” SECRETARY OF LABOR, \t Complainant,\t v.\tOSHRC Docket No. 03-1305GREENLEAF MOTOR EXPRESS, INC.,\t Respondent.\t APPEARANCES:Eve Marie Stocker, Attorney; Daniel J. Mick, Counsel for Regional TrialLitigation; Ann Rosenthal, Counsel for Appellate Litigation; Joseph M.Woodward, Associate Solicitor for Occupational Safety and Health; HowardM. Radzely, Solicitor of Labor; U.S. Department of Labor, Washington, DC For the Complainant Thomas R. Wyatt, Esq.; David S. Farkas, Esq.; Ross, Brittain & SchonbergCo., L.P.A., Cleveland, Ohio For the Respondent DECISIONBefore: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.BY THE COMMISSION:Before the Commission are seven citation items issued to Greenleaf MotorExpress, Inc. (Greenleaf) under the Occupational Safety and Health Actof 1970, 29 U.S.C. \u00a7\u00a7 651-678 (OSH Act), for alleged violations of thepermit-required confined space standard set forth under 29 C.F.R.\u00a7 1910.146.^Footnote The citations wereissued to Greenleaf following a fatality investigation by theOccupational Safety and Health Administration (OSHA) at Greenleaf\u2019stanker transport facility in Ashtabula, Ohio. Administrative Law JudgeCovette Rooney affirmed these items as alleged \u2013 three serious and fourwillful \u2013 and assessed a total penalty of $115,750.On review, Greenleaf does not dispute noncompliance with the citedprovisions. At issue is whether its tankers were permit-requiredconfined spaces, and whether Greenleaf knew that its tanks had thepotential to contain a hazardous atmosphere. Also on review is whetherthe judge erred in affirming four of the items in question as willfuland in excluding the testimony of Greenleaf\u2019s expert witness. For thefollowing reasons, we affirm the citation items in question,characterize the four willful items as serious, and assess a totalpenalty of $26,150.^FootnoteBackgroundGreenleaf operates a tanker transport business that includestransferring titanium dioxide slurry between two plants at the nearbychemical manufacturing facility of its client, Millennium Chemicals(Millennium). The transfer process requires that Greenleaf\u2019s tankers bepressurized to facilitate offloading, for which there were two hoses inMillennium\u2019s offload area \u2014 one containing plant air and the othercontaining nitrogen, a substance that displaces oxygen. Operatorsemployed by Millennium hooked up either the nitrogen or plant air lineto an intake valve located on the side of each tanker in order topressurize the tanker for unloading. The hose attached to the nitrogenline had been marked as containing nitrogen until about two months priorto the accident which resulted in the citation in contest. Theidentification of the nitrogen hose, as such, was removed by paintersduring routine maintenance. Following the slurry transfer operations, Greenleaf\u2019s tankers returnto its facility where Greenleaf employees pressure-wash them with plainwater while standing inside the tankers. The tanker cleaning operationsoccur nearly daily, and require entry through a thirty-three inchdiameter manhole located on top of the tankers. The assigned cleanerplaces a ladder, light, and pressure washer down into the tanker, andwashes the tanker walls from the inside with pressurized plain water.On the evening of December 20, 2002, Greenleaf employee Jeremy Imrieperformed slurry transfers at Millennium\u2019s facility. According to theunrebutted testimony of Millennium personnel, nitrogen was used thatnight to pressurize the tanker that Mr. Imrie operated. On the morningof December 21, 2002, Greenleaf assigned Mr. Imrie the task of cleaningthe tanker that he had operated the previous evening. Shortly after Mr.Imrie commenced work, Greenleaf personnel found him dead inside thebottom of the tanker.DiscussionA. Permit-required Status of Greenleaf\u2019s TankersGreenleaf has stipulated that its tankers are confined spaces as definedby 29 C.F.R. \u00a7 1910.146(b), but disputes the judge\u2019s finding that itstankers are permit-required confined spaces. A confined space ispermit-required if it \u201c[c]ontains or has a potential to contain ahazardous atmosphere,\u201d which includes the following:\/Hazardous atmosphere \/means an atmosphere that may expose employees tothe risk of death, incapacitation, impairment of ability to self-rescue(that is, escape unaided from a permit space), injury or acute illnessfrom one or more of the following causes:. . . .(3) Atmospheric oxygen concentration below 19.5 percent or above 23.5percent . . . .29 C.F.R. \u00a7 1910.146(b). As the judge found, the record here clearly establishes thatthe tanker in which the accident occurred contained a hazardousatmosphere and, therefore, was properly characterized as apermit-required confined space. Upon discovering Mr. Imrie on the floorinside the tanker, Greenleaf personnel summoned the fire department forhelp. Paramedic Michael Sandella testified that when he arrived at thefacility within minutes of Greenleaf\u2019s call, he placed an IndustrialScientific No. 412 air monitoring device inside the tanker, and itimmediately sounded an alarm and digitally registered an oxygen readingof eleven percent.^Footnote This level issubstantially below the standard\u2019s lower permissible threshold of 19.5percent oxygen. Thus, the eleven percent oxygen concentration thatexisted in the tanker shortly after the accident establishes that itcontained an oxygen deficient atmosphere on December 21, 2002.Accordingly, we find that the tanker was properly classified aspermit-required under the standard.^Footnote \/See Mobile PremixConcrete, Inc.\/, 18 BNA OSHC 1010, 1012 (No. 95-1192, 1997) (relying onfatal engulfment accident in finding hopper to be a permit-requiredconfined space).^FootnoteB. Knowledge The Secretary\u2019s burden of proving a violation includesshowing that the cited employer had actual or constructive knowledge ofthe violative condition. \/E.g., Precision Concrete Constr.\/, 19 BNA OSHC1404, 1406 (No. 99-0707, 2001). Because the record fails to establishGreenleaf knew of Millennium\u2019s nitrogen use in the slurry offloadprocess, we see no basis on which to find here that Greenleaf had actualknowledge that its tankers were permit-required. Indeed, there is noevidence that Greenleaf supervisory personnel observed or had been toldthat the nitrogen hose, located in the slurry offload area, had beenused to pressurize Greenleaf\u2019s tankers. Nor is there any evidence thatGreenleaf otherwise knew that its tankers had the potential to becomeoxygen deficient. It is undisputed that Greenleaf had not experiencedany adverse atmospheric incidents inside the tankers prior to Mr.Imrie\u2019s accident that would have alerted it to the potential of suchhazards, and its consultant\u2019s report designating the tankers aspermit-required does not identify the basis of that determination.Constructive knowledge is established where the evidence shows that theemployer \u201ccould have known about [the cited condition] with the exerciseof reasonable diligence.\u201d \/Hamilton Fixture\/, 16 BNA OSHC 1073, 1087(No. 88-1720, 1993), \/aff\u2019d without published opinion\/, 28 F.3d 1213(6th Cir. 1994). In assessing reasonable diligence, the Commission hasconsidered \u201cseveral factors, including the employer\u2019s obligation to haveadequate work rules and training programs, to adequately superviseemployees, to anticipate hazards to which employees may be exposed, andto take measures to prevent the occurrence of violations.\u201d \/PrecisionConcrete Constr.\/, 19 BNA OSHC at 1407. In addition to an employer\u2019s\u201cgeneral obligation to inspect its workplace for hazards,\u201d^Footnote the confined spacestandard specifically requires that an employer \u201cevaluate the workplaceto determine if any spaces are permit-required confined spaces.