SECRETARY OF LABOR,
Complainant.
v.
ED TAYLOR CONSTRUCTION CO.,
Respondent.

OSHRC Docket No. 88-2463

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

This case has been before the Commission previously following a remand by the United States Court of Appeals for the Eleventh Circuit.[[1]] In its decision, the Eleventh Circuit affirmed two of the three citation items at issue before it, but remanded the case for further proceedings with respect to the third. That item (citation no. 1, item 2) alleges a serious violation of 29 C.F.R. § 1926.20(b)(1) in that the Respondent, Ed Taylor Construction Company ("Taylor"), "did not enforce and maintain a safety program which provided for frequent and regular inspections of jobsites, materials and equipment [with such inspections to be] made by a competent person . . " For the reasons stated herein, we conclude that Commission Administrative Law Judge ("ALJ") Paul L. Brady did not err in finding and concluding that Taylor failed to comply with the terms of the cited standard. We therefore uphold his decision to affirm the contested citation item. However, we modify his assessed penalty of $200 and assess a more appropriate penalty of $500 for this serious violation.

Factual Background

The citation at issue resulted from OSHA's investigation of multiple fatalities at the Central Park office complex construction project in Atlanta, Georgia. This project involved the erection of a 20-story office building and a multi-level parking garage. Taylor is a general contractor that normally limits its operations to the erecting of commercial structures, such as multi-story buildings. On this project, however, another general contractor had been given the contract for constructing the office building and parking garage. Taylor's separate contract with the owner was a "hardscape" contract. Thus, it was responsible for the concrete landscaping work on the project, including most notably the construction of a large artificial lake or pond at the. bottom of the hill on which the of office complex was being built.

Because Taylor had no prior experience under a "hardscape" contract, it did almost all of its work on this project through subcontractors, keeping only a skeletal staff of approximately three of its own employees at the site. One of Taylor's subcontracts was with J & R Excavation, Inc., which had responsibility for constructing a "special purpose access shaft" or "manhole." The sole purpose of this shaft was to provide access to a valve at the bottom of the shaft. This valve was connected to a pipe that linked the artificial, concrete-lined lake to a storm drainage system. When the valve was opened, it allowed the lake to be drained so that the lake could be cleaned or repaired. Closing the valve made it possible to fill the lake.

The access shaft that J & R built was 24 feet deep and 4 feet in diameter. It had a single opening at the top that was 24 inches in diameter, but a manhole cover was placed over that opening, thereby creating a complete enclosure. Inside, the shaft was gravel-based, concrete-lined, and empty, except for the valve at the bottom and an "access ladder"' (apparently rungs attached to the concrete wall) leading down to the valve. Because the shaft was not connected to a sewer or otherwise expected to contain liquids, the witnesses at the hearing consistently characterized it as a "dry shaft" as opposed to a "sanitary manhole. [[2]]

On this record, it appears likely that Taylor employees only entered the manhole on two occasions. The manhole was constructed by J & R in January 1988. Since Taylor was responsible for overseeing this work, project manager Giannini was probably correct in speculating (in a written witness statement given to OSHA) that project superintendent Garren had entered the manhole in January to assure himself that it was being (or had been) constructed in accordance with the contractual specifications.[[3]] Thereafter, it seems likely that the manhole remained closed from the time it was completed in January until Garren and two other Taylor employees entered it on August 19, 1988 There is no evidence in this record to suggest otherwise.

In the interim between these two entries, the work of Taylor and its subcontractors under the "hardscape" contract was basically completed in March or April, when the contractors finished backfilling around the manhole. Taylor therefore removed its regular work crew from the project site. However, at that time, it was not possible for Taylor or anyone else to fill the lake, because the county had imposed significant water use restrictions in response to a drought. These restrictions were lifted in August 1988.

