for a short

      15   period, before we get back to the issues related

      16   to oil spill recovery, I'd like to consider

      17   whether or not there are some of these additional

      18   issues that Dr. Michaels just raised that we ought

      19   to put on our agenda in some kind of specific way.

      20              I'm open to the suggestion that we

      21   would establish one or more work groups, in

      22   addition to the one that we discussed earlier,

                                                         247

       1   though I'm not going to push for that.  That's

       2   something we can always do later.

       3              But I'd like to know what people think

       4   about how we should address some of these other

       5   issues.  "Other" doesn't, by any means, doesn't

       6   mean less important than the oil spill.

       7              MR. SWARTZ:  Jim Swartz.

       8              Just a general comment.  I appreciate

       9   actually limiting the topics, and his general

      10   comments about, "I'd like some feedback."

      11              So what is our general process for

      12   giving feedback?  Is it through work groups?  Or

      13   is it through -- I'd like to understand that piece

      14   first before we can give comments.

      15              DR. SILVERSTEIN:  Right.

      16   Recommendations come only from the full committee,

      17   and only during a public meeting of the full

      18   committee.

      19              So we can make recommendations at the

      20   end of the meeting today; we can make them at our

      21   next meeting.  The work groups are to assist us in

      22   working through issues, but they're not

                                                         248

       1   decision-making bodies in the same sense.

       2              MR. SWARTZ:  And that's why I was just

       3   being pedantic, and "I'd appreciate your

       4   comments," the comments of the work groups, or our

       5   general comments?

       6              And I know we're learning as a new

       7   group, and so some of it comes at the learning

       8   stage.  But how do we give comments?  And it's

       9   through work groups?

      10              DR. SILVERSTEIN:  Well, deliberations

      11   might come through work groups, or the full

      12   committee itself.  But decisions about

      13   recommendations that we make to the agencies come

      14   at the full meetings.

      15              So one way to think about it is that,

      16   if there is a subject where we don't want -- our

      17   next meeting is going to be in September.

      18              If there's a subject where we want

      19   to -- where we don't want to lose time and just

      20   put it to sleep until the next meeting, but we

      21   want to continue working on it, a work group would

      22   be a way of gaining and continuing some momentum.

                                                         249

       1              There may very well be subjects which

       2   we think over the next two years are going to be

       3   very important to address, but we don't have to

       4   address right now.  We don't need a work group, we

       5   don't need more discussion today, but we would

       6   keep on a list for us to come back to.

       7              I think Bill had his hand up first, and

       8   then Peg.

       9              MR. BORWEGEN:  I'd go to Peg first.

      10              DR. SILVERSTEIN:  Peg Seminario.

      11              MS. SEMINARIO:  I would suggest on some

      12   of these, that it would be useful to establish

      13   some more background, before deciding whether or

      14   not we're going to have a work group.

      15              And, you know, looking at the issue of

      16   the accurate injury and illness reporting issue,

      17   which for the unions is a very major issue, that

      18   perhaps at the next full meeting is to have some

      19   presentations, a panel of people who are doing

      20   work in this area.

      21              And sort of a greater explanation.

      22   There was a very good GAO study that was done

                                                         250

       1   looking at some of these issues.  There's more

       2   work going on in that area, you know, some of the

       3   findings that have come out on that, some of the

       4   examples.

       5              So we have a fuller sense of what we're

       6   dealing with and what the issues are here in the

       7   way of some more, you know, formal presentations.

       8              And then with that, perhaps looking at

       9   what the specific issues are, if we want to

      10   develop through a work group.  That would be one

      11   way to establish a base of more information,

      12   before jumping immediately into a work group that

      13   the full committee could benefit from.

      14              DR. SILVERSTEIN:  I think that's an

      15   excellent idea.  It might prevent us from jumping

      16   into something prematurely.

      17              And I would remind the group that

      18   Dr. Howard suggested a couple of subjects where

      19   NIOSH would be happy to come and make the

      20   presentation, for example, on Prevention Through

      21   Design.

      22              So I think that's a good idea.  I would

                                                         251

       1   just be cautious about not getting ourselves in a

       2   situation where we've overloaded ourselves so much

       3   in the way of presentation that we don't have any

       4   time for discussion.

       5              MS. SEMINARIO:  Right.  Right.  Right.

       6              DR. SILVERSTEIN:  So let's be prudent

       7   about it, but --

       8              MR. BORWEGEN:  I just have a process

       9   question on how we want to operate as a committee,

      10   and how often we want to get together, and how

      11   many days you want to get together for.

      12              I don't know if this is the right time,

      13   but you just say, that, you know, many of us have

      14   been doing this work for many years, and you know,

      15   I think many of us have seen the good, the bad,

      16   and the ugly.  And I think there's opportunities

      17   here for us to support OSHA with our

      18   recommendations, and that we have -- we have OSHA

      19   and NIOSH, and there's a level of receptivity

      20   that, by these agencies that we have not seen,

      21   really, in our careers, to some degree.

      22              And so I would wonder -- and I know

                                                         252

       1   we're all very busy, and again, there's more

       2   opportunities than time allows.

       3              But I'm wondering if we want to discuss

       4   the frequency of our meetings and the length of

       5   our meetings, in light of this historic

       6   opportunity that I think has presented itself to

       7   us.

       8              DR. SILVERSTEIN:  I'd be happy to talk

       9   about frequency of meetings and the number of

      10   subgroups and work groups.

      11              I'd like to do that closer to the end

      12   of the meeting, when we're talking about next

      13   steps.

      14              When we do have that discussion, we've

      15   got to distinguish between what we, as a

      16   committee, might like and what OSHA is able to

      17   support in the way of resources, including budget.

      18              Keith Goddard?

      19              MR. GODDARD:  I just wanted to offer

      20   the committee our resources.  Several things that

      21   John Howard mentioned on aging workforce, some of

      22   you may have been on the committee when that

                                                         253

       1   presentation was made in '08.

       2              You know, before we asked John in to

       3   update it, we can send you the link to that

       4   presentation that was made in here in '08.

       5              So there are a lot of things like the

       6   Emory committee on how that functioned.  We can

       7   give you some historic background information that

       8   you can read on your own time to sort of bring us

       9   up to speed before we make commitments.

      10              Peg, on the accuracy of record-keeping,

      11   by September, I should have a summary of the

      12   national emphasis program that's out there.

      13              So, if you want to ask us, the agency,

      14   to give you a quick brief on a specific topic, not

      15   a plethora, or a regulatory [inaudible], I could

      16   do that.  And by September, we could give you some

      17   results from the NEP on things that we actually

      18   are doing.  We should have some information like

      19   that.  And that's just an example.

