T & S Utilities, Inc. (ALJ decision, May 9, 1994)

Plain-English summary

T & S Utilities installed sewage-pump-station lines in Fort Myers, Florida, and employees worked inside manholes at the site. The judge vacated a general duty clause allegation because a specific confined-space training standard covered the condition and the record did not show actual atmospheric contamination or oxygen deficiency. He affirmed the specific confined-space training item because employees had not been taught to recognize hazards or use protective and emergency equipment. A manhole-guarding item was vacated because the cited floor-opening standard did not apply to the permanent manholes. Ladder-extension and ladder-training items, a repeated hard-hat item, and an item for failing to report a fatal accident within 48 hours were affirmed. Total penalties were $6,000.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1926.21(b)(6)(i), 1926.500(b)(6), 1926.1053(b)(1), 1926.1060(a), 1926.100(a), and 1904.8.
• Outcome: Mixed. Two items were vacated and five were affirmed with total penalties of $6,000.
• Key point: The general duty clause does not apply when a specific standard covers the alleged condition, but employers must provide required confined-space and ladder training and directly report workplace fatalities.

Full text (OSHRC public release)

UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119

FAX:
PHONE: c0M(404)347-011,
COM (404) 347497
Fn (404) 347-0113
Frs (404) 347497

SECRETARY OF LABOR,
Complainant,

v. OSHR C Docket No. 934015

TBiSUTIIDBSJNC.,
Respondent.
0
.

APPEARANCES:

Stephen Alan Clark Esquire
Mr. Stephenwhite
Officeof the Solicitor
TdtSUtili~k
U. S. Department of Labor
Fort Myers,Florida
Fort Lauderdale,Florida
For Respondent PM SC
Fbr COmplainant

Before: AdministrativeLaw Judge Paul L Brady

This proceeding is brought pursuant to section 10 of the Occupational safety and Health Act of 1970 (Act) to contest three citations issued by the Secretary of Labor (Secretary) pursuant to section 9(a) of the Act. The citations resulted from an inspection of T & S Utilities, Inc.‘s (T & S) worksite at 2310 Edwards Drive, Fort Myers, Florida.
There is no dispute that T & S was a subcontractor. responsible for installing new lines in a sewage pump station for the City of Fort Myers. The inspection was conducted as the result of notification that a fatality occurred at the worksite. Alleged Violation of fi S(a)fl)

Section 5(a)(l) requires that each employer: shall furnish to each of his employees employment and a place of kh;ployment which are fkee fkom recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

It is alleged in the citation that employees were exposed to the hazard of atmmphe& contamination by toxic or flammable vapors or oxygen deficiency while working in manholes.
Stephen White, owner of T & S, testified employees worked in manholes at the site removing mud. The two manholes were approximately 6 feet in diameter at the bottom,and 22 inches at the entry on top. They were connected by a pipe at a depth of 13% fact (MI. C-3; Tr. 19-21). He also indicated employees were required to tie into existing pipe at the sewage pump station (Tr. 13).
Compliance OIBcer Nancy Hodedus conducted the inspection that pm I&Cto issuance of the citations. She testified that she observed two employees remwing mud from a manhole with a five-gallon bucket. One employee was filling the container on the inside, and the other was lifting it out.
Ms. Hodenius determined that the manhole was a confined space that could expose employees to the hazard of oxygen deficiency, combustiile vapors, or toxic chemicals. Employees informed her that they thought testing had been done, but there was no indication testing had actually been performed. She believed T & S should have a written ’ program with procedures to be followed when potential hazards exist in confirM spaces. Such a program should include a competent person to evaluate conditions and direct employees in the Sadieperformance of their work (Tr. 33-34).
The question arises as to whether 6 S(a)(l), the general duty clause, applies to the facts of this case. There is no evidence employees were exposed to atmospheric contamination or oxygen deficiency. Nor is it indicated that working in manholes is in itself a recognized hazard. In support of the alleged violation, Ms. Hodenius test&d that after determining the manhole to be a confjned space, she “asked the empluyees if they had had

2 zi~l)r u-g or information given to them about entering into the manholes, what procedures they might be following to look for hazards or any equipment that they might have for per=nd prom equipment” (Tr. 31).
She recommended as a means of abatement that the employer “should have a written program with procedures to follow so that they would make sure that their emplqees are trained” (Tr. 34). This would include having a trained person to evaluate potentially hawdous conditions and advise employees as to safety procedures and use of emergency equipment.
The underlying conditions complained of are similar to the conditions alleged to be violative of 29 C.F.R. 9 1926.21(b)(6)(‘ 1) in item 2 of the citation. The spe&ic standard states that:
All employees required to enter into confined or enclused spaces shall be instructed as to the nature of the hazards involved, the aecessary precautions to be taken, and in the use of protective and emergency equipment required.

