Case History 75
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[00:00:00] Liz: Welcome to the GBA case history series brought to you by the GBA podcast. My name is Elizabeth Brown and I'm the principal geotechnical engineer at JLT Consultants.

[00:00:10] Abi: And I am Abi Corbett, a project consultant at SME. Today we're gonna dive into a fascinating scenario involving A GBA member firm. A surprise safety inspection. And a really contentious dispute over how you handle drilled shaft excavations. It's gonna be quite the story.

[00:00:30] Liz: Absolutely. This particular case, which is actually documented as GBA case history number 75. Is a perfect example of just how complicated site safety can get, especially when you factor in the authority of occupational safety and health inspectors.

[00:00:48] Abi: All right. Let's paint a picture of the situation. What was the GBA member firm doing on the project in the first place?

[00:00:56] Liz: Well, the firm was hired by the CEO of a [00:01:00] company that, you know, they develop and own and manage like shopping centers and malls and things like that. Their job was pretty specific. They needed to observe the construction of drilled shafts. These shafts were essential for the foundation of this new addition to one of these shopping centers.

[00:01:17] So the member firm actually sent some of the really experienced people to the site. These folks really knew what they were doing. They had lots of experience of following all the right procedures for observing drilled shaft installation.

[00:01:32] Abi: And how exactly were they doing these observations, especially when it comes to those drilled chefs.

[00:01:38] Liz: That's a great question. Their inspector actually had to be lowered into and lifted out of a drilled shaft excavation. In order to do that, they were using a crane. Now this crane was also being used for other things on the construction site, like moving materials , and other, items.

[00:01:58] So everything seemed to be [00:02:00] going smoothly, like there was no red flags. Until, a state occupational safety and health inspector just showed up to the site unannounced, and they wanted to check out the work practices that were going on the site.

[00:02:16] Abi: That's usually where things start to go downhill, as the case put it. What happens next after that inspector showed up?

[00:02:24] Liz: So after being on site for only an hour, the inspector dropped a huge bombshell on the member firm site team leader. They said that the state agency was gonna issue unsafe work, practice citations, not just to the contractor in charge. To the crane operator and to the member firm itself.

[00:02:48] Abi: Geez. What were the specific things they're even getting cited for? What are the allegations?

[00:02:54] Liz: So the member firm was cited for two main things. They were working within [00:03:00] the swing arm radius of an un-barricaded crane, and they were using improper drilled shaft excavation entry procedures.

[00:03:10] Abi: That must have been a shock, especially for a firm that probably prides itself on safety. How did the member firm react during that initial meeting with the inspector?

[00:03:19] Liz: They reacted pretty quickly. The firm's project manager and their corporate safety officer immediately asked for specific details about the regulations governing drill shaft entry. While the inspector's response, he was blunt, he said that the state had no reason to develop any drill shaft regulations because in his view, entering a drill shaft excavation was inherently an unsafe act.

[00:03:49] So the firm just shouldn't have been doing it at all.

[00:03:53] Abi: Wait, the inspector basically thought the act of going into the shaft was unsafe, [00:04:00] period. Regardless of how they did it.

[00:04:02] Liz: Exactly. So the firm's project manager, trying to be the good guy here, right? He's trying to explain that their personnel had to enter the shafts to even do their job. Then the firm's corporate safety officer stepped in and pointed out that their site personnel were following procedures from a specific publication called Downhole Entry Manual, recommended Procedures for the entry of drilled Shaft Foundation Excavations, which is published by ADSC, which is the International Association of Foundation Drilling. So they even told the inspector that these recommendations were considered generally accepted industry practice and how the inspector could get a copy of it.

[00:04:48] Abi: That sounds like a pretty good defense to me. I mean, they're citing industry standards. What was the inspector's reaction?

[00:04:55] Liz: Well, the inspector initially said he would research the topic, [00:05:00] but about a month later when he contacted the firm's corporate safety officer, again, he informed them that the firm would be receiving a formal citation and notification of penalty. And get this, the initial proposed fines were pretty hefty.

[00:05:16] They came in at just under 30 k.

[00:05:19] Abi: Whoa, that's a serious amount of money. Do you have the breakdown of the fines for us? Like what were they specifically?

