SECRETARY OF LABOR, 	
Complainant, 	

v.

	OSHRC Docket No. 07-1851
ASSOCIATED UNDERWATER SERVICES, 	
Respondent, 	
PILEDRIVERS LOCAL UNION 2396, 	
Authorized Employee Representative. 	
	



ON BRIEFS:

Ronald J. Gottlieb, Attorney; Heather R. Phillips, Counsel for Appellate
Litigation; Joseph M. Woodward, Associate Solicitor of Labor for
Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor;
U.S. Department of Labor, Washington, DC

              For the Complainant

Erica A. Krikorian; Bullivant Houser Bailey P.C., Seattle, WA

              For the Respondent



*DECISION*

**Before: ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

On August 7, 2007, an Associated Underwater Services ("AUS") employee
working approximately 140 feet underwater was killed when a metal
piling, also known as a "pile," fell on him. After conducting an
inspection of the worksite, the Occupational Safety and Health
Administration ("OSHA") issued AUS two citations alleging a total of
three violations of the Occupational Safety and Health Act of 1970 ("OSH
Act"), 29 U.S.C. §§ 651-678. The parties settled two of the citation
items prior to the hearing. The remaining citation item alleged a
serious violation of 29 C.F.R. § 1910.421(d)(2), which provides that the
"[p]lanning of a diving operation shall include an assessment of the
safety and health aspects of the following: . . . (2) Surface and
underwater conditions and hazards." OSHA proposed a $2,500 penalty for
the alleged violation. Following the hearing, Administrative Law Judge
Sidney J. Goldstein^^(1) <#N_1_>^issued a decision vacating the citation
item.

For the reasons discussed below, we reverse the judge's decision, affirm
the item as serious, and assess the Secretary's proposed penalty of $2,500.

*BACKGROUND*

**In August 2007, AUS was working on a project with General Construction
Company ("GC") at BP's Cherry Point facility in Blaine, Washington. The
project involved the construction of an oil containment boom and
included the installation of metal pilings into the ocean floor as
foundation for the boom. AUS provided underwater diving support to GC
for its installation of the pilings, which GC positioned and drove into
the ocean floor. Each piling weighed approximately 8,600 pounds and
measured 22 feet long.

**To drive the pilings into the ocean floor, GC used a "vibratory
hammer."^^(2) <#N_2_>^The vibratory hammer has hydraulic jaws designed
to grip a steel plate, known as a "pad-eye," which GC welded to the top
of each piling. With the jaws clamped to the piling's pad-eye, the
piling is directly suspended from the hammer. This type of hammer
vibrates the piling at 25 vibrations per second, and the vibrations,
combined with the downward pressure from the weight of the hammer, cause
the piling to work itself into the ocean floor. The pile-driving process
required GC's crew to first lift each piling off a barge using a crane
hooked to the vibratory hammer that gripped the piling, and then lower
the piling down to the ocean floor. The pad-eye was 1.25 inches thick
but the jaws of the hammer could only open a maximum of 1.17 inches, and
it is undisputed that GC's efforts to ensure a proper grip on the
pad-eye damaged the hammer's jaws.

**Once the piling was positioned on the ocean floor, GC's crew raised it
one to two feet, and AUS sent a diver down to ensure that the area
underneath the piling was free of obstructions. After determining that
the area was clear, the diver radioed instructions to GC to lower the
piling until it went into the ocean floor and reached the "point of
refusal"--the depth in the ocean floor that the piling would reach
through the force of its own weight and the weight of the hammer. The
diver then instructed GC to activate the hammer. During the pile-driving
operation, the diver either stayed near the base of the piling or moved
to a position above the piling, in which case the diver had to ask GC to
stop the hammer periodically so the diver could go back to the base of
the piling and make sure the piling was being driven plumb. Prior to the
accident, GC had successfully driven four pilings into the ocean floor
on two separate days.

**AUS prepared for each day's dive by conducting step-by-step pre-dive
meetings with its employees. It is undisputed that at the pre-dive
meeting held on the day of the accident, AUS discussed a dive plan with
its employees that did not address the hazards of suspended loads or the
possibility of a falling piling.^^(3) <#N_3_>^On that day, GC attached a
wire cable to the piling before lowering it into the water. The cable
had not been used on any prior dives and was attached at the request of
GC's parent company. The AUS diver then entered the water to check for
obstructions and subsequently informed GC that too much of the cluster
of hoses that control the functions of the hammer had accumulated in the
water. While GC adjusted the hoses, the diver received authorization
from AUS's dive supervisor to remove the wire cable attached to the
piling. The diver removed the wire cable, returned to the base of the
piling, and radioed GC to activate the hammer. Almost immediately after
GC activated the hammer, the piling came loose from the hammer's damaged
jaws and fell on the diver, killing him.

