Minutes of November 22, 2004, Meeting - Gaithersburg, Maryland

“Q” indicates a question, “A” the corresponding answer, and “C” a comment. All questions and comments, unless otherwise noted, were made by Advisory Committee members. All answers, unless otherwise noted, were by NIST personnel.

The minutes summarize the main points of each discussion; they are not intended to be a verbatim transcript of the meeting.

November 22, 2004

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Opening Remarks
Dr. James Hill, Director, Building and Fire Research Laboratory

Dr. Hill opened the National Construction Safety Team (NCST) Advisory Committee meeting at 8 a.m. and called the meeting to order. He welcomed the Committee and the public attendees to the meeting.

Dr. Hill then turned meeting over to Mr. Paul Fitzgerald, the Committee chair, for his opening remarks.

Opening Remarks
Mr. Paul M. Fitzgerald, Committee Chair

Mr. Fitzgerald stated that this is the last meeting of 2004 and that the meeting would begin with comments from the public.

Public Comment Session

Mr. Fitzgerald stated the ground rules for presenting public comments. Each speaker had 5 minutes to address the Committee. Members of the public may submit their comments in writing at the meeting or at any time.

Mr. Fitzgerald called the first speaker to the podium, Mr. Jake Pauls.

Jake Pauls, Jake Pauls Consulting Services
STATEMENT (pdf file)

Mr. Pauls submitted a letter to the Committee from the Skyscraper Safety Campaign. He stated his objection to the closed portion of the meeting and said that premature discussion of recommendations could not influence code-making bodies. Mr. Pauls noted that a NIST employee voted against a proposed change in the minimum stairway width. He believes that the objectives of Project 7, Occupant Behavior, Egress, and Emergency Communications, have not been achieved, and would like the investigation data on human behavior to be available for future research.

Mr. Fitzgerald called the next speaker, Dr. James Quintiere.

James Quintiere, University of Maryland, Department of Fire Protection Engineering
STATEMENT (pdf file)

Peter Hayden, Chief, New York City Fire Department
STATEMENT (pdf file)

Chief Hayden presented his statement on behalf of the New York City Fire Department and submitted the Department’s Strategic Plan for 2004–2005 to the Committee members.

Mr. Fitzgerald thanked the speakers and concluded the public comment session.

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NCST Advisory Committee Discussion on Annual Report to Congress
Mr. Paul M. Fitzgerald, Committee Chair

During this portion of the meeting, most of the discussion was by the Advisory Committee members. NIST staff made a few comments and answered a few questions.

Mr. Fitzgerald introduced the topic of the NCST Advisory Committee 2004 Annual Report to Congress, stating that the members would review the draft report at this meeting.

The Advisory Committee members began by reviewing the status of the recommendations from the 2003 Report of the National Construction Safety Team Advisory Committee to Congress. Mr. Fitzgerald said the focus of the meeting was to discuss the 2003 recommendations, update their status, and revise them as necessary for inclusion in the 2004 report. They would also discuss any new recommendations that the Committee may want to make to Congress relative to 2004.

C: Recommendation 4.1 was about implementation of the Act, and we addressed areas related to timeliness driven by the need to be onsite and get immediate access to physical evidence and to eyewitnesses. We made several recommendations in that area. The first was developing procedures for deciding if a safety team investigation is needed. The second was seeking relief from the Paperwork Reduction Act, and the third was having first-call investigation teams available and onsite within 48 hours of the incident. A substantial recommendation dealt with cooperation with local authorities. The first recommendation about developing procedures has been finalized and published in the Federal Register in the spring. What is the status of the second—seeking relief from the Paperwork Reduction Act?

C (NIST): We’ll get a status report from NIST Counsel.

C: The third recommendation, the first-call investigative teams, was specifically that NIST should have onsite experts throughout the country who would be able to get to the site in a timely manner if the Director opts to do a pre-investigation prior to starting a formal safety team investigation. Are there any comments on that?

