Officials clash over regulatory role

With anger and intense scrutiny brought by the collapse of scaffolding on Boylston Street, city, state, and federal officials clashed yesterday over who should ensure the safety of the construction equipment.

State officials said that legal rulings in the early 1990s stripped them of their authority to regulate scaffolding equipment and shifted it to the federal government.

But a spokesman for the US Department of Labor's Occupational Safety and Health Administration said there is nothing that prevents states or municipalities from licensing and inspecting the equipment.

New York City has its own scaffolding regulations, said the spokesman, John Chavez.

''If the city of New York can do it," he said, ''it certainly is possible that other jurisdictions can regulate certain things that are problems."

OSHA inspectors respond to complaints and accidents and perform random surprise inspections, but do not systematically inspect all construction sites or equipment, Chavez said. No inspections were conducted at the Emerson College site before Monday's collapse.

State Senator Jarrett Barrios, chairman of the Joint Committee on Public Safety, said jurisdictional questions notwithstanding, the state must resume inspecting equipment. He said he has scheduled a hearing for next Tuesday.

''Somebody must perform these inspections," he said. ''The status quo, meaning no inspections of this equipment, is unacceptable. . . . The buck has to stop here."

Mayor Thomas M. Menino has also called on the state to resume inspections.

Further muddying the regulatory waters, the state's public safety department does inspect construction cranes and elevators, but not movable scaffolding like the structure that fell Monday. The state's position is that scaffolding is regulated by OSHA, state public safety spokeswoman Kelly Nantel said.

Robert Prezioso, commissioner of the state's Division of Occupational Safety, sasid that the state could perform inspections of scaffolding but would be powerless to take action if violations were found.

''Based on the way the laws have been interpreted, we're pre-empted from enforcing in this area," he said.

Meanwhile, in interviews with the Globe, two former state inspectors said that they had performed construction safety inspections, but that those inspections were phased out after the state's Division of Labor and Industries was dissolved in 1993. The agency's responsibilities were divided between the Division of Occupational Safety and the attorney general's office.

Former state senator Thomas Birmingham made the change because the administration of then Governor William Weld allegedly was not enforcing labor laws aggressively enough, the former inspectors said.

Steven Troiano -- former supervisor of inspectors in the attorney general's Fair Labor and Business Practices Division, who retired in 2002 -- said the attorney general's office has curtailed its role significantly.

Meredith Baumann, spokeswoman for attorney general Thomas Reilly, said the office is responsible for enforcing wage and hour laws only.

''It is a shame that people are pointing fingers at a time like this," Baumann said. ''We should be thinking about the victims and their families."

Meanwhile, OSHA records show that the companies involved in Monday's tragedy have paid thousands in recent years for violating scaffolding safety rules. But the companies characterized their safety records as commendable, and the records show that other major Boston construction companies have similar or worse safety records.

John Topalis and Gerry McDonough, Bostonian Masonry's co-owners, issued a joint statement defending its safety record yesterday. They declined to answer questions.

''At Bostonian Masonry, we have very little experience responding to accidents of any sort," the statement said in part. ''This is because like most reputable contractors, safety is and has always been for us a top priority."

In the last five years, Bostonian Masonry has paid $10,350 in fines for nine serious violations of OSHA standards on scaffolding safety, the records show. OSHA defines serious as having ''a substantial proababilty that death or serious physical harm could result and the employer knew or should have known of the hazard," Chavez said.

In 2002, during construction of the New Boston Pilot School in Dorchester, Bostonian Masonry was cited for six serious violations of scaffolding rules, including rules governing the training for workers who use, erect, or dismantle scaffolds. The company paid $3,600 in fines for the violations.

Macomber has paid $2,250 in fines for one serious and one less serious violation of scaffolding safety rules since April 2001. Both violations occurred in 2004, during a project at Children's Hospital in Boston.

Macomber is one of New England's most prominent general contractors. But nearly two decades ago, it was involved in one of the worst construction accidents in the region's history when a residential building collapsed in Bridgeport, Conn., killing 28 workers.

Macomber, along with other contractors on the project, reached an out-of-court settlement with dozens of plaintiffs.

On Monday, John Macomber, Macomber Builders' chief executive and president, said the company tries ''very hard to keep safe jobs, and they have a very rigorous OSHA inspection program, as do our own vendors and subcontractors, so, typically, we're held up as a model of safety."

Boston's chief building inspector, Gary Moccia, said he was satisfied with Macomber's safety record.