BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

MARIN STORAGE AND TRUCKING
801 Lindberg Lane
Petaluma, CA 94952

 

                              Employer

 

 

Docket No.

00-R1D2-919

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by Marin Storage and Trucking (Employer), makes the following decision after reconsideration.

JURISDICTION

On September 28, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted a plain view inspection at a place of employment maintained by Employer at Highway 880 & San Carlos, San Jose, California (the site). On March 23, 2000, the Division issued a citation to Employer alleging a general violation of section1 4994(a) [crane improperly operated], with a proposed civil penalty of $525.

Employer filed a timely appeal contesting the existence of the violation, its classification, the abatement requirements, and the reasonableness of the proposed penalty.

A hearing was held before an Administrative Law Judge (ALJ) of the Board, in San Jose, California. Ron E. Medeiros, Attorney, represented Employer. Ralph Allen, District Manager, represented the Division.

On December 15, 2000, the ALJ issued a decision denying Employer's appeal and assessing a civil penalty of $525.
On January 19, 2001, Employer filed a petition for reconsideration. The Division did not file an answer. The Board granted Employer’s petition on March 9, 2001.

EVIDENCE

Compliance Safety Engineer Tim El Shammaa (El Shammaa) testified for the Division that he observed a Grove TMS750B mobile crane in operation. The crane, which was off the ground and operating on its outriggers in the left-hand lane of San Carlos Road, was being used to lift a palm tree into a hole dug in the median divider. El Shammaa determined that the crane was not set up properly because the outriggers on the side by the median were fully extended, while the outriggers on the traffic lane side were extended approximately fifty percent.

El Shammaa looked at the crane's load charts and the operator's manual, but could not find a chart configuration that allowed for partial extensions of the outriggers on one side and full extensions on the other. Load charts instruct the operator how to configure the crane to lift a designated weight. Had the load been lifted with the rubber tires on the ground, it would have been within the crane's capacity as set forth in the load chart for operating “on rubber” with the tires on the ground. El Shammaa testified that the load could have been lifted without the use of outriggers. However, because outriggers were used, the tree could have only been lifted safely with all outriggers fully extended.

According to El Shammaa, mobile cranes can operate on rubber tires without using the outriggers, or on the outriggers, which provide additional stability for the crane. Some cranes can be operated on the outriggers without them being fully extended, but El Shammaa has never seen a load rating chart where the outriggers on one side were fully extended while those on the other side were only extended fifty percent. El Shammaa also stated that he could not recall seeing a load rating chart on the crane that stated that the outriggers had to be fully extended on both sides.

El Shammaa testified that an excerpt from a “rubber chart” in the operator’s manual for a TMS750B mobile crane stated: “WARNING: Outrigger beams must be fully extended and stabilizers properly set when rotating superstructure over the side. Do not rotate superstructure over the side while on rubber.” The operator’s manual for the crane was not obtained from Employer nor produced into evidence.

Steve Hoyt (Hoyt) testified for Employer that as Employer's project manager he is familiar with the TMS700B Grove crane and the 750B crane that Employer operated at the San Carlos site. He has operated, inspected and certified mobile cranes during past employments. Hoyt identified the load charts for a Grove crane TMS700B, which apply to Employer's Grove 750B crane according to the manufacturer. A load chart determines the crane's capacity. The crane, which has two outriggers on each side and one in front, can be operated on rubber tires, on outriggers that are not extended, on outriggers that are partially extended (50%), or on outriggers fully extended.

The crane was configured to lift the palm tree with one set of side outriggers extended fifty percent and one set of outriggers extended fully to allow for more crane stability. Increasing the crane's load capacity on outriggers by extending the outriggers allows it to lift more weight safely. Based upon the weight of the load (palm tree), it could have been lifted “on rubber.” Extending all of the outriggers partially (50%) would provide more stability than lifting “on rubber." In Hoyt's opinion, increasing the outriggers on the load side by an additional 50% would comply with the crane's load chart, since it increases the crane's load capacity. Hoyt, however, stated he had never seen a load chart for a 750B Grove crane that allows for 50% percent extension of the outriggers on one side and full extension on the other side.

On cross-examination, Hoyt agreed that a crane operator must follow the crane manufacturer's load chart configurations. However, he did not agree that altering the outriggers' extension by fifty percent on one side and one hundred percent on the other would "stress" the crane's apparatus. None of the load charts prohibit such a configuration.

