By: Geoffrey S. Pope Published: December 2020

OSH Review Commission Vacates General Duty Clause Citation Based on Insufficient Proof of Effective Means of Abatement

OSHA’s construction standards (Part 1926 of 29 C.F.R.) provide a detailed body of rules giving a clear picture of what the law requires.  In addition, there is a single, not-so-clear rule, that supplements the specific standards — something of a “wild card,” widely dreaded by construction employers:  the General Duty Clause, 29 U.S.C. § 654(a)(1).

While widely misunderstood as a catch-all allowing employers to be cited for any condition that the inspector deems to be a hazard, a violation of the General Duty Clause includes necessary elements in addition to a hazard not covered by a specific standard, and is often contested successfully.

In Secretary v. Lane Construction Corp., an employee was fatally injured while operating a diesel-powered hammer to drive concrete piles at a bridge construction project.  Following inspection, OSHA issued a citation alleging a violation of the General Duty Clause, for exposing employees to “struck-by hazards” while they worked near the hammer’s base of operation.  After trial, the Administrative Law Judge affirmed the citation as “Serious,” and assessed a monetary penalty.  The employer sought review by the OSH Review Commission, which reversed the ALJ’s decision, and vacated the citation.

Lane, working on a bridge on a section of a highway described as a “watercourse,” was using a diesel-powered hammer to drive 65-foot concrete piles into the ground along the highway. The hammer rides in — and is guided by — a cage-like device (the “leads”) which is enclosed on three sides.  At the bridge worksite, the open side of the leads faced the watercourse. As the piles were being driven, Lane used a crane to suspend the hammer and the leads above the ground. Fuel to the hammer was controlled by three ropes; two of the ropes controlled the flow of fuel to the hammer’s throttle, and the third rope — a “kill rope” —if pulled would stop the flow of fuel.  A 90-pound “pile cushion” made of plywood layers sat at the bottom of the hammer, to act as a buffer between the hammer and the concrete pile during the pile-driving procedure.

On the day of the accident, Lane’s crew was conducting a “dry run,” preparing to drive a test pile.  During a dry run, the hammer is lifted to a certain height, and its piston is then unlocked, causing the piston to drop, and the hammer to drive the test pile into the ground. For this dry run, the hammer operator was holding the kill rope, but not the other two ropes, because in a dry run, the piston drops and drives the hammer as a result of its own weight.  On this occasion, when the piston dropped, and the hammer impacted the test pile, the test pile sank twelve to fifteen feet into the ground, much deeper than is usual during a dry run.  For undetermined reasons, when the hammer struck the test pile, the cushion was ejected from the bottom of the hammer, fell 55 to 60 feet, and fatally struck the hammer operator.

The elements needed to prove a General Duty Clause violation are:  (1) a condition or activity in the workplace that presents a hazard; (2) that the hazard be one recognized by the employer’s industry, or by the employer itself; (3) that the hazard cause, or be the  likely to cause, death or serious physical harm; and (4) that there existed a feasible and effective means to eliminate or materially reduce the hazard.

Of the proceeding elements (1) and (3 apply to  all “Serious” OSHA violations, and are unremarkable.  However, refuting the notion that the General Duty Clause gives the inspector unchecked latitude to cite any and all hazards to which no specific standard applies, the Secretary, to sustain a citation, must prove that the hazard was one known in the industry in which the employer was engaged, or known to the individual employer.  In addition, a General Duty Clause violation cannot be sustained, unless the Secretary demonstrates both that specified abatement measures are capable of being put into effect, and would be effective in materially reducing the hazard.

In Lane Construction, the Secretary proposed, as a means of abatement, that Lane require its employees to “keep a minimum distance of 13 feet . . . from the units to be driven,” in accordance with the hammer’s operating instructions.  Lane did not dispute that requiring its employees to stand at least 13 feet away from the pile during driving operations would materially reduce the struck-by hazard.  It conceded that the operator, in most instances, would have stood at least 13 feet away from the pile.  It insisted, however, that the Secretary failed to show it was feasible for the operator to do so in the case being tried, because of the adjacent watercourse.

The ALJ rejected Lane’s argument, finding that Lane could have converted the hammer’s “manual” fuel control system (i.e., one controlled by ropes) to a hydraulic system, permitting the operator to stand 13 feet away from the pile. In support of her finding, the judge pointed out that Lane, after the accident, had changed to a hydraulically-operated diesel hammer. She concluded that the method of abatement was, therefore, feasible, because “[i]t was unrebutted on this record that Lane was able to use such a system at this worksite.”

On review, Lane convinced the Commission that the Secretary had failed to show that using a hydraulic control system obviated the need for a kill rope, and was therefore a feasible means of enabling the operator to stand at least 13 feet away from the pile. In overturning the ALJ’s finding on feasibility, the Commission ruled that the ALJ had placed undue reliance on the Compliance Officer’s perfunctory testimony, lacking in detail, on how such a system could have been was used at the worksite. The Commission found that the CO failed to explain how a hydraulic control system works, or where an operator would actually stand when using one.

Neither the CO’s testimony, nor the fact that Lane subsequently used a hydraulic control system (the Commission concluded) established that such a system would have allowed Lane’s operator to stand at least 13 feet away from the pile, while operating the hammer at the worksite where the fatality occurred.  With such slender evidence of what a hydraulic control system] does, what it replaces, or what the operational implications were to the workplace, the Commission found that the ALJ lacked a sufficient basis to conclude that such a system was feasible.

Thus, while the General Duty Clause must be treated with respect, it is not to be feared as some sort of administrative “Godzilla.”  If you strive to be alert to possible hazards not covered by specific OSHA standards, as may exist on your jobsites, and whether and how they might be abated, you should have little to fear.

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