United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th
Street, N.W., Ninth Floor
Washington, DC 20036-3457
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SECRETARY OF LABOR, |
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Complainant, |
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v. |
OSHRC Docket No. 09-0240 |
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DEEP SOUTH CRANE & RIGGING CO., |
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Respondent. |
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ON BRIEFS:
Gary K. Stearman, 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
For the Complainant
David C. Goff, Esq.; Deutsch, Kerrigan
& Stiles, L.L.P., Gulfport, MS
DECISION
Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:
On July 18, 2008, four employees of Deep South Crane & Rigging
Company (“Deep South”) were fatally injured when a Deep South-owned VersaCrane
TC-36000 (“Versa 36000”), fell over backwards at the Lyondell-Bassell Refinery
in Houston, Texas. After conducting an
inspection of the worksite, the Occupational Safety and Health Administration
(“OSHA”) issued Deep South three citations alleging eleven violations of the
Occupational Safety and Health Act of 1970 (“OSH Act”), 29 U.S.C. §§
651-678. Five of the eleven citation
items were settled prior to the hearing presided over by Administrative
Law Judge Patrick Augustine, who affirmed four of the remaining six citation
items and vacated the rest.
Two of the affirmed citation items
are at issue on review. In Serious
Citation 1, Item 1, Instance 3, the Secretary alleges that Deep South violated
section 5(a)(1) of the OSH Act, 29 U.S.C. § 654(a)(1), also known as the
general duty clause, because the company failed to ensure that its site
supervisor ensured the crane operator was qualified to operate the crane. In Repeat Citation 2, Item 1, the Secretary
alleges that Deep South violated 29 C.F.R. § 1926.20(b)(4) because it allowed
an unqualified crane operator to operate the crane. For the reasons that follow, we affirm both items as alleged
and assess a total penalty of $40,000.
BACKGROUND
The Versa 36000 is one of the largest
cranes in the world. As configured here,
it had a lifting capacity of 2,500 tons, a 420-foot long boom on the front-end,
and a mast in the back. On July 18,
2008, Deep South was in the final stages of assembling its Versa 36000 at the
Lyondell-Bassell Refinery when the crane operator placed the crane into a
“backwards overhaul” position,
a maneuver that rendered the crane unstable by raising the boom
too high and placing too much weight on the backside mast. The crane was still in an overhaul position
three hours later when it fell over backwards, killing the operator and three
other Deep South employees. The site
supervisor responsible for overseeing the crane operator’s work was standing behind
the crane at the time of the collapse, unaware the crane had been in a
backwards overhaul position.
DISCUSSION
I.
Serious Citation 1, Item 1, Instance
3
In this instance, the Secretary
alleges that Deep South violated the general duty clause by exposing its
employees to the hazard of being struck by the boom of a crane or a dropped
load due to the company’s failure to ensure that its site supervisor ensured
that the crane operator was qualified to operate the Versa 36000. See Otis
Elevator Co., 21 BNA OSHC 2204, 2206, 2004-2009 CCH
OSHD ¶ 32,920, p. 52,545 (No. 03-1344, 2007) (establishing general duty
clause violation requires Secretary to show (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 and, in addition, that the employer knew
or, with exercise of reasonable diligence, could have known of violative
condition).[1]
In affirming this instance, the judge found that the site
supervisor “was simply told to ‘familiarize’” the operator with the Versa
36000, which he determined was insufficient to ensure the site supervisor
verified the operator’s qualifications.
On review, Deep South claims that its site manager took steps to address
the alleged hazard by adequately instructing the site supervisor to verify the
crane operator’s qualifications to operate the Versa 36000. Deep South also claims that the Secretary did
not meet her burden of showing that the cited conduct was foreseeable and,
therefore, failed to establish that it had knowledge of the violative
condition. For the
following reasons, we reject both arguments.
