OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
1924
Building - Room 2R90, 100 Alabama Street, S.W.
Atlanta,
Georgia 30303-3104
|
Secretary
of Labor, |
|
|
Complainant, |
|
|
v. |
OSHRC Docket No.:
17-0679 |
|
Excel
Modular Scaffold & Leasing Company dba Excel Scaffold & Leasing, |
|
|
Respondent. |
|
Appearances:
Lindsay
A. Wofford, Esq.
Office
of the Solicitor, U.S. Department of Labor, Dallas, Texas
For
Complainant
Steven
O. Grubbs, Esq.
Grant Dorfman, Esq.
Sheehy,
Ware & Pappas, P.C., Houston, Texas
For
Respondent
Before: Administrative Law Judge Sharon
D. Calhoun
DECISION
AND ORDER
Excel
Modular Scaffold & Leasing Company dba Excel Scaffolding and Leasing
(Excel) contests a Citation and Notification of Penalty (Citation) issued by
the Secretary. The Secretary issued the
Citation upon the recommendation of Compliance Safety and Health Officer (CSHO)
Joshua Mandrell following a fatality investigation he
conducted at the dock area of the Marathon Galveston Bay Refinery in Texas
City, Texas. An Excel employee drowned
when a scaffolding component to which he had attached his personal fall arrest
system collapsed and dragged him into Galveston Bay.
Excel timely contested the
Citation. The Court held a hearing in
this matter on March 19 and 20, 2018, in Houston, Texas. The Court held the record open for admission
of a post-hearing witness deposition.
The Court closed the record by order issued May 9, 2018. The parties filed briefs on June 25, 2018.
The
Secretary cited Excel for four serious violations of the construction standards
of the Occupational Safety and Health Act of 1970, 29 C.F.R. §§ 651-678
(Act). The Secretary withdrew Item 2
(alleging a violation of 29 C.F.R § 1926.451(a)(6) for failing to ensure
scaffolds were constructed in accordance with the design by a qualified person)
during the April 5, 2018, post-hearing deposition of David Doucet (Doucet Deposition, Tr. 85-86). The Secretary withdrew Item 3 (alleging a
violation of 29 C.F.R § 1926.451(g)(2) for failing to have a competent person
determine the feasibility and safety of providing fall protection for employees
erecting supported scaffolds) at the beginning of the hearing on March 19, 2018
(Tr. 7).
Item 1 alleges Excel
violated 29 C.F.R § 1926.106(d). The
parties stipulated Excel “violated 29 C.F.R § 1926.106(d) by failing to have a
skiff immediately available at Dock 34.
Employees were exposed to the cited condition and Respondent reasonably
could have known of the violative condition[.]” (Agreed Prehearing Statement, ¶ D.3)
Item 4 alleges Excel violated 29 C.F.R § 1926.502(d)(15) by failing to
ensure the anchorage points used by employees for attachment of personal fall
arrest equipment were capable of supporting at least 5,000 pounds per
employee. The Secretary proposes a
penalty of $12,675.00 for each item.
For the reasons discussed
below, the Court AFFIRMS Item 1 as
serious and assesses a penalty of $12,675.00.
The Court VACATES Item 4 and
assesses no penalty.
JURISDICTION AND COVERAGE
Excel timely contested
the Citation and Notification of Penalty on April 3, 2017. The parties stipulate the Commission has
jurisdiction over this action and Excel is a covered business under the Act (Agreed Prehearing Statement, ¶ D.1, D.2;
Tr. 8). Based on the stipulations and
the record evidence, the Court finds the Commission has jurisdiction over this
proceeding under § 10(c) of the Act and Excel is a covered employer under §
3(5) of the Act.
BACKGROUND
The Marathon Refinery
(Marathon) hired Excel to construct scaffolds underneath its three docks in
Galveston Bay. Marathon planned to use
the scaffolds when repairing and repainting the underside of the docks (Tr.
40). The scaffolds were a series of
connected bays, measuring 10 feet by 10 feet, spanning the area underneath the
docks (Tr. 81-82). The scaffolds were
“hanging scaffolds” because the support legs of the scaffold were attached to
the I-beams located underneath the dock (Tr. 41-42). The scaffold platform was approximately 6 or
7 inches above the surface of the water (Tr. 210).
