If you are a construction contractor and not familiar with the U.S. Army Corps of Engineers' Safety and Health Requirements Manual EM 385-1-1, you could find yourself in a heap of trouble on Department of Defense (DoD) construction projects, especially if a contracting officer or project manager deems your noncomformance with specific provisions of EM 385 to be contract violations and stops your work until the deficiencies can be corrected. And then, in accordance with the provisions of the contract, penalizes you $2,000 a day for being a week late in completing the job. Much time, aggravation and money could have been saved if you had initially met the requirements of EM 385.
Most government contracts incorporate by reference a number of federal acquisition regulation (FAR) clauses that describe a variety of routine requirements. The clause that is most significant with respect to construction safety is FAR clause 52.236-13(c), which states that "if this contract is for construction or dismantling, demolition or removal of improvements with any Department of Defense agency or component, the contractor shall comply with all pertinent provisions of the latest version U.S. Army Corps of Engineers Safety and Health Requirements Manual EM 385-1-1 in effect on the date of the solicitation."
Some Defense Department agencies may even reject your bid as being invalid if, upon request, you do not submit a written site-specific accident prevention plan that meets the requirements specified by EM 385. Although many of the technical requirements of EM 385 closely parallel OSHA's construction standards in 29 CFR 1926, there are some significant differences. While the OSHA standards say little about safety management, EM 385 addresses this issue in some detail. In that light, two requirements of EM 385 that are particularly noteworthy are the requirements for a written, site-specific accident prevention plan, and the need to perform detailed activity hazard analyses that identify potential hazards posed by each phase of a construction project and identify the precautions the contractor will take to control those hazards.
In requiring contractors to abide by EM 385, the Defense Department is not assuming responsibility for ensuring the protection of construction workers. That responsibility rests clearly on the employee's employer, as evidenced by section 5(a)(1) of the OSH Act.
Although the Defense Department certainly does not want to see construction workers killed or injured at its construction sites, its interest in contractor safety focuses primarily on protecting its facilities and employees from hazards posed by contractors that might adversely affect an agency's personnel, facilities or mission, and, in some extreme situations, even compromise national security.
For example, while it might sound like something out of a Tom Clancy thriller, there could be catastrophic consequences if the Joint Chiefs of Staff, on the verge of finalizing orders that will prevent al Qaeda operatives from launching an imminent attack against U.S. interests, has to evacuate the Pentagon as a result of a fire started by a shower of sparks from a contractor's cutting torch. Or, while not as life-threatening and perhaps more likely, a contractor working above a drop ceiling accidentally shears off a sprinkler head and the resulting deluge damages hundreds of thousands of dollars worth of specialized equipment used to make classified electronic microchips used to encrypt top secret military messages.
Written Accident Prevention Plan
Perhaps the most sweeping provision of EM 385 is the requirement for a written job-specific accident prevention plan. A reprint of the minimum basic outline for this plan is provided above. The title of this document is very revealing. Notice that it is an accident prevention plan; in other words, it is a written plan that explains how a contractor intends to prevent accidents from occurring on a specific construction project. This requirement reflects a well-known safety axiom, that accidents just don't happen they are caused and identifying and controlling these potential causes will prevent mishaps from occurring.
The accident prevention plan required by EM 385 is not some vague, generic document typical of many construction companies that lists general safety rules such as prohibiting horseplay, or possession of firearms, alcoholic beverages or illicit drugs on the job, and mandatory wearing of long-sleeved shirts, hard hats and safety glasses. Rather, it must be a detailed, site-specific written plan that describes the management processes that will be used to prevent accidents from occurring on a specific construction project.
For example, note that element 12 of the plan requires that a wide range of management plans and programs be implemented, including a program for prevention of alcohol and drug abuse. Unlike OSHA requirements, EM 385 requires that company officials responsible for specific aspects of the plan be identified. For example, note that element 1, the signature sheet, requires the title, signature and phone number of the person who prepared the plan, the person who approved the plan and any individuals who concurred with the plan. Such information would allow DoD contracting officers, project managers or safety specialists to identify specific company personnel that could answer questions concerning the plan or, more importantly, discuss problems concerning its implementation.
