Utility Systems, Inc.

Plain-English summary

Utility Systems excavated for water service lines on a New Jersey street after snow and earlier trenching had obscured gas-line markings. Its superintendent requested a new markout but began digging before the gas company responded, despite uncertainty about service to one house. The backhoe struck a live gas line, and the house later exploded and burned. The judge found that the superintendent knew the requirement to determine underground utility locations and deliberately proceeded without reliable information. The violation was affirmed as willful with a $21,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(b)(1)
• Outcome: Willful underground utility-location violation affirmed with a $21,000 penalty
• Key point: Calling for a remark did not satisfy the standard when the supervisor knowingly started excavation before the location information was available.

Full text (OSHRC public release)

                             UNITED STATES OF AMERICA
 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                              One Lafayette Centre
                        1120 20th Street, N.W. - 9th Floor
                           Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
NO. 934945
uTI]uTy SYSTEMS, INC.
Respondent.

                    NOTICE OF DOCKETING
             OF ADMINISTRATIVE L,AW JUDGES                   DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on Marc E 2, 1995. The decision of the Judge
will become a final order of the Commission on April 3, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
March 22, 1995 in order to ermit suff?cient time for its review. See
Commissron Rule 91,29 C. 8 .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial I.iti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: March 2, 1995
DOCKET NO. 93-1945
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004 w
200 Constitution Ave., N-W.
Washineton. D.C. 20210

                    .

Patricia Rodenhausen, Esq
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 brick, Room 70?
New York, NY 10014

                    .

Thomas S. Cosma, Esque
Connell, Foley & Geiser
85 I&in ton Avenue
Roselan r NJ 07068 1765

Irvin Sommer
Chie HAdministrativeLaw Jud e
Occupational Safety and Heal tl
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00107200297:02
 UNITED STAES OF AMERICA
ObCUPATlONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

SECRETARY OF LABOR, l

                                  .




  Compiainant   f


           s.                     .
                                  .      Docket     Nu   l



                                  .
                                  .

UTILITY SYSTEYS, INC., .
.
.
.
.
Respondent. .
.
.

Appearances:

Diane Wade, Esq. Thornas S. Coma, Esq.
U.S. Department of Labor: Connell, Foley & Geiser
New York, New York Roseland, New Jersey

FO r ttieComplainant Fo r the Respondent

Before: Administrative Law Judge Irving Sooner

           This is a proceeding under Section 10(c) nf the Gcmpa-

tional Safety and Health Act of 1970, 29 U.S.C. section 651 &
Ses- > ("the Act"), to review citations issued by the Secretary
of Labor pursuant to section 9(a) of the Act, and the proposed
assessment of penalties therein issued, pursuant to section 10(a)
of the Act-
 Respondent is a mrporation
engagedwhich was in
excavation and related activities. Between March 18, 1993 -
May 28, 1993, the worksite at 12 North Second Avenue, Renvil,
New Jersey was inspe&zed by an OSHA
officer.compliance
Subsequently, on June IO, 1993 3 the CF3lT.lpa~yreceived twu
citations resulting from this inspection. Respondent fifed 22
timely notice of contest but is now only contest,ing citation #I,
item 1 and the proposed penalties. A hearing was held on January
26 and June 2, lS%, in New York, New York. Bath parties were
represented at the henring ;andboth parties have filed
post-hearing respons~~z~ No jurisdictiunal issues are in dispute,
The matter is now !&&zme the undersigned for a decisiosl cm the
merits.

         At the                                 +=;g
                                                 k .+j.
                     hearing J the co11~3.aianceif   :f?J
                                                      .e
                                                       r 3 Ckgry
                                                       ".                   Jensen,

tese.ified that he had cone to this particular jobsite on March
17 3 1993, because of a report of a serious accidehtt:which had
occurred at the %a.cati~n the day before:. The accident in‘rdOE.ved
an exp ~OSiOTt. f i.re, ~kM3A-i had been caused by a cont"rassto,r
2x.n.:d
striking a gas line. Mr. Jezmzm noted -that ~&en he arrived at
the accident site that nothing .re/BSined 0 -F ap*
i$$ fzmi.iy
x tjj-jj"~
dwelling except the foundation. Finding RCI representative there
from Respondent's company, Utility Systems, Inc.> The compliance
officer took a videotape of the damage. He then returned to the
accident scene OE March 18, 1993.. On that day, Mr. Jensen
conducted an opening conference with Respondent's superintendent,
Manny Casais, who explained ta him what had happened on the day
of the accident.

