United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104 

Secretary of Labor,

 Complainant

 v. OSHRC Docket No. 20-1089 

North American Crane & Rigging LLC,

 Respondent.

Appearances: 

Emily V. Wilkinson, Esq., and Nathan C. Henderson, Esq. U.S. Department of Labor, Office of the Solicitor, 

Boston, MA, for Complainant 

Michael Rubin, Esq. and Stefan A. Borovina, Esq., GOLDBERG SEGALLA, LLP, for Respondent 

JUDGE: Administrative Law Judge Sharon D. Calhoun

DECISION AND ORDER

 North American Crane & Rigging, LLC, (NACR) contests a one-item Citation and 

Notification of Penalty issued by the Secretary on June 18, 2020, for allegedly failing to 

adequately protect employees from the swing radii of two cranes at a construction site in 

Plainville, Massachusetts. The Citation resulted from a programmed inspection at a multiemployer worksite conducted on February 27, 2020, by a Compliance Safety and Health Officer 

(CSHO) for the Occupational Safety and Health Administration. 

 The Citation alleges NACR violated, in two instances, 29 C.F.R. § 1926.1424(a)(2)(ii) by 

failing to prevent exposure of its employees to swing radius hazards because it did not 

adequately mark the boundaries of the hazardous areas. The Secretary proposes a penalty of 

$6073 for this item. 

 NACR contests the Citation, arguing the Secretary failed to prove his case. In its 

Amended Answer filed on February 25, 2021, NACR also asserts the affirmative defenses of 

greater hazard and infeasibility of compliance with the cited standard. 

 The Court held a hearing via videoconference in this matter on April 20 and 21, 2021. 

The parties have filed post-hearing briefs. For the reasons that follow, the Court finds the 
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Secretary failed to establish a violation of the cited standard for either instance of the Citation. 

Accordingly, the Court VACATES Item 1 of the Citation. 

JURISDICTION AND COVERAGE 

 NACR timely contested the Citation. The parties agree the Commission has jurisdiction 

over this action and NACR is a covered employer under the Act (Complaint, ¶¶ I & III; Answer, 

¶¶ I & III; Tr. 15-16). Based on the agreements and the record evidence, the Court finds the 

Commission has jurisdiction over this proceeding under § 10(c) of the Occupational and Safety 

Act of 1970, 29 U.S.C. §§ 651-678 (Act), and NACR is a covered employer under § 3(5) of the 

Act. 

STIPULATIONS

 The parties stipulate the following facts: 

A. General Background 

 1. At all relevant times, and specifically on 02/27/2020, Respondent was a 

limited liability company registered in Massachusetts, which was engaged in 

construction-related activities, to include specifically the set-up, operation, and 

disassembly of cranes in connection with construction projects. 

 2. On 02/27/2020, Respondent was engaged in crane disassembly work at 

the job site located at 5 Commerce Boulevard, Plainville, MA 02762 (the “Job 

Site”). 

 3. On 02/27/2020, there were two cranes being operated by Respondent’s 

employees at the Job Site: (1) a Manitowoc M250 crane (the “Lattice Boom 

Crane”); and (2) a Grove TMS760E crane (the “Assist Crane”). 

 4. Respondent did not request a variance from the requirements of 29 

C.F.R. § 1926.1424(a)(2)(ii) before beginning work at the Job Site on 02/27/2020. 

 5. Before work began at the Job Site on 02/27/2020, Respondent 

conducted a job hazard analysis for the disassembly of the Lattice Boom Crane. 

 6. On 02/27/2020, Respondent’s managers and employees present at the 

Job Site included: Avelino Mendonca (foreman); Gregory Albanese (crane 

operator); William Murphy (crane operator); Narith Pich (oiler); Kevin Doughty; 

and Nicholas Amore. 

B. The Lattice Boom Crane 

 7. Respondent was disassembling the Lattice Boom Crane at the Job Site 

on 02/27/2020. 

 8. On 02/27/2020, Mr. Albanese worked as the operator of the Lattice 

Boom Crane. 
3

 9. On 02/27/2020, Mr. Pich worked as the oiler of the Lattice Boom 

Crane. 

 10. At various times on 02/27/2020, the superstructure of the Lattice 

Boom Crane rotated while the crane was being operated during the disassembly 

process. 

 11. On 02/27/2020, no barriers were in place to mark the boundaries of the 

swing radius of the Lattice Boom Crane’s rotating superstructure. 

 12. On 02/27/2020, the Lattice Boom Crane’s operator, Mr. Albanese, did 

not erect any barriers to mark the boundaries of the swing radius of the Lattice 

Boom Crane’s rotating superstructure. 

C. The Assist Crane 

 13. On 02/27/2020, Respondent was operating the Assist Crane at the Job 

Site to disassemble the Lattice Boom Crane and to move disassembled lattice 

boom pieces onto trucks. 

 14. On 02/27/2020, Mr. Murphy worked as the operator of the Assist 

Crane. 

 15. At various times on 02/27/2020, the superstructure of the Assist Crane, 

including the counterweights, rotated while the crane was being operated. 

 16. On 02/27/2020, the outriggers of the Assist Crane were fully extended. 

 17. At the time when the CSHO conducted his initial walkaround on the 

Job Site on 02/27/2020, a rope with a sign reading “DANGER—SWING 

AREA—RESTRICTED” was hung between one set of the Assist Crane’s 

outriggers. 

 18. At the time when the CSHO conducted his initial walkaround on the 

Job Site on 02/27/2020, a rope was hung between the other set of the Assist 

Crane’s outriggers. 

19. Later on 02/27/2020, Respondent added caution tape that extended 

from both sets of the Assist Crane’s outriggers. 

D. The Serious Citation and Proposed Penalty 

20. There is a substantial probability that death or serious physical harm 

could have resulted if an employee had been struck by a crane’s rotating 

superstructure or pinched between the superstructure and another part of the 

equipment. 

21. In assessing the appropriate penalty, OSHA alleges that it considered 

the gravity of the violation, the size of Respondent’s business, Respondent’s good 

faith, and Respondent’s history of violations. 

(Joint Prehearing Statement, pp. 3-5) 
4

WITNESS TESTIMONY 

 Four witnesses testified at the hearing: the CSHO, NACR CEO Louis Izzo, NACR 

foreman Avelino Mendonca, and NACR crane operator William Murphy. Their testimony is 

summarized below. 

The CSHO 

 On February 27, 2020, the CSHO began a programmed inspection at a multi-employer 

construction worksite in Plainville, Massachusetts. He took photographs and video from outside 

the construction site before he entered the site and presented his credentials (Tr. 89). After 

meeting with the general contractor, the CSHO held an opening conference with the 

subcontractors working on the site, including NACR representatives. That day, NACR 

employees were using a yellow Grove TMS760E crane (the yellow crane) to disassemble a red 

Manitowoc M250 lattice boom crane (the red crane) when the CSHO arrived at the worksite (Tr. 

36-38). After the opening conference, the CSHO conducted a walk-through of the worksite and 

spoke with NACR foreman Avelino Mendonca (Tr. 38-39). 

The Red Crane 

 By the time the CSHO saw the red crane, NACR employees had partially disassembled it. 

