Has anything changed with the way L&I conducts business in the wake of the Market Street building collapse?  Perhaps not surprisingly, no.

In today’s Philadelphia Daily News, Helen Urbinas shares a story of a neighbor who is plagued by an adjoining home that is in danger of collapse. Despite a report from a structural engineer that concludes

“The front wall is bowing out, flashings are loose and falling off of the wall, the downspout is loose and falling. It’s also not properly connected to the wall or connected to city storm pipes. Brick joints are open for water to flow into them”

L&I refuses to act.  Instead, its inspectors, who you recall are not structural engineers or even trained in spotting what a building in danger of collapse looks like, have stated that there are no structural issues with the home.

If that is not bad enough we have this gem from L&I spokesperson, Rebecca Swanson,

“It’s [the neighbor’s] responsibility to take care of his property. We enforce the code.”

Right, and enforcing the Code includes getting the Law Department to petition the Court for injunctive relief to have the City make the repairs and then place a lien against the property for the cost or even getting permission from the Court to demolish the property.  Apparently, the L&I has done neither.

On a positive note, officials in Harrisburg are apparently not waiting around for the City to change its ways.  Rep. Bill Keller of Philadelphia has introduced legislation that would require L&I inspectors to actually be trained in what to look for in structural failures and would include State oversight of L&I officials to make sure they are completing their training.

 

 

In the wake of the Market Street building collapse, much has been made of whether the contractor performing the demolition violated OSHA standards and most of the blame has been directed (rightfully so) to the building owner, the demolition contractor, and the City of Philadelphia.  The Salvation Army has thus far avoided scrutiny.  That may now change.

In today’s Philadelphia Daily News, David Gambacorta and William Bender ask what role the Salvation Army’s actions may have played in the tragedy and raises the question of whether the Salvation Army itself violated OSHA.  According to the article, the Salvation Army rebuffed requests to have protective scaffolding placed above the Army’s building and workers complained of hearing bricks fall onto the roof of the building in the weeks leading up to the collapse.  Curiously, the Salvation Army has remained rather silent during the saga except for the obligatory prepared statement about the tragedy.

OSHA is charged with assuring the safety of workers and its guidelines are designed with work place safety in mind.  On the other hand, building codes are designed to assure that buildings are structural sound and habitable.  OSHA standards are not building codes and OSHA does not make sure contractors are following building codes.  Although, there certainly is some overlap.  One example of this, that I made in a previous blog post, is with fall protection.  OSHA requires fall protection for workers working over at a height greater than 6 feet.  OSHA will make sure that roofers are wearing fall protection but will not make sure that a roof is being installed so that it does not leak.  Put another way, if roofers are not wearing fall protection and the contractor is cited, it does not mean the roof was not installed correctly.

Under the so called “general duty” clause of OSHA regulations, employers are required to assure that employers keep their employees free from known hazards that risk causing serious injury or death.  Obviously, if the Salvation Army was aware of the adjacent demolition and, more particularly, of falling debris, then Salvation Army may be guilty of an OSHA violation because it permitted its employees to be exposed to a known hazard.  Of course, in addition to violating OSHA, the Salvation Army may also be liable for common law negligence in permitting its workers from occupying the space while the demolition of the adjacent property occurred.

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.

Oil and Gas Lawyer Steven Saunders in Scranton tipped me off to a new OSHA Bulletin entitled “Worker Exposure to Silica during Hydraulic Fracturing.”  A copy of the Bulletin is available HERE.  With this Bulletin, contractors working in the oil and gas industry can be assured that OSHA is going to be paying close attention to working conditions at sites where fracking is occurring.

Under federal law, contractors are responsible for providing safe and healthy working conditions for their workers.  According to the Bulletin, OSHA has jurisdiction over regulating work place conditions that expose workers to silica, including Air Contaminants (29 CFR 1910.1000); Hazard Communication (29 CFR 1910.1200); and Respiratory Protection (29 CFR 1910.134).  In addition to providing workers with proper respiratory protection, OSHA recommends contractors institute engineering controls, such as applying fresh water to roads around the well site to reduce dust, reducing the drop height on the sand transfer belt, enclosing points where dust is released, using enclosed cabs or booths for workers unloading silica, and replacing belt transfers with a screw auger transfer system. Moreover, OSHA recommends that contractors medically monitor workers for unhealthy exposure to silica dust.

OSHA also recommends educating workers on how to safely handle silica and to reduce the hazards related to silica exposure.  This recommendation is particularly important because if a contractor cited for an OSHA violation can show that it had an employee safety policy in effect; adequately informed employees of the safety policy; diligently tried to discover violations; and effectively enforced violations of safety rules, it may avoid liability under the “employee misconduct” defense.

Apparently, even low or moderate levels of exposure to crystalline silica can cause serious damage to a worker’s lungs, including chronic cough, shortness of breath, and in some cases respiratory failure.  The dangers associated with silica sound eerily similar to those of asbestos.  If the health hazards involving silica are founded, like with asbestos, you can be sure that plaintiffs attorneys are waiting to lay siege to an industry with deep pockets.  Therefore, if OSHA fines were not incentive enough to begin taking silica exposure seriously, the threat of lawsuits from the Plaintiffs’ Bar should add more than enough additional incentive.

So, contractors in the oil and gas industry who have workers exposed to silica dust should be proactive or they will likely find themselves facing an expensive OSHA fine or on the wrong end of a company threatening personal injury lawsuit.