By: Thomas H. Welby Published: November 2009

Safety Policy: "Swing Radius" Hazards, OSHA%u2019s General Duty Clause, and the Infeasibility Defense

Although many construction hazards have their very own OSHA standards, even in the absence of a standard directly addressing a particular worksite hazard, the same may be subject to OSHA’S “General Duty Clause.”

 “Struck by” incidents being a major class of construction site injuries, OSHA compliance officers are attentive to the hazard of employees being struck by rotating or swinging parts of cranes, drilling rigs, and other types of heavy equipment.  A recent case illustrates one type of “swing radius” hazards not covered by any specific OSHA standard, but falling within the General Duty Clause.

OSHA has never pursued the unachievable elimination of all conceivable workplace dangers, but does requires workplaces free from recognized health and safety hazards.  One aspect of this policy is the “infeasibility defense,” which may apply where full, technical compliance with a standard is infeasible.  This defense is discussed in the second of the two cases discussed below.

In Secretary v. A. H. Beck Foundation Co., Inc., the employer was drilling 55-foot foundation pier holes for a bridge.  The employer was using a track-mounted mobile drilling rig.  After each dig, the operator would swing the bucket on the end of the rig arm 90 degrees to one side, to dump soil into a designated area.  

Although the employer was aware of red-tape barricades as a precaution against swing radius hazards, it had no such barricades in place in the area where its drilling rig was in use.  Its superintendent testified that such barricades were used only where there was too much activity, or too many pieces of equipment, to permit a “stim man” to safely act as monitor.  A. H. Beck’s “stim man” was responsible to constantly monitor the rig, and to ensure, by exchanging hand signals with the operator, that the rig did not rotate, unless and until all employees were clear of the swing radius area.  Employees were trained to position themselves outside the rig’s swing radius every time the drilling rig was about to rotate.  The rig rotated slowly — 3 RPM maximum — and had multiple, large warning signs stating “Danger.  Keep Out of Turning Area.”

Swing radius hazards on this type of equipment do not fall under any specific OSHA standard.  Because, however, they are a hazard recognized by the employer or its industry, they are governed under the OSH Act’s General Duty Clause.  Section 5(a)(1) of the OSH Act states that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  To sustain the citation alleging a violation of the General Duty Clause, the Secretary had to prove that (1) a condition or activity in the workplace presented a hazard to employees; (2) the employer or its industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.

Elements (1) through (3) of the violation being conceded as obvious, the question of whether the employer had violated OSHA in A. H. Beck turned on whether it had sufficiently protected its employees by the use of a “stim man,” together with the warning signs and employee training.

At trial, the Secretary acknowledged two recognized (but not exclusive) means of protecting employees against swing radius hazards.  The first (“Abatement Method A”) is, essentially, to barricade all accessible areas of the swing radius of the rotating structure of the drilling rig.  An alternative, “Abatement Method B,” is recognized “during operations that require the equipment to be constantly moving,” and requires “any available alternative precautions” to include the posting of signs, instructing employees in the dangers of both swinging parts of the equipment and “pinch points,” instructing operators to swing only on signals from a foreman or designated signal man, and requiring employees not to move a rig, until they know the area is clear.

The Secretary’s argument in A. H. Beck was that “Abatement Method B” was not available to the employer, because its drilling rig was not “constantly moving.”

The Administrative Law Judge held that the Secretary had failed to demonstrate a violation of the General Duty Clause, rejecting its “constantly moving” argument on two grounds.

First, the ALJ stated, the rig in question was mobile.  It was “constantly moving,” as part of the digging and excavation process, and no piece of heavy equipment performs its primary function without stopping to perform other, associated activities.  The Compliance Officer had conceded that he would consider the rig to be “constantly moving” (and thus eligible for Abatement Method B)  if it were stopping repeatedly to drill a series of 6-foot deep holes, because it would not then remain in place for a long period of time.  The ALJ found arbitrary the Secretary’s position that “constantly moving” encompassed numerous stops to drill 6-foot holes, but not a single stop to drill a 55-foot hole.

The ALJ found also that the General Duty Clause does not limit employers to abatement methods recognized in prior cases, but not comprising part of the regulations.  It being conceded that the employer had essentially put “Abatement Method B” into effect, the ALJ found no reason to conclude that the same would be effective when the rig was mobile, but not when it was stationary.  After all, the judge observed, the mobile rig presents two swing radius hazard possibilities:  (1) that employees will walk into the swing radius of the rig’s rotating parts; or (2) that the rig itself will bring the hazard to employees, by maneuvering into an area where employees are present.  If one were to accept the argument that the rig in question was stationary, the ALJ concluded, given the Secretary’s concession that the use of signs, training and signaling watchmen would be effective abatement for a mobile rig, the same would necessarily be effective abatement for a stationary one.

In Secretary v. J. F. White Contracting Co., the employer was cited for a violation of 29 C.F.R. § 1926.550(a)(9), which requires that “[a]ccessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.”  The usual, approved method of barricading involves attaching 10-foot long pipes to the tracks of the crane, with caution tape placed at the ends of the pipes.

The employer pleaded the affirmative defense of infeasibility of compliance, arguing that the crane was not barricaded because it was to be used in an area where it was too narrow to place barricades in the usual manner, and still be able to rotate the crane.

The infeasibility defense requires proof that the means of compliance under the applicable standard were infeasible, in that (a) their implementation would have been technologically or economically infeasible, or (b) necessary work operations would have been rendered technologically or economically infeasible by their implementation.  In addition, the employer must show either (a) that is employed an alternative method of protection; or (b) that there existed no feasible alternative means of protection.

The ALJ in J. F. White found that the employer had successfully shown that technical compliance (using the usual method) was infeasible, but that the defense failed nonetheless, because its use of employee spotters provided a lesser margin of safety than the available alternative means of using PVC poles and yellow caution tape as a physical barricade.  By not   making the barricade, the ALJ found, the employee had failed to do everything it could to reduce employee exposure to the rotating superstructure of the crane.  Accordingly, it was not entitled to the benefit of the infeasibility defense.

Thus, whenever you recognize a hazard not covered by a specific OSHA standard, the General Duty Clause requires you to abate it, if feasible.  And, while there exists an infeasibility defense under the statute, it’s an issue on which the employer has the burden of proof, and it must prove not only the infeasibility of strict compliance, but that the best alternative means of protection were employed (or that no alternative means were feasible).

© Welby, Brady & Greenblatt, LLP.
All Rights Reserved. By visiting this site, you agree to our Terms of Service. For more information please read our Privacy Policy Attorney Advertising