Waste Management of Palm Beach, Division of Waste Management, Inc., of Florida
Commission affirms hazard from unauthorized reinforcement of trash-loader boom
Apply this precedent to your situation
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Plain-English summary
Waste Management of Palm Beach operated garbage trucks fitted with hydraulic trash loaders whose flexible booms were designed to absorb operating shock. After one boom cracked, the company welded steel plates along it without evidence of manufacturer approval. The trash-loader assembly later separated from the truck after a torque-tube failure and crushed an employee, causing fatal injuries. Reversing the administrative law judge, the Commission credited expert testimony that the added weight and stiffness defeated the boom's shock-absorbing function and transferred damaging fatigue to other components. It also found the unrebutted testimony of a crane-safety expert minimally sufficient to prove industry recognition of the hazard. The Commission affirmed a serious general duty clause violation and assessed the stipulated $3,500 penalty.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1), the general duty clause.
- Outcome: Affirmed. The Commission reversed the judge's vacatur, affirmed the serious citation, and assessed $3,500.
- Key point: Unauthorized reinforcement can create a recognized hazard when it defeats a machine component's designed flexibility and shifts stress to parts not built to carry it.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N. W., Ninth Floor
Washington, DC 20036-34 19
Phone: (202) 606-5400
Fax: (202) 606-5050
SECRETARY OF LABOR, ..
Complainant,
v. Docket No. 93-128
WASTE MANAGEMENT OF I
PALM BEACH, DIVISION OF :
WASTE MANAGEMENT, INC., :
OF FLORIDA, ..
Respondent.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
August 4. 1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO
WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF
APPEAL WITH THE APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60
DAYS OF THE DATE OF THIS DECISION. See Section 11 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 0 660.
FOR THE COMMISSION
August 4. 1995
Date
Docket No. 93-128
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Jaylynn Fortney, Esq.
Regional Solicitor
Office of the Solicitor, U. S. DOL
Suite 339
1371 Peachtree St., N.E.
Atlanta, GA 30367
Gil A. Abramson, Esquire
Hogan & Hartson
Columbia Square
555 Thirteenth Street, N. W.
Washington, DC 20004-l 109
Andi S. Kenney, Esquire
Environmental Counsel
Waste Management, Inc.
3003 Butterfield Road
Oak Brook, IL 60521 .
Nancy J. Spies
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE
COM(202)606-6100
m(202)606-5100
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 93-128
.
WASTE MANAGEMENT OF PALM BEACH, I
DIVISION OF WASTE MANAGEMENT, INC., :
OF FLORIDA ..
..
Respondent. ..
.
1
DECISION
BEFORE: VVEISBERG, Chairman; MONTOYA, Commissioner.
BY THE COMMISSION:
This case presents the issue whether Waste Management of Palm Beach, Division of
Waste Management of Florida (“WM”) violated section 5(a)(l), 29 U.S.C. 9 654(a)(l),’ the
“general duty clause,” of the Occupational Safety and Health Act of 1970,29 U.S.C. 00 651.
678 (“The Act”), by reinforcing with plate steel the otherwise flexible main boom of a crane-
like device mounted on a garbage truck. Following a fatal accident in which the entire
device separated from the truck and crushed an employee, the Occupational Safety and
‘Section 5(a)( 1) provides:
Each employer- (1) shall furnish to each of his employees employment and a place
of employment which are free from recognized hazards that are causing or are likely
to cause death or serious physical harm to his employees.
1995 OSHRC No. 40
2
Health Administration (“OSHA”) inspected WM’s workplace. As a result of that inspection,
OSHA issued a citation and alleged that WM’s unauthorized reinforcement of the truck
boom was a violation of section 5(a)(l).
Administrative Law Judge Nancy J. Spies determined that the Secretary of Labor
(“Secretary”) failed to establish the existence of a hazard or recognition thereof. For the
following reasons, we reverse the judge’s decision and affirm the citation. The parties
stipulated that if the citation were affirmed, the Secretary’s proposed $3500 penalty would
be appropriate. We agree, and hereby assess that amount.
