As we all know, construction is a hazardous occupation, even when those running the project are paying attention, and using their common sense. We want to believe that, almost all of the time, our colleagues in the industry are making efforts, in good faith, to keep their employees safe. Now and then, however, I see cases, such as the one described below, that make me wonder.
The respondents in the OSHA case to be discussed were two related, family-owned companies, which got subcontracts to provide steel erection and masonry work at a mixed retail/residential project under construction in Long Island. The site was on a street corner, with power lines running along both streets. The lines, each of which carried 13.2 kV, shared a common pole at the corner. This “Pole #3” was about 10 degrees out of plumb, and encroached over the footprint of the building. The line running along Fourth Street to Pole #3 fed electricity to several downstream customers and, being a “dead-end” line, could not be rerouted. Because of that, de-energizing the Fourth Street line connecting at Pole #3 was not practicable. That line would have to be moved further away from the worksite (at a cost of about $70,000). The line running along Brooklyn Avenue to Pole #3, however, could be rerouted, and the line de-energized. At a pre-job meeting, an in-house architect working for the general contractor offered to take the matter up with LIPA (the Long Island Power Authority).
In July 2012, an engineer from LIPA visited the site, and saw that a mobile crane was situated on Brooklyn Avenue, close to the Fourth Street Side. The crane, he observed, was operating within 10’ of the power line on Brooklyn Avenue, and neither of the two power lines had been de-energized. He issued a “Cease and Desist” order, directing that work be stopped until the lines were de-energized. The Brooklyn Avenue line was de-energized, and grounding devices placed on it, but the Fourth Street line could not be de-energized, because there was no feed coming from the other side to pick up downstream customers.
Sometime afterward, in August 2012, another LIPA representative visited the site. Work had resumed, the crane was now situated on Fourth Street, and it was being used to lift loads over the energized, Fourth Street power line onto the construction site. Concerned that workers’ lives were in jeopardy, the LIPA representative told a supervisor of the crane company that the crane had to come down. The following day, LIPA issued a (second) “Cease and Desist” order. That order was lifted when the crane was moved back to Brooklyn Avenue, on which the line was de-energized.
The GC’s architect spoke with LIPA about relocating the Fourth Street line. The architect suggested that the masonry subcontractor work on the Brooklyn Avenue side of the building, but did not forbid them to work on Fourth Street while the power line remained “live.”
Although the architect would later testify that he didn’t think that anyone onsite fully understood the danger, or know how much current was going through the lines, or how far away workers had to remain to be safe, both the Cease and Desist order, and the Notice to Precede that lifted it, specifically stated that the lines carried 13kV.
OSHA did not inspect the site until more than three months later, in December 2012. By that time, the masonry sub had done some foundation work and steel erection, and was performing masonry block and concrete plank installation on the third floor. Although the crane was situated on Brooklyn Avenue, it was lifting the planks over the Brooklyn Avenue power line and brining them within 8’ of the still-energized Fourth Street line, before setting then down on the worksite.
The OSHA inspector informed the employer’s foreman that the Fourth Street power line represented an imminent danger, and asked that employees be removed from the hazard. He told the employer that the planks should not be installed, but staged outside the worksite, or installed at another part of the building, at a safe distance from the line. The subcontractor balked at the cost of returning the trucks with the planks to the manufacturer, and indicated that the subcontractor could not stage the planks outside the work area. It assured the OSHA inspector, however, that it would continue to set planks in other areas of the structure, but not encroach on the energized line. A number of violations were issued following this inspection.
No sooner had the OSHA inspectors left the site, however, the employer resumed installing planks along Fourth Street, up to and past the corner where the power line, on the out-of-plumb pole, now hung directly over the building. As the plank installation progressed toward the corner, the crane got progressively closer to the Fourth Street power line. The workers also continued to build the masonry wall at the corner of Fourth and Brooklyn.
As the wall rose vertically, it, too, got closer to the Fourth Street power line. Sometime after the first OSHA inspection, the masonry wall exceeded the height of the Fourth Street line. Because Pole #3 was out of plumb, the line crossed the plane of the wall. In order to be able to continue to build the wall, the subcontractor created a 5” x 5” hole for the line to pass through. As the line entered the wall, it was covered by some sort of insulation material.
When LIPA’s design engineer arrived at the site, and saw the wall built around the wall, he expressed astonishment that no one had been killed. He ordered work to be stopped and, concerned that work would resume once he left the site, he called the police to shut the site down. LIPA referred the matter to OSHA, which led to additional violations being issued. Violations issued separately to the two, related employers were consolidated, upon which they numbered two “Willful,” eleven “Serious” and one “Other-than-Serious” in all. “Willful” violations, of course, are those committed with “intentional, knowing or voluntary disregard” for the requirements of the OSH Act, or with “plain indifference to employee safety.” They carry monetary penalties of up to $70,000.00.
At the trial, it was estimated that employees had worked as close as four inches to the energized Fourth Street power line, and had phase-to-phase exposure because, while building the wall, they were working between the innermost and middle overhead power lines on the Fourth Street circuit. It was determined, also, that whoever installed the insulation sleeve on the line had to do so with their hands.
The ALJ dismissed as self-serving and not credible assertions by the subcontractor’s co-owner and primary witness that he was unaware, until the time of the second inspection, that the Fourth Street line remained energized, and that the wall was being built around it. OSHA had presented multiple options, as would have enabled the respondent to continue working, until problems with the Fourth Street line were resolved.
What the employer tried to characterize as merely “poor planning,” the ALJ found, was really a lack of care, as further evidenced by its repeated disregard of warnings concerning a potentially fatal hazard, its resumption of work close to the line after promising the OSHA inspector that an adequate clearance would be maintained, and the necessity to issue three “Cease and Desist” notices — and even to obtain police intervention — to ensure that the employer discontinue its hazardous activities.
The “Willful” violations were affirmed, as were a dozen lesser violations, and penalties aggregating over $175,000.00 were imposed. This ALJ decision is pending Commission review, but, based on the egregious facts, I will be amazed if the “Willful” characterization of the violation for working so close to an energized power line is disturbed.