Deep
South’s Instructions
In assessing the adequacy
of instructions an employer provides to its employees, the Commission considers
evidence of whether they pertain to the particular jobsite hazards and
applicable regulations, and are sufficiently specific. See
Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1020, 1991-1993 CCH
OSHD ¶ 29,315, p. 39,381 (No. 87-1067, 1991) (noting that duty to instruct
employees on hazard recognition and avoidance is “satisfied when the employer
instructs its employees about the hazards they may encounter on the job and
about the regulations applicable to those hazards”), aff’d, 978 F.2d 744 (D.C.
Cir. 1992) (unpublished); see also Danis Shook Joint Venture XXV, 19 BNA
OSHC 1497, 1500, 2001 CCH OSHD ¶ 32,397, p. 49,864 (No. 98-1192, 2001)
(finding that employer failed to provide sufficiently specific instructions
based on three brief conversations that occurred by happenstance and failed to
make “some effort to assure that employees understood the meager information it
did provide”), aff’d, 319 F.3d 805
(6th Cir. 2003).
The Secretary alleges
numerous shortcomings in the instructions Deep South gave to ensure that the
crane operator was qualified to operate the Versa 36000. According to the Secretary, Deep South failed
to instruct site supervisor Aydell to ensure that the crane operator could read the load
charts, use the correct boom angle to radius chart, and operate and understand
the controls. She also contends that
Deep South did not instruct Aydell to verify the crane operator had taken and
passed written tests for the Versa 36000, and satisfactorily completed a
hands-on operational test to determine proficiency. These allegations track the specific
requirements for operators and operators-in-training found in section 5-3.1.2
of the American Society of Mechanical Engineering’s Safety Standard for Cableways,
Cranes, Derricks, Hoists, Hooks, Jacks, and Slings (“ASME B30.5”). The ASME B30.5 requirements include: (1)
successfully passing a physical examination; (2) satisfactory completion of a
written exam covering operational characteristics for the crane type; (3)
demonstrated ability to read, write, comprehend, and use arithmetic and
load/capacity charts; (4) satisfactory completion of a written and oral test on
load/capacity chart usage of various configurations for the crane type; and (5)
satisfactory completion of an operation test demonstrating proficiency in
handling the specific crane type.
The evidence in the
record supports the Secretary’s allegations.
Specifically, the record shows that Craig Stanford, Deep South’s site
manager, was familiar with ASME B30.5, and recognized it as the crane standard
applicable to the Versa 36000. But at
the hearing, Stanford could not remember precisely what he told Aydell, other
than instructing him to “familiarize” the crane operator with the Versa 36000.[2] Stanford, therefore, never addressed the specific
requirements listed in ASME B30.5.[3] And despite testifying that he knew the
operator “never had any practical examination or tests over his skills on the
36000,” Stanford did not instruct Aydell to ensure that the crane
operator had passed the written test, which was required under ASME B30.5
before the operator could enter the crane’s cab even as an
operator-in-training. Nor did Stanford
instruct Aydell to provide the crane operator with instructions regarding the
Versa 36000’s load chart usage or ensure his satisfactory completion of a
hands-on operational test demonstrating the operator’s proficiency in operating
the Versa 36000. In fact, Aydell admitted that he did not even know the minimum requirements to
operate the Versa 36000, and there is no evidence that his own
experience operating the Versa 36000 provided him with knowledge of the
specific steps he should take to ensure the operator was qualified.
Deep South argues that
Aydell’s oversight of the crane operator was adequate which, it claims, shows
that Stanford properly instructed Aydell.
