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Consumer
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On Jan. 24, NRCA submitted comments to the Occupational Safety and Health Administration
(OSHA) opposing the agency's Advanced Notice of Proposed Rulemaking (ANPRM) for
fall protection in the construction industry. NRCA's comments follow.
January 24, 2000
OSHA Docket Office
Docket S206C, Room N2625
U.S. Department of Labor
Washington, D.C. 20210
Attention Docket Clerk:
The National Roofing Contractors Association (NRCA) is pleased to submit the following
comments regarding the Occupational Safety and Health Administration's (OSHA's)
Advanced Notice of Proposed Rulemaking (ANPRM) for Fall Protection in the Construction
Industry. The roofing industry has numerous concerns about the far-reaching effects
of potential new, onerous regulations that will neither enhance overall worker safety
nor provide a practical solution to the complex issue of fall protection in the
roofing industry. NRCA stands ready to discuss the issue further with OSHA and all
interested parties.
About NRCA
NRCA was formed in 1886, and its primary mission is to represent and serve the interests
of professional roofing contractors, as well as promote professionalism in the roofing
industry. Professional roofing contractors strive to meet the highest standards
for installing high-quality roof systems, using equipment and practices that protect
workers, building occupants and the public from significant hazards. Professional
roofing contractors recognize that worker health and safety are of paramount concern
to their companies and employees.
NRCA is one of the oldest construction trade associations in the United States,
celebrating its 114th year. It represents more than 4,600 members in 51 countries
throughout the world. Its 3,500 U.S. contractor members represent approximately
65 percent of all roof system installations in the United States. More than 90 percent
of roofing contracting firms are considered small businesses; many are family-run
operations where family members work side by side to make their companies successful.
Roofing contractors are keenly aware of the need for a safe workplace not only because
safety makes good business sense but also because they care about their workers.
Most roofing contractors have worked on roofs and fully understand the hazard. Often
their sons, daughters, nieces or nephews work on roofs, too.
NRCA member concerns
NRCA's members who perform residential (steep-slope) roof system installations strongly
and repeatedly voiced their dissatisfaction and frustration with OSHA's 1994 Subpart
M when it was published and, more recently, reaffirmed their concerns about OSHA's
ANPRM, particularly the suggestion in the ANPRM that OSHA may reinstate, perhaps
without any rulemaking proceedings, the requirement for nearly universal use of
what OSHA calls "conventional" fall protection systems in residential roofing work.
The issue of fall protection is extremely important to our members and one that
NRCA is uniquely qualified to address. NRCA is providing the following comments
in an effort to assist OSHA promulgate a fall-protection rule for roofing work that
is practical, feasible and effective.
Background
1. Development of the 1994 OSHA Rule
On the very important subject of fall protection, NRCA and OSHA have had a long
and constructive relationship. Both have recognized that roofing work can be dangerous
and safety is of the utmost importance. In fact, when OSHA promulgated the first
Subpart M, "Floor and Wall Openings," in 1971, it interpreted the standard as applying
to low-pitched roof perimeters. However, the original standard created confusion
among OSHA compliance officers and roofing contractors regarding the definition
of a floor. In 1975, it was determined that a floor is not a roof and the standard
could not be appropriately applied to roofing work. During the next five years OSHA
and NRCA worked together to develop a roofing-specific standard. In November 1980,
OSHA published a final rule, "Guarding of Low-Pitched-Roof Perimeters During the
Performance of Built-Up Roofing Work." It introduced a warning-line system and safety-monitoring
system as practical and effective fall-protection methods.
In November 1986, OSHA reopened Subpart M in order to update it. Eight years later,
based on a rulemaking record that had largely been assembled during the mid-1980s,
the final rule was published. OSHA's August 1994 Fall-Protection Standard included
a dramatic change in the height at which the standard's requirements were triggered—from
16 feet to 6. In addition, steep-slope roofing fall-protection options were restricted
to what OSHA called "conventional" fall-protection systems—guardrails with
toeboards, safety nets and personal fall-arrest systems with snap hooks at each
end. The standard introduced a specific section for residential construction that
included the option for contractors to develop site-specific fall-protection plans
when other "conventional" methods were shown to be infeasible or create a greater
hazard. Roofing work, however, was not given this option.
OSHA's 1994 rule engendered controversy immediately. NRCA was inundated with phone
calls from residential roofing contractor members expressing their serious concerns
with the feasibility and practicability of the new rule. Specifically, the new 6-foot
rule required fall protection for virtually every roofing job in the United States
and OSHA's fall-protection options could not reasonably be implemented. Roofing
contractors voiced serious concerns that the conventional fall-protection measures
mandated by the rule would introduce new and serious safety hazards to the roofing
workplace while doing little to reduce existing fall hazards. In addition, because
of the highly competitive nature of the roofing contracting market and the heavy
costs of compliance with the new rule, the rule was likely to increase the market
share of "rogue" contractors who tend to disregard both legal and industry quality
and safety standards and thus are often able to significantly underbid professional
roofing contractors. As a result, the new standard not only would have forced at
least some professional contractors out of the residential (steep-slope) roofing
business, it also would likely have significantly increased safety hazards across
the industry because of the increased penetration of rogue contractors using unsafe
and substandard roofing practices. In short, implementation of the new standard
would have done a great deal more harm than good.
