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Complainant, |
|
|
v. |
OSHRC
Docket No. 07-1851 |
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ASSOCIATED
UNDERWATER SERVICES, |
|
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Respondent, |
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PILEDRIVERS
LOCAL UNION 2396, |
|
|
Authorized
Employee Representative. |
|
ON BRIEFS:
Ronald J. Gottlieb, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC
Erica A. Krikorian; Bullivant Houser Bailey P.C., Seattle, WA
DECISION
Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:
On August 7, 2007, an Associated Underwater Services ("AUS") employee working approximately 140 feet underwater was killed when a metal piling, also known as a "pile," fell on him. After conducting an inspection of the worksite, the Occupational Safety and Health Administration ("OSHA") issued AUS two citations alleging a total of three violations of the Occupational Safety and Health Act of 1970 ("OSH Act"), 29 U.S.C. §§ 651-678. The parties settled two of the citation items prior to the hearing. The remaining citation item alleged a serious violation of 29 C.F.R. § 1910.421(d)(2), which provides that the "[p]lanning of a diving operation shall include an assessment of the safety and health aspects of the following: . . . (2) Surface and underwater conditions and hazards." OSHA proposed a $2,500 penalty for the alleged violation. Following the hearing, Administrative Law Judge Sidney J. Goldstein (1) issued a decision vacating the citation item.
For the reasons discussed below, we reverse the judge's decision, affirm the item as serious, and assess the Secretary's proposed penalty of $2,500.
BACKGROUND
In August 2007, AUS was working on a project with General Construction Company ("GC") at BP's Cherry Point facility in Blaine, Washington. The project involved the construction of an oil containment boom and included the installation of metal pilings into the ocean floor as foundation for the boom. AUS provided underwater diving support to GC for its installation of the pilings, which GC positioned and drove into the ocean floor. Each piling weighed approximately 8,600 pounds and measured 22 feet long.
To drive the pilings into the ocean floor, GC used a "vibratory hammer." (2) The vibratory hammer has hydraulic jaws designed to grip a steel plate, known as a "pad-eye," which GC welded to the top of each piling. With the jaws clamped to the piling's pad-eye, the piling is directly suspended from the hammer. This type of hammer vibrates the piling at 25 vibrations per second, and the vibrations, combined with the downward pressure from the weight of the hammer, cause the piling to work itself into the ocean floor. The pile-driving process required GC's crew to first lift each piling off a barge using a crane hooked to the vibratory hammer that gripped the piling, and then lower the piling down to the ocean floor. The pad-eye was 1.25 inches thick but the jaws of the hammer could only open a maximum of 1.17 inches, and it is undisputed that GC's efforts to ensure a proper grip on the pad-eye damaged the hammer's jaws.
Once the piling was positioned on the ocean floor, GC's crew raised it one to two feet, and AUS sent a diver down to ensure that the area underneath the piling was free of obstructions. After determining that the area was clear, the diver radioed instructions to GC to lower the piling until it went into the ocean floor and reached the "point of refusal"--the depth in the ocean floor that the piling would reach through the force of its own weight and the weight of the hammer. The diver then instructed GC to activate the hammer. During the pile-driving operation, the diver either stayed near the base of the piling or moved to a position above the piling, in which case the diver had to ask GC to stop the hammer periodically so the diver could go back to the base of the piling and make sure the piling was being driven plumb. Prior to the accident, GC had successfully driven four pilings into the ocean floor on two separate days.
AUS prepared for each day's dive by conducting step-by-step pre-dive meetings with its employees. It is undisputed that at the pre-dive meeting held on the day of the accident, AUS discussed a dive plan with its employees that did not address the hazards of suspended loads or the possibility of a falling piling. (3) On that day, GC attached a wire cable to the piling before lowering it into the water. The cable had not been used on any prior dives and was attached at the request of GC's parent company. The AUS diver then entered the water to check for obstructions and subsequently informed GC that too much of the cluster of hoses that control the functions of the hammer had accumulated in the water. While GC adjusted the hoses, the diver received authorization from AUS's dive supervisor to remove the wire cable attached to the piling. The diver removed the wire cable, returned to the base of the piling, and radioed GC to activate the hammer. Almost immediately after GC activated the hammer, the piling came loose from the hammer's damaged jaws and fell on the diver, killing him.
DISCUSSION
I. Alleged violation
Section 1910.421(d)(2) requires an employer to assess surface and underwater conditions and hazards in planning a diving operation. Because it is a performance standard, the employer is required to assess only those hazards that a "reasonably prudent employer" would recognize. See W.G. Fairfield Co., 19 BNA OSHC 1233, 1235, 2000 CCH OSHD ¶ 32,216, p. 48,864 (No. 09-0344, 2000), aff'd, 285 F.3d 499 (6th Cir. 2002); see also Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283, 2287, 2004-09 CCH OSHD ¶ 32,937, p. 53,736 (No. 97-1073, 2007) ("[P]erformance standards . . . are interpreted in light of what is reasonable."). A reasonably prudent employer is a reasonable person familiar with the situation, including any facts unique to the particular industry. W.G. Fairfield Co., 19 BNA OSHC at 1235, 2000 CCH OSHD at pp. 48,864-65; Farrens Tree Surgeons, Inc., 15 BNA OSHC 1793, 1794, 1991-93 CCH OSHD ¶ 29,770, p. 40,489 (No. 90-998, 1992); see also Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 845 (9th Cir. 1976). Under Commission precedent, industry practice is relevant to this analysis, but it is not dispositive. W.G. Fairfield, 19 BNA OSHC at 1235-36, 2000 CCH OSHD at p. 48,865; Farrens Tree Surgeons, 15 BNA OSHC at 1794, 1991-93 CCH OSHD at p. 40,489; see also Smoke-Craft, 530 F.2d at 845 (noting that in absence of any industry custom the need to protect against an alleged hazard "may often be made by reference to" what a reasonably prudent employer "familiar with the industry would find necessary to protect against this hazard").