See Archer-Western Contractors,
Ltd., 15 BNA OSHC at 1020, 1991-1993 CCH OSHD at p. 39,380 (examining
employees’ performance as evidence of training). Even if we were to accept the principle that
Aydell’s actions could establish the adequacy of Deep South’s training, we find
his oversight deficient. See N & N Contractors, Inc., 18 BNA
OSHC 2121, 2127, 2000 CCH OSHD ¶ 32,101, p. 48,241 (No. 96-0606, 2000) (noting
that employees’ failure to tie off was evidence of employee practices, not employer training, and
did not show whether training was deficient), aff’d, 255 F.3d 122 (4th Cir. 2001). Before the accident, Aydell spoke with other
Deep South supervisors who had previously supervised the crane operator on
other cranes, but Aydell never determined—from them or anyone else—whether the
crane operator was specifically qualified to operate the Versa 36000. Nor did Aydell ensure that the operator took
and passed the required written and oral tests before entering the cab to
operate the crane. And although Aydell instructed the crane operator to go
inside the cab of the Versa 36000 with another experienced crane operator, he
told neither one what instructions were to be given or received during that
time. In addition, the record shows that
on the morning of the collapse Aydell reviewed the load charts and controls
with the crane operator on two separate occasions—once while they were outside
of the cab and later, while they were inside the cab. But Aydell never took the opportunity while
he was inside the cab to verify that the operator knew how to use the cab’s “Cranesmarttm” electronic display, which
provides the operator with a number of vital details about the crane’s
functions. With only
brief instructions, Aydell allowed the operator to operate the Versa 36000
alone while he stood outside in an area from which he could not even see that
the crane was in an overhaul position.
Accordingly, we find that
Deep South failed to properly instruct site supervisor Aydell to ensure that
the crane operator was qualified to operate the Versa 36000.
Knowledge /Foreseeability
To prove a violation of
the general duty clause, the Secretary must show that the employer had
knowledge of the hazard. Otis
Elevator, 21 BNA OSHC at 2207, 2004-2009 CCH OSHD ¶ 32,920, p. 53,546. Under Commission precedent, a supervisor’s
knowledge of his own misconduct may be imputed to his employer, but in the
Fifth Circuit, to which this case could be appealed, the Secretary must also show that the supervisor’s
misconduct was foreseeable. W.G. Yates & Sons Constr. Co.,
Inc. v. OSHRC, 459 F.3d 604, 608-09 (5th Cir. 2006) (“a
supervisor’s knowledge of his own malfeasance is not imputable to the employer
where the employer’s safety policy, training, and discipline are sufficient to
make the supervisor’s conduct in violation of the policy unforeseeable”)
(emphasis omitted).[4] Where, as here, our decision could be
appealed to a particular circuit, we will apply the law of that circuit even
though its precedent differs from ours. See, e.g., D.M. Sabia Co., 17 BNA OSHC 1413, 1414, 1995-1997 CCH OSHD ¶
30,930, p. 43,058 (No. 93-3274, 1995), rev’d
on other grounds, 90 F.3d 854 (3d Cir. 1996); Kerns
Bros. Tree Serv., 18 BNA OSHC 2064, 2067-68, 2000 CCH OSHD ¶ 32,053,
p. 48,003 (No. 96-1719, 2000) (applying Third Circuit precedent requiring
Secretary to show foreseeability of supervisor’s misconduct).
The judge found here that
Deep South had knowledge of the failure to ensure that the crane operator was
qualified based on Aydell’s knowledge of his own failure to ensure the crane
operator’s qualifications. But in imputing Aydell’s knowledge to Deep South,
the judge did not determine whether the Secretary met her burden of proving
foreseeability as required by the Fifth Circuit’s decision in Yates.
On review, the Secretary acknowledges that she carries this burden in
the Fifth Circuit and maintains that she has shown the violation was
foreseeable based on the deficiencies in Stanford’s instructions, which were
delivered to Aydell orally, on only one occasion, and several weeks before the
crane operator entered the cab for the first time.[5]
We find the Secretary has established that the
violation was foreseeable. As noted in
more detail above, the instructions Stanford gave Aydell were
insufficient and did not address many of the specific safety-related
requirements listed in ASME B30.5. The key
deficiency here is Stanford’s failure to explain to Aydell that the crane operator
would have to demonstrate a number of proficiencies in crane operation, which
specifically included passing written and oral tests, before being qualified to
operate the Versa 36000. Indeed, under
ASME B30.5, passing the written test is a prerequisite for
operating the crane, even as an operator-in-training. Under these circumstances, we find that
Stanford’s instructions to Aydell were completely inadequate.
And we also find that Stanford’s inadequate
instruction made it foreseeable that Aydell would fail to ensure that the crane
operator possessed the requisite qualifications. Cf.
