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STATEMENT: House Committee on Education and the Workforce's hearing of the Workforce Protections Subcommittee on the enforcement and regulatory activities of the OSHA

October 7, 2015
The Honorable Tim Walberg
Chairman, Workforce Protections Subcommittee
House Committee on Education and the Workforce
U.S. House of Representatives
Washington, DC 20515

Dear Mr. Chairman,

NRCA wishes to commend you for holding a hearing of the Workforce Protections Subcommittee on the enforcement and regulatory activities of the Occupational Safety and Health Administration (OSHA). NRCA has been a leader on the critical need to advance safety within the roofing industry for many years, and we appreciate the opportunity share our views on OSHA policy at this time.

Established in 1886, NRCA is one of the nation's oldest trade associations and the voice of professional roofing contractors worldwide. NRCA has approximately 3,500 members in all 50 states who are typically small, privately held companies, with the average member employing 45 people and attaining sales of about $4.5 million per year.

NRCA wishes to comment on the preliminary 2014 occupational fatality statistics that were recently released by the U.S. Bureau of Labor Statistics and the implications for OSHA policy. The BLS fatality totals are discouraging to say the least. Deaths from falls in the roofing industry and in residential building construction have increased steadily from 2011:

Roofing industry deaths from falls   Residential building construction deaths from falls
2014—69   2014—53
2013—66   2013—44
2012—65   2012—49
2011—61   2011—27

Given the increase in the BLS fatality numbers with respect to roofing and residential construction, we are pleased that members of Congress are reviewing the effectiveness of OSHA policies at this time.

In 2010, OSHA announced it was rescinding a directive that had been in place for over a decade that allowed alternative fall protection options for certain residential construction work along with conventional systems. The enforcement date under that directive was June 16, 2011. OSHA's stated purpose for rescission was that construction fatalities continued to rise. Only conventional fall protection systems are currently allowed (guardrails, safety nets and personal fall arrest systems or harnesses) under the new rule unless infeasible. Despite a history of over ten years of effective alternative fall protection options, OSHA refused to acknowledge conditions where conventional fall protection does not work. At a meeting of the Advisory Committee on Construction Safety and Health, OSHA's representative stated "you can't say across the board, there is (sic) these situations that it (conventional fall protection) is infeasible."

In fact, state plan states that are authorized under the Occupational Safety and Health (OSH) Act of 1970 (P.L. 91-596) to develop rules and administer their own occupational safety and health agencies often allow for alternative methods of fall protection in a number of construction operations. Importantly, those state plan states have significantly better fatality rates from falls during construction operations than states operating under the federal rules. Specifically, Arizona, California, Oregon and Washington have fatality incidence rates well below those of states operating under federal OSHA rules and lower also than state plan states that enforce the federal rules. (Arizona recently submitted to enforcing the federal rules rather than their alternative fall protection rules previously in effect due to pressure from OSHA to take over the Arizona state plan.) OSHA is moving to force all state plan states to have their construction OSH regulations mirror those of the federal government. This is being initiated under the guise of language in the OSH Act that says that state rules must be "at least as effective" as the federal rules. OSHA argues that phrase means they must be exactly the same. However, the agency never quotes the exact language from the OSH Act in this regard with respect to state plan rules: "which standards (and the enforcement of which standards) are or will be at least as effective in providing safe and healthful employment and places of employment as the standards promulgated under section 6?" (Italics added). The congressional intent of the OSH Act was to provide for safe places to work through regulatory means that achieved that result?not to achieve regulatory symmetry as its only empty goal.

Some examples of construction fatality rates in state plan states versus federal states illustrate that state plan states that allow alternative fall protection options have significantly lower incidences of fatalities. In 2014, Oregon, a state plan state with unique fall protection requirements, had a construction workforce of about 81,000 workers. There were 6 deaths in the construction industry that year in the state and Oregon reported no fatalities from falls, slips, or trips. Alabama is a state under federal jurisdiction and conventional fall protection rules with a construction workforce also of about 81,000. Alabama had 9 deaths in construction in 2014, 5 of which were the result of falls, slips, or trips. California is a state plan state with a construction workforce 30,000 greater than Texas (a federal state) at about 700,000. California had 47 construction fatalities in 2014 compared to 105 in Texas. Of the construction deaths related to falls, slips, or trips, California had 21 compared to 29 in Texas.

State-plan administrators have long complained about OSHA's focus on inspection numbers and other such data while ignoring state fatality, injury and illness figures that are historically significantly better than federal states. Recently, during OSHA's audit process of states that operate under its state-plan authorization, OSHA was critical of many of the metrics that state plan administrators had failed to meet for the previous year for number of completed jobsite inspections and other administrative goals. For example, Washington (a state plan state) proposed to have 4,099 safety inspections in 2014 but only had 3,961?a variance of 3.4%. This was considered a major failure by federal OSHA auditors. However, ignored by federal officials was the fact that in 2014, Washington had 7 construction fatalities with a construction workforce of about 180,000; Illinois (a federal state) had 32 deaths in construction?over 4 times as many with a little over a 10 percent greater workforce of 200,000. These state plan states appear to have achieved "safe and healthful employment and places of employment" as the OSH Act intended without identical regulatory language.

Now, after having forced Arizona to rescind its construction regulations under its state plan, OSHA has turned its sights on California, Oregon and Washington to bring their rules into lock step with the federal rules. This, despite much better injury, fatality and illness rates that each state has delivered that far surpass any comparable federal state. The flaw in OSHA's management of the occupational safety and health environment is its failure to take a comprehensive approach that goes beyond specific regulatory requirements to incorporate a variety of hazard control options for complex environments found in the construction industry, particularly fall protection system options, state outreach resources and efforts, and successful local initiatives and practices that produce better injury and fatality rates. Until OSHA broadens its perspective and embraces the expertise of others in the occupational and safety arena, it will continue to be a part of the problem rather than a solution to workplace hazards.

NRCA appreciates the opportunity to provide the views of professional roofing contractors throughout the U.S. to the Subcommittee with respect to OSHA policies and enforcement. We look forward to continuing to work with Congress and agency officials to promote federal and state policies that result in the safest possible working environment within the roofing industry.


William A. Good
Chief Executive Officer
National Roofing Contractors Association

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