Secretary of Labor,
Complainant,
v.	OSHRC Docket No. 11-1734
CALPINE CORPORATION, and its successors,
Respondent.

APPEARANCES:                                 

Jessica R. Brown, Esquire, U.S. Department of Labor, Office of the Solicitor, Region III, Philadelphia, Pennsylvania

For the Secretary

 

James G. Seaman, Esquire, Eckert Seaman Cherin & Mellott, LLC, Pittsburg, Pennsylvania

            Frank C. Botta, Esquire, Eckert Seaman Cherin & Mellott, LLC, Pittsburg, Pennsylvania

Jeremy L. Samek, Esquire, Eckert Seaman Cherin & Mellott, LLC, Pittsburg, Pennsylvania

Willis A. Siegfried, Esquire, Eckert Seaman Cherin & Mellott, LLC, Pittsburg, Pennsylvania

            Christopher Jones, Esquire, Calpine Corporation, Houston, Texas

                        For the Respondent

 

BEFORE:       Dennis L. Phillips

                        Administrative Law Judge

DECISION AND ORDER

 

This proceeding is before the Occupational Health and Safety Review Commission (“the Commission” or “OSHRC”) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (“the Act”). On Wednesday, December 22, 2010, upon being notified

of an accident, the Occupational Safety and Health Administration (“OSHA”) initiated an inspection of Calpine Corporation’s (“Respondent” or “Calpine”) Bethlehem Energy Center (“BEC”) facility in Bethlehem, Pennsylvania. (SF-5).

In June 2011, OSHA issued a “serious” citation, alleging a violation of 29 C.F.R. § 1910.23(a)(8), unguarded floor hole, and proposing a penalty of $7,000.00. Calpine filed a timely notice of contest, bringing this matter before the Commission. In her complaint, the Secretary of Labor amended the citation to allege a violation of 29 C.F.R. § 1910.23(a)(7), unguarded temporary floor opening. In its answer, Calpine set out 19 affirmative defenses. An eight-day hearing was held in Philadelphia, Pennsylvania in May and June, 2012. The parties submitted a joint pre-hearing statement, post-hearing briefs, and reply briefs. (SF-2 through 4, 15).

Jurisdiction

Based upon the record, the Court finds that Calpine, at all relevant times, was engaged in a business affecting commerce and was an employer within the meaning of §§ 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and (5). See pleadings. The Court concludes that the Commission has jurisdiction over the parties and subject matter in this case. (SF-1).

Stipulated Facts

            The parties stipulated the following facts in their joint pre-hearing statement.

1.   Respondent is an employer engaged in a business affecting commerce within the meaning of 29 U.S.C. § 652(5), and Respondent utilizes tools, equipment, machinery, materials, goods and supplies which have originated in whole or in part from locations outside the state of Pennsylvania.         

 

2.   Calpine timely filed a Notice of Contest to the Citation. 

 

3.   On September 16, 2011, the Secretary of Labor (“Secretary” or the “DOL”) filed a Complaint with the Occupational Safety and Health Review Commission (“OSHRC”). In her Complaint, the Secretary amended the Citation to read as follows, replacing the original language. 

 

      Citation 1 Item 1a Type of Violation: Serious

 

      29 CFR [§] 1910.23(a)(7): Temporary floor opening(s) were not guarded by standard railings or constantly attended by someone:

 

      (a) CT6, adjacent to the ladder access way – On or about December 22, 2010, a temporary floor opening in the steel grated platform, which surrounded the turbine chamber was not guarded by standard railings or constantly attended to prevent employees from falling a distance of no less than 16 feet through the unguarded opening.

 

4.   Calpine filed a timely Answer to the DOL Complaint, denying the material allegations thereof and asserting various affirmative defenses.

 

5.   Bethlehem Energy Center is located at 2254 Applebutter Road, Bethlehem, Pennsylvania 18015.

 

6.   Joseph Miller is an employee of Calpine Corporation.

 

7.   Joseph Miller was the Plant Manager of Bethlehem Energy Center at the time of the accident.

 

8.   Thomas Narkin is an employee of Calpine Corporation.

 

9.   Thomas Narkin was the Operations Manager of Bethlehem Energy Center at the time of the accident.

 

10. During the week of December 20, 2010, Siemens Energy (“Siemens”) was in the process of re-assembling the CT-6 turbine. As part of that process, Siemens scheduled its 12/21/10 Day Shift (i.e., 7:00 a.m. to 5:00 p.m.) crew to re-assemble the platforms and catwalks, which surround and connect CT-6 combustor silos BK-1 and BK-2. The Day Shift crew did not complete that task, however.

 

11. Completion of the CT-6 platforms/catwalks configuration, which includes the BK-2 Platform, was left for Siemens’ 12/21/10 Night Shift crew (i.e., 5:00 p.m. to 3:30 a.m.). Siemens’ 12/21/10 Night Shift crew did not complete said platforms/catwalks configuration.

 

12. When Siemens’ 12/21/10 Night Shift crew left the BEC at 3:30 a.m. on December 22, 2010, the BK-2 Platform was not completely re-assembled.

 

13. Using a laser measuring device, the coroner determined the BK-2 platform to be 17’ 1 31/32” above ground level.

 

14. Photographs of the BK-2 Platform, which were taken by both OSHA and the Police, as well as OSHA’s own admission reflect that “the tarps were still on the BEC Unit 6 turbines at the time of the Incident.” (DOL-000632.)

 

15. Respondent has the burden of establishing the affirmative defense of unpreventable employee misconduct on the part of its employee [the decedent].

 

Relevant Testimony

The BEC facility is a power-generating facility spread over 52 acres with two river water cooling towers, two steam turbine buildings, six combustion turbine buildings, two heat recovery steam generator buildings, two gas pressure buildings and a chemical addition building. An administrative office, maintenance shop and main control room are also at the BEC facility. Several combustion turbines are located at six combustion turbine buildings. The accident prompting the inspection took place in the combustion turbine building referred to as CT-6. CT-6’s gas combustion turbine is a Siemens model V84.2. (Tr. 444-45, 505, 948, 1360, 1384, 1422-23, 1439; RX-P, at p. 5, RX-MM-I).

The BEC facility was commissioned in 2002 and transferred to Calpine’s ownership in July 2010. Joseph M. Miller III became the plant manager at the BEC facility at that time. Previously, Mr. Miller was the operations and maintenance manager at a power plant in Wilmington, Delaware for about ten years. (Tr. 1447, 1531-32; SF 6-7, 9).

Thomas Narkin became the Operations Manager at the BEC facility in the spring of 2009. Mr. Narkin is responsible for managing 17 operator maintenance technicians (“OMT”), four of which are lead maintenance operators (“LMO”). He graduated from Widener University and is an electrical engineer. LMOs operate the BEC facility, perform maintenance work, and help coordinate what gets done each day. In December 2010, there were four LMOs – Raymond Lutz, William Varga, Timothy Lewis, and the decedent. (Tr. 439-40, 566-67, 606, 693-95, 988-89, 992, 1435-39, 1440; SF-8 through 9).

Calpine’s operations staff worked in 12-hour shifts starting at 6:00 a.m. and 6:00 p.m. There were four operations staff members per shift – three OMTs and one LMO. Each LMO is responsible for the oversight of three OMTs per shift. An OMT’s routine duties include checking meter readings, plant chemistry, starting and stopping equipment, observing equipment for potential problems, controlling megawatt-levels, maintaining offsite auxiliary equipment, and general light maintenance. Mr. Narkin stated that OMTs are required to inform him of any unusual condition and either stop or not start a job when they discover a safety issue. He testified that an LMO is responsible for his own safety, the safety of his crew, and delegating work tasks. In addition, Mr. Narkin testified that one of the LMO’s duties including attempting to resolve safety issues, and, if unable to do so, to then contacting the on-call supervisor. (Tr. 441-42, 694, 999, 1440-47; RX-X).

The Overhaul Project

In 2010, Calpine hired an outside contractor, Siemens, to perform a maintenance overhaul of several turbines at the BEC facility. The overhaul effort included CT-6’s gas turbine’s disassembly and reassembly. At the time of the accident, Siemens was overhauling the CT-6 turbine and it was in outage mode (not generating energy). Mr. Narkin testified that during the overhaul Siemens directed and controlled the end of CT-6 where the turbine was located. Calpine employees were occasionally borrowed to perform tasks at Siemens’ request. (Tr. 453, 1365, 1384, 1474-80; RX-N, RX-P, at p. 40).

Raymond Rice and Roy Killgore were turbine engineers for Turbine Maintenance Group (“TMG”) and worked at the BEC facility during the overhaul project. TMG, a division of Calpine Operating Services Company, Inc. (“COSCI”), is based in Pasadena, Texas. TMG oversees the Master Agreement between Siemens and Calpine and the Operating Plant Service Agreement (“OPSA”) between COSCI and Siemens and provides technical oversight during overhauls at approximately 97 Calpine-owned facilities in the United States. Mr. Narkin explained that the TMG engineers served as an intermediary between Siemens and BEC’s plant management. Mr. Miller testified that “the TMG group is kind of like an internal subcontractor, ….” He also stated that Mr. Killgore was “kind of the company administrator” for the OPSA between Siemens and Calpine. (Tr. 932-33, 942-45, 1068-70, 1080. 1333-34, 1476, 1569-70; RX-N, RX-P).

