North American Crane & Rigging LLC

Read the official release (oshrc.gov)

Plain-English summary

North American Crane & Rigging used a lattice-boom crane and an assist crane while dismantling a crane at a Massachusetts construction site. OSHA alleged that the company failed to mark the boundaries of the cranes' swing-radius hazard areas. The judge found no swing-radius hazard at the lattice-boom crane because its counterweights had been removed and its rotating superstructure did not extend beyond the tracks. The assist crane's counterweights extended beyond ropes hung between its outriggers, but the work plan kept the counterweights on the right while employees worked on the left. The left side became hazardous only when the compliance officer directed the operator to rotate the counterweights there for inspection photographs, and no employee was exposed then. OSHA also failed to show that employees had actual or reasonably predictable access to the counterweight hazard on the assist crane's right side. Both alleged instances were vacated, and the proposed $6,073 penalty was not assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1424(a)(2)(ii).
• Outcome: Both alleged swing-radius instances vacated; no penalty assessed.
• Key point: The Secretary must prove that a rotating superstructure creates a reasonably foreseeable hazard in an accessible area and that employee access to the zone of danger is actual or reasonably predictable.

Full text (OSHRC public release)


North American Crane & Rigging LLC 20-1089

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant

v.

OSHRC Docket No. 20-1089

North American Crane & Rigging LLC ,

Respondent.

Appearances :

Emily V. Wilkinson, Esq., and Nathan C. Henderson, Esq. U.S. Department of Labor, Office of the Solicitor, Boston, MA, for Complainant

Michael Rubin,
Esq.
and Stefan A.
Borovina , Esq., GOLDBERG SEGALLA, LLP, for Respondent

JUDGE: Administrative Law Judge Sharon D. Calhoun

DECISION AND ORDER

North American Crane & Rigging, LLC,
(NACR) contests a one-item Citation and Notification of Penalty issued by the Secretary on June 18, 2020, for allegedly failing to adequately protect employees from the swing radii of two cranes at a construction site in Plainville, Massachusetts. The Citation resulted from a programmed inspection at a multi-employer worksite conducted
on February 27, 2020,
by a Compliance Safety and Health Officer (CSHO) for the Occupational Safety and Health Administration .

The Citation alleges NACR violated, in two instances, 29 C.F.R. § 1926.1424(a)(2)(ii)
by failing to prevent exposure of its employees to swing radius hazards
because
it did not adequately mark the
boundaries of the hazardous areas. The Secretary proposes a penalty of $6073 for this item.

NACR contest s
the
Citation , arguing the Secretary failed to prove his case . In its
Amended Answer
filed on February 25,
2021, NACR
also
assert s
the affirmative defenses of greater hazard and
infeasibility of complianc e
with the cited standard.

The Court held a
hearing via videoconference in this matter on April 20 and 21, 2021. The parties have filed post-hearing briefs.
For the reasons that
follow, the Court finds
the
Secretary failed to establish a violation of the cited standard for either instance of the Citation.
Accordingly,
the Court
VACATES
Item 1 of the Citation .

JURISDICTION AND COVERAGE

NACR
timely contested the Citation .
The parties agree the Commission has jurisdiction over this action and
NACR
is a covered employer under the Act ( Complaint, ¶¶
I &
I II;
Answer,
¶¶ I & II I; Tr. 15-16 ). Based on the agreements and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Occupational and Safety Act of 1970, 29 U.S.C. §§ 651-678 (Act) ,
and
NACR i s a covered employer under § 3(5) of the Act .

STIPULATIONS

The parties stipulate the following facts:

A.
General Background

1. At all relevant times, and specifically on 02/27/2020, Respondent was a limited liability company registered in Massachusetts, which was engaged in construction-related activities, to include specifically the set-up, operation, and disassembly of cranes in connection with construction projects.

2. On 02/27/2020, Respondent was engaged in crane disassembly work at the job site located at 5 Commerce Boulevard, Plainville, MA 02762 (the “Job Site”).

3. On 02/27/2020, there were two cranes being operated by Respondent’s employees at the Job Site: (1) a Manitowoc M250 crane (the “Lattice Boom Crane”); and (2) a Grove TMS760E crane (the “Assist Crane”).

4. Respondent did not request a variance from the requirements of 29 C.F.R. § 1926.1424(a)(2)(ii) before beginning work at the Job Site on 02/27/2020.

5. Before work began at the Job Site on 02/27/2020, Respondent conducted a job hazard analysis for the disassembly of the Lattice Boom Crane.

6. On 02/27/2020, Respondent’s managers and employees present at the Job Site included: Avelino Mendonca (foreman); Gregory Albanese (crane operator); William Murphy (crane operator);
Narith
Pich
(oiler); Kevin Doughty; and Nicholas Amore.

B.
The Lattice Boom Crane

7. Respondent was disassembling the Lattice Boom Crane at the Job Site on 02/27/2020.

8. On 02/27/2020, Mr. Albanese worked as the operator of the Lattice Boom Crane.

9. On 02/27/2020, Mr.
Pich
worked as the oiler of the Lattice Boom Crane.

10. At various times on 02/27/2020, the superstructure of the Lattice Boom Crane rotated while the crane was being operated during the disassembly process.

11. On 02/27/2020, no barriers were in place to mark the boundaries of the swing radius of the Lattice Boom Crane’s rotating superstructure.

12. On 02/27/2020, the Lattice Boom Crane’s operator, Mr. Albanese, did not erect any barriers to mark the boundaries of the swing radius of the Lattice Boom Crane’s rotating superstructure.

C.
The Assist Crane

13. On 02/27/2020, Respondent was operating the Assist Crane at the Job Site to disassemble the Lattice Boom Crane and to move disassembled lattice boom pieces onto trucks.

14. On 02/27/2020, Mr. Murphy worked as the operator of the Assist Crane.

15. At various times on 02/27/2020, the superstructure of the Assist Crane, including the counterweights, rotated while the crane was being operated.

16. On 02/27/2020, the outriggers of the Assist Crane were fully extended.

17. At the time when
t he CSHO
conducted his initial walkaround on the Job Site on 02/27/2020, a rope with a sign reading “DANGER—SWING AREA—RESTRICTED” was hung between one set of the Assist Crane’s outriggers .

18. At the time when
t he CSHO
conducted his initial walkaround on the Job Site on 02/27/2020, a rope was hung between the other set of the Assist Crane’s outriggers .   

19.
Later on
02/27/2020, Respondent added caution tape that extended from both sets of the Assist Crane’s outriggers.

D.
The Serious Citation and Proposed Penalty   

20. There is a substantial probability that death or serious physical harm could have resulted if an employee had been struck by a crane’s rotating superstructure or pinched between the superstructure and another part of the equipment.   

21. In assessing the appropriate penalty, OSHA alleges that it considered the gravity of the violation, the size of Respondent’s business, Respondent’s good faith, and Respondent’s history of violations.

( Joint Prehearing Statement,
pp. 3-5)

WITNESS TESTIMONY

Four witnesses testified at the hearing:
the
CSHO ,
NACR CEO
Louis Izzo,
NACR foreman
Avelino Mendonca ,
and
NACR crane operator
William Murphy . Their testimony
is summarized below.

The
CSHO

On February 27, 2020,
t he CSHO
began a programmed inspection
at a multi-employer
construction
work site in Plainville, Massachusetts .
He took
photographs
and video
fro m outside the construction site before he entered the site and presented his credentials
(Tr. 89) .
After meeting with the general contractor ,
t he CSHO
held an opening conference
with
the
subcontractors working on the site, including NACR
representatives.
That day,
NACR
employees
were
using a yellow Grove TMS760E crane
(the yellow crane)
to disassemble a red Manitowoc M250 lattice boom crane
(the red crane)
when the CSHO arrived
at the worksite
(Tr. 36-38).
After the opening conference,
t he CSHO
conducted a walk-through of the worksite
and spoke with
NACR foreman Avelino Mendonca
(Tr. 38-39).

