“SECRETARY OF LABOR,Complainant,v.PASCHEN CONTRACTORS, INC.,Respondent.OSHRC Docket No. 84-1285_DECISION_Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Paschen Contractors, Inc., contracted with the Florida Department ofTransportation to build the Sunshine Skyway Bridge across Tampa Bay fromSt. Petersburg to Bradenton. To accomplish this task, Paschen had anengineering firm design a device to lift prestressed concrete slabsweighing over 200 tons. Paschen built the device, but the first time thelifting device was used it collapsed, injuring four employees. TheOccupational Safety and Health Administration of the Department of Labor(\”OSHA\”) investigated the incident and cited Paschen for a willfulviolation of the standard at 29 C.F.R. ? 1926.550(d)(4).[[1\/]]Paschen was charged with willfully failing to load test the device,which the Secretary alleged to be a modified gantry crane, in violationof the requirements set out in the American National Standards Institute(\”ANSI\”) standard incorporated by reference into 29 C.F.R. ?1926.550(d)(4). Paschen contested the citation, and a hearing was heldby an administrative law judge of this Commission.At the hearing, the primary issue tried by the parties was whether thedevice was a \”gantry crane\” and therefore subject to the requirements ofthe cited standard. Although the judge did not agree with the Secretarythat the device was a gantry crane, he nevertheless concluded thatPaschen’s machine was governed by the cited standard because, under thescope provision of the ANSI standard, devices are covered if they have\”the same fundamental characteristics\” as a gantry crane.[[2\/]] In thejudge’s opinion, Paschen’s machine met this test for coverage under theANSI and OSHA standards. The judge also found that Paschen had committeda willful violation of the cited standard, and he therefore affirmed thecitation. The case was directed for review and is before the ReviewCommission pursuant to section 12 (j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 661(j).In order to establish a violation, the first element of the Secretary’sburden of proof is to show that the cited standard applies to the citedworking conditions. _Dun-Par Engineered Form Co.,_ 12 BNA OSHC 1962,1986 CCH OSHD ? 27,651 (No. 82-928, 1986). The citation alleged that thedevice was a gantry crane. For the reasons set forth below, we find thatPaschen’s machine is not a gantry crane as defined by the standard andwe conclude that 29 C.F.R. ? 1926.550(d)(4) the standard cited, does notapply. We therefore reverse the judge’s decision and vacate the citation.The largest single component of Paschen’s lifting device was a steelframework, a \”gantry,\” approximately 15 feet high, 13 feet wide, andover 300 feet long, which sat on the concrete piers that later would bethe permanent supports of the bridge. The piers were approximately 140feet apart, so that the gantry was supported approximately in the middleand near each end. After it had been lifted onto the piers by awater-borne crane, the \”gantry\” could be moved into position on the nextpier, as sections of the bridge were completed.On the top of the \”gantry\” were rails along which a trolley could bemoved. Mounted on the trolley were two lifting devices, one on eachside. Although the trolley could be moved into position over a loadbefore it made a lift, it would not move while the load was suspended.Once a concrete segment was raised to the appropriate height, cableswould be attached to the bottom edge and the segment would be liftedinto position rather than transported horizontally by moving the trolley.The OSHA standard under which Paschen was cited does not define either\”crane\” or \”gantry crane.\” It does, however, incorporate by referenceANSI B30.2.0-1967, which does define those terms. Section 2-0.2.1.1defines the term \”crane:\”A machine for lifting and lowering a load and moving it horizontally,with the hoisting mechanism an integral part of the machine. Craneswhether fixed or mobile are driven manually or by power.The term \”gantry crane\” is defined in section 2-0.2.1.6:A crane similar to an overhead crane except that the bridge for carryingthe trolley or trolleys is rigidly supported on two or more legs runningon fixed rails or other runway.That definition is complemented by section 2-0.2.1.8, which sets out thedefinition of an \”overhead crane:\”A crane with a movable bridge carrying a movable or fixed hoistingmechanism and traveling on an overhead fixed runway structure.Based on our review of the record and the ANSI standard, we concludethat Paschen’s machine does not fit within the definitions in ANSIB30.2.0-1967.Because those definitions give us very little guidance concerning thecharacteristics of cranes generally and gantry cranes in particular, weview the information that is provided by the ANSI committee as beingparticularly important. We are therefore unwilling to treat any part ofthe ANSI