As discussed below, although OSHA initially denied a petition submitted by NRCA
to reopen or reconsider the 1994 Standard, the Agency ultimately did recognize that
the rule had serious shortcomings and issued this ANPRM. OSHA initially attempted
to address these problems by immediately issuing a series of no less than six "interpretations"
and "clarifications" of the standard. In the end, however, after roofing industry
concerns about the rule continued to be raised both to the Agency and in Congressional
oversight hearings, OSHA agreed to expeditiously reopen the rule and, to provide
interim relief, agreed further to issue a compliance directive (Instruction STD
3.1), which permitted roofing contractors to use alternative fall-protection measures,
specifically slide guards and safety monitors, on many residential (steep-slope)
roofing jobs.
2. Immediate Efforts to Address Industry Concerns
After denying NRCA's petition, OSHA offered to meet with NRCA to discuss the areas
of concern and possible measures to address them. As a result of subsequent correspondence,
OSHA issued a clarification stating that, among other things, the residential construction
portion of the rule could be applied to residential (steep-slope) roofing work.
As a result, roofing contractors were allowed to use site-specific alternative fall-protection
plans on jobs where a specific demonstration of the infeasibility of "conventional"
fall-protection systems was made.
Later that month, NRCA invited Dale Cavanaugh from OSHA's compliance office to speak
at NRCA's annual convention to address questions regarding the new standard. During
the program, he stated that a safety monitor can have other duties while acting
as safety monitor as long as the monitoring function is not compromised. NRCA had
requested that this and additional answers be documented as formal OSHA policy so
that contractors could rely on them at job sites when a compliance officer questioned
the modification. As a result of that request, Mr. Cavanaugh asked NRCA to submit
the questions NRCA raised to OSHA to obtain official interpretations.
NRCA submitted questions and, as a result, OSHA issued four additional interpretations
that addressed concerns the roofing industry raised with respect to the 1994 Standard.
They are: Interpretation M-1 addressing whether Subpart M would apply to the delivery
of product to a construction site; Interpretation M-2 addressing the Subpart M obligations
placed on a supplier of roofing materials; Interpretation M-4 addressing which Subpart
M provisions apply to work performed on a home; and Interpretation M-6 addressing
whether Subpart M requires the hiring of an individual to be act solely as a safety
monitor.
In April 1995, an NRCA contingent met with a delegation of OSHA representatives,
including Mr. R. Bruce Swanson, Mr. Roy Gurnham, Ms. Barbara Bielaski, Mr. Ted Twardowski,
Mr. Dale Cavanaugh, Mr. Tom Seymore and Mr. Stephen Jones, in a continuing effort
to obtain more reasonable fall-protection solutions, specifically to ease the burden
of the regulation on the residential (steep-slope) roofing industry and help ensure
that the new regulatory regime would in fact provide significant worker safety benefits.
OSHA offered to participate in a joint task force to develop generic fall-protection
plans to address the unique fall hazards presented during residential (steep-slope)
roofing work. It was OSHA's intent to include these generic residential fall-protection
plans as additional appendices to Subpart M, similar to Appendix E.
In July 1995, OSHA issued another clarification explaining that fall-protection
plans do not have to be site-specific. NRCA submitted its final fall-protection
plan to OSHA that included support and comments from various groups, including the
National Association of Homebuilders (NAHB).
3. Issuance of the 1995 Interim Fall-Protection
Guidelines
Despite these efforts to address the deficiencies in the 1994 Standard,
the public outcry over the Standard continued to mount and soon drew the attention
of Congress. The House Small Business Subcommittee on Regulation and Paperwork held
a hearing on June 15, 19951,
and the House of Representatives passed an appropriations rider proposing to prevent
OSHA from enforcing the 1994 Standard 2.
When the issue came to the Senate for consideration, an agreement was reached between
OSHA and interested parties that forestalled the possible legislation. As set forth
in a November 2, 1995 letter to OSHA Administrator Joseph A. Dear from Senators
Harry Reid, Jon Kyl and Don Nickles, the agreement in principal called upon OSHA,
among other things, to:
- Publish an interim compliance directive allowing the use of alternative fall-protection
measures—specifically, the use of slide guards on roofs with slopes of up to
and including 8-in-12.
- Promptly reopen the rulemaking proceedings on the 1994 Standard; and
- Incorporate the roofing appendix that had been developed jointly with NRCA, together
with the provisions of the compliance directive, into the body of the 1994 Standard
3.
Accordingly, on December 8, 1995, OSHA issued Instruction STD 3.1: "Interim
Fall Protection Compliance Guidelines for Residential Construction," signed by OSHA
Administrator Dear. As it applied specifically to the roofing industry, OSHA adopted
the input NRCA provided regarding the use and installation of roofing slide guards
and safety monitors on roofs with slopes of 8-in-12 or less in pitch and 25 feet
or less in eave height. STD 3.1 provided a definition of residential construction
that included structures where residential-type products and installation methods
are used. It also provided exceptions for tile and metal roofs4.
