Standard Concrete Products, Inc.

Plain-English summary

Standard Concrete loaded an 86-ton precast bridge girder onto a barge when a timber supporting its pedestal failed, causing the girder to crack and strike an employee who died from his injuries. The judge held that the longshoring standard applied because the girder had already been landed on the barge when the dunnage failed, even though shore-based cranes performed the transfer. She found the temporary surface lacked sufficient strength and exposed employees, but vacated the item because the Secretary did not prove Standard should have discovered the hidden defect. The dunnage had been configured by the bridge contractor under a naval architect's plan, the pedestal obstructed the timber, and requiring disassembly for inspection went beyond reasonable diligence. A separate tank-drainage item resolved before hearing was affirmed as other-than-serious with a $2,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.106(b)(2)(vii)(A) and 1918.32(a)
• Outcome: The dunnage item was vacated for lack of employer knowledge, while the settled tank-drainage item was affirmed with a $2,500 penalty.
• Key point: A defective temporary surface does not establish liability without proof that the employer could reasonably have discovered the defect.

Full text (OSHRC public release)

                                           United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 07-1958
Standard Concrete Products,
Respondent.

Appearances:
Christopher D. Helms, Esq., Office of the Solicitor, U. S. Department of Labor,, Atlanta, Geo rgia
For Com plainant

      Kirk C. Shaw, Esq., Armbrecht Jackson, LLP,Mobile, Alabama
      For Respond ent

Before: Administrative Law Judge Nancy J. Spies

                                      DECISION AND ORDER

      Standard ConcreteProducts,Inc. (Standard), manufactures precast concrete girders and piling

for bridges, docks, and factories with heavy loading requirements. On June 14, 2007, Standard
employee Treveor Holcomb was killed when he was struck by a breaking girder loaded on a barge
docked next to Standard’s Theodore, Alabama, facility. The Occupational Safety and Health
Administration (OSHA) assigned compliance officer Melissa Bice to inspect the fatality. As a result
of OSHA’s inspection, the Secretary issued a citation to Standard on December 7, 2007, alleging
violations of two standards of the Occupational Safety and Health Act of 1970 (Act).
Item 1 alleged a serious violation of § 1910.106(b)(2)(vii)(A) for failing to provide adequate
drainage or dikes for areas surrounding tanks containing flammable or combustible liquids. The
Secretary proposed a penalty of $2,500.00 for this item. Prior to the hearing, the parties resolved
item 1 by agreeing the Secretary would reclassify the item and assess the full penalty.
The only item at issue here is item 2, which alleges a serious violation of § 1918.32(a), for
failing to ensure the temporary surface on which Standard’s girders were placed was sufficient in
size and strength to permit Standard’s employees to work safely. The Secretary originally proposed
a penalty of $7,000.00 for this item. Upon review, the Secretary realized she had incorrectly
calculated one of the factors used to determine the penalty. In her post-hearing brief, the Secretary
changes the proposed penalty to $6,300.00.
The undersigned heard this case on April 8 and 9, 2008, in Mobile, Alabama. The parties
have filed post-hearing briefs. Standard argues the Secretary incorrectly cited § 1918.32(a), which
is part of the longshoring standards and is inapplicable to the cited conditions. Standard contends
the applicable standard is found in part 1917, which addresses marine terminals.1 Standard also
argues it had no actual or constructive knowledge the temporary surface on which it loaded girders
was deficient in strength.
Based upon the record, the undersigned finds § 1918.32(a) does apply to the cited conditions,
but Standard had no actual or constructive knowledge of the hazardous conditions. Item 2 is vacated.
Facts
On August 29, 2005, Hurricane Katrina destroyed the Biloxi Bay Bridge, which carried U. S.
Route 90 between Biloxi and Ocean Springs, Mississippi. Four major construction companies
(Massman Construction Company, Kewait Southern, Trailer Brothers, Inc., and Parsons
Transportation Group, Inc.) formed a joint venture called GC Constructors (GCC) to build a new
bridge, now completed. The new bridge accommodates a six-lane highway plus pedestrian and
biking paths, and was originally budgeted at more than a third of a billion dollars. It opened with
great fanfare on November 1, 2007 (Tr. 19).
Standard operates four plants located in Atlanta, Georgia; Savannah, Georgia; Tampa,
Florida; and Theodore, Alabama,2 and employs more than 600 workers. In 2006, GCC issued a
purchase order to Standard for more than 500 prestressed concrete girders of varying lengths for use

1
At the he aring, the undersigned granted Standard’s motion for leave to am end answer, allowing the co mpa ny to
add a fourth affirmative defense alleging § 1918.32(a) is not applicable to the cited conditions. The Secretary argued
she was prejudiced by the last minute filing of this motion (it was filed on Friday, April 4, but not seen by the
Secretary until April 6, two days before the hearing). The undersigned left the record open for 20 days after the
hearing to allow the Secretary to further respond or move to submit information related to this defense. The
Secretary filed a response in opposition to Standard’s motion on April 29, 2008. Standard filed a reply on May 7,
2008. In an order closing the record, the undersigned reiterated Standard’s original motion was granted.
App licability of the cited standard is not actually an affirmative defense but a part of the Se cretary’s prim a facie
case.