Element 1 also requires that a certified safety professional or certified industrial hygienist approve plans related to hazardous, toxic and radioactive waste activities. Element 7, safety and health inspections, must specify who will perform job-site inspections and explain how the inspection findings will be documented, how deficiencies will be tracked and how follow-up inspections wil be conducted.
Similarly, element 9, accident reporting, must address who, how and when information will be provided on exposure data such as manhours worked that can be used to evaluate safety performance, how major accidents will be reported, who will conduct accident investigations, and how and when reports and logs will be completed. Since the information must be job-specific, vague generic safety and health programs will not meet the job-specific requirements of EM 385.
Over the past three decades, I have reviewed dozens of written safety programs and cannot recall one that provided the degree of job-specific detail required by EM 385. Many programs that I looked at were little more than a regurgitation of the OSHA standards. Some were obvious shams apparently intended to be evaluated on the basis of their weight rather than their content. In one case, a cover page bearing the company's logo and the words "Safety Program" in large bold type was stapled over the cover of a copy of 29 CFR 1926.
Activity Hazard Analysis
If the accident prevention plan is viewed as the strategic guide for accident prevention, activity hazard analysis might be seen as the tactical guide. Section 01.A.09 states that "activity hazard analyses shall be prepared by the contractors performing the work activity."
Section 01.A.09 further stipulates that "analyses will define the activity being performed and identify the sequences of work, the specific hazards anticipated and the control measures to be implemented to eliminate or reduce each hazard to an acceptable level." The manual even includes a form that can be used to assist contractors in documenting their hazard analyses.
If those welders in the Pentagon had performed such an analysis, they may have removed or protected the combustible material from being exposed to flying sparks and had portable extinguishers and employees who were trained how to use them. The al Qaeda cell would have been neutralized.
Is that a far-fetched scenario? Perhaps, but two years ago, so would the thought of two airplanes being flown deliberately into occupied buildings. Activity hazard analysis requires contractors to be proactive in aggressively identifying hazards that can be anticipated and controlling them rather than looking back with 20/20 hindsight.
EM 385 vs. OSHA Requirements
Many of the technical requirements of EM 385 mirror those in 29 CFR 1926. For example, both require that scaffolds be plumb, level, fully planked and provided with guard rails. Both require that flexible electrical cords be a type approved for hard service use. Both require that moving parts of equipment and machinery be guarded, and that personal protective equipment be used to reduce the likelihood of injury.
However, EM 385 includes some more stringent technical provisions than CFR 1926. In particular, the level of emphasis that EM 385 places on employee training and job site inspections suggests that EM 385 views these two elements as being critical for preventing accidents. This makes sense because employee training is crucial for informing employees of the potential hazards to which they are exposed and the precautions that should be taken to mitigate those hazards, especially those that are not particularly obvious.
For example, many people would probably recognize the hazard posed by a power cord so badly worn that the conductors are visible or by smoking near an open container of gasoline. Yet many employees might not be aware of the need for performing a ring test before mounting a new grinding wheel, or the need to evaluate a confined space for atmospheric hazards. Job site inspections provide a practical means for determining the effectiveness of the training by seeing whether or not employees have incorporated it into their day-to-day activities.
For example, if job site inspections consistently reveal that damaged hand tools are being used, it might be necessary to reinforce the initial training and increase the level of supervision to ensure more thorough examination of hand tools before use, and removal of damaged tools from service.
With respect to employee training, OSHA standard 29 CFR 1926.21(b)(2) provides the broad training requirement that "the employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury."
EM 385 imposes much more rigorous training requirements. Specifically, element 6 of the accident prevention plan demands that a list of subjects that are discussed with employees during their safety indoctrination be provided. This should give pause to any contractors who do not provide safety indoctrination and hope to work on DoD projects.
