This decision from the OSHRC will make you wonder if safety is more about “legal matters” or “common sense safety”. The fact that a company can use a JLG brand lift to remove and replace 31′ beams weighing 325 pound comes down to the use of clamps vs. no clamps is just crazy. I think any self-respecting safety professional would question the practice discussed in this decision and the use of clamps vs. not using clamps would NOT be a deciding factor in our safety decision! Nonetheless, this is an interesting dissection of 1910.67 and what the OSHRC considers to be a “field modification”. BTW… PLEASE do not think for moment that this OSHRC makes the practice described in this decision a “safe act”; this decision was ALL ABOUT LEGAL MATTERS and not so much about safety!
Following an inspection of a worksite, OSHA issued a company a serious citation, alleging as amended that “The Company” “field modified” an aerial lift in violation of 29 C.F.R. § 1910.67(b)(2). In the amended citation, the Secretary alleges two instances of violation and proposes a total penalty of $4,500. Administrative Law Judge Stephen Simko affirmed the two-instance citation.
BACKGROUND
“The Company” was hired to remove and replace several explosion-damaged beams made of angle iron from the ceiling of a facility. “The Company” used two aerial lifts to access, remove, and replace the beams, which each weighed approximately 325 pounds. One of these lifts, known as a “JLG Boom Lift,” had a boom that extended approximately 40 feet, with an 8-foot by 3-foot “basket” attached to the end of the boom. The basket consisted of a platform surrounded by guardrails. To remove a damaged beam from the ceiling, “The Company” would raise the lift and position its basket under the center of the beam so that the beam rested on the basket’s guardrails and extended 11.5 feet beyond either side. After the beam was unbolted from the ceiling, the lift would lower it to the ground. New beams were similarly positioned on the lift basket and raised to the ceiling for installation.
When “The Company” removed the first damaged beam from the ceiling, it used two vise clamps to restrict the beam’s movement on the lift basket’s guardrails as a precaution against the beam rolling off. The jaws of the clamps are shaped like the letter “C” when opened. Each clamp was placed around the guardrail with the ends of its jaws clamped to the beam, so that the clamp encircled the guardrail when closed. Approximately two weeks after replacing the first beam, “The Company” replaced ten more using the lift to transport the beams, but it did not use clamps or any other method of securing those beams to the lift.
DISCUSSION
On review, “The Company” challenges only the judge’s conclusion that it failed to comply with the terms of § 1910.67(b)(2). In response, the Secretary argues in support of the judge’s holding with regard to “The Company”’s noncompliance, but contends that his decision to lower the proposed penalty is unwarranted. We turn first to the issue of compliance.
I. Compliance
The Secretary alleges that “The Company” violated § 1910.67(b)(2) when it transported beams on the aerial lift both:
a. with clamps (instance (a) and
b. without clamps (instance (b).
The standard provides, as relevant, that “[a]erial lifts may be “field modified” for uses other than those intended by the manufacturer, provided the modification has been certified in writing …” It is undisputed that “The Company’s” use of the lift to transport beams was contrary to the lift manufacturer’s Operation and Safety Manual (“manufacturer’s manual”), and that “The Company” did not have the lift certified before using it in this manner. Thus, the only question is whether “The Company” “field modified” the lift.
In affirming the violation, the judge concluded, without distinguishing between instances (a) and (b), that “‘[m]odification’ is not limited to physically altering the lift,” and that “”The Company’s” use of the guardrails to transport the beams was a field modification.” On review, “The Company” argues that misuse alone—without any physical change to the lift—does not constitute a “modification.” According to “The Company”, the judge’s holding essentially re-writes the standard to require certification for an unintended use of the lift irrespective of whether it was field modified. The Secretary responds that the judge’s interpretation of the standard is correct because the meaning of the term “modification” is “sufficiently broad” to include misuse without a physical change.
We disagree, and find that the judge’s interpretation of the standard is inconsistent with its plain meaning. When determining the meaning of a standard, the Commission first looks to its text and structure. If the wording is unambiguous, the plain language of the standard will govern, even if the Secretary posits a different interpretation. Both the courts and the Commission have rejected the Secretary’s interpretation of a standard when it strains the plain meaning of the regulatory text.