2
At the hearing and in the briefs, the location of Standard’s Alabama facility was sometimes stated as Mobile,
Alab ama. The odo re, Alabam a, is located a short distance fro m M obile. The citation alleges the fatality occurred in
Theod ore, A labam a.

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in the bridge construction. Standard manufactured the girders at its plants in Tampa and Theodore,
then loaded them on barges to be transported to the worksite in Biloxi (Tr. 208, 210, 218). GCC
owned the tug and the six barges used to transport the girders from Theodore, plus the tie-downs and
“dunnage” used on the barges.
Dunnage refers to the steel I-beam pedestals (also referred to as cradles) specifically placed
to hold the girders and to the wooden “mats” on which the pedestals are placed. GCC workers
created each pedestal by welding an I-beam across two supporting I-beams. Each I-beam is
approximately 14 inches wide by 14 inches high. The finished steel pedestal is approximately 3 feet
wide and 3½ feet long and is attached to the wooden barge mat (Tr. 232). The pedestals each weigh
several hundred pounds and cannot be lifted manually; a crane or forklift was used to move the
pedestal (Tr. 106, 111, 232).
The wooden mat which supports the pedestals, and eventually the girders, is comprised of
individual mats. Each individual mat is made up of a series of parallel oak timbers. The timbers are
each approximately 12 inches high by 12 inches wide and are 5 feet long, laid side-by-side and
secured together by a long metal rods run through the timbers and tightened at the ends. Because
the mats are too heavy to lift manually, two notches or openings are cut in the timber mats to expose
part of the metal rods which the crane uses to lift the mats. The full dunnage mat may include a
number of the individual mats of different sizes and configurations (Exh. C-4, C-5; Tr. 32, 49, 210,
224-225).
Before the barges left for Standard’s facility, GCC workers positioned the dunnage on the
barge deck in accordance with a plan designed by a naval architect. The number of barge trips varied
from two to five per week. The number and size of the girders transported on each barge trip also
varied, so GCC rearranged the dunnage from trip to trip. GCC furnished Standard with a loading
diagram for the girders provided by a naval architect for each load (Tr. 122, 211, 224).
When a barge arrived at Standard’s facility, it docked in an adjacent boat slip. Standard used
two shuttle lift cranes to move each girder from the land to the barge. The support legs of each crane
sit on opposite sides of the shore with overhead beams spanning the boat slip. Each crane connected
two shackles to one end of a girder being moved. The two cranes lifted the girder in tandem,
attached by a total of four shackles, and moved it to its assigned location on the dunnage. Standard

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workers present for this procedure included two crane operators and a crane foreman, three workers
on the barge, and two riggers on the side (Tr. 234-235). The cranes landed the girder on the dunnage
so that each end of a girder was supported by a separate pedestal (and separate portion of the
underlaid mat) (Tr. 99). It took approximately one hour to transfer one girder (Tr. 241).
On June 14, 2007, Standard was landing its girders on a 195 foot long and 35 foot wide MC
904 barge. The barge had arrived earlier that day, between 10:00 and 11:00 a. m. As usual, the
dunnage was already in place on the barge. The loading diagram called for five girders to be landed
on the barge (Exh. R-10; Tr. 116, 249, 251). The girders were 78 inch BT prestressed concrete.
They were T-shaped at one end and bulb shaped at the other (Tr. 172, 208). Each girder weighed
approximately 86 tons and was approximately147 feet long (Tr. 98, 112).
Standard landed three girders without incident. It landed the fourth girder, and Standard’s
riggers began to unshackle the crane lines. The riggers and crane foreman heard a cracking noise.
The timber onto which the pedestal support and one end of the now-landed girder had failed.
Standard crane foreman Henry Jackson instructed the riggers to reconnect the shackles to the girder.
While they were doing so, the concrete girder began to tilt. The pre-stressed girder cracked and
swung outward. Rigger Jackie Bridge, who was positioned at the west end of the girder, jumped to
the next girder. Treveor Holcomb, positioned at the east end of the girder, also attempted to jump
to the next girder, but he fell and was struck and pinned by the broken girder. Holcomb died from
his injuries (Tr. 37, 55, 71, 93, 96).
At approximately 8:00 that night, compliance officer Melissa Bice received word she was
to investigate the fatality. She arrived at the Theodore facility at approximately 9:00 p.m. and took
written statements from several employees. Bice was unable to take photographs of the barge due
to darkness. She did not board the barge (Tr. 27-28, 34).
Bice returned the next day accompanied by OSHA safety engineer Brian Smith. The
compliance officers took photographs of the barge from the shore, but did not board the barge. They
took additional employee statements (Tr. 36, 40).
On June 20, 2007, six days after the fatality, Bice made a third visit to the facility, this time
accompanied by OSHA assistant area director Robert Vazzi. On this day, Bice and Vazzi boarded
the barge. The broken girder had been removed. Standard had removed the pedestal from the piece