The Red Crane

By the time
t he CSHO
saw
the red crane,
NACR employees had partially disassembled it.
They
were working near the crane.
The CSHO
observed
the red crane
rotating
“ at one point” and
saw the “swing radius wasn’t protected.” (Tr. 42)
He
videoed
the red crane
rotating
approximately a quarter turn ( Exh .
J-20).
The CSHO
described the video as
showing “the crane’s superstructure, with the counterweights rotating, and rotating towards
the employees near the end of the crawler track.” (Tr. 43) He stated the NACR employe es were “pretty close , but I couldn’t put a number on it.” (Tr. 43)
The CSHO
videoed
the event because he believed he was “documenting a hazard ” of the “unprotected swing radiu s,”
because “the rotating superstructure and the counterweights could strike somebody, or it could get them caught between, in this case, the crawler tracks and the superstructure.” (Tr. 44)

The CSHO
did not take measurements of the red crane to determine
whether its superstructure extended over the
body of vehicle, creating a swing radius hazard
(Tr. 91 , 99 ) .
He conceded on cross-examination that
at the time of his inspection ,
the counter weights had been removed from the red crane and
they
could not present a st ruck-by hazard to employees (Tr. 9 3 -9 5 , 97 ).
He stated
the superstructure of the red crane extended past the crane’s track
based on
the photos he took and the
specifications he reviewed
(Tr. 99 , 131 ).
Exhibit J-32 is a photograph
taken by the CSHO
of
a specification page
from the manual for the red crane . No
measurements appear on the
page ( Tr. 101).
He could not say whether the superstructure of the crane would extend past the end of the
crane’s
crawler tracks
or the back of the
crane (Tr. 110).

The Yellow Crane

Unlike its treatment of the red crane, NACR
had attempted to
mark the
area of the swing radius of the yellow crane, but
t he CSHO
determined it
was inadequately protected
on both sides
of the crane and truck
(Tr. 47) .
NACR had fully extended
two outriggers on the left side of the yellow crane
and
had strung a chain between the outriggers . Attached to the chain was a sign
stating,

DANGER

SWING

AREA

RESTRICTED

( Exh . J-7) .

On the right side of the vehicle, NACR had
fully
extended the outriggers and had strung a
rope
between them to mark the swing radius .
No warning sign was attached to the
rope.
T he area to the right of the vehicle was a traffic lane for the construction site, and it was hemmed in by a
sloped dirt hill
(or berm)
( Exh . J-16).
The CSHO
testified no NACR
representative told him that marking the swing radius on the right side of the yellow crane would be unsafe , infeasible, or impossible during the inspection (Tr. 77).

Exhibits J-5 and J-6 are photographs
showing the
counterweights of the yellow crane extending beyond one of the
two
fully extended
outriggers
on the left side
used as
connection point s
for the chain
meant to demarcate the swing radius
(Tr.
50 -51 ) .
The CSHO
testified the photographs
show
that “the counterweights extended beyond the limited protection that was provided by that chain that was strung between the
outriggers
on each side of the crane , so the counterweight extended past that.” (Tr. 47)
He
state d
the
space
beyond the outriggers and attached chain “was also a hazard in that anybody working in that area
could also get struck by the counterweight, or . . . conceivably get cau ght between the counterweights and chassis of the truck.” (Tr. 47)
He also looked at
NACR’s copy of the manual for the yellow crane, which
contains a specifications page showing a diagram
and dimensions of the crane (Tr. 48).

The CSHO
suggested NACR could have
extended the
boundary with “some stanchions and rope . . . so that somebody couldn’t get into that area where they could get struck .” (Tr. 51) He stated the same extension could have been
done on the other side of the yellow crane “so somebody
can’t get in there and get caught between those counterweights and the truck chassis or just struck by the counterweights .” (Tr. 52)

As
evidence of employee exposure to the hazard of being struck by the counterweights,
t he CSHO
stated he had
observed
a bag
placed on the chassis
on the left side
of the crane
(Tr. 59 , 79 ). The bag is visible in Exhibit s
J-5 and
J-7.

The CSHO
stated
that
counterw eights are located on the side
of the crane opposite the boom to
prevent
it from tipping over.
If the boom
rotates in one direction , the counterweights
rotate in the opposite direction
(Tr. 114- 15).
He agreed that if the NACR crane operator was not “hoisting from the right side of the crane ;
you wouldn’t expect that the counterweights would be on the other side of the crane (Tr. 117).
Exhibit J-16 is a photograph showing
a narrow area of
compacted dirt
to the right of the crane ,
bo rdered
by
a sloped dirt hill.
When asked if he agreed that the counterweights would never be
on the
left
side of the crane if
the boom
were
hoisting on the right side,
t he CSHO
responded that he “could imagine a scenario
. . . where
they might want to rotate the crane
in order to
get the counterweights on the other side. So, for example, if that area was relatively small, that flat compacted area , they might want to move the counterweight out of the way so that a vehicle could pass more easily .” (Tr. 118)
He
stated he could not recall if
he observed or heard
of this scenario
actually occurring
during his inspection (Tr. 118).

The CSHO
denied that he had instructed the operator of the yellow crane to
rotate the crane
so that the counterweights were located on the left side, as shown in Exhibits J- 5, J-6, and J-7.
“I would not instruct somebody to rotate the superstructure in order for me to take a photograph or a measurement.” (Tr. 120)
He stated it was possible he asked the operator to
exit the cab of the vehicle : “ I didn’t want to expose myself to a hazard , obviously, so I wanted to make sure that the thing wasn’t going to be operating while I’m trying to
take a measurement.” (Tr. 60-61) He
only measured the
vertical
distance
from the bottom of the counterweight to the ground; he
did
not
measure
the
horizontal
extension of the counterweight
beyond the outriggers . He stated he could determine that measurement “[f]rom looking at the crane specifications.” (Tr. 61)

Exhibit J-31 is a copy of the
Product Guide
for the yellow crane.
Page 7 of the
document shows a diagram with the dimensions of the crane.
The CSHO
testified the diagram
indicates the
swing radius of the superstructure
with the
counterweights is
13 feet, 5 .5 inches ,
from the center of the vehicle . The
fully extended
outriggers are 10 feet
from the center of the vehicle . Therefore, when
both outriggers are fully extended on
either
side of the crane, the counterweights will extend
3 feet, 5.5 inches , beyond the
outriggers
( Exh . J-31 , Bates p. 75; Tr.
61-3).
The distanc e from the ground to the bottom of the counterweight was 5 feet, 7 inches ( Exhs . J-11, J-12,
J-13;
Tr. 64 -65 ) .

NACR was using the yellow crane to move sections of the boom of the red crane onto a truck bed (Tr. 67).
NACR employees were in the vicinity of both cranes. “They had to rig the pieces
so they could be picked up by the crane and then they had one employee . . . guiding the sections of the boom onto the truck .” (Tr. 69)
The CSHO
observed NACR employees
standing and walking on the side of the yellow crane where the counterweights were located . When asked the nearest distance the employees were to the counterweights,
t he CSHO
responded, “Pretty close.” (Tr. 69)
Exhibit J-25 is
a still photograph from a video taken by the CSHO. It shows
three employees in yellow vests walking near the cab of the yellow crane
on its left side .
The operator of the crane can be seen in the cab.