To construct the hanging
scaffolds, Excel secured a horizontal bar, called a set-up bar, to the bottom
flange of the I-beam using two beam clamps (Tr. 53-55). Right angle clamps secured the hanging
vertical legs of the scaffold to the set-up bar (Tr. 60). Each of the vertical legs of the hanging
scaffold consisted of a 4-foot long pipe attached to a 10-foot long cupped
scaffold leg (Tr. 53-57-59). Horizontal
runners snapped to the cups of the scaffold leg to create horizontal bracing
for the scaffold. Upon completion of the
scaffold frame, Excel planked it to create a working surface (Tr. 58-59, 82).
Crews of six workers
erected the scaffold bays, three on each side of the bay. The chain of command for the crew ran from
the foreman to the leadmen, then to the carpenters, and then to the helpers. On September 12, 2016, an Excel crew
including leadman Charles Donnelly Jr., leadman L.G. (the decedent), and
carpenter Adrian Guajardo constructed one side of a scaffold bay underneath an
area known as Dock 34. Pedro Ventura was
the crew’s supervisor (Tr. 40-46, 63, 226-27).
All crew members were equipped with personal fall arrest systems and
were wearing flotation devices (Tr. 91).
After finishing the first bay, the crew began constructing one side of a
second bay underneath the dock, to be connected to the first bay. L.G. crawled on pipes underneath the dock to
get to the location to attach the set-up bar to the I-beam (Tr. 73-77,
81-82). After L.G. had secured the
set-up bar, Guajardo handed L.G. the vertical leg, which L.G. attached using a
right clamp (Tr. 63, 83, 87-88, 174-75).
The crew members then
secured two horizontal runners to connect the vertical leg to the existing
scaffold bay but were unsuccessful in connecting the bottom runner. Donnelly crawled from the bay to the dangling
vertical leg using the pipes underneath the dock and climbed down the vertical
leg of the scaffold in an attempt to connect the
bottom runner. He was unable to do
so. Donnelly climbed up the vertical leg
and L.G. crawled over to the vertical leg and climbed down it to attempt the
connection. L.G. attached his lanyard to
the vertical leg. As he attempted the
connection, the vertical leg fell into the water, dragging L.G. with it. No lifesaving skiff was available at the
site. Two Excel employees jumped into
the water in an attempt to rescue L.G. The weight of the vertical leg, however,
dragged L.G. to the bottom of Galveston Bay, which was approximately 18 feet
deep at that point. Coast Guard divers
recovered L.G.’s body later that day (Exh. R-5, p.
53; Tr. 83-92, 184-187).
THE
CITATION
The
Secretary’s Burden of Proof
To establish a violation,
“the Secretary must show by a preponderance of the evidence that: (1) the cited
standard applies; (2) there was a failure to comply with the cited standard;
(3) employees had access to the violative condition; and (4) the cited employer
either knew or could have known of the condition with the exercise of
reasonable diligence.” Astra Pharma.
Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in relevant part, 681 F.2d 169 (1st Cir. 1982).
ITEM
1: ALLEGED SERIOUS VIOLATION OF § 1926.106(d)
Item
1 of the Citation alleges:
At Dock 34, on
September 12, 2016, a lifesaving skiff was not immediately available where
employees were erecting a tube and clamp scaffold over water.
Section 1926.106(d) provides:
At least one lifesaving skiff shall be immediately available
at locations where employees are working over or adjacent to water.
Excel Violated § 1926.106(d)
Section 1926.106 (“Working over or near water’) is found in
Subpart E—Personal Protective and Life Saving
Equipment of the construction standards, which sets forth the requirements
for employees engaged in construction work.
OSHA defines construction work as “construction, alteration, and/or
repair, including painting and decorating.” §1926.32(g). An employer engages in construction work when
“its
employees erect, configure, dismantle, and repair the scaffolds that were
necessary for” other employees to perform construction work. Access Equip. Sys., Inc., 18 BNA OSHC 1718, n.