Describing the reasons for issuing this Directive, OSHA, "acknowledge[d]" that the
concerns that had been raised by NRCA about the benefits and impacts of the 1994
Standard "merit further consideration by the Agency." (STD 3.1, § G, emphasis
added.) The Agency went on to state:
"Therefore, OSHA has determined that it is appropriate to initiate further proceedings
regarding Subpart M so that the Agency can re-evaluate what constitutes adequate
fall protection for various construction operations. OSHA is moving expeditiously
to develop an NPRM. In particular, further proceedings will provide an opportunity
to update OSHA's information regarding the fall hazards to which residential
construction workers are exposed. This, in turn, will enable the Agency to evaluate
the alternative methods and procedures suggested by roofing contractors for residential
roofing work." (STD 3.1, § G, emphasis added.)
After the Directive was issued in 1995, NRCA worked hard to assist its members to
comply with the 1994 Standard as modified by the Directive and continued NRCA's
traditional role in developing and disseminating safety information, programs and
materials for the roofing industry. In addition, NRCA has worked closely with OSHA
and the United Union of Roofers, Waterproofers and Allied Workers (the Roofers Union)
toward the common goal of improving worker safety and developed the Roofing Industry
Partnership for Safety and Health (RIPPSH). In fact, RIPPSH is the first partnership
that includes labor, government and management in the construction industry working
jointly to promote and reward safety. NRCA's contractor members support and encourage
the development of these safety-related programs. Roofing workers are vital to the
industry's success and, unfortunately, there already is a serious industry labor
shortage. The industry cannot spare even one worker and takes the well-being of
all workers seriously.
It is with this long history of dedication to the improvement of worker safety on
the roof and working with OSHA that NRCA provides the following comments and information
in response to the issues and questions raised in the July 1999 ANPRM.
General comments about the 1994 fall protection standard
NRCA welcomes the reopening of the fall-protection rulemaking that OSHA agreed to
undertake over four years ago. Based on the substantial input we have received from
our members since the 1994 rule was published, and particularly in response to the
ANPRM, it is clear that more work needs to be done to develop a practicable standard
that adequately protects residential roofing workers from fall hazards without introducing
significant new hazards to roofing work. NRCA is prepared to continue working with
OSHA, the Roofers Union and other interested parties to develop the credible data
needed to identify and support the best solutions.
NRCA sees the ANPRM as the first step in a process that can lead to that outcome.
But to reach that goal, the formal rulemaking proceedings must be broad enough in
scope to allow OSHA and the stakeholders in the process to develop and address the
issues and evidence that must be resolved to make the best choice for worker safety,
while maintaining the climate of cooperation that, we believe, currently exists.
As developed below, NRCA believes that there are three principal ingredients to
a successful rulemaking on the important issue of fall protection: (1) conduct a
detailed evaluation of the effectiveness of the fall-protection measures permitted
in the 1995 Compliance Directive; (2) develop an adequate assessment of the net
benefits of the "conventional" fall-protection measures contained in the 1994 Standard
as applied in residential (steep-slope) roofing work; and (3) maintain the status
quo—keep the 1995 Directive in effect—until the rulemaking has been completed.
1. The Need to Evaluate the Effectiveness of the
1995 Compliance Directive
In reviewing the significant input NRCA has received from its members, particularly
since the publication of the ANPRM, one point stands out more that any other. There
is a broad consensus that the measures required by the 1995 Compliance Directive—especially
the slide guard provision—are not only workable and practical for the great
majority of residential roofing work, but also have yielded noticeable safety benefits.
NRCA intends to investigate this issue among its membership more systematically
in the near future. (In fact, NRCA is in the final contract negotiation stage with
the National Safety Council to conduct a comprehensive prospective roofing falls
study.) However, these assessments by NRCA's members are by themselves an important
indication that the scope of the forthcoming reconsideration proceedings regarding
OSHA's fall-protection standard must include a detailed and comprehensive assessment
of the adequacy of the controls allowed in the 1995 Directive.
As noted above, the Agency made this point when it issued the 1995 Directive. And
the agreement OSHA reached with interested parties, which led to the issuance of
the Directive, also contemplated at least a genuine consideration of the merits
of the fall-protection measures permitted by the Directive. In fact, it would appear
that the agreement reflected a consensus that, in the absence of persuasive new
evidence to the contrary, the provisions of the 1995 Directive should be incorporated
into the fall-protection standard.
In any case, we now have more than four full years of practical experience industry-wide
from the use of these "interim" measures. Given their apparent success, at least
as indicated by the evaluations of some NRCA member contractors, a systematic evaluation
of the interim measures' effectiveness certainly would make good sense and is in
any case necessary to achieve the worker safety criteria of the Occupational Safety
and Health Act.
2. The Need for an Adequate Assessment of the
Net Safety Benefits and Feasibility of the 1994 Standard.
a. Net Safety Benefits
There continues to be serious concern within the roofing industry that requiring
what OSHA calls "conventional" fall-protection measures for essentially all residential
(steep-slope) roofing work will do a great deal more harm than good. Stated broadly,
the concern is that the rule could well have such an untoward effect both by effectively
increasing the safety hazards of roofing work and forcing some roofing contractors—specifically,
professional roofing contractors who are committed to doing quality roofing work
safely—out of the residential roofing market. Devising a well-conceived rule
that provides the fall protection for residential roofing work will require additional
analysis of three major sets of issues.