The citation alleges that employees working in the manholes %ere not given training in potential hazards, precautions to be taken or in the use of protective and emergency equipment required prior to entering the confined space, on or about 2,#93.” The declared purpose of the Act is to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preseme our human resources. 29 U.S.C. 6 651(b). While the Act contemplates specific safety standards, its purposes are also effectuated by the general duty clause because it is obvious the Secretary cannot promulgate specific standards to protect employees from every conceivable hazardous condition.
Section 5(a)(l) was, therefore, intended by Congress to be used when there is no applicable specific standard. A specific standard takes precedence over the general duty clause. “[A] citation for a violation of 8 5(a)(l) is invalid and will not lie, where a duly promulgated occupational safety and health standard is applicable to the condition or practice that is alleged to constitute a violation of the Act.” Brisk Watqmomg Co., Ihc., 1 BNA OSHC 1263, 1264, 1973 CCH OSHD 1 16,345 (No. 104$1973). The Secretary charges T & S with the same allegedly hazardous condition. Such action is duplicative and against the policy of the Act. The alleged violation of 0 5(a)(l) is vacated.
meged Violation of 29 C.F.R. d 1926.21(bX61@

Ms. Hodenius testified that during the course of her inspection, she was informed by employees they had received no information or instruction regarding entry into confined spaces. While working in enclosed spaces, they were without knowledge as to what hazards to look for or precautions to take (‘Tr. 40).
T & S does not directly refute the allegations. White states that he had never heard of the term “confined space.” Also, he states that inspectors from the City of Fort Myers who visited the worksite regularly never spoke about their work in the manholes or mentioned any special safety procedures (Tr. 40, 89). He testified that employees are trained not to enter enclosed spaces without another employee being present. They are also instructed not to stand under the bucket which was being lifted out of the manhole in case the rope slipped or broke (Tr. 90).
T & S had not shown that instruction was provided as required by the standard. The evidence establishes the violation as alleged.

Alleged Violation of 29 C.F.R. #I 1926.5OON”

Section 1926.500@)(6) requires as follows:
Manhole floor openings shall be guarded by standard covers which need not be hinged in place. While the cover is not in place, the manhole opening shall be protected by standard railings.

Ms. Hodenius stated that the basis for the alleged violation was that she observed employees working in an open manhole. The cover was of&and there were no barricades around the manhole (E&s. C-9, C-10; Tr. 41).

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 The timmission has held that to establish a violation of a standard, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of it with the exercise of reasonable diligence. Skibel kfixiem Manufacturing& Welding Cbp, 15 BNA OSHC 1218,199l CCH OSHD 129,442, p. 39,678 (No. 88-821, 1991).
The evidence in this case fails to establish that the cited standard applies. T & S is charged under Subpart M, which pertains to floor and wall openings. The general provision states that it shall apply to “temporary or emergency conditions where there is danger of employees or materials falling through floor, roof or wall openings, or from stairways or runways.” There is no indication that T & S employees were in danger of fklling through any floor openings, or that they were of a temporary or emergency nature. The manholes were part of the permanent construction at the workite. Under the fkcts presented, the openings for the manholes cannot in anyway be considered floor openings within the context of the standard (Exhs. C-9, C-10). The standard does not apply to the facts in this case.

Alleged Violation of 29 C.F.R. S 1926.1053@u

The standard which pertains to the requirements for ladders states, in pertinent part, as follows:
When portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the upper landing surfaaceto which the ladder is used to gain access.

The citation alleges that the ladder used for access to the manhole extended only 24% inches above the upper landing surf&e. Ms. Hodenius testified she measured the ladder extending from the manhole to be 24 inches (Brh. C-9; Tr. 44).
White did not deny Ms. Hodenius’findings but only stated that when he was present, the ladder was tied off (‘II. 92-93). The standard was violated as alleged #Uleged Violation of 29 C.F.R. 4 1926.1060&Q

Section 1926.1060(a) requires that:
.
The employer shall provide a training program for each employee using ladders and stairways, as necessary. The program shall enable each employee to recognize hazards related to ladders and stairways, and shall train each employee in the procedures to be followed to rninimk these hazards.

