Interesting Bill in Congress Imposes Prison Term for Safety Violations

I got tipped off about HB 2067, introduced by California U.S. Rep Lynn Woolsey, from Finance-Commerce.com.   Styled the “Protecting America’s Workers Act,” the bill’s summary explains that it would let the Occupational Safety and Health Administration (OSHA) enforce stiffer penalties for willful safety violations that result in serious injury or death.”

What kind of stiffer penalties?    Well, many are concerned that the bill could extend criminal liability to foremans, superintendents and safety directors within an organization.

Is this a serious problem?   Will this bill gain traction?

The folks at 16deathsperday.com would argue the problem is serious, and certainly hope that the bill moves through congress.    According to the organization, 16 workers are killed each day in the United States “because of reckless negligence on the part of their employers.”

If HB 2067 becomes law, and this organization’s numbers are correct, that could expose employees and owners to stiffer penalties and possible criminal sanctions 16 times per day.

Track the bill over at OpenCongress.org here, and stay tuned to the Monitor for future updates if this thing gets pushed through.

Are Washington Cranes and Crane Operators Ready for New Regulations Starting in 2010?

Most in the Pacific Northwest should remember the 2006 crane collapse in Bellevue, WA that killed a Microsoft employee.   What many might not know is that in response to the collapse, the 2007 Washington State Legislature increased the state’s regulation of cranes and crane operators.    Compared to other states, the Washington regulations are quite extensive, Washington being only the 2nd state (California) to have licensing requirements for cranes and crane operators.

The question is whether the state is ready for the January 1, 2010 effective date for the new regulatory scheme.   With the effective date only days away, Labor & Industries is worried that the answer is no.

The Puget Sound Business Journal reports that as of December 22, 2009, less than 10% of cranes have been certified.  Fortunately, the lag seems isolated to the certification of the cranes themselves, as the crane operators have mostly become compliant.   ENR.com reports that as many as 2000 crane operators have received their licenses.

What You Need To Know

Labor & Industries has issued WAC, Part L, §§ 296-155-525 through 296-155-533 setting forth the certification requirements for cranes and crane operators.

Here are three critical things to keep in mind:

Cranes Must Be Inspected

Every crane used in Washington construction projects must be inspected by a certified inspector (see below).   The general guidelines for a crane inspection are set forth in WAC 296-155-53200, which among other things requires review of the crane’s maintenance records, safety devices, wire rope in light of manufacturer’s specifications, and the performance of load tests.

Inspectors Must Be Certified

Not just anyone can inspect Washington cranes and certify them…the inspectors themselves must be first certified by Labor & Industries.   Becoming a certified inspector of cranes not only requires properly applying for the license, but a mixture of know-how and experience with cranes, and passing examinations.

Crane Operators Must Be Licensed

In addition to the cranes themselves being subject to a strict inspection process, those in charge of operating the cranes are also regulated by the new provisions, and must have a license starting January 1, 2010.   The crane operator requirements are found within WAC 296-155-53300.   The regulation requires operators to:

(1) Pass a substance abuse test;

(2) Have a specific number of hours of experience in operating cranes; and

(3) Hold a valid crane operator certificate for the type of crane being operated, issued by a crane operator testing organization accredited by a nationally recognized accrediting acgency, which includes a successful passing of a written and practical examination.

#1 and #2 are non-ambiguous requirements.   #3, however, can be subject to interpretation and circumstance.    The Division of Occupational Safety and Health issued DOSH Directive 8.60 on December 23, 2009, to address this requirement.   The Directive states in its § IV that:

[I]f compliance staff encounter crane equipment in use for which there is no nationally accredited operator written or practical test established and the equipment is operated by a non-certified operator, the CSHO shall not cite the employer for a violation of WAC 296-155-53300(1)(a).  Instead, the CSHO shall include a message on the citation or notice issued advising the employer that once an appropriate certification is avaialble as described in the rule that the employer has one year to ensure that such non-certified crane operators become certified.   The employer will be allowed to continue operating the crane provided the employer makes documentation readily available to the department indicating that the operator has been competently trained, evaluated and tested by the employer on the operating procedures for the piece of equipment in use as recommended by the crane equipment manufacturer.

Certainly, we’ll soon run into questions about what is “competent” training, evaluation and testing…  For now, however, the most important issue is getting your crane certified and your operator in compliance with the new WAC requirements.   Starting January 1st, Labor & Industries will be checking projects for compliance, and in these times when margins and schedules are tight, a L&I violation on these new crane requirements is something worth avoiding.

Check out International Union of Operating Engineers, Local 302, announcement of the Rule Change, which has some usable information, and a “Crane Operator Experience Declaration Form.”  This form is to be signed by crane operators, who will declare their pre-2010 experience with a specific crane to employers.

This article was originally posted on Wolfe Law Group’s topic-specific Northwest Construction Law Blog.