First, as discussed below, the experience of NRCA members using conventional
fall-protection systems reveals that the use of these systems introduces new hazards
to the roofing workplace and has resulted in injuries to roofing workers. NRCA believes
that this important issue has not been adequately addressed and should be one of
the major issues in a reopened rulemaking.
Second, NRCA's members have expressed strong reservations about the net benefits
of the 1994 rule because it ignores the competitive structure and practical realities
of the residential roofing industry. Based again on experience with the use of conventional
fall-protection systems, contractors have indicated that mandating of the use of
these systems for virtually all residential (steep-slope) roofing work will effect
a substantial competitive realignment within the industry, with professional roofing
contractors losing significant market share to rogue contractors and others who,
thanks to the heavy compliance costs of OSHA's rule, will be better able to underbid
professional contractors who endeavor to comply.
The impacts of such a realignment go well beyond the bankruptcies and layoffs that
would directly result—although NRCA would hope that these effects alone would
be sufficient to cause OSHA to seriously question the merits of the rule. Rogue
contractors are likely to disregard not only the fall-protection standard but all
or most industry and regulatory worker-safety standards, as well as disregard good
roofing practices. As a consequence, increased penetration of rogue contractors
in the market would almost certainly lead to an across-the-board increase in worker
safety hazards and an increased incidence of poorly constructed roof systems. And
a roof system that fails can present a risk of severe injury to building occupants
and heavy damage to building contents.
Third, NRCA believes that additional data and analyses are needed to support
a well-informed judgment of whether the conventional fall-protection systems the
rule requires will achieve the significant safety benefits OSHA has projected. As
discussed in NRCA's comments during the 1994 rulemaking, the data OSHA relied on
at that time—which remain the only possible basis for a rule—show only
that there are too many injuries due to falls from roofs, a proposition that no
one, including NRCA and the roofing industry, seriously disputes. What the data
do not reveal, however, are the underlying reasons for the falls that occur
in roofing work. NRCA members continue to explain in no uncertain terms that the
overwhelming majority of fall incidents are the result of failures to adhere to
existing safety requirements or use simple common sense. There certainly
is no convincing evidence that the use of conventional fall-protection systems would
substantially reduce the current rate of fall incidents in the roofing industry.
b. Feasibility
Quite apart from the indications that the 1994 Standard would have yielded significantly
negative net safety benefits, there remain serious concerns that the Standard would
not be feasible in the residential roofing industry. As indicated above, the Standard
would likely have driven a significant number of professional roofing contractors
out of the residential roofing market, resulting in bankruptcies and employment
dislocation. More broadly, it would have led to a wholesale change in the competitive
structure of the industry, benefiting rogue contractors, who would prosper while
professional contractors attempting to comply are forced out. This kind of economic
restructuring is certainly a sufficient ground by itself to conclude that the 1994
Standard was economically infeasible.
A related but legally distinct deficiency with the 1994 standard was impossibility
of compliance. Roofing work requires largely manual labor, which means of course
that worker adherence to required safety measures is necessary if contractors are
to hope to comply. The input we have received from our members since the 1994 Standard
was published confirms the industry predictions that were made five years ago. Specifically,
there is powerful worker resistance to the use of "conventional" fall-protection
systems in residential roofing work. This observation comes even from NRCA members
who have used conventional systems in recent years and thus have seen the results
first-hand.
There are several reasons for the high degree of resistance seen in many roofing
workers.
First, a great deal of residential roofing work is paid at a "piece" rate,
i.e., by the job, not by the hour. Anything that significantly increases the amount
of time needed to complete a job that is paid at piece rates takes money out of
workers' pockets.
Second, actual experience in the field with personal fall-arrest systems
confirms that use of the equipment involved, particularly body harnesses, is extremely
uncomfortable, particularly in hot weather (when most roofing work is done), and
can also be painful. It is no answer to point out that alternative "conventional"
fall-protection measures are allowed under the 1994 Standard, because guardrails
and safety net systems are simply not a practicable option for most residential
structures, including nearby landscaping, that are involved in this rulemaking.
Third, roofing workers resist personal fall-arrest systems because they are
unnecessary. This response is not, as some seem to believe, born of an unjustified
"bravado." Roofing workers learn from their training and first days on the job that
anything that unnecessarily prolongs the amount of time they spend on a roof or
creates an obstacle to moving about or carrying out their tasks, creates a hazard
that should be avoided if possible. The hazards created by these circumstances include
not only falls but a host of other hazards, including trips and burns. Thus, workers
know that the risk of a fall on all but steeply sloped roofs can be minimized by
using proper footwear and common sense, and their resistance to the additional time
demands and obstacles introduced by personal fall-arrest systems is certainly grounded
in reason, experience and common sense.
Whatever the underlying causes for worker resistance to these requirements of the
1994 Standard, that resistance makes compliance with the Standard impossible in
many instances, because contractors have little or no leverage over employees who
refuse to comply in many markets. The most severe sanction available to the contractor
is terminating the worker, but in far too many instances the worker can immediately
find a job with another contractor who does not enforce compliance with equipment
requirements the worker considers to be unnecessary at best, and dangerous at worst.
As a consequence, disciplining or even firing workers who resist personal fall-arrest
systems only hastens the day when many professional roofing contractors will be
forced out of the residential roofing market.