         Mr. Jensen          also       conducted interviews        with Mr.   Pinha

III, Utility System's president and Mr. Farinhas, the operator of
the backhoe. During the course of his inspection, Mr. Jensen
 a
3 -

also interviewed Mr. Sparnon, an inspector
from Purcell &
Associates, Mr. Burbridge, distribution foreman from New Jersey
Natural Gas, Mr. Tarleton, general supervisor of gas operations,
and Ms. DeCapitani, the homeowner of house No. 12.

      From the interviews Mr. Jensen ascertained that Utility

Systems had been hired to install a water main and service lines
in the jobsite area that was already hooked up far gas. Before
beginning the job, Respondent called Garden State Markout, which
is a toll-free utility markout service for the state of New
Jersey to which all utilities belong. Contractors are required
to call this service
to request markouts, which involves the
utility company coning to a site and physically indicating where
gas main and service lines are located on the ground and on
roads. This is done using indicators sgch as yellaw painted
lines and stakes or flags. Utility Systems also sent a certified
letter to New Jersey Natural Gas requesting a markaut
of the
affected streets in the jobsite area. Both requests were made on
January 29, 1993. According to New Jersey Natural Gas records,
the requested markouts were done on February 1, 1993.

         The      homeowner        of       12   Second  North
                                                         Avenue, Ms.

DeCapitani, testified that there were extensive markouts on and
around her property that indicated her gas service. She noted
that there was a yellow gas flag on her front lawn, a large pise
beside the front door that had a two inch yellow cap marked
'GasIC, and a two to
three foot long yellow lir,e painted
perpendicularly in the street over her gas service line, and that
across the street from the yellow line was a big capital 'G".

         On     or about
                    February  5, 1993, the Respondent began

excavation of the streets in the jobsite area in order to install
the water main lines. In excavating North Second Avenue in order
to dig a trench for the water main pipe, Utility Systems
 -4 -

necessarily tore up the pavement upon which the gas markings were
painted. Ms. Decapitani, the home owner, specifically testified
that the excavation work destroyed the markouts for the gas
service in front of her home. After Respondent installed the
water main line, it,backfilled the trend-l with dirt aw:1dgraT;e1
but did not repaint or remark the gas markings or obtain a
remark.

           On March         13, 1993, the Saturday before the Monday when

Respondent was scheduled to begin water service line excavation
work on North Second Avenue, there was a large snowfall.
According to weather bureau reports approximately one foot of
snow fell on that Saturday. By Monday, March 15, 1393, there
were snow drifts in front of 12 North Second Avenue which were
three to four feet high. The weather was so poor on Monday,
March 15, 1993, that Utility Systems was unable to begin its
excavation work. In fact the entire day was spent clearing the
snow from the street. Because of the blizzard, any gas markings
for house No. 12 were no longer visible. The flag on the front
lawn was covered by snow. The excavation for the water main line
had destroyed the yellow lir!e in the street. T
An addition, the
blanket of SX~ had covered any gas markings in fror?t of house
No. 12.

            On    Tuesday,      March        16,    1993,     the         Utility     Systems

excavatirJff crefw with superintenderk Manny Cssais arrived at North
Second Avenue at about 8:OO a.m. to begin the installation of
water service lines. Before beginning the work, Mr. Casais
surveyed the block of houses looking for gas markings. At
approximately 8:30 a.m., Mr. Casais called New Jersey Natural Gas
and requested a remark of the street because he had "missed a
couple of markers" which evidently he had noticed previously.
When Mr. Casais requested a remark, the operator at New Jersey
 - 5-

Natural Gas told him to call the Garden State Markout Service
directly. The operator also indicated to him that she did not
know if a crew could be sent out that day because of
the large
snowfall- Mr. Casais indicated to the operator that he could not
wait fur the Garden State Markout Service as it could t.ake them
two or three days to send out a crew. The-audiotape of this
telephone call reveals that Mr. Casais became very agitated. He
finally told the operator "if ym.3 wanna do, fine, if you no
wanna do, then I break the line and you come out to fix", and
then hung up on her. Mr. Casais apparently
the commenced
excavation vork at appruximately 8:45 a.m. on March 16, 1993. He
directed that the work start at the east end of North Second
Avenue where he was more certair! of the markouts and worked
westerly. By about X:00 a.xi., Mr. Casais and his crew had
worked their way down the block to the house at 1.2North Second
Avenue. Mr. Casais demonstrated his uncertainty regarding this
house by walking around the house looking for an outside gas
meter and also ringing the doorbell to ask the homeowner if any
gas service was used. Since no one was at home, and Mr. Casais
did not notice any gas markings, he decided to go ahead with the
excavation. He told his backhoe operator,
Mr. Farinhas, to
proceed "slowlyP'. Almost immediately the backhoe struck a live
gas service line. There was a loud "hissing" sound. The
backhoe uperator called to Mr. Casais. Approximately ten minutes
later the house exploded and a large 'fire ensued.