Here, the Secretary asserts that a reasonably prudent employer would have assessed any hazards arising out of GC's pile-driving operation, in particular the recognized hazard of a falling piling. Because AUS failed to assess this hazard in the dive plan discussed during its pre-dive meeting, the Secretary maintains that AUS failed to comply with the standard. AUS contends, however, that it was responsible only for assessing hazards arising out of its own diving activities and that it could not have foreseen GC would use a vibratory hammer with jaws that were too small to grip the piling's pad-eye. In vacating the citation, the judge agreed with AUS that GC's use of an inadequate hammer, as well as the resulting fatal accident, was unforeseeable. He also concluded the Secretary failed to establish that an employer in the commercial diving industry would have conducted its pre-dive hazard assessment any differently than AUS did here.
As a threshold matter, we find the judge erred in analyzing the citation in terms of the foreseeability of the accident and the events that led to it. (4) The Commission has long held that "it is the hazard, not the specific incident that resulted in injury or might have resulted in injury, that is the relevant consideration in determining the existence of a recognized hazard." Arcadian Corp., 20 BNA OSHC 2001, 2008, 2004-09 CCH OSHD ¶ 32,756, p. 52,074 (No. 93-0628, 2004) (citing Kelly Springfield Tire Co., 10 BNA OSHC 1970, 1973, 1982 CCH OSHD ¶ 26,223, p. 33,113 (No. 78-4555, 1982), aff'd, 729 F.2d 317 (5th Cir. 1984)); see also American Wrecking Corp., 19 BNA OSHC 1703, 1707 n.4, 2001 CCH OSHD ¶ 32,504, p. 50,400 n.4 (No. 96-1330, 2001) (consolidated) ("Determining whether the standard was violated is not dependent on the cause of the accident."), aff'd in part, rev'd in part, 351 F.3d 1254 (D.C. Cir. 2003); Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2017, 1991-93 CCH OSHD ¶ 29,902, p. 40,812 (No. 90-2668, 1992) (finding that the employer may not have foreseen the precise circumstances of the accident but generally knew the potential dangers associated with the location where its employees were working). The hazard here was that the piling could fall, not that the jaws of the vibratory hammer were too small for the pad-eye. Thus, a determination regarding whether the accident or its precise cause was foreseeable is legally irrelevant.
We also find that the judge's analysis of the reasonably prudent employer test was too narrow in that he considered only the practices of the commercial diving industry to determine the scope of AUS's assessment obligation under the cited standard. Indeed, we find that a reasonably prudent employer familiar with AUS's situation would have assessed whether any hazards that might have arisen from the onsite work activities, including those of GC, could impact its divers. Specifically, the term "hazards" as used in § 1910.421(d)(2) encompasses not only those hazards directly related to AUS's own industry, but also those created by fellow employers on the jobsite to which AUS divers may be exposed. The standard does not limit which surface and underwater hazards should be assessed in an employer's dive plan--in fact, it expressly requires that "diving operations shall be coordinated with other activities in the vicinity which are likely to interfere with the diving operation." 29 C.F.R. § 1910.421(e) (emphasis added). Even the preamble to § 1910.421 recognizes that "[e]xamples of surface and underwater conditions which may appropriately be evaluated include not only natural conditions . . . but surface conditions . . . ; they also include underwater hazards such as mechanical devices in the vicinity of the dive . . . ." 42 Fed. Reg. 37659 (July 22, 1977) (emphasis added). And such a requirement is consistent with Commission precedent requiring an employer to detect and assess the hazards to which its employees may be exposed, even those it did not create. See Pressure Concrete, 15 BNA OSHC at 2016, 1991-93 CCH OSHD at p. 40,811 (determining it was employer's responsibility to inquire about and examine worksite for potential hazards rather than city's responsibility to inform employer of potential hazards); Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1189, 1975-76 CCH OSHD ¶ 20,691, p. 24,791 (No. 12775, 1975) (finding that an employer should take reasonable steps to (1) detect hazards created by other employers but to which its employees are exposed, and (2) protect its employees from those hazards); see also W.G. Fairfield, 19 BNA OSHC at 1236, 2000 CCH OSHD at p. 48,865 (finding that employers must assess hazards related to the environment in which they are operating). Under these circumstances, we find that AUS was required to determine and assess how GC's pile-driving activities could affect AUS's divers.
