Future Enterprises, Government Inspections, and Drones: Agencies are Using Drones More and More for Site Inspections
Employers should be aware that OSHA and some state environmental agencies are now using unmanned aircraft systems (UAS) or “drones” in select inspections and investigations. So far, OSHA is using drones in inspections that are “too dangerous for compliance officers to enter or be nearby,” and the Michigan Department of Environmental Quality is using drones to monitor for PFAS (per- and polyfluoroalkyl substances) discharges. Employers should anticipate that as agencies become more experienced and comfortable with drone technology they will become more and more a part of the normal inspection procedures.
OSHA’s Director of Enforcement Programs, Thomas Galassi, recently issued a Memorandum for Regional Administrators regarding usage of drones for site inspections: OSHA’s Use of Unmanned Aircraft Systems in Inspections (Drone Memo). The Drone Memo indicates that drones may be used to “collect evidence during inspections in certain workplace settings, including in areas that are inaccessible or pose a safety risk to inspection personnel. UAS may also be used for technical assistance in emergencies, during compliance assistance activities, and for training.”
The use of drones potentially raises concerns for employers regarding “surprise” and due process, especially regarding inspections being performed without informed consent. However, the Drone Memo explicitly states that a drone operator or compliance officer must “obtain express consent from the employer prior to using UAS on any inspection.”
Further, the Drone Memo sets forth, in detail, specific operational and safety requirements for use of drones during inspections. These include:
The requirement that any Region using drones will designate a Regional UAS Program Manager (UPM) that will oversee all program elements,
The requirement that the drone operator be trained and licensed according to Federal Aviation Administration (FAA) requirements,
Specific maintenance and safety requirements for drone use and upkeep, and
Specific pre-, during, and post- flight operational requirements.
OSHA is exploring the option of obtaining a blanket public certificate of authorization which would allow it to operate drones under requirements specific to OSHA’s inspection needs. Until that time, OSHA has indicated it will follow two legal frameworks presently available to it under FAA rules for the use of drones. Those include either as a Public Aircraft Operator (PAO) flying missions that meet the governmental functions listed in the Public Aircraft Statute (49 U.S.C. §§ 40102(a)(41) & 40125), or as a Civil Operator under the civil rules (14 CFR Part 107, Small Unmanned Aircraft Systems).
In addition, in September 2018, the Michigan Department of Environmental Quality (DEQ) announced that it will utilize drones with infrared cameras to search for possible groundwater release locations of per- and polyfluoroalkyl substances (PFAS). The infrared camera will be utilized to discern cooler groundwater springs from warmer lake water. While MI DEQ notes that “[t]he entry of cold springs does not confirm the presence of PFAS contamination,” “discovering the flow of groundwater from the base into surface waters will allow the DEQ to better target sampling efforts.”
According to Bloomberg Law, as noted in its November 29, 2018, article, Safety Inspection Drones Raise Concerns for Employers, OSHA noted that “drones have been used for nine inspections under the guidance issued earlier this year, often at worksites following an accident where it was too dangerous for compliance officers to enter or be nearby” including: an oil drilling rig fire, a building collapse, a combustible dust blast, an accident on a television tower, and a chemical plant explosion.
If you have any questions regarding an agency’s use of drones during an inspection, please reach out to your Seyfarth Shaw attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.