KS Energy Services, Inc.

Plain-English summary

KS Energy Services installed a natural gas pipeline in a traffic-control zone along a Wisconsin county road with a 55 mph speed limit. The Commission found that the company failed to provide advance warning conveying highway conditions and how motorists should move through the work zone, as required by the OSHA standard incorporating the mandatory MUTCD provision. Employees operated equipment and moved materials in the blocked traffic lane, placing them within the zone of danger from approaching vehicles. The Commission rejected KS Energy's vagueness challenge because the rule was clear as applied and the foreman understood the normal signage requirements. It also rejected a due-process challenge to an end-of-hearing amendment because the company had consented and shown no prejudice. The serious citation and $875 penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.200(g)(2)
• Outcome: The serious traffic-control citation was affirmed, and a penalty of $875 was assessed.
• Key point: A work-zone warning must provide the required information in advance of the transition, and a foreman's familiarity with the normal sign layout can defeat a vagueness claim.

Full text (OSHRC public release)

KS Energy Service, Inc., Docket No. 06-1416

DATE:

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 06-1416

KS ENERGY SERVICES, INC.,

Respondent.

APPEARANCES:

Elizabeth S. Goldberg, Attorney; Michael P. Doyle, Counsel for Appellate Litigation; Joseph M.
Woodward, Associate Solicitor for Occupational Safety and Health; Jonathan Snare, Solicitor of
Labor; U.S. Department of Labor, Washington, DC  

For the Complainant

Charles B. Palmer, Esq. and Jason A. Kunschke, Esq.; Michael Best & Friedrich LLP,

Waukesha, WI  

For the Respondent

DECISION

Before: THOMPSON, Chairman; ROGERS, Commissioner.

BY THE COMMISSION:

STATEMENT OF THE CASE

In order to install an underground natural gas pipeline along a county road near Langes
Corners, Wisconsin, KS Energy Services, Inc. (“KS Energy”) created a temporary traffic control
zone (“traffic control zone” or “zone”) around its installation worksite and shared the zone with
Dorner Stahl (“Dorner”), a construction company working along the same section of road. On
May 25, 2006, in response to a complaint, Occupational Safety and Health Administration
(“OSHA”) Compliance Officer (“CO”) Kelly Bubolz conducted an inspection of the worksite
and the surrounding traffic control zone. As a result of the inspection, OSHA issued KS Energy
a citation under the Occupational Safety and Health Act of 1970 (“the Act”), 29 U.S.C. §§ 651-78, alleging a serious violation of 29 C.F.R. § 1926.200(g)(2), a “Signs, Signals, and Barricades”
standard which incorporates by reference a portion of the Federal Highway Administration

Manual on Uniform Traffic Control Devices (“MUTCD” or “manual”).

The citation, as
amended, alleges that KS Energy failed to protect its employees exposed to vehicular traffic by
not providing the “advance warning” to motorists required by section 6G.03 of the MUTCD.

KS Energy contested the citation, and the case was heard by Administrative Law Judge
Benjamin R. Loye pursuant to the Commission’s procedures for Simplified Proceedings.
29 C.F.R. pt. 2200, subpt. M. At the close of the hearing, the judge granted the Secretary’s
request to amend the citation to conform to the facts in evidence, which changed the cited
MUTCD provision from section 6G.02 to section 6G.03. The judge affirmed the amended
citation, and assessed the proposed penalty of $875. For the following reasons, we affirm the
judge.

ISSUES

At issue on review is a due process challenge by KS Energy based on its contention that
the MUTCD, and therefore the cited OSHA standard, are unconstitutionally vague, and its
contention that the Secretary’s end-of-hearing amendment to the citation deprived it of fair
notice. Also at issue is whether the judge erred in affirming a violation of § 1926.200(g)(2)
based on his finding that KS Energy failed to comply with applicable requirements set forth in
the MUTCD.

FINDINGS OF FACT

KS Energy and Dorner shared a single traffic control zone approximately a quarter-mile
long that blocked the eastbound lane and shoulder of a county road subject to a fifty-five mile
per hour speed limit. KS Energy placed signs and set up cones to direct traffic at the western
end of the traffic control zone, and Dorner placed signs and set up pylons at the eastern end of
the zone. Both companies used the entire length of the blocked-off eastbound lane and shoulder
for staging equipment, vehicles, and materials, which their employees routinely operated and
accessed during the course of their work.