They were working near the crane. The CSHO observed the red crane rotating “at one point” and 

saw the “swing radius wasn’t protected.” (Tr. 42) He videoed the red crane rotating 

approximately a quarter turn (Exh. J-20). The CSHO described the video as showing “the crane’s 

superstructure, with the counterweights rotating, and rotating towards the employees near the end 

of the crawler track.” (Tr. 43) He stated the NACR employees were “pretty close, but I couldn’t 

put a number on it.” (Tr. 43) The CSHO videoed the event because he believed he was 

“documenting a hazard” of the “unprotected swing radius,” because “the rotating superstructure 

and the counterweights could strike somebody, or it could get them caught between, in this case, 

the crawler tracks and the superstructure.” (Tr. 44) 

 The CSHO did not take measurements of the red crane to determine whether its 

superstructure extended over the body of vehicle, creating a swing radius hazard (Tr. 91, 99). He 

conceded on cross-examination that at the time of his inspection, the counterweights had been 

removed from the red crane and they could not present a struck-by hazard to employees (Tr. 93-

95, 97). He stated the superstructure of the red crane extended past the crane’s track based on the 

photos he took and the specifications he reviewed (Tr. 99, 131). Exhibit J-32 is a photograph 
5

taken by the CSHO of a specification page from the manual for the red crane. No measurements 

appear on the page (Tr. 101). He could not say whether the superstructure of the crane would 

extend past the end of the crane’s crawler tracks or the back of the crane (Tr. 110). 

The Yellow Crane 

 Unlike its treatment of the red crane, NACR had attempted to mark the area of the swing 

radius of the yellow crane, but the CSHO determined it was inadequately protected on both sides 

of the crane and truck (Tr. 47). NACR had fully extended two outriggers on the left side of the 

yellow crane and had strung a chain between the outriggers. Attached to the chain was a sign 

stating, 

DANGER 

SWING 

AREA 

RESTRICTED 

(Exh. J-7). 

 On the right side of the vehicle, NACR had fully extended the outriggers and had strung a 

rope between them to mark the swing radius. No warning sign was attached to the rope. The area 

to the right of the vehicle was a traffic lane for the construction site, and it was hemmed in by a 

sloped dirt hill (or berm) (Exh. J-16). The CSHO testified no NACR representative told him that 

marking the swing radius on the right side of the yellow crane would be unsafe, infeasible, or 

impossible during the inspection (Tr. 77). 

 Exhibits J-5 and J-6 are photographs showing the counterweights of the yellow crane 

extending beyond one of the two fully extended outriggers on the left side used as connection 

points for the chain meant to demarcate the swing radius (Tr. 50-51). The CSHO testified the 

photographs show that “the counterweights extended beyond the limited protection that was 

provided by that chain that was strung between the outriggers on each side of the crane, so the 

counterweight extended past that.” (Tr. 47) He stated the space beyond the outriggers and 

attached chain “was also a hazard in that anybody working in that area could also get struck by 

the counterweight, or . . . conceivably get caught between the counterweights and chassis of the 

truck.” (Tr. 47) He also looked at NACR’s copy of the manual for the yellow crane, which 

contains a specifications page showing a diagram and dimensions of the crane (Tr. 48). 
6

 The CSHO suggested NACR could have extended the boundary with “some stanchions 

and rope . . . so that somebody couldn’t get into that area where they could get struck.” (Tr. 51) 

He stated the same extension could have been done on the other side of the yellow crane “so 

somebody can’t get in there and get caught between those counterweights and the truck chassis 

or just struck by the counterweights.” (Tr. 52) 

 As evidence of employee exposure to the hazard of being struck by the counterweights, 

the CSHO stated he had observed a bag placed on the chassis on the left side of the crane (Tr. 59, 

79). The bag is visible in Exhibits J-5 and J-7. 

 The CSHO stated that counterweights are located on the side of the crane opposite the 

boom to prevent it from tipping over. If the boom rotates in one direction, the counterweights 

rotate in the opposite direction (Tr. 114-15). He agreed that if the NACR crane operator was not 

“hoisting from the right side of the crane; you wouldn’t expect that the counterweights would be 

on the other side of the crane (Tr. 117). Exhibit J-16 is a photograph showing a narrow area of 

compacted dirt to the right of the crane, bordered by a sloped dirt hill. When asked if he agreed 

that the counterweights would never be on the left side of the crane if the boom were hoisting on 

the right side, the CSHO responded that he “could imagine a scenario . . . where they might want 

to rotate the crane in order to get the counterweights on the other side. So, for example, if that 

area was relatively small, that flat compacted area, they might want to move the counterweight 

out of the way so that a vehicle could pass more easily.” (Tr. 118) He stated he could not recall if 

he observed or heard of this scenario actually occurring during his inspection (Tr. 118). 

 The CSHO denied that he had instructed the operator of the yellow crane to rotate the 

crane so that the counterweights were located on the left side, as shown in Exhibits J-5, J-6, and 

J-7. “I would not instruct somebody to rotate the superstructure in order for me to take a 

photograph or a measurement.” (Tr. 120) He stated it was possible he asked the operator to exit 

the cab of the vehicle: “I didn’t want to expose myself to a hazard, obviously, so I wanted to 

make sure that the thing wasn’t going to be operating while I’m trying to take a measurement.” 

(Tr. 60-61) He only measured the vertical distance from the bottom of the counterweight to the 

ground; he did not measure the horizontal extension of the counterweight beyond the outriggers. 

He stated he could determine that measurement “[f]rom looking at the crane specifications.” (Tr. 

61) 
7

 Exhibit J-31 is a copy of the Product Guide for the yellow crane. Page 7 of the document 

shows a diagram with the dimensions of the crane. The CSHO testified the diagram indicates the 

swing radius of the superstructure with the counterweights is 13 feet, 5.5 inches, from the center 

of the vehicle. The fully extended outriggers are 10 feet from the center of the vehicle. 

Therefore, when both outriggers are fully extended on either side of the crane, the 

counterweights will extend 3 feet, 5.5 inches, beyond the outriggers (Exh. J-31, Bates p. 75; Tr. 

61-3). The distance from the ground to the bottom of the counterweight was 5 feet, 7 inches 

(Exhs. J-11, J-12, J-13; Tr. 64-65). 

 NACR was using the yellow crane to move sections of the boom of the red crane onto a 

truck bed (Tr. 67). NACR employees were in the vicinity of both cranes. “They had to rig the 

pieces so they could be picked up by the crane and then they had one employee . . . guiding the 

sections of the boom onto the truck.” (Tr. 69) The CSHO observed NACR employees standing 

and walking on the side of the yellow crane where the counterweights were located. When asked 

the nearest distance the employees were to the counterweights, the CSHO responded, “Pretty 

close.” (Tr. 69) Exhibit J-25 is a still photograph from a video taken by the CSHO. It shows three 

employees in yellow vests walking near the cab of the yellow crane on its left side. The operator 

of the crane can be seen in the cab. 

 The CSHO stated that NACR extended the swing radius barriers for the cranes beyond 

the outriggers while he was onsite, using red caution tape. The areas protected were only 

between the outriggers on each side—the front and back ends of the chassis were still 

unprotected (Exh. J-10; Tr. 73). 

 NACR had completed a written job hazard analysis (JHA) for the construction site that 

identified the cranes’ swing radii as hazards (Tr. 78-79). 

Louis Izzo 

 Louis Izzo has been the CEO of NACR since 2015. He is responsible for “the general 

day-to-day management of the operations, sales, and financials of the company.” (Tr. 136) Izzo 

is also a licensed crane operator (Tr. 271). NACR employs a safety director, but Izzo is 

responsible for imposing disciplinary action on employees for safety infractions. NACR has a 

written safety program, provides safety training, and conducts field safety inspections (Tr. 137-

38). NACR employees prepare Job Hazard Analyses (JHA) for each worksite (Exh. J-36; Tr. 

