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Drones and EHS Management Part 1: Agency Inspections

January 3rd, 2019 by Dakota Software Staff

Drones and EHS Management Part 1: Agency Inspections

Unmanned Aerial Vehicles (UAVs), commonly referred to as drones, have found many different commercial applications, from photography to parcel delivery. Now drones are being used not just to revolutionize certain industries, but to regulate them, as well.

Recently it was reported that OSHA has used drones to inspect nine facilities over the last year.

The revelation came from a memorandum obtained by Bloomberg Environment, which authorizes inspectors from the federal Labor Department's Occupational Safety and Health Administration to use camera-carrying drones as part of their inspections of outdoor workplaces.

While some will naturally find the concept of another "eye in the sky" unnerving or invasive, it should be noted that according to the parameters laid out in the memo, OSHA must obtain permission from the employer before conducting drone inspections.

Still, the expansion of drone usage by OSHA could be cause for concern among employers, as drone inspections could, by their very nature, uncover more violations than traditional inspections.

OSHA seeks to expand use of drones nationwide

OSHA performed unmanned aerial inspections nine times in 2018, most often in situations that would have been too unsafe for OSHA inspectors to enter. An oil drilling rig fire, a building collapse, a combustible dust blast, a chemical plant explosion and an accident on a television tower were among the dangerous worksite accidents investigated by drone inspections.

OSHA issued a memo to its staff early in 2018, which formalized the agency's use of drones for inspection activities and ordered each of the 10 regions to designate a staff member as an unmanned aircraft program manager, to oversee training requirements and evaluate the reports submitted by drone teams, according to EHS Today.

The memo also makes it clear that OSHA is investigating the possibility of obtaining a Blanket Public Certificate of Waiver or Authorization from the FAA, which would allow the agency to operate drones nationwide.

And while employers have to grant permission for the agency to perform the drone inspections, the expanded use of such flyovers could still force businesses to make some difficult decisions.

Though OSHA drone inspections have been limited to worksites, they could soon expand to other facilities

Although inspections can be limited in scope, drones still provide a detailed look at areas of a facility that cannot normally be accessed by human inspectors, potentially greatly expanding the number of violations that could be considered "in plain sight," and which OSHA could cite employers for.

"Employers must consent to the drone use, but the question remains as to how the scope of an investigation might change if an employer refuses," cautioned Megan Baroni, an attorney who spoke with EHS Today about the new drone inspections.

Additionally, it's unclear whether OSHA would still need permission to conduct such flyovers if the agency is granted the Blanket Public COA it's seeking from the FAA. Furthermore, it's reasonable to speculate that the use of drones would expand from worksites considered too dangerous for physical examinations to routine reviews of facilities.

Employers may be resistant to unmanned aircraft inspections

Because of the uncertain risks surrounding a more invasive and comprehensive drone inspection, some attorneys recommend that businesses consider denying requests to conduct one.

"Until some of these issues become more fully developed and depending, of course, on the specific facts, drones may present a situation where the employer might consider going against conventional thinking and err on the side of withholding consent," said John S. Ho, an attorney with the law firm of Cozen O'Connor.

Employers can typically require OSHA obtain an inspection warrant before entering a worksite, though it is often more pragmatic to first try and define the scope of the inspection with the inspector. It's also best for an authorized employer representative to accompany the inspector, though this practice could be compromised by drone inspections.

Ho recommends that employers who do consent to drone inspections should come to an agreement with OSHA beforehand covering the specifics of the flight plan, the presence of an authorized employer representative monitoring the drone's operation and an agreement that all photographs will be promptly shared.

As drone usage becomes more commonplace, businesses will have to find new ways to remain compliant in the face of more thorough inspection processes.

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