At the commencement of her inspection, CO Bubolz approached the traffic control zone
by car from the western end, where she observed a “Utility Work Ahead” sign placed to the right
of the eastbound lane, approximately 150 feet before reaching an arrow sign and cones routing
eastbound traffic into the westbound lane. This re-routing moved westbound traffic onto the
shoulder to the north, entirely closing off both the existing eastbound lane and its shoulder to
traffic.

I. DUE PROCESS CHALLENGE

PRINCIPLES OF LAW

“A statute or regulation is considered unconstitutionally vague under the due process
clause of the Fifth or Fourteenth Amendments if it ‘forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at its meaning and differ
as to its application.’” Ga.-Pac. Corp. v. OSHRC , 25 F.3d 999, 1005 (11th Cir. 1994) (quoting
Connally v. Gen. Constr. Co. , 269 U.S. 385, 391 (1926)). An employer is entitled to “fair
notice” and “fair warning” of prohibited or required conduct and a “reasonably clear standard of
culpability . . . .” Diamond Roofing Co. v. OSHRC , 528 F.2d 645, 649 (5th Cir. 1976).
Vagueness is determined on an “as-applied” basis “in the light of [the standard’s] application to
the facts of the case.” Faultless Div., Bliss & Laughlin Indus., Inc. v. Sec’y of Labor , 674 F.2d
1177, 1185 (7th Cir. 1982).

With respect to the sufficiency of pleadings, due process requires that a cited employer
“be given notice and an opportunity to respond.” Sierra Res. Inc. v. Herman , 213 F.3d 989, 993
(7th Cir. 2000). If issues not raised by the pleadings are tried by the express or implied consent
of the parties, those issues are treated as raised in the pleadings. Fed. R. Civ. P. 15(b); see also
29 U.S.C. § 661(g) (Federal Rules of Civil Procedure applicable to Commission proceedings
unless Commission adopts different rule). “Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence . . . may be made upon motion by any party
at any time, even after judgment . . . .” Fed. R. Civ. P. 15(b). “In assessing whether the
pleadings should conform to the proof, the pivotal question is whether prejudice would result”
because the failure to originally plead the issue disadvantaged the opposing party in presenting
its case. N.Y. State Elec. & Gas Corp. v. Sec’y of Labor , 88 F.3d 98, 104-05 (2d Cir. 1996)
(citation omitted). In cases assigned to Simplified Proceedings, where pleadings are not
required, the Commission applies the Federal Rules of Civil Procedure when considering
whether a judge’s ruling on a motion to amend a citation was an abuse of discretion. Kokosing
Constr. Co. , 21 BNA OSHC 1629, 1631, 2005-06 CCH OSHD ¶ 32,838, p. 52,781 (No. 04-1665, 2006) (finding “nothing in the Commission’s procedural rules or past precedent” suggests
that federal rules concerning amendments change for cases using Simplified Proceedings),
enforced , 232 F. App’x 510 (6th Cir. 2007) (unpublished).

ANALYSIS

A.          Vagueness

KS Energy contends the MUTCD is vague with respect to “which warnings are required
under the circumstances,” and, therefore, the OSHA standard is deficient. In support of this
contention, KS Energy notes that the MUTCD is “full of words such as ‘should’ and ‘may,’” and
its “language [is] peppered throughout” with non-mandatory provisions.

The judge rejected this
argument as “completely without merit,” finding that KS Energy’s foreman, Chad Dallman,
understood the requirements of the relevant MUTCD provision, having admitted it was the
company’s usual practice to “deploy three signs on either side of its traffic control zones.”

KS Energy does not dispute that the cited OSHA standard clearly incorporates the
mandatory provisions contained in Part VI of the MUTCD. Ruhlin Co. , 21 BNA OSHC 1779,
1784, 2005-06 CCH OSHD ¶ 32,876, p. 53,189 (No. 04-2049, 2006) (indicating that mandatory
provisions of the MUTCD are incorporated as standards by § 1926.200(g)(2)). The MUTCD
provision at issue here, section 6G.03, is specifically designated a “standard” and is, therefore,
one of the mandatory provisions contained in Part VI. MUTCD, Introduction. Although KS
Energy relies on other non-mandatory provisions of the MUTCD that are merely “advisory” to
support its vagueness claim,

advisory provisions are not incorporated into the OSHA standard
and, therefore, provide no support for KS Energy’s position.