7 (No. 95-1449, 1999). Excel was in the process of erecting scaffolds so Marathon could “repair and repaint the
underside of the dock and for them to go back and sandblast and paint, do any
modification as far as welding or refabricating.” (Tr. 40) “Excel does not dispute the applicability
of the standard.” (Excel’s brief, p. 2)
The Court finds § 1926.106(d) applies to the cited conditions.
The parties stipulate Excel
“violated 29 C.F.R. § 1926.106(d) by failing to have a skiff immediately
available at Dock 34. Employees were exposed
to the cited condition and Respondent reasonably could have known of the
violative condition[.]” (Agreed
Prehearing Statement, ¶ D.3) There is, therefore, no dispute that the cited
standard applies, Excel failed to comply with the standard, Excel’s employees
had access to the violative condition, and Excel knew of the condition.
The Court finds Excel’s violation of § 1926.106(d) is established.
Excel Abandoned Infeasibility Defense
Excel asserted thirty defenses in
its Answer, including the affirmative defense of infeasibility (Answer, p. 3, ¶ 11). Excel devotes four pages of its brief arguing
this defense, under the heading “Excel Met Its Burden to Demonstrate the
Infeasibility of Complying with 29 CFR 1926.106(d) Underneath Dock 34.” (Excel’s Brief, p. 2) In the Agreed Prehearing Statement, however, the parties do not identify
infeasibility as an issue of fact or law with regard to Item 1:
F. Concise statement of issues of fact that
remain to be litigated:
Citation 1, Item 1:
1. Whether failing to have a lifesaving skiff immediately
available exposed Respondent’s employees to a substantial probability of death
or serious injury under the facts and circumstances of this case; and
2. Whether the proposed penalty is appropriate.
(Agreed Prehearing Statement, p. 15)
G. Concise statement of issues of law that
remain to be litigated:
1. Whether Citation 1,
Item 1 is a serious violation of the Act[.]
(Agreed Prehearing
Statement, p. 17)
As noted, the parties stipulated
Excel “violated 29 C.F.R. § 1926.106(d) by failing to have a skiff immediately
available at Dock 34. Employees were
exposed to the cited condition and Respondent reasonably could have known of
the violative condition[.]” (Agreed
Prehearing Statement, ¶ D.3) The Court sought to clarify the
specific issues remaining with respect to Item 1. When directly questioned on this matter,
counsel for Excel omitted any mention of the infeasibility defense.
The Court: [T]he stipulations on that particular
violation, does that indicate that -- let's see -- Citation 1 is not an issue.
You are saying here that the Respondent -- there is an agreement that
Respondent violated that by not having the skiff immediately available; that
the employees were exposed to the cited condition; and that Respondent
reasonably could have known of the violative condition. It looks like
applicability of the standard may be the only thing that you are not agreeing
to? Does the Court not understand what that stipulation is?
Counsel for Excel: Basically the
stipulation is, Judge, we stipulate we did not comply with the standard.
However, we challenge the serious type of the violation classification.
The Court: So you are only
challenging the classification?
Counsel for Excel: The
classification and, of course, that goes along with that, the penalty amount.
The Court: Okay. All right. I just wanted to be sure
that I understood what was remaining at issue in this item. All right. So we are talking about the serious classification and the
corresponding penalty, which is $12,675.
(Tr. 8-10) (emphasis added)
Having
declared at the beginning of the hearing that only the characterization and
penalty of Item 1 were at issue, Excel cannot now rely on the infeasibility
defense. “Central to requiring the pleading of affirmative defenses is
the prevention of unfair surprise. A defendant should not be permitted to ‘lie
behind a log’ and ambush a plaintiff with an unexpected defense. Bettes v. Stonewall Insurance
Co., 480
F.2d 92 (5th Cir.1973); see also Bull's Corner Restaurant, Inc. v.
Director, Federal Emergency Management Agency, 759
F.2d 500 (5th Cir.1985).” Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987). Excel’s prehearing stipulations rendered its
post-hearing defense unexpected. The
Secretary does not address infeasibility in his brief. It would be prejudicial to the Secretary to
consider the defense. The Court
determines Excel abandoned the infeasibility defense when it stipulated only
the characterization and penalty of Item 1 remained at issue.[1]
Characterization
of the Violation
The Secretary
characterized the violation of § 1926.106(d) as serious. A serious violation is
established when there is “a substantial probability that death or serious physical
harm could result [from a violative condition] . . . unless the employer did
not, and could not with the exercise of reasonable diligence, know of the
presence of the violation.” 29 U.S.C. § 666(k).