\u201d 29C.F.R. \u00a7 1910.146(c)(1). Reasonable diligence clearly required Greenleaf to makegreater efforts to discover whether Millennium used nitrogen topressurize the tankers for a number of years. The hose supplying thenitrogen was located approximately ten feet from Millennium\u2019s plant airhose in the slurry offload area. The testimony of Raymond Beckwith, afield operator for Millennium, established that, based on hisexperience, it was more likely that nitrogen, not plant air, would to beused to pressurize the tankers. He testified that Millennium\u2019s plant airwas not always working, but that \u201c[w]e always have [nitrogen],\” which heused \u201caround 90 percent\u201d of the time. Beckwith\u2019s testimony, along withthat of the other Millennium employee who testified, shows that at leastsome of Millennium\u2019s employees routinely used the nitrogen to pressurizeGreenleaf\u2019s tankers, including the tanker Mr. Imrie drove the nightbefore his accident. Greenleaf manager Robert Herron accompanied Mr.Imrie on two slurry deliveries at Millennium\u2019s facility that night. Atthat time, Mr. Herron observed that there was more than one pressurizinghose available to hook up to the tanker, and had also known thatMillennium had nitrogen gas available in another part of its facility.Greenleaf general supervisor Louis Malensek testified that he, too, hadobserved a nitrogen line in a different area of Millennium\u2019s facility,and was aware of the hazards associated with nitrogen-caused oxygendisplacement.^Footnote Had Greenleaf askedMillennium what substances it used to pressurize the tankers, or had itinspected Millennium\u2019s workplace in the slurry offload area, it couldhave known of Millennium\u2019s nitrogen use. \/Cf. Active Oil Service Inc.,\/21 BNA OSHC 1092, 1095-96 (No. 00-1482, 2005) (concluding that fuel tankservicing contractor violated cited standard where, after observingpyro-oil in tanker it was hired to clean and being told of itsflashpoint, contractor failed to inquire further to \u201cobtain availableinformation to determine whether pyro-oil was a flammable material andnot a combustible material as [it] had assumed\u201d).^FootnoteIn these circumstances, we find that Greenleaf\u2019s failure to makereasonable inquiries regarding the substances Millennium introduced intoits tankers establishes that Greenleaf failed to exercise reasonablediligence and, therefore, had constructive knowledge of the potentialfor its tankers to contain atmospheric hazards. Accordingly, we affirmall seven citation items on review. C. Willful Characterization The Commission and courts make a distinction between merenegligence and willfulness, holding that the former is sufficient foraffirming a non-willful violation, but that willfulness is characterizedby an intentional, knowing failure to comply with a legal duty. \/E.g.,Am. Wrecking\/, 351 F.3d 1254, 1264 (D.C. Cir. 2003) (reversing willfulfinding where employer \u201cshould have known\u201d of hazardous condition, courtstated that willfulness requires \u201can intentional or conscious disregardfor the applicable safety standard or for employee safety\u201d). As thecourt stated in \/AJP Constr. Inc. v. Secretary\/, 357 F.3d 70, 75 (D.C.Cir 2004), \u201cto sustain a willful violation, \u2018[t]he Secretary must showthat the employer was actually aware, at the time of the violative act,that the act was unlawful, or that it possessed a state of mind suchthat if it were informed of the standard, it would not care.\u2019\u201d (Emphasisand citations omitted.) The judge affirmed the four items contained in Citation 2 aswillful. She found that Greenleaf knew its tankers were permit-required,implemented and trained its employees in the requirements of itsconfined space program that tracked the requirements of the standard,and then ignored its own program without any credible explanation. Asdiscussed above, however, the record fails to support finding thatGreenleaf had actual knowledge of the violative conditions. In theabsence of such knowledge, the evidence that Greenleaf falsified itsatmospheric testing reports as well as Mr. Malensek\u2019s apparentdishonesty in claiming that he would have monitored Mr. Imrie\u2019s tankentry had he known about it, shows only a failure to comply with companyprocedures that Greenleaf did not know were required under the Act. \/SeeGeorge Campbell Painting Corp.\/, 18 BNA OSHC 1929, 1934-35, 1999 CCHOSHD \u00b6 31,935, p. 47,390 (No. 94-3121, 1999) (finding failure to usefall protection required by company rule was not willful wheresupervisor lacked knowledge that it violated the Act). In thesecircumstances, we find no basis on which to conclude that Greenleaf\u2019snon-compliance with the cited provisions demonstrated a consciousdisregard of its statutory obligations.^Footnote \/See Am. Wrecking\/,351 F.3d at 1264 (observing that willfulness requires actual rather thanconstructive knowledge that the conditions violate the statute orregulations, \u201c\u2018for otherwise we are back to negligence\u2019\u201d) (citationomitted). Accordingly, we affirm the four violations alleged underCitation 2 as serious.^FootnoteD. Exclusion of Greenleaf\u2019s Expert Witness As a final matter, Greenleaf contends on review that thejudge erred in granting the Secretary\u2019s motion to exclude Greenleaf\u2019sproffered expert testimony. The judge based her ruling on Greenleaf\u2019suntimely disclosure of its proposed expert ten days after the deadlineto which the parties had earlier agreed, and her dissatisfaction withthe expert\u2019s qualifications in his proposed area of expertise as well ashis ability to assist her in understanding the delineated issues.Greenleaf admits that its disclosure was made after the deadlinespecified in the scheduling order, but contends for the first time onreview that the Secretary had orally agreed to an extension of time.Greenleaf acknowledges that any such agreement is not contained in therecord, and the Secretary denies that it occurred, explaining thatGreenleaf merely notified her that the expert\u2019s report was forthcoming.Greenleaf provided no explanation to the judge for its delay, nor did itrequest that it be excused or assert that it was harmless. Under thesecircumstances, we conclude that the judge properly found thatGreenleaf\u2019s disclosure of its proposed expert was untimely. \/Cf.\/\/Poulis-Minott v. Smith\/, 388 F.3d 354, 358 (1st Cir. 2004) (noting thatunder Federal Rules of Civil Procedure timely expert disclosure ismandatory, but belatedly proffered evidence admissible if delay was\u201c\u2018substantially justified or harmless\u2019\u201d) (citation omitted); \/JerseySteel Erectors\/, 16 BNA OSHC 1162, 1165-66 (No. 90-1307, 1993)(upholding judge\u2019s sanction excluding evidence not revealed inpre-hearing submissions where evidence deemed not critical to defenseand its admission prejudicial to Secretary), \/aff\u2019d\/, 19 F.3d 643(3d^Cir. 1994). Greenleaf also contends that the expert testimony \u201cwouldhave established conclusively that the tankers were not [permitspaces].\u201d Federal Rules of Evidence, Rule 702 provides for the admissionof expert testimony that \u201cwill assist the trier of fact to understandthe evidence or to determine a fact in issue.\u201d \/See also\/ \/Daubert v.Merrell Dow Pharm., Inc.\/, 509 U.S. 579 (1993) (setting forth criteriafor assessing reliability of expert testimony); \/Kumho Tire Co. v.Carmichael\/, 526 U.S. 137 (1999) (principles of \/Daubert\/ apply toscientific, technical, and other areas of specialized knowledge). Basedupon our review of the expert\u2019s preliminary report that Greenleafsubmitted to the judge, we find that the record supports the judge\u2019sconclusion that the proffered testimony would not satisfy the Rule 702criteria as it relates to the question of whether the tankers werepermit spaces. The report does not address any factual issue thatrequired scientific or technical expertise to understand, nor did itrely on any methodology to support the stated opinions. Moreover,although unknown by the judge until the hearing, the fire department\u2019sair monitoring inside Greenleaf\u2019s tanker is objective evidence that isdispositive of the disputed issue. The expert\u2019s report does not addressthe air monitoring at all. Under these circumstances, just as there was no need for theSecretary to submit expert testimony on this issue, neither was thereany basis for the judge to reconsider her decision to exclude thetestimony of Greenleaf\u2019s expert. \/See Arcadian Corp.\/, 20 BNA OSHC 2001,2009-10 n.7 (No. 93-0628, 2004) (because record is clear on issue, therewas no scientific or technical dispute necessitating expert testimony).