OSHA compliance can be doubly thorny whenever your company is working in collaboration with, or in proximity to, operations of another employer of the same "tier." This is especially so, if the other company’s trade is one you don’t often work with. While you probably know that OSHA imposes a duty to protect your employees against hazards created by others, you may lack sufficient familiarity with the other trade to feel qualified to question the other employer’s procedures. Plus, obviously, you lack authority to direct the other employer’s activities, and may feel the need to defer in the interests of advancing the project.
The better practice in such situations, however, is to err on the side of safety, and to make all inquiries necessary to detect potential hazards to your employees from hazards created by others.
In Secretary of Labor v. Associated Underwater Services, the respondent ("AUS") was a commercial diving company, and a subcontractor to British Petroleum in the construction of an oil containment boom off the coast of Washington.
Another sub, General Construction ("GC") was installing metal pilings in the ocean floor, at a depth of 140 feet, as structural support for the containment boom.
Because the piles had to be installed at "slack tide," and AUS’s hourly costs were higher than those of the GC crew, AUS arrived onsite only when GC employees had completed the work of taking each pile, by barge, to the place where it was to be installed, and lowering it into the water. Each pile was 22 feet long, and weighed about 8,600 lbs.
The piles were driven into the sea floor by one of two methods: an "impact hammer" and a "vibratory hammer." On the day of the occurrence, it was the vibratory hammer that was in use. This device is secured to a crane on the barge, controlled by a network of hoses, and fastened by a hydraulic jaw to a "pad eye," or steel plate welded to the top of the pile. The hammer, when activated, causes the piling to vibrate at 25 vibrations per second, while downward pressure from the weight of the hammer causes it to work itself into the sea floor.
Once the piling had been lowered in place, GC raised it by 1-2', and an AUS diver, Chris Primeau, entered the water, and followed hydraulic control lines down to the location of the piling. His first task was to ensure that the area beneath the piling was free from obstructions.
The procedure was that, once the diver had determined that the place where the pile was to be driven was unobstructed, he would radio instructions to GC to lower the piling, until it reached its "point of refusal" in the ocean floor. This was the depth in the ocean floor that the piling would reach, through the force of its own weight, and the weight of the hammer.
Then, the diver would instruct GC to activate the hammer. During the approximately six minutes necessary to drive the pile to the required depth, the diver either had to remain in place near the base of the piling, or ascend a few feet to a position above the piling ? in which case, he periodically had to ask GC to stop the vibration of the hammer, to permit him to return to the base of the piling, to verify that it was being driven plumb. (Visibility at that depth is only about 3-4').
If, at any time, the AUS diver observed any problem with the piling, he could transmit an "all stop" to the Dive Supervisor on the barge.
The vibratory hammer GC was using had jaws that opened to a maximum of 1.17", but the thickness of the pad-eye, to which it was clamped, was 1.25". OSHA later determined that GC employees had to "beat on it every time," indicating that something was obviously wrong with the connection between the hammer and the 8,600 lb. piling. However, no evidence was presented that AUS was aware of any such "beating" of the hammer onto the piling, or should have suspected that GC would use a hammer .08" too small to properly connect to the piling.
On the day in question, Primeau’s dive was preceded by the customary pre-dive "toolbox" meeting, which did not address any hazards associated with suspended loads, or diving near crane and pile-driving operations. A falling piling, both sides’ experts later agreed, is not a "general type of diving issue common to all diving."
Once in the water and at the base of the pile, Primeau reported that too much of the cluster of hoses that control the hammer’s functions had accumulated in the water. While GC adjusted the hoses, Primeau, with the approval of his Dive Supervisor, disconnected a wire cable that GC had, for the first time on the project in question, affixed to the piling before lowering it into the water.
That accomplished, Primeau returned to the base of the piling, and gave the go-ahead to activate the hammer. Within seconds, Primeau radioed an "all stop," and his video feed was lost. The pile had come loose from the hammer’s damaged jaws and had fallen on him, killing him.
Of three citation items that OSHA issued following this accident, the only one that came to trial requires a pre-dive assessment of the safety and health aspects of surface and underwater conditions and hazards.
The Secretary asserted that a reasonably prudent employer would have assessed hazards arising from GC’s pile-driving operation ? notably, the recognized hazard of a falling piling. GC’s written safety program called for employees to be kept clear of the fall radius, and the vibratory hammer’s operating manual cautioned that a safety line should always be attached to the pile, when extracting or hoisting it into position.
Indeed, a warning sign on the hammer itself, which AUS’s dive supervisor admitted he saw at the worksite, forbade the use of the hammer as a pile-lifting device, and cautioned that falling piles could result in serious injury or death.
At the trial level, the ALJ vacated the citation, agreeing with AUS that it was responsible only for assessing hazards from its own diving activities, and that it could not foresee that GC would use a hammer with damaged jaws, or jaws too small to securely grip the pad-eye.
On appeal, however, the Commission reversed and upheld the citation, finding that it was legally irrelevant whether the accident, or its precise cause, was foreseeable. The hazard was that the piling could fall, not that the jaws of the hammer were too small.
The Commission ruled that AUS had been assisting GC with work plainly within the definition of construction, and was therefore required to assess not only potential hazards unique to the commercial diving industry, but also construction hazards created by its fellow employers.
Had AUS inquired into procedures for installing underwater piles, it would likely have found that construction industry practice requires the use of safety lines between the piling and the crane. Especially where low-visibility conditions require the diver to carry out much of his work in close proximity to the pile, safety lines securing the pilings, until they were driven deep enough to stand on their own, are indicated (although, startlingly, they are not a consensus standard of the Association of Diving Contractors International).
The lesson here, of course, is that OSHA compliance, and protecting your employees from injury or death, requires that you make all necessary inquiries to detect and assess hazards to which your employees may be exposed, even if they are not peculiar to your trade, and are created by others.