*DISCUSSION*

*/I. Alleged violation /*

Section 1910.421(d)(2) requires an employer to assess surface and
underwater conditions and hazards in planning a diving operation.
Because it is a performance standard, the employer is required to assess
only those hazards that a "reasonably prudent employer" would recognize.
/See W.G. Fairfield Co./, 19 BNA OSHC 1233, 1235, 2000 CCH OSHD
¶ 32,216, p. 48,864 (No. 09-0344, 2000), /aff'd/, 285 F.3d 499 (6th Cir.
2002); /see also Thomas Indus. Coatings, Inc./, 21 BNA OSHC 2283, 2287,
2004-09 CCH OSHD ¶ 32,937, p. 53,736 (No. 97-1073, 2007) ("[P]erformance
standards . . . are interpreted in light of what is reasonable."). A
reasonably prudent employer is a reasonable person familiar with the
situation, including any facts unique to the particular industry. /W.G.
Fairfield Co./, 19 BNA OSHC at 1235, 2000 CCH OSHD at pp. 48,864-65;
/Farrens Tree Surgeons, Inc./, 15 BNA OSHC 1793, 1794, 1991-93 CCH OSHD
¶ 29,770, p. 40,489 (No. 90-998, 1992); /see also Brennan v.
Smoke-Craft, Inc./, 530 F.2d 843, 845 (9th Cir. 1976). Under Commission
precedent, industry practice is relevant to this analysis, but it is not
dispositive. /W.G. Fairfield/, 19 BNA OSHC at 1235-36, 2000 CCH OSHD at
p. 48,865; /Farrens Tree Surgeons/, 15 BNA OSHC at 1794, 1991-93 CCH
OSHD at p. 40,489; /see also Smoke-Craft/, 530 F.2d at 845 (noting that
in absence of any industry custom the need to protect against an alleged
hazard "may often be made by reference to" what a reasonably prudent
employer "familiar with the industry would find necessary to protect
against this hazard").

Here, the Secretary asserts that a reasonably prudent employer would
have assessed any hazards arising out of GC's pile-driving operation, in
particular the recognized hazard of a falling piling. Because AUS failed
to assess this hazard in the dive plan discussed during its pre-dive
meeting, the Secretary maintains that AUS failed to comply with the
standard. AUS contends, however, that it was responsible only for
assessing hazards arising out of its own diving activities and that it
could not have foreseen GC would use a vibratory hammer with jaws that
were too small to grip the piling's pad-eye. In vacating the citation,
the judge agreed with AUS that GC's use of an inadequate hammer, as well
as the resulting fatal accident, was unforeseeable. He also concluded
the Secretary failed to establish that an employer in the commercial
diving industry would have conducted its pre-dive hazard assessment any
differently than AUS did here.

As a threshold matter, we find the judge erred in analyzing the citation
in terms of the foreseeability of the accident and the events that led
to it.^^(4) <#N_4_>^The Commission has long held that "it is the hazard,
not the specific incident that resulted in injury or might have resulted
in injury, that is the relevant consideration in determining the
existence of a recognized hazard." /Arcadian Corp./, 20 BNA OSHC 2001,
2008, 2004-09 CCH OSHD ¶ 32,756, p. 52,074 (No. 93-0628, 2004) (citing
/Kelly Springfield Tire Co./, 10 BNA OSHC 1970, 1973, 1982 CCH OSHD
¶ 26,223, p. 33,113 (No. 78-4555, 1982), /aff'd/, 729 F.2d 317 (5th Cir.
1984)); /see also/ /American Wrecking Corp./, 19 BNA OSHC 1703, 1707
n.4, 2001 CCH OSHD ¶ 32,504, p. 50,400 n.4 (No. 96-1330, 2001)
(consolidated) ("Determining whether the standard was violated is not
dependent on the cause of the accident."), /aff'd in part/, /rev'd in
part/, 351 F.3d 1254 (D.C. Cir. 2003); /Pressure Concrete Constr. Co./,
15 BNA OSHC 2011, 2017, 1991-93 CCH OSHD ¶ 29,902, p. 40,812 (No.
90-2668, 1992) (finding that the employer may not have foreseen the
precise circumstances of the accident but generally knew the potential
dangers associated with the location where its employees were working).
The hazard here was that the piling could fall, not that the jaws of the
vibratory hammer were too small for the pad-eye. Thus, a determination
regarding whether the accident or its precise cause was foreseeable is
legally irrelevant.

We also find that the judge's analysis of the reasonably prudent
employer test was too narrow in that he considered only the practices of
the commercial diving industry to determine the scope of AUS's
assessment obligation under the cited standard. Indeed, we find that a
reasonably prudent employer familiar with AUS's situation would have
assessed whether any hazards that might have arisen from the onsite work
activities, including those of GC, could impact its divers.
Specifically, the term "hazards" as used in § 1910.421(d)(2) encompasses
not only those hazards directly related to AUS's own industry, but also
those created by fellow employers on the jobsite to which AUS divers may
be exposed. The standard does not limit which surface and underwater
hazards should be assessed in an employer's dive plan--in fact, it
expressly requires that "diving operations shall be /coordinated with
other activities in the vicinity/ which are likely to interfere with the
diving operation." 29 C.F.R. § 1910.421(e) (emphasis added). Even the
preamble to § 1910.421 recognizes that "[e]xamples of surface and
underwater conditions which may appropriately be evaluated include not
only natural conditions . . . but /surface conditions/ . . . ; they also
include /underwater hazards such as mechanical devices in the vicinity
of the dive/ . . . ." 42 Fed. Reg. 37659 (July 22, 1977) (emphasis
added). And such a requirement is consistent with Commission precedent
requiring an employer to detect and assess the hazards to which its
employees may be exposed, even those it did not create. /See Pressure
Concrete/, 15 BNA OSHC at 2016, 1991-93 CCH OSHD at p. 40,811
(determining it was employer's responsibility to inquire about and
examine worksite for potential hazards rather than city's responsibility
to inform employer of potential hazards); /Grossman Steel & Alum.
Corp./, 4 BNA OSHC 1185, 1189, 1975-76 CCH OSHD ¶ 20,691, p. 24,791 (No.
12775, 1975) (finding that an employer should take reasonable steps to
(1) detect hazards created by other employers but to which its employees
are exposed, and (2) protect its employees from those hazards); /see
also W.G. Fairfield/, 19 BNA OSHC at 1236, 2000 CCH OSHD at p. 48,865
(finding that employers must assess hazards related to the environment
in which they are operating). Under these circumstances, we find that
AUS was required to determine and assess how GC's pile-driving
activities could affect AUS's divers.

