Midwest Generation, LLC, and its successors

Plain-English summary

Midwest employees helped a contractor hoist 25-foot wooden I-joists inside a power plant using a pneumatic winch and nylon sling. A joist slipped from the sling, fell down the hoist bay, and struck and killed the employee signaling the winch operator. The judge affirmed three sling violations because the slings were not designated for inspection, were unmarked, and included one with visible tears, but grouped them at a $100 penalty because the light load made sling failure unlikely. He also affirmed a serious hoist-operation violation because the winch had not received regular inspection and the operation carried loads over employees, assessing $5,000. A general duty allegation about using a single choker hitch was vacated because OSHA did not prove recognized hazard or feasible abatement, and three asbestos items were vacated for lack of employer knowledge.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.251(a)(6), 1926.251(e)(1)(ii), 1926.251(e)(8)(iii), 1926.553(a)(4), 1910.1001(j)(2)(i), 1910.1001(j)(4)(i), and 1910.1001(k)(1); 29 U.S.C. § 654(a)(1)
• Outcome: Three sling items and one hoist item affirmed; general duty and three asbestos items vacated; $5,100 total penalty assessed.
• Key point: An employer joining a contractor's hoisting operation must inspect the slings being used and comply with the winch manufacturer's inspection and no-loads-over-people requirements.

Full text (OSHRC public release)

                                              United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                         1244 Speer Boulevard, Room 250
                                          Denver, Colorado 80204-3582

SECRETARY OF LABOR,
Comp lainant,

                         v.                                 OSHRC DOCKET NO. 00-1362

MIDWEST GENERATION, LLC, and its
successors,
Respon dent.

APPEARANCES:
For the Co mplainant:
Robert E . Mann, E sq., Francz ek Sullivan P C, Chicag o, Illinois

   For the Re sponde nt:
            Ruben R . Chapa, E sq., Barb ara Gold berg, Esq ., Office of the So licitor, U.S. D epartmen t of Labor,
            Chicago , Illinois

Before: Administrative Law Judge: James H. Barkley

                                         DECISION AND ORDER

   This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Midwest Generation, LLC, and its successors (Midwest), at all times relevant to
this action maintained a place of business at Midwest’s fossil fuel power plant at 1800 Channahon
Road, Joliet, Illinois. On December 22, 1999, Midwest was involved in hoisting materials for the
erection of a platform and associated scaffolding, when an accident resulted in the death of one of its
employees. Respondent admits it is an employer engaged in a business affecting commerce and is
subject to the requirements of the Act.
Following the accident on December 22, 1999, the Occupational Safety and Health
Administration (OSHA) began an inspection of Midwest’s Joliet plant. As a result of that inspection,
OSHA issued citations to Midwest alleging violations of the Act, and proposing civil penalties. By
filing a timely notice of contest Midwest brought this proceeding before the Occupational Safety and
Health Review Commission (Commission).
The original citations in this matter were issued under the general duty clause, §5(a)(1) of the
Act, and under Part 1926, which pertains to construction. In its answer, Midwest denied the
applicability of the cited standards, maintaining that it was not in the construction industry. On
February 14, 2001, this judge granted Complainant’s motion to amend the citations; Complainant was
given leave to allege, in the alternative, violations of the general industry standards at Part 1910.
On March 6-7, 2001, a hearing was held in Chicago, Illinois. At the hearing, Midwest
withdrew any contention that its employees were not engaged in construction (Tr. 327). The parties
have submitted briefs on the issues cited under Part 1926, noting that the alternative charges under Part
1910 are now moot (Complainant’s Post-Hearing Brief, p. 2). Also at the hearing, Complainant
moved to amend willful citation 2, item 2 to delete allegations relating to the provision of radios to all
affected employees (Tr. 326). The amendment to citation 2, item 2 was approved in this judge’s Order
of April 12, 2001, and is reflected in the text below.
Facts
Lennard Coleman, Midwest’s corporate vice president, testified that Midwest acquired its Joliet
plant from Commonwealth Edison of Illinois (ComEd) on December 15, 1999, seven days prior to the
OSHA inspection (Tr. 346). According to Mr. Coleman, during its pre-purchase inspection of the
ComEd plant, Midwest discovered that the plant contained seamed reheat piping. Coleman stated that
seamed piping, which was commonly used during the 1960s, has since been found to be hazardous.
Defects in the seam welding have resulted in catastrophic failure of such piping in certain instances
(Tr. 350-54). In conjunction with its purchase of the ComEd plant, therefore, Midwest arranged for a
contractor, BMW, to replace seamed reheat piping in the plant (Tr. 354). BMW, in turn, entered into a
subcontract with United Goedecke to perform portions of the required work (Tr. 355).
William Hibler, Midwest’s maintenance planner, had in excess of 23 years experience with
ComEd (Tr. 284). Hibler was the maintenance planner with ComEd for six years prior to Midwest’s
acquisition of the plant (Tr. 283-84). As maintenance planner, Hibler acts as liaison between the
construction and maintenance crews, planning outages and assigning workers as needed (Tr. 284-85).
Hibler testified that he was aware that the reheat pipes were being changed out; his role in the project
was to assign Midwest employees to run the “chugger” for United Goedecke (Tr. 287-88, 292-93).
Goedecke needed the chugger, a pneumatic winch, to lift 25' wooden I-joists from the ground to the
eighth floor, where they were going to be used to construct scaffolding around a boiler (Tr. 31, 34, 43-
44, 60, 64, 169, 272). The chugger, belonged to Midwest; Midwest’s policy was to allow only its own
employees to operate its equipment (Tr. 310). On December 21, 1999, Hibler called Mike Marunde,
supervisor of the predictive maintenance department PDM, and told him that he needed
someone from his crew to run the chugger (Tr. 215-16, 295). Goedecke, however, was not ready to

