CH2M Hill, Inc., f/k/a CH2M Hill Central, Inc.
Forty willful tunnel electrical violations yield $200,000
Apply this to your situation
This order from 1998 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
CH2M Hill provided engineering and program-management services for a Milwaukee wastewater tunnel project. After methane ignited in a tunnel explosion that killed three employees of the tunneling contractor, OSHA cited CH2M for unapproved electrical equipment and nonreversible ventilation. The Commission had already held that the construction standards applied to CH2M and remanded the case to decide the alleged violations. The judge found that CH2M knew the tunnel was a Class I, Division 2 hazardous location, initially required approved equipment, and then knowingly narrowed that requirement despite continuing methane evidence. Forty equipment items were affirmed as willful at $5,000 each, while four equipment items and the ventilation item were vacated for insufficient proof. Two other items had been withdrawn, leaving a total penalty of $200,000.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.407(b); 29 C.F.R. § 1926.800(l)(1); 29 C.F.R. § 1926.800(c)(2)(i)
- Outcome: Forty willful electrical-equipment items affirmed, five items vacated, and two withdrawn; $200,000 total penalty assessed.
- Key point: An engineering manager's decision to relax explosion-protection requirements despite known methane conditions supported willful, instance-by-instance violations.
Full text (OSHRC public release)
:
SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC Docket No. 89-1712
:
CH2M HILL, INC., :
f/k/a CH2M HILL CENTRAL, INC., :
Respondent. :
:
Appearances:
Kevin Koplin, Esquire Robert C. Gombar, Esquire
Office of the Solicitor Arthur G. Sapper, Esquire
U. S. Department of Labor McDermott, Will & Emery
Chicago, Illinois Washington, D.C.
For Complainant For Respondent
Francis R. Croak, Esquire
Kevin J. Lyons, Esquire
Steven L. Nelson, Esquire
Cook & Franke, S.C.
Milwaukee, Wisconsin
For Respondent
Before: Administrative Law Judge Nancy J. Spies
DECISION AND ORDER
On April 21, 1997, the Review Commission reversed the administrative law judge’s
decision in the captioned case and remanded it to the undersigned for further proceedings.1 The
Review Commission disagreed with Judge Brady’s determination that the Construction Standards
found in Part 1926 of the Act did not apply to CH2M Hill Central, Inc. (CH2M), an engineering
firm.2 Because the Review Commission has ruled that the Part 1926 Construction Standards do
apply to CH2M, it now must be determined whether CH2M violated the cited standards.
1
Judge Paul L. Brady issued the decision in this case on September 14, 1993. Judge Brady retired in
1997, and the remanded case was assigned to Judge Nancy J. Spies.
2
CH2M petitioned the Court of Appeals for the Seventh Circuit for review of the Review Commission’s
order remanding this case. On December 16, 1997, the Court of Appeals dismissed Hill’s petition for want of
jurisdiction. CH2M Hill Central, Inc. v. Heiman, 1997 WL 769187 (7th Cir. 1997).
The Secretary issued a citation to CH2M following an explosion on November 10, 1988,
in an underground tunnel project in Milwaukee, Wisconsin, in which three workers were killed.
The Secretary charged CH2M with 47 willful violations of the Act. The Secretary withdrew item
1 prior to the hearing (Tr. 6-7). The Secretary later withdrew item 18 as duplicative of item 17.
Items 2 through 17 and 19 through 46 allege willful violations of § 1926.407(b), as adopted by
§ 1926.800(l)(1), which appears in Subpart K and provides in pertinent part:
Electrical installations. Equipment, wiring methods, and
installations of equipment in hazardous (classified) locations shall
be approved as intrinsically safe or approved for the hazardous
(classified) location or safe for the hazardous (classified location).
Section 1926.800(l)(1) requires that “[e]lectrical equipment shall conform to the
requirements of Subpart K of this part.” The Secretary contends that the tunnel in which the
explosion occurred was a Class I, Division 2, hazardous location in which approved equipment
was required to be installed. Each of the 44 items (items 2-17 and 19-46) cites a specific piece of
unapproved equipment that was present in the tunnel.
Item 47 alleges a willful violation of § 1926.800(c)(2)(i), which provides:
Tunnels shall be provided with mechanically induced primary
ventilation in all work areas. The direction of the air flow shall be
reversible.
Background3
The Milwaukee Metropolitan Sewage District (MMSD) is a quasi-public regional agency
responsible for sewage treatment and solid waste disposal for a 400-square-mile area consisting of
Milwaukee and 26 adjacent communities. The MMSD initiated the Water Pollution Abatement
Project (Project) because it was required by the Clean Water Act and court orders to eliminate
discharges of untreated waste into the watershed, particularly Lake Michigan, during wet
weather.
The Project consisted of numerous tunnels, shafts, sewers, and other systems that collect
and convey both storm drainage and sewerage to two wastewater treatment plants. The MMSD
3
The background information in this case is almost a decade old and has been thoroughly documented.
The following section is taken from the background sections in the decisions of Judge Brady and the Review
Commission.
contracted with S. A. Healey, a tunneling contractor, to construct a two-mile long tunnel
identified as crosstown tunnel number seven (CT-7). The MMSD contracted with hundreds of
other contractors for the construction of the Project.
Because of the complexity of overseeing the Project, the MMSD changed the management
approach it had used previously in other projects. The MMSD selected CH2M, an environmental
engineering firm, to provide services for the program. In order to oversee the Project, CH2M
established the Program Management Office (PMO). CH2M retained other engineering firms to
help with the administration of the Project.
The MMSD had contracted with tunnel contractor Jay-Dee Contractors, Inc. (Jay-Dee),
to complete the tunnel designated CT-8, which was located approximately one mile east of CT-7.
On April 30, 1987, Jay-Dee encountered methane while drilling pre-construction soil borings.
Jay-Dee filed a claim for a Differing Site Condition (DSC) with the MMSD to cover the costs of
additional safety measures (Exh. C-23; Tr, 513-514, 663, 1583, 1597-1599). Jay-Dee hired
Testing Service Corporation to investigate the methane problem (Tr. 663-665). CH2M hired
Engineering Science, a Pasadena, California, engineering consulting firm, to investigate the
methane problem at the CT-8 site (Tr. 525). The MMSD granted Jay-Dee’s request for a DSC
and executed a contract modification for Jay-Dee’s contract (Exh. C-33; Tr. 675-676).
