SECRETARY OF LABOR, Complainant, V.
PRESSURE CONCRETE CONSTRUCTION CO., Respondent.
OSHRC Docket No. 90- 2668

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners
BY THE COMMISSION:

Pressure Concrete Construction Co. ("Pressure Concrete" or "the company") was hired by the city of Montgomery, Alabama to repair portions of Montgomery's storm sewer system which had begun to collapse. Following a heavy rainstorm, during which a Pressure Concrete employee was trapped in the storm sewer and drowned, the Occupational Safety and Health Administration of the U. S. Department of Labor ("OSHA") conducted an investigation of the fatal incident. As a result of that investigation, the Secretary of Labor ("the Secretary") issued a citation alleging that Pressure Concrete had violated the Occupational Safety and Health Act of 1970, 29 U. S. C. 651-678 ("the Act"), by failing to comply with various OSHA standards. Pressure Concrete contested that citation and a hearing was held before an administrative law judge of this Commission. After the judge issued his decision, Pressure Concrete petitioned the Commission to review that decision. Review was directed pursuant to section 12(j) of the Act, 29 U. S. C. 661(j).

The direction for review specified that the Commission would review Item 1 of the citation in which the Secretary alleged that Pressure Concrete had committed a serious violation of the standard at 29 C.F.R. 1926.21(b)(2)[[1]] by failing to instruct its employees how to recognize and avoid unsafe conditions that might be encountered during the performance of their work. The judge found that Pressure Concrete had violated the standard. The question before the Commission is whether a preponderance of the evidence supports the judge's decision.

I.BACKGROUND
A.THE WORKSITE

The storm sewer system was made of brick. It was built between 80 and 150 years ago, and age had caused it to deteriorate badly. After a major flood, part of the system collapsed, and other parts of it had begun to show signs that they were near collapse. Pressure Concrete was hired to repair those portions of the system. The company used a process called "guniting," or "shooting gunite," which involves spraying concrete through a nozzle onto a form, in this case the brick walls of the storm sewer. In the guniting process, cement is first mixed with sand and water in a cement mixer. It is then poured into a gun, a device attached to a compressor, which forces it down a hose 1 1/2 inches in diameter and out the nozzle.

The storm sewer in question collects water from the downtown Montgomery area. It has a main channel into which a number of laterals empty. Each of these laterals, in turn, has a number of secondary laterals feeding into it, and those have individual lines from
drains feeding into them.[[2]] Pressure Concrete's employees were working in a trunk line, the main feeder tunnel of the storm sewer. That tunnel started at a creek, where there was an opening approximately 7 feet by 8 feet, and emptied into the Alabama River approximately half a mile away. The tunnel was about 7 feet wide and was from 8 to 12 feet high. At the point where the employees were working, the tunnel was a brick arch approximately 11 feet, 8 inches high.

The work area began approximately 212 feet from the creek entrance and extended approximately 88 feet downstream, so that the work area ended approximately 300 feet from the mouth of the tunnel. The Lawrence Street lateral emptied into the side of the main tunnel approximately 139 feet inside the tunnel, approximately 73 feet upstream from the start of the area being repaired.

Approximately 37 feet downstream from the work area was the Railroad Street manhole, which was near the intersection of Perry Street and Railroad Street. That man hole descended approximately 30 feet from the surface and was entered through a hole in the side of the main tunnel which was approximately 2 feet above the floor of the tunnel. Approximately 11 feet from the bottom of the manhole, three or four laterals ranging in size from 8 inches to 15 inches in diameter, emptied into the manhole. There were U-shaped metal bars built into the wall of the manhole, which served as steps for employees to climb from the street to the tunnel and to climb out of the tunnel. This Railroad Street manhole was where the Pressure Concrete employees who were working aboveground were mixing the concrete. This was where the employees most frequently entered and left the tunnel on their way to and from the work area. Pressure Concrete had a generator at the site to run the compressor and to provide electricity for the lights used in the tunnel. The hose and the wires for the lights went into the Railroad Street manhole and then to the work area.

There was another manhole, approximately 20 feet closer to the work area, which opened on Perry Street, but it entered the tunnel at its crown, almost 12 feet above the floor of the tunnel. The employees could not climb in or out of that manhole without a long ladder, so they used the Railroad Street manhole for access to the tunnel, and their equipment was set up outside the Railroad Street manhole.

Before Pressure Concrete and the city of Montgomery entered into a contract for the repair of the storm sewer system, representatives of the city and the company together inspected the storm sewers to determine the nature and extent of the work to be done. After the company had been hired, representatives of the city again toured the storm sewer with Pressure Concrete's job superintendent and other company officials. Before work began, no one from the city described to Pressure Concrete how long the laterals were, how many secondary laterals drained into them, how large an area they drained, or what volume of water they might potentially carry. More importantly, the company's representatives did not ask for that information. Although the company was given maps and diagrams by the city which showed where the primary lateral fines emptied into the main trunk lines, these documents did not show the secondary laterals that fed the primary laterals and did not indicate the total length of the primary laterals.