“That
provision does not mean that the occurrence of an accident must be a
substantially probable result of the violative condition but, rather, that a
serious injury is the likely result should an accident occur.” Miniature Nut &
Screw Corp.,
17 BNA OSHC 1557, 1558 (No. 93-2535, 1996).
Excel focuses on the circumstances of L.G.’s
death, arguing it “could not have reasonably foreseen the hazard that
eventuated, and the absence of the skiff was not a factor in [L.G.’s]
fatality. Several eyewitnesses
testified, without contradiction, that [L.G.] fell under the water immediately
and that it was not possible to retrieve him from the surface.” (Excel’s brief,
p. 7) With
regard to L.G., Excel contends, “A skiff would not have saved him.” (Id. at 8)
The Court finds Excel’s focus solely on the
tragic death of L.G. to be too narrow.
It is well-established that finding a violation of an OSHA standard is
not dependent on the specific facts of a particular accident;
a violation may be found in the absence of any accident. See Boeing Co.,
5 BNA OSHC 2014, 2016 (No. 12879, 1977) (finding of a violation does not depend
on the cause of the particular accident that led to the case); Concrete Constr. Corp., 4 BNA OSHC 1133,
1135 (No. 2490, 1976) (“The Act may be violated even though no injuries have
occurred, and even though a particular instance of noncompliance was not the
cause of injuries.”); Kansas City Power
& Light Co., 10 BNA OSHC 1417, 1422 (No. 76-5255, 1982) (“Indeed, both
the judge and Respondent improperly define the hazard at issue in terms of the
asserted cause of the specific incident that led to injury[.]”).
Here, L.G. was working with two other crew
members on his side of the scaffold bay.
Foreman Ventura was on the top of the dock moving materials, and three
members of his crew were on the other side of the bay. Excel leadman Mario Castro, one of those crew
members, jumped into the water in an attempt to save
L.G. (Tr. 92). To access the hanging scaffolds, Excel
employees used a ladder extending from the top of the dock down to the water
(Tr. 76). All of these employees were
working over or near water on September 12, 2016, and
had access to the hazard of falling into the water. If an employee fell but avoided L.G.’s
unfortunate circumstance of being attached to a heavy object that dragged him
to the bottom of the bay, the presence of a skiff could well prevent serious
injury.
Excel quotes the
deposition testimony of David Doucet in support of its argument that failure to
provide a skiff was not a serious violation of § 1926.106(d).[2] The testimony, however, underscores Excel’s
misplaced focus on the details of L.G.’s death.
Doucet was asked why he believed the CSHO’s determination of high
severity for the violation was incorrect.
Doucet: Because the skiff is -- is
there to rescue someone and prevent them from drowning, but since all the
employees had on personal flotation devices, then that's -- would prevent them
from drowning. At that point the skiff is just to -- there to pull you out of
the water. So there wouldn't be a -- a drowning hazard to be able to justify a serious
classification.
Q.: Yeah. And if
-- if an employee is -- is
tied off to -- I don't know how much -- let's say, just for the sake of argument, 100 pounds of -- of steel and equipment -- if he's tied off to it when it
falls and goes to the bottom of the channel, would you expect that to happen in
less than three to four minutes?
. . .
Doucet: It would be before that, yes, sir.
Q.:
Even while -- even if he's wearing a personal flotation device?
Doucet: Yes, sir.
Q.:
Would a rescue skiff, in the situation that presented itself in this
case, have done anything to have saved [L.G.’s] life?
Doucet: No, sir.
(Doucet
Deposition, Tr. 84)
Doucet
argues the skiff was unnecessary because L.G. sank immediately and could not
have been helped by its presence. He
also contends the other employees would not have been helped by a skiff if they
had fallen into the water “since all the employees had on personal flotation devices
[that] would prevent them from drowning.” (Id.)