After Jay-Dee’s contract was modified, the MMSD asked the PMO to modify the bidding
contracts for the other contractors on the Project. This was in accordance with Task Order 189
which specified that the MMSD could “[a]uthorize preparation of Contract Modifications and
provide administrative approval of Contract Modifications upon completion by the ENGINEER”
(Exh. C-54).
The contract modification included the following section (Exh. C-107):
M. Tunnel Equipment
All electrical motors, accessories and installations and electrical
equipment in the shafts and tunnels shall conform with Class I,
Division 2, requirements of Subpart K, OSHA Standards 29 C.F.R.
§ 1926, published 1987.
The MMSD reviewed the contract modification and authorized its issuance. CH2M
forwarded the contract modification to Healy on April 5, 1988 (Exh. C-33).
On May 2, 1988, Healy sent a letter to the CT-7 resident engineer Chuck Kennedy
requesting a clarification of section “M. TUNNEL EQUIPMENT” of the contract modification
regarding certain equipment it planned to use in CT-7 (Exh. C-35; Tr. 2161). On May 5, 1988,
John Ramage, the head of CH2M’s geotechnical group, responded with a handwritten
clarification which stated (Exh. C-37):
Only electrical gear associated with the mining machine is required
to meet Class I, Division 2, requirements. Healy’s existing
locomotives meet the intent of the specs. He should be reminded
that the locomotive must be equipped with portable methane
monitors.
Healy should also furnish information from Lovat concerning the
mining equipment. Assuming the confirmation is positive, nothing
else is required for this contract.
On June 6, 1988, Healy reported to CH2M that it had “largely complied with [CH2M’s]
requirements, with the exception of the main ventilation fan.” Healy also provided an evacuation
plan “to be followed in the Event of Methane Being Encountered in the Tunnel” (Exh. R-48).
On Monday, November 7, 1988, Healy’s tunnel boring machine (TBM) experienced a
shutdown in the CT-7 tunnel due to methane. Healy’s employees were evacuated. Fifteen to
thirty minutes later, they were told that the methane had dissipated and to return to work (Tr.
212-215). On November 10, 1988, Healy’s TBM experienced a second shutdown in the CT-7
tunnel. Healy’s employees were again evacuated. The evacuation plan called for the supervisor
to “order the shutdown of all non-essential equipment in the tunnel” (Exh. C-48). This was not
done. Healy’s evacuation plan provided that (Exh. R-48):
At the end of one hour, or one hour after the last positive reading
for methane, the supervisor, in the company of two other
individuals, should re-enter the tunnel, checking for methane as he
advances. If the indications are that the level of methane has fallen
to a safe level, he may order the work to re-start.
Contrary to Healy’s evacuation plan, Healy foreman Tony Bell and Healy employees
Ronald Coyne and Richard Sahacke re-entered the CT-7 tunnel after only 17 minutes (Tr. 13).
The methane in CT-7 ignited, causing an explosion that killed the three Healy employees.4
CH2M’s Defenses
CH2M raised a number of defenses at the hearing, in addition to the defense rejected by
the Review Commission which has occasioned this remand. CH2M contends that it did not
violate the terms of the cited standards, but it also raises three preliminary defenses:
1. Approved electrical equipment would not have been required by OSHA’s
new tunneling standard. Any violation was, therefore, de minimis;
2. Section 1926.407 does not apply to naturally-occurring concentrations of
flammable gases; and
3. Section 1926.407 does not afford fair notice of its obligations, especially in
the tunneling context. It is, therefore, so vague as to violate the due
process clause of the fifth amendment.
These defenses will be addressed in turn:
(1) Approved Electrical Equipment Would Not Have Been Required
By OSHA’s New Tunneling Standard
CH2M argues that OSHA’s revised § 1926.800 underground construction standard, which
became effective on August 1, 1989 (nine months after the CT-7 explosion), would not have
required approved equipment. CH2M contends that if the revised standard had been operative at
the time of the explosion, the equipment in CT-7 would have been in compliance with the
standard. CH2M claims that it would be unfair to find a violation of a standard when the
equipment was in compliance with a later revised standard. CH2M contends that OSHA’s current
tunneling standard is proof that CH2M exercised sound engineering judgment at the time of the
explosion.
4
The Secretary issued a citation containing 68 items to Healy for willful violations of the Act. In
addition, both Healy and its project manager were indicted for criminal violations under section 17(e) of the Act.
Healy was convicted in a jury trial. United States v. S. A. Healy, Case No. 90-Cr-123 (E. D., Wisc. 1991).
Charges against the project manager were dismissed on the ground that liability under the Act extends only to
employers. United States v. Doig, 950 F. 2d 411 (7th Cir. 1991). The Commission rejected Healy’s contention
that the imposition of civil penalties would violate its constitutional right not to be held in double jeopardy, but that
decision was reversed on appeal. S. A. Healy Co. 17 BNA OSHC 1145 (No. 89-1508, 1995), rev’d, 96 F. 3d 906
(7th Cir. 1996), cert. granted, 1997 WL 71439 (U. S. Dec. 15, 1997) (No. 96-1299).
The issue of whether the portions of the revised underground construction standard,
§ 1926.800, that deal with electrical hazards preempt the general electrical standard for
construction, § 1926.407(b), has been settled by the Review Commission. In McNally
Construction & Tunneling Co., 16 BNA OSHC 1879 (No. 90-2337, 1994), aff’d 71 F.3d 208
(6th Cir. 1995), the Commission affirmed Judge Brady’s decision vacating a citation alleging a
violation of § 1926.407(b). The Commission stated:
Having examined the text and structure of the two standards, we
hold that the provisions of sections 1926.407 and 1926.449 are
preempted by the provisions of section 1926.800. We reach this
conclusion not only because section 1926.800 addresses the same
hazards as section 1926.407 but also because these two standards
set forth conflicting requirements, rather than complementary ones,
as the Secretary contends. . . . If an employer simultaneously
complied with the two standards at issue here, it would not only be
taking different steps to abate the same hazard, but section
1926.407 would effectively preempt section 1926.800.
Id. at 1882. The Commission’s holding was reiterated in McNally’s companion case, KM &M, A
Joint Venture, 16 BNA OSHC 1886 (No. 89-3403, 1994).
Had the revised version of §1926.800 been in effect at the time of the CT-7 explosion, it
would have preempted § 1926.407(b), which CH2M was charged with violating.5 CH2M argues
that it would be unfair to find it in violation of § 1926.407(b) when, if the explosion had occurred
nine months later, § 1926.800 would have preempted § 1926.407(b), and CH2M would have
been in compliance with the operative standard. In support of its contention, CH2M cites
Clifford B. Hannay & Son, Inc., 6 BNA OSHC 1335 (No. 15983, 1978).