The citation alleges that employees used ladders in an unsafe manner for manhole access, and latches on an extension ladder for pump station access were not secured.
Ms. Hodenius testified she was told by employees using the ladder for access to work in the manhole they had not received training in the use of ladders (T’r.444). White stated employees are trained to tie off ladders everytime a ladder is moved (T’r. 94). He does not deny that the ladder in the manhole was not secured at the top. Also, the evidence shows that an employee fell from an extension ladder that had slipped, resulting in a fatality. In explaining how the accident occurred, White stated that:
When the ladder started to slip, instead of just hanging onto the ladder--and the ladder would have just fell against the wall--he tried to jump off and grab the ledge above him. He did not grab the ledge, and he fell to the bottom. . .
There was nothing wrong with the ladder. The ladder is still in use. Like I say, had he just held onto the ladder, the ladder would have fallen against the inside wall, but it would have still stayed erect and he still would have stayed on it0 l l l

It is noted that White did not indicate the employee failed to secure the ladder or that he acted contrary to a training program. T & S does not show there was a training program as required. The evidence establishes the violation as alleged.

AllePed Rewat Violation of 29 C.F.R. S 1926.lWa)

Section 1926.100(a) provides as follows:
Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and bums, shall be protected by protective helmets.

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 The citation alleges that an employee was working inside the manhole placing mud in a five-gallon bucket which was raised overhead by a rope. Another employee at the top of the manhole was working next to and under the boom of a concrete dump truck. Neither employee was wearing head protection.
& H&mius testified she observed the foregoing conditions and explained the hazards presented by a falling bucket or failure of the overhead boom (Tr. 45-46).
The Secretary shows that a citation was previously issued T & S for violation of this standard on May 6, 1992. The citation was not contested (Exh. C-l; Tr. 1041). White acknowledges that the employees were not wearing hard hats at the time of the inspection. He explained that the employees invoived were obtained through a “personnel pooL” T & S had designated this as a “hard hat job,” and the employees were provided had protection by the pool and advised wearing hard hats were required (Tr. 83-84).
White stated that following the previous inspection, he was told that in the future he should have documentation showing employees were notified that the wearing of hard hats is required. This became part of the safety program (E&s. R-l, R-2; Tr. 85-87).
The stated purpose of the Act is “to assure safe and healthful working conditions for working men and women l l 0 l ” Section S(a)(2) requires that each employer shall comply with occupational safety and health standards promulgated under the Act. The standard at 8 1926.100(a) explicitly states that where there is possible danger of head injury,as shown in this case, employees “shall be protected by protective helmets.” Clearly, the efforts of T Bt S fall short of fblfibg its responsibility by the terms of this standard. The standard was violated as alleged.

Alleged Violation of 29 C.F.R. d 1904.8

This regulation requires the reporting of fatality or multiple hospitalization accidents.
It states, in pertinent part, as follows:
 Within 48 hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of Eve or more employees, the employer of any employees so injured or killed shall report the accident either orally or in writing to the nearest office of the Area Director of the Occupational Safety and Health Administration, U. S. Department of Labor.

Ms. Hodenius testified that the fatality in this case occurred on December 29,1992, and that her office was not notified until the first week of February 1993 (Tr. 23).
In its notice of contest, T & S states that 48 hours’notice is required only when there have been five or more fatalities or hospitalizations. White testified that he notified his insurance company and the appropriate state authorities who told him they would contact others who required notice (Tr. 19).
The standard specifically states what the employer shall report and when. There is no dispute that the requirements of the standard have not been met. The standard was violated as alleged.

Section 17(j) of the Act authorized the Commission to assess appropriate penalties after giving “due consideration” to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. Under section 17(a), a civil penalty may be assessed of not more than $10,000.
Upon consideration of the foregoing factors, appropriate penalties have been determined for the violations in this case.

FINDINGS OF FACI’ AND
CONCLUSIONS OF LAW

The foregoing decision constitutes the fMings of fact and conclusions of law in accordance with Federal Rules of Civil Procedure 52(a).

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 Based on the foregoing decision, it is hereby ORDERED that the citations by disposed of as follcws:
Citation for
Serious Violations Standard Dismsitioq Penaltv
Qs(a)(l) Vacated 0-
0 1926.21@)(6)(i) Affirmed s;ooo 9
9 l~*~oo@)o Vacated 0-
0 1926.1053(b)(l) Ammed s-400
5 1926.1060(a) Afbmed $800

’Citation for
Remat Violation Standard Dimosition Penalty

                            6 1926.100(a)        Affirmed        $2,800

Citation for
“Other” Than
Serious Violatioq

                            0 1904.8             Affirmed        Sl,ooo

/s/ Paul L Bradv
PAUL L BRADY
Judge

Date: March 31, 1994