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Steffenson, Esquire, U.S. Department of Labor, Office of the Solicitor,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAtlanta, Georgia\t\t\t\t\t\t\t\t\t\tFor the Secretary\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0David Bondanza, Esquire,\t\t\t\t\t\tThe Lane Construction, Atlanta, Georgia\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0\u00a0\u00a0For the Respondent\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tBEFORE:\u00a0\u00a0Administrative Law Judge Sharon D. Calhoun\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0On the night of September 9, 2015,\t\t\t\t\t\ta truck driver operating a dump truck in reverse struck and killed a superintendent of The\t\t\t\t\t\tLane Construction Corporation (Lane). Lane\u2019s employees were in the process of\t\t\t\t\t\tmilling and repaving a section of Veterans Expressway in Tampa, Florida. Following a fatality investigation conducted by the Occupational Safety and Health Administration, the Secretary issued a Citation and Notification of Penalty to Lane on March 7, 2016, alleging, in\t\t\t\t\t\tItem 1, a serious violation of the general duty clause, \u00a7 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. \u00a7\u00a7 651-678 (Act). The Secretary alleges Lane exposed its employees to struck-by hazards by failing to implement an Internal Traffic Control Plan\t\t\t\t\t\t(ITCP)\t\t\t\t\t\tor some other method to maximize separation between pedestrians and moving vehicles. The Secretary proposed a penalty of $7,000.00 for the alleged violation.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0Lane timely contested the Citation. The Court held a hearing in this matter on February 9 and 10, 2017, in Clearwater, Florida. The parties filed briefs on April 3, 2017. For the reasons that follow, the Court\t\t\t\t\t\tVACATES\t\t\t\t\t\tItem 1 and assesses no penalty.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tJURISDICTION AND COVERAGE\t\t\t\t\t\t\t\t\t\tLane\t\t\t\t\t\ttimely contested the Citation and Notification of Penalty on\t\t\t\t\t\tMarch 8, 2016. The parties stipulate the Commission has jurisdiction over this action and\t\t\t\t\t\tLane\t\t\t\t\t\tis a covered business under the\t\t\t\t\t\tAct\t\t\t\t\t\t(Tr.\t\t\t\t\t\t10). Based on the parties’ stipulations and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under \u00a7 10(c) of the\t\t\t\t\t\tAct\t\t\t\t\t\tand\t\t\t\t\t\tLane\t\t\t\t\t\tis a covered employer under \u00a7 3(5) of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBACKGROUND\t\t\t\t\t\t\t\t\t\tThe Accident\u00a0\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0In 2013, the Florida Department of Transportation awarded\t\t\t\t\t\tAstaldi Construction Corporation, a general contractor, a contract to\t\t\t\t\t\twiden\t\t\t\t\t\tVeterans Expressway in Hillsborough County, Florida\t\t\t\t\t\t(Exh. C-4). Astaldi hired Lane to perform milling\t\t\t\t\t\t(grinding up the old asphalt)\t\t\t\t\t\tand repaving work\t\t\t\t\t\tfor the project. Lane hired Cordova\t\t\t\t\t\tTransport, Inc., to provide dump trucks\t\t\t\t\t\tto haul away the milled asphalt\t\t\t\t\t\tfor the operation. Cordova Transport subcontracted with OB Trucking to provide drivers for the dump trucks (Tr. 357-358). The night of the accident, Lane had been working\t\t\t\t\t\tsporadically on\t\t\t\t\t\tthe project for approximately one\t\t\t\t\t\tyear (Tr. 25-26).\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0On the night of September 9, 2015, Lane was in the process of milling the northbound lane\t\t\t\t\t\ton a section of Veterans Expressway\t\t\t\t\t\tsouth of a bridge that crosses\t\t\t\t\t\tHillsborough Avenue. The\t\t\t\t\t\tfar-right\t\t\t\t\t\tnorthbound lane was closed with cones dividing it from the one remaining active lane of traffic (Tr. 41). Astaldi had responsibility for the Temporary Traffic Control Plan with regard to public traffic (Tr. 68). There was a concrete barrier\t\t\t\t\t\twall\t\t\t\t\t\t(known as a Jersey barrier) located on the\t\t\t\t\t\tfar-right\t\t\t\t\t\tside of the closed lane, placed there to protect non-Lane employees on the other side engaged in bridge work (Tr. 40-42). The dump trucks were staged on the Hillsborough Avenue Bridge, from where they would\t\t\t\t\t\tbe\t\t\t\t\t\tdriven in reverse to the milling machine under the direction of Lane\u2019s designated spotter (Tr. 35).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe roadway was 12 feet wide. Lane\u2019s milling machine was 7 feet wide, so Lane needed to make two passes with the milling machine on each section of the roadway to\t\t\t\t\t\tcomplete\t\t\t\t\t\tthe\t\t\t\t\t\tmilling\t\t\t\t\t\tprocess. The total\t\t\t\t\t\toperation area was\t\t\t\t\t\tapproximately 1,000 feet long (Exh. R-1, pp. 2, 4; Tr. 25-27).1 Daniel Estry, Lane\u2019s senior safety supervisor, explained how the milling machine and the dump trucks operated together.\t\t\t\t\t\t\t\t\t\tThe mill machine is a large machine that grinds up the asphalt and it goes on a conveyor and it\u2019s thrown into a dump truck. From there, it\u2019s hauled back to wherever the destination might be. And then, oftentimes, they haul the asphalt back to the plant, they unload, they wash out their truck, they\u2019ve put in new asphalt, and then that is brought out to the jobsite where it gets in the paver. And the asphalt is dumped into a paver and it\u2019s spread on the roadway.\t\t\t\t\t\t\t\t\t\t(Tr. 27)\t\t\t\t\t\t\t\t\t\tFollowing the milling machine\t\t\t\t\t\twas\t\t\t\t\t\ta broom tractor that sweeps the underlying asphalt \u201cso that the surface is clean enough so that the liquid asphalt will stick to it.\u201d (Tr. 33) The paving crew must \u201clay a layer of liquid asphalt that\u2019s called tack. And that causes it to adhere to the old asphalt.\u201d (Tr. 33)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tLane had two employees working on the milling operation: the\t\t\t\t\t\tmill\t\t\t\t\t\toperator and the\t\t\t\t\t\tspotter, leadman Travis Grimes (Tr. 128-129).