In addition to the initial safety indoctrination, EM 385 includes provisions for ongoing training, specifically section 01.B.03 which requires that "safety meetings shall be conducted to review past activities, plan for new or changed operations, review pertinent aspects of appropriate activity hazards analyses (by trade), establish safe working procedures for anticipated hazards, and provide pertinent safety and health training and motivation." Section 01.B.03.a further stipulates that "meetings shall be conducted at least once a month for all supervisors on the project and at least once a week by supervisors or foremen for all workers."
In addition, section 01.B.03.b requires that "meetings shall be documented, including the date, attendance, subjects discussed and names of the individuals who conducted the meeting. Documentation shall be maintained and copies furnished to the designated authority on request." Note that section 01.B.03 demands that the content of safety meetings be relevant to the specific job and that they review past activities and plans for new or changed operations. They must also review pertinent aspects of appropriate activity hazard analyses (by trade). This requirement clearly suggests that EM 385 expects that workers will be briefed on the specific hazards of the job they are working on and on the precautions they must take, and that the content of these briefings will change as the job progresses. Consequently, the approach of providing generic safety talks would be unacceptable.
In many construction companies, the corporate office provides foremen with prepared safety talks that they are supposed to review with their crew. In many situations, the content of these talks has little or nothing to do with the particular job. I can recall one job that involved the structural renovation of the exteriors of town houses. The job involved extensive use of ladders and scaffolds. A perfunctory walkthrough survey showed missing guard rails, large voids in the decking, precarious means of access, and tripping hazards posed by debris and power cords on the decking.
Curiously, the toolbox safety talk provided by the foreman the day I was there covered hazards posed by oxy-fuel gas burning. Admittedly, the talk provided a reasonably comprehensive discussion of burning hazards, but it was completely irrelevant to the job because no burning was being performed. The job site cried out for employee training on scaffolding requirements but when I raised this point, the foreman just shrugged.
With respect to safety indoctrination, section 01.B.01 stipulates that employees shall be provided safety and health indoctrination and continuing safety and health training to enable them to perform their work in a safe manner. All training required by this manual shall be conducted by qualified persons. Section 01.B.02 further requires that indoctrination and training be based on the safety and health program of the contractor or government agency, as applicable, and shall include but not be limited to:
- Requirements and responsibilities for accident prevention and maintaining safety and healthful work environments.
- General safety and health policy and procedures and pertinent provisions of this manual.
- Employees and supervisor responsibilities for reporting all accidents
- Provisions for medical facilities and emergency response and procedures for obtaining medical treatment or emergency assistance
- Procedures for reporting and correcting unsafe conditions or practices.
Job Site Inspections
OSHA standard 29 CFR 1926.20(b)(2) requires that contractors "provide for frequent and regular inspections of the job sites, materials and equipment to be made by competent persons designated by the employer" and 1926.32(f) defines a "competent person" as someone who is capable of identifying existing and predictable hazards in the surroundings or working conditions that are unsanitary, hazardous or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them. But section 01.A.08b of EM 385 stipulates that "contractor quality control personnel as part of their quality control responsibilities shall conduct and document daily safety inspections." Section 01.A.08.c further requires that "identified safety and health issues and deficiencies and the actions, timetable and responsibility for correcting the deficiencies shall be recorded in inspection reports." It also requires that follow-up inspections to ensure correction of any identified deficiencies shall be conducted and documented.
EM 385 apparently recognizes the severe hazard posed by entry into confined spaces, taking a far more assertive approach than that espoused by OSHA's construction standards.
OSHA standard CFR 1926.21(b)(6)(i) simply requires that all employees required to enter into confined or enclosed spaces be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required. As I explained in a previous article ("Confined Spaces: Myths, Magic, Urban legends and the Facts," Feb. 2001), OSHA policy allows construction contractors to be cited under the general duty clause for failing to abide by the ANSI Z117.1 confined space standard which closely parallels 29 CFR 1910.146. EM 385 incorporates provisions that are virtually identical to OSHA's general industry standard directly into the requirements outlined in section 6.1.