Given this obligation, a reasonably prudent employer familiar with AUS's situation would have considered not only the commercial diving industry, but also the construction industry, in determining what hazards to assess. By limiting his inquiry to the commercial diving industry, the judge overlooked the fact that AUS was assisting GC with work that plainly falls within the definition of construction. Construction work is defined as work "for construction, alteration, and/or repair, including painting and decorating." 29 C.F.R. § 1926.32(g). And it is undisputed that GC was driving pilings into the seabed to create the foundation for a new oil containment boom. See United Geophysical Corp., 9 BNA OSHC 2117, 2121, 1981 CCH OSHD ¶ 25,579, pp. 31,905-06 (No. 78-6265, 1981) (stating that construction work involves the erection, modification, or repair of a building or structure). AUS's own expert acknowledged that driving a piling underwater is no different from driving a piling above ground. And the preamble to the commercial diving standard specifically recognizes that "[m]any divers are subjected to the dangers commonly associated with . . . construction work." 42 Fed. Reg. 37651 (July 22, 1977). Under these circumstances, we find that AUS was obligated to assess the construction-related dangers to which its employees may be exposed while assisting GC with the pile-driving operation. (5)
Finally, we find that had a reasonably prudent employer familiar with AUS's situation conducted the requisite assessment, it would have recognized the possibility that a piling could fall during the pile-driving operation and pose a hazard to its employees. Information about this hazard was readily available to AUS through GC's written safety program, which recognized the possibility of a falling piling:
Pile driving has the inherent risk of parts, equipment, concrete, and material falling from the pile while lofting or driving. . . . . During pile driving operations all employees and others not involved with the activity should be kept well clear of the fall radius and immediate work area. . . . . Piling can break, rigging and crane booms can fail and fall . . . .
. . . .
A secondary sling, independent of the vibrator with a capacity exceeding the maximum anticipated load must be in place in the event the piling pulls free of the vibrator jaws during extraction, placing or lofting.
Indeed, the operating manual for the
vibratory hammer also identified this hazard, cautioning, "[a]lways attach safety line to pile when extracting or
hoisting into position." (6) And a warning
sign on the vibratory hammer--which AUS's dive supervisor admitted observing at
the worksite and AUS's expert acknowledged should have prompted AUS to address
the hazard--read: "Danger! Falling piles can cause serious injury or
death. Do not use [vibratory hammer] as a pile lifting device." In these
circumstances, we find the record establishes that the danger posed by a
falling piling was a recognized hazard that AUS should have discovered and
assessed to satisfy the requirements of the cited standard.
(7) See Siemens Energy & Automation Inc., 20 BNA OSHC
2196, 2199, 2004-09 CCH OSHD ¶ 32,880, pp. 53,229-30 (No. 00-1052, 2005)
(considering, among other evidence, manufacturer's manual and other
publications to determine compliance with performance-oriented standard); Young
Sales Corp., 7 BNA OSHC 1297, 1298, 1979 CCH OSHD ¶ 23,768, pp.
28,821-22 (No. 8184, 1979) (holding that manufacturer warnings establish that a
hazard is recognized).
In sum, we find that AUS did not take the
steps a reasonably prudent employer in its situation would have taken to
discover the hazards it needed to assess, specifically those related to a
falling piling. Because AUS did not assess these hazards, we conclude that it
failed to comply with § 1910.421(d)(2) and affirm the citation.
II. Characterization and Penalty
The parties do not challenge the Secretary's
characterization of the violation as serious. As we have found, AUS failed to
address the hazard of a falling piling in its pre-dive assessment, and its
divers were allowed to remain next to the piling while
the vibratory hammer was activated. As is evident from the accident here, if
the 8,600-pound piling detached from the hammer's jaws, it would likely fall on
a diver and cause death or serious physical harm. See J.A. Jones, 15
BNA OSHC 2201, 2208, 1991-93 CCH OSHD ¶ 29,964, p. 41,027 (No. 87-2059,
1993) (finding violation of instruction standard serious where measures
required are necessary to protect against serious or life-threatening hazards);
29 U.S.C. § 666(k) (defining serious violation as one in which "there
is a substantial probability that death or serious physical harm could
result"). Accordingly, we affirm the violation as serious.
The Secretary proposed a penalty of $2,500.
When assessing a penalty under section 17(j) of the OSH Act, 29 U.S.C.
§ 666(j), the Commission must give "due consideration to the
appropriateness of the penalty with respect to the size of the business of the
employer being charged, the gravity of the violation, the good faith of the
employer, and the history of the previous violations." The principal
factor in a penalty determination is gravity, which "is based on the
number of employees exposed, duration of exposure, likelihood of injury, and
precautions taken against injury." Siemens, 20 BNA OSHC at 2201,
2004-09 CCH OSHD at p. 53,231.
On review, AUS does not dispute the penalty
amount proposed by the Secretary. We find that this amount is appropriate in light of the section 17(j) penalty factors. Under the
circumstances here, we consider the gravity of the violation to be high. Based
on the record, we further find that reductions for size and lack of prior
history are appropriate but see no basis for a reduction based on good faith.
Accordingly, we assess a penalty of $2,500.
ORDER
We affirm Citation 1, Item 1, as serious and
assess a penalty of $2,500.
SO ORDERED.
