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INSIGHTS

THE MANY FACES OF CRM


Hard Hat Archaeology

Charles M. Niquette


There is no question that maintenance of worker safety in both the office and the field is a good business practice. Despite this, many practitioners in the field of cultural resource management have little concept of Current Occupational Safety and Health Administration (OSHA) requirements and standards or the implications for failure to comply. OSHA regulations affect all members of the cultural resources contracting community through enforcement actions by federal or state OSHA officials, by contract specifications, client and/or insurance company requirements, and/or in labor relation agreements. Failure to comply with OSHA regulations can be an expensive proposition and could result in the closure of your business. The purpose of this article is to provide a case example of my company's brush with OSHA. In so doing, I hope to educate the reader and to encourage others to take the steps necessary to achieve voluntary compliance. The alternative can be devastating both through employee-related catastrophes and by financial penalties.

In October 1995, my field crew was subject to an Indiana Department of Labor's Occupational Safety and Health Administration (IOSHA) inspection while working on the floodplain of the Ohio River near the state boundary between Ohio and Indiana. The probable catalyst for this inspection appears to have been a call from an adjacent landowner who was unhappy with my client for a variety of reasons. As a result of this inspection, my firm was levied $11,500 in fines for five violations that were termed "serious." The inspector identified the following violations:

(1) 29 CFR 1926.100(a): Employees were not protected by protective helmets while working in areas where there was a possible danger of head injury from impact from falling or flying objects, or from electrical shocks and burns. The Safety Order was specific that employees were working in a backhoe trench that was 150 ft long and 7 ft 4 in deep.

(2) 29 CFR 1926.651(2): A stairway, ladder, or other safe means of egress was not located in trench excavations that were 4 ft (1.2 m) or more in depth so as to require no more than 25 ft (7.62 m) of lateral travel for employees. The inspector was quite specific about the nature of this violation. He indicated that a second trench measuring 250 ft long, 7 ft 4 in deep, 12 ft wide at the top, and 4 ft wide at the bottom, did not include a ladder. Employees were required to climb the sides of the trench or to travel approximately 45 ft from the work area for egress.

(3) 29 CFR 1926.651(j)(2): Protection was not provided by placing and keeping excavated or other materials or equipment at least 2 ft (.61 m) from the edge of the excavations, or by use of retaining devices that were sufficient to prevent materials or equipment from falling or rolling into excavations, or by a combination of both if necessary. This violation referred to the fact that the excavated spoil from the trench was piled up to the edge of the trench.

(4) 29 CFR 1926.652(a)(1): Each employee in an excavation was not protected from cave-ins by an adequate protective system designed in accordance with 29 CFR 1926.652(c). The employer had not complied with provisions of 29 CFR 1926.652(b)(1)(I) in that the excavation was sloped at an angle steeper than one and one-half horizontal to one vertical (34[[ring]] measured from the horizontal).

(5) 29 CFR 1926.652(f): Employees were permitted to work on the faces of sloped or benched excavations at levels above other employees when employees at the lower levels were not adequately protected from the hazard of falling, rolling, or sliding material or equipment. Despite the fact that our trench was stepped with 4 ft horizontal faces for each 4 ft of vertical depth, one employee was digging a hand excavated unit in the bottom of the trench, while another employee screened the fill from this unit on the next higher bench in the trench. The man in the bottom trench was not wearing a hard hat.

For those who have been educated on OSHA's standards, these violations will make sense. For us, however, the standards seemed overly cautious and certainly more involved than we realized. My firm, like many others, had been working with safety officials from the Corps of Engineers and various departments of transportation for years. While we were not certain regarding OSHA requirements, we simply assumed that we were working within compliance (e.g., stepping our trenches). Obviously, we had a lot to learn and no convincing defense could be constructed to dissuade the inspector from doing his duty.

Violations that were termed "non-serious," but for which financial penalties were imposed, included the following:

(1) 610 IAC 4-4-2: A copy of the log and summary of occupational injuries and illnesses (OSHA Form No. 200 or equivalent) was not available and current to within 45 calendar days at the establishment.

(2) 29 CFR 1926.59(e)(1): The employer did not develop, implement, and maintain at the workplace a written hazard communication program that described how the criteria specified in 29 CFR 1926.59(f), (g), and (h) would be met.

(3) 29 CFR 1926.59 (g)(1): The employer did not have a Material Safety Data (MSD) sheet for each hazardous chemical that they used.

(4) 29 CFR 1926.59(h): Employees were not provided information and training as specified in 29 CFR 1926.59(h)(1) and (2) on hazardous chemicals in the work area at the time of their initial assignment and whenever a new hazard was introduced into the work area.

This second group of violations reflects the inspector's attempt to impress on us the serious need to comply with OSHA standards for employee training and written compliance programs.

The inspector went over each of the violations with my field supervisor and said that the home office would receive a certified letter containing the Safety Order and Notification of Penalty in the near future. He also strongly recommended that we call his office and request an informal conference when we received this notification. Two months later the certified letter arrived.

The Safety Order stated that inspection of our job site revealed conditions that IOSHA believed did not comply with the provisions of the Indiana Occupational Safety and Health Act (Indiana Code Chapter 22-8-1). Again, the letter advised that an informal conference was possible to "settle any potential dispute without initiating the more elaborate proceedings brought on by a petition for review." I was given 15 days to request the conference. When I did so, the IOSHA representative advised me that payment of the fines at the informal conference might prove to be less expensive in time and money than trying to fight the citation in court.

