Safety Policy: OSH Review Commission Clarifies Meaning of \"Immediately Available\" with Reference to Lifesaving Skiff Requirement
01 April 2013
The OSH Act requires that \"at least one lifesaving skiff shall be immediately available
at locations where employees are working over or adjacent to water.\"
In a case of interest, also, because it disapproved the so-called \"pick
and carry\" operation of mobile hydraulic cranes, the OSH Review
Commission, affirming an Administrative Law Judge\'s findings, clarified
what \"immediately available\" means. The employer in Secretary v. Boh Brothers Construction Company
was building two bridges over Lake Pontchartrain, Louisiana for the
\"Interstate 10 Twin Span Project.\" These bridges, both more than five
miles long, extend between Slidell, La. and New Orleans. Boh had
numerous crews at work, in multiple areas on and around the bridges. It
also had more than a dozen boats in the vicinity, which it used for
transporting workers and materials, as well as to respond to water
emergencies. On the day in question, two boats were continuously manned by Boh
employees. Additional boats available for water rescue were docked in a
boat pen at the north shore. The pen was located 150 to 200 yards away
from an office trailer, staffed with at least one employee qualified to
operate a boat, and provide first aid. On the bridge deck near the north shore, Boh was building curbs
along the edges of the deck using curb forms. Once a curb was finished
in one location, laborers disengaged the forms, and a mobile hydraulic
crane lifted them and traveled up to 150 feet, to deposit them at the
next location. This procedure is known as \"pick and carry.\" Each load,
with rigging and attachments, weighed just under 3,000 lbs. At the
location, the deck had a slope of 1.43 degrees (2.5%) and a downward
gradient, toward the north shore, of 0.9 degrees (1.6%). The crane operator was working only his second day on the job.
Like his predecessor, he was operating the crane on an uneven surface,
with the crane\'s outriggers retracted. The prior operator kept the
curb forms in front of the crane, both when lifting the load, and while
traveling with it. The new operator swung the load from the front of
the crane to the back before traveling, which meant that the load was to
the side of the crane as he rotated the boom. A supervisor, concerned that the new operator\'s technique might
not be safe, exhorted him to \"at least keep the boom scoped in\" (to its
shortest length) to reduce the radius of the swing. On the day in
question, the operator followed these instructions, and carried out two
\"pick and carry\"
procedures without incident. The third time, the operator did not
follow his instructions. As he hoisted a form, and began to swing it to
the side, the crane tipped over, and fell onto the guardrail. The operator lost consciousness and remained in the cab, dangling
over the water, for between 2 and 7 minutes, while other employees held
onto the crane, attempting to keep if from falling into the lake.
Tompkins, the foreman supervising the crane\'s operations, immediately
made a cell phone call to Moulton, the senior project superintendent, to
report the accident. Moulton used his cell phone to place multiple
calls, including one to Solis, the field project manager, who was in the
officer trailer at the north end of the bridge; and one to foreman
Bailey, who was also at work on the bridge\'s north side. Bailey used his cell phone to call Jones, the lead boatman. Jones
then called Byrd on his marine radio. At that time, Jones and Byrd
were both in their boats on the water near the south shore. Bailey
drove to the accident scene on the bridge, and was on the phone with
Moulton, when the crane operator fell from the crane into the water. Byrd was between 3 and 4 miles from the accident scene when he
received the call from Jones. It took him between 6 and 10 minutes to
reach the crane operator in the water. Project manager Solis, in the
meantime, ran 150-200 yards from his office in the trailer to the boat
pen. He traveled 250 to 300 feet, reaching the rescue location shortly
after Byrd did. Byrd and Solis were not able to pull the unconscious
operator out of the water and into the boat, but held his head above
water, while steering the boat to the shore, where emergency personnel
were waiting. Unfortunately, the operator died a week later from his
injuries. OSHA cited Boh for failure to have a lifesaving skiff
\"immediately available,\" and for the operator\'s improper use of the
mobile crane. While the standard does not define \"immediately available,\" an
OSHA interpretation letter identified factors relevant to that
determination. While an interpretation letter is not binding precedent,
the Administrative Law Judge ruled that whether Boh had made a
lifesaving skiff \"immediately available\" turned on whether it had a
water rescue system in place that could be expected to rescue a worker
from the water within the three-to-four minute period before permanent
brain damage could occur. The ALJ determined that Boh\'s response was prolonged by its
failure to equip crew boats with radios capable of receiving an
emergency broadcast channel. He also discounted the availability of
boats and operators on the north shore, in part because Solis was not
assigned lifesaving duties on that day, and the only active crew boat
operators were miles away from the accident. The office trailer on the
north shore, the Secretary argued, was too far away from the boat pen,
for an operator stationed there to be considered in the \"immediate
area.\" Accordingly, and based on the operator having been in the water
for between 8 and 12 minutes, the ALJ found that the requirement of a
lifesaving skiff \"immediately available\" had not been complied with.
The citation and the associated penalty were therefore affirmed, and
that outcome was upheld on appeal. The Commission also agreed with the ALJ that Boh had violated the
standard requiring that a crane be operated only within the
manufacturer\'s specifications and limitations. In defense of the \"pick
and carry\" operations on the bridge deck, Boh attempted to show at trial
by expert witness testimony that \"pick and carry\" is an accepted
practice in the bridge construction industry - even when performed on a
sloped surface, and without outriggers.
The ALJ stressed that the manual for the crane used (a Link-Belt RTC 8030 Series II) states that:
The prior crane operator testified that he had done \"pick and
carry\" operations even though the deck was not level, and he was
generally aware that a gradient affects load capacity. The employer\'s
expert testified that the key to safe operation (and accepted industry
practice) when operating a mobile crane \"on rubber\" on a sloped surface,
is to \"derate\" the crane. This means adjusting the load charts to
compensate for the slope, and staying within the crane\'s reduced
capacity. The crane was equipped with a computerized \"Capacity Limiter,\"
which monitored crane functions, and continuously compared the load with
a copy of the crane capacity chart in the computer\'s memory. However,
the viewing screen was faded, such that, in daylight, the operator would
have to shade the screen to read it. Rejecting the expert\'s testimony, the ALJ found that \"derating\" is
irreconcilable with the manufacturer\'s instructions, and that traveling
with a load on a sloped surface during \"pick and carry,\" without
outrigger beams extended and jacks partially deployed, is impermissible.
If you would like more information regarding this topic please contact Thomas H. Welby at twelby@wbgllp.com or call (914) 428-2100