/s/
Thomasina V. Rogers
Chairman
/s/
Cynthia L. Attwood
Commissioner Dated: February 28, 2012
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
Docket No. 07-1851 |
|
ASSOCIATED
UNDERWATER SERVICES, |
|
|
Respondent, |
|
|
PILEDRIVERS
LOCAL UNION 2396, |
|
|
Authorized
Employee Representative. |
|
Appearances:
Patricia
Drummond, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle,
Washington
For
Complainant
Erica
Krikorian, Esq., Janis Puracal, Esq., Bullivant, Houser, Bailey, P.C., Seattle, Washington
For
Respondent
Leiter
Hockett, Senior Representative, Kent, Washington
For
Piledrivers Local Union #2396
Before:
Administrative Law Judge Sidney J. Goldstein
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 an Associated
Underwater Services, Inc. ("Respondent") worksite at Cherry Point,
Washington between August 8, 2007 and October 10, 2007. As a
result of the inspection, OSHA issued a Citation and Notification of
Penalty to Respondent alleging three violations of the Act. Citation 1
Item 1 alleged a serious violation of 29 C.F.R. §1910.421(d)(2). Citation 1
Item 2 alleged a serious violation of 29 C.F.R. §1926.550(a)(19).
Citation 2 Item 1 alleged an other than serious
violation of 29 C.F.R. §1910.1200(f)(5). Citation 1 Item 2 and Citation 2 Item
1 were settled by the parties prior to trial. Therefore, only Citation 1 Item 1
remained in dispute at the time of hearing. The Secretary proposed a penalty of
$2,500 for Citation 1 Item 1. Respondent timely contested the citation and an
administrative trial was held on April 27-28, 2009 in Seattle, Washington. The
Pile Drivers Local Union #2396 elected party status and participated during the
hearing. (Tr. 5, 56).
Approximately two weeks before trial, the
court received Motions in Limine of Respondent
and Complainant's Opposition to Respondent's Motions in Limine.
In response to the motions, the Secretary stipulated that she was not alleging
that Respondent violated Section 5(a)(1) of the Act in this case. Therefore,
the court granted Respondent's request that any evidence and argument in
support of a Section 5(a)(1) violation be excluded. Respondent's other requests
for relief were stayed pending the production of evidence at the hearing and
are hereby DENIED to the extent such requested findings of fact are inconsistent
with this decision.
Each party submitted a timely post-trial
brief. Therefore, this case is ready for disposition.
Jurisdiction
Jurisdiction of this action is conferred upon
the Occupational Safety and Health Review Commission pursuant to Section 10(c)
of the Act. The record establishes that 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).
Factual
Findings
This inspection resulted from a fatality
accident which occurred on August 7, 2007, in which commercial diver
Christopher Primeau was killed while working
approximately 140 feet underwater in Cherry Point, Washington. (Tr. 24, 122,
159, 258). Respondent, a commercial diving company, was subcontracting with
British Petroleum ("BP") to provide underwater diving support for the
installation of metal pilings. (Tr. 24). The pilings were going to serve as
underwater structural support for an oil containment boom being installed in an
area where oil tankers off-load to refineries. (Tr. 24-25).
General Construction, another BP
subcontractor at the jobsite, was responsible for positioning and driving the
pilings into the ocean floor. (Tr. 25, 283). Respondent's job was to observe
the driving of the pilings into the ocean floor, through the
use of underwater divers, to ensure they were being driven correctly.
(Tr. 25). Respondent had no direct contractual relationship with General
Construction on this jobsite. (Tr. 283). Each piling weighed approximately
8,000 pounds and measured 22 feet long. (Ex. 10).
At the beginning of this project,
Respondent's dive crew participated in a large, multi-employer safety meeting
which included General Construction employees, tugboat operators, and others,
in which the entire project was "walked through." (Tr. 526). Included
in that multi-party safety meeting was a discussion of General Construction's
responsibilities and the specific manner in which
Respondent's dive crew would be involved. (Tr. 526). In addition, Respondent
conducted a daily, step-by-step, pre-dive discussion with its dive crew during
"toolbox" meetings on this job. (Tr. 270-278). These daily pre-dive
discussions included anticipated hazards and methods to address them. Id.
The details of these daily dive crew meetings are extensively described by
Kerry Donohue, Respondent's Vice President and Dive Supervisor, over the course
of eight pages of trial transcript. Id. The pre-dive meeting on the
day of the fatal accident was even more comprehensive than usual because
Respondent had a new diver present on the dive crew. (Tr. 287).
Mr. Donohue has been involved in commercial
diving operations for thirty years and has extensive experience. (Tr. 239-250).
Just to become a certified commercial diver requires 400-500 hours of academic
and diving training, including such things as basic diving operations,
decompression tables, chamber operations, and practical welding and burning
skills. (Tr. 260). Even then, a certified commercial diver would start at the
lowest entry level. The Association of Diving Contractors International
("ADCI") recognizes three levels of divers: (1) air divers (first
level), (2) mixed-gas divers (second level), and (3) saturation divers (highest
level). (Tr. 261-262). In saturation diving experience alone, the most
complicated and dangerous type of commercial diving, Mr. Donohue personally has
more than a year of actual submerged time. (Tr. 242, 250).