Messrs. Killgore and Rice were on site to ensure that Siemens followed the technical specifications for the overhaul project. They worked hours to correspond with the Siemens crews’ shifts. Mr. Rice had oversight for the night shift; Mr. Killgore was on the day shift. Mr. Killgore estimated that during the overhaul he spent 60% to 90% of his time in the area where Siemens was working. (Tr. 937-38, 1375-78, 1385; JX-VII at p. 5).

Mr. Killgore testified that Siemens personnel conducted a daily turnover meeting to “basically recap the day’s work for their night shift people coming in, and the night shift was gathering that information so they could go to work.” Messrs. Killgore and Rice attended the meeting to review the technical issues and determine whether BEC staff would be needed to perform a task. Siemens also prepared a Shift Turnover Report that showed work that had been accomplished and identified work to be scheduled. Mr. Rice testified that a completed copy of the Siemens Shift Turnover Report for the December 21, 2010 dayshift was not sent to Calpine’s Control Room on the evening of December 21, 2010. That report indicated that the platforms and catwalks had been hot bolted by about 5:00 p.m., December 21, 2010, but further work needed to be scheduled to torque the platforms and double nut them as necessary for looseness. The Shift Turnover Report completed for the 5:00 p.m. through 3:30 a.m., December 21-22, 2010 night shift continued to indicate that work needed to be scheduled to finish torqueing the platform sections. (Tr. 366-67, 424-25, 964-77, 981-82, 1288-90, 1376-79; JX-III, at p. 2, JX-VII, at p. 10, JX-XV, GX-7).

Mr. Killgore prepared the “Calpine TMG Daily Shift Turnover Report” each morning, which was then sent to Mr. Rice, Mr. Miller, TMG’s management, and Calpine’s regional vice president, Bill Ferguson. The report was also a summary of what Siemens had accomplished in the prior 24 hours. Mr. Killgore received the information for this report from the Siemens daily turnover meeting he attended and a report that Siemens sent to him between 6:00 a.m. and 8:30 a.m. each morning which listed the work done overnight. Mr. Killgore also testified that one of his duties was to show Siemens’ employees a safety video as part of Calpine’s safety training of Siemens’ personnel working at BEC. (Tr. 1020, 1076-80, 1379-82, 1424-25, 1572; GX-8, GX-9, GX-13).

Siemens controlled the priority of the work tasks related to the overhaul. Mr. Killgore explained that the project’s status could change quickly because Siemens had to deal with various factors, such as the weather, while trying to meet its schedule. For example, Mr. Rice testified that on December 21, there was a blizzard predicted so the early part of that night’s shift was dedicated to getting a roof panel replaced. (Tr. 900-01, 961-62, 965, 1377, 1395, 1538-39; RX-D). Mr. Rice testified that work by a BEC employee in the overhaul work area was limited to those tasks necessary to assist Siemens during the outage. Siemens was not allowed to perform certain tasks at the BEC facility. For example, if Siemens needed a piece of instrumentation moved, it would request a BEC technician to perform the work. (Tr. 1385-86). Messrs. Lewis, Lutz, Miller and Rice confirmed that BEC staff was only in CT-6 during the overhaul to perform certain limited tasks. Mr. Killgore’s duties included coordinating tasks, such as to remove wiring, electrical hookups, or conduct crane operations, that Calpine BEC employees needed to perform in the southern half of CT-6 while Siemens was engaged in its overhaul work in that area. (Tr. 454, 529, 644-45, 959-60, 1018-19, 1385-87).

Mr. Killgore testified that Siemens could begin to reassemble the catwalk platforms after completing the re-installation of the rotor, compressor blade and turbine vane carriers, center and exhaust cases, and blow off line in CT-6’s turbine. (Tr. 1393). Siemens installed the center case during the December 20, 2010 night shift. (GX-6, at p. 2). Siemens hot-bolted the platforms and catwalks around the two combustion chambers during the December 21, 2010 day shift. Siemens’ December 21, 2010 night shift did not perform any work on the upper platforms in CT-6. Siemens’ December 21, 2010 night shift Shift Turnover Report indicated that “Finish torquing platform sections” was scheduled work that needed to be done. (Tr. 1394-96; GX-7).

During the overhaul project, Thomas McClelland performed tasks in CT-6 in December, 2010. Mr. McClelland testified that in order to remove a pipe in CT-6, “I went into the enclosure to assess the job. Looked up to see where I had to work and made sure it was safe or if it wasn't, which at that time it was not. So I went back and got my fall protection, came back, did the job.” He testified that he used fall protection because the catwalk platform was not complete. A few days before the accident, Mr. McClelland went back to replace the same pipe in CT-6. Again, he “walked over to the unit, looked around where I needed to work, made sure it was safe, and if not went back and got my safety equipment and then went and did my job.” He testified that he assessed the situation before he did any work because that was a “personal way I work”, safety training he had, and Calpine’s safety policies. (Tr. 1798-1804).

Mr. Narkin prepared a night order for each upcoming BEC night shift. The night order was a list of tasks to be done, generally listed in the order of priority. Mr. Narkin testified that he did not expect all the listed tasks to be done on a particular night. If a task was critical he would note it as such with a desired completion date. Further, Mr. Narkin testified that he put some tasks on the list in advance of the needed completion date as a way to encourage communication between him and the operations staff about a planned future task. (Tr. 447, 1462-71).

Mr. Lutz described a night order as the way management relayed tasks to the night shift. Night orders were placed on the Control Room’s counter by the operations manager, Mr. Narkin. These tasks were in addition to the routine duties of the operations staff. The night order was primarily for the LMO’s use, but it was available to any employee. Mr. Lutz explained that the expectation was to complete as many tasks as possible from the night order. Mr. Lutz further explained that there was some pressure to get priority tasks that were critical done for the next day’s shift. He also testified that in December 2010 it was common for LMOs to enter into CT-6 to assist Siemens by turning on or off one of Calpine’s pumps, as well as to perform minor “quickie” jobs that did not require much time to complete. One such job included performing plastic sheeting repair work to protect electrical components when the roof was removed. (Tr. 447-51, 455-56, 530-31, 644, 991, 1478; JX-XIII, GX-10).

Mr. Narkin testified that employees have discretion as to which tasks will be done each night and that employees can skip tasks, “which happens a lot.” Mr. Narkin testified that besides being able to skip items on the night orders when there was not time to complete the task by the end of a shift, employees were expected to skip a task when it could not be performed safely. Mr. Lewis confirmed that safety issues, potential hazards, physical capabilities of the person performing the task, weather conditions, and operational conditions were all reasons to skip over a task on a night order. Mr. Varga testified that he did not believe anyone had ever been disciplined for not completing a task on a night order. He also agreed that it was appropriate to assess environmental conditions before performing any task. (Tr. 649-50, 741-42, 1462-64).

Mr. Lutz testified that he told Mr. Narkin that the men were feeling stressed about finishing all the tasks on the list each night. Mr. Narkin then sent out three emails clarifying the priority of tasks on a night order. Mr. Narkin sent these emails on August 20, November 18 and November 24, 2010. The emails were written to remind the employees that the jobs on the night orders were to be completed only if time and conditions allowed, that the listed tasks were secondary to their routine duties and safety training, and that Mr. Narkin did not expect them to complete all the tasks listed during that shift. The decedent was one of the recipients of these emails. (Tr. 539-40, 548-50, 651-52, 1465-71; RX-DD).

On the December 20 night order, Mr. Narkin included an assignment to re-install a spark rod where one had been removed a few days before from CT-6’s east combustion chamber burner by the deceased. Mr. Narkin testified that he knew that installing the spark rod in CT-6 required the use of the upper platform that surrounded the combustion chambers. He also testified that he did not take any steps at that time to determine the condition of CT-6’s catwalk platform. (Tr. 1003-4; GX-5).

Mr. Lewis attempted to complete the spark plug replacement assignment at approximately 4:30 a.m. on December 21. He did not know into which of the two combustion chambers the spark plug was to be installed. (Tr. 460-63, 566, 569-74, 998, 1003-06, 1483-85; GX-5, RX-MM). Mr. Lewis further testified that he entered CT-6’s southern door after exiting the Heat Recovery Steam Generator (“HRSG”) building. The farthest point he reached was directly south of the west combustion chamber. From there, he could see that “[t]he tops of the combustion chambers were covered with tarps over the top of the burners where this spark rod assembly would go . . . . in addition to the tarps covering the combustors there was decking missing from these catwalks.” He also testified that he observed the opening in the platform from floor level and that it was so obvious that it took him only a minute to assess the condition of the platform. Mr. Lewis did not climb up to the 17- foot platform to install the spark rod because he felt the floor opening made it unsafe and Calpine policies forbid working in an area where there was an uncovered opening unless the opening was covered or barricaded. (Tr. 571-73, 578-81, 654, 661-62, 666, 670, 679-80; RX-MM-E).