In Hannay, the Review Commission affirmed as de minimis a violation of §
1910.107(c)(6), which had been cited by the Secretary as serious. Section 1910.107(c)(6)
required electrical wiring and equipment located in a spraying area to be approved for Class I,
Division 2, hazardous locations. The standard defined hazardous locations as being within 20 feet
of the spraying area. While Hannay conceded that it had violated the terms of § 1910.107(c)(6),
it argued that it was in compliance with the applicable requirements of the National Electric Code,
NFPA, 70-1975 (1975 NEC), which defined hazardous locations as being within 5 feet of the
5
“Section 1926.407 describes spark-proof equipment as ‘approved.’ Section 1926.800 refers to such
equipment as ‘accepted.’” McNally, 16 BNA at 1882, footnote 10.
spraying area. Hannay presented the testimony of an inspector for the New York Board of Fire
Underwriters, who stated that no hazard was posed by the location of the spraying booths in
relation to the unapproved electrical equipment. The Commission held:
Although the Commission cannot elect to enforce the 1975 NEC
provision because it has not been promulgated by the Secretary as
an OSHA standard, that provision constitutes an expert opinion
that no hazard exists requiring that electrical equipment more than
5 feet from a spray booth equipped with an interlocking system be
approved for Class I, Division 2, hazardous locations.
Id. at 1337.
Hannay can be distinguished from the present case. In Hannay, the 1975 NEC provisions
were presumably operative at the time Hannay was cited for violating § 1910.107(c)(6). The
timing of the citation with respect to the enactment of the 1975 NEC provisions was not at issue,
whereas the timing of the citation in relation to the enactment of the revised § 1926.800 standard
is crucial in the present case. At the time of the investigation of the CT-7 explosion, from which
the citation resulted, § 1926.407(b) was the only OSHA standard that mandated the requirements
for electrical equipment in the CT-7 tunnel. This is not a case where an employer was confronted
with two conflicting standards.
The revised § 1926.800 did not become law and did not preempt § 1926.407(b) until after
CH2M was cited for violating § 1926.407(b). This tribunal’s concern is with the standards that
were in effect at the time of the alleged violation. The fact that a subsequently enacted standard
may have altered the requirements for the electrical equipment used in underground construction
does not relieve an employer of its obligation to comply with the currently operative standard.
Sound engineering judgment at the time of the explosion would have taken into account the
OSHA standards then in effect.
Furthermore, it would be inappropriate to reclassify the violations as de minimis. “A de
minimis violation is one having no direct or immediate relationship to employee safety; normally,
that classification is limited to situations in which the hazard is so trifling that an abatement order
would not significantly promote the objectives of the Act.” Dover Electric Co., 15 BNA OSHC
1378, 1382 (No. 88-2642, 1991). In the present case, three employees were killed when the
unapproved equipment in the CT-7 tunnel ignited the methane. This is not a “trifling” hazard.
CH2M’s defense is rejected.
(2) Section 1926.407 Does Not Apply to Naturally-Occurring
Concentrations of Flammable Gases
CH2M contends that § 1926.407 applies in tunnels only to the storage, use, and handling
of man-made concentrations of flammable gases, such as those in gas cylinders. Section
1926.407(a) defines the scope of § 1926.407:
This section sets forth requirements for electric equipment and
wiring in locations which are classified depending on the properties
of the flammable vapors, liquids or gases, or combustible dusts or
fibers which may be present therein and the likelihood that a
flammable or combustible concentration or quantity is present.
Section 1926.407 is “part of Subpart K, which sets general electrical standards for
employees involved in construction work. It is not specifically directed at tunnels. There are six
hazardous (classified) locations, comprised of Classes I through III, each with Divisions 1 and 2.”
McNally, 16 BNA at 1881. The definitions of these locations are found in §1926.449. Section
1926.449(b)(2) defines a Class I, Division 2, location as a location:
In which ignitible concentrations of gases or vapors are normally
prevented by positive mechanical ventilation, and which might
become hazardous through failure or abnormal operations of the
ventilating equipment[.]
At the time of the explosion, Subpart O of the Construction Standards governed
underground construction operations. Section 1926.800(l)(1) provides:
Electrical equipment shall conform to the requirements of Subpart
K of this part.
Section 1926.407 is found in Subpart K. Thus, while § 1926.407 is not specifically
directed at tunnels, the tunneling standards expressly incorporate the electrical requirements of
Subpart K and apply them to electrical equipment used in underground construction. The
incorporation of Subpart K by § 1926.800(l)(1) anticipates the possibility of naturally-occurring
concentrations of flammable gases. Section 1926.407 applies to naturally-occurring
concentrations of flammable gases, as well as to man-made concentrations of flammable gases.
(3) Section 1926.407 Does Not Afford Fair Notice Of Its Obligations, And
Is So Vague As To Violate Due Process
CH2M argues that the definitions in § 1926.449 of “Class I, Division 1” and “Class I,
Division 2” do not give employers sufficient information to classify locations. The Review
Commission has twice upheld the language at issue in this case, in Continental Oil Co., 11 BNA
OSHC 2114 (No. 79-570-E, 1984) and Asamera Oil (U.S.), Inc., 11 BNA OSHC 2118 (No. 79-
949, 1984). Those cases dealt with the definitions of Class I, Divisions 1 and 2, at § 1910.399,
which are almost identical to the definitions of Class I, Divisions 1 and 2, at § 1926.449. In
Continental, the Commission stated that it “will not declare a standard unenforceably vague
merely because the wording is not exact or because it requires the employer to exercise some
judgment” and concluded that the cited standard was not unenforceably vague. 11 BNA at 2117.
Section 1926.449 is not unenforceably vague.
CH2M raises an additional defeense in its Supplemental Post-Hearing Brief filed after the
remand of this case. CH2M argues that § 1926.407 is an invalid standard, based on Andrew
Catapano Enterprises, 17 BNA OSHC 1776 (No. 90-50, 1996). In Catapano, the Review
Commission held that, when interpreting a broad regulation, “[t]he Secretary must show more
than the mere possibility of or a potential for injury, but a ‘significant risk of harm.’” Id at 1783.
The Commission noted that “significant risk may be shown by evidence of injury rates, expert and
lay opinion testimony, evidence of industry custom and practice.” Id.