In addition to the multi-party pre-dive
safety meeting and daily dive team meetings, Respondent had prepared a written
"Work & Dive Operations Plan" for this specific dive which
included, among other things, an "Activity Hazards Analysis." (Tr.
397; Ex. 5). In this written, pre-dive document, Respondent identified
"rigging failure" as a possible hazard on this particular dive project, and listed multiple recommended controls for
addressing that hazard. They included: (1) use only approved rigging in good
condition, (2) use proper rigging techniques, (3) ensure all equipment is
secured to deck for transport, (4) personnel instructed in the hazards
associated with working around cranes, (5) all hands stand clear of equipment
and other items on crane hook, and (6) tag lines to be used to control loads on
hook. (Ex. 5, p. 130).
The pilings being installed were driven one
at a time into the sea floor, during "slack tides" when there was not
a lot of water movement and it was safer for the divers. (Tr. 29, 38). Respondent's
employees were not involved in any way with General Construction's lifting of
the pilings off the barge and lowering them down to the ocean floor. (Tr. 363).
In fact, Respondent's dive crew did not typically arrive on site each day until
after General Construction's crew was prepared to drive the pilings because the
Respondent's hourly costs to BP were higher than the General Construction crew.
(Tr. 284-285).
Respondent's divers did not enter the water
until the piling had already been lowered into position approximately one foot
off the sea floor. (Tr. 38-39). Respondent's practice was to have the diver
enter the water and follow the hydraulic control lines from the surface down to
the location of the piling. (Tr. 29). Once the diver was on the bottom, he
checked the sea floor for any obstructions that might interfere with the
driving of the piling, then backed away approximately 3-4 feet, and instructed
the Dive Supervisor to tell the General Construction crew to activate the
hammer which drives the pilings. (Tr. 30).
Respondent's divers' primary responsibilities
on this jobsite were to: (1) monitor the underwater pile-driving for any
problems during the driving process, and (2) command an "all stop" if
a problem developed. (Tr. 320-321). To perform these duties, divers had to
remain within a few feet of the piling while it was being slowly driven since
visibility at that depth was only 3-4 feet. (Tr. 320-321). There was a wired
telephone communication system between the underwater diver and the Dive
Supervisor on the barge. (Tr. 31). Communications between the diver and the
Dive Supervisor were repeated to ensure no miscommunication occurred. (Tr. 30).
There was also a video camera attached to the diver's helmet, which transmitted
a visual image to the Dive Supervisor during the course of
the dive. (Tr. 31; Exs. 3, 7).
At the time of the accident, four pilings had
already been successfully driven into the sea floor over the course of the
previous two days. (Tr. 45). Three different divers had been in the water
monitoring the pile-driving up until the time of the accident: Chris Primeau (deceased), Kirk Neumann, and Marty Edwards. (Tr.
67). The previous four pilings had been driven into the sea floor using an
impact hammer. (Tr. 51). On the day of the accident, the General Construction
crew changed to a vibratory hammer to drive the pilings into the sea floor.
(Tr. 51). An impact hammer drives pilings through
repeated downward blows, whereas a vibratory hammer causes the piling to
vibrate (25 vibrations per second) while downward pressure causes it to work
itself into the sea floor. (Tr. 51, 155). The parties agreed that vibratory
hammers are designed to "fail closed," that is, hammer jaws are
interlocked so they will not inadvertently open while the vibration feature is
engaged. (Tr. 217, 504). The hammers were secured, and lowered, by a crane
positioned on a barge at the surface of the water. (Tr. 290-291; Ex. 1).
On the day of the accident, General
Construction attached (for the first time) a wire cable to the piling as it was
lifted off the barge and lowered into position in the water. (Tr. 32, 39, 52,
293-294; Ex. 1). On the previous dives, the pilings were positioned while being
held only by the grip of the hammer. (Tr. 52). However, the record establishes
that Respondent did not have a diver in the water during the movement of the
pilings from the barge into the water at any time on this project.
After he entered the water and descended the
140 feet to the bottom, diver Chris Primeau removed the
wire cable from the piling and told Dive Supervisor Donohue that the General
Construction crew could activate the vibratory hammer. (Tr. 293-294). Almost
immediately after the hammer was started, Mr. Primeau
repeatedly ordered "all stop" to the surface. (Tr. 40; Ex. 3). The
video feed from Mr. Primeau's dive helmet terminated
a few seconds later and the dive team could not get a response from Mr. Primeau on the telecommunications system. (Tr. 40; Ex. 3).
It was later discovered that the piling had come loose from the grip of the
vibratory hammer and fallen over onto Mr. Primeau.
(Tr. 307). Prior to the "all stop" commands, Mr. Primeau
never said or did anything to indicate any type of problem during the dive.
(Tr. 297).
OSHA Compliance Safety and Health Officer
Michael Bonkowski conducted the accident
investigation. (Tr. 24). Prior to this investigation, he had never inspected
any commercial diving pile-driving projects, or any type of worksite using a
vibratory hammer to drive pilings. (Tr. 69-72). His only experience with
underwater diving came from recreational scuba diving 40 years ago and a
three-day community college course on scuba diving 15 years ago. (Tr. 72).
