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Author: Thomas H. Welby

Safety Policy: Safety Fundamentals for the Use of Aerial Lifts in Construction

Written by Thomas H. Welby on . Posted in Safety Policy.

Deaths associated with the use of aerial lifts are on the magnitude of 30 per year, or about 3% of all construction fatalities. Of these, boom-supported lifts account for roughly 70% of the deaths, with electrocutions (43%) being the greatest cause of death associated with boom-supported lifts, and falls (44%) and collapses/tip-overs (30%) being the primary causes of death in using scissor lifts.

Not surprisingly, electrical workers (45%) account for the largest subgroup of workers killed in using boom-supported lifts, while scissor lift fatalities are distributed about equally between electrical workers (22%) and construction laborers (23%), with “other trades” (plumbers, steamfitters and pipefitters, masons, drywall installers, etc.) being well-represented (38%).

The great majority of electrocution deaths involve overhead power lines. About half of these involve contact between power lines and the worker’s body, and about a third result from power lines coming into contact with lift booms or buckets.

Approximately half of fatal falls from boom-supported lifts (and one-half of fatal falls from scissor lifts) involve being ejected from the bucket after the worker, or the lift, is struck by a vehicle, crane or other object. About one in six fatal falls from boom lifts occurs while entering or exiting the bucket while elevated.

With boom lifts, collapses of the boom or the bucket and tip-overs account for not quite one-fifth of the fatalities. Tip-overs cause almost one-third of scissor lift deaths, mostly where the lift was elevated more than 15 feet above grade.

A first principle of safe lift operation is to have a written protocol requiring proper maintenance and training. Lifts must be inspected by qualified mechanics, and maintained in accordance with the manufacturer’s manual. Buckets on lifts to be used near overhead power lines should be insulated, and the insulation regularly checked for wear. A detailed inspection of the entire apparatus should be performed at least annually. De-energize and lockout/tagout any aerial lift before performing maintenance and repairs.

Safety devices and operating controls should be checked by a “qualified person” before each use, and the area in which the lift will be used should be checked for stability, inclination (do not exceed the manufacturer’s slope recommendations) holes, drop-offs, bumps, debris, and other hazards. Outriggers, brakes and wheel chocks should be deployed as necessary.

To prevent electrocutions, keep all non-electrical workers at least 10′ away from overhead power lines. Electrical workers must de-energize or insulate power lines, or use proper personal protective equipment.

To prevent tip-overs, do not exceed the manufacturer’s recommended load capacity limits, and do not use an aerial lift as a crane. Don’t use it for any purpose, other than to lift people and personal tools. Do not travel to the job location with the lift in an elevated position. When working near traffic, always set up proper work-zone protection.

Also, observe all of the following “don’ts” in positioning and setting up the lift: don’t drive near drop-offs or holes; don’t raise the platform on soft, uneven, or unstable services; don’t drive onto such surfaces, while the lift is elevated; don’t raise the platform on a sloped surface, or drive onto a slope while elevated; and do not raise the platform in wet, windy or gusty conditions.

An aerial lift truck must not be moved while the boom is elevated and anyone is in the bucket, unless the equipment is specifically designed for that type of operation. Detailed requirements which must be satisfied if employees are to be permitted to ride on a scissor-lift platform are set forth in C.F.R. $ 1926.452(w)6). In using any type of lift, be sure that persons working or otherwise present in the area are warned, before the lift is moved from place to place.

OSHA regulates aerial lifts as scaffolds. Fall protection (full-body harness with lanyard, or body belt with 2-foot lanyard) is required on bucket trucks only. Harnesses and lanyards are not OSHA requirements on other types of boom lifts, or on scissor lifts, provided there are guardrails. In fact, because falling bodies being “arrested” can result in many types of lifts tipping over, there is a preference, in using scissor lifts, for fall-prevention systems, rather than fall-arrest systems.

Workers going aloft in lift buckets must be trained to tie off religiously; not to “belt off” to an adjacent pole or other equipment while working, and always to stand firmly on the bucket floor. They must never sit or climb on the bucket’s edge, or use ladders, planks etc. to get a better work position.

Two hazards prevalent in the use of scissors lifts are tip-overs and falls resulting from the platform being overloaded with heavy objects, and workers being crushed, where the platform approaches or comes into contact with overhead structures. Also, many models of scissors lifts are not rated for outdoor use. Be sure to review the manufacturer’s manual before using any scissors lift outdoors.

OSHA requires that lift operators be trained, but does not prescribe the content of such training. Reference should therefore be made to ANSI A92 aerial lift standards, which provide detailed guidance for a workplace inspection, issues that need to be addressed prior to each elevation, items to be covered in a daily pre-start inspection, and some three dozen topics that must meet compliance standards to operate the lift safely.

As lift equipment is typically rented, special care is required. While you should certainly obtain a written maintenance history for any lift you rent, of particular importance is that the lift have been inspected immediately prior to rental. Also, familiarity with one type of lift is no assurance of competence in operating any other type of lift. You need the operator’s manual and (if separate) the maintenance manual. These, naturally, will only provide information concerning the make and model being rented.

According to the “Statement of Best Practices of General Training and Familiarization for Aerial Work Platform Equipment,” both “training” and “familiarization” are necessary to ensure operator competence. Typically, according to the “Statement,” depending on the number of trainees, and the number of equipment classifications to be covered, training will require 3-6 hours, or more. “Familiarization,” for employees who have already completed training, typically requires 15-60 minutes, depending on the complexity of the equipment.

Employers are responsible for the adequate training of lift operators. Increasingly, OSHA inspectors are citing employers for failure to train employees “in the recognition and avoidance of unsafe conditions” and OSHA regulations applicable to their work environment, even where an accident causing injury or death has not occurred.

Make sure your lift operators’ training includes all of the following:

  • general coverage of your company’s safety practices;
  • the manufacturer’s recom-mendations for safe operation;
  • comprehensive coverage of potential hazards (including site conditions, as well as those specific to the equipment)
  • the requirement that the trainee give a “hands-on” demonstration, satisfactory to the instructor, of his or her ability to operate the lift; and
  • instructions as to the reporting of hazardous conditions observed (damaged or malfunctioning equipment and site conditions) and any accidents or “near-miss” occurrences.

Training should be documented and records retained for at least three years.

Naturally, if incidents (“near-miss” incidents) suggest the need, re-training should be provided.

General Duty Clause Sustains OSHA Citation for Use of “Grout Hog” on Forklift Without Skid Pins

Written by Thomas H. Welby on . Posted in Legal Alerts.

In addition to its many specific standards for employee safety and health, OSHA also has what’s known as its “General Duty Clause.” It’s often described as a “catch-all,” covering any and all unsafe conditions for which there is no specific standard. It’s not quite that expansive, but you should be aware of it, and its elements.

The recent decision in Secretary v. Jesse Remodeling, LLC illustrates both the requisites for a violation of the General Duty Clause, and for a “Willful” OSHA violation. In that case, a masonry contractor was erecting a brick and block foundation for a fast-food restaurant in Savannah. OSHA’s Assistant Area Director, who was buying lunch at a restaurant across the street, observed employees on a scaffold platform lacking a guardrail system at its open sides. He summoned a Compliance Officer by telephone, who came to the site and initiated an inspection.

