THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Appearances:

Josh Bernstein, Esq., Jennifer J. Johnson, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

For Complainant

David C. Goff, Esq., Deutch, Kerrigan & Stiles, LLP, Gulfport, Mississippi

For Respondent

Before: Administrative Law Judge Patrick B. Augustine

DECISION AND ORDER

Procedural History

            This proceeding is before the Occupational Safety and Health Review Commission ("the Commission") pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et seq. ("the Act"). The Occupational Safety and Health Administration ("OSHA") conducted an inspection of a Deep South Crane & Rigging Company ("Respondent") worksite in Houston, Texas between July 18, 2008 and January 16, 2009. As a result of that inspection, OSHA issued a Citation and Notification of Penalty to Respondent alleging eleven violations of the Act. Before trial, the parties announced and later submitted, a Partial Settlement Agreement which fully resolved five of the alleged violations. The Partial Settlement Agreement was approved on October 26, 2009. Therefore, only Citation 1 Item 1 (three remaining instances), Citation 1 Item 3, Citation 1 Item 4, and Citation 2 Item 1 remained in dispute at trial. Citation 1 Item 1 alleges three serious violations of Section 5(a)(1) of the Act (commonly referred to as “the General Duty Clause”) with a proposed grouped penalty of $7,000.00. Citation 1 Item 3 alleges a serious violation of 29 C.F.R. §1926.501(b)(6) with a proposed penalty of $7,000.00. Citation 1 Item 4 alleges a serious violation of 29 C.F.R. §1926.550(a)(2) with a proposed penalty of $7,000.00. Lastly, Citation 2 Item 1 alleges a repeat violation of 29 C.F.R. §1926.20(b)(4) with a proposed penalty of $35,000.00. Respondent timely contested the citations and penalties, and the trial was conducted October 20-22, 2009, in Houston, Texas. Both parties filed timely post-trial briefs.

Jurisdiction

Jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of the Act. At all times relevant to this action, Respondent was an employer engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. §652(5). Complaint and Answer; Slinghuff v. OSHRC, 425 F.3d 861 (10^th Cir. 2005).

Applicable Law

            Section 5(a)(1) of the Act states that "each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. '654(a)(1). To establish a prima facie violation of Section 5(a)(1), Complainant must prove by a preponderance of the evidence that: (1) a condition or activity in the workplace presented a hazard to employees, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. Kokosing Constr. Co., 17 BNA OSHC 1869, 1872, 1995-96 CCH OSHD &31,207 (No. 92-2596, 1996). In addition, the evidence must show that the employer knew or with the exercise of reasonable diligence, should have known of the hazardous condition. Otis Elevator Company, 21 BNA OSHC 2204, 2007 CCH OSHD &32,920 (No. 03-1344, 2007).

            To establish a prima facie violation of a specific standard promulgated under the Act, Complainant must prove by a preponderance of the evidence that: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employer’s employees had access to the cited conditions; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative conditions. Ormet Corporation, 14 BNA OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991). In the 5th Circuit, when a supervisor engages in violative conduct, knowledge of the condition is imputable through him to an employer only if his actions were foreseeable based on deficiencies in the employer’s safety policies, training, or discipline. W.G. Yates & Sons Construction Co., Inc., 459 F.3d 604, 609 (5th Cir. 2006).

            A violation is serious if there is a substantial probability that death or serious physical harm could result from the violative condition. 29 U.S.C. 666(k). Complainant need not show that there is a substantial probability that an accident will occur; she need only show that if an accident occurred, serious physical harm would result. If the possible injury addressed by the regulation is death or serious physical harm, a violation of the regulation is serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984); Dec-Tam Corp., 15 BNA OSHC 2072, 1993 CCH OSHD ¶29,942 (No. 88-0523, 1993).

            When Complainant alleges a repeat violation, she has the burden of establishing that the violations were substantially similar. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). Complainant makes a prima facie showing of “substantial similarity” by showing that the previous and present violations are for failure to comply with the same standard. The burden then shifts to Respondent to rebut that showing. Monitor Construction Co., 16 BNA OSHC 1589, 1594 (No. 91-1807, 1994).

            Respondent asserts “unpreventable employee misconduct” and “infeasibility” as affirmative defenses to certain violations. To establish the affirmative defense of “unpreventable employee misconduct”, Respondent must show that: (1) it has established work rules designed to prevent the violation, (2) it has adequately communicated those rules to its employees, (3) it has taken steps to discover violations, and (4) it has effectively enforced the rules when violations have been discovered. W.G. Yates & Sons, supra. When the alleged misconduct is that of a supervisor, the proof of “unpreventable employee misconduct” is more rigorous and more difficult to establish since it is the supervisor's duty to protect the safety of employees under his supervision. Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1991 CCH OSHD ¶29,317 (No. 87-1067, 1991). The defense of infeasibility requires an employer to prove that: (1) the means of compliance prescribed by the standard are technologically or economically infeasible, or necessary work operations are technologically infeasible after implementation; and (2) there are no feasible alternative means of protection. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1993-95 CCH OSHD ¶ 30,485 (No. 91-1167, 1994).

Discussion

On July 18, 2008, a TC-36000 super-lift crane (“Versa 36000”) collapsed at the Lyondell-Bassell Refinery in Houston, Texas (“Lyondell jobsite”). (Tr. 396, 398, 501). The Versa 36000 has a lifting capacity of 2,500 tons and is one of the largest cranes in the world. (Tr. 175, 398). It is moved in pieces to various jobsites, and over the course of two to three weeks, assembled on-site. (Tr. 409, 46). The parties generally agreed that the crane was improperly maneuvered into an “overhaul” configuration, caused by excessive weight on the backside mast and an improper angle on the front-side boom, resulting in the crane toppling over backwards. (Tr. 226, 532). The Versa 36000 had been sitting in an overhaul position for a period of three hours. (Tr. 314-315). Four of Respondent’s employees were killed as a result of the accident: crane operator Marion “Scooter” Odom, two iron workers/flagmen, and the operator of a nearby assist crane. (Tr. 578, Complainant’s Brief, p. 2). OSHA initiated an investigation the same day the accident occurred. (Tr. 979).

Numerous witnesses testified at trial: (1) Mitchell Landry (Respondent’s President); (2) Carl Stafford (one of Respondent’s office-based Site Managers responsible for this Lyondell jobsite); (3) John Hulse (another office-based Site Manager, more senior than Mr. Stafford); (4) Danny Aydell (Respondent’s on-site Superintendent and lead operator of the Versa 36000); (5) Troy LeBoeuf (one of Respondent’s Versa 36000 crane operators on the Lyondell jobsite); (6) James Harper (Respondent’s night-shift Superintendent for the Lyondell jobsite); (7) Jeffrey Johnson (one of Respondent’s crane operators who had worked with Mr. Odom on previous jobs), and (8) OSHA Assistant Area Director Kelly Knighton, (lead OSHA investigator). (Tr. 59, 69, 151, 297, 443-444, 532, 609, 630, 979, 1027-1028).

 Each party also offered expert witness testimony on the subjects of crane industry practices and crane operator qualifications. Complainant’s expert, Bradley Closson, possesses an undergraduate degree in naval sciences, worked in the crane industry from 1979 until 1992, at which time he joined North American Crane Bureau - one of the largest crane and rigging consulting companies in the U.S. at the time. (Tr. 651-652; Ex. C-31). In 2004, Mr. Closson formed Craft Forensic Services which focuses on crane accident investigations and litigation consultation. (Tr. 652). He has also been a volunteer member of the ASME B30.5 committee since 1988. (Tr. 653). Respondent’s expert, Ronald Kohner, possesses a civil engineering degree and worked as a testing engineer for crane manufacturer American Hoist & Derrick starting in 1970. (Tr. 882-883). In 1987, Mr. Krohner formed Landmark Engineering Services, which focuses on crane-related consultation, accident investigations, and safety seminars. (Tr. 884). He also is a commissioner on the ASME B30.5 subcommittee and a member of the NCCCO practical examination committee. (Tr. 884-885, 888-889).

Citation 1 Item 1 (Instance No. 1)

            Complainant alleges Respondent violated Section 5(a)(1) of the Act as follows:

The employer does not ensure the controls of the TC36000 Versacrane, Serial # D/S004, are labeled. This violation was most recently observed on July 18, 2008, at the Lyondell Bassell Refinery where the TC36000 Versacrane’s controls such as but not limited to the drum hoists, swing brake, tag line hoist, boom limit by-pass switch, gauges and the horn were not labeled to identify their function. ABATEMENT NOTE: Among other procedures, one feasible and acceptable method to correct the hazard is for the employer to comply with International Standard - ISO 9942-1, Crane - Information Labels, Part 1, paragraph 3.1, Control installations and indicating devices.