In the present case, the Secretary has established that the methane in CT-7 presented a
significant risk of harm. CH2M recognized the risk and took steps to abate it. Section 1926.407
is a valid standard.
The Citation
Items 2 through 17 and 19 through 46: Alleged Willful Violations of § 1926.407(b)
as Adopted by § 1926.800(l)(1)
The Secretary charges CH2M with 44 instances of willfully violating § 1926.407(b), as
adopted by § 1926.800(l)(1). As noted previously in this decision, § 1926.800(l)(1) requires that
electrical equipment used in the tunnel shall conform to the requirements of Subpart K of the
standards. Subpart K (in §1926.407(b) and § 1926.449) requires that only approved electrical
equipment be used in areas determined to be hazardous locations within the meaning of the
standard.
The Secretary has the burden of proving his case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the
applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s 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 conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). The elements of proof
will be analyzed in turn.
(a) Applicability of the Cited Standard
CH2M argues that § 1926.407(b) does not apply to the CT-7 tunnel because the tunnel
was not a Class I, Division 2, location.6 Section 1926.449(b)(2) defines such a location as one
“in which ignitible concentrations of gases or vapors are normally prevented by positive
mechanical ventilation, and which might become hazardous through failure or abnormal
operations of the ventilating equipment.” Ignitible concentrations of methane had been detected
in the CT-7 tunnel prior to the explosion (Exhs. C-14, C-16, C-17, C-24, C-28, C-33, C-38, C-
43, C-46; Tr. 1153-1161)7. Section 1926.407(b) applies to the CT-7 tunnel.
(b) Employer’s Noncompliance with the Standard’s Terms
Clete Stephan, principal mining engineer for the Department of Labor, Mining Safety and
Health Administration (MSHA), testified that the pieces of electrical equipment cited in items 2
through 17 and 19 through 46 of the citation were not explosion-proof and were not permissible
within the meaning of the MSHA standard (Tr. 377-422, 426-427, 490-491). Compliance officer
6
It is noted, but not relied on in this decision, that the classification of the CT-7 tunnel was also an issue
in the criminal trial of S. A. Healy Co. The jury in the criminal trial determined that the CT-7 tunnel was a
Class I, Division 2, hazardous location, and that Healy violated § 1926.407(b). United States v. S. A. Healy, Case
No. 90-Cr-123 (E. D., Wisc. 1991).
7
This evidence will be elaborated on in section (d), “Employer Knew of the Violative Condition,” supra.
Patrick Ostrenga testified that, with the exception of the telephone system, none of the electrical
equipment in the CT-7 tunnel was approved for Class I, Division 2, locations (Tr. 1138).
Ostrenga’s broad testimony that all the electrical equipment was unapproved, taken with
Stephan’s specific testimony that the individual pieces of equipment were not explosion proof
establishes that the electrical equipment was not in compliance with § 1926.407(b). The
Secretary has established that the electrical equipment in the CT-7 tunnel was not approved for
that location, in violation of § 1926.407(b)’s terms.8
(c) Employee Exposure and Employee Access to the Violative Condition
Employees of CH2M entered the CT-7 tunnel on a routine basis (Tr. 519, 792-794, 818-
820). CH2M employees Phio Santacroce and John Ramage had actual and access exposure to
CT-7 (Tr. 794).
PMO employees Chuck Kennedy and Barry Doyle entered CT-7 on a regular basis. Doyle
was in CT-7 the week before the explosion, taking pictures. CH2M created and controlled PMO
to manage the project. PMO’s supervisors were CH2M employees. Employees of PMO were
employees of CH2M. CH2M’s employees had access to CT-7 and were exposed to its unsafe
conditions. Healy’s crew of 8 to 10 employees worked daily in the CT-7 tunnel (Tr. 199-201).
These employees had access to the violative condition of the tunnel.
(d) Employer Knew of the Violative Condition
Jay-Dee began construction on the project at the CT-8 tunnel, located approximately one
mile east of the CT-7 tunnel. In April 1987, Jay-Dee encountered methane while drilling a test
boring. Jay-Dee informed CH2M of this encounter (Tr. 51-515). As a result of this information,
CH2M investigated “the other collector system jobs that were within the Memomonee River
Valley,” including the CT-7 tunnel (Tr. 1608-1609).
CH2M hired Engineering Science, an engineering consulting group, to research the
methane at the CT-8 tunnel. Barry Doyle, a geotechnical engineer for the PMO (the office
created by CH2M), wrote to Engineering Services on September 24, 1987, on the PMO’s
letterhead, in which CH2M’s name is prominently featured. Doyle stated in the letter that the
8
Four of the cited items of electrical equipment were not proved to be explosion proof, and are vacated.
The specific factual findings with regard to each item are given in the “Penalty Determination” section of this
decision.
Project “is looking for assistance in evaluating the possible effect of methane gas on soft ground
tunnel construction in the Milwaukee area . . . [Jay-Dee] has expressed concern that methane gas
may be present in greater concentrations than originally anticipated” (Exh. C-10; Tr. 524-526).
Doyle testified that the PMO hired Engineering Science because the PMO “was not skilled in
performing underground investigations towards methane gas” (Tr. 531).
Engineering Science began its study of the methane situation in the fall of 1987 and issued
a report in December 1987 entitled “CT-8 Collector Methane Gas Subsurface Investigation.” The
report concluded that methane was present in the groundwater along the CT-8 collector route
(Exh. C-14). In its cover letter accompanying the report (addressed to Barry Doyle), Engineering
Science stated (Exh. C-14):
The heterogenous configuration of the subsurface along the CT-8
collector alignment allows for gas transport along seams and thin
strats which may not be detected by borings at spacings of several
hundred feet. Consequently, there is a risk of methane gas at
explosive concentrations throughout the area.
The PMO contacted Dr. James Monsees, a geotechnical engineer, and requested that he
use Engineering Service’s findings to provide a “constructibility evaluation” for the Project
(Exh. C-12). The PMO outlined the scope of the proposed constructibility evaluation (Exh. C-12,
Attachment No. 1):
The constructibility evaluation should interpret the results of the ES
[Engineering Science] study as they relate to tunnel construction.
The interpretation should be presented in a manner to allow the
construction contractor to develop for himself safe and efficient
means of dealing with the amounts and concentrations of gas that
may be present.
Provide for the following items in performing the evaluation:
...