\t\t\t\t\tGrimes\u2019s job was to signal to the truck drivers to back their dump trucks from the staging area to the milling machine. Using a lighted wand, he\t\t\t\t\t\twould signal the\t\t\t\t\t\tnext truck driver\t\t\t\t\t\tin line\t\t\t\t\t\tto back up and\t\t\t\t\t\the would spot the truck as it did so. Once the truck was backed up to the milling machine and stopped, Grimes would cease his spotting duties and\t\t\t\t\t\tturn to the milling machine to\t\t\t\t\t\tmake adjustments\t\t\t\t\t\tso the milled asphalt could be deposited in the dump truck.\t\t\t\t\t\tAfter the dump truck was filled with the milled asphalt, the driver would\t\t\t\t\t\tdrive the truck away from the milling machine\t\t\t\t\t\tand Grimes would resume his spotting duties and signal for the next truck to back up. This process occurred multiple times\t\t\t\t\t\t(Tr.\t\t\t\t\t\t34-36,\t\t\t\t\t\t58, 129-130,\t\t\t\t\t\t361-362).\t\t\t\t\t\t\t\t\t\tAt 11:04 p.m. on September 9, 2015, Lane\u2019s Superintendent texted\t\t\t\t\t\tMiguel\t\t\t\t\t\tCordova,\t\t\t\t\t\towner of Cordova Transport,\t\t\t\t\t\twho was in the staging area with the dump trucks, to tell him one of the vehicles was leaking motor oil on the roadway. He believed it was coming from one of the dump trucks supplied by Cordova Transport. Cordova texted\t\t\t\t\t\tin response\t\t\t\t\t\the was on his way and he proceeded to walk south passed Hillsborough Avenue, where he met Lane\u2019s Superintendent and Dwayne Ludwig, recently hired by Lane\t\t\t\t\t\tto replace the\t\t\t\t\t\tSuperintendent, who planned to\t\t\t\t\t\trelocate for\t\t\t\t\t\ta new job soon. It was Ludwig\u2019s first night on the job\t\t\t\t\t\tand the Superintendent was training him. As the three men walked south on the roadway,\t\t\t\t\t\tby the light of their cell phones\t\t\t\t\t\tthey observed drips of motor oil on the surface that had been milled. The Superintendent, who was talking on his cell phone\t\t\t\t\t\tto another Lane manager\t\t\t\t\t\tas they walked, pointed out the oil spots to Cordova. At some point, the Superintendent stopped walking\t\t\t\t\t\tand stood still as he talked on his phone. Cordova and Ludwig continued walking the length of the operation to the milling machine\t\t\t\t\t\t(Tr. 185-187, 202-203, 314-315). \u201cAll employees, including [the Superintendent] were wearing a high visibility vest adequate for night operations.\u201d (Exh. R-1, OSHA Inspection\t\t\t\t\t\tNarrative, p. 5)\u00a0\u00a0\t\t\t\t\t\t\t\t\t\tWhen Cordova and Ludwig arrived at the milling machine, they ascertained that the oil drops had not come from any of the dump trucks, but were from Lane\u2019s broom tractor. Cordova and Ludwig started walking north again and met with the Superintendent, who was still talking on his phone (Tr.\t\t\t\t\t\t188-190).\t\t\t\t\tAt this point, Cordova held up his lighted cell phone and waved it, hoping to attract the attention of the driver of the next staged truck (Tr. 214). Cordova and Ludwig\t\t\t\t\t\tleft the Superintendent where he stood talking and moved over to the Jersey barricade nearby (Tr. 300-301).2\t\t\t\t\tAs they waited, Cordova left Ludwig\t\t\t\t\t\t\u201cand ran out\u201d to the\t\t\t\t\t\tdriver\u2019s side\t\t\t\t\t\tof the next truck in line at the staging area (Tr. 300). Cordova yelled to the driver and attempted to use his cell phone to signal him, but failed to attract his attention on the noisy worksite. The driver, a nephew of the owner of OB Trucking, had only recently obtained his commercial license. His girlfriend was sitting\t\t\t\t\t\tnext to him\t\t\t\t\t\ton the passenger side\t\t\t\t\t\tof the truck\u2019s cab\t\t\t\t\t\t(Tr. 258-259). Cordova told the driver \u201che needs to get rid of that person off the truck.\u201d (Tr. 204)\t\t\t\t\t\tCordova stated, \u201cI keep screaming and signal him with my phone.\u201d (Tr. 256) \u201cAnd I said, \u2018Hey, don\u2019t you [expletive], I\u2019m sorry my language, but that\u2019s what I said, hey, don\u2019t you [expletive] see me?\u2019 And I\u2019m waving a wand\t\t\t\t\t\t[sic]\t\t\t\t\t\tand standing in the back. \u201cBack up.\u2019\u201d (Tr. 258)3\t\t\t\t\t\tThe driver started backing up his truck. In the side mirrors of the truck, he could see the lights of the milling machine approximately 1,000 feet behind him. The backup alarm was functioning. The truck was traveling between\t\t\t\t\t\t3 and 5 miles per hour. After traveling\t\t\t\t\t\ta short distance, the driver felt a bump, which he attributed to the roughened asphalt left by the milling operation. He only realized he had backed over a person when he saw the body of the Superintendent in front of the truck (Exh. R-1, p. 5).\t\t\t\t\t\t\t\t\t\tLane\u2019s Safety Program\t\t\t\t\t\t\t\t\t\tCompliance Safety and Health Officer (CSHO) Linette Pruna Padilla conducted the fatality inspection in this case (Tr. 330). She acknowledged Lane had a written safety program that included backing and spotting safety procedures for its employees, but stated, \u201cIn this particular worksite, Lane had not followed some of their rules.\u201d (Tr. 345)\t\t\t\t\t\t\t\t\t\tLane\u2019s written safety program requires its employees to follow these relevant rules:\t\t\t\t\t\t\t\t\t\tWorkers on Foot\t\t\t\t\t\t\t\t\t\tDo not walk close behind a covered vehicle that is backing up and stay a safe distance around the vehicle in view of the driver at all times.\t\t\t\t\t\t\t\t\t\tDo not distract the designated spotter or act as another spotter which causes confusion. A separate spotter can be used\t\t\t\t\t\tfor the sole purpose of watching overhead power lines.\t\t\t\t\t\t\t\t\t\t*\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t* *\t\t\t\t\t\t\t\t\t\tTraining\t\t\t\t\t\t\t\t\t\tEmployees will receive training at new hire orientation.\t\t\t\t\t\t\t\t\t\tCommunication will be established between subcontractor drivers and designated spotters on site to determine agreed upon procedures.\t\t\t\t\t\t\t\t\t\tInternal Traffic Control Plans\t\t\t\t\t\t\t\t\t\tSupervisors or project managers can incorporate plans in their daily JHA (Job Hazard Analysis) to address the flow of moving equipment, workers on foot, and vehicles at a worksite to minimize or eliminate vehicles and employees from crossing paths. These plans can significantly reduce or possibly eliminate the need for vehicles to back up on a site.