In addition to several scaffolding and fall hazard violations, the Compliance Officer observed employees on the scaffold platform pouring concrete from a “Grout Hog” into cells in the block wall. The Grout Hog was being lifted above the platform by a forklift operated by Jesse Gamble, the employer’s principal and “competent person.” The Compliance Officer observed that the forklift lacked skid pins to secure the Grout Hog on the forks, and that Mr. Gamble was not wearing a seatbelt.

The CO also observed that the scaffold platform, 13 feet above ground, lacked guardrails at its open sides and ends. As employees on the platform were filling the cells with concrete, two employees, standing on the scaffold’s cross-braces about seven feet above the ground, were cleaning concrete droppings from the wall below the platform. After the filling of the cells was complete, the CO saw the employees climb down from the scaffold using the cross-braces and uprights.

According to Mr. Gamble, his employees had started to dismantle the scaffold on the back wall when a truck, delivering an additional supply of concrete, arrived, enabling the crew to fill the cells in four blocks that remained to be filled. Mr. Gamble testified that, as the “competent person,” he instructed the employees to fill the cells from the platform, while he elevated the Grout Hog using the forklift. The requirements to have a guardrail system on a scaffold do not apply, while the scaffold is in the process of being dismantled. Mr. Gamble claimed that, in his opinion, there was a greater risk of falling while re-installing the guardrails than while filling the cells, which he estimated would only take about fifteen minutes.

OSHA’s Area Office issued a five-item citation, with three “Serious” items and one “Willful” item (no guardrail system on the scaffold platform). The Grout Hog violation was charged under the General Duty Clause.

The employer contested the violations and penalties, its primary arguments being that the scaffold requirements did not apply, because the scaffold was in the process of being dismantled; that the skid pins were inadequate to secure the Grout Hog to the forklift; and that Mr. Gamble’s skill, in maneuvering forklift, was adequate to prevent the Grout Hog from slipping off the forks. Following trial, the Administrative Law Judge vacated the seatbelt violation item, but affirmed all of the rest (and related penalties).

A violation of OSHA’S General Duty Clause has four elements (in addition to employee exposure, and actual or constructive knowledge on the part of the employer). The first is a “hazard,” defined as conditions or practices deemed unsafe, over which an employer can reasonably be expected to exercise control. The second is that the hazard be “recognized,” that is, known to the particular employer, or generally known in the industry. The third is that the hazard be likely to cause serious injury or death. The fourth is that the Secretary must identify a means of abatement, sufficient to eliminate, or materially reduce, the hazard.

The employer’s use of the Grout Hog without skid pins was easily found to constitute a “hazard.” The Grout Hog weighs 1,436 lbs. empty, and up to 4,526 lbs. loaded. The skid pins are provided by the manufacturer, and attached to the Grout Hog, to prevent it from sliding off the forks, injuring employees, and damaging equipment. Elevated above a scaffold platform, clearly the Grout Hog, if it slipped off the forks, would expose the employees working on the platform to struck-by, crushed-by, and fall hazards.

That the hazard here was “recognized,” the ALJ found, was plain from the warning label on the Grout Hog’s fork pockets, and instructions in the manual always to use skid pins and linch pins or safety chains, whenever the Grout Hog is on the lift forks. The likelihood of causing serious injury or death was obvious as well, as the Grout Hog, as used by Jesse Remodeling, was estimated to weigh between 3,000 and 4,000 lbs., and presented a clear danger, were it to slip off the forks, of causing serious injury or death.

The final element — the feasibility of abatement — was made out by showing that, the installation of the Grout Hog on the forklift using skid pins or chains, in accordance with the manufacturer’s instructions, would eliminate or reduce the danger of it slipping off the forklift.

The statement of the employer’s principal, Jesse Gamble, acknowledged that he knew the skid pins provided to secure the Grout Hog on the forklift were not in use, although he attributed this to an “oversight.” The ALJ was not convinced by Mr. Gamble’s argument that his skill in maneuvering the forklift mitigated the risk of the Grout Hog slipping off. The General Duty Clause violation, and the accompanying penalty, were therefore affirmed.

The ALJ did vacate the seatbelt violation, essentially because it was charged under the wrong standard. The two items for working from, and descending by use of, the scaffold’s cross-braces, were affirmed. The employer argued unsuccessfully that there was no violation, because the exception where employees are erecting or dismantling the scaffold applies only where the employees are “solely” performing one of those tasks. Jesse Remodeling’s employees apparently had started to dismantle the scaffold, but interrupted that effort, and went up to pour more concrete, when the concrete truck arrived. In addition, employees were at work cleaning dripped concrete from the walls. In affirming the item for descending from the platform using the cross-braces, the ALJ noted that there was a ladder on the scaffold, but the employees had not used it.

Finally — and most importantly, from the viewpoint of the employer — the lack of a guardrail system was found to be a “Willful” violation. The “dismantling” exception was found, from testimony and photographs, not to apply. Mr. Gamble acknowledged that the guardrail could have been re-installed before filling the last four cells, and indeed that he had instructed his employees, upon the arrival of the concrete truck, to go back up and fill the remaining cells. Gamble had been a masonry contractor for 26 years, and a “competent person” for 15 years. His company had previously been cited for a similar violation, and had unsuccessfully asserted the “dismantling” exception in contesting that violation.

An employee (himself an OSHA “competent person”) testified that “the scaffold wasn’t ready for filling grout . . . [Gamble] knew that the scaffold wasn’t complete but he told me to do it anyway . . . even though we didn’t have the scaffold properly erected.” The ALJ found that Gamble, concededly with knowledge of the guardrail requirements, had simply elected to ignore them. This, the ALJ found met the “willfulness” standard of showing an “intentional, knowing or voluntary disregard for the requirements of the Act, or . . . plain indifference to employee safety.”

 

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Geoffrey S. Pope, Esq., counsel to the firm, assists in the preparation of this series. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

Safety Policy: Construction Employers’ Primary Duties Under New York’s Labor Law

Written by Thomas H. Welby on . Posted in Safety Policy.

In New York (in private-sector employment, anyway) federal OSHA has a comprehensive set of safety standards for construction work – plus a separate set of rules for general industry.

New York’s Industrial Code pre-dates OSHA, and remains very much in force. Generally, when OSHA is violated, the result is a citation, and a monetary penalty. However, although employees can and often do bring OSHA violations to the attention of the Regional Office (and unions are notified, and invited to participate in citation contest proceedings) employees cannot themselves issue citations, insist that the agency act, or go to court based on OSHA violations, even when injury or illness results.

Instead, New York has a Workers’ Compensation statute and personal injury actions under the state Labor Law. Workers’ Comp, of course, was an early-20th century innovation, representing a major compromise of competing interests. The benefit to workers is essentially threefold. First, they generally receive monetary compensation for covered work-related injuries within a reasonable period of time. Second, as Workers’ Comp insurance is mandatory, an injured worker rarely will be left with no compensation, should the employer become insolvent. Third, the injured employee does not have to prove, as a condition to obtaining compensation, that his or her employer was negligent.

The trade-off, of course, is that sums recoverable under Workers’ Comp are modest, and are often viewed by injured employees as insufficient. And, in theory, an employee covered by Workers’ Compensation may not sue his employer to recover damages for his injuries.

I say “in theory,” because the prohibition against suing one’s employer has an exception big enough to drive a truck through – at least where there are two or more defendants. Assume, for example, that a subcontractor’s employee is injured on the job, due to an equipment malfunction. While he may not be able to sue his employer directly, he can probably sue the general contractor, the construction manager if any, the premises owner, and the manufacturer and the vendor of the allegedly defective equipment.