Id. ; Ruhlin Co. , 21 BNA OSHC at
1784, 2005-06 CCH OSHD at p. 53,189.

We also reject KS Energy’s contention that it “cannot be expected to know how it should
set up its traffic signs in a way that complies with the standard” because the term “advance
warning” is not defined in the MUTCD. As discussed below, the evidence here establishes that
at the western end of the traffic control zone, KS Energy provided one sign which conveyed only
one of the three categories of warning information required by section 6G.03.

In these circumstances, we conclude that the wording of section 6G.03 provided KS
Energy with sufficient notice of the types of information it must convey, and that this
information must be positioned at least some distance prior to the work space. Faultless ,
674 F.2d at 1185 (explaining that purported vagueness of a standard adjudged “in the light of
[the standard’s] application to the facts of the case”). Moreover, testimony from foreman
Dallman establishes that KS Energy understood the cited provision’s requirements as applied to
its zone. Indeed, Dallman had received MUTCD training and he testified it was KS Energy’s
“standard practice” to place three signs on each end of a “coned area” and the crew otherwise
complied with this practice during the course of the project. For these reasons, we reject KS
Energy’s vagueness challenge to § 1926.200(g)(2) and the incorporated MUTCD provision.

B.          Amendment of the Citation

KS Energy contends it lacked notice that section 6G.03 “was the standard at issue until
after the close of [the] evidence” and, therefore, it was denied due process when the judge
granted the Secretary’s end-of-hearing motion to amend the citation to conform to the evidence.
Prior to this amendment, the citation referenced section 6G.02, a section that merely defines
various work duration terms. According to the Secretary’s counsel, the amendment to section
6G.03 was necessary to establish the cited condition was “intermediate-term stationary” or,
alternatively, “short-term stationary.”

During the colloquy with the judge regarding the
amendment, KS Energy’s counsel requested clarification as to which MUTCD section provided
the basis for the citation, noting that the CO had relied on section 6G.03 in testifying about the
violation. The Secretary’s counsel explained that section 6G.03 was, in fact, the basis of the
citation because it was “the implementation” of the requirement. In response, KS Energy’s
counsel stated that “[i]f we’re just focused on [6]G.03, I’m fine with that.” The judge then
granted the Secretary’s request to amend the citation.

In these circumstances, we conclude the judge did not abuse his discretion in permitting
the Secretary to amend the citation to conform to the evidence at the close of the hearing. KS
Energy’s consent to the amendment, both at the hearing and in a follow-up letter to the judge,
obviates any due process infringement, and KS Energy has made no other specific claim of
prejudice on review. See, e.g. , Sw. Bell Tel. Co. , 6 BNA OSHC 2130, 2131-32, 1978 CCH
OSHD ¶ 23,187, p. 28,031 (No. 14761, 1978) (finding amendment proper when implied or
express consent is established).

Accordingly, we reject KS Energy’s due process challenge to
the Secretary’s end-of-hearing citation amendment.

II. ALLEGED Violation

PRINCIPLES OF LAW

To prove a violation of an OSHA standard, the Secretary “must show by a preponderance
of the evidence that (1) the cited standard applies, (2) there was noncompliance with its terms,
(3) employees had access to the violative conditions, and (4) the cited employer had actual or
constructive knowledge of those conditions.” Sw. Bell Tel. Co. , 19 BNA OSHC 1097, 1098,
2000 CCH OSHD ¶ 32,198, p. 48,746 (No. 98-1748, 2000), aff’d , 277 F.3d 1374 (5th Cir. 2001)
(unpublished).

To prove employee exposure, the Secretary must show that it is “reasonably predictable
either by operational necessity or otherwise (including inadvertence), that employees have been,
are, or will be in the zone of danger.” Kaspar Wire Works, Inc. , 18 BNA OSHC 2178, 2195,
2000 CCH OSHD ¶ 32,134, p. 48,417 (No. 90-2775, 2000), aff’d , 268 F.3d 1123 (D.C. Cir.
2001). Employees may be in the zone of danger “when they engage in activities in the course of
their assigned working duties, their personal comfort while on the job, or their normal means of
ingress and egress to their assigned workplaces.” Id. The zone of danger is “that area
surrounding the violative condition that presents the danger to employees which the standard is
intended to prevent.” RGM Constr. Co. , 17 BNA OSHC 1229, 1234, 1993-95 CCH
OSHD ¶ 30,754, p. 42,729 (No. 91-2107, 1995).