         Emergency           crews    from       the     fire    department,     police

department, and gas company arrived soon thereafter. Gas service
was turned off for the entire block. New Jersey Natural Gas then
discovered a yellow gas flag in the front yard of house No 12,
buried mder about a foot of snow.
In the end, nothing was left
of the house except the cinder block fuundation.
 -6 -

        From      his interviews
                            and observations, the compliance

officer was able to recunstruct Respondent's conduct which led to
the explosion at the worksite. The compliance officer
recommended the issuance of a citation for a violation of 29
cz.F.R. section 192&651(~)(lj as Respondent's sups r i!l
toendGri
t.
proceeded t9 open an undergmund excavation without knowing the
estimated location of the underground utility that reasonably
could have been expected to be encountered. Mr. Casais had
instructed the backhoe operator to dig although he was not sure
whether or not house No- 12 used
gas utilities. In addition,
both Mr. Casais and Mr. Pinho, the company president, knew of the
requirement to determine the
location of underground utility
installations before proceeding. Also, both men should have
known that the absence of visible markers at house No. 12 was not
reliable proof that
gas was not in use there. This was
especially true since the original street markings had beerr
destroyed by subsequent excavation work in that area and further
obscured by the blizzard. See Secretary's brief, p. 5-11, 14-20.
The Secretary's case was also supported by exhibits C-l- C-11.

         During     the     hearing,       the Respondent's         attorney,     Mr.

Coma crossexamined Mr. Jensen, Ms. DeCapitani, Mr. Burbridge,
-x-d Mr - Tarl&un - kfF w cosma slsu
LL questimmi Mr. Hiller, an
engineer from Purcell & Associates, Mr. Sparnon, an inspector
from Purcell & Associates, Mr. Pinho III, president of Utility
Systems, Mr. Pinho II, vice-president of Utility Systems, as
witnesses to present Respondent's position.

      Respondent  argues   that the case     arose                        after    an

explosion at 12 North Second Avenue, Renvil, New Jersey on March
16, 1993, when an unmarked natural gas pipe was ruptured during
excavation for a water main and service. Prior to commencement
of the project, representatives of Utility Systems attended a
preconstruction meeting at which New Jersey Natural Gas
disseminated a handout outlining recommended procedures to follow
when obtaining markouts of gas service prior to excavation in
conformance with OSHA and New Jersey state law.

         In     conformance     with  these recommended procedures,

Respondent on l
January 29, 1993, called the 800 number, to the
Garden State Markout Service. In this request, Respondent.
requested that all markouts in the applicable area involved be
completed by February 5, 1993. Utility Systems also sent a
certified letter to New Jersey Natural Gas on January 29, 1993
requesting the markouts. New Jersey Natural Gas records indicate
that Mr. Robert Burbridge marked out North Second Avenue on
February 1, 1993.

         Respondent contends that, according to Mr. Sparnon                 and

its own employees Mr. Casais and Mr.
Farinhas, there was QQ
markout fur gas service ever done at No. 12 North Second Avenue.
The Respondent began installing water service prior to the week
of March i5, 1983.On March 15, 1993, Utility Systems was to
begin installing service lines on North Second Avenue. However,
over the weekend there was a blizzard in that area. Because of
the large smwfall, all day on March 15, 1993 was spent clearing
snow from North Second Avenue. Excavation work actually started
on Tuesday, March 16, 1993, and proceeded in accordance with the
markouts established by New Jersey Natural Gas
The Company.
property ir!question, 12 Nsrth Second Avenue, was pelt marked out
by New Jersey Natural Gas as showing gas service. Further, there
was E?,Oexterior gas meter or other evidence of gas service to the
house and no one was home on the morning of March 16, 1993, when
--
excavation in front of the house commenced.
 - 8-

           Respondent asserts that it had a right to rely upon the

aCCUraCy of the records and the accuracy of the markouts made by
New Jersey Natural Gas Company in determining what underground
installations it may reasonably expect to encounter during
the
excavation work. Respondent notes that it is beyond dispute that
only some houses or!North Second Avenue had gas service. In fact
exhibit C-l reflects that S out of 17 houses (excluding house No.
i2) showed no gas service.
Thus, there were no gas service
markouts showing gas lines from the gas main to those homes.

