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Note to the reader: These transcripts are from the November 1996 ACCSH meeting. The transcription firm placed the incorrect year on the title page. The correct year (1996) was placed on the certification page at the end of the transcript.


UNITED STATES DEPARTMENT OF LABOR

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
(ACCSH
)

MEETING

Tuesday, November 12, 1994

The Advisory Committee met in the Frances Perkins Building
DOL Academy, Room N3438 A-D

Washington, D.C.

Knut Ringen, Chair, presiding.
PRESENT:

Employee Representatives:

JOHN B. MORAN
WILLIAM C. RHOTEN
KNUT RINGEN
WILLIAM J. SMITH

Employer Representatives:

BERNICE K. JENKINS
ROBERT MASTERSON
OWEN SMITH

State Representative:

MARK O. BROWN

Public Representatives:
ANA MARIA OSORIO
JUDY A. PAUL

Federal Representatives:

DIANE D. PORTER

Contacts:
BRUCE SWANSON
HOLLY NELSON
TOM HALL
THERESA BERRY

AGENDA PAGE
Welcome 4
Knut Ringen, Chair
Directorate of Construction Update 7
NIOSH Director's Report 65
OSHA Regulatory Issues 83
OTI's Activities in Construction Resurrection
of "502 Update"
87
Review of Federal Procurement Requirements 105


P R O C E E D I N G S

(9:05 a.m.)

MR. RINGEN: Good morning and welcome. We have a full schedule with us today. I'd first like to welcome Mark Brown, who's a new member of the Committee and Director of the Department of Labor and Industries in Washington State. We're glad to have you here. At our last meeting in Spokane, we had a very fine report from a member of your department, which we appreciate.

The purpose of -- or the schedule that we're going to follow for this meeting is that this morning we're going to hear a number of OSHA and NIOSH reports, and in the afternoon, we're going to have presentations from a number of agencies, federal agencies, about how they handle federal procurement and what kind of requirements for safety and health they put in it.

Those of you here familiar with the legal charter for this committee will recall that it was set up originally to review federal procurement of construction safety and health, and I don't think it's looked at that issue at least in the last 15 years. So it's time to get back to that.

Tomorrow we would like to, in addition to having Joe Dear's presentation, which is not until 11:15 unfortunately, we would like to have a general discussion about the committee, from the committee, in the morning, about a number of different things that we've learned, both at the meeting in Spokane and at this meeting today.

There's a possibility that -- I guess Joe can't be here until 11:15 tomorrow right?

There's a possibility that we'll start later tomorrow than we have scheduled here because we're not going to need two hours for the discussions that I had in mind in the morning, and Lauren Sugerman, who was supposed to give an extensive work group report at this meeting, will not be here I understand. So that will not be covered tomorrow. She's ill, yes.

We know that the following will not be at the meeting: Steve Cooper is on assignment, Southern Mexico I think, something like that; Steve Cloutier's father died unexpectedly yesterday I believe unfortunately. I will send some sort of a statement of sympathy to him from the committee. Harry Payne is unavailable because he had made long time other plans following the elections, since he couldn't take off much time before the election, I guess. Lauren Sugerman is ill. Bernice Jenkins will be here later today.

So we do have a quorum, barely a quorum this time. So before we do anything else, I'd like to ask you to review the minutes from the last meeting, and to see if they're acceptable to you. They should be here in the blue folder.

[Pause]

MR. RINGEN: We don't have the minutes from the last meeting yet? In that case, we'll delay approving them. Can we have them later? Okay. Then we'll take care of those tomorrow. So we'll wait with that until tomorrow morning and take care of those minutes at that time.

If we could then at this point have those who are in the audience here identify themselves by name and affiliation, starting with you John.

[Audience introductions]

MR. RINGEN: Thank you. Before we get started, are there any comments from members of the committee about the agenda plans for the next two days or anything else?

[No response]

MR. RINGEN: I think it's two years since this committee was reconstituted with more or less the current membership with some additional people, but we've accomplished a great deal in those two years and I appreciate and I think OSHA appreciates all of the work that the committee has done. It will be interesting to see how we will function and what we will be able to do in light of the elections, but we'll probably learn about that at our next meeting, and maybe Joe Dear will have something to say about that tomorrow.

Bruce, do you want to start out? You're on the top of the agenda.

Directorate of Construction Update

MR. SWANSON: Sure do. Some time ago the membership of ACCSH asked that we be a little more specific about what the Director of Construction is doing. Can I have a microphone please? How's that?

And so what I'd like to do is just take a couple of minutes this morning and walk over for the advisory committee projects that are underway in one of our three shops and to the extent that anybody on the panel wishes to follow up and ask me to give more detail, I'd be happy to do that. But I'll attempt to just make it a reading of projects, or ongoing projects.

One, we are -- knock on wood -- nearing the end of our project, joint project with the National Association of Homebuilders, working on a booklet for residential homebuilding sites, 1910-1926, the Consolidation, and working to make the data that was in the 1926 format, the old way, make that available to the industry on CD-ROMs and even in a hard copy tome that weighs about 25 pounds. We are done, and just cleaning up the residue of that.

We are finishing a compliance directive for the new scaffolding standard. I believe the committee has a draft of that in their blue folder this morning. We are going to print, I hope, before this week is out, with that directive.

We are active in monitoring the roofing partnership pilot project out in Region V. In fact, there's a kickoff for that tomorrow in Chicago, a formalized kickoff. We had a press conference, everyone is on board, and we've had two organizational meetings.

We continue to review significant cases. Those cases over $100,000 in proposed penalty that come into the national office get reviewed by DOC, at least the safety violations do.

We're working with stakeholders to provide assistance on compliance issues. We have an asphalt fumes project that we are trying to bring to some completion here in OSHA and DOC has the lead on time, where we're working with Billy and the Operating Engineers, the Laborers and the National Asphalt Association -- they're contractors and manufacturers of paving equipment -- to try and reduce through engineering controls asphalt fumes.

And then we're working, as I said, on several compliance issues that are bothering the industry, such as a question of climbing rebar and whether or not that should be extended.

In the Office of Engineering Services, last time we reported we were involved in 11 in-depth investigations of collapses. Three of those 11 have been completed. We've added two new cases to that, so the caseload remains about the same. We have ten open cases running. Six or those 10, incidentally, included fatalities or involved fatalities.

We will be giving you more in-depth -- Mr. Reidy is here this morning to share with you the construction standards and compliance in-depth report, but you should know we are still working on fall protection; the directive on scaffolds; some news on steel erection; the safety and health program for construction; confined space in construction we're working on.

New since the last report, the construction resource manual has been finalized, as I told you. Congress gave the Department of Labor $2 million to look at the issue of construction standards as applied to the residential homebuilding industry. Joe Dear has meet with Bob Georgine (ph), the head of the building trades; Kent Golton of the National Association of Homebuilders, and established some broad outlines. Actually that was under the tutelage, if I can use that term, of John Dunlop, who is going to be working with those -- with all three of the organizations, and make sure at least the $2 million is well spent and we get a meaningful product for all concerned. We have that money only for the remainder of this fiscal year, so there is some urgency.

Appendix B on scaffolding. When the new scaffold standard came out, you recall that there was -- although there's a requirement for fall protection during erection and dismantling, Appendix B was reserved for the coming year, to develop some guidelines as to -- appropriate guidelines on dismantling and erection.

We are going to be asking here at ACCSH that perhaps ACCSH could work with us and use the work group methodology that worked for safety and health programs in construction, and it worked for confined space in construction, and use ACCSH as a focal point to bring the scaffold industry together, stakeholders in the scaffold industry, and help us with what the industry believes is appropriate and doable as far as that Appendix B goes.

Personnel issues. There really has -- the only change that we have had in DOC since we met out in Spokane at that time, I think I shared with you, that Dale Cavanaugh was leaving us, the gentleman who used to work with us here on ACCSH. He has left. He works with Region X in Seattle. Their gain, our loss. Dale's job is now posted. It's going to be open until the 18th.

We also lost a civil engineering from our engineering section, who went elsewhere in OSHA. That vacancy will be posted here in a day or two or will be open for a month.

I'd also like to announce that two of our offices have switched their management leadership. The Office of Construction Standards, Gerry Reidy has gone over to the Office of Construction Services and Compliance Assistance, and Roy Gurnham has left that office and gone over to Construction Standards.

Quick update on OSHA compliance personnel count. We had dropped to -- by the end of September, we had dropped to 989 for [inspectors] in the field, off slightly from the report we gave you in Spokane, I think down seven. Since that time, I understand that although the official count for October has not been entered yet, the draft count tells me that there have been 13 compliance officers added to that 989 number, and I think you can anticipate that it will continue to slowly climb.

That, barring questions, is essentially my update, but you have asked that we share with you some statistical data as well, and John Franklin is here to talk to you about federal data. John?

MR. RINGEN: Before you start John, maybe there are questions for Bruce.

MR. WILLIAM SMITH: The only thing I have is on the focused inspection, first, is that still growing and continuing to grow? Is there problems? As we discussed a long time ago, we talked about some areas of the focused inspection, where the general contractors meets the needs but then the subcontractors may not, and we talked about the fact that we might have to address when and where you break off a focused inspection and go to a routine. Have you noticed that in the job sites at all or maybe you can --

MR. SWANSON: We haven't -- two comments, Billy. One, that's part of what John is about to tell you about, and he'll give you the data on focused inspections. We had anticipated that -- in fact, we were concerned that we might see focused go down and conventional inspections go up in the fourth quarter of the fiscal year for all the old reasons that certain numbers go up. Conventional inspections count more.

But surprisingly, it didn't happen that way, and maybe after we hear John's presentation, if you've got questions we can go into it.

MR. WILLIAM SMITH: Okay. Thank you.

MR. RINGEN: Any other questions? All right. Can we get a copy of the construction resource manual?

MR. SWANSON: I don't think it's been sent. It hasn't been sent to you. Yes, we can make that happen.

MR. RINGEN: And at the next meeting, do you think it would be advisable to get a detailed discussion of this homebuilders; study? I think that's something that the committee would be interested in having input into.

MR. SWANSON: Okay.

MR. RINGEN: And on the scaffold guidelines, the Appendix B to the scaffold standard, are you asking us to establish a work group for that?

MR. SWANSON: Yes.

MR. RINGEN: Okay. In thinking about who would be best qualified on the committee to handle the scaffolding study, it would seem to me, Owen, that maybe your honeymoon for the committee is over by now, and it's time to take on an assignment if we could talk you into chairing a work group like that. If the rest of you would think about who else would be interested in participating in that work group I'd appreciate it. We'll get back to it after we've had these other presentations. John?

MR. FRANKLIN: It will be a short presentation if I can get this thing to work.

[Pause]

MR. FRANKLIN: If we could go over some inspection data that we have for the last few years, and if you look at this information here that's up on the screen -- you can't see it, can't hear it? It's not on? Can you hear it? No.

[Pause]

MR. FRANKLIN: Here we have construction inspections over the last four fiscal years, and it shows that we're doing fewer than we were before. However, if you look at this information in the light of focused inspections, we're actually not off as much as this chart indicates. If focused inspections were conventional inspections, which account -- normally conventional inspections account for three to four inspections per site, that number for '95 would be about 17,000 and the number for '96 would be about 16,000 inspections. So it's not really off quite as far as it -- we haven't done that many fewer site visits, but the numbers make it look like we're not as active as we really are.

What we've done for inspections, our inspection data in general is we've taken the number of projects that we've visited and divided them by 3-1/2 for conventional inspections because that's about the average number of inspections we get off of a conventional site, to do some of our other data, to compare site inspections with the conventional system as opposed to the focused system, so we will be comparing apples and apples instead of apples and oranges.

This is that same chart, activity level by region. And you see that most of the regions are quite similar, in that when you get to '95 and '96, they're about half of what most of the larger regions did prior to that. And focused inspections figure strongly into that, although there are other factors involved also.

Now this is what I was just talking about, construction projects inspected. I can't get it all on the screen. If you look at '95 and '96 there, you'll see that if you really look at the number of projects that we went to inspect, the numbers aren't down as significantly as they look on that first chart that I showed you, and this is where the 3-1/2 factor comes in again. You divide the number of conventional inspections by 3-1/2, which is the average number of contractors found on a construction site when we do a conventional inspection.

Normally, with a focused inspection, of course, we're just giving one inspection. So we're counting one inspection for a focused inspection site, and in this chart, the same thing. One inspection for a site, because we're dividing by 3-1/2. So you can see we are down some but not as dramatically as some people think.

MR. WILLIAM SMITH: Can I ask a question on that one?

MR. FRANKLIN: Sure.

MR. WILLIAM SMITH: On that chart that you have. My understanding would be, because -- maybe it's just in the way it's titled -- it says "Construction Projects Inspected."

MR. FRANKLIN: Right.

MR. WILLIAM SMITH: My understanding would be that with a focused inspection in place, we would get to more projects than we did in the past, because we were going to be there a less amount of time, so that one inspector instead of spending a week at one site, can now maybe hit two sites in a week, and that number reflects just the opposite.

It seems like from '94, going from 6,000 construction projects, we should have actually went higher with focused and not lower, because we're getting to more projects supposedly.

MR. FRANKLIN: Yes. Theoretically that's true.

MR. WILLIAM SMITH: What's happened?

MR. FRANKLIN: There are a number of things that have happened, and I think maybe -- I don't know if I should speak to that or if Bruce wants to speak to it or --

MR. SWANSON: Yes. I'll take a shot at that, Bill. I don't know either. We honestly don't know. When we got into focused inspections, the concept was, as you've just stated, that we can get on and off the project that doesn't call for a full walk-around. It counts as one project, one contractor. We're gone, we've saved time. Our numbers on inspections have gone down, but the payback should be in theory that more projects will be visited over the course of a year.

That hasn't turned out to be that way. I've heard Joe Dear ask his regional administrators, who can't give him a very good answer either. One possible answer that doesn't stand up is that the time saved -- we do not have construction compliance officers. We have compliance officers who do construction, who do other things as well.

One explanation would be well, if you're not on construction sites you're in general industry. That doesn't show up either, although there is a slight rise in significant cases, and there is a slight rise in egregious cases, both of which take more man hours to produce than the construction inspections of yesteryear. The partial answer being that the time saved in the construction industry is utilized elsewhere for the benefit of OSHA and the general industry.

That's only part of it though, Bill. Part of it is that we had shutdowns this past fiscal year, which explains the last year, the third year on that chart, but it doesn't do a very good job of explaining the second year, which seemed to have essentially the same experience.

We know that we are losing man hours, inspection man hours as we convert to the new area office. There's a period that each area office goes through, where it is not producing inspections as it trains itself to be a reinvented office. That also is a loss, and that applies to both of those years up there.

There is no single complete answer. It seems to be a number of things. It might also be something as simple, simplistic and difficult to deal with as our own compliance officers misunderstanding Joe Dear's message when he said "numbers no longer count" and wow. And that has had the wrong effect. We know what some of the causative factors seem to be; we don't have an entire answer for you, Bill.

MR. WILLIAM SMITH: Not as a committee member, but just from the beginning, I mean the Operating Engineers and I think most of the building trades was fully in support of the focused inspection style, because we knew resources were limited and even being reduced. So therefore you got to do more with the dollar you get. But it seems like we're really going backwards as far as the mission of trying to get to the workplaces.

If that continues, I mean focused inspection and that route wasn't the way to go, because if we can get to 6,500 job sites in '94 and only get to 4,500 construction projects in '96, and it continues that way, we've definitely gone backwards as far as visiting the site.

MR. FRANKLIN: Mark?

MR. BROWN: Could I interject a point that is relatively new to others?

MR. RINGEN: You have to use the microphone.

MR. BROWN: I'm sorry. Is this actually just for recording or is this for --

MR. RHOTEN: It's just for recording.

MR. BROWN: I wanted to ask a question, if I could. It seems to me that's a well-made point. However, the goal was not just numbers, but it was quality, and as you measure quality, it's not just a question of work sites visited, although I'm as concerned as you are seeing these numbers today for the first time.

But my question would be what other data do we have to know, in terms of efficacy, in terms of fatalities, of those sites that were visited, in injury and illness rates? Again, I mean the purpose of this wasn't just about numbers. It was to drive safer workplaces. And so if it's a better quality outcome in terms of injury and illness rates and fatalities, I think that's something we need to know, to compare these numbers, which simply are sites visited.

I mean I'm just asking the question, where is the data? This is just one point of data, not nearly enough.

MR. WILLIAM SMITH: Yes, I mean we agree. The whole thing's got to mesh where by doing focused inspections, we should see a reduction in injury-fatality data over the years if that works. If the system is supposed to glue together, we should see -- forget about the numbers, I agree. But on the surface, it should say that focused inspections would allow us to get to more projects with less time and money, because that's what the purpose was, to take the resources that we had and kind of expand them.

One way you do that is you get in a site, find out if they've got the listed objectives there at that site, and if they do, just get off of it. Don't worry about the, you know, the less harmful citations you may give. Just go on to the next one. But I don't know that that's occurring, and the other thing is I need to ask you John, and maybe you'll have it later on, is that we know for a fact on this committee and everybody in the audience knows that safety and health programs in a workplace is pretty much a new idea for a lot -- it's an old idea, but in the workplace, it's not really happening.

Part of being a focused inspection is that you need some kind of program or plan, let's say, at your workplace, and I'd like to know of all the focused inspections that we started out with, how many has actually gone the other way to a full inspection, or has every one of the focused inspections that were initiated just fully been a focused inspection, because the workplace today, as we know it on a construction job, not every one of them guys have a plan in place at all or competent people.

So I mean there should been a lot of them just started out as focused, and in the very beginning anyway, when focused first originated, they should have been changed to the old style until we bring contractors up to par. Because part of the focused inspection program is "Look guys, we want you to come up to this level. We don't want to go down to your level."

It seemed to me that in the very beginning stages of focused inspection, they should have went in saying "We can do it this way or this way, and if we do it focused inspection, you need these things in line. If you don't have them, we've got to go back to the old way.

MR. RINGEN: Let me -- rather than having an extensive discussion now, we could finish up John's presentation and then have more of a discussion. Just one point I'll make just for you to think about. What would these numbers look like in the absence of the focused inspection program. They could be much lower.

MR. WILLIAM SMITH: I don't know. I mean that's what I'm asking. If '94 was 6,500, why would '96 be that? I mean it would be lower, but doing it the old way, it probably wouldn't be any lower than what we have now.

MR. RINGEN: Well, that's something that Mark, maybe you can comment on after John's finished his presentation, about how you would measure quality, how you do it in Washington.

MR. BROWN: Well, I have just one other question too. Again, if we're asking for data, were these in addition to being focused inspections, were these targeted inspections? I mean what work sites were you going to and on what basis? I mean were 40 percent of these, I think on average, the result of complaints or was there a more targeted focus to where you went?

MR. FRANKLIN: Most of the focused inspections, I think, 80 percent or so of them come from program inspections. Maybe even more, 90 percent. Probably more than 80 percent even come from program inspections. That's where they -- because those are the larger projects and those are the ones that usually qualify.

Just real quick, we do in general try to get compliance officers to go onto a site with the idea that every site that you go onto is going to be a focused inspection. We're working to get the system, some changes made into our management information system, where we can determine whether a site began as a focused inspection. But right now, we don't have that capability.