                                                 2

used the chugger until the following day, December 22 (Tr. , 245). When Hibler called the PDM that
morning, Eugene Jagodzinski, an A-mechanic with the PDM group answered (Tr. 256, 268, 288-89).
Jagodzinski agreed to meet with United Goedecke to see what assistance they needed (Tr. 217, 295).
Jagodzinski has been an A-mechanic in mechanical maintenance for 22 years (Tr. 265).
Jagodzinski testified that it was customary for the mechanics to run equipment, such as fork lifts and
cranes, for outside contractors (Tr. 268). He has run the chugger approximately a dozen times in the
past (Tr. 274). Jagodzinski stated that after he got the call from Hibler, he and two other mechanics
with the PDM group, Anthony Panega, an A-mechanic/welder with 21 years experience, and Mike
Ready decided to work together on the job (Tr. 269, 314). The three stopped by the maintenance shop
to pick up radios and to ask Hibler’s permission to work together assisting United Goedecke (Tr. 270).
Hibler approved the participation of all three employees on the job: one to work on the eighth
floor; one to run the chugger; and one to act as signal man from the ground floor (Tr. 271, 307). Hibler
stated that he trusted Jagodzinski’s assessment of the job, and that it was common for Midwest to use
its own employees as signal men (Tr. 308).
Jagodzinski and Ready went on to meet with Goedecke’s personnel, while Panega went up to
the eighth floor (Tr. 257, 271-72, 315). Goedecke’s representative told Ready and Jagodzinski that
they were going to be lifting wooden I-joists up the chugger bay, i.e. the open area measuring
approximately 10 by 12 feet located between 71 and 72 boiler, to the eighth floor (Tr. 33, 257-58; Exh.
C-28). Ready was to work on the ground (Tr. 36). Panega would act as the radio signal man on the
eighth floor, relaying instructions to Ready on the ground floor (Tr. 37-38, 315). Jagodzinski would
run the chugger from its platform on the second floor (Tr. 34, 256).
In lifting the joists, Ready, and/or a Goedecke employee on the ground floor attached a sling to
a joist using a choker hitch (Tr. 36, 159, 258, 316; Exh. C-24). [To rig a choker hitch, the rigger wraps
the sling around the object to be lifted, in this case, an I-joist, and then threads one end of the sling
through a loop sewed into the end of the sling; the sling forms a noose around the joist (Tr. 105, 316;
Exh. C-22). The loop in the other end of the sling is then attached to the chugger’s hook and tackle
(Tr. 39, 258; Exh. C-25).] When Panega radioed Ready to send a load up, Ready signaled Jagodzinski
with his hands, and Jagodzinski raised the I-joist until it hung vertically from the choker down the
chugger bay (Tr. 259, 316). Ready then signaled Jagodzinski to stop the chugger so that a 25 foot tag
line could be attached to the joist (Tr. 259). When Ready gave him the signal, Jagodzinski resumed
winching the joist up (Tr. 45, 259, 316). Ready watched the joist go up (Tr. 207-08). When Panega
radioed Ready to stop, Ready would go into the chugger bay, where he could been seen by the winch

                                                  3

operator, and signal him in turn (Tr. 45, 187 259, 316). Two Goedecke employees on the eighth floor
would snag the I-joist and pull it on to the eighth floor landing (Tr. 45, 187). The chugger’s hook and
tackle were then lowered for the next joist, which had, in the interim, been cinched into a second sling
(Tr. 35-36, 260).
After seven or eight joists were successfully hoisted in this manner, the last joist slipped out of
the choke and fell down the chugger bay, striking Mike Ready and killing him (Tr. 41, 50, 317).
Alleged Violation of §1926.251 et seq.
Serious citation 1, item 1 alleges:

29 CFR 1926.251(a)(6): Each day before being used, the sling(s) and all fastening(s) were not
inspected for damage or defects by a competent person designated by the employer:

    a. On or about December 22, 1999, at the chugger/winch/drum hoist between number 71 and
    number 72 boilers, two nylon slings used to lift I-joists (25 feet) were not inspected before they
    were used.

    Serious citation 1, item 2 alleges:

29 CFR 1926.251(e)(1)(ii): Synthetic web sling(s) were not marked or coded to show the sling's rated
capacities for the type of hitch used:

    a. On or about December 22, 1999, at the chugger/winch/drum hoist between number 71 and
    number 72 boilers, two nylon slings used to lift I-joists did not have rated capacities or type of
    material marked or affixed to them.

    Serious citation 1, item 3 alleges:

29 CFR 1926.251(e)(8)(iii): Synthetic web sling(s) were not immediately removed from service when
snags, punctures, tears, or cuts were evident:

    a. On or about December 22, 1999, at a chugger/winch/drum hoist, a torn nylon web sling used
    to lift I-Joists had not been removed from service.