Dale Cavanaugh, OSHA Assistant Regional
Administrator, assisted CSHO Bonkowski with the investigation.
(Tr. 133). Prior to this inspection, he had never investigated a commercial
diving accident or an underwater pile-driving project. (Tr. 192). His only
experience with underwater diving was a two-day "familiarization"
course and a certification for recreational scuba diving. (Tr. 132). ARA
Cavanaugh never looked at any of Respondent's equipment or interviewed any of
Respondent's employees. (Tr. 195). His primary role in the investigation was to
observe post-accident testing of the vibratory hammer and piling involved in
the accident. As a result of those tests, he learned
that the maximum opening for the vibratory hammer jaw was 1.17 inches. (Tr.
142). The width of the pad-eye connection on the piling, onto which the
vibratory hammer jaws clamped down, was 1.25 inches. (Tr. 142). Therefore, the
vibratory hammer jaw opening was .08 inches too small to fit around the piling
connection. The parties agree that this caused the piling to come loose from
the hammer while Mr. Primeau was in the water. (Tr.
85, 198).
The citation at issue in this case alleges
that Respondent failed to conduct an adequate pre-dive hazard assessment,
exposing their divers to the hazard of falling pilings. (Tr. 60, 64). OSHA
acknowledged that Respondent did assess certain hazards, but
omitted any assessment of hazards associated with diving near crane and
pile-driving operations. (Tr. 63-64). CSHO Bonkowski
also maintains that implicit in the assessment requirement is the "basic
duty" to take specific action to protect employees from the hazards
assessed. (Tr. 65). OSHA maintains that having divers observing the
pile-driving process within a few feet of the piling, with no safety line
between the crane and the piling, proves that Respondent's hazard assessment
was deficient. (Tr. 165). OSHA acknowledged that the cited standard, 29 C.F.R.
§1910.421(d)(2), is a performance-based standard, which affords employers some
discretion in assessing and addressing hazards. (Tr. 506-507).
OSHA points to several other facts in support
of its position:
(1) There was a warning sign on the vibratory
hammer which stated: "Danger. Falling piles can cause serious injury or
death. Do not use vibro as a pile lifting
device." (Tr. 156, 338, 362; Ex. 12). Although OSHA placed significant
focus on this warning sign during trial, they described it only as "fairly
visible" in their post-trial brief. (Secretary's Brief, p.25). The
Secretary also acknowledges that the hazard of a falling piling "is not
the general type of diving issue that is common to all diving."
(Secretary's Brief, p.27). However, the court notes that Respondent's divers
did not enter the water until the piling was lifted off the barge and lowered
140 feet into position on the sea floor. Therefore, any improper lifting and
maneuvering of the piling was done before Respondent's employees began to
perform their duties.
(2) General Constructions safety manual
identifies the possibility that pilings can fall. (Tr. 66-67; Ex. 9). OSHA also
points to American Pile-Driving Equipment, Inc.'s Operations Manual which
states: "[a]lways attach safety line to pile
when extracting or hoisting into position." (Ex. 4, p.18). OSHA offered
these third-party documents as evidence of industry practice requiring the use
of safety lines between the piling and the crane. OSHA maintains that
Respondent should have addressed and abated the hazard of falling pilings by
either securing a safety line to the pilings until they were driven deep enough
to stand on their own or by not having divers in the water during the
pile-driving. (Tr. 66, 105, 490). However, there was no evidence that
Respondent had knowledge of the contents of General Construction's or American
Pile-Driving Equipment's manuals. Respondent also pointed out that CSHO Bonkowski did not reference the failure to use a safety
line anywhere in his investigation file. (Tr. 111). Lastly, OSHA ARA Cavanaugh
could not identify any ADCI consensus standard which mandated the use of a
safety line to protect a diver from the possibility of a piling coming loose from
a hammer during a dive. (Tr. 197).
(3) Respondent's own dive manual identifies
rigging failure as a possible hazard and advises personnel to stay clear of
suspended loads. (Tr. 166, Ex. 5). However, the allegation in this case is that
Respondent failed to assess the hazards associated with pilings becoming
detached from vibratory hammers secured to cranes. The referenced portion of
Respondent's dive manual was prepared specifically for this job and is entitled
"Activity Hazard Analysis." (Ex. 5, p. 130). This seems to support
the proposition that hazards associated with equipment lifted and positioned by
crane were in fact assessed before the dive. In addition, CSHO Bonkowski acknowledged that there is no OSHA regulation
which specifically prohibits a diver from standing next to a piling while it is
being driven underwater. (Tr. 112). However, he believes 1910.421(d)(2) can be
interpreted as prohibiting such a practice. (Tr. 118).
(4) OSHA alleged that Respondent observed
General Construction employees having trouble securing the hammer to the
pad-eye on the piling. (Tr. 59). CSHO Bonkowski
testified that they had to "beat it on every time," indicating that
something was obviously wrong with connection between the hammer and the
piling. (Tr. 59). However, the Secretary presented no evidence establishing
that Respondent's employees were aware of any such "beating" of the
hammer onto the piling. In fact, based on this record, the court finds there
was no basis upon which Respondent should have suspected that General
Construction would use a vibratory hammer that was .08 inches too small for the
pad-eye connection on the piling. (Tr. 278, 314).