The Secretary establishes the knowledge element of her case by showing “the cited
employer knew, or with the exercise of reasonable diligence could have known, of the violative
condition.” Kokosing Constr. Co. , 21 BNA OSHC at 1631, 2005-06 CCH OSHD at p. 52,781.
The Commission has held that “the conspicuous location, the readily observable nature of the
violative condition, and the presence of [the employer’s] crews in the area warrant a finding of
constructive knowledge.” Kokosing Constr . Co ., 17 BNA OSHC 1869, 1871, 1993-95 CCH
OSHD ¶ 31,207, p. 43,723 (No. 92-2596, 1996). Additionally, constructive knowledge may be
found where a supervisory employee was in close proximity to a readily apparent violation.
Hamilton Fixture , 16 BNA OSHC 1073, 1089, 1993-95 CCH OSHD ¶ 30,034, p. 41,184 (No.
88-1720, 1993), aff’d , 28 F.3d 1213 (6th Cir. 1994) (unpublished).

ANALYSIS

The Secretary alleges KS Energy violated the cited OSHA standard because it failed to
provide adequate “advance warning” of the work space. 29 C.F.R. § 1926.200(g)(2)
(incorporating MUTCD section 6G.03). The judge affirmed the violation, finding the evidence
established the Secretary’s allegation. On review, KS Energy argues the cited MUTCD
provision was not applicable to the traffic control zone and, in any event, the Secretary did not
prove noncompliance with its terms, employee exposure to the cited condition, or employer
knowledge thereof.

A.          Applicability

The advance warning prescribed by section 6G.03 of the MUTCD applies to a “work
space” located “within the traveled way.” The manual defines “work space” as “that portion of
the highway closed to road users and set aside for workers, equipment, and material,” and
defines “traveled way” as “the portion of the roadway for the movement of vehicles, exclusive of
the shoulders, berms, sidewalks and parking lanes.” MUTCD §§ 1A.13(87), 6C.06.

KS Energy argues that its work space was limited to the off-road pipeline installation
area and, therefore, its work space was not within the traveled way. We disagree. The CO’s
unrebutted testimony establishes that in addition to the off-road pipeline installation area, KS
Energy employees worked inside the blocked-off eastbound traffic lane, as well as the shoulder,
where they operated machinery, moved pipes, and where the company stored its equipment.
Under these circumstances, we find KS Energy’s “work space” included the blocked-off portion
of the roadway and, therefore, the work space was located within the “traveled way.”

By its terms, the cited MUTCD provision does not apply to work classified as “short-duration” or a “mobile operation[].” MUTCD § 6G.03. Although KS Energy contends its work
on this project satisfies the criteria of these two exceptions, the evidence fails to substantiate its
claim. Kaspar Electroplating Corp. , 16 BNA OSHC 1517, 1522, 1993-95 CCH
OSHD ¶ 30,303, p. 41,761 (No. 90-2866, 1993) (“party claiming the benefit of an exception to
the requirements of a standard has the burden of proof of its claim”). The MUTCD defines
“short duration” as “work that occupies a location up to 1 hour.” MUTCD § 6G.02. Foreman
Dallman testified that KS Energy could have completed its work in one day, which would clearly
exceed the one-hour limit of “short duration” work. In fact, as Dallman explained, the crew
spent at least three hours working at the installation location before the CO began her inspection
and returned to work “[f]or the duration” of the next day. Moreover, there is no evidence that
KS Energy’s crew changed location or moved the traffic control zone during this time. Based on
this testimony, we conclude KS Energy failed to establish that its work was of “short duration.”

With respect to whether work is “mobile” under the MUTCD, the manual provides that
such work “moves intermittently or continuously” and might “often involve frequent short
stops.” MUTCD § 6G.02. Again, the evidence shows that KS Energy’s work remained
stationary for two days—the day of the inspection and the next day. Although the CO testified
that KS Energy’s work space was “moving continuously down a road,” she was describing the
workers’ movement within the stationary quarter-mile traffic control zone. Thus, we find KS
Energy failed to establish that its work was “mobile.” Accordingly, we conclude the cited
MUTCD provision was applicable to the conditions in KS Energy’s traffic control zone.

