STATE OF CALIFORNIA - DEPARTMENT OF INDUSTRIAL RELATIONS Arnold Schwarzenegger, Governor
OCCUPATIONAL SAFETY
AND HEALTH STANDARDS BOARD
2520 Venture Oaks Way, Suite 350
Sacramento, CA 95833
(916) 274-5721
FAX (916) 274-5743
Website address www.dir.ca.gov/oshsb
Board Meeting Minutes
August 20, 2009
Page 20 of 20
SUMMARY
PUBLIC MEETING/PUBLIC HEARING/BUSINESS MEETING
August 20, 2009
Sacramento, California
I. PUBLIC MEETING
A. CALL TO ORDER AND INTRODUCTIONS
Chairman MacLeod called the Public Meeting of the Occupational Safety and Health Standards Board (Board) to order at 10:00a.m., August 20, 2009, in the Auditorium of the State Resources Building, 1416 9th Street, Sacramento, California.
ATTENDANCE
Board Members Present Board Members Absent
Chairman John MacLeod José Moreno
Jonathan Frisch, Ph.D.
Bill Jackson
Jack Kastorff
Guy Prescott
Willie Washington
Board Staff Division of Occupational Safety and Health
Mike Manieri, Principal Safety Engineer Len Welsh, Chief
David Beales, Legal Counsel Steve Smith, Principal Safety Engineer
Tom Mitchell, Senior Safety Engineer
Bernie Osburn, Staff Services Analyst
Chris Witte, Executive Secretary
Others present
Bo Bradley, AGC of California Larry Pena, Southern California Edison
Christine Issel, Phylmar Regulatory Roundtable Norman Brown, Delta Construction Co., Inc.
Jeremy Smith, Labor Federation Bruce Wick, CalPASC
Steve Johnson, ARC-BAC Judi Freyman, ORC Worldwide
Kevin Thompson, Cal-OSHA Reporter Chris Anaya
James Defour, Defour Law Timothy Smith, CSLB BLET Teamsters
Greg Allaire, Southwest Carpenters Dave Mansheim, Bard Date
Jerry Shupe, Hensel Phelps Construction Co. Dave Harrison, Operating Engineers Local 3
Patrick Bell, DOSH Dan Leacox, Greenberg Traurig
Michael Donlon, DOSH Joan Gaut, California Teachers Association
Lauren Hormigoso, Federal OSHA D.G. DeLicana
Steve Johnson, ARC-BAC Dan Leacox, Greenberg Traurig
Debbie Prince, MCE Wendy Holt, AMPTP, CSATF
B. OPENING COMMENTS
Chair MacLeod indicated that this portion of the Board’s meeting is open to any person who is interested in addressing the Board on any matter concerning occupational safety and health or to propose new or revised standards or the repeal of standards as permitted by Labor Code Section 142.2.
Dan Leacox of Greenberg, Traurig stated that he was speaking on behalf of the National Elevator Industry, Inc., to answer Board members’ questions raised when he briefed them about performance based code for elevators (PBC) last October. He stated that Accredited Elevator/Escalator Certification Organizations (AECOs) play a central role in the PBC. AECOs are accredited organizations that certify compliance with the PBC. They assess and possibly certify that new elevator technology meets or exceeds PBC safety requirements and parameters. The assessment is performed using the requirements of International Organization for Standardization (ISO) Guide 65, which requires that testing and testing procedures are in accordance with ISO standard 170256.
AECOs may be accredited by three organizations: the American Society of Mechanical Engineers (ASME), the Standards Council of Canada, or the American National Standards Institute (ANSI). ANSI is the official U.S. representative to ISO and enjoys worldwide recognition and acceptance of its accreditation program for product certification bodies. ANSI recently accredited three AECOs. Mr. Leacox stated that this was the development of which he wanted to apprise the Board, because there had been a number of questions about AECOs in October, but none had been accredited at that point. The ANSI press release states:
The AECO designation demonstrates that accredited organizations are competent and capable at assessing compliance to standards that help assure the safety and reliability of elevators and escalators.