definitions lightly. In particular, we place significance onthe language in the definitions that specifies that the legs of a gantrycrane travel along rails and that a crane is a machine \”for moving aload horizontally\”.The first question before us is whether Paschen’s machine was a \”gantrycrane,\” as the Secretary alleged. Under the ANSI definition, it is theability of the bridge to travel because its supporting legs are mountedon rails, not the presence of a bridge or \”gantry,\” that makes a crane agantry crane. Paschen’s device did not have legs mounted on rails.Instead, the bridge of the machine remained stationary on the permanentconcrete piers.Our conclusion that Paschen’s machine does not fall within thedefinition of \”gantry crane\” is reinforced by the illustrations in ANSIB30.2 depicting the types of cranes covered by the standard and showingthe directions they can travel. As stated in the ANSI scope provision,_supra_ at note 2, all of the cranes depicted in these illustrations are\”grouped\” together because they all have \”similar travelcharacteristics.\” Specifically, the illustrations reveal that each ofthe cranes depicted has the same three lines of travel: the load can beraised and lowered; it can be transported horizontally as the liftingmechanism travels back and forth across the bridge; and the bridgeitself can move along rails in a direction perpendicular to the path ofthe trolley. By contrast, Paschen’s machine was able only to lift aload; its trolley was not designed to move in any direction while themachine was supporting a load. Paschen’s machine therefore had only oneof the three paths of travel characteristic of the cranes covered by theANSI standard, although the trolley was capable of moving across thebridge when the crane was not supporting a load. Based on the wording ofthe definition and the illustrations, we conclude that Paschen’s machineis clearly not a gantry crane, because it lacks the ability to travel onrails in a direction perpendicular to the gantry.Reading the ANSI definitions, we question whether the cited machine wasa crane at all. It appears from ANSI’s definition of the term \”crane\”that the primary function of a crane is to transport a load horizontallyand that the ability to lift may merely be a necessary incident to thatfunction. In contrast, Paschen’s machine was not intended to transport aload; it was designed merely to lift its load to a height where it couldbe moved into place by other means. It therefore was not a machine \”formoving [its load] horizontally\” within the ANSI definition.For these reasons, we disagree with the administrative law judge’sconclusion that Paschen’s machine was governed by the crane standardbecause it has the \”same fundamental characteristics\” as the cranesgoverned by the standard. The judge misread the scope provision of ANSIB30.2, which says that the standard applies to \”overhead and gantrycranes, including semi-gantry, cantilever gantry, wall cranes, storagebridge cranes, and others having the same fundamental characteristics\”.We read that provision to say that the standard applies to those cranesspecifically mentioned and to other cranes having the same fundamentalcharacteristics. Our conclusion that the judge and the Secretary haveerroneously interpreted this provision is further supported by thesentence that follows it: \”These cranes are grouped because they allhave trolleys and similar travel characteristics.\” That sentence makesclear that the emphasis of the scope provision is on the travelcharacteristics of the machine, characteristics which Paschen’s devicedoes not share. The ability of a gantry structure to travel along railsmust be one of the most fundamental characteristics of an overhead craneor a gantry crane, since it is the only characteristic mentioned in thedefinitions. Contrary to the Secretary’s arguments, the language of theANSI scope provision reinforces our view that the cited standard doesnot apply. Paschen’s machine is not a crane, and it does not have thesame characteristics as the cranes described in the standard. Ittherefore cannot be brought within the purview of the standard by thescope provision.Because we find that Paschen’s machine was not designed \”for moving aload horizontally,\” we conclude that it is not a crane at all. Althoughit is not necessary that we determine what the machine is in order todecide this case, we note that Paschen’s expert witness opined that themachine was an \”overhead hoist,\” and Paschen has maintained thatposition throughout the course of this litigation. OSHA has a standardgoverning overhead hoists, which is published at 29 C.F.R. ? 1926.554.One of the provisions of that standard, subsection (a)(3), mandates thatthe hoist’s supporting structure must not impede free movement of thehoist and must not restrict the hoist from lining itself up with theload. This indicates that an overhead hoist has at least limited abilityto travel horizontally, as did Paschen’s device. The ANSI standardgoverning overhead hoists, ANSI B30.16-1973, indicates that the hoistmechanism may be mounted on a trolley that travels on overhead beams._See_ ? 