The record establishes that there was some labeling of controls and gauges in the cab of the Versa 36000 at the time of the accident. (Ex. R-10). Therefore, the issue is not as simple as complete failure to label controls. Rather, it is a question of whether the amount of labeling that was present in the cab was sufficient. Complainant’s position on this issue was less than clear. First, the language of the citation itself alleges a failure to label “the drum hoist, swing brake, tag line hoist, boom limit by-pass switch, gauges, and horn.” Complainant’s brief, however, argues there was a failure to label the drum activation key, whip line, and luffing jib. (Complainant’s Brief, p. 21). Second, the parties’ expert witnesses agreed that the American Society of Mechanical Engineering’s (“ASME”) Safety Standard B30.5 for Cableways, Cranes, Derricks, Hoists, Hooks, Jacks, and Slings, ASME B30.5(2004) represents the applicable industry standard for crane operations in this case. (Tr. 717; Resp. Brief, p. 8; Ex. C-4). The 2004 version of the standard did not mandate specific methods for control labeling. Amendments to ASME B30.5 regarding specific labeling requirements were not approved until 2009 and do not become effective in the industry until 2010. (Tr. 959-960). Lastly, and most likely in recognition that there was no applicable ASME standard at the time, the citation identifies abatement of this hazard through compliance with ISO 9942.1, an international crane standard which Complainant’s own witnesses testified does not apply to cranes operated in the United States. (Tr. 853-854, 1007-1008). The court finds that Complainant failed to establish: (i) what standard was specifically violated, (ii) which controls lacked sufficient labeling, (iii) that the labeling in the cab of the Versa 36000 constituted a hazard to employees, and (iv) an appropriate method of abating the condition. Accordingly, Citation 1 Item 1 (Instance No. 1) is VACATED.

Citation 1 Item 1 (Instance No. 2)

  Complainant alleges Respondent violated Section 5(a)(1) of the Act as follows:

The employer does not ensure that the site supervisor ensures the TC36000 Versacrane, Serial# D/S004 safety devices and operational devices are functioning properly and are calibrated. This violation was most recently observed on July 18, 2008, at the Lyondell Bissell Refinery where the boom limit switch and the Cranesmart A2B system were not checked prior to the start of daily operations to ensure they were functioning properly and calibrated. ABATEMENT NOTE: Among other procedures, one feasible and acceptable method to correct the hazard is for the employer to comply with ASME B30.5-2007, Mobile and Locomotive Cranes, section 5-3.1.3.2.1, paragraph (a), Responsibility of Site Supervisor and Lift Director.

President Landry identified Mr. Odom as an operator-in-training who should have been under the direct supervision of Superintendent Aydell at all times while operating the Versa 36000. (Tr. 297-298, 464). President Landry, Site Manager Hulse, and even Superintendent Aydell himself, acknowledged that one of Aydell’s responsibilities was to ensure that the Boom Limit Switch and other alarms were properly set. (Tr. 186, 303, 577). Superintendent Aydell conceded that he did not verify how, or even if, the alarms and limit switches had been set on the day of the accident. (Tr. 577-578). Aydell’s failure to do so created a hazard for the operator, Mr. Odom, as well as other employees working near the crane.

President Landry, Site Manager Stafford, and Mr. Closson also agreed that if the boom limit switch and other alarms had been properly set on the day of the crane collapse, Mr. Odom would have been warned that he was putting the Versa 36000 into an overhaul configuration. (Tr. 183, 304, 763-764, 767-768). The hazards of failing to do so are known in the industry and specifically by Respondent. (Tr. 186). Such a hazardous condition could, and did in this instance, result in a fatal accident.

   Mr. Aydell’s knowledge of his own failure to check and properly set the alarms in the Versa 36000 is imputed to Respondent because his inaction was foreseeable as discussed below. W.G. Yates & Sons Construction Co., Inc., supra; A.P. O=Horo Co., 14 BNA OSHC 2004, 1991 CCH OSHD &29,223 (No. 85-0369, 1991). Abatement of this condition could have been achieved by simply setting the boom limit switch and Cranesmart computer to sound an alarm when Mr. Odom approached a crane configuration that risked overhaul. (Tr. 769). Complainant established all the necessary elements for a prima facie violation of Section 5(a)(1) of the Act in this instance.

   Respondent argued that this violation was a result of Superintendent Aydell’s unpreventable employee misconduct. However, a supervisor’s participation in a violation is strong evidence that an employer’s safety program is lax. Archer-Western Contractors, supra. Respondent points to President Landry’s testimony that Respondent’s policy was to “verify everything” as well as the fact that some safety discussion topics had included “preventing crane tipovers.” (Respondent’s Brief, pp. 9-10). Respondent’s policy was to check Cranesmart information against physical tape measurements. (Tr. 591-592). Superintendent Aydell testified that he had performed such a check during a test lift days before the accident. (Tr. 592). These facts are insufficient to establish that there was a specific work rule designed to prevent the violation alleged which was adequately communicated to employees.

The available alarm systems in this instance were contained in the boom limit switch and the Cranesmart in-cab computer system. (Tr. 182-183, 763-764). However, Superintendent Aydell admitted (1) that he did not know how to operate the Cranesmart computer program without the manual, (2) did not review the manual with Mr. Odom before allowing him to operate the crane, (3) could not remember the positions of the Versa 36000 controls without the manual, and (4) did not use the Versa 36000 manual when discussing the controls with Mr. Odom. (Tr. 567-568, 571-572). Furthermore, any training by Respondent on the use of these alarm systems to prevent an overhaul configuration is questionable since neither Respondent’s training documents or operating manual for the Versa 36000 explain overhaul situations or how to avoid them. (Tr. 384-385, 474-475; Ex. R-5).

   Respondent failed to establish that it had specific work rules designed to ensure that supervisors verify the proper setting and calibration of safety alarms and switches, or that any such rules were adequately communicated to its employees. Given these deficiencies in Respondent’s safety program, Superintendent Aydell’s failure to check the alarm settings on the day of the accident was foreseeable. W.G. Yates & Sons, supra. Therefore, Respondent failed to establish the defense of unpreventable employee misconduct. Citation 1 Item 1 (Instance No. 2) is AFFIRMED.

Citation 1 Item 1 (Instance No. 3)

   Complainant alleges Respondent violated Section 5(a)(1) of the Act as follows:

The employer does not ensure that the site supervisor ensures the operator of the TC36000 Versacrane, Serial# D/S004 is qualified to operate this specific type of crane. This violation was most recently observed on July 18, 2008, at the Lyondell Bissell Refinery where the supervisor did not ensure the operator could read the load charts, ensure the operator was using the correct boom angle to radius chart, ensure the operator could operate and understand the controls in the cab which were not labeled, did not ensure the operator had taken and passed written operational tests for the TC36000 Versacrane and did not ensure satisfactory completion of an operational test was performed to determine proficiency in operations such as but not limited to lowering, booming and swinging functions at various radii. ABATEMENT NOTE: Among other procedures, one feasible and acceptable method to correct the hazard is for the employer to comply with ASME B30.5-2007, Mobile and Locomotive Cranes, section 5-3.1.3.2.1, paragraph (g), Responsibilities of Site Supervisor and Lift Director.

President Landry and Site Manager Stafford, acknowledged that Respondent had a duty to have on-site supervisors, like Superintendent Aydell, ensure that crane operators, like Mr. Odom, are qualified to operate their assigned crane. (Tr. 69, 326). They also recognized that an on-site supervisor’s failure to ensure the crane operator’s qualifications creates a hazardous condition which could result in serious injury or death. (Tr. 70-71, 326).

 This jobsite was the first occasion for Superintendent Aydell to meet and work with Mr. Odom. (Tr. 548-549). Superintendent Aydell did not know how long Mr. Odom had been employed by Respondent, which cranes Mr. Odom had operated previously, or Mr. Odom’s qualifications to operate the Versa 36000. (Tr. 548-549). A group of senior managers, not including Superintendent Aydell, made the decision to assign Mr. Odom to this project with the understanding that Mr. Odom would operate the Versa 36000. (Tr. 63, 151). Superintendent Aydell was simply told to “familiarize” Mr. Odom with the Versa 36000. (Tr. 66-67).

 Before Mr. Odom assumed the controls of one of the largest cranes in the world, Superintendent Aydell spent only fifteen minutes with him explaining the controls and reviewing applicable charts. (Tr. 551, 562-563, 565-566). President Landry identified Mr. Odom as an operator-in-training who should have been under the direct supervision of Superintendent Aydell at all times while operating the Versa 36000. (Tr. 298, 464). In direct contradiction to President Landry’s testimony, Superintendent Aydell testified that he: (1) did not consider himself a trainer of other crane operators, (2) did not know what Respondent’s policies were for minimum qualifications to operate the Versa 36000, (3) did not verify that Mr. Odom knew how to utilize Cranesmart, an electronic display in the cab which indicates such things as load weight, boom angle, and wind speed, before turning the Versa 36000 over to him, and (4) never verified any of the crane position information Mr. Odom provided to him by radio. (Tr. 540-541, 556-557, 598-599). In fact, at the time of the accident, Superintendent Aydell was passing out employee paychecks and was not in a position to observe that the crane had been placed in an unsafe condition. (Tr. 533-534).

 Additionally, Superintendent Aydell did not physically enter the Versa 36000 cab with Mr. Odom when he first began operating the crane. (Tr. 549). Superintendent Aydell did not enter the cab with Mr. Odom until later in the day when a lever was malfunctioning and needed to be replaced. (Tr. 563-564). Even then, Superintendent Aydell was only in the cab with Mr. Odom for fifteen to twenty minutes. (Tr. 565-566). In contrast, one of Respondent’s other Versa 36000 crane operators on this jobsite, Troy LeBoeuf, testified that when he was first trained to operate the Versa 36000, a trainer spent two weeks in the cab of the crane with him before he was allowed to operate it alone. (Tr. 627). Superintendent Aydell testified that “I felt like he had enough knowledge to, you know, operate the controls [of the Versa 36000] because he told me.” (Tr. 551).