I. Background
WM operates a solid waste collection business in which its employees drive a number
of trucks equipped with a Petersen Trash Loader (“PTL”) installed between the cab and
tilting bed of the truck. The PTL is a hydraulic crane-like device, manufactured by Petersen
Industrial Machines, Inc. (“Petersen”), that is fitted with a bucket designed to pick up large
refuse items not suitable for a conventional garbage packer. The PTL’s flexible main boom
was designed and manufactured by Petersen to absorb the shock associated with normal use
of the trash loader.
One of VVM’strucks fitted with a PTL, Unit 684, developed cracks on its main boom
that prompted WM, on May 22, 1990, to reinforce it with a process called “fishplating,”
whereby steel plates extending the length of the boom were welded onto it. There is no
record evidence that WM sought or received approval from Petersen concerning this
modification to the PTL. On June 13, 1992, while working with Unit 684, WM employee
James Wallace was killed when the torque tube, the device by which the PTL is attached to
the truck, broke, causing the PTL to separate from the truck and the head assembly to fall
on him.
II. Analysis
To establish a violation of section S(a)(l), the Secretary must prove that: (1) a condition
or activity in the employer’s workplace presented a hazard to employees, (2) the cited
employer or the employer’s industry recognized the hazard, (3) the hazard was causing or
likely to cause death or serious physical harm, and (4) feasible means existed to eliminate
or materially reduce the hazard. Walden Healthcare Ctr., 16 BNA OSHC 1052, 1058, 1993
3
CCH OSHD 7 30,021, p. 41,151 (No. 89-2804, 1993) ( consolidated). At issue here is
whether a hazard existed and whether it was recognized. The parties do not dispute that
a collapse of the PTL’s boom is likely to cause death or serious physical harm, or that it
would have been “feasible” to replace the boom or seek prior manufacturer approval of any
modifications.
A. Was the fishplating hazardous?
The alleged hazard is that fishplating the boom of Unit 684 would override the boom’s
flexing capacity, purposely designed as a shock-absorbing feature, and cause fatigue to
transfer to other parts of the PTL, resulting in the breakdown of parts not designed to
withstand such fatigue. David Perry, a consulting crane expert specializing in the design,
engineering, and safety of cable-fitted hydraulic cranes, testified for the Secretary.2 Perry
testified that boom trucks such as the PTL are a type of crane, and that the two types of
cranes have basically the same features: a hydraulic system to rotate the superstructure,
and a boom to pick up articles. The only difference he noted was that the “boom truck
doesn’t have a hoist or winch, a cable, whereas a crane usually does.“3 Perry testified that
the PTL’s main boom was originally designed with shock-absorbing flexibility to avoid shock
and fatigue transfer to other areas of the equipment. He stated that WM’s reinforcement
of the boom would make it more rigid, undermining its ability to absorb shock, and that
without its shock-absorbing capacity, the boom would transfer loads to other areas of the
PTL, such as the torque tube. Perry further noted that the excess weight of the
reinforcement would diminish the PTL’s lifting capacity and overload the crane structure.
2Although he lacks similar expertise with boom trucks, such as the PTL, Perry is familiar
with them. During his twenty-two years with Grove Mfg. Co., a manufacturer of mobile
hydraulic cranes and personnel lifting equipment, Perry occasionally reviewed the manuals
of boom trucks manufactured by a subsidiary company to assure compliance with Grove’s
requirements.
3WM’s witness, Larry Jones, testified that boom trucks must be operated differently than
cable-fitted cranes because of the differences in the swing-action of their booms. Jones,
however, gave no testimony concerning the effect of fishplating on either type of equipment.
Moreover, even WM twice referred to the PTL as a crane in its Answer to the Secretary’s
Complaint, an apparently common sense description.
4
Judge Spies declined to give “overriding credence” to Perry’s opinion, based on her view
that his crane expertise was not sufficiently related to the PTL and he was ignorant of the
conditions prevailing at the time of the accident. We find, however, that the PTL was
sufficiently similar to the type of equipment to which Perry’s expertise pertains to accord
significant weight to his opinion concerning whether the fishplating was hazardous.
