Is industrial painting maintenance work or construction work?
The answer will cost a New York industrial painter $4,200.
The question is at the center of a recent court ruling that upheld the fine and accompanying citation by the Occupational Safety and Health Administration.
|Public Utilities Maintenance Inc. specializes in painting of energized towers and poles.|
The company, founded in 1992, performs painting for the electric, gas, communication, water and fuel industries and boasts on its website that its management team has “over 100 years combined experience working on and managing painting projects on energized (69kV to 1,000kV) towers and poles.”
“PUMI was dismayed to learn of the Second Circuit’s decision upholding the OSHA citation and fine,” company vice president John Bortolis wrote in an email. “We fought long and strenuously against the citation and fine, and unfortunately, the Court’s decision doesn’t begin to present the entire picture regarding the Company and its impeccable safety record.”
Bortolis added: “Prior to the accident involving Mr. Mejia, the Company was entirely accident-free; and since the accident, the Company has maintained its spotless safety record. The Company intends to continue to comply fully with all governmental regulations concerning its work.”
Electrical Tower Painting Accident
In 2008, a PUMI painter, Carlos Mejia, received a shock while painting an electrical tower in Belchertown, MA. Mejia survived the accident, but OSHA issued citations against PUMI for two serious violations and an $8,400 fine.
One citation was later dismissed and the fine halved. These were upheld Dec. 31, 2009, by the Occupational Safety and Health Review Commission, an independent agency that handles OSHA appeals.
PUMI then took the case to court, arguing, among other things, that the company was not covered by the relevant regulation [29 C.F.R. § 1910.269(l)(2)], which establishes “minimum approach distances” (MAD) for employees working close to energized parts, unless the employee or part is insulated.
PUMI noted a 2003 OSHA directive—issued to assist agency inspectors of power generation, transmission and distribution facilities—that stated that "a complete repainting job... on a major portion of a structure" should be considered construction work.
However, the Review Commission’s Administrative Law Judge had ruled that while painting performed as a part of a construction project would be considered construction, painting performed as maintenance would not be. And this project, the ALJ found, was maintenance.
The court agreed, saying the commission had long interpreted the regulatory definition of construction work as “actual construction work or … related activities that are an integral and necessary part of construction work. Activities that could be regarded as construction work should not be so regarded when they are performed solely as part of a nonconstruction operation."
It also noted a 1999 opinion letter from OSHA's Directorate of Construction that expressly addressed the question of whether painting a power pole is maintenance or construction. The letter stated “that such work is maintenance, even if performed at 10- to 20-year intervals, as in this case.”
Finally, the court noted that PUMI’s own safety guidelines require that employees comply with the standard the company was challenging.
The court also rejected PUMI’s contention that it had not known about the so-called “violative condition.”
On the morning of the job, the court noted, although the towers to be painted “posed a special danger,” supervisors gave painters only “a general instruction regarding the MAD requirement and relied on them to determine if the tower was safe to paint.”
The court also noted that although the company’s safety plan required an observer on each tower being painted, one foreman was assigned that day to monitor both towers—and that “the designated observer was himself tidying up his truck instead of observing either team.”
Even if the foreman had told painters about the three-foot requirement under the MAD rule—the foreman says he did, but other painters said only that the rule was discussed—the painters were still left to determine, without measuring devices, “what parts of the towers were too close to the energized parts to be painted safely.”
Furthermore, the court noted that PUMI’s safety plan requires the foreman and painting crew “to assess and document whether a tower could be painted without encroaching on the MAD.”
On this project, however, no assessment was performed, “even though one beam of the tower came so close to an energized loop on the tower that it simply could not be painted in its entirety without violating the MAD requirement and another came within 58 inches of the same loop.”
PUMI also sought to rely on the defense of “unpreventable employee misconduct,” saying that the company “took reasonable steps to monitor for unsafe working conditions,” that Mejia was an experienced painter and crew leader who should have known the dangers involved, and that “constant supervision” of his work was unnecessary.
The court rejected that argument as well, citing “substantial evidence” that the company’s safety plan “was not adequately implemented in this case.”