\t\t\t\t\t\t\t\t\t\tSpotter Procedures\t\t\t\t\t\t\t\t\t\tSpotters should meet with new drivers and agree on hand signals and emergency alerts\t\t\t\t\t\tbefore\t\t\t\t\t\tbacking up and will remind drivers of their responsibility to stop backing up immediately if they lose sight of the spotter.\t\t\t\t\t\t\t\t\t\tSpotters will always maintain visual contact with the driver while the vehicle is backing.\t\t\t\t\t\t\t\t\t\t(Exh. C-9, pp. 3-4)\t\t\t\t\t\t\t\t\t\tCSHO Pruna Padilla testified Lane had rules for \u201cbackup guidelines and the spotter, so they do have rules that can maximize this separation, but I didn\u2019t see they were followed. \u2026 [I]f they were followed, yes, that can definitely reduce the hazard.\u201d (Tr. 345) \t\t\t\t\t\t\t\t\t\tCITATION NO. 1\t\t\t\t\t\t\t\t\t\tThe Secretary\u2019s Burden of Proof\t\t\t\t\t\t\t\t\t\tTo prove a general duty clause violation, the Secretary must establish that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.\t\t\t\t\t\tArcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). He must also prove that the employer had knowledge of the hazardous condition.\t\t\t\t\t\tBurford\u2019s Tree, Inc., 22 BNA OSHC 1948, 1950 (No. 07-1899, 2010),\t\t\t\t\t\taff\u2019d, 413 F. App\u2019x 222 (11th\t\t\t\t\t\tCir. 2011) (unpublished).\t\t\t\t\t\t\t\t\t\tS. J. Louis Constr.\t\t\t\t\t\tof Texas, 25\t\t\t\t\t\tBNA OSHC\t\t\t\t\t\t1892, 1894\t\t\t\t\t\t(No.\t\t\t\t\t\t12-1045, 2016).\t\t\t\t\t\t\t\t\t\tItem 1: Alleged Serious Violation of \u00a7\t\t\t\t\t\t5(a)(1)\t\t\t\t\t\t\t\t\t\tItem 1 of Citation No. 1 alleges,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe employer did not furnish\t\t\t\t\t\temployment\t\t\t\t\t\tand a place of employment which were free from recognized hazards that were causing or\t\t\t\t\t\tlikely to cause death or serious physical harm to employees in that employees were exposed to the hazard of being struck by vehicular traffic inside a work zone:\t\t\t\t\t\t\t\t\t\ta)At the work area on Northbound Veterans Expressway (SR 589), south of Hillsborough Avenue in Tampa, Florida, on or about 09\/09\/2015, an employee who was talking on his cell phone and walking in the work zone area was struck by a dump truck.\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAmong other methods, one feasible and acceptable method of abatement is for the employer to:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\ta)Develop and implement an internal traffic control plan for inside the work areas to minimize backing and other conflicts between employees and work vehicles\/equipment and to maximize the separation of vehicles and pedestrians. (Reference ANSI\/ASSE A10.47-2015, Work Zone Safety for Highway Construction, Section 6.4.)\t\t\t\t\t\t\tb)Develop and implement a site-specific safety plan for safe employee access to and egress from the work area, whether driving or walking. (Reference\t\t\t\t\tANSI\/ASSE A10.47-2015, Work Zone Safety for Highway\t\t\t\t\tConstruction, Section\t\t\t\t\t6.5.)4\t\t\t\t\t\t\tc)Communicate the details of the site specific safety plan and internal traffic control plan to all employees onsite and all vehicle operators entering the site. (Reference ANSI\/ASSE A10.47-2015, Work Zone Safety for Highway Construction, Section 6.4.1.)\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAn Activity in the Worksite Presented a Hazard\t\t\t\t\t\t\t\t\t\tThere is no dispute that\t\t\t\t\t\tLane\u2019s Superintendent\t\t\t\t\t\twas struck and killed\t\t\t\t\t\tby a dump truck driven by an OB Trucking employee. Lane concedes a \u201chazard exists when vehicles or machinery are put into motion at the jobsite\u201d (Lane\u2019s brief, p. 7). The Secretary met the first element of\t\t\t\t\t\this prima facie case, establishing\t\t\t\t\t\tthe existence of a struck-by hazard.\t\t\t\t\t\t\t\t\t\tThe Employer or Its Industry Recognized the Hazard\t\t\t\t\t\t\t\t\t\tLane concedes\t\t\t\t\t\tit is aware\t\t\t\t\t\tmoving vehicles on\t\t\t\t\t\tthe\t\t\t\t\t\tconstruction site presented\t\t\t\t\t\tstruck-by hazards to employees on foot: \u201cThere is no dispute that a vehicle-pedestrian accident may\t\t\t\t\t\tcause serious physical harm to an employee.\u201d (Lane\u2019s brief, p. 15) In addition to Lane\u2019s recognition of the hazard, the record establishes the highway construction industry recognizes\t\t\t\t\t\tthe struck-by hazards\t\t\t\t\t\tmoving vehicles present to\t\t\t\t\t\tpedestrians. ANSI\/ASSE A10-47-2009 (Work Zone Safety for Highway Construction) and\t\t\t\t\t\tANSI\/ASSE A10.17-2006 (Safe Operating Practices for Hot Mix Asphalt (HMA) Construction) each address the hazard.5\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is well established that voluntary industry standards are admissible and probative evidence of industry recognition of hazards.\t\t\t\t\t\tBethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979);\t\t\t\t\t\tH\u201330, Inc. v. Marshall,\t\t\t\t\t\t597 F.2d 234 (10th Cir. 1979);\t\t\t\t\t\tTitanium Metals Corp. of America v. Usury, supra\t\t\t\t\t\tnote 3;\t\t\t\t\t\tBeaird-Poulan, A Division of Emerson Electric Co., supra; The Boeing Co., Wichita Division,\t\t\t\t\t\t77 osahrc 188\/D13, 5 BNA OSHC 2014, 1977\u201378 CCH OSHD \u00b622, 266 (No. 12879, 1977);\t\t\t\t\t\tcf. Betten Processing Corp., 75 OSAHRC 43\/E2, 2 BNA OSHC 1724, 1974\u201375 CCH OSHD \u00b619,481 (No. 2648, 1975) (ANSI standard used to show industry recognition of the hazard had been incorporated by reference.).\t\t\t\t\t\t\t\t\t\tCargill, Inc.,\t\t\t\t\t\t10 BNA OSHC 1398, 1402 (No. 78-5707, 1982).\t\t\t\t\t\t\t\t\t\tIn 2012, the Secretary published a Request for Information\t\t\t\t\t\t(RFI)\t\t\t\t\t\t\u201cseeking information about backover incidents that occur when drivers or mobile equipment operators have an obstructed view to the rear.\u201d\t\t\t\t\t\tReinforced Concrete in Construction, and Preventing Backover Injuries and Fatalities,\t\t\t\t\t\t77 Fed.\t\t\t\t\t\tReg.