Jalco, Inc.

Plain-English summary

A subcontractor employee lost consciousness after entering a 15-foot sewer manhole without atmospheric monitoring, effective ventilation, or rescue equipment. Jalco's foreman entered without a harness, lifeline, or respirator and became dizzy before climbing out. The judge found that the foreman's exposure and inadequate confined-space training established general duty, respiratory protection, and training violations. Those three serious items were affirmed with total penalties of $11,800. The ladder item was vacated because a ladder remained available at the opening and no Jalco employee was exposed without it.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1910.134(a)(2), 1926.21(b)(6)(i), 1926.1051(a)
• Outcome: Three serious confined-space items were affirmed with total penalties of $11,800, and the ladder item was vacated.
• Key point: A supervisor's improvised entry to rescue an unconscious worker was foreseeable where the employer had not provided adequate confined-space training or rescue protections.

Full text (OSHRC public release)

                                                  United States of America
                     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                              1244 Speer Boulevard, Room 250
                                                Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Co mpla inant,

                            v.                                  OSHRC DOCKET NO. 05-1088

JALCO, INC.,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Carlton C . Jackson, E sq., U.S. D epartme nt of Labo r, Office of the Solicitor, Da llas, Texas

      For the Re spo nde nt:
               Tom Scott, W.C. Blayney & Associates, Humble Texas

Before: Administrative Law Judge: James H. Barkley

                                            DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651-678; hereafter called the “Act”).
At all times relevant to this action, Respondent, Jalco, Inc. (Jalco), maintained a place of business
in Corpus Christi, Texas, where it was engaged in the installation of 260 feet of sewer line between Power
and Tancahua on Broadway. Jalco admits it is an employer engaged in a business affecting commerce and
is subject to the requirements of the Act.
On February 15, 2005, the Occupational Safety and Health Administration (OSHA) received a
complaint stating that a person had entered a manhole on Power and Broadway and been overcome by a
hazardous gas (Tr. 45, 137). After receiving the complaint, OSHA conducted an inspection at Jalco’s
Corpus Christi worksite. As a result of that inspection, OSHA issued a citation alleging violation of
Section 5(a)(1) of the Act as well violations of OSHA standards at 29 CFR §§1910.134 and 1926.21. By
filing a timely notice of contest Jalco brought this proceeding before the Occupational Safety and Health
Review Commission (Commission). On January 23, 2006, Complainant moved to amend the citation.
On February 1, 2006, a hearing was held in Corpus Christi, Texas, at which time the motion to amend was
granted (Tr. 6-12). Briefs were submitted on the issues, and this matter is ready for disposition.
 Facts
Fredrick Bright, an OSHA Compliance Officer (CO), visited Jalco’s Corpus Christi work site on
February 15, 2005 (Tr. 44). Bright spoke with Domingo Anguiano, Jalco’s foreman on the site (Tr. 45,
48, 153). Anguiano directed Ricardo Salce, an employee of CM Constructors, Inc. (CM) to enter a
manhole. The manhole was approximately 3 in diameter and 15 feet in depth. Salce was to remove a plug
that had become stuck in the 24" diameter sewer pipe (Tr. 49, 57-59, 65, 155-56, 159, 178-79, 191; Exh.
C-1). An exhaust fan was removed from the opening and a ladder was placed in the manhole (Tr. 81, 158,
163, 200). Salce descended into the manhole on the ladder, which was then removed to give him room
to work (Tr. 57-60, 195). After dislodging the plug, Salce lost consciousness at the bottom of the manhole
(Tr. 57, 165, 181, 193). The ladder was replaced in the manhole and Anguiano went in to rescue Salce (Tr.
57, 66, 165). Anguiano began to feel dizzy himself, and climbed out of the manhole, leaving Salce at the
bottom of the hole (Tr. 57-58, 165, 196). Salce then revived enough to climb out himself (Tr. 57-58).
Bright testified, and Respondent’s representative stipulated that no air monitoring was conducted
at this manhole prior to, or during Salce and Anguiano’s entry (Tr. 62, 78). Ruben Reyna, another CM
employee, was present at the Broadway and Power manhole on February 15, 2005 during the incident.
Reyna likewise testified that no monitoring was performed prior to Salce’s entry (Tr. 193, 199). Anguiano,
however, testified that it is Jalco’s practice to monitor manholes prior to entering, and that he did monitor
the manhole at Broadway and Power earlier, before they started taking out the plugs (Tr. 159-60, 175).
At the time of the manhole entry, there was a small electric blower at Broadway and Tancahua, 260 feet
away from the Broadway and Power manhole (Tr. 62-63, 176-77, 196, 202). Salce did not wear a harness
and lifeline when entering the manhole (Tr. 83). Anguiano did not wear a harness and lifeline when he
entered the hole to rescue Mr. Salce (Tr. 85). Further, Anguiano did not know where the rescue equipment
was located (Tr. 170-71).
Alleged Violation of §5(a)(1)
Serious citation 1, item 1, as amended, alleges:
Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer did not furnish
employment and a place of employment which were free from recognized hazards that were causing or
likely to cause death or serious physical harm to employees in that employees were exposed to atmospheric
hazards:

   On or about February 15, 2005 employees entered a manhole approximately 15 ft deep.

   a.      No air monitoring for hazardous atmospheres or % oxygen was conducted prior to
           employee entry.
   b.      No mechanical ventilation was provided during entry.

                                                 2

c. No rescue equipment was provided by the employer in case of an emergency.

A feasible means of abatement would be to provide atmospheric testing of confined spaces prior to each
employee entry, to ventilate the confined space before and throughout entry procedures by use of blowers
and associated duct work and to provide a tripod, life line and body harness to all confined space entrants.

Discussion
In order to prove a violation of section 5(a)(1) of the Act, the Secretary must show that: (1) a
condition or activity in the workplace presented a hazard to an employee, (2) the hazard was recognized,
(3) the hazard was likely to cause death or serious physical harm, and (4) a feasible means existed to
eliminate or materially reduce the hazard. The evidence must show that the employer knew, or with the
exercise of reasonable diligence could have known, of the violative conditions. Tampa Shipyards, Inc., 15
BNA OSHC 1533, 1991-93 CCH OSHD ¶29,617 (Nos. 86-360, 86-469, 1992).
As a threshold matter, Complainant argues that Mr. Salce, a CM employee was a putative employee
of Jalco under the common law test of agency.
In determining whether a hired party is an employee under the general common law of
agency we consider the hiring party’s right to control the manner and means by which the
product is accomplished. Among the other factors relevant to this inquiry are the skill
required; the source of the instrumentalities and tools; the location of the work; the duration
of the relationship between the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired party’s discretion over when
and how long to work; the method of payment; the hired party’s role in hiring and paying
assistants; whether the work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the tax treatment of the
hired party.

Nationwide Mut. Ins. Co. v. Darden. 503 U.S. 326 (1992).
In addition to Ricardo Salce, CM employees Ruben Reyna and Lucio Anguiano were present at the
Broadway and Power work site (Exh. C-8). According to Bright, the CM employees were not sure whether
Jalco or CM was their employer (Tr. 56). Anguiano told Bright that he had sole responsibility for directing
the work of Salce and other CM employees at the Broadway and Power site, and that he could hire,
discipline and fire CM employees (Tr. 54-55, 157, 164).
CM and Jalco are separate entities (Tr. 25). Jalco’s subcontract with CM states that CM is to
provide labor, pay taxes and provide insurance for the duration of the Northside/Port Area Infrastructure
project for the City of Corpus Christi (Exh. C-12, p. 1). The subcontract prohibits the assignment of extra
work in the absence of a written agreement, and specifically contemplates CM’s use of lower tier
subcontractors (Exh. C-12, pp. 2, 4). CM acknowledges its familiarity with OSHA regulations and agrees