16-0.2.31. This information almost exactly describes Paschen’sdevice. We therefore conclude that the cited machine most closelyresembles an overhead hoist governed by ANSI B30.16. Consequently, theapplicable OSHA standard appears to be 29 C.F.R. ?1926.554, and theSecretary probably should have cited Paschen under that standard if anyof its provisions were violated.[[3\/]]It is easy to see how the OSHA compliance personnel in this casemistakenly characterized Paschen’s device as a gantry crane. Even theengineers who designed the device called it a \”launching gantry,\” and anumber of Paschen’s own employees referred to it as a \”crane.\” Thisconfusion underscores the difficulties an employer unfamiliar with thestandards may experience in trying to determine the requirements withwhich it must comply.It is precisely because of uncertainties like this that the Commissionhas in the past encouraged pleading in the alternative when there is aquestion or controversy over which standard governs the citedconditions. _E.g._, _McWilliams Forge Co.,_ 11 BNA OSHC 2128, 2131, 1984CCH OSHD ? 26,979, p. 34,671 (No. 80-5868, 1984). We take thisopportunity to repeat that recommendation.In conclusion, because the standard cited does not apply to Paschen’smachine, we reverse the decision of the administrative law judge andvacate the citation.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: _August 29, 1990_————————————————————————SECRETARY OF LABOR,CompIainant,v.PASCHEN CONTRACTORS, INC.,Respondent.OSHRC Docket No. 84-1285APPEARANCES:Curtis L. Gaye, Esquire, Office of the Solicitor, U. S. Department ofLabor, Atlanta, Georgia, on behalf of complainant.Davisson F. Dunlap, Esquire, George Barford, Esquire, and James R.Wiley, Esquire, Cariton, Fields, Ward, Emmanuel, Smith and Cutler, P.A.,Tampa, Florida, on behalf of respondent._DECISION AND ORDER_BRADY, Judge: This proceeding is brought pursuant to section 10 ofthe Occupational Safety and Health Act of 1970 (Act) to contest acitation issued by the Secretary of Labor (Secretary) pursuant tosection 9(a) of the Act.The underlying facts in this case are not in dispute. PaschenContractors, Inc., (Paschen), contracted to build spans on the SunshineSkyway Bridge, a structure of approximately four miles which connectsSt. Petersburg and Bradenton, Florida. A portion of the bridge was to beconstructed with pre-cast roadway segments being placed alternately oneither side of a pier until a span between two piers is closed. Themachine used by respondent to lift the roadway segments into place isthe subject of the dispute in this proceeding. Variously referred to inthe record as a crane, a gantry, gantry crane and launching gantry, itwas over 300 feet long and rested on supports at three piers. On July30, 1984, certain portions of the machine collapsed while attempting tolift a roadway segment to the top of pier five north injuring fouremployees. An investigation by the Occupational Safety and HealthAdministration (OSHA) resulted in issuance of the citation.Respondent is charged with violating the regulation at 29 C.F.R. ?1926.550(d)(4) which provides as follows:(4) All overhead and gantry cranes in us shall meet the applicablerequirements for design, construction, installation, testing,maintenance, inspection, and operation as prescribed in the ANSI B30.2.0- 1967, Safety Code for Overhead and Gantry Cranes.Section 2-1.3.5 of the American National Standards Institute (ANSI)B30.2.0-1967 states:Cranes may be modified and rerated provided such modifications and thesupporting structure are checked thoroughly for the new rated load by aqualified engineer or the equipment manufacturer. The crane shall betested in accordance with Paragraph 2-2.2.2. New rated load shall bedisplayed in accordance with Paragraph 2-1.1.1.Section 2-2.2.2 in turn provides that:Prior to initial use all new, extensively repaired, and altered cranesshould be tested by or under the direction of an appointed or authorizedperson and a written report furnished by such person, confirming theload rating of the crane. The load rating should not be more than 80percent of the maximum load sustained during the test. Test loads shallnot be more than 125 percent of the rated load unless otherwiserecommended by the manufacturer. The reports shall be placed on filewhere readily available to appointed personnel.The alleged violation is described in the citation as follows:(a) On or about 7\/30\/84, the Gantry Crane, located atop piers 7n, 6n,and 5n of the new Sunshine Skyway Bridge, had not been thoroughlychecked as to the field modifications that differed from the Certifieddetail drawings that had been provided by the design engineers. Inaddition, the crane had not been load tested prior to operational use inaccordance with the provisions of Paragraph 2-2.2.2.The Commission has held that in order to establish a violation undersection 5(a)(2) of the Act as alleged, it is necessary for the Secretaryto show by a preponderance of the evidence that (1) the cited standardapplies; (2) there was a failure to comply with the standard; (3)employees had access to the violative condition; and (4) the citedemployer either knew or could have known of the condition with theexercise of reasonable diligence. _Astra Pharmaceutical Products, Inc.,_82 OSAHRC 55\/E9, 9 BNA OSHC 2126, 1982 CCH OSHD ? 