Superintendent Aydell’s failure to verify Mr. Odom’s qualifications to operate the Versa 36000 could have, and did in this instance, result in a fatal accident. Abatement of the condition could have been accomplished through the verification of Mr. Odom’s qualifications and/or prevention of Mr. Odom to assume control of the crane. As discussed below, Superintendent Aydell’s failure to verify Mr. Odom’s qualifications was foreseeable. Therefore, his knowledge of his own inaction is imputable to Respondent. W.G. Yates & Sons, supra. Complainant established the elements necessary for a prima facie violation of Section 5(a)(1) of the Act in this instance.

In a one sentence argument in its post-trial brief, Respondent submits, alternatively, that the employee misconduct defense shields Respondent from liability with regard to this item. (Resp. Brief, p. 18). Respondent’s argument is rejected. Respondent failed to establish that it had a work rule designed to prevent this condition or that the work rule was adequately communicated to Superintendent Aydell. Internal miscommunication on this issue is revealed by the fact that Respondent’s senior management considered Mr. Odom to be an operator-in-training under the immediate supervision of Superintendent Aydell, while Superintendent Aydell testified that he does not train operators and does not know what Respondent’s minimum qualifications were to qualify as a Versa 36000 crane operator. (Tr. 556-557).

Based on the facts that Mr. Odom was directed to this jobsite by Respondent’s senior management with their approval to operate the Versa 36000, and instructions to Superintendent Aydell to simply “familiarize” Mr. Odom with the crane, Superintendent Aydell’s failure to independently verify Mr. Odom’s qualifications to operate the crane was foreseeable and preventable. Accordingly, Respondent failed to establish the affirmative defense of unpreventable employee misconduct. Citation 1 Item 1 (Instance No. 3) is AFFIRMED.

Citation 1 Item 3

 Complainant alleges in Citation 1 Item 3 that:

29 C.F.R. §1926.501(b)(6): Each employee on ramps, runways, and other walkways were not protected from falling 6 feet above the lower level:

(a) The employer does not ensure employees are protected from falling while walking on the outriggers of the Versacrane TC-36000. This violation was most recently discovered on July 18, 2008, where each employee was using the outriggers as runways to travel from the ladder attached to the outrigger to the cab of the crane, thereby exposing the employees to a fall hazard of greater than 14 feet.

            The cited standard provides:

Ramps, runways, and other walkways. Each employee on ramps, runways, and other walkways shall be protected from falling 6 feet (1.8 m) or more to lower levels by guardrail systems.

It is undisputed that 29 C.F.R. §1926.501(b)(6) applies to the Versa 36000. (Tr. 330). To enter the cab of the Versa 36000, operators climb a ladder to the top of the outrigger, walk a few feet along the top of the outrigger with no fall protection until they reach a railed area in front of the cab entry. (Tr. 445, 572; Ex. R-19). Respondent acknowledged that the outrigger surface is higher than six feet above the ground and that a fall from such a height could result in serious injuries or death. (Tr. 327-328). President Landry knew, prior to the accident, that operators were required to walk on a section of the outrigger without fall protection when entering and exiting the Versa 36000 cabs. (Tr. 328-329, 507-508). Accordingly, Respondent does not dispute the prima facie elements of the violation alleged in Citation 1 Item 3. Respondent’s primary argument is that abatement of this condition was infeasible. (Tr. 573-574).

Complainant’s expert witness agreed that guardrails running the length of the outriggers would not be feasible because they would impede the rotation of the crane. (Tr. 840). After the accident, Respondent moved the ladder closer to the cab and installed a “yo-yo” restraint system on the outrigger walkway for operators to tie-off. (Tr. 329, 446, 506). President Landry testified that there was no reason why some method of fall protection could not have been used on the outriggers prior to this inspection. (Tr. 329). Post-inspection correction of a hazardous condition is persuasive evidence that abatement was feasible at the time. Pitt-Des Moines, Inc. 16 BNA OSHC 1429, 1993 CCH OSHD ¶30,225 (No. 90-1349, 1993). Mr. Closson also identified the possibility of using man-lifts to enter and exit the cab of the Versa 36000 as an alternative means of abatement. (Tr. 773).

Although the cited standard calls for guard rails, and witnesses agreed that guardrails were infeasible, the second prong of an infeasibility defense requires an employer to establish that alternative means of protection were unavailable. In this instance, alternative methods of protection were available, with one actually having been implemented. The court finds that Respondent failed to establish the defense of infeasibility. Citation 1 Item 3 is AFFIRMED.

Citation 1 Item 4

            Complainant alleges in Citation 1 Item 4 that:

29 C.F.R. §1926.550(a)(2): Rated load capacities, recommended operating speeds, special hazard warnings, or instructions, were not conspicuously posted on equipment:

(a) The employer does not ensure load rating charts for the Versacrane TC-36000, Serial D/S-004, are securely fixed to the cab. This violation was discovered most recently on July 18, 2008, where load charts located in a binder, and a boom angle-to-radius conversion chart was inserted on a clipboard, which were both located on the ground after falling out of the cab.

            The cited standard provides:

Rated load capacities, and recommended operating speeds, special hazard warnings, or instruction, shall be conspicuously posted on all equipment. Instructions or warnings shall be visible to the operator while he is at his control station.

Complainant clarified the vague language in the citation by arguing that Respondent failed to have the appropriate 420-foot boom conversion chart conspicuously posted in the cab on the day of the accident. (Complainant’s Brief, pp. 32-33). The cited standard clearly applies. Respondent’s policy mirrored 29 C.F.R. §1926.550(a)(2) in that it required load capacities, operating speeds, special warnings, and instructions to be conspicuously posted and visible to crane operators while in the cab. (Tr. 127-128; Ex. C-17). Superintendent Aydell provided undisputed testimony that he reviewed the 420-foot boom chart with Mr. Odom on the day of the accident and that the chart was in the cab of the Versa 36000. (Tr. 584, 600). President Landry testified that approximately one week after the accident, he observed the 420-foot boom angle radius chart for the Versa 36000 on the ground near the wreckage. (Tr. 334, 457-458). Complainant’s expert confirmed that various papers were scattered on the ground near the wreckage for days after the accident. (Tr. 796).

Mr. Closson used these facts to speculate about whether the 420-foot boom radius chart had been conspicuously posted inside the cab prior to the accident. (Tr. 805, 853). Unfortunately, the only person with direct knowledge of whether or not the 420-foot boom radius chart was conspicuously posted prior to the collapse is the deceased, Mr. Odom. It is abundantly clear from the testimony and post-accident photographs that papers from inside the cab were scattered throughout the site when the crane collapsed, then rained on and allowed to sit in the mud and wind for days after the incident. No witness had direct knowledge of the specific location of the chart while Mr. Odom was operating the crane on July 18, 2008. Complainant failed to establish that the appropriate load rating chart was not conspicuously posted in the Versa 36000 on the day of the accident. Citation 1 Item 4 is VACATED.

Citation 2 Item 1

            Complainant alleges in Citation 2 Item 1 that:

29 C.F.R. §1926.20(b)(4): The employer did not permit only those employees who were qualified by training and experience to operate equipment and machinery:

(a) The employer does not ensure employees operating the TC-36000 Versacrane, D/S004, are trained to operate the crane. This violation was most recently violated on July 18, 2008, where the employer instructed the crane operator to operate the TC-36000 Versacrane and did not provide specific training on the crane’s operation, controls, load charts and safety device which resulted in the crane being placed in a position to over-haul which resulted in four fatalities.

            The cited standard provides:

The employer shall permit only those employees qualified by training or experience to operate equipment or machinery.

The focus of the violation is the qualification of Mr. Odom to operate the Versa 36000 on July 18, 2008. The cited standard applies. The term “qualified” is defined in the regulations as “one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his ability to solve or resolve problems relating to the subject matter, the work, or the project.” 29 C.F.R. §1926.32(m). The court notes that President Landry claimed to be able to watch a crane operator maneuver a crane for five minutes and determine whether he is qualified to operate the machine. (Tr. 417).

The court finds that the regulatory definition of “qualified” is general and broad. When regulatory language is not specific enough, as in this determination of what constitutes a “qualified” Versa 36000 crane operator, industry sources may be considered. Corbesco, Inc., 926 F.2d 422, 427 (5th Cir. 1991). In this case, both experts agreed that the American Society of Mechanical Engineering’s (“ASME”) Safety Standard B30.5 for Cableways, Cranes, Derricks, Hoists, Hooks, Jacks, and Slings, ASME B30.5, is the industry standard for crane operator qualification criteria in the United States. (Tr. 717; Resp. Brief, p. 8).

ASME B30.5-3.2(b) (2004) “Qualifications for and Conduct of Operators and Operating Practices” provides:

(b)       Operator requirements shall include, but not be limited to, the following:

            (1)       evidence of successfully passing a physical examination as defined                                    in para.5-3.1.2(a);

            (2)       satisfactory completion of a written examination covering                                       operational characteristics, controls, and emergency control                                     skills, such as response to fire, power line contact, loss of stability,                                  or control malfunction, as well as characteristic and performance                           questions appropriate to the crane type for which qualification is                                    being sought;

            (3)       demonstrated ability to read, write, comprehend, and use                                        arithmetic and a load/capacity chart, in the language of the crane                          manufacturer’s operation and maintenance instruction manuals;

            (4)       satisfactory completion of a combination written and verbal test                              on load/capacity chart usage that covers a selection of the                                      configurations (the crane may be equipped to handle) for the                                     crane type for which qualification is being sought;

            (5)       satisfactory completion of an operation test demonstrating                                      proficiency in handling the specific crane type, including both                                     prestart and poststart inspection, maneuvering skills, shutdown,                               and securing procedures... (Ex. C-5)

Respondent argues that Mr. Odom was qualified to operate the Versa 36000. (Resp. Brief, pp. 23-26). In support of its argument, Respondent points out that Mr. Odom had been working for Respondent for approximately 2 years, possessed an NCCCO certification card for Large Hydraulic and Lattice Boom Crawler cranes, and had operated other cranes, including the Versa 28000, on other jobsites. (Tr. 88, 141-142, 433-434, 441-442; Ex. R-12).