[00:05:28] Liz: Oh, you bet. So the breakdown of the fines, which totaled $28,150, was as follows. So they had six citations for using an improperly constructed bosun chair. So a bosun chair, it's a device that they used to suspend a person from a rope so that they can perform their work.

[00:05:49] So this bosun chair actually note here, was built by the crane operator. So the member firm had nothing to do with it except for to use it to do their [00:06:00] job. So that fine was $9,000. They had two citations for failing to detect the improperly constructed chair. That was another $4,500. There was three citations for failing to train site personnel in the proper use of the bosun chair, so that's another 4,500.

[00:06:25] Then one citation for using a crane without barricading its swing arm radius. That was a hefty $5,250 fine. Two citations for simply using a crane to lower and raise an employee into and out of the drill shaft excavation another $4,500. And finally, one citation for failing to conduct a health and safety Inspection of the site was a smaller but still significant.

[00:06:55] $400 fine.

[00:06:57] Abi: Man, so [00:07:00] grand totaled. Just under 30 grand. That's a huge hit for any firm. How did the member firm safety officer react to the specific citations, especially the part about the equipment they didn't even build?

[00:07:13] Liz: The safety officer was, as the source describes, furious but measured. He argued that the firm had no control over construction of the chair, so it was completely unfair to hold them responsible, but the inspector's response was quite matter of fact. Quote, if the firm was using the equipment, the firm was responsible for all aspects of it.

[00:07:40] He just wasn't going to budge on the bosun chair citations.

[00:07:46] Abi: Well, what about the crane issues? That seems like a pretty fundamental part of the job.

[00:07:52] Liz: The safety officer was really upset about the crane citation too. He emphasized that working within the crane's [00:08:00] swing arm radius was absolutely essential because otherwise the drilled shaft inspector couldn't be lowered into or lifted out of the excavation. Regarding the barricading, he argued that it should have been the crane operator's responsibility for all operations.

[00:08:15] Not just the few times the inspector was involved, but the inspector was equally dry in dismissive saying It's your employee, your responsibility for his safety. That means you are responsible for ensuring that others on the site do what they're supposed to do. So pretty harsh. When the safety officer asked how they were supposed to do their job without working within the cranes radius, the inspector just shrugged it off saying, that's your problem.

[00:08:49] Abi: Talk about frustrating. It sounds like that inspector was not willing to really listen to practical reality. What about the main point, the drilled shaft entry [00:09:00] procedures, especially since they were following that manual.

[00:09:04] Liz: Yeah, so the safety officer was absolutely incredulous on this point. He argued it was totally improper to hold the firm liable for procedures that fully complied with ADCs recommended practices document, especially since neither the state agency nor OSHA had any specific regulations for the practice.

[00:09:25] And the ADSE guidelines was, as he put it, the only generally accepted one. And here's the kicker. The inspector's reason for not even reviewing the ADSC guide, he said it costs $10 and he didn't wanna spend that much money on the issue. So he flat out reiterated that as far as he was concerned, the practices were unsafe no matter what the guidelines might have said.

[00:09:57] Abi: This is getting almost unbelievable. [00:10:00] They're basically facing like a brick wall. Did the firm decide that they're gonna fight the citations?

[00:10:06] Liz: Oh, absolutely. So the formal notification came out about a week later, and the member firm immediately filed for their intention to contest the citations and fines, asking for a formal hearing. Given the pretty negative relationship they had with the inspector, they realized that legal representation was going to be absolutely essential.

[00:10:29] Abi: Okay, so hopefully they did find a good attorney for this.

[00:10:32] Liz: Yes, thankfully. They reached out to peers and colleagues for recommendations and ended up retaining an attorney with extensive experience in occupational safety and health issues. The case history really emphasizes that the attorney's presence at the hearing made all the difference.

[00:10:54] Abi: That's often key in these situations. What was the actual outcome of this hearing though? Any good [00:11:00] news?

[00:11:01] Liz: Yes. Actually quite a bit of good news for the member firm, the Occupational Safety and Health Agency officer who presided over the hearing rescinded all citations associated with the bosun chair construction, barricading the cranes swing arm radius, and conducting an overall site safety inspection. She did refuse though to rescind the citations for failing to provide proper training and for permitting improper drilled shaft excavation entry procedures. But, she reduce their characterization from serious to other, which then significantly lowered the total amount of fees from that original just under $30k. It lowered it down to just $3,250.

