Thomann Asphalt Paving Corp.

Plain-English summary

A Thomann Asphalt Paving employee died when a roller without a rollover protective structure slid from an embankment and overturned at a New York school construction site. OSHA cited the company under the general duty clause, alleging that a rollover protective structure was a feasible way to address the recognized crushing hazard. The judge found that rollover hazards were recognized when compactors operated near unstable edges, but OSHA had not established that industry practice required rollover protection for the flat compaction work performed at this site. He also found that the Secretary did not prove Thomann's training, supervision, and rules requiring operators to avoid edges and roll perpendicular to slopes were inadequate. The remaining citation item was vacated.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The general-duty citation alleging a recognized roller rollover hazard was vacated.
• Key point: A general-duty citation requires proof that the proposed additional safeguard is recognized as necessary for the specific work conditions and that the employer's existing preventive measures are inadequate.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. DOCKET NO. 02-1705
THOMANN ASPHALT PAVING CORP.,
Respondent.

APPEARANCES:

For the Complainant: Vivien V. Ranada, Esq.
William G. Staton, Esq.
Office of the Solicitor
U.S. Department of Labor
New York, New York

For the Respondent: Robert G. Walsh, Esq.
Blasdell, New York

Before: Administrative Law Judge Michael H. Schoenfeld

                               DECISION AND ORDER

Background and Jurisdiction

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Sections 651-678) (“the “Act”).
Respondent, Thomann Asphalt Paving Corp. (Thomann), at all times relevant to this action
maintained a place of business at the Perry High School, in Perry, New York, where it was engaged
in excavation, site preparation and paving. The Commission has held that construction is in a class
of activity which as a whole affects interstate commerce. Eric K. Ho, Ho Ho Ho Express, Inc.,
Houston Fruitland, Inc., 20 BNA OSHC 1361, 2002 CCH OSHD ¶32,692 (Nos. 98-1645 & 98-
1646, 2003), citing, Clarence M. Jones d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH
OSHD ¶26,516 (No. 77-3676, 1983). Thomann is, therefore, an employer engaged in a business
affecting commerce and is subject to the requirements of the Act.
On March 18, 2002, a Thomann employee was killed in a rollover accident at Thomann’s
Perry work site. After being notified of the fatality, the Occupational Safety and Health
Administration (“OSHA”) initiated an inspection. As a result of that inspection, Thomann was
issued citations alleging violations of the Act. By filing a timely notice of contest Thomann brought
this proceeding before the Occupational Safetyand Health Review Commission (“the Commission”).
Prior to the opening of the hearing, the parties settled all but Citation 1, Item 1, alleging a violation
of Section5(a)(1) of the Act (Tr. 5). On October 7-9, 2003 a hearing was held on that matter in
Buffalo, New York. The parties have submitted briefs on the remaining issue and this matter is
ready for disposition

Facts.
On March 18, 2002 Thomann was excavating an area at the Perry site, preparing for the
installation of infrastructure for a proposed addition (Tr. 73, 352-53; Exh. C-4). Soils excavated
from the area were trucked to one of two dumping sites, one to the north and one to the south of the
tennis courts located west of the existing school (Tr. 74-75, 102; Exh. C-4). The spoil piles infilled
an area beside an elevated two-lane road, creating an extended plateau level with the road and
dropping off at a slope of approximately 35° (Tr. 79-81, 402, 404; Exh. C-4, C-5, C-6). A 27,800
pound bulldozer was then used to level and compact the dirt at each spoil pile (Tr. 75, 104, 353).
A Bomag roller then sealed the top of the soils to facilitate run-off (Tr. 77, 105, 354, 357-58). The
sides and edges of the spoil piles’ slopes were not compacted (Tr. 127).
At the end of the work day, a Thomann employee, Dave Drysdale, was driving the Bomag
roller south along the edge of a paved road which ran between the north and south spoils areas (Tr.
81, 270, 360, 362, 365; Exh. C-4). Salvatore Lima, a heavy equipment operator who passed
Drysdale on the road, testified that the roller was partially on the pavement and partially on the
grassy area bordering the road (Tr. 360, 362, 365). Lima estimated that the roller was about eight
feet from the edge of the flat grassy area (Tr. 377). Short of the southern spoil pile the Bomag roller
slid off the side of the grassy embankment and rolled over, pinning Drysdale underneath (Tr. 108,
124, 403-04, 480; Exh. C-5, C-7).
The Bomag roller/compactor was not equipped with a rollover protective structure (“ROPS”),
although it was an option available for the equipment (Tr. 14, 22-23, 29, 240; Exh. C-2). Scott