      20              Before you go on, like Mike said,

      21   forming a committee on an issue that may not have

      22   much information and background, we'd like to make

                                                         254

       1   background information available to you.

       2              DR. SILVERSTEIN:  Yes.  And as you

       3   remember, I urge that we not load the committee at

       4   this meeting with a lot of background documents.

       5   But I think as we go forward, there's some issues

       6   that can best be addressed by providing some

       7   documents to the committee before meetings.

       8              For example, I think we ought to

       9   distribute the OSHA regulatory agenda in advance

      10   of the next meeting.  We don't have to have a

      11   presentation about it necessarily, but information

      12   is going to be key background information.

      13              Emory Knowles?

      14              MR. KNOWLES:  Yeah, Emory Knowles.

      15              Just a quick question, Keith.

      16              On the accurate record-keeping, you

      17   know, the safety incentive programs are certainly

      18   a subset of that discussion, and there's been

      19   quite a bit discussed about employee incentive

      20   programs.

      21              Are you also looking at employer or

      22   executive incentive programs and their role in

                                                         255

       1   accurate record-keeping?

       2              And I think, Peter, that ties a little

       3   bit into your concern.

       4              MR. GODDARD:  The NEP requires

       5   inspectors to gather copies of these programs, so

       6   part of our analysis of the results of them would

       7   be -- and we're not versed, and there's not much

       8   literature out there that we can compare to.  But

       9   we're collecting these, and maybe for our next

      10   meeting I might have sort of a categorization and

      11   characterization of what we've gathered in the

      12   field, in terms of incentive programs.

      13              But they're not really focused on the

      14   executive incentive program in the --

      15              MR. KNOWLES:  It's another side that

      16   certainly needs to be --

      17              MR. GODDARD:  Right --

      18              MR. KNOWLES:  -- thought about.

      19              DR. SILVERSTEIN:  Let me --

      20              Yes, Sarah, Sarah Shortall.

      21              MS. SHORTALL:  Sarah Shortall, NACOSH

      22   counsel.

                                                         256

       1              I just wanted to maybe highlight a

       2   little bit about what the other committees are

       3   doing in terms of having work groups.

       4              ACCOSH has a number of work groups.

       5   They have work groups that are both very general

       6   in nature that tend to be on long-term projects,

       7   they know the agency is going to be continually

       8   working on, such as training.

       9              And then they also establish ones that

      10   are very specific for an issue, such as rollover

      11   protection.  And they're very conscious of, after

      12   they make a recommendation to the agency -- I

      13   mean, excuse me, a recommendation back to a parent

      14   committee, then they even suggest that they be

      15   disbanded.

      16              So this group could do a combination of

      17   those types of committees, one that you see as

      18   more long-term, and short-term.

      19              On FACOSH, the committee dealing with

      20   federal employees, they've established a

      21   particular broad subcommittee dealing with

      22   emerging issues.  So it allows, as something comes

                                                         257

       1   up they want to deal with, they have a

       2   subcommittee to immediately plug something into,

       3   so that a group can be consistently working on

       4   things in between meetings.

       5              So there might be some value on

       6   deciding if you may have certain larger issues

       7   you'd want to do something that allows you to just

       8   now start gathering information, doing other types

       9   of things in between meetings.

      10              Or you could decide you want to wait

      11   for that.  But there are a number of ways to do

      12   it.

      13              The other thing that ACCOSH does, that

      14   I think is very smart is, at least once a year

      15   they look at their list of subcommittees and

      16   decide, are we spreading our members too thin?

      17              And so they're very conscious of trying

      18   to not do it so that the members are asked to do

      19   so much they can't get anything done.  And

      20   sometimes they move committees into a hiatus, just

      21   because that's all they have the time to do.

      22              They're also very conscious on those

                                                         258

       1   committees -- and it is important to remember on

       2   the work group -- to maintain the same type of

       3   balance and representation that you have here.

       4              So what happens at ACCOSH, and I

       5   believe in the maritime advisor committee, is that

       6   there are cochairs that are done, usually a

       7   representative from employers, employees, to make

       8   sure that there is an appropriate balance, and to

       9   make sure that other interests, like the state

      10   representatives, or public representatives in this

      11   case, would also be represented on those work

      12   groups.

      13              So I think that's something very

      14   important to keep in mind.  It is essential to

      15   have that same kind of balance in your

      16   subcommittees.

      17              DR. SILVERSTEIN:  Thank you.  I think

      18   that was very helpful.

      19              Actually, I think it's a good segue

      20   into asking the committee whether or not you feel

      21   that, given what we know at this point, and what

      22   we've heard from the two agencies, are there any

                                                         259

       1   subjects that you think warrant a setting up an

       2   additional work group on at this time?

       3              Or would we be best served by waiting

       4   until the next meeting and digging into some

       5   issues more thoroughly?

       6              I'm not making a proposal on this.  I

       7   don't have a strong view one way or the other.

       8              DR. MURRAY:  I would prefer to wait,

       9   just because the work group -- one work group to

      10   set up is a lot of work, in and of itself.

      11              So I think waiting until our next

      12   meeting makes sense.

      13              DR. SILVERSTEIN:  Are there other

      14   thoughts on that?

      15              Bill Borwegen?

      16              MR. BORWEGEN:  Again, I think we need

      17   to have a discussion on is there anything that

      18   this committee can do that can support an

      19   expeditious promulgation of the injury and illness

      20   prevention standard.

      21              And I don't know if that starts out as

      22   a full committee discussion, and then if we

                                                         260

       1   identify work that needs to be done to support

       2   that goal, then we would defer to a work group.

       3              But at some point we may just want to

       4   do a brainstorm as the full group to see -- you

       5   know, to try to get to things that we could do

       6   that would support that OSHA objective.

       7              DR. SILVERSTEIN:  Other thoughts on

       8   this question about establishing work groups now,

       9   or later?

      10              Yes, Denise Pouget.

      11              ASSISTANT CHIEF POUGET:  I would be

      12   more than happy, because I feel like this risk map

      13   thing I was telling you about, I would be more

      14   than happy to gather that information and bring it

      15   back as just a sample of something that does work

      16   if -- you know, that wouldn't require a whole lot

      17   of effort.  It's already done.  If you wish.  It's

      18   up to you.

      19              I mean, it has the whole reward, you

      20   know, the root cause, the whole package, if you

      21   want to.