C: Some of these things are a function of money. As far as having first-call teams available, if there is no money, it is a moot issue. We are setting up a program were there is no funding to run it.

C (NIST): We are looking at how we might organize our activities. There are various areas of responsibility that we are going to have to fulfill to make this a viable activity. One of them is establishing relationships with state and local authorities that will enable us to do investigations in the field. This is one of about 11 things that we need to do to actually set up the organization and carry out our responsibility. We’ve given some thought to being able to set up an office, staff it, and carry out these functions.

Q: How does NIST plan to respond to future incidents? A special office would be worthwhile.

*Recommendation: The Committee recommended that it include a recommendation in its 2004 Annual Report that NIST establish a special office within the Building and Fire Research Laboratory that is responsible for organizing and conducting investigations.

Q: This is a significant recommendation. What would the special office require in the way of staff, administration, reporting lines, and support?

A (NIST): The office would include a director and three technical staff with expertise in forensic engineering and one or two of the other disciplines that we would be sure to need. These would be the permanent staff, not the total staff that would conduct the investigation. The office would require 11 items, probably not appropriate in this level of detail in a report to Congress:

1. Operational procedures
2. Base of federal and private sector individuals
3. Training curriculum
4. Train and equip a cadre of investigators
5. Database with event data
6. Notification network
7. Establish relationships with state and local authorities
8. Establish contracts for support services
9. Provide support to the NCST Advisory Committee for their annual report to congress
10. Technical and editorial support for reports
11. Field support for safety, legal, and public affairs support

Q: Is this list something that you are suggesting that we put in our report or is it something that you are proposing as part of your budget?

C (NIST): Two pieces of funding would be required. There would be one fund to establish and maintain an office and a reserve fund to allow investigations to proceed immediately. NIST has received no funding for either as of yet.

Q: What order of magnitude of funding was requested?
A (NIST): We have been consistent with the Advisory Committee recommendation.
C: One of the challenging aspects of such a program is to determine the scope and scale of investigations, which events require a higher level of funding. The significance of an investigation may require requests for supplemental funding.

Q: How would the special office interact with the research staff?
A (NIST): The office would be charged with carrying out the responsibilities of the Act to make sure investigations occur. Recommendations for research could be conducted by NIST or others.

C: We had a 2003 recommendation arising from the Station nightclub fire, but it is also relevant to the WTC investigation—that a research project be initiated to study evacuation decisionmaking and human behavior during major building emergencies, including the phenomenon of crowd crush. This should become a more generic recommendation and carried forward as a separate recommendation for future research into the NIST research agenda.

*Recommendation: The Committee recommended that it will maintain a separate recommendation in its 2004 Annual Report that NIST should consider a research study for evacuation decisionmaking and human behavior, including crowd crush.

C: I have suggested language for a new recommendation, “The NCST Advisory Committee is disappointed that Congress has not provided funding for the continuation of the NCST Act Public Law 107 231. The initial funding for the WTC disasters has been fully used and the final report will be available in 2005. However, other building failures, such as what occurred during the hurricanes in 2004, could not be investigated due to the lack of available funds. The congressional supplemental appropriation funding for disaster relief does provide funding for investigations, but most of the evidence for forensic studies has been lost or destroyed. The investigation needs to be mobilized and initiated within 24 hours of the event. This is only possible if investigation funds are available for the event. The Advisory Committee repeats its 2003 recommendation and urges Congress to appropriate the recommended funding as soon as possible.” We would then repeat the 2003 recommendation language from Sections 4.4.1 and 4.4.1.1.

C: We could use that language as the recommendation for the $4 million in funding.

C: I think the issue is that post-disaster investigations should not be wrapped up with post-disaster supplemental funding that comes too late to allow an effective investigation. Maybe it should be stated quite explicitly that in order to do the job, teams must have funds available immediately when an event strikes. Since events are unpredictable, a fund must be set up.