• Develop, in a general manner, reasonable and alternative means of reducing
gas concentrations in the tunnel to acceptable levels.
...
• Provide information and recommendations relative to mining equipment
compliance with industry standards for potentially gassey tunnels.
• Provide for CH2M Hill review and comment on a draft copy of the
constructibility evaluation.
• Evaluate, in conjunction with ES, the need for additional field investigation
of gas concentrations at four other CSO tunnel sites.
The CT-7 tunnel is one of the “four other CSO tunnel sites” (Tr. 531).
On January 12, 1988, Dr. Monsees sent a letter to Doyle that was “an early evaluation and
preliminary summary of our findings and recommendations relating to the methane gas found
along the CT-8 tunnel” (Exh.. C-17).
Based on his investigation, Dr. Monsees stated that his premises were (Exh. C-17, p. 2):
• Gas concentrations of 100% must be assumed.
• Locations of gas concentrations cannot be predicted.
• Where uncertainties exist, we must select the conservative alternative.
• All involved must remain alert and be prepared to adjust to conditions as
they are encountered in the field.
Dr. Monsees’s recommendations included the following (Exh. C-17, p. 4):
• Main exhaust fan lines, operating on pull, to be located as near the machine
as possible. Auxiliary fans on the machine to move forward with the
machine and to be overlapped by the main exhaust fan lines.
...
• Transformers to be located on the surface whenever possible.
Transformers in tunnel to be permissible -- preferably Class I, Division 1,
per National Electric Code, Chapter 5, Article 500 -- Hazardous locations.
Minimum of Class I, Division II.
• Existing lighting in tunnel is not permissible -- to be replaced.
CH2M had previously discovered methane along the CT-7 tunnel alignment in the early
1980s when researching the construction site (Exh. C-46, p. 9; Tr. 509-512). Doyle
acknowledged at the hearing that “the ground and the geologic conditions within that ground
[are] substantially similar between CT-8 and CT-7” (Tr. 649). On February 16, 1988, the MMSD
sent a memo to “All Commissioners” regarding the methane found in the CT-8 tunnel. The memo
states “the PMO has been requested to identify other collector system projects which have the
geology conducive to forming methane. Once identified, changes will be made to contract
specifications directing minimum requirements for ventilation, electrical equipment, and
monitoring procedures for potentially gasy tunnels” (Exh. C-23).
On February 16, 1988, CH2M met with Healy regarding methane at the CT-7 tunnel
(Tr. 847-850). Representatives of CH2M at the meeting included John Ramage, head of the
geotechnical group, Phil Santacroce, the project construction manager, and Chuck Kennedy, the
resident engineer. Pat Doig, Healy’s project manager for the CT-7 tunnel, represented Healy
(Exh. C-24, C-66). Kennedy’s notes from the meeting state (Exh-24): “Changes are anticipated
to consist primarily of increased tunnel ventilation, additional monitoring points for air, and
emergency plan for evacuation of personnel. The need for explosion-proof electrical components
will be researched by [CH2M].” Healy wrote to Kennedy on March 30, 1988, stating (Exh.
C-31):
We refer to recent meetings in which the possibility of methane
being encountered in the tunnel was raised by yourselves. Our
understanding of your position was that you expected to issue a
modification to the contract that would require certain items of
tunnel equipment, specifically the TBM and ventilation fans, to
have motors constructed to standards more stringent than currently
required . . . .
As tunnel construction is now underway, we are in the
process of installing equipment that may fall within the revised
specifications. In order that no delays should result from the need
to obtain equipment different from or additional to that currently in
hand, we urge you to issue direction, if it is still your intention to do
so, at the earliest possible opportunity.
On April 5, 1988, CH2M issued contract modifications to Healy addressing numerous
safety issues, including conversion of all electrical equipment to meet Class I, Division 1 and/or 2
specifications (Exhs. C-33, C-66). The contract modification, drafted by CH2M’s Ramage,
included the following section (Exh. C-107):
M. Tunnel Equipment
All electrical motors, accessories and installations and electrical
equipment in the shafts and tunnels shall conform with Class I,
Division 2, requirements of Subpart K, OSHA Standards 29 C.F.R.
§ 1926, published 1987.
Kennedy of CH2M and Doig of Healy met regarding the requirements for the electrical
equipment. On May 2, Doig wrote to Kennedy asking for clarification regarding the electrical
equipment (Exh. C-35):
We refer to your transmittal dated 4-5-88 concerning modifications
to tunnel equipment that will be required . . .
We are currently assessing which pieces of equipment need
to be replaced and what additional equipment is required . . .
In order that we may fully comply with your directions we
require clarification of paragraph M - Tunnel Equipment . . . .
We have other equipment in the tunnel that may not meet
the requirements of paragraph M, notably a Haney grout pump,
welders, lasers, a portable compressor and the communications
system.
Our understanding of the meetings held to discuss these
changes was that certain pieces of equipment would be exempt
from this requirement. If the equipment mentioned above is
intended to comply, we shall need your confirmation thereof as
soon as possible . . . .
CH2M responded with a clarification on May 9, 1988. Ramage stated in the memo that
(Exh. C-37):
The clarification of ¶ M -- Tunnel Equipment is that only electrical
gear associated with the mining machine is required to meet Class I,
Division 2 requirements. Healy’s existing locomotives met the
intent of the specs . . . Healy should also furnish confirmation from
Lovat concerning the mining equipment. Assuming the
confirmation is positive, nothing else is required for this contract.
CH2M continued to investigate the presence of methane in CT-8. Testing consistently
revealed that ignitible dangerous concentrations of methane existed in the area (Exhs. C-28, C-38,
C-84, C-94). A reasonable person familiar with the history of CT-7 and CT-8 would have
required the use of approved equipment in CT-7.
On November 7, 1988, Healy’s employees were working in the CT-7 tunnel (Tr. 211,
888). At some point, the alarm on the TBM sounded and the TBM shut down. The TBM was
designed to shut down when it encountered 10% lower explosive limit (LEL) of explosive gas in
the atmosphere. A hand held meter displayed a reading of 20% LEL methane (Tr. 213). Healy’s
employees walked to the shaft area of the tunnel, but did not evacuate to the surface (Tr. 215).
Doig called Kennedy of CH2M and told him that “the mining machine had automatically
shut down because they had encountered levels of methane at least 20% LEL” (Tr. 888).
Kennedy informed Phil Santacroce of this incident (Tr. 888). Kennedy also noted the incident in
his daily log report (Exh. C-43).