140). Izzo described how NACR uses a JHA: 
8

It's basically to analyze the type of work that's going on and then we will apply to 

that scope of work, everything from safety regulations to best practices to 

manufacturer procedures to make sure that we've identified whatever hazards 

might be encountered on that job, and then identify and implement the mitigations 

to try to prevent those. 

(Tr. 142) 

 Izzo and NACR employees in the Lift Planning Group wrote the JHA for the work 

performed by NACR at the Plainville worksite on February 27, 2020. Izzo testified they designed 

the disassembly procedure so that no lifting would be performed on the right side of the yellow 

crane, as shown in the photograph admitted as Exhibit J-16. “We planned that as a roadway 

between the crane and that berm you see on the right side of the frame, to be a roadway for our 

tractor trailers to get closer access to the superstructure, both the upper and lower works of the 

red crane. So that was the primary route for cranes to access the large red crane.” (Tr. 296) Izzo 

stated the boundary marking on the right side could not be extended farther because they would 

“basically block the roadway. You're going to make it impossible for the traffic to get where it 

needs to go and complete the job they were sent there to do.” (Tr. 304) 

 NACR provided the JHA to its field staff at the worksite, including foreman Avelino 

Mendonca, who used it as the basis for pre-task analysis and onsite briefing of employees 

involved in the crane work (Tr. 143-45). Izzo was not at the Plainville construction site the day 

of the OSHA inspection (Tr. 162). 

 Izzo testified he was familiar with the red crane and was aware that, with the 

counterweights removed, the superstructure of the crane does not extend beyond its tracks. 

It does not extend beyond the tracks. . . . Basically, that's from the dismantle 

procedure, and also, just again, being a part of these for many times and part of 

being able to plan these is knowing the dimensions of these components and what 

goes where at what time. So, at this stage of the dismantle, the house has been 

dismantled to such a point where there is no external swing radius of the crane. 

(Tr. 284) 

 Referring to Exhibit J-32, which is a photograph of a diagram from the red crane’s user 

manual that the CSHO consulted, Izzo stated, 

That's an illustrative drawing that doesn't actually depict any point in the 

assembly or dismantle process. That's basically an educational tool really or an 

orienting tool to teach you what some of the key terminology is going to be about 

this crane's superstructure basically as you read about those procedures in the 

following pages of that book. . . . The picture we see in J-32 never actually 

happens in reality. The picture in J-32 is manipulated so that all of the 
9

components that you would need to know the technical names of can be 

highlighted on this page to basically label all of them. 

(Tr. 285-86) 

Avelino Mendonca 

 Avelino Mendonca has worked as a foreman for NACR for five years. He is certified in 

rigging and signaling, and he has completed OSHA’s 10-hour construction safety course. He is 

not licensed as a crane operator (Tr. 175-76). 

 On February 27, 2020, NACR’s task was to disassemble the red crane (Tr. 180). The 

operator of the red crane crawled it to the disassembly area. “[W]hen you crawl, the crane will be 

parallel with the track. It never swings. . . . When you crawl, you keep your crane parallel with 

the tracks and you crawl down to where you’re going to do the disassemble.” (Tr. 213) The crane 

operator lowered the boom to the ground and NACR employees broke it down into six sections. 

The superstructure of the red crane did not rotate during this process (Tr. 216, 218). After the 

NACR employees broke down the boom, they removed the counterweights from the 

superstructure of the red crane. Mendonca confirmed that “at no point, anytime, this red crane 

was in the disassembly area, did it ever rotate with those counterweights on back.” (Tr. 225) 

After the counterweights were removed, Mendonca testified, the superstructure of the crane did 

not extend over the crane’s track. “[I]t’s flush with the track. . . . I mean, I was there, I could, you 

could see, you’re standing there, the rig’s standing, you could see it’s clearly flush with the 

track.” (Tr. 229) 

 NACR employees had removed the counterweights of the red crane and taken apart its 

boom sections by the time the CSHO arrived onsite. NACR employees were in the process of 

attaching the red boom sections, one by one, to the hoist of the yellow crane. The yellow crane 

would swing the boom sections, located towards its left front, over to a truck bed, located to the 

left of the crane, and land them (Exh. J-28; Tr. 200). An NACR employee would disconnect the 

sections from the yellow crane’s hoist (Tr. 181-85). No boom sections were located on the right 

side of the crane (Tr. 253). The counterweights of the yellow crane remained on the right side of 

the crane during the performance of the NACR employees’ assigned task (Tr. 254). 

 Exhibit J-6 is a photograph showing the counterweights of the yellow crane on the left 

side of the crane. The counterweights clearly extend beyond the chain barrier set up between the 

outriggers. Mendonca testified the counterweights were on the left side of the crane in this 

instance only because the CSHO instructed NACR to rotate them to that side. 
10

Q.: Do you recall when [Exhibit J-6 and other photos] were taken by the 

inspector where they depict the counterweights over the left-sided outriggers? 

Mendonca: Yeah, that's the only thing that the pictures were intended. But that 

was just for a picture. 

Q.: Well, that was what I was going to ask. Other than the time photos were taken 

with the counterweights over the left-sided outriggers, at any time on February 27, 

2020, did you ever see the counterweights over the left-sided outriggers as it's 

depicted in J-6? 

Mendonca: No. 

Q.: Did you ever observe the crane hoisting anything to the right of the crane? 

Mendonca: No. 

Q.: And did you ever, at any time other than when these photographs were taken, 

such as J-6, did you see the boom over the right side of the crane? 

Mendonca: No. 

(Tr. 256) 

 Mendonca testified there was no reason related to the work NACR was performing that 

day to rotate the counterweights to the left side of the crane. 

Q.: Generally speaking, how would the trucks take away the boom pieces? 

Mendonca: They would back up to the side of the crane. . . . They'd always be on 

the left-hand side of the crane or sometimes in the back. But most of it was on the 

left-hand side of the crane. 

Q.: Okay. And was there a reason for that? 

Mendonca: Yes. All the work was being done on the left-hand side of the crane. 

There was no work being done on the right side. There was just no room over 

there to do anything because of the berm. 

Q.: Okay. And when you say, "the berm," that was on the right side of the crane, 

is that right? 

Mendonca: That's correct. 

(Tr. 258) 

 The counterweights of the yellow crane rotated from the rear of the crane to the right of 

the crane and back as this work was performed. Mendonca stated the counterweights of the 

yellow crane extended beyond the outriggers on the right side (Tr. 201-02). 

 Mendonca completed a JHA form for the disassembly of the red crane on February 27, 

2020 (Exh. J-36; Tr. 186-87). He held a safety briefing with the NACR employees and reminded 
11

them to avoid the swing radius of the counterweights of cranes. “[W]e say when a crane’s 

swinging, don’t be inside that area.” (Tr. 187-88) The crane operator is responsible for marking 

the swing radius of the crane with caution tape (Tr. 188). 

 Mendonca testified NACR employees added red caution tape to the outriggers to extend 

the swing radius barrier “because the OSHA guy told us to put it up.” (Tr. 204) He did not 

inform the CSHO that it was infeasible to protect the swing radius of the yellow crane on the 

right side because the CSHO “never asked.” (Tr. 204) 

 NACR employees did not set up swing radius barriers for the red crane because “there’s 

no overhang swing once the counterweights come off. . . . Nobody put [a barrier] up because we 

weren’t moving the crane.” (Tr. 205) Mendonca believed the red crane did not require a swing 

radius barrier because “there was no swing. . . . [T]he crane’s structure never went over the 

tracks or car body. It never goes past that. Once . . .you take that counterweight off, that crane 

has no swing.” (Tr. 210-11) 

William Murphy 

 William Murphy is a crane operator employed by NACR. He operated the yellow crane 

on February 27, 2020, at the Plainville construction site (Tr. 328-29, 332). Murphy stated he 

hoisted loads exclusively on the left side of the crane that day. “I never picked up or hoisted 

anything from that [right] side.” (Tr. 341) 

 Murphy stated he was operating the crane when the CSHO arrived at the worksite. He 

testified that when he saw the CSHO, “I swung the crane over to the back, locked everything out 

and came out, and he was speaking to me.” (Tr. 337) Murphy was shown Exhibit J-6, which 

depicts the counterweights of the yellow crane extending beyond the safety barrier erected by 

NACR on left side of the crane. NACR’s counsel asked him why the counterweights were on 

that side of the crane if he hoisted boom sections from only the left side. 