Facts
United Goedecke provided the two cited synthetic web slings, which were 14 and 20 feet long
respectively (Tr. 35, 62). It is undisputed that the cited slings were not marked with their rated
capacities (Tr. 47, 87). Visible tears were apparent in one of the slings in use on December 22, 1999
(Tr. 45-46; C-22).
Midwest admits that no one from Midwest inspected the slings, unless one of the hourly
employees took it upon himself to perform the inspection (Tr. 47). Mr. Hibler did not know whether

                                                 4

the slings were inspected; but testified that, generally, Midwest does not inspect other contractor’s
equipment (Tr. 298). Neither Mr. Panega nor Mr. Jagodzinski inspected the slings before using them
in conjunction with the pneumatic winch (Tr. 61, 68). OSHA Compliance Officer (CO) Leroy Ratliff
was unable to determine whether Mr. Ready inspected the slings (Tr. 171).
Midwest’s written safety program includes a provision requiring the inspection of its own slings
prior to each use (Tr. 7-74; Exh. C-11, C-19-p.71).
Discussion
Serious citation 1, item 1: Section 1926.251(a)(6) requires:
(6) Inspections. Each day before being used, the sling and all fastenings and
attachments shall be inspected for damage or defects by a competent person designated
by the employer. Additional inspections shall be performed during sling use, where
service conditions warrant. Damaged or defective slings shall be immediately removed
from service.

      Midwest admits that it failed to designate a competent person to inspect the slings that were to

be used in the hoisting operation that took place at Midwest’s plant on December 22, 1999. Though, in
its brief, Midwest argues that Mike Ready was competent to perform the required inspection, and may
have taken it upon himself to inspect the slings (Respondent’s Post Hearing Brief, p. 11), the standard
requires that employers using slings actually ensure that such inspections take place, by designating an
employee who will be responsible for examining the slings. This Midwest did not do.
Midwest argues that it did not need to perform its own inspection, because it was entitled to
rely on the inspection performed by the owner of the slings, United Goedecke. This argument must
fail.
An employer has a duty to exercise reasonable diligence in detecting and preventing unsafe
conditions to which its own employees may be exposed. See, e.g., Lee Roy Westbrook Const. Co., Inc.,
13 BNA OSHC 2104, 1989 CCH OSHD ¶28,465 (No. 85-601, 1989). In this case, Midwest owned the
winch being used in the lifting operation; Midwest’s employees were engaged in the common
undertaking with United Goedecke; Midwest had its own safety procedures associated with the use of
the winch and related components, specifically slings. Midwest clearly had sufficient expertise in, and
control over the working conditions to conduct the required inspection, and avoid the use of unsafe
slings.
It is true that an employer may, in some cases, rely on the assurances of a subcontractor that the
subcontractor will perform its work safely, and that the employer need not duplicate safety efforts taken
by the subcontractor. See; Sasser Electric and Manufacturing Co., 11 BNA OSHC 2133 (No. 82-178,

                                                  5

1994); Blount Intl. Ltd. (Blount), 15 BNA OSHC 1897, 1991-93 CCH OSHD ¶29,854 (No. 89-1394,
1992). An employer may not, however, assume a subcontractor has taken required safety precautions
without reasonable inquiry. Blount, supra. In this case, Midwest neither sought, nor received
assurances about the safety of United Goedecke’s equipment. Midwest’s representative, Hibler,
admitted that he had no idea whether the slings had been inspected prior to their use on December 22.
Because Midwest did not make reasonable inquiries into United Goedecke’s safety precautions,
or alternatively, fulfill its duty to protect its employees by exercising its own control over the work
conditions, the cited violation is affirmed.
Serious citation 1, item 2: Section 1926.251(e)(1)(ii) provides:
(e) Synthetic webbing (nylon, polyester, and polypropylene). (1) The employer shall
have each synthetic web sling marked or coded to show. . . (ii) Rated capacities for the
type of hitch.

   Serious citation 1, item 3: Section 1926.251(e)(8)(iii) provides:
   (8) Removal from service. Synthetic web slings shall be immediately removed from
   service if any of the following conditions are present.. . . (iii) Snags, punctures, tears or
   cuts;. . ..

   For the reasons discussed under item 1, above, items 2 and 3 are also affirmed.

Penalty
A separate penalty of $2,250.00 was proposed for each of cited violations.
It is well settled that the Commission has wide discretion in the assessment of penalties. The
Commission has found that it is appropriate to assess a single penalty for distinct but potentially
overlapping violations, and has done so in the past. See; Miniature Nut and Screw Corp., 17 BNA
OSHC 1557, 1996 CCH OSHD ¶30,986 (No. 93-2535, 1996), and cases cited therein. These three
violations arose because Midwest’s maintenance planner assigned Midwest employees to work with
United Goedecke without inquiring whether those employees would be using any of Goedecke’s
equipment and investigating the safety of any such equipment. The defects cited at items 2 and 3 were
readily apparent and would have been discovered by the inspection required under the standard cited at
item 1. Because of the close relationship of the cited violations, this judge believes that the three
items involving the slings should be combined for purposes of assessing a penalty.
CO Ratliff testified that the violations were “serious,” in that if one of the cited slings had
failed, causing a load to fall, the likely result would have been death or serious physical harm (Tr. 75,
92, 100). Midwest is a large company, employing more than 1,500 employees nationwide (Tr. 83). CO