On November 10, 1988, Healy’s employees were using the TBM in the CT-7 tunnel when
it shut down again. The hand-held meter read 13% LEL methane (Tr. 236). The percentage of
the reading increased as Healy’s employees watched it (Tr. 236-237). Healy’s employees
evacuated the tunnel but re-entered it a short time later (Tr. 13). The methane ignited, causing an
explosion that killed three of Healy’s employees.
Clete Stephan of MSHA investigated the explosion. He estimated that 350 cubic feet of
methane accumulated in the CT-7 tunnel on November 10 (Tr. 343). Stephan concluded that the
cause of the explosion was the attempted operation of the Haney grout machine by one of the
employees who re-entered the CT-7 tunnel (Tr. 367-368). As previously noted, Healy had
informed CH2M in its May 2, 1988, letter that the grout machine was not Class I, Division 2,
approved.
The evidence is overwhelming that CH2M knew that the CT-7 tunnel was a Class I,
Division 2, hazardous location and that the electrical equipment used by Healy in the tunnel was
not approved. Indeed, it was CH2M who inexplicably instructed Healy that only the mining
equipment needed to meet the § 1926.407(b) requirements.
The Secretary has established that CH2M violated § 1926.407(b) as adopted by
§ 1926.800(l)(1).
Willfulness
The Secretary charges that the 45 (items 2-17 and 19-46) violations of § 1926.407(b) are
willful.
A willful violation of the Occupational Safety and Health Action of
1970, 29 U.S.C. §§ 651-678 (“the Act”), is one committed with an
“intentional, knowing or voluntary disregard for the requirements of
the Act or with plain indifference to employee safety.” L. E. Myers,
16 BNA OSHC 1037, 1046, 1993-95 CCH OSHD ¶ 30,016, p.
41,132 (No. 90-945, 1993) (quoting Williams Enterp., 13 BNA
OSHC 1249, 1256, 1986-87 CCH OSHD ¶ 27,893, p. 36,589
(No. 85-355, 1987). “It is differentiated from other types of
violations by a “heightened awareness -- of the illegality of the
conduct or conditions -- and by a state of mind -- conscious
disregard or plain indifference.” General Motors Corp., Electro-
Motive Div., 14 BNA OSHC 2064, 2068, 1991-93 CCH OSHD ¶
29,240, p. 39,168 (No. 82-630, 1991) (consolidated). A violation
is not willful if an employer had a good faith belief that the violative
condition conformed to the requirements of the Act. The test of
good faith is an objective one, that is, “whether the employer’s
belief concerning the factual matters in question was reasonable
under all the circumstances.” Morrison-Knudsen Co./Yonkers
Contracting Co., 16 BNA OSHC 1105, 1124, 1993-95 CCH
OSHD ¶ 30,048, p. 41,281 (No. 88-572, 1993).
Pentecost Contracting Corp.,17 BNA OSHC 1953, 1955 (No. 92-3788, 1997).
CH2M knew that the OSHA standards required approved equipment in the CT-7 tunnel.
Kennedy’s notes from the February 16, 1988, meeting between Healy and CH2M state “the need
for explosion-proof electrical components will be researched by [CH2M]” (Exh. C-24). The
contract modification issued by CH2M on April 5 required the electrical equipment to “conform
with Class I, Division 2, requirements of Subpart K, OSHA Standards 29 C.F.R. § 1926,
published 1987.”
The fact that CH2M researched the issue and initially required approved electrical
equipment in the CT-7 tunnels demonstrates CH2M’s heightened awareness of the illegality of its
later “clarification.” CH2M inexplicably withdrew its requirement of approved electrical
equipment. John Ramage, who drafted the contract modification and its subsequent
“clarification,” was in a supervisory position with CH2M.
In establishing that an employer knew of the Act’s requirements
and knowingly disregarded them, the knowledge and conduct of a
supervisory employee may be imputed to the employer for purposes
of finding that the violation was willful . . . . Thus, willful conduct
by an employee in a supervisory capacity constitutes a prima facie
case of willfulness against his or her employer.
L. R. Willson and Sons, Inc., 17 BNA OSHC 2059, 2063 (No. 94-1546, 1997).
CH2M’s inaction constitutes an intentional, knowing, and voluntarily disregard for the
requirements of the Act. The violations are properly classified as willful.
Penalty Determination
Instance-by-Instance Penalties
CH2M argues that it is “unlawful and inappropriate” for the Secretary to seek to impose
separate penalties for each piece of unapproved electrical equipment that was in the CT-7 tunnel.
The Commission has held that separate penalties may be proposed and assessed for separate
violations of a single standard. See Caterpillar, Inc., 15 BNA OSHC 2155 (No. 87-922, 1993)
and J. A. Jones Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 1993). “The test of
whether the Act and the cited regulation permits multiple or single units of prosecution is whether
they prohibit individual acts, [or whether they prohibit] a single course of action.” Caterpillar, 15
BNA at 2172. Section 1926.407(b) refers to “[e]quipment, wiring methods, and installations of
equipment.”
The Commission has held in S. A. Healy, 17 BNA OSHC 1145 (No. 89-1508, 1995),
aff’d on other grounds, U.S. Sup.Ct., No. 96-1299, December 15, 1997, that instance-by-instance
penalties are appropriate in circumstances such as the present one.
Penalty Assessment in Accordance with J. A. Jones
In J. A. Jones, the Commission held that where, as here, the Secretary proposes penalties
on an instance-by-instance basis, the penalty assessment must be based on specific factual findings
relating to the penalty assessment criteria for each individual assessment. 15 BNA at 2213-2214.
Section 17(j) of the Act . . . requires that in assessing penalties, the
Commission must give “due consideration” to four criteria: the size
of the employer’s business, gravity of the violation, good faith, and
prior history of the violations . . . . These factors are not necessarily
accorded equal weight, generally speaking, the gravity of the
violation is the primary element in the penalty assessment . . . . The
gravity of a particular violation, moreover, depends upon such
matters as the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood
that any injury would result.
15 BNA at 2214 (citations omitted).
The record does not disclose the exact size of CH2M, but it establishes that CH2M is “the
largest firm of its kind in the country” and “employs thousands of individuals” (Exh. C-50(c)(2),
pp. 6-7). CH2M has no history of prior violations of the Act. No evidence of bad faith on the
part of CH2M was presented.
