WATER TUNNEL CONTRACTORS
OSHRC Docket No. 3064
Occupational Safety and Health Review Commission
July 3, 1975
[*1]
Before MORAN, Chairman; and CLEARY, Commissioner
OPINION:
BY THE COMMISSION: A decision of Review Commission Judge Joseph Chodes, dated February 4, 1974, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than 15 months. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the case at this time.
The members of the Commission are equally divided on the Judge's disposition of the citation in this case. Commissioner Cleary agrees with the findings and reasoning of the Judge. Chairman Moran would reverse the Judge because the evidence does not establish that the respondent failed to comply with 29 C.F.R. § 1926.911(c). The standard provides that explosives shall be removed from a misfired hole by refiring unless "refiring of the misfired hole presents a hazard," in which event "the explosives may be removed by washing out with water." Since the respondent used the alternative procedure of washing out the explosives and there was no evidence that refiring was not hazardous, Chairman Moran finds the evidence insufficient to establish the [*2] alleged violation.
Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).
[The Judge's decision referred to herein follows]
CHODES, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), in which the Respondent is contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act. The Citation states that as a result of an inspection of a workplace under the ownership, operation or control of the Respondent, located at Van Cortlandt Park Site, South Heading Shaft, 2B7, an underground water tunnel, the Respondent is alleged to have violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Citation, which was issued on March 9, 1973, alleges that the violation resulted from a failure to comply with a standard promulgated by the Secretary by publication [*3] in the Federal Register and codified in 29 CFR Part 1926. The standards prescribed by Part 1926 were adopted as standards under the Occupational Safety and Health Act of 29 CFR 1910.12.
Specifically, the Respondent was charged with serious violation of the standard set forth at 29 CFR 1926.911(c) which provides under the heading of "Blasting and the Use of Explosives" as follows:
(c) No attempt shall be made to extract explosives from any charged or misfired hole; a new primer shall be put in and the hole reblasted. If refiring of the misfired hole presents a hazard, the explosives may be removed by washing out with water or, where the misfire is under water, blown out with air.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 9, 1973, from Nicholas DeArchangel, Area Director of the New York, New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty for the alleged serious violation in the amount of $800.
After Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at New [*4] York, New York on August 21, 1973.
STIPULATIONS
1. The Respondent, Water Tunnel Contractors, is a joint venture formed by Walsh Construction Company, a division of Guy F. Atkins and Company, Dravoe Corporation, S.J. Groves and Sons, Company, The Arundel Corporation, L.E. Dixon Company, and Ostrander Construction Company, and its principal office is at 401 West 205th Street, New York, New York 10034.
2. The Respondent was engaged in a business affecting commerce at the time of the alleged violation.
3. The Respondent was formed solely for the purpose of constructing approximately 14.7 miles of tunnel and appurtenances thereto for the Board of Water Supply of the City of New York, pursuant to three contracts referred to by that Agency as Contract 520, 521 and 522.
4. The net worth of the Respondent at the end of the fiscal year immediately preceding the year in which the alleged violation occurred was $5,810,000.
5. All the equipment and machinery utilized in the performance of the work from which the alleged violation arose was either owned or controlled by the Respondent.
6. The average daily number of employees of the Respondent at the site where the alleged [*5] violation occurred during the most recent calendar year was 261.
7. The following persons were injured and/or killed in the occurrence giving rise to the charge of the alleged violation: Edward Dorsey, a miner, Social Security Number ###########, hired July 17, 1972; Dennis de Rosa, miner, Social Security Number ###########, hired June 21, 1972; Raymond Viscavich, miner, Social Security Number ###########, hired January 14, 1971; Ernest Walker, Jr., miner, Social Security Number ###########, hired March 13, 1972.
8. The Citation issued to the Respondent was posted in four locations at the site, the top bell shanty of Shaft 2B7, the bottom bell shanty of 2B7, the men's hog house and the time-keeper's office for at least three working days commencing April 4, 1973.