B.          Noncompliance

The cited MUTCD provision requires an employer to provide advance warning that
conveys three categories of information: (1) “a general message that work is taking place,”
(2) “information about highway conditions,” and (3) “how motor vehicle traffic can move
through the temporary traffic control zone.” MUTCD § 6G.03. The judge, in part, found KS
Energy failed to comply with this provision because there was only one sign providing advance
warning to eastbound motorists. On review, KS Energy argues it provided advance warning that
complied with all requirements of section 6G.03 at the western end of the traffic control zone,

At the western end of the traffic control zone, KS Energy erected one sign warning of
“Utility Work Ahead” approximately 150 feet in front of the traffic cones that directed
eastbound traffic into the westbound lane. The CO acknowledged this sign conveyed “a general
message that work is taking place,” the first category of information required by section 6G.03.

Immediately after the beginning of the coned area in the blocked-off eastbound lane, KS
Energy placed a straight-arrow sign pointing traffic to follow the cones to the left. Regardless of
whether this sign satisfied the MUTCD’s second requirement to supply information on highway
conditions, it was not located in “advance” of the transition area as required by section 6G.03.
See, e.g. , MUTCD § 6C.04 & fig. 6C-1 (“advance warning area” provides information about
“upcoming work zone”); MUTCD § 6C.05 (advance warning area separate from the ensuing
“transition area” where “road users are redirected out of their normal path”); MUTCD § 6F.15
(advance warning should be well in advance of roadway obstructions or closures); s ee supra
note 8 and cases cited therein. In these circumstances, we find the arrow sign failed to satisfy
the requirement to provide “advance warning” of the work space by supplying information about
the highway conditions.

Finally, KS Energy contends the two sets of cones creating the lane shift properly
conveyed the third category of required information, “how motor vehicle traffic can move
through the temporary traffic control zone.” Assuming arguendo that channelizing devices, such
as cones, are permissible to convey the information required for advance warning, an issue we
need not reach, we note the CO testified that the cones used here created an “immediate”
transition into the oncoming traffic lane and motorists “went straight from one lane to another.”
KS Energy’s work space began immediately at that point of transition and was contiguous to the
lane shift created by the cones. Based on these facts, we find the cones failed to provide the
required information in “advance” of the work space.

MUTCD § 6G.03. Accordingly, we find
KS Energy failed to comply with the cited standard on the western end of the zone.

C.          Exposure

The judge found KS Energy’s employees “moved within the zone of danger to access
their vehicles,” demonstrating exposure. KS Energy argues the Secretary failed to offer any
evidence showing its employees were in the danger zone. We disagree. The evidence shows
that KS Energy’s employees operated machinery and moved equipment throughout the
blocked-off eastbound traffic lane. Although the CO testified that “the majority of [the
employees’] time is spent by the shoulder where the excavations were,” she observed KS Energy
employees in the blocked-off traffic lane “mov[ing] pipe back and forth.” With respect to the
potential for injury, the CO testified that “[w]ithout having that [fifty-five mile per hour speed
limit] reduced and proper signage to let the drivers know what they’re doing, they could very
well drive straight through that site before they realized they were on top of it.” Indeed, Dallman
admitted to the CO that he wished law enforcement had been present to force approaching traffic
to slow down. Based on this evidence, we find the record establishes KS Energy’s employees
were exposed to the violative condition.

D.          KNOWLEDGE

The judge found KS Energy “knew[] or could have known of the cited violation” because
foreman Dallman “knew there should have been additional signs.” Dallman was continuously
present at the quarter-mile-long traffic control zone while his crew worked for approximately
three hours in the zone of danger. Dallman contended that he did not inspect or observe the
signage at either end of the traffic control zone, but he knew about the tapering of the cones at
the transition. In addition, the signage was in plain view and remained unchanged throughout
this time. In these circumstances, we find that with the exercise of reasonable diligence,
Dallman could have known of the violative condition. Accordingly, we find that constructive
knowledge is established. Kokosing Constr. Co. , 21 BNA OSHC at 1631, 2005-06 CCH OSHD
at p. 52,781 (imputing foreman’s constructive knowledge to employer).