The gravity of each of the 44 items is high. The hazard created by the use of unapproved
electrical equipment was the ignition of methane and the explosion in the tunnel. The relevant
factors are identical for each item. In addition to the CH2M employees who periodically entered
the CT-7 tunnel, between 8 and 10 Healy employees worked in the CT-7 tunnel on a daily basis
(Tr. 199-201). The duration of the exposure was from September 1988, when Healy began work
on the north tunnel, to November 10, 1988, when the explosion occurred (Tr. 199). Precautions
were not taken with regard to the unapproved equipment. The likelihood that any injury would
result was great, given that repeated testing had revealed that methane was present. Each of the
pieces of the unapproved equipment was capable of igniting the methane in the CT-7 tunnel. The
gravity of the violation is exacerbated by CH2M’s knowledge of the two shutdowns of the TBM
on November 7 and 10, which CH2M ignored. CH2M’s culpability is mitigated somewhat in that
it shared responsibility for employee safety with Healy. Healy was the contractor on the project
who had actual hands-on experience with tunnel construction. It is determined that a penalty of
$5,000.00 per item is appropriate. Following are the specific factual findings regarding each item
of equipment in relation to the penalty assessment. The descriptions of the pieces of equipment
are quoted from the citation:
Item 2
Piece of equipment: “motor controller panel which was located at the upper left
front of the mole and was missing four bolts.”
Evidence relied upon: Stephan observed the motor controller panel and
determined that it was not explosion proof (Exh. C-127; Tr. 374, 377-378).
Penalty: $5,000.00
Item 3
Piece of equipment: “standard male and female connectors in the mole at
segment 489+.”
Evidence relied upon: Stephan observed the standard male and female connectors
in the mole and determined that they were not explosion proof (Exh. C-128;
Tr. 379-380).
Penalty: $5,00.00
Item 4
Piece of equipment: “lighting device located at segment 489+.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 380-381).
Penalty: $5,000.00
Item 5
Piece of equipment: “job built connector that was intended to allow a non-
permissible plug to get power on a Class 1 rated outlet at segmet 489+ in the mole
electrical equipment.”
Evidence relied upon: Stephan observed the job build connector and determined
that it was not explosion proof (Tr. 381-382).
Penalty: $5,000.00
Item 6
Piece of equipment: “control transformer for the forward sump pump at segment
489+.”
Evidence relied upon: Stephan observed the control transformer and determined
that it was not explosion proof (Tr. 382).
Penalty: $5,000.00
Item 7 - (Vacated)
Piece of equipment: “small sump pump at the face.”
Evidence relied upon: Stephan observed the sump pump but could not “recall the
specifics” in order to determine whether it was explosion proof (Tr. 382-383).
Thus, no determination can be made that it was unapproved.
Vacated with no penalty assessed.
Item 8
Piece of equipment: “lighting device located at segment 487.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 384).
Penalty: $5,000.00
Item 9
Piece of equipment: “lighting device located at segment 486.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 384-385).
Penalty: $5,000.00
Item 10
Piece of equipment: “standard 120 volt male electrical plug located at segment
483.”
Evidence relied upon: Stephan observed the standard 120 volt male electrical plug
and determined that it was not explosion proof (Tr. 385).
Penalty: $5,000.00
Item 11
Piece of equipment: “lighting device socket located at segment 483.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Exh. C-129; Tr. 385-387).
Penalty: $5,000.00
Item 12
Piece of equipment: “300 watt lighting device, which has an attached outdoor
outlet with a broken cover, located at segment 482.”
Evidence relied upon: Stephan observed the 300 watt lighting device and
determined that it was not explosion proof (Tr. 387-388).
Penalty: $5,000.00
Item 13
Piece of equipment: “lighting device located at segment 482.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 388).
Penalty: $5,000.00
Item 14
Piece of equipment: “laser located at segment 481.”
Evidence relied upon: Stephan observed the laser and determined that it was not
explosion proof (Exhs. C-130, C-132; Tr. 388-390).
Penalty: $5,000.00
Item 15
Piece of equipment: “grease pump control cable (16 \ 4 SO) with exposed copper
conductors which was located at segment 481.”
Evidence relied upon: Stephan observed the grease pump control cable and
determined that it was not explosion proof (Tr. 391-392).
Penalty: $5,000.00
Item 16
Piece of equipment: “Haney grout pump remote switch located at segment 480.”
Evidence relied upon: Stephan observed the Haney grout pump remote switch and
determined that it was not explosion proof (Tr. 393-394).
Penalty: $5,000.00
Item 17
Piece of equipment: “lighting device located at segment 479.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 394).
Penalty: $5,000.00
Item 19
Piece of equipment: “lighting device located at segment 478.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 395).
Penalty: $5,000.00
Item 20
Piece of equipment: “power supply for the laser located at segment 478.”
Evidence relied upon: Stephen observed the power supply for the laser and
determined that it was not explosion proof (Tr. 395-396).
Penalty: $5,000.00
Item 21
Piece of equipment: “Haney grout pump (with meter and control box) located at
segment 477.”
Evidence relied upon: “Stephan observed the Haney grout pump and determined
that it was not explosion proof (Exh. C-134; Tr. 396-397).
Penalty: $5,000.00
Item 22
Piece of equipment: “sump pump, which pumped into the <mop’line, located at
segment 476.”
Evidence relied upon: Stephan observed the sump pump and determined that it
was not explosion proof (Tr. 398).
Penalty: $5,000.00
Item 23
Piece of equipment: “lighting device located at segment 475.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 398-399).
Penalty: $5,000.00
Item 24
Piece of equipment: “lighting device located at segment 474.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 399).
Penalty: $5,000.00
Item 25
Piece of equipment: “flasher light on the Goodman electric locomotive located at
segment 472.”
Evidence relied upon: Stephan observed the flasher light and determined that it
was not explosion proof (Tr. 399-400).
Penalty: $5,000.00
Item 26
Piece of equipment: “goodman electric locomotive located at segment 472.”
Evidence relied upon: Stephan observed the Goodman electric locomotive and
determined that it was not explosion proof (Exh. C-135; Tr. 400-401).
Penalty: $5,000.00
Item 27
Piece of equipment: “lighting device located at segment 471.”
Evidence relied upon: “Stephan observed the lighting device and determined that
it was not explosion proof (Exh. C-136; Tr. 401-403).
Penalty: $5,000.00
Item 28
Piece of equipment: “electrode drying oven located at segment 470.”
Evidence relied upon: Stephan observed the electrode drying oven and determined
that it was not explosion proof (Tr. 403).