                                                 6

Ratliff testified that Midwest received a 10% reduction in the proposed penalties for history, as it had
not received any citations within the past three years. Because a “willful” violation was alleged at the
same time as the three items at citation 1, no adjustment was made for good faith (Tr. 83).
The cited conditions were properly cited as serious. The gravity of the violation, however, was
overstated. Though two employees were exposed to the cited hazard for approximately an hour (Tr.
85, 91, 98), CO Ratliff admitted that the probability of an accident occurring as a result of the
violations was small (Tr. 75, 98). Because the I-joists being hoisted weighed only about 100 pounds,
the weight of the joists did not exceed even the damaged sling’s capacity (Tr. 60, 93-94). This judge
finds that the cited violations resulted only in a potential hazard, i.e., there was no danger of them
failing because their capacity was exceeded while lifting a load of only 100 pounds, as they were on
December 22, 1999. The gravity of the violation, therefore, is extremely low. Moreover, I find that
Midwest should have been given credit for good faith, since, as discussed below, none of the alleged
violations was shown to be willful.
Where the low gravity of a violation is the overriding factor, a penalty of as little as $100.00 has
been deemed appropriate for a “serious” violation. Flintco, Inc., 16 BNA OSHC 1404, 1993-95 CCH
OSHD ¶30,227 (No. 92-1396, 1993); Orion Construction, Inc., 18 BNA OSHC 1867; 1999 CCH
OSHD ¶31,896 (No. 98-2014, 1999). A single penalty of $100.00 will be assessed for citation 1,
items 1, 2 and 3.
Alleged Violation of §5(a)(1)
Willful citation 2, item 1 alleges:
Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer did not furnish
employment and a place of employment which were free from recognized hazards that were causing or
likely to cause death or serious physical harm to employees in that employees were exposed to:

    a. On or about December 22, 1999, at the chugger/winch/drum hoist area between boilers
    numbers 71 and numbers 72, wooden I-Joists (approximately 25 feet long) were lifted from the
    ground level to the eighth floor in an unsafe manner in that one nylon web sling in a choker
    hitch configuration was used instead of two slings to lift the I-Joists which were unbalanced
    horizontal loads. Employees were thereby exposed to injuries associated with falling loads.

Among other methods, feasible methods to correct these hazards are: 1. Use two slings when horizontal
loads such as I-Joists are hoisted.

Facts
It is undisputed that a single nylon sling in a choker hitch was used to hoist the cited I-joists.

                                                  7

Complainant maintains that Midwest had actual knowledge that the single nylon choker
constituted a hazard. Complainant introduces ComEd’s Safety Rule Book, which was retained by
Midwest, and which states at G-121.03.4 Rigging Loads: “At least two slings must be used, each
terminating at the lifting hook and at the load, when hoisting horizontal loads such as bars, beams, etc.”
(Tr. 101-02; Exh. C-19, p. 72). In addition, Complainant relies on the testimony of Michael Marunde.
Marunde testified that when he learned that his crew had been reassigned to assist United Goedecke on
December 22, he went to the chugger bay to ask how long the men would be unavailable (Tr. 206).
After speaking briefly to Mike Ready, Marunde looked up at the suspended load, which hung vertically
from a single sling in the chugger bay (Tr. 207, 221, 243, 248). Marunde testified that he had some
concerns about the load at the time (Tr. 223). Marunde stated that the joist did not seem secure to him
(Tr. 242). Marunde, however, had no training in load rigging, whereas he three men working with
Goedecke were trained to rig the winch, and routinely ran the winch. Marunde assumed that the
members of the hoisting crew knew what they were doing (Tr. 231, 244, 248, 250).
To show industry recognition, Complainant introduced Exhibit 49, a booklet on Rigging
Procedures put out by the United Brotherhood of Carpenters Apprenticeship and Training Fund of
North America. The booklet notes that a single choker hitch “does not provide full 360° contact with
the material. Therefore, do not use this hitch on loose material or loads that may slip out of the hitch”
(Exh. C-49, p. 1-14). Another industry publication, Bob’s Rigging & Crane Handbook, states that
the single choker hitch forms a noose in the rope that tightens as the load is lifted. . .and should not be
used to lift loose bundles from which material can fall or loads that are difficult to balance (Exh. C-51,
p. 150). Finally, Complainant relies on a drawing in a handbook called Scaffolding Introduction, in
which a stick figure is depicted hoisting a beam or pole by hand (Tr. 115; Exh. C-50, p.6-28). The
beam is attached at a single point, and is labeled ROP E AT TAC HED IN W RON G PLA CE. (Exh. C-50, fig. 6-
20). A second drawing shows the stick figure hoisting a beam with the ROPE ATTACH ED PROPERLY .
In that drawing the hoisting rope is attached to the beam or pole at one end; the rope is run down the
length of the load and attached a second time near the other end (Exh. C-50, fig. 6-20).
CO Ratliff acknowledged that obstructions in the chugger bay prevented the hoisting crew from
using two slings of equal length to lift the I-joists horizontally, and that because of the space limitations
the I-joists had to be lifted in a vertical manner (Tr. 104-05). Nonetheless, CO Ratliff testified that the
hoisting crew could have doubled the sling and still had two attachment points, or used two slings of
different lengths to ensure that the joist did not slip out of the hitch (Tr. 117).
Discussion