Q.: Do you know how the counterweights got to be positioned over the left-sided 

outrigger as they're depicted in this photo? 

Murphy: I believe, when the inspector came, he wanted to take some photos, so 

he had me swing over. 

Q.: Okay. What do you mean? When you say, "swing over," what do you mean? 

Murphy: Swing over to the opposite side of the work area. 

(Tr. 347) 
12

 Murphy stated he was not sitting in the cab of the yellow crane at the time the CSHO 

took the photographs showing the counterweights on the left side (Tr. 348). 

THE CITATION 

 Item 1 of the Citation alleges: 

28 CFR 1926.1424(a)(2)(ii): To prevent employees from entering hazard areas, 

the employer did not erect and maintain control lines, warning lines, railings or 

similar barriers to mark the boundaries of the hazard areas and/or did not train 

each employee to understand what these markings signify. 

Location: East side of job site. 

The employer did not ensure that the swing radius around cranes were adequately 

protected.1

 Instance A: The swing radius around the assist crane was inadequately 

protected. 

 Instance B: The swing radius around the crane being disassembled was 

unprotected. 

The Secretary’s Burden of Proof 

In order to establish a violation of an occupational safety or health standard, the 

Secretary has the burden of proving: (a) the applicability of the cited standard, (b) 

the employer's noncompliance with the standard's terms, (c) employee access to 

the violative conditions, and (d) the employer's actual or constructive knowledge 

of the violation (i.e., the employer either knew, or with the exercise of reasonable 

diligence could have known, of the violative conditions). 

Atlantic Battery Co., Inc., No. 90-1747, 1994 WL 682922, at *6 (OSHRC Dec. 5, 1994).

The Cited Standard 

 The cited standard, § 1926.1424(a)(2)(ii), provides: 

To prevent employees from entering these hazard areas, the employer must . . . 

[e]rect and maintain control lines, warning lines, railings, or similar barriers to 

mark the boundaries of the hazard areas. 

Exception: When the employer can demonstrate that it is neither feasible to erect 

such barriers on the ground nor on the equipment, the hazard areas must be 

clearly marked by a combination of warning signs (such as "Danger--

Swing/Crush Zone") and high visibility markings on the equipment that identify 

the hazard areas. In addition, the employer must train each employee to 

understand what these markings signify.

1 At the hearing, the Court granted the Secretary’s motion to amend the Citation to correct a typographical error in 

the alleged violation description (AVD) (Tr. 16-17). 
13

ANALYSIS 

(1) The Cited Standard Applies 

 Section 1926.1424 (Work area control) is found in Subpart CC (Cranes and Derricks in 

Construction) of Part 1926 (Safety and Health Regulations for Construction). The Scope section 

of Subpart CC, § 1926.1400(a), provides the standard “applies to power-operated equipment, 

when used in construction, that can hoist, lower and horizontally move a suspended load.” 

 There is no dispute that the red and yellow cranes at issue in this proceeding constitute 

power-operated equipment that could hoist, lower, and horizontally move suspended loads. 

NACR argues, however, that the cited standard does not apply to its cranes at the Plainville 

construction site on February 27, 2020, because the standard is limited in scope to cranes “when 

used in construction,” and the cranes were not used to construct anything that day. NACR 

contends, 

[T]he disassembly activities conducted on site were conducted in an area that was 

separate and distinct from any prior construction activities that had been 

performed. The area where the entire dismantling event occurred was a dedicated 

portion of the site. . . . Since the instant crane disassembly operations were not 

conducted “in” (but only “after”) any construction activities, the cited standard 

cannot apply to the underlying facts of this matter. 

(NACR’s Brief, pp. 22-23) 

 The Definitions section of Subpart CC disproves NACR’s argument. Section 1926.1401 

provides the following definitions, indicating the Subpart considers assembly and disassembly of 

cranes to be construction activities: 

Assembly/Disassembly means the assembly and/or disassembly of equipment 

covered under this standard. With regard to tower cranes, "erecting and climbing" 

replaces the term "assembly," and "dismantling" replaces the term "disassembly." 

Regardless of whether the crane is initially erected to its full height or is climbed 

in stages, the process of increasing the height of the crane is an erection process. 

Assist crane means a crane used to assist in assembling or disassembling a crane. 

 Subpart CC regards assembly and disassembly of cranes used on construction sites to be 

part of the construction process. This is borne out by the five standards in Subpart CC that 

specifically address, in detail, the assembly and disassembly procedures for cranes.2

2 The standards are: §§ 1926.1403 (Assembly/Disassembly—selection of manufacturer or employer procedures); 

1926.1404 (Assembly/Disassembly—general requirements (applies to all assembly and disassembly operations); 

1926.1405 (Disassembly—additional requirements for dismantling of booms and jibs (applies to both the use of 
14

Furthermore, NACR stipulated prior to the hearing that it was engaged in construction-related 

activity at the time of the OSHA inspection: “At all relevant times, and specifically on 

02/27/2020, Respondent was a limited liability company registered in Massachusetts, which was 

engaged in construction-related activities, to include specifically the set-up, operation, and 

disassembly of cranes in connection with construction projects.” (Joint Prehearing Statement, p. 

3, ¶ 1) 

 The Court determines § 1926.1424(a)(2) applies to the cited conditions.3

(2) Compliance with the Terms of the Cited Standard 

 The cited subparagraph of the work area control standard, § 1926.1424(a)(2)(ii), is 

intertwined with the subparagraph immediately preceding it, § 1926.1424(a)(1), and the two 

must be read together to grasp the requirements for compliance with either of them. Each 

subparagraph imposes requirements on the Secretary and the employer, respectively, not usually 

found in standards promulgated under § 5(a)(2) of the Act. 

 Sections 1926.1424(a)(1) and (2), in their entirety, provide: 

§ 1926.1424 Work area control 

(a) Swing radius hazards. 

(1) The requirements in paragraph (a)(2) of this section apply where there are 

accessible areas in which the equipment’s rotating superstructure (whether 

permanently or temporarily mounted) poses a reasonably foreseeable risk of: 

 (i) Striking and injuring an employee; or 

 (ii) Pinching/crushing an employee against another part of the equipment 

or another object. 

(2) To prevent employees from entering these hazard areas, the employer must: 

manufacturer procedures and employer procedures); 1926.1406 (Assembly/Disassembly—employer procedures—

general requirements), and 1926.1407 (Power line safety (up to 350kV)—assembly and disassembly). 

3

 NACR advances an additional argument regarding the applicability of § 1926.1424(a)(2)(ii) to the cited conditions. 

Section 1926.1424(a)(1) provides that the cited standard applies where the crane's rotating superstructure “poses a 

reasonably foreseeable risk of” striking or pinching/crushing an employee. NACR argues the Secretary failed to 

establish that a reasonably foreseeable risk of employee exposure to swing radius hazards existed the day of the 

OSHA inspection. Therefore, NACR contends, the cited standard does not apply. The Court considers this argument 

to be more apposite to the proof elements of compliance and employee access to the hazard and will address it in the 

following sections of this decision. 
15

 (i) Train each employee assigned to work on or near the equipment 

(“authorized personnel”) in how to recognize struck-by and pinch/crush hazard 

areas posed by the rotating superstructure. 