26,251 (No. 78-6247,1985); _Daniel International Corp., _81 OSAHRC 71\/D6, 9 BNA OSHC 2027,1977-78 CCH OSHD ? 21,679 (No. 76-181, 1977).A primary issue in this case relates to the applicability of thestandard. The Secretary maintains that the machine used by respondentwas a crane subject to the Overhead and Gantry Crane Standards. Thiscontention is based primarily on the scope of the ANSI standard atB30.2.0-1967. The general scope of the standard set forth at 2- 01states it \”applies to overhead and gantry cranes, including semi-gantry,cantilever gantry, wall cranes, storage bridge cranes and others havingthe same fundamental characteristics. These cranes are grouped becausethey all have trolleys and similar travel characteristics.\” It isalleged, therefore, that the machine in question is a crane subject tothe standard in that it has the fundamental characteristics of overheadand gantry cranes, including a bridge that moves, which in turn supportsa movable hoisting mechanism capable of lifting a load and moving ithorizontally. In addition, the machine, supported at piers 5n, 6n, and7n, was capable of moving itself from pier to pier (Joint Ex. 6).Respondent points out that section 1926.550(d)(4) does not define agantry crane but only references the ANSI standard in that regard. It,therefore, adopts a position based on the Commission’s reasoning in_Lisbon Contractors, Inc.,_ _ OSAHRC __,11 BNA OSHC 1971, 1972-73, 1981CCH OSHD ? 25,222 (No. 80-97, 1984). In that case, the Commission wasfaced with a situation where a backhoe was used to perform the functionof a crane in lifting a trench box and lowering it into a trench. TheCommission overruled several prior decisions which upheld the functionalargument based on a machine’s use, and stated that the crane standards\”were tailored instead to particular configurations and mechanisms ofcranes and derricks rather than to the machine’s functions.\”Accordingly, it found the backhoe was not a crane, because it did nothave a \”boom\” within the meaning of the ANSI standard. Respondent,therefore, asserts that its machine did not have the configuration andmechanism of a gantry crane as defined in section 2-0.2.1.6 which states:A crane similar to an overhead crane except that the bridge for carryingthe trolley or trolleys is rigidly supported on two or more legs runningon fixed rails or other runway.In addition, reference is made to the scope clause of ANSI B30.2 whichindicates the cranes \”… all have trolleys and similar travelcharacteristics.\” Thus, it is argued that although the hoist mechanismwas mounted on a trolley and capable of horizontal travel on a truss,the truss was incapable of perpendicular movement. In support of itsposition, respondent points out that the examples depicted under \”Typesof Cranes\” in joint exhibit 10 all have three directions of movement:(1) vertical lift by a hoisting mechanism;(2) horizontal travel by a trolley along a bridge; and(3) transverse travel of the entire structure perpendicular to thebridge and the travel of the trolley along the bridge.Essentially respondent maintains that all B30.2 cranes are capable ofthree directions of movement while supporting a load and there isnothing to indicate cranes covered by the standard can move in only oneor two directions at a time.In determining the applicability of the standard, it must first be shownthat respondent’s machine is a crane. A crane is defined in section2-0.2.1.1 of ANSI B30.2 in pertinent part as follows:A machine for lifting and lowering a load and moving it horizontally,with the hoisting mechanism an integral part of the machine . . . .The record discloses that respondent’s expert witness questioned whetherthe machine was a crane because he did not believe the hoistingmechanism was an \”integral part of the machine\” (Tr. 467). Complainant’sargument is adopted for the purpose of determining this issue. It ispointed out that \”in_Webster’s New World Dictionary of the AmericanLanguage,_ (2d ed. D. Guralnik 1972), ‘integral’ is defined as necessaryfor completeness; essential. The launching gantry was erected for thepurpose of lifting bridge segments and setting them into position. Thehoisting mechanism is absolutely necessary to perform this function anda launching gantry would be incomplete without it.