State pressuring contractors to hire 'competent person' to enforce safety

September 17, 1990|By Michael K. Burns

The 16-foot-deep sewer line trench, its earthen walls braced only at the bottom by flimsy plywood, looked like a death trap that drizzly May morning to Paul Stroessner, engineering consultant for the State Highway Administration.

He told the foreman to get workers out of that trench beside the Lanham-Severn Road in Lanham. But an hour later, project superintendent Michael Lee overruled the decision and ordered his employees back into the pit.

Mr. Lee insisted that he knew the trench was stable and would not cave in because he was a civil engineer with advanced geotechnical experience. Only an order from the developer forced him to remove men from the treacherous pit that morning.

The contractor, Danis Industries Corp., paid a $12,100 fine to the Maryland Occupational Safety and Health agency for the "willful" safety violations -- reduced from almost $21,000 during negotiations -- and fired the superintendent.

MOSH did not insist that the supervisor be discharged. But the company was charged with failure to use a "competent person" to implement a safety program and to make inspections of the excavation under a new program to reduce trenching and other construction accidents.

Since January, MOSH has issued more than 100 citations to construction companies for failure to employ a "competent person" to enforce safety regulations. Almost all of them stemmed from inspections before an accident occurred.

Almost half the cases involved violations on excavation jobs.

"We see the requirement for a competent safety person on the scene as an effective tool to force continuing compliance by contractors," said Craig Lowry, enforcement chief for MOSH.

Too often, he said, contractors who are cited for unsafe conditions finally pay the fines after the project is finished. The basic problem, faulty safety supervision, is not corrected, he said.

"Lots of employers simply say: 'I don't understand the standards.' This way, we are forcing them to look at their safety programs and to make effective changes in the way they do business," he said.

The "competent person" requirement has been in state and federal job safety laws for years but has seldom been applied. Instead, the agency issued citations based on the unsafe condition itself.

Maryland's safety office decided to start using the rule "as a way to get the attention of the industry in preventing fatalities," Mr. Lowry said.

The problem is particularly acute in trenching operations, where supervisors must be able to analyze the type of soil and determine the appropriate safety precautions, he said.

"Ninety-nine percent of the time, trenching fatals and injuries are due to non-compliance," he continued. "Usually that means the supervisor was not competent under the law."

Jay Matricciani, president of the Associated Utility Contractors of Maryland, said his company routinely used the most stringent protections in trenches to avoid possibledifferences of judgment with MOSH inspectors. Such protections includes use of steel trench boxes that shield workers, instead of shoring and bracing the earthen walls, he said.

"The biggest gray area is the 'competent person' requirement and determining just what has to be done," he said. His supervisors now fill out forms each day on details of the work they have done. "We've got to do this paperwork for our own protection," Mr. Matricciani said.

As for qualifying "competent persons" to meet the standard, companies are doing more training, and the Associated Utility Contractors is organizing informational programs on the issue.

The standard is controversial to some employers because it suggests hiring practices, rather than work practices, of employers.

Mr. Lowry insists that is not the case. "It doesn't mean that companies have to hire a safety director or an engineer -- having a safety director in the office isn't meeting the requirements of the law at the job site," he said.

MOSH is not evaluating the competence of supervisors in productivity, job experience or technical qualifications, but rather in terms of their safety management, he explained.

"It also doesn't mean that the supervisor is competent just because he is lucky and guesses right," Mr. Lowry said. MOSH inspectors have been told to examine the knowledge of supervisors where they find construction safety violations, he said.

MOSH does not require that individuals involved in violations be reprimanded or discharged, Mr. Lowry said. But the agency expects that employers have and implement a uniform disciplinary procedure for employee violations, he said.

Some companies are firing employees to enforce their safety programs -- and perhaps to convince the state agency that they have taken serious corrective action, he said.

Mr. Lowry recently conducted an inspection of a trenching case in Baltimore County that led to citations against a contractor for lacking a competent supervisor.

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