\t\t\t\t\t\t18973-01 (March 23, 2012)\t\t\t\t\t\t(Exh. R-4). The Secretary published\t\t\t\t\t\tthe RFI due to concerns raised by a search of OSHA\u2019s Integrated Management Information System,\t\t\t\t\t\twhich identified 358 fatal accidents caused by backing vehicles\t\t\t\t\t\tover a six-year period, from 2005 through 2010. Relevant to this case, the RIF states,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThree types of vehicles caused a large number of deaths: 61 deaths involved dump trucks; 31 deaths involved tractor trailers; and 20 deaths involved garbage trucks. . . . Eight of the deceased workers were using cell phones when the backover incident occurred. Twenty-one fatalities involved vehicles with no driver. Twenty-five of the victims were acting as spotters for the vehicles that backed over them. In many of the cases, employers were using spotters to comply with the existing backover-related standards. In some\t\t\t\t\t\t[of]\t\t\t\t\t\tthese cases, OSHA cited employers under \u00a7 5(a)(1) of the Occupational Safety and Health Act of 1970, known as the General Duty Clause.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tId.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The Secretary has established Lane and the highway construction industry recognize the struck-by hazard presented to pedestrians by moving vehicles.\t\t\t\t\t\t\t\t\t\tThe Hazard Was Likely to Cause Death or Serious Physical Harm\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0As noted, Lane concedes, \u201cThere is no dispute that a vehicle-pedestrian accident may cause serious physical harm to an employee.\u201d (Lane\u2019s brief, p. 15) The Secretary has established the third element of the alleged violation.\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0Lane disputes\t\t\t\t\t\tthe\t\t\t\t\t\ttwo\t\t\t\t\t\tremaining\t\t\t\t\t\telements: (1) the feasibility and effectiveness of the Secretary\u2019s proposed means to eliminate or materially reduce the hazard and (2) Lane\u2019s actual or constructive knowledge of the hazardous condition.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMeans to Eliminate or Materially Reduce the Hazard\t\t\t\t\t\t\t\t\t\tThe Secretary has the burden of \u201cdemonstrat[ing] both that the [proposed abatement] measures are capable of being put into effect and that they would be effective in materially reducing the incidence of the hazard.\u201d\t\t\t\t\t\tBeverly Enters., 19 BNA OSHC at 1190, 2000 CCH OSHD at p. 48,981. \u201cFeasible means of abatement are those regarded by conscientious experts in the industry as ones they would take into account in \u2018prescribing a safety program.\u201d\u2019\t\t\t\t\t\tId.\t\t\t\t\t\tat 1191 (quoting\t\t\t\t\t\tNat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973)). If the proposed abatement \u201ccreates additional hazards rather than reducing or eliminating the alleged hazard, the citation must be vacated for failure to prove feasibility ….\u201d\t\t\t\t\t\tKokosing, 17 BNA OSHC at 1875 n.19, 1995-1997 CCH OSHD at p. 43,727 n.19. But the Secretary is not required to show that the proposed abatement would completely\t\t\t\t\t\teliminate the hazard.\t\t\t\t\t\tMorrison-Knudsen Co.\/Yonkers Contracting Co., 16 BNA OSHC 1105, 1122, 1993-1995 CCH OSHD \u00b6 30,048, p. 41,279 (No. 88-572, 1993).\t\t\t\t\t\t\t\t\t\tAcme Energy Servs.,\t\t\t\t\t\t23\t\t\t\t\t\tBNA OSHC\t\t\t\t\t\t2121, 2127\t\t\t\t\t\t(No.\t\t\t\t\t\t08-0088, 2012)\t\t\t\t\t\t\t\t\t\tThe ANSI\/ASSE Standards\t\t\t\t\t\t\t\t\t\tThe Citation refers to Section\t\t\t\t\t\t6.4 of ANSI\/ASSE A10.47, which provides:\t\t\t\t\t\t\t\t\t\tAccess and Egress to Work. Prior to starting work, a site specific safety plan shall be developed and implemented for safe worker access to and egress from the work area, whether driving or walking. These plans shall be updated and evaluated by the controlling contractor when necessary (e.g., changes in work site operations or environment).\t\t\t\t\t\t\t\t\t\tCSHO Pruna Padilla\t\t\t\t\t\ttestified the referenced section is feasible because \u201cit can rely on workers that you already have there at the mill and communication in between these workers in the mill and the dump truck. \u2026 [T]hey have to, like, check that, \u2018Okay, everything is done,\u2019 establish a plan that they go through and then they can communicate with each other before restarting.\u201d (Tr. 343-344) \t\t\t\t\t\t\t\t\t\tLane points out the referenced section addresses access and egress to work, which is not the work activity at issue. Section 6.4 is designed to allow employees to go to and leave from the work\t\t\t\t\t\tarea\t\t\t\t\t\twith a maximum of separation from vehicles. It is not specific to protecting workers on foot. It calls for the development and implementation for workers \u201cwhether driving or walking.\u201d Section 6.4 applies to employees going to and from work, and not to employees actually performing their assigned tasks, as is made clear by the immediately following section, 6.4.1:\t\t\t\t\t\t\t\t\t\tThis plan\t\t\t\t\t\tshall include information on the location of employee parking, sanitation facilities, break areas, and a path from employee parking area to work areas.\t\t\t\t\t\t\t\t\t\t(Exh. R-3)\t\t\t\t\t\t\t\t\t\tLudwig testified a site specific safety plan for worker access to and egress from the work area is not applicable to the milling and paving activity Lane was performing the night of the accident. \u201c[T]here\u2019s moving parts everywhere in this process and it\u2019s not really that you can\u2019t keep people out of the work zone and keep them in certain areas. You have to\t\t\t\t\t\thave\t\t\t\t\t\taccess\t\t\t\t\t\tall over the work zone that you\u2019re in. \u2026All the workers, whether they\u2019re the milling crew, the cleaning crew, the superintendent, the trucks. They all need access and are moving parts within this work zone.\u201d (Tr. 296) In his brief, the Secretary acknowledges the need for Lane\u2019s employees\t\t\t\t\t\tto be present\t\t\t\t\t\tin\t\t\t\t\t\tthe work area. \u201cRespondent\u2019s superintendents are regularly on foot in the lane closure performing quality control while the operation is occurring.\u201d (Secretary\u2019s brief, p. 6)\t\t\t\t\t\tIn this case, the Superintendent\t\t\t\t\t\tand\t\t\t\t\t\tLudwig were required to be in the work area in order to\t\t\t\t\t\tfollow\t\t\t\t\t\tthe\t\t\t\t\t\ttrail\t\t\t\t\t\tof motor oil\t\t\t\t\t\tdrops\t\t\t\t\t\ton the roadway at night. They were not in the process of accessing or egressing the work area\u2014they were walking in the work area\t\t\t\t\t\tto determine the source of the oil leak.