MR. WILLIAM SMITH: That's helpful for us, I think, because we need to determine if they're changing their attitude and coming in line with the focused inspection arena, or whether they're just staying in the old lane and it's still being a focused inspection. I mean that's crazy if it is.

MR. BURKHAMMER: One of the things I think you've got to understand is from '94 to '96, construction starts are down dramatically. You look at the heavy industrial sector, environmental permitting, funding issues, owners backing out of designed projects are causing a lot of construction starts not to happen and be forced into '97 and maybe even into '98. So some of those number decreases may be that there's not a lot of projects any more to go look at.

MR. FRANKLIN: This is the same -- these are those numbers that were just looking at, broken out by regions, so you can see which regions are doing the most inspections, and how it compares to what they did in the prior couple of years. Some of them are actually doing more inspections. Most of them --

MR. RINGEN: More projects.

MR. FRANKLIN: I mean more projects, yes. Visiting more projects. I mean this is considering this year we had -- you know, the first month of the year, actually with the bad weather and everything, a couple of months we didn't get much done, on vacation or closed down or whatever.

This is a breakdown of the last couple of years since we started focused inspections, and the percentages -- not percentages, the numbers that we did in each quarter, and you can see -- I don't know what all the reasons are, but I'll pretend to be able to explain it, but in the beginning in the first quarter of '95, when we first started focused inspections, of course people weren't really up to speed on them yet. You see the first quarter of '96, we did 280 compared to 123 in the first quarter of '95. In '96 we weren't working part of the time because Newt, you know, has us doing something else.

But if you look, it's like a pattern. First, second, third quarter. We do more inspections each of those three quarters, and then we drop off in the fourth quarter. I'm not sure what that reason is, but if that fourth quarter -- there's no reason for not doing a lot of construction inspections in the fourth quarter, in my opinion, if we were up to speed with the third quarter, it wouldn't have dropped off so much because these are projects inspected, not just inspections. So that's kind of -- I think we need to look into that a little bit.

MR. WILLIAM SMITH: Did you say quarter or fiscal year?

MR. FRANKLIN: Yes. Fiscal year. This is that chart we just looked at, throwing the same information at you different ways. In '95 -- what this shows, it gives you a better, I think, perspective on the percentage of focused versus conventional inspections in the different quarters. In '95, 30 percent of our inspections are focused; in '96, 40 percent are focused.

This, more focused inspection information. This is the last fiscal year, by region. Like I said, 40 percent of our sites now are focused inspections. And then --

MR. RINGEN: But still -- put that back up again. The amount of variations between the different regions, for instance. In Region VI, it's about 50-50, right? And in Region V, it's 3 to 1.

MR. FRANKLIN: It's interesting, I think, depending on the -- maybe what's happening in a region. Some places were having trouble getting in to do a focused inspection, because they don't want a focused inspection because they don't want liability. So that's factoring in. Then there are other issues, too, I think, that probably need to be addressed.

MR. BURKHAMMER: Put that one back up there. The way I read this, you've conducted 1,785 focused inspections in 1995, right?

MR. FRANKLIN: The fiscal year is '96.

MR. BURKHAMMER: And you've got 989 compliance officers. That's two focused inspections per compliance officer per year.

MR. FRANKLIN: But a lot of those compliance officers aren't doing construction. Most officers have particular people that do most of their construction.

MR. BURKHAMMER: Wait a minute now. Bruce just said that they didn't have construction compliance officers. They've officers that do everything.

MR. FRANKLIN: Well, their job duty is to do everything, but I think in practice, there are certain people that do a lot more construction inspections than other people.

MR. BURKHAMMER: All right, cut it in half. That's four focused inspections per compliance officer per year. That's pathetic. My guys inspect four jobs a week.

MR. WILLIAM SMITH: Is this -- based on that chart, they've done -- just to understand, they've went out and they've done 1,785 focused, but they've also done conventional or traditional construction inspections that total 2,700, right?

MR. FRANKLIN: Yes. Those are projects inspected.

MR. BURKHAMMER: Projects inspected.

MR. WILLIAM SMITH: So you're going to add the two together to get the total projects inspected for the 900 and some compliance officers?

MR. BURKHAMMER: Well, they're up to 4,400 roughly. 4,500.

MR. WILLIAM SMITH: Right.

MR. BURKHAMMER: And I can divide by 989.

MR. WILLIAM SMITH: So what they're saying is that they've only done --

MR. BURKHAMMER: So that's four inspections a year.

MR. WILLIAM SMITH: Focused per person.

MR. FRANKLIN: Well, I think the number of compliance officers that do construction inspections on a regular basis are like fewer than half of the compliance officers.

MR. WILLIAM SMITH: If I'm not mistaken, because I looked at Region VIII from one of your other charts, and I thought in Region VIII your focused had went above your conventionals, which was my beginning statement about it seems like we should get some more projects --

MR. BURKHAMMER: That's the one, John, where you had --

MR. WILLIAM SMITH: You had all the colors.

MR. FRANKLIN: Okay.

MR. WILLIAM SMITH: It was a lot of bar graphs, John. But I thought that in Region VIII, you had shown where the focused had -- right there. Look at Region VIII.

MR. FRANKLIN: Those are projects.

MR. WILLIAM SMITH: You have both conventional and focused, okay.

MR. FRANKLIN: Yes. Those are everything together.

MR. WILLIAM SMITH: Got you.

MR. FRANKLIN: And that's --

MR. WILLIAM SMITH: You're getting to more projects is what happens, okay.

MR. FRANKLIN: I think this is maybe more of a measure of what's going on by year in an office than the other.

MR. WILLIAM SMITH: I thought the color breakdown was the difference between conventional and focused, but it's not. It's total.

MR. FRANKLIN: That's for a year.

MR. WILLIAM SMITH: Okay.

MR. FRANKLIN: And then Bruce mentioned this earlier. Our significant case inspections, although inspections were down significant cases are up more than three times over '94, the '93 to '94 level when they did more inspections. So I'm not sure what that says, but we are getting more cases. I'd better get around to the other side.

[Pause]

MR. FRANKLIN: Then last time, from what I understand, there was some interest in BLS data and what they have to provide, maybe on an injury and illness side. I think we gave out some information on fatality data that we collect, and of course we don't collect injury and illness information or very much accident information, and BLS is where the injury and illness data resides. This news release that I'm handing out gets into some of the specific data that's available from BLS on construction.

There's a lot more data out there that's unpublished information from BLS, and my suggestion would be that maybe we can get Bill Weber and Guy Toscano (ph) from BLS to make a presentation on what kind of information might be available in unpublished form from BLS that would interest people on this committee.

I'm giving this out for general information. There's some interesting tables in there. I think Table 3 was one of them. Then there's -- I want to distribute a fatality, analysis of OSHA fatalities. It's a fatality report that was done by Construction Resources Analysis at the University of Tennessee, who's our contractor that helps us do our program targeting.

They've gone in for the last five years and they've combined '91 and '92, '93 and '94 OSHA fatality data and analyzed that, and then they took '95 -- these are calendar years -- and they went in and analyzed '95 data. Then they compared the five years. They took an average of the first four years, the things that happened to people fatality-wise, and compared it to '95 and it's fairly consistent between the years.

But I think it's a good analysis of OSHA fatality data. They went in and looked at all the narratives we have in our fatality database, and tried to separate out what causes people to die in different situations. The problem with our fatality data is that -- one of the problems is that in our narrative descriptions of what happened to people, a lot of times the compliance officers don't include information that we really need to determine what happened.

So what we're doing is we've worked to produce or develop a new fatality data collection system which we're testing in several area offices now, and that data is going to be coded in. We're going to require the compliance officer or whoever is putting data into our management information system to put in data by codes or by type of occurrence what happened to the person that was killed.

For example, we have -- we're going to code in 54 different construction operations, into the report or into the screen -- onto the screen, and the compliance officer will scroll through that and make a choice and put that into the system. We're going to be able to collect about 14 different end use types of construction to look at and see what kind of project the person was working on when he was killed. We're going to have the number of stories the building was, the dollar value of the projects, the primary SIC of the victim's employer, his union status, employment establishment size and the types of construction project, whether it's new, alteration, maintenance and repair, demolition, other.

This will give us the ability to go in and really key into what type of project the person was working on, what his occupation was and how far he fell and things like that that we haven't been able to determine up to this point in time. I think it will be a real enhancement to our fatality data system.

MR. RINGEN: Would you repeat those data briefly?

MR. FRANKLIN: Okay, it's in here. In that thing that I just handed out, the analysis of -- no, I didn't hand that out. I'm sorry. We're going to code 54 different operations and 14 types of construction projects, like highways, bridges, towers, pipelines, excavation, landfill, single family housing, multi-family, commercial, manufacturing, other building, things like that that we don't have readily available now. So we'll be able to have these breakouts.

I didn't hand this -- actually, I didn't hand this out because we're still testing it. We're probably going to modify it some, so I want to hold onto it if I could. That's about my -- what I have to offer. If there are any questions.

MR. RINGEN: Thank you. Bill?

MR. RHOTEN: Yes. I have a question and a comment. I guess my question is on the number of inspections that were performed last year, have you got any statistics on the size of the employer? Have you got those? I didn't see those in here.

In other words, what percentage of those inspections, for instance, were under 20-man operations I guess is what I'm asking?

MR. FRANKLIN: You're talking about --

MR. RHOTEN: Size of the shop.

MR. FRANKLIN: Like the total size of the corporation or --

MR. RHOTEN: No. The size of the contractor. I guess what I'm getting at --

MR. FRANKLIN: You mean the contractor's total number of employees?

MR. RHOTEN: Right.

MR. FRANKLIN: We have the number of employees that were on the site for that employer. We have the total number of employees that were controlled by that employer, which are -- he had working for him and how many are controlled by this whole entire corporate entity or whatever.

MR. RHOTEN: I guess my question would be on particular contracts, what percentage of total inspections were done to contractors that hired less than 20 employees, for instance? Could you get those statistics?

MR. FRANKLIN: Yes, we can and it's -- I think they don't look at less than 10 employees, which would be like the total aggregate number of employees employed by the entity, you know, across the country or whatever. Your whole, your total employment, for 10 or fewer. Maybe if it was 11 or fewer employees, it was like 33 percent.

And what we're finding -- we inspect mainly large projects. What we're finding is that there are a lot of small employers working on those large projects. But you want to know less than 20 --

MR. RHOTEN: Well, I would like those statistics, because at the last meeting, it was pointed out very dramatically that the smaller contractors had a higher proportion of traumatic facilities (sic) on the job site. In the discussion about where OSHA's going to focus their attention, to me it should be focused on that area of those smaller contractors, if in fact the figures are that they have a disproportionate amount of traumatic facilities -- fatalities. But that's all.

MR. FRANKLIN: Okay. Ana Maria.

MS. OSORIO: Thank you for that overview. That was really good for a start. I think though that in any kind of program that's a major shift like this, you probably want to have some kind of formal evaluation plan set in, and preferably that should be done in the beginning. Maybe it was and you can tell me about it if it was.

But I do think that to, as some of the members of the committee have already alluded to, to just put in prevalence or just put absolute counts is a good first start, but you have more detail. I delved into the IMS system to do some lead work several years ago, and I think you have other parameters there that can flesh out what we're seeing.

I also think it's important to put what OSHA's doing juxtaposed with what some of the health and safety outcomes are from the BLS. If you could, maybe get some housing starts or construction starts, and try to get some even crude kind of rates at different regions, because I do think all regions aren't equal. You know there's a different number of employees, etcetera.

So I think that there could be a more detailed way of presenting what you have. I think you're seeing a lot of data, and then you may have to come to the point where you have to, as a directorate, that you have the oversight and you are supposed to be looking at trends and what the whole, you know, consolidated regions are doing. You may just have to bite the bullet and do a five percent sample of some of these inspections and actually get at some of the more detailed quality issues.

But I think to just keep going on because that's the way you have to do it, I don't think that's sufficient. I think you need to put into place some sort of evaluation. If you've already done that, I'd like to hear about it.

MR. FRANKLIN: Well, when the focused inspection system was put in place, it was -- we didn't really think about it before we got into it, so far as how we're going to evaluate it. So we didn't have a measurement system or evaluation system in place. We need to do that. We need to get -- we need to be able to know when we go into -- we need to have the data that tells us whether we start at a focused inspection and it turned into a conventional inspection or not, for instance. We need to have that.

We have data on the number of projects, active projects by region, even my area office. But the thing -- and that's good information to have and I can provide that to you. But the thing is is we only inspect about three percent of the projects that are out there, so it's not that we have a lack of projects to inspect. I mean there are projects to inspect in each area office.

So our resources are so limited compared to the number of projects that are going on and the number of contractors that are out there that we're not going to get to please everybody.

MR. RINGEN: It may be useful for us to put together a work group to design or help design an evaluation plan for the construction directorate. Certainly something that a number of us would be interested in, something that NIOSH probably would be interested in.

We have one large study going on right now of all of the OSHA IMS data, to be completed some time towards the end of this year. That will be give a lot of additional information.

MR. FRANKLIN: But there is one other thing I wanted to throw up here if I could, and that's the proposal that the recordkeeping people have out there for site logs. That site log would enable -- we work for ACCSH or the Office of Statistics works with ACCSH to develop the principles behind collecting the site log data, and that will help us for the first time experience of the contractors and help us be able to decide who should be on a priority list for inspections.

MR. HALL: Stewart, weren't you on that statistics work group? Yes. You could reactivate that from whoever's left on it. I know Stewart was on it and maybe somebody else too. Bill, you weren't on it, were you?

MR. RHOTEN: No, no I wasn't.

MR. HALL: You weren't on that old statistics work group. Stewart was on it.

MR. BURKHAMMER: It was Joe Adam, Steve Cloutier and myself.

MR. HALL: Well, there's two people that are current.

MR. BURKHAMMER: And the fellow from New Jersey that's not here anymore.

MR. HALL: Well, you've got a nucleus of three people.

MR. RINGEN: Yes. Well, we'll get back to that in a minute and also let me get back to Mark Brown and hear about some perspectives on this from Washington State, where you probably have collected more data and analyzed more data longer than any other OSHA program. But maybe first, before we get to that, we would ask Paula White to give her overview of the state programs and the statistics that you have.

MR. BURKHAMMER: Could I ask John one more question before you move on?

MR. RINGEN: Sure.

MR. BURKHAMMER: Where does the revised recordkeeping standard stand?

MR. FRANKLIN: Well, we're looking -- the Office of Statistics is looking for the proposal to be completed by May, I think, and the new system will be in place January 1, 1998.

MR. BURKHAMMER: So we're still on track with our regular schedule.

MR. FRANKLIN: Yes, and data from that will be available in '99, but we probably won't be able to use that data until 2000.

MR. BURKHAMMER: 2000, yes.

MR. FRANKLIN: So we're still down the road from being able to use that information.

MR. BURKHAMMER: Then we're still on for our 1/98?

MR. FRANKLIN: 1/98 is still there.

MR. BURKHAMMER: Thank you.

MR. RINGEN: Paula? You have speak loudly.

MS. WHITE: I'm not sure you want me to speak loudly. My name is Paula White. I'm Rich's colleague. I'm the Director of Federal-State Operations here in OSHA. My office has primary responsibility for the development of policy for the operation of OSHA's state plan programs, for the OSHA consultation program, the BPP program and the OSHA Training Institute. Those are all under my direct areas of responsibility.

I feel very fortunate that Mark Brown, who is the Director of the Washington State OSHA Program, is here with us today. Harry Payne is also a member of your committee and I'm sorry that Harry's not here, because they can provide really up to the minute information on what state plans are doing and what they're thinking and how they're operating.

I want to just give you some general information about construction activities in state plan states. This is by nature very highly summarized information, because states are authorized to operate their own program. States are required to have programs that are as effective as the federal program. The effectiveness of state plans are measured on a total basis in terms of what that state plan is doing as compared to what the federal OSHA program is doing.

So while I'm going to give you the summary data, it's unlikely that I could answer any specific questions about any particular state, albeit if you have specific questions, we will do our best to try to get those answers.

The handouts I have given you, the little package that has the blue cover, is simply background information for each of you in case you're not familiar with state plans. There's a policy summary of what state plans do; it tells you where they are, who the designees are, what regions they're in, what state plans have BPP programs and how our state consultation programs are funded. So I think that's just some general background information.

Then some of the slides, I thought it would be easier for you to look at the slides, since they don't necessarily show up well on the screen and some of the slides I have given you we don't have individual slides to look at.

Just so that you don't -- are not shocked when you see this number, I want to point out before I start that numbers of inspections in OSHA always depend on what day you go to OMBS (ph) people and have your charts run. So the total -- can you sharpen that any? The total number of federal inspections is, I think, about 17 off from the number that Bruce just showed you. This is not because we're trying to be tricky; we just got our numbers run on a different day.

This gives you -- first I want to start to give you a dimension of the issue. The federal program is responsible for enforcement in 29 states. State programs in 21 states and 2 jurisdictions, Puerto Rico and the Virgin Islands. In addition, there are two state plans, in New York and Connecticut, that cover public employees only. They only conduct inspections in state and local government entities.

So all of the state plan numbers we are looking at then are 21 states, two public employee only states, and they are really relatively -- there may or may not be, depending on what the issue is, relatively few inspections in those two entities and, as I said, Puerto Rico and the Virgin Islands.

So this is just by way of comparison, for FY 1996, shows you the total number of state and federal total inspections, the number of construction inspections, the number of focused inspections. What is significant when you look at the overall numbers is that states did roughly twice as many construction inspections in fewer than half of the states. However, the major difference is that states did many fewer focused inspections than the federal government.

As a percent of total inspections, states are doing roughly 41 percent of their total inspections in construction. I think the federal number last year is close to 46 percent. Only 10 states, and we'll look in this in detail in a later slide, are actually doing focused inspections. What this reflects is OSHA's policy to encourage but not require states to follow our policy development in terms of the focused construction effort.

So at this juncture, only ten states have actually implemented a focused inspection program. Could I have the next slide?

This essentially displays the same data in a bar chart. Again, just for basis of comparison, you can see by this chart and clearly you can see more easily in your own handout, total inspections by state and what portion of those are construction inspections. That primarily is just a visual. It doesn't particularly give you definitive data.

In your handout, and you don't have a slide for the next chart, the handout then gives you the numbers that back this graph up. That is, it tells you by state total inspections and the number of construction inspections. If you essentially throw out the outliers and the outliers are the -- if you take out the two public employee only plans, and that would be Connecticut and New York State, and at either end of the spectrum, if you take out Kentucky, which has the lowest number of construction inspections, which is 18.8 percent, the highest number is South Carolina at 58.5 percent, essentially everybody else is in the range of 40 to 50 percent. All other states are in the range of 40 to 50 percent of their inspections being in construction.

Just before I leave this, does that make sense to everyone?

MR. RINGEN: Just a question about this. You certify these plans and you evaluate them?

MS. WHITE: Yes.

MR. RINGEN: How can you justify that Kentucky, for instance, has so few inspections, for instance, in comparison to Oregon. I think that they're roughly similar in size. How do you justify that one state is so way low and still continue to be certified?

MS. WHITE: The evaluation of a state plan is done, as I said, on an overall basis of comparison. We use something called state plan spans, which are indicators of effectiveness that have been agreed upon between the federal program and the state program. So the first level of comparison -- and evaluations, I might add, are done every two years -- the first basis of comparison is to look at the overall state -- what the state is doing by indicator, and compare it to the overall federal program.

