THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

 United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

Appearances:

Oscar L. Hampton, III, Esq., and Aaron Rittmaster, Esq.,

              U. S. Department of Labor, Office of the Solicitor, Kansas City, Missouri

                            For Complainant

Julie O’Keefe, Esq., and John F. Cowling, Esq.,

              Armstrong Teasdale, LLP, St. Louis, Missouri

                            For Respondent

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

            Thomas Industrial Coating, Inc. (TIC), is an industrial painting company. On February 17, 2006, two TIC crews were setting up a work platform beneath the Jefferson Barracks (J. B.) Bridge on the Missouri side of the Mississippi River, near St. Louis. As the crews worked, a section of the platform collapsed, leaving three employees dangling from vertical lines to which they had tied off. A fourth employee, James Belfield, was not tied off. He plunged approximately 100 feet into the Mississippi River. His body was not recovered until a fisherman found it, nine weeks later.

            Occupational Safety and Health Administration (OSHA) compliance officer Steven Eterno arrived at the site shortly after TIC crew members rescued the three employees hanging from the vertical lines. Eterno inspected the site and subsequently took photographs. He also interviewed employees and other witnesses. Based upon Eterno’s inspection, the Secretary issued serious and willful citations to TIC on August 9, 2006. TIC timely contested the citations.

            Serious citation No. 1 alleges TIC violated 29 C. F. R. § 1926.451(g)(1)(i) (item 1) for failing to protect each employee on a catenary scaffold by a personal fall arrest system and 29 C. F. R. § 1926.502(d)(10)(i) (item 2) for failing to provide separate lifelines for each employee working on a suspended platform. The Secretary proposes a penalty of $4,200.00 for each item.

            Willful citation No. 2 alleges TIC violated 29 C. F. R. § 1926.106(d) (item 1) for failing to have a lifesaving skiff immediately available where employees were working over or adjacent to water. The Secretary proposes a penalty of $56,000.00 for this item.

            The court held a hearing in this case from September 22 through September 27, 2008. TIC stipulated jurisdiction and coverage (Tr. 5). TIC denies it violated any of the cited standards and asserts the affirmative defense of unpreventable employee misconduct for items 1 and 2 of citation No. 1.

            For the reasons explained in this decision, the court vacates item 1 of citation No. 1, affirms item 2 of citation No. 1, and assesses a penalty of $4,200.00 for item 2. The court affirms as serious item 1 of citation No. 2 and assesses a penalty of $7,000.00. TIC’s motion to dismiss item 1 of citation No. 2, claiming the Secretary improperly promulgated § 1926.106(d) is denied.

Background

            Donald (Don)Thomas, owner and president of TIC, founded the company in 1991. TIC paints industrial facilities, structures, and vessels, such as warehouses, bridges, water towers, locks, dams, casinos, barges, and tugboats (Tr. 611-613, 616). Its office is located in Pevely, Missouri.

TIC’s work is seasonal, with as few as four projects in the colder months and as many as twenty-four in the warmer months. Approximately 70 percent of TIC’s projects are in the St. Louis, Missouri, area (Tr. 613-616). Wayne Long is TIC’s safety environmental manager (Tr. 1269). Each of TIC’s projects are overseen by a project manager, who is a salaried employee, and a superintendent, who may or may not be a Union painter. TIC’s crews, made up of foremen and workers, are all Union painters or ironworkers. Approximately 80 percent of the Union painters work for TIC full-time (Tr. 617-618, 776, 779).

            The J. B. Bridge consists of a pair of tied arch bridges spanning the Mississippi River between Columbia, Illinois, and St. Louis, Missouri. It carries six lanes of traffic (three eastbound and three westbound) for Interstate 255 and U. S. Highway 50. In November 2005, TIC bid to sandblast and repaint the undercarriage and other steel components of the bridge. The St. Louis Bridge Company, the project’s general contractor, awarded TIC the contract. TIC began work on the bridge on February 6, 2006, and was scheduled to complete the project by September 2006 (Tr. 620-624).

            Don Thomas, who acts as project manager for TIC’s larger projects, was the project manager for the J. B. Bridge. The superintendent was Kevin Sparks (Tr. 619). Alan Jackson was the foreman over one crew of four men: James Belfield, Manuel Guttierez, Severo Pasillas, and Daniel Pulido. Belfield was not a foreman and did not act in a supervisory capacity. Ironworker Tate Manning was working on the other crew as a foreman-in-training. He reported to Jackson (Tr. 618, 768, 1446).

            On February 17, 2006, the TIC crews were installing a Safespan platform under the bridge, from which the workers would sandblast and paint. To install a Safespan system, employees rig cables from one abutment to the other under the bridge, then attach pans on top of the cables. When completed, the pans serve as the workers platform (Tr. 96).

            Sometime after 11:00 a. m., one of the cables supporting the platform under the westbound bridge snapped, and a portion of the platform fell. Pasillas, Pulido, and Guttierez were wearing harnesses and had attached their lanyards to vertical lines anchored to the diagonal I-beams underneath the bridge. They dangled above the water. Belfield, who was wearing a harness, was not tied off to a vertical line. He plunged into the Mississippi River. Tate Martin saw him surface and go under again as he was swept down river by the current. Martin observed a tugboat coming upriver towards Belfield and assumed it would rescue him (Tr. 801-802, 1469-1474).

            Various emergency personnel arrived quickly at the bridge, including firefighters from the rescue squad of the Mehlville Fire Department (M.F.D.), led by Captain Terry TenBroek. The remaining TIC employees had initiated a plan to rescue the three employees hanging from the vertical lines, and were in the process of doing so when the rescue squad arrived. Captain TenBroek determined the plan was viable (Tr. 247). He and his squad stood behind the TIC employees and assisted in hoisting the rescue line to raise the three men to the platform. None of the three men sustained serious injuries (Exh. C-34).

            John O’Heron Jr. was the pilot of the tugboat Dorothy that Martin had seen coming upriver towards Belfield. The Dorothy had been moored on the outside of the dry dock at J. B. Marine, approximately 3,000 feet south of the J. B. Bridge (Tr. 226). O’Heron happened to look up at approximately 11:30 a. m. and saw the three men dangling from the bridge. Thinking he could be of assistance, O’Heron unmoored the tugboat and headed upstream toward the bridge. When he was within 300 to 500 feet of the bridge, someone on the bridge waved him off. O’Heron halted his approach. O’Heron was unaware a man had fallen into the river. No other vessel responded to the emergency situation (Tr. 197-206, 226).

            The Missouri State Water Patrol began rescue and recovery efforts on the river for Belfield. Belfield had fallen from a height of approximately 100 feet. The air temperature at the time of the platform collapse was approximately 50 degrees Fahrenheit and the water temperature was approximately 38 degrees Fahrenheit. By the next day, the air temperature had dropped to approximately 5 degrees Fahrenheit. Experienced rescue personnel recognize that a fall of approximately 100 feet into a river is usually fatal. If a person does survive the fall, he or she can only survive for 5 to 10 minutes in water that is 38 degrees (Exh. C-35; Tr. 506). The Missouri State Water Patrol searched the river for five days, working in twelve-hour shifts, to no avail (Tr. 516).