Moreover,“it is the hazard, not the specific incident that resulted in injury . . . that is the
relevant consideration in determining the existence of a recognized hazard.” KelEySpringfield
Tire Co., 10 BNA OSHC 1970, 1973, 1982 CCH OSHD fl 26,223, p. 33,113 (No. 78-4555,
1982), afs’d, 729 F.2d 317 (5th Cir. 1984).
While the Commission will “give deference to findings that are based on credibility
determinations,” it need not defer to a judge’s finding based on factors other than demeanor
or those peculiarly observable by the hearing judge. All Pzqose Crane, Inc., 13 BNA OSHC
1236, 1239, 1986-87 CCH OSHD ll 27,877, p. 36,550 (No. 82-284, 1987). See also Falcon
Steel Co., 16 BNA OSHC 1179, 1190, 1993 CCH OSHD lI 30,059, p. 41,338 (No. 89-2883,
1993) (consolidated); Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d 317, 322 n.6 (5th
Cir. 1984)(finding Commission not bound even by administrative law judge’s credibility
determinations). Here, there is no indication Erom Judge Spies that her rejection of Perry’s
opinion was based on his demeanor, or any other factor concerning him that was uniquely
observable by her. Accordingly, we find no reason to defer to Judge Spies’ determination
to discount Perry’s testimony.
Perry’s opinion was consistent with that of Charles Denaburg, a consulting metallurgical
engineer specializing in failure studies and analysis, who testified for WM. Denaburg testified
that as a result of a manufacturing and design defect, Unit 684’s torque tube suffered from
a fatigue-induced crack, and had at some time been strengthened to overcome the fatigue
problem. This caused the fatigue to transfer to the next weakest point, ultimately causing
failures in the boom, provoking WM to reinforce it with steel plates. Commenting that this
fishplating was an “excessive fit,” Denaburg stated that by fixing the boom, WM forced the
fatigue back down into the torque tube, “ultimately creating the failure again.” Denaburg
further noted that the weight of the fishplating would “enhance or create a shorter time to
.
5
failure” of the defective torque tube. The testimony of both experts, therefore, supports the
conclusion that some of the stress on the torque tube would have been borne by the boom
had the boom not been fishplated.
Even the manufacturer of the PTL acknowledged and promoted the shock-absorbing
function of the main boom. Petersen explained in its specification literature that the main
boom is designed to “allow a shock absorbing flexing action.” In its marketing brochure,
Petersen emphasized that the shock-absorbing feature of the twin-boom design would absorb
shock loads rather than “transmitting them and sending shock forces throughout the loader
and truck causing rapid wear, breakdowns, and slower operating cycles.”
We conclude that the evidence is sufficient to establish that fishplating the boom of Unit
684 overburdened the PTL. The added weight of the fishplating exceeded the limits of the
crane structure and could have hastened the torque tube failure. Moreover, the fishplating
undermined the main boom’s shock-absorbing function, which could cause fatigue transfer
to other parts of the PTL unable to withstand the additional fatigue. Accordingly, we
conclude that fishplating the boom of Unit 684 was hazardous.
B. Was the hazard recognized?
In order to establish a violation of 0 5(a)(l), the Secretary must also prove that the
hazardous condition was recognized either by the particular employer, or its industry.
Walden Healthcare CR, 16 BNA OSHC at 1061,1993 CCH OSHD at p. 41,154. The only
testimony on this issue was given by Perry. After explaining that his observation of the
boom’s design indicated that it was intended to be flexible in order to absorb shock
associated with its operation, Perry stated unequivocally that “any time you see
reinforcements like this added to a boom, that is a recognized hazard in the industry.”
In determining whether a particular condition or practice is recognized as hazardous
under section 5(a)( 1), the Commission has relied on the testimony of “safety experts familiar
with the general workplace condition or practice” being challenged. KeZZjspring?cield Tire
4Cf: Towne Const~ Co., 12 BNA OSHC 2185, 2188 n.7, 1986-87 CCH OSHD ll 27,760,
p. 36,310 n.7 (No. 834262, 1986), afs’d, 847 F.2d 1187 (6th Cir. 1988) (evidence of crane
boom’s structural weakness, alleged to have caused its collapse, found irrelevant to
determination of whether load placed on crane boom exceeded limits of OSHA standard).