B.THE ACCIDENT

On the day of the accident, Pressure Concrete had a 6-man crew assigned to this job. In the morning, all six were at the site, but after lunch the job superintendent went back to the motel where the crew was staying to order supplies and do some paperwork, leaving five employees at the site when it started to rain. The employee who drowned was the one who was left in charge by the superintendent. The afternoon the drowning occurred, two employees were working below, in the tunnel, and three were working "topside," aboveground outside the Railroad Street manhole. In the tunnel were the employee who had been left in charge and a new employee, who had worked for the company only a few months. The more experienced employee was acting as "nozzleman," holding the hose and spraying the concrete onto the walls from the nozzle, and the new employee was acting as his helper.

The three employees topside were mixing the cement and feeding it into the gun when it began to "sprinkle," or rain very lightly. The employees topside then called the helper in the tunnel an a field telephone to tell him that it had begun to rain and they
should shut down and get out of the tunnel. One of the employees topside, Garza, told the, other two employees that he was going below to help the employees in the tunnel shut down, and he got into the company's pickup truck and drove to the creek entrance of the tunnel. By the time he got to the entrance, it had begun to rain harder. He left the truck at the mouth of the tunnel and walked to the work area.

Because the tunnel originated at a creek, there was always some water in the bottom of the tunnel. When Garza entered the tunnel, he observed that the level of the water was about normal. When he reached the work area, the helper was gathering the tools and materials, getting ready to leave, while the nozzleman continued spraying in an attempt to use up the already- mixed-concrete so that it would not harden in the machinery. As Garza climbed onto the scaffold to help the nozzleman, the field telephone rang, and the helper answered it. He told his companions that the employees topside said that it had started to rain very hard and that they should all get out immediately. He then left the work area and headed toward the creek entrance. Garza and the nozzleman started to follow, but a large amount of water was already coming down the tunnel, so they started to go in the other direction, downstream toward the Railroad Street manhole. However, because it was dark in that direction, Garza decided to head for the creek bed entrance at the mouth of the tunnel where he had left the truck.

Garza estimated that by this time the water was approaching waist height. Although they had difficulty getting past the torrent of water entering the side of the tunnel from the Lawrence Street lateral, Garza and the new employee escaped from the tunnel and went to the Railroad Street manhole to join the two employees who had remained topside to see if the remaining employee had escaped. They found that he was still in the tunnel, at the bottom of the manhole, unable to climb through the water cascading down on him from the laterals that emptied into that manhole.

The employees topside and the employee below could communicate by shouting back and forth. They threw him a rope and tried to pull him out, but the rope kept slipping out of his hands. Finally, they told him to tie the rope around himself. Because of the pressure of the water and the angle caused by the hole in the wall where the manhole connected to the tunnel, they still could not pull him out. Only after the rain stopped were they able to pull his body out

C. PRESSURE CONCRETE'S INSTRUCTIONS TO ITS EMPLOYEES

The company introduced into evidence documents used in its safety program: a safety manual issued to every employee; a safety manual issued to supervisory employees; and minutes of weekly safety meetings held by the crew involved in this incident. Although the record shows that repairing sewer systems is a major portion of Pressure Concrete's work, the company stipulated that nothing in those documents specifically addressed the dangerous working conditions that might be encountered on this job, such as flooding or the accumulation of dangerous gases or liquids[[3]] underground.

The company's field superintendent was in charge of the entire project, including safety and hazard instruction. He testified that, although he had worked for Pressure Concrete for sixteen years and had been a superintendent for ten years, he had not received any training from the company in recognizing hazards. The only safety materials he had received from the company were the ones introduced into evidence. He admitted during the hearing that he did not point out the potential hazards on this worksite to the employees before they began working in the tunnel and that he did not give them any instructions in emergency procedure. He also admitted that there was no evacuation plan for this worksite. His instructions to the employees were to "get out" in case of an emergency.

Although the company's policy was not to work in either a storm sewer or a sanitary sewer when it was raining, the project superintendent gave the employees no specific instructions in this regard. Nor did he tell them not to enter the tunnel if there was rain. At the hearing, the project superintendent claimed that he had instructed the employees that, when it started to rain, they were to stop work and leave the tunnel immediately, to "just drop everything" and head for the nearest exit without worrying about the tools and equipment.

Pressure Concrete's project superintendent, its general manager, and an employee all testified that there is usually plenty of time to pick up things and get out of an underground worksite when it begins to rain. Some of the employees testified that, while they knew that they were supposed to stop work when it began to rain, they had never been told not to use up the concrete in the hopper. One employee of the company testified that he thought they were supposed to "get everything cleaned up" before they got out.

D. THE JUDGE'S DECISION

The judge found that Pressure Concrete had violated 29 C.F.R.1926.21(b). The judge found that a large portion of Pressure Concrete's business required its employees to work in storm sewers and that the company was aware of the danger of working in a storm sewer during rain. He held that reasonable instructions appropriate to the cited working conditions would have included a specific evacuation plan designating an emergency exit and explicit instructions to stop work immediately and go to that exit when it began to rain. The judge also found that the violation was serious and assessed a penalty of $1000.
Having carefully considered the transcript of the hearing, the exhibits, and the briefs filed by the parties, we find that the administrative law judge did not err.