\/See also Nimely v. City of New York\/, 414 F.3d 381, 398 (2nd Cir. 2005)(ruling that judge erred by admitting expert testimony amounting tocredibility assessments of other witnesses\u2019 testimony as it would not\u201c\u2018assist the trier of fact\u2019\u201d but \u201c\u2018attempts to substitute the expert\u2019sjudgment for the jury\u2019s\u2019\u201d) (citation omitted). Accordingly, we concludethat the judge\u2019s exclusion of the expert was not an abuse of discretion.E. Penalties With respect to the items on review, the judge assessed theproposed penalties based on her finding that the severity of all of thecited conditions was high, but that the probability was greater for somethan for others. The compliance officer testified that the proposedpenalty amounts reflected a sixty percent reduction for Greenleaf\u2019ssmall size and a reduction for its lack of prior citation history. Greenleaf does not contest the appropriateness of thepenalty amounts with respect to size, gravity, or history, though itargues that its safety program and inspection compliance showed goodfaith. \/See \/OSH Act \u00a7 17(j), 29 U.S.C. \u00a7 666(j). As the judge found,however, Greenleaf\u2019s non-compliance with its own program undermines anygood faith claim. Moreover, we find that Greenleaf\u2019s falsification ofatmospheric testing reports further demonstrates a lack of good faith.In these circumstances, we concur with the judge\u2019s penalty assessmentsfor the items she affirmed as serious, and adjust only the amounts forthe willful items we have reclassified as serious.Therefore, based on our assessment of the section 17(j) factors, we findthat the following penalty amounts are appropriate here: SeriousCitation 1: Item 2 – $750, Item 3 – $1,500, and Item 4(a) and (b) -$1,500 (combined). Willful Citation 2: Item 1(a) and (b) – $5,600(combined), Item 2 – $5,600, Item 3 – $5,600, and Item 4(a) and (b) -$5,600 (combined). Order Accordingly, we affirm Items 2, 3, 4(a) and 4(b) of SeriousCitation 1 as characterized and assess the total proposed penalty of$3,750 for these items. We also affirm Items 1(a), 1(b), 2, 3, 4(a) and4(b) of Willful Citation 2, but characterize these violations as seriousand assess a total penalty of $22,400 for these items.SO ORDERED. _\/s\/_____________________________ W.Scott Railton Chairman _\/s\/_____________________________ ThomasinaV. Rogers Commissioner _\/s\/_____________________________ HoraceA. Thompson, III Commissioner Dated: January 29, 2007————————————————————————SECRETARY OF LABOR,\t Complainant,\t v.\t OSHRC DOCKET NO. 03-1305 GREENLEAF MOTOR EXPRESS, INC., \t Respondent.\t Appearances: Heather A. Joys, Esquire Thomas R.Wyatt, Esquire Office of the Solicitor Ross,Brittain & Schonberg Co., L.P.A. U.S. Department of Labor Cleveland, Ohio Cleveland, Ohio Forthe Respondent. For the Complainant. Before: Administrative Law Judge Covette Rooney\/DECISION AND ORDER\/ This proceeding is before the Occupational Safety and HealthReview Commission (\u201cthe Commission\u201d) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. \u00a7 651 \/et seq.\/(\u201cthe Act\u201d). Respondent, Greenleaf Motor Express, Inc. (\u201cGreenleaf\u201d), isin the business of transporting materials both locally and over statelines. It maintains a facility in Ashtabula, Ohio, at which it performsthe cleaning and maintenance of its trucks and tank trailers. (Tr. 42).Greenleaf employs mechanics, tank cleaners and truck drivers, and itadmits that it is an employer engaged in a business affecting commercewithin the meaning of section 3(5) of the Act and that it is subject tothe requirements of the Act. On December 23, 2002, OSHA Compliance Officer (\u201cCO\u201d) ReinaldoRivera, an industrial hygienist, and OSHA CO Rick Dvorak were assignedto conduct an investigation of a fatality that had occurred at theGreenleaf facility on December 21, 2002. As a result of the inspection,on June 20, 2003, Greenleaf was issued serious, willful andother-than-serious citations alleging violations of OSHA\u2019s confinedspaces standard. Greenleaf brought this matter before the Commission byfiling a timely notice of contest, and a hearing was held before theundersigned on March 2 and 3, 2004, in Cleveland, Ohio. Counsel for theparties have submitted post-hearing briefs and reply briefs.\/Factual Background\/ Greenleaf uses tank trailers to haul a number of materials,and one of its operations involves taking titanium dioxide in the formof \u201cslurry\u201d from one plant to another at Millennium Chemicals(\u201cMillennium\u201d), a chemical company also located in Ashtabula that makestitanium-based products. Footnote Greenleaf\u2019scleaning operations are performed in the tank room at its Ashtabulafacility, where a variety of tank trailers are cleaned. The only tanksthat tank cleaners are required to enter are those that are used to haulslurry. The tank room is essentially a bay large enough to accommodate atank trailer in addition to a holding tank on the side to collectresidual material for recovery. (Tr. 63-65, 228-29, 232, 283). One ofthe tank trailers used to transport slurry is depicted in Exhibit C-3,and the dimensions of such tanks are set out in Exhibit C-7. Greenleaf\u2019s tank room operations are supervised by the tankroom lead man, a working supervisor whose duties include supervising thetank room work, completing entry permits, and training tank cleaners.The lead man answers to Louis Malensek, the facility\u2019s generalsupervisor. At the time of the accident, Ricky Snyder was the tank roomlead man, and Jeremy Imrie was the other person employed to clean tanktrailers. Footnote Mr. Snyder wastrained by Earl Jeffers, a former lead man, who was trained by DavidLane, another former lead man. (Tr. 44-45, 151-53, 226-27, 234). The tank cleaner enters the tank to be cleaned through amanhole located on the top and in the center of the tank; the manhole,with a diameter of 32 to 33 inches, is the only means of entry to andexit from the tank. The tank cleaner hooks up hoses to the end of thetank for drainage and puts a ladder and a light down into the tank alongwith a pressure washer. The tank cleaner then washes the walls insidethe tank with a pressurized hose that utilizes only water; the cleaningprocess typically takes from a half hour to an hour and 15 minutes.Footnote Tankcleaning is done on an almost daily basis, and one former tank cleanertestified he cleaned 30 to 50 tanks per month. In 1994, Greenleafcontracted with Charles Management (\u201cCharles\u201d) to conduct a confinedspace analysis of Greenleaf\u2019s tanks and to develop a confined spaceprogram. That program specifically designates the tank trailers used tohaul slurry as permit-required confined spaces and sets outpermit-required confined space procedures; among the procedures ismonitoring for oxygen deficiency and ensuring that oxygen levels arefrom 19.5 percent to 20.5 percent. The program also covers the need forventilation and the completion of an entry permit as well as the needfor an attendant, communication equipment, and training of entrants.Besides the Charles program, Greenleaf had its own confined spacetraining materials and a commercial training pamphlet prepared by J.J.Keller & Associates (\u201cJ.J. Keller\u201d). These addressed the hazards ofconfined spaces, including atmospheric hazards; they also specifiedprocedures employees were to follow in confined space entry, such ascompletion of permits, atmosphere testing and monitoring, attendant andtraining requirements, ventilation of the confined space, and emergencyand rescue procedures. (Tr. 13, 46-47, 151-52, 231-33, 281, 285; Exhs.C-12, pp. 10-12, 17-20; C-13; C-14, pp. 2-10; C-15, pp. 8-19; C-18). Jeremy Imrie was hired twice by Greenleaf. He was first hiredand trained in confined space tank cleaning procedures in May of 2002.He worked for Greenleaf for approximately two months, left, and thencame back the week of the fatal accident. On December 20, 2002, Mr.Imrie was assigned to perform the slurry transfers between the twoMillennium facilities. Because it was the first time he had done thiswork, Greenleaf Garage Manager Robert Herron, who had made similardeliveries, was assigned to accompany Mr. Imrie. Mr. Herron went withMr. Imrie on two of these runs before leaving Mr. Imrie to complete theremainder of the transfers on his own. The tank trailer being used forthe deliveries was Tank Trailer 174 (\u201cTank 174\u201d). (Tr. 215-20, 232-34). Millennium has Greenleaf perform titanium dioxide transfersbetween its plants on a routine basis, and the procedure is the same foreach transfer; slurry is picked up at one plant and taken to the other.Upon arriving at the plant receiving the slurry, the driver signs in atthe gate, after which the plant is notified that a delivery is beingmade; an operator then goes to the area where the slurry is to beoff-loaded to assist the Greenleaf driver. Millennium had no