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of dunnage containing the cracked timber, after first outlining the feet of the pedestal with orange
paint. Bice and Vazzi examined the dunnage and took additional photographs (Tr. 40-41, 84, 244).
On December 7, 2007, the Secretary issued the citation to Standard that gave rise to this case.
The Citation
The Secretary has the burden of proving the violation by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard,
the Secretary has the burden of proving: (a) the applicability of the cited standard,
(b) the employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or constructive knowledge of
the violation (i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Item 2: Alleged Serious Violation of § 1918.32(a)
The Secretary alleges Standard committed a serious violation of § 1918.32(a), which
provides:

   Temporary surfaces on which loads are to be landed shall be of sufficient size and
   strength to permit employees to work safely.

                             Applicability of Cited Standard
   The cited standard appears in part 1918, “Safety and Health Regulations for Longshoring,”

of OSHA’s regulations. Section 1918.1(a) addresses the “scope and application” of the part
(emphasis added):
The regulations of this part apply to longshoring operations and related employments
aboard vessels. All cargo transfer accomplished with the use of shore-based material
handling devices is covered by part 1917 of this chapter.

   Part 1917 applies to “Marine Terminals.” Its “scope and applicability,” as addressed in

§ 1917.1(a), provides:
The regulations of this part apply to employment within a marine terminal as defined
in § 1917.2, including the loading, unloading, movement or other handling of cargo,
ship’s stores or gear within the terminal or into or out of any land carrier, holding or
consolidation area, any other activity within and associated with the overall operation
and functions of the terminal, such as the use and routine maintenance of facilities
and equipment. All cargo transfer accomplished with the use of shore-based material
handling devices shall be regulated by this part.

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Standard argues the plain meaning of §§ 1917.1(a) and 1918.1(a) dictates that part 1917
applies in this case because Standard’s cranes are indisputably land-based. Under Standard’s
interpretation, the location of the “material handling device” is dispositive. If cargo is moved with
a shore-based crane, part 1917 applies. If cargo is moved with a vessel-based crane, part 1918
applies. A review of the history of parts 1917 and 1918 demonstrates Standard’s interpretation is
incorrect.
Prior to 1983, part 1918 covered most aspects of maritime cargo handling, whether it was
shore based or vessel based. The preamble to the final rule states, “On July 5, 1983, OSHA
published its final rule for Marine Terminals (48 FR 30886) (Ex. 1-101). OSHA issued the Marine
Terminals rule to address the shoreside segment of marine cargo handling operations.” (62 FR
40141). On January 21, 1998, OSHA’s rewrite of the Longshoring and Marine Terminals parts
became effective. OSHA made a substantive change to part 1917, clarifying the scope and
applicability of the Marine Terminal standards by eliminating a geographical test in favor of a
functional test. In the Summary and Explanation of Final Rule, OSHA states (Id.):
The Marine Terminal Standard (part 1917) covers all shoreside activities taking place
within a marine terminal (48 FR 30891) except those that are specifically exempted
in 1917.1(a)(1) and 1917.2(u). It is OSHA’s intent that the marine cargo handling
standards (part 1917 for shoreside and part 1918 for shipboard) apply to all functions
that are associated with the movement of cargo.