II. ARGUMENTS

Pressure Concrete argues that there was no violation because the instructions it gave its employees were adequate to meet the requirements of the standard, pointing to its safety manuals, the minutes of its weekly safety meeting, and to its company policy to evacuate underground worksites when it begins to rain. It also asserts that its instructions were not deficient because the dangers were so obvious that any reasonable employee would recognize and avoid them; that the events leading up to the citation were unforeseeable; and that the city of Montgomery failed to give the company sufficient information for it to be able to foresee these events.

III. ANALYSIS

In order to prove that an employer violated an OSHA standard, the Secretary must prove that (1) the standard applies to the cited working conditions, (2) the terms of the standard were not complied with, (3) employees had access to the violative conditions, and (4) the employer knew of the violative conditions or could have known with the exercise of reasonable diligence. Kulka Constr. Management Corp., 15 BNA OSHC 1870, 1992 CCH OSHD 29,829 (No. 88-1167,1992); Astra Pharmaceutical Prods., Inc., 9 BNA OSHC 2126, 1981 CCH OSHD 25,578 (No. 78-6247,1981), aff'd, 681 F.2d 69 (1st Cir. 1982). Because section 1926.21 (b) (2) does not specify exactly what instruction the employees must be given, the Commission and the courts have held that an employer must instruct its employees in the recognition and avoidance of those hazards of which a reasonably prudent employer would have been aware. E.g., R & R Builders, Inc., 15 BNA OSHC 1383,1991 CCH OSHD   29,531 (No. 88-282, 1991); A. P. O'Horo Co., 14 BNA OSHC 2004, 1991 CCH OSHD 29,223 (No. 85-369, 1991); see also National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978). We must therefore examine the evidence to determine whether Pressure Concrete gave its employees instructions about recognizing and avoiding unsafe conditions that a reasonably prudent employer would have given in the same circumstances.

Having reviewed the entire record, including the exhibits and the testimony of the two Pressure Concrete management officials who testified, we find a serious violation of 29 C. F. R. 1926.21 (b).

We find that the cited standard applies to the working conditions.[[4]] Furthermore, we find that the requirements of the standard were not met, that Pressure Concrete's employees were exposed to the violative conditions, that the company had knowledge that the violative conditions existed.

A. FAILURE TO COMPLY


Pressure Concrete argues that its instructions were adequate. We disagree. The standard requires that employees be instructed how to recognize and avoid dangerous conditions that they may reasonably be expected to encounter in their workplace. Pressure Concrete failed to meet this requirement.

Specifically, the person who was responsible for supervising this crew admitted that he had not received any training in the recognition of hazards from Pressure Concrete in the sixteen years he had worked for the company. He testified that the employees could see for themselves where the laterals were and that it was common sense not to go into the tunnel after it had started raining. Based on this testimony, the company argues that the dangerous conditions pointed out by the Secretary were obvious and that a reasonable employee would be aware of the dangers and act accordingly. However, that contention erroneously places the burden on employees to be more aware and alert than their employer, and an employer cannot assume that its employees will all observe certain dangers and understand the significance of what they see, such as the fact that the laterals emptying into the manhole might make it impossible to climb out through the incoming water. What is obvious to an experienced supervisor may not be obvious to an inexperienced employee.[[5]] Although the record indicates that a substantial portion of Pressure Concrete's work is performed in underground locations such as this one, the company had never given the superintendent any training that would enable him to comply with the standard. Because Pressure Concrete failed to instruct the superintendent in the subject matter on which he was required to instruct the employees, it could not reasonably expect him to adequately train the employees.

Furthermore, in order to know what hazards it must train its employees to recognize and avoid, an employer must inspect the worksite to determine any dangerous conditions to which the employees may be exposed and then give them appropriate instructions. It is
clear that Pressure Concrete did not fulfill this requirement. Though Pressure Concrete attempts to shift the blame to the city for not telling the company how quickly the tunnel could flood, it is clear that no one from the company ever inquired about this subject to the city nor did the superintendent ever examine the tunnel with an eye toward what hazards might be encountered. [[6]] We conclude that a reasonably prudent employer concerned about the safety of its employees would have investigated to detect potential dangers more aggressively than Pressure Concrete appears to have done. Under these circumstances, it was highly unlikely that the superintendent could adequately instruct the employees.

Nevertheless, Pressure Concrete claims that its employees were adequately instructed. In support of this assertion, the company points to its two safety manuals and the minutes of its weekly safety meetings, which addressed topics specified by company headquarters, not potential hazards specific to this worksite. While the company's safety program may have been adequate as far as it went, it did not address matters specific to this worksite about which a reasonably prudent employer would have instructed its employees. For example, although the record is clear that Pressure Concrete's employees all knew that they were to stop work and evacuate the tunnel when it began to rain, the record is equally clear that there was no evacuation plan and that the employees were not given instructions that were adequate to imbue them with a sense of urgency. In fact, when it began to rain, the employees' first reaction was to use up all the mixed concrete, which would have taken at least ten minutes. Although they changed this plan when it began to rain harder, they acted on the revised plan too late to get out safely.