Manganas Painting Co., v. Sec’y, 273 F.3d 1131 (D.C. Cir. 2001) (rejecting
employer’s claim that it lacked knowledge of violation, as employer taught
employees to use particular form of noncompliant fall protection, and cannot
now argue that it was unaware employees followed its directions).[6] We also find that the context in which
Stanford gave these instructions to Aydell—orally and on only one occasion
weeks ahead of time—made it all the more necessary that he follow up to ensure
that Aydell fully understood and would implement the instructions. See
Danis Shook, 19 BNA OSHC at 1499, 2001 CCH OSHD at p. 49,864 (finding
failure to provide required instructions where cursory information was provided
through “chance conversations that failed to convey critical
information”). For these reasons, we
conclude that Aydell’s violative conduct was foreseeable and his knowledge is,
therefore, imputable to Deep South.
Accordingly, we affirm Citation 1, Item 1, Instance 3.[7]
II.
Repeat Citation 2, Item 1
Under this item, the Secretary
alleges that the crane operator was not “qualified by training or experience to
operate” the Versa 36000 as required by § 1926.20(b)(4). The term “qualified” is
defined in 29 C.F.R. § 1926.32(m) 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 product.”
In affirming the
citation, the judge determined that the crane operator was not qualified to
operate the Versa 36000 by either training or experience. On review, Deep South contends that the
operator was qualified by both training and experience to operate the Versa
36000 under the direct supervision of the site supervisor. For the following reasons, we affirm the
judge.
Crane
Operator’s Training
The Secretary contends
the crane operator was not qualified to operate the Versa 36000 because he was
not properly trained pursuant to the requirements of ASME B30.5. Deep South contends that because the crane
operator held a certification from the National Commission for the Certification
of Crane Operators (“NCCO”) he was qualified to operate the crane by virtue of
his training. The judge found that the
crane operator’s training fell short when measured against the qualifications
set out in ASME B30.5, and that his NCCO training was insufficient in light of
the characteristics of the Versa 36000.
As a threshold matter, we
reject Deep South’s claim that the requirements in ASME B30.5 should not be a
basis for evaluating its compliance with the cited standard, § 1926.20(b)(4). Expert witnesses for both parties testified
that the crane industry recognizes ASME B30.5 as an industry standard for crane
operator qualifications. The Secretary’s
expert witness, Bradley Clossen, explained that the ASME standard is the source
of the NCCO criteria, and the ASME “is the only recognized set of criteria or
steps to become qualified.” Deep South’s
expert witness, Ronald Kohner, a member of the ASME B30.5 subcommittee and a
commissioner for the NCCO, agreed that the crane industry recognizes the operator
qualification standards reflected in ASME B30.5. And Deep South has conceded that the crane
operator did not meet the requirements of ASME B30.5. Indeed, as discussed above, the crane
operator had not taken and passed the necessary tests or demonstrated
comprehension of overhaul prevention, as required by the ASME B30.5
criteria. Thus, we agree with the judge
that the crane operator’s training did not meet the operator qualifications
criteria of ASME B30.5.
We also agree that the
crane operator was not qualified by virtue of his NCCO training either. As both expert witnesses explained, the
operator had not received critical components of the training specifically
required to operate the Versa 36000. For
instance, the crane operator had passed the NCCO tests for a lattice boom
crawler and large telescopic cranes, but was not NCCO-certified on a lattice
boom truck, a test which Kohner conceded would have covered outrigger issues
relevant to the Versa 36000. And
Clossen, the Secretary’s expert, explained that the NCCO is a basic test that
does not address crane attachments, such as masts and booms, nor does it cover
the “Superlift” configurations—a “configuration that’s bigger than what the
base crane can do”—used by the Versa 36000.
In fact, as the judge noted, there is not a single question on any test
provided by NCCO that would have tested the crane operator’s knowledge
concerning backwards overhaul limitations on the Versa 36000. Even site manager Stanford and owner Landry
agreed that the crane operator’s NCCO certification did not fully qualify him
to operate the Versa 36000. Under these
circumstances, we find that the operator’s NCCO certifications did not satisfy
the training required under §1926.20(b)(4).
Accordingly, we conclude
that the crane operator was not qualified by training to operate the Versa
36000.