            Nine weeks later, on April 18, 2006, a fisherman called 911 to report he had found a man’s body floating approximately two miles south of the J. B. Bridge. Foreman Alan Jackson, who was also James Belfield’s cousin, was called to the scene. He identified the body as Belfield’s, pointing out a USMC tattoo on his right upper arm. Belfield was still wearing his body harness (Exh. C-35).

Discussion

            The Secretary has the burden of proving each violation by a preponderance of the evidence.

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., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Citation No. 1

Item 1: Alleged Serious Violation of § 1926.451(g)(1)(i)

            The citation alleges “a fall protection system was not utilized by one of the four man crew erecting the temporary work platform. On or about February 17, 2006, this exposed employee fell approximately (100') one hundred feet down into the river.” Section 1926.451(g)(1)(i) provides:

Each employee on a boatswains’ chair, catenary scaffold, float scaffold, needle beam scaffold, or ladder jack scaffold shall be protected by a personal fall arrest system[.]

            The Secretary classifies the scaffolding system used by TIC as a “catenary scaffold,” which § 1926.450(b) defines as “a suspension scaffold consisting of a platform supported by two essentially horizontal and parallel ropes attached to structural members of a building or other structure. Additional support may be provided by vertical pickups.” Thomas agreed with this classification, describing the Safespan scaffold as “the cable system with the decking that goes on top of it that was put under all expansions . . . for Thomas Industrial Coating to do its sandblasting and painting” (Tr. 638).

            TIC does not dispute the Secretary established the first three elements of proof (application, noncompliance, and employee’s exposure) of the violation. It is undisputed that Belfield was not protected by a personal fall arrest system at the time of the collapse, in violation of the terms of the standard, and it is self-evident that he was exposed to the hazard of falling into the river. TIC argues the Secretary failed to establish it had actual or constructive knowledge that Belfield was not tied off when working on the scaffold the day it collapsed.

            The Secretary does not claim TIC had actual knowledge Belfield was not tied off on February 17. She contends, however, Jackson, TIC’s crew foreman, had constructive knowledge of the violation because “employees not properly tied-off were endemic to its worksites” (Secretary’s brief, p. 11). “[W]here a supervisory employee has actual or constructive knowledge of the violative conditions, that knowledge is imputed to the employer, and the Secretary satisfies [her] burden of proof without having to demonstrate any inadequacy or defect in the employer's safety program." Dover Elevator Co., Inc., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). The Secretary establishes constructive knowledge by proving that, with the exercise of reasonable diligence, an employer could have known of the violative condition. An employer must make a reasonable effort to anticipate the particular hazards to which its employees may be exposed during the course of their scheduled work.             TIC has had a written safety program since its inception in 1991. Wayne Long had been TIC’s safety environmental manager for approximately ten years at the time of the hearing (Tr. 1269). TIC implemented a mandatory “100% tie-off” rule requiring any employee exposed to a fall of six or more feet to tie off using a personal fall arrest system. The personal fall arrest system used by an employee to tie off consists of a full body harness and a lanyard that the employee attaches to an anchor point (Exh. C-22, p.5; Tr. 1284).

            Jackson conducted five toolbox meetings attended by Belfield in which he reviewed fall protection safety (Exh. R-22; Tr. 1461-1462). Sparks held a toolbox meeting on the J. B. Bridge project on February 13, 2006, which Belfield attended. Sparks reviewed the 100% tie-off rule (Tr. 1119, 1143). The record establishes Belfield knew he was required to tie off while on the platform.

             Tate Martin, who was designated as foreman-in-training, testified that after the crews returned from their break, he noticed Belfield (Tr. 799-800):

had walked up underneath the beam and went to the other side of the bridge, the upriver side of the northbound bridge. And, I couldn’t see him, because he went underneath the beam, and then he came back and then he walked back over in the middle of the bridge to where they were working. And, then, that just looked kind of –I don’t know. It just looked kind of different. . . . It just looked like it was just a far distance for him to go if he was properly tied off. . . . Probably not even five or six seconds after that, the platform fell.

            Foreman Alan Jackson had worked with Belfield for a year and a half to two years prior to the platform collapse, and had never seen him fail to observe the 100% tie-off rule (Tr. 1455). Jackson testified Belfield “complied with the requirements more than just about anybody” (Tr. 1454). Jackson had watched Belfield working the morning of February 17. When Jackson initially saw him, Belfield was standing on the Safespan platform and handing sheets and clips to Manuel Guttierez. At that time, Jackson testified, “[Belfield] had his vertical lifeline, which was anchored to the beam above, and a rope grab and his harness and lanyard” (Tr. 1469).

            Later that morning, at approximately 11:15 (apparently the same time Martin saw Belfield), Jackson spoke to Belfield as Jackson was standing on the bridge deck above him. Jackson could see Belfield’s face through a gap between the parapet wall and a bridge beam. Jackson could not see Belfield’s body. Belfield asked Jackson to raise a cable. Jackson turned to do so, when the cable snapped (Tr.1472-1473). Jackson stated, “I just heard the pans start clattering and I immediately went back to the wall and I actually jumped from the bridge deck down to the beam. . . .I jumped to the lower beam which I had to roll underneath the guardrail to get to the Safespan platform. And that was when I came out on the platform and they were yelling that Jimmy was in the river” (Tr. 1473-1474).

            The Secretary argues Jackson should have known Belfield might not tie off because it had previously disciplined employees in the past for not tying off; its “track record” indicated TIC “had every reason to know that employees were not properly tying-off” (Secretary’s brief, p. 11). The record establishes TIC had continuing problems getting its employees to tie off (Exh. C-29). TIC had never disciplined Belfield for failing to tie off, however, and there is no evidence Belfield had ever before failed to tie off. Furthermore, Jackson had observed Belfield working earlier that morning, and he had been properly tied off. According to Martin, Belfield had just returned from a break. The platform collapse occurred within minutes of his return. There is no evidence Belfield was in violation of the 100% rule for more than a few minutes. Jackson’s failure to detect Belfield’s violative conduct in those few minutes is not evidence Jackson failed to exercise reasonable diligence.

            The Secretary has failed to prove TIC could have known, with the exercise of reasonable diligence, that Belfield was not tied off at the time of the platform collapse. The record establishes Jackson had worked with Belfield for at least a year and a half, and knew him to be a safety conscious employee. Whatever the reason for Belfield’s lapse in judgment, it was a momentary occurrence that Jackson could not have anticipated. Item 1 is vacated.

Item 2: Alleged Serious Violation of § 1926.502(d)(10)(i)

            The citation alleges, “[E]mployees working from a suspended work platform did not have independent lifelines, with separate anchorage points capable of supporting at least 5,000 pounds (22.2 kN) per employee attached for a complete personal fall arrest system.” Section 1926.502(d)(10)(i) provides:

Except as provided in paragraph (d)(10)(ii) of this section, when vertical lifelines are used, each employee shall be attached to a separate lifeline.