The
Commission has held, however, that the Secretary is not required to prove a
drowning hazard exists to establish a violation of § 1926.106(d). In RGM Constr. Co., 17 BNA OSHC 1229 (No. 91-2107, 1995), the employer argued it was
not in violation of § 1926.106(d) “because
Excel’s failure to have a lifesaving skiff immediately
available where its employees were working over or adjacent to water increased
the likelihood of death or serious injury to an employee falling into the
water. The use of personal flotation devices (which is required by §
1926.106(a)) does not eliminate the hazard of drowning. Guajardo was asked if his flotation device
“would hold your head up if you fell into the water.” He responded, “Maybe not with tools, but
yes.” (Tr. 91) If
an employee working over or adjacent to water ends up in the water, an
unexpected event has already occurred.
He or she may have fallen after being injured, or be injured in the
fall, depending on the distance. The
fallen employee is likely to be disoriented or panicked. Being weighed down by tools or tangled in a
lanyard are potential additional stressors.
Having a lifesaving skiff immediately available lessens the likelihood
of death or serious physical injury.
The Court determines the Secretary properly
characterized Excel’s violation of § 1926.106(a) as serious.
PENALTY
DETERMINATION
“‘In assessing penalties,
section 17(j) of the OSH Act, 29 U.S.C. § 666(j), requires the Commission to
give due consideration to the gravity of the violation and the employer's size,
history of violation, and good faith.’ Burkes
Mech., Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). ‘Gravity is a
principal factor in the penalty determination and 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 (No. 00- 1052, 2005)
(citation omitted).” N. E. Precast, LLC; & Masonry Servs.,
Inc, 26 BNA OSHC 2275, 2282 (Nos. 13-1169 and13- 1170, 2018).
Excel employed over 250 employees. It did not have a history of OSHA violations
at the time of the fatality (Tr. 311).
Excel has a written safety program, and the Court credits the company
with good faith.
The gravity of the
violation is high and its severity outweighs the other
factors. “‘Gravity, unlike good faith, compliance history and size, is relevant
only to the violation being considered in a case and therefore is usually of
greater significance. The other factors are concerned with the employer
generally and are considered as modifying factors.’ Natkin & Co. Mech. Contractors, 1 BNA OSHC 1204, 1205 n.3 (No. 401,
1973).” Id.
The absence of a
lifesaving skiff when employees are working continually over or adjacent to
water exposed the employees to death by drowning. The Secretary states three employees were
exposed to the hazard (Secretary’s brief, p. 23).[3] The Secretary contends the employees were
exposed “for approximately one year.” (Id.) The alleged violation description, however,
alleges the violative condition occurred “on September 12, 2016.” The Court finds the duration of exposure to
the violation is limited to the day specified in the alleged violation
description. OSHA’s Safety Narrative of the incident states it occurred shortly before
lunch (Exh. R-3, p. 2). The Court determines the duration of exposure
is approximately four hours. The likelihood
of injury was high. Excel required its employees to wear personal flotation
devices, which provided some precaution against injury.
Based on the foregoing
factors, the Court determines a penalty of §12,675.00 is appropriate for Item
1.
Item
4: Alleged Serious Violation of § 1926.502(d)(15)
Item 4 of the Citation
alleges:
At Dock 34, on
September 12, 2016, the anchorage point used by employees working under the
dock while erecting the scaffolding was not capable of supporting at least
5,000 pounds.
Section 1926.502(d)(15)
provides:
Anchorages used for attachment of personal fall
arrest equipment shall be independent of any anchorage being used to support or
suspend platforms and capable of supporting at least 5,000 pounds (22.2 kN) per employee attached, or shall be designed, installed,
and used as follows:
(i) as part of a
complete personal fall arrest system which maintains a safety factor of at
least two; and
(ii) under the supervision of a qualified person.
Applicability of the Cited Standard
Section
1926.502(d)(15) is found in Subpart M—Fall Protection. Section 1926.500(a)(1) provides in
pertinent part: “This subpart sets forth requirements and criteria for fall
protection in construction workplaces covered under 29 CFR part 1926.” Excel
was under contract to erect scaffolds at Dock 34 to enable Marathon to repair
and repaint the dock, a construction activity. Section 1926.502(d) provides:
“Personal fall arrest systems and their use shall comply with the provisions
set forth below[,]” which includes § 1926.502(d)(15).