\t\t\t\t\t\t\t\t\t\tLane argues a more applicable ANSI standard is ANSI\/ASSE A10.17, the scope of which\t\t\t\t\t\tis \u201cthose operations involving hot mix asphalt (bituminous) mixtures and materials for construction and resurfacing.\u201d\t\t\t\t\t\t\t\t\t\t\t\t(Exh. R-11, section 1.1)\t\t\t\t\tSection 2.1 addresses \u201cVehicular and\t\t\t\t\t\tPedestrian\t\t\t\t\t\tTraffic\u201d and provides,\t\t\t\t\t\t\u201cIn the paving operations, interference with pedestrian and vehicular traffic shall be avoided\t\t\t\t\t\twherever possible and shall be kept to a minimum in time and scope in circumstances where it cannot be avoided. When\t\t\t\t\t\tinterference results, a specific written traffic control plan and paving pattern shall be formulated and implemented.\u201d\t\t\t\t\t\t(Exh.\t\t\t\t\t\tR-11)\t\t\t\t\t\tThis ANSI standard is more specifically applicable to the milling and paving operations Lane was performing the night of the accident than Section 6.4 of ANSI\/ASSE A10.47.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSection 3.3\t\t\t\t\t\tof ANSI\/ASSE A10.17\t\t\t\t\t\taddresses \u201cBacking Vehicles\u201d and states:\t\t\t\t\t\t\t\t\t\t3.3.1 Trucks that must back to the spreader or paver to discharge their loads shall be directed by a guide person positioned well within view of the driver of the truck.\t\t\t\t\t\t\t\t\t\t3.2.1.1 The guide person shall not stand in the path of the traffic stream.\t\t\t\t\t\t\t\t\t\t3.3.1.2 The guide person shall not ride on the running board of the truck.\t\t\t\t\t\t\t\t\t\t3.3.1.3 The guide person shall keep all workers and other personnel clear of all backing vehicles.\t\t\t\t\t\t\t\t\t\t3.3.1.4 The driver of the vehicle shall not discharge material until given an \u201call clear\u201d signal by the guide person.\t\t\t\t\t\t\t\t\t\t3.3.2 An audible warning device mounted on the vehicle shall be detectable by workers in the area, and shall be sounded automatically while the vehicle is backing.\t\t\t\t\t\t\t\t\t\t3.3.3 Operators of bidirectional, self-propelled vehicles shall be certain that the travel area\t\t\t\t\t\tis free of foreign material, personnel and vehicles before moving or changing direction. The operator shall face the direction of travel and utilize mirrors.\t\t\t\t\t\t\t\t\t\t3.3.4 All vehicles shall approach the paver slowly and with caution.\t\t\t\t\t\t\t\t\t\t3.3.6 All vehicles shall be equipped with backup alarms and mirrors specified by the original equipment manufacturer\u2019s specifications.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(Exh. R-11)\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The Secretary has adduced no evidence showing Lane failed to comply with any of these\t\t\t\t\t\tsubsections.\t\t\t\t\tLane employee Grimes\t\t\t\t\t\twas not directing the truck backing\t\t\t\t\t\tup\t\t\t\t\t\tat the time\t\t\t\t\t\tof the accident, so he was not in a position to keep personnel clear of the backing\t\t\t\t\t\ttruck\u2014it was\t\t\t\t\t\ta non-employee,\t\t\t\t\t\tCordova,\t\t\t\t\t\twho directed the truck to back up and who had the responsibility to keep personnel clear of the truck.\t\t\t\t\t\t\t\t\t\tThe Secretary has not established Lane failed to comply with ANSI\/ASSEE A10.17, the more applicable standard, and he has not established compliance with section 6 of the standard he cited in Item 1, ANSI\/ASSE A10.47, would eliminate or materially reduce the cited hazard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe\t\t\t\t\t\tSecretary\u2019s RIF discussed backover prevention\t\t\t\t\t\tmethods, including the proposed means of abatement at issue, the ITCP.\t\t\t\t\t\t\t\t\t\tInternal traffic control plans (ITCP) is another method used to address backover construction equipment, workers, and vehicles at a Worksite to prevent vehicle impacts with workers. These plans can significantly reduce, or possibly eliminate, the need for vehicles to back up on a site. ANSI standard A10.47-2009,\t\t\t\t\t\tWork Zone Safety for Highway Construction,\t\t\t\t\t\tsection 6.3 recommends that employers develop ITCPs and communicate them to employees. In addition, section 6.3.3 states that an ITCP should include a diagram of travel routes; a listing of all onsite personnel and equipment; a checklist of site-specific safety hazards and how to minimize these hazards; a list of safety notes defining site-specific injury prevention measures; and a plan for communicating the ITCP to workers, truck drivers, and equipment operators.\t\t\t\t\t\tHowever, OSHA has no information on the effectiveness of this consensus standard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t77 Fed. Reg.\t\t\t\t\t\t18973-01 (March 23, 2012)\t\t\t\t\t\t(Exh. R-4) (emphasis added).\t\t\t\t\t\t\t\t\t\tThe Secretary concedes in his RIF\t\t\t\t\t\tthat OSHA has no information on the effectiveness of\t\t\t\t\t\tITCPs as recommended by\t\t\t\t\t\tthe ANSI\t\t\t\t\t\tWork Zone Safety for Highway Construction\t\t\t\t\t\tstandard. He is, therefore, unable to meet his burden of establishing \u201ca feasible and\t\t\t\t\t\teffective\t\t\t\t\t\tmeans existed to eliminate or materially reduce the hazard.\u201d\t\t\t\t\t\t(emphasis added)\t\t\t\t\t\t\t\t\t\tLane\u2019s\t\t\t\t\t\tSafety\t\t\t\t\t\tProgram\t\t\t\t\t\t\t\t\t\tIn his post-hearing brief, the Secretary posits an alternative means of abatement to the ITCP he cited in Item 1 of the Citation. The Secretary contends Lane\u2019s existing safety\t\t\t\t\t\tprogram\t\t\t\t\t\t\u201ccould constitute abatement if Respondent implemented and enforced them as Respondent claims it intended.\u201d (Secretary\u2019s brief, p. 14)\t\t\t\t\t\tCSHO Pruna Padilla testified that if Lane\u2019s safety\t\t\t\t\t\tprogram\t\t\t\t\t\t\u201cwere followed, yes, that can definitely reduce the hazard.\u201d (Tr. 345) \u201c[W]here the employer has a mechanism designed to eliminate a hazardous condition, the burden is on the Secretary to establish that the employer’s measures were inadequate.\t\t\t\t\t\tCerro Metal Products,\t\t\t\t\t\t12 BNA OSHC\t\t\t\t\t\t1821, 1822\u201323\t\t\t\t\t\t(No. 78-5159, 1986),\t\t\t\t\t\tciting National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266\u201368 & n. 40 (D.C.Cir.1973).