CONCLUSIONS OF LAW

Based on the foregoing analysis, we conclude the cited OSHA standard and MUTCD
provision provided constitutionally sufficient notice to KS Energy of its compliance obligations,
and the judge properly granted the Secretary’s end-of-hearing request to amend the citation. We
also conclude the cited standard was applicable to the alleged conditions of the traffic control
zone and the Secretary established a serious violation of § 1926.200(g)(2).

ORDER

We affirm Citation 1, Item 1, and assess a penalty of $875.

SO ORDERED.

/s/                                                                     

Horace A. Thompson III

Chairman

/s/                                                                     

Thomasina V. Rogers

Commissioner

Dated: July 14, 2008

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 06-1416

KS ENERGY SERVICES, INC.

Respondent .

APPEARANCES:

For the Complainant:

Leonard A. Grossman, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago, Illinois

For the Respondent:

Charles B. Palmer, Esq, Michael Best & Friedrich LLP, Attorneys at Law, Waukesha, Wisconsin

Before:              Administrative Law Judge: Benjamin R. Loye

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, KS Energy Services, Inc. (KS), was installing
gas pipeline along County Road R in Lang̓s Corner, Wisconsin. Because construction is in a class of
activity which as a whole affects interstate commerce it is established that KS is an employer engaged
in a business affecting commerce, and is subject to the requirements of the Act. Clarence M. Jones
d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No. 77-3676, 1983).

On May 25, 2006, in response to a complaint, the Occupational Safety and Health
Administration (OSHA) initiated an inspection of the KS worksite (Tr. 12). As a result of its inspection,
OSHA issued a citation alleging violation of §1926.200(g)(2) of the construction standards. By filing a
timely notice of contest KS brought this proceeding before the Occupational Safety and Health Review
Commission (Commission). Pursuant to a telephone conference, the citation was amended prior to the
hearing. The hearing was held in Milwaukee, Wisconsin on February 9, 2007. The complaint was
amended again at hearing to conform to the evidence (Tr. 139, 142, 154). The amended complaint
appears in Complainant̓s

post-trial brief. Briefs have been submitted on the issues, as amended, and this matter is ready for
disposition.

Alleged Violation of §1926.200(g)(2)

Serious Citation 1, item 1 alleges:

29 CFR 1926.200(g)(2): All traffic control signs or devices used for the protection of construction
workers did not conform to Part VI of the Manual for Uniform Traffic Control Devices, Millennium
Edition, December 2000 edition.

a) At the site, 13 employees working on Cty. Rd. R, exposed to vehicular traffic, where signs
(i.e., Road Work Ahead, Shoulder Work, Lane Closed Ahead, Road Narrows) were not used for the
duration of work (long term stationary: i.e., work that occupies a location more than three days, or in
the alternative, intermediate-term stationary; i.e., work that occupies a location more than one daylight
period up to three days or nighttime work lasting more than one hour; or short-term stationary; i.e.,
daytime work that occupies a location for more than one hour, but less than twelve hours) and for the
speed limit 55 mph. (sign spacing: initial warning 500 ft. shifting taper 330 ft., and buffer zone 335 ft.).

Among other feasible and acceptable abatement to correct this hazard include the proper
placement of advance warning signage and channelizing devices. These abatement methods are
discussed in detail in Part VI, Chapter G, Section 6G-02 of the MUTCD 2000 Millennium Edition.

Section 1926.200(g)(2) provides:

All traffic control signs or devices used for protection of construction workers shall

conform to Part VI of the Manual of Uniform Traffic Control Devices (AMUTCD). . . or

Part VI of the Manual on Uniform Traffic Control Devices, Millennium Edition,
December

2000....