writtenprocedures about how to perform off-loading. (Tr. 65, 75, 125-26,218-20, 439, 447, 453-54, 457; Exh. C-16). At the hearing, Millennium operators and Greenleaf driversdescribed the off-loading process. First, a hose leading to Millennium\u2019stanks is attached to an outlet at the bottom of the tank trailer.Another hose is then attached to a valve at the top of the tank traileror to a pipe on the side leading to the top. This second hose useseither pressurized plant air or nitrogen to assist in the removal of theslurry from the truck. The two hoses are 10 to 12 feet away from oneanother, and on December 20, 2002, neither hose was marked withidentification. Footnote Raymond Beckwithand Jason Weeston, two operators from Millennium, testified that theyutilized either compressed plant air or nitrogen for this process; thechoice of air was based upon variables such as proximity and which linewas operable. Millennium operators normally performed the hookup ofthese hoses, and there was no procedure for informing Greenleaf driverswhether plant air or nitrogen was being used. (Tr. 68-72, 75-78, 92-94,106, 113, 119, 125-28, 137-38, 146, 440, 447, 454, 458). On the evening preceding the accident, Mr. Beckwith was theoperator assisting Mr. Imrie to off-load, and he stated that he had usednitrogen to pressurize the tank trailer. He further stated that duringthe second load he informed Mr. Imrie that he would \u201ctrim back on [thenitrogen]\u201d when Mr. Imrie complained that the loading process at theother plant was taking too long because there was too much pressure inthe tank. It was his impression that Mr. Imrie had no real understandingof nitrogen, and he believed that Mr. Imrie was only concerned with thepressure and that he could have used the term \u201csoup\u201d and gotten the sameresponse. (Tr. 80-82, 110-11). The following day, which was Saturday, December 21, 2002, Mr.Imrie returned to the Greenleaf facility to clean out Tank 174. Mr.Malensek testified that he would have been the attendant that day andthat after Mr. Imrie had pulled Tank 147 into the tank room at about9:30 a.m., he (Mr. Imrie) told Mr. Malensek that there was sludge in thebottom. He also told him he had to pick up his daughter around10:00 a.m.that day, and Mr. Malensek advised him to just rinse the tank from thetop so that he would not have to worry about getting dirty. Mr. Malensekfurther testified that it would not have been possible to clean the tankin 30 minutes and that the \u201cpre-wash\u201d would get a lot of the materialout that one would not normally have to be in the tank to remove withthe pressure washer. Footnote Mr. Herronassisted Mr. Imrie to connect the hose going from the unloading valve onthe tank to the holding tank, and he then went to the office and hadcoffee with Mr. Malensek. At about 10:00 a.m., when Mr. Herron enteredthe tank room to notify Mr. Imrie of the time, he found Mr. Imrieunconscious in the bottom of the tank. Mr. Herron immediately jumpedinto the tank, even though, as he testified, he had little training inconfined space entry and was unaware of Greenleaf\u2019s emergencyprocedures. Mr. Herron also testified that before he entered the tank,he did not summon any rescue service or follow any confined space entryprocedures to ensure that the tank was safe to enter. Mr. Herron thensummoned Mr. Malensek, who also entered the tank without first takingany precautionary steps. (Tr. 222-24, 235, 247-51, 254-57). The Ashtabula Fire Department went to the scene afterreceiving a call reporting a man down in a tank at Greenleaf. Uponarriving, Paramedic Michael Sandella was met by a representative ofGreenleaf who said that the tank contained titanium dioxide. Mr.Sandella put on a self-contained breathing apparatus and climbed intothe tank, where he saw the lifeless victim laying on his back andwearing a rain suit. Mr. Sandella had seen no signs on the tankindicating what was in it, and he ordered Mr. Malensek, who was in thetank and struggling to breathe, to leave. Mr. Sandella took readings ofthe atmosphere, and he noted that as soon as the monitoring device washanded down to him in the tank the alarm sounded and registered an11-percent oxygen reading. Footnote He also notedthere was a light in the tank, as well as a ladder, a pressure washerand a garden hose; however, he saw no monitoring device, ventilationequipment or alarm system, and Mr. Imrie did not have on a respirator ora harness. (Tr. 12-19, 224; Exh. C-1).\/Stipulated Facts\/ The parties have stipulated to the following facts: 1. Tank cars used by Greenleaf Motor Express in the transportof titanium dioxide are confined spaces as that term is defined in 29C.F.R. \u00a7 1910.146(b). 2. Titanium dioxide vapors do not pose an inhalation hazard. 3. Tank Trailer No. 174 was used to transport titaniumdioxide on at least December 20, 2002. 4. Tank Trailer No. 174 was driven by Jeremy Imrie onDecember 20, 2002. 5. Jeremy Imrie was the last individual to drive Tank TrailerNo. 174 prior to the December 21, 2002 accident. 6. Jeremy Imrie did not complete a confined space entrypermit prior to entering Tank Trailer No. 174 on December 21, 2002. 7. Jeremy Imrie did not use a safety line or body harnesswhen entering Tank Trailer No. 174 on December 21, 2002. 8. Prior to December 21, 2002, Greenleaf Motor Express had noventilation equipment available for employee use at its facility at 4606State Road in Ashtabula, Ohio. 9. No attendant was present when Jeremy Imrie entered TankTrailer No. 174 on December 21, 2002.\/The Secretary\u2019s Burden of Proof\/ The Secretary has the burden of proving her case by apreponderance of the evidence. In order to establish a violation of anOSHA standard, the Secretary must show (a) the applicability of thecited standard, (b) the employer\u2019s noncompliance with the standard\u2019sterms, (c) employee access to the violative condition, and (d) theemployer\u2019s actual or constructive knowledge of the violation (\/i.e.\/,the employer either knew, or with the exercise of reasonable diligencecould have known, of the violative condition). Footnote \/Atlantic BatteryCo.\/, 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994).\/Serious Citation 1 – Item 1 – 29 C.F.R. 1910.132(a)\/ This item alleges a violation of 29 C.F.R.1910.132(a), whichprovides as follows:Protective equipment, including personal protective equipment for eyes,face, head, and extremities, protective clothing, respiratory devices,and protective shields and barriers, shall be provided, used, andmaintained in a sanitary and reliable condition wherever it is necessaryby reason of hazards of processes or environment, chemical hazards,radiological hazards, or mechanical irritants encountered in a mannercapable of causing injury or impairment in the function of any part ofthe body through absorption, inhalation or physical contact. The Secretary alleges that fall protection was not providedfor a tank cleaner who was required to stand on top of the tank to openthe hatch and manipulate a water hose into the tank before entering it.I find that a fall hazard requiring the use of personal protectiveequipment existed and that Greenleaf failed to require the use of suchequipment. The record establishes that to enter a tank, an employee hadto climb a ladder on the side of the tank and onto a platform that was 4feet by 4 feet. From the top of the tank, the employee opened the hatchto get the water hose inside and also placed a ladder inside so he couldenter the tank; the top of the tank was narrow and the sides slopeddown, presenting a fall hazard. (Tr. 158, 300-01; Exhs. C-3, C-7).Theparties have stipulated that on December 21, 2002, Mr. Imrie did not usea safety line or body harness to enter Tank 174. Further, the recordshows that a worker on top of a tank could have fallen 10 to 12 feet tothe ground, which could have resulted in death or an injury such as aleg fracture. (Tr. 300-03). To prove a violation of the cited standard, the Secretarymust show either that the employer had actual notice of the need forprotective equipment or that a reasonable person familiar with thecircumstances would recognize a hazard warranting the use of protectiveequipment. \/See Peavey Co\/.,16 BNA 2022\/, \/2024 (No. 89-2836, 1994), andcases cited therein. Greenleaf had actual notice of the need for fallprotection equipment in light of its confined space entry procedures, asset out \/supra\/. \/See\/ Exhibits C-12, p.11, and C-14, p. 5. Despite thisknowledge, Greenleaf management did not require employees to wear anduse fall protection when climbing up onto tanks, as is clear from Mr.Imrie\u2019s actions on the day of the accident. (Tr. 19, 50, 158-59, 301).Greenleaf also had constructive knowledge of the cited condition, inthat an employer\u2019s failure to properly instruct its employees on anecessary safety precaution will establish the Secretary\u2019s prima faciecase of constructive knowledge of the violation. Footnote \/Brock v. L.E.Myers Co.