Pressure Concrete asserts that its company policy was to drop everything and exit immediately. However, the testimony of the employees at the worksite and their conduct during the incident in question contradict the assertion by the project superintendent that he had, in fact, instructed the employees to "drop everything" and head for the nearest exit when it began to rain. All the employees seemed to agree that it was perfectly acceptable to use up all the concrete that had been mixed, to "run out the hopper," and the employee who had been left in charge continued to operate the nozzle until the topside employees turned off the gun.

The company further asserts that it did have an evacuation plan, pointing to testimony by the superintendent that the plan was to get out immediately by the nearest exit. That same witness, however, also testified that there was no specific evacuation plan. In addition, the company points to a statement by one of the employees that the employees had been instructed to get out of the tunnel if it began to rain, but the impact of that statement is severely undercut by the fact that the testimony came from the employee who entered the tunnel to help finish up and secure the equipment when it began to rain. In this case, his actions speak louder than his words, and we find that, if such instructions were given, they were not communicated in such a way as to make them meaningful to the employees whose conduct they were supposed to control. The record is therefore clear that, if there was a specific evacuation plan, the employees were unaware of it.

The company also argues that the accident was unforeseeable, but the circumstances of the accident are irrelevant to the question before us: whether the employees were given instructions that were adequate.[[7]] The precise circumstances of this incident may not have been foreseen by the company, but the potential dangers caused by flooding in storm sewers generally were certainly known to Pressure Concrete, and the employees should have been instructed more specifically than they were. The water did not rise "in a flash," as Pressure Concrete asserts. The employees worked for several minutes after they had been informed that it had begun to rain. It appears from the record that, had the employees ceased work immediately when the rain began, they would have been out of the storm sewer before the inflow of water became dangerous, and the "unforeseeable" rise in the water level would not
have mattered. Pressure Concrete's failure to give its employees instructions that were adequate to enable them to recognize and avoid the conditions that occurred renders meaningless any argument that the conditions were not foreseeable.

Finally, Pressure Concrete asserts that it is not required under the standard to administer a test to determine whether its employees understood the instructions they were given. That may be a correct analysis of the standard's requirements, but we conclude that an employer cannot wash its hands of all responsibility to assure that the instructions given are understood. A reasonably prudent employer would attempt to give instructions that can be understood and remembered by its employees, and would make at least some effort to assure that the employees did, in fact, understand the instructions.

We are aware that, at the hearing, the OSHA compliance officer ("CO") who conducted the investigation was not able to state specifically what instructions should have been given, replying that what instructions would be appropriate would depend on a number of different factors. That inability does not excuse Pressure Concrete from its legal obligation to give proper instructions, however. The fact that the requisite instructions would have to be detailed enough to take into account various contingencies does not negate the requirement for the instructions. We do note that the CO testified that he had never been trained in underground construction safety and that, because he never saw the inside of the tunnel, he did not know the exact conditions that the employees might encounter. However, the record does demonstrate that the CO did learn when he questioned the workmen and Pressure Concrete's management personnel that the employees had not been given instructions sufficient to inform them about the conditions they foreseeably encountered on the day of the fatal accident.

Like the CO, the Commission has not seen the inside of the tunnel and cannot specify here exactly what instructions should have been given. However, we do find, based on the record as a whole, that Pressure Concrete's employees had not been instructed in the kinds of conditions that were found in the storm sewer, such as the inflow of water into the manhole that they used to enter and exit the tunnel. Pressure Concrete's failure to comply with the requirements of the standard has therefore been established.

B. KNOWLEDGE

The fact that Pressure Concrete had failed to train the project superintendent in the recognition and avoidance of dangerous conditions establishes that it had at least constructive knowledge of the inadequacy of its training program. That being the case, the superintendent could not reasonably be expected to instruct the employees he supervised on matters or hazards about which he himself had not been taught. In addition, the superintendent's knowledge of his own actions or inactions may be imputed to his employer. Pride Oil Well Serv., 15 BNA OSHC 1809,1814,1992 CCH OSHD 29,807, P.40,584 (No. 87-692, 1992). From the record, it is clear that Pressure Concrete had, at a minimum, constructive knowledge of the violation, and such knowledge is sufficient for the Secretary to meet her burden of proof as to knowledge. Id.

C. CHARACTERIZATION OF THE VIOLATION


Under section 17(k) of the Act, 29 U.S.C. 666(k), a violation is serious if there is a substantial probability that death or serious physical harm could result. This statement does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result should an accident occur. Super Excavators, Inc., 15 BNA OSHC 1313, 1315, 1991 CCH OSHD 29,498, p. 39,804 (No. 89-2253, 1991);.Natkin & Co., 1 BNA OSHC 1204, 1205, 1971-73 CCH OSHD 15,679, pp. 20,967-68 (No. 401, 1973). Here, it is abundantly clear that the consequences of Pressure Concrete's failure to instruct its employees could result in serious harm. We therefore find that the violation was serious.

IV. PENALTY


Section 17(j) of the Act provides that the Commission shall assess an appropriate penalty for each violation, giving due consideration to the size of the employer, the gravity of the violation, the good faith of the employer, and the employer's history of previous violations. 29 U.S.C. 666(j). The Secretary proposed a penalty of $1000 for this item. At the hearing, Pressure Concrete stipulated that such a penalty was appropriate, and the judge
assessed a penalty of $1000. Under these circumstances, we see no reason to reexamine the judge's determination.