            TIC does not dispute § 1926.502(d)(10)(i) applies to its worksite at the J. B. Bridge. The exception noted in the standard, § 1926.502(d)(10)(ii), applies only to elevator shaft construction, which is not at issue here. The cited standard applies to situations, such as in the instant case, where employees use vertical lifelines for fall protection.

            There is no dispute that Guttierez was attached to a separate lifeline. The Secretary contends, however, that Pulido and Pasillas were attached to the same vertical line. TIC argues Pulido and Pasillas were properly attached to separate lifelines that became entangled when the platform collapsed and the two men swung towards each other. Determination of whether or not TIC violated the terms of the standard hinges on witness credibility.

The Secretary’s Witnesses

Captain Terry TenBroek

            Captain TenBroek is a firefighter with the M. F. D. rescue squad. He led the rescue squad at the J. B. Bridge on February 17, 2006 (Tr. 231, 234). Captain TenBroek wrote a report of the incident, which states in pertinent part (Ex. C-34):

Upon arrival at approx. 11:38 hrs I was advised by D. C. J. Hampton that there was a victim in the river and three victims hanging by tether ropes from the underside of the west-bound lanes of the bridge. There were two individuals hanging from one rope and one hanging from a second rope. I relocated my truck to the west bound lanes above the victims and my crew and I donned our rappelling harnesses and flotation devices. We, along with Pvt. T. Daniels from Fire truck 1710, descended down the superstructure of the bridge onto a cat walk adjacent to the scaffolding being constructed by the painting crew. At this point we secured ourselves to the bridge with safety ropes and then descended onto the scaffolding. Through my initial observations of the emergency scene and during the efforts to secure myself and ensure the safety of all my men I became aware of a rescue plan being initiated by the scaffolding crew. I appraised the situation and decided that their plan was viable and that my best course of action was to assist with the rescue effort in progress. My men and I worked alongside the scaffolding crew to lower a line to the two, tethered together, victims. Both men were conscious and alert and were able to assist in their own rescue by grabbing the line and hooking it to their harnesses. At this point my men and I, along with the half dozen or so men from the scaffolding crew, pulled the victims up to the scaffold.

            Captain TenBroek testified that by the time he and his crew arrived on the scaffolding, one of TIC’s workers (apparently Jackson) was shimmying out on a beam to attach a pulley that was used to lower the rescue rope (Tr. 243-244). There were two or three TIC workers in front of Captain TenBroek. He was within 3 feet of the edge of the scaffold during the rescue operation (Tr. 245-246).

            Captain TenBroek stated he looked over the edge of the scaffolding and saw Pulido and Pasillas hanging back to back. He concluded they were connected to one line (Tr. 236). TenBroek stated he was certain of this fact because:

as they came up as they were pulled up, the rope was swung out to them. One of the guys grabbed the rope and hooked it on and was pulled up, and as he was pulled up to the scaffolding level, the other person stayed down below the scaffolding level because they were tethered on the same rope, and then each had individual ropes from that center rope. (Tr. 237-238)

            . . .

[Pulido and Pasillas] were brought into the edge of the decking, into the edge of the scaffolding with one line and one man. They both came together because they were tethered together, and then one man was pulled up and onto the scaffold, and that left the other man down. (Tr. 248-249)

Thomas Daniels

            Thomas Daniels is a fire fighter with the M. F. D. (Tr.168). He assisted with the rescue of the employees at the J. B. Bridge on February 17. Daniels climbed down to the platform and stood next to one of the TIC workers at the edge. He helped pull up the employees (Tr. 182). He testified Pulido and Pasillas appeared to be tethered to one line (Tr. 176). Daniels concluded they were tethered together from the manner in which they were pulled up (Tr. 181):

They were pulled up together because, obviously, there was a lot of weight, and we pulled the first one up and the other came right after . . .[T]here was obviously a lot of weight when we started pulling them up. That’s why I know that they came up at the same time because there was–obviously, when we pulled them up, the first guy was unhooked, and there was obviously weight left on that line until the next one came up.

Kevin Reis

            Kevin Reis is a fire fighter with the M. F. D.(Tr. 282). He was the driver for the rescue squad that responded to the emergency at J. B. Bridge on February 17. Reis climbed down with the rest of the crew to the platform underneath the bridge. When asked what he observed once he arrived at the platform, Reis responded, “A lot of people running around and ropes hanging out at a distance. I was able to see one person out hanging on a lifeline, and there was another line hanging pretty much directly in front of me. I couldn’t see directly below me, but there was a line right in front of me, and then one out a little bit further” (Tr. 286). Reis was certain Pulido and Pasillas were tied to the same vertical line: “There was only one line hanging when we were pulling them up. I mean, it took a lot of manpower to lift them up, and all of a sudden one got up, and we got him completely standing and off the line. The other one came up like it was nothing” (Tr. 289).

            Although he was questioned repeatedly on the issue, Reis was unwavering in his testimony that there was only one vertical line for Pulido and Pasillas:

Q. [H]ow did you know they were on the same line?

Reis: Because there was only one line hanging in front of me going down to where they were.

            . . .

Q. A vertical line going down?

Reis: Correct.

Q. And, both employees attached to that line.

Reis: Yes.

Q. And you saw that?

Reis: Yes.

(Tr. 290).

Q. How many lifelines were there, where they were attached?

Reis: I saw one line hanging in front of me.

Q. Hanging in front of you as I’m looking out this window?

Reis: Correct.

(Tr. 296).

Q. Is it possible that there were lifelines that were twisted together?

Reis: No, sir.

Q. Why not?

Reis: Because I could see the line clearly.

Q. You could see the line clearly in front of you?

Reis: Yes, sir.

(Tr. 297-298).

Q. Did you see a [rescue] line being dropped down?

Reis: Yes, sir, I did.

Q. One line was dropped down?

Reis: Correct.

Q. Did you see how it was attached?

Reis: No, sir, I did not.

Q. And, that was the line you pulled?

Reis: Yes, sir.

Q. Was another line dropped down to get the second guy up?

Reis: I did not see one.

. . .

Q. So, there may have been a second line?

Reis: I did not change lines when I was pulling them up. I didn’t have to let go of the first rope to pull up the second victim.

(Tr. 299-300).

TIC’s Witnesses

Alan Jackson

            Jackson testified he observed Pulido and Pasillas tied off to separate lifelines on February 17, 2006 (Tr. 1470). After the platform collapsed, Jackson phoned Kevin Sparks, then set about rescuing the three dangling employees. Jackson testified (Tr. 1475-1476):

We got a cable choker and a snatch block and we hung it on the diagonal beam that we had our lifelines hooked to, and I looped the rope through the snatch block and . . . then we lowered that rope down and [Pulido and Pasillas] hooked it into their harness and we pulled them up with that.