In addition to technical requirements that are more rigorous than OSHA standards, EM 385 includes a few requirements that are not even addressed by OSHA standards. These include operation of all-terrain vehicles, cumulative trauma prevention and lockout/tagout.
All-Terrain Vehicles. Section 18.d of EM 385 requires that every ATV operator possess a valid state drivers license and have completed an ATV training course prior to operation of the vehicle. It also stipulates that only ATVs with four or more wheels are allowed, and that ATVs may only be driven during daylight hours.
Cumulative Trauma Prevention. Section 06.K of EM 385 addresses cumulative trauma prevention. Specifically, it stipulates that "work activities that require workers to conduct lifting, handling or carrying, rapid and frequent application of high grasping forces, repetitive hand-arm manipulations or whole body vibration and other physical activities that stress the body's capabilities shall be evaluated to ensure the activities are designed to match the capabilities of the workers."
Lockout/tagout. While OSHA standard 29 CFR 1910.146 does not apply to construction, section 12 of EM 385 outlines requirements for the control of hazardous energy that are almost identical to those in the OSHA general industry standard. For example, paragraph 12.A.07 requires a hazardous energy control plan that includes hazardous energy control procedures, including a statement of the intended use of the procedures, means of coordinating and communicating hazardous energy control activities and procedural steps and responsibilities for shutting down, isolating, blocking and securing systems to control hazardous energy. Section 12.c also requires that daily inspections be conducted and documented to ensure that all requirements of the hazardous energy control procedures are being followed.
Opportunities exist for safety practitioners to partner with construction contractors to assist in developing accident prevention plans that meet the rigorous requirements of EM 385. Preparation of these plans require a high degree of technical sophistication, which as a practical matter construction contractors who do not have a full-time certified safety professional on staff might have a difficult time addressing. This opens an opportunity for safety professionals to marry their knowledge and skills to that of a construction contractor to develop accident prevention plans and activity hazard analyses that comply with EM 385.
An online copy of EM 385 may be found at www.usace.army.mil/inet/usace-docs/eng-manuals/em385-1-1/toc.htm.
Sidebar: Minimum Basic Outline for Accident Prevention Plan
1. Signature Sheet. Title, signature and phone number of the following:
- Plan preparer (corporate safety staff person, QC);
- Plan approval, e.g., An owner, company president or regional vice president (HTRW activities require approval of a certified industrial hygienist or qualified industrial hygiene personnel for in-house USACE activities; a certified safety professional or qualified USACE safety personnel for in-house work) may approve the plan for operations involving UST removal where contaminants are known to be petroleum, oils or lubricants);
- Plan concurrence (provide concurrence of other applicable corporate and project personnel (contractor)), e.g., chief of operations, corporate chief of safety, corporate industrial hygienist, project manager or superintendent, project safety professional, project QC.
2. Background Information. List the following:
- Contract number;
- Project name;
- Brief project description, description of work to be performed and location (map);
- Contractor accident experience (provide information such as EMR, OSHA 200 Forms, corporate safety trend analyses);
- Listing of phases of work and hazardous activities requiring activity hazards analyses.
3. Statement of Safety and Health Policy. (In addition to the corporate policy statement, a copy of the corporate safety program may provide a significant portion of the information required by the accident prevention plan.)
4. Responsibilities and Lines of Authorities.
- Identification and accountability of personnel responsible for safety - at both corporate and project level (contracts specifically requiring safety or industrial hygiene personnel should include a copy of their resume - the District Safety and Occupational Health Office will review the qualifications for acceptance).
- Lines of authority
5. Subcontractors and Suppliers. Provide the following:
- Identification of subcontractors and suppliers (if known);
- Means for controlling and coordinating subcontractors and suppliers;
- Safety responsibilities of subcontractors and suppliers.
