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The Occupational Safety and Health Review Commission vacated a citation against a marine construction company stemming from the deaths of two workers after ruling that the U.S. Occupational Safety and Health Administration cited a violation of the incorrect standard.
In U.S. Department of Labor v. Healy Tibbitts Builders Inc., the commission held that the incident was wrongly cited as a violation of the general duty clause.
While employees of Healy Tibbitts Builders, an Aiea, Hawaii-based marine construction company, were working on a barge for the U.S. Navy in Pearl Harbor, a large buoy that had been suspended from a crane on an adjacent barge fell and struck four workers. Two were killed and the other two were seriously injured. OSHA conducted an inspection after the incident and issued a five-item serious citation. Two items were later vacated.
Healy Tibbitts sought review of one citation alleging violation of the Occupational Safety and Health Act’s general duty clause, but an administrative law judge affirmed the citation on the basis that two of the workers were exposed to struck-by hazards by working under a load suspended by a crane. Healy Tibbitts appealed to the commission, which vacated the citation.
The commission ruled that the clause was preempted by a provision of OSHA’s cranes and derricks in construction standard. The commission noted that while employees are generally prohibited from being in the fall zone of a load suspended by a crane, Healy Tibbitts argued that the OSHA crane standard applied — not the general duty clause.
The administrative law judge had ruled that the crane standard did not apply because the workers who were struck were on a separate barge adjacent to the one that held the crane involved in the accident. The commission found ambiguity as to whether having separate barges changed the applicability of the crane standard.
The commission said the Secretary of Labor should have cited the compliance with the crane standard to determine whether the workers were “within the fall zone” rather than the general duty clause, and vacated the order.