 (ii) Erect and maintain control lines, warning lines, railings or similar 

barriers to mark the boundaries of the hazard areas. 

Exception: When the employer can demonstrate that it is neither feasible to erect 

such barriers on the ground nor on the equipment, the hazard areas must be 

clearly marked by a combination of warning signs (such as “Danger—

Swing/Crush Zone”) and high visibility markings on the equipment that identify 

the hazard areas. In addition, the employer must train each employee to 

understand what these markings signify. 

 Section 1926.1424(a)(1) states that the requirements of the work area control standard 

apply in situations only where a crane’s rotating superstructure “poses a reasonably foreseeable 

risk of” injuring an employee. Generally, an OSHA standard presumes a hazard and the 

Secretary is not required to establish one exists as part of his burden of proof. When, however, a 

standard specifies it applies only when a foreseeable risk of injury is present, as does § 

1926.1424(a)(1), the Secretary must establish the additional requirement of foreseeability of risk 

to employees. 

 Section 1926.1424(a)(2)(ii) imposes an additional requirement on employers who assert 

the defense of infeasibility of compliance. Generally, to establish the infeasibility defense, an 

employer must establish that: 

(1) the means of compliance prescribed by the applicable standard would have 

been infeasible, in that (a) its implementation would have been technologically or 

economically infeasible or (b) necessary work operations would have been 

technologically or economically infeasible after its implementation, and (2) there 

would have been no feasible alternative means of protection.” V.I.P. Structures, 

Inc., 16 BNA OSHC 1873, 1874, 1993-95 CCH OSHD If 30,485, p. 42,109-10 

(No. 91-1167, 1994). 

Altor, Inc., No. 99-0958, 2011 WL 33135, at *13 (OSHRC Apr. 26, 2011), aff’d, 498 Fed. Appx. 

145 (3rd Cir. 2012). 

 The cited standard here specifies that the alternative protective measure must take the 

form of the employer clearly marking the hazard areas “by a combination of warning signs (such 

as “Danger—Swing/Crush Zone”) and high visibility markings on the equipment that identify 

the hazard areas. In addition, the employer must train each employee to understand what these 

markings signify. 
16

Instance B: The Red Crane 

 Instance B of the Citation alleges, “The swing radius around the crane being 

disassembled was unprotected.” It is undisputed NACR did not mark the boundaries of the swing 

radius of the red crane (Tr. 42, 204-05). NACR does not assert the infeasibility defense for this 

instance. 

 The Secretary argues NACR admitted it violated the cited standard when it stipulated the 

following: 

10. At various times on 02/27/2020, the superstructure of the Lattice Boom Crane 

rotated while the crane was being operated during the disassembly process. 

11. On 02/27/2020, no barriers were in place to mark the boundaries of the swing 

radius of the Lattice Boom Crane’s rotating superstructure. 

12. On 02/27/2020, the Lattice Boom Crane’s operator, Mr. Albanese, did not 

erect any barriers to mark the boundaries of the swing radius of the Lattice Boom 

Crane’s rotating superstructure. 

(Joint Prehearing Statement, p. 4) 

 For the Secretary, the fact NACR concedes its crane operator rotated the superstructure of 

the red crane while its swing radius was unmarked is sufficient to establish noncompliance with 

the standard. As evidence of the additional requirement set out in § 1926.1424(a)(1) (that he 

establish the existence of accessible areas where the crane’s rotating superstructure could strike 

or crush an employee), the Secretary points to Exhibit J-9, a photograph taken from the video 

admitted as Exhibit J-20, showing that “[t]wo of Respondent’s employees . . . stood at the end of 

the crane’s crawler tracks as the superstructure rotated.” (Secretary’s Brief, p. 11) The Secretary 

argues, “[I]t is undisputed that the superstructure was rotating while two employees stood within 

mere feet of it. . . . Accordingly, there was a reasonably foreseeable risk that an employee could 

have been struck by the superstructure or pinched between the superstructure and another part of 

the red Lattice Boom Crane.” (Secretary’s Brief, p. 12) 

 The Court disagrees. The testimony of foreman Mendonca establishes that at all times 

when the superstructure rotated on February 27, 2020, no counterweights were attached, and its 

swing radius did not extend beyond the body of the vehicle. No swing radius hazard existed. 

 Mendonca testified that the day of the OSHA inspection, the red crane operator crawled 

the crane to the assembly area with the boom forward. At the disassembly area, NACR 

employees removed the boom sections, during which time the superstructure of the red crane 
17

remained facing forward and parallel with the crawler tracks (Tr. 222-23). NACR employees 

then plugged a remote control device into the red crane and used it to drop the counterweights 

from the superstructure. Use of the remote control device temporarily disables the crane’s 

operating system so that, according to Mendonca, “[N]obody would go in and hit the, have an 

accident, you know, so everything gets controlled by that remote. So, it wouldn't swing out.” (Tr. 

225) Mendonca testified that the red crane never rotated in the disassembly area until the 

counterweights had been dropped from the superstructure (Tr. 225-27). 

 The CSHO described Exhibit J-20 as showing “the crane’s superstructure, with the 

counterweights rotating, and rotating towards the employees near the end of the crawler track.” 

(Tr. 43) (emphasis added) He did not realize until he was cross-examined that the counterweights 

of the red crane had been removed at the time he recorded the video (Exhibit J-20; Tr. 93-95, 

97). The CSHO took no measurements of the red crane (Tr. 91, 99). He stated the two NACR 

employees were “pretty close” to the end of the crane’s crawler track, but he “couldn’t put a 

number to it.” (Tr. 43) The page of the crane manual that he testified he consulted to determine 

that the crane’s superstructure extended past the crane’s track does not provide dimensions of the 

crane (Exh. J-32; Tr. 99, 101, 131). 

 The CSHO’s testimony on cross-examination demonstrates he had no quantitative data to 

back up his claim that the crane’s superstructure, without counterweights, posed a reasonably 

foreseeable risk of striking employees standing at one end of the crawler track. NACR’s counsel, 

referring to Exhibits J-9 (the photo) and J-20 (the video), questioned the CSHO regarding the end 

of the superstructure marked with the number “1250” in white paint. 

Q.: Do you know if the crane rotated in the direction, that was observed rotating 

in the video, if that 1250, or this side of the crane, we'll say the butt of the upper 

works, would extend past the end of the tracks where the two workers were on the 

right part of the photo? 

CSHO: I don't know that from the top of my head. 

Q.: Okay, and do you know if the crane had rotated the other way, if the butt of 

the crane where it says 1250 would extend beyond the back of the track from the 

other side where that one worker is to the left of the photo? 

CSHO: I don't know that. 

Q.: Okay, and would you agree that if the butt of the red crawler crane did not 

extend past the outer point of the tracks, that that would not be a hazard to 

workers who were standing where they're standing, as depicted in J-9? . . . If the 

1250, which is shown on the back of the red super structure, upper works, if that 
18

was parallel to the tracks and did not extend past the tracks, would you agree there 

was no swing radius hazard to the workers standing in the photo on the right, 

Exhibit J-9? 

CSHO: Well, if what you -- in your scenario, if they stayed where they were and 

didn't move, they wouldn't be struck by it. 