      22              DR. SILVERSTEIN:  That may be very

                                                         261

       1   useful.  I think once we make a decision about

       2   work groups, the next thing I want to turn to is

       3   coming up with subjects where we would like

       4   presentations at the next meeting.  And this might

       5   be one of those.

       6              But is there agreement with Linda Rae

       7   that at this time there's no pressing need to set

       8   up another work group?  Or does anybody have a

       9   contrary opinion?

      10              Okay.  Okay.  So we will stick with the

      11   one work group that we've already decided on, and

      12   we'll come back to that in a minute.

      13              But I would like to talk for a couple

      14   of minutes about areas where we would like more

      15   information from the agencies, in order to decide

      16   where we go.

      17              And again, I'll repeat what I said a

      18   few minutes ago.  There are many subjects where

      19   I'm sure we would like to know more, but I don't

      20   want to overload ourselves.  So let's choose a

      21   very limited few where at the next meeting we'd

      22   like to have a full presentation and discussion.

                                                         262

       1              What would you nominate to be on that

       2   list?

       3              Peg?

       4              MS. SEMINARIO:  Well, as I suggested

       5   before -- or proposed before, having a

       6   presentation and a fuller discussion around injury

       7   reporting, the national emphasis program that's

       8   going on now.

       9              I know some of the work that we've done

      10   in the unions, and looking at some of these

      11   issues, maybe have the GAO folks come in and talk

      12   about what they've done.  And they're continuing

      13   to do some work in this area.

      14              And, you know, get some information on

      15   the table and identify what some of those issues

      16   are.

      17              And maybe have a little bit more

      18   presentation from the agency as to what

      19   Dr. Michaels talked about, as to what the agency

      20   sees as its authority in these areas here, as well

      21   as to what is covered by 11(c), what could be

      22   covered by a regulation.

                                                         263

       1              I think having a better sense of that,

       2   because it's one thing to have an 11(c) violation

       3   with respect to an individual worker; it's a

       4   different thing to have in place the regulatory

       5   structure that essentially prohibits certain

       6   practices.  They're different.  They're

       7   complimentary.

       8              So getting a better handle on what the

       9   agency sees in that area, and how that might

      10   relate to an injury and illness prevention

      11   program.

      12              DR. SILVERSTEIN:  Now, I don't want to

      13   place too much under that umbrella, but I'm

      14   reading your suggestion as something that is

      15   somewhat broad, in that it would address a number

      16   of different topics in the area of injury and

      17   illness reporting.

      18              It would include the record-keeping NEP

      19   that's underway.  It might include electronic

      20   record-keeping, as David Michaels was describing,

      21   and some related issues as well.

      22              Am I reading you correctly?

                                                         264

       1              MS. SEMINARIO:  I'm not so sure as much

       2   on the electronic record-keeping.  I think that's

       3   another whole, huge area.

       4              Again, I know the agency is trying to

       5   grapple with this whole issue of accurate

       6   reporting, incentive programs, discipline

       7   programs, what are legal, what are not legal,

       8   where do you draw lines, what's effective, what's

       9   not effective, in trying to get a better sense

      10   of -- in using panel discussions to begin to lay

      11   that out, and perhaps categorize the different

      12   kind of programs that folks are encountering, what

      13   they're seeing, the impacts of those and what's

      14   involved and --

      15              DR. SILVERSTEIN:  So you would include

      16   under this topic the programs that are going to

      17   create incentives for reporting or not report

      18   something.

      19              MS. SEMINARIO:  Oh, yeah.  Yeah.

      20   Incentives for reporting --

      21              DR. SILVERSTEIN:  Okay.  So, broad --

      22              MS. SEMINARIO:  Yeah, the incentives,

                                                         265

       1   the disincentives -- I think looking at the whole

       2   issue of supervisory issues.

       3              And one of the things that was most

       4   interesting about the work that GAO did, they did

       5   a survey, I think of a thousand safety and health

       6   professionals, doctors, people who basically keep

       7   the injury log, injury reporting, and found that

       8   there was incredible pressure on the providers of

       9   services in providing occupational health services

      10   not to report injuries.

      11              DR. SILVERSTEIN:  Well, let's request,

      12   then, at the next meeting, that the agencies

      13   provide a presentation on injury and illness

      14   reporting, including the incentive programs that

      15   lead to over or underreporting.

      16              And I think it would be useful, even if

      17   we don't get fully into the issue of electronic

      18   record-keeping, that you provide us some

      19   background material with the program that you

      20   described earlier.

      21              ASSISTANT CHIEF POUGET:  No problem.

      22              MS. SEMINARIO:  But I guess I would

                                                         266

       1   just also suggest more than just the agency.

       2   Maybe have some other people come in who are

       3   involved in the issue, and maybe have a panel on

       4   it.

       5              DR. SILVERSTEIN:  So you're suggesting

       6   a panel that does that.

       7              MS. SEMINARIO:  Yeah.

       8              DR. SILVERSTEIN:  Well, let me just --

       9   I can, in the interim, discuss that with staff,

      10   and we can organize something for the next --

      11              MS. SEMINARIO:  Sure.

      12              DR. SILVERSTEIN:  I think we can handle

      13   more than one subject like this.  Not a lot more.

      14   But what else would you suggest?

      15              Susan.

      16              MS. RANDOLPH:  Susan Randolph, UNC.

      17              I think what Dr. Howard was talking

      18   about, the Prevention Through Design, something

      19   along that issue would be useful, particularly as

      20   a preventive.  And it might also lead to fewer

      21   injuries and illnesses occurring.  I think some of

      22   that would be very important.

                                                         267

       1              DR. SILVERSTEIN:  Okay.  Reactions to

       2   that?  Personally, I would agree with that.  But

       3   what do other people feel?

       4              MR. DOOLEY:  Yeah, I agree with that.

       5   And just a lot of the things that I hear from

       6   folks that have been involved in those conferences

       7   and projects, is that they're very frustrated,

       8   that they don't feel there's enough leadership

       9   coming out of NIOSH, and something needs to really

      10   bump the system up so that we're doing more work

      11   in this area.

      12              So all the more reason, I think, to

      13   emphasize it and find out more about what's, you

      14   know, what's going on --

      15              MS. RANDOLPH:  More engineering

      16   methods.

      17              MR. DOOLEY:  Correct.

      18              DR. SILVERSTEIN:  So let me suggest

      19   this:  That at the next meeting we continue the --

      20   we hear from the work group that we're setting up

      21   on the oil spill, and we address those issues; we

      22   continue to address those issues, however they've

                                                         268

       1   evolved at that point.

       2              That, secondly, we have a presentation

       3   about injury and illness reporting and the

       4   associated incentive programs.