V. CONCLUSION


Accordingly, we find that the administrative law judge did not err in finding that Pressure Concrete had committed a serious violation of 29 C.F.R. 1926.21(b)(2) or in assessing a penalty of $1000 for the violation. We therefore affirm his decision on that item.

Edwin G. Foulke, Jr.                                                                                                                                                                                                                     Chairman

Donald G.Wiseman                                                                                                                                                                                                      Commissioner

Velma Montoya                                                                                                                                                                                                                  Commissioner

Dated: December 7, 1992



SECRETARY OF LABOR,                                                                                                                                                                                          Complainant, V.
PRESSURE CONCRETE CONSTRUCTION COMPANY,                                                                                                                                          Respondent.
OSHRC Docket No. 90-2668

APPEARANCES:

Kathleen Henderson, Esquire, Office of the Solicitor, U. S. Department of Labor, Birmingham, Alabama, on behalf of complainant
John C. Wright, Jr., Esquire, Philadelphia, Pennsylvania, on behalf of respondent

DECISION AND ORDER

SALYERS, Judge: Pressure Concrete Construction Company is engaged in the reconstruction and repair of sewer systems (Tr. 307-308) and was under contract with the City of Montgomery, Alabama, to repair parts of the city's storm sewer system in the spring and summer of 1990 (Tr. 46). The storm sewer system in the downtown area was built of brick 80 to 150 years ago (Tr. 22) and, at the time in question, parts of the sewer system had begun to collapse (Tr. 46).

On July 11, 1990, one of Pressure's employees drowned while working in the storm sewer (Tr. 244-245). OSHA conducted an investigation of the fatality and subsequently issued to Pressure a citation alleging serious violations of three safety standards. Item 1 of the citation alleged a serious violation of 29 C.F.R. 1926.21(b)(2) for failure to instruct employees in the recognition and avoidance of unsafe conditions.[[1]] Item 2 of the citation alleged a serious violation of 29 C.F.R. 1926.59(h) for failing to provide information and training on hazardous chemicals used at the workplace. Item 3 of the citation alleges a serious violation of 29 C.F.R. 1926.405(a)(2)(ii)(G) for using electrical lighting operating at greater than 120 volts without the protection of a ground fault circuit interrupter ("GFCI").

The city's storm sewer system is designed to concentrate rain water from the downtown area into an underground system leading into the Alabama River (Tr. 25). Rain water from the developed areas is collected in lateral lines connected to a central sewer tunnel. The sewer tunnel is about one-half mile long. Creek water from a wooded area flows into the sewer tunnel at one end. At the other end the water from the creek and from the lateral lines flows into the Alabama River (Tr. 27-28, 53-54).

The Perry Street and Lawrence Street lateral lines are two main laterals which collect rain water from the downtown area and dump it into the sewer tunnel (Exs. C-1, C-2; Tr. 28). The Perry Street lateral line deposits rain water from a height of about 11 feet into the bottom of the Railroad Street manhole where it is then washed into the sewer tunnel. The Lawrence Street lateral line deposits rain water directly into the sewer tunnel (Exs. C-1, C-2).

On July 11, 1990, Pressure's crew was repairing an 88-foot section between the Railroad Street manhole and the Lawrence Street lateral line. Pressure's work crew consisted of Robert Dean, its field superintendent, and five other men: James Montgomery, Keith Dean, Jimmy Garza, Wayne Patterson, and Ed Williams. Montgomery, Garza, and Keith Dean worked topside while Patterson and Williams worked inside the sewer tunnel (Tr. 197, 226, 229, 235).

In the afternoon of July 11, it began to rain (Tr. 201). The men who were working topside called below and told the men who were working inside the sewer that it had started to rain (Tr. 227). Garza quit mixing concrete, got in his truck, and drove to the creek box entrance. Garza entered the creek box entrance because he stated, "Whenever we always quit shooting, I always went down and helped them secure up down at the
bottom" (Tr. 203). At the time Garza entered the sewer tunnel, the water in the tunnel was six inches to a foot deep (Tr. 205). The men in the sewer tunnel, including Garza, continued working. They did not start to leave until after they were called a second time by the men working topside and told that water was coming into the area (Tr. 227). The water was waist high when they started to leave the tunnel (Tr. 212).

Garza and Williams initially headed for the creek box exit (Tr. 211). They encountered a surge of water from the Lawrence Street lateral, so they turned around and went downstream in the direction of the Railroad Street manhole. Garza saw that "it was total darkness" in that direction and turned around to head back towards the creek box exit where he was able to get out. Patterson had already left the sewer tunnel by that exit (Tr. 215-216). Williams made it to the Railroad Street manhole but was unable to get out. Pressure's crew and other people attempted to rescue Williams by pulling him with a rope up through the manhole. They were unable to do so before Williams drowned (Tr. 214- 219).

Item 1: 29 C.F.R. 1926.21(b)(2)

Section 1926.21(b)(2) provides:

(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

The Secretary argues that Pressure failed to instruct its employees in the recognition and avoidance of unsafe conditions associated with working in storm sewers. The Secretary asserts that these unsafe conditions include "the potentially fatal force of the water rushing through the storm sewer, the hazard of the lateral lines, the hazard of rapid accumulation rate of water in the storm sewer during periods of rainfall, the hazard of electrocution, and the hazard of not immediately leaving the storm sewer after it rains" (Secretary's Brief, pg. 18).