Thanks to New York’s “contribution” statute, the doctrine of “comparative negligence,” and what is called “third-party practice” in civil tort litigation, even where the employee is barred, under the Workers’ Compensation Law, from suing his employer directly, the other defendant(s) will bring the employer into the lawsuit by means of a “third-party complaint.”

In New York, a party alleged to have been negligent is entitled to an apportionment of liability among all parties as the jury finds to have contributed to the plaintiff’s damages. Thus, the employer, even if protected against direct suit by his injured employee, will have to pay his share of the damages (corresponding to his degree of fault) under this doctrine of “comparative negligence.” Likewise, a plaintiff whose own negligence contributed to his injuries is not wholly barred from recovering damages, but his recovery will (with one major exception) be reduced, according as his fault contributed to bringing about his own injuries.

The exception mentioned, of course, is New York’s notorious “Scaffold Law,” N.Y. Labor Law ¬ß 240. Where the employer has failed to provide adequate protection against falls and other gravity-related hazards, the employee’s own negligence is irrelevant (unless it was the “sole proximate cause” of the occurrence).

Three sections of the Labor Law are pleaded in most lawsuits in New York alleging construction-related injuries. One, already mentioned, is the Scaffold Law, ¬ß 240(1). The second is ¬ß 241(6), which requires compliance with the provisions of the Industrial Code, promulgated by the Division of Safety & Health of the New York State Department of Labor. The third, ¬ß 200, essentially codifies the common law duty to maintain jobsites “as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.” These three sections outline, essentially, the primary duties imposed on construction employers by the State of New York. They’re illustrated in a recent appeal in the case of Mendez v. Jackson Development Group, Ltd.

Mendez allegedly was injured, while he and a co-worker were installing plate glass window panes in a building under construction. While Mendez was standing on a ladder, he and the co-worker, who was standing on the ground, lifted a pane in order to install it in a window frame. The pane split in half, and the pieces stuck Mendez, injuring him.

Mendez commenced suit under the three aforementioned sections of the Labor Law. The lower court granted summary judgment in the plaintiff’s favor on the “Scaffold Law” cause of action. The court also denied motions by defendants as to causes of action based on each of the three statutory sections mentioned.

The defendants appealed from each of the lower court’s determinations. The Appellate Division held that the lower court had correctly sustained the Labor Law ¬ß 200 claim. Defendants argued that they did not direct or control the plaintiff’s work. However, the appellate court stated, where a plaintiff’s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence, and under Labor Law ¬ß 200, if it has control over the work site, and actual or constructive notice of the dangerous condition. The Appellate Division agreed that the defendants’ submissions in the court below had not removed all triable issues of fact regarding control over the work site, and actual or constructive notice of a dangerous condition. Accordingly, those issues could not be decided summarily, but required a trial.

However, while the appellate court agreed with the lower court that summary judgment was appropriate on the Scaffold Law claim, it found that judgment had been granted below in favor of the wrong party! Although the plaintiff had been injured by falling glass, not every object falling on a worker, causing injury, gives rise to a ¬ß 240(1) claim. The plaintiff must show that, at the time the object fell, it was being “hoisted or secured,” or “required securing for the purposes of the undertaking.” The plaintiff has to show, also, that the object fell because of the absence, or inadequacy, of a safety device listed in the statute. Mendez completely failed to show this, and so this count of his complaint was dismissed.

The Appellate Division found, finally, that summary judgment should have been granted dismissing the ¬ß 241(6) claim. Suit under that section must be premised on a specified provision of the Industrial Code alleged to have been violated. In Mendez, the plaintiff alleged a violation of a section requiring owners and contractors to maintain working areas free from debris and other tripping hazards, “insofar as may be consistent with the work being performed.”

This claim was dismissed, because the plaintiff did not allege that he tripped on a tripping hazard (or even that such hazard had caused the glass to break).

Your safety personnel should all become familiar with Part 23 of the Industrial Code, “Protection in Construction, Demolition and Excavation Operations.” It’s online at the NYS Labor Department’s website. These rules (similar, but not identical to, OSHA’s construction industry standards) need to be incorporated into your company’s safety program.

Safety Policy: Safety in Using Hand Tools and Portable Power Tools: Some Basics

Written by Thomas H. Welby on . Posted in Safety Policy.

It’s important from time to time to review, and to remind your employees, about even the most basic procedures to be followed to ensure the safe performance of work in the construction trades.

Although such injuries are seldom fatal, it’s common for workers to be injured while using hand tools and portable power tools. Injuries sustained while using tools may result from the use of the tools themselves, as well as from falls, being struck by falling objects or projectiles, and exposure to harmful fumes, or other airborne substances.

Perhaps the most basic rule to observe is that no one should use a tool that he or she doesn’t know how to use, and use safely. No less fundamental is that only competent, authorized personnel should be permitted to repair tools, in accordance with manufacturers’ specifications.

Common injuries from the use of hand tools include cuts or lacerations from sharp edges or surfaces, eye injury from flying objects dislodged and projected from the tool, and bruises from the user striking some part of his body with the tool.

Generally, hand tool injuries are caused by the use of the wrong tool for the job; the improper use of the tool; the use of a defective tool, or one not properly inspected or maintained; and the failure to wear eye or face protection, safety shoes, or other necessary personal protective equipment.

It is essential, therefore, when using hand tools, for employees to wear appropriate PPE, and to inspect their tools to detect loose hammer heads, bent screwdriver bits, dull knives, etc., and to remove defective tools from service, and report the matter to a supervisor. Employees should also be trained that, if uncertain as to what PPE to use, they should consult a supervisor. To reduce the risk of slips and falls, floors in areas where tools are in use must be kept clean, dry and free of debris. The use of tools in proximity to explosive or flammable substances generally requires the use of spark-resistant tools of brass, wood, plastic or aluminum.

Power tools present dangers exceeding those associated with hand tools. Electric tools have as their main hazard the danger of electrocution, shocks, and burns. Those dangers are caused or enhanced by faulty power cords, the misuse of power cords, improper insulation or grounding, the failure to use a Ground Fault Circuit Interrupter, and use in wet conditions, or around wet surfaces. Electric tools should always have a three-wire cord (and be plugged into a three-hole receptacle) or, better, be double-grounded, with a housing unable to conduct electricity to the user.

Gasoline and mixed-fuel tools may emit flammable or explosive fuel vapors and/or toxic exhaust. Care must be taken in handling, transporting and storing the fuel. The device must be shut off and allowed to cool before refueling (to prevent accidental ignition of hazardous vapors) and ventilation, or PPE, is required as protection against carbon monoxide or other hazardous emissions, especially where the device is to be used in a closed area.

Gasoline or mixed-fuel devices should be equipped with a trigger lock to prevent accidental activation, as well as a constant pressure throttle control (like the one on your lawn mower) that will shut the power off when pressure is released. They should be inspected regularly for fuel leaks, and to ensure that mufflers, spark plugs and wires are in good condition.

Pneumatic tools’ greatest danger is the risk of being struck by one of the tool’s attachments or a fastener. PPE (including, in the case of jackhammers or other high-decibel devices, hearing protection) are essential.

“Do’s” for the safe use of pneumatic tools also include checking to see that the tools are fastened securely to the hose; safety clips or retainers to prevent attachments (such as the chisels on a chipping hammer) from being “shot” from the barrel, and the use of screens to protect other employees or passersby from being struck by flying fragments.