Penalty: $5,000.00
Item 29
Piece of equipment: “Lighting device located at segment 469.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 404).
Penalty: $5,000.00
Item 30
Piece of equipment: “lighting device located at segment 464.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 404-405).
Penalty: $5,000.00
Item 31
Piece of equipment: “conveyor light and control panel (located on the conveyor
structure at segment 461) which was not sealed from the tunnel atmosphere.”
Evidence relied upon: Stephan observed the conveyor light and control panel and
determined that it was not explosion proof (Tr. 405).
Penalty: $5,000.00
Item 32
Piece of equipment: “440 breaker panel located at segment 459.”
Evidence relied upon: Stephan observed the 440 breaker panel and determined
that it was not explosion proof (Tr. 406).
Penalty: $5,000.00
Item 33
Piece of equipment: “110/208 breaker panel located at segment 459.”
Evidence relied upon: Stephan observed the 110/208 breaker panel and
determined that it was not explosion proof (Tr. 406-407).
Penalty: $5,000.00
Item 34
Piece of equipment: “high voltage (7.2 ku) transformer located at segment 459.”
Evidence relied upon: Stephan observed the high voltage transformer and
determined that it was not explosion proof (Exh. C-137; Tr. 407-409).
Penalty: $5,000.00
Item 35 (Vacated)
Piece of equipment: “high voltage (7.2 ku) connector located at segment 458.”
Evidence relied upon: Stephan observed the connector but could not make a
determination that it was not explosion proof (Tr. 409).
Vacated with no penalty assessed.
Item 36
Piece of equipment: “lighting circuit connector located at segment 458.”
Evidence relied upon: Stephan observed the lighting circuit connector and
determined that it was not explosion proof (Tr. 409-410).
Penalty: $5,000.00
Item 37 (Vacated)
Piece of equipment: “Powcon welder located at segment 457.”
Evidence relied upon: Stephan could not recall observing this welder (Tr. 410).
Vacated with no penalty assessed.
Item 38
Piece of equipment: “standard male plug for the supplemental lighting circuit
located at segment 457.”
Evidence relied upon: Stephan observed the plug and determined that it was not
explosion proof (Exh. C-138; Tr. 410-411).
Penalty: $5,000.00
Item 39
Piece of equipment: “SO cord with a bare end located at segment 456.”
Evidence relied upon: Stephan observed the SO cord and determined that it was
not explosion proof (Exh. C-139; Tr. 413-414).
Penalty: $5,000.00
Item 40
Piece of equipment: “standard lighting device located at segment 455.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 414-415).
Penalty: $5,000.00
Item 41 (Vacated)
Piece of equipment: “supplemental vent fan located at segment 453, which was
not energized with a standard locking plug.”
Evidence relied upon: Stephan could not recall what determination he made
regarding whether this fan was explosion proof (Tr. 415-416).
Vacated with no penalty assessed.
Item 42
Piece of equipment: “standard locking plug located at segment 453.”
Evidence relied upon: Stephan observed the plug and determined that it was not
explosion proof (Exh. C-141; Tr. 418-420).
Penalty: $5,000.00
Item 43
Piece of equipment: “non-permissible battery operated lighting device located at
segment 458.”
Evidence relied upon: Stephan observed the lighting device and determined that it
was not explosion proof (Tr. 420-421).
Penalty: $5,000.00
Item 44
Piece of equipment: “small power panel located at the end of the trailing gear.”
Evidence relied upon: Stephan observed the power panel and determined that it
was not explosion proof (Tr. 421).
Penalty: $5,000.00
Item 45
Piece of equipment: “Bosch hand drill (Model Number 0611 207 534 US, Serial
Number 7510001) located at the end of the trailing gear.”
Evidence relied upon: Stephan observed the drill and determined that it was not
explosion proof (Tr. 422).
Penalty: $5,000.00
Item 46
Piece of equipment: “2 sets of 7.2 ku. male and female main power line
connectors, the 16 sets of male and female lighting system power connectors, and
the 138 lighting devices in the light stringer located from the end of the trailing
geara to the shaft.”
Evidence relied upon: Stephan observed the power line connectors and
determined that they were not explosion proof (Exh. C-142 and C-143; Tr. 422-
425).
Penalty: $5,000.00
Item 47: Alleged Willful Violation of § 1926.800(c)(2)(i)
Section 1926.800(c)(2)(i) provides:
Tunnels shall be provided with mechanically induced primary
ventilation in all work areas. The direction of the air flow shall be
reversible.
The citation alleges that “the supplemental fan at the face of the mouth tunnel was not
capable of providing reversible airflow.” The evidence regarding this fan was vague and
inconclusive (Tr. 922-924; 1535-1537). The Secretary has failed to prove that the air flow in the
tunnel was not reversible. Item 47 is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that the 47 items of the
citation be disposed of as follows:
Item Disposition Penalty
1 Withdrawn by Secretary -0-
2 Affirmed $5,000
3 Affirmed $5,000
4 Affirmed $5,000
5 Affirmed $5,000
6 Affirmed $5,000
7 Vacated -0-
8 Affirmed $5,000
9 Affirmed $5,000
10 Affirmed $5,000
11 Affirmed $5,000
12 Affirmed $5,000
13 Affirmed $5,000
14 Affirmed $5,000
15 Affirmed $5,000
16 Affirmed $5,000
17 Affirmed $5,000
18 Withdrawn by Secretary -0-
19 Affirmed $5,000
20 Affirmed $5,000
21 Affirmed $5,000
22 Affirmed $5,000
23 Affirmed $5,000
24 Affirmed $5,000
Item Disposition Penalty
25 Affirmed $5,000
26 Affirmed $5,000
27 Affirmed $5,000
28 Affirmed $5,000
29 Affirmed $5,000
30 Affirmed $5,000
31 Affirmed $5,000
32 Affirmed $5,000
33 Affirmed $5,000
34 Affirmed $5,000
35 Vacated -0-
36 Affirmed $5,000
37 Vacated -0-
38 Affirmed $5,000
39 Affirmed $5,000
40 Affirmed $5,000
41 Vacated -0-
42 Affirmed $5,000
43 Affirmed $5,000
44 Affirmed $5,000
45 Affirmed $5,000
46 Affirmed $5,000
47 Vacated -0-
TOTAL $200,000
NANCY J. SPIES
Judge
Get today's answer for your situation
You just read what one judge decided for one employer in 1998, and it binds only those parties. Ezel checks the current OSHA standards and Commission precedent and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.