\/, 818 F.2d 1270,1277(6th Cir. 1987), \/cert. denied\/, 484 U.S.989 (1987). Based on the record, I find that the Secretary has met herburden of proving the alleged violation. I also find that the violation was properly classified asserious, as there was a substantial probability that a fall of 10 to 12feet from the top of a tank to the floor below would result in death orserious physical harm. (Tr. 300-03). \/See also\/ section 17(k) of theAct, 29 U.S.C. \u00a7 666(k). Finally, I find that the Secretary\u2019s proposedpenalty of $1,500.00 is appropriate. In assessing penalties, theCommission is required to give due consideration to the gravity of theviolation and to the employer\u2019s size, history and good faith.\/Merchant\u2019s Masonry, Inc.\/, 17 BNA OSHA 1005, 1006-07 (No. 92-424,1994). The most significant of these factors is the gravity of theviolation. \/Id\/. CO Rivera testified that he considered the severity ofthe condition to be high and the probability of an accident occurring asgreater, and the gravity-based penalty was reduced due to the small sizeof the employer\u2019s business and its lack of history of previous OSHAcitations; he further testified, however, that no credit for good faithwas given because Greenleaf had violated provisions of its own safetyprogram. Footnote (Tr. 302-03). The Secretary\u2019s proposed penalty of $1,500.00 is assessed.\/The Permit-required Confined Spaces Items\/ The other items in this case involve OSHA\u2019s permit-requiredconfined spaces standard. That standard, found at 29 C.F.R. 1910.146,contains requirements for practices and procedures to protect employeesfrom the hazards of entry into confined spaces. Section 1910.146(c)(1)requires an employer to evaluate its workplace to determine if anyspaces are permit-required confined spaces. Footnote The record showsthat Greenleaf had Charles do such an evaluation in 1994, and Charlesdetermined that Greenleaf\u2019s slurry-transporting tanks were in factpermit-required confined spaces. Greenleaf provided the Charles programto CO Rivera and told him it was in effect at the time of the accident,and the CO described the program as having information about \u201c[h]ow toenter the tank safely, the permitting and assigning [the] space as [a]permit required confined space.\u201d Footnote (Tr. 289; Exh.C-12). Although section 1910.146(c)(7) provides for the reclassificationof a permit-only space to a non-permit confined space, Greenleafpresented no credible evidence that the tanks were ever reclassified tonon-permit status or that it had made a determination that all hazardshad been eliminated prior to allowing employee entry. Footnote To the contrary,the fact that Greenleaf continued providing confined space entrytraining to employees and completing entry permits strongly suggeststhat there was no change to the status of the slurry-transporting tanks.(Tr. 232, 238-40, 260; Exhs. R-3, R-4, C- 15). Further, the 11-percentoxygen reading the paramedic obtained on December 21, 2002, corroboratesthe fact that the tanks had the potential to contain hazardousatmospheres. Accordingly, at the time of the alleged violations,Greenleaf\u2019s slurry-transporting tank trailers were permit-requiredconfined spaces as defined by the standard and the standard applied tothe cited conditions. The critical issue in resolving the alleged violations iswhether Greenleaf had knowledge that the tank trailers used to transportslurry contained or had the potential to contain a hazardous atmosphere.Under Commission precedent, the Secretary makes out a prima facie caseof knowledge by establishing that the employer either knew or with theexercise of reasonable diligence could have known of the presence of thehazardous condition. \/Pride Oil Well Serv.\/, 15 BNA OSHC 1809, 1814 (No.87-692, 1992). The knowledge element is directed to the physicalconditions that constitute a violation, and the Secretary need not showthat an employer understood or acknowledged that the physical conditionswere actually hazardous. \/Phoenix Roofing, Inc.\/, 17 BNA OSHC 1076,1079-80 (No. 90-2148, 1995), \/aff\u2019d without published opinion\/, 79 F.3d1146 (5th Cir. 1996). Actual or constructive knowledge of an employer\u2019sforeman can be imputed to the employer. \/A. P. O\u2019Horo\/, 14 BNA OSHC2004, 2007 (No. 85-369, 1991); \/Dun-Par Engineered Form Co.\/, 12 BNAOSHC 1962, 1965-1966 (No. 82-928, 1986). Greenleaf was aware that itsemployees entered the trailer tanks for cleaning purposes, and I findthat Greenleaf had constructive knowledge of the violations because theevidence shows that, had its supervisors exercised reasonable diligence,they could have discovered and eliminated the cited hazards. \/SeePride\/, 15 BNA at 1814. It is undisputed that there were no formalizedprocedures for off-loading, and no one from Greenleaf did anything todetermine what procedures were being followed at Millennium in regard tooff-loading. In addition, Greenleaf\u2019s management realized that therewere two types of compressed air at Millennium and never took steps toinspect the off-loading area in order to anticipate hazards. Footnote (Tr. 75, 186-87,218, 221, 237, 457). The record is thus devoid of any measures taken toprevent the alleged violations. In the Sixth Circuit, where this case arose, \u201cthe Secretarymakes out a prima facie case of the employer\u2019s awareness of apotentially preventable hazard upon the introduction of proof of theemployer\u2019s failure to provide adequate safety equipment or to properlyinstruct its employees on necessary safety precautions….[A]n employer\u2018cannot fail to properly train and supervise its employees and then hidebehind its lack of knowledge concerning their dangerous workingpractices.\u2019\u201d\/Danis-Shook Joint Venture XXV v. Secretary of Labor, \/319F.3d 805, 811 (6^th Cir.2002), citing to \/A\/C Elec. Co. v. OSHRC\/, 956F.2d 530, 535 (6^th Cir. 1991). It is clear from the record thatGreenleaf did not properly train its employees, including Mr. Imrie, inconfined space entry procedures, and the lack of training is alsoapparent due to the fact that, at the time of the accident, Mr. Imriedid not have on a respirator or a harness; he also had no communicationequipment with him, and there was no ventilation equipment or alarmsystem in use. Footnote (Tr. 19, 45-51,57, 152-59, 161, 223-24). Another indication of Mr. Imrie\u2019s inadequatetraining was his lack of understanding of the consequences of usingnitrogen in the off-loading process. (Tr. 19, 110-11, 152-56). Further,management was aware that its permit-required confined space procedureswere not being used, and the evidence shows that employees wereencouraged not to follow those procedures. (Tr. 158-59, 162-63). For allof these reasons, and those in the preceding paragraph, the Secretaryhas demonstrated that Greenleaf had the requisite knowledge of thealleged violations.\/Serious Citation 1 – Item 2 – 29 C.F.R. 1910.146(c)(2)\/ This item alleges a violation of 29 C.F.R. 1910.146(c)(2),which provides as follows:If the workplace contains permit spaces, the employer shall informexposed employees, by posting danger signs or by any other equallyeffective means, of the existence and location of and the danger posedby the permit spaces. The Secretary alleges that employees were not informed of theconfined space hazards of Tank 174 by danger signs or other equallyeffective means. The standard requires that, once it is determined thata permit-required confined space exists, the employer is obligated toinform exposed employees by using a sign or some other effective meansof the existence and location of the permit space and the hazards itpresents. The record establishes that since 1994, Greenleaf hadprocedures stating that the slurry-transporting tanks werepermit-required confined spaces. On December 21, 2003, Tank 174 had ahazardous atmosphere consisting of 11 percent oxygen, and there were nosigns on the tank to inform employees of the danger posed by entry intothe tank. Footnote Moreover, CORivera\u2019s investigation and testimony adduced at the hearing revealedthat no signs had ever been posted on such tanks. (Tr.13, 306-08, 311,449, 458; Exh. C-12). Based on the foregoing, I find that the Secretary has provedthe alleged violation and that the violation was properly classified asserious. I agree with the CO\u2019s determination that the severity of theviolation was high and the probability of an accident occurring waslesser, and I conclude that the proposed penalty of $750.00 isappropriate. (Tr. 312-14.) This item is affirmed as a serious violation,and a penalty of $750.00 is assessed.