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Conway, Thomann’s shop supervisor (Tr. 12), testified that three of Thomann’s excavating
compactors have ROPS installed but that two others do not (Tr. 17, 31). Conway was not aware of
any requirement that ROPS be installed on all roller/compactors (Tr. 45). He was aware that
compactors posed a danger of rolling over if operated improperly or if on unstable conditions such
as on the side of a hill (Tr. 25-26).
Dexter Orwat, Thomann’s superintendent (Tr. 64), testified that when operating the roller,
operators are instructed to roll perpendicular to the slope to prevent the machine from sliding off the
edge (Tr. 70-71, 85-86, 96). They are told to drive slowly,1 and to consider the stability of the
material being rolled as well as the proximity of the slope (Tr. 83-85). According to Orwat, an
experienced operator can tell how close to the edge the roller can safely be driven by the feel of the
material under the roller (Tr. 84-85). Orwat had heard of compactors rolling over; specifically, he
knew of one that slid off the side of a road into a ditch (Tr. 92-93). Orwat stated however, that there
was no reason for the roller to get close enough to the incline at the Perry work site to be in danger
of rolling (Tr. 106-09). Orwat testified that it was up to Dave Thomann, the owner who also
supervised jobs, to determine whether a given job required the use of a roller equipped with ROPS
(Tr. 91-92). Orwat nonetheless believed that ROPS would, in most circumstances, prove a hindrance
to the operator. Because operators must wear seatbelts when operating ROPS-equipped compactors,
their vision is obstructed by the roller (Tr. 112-13). According to Orwat, the operator needs to be
able to stand up in his seat to see where he is going (Tr. 113-14).
Dave Thomann testified that he was not aware of any requirement that compactors have
ROPS (Tr. 228). Sometimes compactors are seen with ROPS; often they have no ROPS (Tr. 241).
According to Thomann, ROPS might be required when rolling an embankment with a “sheepsfoot”
compactor; however, Thomann never performed that kind of work (Tr. 229-30). Thomann was
aware that compactors can roll over if an operator improperly rolls parallel to an embankment (Tr.
230-32). He also recognized that it would be hazardous to get too close to a leading edge, which
might fall away (Tr. 232-33). In order to abate any hazard associated with the edges of
embankments, Thomann employees are instructed to comply with applicable safety rules (Tr. 231-

    1
     According to Scott Conway, a roller/compactor generally operates between three and

eight miles per hour (Tr. 50).

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32). Specifically, employees are trained to roll perpendicular, never parallel, to an edge (Tr. 231).
Only trained, competent operators are allowed to maneuver the roller/compactors (Tr. 235).
Employees are monitored on a daily basis, and those who fail to comply with the rules are corrected
(Tr. 234, 236-38). Thomann had never before had a rollover on one of his jobs (Tr. 233).
Matthew Burkart is a civil engineer and president of Aegis Corp., a consulting firm providing
engineering and safety services (Tr. 132-34). Burkart has nearly 40 years of experience in the
construction industry and is a member of the National Safety Council, the American Society of Civil
Engineers, and the American Society of Safety Engineers, among other organizations. Burkart
served as Chairman of the ANSI Accredited Standards Committee between 1984 and 2000 (Tr. 135-
37; Ex. C-8). Burkart testified that the rollover hazard posed by heavy equipment has long been
recognized in the construction industry, referring to: 1) Army Corps of Engineers regulations
requiring the use of ROPS on “self-propelled construction equipment such as front-end loaders,
backhoes, rollers, and compactors;” 2) regulations of the State of New York’s Board of Standards
and Appeals which require that “all earth moving, excavating or grading equipment or machines,2
whether mounted on crawlers or wheels,” which are sold or offered for sale in New York State or
used at any location in New York State be equipped with ROPS by January 1, 1973; and 3) a 1998
OSHA letter of interpretation which states:
. . . it is OSHA’s position that the hazard of equipment rollover is a “recognized”
hazard within the meaning of the General Duty clause (section 5(a)(1) of the
Occupational safety and Health Act), and that ROPS and seat belts are feasible in
many situations to reduce this hazard for compactors and skid steer equipment.
(Tr. 171-79; Exh. C-9, C-10, C-11). According to Burkart, a rollover hazard has long been
recognized in the construction industry, though no specific solution to the problem has been
formulated (Tr. 210).
Burkart acknowledged that there is little danger of a rollover occurring where a compactor
is operating on a solid base with no embankment (Tr. 181). Where there is no exposure, Burkart did
not believe ROPS were necessary (Tr. 151). He opined however, that ROPS could have materially
reduced the rollover hazard present on the Perry work site and should have been used in the