       5              That we have a program about Prevention

       6   Through Design.

       7              And that you allow me discretion as

       8   chair to work with OSHA and NIOSH staff in the

       9   interim, if there are other issues and subjects

      10   that emerge that really merit significant time on

      11   the agenda, but that we not make decisions about

      12   that right now.

      13              Does that sound reasonable?

      14              Bill Borwegen.

      15              MR. BORWEGEN:  Maybe this request needs

      16   to be fleshed out more, but, you know, what I'd

      17   like -- what I'd like to explore is to get just an

      18   overview of OSHA's overall enforcement, both --

      19   but not just quantitatively, also qualitatively,

      20   to match where their inspections occur relative to

      21   DLS data where people are actually getting

      22   injured, or where most people in the economy work

                                                         269

       1   today.

       2              Because I think there's a mismatch, and

       3   somehow I think we need to explore that more, and

       4   I don't know -- so that's -- maybe I need some

       5   help forming that question.

       6              But, you know, it just bothers me that,

       7   you know, OSHA drives past the hospital with the

       8   2,000 employees to get to the chemical plant where

       9   the 20 people work, and they have a mug with the

      10   OSHA inspector's name on it at the chemical plant,

      11   and the OSHA inspector's never been in that

      12   hospital, and that's where a lot more people are

      13   getting hurt in that hospital than the chemical

      14   plant.

      15              So I don't know, I'm just throwing that

      16   out, and I don't know what to ask of OSHA, but I

      17   think it's a question of quantitative and

      18   qualitative evaluation of their inspection data,

      19   and, of course, the confounding factor is that we

      20   don't have standards that address the hazards that

      21   those hospital workers face.

      22              DR. SILVERSTEIN:  I have no doubt,

                                                         270

       1   though, from discussions that we had yesterday

       2   that Rich Fairfax, Tom Galassi and Keith Goddard

       3   would be happy to make a presentation about the

       4   status of OSHA enforcement.

       5              The question for the committee is

       6   whether or not you think we ought to add that to

       7   the agenda right now.

       8              MR. BORWEGEN:  I don't know.  Maybe

       9   not --

      10              DR. SILVERSTEIN:  What do people think?

      11              MR. SWARTZ:  Jim Swartz.

      12              I just didn't hear that from either

      13   gentleman here.  So they had seemed to have other

      14   concerns.  I don't know if it was just an

      15   oversight issue or if it wasn't ripe for

      16   discussion, but I think they're pretty clear.

      17   Each one gave us four or five items that they

      18   mentioned they needed assistance on.

      19              So maybe we want to focus on those.

      20              DR. SILVERSTEIN:  I understand what

      21   you're saying.  I think that, if I'm not

      22   misinterpreting, I think that one of Bill

                                                         271

       1   Borwegen's points is that information about the

       2   status of enforcement helps to understand and put

       3   in context a lot of the other things that OSHA and

       4   NIOSH are dealing with.  So I think it certainly

       5   would be useful.

       6              The question is, would it be useful and

       7   necessary at the next meeting?

       8              Tim, did you have your hand up?  Or are

       9   you just moving your hand?

      10                  [inaudible speaking]

      11              DR. SILVERSTEIN:  Yes.  Keith.  Keith

      12   Goddard --

      13              MR. GODDARD:  How I would tie that

      14   suggestion back to what [inaudible] and Michaels

      15   talked about, when he mentioned the OSHA

      16   initiative on how we do offsite specific

      17   targeting, I live in that world.  That's what we

      18   do, develop those targeting lists.  And he was

      19   talking about them being two years out from when

      20   we collected data.  So we're aware of a lot of

      21   efficiency mismatches in places that we target.

      22              So we have data going back 14 years,

                                                         272

       1   older OSHA initiative, which we have put up on the

       2   website now.  And we're following his requests.  I

       3   think he said that to you, that he was interested

       4   in how we do targeting.

       5              And so I don't think it's -- I'd just

       6   be prepared to give you an analysis of some of the

       7   things that we're looking at in terms of improving

       8   our targeting, not excluding hospitals,

       9   necessarily, but industries that we are focusing

      10   on.

      11              Take, for instance, oil and gas

      12   industries.  84 percent of them are less than 10

      13   employees, not included.  Should we be targeting

      14   them?  In the last five years, close to 5,000

      15   fatalities.

      16              So those are things that we look at.

      17   So if you want some data, information to help you

      18   decide whether to explore some more or not, Rich,

      19   Tom and I would be glad to work with you on that.

      20              DR. SILVERSTEIN:  Let me suggest a step

      21   in between, like a stepping stone, which would be

      22   that you work with the other directorate heads to

                                                         273

       1   gather and provide the committee with a packet of

       2   background information on the targeting systems

       3   and the enforcement experience; that the

       4   committee, then, members, look at that between now

       5   and the next meeting; we do some feedback

       6   informally by phone or e-mail, and decide whether

       7   or not we'd like a presentation at the next

       8   meeting on any piece of this.

       9              Would that work?

      10              And then as we see how the agenda is

      11   shaping up, what the time looks like, we can make

      12   decisions later.

      13              Peg Seminario.

      14              MS. SEMINARIO:  Just to add to that, I

      15   think it would be useful in preparation for the

      16   next meeting to have some more background

      17   information on other major aspects of the agency's

      18   program.  You talked about getting the regulatory

      19   agenda.  That's one piece of it.

      20              The reg program on enforcement as to

      21   what is going on, and enforcement with some of the

      22   major initiatives are right now, that are

                                                         274

       1   underway, and what's also the experience there.

       2              The other, you know, big piece of

       3   the -- that underlies all this is just information

       4   on resources and budget.

       5              And I don't mean that for

       6   presentations, but I think for all of our work

       7   here, having a sense of those sort of foundational

       8   programs of the agency, and then how to -- these

       9   other specific issues fit into that.

      10              Because one -- kind of the last time

      11   that I was on, I guess -- or a couple of times ago

      12   when I was on NACOSH, one thing that took place --

      13   and I think it was you, actually, when you were

      14   here at the agency, Michael -- that there were a

      15   lot of different initiatives, but they were all

      16   disconnected.  During reinvention years.

      17              So I think one of the things this

      18   committee can bring to the agency is some

      19   feedback, a little different vision, as to how

      20   they fit together, and ways in which these

      21   different initiatives can be mutually reinforcing,

      22   supportive of each other, et cetera, et cetera.

                                                         275

       1              And so having some sense of, again, the

       2   overall foundation, will give us a better handle

       3   on how these things can better fit together.

