OSHA Summer Safety Initiative

OSHA has announced a “no-notice” “Construction Incident Prevention Initiative” campaign to “curb construction fatalities.”  OSHA will be focusing its compliance inspections on construction sites in the Delaware Valley.

According to OSHA’s Press Release:

“During campaign periods, OSHA sends all of its compliance officers into the field to conduct immediate inspections when unsafe working conditions involving the four leading causes of incidents are observed at construction sites. On-site outreach also is provided to encourage employers to continue good work when it is observed.”

What are the four leading causes of incidents at construction sites?

1. Falls  (34%)
2. Electrocutions  (10%)
3. Struck by Object (8%)
4. Caught-in/between  (4%)

What are the four most common OSHA standards violations?

1. Scaffolding, general requirements, construction (29 CFR 1926.451)
2. Fall protection, construction (29 CFR 1926.501)
3. Hazard communication standard, general industry (29 CFR 1910.1200)
4. Respiratory protection, general industry (29 CFR 1910.134)

How should contractors prepare for OSHA’s initiative?

Here, the old adage ‘an ounce of prevention is worth a pound of cure’ aptly applies. Obviously, contractors should self assess their work sites to see if they are in compliance OSHA standards.  If a contractor is unsure if its work site is in compliance with OSHA regulations, it should consider hiring an independent OSHA safety consultant to conduct an OSHA “audit” of the contractors work place and work site.

Additionally, contractors with safety programs and manuals in place should remind employees of the contractor’s safety plan and requirements.  Contractors should make sure employees are following the safety requirements while working especially in the areas of scaffolding, fall protection, hazard communication, and respiratory protection.  Employees seen violating the contractor’s safety plan and requirements should immediately be made to stop working and reminded of the safety obligations.  If appropriate, the contractor should consider reprimanding the employee.  These steps are particularly important because they may provide the basis for an “employee misconduct” defense to an OSHA citation.

What should a contractor due if an OSHA inspector shows up at a job site?

While OSHA inspectors are granted wide authority to inspect a business premises, a contractor can request that an OSHA inspector obtain a warrant before entering a private facility.   If the inspection is part of a programmed inspection, like the Summer Initiative, the OSHA inspector has the authority to inspect the entire job site. If an OSHA inspector shows up, a designated OSHA representative of the contractor, or if the contractors does not have one, a member of the contractors management team, should ask the OSHA inspector the basis for the inspection. During the inspection, a management and employee may accompany the OSHA inspector at all times.  It is recommended that the contractor  representative take photographs and take detailed notes of any conditions noted by the OSHA inspector. This step is particularly important on a multi-employer construction project site as the cited condition may not have been created by the exposing contractor and made provide the basis for a defense to a citation.

OSHA may also interview member of a contractor’s labor force.  “Non-supervisory” employees are entitled to be interviewed privately – that is without the presence of a management representative.  Employees should be reminded that they have the right to be interviewed with a member of management present or in the presence of an attorney.  If an employee is the member of a trade union, the contractor should alert that particular union.  Union members have the right to have a union representative present at the interview.   Union representatives also may be present during the walk through inspection.

Following the inspection, contractors should consider preparing a detailed and dated memorandum outlining the who, what, when, and where of the inspections.

We will keep you abreast if OSHA’s Summer Initiative results in an increased number of OSHA citations at area job sites.

The War Against West Virginia

The Obama Administration’s War Against Coal economic impact on the State of West Virginia is well known.  But  has the Obama Administration actually declared war on the entire State of West Virginia?  It certainly seems like it now that the Fish and Wildlife Service has decided to place the “Diamond Darter” on the endangered species list.   Moreover, the Energy Law Blog reports:

The FWS also is considering land use restrictions for the tiny fish, proposing critical habitat designation in an area of West Virginia that has seen increased exploration and production activity during the Marcellus Shale gas boom. If the FWS proposal is finalized, federal agency actions such as issuance of Clean Water Act permits or Federal Highway Administration approvals would require conference or consultation if they may impact species or their habitat.

In other words, it will become harder and more expensive to undertake projects where the habitat of the Diamond Darter may be impacted and, therefore, less attractive for natural gas drilling.  I have never seen a Diamond Darter and would not know one if I saw it, however the picture above which comes from the FWS website it pretty much appears to be a minnow.

We will see what impact this minnow will have on energy development in West Virginia and other areas.