            In direct contradiction to Respondent’s position, Site Manager Stafford testified that Mr. Odom had not been trained to operate the Versa 36000 in accordance with OSHA regulations, Respondent’s own policies, or ASME Safety Standard B30.5. (Tr. 61-63, 93-95). Site Manager Stafford, Site Manager Hulse, and others made the decision to have Mr. Odom operate the Versa 36000 at the Lyondell site even though they knew he had never operated the Versa 36000 before, had not received any classroom training on the Versa 36000, nor any practical training on the Versa 36000, and that Mr. Odom had never completed any examination or test concerning the Versa 36000. (Tr. 63-64, 89, 93, 151-153, 156, 380). Unlike Respondent’s other Versa 36000 operators, Mr. Odom had nothing in his personnel file which indicated he was qualified to operate the Versa 36000. (Tr. 122-124, 371). Mr. Odom was also the least experienced crane operator employed by Respondent at the time of the accident. (Tr. 316). Respondent’s “Lifting and Mobile Equipment Program,” in effect at the time, stated that “[u]nder no circumstances shall an employee operate a vehicle until he/she has successfully completed this company’s training program or has been certified by the site manager.” (Tr. 86-88; Ex. C-17).

In addition to this being Mr. Odom’s first time to operate the Versa 36000, the crane had never been configured in the manner it was on the day of the accident. (Tr. 214-215). The crane normally operated with an 85-95 foot rear mast. (Tr. 214). On the day of the accident, it was operating with a 105 foot mast. (Tr. 215, 606). The Versa 28000, on which Mr. Odom had previously worked, was never configured with a 105 foot mast. (Tr. 224).

            One aspect of Respondent’s argument is that Mr. Odom’s NCCCO certification, in light of a 1999 cooperative agreement between OSHA and NCCCO, establishes his qualifications to operate the Versa 36000. (Tr. 239-240). The National Commission for the Certification of Crane Operators (“NCCCO”) is a nationally recognized non-profit organization which certifies crane operators as qualified for particular types of cranes. (Tr. 98-99). NCCCO has four crane categories for which it certifies operators: Small Hydraulic Cranes, Large Hydraulic Cranes, Lattice Boom Crawler Cranes, and Lattice Boom Truck Cranes. (Tr. 890). The cooperative agreement states, inter alia, that NCCCO certification provides evidence that crane operators meet OSHA’s training requirements as well as the ASME B30.5 standards. (Ex. R-22). However, the agreement between OSHA and NCCCO was negotiated prior to the existence of the first Versa 36000. (Tr. 252-253). Additionally, the Versa 36000 is not one of the cranes tested in the NCCCO process. (Tr. 383, 483, 948). It is a hybrid, with characteristics of multiple types of cranes. (Tr. 729-730, 831-832, 890-891, 950). Even Respondent’s own internal employee training materials for NCCCO certification tests make no reference to operating Versacranes. (Tr. 114-115). Site Manager Stafford, President Landry, and Mr. Closson all agreed that Mr. Odom’s NCCCO certification did not qualify him to operate one of Respondent’s Versacranes. (Tr. 109, 485, 679-680). Ultimately, the record established that “there is not a single question on any test provided by [NCCCO] in any of the categories that would have tested Mr. Odom’s knowledge concerning backwards overhaul limitations on the 36000.” (Tr. 938). Respondent’s argument that Mr. Odom’s NCCCO card qualified him to operate the Versa 36000 is rejected.

            Since the Versacranes are specifically produced by and for Respondent, they are not generally available for use in the industry by other manufacturers or operators. Therefore, Respondent should have developed a specifically tailored training program for Versacrane operators that meets ANSE B30.5-3.2(b) qualification requirements, especially subparagraphs (b)(2) through (b)(5). The record failed to establish that such a program was established or implemented.

  Respondent also points to a Letter of Interpretation issued by OSHA in 1990 stating that an operator does not have to be re-examined when operating the same type of crane with a heavier lifting capacity as long as the increased lifting capacity is not a result of attachments with which the operator has no experience. (Tr. 435; Ex. R-24). Mr. Odom had twenty-seven days of experience operating the Versa 28000 on prior jobs. (Tr. 728). Respondent argues that Mr. Odom’s experience on the Versa 28000 translates to qualification on the Versa 36000. While it is true that the Versa 36000 has a heavier lifting capacity than the Versa 28000, they are vastly different with regard to overhaul hazards and limitations. (Tr. 930-931). Both experts agreed that, unlike the Versa 36000, it is not possible to maneuver the Versa 28000 with the same 420 foot boom into a configuration in which backwards overhaul is a risk. (Tr. 685-688, 926-927; Ex. C-35). Even Mr. Kohner acknowledged that Mr. Odom’s prior experience on the Versa 28000 only established partial qualification to operate the Versa 36000. (Tr. 911). Since it was Mr. Odom’s first day to operate the Versa 36000, Mr. Kohner conceded that he would not have been comfortable allowing Mr. Odom to operate the crane alone. (Tr. 973). Site Manager Stafford also agreed that Mr. Odom’s prior experience on the Versa 28000 was not sufficient training to operate the Versa 36000. (Tr. 96).

Additionally, as Mr. Closson pointed out, there was no evidence that Mr. Odom was ever properly trained or qualified to even operate the Versa 28000 on previous jobsites. (Tr. 685, 709, 735, 737). The fact that Mr. Odom had operated the Versa 28000 previously without experiencing an accident does not necessarily mean he was qualified to do so. (Tr. 685). Ultimately, the manner in which Mr. Odom operated the Versa 36000 on this jobsite, resulting in catastrophic collapse, can be considered in determining whether or not he was a qualified operator. Herbert Vollers, Inc., 4 BNA OSHC 1798, 1976-1977 CCH OSHD ¶21,230 (No. 9747, 1976). The facts presented in this case convince the court that Mr. Odom was not qualified to operate the Versa 36000 on July 18, 2008. Complainant established that the standard was violated, the four deceased employees were exposed to the condition, and Respondent had knowledge of Mr. Odom’s lack of qualification to operate the Versa 36000.

  Respondent experienced a previous crane-related inspection in 2007 at a jobsite in Coffeyville, Kansas. (Tr. 74, 78, 462-464). The Kansas case also involved a fatal crane accident with an unqualified crane operator at the controls. (Tr. 389). OSHA issued a Citation and Notification of Penalty to Respondent for regulatory violations as a result of that investigation as well. (Ex. C-26). One of the citation items accepted by Respondent as part of that settlement alleged a violation of 29 C.F.R. §1926.20(b)(4), the same standard at issue here. (Ex. C-27). That Settlement Agreement was approved and became a Final Order of the Commission on February 25, 2008. (Ex. C-28, C-29).

“A violation is repeated under Section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061 (No. 16183, 1979). “In cases where the Secretary shows that the prior and present violations are for an employer’s failure to comply with the same specific standard, it may be difficult for an employer to rebut the Secretary’s prima facie showing of similarity.” Id. Respondent failed to rebut Complainant’s prima facie showing of similarity. Therefore, Citation 2 Item 1 is AFFIRMED as a repeat violation.

Penalties

            In calculating the appropriate penalty for affirmed violations, Section 17(j) of the Act requires the Commission to give Adue consideration@ to four criteria: (1) the size of the employer's business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer's prior history of violations. 29 U.S.C. '666(j). Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201, 1993 CCH OSHD &29,964 (No. 87-2059, 1993). In calculating the proposed penalties, Complainant provided no reduction for size or history due to the fact that Respondent employs three hundred people and received a safety citation within the last three years. (Tr. 989-990).

            The court finds that all of the employees working onsite for Respondent were exposed to the hazards identified in Citation 1 Item 1 and Citation 2 Item 1 for the entire day because an accident involving this super-lift crane could have injured or killed all of them. Each operator of the Versa 36000 was exposed to the fall hazards identified in Citation 1 Item 3 every time they entered or exited the cab of the crane. Based on these facts and the totality of the circumstances described herein, the court assesses the penalties for the items being affirmed as set out below. 