CO., 10 BNA OSHC at 1973, 1982 CCH OSHD at p. 33,113. In I&zity Sph.@dd, the
Commission found that a combustible dust explosion in a tire manufacturing plant was a
recognized hazard based largely on the testimony of a chemical engineer generally familiar
with the hazard of pressure build-up explosions in enclosed spaces. Id. Responding to
Kelly’s argument that the expert had “no experience specifically with the dust collection
systems used in the tire manufacturing industry to collect rubber dust from rib buffing,” the
Commission noted that “recognition of th[e] general principle on the causes of explosions
is not confined to any one industry. Instead, the principle is a basic one known to all
chemical engineers.” 10 BNA OSHC at 1973, 1982 CCH OSHD at pp. 33,112.13.
Moreover, “[blecause [the expert] was familiar with the type of dust collection system . . .
applied to the collection of rubber dust in Kelly Springfield’s plant, his lack of experience
in the tire manufacturing industry d[id] not detract fkom the weight . . . afford[ed] his
testimony.” 10 BNA OSHC at 1974, n.4, 1982 CCH OSHD at p. 33,113, n.4.
Here, the established hazard consists of fishplating the boom of a crane-like device. The
industry Perry asserts recognized this hazard is presumably the one to which his expertise
relates: crane safety, design, and manufacturing. As a crane expert with vast crane safety
experience, we conclude that, like the expert in KelEySprin@eld, Perry was “familiar with the
general workplace condition,” and is qualified to offer an opinion on whether fishplating a
boom on a crane-like device is a recognized hazard in the industry. 10 BNA OSHC at 1973,
1982 CCH OSHD at p. 33,113.
Although Perry’s testimony concerning industry recognition is somewhat conclusory, we
find that it is minimally sufficient to establish, prima facie, the recognition element of a
65(a)(l) violation. C$ Falcon Steel Co., 16 BNA OSHC at 1190-91, 1993 CCH OSm at
p. 41,339 (compliance officers ’ “meager” testimony concerning practicality of fall protection
tie off found sufficient to establish prima facie case). WM, however, might have rebutted
the Secretary’s showing of industry recognition had it produced evidence that the waste
management industry, or other relevant industries, did not, in fact, recognize the hazard
alleged here. C$ Hamilton Fixtzu-e,16 BNA OSHC 1073,1098,1993 CCH OSHD ll30,034,
p. 41,194 (No. 88-1720, 1993), afd withoutpublkhed opinion, 28 F.3d 1213 (6th Cir. 1994)
7
(employer evidence negating Secretary’s prima facie establishment of violation element
sufficient to rebut Secretary’s case). It failed to do so. In fact, WM produced no evidence
or testimony on this issue at all, leaving Perry’s opinion completely unrebutted. Accordingly,
we conclude that the Secretary has met his burden of establishing the alleged violation,
though just barely. Cc CF & TAvailable Concrete Pumping Inc., 15 BNA OSHC 2195,2198-
99, 1991-93 CCH OSHD TI29,945, pp. 40,938.39 (No. 90-329, 1993) (Secretary’s unrebutted
evidence “barely adequate” to establish violation).
III. Order
Accordingly, we affirm the citation for a serious violation of 5 5(a)(l) of the Act, and
assess the stipulated penalty amount of $3,500.
Stuart E. Weisberg
Chairman
Velma Montoya
Date& . August 4, 19% Commissioner
OCCUPATIONAL SA~~~~~~‘~~~~~‘~~“,EW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE: FAX:
COM (202) 606400 COM (202) 6065050
Frs (202) 6065100 FTS (202) 6064050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0128
WASTE MANAGEMENT OF NORTH AMERICA
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE IAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on July. ir, 1994. The decision of the Judge
will become a final order of the Commission on August 8,1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secret on or before
July 282 1B94 in order to ermit sufficient time for its review. T ee
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shah be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 2003603419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 6063400.
FOR THE CO
Date: July 8, 1994
DOCKET NO. 93-0128
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Don McCoy, Es .