Excel
argues § 1926.502(d)(15) does not apply to the cited
conditions because § 1926.451(g)(1), found in Subpart L—Scaffolds, provides:
Each employee on a
scaffold more than 10 feet (3.1 m) above a lower level shall be protected from
falling to that lower level.
Since it is undisputed L.G. was working less than 10 feet
above the surface of the water at the time of the accident (he was
approximately 6 or 7 inches above the water’s surface), Excel argues he was not
required to use fall protection at all; therefore, Excel contends, the cited
standard does not apply to the cited conditions.
The Secretary counters with the subparagraph following
the one relied on by Excel. Section
1926.451(g)(2) provides:
Effective September 2, 1997, the employer shall have a
competent person determine the feasibility and safety of providing fall
protection for employees erecting or dismantling supported scaffolds. Employers
are required to provide fall protection for employees erecting or dismantling
supported scaffolds where the installation and use of such protection is
feasible and does not create a greater hazard.
The Secretary argues,
“Excel determined it was feasible to use fall protection and employees
understood that Excel required 100% tie-off while erecting the scaffold (Tr.
141-42, 486). Once Excel required
employees to use fall protection, it was required to comply with the OSHA
standards outlining its safe use.” (Secretary’s brief, p. 14)[4] The Secretary also points out §
1926.451(g)(3) incorporates only § 1926.502(d) from the § 1926.502 standards:
In addition to meeting the requirements of 1926.502(d),
personal fall arrest systems used on scaffolds shall be attached by lanyard to
a vertical lifeline, horizontal lifeline, or scaffold structural member.
The Court agrees with
Excel that § 1926.502(d)(15) does not apply to the
cited condition, but reaches that conclusion using a different rationale,
involving the intertwined elements of applicability and exposure to a
hazard. The Court determines the cited
standard addresses fall hazards, exacerbated by the fall distance, resulting in
death or serious physical injury. It
does not contemplate the hazard of drowning and so does not apply to the cited
condition.
The Secretary argues L.G.
and Donnelly “were exposed when they anchored their lanyards to the vertical
leg in an attempt to connect the bottom horizontal
runner. [L.G.] was attached to the
vertical leg when it collapsed, and he drowned because of the accident. Employee exposure is established.” (Secretary’s
brief, pp. 21-22) The
Secretary does not say exposure to what. His language implies the hazard to which
the violation of § 1926.502(d)(15), a fall protection
standard, exposed the employees was that
of drowning.
One of the elements of a
violation which the Secretary must prove is that employees were exposed to the
violative condition. Gary
Concrete Prod., 15
BNA OSHC 1051, 1052, 1991–93 CCH OSHD ¶ 29,344, p. 39,449 (No. 86–1087, 1991).
The Secretary may prove employee exposure to a hazard by showing that, during the course of their assigned working duties, their
personal comfort activities on the job, or their normal ingress-egress to and
from their assigned workplaces, employees have been in a zone of danger or that
it is reasonably predictable that they will be in a zone of danger. Kaspar Electroplating Corp., 16 BNA OSHC 1517, 1521,
1993 CCH OSHD ¶ 30,303, p. 41,757 (No. 90–2866, 1993); Armour Food Co., 14 BNA OSHC 1817, 1824, 1987–90 CCH OSHD ¶
29,088, p. 38,886 (No. 86–247, 1990).
RGM Constr. Co., 17 BNA OSHC at 1234.
A
“zone of danger” is “determined by the hazard
presented by the violative condition, and is normally
that area surrounding the violative condition that presents the danger to
employees which the standard is intended
to prevent.” Gilles & Cotting, Inc., 3
BNA OSHC 2002, 2003 (No. 504, 1976) (emphasis added). Section 1926.502(d)(15)
is found in Subpart M—Fall Protection. Section 1926.501(b) requires the employer to
provide fall protection for its employees when they are working 6 feet or more
above a lower level. The standards found
in Subpart M are, therefore, intended to prevent falls to lower levels of 6
feet or more.