Accepting IOSHA's offer of an informal conference, the project field supervisor and I traveled to IOSHA's offices in Indianapolis. During the course of the conference, we were sternly lectured about an employer's responsibilities, the importance of OSHA compliance, and the need to provide a safe and healthy working environment for our employees. After much fruitless discussion about the nature of archaeological fieldwork, the inapplicability of holding us to construction standards, pleading of innocence, and promises to bring the company into compliance, the fines were reduced to only $500--which I paid with great relief. None of the violations was waived. Because of this experience, I was warned that "you are now in our computers as having been found guilty of these violations. If you are cited again you should not expect leniency."

Since this incident, my company has undergone what can best be described as a corporate lifestyle change. I contracted with a private firm that specializes in health and safety training to provide the training required by OSHA as it applies to our discipline. This firm also drafted written programs required for compliance. In addition, we contacted OSHA's education and training outreach department and have since participated in numerous voluntary training sessions. This effort has led to a heightened corporate awareness of safety in the workplace and the need for continuing education for all company personnel. A short list of such training includes first aid/CPR, hazard communication, respiratory protection, blood-borne pathogens/biological hazards, personal protective equipment, lockout/tagout, electrical hazards, fall protection, confined spaces, excavation, and trenching. At all of our job sites where National Register evaluations or mitigation excavations are the focus, weekly safety meetings and daily boot, hard hat, and competent person inspections are not only the norm, but are documented. Remember, if it is not in writing it doesn't exist for most OSHA inspectors. While some of this (such as the hard hats) is not required in every situation, it is easier to do more than is required, as company policy, than it is to rely on the individual judgment of a field supervisor. We have also requested voluntary inspections of our job site by IOSHA. These inspections have served to emphasize safety concerns for all our employees, provide me, as the employer/owner, with some level of comfort that we are in compliance, and demonstrate a good-faith corporate effort to comply with the appropriate OSHA officials.

Chemical, physical, and biological hazards are not limited to fieldwork where trenching and confined spaces present obvious hazards; they also occur in the office. One of the first things we did was to inventory all of the chemicals we had on hand and to decide which of these were needed and which were not. Arrangements were made with a certified subcontractor to properly dispose of those that were not needed, and MSD sheets were collected for those that were retained.

It is not an inexpensive proposition to bring an average CRM firm into compliance. Basic training of employees and preparation of written programs are perhaps the least expensive items, but even this easily costs in excess of $10,000. If you add salaries and wages, overhead, and the loss of hourly time during which employees could otherwise be working on projects for which clients could be invoiced, the numbers begin to soar. Add in those training sessions that require more than a day away from regular job-description tasks and you are talking about a serious financial commitment. Nevertheless, it is the cost of doing business.

Not long after my encounter with OSHA, I posted a description of what had happened on the listserv of the American Cultural Resources Association (ACRA-L). The discussion that ensued was most enlightening but was certainly not limited to representatives of ACRA member firms. It provided a number of personal stories, comments, and observations from archaeologists and other practitioners within the greater discipline of cultural resource management. Many readers provided examples of common infractions encountered throughout the discipline: several people referenced photographs of field crew members at the bottom of deep "telephone booth" excavations, while others noted that it is not uncommon to see slides at any conference of crews working in very deep trenches and pits without adequate shoring, let alone hard hats. A faculty member from a well-known university told me privately that the anthropology faculty and staff warn anyone who must be in the vicinity of a chemical storage area against staying too long, and to leave if their skin turns bright red and burns, or if they get a bad headache and are sick to their stomach. The symptoms dissipate with time and in fresh air, but they come on more quickly with repeated, prolonged exposure. Yet another pointed a finger at university field schools where students were sent to work in deep excavations or other potentially dangerous situations.

There are other examples of situations in which OSHA had issued citations. One commentator described how his personnel had been through all of the required training, had hard hats, ladders in place, etc., but that the field supervisor had decided that hard hats were uncomfortable and weren't necessary--on the very day the inspector arrived. This particular company was cited for several of the same violations as my company, and, although the fines were abated, the final cost was still more than I was required to pay. Someone else explained how they had been cited for failing to provide hygienic, disposable drinking containers.

Perhaps the most interesting comment came from an ACRA-L participant who had taken the time to write OSHA to explain that compliance with portions of the construction standard would actually damage the very resources they were hired to study. A year later, she received a response saying that her letter had been forwarded to Washington for consideration. Nothing more was heard from OSHA.

OSHA compliance is an ongoing process that requires the attention of all employees and constant review by management personnel. In retrospect, and with the crystal-clear vision of looking back on my experience with OSHA, I feel that I was extremely lucky. Have you ever considered what might be the nature of the fluid in the whole bottle recovered from an excavation? Pause for a moment and think about the acids and corrosive chemicals conservators use in different laboratories around the country. How many conservation labs really are in compliance with the appropriate safety standards? How does one excavate a massive storage pit, perhaps a kiva, or another similar large, deep, prehistoric feature, and do it in a way that complies with OSHA standards? Can it be done? In some cases, I do not think that it is possible, particularly when an excavation is deeper than 4 ft, cannot be shored according to the standards, must remain open for more than 24 hours, and the walls begin to check, split, exhibit fissures, and reveal the normal signs of soil drying.

OSHA regulations are intended to ensure that workers are provided with a safe and healthy working environment and, with a few exceptions, are not difficult for CRM firms to implement. If FEMA can take archaeology into consideration after the recent great flooding along the Mississippi, it seems to me that we ought to be able to work with OSHA and resolve those few problem areas that remain. To this end, the SAA, ACRA, SHA and other organizations, perhaps in cooperation with the Corps of Engineers, the National Park Service, and the Forest Service, should attempt to enter into a dialogue with OSHA. If realistic archaeological workplace safety standards could be developed and presented to OSHA, I am certain that we would all profit from the effort. Most importantly, we could pursue the investigations for which we have been hired in a manner that reduces or eliminates risks to all employees.

Charles M. Niquette is the owner of Cultural Resource Analysts in Lexington, Ky.

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