Assoc. Re onal s elicitor
Office of If e Solicitor, U.S. DOL
Federal Building, Rm. 407B
299 East Broward Boulevard
Ft. Lauderdale, FL 33301
Gil A. Abramson, Esquire
Hogan & Hartson
111 South Calvert Street
Baltimore, MD 21202
Anne D. Samuels, Es uire
Waste Mana ement, % c.
3003 Butte 2 eld Road
Oak Broo, IL 60521
Nancv J. SDies
Administrative Law Jud e
0ccu.ationa.l Safety an d Health
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119
00110062452:04
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119
PHONE: FAX:
COM (404) 347-4197 COM (404) 347-0113
FTS (404) 347-0113
.
.
SECRETARY OF LABOR, ..
Complainant,
v. .. OSHRC Docket No. 93428
..
WASTE MANAGEMENT OF PALM :
BEACH, DIVISION OF WASTE ..
MANAGEMENT, INC. OF FLORIDA, ..
..
Respondent. ..
..
APPEARANCES:
Stephen Alan Clark, Esquire Gil A Abramson, Esquire
Office of the Solicitor Hogan & Hartson
U. S. Department of Labor Baltimore, Maryland
Fort Lauderdale, Florida For Respondent
For Complainant
Anne D. Samuels, Esquire
Waste Management, Inc.
Oak Brook, Illinois
For Respondent
Before: Administrative Law Judge Nancy J. Spies
DECISION AND ORDER
Waste Management of Palm Beach, Division of Waste Management, Inc., of Florida
(WM), contests a citation issued by the Secretary on December 7, 199.2, alleging a serious
violation of 8 5(a)(l). The citation resulted from an inspection conducted by the
Occupational Safety and Health Administration (OSHA) on June 16, 1992, in response to
the report of an employee fatality.
STIPULATIONS
The Secretary and WM agreed to certain stipulations prior to the hearing. The
pertinent stipulations provide (“Pretrial Stipulations of the Parties”):
1. Respondent, a division of Waste Management, Inc. of Florida, operates a
solid waste collection business that employs approximately 200 employees at
its establishment at 651 Industrial Way, Boynton Beach, Florida 33426.
2. Respondent’s employees operate several solid waste collection trucks that
have a Petersen Trash Loader installed between the cab of the truck and the
tilting bed of the truck.
3. One such truck, Unit 684, which was operated by James Wallace on
June 13,1992, had installed on it a Petersen Trash Loader that was purchased
new in 1988. Until November, 1991, this was numbered as Unit 696.
***
8. On June 13, 1992, in the vicinity of 323 Slqdine Drive, Delray Beach,
Florida, the torque tube of the Petersen Trash Loader of Unit 684 separated.
Respondent’s operator-employee, Mr. Wallace, died when the head assembly
of the Petersen Trash Loader fell on him.
9. The Sheriff held Unit 684 at its pound for investigation, and subsequently,
released it to respondent, who transported the Unit to its establishment.
10. On July 7, 1992, a representative from Petersen Industries, Inc., the
manufacturer of the Petersen Trash Loader, accompanied by representatives
of respondent, and others, had the opportunity to inspect Unit 684 at
respondent’s establishment. This was the only inspection made by
representatives at Petersen prior to delivery of the vehicle to Petersen for
repair.
11. Unit 684 was later transported to Petersen’s factory in Lake Wales,
Florida for repair.
12. Compliance Officer Joseph DiMartino of the Fort Lauderdale Area
Office of OSHA conducted an investigation of the fatality. The citation issued
to respondent after Mr. DiMartino’s investigation gave rise to this matter.
ALLEGED VIOLATION OF THE
GENERAL DUTY CLAUSE
Section 5(a) of the Occupational Safety and Health Act of 1970 (Act) provides:
Each employee --
(1) shall furnish to each of his employees employment and a
place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical
harm to his employees[.]
To prove that an employer violated 0 5(a)(l), the Secretary must show:
(1) that a condition or activity in the employer’s workplace presented a hazard
to employees; (2) that the cited employer or the employer’s industry
recognized the hazard; (3) that the hazard was likely to cause death or serious
physical harm; and (4) that feasible means existed to eliminate or materially
reduce the hazard. United States Steel Cop., 12 BNA OSHC 1692, 1697-98, ’
1986-87 CCH OSHD fl 27,517, p. 35,669 (No. 79-1998, 1986).