Lastly, NRCA urges OSHA to revisit the important question of the costs of
the 1994 Standard in connection with the forthcoming reconsideration proceedings.
Industry concerns that OSHA seriously understated the costs of complying with the
Standard were raised in the immediate aftermath of the rule's publication; they
remain a substantial concern today. In addition to the specific cost issues raised
at that time, we believe that OSHA's assessment should include costs such as: (1)
lost earnings to roofing workers paid at piece rates; (2) increased costs to contractors
and, ultimately, homeowners and building owners, arising from increased labor costs
applying to work requiring the use of personal fall-arrest systems; and (3) increased
insurance and other costs of worker injuries resulting from the use of these systems.
It is incumbent upon OSHA to fulfill its requirements under the Regulatory Flexibility
Act to do an accurate analysis of the economic impact of the 1994 Standard on the
roofing industry as the basis for future modifications. Obviously, it will also
be necessary for OSHA to comply with all other requirements under the Small Business
Regulatory Enforcement Fairness Act.
c. Building the Necessary Evidentiary
Basis for a Sound Decision
Under the Occupational Safety and Health Act, it is, of course, OSHA's burden to
justify its standards by "substantial evidence," and it is therefore necessary for
the Agency to develop or compile additional data along the lines indicated above.
NRCA recognizes that this is no small task. We also understand, however, the importance
of completing the work that was started in 1995 with the issuance of the interim
guidelines and recognition by all concerned, OSHA included, that the 1994 Standard
must be reopened for reconsideration. As indicated above, NRCA is committed to continue
to work with OSHA and the Roofers Union, as well as other interested parties, in
developing the data and information necessary to resolve these critical issues.
In that regard, we are currently investigating possible avenues for obtaining the
additional data needed, and once a feasible approach has been identified, we will
contact OSHA and the Roofers Union to discuss cooperative implementation of the
investigation.
3. The Need to Maintain the Regulatory Status
Quo Pending the Completion of the Reconsideration Proceedings.
In the meantime, it is critical that the regulatory status quo be maintained. Our
members were extremely concerned about the indication in the ANPRM that OSHA may
summarily rescind Instruction STD 3-0.1A before reopening the 1994 rulemaking, i.e.,
without following the standard-setting procedures required by the Occupational Safety
and Health Act. In NRCA's view, such an action would not only be manifestly unlawful,
but also be a breach of good faith with the industry great enough to threaten, and
perhaps undermine completely, the potential for a cooperative Government-Labor-Industry
effort to resolve the difficult and important issues raised in the ANPRM and these
comments.
As indicated above, OSHA has expressly acknowledged that the 1994 Fall Protection
Standard needs to be re-evaluated and agreed further that until that re-evaluation
has occurred, roofing contractors should be allowed to implement alternative means
of fall protection—specifically safety monitors and slide guards—for residential
roofing work. Although OSHA committed in 1995 to reopen the rulemaking "expeditiously,"
it still has not done so. In the five year period since OSHA made these agreements,
the Directive has remained in effect, and as a practical matter has supplanted the
standard itself insofar as residential roofing work is concerned.
NRCA believes that the courts would have little difficulty striking down a rescission
of the Directive without following the standard-setting process required by the
Occupational Safety and Health Act. But perhaps more important, as the background
of this proceeding makes clear, the Directive was issued as part of an acknowledgement
by everyone concerned, including OSHA, that the 1994 Standard needs to be re-evaluated.
The expectation going forward, of course, was that OSHA and the affected parties
would proceed to address the underlying deficiencies in the Standard. And that remains
the hope and expectation of the roofing industry today.
What is more, the roofing industry has over the past four years made a sizeable
investment in the implementation of the 1995 Guidelines, in the form of education,
training, compliance assistance and promoting diligent on-site supervision. Attaining
routine compliance with the Guidelines was a task far more difficult than anyone
imagined, primarily due to the need to change the way roofing work has been done
for a great many years. And as already noted, NRCA has received some input from
its members suggesting that implementation of the Guidelines has resulted in tangible
worker safety benefits.
In short, for OSHA now to summarily rescind the 1995 Guidelines and reinstate the
admittedly flawed 1994 Standard, would represent an unjustified and unfair renunciation
of the findings and commitments the Agency made in 1995, and surely would re-ignite
the controversy the Standard originally created. In addition, such an action would
seriously undermine OSHA's credibility in the roofing industry, an industry where
the Agency acknowledges that it is heavily dependent on voluntary compliance if
its worker safety objectives are to be achieved. The immediate impact of such an
arbitrary decision, we fear, would be an increase in fall-related safety hazards
in residential roofing work. For these reasons, NRCA strongly encourages OSHA to
keep Directive STD 3-0.1A in effect until the completion of rulemaking proceedings
to re-evaluate the 1994 Standard.
Questions about roofing work
In response to the questions posed by OSHA in the ANPRM, NRCA offers the following
responses.
"Are monitors an effective means of preventing falls?"
OSHA has long considered the use of safety monitors to be the least effective method
of fall protection. This is based on the premise that 100 percent positive protection
is best. On a roof, it is nearly impossible and virtually impractical to attain
100 percent positive fall protection. Installation of a residential-type (steep-slope)
roof system happens quickly. NRCA members strongly feel that monitors are
an effective means of preventing falls on residential roofs with slopes of 4-in-12
or less.