The CSHO
stated that NACR extended the
swing radius barriers for the cranes
beyond the outriggers while he was onsite , using red caution tape . The areas protected were only bet ween the outriggers on each side—the
front and back ends of the chassis were still un protected
( Exh . J-10 ;
Tr. 73).

NACR had completed a
written job hazard analysis (JHA) for the construction site
that identified
the cranes’ swing radii as hazards (Tr. 78-79).

Louis Izzo

Louis Izzo
has been the CEO of NACR since 2015 . He is responsible for “ the general day-to-day management of the operations, sales, and financials of the company.” (Tr. 136)
Izzo is also a licensed crane operator (Tr. 271).
NACR employs a safety director, but
Izzo
is responsible for imposing disciplinary action on employees
for safety infractions . NACR has a
written
safety
program, provides safety training,
and
conducts field
safety
inspections
(Tr. 137-38).
NACR employees prepare Job Hazard Analyses
(JHA)
for each worksite
( Exh . J-36;
Tr. 140).
Izzo described
how NACR uses a JHA:

It's basically to analyze the type of work that's going on and then we will apply to that scope of work, everything from safety regulations to best practices to manufacturer procedures to make sure that we've identified whatever hazards might be encountered on that job, and then identify and implement the mitigations to try to prevent those.

(Tr. 142)

Izzo
and
NACR
employees in the Lift Planning Group wrote the JHA
for the work performed by NACR
at the Plainville worksite on February 27, 2020.
Izzo testified they designed the
disassembly procedure so that no lifting
would be performed on the right side of the yellow crane , as shown in
the photograph admitted as Exhibit J-16.
“ We planned that as a roadway between the crane and that berm you see on the right side of the frame, to be a roadway for our tractor trailers to get closer access to the superstructure, both the upper and lower works of the red crane. So that was the primary route for cranes to access the large red crane .”
(Tr. 296)
Izzo stated the
boundary marking
on the right side could not
be extended
farther
because
they would “ basically block the roadway. You're going to make it impossible for the traffic to get where it needs to go and complete the job they were sent there to do. ” (Tr. 304)

NACR provided the JHA to its field staff at the worksite,
including foreman A vel ino Mendonca ,
who used it as the basis for
pre-task analysis and onsite briefing of
employees involved in the
crane work
(Tr. 143 -45 ).
Izzo was not at the Plainville construction site the day of the OSHA inspection (Tr. 162).

Izzo testified he was familiar
with the red crane and
was
aware that , with the counterweights removed, the superstructure of the crane
does not extend beyond its tr acks .

It does not extend beyond the tracks .
. . .
Basically, that's from the dismantle procedure,
and also , just again, being a part of these for many times and part of being able to plan these is knowing the dimensions of these components and what goes where at what time. So, at this stage of the dismantle, the house has been dismantled to such a point where there is no external swing radius of the crane.

(Tr. 284)

Referring to Exhibit J- 32, which is a photograph of a
diagram
from the red crane’s user manual
that
the CSHO
consulted, Izzo stated,

T hat's an illustrative drawing that doesn't
actually depict
any point in the assembly or
dismantle process. That's basically an educational tool really or an orienting tool to teach you what some of the key terminology is going to be about this crane's superstructure basically as you read about those procedures in the following pages of that book .
. . .
The picture we see in J-32 never actually
happens in reality . The picture in J-32 is manipulated so that
all of
the components that you would need to know the technical names of can be highlighted on this page to basically label all of them.

(Tr. 285 -86 )

Avelino Mendonca

Avelino Mendonca has worked
as a foreman
for NACR for five years.
He is certified in rigging and signaling, and he has completed
OSHA’s 10-hour construction safety course .
He is not
licensed as
a crane operator (Tr. 175 -76 ).

On February
27, 2020, NACR’s task was to disassemble the red crane
(Tr. 180).
The operator of the red crane
crawled it to the disassembly area . “[W] hen
you crawl , the crane will be parallel with the track. It never swings . . . .
When you crawl , you keep your crane parallel with the tracks and you crawl down to where you’re going to do the disassemble .” (Tr. 213)
The crane operator
lowered the boom to the ground and NACR employees broke it down into
six
sections . The superstructure of the red crane
did not rotate during this process (Tr. 216 , 218 ).
After the NACR employees broke down the boom,
they removed the counterweights from the superstructure of the red crane.
Mendonca
confirmed
that “at no point, anytime, this red crane was in the disassembly area, did it ever rotate
with those counterweights on back.” (Tr. 225)
After the counterweights were removed, Mendonca testified,
the superstructure of the crane did not extend over the
crane’s track. “[I]t’s flush with the track .
. . .
I
mean, I
was there, I could, you
could see, you’re standing there, the rig’s standing , you could see it’s clearly flush with the track. ” (Tr. 229)

NACR
employees
had
removed
the
counterweights
of the red crane
and ta k en
apart
its
boom
sections
by the time the CSHO arrived onsite. NACR employees
were in the process of attaching the red boom sections,
one by one ,
to the
hoist
of the yellow crane . The yellow crane would
swing the
boom section s, located
towards
its left f ront ,
over
to a truck bed , located to the left of the
crane ,
and land
them ( Exh . J- 28 ; Tr. 200) .
An NACR employee would disconnect
the sections
from the yellow crane’s hoist (Tr. 181-85).
No boom sections were located on the right side of the
crane
(Tr. 253).
The counterweights of the yellow crane remained on the right side of the
crane
during the performance of the NACR
employees ’
assigned task
(Tr.
254).

Exhibit J- 6
is a photograph showing the counterweights of the yellow crane
on the left side of the
crane . The counterweights clearly extend beyond the
chain barrier set up between the outriggers. Mendonca testified the counterweights were on the
left side of the
crane
in this instance only because the CSHO instructed
NACR to rotate them to that side.

Q.: Do you recall when
[Exhibit J- 6
and other photos ]
were
taken by the inspector where they depict the counterweights over the left-sided outriggers?

Mendonca: Yeah, that's the only thing that the pictures were intended. But that was just for a picture.

Q .: Well, that was what I was going to ask.
Other than the time photos were taken with the counterweights over the left-sided outriggers, at any time on February 27, 2020, did you ever see the counterweights over the left-sided outriggers as it's depicted in J-6?

Mendonca: No.

Q .: Did you ever observe the crane hoisting anything to the right of the crane?

Mendonca: No.

Q .: And did you ever, at any time other than when these photographs were taken, such as J-6, did you see the boom over the right side of the crane?

Mendonca: No.

(Tr. 256)

Mendonca testified there was no
reason related to the work NACR was performing that day to rotate the counterweights to the left side of the
crane .

Q .: Generally speaking, how would the trucks take away the boom pieces?

Mendonca: They would back up to the side of the crane .
. . .
They'd always be on the left-hand side of the crane or sometimes in the back. But most of it was on the left-hand side of the crane.

Q .: Okay. And was there a reason for that?

Mendonca: Yes. All the work was being done on the left-hand side of the crane. There was no work being done on the right side. There was just no room over there to do anything because of the berm.

Q .: Okay. And when you
say,
"the berm," that was on the right side of the crane, is that right?

Mendonca: That's correct.

(Tr. 258)

The counterweights of the yellow crane
rotated
from the rear of the
crane
to the right of the
crane
and back as this work was performed. Mendonca stated the counterweights of the yellow crane extended beyond the outriggers
on the right side (Tr. 201 -02 ).

Mendonca completed a
JHA form
for the disassembly of the red crane on
February 27, 2020 ( Exh . J-36 ; Tr. 186 -87).
He held a safety briefing with the NACR employees and reminded them to
avoid the swing radius of the counterweights of cranes. “ [W]e
say
when a crane’s swinging, don’t be inside that area.” (Tr. 187-88)
The crane operator is responsible for
marking the swing radius of the crane with caution tape
(Tr. 188).