Upon being notified of this fact, Taylor put together a special work crew, consisting of three of its own supervisory employees and two temporary "day laborers," which returned to the Central Park worksite in early or mid-August to finish the remaining work on the project. Specifically, the crew was instructed to examine, clean, and repair "a rather huge black liner" that covered the bottom of the lake. It was then expected to take the steps necessary to fill the lake with water, including descending to the bottom of the manhole shaft to close the drain valve and turning on a pump to activate the flow of the water.

While there is no eyewitness account in this record of the events leading up to the worksite fatalities, it seems clear from the evidence that was introduced that the accident occurred when assistant project superintendent Geeslin was sent into the manhole to close the valve, so that the lake could be filled. Geeslin's autopsy report strongly suggests that, while he was descending into the manhole, he lost consciousness due to a lack of oxygen; fell from the access ladder; and, as a result, suffered a broken neck. According to their autopsy reports, the other two deceased employees, project superintendent Garren and labor foreman Bohler, were then similarly overcome when they attempted to rescue Geeslin.

Subsequently, the medical examiner determined that all three of these employees had died as a result of their exposure to an oxygen-deficient atmosphere (i.e., "asphyxiation" caused by a "vitiated" atmosphere). For the first two employees into the shaft, the examiner also listed a second cause of death--"immersion in water." Thus, the autopsy reports demonstrate that, at the time of the fatalities, there was an undetermined amount of mud and water at the bottom of the shaft. We might assume that these conditions played some role in the development of the oxygen-deficient atmosphere inside the manhole. However, this would only be speculation on our part. Neither party made any effort to establish how the water and mud got into this "dry shaft" or how the oxygen-deficient atmosphere was created.

The Law of the Case

As a result of its investigation of this accident, OSHA issued, and Taylor later contested, a citation alleging three serious violations of the Act, each based on the circumstances surrounding the accident. OSHA further proposed penalties of $1000 for each of these alleged violations. As indicated at the outset of this decision, two of these citation items are no longer before us because they have been affirmed by the United States Court of Appeals for the Eleventh Circuit. Ed Taylor Constr. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991). That decision also resolved several of the factual and legal issues that had previously been in dispute between the parties, and the court's resolution of those issues is now binding on us as "the law of the case." See, e.g., American Cyanamid Co., 9 BNA OSHC 2052,1981 CCH OSHD ¶ 25,504 (No. 77-3752,1981); Stewart-Warner Corp. (I.B.E.W., Local 1031), 8 BNA OSHC 1316,1980 CCH OSHD ¶ 24,472 (No. 78-5910-E, 1980) (lead and concurring opinions).

Citation no. 1, item 3, alleged a violation of 29 C.F.R. § 1926.21(b)(6)(i) in that employees at the Central Park worksite were required to enter into a "confined space," as defined in § 1926.21(b)(6)(ii), even though they had not been instructed as to the hazards involved in confined space entry, the necessary precautions to be taken, and the use of personal protective and emergency rescue equipment.[[4]] As noted by the Eleventh Circuit, Taylor did not contest the allegation that it had failed to provide such instructions. 938 F.2d at 1268. That factual issue is therefore settled in these proceedings. In addition, the court's affirmance of this item constitutes a binding legal conclusion that the manhole in question was a "confined space" as defined by the Secretary, see supra note 4, i.e., it was a "space having a limited means of egress, which [was] subject to the accumulation of toxic or flammable contaminants or [which had] an oxygen deficient atmosphere."

More specifically, in affirming this citation item, the court reasoned as follows: (a) the manhole at issue was a "confined space" because it was an "open top space more than 4 feet in depth" and such spaces are expressly included within the standard's coverage; (b) because the manhole fell within this category, the standard itself establishes that it was subject to the accumulation of toxic contaminants or the creation of an oxygen-deficient atmosphere; and, implicitly, (c) independent proof of this fact by the Secretary was therefore not necessary. 938 F.2d at 1272. Based on this reasoning, the court rejected Taylor's principal defense to this citation item, i.e., its claim that "the manhole was not a 'confined space' because experienced contractors in the Atlanta area did not recognize such a manhole as a space subject to the accumulation of toxic contaminants or having an oxygen-deficient atmosphere." Id. In essence, the court held that, because of the express terms of the standard, it was "irrelevant" whether employers in Taylor's industry would have recognized that this particular manhole was one that was subject to the creation of a toxic, flammable, or oxygen-deficient atmosphere.

