Why Can’t the City Enforce Contractor Safety Standards?

Welcome to another chapter of Do-It-Yourself-Neighborhood-Health-and-Safety-Inspector.

As many of you know, while walking to dogs, I’m constantly running across unprotected trenches that are too deep, workers grinding stone and inhaling silica, or working on top of roofs without fall protection. So many that I’ve written a do-it-yourself guide for wanna-be neighborhood workplace safety inspectors and I’ve apparently become the scourge of local contractors.

This was, on one hand, a typical occurrence: identify a hazard, try to resolve it, and then call OSHA when that’s unsuccessful.  This one was different because I had a long discussion with the city public works guy who explained why the city allows unsafe conditions to persist.

Workers at Risk

The skinny: I ran across this excavation a couple of blocks from my home.  Far deeper than the five feet OSHA allows for unprotected trenches, no hardhats, no means of egress (ladders to get out), etc. and doubtful that anyone had been trained about the hazards of trenches or excavations. Maryland has its own state OSHA program, so I called Maryland OSHA (MOSH) and sent some photos.

The woman on the other end thanked me, then called back a few minutes later saying that, according to supervisor, this looked like an “excavation,” and not technically a “trench” because it was wider than it was deep and therefore no trench box or shoring was needed.  I said that may be true, but these guys were on their knees setting up a concrete form and there’s no way they’re escaping if the walls of the “excavation” start to collapse. Plus egress problems. I also sent them an excerpt from OSHA’s National Emphasis Program on trenching which stated that:

Because of the continuing incidence of trench/excavation collapses and accompanying loss of life, the agency has determined that these worksites continue to warrant an increased enforcement presence. OSHA has long maintained that employees exposed to potential cave-ins must be protected before the excavation face is in imminent danger of collapse, because OSHA believes that there is a potential for a collapse in virtually all excavations.

Compliance Safety and Health Officers (CSHOs) shall initiate inspections under this NEP whenever they observe an open trench or an open excavation, regardless of whether or not a violation is readily observed. These observations may occur during the course of their normal work-day travel or while engaged in programmed or un-programmed inspections. Trenching and excavation operations will also be assigned for inspection as the result of incidents, referrals, and complaints.

And that:

Any unprotected trench or excavation that is brought to the attention of the Area Office shall be evaluated, and, if appropriate, inspected (i.e., referrals from city inspectors, DOT and other third parties). [emphasis added]

And finally, that

States with OSHA-approved State Plans [like Maryland] are expected to have enforcement policies and procedures in place for their trenching and excavation inspections which are at least as effective as those in this instruction.

She responded that they would re-evaluate, and a couple of days later a MOSH inspector called and said they had gone out the day before and identified several violations. He was very appreciative that I had reported the hazard and encouraged me to contact him any time.

Compliance Safety and Health Officers shall initiate inspections … whenever they observe an open trench or an open excavation, regardless of whether or not a violation is readily observed — OSHA Trenching and Excavation National Emphasis Program.

So that went about as well as could be expected.

Public Works Failure

But here’s the problem.

When I first started taking pictures of the site, a guy came up behind me and asked if he could help me with something. Turns out he wasn’t the contractor, but an employee of the Takoma Park Public Works Department who was overseeing the project. I pointed out the multiple hazards, naively expecting him to say “Oh my God, you’re right.” and force the contractor to fix the problems.

But no. He nodded and said he knew, but there was nothing he could do about it.

This reasoning isn’t going to sound so good if someone gets killed on the job when the city inspected was aware of the existing safety hazards.

Nothing? Don’t contracts include a clause where the contractor agrees to comply with all federal and state laws and regulations? Well, yes, he responded, but…

And then he spend a long time explaining to me how hard it was to get contractors on small jobs with low profit margins, plus the City doesn’t pay top dollar when it’s using city funds, vs. Federal funds.

So, “If I enforce our contracts too strictly, I lose our partners.”  He said he has shut down jobs, and “yanked them out when I see the walls starting to go.”

Which, I added, is most likely too late to save a life. And all of this may make sense to you, but this reasoning isn’t going to sound so good if someone gets killed on the job when the city inspected was aware of the existing safety hazards.

Now this conversation was troubling on a number of levels.  First, it’s obvious to anyone that OSHA doesn’t have the ability to identify all construction jobs, nor the staff to get to any more than a small minority of construction sites on any given day.   In 2021, it would have taken MOSH almost 140 years to inspect every workplace in the state just once — about the same as the federal average. And Maryland’s average penalties are quite low: Only $862 for a serious violation (compared with a federal average of $3,315), and $2,051 for a fatality (compared to a federal average of $11,626.)

So, one solution that I’ve always advocated, especially for jobs that are under a city, county or state contract, is that the public works directors, educated about safety issues, should either shut down unsafe projects or at least be OSHA’s eyes and ears, and make a referral to the agency when an unsafe condition is identified.

This is a systemic issue whose root cause seems to be inability of the city to afford high road contractors that are more likely to comply with OSHA standards. And the inability of OSHA to hire enough inspectors, and issue much higher penalties to deter this kind of behavior.

But here we have a situation where we have a knowledgeable city inspector. So far, so good. But he feels constrained about shutting down a job or calling OSHA because he’ll risk losing the contractor. And for what it’s worth (not much apparently), Takoma Park is a very progressive community with a unionized workforce. Is this the sole fault of the Public Works guy? Is his reluctance to enforce safe working conditions the main problem or is this also a systemic issue whose root cause is the inability of the city to afford high road contractors that are more likely to comply with OSHA standards? And the inability of OSHA to hire enough inspectors, and issue much higher penalties to deter this kind of behavior? Nor is this a problem unique to Takoma Park.

[Note: I later contact the city’s Public Works director who assured me that “We have since had several conversations with our contractor and the MOSH rep to get clarity about the situation and will endeavor to coordinate with our contractor to improve construction site safety.”]

What is to be done?

So what’s are the answers to this situation? I’ll admit that I don’t have a thorough knowledge of city finances, contracting practices or how contracts are enforced to speak authoritatively about this problem or all the possible solutions. (I may have to start attending City Council meetings.)

But here are a few suggestions:

• First, the city needs to pay enough to hire high-road, safety-conscious contractors (and the ability — and willingness — to shut down jobs or terminate them if necessary.) Does that mean higher taxes? (Hopefully not. We already pay a lot of taxes here).  Or maybe re-prioritization of the city’s budget? Or more county, state or federal funding?
• Maybe some kind of national public works code-of-conduct that requires public works inspectors to shut down jobs or report unsafe conditions to OSHA. The American Public Works Association Standards of Professional Conduct encourage APWU members to apply certain standards “to every aspect of their professional life.” One of those pledges: “I will consider public health and safety in every aspect of my work.” Sounds good, but first, these are recommendations that are “encouraged,” not required, and second, it doesn’t answer all the problems. What if the project is addressing a serious public health or safety issue that may cause hazards to public health or safety if it’s delayed because the city can’t find a contractor who will comply with OSHA standards or who withdraws form the project when the city cracks down on their work practices?
• And we certainly need a much better funded OSHA — both on the state and federal level —  as well as higher penalties.

Comments (below) are welcome.

A Final Lesson

Challenge unsafe conditions when you run across them. Use my handy Do It Yourself article for guidance. Let me know how it goes. Businesses need to know that there are eyes on them all the time, even if they’re unlikely to ever see an OSHA inspector.