    The preamble explicitly states the longshoring regulations found in part 1918 “apply from

the foot of the gangway up to the vessel and address all activities related to cargo handling aboard
the vessel.” (62 FR 40147). OSHA reiterated this application in a Standard Interpretation issued on
April 11, 2000, in which OSHA directorate of enforcement programs Richard Fairfax states, “[T]he
longshoring regulations found in 29 C. F. R. Part 1918 are the appropriate regulations for employee
cargo handling activities occurring on vessels or barges docked at marine terminals” (Exh. R-2, p.1).
The final sentences of §§ 1917.1(a) and 1918.1(a) refer specifically to “cargo transfer,” and
apply only when cargo is being transferred. In its brief, Standard argues the use of the past tense in
“accomplished” supports its position that once cargo has been transferred by use of a shore-based
crane, it is always subject to the regulations found in part 1917 (Standard’s brief, p. 12; emphasis
in original):

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“Accomplished” implies no temporal requirement as would, say, the words “being
accomplished” or “having been accomplished.” . . . Section 1918.1(a) uses the past
tense verb, “accomplished,” which encompasses activity before, during, and after the
completion of landing, to exclude from its coverage those cargo transfers made by
shore-based material handling devices.

    Under Standard’s interpretation, if a shore-base crane was used to transfer cargo to a vessel,

then part 1917 would always apply to that cargo. Even if the transfer had occurred hours before, or
the previous night, the regulations in part 1917 would apply. This interpretation runs counter to that
of the preamble, which states part 1918 addresses “all activities related to cargo handling aboard the
vessel.” While cargo is actually being transferred, the location of the material handling device
determines whether the marine terminal or the longshoring standards apply. Once the cargo transfer
is complete, the location of the material handling device is immaterial; it is the location of the cargo
that determines whether part 1917 or part 1918 applies.
In the instant case, the fourth girder had been landed and was being unshackled when the
dunnage failed. Standard foreman Jackson and Standard crane operator James Wallace both testified
the girder was landed at the time of the accident (Tr. 96, 132). The hazard was created by the rotten
dunnage; it had nothing to do with the transfer of the load.
The transfer of the girder had been completed and the girder was now on the barge.
Accordingly, the longshoring standards in part 1918 apply to the cited conditions. The Secretary
correctly cited the applicable standard, § 1918.32(a).
Noncompliance with Terms of the Standard
Standard does not dispute the portion of the dunnage lacked sufficient strength to permit
employees to work safely. It concedes “that the piece of dunnage in question did not support the
weight of the concrete girder” (Exh. C-11, p. 5, response to request no. 9) and “the piece of dunnage
supporting one leg of the pedestal holding the girder in question failed, resulting in the girder tilting
to the side and breaking” (Exh. C-11, p. 7, response to request no. 13).
Bice observed deep cracks in the timbers of the failed dunnage. The wood of the failed
timber was soft enough for her to push a ballpoint pen into it. The timber on which one of the
pedestal feet was located was compressed from 12 inches to 11 inches (Exhs. C-6, C-8, C-9; Tr. 50­
51, 86, 88). Vazzi testified regarding the failed timber (Tr. 155): “It was soft to the touch, it was wet,

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there were loose fragments of wood. It basically–it would give to my touch. If I put pressure on it,
it would give slightly.” Foreman Jackson conceded the timber was “rotted” (Tr. 86, 105).
The configuration of the portion of the failed mat on which the pedestal and girder rested
exacerbated the hazardous condition created by the rotten timber(s). With the exception of the
pedestal on the failed mat, all of the other pedestals the compliance officers observed were placed
so that the pedestal base was perpendicular to the length of the mat timbers. With two supports
resting crosswise to the timbers, the weight of the pedestal (and later, the girder) would be distributed
across three timbers (Exh. C-10; Tr. 159-160; 191).
As GCC configured the wooden mats on the barge at issue, an approximate 5 foot by 5 foot
section of mat needed to be filled. Rather than place a mat with timbers running perpendicular to
the pedestal base, as were the timbers of the rest of the individual mats, GCC fitted in a 5 foot by 5
foot mat turned so the timbers ran parallel with the pedestal base. At least one of the timbers in this
5 foot by 5 foot mat was rotted. The pedestal on the failed timber of the mat was placed so that each
support sat completely lengthwise on one timber. The rotten timber supported half the weight of one
end of the 86-ton girder, rather than sharing the load with its adjacent timbers. In addition, the rotted
timber was placed next to a cut out for the crane pick-up. Had this piece of dunnage been configured
like those in the other individual mats, the redistribution of the weight of the girder may have
forestalled the collapse of the rotten timber.
The record establishes, as Standard concedes, the terms of § 1918.32(a) were not met.
Employee Exposure
A total of eight employees were present a the time of the accident (Tr. 234-235). Their work
duties required riggers Jackie Bridges and Treveor Holcomb to come in direct contact with the
girders as they rested on the dunnage. Bridges had to leap out of the way to escape being crushed
by the fourth girder when the dunnage failed. Holcomb was not so fortunate.
Standard’s employees were exposed to death or serious physical injury caused by the faulty
dunnage. The Secretary has established employee exposure.