At the end of his shift on the morning of December 21, Mr. Lewis informed the next shift’s LMO, Mr. Lutz, that the platform surrounding the combustion chambers was unsafe for travel because it had unguarded floor openings. Mr. Lewis did not work on December 22, 2010. Mr. Lewis testified that, “to the best of [his] memory,” Mr. Narkin was present when he told Mr. Lutz about the openings in the platform. (Tr. 533, 581, 587, 671-75). Mr. Lutz confirmed that Mr. Lewis told him about the missing grates in the catwalk platform that morning. Mr. Lutz believed Mr. Narkin was in the room at the time, but he was not “100% sure.” (Tr. 461-63, 541-42, 533-38, 550). However, Mr. Narkin testified he was not advised of the platform’s condition by Messrs. Lewis or Lutz on the morning of December 21. (Tr. 1488-89).

On the December 21 night order, Mr. Narkin again included the task to install a spark rod in CT-6’s east combustion chamber. The December 21 night order carried over this task from the previous night, with the added phrase: “[i]f tarps and Siemens are not in the way.” Mr. Narkin was told to add this phrase, but he could not recall who told him to do so. Mr. Narkin testified he did not question the meaning of the phrase because it seemed very clear. To him it meant that the tarps covering the turbine were off and that Siemens’ “people” and “stuff” were gone. He testified that the “tarps were gigantic. And for them to not be in the way, they would have to be off. They were huge.” (Tr. 166, 1006-08, 1485-88, 1517-18; JX-XIII)).

Mr. Lutz testified that when BEC operations staff changed shifts there was usually a discussion between the shift LMOs to pass along operational and safety information to the next shift. If Mr. Lutz could not attend he would generally have someone fill in for him. Mr. Lutz also testified that for his December 21 day shift, he left a few hours early and was not there to tell the next shift’s LMO about the condition of the platform. The decedent was the LMO for the December 21 night shift. (Tr. 544-47).

Mr. Rice’s last shift at the BEC plant was the night of the accident. He left before the end of the shift, at approximately 2:00 a.m. He left earlier than normal because Siemens had finished the technical aspects of the job and was performing clean-up work for the remainder of the shift, which ended at 3:30 a.m. Only Siemens’ employees were in CT-6 between 2:00 a.m. and 3:30 a.m. on December 22. (Tr. 937, 940, 971, 980-81).

The Accident

Raymond Lutz arrived at the BEC facility at about 5:15 a.m. on Wednesday, December 22. When he arrived, he was told by other Calpine employees that they were looking for the decedent. The decedent’s body was discovered in CT-6 a few minutes later. Mr. Lutz then went to CT-6 and saw the decedent lying on the concrete floor near an access ladder leading up to the northwest part of CT-6’s west combustion chamber. He testified that the area was “kind of shadowy.” Using a flashlight and not wanting to move the deceased, Mr. Lutz concluded that the deceased had perished. (Tr. 483-91, 496; RX-MM).

On December 22, 2010, Mr. Varga reported to work at about 5:30 a.m. and went directly to CT-6 when he learned of the accident and saw the deceased lying on his belly. Mr. Varga testified that it was “rather dark” inside CT-6 and he used a flashlight to see better. He testified that the deceased’s legs were on either side of the access ladder that led to a combustion chamber with his crotch pressing very tightly at an elevated level against the access ladder’s left upright. Mr. Varga agreed that it was “very apparent” that there were holes in the catwalk platform. He further agreed that he would have worn a harness for safety reasons if he were to have ascended to the catwalk platform. He also testified that the deceased’s head was a couple of inches from the right upright of the shorter ladder that led to the IGV platform. Mr. Varga testified that one of the openings in the platform surrounding the combustion chamber was “pretty much right above” where the decedent’s body was discovered. He testified that he did not recall seeing any tarps covering the combustion chambers. He was at the north side of the west combustion chamber for less than five minutes. (Tr. 695-97, 708-09, 725-26, 731-32, 737-38; RX-MM-F).

Coroner Lysek arrived at the BEC facility between 6:00 a.m. and 7:00 a.m. to investigate the reported death of an employee. Upon arrival he was directed to CT-6. Mr. Lysek ascertained that the lighting was the same as it would have been when the decedent entered CT-6 a few hours prior. He testified the lighting in CT-6 was “adequate enough that I could look up and see the grating and make out everything” and that he could clearly see the missing grates which were “leaning against the railing” on the catwalk; he could see this without a flashlight or other type of lighting device. (Tr. 1588-92, 1607, 1651-54, 1718-19).

Coroner Lysek explained that on the day of the accident he observed the body and the area surrounding it. He testified that the decedent’s gloves were not misplaced and were on each hand properly. There were no tears in his jacket and it “appeared perfectly fine.” He further testified that decedent's head was lying face down on the concrete floor positioned about an inch or two from the short access ladder (identified with the letter “D” on RX-MM-I) with seven steps leading to the lower platform (also referred to by Coroner Lysek as a catwalk) to the east (identified with the letter “E” on RX-MM-I). There was a wet area on the concrete floor that extended from the west wall over to the west side of the combustion chamber. Coroner Lysek described the lower platform as a metal grate walkway about three to four feet wide, about seven feet off the ground. Two bars, a lower bar and an upper bar, protected and confined the lower catwalk’s space. There was a gate atop the short access ladder that had to be opened to stand on the catwalk. He testified that the catwalk extended to the combustion chamber’s south side. Immediately north of the short access ladder, he described an area where there were two six-inch I-beams, one north and one south, that extended from left to right from the lower catwalk, and a catwalk to the left and west side. He testified that there was a small section of particle board (also referred to as composite plywood) over the southern I-beam. He testified that there was another steel grated platform area that he identified at “H” on RX-MM-I, to the left of the particle board (looking north), where there was another ladder that extended from the floor where the deceased was found up to a platform that was about the same elevation as the lower catwalk at RX-MM-I at “E”. The distance from the particle board to the lower platform ladder at “D” was very short. (Tr. 383, 1597-1610, 1623-26, 1647-49, 1671-72, 1731; JX-XXXIV, RX-L, RX-MM-I).

Coroner Lysek testified that the west combustion chamber was “obviously under construction” with various light stands and tools set about the walls. Upon entering, he saw that “the top of that whole chamber was tarped with a very heavy green tarp.” He saw two sections of grate missing from the upper platform (also referred to herein as the “upper catwalk”) that surrounded the west combustion chamber, one on the south side that he identified as “I” on RX-MM-I and another on the north side that he identified as “J” on RX-MM-I. He also saw areas of yellow caution tape hanging downward from the upper platform walkway. (Tr. 1605-07, 1654, 1718; RX-MM-I).

Coroner Lysek took photographs of the area surrounding and above the location of the body. He examined the nearby lower platform which was about seven feet above the floor, the higher, upper platform (where the grated floor sections were missing) which was 17 feet,1 and 31/32 inches, above the floor (hereinafter any reference to “17 feet” or “17-foot” is referring to an actual height of 17 feet, 1 and 31/32 inches above the floor), and the corresponding access ladders for potential evidence. In an effort to identify any evidence that might suggest the origin of where the deceased fell from, he climbed over a three to four foot high railing that partitioned the lower platform at “H” from the lower platform at “E” identified on RX-MM-I, and another railing on the east, right side of the lower platform. He then carefully walked across the two I-beams using his left foot on the northern I-beam and right foot on the southern I-beam and climbed over another railing in order to reach the lower platform at “E” identified on RX-MM-I. Using the caged access ladder at “B”, he then climbed to the upper platform and looked down through the hole on the catwalk and saw two pieces of grating that fit the two openings leaning up against the railing at the west side of the west combustion chamber. (Tr. 161, 333-34, 1597-1613, 1622, 1630-31, 1715; JX-XIV, at p. 10, JX-XVI, at p. Calpine000089, JT-XXXIV, RX-MM-I).

During his testimony Coroner Lysek described the opening in the upper catwalk platform that was closest to, and when climbing up to the left of, the caged access ladder. He testified that he would expect there to have been contact between the body and the opening’s metal surfaces if someone of the decedent’s size had fallen through. He found no physical evidence to indicate the deceased had fallen through or near the platform opening. Also, the body’s location was not directly below the opening, which made it improbable he fell from the upper catwalk platform. He testified that the lower seven foot high platform at “E” was “directly above the body.” Coroner Lysek said that he used a very accurate Leica DISTO meter, D-8, to measure that the distance from the concrete floor to the bottom of the upper catwalk was 17 feet, 1 and 31/32s inches. (Tr. 1617-19, 1622-23, 1633, 1642, 1652, 1683-85, 1710-11; JX-XVI, JT-XXXIV, RX-MM-I).