       4              Because despite the best efforts of,

       5   you know, the agency, they've all got a ton of

       6   work to do in their particular areas, and

       7   sometimes they don't even have time to breathe,

       8   let alone to get to step back and think about, oh,

       9   how this could be connected to that, to basically

      10   be of mutual benefit, so ...

      11              DR. SILVERSTEIN:  I think those are

      12   good points.

      13              There are a couple of related things

      14   that I don't want to lose track of.  One is Roy

      15   Buchan's suggestion that we address the

      16   under-attention that OSHA currently pays to

      17   agriculture safety and health issues.

      18              He made a specific recommendation, but

      19   I think what might be helpful for the next meeting

      20   is to ask OSHA and NIOSH to provide us with some

      21   background information on what is being done for

      22   agricultural safety and health right now, so we

                                                         276

       1   can get a better baseline from which to come back

       2   to your suggestion.

       3              DR. BUCHAN:  Thank you.

       4              DR. SILVERSTEIN:  And I think also

       5   another thing I don't want to lose track of, but I

       6   don't know a way to kind of do anything with it

       7   right now, given the other things, is Linda's

       8   suggestion about somehow fostering a national

       9   discussion about a paradigm shift, about a

      10   different way, or different alternatives to the

      11   current system that was written into the OSHA Act

      12   in 1970.

      13              But I think that's for us to come back

      14   to.  I just don't want to lose it.

      15              What I think I'd like to do now is take

      16   a 15-minute break; then come back and turn our

      17   attention to recommendations and the work group on

      18   oil spill worker protection related to oil spill

      19   recovery.

      20              And then we'll finish up with some of

      21   the administrative details.

      22              And I, for one, need to leave here at

                                                         277

       1   almost exactly 4:30, so I'm going to push us to

       2   conclusion.

       3              Okay.  It's ten after right now.  Let's

       4   take a quick break.  Let's be back here by 25

       5   after.  A 15-minute break, and then we'll finish

       6   up.

       7                     (RECESS TAKEN)

       8              DR. SILVERSTEIN:  I want to reconvene

       9   this meeting at the National Advisory Committee On

      10   Occupational Safety and Health, and I note for the

      11   record that all committee members are still

      12   present.

      13              Has Jim Swartz -- I thought I saw him

      14   there.  All committee members except one are

      15   present.  We have a quorum at the present time.

      16         (RETURNING TO COMMENTS AND DISCUSSION

      17           ON WORK GROUP FOR GULL OIL SPILL)

      18              DR. SILVERSTEIN:  I want to turn

      19   attention now back to consideration of the work

      20   group that we are establishing to address the

      21   protection of workers involved in oil spill

      22   recovery efforts.

                                                         278

       1              I'm going to pass out a possible

       2   statement that would establish that work group.

       3              You'll notice on this statement that it

       4   has a couple of bullet items that might also be

       5   repeated in specific immediate recommendations we

       6   make.

       7              So, for those items, we might take them

       8   off of this document, or leave them there, as both

       9   long-term and immediate issues.

      10              Let me pass this around.  I'll read it

      11   to the group, and then we can discuss it.

      12              Denise worked on this, along with Sarah

      13   Shortall, and I think Deborah helped out with

      14   this.

      15              MR. GODDARD:  Do we have any more?

      16              DR. SILVERSTEIN:  There should be more.

      17              And I think for our next meeting we

      18   will arrange for the proper technology, so that we

      19   can have more things typed and visible on screens,

      20   et cetera.  We'll just do with what we have for

      21   this meeting.  The next meeting will be more

      22   efficient, more technology adept.

                                                         279

       1              NACOSH is establishing a work group to

       2   address the protection of workers involved in oil

       3   spill recovery efforts in the Gulf.  The work

       4   group will exist for an unspecified period of

       5   time.  The work group is charged with developing

       6   the following types of recommendations for

       7   protecting workers involved in oil spill recovery

       8   efforts in the Gulf:

       9              First, recommendations that NACOSH

      10   could make to OSHA and NIOSH regarding short-term

      11   and immediate actions the agency should undertake

      12   to protect workers, such as:

      13              Providing information and training on

      14   personal protective equipment workers should use

      15   in specific oil spill recovery jobs;

      16              Identifying and providing information

      17   on best available control technologies to protect

      18   workers in specific oil spill recovery jobs;

      19              Providing information to workers on the

      20   hazards of excessive work hours in the Gulf

      21   environment, and recommendations on appropriate

      22   work hours for specific types of oil spill

                                                         280

       1   recovery jobs;

       2              Providing information on proper rest

       3   and rehabilitation procedures to protect workers

       4   working in oil spill recovery jobs in the Gulf

       5   environment;

       6              And identifying what types of

       7   communication can be mainstreamed, for example, to

       8   the public, other agencies, health-care providers,

       9   workers and volunteers, and how such communication

      10   should be utilized.

      11              Two:  Recommendations that NIOSH could

      12   make to OSHA and NIOSH on worker protection issues

      13   that emerge or evolve during the recovery efforts.

      14              And three:  Recommendations that NACOSH

      15   could make to OSHA and NIOSH regarding long-term

      16   actions the agency should undertake on worker

      17   protection issues associated with oil spill

      18   recovery efforts in the Gulf, such as conducting

      19   health hazard evaluations and surveillance on

      20   workers involved in the oil spill recovery

      21   efforts, and conducting pilot studies to identify

      22   the most effective worker protection measures for

                                                         281

       1   specific oil spill recovery tasks and jobs.

       2              And I think you'll readily recognize

       3   that this is an effort to balance an agenda that

       4   would provide flexibility and maneuverability to a

       5   committee, but at the same time would signal

       6   enough about the specifics that we consider

       7   important to have some meaning today.

       8              And it would not -- this would not, as

       9   a general charge to a committee, would not be

      10   inconsistent with some other specific

      11   recommendations that we've charged members to work

      12   on during lunch.

      13              And we'll come to that in a couple of

      14   minutes.

      15              So reactions to this.

      16              MR. KNOWLES:  Emory Knowles.

      17              Question relative to the second bullet

      18   of recommendations that NACOSH would make to OSHA

      19   and NIOSH on worker protection issues that emerge

      20   or evolve during the recovery effort.

      21              In order to do that effectively, could

      22   the work group have liaisons with both OSHA and

                                                         282

       1   NIOSH, who could advise the working group on what

       2   issues seem to be emerging or evolving with this

       3   effort?  Otherwise, the work group's going to be

       4   trying to pull stuff out of the air from the media

       5   reports.