Given this obligation, a reasonably prudent employer familiar with AUS's
situation would have considered not only the commercial diving industry,
but also the construction industry, in determining what hazards to
assess. By limiting his inquiry to the commercial diving industry, the
judge overlooked the fact that AUS was assisting GC with work that
plainly falls within the definition of construction. Construction work
is defined as work "for construction, alteration, and/or repair,
including painting and decorating." 29 C.F.R. § 1926.32(g). And it is
undisputed that GC was driving pilings into the seabed to create the
foundation for a new oil containment boom. /See United Geophysical
Corp./, 9 BNA OSHC 2117, 2121, 1981 CCH OSHD ¶ 25,579, pp. 31,905-06
(No. 78-6265, 1981) (stating that construction work involves the
erection, modification, or repair of a building or structure). AUS's own
expert acknowledged that driving a piling underwater is no different
from driving a piling above ground. And the preamble to the commercial
diving standard specifically recognizes that "[m]any divers are
subjected to the dangers commonly associated with . . . construction
work." 42 Fed. Reg. 37651 (July 22, 1977). Under these circumstances, we
find that AUS was obligated to assess the construction-related dangers
to which its employees may be exposed while assisting GC with the
pile-driving operation.^^(5) <#N_5_>^

Finally, we find that had a reasonably prudent employer familiar with
AUS's situation conducted the requisite assessment, it would have
recognized the possibility that a piling could fall during the
pile-driving operation and pose a hazard to its employees. Information
about this hazard was readily available to AUS through GC's written
safety program, which recognized the possibility of a falling piling:

Pile driving has the inherent risk of parts, equipment, concrete, and
material falling from the pile while lofting or driving. . . . . /During
pile driving operations all employees and others not involved with the
activity should be kept well clear of the fall radius and immediate work
area/. . . . . Piling can break, rigging and crane booms can fail and
fall . . . .

. . . .

A secondary sling, independent of the vibrator with a capacity exceeding
the maximum anticipated load must be in place /in the event the piling
pulls free of the vibrator jaws/ during extraction, placing or lofting.

Indeed, the operating manual for the vibratory hammer also identified
this hazard, cautioning, "[a]lways attach safety line to pile when
extracting or hoisting into position."^^(6) <#N_6_>^And a warning sign
on the vibratory hammer--which AUS's dive supervisor admitted observing
at the worksite and AUS's expert acknowledged should have prompted AUS
to address the hazard--read: "Danger! Falling piles can cause serious
injury or death. Do not use [vibratory hammer] as a pile lifting
device." In these circumstances, we find the record establishes that the
danger posed by a falling piling was a recognized hazard that AUS should
have discovered and assessed to satisfy the requirements of the cited
standard.^^(7) <#N_7_>^/See Siemens Energy & Automation Inc./, 20 BNA
OSHC 2196, 2199, 2004-09 CCH OSHD ¶ 32,880, pp. 53,229-30 (No. 00-1052,
2005) (considering, among other evidence, manufacturer's manual and
other publications to determine compliance with performance-oriented
standard); /Young Sales Corp./, 7 BNA OSHC 1297, 1298, 1979 CCH OSHD
¶ 23,768, pp. 28,821-22 (No. 8184, 1979) (holding that manufacturer
warnings establish that a hazard is recognized).

In sum, we find that AUS did not take the steps a reasonably prudent
employer in its situation would have taken to discover the hazards it
needed to assess, specifically those related to a falling piling.
Because AUS did not assess these hazards, we conclude that it failed to
comply with § 1910.421(d)(2) and affirm the citation.

*/II. Characterization and Penalty /*

The parties do not challenge the Secretary's characterization of the
violation as serious. As we have found, AUS failed to address the hazard
of a falling piling in its pre-dive assessment, and its divers were
allowed to remain next to the piling while the vibratory hammer was
activated. As is evident from the accident here, if the 8,600-pound
piling detached from the hammer's jaws, it would likely fall on a diver
and cause death or serious physical harm. /See J.A. Jones/, 15 BNA OSHC
2201, 2208, 1991-93 CCH OSHD ¶ 29,964, p. 41,027 (No. 87-2059, 1993)
(finding violation of instruction standard serious where measures
required are necessary to protect against serious or life-threatening
hazards); 29 U.S.C. § 666(k) (defining serious violation as one in which
"there is a substantial probability that death or serious physical harm
could result"). Accordingly, we affirm the violation as serious.

The Secretary proposed a penalty of $2,500. When assessing a penalty
under section 17(j) of the OSH Act, 29 U.S.C. § 666(j), the Commission
must give "due consideration to the appropriateness of the penalty with
respect to the size of the business of the employer being charged, the
gravity of the violation, the good faith of the employer, and the
history of the previous violations." The principal factor in a penalty
determination is gravity, which "is based on the number of employees
exposed, duration of exposure, likelihood of injury, and precautions
taken against injury." /Siemens, /20 BNA OSHC at 2201, 2004-09 CCH OSHD
at p. 53,231.

