T & S Utilities, Inc.

Plain-English summary

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

Decision snapshot

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

Full text (OSHRC public release)

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

                                                                                           FAX:

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

SECRETARY OF LABOR,
Complainant,

              v.                                           OSHR C     Docket No. 934015

TBiSUTIIDBSJNC.,
Respondent.
0
.

APPEARANCES:

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

Before: AdministrativeLaw Judge Paul L Brady

    This proceeding is brought pursuant to section 10 of the Occupational safety and

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

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

   It is alleged in the citation that employees were exposed to the hazard of atmmphe&

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

                                           2

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

      The citation alleges that employees working in the manholes %ere not given training

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

                 meged Violation of 29 C.F.R. d 1926.21(bX61@


   Ms. Hodenius testified that during the course of her inspection, she was informed by

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

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


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

   Ms. Hodenius stated that the basis for the alleged violation was that she observed

employees working in an open manhole. The cover was of&and there were no barricades
around the manhole (E&s. C-9, C-10; Tr. 41).

                                             4

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

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


   The standard which pertains to the requirements for ladders states, in pertinent part,

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

   The citation alleges that the ladder used for access to the manhole extended only 24%

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

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

   The citation alleges that employees used ladders in an unsafe manner for manhole

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

   It is noted that White did not indicate the employee failed to secure the ladder or

that he acted contrary to a training program. T & S does not show there was a training
program as required. The evidence establishes the violation as alleged.

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


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


                                                6

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

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


   This regulation requires the reporting of fatality or multiple hospitalization accidents.

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

    Ms. Hodenius testified that the fatality in this case occurred on December 29,1992,

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

    Section 17(j) of the Act authorized the Commission to assess appropriate penalties

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

                            FINDINGS OF FACI’ AND
                             CONCLUSIONS OF LAW


    The foregoing decision constitutes the fMings of fact and conclusions of law in

accordance with Federal Rules of Civil Procedure 52(a).

                                           8

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

 ’Citation for
  Remat Violation                 Standard      Dimosition       Penalty

                            6 1926.100(a)        Affirmed        $2,800

  Citation for
  “Other” Than
  Serious Violatioq

                            0 1904.8             Affirmed        Sl,ooo




                                 /s/ Paul L Bradv
                           PAUL L BRADY
                           Judge

Date: March 31, 1994