Mendonca
testified NACR employees added red caution tape to the outriggers to extend the
swing radius barrier “because the OSHA guy told us to put it up.” (Tr. 204)
He did not inform the CSHO that it was infeasible to
protect the swing radius of the yellow crane on the right side because the CSHO “ never asked.” (Tr. 204)

NACR employees did not set up swing radius barriers for the red crane because
“there’s no overhang swing once the counterweights come off .
. . .
Nobody put [a barrier] up because we we ren’t moving the crane. ” (Tr. 205)
Mendonca
believed the red crane did not require a swing radius barrier because “there was no swing . . . .
[T]he crane’s structure never went over the tracks or car body.
It never goes past that . Once . . .you take that counterweight off, that crane has no swing .” (Tr. 210-11)

William Murphy

William Murphy is a crane operator employed by NACR. He operated the
yellow
crane on February
27 , 2020 ,
at the Plainville construction site (Tr.
328-29 ,
332 ).
Murphy stated he hoisted loads exclusively on the
left
side of the crane that day . “I never picked up or hoisted anything from that [right ] side.” (Tr. 341)

Murphy stated he was operating the
crane when the CSHO arrived at the worksite . He testified that
when he saw the CSHO, “ I swung the crane over to the back, locked everything out and came out, and he was speaking to me. ” (Tr. 337)
Murphy was shown Exhibit
J-6, which depicts the counterweights of the yellow crane extending beyond the
safety barrier erected by NACR on left side of the crane.
NACR’s counsel asked him why the counterweights
were on that side of the crane if he ho isted boom sections from
only
th e
left
side.

Q .: Do you know how the counterweights got to be positioned over the left-sided outrigger as they're depicted in this photo?

Murphy: I believe, when the inspector came, he wanted to take some photos, so he had me swing over.

Q .:
Okay. What do you mean? When you
say,
"swing over," what do you mean?

Murphy: Swing over to the opposite side of the work area.

(Tr. 347)

Murphy stated he was not sitting in the cab of the
yellow crane at the time the CSHO took the photographs showing the counterweights on the left side (Tr.
348).

THE CITATION

Item 1 of the Citation
alleges:

28 CFR 1926.1424(a)(2)(ii):
To prevent
employees from entering hazard areas, the emplo yer
did not erect and maintain control lines, warning lines,
railings
or similar barriers to mark the boundaries of the hazard areas and/or did not train each employee to understand what these markings signify.

Location : East side of job site.

The employer did not ensure that the swing radius around cranes were adequately protected . 1

Instance
A: The swing radius around the assist crane was inadequately protected.

Instance B: The swing radius around the crane being disassembled was unprotected.

The Secretary’s Burden of Proof

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).

At lantic
Battery Co . ,
Inc.,
No. 90-1747, 1994 WL 6829 22, at *6 (OSHRC
Dec. 5, 1994) .

The Cited Standard

The cited standard,
§
1926.1424(a)(2)(ii) ,
provides:

To prevent employees from entering these hazard areas, the employer must
. . .
[e] rect
and maintain control lines, warning lines,
railings,
or similar barriers to mark the boundaries of the hazard areas. 

Exception:  When the employer can demonstrate that it is neither feasible to erect such barriers on the ground nor on the equipment, the hazard areas must be clearly marked by a combination of warning signs (such as "Danger--Swing/Crush Zone") and high visibility markings on the equipment that identify the hazard areas. In addition, the employer must train each employee to understand what these markings signify.

ANALYSIS

(1) The Cited Standard Applies

Section 1926.1424
( Work area control )
is found in
Subpart CC
( Cranes and Derricks in Construction )
of Part 1926
( Safety and Health Regulations for Construction ).
The
Scope
section of Subpart CC, § 1926. 1400(a) ,
provides the standard “applies to power-operated equipment, when used in construction, that can hoist, l ower and horizontally move a suspended load.”

There is no dispute that the red and yellow cranes at issue in this proceeding
constitute
powe r-operated equipment that
could
hoist, lower, and horizontally move suspended load s . NACR argues, however,
that the cited standard does not apply to
its
cranes
at the Plainville construction site on February 27 , 2020, because
the standard
is limited in scope to
cranes “when used in construction , ”
and the cranes were
not used to construct anything
that day .
NACR
contends,

[T]he disassembly activities conducted on site were conducted in an area
that was separate and distinct from any prior construction activities that had been performed . The area where the entire dismantling event occurred was a dedicated portion of the site .
. . .
Since the instant crane disassembly operations were not conducted
“ in ”
(but only
“ after ” ) any construction activities, the cited standard cannot apply to the underlying facts of this matter.

( NACR’s Brief , p p. 22-23)

The
Definitions
section of
Subpart CC
disproves NA CR’s argument. Section 1926.1401 provides the following definitions , indicating the
Subpart
considers
assembly and disassembly of cranes to be
construction activities :

Assembly/Disassembly  means the assembly and/or disassembly of equipment covered under this standard.
With regard to
tower cranes, "erecting and climbing" replaces the term "assembly," and "dismantling" replaces the term "disassembly." Regardless of whether the crane is initially erected to its full height or is climbed in stages, the process of increasing the height of the crane is an erection process.

Assist crane  means a crane used to assist in assembling or disassembling a crane.

Subpart CC
regard s assembly and disassembly of cranes
used on construction sites
to be part of the construction proces s. This is borne out
by
the five
standards
in
Subpart CC that
specifi cally address , in detail, the
assembly and disassembly procedures
for cranes. 2
Furthermore, NACR stipulated prior to the hearing that it was engaged in construction-related activity at the time of the OSHA inspection: “ At all relevant times, and specifically on 02/27/2020, Respondent was a limited liability company registered in Massachusetts, which was engaged in construction-related activities, to include specifically the set-up, operation, and disassembly of cranes in connection with construction projects.” ( Joint Prehearing Statement,
p. 3, ¶ 1)

The Court determines § 1926 .1424(a)(2) applies to the cited conditions. 3

(2)
Compliance with the Terms of
the Cited Standard

The cited
subparagraph
of the work area control standard , § 1926.1424(a)(2)(ii) , is intertwined with
the
sub paragraph
immediate ly
preceding it , § 1926.1424 (a)(1), and the two must be read together to
grasp
the requirements for compliance with either of them.
Each
subparagraph imposes requirements on the
Secretary and the employer, respectively, not usually found in standard s
promulgated under
§ 5(a)(2) of the Act.

Sections 1926.1424(a)(1)
and (2) , in their entirety, provide:

§
1926.1424
Work area control

(a)
Swing radius hazards .

(1)
The requirements in paragraph (a)(2) of this section apply where there are accessible areas in which the equipment ’ s rotating superstructure (whether permanently or temporarily mounted) poses a reasonably foreseeable risk of:

( i )
Striking and injuring an employee; or

(ii) Pinching/crushing an employee against another part of the equipment or another object.

(2)
To prevent employees from entering these hazard areas, the employer must:

( i ) Train each employee assigned to work on or near the equipment ( “ authorized personnel ” ) in how to recognize struck-by and pinch/crush hazard areas posed by the rotating superstructure.

(ii) Erect and maintain control lines, warning lines,
railings
or similar barriers to mark the boundaries of the hazard areas. 

Exception:  When the employer can demonstrate that it is neither feasible to erect such barriers on the ground nor on the equipment, the hazard areas must be clearly marked by a combination of warning signs (such as
“ Danger — Swing/Crush Zone ” ) and high visibility markings on the equipment that identify the hazard areas. In addition, the employer must train each employee to understand what these markings signify.