   2
     Burkhart believed that the roller compactor fell under the category of excavating and

grading equipment (Tr. 177).

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circumstances under which Thomann was working, i.e., where the compaction equipment was
operating near embankments on uncompacted spoils subject to giving way (Tr. 169-70, 180-81).
Compliance Officer (“CO”) Colin Sargent agreed that not all roller/compactors need to be
equipped with ROPS (Tr. 316-17). The CO stated that it is OSHA policy to cite only employers
operating rollers without ROPS in unsafe conditions (Tr. 316). OSHA has previously cited an
employer for failing to install ROPS on a Bomag tandem roller operating “adjacent [to] inclines of
sufficient length and steepness to allow the self-propelled steel drum roller to overturn” (Tr. 310-12;
Exh. R-10). Sargent concluded that ROPS were required on the roller/compactor involved in the
accident at Thomann’s Perry work site, as it was rolling filled material and was being operated
adjacent to a slope when it rolled (Tr. 281).
John P. Coniglio is a principal with Occupational Safety and Environmental Associates, a
construction consulting firm (Tr. 383). Coniglio is a certified safety professional and a code rule
enforcement officer for the State of New York (Tr. 384-85). In addition, Coniglio is an authorized
OSHA instructor and a member of a number of professional safety associations (Tr. 385-99).
Coniglio testified that, to form an opinion in this matter, he reviewed documents containing
commercial specifications for roller/ compactors published by the International Standards
Organization (Tr. 415; Exh. R-18) and the Society of Automotive Engineers (“SAE”) (Tr. 415, Exh.
R-19). He reviewed SAE performance critera for ROPS (Tr. 419; Exh. R-20) as well as safety
manuals for roller/compactors issued by Association of Equipment Manufacturers, and the
Construction Industry Manufacturers Association (Tr. 420; Exh. R-21, R-22). None of the
documents Coniglio reviewed indicate that ROPS are a required safety feature for such heavy
equipment (Tr. 416, 419, 421).3 Coniglio further testified that the State of New York does not, in
practice, require construction firms working on state authorized contracts to provide
roller/compactors with ROPS (Tr. 429-30).
Coniglio agreed that any piece of heavy equipment can tip over under extreme conditions or
if used improperly, i.e., at a high speed, especially going down an incline or being too near an

     3
         Bo th safety manuals note tha t “the danger o f sliding and/or tipping on steep slop es is always prese nt”

(Exh. R-21, p. 22, R-22, p. 19). The manuals warn the operator to avoid side-hill travel and drop-offs. (Exh. R-21,
p. 22 -23, R -22, p . 19-2 0).

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unstable edge (Tr. 441-42, 451, 453, 459). He recommends the use of ROPS in waste sites, where
the operator would be capping uncompacted waste with changing terrain (Tr. 459). For these jobs,
the industry has designed special-purpose compactors, such as a sheep’s foot compactor, which has
large metal bumps that grip the soil and is intended for work on grades (Tr. 432, 454). Such
equipment is supplied with ROPS and a seat belt (Tr. 455).
In Coniglio’s opinion, the industry has deliberately refrained from requiring ROPS on all
compactors after weighing the competing requirements and hazards involved with the operation of
such equipment (Tr. 431-32, 453). Coniglio noted that operators have trouble seeing over the drum
of many roller/compactors as they are currently designed (Tr. 431-32). Because seatbelts must be
used on all equipment with ROPS, the installation of ROPS would necessarily interfere with the
operator’s line of sight (Tr. 431).
In this case, the job to be performed did not call for the compaction of sloped areas (Tr. 457).
Under these circumstances, Coniglio opined that the hazard was best addressed with the use of well
trained knowledgeable operators (Tr. 432). Coniglio testified that Thomann’s operators were
operating safely, rolling perpendicular to the edges of the spoil pile and working a safe distance from
the edge (Tr. 433, 435, 458)