One ANSI-certified AECO is Underwriters Laboratories, Inc. (UL), which is a Nationally Recognized Testing Laboratory (NRTL) approved by OSHA. UL currently certifies elevator components for conformance with ASME A17.5, the standard for elevator control equipment. UL also certifies elevator components for conformance with the National Electrical Code, NFPA70. California already accepts such equipment with some reliance on these UL certifications. Searching its website for other examples of UL experience with elevators, Mr.Leacox found existing UL standards for elevator access doors, elevator door blocking devices and contacts, elevator cables, and elevator controls. Mr. Leacox stated that there had been some question as to whether AECOs had experience with worker safety generally or elevators in particular.
Another certified AECO is the Lift Institute, founded in 1933, which was the first European certification institute to be appointed as a Notified Body for all fields of action relating to the European Lift Directive adopted in 1995. This means that Lift Institute certifications of conformance with the Lift Directive are valid all over Europe. The Lift Directive includes a performance based code, which has been fully in force since 1999. The Lift Institute is also the leading Dutch Institution for safety inspections of elevators, elevating and transport equipment, fairground attractions, and escalators.
The third ANSI certified AECO is TUV SUD America, Inc., which is a NRTL approved by OSHA that already certifies elevator components for conformance with the National Electrical Code and examines model elevators and elevator safety components for conformance with the European Lift Directive.
AECO certification is not a one-time service. AECOs perform a follow-up service to assure continuing conformance with PBC. Changes to the certified component or its use must be recertified. The follow-up service includes ongoing factory inspections, compliance review, and other surveillances to ensure certified equipment is being manufactured and installed as required. The follow-up service is mandatory to maintain certification.
At the PBC advisory meeting, Mr. Welsh asked whether AECOs would have product liability stemming from their certifications. Lawyers at Greenberg Traurig (Mr. Leacox is not a lawyer) researched that question and came up with three particularly relevant cases. Two cases, one of which was a California Court of Appeal case, held that certifying entities are liable when products they certify cause injury. The third, also a California case, clarified that certifying part of a product does not create liability for a product defect that was not within the scope of certification. Greenberg Traurig did not find any contrary cases. Mr. Leacox volunteered to supply the case citations for the Board’s reference.
AECO certification adds a layer of risk assessment by someone other than the manufacturer and the state. AECO certification comes with a Code Compliance Document that includes an overall description of the equipment; a description of the elevator system, sub-system, component, or function being certified; a list of the prescriptive code sections addressed by compliance with the PBC; the technical documentation necessary to demonstrate conformity and enable verification of conformance; a list of the safety requirements considered; the risk assessment report, including team members, their relevant expertise, and the completion dates of risk assessment processes; procedures for acceptance inspections and acceptance tests to verify conformance with the Code Compliance Document; and procedures for tests, periodic inspections, maintenance, replacements, adjustments, and repairs to be incorporated into the maintenance document required by prescriptive code.
Mr. Leacox expressed confidence that with the value added by AECOs to the safety evaluation process, the Board will find that the performance based code is at least as effective as the current code in assuring worker and public safety.
Jerry Shupe, Chair of the Associated General Contractors (AGC) of California Safety and Health Council, stated that AGC members are concerned about the amount of time it is taking the Division staff to talk to petitioners about OSHSB Petition File No. 507 regarding exhaust and modifications of equipment. At the Standards Board meeting on November 20, 2008, the Board adopted the proposed petition decision, and Dr. Frisch emphasized that the staff not become distracted and to focus on the safety perspective only. Since then, staff has met and talked with the California Air Resources Board (CARB), an interested party, several times and has not met with the petitioners to date. While waiting for final language, contractors can only comply with CARB or OSHA regulations. The staff is meeting with petitioners today, and CARB has asked that the Board adopt ISO standards instead of the language proposed by petitioners. AGC feels ISO is not as stringent as California or Federal OSHA, and therefore is not acceptable. AGC asked to know how the Board would address this matter.
Dr. Frisch asked whether there was a deadline for staff to report back to the Board regarding the petition. Mr. Manieri expressed the belief that there is a one-year deadline. [Board staff clarification: Once a petition decision is adopted by the Board, there is no specific deadline for action on that decision. However, Board staff has been working on this matter since the November 20, 2008, meeting.]
Dr. Frisch then asked the Division whether the meetings with CARB were transparent, open, public meetings, or whether they were being privately held. Mr. Welsh responded that the Division is not running that process. He expressed his understanding that the Executive Officer, who is not present at today’s meeting, is supervising the interactions. He expressed regret, but stated that because of the Executive Officer’s absence, it would not be appropriate to discuss this issue today. He further stated that he would be happy to meet with the Executive Officer when she was back in the office to accelerate the process.
