Probably not, but it could be a Caltrans’ bird. The federal Occupational Health and Safety Administration (OSHA) uses unmanned aircraft systems (UAS) or what we groundlings call drones in the search for safety violations in the 28 states that follow the federal system—and some California agencies are already airborne. 

It is critical to remember that, according to construction lawyers, OSHA does not have warrantless search authority. According to a recent article by A. J. Wissinger and Benjamin H. Patton, of the international law firm Reed Smith that may be a limited benefit: 

“As a practical matter, it may not be wise for an employer to demand a warrant whenever OSHA shows up, because it may create the perception that an employer is not acting in good faith (and eligible for certain penalty discounts). But in certain situations, requiring OSHA to produce a warrant may be justified, such as in a fatality case where an employer may need additional time to gather its response team (e.g., safety officer, senior management, counsel, technical experts).

“If a drone is used, this makes a larger portion of the worksite available to inspection. If the inspector observes something through a fence or from outside the property that is an apparent violation, this can justify opening an inspection event, particularly if the condition presents an imminent danger, such as workers without fall protection or working in an unsupported trench.

“OSHA’s reach in terms of “plain view” inspection abilities is expanding as the agency explores the option of obtaining a blanket public aircraft operator (PAO) authorization that would allow it to fly missions that meet the governmental functions listed in the public aircraft statute. OSHA also can seek civil operator status under the Federal Aviation Administration’s (FAA) civil rules. It appears that the first route may be limited to federal OSHA inspections, whereas state OSHA agencies (in 22 states) would need to pursue the civil operator route. 

For more information, check out //www.assp.org/news-and-articles/2019/02/12/did-you-know-osha-has-a-drone-inspection-policy

 

California Context

CAL/OSHA doesn’t seem to have a clear policy about their use of drones on job site inspections yet, although the legislature has taken a few whacks at creating drone laws. 

Other state agencies are already in the sky, checking out your work.

Caltrans now has 20 UAS in its fleet and 38 certified drone pilots. Department planners foresee rapid growth in both those numbers. Pilot projects are assessing drones’ potential in bridge inspections, construction and surveying. Department officials are encouraged by the initial testing and anticipate that the drone program will be fully in place soon. Caltrans recently received $50,000 by the Federal Highway Administration (FHA) to accelerate its drone deployment, promote drone technology and inform the public about drone hazards. 

Our friends at the state environmental agencies have expressed interest in its utility for compliance monitoring. In another federal example, the U.S. Chemical Safety and Hazard Investigation Board use drones for site examination during investigations of chemical releases at facilities.

The U.S. Environmental Protection Agency (EPA), likewise, has published information about the role of drones in sampling and emissions monitoring, so you can expect the California Air Resources Board (CARB) to look into it as well.

This year, the federal EPA issued a grant of $320,000 to the Pennsylvania Department of Environmental Protection that, in part, would be used to fund drone-based methane detectors to estimate emissions from specific equipment used in natural gas development.

It’s another piece of technology to keep your eye on…especially if you are looking up.