The air-hose must be designed to withstand the pressure to be applied. If the hose is more than half an inch in diameter, a safety excess flow valve must be installed, to shut down the source of air automatically, in the event that the hose breaks.

“Don’ts” in using pneumatic tools include the use of an air line having a leak, the use of an air hose for cleaning at nozzle pressures exceeding 30 psig (or without chip protection), kinking the airhose, or permitting it to lie across walkways or aisles. Generally, the trigger on an air hammer, impact wrench or similar tool should not be squeezed, until the tool is in contact with the work.

Every type of power tool has its own safety requirements, but the following is a partial list of safety rules that most types have in common:

  • Read and understand the manual.
  • Use tools only for tasks that they are designed to perform.
  • Use electric power tools that are properly grounded, and in conjunction with a Ground Fault Circuit Interrupters.
  • Don’t use electric power tools around flammable vapors, dusts or construction materials.
  • Avoid using electric tools in wet environments.
  • Only use recommended attachments, and be sure that they are properly installed.
  • Inspect tools for damage. If a tool is damaged, or becomes damaged while in use, report it, and remove the tool from service until repaired.
  • Feed materials at the rate the tool is designed to handle, and avoid excessive force to try to make cutting tools cut faster.
  • Maintain your balance, avoid over-reaching, use a tight grip, and grasp the side handle where available.
  • Never use power tools when tired, distracted, or under the influence of alcohol or drugs.

Your training and procedures should include maintenance, storage, and transportation protocols. Power tools, for example, should be periodically checked and repaired, as necessary, by authorized repair personnel. The power supply should be disconnected before making repairs. Only equivalent replacement parts should be used, the tool or its parts should not be altered, and parts should not be added or removed.

Sharp tools should be stored in a specially-designated cabinet equipped with a blade guard. Gasoline or other flammable fuels should be drained before long-term storage, and tools should, when appropriate, be de-energized (removing air pressure, de-pressurizing hydraulics, and removing loads).

Transportation guidelines should include prohibitions against carrying power tools by their electric cord, air line, or hydraulic hose. Sharp or pointed tools should not be carried with the “business end” pointed upward or toward the body, or handed to another person with the sharp end toward the receiver. Tools must never be thrown at, or toward, another person, or handed to another person while in operation.

Safety Policy: Don’t Be “Penny Wise and Pound Foolish” with the Lives and Safety of Your Employees

Written by Thomas H. Welby on . Posted in Safety Policy.

Since most of our firm’s clients are construction contractors, we hardly have to be told that getting work, and getting paid, are real problems for many in the industry.

With the national deficit crisis going from bad to worse, and many predicting dire economic conditions in the near future, everyone who wants to stay in business is, or ought to be, looking at ways to economize.

Even in these times, however, in reviewing cases for this series I’m appalled by accounts of employers that place their employees’ lives and safety at risk, to avoid spending even insignificant amounts of money to protect them.

One recent case involved a multi-prime contractor job on a large, damp, water pollution control project owned by New York City.

The electrical prime contractor, which we’ll call “XYZ Electric,” was, as usual on “Wicks Law” projects, responsible to provide temporary lighting all over the site.

A 41-year-old employee of the concrete and steel contractor was standing on a metal scaffold, provided to him by his employer, removing wood forms from the ceiling with a hammer. It was raining, and the inside of the partially-constructed building in which he was working was damp. There were water puddles about a half-inch deep on the floor on which the scaffold stood. Plaintiff was using a lighting unit, supplied by XYZ, the electrical prime. The unit had been tied at floor level to the bottom vertical beam of plaintiff’s scaffold, exposed to the rain. Plaintiff was wet, due to rain, sweat, and water that fell on him from the ceiling, as he was removing the wood forms.

Laborers stripping ceiling forms would customarily drop the debris down from the scaffolding. A witness later testified that approximately five lighting units had been taken out of service, after being damaged by debris dropped by workers in this manner.

In the plaintiff’s case, debris tossed by him from the scaffold struck the lighting unit, damaging the unit’s cover, but not the light bulb. The unit remained energized, its bulb remained lit, and the circuit breakers within the electrical distribution panels were not tripped. A worker heard a sound of electricity – but still the circuit breakers in the distribution panels failed to trip. Almost instantaneously, the plaintiff touched the wet, metallic scaffold with one of his hands, and received an electrical shock. His injuries were not fatal, but they included a permanent, 70% loss of vision in both eyes, as well as serious cervical/lumbar disc and nerve damage.

The lighting units, assembled from components purchased separately by XYZ, included a fixture (flood light), a power cord, and a clamp. The astonishing thing is that, while XYZ kept onsite, and issued for use by its own employees, power cords equipped with ground fault circuit interrupters (GFI’s), the units it assembled and provided to workers other than its own employees were without this added level of protection.

In the state court personal injury action that ensued, XYZ’s general foreman testified that GFI’s were “a little more sensitive” than the circuit breakers in the distribution panels. “Most electricians,” the foreman testified, provided two layers of shock protection (i.e., a GFI attached to the lighting unit, and operable, adequate circuit breakers servicing the temporary power line). The reason for the GFI’s on the individual units, according to the foreman, was that there was “a lot of water on the job, you don’t want to get electrocuted.”

Others, XYZ’s foreman testified, had requested to use XYZ’s units which, unlike those supplied by XYZ to non-employees, were equipped with GFIs. The safer units, however, were never loaned out. Asked why this was, XYZ’s foreman replied, “Money. Everybody supplies their own stuff.”

To be sure, the injured plaintiff’s own employer, which had affixed the XYZ-supplied unit to the metal scaffold in the rain, arguably ought to have noticed that a GFI-equipped power cord (costing just a few dollars more) would be safer. Indeed, the plaintiff himself can be said to be partly responsible for his own injuries, as if he wore work gloves at all, the same were not insulated. Everyone involved, I think, ought to have noticed that the lighting units were subject to damage from falling debris and other hazards, as several units in use on the project had been removed from service for just that reason.

The matter came before the Court, however, on a welter of motions and cross-motions, including one by XYZ for summary judgment, dismissing the injured plaintiff’s several causes of action against it. One cause of action – the one based on New York’s “Scaffold Law,” Labor Law ¬ß 240(1), had to be dismissed, because the facts showed clearly that the occurrence was not gravity-related.

The additional Labor Law and common-law negligence causes of action were sufficient, the Court found, for the action to go to a jury. “Essential” to the Court’s decision, its decision said, was deposition testimony by XYZ’s foreman, in which he stated that, had the damaged lighting unit been equipped with a GFI, it would probably have tripped when the scaffold became electrified. Asked whether the circuit-breakers in the distribution panels ought to have prevented a person from being shocked by standing and holding onto an electrified metal scaffold, XYZ’s witness testified, “I don’t know the answer to that.”

While the plaintiff’s injuries in the case under discussion were not life-threatening, it is no small thing, at age 41, to lose 70% of your vision. Moreover, while XYZ was but one of several employers on the project site not to supply GFIs for use with the temporary lighting fixtures, it was the contractor with primary responsibility for the temporary lighting.

That, probably, XYZ had liability insurance, and its legal defense was probably paid for by its carrier, is beside the point. If you work on substantial, multi-employer projects, both under OSHA and under New York law, you may be exposed to liability for hazards including ones you did not create, and for injuries to employees not limited to your own.