C: We’ll consider some of that wording in the recommendation. We can add that the supplemental funding provides the mechanism whereby the $2 million reserve can be supplemented if the disaster is larger.

*Recommendation: The Committee recommended that it revise the draft language on investigation funding for the new Recommendation 4.4 of the 2004 Annual Report.

C: We’ll now discuss Dr. Corbett’s recommendations in Section 5 of last year’s report, which were also related to Recommendation 4.3.1.
Q: Recommendation 5.1.1 is tied to 4.3.1. Have we worked out issues on relinquishing authority to local jurisdiction? How is the Act interpreted? The NIST Director working with the Attorney General makes decisions with specific regard to criminal acts and whether a team can proceed. It was my understanding that the attorney general discussed in that portion of the Act was the U.S. Attorney General versus a state attorney general. This strikes to the heart of the Rhode Island investigation. I’m concerned that NIST did not aggressively work to obtain first-hand information and did not interview anyone or obtain any original foam. It strikes at the issues of Recommendation 4.3.1 of taking an aggressive stance in an investigation.

C (NIST): We did not get anything from the U.S. Attorney General, and we interpreted the Act to include state investigations and that we would relinquish authority. I know of no way that NIST could have convinced the Rhode Island Attorney General to give us access or provide us evidence. We are at the limits of our constitutional authority.

Q: When did the Attorney General impose his rules—within 24 hours?
A (NIST): The rules were in place when we arrived on the scene.
C: If NIST was on the scene sooner, they could have obtained information and collected evidence before the rules were imposed. Immediacy is at the heart of any investigation.

Q: Could NIST have issued subpoenas to witnesses independent of the Rhode Island Attorney General?
A (NIST): Yes, we could have, but we did not because of an investigatory decision.

C: There is a consistent undercurrent of critique in that NIST did not go far enough in conducting interviews for the WTC towers. NIST is not in a position of knowing everything. In legal proceedings “discovery” provides a means to obtain all information. I’m not sure we’re armed with enough weapons to get to the bottom of the investigation.

Q: The reports that NIST comes out with in these investigations cannot be used in civil and criminal investigations. Does NIST protect the investigators? Can investigators be subpoenaed?
A (NIST): Our reports can be introduced as evidence in criminal procedures. We have to be very careful and very accurate in whatever material we present. It is possible for NIST investigators to be subpoenaed for criminal and civil matters. The statute that protects us on civil matters is of uncertain constitutionality, but it is upheld in some states.

C: We could add words to the new language for Recommendation 4.4 that the lack of adequate resources severely restricted the scope of the Rhode Island investigation and therefore limits the ability of the NCST investigations from preventing similar incidents in the future (e.g., NIST could not investigate the hurricanes due to lack of resources). We will also include the recommendation that NIST adopt an aggressive investigative stance.

*Recommendation: The Committee recommended that it revise the proposed language for Recommendation 4.4 to indicate that the lack of adequate resources severely restricted the scope of the Rhode Island investigation and also limits the ability of the NCST from preventing similar incidents in the future.

*Recommendation: The Committee recommended it add language to 5.1.2 that NIST should adopt an aggressive investigative stance regarding information acquisition.

Q: Should the Committee recommend a change in the Act to improve access? What is the fix?
A (NIST): In part this rests on the constitutional rights of states versus the federal government. There is no fix short of a constitutional amendment.

