“Docket No. 79-4802 SECRETARY OF LABOR,v.MOBIL OIL CORPORATION,RespondentDocket No. 79-4802DECISIONBefore: ROWLAND, Chairman; CLEARY, Commissioner.BY THE COMMISSION:The issue in this case is whether a pit guarding violation committed by Mobil OilCorporation at its Paulsboro, New Jersey refinery was willful. Administrative Law JudgeDavid G. Oringer found that Mobil Oil violated 29 C.F.R. ? 1910.22(c)[[1]] by leaving asix-foot gap in a wall which the company had constructed around an open pit containingrefinery by-products called \”wax.\” However, Judge Oringer declined tocharacterize the violation as willful. Among other things, he found that the supervisor incharge of the wax pit had taken a significant measure for the protection of the employeesby initiating the project to construct the wall and that this supervisor’s failure toassure that the wall was completed was \”poor judgement,\” but not the type ofdisregard for employee safety which demonstrates willful conduct. For the followingreasons,we affirm the judge’s decision. [[2]]To establish that a violation was willful, the Secretary of Labor must prove that theviolation was committed with intentional disregard of or plain indifference to thestatutory requirements for employee safety. A. Schonbek & Co. v. Donovan, 646 F.2d 799(2d Cir. 1981); Kus-Tum Builders, 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 to show a lack ofdiligence or carelessness. See St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 849 (8thCir. 1981) (violation not willful because, although it was \”clear in hindsight thatsome risk remained,\” the employer’s conduct toward protecting its employees from theknown hazard fell \”short of plain indifference). Where the record reveals that theemployer who knew of the hazardous condition took some precautions, even though notentirely effective or complete precautions, to protect the employees, the employer’sconduct lacks the element of intentional disregard or plain indifference characterizingwillful conduct. See St. Joe Minerals Corp. v. OSHRC, supra; Stone & WebsterEngineering Corp., 80 OSAHRC 72\/D11, 8 BNA OSHC 1753, 1980 CCH OSHD ? 24,646 (No. 15314,1980), appeal withdrawn, No. 80-1605 (1ST Cir. Sept. 25, 1980); William Enterprises, Inc.,79 OSAHRC 24\/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD ? 21,071 (No. 4533, 1976); see alsoChesapeake Operating Co., 82 OSAHRC 36\/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, on the basis of therecord as a whole, the employer did not intentionally disregard and was not plainlyindifferent to the statutory requirements.)The record in this case reveals that the supervisor in charge of the wax pit decided thata wall should be built around it to replace an existing, old and unsafe guardrail and toeliminate slippery conditions along the edges of the pit due to wax overflows. Therefore,this supervisor presented a request to the appropriate Mobil Oil manager for constructionof the wall. The company hired a contractor who completed the wall except for the six-footgap an one side. The gap remained because of a cost overrun. When the pit supervisor wastold that the wall construction project had come to an end because of the cost overrun,the supervisor submitted another request to the appropriate Mobil Oil manager, this timefor another contract to complete the wall. However, the request was denied because MobilOil was investigating a number of its contracts with the particular contractor, all ofwhich involved cost overruns. When the pit supervisor learned that his second request wasdenied, he did not press the matter, but he took some precautions to protect employeesworking near the gap. Once every one or two weeks, one employee was required to go to theedge of the pit to operate 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 onlyabout 110 degrees Fahrenheit. Also, at intervals of about a week, an employee had tooperate a water valve located about four or five feet from the edge of the pit near thegap 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 in the wall. The pitsupervisor instructed the employees to be careful of the wax at the gap, and he installedropes when inexperienced summer employees were doing the work near the gap.In view of the pit supervisor’s action in initiating the project to build the wall, inrequesting after construction had been halted that the wall be completed, and in takingsome precautions to protect employees working near the gap, the violation was not willful.That the supervisor’s measures were not as effective or complete as conceivable cannot bedisputed, but they do not show indifference to employee safety, particularly since therewas infrequent exposure and moderate hazard. In light of the evidence, we conclude thatthe Secretary failed to demonstrate that the supervisor and Mobil Oil intentionallydisregarded or were plainly indifferent to employee safety. Accordingly, we affirm thejudge’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 in this format. Toobtain a copy of this document, please request one from our Public Information Office Bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] 29 C.F.R. ? 1910.22(c) pertains to walking and working surfaces and provides:? 1910.22 General requirements* * *(c) Covers and quardrails. Covers and\/or guardrails shall be provided to protect personnelfrom the hazards of open pits, tanks, vats, ditches, etc.[[2]] The judge found that the violation was serious as defined by section 17(k), 29U.S.C. ? 666(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678,and assessed a penalty of $1,000. On review neither party disputes the finding of aserious violation or that $1,000 is an appropriate penalty if the violation is not foundto be willful.”