Although OSHA recognizes that ADCI consensus
standards represent the best practices for commercial diving operations, CSHO Bonkowski did not reference them prior to issuing the
citation items in this case. (Tr. 81-82). CSHO Bonkowski
also acknowledges that a dive plan, including the hazard assessment, does not
have to be written to comply with OSHA regulations. (Tr. 82). Finally, CSHO Bonkowski testified that OSHA's commercial diving
regulations do not specifically impose a duty on commercial diving employers to
inspect the equipment of other contractors on a site. (Tr. 99). OSHA conceded
that Respondent did not have a duty to inspect General Construction's crane
equipment unless Respondent saw something "that looked hazardous."
(Tr. 205).
Each party offered expert testimony in
support of their respective positions. Complainant's expert, Stephen Butler,
and Respondent's expert, Jon Hazelbaker, were both
accepted as experts on the subject of best practices
in commercial diving operations. Mr. Hazelbaker has
been engaged in commercial diving, both as a commercial diver and consultant,
for 41 years. (Tr. 410-416). He actually served on the
ADCI Board of Directors in the 1990's and still performs consultative work for
the organization. (Tr. 419). He is the only testifying expert witness with
personal commercial diving experience involving underwater pile-driving with a
vibratory hammer. (Tr. 417). As a result, the court gives greater weight to Mr.
Hazelbaker's testimony on best practices for this particular kind of project.
Mr. Hazelbaker
testified that, after reviewing the pre-dive actions of Respondent in this
case, he believes Respondent complied with professional diving standards and
§1910.421(d)(2). (Tr. 422). He also testified that in his forty years of
commercial diving experience, he has never seen or heard (other than the
present case) of a vibratory hammer failing and releasing a piling from its
grip, or of a safety line being attached from a piling to a hammer while it was
being driven underwater. (Tr. 426, 433). He further testified that if he was
performing this dive himself, he would have been positioned in the same location
as the deceased diver. (Tr. 428). Even Stephen Butler, who is Director of
Maritime Enforcement for OSHA, testified that a diver could be positioned next
to the piling while it was being driven once it was partially imbedded in the
sea floor. (Tr. 467-468, 490).
The court notes that actual pile-driving
process is relatively slow. As depicted in video footage, it takes
approximately six minutes to drive a 22-foot piling into the sea floor with a
vibratory hammer. (Ex. 7). With regard to the sign warning against using the
hammer as a lifting device, Mr. Butler testified that all Respondent should
have done with regard to this issue was "do a little research, find out a
little bit more about it, and then discuss it, you know, with the controlling
employer in this case, General Construction, until they get a satisfactory
answer relative to that particular piece of equipment." (Tr. 492). Mr.
Butler also testified, with regard to Respondent's own
procedures and equipment, that he found no problems: "...quite honestly, I
haven't found any major disagreements with that part of just running the dive.
I think the company has done an incredible thing. I have said so before in the
deposition. I think their safe practices manual, what they have, is adequate."
(Tr. 488). Mr. Butler maintained that Respondent had not done enough to address
the hazards presented by the equipment of the other subcontractor on site:
General Construction. (Tr. 488-489).
The Secretary maintains that the violation
was properly characterized as serious because a falling piling could, and did
in this case, result in serious physical harm or death. (Tr. 67).
Discussion
To establish a prima facie violation
of the Act, the Secretary must prove: (1) the standard applies to the cited
condition; (2) the terms of the standard were violated; (3) one or more of the
employees had access to the cited condition; and (4) the employer knew, or with
the exercise of reasonable diligence could have known, of the violative
condition. Ormet Corporation, 14
BNA OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991).
Citation
1 Item 1
The Secretary alleged in Citation 1 Item 1
that:
29 C.F.R. §1910.421(d)(2): Planning of a
diving operation did not include an assessment of the safety and health aspects
of surface and underwater conditions: (a) At Cherry Point the dive plan did not
address hazards resulting from surface and underwater conditions for dives
greater than 100 fsw and working around a suspended
vibratory hammer clamped to a piling.
The cited standard provides:
29 C.F.R. §1910.421(d) Planning and
assessment. Planning of a diving operation shall include an assessment of the
safety and health aspects of the following:
...(2) Surface and underwater conditions and hazards;
Respondent concedes that the cited standard
applies. (Respondent's Brief, p. 24). With regard to
whether the terms of the standard were violated, the Secretary does not dispute
that Respondent conducted a hazard assessment. Rather, she argues that
Respondent's hazard assessment was unreasonably deficient in that it did not
consider the possibility of falling pilings.