                                                  8

In order to prove a violation of section 5(a)(1) of the Act, the Secretary must show that: (1) a
condition or activity in the workplace presented a hazard to an employee; (2) the hazard was either
actually recognized by the employer, or generally recognized by the employer’s industry; (3) the hazard
was likely to cause death or serious physical harm; and (4) a feasible means existed to eliminate or
materially reduce the hazard. The evidence must show that the employer knew, or with the exercise of
reasonable diligence could have known, of the violative conditions. See, Pelron Corporation, 12 BNA
OSHC 1833, 1986 CCH OSHD ¶27,605 (No. 82-388, 1986); Tampa Shipyards, Inc., 15 BNA OSHC
1533, 1991-93 CCH OSHD ¶29,617 (Nos. 86-360, 86-469, 1992).
In this case, Complainant did not establish that Midwest’s use of a single nylon web sling in a
choker hitch configuration was recognized as a hazard, either by Midwest in particular, or the
construction industry in general. Complainant further failed to show that the use of two slings was a
“feasible” means of eliminating or materially reducing the hazard.
As a threshold matter, this judge finds that Midwest’s safety rule requiring two slings for
hoisting horizontal loads is irrelevant to any determination of Midwest’s recognition of a hazard in this
case. Midwest’s safety handbook sets forth a safe standard operating procedure for hoisting bars
and/or beams in a horizontal fashion. The record establishes that because of obstructions in the
chugger bay, there was no way to lift a joist as a balanced horizontal load. Where standard operating
procedures are infeasible, the general duty clause does not bar an employer from using alternative
means to accomplish its work, unless the employer knows the alternative means are likely to cause
death or serious physical harm.
The alternative means chosen in this case was a single choker hitch. The record establishes that
the single choker hitch is a recognized means of rigging some loads for hoisting. The winch operator,
Eugene Jagodzinski believed that the choker hitch was a safe method of lifting the joist (Tr. 267).
Jagodzinski testified that he had previously been involved in a similar operation, in which a single sling
was used to lower planks inside a condenser (Tr. 263). In that case the planks were lowered in a
vertical manner without incident (Tr. 263). Michael Marunde had no experience with the
chugger/winch, and knew nothing about rigging. He was not involved in the hoisting operation, and
his assumption that the A-mechanics and the Goedecke were performing their work safely was not
unreasonable. Marunde’s passing thoughts about the safety of the rigging are insufficient to establish
that Midwest’s actually knew that the single choker hitch was an unsafe method of hoisting I-joists.
Complainant has not shown that the cited hazard was actually recognized by Midwest.

                                                9

In retrospect, it is clear that the rigging method used in the cited circumstances was inadequate.
However, based on the materials presented at the hearing this judge cannot determine whether, prior to
this accident, the construction industry recognized that the use of a single choker hitch under those
conditions was hazardous. The documentary evidence is, at best, ambiguous. The industry literature
introduced by Complainant warns against use of the hitch for loose loads, loads “that may slip out of
the hitch,” or “loads that are difficult to balance.” Those terms are not defined, however, and it is not
clear from the examples provided, i.e., long loose bundles, circular pipes (Exh. C-51, p. 150), whether
a single choker hitch can safely be used to vertically hoist an irregularly shaped I-joist. Nor can this
judge rely on the testimony of CO Ratliff to establish industry practice. Ratliff, an industrial hygienist
with a degree in chemistry (Tr. 24-25), was not shown to have any expertise in construction or rigging.
Moreover, Ratliff’s abatement suggestions were at odds with the very materials the Secretary
introduced to prove hazard recognition, as discussed below. This judge accords Ratliff’s testimony
little weight. The Secretary has not shown that the cited hazard was generally recognized in the
construction industry.
Finally, Complainant failed to show that the use of two slings was “feasible,” i.e., was a safety
measure recognized by “knowledgeable persons familiar with the industry” as necessary under the
particular circumstances that existed at Midwest’s work site. See, Cerro Metal Products Division,
Marmon Group, Inc.12 BNA OSHC 1821, 1986 CCH OSHD ¶27,579 (No. 78-5159, 1986).
As noted above, CO Ratliff was not shown to have any particular expertise in construction in
general, or in rigging in particular; nonetheless, he was Complainant’s only witness in this matter.
Ratliff agreed that two slings of equal length could not have been used in the chugger bay, but
suggested that Midwest could have doubled the sling and attached both ends to the joist. This
procedure would have required Midwest to run the sling over the winch hook. Alternatively, Ratliff
suggested the crew use two slings of different lengths. According to Ratliff, either scenario would
provide two attachment points, but allow the joist to be lifted vertically. Complainant’s documentary
evidence, however, specifically warns against or flatly prohibits the alternative means advocated by CO
Ratliff. Midwest’s safety rules prohibit lifting a beam or bar using a single sling attached at two points
and “riding” over the hook (Exh. C-19, p. 72). Rigging Procedures states in a “Safety Note: Choker
hitches that form an angle of less than 45° are not recommended (Exh. C-49, p. 1-15). Bob’s Rigging
& Crane Handbook, cautions that if the double choker hitch is appropriate only if the supporting legs
are equal in length. (Exh. C-51, p. 150).

