Safety Policy: OSH Review Commission Clarifies Meaning of \"Immediately Available\" with Reference to Lifesaving Skiff Requirement

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 crane must be level, on firm ground, with the outriggers fully extended and the tires clear of the ground before beginning any operation.
• The crane must be level before making a lift: a 3-degree side tilt can reduce capacities by 50% or more.
• \"If a smooth level route is not available, don\'t travel with a suspended load.\"

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