In affirming the second of the three citation items before it, the court employed similar reasoning. Citation no. 1, item 1, alleged a violation of section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), in that Taylor failed to adopt and implement a "confined space entry procedure" before its employees entered the manhole on August 19, 1988.[[5]] Specifically, the Secretary charged that Taylor did not test the atmosphere (for air contaminants and oxygen deficiency) before permitting its employees to enter the manhole, did not have emergency rescue equipment available, and did not provide mechanical ventilation. Again, the Eleventh Circuit correctly noted that Taylor did not challenge the Secretary's factual claims, and these factual matters are therefore settled. 938 F.2d at 1268. In addition, the court's affirmance of this citation item constitutes a binding legal conclusion that the confined space entry hazard created by the employees' entry into the shaft was a "recognized hazard" within the meaning of section 5(a)(1).

In defending against this charge, Taylor had sought to prove that the hazard at issue was not "recognized" by its industry. It defined its industry as those employers that are engaged in commercial construction but not utility work. It then elicited considerable testimony at the hearing to the effect that non-utility construction employers do not "recognize" the hazard created by "dry shaft" manholes. See id. The court, however, held in essence that it could give no weight to this testimony because of the Secretary's adoption of the confined space entry hazard standard cited in item 3 and discussed above. See supra note 4. In the court's view, this standard gave the entire construction industry constructive notice "that any manhole, 'sanitary' or 'dry,' that is twenty-four feet in depth and four feet in diameter is a potential hazard." Id. at 1272. Therefore, it reasoned, whether employers in Taylor's industry actually recognized the hazard is "irrelevant" since the constructive knowledge provided by the standard rendered the hazard "recognized" as a matter of law. Id.

The third contested citation item at issue before the court was the alleged violation of 29 C.F.R. § 1926.20(b)(1) that is now before us on review. The cited standard and its companion, which is incorporated by reference, provide as follows:

§ 1926.20 General safety and health provisions.

(b) Accident prevention responsibilities. (1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.

(2) Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.

The key term "competent persons" is defined, at 29 C.F.R. § 1926.32(f), as follows:

(f) Competent person means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

At the hearing, the OSHA compliance officer explained the basis of this allegation (citation no. 1, item 2), as follows:

The employer didn't have frequent and regular inspections which would have pointed out to them during the course of their inspections that they were going to have to enter a 24 vertical foot manhole that had been closed up, according to Mr. Giannini, since January. . . and held the possibility of having an oxygen deficient atmosphere or other problems.

. . . .

[A "competent person" within the meaning of the cited standard] who looked at [the] 24 vertical foot manhole with a 2 foot wide opening at the top that has been closed 8 months, as I was told it was closed, from January to mid-August, would have reason to believe that there definitely could be oxygen deficiency .... [That person would have tested the atmosphere]. They would have [thereby] determined that there was an oxygen deficiency and I assume that they would have taken some corrective measures.

. . . .

[W]ith regard to the manhole, they knew at least the day before that they would be entering, the day of the accident would be the last day on the job site. The frequent and regular inspection should have at least pointed out at that time that they were going to enter into the 24 foot manhole and that precautions would need to be taken.

In fact, as the witness suggested, it is undisputed on this record that Taylor knew, prior to August 19, 1988, that it would have to send an employee into the manhole to close the valve so that the lake could be filled. Both company president O'Neill and project manager Giannini acknowledged at the hearing that they were personally aware of this necessity prior to the fatal accident.