Crane
Operator’s Experience
Deep South claims that
the crane operator’s prior experience also qualified him to operate the Versa
36000, relying on the twenty-seven days he spent operating the Versa 28000, a
large crane with features similar to the Versa 36000, but with less lifting
capacity. The judge found that this
prior experience was insufficient because of the difference in overhaul risks
between the two Versa cranes. We agree.
Deep South’s expert
Kohner explained that the operator’s experience on the Versa 28000, which also
had a 420-foot long boom, served only as “partial” qualification for operating
the Versa 36000, and both Kohner and Deep South’s site manager Stanford conceded
that the crane operator was not qualified to operate the Versa 36000 without
supervision based on his prior experience.
Despite these admissions, Deep South maintains that the crane operator’s
experience on the Versa 28000 is nonetheless transferable to the Versa 36000
because both cranes require an operator to check the load charts to determine
the overhaul limitations of the crane.
But the record shows that each crane has different load charts as well
as different overhaul risks. Indeed, the
crane operator’s experience with the Versa 28000 using a 420-foot long boom
could not have fully prepared him for the overhaul risk on the Versa 36000
because it is undisputed that, as configured when the crane operator used it,
the Versa 28000 could not be put into an overhaul position. Moreover, in claiming that the crane
operator’s experience on the Versa 28000 qualified him to operate the Versa
36000, Deep South does not suggest, nor does the record show, that the crane
operator had ever been trained on or was qualified to operate the Versa
28000. See Herbert Vollers, Inc.,
4 BNA OSHC 1798, 1800-1801, 1976-1977 CCH OSHD ¶ 21,230, p. 25,518 (No.
9747, 1976) (finding operator unqualified under § 1926.20(b)(4) due to
lack of specific instructions on machine at issue despite years of experience
on smaller machines), aff’d without
opinion, 565 F.2d 151 (3d Cir. 1977).
Accordingly, we find that
that the crane operator was not qualified by experience to operate the Versa
36000. Thus, we affirm Citation 2, Item
1.
Characterization
A violation is repeated
if the employer was previously cited for a substantially similar violation and
that citation became a final order before the occurrence of the alleged
repeated violation. Bunge Corp., 638 F.2d 831, 837 (5th Cir. 1981); Potlatch Corp., 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No.
16183, 1979). The Secretary establishes a prima facie case of substantial
similarity by showing that the prior and present violations are for failure to
comply with the same standard. Monitor Constr. Co., 16 BNA OSHC 1589,
1594, 1993-1995 CCH OSHD ¶ 30,338, p. 41,825 (No. 91-1807, 1994).
The judge affirmed
Citation 2, Item 1 as repeat based on a prior citation issued to Deep South for
violating the same standard cited here, § 1926.20(b)(4), at a worksite in
Coffeyville, Kansas. The Kansas case
involved a fatal crane accident with an unqualified crane operator at the
controls. The citation became a final order pursuant to a settlement agreement
on February 25, 2008, less than six months before the violation here. On review, Deep South disputes the repeat
characterization of the violation, claiming that the earlier citation involved
a different type of crane and circumstances.
We find no support in the
record for Deep South’s contention. The
same standard was violated in both cases, and the underlying violation became a
final order before the instant violation occurred. In addition, the prior violation and the one
before us clearly involve substantially similar hazards—a failure to adequately
train a crane operator. See Stone Container Corp., 14 BNA OSHC
1757, 1762, 1987-1990 CCH OSHD ¶ 29,064, p. 38,819 (No.88-310, 1990) (“the
principal factor to be considered in determining whether a violation is
repeated is whether the prior and instant violations resulted in substantially
similar hazards”). Under these
circumstances, we affirm the repeat characterization of Citation 2, Item
1.
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 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
Energy & Automation, Inc., 20 BNA OSHC 2196, 2201, 2004-2009 CCH OSHD ¶
32,880, p. 53,231 (No. 00-1052, 2005).
On review, the parties do
not dispute the judge’s assessment of a $5,000 grouped penalty for Citation 1,
Item 1, Instance 3 and Instance 2, an affirmed violation not on review, and a
$35,000 penalty for Citation 2, Item 1.