Coroner Lysek stated that the deceased’s body was removed and that his office personnel cleaned up blood beneath the deceased’s head before the OSHA COs arrived at CT-6. He also testified that the deceased’s cell phone located near the decedent’s head and hard hat may have removed before the COs arrived at the accident scene. He further testified that a small silver colored ignition fixture was found in the decedent’s coat or shirt pocket, as well as papers in his pocket of work that was done or checked off. Coroner Lysek rendered his initial investigative findings and completed the deceased’s death certificate on December 23, 2010. He reported the cause of death as “Blunt Force Head Trauma” and the manner of death as an “Accident.” His initial investigative findings did not include rendering an assessment as to the origin of where the deceased fell from because of a lack of evidence. Coroner Lysek testified that he could not tell if the decedent fell while on the ladder leading to the 17-foot platform (at “B”, RX-MM-I) or the ladder leading to the lower level platform (at “D”, RX-MM-I). He further testified that the decedent’s body was about four feet north of the 17-foot platform opening and since he fell straight down and his body did not move he fell from above where he was and not through the opening in the 17-foot platform. He testified that “it’s unlikely that he could have fell through the opening.” He also testified that the Decedent “very likely” fell from the ladder identified as “D” leading to the lower platform at “E”, RX-MM-I. (Tr. 1637-39, 1648-49, 1664-65, 1668-70, 1681, 1684-85, 1722-33; JX-XVI at CALPINE000074, RX-L, RX-MM-I).

Detective Iatorola took many photographs while at the accident site on December 22, 2010 at about 7:00 a.m. Several of these photographs have been sealed by Court order due to their graphic nature. Photograph JX-XVI, at p. Calpine000083, shows the platform opening that was nearest the caged ladder that led to the 17-foot platform, as well as the caged ladder and a piece of dangling tape, at the north side of the west combustion chamber of CT-6. (Tr. 1636; JX-XVI).

OSHA COs Tricia Weisenberger and Nicholas (“Nate”) Burgei arrived at the BEC facility at about 9:30 a.m. on December 22. Before arriving at the accident site, it was CO Weisenberger’s understanding that an employee had fallen through an opening. They spent from about an hour and a half to two hours at the BEC facility. CO Weisenberger testified that it was fairly dark when they entered CT-6. Mr. Killgore escorted the COs to CT-6, where the coroner and Mr. Narkin were at that time. The coroner showed the COs the location of the body because, by the time they arrived, it had been moved and the blood was washed away. CO Weisenberger made no detailed notes of what the coroner told her. CO Burgei did not make any handwritten notes or sketches during, of after, the inspection. He sent CO Weisenberger an email on December 22, 2010, at 12:59 p.m., that stated that, from what he could remember, a worker fell from about 17-feet through an open hole in the catwalk. He also stated in the email that “Yellow caution tape was tied to the guard railing around all four open holes, but the tape had been cut or ripped. It was still tied to the railing, but dangling.” CO Burgei testified that he did not know of any facts that supported the assertion that the deceased was ever up on the catwalk, or that he fell. AD Kulp testified that CO Burgei’s assertion in the email that Siemens had replaced the catwalk and installed grates during the December 21, 2010 night shift was “found not to be true.” She agreed that Siemens had replaced the catwalk during the December 21, 2010 day shift. (Tr. 128-32, 157-59, 162, 223, 284-86, 309, 326, 421, 434-35, 775, 829-32, 860, 895, 905-09, 1167-69, 1637, 1704; GX-7, RX-D).

CO Weisenberger could see that the catwalk platform surrounding the combustion chambers had missing floor grates. CO Burgei took 19 photographs during the inspection. Photograph GX-1-8 taken by CO Burgei shows the floor opening to the left of the gate on the upper platform. It also shows a tarp that reached nearly down to the walkway at the west combustion chamber in the area of the platform opening. Photographs GX-1-11 and GX-1-12 also show the floor opening at the upper platform to the left of the gate. Photograph GX-1, at p. 1 (first exhibit photograph), showed yellow caution tape hanging down near, but not going across, one of the 17-foot platform openings on the south side of the west combustion chamber. CO Burgei, along with Calpine’s Environmental Health and Safety person, Al Fisher (also referred to as Fischer), used the taller access ladder to climb to the 17-foot platform surrounding the combustion chambers. He testified that neither he nor CO Weisenberger measured the platform height, the opening in the platform, the ladder, the distance from the swing gate’s right post to the opening, or the deceased’s distance from the area below the opening. CO Burgei did not project a perimeter of the upper platform opening straight down to the floor to see what was directly beneath the opening on the north side of the west combustion chamber. He did not look for or find any physical evidence to show that the decedent could have fallen through the platform opening. CO Weisenberger did not check the ladders for signs of blood, body tissue, clothing material, fiber, or scuff marks. (Tr. 132, 152, 160-63, 283-84, 301, 777-83, 813, 849-51, 857, 876-77, 915-18, 1149; GX-1, at pp. 1-19, RX-M).

CO Weisenberger identified two combustion chamber areas [BK-1 and BK-2, also sometimes referred to as the east (BK-1) and west (BK-2) combustion chambers] in CT-6 that were covered by tarps on December 22, 2010. The OSHA-1B Worksheet indicated that the tarps did not cover the catwalk area or the ladder leading to it. OSHA contends that the deceased was exposed to an opening in the elevated walkway surrounding a Unit 6 combustion chamber. CO Weisenberger testified that she believed that the deceased died from a fall, but OSHA is not sure if he fell through the platform opening. CO Weisenberger testified that the standard at issue called for either a guardrail or someone to constantly attend to the 17-foot platform opening. (Tr. 155-56, 241, 277-78, 299-300, 304, 317, 396-99, 1012, 1151, 1409; JX-III, at p. 2, GX-1-8, GX-17B, RX-E, RX-RR).

The COs left CT-6 and continued their discussions with Mr. Narkin in the control room. CO Weisenberger testified that Mr. Narkin told her a surveillance video showed the decedent walking in the direction of CT-6 from the maintenance shop at 3:32 a.m. that morning. She believes that he also told her that OMT John Horvath found the deceased sometime after 5:15 a.m. (Tr. 164, 335-36, 381-82, 483-84, 495, 1669; JX-XIV, at p. 10, RX-L, at pp. 1-2).

During interviews of Siemens’ employees conducted by CO Weisenberger in early 2011, she was told that Siemens’ employees were working on the lower area of the combustion chamber, not on the 17-foot platform, during the December 21-22, 2010 night shift. On about January 11, 2011, Mr. Gautille told CO Weisenberger that Siemens’ employees had removed forty percent of the catwalk and forty percent of the walk around platform so that they could use a crane. He told her that Siemens personnel left CT-6 at 3:30 a.m., December 22, 2010, and that they had been working on the “bottom part of [the] combustor – not on [the] platform.” He also told her that Siemens’ December 22, 2010 day shift was to replace the missing portions of the 17-foot catwalk comprising two openings at each combustion chamber. (Tr. 343, 375, 412; JX-II, at p. 3, JX-XV, at pp. 4, 6-7).

Mr. Killgore also took several photographs of the combustion chambers and the upper platforms that surrounded the combustion chambers in CT-6 after the coroner departed and while the OSHA compliance officers were on site on December 22, 2010. (Tr. 1405; JX-XXXIII). Photograph JX-XXXIII, at p. 3, shows the upper platform opening that was nearest the caged ladder that led to the 17-foot platform, as well as the caged ladder and a piece of dangling tape, at the north side of the west combustion chamber of CT-6. Photograph JX-XXXIII, at p. 9, shows yellowing cautionary tape hanging down where there is an upper platform opening and a piece of green tarp over the combustion chamber. The photograph at JX-XXXIII-A shows a piece of grating leaning up against an outside railing and the photograph at JX-XXXIII-B shows the upper catwalk leading from the west combustion chamber to the east combustion chamber, and yellow cautionary tape and a piece of green tarp near an upper platform opening at the south side of the east combustion chamber. Other photographs at JX-XXXIII, at pp. 7-9, 12-13, taken by Mr. Killgore show yellow caution tape tied to fixtures at various places on the 17-foot platform. Mr. Killgore testified that he said to the OSHA compliance officers that they were not wearing any fall protection. He then went up first to the west combustion chamber’s 17-foot platform and put a piece of grating down at the opening to the left of the top of the ladder. He further testified that the opening was visible from the ground level. (Tr. 1405-17; JX-XXXIII, GX-1, at p. 13).