ORDER

            Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1.         Citation 1 Item 1 (Instance No. 1) is hereby VACATED;

2.         Citation 1 Item 1 (Instance No. 2) is hereby AFFIRMED and a penalty of $5,000.00 is ASSESSED;

3.         Citation 1 Item 1 (Instance No. 3) is hereby AFFIRMED and the penalty is grouped with Citation 1        Item 1 (Instance No. 2) above;

4.         Citation 1 Item 3 is hereby AFFIRMED and a penalty of $7,000.00 is ASSESSED.

5.         Citation 1 Item 4 is hereby VACATED;

6.         Citation 2 Item 1 is hereby AFFIRMED and a penalty of $35,000.00 is ASSESSED.

                                                                        /s/

                                                                        PATRICK B. AUGUSTINE

                                                                        Judge, OSHRC

Date: March 18, 2010

Denver, Colorado

THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Appearances:

Josh Bernstein, Esq., Jennifer J. Johnson, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

For Complainant

David C. Goff, Esq., Deutch, Kerrigan & Stiles, LLP, Gulfport, Mississippi

For Respondent

Before: Administrative Law Judge Patrick B. Augustine

DECISION AND ORDER

Procedural History

            This proceeding is before the Occupational Safety and Health Review Commission ("the Commission") pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et seq. ("the Act"). The Occupational Safety and Health Administration ("OSHA") conducted an inspection of a Deep South Crane & Rigging Company ("Respondent") worksite in Houston, Texas between July 18, 2008 and January 16, 2009. As a result of that inspection, OSHA issued a Citation and Notification of Penalty to Respondent alleging eleven violations of the Act. Before trial, the parties announced and later submitted, a Partial Settlement Agreement which fully resolved five of the alleged violations. The Partial Settlement Agreement was approved on October 26, 2009. Therefore, only Citation 1 Item 1 (three remaining instances), Citation 1 Item 3, Citation 1 Item 4, and Citation 2 Item 1 remained in dispute at trial. Citation 1 Item 1 alleges three serious violations of Section 5(a)(1) of the Act (commonly referred to as “the General Duty Clause”) with a proposed grouped penalty of $7,000.00. Citation 1 Item 3 alleges a serious violation of 29 C.F.R. §1926.501(b)(6) with a proposed penalty of $7,000.00. Citation 1 Item 4 alleges a serious violation of 29 C.F.R. §1926.550(a)(2) with a proposed penalty of $7,000.00. Lastly, Citation 2 Item 1 alleges a repeat violation of 29 C.F.R. §1926.20(b)(4) with a proposed penalty of $35,000.00. Respondent timely contested the citations and penalties, and the trial was conducted October 20-22, 2009, in Houston, Texas. Both parties filed timely post-trial briefs.

Jurisdiction

Jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of the Act. At all times relevant to this action, Respondent was an employer engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. §652(5). Complaint and Answer; Slinghuff v. OSHRC, 425 F.3d 861 (10^th Cir. 2005).

Applicable Law

            Section 5(a)(1) of the Act states that "each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. '654(a)(1). To establish a prima facie violation of Section 5(a)(1), Complainant must prove by a preponderance of the evidence that: (1) a condition or activity in the workplace presented a hazard to employees, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. Kokosing Constr. Co., 17 BNA OSHC 1869, 1872, 1995-96 CCH OSHD &31,207 (No. 92-2596, 1996). In addition, the evidence must show that the employer knew or with the exercise of reasonable diligence, should have known of the hazardous condition. Otis Elevator Company, 21 BNA OSHC 2204, 2007 CCH OSHD &32,920 (No. 03-1344, 2007).

            To establish a prima facie violation of a specific standard promulgated under the Act, Complainant must prove by a preponderance of the evidence that: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employer’s employees had access to the cited conditions; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative conditions. Ormet Corporation, 14 BNA OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991). In the 5th Circuit, when a supervisor engages in violative conduct, knowledge of the condition is imputable through him to an employer only if his actions were foreseeable based on deficiencies in the employer’s safety policies, training, or discipline. W.G. Yates & Sons Construction Co., Inc., 459 F.3d 604, 609 (5th Cir. 2006).

            A violation is serious if there is a substantial probability that death or serious physical harm could result from the violative condition. 29 U.S.C. 666(k). Complainant need not show that there is a substantial probability that an accident will occur; she need only show that if an accident occurred, serious physical harm would result. If the possible injury addressed by the regulation is death or serious physical harm, a violation of the regulation is serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984); Dec-Tam Corp., 15 BNA OSHC 2072, 1993 CCH OSHD ¶29,942 (No. 88-0523, 1993).

            When Complainant alleges a repeat violation, she has the burden of establishing that the violations were substantially similar. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). Complainant makes a prima facie showing of “substantial similarity” by showing that the previous and present violations are for failure to comply with the same standard. The burden then shifts to Respondent to rebut that showing. Monitor Construction Co., 16 BNA OSHC 1589, 1594 (No. 91-1807, 1994).

            Respondent asserts “unpreventable employee misconduct” and “infeasibility” as affirmative defenses to certain violations. To establish the affirmative defense of “unpreventable employee misconduct”, Respondent must show that: (1) it has established work rules designed to prevent the violation, (2) it has adequately communicated those rules to its employees, (3) it has taken steps to discover violations, and (4) it has effectively enforced the rules when violations have been discovered. W.G. Yates & Sons, supra. When the alleged misconduct is that of a supervisor, the proof of “unpreventable employee misconduct” is more rigorous and more difficult to establish since it is the supervisor's duty to protect the safety of employees under his supervision. Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1991 CCH OSHD ¶29,317 (No. 87-1067, 1991). The defense of infeasibility requires an employer to prove that: (1) the means of compliance prescribed by the standard are technologically or economically infeasible, or necessary work operations are technologically infeasible after implementation; and (2) there are no feasible alternative means of protection. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1993-95 CCH OSHD ¶ 30,485 (No. 91-1167, 1994).

Discussion

On July 18, 2008, a TC-36000 super-lift crane (“Versa 36000”) collapsed at the Lyondell-Bassell Refinery in Houston, Texas (“Lyondell jobsite”). (Tr. 396, 398, 501). The Versa 36000 has a lifting capacity of 2,500 tons and is one of the largest cranes in the world. (Tr. 175, 398). It is moved in pieces to various jobsites, and over the course of two to three weeks, assembled on-site. (Tr. 409, 46). The parties generally agreed that the crane was improperly maneuvered into an “overhaul” configuration, caused by excessive weight on the backside mast and an improper angle on the front-side boom, resulting in the crane toppling over backwards. (Tr. 226, 532). The Versa 36000 had been sitting in an overhaul position for a period of three hours. (Tr. 314-315). Four of Respondent’s employees were killed as a result of the accident: crane operator Marion “Scooter” Odom, two iron workers/flagmen, and the operator of a nearby assist crane. (Tr. 578, Complainant’s Brief, p. 2). OSHA initiated an investigation the same day the accident occurred. (Tr. 979).

Numerous witnesses testified at trial: (1) Mitchell Landry (Respondent’s President); (2) Carl Stafford (one of Respondent’s office-based Site Managers responsible for this Lyondell jobsite); (3) John Hulse (another office-based Site Manager, more senior than Mr. Stafford); (4) Danny Aydell (Respondent’s on-site Superintendent and lead operator of the Versa 36000); (5) Troy LeBoeuf (one of Respondent’s Versa 36000 crane operators on the Lyondell jobsite); (6) James Harper (Respondent’s night-shift Superintendent for the Lyondell jobsite); (7) Jeffrey Johnson (one of Respondent’s crane operators who had worked with Mr. Odom on previous jobs), and (8) OSHA Assistant Area Director Kelly Knighton, (lead OSHA investigator). (Tr. 59, 69, 151, 297, 443-444, 532, 609, 630, 979, 1027-1028).

 Each party also offered expert witness testimony on the subjects of crane industry practices and crane operator qualifications. Complainant’s expert, Bradley Closson, possesses an undergraduate degree in naval sciences, worked in the crane industry from 1979 until 1992, at which time he joined North American Crane Bureau - one of the largest crane and rigging consulting companies in the U.S. at the time. (Tr. 651-652; Ex. C-31). In 2004, Mr. Closson formed Craft Forensic Services which focuses on crane accident investigations and litigation consultation. (Tr. 652). He has also been a volunteer member of the ASME B30.5 committee since 1988. (Tr. 653). Respondent’s expert, Ronald Kohner, possesses a civil engineering degree and worked as a testing engineer for crane manufacturer American Hoist & Derrick starting in 1970. (Tr. 882-883). In 1987, Mr. Krohner formed Landmark Engineering Services, which focuses on crane-related consultation, accident investigations, and safety seminars. (Tr. 884). He also is a commissioner on the ASME B30.5 subcommittee and a member of the NCCCO practical examination committee. (Tr. 884-885, 888-889).

Citation 1 Item 1 (Instance No. 1)

            Complainant alleges Respondent violated Section 5(a)(1) of the Act as follows:

The employer does not ensure the controls of the TC36000 Versacrane, Serial # D/S004, are labeled. This violation was most recently observed on July 18, 2008, at the Lyondell Bassell Refinery where the TC36000 Versacrane’s controls such as but not limited to the drum hoists, swing brake, tag line hoist, boom limit by-pass switch, gauges and the horn were not labeled to identify their function. ABATEMENT NOTE: Among other procedures, one feasible and acceptable method to correct the hazard is for the employer to comply with International Standard - ISO 9942-1, Crane - Information Labels, Part 1, paragraph 3.1, Control installations and indicating devices.