In his decision in this case, Commission Judge Brady affirmed all three of the citation items that have been described above. In its decision, the Eleventh Circuit formulated Judge Brady's holding with respect to this remaining citation item--citation no. 1, item 2--as follows: "The ALJ found that while Taylor provided for regular inspections of the Central Park site, the persons conducting the inspections were not 'competent'." As discussed more fully in our Order on Remand of October 18, 1991, the court set aside Judge Brady's finding and remanded the case to us for further proceedings with respect to item 2.

Strictly speaking, the court's mandate to us was limited to a requirement that we give "consideration" to Taylor's previously-filed petition for discretionary review (PDR) as it related to item 2. This we did prior to issuing our Order on Remand, as we noted in the order itself. Nevertheless, in our review of this case, we have also given considerable weight to the guidance provided by the court in its discussion of the merits of this citation item.

As the following passage indicates, the Eleventh Circuit clearly viewed the central unresolved issue with respect to item 2 to be a factual (or evidentiary) issue rather than a legal issue:

At the hearing, OSHA presented uncontested testimony that none of the inspections identified the manhole in question as a potential hazard. That, however, was the only evidence that inspectors were incompetent. There was some evidence that the inspectors were well trained and fully competent.

While the Secretary certainly presented sufficient evidence to permit the Review Commission to find that the inspectors were not "competent" within the meaning of the regulations, we could not so find as a matter of law ....

938 F.2d at 1271. Consistent with the court's view, we have fully examined the entire record, including the evidence identified by the court, to determine whether Judge Brady's key finding--that the inspectors who conducted Taylor's worksite inspections were not " competent"--is supported by the preponderance of the evidence. See id. at 1270 (distinguishing between Commission and appellate court review of factual findings). For the reasons stated herein, we conclude that the record does support the judge's finding, and we therefore reinstate that finding.[[6]]

The Competence of Taylor's Inspectors

In resolving this issue, our starting point must be the Secretary's definition of "competent person," which we have quoted above. In pertinent part, § 1926.32(f) provides that a "competent" person is one "who is capable of identifying existing and predictable hazards in the surroundings or working conditions." Here, there can be no doubt that there was an "existing ... hazard" at Taylor's workplace within the meaning of this definition. The Eleventh Circuit's decision establishes, as the law of the case, that Taylor's three employees were exposed to a confined space entry hazard when they entered the special purpose access shaft at the Central Park office complex project, initially for the purpose of closing the valve at the bottom of the shaft.

The question therefore becomes whether that hazard was "predictable." Again, the Eleventh Circuit's decision clearly points to the proper resolution of this issue. As indicated, the court expressly held that the hazard in question was a "recognized hazard" within the meaning of section 5(a)(1) of the Act. It also concluded that the entire construction industry, and not just utility contractors, had been given constructive notice of this hazard by the Secretary's adoption of 29 C.F.R. § 1926.21(b)(6), the standard that requires construction contractors to train their employees in the recognition and avoidance of such confined space entry hazards. See supra note 4. However, the court stopped short of finding that the hazard was predictable.

We must determine whether the hazard was predictable based on the evidentiary record. As indicated previously, both the company president and the project manager conceded at the hearing that they were personally aware, prior to August 19, 1988, that it would eventually be necessary to send a work crew back to the construction site to fill the lake and that, as part of this process, a Taylor employee would have to enter the manhole to shut the valve. In addition, project manager Giannini at least was aware that the manhole had not been opened since completion of the concrete structure in January. Given this evidence, and combining it with the constructive notice provided by the OSHA standards, we have no difficulty in finding and concluding that the hazard created by the employees' entry into the 24-foot-deep manhole was "predictable." As the compliance officer stated, in her unrebutted opinion testimony, a "competent person" within the meaning of the cited standard "who looked at [the] 24 vertical foot manhole with a 2 foot wide opening at the top that has been closed ... from January to mid-August, would have reason to believe that there definitely could be oxygen deficiency."