AD Kulp testified that she made the final decision to issue the citation to Calpine. (Tr. 1049-50, 1128-34; JX-1). She stated that the basis for the citation was the assignment “to go into an area that involved being exposed to a temporary floor opening. That that potential existed without the employee receiving any type of special instructions, being provided any type of fall protection and training specific to the work environment.” (Tr. 1314). AD Kulp agreed that OSHA had no evidence that the decedent was on the upper catwalk platform on December 22 and that the evidence was inconclusive as to where he was when he fell. (Tr. 1170-72, 1293). AD Kulp conceded that she received information during the course of the investigation that it was a “possibility” the decedent may have entered CT-6 to merely assess the work area. She testified that the coroner told her in March, 2012, that the deceased’s injuries could have been consistent with falling from any location within CT-6’s work area. (Tr. 1111-13, 1294).

Coroner Lysek testified that the reference in the coroner’s report that the body was beneath the upper catwalk platform could be misunderstood. He clarified that it referred to his observation that the upper catwalk was generally above the body; it did not mean the body was directly below the area of missing grates in the upper catwalk platform. He stated that the body was about four feet away from the area directly below the upper platform opening. (Tr. 1732-33).

Coroner Lysek returned to the BEC facility with Dr. Edward Chmara in February 2012 to walk through the area of the accident to see if he could determine where the decedent was when he fell. (Tr. 1118, 1695-97). Coroner Lysek, after both his initial and follow-up visits to CT-6, concluded that:

[T]he evidence that is there: where the blood impact spatters were, where the body was and the position of it is, I can say he did not move. It's not as if he fell, was in pain and rolled or anything of that nature. Where he hit the ground he stayed, he did not move. And – it’s – to me logical he couldn't have fell from the turbine because of the distance away. He would have had to somehow swung or moved his body a distance north to get in the position he was. It’s not a direct fall down and if fitting through that hole he would have had to have had also some other evidence, whether it would have been on the metal surrounding that, or the bottom . . . I don't specifically know where he fell from, but I could say with – he reasonably he could not have fell from one area because of where his body was, that I think it would have had to have come from [another] area.

 

(Tr. 1705-1706). Coroner Lysek testified that it was “very likely” that the decedent actually fell from the access ladder that went up to the shorter platform [also referred to sometimes as the “Turbine” deck]. He also testified that “I also think that the area precludes a high elevation fall, and I didn’t feel that he could have gotten very high, he would have had to have fallen from a distance of approximately seven (7) feet or less, just based on the limitations of the area.” Coroner Lysek further testified that the injuries to the decedent “could be consistent with him falling from a standing position and striking something, or from a lower level.” (Tr. 1682, 1707, 1730-31).

Dr. Chmara was the forensic pathologist who performed the autopsy on the decedent on December 23, 2010. One of his tasks includes determining the cause of a death. He testified that at the time of the autopsy, it had been conveyed to him that the decedent “might have fallen through a part of a catwalk.” He determined that the death was accidental and from multiple blunt force injuries. He testified that the broad area of the decedent’s abrasion at the top of his head was “absolutely classic for a head impacting a large flat surface, i.e. a concrete floor.” Dr. Chmara further testified that the decedent “fell virtually straight downward and that’s why this is right at the top of his head.” He elaborated that as the decedent’s head hit the ground, his legs spilled over as if trying to do a somersault forward, but your head stops everything and your legs continue to go. He clarified that he had not visited the scene of the accident when he wrote the initial autopsy report. The coroner’s office received the autopsy report in July, 2011. (Tr. 1670, 1680, 1719, 1738-46, 1750-54, 1770; RX-L).

Dr. Chmara’s first visit to BEC’s facility was in in February 2012 when he and Coroner Lysek walked through CT-6 at the request of Calpine’s attorneys. Prior to this visit, Dr. Chmara and Coroner Lysek reviewed simulations of possible accidental fall scenarios that had been prepared by Calpine’s expert C. Brian Tanner. They spent about an hour and a half at the accident scene. After the visit, Dr. Chmara reviewed the photographs taken the day of the accident and the autopsy photographs. After visiting the scene, Dr. Chmara testified that “it didn’t make sense that the body would fall through those catwalks and land where it was positioned” as shown in the photographs. He further testified that he “couldn’t make sense of how the body would get five to six feet over further if the body fell straight through from there [17-foot catwalk opening where grate missing identified at “A”, RX-MM-J] and hit nothing on the way.” Dr. Chmara testified that he “did not think it was possible in any way, shape or form that that [decedent’s] body, …, fell through the opening in the catwalk and then – an unobstructed fall to the ground below from what was a height of 17 feet to the bottom of the platform. It just – it didn’t happen that way.” Dr. Chmara testified that, instead, he concluded that the deceased:

[w]as climbing up the ladder going to the 17-foot walk, I mean this is my medical opinion to a high degree of medical certainty, for the record. He was climbing up the ladder, the backside of the ladder, and tried to step over to the platform on the other side. The only way that he could be in the compromised position, in my opinion, to have the legs literally straddling that – the uprights of that other ladder, is that he somehow at some point was holding the ladder, climbing up the backside, tried to step over to the other platform by putting his left leg across in front of his right and at some point lost his balance, lost his grip, and at that point fell straight down. (Tr. 1771).

 

Dr. Chmara testified that he discussed amending the autopsy report with Coroner Lysek, but since he was no longer with Forensic Pathology Associates, he did not have the opportunity to amend any report that came from there. In late March, 2012, Coroner Lysek met with AD Kulp in his office for between one to two hours during which he reviewed about two hundred photographs of the accident scene on a large screen display. The focus was on photographs of where the body was with respect to the ladders, catwalks, including the two lower catwalks. Coroner Lysek testified that during this meeting he explained that his initial report did not identify where the decedent fell from and that the wording “fell from catwalk” did not mean fell from the 17-foot higher catwalk, the low catwalk, or the beams. He made it clear, that he did not “think that the [decedent] fell from the upper 17-foot catwalk” because of the body’s location, blood impact spatters, and the body’s distance from the turbine; as well as the lack of material evidence showing he fell through the catwalk opening. Instead, he explained to AD Kulp that the decedent fell in the area between “B” [tall 17-foot access ladder at RX-MM-I] and “D” [ladder leading to lower level platform at RX-MM-I]. (Tr. 1689-91, 1696-1707, 1753, 1756, 1760-66, 1770-74; RX-MM-I, RX-MM-J).

Safety Program

CO Weisenberger testified that she conducted an audit of Calpine’s safety programs and she did not recall finding any deficiencies in Calpine’s fall protection program. (Tr. 367, 372, 389, 392-404, 416-18, 1254 ; JX-II, at p. 5, RX-J, at pp. 4-5, RX-Q, RX-PP). Calpine’s Contractor/Visitor Safety Orientation policy called for BEC on-site contractors, such as Siemens, to “provide and keep in good repair, fences, temporary sidewalks, guard rails, barricades, warning lights, signs and other safeguards necessary to protect all personnel and the public from injury.” AD Kulp agreed the CO’s file notes indicate that Calpine “has an extensive safety and health program and training on hazards.” (Tr. 395-96, 399-400, 1307-08; RX-Q, at p. 4, JX-II).

In her OSHA-1B Worksheet for Siemens, CO Weisenberger stated:

Siemens employees did not implement the directed administrative control of placing warning signage and tape across the ladder access points. This control measure would have provided definitive, easily identifable (sic) warning to all employees accessing the upper catwalk. This would have indicated the need to use conventional fall protection when working near the unguarded edges. A combination of signage and warning tape, as described in SPM-39 instruction under sections 5.2 and 5.3 would have been a sufficient warning for Calpine employees.

(Tr. 405-06; R-J, at pp. 2, 4).

 

Mr. Narkin testified that his staff, including the deceased, was required to complete formal safety training modules every month. They were also required to do a pre-job safety checklist before each job commonly done in the plant. Mr. Narkin testified that employees were trained to first assess jobs for safety and that he put a system in place to ensure all jobs were done safely. He also acknowledged that Respondent’s Fall Protection policy called for supervisors to “[p]erform a fall hazard assessment for each job and determine the proper equipment and procedure for that specific task.” He described Calpine’s safety program as “extremely good” with a very strong safety culture. (Tr. 998, 1442, 1449-53, 1474, 1500; RX-PP).

Mr. Miller testified that Calpine had monthly safety training and a monthly safety committee meeting, and that each employee received a copy of an employee safety policy handbook. Mr. Miller stated specifically that BEC’s safety policy would require an employee working near a floor opening to wear fall protection or barricade the opening. (Tr. 1533-35, 1541-42, 1565).

Mr. Miller also testified that, as BEC’s plant manager, he reviewed the monthly safety training records to determine which hourly employees qualified for the bonus training incentive payments. He estimated that the required training for an employee adds up to about 60 to 80 hours annually. In addition, there was a peer-to-peer safety evaluation program in which an employee observed a co-worker and noted safety compliance issues on the evaluation form. The purpose of this evaluation was to promote a general sense of responsibility for safety among the employees. An employee was required to complete at least one observation each month to qualify for the monthly bonus. Further, Calpine retained an outside safety consultant, TekSolv, to conduct safety audits and training at BEC in about July 2010. (Tr. 1533-35, 1548-51, 1555-6; RX-EE, RX-LL).

