Unwarrantable Failure Criteria Not Met In Crane Assembly Project

By Ellen Smith

A company violated §56.16009, which states, “persons shall stay clear of suspended loads,” where a miner did not stay clear of a suspended load during a crane assembly project. But the violation was not due to an unwarrantable failure to comply, the Review Commission ruled on Dec. 10, 2014.


The case, decided by Acting Chairman Patrick Nakamura with Commissioners Robert Cohen and William Althen, involved Dawes Rigging & Crane Rental and five workers who were assembling a Manitowoc Model 21,000 mobile crane at the Tilden Mine in Marquette County, Mich., in May 2010.

The process involved a “boom-to-foot” connection, requiring a smaller crane to lift the lattice boom precisely into place, so pins could be inserted to connect components into place. There were two crane operators, and two men near the body of the large crane where they would make the final pin connection when the boom was in place. A foreman was overseeing the assembly.

An MSHA inspector was observing from a distance. As the lattice boom was being lifted into place, a gust of wind caused the boom to swing towards one of the crane cabs. To avoid a collision with the cab where a miner was working, the supervisor instructed one of the men to cross under the boom to pull the boom away from the cab, so the worker in the cab would not get injured.

The inspector issued an S&S and unwarrantable failure for a violation of §56.16009 for the two men’s failure to stay clear of a suspended load.

ALJ David F. Barbour affirmed the citation, finding that three members of the crane assembly crew walked under the suspended load, in violation of the safety standard.

The operator argued that the crew had to walk under the suspended load to control movement in the assembly process. The ALJ suggested that the operator should have petitioned MSHA first for a modification under Sec. 101(c), with their alternate method of protecting miners from suspended loads.

The judge also said that the supervisor should have had more tag lines, and set up the tag lines such that the team would be able to control the boom no matter which way the wind came from. The tag lines should have also been longer so that the two tag line workers could stand completely out of the swing path of the boom (19 MSHN 479).

Company Argued Standard Did Not Apply

Dawes argued before the Commission that §56.16009, requiring that persons shall stay clear of suspended loads, did not apply in this case, because the standard falls under the section covering “Materials Storage and Handling.” The company said the crane is “machinery” and not “material” and therefore the standard did not apply.

The Commission disagreed, writing that the term “materials” is “sufficiently broad to encompass the suspended boom in question.

“Materials” is defined in the American Heritage Dictionary as: “the substance or substances out of which a thing is or can be made” or the “[t]ools or apparatus for the performance of a given task.”

“We are not persuaded by Dawes’ contention that the suspended boom is beyond the purview of the regulation. The placement of the regulation does not exclude suspended equipment from coverage,” the Commissioners wrote

Upholding Violation

In upholding the S&S violation of §56.16009, the worker who went under the boom clearly was not “clear of” the suspended load. It was undisputed that he went under the boom to pull the boom away from the cab where another miner was working, placing himself in danger should the crane’s rigging fail.

The commissioners also said that this was “an emergency of Dawe’s own making by virtue of the number and placement of tag lines attached to the boom.”

Had the company placed additional tag lines on the boom, or made effective use of the two existing tag lines, the crane assembly crew would have been better situated to counteract the effect of the sudden gust of wind without resorting to a miner having to go under the boom, in violation of §56.16009.

The violation was not due to an unwarrantable failure. The violation was not extensive – only one worker was briefly under the boom.

The company had a good safety record and had never before been cited under this standard, nor had MSHA ever spoken to the company about the way in which it assembled the cranes or about employees staying clear of suspended loads.

It was also taken into consideration the fact that the one employee went under the boom to address an imminent danger of the boom striking the cab, and potentially injuring the crane operator.

“While such a consideration does not negate the violation, it significantly militates against a finding that Dawes was indifferent to the safety of its employees.”

Although the unwarrantable failure charge was overturned, the ALJ’s fine of $2,500 was upheld, given the high level of danger posed by going under a 93,000-lb. boom, and the number and placement of tag lines.

DAWES RIGGING & CRANE RENTAL, 12/10/2014, FMSHRC No. LAKE 2011-206M; 21 MSHN D-3275

Related posts