Turning again to the language of § 1926.32(f), we must now determine whether the persons responsible for conducting Taylor's workplace inspections at the Central Park construction project site--company president O'Neill, vice president and safety director Fleitz, project manager Giannini, and project superintendent Garren--were "capable of identifying" this "existing and predictable" confined space entry hazard. As the Secretary correctly points out in her review brief, the testimony of Taylor's own witnesses clearly establishes that they were not. Cf. Capform, Inc., 13 BNA OSHC 2219, 2221-22, 1987-90 CCH OSHD ¶ 28,503, p. 37,776 (No. 84-556, 1989), aff'd without published opinion, 901 F.2d 1112 (5th Cir. 1990) ("Capform itself appears convinced that [its jobsite superintendent] Pelletier was not a 'competent person' [since it] relies on Pelletier's testimony that he had never had responsibility for inspecting the condition of soil in excavations and argues that Pelletier 'lacks . . . expertise in soils-related areas'.") (ellipsis in original).

In particular, we rely upon the following testimony as support for our finding that Taylor's workplace inspectors were not "capable of identifying" the confined space entry hazard presented by the special purpose access shaft. Company president O'Neill testified that Taylor had had no prior experience with entering manholes like the one at issue in this case. He further testified that, to the best of his knowledge, no employee of Taylor had been aware prior to August 19 that the manhole at the Central Park worksite presented an asphyxiation hazard or any other safety problem. More specifically, he asserted, nobody in the company had been aware of the presence of an oxygen-deficient atmosphere in the manhole or was knowledgeable generally about confined spaces.

Concerning his own personal knowledge, O'Neill claimed that he had been unaware prior to August 19 that OSHA considered "dry shaft" manholes to be confined spaces and that OSHA required atmospheric testing and protective equipment when employees entered such shafts. He further stated that he had not even been aware that an oxygen deficiency could be discovered in a manhole by using an instrument to conduct atmospheric testing. The company president acknowledged his awareness of the hazard of methane gas in sewers, but stated that he had had no such concern about the dry shaft at issue here. He testified that he had not noticed anything during his workplace inspections that gave him cause for concern about the manhole, but he also admitted that he had probably not even looked at the shaft since "we were totally unaware of the confined space issue."

Project manager Giannini's testimony about his level of awareness prior to the accident is similar. He admitted that, during the course of his experience, he had become aware of the hazards associated with sanitary sewer manholes. Thus, he was aware of the possibility of air contamination or reduced oxygen levels in some manholes. However, he strongly denied that he had had any awareness, prior to August 19, that there was a possibility that air contaminants could accumulate in the Central Park manhole or that that particular manhole otherwise posed a hazard to employees. [[7]]

The testimony outlined above compels the conclusion that the employees designated by Taylor as its workplace safety inspectors on the Central Park project were not "capable of identifying" the confined space entry hazard presented by the special purpose access shaft.[[8]] We therefore find that those employees were not "competent persons" within the meaning of § 1926.20(b)(2).

In so finding, we expressly reject Taylor's arguments on review. Taylor first contends that the Secretary's evidentiary showing in this case is inadequate to sustain her burden of proving a violation of the cited standard under "clear Commission precedent." In support of this claim, the employer cites and discusses six unreviewed administrative law judge decisions that, taken as a whole, stand for the following propositions: (a) the Secretary bears the burden of proving an alleged violation of section 1926.20(b) (1) & (2); (b) because these standards are directed to the soundness of an employer's safety program and/or its inspection program, the Secretary must prove a deficiency or defect in the employer's safety or inspection program in order to establish a violation; and (c) the Secretary's burden is not met merely by showing the occurrence of an accident or the existence of hazardous conditions at a worksite because even the best safety program cannot insure against such events.