A safety monitor cannot be compared to the conventional fall-protection options
(safety nets, guardrails or personal fall arrest systems). The conventional methods
stop or arrest a fall. A safety monitor is more closely aligned with a restraint
system, because when employed properly a potential fall victim is prevented from
falling by a verbal command. OSHA must begin to recognize that fall protection cannot
be limited to only conventional methods of protection. Fall protection is situational—the
method must meet the situation and not the other way around. And in roofing work,
the choice of the most appropriate method must always be based on an accurate appreciation
of the underlying causes of the hazard and of the new hazards that may be introduced
by the method selected.
In the case of low-slope roofs, fall exposures can occur when workers are too close
to an edge or opening in the roof, for example. The use of safety monitors is a
viable fall deterrent. Although the use of conventional fall-protection systems
might also work in theory, the experience of NRCA's members reveals that they can
also introduce new hazards in a variety of ways. These include creating a false
sense of security, unnecessarily adding additional tripping hazards to the workplace,
needlessly prolonging the time needed to complete a job and creating greater fall
hazards for those who install conventional fall-protection systems, such as catch
platforms and guardrails. These situations can expose workers to trip hazards leading
them to take shortcuts or prolong their fall exposures and, in turn, compromise
safety.
"Are there slide guard brackets/devices that can be used on [metal] roofs?"
NRCA is unaware of any slide guard bracket/device that does not require roof deck
penetration. This precludes the use of any such system because penetration of a
metal roof compromises the water-shedding ability of the roof system. There are
stages during installation where tying off is possible, but once the metal panels
are in place, using brackets is no longer possible without penetrating the metal
roof.
"Are these [slide guard] specifications appropriate?"
NRCA's members agree that the current specifications are adequate and that installation
of the roof jacks should be as per manufacturers' recommendations.
"Are slide guards effective as replacements for personal fall protection?"
Again, OSHA must consider the situation. In its own safety program guidelines, OSHA
recommends that hazards be identified and the appropriate abatement strategy employed.
Under the unique residential roofing situation, slide guards work. They are easy
to install and use, cost is not a significant factor and they assist workers by
providing a foothold on steeper roofs and a ledge for properly stacking materials.
"Since roofing work is done after the roof is fully sheathed, are there technical
or other reasons why roof anchors could not be used for roofing work?"
There are no known technical reasons why roofing contractors couldn't use another's
roof anchor. However, so many things could happen to that anchor from the time it
was originally installed by a framer and eventually used by a roofing worker that
the anchor's integrity could be compromised.
Roofing contractors, as well as other residential contractors, do not want and should
not be made to be held responsible for others' work. An employer generally should
take responsibility for his workers and their actions. However, relying on another
contractor's worker to properly install anchors is a recipe for a lawsuit—and,
more importantly, potential cause of severe injury to the contractor's employees.
In addition, once a framing contractor, for example, leaves the job with his anchors
in place, he will be held responsible for the integrity of the anchors. Again, this
is not a fair position to for the framing contractor. Further, approximately 80
percent of steep-slope roofing involves repair and replacement work; therefore,
using a left-over anchor that is many years old, possibly rusted or damaged, is
unwise at best and deadly at worst.
General liability and workers' compensation insurance costs are already a major
expense for roofing contractors and not necessarily easy to obtain. Adding liability
coverage for roof anchors installed by another contractor will only widen that gap
of availability and force more contractors "underground" or out of the residential
roofing market altogether. As discussed above, this will only lead to greater safety
hazards for roofing workers, as rogue contractors who are likely to disregard safety
standards across the board fill the vacuum created by the departure of professional
roofing contractors from the market.
"Why is it infeasible to remove a roof anchor?"
OSHA is missing the liability concern when it asks this question. The issue of liability
does not involve the removal of the anchor, but the use of it by workers other than
that of the installing contractor. See previous answer. It is for this reason that
the overwhelming majority of roofing contractors will, in fact, remove any and all
anchors they install.
"Are there other roof anchors that are designed to be readily removed?"
Please see above.
Questions about the definition of residential construction
"Is this an appropriate definition of residential construction for the purposes of
the rule?"
It is unlikely that there will ever be consensus on this definition. Yet the current
definition goes a long way toward reaching agreement from the standpoint that the
focus should be on materials and work practices and not on the end use of the building.
And in that sense, NRCA agrees with the definition. Again, OSHA must allow employers
to consider their situations and apply the appropriate safety method(s) to the hazard(s).
"Does this definition adequately distinguish between projects where conventional
fall protection is feasible and those where, for some operations, it is not?"
See above.
"Is this a workable definition--can employers readily use it to determine whether
their project is considered residential construction?"
NRCA is concerned with some of OSHA's rewordings that occurred in the rewrite of
STD 3.1 to STD 3.01A. As stated above the initial definition went a long way toward
a focus on materials and work practices. The current definition appears to narrow
the intent of STD 3.1 and, therefore, has created confusion. Not all buildings are
made of stick frame, some are constructed with metal studs.
Therefore, NRCA suggests the following definition: An employer is engaged in residential
construction where materials, methods and procedures being used are essentially
the same as those used in building a typical single-family home.