It is undisputed that the cited standard is a
performance standard, which differs from a specific standard in that employers
are afforded broader discretion by OSHA to identify hazards which are peculiar
to their own workplace and determine the steps necessary to abate them. Secretary's
Brief, p. 52; OSHRC v. Thomas Industrial Coatings, Inc., 21 BNA
OSHC 2283, 2008 CCH OSHD ¶32,937 (No. 97-1073, 2007). Since performance
standards do not identify specific obligations, compliance is evaluated on the basis of reasonableness. Id. Broadly worded
standards, such as the one here, typically require a showing that a reasonable
person familiar with the situation would recognize a hazardous condition which
should have been addressed. Farrens Tree
Surgeons, Inc., 15 BNA OSHC 1793, 1992 CCH OSHD ¶29,770 (No. 90-998,
1992). "If the language of the regulation is not specific enough, however,
other sources may provide constructive notice: industry custom and practice;
the injury rate for that particular type of [ ] work;
the obviousness of the hazard; and the interpretations of the regulation by the
Commission." Corbesco, Inc.,
926 F.2d 422 (5th Cir. 1991).
There was significant testimony and evidence
presented at trial concerning the events during actual dives and the
unfortunate fatality accident. However, this court finds that such information
is only minimally relevant to the issue at hand: What steps did Respondent take
before their divers entered the water to assess anticipated
hazards?
"Commercial diving involves exposure to
a high degree of risk. The diver's work environment is inherently
dangerous." 42 F.R. 37,651. Therefore, it is imperative that commercial
diving employers implement precise and comprehensive procedures to protect
their divers from recognized hazards. In this instance, the record clearly
reveals significant and repeated steps taken by Respondent, both verbally and
in writing, to address hazards they anticipated on this project. Respondent
participated in a large pre-dive safety meeting involving all subcontractors,
conducted daily meetings covering step-by-step procedures and hazards anticipated
in each dive, and included a written hazard analysis in their dive plan which
addressed working near suspended loads and cranes.
The third party
procedure manuals of General Construction and American Pile-Driving Equipment,
Inc., which discuss the hazard of falling pilings, do not specifically apply to
underwater pile-driving. They also address the hazard of falling pilings while
the pilings are being maneuvered into position. Since Respondent's divers did
not enter the water until the pilings were positioned one foot off the sea
floor, any improper lifting or moving of pilings occurred before the divers'
work began.
Additionally, the court finds that the
Secretary failed to establish that other commercial diving employers would have
conducted their pre-dive hazard assessment any differently than Respondent in
this situation. Alleged violations of broadly worded standards can be vacated
when the Secretary fails to establish that an employer failed to comport with
industry practice. Brooks Well Servicing, 20 BNA OSHC 1286, 2002 CCH
OSHD ¶32,675 (No. 99-0849, 2003). The court finds, based on this record, that
it was unforeseeable by Respondent that after four previous successful dives
monitoring this sea floor pile-driving process, that General Construction would
then use a vibratory hammer with a piling connection eight-one-hundredths-of-an-inch
too small to fit onto the piling, causing it to come loose in the water.
The Secretary failed to establish, by a
preponderance of the evidence, that Respondent's pre-dive hazard assessment as
required by 29 C.F.R. §1910.421(d)(2), was inadequate.
Affirmative
Defenses
Since the Secretary failed to establish a prima
facie violation of the Act, Respondent's affirmative defenses will not be
addressed.
ORDER
Based upon the foregoing Findings of Fact and
Conclusions of Law, it is ORDERED that Citation 1 Item 1 is VACATED.
/s/
SIDNEY J. GOLDSTEIN
Judge, OSHRC
Date: December 4, 2009
Denver, Colorado
1. Judge Goldstein has since retired from the Commission
and is currently serving as a senior judge on a limited appointment.
2. GC had initially planned to drive the pilings using an
"impact hammer," which would drive each piling into the ocean floor
through repeated downward blows, but changed to the
vibratory hammer before work on the project began.
3. AUS had developed a written dive plan before the
project started but does not dispute that the written plan was not used on the
day of the accident.
4. We note that the judge's error lies in part on his
incorrect factual finding that GC drove the four previous pilings with an
impact hammer and then switched to a vibratory hammer for the fatal dive. The
record, however, establishes that GC had used only a vibratory hammer to drive
pilings at the site.
5. AUS seeks to discredit testimony from the Secretary's
witnesses about the construction-related hazards of pile-driving. It claims
that their testimony is irrelevant because two of the witnesses lacked specific
expertise in commercial diving and the third witness lacked experience with
vibratory hammers. Based on our finding that GC's pile-driving operation was a
construction activity, we view the witnesses' testimony as relevant to our
inquiry.
6. Similarly, the operating manual of another
manufacturer of vibratory hammers, introduced into evidence at the hearing,
states, "Do not stand any closer to this equipment than necessary when it
is in operation. Parts may loosen and fall. Piling may shatter or break. Always
attach a safety line to the pile when extracting or hoisting into
position."
7. We also note that AUS could have obtained information
about the hazard of a falling piling by speaking with individuals familiar with
pile-driving, such as the crew performing that work for GC. In fact, it had an
opportunity--which it did not take--to question GC's superintendent about
possible risks when he told AUS's dive supervisor before the fatal dive that a
wire cable must be attached to the piling because GC's parent company was
concerned with "losing the pile." In addition, three witnesses, one
of whom was qualified as an expert, with extensive construction experience and
knowledge of hydraulic systems testified for the Secretary at the hearing, and
their testimony reflects that (1) working near suspended pilings is inherently
dangerous, (2) OSHA requires protections from falling pilings during
pile-driving, 29 C.F.R. § 1926.603(c)(2)--a requirement consistent with
industry consensus standards, and (3) a failure of the vibratory hammer's
hydraulic system could cause a piling to fall.