            Jackson stated Pulido and Pasillas were connected to two separate lifelines: “[T]hey were wrapped up together in them. They had spun, I guess, whenever they went down” (Tr. 1476). Jackson did not look up to see whether two lines were hanging from separate anchor points (Tr. 1476, 1521). Jackson said members of the M. F. D. rescue squad “had come down on the beam, but they never came down on to the platform to help us, that I seen” (Tr. 1478). Jackson stated only he and his crew members were pulling on the rope to hoist up the two men (Tr. 1479). When asked why the M. F. D. fire fighters testified they stood on the platform and helped pull up Pulido and Pasillas, Jackson responded, “The only reason I can think of is because they were embarrassed that they didn’t do anything” (Tr. 1538).

Tate Martin

            Martin testified that when Pulido and Pasillas were pulled up, they were on separate lines (Tr. 817). He conceded the M. F. D. fire fighters were on the platform, but did not help pull up Pulido and Pasillas (although later he stated the firefighters “did have their hands on the rope” (Tr. 854). He charged the fire fighters with lying about their participation in the rescue (Tr. 826). Martin stated, “I was on the front helping pull my friends up. They were back behind me” (Tr. 827). When asked how he knew what their testimony was (the witnesses were sequestered), Martin responded, “Because they were on Channel 2, Channel 4, and Channel 5 news, the next day, after the rescue, Mehlville Fire Department said that they had rescued three guys . . . I know that they said they rescued these guys. And, we were involved. It wasn’t them. . . . [I]t’s just kind of a needle because, you know, it was our idea, it was our rescue plan and they said it was their idea, it was their rescue plan” (Tr. 829). When asked about his apparent animosity towards the fire fighters, Martin said, “[T]he animosity is, obviously, one of our close friends died, one of our persons that we worked with. And, then, on the same–on the eve of that, of us putting our lives at risk and trying to rescue these guys, they’re just going to stand up and act like they’re the heroes in the front line, but actually in the back line, they weren’t even hardly helping us” (Tr. 830).

Deposition Testimony of Wayne Long

            Wayne Long testified under oath in a deposition taken for a civil case arising from the platform collapse on the J. B. Bridge. In the deposition, taken on December 5, 2007, Long appeared to know Pulido and Pasillas were attached to the same vertical line (Exh. C-73, pp. 122-123):

Q. You indicated Pulido and Severo [Pasillas] were both attached to the same safety line, albeit at different points?

Long: Different, opposite ends. A hundred foot rope, and one was on that end. A hundred foot line, the other one was on that end.

Q. Okay. Were both ends attached to the bridge someplace?

Long: Yes.

Q. Is that a problem, from Thomas’s safety–Thomas’s standpoint, to have two men tied off on the same safety line?

Long: Yes. It’s against company practice. It’s against OSHA policy, because each individual has to be attached to their individual safety line.

            At the hearing, Long claimed his testimony in the deposition was “one of the scenarios that I testified to” (Tr. 1364). Long stated, “I was sharing with [the attorney] the different speculations that I had heard when I was doing my investigation of what actually happened that day. I was explaining the different scenarios I was told and that was one of a few scenarios that I told him I heard” (Tr. 1429).

            The excerpted deposition testimony does not support Long’s claim that he was discussing different scenarios he had heard. Immediately prior to the first quoted question, Long had been talking about Belfield falling. When Long is confronted with the statement, “You indicated Pulido and Severo were both attached to the same safety line,” it is not in the context of exploring different scenarios. If there are sections of the deposition clarifying that Long’s statement that Pulido and Pasillas were tied off to the same line was speculative, TIC did not adduce them.

Credibility Determination

            At the time of the hearing, Alan Jackson was still working as a foreman for TIC (Tr. 1446). Tate Martin was working for another company, but stated he would like to work for TIC again (Tr. 833-834). The day of the platform collapse, both Jackson and Martin were in supervisory positions and thus responsible for discovering safety infractions on the site. Both men claim to have observed Pulido and Pasillas tied off to separate vertical lines. Jackson stated the M. F. D. fire fighters were not on the platform and did not participate in the rescue of the hanging employees in any way. Martin remembers them being on the platform, and even holding the rescue rope, but angrily denies they provided any substantive assistance. Belfield, who was a cousin to Jackson and a close friend of Martin’s, had just plummeted into the Mississippi River. Three of their co-workers were hanging from the bridge. Jackson and Martin were shaken by the collapse, anxious about the fate of Belfield, and confronted with the stressful (and unfamiliar) rescue of their co-workers. They were emotionally involved in the situation.

            The M. F. D. rescue squad was specifically trained to handle rescue situations. Captain TenBroek, Daniels, and Reis did not know any of the TIC employees and were able to approach the situation in a professional manner not colored by emotional upset. The testimony of each fire fighter corroborates the others, as well as Captain TenBroek’s written report. They were each calm in demeanor, stating their answers in a straightforward manner with no hesitations or evasions. Each of them testified Pulido and Pasillas were tied to the same vertical line. Because they assumed a secondary role in the rescue of Pulido and Pasillas, they were better able to observe the working conditions and rigging. Reis was the only eye-witness who made a point of observing that a single line descended from the anchor point above them to Pulido and Pasillas below. He gave uncontradicted testimony that only one vertical line dropped down to the employees. A fire fighter trained in rope rescues is well able to recognize whether a rope hanging directly in front of him is, in fact, a single line or two lines twisted together. The fire fighters are disinterested third-party witnesses with no reason to state the employees were tied to a single line when they were not.

            Jackson and Martin, on the other hand, each have an interest in promoting the notion that Pulido and Pasillas were properly tied off to separate lines. As supervisory employees, they were responsible for safety at the site. Jackson’s testimony demonstrates he was mistaken in his observations at the time of the rescue. Only Jackson contends the fire fighters were not on the platform behind him during the rescue, a statement contradicted by every other eyewitness, including Martin. This may be due to the stress and emotional turmoil of the situation, but it raises doubts about the accuracy of Jackson’s other observations, including his testimony that the employees were tied off to separate lines.

            Martin, in general, was a credible witness. He was well-spoken and gave detailed answers. On the subject of the rescue, however, he was less than reliable. His demeanor changed. He became belligerent when talking about the rescue. He expressed unabated anger toward the M. F. D. fire fighters. He returned repeatedly to their purported lying in taking credit for the rescue. Although the fire fighters freely acknowledged the TIC workers initiated and carried out the rescue with only minimal assistance from them, Martin seemed obsessed with the fire fighters’ perceived grab for acclaim. It is unclear whether Martin actually believes the fire fighters conspired to deprive TIC of its rightful credit, or if, by portraying the fire fighters as liars, Martin can cast doubt on their claim the employees were tied to the same vertical line. Regardless, Martin’s testimony regarding the rescue and the manner in which Pulido and Pasillas were tied off is deemed unreliable.

            Long was not an eye-witness to the rescue. In determining whether TIC violated the terms of the standard, the court gives no weight to Long’s deposition testimony stating Pulido and Pasillas were tied to the same line.