In the present case, it is
undisputed L.G. and Donnelly were located approximately 6 to 7 inches above the
water when they were tied off to the scaffold component. The Commission has held the surface of water
is a “level” within the meaning of the fall protection standards. Section 1926.500(b)
defines lower levels as “those areas
or surfaces to which an employee can fall.
Such areas or surfaces include … water.”
Section
1926.502(d)(15) is intended to prevent death or
serious physical injuries resulting from the impact of striking the lower
surface, not drowning hazards. Support for this position is found in the
discussion of the fall protection standards in Safety Standards for Fall Protection in the Construction Industry:
The Eastern Contractors Association, Inc. (ECA)
(Ex. 2-3) commented that “The fall protection requirements 6 feet on open sided
floors and 10 feet on scaffolds should remain as is,” and explained that the
situations were different and each presented unique
problems. In the proposed revision to subpart L, Scaffolds, the Agency proposed
(§1926.451(e)) that employees working on scaffolds more than 10 feet above
lower levels be protected from fall hazards (51 FR 42707, November 25, 1986).
The appropriate height threshold for fall protection on scaffolds will be set
in the final rule for subpart L. The ECA also stated the height at which fall
protection is required should be the same for all trades. OSHA agrees and this final rule reflects that concern.
On the other hand, the
SSFI (Ex. 2-89) recommended that the proposed and existing height thresholds
for fall protection at unprotected sides and edges, low-pitched floors, roof,
etc. be changed from 6 feet (1.8 m) to 10 feet (3.05 m). Based on the BLS
injury and fatality data, discussed above (Ex. 3-6), OSHA believes that employees performing construction work on walking
and working surfaces 6 feet (1.8 m) or more above lower levels are exposed to a
significant risk of injury and death. Accordingly,
more workers would be injured or killed if the height threshold for fall
protection were raised to 10 feet (3.05 m). Therefore, OSHA is not making
the suggested change.
Safety Standards for Fall Protection in the
Construction Industry, Final Rule, 59 FR 40672-01 (August 9, 1994) (emphasis added).
It
is the distance of the potential fall that creates the hazard contemplated by
the standards found in Subpart M. When the hazard of falling is accompanied by
the hazard of drowning, OSHA has promulgated standards that anticipate that
possibility. For example, § 1915.71(j)(i), found in Part
1915—Occupational Safety and Health Standards for Shipyard Employment, provides
Scaffolding, staging, runways, or working platforms which are
supported or suspended more than 5 feet
above a solid surface, or at any distance above the water, shall
be provided with a railing which has a top rail whose upper surface is
from 42 to 45 inches above the upper surface of the staging,
platform, or runway and a midrail located halfway
between the upper rail and the staging, platform, or runway.
(emphasis added)
Section 1915.71(j)(1) presumes a
hazard of falling to a solid surface when the distance is more than 5 feet, but presumes falling into water from any height is
hazardous. Likewise, § 1915.71(j)(3)
requires specific equipment to prevent drowning for employees working over
water, while requiring fall protection only for employees working more than 5
feet above a solid surface:
Rails may be omitted where the structure of the vessel
prevents their use. When rails are omitted, employees working more than 5 feet above solid surfaces shall be
protected by safety belts and life lines meeting the requirements of §§
1915.159 and 1915.160, and employees
working over water shall be protected by buoyant work vests meeting the
requirements of § 1915.158(a).
The standards found in Subpart M are specification, not performance standards. “Specification standards, in
contrast [to performance standards], detail the precise equipment, materials,
and work processes required to eliminate hazards.” Cleveland Wrecking Co., 24 BNA OSHC 1103, 1106
(No. 14-0816, 2013). Specification
standards presume a hazard if the standard is violated. “Where a
standard presumes a hazard, . . . the Secretary need only show
the employer violated the terms of the standard.” Sanderson
Farms, Inc. v. Perez, 811 F.3d 730, 735 (5th Cir. 2016). The fall protection standards presume fall hazards, not drowning hazards.