(Tr. 110-11) 

 The CSHO’s testimony, in which he is unclear on whether the crane’s superstructure 

extended beyond the tracks of the vehicle, contrasts with the certainty of the testimony of Izzo, 

who was familiar with the red crane at issue, and Mendonca, who was onsite and oversaw the 

disassembly of the red crane on February 27, 2020. 

 Izzo testified, 

[The red crane] does not extend beyond the tracks. . . . [A]t this stage of the 

dismantle, the house has been dismantled to such a point where there is no 

external swing radius of the crane. 

(Tr. 284) 

 Mendonca stated that “at no point, anytime, this red crane was in the disassembly area, 

did it ever rotate with those counterweights on back.” (Tr. 225) After the counterweights were 

removed, Mendonca testified, the superstructure of the crane did not extend over the crane’s 

track. “[I]t’s flush with the track. . . . I mean, I was there, I could, you could see, you’re standing 

there, the rig’s standing, you could see it’s clearly flush with the track.” (Tr. 229) 

 The Secretary has failed to adduce any probative evidence establishing that a swing 

radius hazard existed when the superstructure of the red crane rotated in the disassembly area on 

February 27, 2020. Exhibits J-20 and J-9 show the CSHO was mistaken when he claimed the 

counterweights were intact and created a struck-by or crushing/pinching hazard when he videoed 

the rotation of the crane’s superstructure. The Secretary did not produce measurements showing 

any part of the superstructure extended beyond the body of the crane vehicle, and it is not 

possible to determine from the angle of the video in Exhibit J-20 whether the superstructure 

overhangs the vehicle body at any point. 

 The Court concludes the Secretary did not prove NACR failed to comply with the 

requirements of § 1926.1424(a)(2)(ii) during disassembly of the red crane. He has failed to 

establish a violation with regard to Instance B of the Citation. 
19

Instance A: Left Side of the Yellow Crane 

 In contrast to the lack of evidence regarding a swing radius hazard for the red crane, the 

Secretary has adduced unambiguous evidence the counterweights of the yellow crane extended 

approximately 3 feet beyond the marked boundary of the swing radius on the left side of the 

yellow crane. The parties stipulate the following: 

15. At various times on 02/27/2020, the superstructure of the Assist Crane, 

including the counterweights, rotated while the crane was being operated. 

16. On 02/27/2020, the outriggers of the Assist Crane were fully extended. 

17. At the time when the CSHO conducted his initial walkaround on the Job Site 

on 02/27/2020, a rope with a sign reading “DANGER—SWING AREA—

RESTRICTED” was hung between one set of the Assist Crane’s outriggers. 

(Joint Prehearing Statement, p. 4) 

 Page 7 of the yellow crane’s manual (Exhibit J-31) shows a diagram with the dimensions 

of the crane. The swing radius of the superstructure with the counterweights is 13 feet, 5.5 

inches, from the center of the vehicle. The fully extended outriggers are 10 feet from the center 

of the vehicle. Therefore, when both outriggers are fully extended on either side of the crane, the 

counterweights will extend 3 feet, 5.5 inches, beyond the outriggers (Exh. J-31, Bates p. 75; Tr. 

61-3). The distance from the ground to the bottom of the counterweight was 5 feet, 7 inches 

(Exhs. J-11, J-12, J-13; Tr. 64-65). 

 Exhibit J-6 is a photograph showing the counterweights extending almost their full length 

beyond the outriggers and suspended chain. It is undisputed that the chain and attached sign on 

the left side did not mark the boundaries of the swing radius of the counterweights. The issue is 

whether the counterweights posed a reasonably foreseeable risk of striking or crushing/pinching 

employees on the left side of the yellow crane. 

 Izzo testified that he and the Lift Planning Group planned the disassembly of the red 

crane so that all lifting and landing of the red crane’s boom sections would take place on the left 

side of the yellow crane. The counterweights would, therefore, be on the right side of the yellow 

crane as its boom hoisted the red crane’s boom sections. 

 Looking at Exhibit J-16, a photograph showing the right side of the yellow crane, Izzo 

stated, “We planned that [area] as a roadway between the crane and that berm you see on the 

right side of the frame, to be a roadway for our tractor trailers to get closer access to the 
20

superstructure, both the upper and lower works of the red crane. So that was the primary route 

for cranes to access the large red crane.” (Tr. 296), 

 William Murphy, the operator of the yellow crane, confirmed that the right side of the 

yellow crane was used as a roadway. “[A]ll the work was to the left side.” (Tr. 340) When 

Murphy was shown a photograph of the area to the right of the yellow crane (Exhibit J-16), he 

stated, “That was the right side of the crane where we weren't doing -- that was a roadway for the 

trucks to get in and out. . . . I never picked up or hoisted anything from that side.” (Tr. 340-41) 

 Mendonca and Murphy both testified confidently that the CSHO was able to photograph 

the counterweights of the yellow crane located on the crane’s left side only because he instructed 

Murphy to rotate the superstructure to that location (Tr. 256, 347-48). The CSHO denied doing 

so, but his recollection of the inspection was less certain than that of the NACR employees. 

Q.: And what, if anything, did you ask the crane operator to do so you could get 

those photos? 

CSHO: I may have asked to make sure that the crane operator was not operating 

the crane, that he got out of the cab, I don't recall that a hundred percent clearly, 

but it's possible that I did that, because didn't want to expose myself to a hazard, 

obviously, so I wanted to make sure that that thing wasn't going to be operating 

while I'm trying to take a measurement. 

(Tr. 60-61) 

 Mendonca and Murphy are matter-of-fact in their recounting of the CSHO’s instruction 

to rotate the yellow crane, and they each phrase their testimony as an account of an event that 

actually happened. Mendonca stated the location of the counterweights on the left side of the 

yellow crane as shown in Exhibit J-6 “was just for a picture,” (Tr. 256) and Murphy testified, “I 

believe, when the inspector came he wanted me to swing over. . . . Swing over to the opposite 

side of the work area.” (Tr. 347) 

 In contrast, the CSHO framed his responses to questions about Exhibit J-6 in terms of 

what he would have done, or what he expected would have happened, while also stating he did 

not recall how the counterweights came to be on the left side of the yellow crane. 

Q.: [D]id you ever speak with anyone before you took this photo marked J-6 from North 

American Crane? 

CSHO: Yeah, I previously testified, I don't have a specific recollection, but I would, I 

believe I would have told them, hey, look it, I'm going to take some measurements, either 

I want you out of the crane or that crane can't operate while I'm taking these 

measurements. So, I would expect that there was a conversation about that. 
21

Q.: Okay; and that's just based on how things usually work, but as you're sitting here 

today, you don't remember any specific conversations that were had; right? 

CSHO: I don't recall. 

Q.: So, you wouldn't recall, for example, if you had asked the operator to swing the 

counterweights to the left side of the crane? 

CSHO: I would not instruct somebody to rotate the super structure in order for me to take 

a photograph or a measurement. 

(Tr. 119-20) 

 Based on the respective demeanors of the witnesses, the Court finds Mendonca and 

Murphy to be more credible on this point than the CSHO. Mendonca and Murphy have specific 

memories that there was no reason for the boom of the yellow crane to be on the right side 

(causing the counterweights to be on the left side) and that the CSHO instructed Murphy to rotate 

the superstructure to position the counterweights on the left side. The CSHO, on the other hand, 

was vague in his recollection of the inspection and spoke in terms of what he would have done or 

what might have happened, and not what he actually recalled. The Court finds the CSHO 

directed Murphy to rotate the superstructure of the yellow crane to position the counterweights 

over the outriggers on the left side. 

