By: Thomas H. Welby Published: January 2010

Safety Policy: ALJ Upholds OSHA Citation Following Drowning Death of Cat Operator

A safety precaution that sometimes “falls through the cracks” is the necessity to ascertain, before moving heavy equipment around on a jobsite, that the composition, and the condition, of the surfaces on which the equipment will be moving will withstand the weight of the equipment fully loaded.

In Secretary v. Central Florida Equipment Rentals, Inc., the employer was performing a subcontract on a waste water treatment facility in South Florida.  The job was to raise each of three manmade berms abutting retention ponds by about six inches.

CFER’s foreman, Villa, decided to carry out the job by using a wheel-mounted Caterpillar 725 to unload the fill in the top of the berms.  Then, while the Cat circled around the retention pond to bring in the next load of fill, a bulldozer would spread the prior load, by driving over the berm.  That would continue until the berm reached the required height.  A roller would then pass over the berm, to compact the soil. 
The Cat used on the berms measures 9.5’ wide from wheel to wheel.  It weighs a little over 49,000 pounds unloaded.  Fully loaded, it has a capacity just over 101,000 lbs.
The configuration of the berm was such that, at places, the Cat would have to be operated close to the edge, with only about 1.5 feet of clearance on each side.

CFER was told nothing by the owner, or the general contractor, regarding the condition of the berms, the composition of the soil, or whether the berms could support the weight of the Cat.  CFER was sufficiently concerned that there might be some issue regarding the points just mentioned, because Villa instructed employees not to fill the Cat to capacity.  However, no one at CFER made any inquiry to the public owner regarding the capacity of the berms, and did not direct employees to weigh their loads.  When the citation came to trial, it was noted that no one maintained the berm to regularly handle vehicle off-highway vehicle traffic in a safe manner.

CFER employee Tod Laroche, an experienced operator, was operating the loaded Cat near the edge of the berm at about 1:30 P.M. on a bright sunny afternoon when a portion of the berm grave way, causing the Cat (with Laroche strapped into the cab) to plunge into 20 feet of water in the retention pond.  Villa had walked the berm that morning and found that the same was fairly level, and without significant holes.  Villa did not test or evaluate the berm material, and it never occurred to him to inquire about its compactness.  It was Villa’s decision to have Laroche drive the loaded Cat onto the berm, but Villa admitted he did not know the weight-bearing capacity of the berm, the combined weight of the Cat and its load, how steep the berm was, the depth of the water in the pond, and whether there was any soil erosion on the side of the berm next to the water.  He underestimated the width of the Cat slightly.

Villa was not onsite when Laroche plunged into the pond in the Cat and, indeed, no one witnessed the accident.  Police and divers were summoned when employees saw the Cat in the water, but it took rescue workers until 4:30 A.M. the following morning (and three tow trucks) to pull the Cat, and Laroche’s body, from the pond.

CFER was cited for a “Serious” violation of an OSHA standard that prohibits moving construction equipment or vehicles upon “access roadways or grades” not constructed to accommodate safely the movement of the equipment and vehicles involved.

CFER contested the citation and penalty, and the matter came on for trial before an Administrative Law Judge.  OSHA’s compliance officer, Lopez, testified among other things that the probability of an accident was increased because the weight of the Cat’s load was concentrated under the vehicle’s tires.  Especially as the berm was made of pre-disturbed soil, Lopez likened it to a trench.  OSHA’s standards do not permit static loads (such as spoils piles) within two feet of the wall of an excavation.  Here, it was noted, the Cat represented a live load, that was only about 1.5 feet from the edge of the berm.

It was noted also at the trial that the manual for the Cat cautioned users, among other things, to know the machine’s dimensions; to operate the machine only with adequate clearance; avoid coming close to the edges of cliffs and embankments; and that rocky surfaces may cause side slipping.

The ALJ characterized CFER’s plan to use the Cat 725 atop the berms as a “recipe for disaster,” but acknowledged that, where the employer made efforts to comply with a performance standard and the Secretary argues that its efforts were deficient, it is incumbent on the Secretary to demonstrate where the employer’s efforts fell short, and what it should have done to comply.  The ALJ agreed with the Secretary that CFER should above all have made appropriate inquiries to determine whether the berm was constructed or maintained to accommodate its choice of vehicles.

The ALJ also turned aside several defenses proffered by the employer, among other things rejecting an argument that the berm was not a “road” for purposes of the standard cited, and a defense of “infeasibility.”  The latter defense required that CFER prove either that the job could not be done without the Cat 725, or that not using that equipment would present a greater hazard.

The “infeasibility” defense was quickly dispatched by proof that, following the fatality, the work was completed by delivering and dumping the fill at the near limit of the berm, and using a bulldozer to push the fill out onto the berm.

The citation was upheld as “Serious” and the monetary penalty proposed by the Secretary was approved.

Especially when it is proposed to operate equipment weighing up to 50 tons on surfaces that, being man-made, are inherently likely to be unstable, you can’t simply determine that the surface in question is safe by eyeballing it.  In such a case, you need an engineer’s input, plus documentation that technically adequate inquiries were made.  That applies tenfold when the intended use is close to any precipice or body of water.

In the CFER case, unfortunately for operator Laroche, his employer cut corners first by making no inquiries regarding the capacity of the berm, and second, by selecting the Cat 725 in large part because its greater capacity was expected to speed the job.

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