Here, a reading of the entire aerial lift standard shows that “field modified” does not encompass mere misuse. A standard must be read as a coherent whole and, if possible, construed so that every word has some operative effect. Section 1910.67(b)(2) states that a certification is required when a lift has been “ ‘field modified’ for uses other than those intended by the manufacturer …”. As written, therefore, two (2) factors must be present for the certification requirement to apply—
a field modification and
an unintended use.
Construing the term “field modified” to encompass unintended use, as the judge and Secretary would have us do, deprives this term of any effect because only one factor—unintended use—would be sufficient to trigger the provision’s requirement. In addition, the plain meaning of “modify,” when used in reference to an object, is to make a physical change: “to change somewhat the form or qualities of; alter partially: to modify a design.” Random House Dictionary of the English Language 921 (unabr. ed., 1971) (emphasis added).
OSHA uses “modified” in exactly this way in 1910.67(b)(1), the provision that immediately precedes the one at issue here. Under that provision, certain older equipment must be “modified … to conform with the applicable design and construction requirements of ANSI A92.2-1969,” which contemplates a physical change. Accordingly, the meaning of modification is the same under both provisions:
a change to the lift’s design and/or
construction.
To support his claim that “field modified” encompasses misuse without any physical change, the Secretary points to a section of the incorporated ANSI consensus standard that relates to manufacturer labeling and description requirements for aerial devices that have “alternative configurations.” See ANSI A92.2-1969 Section 3.1.3: Alternative Configuration. In that section, one of the alternative configurations is “[u]se[] as a personnel-carrying device only [versus] use[] as a personnel-carrying and material-handling device.” According to the Secretary, this establishes “as a legal matter” that a change in the lift’s use (from personnel-carrying to material handling) is a change to the lift’s configuration. And he contends that “altering a device’s configuration” satisfies the ordinary definition of “modification.”
We are not persuaded by this argument for two reasons. First, by its terms, the cited OSHA provision incorporates only the ANSI standard’s criteria for determining whether a field modification, once made, qualifies for certification. 29 C.F.R. § 1910.67(b)(2) (permitting field modified lifts for other-than-intended uses when “certified . . . to be in conformity with all applicable provisions of ANSI A92.2-1969”). The OSHA standard does not, however, incorporate any purported ANSI guidance on what would constitute a modification. Therefore, contrary to the Secretary’s contention, the alternative configuration provision of the ANSI standard has no bearing on the meaning of the OSHA provision.
Second, even if ANSI’s use of “configuration” were relevant, it does not support the Secretary’s position because his interpretation of the ANSI standard contravenes the plain meaning of the word “configuration”— “the relative disposition of the parts or elements of a thing” or “external form . . . .” Random House Dictionary of the English Language 308 (unabr. ed., 1971). “Configuration” is thus no more susceptible of meaning “use” than “modification” is of meaning “change in use.” Read in light of the ordinary meaning of “configuration” and the four other examples ANSI provides of alternative configurations, all of which address physical aspects of the lift, it is evident that the personnel-to-material handling example assumes the lift has been physically altered to enable it to handle materials. For these reasons, we reject the Secretary’s contention that the ANSI standard establishes that “field modified” includes misuse absent a physical change to the lift.
Turning to the issue of whether “The Company” physically altered the lift in question, we find that “The Company”’s use of vise clamps to attach the first damaged beam to the lift resulted in a field modification. “The Company” claims that it made no physical changes to the lift at any time — it simply rested the beams on the lift’s guardrails. We agree that on those occasions when “The Company” did not use clamps to attach the beam to the lift basket’s guardrails, as alleged under instance (b), it did not alter the lift but simply placed a load on it. The Secretary maintains that this nonetheless created the potential for instability in the lift which, in his view, constitutes a physical alteration. But even assuming the beam could cause the lift to become unstable, that alone would not establish that the lift had been physically altered, as instability can have other causes—for example, the manufacturer’s manual refers to operating the lift on a “sloping, uneven or soft surface” as a “tipping hazard[].”
However, on the one occasion when “The Company” used clamps to attach the beam to the lift’s guardrails, as alleged under instance (a), it did more than just place a load on the lift—it physically altered it. Under these circumstances, we find that “The Company” “field modified” the lift. Because this field modification was for a use—material handling—unintended by the manufacturer, “The Company” was required to have the lift certified under § 1910.67(b)(2), and its undisputed failure to do so establishes noncompliance. Accordingly, we affirm Item 1 based on instance (a), but vacate instance (b).