Discussion
Serious Citation 1, Item 1, alleges:
Section 5(a)(1) of the Occupational Safety and Health Act of 1970:
The employer did not furnish employment and a place of employment
which were free from recognized hazards that were causing or likely
to cause death or serious physical harm to employees in that
employees were exposed to the hazard of being crushed.

           a) Perry High School Project. On or about 3/13/02, an employee was
           operating a Bomag (BW 213D) single-drum vibratory roller without
           a roll-over protection structure (ROPS). Among other methods, one
           feasible and acceptable abatement method to correct this hazard is to
           install a rollover protective structure (ROPS) as originally provided
           with this roller by the manufacturer, and to install ROPS on any other
           similar equipment.



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provides:
The promulgation of specific standards for rollover protective
structures for compactors and rubber-tired skid-steer equipment is
reserved pending consideration of standards currently being
developed.

   In the absence of a specific standard, Thomann was cited under Section 5(a)(1), which

requires:

            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;

     In order to prove a violation of Section 5(a)(1) of the Act, the Secretary must show that: 1)

a condition or activity in the workplace presented a hazard to an employee; 2) the hazard was
recognized; 3) the hazard was likely to cause death or serious physical harm; and 4) a feasible means
existed to eliminate or materially reduce the hazard. The evidence must show that the employer
knew, or with the exercise of reasonable diligence could have known, of the violative conditions.
Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1991-93 CCH OSHD ¶29,617 (Nos. 86-360, 86-469,
1992).
The Secretary maintains that the construction industry recognizes the rollover hazard for
roller/compactors operating on or near loosely compacted slopes (Secretary’s Post-Hearing
Memorandum, p. 11-12).4 There is little question that this hazard is recognized in the industry.
Every one of the witnesses testifying knew of at least one compactor that had rolled over. Both

     4
        To the degree that the citation implies that use of this type or roller without ROPS is, by

itself, a recognized hazard, it would create a absurd situation. When the standards were initially
promulgated in 1972 the Secretary, in essence, said that a blanket ROPS requirement for such
equipment was under consideration. The Secretary declined to have a blanket ROPS
requirement for this type of equipment when the standard was initially covered. 29 C.F.R.
§1926.1000(1)(2). OSHA could have done so easily and clearly at that time. Indeed, the
reluctance of OSHA to do so was reiterated in an opinion letter of 1998, in which OSHA said it
was still under consideration. A total of over thirty years have elapsed and apparently, the
Secretary is still considering whether there should be a blanket requirement to have ROPS on
roller-compactors. Under these circumstances, the lack of ROPS could hardly be considered to
be a “recognized hazard.”

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safety experts agreed that all heavy equipment, including roller/compactors, can roll over if operated
too near an unstable edge. The question at issue in this case is whether “knowledgeable persons
familiar with the industry” would acknowledge that the use of ROPS was a “necessary and valuable
step for a sound safety program” in the specific circumstances existing at the Perry work site, see
Cerro Metal Products Division, Marmon Group, Inc.,12 BNA OSHC 1821, 1986 CCH OSHD
¶27,579 (No. 78-5159, 1986), or whether Thomann’s instructions to its operators, requiring them
to stay away from the edges of inclines and to roll perpendicular to the edges of the spoil piles, were
an adequate means of reducing the hazard.
An employer satisfies his duty under Section 5(a)(1) if he takes all precautions recognized
as necessary to prevent reasonably predictable exposure to recognized hazards. In this case, the
Secretary failed to establish, by a preponderance of the evidence, that the installation of ROPS on
roller/compactors was a recognized safety precaution necessary to prevent rollovers in the conditions
present at Thomann’s work site. It is clear that ROPS are not always required on roller/compactors.