The record establishes that there was some labeling of controls and gauges in the cab of the Versa 36000 at the time of the accident. (Ex. R-10). Therefore, the issue is not as simple as complete failure to label controls. Rather, it is a question of whether the amount of labeling that was present in the cab was sufficient. Complainant’s position on this issue was less than clear. First, the language of the citation itself alleges a failure to label “the drum hoist, swing brake, tag line hoist, boom limit by-pass switch, gauges, and horn.” Complainant’s brief, however, argues there was a failure to label the drum activation key, whip line, and luffing jib. (Complainant’s Brief, p. 21). Second, the parties’ expert witnesses agreed that the American Society of Mechanical Engineering’s (“ASME”) Safety Standard B30.5 for Cableways, Cranes, Derricks, Hoists, Hooks, Jacks, and Slings, ASME B30.5(2004) represents the applicable industry standard for crane operations in this case. (Tr. 717; Resp. Brief, p. 8; Ex. C-4). The 2004 version of the standard did not mandate specific methods for control labeling. Amendments to ASME B30.5 regarding specific labeling requirements were not approved until 2009 and do not become effective in the industry until 2010. (Tr. 959-960). Lastly, and most likely in recognition that there was no applicable ASME standard at the time, the citation identifies abatement of this hazard through compliance with ISO 9942.1, an international crane standard which Complainant’s own witnesses testified does not apply to cranes operated in the United States. (Tr. 853-854, 1007-1008). The court finds that Complainant failed to establish: (i) what standard was specifically violated, (ii) which controls lacked sufficient labeling, (iii) that the labeling in the cab of the Versa 36000 constituted a hazard to employees, and (iv) an appropriate method of abating the condition. Accordingly, Citation 1 Item 1 (Instance No. 1) is VACATED.

Citation 1 Item 1 (Instance No. 2)

  Complainant alleges Respondent violated Section 5(a)(1) of the Act as follows:

The employer does not ensure that the site supervisor ensures the TC36000 Versacrane, Serial# D/S004 safety devices and operational devices are functioning properly and are calibrated. This violation was most recently observed on July 18, 2008, at the Lyondell Bissell Refinery where the boom limit switch and the Cranesmart A2B system were not checked prior to the start of daily operations to ensure they were functioning properly and calibrated. ABATEMENT NOTE: Among other procedures, one feasible and acceptable method to correct the hazard is for the employer to comply with ASME B30.5-2007, Mobile and Locomotive Cranes, section 5-3.1.3.2.1, paragraph (a), Responsibility of Site Supervisor and Lift Director.

President Landry identified Mr. Odom as an operator-in-training who should have been under the direct supervision of Superintendent Aydell at all times while operating the Versa 36000. (Tr. 297-298, 464). President Landry, Site Manager Hulse, and even Superintendent Aydell himself, acknowledged that one of Aydell’s responsibilities was to ensure that the Boom Limit Switch and other alarms were properly set. (Tr. 186, 303, 577). Superintendent Aydell conceded that he did not verify how, or even if, the alarms and limit switches had been set on the day of the accident. (Tr. 577-578). Aydell’s failure to do so created a hazard for the operator, Mr. Odom, as well as other employees working near the crane.

President Landry, Site Manager Stafford, and Mr. Closson also agreed that if the boom limit switch and other alarms had been properly set on the day of the crane collapse, Mr. Odom would have been warned that he was putting the Versa 36000 into an overhaul configuration. (Tr. 183, 304, 763-764, 767-768). The hazards of failing to do so are known in the industry and specifically by Respondent. (Tr. 186). Such a hazardous condition could, and did in this instance, result in a fatal accident.

   Mr. Aydell’s knowledge of his own failure to check and properly set the alarms in the Versa 36000 is imputed to Respondent because his inaction was foreseeable as discussed below. W.G. Yates & Sons Construction Co., Inc., supra; A.P. O=Horo Co., 14 BNA OSHC 2004, 1991 CCH OSHD &29,223 (No. 85-0369, 1991). Abatement of this condition could have been achieved by simply setting the boom limit switch and Cranesmart computer to sound an alarm when Mr. Odom approached a crane configuration that risked overhaul. (Tr. 769). Complainant established all the necessary elements for a prima facie violation of Section 5(a)(1) of the Act in this instance.

   Respondent argued that this violation was a result of Superintendent Aydell’s unpreventable employee misconduct. However, a supervisor’s participation in a violation is strong evidence that an employer’s safety program is lax. Archer-Western Contractors, supra. Respondent points to President Landry’s testimony that Respondent’s policy was to “verify everything” as well as the fact that some safety discussion topics had included “preventing crane tipovers.” (Respondent’s Brief, pp. 9-10). Respondent’s policy was to check Cranesmart information against physical tape measurements. (Tr. 591-592). Superintendent Aydell testified that he had performed such a check during a test lift days before the accident. (Tr. 592). These facts are insufficient to establish that there was a specific work rule designed to prevent the violation alleged which was adequately communicated to employees.

The available alarm systems in this instance were contained in the boom limit switch and the Cranesmart in-cab computer system. (Tr. 182-183, 763-764). However, Superintendent Aydell admitted (1) that he did not know how to operate the Cranesmart computer program without the manual, (2) did not review the manual with Mr. Odom before allowing him to operate the crane, (3) could not remember the positions of the Versa 36000 controls without the manual, and (4) did not use the Versa 36000 manual when discussing the controls with Mr. Odom. (Tr. 567-568, 571-572). Furthermore, any training by Respondent on the use of these alarm systems to prevent an overhaul configuration is questionable since neither Respondent’s training documents or operating manual for the Versa 36000 explain overhaul situations or how to avoid them. (Tr. 384-385, 474-475; Ex. R-5).

   Respondent failed to establish that it had specific work rules designed to ensure that supervisors verify the proper setting and calibration of safety alarms and switches, or that any such rules were adequately communicated to its employees. Given these deficiencies in Respondent’s safety program, Superintendent Aydell’s failure to check the alarm settings on the day of the accident was foreseeable. W.G. Yates & Sons, supra. Therefore, Respondent failed to establish the defense of unpreventable employee misconduct. Citation 1 Item 1 (Instance No. 2) is AFFIRMED.

Citation 1 Item 1 (Instance No. 3)

   Complainant alleges Respondent violated Section 5(a)(1) of the Act as follows:

The employer does not ensure that the site supervisor ensures the operator of the TC36000 Versacrane, Serial# D/S004 is qualified to operate this specific type of crane. This violation was most recently observed on July 18, 2008, at the Lyondell Bissell Refinery where the supervisor did not ensure the operator could read the load charts, ensure the operator was using the correct boom angle to radius chart, ensure the operator could operate and understand the controls in the cab which were not labeled, did not ensure the operator had taken and passed written operational tests for the TC36000 Versacrane and did not ensure satisfactory completion of an operational test was performed to determine proficiency in operations such as but not limited to lowering, booming and swinging functions at various radii. ABATEMENT NOTE: Among other procedures, one feasible and acceptable method to correct the hazard is for the employer to comply with ASME B30.5-2007, Mobile and Locomotive Cranes, section 5-3.1.3.2.1, paragraph (g), Responsibilities of Site Supervisor and Lift Director.

President Landry and Site Manager Stafford, acknowledged that Respondent had a duty to have on-site supervisors, like Superintendent Aydell, ensure that crane operators, like Mr. Odom, are qualified to operate their assigned crane. (Tr. 69, 326). They also recognized that an on-site supervisor’s failure to ensure the crane operator’s qualifications creates a hazardous condition which could result in serious injury or death. (Tr. 70-71, 326).

 This jobsite was the first occasion for Superintendent Aydell to meet and work with Mr. Odom. (Tr. 548-549). Superintendent Aydell did not know how long Mr. Odom had been employed by Respondent, which cranes Mr. Odom had operated previously, or Mr. Odom’s qualifications to operate the Versa 36000. (Tr. 548-549). A group of senior managers, not including Superintendent Aydell, made the decision to assign Mr. Odom to this project with the understanding that Mr. Odom would operate the Versa 36000. (Tr. 63, 151). Superintendent Aydell was simply told to “familiarize” Mr. Odom with the Versa 36000. (Tr. 66-67).

 Before Mr. Odom assumed the controls of one of the largest cranes in the world, Superintendent Aydell spent only fifteen minutes with him explaining the controls and reviewing applicable charts. (Tr. 551, 562-563, 565-566). President Landry identified Mr. Odom as an operator-in-training who should have been under the direct supervision of Superintendent Aydell at all times while operating the Versa 36000. (Tr. 298, 464). In direct contradiction to President Landry’s testimony, Superintendent Aydell testified that he: (1) did not consider himself a trainer of other crane operators, (2) did not know what Respondent’s policies were for minimum qualifications to operate the Versa 36000, (3) did not verify that Mr. Odom knew how to utilize Cranesmart, an electronic display in the cab which indicates such things as load weight, boom angle, and wind speed, before turning the Versa 36000 over to him, and (4) never verified any of the crane position information Mr. Odom provided to him by radio. (Tr. 540-541, 556-557, 598-599). In fact, at the time of the accident, Superintendent Aydell was passing out employee paychecks and was not in a position to observe that the crane had been placed in an unsafe condition. (Tr. 533-534).

 Additionally, Superintendent Aydell did not physically enter the Versa 36000 cab with Mr. Odom when he first began operating the crane. (Tr. 549). Superintendent Aydell did not enter the cab with Mr. Odom until later in the day when a lever was malfunctioning and needed to be replaced. (Tr. 563-564). Even then, Superintendent Aydell was only in the cab with Mr. Odom for fifteen to twenty minutes. (Tr. 565-566). In contrast, one of Respondent’s other Versa 36000 crane operators on this jobsite, Troy LeBoeuf, testified that when he was first trained to operate the Versa 36000, a trainer spent two weeks in the cab of the crane with him before he was allowed to operate it alone. (Tr. 627). Superintendent Aydell testified that “I felt like he had enough knowledge to, you know, operate the controls [of the Versa 36000] because he told me.” (Tr. 551).