\/Serious Citation 1 – Item 3 – 29 C.F.R. 1910.146(d)(4)(i)\/ This item alleges a violation of 29 C.F.R. 1910.146(d)(4)(i),which requires the employer to provide, maintain and ensure the use of\u201c[t]esting and monitoring equipment needed to comply with paragraph(d)(5) of this section.\u201d The Secretary alleges that the oxygen meter kept at the siteto monitor levels inside the tank trailors was not calibrated. Therecord clearly shows that Greenleaf had a Minigard 2 oxygen meter at itsfacility that was not properly maintained. At the time of theinspection, the meter had missing calibration hoses and the calibrationcylinder was not properly placed in the box. In addition, managementcould not provide any records to establish the meter had beencalibrated, and CO Rivera testified that when he asked Mr. Malensek toshow him how to calibrate the meter, Mr. Malensek was awkward and heldit upside down. (Tr. 315-18). Further, Mr. Malensek conceded at thehearing that neither he nor Mr. Imrie knew how to calibrate the meter,and Mr. Synder, the tank room lead man, testified that he did not knowhow to calibrate air monitoring equipment until January 2003 and that hehad not even known Greenleaf had such equipment. (Tr. 48-49, 260-61). As written, the standard requires the employer to maintainmonitoring equipment, and Greenleaf\u2019s own training materials recognizedthat monitoring devices should be tested and calibrated on a routinebasis to ensure accuracy. (Exh. C-15, pp. 15-16). The record plainlyestablishes the alleged violation, and I find that the violation wasproperly classified as serious. I agree with the CO\u2019s conclusion thatthe severity of the condition was high and the probability of anaccident was greater, and I find the proposed penalty of $1,500.00appropriate. (Tr. 312-14.) This item is therefore affirmed as a seriousviolation, and a penalty of $1,500.00 is assessed.\/Serious Citation 1 – Items 4a and 4b – 29 C.F.R. \u00a7\u00a71910.146(d)(4)(viii) and (d)(9)\/ Item 4a alleges a violation of 29 C.F.R.1910.146(d)(4)(viii),which requires the employer to provide, maintain and ensure the use of\u201c[r]escue and emergency equipment needed to comply with paragraph (d)(9)of this section, except to the extent that the equipment is provided byrescue services.\u201dItem 4b alleges a violation of 29 C.F.R. 1910.146(d)(9), which requiresthe employer to:Develop and implement procedures for summoning rescue and emergencyservices, for rescuing entrants from permit spaces, for providingnecessary emergency services to rescued employees, and for preventingunauthorized personnel from attempting a rescue. In Item 4a, the Secretary alleges that a body harness andsafety line were not used by an employee who entered Tank 174 forcleaning purposes on December 21, 2002. This standard requires theemployer to provide the equipment necessary for safe entry into andrescue from permit spaces, to maintain that equipment properly, and toensure its proper use by employees. 58 Fed. Reg. 4462, 4497 (1993).Paragraph (d)(9) requires the employer to implement procedures forrescuing entrants from permit spaces, and rescue equipment includes abody harness and a safety line so that, in case of an emergency, anentrant can be pulled out of the space efficiently and without the needfor others to enter the space. (Tr. 321). The record shows that Mr.Imrie did not wear a safety harness when he entered Tank 174 on December21, 2002. (Tr. 19, 224, 319). The record also shows that Greenleaf\u2019sLead Men Lane, Jeffers and Snyder had not worn harnesses and did nottrain any of their tank cleaners to wear them. (Tr. 45, 50, 57, 153).During the inspection, Mr. Malensek showed CO Rivera the two harnessesthat Greenleaf had; it appeared to the CO that one had been used andthat the other, which had no safety line, had never been used. (Tr. 320-21). Greenleaf contends that the standard merely requires theemployer to provide a harness and a safety line. (R. Post-Hearing Brief,p. 42). However, the standard clearly states not only that the employermust provide such equipment but that it must also \u201censure thatemployees\/use\/ that equipment.\u201d(Emphasis added). Greenleaf\u2019s contentionis rejected. Greenleaf also contends that Mr. Imrie was only asked toclean the tank from the outside and that he was not told to enter thetank on the morning of December 21, 2002. (R. Post-Hearing Brief, pp.31-33, 42). Mr. Malensek testified that he advised Mr. Imrie to justrinse the tank from the top so he would not have to worry about gettingdirty, as Mr. Imrie had to pick up his daughter in 30 minutes; Mr.Malensek also testified it would not have been possible to clean thetank in 30 minutes and that the \u201cpre-wash\u201d would have gotten a lot ofmaterial out of the tank without Mr. Imrie having to enter it. However,Mr. Malensek admitted he was not that familiar with tank cleaningprocedures then and that his instruction to \u201cpre-wash\u201d the tank was his\u201csuggestion\u201d to Mr. Imrie. (Tr. 247-49). Moreover, as the Secretarynotes, Mr. Jeffers, a person very familiar with the cleaning process,testified he had never cleaned a tank in that manner. (Tr. 159-60,169-70). Mr. Jeffers\u2019 testimony, as well as the fact that Mr. Imrie didget in the tank, casts serious doubt on Mr. Malensek\u2019s claimed\u201csuggestion.\u201d Footnote Regardless, evenif Mr. Malensek did tell him to rinse the tank from the top, it is clearthat Mr. Imrie would have had to get in the tank later that day tofinish cleaning it, at which time he would have been exposed to thehazardous atmosphere in the tank without the benefit of a harness andsafety line. Footnote (Tr. 235).Greenleaf\u2019s contention is rejected, and I find that the Secretary hasproved the alleged violation. I also find the violation was properlyclassified as serious. In Item 4b, the Secretary alleges that retrieval equipmentand respirators were not used and that emergency services were notsummoned until after entry was made when employees entered Tank 174 onDecember 21, 2002, to rescue a worker. The cited standard requires thatrescue procedures include procedures for summoning rescue and emergencyservices and for preventing unauthorized rescue (that is, rescue byemployees who are prohibited by the standard from performing thisfunction). 58 Fed. Reg. at 4501 (1993). Greenleaf\u2019s confined spaceprograms acknowledged these requirements. (Exhs. C-14, p. 7, C-15,p.12). The record shows that Mr. Herron and Mr. Malensek attempted torescue Mr. Imrie without retrieval equipment or respirators and withoutfollowing any emergency procedures, which exposed them to anoxygen-deficient atmosphere. (Tr. 14-15, 19, 223, 256). The record alsoshows that neither individual was familiar with procedures for rescuingentrants from permit spaces. (Tr. 223-24, 261-62). Furthermore, duringhis investigation, CO Rivera interviewed employees about rescueprocedures and found no one who was familiar with any procedures meetingthe standard\u2019s requirements; even Mr. Malensek could not clearlyarticulate any rescue procedures. Footnote (Tr. 322). I findthat the Secretary has proved the alleged violation and that this itemis properly classified as serious. Based on the foregoing, Items 4a and 4b are affirmed asserious violations. The items have been grouped for penalty purposes andthe total penalty proposed is $1,500.00. I agree with the CO\u2019sconclusion that the severity of the conditions was high and theprobability greater. (Tr. 321). I find the proposed penalty appropriate,and a total penalty of $1,500.00 is assessed for Items 4a and 4b.\/Serious Citation 1 – Item 5 – 29 C.F.R. 1910.146(g)(2)(ii)\/ Item 5 alleges a violation of 29 C.F.R. 1910.146(g)(2)(ii),which requires the employer to provide training to each affectedemployee \u201c[b]efore there is a change in assigned duties.