- List subjects to be discussed with employees in safety indoctrination.
- List mandatory training and certifications that are applicable to this project (e. g., explosive actuated tools, confined space entry, crane operator, diver, vehicle operator, HAZWOPER training and certification, personal protective equipment) and any requirements for periodic retraining/recertification.
- Identify requirements for emergency response training.
- Outline requirements (who attends, when given, who will conduct, etc.) for supervisory and employee safety meetings.
7. Safety and Health Inspections. Provide details on:
- Who will conduct safety inspections (e.g., project manager, safety professional, QC, supervisors, employees, etc.), when inspections will be conducted, how the inspections will be recorded, deficiency tracking system, follow-up procedures, etc.;
- Any external inspections/certifications which may be required (e.g., Coast Guard).
8. Safety and Health Expectations, Incentive Programs and Compliance.
- The company's written safety program goals, objectives and accident experience goals for this contract should be provided.
- A brief description of the company's safety incentive programs (if any) should be provided.
- Policies and procedures regarding noncompliance with safety requirements (to include disciplinary actions for violation of safety requirements) should be identified.
- Provide written company procedures for holding managers and supervisors accountable for safety.
9. Accident Reporting. The contractor shall identify who shall complete the following, how and when:
- Exposure data (man-hours worked);
- Accident investigations, reports and logs;
- Immediate notification of major accidents.
10. Medical Support. Outline on-site medical support and off-site medical arrangements.
11. Personal Protective Equipment. Outline procedures (who, when, how) for conducting hazard assessments and written certifications for use of personal protective equipment.
12. Plans (Programs, Procedures) Required by the Safety Manual (as applicable).
- Hazard Communication Program (04.B.01);
- Emergency response plans: Procedures and tests (01.E.01); Spill plans (01.E.01, 06.A.02); Firefighting plan (01.E.01, 19.A.04); Posting of emergency telephone numbers (01.E.04); Wildfire prevention plan (09.K.01); Man overboard/abandon ship (19.A.04)
- Layout plans (04.A.01);
- Respiratory protection plan (05.E.01);
- Health hazard control program (06.A.02);
- Lead abatement plan (06.B.05 & specifications);
- Asbestos abatement plan (06.B.05 & specifications);
- Abrasive blasting (06.H.01);
- Confined space (06.I);
- Hazardous energy control plan (12.A.07);
- Critical lift procedures (16.C.17);
- Contingency plan for severe weather (19.A.03);
- Access and haul road plan (22.I.10);
- Demolition plan (engineering and asbestos surveys) (23.A.01);
- Emergency rescue (tunneling) (26.A.05);
- Underground construction fire prevention and protection plan (26.D.01)
- Compressed air plan (26.I.01)
- Formwork and shoring erection and removal plans (27.B.02)
- Lift slab plans (27.D.01)
- SHP and SSHP (for HTRW work an SSHP must be submitted and shall contain all information required by the accident prevention plan two documents are not required (28.B.01);
- Blasting plan (29.A.01);
- Diving plan (30.A.13);
- Plan for prevention of alcohol and drug abuse (Defense Federal Acquisition Regulation Supplement Subpart 252.223-7004, Drug-Free Work Force);
13. The contractor shall provide information on how they will meet the requirements of major sections of EM 385-1-1 in the accident prevention plan. Particular attention shall be paid to excavations, scaffolding, medical and first aid requirements, sanitation, personal protective equipment, fire prevention, machinery and mechanized equipment, electrical safety, public safety requirements, and chemical, physical agent and biological occupational exposure prevention requirements. Detailed site-specific hazards and controls shall be provided in the activity hazard analysis for each phase of the operation.
About the author: Contributing Editor John Rekus, PE, CIH, CSP, has consulted with a variety of DoD agencies with respect to construction safety concerns. He may be reached at (410) 583-7954.