Superintendent Aydell’s failure to verify Mr. Odom’s qualifications to operate the Versa 36000 could have, and did in this instance, result in a fatal accident. Abatement of the condition could have been accomplished through the verification of Mr. Odom’s qualifications and/or prevention of Mr. Odom to assume control of the crane. As discussed below, Superintendent Aydell’s failure to verify Mr. Odom’s qualifications was foreseeable. Therefore, his knowledge of his own inaction is imputable to Respondent. W.G. Yates & Sons, supra. Complainant established the elements necessary for a prima facie violation of Section 5(a)(1) of the Act in this instance.

In a one sentence argument in its post-trial brief, Respondent submits, alternatively, that the employee misconduct defense shields Respondent from liability with regard to this item. (Resp. Brief, p. 18). Respondent’s argument is rejected. Respondent failed to establish that it had a work rule designed to prevent this condition or that the work rule was adequately communicated to Superintendent Aydell. Internal miscommunication on this issue is revealed by the fact that Respondent’s senior management considered Mr. Odom to be an operator-in-training under the immediate supervision of Superintendent Aydell, while Superintendent Aydell testified that he does not train operators and does not know what Respondent’s minimum qualifications were to qualify as a Versa 36000 crane operator. (Tr. 556-557).

Based on the facts that Mr. Odom was directed to this jobsite by Respondent’s senior management with their approval to operate the Versa 36000, and instructions to Superintendent Aydell to simply “familiarize” Mr. Odom with the crane, Superintendent Aydell’s failure to independently verify Mr. Odom’s qualifications to operate the crane was foreseeable and preventable. Accordingly, Respondent failed to establish the affirmative defense of unpreventable employee misconduct. Citation 1 Item 1 (Instance No. 3) is AFFIRMED.

Citation 1 Item 3

 Complainant alleges in Citation 1 Item 3 that:

29 C.F.R. §1926.501(b)(6): Each employee on ramps, runways, and other walkways were not protected from falling 6 feet above the lower level:

(a) The employer does not ensure employees are protected from falling while walking on the outriggers of the Versacrane TC-36000. This violation was most recently discovered on July 18, 2008, where each employee was using the outriggers as runways to travel from the ladder attached to the outrigger to the cab of the crane, thereby exposing the employees to a fall hazard of greater than 14 feet.

            The cited standard provides:

Ramps, runways, and other walkways. Each employee on ramps, runways, and other walkways shall be protected from falling 6 feet (1.8 m) or more to lower levels by guardrail systems.

It is undisputed that 29 C.F.R. §1926.501(b)(6) applies to the Versa 36000. (Tr. 330). To enter the cab of the Versa 36000, operators climb a ladder to the top of the outrigger, walk a few feet along the top of the outrigger with no fall protection until they reach a railed area in front of the cab entry. (Tr. 445, 572; Ex. R-19). Respondent acknowledged that the outrigger surface is higher than six feet above the ground and that a fall from such a height could result in serious injuries or death. (Tr. 327-328). President Landry knew, prior to the accident, that operators were required to walk on a section of the outrigger without fall protection when entering and exiting the Versa 36000 cabs. (Tr. 328-329, 507-508). Accordingly, Respondent does not dispute the prima facie elements of the violation alleged in Citation 1 Item 3. Respondent’s primary argument is that abatement of this condition was infeasible. (Tr. 573-574).

Complainant’s expert witness agreed that guardrails running the length of the outriggers would not be feasible because they would impede the rotation of the crane. (Tr. 840). After the accident, Respondent moved the ladder closer to the cab and installed a “yo-yo” restraint system on the outrigger walkway for operators to tie-off. (Tr. 329, 446, 506). President Landry testified that there was no reason why some method of fall protection could not have been used on the outriggers prior to this inspection. (Tr. 329). Post-inspection correction of a hazardous condition is persuasive evidence that abatement was feasible at the time. Pitt-Des Moines, Inc. 16 BNA OSHC 1429, 1993 CCH OSHD ¶30,225 (No. 90-1349, 1993). Mr. Closson also identified the possibility of using man-lifts to enter and exit the cab of the Versa 36000 as an alternative means of abatement. (Tr. 773).

Although the cited standard calls for guard rails, and witnesses agreed that guardrails were infeasible, the second prong of an infeasibility defense requires an employer to establish that alternative means of protection were unavailable. In this instance, alternative methods of protection were available, with one actually having been implemented. The court finds that Respondent failed to establish the defense of infeasibility. Citation 1 Item 3 is AFFIRMED.

Citation 1 Item 4

            Complainant alleges in Citation 1 Item 4 that:

29 C.F.R. §1926.550(a)(2): Rated load capacities, recommended operating speeds, special hazard warnings, or instructions, were not conspicuously posted on equipment:

(a) The employer does not ensure load rating charts for the Versacrane TC-36000, Serial D/S-004, are securely fixed to the cab. This violation was discovered most recently on July 18, 2008, where load charts located in a binder, and a boom angle-to-radius conversion chart was inserted on a clipboard, which were both located on the ground after falling out of the cab.

            The cited standard provides:

Rated load capacities, and recommended operating speeds, special hazard warnings, or instruction, shall be conspicuously posted on all equipment. Instructions or warnings shall be visible to the operator while he is at his control station.

Complainant clarified the vague language in the citation by arguing that Respondent failed to have the appropriate 420-foot boom conversion chart conspicuously posted in the cab on the day of the accident. (Complainant’s Brief, pp. 32-33). The cited standard clearly applies. Respondent’s policy mirrored 29 C.F.R. §1926.550(a)(2) in that it required load capacities, operating speeds, special warnings, and instructions to be conspicuously posted and visible to crane operators while in the cab. (Tr. 127-128; Ex. C-17). Superintendent Aydell provided undisputed testimony that he reviewed the 420-foot boom chart with Mr. Odom on the day of the accident and that the chart was in the cab of the Versa 36000. (Tr. 584, 600). President Landry testified that approximately one week after the accident, he observed the 420-foot boom angle radius chart for the Versa 36000 on the ground near the wreckage. (Tr. 334, 457-458). Complainant’s expert confirmed that various papers were scattered on the ground near the wreckage for days after the accident. (Tr. 796).

Mr. Closson used these facts to speculate about whether the 420-foot boom radius chart had been conspicuously posted inside the cab prior to the accident. (Tr. 805, 853). Unfortunately, the only person with direct knowledge of whether or not the 420-foot boom radius chart was conspicuously posted prior to the collapse is the deceased, Mr. Odom. It is abundantly clear from the testimony and post-accident photographs that papers from inside the cab were scattered throughout the site when the crane collapsed, then rained on and allowed to sit in the mud and wind for days after the incident. No witness had direct knowledge of the specific location of the chart while Mr. Odom was operating the crane on July 18, 2008. Complainant failed to establish that the appropriate load rating chart was not conspicuously posted in the Versa 36000 on the day of the accident. Citation 1 Item 4 is VACATED.

Citation 2 Item 1

            Complainant alleges in Citation 2 Item 1 that:

29 C.F.R. §1926.20(b)(4): The employer did not permit only those employees who were qualified by training and experience to operate equipment and machinery:

(a) The employer does not ensure employees operating the TC-36000 Versacrane, D/S004, are trained to operate the crane. This violation was most recently violated on July 18, 2008, where the employer instructed the crane operator to operate the TC-36000 Versacrane and did not provide specific training on the crane’s operation, controls, load charts and safety device which resulted in the crane being placed in a position to over-haul which resulted in four fatalities.

            The cited standard provides:

The employer shall permit only those employees qualified by training or experience to operate equipment or machinery.

The focus of the violation is the qualification of Mr. Odom to operate the Versa 36000 on July 18, 2008. The cited standard applies. The term “qualified” is defined in the regulations as “one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his ability to solve or resolve problems relating to the subject matter, the work, or the project.” 29 C.F.R. §1926.32(m). The court notes that President Landry claimed to be able to watch a crane operator maneuver a crane for five minutes and determine whether he is qualified to operate the machine. (Tr. 417).

The court finds that the regulatory definition of “qualified” is general and broad. When regulatory language is not specific enough, as in this determination of what constitutes a “qualified” Versa 36000 crane operator, industry sources may be considered. Corbesco, Inc., 926 F.2d 422, 427 (5th Cir. 1991). In this case, both experts agreed that the American Society of Mechanical Engineering’s (“ASME”) Safety Standard B30.5 for Cableways, Cranes, Derricks, Hoists, Hooks, Jacks, and Slings, ASME B30.5, is the industry standard for crane operator qualification criteria in the United States. (Tr. 717; Resp. Brief, p. 8).

ASME B30.5-3.2(b) (2004) “Qualifications for and Conduct of Operators and Operating Practices” provides:

(b)       Operator requirements shall include, but not be limited to, the following:

            (1)       evidence of successfully passing a physical examination as defined                                    in para.5-3.1.2(a);

            (2)       satisfactory completion of a written examination covering                                       operational characteristics, controls, and emergency control                                     skills, such as response to fire, power line contact, loss of stability,                                  or control malfunction, as well as characteristic and performance                           questions appropriate to the crane type for which qualification is                                    being sought;

            (3)       demonstrated ability to read, write, comprehend, and use                                        arithmetic and a load/capacity chart, in the language of the crane                          manufacturer’s operation and maintenance instruction manuals;

            (4)       satisfactory completion of a combination written and verbal test                              on load/capacity chart usage that covers a selection of the                                      configurations (the crane may be equipped to handle) for the                                     crane type for which qualification is being sought;

            (5)       satisfactory completion of an operation test demonstrating                                      proficiency in handling the specific crane type, including both                                     prestart and poststart inspection, maneuvering skills, shutdown,                               and securing procedures... (Ex. C-5)

Respondent argues that Mr. Odom was qualified to operate the Versa 36000. (Resp. Brief, pp. 23-26). In support of its argument, Respondent points out that Mr. Odom had been working for Respondent for approximately 2 years, possessed an NCCCO certification card for Large Hydraulic and Lattice Boom Crawler cranes, and had operated other cranes, including the Versa 28000, on other jobsites. (Tr. 88, 141-142, 433-434, 441-442; Ex. R-12).