C: In the field of disaster research, there is a tradition that is more than 50 years old of quick response research to disasters. The reason for that tradition is that people are often much more open immediately after an event occurs. We must get people out in the field rapidly.
C (NIST): There are two issues. If we have the funding and have set up the office, we will be prepared to respond quickly and gather evidence. What happens a few days later when a criminal investigation starts is a second issue, and can not be fixed short of changing the Constitution.
C (NIST): The purpose of the National Construction Safety Team Act probably would need to be restated in order to support criminal and civil litigation. The purpose of the current Act is to assess building performance, evacuation, and emergency response. The NCST statute indicates no intent for these investigations to support criminal or litigation issues.
C: One could argue that NIST’s investigations are for the greater public good.
C (NIST): In summary, what I have heard is that the issue of jurisdiction is very touchy. The sooner we are onsite, the better we can avoid addressing those jurisdictional issues and get as much evidence as possible. We have no intention or authority to get involved in criminal cases. Before the brick walls are built, we are basically encouraged to get as much of the evidence and information to make the investigation as informative and useful as it can be.

C: I want to pursue what I suggested as a recommendation for the separate office. I hope that if this is approved that this Committee would have the chance to discuss with NIST what the functions of that office would be and how to respond to incidents. The objective is to get out early and collect what we need before the lawyers get involved. I am concerned about sending someone out to the field within the first 24 hours and having them report back and then NIST decides to do an investigation three or four days later. I’m hoping that the establishment of the office idea is only the first step, and then the procedures would be developed with our assistance on how to do investigations.
C: We also need to develop strategies for future incidents that involve human-induced or terrorist acts where we would see an immediate preemption of jurisdiction by the federal government and federal law enforcement. There would need to be special sets of circumstances during terrorist attacks and special interagency agreements and credentials.
C (NIST): Although the constitutional issue is insurmountable, if you have proper funding of an office, you can begin establishing contacts. You will get input from people who trust you. Links formed during the Rhode Island and WTC investigations will benefit us in the future. We need to have people out in the field to establish credibility.
C: The issue of timeliness and getting access to people and evidence as early as possible keeps coming up today. The second thing we’re beginning to hear is that when the lawyers get involved is that NIST should be more aggressive in using the powers given to them under the Act.
C (NIST): The experiences were very different in the two investigations. On the WTC investigation, we’ve had litigation since day one and everyone involved has been very cooperative—Silverstein Properties, Port Authority, a lot of private companies that had material, and investigatory agencies at the federal, state, and local levels. In Rhode Island, the situation was very different. The state attorney general had appropriate constitutional duties to perform, and private litigants had their own interests to protect and chose not to be as cooperative. In both of those investigations, people were within their rights in doing what they perceived to be in their own best interests.

C: You’ll probably find that incident three will be different from one and two, and four, five, and six as time goes on. If I think of things that have happened in recent years, the Cook County fire for example, one very difficult fire, a whole new world of communications and brick walls, and paper walls, and it’s because of the nature of communications and other agencies, not NIST. That’s to be anticipated in any future NCST investigation. That’s why you need a careful thought-out strategy.

C: Now let’s move on to Recommendation 5.1.3, which is very different from the other two and should be discussed.
C: Recommendation 5.1.3 asked for development of a more comprehensive set of protocols and procedures for investigations. I went back to the interim final rule and there were some general protocols in there, but they lack detail. The recommendation was for NIST to prepare a much more detailed analysis so when an event occurred, there would be a specific roadmap to follow for different types of investigations. I’ve given a couple of examples of other agencies who have developed detailed procedures and manuals. One particular point is that NIST will be involved with things such as chemical hazards, aircraft, and transportation accidents, and we need to identify where we lack very specific test procedures or where, perhaps, we need more work by the standards-writing bodies. To sum up, perhaps based on what Jim Hill mentioned earlier about the formation of an office, this would be something that I recommend that NIST have a procedures manual ready.
C (NIST): We have been over to the National Transportation Safety Board and have developed a relationship with them. We have their operational manual, which covers everything from the starting of a notification to the finishing of a final report. Our intention is that the new office would have as its first charge to develop a detailed document of operational procedures. We also have met with the Chemical Safety Board. This was included in the 11 points that I described earlier.