           On the morning of March 16, 1993, Respondent had a crew

of seven, including Manny Casais, the supervisor and John
Farinhas, the backhoe operator. The facts indicate that prior to
beginning the excavation work that morning, Mr. Casais called New
Jersey Natural Gas and asked for a remark of the street. The
Secretary has seized upon this telephone conversation as
justification for this citation. However, it is clear that Mr.
Casais was instructed by the Company's president, Mr. Pinho III,
to call the utilities on a regular basis and tell them whatever
he had to tell them to get a utility representative to come out
to the jobsite. The intent was obviously to be extra cautious by
having a utility representative present as often as possible and
not because of a failure by Respondent to have the site
prernarked.

           Utility Systems argues                that this whole
                                               case turr,s en

whether the worksite at 12 North Second Avenue was in fact marked
out by New Jersey Natural Gas on February
1993. The 1,
statements made by Respondent's supervisor, Mr. Casais, to the
compliance officer, Mr. Jensen, are consistent with the testimony
of Mr. Sparnon, the independent witness who was an inspector from
Purcell & Associates on March 16, 1993, as well as the testimony
of Frank Pinho III that the jobsite was not marked out.
 - 9-

         The Secretary tries             to make a        Case that the            site 3;3-

marked out by the testimony of Mr. Robert Burbridge, New Jersey
Natural Gas's distribution foreman. However, a careful review of
Mr. Burbridge's testimony reflects
his confusion and lack of
credibility regarding the marking of this worksite. In fact, the
evidence reflects that the records of New Jersey Natural Gas with
respect to the markouts on North Second Avenue are just not
reliable. Further, they are contradicted by the actual
eyewitness observations on Mar?? 16, 1993, and thereafter by
almost all observers at the site, including an observer
disinterested to these proceedings.

         Utility       Systems asserts             that    it did    not violate            29

C.F.R- section 1926.651(b)(l). Respondent took precautionary
measures with respect to the markouts before proceeding.
Respondent's supervisor, Manny
after Casais, getting an
unsatisfactory response from the gas company to his request that
they send someone out the morning of March 16, 1993, to recheck
the gas company's marks, checked around the area to be excavated
himself. He checked around the perimeter of the house to
determine if any outside gas meter was present and even knocked
on the dour of the house No. 12 but found no one at home that
morning. Indeed, it is also signif icant that house No. 12
appeared to be unique in this particular neighborhood as its gas
meter was located inside the house.

         Further,        Resportdent acted           prudently to         give the          gas

company sufficient time to get someone to the site that morning,
by Mr. Casais' decision to start work on the east end of North
Second Avenue, where Mr. Casais was sure that several houses in
a row did not have gas service. Utility Systems reached the
house at 12 North Second Avenue at approximately 11:OO a.m. on
the morning of March 16, 1993. Since there were no visible
markings whatsoever on the exterior of this house, and no records
indicated gas service to this residence, Mr. Casais instructed
Mr. Farinhas to commence water line excavation in the street in
front of the house.Shortly thereafter, Mr. Farinhas heard a
"hissing'" sound, observed that the backhoe
.-* hati
w caught PAI w++,v
-b-I m
gas fine servicir,g tfie house
and stopped digging. Several
minutes later there was an explosion, from inside the house.

           Utility       Systems contends
                                 that a preponderance  of the

evidence indicates that at the time of the explosion that the gas
service line had not been marked out by the gas company . A
contractor has a right to rely upon the completeness and accuracy
of
. the gas company's records. The actions of the Respondent in
all regards in this case were prudent and in keeping with its
obligations under applicable Federal. law and New Jersey state
law. See Respondent's brief, p. 3'7-45, 48-51. The Respondent's
ease was also supported by exhibits R-L, R-8- R-15.