            The court resolves the conflicting testimony in favor of the fire fighters who stated Pulido and Pasillas were tied off to a single vertical line. Captain TenBroek, Daniels, and Reis were more credible in their testimony than Jackson and Martin. Reis in particular testified unequivocally and convincingly the employees were tied off to a single vertical line. The Secretary has established the terms of § 1926.502(d)(10)(i) were violated.

Employee Exposure

            Pulido and Pasillas were exposed to a fall of approximately 100 feet into the Mississippi River.Knowledge

            The Secretary argues TIC had constructive knowledge of the violation. The court found in the previous section that the Secretary failed to prove TIC had constructive knowledge that Belfield was not tied off at the time the platform collapsed. This item differs in significant ways.

            Belfield was a single employee who had either not tied off when he returned from break, or who had briefly unclipped his lanyard to walk over and talk to Jackson. He was not actively working on a specific task when the collapse occurred. Pulido and Pasillas, however, were working at the time of the collapse. They had to have agreed to tie off to the same line, despite their training not to do so.

              Martin was designated as foreman-in-training. Although he reported to Jackson, he was in charge of the second crew. As an employee to whom authority over other employees was delegated, Martin is considered a supervisor and his knowledge may be imputed to TIC. A. P. Horo, 14 BNA OSHC 2004, 2007 (No. 85-369, 1991). Martin testified Pulido and Pasillas were working immediately across from his crew, so the two crews could work at the same pace and “mimic” one another (Tr. 793). Martin observed Jackson’s crew working 50 to 70 feet away from him, with no barriers or obstacles blocking his view. For most of the morning, Pulido and Pasillas were working side by side each other (Tr. 798-799). Martin stated, “I was paying attention to what they were doing” (Tr. 822). Their backs were to Martin the entire time, so he could see their lanyards clipped to the line (Tr. 838).

The Commission has held that “the conspicuous location, the readily observable nature of the violative condition, and the presence of [the employer's] crews in the area warrant a finding of constructive knowledge.” Kokosing Constr. Co., 17BNA OSHC1869, 1871, 1993-95CCH OSHD ¶ 31,207, p.43,723 (No. 92-2596, 1996). Additionally, constructive knowledge may be found where a supervisory employee was in close proximity to a readily apparent violation. Hamilton Fixture, 16BNA OSHC1073, 1089, 1993-95CCH OSHD ¶ 30,034, p.41,184 (No. 88-1720, 1993), aff'd, 28F.3d 1213 (6th Cir. 1994) (unpublished).

KS Energy Services, Inc., 22 BNA OSHC 1261 (No. 06-1416, 2008).

            Martin was a supervisory employee working all morning across from Pulido and Pasillas, to whom he “was paying attention.” The Secretary has established TIC, through Martin, had constructive knowledge of the violation.

Serious Classification

            The violation of § 1926.502(d)(10)(I) is properly classified as serious under § 17(k) of the Occupational Safety and Health Act of 1970 (Act). As discussed, TIC had constructive knowledge the two employees were tied off to a single vertical line and were exposed to a fall of 100 feet if the line had not held.

Unpreventable Employee Misconduct

            TIC argues if a violation of § 1926.502(d)(10)(i) is found, it is the result of unpreventable employee misconduct on the part of Pulido and Pasillas. In order to establish the affirmative defense of unpreventable employee misconduct, an employer is required to prove (1) that it has established work rules designed to prevent the violation, (2) that it has adequately communicated these rules to its employees, (3) that it has taken steps to discover violations, and (4) that it has effectively enforced the rules when violations are discovered. Precast Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d without published opinion, 106 F. 3d 401 (6th Cir. 1997).

            TIC declined to produce Pulido and Pasillas as witnesses to explain their misconduct to the court.

            As found in the previous section, TIC had an established work rule requiring each employee to tie off to an independent vertical line when such lines were used for fall protection. The record indicates TIC communicated this rule to its employees during safety training, and toolbox talks.

            TIC has failed to establish that it took steps to discover violations. TIC made some effort to perform safety checks. John Sullivan, an insurance company safety consultant working for TIC, conducted seven safety audits (four on the same project) during a two year period when TIC had 80 to 110 worksites (Tr. 345-346, 709). Although not recorded Don Thomas and Wayne Long testified they conducted periodic unannounced inspections of TIC’s various worksites (Tr. 1272-1273). Kevin Sparks performed a weekly site safety checklist (Tr. 1118). Alan Jackson monitored his site and crew for violations (Tr. 1457).

            Jackson, however, was responsible for two crews and was himself working. When asked how many lanyards Belfield had on his safety harness on February 17, Jackson replied, “I really don’t remember. I had, what, five guys there that day” (Tr. 1493). (Actually, Jackson was in charge of two crews totaling eight men). Jackson’s work duties prevented him from adequately monitoring the employees for safety infractions. His testimony establishes he corrected safety infractions when they occurred in front of him, but he did not take steps to discover them (Tr. 1516-1517):

Q. You didn’t make sure that every single guy was tied off when they were working for you in and around February 17, 2006, did you?

Jackson: Every one that I saw, I did.

Q. You didn’t make sure and check to make sure every single person was tied off, though, did you?

Jackson: If they were in my view, they were.

Q. You had two crews, right?

Jackson: Yes, sir.

Q. Were you splitting your time among the crews.

Jackson: I stayed more with my crew than the other one.

Q. With Mr. Belfield and the other three individuals?

Jackson: Yes.

            Although Jackson spent more time with his own crew, three out of the four violated fall protection rules on February 17. TIC has failed to establish it took adequate steps to discover violations.

            TIC has also failed to establish it effectively enforced the rules when violations are discovered. Pulido and Pasillas were not disciplined for their misconduct. Long’s deposition testimony, which was not considered for purposes of determining whether a violation occurred, is relevant here. Long gave his deposition on December 5, 2007, ten months after the platform collapse and ten months before the hearing in this proceeding. It is clear from the deposition that Long’s investigation of the collapse caused him to realize Pulido and Pasillas were tied to a single line. Yet Long, TIC’s safety environmental manager, never disciplined them. Although TIC adduced evidence that it did discipline employees for safety violations (Exh. R-29), the record establishes discipline was not universally administered when safety infractions were discovered.

            Effective enforcement of the rules requires more than a well-written program. TIC’s work is, as Martin agreed, “inherently dangerous” (Tr. 821). Yet Kevin Sparks acknowledged that it is “completely foreseeable” employees will not always properly tie off (Tr. 1247).

            The Secretary claimed fall protection violations were “endemic” at TIC’s worksites, and there is some merit to that charge. TIC has had long-standing problems getting its employees to observe safety rules (Exh. C-29). William McDonald is OSHA’s area director for the St. Louis office (Tr. 320). McDonald met with Long after the Secretary issued the citations in this case. McDonald testified Long told him “he tried to comply, but he’s just going to have to stamp out the stupid; he’s got to get rid of the stupid. . . . [H]e said, ‘Well, you know, I’m doing what I can. I’m just going to have to regulate stupid on the job sites’” (Tr. 330-331). TIC’s workforce has exhibited a continuing resistance to abiding by the company’s rules. Given this propensity, it cannot be said TIC effectively enforces its work rules.