9. The Notice of Contest was posted at the men's hog house, the carpenter's shop, the maintenance shop, the rigger's office, the top bell shanty of Shaft 2B7 and the bottom bell shanty of 2B7 from April 9th to April 19th, 1973.
10. The Citation and the Notification of Proposed Penalty were issued on March 9, 1973 but not received by the Respondent until April 4, 1973; the Notice of Contest was mailed by the Respondent [*6] to the Complainant on April 25, 1973, within fifteen working days from receipt by the Respondent of the Citation and Notification of Proposed Penalty.
11. Notices of the original and adjourned hearing dates were posted by Respondent.
12. There is no history of previous violation by Respondent at the site in question.
SUMMARY OF EVIDENCE
On February 21, 1973, the Respondent was engaged in the dynamite blasting of a tunnel at South heading shaft 2B7 of the Van Cortlandt Park construction site. Holes were drilled into the face, the holes were loaded with dynamite and blasted or "shot." Respondent's employee, Dennis Paul de Rosa, a chuck tender, removed the rock (mucked out the shot) and checked over the face of the rock for misfired holes. He found some misfired holes but does not know how many, but definitely remembers two. Ernest Walker, a driller and a licensed blaster, was in charge of the checking, and he and other drillers and chuck tenders examined the holes.
Mr. Walker, with the assistance of Mr. deRosa, on finding a hole that had misfired, got a hose with an attached pipe, about ten feet long and a half inch in diameter, and by squirting high pressure water [*7] into the misfired holes, flushed them out. After the holes were washed, Mr. Walker and Mr. deRosa inspected the holes to make sure that they were free of dynamite and other matter. A stick of powder with a cap primer was found in one of the holes and the stick of powder was tossed away and the cap put in Mr. de Rosa's pocket. After that drilling was started again. As a result of this drilling an explosion occurred which resulted in a death and injuries to employees of the Respondent. (Stipulation No. 7, Respondent's Brief, P. 1.). According to Mr. de Rosa, the washing out procedure was usually followed by the Respondent after a hole had misfired although he recalled a couple of times when after washing the holes were refired before beginning the drilling because some of the rock which was blasted did not "come down."
Thomas Corcoran, Compliance Officer, testified that on examination of the face of the tunnel where the accidental explosion occurred found evidence that the holes which were supposed to have been washed out, had not been washed out completely, and cited the presence of cartridge paper remaining in some of the holes. Mr. Corcoran also testified that the [*8] determination by Complainant that there was no additional hazard from reblasting the misfired holes was based on the information obtained from witnesses' statements, background information, and talking to individual miners.
Otto White, also a Compliance Officer, in an after the accident inspection at the face of the tunnel found bits of red paper in several drill holes, which, he concluded, came from sticks of dynamite. On the basis of his inspection and a study of statements concerning the accident he was also of the opinion that the standard in question had been violated.
Edward Kennedy, a technical expert with E.I. Dupont Company and a licensed blaster, testified as an expert on the use of explosives on behalf of the Respondent. In his opinion, the reblasting a misfired hole presented a hazard because (1) it is necessary to rehandle explosives by bringing them from the magazines and taking them down through the tunnel. This creates the hazard of exposure, but it is the usual hazard of transporting explosives. (2) To refire the hole it would be necessary to wash the hole out and thereby expose whatever gun shot explosives were in the hole by repriming the hole with another [*9] stick of dynamite and an electric blasting cap and firing it, there is a great possibility of missiles flying a great distance further than would normally be the case because of the weakened structure of the rock due to its having been detonated. There would therefore be a resultant risk to personnel. (3) In repriming a hole, the cap is placed facing the bulb of the stick of dynamite rather than have the stick out at the end, so there is no assurance that by repriming and refiring that the explosives left in the hole will be fired. If, after refiring, the explosives left in the hole did not shoot, it would be necessary to wash out the holes to make certain that all the explosives were detonated.