Mr. Manieri stated that Board staff would be meeting with petitioners this afternoon. Dr. Frisch asked whether CARB would be present at that meeting, and Mr. Manieri responded in the negative. He stated that Board staff had met with CARB separately.
Dave Harrison with Operating Engineers Local 3, co-petitioner for OSHSB Petition File No. 507, stated that it is infrequent for labor and management get together unanimously in support of a more stringent standard, which was proposed in the petition. CARB has not only opposed the petition, but suggested alternate, less stringent language. ISO 5006 is a European standard used with metrics, and it is not recognized anywhere in the United States. Petitioners feel that staff has met with CARB on several occasions and have yet to meet with the petitioners. It is not CARB’s petition, it was submitted by AGC and Operating Engineers. Petitioners feel they are being left out in the cold. The agenda for today’s meeting includes the proposed adoption of OSHSB Petition File No. 508, which comes after Petition 507, and he asked that the process be expedited and staff propose a solution for the petition.
Mr. Beales stated that there has, indeed, been a petition decision, which was reached in a timely fashion by the Board. There is no subsequent deadline for taking action.
Dr. Frisch asked whether the petition decision was to form an advisory committee or for meetings to be held. Mr. Beales responded that the petition decision was for meetings to be held.
Jeremy Smith of the California Labor Federation stated that one of the good things about Petition507 is that staff get together with labor and management in an advisory committee and discuss the issues. Unfortunately, on this petition, Standards Board staff is meeting with Cal-EPA staff and has not included not only labor, but the petitioners. That is something that California Labor Federation does not believe should happen. He stated that the petition decision was adopted last November, there have been several discussions regarding the petition, and the discussion today indicated that a petition decision was made. This is all news to the labor community, and Mr. Smith expressed the hope that the labor community would be more included in this petition process, especially given that Operating Engineers Local 3 were the petitioners in this case. Mr. Smith stated that he had also been told that there might be some equipment being used in the field in California that might have some of the Cal-EPA required accoutrements attached, which is a safety concern. He stated that is difficult to see out of some of the large construction equipment when the Cal-EPA filters are attached. He expressed the hope that Standards Board staff would look to include labor at an earlier point than they have with this petition, and he stated that he was pleased that there is a meeting scheduled for this afternoon.
Norman Brown, President of Delta Construction Company, stated that he is a past member of AGC and still supports their efforts. In addition he had been a member of the Off-Road Implementation Action Group for CARB representing small business for the state of California. He stated that when he heard about this issue several months ago and the proposal that California use the ISO standards, he requested a copy of the ISO standards, but CARB was unable to supply one to him because it was secret. He was told that he had to get it online, and he had to pay for it.
The 20-page ISO standard comes from Stockholm, Sweden, and it costs $90. When he objected to the price because he only wanted to read the standard, he was told he could not read it without paying for it, but he might be able to get it from other sources. He stated that there are approximately 175 stations that are members of the ISO; the United States is not one of them. He found the standard from another source for $70; unfortunately, it came to him in Portugese.
He stated that he was finally able to acquire a copy of the ISO standards, and it calls for cameras on the back of the equipment. Cameras work for on-highway trucks, and they are used frequently, because they are on smooth surfaces and they stay clean. They do not work on off-road equipment. Because of the terrain and other conditions encountered by off-road vehicles, the cameras will not remain functional for very long because the screen will become obscured by dirt or the camera will break, and someone is going to get hurt or killed by a truck backing over him. Some of the equipment, such as loaders, back up as much as it goes forward, and some of it is up to 11 feet tall. The operator cannot see a person behind the vehicle very well, even under the off-road equipment as manufactured. The large filters required by CARB further limits that visibility.
Mr. Brown stated that a company in Southern California purchased the filters through the Moyer Foundation and mounted them on their equipment. They had the equipment inspected by an OSHA representative (Mr. Brown was unsure whether it was a Federal OSHA or Division representative), who stated that the employer would be cited if the equipment were put in use with the filters. The employer took the filters off of the equipment, and the Moyer Foundation demanded their money back. The employer stated that the money had been used for its intended purpose, but the equipment could not be used with the filters attached without being in violation of OSHA regulations regarding visibility.