New Safety Rules: Will Your Upcoming Job Be Impacted?

OFFICIAL PUBLICATION OF THE ASSOCIATED GENERAL CONTRACTORS OF NEW YORK STATE WINTER 2017

JEFFREY J. ZOGG

WINNERS ANNOUNCED THE AGC NYS CONSTRUCTION INDUSTRY CONSTRUCTION INDUSTRY CONFERENCE LEGAL FUND XXXI SCHEDULE - PAGES 38-39 WHAT YOU NEED TO KNOW - PAGES 19-21

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New Safety Rules: Will Your Upcoming Job be Impacted?

Peter Simon JD, Safety Consultant & Risk Manager, Total Safety Consulting, LLC.

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ew York City has historically maintained a progressive building code that is continually adapted to protect life and property. This year the NYC Council passed a series of bills, known collectively as the Construction Safety Act, aimed at improving construction safety. These bills were part of a response to approximately 30 constructionrelated fatalities in 2015 and 2016 on NYC construction sites. Government agencies identified the majority of the fatalities as occurring on projects below 10 stories. One safety bill, now Local Law 81 of 2017, modified the NYC Building Code to require safety plans and oversight by a NYC Department of Buildings (DOB) licensed construction superintendent on certain construction projects below 10 stories. Generally, the new planning and oversight requirements apply to construction projects under 10 stories that are: new buildings, full building demolitions and certain alterations to existing buildings.

documents, verifying compliance with Chapter 33 of NYC Building Code (safety during construction operations) and performing construction superintendent duties defined in the NYC Administrative Code. A single construction superintendent can be designated on up to 10 active construction projects concurrently. The construction superintendent must designate a “competent person� for each site. The competent person is responsible for carrying out superintendent orders and must be present at the site while the work is occurring. The Local Law 81 definition of a competent person is similar to the OSHA definition of a competent person, an individual able to identify unsafe conditions with the ability to take prompt corrective action.

Required content for the site safety plan comes from the NYC Administrative Code, Building Code and NYC DOB requirements. Broadly, the aim of the safety plan is to require stakeholders to think about required elements and equipment placement during the construction process. Numerous academic studies have found that basic planning, such as location of equipment placement, reduces the probability of accidents compared to unplanned equipment placement. The safety plan is to be maintained on site and available for inspection by DOB inspectors. Projects are also obligated to update the safety plan as work progresses and conditions change. Projects that require a licensed DOB construction superintendent are required to have a site safety plan.

Requiring DOB licensed construction superintendents on certain projects below 10 stories is an effort to make a licensed individual responsible for safety related issues on a construction site. On certain projects below 10 stories, a single licensed superintendent must be designated. The licensed superintendent is responsible for visiting assigned sites each day while work is ongoing, maintaining a log, inspecting all ongoing work, verifying work compliance with the approved construction

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JOBS REQUIRING A SITE SAFETY PLAN & LICENSED SUPERINTENDENT: 1. The construction of a new building; 2. The full demolition of an existing building; 3. An alteration to an existing building that involves one or more of the following: 3.1 A vertical enlargement; 3.2 A horizontal enlargement; 3.3 The alteration or demolition of more than 50 percent of the floor area of the building during the course of work over any 12 month period; 3.4 The removal of one or more floors during the course of work over any 12 month period; 3.5 Work that requires a special inspection for underpinning; or 3.6 Work that requires a special inspection for the protection of sides of excavations; or 4. Other jobs that pose an enhanced risk to the public and property, as determined by the commissioner.

The licensed superintendent is also responsible for making notifications of unsafe conditions and taking actions that ensure correction of unsafe conditions. The superintendent must also make notifications to the NYC DOB in the event of certain specified conditions (for example a standpipe riser breach).

Additionally, superintendents must report to DOB accidents and damage to adjoining property. Superintendents are subject to disciplinary action pursuant to the NYC Administrative Code. In some instances, a superintendent could be subject to criminal prosecution. In 2016 the NYC District Attorney successfully obtained a conviction against an excavation foreman for Criminally Negligent Homicide & Reckless Endangerment arising from a construction operations fatality.

Currently, site safety plans below 10 stories do not require review by a credentialed design or safety professional. Review and approval of the site safety plans by a qualified credentialed individual brings accountability and critical quality control measures that help ensure the required content is included. Presently, site safety plans are not submitted for record with the DOB. The lack of a permanent record could be problematic in the event of a serious accident, and lack of an official record increases the opportunity for bad actors to try and “game” the system.

Tasking construction superintendents with special inspections is a step in the right direction, but often, superintendents feel overwhelmed by the volume of their other duties and some do ™ not feel qualified to perform specialized safety inspections. In many circumstances having a single superintendent on multiple projects (up to 10) while performing the required duties is not physically feasible or realistic, and could encourage feigned compliance.

Moreover, tasking a single individual with the pressures teams identify safety issues, assist safety-related decision of completing a job on time and within budget while also making and consequently improve the safety and health The NYC Council should certainly 10/18/17 be tasking the individual with safety inspections that might of all New Yorkers.

2017_MH&H_AGC_construction2_ad_cameraready.indd 1 interfere with production, could generate an inherent applauded for its efforts to increase the safety & health conflict of interest. Often superintendents appreciate a of all New Yorkers through the building code. However, third-party view from a safety professional that is focused there is still significant progress to be made on this front. solely on safety. NYC would do well to involve safety professionals that regularly assist production teams with Peter Simon JD, CSP is a safety consultant & risk manager in required safety inspections and safety-based decision NYC & Miami, FL with Total Safety Consulting, LLC. He is a making. A full-time safety professional might not make former firefighter and Certified Safety Professional. sense on all projects below 10 stories, but regular audits could be performed on higher risk projects at a nominal cost. Regular independent safety audits help production

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