\u201d The Secretary alleges that Greenleaf did not retrain Mr.Imrie upon his rehire on December 17, 2002. The record shows that Mr.Imrie was first hired in mid-May of 2002, that he was hired as a truckdriver, and that he received training in trucking and in confined spaceentries; specifically, he watched a film and took tests on trucking andpermit-required confined spaces, he received a manual about tank roommethods and procedures, and he was issued protective gear such as arespirator, rubber outerwear, and safety glasses and a face shield.Footnote Therecord further shows that Mr. Imrie left Greenleaf in June 2002 becausehe wanted to be a truck driver and did not want to clean tanks and thatwhen he was rehired in December 2002 he was hired as a truck driver.(Tr. 323-24; Exh. R-3). CO Rivera agreed that Mr. Imrie left Greenleafin June of 2002 because he wanted to be a driver and did not want toclean tanks but nonetheless concluded that Mr. Imrie had not cleanedtanks before his rehire in December 2002. (Tr. 323-24). Greenleaf,however, asserts that Mr. Imrie cleaned tanks in May 2002, that he leftbecause he wanted to be a driver, and that when he returned he was hiredas a driver but still had tank-cleaning duties; Greenleaf also assertsthat because Mr. Imrie\u2019s tank-cleaning duties did not change, the citedstandard does not apply. (R. Post-Hearing Brief, p. 44). The preamble to this standard indicates that training isrequired before there is a change in permit space operations thatpresents a hazard about which an employee has not previously beentrained. 58 Fed. Reg. at 4513. Based on the foregoing, I find that Mr.Imrie was trained in permit-required confined spaces in May of 2002 andthat he cleaned tanks before leaving Greenleaf in June 2002. Thisfinding is supported by the record and, in particular, by the CO\u2019s owntestimony; it is also supported by Mr. Snyder\u2019s testimony that he andMr. Imrie cleaned a tank together in December 2002 and that it was hisimpression that Mr. Imrie knew how to clean a tank better than he did.(Tr. 41, 50). Footnote I conclude thatthe Secretary has not shown that Mr. Imrie was assigned to clean tanksfor the first time upon returning to Greenleaf in December 2002, suchthat there was a change in his assigned duties within the meaning of thestandard. This item is vacated. Footnote\/Willful Citation 2 – Items 1a and 1b – 29 C.F.R. \u00a7\u00a7 1910.146(d)(3)(iv)and (d)(4)(ii)\/ Item 1a alleges a violation of 29 C.F.R. 1910.146(d)(3)(iv),which requires \u201c[p]urging, inerting, flushing, or ventilating the permitspace as necessary to eliminate or control atmospheric hazards.\u201d Item 1b alleges a violation of 29 C.F.R. 1910.146.(d)(4)(ii),which requires the employer to provide, maintain and ensure the use of\u201c[v]entilating equipment needed to obtain acceptable entry conditions.\u201d The Secretary alleges that Tank174 was not purged orventilated prior to entry on December 21, 2002, and that there was noequipment to ventilate Tank174 on December 21, 2002, when anoxygen-deficient atmosphere was present. The requirements for apermit-required confined space program include purging and ventilatingthe atmosphere of a space that is immediately dangerous to life andhealth to make it safe for employee entry. The record shows thatGreenleaf\u2019s confined space program and training materials had thisrequirement. (Exhs. C-12, p. 11, 16-17, C-15, p. 15). However, despitethis requirement, the record shows, and the parties have stipulated,that Greenleaf had no equipment to ventilate its permit-required tanktrailers, resulting in the oxygen-deficient atmosphere in Tank 174 notbeing eliminated before Mr. Imrie\u2019s entry on December 21, 2002. (Tr.19,45, 153, 261, 327; Stipulation of Fact No. 8). In addition, Mr. Snyderand Mr. Malensek were also exposed to the hazardous atmosphere in Tank174. In view of the record, I find that the Secretary has met her burdenof proving both of the alleged violations. The classification of Items1a and 1b, as well as the other alleged willful items, is set outfollowing the discussion with respect to Item 4 of Willful Citation 2\/Willful Citation 2 – Item 2 – 29 C.F.R. 1910.146(d)(5)(i)\/ This item alleges a violation of 29 C.F.R. 1910.146(d)(5)(i),which requires the employer to \u201c[t]est conditions in the permit space todetermine if acceptable entry conditions exist before entry isauthorized to begin.\u201d The Secretary alleges that no testing ofatmospheric conditions inside Tank 174 was conducted before entry onDecember 21, 2002. The record shows that the atmosphere inside Tank 174on the day of the accident was 11 percent oxygen; the record also showsthe tank was a permit-required confined space that had not beenreclassified as a non-permit space. Both management and employeesacknowledged that although an air monitor was present, no testing wasdone prior to December 21, 2002. (Tr. 45-50, 54, 152-53, 333-34).Furthermore, former employee Mr. Jeffers testified that he wasspecifically instructed by David Lane, his supervisor when he worked inthe tank room, to not test a tank\u2019s atmosphere before entry but, rather,to complete the entry permit by fabricating a number that was within theacceptable range and filling in the permit with that number. Footnote (Tr. 153,156-58). Based on the record, I find the Secretary has demonstrated thealleged violation.\/Willful Citation 2 – Item 3- 29 C.F.R. 1910.146(d)(6)\/ This item alleges a violation of 29 C.F.R. 1910.146(d)(6),which requires the employer to \u201c[p]rovide at least one attendant outsidethe permit space into which entry is authorized for the duration ofentry operations.\u201d Footnote The Secretaryalleges that on December 21, 2002, an employee entered Tank 174 andthere was no attendant available when entry was made. The recordestablishes that there was no attendant stationed outside of Tank 174 onthe day of the accident. Mr. Herron initially assisted Mr. Imrie inconnecting the hose going from the unloading valve on the tank to theholding tank, but he then left and joined Mr. Malensek in the office forcoffee. (Tr. 222, 251, 255-56). Moreover, Mr. Malensek conceded that hewould have been the attendant that day, but the record plainly showsthat he did not perform that function that day; Mr. Malensek alsoconceded that he knew the attendant requirement was not being followed.(Tr. 247, 256, 262). It is clear that had an attendant been present onthe day of the accident, a more expedient rescue could have occurred. Inview of the evidence of record, I find that the Secretary has met herburden of proving the alleged violation.\/Willful Citation 2 – Items 4a and 4b – 29 C.F.R. \u00a7\u00a7 1910.146(d)(10) and(e)(1)\/ Item 4a alleges a violation of 29 C.F.R. 1910.146(d)(10),which requires the employer to \u201c[d]evelop and implement a system for thepreparation, issuance, use, and cancellation of entry permits asrequired by this section.\u201d Item 4b alleges a violation of 29 C.F.R. 1910.146(e)(1),which requires the employer, before entry is authorized, to \u201cdocumentthe completion of measures required by paragraph (d)(3) of this sectionby preparing an entry permit.\u201d The Secretary alleges that on December 21, 2002, Greenleaffailed to implement a system for the preparation, issuance, use andcancellation of entry permits and that, consequently, no permitdocumenting that Tank 147 was safe for entry was prepared before Mr.Imrie entered the tank. The importance of the permit requirement is setout in the standard\u2019s preamble, which states that:The single most important feature of the permit system is the creationand use of an entry permit. An employer uses the permit to authorizeemployees to enter permit spaces and to document the measures taken toprotect authorized entrants from permit space hazards … you need toprepare a written permit system because that is the only way that youcan ensure that people have looked at the various hazards that exist andhave decided what has to be done or if nothing has to be done. If you donot provide a permit, it is left to the evaluation of the individual,and all of us, as people, can forget something. 