So in the beginning, the basis of the comparison is not another state. The basis is comparison is the federal program. If data shows that there is something we call an outlier; that is, something looks different and in Kentucky's case, I would have to go back and look at their last evaluation to know if that actually even shows up as a difference, then the regional monitoring staff and the state would take all of the data about that particular issue that's showing up and look at it and identify whether or not there is a particular problem.

Obviously a part of the issue has to do with the overall industry mix in that state, in addition to a number of other factors. So I don't know off the top of my head whether this has been identified as an issue for Kentucky. I don't recall that it has. I can certainly look at that. But certainly that is one of the advantages of a state plan, is that they have more resources per state generally than OSHA does.

So as a consequence, their numbers may look different than the federal numbers just because they may overall be penetrating at a much higher level than federal OSHA could penetrate in a similar situation. So that could be a factor here.

MR. BROWN: And if I could interject one other point, speaking to Oregon. Just again, it's so important to I think have a lot more datapoints than just these numbers. In the case of Oregon, they picked up over 50 compliance officers as part of the worker comp reform back in around '92 or '93. So they reamped up very quickly in a relatively short period of time. So I'm not sure that that's a good kind of contrast with Kentucky.

MS. WHITE: That's right. To just add a little more information on Mark's point, a number of states spend much more -- the state programs are funded 50/50 by the federal government, but many states put in significantly higher financial contributions. So they have a number of compliance officers that are funded with 100 percent federal money.

As a result, if I were to give you any number of datapoints or the numbers of inspections and where they are, you would see some states with numbers that are way out of comparison with what you would think a state of a similar size would be, and that does reflect often, as in the case of the state of Washington and Oregon and North Carolina, to name but a few, that their numbers look way out of proportion and it is because they have significantly more resources devoted to OSHA activities. Okay.

MR. WILLIAM SMITH: These are all state plan states?

MS. WHITE: Yes, yes, except that New York and Connecticut, be mindful, is only enforcement in the public sector. Federal OSHA, that's all private sector inspections in those two states.

MR. WILLIAM SMITH: So only Connecticut being 14 construction inspections, who did that?

MS. WHITE: That's the state of Connecticut in public sector places of employment.

MR. WILLIAM SMITH: So they did what they considered construction inspection of public sector employees?

MS. WHITE: Yes, yes. That's only public sector in Connecticut and New York. To some extent, we should almost pull those two out and they should be appended at the bottom, because Connecticut and New York are clearly not comparable as public sector only.

MR. WILLIAM SMITH: And New York did 514 because of the resources they have in New York.

MS. WHITE: Right, right. But it's still public sector only. Federal OSHA does private sector inspections.

MR. WILLIAM SMITH: Did you say there were 21 states?

MS. WHITE: There are 21 states, two territories and two public employee only, for a total of 25.

MR. WILLIAM SMITH: Got you, because yes, there's 25. Thank you.

MS. WHITE: Yes, yes. Okay? Next slide. This is just another view, to some extent, another cut at the same data and we'll go more into the focused inspections. I can't do those when they're right side up, showing you again a different cut at total inspections by state and federal entities, total construction and the number of focused inspections.

We're just getting all this new technology, so the decimal before the 554 should not be a decimal. It should be -- that actually is 554, but we couldn't get the machine to -- I understand that's what we wanted, so forgive us on that. Behind that number, the next chart in your handout I don't have a slide for. This shows you those states which have adopted the focused inspection policy, and the number of focused inspections they did by fiscal year in FY 1995 and FY 1996.

Hawaii, as you see, has officially adopted the policy but has not yet implemented the policy. One state stands out by virtue of having probably about 40 percent of the state total in one state, in the state of Washington. The states have, I will tell you quite frankly, I think been somewhat reluctant to follow OSHA's lead in adopting this policy, that while they agree that intuitively the policy sounds right and makes sense, they in the main are waiting to see if it works. Their view is since we're not required to do it, why don't we wait and see if this works for you guys before we revamp what we're doing and redirect our resources to doing it.

So doubtless as we have more data and are able to share more data with the states, I think we'll see -- as we can demonstrate the effectiveness of the program, you will begin to see more states adopting the same program.

Then again, the next part, which there is a slide for I believe, again is simply showing you by state whether it's adopted, when it was adopted. So it just gives you more background information. Any questions? And again, the "no's" include those two public employee states, which is I think a little bit misleading. We've really got about half the states having adopted the policy.

MR. RINGEN: When you say similar for North Carolina, does that mean similar to federal?

MS. WHITE: Yes, yes. That it's not an identical program but it's a similar program.

MR. BURKHAMMER: On the "no's," is that "no" forever and "no, wait and see"?

MS. WHITE: It's "no" for the time being. At this point in time, they have not adopted, they have not chosen to adopt.

MR. BURKHAMMER: How would -- going back to what you said a minute ago, let's see how it works, how are they going to know or how are they going to determine what methods they're going to use to decide whether it works?

MS. WHITE: A couple of things could happen. One, we share data on a daily basis with states. Every time there's an OSHA policy change, every time OSHA data is available, if we do any kind of formal program evaluation as we develop new descriptive information, all of that information is shared regularly with our state partners. We send it out to them so they are aware. We meet with them four times a year, and major policy issues such as this one are frequently on the agenda. It's something they're interested in and we're interested in. So there's no question about having the information on which to make a decision.

Probably a key thing that could happen, if OSHA finds that this is in fact the most effective way to do enforcement on construction sites, OSHA can always make the policy mandatory. That is, we could require states in order to remain, to continue state plan approval, to come up with if not the identical program a program we could determine to be at least as effective as. So a possibility would be that this program requirement become mandatory, as opposed to the current status in which it is encouraged. So there are a couple of ways we could go about this.

But primarily, we hope that the program will essentially on its own merit demonstrate that this is the most effective use of resources, that this makes sense.

Another way states find out about the effectiveness of programs such as this is we will tap a Mark Brown or another state designee and say "Okay, you're running this program. Share the data with your colleagues. Show them why this works." Okay?

All right, and then the next couple of charts deal with -- I believe my understanding was you touched somewhat on this issue at your Portland meeting, so again I provide this for your information. This is information on the most frequently violated construction standards. Now unfortunately we lost our copy of the comparable chart from the federal side. It's my understanding that this is very similar to what -- there's both a bar chart and a narrative chart in your package. Okay. Let's look at the bar chart first.

This tells you by, again, to be visually helpful, you essentially find there are top four and then there are six more, which are pretty close together, the most frequently violated construction standards. This again is in state plans, states only. Then the next following chart shows you the same information, just in a different -- I'm sorry, that's the wrong one. The one you had before. That one. Essentially you have two cuts of the same data in terms of standards. Any questions about that?

Finally, the last chart shows you again on a summary basis for all of the 25 entities, the number of fatalities by employee size. I know that's an issue you've been concerned about. My feeling is it shows the same thing that you discussed in your last meeting, that is, small employers have more fatalities. Any questions there?

MR. WILLIAM SMITH: Let's go back one slide, and of course, this is just for us for the future, and it doesn't have anything to do with the number on the chart here, but in the future when we look at hazard communication being a 1926.059, now is it, because of the recodification, is it now going to be a 1910.1200 and how are we going to know that it was a construction citation or a general industry in the future? Is there a method that we're going to be able to break that down? Do you follow me?

MR. SWANSON: Yes, I do follow you, and we've had a little glitch with being able to follow our 1910 construction citations to date, and hazcom is a good example, because some of the construction hazcom violations that we looked for for a presentation Joe was going to make we didn't pick up some of the 1910s. But we are going to do that. It's a software problem. We will be able to do that, yes.

MS. WHITE: And the states are using the same IMS program. States report all their data through IMS, so the fix will apply to everyone.

MR. WILLIAM SMITH: That's just scary.

MS. WHITE: Yes.

MR. WILLIAM SMITH: I mean at least now we can see that a 1926 is construction, whereas in the future, everything's going to be 1910 and we're going to hope that we separate the difference between general industry standards and construction standard citations hopefully somewhere, with somebody. I know. But that's a problem that we all had when we said let's not do it and everybody agreed except OSHA. Thank you.

MS. WHITE: All right. That is the summary of the information I've brought with me today. I would be happy in future meetings to bring additional data if that's what you need. I do know that in your last meeting in Portland that a number of states participated and shared information. As I said, we have quarterly meetings with OSHPA, which is the group representing all of the state plans. We could certainly arrange for an exchange at one of the regular OSHPA meetings as well.

But most importantly, you have two incredibly able state plan designees serving on the committee. So if there are any questions for my office, we would be happy to answer them.

MR. RINGEN: Well, thank you very much. We're glad that you're here. I think most of us on this committee feel that we should have more information about what the state plans are doing, and that meeting that we held out in Spokane was a useful first start in that direction.

We also sense that sometimes when proposed standards or something like that come before this committee, and we ask whether OSHA is taking into account what the states are doing in that area, it seems that that's not always the case to us. We may be wrong about that, but we think that there's much more that can be done with the states than is being done.

MS. WHITE: I think that most states would likely agree with that sentiment. OSHA, I think, has made a greater commitment to state preparation, both in the development of standards and enforcement policy during the last four years than the agency had made before. We invite representatives of state plans to participate in all of major policy committees. States are provided advance copies of standards proposals to review and advance copies of compliance directives to review.

Even given that, certainly since of my primary responsibilities is to ensure and facilitate communication with the states, I think most of the states feel that we are as yet doing an inadequate job. You can imagine the difficulty when OSHA itself, as a federal entity, attempts to come up with a proposed standard, and then you have in addition perhaps 23 different voices also with a different opinion.

That is why state standards do not have to be identical to the federal standard. They simply have to be as effective as. Now in truth, it doesn't often work that way. In truth, most standards are identical and as a result there may or may not be some problems because of that. But I think the states would very much appreciate an opportunity to participate with you and again, by virtue of having two state representatives on this committee, it provides them with I think very good access to make their opinion known.

MR. RINGEN: I asked a question comparing Kentucky and Oregon a little bit rhetorically, but to highlight kind of a problem obviously, and that is that it's difficult for a federal agency to regulate, if you will, a state agency.

MS. WHITE: Exactly.

MR. RINGEN: And politically. That's got to be difficult.

MS. WHITE: Yes.

MR. RINGEN: And maybe one of the things that this committee can be somewhat helpful with, at least in terms in the construction activities, is to look at the relationship federal OSHA and the states, and how well that monitoring does take place. I think in most instances, at least from the employees' side of this committee, that our representatives in the states will almost invariably -- there are times when that may not be the case -- but almost invariably say that they have a strong preference for the state programs over the federal programs.

MS. WHITE: I think that's true, and that may in fact reflect, especially in construction, that over the years states have historically been more active than the federal program has. Again, there's greater penetration. They are able to do more inspections overall than the federal program.

MR. RINGEN: Thank you. Well, before you go -- I don't want to monopolize the conversation here.

MS. OSORIO: I just want to say "thank you," because for the last five or six meetings I've wanted some state data. So I just want to thank you, because I know it is harder bringing so many different entities together. Thank you.

MS. WHITE: Good. Thank you. Well please, as I said, let us know if you want more information or have additional questions, we're here. We'll be happy to participate.

MR. RINGEN: And we're here if we can help.

MS. WHITE: Great. Thank you very much.

MR. RINGEN: Next on the agenda or are there other comments or questions about the construction directorate before we finish up here, other things that we should do? The question about whether we should resurrect the statistics work group we'll get back to tomorrow, and I think that's probably a useful thing.

I wanted to get back to you, Mark, with one question that I have for you. How do you judge quality?

MR. BROWN: Could you start out with an easier question?

[Laughter]

MR. RINGEN: No, no. It's your question, not mine.

MR. BROWN: I have to say too that I chuckled a little bit. I was looking at Stewart when you made the comment about the difficulty OSHA has regulating their state plan partners. I just want to say from my perspective I don't think they have any difficulty at all. I think they do a good job. I know that if you take a look -- and I would really encourage you to do this -- if you take a look at the biannual audit evaluations, it is comprehensive.

I mean it is a comprehensive review of our performance. I sometimes think and I know Joe Dear agrees that there have been too many points of measurement, and that's been reduced significantly in recent years. So I think we have a better sense in terms of whether we're really moving towards those strategic outcomes we have in mind. But I think OSHA does a good job of regulating those state plan states including Washington.

The answer to your question is that in the state of Washington, through our business planning process, we have what we call the "Big 2" and the "Little 4." So we actually have key performance indicators that we think represent the notion of what quality is and how we measure it over time. The "Big 2" will come as no surprise to anyone at this table. It's injury and illness rates and it's fatality rates.

We also have four secondary measurements that are key indicators for us, and they include total number of inspections, violations, percentage of violations, serious and then important to me is looking at ratcheting up penalty dollars. So again we have two major, and those two major, by the way, injury and illness rates and fatality rates, are two of a smaller number of performance measures that are part of the agency's overall business plan, which we have to submit to the state of Washington, the governor's office as part of the state's overall strategic plans.

So I mean those are the, I guess, the six elements that help us draw bottom line in terms of quality. I did want to come back and make a point, though, to Mr. Smith's question about the purpose of focused inspections. We got late into that in I think about the middle of '85, and even though focused inspections are I think about eight or nine percent of our total inspections, I can tell you that in our case I think while the jury's still out in terms of overall evaluation of focused inspection, it has helped us to get a bigger bang for the buck and ratchet up overall production.

I don't remember the exact number, but our total inspections have increased I think by over 20 percent in the last couple of years without any additional resources. In construction, that number is even greater. The focused inspections initiative has allowed us to move people to more sites, and then you come back and take a look at whether it's made a difference.

We do have the preliminary BLS numbers for '96, because do the data collection. While it's unofficial and subject to change, and I've been told not to mention it. Of course I have been for some months, the bottom line for us is that we're looking at an 8 to 10 percent reduction in injury and illness rates in '96, and construction is about a 25 percent added on that. So we're looking at 10 to 12 there. We haven't seen those kinds of numbers in a long time.

Now is our focused inspection program making a difference? I think so. I can't tell you precisely how much it contributes to overall production, but I think some and I can't tell you how much it contributes to overall reduction in injury and illness rates and fatality rates, but I'm prepared to say some. But as we gather more data over time, we'll have that available and we're willing to share it with you.

As it is, we have a little bit of data. It's this large. But I do want the committee to have it and so I'll give this to Newt (ph) some time before the end of business tomorrow and hopefully some of that can be reproduced and shared with all of you.

MR. RINGEN: Mark, are you able to get injury and illness rates for each employer that you inspect? You can certainly get it from your worker's comp system if you wanted to. But can you see what are the injury and illness rate characteristics of those employers that you inspect in general versus all employers in a particular industry, and what are the injury and illness rates for those employers that qualify for a focused inspection, compared to all employers that are inspected?

MR. BROWN: Yes. Our focused inspection program, of course, is targeted to employers who are not the outliers. They are the better performers in terms of their injury and illness rates. We do have the advantage I think unique in the country in that we're also the insurer. We run the worker comp system, and we also regulate the self-insurers. So yes, we have employer-specific data that we intend to analyze over time.

One of the things that's happened in our state, I know that in our OSHA evaluation, our lost days -- lost work day time rate has fallen, I think, the largest reduction in the country in the most recent analysis from OSHA. But if we get more data, we're more than happy to share it. I might also say to Mr. Burkhammer's question to Paula in terms of how the state plans evaluate the focused inspection program and make decisions.

I think primarily through the quarterly meeting of the state plan administrators, the OSHPA meeting, which is a joint meeting with OSHA. Very collaborative. A lot of data being shared by all of us who are in the focused inspection business, and so it's a very collaborative approach, but primarily it's done through those quarterly meetings.

MR. RINGEN: Any other comments?

MR. BURKHAMMER: Two. In looking at the fatality data and thinking back over the last 12 years that I've been coming to these meetings as an observer and as a participant, we still don't seem to be able to have a system, and we talked a lot about this in the last nine years we've been doing the statistics review and trying to come up with a new recordkeeping provision.

The fatality counts are still off. I mean you look at the state plan fatality counts and combine those with the federal fatality counts and compare them to the BNA fatality counts and compare them to the National Safety Council Construction fatality counts. The numbers are just a wide gamut of range. I hope that sooner better than later we can find a way to get all the fatality counts in construction correct, because I think there are far more than what we're seeing.

Once we do that, I think it's going to help us do a lot better in our trending and fixing some of our standards and gearing them to the right places rather than the wrong places. I hope that we can do that over the next few years.

MR. RINGEN: I think the Census of Occupational Fatalities is getting to be very close to the real thing. It's the best thing that we have. Now in terms of the data that we have from OSHA and the states, still only about half to two-thirds of all the fatalities that's recorded in the Census are ever inspected or reviewed by OSHA. So that's where there are huge gaps.

MR. FRANKLIN: One of the problems is, of course, the big gap in coverage in certain places. In the self-employed, for instance. Now we don't inspect the self-employed or record fatalities, and there are a lot of self-employed people in the field.

MR. RINGEN: You may or you may not?

MR. FRANKLIN: Well, normally we don't. Normally we don't. Some self-employed fatalities get in there, but not many.

MR. RINGEN: Bill?

MR. WILLIAM SMITH: The last thing is Mark made a point about the effectiveness of focused to reduced injury accounting, because you can make an effort to avoid the injury or fatality. I mean that's the purpose and that shows specifically that what we're doing is the right thing. The charts that show '94, '95 and '96 show the number of inspections and the number of focused.

What we need to get OSHA to compare them to, as Mark was saying, either the fatality rate or the injury rate, and see that that's coming down with the focused program. This BLS that was handed out a moment ago is up to '94. So they're three years behind all the time. I know you handed one out that showed '95, so I think internally OSHA, based on the focused inspection from the federal-state plans that you all do, which are based on your numbers, I think we need to compare what we're doing in the area of projects being inspected and then the reduction in the injury and illness and fatality data, which wasn't presented exactly today. But I mean if we can get that together by the next meeting, that would be helpful. We'll just look at it.

MR. FRANKLIN: I'm not sure how to relate -- how are you suggesting we relate it?

MR. WILLIAM SMITH: Well, currently like what Mark was saying for an evaluation, I mean if we're going to continue to do focused inspections, and we say we can get to more construction projects, the effectiveness of that program should be the reduction of past numbers, of injury and illness and fatality data.

Because if the numbers keep going up, then the program we're doing is not working. You need to compare the two somehow in order to find out in the evaluation whether we're doing the right thing or wrong thing.

MR. FRANKLIN: I agree with you, but there are some qualifiers too, like when the construction activity takes place. As there are more people working, the more projects going on, the more fatalities you have. So that when you have a lot of construction going on, you're going to have more fatalities as opposed to a recession or something, when there's not much construction.

MR. WILLIAM SMITH: You know that's been said --

MR. FRANKLIN: I mean I'm not trying to argue --

MR. WILLIAM SMITH: I'm just saying that argument of construction up and down, I mean me and Stew talked about it before. I mean we can throw that argument around, but to be honest with you, I mean basically the number of inspections we have out there compared to the number of job sites out there are unbelievable. So even though the marketplace may be down for big jobs, there are still jobs going on.

We show basically with the number of inspections we have, it would take 87 years to visit the same place twice, currently the way it is. So it's not like there is

-- there's no place to go, so we've got to sit in the office today kind of an attitude. There's plenty of places to inspect. It's just how they're targeted and we understand that.