All employees hired by Pressure are given a company safety manual when they begin work (Ex. R-1; Tr. 179). Pressure's employees are required to attend weekly safety meetings (Ex. R-4; Tr. 181). Pressure stipulation at the hearing that the safety manual does not mention an evacuation plan in case of rising water in a storm sewer (Tr. 321). The safety manual contains general safety information that does not specifically address hazards associated with work in storm sewers.

Garza testified that he was given no specific safety instructions before starting on the Montgomery project (Tr. 198, 204). James Montgomery testified that he was told that if it started raining, the crew was to "[g]et everything cleaned up and get out" (Tr. 236).

Pressure's crew was not apprised of the location of the exits or of the obstacles they might encounter getting out (Tr. 222). The Railroad Street manhole was located approximately 37 feet downstream from the work area (Ex. C-1). The next closest exit beyond it was the creek box exit approximately one-half mile away (Ex. C-1; Tr. 54). To exit from the sewer by means of the Railroad Street manhole, employees first had to step up two and a half feet and go through a hole in the sewer tunnel wall which was only about three and a half feet high (Exs. C-1, C-2). Once inside the manhole it was necessary to climb up over 28 feet in order to exit. During rainstorms, the Perry Street lateral line dumps rain water from a three- by four-foot outlet in the manhole wall from a height of 11 feet. On July 11, when Williams was attempting to exit through the Railroad Street manhole, he was prevented from getting out by the cascade of water from the outlet. Garza was topside of the manhole while Williams was trying to exit. He could hear Williams but could not see him because of the volume of water pouring in (Tr. 214). Garza had not been warned that water pouring in from the Perry Street lateral line could be hazardous to a person attempting to use the Railroad Street exit (Tr. 214-215).

James Wilder is the maintenance director for the City of Montgomery. His duties include the maintenance of the city's storm sewer lines (Tr. 21). Wilder and his employees were required to enter the storm sewer from time to time (Tr. 23). Because of the potential hazards involved, Wilder followed strict safety procedures before allowing his employees to enter the sewer (Tr. 24).

Before any work begins, Wilder or one of his assistants inspects the area of the sewer system where the work is to be performed. Points of ingress and egress are noted, and emergency exits are designated. The area is checked for potential hazards (Tr. 33-34).

Because it is dangerous to have people in a storm sewer when it is raining, Wilder monitors the weather before permitting his employees to enter the system (Tr. 25). He will watch the cable weather channel on television in his office. He will then call the National Weather Service's local office and speak with a weather forecaster (Tr. 24). If there is a 40 percent chance of rain, Wilder said, "I don't even consider" allowing employees in the system (Tr. 25). Wilder explained his procedure for assessing the weather situation for smaller percentage possibilities of rain (Tr. 26):

If it's a very small percentage, for instance, 20 percent or where it says a slight chance of rain, then I discuss this slight chance or this 20 percent chance with a weather forecaster with the National Weather Service, and in most cases elect not to have persons working in the storm sewer lines.

There are some few exceptions to that. If the weather forecaster feels that there is a near certainty that the front for instance, will not move in until nighttime [sic], for instance, then we might possibly work that morning.

Wilder would station an employee topside who would observe the weather conditions. "If there is a threat of rain that comes up, or if it begins raining then, of course, our employees are instructed to leave immediately" (Tr.27?). Rain, as defined by Wilder for this situation, is "one drop" (Tr.

37). Wilder's employees are instructed to put down anything they are holding and to leave immediately. They are not to attempt to finish up their work or to even gather up their tools and materials (Tr. 39). Wilder has verbally reprimanded employees who stopped to gather equipment when it started to rain (Tr. 45).

Robert Dean, Pressure's superintendent, did not instruct his employees in emergency procedures (Tr. 140). Dean's evacuation plan was to use the "closest route" (Tr. 155). The closest route in this case was the Railroad Street manhole where Williams drowned trying to get out. Dean did not warn the employees that the Perry Street lateral line could cause problems by cascading water into the sewer tunnel (Tr. 156). Dean recalled watching the weather forecast at the time of the fatality and hearing that there was a 20 percent chance of showers that day (Tr. 143-144). The Secretary introduced evidence that the weather service had projected a 30 percent chance of rain that day (Exs. C-18, C-19).

John Clayton, Pressure's vice-president and general manager, was asked about precautions his company took against the rapid rise of water in sewer tunnels in case of rain (Tr. 311):

A. Well, our people watch the sky and they watch to see if it's raining or going to start raining. And if it does, then they leave. They get out of the line.

Q. Do you try to assess each worksite with that in mind or not? The potential hazard of a sewer filling up rapidly?

A. I Suppose that -- Each individually?

Q. Yes.

A. I guess in the back of your mind I guess you do. Yes, Sir.

Q. But you don't make a big issue out it?

A. Well, there's no way you can tell, really. You don't know. You just know the size of it and if it starts to fill up, you get out.