FACTS

On May 25, 2006, Compliance Officer Kelly Bubolz responded to a written complaint about an
alleged traffic hazard on County Road R (Tr. 12). After leaving the interstate and traveling
approximately fourteen miles east on County Road R, Bubolz reached a construction site (Tr. 13-14).
Two employers, KS and Dorner Stahl were working in the area (Tr. 38). A single sign “Utility Work
Ahead” was placed on the right hand side of the road approximately 150 feet before the site (Tr. 14;
Exh. C-i). A north/south road intersected County Road R between the sign and worksite. Immediately
west of the intersection a cone zone had been established, routing eastbound traffic into the westbound
lane and westbound traffic onto the shoulder to the north (Tr. 18; Exh. C-2). Half way through the
worksite, eastbound, directional arrows and a “35 MPH” sign had been placed (Tr. 21, 25; Exh. C-6, C-7, C-8, C-b). Bubolz drove through the site and continued east on County Road R for approximately
two miles before turning around and approaching the site in the westbound lane (Tr. 15). There was no
signage in advance of the

construction site alerting west bound traffic of the upcoming lane reconfiguration (Tr. 15). At the east
entrance to the worksite, a number of signs, including “Road Narrows”, “Road Construction”, “35
MPH” and two directional arrows competed for motorists̓ attention (Tr. 19; Exh. C-4, C-l1). Bubholz
photographed excavators and a dump truck working close to, and coming out into the reconfigured
eastbound lane midway through the worksite (Tr. 20, 34; Exh. C-5, C-9; C-12, C-13). There was no
flagger to stop oncoming traffic (Tr. 26). The speed limit on County Road R is 55 MPH (Tr. 13).

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: (a) the applicability of the cited standard, (b) the employer̓s
noncompliance with the standard̓s terms, (c) employee access to the violative condition, and (d) the
employer̓s actual or constructive knowledge of the violation (i.e., the employer either knew, or with
the exercise of reasonable diligence could have known, of the violative condition). Atlantic Battery Co.,
16

BNA OSHC 2131, 1994 CCH OSHD ¶30,636 (No. 90-1747, 1994).

The relevant portion of the Manual on Uniform Traffic Control Devices (MUTCD), is Section
6G.03, which states:

The choice of temporary control needed for a temporary traffic control zone depends on where
the work is located. As a general rule, the closer the work is to road users, the greater the number of
temporary traffic control devices that are needed. Procedures are described later in this Chapter for
establishing temporary traffic control zones...

Standard:

When the work space is within the traveled way, except for short-duration
and mobile operations, advance warning shall provide a general message that work
is taking place, shall supply information about highway conditions, and shall
indicate how motor vehicle traffic can move through the temporary traffic control
zone .

Applicability/Exposure . The standard is applicable. CO Bubolz testified that employees in the
closed traffic lane (Tr. 35-36, 38) were exposed to oncoming traffic (Tr. 39, 72). According to Bubolz,
drivers traveling 55 mph could drive straight into the closed lane before they realized they were upon it
(Tr. 39). In its brief Respondent argues KS was not actually laying pipe within the “traveled way,” and
had blocked off the street merely to make room to park its vehicles.

In order to show employee exposure, the Secretary must prove that employees have been, are,
or will be in zones of danger during either their assigned working duties, their personal comfort
activities while on the jobsite, or their movement along normal routes of ingress to or egress from their
assigned workplaces. Kaspar Electroplating Corp., 16 BNA OSHC 1517, 1521, 1993 CCH OSHD
¶30,303, p. 38,886, (No. 86-0274, 1993). Clearly, accessing its trucks and excavators is crucial to the
completion of

KS̓ pipe-laying operation. Because KS employees necessarily moved within the zone of danger to
access their vehicles, KS had a work space within the traveled way (Tr. 72; Exh. C-3), making the cited
standard applicable.

Noncompliance . It is clear on this record that there were was only a single sign “Utility Work
Ahead” on east bound County Road R providing advance warning. There were no signs providing
motorists with information about the condition of the highway or indicating how motor vehicle traffic
can move through the temporary traffic control zone. The signage on west bound County Road R
provided information, but was not placed so as to give advance warning of conditions to motorists.

Tables 6H- 1, 6H-3 and diagram TA-li of the MUTCD suggest that, at a minimum, three signs
with 500 feet between each sign be placed in advance of a construction zone on a two-lane rural road
with a speed limit of 55 mph (Tr. 55-56, 62-68). Respondent argues that 6H-i, 6H-3 and TA-il are
optional, rather than mandatory guidelines, and that KS was improperly cited for failing to comply with
their requirements. KS was not cited for violating 6H-1, 6H-3 and TA-il, however. The citation alleges
a violation of 29 CFR § 1926.200(g)(2), which incorporates the mandatory requirements contained in
6G.03. The record clearly shows that KS failed to comply with 6G.03, in that there were no signs
providing advance warning of road conditions on west bound County Road R. Only one sign providing
advance warning was in place on east bound County Road R, and it was inadequate to meet 6G.03̓s
requirements because it did not provide information about highway conditions or instruct motorists
how to move through the temporary traffic control. KS failed to comply with the terms of the cited
standard.