                                                 3

to abide by them (Exh. C-12, p. 5). Finally, CM supervisors were directing CM employees working at
Broadway and Tancahua, 260 feet away from the Power Street site; CM was cited for violations discovered
at that location (Tr. 26, 80, 130).
This sparse record fails to establish that Jalco’s control of the worksite was such that it was the de
facto employer of the CM employees working with Mr. Anguiano. The record includes little detail about
the nature of the work being performed, and nothing clarifying the relationship between CM and Jalco
beyond what is contained in the subcontract. Mr. Anguiano’s direction of the workers in one area of the
Corpus Christi project is insufficient to establish that Jalco exercised such control over those workers’
work environment that it became the insurer of their compliance with the Act.
The Secretary’s failure to establish that Ricardo Salce was a Jalco employee is not fatal to this
citation, however, as Jalco’s foreman was also exposed to the cited hazard.
Bright testified that the cited manhole was a “confined space”, which has a limited means of entry
and egress and may potentially contain accumulations of hazardous sulfide gas or methane from decaying
organic matter found in sewers (Tr. 49, 69; §1926.25(b)(6)(ii)). Based on employees reporting the smell
of rotten eggs, Bright concluded that hydrogen sulfide was released when the plug was removed and waste
water began to flow into the manhole (Tr. 100, 193). Where hydrogen sulfide is present, loss of
consciousness results approximately 50 parts per million (ppm). Death occurs at between 100 and 200
ppm (Tr. 100). Respondent’s representative stipulated that the failure to monitor atmospheric conditions
prior to entering a confined space is a recognized hazard (Tr. 70-72). Moreover, Jalco’s confined space
entry procedure states that:
When there is a possibility that a hazardous environment could develop within the space
due to operations performed, surrounding conditions and incursion of contaminants from
other sources, or from volatile materials released. . . there should be either frequent or
constant monitoring of atmospheric conditions (Exh. C-7, p. 11).

Respondent further recognized that failure to provide mechanical ventilation and rescue equipment for
confined space entries is hazardous (Tr. 70-72). Jalco requires any person entering a confined space wear
a harness or lifeline (Exh. C-7, p. 9).
Monitoring/Rescue Equipment. Jalco’s supervisor was exposed to the cited hazards. Jalco’s
own rules require frequent or constant monitoring of volatile atmospheres. The atmosphere in the
manhole, which was subject to change due to the incursion of contaminants with the removal of the sewer
plug, was not monitored prior to Anguiano’s entry. Even without monitoring, the hazardous nature of
manhole’s atmosphere should have been clear to Mr. Anguiano after Salce lost consciousness.

                                                  4

Nonetheless, he entered the unmonitored manhole without a body harness and lifeline. That his exposure
was brief does not make the violation less serious. As noted above, no monitoring of the atmosphere was
performed prior to his entry. Had the accumulation of toxic gas been higher, Anguiano might not have
been able to rescue either Salce or himself. Because he wore no harness and lifeline, he could not have
been pulled from the manhole should he have been overcome himself.
Jalco argues that Anguiano was on the work site solely in an administrative capacity and that his
entry into a confined space could not have been anticipated. That contention is not supported by the
record. Anguiano testified that either he or one of the two CM laborers had to enter the manhole to remove
the sewer plug, and that Salce went down only because it was his turn (Tr. 158-59). Clearly Anguiano
anticipated entering confined spaces himself, and he did not hesitate to do so to rescue another worker,
though in doing so he acted contrary to Jalco’s confined space entry program and exposed himself to a
recognized hazard. Given the paucity of his training, however, it cannot be found that Anguiano’s entry
into the manhole was either unforeseeable or unpreventable. See Ormet Corp., 14 BNA OSHC 2134,
2138-39, 1991-93 CCH OSHD ¶29,254, p. 39,203 (No. 85-531, 1991); Mosser Construction Co., 15 BNA
OSHC 1408, 1991-93 CCH OSHD ¶29,546 (No. 89-1027, 1991). Anguiano testified that he might have
attended a two or three hour course on confined space training approximately four years prior to the
accident, but had no clear memory of the course name or content (Tr. 166-67, 170).
For the reasons stated, Anguiano’s knowledge of the cited conditions is imputed to Jalco and a
violation of 5(a)(1) is established.
Ventilation. Jalco claims the manhole at Broadway and Power was ventilated by two fans, a small
electric blower located 260 feet away, at Broadway and Tancahua, and an exhaust fan in the manhole
opening, which was removed to allow entry into the manhole itself. Viewed in the most favorable light
to Jalco, the blower at Broadway and Tancahua was ineffective, as two employees were overcome in the
manhole while it was operating. Viewed less favorably, the fan was a contributing factor in the incident,
in that it can be inferred from this record that the blower pushed toxic air that had accumulated in the 260
feet of sewer pipe into the manhole once the plug was removed. Jalco’s claim that the manhole was
ventilated is without merit.
However, Complainant failed to demonstrate that alternative mechanical ventilation was feasible
on this record. In its brief, Complainant suggests that the exhaust fan used in conjunction with the blower
would have been adequate, and that it could have been replaced in the cited manhole after the employees
had entered. The evidence, however, shows that the fan was supported by the manhole cover and had to
be removed before anyone could enter the manhole (Tr. 139, 163; Exh. C-3). It could not be returned to

