Marino Midwest, Inc.

Plain-English summary

Marino Midwest, an underground construction contractor, used a Bucyrus-Erie crawler crane to hoist loads to workers at the bottom of a shaft in Evanston, Illinois. OSHA cited the company because the crane lacked a limit switch to prevent the load from overtraveling past the boom tip, in violation of 29 C.F.R. § 1926.800(t)(2). The company argued its anti-two-block alarm system was just as effective, but that alarm was not even connected at the time of the inspection. Administrative Law Judge Sidney J. Goldstein affirmed the citation, holding that a limit switch physically prevents overtravel while an alarm only warns the operator and needs human intervention, so the alarm is not the equivalent the standard demands. He added that an employer who believes its alternative is as good must apply for a variance rather than simply substitute its own method. The judge reduced the penalty from the proposed $2,500 to $2,000 after weighing the statutory factors, noting the load was lifted only 10 to 15 feet and the device was fixed right after the inspection.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.800(t)(2)
• Outcome: Citation affirmed; penalty reduced from the proposed $2,500 to $2,000.
• Key point: An unconnected or merely alerting alarm is not the equivalent of a required crane limit switch. An employer who wants to use an alternative safety method must obtain a variance, not decide on its own that the substitute complies.

Full text (OSHRC public release)

L




                                             UNITED STATES QF AMERICA
                      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                              One Lafayette Centfe
                                        1120 20th Street, N.W. - 9th Floor
                                           Washington, DC 200364419


    PHOE
    COM@02)606-5100
    m@02)60&5100

                 SECRETARY OF UBOR
                             Complainant,
                       v.                                                    OSHRC DOCKET
                                                                             NO. 93-2875
                 MARINO MIDWEST INC.
                             Respondent.


                                      NOTICE OF DOCKETING
                                OF ADMINISTRATIVE UW JUDGE’S DECISION
                      The Administrative Law Judge’s Report in the abve referenced case was
                 docketed with the Commission on September 30,1994. The decision of the Judge
                 will become a final order of the Commission on November 1, 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 b the Executive Secretary on or before
                 October 1!i, 1994 in order to ermit su&lcient time for its review. See
                 Commission Rule 91,29 C.F.Ii 2200.91.
                                                 l




                     All further pleadings or communications regarding this case shall be
                  addressed to:
                                        JZxecutiveSecretary
                                        Occupational Safety and Health
                                         Review Commission
                                        1120 20th St. N.W., Suite 980
                                        Washington, DC. 20036-3419
                  Petitioning parties shah also mail a copy to:
                                         Daniel J. Mick, Esq.
                                         Counsel for Regional Trial Liti ation
                                         Office of the Solicitor, U.S. DOc
                                         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 th[e Department of Labor. Any party
                  havmg questions about review nghts may contact the Commission’s Executive
                  Secretary or call (202) 606-5400.
                                                        FOR THE COMMISSION


                 Date: September 30, 1994               Rai H. Darling, Jk! I -
                                                        Executive Secretary
DOCKET NO. 93-2875
NOTICE IS GIVEN TO THE FOLLOWING:


Daniel J. Mick, Esq.
Counsel for Re l  onal Trial Liti ation
Office of the Sof l
                  citor, U.S. DO%
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210



John H. Secaras, Esq.
Re lonal Solicitor
O&e of the Solicitor U.S. DOL
230 South Dearborn St.
Chicago, IL 60604



C. Jeffrey Thut, Esq.
Hall, Roach, Johnston, Fisher &
BOllIIUUl
20 South Utica Street
Waukegan, IL 60085



Sidney J. Goldstein
Administrative Law Jud e
Occupational Safety an d Health
 Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3584




00103073037:05
                                    UNKED STATES OF AMERICA
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1244 N. Spew Boulevatd
                                           Room 250                ..
                                  Denver, Colorado 80204-3582




SECRETARY OF LABOR,
     complainant,

       v.                                                  OSHRC Docket No. 93-2875

MARINO MIDWEST, INC,

       Respondent.