Section 1926.1424(a)(1 ) states that the requirements of the work area control standard
apply in situations
only
where a crane’s
rotating superstructure “poses
a reasonably foreseeable ris k of” injuring
an employee .
Generally, an OSHA standard presumes a  hazard  and
the Secretary is not required to establish one exists as part of his  burden   of   proof .
W hen , however,
a standard specifies it applies only when a
foreseeable
risk of injury
is present, as
does
§ 1926.1424(a)(1),
the Secretary
must establish the additional requirement
of foreseeability of risk
to employees.

Section 1926.1424(a)(2)(ii)
imposes an additional requirement on employers
who assert the
defense of infeasibility
of compliance.
Generally , to establish the infeasibility defense, an employer must establish
that :

(1) the means of compliance prescribed by the applicable standard would have been infeasible, in that (a) its implementation would have been technologically or economically infeasible or (b) necessary work operations would have been technologically or economically infeasible after its implementation, and (2) there would have been no feasible alternative means of protection.”  V.I.P. Structures, Inc. , 16 BNA OSHC 1873, 1874, 1993-95 CCH OSHD If 30,485, p. 42,109-10 (No. 91-1167, 1994).

Altor, Inc.,
No. 99-0958 , 2011 WL 33135, at *13
(OSHRC Apr. 26, 2011),
aff’d ,
498 F ed. Appx. 145 (3 rd
Cir. 2012).

The cited standard
here
specifies
that
the
alternative protective measure must
take the form of the employer
clearly marking the hazard areas “ by a combination of warning signs (such as
“ Danger — Swing/Crush Zone ” ) and high visibility markings on the equipment that identify the hazard areas. In addition, the employer must train each employee to understand what these markings signify.

Instance B: The Red Cran e

Instance
B of the Citation alleges , “The swing radius around the crane being disassembled was unprotected.”
It
is undisputed
NACR did not
mark the boundaries of the swing radius of the red crane (Tr.
42 , 204-05).
NACR does not assert the infeasibility defense for this
instance.

The Secretary
argue s
NACR admitted it violated the cited standard when it stipulated
the following:

10. At various times on 02/27/2020, the superstructure of the Lattice Boom Crane rotated while the crane was being operated during the disassembly process.

11. On 02/27/2020, no barriers were in place to mark the boundaries of the swing radius of the Lattice Boom Crane’s rotating superstructure.

1 2. On 02/27/2020, the Lattice Boom Crane’s operator, Mr. Albanese, did not erect any barriers to mark the boundaries of the swing radius of the Lattice Boom Crane’s rotating superstructure.

( Joint Prehearing Statement , p.
4 )

For the Secretary,
the fact NACR concedes its crane operator rotated the superstructure of the
red crane while its swing radius was unmarked is
sufficient to establish noncompliance with the standard.
As evidence of the additional requirement set out in § 1926.1424 (a)(1)
( that he
establish
the existence of
accessible areas
where the crane’s rotating superstructure
could strike or crush an employee ) , the Secretary points to Exhibit J-9 , a photograph taken from the video admitted
as Exhibit J-20, show ing
that
“ [t]wo of Respondent’s employees . . .
stood at the end of the crane’s crawler tracks as the superstructure rotated. ” (Secretary’s Brief, p. 11)
The Secretary
argues, “[I]t is undisputed
that the superstructure was rotating while two employees stood within mere feet of it . . . .
Accordingly, there was a reasonably foreseeable risk that an employee could have been struck by the superstructure or pinched between the superstructure and another part of the red Lattice Boom Crane. ”
(Secretary’s Brief, p. 12)

The Court disagrees .
The testimony of for eman
Mendonca
establishes
that at
all
times
when
the superstructure rotated on February 27, 2020,
no
counterweights
were attached,
and its
swing radius
did not extend beyond the body of the
vehicle . N o swing radius hazard existed.

Mendonca
testified
that the day of the OSHA inspection,
the
red
crane operator crawled the crane to the assembly area with the boom forward . At the disassembly area, NACR employees removed the boom sections , during which
time
the
superstructure of the red crane remained
facing forward and
parallel with the crawler tracks
(Tr. 222-23).
NACR employees then
plugged
a
remote control
device
into the red crane
and used it
to drop the counterweights
from the superstructure . Use of the
remote
control
device
temporarily disables
the crane’s operating system so
that , according to Mendonca, “[N] obody
would go in and hit the, have an accident, you know, so everything gets controlled by that remote. So, it wouldn't swing out .” (Tr. 225)
Mendonca
testified that
the
red crane never rotated in the disassembly area until the counterweights
had been
dropped
from the superstructure
(Tr. 225-27) .

The CSHO
described
Exhibit J-20 as showing “the crane’s superstructure ,
with the counterweights rotating , and rotating towards the employees near the end of the crawler track.” (Tr.
43)
(emphasis added)
He
did not realize
until
he
was
cross-examined that the counterweights of the red crane had been removed
at the
time
he
recorded
the
video ( Exhibit J-20 ;
Tr.
93-95, 97).
The CSHO
t ook no
measurements
of the red crane (Tr.
91, 99).
He
stated the two NACR employees were “pretty close” to t he end of the crane’s cr awler track, but he “couldn’t put a number to it.” (Tr.
43)
The page of the crane manual that he testified he consulted to
determine
that
the crane’s superstructure extended past
the crane’s track does not
provide dimensions of the crane ( Exh .
J-32; Tr. 99, 101, 131).

The CSHO’s
testimony on cross-examination
demonstrates
he
had no quantitative data to back up
his
claim
that
the
crane ’s superstructure , without counterweights,
posed a reasonably foreseeable risk of striking employees standing at one end of the
crawler track .
NACR’s counsel, referring to Exhibits J-9
(the photo)
and J-20
(the video) ,
questioned the CSHO regarding the
end of the superstructure marked with the number “1250” in white paint.

Q .: Do you know if the crane rotated in the direction, that was observed rotating in the video, if that 1250, or this side of the crane, we'll say the butt of the upper works, would extend past the end of the tracks where the two workers were on the right part of the photo?

C SHO: I don't know that from the top of my head.

Q .: Okay, and do you know if the crane had rotated the other way, if the butt of the crane where it says 1250 would extend beyond the back of the track from the other side where that one worker is to the left of the photo?

CSHO : I don't know that.

Q .: Okay, and would you agree that if the butt of the red crawler crane did not extend past the outer point of the tracks, that that would not be a hazard to workers who were standing where they're standing, as depicted in J-9?
. . .
If the 1250, which is shown on the back of the red super structure, upper works, if that was parallel to the tracks and did not extend past the tracks, would you agree there was no swing radius hazard to the workers standing in the photo on the right, Exhibit J-9?

CSHO: Well, if what you -- in your scenario, if
they stayed where they were and didn't move, they wouldn't be struck by it.

(Tr. 110-11)

The CSHO’s
testimony , in which he is unclear on whether the crane’s superstructure
extended beyond the tracks of the vehicle , contrasts with the certainty of the testimony of Izzo,
who was familiar with the
red crane
at issue,
and Mendonca, who was onsite and oversaw the disassembly of the red crane on February 27, 2020.

Izzo
testified,

[The red crane]
does not extend beyond the tracks .
. . .
[A] t this stage of the dismantle, the house has been dismantled to such a point where there is no external swing radius of the crane.