   There are no industry wide standards requiring the use of ROPS on all roller/compactors, and

OSHA has specifically refrained from requiring rollover protection on compactors. In practice,
ROPS are installed on some, but by no means all, roller/compactors5. Complainant’s own expert
agreed that, despite the Army Corps of Engineers regulations, New York standards and OSHA
directives on which he relied in forming his opinion, ROPS are not required on all roller/compactors,
because the rollover hazard associated with such equipment is non-existent unless the compaction
equipment is operated near embankments or on uncompacted spoils subject to giving way. The
Secretary failed to carry her burden of establishing that knowledgeable persons within the industry
would regard the additional measures, i.e., the installation of ROPS, as a necessary and appropriate
measure in the particular circumstances existing at Thomann’s work site.
Moreover, for the following reasons, the Secretary failed to show that the actions taken by
Respondent in training and instructing its employees not to operate rollers too near edges or soft
earth were deficient. In this case, Dave Thomann and Dexter Orwat testified that the operation at the

   5
    As testified to by Orwat, while the seating on such machinery is more secure than a

howdah, when ROPS is installed, the use of seatbelts is mandatory.

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Perry school did not involve compacting slopes or require employees to operate roller/compactors
near the edges of uncompacted soils. The cited roller/compactor was used solely to seal the top of
a flat, previously-compacted, spoil pile. The uncontradicted testimony of Thomann and Orwat
establishes that Thomann’s operators were trained not to roll compactors near the leading edge of
a fill, and to roll perpendicular, never parallel, to the edge. Employees were closely supervised and
corrected when they failed to follow the rules. The Secretary does not argue or point to any evidence
suggesting that Respondent’s training, diligence in discovering violations, or discipline of employees
was inadequate.
It is well established that where, as here, the employer has a mechanism designed to eliminate
a hazardous condition which arises from the behavior or misbehavior of employees, the burden is
on the Secretary to establish that the employer’s measures were inadequate. Indeed, this principle
has long been recognized in general duty clause cases. Where an employer was charged with a
general duty violation involving employees for its alleged failure to prevent employees from riding
on the running board of a front-end loader, the United States Court of Appeals for the District of
Columbia held that;
[A]n actual occurrence of hazardous conduct is not, by itself,
sufficient evidence of a violation, even when the conduct has led to
injury. The record must additionally indicate that demonstrably
feasible measures would have materially reduced the likelihood that
such misconduct would have occurred.

National Realty and Const. Co., Inc., 489 F.2d 1257 (D.C.Cir.1973), 1 BNA OSHC 1422, 1428.
Avoiding slopes and drop-offs is recognized by the literature and by safety experts as an effective
means of eliminating the rollover hazard. The Secretary’s allegation that Thomann’s workplace was
not free from the cited recognized hazard cannot be sustained where the evidence shows that
Thomann issued unambiguous and well communicated safety rules reasonably calculated to
eliminate the hazard, i.e., prohibiting the use of the compactor near embankments or on uncompacted
soils. See, e.g., Jones & Laughlin Steel Corp., 10 BNA OSHC 1778, 1982 CCH OSHD ¶26,128
(No. 76-2636, 1982), Davey Tree, 11 BNA OSHC 1898, 1984 CCH OSHD ¶26,852 (No. 77-2350,
1984). Respondent’s description of its safety program, training and instructions to experienced
employees, while far from perfect, stands unchallenged on this record. In addition, the Secretary

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failed to present on this record any evidence as to what changes or improvements in its program,
training or instructions to employees could have been taken by Respondent.
Because the Secretary has failed to meet her burden Citation 1, Item 1, is vacated.

                                 FINDINGS OF FACT


   All findings of fact necessary for a determination of all relevant issues have been made

above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with
this decision are hereby denied.

                               CONCLUSIONS OF LAW


   1. Respondent was, at all times pertinent hereto, an employer within the meaning of Section

3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. § § 651 - 678 (1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties
and the subject matter.
3. Respondent was not in violation of Section 5(a)(1) of the Act as alleged in Citation 1, Item 1.
ORDER

1. Citation 1, Item 1, alleging a violation of Section 5(a)(1), is VACATED.

                                                  /s/
                                                Michael H. Schoenfeld
                                                Judge, OSHRC
   

Dated: April 19, 2004

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