            TIC’s employee misconduct defense must fail. Item 2 is affirmed.

Citation No. 2

Item 1: Alleged Willful Violation of § 1926.106(d)

            The citation alleges, “[A] lifesaving skiff or the equivalent was not made available for employees working from a temporary, suspended, working platform beneath the Jefferson Barracks Bridge. On or about February 17, 2006, one employee fell from this platform into the Mississippi River following an unexpected collapse of the work platform.” Section 1926.106(d) provides:

At least one lifesaving skiff shall be immediately available at locations where employees are working over or adjacent to water.

            The standard applies to TIC’s worksite. TIC’s employees were working above water, on the J. B. Bridge. Compliance officer Eterno estimated as many as 25 TIC employees were exposed to the hazard of drowning due to the lack of a rescue skiff (Exh. C-15). TIC’s decision not to locate a skiff below or near the bridge was made by its president Don Thomas. TIC knew the conditions at the site.

TIC’s Motion to Dismiss Item 1 of Citation No. 2

          TIC filed a motion to dismiss this item on September 15, 2008, arguing the Secretary improperly promulgated § 1926.106(d). The company contends paragraph (d) was not part of the proposed Construction Safety Act (CSA) rule submitted for public comments in February 1971. Paragraph (d) did not appear until it was placed in the final rule in April 1971. Therefore, TIC argues, employers were not provided an opportunity for notice and comment.

            Under § 6(a) of the Act, the Secretary was authorized to adopt national consensus standards and established Federal standards without lengthy rulemaking procedures for two years from the effective date of the Act (April 27, 1971). This authority ended April 27, 1973.

                                                Section 1910.2(h) of 29 C.F.R. defines”established Federal standards” as “any operative standard established by any agency of the United States and in effect on April 28, 1971, or contained in any Act of Congress in force on the date of enactment of the Williams-Steiger Occupational Safety and Health Act.”

            The Secretary initially promulgated § 1926.106(d) as a CSA standard on April 17, 1971. 36 Fed. Reg. 7340. The standard became effective on April 24, 1971, for advertised federal contracts, and on April 27, 1971, for negotiated federal contracts. CSA standards became effective one day before the Act came into effect. Underhill Construction Corporation, 526 F. 2d 53, 55 (2d Cir. 1975). Therefore, §1926.105(d) meets the definition of “established Federal standard” because it was an operative standard in effect on April 28, 1971.  

            The instant case is distinguishable from L. E. Myers Co., 12 BNA OSHC 1609 (No. 82-1137, 1986), which TIC cites in support of its motion. In Meyers, the Commission found the Secretary lacked authority to make substantive changes to established Federal standards when adopting them as OSHA standards under § 6(a). Here, the CSA standard promulgated on April 17, 1971, included paragraph (d). The Secretary then adopted that standard, including § 1926.106(d) (then codified at 29 C. F. R. § 1518.106), verbatim in May 1971. She made no substantive changes to the standard.

            The Commission has held that an employer cannot challenge an OSHA standard based on procedural deficiencies in the adoption of its ancestor standard under other statutes in an enforcement hearing. General Motors Corp., GM parts Div., 9 BNA OSHC 1331 (No. 79-4478, 1981). An employer challenging an OSHA standard must also show it suffered prejudice resulting from the alleged procedural irregularities. Daniel International v. OSHRC, 656 F. 2d 925, 930 (4^th Cir. 1981). TIC’s motion is silent regarding any prejudice it suffered from being denied the opportunity to comment 37 years previously on paragraph (d).

            The court finds TIC’s motion is without merit and now denies it.

Noncompliance with the Terms of the § 1926.106(d)

            The applicability of § 1926.106(d) to TIC’s worksite, the exposure of the employees working on the Safespan platform, and TIC’s knowledge are not in dispute. The only element of the Secretary’s burden of proof at issue is whether or not TIC complied with the terms of the standard. It is undisputed TIC did not have a skiff under or near the J. B. Bridge (Tr. 109, 712).

            Section 1926.106 does not define “skiff.” The American Heritage Dictionary (Second College Ed.) defines it as, “A flat-bottomed open boat of shallow draft, having a pointed bow and a square stern and propelled by oars, sail, or motor.” Area director McDonald testified the Secretary would accept other vessels, including tugboats, as complying with the standard. He stated the employer has the discretion “to choose the type of boat they decide to put at that particular point” (Tr. 1574). The standard, also, does not define “immediately available.” “Immediately” means “without delay,” and “available” means “accessible for use; at hand.” The American Heritage Dictionary. TIC had fair notice of the standard. The company was aware of its requirements and had complied with it on previous bridge projects (Tr. 1366-1369, 1498).  

            The Secretary takes the position TIC simply ignored the requirements of § 1926.106(d). She asserts TIC “offered one excuse after another for its failure to have a rescue skiff immediately available” (Secretary’s brief, p. 4). Compliance officer Eterno testified Wayne Long told him TIC had difficulty getting employees to man a skiff for jobs over water because they found it “boring” and “demeaning” (Tr. 83). Long testified TIC was worried a skiff would be stolen or damaged. In addition, TIC did not want to pay for someone to transport the boat to and from the J. B. Bridge each day (Tr. 1371).

            One line of TIC’s defense is that it kept an unmanned skiff at a remote location in the event of an emergency . TIC claims it had a skiff located at the ACBL marina (formerly Louisiana Dock). Kevin Sparks testified he assigned himself the task of manning the rescue skiff should the need arise. His plan was to “jump into his truck and drive down to the marina and get in the boat” (Tr. 110). Sparks conceded, however, that he was away from the worksite at times, and had not assigned anyone to man the skiff should the need arise in his absence (Tr. 1182). Alan Jackson had no idea where TIC’s skiff was located (Tr. 1512). Sparks estimated the drive from the bridge to the marina to be eight minutes (Tr. 1192). Compliance officers Eterno and Leland Darrow timed the trip, using the route described by Sparks, and found it took sixteen minutes (Tr. 600). This skiff was not at hand and was not accessible for use without delay. It does not meet the requirements of § 1926.106(d). Sparks did not drive to the skiff and take it out on the water the day Belfield fell in the river.

            TIC’s primary defense is that it made arrangements with various establishments along the Mississippi River to render assistance to the company in the event an employee fell into the river. TIC argues § 1926.106(d) is a performance standard, which allows the employer some leeway in meeting its requirements. Performance standards “require an employer to identify the hazards peculiar to its own workplace and determine the steps necessary to abate them.” Thomas Industrial Coatings, Inc., 21 BNA OSHC 2283, 228 (No. 97-1073, 2007). Area director McDonald agrees § 1926.106(d) is a performance standard (Tr. 1574).

            TIC presented extensive testimony in support of its position. TIC argues these arrangements met the substantive requirements of § 1926.106(d). The Secretary contends these “arrangements” are no more than a post hoc rationalization for not having a skiff at the site.  

