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OSHA Drops Citations in 2 Deaths

Wednesday, May 8, 2013

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Two workers asphyxiated in a manhole’s toxic atmosphere were engaged at the time in “construction,” not “general industry work”—a distinction that is likely to spare their employer federal confined-space citations, officials say.

The Occupational Safety and Health Review Commission has tentatively dropped two of three federal safety citations against S.J. Louis Construction of Texas, because the two victims are considered to have died during a construction project, even though most of the work had been completed, according to a pending Decision and Order by Judge Ken S. Welsch.

The ruling could have implications for the coatings and linings industry, as OSHA classifies painting as “construction work.” In addition, the workers were involved in relining (slip lining) a sewer line when they were stricken.

SJ Louis Construction
S.J. Louis Construction

SJL argued that it did not know the employees would enter the manhole, but the judge said the underground utility contractor, which employs more than 300 workers, should have known.

Welsch’s decision, issued March 23, is not yet final, pending commission review.

2 Deaths

The case dates from Nov. 3, 2011, when two SJL employees, including a crew leader, died after entering a manhole for an active sewer line without monitoring the atmosphere or wearing any protective equipment.

The workers were part of a sewer system project that began in July 2010. SJL had contracted with the North Texas Municipal Water District for the second phase of the project, after completing the first phase.

Phase 2 involved rehabilitating a line and some manholes, installing new manholes, and establishing odor control measures. As part of the project, SJL installed an inflatable plug in a pipe in February 2011 while relining a sewer line.

The project had a deadline of May 10, 2011, but the work was not completed until early September of that year. After that, the parties conducted a walk-through and developed a punch list of items to be completed.

Confined Space sign

OSHA's confined-space standards for general industry have not been extended to cover employees engaged in construction work, which includes painting, “because of unique characteristics of construction worksites.”

On Nov. 1, the water district asked SJL to locate and remove the rubber plug, if it was still in place, because residents were complaining of odors. The removal of the plug was not on the punch list.

Fumes and Warnings

On Nov. 3, the supervisor, who had been with the company for eight years, went to the manhole with a finisher and a helper, who were brothers. The three smelled fumes that caused the helper to cover his face with a handkerchief, authorities said. A sign at the manhole warned that the sewer line was active, but the crew removed the manhole cover.

The crew leader climbed in without any protection and was apparently overcome almost immediately. The finisher then sent his brother to the truck for a rope but, when the helper returned, he found his brother in the hole, also overcome.

When rescue crews finally arrived, they measured the air content at just 5 percent oxygen and 60 ppm for hydrogen sulfide. An atmosphere with either less than 6 percent oxygen or hydrogen sulfide levels above 10 ppm can kill within minutes, the ruling said.

Serious Violations

OSHA cited SJL for three serious confined-space violations in the two deaths and fined the contractor $20,790 ($6,930 for each citation).

OSHA argued that SJL had completed construction and that removal of the plug was maintenance work, which would fall under general industry standards. SJL, however, contended that the work was construction, even though the line had been installed, because the project was not yet complete.

SJ Louis Construction
S.J. Louis Construction

The decision tentatively drops two citations and reduces the fine on the third.

The difference is critical for regulators: Confined-space standards outlined in OSHA §1910.146 for general industry have not been extended to cover employees engaged in construction work “because of unique characteristics of construction worksites,” OSHA has said. OSHA lacks specific confined-space standards for construction.

OSHA defines “construction work” under 29 C.F.R.§1910.12(b) as “work for construction, alteration, and/or repair, including painting and decorating.”

In the SJL case, “work that involves upgrading existing equipment such as relining (slip lining) an existing sewer line is considered ‘alteration work’ and therefore, construction work,” the commission said.

Citation Upheld

On the other hand, Welsch's ruling does hold SJL responsible for “vague and ambiguous” directions that allowed the supervisor and finisher to enter a confined space without training, protection, monitoring or an escape plan.

A company official testified that he had directed the Project Coordinator to instruct the crew leader “to run by there and take a look, find out where the plug is, find out what we needed to do to get in there, and we would schedule a crew to do it.”

SJL argued that it did not know the employees would enter the manhole, but the commission said the underground utility contractor, which employs more than 300 workers, should have known.

In fact, the ruling noted, the crew leader had asked the Project Coordinator if he would need to enter the manhole, and the coordinator said, “I don’t know.”

Manhole training film
opensesame.com

A training film warns of the dangers of hydrogen sulfide, a toxic gas commonly produced in sewers. Despite its well-known "rotten egg" smell, the gas is odorless—and quickly fatal—at high concentrations.

The company “clearly recognized the potential hazards of H2S toxicity and asphyxia from low oxygen levels inside a manhole for an active sewer line,” the judge wrote.

"Because of [the supervisor’s] vague and inadequate instructions, it was foreseeable that the crew leader would enter the manhole without adequate precautions.” Thus, Welsch upheld the citation for failing to ensure evaluation of a permit-required confined space and to implement measures to prevent unauthorized entry. However, he reduced the fine for the citation to $5,000.

OSHA History

Founded in 1983, SJL is a general contractor specializing in underground utility, tunneling and earthwork services, with private and public clients nationwide. S.J. Louis of Texas is the company’s Southern division, specializing in in large-diameter, underground pipe installation.

The company has a history with OSHA. OSHA records show 22 inspections of SJL job sites in the last 10 years, with citations issued on 15 of those occasions.

SJL also had another fatality in 2009. In that case, the worker, 43, was attaching a chain sling to a street plate that was erected between two trench shields. While the excavator bucket was holding the plate at an angle, mud and soil fell from inside the bucket, hitting the employee and causing him to fall into the trench shield, where he struck his head on the shield’s bottom spreader.

OSHA initially cited the company for three violations and issued $12,000 in fines. The case was later settled for one serious citation, one other-than-serious citation, and $5,000 in fines.

Other cases were also significantly reduced. In 2012, for example, the company was issued one repeat and one serious violation for protective equipment and fined a total of $45,500. The repeat citation was later dropped, however, and the entire case settled for $4,000.

In another case, in 2010, OSHA issued 10 serious and two other-than-serious citations and proposed fines totaling $51,000. The case was eventually resolved at three serious and four other-than-serious violations and a fine of $29,500.

   

Tagged categories: Accidents; Confined space; Construction; Exposure conditions; Fatalities; Government; Health and safety; Laws and litigation; OSHA; Painting Contractor; Sewer systems

Comment from josh hutcheson, (5/8/2013, 8:45 AM)

some of these contractors just see this as another cost of doing the job and and do not care about doing the right thing to protect the employees life the fines are not enough to change their mind set just pay it and lets get back to work (so sad)


Comment from Tony Rangus, (5/8/2013, 11:01 AM)

The company is 100% responsible for the worker deaths, and should be held criminally responsble in addition to much, much larger fines. Arguing it was "construction work" & therefore not required to meet confined space is in itself criminal. The company needs to be seriously burned.


Comment from Car F., (5/8/2013, 12:54 PM)

Potato, potahto, tomato, tomahto! "Construction work", "general industry work" either way the workers are dead and their families devastated, while the criminals responsible for it are free: industrial crime is out of control and the criminals are getting away with it in America. Poor and uneducated shoplifters get harsher penalties than irresponsible and crooked businessmen who kill workers.


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