(Tr. 284)

Mendonca
stated
that “at no point, anytime, this red crane was in the disassembly area, did it ever rotate with those counterweights on back.” (Tr. 225) After the counterweights were removed, Mendonca testified, the superstructure of the crane did not extend over the crane’s track. “[I]t’s flush with the track . . . .
I mean, I was there, I could, you could see, you’re standing there, the rig’s standing, you could see it’s clearly flush with the track.” (Tr. 229)

The Secretary has failed to
adduce
any probative evidence establishing th at
a swing radius hazard existed
when the superstructure of the red crane rotated
in the disassembly area on February 27, 2020. Exhibits J-20 and
J-9 show the CSHO was mistaken when he claimed the
counterweights were intact
and creat ed a struck-by or crushing/pinching hazard
when he videoed the
rotation of the crane’s superstructure.
The Secretary did not produce measurements
showing any part of the superst ructure extended beyond the body of the crane vehicle, and it is not possible to determine from the angle
of the video in Exhibit J-20
whether
the superstructure overhangs the vehicle body at any point.

The Court
concludes the Secretary
did not prove
NAC R failed to comply with the requir ements of § 1926.1424(a) (2) (ii)
during disassembly of
the red crane.
He has failed to establish a violation
with regard to
Instance B of the Citation.

Instance A:
Lef t Side of the Yellow Crane

In contrast to the lack of evidence regarding
a swing radius hazard for the red crane, the Secretary has
adduced
unambiguous evidence
the counterweights of
the
yellow crane extended
approximately
3 feet
beyond the
marked boundary of the swin g radius o n the left side of the yellow crane.
The parties stipulate the following:

15. At various times on 02/27/2020, the superstructure of the Assist Crane, including the counterweights, rotated while the crane was being operated.

16. On 02/27/2020, the outriggers of the Assist Crane were fully extended.

17. At the time when
    t he CSHO
    conducted his initial walkaround on the Job Site on 02/27/2020, a rope with a sign reading “DANGER—SWING AREA—RESTRICTED”
    was hung between one set of the Assist Crane’s outriggers .

( Joint Prehearing Statement , p. 4)

Page 7 of the yellow crane’s manual (Exhibit J-31) shows a diagram with the dimensions of the crane. The swing radius of the superstructure with the counterweights is 13 feet, 5.5 inches, from the center of the vehicle. The fully extended outriggers are 10 feet from the center of the vehicle. Therefore, when both outriggers are fully extended on
either
side of the crane, the counterweights will extend 3 feet, 5.5 inches, beyond the outriggers ( Exh . J-31, Bates p. 75; Tr. 61-3). The distance from the ground to the bottom of the counterweight was 5 feet, 7 inches ( Exhs . J-11, J-12, J-13; Tr. 64-65).

Exhibit J-6 is a photograph showing the
counterweights extending almost their full leng th
beyond
the outriggers
and suspended chain.
It is undisputed that the chain and attached sign
on the left side did not
mark the boundaries of the swing radius of the counterweights.
The issue is whether the counterweights posed a reasonably foreseeable
risk of striking or
crushing/pinching employees on the left side of the yellow crane.

Izzo testified
that
he
and the Lift Planning Group planned
the disassembly of the red crane
so that all
lifting
and landing of the
red crane’s
boom sections
would take place on the left side of the
yellow
cran e.
The counterweights would, therefore ,
be on the
right
side
of the yellow crane
as
it s boom
hoisted the red crane’s boom sections.

Looking at Exhibit J-16 , a photograph showing the right side of the yellow crane, Izzo stated,
“ We planned that
[area]
as a roadway between the crane and that berm you see on the right side of the frame, to be a roadway for our tractor trailers to get closer access to the superstructure, both the upper and lower works of the red crane. So that was the primary route for cranes to access the large red crane. ” (Tr.
296) ,

William Murphy, t he operator of the yellow crane ,
confirmed that the right side of the yellow crane was used as a roadway.
“ [A] ll
the work was to the left side .” (Tr.
340)
When
Murphy was shown
a photograph of the
area to the right of the yellow crane ( Exhibit J-16 ) , he
stated ,
“That was the right side of the crane where we weren't doing -- that was a roadway for the trucks to get in and out . . . .
I never picked up or hoisted anything from that side.” (Tr. 340-41)

Mendonca and Murphy both testified
confidently
that the CSHO was able to photograph the counterweights of the yellow crane
located on the crane’s
left side
only
because he instructed Murphy to
rotate the superstructure
to that location
(Tr. 256, 347-48). The CSHO denied doing so, but his
recollection of the
inspection was less certain than that of the NACR employees.

Q .: And what, if anything, did you ask the crane operator to do so you could get those photos?

CSHO: I may have asked to make sure that the crane operator was not operating the crane, that he got out of the cab, I don't recall that a hundred percent clearly, but it's possible that I did that, because didn't want to expose myself to a hazard, obviously, so I wanted to make sure that that thing wasn't going to be operating while I'm trying to take a measurement.

(Tr. 60-61)

Mendonca and Murphy
are
matter-of-fact
in their recounting of the CSHO ’s instruction to rotate the yellow crane, and they
each
phrase their testimony
as an account of an event that actually
happened . Mendonca stated the
location of the counterweights on the left side of the yellow crane as shown in Exhibit J-6
“was just for
a picture,” (Tr. 256)
and Murphy testified, “I believe, when the inspector came
he wanted me to swing over . . . .
S wing over to the opposite side of the work area .” (Tr. 347)

In contrast, t he CSHO frame d
his responses to questions about
Exhibit J-6 in terms of what he would have done, or what he expected would have happened , while also stating he did not recall
how the counterweights came to be on the left side of the yellow crane.

Q.: [D] id
you ever speak with anyone before you took this photo marked J-6 from North American Crane?

CSHO:
Yeah, I previously testified, I don't have a specific recollection, but I would, I believe I would have told them, hey, look it, I'm going to take some measurements, either I want you out of the crane or that crane can't operate while I'm taking these measurements. So, I would expect that there was a conversation about that.

Q .:
Okay; and that's just based on how things usually work, but as you're sitting here today, you don't remember any specific conversations that were had; right?

CSHO: I don't recall.

Q.: So, you wouldn't recall, for example, if you had asked the operator to swing the counterweights to
the
left side of the crane?

CSHO : I would not instruct somebody to rotate the super structure
in order for
me to take a photograph or a measurement.   

(Tr. 119-20)

Based on the respective demeanors of the witnesses, the Court finds Mendonca and Murphy to
be more credible on this point than the CSHO. Mendonca and Murphy have specific memories that there was no reason for the boom of the yellow crane to be on
the right side (causing the counterweights to be on the left side)
and that the CSHO instructed Murphy to rotate the superstruct ure to position the counterweights on the left side.
The CSHO, on the other hand, was vague in his recollection of the inspection and
spoke in terms of what he would have done or what might have happened, and not what
he
actually recalled .
The Court
finds
the CSHO directed Murphy to
rotate the superstructure of the yellow crane
to position the counterweights over the outriggers on the left side.

Furthermore, the
photographic
and video
exhibits , as well as
the CSHO’s testimony ,
bear out NACR’s central argument that there was no
reason for the counterweights to be
positioned on the left side of the yellow crane.
It is undisputed
that
the boom sections of the red crane were
positioned
to the left of the yellow crane ,
from where they were hoisted and landed on a
flatbed truck , also
parked on the left side of the yellow crane ( Exhs . J- 20, J -24, J-25, J -28,
J-30 ) . The CSHO acknowledged the logic
of NACR’s contention that the counterweights would not
have been located on the left side of the yellow crane
as NACR employees performed their assigned task.

Q .: [W] ould
you agree if there were no hoisting operations to the right side of the outriggers, that means the boom would never be in the direction of the right side of the outriggers for purposes of any hoisting operations; would you agree with that?

CSHO: I would agree that if they weren't hoisting from the right side of the crane, you wouldn't expect that the counterweights would be on the other side of the crane.

Q .: So, if there was no hoisting in this area, you wouldn't expect the counterweights to be on the other side, because the counterweights are always on the other side; right?