There was no evidence presented regarding the weight of the palm tree lifted by the crane.

ISSUE

Did the Division establish a violation of section 4994(a)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Failed to Establish that the Crane Operated By Employer Was Not Properly Bearing on Its Outriggers As Required in Section 4994(a).

Section 4994 is included in Article 98 - Operating Rules, of Group 13 – Cranes and Other Hoisting Equipment, contained in the General Industry Safety Orders. Section 4994(a) provides:

Cranes shall not be operated with wheels or tracks off the ground or working surface at any time unless properly bearing on outriggers. Power actuated jacks (outriggers), where used, shall be provided with means to prevent loss of support under load. (italics added)

“Crane” is specifically defined as “[a] machine for lifting or lowering a load and moving it horizontally, in which the hoisting mechanism is an integral part of the machine.” (Section 4885, Definitions)

The language used in section 4994(a), read in its entirety, reveals that the Standards Board intended to establish a requirement for a stable support point for cranes performing hoisting operations. The section provides a general requirement that a crane’s wheels must be resting on the ground or working surface during operation with the only qualification (or alternative requirement) where the crane is properly bearing on outriggers. Where outriggers are used, section 4994(a) further requires that a means to prevent loss of support under the load must be provided.2 The words used by the Standards Board establish a purpose of insuring stable support of the crane on the ground or working surface.

Based upon the stated intent of section 4994(a), we find that the term “properly bearing” in the section is intended to mean that a crane operated with its wheels off the ground must be “completely or thoroughly supported” on outriggers in order to comply with the alternative requirement contained in section 4994(a).

The Division has the burden of proving the existence of the violation, including the establishment of each element of the violation (Howard J. White, Inc., Cal/OSHA App. 78-741, Decision After Reconsideration (June 16, 1983).) There is no dispute that the crane was not resting on its wheels during its operation in the instant case and that the outriggers (two on each side) were extended 100% on one side of the crane and 50% on the other side of the crane. The citation cited section 4994(a) and alleged that a crane was “observed in operation” and that “[t]he outrigger beams were not fully extended.”

Applying the words used in the regulation, we cannot interpret the section to affirmatively require that outriggers be uniformly extended in order for the crane to be “properly bearing” on its outriggers. We previously held that a partial extension of one outrigger along with three fully extended outriggers did not violate section 4994(a) where the crane was operated with its wheels off the ground and “bearing” on all four outriggers. (Keir Krane, Inc., Cal/OSHA App. 91-863, Decision After Reconsideration (Dec. 30, 1992).)

Here, the ALJ determined that, based upon a preponderance of the evidence, the crane was not properly bearing on its outriggers because Employer failed to comply with the crane manufacturer’s load chart configurations for operating a crane with its rubber tires off the ground. The load charts do not indicate any exception for outriggers extended an additional 50% for one side (or conversely, retraction on one side from a fully extended position). The ALJ determined that the crane’s load configuration chart only provided load ratings for outriggers extended at 100% or 50%, but not in any combination of varied extensions of the outriggers.

Consistent with our analysis in Keir Krane, we similarly find here that the load ratings in the crane’s load configuration chart provide the crane manufacturer’s established maximum load that can safely be lifted by the crane at the extension distances provided in the load charts. Here, the chart sets maximum load ratings for the crane using outriggers at the respective outrigger extension distances with outriggers at points of 50% and 100% of full extensions, and accounts for various boom angles and lengths. Section 4994(a), however, addresses the support of the crane during operation requiring that the crane be properly bearing, i.e., completely and thoroughly supported, on the outriggers.3

We believe that if the Standards Board intended the load rating chart to govern whether the crane is “properly bearing” on its outriggers, it would have referred expressly to the manufacturer’s load rating specifications in some way in section 4994(a) which it did not do. We cannot assume that the word “properly” in section 4994(a) simply incorporates the manufacturer’s load rating chart, especially in the context of a requirement that only addresses stable support of the crane during its operation.