MR. FRANKLIN: I'm just saying, if you want to evaluate the fatality data, there are other factors other than the program that affect that. Employment, I think, varies from 3-1/2 million to 5-1/2 million. So that's a lot of fatalities that are probably going to occur in the construction industry.

MR. WILLIAM SMITH: I totally agree with you. Just like what you just said about self-employed being a statistic but never inspected. I mean there ought to be a method for us to knock them out of the chart. If you never go to a self-employee, where there's a fatality, it could be included in a big chart but it should be separate from the charts that we use. Because that would help you. It wouldn't hurt you.

MR. FRANKLIN: We don't find that a bad thing.

MR. RINGEN: Let's get back to this issue tomorrow when we have more time. We're running a little bit behind schedule and we want to take a break now. I think this discussion has showed how useful the presentations that you've made have been, and we appreciate that.

MR. SWANSON: Let me, if I may, make a comment. I had a litany of responses to Mr. Smith's questions earlier, but I think I can sum it all up on focused inspections by saying we're trying to get ours to work like Washington's apparently does, Bill.

[Laughter]

MR. WILLIAM SMITH: Thanks, Bruce.

MR. RINGEN: Okay. We'll take a ten minute break. Be back here at five to 11 please.

(Whereupon, a short recess was taken.)

MR. RINGEN: From NIOSH, Diane, did you want to start out?

NIOSH Director's Report

MS. PORTER: We agreed at the last meeting we're going to do a presentation of NIOSH research at every ACCSH meeting from now on, in response to things like the construction advisory, the evaluation that was done several years ago. Marie Herring-Sweeney (ph) is our construction research program coordinator, and she's here today, as well as Ken Linch, who is in our Division of Respiratory Disease Studies and is working on silica. So let me turn it over to Ken.

MR. LINCH: As Diane said, my name's Ken Linch. I'm an industrial hygienist for the NIOSH Division of Respiratory Disease Studies. I work for the hazard surveillance section. So for some time now, I've been looking at exposures in the construction industry and early on, like five or six years ago, I realized that part of the problem is that construction managers and construction workers and even health and safety professionals aren't very aware of crystalline silica exposures in the construction industry.

Initially when I would do a literature search, there's been a lot written on silica and silica exposures, but very little concerning the construction industry. So the first part of what I want to present to you is some information that's typical of information that I've been providing in numerous presentations around the country, to try to spread the word that silica is an important problem in the construction industry. I'll try to go through that relatively fast so that I can have more time towards the end to discuss what we're currently doing.

This is a photograph that I got from the Library of Congress, and I found that it was really interesting, because this photograph was taken in 1942 at a dam project in Tennessee. I started looking at -- these are hand-held drills that they're using. Well, the first thing you notice is nowadays we wouldn't use a large number of workers to do this job. We would probably only have a few workers doing this.

However, 50 years later, in 1992, I took this photograph, and if you study the two, these drills are basically identical. There hasn't been anything of note to prevent dust exposures during that 50 years. The water that you see on the pavement here is from another operation. It's not water for these drills.

First of all, I'd like to go through briefly there's a lot of different settings in which silica, crystalline silica dust can be generated on construction sites. Rock drilling and abrasive blasting are very well know. You see that they occur in the literature quite often. The third item, concrete and masonry work, however, is very important and there's only a handful of articles that have been written on this topic.

Earthwork and rock crushing. Demolition, particularly demolition of concrete and masonry structures. Dry sweeping. Drywall, particularly the drywall joint compound when they sand it dry, and compressed air, which is often used to blow off equipment and even workers' clothing.

This slide is just to -- I've used it often. My background is in mining engineering, and most of my health and safety work has been in mining. However, I would drive down a highway and I would see construction workers in a cloud of dust doing concrete work along a highway. They're highly visible. I would wonder "Well, in the mining industry this is taken very seriously." So I got to wonder.

Here, there's only 250,000, maybe 300,000 total U.S. miners if you add all of the coal and non-coal workers, and I think that even includes office workers. But you compare that to the total in the construction industry, and I don't have -- I've got 4.6 million here. Actually, it's higher than that when you include the 1-1/2 million self-employed and there's about a million unemployed.

NIOSH did a study some time ago, in the early 80's, called the National Occupational Exposure Survey. In that survey, there is an inventory of products made through general industry, so they came up with an estimate of 700,000 construction workers potentially exposed to crystalline silica. This doesn't mean that they were exposed; it meant that they worked in an area where materials were identified to contain silica.

However, that's really a huge number when you consider the amount of resources that have been spent towards preventing silicosis in the mining industry.

I'd like to show you three situations real quickly, in which I've seen over-exposures. Construction drilling. This was a situation where a school was being built, and they needed to build an access road so that they could get in to build the building. This worker was using a rock drill to blast for the road. You can see him on the rear of the drill. He's standing to the left. He's wearing a respirator.

When the NIOSH investigators came on site and we put on our respirators, this worker put on a respirator. In questioning, we found out that it was a respirator that he had purchased himself at an auto parts store, and we looked at it. We found out that it had pesticide cartridges on it. Supposedly he had purchased it for farm use at home.

As you can see, this rock drill is producing quite a lot of dust. The dust collection system -- this wasn't in operation during the day that we were there -- this is a davy drill. It has a rotoclone dust collector. One thing that we're afraid of is that since NIOSH has worked with MSHA and MSHA has increased the regulations on dust control, particularly at surface coal mines, for example, if this was a situation at a coal mine now, the MSHA inspector wouldn't even have to sample. They could shut it down on site. Just seeing that the operation is producing dust is enough.

So a lot of contractors may be using this equipment on OSHA regulated properties, knowing that they can't use it on MSHA regulated properties. As you can see, the dust was quite bad and the only control really was the direction of the wind. We sampled for six hours and over that time period the concentration was .08 milligrams per cubic meter of respirable ports. The NIOSH REL for an 8 to 10 hour shift is .05 milligrams per cubic meter.

Building renovation, concrete cutting and jackhammering. This is a multi-story building that had been under renovation in downtown Pittsburgh. This building was being completed gutted, and as you can see, the sidewalk is open to pedestrian traffic. So they couldn't open windows to get any airflow through the building.

This is a plumber using a gasoline-powered circular masonry saw to saw concrete patches in the concrete, so that squares could be chipped out where they're installing floor drains in the new restrooms. We had sampling equipment on the worker and on the two stands that you see in the foreground.

Here's a close-up of what he's doing. He's making several passes. He would also make passes in the other direction, sawing a couple of inches into the concrete and then would use a jackhammer to chip out the square. You can see a lot of settled dust on the concrete even in that picture.

This is another angle showing the saw a little bit better. You can see the electric jackhammer on the right foreground leaning up against the wall. They used a floor stand fan to try to direct dust out of -- they're only allowed to open one window, since they're afraid something would fall to the sidewalk below. So he was allowed to open one window. That worker had a disposable particulate respirator on.

Another set of workers, this is a sheet metal worker that was working in the penthouse, was using an electric jackhammer to break up a concrete pad. He had a half mask respirator on with HEPA filters. What we found out was that the concrete cutter, the concentration over a six hour period -- at the end of six hours, it was wore out and he knew that it was a pretty bad job and he ran out of gasoline. So he went and hid and I couldn't get a full 8 hour shift of sampling on him.

But what we did get over the six hour period, a concentration of 14.2 milligrams per cubic meter of respirable dust. Again, I would remind you that the NIOSH REL is .05 milligrams per cubic meter for an eight to ten hour shift. So if this worker, he worked six hours, if he had worked eight hours, that would be approximately 284 times the NIOSH REL.

The area samples are also important. What you didn't see in the picture was that there was other contractors, such as elevator mechanics, other trades that are working in the area that have to pass through the area, and they're not prepared to protect themselves either. So the area samples of 3.2 and 4.1 are also very high.

The jackhammer operator, you know, most people really probably don't think of jackhammering as producing a lot of dust. But even something where you can barely even see the dust being generated, we found a concentration over four hours of .31 milligrams per cubic meter of respirable quartz. This worker had much better respiratory protection. He was the one with the half-face respirator with HEPA filters.

Highway maintenance, concrete drilling. This is something that I've seen recently on a couple of different work sites. This is a situation where an interstate highway is being repaired; they need to saw out blocks of concrete and remove the broken concrete. Before they pour the new concrete, they need to install rebar and still in the hole. So they use this piece of equipment. It's a backhoe with a special attachment called a dowpack (ph). It uses three pneumatic drills to drill three holes at a time horizontally in the surrounding concrete.

Of course, it doesn't have a dust collection system and it doesn't use water through the drill stem, so there's just quite a bit of dust being generated. They usually use two of these machines. Usually it's an operating engineer in the cab of the backhoe and a laborer that's running a drill, at the controls that you see there standing. This is what they're doing. They're drilling these holes horizontally so the rebar can be installed.

Here you can see the laborer. He's wearing a disposable particulate filter respirator, and as you can see, the only real control is the direction that the wind's blowing.

Here's the other crew, and he's using an air line, pressed air line, since they have a compressor available, to blow dust off the pavement so that he can see lines that they've put on the pavement to line up the drill. Of course, this could be done with a waterhose or with a vacuum system. It would prevent them from reintraining the dust.

The machine operators were a little bit further away, so their exposures were generally low to non-detected. The laborers, however, had some pretty significant exposures. We sampled this over two shifts. Laborer 1 for the first shift had a concentration for about a six hour time period of .81 milligrams per cubic meter of respirable quartz, and .42 during the second shift.

Laborer 2 was a little bit lower, .41 milligrams per cubic meter and .32 milligrams per cubic meter of respirable quartz.

This picture is being used in the recent NIOSH -- some of these pictures -- all three of these situations -- in fact, are in the new NIOSH Alert for Construction. This picture I use sort of as our poster boy in a sense, because it's fairly typical. You'll see construction workers sawing masonry and either using a handheld saw or in this case using a saw that you can actually provide water to the blade, but sometimes the maintenance isn't kept up on it and the water system clogs and it just doesn't get done, and they end up sawing dry. This worker isn't wearing a respirator.

In general, what we're finding was that either you plan to control this dust and exposures are low, or the situation is uncontrolled and exposures are very high. Many of these exposures are of short duration; maybe they're only doing this during the summer months or over a very short time period. But the concentrations are very high and there needs to be controls instituted.

The latter part of my talk I found out too late, after I made these slides, someone told me that you shouldn't use red slides unless you're wanting to sort of like waving a red flag in front of bulls or something. So maybe I should have used blue or green or something, but I found out too late so I'll have to live with it.

NIOSH has had recommendations concerning silica and medical monitoring for a long time. In fact, in 1974 NIOSH came out with the Occupational Exposure to Crystalline Silica criteria document. NIOSH's recommendations haven't changed dramatically in the past 22 years. There's been three alerts that have come out recently. In 1992, there was an alert on rock drilling and also an alert on sand blasting.

The criteria document stated that medical examinations be made available to all workers subject to exposure to free silica prior to employee placement and at least once each three years thereafter. The criteria document defined exposure to free silica as exposure of the worker to an airborne concentration of free silica greater than one-half of the NIOSH REL. If medical monitoring would have been made a requirement for workers exposed at one-half the REL 20 years ago, we would today have much more information on which occupations in which industries there is a risk of silicosis.

This has been a real problem. People ask us "How many workers are exposed," and it's difficult for us to tell. They ask us how many workers have silicosis, and it's very difficult for us to tell, since we don't have a complete silica standard. All we have is an REL and medical monitoring and sampling by the employers isn't a requirement.

It is impossible to include all of the -- got to catch up on my slides here -- some more of the suggestions from the NIOSH criteria document. Of course, a written respiratory protection plan, employer sampling, post warnings, engineering controls, personal protective equipment, training and maintenance and enforcement.

It's not possible to include all of the outreach work that has been done by various parties for silicosis awareness in a brief presentation. So I'll focus mainly on what I've been involved with and silicosis prevention in the construction industry.

There have been many presentations made to various meetings, workshops and conferences over the past few years. The main goal was to raise awareness of silica exposures and silicosis in the construction industry. A few years ago, the construction industry was not routinely mentioned in the literature, but now I believe more people are becoming aware and construction work is being recognized as a risk of silicosis.

Even simple things like medical books, when they have a chapter on silicosis, now you're beginning to see pictures of some of them my pictures, that people have found out that I routinely take pictures at construction sites of workers being exposed, and so at least at some level an initial step is being made to make researchers and physicians aware that construction workers are at risk.

A three-page fact sheet was developed and sent to more than 11 construction trade journals. This fact sheet, titled "Important Information for Construction Workers on Deadly But Preventable Dust Exposure," can be found on the OSHA Salt Lake City home page.

In addition to the previous alerts that were published in 1992, NIOSH published an alert titled "Request for Assistance in Preventing Silicosis in Dust in Construction Workers." That was published this May of 1996. Initially, we printed 8,000 copies of this alert and there was great demand. We were out of the copies in only four weeks. I have ordered another 30,000 copies and we'll be sending copies to each of the 250 OSHA offices, so that we can get OSHA inspectors interested in sampling for crystalline silica during their inspections.

NIOSH has just published a brochure. In fact, it was just printed, just came back from the printers last Tuesday. This is the small blue brochure. It too will be sent to all of the OSHA offices.

That brochure, along with -- you see there's a poster that you have, discusses a worker that we saw a number of years ago in Morgantown, West Virginia that died of silicosis and left behind his family, and there's a little story about the worker in this little brochure.

A number of small articles have been written, including "Taking Silicosis Personally," which appeared in the Winter-Spring 1995 issue of Excel, a quarterly newsletter of the Center for Excellence in Construction Safety of West Virginia University. "Concrete and Masonry Dust: A Concern for Developing Lung Disease" appeared in -- and Newt's familiar with this publication -- Impact. It's from the Building and Construction Trades Departments and CPWR.

"Preventing Silicosis and Dust in Construction Workers" and the cover titled "Silica: It's Not Just Dust," appeared in Construction Safety News, published in the Spring of 1996 by Chicagoland Construction Safety Council. You'll recognize the photograph as the one that I used today. They were very good at picking up on our initiative. In fact, I believe Chicagoland has started developing a training module for silicosis prevention in construction.

NIOSH continues its surveillance efforts through the NIOSH-funded sensor states, and I list the sensor states on this slide: Michigan, New Jersey, Ohio, Wisconsin, Illinois, North Carolina and Texas. Unfortunately, the largest construction state, California, is not there. New York and Florida would be nice to have for construction. Texas, however, the number two construction employment state, is a new sensor state for silicosis.

The Baltimore District Office of the U.S. Army Corps of Engineers recently requested information. Basically, the slides that I've been using across the country, so that they could develop a training module to train their employees. Once developed, they hope that other districts will be interested in using this information.

Recently, NIOSH, OSHA and MSHA have been working together in an interagency campaign to prevent silicosis. As a part of this effort, NIOSH has been helping MSHA and OSHA to write educational materials that have been made available. Through this process, I have helped to keep hazards of silica exposure in the construction industry in the picture. Whenever I've been asked to review these materials, I've always made sure that construction has been at the table and people realize that construction workers are at risk.

OSHA asked me to give a training session to their trainers at the OSHA Training Institute in Chicago not long ago to help kick off the OSHA special emphasis program on silicosis. So I gave a four hour session there and recently gave a two hour talk at a statewide industrial hygiene meeting for OSHA inspectors in Washington state. So you get off lucky today. I'm trying to hit this in about 20 minutes and not four hours.

NIOSH has developed a general interest poster on silicosis, which I've handed out. NIOSH plans to do posters on rock drilling, sand blasting and concrete sawing and drilling. There's also a brochure similar to this small brochure that NIOSH is doing on rock drilling. I think that's about all I have.

MR. RINGEN: Thank you, Ken. Any questions for now? Ana Maria, and then we're going to follow up with Ellen, who's going to talk about -- Ellen Roznowski. Go ahead.

MS. OSORIO: I just have a quick question. Thank you for that nice overview. I know some of the excellent work you did with the Texas Health Department with the silicosis cluster they've been working with. It's really been great. I have one question. I noticed the citation for IARC that you give here in 1987, and I guess you're aware that IARC is about to upgrade the association between lung cancer and silica.

MR. LINCH: Yes, but they just upgraded it.

MS. OSORIO: Oh, it's already out already?

MR. LINCH: Well, I've heard from people that were at the meeting, that it was upgraded to Grade 1 or whatever it is?

MS. OSORIO: Yes, right. It's not out there. I'm just wondering -- I think that might be a bit more of a motivation for people, perhaps for people to really try to get at the control end of things.

MR. LINCH: I agree. I think it would get people's attention.

MR. RINGEN: Mark, do you have any idea how many cases of silicosis are compensated in Washington state each year among construction workers?

MR. BROWN: No.

MR. OWEN SMITH: I have a question for you. If you use the same respiratory protection that you do for the lead, will that suffice for the sand and silicosis, or do you need another standard?

MR. LINCH: I think -- well, there's different situations where if you're exposed to lead and silica at the same time, it probably -- such as in sand blasting on bridges, probably the lead regulations that we have now have gone a long ways to help prevent silicosis. That's my own feeling.

However, there's other situations where workers aren't concerned with lead exposure. It just isn't there, in which they're not aware that the dust is as hazardous as it is. In sand blasting in particular, we're finding that workers are using respirators that are old, that have been altered, are not really fit for use and couldn't possibly give the protection that they need. So I would have to say that there does -- this problem does need to be directed some regulation towards it in particular, since lead or asbestos aren't always a problem where silica is a problem.

MR. RINGEN: I have one comment about this poster which I shared with Diane earlier, and that is I think -- while I think it's an excellent campaign on a very, very important problem that we've looked at for years now, the title "Silica: It's Not Just Dust" is unfortunate, because we've been trying to make the point that dust, what we have called "nuisance dust" for a long time is something very different.

It makes it appear that maybe other dusts are not very dangerous if you look at it -- if you juxtapositioned it in that way. At least that was what struck me when I first saw this poster. We're doing some research, together with NIOSH in part, on general construction dust and its hazards, and I think that's a very underrated risk in our industry.

MR. LINCH: I think that the title, from what I can tell, how it was chosen was that a lot of people felt that workers or managers were seeing dust as just another part of the job, and "It's just dust; we work in it every day," and there's no big deal about it. The statement was trying to change that attitude, that it's not just dust. But I do see your point.

MR. OWEN SMITH: I have another question. With respect to the guy that was doing the saw cutting, if his -- if the machine had been working properly, would it have controlled the dust?

MR. LINCH: No. It had no method of controlling the dust.

MR. OWEN SMITH: Don't they use water to keep it down?

MR. LINCH: In this situation, what they could have done, since it's in a building that doesn't have utilities in it, they would have needed to bring in like 55 gallon drums of water with say a hose attachment to it, and used a saw in which water can be provided to the blade. If not, if it's a metal blade and which water is not going to hurt the composition of the blade, they could at least run water across the surface of the concrete wall they're sawing, and that in itself would reduce a lot of the dust.

MR. OWEN SMITH: How about the guy that was -- in this picture that you have there, out in front of the building? They normally have water that goes around the blade. Had that been working properly, would that have controlled it?