Pressure clearly did not take reasonable steps to instruct its employees in the recognition and avoidance of sewer tunnel hazards. Garza was never told that he was not to enter a sewer system if it started to rain. He understood that he and his fellow employees were to finish up what they were doing, secure the equipment, and leave if it started raining. They were not to just drop everything and leave (Tr. 204-205). Garza thought their instructions were "Get everything cleaned up and get out" (Tr. 236).

Pressure's instructions regarding rain situations are in marked contrast to Wilder's, who instructed his employees to drop everything and leave immediately, and who even reprimanded his employees for stopping to gather up equipment. Wilder's reason for this instruction was that, depending on the intensity of the rain, the sewer system could fill up in five minutes or less, and in some cases, almost immediately (Tr. 43).

While Pressure was not required to follow exactly the procedure outlined by Wilder, Wilder's procedure is an example of a reasonable instruction appropriate to the circumstances of the work situation. A large part of Pressure's business requires its employees to work in storm sewers. It is well known in the storm sewer industry that storm sewers are dangerous to work in during rain (Tr. 32). Reasonable instructions to its employees in this case would have, at a minimum, included a specific evacuation plan which included a designated emergency exit and explicit orders to drop everything immediately and go to that exit.

Pressure argues that the circumstances of the accident were "unprecedented and unforeseeable" and that Williams "probably would have died even if [Pressure] employees would have been given more specific instructions regarding leaving the storm sewer" (Pressure's Brief, pg. 11). It must be borne in mind that the function of this proceeding is not to determine whether Pressure's actions contributed to Williams' death. The question at issue is whether Pressure's employees were instructed in the recognition and avoidance of unsafe conditions in their work environment. The record establishes that Pressure's crew did not receive instructions which enabled them to recognize that the lateral lines posed potential hazards in exiting through the manholes, or that sewer systems could fill up with water in a matter of minutes. The crew was not instructed in the avoidance of these hazards by going to
designated emergency exits or by immediately abandoning their work.

The Secretary has established that Pressure was in serious violation of 1926.21(b)(2). Because it is concluded that a violation of this standard existed, it is not necessary to consider whether Pressure was in violation of the standards which the Secretary charged in the alternative, 1926.21(b)(6)(i) and 1926.800(d).

Item 2: 29 C.F.R.1926.59(h)

Section 1926.59(h) provides:

(h) Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area.

When OSHA Safety Compliance officer Donald Nguyen asked superintendent Robert Dean if Pressure had a hazardous communication program, Dean did not know what he was talking about (Tr. 282): "He stated he may have it at the hotel--the motel--and he had no knowledge of it... He said he doesn't know what hazard communication means or what Material Data Safety Sheet means...He doesn't understand what Material Safety Data Sheets are." Nguyen asked the other employees about a hazardous communication program (Tr. 283): "I asked Robert Dean with the crew as a group and they all shook their head."

Pressure contends that its employees were trained regarding the hazards of working with cement, the only hazardous substance with which they were working. The record does not support this contention.

Dean did not consider cement to be a hazardous substance, even though there was a MSDS supplied with it (Tr. 163). He did not review the MSDS to see if any hazards were associated with the cement (Tr. 164). Dean, who supervised the work crew, could not state whether his crew knew what the purpose of the MSDS was (Tr. 165).

When Garza was asked what precautions he used in handling cement, he replied, "common sense" (Tr. 200). He carried eye drops in his pocket in case he got any cement dust in his eyes. When asked how he knew what to do if exposed to cement dust, he replied, "Over the years, I've been told. I'm not told everyday what to do" (Tr. 200). This testimony does not support Pressure's contention that it was in compliance with 1926.59(h), which requires that employees receive training on hazardous chemicals "at the time of their initial assignment."

Pressure used from 80 to 130 bags of cement during one work day. Two employees were used to mix the cement during the day (Tr. 167). Clayton recognized cement dust as a hazardous substance (Tr. 316).

The Secretary has established that Pressure was in violation of 1926.59(h). Pressure was charged with a serious violation of the standard. Section 17(k) of the Occupational Safety and Health Act of 1970 ("Act") provides: "A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result...." It is the Secretary's burden of proof to establish the probability of death or serious physical harm as part of her prima facie case. Crescent Wharf and Warehouse Company, 73 OSAHRC 15/A2, 1 BNA OSHC 1219, 1973 CCH OSHD 15,687 (No. 1, 1973). The Secretary has failed to adduce any evidence on the seriousness of this violation.

It is possible to infer from some standards that a hazard poses a serious risk to employees. Such is not the case here. Although cement is classified as a hazardous substance, the extent of the hazard remained unexplored at the hearing. The only evidence as to the effects of the cement came from Pressure's employees, who characterized the hazard as minor irritation to the eyes. It may well be that cement poses a more serious hazard than that, but the MSDS for cement was not introduced into the record and no one testified to its more serious effects. Based on the record, it does not appear that exposure to cement dust would lead to a substantial probability of serious physical harm. Accordingly, item 2 will be affirmed as nonserious.

Item 3: 29 C.F.R. 1926.405(a)(2)(ii)(G)

Section 1926.405(a)(2)(ii)(G) provides:

(G) Portable electric lighting used in wet and/or other conductive locations, as for example, drums, tanks, and vessels, shall be operated at 12 volts or less. However, 120-volt lights may be used if protected by a ground-fault circuit interrupter.

