House Hearing: Does OSHA Adequately Enforce Construction Safety Rules?

During a June 24 House Committee on Education and Labor hearing focusing on OSHA’s role in enforcing construction safety rules, legislators and industry experts questioned whether the agency is doing everything possible to improve safety at construction sites.

“There’s no question that construction is an inherently dangerous job, and there’s no one who would argue with that,” said Rep. George Miller, D-Calif., chairman of the committee. “The question is whether more can be done to prevent accidents and make the industry safer.”

During his testimony, OSHA Administrator Edwin Foulke Jr. explained that the agency works to keep construction workers safe through enforcement, outreach and education. He pointed out that in FY 2007, more than half all planned federal and state OSHA inspections were conducted in the construction industry, and these inspections resulted in 74,816 citations. Since 2001, the agency issued 256 penalties in the construction industry with fines exceeding $100,000.

“During the same period, OSHA has made 64 criminal referrals to the Department of Justice, which is more than any other administration,” Foulke added.

Foulke also stressed that OSHA’s national and local emphasis programs, training programs, Spanish educational materials, the Voluntary Protection Program and strategic partnerships help OSHA improve construction site safety.

“I can assure the committee that construction safety is a top priority for OSHA and that we are striving to ensure that all employees return safely to their families and friends at the end of each and every work day,” Foulke said.

Finding Fault

Retired ironworker George Cole testified on behalf of his brother-in-law Harold “Rusty” Billingsley, who died Oct. 5, 2007 after falling 59 feet while working on the CityCenter Project in Las Vegas.

Cole said that Nevada OSHA initially fined the company $13,500 after an investigation determined the accident could have been prevented. But after meeting privately with the company, Nevada OSHA withdrew all citations and fines and stated that the employer bore no responsibility for the incident.

“Rusty’s death was not his fault,” Cole said. “There are two problems here: the unsafe conditions at the workplace, and OSHA’s failure to enforce its own standards as they were written.”

Cole said that OSHA standards required decking every two floors or 30 feet, but a compliance directive eliminated this safety provision.

“When Federal OSHA intends to make policy without going through a formal rulemaking process, this is a disservice to the stakeholders in the steel industry who rely on OSHA to provide constant enforcement of safety regulations,” Cole said.

Following NYC’s Lead

Robert LiMandri, the acting building commissioner for the New York City Department of Buildings, suggested that OSHA could improve its focus on construction safety by making some changes similar to the ones recently implemented by the city’s Department of Buildings.

Among the Department’s changes included nearly doubling the size of the agency and focusing more resources on construction safety; seeking new, improved regulatory oversight and enforcement tools; creating a new enforcement program to stop problems before they become serious; supporting an aggressive criminal persecution of repeat offenders; conducting a top-to-bottom review of high-risk construction areas to further enhance safety; holding all parties accountable; and focusing on education for construction workers and requiring site safety managers in more locations.

In addition, July 1 of this year marks the day the new construction codes go into effect in New York City. These codes “put construction safety front and center” and replace the city’s outdated 1968 building code.

“However, improving construction site safety also requires the federal government to take an active and aggressive role,” LiMandri said. “I urge Congress to follow NYC’s lead in allocating increased funding to construction safety and provide additional resources to OSHA so they can deploy the construction safety inspectors they so desperately need.”

The Daily Toll

Mark Ayers, president of AFL-CIO’s Building and Construction Trades Department, noted that every day, an average of four workers die on U.S. construction sites. Construction deaths amount to 10 times the number of firefighter or law enforcement deaths, and more than 20 times the deaths of miners, he said.

“Statistically, there is a much better chance of surviving a tour of duty in Iraq than there is in coming home from a working project in our homeland,” Ayers said.

To address this high-risk industry, Ayers asserted that five major actions are needed to improve construction safety. First, the nation needs a dedicated construction occupational safety and health administration, similar to MSHA for the mining industry. Second, a temporary emergency standard should require that all workers in the industry are trained and certified in accordance with the basic 10-hour OSHA safety and health training program. OSHA also must promulgate a crane safety standard, and should increase jobsite enforcement activities. Finally, NIOSH funding should be increased for construction safety and health research.

Mike Kallmeyer, senior vice president of construction services for Ohio-based Denier Electric, discussed the ways his company implements safety programs and training to ensure workers are safe.

“I believe that the most effective action for government is to aggressively promote its educational partnerships with the industry so more employers have the resources to improve the workplace,” Kallmeyer said. “By working together, industry and government can provide employers with the educational resources that they need to prevent accidents before they happen.”

Miller Questions Foulke

Miller asked Foulke why OSHA has not yet introduced a crane safety standard, even though negotiated rulemaking for the proposed standard was completed in 2004. Foulke explained OSHA had to draft the document’s regulatory text and the preamble, as well as submit the document for other required reviews and analyses.

When Miller then questioned whether 4 years represented the typical length of time to complete these duties, Foulke did not have a definitive answer and said he would have to look into the issue.

Miller also referenced Foulke’s statement regarding OSHA’s issuance of 24,000 fall protection citations with proposed penalties totaling $33 million in 2007. He questioned exactly what those numbers mean in regards to OSHA’s enforcement capabilities.

“It tells us OSHA’s enforcement program regarding construction is working,” Foulke said.

Miller continued to press the issue, asking why 24,000 citations from an agency with a limited ability to inspect sites would indicate a “good trend,” and how those numbers could be put into perspective.

“It shows that our target inspection program for identifying where the high-hazard construction sites are, where there may be problems, is working and that we’re getting to those sites and issuing citations,” Foulke said. “All I can say is that it demonstrates we have an effective safety enforcement program that is focused on getting to sites that have the problems and we’re finding the problems and correcting them or having them abated.”

Miller, however, asked for supporting evidence for Foulke’s claim that these numbers indicate OSHA is aggressive in its enforcement activities.

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