On review, AUS does not dispute the penalty amount proposed by the
Secretary. We find that this amount is appropriate in light of the
section 17(j) penalty factors. Under the circumstances here, we consider
the gravity of the violation to be high. Based on the record, we further
find that reductions for size and lack of prior history are appropriate
but see no basis for a reduction based on good faith. Accordingly, we
assess a penalty of $2,500.**

*ORDER*

We affirm Citation 1, Item 1, as serious and assess a penalty of $2,500.

SO ORDERED.

/s/

Thomasina V. Rogers

Chairman





/s/

Cynthia L. Attwood

Commissioner Dated: February 28, 2012

























------------------------------------------------------------------------











OSHRC DOCKET NO. 07-1851

















Appearances:



Patricia Drummond, Esq., Office of the Solicitor, U.S. Department of
Labor, Seattle, Washington

For Complainant



Erica Krikorian, Esq., Janis Puracal, Esq., Bullivant, Houser, Bailey,
P.C., Seattle, Washington

For Respondent



Leiter Hockett, Senior Representative, Kent, Washington

For Piledrivers Local Union #2396



Before: Administrative Law Judge Sidney J. Goldstein



*DECISION AND ORDER*

*Procedural History*

**This proceeding is before the Occupational Safety and Health Review
Commission ("the Commission") pursuant to Section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §651 /et seq./
("the Act"). The Occupational Safety and Health Administration ("OSHA")
conducted an inspection of an Associated Underwater Services, Inc.
("Respondent") worksite at Cherry Point, Washington between August 8,
2007 and October 10, 2007. As a result of the inspection, OSHA issued a
/Citation and Notification of Penalty/ to Respondent alleging three
violations of the Act. Citation 1 Item 1 alleged a serious violation of
29 C.F.R. §1910.421(d)(2). Citation 1 Item 2 alleged a serious violation
of 29 C.F.R. §1926.550(a)(19). Citation 2 Item 1 alleged an other than
serious violation of 29 C.F.R. §1910.1200(f)(5). Citation 1 Item 2 and
Citation 2 Item 1 were settled by the parties prior to trial. Therefore,
only Citation 1 Item 1 remained in dispute at the time of hearing. The
Secretary proposed a penalty of $2,500 for Citation 1 Item 1. Respondent
timely contested the citation and an administrative trial was held on
April 27-28, 2009 in Seattle, Washington. The Pile Drivers Local Union
#2396 elected party status and participated during the hearing. (Tr. 5,
56).

Approximately two weeks before trial, the court received /Motions in
Limine of Respondent/ and /Complainant's Opposition to Respondent's
Motions in Limine/. In response to the motions, the Secretary stipulated
that she was not alleging that Respondent violated Section 5(a)(1) of
the Act in this case. Therefore, the court granted Respondent's request
that any evidence and argument in support of a Section 5(a)(1) violation
be excluded. Respondent's other requests for relief were stayed pending
the production of evidence at the hearing and are hereby DENIED to the
extent such requested findings of fact are inconsistent with this decision.

Each party submitted a timely post-trial brief. Therefore, this case is
ready for disposition.

*Jurisdiction*

Jurisdiction of this action is conferred upon the Occupational Safety
and Health Review Commission pursuant to Section 10(c) of the Act. The
record establishes that at all times relevant to this action, Respondent
was an employer engaged in a business affecting interstate commerce
within the meaning of Section 3(5) of the Act, 29 U.S.C. §652(5).
(/Complaint /and/Answer/).

*Factual Findings*

**This inspection resulted from a fatality accident which occurred on
August 7, 2007, in which commercial diver Christopher Primeau was killed
while working approximately 140 feet underwater in Cherry Point,
Washington. (Tr. 24, 122, 159, 258). Respondent, a commercial diving
company, was subcontracting with British Petroleum ("BP") to provide
underwater diving support for the installation of metal pilings. (Tr.
24). The pilings were going to serve as underwater structural support
for an oil containment boom being installed in an area where oil tankers
off-load to refineries. (Tr. 24-25).

General Construction, another BP subcontractor at the jobsite, was
responsible for positioning and driving the pilings into the ocean
floor. (Tr. 25, 283). Respondent's job was to observe the driving of the
pilings into the ocean floor, through the use of underwater divers, to
ensure they were being driven correctly. (Tr. 25). Respondent had no
direct contractual relationship with General Construction on this
jobsite. (Tr. 283). Each piling weighed approximately 8,000 pounds and
measured 22 feet long. (Ex. 10).

At the beginning of this project, Respondent's dive crew participated in
a large, multi-employer safety meeting which included General
Construction employees, tugboat operators, and others, in which the
entire project was "walked through." (Tr. 526). Included in that
multi-party safety meeting was a discussion of General Construction's
responsibilities and the specific manner in which Respondent's dive crew
would be involved. (Tr. 526). In addition, Respondent conducted a daily,
step-by-step, pre-dive discussion with its dive crew during "toolbox"
meetings on this job. (Tr. 270-278). These daily pre-dive discussions
included anticipated hazards and methods to address them. /Id/. The
details of these daily dive crew meetings are extensively described by
Kerry Donohue, Respondent's Vice President and Dive Supervisor, over the
course of eight pages of trial transcript. /Id/. The pre-dive meeting on
the day of the fatal accident was even more comprehensive than usual
because Respondent had a new diver present on the dive crew. (Tr. 287).