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSpecifically, the Secretary claims Lane\u2019s safety measures were inadequate because, on the night of the accident, Grimes failed to follow four of Lane\u2019s\t\t\t\t\t\tinternal\t\t\t\t\t\tsafety rules.\t\t\t\t\t\t\t\t\t\tGrimes as the designated spotter did not go over the signals with the driver and did not even know that the night of the accident was the driver\u2019s first night driving at the Worksite. \u2026 Although Respondent\u2019s program required a spotter to be able to see the driver, maintain eye contact, and ask the driver to keep the window rolled down, there was no hope of that occurring with the spotter hundreds or a thousand feet behind the truck in the dark. \u2026 Grimes\t\t\t\t\t\twore no contrasting color reflective vest or fluorescent hard had as the program required. \u2026\t\t\t\t\t\tAnd, although the program allegedly resulted in spotter signals being printed on a card that was given to every worker, Respondent\u2019s own lead man and designated spotter never saw or knew of such a card.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t(Secretary\u2019s brief, p. 14)\t\t\t\t\t\t\t\t\t\tOf these four internal rules\u2019\t\t\t\t\t\tinfractions, the Secretary focuses on Grimes\u2019s failure to go over spotter signals with the new driver who struck the Superintendent\t\t\t\t\t\tas crucial. In her Inspection Narrative, CSHO Pruna Padilla writes\t\t\t\t\t\tconclusively\t\t\t\t\t\tthat if Lane had communicated its spotter signals\t\t\t\t\t\tto the\t\t\t\t\t\tOB Trucking driver before work started, \u201cthen the driver would have refused to move until he observed the ground man\/spotter signaling to back up.\u201d (Exh. R-1, p. 6)\t\t\t\t\t\tThe evidence does not support this speculative\t\t\t\t\t\tstatement. CSHO Pruna Padilla also writes\t\t\t\t\t\tthat, prior to the night of the accident,\t\t\t\t\t\tthe\t\t\t\t\t\tOB Trucking\t\t\t\t\t\tdriver \u201chad visited several construction sites with his uncle . . . and another family friend who also owns and operates a similar dump truck. During these site visits, milling and paving operations were observed by [the driver] as part of his training on how to interpret the spotters and operators\u2019 signals.\u201d (Exh. R-1, p. 5)\t\t\t\t\t\tThere\t\t\t\t\t\tis no evidence the driver did not understand he was to respond only to the designated spotter.6\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn addition to establishing the inadequacy of an employer\u2019s \u201cmechanism designed to eliminate a hazardous condition,\u201d\t\t\t\t\t\tthe Secretary\t\t\t\t\t\t\u201cmust show that knowledgeable persons familiar with the industry would regard additional measures as necessary and appropriate in the particular circumstances existing at the employer’s worksite.\u201d Inland Steel Co.,\t\t\t\t\t\t12 BNA\t\t\t\t\t\tOSHC 1968,\t\t\t\t\t\t1970-71\t\t\t\t\t\t(No. 79-8296, 1986). The Secretary did not present an expert witness in this proceeding. The ANSI Standards admitted into the record, which are evidence of industry recognition,\t\t\t\t\t\tdo not recommend the additional measures (the four internal rules of Lane\u2019s safety program cited by the Secretary) as \u201cnecessary and appropriate\u201d for the conditions existing at Lane\u2019s worksite.\t\t\t\t\t\t\t\t\t\tThe Court determines the Secretary has failed to establish Lane\u2019s existing safety program was inadequate\t\t\t\t\t\tto\t\t\t\t\t\tmaterially reduce\t\t\t\t\t\tthe incidence of struck-by\t\t\t\t\t\thazards at its worksite. \t\t\t\t\t\t\t\t\t\tKnowledge of the\t\t\t\t\t\tHazardous\t\t\t\t\t\tCondition\t\t\t\t\t\t\t\t\t\tWhen\t\t\t\t\t\tthe Secretary has alleged a violation of the general duty clause, he \u201cmust show that the employer had actual knowledge of the violation or could have discovered it with the exercise of reasonable diligence.\t\t\t\t\t\tNY State Elec. & Gas Co. v. Sec’y of Labor,\t\t\t\t\t\t88 F.3d 98, 105 (2d Cir. 1996).\u201d Otis Elevator Co.,\t\t\t\t\t\t21\t\t\t\t\t\tBNA OSHC\t\t\t\t\t\t2204, 2207\t\t\t\t\t\t(No. 03-1344,\t\t\t\t\t\t2007). This proceeding arises in the Eleventh Circuit. \t\t\t\t\t\t\t\t\t\tUnder Commission precedent, the Secretary can establish the knowledge element of his burden of proof by imputing a supervisor’s knowledge of the violative condition, including knowledge of his or her own misconduct, to the employer.7\t\t\t\t\t\tSee, e.g., Deep S. Crane & Rigging Co., 23 BNA OSHC 2099, 2102 (No. 09-0240, 2012) (noting that under Commission precedent, a supervisor’s knowledge of his own misconduct is imputed to the employer),\t\t\t\t\t\taff’d,\t\t\t\t\t\tDeep S. Crane & Rigging Co. v. Harris, 535 F. App’x 386 (5th Cir. 2013) (unpublished);\t\t\t\t\t\tDover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) (stating that a supervisor’s knowledge of a violative condition is imputed to the employer). However, in\t\t\t\t\t\tComTran, the Eleventh Circuit held \u201cthe Secretary does not carry [his] burden and establish a prima facie case with respect to employer knowledge merely by demonstrating that a supervisor engaged in misconduct.\u201d\t\t\t\t\t\tComTran, 722 F.3d at 1316. The\t\t\t\t\t\tComTran\t\t\t\t\t\tcourt did, however, \u201cdraw a distinction between a supervisor’s knowledge of a subordinate’s misconduct (which everyone agrees is imputable to the employer) and knowledge of his own misconduct (which the clear majority of circuits have held is not).\u201d\t\t\t\t\t\tId.\t\t\t\t\t\tat 1316-17 (emphasis added).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tEmpire Roofing Co. Se., LLC, Respondent., 25\t\t\t\t\t\tBNA OSHC\t\t\t\t\t\t2221, 2224\t\t\t\t\t\t(No. 13-1034,\t\t\t\t\t\t2016).\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The Secretary\u2019s argument regarding who had knowledge of the alleged violation and what the alleged violation is unclear. Three of Lane\u2019s employees present the night of the accident are identified in the record\t\t\t\t\t\tas supervisors: the decedent\t\t\t\t\t\tSuperintendent, the superintendent-in-training Ludwig, and the spotter and leadman Grimes. Even though (as discussed in the previous section)\t\t\t\t\t\tthe Secretary points\t\t\t\t\t\tto Grimes as the Lane employee who failed to follow Lane\u2019s internal rules, the Secretary argues it was the decedent and Ludwig who \u201cwere engaged in and therefore had actual knowledge of the violative conduct. [They] knowingly walked around the middle of the lane closure between the milling machine and the dump trucks where Respondent claims to have a rule that no one is supposed to walk.