Knowledge . Chad Dallman, the project foreman for KS, knew there should have been
additional signs, and testified that it was the company̓s standard practice to put up three signs on each
end of their coned area (Tr. 123, 132). Dallman did not set the signs up personally, however, and could
not refute the testimony or photographic evidence establishing that the east bound signage was missing
(Tr. 123, 133). Dallman further testified that he believed the other contractor on the site, Dorner Stahl,
was handling the signage on west bound County Road R (Tr. 134). However, he knew that KS was
responsible for both ends of the traffic control zone and stated he would have placed the appropriate
signage on the west bound approach if he had realized it was not in place (Tr. 134). Dallman admitted
that he did not inspect that side of the traffic control zone (Tr. 134). KS knew, or could have known of
the cited violation.

Vagueness. KS argues that the cited standard is unconstitutionally vague in that it fails to
provide employers with fair warning of what conduct is required to avoid citation, citing Diamond
Roofing v. OSHRC, 528 F.2d 645 (5th Cir. 1976). KS maintains that the mere size of the MUTCD,
which contains

over 1000 pages, including numerous optional suggestions for complying with its mandatory
provisions, makes it impossible for employers to identify whether warning signage has been properly
deployed.

Respondent̓s argument is completely without merit. KS̓ project foreman knew what signage
was required, and claimed it was the usual practice of KS to deploy three signs on either end of its
traffic control zones, just as is required by the MUTCD. Dallman could not explain why the east bound
signs were not in place on the date of the OSHA inspection, however, it is clear from his testimony that
he knew the signage should have been there. The west bound violative conditions resulted directly from
Dallman̓s failure to adequately inspect the worksite and ensure Dorner Stahl̓s signage conformed
with KS̓s normal practice. In light of Dallman̓s testimony, KS may not argue that it could not have
known what the MUTCD required.

Due Process . Respondent̓s due process argument must also fail. The amendments to the
citation (in italics above) pertain only to the length of work being performed, and do not affect the
requirements of §6G.03. That section applies whenever the employer̓s work space is within the
traveled way, except for short-duration and mobile operations. KS does not claim to have been engaged
in short-duration or mobile operations. The same required advance warning signs are mandated for
long, intermediate and short term work. That the Secretary originally overstated the amount of time the
traffic control zone was in place did not prejudice Respondent in the preparation of its defense.

The Secretary has proved the cited violation.

Penalty . A penalty of $875.00 was proposed for this item. KS has approximately 100
employees, thirteen of whom were present at the Lang̓s Corner worksite (Tr. 71). The gravity of this
violation is high, because the employees were working within an inadequately signed traffic control
area on a heavily traveled road with a speed limit of 55 mph (Tr. 70, 72-73). Though employees were in
the roadway only intermittently, had one been struck by a vehicle moving 55 mph, death or serious
injury could have resulted. The proposed penalty takes into account KS̓ good history and safety
program (Tr. 71). The proposed penalty will be assessed.

Findings of Fact

All findings of fact relevant and necessary to a determination of all issues have been made
above. Fed. R. Civ. P. 52(a). All proposed findings of fact inconsistent with this decision are hereby
denied.

Conclusions of Law

1. KS Energy Services, Inc. is engaged in a business affecting commerce and has employees
   within the meaning of Section 3(5) of the Act.

2. KS Energy Services, Inc., at all times material to this proceeding, was subject to the
   requirements of the Act and the standards promulgated thereunder. The Commission has
   jurisdiction of the parties and of the subject matter of this proceeding.

3. At the time and place alleged, KS Energy Services, Inc. was in violation of 29 CFR
   § 1926.200(g)(2), and said violation was serious within the meaning of the Act.

ORDER

1. Serious citation 1, item 1, alleging violation of §1926.200(g)(2) is AFFIRMED, and the
   proposed penalty of $875.00 is ASSESSED.

/s/

Benjamin R. Loye

Judge, OSHRC

Dated: May 3, 2007