 Furthermore, the photographic and video exhibits, as well as the CSHO’s testimony, bear 

out NACR’s central argument that there was no reason for the counterweights to be positioned 

on the left side of the yellow crane. It is undisputed that the boom sections of the red crane were 

positioned to the left of the yellow crane, from where they were hoisted and landed on a flatbed 

truck, also parked on the left side of the yellow crane (Exhs. J-20, J-24, J-25, J-28, J-30). The 

CSHO acknowledged the logic of NACR’s contention that the counterweights would not have 

been located on the left side of the yellow crane as NACR employees performed their assigned 

task. 

Q.: [W]ould you agree if there were no hoisting operations to the right side of the 

outriggers, that means the boom would never be in the direction of the right side 

of the outriggers for purposes of any hoisting operations; would you agree with 

that? 

CSHO: I would agree that if they weren't hoisting from the right side of the 

crane, you wouldn't expect that the counterweights would be on the other side of 

the crane. 

Q.: So, if there was no hoisting in this area, you wouldn't expect the 

counterweights to be on the other side, because the counterweights are always on 

the other side; right? 
22

CSHO: That's correct. 

Q.: So, just to drive the point home, if you have the crane, it's operating the boom 

over the left side, a crane like this Grove mobile crane, the boom's operating over 

the left side, the counterweights would be over the right side behind it; right? 

CSHO: Yeah, that's correct. 

Q.: And if the crane was never operating on one side, it means the counterweights 

would never be on the other side, right? 

CSHO: Well, I think -- I think there wouldn't be a readily apparently reason why 

that would be true. 

(Tr. 117-18) 

 The CSHO posited one situation that he thought might explain the counterweights being 

on the left side of the yellow crane. 

CSHO: I could envision a scenario, though, where they might want to move, they 

might want to rotate the crane in order to get the counterweights on the other side. 

So, for example, if that area was relatively small, that flat compacted area, they 

might want to move the counterweight out of the way so that a vehicle could pass 

more easily. 

Q Right; do you know if that ever happens, did you ever see that happened on 

February 27, 2020? 

CSHO: I don't recall for sure. 

(Tr. 118) 

 The Court does not find the CSHO’s testimony persuasive on this point. He stated he 

does not recall if he observed an occurrence of this situation, and there is no evidence in the 

record that such an event happened. Furthermore, if NACR were required to move the 

counterweights so vehicles could pass unimpeded on the right side of the yellow crane, there 

would be no need to swing the crane 180 ̊ so that the counterweights were positioned directly 

above the front outrigger on the left side. The crane operator could rotate the superstructure a 

quarter turn so that the counterweights were positioned to either the front or the back of the crane 

vehicle, where the swing radius does not extend past the body of the vehicle. 

 The Secretary has established the chain NACR suspended between the outriggers on the 

left side of the yellow crane was inadequate to mark the boundary of the swing radius on that 

side. He has failed, however, to meet the requirement set out in § 1926.1424(a)(1) to show the 

rotating superstructure of the yellow crane posed a reasonably foreseeable risk of striking or 

pinching/crushing an employee in an accessible area on the left side. NACR planned the 
23

disassembly of the red crane so that all of the hoisting, swinging, and landing would be 

performed on the left side of the yellow crane. All witnesses who testified about this issue, 

including the CSHO, agreed NACR’s work assignment that day required the counterweights to 

remain on the right side of the crane, where they posed no struck-by or pinching/crushing 

hazards to employees on the left side of the crane. 

 NACR planned the disassembly of the red crane so that the left side of the yellow crane 

would not be a zone of danger. Based on the work plan, it was not reasonably foreseeable (or 

predictable) that an OSHA CSHO would instruct the operator of the yellow crane to swing the 

counterweights to the left side of the crane so he could document that the counterweights 

extended past the boundary marker on that side. 

In determining employee access to the hazard, “the ‘inquiry is not simply into 

whether exposure is theoretically possible,' but whether it is reasonably 

predictable ‘either by operational necessity or otherwise (including inadvertence), 

that employees have been, are, or will be in the zone of danger.”’ Id. at 1818-19. 

“The zone of danger is ‘that area surrounding the violative condition that presents 

the danger to employees which the standard is intended to prevent.”’ KS Energy 

Servs., Inc., 22 BNA OSHC 1261, 1265 (No. 06-1416, 2008) (citing RGM Constr. 

Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). 

Gate Precast Co., No. 15-1347, 2020 WL 2141954, at *2 (OSHRC April 28, 2020). 

 Here, the only time the left side of the yellow crane became a zone of danger was when 

Murphy rotated the counterweights to that side after the CSHO instructed him to do so. Murphy 

testified he exited the crane after he had repositioned the counterweights. There is no evidence 

NACR employees were in the zone of danger during this time. They had no operational necessity 

for approaching the zone of danger since work was halted while the CSHO photographed the 

counterweights on the left side of the crane. The superstructure of the yellow crane could not 

rotate because Murphy had exited the cab of the crane. The video and photographs cited by the 

Secretary as showing employee exposure to the zone of danger (Exhs. J-23, J-24, J-25) were 

taken when the counterweights were on the right side of the yellow crane, as established by the 

boom of the yellow crane visible on the left side. 

 The Court determines the Secretary did not prove NACR violated § 1926.1424(a)(2) with 

regard to the left side of the yellow crane. The counterweights of the crane, which represented 

the swing radius hazard, remained on the right side while NACR employees worked on the left 

side. 
24

Instance A: Right Side of the Yellow Crane 

 On February 27, 2020, NACR crane operator Murphy rotated the yellow crane’s 

counterweights on the right side of the crane to perform most of the hoisting and landing of the 

red crane’s boom sections on the left side. It is undisputed that when the counterweights rotated 

on the right side of the yellow crane, they extended beyond the rope that NACR suspended 

between the outriggers on that side. 

 NACR asserts the affirmative defenses of greater hazard and infeasibility. In its brief, 

however, it appears NACR intends those defenses to relate only to the red crane and the left side 

of the yellow crane, but not to the right side of the yellow crane. For example, NACR argues, 

Extending the caution tape outwards from the outriggers, farther away from the 

Assist crane superstructure, thereby creating a wider perimeter around the center 

of the Assist crane, would have placed the caution tape . . . in close proximity if 

not directly in the path of the multiple sections of lattice boom from the red 

Barnhart crane and the tractor-trailers. Since multiple sections of the lattice boom 

were moved into position, one-by-one, the caution tape (or any other barrier used) 

extending outwards from the outriggers would need to have been taken down and 

then put right back up again (for every single section of Barnhart crane boom). 

Any process of repeatedly taking down and putting back up the caution tape in the 

area of the yellow Assist crane would have caused employees to position 

themselves in the swing radius hazard area many more times than they otherwise 

could have and/or would have been. This would have increased any potential 

hazard, not decreased the hazard. Notably, there was a sign hanging from a chain 

hanging between the outriggers of the assist crane warning workers about the 

swing radius hazard. This sign, along with the workers’ training, including 

situational awareness in performing such disassembly operations, provided 

sufficient protection from swing radius hazards and was a safer measure than 

extending any caution tape from the yellow Assist crane’s outriggers. 

(NACR’s Brief, p. 23-24) 

 In any event, NACR failed to meet the requirements of either defense.4

4

To establish a defense of greater hazard, an employer must prove that: 

(1) the hazards created by complying with the standard are greater than those of noncompliance, 

(2) other methods of protecting employees from the hazards are not available, and (3) a variance is 

not available or application for a variance is inappropriate. See Spancrete Northeast, Inc., 15 BNA 

OSHC 1020, 1022–23, 1991 CCH OSHD ¶ 29,313, pp. 39,356–39,357 (No. 86–521, 1991). These 

three elements are now well-established in court precedent. Id. at n. 3 (listing cases). An 

employer's proof of the unavailability or inappropriateness of a variance is particularly 

important. E.g., PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 895 (1st Cir.1981). 