While we do not disagree with any of these basic principles, see R & R BuiIders, Inc., 15 BNA OSHC 1383, 1991 CCH OSHD ¶ 29,531 (No. 89-282, 1991), we reject Taylor's argument in this case for two reasons. First, it is well settled that, contrary to Taylor's assertion, the cases it has cited do not constitute precedent binding on the Commission, because they are all unreviewed judge's decisions. E.g., Mosser Constr. Co, 15 BNA OSHC 1408, 1411 n.3, 1992 CCH OSHD ¶ 29,546, p. 39,902 n.3 (No. 89-1027, 1991). More importantly, the cases cited by Taylor are all distinguishable from the case that is now on review.

As the Secretary correctly points out in her review brief, the fatal flaw in Taylor's reasoning is the employer's claim that the alleged violation at issue here is based solely "on the existence of the substantive violations involving the manhole [i.e., the two violations already affirmed by the court] and the accident itself":

[S]eparate and apart from evidence that the manhole was not inspected and that an accident occurred, there is ample record evidence that respondent's supervisory personnel who conducted the inspections did not know that dry manholes could be dangerous. Indeed, it was Taylor's defense that neither it nor other contractors knew about the hazard. It is this admitted lack of knowledge on the part of respondent's inspectors which proves that the inspectors were not "competent persons" within the meaning of the standard.

We fully agree.

Also without merit is Taylor's contention that the citation item must be vacated because the evidence it introduced in its defense establishes that it had adopted and implemented a workplace inspection program prior to the accident, as required under the cited standard, while "the ALJ's finding [of noncompliance] is based solely on the fact that Taylor's acknowledged comprehensive safety program did not address one particular hazard." There is indeed some basis for this claim. Thus, it is undisputed on this record that, as a general matter, Taylor had already adopted and implemented an adequate safety program prior to August 19, 1988, including a program of regular and frequent workplace inspections. Accordingly, we must emphasize that our holding in this case should not be construed as a wholesale condemnation of Taylor's safety program or as a broad ruling on the overall competency of Taylor's safety inspectors. [[9]] Instead, this case was tried, and it has been decided, on a far narrower theory.

In summarizing her arguments on review, the Secretary alleged that "Taylor violated 29 C.F.R. 1926.20(b)(1) because its inspection program as well as the competence of its inspectors did not extend to the hazard of asphyxiation in dry manholes, which was responsible for the deaths of three of respondent's employees." We have agreed with this argument as it relates to the competence of the safety inspectors. Under the clear terms of section 1926.32(f), the fact that Taylor's workplace safety inspectors were not "capable of identifying" an "existing and predictable" hazard at the Central Park worksite requires us to find that they were not "competent persons" within the meaning of section 1926.20(b)(2). The fact that they may have been well qualified to identify other safety hazards at that workplace, or at other workplaces, does not preclude us from entering this finding. On the contrary, applying the Secretary's standards as she has written them to the facts of this case neither requires us nor permits us to make a general assessment of the qualifications of Taylor's employees (in terms of their training and experience) to be safety inspectors. We accordingly have made no effort to perform such an evaluation.

For the reasons stated, the judge's finding that Taylor failed to comply with the competency requirement of section 1926.20(b)(2), as incorporated into the cited standard, section 1926.20(b)(1), is affirmed.

Penalty Assessment

The Secretary proposed a penalty of $1000 for the alleged serious violation of 29 C.F.R. § 1926.20(b)(1). Although he did not state any basis for his determination, other than a general reference to the statutory criteria for penalty assessment, [[10]] Judge Brady assessed a penalty of only $200. We conclude, however, that that amount is inadequate in view of the gravity of the violation and the employer's lack of good faith, and we therefore assess a penalty of $500. The gravity of this serious violation, see section 17(k) of the Act, 29 U.S.C. § 666(k), is clear. As the compliance officer credibly testified, if Taylor had provided a "competent person" to inspect the Central Park office complex worksite, that inspector in all likelihood would have foreseen that an employee was eventually going to be exposed to a confined space entry hazard and would have taken the necessary precautions, including atmospheric testing and the providing of personal protective and emergency rescue equipment, to insure that an injury did not occur when the employee entered the manhole. Three wholly preventable workplace fatalities would thereby have been avoided. As for the statutory "good faith" factor, we must balance the commendable measures Taylor has taken to establish a company-wide safety program, including a program of regular and frequent workplace inspections, with the clearly inadequate measures taken to implement that program at the Central Park worksite. On balance, we conclude that this statutory criterion  weighs against Taylor. The employer's efforts to insure the safety of its employees at this particular worksite were clearly deficient.