Mr. Donohue has been involved in commercial diving operations for thirty
years and has extensive experience. (Tr. 239-250). Just to become a
certified commercial diver requires 400-500 hours of academic and diving
training, including such things as basic diving operations,
decompression tables, chamber operations, and practical welding and
burning skills. (Tr. 260). Even then, a certified commercial diver would
start at the lowest entry level. The Association of Diving Contractors
International ("ADCI") recognizes three levels of divers: (1) air divers
(first level), (2) mixed-gas divers (second level), and (3) saturation
divers (highest level). (Tr. 261-262). In saturation diving experience
alone, the most complicated and dangerous type of commercial diving, Mr.
Donohue personally has more than a year of actual submerged time. (Tr.
242, 250).

In addition to the multi-party pre-dive safety meeting and daily dive
team meetings, Respondent had prepared a written "Work & Dive Operations
Plan" for this specific dive which included, among other things, an
"Activity Hazards Analysis." (Tr. 397; Ex. 5). In this written, pre-dive
document, Respondent identified "rigging failure" as a possible hazard
on this particular dive project, and listed multiple recommended
controls for addressing that hazard. They included: (1) use only
approved rigging in good condition, (2) use proper rigging techniques,
(3) ensure all equipment is secured to deck for transport, (4) personnel
instructed in the hazards associated with working around cranes, (5) all
hands stand clear of equipment and other items on crane hook, and (6)
tag lines to be used to control loads on hook. (Ex. 5, p. 130).

The pilings being installed were driven one at a time into the sea
floor, during "slack tides" when there was not a lot of water movement
and it was safer for the divers. (Tr. 29, 38). Respondent's employees
were not involved in any way with General Construction's lifting of the
pilings off the barge and lowering them down to the ocean floor. (Tr.
363). In fact, Respondent's dive crew did not typically arrive on site
each day until after General Construction's crew was prepared to drive
the pilings because the Respondent's hourly costs to BP were higher than
the General Construction crew. (Tr. 284-285).

Respondent's divers did not enter the water until the piling had already
been lowered into position approximately one foot off the sea floor.
(Tr. 38-39). Respondent's practice was to have the diver enter the water
and follow the hydraulic control lines from the surface down to the
location of the piling. (Tr. 29). Once the diver was on the bottom, he
checked the sea floor for any obstructions that might interfere with the
driving of the piling, then backed away approximately 3-4 feet, and
instructed the Dive Supervisor to tell the General Construction crew to
activate the hammer which drives the pilings. (Tr. 30).

Respondent's divers' primary responsibilities on this jobsite were to:
(1) monitor the underwater pile-driving for any problems during the
driving process, and (2) command an "all stop" if a problem developed.
(Tr. 320-321). To perform these duties, divers had to remain within a
few feet of the piling while it was being slowly driven since visibility
at that depth was only 3-4 feet. (Tr. 320-321). There was a wired
telephone communication system between the underwater diver and the Dive
Supervisor on the barge. (Tr. 31). Communications between the diver and
the Dive Supervisor were repeated to ensure no miscommunication
occurred. (Tr. 30). There was also a video camera attached to the
diver's helmet, which transmitted a visual image to the Dive Supervisor
during the course of the dive. (Tr. 31; Exs. 3, 7).

At the time of the accident, four pilings had already been successfully
driven into the sea floor over the course of the previous two days. (Tr.
45). Three different divers had been in the water monitoring the
pile-driving up until the time of the accident: Chris Primeau
(deceased), Kirk Neumann, and Marty Edwards. (Tr. 67). The previous four
pilings had been driven into the sea floor using an impact hammer. (Tr.
51). On the day of the accident, the General Construction crew changed
to a vibratory hammer to drive the pilings into the sea floor. (Tr. 51).
An impact hammer drives pilings through repeated downward blows, whereas
a vibratory hammer causes the piling to vibrate (25 vibrations per
second) while downward pressure causes it to work itself into the sea
floor. (Tr. 51, 155). The parties agreed that vibratory hammers are
designed to "fail closed," that is, hammer jaws are interlocked so they
will not inadvertently open while the vibration feature is engaged. (Tr.
217, 504). The hammers were secured, and lowered, by a crane positioned
on a barge at the surface of the water. (Tr. 290-291; Ex. 1).

On the day of the accident, General Construction attached (for the first
time) a wire cable to the piling as it was lifted off the barge and
lowered into position in the water. (Tr. 32, 39, 52, 293-294; Ex. 1). On
the previous dives, the pilings were positioned while being held only by
the grip of the hammer. (Tr. 52). However, the record establishes that
Respondent did not have a diver in the water during the movement of the
pilings from the barge into the water at any time on this project.

After he entered the water and descended the 140 feet to the bottom,
diver Chris Primeau removed the wire cable from the piling and told Dive
Supervisor Donohue that the General Construction crew could activate the
vibratory hammer. (Tr. 293-294). Almost immediately after the hammer was
started, Mr. Primeau repeatedly ordered "all stop" to the surface. (Tr.
40; Ex. 3). The video feed from Mr. Primeau's dive helmet terminated a
few seconds later and the dive team could not get a response from Mr.
Primeau on the telecommunications system. (Tr. 40; Ex. 3). It was later
discovered that the piling had come loose from the grip of the vibratory
hammer and fallen over onto Mr. Primeau. (Tr. 307). Prior to the "all
stop" commands, Mr. Primeau never said or did anything to indicate any
type of problem during the dive. (Tr. 297).