  Mr. Lewis testified that every year he was employed at BEC, every employee at the plant was trained annually on safety policies and procedures for an estimated annual total of 40 hours. The training topics included ladder safety, fall protection, walking-working surfaces, hazard identification, personal protection, barricading, and incident protection training. Mr. Lewis noted that every employee received a copy of the employee safety handbook. He testified that as a LMO, he considered himself a supervisor of his crew, responsible for enforcing all of Calpine’s safety policies and procedures. He also noted that employees who had the risk of falling four feet or more were trained on fall protection procedures. Mr. Lewis stated that Calpine employees’ bonus compensation was tied to their adherence to the safety requirements, safety programs and safety training. (Tr. 603-25, 1525-26; RX-JJ, RX-PP).

Mr. Narkin testified that “every employee knows that they're empowered to either stop or not start a job, when they discovery a safety issue, and that happens frequently.” He testified Calpine employees regularly complete a job safety audit (“JSA”) or job safety briefing (“JSB”) checklist before starting a job identified on a night order and the job is “scrubbed” if the employee sees “something that he can’t do.” He said that employees were disciplined with coaching sessions, written reprimands, and, eventually, termination when they did not comply with safety policies. (Tr. 999, 1443, 1459-62, 1490-91, 1518; JX-XIII).

Mr. Narkin further testified that he prepared a pre-outage list of approximately 16 safety items, which were descriptions of situations that had caused problems at power plants during outages. He stated that he went over this pre-outage list before the overhaul project began and that he emailed it to his employees twice before the overhaul started. He also stated that one of the items on the pre-outage list was that fall protection was required at heights greater than four feet. (Tr. 990, 1451-52. 1480-82, 1509; GX-11).

The Decedent

Messrs. Lewis, Lutz, and Varga began working at BEC the same year as the decedent – 2002. (Tr. 441, 483, 567, 601, 706). Mr. Lutz testified that it was the decedent’s habit to always wear his gloves while climbing a ladder, and that he did not usually wear them while performing a task. (Tr. 508). CO Weisenberger was told during her employee interviews that the decedent's routine was to wear his gloves while climbing the ladder. He would remove his gloves after closing the gate behind him and then “do what he had to do.” (Tr. 341, 383, 386, 388, 508-10; JX-IV, at p. 3).

Mr. Varga testified that the decedent had a “great attitude about safety” and always wore his personal protective equipment; he was not aware of him working unsafely. (Tr. 706-07). Messrs. Lewis and Lutz also testified that the decedent was very safety-conscious. (Tr. 483, 510, 601-02, 671). Mr. Lewis further testified that he did not believe the decedent would knowingly expose himself to danger by climbing up to the combustion chamber when there was an opening in the platform. (Tr. 670-71).

Mr. Miller testified that the decedent’s 2003 performance evaluation included a rating of “exceeds expectations” for safety. He further testified that his observations of the decedent’s performance were consistent with that evaluation. Mr. Miller explained that the decedent “tried his hardest to complete the tasks he was given. He wanted to make sure he followed all the policies and procedures when doing so. Very conscientious, a very good work ethic, which lines up with the ratings on this particular performance evaluation.” He testified that the deceased appeared “a little more distracted” and “a little flustered” at about 6:30 p.m., December 21, 2010, at a time when some fire alarms were “going off.” (Tr. 1539-41, 1563-64, 1677-78; RX-S).

Cited Standard

The Secretary cited Calpine for violating 29 C.F.R. § 1910.23(a)(7) , which states that:

(7) Every temporary floor opening shall have standard railings, or shall be constantly attended by someone.

 

Secretary’s Burden of Proof

To establish a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition; and (4) one or more employees had access to the cited condition. Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

 

 

 

Discussion

Whether Calpine was prejudiced by OSHA’s Inspection

            Calpine asserts that it was “severely prejudiced” because OSHA did not follow its own procedures for an inspection. In particular, Calpine states that because the COs did not take measurements at the accident scene or interview the first responders the investigation was inadequate. (R. Br. 81-82). This argument fails for two reasons. First, Calpine has not provided information to show how it was prejudiced. Most importantly, Commission precedent has long held that OSHA’s internal guidance documents do not provide rights or defenses to an employer. Mautz & Oren, Inc., 16 BNA OSCH 1006, 1009-10 (No. 89-1366, 1993) (finding primary purpose of OSHA Field Operations Manual “is not to give employers particular rights or defenses in adjudicatory proceedings.”). Although the Court agrees with Calpine that OSHA’s pre-citation accident investigation was not thorough in all respects, the Court finds there is no evidence of prejudice to Calpine from OSHA’s investigation.

Whether the Secretary Has Established the Alleged Violation

Based on the record, the Court finds the cited standard applies. The evidence shows there was an opening in the 17-foot, 1 and 31/32 inches platform to the left of the caged ladder measuring about 32 inches on both its right and left side and 12 inches or more at its smallest dimension. The Court finds that the opening for which Calpine was cited meets the applicable definition of a “floor opening.” (S. Br. 13-14; Tr. 575, 776, 778-79, 1615; 1717; JX-XVI, at Calpine000083, at “A”, JX-XXXIII, at p. 3, GX-1, at pp. 8, 11, 12). The evidence also establishes that the upper platform opening was temporary in nature. (Tr. 18-19; 1013-14).

Calpine asserts the standard does not apply because it had no control over CT-6’s upper catwalk platform during the outage; instead, its contractor, Siemens, had exclusive control. Therefore, Calpine asserts that Calpine was not responsible for the upper platform’s condition. (R. Br. 65-66). When an employer neither creates nor controls the hazardous condition at a multi-employer worksite, it may defend against a citation by showing that it protected its employees by taking reasonable alternative measures or that it could not reasonably have known of the hazardous condition. Capform, Inc., 16 BNA OSHC 2040, 2041-42 (No. 91-1613, 1994) (citations omitted). The Commission has held that the employer’s conduct is viewed in its totality and “whether a reasonable employer would have done more.” Id. at 2041-42.

Calpine’s multi-employer worksite defense and argument fails, as the Court finds that it did continue to have sufficient control in CT-6. Calpine owned the CT-6 building. Calpine, through TMG, had staff present in CT-6 dedicated to the oversight of Siemens’ work. Calpine’s employees still accessed the building during the Siemens’ overhaul. Mr. Narkin acknowledged that employees had to often go to elevated platforms to perform maintenance during overhaul outages. BEC employees had to perform certain tasks that Siemens was prohibited from doing. Calpine also performed safety audits of Siemens’ work in the CT-6 building. The Court finds that Calpine had sufficient control of its own CT-6 facility to the extent that the standard applies. (Tr. 643-44, 1022-23, 1807-08; GX-11).

Under the Act, an employer has a duty to protect its own employees from workplace hazards. See 29 U.S.C. § 654(a); Baker Tank Co., 17 BNA OSHC 1177, 1180 (No. 90-1786, 1990) (Respondent had legal responsibility for the safety of its own employees). That duty may not be contracted away to third parties. See Bianchi Trison Corp. v. Chao, 409 F.3d 196, 209 & n.21 (3d Cir. 2005); Summit Contractors, Inc., 23 BNA OSHC 1196, 1207 (No. 05-0839, 2010) (finding employer may not contract out of its duties under the Act), Baker Tank Co., 17 BNA OSHC at 1180 (finding Respondent could not contract away its legal duties to its employees or its ultimate responsibility under the Act by requiring another party to perform them). When an employer denies liability on the ground that it lacked control over hazardous conditions to which its own employees were exposed, it must show, first, that it had no ability or authority to abate the hazard as required under the cited standard; and second, that it took reasonable alternative steps to protect its employees from the hazard. See Rockwell Int’l Corp., 17 BNA OSHC 1801, 1808 & n.11 (No. 93-45, 1996) (consolidated) (establishing the multi-employer worksite defense, an employer must prove three elements, including it did not control the violative condition, so that it could not itself have performed the action necessary to abate the condition, and it took all reasonable alternative measures to protect its employees from the violative condition). The employer bears the burden of establishing this multi-employer worksite defense. See Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1190 (No. 12775, 1976).

            Calpine has not met its burden of establishing this multi-employer worksite defense in this case. There is no evidence that Calpine lacked the authority or ability to prevent its employees from accessing the southern portion of CT-6, or to assign someone to constantly attend to the 17-foot high platform when it contained unguarded openings, during those periods of time when Siemens’ work crews were absent from the worksite, or otherwise. As the owner of the CT-6 building, Calpine could have taken whatever steps it deemed necessary to protect its employees when they entered CT-6 to potentially perform work there. See Cent. of Ga. R.R. Co. v. OSHRC, 576 F.2d 620, 624 (5th Cir. 1978) (“If an employer does contract with a third party to maintain safe conditions, it is to be presumed that the employer can enforce the contract.”). Calpine had the authority and responsibility to insist that Siemens comply with the requirements of § 1910.23(a)(7) during those periods when Calpine employees would be performing tasks in the CT-6 building. Calpine had the ability to abate the hazard. There is also no evidence to show that Calpine implemented any reasonable alternative abatement measures. Calpine neither asked Siemens to abate the hazard, nor attempted to abate the hazardous condition itself. Calpine could have elected to wait until Siemens had totally completed its [Siemens] overhaul-related work in CT-6 before assigning any task, potential or otherwise, to any of Calpine’s employees. Calpine could have prevented its employees from accessing the southern portion of CT-6 during those periods of time when Siemens’ work crews were absent from the worksite. The Court finds that Calpine does not qualify for the exception set out in Capform; therefore, the standard applies.