Order

Accordingly, we affirm citation no. 1, Item 2. We assess a penalty of $500 for this serious violation of the Act.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: June 18, 1992

FOOTNOTES:

[[1]] See Commission's order on Remand (Oct. 18,1991).

[[2]] The repeated references in the autopsy reports of the deceased employees to "sewers" and "sewer shafts" must be viewed, in light of the record as a whole, as factual errors. The clear preponderance of the evidence establishes that this manhole was not a sewer shaft or in any way connected to a sewer.

[[3]] Both Giannini and Garren were long-time employees of Taylor. Project superintendent Garren was one of the three employees who died in the accident at issue. He had been the highest-level supervisory employee at the worksite on a full-time basis, with authority over all of Taylor's employees and subcontractors. He had also been the Taylor employee who bore primary responsibility for onsite project safety at the Central Park worksite. These duties included monitoring job safety on a daily basis. Project manager Giannini, who also had been assigned safety responsibilities on this project, was Garren's supervisor. Giannini's duties, however, were not restricted to this one project, and his contact with the site was therefore limited to occasional visits, "usually a couple of times a week."

[[4]] The cited standard and its critical definition section provide, as follows:

§ 1926.21 Safety training and education.

.......

(b) Employer responsibility--

......

(6)(i) All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required....

(ii) For purposes of paragraph (b)(6)(i) of this section, "confined or enclosed space" means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or enclosed spaces include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs, vaults, and vessels.
(Emphasis added).

[[5]] Section 5(a)(1), the Act's "general duty clause," requires each employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

[[6]] In her review brief, the Secretary correctly argues that § 1926.20(b)(2), the standard that is incorporated by reference into the cited standard, § 1926.20(b)(1), has "[t]wo basic aspects":

First, the standard prescribes what must be done, i.e., "frequent and regular inspections of job sites, materials, and equipment." Second, the standard prescribes who is to do it, i.e., "competent persons."

(Emphasis in the original). Taylor, she argues, has not complied with either of then requirements.

Our conclusion, infra, that Taylor violated the "who" requirement of § 1926.20(b)(2) fully supports our affirmance of the citation item at issue. Accordingly, we need not reach the Secretary's alternative argument that Taylor also violated the standard's "what" requirement.

[[7]] In view of this unrebutted testimony, we agree with Taylor's argument on review that Judge Brady erred in finding that Giannini was "aware of the possibility of air contaminants and reduced oxygen in the manhole" (emphasis added). That finding is hereby set aside.

[[8]] The fact that the three deceased employees were all supervisors--indeed, as indicated supra note 3, Garren was the management representative who had primary responsibility for safety at this worksite--provides further support for our conclusion. That these three employees all entered the shaft without taking any precautions whatsoever is strong circumstantial evidence that they were not "capable of identifying" the hazard to which they were exposing themselves.

[[9]] During the hearing, Taylor attempted to introduce into evidence several documents that had been identified as safety-related materials distributed by the company to its project superintendents. The judge rejected those documents as exhibits. Nevertheless, after reviewing them, he noted for the record that Taylor had "an extensive safety program." Based on our review of the evidence, we agree with this assessment.

[[10]] Section 17(j) of the Act, 29 U.S.C. § 666(j), provides that "[t]he Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect 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."