OSHA, State Oversight Questioned Following Boston Scaffolding Accident

Court rulings have left state inspectors powerless to enforce safety standards at construction sites like the one where three people died this week in a scaffolding accident, forcing Massachusetts to rely on a voluntary safety consultation program, state officials said.

The contractors at the 14-story Boylston Street site where the Monday’s accident occurred opted not to participate, said Robert Prezioso, commissioner of the Division of Occupational Safety, noting that his agency’s 600 inspections per year nearly always find hazards.

“How many ships does a lighthouse save? You can never say,” Prezioso said. “You can’t point to a number. Every hazard we find, I like to think, prevents injuries.”

Safety and oversight questions were raised after a 10-ton construction platform collapsed and crashed 13 stories onto the street below, killing two construction workers and a man whose car was crushed. The site is the future home of an Emerson College dormitory.

Killed were Robert E. Bean, and Romildo Silva — both employees of subcontractor Bostonian Masonry — and motorist Michael Tsan Ty, a Boston doctor.

Under the state’s free voluntary program, a company invites state inspectors on site and agrees to fix any hazards that are discovered.

Otherwise, spot inspections are left to the federal Occupational Safety and Health Administration, but critics say that can be infrequent.

The Emerson building — a combined dorm and campus center — has been under construction for nearly two years, but federal inspectors said they had not conducted spot checks before the accident.

“The recent inspections of those companies are not at that site,” OSHA regional spokesman John Chavez said of general contractor Macomber Builders and subcontractor Bostonian Masonry.

On Tuesday, the city’s Inspectional Services Department issued a “site safety” violation to Macomber Builders and demanded an explanation about what happened within 24 hours, ISD Commissioner William J. Good III said.

He said the city department’s role is to enforce building codes. Before Monday’s accident, city inspectors had not found building code violations at the site.

“The piece of equipment that fell is not regulated by the state building code,” Good said. “The general responsibility for that piece of equipment lies with OSHA.”

Macomber’s building permit is suspended until city inspectors approve its plan to ensure the public is not at risk.

The platform and scaffolding, which had been used to install a stone facade, were being dismantled around the 13th story when the collapse happened, fire officials said.

John Macomber, president and CEO of Boston-based Macomber Builders, did not return a call on Tuesday. He said Monday that the procedure was a “typically very safe way to work” and that there was an “extensive safety program inside the company.”

Bostonian Masonry co-owners John Topalis and Gerry McDonough, in a statement Tuesday, said safety is their “top priority…. And while it is the case that we have been cited for a limited number of violations of safety regulations in the past, this would be true of any company that is actively engaged in construction.”

Walpole-based Bostonian Masonry would not respond to questions about employee training.

The accident has prompted calls for better oversight. Cambridge Senator Jarrett Barrios, chairman of the Public Safety Committee, scheduled a hearing for next week to explore oversight options.

A spokesman for Boston Mayor Thomas Menino called on the state to find a way to restore its inspection program.

Prezioso said a 1992 Supreme Court ruling said state inspection orders are unenforceable because OSHA has oversight, Prezioso said. The state continued inspections, however, until its jurisdiction was successfully challenged two years later in a case decided by the state Supreme Judicial Court, he said.

If invited by employers, state inspectors conduct a “comprehensive investigation” and typically locate hazards, Prezioso said. The program is funded by OSHA and has been in existence for more than 30 years.

Chavez said federal law allows states to take over jurisdiction from OSHA, but that Vermont is the only New England state that has done that. California also conducts its own enforcement, he said.

Chavez wouldn’t comment on OSHA’s investigation, but noted that inspections aside, companies ultimately must ensure safety.

“It’s the employers responsibility to make sure when using this kind of equipment, that they observe all the safety standards related to this equipment,” Chavez said. “They have to make sure all the employees are trained for putting these things up, dismantling them.”

He disputed the allegation that OSHA only arrives after a workplace injury. “Any workplace in the country is subject to OSHA inspection at any time,” he said, adding that he did not have data showing the rates of pre-emptive inspections.

Chavez said 55 percent of OSHA inspections nationwide last year were spot checks. In OSHA’s annual top 10 categories of violations, scaffolding violations comprised the top spot, with 8,891 violations in fiscal 2005.

Macomber Builders has been cited by OSHA more than 10 times since 2004 including more than five citations for “serious” scaffolding or fall protection violations. OSHA defines a violation as serious if “there is substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard.” Bostonian Masonry also has a history of OSHA citations.