            The Secretary disputes various claims by TIC’s witnesses addressing this issue. For the purposes of this decision, the court assumes arguendo that TIC’s narrative set out in its brief is accurate. In summary, TIC’s version of the evidence is as follows (TIC’s brief, pp. 3-9):

1. In December 2005, Don Thomas called Mark Bussen, president of Bussen Quarry which owns riverfront land south of the J. B. Bridge. Thomas inquired about keeping a jon boat under the bridge during the project for emergency purposes. Bussen showed Thomas areas where a boat could be moored at a the Quarry and at J. B. Marine. Thomas testified Bussen recommended against it. Bussen testified, “I wouldn’t go out on the river in a small boat” (Tr. 487). He told Thomas that J. B. Marine had boats and personnel at their facility “pretty much 24/7" (Tr. 481). Bussen advised Don Thomas to speak to Terry Bangert and George Foster about emergency assistance.

2. After speaking to Bussen, Thomas called George Foster and Pat Kapper of J. B. Marine, which operated the nearest tugboat service to the bridge. J. B. Marine which operates from 6:00 a. m. until 11:30 p. m. six to seven days a week, has eight harbor tugboats and during the day, one of the boats remains at J. B. Marine. Kapper stated that his company always had their marine radios on, and would assist in an emergency. He gave Thomas his office and mobile phone numbers for Thomas’s site safety list.

3. Thomas then contacted Dave and Terry Bangert, the owners of Limited Leasing which is a sand dredging operation. Limited Leasing owns six tugboats and several dredges, barges, and rigs. It keeps one or two boats, a dredge, and four to ten sand barges at Bussen Quarry throughout the year. Banger told Thomas that “We work daylight hours, but we don’t work Sundays, potentially” (Tr. 653). Thomas asked Bangert if he could contact him for help in an emergency, and if he could put Bangert’s name and number on a site safety list as part of an emergency action plan. Bangert agreed to help in any way he could. Terry Bangert testified that they made arrangements for Limited Leasing to assist whenever TIC needed help, whether in an emergency or to move equipment. Bangert described the arrangement as an “agreement” (Tr. 467). Bangert testified that “we have worked with them before and had a relationship where we worked with them, and whether they needed equipment moved or it was an emergency, we would help them out to the best of our ability” (Tr. 469).

4. Don Thomas also met with Sam Lewis, the manager of Louisiana Dock, on January 19. They agreed that TIC could leave a boat there as a back-up for responding to an emergency and for recovering equipment at the bridge site. The boat was not the primary rescue response.

5. The record shows that companies in the river industry always assist in an emergency. TIC’s expert Mark Tilford testified that there is a provision of the United States Code titled “Duty to Render Assistance,” which makes the failure to render assistance a punishable offense. If boat operators are in the area when an emergency occurs, they must respond. Pat Kapper testified that providing such assistance is “a rule” (Tr. 441). He testified that J. B. Marine has, in the past, provided assistance in emergencies. Mark Bussen likewise testified that the rule on the river is that “if there’s ever an emergency, everybody drops everything and helps out in emergency situations” (Tr. 488). Commercial boat operators are required to monitor marine radio channel 16, the emergency channel, at all times, and are required to respond in emergencies such as occurred in this case. TIC kept a marine radio at the job site which would allow TIC to communicate with the tugboat operators. Thomas instructed Kevin Sparks that the marine radio had remain on Channel 16.

6. The names and phone numbers for Bussen Quarry, Limited Leasing and other emergency services were placed on TIC’s list of emergency numbers for the J. B. Bridge project. The list was posted in the job trailer. TIC’s safety manager Wayne Long testified the emergency contact information was discussed during a project managers’ meeting in January, and that he created the emergency contact numbers, directions to the hospital, and the emergency procedures. Kevin Sparks testified that Thomas told him a week or two before the job started that these names and numbers were on the list because “they were to provide . . . emergency rescue if we needed them” (Tr. 1161-1162). Sparks understood that TIC had “arranged for Sam and Mr. Bangert and their accessibility with their boats to be the primary source of emergency action” (Tr. 1193-1194). He also was informed that J. B. Marine was one of TIC’s emergency contacts. He entered J. B. Marine’s number and all other emergency numbers in his cell phone prior to the accident. In addition, the marinas could be contacted by marine radio. Therefore, if Sparks had to contact a marina, the marina would be able to contact the boat crew in a split second. Jackson testified that if Sparks was gone from the jobsite and the emergency numbers were needed, he would call to get the numbers or would have had someone else call who had the numbers.

7. Don Thomas testified that he made these arrangements for emergency rescue, rather than placing a small boat manned by a worker underneath the J. B. Bridge, because the river can be extremely dangerous for small boats. Pat Kapper testified that the safety of placing a jon boat on the river depends on the water level, and on a high river, it would “absolutely not” be safe (Tr. 434). He also testified that it would be difficult for one person in a jon boat to pull a large man into the boat without falling into the water himself.

8. TIC’s expert Mark Tilford testified that the Mississippi is a free-running river at the St. Louis Harbor, which means it is not dammed. Therefore, the currents cannot be controlled. The river is subject to rises and falls that are sometimes sever enough to prompt the Coast Guard to shut down the channel.

9. Corporal Louis Amighetti of the Missouri Water Patrol confirmed that the river is treacherous. On February 18, Corporal Amighetti warned Belfield’s friends and relatives not to go on the river to search for Mr. Belfield because it was too dangerous. When Corporal Amighetti does a rescue operation, he likes to have at least two people on the boat so they have assistance to get someone into the boat.

            Even if the court accepts TIC’s version of the evidence to be true, the court finds TIC failed to comply with the terms of the standard. While TIC proved it met with some marine operators, it failed to establish it made arrangements that would meet the requirements of § 1926.106(d).

            TIC did not enter into any contracts with these businesses. The “arrangements” it made were vague assurances from the businesses that they would help if they had a boat available. Any emergency assistance TIC received would be voluntary and uncompensated. Bussen did not have a boat available to send if he received a call for emergency help (Tr. 480). Bangert stated he would help TIC if he could, “But, there were never any guarantees made that we would be there, you know, every day just for them” (Tr. 476). Thomas conceded that neither Bussen nor Lewis agreed to provide any rescue service. The point of having a dedicated skiff onsite is the immediacy of the response. Calling around to various businesses to see if they had a boat available defeats the purpose of the standard.

            TIC’s reliance on the emergency radio channel and the “Duty to Render Assistance” is also misplaced. Response time by a random boat to an emergency call on Channel 16 is uncertain and unpredictable. Again, the immediacy of the response, which is what § 1926.106(d) is designed to ensure, is lost.

            The inadequacy of TIC’s plan is demonstrated by its abysmal failure when the occasion arose for TIC to implement it. When Belfield fell into the water, the very situation TIC’s plan was designed to address, TIC failed to make a single call to any of its purported contacts for rescue services. Cell phone records show no one from TIC called any of the parties with whom it claims to have made arrangements (Exh. R-30). There is no evidence TIC used its marine radio to notify anyone it had a man in the water.