MR. LINCH: Most of it, yes. Usually the water for those blades -- well, it's not usually; it's always -- the reason this equipment provides water to the blades is to protect the blade from wear, not to protect the worker. It wasn't designed to -- as a spray system, such as in coal mining, to reduce the dust exposure. It's entirely designed to cool the blade and prevent wear. So I can't say that it would entirely prevent the problem, but it would greatly prevent the problem.

MR. RINGEN: Any other questions or comments? Then Ellen, if you want to pick on this. Ellen Roznowski from OSHA.

OSHA Regulatory Issues

MS. ROZNOWSKI: Yes. Director of Construction, the Office of Construction Services. As Ken said, MSHA, OSHA and NIOSH and also joined by the American Lung Association, in sponsoring a major national campaign to eliminate silicosis. The Secretary of Labor, Robert Reich, kicked off this campaign October 31st with a press conference, and I have just a little bit of the video press release that the agency put out in order to announce this.

Well, there is a news release in the back. We were very efficient. As soon as OSHA received copies of these publications, we sent them right out to the field, because that's where we thought they were needed, so there are not copies here for you, except we asked for some to be sent to us. So if they get here by tomorrow, they'll be in the back of the room. But these are the publications that OSHA came up with as part of the campaign.

The bigger perhaps the biggest aspect of this public campaign that the agencies were putting some resources towards in the near future is a conference. That conference will be held in Washington, DC March 25th and 26th. The conference will be two days. It will basically be reaching out not just to academics or government types that you usually see at these conferences; this will actually -- we're going to target a lot of the outreach, people with day to day responsibility for protecting workers from occupational hazards, particularly silica.

So we are developing an outreach list that focuses mainly on association, trade labor unions and other non-profit organizations that have some interest in this. As I noted, the American Lung Association is a co-sponsor of this conference. The organizations on the community outreach list will be afforded the opportunity to become what we call conference partners, and what we'll ask them to do is to publicize the conference, and they'll all be getting the package for their own little publications and newsletters about the conference and also the whole silica initiative.

The conference itself will have two plenary sessions, but will be focused mainly on workshops, and the workshops will talk about such things as success stories. So if any of you are aware of operations that have successfully put in place controls for silica, if you could tell me or drop a message by Knut, we're going to be coordinating with Jack Finkley (ph) on this. We will in fact be able to incorporate them into the workshops.

The workshops will also talk about engineering controls, medical monitoring and training, which are the other aspects of good silica prevention programs. In terms of the engineering controls, the workshops will be focused on specific operations where we know silica is a problem, like construction -- I'm sorry -- like abrasive blasting, like drilling, like highway transportation systems maintenance.

Then we'll also look at specific sectors like construction. One of the things that -- I'm coordinating the workshop for construction -- and one of the things that I would like to focus on that Ken had up on his list is demolition. The fact that there's a lot of demolition and lot of recycling of silica-containing materials means that now, I mean, more so in the last five years than previously, means that there's a whole slew of exposures that we hadn't really quite evaluated yet.

So once again, if any of you also have other ideas of things that you'd like to see in those workshops, please just get in touch with me. Any questions? Okay. Thank you.

MR. RINGEN: Thank you Ellen. Let's see. We're doing something about the agenda, and I apologize to those of you who are in the audience who may be here expecting to hear about the OSHA regulatory issues. But what's on the agenda for OSHA regulatory issues will be covered tomorrow morning instead of today at 9:00 a.m., since we have time available tomorrow and we're running behind today.

Now let's see. Did we finish up with the NIOSH presentation?

MS. ROZNOWSKI: Yes.

MR. RINGEN: Okay. Thank you all very much. The silica problem we all recognize is a big problem and a serious problem, and we're glad that it's getting the attention that it's getting. The final item on this morning's agenda is the report from the OSHA Training Institute. It's something that Steve Cooper has been asking for a couple of meetings, and it's unfortunate that he's not here but we have two representatives from the OSHA Training Institute ready to make that presentation, I think.

(Pause)

MR. RINGEN: Okay. Manny Ypsilantes from the Training Institute.

OTI's Activities in Construction

MR. YPSILANTES: It's a pleasure to be here. It's been a while. What I would like to do is I guess go over some of our activities that we're participating in construction, both for our internal people and for the private sector.

Last year was a quite exciting year, I would say. We had shutdowns and budget constraints. In lieu of all that, I think we had a pretty productive year. Some of the things that we did that I would like to highlight in conjunction with OSHA Training Institute and the Directorate, Construction Directorate, Bruce Swanson -- I see you're here. Good morning Bruce.

We've been working pretty close. One of the pleasures of coming here is finding out what the pulse is about what the industry wants and where we're going, and it's sort of like helps us keep in track. So it's always a pleasure for us to be here.

What we did last year was sort of a modified year, but we've been working, I think, in tangent with the industry I hope. We did approximately 17 courses at the Training Institute which were just construction, and approximately 22 road courses. The changes, I think, the direct training and doing training at the Institute is changing rapidly. We are now looking at different methods and media, other than direct training, even though direct training is probably the most expensive and perhaps the best way to learn, I think, because of the cost and the changing needs. Obviously, OSHA's not going to probably get bigger, even though our funding this year has been much better than last year. I'm glad to see that.

We're directing our efforts on how to reach our constituents, both internally and externally, in the organization, and we've been working with the CD Digital Training; we've been working with modifying courses that are basically taking and meeting the needs of particular constituents. Our number one customer has been OSHA folks, obviously, in the field; states; and the consultation folks.

We've been modifying a lot of fall courses. We did -- obviously this was a new standard -- we did approximately eight fall protection courses for the various states and the organizations that were interested in falls. We worked with Bruce with the RCEC in Chicago, the Brotherhood of Carpenters, with fall protection and fall courses.

We conducted a special pilot program with the New Jersey Troopers -- this is kind of an interesting program, where the New Jersey State Troopers and the Department of Transportation, in conjunction with the laborers and the Parsippany area office, were training officers on accident identification, essentially during their work and working at construction sites and directing and controlling traffic; they also apparently did some inspection work and when they find hazards, they bring it to the attention of the contractors. Apparently that's been working out. They've asked us to do another course for them for training. I believe it's this January. So we're going to train another 30 or 40 people out there.

We've participated in fall protection in a roundtable session with DOE at their annual trade conference, which basically involves almost all of the trades. We participated with them last year. This year, we're working with DOE in another conjunction with the Carpenters on the new scaffolding standard. This is a pretty exciting program for us right now, whereby there's a partnership between the Carpenters, their owners, their contractors, us and DOE. We've got a lot of partners here. Bruce's office, and we're sort of like doing a little pilot on training the trainer on scaffolding's new standard.

We expect to train about 90 to 120 of their people in this consortium, who in turn will probably go out and train, we suspect, around 30,000 of their people on this new standards, which goes into effect at the end of November. That pilot program will be kicked off in Chicago on December 16th.

We've had numerous seminars and participated in numerous seminars and annual conferences throughout the various regions, including the Commonwealth of Puerto Rico, which wasn't bad. It's always a good opportunity to get out there. Chicagoland Construction Safety Council has a, if you're familiar with their conferences in Chicago, it's done annually. We participate and work with them. We work with the Florida Safety and Health Council and the National Safety Council.

Some of the activities -- when we participate with these groups, we usually participate both in the construction safety and health areas. Silica is a big issue this year. We've been working with NIOSH on the kickoff, as the gentleman before me spoke. He came out and was participating with us in the development and the packaging of that silica program.

All our courses have been modified in our construction and health areas to include silica and lead. So they've been updated. I'm pleased to say that all of our courses address those two areas of concern.

We've had numerous seminars and special emphasis classes. As I mentioned earlier, very difficult and the cost is, in some cases, prohibitive, especially last year, because of the travel constraints. It was a lot -- there was a greater demand for us to go out to the regions and bring courses and modify courses and tailor them to their needs and the needs of the offices. We did that in Regions III, IV, VII and IX.

In Las Vegas, Las Vegas was probably the fastest-growing city in the country due to construction. Their projects vary from about -- it's unbelievable -- from about 1.2 to about 2 billion dollars per facility, when we're talking about these casinos. The state was hiring numerous new people and because of that, we provided specialized training for them and their compliance officers. They were one of the few states I think last year that were actually hiring a lot of new people.

We've worked on our statistical analyses. We have a database that we used going back to, I believe, it's 1984 to about 1989 I should say, and then up through '94, I believe. We've looked at causes of injuries and deaths, and we pretty much have updated all our courses with that information and we're targeting.

In the past, we used to issue in our 500 course information about the most commonly cited, and we found that that really wasn't what was injuring people in the workplace. We started focusing on the areas where injuries really were occurring, and now that data is being implemented into all of our courses. We no longer hand out the most commonly cited, even though a lot of the trainers like that, because it makes a nice little, I guess, presentation for their constituents.

For some reason, OSHA always likes to know what we're looking at. Unfortunately, in a lot of cases, what we were looking at was not always what was injuring people. So we're trying to get away from that and we're updating our manuals so that when the trainers go out, they're dealing with issues of importance.

We've done numerous outreach presentations for various groups -- the National Erectors Association, the Ironworkers, the Carpenters. We've worked with most associations -- the AGC being one of them, ASSE. We pretty much get involved with everybody. Because of our limited size, what we try to do is work with as many groups and invite all the groups in as a partnership, and that has been working out.

When we do courses or specialized training, we ask that the host, whoever the host may be, that they invite a balance between labor, management and government people. And it's been working very well. So we get a balanced approach to training in whatever we're doing.

We're developing a course for our internal people. We call it the "209 course." It's more directed towards our senior people on construction, and how to go about participating in keeping up with inspection techniques and how to deal with multi-employer and large work sites. Like I said, we participate and support the national office emphasis on silica. We've updated all our texts to include that.

We've worked with the various groups. I don't know if you're familiar with Builtrite (ph), but we initially were one of the partners in the project safety management. I'm happy to report today that they have trained 9,000 people through that program, and they've asked us to do one more class for them, and we're going to be doing it some time in December, in Philadelphia.

I guess I should mention our reinvention efforts. This year, we're probably going to -- OSHA is looking at rolling out all the offices that have not been rolled out. It's I believe about a two and a half year program, and they're looking -- we've been I guess chartered to do this and to be instrumental in doing the training in rolling out the offices, so that that probably will impact largely on our endeavors in training. That will probably take -- I think we're looking at doing 3 to 5 --

MR. RINGEN: I don't think rolling out is a term everyone knows.

MS. OSORIO: Yes, I don't know --

MR. YPSILANTES: Oh, I'm sorry. Rolling out is reinvention, the new OSHA. Let me explain it. Basically OSHA is looking at changing themselves and internally what they've done is they've set up two distinct teams in an area office, and those teams are trained to work with each other, and they have certain functions. We're there to provide some of that training so that they can become acclimated to the new program and be in line with the rest of the country.

MR. OWEN SMITH: Two distinct teams? What are they?

MR. YPSILANTES: Yes. One is Response and the other is Traditional, I guess --

MR. SWANSON: One is a tactical response team, Owen, to today's needs in the compliance and whatever. The other is a strategic planning to perfect a targeting system that fits that geographic area and the industry mix, for example, that is in that area. What do you think has to be specifically targeted here? Is construction a big thing? Is the meatpacking plant the big thing? And what tools do we have available in this particular area office to better target that? So Omaha's program might differ substantially from what they're doing in Parsippany.

MR. OWEN SMITH: The first one. Response to what?

MR. YPSILANTES: Complaints. Fatalities. To whatever the target is. Basically, as Mr. Swanson pointed out, the strategic team does the developing and the planning, and assists in doing the inspecting, depending on where the needs are, and the response is doing basically the outreach and enforcement activities. They expect to roll these offices out -- the term that I'm using, I'm sorry. Sometimes when you work internally you think everybody understands the terms -- it's a 2-1/2 year program, and that's what we're looking at right now.

Those are essentially the areas that we're working with, and things that we have been doing with the various constituents. Are there any questions on some of our programs? I just tried to summarize some of the things that we've been doing over the last year and a half.

MR. RINGEN: Any questions or comments?

MR. YPSILANTES: The other thing I would like to bring up if there isn't -- Bruce, did you have a question?

MR. SWANSON: Go ahead, finish.

MR. YPSILANTES: The other thing, we're looking at revitalizing and reinstitutionalizing the 502, the update, to the 500 course. In the past, it was a requirement that every three years you had to come back and sort of reauthorize yourself by taking the update course or repeating the 500 course. So that our trainers would be current with the state of the art and the changes that OSHA had acquired during that period.

We were forced to terminate that, because we didn't have the resources to carry that program out. Since then, we have now engaged in a partnership with ed centers. I think most people are familiar with our ed centers -- we now have 12 ed centers -- I can go over their names. There's so many now I have to refer to a list. We're moving right along.

In Region I, we have Keene State College. In Region II, we have Niagra County Community College. In Region III, we have the National Resource Center for the OSHA Training, and by the way, some of these consortiums and I'll point that out as we go along. Region IV is Georgia Tech Research Institute. In Region V, we have a Great Lakes Regional OSHA Training Consortium. In Region V, we have Motor City Education Center. Region V, which is also part of the consortium, the National Safety Education Center.

In Region VI, we have Southwest Education Center. In Region VII, we have Maplewoods Community College. In Region VIII we have the Rocky Mountain Education Center. In Region IX we have the Pacific Coast Training Center, and in Region X we have the University of Washington.

And then the consortiums, Region III has the National Resource Center for the OSHA Training; Region V you have the Great Lakes Regional OSHA Training Consortium. Those are the ed centers, and essentially we have -- we are slowly turning over our private sector courses, predominantly our private sector courses with some other federal agency courses -- to them, to help lighten our load and to broaden our ability to bring courses throughout the country to our various constituents in the private sector.

We presently have about nine courses that they are now teaching through our partnership. Yes.

MS. OSORIO: I'm just wondering how you relate to some of the state plan efforts? I know in Region IX, I'm part of the Health Department as well as the medical school, we actually teach inspectors how to look for various end points and stuff, like blood-borne pathogens and all this. I'm just wondering if that may be a way of maximizing your efforts? That's just one state that I know about. There may be -- I'm sure there's other collaborations in other states, but I'm just wondering how do you overlap with those efforts?

MR. YPSILANTES: I think, you know, we're learning to work with the ed centers. Again, I think it depends on their expertise, and I think where they have the ability to do these things, I think in the future that we'll be expanding the courses. Our whole purpose is to open it up so that we get broader coverage, and try to reach the 6-1/2 million employers that we have in this country, both in construction and in general industry.

We're trying -- what we would like to maybe introduce is we would like to bring this back now, that we have the resources. We believe we have the resources now, to resurrect the update course. I think we're looking at anywhere from three to four years, requiring them to take the course within that timeframe. These are only suggestions.

I think what we're looking for is getting your input and what you feel would be appropriate. We're looking at bringing this course back -- let me look at my notes here and the dates -- at the beginning of 1988, and we're looking for the course -- some of the changes we're looking at, it used to be a week's course. We're looking at maybe doing it for three days, and there are some pluses or minuses, some advantages or disadvantages.

When we went the full week, we did a lot more train the trainer. A lot of the trainers didn't want to take the speech class or go to a school and work on delivery. So we sort of set aside a day and go over training techniques, which a lot of people that were really into the training thought that was beneficial to them.

We're looking at cost and maybe duration. So if we were to cut that out, we'd probably end up with approximately three days. This course is geared more towards policy changes in training and education. It's really keeping up and current with the 500. If we could maybe get some of your comments on that. Obviously the decision won't be made today, but I think we're asking you what do you think about resurrecting it, the duration and how it is to be delivered.

Cost is a factor. The reason why we're thinking of going four years versus three years is that it is a cost to send somebody, mandatory, to take the course for a week. Now that we have more ed centers the cost probably would be a lot cheaper, because the constituents would have a broader base to go to, other than to us. In the past, we rarely took the course on the road; usually did it at the Training Institute, which would require a week's lodging, air plane ticket and some per diem. And then the course used to be free; it will no longer be free. There will be a cost of whatever the rate per hour is.

MR. OWEN SMITH: Which course is this?

MR. YPSILANTES: The OSHA update. Used to be the 502, and we canceled it.

MR. OWEN SMITH: But you haven't determined what that cost will be.

MR. YPSILANTES: Well, the cost is based upon our cost and we divided it into the cost per hour. Like for example, an hour right now from us is $23.22 per contact hour per student. It varies with our cost. This year it actually went down.

MR. OWEN SMITH: So that would be $24 times whatever the hours of the course?

MR. YPSILANTES: That's correct.

MR. RINGEN: But for you, they got a special.

(Laughter)

MR. RINGEN: The one that I've heard in lots of different places, particularly in the last three, four months maybe, or five months, is that the OSHA inspectors out there are becoming better at inspecting construction sites, and I can't help but think that that's the product of both the training that you are doing and also what the Construction office is doing.

Why don't you mention something about these regional coordinators that you have? A breakdown.

MR. SWANSON: I think we've shared with you in the past that each of the ten regional offices has been asked to name someone in their regional offices, the regional administrator's choice as to what level, as a construction coordinator.

The concept was that each region would have somebody that would be your first line of contact to resolve any construction-related issues that are in that particular region, rather than try and reach a regional administrator who 75 percent of the time is in travel status someplace and if he's not or she's not, they're in a meeting. Or to be forced to come into to Washington, DC and use my directorate. If you're on the West Coast or out in the midlands, it's easier to contact your local office.

We have put out, I thought, in every package, but we shorted Knut on his, I thought on every package for the committee, we included a list of who those persons were in each of the regions and the telephone number, and I encourage you to get to them with comments that you want OSHA to hear, or get to them with questions. You don't understand something about what OSHA is doing, and that happens often. I mean I'm glad I got the list of numbers.

If you don't understand what OSHA's doing, call and ask, and if you don't get a satisfactory answer there, call in here and talk to either one of the national office persons that are listed there or myself. But it is -- it was an attempt -- it is an attempt to open up communications between the industry and the regional office, give you a name, hopefully, at some of your regional meetings we'll be able to put a face with it so you get used to talking to somebody, and feel free to contact them.

We are going to this week -- and we haven't been pushing probably as hard as we should have either in the last nine, ten months, but we're going to have a conference call and establish a rhythm, a schedule for construction coordinators meeting at least on the telephone line on a monthly or bimonthly basis, and talk about the problems that we see in various areas of the country and share them and maybe try and get ahead of the curve a little bit.

MR. RINGEN: Do you foresee this kind of person also becoming part of the area offices gradually?

MR. SWANSON: I can't answer that Knut. At the moment, it's kind of like our focused inspection policy that Billy Smith pointed out, all the problems. It's not delivering what it was expected to deliver. If this is successful and if there's more demand for these people's time than can be reasonably met, then we'd say "Hey, let's branch out. Let's push it down into the area office."

But, you know, a lot of these folks right now are kind of like -- I mean this is not their only job. It's collateral duty for absolutely everyone on that list. They have another function in the area office. But as far as their construction coordinator activities, I understand from most of them that they're kind of like Maytag repairman out there. So I don't understand why we'd want to increase it right now.

MR. RINGEN: Well, I think it's been a pretty well-kept secret that these guys are out there. At least I wasn't aware of it. Anybody else? Then maybe you should try to publicize this. We can certainly do it through our newsletters and so on, and I assume other people can as well, and get this information out there. Any other comments or questions? We're right on schedule and we're ready to take a lunch break. We're going to take a lunch break until 1:30. So an hour and ten minutes lunch break and at 1:30 we'll start with the federal procurement requirements.