       6              DR. SILVERSTEIN:  Right.  I'm not sure

       7   if I understand exactly what you mean, but I don't

       8   see how a work group could conduct its activities

       9   without having fairly regular communications with

      10   the agencies, and having a flow of information

      11   back and forth.

      12              MR. KNOWLES:  Right.  And that's what

      13   I'm asking.  Will there be members of the agency

      14   appointed or designated to assist this team?

      15              DR. SILVERSTEIN:  I see.  Let me ask

      16   how this has been done with work groups

      17   previously.

      18              MR. KNOWLES:  That's how it was done

      19   with --

      20              MS. SHORTALL:  Yes.  Usually, OSHA will

      21   assign a liaison person to every work group that's

      22   established by an advisory committee.

                                                         283

       1              In this case, since we work more

       2   closely with NIOSH in this particular one, I have

       3   to inquire whether they also would be able to

       4   provide a person who would be -- I guess you'd

       5   call it not only assistant, but liaison -- to

       6   provide information.

       7              DR. SILVERSTEIN:  And I think we can do

       8   that.  I just need to check.

       9              MR. KNOWLES:  Yeah.  In the past, for

      10   example, when we had the Hispanic worker outreach

      11   initiative, we did have folks from both OSHA and

      12   NIOSH working with us, and assisting us.  Not on a

      13   full-time basis, just on periodic conference

      14   calls.

      15              DR. SILVERSTEIN:  I think it's fair to

      16   assume that we'll have that kind of support from

      17   the agencies with details to be worked out.

      18              Other thoughts about this draft?

      19              Joe?  Joe Van Houten.

      20              DR. VAN HOUTEN:  I just have a question

      21   that's been kind of on my mind during this whole

      22   discussion, is the relationship between OSHA and

                                                         284

       1   BP.  Because, as issues are emerging, BP's going

       2   to know about them first.  So how does that

       3   relationship work in order for information to flow

       4   between the company and OSHA, so that OSHA, or

       5   this group, can know what the emerging issues are?

       6              DR. SILVERSTEIN:  I don't know --

       7              MS. SEMINARIO:  I know.

       8              DR. SILVERSTEIN:  Okay.  Peg Seminario?

       9              MS. SEMINARIO:  We had a -- the unions

      10   had a meeting with OSHA last week, and NIOSH, on

      11   what was going on down in the Gulf Coast.

      12              Cindy Coe, the Region 4 administrator

      13   for OSHA, as David said, has been charged with

      14   heading up this activity.  And what she informed

      15   us last week is that she now, daily, has a call

      16   with the key safety and health person at BP and

      17   the Coast Guard every morning here, and is getting

      18   information and feedback back and forth on a daily

      19   basis.

      20              And then there's also communications

      21   going on at lower levels as well.

      22              But there's a formal system setting up

                                                         285

       1   immediately, because they really are in a mode of

       2   being on the ground as part of the response.

       3              And then I know that Dr. Michaels and

       4   Jordan Barab, they're having discussions at a

       5   higher level of issues that are coming up, where

       6   they're going directly to the higher-ups within

       7   the corporation of BP who have responsibilities,

       8   as well as the Coast Guard.

       9              So that's what they told us last week.

      10              DR. SILVERSTEIN:  I think it's fair to

      11   say that, without knowing details, that there are

      12   complex issues of authority, accountability and

      13   responsibility that we just can't possibly

      14   understand right now, sitting in this room.

      15              I would think that it would be very

      16   useful and helpful for the work group, as it

      17   engages in its tasks, to become more informed

      18   about that.

      19              Keith Goddard?

      20              MR. GODDARD:  This is evolving as we

      21   speak.  And there should be an MOU between OSHA

      22   and the Coast Guard that's imminent.  David

                                                         286

       1   assigned it.  It's back over with the Coast Guard.

       2              And then there's the incident command

       3   structure which has been established.  This MOU

       4   sort of establishes the communication and

       5   sub-jurisdictional issues.  It will be made public

       6   as soon as it's signed.

       7              So your question is being revealed as

       8   we speak -- your answer, the answer to your

       9   question, as well as what Peg says is happening on

      10   the ground level.

      11              DR. SILVERSTEIN:  Okay.  And what I

      12   think is clearly appropriate is for us to request

      13   of the agencies that you provide information about

      14   those responsibilities to the full committee as

      15   that information is available.

      16              MR. GODDARD:  Right.

      17              MS. SEMINARIO:  Right.  Could I just

      18   add to that, also NIOSH.  Because there's a

      19   different set of structures set up in dealing with

      20   the public health response of the surveillance

      21   systems that we understand are going back through

      22   some of the state health departments through CDC

                                                         287

       1   reporting mechanisms.

       2              So there's a lot of different moving

       3   pieces.

       4              So I think getting from both agencies,

       5   both OSHA and NIOSH, a better, full sense of how

       6   they are operating and what those systems are, and

       7   how they're connected, both in terms of the

       8   immediate response, but also to other agencies,

       9   would be really helpful.

      10              DR. SILVERSTEIN:  So, Paul, can we just

      11   extend that request for information about roles

      12   and responsibilities to NIOSH as well?

      13              DR. MIDDENDORF:  Yes.

      14              DR. SILVERSTEIN:  Linda Rae Murray.

      15              DR. MURRAY:  I want to make sure of

      16   this language.  I don't think it -- I don't think

      17   this language makes it possible to have people

      18   that are not on this committee function with the

      19   working group.  I think that was mentioned

      20   earlier, but it wasn't --

      21              DR. SILVERSTEIN:  The 1912(a) rules

      22   allow for the assistant secretary, at our request,

                                                         288

       1   to designate experts and consultants to work with

       2   one of our work groups.

       3              And as the work group takes shape, I'll

       4   take recommendations from the work group that can

       5   be forwarded to the assistant secretary.

       6              MS. SHORTALL:  The work group meetings

       7   are also open to the public, and so members of the

       8   public, in addition to appointed experts and

       9   consultants would also be allowed to participate.

      10              DR. SILVERSTEIN:  Well, if I'm not

      11   mistaken, the rules give the chair some discretion

      12   as to when and how public -- the public may make

      13   comments to, or have discussion with the

      14   committee.

      15              MS. SHORTALL:  There's two different

      16   things.  In the subgroup, it's much more informal.

      17   People usually talk around the table and whoever

      18   the chairs are, you know, conduct and try to

      19   gather together the materials that would be

      20   reported back to the parent committee.

      21              Under both FACA, and 1912.8, you as the

      22   chair can allow people to speak before this

                                                         289

       1   meeting, although that is not the general

       2   practice.