The Court further finds the requirements of the standard were violated. The standard specifies that a temporary floor opening must be either constantly attended by someone or have “standard railings.” Both parties agree there was an opening in the floor of the upper catwalk platform. And, there is no dispute that there was no one was attending the floor opening and that there was no railing around the opening at the time of the accident.

Calpine argues, however, that it did not know of the hazardous condition and that there was no actual or potential employee exposure. The Secretary must prove the employer either knew, or with the exercise of reasonable diligence could have known, of the violative condition. Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). The employer’s knowledge is directed to the physical conditions that constitute a violation. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996).

The Secretary asserts that Calpine had constructive and actual knowledge of the violative condition. She states that Calpine could have known if it had made a reasonable, diligent effort to find the hazard since the openings were readily apparent. She further states that Calpine had actual knowledge through its LMOs -- Mr. Lewis and the decedent. (S. Br. 20-21). The Court finds the Secretary has met her burden for this element for the reasons that follow.

As the Commission stated in Automatic Sprinkler Corp. of Am., 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980), an employer “must make a reasonable effort to anticipate the particular hazards to which its employees may be exposed in the course of their scheduled work.” Further, the Commission has stated 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.” KS Energy Servs., Inc., 22 BNA OSHC 1261, 1265 (No. 06-1416, 2008) petition denied, 703 F.3d 367 (7^th Cir. 2012) (citations omitted).

The actual or constructive knowledge of an employer’s supervisory personnel can be imputed to an employer, unless the employer establishes substantial grounds for not doing so. Ormet Corp., 14 BNA OSHC 2134, 2137 (No. 85-531, 1991), citing Donovan v. Capital City Excavating Co., 712 F.2d 1008, 1010 (6th Cir. 1983). The criteria to determine who can be considered supervisory personnel is set out in the Commission’s decision in Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated) (citations omitted).

An employee who has been delegated authority over other employees, even if temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an employer.

 

The knowledge of crew leaders and foremen has been imputed in prior Commission decisions. Id.; Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2069 (No. 96-1719, 2000); Jersey Steel Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), aff’d, 19 F.3d 643 (3rd Cir. 1994) (“[t]he actual or constructive knowledge of an employer’s foreman or supervisor can be imputed to the employer.”).

The Court finds an LMO is a supervisor for the purpose of imputing knowledge. The evidence shows that an LMO operated in much the same way as a foreman. The LMO’s duties include delegating tasks to the team and ensuring that safety training was completed. Further, Mr. Lutz testified that when the facility transitioned to Calpine ownership, shift supervisors were eliminated and replaced with LMOs.

Mr. Lewis testified that he knew of the platform openings approximately 24 hours before the accident. He chose not to complete the task on the night order because of the missing catwalk platform grates. Further, Mr. Lewis testified that he notified both Messrs. Narkin and Lutz of the catwalk’s condition. As the night shift LMO, his knowledge is imputed to Calpine. Mr. Killgore testified that he worked the December 21, 2010 day shift and described the activities accomplished by Siemens during that shift. Also, Mr. Rice had seen Siemens’ Shift Turner Report for December 21, 2010, at 5:00 p.m., December 21, 2010, many hours before the accident and Mr. Killgore had firsthand knowledge of the platform openings by 5:00 p.m., December 21, 2010. The Court finds that the knowledge of the unguarded upper platform floor openings of Messrs. Narkin, Lewis, Lutz, Killgore and Rice as of December 21, 2010 and carried forward through to the early morning hours of December 22, 2010 is imputed to Calpine.

The Court also finds that Calpine had constructive knowledge of the hazardous condition. Multiple witnesses testified that the openings in the upper platform present from December 20 through the time of the accident were clearly visible after entering CT-6. Mr. Narkin was aware that Siemens’ work in the CT-6 was in progress. TMG representatives were present in CT-6 with Siemens’ staff and attended daily status meetings. Mr. Narkin could have personally gone to CT-6 on December 21, 2010, or requested a status of the catwalk platform’s condition through a TMG representative. Because the condition was easily seen and TMG staff was in the vicinity, the Secretary has shown that Calpine could have known of the condition with the exercise of reasonable diligence. See Revoli Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001) (“The test for knowledge is whether an employer knew, or with the exercise of reasonable diligence could have known, of the violative condition.” ); see also Sec’y of Labor v. ConocoPhillips Bayway Refinery, 654 F.3d 472, 479-80 (3rd Cir. 2011). A hazardous condition that is “readily apparent” due to its location in a conspicuous area will support a finding of constructive knowledge, especially where employees are present in the area where the hazard is located. See KS Energy Servs., Inc., 22 BNA OSHC at 1267-68; Kokosing Constr. Co., 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996).

Finally, the Secretary must show that an employee was either actually exposed to the zone of danger or that exposure was reasonably predictable. Consol. Grain & Barge Co., 23 BNA OSHC 2055, 2065 (No. 10-0756, 2011) (citations omitted). Had the Secretary presented sufficient evidence to prove that the decedent had fallen through the upper platform opening, then actual exposure would have been shown. There is insufficient evidence to show that the decedent fell through the upper platform opening on the north side of the west combustion chamber. The Court finds that the decedent did not fall through the opening at that location. Instead, fully crediting the testimony of the coroner and forensic pathologist, the Court finds that the decedent fell from the area between the ladder leading to the lower platform that was between five to seven feet in height at “D”, RX-MM-I, and the lower, un-caged portion of the ladder at “E”, RX-MM-I, comprising not more than seven steps that led to the 17-foot platform. The Secretary has not shown the decedent was actually exposed to the hazard. To the contrary, AD Kulp admitted that the evidence was inconclusive regarding where the decedent was when he fell. The Court finds the coroner’s conclusion, that it was more likely the decedent did not fall from the area of the hazard, is persuasive. The coroner has extensive experience in accident investigation. He found no physical evidence to show the decedent fell through the floor opening. The Court further finds that the forensic pathologist, Dr. Chmara, also concluded that the decedent did not fall through the floor opening at the 17-foot platform. The Secretary did not present evidence to rebut the findings of the coroner or the forensic pathologist. The Secretary has not proven any Calpine employee exposure to the upper platform floor opening hazard, actual or otherwise.

The predictability of exposure can be determined through “evidence that employees while in the course of assigned work duties, personal comfort activities and normal means of ingress/egress would have access to the zone of danger.” Phoenix, 17 BNA OSHC at 1079 n.6. Further, “[r]easonable predictability requires more than a hypothetical possibility of exposure, though less than a certainty.” Consol. Grain, 23 BNA OSHC at 2066. There are several factors to consider in determining what was reasonably predictable in this case. Calpine’s overall safety program, the nature of the assigned task, the purpose of the night order, employee practices, and the decedent’s work history are all relevant.

The Secretary asserts that exposure is predictable based on the task to replace the spark rod in CT-6. (S. Br. 16). Calpine asserts that because the task was not listed as a priority and was conditional, it cannot be used to show that it was likely an employee would be exposed to the hazard. (R. Br. 26-28). As stated in Respondent’s brief, the test for determining access to a violative condition includes a requirement that such access be “reasonably predictable.” Consol. Grain, 23 BNA OSHC at 2065. “This requirement entails a demonstration that employees will be, are, or have been in a ‘zone of danger.’” Id., citing Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997). The Commission has held that it requires more than a hypothetical possibility that an employee could come in contact with the hazard. The Commission in Fabricated Metal Products “emphasize[d] that … the inquiry is not simply into whether exposure is theoretically possible.” Id. In Consolidated Grain, the Secretary failed to show that it was reasonably predictable that employees would be in the zone of danger, which the court found to be in front of a rotating auger where employees could be exposed to the in-running nip points of the auger. Pursuant to the company’s policy, employees were required to stay behind the rotating auger. The court noted that while it was “not impossible that an employee could come in contact with the in-running nip points of the auger, however, that is not the standard.” Consol. Grain, 23 BNA OSHC at 2066. (R. Br. at pp. 20-21).