And as I said before, we're moving those parts that were in the schedule at 10:15 today until tomorrow morning. At that time, we will also have a report on what OSHA and DOE has been planning together from Stu Burkhammer and we'll take up a number of other issues.

(Whereupon, at 12:22 p.m., the meeting was recessed, to reconvene at 1:30 p.m., this same day, Tuesday, November 12, 1996.)

A F T E R N O O N   S E S S I O N
1:30 p.m.

MR. RINGEN: This afternoon, as I said earlier, we are going to begin to deal with something that is a responsibility of this committee, part of the underlying legislation, and that's to review federal procurement requirements. We were interested in doing that for two reasons. One was because of the responsibility and also to see if we can identify some common elements in the way that this is done or perhaps lack of common elements and maybe eventually make some recommendations about how to standardize or strengthen those requirements. It's also long been felt that federal procurement is a strong basis for improving construction safety and health in general in the sense that it has a fairly big marketing packet. So that's what we're going to do.

We're going to start out with -- we have presentations from the Army Corps of Engineers, their Baltimore district office I believe it is, and the Department of Transportation and the General Services Administration. I suggest if Cathey Robertson, Dan Alexander, William Cross and Ron Shansby are here, can you just come up and sit at this table. Identify yourselves.

And if you all don't mind, just stay seated there until we complete all of the presentations, but we will take one presentation at a time, have questions. My suspicion is that -- and we'll start with -- is it Cathey Robertson? Start with you and my suspicion is that there will be questions raised to you that may also be relevant to each of the other participants. So we'll start with your presentation and then we'll have the Department of Transportation and the GSA. We really appreciate very much your taking the time to come here. Thank you.
Review of Federal Procurement Requirements

MS. ROBERTSON: As he said, my name is Cathey Robertson. I'm the Chief of the Policy and Compliance Branch that we have at the Baltimore district, Army Corps of Engineers. I have with me today Mark Iarosis, who is Chief of our Services branch that we have in our Construction Division, and Mark has about 18 years of field experience, of being out monitoring the safety programs with our construction contractors that we have.

MR. RINGEN: What was your last name?

MR. IAROSIS: Iarosis. I-A-R-O-S-I-S.

MR. RINGEN: Okay, thank you.

MS. ROBERTSON: What we gave you is some handouts. In little teeny print, it says "Local clauses construction notes." These are some of our local clauses that we have put into our construction contracts that goes in every construction project that we have. We have a required insurance clause. There we talk about the different types of insurance that the contractors are required to give us. Workers compensation. They have to have $100,000 liability per person that we have.

We've got a clause in there for head protection for hard hats on all of our construction jobs, that contractors are required to keep hard hats on. Then we have a further clause of safety insurance or safety assurances, and that talks about what the contractor's responsibility is and what is requirements are, and talks about the safety meetings, discussions we will have with him during our construction process.

We also have a safety and health requirements manual that we give to every construction contractor for every project, and I've brought two copies of those which I will pass around to you, which you can keep and if you'd like to have additional copies, please let me know and I'll be more than glad to send them to you.

I also included a section, 01110, Safety, Health and Emergency Response. This is the section of our clauses that we put in, our specifications for any hazardous toxic waste projects that we have or underground storage tank projects that we include. These are requirements that the contractor must comply with. Mark.

MR. IAROSIS: On the construction side of the house, we take safety very seriously and we train all our people to act as safety inspectors. So anybody in our Construction Division, and we have close to 300 people in the Construction Division of the Baltimore district; we cover an area of five states; and all of our people are trained in safety and we carry responsibility along with the contractors.

What I've passed out is a list of topics that I'll quickly run through. It says "U.S. Army Corps of Engineers, Safety Process." I'll quickly run through this; if you have any questions, I'll be glad to answer them. On our contractor selection process, when we select a contractor on a RFP type negotiated procurement, safety is one item that we evaluate the contractors on, their ability, their safety record, their experience in managing a safety program.

The FAR clauses that we put into our contract, as Cathey had mentioned, have references to both the EN3851-1 (ph), which is that yellow manual which becomes part of the contract. It also has a reference to the OSHA clauses, the 29 CFR parts 1926 and 1910. So the requirement for safety is there, both on the OSHA side and on the EN3851-1. If you get a chance, look at that manual. It's pretty detailed. It has a lot of information in there, a lot of requirements, many of which are more stringent than OSHA. If the OSHA requirements are stricter than that, of course the OSHA requirements will govern.

MR. RINGEN: What does FAR stand for? Is that Federal Acquisition --

MS. ROBERTSON: Regulation, right.

MR. RINGEN: Regulation.

MR. IAROSIS: We have a requirement for a preaward safety conference. If the contractor has any kind of record that shows that he has some question about his ability to manage a safety program, we'll have a preaward conference with that contractor to get him to explain just how he's corrected his ability to manage safety in the past.

We include additional special clauses which Cathey had mentioned to you, for the hazardous and toxic waste type requirements. If we have any kind of changes to the EN3851-1- in the interim, that manual is processed -- is published every three to five years. So if there's any changes in between manuals, we may put those into the contract as a special clause.

We have a requirement for a preaward safety meeting with the contractor once he's awarded the contract, to go over again his accident prevention plan, which is another requirement, that he has to fill out his procedures and processes for managing safety on that particular job. What we look for is specific information on who has the responsibility to manage safety and how he's going to take safety from soup to nuts, from the beginning to the end of the project.

In specifics, we require the contractor -- we have our core construction managers are all trained in safety. They have a duty to enforce safety. They stop work if there's any kind of incidents that may be hazardous to life or to personal safety. We have a construction policy and procedure in place which stipulates how are people are to act in terms of safety. I do have a copy of that with me if anyone's interested in seeing that.

Contractors on many projects are required to have a safety engineer who is solely dedicated to safety, his only responsibility being safety. Now when do a bidability, constructability review on a new procurement, a new contract, we'll look at that to see if there is a need to have a specific safety engineer for that project. Contracts that are not that complicated, there may be a dual responsibility, where a safety engineer can also do something else.

I mentioned accident prevention plan. We don't let the contractor start the work until we have accepted his accident prevention plan. In that book, the EN3851-1 manual, there's a page in there which actually outlines all the requirements that's necessary to make a safety plan complete. We have a project broken down into what we call definable features of work.

Before the contractor starts, any specific definable feature of work will have him do an accident hazard analysis. That again is outlined in the safety manual. The hazard analysis is something where the contractor will outline the specs on what he's going to do for that particular part of the project, he'll identify what the hazards are, real hazards or potential hazards. They'll also tell us the measures that he'll instigate to be able to preclude that particular hazard from happening. Again, we don't let the contractor start that particular activity until we've accepted his hazard analysis plan.

There's a requirement for a weekly employee toolbox meeting. The contractor must sit down with all his people every week and go over the current safety issues. Everybody signs the minutes of the meeting and the minutes is actually copied and presented to the Corps of Engineers after the meeting is completed.

There's a monthly supervisory meeting, where the contractor gets all his managers and supervisors together and you do a similar type of safety meeting. All of these are requirements in the 3851-1. There's a daily quality control report that the contractor prepares and submits. That quality control report has a specific section for safety, where the quality control engineer or the safety engineer identifies what they did that day in terms of safety.

They also have a quality assurance report from our people that are out there managing the project, to be able to identify what they instructed the contractor in terms of safety. They follow these up at the end of the day or the end of the week to see if there's anything, any trends that are going on. Is the contractor not being cognizant of what we're telling him about safety? Is the contractor identifying safety problems that we're not made aware of? So there's a mutual exchange of information there.

Accident reporting. We have a set procedure for how to report accidents. Anything over $500 in value or in lost time accident is reported on a special type form. That form is sent to our Baltimore district. It's reviewed and analyzed to see just what measures are taken to preclude future accidents of this nature. We also do the OSHA/First Aid report, which is required by the contract.

Contractor evaluations. We have interim evaluations through the course of the contract. There's five main areas that we will evaluate contractors on: safety, timely performance, management, effectiveness of management and my mind went blank. But safety is one of them. There's also this final evaluation.

The interim evaluation. If we identify a contractor as being unsatisfactory, and that interim evaluation carries over to a final evaluation, where the contractor is rated in total as an unsatisfactory contractor on his performance evaluation, it goes into our CCAS system, which we will maintain. On these contractors that are rated as unsatisfactory, they will be prohibited from bidding on future -- being awarded future Corps of Engineers contracts for a period of up to five years. So it's very important that a contractor take safety seriously and maintain a satisfactory or better evaluation.

MS. ROBERTSON: I'm sorry. This CCAS program that Michael's talking about is Corps-wide. We have it out in our office in Portland, Oregon, and it also is available for other agencies to tap into when they're awarding contracts to see what types of problems we might have had with these contractors.

MR. RINGEN: What does CCAS stand for? Do you know?

MS. ROBERTSON: Construction Contract --

MR. IAROSIS: Something system.

MS. ROBERTSON: Support System.

MR. IAROSIS: Appraisal system.

MS. ROBERTSON: Yes. Construction Contract Appraisal Support System.

MR. IAROSIS: We also have ACAS, which is on the architect/designer side, where we evaluate our designers. How well are we doing? I've also passed out two bar charts on our safety stats. I'm not sure which one you have in there, but one shows the trends over the past four fiscal years, as far as the rate versus our standard.

We're basing this on the lost time cases, with a base of 200,000 man hours of exposure. So we've had one lost time accident and we've had in the pool we've had 200,000 man hours of exposure, our rate would come out to be 1. So our current target is 1.11, and the second chart, which shows the four quarters, shows how well we've been doing over the past year. This is something we keep track of every month. We compile it all at the end of the quarter, and we see just how well we're doing on safety. And as we see the trend go up, we take additional measures to try to put us back into the -- or very close to our target.

Something we'll also do is we have other initiatives throughout Baltimore district. We have a large safety program, and we take people from our various area offices, one person from each of our four area office plus the Pentagon office, and we take trips twice a year and visit other area offices and try to exchange information. We do it in a way that we're encouraging feedback of information from one office to the next. It's a way we can recognize contractors for good performance in terms of safety and also it's an education process, where we can educate each other.

I know this has been very quick, but in a nutshell, that's our safety program.

MR. RINGEN: Thank you.

MR. BROWN: I'm sorry. Your first name is Michael?

MR. IAROSIS: Yes.

MR. BROWN: I'm Mark Brown from Washington state. I wanted to ask you a question, going back to the very beginning of your presentation. Did I hear you say that in awarding bids, the Corps of Engineers gives consideration, some kind of a value-added factoring for the performance or injury and illness record, accident record of the bidding contractor?

MR. IAROSIS: There's two types of procurement that we do in general. One is the IFP of formal advertisement, sealed bid type procurement and the other one is a negotiated procurement, which we call RFP process. On the RFP side, negotiated procurement, you may have evaluation factors of which safety is one of those evaluation factors. We do preaward surveys on both scenarios.

On the RFP side, though, we can be more selective about the contractors that are going to be bidding our work. Safety is a primary factor. On the invitation for bid or the formal advertisement, safety is there based on the contractor's previous evaluation. If he was rated unsatisfactory, of course, it would throw him out of the process. If he's a contractor that's borderline, we have cases where maybe that contractor had problems in the past; the FAR clauses 52.236-2011, which sets up the preaward safety conference, would allow us to sit down with that contractor and do a preaward safety conference to see that he's cleaned up his act, so we don't have the same problems on future contracts.

MR. BROWN: So can I try to translate what I heard you say and tell me if I'm wrong, because I don't want to put words in your mouth. Then on the sealed bid approach, what you're saying is their previous history with you could be a disqualifier. But as it relates to more formal, if you will, negotiated RFP part of what you're dealing with, there you might actually have a value, a number associated with their previous performance, plus what they've submitted to you in terms of the infrastructure they're going to build around that project. So you might award them points based on their history and initiative. Is that --

MR. IAROSIS: That's correct.

MR. BROWN: Okay. Thank you.

MR. OWEN SMITH: I have a question. With respect to this 1110, that sounds like that's part of a specification.

MS. ROBERTSON: Yes sir, it is.

MR. OWEN SMITH: Just talking as a taxpayer now, I look here, I see here that -- and I would imagine these are pretty large contracts.

MS. ROBERTSON: Okay. Now this specification will only go to like the Superfund projects like we have --

MR. OWEN SMITH: Oh, Superfund.

MS. ROBERTSON: Right. Where we're going in to clean up spills or something like that. This is not something that goes in every single one of our construction jobs.

MR. OWEN SMITH: Oh, I got you.

MR. IAROSIS: This would be what I refer to as a

-- if you look at my breakdown of the special clauses, special safety requirements, depending on the type of work we do, we may have additional requirements on safety that we want to throw into that particular contract, that may go outside of the EN3851-1, which is our safety bible.

MR. OWEN SMITH: Yes, I see. Because when I looked at this and I saw these individuals and two alternates as safety site officers, and then a physician, I said "Christ, they just added a million dollars to this contract."

MS. ROBERTSON: No. This is just for a Superfund project site. his is the most stringent type of thing that we would have, depending on what the project is. This is not a section that would go into every single one of our construction jobs, and it is based on the complexity of the project, how much work is involved and what the contractor's actually doing. Because if we were just having him going and doing some electrical replacement type thing, maybe $150,000 job, we certainly wouldn't put this section in the contract.

MR. OWEN SMITH: Yes. I saw about this lime disease, and how would that work with a Superfund type job? Under this 3.4, 2.4, biological hazards.

MR. IAROSIS: In some cases, such as Aberdeen that we're doing remediation of large forested areas, those areas may be inhabited by animals -- I'm speculating now -- or whatever that may have a situation where the contractor's employees may be subjected to cases of being -- where they can get lime disease because of the exposure to ticks.

MR. OWEN SMITH: But as a contracting agency, isn't it your responsibility to allow the contractors to know what they might come up against before they bid?

MS. ROBERTSON: And that's why this is in their specifications, so that they can see that's a possibility. We also accord all contractors a site visit, so that they can go out and see the project site, as to where the work's going to be done prior to submitting a bid.

MR. OWEN SMITH: Now how would a contractor know whether or not there are tics and that kind of thing -- I'm a construction guy right, and so I put my hard hat on, if that's what I need, my boots and I'll go out and I'll walk a site. How in the world would I know what you supposedly know if you own the land, about ticks and things of that nature?

MS. ROBERTSON: Well, these would be one of the questions that the contractors would review the specifications prior to obtaining the site visit, and these are things that they could bring up to our representative that takes them around on the project, and he can explain to him and he will go over special requirements that might be involved for the job, in addition to answering any questions that they may have there.

MR. OWEN SMITH: I don't --

MR. IAROSIS: The fact that it's in the specification and it's addressed would waive a yellow flag to the contractor that "Hey, that could be something that I could have exposure to." Going on to other things, as things develop, such as I guess two or three years ago, there was a confined space fatality with government employees in the Philadelphia area, and since then, we have taken our people, trained them in confined space, certified them in confined space.

There's an awareness training and there's also a certification training. We've gone through the steps of training our people and require contractors also to be certified in confined space. When they're about to enter a confined space area, they do it under the auspices of being certified to work in confined space.

So as things develop and we become more aware, I know lime tick disease is something that came about five or six years ago, where it really became prominent and advertised. As those things started to become aware to people, we would put those into our contracts, to be able to forewarn contractors and our people that this was something to consider. So we try to spread information.

One of the things that we do too, and I'm not getting off the subject, is we try to bargain with our contractors, where there's again this exchange of information back and forth, and we're working with the contractor more than just demanding compliance with our specifications. So there's a willingness to perform because of this partnership.

MR. OWEN SMITH: I understand, but you know, if you're going to have a guy do something, to take a core drill and you say "You know what? You can expect to find this kind of soil underneath and you've got this kind of rock and you've got sand, so they kind of know what he's going to deal with." Why would what's laying on the top be any different from what's underneath? Why would it say "Look, you know, we've gone out and looked?" Because otherwise, it seems to me, if I were to read this, and it's a sizeable project, you've got to add another 2 or 3 percent to it and say "I don't know what's out there. I'm not a doctor. I don't know what they've got running around there. I've got to hire a physician to go sample all the weeds and everything. You've got to throw some bucks at it."

MR. IAROSIS: Well, the potential is there. It's a competitive atmosphere. So if a contractor is going to add $2 million for something that there's a slight chance of being exposed to, he's taking a risk not to get that job. If he is cognizant enough that the risk is high, he'll do his research to see if there's really a need to build extra money into that contract. Everything is -- most of our contracts, the majority of our contracts is low bid. The lowest bid contractor will get the work. If we go through the RFP process, where we're evaluating contractors based on all this criteria of which safety is one, he's going to have to be able to not only keep his price down but also support his qualifications.

So there's a balance act there. But contractors who take that risk too seriously there's not -- where there's only a small potential for it, may preclude him from being awarded that contract because his price will be too high. So he's a businessman. He knows how to -- these contractors are smart people, they're businesspeople. They know how to work the system to where they can be able to assess just how much value they should put on that particular cost.

MR. BROWN: Sorry to take so much time on this. We have several billions of dollars of public works that would be undertaken in the next few years in our state. So this is of particular interest to me. We've just passed a regional transit bond issue just last Tuesday. We have a state convention center being built over a freeway. We have a new Mariners baseball stadium being built by a public purpose district and so as Judy can tell you too, we've got billions.

And so we're particularly focused on this, and this is really helpful to me. I want to come back to the second bullet under FAR clauses on your introductory comments, and ask you a specific question. These preaward safety conferences, are those then when you have your bids, both sealed bids and RFPs and it's sort of the qualified-unqualified, all of those that submit qualified bids, are they subjected to this or is it the finalist or what would that look like and who would be in the loop on that?

MS. ROBERTSON: Okay. On the sealed bidding type, which is the IFP, we do not have a preaward safety meeting with the contractor. That's based on the low responsible bidder that just submitted his bid. On the RFP process, which is our negotiated procurement, we could -- it's not a requirement -- we could have a preaward safety conference with them.

A lot of it's going to depend on whether we need to bring them in for negotiations, to sit down and talk to him. If he's brought something out in his qualification statement that he sent in to us, that's something that we would bring to his attention and ask him, talk to him a little bit more about that. And as Mike explained, especially if we've had a history of working with him before or it's in our database that he's got a lot of safety issues, we would definitely bring him in and talk to him about the safety problems.

MR. BROWN: But as far as the sealed bids, then you're saying 52.236-4011 does not apply?

MS. ROBERTSON: Right. That's not in our sealed bid procurement, no.

MR. BROWN: So it's essentially what I hear you saying then is it is an option that more likely than not you exercise for those on the RFP side of awarding contracts?

MS. ROBERTSON: Yes, that's correct.

MR. IAROSIS: This clause will automatically go into our RFP type contracts. There's no stopping it. It goes into our contracts.

MR. BROWN: Thank you.

MR. RINGEN: I think it was Bill Rhoten first and then Bernice.

MR. RHOTEN: Oh, I just have a comment. First, in my other life, I used to put in miking systems and this is the kind of job that I would have liked to put them in on. It's absolutely perfect.

One question is on this comprehensive general liability at $500,000 per occurrence, that means when a person falls off, an ironworker falls off the building and gets killed, he gets a half a million dollars?

MS. ROBERTSON: That's the insurance that the contractor has to have per employee.