\u201d (Secretary\u2019s brief, pp. 15-16)\t\t\t\t\t\tLane has a written rule that states, \u201cDo not walk close behind a covered vehicle that is backing up and stay a safe distance around the vehicle in view of the driver at all times.\u201d (Exh. C-9) At\t\t\t\t\t\tthe time the supervisors were walking with Cordova, the designated spotter had not signaled for the next truck to back up. It was Cordova, who was not a Lane employee, who set the truck in motion.7\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The Secretary\u2019s confusion\t\t\t\t\t\tover which supervisory personnel had knowledge of what violative conduct stems\t\t\t\t\t\tfrom the unusual circumstances of this case. Lane was following the applicable ANSI standards and had an adequate safety program in place\t\t\t\t\t\tat its worksite. The\t\t\t\t\t\tprecipitating event for the accident was Cordova\u2019s order to the OB Trucking driver to back up the truck. Cordova knew he was not authorized to order trucks to back up on Lane\u2019s worksite (Tr. 208). \t\t\t\t\t\t\t\t\t\t\u00a0\u00a0In\t\t\t\t\t\tComTran,\t\t\t\t\t\tthe Eleventh Circuit found the supervisor\u2019s conduct in digging an unsafe excavation was not foreseeable to the employer.\t\t\t\t\t\t\t\t\t\t\u201cIdiosyncratic,\u201d \u201cisolated,\u201d\t\t\t\t\t\t\u201cunforeseeable,\u201d\t\t\t\t\t\tand \u201cimplausible\u201d appear to be accurate descriptions of\t\t\t\t\t\t[the supervisor\u2019s]\t\t\t\t\t\tbehavior in this case. He was an experienced supervisor with, insofar as the record is developed, no history of any OSHA violations, let\t\t\t\t\t\talone \u201cserious\u201d ones. In\t\t\t\t\t\tfact, . . .\t\t\t\t\t\tthe President of ComTran, testified at the hearing that when he first heard about what happened he \u201ccouldn’t believe it\u201d and thought there must be \u201csomething more to the story.\u201d\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tComTran Grp., Inc. v. U.S. Dep’t of Labor,\t\t\t\t\t\t722 F.3d 1304, 1317 (11th Cir. 2013).\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0Here, Cordova\u2019s behavior was also idiosyncratic, isolated, unforeseeable, and implausible\t\t\t\t\t\tand\t\t\t\t\t\the was not an employee of Lane\u2019s. Neither was the OB Trucking driver. The fact\t\t\t\t\t\tthis tragic\t\t\t\t\t\taccident occurred does not negate\t\t\t\t\t\tLane\u2019s\t\t\t\t\t\tevidence it took\t\t\t\t\t\tadequate\t\t\t\t\t\tsteps to\t\t\t\t\t\tminimize\t\t\t\t\t\texposure of its employees to struck-by hazards at the worksite. \u201cBecause OSHA is designated to encourage abatement of hazardous conditions themselves, however, rather than to fix blame after the fact for a particular injury, a citation is supported by evidence which shows the preventability of the generic hazard, if not this particular instance.\u201d\t\t\t\t\t\tChamplin Petroleum Co. v. OSHRC,\t\t\t\t\t\t593 F.2d 637, 642 (5th Cir. 1979).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis \u201cparticular instance\u201d occurred because of a set of unusual circumstances\u2014the owner of one subcontractor directed a driver for another subcontractor to back up\t\t\t\t\t\ta\t\t\t\t\t\ttruck, even though he had last seen, only a few minutes before,\t\t\t\t\t\tLane\u2019s Superintendent standing in the\t\t\t\t\t\tpath of the truck\t\t\t\t\t\ttalking on his cell phone. Here, an inexperienced driver recently hired by his uncle found himself suddenly being screamed and cursed at by\t\t\t\t\t\tthe man who\t\t\t\t\t\thad\t\t\t\t\t\thired his\t\t\t\t\t\tboss, ordering him to back up. He had already gotten in trouble for letting his girlfriend sit in the truck. It is unsurprising a driver in that situation would obey, rather than defy, the owner\u2019s authority. Cordova\u2019s officious direction to the driver was an intervening event\t\t\t\t\t\tunforeseen by Lane. Lane\u2019s safety program and its milling operation as set up the night of the accident were adequate to minimize exposure of its employees on foot to the generic hazard of being struck by vehicles. Lane did not anticipate the particular instance of Cordova\u2019s commandeering of the spotter\u2019s\t\t\t\t\t\tduty.\t\t\t\t\t\t\t\t\t\tThe\t\t\t\t\t\tCourt finds the\t\t\t\t\t\tSecretary failed to establish\t\t\t\t\t\this\t\t\t\t\t\tproposed abatement\t\t\t\t\t\tmeasures\t\t\t\t\t\twould be effective in materially reducing the incidence of the hazard,\t\t\t\t\t\tand failed to establish knowledge of the violative condition. Accordingly, the Secretary has not met his burden of establishing a prima facie case. Therefore,\t\t\t\t\t\tit\t\t\t\t\t\tis unnecessary\t\t\t\t\t\tfor the Court\t\t\t\t\t\tto address Lane\u2019s affirmative defense of unpreventable employee misconduct.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tItem 1 of the Citation is vacated.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT AND CONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\tThe foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a). \t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tBased on the foregoing decision, it is hereby ORDERED:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tItem 1 of Citation No. 1, alleging a\t\t\t\t\t\tserious\t\t\t\t\t\tviolation of \u00a7\t\t\t\t\t\t5(a)(1), is\t\t\t\t\t\tVACATED\t\t\t\t\t\tand\t\t\t\t\t\tno\t\t\t\t\t\tpenalty is assessed.\t\t\t\t\t\t\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSO ORDERED.