It’s hardly good for employee morale to recognize that the employer cares too little for the lives and safety of the workers carrying out the project to spring for GFI-equipped power cords, or other safety equipment. In addition to the importance of “doing the right thing,” every “serious” OSHA violation, every injury grave enough to produce a lawsuit has indirect, as well as direct, costs (some of which may be overlooked but are nonetheless real). Yes, the monetary costs to comply with OSHA and the Labor Law, and to provide your employees with a safe workplace, are not negligible. From time to time, I’m sure, companies acting in good faith have to make tough choices regarding how to keep costs down – including those for safety measures above the bare legal minimum.

However, where as in the case discussed, it ought to be easy to draw the line in favor of adding an extra measure of protection, it is “penny wise and pound foolish” not to expend modest sums of money to do so.

Safety Policy: Basics of Concrete and Masonry Construction Safety

Written by Thomas H. Welby on . Posted in Safety Policy.

Now and then it’s a good idea to review the foremost safety and OSHA compliance concerns peculiar to your trade. While many of the concepts will be familiar, it’s dismaying how often employers are cited for violating everyday, easily-complied-with stand-ards.

Safety “Rule One” for concrete and masonry work is that a load must not be placed on any portion of a structure, until a qualified structural designer has determined that the structure is capable of supporting it.

Concrete pour operations should be directly overseen by a competent supervisor. This should include a safety briefing to all employees, the inspection of forms and reinforcing materials, bracing, troughs, and Personal Protective Equipment, and conformity with relevant drawings and structural details. Protective head and face equipment should be worn, whenever concrete is to be applied using a pneumatic hose

Reinforcing steel for walls, piers, columns and other vertical structures must be adequately supported, and employers must take measures to prevent unrolled wire mesh from recoiling.

Laxity in protecting employees from impalement is a frequently-cited OSHA violation. All protruding rein-for¬c¬ing steel, onto or into which someone might fall, must be guarded. Use only hard plastic mushroom-type caps, or other approved devices (not paper cups, orange traffic cones, or tape). Guardrails, or other fall protection measures, should be implemented, to safeguard employees in areas from which they could fall onto rebar.

A restricted-access zone is required, where a masonry wall is being built. The zone should be as long as the wall under construction, and extend out from the base for a distance four feet greater than the height of the wall. The zone should be clearly marked off, and only employees actually working on the construction of the wall should be permitted in the area. The failure to create and enforce such a zone is another frequently-cited OSHA violation.

Similarly, post tensioning operations should be performed within a limited-access area, with access permitted only to employees essential to the tensioning operations.

To the extent practicable, elevated concrete buckets should be routed to eliminate, or minimize, risks to employees from falling concrete buckets. No one should be permitted to ride in a concrete bucket, or to work beneath one as it is being raised or lowered.

Formwork must be designed, fabricated, erected, supported, braced and maintained, so that it will not fail in supporting all vertical and lateral loads applied to it. Drawings and plans, including all revisions, for the jack layout, formwork (including shoring equipment), working decks, and scaffolds, must be available at the jobsite. Failure to comply with this requirement is frequently cited by OSHA inspectors.

Shoring (and reshoring) equipment must be inspected prior to erection, to avoid the use of damaged equipment, and to determine conformity with the formwork drawings. Erected shoring equipment must be inspected immediately prior to, during, and immediately after concrete placement. Damaged or weakened equipment must be reinforced at once.

Sills used for shoring must be sound, rigid, and capable of carrying their maximum intended load. All base plates, shore heads, extension devices, and adjustment screws must be in firm contact and secured, when necessary, with the foundation and the form. “Eccentric” loads on shore heads (anywhere other than where the shore head has been designed to accept them) must be avoided.

If single-post shores are “tiered,” or placed one on top of another, additional requirements must be met. The shores must be designed by a qualified designer; vertically aligned; spliced to prevent misalignment; adequately braced in two mutually-perpendicular directions at the splice level (each tier to be diagonally braced in the same two directions); and inspected, after erection, by a qualified engineer.

The adjustment of single-post shores to raise formwork must not be made after the placement of concrete. Reshoring must be erected, as the original forms and shores are removed, whenever the concrete is required to support loads exceeding its capacity.

The steel rods or pipes on which vertical slip forms (i.e., forms jacked vertically during the placement of concrete) must be specifically designed for that purpose, and adequately braced where not encased in concrete. Forms must be designed to prevent excessive distortion of the structure during jacking. Jacks and vertical supports must be positioned in such a manner that the loads do not exceed the jacks’ rated capacity.

Jacks or other lifting devices must be provided with mechanical dogs, or other automatic holding devices, to support the slip forms, should there occur a failure of the power supply or the lifting mechanism itself.

During jacking, the predetermined safe rate of lift must not be exceeded, and the form structure must be maintained within design tolerances for plumbness. All vertical slip forms must be provided with scaffolds, or work platforms, where employees are required to work or pass.

Forms and shores must not be removed until the concrete has gained sufficient strength, based on compliance with conditions stipulated in the plans and specifications, or testing by an ASTM standard method, verifying sufficient compressive strength.

Precast concrete wall units, structural framing, and tilt-up wall panels must be adequately supported until permanent connections are completed. Lifting inserts for tilt-up wall panels must be capable of supporting at least twice the maximum intended load; inserts for other precise members must be capable of supporting four times the load. Lifting hardware must be able to support at least five times the maximum load to be applied or transmitted to it.

“Lift-slab” operations are subject to many requirements applicable to vertical slip form jacking operations. Jacking equipment (and all load-bearing components) must be capable of supporting at least 2-1/2 times the load being lifted, and must not be overloaded. Units must be designed to support the load, at any position, in the event of malfunction or power failure, and to stop lifting if overloaded.

All lift-slab operations must be pre-planned by an experienced professional engineer, with plans to include detailed instructions and sketches. The plans and designs must also provide for maintaining the lateral stability of the building or structure during construction.

No non-essential employee shall be permitted in the building or structure while any jacking operation is taking place, unless a licensed professional engineer, independent of the engineer who designed and planned the lifting operation, has determined from the plans that the building/structure has been reinforced sufficiently to ensure that, in the event of a loss of support at any jack location, such loss will be confined to that location. No non-essential employee shall be permitted beneath a slab, while it is being lifted.

Any masonry wall over 8′, if not supported by itself or by another structure, must be braced to prevent tipping over or collapsing. The bracing should be prescribed by a competent person or the project engineer, taking wind loads into account. The bracing must remain in place until the engineer of record has given written consent, and the wall is permanently supported by the rest of the structure. Failure to comply with these requirements is a frequent ground for OSHA citations.

Safety Policy: Employees’ Acute Carbon Monoxide Poisoning Gets Contractor “Willful” OSHA Violations, $112,000 in Penalties

Written by Thomas H. Welby on . Posted in Safety Policy.

A Chicago-area concrete contractor was charged with three “Willful” OSHA violations, following an incident in which four employees were sickened, and two diagnosed with acute carbon monoxide poisoning.

At trial before an administrative law judge, the employer succeeded in having one of the three citation items vacated, and the other two reduced in gravity from “Willful” to “Serious.”

On appeal to the OSH Review Commission, however, the Commission reinstated the dismissed item and affirmed all three citation items as “Willful.” The Commission imposed penalties totaling $112,000.00.

