By: Thomas H. Welby Published: September 2016

OSH Commission Upholds Citation Based on "Performance" Standard Following Drowning Incident (Part 1 of 2)

This month’s OSHA case involves a citation contest, in which the employer had deployed a large dump truck to haul loads of fill across a narrow berm that abutted a retention pond.  Tragically, the edge of the berm gave way, the dump truck went into the pond, and the operator drowned.

The employer was cited under a seldom-seen OSHA standard forbidding construction equipment or vehicles on “access roadways,” unless the same are constructed and maintained to safely accommodate them.

I’m going to go ahead and tell you the ending:  the citation and penalty were affirmed, first by an Administrative Law Judge, and afterward, upon discretionary review, by the OSH Review Commission.

However, I think the case (Secretary v. Central Florida Equipment Rentals) is instructive on several different levels.  Most obviously, even experienced sitework contractors may be unaware that there’s an OSHA standard that requires you to ascertain the capacity and the safety of access roads, before putting equipment and vehicles on them.

In addition, although both the ALJ and the Commission upheld the citation, they did so for very different reasons, and studying the Commission’s clarification as to how standards are enforced may help you refine your safety program, to reduce the risk of citations.

One “takeaway” from this month’s case  is that, under most OSHA standards, the Secretary needs to prove that conditions proscribed by the standards cited existed, but not that they constituted a hazard. Another primary takeaway is that, if a standard states a prohibition, “unless the employer” shall have taken some specified action, or made some specified determination, the burden falls on the employer to prove that the condition was satisfied.

Finally, the last “takeaway” is that you must not casually operate a dump truck, weighing upwards of 75 tons atop a narrow berm of undetermined stability, with only a couple of feet of clearance on each side, abutting a retention pond more than 20 feet deep.

In this month’s installment, we’ll give you the facts of the case, and highlights of the trial evidence.  Next month, we’ll discuss the applicable law, as viewed by the ALJ and, later, somewhat differently, by the Commission.

In Central Florida, the employer had a $2.3 million subcontract to raise by 6" several berms situated next to retention ponds at a wastewater treatment plant in Florida.  The berms ranged from about 7.4 feet to 9.6 feet in height.

The employer’s foreman and superintendent selected a CAT 725 six-wheel articulating dump truck to drive along the top of the berm, and dump the fill.  The CAT weighed about 25 tons when empty, and about 51 tons fully loaded.  The plan was that the CAT would deposit a load of fill atop the berm, and then circle around the retention pond to get the next load.  While the CAT was off the berm, a bulldozer would drive over it to spread the fill, followed by a roller, which would compact the soil.

Neither the owner nor the general contractor made any representations to the subcontractor regarding the condition of the berms, the composition of the soil, or the ability of the berm to support the weight of the CAT.  Under its subcontract, the employer was responsible to investigate the site, and all field conditions and dimensions; to take all reasonable safety precautions; and to comply with the OSH Act.  However, Central Florida made no inquiries concerning the load-bearing capacity of the berm, or whether it was capable of supporting the weight of the CAT.

Central Florida’s foreman testified that the employer did not test or evaluate the compactness of the material constituting the berm, and did not know the weight of the loaded CAT, or whether the berm was capable of upholding it.  Essentially, the employer just assumed that the berm was capable of supporting the fully-loaded CAT, based on a visual inspection, and prior experience working in the general vicinity of the berm.

One afternoon, before the County even knew that the subcontractor had started work, the loaded CAT was being operated on the berm, with as little as 18” clearance on either side.  The edge of the berm gave way, the CAT fell into at least 20’ of water in the retention pond, and the operator drowned.  Investigators — there were no eyewitnesses — concluded that the berm, constructed of rock and fill, had given way under the weight of the CAT.  Police pulled the CAT from the water beneath a damaged section of the berm, which displayed tire marks in the dirt road leading to the collapsed area.

Following OSHA’s investigation, the subcontractor was cited for a “Serious” violation of 29 C.F.R. § 1926.602(a)(3)(i), which provides:

No employer shall move or cause to be moved construction equipment or vehicles upon any access roadway or grade unless the access roadway or grade is constructed and maintained to accommodate safely the movement   of the equipment and vehicles involved.

Central Florida contested the citation and, at trial, presented expert witness testimony by a former OSHA Area Director.  This expert opined that the standard in question was unconstitutionally vague, and more germane to road construction and large excavations.  He also faulted OSHA for not having obtained the assistance of an engineer to analyze the accident, determine the weight of the CAT and its load, test the berm, and do sampling.  He also expressed the view that the employer’s visual inspection was sufficient, the employer’s duty being to do only what it deemed prudent, within its industry practice.

The employer’s superintendent downplayed the importance of the tight clearance on either side of the CAT, as there were no turns on the roadway atop the berm, and the vehicle had only to travel 250 feet straight across the berm.  He also claimed to have knowledge that machines, including a back hoe, crossing the berm prior to the CAT 725, far exceeded the weight of the latter.

OSHA’s safety engineer, testifying for the Secretary on rebuttal, stressed that the berm, constructed of pre-disturbed soil, would not be as stable as it would have been in a natural state, and that the probability of a mishap was increased by the concentration of the CAT’s load beneath its tires.  Using the same principles of soil mechanics as prohibit a static load within two feet of the wall of an excavation, OSHA’s engineer opined that the use of the CAT, with its wheels just 18” from the edge of the berm, was unsafe.  The employer, in the view of OSHA’s expert, ought to have consulted the designer of the berm, or  used a smaller vehicle.  He could also have used a different method, as demonstrated by the fact that the completing contractor  had dumped the fill at the ends of the berm, and used a small bulldozer to push it out onto the berm.

OSHA’S engineer also testified that the cited standard’s applicability was proven by the operation of vehicles on the berm, making it an “access road.”  He conceded that OSHA had not performed soil testing as part of its investigation, but argued that the police report’s conclusion that the CAT had gone into the pond due to the collapse of a portion of the berm was persuasive, and that the undisputed fact of the collapse established that the employer had done too little to ensure that it was safe to operate the loaded CAT on top of the narrow berm.  He rejected the view that OSHA had been remiss in not doing its own soil testing; that information, he stated, ought to have been known to the employer.

Ultimately, the citation and associated monetary penalty were upheld, but the reasoning of the ALJ, and that of the OSH Review Commission, were dissimilar in several key respects.  In next month’s installment, we will look at the different paths by which the ALJ and the Commission arrived at the same result.

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