OSHA Compliance Safety and Health Officer Michael Bonkowski conducted
the accident investigation. (Tr. 24). Prior to this investigation, he
had never inspected any commercial diving pile-driving projects, or any
type of worksite using a vibratory hammer to drive pilings. (Tr. 69-72).
His only experience with underwater diving came from recreational scuba
diving 40 years ago and a three-day community college course on scuba
diving 15 years ago. (Tr. 72).

Dale Cavanaugh, OSHA Assistant Regional Administrator, assisted CSHO
Bonkowski with the investigation. (Tr. 133). Prior to this inspection,
he had never investigated a commercial diving accident or an underwater
pile-driving project. (Tr. 192). His only experience with underwater
diving was a two-day "familiarization" course and a certification for
recreational scuba diving. (Tr. 132). ARA Cavanaugh never looked at any
of Respondent's equipment or interviewed any of Respondent's employees.
(Tr. 195). His primary role in the investigation was to observe
post-accident testing of the vibratory hammer and piling involved in the
accident. As a result of those tests, he learned that the maximum
opening for the vibratory hammer jaw was 1.17 inches. (Tr. 142). The
width of the pad-eye connection on the piling, onto which the vibratory
hammer jaws clamped down, was 1.25 inches. (Tr. 142). Therefore, the
vibratory hammer jaw opening was .08 inches too small to fit around the
piling connection. The parties agree that this caused the piling to come
loose from the hammer while Mr. Primeau was in the water. (Tr. 85, 198).

The citation at issue in this case alleges that Respondent failed to
conduct an adequate pre-dive hazard assessment, exposing their divers to
the hazard of falling pilings. (Tr. 60, 64). OSHA acknowledged that
Respondent did assess certain hazards, but omitted any assessment of
hazards associated with diving near crane and pile-driving operations.
(Tr. 63-64). CSHO Bonkowski also maintains that implicit in the
assessment requirement is the "basic duty" to take specific action to
protect employees from the hazards assessed. (Tr. 65). OSHA maintains
that having divers observing the pile-driving process within a few feet
of the piling, with no safety line between the crane and the piling,
proves that Respondent's hazard assessment was deficient. (Tr. 165).
OSHA acknowledged that the cited standard, 29 C.F.R. §1910.421(d)(2), is
a performance-based standard, which affords employers some discretion in
assessing and addressing hazards. (Tr. 506-507).

OSHA points to several other facts in support of its position:

(1) There was a warning sign on the vibratory hammer which stated:
"Danger. Falling piles can cause serious injury or death. Do not use
vibro as a pile lifting device." (Tr. 156, 338, 362; Ex. 12). Although
OSHA placed significant focus on this warning sign during trial, they
described it only as "fairly visible" in their post-trial brief.
(Secretary's Brief, p.25). The Secretary also acknowledges that the
hazard of a falling piling "is not the general type of diving issue that
is common to all diving." (Secretary's Brief, p.27). However, the court
notes that Respondent's divers did not enter the water until the piling
was lifted off the barge and lowered 140 feet into position on the sea
floor. Therefore, any improper lifting and maneuvering of the piling was
done before Respondent's employees began to perform their duties.

(2) General Constructions safety manual identifies the possibility that
pilings can fall. (Tr. 66-67; Ex. 9). OSHA also points to American
Pile-Driving Equipment, Inc.'s Operations Manual which states: "[a]lways
attach safety line to pile when extracting or hoisting into position."
(Ex. 4, p.18). OSHA offered these third-party documents as evidence of
industry practice requiring the use of safety lines between the piling
and the crane. OSHA maintains that Respondent should have addressed and
abated the hazard of falling pilings by either securing a safety line to
the pilings until they were driven deep enough to stand on their own or
by not having divers in the water during the pile-driving. (Tr. 66, 105,
490). However, there was no evidence that Respondent had knowledge of
the contents of General Construction's or American Pile-Driving
Equipment's manuals. Respondent also pointed out that CSHO Bonkowski did
not reference the failure to use a safety line anywhere in his
investigation file. (Tr. 111). Lastly, OSHA ARA Cavanaugh could not
identify any ADCI consensus standard which mandated the use of a safety
line to protect a diver from the possibility of a piling coming loose
from a hammer during a dive. (Tr. 197).

(3) Respondent's own dive manual identifies rigging failure as a
possible hazard and advises personnel to stay clear of suspended loads.
(Tr. 166, Ex. 5). However, the allegation in this case is that
Respondent failed to assess the hazards associated with pilings becoming
detached from vibratory hammers secured to cranes. The referenced
portion of Respondent's dive manual was prepared specifically for this
job and is entitled "Activity Hazard Analysis." (Ex. 5, p. 130). This
seems to support the proposition that hazards associated with equipment
lifted and positioned by crane were in fact assessed before the dive. In
addition, CSHO Bonkowski acknowledged that there is no OSHA regulation
which specifically prohibits a diver from standing next to a piling
while it is being driven underwater. (Tr. 112). However, he believes
1910.421(d)(2) can be interpreted as prohibiting such a practice. (Tr.
118).