APPEARANCES:

              Leonard Borden, Esq, Of&x of the Solicitor, U.S. Departmmt of Labor,
                     Chicago, Illinois

              C Je5ey TM, Esq., Hall, Roach, Johnston, Fisher & Bollman, Waukegan, Illinois


Before:       Administrative Law Judge Sidney J. Goldstein


                                 DECISION AND ORDER

       This is an action by the Secretary of Labor against Marina Midwest Corporation to
enforce a citation issued by the Occupational Safety and Health Administration for the
alleged violation of a regulation adopted under the Occupational Safety and Health Act of
1970 relating toahe operation of a crane. The controversy arose after a compliance officer
of the Administration inspected a workplace of the Respondent, concluded that the company
was in violation of the regulation found at $29 CFR 800(t)(2), and recommended that the
citation be issued. The employer disagreed with this finding and filed a notice of contest.
After a complaint and answer were filed with this Commission, a hearing was held in
Chicago, Illinois.
         The citation charged that:
         Cranes were not equipped with a limit switch to prevent overtravel at the
         boom tip:

         (a) Shaft in 2200 block of Main Street,Evanston, II - Bucyrus Erie Crawler
         crane 30B used for hoisting loads to workers at the bottom of the shaft had
         an inoperative anti-two block device.
  in violation of the regulation found at 29 CFR ~1926.800@)(2)which provides:

         Cranes shall be equipped with a limit switch to prevent wertravel at the
         boom tip l * l.
         Testimony at the hearing disclosed that the company is engaged in underground
  constrwtion and utilized a crane descnii    as a Bucyrus-Erie #30 in its hoisting opperations.
  A compliance officer for the Administration inspected the worksite and ascertained that this
  equipment did not contain a limit switch at the boom tip, a device which prevents overtravel
  of the load hook or headache M beyond the boom tip. The purpose of the limit switch is
  the same as an anti-two block instrument. He considered the lack of a limit switch to be a
  violation of the regulation in contesL
         During the inspection, the compliance officer was informed that there was no limit
  switch on the crane, but the crane was equipped with an alarm system which would sound
  if a two block situation occurred. However, this safety feature was not connected, resulting
  in the absence of any alarm system. In the opinion of the offiar the alternative alarm
  system if utilized merely alerted the operator, necessitating a manual disengagement of the
                                                                         t
  hoisting controls. ’
         Upon further examination, the compliance officer testified that the boom was about
  50 feet above the ground, and the load was approximately 10 to 15 feet above ground
  Personnel were not lifted by the crane. He compared the difference between a limit switch
’ and the Respondent’s unconnected alarm system by noting that the former prevented
  overtravel while the latter merely gave a signal to the operator, requiring human intervention
  to prevent a mishap.




                                                2
       A safety consultant for the Respondent testifjed that he familiarized himself with the
regulation in issue after the inspection took place. He agreed that to be in compliance with
the regulation the crane would need a limit switch. However, in his opinion, the anti-two
block device module on the Respondent’s crane was as effective as a limit switch because
it automatical@ warned the operator of an approaching two block condition through the
audl’ble alarm and warning light flashes. He also believed Respondent’s alarm system
complied with the regulation. After the inspection the Respondent co~ected the antidwo
block mechanism.
       As previously noted, the regulation provides that cranes in underground construction
shall be equipped with a limit switch to prevent wertravel         at the boom tip.      The
uncontradicted evidence at the hearing established that the crane in issue was not equipped
with a limit switch. Thus, there was a violation of the regulation. Further, the Respondent’s
                    i
anti-two black system is not the equivalent of a limit switch because the latter prevents
overtravel of the boom tip while the block system merely alerts the crane operator and
requires intervention to prevent an accident. In any event, the Respondent’s safety device
was not connected and therefore not operational. The citation is therefore aBirmed.
       An employer’s good faith belief that its alternative program is as good as or superior
to the regulation’s requirements is irrelevant to the question of whether the regulation was
violated. The Act provides a mechanism for an employer to avoid compliance with OSHA
regulationsand instead provide its own alternative program to accomplish the same goal as
the regulations. This mechanism is a variance or exemption from OSHA’s mandatory
requirements for employers. In this case the Respondent did not ap$y for a variance.
       The Secretary recommended a penalty of $2,500.00. The Respondent urges that the
penalty is excessive in that the boom was approximately 50 feet in the air while the loads
were lifted no higher than 10 to 15 feet, thereby reducing the danger to the thrw men
working in the underground area. In addition, the anti-two block system was connected
immediately after the inspection.




                                             3
        After a conbideration of the statutory criteria, I conclude that a penalty of $2,000.00
is in order. Accordingly, the citation is AFFIRMED with a penalty of $2,000.00.




                                                                 Judge, OSHRC

Date&     September 23, 1994