“SECRETARY OF LABOR,v.MOBIL OIL CORPORATION,RespondentDocket No. 79-4802_DECISION_Before: ROWLAND, Chairman; CLEARY, Commissioner.BY THE COMMISSION:The issue in this case is whether a pit guarding violation committed byMobil Oil Corporation at its Paulsboro, New Jersey refinery was willful.Administrative Law Judge David G. Oringer found that Mobil Oil violated29 C.F.R. ? 1910.22(c)[[1]] by leaving a six-foot gap in a wall whichthe company had constructed around an open pit containing refineryby-products called \”wax.\” However, Judge Oringer declined tocharacterize the violation as willful. Among other things, he found thatthe supervisor in charge of the wax pit had taken a significant measurefor the protection of the employees by initiating the project toconstruct the wall and that this supervisor’s failure to assure that thewall was completed was \”poor judgement,\” but not the type of disregardfor employee safety which demonstrates willful conduct. For thefollowing reasons,we affirm the judge’s decision. [[2]]To establish that a violation was willful, the Secretary of Labor mustprove that the violation was committed with intentional disregard of orplain indifference to the statutory requirements for employee safety. A.Schonbek & Co. v. Donovan, 646 F.2d 799 (2d Cir. 1981); Kus-TumBuilders, Inc., 81 OSAHRC 97\/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ?25,738 (No. 76-2644, 1981). It is not enough for the Secretary simply toshow a lack of diligence or carelessness. See St. Joe Minerals Corp. v.OSHRC, 647 F.2d 840, 849 (8th Cir. 1981) (violation not willful because,although it was \”clear in hindsight that some risk remained,\” theemployer’s conduct toward protecting its employees from the known hazardfell \”short of plain indifference). Where the record reveals that theemployer who knew of the hazardous condition took some precautions, eventhough not entirely effective or complete precautions, to protect theemployees, the employer’s conduct lacks the element of intentionaldisregard or plain indifference characterizing willful conduct. See St.Joe Minerals Corp. v. OSHRC, supra; Stone & Webster Engineering Corp.,80 OSAHRC 72\/D11, 8 BNA OSHC 1753, 1980 CCH OSHD ? 24,646 (No. 15314,1980), appeal withdrawn, No. 80-1605 (1ST Cir. Sept. 25, 1980); WilliamEnterprises, Inc., 79 OSAHRC 24\/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD ?21,071 (No. 4533, 1976); see also Chesapeake Operating Co., 82 OSAHRC36\/C9, 10 BNA OSHC 1790, 1982 CCH OSHC ? 26,142 (No. 78- 1353, 1982)(although the employer might have taken greater precautions, such aschecking an employee’s work record before making him a supervisor, onthe basis of the record as a whole, the employer did not intentionallydisregard and was not plainly indifferent to the statutory requirements.)The record in this case reveals that the supervisor in charge of the waxpit decided that a wall should be built around it to replace anexisting, old and unsafe guardrail and to eliminate slippery conditionsalong the edges of the pit due to wax overflows. Therefore, thissupervisor presented a request to the appropriate Mobil Oil manager forconstruction of the wall. The company hired a contractor who completedthe wall except for the six-foot gap an one side. The gap remainedbecause of a cost overrun. When the pit supervisor was told that thewall construction project had come to an end because of the costoverrun, the supervisor submitted another request to the appropriateMobil Oil manager, this time for another contract to complete the wall.However, the request was denied because Mobil Oil was investigating anumber of its contracts with the particular contractor, all of whichinvolved cost overruns. When the pit supervisor learned that his secondrequest was denied, he did not press the matter, but he took someprecautions to protect employees working near the gap. Once every one ortwo weeks, one employee was required to go to the edge of the pit tooperate a valve for pumping out the pit. The depth of the pit near thegap was about two to three feet and, when the pump valve was operated,the wax was only about 110 degrees Fahrenheit. Also, at intervals ofabout a week, an employee had to operate a water valve located aboutfour or five feet from the edge of the pit near the gap in the wall.Both of these employees had to work on or walk across surfaces madeslippery with wax which had overflowed from the pit through the gap inthe wall. The pit supervisor instructed the employees to be careful ofthe wax at the gap, and he installed ropes when inexperienced summeremployees were doing the work near the gap.In view of the pit supervisor’s action in initiating the project tobuild the wall, in requesting after construction had been halted thatthe wall be completed, and in taking some precautions to protectemployees working near the gap, the violation was not willful. That thesupervisor’s measures were not as effective or complete as conceivablecannot be disputed, but they do not show indifference to employeesafety, particularly since there was infrequent exposure and moderatehazard. In light of the evidence, we conclude that the Secretary failedto demonstrate that the supervisor and Mobil Oil intentionallydisregarded or were plainly indifferent to employee safety. Accordingly,we affirm the judge’s decision. SO ORDERED.FOR THE COMMISSIONRay H. Darling, JR.EXECUTIVE SECRETARYDATED: OCT 28 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] 29 C.F.R. ? 1910.22(c) pertains to walking and working surfacesand provides:? 1910.22 General requirements* * *(c) Covers and quardrails. Covers and\/or guardrails shall be provided toprotect personnel from the hazards of open pits, tanks, vats, ditches, etc.[[2]] The judge found that the violation was serious as defined bysection 17(k), 29 U.S.C. ? 666(i), of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ? 651-678, and assessed a penalty of $1,000. Onreview neither party disputes the finding of a serious violation or that$1,000 is an appropriate penalty if the violation is not found to bewillful.”