[00:11:52] Abi: Whoa. That's actually a massive win, a huge reduction in fines, and a lot of those initial citations are just wiped away. [00:12:00] So looking back, what are the big actionable lessons that we could take away from this case history?

[00:12:07] Liz: I think that this case history really outlines five really important lessons for any firm. So number one is safety inspectors have significant authority. This is probably the biggest takeaway. Inspectors can be incredibly focused on worker safety and sometimes anything they think will improve safety seems justified to them, even if there aren't like specific regulations for it, and their findings can genuinely impact how the construction site operates.

[00:12:39] Number two, important lesson would be when in doubt discuss procedures with OSHA. So a lot of procedures that geoprofessionals perform on site, they really aren't covered by like super specific federal or state regulations. So there may be some gray areas there. It's kind of considered a [00:13:00] best practice to actually talk about appropriate procedures with your state or federal OSHA officials before you even start the site work. Lesson three is that experienced attorneys are great assets. This firm learned it the hard way, but having an ongoing relationship with an attorney experienced in health and safety regulations is absolutely crucial. The firm was lucky to find one when they needed one, but the advice from the source is clear. Do not wait for a citation to begin your search for a good lawyer. They were just lucky they found one. Right. All right, so number four, takeaway is train field personnel and proper response to safety violations.

[00:13:52] So your field staff are out there every single day. They see all sorts of things and safety violations by other parties [00:14:00] on site. They really need to have clear guidelines on how to respond, and especially depending on how serious or dangerous the violation is, you want them to be prepared for the situation.

[00:14:13] And the fifth main lesson learned is to be proactive about safety. You might want to consider hiring an independent safety inspector, maybe even someone who's a former state or federal health and safety inspector. You can have 'em come in, identify potential issues before they become citations or fines, or even slow down your project.

[00:14:36] Abi: Overall, those are some pretty incredible and practical takeaways for anyone in the industry. What were the actual comments from the member firm's rep looking back on this whole experience?

[00:14:49] Liz: The firms rep openly admitted that operations like drilled shaft inspection and observation inherently carry risks. They stress that anyone not familiar [00:15:00] with best practices should simply not offer to perform those services. They also mentioned that consensus type practices like ADCs have been developed, written down, and are constantly reviewed and updated.

[00:15:14] Crucially, they confessed "for the benefit of all parties. We would have been better off talking with the state occupational safety and health officials before rather than after" end quote.

[00:15:29] Abi: That really hammers in that preemptive communication is totally key.

[00:15:35] Liz: Oh, absolutely. Now, while they haven't actually changed their field procedures because of this incident, they now train more frequently and cover more topics, which they feel has really improved their field staff's overall safety awareness. And there's a really interesting reflection from them about inspector's intentions. They said that these inspectors do have employees' best interests at [00:16:00] heart, acknowledging that sometimes citations, even if they seem unfair, come from a place of wanting to prevent injuries. Their biggest lesson about dealing with the inspectors is that debating fairness issues with them is pointless because inspectors aren't allowed to resolve citations on a person to person basis.

[00:16:20] Their direct advice now is. If another OSHA problem arises, our first call will go directly to our OSHA attorney. Too much is at stake to do otherwise

[00:16:31] Abi: That's a powerful and very clear conclusion from the firm's perspective. It really highlights how important is to just be prepared, understand the system, and always have expert legal help on your side.

[00:16:46] Liz: Exactly, because as they point out, work stoppages can happen. The fines can be incredibly harsh. Records of sanctions can actually affect a firm's ability to get future projects, and even [00:17:00] worse, accidents almost always lead to bad publicity, which harms both their public image and the morale of their own employees.

[00:17:08] So being proactive about safety and having that legal preparedness is just non-negotiable.

[00:17:16] Abi: Now that's an insightful case history. It really offers some critical lessons for any firm operating in construction or really any high risk environment.

[00:17:28] Liz: And that concludes this episode of the Case History Series brought to you by the GBA podcast. I hope you're able to take away some useful information that will help you and others at your firm make good risk-based decisions in the future.