                                                 5

service without blocking the manhole opening, preventing the use of a ladder, the observation and rescue,
if necessary, of men working in the hole.
Though the Secretary has not shown a feasible means of ventilating the manhole, a violation of
§5(a)(1) has been proven, in that monitoring and the use of rescue equipment were both feasible means of
abatement.
Penalty
The determination of what constitutes an appropriate penalty is within the discretion of the Review
Commission. Penalties may be lowered or raised by the judge, or the Commission. See, Valdak
Corporation, 17 BNA OSHC 1135, 1993-95 CCH OSHD ¶30759 (No. 93-0239, 1995), affd., 73 F.3d 1466
(8th Cir. 1996). In determining the penalty the Commission is required to give due consideration to the size
of the employer, the gravity of the violation and the employer's good faith and history of previous
violations. The gravity of the offense is the principle factor to be considered. Nacirema Operating Co.,
1 BNA OSHC 1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972). Gravity factors to be considered include:
(1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions
taken against injury, if any; and (4) the degree of probability of occurrence of injury. Kus-Tum Builders,
Inc. 10 BNA OSHC 1049, 1981 CCH OSHD ¶25,738 (No. 76-2644, 1981).
The Secretary proposed a penalty of $4,000 for this item (Tr. 99). The Secretary understated the
gravity of this violation. Hydrogen sulfide in extremely small concentrations can cause blurred vision and
trouble breathing, leading to unconsciousness and death (Tr. 98). One Jalco employee was exposed to the
cited hazard for long enough to be affected by the toxic atmosphere in the manhole. The likelihood of an
incident occurring was not only very high, but, in fact, had already occurred as another laborer had already
been overcome in the manhole. The affected employee was acting in a supervisory capacity over another
employer’s employees without proper training in confined space entry, posing a hazard to both himself and
the other employee. In confined space cases, it is too common for ill prepared co-workers to rush to the
aid of a fallen worker only to be overcome themselves. Death has been an unfortunate result in certain of
these cases. Employers working with confined spaces must be ever vigilant. Salce, Anguiano and Jalco
are fortunate that Salce and Anguiano did not meet a more serious fate. No alternative measures were
taken to protect against likely injury (Tr. 99). Though Jalco is a small employer, it has received other
OSHA citations within the past three years (Tr. 97, 99). Taking into account the relevant factors, especially
the high likelihood of a death resulting from what was an obvious hazard, a penalty of $5,000.00 is
appropriate and will be assessed.

                                                 6

Alleged Violation of §1910.134(a)(2)
Serious citation 1, item 2 alleges:
29 CFR 1910.134(a)(2): Respirators were not provided by the employer when such equipment was
necessary to protect the health of the employee(s):

   On February 15, 2005 an employee entered a 15 ft. deep manhole with no respiratory protection

to remove a sewer plug, and was overcome with a hazardous gas.

   The cited standard provides:

   Respirators shall be provided by the employer when such equipment is necessary to protect
   the health of the employee. The employer shall provide the respirators which are applicable
   and suitable for the purpose intended. The employer shall be responsible for the
   establishment and maintenance of a respiratory protection program which shall include the
   requirements outlined in paragraph (c) of this section.

Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359, 1991).
The general industry respiratory standards are adopted under 29 CFR §1926.103. When Salce was
overcome by the toxic atmosphere in the manhole it was clear that employees entering the manhole to
rescue him would need respiratory equipment to protect them from a similar fate. The cited standard is,
therefore, applicable. Jalco’s confined entry procedures provide for such a contingency, stating that “[i]f
ventilation is not possible and entry is necessary (for emergency rescue, for example), workers must have
appropriate respiratory protection” (Exh. C-7, p. 11). Yet it is uncontroverted; Jalco did not provide
respirators on the Corpus Christi work site (Tr. 106-07). Anguiano’s exposure to the cited hazard was
foreseeable given the meager training he was provided in confined space entry and the urgency he must
have felt to rescue a fallen worker. Citation 1, item 2 has been established.
Penalty
Without respiratory protection, an employee entering a confined space with a hazardous atmosphere
can be overcome, suffering respiratory trauma, including asphyxiation and death (Tr. 107). Anguiano was,
in fact, overcome. Because he was acting as a supervisor, and directing CM employees on the worksite,

                                                7

means that his failure to use appropriate respiratory protection endangered not just himself, but other
employees. For the reasons discussed above, a penalty of $5,000.00 is appropriate and will be assessed.