(4) OSHA alleged that Respondent observed General Construction employees
having trouble securing the hammer to the pad-eye on the piling. (Tr.
59). CSHO Bonkowski testified that they had to "beat it on every time,"
indicating that something was obviously wrong with connection between
the hammer and the piling. (Tr. 59). However, the Secretary presented no
evidence establishing that Respondent's employees were aware of any such
"beating" of the hammer onto the piling. In fact, based on this record,
the court finds there was no basis upon which Respondent should have
suspected that General Construction would use a vibratory hammer that
was .08 inches too small for the pad-eye connection on the piling. (Tr.
278, 314).

Although OSHA recognizes that ADCI consensus standards represent the
best practices for commercial diving operations, CSHO Bonkowski did not
reference them prior to issuing the citation items in this case. (Tr.
81-82). CSHO Bonkowski also acknowledges that a dive plan, including the
hazard assessment, does not have to be written to comply with OSHA
regulations. (Tr. 82). Finally, CSHO Bonkowski testified that OSHA's
commercial diving regulations do not specifically impose a duty on
commercial diving employers to inspect the equipment of other
contractors on a site. (Tr. 99). OSHA conceded that Respondent did not
have a duty to inspect General Construction's crane equipment unless
Respondent saw something "that looked hazardous." (Tr. 205).

Each party offered expert testimony in support of their respective
positions. Complainant's expert, Stephen Butler, and Respondent's
expert, Jon Hazelbaker, were both accepted as experts on the subject of
best practices in commercial diving operations. Mr. Hazelbaker has been
engaged in commercial diving, both as a commercial diver and consultant,
for 41 years. (Tr. 410-416). He actually served on the ADCI Board of
Directors in the 1990's and still performs consultative work for the
organization. (Tr. 419). He is the only testifying expert witness with
personal commercial diving experience involving underwater pile-driving
with a vibratory hammer. (Tr. 417). As a result, the court gives greater
weight to Mr. Hazelbaker's testimony on best practices for this
particular kind of project.

Mr. Hazelbaker testified that, after reviewing the pre-dive actions of
Respondent in this case, he believes Respondent complied with
professional diving standards and §1910.421(d)(2). (Tr. 422). He also
testified that in his forty years of commercial diving experience, he
has never seen or heard (other than the present case) of a vibratory
hammer failing and releasing a piling from its grip, or of a safety line
being attached from a piling to a hammer while it was being driven
underwater. (Tr. 426, 433). He further testified that if he was
performing this dive himself, he would have been positioned in the same
location as the deceased diver. (Tr. 428). Even Stephen Butler, who is
Director of Maritime Enforcement for OSHA, testified that a diver could
be positioned next to the piling while it was being driven once it was
partially imbedded in the sea floor. (Tr. 467-468, 490).

The court notes that actual pile-driving process is relatively slow. As
depicted in video footage, it takes approximately six minutes to drive a
22-foot piling into the sea floor with a vibratory hammer. (Ex. 7). With
regard to the sign warning against using the hammer as a lifting device,
Mr. Butler testified that all Respondent should have done with regard to
this issue was "do a little research, find out a little bit more about
it, and then discuss it, you know, with the controlling employer in this
case, General Construction, until they get a satisfactory answer
relative to that particular piece of equipment." (Tr. 492). Mr. Butler
also testified, with regard to Respondent's own procedures and
equipment, that he found no problems: "...quite honestly, I haven't
found any major disagreements with that part of just running the dive. I
think the company has done an incredible thing. I have said so before in
the deposition. I think their safe practices manual, what they have, is
adequate." (Tr. 488). Mr. Butler maintained that Respondent had not done
enough to address the hazards presented by the equipment of the other
subcontractor on site: General Construction. (Tr. 488-489).

The Secretary maintains that the violation was properly characterized as
serious because a falling piling could, and did in this case, result in
serious physical harm or death. (Tr. 67).

*Discussion*

To establish a /prima facie/ violation of the Act, the Secretary must
prove: (1) the standard applies to the cited condition; (2) the terms of
the standard were violated; (3) one or more of the employees had access
to the cited condition; and (4) the employer knew, or with the exercise
of reasonable diligence could have known, of the violative condition.
/Ormet Corporation/, 14 BNA OSHC 2134, 1991 CCH OSHD ¶29,254 (No.
85-0531, 1991).

*Citation 1 Item 1*

**The Secretary alleged in Citation 1 Item 1 that:

/29 C.F.R. §1910.421(d)(2): Planning of a diving operation did not
include an assessment of the safety and health aspects of surface and
underwater conditions: (a) At Cherry Point the dive plan did not address
hazards resulting from surface and underwater conditions for dives
greater than 100 fsw and working around a suspended vibratory hammer
clamped to a piling. /

The cited standard provides:

/29 C.F.R. §1910.421(d) Planning and assessment. Planning of a diving
operation shall include an assessment of the safety and health aspects
of the following:/

/...(2) Surface and underwater conditions and hazards;/	//

Respondent concedes that the cited standard applies. (Respondent's
Brief, p. 24). With regard to whether the terms of the standard were
violated, the Secretary does not dispute that Respondent conducted a
hazard assessment. Rather, she argues that Respondent's hazard
assessment was unreasonably deficient in that it did not consider the
possibility of falling pilings.