MR. RHOTEN: So if the employee gets killed, he gets a half a million dollars?

MS. ROBERTSON: That's his insurance that he's covered, his insurance that he has, the maximum amount that he's got for that.

MR. RHOTEN: For the employee? I don't understand this comprehensive general liability I guess is my question.

MR. IAROSIS: I don't know if we do either. The insurance companies do.

MR. RHOTEN: It says "bodily injury or death," so I guess my question is if there is a death on that job, are they carrying enough insurance that that person that died gets half a million dollars is my question?

MR. SHANSBY: Comprehensive general liability pertains to liability perhaps to the public. Worker's compensation would step in also, I think, with regard to employees of a contractor.

MR. RHOTEN: Well, if workers compensation covers him, then why is this required? That should be on all the job sites.

MR. IAROSIS: Third party.

MR. RHOTEN: So this is for a third party.

MR. RINGEN: Excuse me, Bill. Are you picking him up? Yes. One at a time please, for the court reporter.

MR. RHOTEN: Oh, so this is just if the contractor is sued by a third party, and all the employees are still covered under workers' comp. Okay.

MR. SHANSBY: That's correct, that's correct. We're all learning in the insurance area.

MR. RHOTEN: My next question -- I like the idea. My next question, is this zone covering five states you said? Is that correct?

MS. ROBERTSON: Yes. This is -- our Baltimore district. But I'm pretty sure that all of our Corps of Engineers contracts have this in their contract.

MR. RHOTEN: Oh, so the same program here is throughout the United States?

MS. ROBERTSON: Oh yes sir, yes. We have to have, before we can issue the notice to proceed to the contractors to start doing their construction work, they have to furnish us proper insurance before we will give their notice to proceed, to go ahead and start the job. In addition to the bonds, they have to send in all their insurance certificates.

MR. RHOTEN: Would all the other provisions apply? In other words, is this program you're presenting to us totally across the United States?

MS. ROBERTSON: Yes sir. This is the Corps of Engineers program.

MR. IAROSIS: We're utilized -- the Corps of Engineers has to abide by the Federal Acquisition Regulations. This is one regulation. We can't arbitrarily take this out of our contracts. It's forced in there by law.

MR. RHOTEN: Well, I thank you for that information.

MR. RINGEN: Bernice.

MS. JENKINS: Now as a general contractor, I can attest to everything that Mike said here. We received two competitive bids, and safety was a very important factor in that bidding process. Before we ever started work on that job, we had to present our safety program for that particular site, and the safety officer was a part of the bid. So that was already in the specifications.

We did have to go through all the specific requirements that they had and we still did. So their safety is very important to the Corps.

MR. IAROSIS: We also try to cooperate when OSHA comes out to our projects. We like to work with them and I think we want them to realize that, as I mentioned in my opening remarks, that we consider every one of our personnel to be a safety inspector along with the contractor's safety engineer, and that we try to work with OSHA to be as cooperative as possible, and we encourage a closer working relationship if that's possible.

MR. RINGEN: Ana Maria.

MS. OSORIO: I actually have a question for Bernice. Just following up with what Owen said, did you find the biological agent part of this to be very onerous?

MS. JENKINS: Not on this particular site.

MS. OSORIO: I was trying to get a reality check.

MR. IAROSIS: Again, that would not be in every contract. It just depends on where the site is. We just happen to pull information out of one contract.

MR. RINGEN: The relationship between OSHA and the Corps has been problematic in terms of jurisdiction on a number of sites and continues to be. I was interested to hear that you say that you cooperate with OSHA. I guess that's where OSHA happens to have jurisdiction on the sites.

MR. IAROSIS: On our projects, the door is open for OSHA to come and visit and do whatever they'd like to. I think we would like it to be such that we could have -- I don't want to say notice, but some kind of coordination, so that we could be sure we're there to properly explain and tour the site with OSHA inspectors. For us to pre-warn contractors that OSHA's coming to the site does nothing for us, because we're there every day doing safety and we require the contractor to take safety very seriously. All of our contractors have drawings and I think they still do have the words "Safety First" on the drawings, and that's basically pretty much the truth.

MR. RINGEN: Can you give us copies of the typical prequalification language that you put in your RFPs?

MR. IAROSIS: Yes.

MR. RINGEN: I think that would be helpful. If you can send that to Mr. Swanson here and he can distribute it, because that may --

MS. ROBERTSON: Is that at the same address that Jule had?

MR. RINGEN: Yes. Also you said you had -- I think it was some sort of a manual for construction managers.

MR. IAROSIS: Right.

MS. ROBERTSON: That's that yellow book.

MR. IAROSIS: No. We also had a policy, which I have with me.

MR. RINGEN: Okay. Does that state what the requirements for accident reporting are? Is that in here?

MR. IAROSIS: The requirements for accident reporting are either in the yellow manual or it's something that we lay out with the contractors at the preaward safety conference, which is the safety conference we have right after the award of the contract.

MR. RINGEN: Do you think the information in the CCAS system, is that public information?

MR. IAROSIS: You should be able to get access to that.

MR. RINGEN: Any other questions?

MR. IAROSIS: Now that policy and procedure I just gave you is an update of an old procedure. So what you have there is an unsigned copy, but that lays out all of the procedures. That's in for signing right now.

MR. RINGEN: The final thing, you can either answer it now or later, or you may not have any answer to it. Are there things that you would like to see done better in the procurement that would improve safety and health?

MR. IAROSIS: In terms of safety, there's always things that can be done better. I think a lot of contractors look at safety in terms of how much is it going to cost me. For us to better educate ourselves and contractors in terms of safety, being safety conscious can really save a contractor money, and to put a dollar value on it is something that really should be looked at very seriously, that you don't want to jeopardize the safety and welfare of our workers.

MR. RINGEN: Mark.

MR. BROWN: If I can follow up in terms of questions, and this would be a question for all of you to answer if you could.

If we really put a value on safety, I mean if it's a value, a core value in the context of the project, why don't you have some kind of a system whereby you can actually move just beyond dollars, in terms of lowest responsible qualified bid, and have a factor front end that's either plus or minus depending on their past record? Are there legal or constitutional issues associated with that?

MR. IAROSIS: Maybe I'm going to need to go off on a tangent to your question, but if a contractor is performing poorly in safety, it's going to be identified and he's going to be rated accordingly.

MR. BROWN: Well, what does that mean? I mean if their MOD factor is 1.25. Well, they have an injury and illness rate -- not necessarily injury and illness rate, but they simply have a cost to an insurer that's a 25 percent outlier. Now what does that mean? I mean one very expensive worker comp claim can adjust your MOD factor substantially. It doesn't mean you're a bad employer.

That's why I tend to look more towards reportable injury and illness rates, fatality rates, because those are a little bit more, I think, objective perhaps. So you say you would rate them, but yet you don't give them -- it's not value-added in terms of a formula?

MR. IAROSIS: It's a living process. If you're a contractor -- let me bring it down to basics -- and you're doing things which are unsafe. You have excavations that aren't being protected for people walking near excavations; you have scaffolds without the proper tow boards and rails and things of that nature.

Those things are going to be seen every day, and our people are going to bring those to the attention of your safety engineer, your quality control engineer. They're going to be identified to project managers on a construction site on the contractor's side. If the contractor's not taking action to correct these, irregardless of any accident, he's going to be rated unsatisfactory. Unsatisfactorily.

So you're not going to wait until the end of a project. If you're a contractor and you have an interim unsatisfactory performance rating and that goes in the CCAS, you're not going to be able to bid another Corps of Engineers project and get awarded that project if you're low bidder or not. So it's going to knock you out of the system. So it's to the contractor's benefit to take this seriously, irregardless of accident.

MR. BROWN: You said that that was only -- and I won't ask any more questions. I apologize. You said that's only where you do the RFP approach. Where you do sealed bids, you're not able to put that front end factor in.

MS. ROBERTSON: Well, we pull up for every contractor for the job, whether it's sealed bid or negotiated, we pull up their status out of our CCAS program.

MR. BROWN: Well, you did say that. I'm sorry. That could disqualify them.

MS. ROBERTSON: Right, exactly. That's when we're doing our responsibility check on the contractor. At that point, we could throw him out if he's had bad problems. If he is a small business contractor that we are not going to award to, we do have to go to the Small Business Administration and let them know that, and explain why we're not going to give them a chance, along with the contractor, to give us some rebuttal on that.

MR. BROWN: Do you have something in writing that would show us how you determine the overall safety health record of the bidder? What it is you look at that you may say "unqualified"?

MS. ROBERTSON: Well, it depends on what's in the program. We pull up out of the program. We go in and query the program by the contractor's name and if it shows up in there that he's got satisfactory on all of his Corps jobs that he's had, we will go ahead and award to him. If he's got the unsatisfactory on that specialty safety issue or maybe timeliness is another issue, that's definitely something that we're going to go in and look at him and we will call -- if it's not a project that's within Baltimore, we will call the Corps district and talk with them about what problems that they had, and get some more information. At that point, we'll make the decision whether or not to award and then we'll try to go to someone else.

MR. OWEN SMITH: I have a question -- wouldn't it make more sense if you have a problem with the guy's safety record, not to let him take the plans out to start with and go through the bidding process, rather than allow him to bid and then say -- he's low bidder and you say "You know what? I've been looking back at your record and it's not so good, so we're not going to award."

MS. ROBERTSON: Unfortunately, the federal regulations do not allow us to do that. Unless they have debarred, that's the only reason that they will not get a copy of our specifications.

MR. OWEN SMITH: Well, what's different? You're going to allow him to bid, and then if he's low, you're going to say he can't have the job.

MS. ROBERTSON: The regulations says under our Competition in Contracting Act, we have to allow everybody to bid, unless they've been debarred or suspended. Those are the only two areas that we cannot give a contractor our specifications. Even if they are under investigation but no decision has been reached, they still are afforded the opportunity to submit a bid. In the Corps of Engineers, we charge for all of our plans and specifications, and that's a non-refundable cost. So a contractor, if he knows, especially if he knows that he's been in hot water with us before and we've brought him in for timeliness issues or for safety issues or for his QA inspections, that he's not doing -- or his quality assurance work that he's not doing, you know, he's going to have to think about "Well, do I really go under the Corps again with their stringent requirements that they have, or do I just maybe go and just do some private contracting and not worry about dealing with the Department of Defense?"

MR. RINGEN: Bill.

MR. RHOTEN: Well, so I get it clear in my mind please. If I'm the low bidder and I'm not barred from bidding, so I bid the job and then after I bid the job, you sit me down and say "Well, you can't have the job now because of your past safety record." Is that what I'm hearing?

MS. ROBERTSON: That's correct.

MR. RHOTEN: Okay. How many contractors has this happened to in the last year? Do you have any idea?

MS. ROBERTSON: I would say for safety issues only, none.

MR. RHOTEN: I guess my question is, I know on other issues it's easy enough to say you have laws that would bar a contractor because they aren't competent and all this kind of stuff. But the reality of it is nobody ever voices it because the contractor generally sues whoever says they're not competent, and I'm wondering if this isn't the same situation we're into here, where it looks like and has an effect that it's not really applied. In the last five years, has there been any contractors that have been -- bids turned down that were low?

MS. ROBERTSON: Well, what we would do is if the contractor is a small business contractor, we have to go to the Small Business Administration first. If he's considered a large business contractor, what we would do is write him a letter and tell him why he's not getting the award, and his next step will probably be to protest it.

MR. RHOTEN: Right. I guess back to my original question is, in the last five years, how many times has this actually happened?

MR. IAROSIS: Well, put it this way. We have the factors that we evaluate the contractors by.

MR. RHOTEN: Right.

MR. IAROSIS: Timely performance, quality of work, management, safety and the other one I can't remember. But the contractor is overall unsat. He may have two of those which are unsatisfactory, safety and timeliness. His overall rating may be unsat. He'll be put in the CCAS system, and he will not be able to be awarded a contract for a number of years.

MS. ROBERTSON: But as far as how many times it's happened --

MR. RHOTEN: Right. I guess my question is, how is it applied? It's just like back to the scenario about a competent contractor. I've been in situations throughout my life where I thought contractors were not competent. In fact, nobody in public office would make that decision. I guess my question here is, is there somebody there at the Corps that's actually putting into practice this procedure that you've laid out.

MR. IAROSIS: Well, there's a checklist that we go through before we award a contract. The contractor has problems in safety he's not going to be awarded the contract.

MR. RHOTEN: I think I understand the system. My question is, have you ever used it? In the last five years, has any contractor been told he can't have a job because his record is unsafe? That's my question.

MR. IAROSIS: Put it this way. I don't have the answer to that. But the contractor is in a system from the beginning, and he does put himself in that situation. If we award him a contract and we did something wrong, I think we hurt ourselves.

MR. RHOTEN: Well, I'm not raising this issue to be political. I love your plan, but again I go back to this. If the system isn't utilized, the only see it has is maybe a psychological deterrent to a contractor. But the fact of the matter is if you haven't utilized this tool, then that's all it is.

MS. ROBERTSON: I don't know of any in the last year that we have thrown out just because of safety issues.

MR. RHOTEN: Right, yes.

MS. ROBERTSON: It might have been --

MR. RHOTEN: In the last five years, have any been thrown out?

MS. ROBERTSON: I don't know the answer to that, but we do go through -- every contractor we have, that's one of our requirements, is to check that system.

MR. RHOTEN: And again, I'm not raising this issue to criticize your program.

MR. IAROSIS: When we get a contractor who is poor on safety, he's poor on other matters too. So they'll be an overall rating of unsatisfactory.

MR. RHOTEN: In all my experiences, I've never seen anybody take on a contractor for not being competent, although it's been in the law for years, because nobody wants that grief.

MS. ROBERTSON: Moreso now we're doing them on bad performance on the job, timeliness, and that's something that we --

MR. RHOTEN: You can throw them off a job when they're on it?

MS. ROBERTSON: Well, we even go as far as trying to get them debarred if they have a record of doing bad performance on a project. I mean it's a long process for us to do that, but we have processed that paperwork before.

MR. RHOTEN: Thank you.

MR. RINGEN: Bob Masterson.

MR. MASTERSON: If I'm hearing this correctly, and I may not be, it sounds to me like you evaluate the safety performance but you really don't have measurable objective criteria to use. It's more of a subjective process.

MR. IAROSIS: Through the course of a contract? There's a --

MR. MASTERSON: No. Prior to the awarding of the contract. If you're looking back on the past performance.

MR. IAROSIS: Well, if you go back to this preaward safety conference, the FAR clause that's the outline here, that refers to a contractor's record of accidents over the past years. If he has a history of accidents over the past years that would require this preaward conference to be held, then we hold the conference. So we're looking at a contractor's past record of safety as being measurable. How many accidents did he have in the past years.

MR. MASTERSON: Okay, but that was only on your negotiating process, correct?

MR. IAROSIS: That's correct.

MR. MASTERSON: Your sealed bid, the person or the contractor could be knocked out because they had poor safety performance in their history. But it doesn't appear that you have any measurable systems to establish whether or not they have a poor track record.

MS. ROBERTSON: Well, one of the things that we would do is if they've only had safety as an unsatisfactory rating, safety only on their past five jobs, we would bring them in and talk to them. If they have had safety and other issues on their last five jobs, we would definitely try and decide whether or not we really want to award to them, and work with it from there.

We don't do this on an arbitrary basis. We also get our office counsel involved and our attorney sits down with us and decide, you know, which way on these projects we should go. So they have our -- our attorneys have a lot of input, because if it is protested or we do get a problem on the project, they're the ones that are going to have to be working on it with us.

MR. MASTERSON: And again, what I'm still not hearing --

MS. ROBERTSON: But we don't a measurable, any set thing like if you've had three in the last year, you know you're not going to get an award. No. It's based on their history and the type of work it is. If it's a small dollar job, we might just stay on them a lot more and go ahead and award the contract. If it's a larger dollar job, depending on especially who our customer is, you know, if it's especially something like one of our secret offices that we have to work for, we might just throw them out.

So there are a lot of factors in there that we consider, but as far as a set something in stone or regulation, no. We don't do that.

MR. MASTERSON: So I guess what I'm hearing you say is --

MS. ROBERTSON: Subjective.

MR. MASTERSON: --in the end, it boils down to one group of people's opinion, but there's nothing that you can give a contractor up front that they could use to say as long as I follow these, I don't have to worry about that issue.

MS. ROBERTSON: Well, if it's a negotiated procurement that we have, we will outline that in the technical spec or in the areas of the technical evaluation, as to what exactly we're looking for. These are your minimum requirements. If you don't meet this, we're basically telling them don't even submit a bid, because this is something that you will get thrown out on.

MR. RINGEN: That's in the RFP?

MS. ROBERTSON: Yes sir.

MR. RINGEN: That's the language we're looking for.

MS. ROBERTSON: Right, okay.

MR. RINGEN: On these charts that you have, where you state the Corps goal, why does that change from time to time?

MR. IAROSIS: I'm not sure who changes the goal. That's something we get out of our headquarters here in Washington, where they look at overall Corps of Engineer ratings and how well we're doing on safety, and the safety office is an overall safety office here in our headquarters that makes that determination.

But you can see, right now being 1.31, that's 1.31 lost time cases. So it's 1-1/3 accidents over 200,000 hours.

MR. RINGEN: Well, that's the rate. That's the actual rate on your jobs?

MR. IAROSIS: That's what we have right now.

MR. RINGEN: The goal is 1.1, right?

MR. IAROSIS: Right. So we're striving to meet a pretty tight goal, and we vary up and down based on that.

MR. RINGEN: But in the first quarter, it was 0.95 or something like that?

MR. IAROSIS: The goal was, yes.

MR. RINGEN: I wonder if that's because you have a different mix of projects out there, some which may -- like more tunneling than --

MR. IAROSIS: I'm not sure how we -- I knew I was going to come. I just found out late Friday that I was going to be here, and I quickly gathered information and this is something that we had as far as things that we track ourselves. So I don't have all the information to explain this, but I thought it would be interesting for you to see just what our rates are.

MS. ROBERTSON: I can get that information for you.

MR. RINGEN: That would be great. Actually, the head office is only two blocks from here, as you know, where they calculate these things.

MS. ROBERTSON: I'll call them tomorrow.

MR. RHOTEN: Do that during the coffee break.

(Laughter)

MR. RINGEN: It's like 50 Massachusetts Avenue. Okay. We will continue with the Department of Transportation, Mr. Alexander. Again, thank you for taking the time to come.

MR. CROSS: Oh, except I'm not Mr. Alexander. He didn't take the time to come. I'm Bill Cross. Dan was unable to make it this afternoon.

MR. RINGEN: Thank Alexander for his intent.

MR. CROSS: Yes. I realized while I was sitting here I have two handouts that were not particularly well identified, so the first one is just bullets for the ACCSH meeting, 11/12 and the second one is some administrative instructions we provide to our own people. It starts out with 6-8 Construction Safety. So those are my handouts. I'm a construction engineer for the Federal Lands part of the Federal Highway Administration.

The Federal Highway Administration is predominantly a grant program. However, we do have about a 200 to 250 million dollar highway and bridge construction program. It's disbursed across the whole country, mostly for roads and bridges on federal lands. For example, the National Park Service and other federal agencies in the West as well.