Seibel Mod. Mfg. & Welding Corp., No. 88-821, 1991 WL 166592, at *8 (OSHRC Aug. 9, 1991). 
25

 The Court finds that with regard to the right side of the yellow crane, the Secretary has 

established NACR failed to comply with the terms of the cited standard by failing to mark the 

boundaries of the swing radius of the counterweights. 

(3) Employee Access to the Hazard 

 Section 1926.1424(a)(1) provides that the cited standard, § 1916.1424(a)(2)(ii), applies 

only “where there are accessible areas in which the equipment’s rotating superstructure . . . poses 

a reasonably foreseeable risk of” striking or pinching/crushing employees. This requirement 

touches on all elements of the Secretary’s burden of proof: applicability, compliance, employee 

access, and employer knowledge. The Court will address it here because, at this point in the 

decision, the right side of the yellow crane is the only area still at issue as potentially presenting 

a swing radius hazard. 

 The Secretary must establish the swing radius of the crane’s rotating superstructure (in 

this case, the attached counterweights) created a zone of danger to which employees had access. 

The zone of danger “is normally that area surrounding the violative condition that presents the 

danger to employees which the standard is intended to prevent.” RGM Constr. Co., No. 91-2107, 

1995 WL 242609, at *5 (OSHRC Apr. 24, 1995). Employee access to the danger is established 

by showing that “during the course of their assigned working duties, their personal comfort 

activities on the job, or their normal ingress-egress to and from their assigned workplaces, 

 Here, NACR’s defense fails because it did not file a variance or adduce any evidence that application for a 

variance is inappropriate (“Respondent did not request a variance from the requirements of 29 C.F.R. § 

1926.1424(a)(2)(ii) before beginning work at the Job Site on 02/27/2020.” (Joint Prehearing Statement, p. 3, ¶ 4)). 

NACR makes no mention in its brief of the “particularly important” third element of unavailability or 

inappropriateness of a variance. 

 As noted, proof of infeasibility requires the employer to establish that: 

(1) [T]he means of compliance prescribed by the applicable standard would have been infeasible, 

in that (a) its implementation would have been technologically or economically infeasible or (b) 

necessary work operations would have been technologically or economically infeasible after its 

implementation, and (2) there would have been no feasible alternative means of protection. 

Altor, Inc., 2011 WL 33135, at *13. 

 In addition, § 1926.1424(a)(2)(ii) requires an employer asserting the infeasibility defense to clearly mark 

the hazard areas “by a combination of warning signs (such as “Danger—Swing/Crush Zone”) and high visibility 

markings on the equipment that identify the hazard areas.” 

 NACR did not post a warning sign on the right side of the yellow crane and there is no evidence it placed 

high visibility markings on the equipment that identified the swing radius of the counterweights. Its infeasibility 

defense also fails. 
26

employees have been in a zone of danger or that it is reasonably predictable that they will be in a 

zone of danger.” Id.

 The Secretary has adduced no evidence that it was reasonably predictable or reasonably 

foreseeable that NACR’s employees would be in the zone of danger due to assigned work duties, 

personal comfort activities, or normal ingress-egress to and from their assigned workplaces. 

Most of the instances the Secretary cites for employees allegedly being in the zone of danger of 

the yellow crane relate to the left side of the crane. The Court determined in the previous section 

that it was not reasonably foreseeable that the CSHO would instruct the crane operator to 

position the counterweights on the left side of the crane. 

 Regarding the right side of the yellow crane, the Secretary asserts the CSHO “observed 

employees standing in the zone of danger on the opposite side of the crane, where the 

counterweights were located while the yellow Assist Crane hoisted the lattice boom pieces onto 

trailers.” (Secretary’s Brief, p. 15) The Secretary cites the following transcript pages and exhibits 

in support of that statement: 

Q.: Could you just describe for us, this area of the job site that's depicted in 

Exhibit J-16? 

CSHO: [I]t's the far side of the crane and it's looking at the two outriggers 

extending from the chassis, so again, it's the opposite side from the building. 

Q.: And did you see any employees in this area while you were on the job site? 

CSHO: Yes. 

(Tr. 67) 

 Exhibit J-16 is a photograph of the right side of the crane. No employees or other people 

appear in the photograph. 

Q.: And did you observe any employees standing or walking on the 

counterweight side of the yellow assist crane? 

CSHO: Yes. 

. . . 

Q.: What is the closest distance that you observed a North American Crane 

employee get to the yellow assist crane while you were on the site? 

CSHO: Pretty close. 

(Tr. 69) 
27

 Exhibit J-28 is the photograph that the Secretary refers to in his brief as evidence 

employees were in the zone of danger on the left side of the yellow crane. The CSHO took the 

photograph far enough from the yellow crane to encompass a large area of the construction site, 

including part of the wall to the left, the flatbed truck on which Murphy was landing the red 

boom sections, both the red and yellow cranes, and another flatbed truck parked behind the 

yellow crane. Somewhere between the back of the yellow crane and the front of the flatbed truck 

are two employees. The flatbed truck obstructs the view of most of the employees’ bodies. Only 

the white hard hat of the employee on the right is visible. It is possible to see the left shoulder 

area and the hard hat of the employee on the left.5

 It is impossible to determine whether the two employees were in the zone of danger of 

the crane’s counterweights from Exhibit J-28. The photograph is blurry, the employees are 

mostly obscured from view, and the angle from which the photograph was taken is not conducive 

to estimating distances. The Court finds that Exhibit J-28 and the vague testimony of the CSHO 

that he observed employees on the right side of the crane and they were “pretty close” to the 

crane lack probative value. The CSHO neither measured the distance from the swing radius of 

the yellow crane to the location where the employees were standing nor offered an estimate of 

the distance. 

 NACR has already established its employees had no assigned work duties on the right 

side of the yellow crane—the disassembly was designed so that all assigned work was performed 

on the left side of the crane. There was no testimony or evidence indicating NACR’s employees 

used the right side of the crane to travel for personal comfort activities or to walk to and from 

their assigned workplaces. It is undisputed the right side of the yellow crane was used as a 

narrow single traffic lane, and it was bounded on its right by a berm and fence. Looking at 

Exhibit J-16, Izzo described the area. 

[I]mmediately to the right of the outriggers you see that active roadway we've 

been talking about where the trucks just constantly [go] back and forth, back and 

forth. And then, further to the right, you see the dirt berm, you know, that slope, 

which is not accessible or usable in any way. 

(Tr. 301-02) 

5

 The hard hat of a third employee is visible at the right edge of the photograph, several feet behind the other two 

employees. The Court examined the Exhibit J-28 with the aid of magnification. 
28

 The Secretary has failed to establish NACR’s employees had actual access to the zone of 

danger on the yellow crane’s right side or that access was reasonably predictable or foreseeable 

based on the employees’ assigned work activities, personal comfort activities, or ingress/egress 

routes. The Court finds the Secretary has not proved the element of employee access with regard 

to the right side of the yellow crane. 

 Item 1 of the Citation is vacated. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

 The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Fed. R. Civ. P. 52(a). 

ORDER 

 Based on the foregoing decision, it is hereby ORDERED: 

 Item 1, alleging a serious violation of § 1926.1424(a)(2)(ii), is VACATED, and no 

penalty is assessed. 

SO ORDERED. 

 /s/___________________________ 

 Sharon D. Calhoun 

Dated: August 6, 2021 Administrative Law Judge, OSHRC 

 Atlanta, GA