C: There are many things that this Advisory Committee should look at very carefully. Before the 11 items are presented to Congress, the Committee should review and study them.
C: I agree that we should have an opportunity to review them, but I also think that providing this kind of detail provides the justification for why you need an office in the first place. Maybe Congress needs to see some examples of the sorts of complex things an office like this would do.
C: I agree with both prior statements, and I think we need to strengthen our rationale for why we need to have these things accomplished either through the budgeting process or through congressional appropriations.
C: I agree that we need to review the 11 items, but the report is due in a few weeks. My suggestion would be for Jim Hill to circulate the 11 items for review
C: I would suggest that the 11 items be included as an appendix to our report to Congress.

*Recommendation: The Committee recommended that it include in the 2004 Annual Report the list of items required for a separate NIST NCST office.

C: I would like the Committee members to make any recommendations relative to the Committee’s advice to NIST on the investigations or on other things we would like to see procedure-wise.

C: I think that NIST can use the expertise of the NCST Advisory Committee a little better. One idea is that we can review the request for proposals before they are sent out. Another one is to review final selected proposals, for example, the two final ones. Also, we should be given an opportunity to review the early drafts of the contractor reports. Finally, I would like to suggest that NIST review their in-house review procedures and dissemination of information. For example, I am reviewing an overview report before I’ve seen the basic data. At several points in the report, I have questions as to the validity of the statements, but I did not have the background documents to say that I’m right or I’m wrong. There is a need to supply the reviewers with basic data.

C: Those are very good suggestions. Those would be covered in the section of the report under the Committee’s activities for improving the process.

C: I think we’ve come a long way and done a great job. Whatever changes I would like to see would not affect the final outcome of the results. There are things that need to be taken care of to minimize the criticisms that may come when other people read the basic documents and reports that are issued.

C: I personally believe that the contractor’s reports should be contractor reports and not NIST reports so they are behind their reports with their full credibility. That way when people have disagreements with those reports they know who to go to.
C: The technical topic reports would either be written by NIST staff, contractor staff, or jointly by NIST and contractor staff if there was a considerable amount of cooperation. The contracts required constant side-by-side cooperation and technical work between NIST and contractor staff. The authorship will be very clearly based on those who actually did the work. We have to review all the reports. After the team has reviewed the report, then I review the report. After I review the report and am comfortable with the work that has been done for the investigation, then the report goes to the Advisory Committee and NIST clearance for review.

Q: Of the $16 million, how much was spent on outside contractors?
A (NIST): About $5.5 million. The total will probably end up at about $6 million when done.

*Recommendation: The Committee recommended that it assume responsibility to assign individual Committee members with relevant technical expertise as resources at the onset of investigations to undertake some of the accountability of working on requests for proposals, offering to have the right people to review contractor reports when first received, and to review background information and data to make it possible to turn the draft report around in a week.

C: We have to leave it to the team leader to decide what level to involve the Advisory Committee. We have no role beyond the Advisory Committee. I believe that NIST has struck a good balance. I do not see it as a structural problem.

C: It would be helpful if the contractor preparing reports would zero in on specific codes and practice situations.

*Recommendation: The Committee recommended that where codes and practices are impacted, NIST identify exact code and standard citations in its investigation reports.

C: The Station Nightclub fire report should be completed before the end of the year, and the WTC reports in early to mid-spring. We could write an interim report in 2005 after the WTC report comes out.

C: If so, we should state our plan for writing an interim report in the Annual Report.

*Recommendation: The Committee recommended that it consider the issuance of an interim report after the WTC and Rhode Island reports are issued.

NIST and Committee members briefly discussed the scheduling of the next NCST Advisory Committee meeting and agreed that it should be planned after the draft WTC investigation reports are issued and the WTC public comment period is completed.

Motion to adjourn the open session of the meeting was agreed to. The open session of the meeting was adjourned at 10:30 a.m.

ATTENDANCE

Created: 04/25/2005
Updated: 04/25/2005