The project was the pouring of a concrete floor inside a commercial structure being added to a pre-existing building. The new addition was 90 x 75 feet x 30 feet high. It was connected to the existing structure by an overhead door, which led to a vestibule area. In addition to the overhead door, which faced west onto a parking lot, there was a man door near the newly-constructed, steel-frame addition. A second man door was located on the southwest side of the building, which opened onto a parking lot on the adjoining street.

Elliott Construction, the employer, had a “flat work” crew of twelve at the site, under the direction of foreman Michael Dynowski. In setting up for the pour, Dynowski deployed three fans to provide ventilation, as a gasoline-powered laser screed, power rake, and power trowels were to be used in the indoor space. He set up two large industrial fans, one at the man door opening to the outside parking lot, and the other at the overhead door that led to the vestibule. A small pedestal fan was placed at the other man door, to blow air in from outside. Dynowski had had safety training regarding carbon monoxide (CO), and knew that CO, as would be emitted by the gasoline-powered equipment, posed a potential danger to his crew members’ health.

In addition to exhaust from gasoline-powered equipment being used indoors, the size of the pour required a dozen concrete trucks to remain idling, while parked near one of the building’s few openings.

At about 10:15 A.M., Employee “A” complained to Dynowski of a headache, but attributed it to a sinus condition. Employee “A” took an outdoor break of 15-20 minutes, and returned to work. A few minutes after Employee “A” went outside, Employee “B” reported feeling ill, at which point Dynowski, as he later testified, realized that “there was a carbon monoxide issue.”

Despite that realization, Dynowski did not stop the pour, even after Employee “B” vomited, and Employees “C” and “D” also reported feeling ill. Despite Elliott’s policy, which was to get everyone out of the building and to contact Safety Check (an outside consultant) to perform CO monitoring, Dynowski did nothing more than permit the affected workers to take breaks outdoors. A pause in the work was taken only when the supply of concrete ran out, and the crew had to wait for more to be delivered.

When the additional concrete arrived, Dynowski took the crew (minus the four ill employees) back inside, to resume working. Fortuitously, an employee from Safety Check stopped by on a routine visit, and summoned medical assistance.

All four workers were administered oxygen and taken to hospital, where Employees “C” and “D” were diagnosed with acute CO poisoning. Adjusted for time of exposure and timing of the blood tests, the test results calculated that Employee “C’s” exposure level was 104.1 PPM, and Employee “D’s” was 80.5 PPM. OSHA’s maximum Permissible Exposure Limit (PEL) for airborne CO is a time-weighted average of 50 PPM.

Elliott was cited for three violations. One was for failing to maintain a program providing for “frequent and regular inspections” of the job site, by failing to conduct air monitoring for CO. The other two items were for exposing Employees “C” and “D” to levels of CO above the PEL.

In part because, four years previously, Elliott had been cited for exposing seven employees to CO, at levels up to 4.4 times the PEL, the Secretary characterized the violations as “Willful,” and sought penalties of $112,000. Elliott contested all items and the penalties.

At trial, Elliott pointed out that the OSHA standard requiring “inspections,” unlike several other OSHA airborne contaminant standards, does not specifically require that the employer “monitor” or “test” the air. That’s a plausible argument, under the rule of statutory interpretation that, if a requirement appears in one or more provisions directed to a common end, its omission in other provisions having the same purpose should be regarded as deliberate. Based on that argument, the ALJ vacated the first, failure-to-inspect citation item.

The employer was less successful in its challenge to the excess-exposure citation items, which was based on evidentiary issues and expert witness testimony attacking the methodology employed, in the absence of monitoring at the site, to calculate the CO exposures of Employees “C” and “D” by working backward from their tested blood levels of carboxyhemoglobin, a byproduct of inhaling CO that reduces the blood’s oxygen-carrying capacity.

This latter challenge failed, the ALJ sidestepping the methodology issues by relying on monitoring by the local fire department following the workers’ exposure, all four employees’ symptoms during and after their exposure, and the indisputably elevated levels of carboxyhemoglobin in the blood of Employees “C” and “D.”

However, while the ALJ affirmed the two excess-exposure items, she fund in favor of the employer on the “close issue” of willfulness. As a result, these items were affirmed as “Serious” rather than “Willful,” and only $14,000 in penalties was assessed.

On review, the Commission reinstated the “failure to inspect” item, finding that the absence of the terms, “test” or “monitor” could not be determinative, given that, because CO is colorless and odorless, the only way to “inspect” a worksite to ensure that the PEL for CO will not be exceeded is by air monitoring.

The Commission further ruled all three violations to have been “Willful,” and increased the penalties from the $14,000 imposed by the ALJ to $112,000 as originally sought by the Secretary.

Gasoline-powered equipment is more commonly used outdoors. The indoor use of such equipment (if not equipped with catalytic converters) should be avoided where possible.

Engineering measures (the use of fans) to keep CO levels below the PEL were not, as required, approved for that particular use by a competent industrial hygienist, or other technically qualified person. Neither were respirators used.

Those omissions were particularly important in the Elliott case, because the building where the work was being performed was barrier-tight, and had few openings to the exterior.

In ruling the violations to be “Willful,” the Commission relied also on the fact that Elliott had adopted, but later abandoned, the daily use of CO monitors following the prior incident.

The hallmark of a “Willful” OSHA violation is an “intentional, knowing or voluntary disregard” for the requirements of the OSH Act, or “plain indifference to employee safety.” Apart from heftier penalties, and potential damage to your ability to get work, “Willful” violations are harmful to your firm’s reputation, and to employee morale as well.

Safety Policy: Olympic Park Build Gets a “Gold Medal” for Health & Safety

Written by Thomas H. Welby on . Posted in Safety Policy.

The 2012 London Olympic Games, in progress as this is written, are proving a great success in terms of athletics and showmanship. The construction of the venues, Olympic Village, and associated infrastructure proved to be a rousing success as well. One of the largest construction projects ever undertaken in Greater London was completed on time, and within budget. Forty-six thousand workers put in over 80 million man-hours, without a single fatality, and with an accident rate well below the national average for the U.K.

These impressive results were not the product of chance, but of thoughtful planning, and making health management – as well as accident prevention – top priorities throughout.

The entire project was planned as something of a “laboratory”, with the Olympic Delivery Authority (ODA) and the U.K.’s Health Services Executive (HSE) commissioning a number of studies and reports to memorialize what was done, and how such outstanding results were achieved.

An Occupational Health service was established, with a team of occupational hygienists and other professionals advising managers in the prevention and treatment of occupational sickness, and the promotion of healthy behaviors. Members of the OH team attended all senior team health and safety meetings, and provided support on-site to ensure that all design work, method statements and risk assessments took health risks into account.

The OH team had a strategy, and targeted, in particular, vibration, noise, respiratory issues, hazardous substances, and manual handling. The team was funded by the ODA, and its services provided free of charge to all contractors. The cost was about ¬£350,000 a year over the three-year life of the project, but the payback was remarkable. It was estimated that exposure to occupational health risks was reduced by as much as two-thirds, and the reduced number of sick-days taken by project workers may have saved as much as ¬£7 million over three years. This “return on investment” of roughly 7:1 suggests that having full-time occupational hygienists on larger projects is not only good for the workers, but makes economic sense as well.

Savings achieved thanks to the OH team well exceeded reduced sick-days, and benefited individual contractors as well. One example is that the OH team identified potential methacrylate exposure, and devised a simple but effective control regime, saving the contractor an estimated £20,000.