CSHO: That's correct.

Q.: So, just to drive the point home, if you have the crane, it's operating the boom over the left side, a crane like this Grove mobile crane, the boom's operating over the left side, the counterweights would be over the right side behind it; right?

CSHO: Yeah, that's correct.

Q . :
And if the crane was never operating on one side, it means the counterweights would never be on the other side, right?

CSHO: Well, I think -- I think there wouldn't be a readily apparently reason why that would be true.

(Tr. 117-18)

The CSHO
posited one situation that he thought might explain the counterweights being on the left side of the yellow crane.

CSHO: I could envision a scenario, though, where they might want to move, they might want to rotate the crane
in order to
get the counterweights on the other side. So, for example, if that area was relatively small, that flat compacted area, they might want to move the counterweight out of the way so that a vehicle could pass more easily.

Q Right; do you know if that ever happens, did you ever see that happened on February 27, 2020?

CSHO: I
don't recall for sure .

(Tr. 118)

The Court does not
find the CSHO’s
testimony
persuasive on this point. He stated he does not recall if he
observed an occurrence of this situation, and there is no evidence in the record that
such an event happened.
Furthermore, if NACR
were required to move
the counterweights
so vehicles could pass unimpeded on the right side of the
yellow crane, there would be no need to swing the crane 180 ˚
so that the counterweights were positioned
directly above the
front outrigger on the left side. The crane operator could
rotate the superstructure a quarter turn so that the counterweights were positioned to either the front or the back of the crane vehicle , where
the swing radius does not extend past the
body of the vehicle.

The Secretary has established
the chain
NACR
suspended between the outriggers on the left side of the yellow
crane was inadequate to mark the boundary of the swing radius on that side. He has failed, however, to
meet the requirement set out in § 1926.1424(a)(1)
to show the
rotating superstructure of the yellow crane posed a reasonably foreseeable risk of striking or
pinching/crushing an employee in an accessible area
on the left side .
NACR planned the disassembly of the red crane so that
all of
the hoisting, swinging, and landing would be performed on the left side of the
yellow crane.
All witnesses who testified about this issue, including the CSHO, agreed
NACR’s work assignment that day required the counterweights to remain on the right side
of the crane, where they posed no struck-by or pinching/crushing hazards to employees on the left side of the crane.

NACR planned the
disassembly of the red crane so that the
left side of the
yellow crane w ould not be a zone of danger.
Based on the work plan, it was not reasonably
foreseeable (or predictable) that an OSHA CSHO would instruct
the operator of the yellow crane to swing the counterweights to the left side of the crane so he could document
that the counterweights extended past the boundary marker on that side.

In determining employee access to the hazard, “the
‘ inquiry is not simply into whether exposure is theoretically possible,' but whether it is reasonably predictable ‘either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”’  Id.  at 1818-19. “The zone of danger is ‘that area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent.”’  KS Energy Servs., Inc. , 22 BNA OSHC 1261, 1265 (No. 06-1416, 2008) (citing  RGM Constr. Co. , 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)).

Gate Precast Co. ,
No. 15-1347,
2020 WL 2141954, at *2 (OSHRC April 28, 2020).

Here , the only time
the left side of the yellow crane became a zone of danger was when
Murphy
rotated the counterweights to that side after
the CSHO instructed
him to do so.
Murphy testified he
exited the crane after he had repositioned the counterweights. There is no evidence
NACR
employees were in the zone of danger during this time. They had no operational
necessity for approaching the zone of danger since work was halted while the CSHO photographed the counterweights on the left side of the crane.
The superstructure of the yellow crane could not rotate because
Murphy had exited the cab of the crane. The
video and photographs
cited by the Secretary
as showing employee exposure to the zone of danger
( Exhs . J-23, J-24,
J-25 )
were taken when the counterweights were on the right side of the yellow crane , as established by the
boom of the yellow crane
visible
on the left side.

The Court determines the Secretary did not prove NACR violated § 1926. 1424(a)(2)
with regard to
the left side of the yellow crane . The counterweights of the crane, which represented the
swing radius hazard, remained on the right side
while NACR employees worked on the left side.

Instance
A : Right Side of the Yellow Crane

On
February
27, 2020,
NACR
crane operator Murphy
rotated
the
yellow crane’s
counterweights
on the right side
of the crane
to perform most of
the
hoisting and landing of the
re d
crane’s
boom sections on the left side . It is undisputed
th at when the counterweights
rotated on the right side of the yellow crane, they
extended beyond
the rope
that NACR
suspended between the
outriggers on t hat side.

NACR assert s
the
affirmative defenses of greater hazard and infeasibility .
In its brief, however, it
appears
NACR
intends
t hose defenses
to relate
only
to the red crane and the left side of the yellow crane, but not to the right side of the
yellow crane .
For example, NACR argues,

Extending the caution tape outwards from the outriggers, farther away from the Assist crane superstructure, thereby creating a wider perimeter around the center of the Assist crane, would have placed the caution tape
. . .
in
close proximity
if not directly in the path of the multiple sections of lattice boom from the red Barnhart crane and the tractor-trailers. Since multiple sections of the lattice boom were moved into position, one-by-one, the caution tape (or any other barrier used) extending outwards from the outriggers would need to have been taken down and then put right back up again (for every single section of Barnhart crane boom).

Any process of repeatedly taking down and putting back up the caution tape
in the area of
the yellow Assist crane would have caused employees to position themselves in the swing radius hazard area many more times than they otherwise could have and/or would have been. This would have increased any potential hazard, not decreased the hazard. Notably, there was a sign hanging from a chain hanging between the outriggers of the assist crane warning workers about the swing radius hazard. This sign, along with the workers’ training, including situational awareness in performing such disassembly operations, provided sufficient protection from swing radius hazards and was a safer measure than extending any caution tape from the yellow Assist crane’s outriggers .

(NACR’s Brief, p.
23-24)

In any event, NACR failed to meet the requirements of either defense. 4

The Court finds that
with regard to
the right side of the
yellow crane, the Secretary has established NACR failed to comply with the terms of the cited standard by failing to
mark the boundaries of the swing radius
of the counterweights.

(3) Employee
Access to the Hazard

Section 1926.1424(a) (1)
provides that the cited standard,
§ 1916.1424(a)(2)(ii), applies only “ where there are accessible areas in which the equipment ’ s rotating superstructure
. . .
poses a reasonably foreseeable risk of ” striking or pinching/crushing
employees. This requirement
touches on
all elements of the Secretary’s burden of proof: applicabili ty, compliance, employee access, and employer knowledge.
The Court will address it here because ,
at this point in the decision,
the right side of the yellow crane is the
only area still at issue
as
potentially presenting
a swing radius hazard.

The
Secretary must establish
the
swing radius of
the
crane’s
rotating
superstructure
(in this case,
the attached counterweights)
created a zone of danger to which employees had access.
The zone of danger “ is normally that area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent. ”
RGM
Constr. Co.,
No. 91-2107,
1995 WL 242609, at *5 (OSHRC
Apr. 24, 1995) .
Employee a ccess
to the danger
is established
by sh owing that “ during the course of their assigned working duties, their personal comfort activities on the job, or their normal ingress-egress to and from their assigned workplaces, employees have been in a zone of danger or that it is reasonably predictable that they will be in a zone of danger. ”
Id.

The Secretary has adduced no evidence that
it was reasonably predictable or reasonably foreseeable that
NACR’s employees
would be in the zone of danger
due to assigned work duties, personal comfort
activities ,
or
normal ingress-egress to and from
their assigned workplaces.
Most of the instances
the Secretary
cites
for
employees allegedly being in the zone of danger of the yellow crane
relate to the left side of the crane . T he Court determined
in the previous section that
it was not reasonably foreseeable that
the CSHO would instruct the crane operator to position the counterweights
on the left side of the crane .