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Knowledge
The Secretary does not contend Standard had actual knowledge of the rotten timber. She
does, however, contend Standard should have known of the hazardous condition through the exercise
of reasonable diligence. The Secretary argues Standard had constructive knowledge for the
following reasons:
(1) The piece of dunnage was in plain view. At the time the barge docked, there were no
girders on the pedestals to obstruct the view. The barge was docked at least two hours before
Standard began loading the girders, affording Standard enough time to inspect the dunnage.
Standard had at least eight employees present during the loading, any one of which could
have inspected the dunnage.

   (2) Nothing prevented Standard from inspecting the dunnage. Even though Standard asserts
   the condition of the dunnage was GCC’s responsibility, Standard was in a position to inspect
   it.

   (3) Standard could have removed the pedestals to inspect the timbers underneath them.

   (4) Even without removing the pedestals, Standard could have seen visible damage to the
   timbers. Bice and Vazzi both commented the wood was wet and was soft to the touch.

   The Secretary overemphasizes Standard’s opportunities for discovering defects in the

dunnage. GCC configured the dunnage on the barges in accordance with a navel architect’s plan
before the barges reached Standard’s facility. GCC placed the pedestals on the timbers as specified
by the navel architect. Standard was not provided with these plans, but was given plans for how to
load the girders.
Standard has an obligation to inspect the dunnage for flaws which could affect the safety of
its employees. Because some reliance is properly placed on GCC’s asserted expertise in the design
of the dunnage, Standard’s obligation is tempered by what it could reasonably be expected to
ascertain. Crane foreman Jackson had the authority to refuse to load the girders if he determined a
hazard existed. He visually inspected the mat from his position on shore, 14 to 15 feet away.
Nothing appeared to him to be rotted or problematic with the subject dunnage (Tr. 97, 104, 108).
Even if the timber was unsuitable for the mat, there is no evidence a close visual inspection of the
dunnage would have revealed it. Vazzi testified, “[I]f the appearance of the wood indicates that there
are stress fractures or there are fractures in the wood, I said that they should probably reinspect that

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or inspect that crane [mat] a little more closely” (Tr. 198). The pedestal obstructed a clear view of
the timber, and the fact the timber was defective was not in plain view even before the girders were
loaded. Nor is there evidence that before the failure inspecting the12-inch ends of the timbers could
demonstrate a difference between the rotted timber and others which were sound.
The Secretary’s suggestion that Standard use its cranes to remove the pedestals in order to
inspect the timbers underneath is not realistic. It goes beyond the terms of § 1918.32(a) to require
an employer to disassemble a temporary surface that has been configured according to architectural
plans in order to inspect its individual components.
There is no record of what the dunnage looked like prior to the accident. Bice and Vazzi
inspected the dunnage six days after the accident occurred. They testified the wood was wet and
cracks were obvious, but since employees present during the accident testified they heard a cracking
noise, it is reasonable to assume some, if not all, of the cracks may have appeared at that time. Bice
and Vazzi observed what the dunnage looked like after the 86-ton girder was placed on it. The
evidence is unclear whether visible fractures in the dunnage existed prior to the accident.
The dunnage mats had openings between timbers used as attachment points for the crane
lines when GCC needed to lift the dunnage mats. GCC assembled the dunnage mats, moved them
by crane, set them on the barges, and then placed the pedestals on top of them. GCC employees
physically handled the timbers used to assemble the dunnage. GCC was in the best position to
discover any deficiencies in the timbers of the mats or in their configuration in the individual mats.
Once the barges arrived at Standard’s facility, it was much more difficult to detect any such
deficiencies.
The Secretary did not establish that Standard failed to exercise reasonable diligence or that
it should have known the dunnage lacked sufficient strength to permit its employees to work safely.
Item 2 is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.

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ORDER
Based upon the foregoing decision, it is ORDERED that:
Item 1 of the citation, alleging a violation of § 1910.106(b)(2)(vii)(A), is affirmed as other
than serious, and a penalty of $2,500.00 is assessed; and
Item 2 of the citation, alleging a violation of § 1918.32(a), is vacated, and no penalty is
assessed.

                                                  /s/
                                                  NANCY J. SPIES
                                                  Judge

Dated: November 4, 2008
Atlanta, Georgia

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