                                                10

The sole instance in which Complainant’s materials show a long object being correctly hoisted
in a vertical fashion involves a pipe or bar, lifted manually and secured with a single rope tied off in
two places. That diagram is found in a Scaffolding Introduction handbook (Tr. 115; Exh. C-50, fig.
6-20, p.6-28). Complainant introduced no testimony from which this judge might conclude that fig. 6-
20 is recognized as applicable to mechanical hoisting, or constitutes a feasible alternative to the single
choker hitch when using a winch and nylon web slings to lift beams or joists.
The occurrence of the December 22 accident, which is the subject of this matter, shows that
Midwest’s hoisting operation was, in fact, hazardous. The Secretary, however, failed to carry her
burden of proof in regard to the allegations contained in citation 2, item 1. Complainant showed
neither that the cited hazard was recognized as that term is defined in the case law, nor that the means
of abatement set forth were recognized in Midwest’s industry as necessary safety precautions.
Accordingly, citation 2, item 1 must be vacated.
Alleged Violation of §1926.553(a)(4)
On April 12, 2001, this judge granted Complainant’s motion to amend willful citation 2, item 2.
As amended, the citation alleges:
29 CFR 1926.553(a)(4): All base-mounted drum hoists in use did not meet the applicable requirements
for design, construction, installation, testing, inspection, maintenance, and operations, as prescribed by
the manufacturer:

   a. At a chugger/winch/drum hoist between number 71 and number 72 boilers- On or about
   December 22, 1999, the winch operator responsible for lifting I-Joists (25 feet) from the ground
   floor to the eighth floor did not follow the instructions and meet the requirements as prescribed
   by the manufacturer, in that the winch had not been inspected prior to being used, the operator
   lifted loads without having a thorough understanding of the proper methods for hitching loads,
   and loads were carried over people including the winch operator. Employees were thereby
   exposed to injuries associated with falling loads.

   The cited standard provides:

   All base mounted drum hoists in use shall meet the applicable requirements for design,
   construction, installation, testing, inspection, maintenance, and operations, as prescribed
   by the manufacturer.

Discussion
Winch had not been inspected prior to being used. The Parts Bulletin from the
manufacturer, Ingersol Rand, establishes the required inspection, maintenance, and operating
procedures for the chugger (Exh. C-12). The manual states that “[r]egular inspection procedures

                                                11

should be set up, rigidly adhered to and recorded by or under direction of a qualified person” (Exh. C-
12, p. 1).
CO Ratliff testified that Midwest’s records showed that the cited chugger/winch had last been
sent out for inspection in 1995 (Tr. 132). Midwest’s maintenance planner, Hibler, confirmed Ratliff’s
testimony; because the winch wasn’t used very often, it was sent out, rather than being inspected in
house. The last inspection was in 1995 (Tr. 299). Upon his inspection of the winch, CO Ratliff found
no defects other than an improperly loaded wire rope (Tr. 173). Ratliff did not believe that the defect
significantly affected the safety of the winch (Tr. 173).
The record establishes that there had been no thorough inspection of the cited winch/chugger
since 1995. Under no circumstances can four years be considered a regular interval. The winch was
not inspected in accordance with manufacturer’s specifications. This portion of the citation has been
established.
Operator did not understand the proper methods for hitching loads. The Parts Bulletin
requires that the winch operator “must thoroughly understand proper methods of hitching loads” (Exh.
C-12, p. 1). Complainant introduced no evidence regarding Jagodzinski’s, understanding of proper
hoisting techniques. Complainant relies entirely on Jagodzinski’s knowledge that a single sling was
being used to hoist the I-joists on December 22 (Complainant’s Post-hearing Brief, p. 24).
As discussed above, Complainant failed to show, by a preponderance of the evidence, that use
of a single choker hitch constituted a recognized hazard. Therefore, Jagodzinski’s failure to recognize
that the use of the single choker was hazardous cannot, in itself, establish that Jagodzinski did not
understand proper methods for hitching loads. In the absence of any other evidence of Jagodzinski’s
knowledge, this portion of the citation cannot be sustained.
Loads were carried over people. The winch’s operating instructions state, inter alia, “4.
Always stand clear of the load”, and “6. Never carry loads over people” (Tr. 133; Exh. C-12, p.2).
Jagodzinski testified that he thought Mike Ready was standing outside the chugger bay as he
signaled him (Tr. 261). Marunde testified that neither he nor Ready were standing directly under the
suspended load during their conversation (Tr. 238). Hibler, who walked by the chugger bay during the
lift, also testified that Ready was not standing directly under the load when he glanced over (Tr. 304-
05).
CO Ratliff testified, however, that piping in the chugger bay partially obscures the chugger
operator’s view of the ground floor (Tr. 54; Exh. C-29, C-30). According to CO Ratliff, Mike Ready
had to stand in the zone of danger beneath the chugger’s load in order to be seen by Mr. Jagodzinski