Coleco Indumies, Inc., 14 BNA OSHC 1961, 1963, 1991 CCH OSHD n 29,200 (No. 84-546,
1991).
In his citation to WM, the Secretary alleged:
(a) On or about June 16, 1992, at 323 Skyline Drive, Delray Beach, FL
33446, the torque tube failed on the “Peters[e]n” truck mounted crane, #684,
exposing employees to the hazard of being crushed.
1. Among other methods, one feasible and acceptable method .
to correct this is strict enforcement policy prohibiting the
modification of equipment without the specific authorization of
the manufacturer.
2. Prohibit employees from operating equipment after defect
is recognized during operating cycles.
In his complaint, the Secretary was more specific in alleging how WM violated
9 5(a)(l) (Complaint, lf VII(C)):
Respondent violated 5 5(a)(l) of the Act in that on or about June 16, 1992,
respondent’s employees were allowed to operate a Peters[e]n trash loader
#684 mounted on a Mack truck, which trash loader had unauthorized
3
modifications and maintenance deficiencies, including modifications such as
removal of the speed restrictors that limited lateral movement and lowering
of the boom, reinforcement of both sides of the boom with plate steel,
changing the overspeed control that diverts the hydraulic oil back to the tank,
modification of the stop blocks, and removal of the restrictor from the bucket
rotator, and including maintenance deficiencies such as not replacing badly
worn pins and bushings, having loose tie-down bolts, having a bent boom tip,
having a leaking tip cylinder, allowing excessive wear in the valve controlling
the loader swing; and allowing the upper bearing housing bushing to be
distorted and melted by welding on the head assembly. Respondent’s
employees were thus exposed to the recognized hazard of being struck and
seriously injured by failure of the lifting device with unauthorized
.
modifications and deficient maintenance.
The Secretary had considerably reduced this laundry list of complaints by the time
of the hearing, alleging only that WM (1) removed the trash loader’s speed restrictors and
(2) reinforced the trash loader’s flexible boom with “fishplating” (Tr. 11).
WM argues that it was not in violation of 0 5(a)(l) because the Secretary failed to
prove (1) that the speed restrictors were removed from the trash loader and (2) that the
reinforcement of the boom had a causal effect on the torque tube failure.
FACTS
The Petersen trash loader, dubbed by the manufacturer, Petersen, as a “Lightning
Loader,” is a hydraulic crane-like device that is installed between the cab and the bed of a
dump truck. The trash loader’s capacity is 2,000 pounds with the bucket and 3,000 pounds
without the bucket (Exhs. J-4, J-5; Tr. 18-19, 78, 99). The trash loader is designed to “pick
up brush and refrigerators and whatever someone would leave curbside from their household
that you wouldn’t put in a garbage packer” (Tr. 18).
The Restrictors
The boom of the trash loader is supported by a vertical torque tube that is turned by
a hydraulic motor or swing actuator (Tr. 28-30). The hydraulic lines have “restrictors,”
which restrict the flow of oil through the hoses. This serves to control the speed at which
the various components of the trash loader operate (Tr. 20).
4
The restrictors are located between various hose fittings and motor fittings and are
plainly visible (Exh. C-l; Tr. 30). They control the operation of the bucket, boom, and the
boom rotation motor.
The Reinforced Boom
In May 1990, WM had a welding shop reinforce the boom of Unit 684 with
“fishplating,” reinforcing both sides of the boom with steel plates (Exh. J-1; Tr. 178-179).
The steel was welded onto the boom to reinforce the pin boxes which cracked. These cracks
commonly appeared on the trash loaders’ booms. The welded steel plates were extended
beyond the pin boxes in order to spread the load over the length of the boom. Otherwise,
WM would have had to replace the boom every six to eight months (Tr. 179-181).