\”The question which now must be decided is whether respondent’s machine,meeting the definition of a crane, is an overhead or gantry crane withinthe meaning of section 1926.550(d)(4). It is concluded from the evidenceof record, Commission precedent and the scope provisions of ANSI B30.2that the standard does apply in this case.Since a definition for overhead and gantry cranes is not found in thestandard, clarification is sought in the scope provision of ANSI B30.2.Section 2-0.1 identifies certain types of overhead and gantry craneswhich are included and then states that B30.2 also applies to \”othershaving the same fundamental characteristics.\” Without setting forth whatspecific features or attributes such cranes must possess, the draftersobviously intended the standard’s application to those cranes withvarying but basic characteristics. The machine in question has beenshown to possess the \”fundamental characteristics\” of the identifiedoverhead and gantry cranes. These characteristics include a movablebridge carrying a movable hoisting mechanism and possessing thecapability of moving itself from pier to pier. The fact that it couldnot move perpendicular to the horizontal travel while mounted on a fixedrunway, or perform three moving functions at the same time is not deemeddispositive in light of the machine’s basic components and its liftingcapacity.Mr. Robert De Benedictis, the Secretary’s expert, testified that \”it isvery, very, very, very seldom and in fact practically never that youperform more than one function at a time\” when making heavy lifts with agantry crane (Tr. 245). Respondent’s expert, Mr. Matthew Burkhart,agreed in stating \”it is not usually advisable to perform more than onefunction at a time.\” He also agreed that the operational characteristicsof the machine as to load lifting and potential hazards are the same asfor a typical gantry crane (Tr. 488-490).The Commission, as seen in _Lisbon Contractors,_ _supra,_ and the casesdiscussed therein, has dealt with the question of applying the cranestandards to various machines performing lifting functions. Those caseswere concerned with machines performing lifting functions, whether theywere designed for that function or not. The machine in the instant case,however, was designed and used exclusively for the purpose of liftingfor a specific job and was even characterized by respondent on severaloccasions as a gantry crane (Joint Ex. 6; Tr. 84). For the purpose ofthis decision, it is also pertinent to note that the Commission indiscussing the standard at 29 C.F.R. ? 1926.550, captioned \”Cranes andDerricks\” stated:Given the purpose of the Act, any ambiguity in the standard should beresolved in favor of eliminating the hazard to which the standard isaddressed …………. Respondent’s argument would lead to the incongruous result thatmachinery designed and manufactured specifically to perform a givenfunction should be held to more stringent requirements than shop builtequipment improvised to perform the same function …………we believe that this interpretation affords employees thegreatest protection from the dangers of improvised equipment that may beinadequate for the task to which it is put. _Gil Haugan,_ 79 OSAHRC107\/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ? 24,105 (Nos. 76-1512 & 76-1513,1979).[[*\/]]Clearly, from the evidence respondent’s crane does not fit the precisedefinition of an overhead or gantry crane. But in light of the scopeprovision of B30.2 and consistent with the interpretation placed on1926.550 by the Commission, the standard applies in this case.Complainant having shown that the cited standard applies, the questionof whether respondent failed to comply must now be resolved. The recordis clear that no load tests were made as described in section 2-2.2.2 ofANSI standard B30.2 (Tr. 123). Respondent, however, maintains that thesection is only advisory and cannot of itself provide the basis for acitation, and it was justified in relying on the consultants whodesigned the machine to ensure its capability for lifting thepredetermined load. Also, it had met the requirements of section 2-1.3.3in that all modifications to the crane were checked thoroughly by theproperly designated persons.There is no dispute that extensive modifications had been made to thecrane in question (Tr. 119, 156, 157, 208, 297). Since it was previouslyused in the construction of a similar bridge to lift roadway segmentsweighing approximately 65 to 70 tons, the modifications were necessaryto enable it to lift the 220-ton segments at the Skyway Bridge.While section 2-1.3.5 recognizes that cranes may be modified, it alsomakes it mandatory that such cranes are to be tested and the new ratedload must be displayed. Complainant accurately points out that referenceto paragraph 2-2.2.2 only describes the manner in which such loadtesting is to be conducted but in no way negates the mandatoryrequirements for testing under 2-1-3.5. The standard was, therefore,violated as alleged in the citation.The Secretary has classified respondent’s failure to load test themodified crane as a willful violation. The Commission has interpretedthe term \”willful\” in_Asbestos Textile Co.,_ ____ OSAHRC,_____, 12 BNAOSHC 1062, 1984 CCH OSHD ? 