Following a site closure due to the identification of asbestos-containing materials, the OH team’s ability to provide prompt, tailored asbestos-awareness training enabled another employer to quickly get its large workforce back to work, saving an estimated ¬£656,000.

The desirability of devoting the same degree of attention during the design phase to occupational health risks as is given to safety issues is illustrated by the following account of problems encountered due to a modification to the design of decking on a number of bridges, when it was recognized that resulting hand-arm vibration and noise might be significant. This is one of a number of “Lessons Learned” published online by the ODA (london2012.com/ learninglegacy).

Both permanent and temporary bridges were to be constructed for access to the Olympic Park site. It was decided that five temporary bridges would include wooden, rather than asphalt decking, and that two of the five would need to be strong enough to accommodate a large fire engine. The enhanced strength requirement meant that approximately 16,000 holes would have to be drilled into the concrete base, and many more points screwed into place to better secure the decking.

The Principal Contractor building the temporary bridges detected a possible hand-arm vibration risk, when employees of the subcontractor working on the decking reported symptoms of possible carpal tunnel syndrome. The employees were referred to the on-site occupational health facilities for screening, and two were confirmed to have carpal tunnel syndrome, which was being exacerbated by the use of vibrational tools.

That finding triggered a review of the bridge decking activities by the on-site occupational hygienist. That review showed that employees could not use the drills for more than 30 minutes a day, without incurring excessive vibrational exposure. The hygienist also raised issues regarding the level of exposure to silica and wood dust, excessive noise exposure, and other manual handling concerns.

Limiting the daily use of the drills to 30 minutes would have produced an unacceptable delay in the completion of the bridge decking. Therefore, the contractor sourced, and the hygienists monitored the trial use of, a low-vibration drill, with an integrated extraction system to reduce exposure to wood dust and silica. The new drill was found to be safe for use for up to eight hours daily. Further monitoring was performed, and controls for silica and noise exposure were tightened. The number of fixings to batons was also reduced.

As stated in the “Lessons Learned” article, there were several earlier stages at which occupational health risks from the wooden decking ought to have been identified. While later review emphasized the failure to design out these particular risks, the good news is that, thanks to the proactive approach to health risks on the project, and the ready availability of occupational hygienists, significant reductions in vibration, noise, and silica exposure were achieved, with only a brief interruption in the decking installation.

Following completion of the Olympic project last year, a team from the Loughborough University’s Schools of Business and Economics and Civil and Building Engineering was commissioned to review the techniques that produced the exemplary results. The key recommendations for future projects made by this study included several items I have stressed in this series.

First, lead from the top. The ODA set standards, and visibly engaged with the project workforce. Your company will excel in health and safety only if employees see that top management is genuinely committed to that goal.

The second key point is one I have mentioned often: develop competent supervisors. Your field supervisors should have both technical knowledge regarding health and safety, and communications skills to influence workers’ understanding and behavior.

Third, foster an open, positive health and safety culture. The Olympic project made this a top priority from inception.

Fourth, reward good behavior. Incentives and rewards helped to promote safe behavior on the Olympic project, but positive feedback was the real reward in many cases.

Fifth, review and learn. Issues were constantly communicated and reviewed across the organization, and solutions to problems were formulated and implemented.

A sixth recommendation I would add to the foregoing is to devote more resources, and more training, to health issues, not just accident prevention. Historically, the positive impact of OSHA has been less dramatic in the occupational health area, where results (both positive and negative) are less immediate, and trickier to assess. The Olympic build proved the value of occupational hygienists, and that the associated cost was one which, on that project at least, was recouped many times over from reduced sick time, and creative, delay-minimizing problem-solving in the field.

Safety Policy: OSHA Citation Upheld for Inadequate Firewall Separating Oxygen and Acetylene Cylinders

Written by Thomas H. Welby on . Posted in Safety Policy.

It’s important to be familiar with OSHA standards governing the use and storage of compressed gas cylinders, even if your own employees do not themselves engage in cutting and welding operations. Since the risks include explosions and fire, general knowledge of the Subpart J (Welding and Cutting) standards is essential, as a matter of protecting your employees. Obviously, if your company doesperform cutting and welding, your knowledge must be thorough. If you are a general contractor, you will probably be responsible for your subcontractors’ OSHA violations under the “Multi-Employer Doctrine,” which implies the need to know these standards well.

In Secretary v. National Steel Erection, Inc., the respondent was a subcontractor engaged in fabricating holding tanks for a wastewater treatment system in Tennessee. It was issued a single-item “Serious” citation by OSHA for having oxygen, acetylene and propane cylinders on a storage rack, without a sufficient firewall. The cylinders were separated by a noncombustible barrier 5 feet in height, and 1/4″ thick, but with a 1″ gap between the barrier and the frame on the frame’s right and left sides. At the time of the OSHA inspection, National Steel had not done any cutting or welding for one week; and, as it was finishing up and had only one employee remaining onsite, had no plans to use the cylinders again on the project. (The importance of the last-mentioned fact is that, generally, OSHA is less strict in citing violations of the “storage” standards, if the cylinders are expected to be in use within 24 hours, and are connected to a properly-functioning regulator).

National Steel was cited for violating 29 C.F.R. $ 1926.350(a)(10), which provides:

Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a fire-resistance rating of at least one-half hour.

National Steel contested the citation. At the time of the inspection, four or five employees of another contractor were painting and sandblasting the tanks, about 30 feet distant from the storage rack. Another contractor’s job trailer was about 50 feet away. Employee exposure to the condition was thereby established.

The element of actual knowledge was established by admissions by National Steel’s superintendent that he knew that the cylinders were in storage, and that the barrier had not been tested. The ALJ found “constructive knowledge” as well, as the storage rack and cylinders were in plain view at the time of the inspection.

Apart from the amount of the proposed penalty, there was only one issue for the ALJ to decide: the sufficiency of the barrier on the storage rack to comply with the standard.

The exact composition of the barrier was uncertain. While it was shown to have been made only of metal (and not metal combined with cement plaster or mineral wool fillers) it was not shown to be 100% steel. While neither National Steel nor the Secretary had actually had the barrier tested to establish its fire rating, the ALJ found convincing the Secretary’s argument, based on a 2006 “Memorandum on Interpretation for Fire Resistance Ratings for Metal.” That Memorandum found, essentially, that 1/2″ thick steel would not meet the necessary 1/2-hour fire resistance rating. Steel plate barriers combined with plaster (cement, lime and perlite) fillers, or mineral wool fillers, provide a higher protection factor. Since National Steel’s barrier was only 1/4″ thick, even if it were assumed to be solid steel, it would not meet the fire rating required.

Also, the ALJ found, even if the partition had been thicker and combined with concrete plaster, it would still be insufficient, because of the 1″ gap between the barrier and the frame, which would permit fire to circumvent the barrier.

Although the ALJ reduced the monetary penalty, she affirmed the firewall violation as “Serious.”

OSHA issued a new final rule regarding acetylene, under the Part 1910 general industry standards, which became effective on November 9, 2009. The Part 1926 construction standards have not been amended correspondingly.

An innovation, which while spurred by the amendment to the general industry guidelines has spread into the construction domain, is the replacement of many old-style two-wheeled “tip-back” carts (having two gas cylinders chained to the deck) which had been the standard since the early 1900s.

Naturally, a primary safety feature on the newer welding carts is an OSHA-compliant firewall between the gas cylinders. One design has a partition consisting of three separate baffles, to create two exhaust vents at the top, and two intakes at the bottom. This allows heat from the fuel-gas flame of one cylinder to draw in ambient air from below, with the heated air escaping through the top vents. This minimizes heat transfer to the oxygen cylinder.