DISCUSSION
Removal of the Restrictors
Petersen Industries plant manager John Kregl inspected Unit 684 on July 7, 1992,
more than three weeks after the accident (Tr. 17-19). He observed that the restrictors had
been removed from the swing actuator motor and Tom the descent control on the main
boom (Tr. 24, 26, 37).
David Perry, a consultant called by the Secretary as an expert in the design and
manufacture of hydraulic cranes, testified that lowering the boom without the descent
restrictor placed more stress on the torque tube. Perry stated that it was a recognized
hazard to remove the restrictor from the descent function (Tr. 109).
Because the restrictors were missing from Unit 684 on July 7, 1992, when Kregl
inspected the unit, the Secretary infers that WM’s employees must have removed the
restrictors before the June 13, 1994 accident. The record fails to support the Secretary’s
inference.
Thomas Gintner, who was WM’s maintenance manager at the time of the accident,
arrived at the scene of the accident within minutes of its occurrence on June 13, 1992
5
(Tr. 137439). He was there from between 8:00 a.m. and 8:30 a.m. and stayed until after
1l:OO a.m., when he assisted in removing the boom from Wallace’s body (Tr. 140). During
that time, Gintner had ample opportunity to observe Unit 684. He testified unequivocally,
and without contradiction, that “[a]t that particular time, every restrictor was intact and still
on the vehicle . . . . I looked at each one specifically” (Tr. 141).
The Secretary attempts to discredit Gintner by questioning why he would bother to
notice such a thing. Gintner’s observations do not, however, strain credulity. Gintner was
WM’s maintenance manager, responsible for “anything that had to do with the maintenance
of vehicles” (Tr. 138). It is not unlikely that, left for three hours in the presence of one of
WM’s wrecked vehicles for which he was responsible, Gintner would note the condition of
the vehicles.
Derrick Pruner, one of WM’s top swingmen, operated Unit 684 on June 11,1992, two .
days before the accident. He testified that the boom operated very slowly, indicating that
the restrictors were in place at that time (Tr. 223).
The Secretary has presented no evidence tending to establish that WM removed the
restrictors prior to the June 13, 1992 accident. The Secretary’s only proof on this issue is
that the restrictors were not in place on July 7, 1992, approximately three and a half weeks
after the accident. The vehicle was towed from the site of the accident to the Palm Beach
County Sheriff’s impound for two days, then to a body shop in Fort Pierce for a week or
two. After that, it was taken to a storage place in Palm Beach Gardens for a night and then
was taken back to WM’s facility (Tr. 142-145). Unit 684 was out of WM’s possession for
much of the time between the accident and Kregl’s inspection. An unknown number of
people had access to it. The Secretary has failed to prove that it was WM who removed the
restrictors and that they were removed at the time of the accident.
Fishplating the Boom
There is no dispute that WM reinforced the boom of Unit 684 with fishplating.
Contrary to WM’s assumption, the Secretary is not required to prove that the activity
complained of resulted in the accident. The issue is whether fishplating (welding steel
reinforcement onto the boom) was a hazard and, if so, whether it was recognized. In this
6
case, however, the Secretary himself focused on the cause of the accident as support for his
contention that the fishplating created a hazard.
According to Perry, the Secretary’s expert, “anytime you see reinforcements like this
added to a boom, that is a recognized hazard in the industry” (Tr. 112). Perry believes that
the “boom was originally designed to have more flex in it. It’s able to absorb some of the
shock loads or high impact loads that would be placed in it in this type of operation and,
therefore, not transmitting all those loads back into the torque tube” (Tr. 111-112). By
reinforcing the boom, “it makes the boom taking some of the shock or absorbing some of
the loads, it’s going to transfer these loads to other areas” (Tr. 111). Perry testified that the
reinforcement of the boom was “a direct and proximate cause of this accident” (Tr. 116).
Perry’s opinion is not given overriding credence. He is not an expert in the specific
industry. His expertise in the crane industry is of a more general nature. The Petersen trash
loader was not a crane. Perry admitted that he did not know how Wallace operated Unit
684 (Tr. 125126), nor did he know the weight of the materials being lifted or the weight of
the steel plating on the boom (Tr. 118419). In addition, Perry based his assessment on his
being told the restrictors had been removed from the unit that had experienced torque
failure (Tr. 117-118). As noted, supa, the Secretary failed to establish that the restrictors
were removed. Perry gained his knowledge of the operation of the Petersen trash loader
by observing a unit at Petersen’s facility. The unit he observed had a different, larger
hydraulic motor on its torque tube than did Unit 684 (Tr. 115, 124-125).