Applying § 1926.502(d)(15), a fall protection
standard, to a condition that poses a drowning hazard deprives the employer of
fair notice. “[H]azards
must be defined in a way that gives an employer fair notice of
its obligations under the Act by identifying the conditions or practices over
which the employer can reasonably be expected to exercise control” Missouri Basin Well Serv., Inc., 26 BNA OSHC 2314, n. 23 (No. 13-1817, 2018).
If § 1926.502(d)(15) were to apply to the cited condition, the Secretary
failed to establish exposure to a fall hazard.
Neither Subpart M, addressing
fall protection for construction, nor § 1926.451, addressing fall protection
for scaffolds, requires protection for falls of approximately 6 inches. If the hazard at issue is drowning, the cited
standard does not apply because drowning is not the hazard § 1926.502(d)(15) is intended to prevent. Although the elements of applicability and
exposure are intertwined, the fundamental deficiency in the Secretary’s case is
the inapposite choice of the standard cited.
The Court
concludes § 1926.502(d)(15) does not apply to the
cited condition. Item 4 is vacated.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
The foregoing decision
constitutes the findings of fact and conclusions of law in accordance with Fed.
R. Civ. P. 52(a).
ORDER
Based on the foregoing
decision, it is hereby ORDERED:
1. Item 1 of Citation No. 1, alleging a serious
violation of § 1926.106(d), is AFIRMED and
a penalty of $12,675.00 is assessed; and
2. Item 4 of Citation No. 4, alleging a serious
violation of § 1926.502(d)(15) is VACATED, and no penalty is assessed.
/s/
Date: October 24, 2018 Sharon
D. Calhoun
Administrative
Law Judge
Atlanta,
Georgia
[1]
To prove infeasibility, an employer must
show by a preponderance of the evidence that “(1) literal compliance with the
terms of the cited standard was infeasible under the existing
circumstances and
(2) an alternative protective measure was used or there was no feasible
alternative measure.”’ Westvaco
Corp., 16
BNA OSHC 1374, 1380 (No. 90-1341, 1993).
Excel argues the area underneath
Dock 34 where L.G. fell was cramped and not navigable by a skiff. The record establishes, however, Excel’s
employees were also working on the dock and accessed the hanging scaffolds by
using a ladder from the top of the dock.
There is no evidence of difficulty navigating a skiff if an employee
fell from the dock or the ladder into an area of the water that was not
underneath the dock. Had Excel not
abandoned the infeasibility defense, the Court would find Excel failed to establish
the infeasibility of complying with § 1926.106(d). An employer is required to provide “limited
compliance where it furnishes some protection, even if exact compliance is not
possible.” Cleveland Consolidated,
Inc. v. O.S.H.R.C., 649
F.2d 1160, 1167 (5th Cir.1981)” Peterson
Bros. Steel Erection Co. v. Reich, 26 F.3d 573, 579 (5th Cir. 1994). Furthermore, Excel touts as its “alternative
protective measure” the personal floatation devices provided to its
employees. This is not an alternative
measure, but is required by § 1926.106(a) (“Employees working over or near
water, where the danger of drowning exists, shall be provided with U.S. Coast
Guard-approved life jacket or buoyant work vests.”).
[2]
Doucet is a former Area
Director for OSHA. Excel proffered him
as an expert witness in matters concerning OSHA standards and the items at
issue in this case during his April 5, 2018, deposition. The Secretary objected, arguing Doucet’s
testimony does not meet the standard set out in Fed. R. Evid. 702, and that an
expert’s interpretation of OSHA standards is not appropriate in Commission
proceedings (Doucet Deposition, Tr.
18). The Secretary subsequently filed a
motion to strike Doucet’s testimony. On
August 3, 2018, the Court issued an order sustaining the Secretary’s objection
to the qualification of Doucet as an expert witness in this proceeding. The Court denied the Secretary’s motion to
strike Doucet’s testimony altogether (Order
Sustaining Secretary’s Objection to Expert Testimony and Order Denying
Secretary’s Motion to Strike Expert’s Testimony).
[3]
The record indicates more
than three Excel employees had access to the violative condition, but the Court
accepts the Secretary’s representation of three exposed employees for the
purpose of determining the penalty.
[4]
Excel requires its employees
to tie off when working 6 feet or more above a lower level (Tr. 515).