The newer carts have a number of additional safety-related features. Among them are: a four-wheel base; steel enclosures to protect the cylinders from being punctured or otherwise damaged by falling objects; mechanical devices, rather than loose-fitting chains, to secure the cylinders; a separate, vented container for the regulators, a torch cradle, a surface for parts, supplies, and manuals, and a self-recoiling hose reel.

Down the road, I expect, OSHA will update the Part 1926 construction standards regarding the storage and use of compressed gases in cutting and welding operations.

In the meantime, it’s a good idea to become familiar with existing Subpart J standards. (All OSHA standards can be found online at www.osha.gov). In addition, and in advance of necessity, you should consider adopting some of the practices required or commended under the amended general construction standards.

One frequently-found practice to be avoided is storing acetylene cylinders in confined spaces, such as unventilated cabinets, closets, and drawers. It is recommended, also, that cylinders not be transported in automobiles, and that the valves on acetylene cylinders not be opened without a regulator and flow restrictor attached.

There are thousands of welding-related injuries annually, and statistically a high fatality rate amongst workers in this trade. Many of the rules are matters of common sense, such as keeping hoses and cables clear of passageways, ladders and stairs, inspecting torches at the beginning of each shift for leaking shutoff valves, hose couplings, and tip connections, and not taking acetylene or oxygen cylinders into confined spaces.

By taking advantage of improved technology and attention to the welding and cutting standards, this is one construction hazard that can be significantly reduced.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Geoffrey S. Pope, counsel to the firm, assists in the preparation of this series. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

Safety Policy: Confined Space Construction Standard May Soon Become Final Rule

Written by Thomas H. Welby on . Posted in Safety Policy.

As you probably know, OSHA has separate standards for general industry and construction. The general construction standards are Part 1910 of Volume 29 of the Code of Federal Regulations, and the construction standards are Part 1926.

Just because your company does what you regard as “construction work,” that doesn’t mean that the general industry standards never govern work that you do. Construction and modernization work generally fall under Part 1926, but maintenance and repair activities are governed by the general industry standards of Part 1910. It’s the nature of the activity being performed, not the primary line of work or other attributes of the employer, that governs.

For years, OSHA’s general industry standards have included rules for work in “confined spaces.” Such spaces are defined as:

  • Large enough, and arranged in such a manner, that employees can enter;
  • Having limited or restricted means of ingress or egress; and
  • Not designed for continuous employee occupancy.

A primary feature of the general industry rules is the “permit-required” confined space. This refers not to a permit granted by a government agency, but procedures whereby the employer restricts who may enter certain hazardous confined spaces, and with what precautions.

OSHA’s general industry standard defines a “permit-required confined space” as one with at least one of the following characteristics:

  • A hazardous atmosphere, or the potential to contain one;
  • Material having the potential to engulf entrants;
  • An internal configuration that could cause an entrant to be trapped or asphyxiated by inwardly converging walls, or a floor that slopes downward and tapers to a smaller cross-section; or
  • Other recognized, serious safety or health hazards.

Further features of the general industry standard include warnings to employees; the identification and control of hazards existing in permit-required confined spaces, and the necessity for a comprehensive, written confined space entry program. Since primary confined space hazards include too little oxygen, or the accumulation of toxic or flammable contaminants, atmospheric monitoring, isolation and ventilation may also be required.

The general industry standard requires employees entering or supervising entry operations to be designated, trained and qualified, and that contractors be informed of hazards posed by entry. Required, also, is an emergency response plan.

Although applicable to maintenance and repair work, historically the general industry standards have not applied to construction work. Construction standards for trenching, excavation and tunneling operations, although having similarities with the general industry confined space standards, are governed by ¬ß 1926.651 (trenching and excavations) and ¬ß 1926.800 (tunneling).”

At present, the primary construction standard that applies to confined spaces is § 1926.21, which requires in part that:

All employees required to enter into confined or enclosed spaces shall 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. The employer shall comply with any specific regulations that apply to work in dangerous or potentially dangerous areas.

The current construction standard defines “confined or enclosed spaces” to include, without limitation, “storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4′ in depth such as pits, tubs, vaults, and vessels.”

There exist additional, secondary construction standards that address confined space hazards in underground construction (Subpart S), underground electric transmission and distribution work (¬ß 1926.956), excavations (Subpart S) and welding and cutting (Subpart J). In the absence of a comprehensive OSHA construction standard, the CO’s accept compliance and training consistent with ANSI National Standard ANSI Z117.1-1989, “Safety Requirements for Confined Spaces” as satisfactory.

Things are expected, however, to change in the near future. After a glacial rulemaking process dating back to 1984, OSHA is expected within the next months to promulgate, as a final rule, a proposed new construction standard. The good news is that (in its “not quite final” form) on the merits, the new rule has much to commend it. The bad news is that it varies significantly from, and is more complex than, the ANSI standard which has been pretty much the de facto construction standard for decades. The proposed rule and explanatory material in the Federal Register ran to 49 pages (80 single-spaced pages, when printed out from the “Federal Register Online”).

OSHA’s rationale for having a distinct construction standard is based, among other considerations, on the evolving character of construction sites (with confined spaces changing, as the work progresses) and the characteristics of the construction workforce, with high turnover, employees performing short-term tasks, and working at multiple worksites.

While obviously I can’t fully describe the new standard fully (and significant last-minute changes could occur) some key differences between the new construction standard, in its current form, and the general industry standard are worth mentioning.

First, the construction standard is organized essentially in a chronological order, taking a step-by-step approach to assessing hazards, classifying the space, and how to safely enter it.

The new standard will require confined spaces to be classified as one of the following:

  • Continuous System Permit Required Confined Space (CS-PCRS);
  • Permit Required Confined Space (PCRS);
  • Controlled Atmosphere Confined Space (CACS); or
  • Isolated Hazard Confined Space (IHCS).

The PCRS is much the same as under the existing general industry standard. The CS-PCRS is one that is a part of, and contiguous with, larger confined space (such as a sewer) so as to require special precautions.

A “Controlled Atmosphere Confined Space” is one where ventilation alone should suffice to maintain atmospheric hazards at safe levels. The “Isolated Hazard Confined Space” is one in which all physical and atmospheric hazards have been “isolated,” which is to say eliminated or removed – such as by misaligning or removing sections of lines, pipes or ducts, installing guard rails, stairs or platforms to eliminate fall hazards, etc.

The proposed construction standard requires the “controlling contractor” to coordinate entry operations among contractors who have employees entering a confined space, even if the controlling contractor does not itself have employees who will enter it. Whereas the general industry standard provides for atmospheric monitoring “as necessary,” the new standard is more stringent, in that it requires continuous monitoring, unless it is affirmatively determined that periodic monitoring will suffice.

Employers will also be required to provide, calibrate and maintain PPE, as well as portable gas monitoring instruments, continuous air monitoring instruments for use during entry, air purifying respirators, self-contained breathing apparatus and supplied air systems, and entry and retrieval equipment for use by rescue teams in an emergency.

The new standard is more demanding, also, in that requirements for prompt rescue will require training and equipping on-site rescue teams, at locations where reliance on outside rescue professionals has hitherto been the norm.

This is a subject we’ll return to in future articles, but it definitely needs to be “on your radar,” even though its effective date has not yet been announced.