Regarding the right side of the yellow crane, the Secretary
asserts
the CSHO
“observed employees standing in the zone of danger on the opposite side of the crane, wher e the counterweights were located while the yellow Assist Crane hoisted
the lattice boom pieces onto
trailers. ”
(Secretary’s Brief, p.
15)
The Secretary cites
the following
transcript
pages
and
exhibits
in
support of th at
statemen t :

Q .: Could you just describe for us, this area of the job site that's depicted in Exhibit J-16?

CSHO: [I] t's the far side of the
c rane and it's looking at the two outriggers extending from the chassis, so again, it's the opposite side from the building.

Q .: And did you see any employees in this area while you were on the job site?

CSHO: Yes.

(Tr.
67)

Exhibit J-16 is a photograph of
the right side of the crane. No
employees or other people appear in the photograph.

Q .: And did you observe any employees standing or walking on the counterweight side of the yellow assist crane?

CSHO:
Yes.

. . .

Q .: What is the closest distance that you observed a North American Crane employee get to the yellow assist crane while you were on the site?

CSHO: Pretty close.

(Tr.
69)

Exhibit J-28
is the photograph that the Secretary refers to in his brief as evidence employees were in the zone of danger on the
left side of the yellow crane.
The CSHO took the photograph f ar enough from the yellow crane to encompass
a large area of the construction site, including part of the
wall to the left, the flatbed truck on which Murphy was landing the red boom sections, bo th the red and yellow cranes, and another flatbed truck
parked behind the yellow crane.
S omewhere between the back of the yellow crane and the front of the flatbed truck are two
employees .
The flatbed truck obstructs the view of
most of the employees ’ bodies .
Only the white hard hat of the employee on the right is
visible.
It is possible to see the left shoulder area and the hard hat of the employee on the left. 5

It is impossible to determine whether the two employees were in the zone of danger of the crane’s counterweights from Exhibit J-28 . The photograph is b lurry, the employees are mostly obscured from view, and the angle
from which
the photograph was
taken is not conducive to estimating distances.
The Court finds
th at
Exhibit J-28 and the
vague testimony of the CSHO that he observed
employees on the right side of the
crane
and they were “pretty close”
to the crane
lack probative
value. The CSHO
neither measured the distance from the swing radius
of the yellow crane
to the location
where
the
employees were standing
nor offered an estimate of the distance.

NACR has already established
its employees had no assigned work duties on the right side of the yellow crane —the disassembly was designed so that all assigned work
was performed on the left side of the crane. There
was no testimony or evidence indicating NACR’s
employees
used the right side of the crane
to t ravel for
personal comfort activities
or
to
walk
to and from their assigned workplaces . It is undisputed the right side of the yellow crane was used as
a narrow single traffic l a ne ,
and it was
bounded on
its right by a berm and
fence . Looking at Exhibit J-16, Izzo described the area .

[I] mmediately
to the right of the outriggers you see that active roadway we've been talking about where the trucks just constantly
[g o]
back and forth,
back
and forth.
And then, further to the right, you see the dirt berm, you know, that slope, which is not accessible or usable in any way.

(Tr. 301-02)

The Secretary has failed to establish
NACR’s employees had actual access to the zone of danger on the
yellow crane’s
right
side or that access was reasonably predictable or foreseeable based on the employees ’ assigned work activities, personal comfort activities, or ingress/egress routes. The Court finds the Secretary has not
prove d
the element of employee access
with regard to
the right side of the yellow crane.

Item 1 of the Citation is vacated.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a).

ORDER

Based on the foregoing decision, it is hereby
ORDERED :

Item 1, alleging a serious violation of §
1926.1424(a)(2)(ii) , is
VACATED , and no penalty is assessed.

SO
ORDERED.

/s/ _________

Sharon D. Calhoun

Dated: August 6 ,
2021                Administrative Law Judge, OSHRC

Atlanta, GA

"

1
At the hearing, the Court granted
the Secretary’s motion to amend the Citation to
correct
a typo graphical error in the
alleged violation description (AVD) (Tr. 16-17).

2
The standards are : §§ 1926. 1403 ( Assembly/Disassembly—selection of manufacturer or employer procedures );
1926.1404 ( Assembly/Disassembly —general requirements (applies to all assembly and disassembly operations );
1926.1405 ( Disassembly —additional requirements for dismantling of booms and jibs (applies to both the use of manufacturer procedures and employer procedures );
1926.1406 ( Assembly/ Disassembly— employer procedures—general requirements ), and 1926.1407 ( Power line safety
(up to 350kV)—assembly and disassembly ).

3
NACR advances
an additional argument
regarding the applicability of § 1926.1424( a)(2)(ii) to the cited conditions.
Section
1926.1424(a)(1)
provides
that
the cited standard
applies
where
the crane 's rotating superstructure
“ poses a reasonably foreseeable risk of ” striking or
pinching/crushing an employee.
NACR
argues
the Secretary failed to establish
that
a
reasonably foreseeable risk of employee exposure
to swing radius hazards
existed
the day of the OSHA inspection.
Therefore, NACR contends,
the cited standard does not apply.
The Court
considers
this argument
to be
more
apposite to the
proof
elements of compliance and
employee access to the hazard
and will
address
it in the
following
section s
of this decision.

4 To establish a defense of greater hazard, an employer must prove that:

(1) the hazards created by complying with the standard are greater than those of noncompliance, (2) other methods of protecting employees from the hazards are not available, and (3) a variance is not available or application for a variance is inappropriate.  See Spancrete Northeast, Inc.,  15 BNA OSHC 1020, 1022–23, 1991 CCH OSHD ¶ 29,313, pp. 39,356–39,357 (No. 86–521, 1991). These three elements are now well-established in court precedent.  Id.  at n. 3 (listing cases). An employer's proof of the unavailability or inappropriateness of a variance is particularly important.  E.g., PBR, Inc. v. Secretary of Labor,  643 F.2d 890, 895 (1st Cir.1981).

Seibel Mod. Mfg. & Welding Corp.,
No. 88-821, 1991 WL 166592, at *8 (OSHRC
Aug. 9, 1991) .

Here, NACR’s defense fails because it did not file a variance or adduce any evidence that application for a variance is inappropriate
(“ Respondent did not request a variance from the requirements of 29 C.F.R. § 1926.1424(a)(2)(ii) before beginning work at the Job Site on 02/27/2020. ” ( Joint Prehearing Statement,
p. 3,
¶ 4 ) ).
NACR makes no mention in its brief of the “particularly important” third element of unavailability or inappropriateness of a variance.

As noted ,
proof of
infeasibility requires the employer to
establish that :

(1)
[T] he means of compliance prescribed by the applicable standard would have been infeasible, in that (a) its implementation would have been technologically or economically infeasible or (b) necessary work operations would have been technologically or economically infeasible after its implementation, and (2) there would have been no feasible alternative means of protection.

Altor, Inc.,
2011 WL 33135, at *13 .

In addition,
§ 1926.1424(a)(2)(ii) requires
an
employer
asserting the infeasibility defense
to
clearly mark the hazard areas “by a combination of warning signs (such as “Danger—Swing/Crush Zone”) and high visibility markings on the
equipment that identify the hazard areas.”

NACR did not post a warning sign on the right side of the yellow crane and there is no evidence it placed high visibility markings on the equipment that identified the swing radius of the counterweights.
Its infeasib ility defense also fails.

5
The hard hat of a third employee is visible at the right edge of the photograph , several feet behind the other two employees.
The Court examined the Exhibit J-28 with the aid of magnification.