                                                12

(Tr. 54-55; Exh. C-29, C-30). United Goedecke workers told Ratliff that they observed Ready working
under the suspended load (Tr. 53-54). Ratliff’s accident investigation showed that Ready was struck, in
the chugger bay, by a downward blow from the truss (Tr. 50, 54; Exh. C-26, C-27). Jagodzinski
admitted that Ready was found in the chugger bay after he was struck (Tr. 261, 276).
CO Ratliff also testified that Jagodzinski was exposed to the danger of falling loads while
operating the chugger (Tr. 56-57). The chugger platform extends into the chugger bay itself; there is
no barrier or shield above the operator to protect him from falling loads (Tr. 57; Exh. R-9).
Jagodzinski stated that there were a “couple of pipes” above his head in the chugger bay, but admitted
that the pipes would not completely prevent a load falling down the chugger bay from striking him (Tr.
275, 278).
Both William Hibler and Michael Marunde, supervisory personnel with Midwest, were aware
of the hoisting operation in the chugger bay. The record establishes that because of the nature of the
December 22 operation, it was foreseeable that Mike Ready would step out into the bay to be seen
signaling and that Ready would be standing under the load at some point. The evidence shows that
Ready was, in fact, standing under the load when a joist fell, striking and killing him.
This judge finds that Midwest should, with the exercise of reasonable diligence, have been
aware that Ready was, or would likely be standing in the zone of danger under the suspended chugger
load while performing his assigned duties. The Secretary established the cited violation.
Willful
During the March 7, 2001 hearing, the willful characterization of this violation was stricken
(Tr. 342). Complainant moved for reconsideration of the dismissal, and the motion was granted.
Having reconsidered the matter, this judge finds that the Secretary did not prove that the cited
violations were willful.
The Commission has defined a willful violation as one “committed with intentional, knowing
or voluntary disregard for the requirements of the Act or with plain indifference to employee safety.”
Valdak Corp., 17 BNA OSHC 1135, 1136, 1993-95 CCH OSHD ¶30,759, p. 42,740 (No. 93-239,
1995), aff'd, 73 F.3d 1466 (8th Cir. 1996). Under Commission precedent, it is not enough for the
Secretary to show that an employer was aware of the conduct or conditions that constitute the alleged
violation; such evidence is already necessary to establish any violation. The Secretary must
differentiate a willful violation by showing that the employer had a heightened awareness of the
illegality of the violative conduct or conditions, and by demonstrating that the employer consciously
disregarded OSHA regulations, or was plainly indifferent to the safety of its employees. Propellex

                                                 13

Corporation (Propellex), 18 BNA OSHD 1677, 1999 CCH OSHD ¶31,792 (No. 96-0265, 1999),
citing, Hern Iron Works, 16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶30,046, p. 41,256-57 (No.
89-433, 1993).
In Propellex, the Commission noted that the Secretary must show that the employer was
actually aware, at the time of the violative act, that the violative conduct or condition was unlawful, or
that it possessed a state of mind such that if it were informed of the unlawful nature of the conduct, it
would not care, citing Johnson Controls, 16 BNA OSHC 1048,1051, 1993-95 CCH OSHD ¶30,018, p.
41,142 (No. 90-2179, 1993). The Commission went on to provide examples of an employer’s
heightened awareness, listing cases where an employer was previously cited for violations of the
standards in question, or was otherwise made aware of the requirements of the standards, and so was
actually on notice that violative conditions existed. Propellex, supra.
As a threshold matter, this judge notes that Midwest was shown only to have constructive,
rather than actual, knowledge of the cited violation(s).
Winch had not been inspected prior to being used. As noted, Midwest admits that Hibler
failed to set up a regular inspection schedule for the winch as is required in the bulletin (Tr. 145;
Complainant’s brief, p. 22-26). The record establishes that Hibler should have been aware of the
violation, in that he was somewhat familiar with the Parts Bulletin, and had read it back in 1995 when
he sent the winch out for repairs (Tr. 145).
Hibler may have been careless in his reading of the manual’s requirements, and in his failure to
formulate a regular, documented inspection plan for the winch; however, this judge cannot find that a
single reading of the bulletin gave Hibler a “heightened awareness” of his responsibilities in regard to
the winch. There is no reason to believe Hibler knew that his failure to follow the directives contained
in the Parts Bulletin constituted an OSHA violation. Moreover there is no reason to believe that if he
had known, he would not have cared. At no point did Hibler indicate that he considered, but rejected
the idea of scheduling periodic inspections. There is there no evidence that Hibler recognized that his
failure to adhere to the specifics of the Parts Bulletin would endanger employee safety, but did not care.
CO Ratliff admitted that the condition of the winch was not hazardous, despite the absence of regular
inspections. The facts do not establish either Hibler’s heightened awareness of the illegality of his
actions, or his indifference to employee safety.
Loads were carried over people. Complainant did not introduce any evidence showing that
Midwest’s supervisory personnel actually knew that Ready was or would be working under loads being

                                                14

hoisted. It was not shown that either Marunde nor Hibler intended for Ready to stand under the load
(Tr. 239, 303). Complainant established only Midwest’s constructive knowledge of this violation.
To establish willfulness, Complainant relies solely on Hibler’s failure to provide the winch
operators with a copy of Ingersol Rand’s Parts Bulletin. Hibler’s failure to provide the bulletin in this
case had no repercussions. Midwest’s safety handbook also prohibits standing under loads (Tr. 182;
Exh. C-19, p. 63). Each of Midwest’s employees had a copy of the handbook (Tr. 182). Jagodzinski
testified that he knew that both he and Mr. Ready knew that they should not stand underneath the
winch load (Tr. 266-67).
Because Midwest already had a rule prohibiting the cited conduct, and because the Secretary
failed to establish that Midwest had any actual knowledge that the cited employee was violating the
work rule, this judge cannot find that Midwest had a heightened awareness of the violative conditions,
or was indifferent to employee safety.
Penalty
A penalty of $63,000.00 was proposed, based on this item’s willful characterization. OSHA’s
normal procedure is to multiply the gravity based penalty by a factor of ten for a willful violation. This
would indicate that the gravity based penalty for this item was $6,300.00. Since the violation was
deemed willful, no credit was given for good faith.
The cited violation was shown to be serious in nature. Because Mr. Ready’s death was
attributable to his position under the winch’s load, the gravity of the violation was high. This judge
finds that credit for good faith should be accorded, inasmuch as Midwest had owned the facility for
only seven days prior to the accident, and had no opportunity to familiarize itself with ComEd’s safety
program, or to update employee training.
Taking into account the relevant factors, this judge finds that a penalty of $5,000.00 is
appropriate.
Alleged Violation of §1910.1001 et seq.