26,101 (No. 79-3831, October 31, 1984), asfollows:To establish that a violation was willful, the Secretary must show thatit was committed with intentional, knowing or voluntary disregard forthe requirements of the Act or with plain indifference to employeesafety. e._See,e.g._ _D. A. & L. Caruso, Inc.,_ 84 OSAHRC_____,11 BNAOSHC 2138, 2142, 1984 CCH OSHD ? 26,985, p. 34,694 (No. 79-5676,1984);_Duquesne Light Co.,_ 84 OSAHRC____,11 BNA OSHC 2033, 2040, 1984CCH OSHD ? 26,959, p. 34,603 (No. 79-1692, 1984), _pets. for rev.filed,_ Nos. 84-3520 & 84-3538 (3d Cir. Aug. 20 & 28, 1984). It is notenough for the Secretary simply to show carelessness or a lack ofdiligence in discovering or eliminating a violation; nor is a willfulcharge justified if an employer has made a good faith effort to complywith a standard or eliminate a hazard even though the employer’s effortsare not entirely effective or complete. _Marmon Group, Inc.,_ 84OSAHRC,____,11 BNA OSHC 2090, 1984 CCH OSHD ? 26,975 (No.79-5363,1984),_pet. for rev. filed,_ No. 84-2193 (8th Cir. Sept. 17,1984), _citing Mobile Oil Corp.,_ 83 OSAHRC____,11 BNA OSHC 1700, 1983CCH OSHD ? 26,699 (No. 79-4802, 1983).Application of the Commission’s interpretation to the instant casewarrants the conclusion that respondent’s decision not to load test thecrane was \”willful.\”The record is clear that respondent had actual knowledge of itsobligation under the Act, because it was bound by contract to complywith Federal Safety and Health Standards (Ex. C-3. Tr. 352, 353, 441).The evidence also shows that respondent was aware of its responsibilityto perform load testing as required by the standard.On June 20, 1984, a meeting was held between Paschen, representatives oftwo engineering consultant firms, and the Florida Department ofTransportation. As a result of the discussion, several points wereresolved, one of which was that (Joint Ex. 13):9. Prior to attempting lifting any precast Superstructure Segments,Paschen Contractors have a comprehensive testing schedule to check outall lifting and jacking equipment.A representative of the engineering firm that designed the bridge andwho attended the meeting, testified that, in his opinion, testing inthis context would involve load testing (Tr. 217, 221). It is clear fromthe record that respondent made a conscious decision not to conduct thetesting referred to in the letter, designated joint exhibit 13. In aletter dated July 10, 1984, Mr. William Roach, Project Manager,responded by stating, \”…We do not anticipate any comprehensive testingschedule before actual erection …\” (Joint Ex. 14). Although Mr. Roachdid not testify, his letter indicates that testing of the equipmentwould be performed prior to lifting. The facts show, however, thatobviously no \”comprehensive testing schedule,\” or load testing wasintended to check out the equipment.Mr. Andrew King, Assistant Project Engineer, testified that the need toconduct a load test prior to July 30, 1984, had been discussed. He didnot recall, however, details of the discussions and who was present (Tr.171-172) Mr. King did not know if the load rating of the gantry cranehad been determined but did stencil \”150 Tons\” on the load blocks of themovable crane. He stated the 150 tons had nothing to do with the lift inquestion, but \”I got those numbers from the maximum lift that thoseblocks would see due to another mode of erection\” (Tr. 162-165). Mr.Howard Kronis, Gantry Foreman, testified that he discussed load testingwith his superiors and made some suggestions in that regard. He stated,\”At first, it met with favorable response but it never actually cameoff\” (Tr. 207, 209).In addition to respondent’s knowledge of its responsibility, the recorddiscloses actual knowledge of the hazard created by noncompliance. Thereis no dispute that in the course of making the initial lift of a roadwaysegment on July 30, 1984, employee concerns caused it to be put down(Tr. 175). It was determined that part of the support structure of thegantry began to give way (Tr. 200). Mr. King decided to install twoadditional tie-downs without further corrective action (Tr. 177). Duringthe second attempted lift \”everything broke loose\” according to Mr.Kronis, and several employees were injured as a result of the crane’scollapse (Joint Ex. 2; Tr. 203-207).The decision to proceed with the second lift with full knowledge of thehazard created by the failure to load test is deemed a voluntarydisregard for the requirements of the Act and employee safety.The next question for determination concerns the amount of penalty to beassessed for the violation. Under section 17(j) of the Act, theCommission is required to find