"Does the STD 3—0.1A definition adequately deal with these types [single story
stick framed commercial malls; and single story stick-framed retail structures]
of projects?"
NRCA believes the definition is clear except for the point made above.
"Should OSHA define residential construction in terms of the end use of the structure?"
As stated above, NRCA strongly feels that the emphasis should be placed on the best
way to protect workers, not on the building's use. For example, workers reroofing
a doctor's office that used to be a house must be protected from fall hazards using
measures that are not appropriate based on the type of structure, not its use.
"Should the economic scale of the project be a factor in determining the fall protection
options available to the builder?"
NRCA fails to see any justification in using the economic scale of a project to
determine fall protection.
"Would it be appropriate for OSHA to allow the use of alternative fall protection
procedures on portions of a commercial structure that meet the definition of residential
construction?"
Absolutely. Again OSHA needs to recognize that the construction process, whether
commercial or residential, is not necessarily different just because the end use
is different. The focus must be on the hazard and the best way to address it. The
overriding issue must always be the structure itself.
Questions about fall protection for vendor employees
"Is there a reason why conventional fall protection for vendors is infeasible?"
Conventional fall protection for vendors who deliver materials directly to the roof
is not necessarily infeasible, but OSHA should approach this issue differently.
OSHA must ask what are the hazards presented in the work process and what are the
appropriate hazard abatement methods. Sometimes, technically feasible abatement
methods create other hazards and are not appropriate for hazard reduction. That
is typically the case with vendor-loaded roofs.
Usually, the work of loading a roof is of short duration, fast moving and performed
with equipment, such as any number of mechanical lifts, where safety can be compromised
if the supplier introduces conventional fall-protection devices, such as a personal
fall-arrest system. As stated above, new hazards are created by spending more time
on the job to install or dismantle a personal fall-arrest system, tripping over
safety lines and creating a false sense of security. In addition, it would not be
at all surprising to find worker resistance to conventional fall protection systems
to be as strong among loading workers as it is among roofing workers. OSHA should
certainly study that issue very carefully because, as developed above, such resistance
could well mean that a decision by OSHA to require conventional systems will reduce
existing levels of fall hazard protection for these workers.
"Why would tripping and being in an arrested fall be a greater hazard than the risk
of falling, unprotected, to the ground?"
Again OSHA should approach this issue differently. What is causing the tripping
in the question asked? The material loading process is methodical and fast-paced.
Introducing lifelines creates tripping hazards that otherwise wouldn't exist.
"Are there reasons why these types of systems [retractable lanyards] cannot be used
to protect vendor employees?"
Please see above.
"Is there a reason why vendors delivering supplies to a roof could not install this
type of anchor and use it for fall protection for their employees?"
Please see above.
"Is there a reason why these [strap anchor] systems are infeasible or would pose
a greater hazard?"
Please see above.
Questions about restraint system criteria
"Specifically, what are the maximum loads expected to be imposed on a system designed
to restrain an employee from stepping past an edge?"
NRCA cannot even begin to guess. Again, OSHA should approach this issue differently.
The issue with restraint is preventing the wearer from reaching a fall. Unlike fall
arrest devices, a fall restraint device only needs to stop a person who is doing
nothing more than moving toward an otherwise potential fall hazard. It will not,
and does not, need to be designed to arrest a fall. A more appropriate question
would be, "What is the minimum strength requirement of the restraint system to stop
a worker before reaching a fall hazard?" The answer to that question is best left
to engineers, but NRCA imagines that a typical lifeline and safety belt would suffice.
"What are the appropriate strength requirements for restraint systems anchors and
other components?"
Please see above.
"Is there a need for the requirements in Subpart M for snap hooks and other connecting
hardware also to apply to restraint systems?"
To avoid confusion, NRCA recommends using the same requirements.
"Alternatively, should components of a restraint system meet the same strength and
other criteria as those for personal fall arrest systems?"
No; please see above.
"Is there a significant likelihood that restrain system components would get mixed
up with personal fall arrest system components?"
Not if the requirements were the same as above using safety belts or other similarly
constructed belts were used instead of harnesses.
Other issues
Although OSHA has not asked for comment in the following areas, NRCA would like
to take the opportunity to raise three other issues. First, regarding the 6-foot
height trigger for Subpart M, NRCA is requesting that OSHA expand this rulemaking
process to include a discussion on the 6-foot height trigger issue. NRCA feels that
a 10-foot trigger may be appropriate given OSHA's scaffolding regulation requirement.
Though NRCA recognizes the need for special requirements for industry-specific hazards,
the height trigger issue for falls from scaffolds and roofs is no different except
the origination point. If OSHA believes that 10 feet is appropriate for scaffold-related
work, then why the difference for roofing work? In fact, the difference that currently
exists creates confusion on a roofing job where one side of a building is scaffolded
(for any number of reasons) and the other is not. In this situation, on one side
of the roof fall protection is required at 10 feet but on the other side it is required
at 6 feet.
NRCA would welcome the opportunity to present further discussion on the matter and
urges OSHA to consider the matter.
The second issue involves the exceptions to the OSHA definition of mechanical equipment.