            The one and only boat that offered assistance to TIC was the Dorothy. O’Heron happened to look up and see TIC’s employees dangling from the J. B. Bridge. Even though he was moored at the J. B. Marina, one of TIC’s contacts, he did not hear of the situation by a phone call from TIC or on Channel 16. As he approached the bridge, he was focused solely on helping the men hanging from it. He did not know there was a man in the river. Belfield swept past the Dorothy unheeded.

            TIC claims it did not locate a skiff under or near the bridge because the river was too dangerous. The J. B. Bridge project was scheduled to last for nine months. TIC did not seek a variance from OSHA, under § 6(d) of the Act. Instead, TIC chose to substitute its judgement for the requirements of the standard. TIC’s alternate plan proved to be tragically inadequate to the emergency situation. The steps TIC took fell far short of meeting the requirements of § 1926.106(d).

            The Secretary has established TIC failed to comply with the terms of the standard. Item 1 is affirmed.

Willful Classification

The Secretary classifies this violation as willful.

            A willful violation is one “committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety.” Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993-95 CCH OSHA ¶30,059, p. 41, 330 (No. 89-2883, 1993)(consolidated); A.P. O’Horo Co., 14 BNA OSHC 2004, 2012, 1991-93 C.H. OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 1991). A showing of evil or malicious intent is not necessary to establish willfulness. Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3, 1995-97 C.H. OSHA ¶ 31,228, p. 43,788, n.3 (No. 92-3684, 1997), aff’d 131 F.3d 1254 (8th Cir. 1997). A willful violation is differentiated from a nonwillful violation by an employer’s heightened awareness of the illegality of the conduct or conditions and by a state of mind, i.e., conscious disregard or plain indifference for the safety and health of employees. General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991-93 C.H. OSHA ¶ 29,240, p. 39,168 (No. 82-630, 1991)(consolidated). A willful violation is not justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard, even though the employer’s efforts were not entirely effective or complete. L.R. Willson and Sons, Inc., 17 BNA OSHC 2059, 2063, 1997 C.H. OSHA ¶ 31,262, p. 43,890 (No. 94-1546, 1997), rev’d on other grounds, 134 F.3d 1235 (4th Cir. 1998); Williams Enterp., Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 C.H. OSHA ¶ 27,893, p. 36,589 (No. 85-355, 1987). The test of good faith for these purposes is an objective one; whether the employer’s efforts were objectively reasonable even though they were not totally effective in eliminating the violative conditions. Caterpillar, Inc. v. OSHRC, 122 F.3d 437, 441-42 (7th Cir. 1997); General Motors Corp., Electro-Motive Div., 14 BNA OSHC at 2068, 1991-93 C.H. OSHA at p. 39,168; Williams Enterp., Inc., 13 BNA OSHC at 1256-57, 1986-87 C.H. OSHA at pp. 36, 589.

A.E. Staley Manufacturing Co., 19 BNA OSHC 1199, 1202 (Nos. 91-0637 & 91-0638, 2000).

            The Secretary argues TIC was well aware of the requirements of § 1926.106(d), and had complied with them in the past. She contends TIC chose not to locate a skiff near the J. B. Bridge solely because it was concerned with property loss or damage, and because it did not want to pay for the daily transport of the skiff. In her estimation, TIC’s decision was driven purely by economic concerns, and the company sacrificed employee safety for cost-cutting measures.

            The court considers this to be a close case. The decision to rely on third party volunteers was terribly misguided. The record does indicate, however, TIC may not have been unreasonable in its belief it was not safe to place a skiff below the bridge. Bussen advised Thomas against putting a boat in the river (Tr. 487). Kapper testified a boat would be safe under normal river conditions, but not in high water (Tr. 434). In June 2004, TIC had crews working on the Poplar Street Bridge. TIC had a boat manned by Don Thomas’s son and another employee underneath th bridge. The boat was swamped and capsized when a larger boat passed by (Tr. 660-661).

            Corporal Amighetti testified it is dangerous to be on the river when it is at or near flood stage (Tr. 540). He also testified the temperature is a significant factor in water safety. The day after Belfield fell in the water, Corporal Amighetti warned Belfield’s friends not to go on the river searching for him because it was too dangerous (Tr. 569). He stated, [W]e don’t want anybody on the water when it’s extremely cold outside or icy conditions occur” (Tr. 561). TIC began work on the J. B. Bridge in February, when the average low temperature is 26.5 degrees Fahrenheit (rssWeather.com). The day after Belfield fell, the temperature was 5 degrees.

            Prior to the violation, Thomas determined it was too dangerous to place a boat near the J. B. Bridge. Thomas proceeded to contact various nearby establishments and discuss rescue services with them. Although he had no firm commitment from any of them to respond to an emergency if called, he made some effort to have a plan in place in the event of an emergency. While the plan was an utter failure, the Secretary has not shown Thomas’s state of mind at the time manifested plain indifference to employee safety. She comes closer to showing Thomas knowingly disregarded the requirements of the Act. The court finds, however, TIC regarded the requirements of the Act to the extent he met with the various business owners to discuss rescue services and listed the telephone numbers for supervisors. The violation is not willful.

            The violation is classified as serious. A violation is serious under § 17(k) of the Act if the Secretary shows there is a substantial probability of death or serious physical harm that could result from the cited condition. There is evidence Belfield may have survived the fall. Had a skiff been immediately available, it is possible TIC could have reached him in time to save him from drowning.

Penalty Determination

            The Commission is the final arbiter of penalties in all contested cases. In determining an appropriate penalty, the Commission is required to consider the size of the employer’s business, history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity is the principal factor to be considered.

            At the time of the inspection, TIC employed approximately 100 workers. The Secretary has previously cited TIC for violations of the Act. Lack of good faith was not adduced.

            The gravity of the violation of § 1926.501(d)(10)(i) is high. By tying off to the same vertical line, Pulido and Pasillas greatly complicated the rescue. Had the line failed due to being overburdened by an extra person, both employees could have fallen into the river. A penalty of $4,200.00 is appropriate.

            The gravity of the violation of § 1926.106(d) is extremely high. The failure to have a skiff immediately available may have contributed to Belfield’s death. At the very least, having a skiff available in compliance with the standard would have increased the likelihood of recovering Belfield’s body quickly, sparing his family and friends nine weeks of uncertainty. A penalty of $7,000.00 is appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

            The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

            Based upon the foregoing decision, it is ORDERED that:

            1.         Item 1 of citation No. 1, alleging a serious violation of § 1926.451(g)(1)(i), is vacated and no penalty is assessed;

            2.         Item 2 of citation No. 1, alleging a serious violation of § 1926.502(d)(10)(i), is affirmed and a penalty of $4,200.00 is assessed; and

            3.         Item 1 of citation No. 2, alleging a willful violation of § 1926.106(d), is affirmed as serious, and a penalty of $7,000.00 is assessed.

                                                                                    /s/                                                        

KEN S. WELSCH

Judge

Date:   August 18, 2009

            Atlanta, Georgia