       3              DR. SILVERSTEIN:  Okay.  Thank you.

       4   Other comments about this language establishing a

       5   work group?

       6              Since this is not a recommendation to

       7   the agencies, I don't think we need anything other

       8   than general agreement about this.

       9              Are there any reservations about the

      10   language that's in here?

      11              DR. BUCHAN:  I think it looks good.

      12              DR. SILVERSTEIN:  Okay.  Bill?

      13              MR. BORWEGEN:  Bill Borwegen, SCIU.

      14              So, my only -- I guess I need to have

      15   clarity, so -- the recommendation at NIOSH -- that

      16   NACOSH can make to OSHA and NIOSH in worker

      17   protection issues that emerge, or are evolved

      18   during the recovery efforts, does this mean

      19   that -- I'm just thinking time-wise, does this

      20   mean that the earliest that we would provide any

      21   recommendations to NIOSH or OSHA would be at the

      22   next September meeting?

                                                         290

       1              DR. SILVERSTEIN:  No, in that can't

       2   we're going to turn right now to recommendations

       3   that we want to make today.

       4              MR. BORWEGEN:  Oh, okay.  Okay.  First

       5   we form the work group and then we start making

       6   recommendations.

       7              DR. SILVERSTEIN:  Now, before we turn

       8   to those, the next question I've got has to do

       9   with membership on this work group.  And keeping

      10   in mind that we're not setting up other work

      11   groups right now, so there's no danger of overwork

      12   here.

      13              I would like to know who would, before

      14   I -- before I start appointing people, who are

      15   doing similar things, I would like to know who

      16   would be interested in serving on this work group.

      17              Denise, Timothy, Roy, Peter Dooley.  I

      18   think that works.  Anybody else?  And Peg

      19   Seminario.  Sorry.

      20              There remains the question of who is

      21   going to be chair of this subcommittee.  Let me

      22   think about that, and let you think about that.

                                                         291

       1              And counsel is suggesting cochairs.

       2              That sounds like the voice of

       3   experience, in recommending that.

       4              I don't know, and Peg Seminario is

       5   shaking her head.  Sometimes I've been in groups

       6   where cochairs work well, and other times where it

       7   doesn't.

       8              Let's set this aside.  I ask those who

       9   volunteered for the committee to think about this,

      10   and we'll come back to it, and before the end of

      11   the meeting somebody will be appointed chair.

      12              Somebody wrote down the list?

      13              MS. SEMINARIO:  No.

      14           (WORK GROUP DESIGNEES AS FOLLOWS:)

      15              DR. SILVERSTEIN:  Denise Pouget, Tim

      16   Key, Roy Buchan, Roy Dooley and Peg Seminario.

      17   Excellent.

      18              Now, let's turn to the possible

      19   immediate recommendations -- or the

      20   recommendations that we're going to make.

      21              And I know we're -- four of those that

      22   we asked for some work to be done on, one of which

                                                         292

       1   might have been -- we asked Linda Rae Murray to

       2   work on.  It might be a preamble, but might be a

       3   recommendation within itself.

       4              Do you want to start with that one?

       5              DR. MURRAY:  Then people can decide on

       6   it.

       7              DR. SILVERSTEIN:  And, please, I

       8   understand that anxiety and frustration is going

       9   to rise as soon as we start reading from documents

      10   you don't have in front of you.  Let's just try to

      11   work with us.

      12              DR. MURRAY:  "The Gulf oil spill of

      13   2010 represents one of the largest threats to

      14   environmental quality and health of workers in

      15   surrounding communities in our history.

      16              "An appropriate response to this public

      17   health emergency will require the use of broad

      18   public health interventions and tools in order to

      19   protect the environment and the health of workers

      20   in the communities.

      21              "We urge a coordinated and unified

      22   implementation of worker and community emergency

                                                         293

       1   temporary standards in order to protect the health

       2   of the population.

       3              "We urge a coordinated communication

       4   and media plan to inform workers and the general

       5   public about risks to human health and the

       6   environment and reflect the urgent and rapidly

       7   evolving situation in the Gulf.

       8              "We urge the active and continuing

       9   involvement in coordination of all relevant

      10   federal agencies."

      11              And I listed some.  I don't know --

      12              "EPA, NIOSH, CDC, FDA, Coast Guard,

      13   OSHA, state and local public health agencies,

      14   civic and community groups, industry and labor

      15   experts, to address this emergency."

      16              And this last sentence, because I had

      17   read what Peg had written for funding, may or may

      18   not be necessary.  But it's an attempt to bridge.

      19              "Appropriate responses to this threat

      20   to health and environment require adequate

      21   funding, which must be borne by those industries

      22   responsible for this disaster."

                                                         294

       1              DR. SILVERSTEIN:  Let me ask this:

       2   Without concern for the specific wording, does

       3   that appeal to people like it might be an

       4   appropriate preamble, with a sentence at the end

       5   saying, with this in mind, the following specific

       6   recommendations are made?

       7              Or does it sound more like something

       8   that would be a recommendation in and of itself?

       9              I'm just asking for kind of gut feel

      10   now, based on what you've heard very quickly.

      11              MR. BORWEGEN:  Well, I mean, it's an

      12   overview, and I would hope that, you know, it

      13   would be supplemented by very concrete steps.  So

      14   an overview, preamble ...

      15              MS. SHORTALL:  Could you just read the

      16   initial, maybe, first sentence of it?

      17              DR. MURRAY:  "The Gulf oil spill of

      18   2010 represents one of the largest threats to

      19   environmental quality and health of workers and

      20   surrounding communities in our history."

      21              MS. SHORTALL:  Okay.  And then, I

      22   guess, the second one.  Excuse me.

                                                         295

       1              DR. MURRAY:  "An appropriate response

       2   to this public health emergency will require the

       3   use of broad public health interventions and tools

       4   in order to protect the environment and the health

       5   of workers in the communities."

       6              MS. SHORTALL:  If this is a

       7   recommendation, what is it that you're

       8   specifically requesting --

       9              DR. MURRAY:  Right.

      10              MS. SHORTALL:  -- OSHA to do?

      11              DR. MURRAY:  Right.  So my

      12   understanding of this, which I'll be glad to type

      13   up -- my understanding of this was that this was

      14   sort of an introduction.  I don't use the word

      15   "recommendation."

      16              I do later on have a couple of

      17   sentences that says, we urge this, we urge that,

      18   which are, again, very broad in nature.

      19              And I can rework -- if we decide it

      20   should be a recommendation, I can put in

      21   "recommendation."