and give \”due consideration\” to the sizeof the employer’s business, the gravity of the violation, the good faithof the employer, and the history of previous violations in determiningthe assessment of an appropriate penalty. The gravity of the offense isthe principal factor to be considered. _Nacirema Operating Co., _72OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The Commission stated in _Secretary v. National Realty and ConstructionCo.,_ 72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No.85, 1971), that the elements to be considered in determining the gravityare: (1) the number of employees exposed to the risk of injury; (2) theduration of exposure; (3) the precautions taken against injury, if any;and (3) the degree of probability of occurrence of injury.Weighing all the foregoing factors in light of the circumstances, it isconcluded that a penalty in the amount of $2,500.00 is deemed appropriate._FINDINGS OF FACT_1. Paschen Contractors, Inc., at all times hereinafter mentioned, was acontractor engaged in construction of the Sunshine Skyway Bridgeconnecting St. Petersburg and Bradenton, Florida.2. Commencing July 31, 1984, authorized representatives of the Secretaryconducted an inspection of the aforesaid work site resulting in issuanceof the citation.3. A portion of the bridge was to be constructed with the placement ofpre-cast roadway segments alternately on either side of a pier until aspan between two piers was closed.4. On July 30, 1984, the crane collapsed while lifting a 220-ton segmentto the top of pier five north. Four employees were injured.5. The crane, with a movable bridge; movable hoist mechanism; andcapable of moving itself; possessed the fundamental characteristics ofoverhead and gantry cranes.6. The Commission has applied the crane standards to various machineswhich perform lifting functions whether they were designed for thatpurpose or not.7. The crane had been used in the construction of another bridge butlifted roadway segments weighing only 65 to 70 tons. It, therefore, hadundergone extensive modification prior to use in this case.8. Following modification, the crane and supporting structure were notchecked for the new rated load. It also had not been load tested priorto operational use.9. Through meetings, discussions and correspondence, respondent’sofficials were fully aware of the need to check the modified crane andsupporting structure. This included the need for load testing prior tooperational use of the crane.10. After the crane’s first pickup of a roadway segment on July 30,1984, it was noticed that the support at pier five north had started togive way. Upon the installation of two additional tie-downs, the secondlift was attempted which resulted in the crane’s collapse and employeeinjuries._CONCLUSIONS OF LAW_1. Paschen Contractors, Inc., at all times pertinent hereto, was anemployer engaged in a business affecting commerce within the meaning ofsection 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter hereinpursuant to section 10(c) of the Act.2. Respondent is, and at all times pertinent hereto, required to complywith the safety and health regulations promulgated by the Secretarypursuant to section 6(a) of the Act.3. Respondent, at the time of the aforesaid inspection, was in violationof 29 C.F.R. ? 1926.550(d)(4)._ORDER_On the basis of the foregoing findings of fact, conclusions of law, andthe entire record, it is hereby ORDERED:The citation is hereby affirmed and a penalty in the amount of $2,500 ishereby assessed.Dated this 15th day of October, 1985.PAUL L. BRADYJudge————————————————————————FOOTNOTES:[[1\/]] That standard provides:?1926.550 _Cranes and derrricks._(d) _Overhead and gantry cranes_(4) All overhead and gantry cranes in use shall meet the applicablerequirements for design, construction, installation, testing,maintenance, inspection, and operation as prescribed in the ANSIB30.2.0-1967, Safety Code for Overhead and Gantry Cranes.[[2\/]] That provision says:*Section 2-0.1 Scope of B30.2*Within the general scope, defined in Section I, B30.2 applies tooverhead and gantry cranes, including semi-gantry, cantilever gantry,wall cranes, storage bridge cranes, and others having the samefundamental characteristics. These cranes are grouped because they allhave trolleys _and similar travel characteristics._ (emphasis added)[[3\/]] The parties did not litigate whether there were violations of anyrequirements in section 1926.554, and we will not adjudicate issues notbefore us. We mention, however, if the Secretary should encounter thissituation again, that there may have been a violation of section 1926.554(a)(2) here, as it was not the lifting mechanism that failed, but thesupport structure. Depending on the manufacturer’s requirements, therealso may have been a violation of 1926.554(a)(6).[[*\/]] This decision was not overruled in _Lisbon,_ _supra,_ based uponthe dissimilarity of the machines used as cranes.”