It is undisputed that the cited standard is a performance standard,
which differs from a specific standard in that employers are afforded
broader discretion by OSHA to identify hazards which are peculiar to
their own workplace and determine the steps necessary to abate them.
/Secretary's Brief/, p. 52; /OSHRC v. Thomas Industrial Coatings, Inc/.,
21 BNA OSHC 2283, 2008 CCH OSHD ¶32,937 (No. 97-1073, 2007). Since
performance standards do not identify specific obligations, compliance
is evaluated on the basis of reasonableness. /Id/. Broadly worded
standards, such as the one here, typically require a showing that a
reasonable person familiar with the situation would recognize a
hazardous condition which should have been addressed. /Farrens Tree
Surgeons, Inc/., 15 BNA OSHC 1793, 1992 CCH OSHD ¶29,770 (No. 90-998,
1992). "If the language of the regulation is not specific enough,
however, other sources may provide constructive notice: industry custom
and practice; the injury rate for that particular type of [ ] work; the
obviousness of the hazard; and the interpretations of the regulation by
the Commission." /Corbesco, Inc/., 926 F.2d 422 (5th Cir. 1991).

There was significant testimony and evidence presented at trial
concerning the events during actual dives and the unfortunate fatality
accident. However, this court finds that such information is only
minimally relevant to the issue at hand: What steps did Respondent take
*/before/*// their divers entered the water to assess anticipated hazards?

"Commercial diving involves exposure to a high degree of risk. The
diver's work environment is inherently dangerous." 42 F.R. 37,651.
Therefore, it is imperative that commercial diving employers implement
precise and comprehensive procedures to protect their divers from
recognized hazards. In this instance, the record clearly reveals
significant and repeated steps taken by Respondent, both verbally and in
writing, to address hazards they anticipated on this project. Respondent
participated in a large pre-dive safety meeting involving all
subcontractors, conducted daily meetings covering step-by-step
procedures and hazards anticipated in each dive, and included a written
hazard analysis in their dive plan which addressed working near
suspended loads and cranes.

The third party procedure manuals of General Construction and American
Pile-Driving Equipment, Inc., which discuss the hazard of falling
pilings, do not specifically apply to underwater pile-driving. They also
address the hazard of falling pilings while the pilings are being
maneuvered into position. Since Respondent's divers did not enter the
water until the pilings were positioned one foot off the sea floor, any
improper lifting or moving of pilings occurred before the divers' work
began.

Additionally, the court finds that the Secretary failed to establish
that other commercial diving employers would have conducted their
pre-dive hazard assessment any differently than Respondent in this
situation. Alleged violations of broadly worded standards can be vacated
when the Secretary fails to establish that an employer failed to comport
with industry practice. /Brooks Well Servicing/, 20 BNA OSHC 1286, 2002
CCH OSHD ¶32,675 (No. 99-0849, 2003). The court finds, based on this
record, that it was unforeseeable by Respondent that after four previous
successful dives monitoring this sea floor pile-driving process, that
General Construction would then use a vibratory hammer with a piling
connection /eight-one-hundredths-of-an-inch/ too small to fit onto the
piling, causing it to come loose in the water.

The Secretary failed to establish, by a preponderance of the evidence,
that Respondent's pre-dive hazard assessment as required by 29 C.F.R.
§1910.421(d)(2), was inadequate.

*Affirmative Defenses*

Since the Secretary failed to establish a /prima facie/ violation of the
Act, Respondent's affirmative defenses will not be addressed.



*ORDER*

Based upon the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that Citation 1 Item 1 is VACATED.

/s/

SIDNEY J. GOLDSTEIN

Judge, OSHRC



Date: December 4, 2009

Denver, Colorado

1. Judge Goldstein has since retired from the Commission and is
currently serving as a senior judge on a limited appointment.

2. GC had initially planned to drive the pilings using an "impact
hammer," which would drive each piling into the ocean floor through
repeated downward blows, but changed to the vibratory hammer before work
on the project began.

3. AUS had developed a written dive plan before the project started but
does not dispute that the written plan was not used on the day of the
accident.

4. We note that the judge's error lies in part on his incorrect factual
finding that GC drove the four previous pilings with an impact hammer
and then switched to a vibratory hammer for the fatal dive. The record,
however, establishes that GC had used only a vibratory hammer to drive
pilings at the site.

5. AUS seeks to discredit testimony from the Secretary's witnesses about
the construction-related hazards of pile-driving. It claims that their
testimony is irrelevant because two of the witnesses lacked specific
expertise in commercial diving and the third witness lacked experience
with vibratory hammers. Based on our finding that GC's pile-driving
operation was a construction activity, we view the witnesses' testimony
as relevant to our inquiry.

6. Similarly, the operating manual of another manufacturer of vibratory
hammers, introduced into evidence at the hearing, states, "Do not stand
any closer to this equipment than necessary when it is in operation.
Parts may loosen and fall. Piling may shatter or break. Always attach a
safety line to the pile when extracting or hoisting into position."

7. We also note that AUS could have obtained information about the
hazard of a falling piling by speaking with individuals familiar with
pile-driving, such as the crew performing that work for GC. In fact, it
had an opportunity--which it did not take--to question GC's
superintendent about possible risks when he told AUS's dive supervisor
before the fatal dive that a wire cable must be attached to the piling
because GC's parent company was concerned with "losing the pile." In
addition, three witnesses, one of whom was qualified as an expert, with
extensive construction experience and knowledge of hydraulic systems
testified for the Secretary at the hearing, and their testimony reflects
that (1) working near suspended pilings is inherently dangerous, (2)
OSHA requires protections from falling pilings during pile-driving, 29
C.F.R. § 1926.603(c)(2)--a requirement consistent with industry
consensus standards, and (3) a failure of the vibratory hammer's
hydraulic system could cause a piling to fall.