58 Fed. Reg. at 4506. It is clear from the record that while Greenleaf had aprogram that addressed the completion of entry permits, the companyfailed to effectively implement the system outlined in the program. (Tr.338-40). Mr. Snyder testified that he did not fill out any permitsbefore the accident, including the occasion when he entered a tank withMr. Imrie, at which time he was his supervisor. (Tr. 48-50). Mr. Jefferstestified that he completed permits but that the permits were falsified;he further testified that he was instructed to do so by his supervisorduring training. (Tr. 156-58). Footnote In addition, theparties stipulated that no permit was completed before Mr. Imrie\u2019s entryinto the tank on December 21, 2002. (Stipulation of Fact No. 6). Basedon the foregoing, I conclude that the Secretary has established both ofthe alleged violations.\/The Classification of Items 1-4 of Willful Citation 2\/ The foregoing violations have been classified as serious andwillful. The violations were clearly serious, in light of Mr. Imrie\u2019saccident. As to the willful classification, the Commission has defined awillful violation as one committed \u201cwith intentional, knowing orvoluntary disregard for the requirements of the Act or with plainindifference to employee safety.\u201d \/Williams Enter., Inc.,\/ 13 BNA OSHC1249, 1256 (No. 85-355, 1987). \/See also American Wrecking Corp. v.Secretary of Labor,\/ 351 F.3d 1254, 1262 (D.C. Cir. 2003); \/WesternWaterproofing Co., Inc. v. Marshall,\/ 576 F.2d 139, 142 (8th Cir. 1978).\u201cThe Secretary must show that the employer was actually aware, at thetime of the violative act, that the act was unlawful, or that itpossessed a state of mind such that if it were informed of the standard,it would not care.\u201d \/Propellex Corp.,\/ 18 BNA OSHC 1677, 1684 (No.96-0265, 1999) (citations omitted). The Sixth Circuit, where this casearose, has held that \u201ca willful violation is action \u2018taken knowledgeablyby one subject to the statutory provisions in disregard of the action\u2019slegality.\u2019\u201d \/National Engineering & Contracting Co. v. Herman\/, 181 F.3d715, 721 (6^th Cir. 1999) (citation omitted). The Sixth Circuit has alsoheld that a willful violation occurs where the employer is \u201cconscious\u201dof the requirements of a rule and \u201cnonetheless … consciouslycontinues\u201d in its contrary practice. \/Donovan v. Capital City ExcavatingCo., \/712 F.2d 1008, 1010 (6th Cir. 1983). I find that the record demonstrates that Greenleaf was awareof the OSHA standards prohibiting the cited conduct and that itconsciously disregarded those standards. Greenleaf\u2019s comprehensivepermit-required confined space program and training materials, developedin 1994, set out procedures that were in compliance with OSHA\u2019spermit-required confined spaces standard. Footnote The confinedspace hazard analysis that Charles performed identified Greenleaf\u2019sslurry-transporting tank trailers as permit-required confined spacesbecause of the potential for atmospheric hazards. \/See\/ Exh. C-12, pp.9-11. There is no credible evidence that these tanks were everreclassified, and the record shows that employees continued to betrained in the requirements of the standard. Moreover, managementacknowledged that it was aware of the provisions in its program and thatemployees were being trained in those provisions. Despite thisknowledge, and for no articulated reason, Greenleaf ignored its ownprogram and failed to implement the practices and procedures that wouldhave protected its employees from the hazards of entry intopermit-required confined spaces. (Tr. 45-59, 152-54, 158-63, 223, 229,232, 247, 265; Exhs. C-8, C-9, C-12, C-14, C-15). Management\u2019s conscious disregard was demonstrated by thespecific testimony of Mr. Snyder and Mr. Malensek. Mr. Snyder, forexample, acknowledged that he was trained to stay outside the tank whileMr. Imrie cleaned it but that he did not do it that way. (Tr. 57). Mr.Malensek testified that he was aware that the company had a confinedspace program, and he conceded that the program classified theslurry-transporting tank trailers as permit-required spaces; however, hethen said such tanks were considered non-permit spaces, but he offeredno explanation in that regard. (Tr. 231-32). Mr. Malensek also testifiedthat he knew the company was not fully following the J.J. Kellerpamphlet the entire time he was a supervisor; he said he did not makethat decision, noting that it was the general practice not to follow thematerials, and that he just allowed it to continue. (Tr. 262-63). TheCommission has recognized that an employer\u2019s failure to follow its ownsafety program and the recommendations of a safety consultant canestablish a willful violation. Footnote \/Morrison-KnudsenCo., Inc.\/, 16 BNA OSHC 1105 (No. 88-572, 1993). Based on the facts of this case and the foregoing Commissionprecedent, I find that all of the items set out in Citation 2(specifically, Items 1a, 1b, 2, 3, 4a and 4b) are properly classified aswillful violations. These items are consequently affirmed as willfulviolations.\/Penalty Assessment for Items 1-4 of Citation 2\/ The Secretary has proposed a penalty of $28,000.00 each forItems 1 through 4 of Citation 2. Footnote I agree with theCO\u2019s conclusion that the severity of these violations was high and thatthe probability of an accident occurring was greater, particularly inview of Mr. Imrie\u2019s death. (Tr. 329-39). I also find appropriate theproposed penalty of $28,000.00 for each of these items. A penalty of$28,000.00 each is accordingly assessed for Items 1 through 4 ofCitation 2. Footnote \/\u201cOther\u201d Citation 3 – Item 1 – 29 C.F.R. 1910.146(d)(12)\/ This item alleges a violation of 29 C.F.R. 1910.146(d)(12),which requires the employer to \u201c[d]evelop and implement procedures …necessary for concluding the entry after entry operations have beencompleted.\u201d The Secretary alleges that Greenleaf violated the citedstandard because it did not have any procedures in place for concludingentry into the tank trailers. In this regard, the preamble to thestandard states as follows:The cancellation of the permit would alert the employer to take theappropriate measures for the shut down of the space, the closing of theentry portal, and the return of the space to normal operatingconditions. Without these procedures, employees would be exposed to suchhazards as being locked inside the space, accidentally entering thespace, and possible fire or explosion when the space is returned to itsnormal operating mode….[Additionally] the standard ensures the orderlytransition between periods when entry is authorized and periods whenentry is not authorized.58 Fed. Reg. at 4501. The conclusion of an entry permit also ensuresthat, should an employee leave a permit space and return, a new permitis completed to verify that conditions are still safe. The undisputedevidence of record establishes that there are no dates on Greenleaf\u2019sentry permits that indicate that the permits have been concluded. (Tr.342-44; Exh. C-18). Based on the foregoing, the Secretary has met her burden ofproving the alleged violation. This citation item is therefore affirmed.As to the classification of this item, an \u201cother\u201d violation is one thathas a direct and immediate relationship between the violative conditionand occupational safety; however, unlike a serious violation, theprobability of death or serious physical injury does not exist. I findthat this item is properly classified as \u201cother,\u201d and it is accordinglyaffirmed as such. No penalty was proposed for this item, and none isassessed..\/Findings of Fact and Conclusions of Law\/ The foregoing decision constitutes my findings of fact andconclusions of law in accordance with Federal Rule of Civil Procedure 52(a).\/ORDER\/ Based upon the foregoing, it is hereby ORDERED that: 1. Item 1 of Citation 1 is AFFIRMED as a serious violation,and a penalty of $1,500.00 is assessed. 2. Item 2 of Citation 1 is AFFIRMED as a serious violation,and a penalty of $750.00 is assessed. 3. Item 3 of Citation 1 is AFFIRMED as a serious violation,and a penalty of $1,500.00 is assessed. 4. Item 4 of Citation 1 is AFFIRMED as a serious violation,and a penalty of $1,500.00 is assessed. 5. Item 5 of Citation 1 is VACATED. 6. Item 1 of Citation 2 is AFFIRMED as a willful violation,and a penalty of $28,000.00 is assessed. 7. Item 2 of Citation 2 is AFFIRMED as a willful violation,and a penalty of $28,000.00 is assessed. 8. Item 3 of Citation 2 is AFFIRMED as a willful violation,and a penalty of $28,000.00 is assessed. 9. Item 4 of Citation 2 is AFFIRMED as a willful violation,and a penalty of $28,000.00 is assessed. 10. Item 1 of Citation 3 is AFFIRMED as an other-than-seriousviolation, and no penalty is assessed. \/s\/ CovetteRooney Judge,OSHRC Dated: June 21, 2004 Washington, D.C.”