            In direct contradiction to Respondent’s position, Site Manager Stafford testified that Mr. Odom had not been trained to operate the Versa 36000 in accordance with OSHA regulations, Respondent’s own policies, or ASME Safety Standard B30.5. (Tr. 61-63, 93-95). Site Manager Stafford, Site Manager Hulse, and others made the decision to have Mr. Odom operate the Versa 36000 at the Lyondell site even though they knew he had never operated the Versa 36000 before, had not received any classroom training on the Versa 36000, nor any practical training on the Versa 36000, and that Mr. Odom had never completed any examination or test concerning the Versa 36000. (Tr. 63-64, 89, 93, 151-153, 156, 380). Unlike Respondent’s other Versa 36000 operators, Mr. Odom had nothing in his personnel file which indicated he was qualified to operate the Versa 36000. (Tr. 122-124, 371). Mr. Odom was also the least experienced crane operator employed by Respondent at the time of the accident. (Tr. 316). Respondent’s “Lifting and Mobile Equipment Program,” in effect at the time, stated that “[u]nder no circumstances shall an employee operate a vehicle until he/she has successfully completed this company’s training program or has been certified by the site manager.” (Tr. 86-88; Ex. C-17).

In addition to this being Mr. Odom’s first time to operate the Versa 36000, the crane had never been configured in the manner it was on the day of the accident. (Tr. 214-215). The crane normally operated with an 85-95 foot rear mast. (Tr. 214). On the day of the accident, it was operating with a 105 foot mast. (Tr. 215, 606). The Versa 28000, on which Mr. Odom had previously worked, was never configured with a 105 foot mast. (Tr. 224).

            One aspect of Respondent’s argument is that Mr. Odom’s NCCCO certification, in light of a 1999 cooperative agreement between OSHA and NCCCO, establishes his qualifications to operate the Versa 36000. (Tr. 239-240). The National Commission for the Certification of Crane Operators (“NCCCO”) is a nationally recognized non-profit organization which certifies crane operators as qualified for particular types of cranes. (Tr. 98-99). NCCCO has four crane categories for which it certifies operators: Small Hydraulic Cranes, Large Hydraulic Cranes, Lattice Boom Crawler Cranes, and Lattice Boom Truck Cranes. (Tr. 890). The cooperative agreement states, inter alia, that NCCCO certification provides evidence that crane operators meet OSHA’s training requirements as well as the ASME B30.5 standards. (Ex. R-22). However, the agreement between OSHA and NCCCO was negotiated prior to the existence of the first Versa 36000. (Tr. 252-253). Additionally, the Versa 36000 is not one of the cranes tested in the NCCCO process. (Tr. 383, 483, 948). It is a hybrid, with characteristics of multiple types of cranes. (Tr. 729-730, 831-832, 890-891, 950). Even Respondent’s own internal employee training materials for NCCCO certification tests make no reference to operating Versacranes. (Tr. 114-115). Site Manager Stafford, President Landry, and Mr. Closson all agreed that Mr. Odom’s NCCCO certification did not qualify him to operate one of Respondent’s Versacranes. (Tr. 109, 485, 679-680). Ultimately, the record established that “there is not a single question on any test provided by [NCCCO] in any of the categories that would have tested Mr. Odom’s knowledge concerning backwards overhaul limitations on the 36000.” (Tr. 938). Respondent’s argument that Mr. Odom’s NCCCO card qualified him to operate the Versa 36000 is rejected.

            Since the Versacranes are specifically produced by and for Respondent, they are not generally available for use in the industry by other manufacturers or operators. Therefore, Respondent should have developed a specifically tailored training program for Versacrane operators that meets ANSE B30.5-3.2(b) qualification requirements, especially subparagraphs (b)(2) through (b)(5). The record failed to establish that such a program was established or implemented.

  Respondent also points to a Letter of Interpretation issued by OSHA in 1990 stating that an operator does not have to be re-examined when operating the same type of crane with a heavier lifting capacity as long as the increased lifting capacity is not a result of attachments with which the operator has no experience. (Tr. 435; Ex. R-24). Mr. Odom had twenty-seven days of experience operating the Versa 28000 on prior jobs. (Tr. 728). Respondent argues that Mr. Odom’s experience on the Versa 28000 translates to qualification on the Versa 36000. While it is true that the Versa 36000 has a heavier lifting capacity than the Versa 28000, they are vastly different with regard to overhaul hazards and limitations. (Tr. 930-931). Both experts agreed that, unlike the Versa 36000, it is not possible to maneuver the Versa 28000 with the same 420 foot boom into a configuration in which backwards overhaul is a risk. (Tr. 685-688, 926-927; Ex. C-35). Even Mr. Kohner acknowledged that Mr. Odom’s prior experience on the Versa 28000 only established partial qualification to operate the Versa 36000. (Tr. 911). Since it was Mr. Odom’s first day to operate the Versa 36000, Mr. Kohner conceded that he would not have been comfortable allowing Mr. Odom to operate the crane alone. (Tr. 973). Site Manager Stafford also agreed that Mr. Odom’s prior experience on the Versa 28000 was not sufficient training to operate the Versa 36000. (Tr. 96).

Additionally, as Mr. Closson pointed out, there was no evidence that Mr. Odom was ever properly trained or qualified to even operate the Versa 28000 on previous jobsites. (Tr. 685, 709, 735, 737). The fact that Mr. Odom had operated the Versa 28000 previously without experiencing an accident does not necessarily mean he was qualified to do so. (Tr. 685). Ultimately, the manner in which Mr. Odom operated the Versa 36000 on this jobsite, resulting in catastrophic collapse, can be considered in determining whether or not he was a qualified operator. Herbert Vollers, Inc., 4 BNA OSHC 1798, 1976-1977 CCH OSHD ¶21,230 (No. 9747, 1976). The facts presented in this case convince the court that Mr. Odom was not qualified to operate the Versa 36000 on July 18, 2008. Complainant established that the standard was violated, the four deceased employees were exposed to the condition, and Respondent had knowledge of Mr. Odom’s lack of qualification to operate the Versa 36000.

  Respondent experienced a previous crane-related inspection in 2007 at a jobsite in Coffeyville, Kansas. (Tr. 74, 78, 462-464). The Kansas case also involved a fatal crane accident with an unqualified crane operator at the controls. (Tr. 389). OSHA issued a Citation and Notification of Penalty to Respondent for regulatory violations as a result of that investigation as well. (Ex. C-26). One of the citation items accepted by Respondent as part of that settlement alleged a violation of 29 C.F.R. §1926.20(b)(4), the same standard at issue here. (Ex. C-27). That Settlement Agreement was approved and became a Final Order of the Commission on February 25, 2008. (Ex. C-28, C-29).

“A violation is repeated under Section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061 (No. 16183, 1979). “In cases where the Secretary shows that the prior and present violations are for an employer’s failure to comply with the same specific standard, it may be difficult for an employer to rebut the Secretary’s prima facie showing of similarity.” Id. Respondent failed to rebut Complainant’s prima facie showing of similarity. Therefore, Citation 2 Item 1 is AFFIRMED as a repeat violation.

Penalties

            In calculating the appropriate penalty for affirmed violations, Section 17(j) of the Act requires the Commission to give Adue consideration@ to four criteria: (1) the size of the employer's business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer's prior history of violations. 29 U.S.C. '666(j). Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201, 1993 CCH OSHD &29,964 (No. 87-2059, 1993). In calculating the proposed penalties, Complainant provided no reduction for size or history due to the fact that Respondent employs three hundred people and received a safety citation within the last three years. (Tr. 989-990).

            The court finds that all of the employees working onsite for Respondent were exposed to the hazards identified in Citation 1 Item 1 and Citation 2 Item 1 for the entire day because an accident involving this super-lift crane could have injured or killed all of them. Each operator of the Versa 36000 was exposed to the fall hazards identified in Citation 1 Item 3 every time they entered or exited the cab of the crane. Based on these facts and the totality of the circumstances described herein, the court assesses the penalties for the items being affirmed as set out below. 

ORDER

            Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1.         Citation 1 Item 1 (Instance No. 1) is hereby VACATED;

2.         Citation 1 Item 1 (Instance No. 2) is hereby AFFIRMED and a penalty of $5,000.00 is ASSESSED;

3.         Citation 1 Item 1 (Instance No. 3) is hereby AFFIRMED and the penalty is grouped with Citation 1        Item 1 (Instance No. 2) above;

4.         Citation 1 Item 3 is hereby AFFIRMED and a penalty of $7,000.00 is ASSESSED.

5.         Citation 1 Item 4 is hereby VACATED;

6.         Citation 2 Item 1 is hereby AFFIRMED and a penalty of $35,000.00 is ASSESSED.

                                                                        /s/

                                                                        PATRICK B. AUGUSTINE

                                                                        Judge, OSHRC

Date: March 18, 2010

Denver, Colorado