The Court finds that the evidence shows that the task to replace the igniter was a low priority on the night order and that there was no pressure on the decedent to complete this particular task during his shift. Further, the record shows that the lighting conditions in CT-6 the morning of the accident were adequate to see the holes in the upper platform from the building’s floor; an employee did not need to climb a ladder to determine there was an opening in the upper catwalk’s platform. Mr. Narkin’s December 21, 2010 night order had two expressed conditions that had to be met before the task to replace the igniter was to be accomplished by any Calpine employee, including the decedent. Additionally, it was expected by Calpine management, that anyone, including the decedent, who may decide to tackle the igniter replacement task, would first have to do a safety assessment of the task, and in so doing, would have to readily see that the two preconditions were not yet fully met as of the pre-dawn hours of December 22, 2010, and that it would be unsafe to access the upper platform, or its surrounding zone of danger, due to the floor openings that were there. Tarps were clearly still on top of the combustion chambers and covered the place where the missing igniter was located. (SF-14). The Court finds that the tarps on the combustion chamber were readily visible from the ground level. The facts of this case make it unlikely that the decedent would have found occasion to pass within ten feet of the floor opening on the upper platform on December 22, 2010. Here, there is no evidence that any Calpine employee actually entered the zone of danger, the space within ten feet of the floor opening at the north side of the west combustion chamber’s upper platform. Nor was it predictable, or reasonably expected, that any Calpine employee would have access to the floor opening on the 17-foot upper platform, or the zone of danger, at the time of the accident.

The Court finds that the decedent never got within ten feet of the floor opening at the north side of the west combustion chamber’s upper platform and that there was no actual exposure to the hazard. CO Weisenberger testified that she did not know the location from which the decedent fell. CO Burgei acknowledged that his preliminary conclusion that the decedent fell through an opening in the upper platform was not supported by facts. AD Kulp also agreed that OSHA had no evidence that the decedent was ever up on the upper platform on December 22, 2010, and admitted that OSHA had no information proving that the decedent actually fell from the upper platform. AD Kulp also testified that it was OSHA’s position that the location from which the decedent fell to his death was “inconclusive.” (Tr. 277-78, 895-96, 907-09, 1159, 1172). The Court finds that the uncontroverted and un-rebutted testimony of Coroner Lysek and Forensic Pathologist Dr. Chmara established that the decedent did not fall through the upper platform’s floor opening. The Court finds their testimony to be very creditable. Their professional experience and credentials regarding their duties to determine a decedent’s cause of death are impressive, even more so when weighed against that of the two COs. The Court observed the demeanor of Coroner Lysek and Dr. Chmara during their courtroom testimony and found them both to be honest, knowledgeable, impartial, professional, thorough, confident, direct, and persuasive.

The Commission has frequently found exposure through access where employees had occasion to pass within 10 feet of an unguarded opening. See e.g. A. Munder & Son, Inc. and Robert Catino, Inc., 4 BNA OSHC 1593, 1595 (No. 1858, 1976); Public Improvements, Inc., 4 BNA OSHC 1864 (No. 1955, 1976). The Court finds that the access ladder at “D”, RX-MM-I, that led to the lower platform at “E”, RX-MM-I, was not more than five to seven feet in height from the floor. The Court further finds that the top of the un-caged portion of the ladder leading to the 17-foot platform was not more than seven feet in height. The Court finds that there was more than ten feet of distance from the point where the decedent fell in the area between the ladders at “B” and “D”, RX-MM-I, to the floor opening in the upper platform, which was 17 feet, 1 and 31/32 inches in height. The Court further finds that the unguarded upper platform opening was beyond the normal employee random movement contemplated by the access test and that the unguarded floor opening was too remote to pose a threat to the safety of the decedent on December 22, 2010. See Special Metals Corp., 9 BNA OSHC at 1134.

The record shows that BEC had a multi-faceted safety program which included training, audits, and discipline. Several employees testified that safety training was required for all employees on a monthly basis. Calpine provided incentives, through monetary awards, to its employees for complying with its safety training requirements. A third party was hired in July of 2010 to conduct a safety audit and provide additional safety training. Calpine had an ongoing program in which employees evaluated each other for safety compliance. The testimony of two employees demonstrated that assessing the safety requirements of a particular work activity was a part of the work culture at the BEC facility. Respondent’s Fall Protection policy called for supervisors, such as the deceased, to “[p]erform a fall hazard assessment for each job and determine the proper equipment and procedure for that specific task.” The Court finds that the evidence shows that it is more probable than not that the decedent entered CT-6 with an igniter in his pocket to perform an assessment of the job conditions related to the task of installing the igniter into the east combustion chamber. Whereas Mr. Lewis carried tools and an igniter when he performed his safety assessment relating to the identical task the day before, no tools were found with the decedent when his body was discovered after the accident. The Court finds that it was readily possible and reasonably predictable for Calpine employees, including the decedent, to enter CT-6 and perform a safety and readiness assessment of the igniter replacement task without being exposed to the opening hazard at the upper platform more than 17 feet above the floor.

Finally, the record shows the decedent had a good reputation for safety, and there was no evidence of his noncompliance in regard to safety. There is also no evidence in the record that there was a general pattern of lax safety compliance by the BEC employees. No evidence was presented to show that the decedent would be likely to engage in unsafe behavior. The Court finds that, as a whole, Calpine had a strong safety program and that the decedent’s general conduct was to follow safety procedures. Calpine employees were trained to assess their environments for safety prior to performing any work, to perform tasks only in safe conditions, to use appropriate personal protective equipment (e.g. fall protection in any condition such as that which existed at the time of the cited violation) when confronted with an unsafe condition, or to not perform the assigned taska.Calpine employees were trained to assess their environments for safety prior to performing any work, to perform tasks only in safe conditions, to use appropriate personal protective equipment (e.g. fall protection in any condition such as that which existed at the time of the cited violation) when confronted with an unsafe condition, or to not perform the assigned task . (Tr. 742, 998, 1800-04; GX-11).

The information available to Calpine, when considered in its totality, shows that Calpine would not have reasonably expected the decedent to be on the upper catwalk platform when the opening was easily seen upon entering CT-6. No witnesses saw the deceased fall. The Court finds the Secretary has not shown it was reasonably predictable for the decedent to be in the zone of danger. The Court concludes, therefore, that the Secretary has not proven either actual or reasonably predictable exposure to the cited hazard.

            The Secretary cites to two Commission decisions to support her argument that the task on the night order made it reasonably predictable that the decedent would be in the zone of danger. Nuprecon LP, 23 BNA OSHC 1817, 1819 (No. 08-1307, 2012) petition denied, Order at 1, No. 12-71026 (9^th Cir. Jan. 17, 2013); Lancaster Enters., Inc., 19 BNA OSHC 1033, 1037 (No. 97-0771, 2000). The facts in both of these cases, however, are distinguishable from the case at hand. In Lancaster, employees actually used an access ladder that was “closely adjacent’ to an unguarded skylight to gain access to their work area. In Nuprecon, the evidence showed that an employee doing pipe removal work was “closely adjacent” to an unprotected edge. Both of these cases rely on evidence of actual exposure to the zone of danger and do not aptly compare to the case at hand.

            The Secretary relies on two further Commission decisions to support her position that it was reasonably predictable for the employee to be in the zone of danger. Pete Miller, Inc., 19 BNA OSHC 1257, 1258 (No. 99-0947, 2000); Fabricated Metal Prods., Inc., 18 BNA OSHC at 1074. In Fabricated Metal, the Commission stated that “[I]n order for the Secretary to establish employee exposure to a hazard she must show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” Fabricated Metal Prods., Inc., 18 BNA OSHC at 1074; see also Nuprecon LP, 23 BNA OSHC at 1817. The zone of danger “is determined by the hazard presented by the violative condition, and is normally that area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent.” RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995); Seyforth Roofing Co., 16 BNA OSHC 2031, 2033 (No. 90-0086, 1994). The Secretary need only show employee access to the zone of danger, and need not show that employees were actually exposed. Donovan v. Adams Steel Erection, 766 F.2d 804, 812 (3rd Cir. 1985). In addition, “[i]t is well settled that brief exposures involved in passing or standing near an open edge constitute access.” Walker Towing Corp., 14 BNA OSHC 2072, 2074 (No. 87-1359, 1991). Neither Fabricated Metal nor Pete Miller assist the Secretary in her position in this case. In Pete Miller, the CO observed an employee handling materials close to the roof’s edge. Here, there is no evidence that any Calpine employee walked on, passed near or stood on the upper platform where the opening hazard was, or was within ten feet of the opening at or before the accident. In Fabricated Metal, the Commission found that the Secretary had not shown it was reasonably predictable for an employee to be in the zone of danger, just as the Court has done here.

            The Court finds that the Secretary has shown that the cited standard applies, that the terms of the standard were violated, and that Calpine knew or could have known of the hazardous condition. However, as the Secretary did not prove the required element of actual or reasonably predictable employee exposure, the citation is vacated.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

ORDER

            Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

 

 

 

 

Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.23(a)(7), is VACATED.

 

                                                                                     /s/ 

                                                                        The Honorable Dennis L. Phillips

                                                                                  U.S. OSHRC Judge

 

Dated: May 22, 2013

            Washington, D.C.