                             Alleged Violation of §1910.21(b)(6)(i)
    Serious citation 1, item 3 alleges:

29 CFR 1926.21(b)(6)(i): Employees required to enter into confined or enclosed spaces were not instructed
as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective
and emergency equipment required:

    On February 15, 2005 and times prior thereto, employees had not been made aware of the
    hazardous conditions of confined spaces, specifically manholes and sewer lines.

    The cited standard provides:

    All employees required to enter into confined or enclosed spaces shall be instructed as to the nature
    of the hazards involved, the necessary precautions to be taken and in the use of protective and
    emergency equipment required. The employer shall comply with any specific regulations that
    apply to work in dangerous or potentially dangerous areas.

Facts
Anguiano holds weekly trench safety meetings with his crews in both English and Spanish (Tr.
183). Every six months or so Jalco provides training dealing with general safety, such as the proper use
of hand tools and ladders (Tr. 185). During the inspection Anguiano told Bright that he had no confined
space training (Tr. 119, 144). At the hearing he testified he might have attended a two or three hour course
on confined space training approximately four years prior to the accident, but had no clear memory of the
course name or content (Tr. 166-67, 170). He and three or four other people had been shown how to use
a gas monitoring device (Tr. 184).
Discussion
On this record Anguiano’s training in confined space entry seems to have been limited to the use
of a gas detector to monitor such spaces prior to entry. He could not remember having received any
training specific to confined spaces within the past four years. He displayed no competence in the safe
entry of confined spaces at the hearing, and certainly demonstrated none in the workplace when called
upon to do so on February 15, 2005. Respondent produced no training documents in response to the
Bright’s request for them, though annual confined space training is required under Jalco’s own confined
space procedures (Tr. 116-18; Exh. C-7, p. 6).
The cited violation has been established.

                                                 8

Penalty
Anguiano’s failure to conduct monitoring, or to have rescue equipment and respiratory equipment
available at the Broadway and Power manhole can be directly attributed to Jalco’s failure to provide
adequate confined space training. This violation lays the foundation for those found at items 1 and 2, and
so could have led to suffocation, asphyxiation and death (Tr. 117-19). For the reasons stated in the penalty
discussions above, a penalty of $1,800 is appropriate and will be assessed.

                              Alleged Violation of §1926.1051(a)
   Serious citation 1, item 4 alleges:

29 CFR 1926.1051(a): Stairways or ladders were not provided at all personnel points of access where there
was a break in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment, or
personnel hoist was provided:

   On February 15, 2005 and time prior thereto, an employee removing a sewer plug approximately

15-15 feet deep had no ladder provided for means of egress.
The cited standard provides:
A stairway or ladder shall be provided at all personnel points of access where there is a
break in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment,
or personnel hoist is provided.
Discussion
The witnesses all agreed that a ladder was used to access the cited manhole. It was then removed
by the laborers watching the hole so as to allow Salce room to work. The ladder remained available at the
top of the manhole and was used by Anguiano in his rescue attempt. The ladder was not removed while
Anguiano was inside (Tr. 122-23, 132). No Jalco employees were exposed to a hazard, and this item is
dismissed.

                                                 9

ORDER

1. Serious citation 1, item 1, alleging violation of §5(a)(1) of the Act is AFFIRMED, and a penalty
   of $5,000.00 is ASSESSED.

2. Serious citation 1, item 2, alleging violation of §1910.134(a)(2) of the Act is AFFIRMED, and
   a penalty of $5,000.00 is ASSESSED.

3. Serious citation 1, item 3, alleging violation of §1926.21(b)(6)(i) of the Act is AFFIRMED, and
   a penalty of $1,800.00 is ASSESSED.

4. Serious citation 1, item 4, alleging violation of §1926.1051(a) of the Act is VACATED.

                                                /s/
                                               James H. Barkley
                                               Judge, OSHRC
   

Dated: April 21, 2006

                                              10