Pressure concedes that it was operating a 120-volt electrical system for lighting in the sewer tunnel and that it was not using a ground fault circuit interrupter (Tr. 17, 289). Dean testified that a GFCI would not work because moisture in the tunnel would cause the portable light to short out (Tr. 169).

Pressure, using an innovative argument, contends that using the GFCI would have presented a greater hazard, i.e., working in the dark. Unfortunately for Pressure, the greater hazard defense is composed of three elements, none of which has been met in the present case.

[T]o prevail on the "greater hazard" defense, an employer must establish the three substantive elements of the defense: "(I) the hazards of compliance are greater than the hazards of noncompliance, (2) alternative means of protection are unavailable, and (3) a variance was unavailable or inappropriate.

Secretary of Labor v. Williams Enterprises, 876 F.2d 188 (D.C. Cir. 1989).


Pressure did not attempt to obtain a variance. Pressure did not show that alternative means of protection were unavailable. When asked about the possibility of using flashlights or battery- powered lights, Dean stated simply that he had not tried to use them. Likewise, no evidence was introduced to show why the lighting system could not "be operated at 12 volts or less" as contemplated by the standard. Pressure did not establish that the hazards of complying with the standard were greater than those of noncompliance. On the other hand, it seems obvious that the reason the generator kept shorting out was because the GFCI was performing its function, that is, it was terminating the current when the amount of moisture in the environment made it unsafe to continue.

The Secretary has established that Pressure was in serious violation of 29 C.F.R. 1926.405 (a)(2)(ii)(G).

Penalties


The Commission is the final arbiter of penalties in all contested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1972).

Upon due consideration of the relevant factors, it is determined that the appropriate penalties for the cited items are as follows:

Item 1 $1000.00
Item 2 - 0 -
Item 3 $900.00

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

ORDER

Based upon the foregoing decision, it is hereby ORDERED: (1) That item 1 of the citation is affirmed and a penalty of $1,000.00 is assessed.

(2) That item 2 of the citation is affirmed as nonserious, and no penalty is assessed.

(3) That item 3 of the citation is affirmed, and a penalty of $900.00 is assessed.

EDWIN G. SALYERS                                                                                                                                                                                                                                                          Judge

FOOTNOTES:

[[1]] That standard provides:
1926.21 Safety training and education (b)Employer responsibility.

(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

[[2]] One witnesses described the storm sewer system as being like a tree with a trunk and limbs, with smaller branches growing off the larger limbs. The limbs were analogized to the main lateral lines emptying into the tunnel where the employees were working, with the secondary laterals emptying into the main laterals being like smaller branches growing from the limbs.

[[3]] The record indicates that there is a gasoline storage and distribution facility within a block of where the employees were working, and a leak or spill could allow gasoline to get into the storm sewer.

[[4]] In her complaint, the Secretary amended the citation to allege in the alternative that two additional standards had been violated. The judge found a violation of the cited standard without addressing the applicability of the other two standards alleged in the alternative. While it would have been preferable for the judge to explain why he found the cited standard to apply instead of the others, neither party has sought review of the judge's implicit finding that the cited standard was the most appropriate of the three, and the direction for review did not specify that as an issue to be considered. Because neither party had urged on review that one of the other standards is more specifically applicable, the Commission will not address that question. Our decision in this case therefore constitutes a finding only that section 1926.21 (b) (2) applies to the facts here, not that it is the most appropriate standard.

[[5]] Pressure Concrete cites an unreviewed decision by an administrative law judge as support for the proposition that an employer need not instruct its employees on something that is obvious. As the discussion above indicates, what is obvious to one person may not be obvious to another. Consequently, we do not necessarily agree that the decision cited is apposite. More importantly, because it was unreviewed, that decision does not constitute precedent that is binding on the Commission. Havens Steel Co., 6 BNA OSHC 1740, 1742 n.7, 1978 CCH OSHD   22,875. p. 27,672 n.7 (No. 15538, 1978).

[[6]] The company's general manager testified that, in the back of his mind, he assessed the worksite for the hazard of rapidly rising water, but he apparently did not communicate this assessment to the superintendent or the employees.

[[7]] Furthermore, we find nothing in the record that establishes that the storm in question was extraordinary. For example, the reason it was necessary for the city to hire Pressure Concrete to repair the storm sewer was that there had recently been very heavy rain and flooding, but the record does not suggest that the results of this storm caused extensive flooding. Indeed, the record shows that the storm lasted less than an hour. We also accord little weight to the testimony by witnesses who were not at the worksite that they had never known of an instance in which water rose as quickly as it did in this case, because their knowledge of the amount of time that elapsed is open to question. In addition, some of them stated that they always evacuate as underground worksite immediately at the first word of rain, which means that they could not know how quickly the water rose after they left.

[[1]]
In her complaint, the Secretary amended item 1 to allege in the alternative a serious violation of 29 C.F.R. 1926.21(6)(i) for failure to instruct employees in the hazards of confined spaces, or a serious violation of 29 C.F.R. 1926.800(d) for failure to instruct employees in the recognition and avoidance of hazards associated with underground construction activities.