       ~2i JJfu    1   ,2p.c:   serious       vi,r!Ia?.i:>n
                                                        of    29    C.F.R.     h-r  m
                                                                               q?Ctlrsp&

19266. )
       Willful and Serious Citation 1, iteE 1 alleges:
       The estimated location of underground utility installations,
       =lJ& .gs sewer ) tglgjh~p*~) f‘rld> electric * water 1 ines .I or any
       other underground installations that reasonably may be expected
       to be encountered during excavation work, were not determined
       prior to opening an excavation.
       The estimated location of a natural gas line that reasonably
       could have been expected to be encountered during excavation
       work, was--not determined prior to opening of the excavation.
       This resulted in an explosion and fire which occurred after a
       backhoe struck and damaged a natural gas lir,e, exposing
       employee(s) working at the site to fire and explosion hazards.
        The primary question to consider here is whether the
       Respondent was in violation of
       the standard as cited. In this
       instance Utility Systems was cited for failing to determine the
       location of an underground gas line prior to commencing
       excavation work.

            In this case       it is quite evident from a               review of all
       

       the record evidence that Respondent, through both its
       superintendent in charge of the worksite, Mr. Casais, and its
       president, Mr. Pinho III, who visited the worksite on a weekly '
       basis, knew the requirements of the standard. The compliance
       officer testif ied that he had provided copies of the OSHA
       excavation standard to both Mr. Pinho
       and Mr. Casais during a
       prior inspection and advised them both to take a course on the
       excavation standard in order to qualify as "competent persons".
       During the current inspection, both Mr. Casais and Mr. Pinho
       produced cards to show that they had completed the recommended
       Course.

            Besides knowledge
                            of the particular standard at issue,
       

       Respondent also knew of the violative condition. Both Mr. Pinho
       III and Mr. Casais were aware that a number of houses on North
       Second Avenue used gas. However, they both were unsure which
       ones since some
       gas markings could not be accounted for.
       Specifically, Mr. Casais' actions on the morning of March 16,
       1993, demonstrate Respondent's uncertainty regarding the gas
       markings on the block. Mr. Casais initially on that morning
       called the gas company for a remark and noted that he was lnissing
       sane markings
       .- that he previously had noticed or! the street. He
       then started work on the east end of the street where the gas
       markings were more clear. When
       the crew got to No. 12 North
       Second Avenue, Mr. Casais did not see any markings so he held up
        the work while he personally inspected all around the outside of
       the house and attempted to talk to the homeowner.

                   Utility           Systems also was       cognizant that
                                                      the blizzard
       

       over the weekend had blanketed the street with snow, further
       obscuring any previous gas markings which had beer! made.
       Despite this knowledge and uncertainty, Respondent's
       superintendent, Mr. Casais, consciously made the decision m to
       ' wait for the gas company to respond to his uwn request for the
       street to be
       remarked- With potentially life-threatening
       consequences, Mr. Casais instructed his backhoe operator,
       Mr. Farinhas, to proceed to excavate. Both Mr. Casais and Mr.
       Farinhas were in the immediate area when the gas line was
       severed, causing the explosion. Both employees of Respondent
       were exposed to the hazard presented by violation of the
       standard,

                   It          is      also      quite      clear     that     Respondent's
       

       superintendent, Manny Casais, was in complete charge of the
       jobsite fur Respor,dent at the time of the accident. The totality
       of his actions
       indicates an intentional disregard for the
       hazardous conditions at the jobsite and a plain indifference to
       the safety of his employees. Further, Mr. Casais, in his
       conversation with the gas company operator on March 16, 1993,
       indicated an almost urgent desire to get the work done that day
       regardless of
       the risk to himself or his errployees. Under
       Commission precedent, a forezan's or supervisor's knowledge arrd
       voluntary violation of the Act are properly imputed to the
       .
       employer. See Secretarv of Labor v. TErnpa Shmvards. c= > 15
       BNA OSHC i533 (No. 86-360 and 86-469, 1992).

              -s
       
               Accordinglyr taking into consideration all the record
       

       evideme ar,dcredible testimony presented regardlEg this citation
       iterc, I find that the Secretary has established a violation of
        -139

the standard by a preponderance of the evidence presented . The
evidence further reflects that the Respondent knew or should have
known of the hazards to its employees. Respondent tkough its
supervisor madea conscious decision
to disregard the known
requirements of. tk standard. Only through fortuitous
circumstances were Respondent's employees not killed or badly
injured.

         The next           question    to consider     is whether  Or           Rot     the

violation is properly classified as serious and willful. In this
matter, Utility Systems was charged with a serious
and willful
violation of the standard at 29 C.F.R. section 1926651(b$(l}.

         The compliance officer              testified that he characterized

the violation as "serious" as Respondent's foreman and backhoe
operator were exposed to potential substantial injury from being
struck by debris, impalement hazards, and internal injuries. The
compliance officer also noted that the employees could have been
killed if they had been closer to the explosion or if the debris
had flown in a different direction. A review of this case record
reveals that the citation was quite properly classified as a
"serious" violation.