While the use of outriggers impacts upon the manufacturer’s rating chart providing maximum load capacities and is certainly relevant in determining whether the crane was properly configured for the load lifted under the requirements of section 4999(a), Employer here was cited for section 4994(a). As discussed above, section 4994(a) requires stable support of the crane on its outriggers when the crane is not operated on its wheels or tracks. While evidence of the manufacturer’s load ratings for the crane may be relevant to proving or defending a violation of section 4994(a), we cannot simply rely on the load rating charts to determine a violation of the section in a particular case. Other relevant facts which could be probative of whether a crane is properly bearing on its outriggers include any real or perceived tipping of the crane during the set up or lifting of the load, stability of the ground or work surface directly under the outriggers or wheels, condition of the outriggers, the weight and size of the load lifted which may affect stability, surface conditions under the wheels or outriggers, etc. Only when particular evidence is presented regarding conditions under which the crane is being operated can the Board make a meaningful determination of a violation of the requirement that the crane be properly bearing on its outriggers as required in section 4994(a).

In Keir Krane, we rejected an interpretation of the manufacturer’s load rating chart as mandating full extension of outriggers simply because the chart included a statement that ratings where based upon outriggers extended at a distance of 22 feet. We found that the chart simply provided the load ratings with the outriggers set at that distance and could not interpret the chart as requiring that the outriggers be uniformly and fully extended. Other evidence was presented in testimony of the crane oiler that the crane’s load rating chart did not require the use of outriggers for the weight of the load lifted, the outriggers were used because the ground was uneven, and all of the lifting was done over the right side of the crane keeping weight off the left front outriggers. We stated that this evidence tended to prove that, for the conditions under which it was being used, the crane was bearing properly on the outriggers, and found that the Division failed to prove that the employer violated section 4994(a).

In this case, Hoyt, Employer's project manager who has operated, inspected and certified mobile cranes, testified that the crane was configured to lift the palm tree with one set of side outriggers extended fifty percent and one set of outriggers extended fully in order to allow for more crane stability. Hoyt stated that increasing the crane's load capacity on outriggers by extending the outriggers allows it to lift more weight safely. In Hoyt's opinion, although the load could have been lifted with the rubber tires on the ground (without use of outriggers),4 extending the outriggers by 50% (one half of full extension) enhanced the stability and capacity of the crane. Further, increasing the outriggers on one side by an additional 50% (to full extension on one side) would still comply with the crane's load chart, since it effectively increases the crane's stability and load capacity.5

In this case, the ALJ further reasoned that even if an additional 50% extension on the load side provides more stability as Employer maintained, it does not follow that the crane is properly bearing on its outriggers when the superstructure and load is rotated over that side. Although El Shammaa testified that the operator’s manual provided a warning that required full extension of the outriggers when rotating the superstructure over the side, such statement appears to be inconsistent with the load charts which, in fact, provide for use of partial extension (50%) of outriggers for the crane. The Division offered testimony regarding the load rating charts that was the basis for issuance of the citation. The Division simply based its position upon Employer’s configuration of the crane consisting of outriggers extended at 50% of full extension on one side and full extension of outriggers on the other side of the crane. However, such evidence failed to establish that the crane was not completely and thoroughly supported on the outriggers as required by section 4994(a).

Based upon our independent review of the evidence, we find that the Division failed to present sufficient evidence to prove that the crane was not properly bearing on the outriggers during its operation within the meaning of section 4994(a).

DECISION AFTER RECONSIDERATION

The Board reverses the ALJ’s Decision denying Employer’s appeal and hereby sets aside the citation and the assessed penalty.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: July 18, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Subsection (b) prescribes when outriggers shall be used and the specifications for them. There was no dispute in this case that outriggers were not required for the load being lifted by the crane. However, where used, an employer must comply with requirements regarding specifications and use of the equipment.
3 Other requirements govern the specifications for outriggers (§ 4994(b)) and prohibit handling of loads beyond the rated capacity or safe working load; whichever is less (§ 4999(a)). The rated capacity may be dependent upon the use of outriggers since the load rating chart admitted into evidence indicates that maximum load capacity increases with the use of outriggers.
4 As conceded by El Shammaa, if the load had been lifted with the rubber tires on the ground, it would have been within the crane's load chart for operating "on rubber."
5 The Division presented no evidence to refute Hoyt’s testimony regarding increased stability and capacity of the crane with additional extension of outriggers on one side of the crane. In the absence of full litigation regarding such proposition, we do not need to address the validity of Employer’s position as presented by the witness’ opinion testimony.