      22              But, again, my thinking was that then

                                                         296

       1   the specific three recommendations that we talked

       2   about before lunch would follow this.

       3              DR. SILVERSTEIN:  I think -- that feels

       4   right to me.  If the committee would agree that

       5   the language is good, with or without fine tuning,

       6   but if the committee is basically in agreement

       7   with what Linda read, then I think it more

       8   appropriately is a preamble, followed by specific

       9   recommendations.

      10              MS. SHORTALL:  The specific

      11   recommendations need to be something you're

      12   requesting that OSHA do.

      13              DR. SILVERSTEIN:  Yes, we're going to

      14   get to that.

      15                (SIMULTANEOUS SPEAKING)

      16              DR. SILVERSTEIN:  We're going to move

      17   to that in just a minute.  And I would agree that

      18   that is more specific than what we just heard.

      19              Timothy Key.

      20              DR. KEY:  I kind of -- Tim Key.

      21              I kind of reinforce what you were

      22   saying, Michael, about this, that it's a preamble.

                                                         297

       1   It's almost like a "whereas" and then the specific

       2   recommendations to follow that.

       3              DR. SILVERSTEIN:  Keith Goddard?

       4              MR. GODDARD:  Just to help you in

       5   resources on time, if you give us that and the

       6   other following recommendations, whoever is

       7   familiar.  We deal intensely with track changes.

       8              We could circulate that tomorrow to a

       9   lot of committee members.  Everybody comment on

      10   track changes and coordinate it into one document,

      11   and have it to you by the end of the week.

      12              DR. SILVERSTEIN:  I appreciate that,

      13   and I think that's going to be necessary.  But my

      14   understanding also is that a decision on

      15   recommendations needs to be made in this meeting.

      16              So we have to agree, without seeing

      17   that final document, and just --

      18                (SIMULTANEOUS SPEAKING)

      19              DR. SILVERSTEIN:  Right.  We can check

      20   with the transcript to make sure that we haven't

      21   missed anything.

      22              I think I saw another hand.

                                                         298

       1              Okay.

       2              Well, we can come back to the language

       3   there, but let's presume now that that would be a

       4   "whereas," a preamble.  I'm not suggesting it be

       5   rewritten in a "whereas" form, but it would be of

       6   that nature.

       7              Let me read draft language on one of

       8   the other -- the three specific recommendations

       9   that we've assigned.  And this one has to do with

      10   the work hours and schedules.

      11              The first sentence is an introductory

      12   one, and it may no longer be necessary, given the

      13   preamble.  But the way I wrote it is:

      14              "Gulf oil spill recovery activities

      15   have been" -- it probably is.

      16              "Gulf oil spill recovery activities

      17   have been characterized by long work hours, under

      18   conditions requiring extreme physical exertion and

      19   exposure to hot and humid environments.

      20              "NACOSH believes that long hours of

      21   work, whether measured by individual work shift or

      22   weekly, especially under conditions of physical

                                                         299

       1   exertion and heat exposure, are associated with

       2   work-related injuries and other adverse health

       3   effects.

       4              "While NACOSH does not recommend

       5   specific limits on work hours or schedules at this

       6   time, the committee believes that, at least work

       7   shifts more than 12 hours, and work weeks more

       8   than 60 hours, are excessive.

       9              "NIOSH advises," or recommends -- I'm

      10   not sure what the right word is --

      11              MS. SHORTALL:  NACOSH.

      12              DR. SILVERSTEIN:  I did that before as

      13   well, and I'll probably do it again.

      14              "NACOSH advises or recommends that OSHA

      15   and NIOSH provide immediate information and advice

      16   to employers and employees regarding work hours

      17   and work schedules considered to be excessive.

      18              "NACOSH further advises the agencies to

      19   expedite the establishment of more formal

      20   guidelines and rules governing work hours and work

      21   schedules, including but not limited to the

      22   possible promulgation of an emergency temporary

                                                         300

       1   standard for Gulf oil spill recovery workers.

       2              "This should also include consideration

       3   of proper rest and rehabilitation procedures for

       4   such work and working environments."

       5              DR. BUCHAN:  I have a question.

       6              DR. SILVERSTEIN:  Yes.

       7              DR. BUCHAN:  This is for the OSHA

       8   people.

       9              Do you have a heat stress standard with

      10   work rest regimen?

      11              DR. SILVERSTEIN:  I think a number of

      12   us can answer that.  No.

      13              UNKNOWN VOICE:  Okay.

      14              UNKNOWN VOICE:  [inaudible]

      15              ASSISTANT CHIEF POUGET:  Mr. Chair?

      16              DR. SILVERSTEIN:  Yes.  Denise.

      17              ASSISTANT CHIEF POUGET:  Do you think

      18   this would be an appropriate time --

      19              MS. SHORTALL:  Yes.  Well, first of

      20   all, in terms of doing the formal thing, is that a

      21   motion that you are making?

      22              DR. SILVERSTEIN:  Not yet.

                                                         301

       1              MS. SHORTALL:  All right.

       2              DR. SILVERSTEIN:  I have it on the

       3   table for discussion.  And at the appropriate

       4   time, I'll turn it into a motion.

       5              MS. SHORTALL:  All right.

       6              DR. SILVERSTEIN:  Though I -- it's a

       7   motion in part.  We have to reach an agreement.

       8              DR. MURRAY:  Maybe -- this is just

       9   procedure -- if we read all these little homework

      10   assignments over lunch, and have some brief

      11   discussion, then I think we could quickly get to

      12   the motion that would include all four of them.

      13              DR. SILVERSTEIN:  Yeah.  We make

      14   recommendations with approval of the majority of

      15   all committee members present, so we are going to

      16   have to take a count in some way.  It doesn't have

      17   to be a motion, I think, but we are going to have

      18   to be sure we have a majority.

      19              But let's come back to the point that

      20   you were about to make, Denise.

      21              ASSISTANT CHIEF POUGET:  Yeah.  I was

      22   discussing with Sarah during lunch that -- just

                                                         302

       1   elaborating a little bit more on when I was

       2   talking about rehabilitation -- we've had, in the

       3   fire service an NFK standard, Standard 1584, on

       4   rehabilitation.

       5              And I was finding out through

       6   conversation with Sarah that for some people that

       7   language might be a little confusing.

       8              What that means is during extensive

       9   stressful work periods, we have a required rehab

      10   before you go back into a stressful environment or

      11   an ideal age immediate hazard to life environment.

      12              And we do medical monitoring.  We have

      13   a person, you know, take a rest break.  We stress

      14   the hydration.