An expert’s opinion is not necessarily controlling even if it is unrebutted. United
States Steel Cop. v. OSHRC, 537 F.2d 780 (3d Cir. 1976). Con-Agra Flour Milling Co., 16
BNA OSHC 1137, 1992 CCH OSHD !I 30,045 (No. 88-1250, 1993), afd, No. 93-2547 (8th
Cir. May 26, 1994).
WM presented the testimony of Charles Denaburg, a metallurgical engineer (Tr. 227).
Denaburg is an expert in fracture studies and failure analyses (Tr. 228). Denaburg examined
the actual torque tube that failed on Unit 684 and conducted a failure analysis of it (Tr.
233). He examined photographs taken at the accident site and modifications made to the
boom, and he studied the history of other failures in the pin sections of the hydraulic
cylinders (Tr. 234-235). Based upon his analysis of all these factors, Denaburg concluded,
7
“The cause of the failure certainly is fatigue which is a cyclic fracture propagation type stress
state that occurs over a fairly lengthy time” (Tr. 235). Denaburg testified that the torque
tube failed as the result of a manufacture and design flaw.
Denaburg specifically rejected the Secretary’s theory that the boom arm was operated
at too rapid a rate when the restrictors were removed. Denaburg analyzed the fracture
pattern in the torque tube and found it inconsistent with a fracture caused by shock loading,
which was the Secretary’s theory (Tr. 244-245). In Denaburg’s opinion, the torque tube was
under-designed for fatigue (the repetitive lifting to which the loader’s torque tube was
subjected). When asked if the fishplating played a part in the failure of the boom, Denaburg
replied:
If it had any effect, certainly that effect would be that it would add weight
which on a marginal at best design, then certainly it would enhance or create
a shorter time to failure. How much shorter, I don’t know, but it certainly
didn’t cause that fatigue crack to propagate because that was there (Tr.
245-246).
The torque tube of the trash loader also failed for users other than WM, both before and
after the June 1992 accident, even though the other users had not reinforced the torque tube
as had WM (Tr. 47, 63-64). These facts support the conclusion reached by Denaburg that
fishplating played an insignificant role in the cause of the accident.
WM welded reinforcements for other parts of the trash loader besides the boom (Tr.
33, 35-36). Reinforcement for the torque tube was not an in-house procedure but was
performed by a welding shop (Tr. 179-180). The Secretary does not allege that all
reinforcements made to the trash loader were inherently hazardous. Hence, the Secretary
emphasized the cause of the accident, which, it is found, does not support the Secretary’s
position.
Further, WM was not aware that failure of the torque tube could result in its
breaking out of its housing. It was the fact that the torque tube actually separated that
caused the crushing accident on June 13, 1992. Before that tragic event, breaks in the
torque tube merely caused the boom to cease rotating from left to right (Tr. 206-207).
Although it was to learn of a similar incident, not even the manufacturer, Petersen, knew
prior to the accident that its torque tube could break loose from the trash loader’s base
8
(Tr. 64). Petersen later devised a large safety ring and hook assembly for its trash loader
to prevent a broken torque tube from being pulled out of the base (Tr. 65).
To illustrate that modifications to cranes should not be lightly undertaken, the
Secretary referenced 5 1926.550(a)(16) (re q uiring manufacturer’s approval for additions to
cranes which affect capacity or safety). Accepting this fact, however, does not accord the
evidence additional weight regarding the particular modification made in this case. Although
not appearing to be the best business practice, the addition of welded steel to the torque
tube was not shown to be either a hazard or recognized as such by WM or the industry.
The Secretary has failed to establish that WM violated 0 5(a)(l) of the Act.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing, it is hereby ORDERED:
That the citation alleging a serious violation of 5 5(a)(l) is vacated.
NANCY J. SPIES
Judge
Date: June 30, 1994
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