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

*DECISION*

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

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

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

*I.BACKGROUND
A.THE WORKSITE
*

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

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

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

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

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

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

*B.THE ACCIDENT
*

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

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

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

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

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

*C. PRESSURE CONCRETE'S INSTRUCTIONS TO ITS EMPLOYEES
*

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

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

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

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

*D. THE JUDGE'S DECISION
*

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

*II. ARGUMENTS
*

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

*III. ANALYSIS
*

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

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

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

*A. FAILURE TO COMPLY*

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

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

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

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

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

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

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

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

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

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

*B. KNOWLEDGE
*

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

*C. CHARACTERIZATION OF THE VIOLATION*

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

*IV. PENALTY*

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

*V. CONCLUSION*

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

Edwin G. Foulke, Jr.
                                                                                                                                                                                                                   
Chairman

Donald G.Wiseman
                                                                                                                                                                                                    
Commissioner

Velma Montoya
                                                                                                                                                                                                                
Commissioner

Dated: December 7, 1992

------------------------------------------------------------------------


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

*APPEARANCES:
*

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

_*DECISION AND ORDER
*_

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

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

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

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

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

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

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

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

Section 1926.21(b)(2) provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. I Suppose that -- Each individually?

Q. Yes.

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

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

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

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

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

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

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

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

*_Item 2: 29 C.F.R.§1926.59(h)
_*

*Section 1926.59(h) provides:
*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

_*Penalties *_

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

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

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

_*FINDINGS OF FACT AND CONCLUSIONS OF LAW
*_

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

_ORDER
_

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

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

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

EDWIN G. SALYERS
                                                                                                                                                                                                                                                        
Judge

FOOTNOTES:

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

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

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

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

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

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

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

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

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