The record reflects that Deep South employs approximately three hundred
people and received an OSHA citation within the last three years. On the issue of gravity, Deep South employees
at the worksite were exposed to the risk of serious injury or death from an
accident involving the super-lift crane.
Therefore, we find that the penalty amounts assessed by the judge were
appropriate.
ORDER
We affirm Citation 1, Item 1,
Instance 3 as serious and assess a $5,000 grouped penalty with Citation 1, Item
1, Instance 2. Also, we affirm Citation
2, Item 1 as repeat, and assess a penalty of $35,000.
SO ORDERED.
__/s/_____________________________
Thomasina V. Rogers
Chairman
__/s/_____________________________
Cynthia L. Attwood
Dated: August
27, 2012 Commissione
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
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Secretary of Labor, |
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Complainant, |
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v. |
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Deep South Crane & Rigging Co.,
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Respondent. |
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OSHRC DOCKET NO. 09-0240
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,
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
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 (10th 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
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
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. OHoro 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.[8]
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).[9]
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
“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.”
Penalties
In
calculating the appropriate penalty for affirmed violations, Section 17(j) of
the Act requires the Commission to give due 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
[1] On review, Deep South
does not dispute the seriousness of the alleged hazard, its recognition of that
hazard, or the feasibility of abatement.
[2] Stanford
testified that he also intended for a lead operator to be inside the cab with
the crane operator when he raised and lowered the boom and moved the
crane. However, he did not claim to have
given such instructions to Aydell.
[3] We note that Deep South owner Mitchell Landry testified that the company has a training program that includes classroom instruction and operational training on the specific equipment the employee is being trained to operate. Not only it is unclear whether this program met the requirements of ASME B30.5 for crane operators, but there is also no indication that Stanford ever instructed Aydell to ensure the operator completed the program.
[4] This case arose
in Texas, which is within the jurisdiction of the Fifth Circuit.
[5] We reject the
Secretary’s claim that the issue of foreseeability is not appropriate for
Commission review because it was not “sufficient[ly]” raised before the
judge. Foreseeability is part of the
Secretary’s required knowledge showing in this relevant circuit. Yates, 459
F.3d at 608-09; see Trinity Indus. Inc., 206
F.3d 539, 542 (5th Cir. 2000) (“[k]nowledge is a fundamental element of the
Secretary’s burden of proof”) (citing Carlisle Equip. Co. v. Sec’y of Labor, 24 F.3d 790, 792-93
(6th Cir. 1994)).
[6] Based on our
determination that the Secretary has shown that the violation was foreseeable,
Deep’s South’s allegation of unpreventable supervisory misconduct fails. See Danis Shook, 19 BNA OSHC at 1503,
2001 CCH OSHD at p. 49,867 (finding that unpreventable supervisory misconduct
defense fails “here largely for the same reasons upon which we base our finding
of constructive knowledge”); Yates,
459 F.3d at 609 n.7 (noting considerations for affirmative defense “closely
mirror the foreseeability analysis required to determine if a supervisor’s
knowledge of his own misconduct . . .
can be imputed to the employer”).
[7] The parties do
not dispute the serious characterization of the violation, and we find no basis
to depart from the proposed characterization.
See KS Energy Servs. Inc., 22
BNA OSHC 1261, 1268 n.11, 2004-2009 CCH OSHD ¶ 32,958, p. 53,925 (No. 06-1416,
2008) (affirming judge’s serious characterization where parties did not dispute
characterization on review).
[8] Since Complainant established all of the elements necessary for a prima facie violation of the original cited regulation, the alternative alleged violation of 29 C.F.R. §1926.550(a)(13)(ii) or (iii) will not be addressed.
[9] There was some dispute as to whether the 2004 or 2007 version of ASME B30.5 applied to the crane on the date of the accident. However, Mr. Closson confirmed that the 2007 version did not become effective, and thus a requirement in the industry, until March 2009. (Tr. 672-673; Ex. C-6, pp. ii & ix). Therefore, the 2004 version is the recognized industry standard in this instance. (Tr. 675).