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tDated: August 22, 2017\t\t\t\t\t\t\t\t\t\t\/s\/\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSHARON D. CALHOUN\t\t\t\t\t\tAdministrative Law Judge\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAtlanta, Georgia\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 \t\t\t\t\t\tCounsel for the Secretary stated the distance between the staged trucks and spotter located by the milling machine was 3,000 feet (Tr. 13, lines 14, 16, 23). Miguel Cordova stated the distance was 4,000 feet (Exh. R-6, p. 21). CSHO Pruna Padilla, who conducted the fatality investigation for OSHA,\t\t\t\t\t\treceived information from the Florida Highway Patrol (FHP) resulting from its investigation of the accident. Included as part\t\t\t\t\t\tof her\t\t\t\t\t\tInspection Narrative is a map of Lane\u2019s Veterans Expressway worksite. The legend of the map\t\t\t\t\t\tincludes\t\t\t\t\t\tthe notation, \u201cMilling area, approximately 1,000 feet.\u201d On the map, the distance between the milling machine and the dump truck where it stopped after striking the Superintendent is noted as \u201c560 feet.\u201d A notation states, \u201cFHP Corporal Niles Daughtry measured this distance on 9\/9\/15 at the site.\u201d (Exh. R-1, p. 4) The Court credits the information provided by the CSHO and the FHP over the estimates of the Secretary\u2019s counsel and Cordova, and determines 1,000 feet is the most accurate approximation of the length of the milling area. \t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2 \t\t\t\t\t\tCordova testified\t\t\t\t\t\tGrimes, the designated spotter, told him to send the next truck when he returned to the staging area (Tr. 196-198, 204, 212, 215, 217-218, 240).\t\t\t\t\t\tHe added later that the Superintendent, who was on the phone, \u201calso told me to get him a truck.\u201d (Tr. 216) Grimes denied telling Cordova to send the next truck or knowing that Cordova was going to direct the next driver to back up (Tr.\t\t\t\t\t\t159). Ludwig stated he was standing with Cordova near the Jersey barricade waiting for the Superintendent to finish his phone call and Cordova \u201ckind of looked down the road and realized there wasn\u2019t a truck at the milling machine and he ran out and got the truck to back up. So, he went out and had the truck backing up, got it moving, and then he came back over the barrier wall and stood with me while it backed down through.\u201d (Tr. 300-301)\t\t\t\t\t\tThe Court credits Grimes\u2019s testimony that he did not request Cordova to send a truck and Ludwig\u2019s testimony that Cordova sent the next truck of his own accord once he realized there was no truck at the milling machine. Grimes and Ludwig were credible witnesses, testifying each in a forthright manner. Cordova\u2019s manner, on the other hand, was often evasive and forgetful. He contradicted himself on a number of issues (Tr. 216-217, 220-221). Lane\u2019s counsel effectively impeached him with his previous statement to the police and his deposition testimony\t\t\t\t\t\t(Tr. 213-226, 255-269). The Court does not credit Cordova\u2019s statement that either Grimes or the Superintendent told him to send the next dump truck to the milling machine.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3 \t\t\t\t\t\tThe quoted statements are transcribed from an audiotape played at the hearing. The audiotape is of an interview with Cordova recorded by an officer of the Florida Highway Patrol during his investigation\t\t\t\t\t\tof the fatal accident. The audiotape was played at the request of Lane\u2019s counsel, over the Secretary\u2019s objection, \u201cboth as impeachment and to refresh [Cordova\u2019s] recollection.\u201d (Tr. 241) The Court permitted the playing of\t\t\t\t\t\tportions of the audiotape for\t\t\t\t\t\tthose purposes (Tr. 241-248).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4 \t\t\t\t\tThe Citation refers to the 2015 version of ANSI\/ASSE A10.47. The only version of ANSI\/ASSE A10.47 admitted into the record is the 2009 version (Exh. R-3). There is no section 6.5, referred to in instance b of the Citation\u2019s feasible methods of abatement, in the 2009 version. The Secretary did not refer to section 6.5 in his brief, other than when quoting the Citation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5 \t\t\t\t\t\tSection 6.4 of ANSI\/ASSE A10-47-2009 states, \u201cPrior to starting work, a site specific plan shall be developed and implemented for safe worker access to and egress from the work area, whether driving or walking.\u201d \t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSection 2.1 of ANSI\/ASSE A10.17-2006 states, \u201cIn the paving operations, interference with pedestrian and vehicular traffic shall be avoided wherever possible and shall be kept to a minimum in time and scope in circumstances where it cannot be avoided. When interference results, a specific written traffic control plan and paving pattern shall be formulated and implemented.\u201d\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6 \t\t\t\t\t\t\t\t\t\t\tThe Court recognizes the cause of the accident is not at issue. Wheeling-Pitsburgh Steel Corp., 16 BNA OSHC\t\t\t\t\t\t1218 (No. 89-3389, 1993). The Secretary does raise the issue, however, of Grimes\u2019s\t\t\t\t\t\tfailure to go over the spotter signals with OB Trucking\u2019s driver. To the extent this failure may have contributed to the accident, the Court notes the Secretary had the burden of establishing the inadequacy of Lane\u2019s program. He did not call the driver to testify as to whether he would have refused to obey the urgent demands of his boss\u2019s boss in these unusual circumstances, had Grimes\t\t\t\t\t\tgone over the spotter signals with him. \t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7 \t\t\t\t\tThe Secretary states, \u201cLudwig admitted to knowing that Cordova, rather than Respondent\u2019s spotter, was going to move the truck.\u201d\t\t\t\t\t\t(Secretary\u2019s brief, p. 16) Ludwig testified it was his first night on the job, he was in training, and he had worked with other companies that had subcontracted with Cordova Transport. In some instances Cordova directed the trucks on other worksites. Ludwig stated, \u201cI had no idea at that point if [Cordova] was told to do that or if that was something on a regular basis that happens, you know, when they\u2019re further apart [.]\u201d\t\t\t\t\t\t(Tr. 288-289) As a new hire undergoing training his first night on the job, Ludwig would not be expected to know all aspects of Lane\u2019s safety program. As such, his knowledge is not imputed to Lane.\t\t\t\t\t\t\t\t\t “