   Other than serious citation 3, item 1 alleges:

29 CFR 1910.1001(j)(2)(i): Building and facility owners did not determine the presence, location, and
quantity of asbestos-containing material (ACM) and/or presumed asbestos containing material (PACM)
at the work site:

   a. On or about December 22, 1999, on the second floor at the chugger (or winch) operating
   platform between the boilers, material that contained 10% asbestos was on the floor, and the
   employer had not determined the location and quantities of ACM at the work site.


                                               15

Other than serious citation 3, item 2 alleges:

29 CFR 1910.1001(j)(4)(i): Warning labels were not affixed to all raw materials, mixtures, scrap,
waste, debris, and other products containing asbestos, tremolite, anthophyllite, or actinolite fibers, or to
their containers:

    a. On or about December 22, 1999, on the second floor at the chugger (or winch) operating
    platform between the boilers, material on the platform Door contained 10% asbestos and a
    warning label was not affixed to it.

    Other than serious citation 3, item 3 alleges:

29 CFR 1910.1001(k)(1): All surfaces were not maintained as free as practicable of accumulations of
dusts and waste containing asbestos, tremolite, anthophyllite, or actinolite:

    a. On or about December 22, 1999, on the second floor at the chugger (winch) operating
    platform between the boilers, material contained 10% asbestos was on the floor of the platform.

Facts
CO Ratliff testified that, during the course of his investigation, he noticed a single piece of
insulation in plain view on the chugger platform (Tr. 147-48). Michael Marunde confirmed that
Midwest was engaged in insulation clean-up on December 22, 1999 (Tr. 227). Moreover, Midwest
stipulated that, upon testing, the insulation was found to contain 10% asbestos (Tr. 26, 146).
Ratliff admitted, however, that he did not know where the piece of insulation came from, how
long it had been on the chugger platform, and was unable to determine whether Midwest could, with
the exercise of reasonable diligence, have known of the presence of this material on the second floor
(Tr. 152, 155). Marunde was involved in cleaning up bales of old asbestos insulation on the 6th through
the 9th or 10th floors in the 81-82 boiler area (Tr. 227, 250-51).
After removing a sample, Ratliff left the insulation on the chugger platform; he admitted he did
not know how the remainder of the insulation was eventually disposed of (Tr. 156).
Discussion
Other than serious citation 3, item 1: Section 1910.1001(j)(2)(i) provides:
Building and facility owners shall determine the presence, location, and quantity of
ACM and/or PACM at the work site. Employers and building and facility owners shall
exercise due diligence in complying with these requirements to inform employers and
employees about the presence and location of ACM and PACM.

    The record establishes: 1) that asbestos clean up was taking place in the 81-82 boiler area on

December 22; and 2) that during CO Ratliff’s inspection of the second floor chugger platform at 71-72

                                                 16

boiler area, he found a single piece of insulation. The record is devoid of any evidence that Midwest
failed to exercise due diligence in determining the presence, location and quantity of ACM and or
PACM at the Joliet plant. Complainant introduced no evidence about Midwest’s asbestos removal
plan, or how it was implemented. The CO had no idea how the single piece of asbestos insulation
came to be so far from the clean-up area. This judge cannot find, from the bare fact that asbestos
containing insulation was being removed from other areas of the plant, that Midwest should have been
alert to the possibility of a single piece of asbestos insulation turning up on the second floor chugger
platform. The CO himself admitted he did not know how long the insulation had been on the platform,
and could not determine whether, with the exercise of due diligence, Midwest could have known of the
presence of the material.
In its brief, Complainant reiterates the Secretary’s belief that “a demonstration of actual or
constructive employer knowledge is not properly an element of her prima facie case.” The Secretary’s
position would impose strict liability on employers, and has long been rejected. It is well established
Commission precedent that in order to prove a violation of section 5(a)(2) of the Act, the Secretary
must show by a preponderance of the evidence that the cited employer either knew or could have
known of the cited condition with the exercise of reasonable diligence. See, e.g., Walker Towing
Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p.39,157 (No. 87-1359, 1991).
Because Complainant failed to show that Midwest had either actual or constructive knowledge of the
presence of the AMC on the chugger platform, this item is vacated.
Other than serious citation 3, item 2: Section 1910.1001(j)(4)(i) provides:
Warning labels shall be affixed to all raw materials, mixtures, scrap, waste, debris, and
other products containing asbestos fibers or to their contains. . ..

   Other than serious citation 3, item 3: Section 1910.1001(k)(1) provides:
   All surfaces shall be maintained as free as practicable of ACM waste and debris and
   accompanying dust.

   For the reasons set forth under item 1 above, other than serious citation 3, items 2 and 3 are also

vacated.

                                                17

ORDER

1. Serious citation 1, items 1, 2 and 3 alleging violations of §§1926.251(a)(6), (e)(1)(ii), and
   (e)(8)(iii) are AFFIRMED and a combined penalty of $100.00 is ASSESSED.

2. Willful citation 2, item 1 is VACATED.

3. Citation 2, item 2 is AFFIRMED as a “serious” violation of the Act, and a penalty of $5,000.00
   is ASSESSED.

4. Other than serious citation 3, items 1, 2 and 3 are VACATED.

                                                /s/
                                                James H. Barkley
                                                Judge, OSHRC
   

Dated: June 5, 2001

                                               18