With respect to penalty Mr. Corcoran recommended an unadjusted proposed penalty of $1,000 with a reduction of 10 percent for good faith against an allowable (under the guidelines established by the Complainant) 20 percent, based on the Respondent's rather active safety program. n1 A 10 percent allowance as against an allowable 20 percent, was made for history of prior violations as the Respondent had had minor violations. No deduction was allowed for the size of the Respondent's [*10] business as the Respondent had over 100 employees.
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n1 Mr. White testified that one reason only 10% was allowed for good faith was, that, according to witnesses' reports, there seemed to be a breakdown in responsibility with respect to who should inspect the blasting.
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DISCUSSION
The uncontradicted evidence establishes that in the course of blasting operations at the workplace involved in this case, there were at least two misfired holes and that the holes were not reblasted, but were washed out. Redrilling after the washout resulted in an explosion which caused the death of one employee and injury to others. Accordingly, it would appear that the Complainant has established a violation of the standard for which the Respondent was cited unless, in the language of the standard, refiring of the misfired holes presented "a hazard," in which case, the method utilized by the Respondent, that of washing out the holes with water, was in compliance with the standard. The problem presented in the case relates to the burden [*11] of proof, that is, does the burden of proving that there was a hazard in refiring the misfired holes rest on the Complainant or the Respondent.
The general rule with respect to the burden of proof is that the burden rests on the plaintiff, or in the instant case on the Complainant, and this is provided in Rule 73(a) of the Rules of Procedure of the Commission.
The Complainant did not establish that refiring did not present a hazard, since the witnesses produced by the Complainant were not qualified to make such a determination nor did the evidence with respect to the investigation made by the witnesses provide probative evidence which would support such a finding. Consequently, if the burden of establishing that no hazard was presented by refiring the misfired holes rests on the Complainant, then he has not sustained his burden of proof.
In the opinion of the undersigned, the Complainant does not have the burden of proving that refiring was not hazardous. The standard states in positive terms that "No attempt shall be made to remove explosives" from misfired hole. The standard recognizes that there may be circumstances under which refiring may not be the safe method [*12] of confronting the problem of a misfired hole and makes provision for such an eventuality by providing for the removal of the explosives by washing with water. However, to avoid the provision requiring reblasting, the circumstances giving rise to the necessity of utilizing a different method must be established by the person who has not complied with the basic requirement of the standard.
This case is analogous to Brown v. Mars, Inc., 8 Cir., 1943, 135 F. 2d 843, Certiorari denied, 64 S. Ct. 368, wherein the Mars Candy Company was charged by the Price Administrator with violation of a regulation establishing maximum prices for commodities by reducing the size and weight of its candy bars. The maximum prices could not be exceeded unless such decreases in weights were caused by innocent formulae changes or by established manufacturing methods. The issue before the court was which party had the burden of proving the effect on decreases in weights caused by methods of manufacture or formulae changes in making candies. In holding that the burden of proof was on Mars, Inc., the court said:
When the Administrator has introduced proof of a decrease in weights with no corresponding [*13] price reduction, he had made out a prima facie case of violation of the Regulation and the Act. The defendant can meet this prima facie case by evidence excusing the decrease. If he seeks to excuse the decrease, his position is analogous to confession and avoidance and he has the burden of establishing his excuse to the satisfaction of the court.
The standard involves in this case is distinguishable from the standard (29 CFR 1926.105(a)) involved in the case of Secretary of Labor v. The Verne-Woodrow Company, In that case the standard specifically provided that "safety net shall be provided where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are impractical." It was held that the Secretary needed to prove that the use of ladders, etc. was impractical and having failed the Citation was vacated. The differentiating feature is that the standard under consideration in the instant case primarily prohibits the removing of explosives from any charged or misfired hole other than by reblasting whereas 29 CFR 1926.105(a) contemplates the use of scaffolds, etc. See Secretary of Labor v. Pearl [*14] Steel Erection Co., (The case No. 73-1558 was affirmed by the U.S. Court of Appeals 5th Circuit on December 11, 1973.)