         The compliance officer also characterized the violation

a!3 "willful". Under Comission Precedent, a willful violation
is one committed with intentional, knowing, or volmtary
disregard for the requirements of the Act, or with plain
indifference to employee safety. See Secretav of Labor v.
es. IRC., 13 BNA OSHC 1249 (No. 85-355, 1987).
Willful conduct by an employee in a supervisory capacity
constitutes a prb facie case of willfulness agsiqst
H * the
&
employer unless the supervisory employee's misconduct was
 -14-

unpreventable. See warv of L&oz v. V.I.P.
Inc., 16 BNA OSHC 1.573 (No. 91-1167, 1994).

 The record here is quite clear that Utility Systems through">

both its superintendent and its president specifically kfiew the
requirements of the s+,andard it has been charged with willfully
violating. It is alSO esinently clear that Respondent's
superintendent, Mr. Casais, on the morning of March 16, 1993,
despite the severe weather conditions and prior excavation work
which had destroyed the gas markings on North Second Avenue, made
the conscious and deliberate decision to proceed with excavation
work knowing full well that he was uncertain of which houses on
the street had gas service. Mr. Casais, evidently because of his
zeal to get the work completed, made the conscious decision to
not even wait for the gas company to respond to the telephone
call for remarking the street, which he himself had rzladeearlier
that morning of the accident. Mr. Casais, as the company ps
superintendent, knew the potentially dire consequences of the
company's violation, of its safety obligations under the Act but
intentionally disregarded them. Respondent Lmade no good faith
effort to cmply with the OSHA standard md
its actions were mt
reasonable under the circumstances which existed in this case.
Only through fortuitous circumstances were Respondent's employees
not killed or badly injured. Consequently, despite Respondent's
protestatisns to the contrary, it is quite evident here that the
record reflects that the citation was quite properly classified
as a "willftil" violation.

                                         c.

         A final      question to consider is               the reasonableness         of

the penalty proposed by the Secretary in this case. Under
section l?(j) of
the Act, 29 U.S.C. section 66s(j 1, the
Commission considers four factors in determining an appropriate
penalty: the gravity of the violation, size of the employer,
previous history of violations, and the good faith of the
employer. Gravity is normally the most important factor. See
ecret.ary nfJ&nr V.
. .
Naclrema QDer_iat;ngCO- > 1 BNA OSHC 1001
(No. 4, 19723. In determining the gravity of a violation, the
Commission takes into account such facts as (11 the number of
employees exposed, (2) the duration of exposure, (3) the
precautions taken against injury, and (4) the degree of
probability that any injury would occur. See WV of Labor
.
V. 63udlty -1.w . Products Cornpan > 16 BNA OSHC 1927 (No. 910
414, 1994).

          In     this    matter
                        the compliance officer proposed    an

unadjusted proposed penalty of $35,000. At the hearing the
compliance officer noted that despite the high gravity of the
violation and the potential for severe injury or death, he
reduced the penalty amount by 40 percent based on the relatively
mall size of this company. No
further adjustment was made for
prior history as the company has been previously cited. Also no
further adjustment was made for good faith because of the
serious, high gravity, willful type of violation.

      Accordingly, the totality of the evidence and testimony

in this matter substantiate that the Respondent was in violation
of the standard on the date of the inspection. The Secretary has
proposed a penalty of $21,000 for this citation item. Under all
the existing facts and circmstances herein, a penalty of $21,000
for said serious and willful
violation of the standard is
consistent with the criteria set forth in section 17(j) of the
Act. See Secretarv of Labor v. AJ. 0 ,Horo Corn-v 1 14 BNA OSHC
2004 (No. -85-369, 1991).
 -16-

      All findings of fact and conclusions  of law relevant

and necessary to a determination of the cuntested issues have
been found specifically and appear herein. See Rule 52(a) of the
Federal Rules of Civil Procedure. Proposed Findir!gs of Fact or
Conclusions of Law inconsistent with this decision are denied.

Based upon the Findings of Fact, Conclusions of Law, and the

entire record, it is hereby ordered:

1. Citation 1, item 1, alleging a serious and willful violation

of 29 C.F.R. section 1926.651(b)(l) is affirmed and a penalty of

$21,000 is assessed.

DATED: -$9B 2% l&s
n/n
IRVING SOMMER
Chief Judge, OSHRC
Washington, D.C.