The original definition of mechanical equipment excepted wheelbarrows and mop carts
because of the nature of built-up roofing work. In fact, as stated above, the first
OSHA fall-protection standard that applied to the roofing industry was known as
"Guarding of Low-Pitched-Roof Perimeters During the Performance of Built-Up Roofing
Work". It was more commonly referred to as the "built up roofing standard".
Wheelbarrows and mopcarts were identified as not falling under the mechanical equipment
definition because they are manually moved and because it was necessary for these
pieces of equipment to be close to the edge when performing certain roofing duties,
such as dumping debris or installing roof membranes. In 1975, when the discussion
first began about the need for an industry-specific standard, built up roofing was
the predominant type of roof system installed.
In the 25 years since, many more roof systems have become popular, each having their
own unique installation methods and procedures. The current Subpart M does not account
for these new systems and the unique pieces of equipment required to install them.
Roofing contractors who install an EPDM roof system (i.e., a "rubber" roof system)
can use a seaming device that is "motorized" but only to the extent it is pushed
by hand to seam the rubber membranes together. Roofing contractors have received
OSHA citations for using these pieces of equipment outside of the warning line,
where the current standard prohibits "mechanical equipment".
There are numerous examples of these pieces of mechanical equipment that NRCA has
already submitted to OSHA for consideration. NRCA asks that OSHA reopen the rule
to consider these pieces of mechanical equipment that provide parallel service to
these different roof system applications.
Lastly, NRCA requests the re-opened rulemaking should include a review of how the
warning-line and safety-monitoring systems are properly used when installing roof
systems other than built-up systems. Again, the current Subpart M allows these fall-protection
methods to be used only as they apply to built-up roofing work. However, when installing
an EPDM system, for example, the membrane, which can be 25 feet wide, must be rolled
out. During the process of rolling out the membrane, the warning lines must be temporarily
removed or they will be buried under the EPDM membrane. During this rolling out,
roofing contractors have received citations for not having the warning line erected,
even though a safety monitor was present.
Technically a violation may have occurred, but realistically the standard does not
fit the situation. And as a result, an otherwise compliant roofing contractor is
exposed unfairly to a citation.
Conclusion
To be both practicable and effective, a fall-protection standard for the residential
roofing industry must be based on a firm appreciation of the unique characteristics
of the industry. It must be compatible with the specific competitive environment
in which roofing contractors must operate. It must accommodate the capabilities
and limitations of the firms competing in the market, which are overwhelmingly small
businesses that are typically family-owned, thinly capitalized and only marginally
profitable. It must be designed to work in light of the characteristics of the work
force and the nature of the work itself—particularly its variability from job
to job—its heavy emphasis on manual labor and hand tools, and the many unique
safety hazards posed. These characteristics usually call for education, training
and the use of commonsense work practices as the best and only practical solution
to the constantly changing safety challenges of roofing work.
Although OSHA's 1994 Fall Protection Standard came nowhere close to meeting these
criteria, OSHA took a major step forward in 1995 when it acknowledged the need to
re-evaluate the Standard and, in cooperation with the industry, developed and issued
the 1995 Interim Guidelines. From the limited evidence that is available at the
present time, it appears that the Guidelines have been successful in at least some
important respects, including the achievement of a substantial degree of acceptance
within the industry, and some indication, albeit far from conclusive, that positive
safety benefits have been realized. The job for OSHA and the stakeholders now is
to build on what appears to have been a positive start, working together to fine
tune the Guidelines and formally incorporate them into the Standard.
As discussed above, work remains to be done to accomplish this mission in a way
that serves the objectives of the Occupational Safety and Health Act. The effectiveness
of the 1995 Guidelines must be systematically studied. The 1994 assessments of net
benefits, costs and feasibility of extending "conventional" fall-protection measures
throughout the residential roofing industry need to be updated and improved to incorporate
all the relevant factors. And a much more refined understanding of the factors principally
responsible for the current rate of fall-related injuries and deaths in the industry
must be obtained through more careful study. In addition to these investigations,
consideration must be given to adjusting key elements of the Guidelines, including
the 6-foot height trigger.
While it is OSHA's burden to justify its rules with persuasive evidence, NRCA for
many years has worked together with the Agency and Roofers Union to obtain the necessary
data and remains willing to continue those efforts today. NRCA welcomes OSHA's decision
to reopen the 1994 Standard and hopes to work with the Agency in formulating and
documenting a proposal that meets the criteria set forth above for devising a workable
and effective fall-protection standard for both the residential (steep-slope) and
commercial (low-slope) roofing industry.
Sincerely,
William A. Good, CAE
Executive Vice President
NRCA
- ¹ "OSHA Fall Protection Standard," Hearing before the Subcommittee
on Regulations and Paperwork of the House Committee on Small Business, 104th Congress,
First Session, Washington, D.C., June 15, 1995 (U.S. Government Printing Office,
Serial No. 104-33; Washington: 1995) Back
- ² See Letter Dated November 2, 1995 to The Honorable Joseph A. Dear (Administrator
of OSHA) from Senators Harry Reid, Jon Kyl and Don Nickles (referring to H.R. 2127). Back
- ³ Ibid. Back
- &sup4; OSHA Directives: STD 3.1—Interim Fall Protection Compliance
Guidelines for Residential Construction (December 8, 1995). Back
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