We're pretty small potatoes because of that, compared to the Corps. Some of our contracts are less than $500,000. Typically, they're less than $5 million, although we do have a few that are larger than that. We have the standard FAR clause, 52.236-13 in all of our contracts. We have three contracting offices that are fairly autonomous. There's a small headquarters that I'm a part of.

There are the offices in the West and the two offices in the West typically use the Alternate 1 version of that clause that requires a written safety plan and I think there's a couple of other requirements that the office of the East typically does not use that Alternate 1 clause.

Most of our jobs involve the accommodation of public traffic during construction. Quite often, it's right through the middle of a construction site. So separating contractor employees and public traffic and our own employees from the public traffic is a big emphasis area for the Federal Highway Administration, both with respect to this program and state programs as well. There's a growing problem of highway workers being involved in accidents involving public traffic. So we have a lot of special requirements dealing with that issue that are not in our contracts with respect to other contractor employee safety issues.

We have standards for, for example, concrete movable barriers, vehicle attenuators. Even in the last few years we've been experimenting with intrusion alarms for work sites. Some of these initiatives have gotten to the point that they're contract requirements; others are more experimental. But we do have quite an extensive program dealing with the issue of contractor and highway department worker safety.

As far as our own role during contract administration, we have kind of drifted back and forth over the years. Back even before OSHA we had our own safety manual and safety standards for contractor safety. After OSHA came into being around 1970 or '72 or so, we kind of deferred to OSHA but we still had a lot of resources committed to contractor safety.

We've always had kind of a legal and a philosophical problem in that the more aggressive we are in administering safety, the less aggressive contractors tend to be. They tend to depend on the government employees that are on site. In other words, for us to be the safety officers, do the inspections, etcetera.

So with our own cutbacks in the 80's, so we're out in the boonies somewhere with maybe one or two government employees on site with a construction contractor, in recent years we've put more emphasis on the process, to start off the job with the contractor explaining to us what their safety program was, who's responsible, and then just to keep our eyes open in the course of our normal inspection, and if there are indicators that we have safety problems, to bring the contractor back in, saying you've got to relook at your process. You've got these problems, etcetera, rather than for us to be performing weekly inspections or for us to be requiring specific actions on the part of the contractor that might ultimately cause them to in effect depend on us.

So I don't have source selection in my notes. I should go back and say I kind of agree with the Corps. Most of our jobs are sealed bid. We do not have specific safety requirements for determinations of responsibility. Once in a great while we will use two step sealed bid, and I had the experience at least one large contract, where we required specific workman's comp multiplier, I think it is the correct term, as a part of the first step of the sealed bid process.

So contractors that did not meet that minimum requirement, and I can't remember what it was, were in effect precluded from bidding on the second step of the sealed bid process. Although I think that doing it that way goes a little bit beyond what the FAR says the two step process is supposed to be used for. It's supposed to be a technical proposal, not just a prequalification or screening process.

To get back to vehicular safety, the manual on Uniform Traffic Control Devices, which is a highway industry publication, is cited in the 1926.200 of the OSHA regs as setting the standard for traffic control devices. There is a glitch in that cite, in that it cites the 1971 version and we're up to 1989, I think, is the current version. There have been a number of changes over the years and we would certainly like to see OSHA just drop the date and just refer to the current version of that manual.

That is cited for the standards for the devices themselves, the colors of signs and the configuration and things like that. The actual matter --

MR. RINGEN: This is 1926.200 standard that you just referred to?

MR. CROSS: Footnote 1 at the bottom of these notes, 1926.200(g)(2), and the standard is ANSI D6.1-1971. I think if it just said the current version of ANSI D6.1, that would suffice and it would solve that problem. I'm told that there's actually been OSHA inspectors that have cited contractors, for example, the color of safety vests, which in 1971 I think only one color was permitted and now there are alternate colors. It sounds trivial but if you're a contractor and you get a cite for it and you think you've got the standard right --

MR. JONES: The current enforcement policy is that where ANSI compliance, we'll call it that, will provide equivalent protection to compliance with the letter of the OSHA standard, compliance officers are not supposed to cite the letter of the standard. They're supposed to look for equivalency as far as that goes. So as far as that question of this particular vest color, that shouldn't have been cited. If it was in compliance with a previous ANSI standard that provides equivalent protection to what would be provided if you were using a subsequent ANSI standard or the current standard.

MR. CROSS: Okay.

MR. RINGEN: That's the solicitor's response.

MR. JONES: And actually, I think we're cleaning up those obsolete references in the standards to out of date ANSI standards also.

MR. CROSS: I talked to a guy when I knew I was coming over here, I talked to our safety specialist that had been most involved with OSHA issues in the past, and he had been involved -- he had this one example, and he said experience was that some OSHA regions had gotten specific instructions dealing with this issue, and others were unaware of it.

So he thought if it weren't in the regs to start with, the that problem would kind of go away. But if it is in the regs, it's been -- the communication with the field has been somewhat spotty.

Okay, to get to our administrative guidelines, we typically have a preconstruction conference. In fact, it's required by the FAR for all of our contracts. Safety is one of the issues discussed at the preconstruction conference. This 6.8 Construction Safety is kind of our instructions to our field personnel, even if there's only one or two on site, on how to start off the job dealing with safety issues, to discuss the requirements of the contract.

We talk about avoiding the kind of day to day intervention in contractor safety that I alluded to earlier, but we do talk about high risk situations where we feel that we have no choice but to intervene and shut all or part of the job down if there are situations that are so dangerous that they have to be resolved immediately.

On page 6-11 and 6-12, we talk about five general issues involving high risk situations that might fall under that category. We have on page 6-13 an outline of a contractor's safety plan for contractors that don't know what we're talking about if we ask for a safety plan, and it kind of deals with 18 or 20 or so issues that a safety plan might address.

We also have examples of if you have isolated or chronic safety problems, how to put the contractor on notice and deal with possible shutdown or resolving those kinds of problems. On page 6-17, which is a one-page summary of the OSHA trenching and excavation requirements, that we developed right after they came out, I think in 1989 or 1990. It kind of summarizes that, which I think at 1926 takes up about ten pages or so with a lot of diagrams. But this condenses it on one page.

I should also say, getting back to the vehicular safety issue, our industry has what's called the TRB or Transportation Research Board meetings in January every year here in Washington, and typically at least one of those half day sessions -- they're divided up into subgroups.

There are like dozens of sessions going on at once, but at least one of them every year is devoted to worker safety with respect to research and initiatives that have been going on in the industry. Mostly state highway departments, but other people involved in the industry do the same.

I have a reference to that and a number to call in my notes. But other than that, I don't think I have anything else. So if you have any questions.

MR. RINGEN: We've been working with the Highway Administration in two areas. One was the fatalities and injuries in highway work zones, where I think we did some of the first research and it just happened that we were looking for asbestos-related deaths in the death records of unions and we found in the laborer's union a huge number of workers who were being killed while they were in work zones. That came as a great surprise.

I think that's an area where you as a owner, construction owner, has made a very, very significant difference, by getting the states also who are grantees in your program to make lots of changes.

MR. CROSS: The concrete barriers, the movable concrete barriers which was an industry, a private sector initiative, but you see it used more and more frequently now. That is an effective way even for short durations to separate the work zone from the public traffic.

MR. RINGEN: Right. Another area that we've been working with you on has been on the lead paint, where again contract specifications have been developed that you are applying and getting more and more of the states to apply to protect workers during paint operations and repair operations on these bridges. It seems to me at least, based on the limited knowledge that I have, that there's lots of things that you can do in the procurement process to improve safety and health.

Both you and the Corps people said that when you're involved in sealed bid solicitations, I guess is what it's called, the FAR regulations limit very much what you can specify in the solicitation. But isn't it always a gray area between an RFP and a solicitation for a sealed bid, about what can go there? There are always, in any kind of solicitation, some specifications of some kind or another, even in sealed bids, right?

MR. CROSS: Yes. I'd say that first of all, our agency is so small we have none of our own regulations. We're relying totally on the FAR, the general FAR that is applicable to all civilian agencies. The procurement regulations in general are kind of -- have always been a battle between the procurement people who want to provide access to as many contractors as possible and to not exclude people from the marketplace, and people that are interesting in quality or quality-like issues like safety, that want to limit their pool of people they do business with, the people that they think can meet those requirements.

So this issue is not, in my view, not really resolved. There's always -- it's very difficult for an agency to debar a company for non-criminal activities, just because they don't have, for example, a good safety record or don't have a good quality control record or good management practices. The courts in my -- I'm not an attorney, but my understanding is the courts have said "Well, you can do it for one job or two jobs," but if you start doing it every single job, telling this guy he can't bid your work, that is in effect a debarment and you have to go through the debarment process to make that stick.

MR. RINGEN: Any other questions? Thank you. Finally, the GSA and Ron Shansby. Thank you for taking the time.

MR. SHANSBY: Good afternoon. Thank you very much for the opportunity to speak before you. In summary, I guess what I would like to say is that my esteemed colleagues have presented basically the entire picture of safety programs of the national agencies. We are all bound, we all have the same skeleton, same skeletal requirements -- regulations, public law, OSHA, all of those things.

As far as achieving safety on our construction projects, there is a lot that goes beyond the law, however. GSA is involved as a major provider of office buildings and the like to the other agencies of the federal government. In fact, I believe you might say that GSA has authorized those other non-military agencies to do whatever construction they may be doing.

I forget what our budget is, it is in the hundreds of millions. On our major construction projects, the large dollar value construction projects, we do some negotiations. The primary method of procuring services, though, is by sealed bid. How we achieve our success in the safety area depends more on the muscle and the sinew than the skeleton.

You might say our program is divided into two or three areas. We of course have the administrative area and a significant portion there for the benefit of third parties and contractor personnel are insurance aspects and worker's compensation requirements.

A very important administrative aspect for ensuring success in the safety program though is the vigorousness of our inspection program, the enforcement of the safety requirements. We start every early in the project life cycle and say if we have complex projects, we will have prebid, preoffer type meetings, where we will discuss a lot of things and safety may well be among those things discussed.

After the award is made, we have our preconstruction conferences like the other agencies, where we emphasize safety. In fact, we have frequently used to safety experts from the government in our meetings to highlight the requirements. My own background is in general engineering, in procurement with a flavor of law. I've been general engineer on construction projects. I have been for a few years, and also been deeply involved in the establishment of procurement policy and have touched on the safety area at times.

One of our biggest tools in the administrative area, one of our biggest weapons I should say, is the stop work order. If in fact we recognize serious conditions that are a threat to life and limb, we are authorized to stop the work. If there's a question, we should proceed to stop the work rather than take the chance that there would be severe injury.

Another aspect of our program is the technical aspect, the specifications, not just demonstrating to the contractor that we intend to enforce the various safety and health requirements, but also requirements for having to do with what to do if certain substances are discovered on the project site. Our buildings, our program is primarily construction and interior renovation.

Consequently, the elements of asbestos and PCBs are very serious safety hazards. Although I believe we have taken care of virtually all of the PCBs in the federal buildings, those are oil-like substances that were used in our transformers, we still have some residual asbestos and we have requirements in our specifications wherever these conditions are likely to exist, as to how to handle asbestos.

Probably one of the most significant means of achieving success, however, is not through our regulations. It's through the payback that the contractor has facing him if he violates good safety procedures. Not only will he have increased project costs, which he will have to swallow himself, he will also have insurance paybacks. Poor performance will result in higher insurance rates.

As an aside in this area, I'm involved in a study with the agency and the National Institute of Building Sciences, wherein we are evaluating the possibility of using owner controlled insurance programs. These are programs whereby the government or the construction manager representing the government, would buy all of the insurance, and this would apply all of the contractor personnel, the subcontractors, the prime contractor as well.

In obtaining this type of insurance program, it is essential that safety programs be given great weight, because our rates, the dollar costs to us and ultimately to the contractor, are affected by safety performance. There have been a couple of pilot projects -- Boston Courthouse is one -- wherein this method has been used, and the savings that are available are rather large, rather significant in terms of percentages.

This is the essence of our program, and while we have a lot of -- I have a lot of detailed information, it tracks essentially what the other agencies have pointed out. If you have any questions, I would be glad to answer.

MR. RINGEN: Mark.

MR. BROWN: I was happy to see for the Army Corps of Engineers apparently a nationwide goal relative to injury and illness rates. Do you have a similar goal in asking that question? You mentioned this is how we achieve our success in the field of safety. But how do you define success and how do you measure your performance over time?

MR. SHANSBY: Certainly our goal is accident free, but as far as discrete figures, our goal, I don't have any knowledge of that at this point.

MR. BROWN: So how -- well, you indicated you sort of dittoed to the presentations that preceded you, so you do specifically look at a bidder's previous safety and health record with you, with other governmental agencies or at all in the context of evaluating their bid, and do you also have specific safety requirements that have to be built into the bid specs that they send to you?

MR. SHANSBY: Two parts to your question. The first part has to do with contracting responsibility. To answer it right off, I don't know of an instance where a contractor has been debarred, either in the legal sense or generic sense, from participating in our procurement program because of severe safety violations. It's a theoretical possibility that a contractor could be debarred because of that. That's in the sealed bid area. The responsibility is essentially the only way we can evaluate the ability of the contractor to execute your project safely and to have sufficient funds, insurance and all sorts of things like that.

MR. RINGEN: Can you talk a little more into the microphone?

MR. SHANSBY: In the sealed bid area, what we generally evaluate is responsibility and the primary area of responsibility is financial and fiscal responsibility. Past performance does come in very generally. The Federal Acquisition Regulation basically requires that we always consider past performance in our contracts, whether it's a sealed bid or a negotiated procurement.

But unless contractors' past performance is terrible, he remains on the rolls. Totally unacceptable. We have to take the proper steps in order to disqualify contractors, and that is suspension or debarment. In the negotiated contract area, we can evaluate and do evaluate past performance. It's a very, very important factor. Safety undoubtedly would be a significant portion of past performance.

I forgot the second part of your question.

MR. BROWN: Well, I'll just make this observation. I think of all that I've heard and it's all been excellent, this is probably the most meaningful to me as a member of this committee because it's that old notion, if you don't know where you're going any path will get you there. Well, the Corps has many paths, but they have a goal. They have a strategic objective. They share that with their contractors. They want to move to, I think they said 1.111 is the target.

I mean that's extremely important to go in, I think, at the front end and say this is the expectation we have. We don't want you to skew these numbers up. We'd like you to bring us in under, and so the contractors that do business with them know what's expected of them in terms of frequency of accident. I really think that this ought to be a model for the rest of the federal procurement agencies. If the contractors don't know, if you don't know, then it's going to be kind of hard to hold anyone accountable.

This by itself is a major, I think, indicator of performance. And again, I'd recommend it to you and also to DOT, to consider setting a national standard for what it is you expect of your contractors by way of accident records.

MR. RINGEN: Mark, we've been arguing about benchmarking in this industry for quite some time, and there has been a reluctance that I don't understand on the part of just about everybody to say "This is the level of performance that we expect." We have the Corps of Engineers, we have the members of the Construction Industry Institute. We have all the members of the National Constructors Association. All of these different groups are currently performing at a level that's 80 percent below the average reported BLS rate for lost time injuries in the U.S. Yet nobody seems to be willing to go below the BLS rate as sort of the benchmark that they expect people to perform with.

MR. BROWN: But even in this context, though, if you think about what they have here, and I wonder how many public agencies could do this? I don't know that I could go back to the state of Washington and get this from either my State Department of Transportation or my state general administration agency, but at least with the Corps, they know how they're doing. I should say, they know how their contractors are doing. They have a baseline here.

This goes back to 1993. Clearly they can see if they're moving to an outlier stage, like they were back in federal year '94. I guess you actually have -- I don't know what this USACE goal -- that's the goal for the system. But I mean this, I think, is a pretty good model. At least we've got a baseline to look at over time.

MR. RINGEN: Absolutely, and it's the one that we modeled some recommendations on more or less. And for the large projects that you're talking about in Washington state, there should be absolutely no reason why you couldn't essentially use the same goal or benchmark for the projects.

But I've been involved recently in some of these owner-controlled insurance programs, and there you get the insurance, the underwriter, very reluctant in agreeing to go along with any kind of specific performance goals. If we set performance requirements here beyond certain levels, we can get in big-time owners and we as owners shouldn't do this, in part because also it could restrict, I think what you said -- restrict the ability of some people to bid on the jobs.

But it's clear that we have the ability statistically to set stringent, what most people in the industry would say are very stringent goals, that any qualified contractor ought to be able to comply with if they're doing their job right.

MR. IAROSIS: This is just one district out of thirty-some districts that the Corps has, so we're only looking at one small area.

MR. RINGEN: In fact there is a useful document -- I don't know if you're familiar with it, Mark, that Bruce brought in here, which is actually from an analysis of the lost time injuries in the Army Corps of Engineers' database that provides a lot of the sort of underpinning for this.

MR. RHOTEN: I've just got one more question. Could you give me a ballpark figure on what percentage of the jobs are negotiated as opposed to bid in the agencies?

MS. ROBERTSON: Construction jobs?

MR. RHOTEN: In dollar value.

MS. ROBERTSON: Oh, dollar value.

MR. RINGEN: The microphone, please.

MR. RHOTEN: That's an unfair question to shoot at, since I wouldn't be surprised if you have --

MR. IAROSIS: We're going more and more into negotiated procurement, and as customers are looking at tighter timeframes and are being more scrutinizing more on qualifications of contractors to do that specific kind of work, the trend is more and more.

Overseas procurement is mostly negotiated. In the states here, the majority of our procurement is the formal bid type, IFP. But like I was overseas for the past 14 years. I came back in 1994, and since I've been back, we've been going more and more into the RFP process, but the majority of our work still is sealed bid. The trend is to go further to the negotiated procurement.

MS. ROBERTSON: The Corps has also been traditionally for fixed price contracts, and we're going more into the cost plus award fee, cost plus fixed fee contracts too. So that's another trend that we're moving toward doing now.

MR. RINGEN: Any other questions? I have one final question, in the sense that this committee is supposed to be reviewing these kinds of activities. Is there anything that you can suggest that we should look at further? Is there anything, any kind of assistance that we could provide maybe in improving the requirements and so on? Should we make any recommendations?

(No response.)

MR. RINGEN: Okay. Well, thank you all very much for taking the time to come here today. We appreciate it. That completes our agenda today, unless there are any comments from the public who are here. We will adjourn early and we will start again tomorrow morning at 9:00 a.m. here.

I think just to remind you the agenda for tomorrow morning is we'll start out with the regulatory presentations that we left off, that we didn't cover today. We will have a report from Stu Burkhammer about the OSHA-DOE committee. We will then talk about what the committee should be doing in the future.

We will have Joe Dear come here at 11:00 instead of 11:15 tomorrow. Since he will be here at 11:00, I expect that we'll be able to probably complete our discussions by noon, and certainly no later than the 12:30 that's on the agenda. Again, thank you all very much for coming today. I look forward to seeing you tomorrow.

(Whereupon, at 3:00 p.m., the meeting was recessed, to reconvene on Wednesday, November 13, 1996 at 9:00 a.m.)

REPORTER'S CERTIFICATE
TITLE: ACCSH

DATE: November 12, 1996

LOCATION: Washington, D.C.

This is to certify that the attached proceedings before the United States Department of Labor, were held according to the record and that this is the original, complete, true and accurate transcript which has been compared to the reporting or recording accomplished at this hearing.

BAYLEY REPORTING, INC. November 12, 1996