Having decided that the Respondent has the burden of proving that refiring presented a hazard, the question for decision is whether the evidence submitted by Respondent did in fact prove that such a hazard existed.
The Respondent produced an expert witness, Edward Kennedy, a licensed blaster, employed by E. I. Dupont who was not at the scene when the alleged violations occurred. He testified that washing out, as routinely done by the Respondent, was to be preferred to blasting because to refire the misfired holes would present a hazard in that explosives would have to be rehandled; refiring creates a possibility of causing missiles to fly about for great distances; and because in refiring there is no assurance that all the explosives in the hole will be fired. For the most part, Mr. Kennedy's testimony could relate to blasting jobs generally where rehandling and refiring present the type of hazards normally found in blasting operations. [*15] The testimony goes to the wisdom of the standard, that is, whether in the normal situation, refiring is to be preferred to washing out. This matter is not for determination in this proceedings. See Secretary of Labor v. Elevating Boats, Inc., Secretary of Labor v. Jas. Bucheit & Sons Company, The remedy in the event that the Respondent does not agree with the requirements of the standard is to apply for variance under Section 6(d) of the Act. Mr. Kennedy's testimony as it related to the particular situation which existed when the misfired holes were washed out is not convincing since he was not present and one can only speculate with regard to the situation as it actually existed. It is significant that the Respondent did not produce the individuals, particularly the licensed blaster, who was responsible for deciding to wash out the misfired holes rather than to reblast, and no explanation for failure to present this testimony was offered.
It is noted that the Citation and Complaint stated that there was no hazard in refiring [*16] the misfired holes. Normally the allegations in the Citation and Complaint should be established by the Complainant. However, in view of the holding that the Complainant does not have the burden of proving the absence of a hazard, and since each of the parties presented evidence on this point, the case should be decided on the merits rather than on the basis of technical rules of pleading.
With respect to the penalty of $800 proposed by the Complainant, Section 17(j) of the Act provides that due consideration shall be given "to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations." The gravity of the violation which resulted in the death of one employee and injuries to others, renders consideration of the other factors involved of secondary importance. The proposed penalty is considered not inappropriate.
FINDINGS OF FACT
On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance [*17] of the evidence supports the following findings of fact:
1. Paragraph 1 through 12 of the Stipulations are incorporated herein as findings of fact.
2. On March 9, 1973, the Complainant issued to the Respondent a Citation for serious violation of the standards set forth at 29 CFR 1926.911(c), for failure to place new primers and reblasting missed holes at the south heading, shaft 2B7 of the Van Cortlandt Park construction site. This constituted a violation of the standard set forth at 29 CFR 1926.911(c).
3. On March 9, 1973, the Respondent was notified by the Complainant of a proposed penalty of $800 for the serious violation referred to in paragraph (2) above.
4. On February 21, 1973, at the site referred to in paragraph (3) above, the Respondent attempted to extract explosives from at least two misfired holes without placing a new primer into the holes and reblasting.
5. Redrilling at the site of the misfired holes referred to in paragraph (4) above resulted in an explosion which killed one of Respondent's employees and injured three other employees.
6. The Respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the [*18] facts recited in paragraphs (4) and (5) above.
7. Giving due consideration to the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the history of previous violations the appropriate penalty for the violation of 29 CFR 1926.911(c) is $800.
CONCLUSIONS OF LAW
1. The Respondent at all times material hereto were engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Respondent at all times material hereto were subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.
3. Respondent violated the Occupational Safety and Health standard set forth at 29 CFR 1926.911(c) and is assessed a penalty of $800.
ORDER
Under the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is
ORDERED that the Citation issued on March 9, 1973, for serious violation of 29 CFR 1926.911(c) and the proposed penalty of $800 be, and the same are, hereby affirmed.