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United States of America
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC
20036-3457
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Secretary
of Labor,
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Complainant,
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v.
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OSHRC Docket No. 11-1734
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CALPINE CORPORATION, and its successors,
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Respondent.
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ON BRIEFS:
M. Patricia Smith, Solicitor;
Joseph M. Woodward, Associate Solicitor; Heather Phillips, Counsel for
Appellate Litigation; Scott Glabman, Senior Appellate Attorney; U.S. Department
of Labor, Washington, D.C.
For the
Complainant
Frank C. Botta, Esq.; Jeremy L.S.
Samek, Esq.; Willis Siegfried, Esq.; Eckert Seamans Cherin & Mellott, LLC, Pittsburgh,
PA
For the
Respondent
DECISION
Before:
MacDOUGALL, Chairman;
ATTWOOD and SULLIVAN, Commissioners.
BY THE COMMISSION:
Calpine Corporation owns
and operates a power generating plant in Bethlehem, Pennsylvania known as the
Bethlehem Energy Center (BEC). Following
an incident in which an employee fell to his death, OSHA inspected the BEC and
issued Calpine a one-item serious citation with a proposed penalty of $7,000. As amended, the citation alleges that Calpine
violated 29 C.F.R. § 1910.23(a)(7), which requires that “[e]very temporary
floor opening . . . have standard railings, or . . . be
constantly attended by someone[.]”
Administrative Law Judge
Dennis L. Phillips vacated the citation, finding that no Calpine employees were
exposed to the violative condition. For
the following reasons, we reverse the judge and affirm the citation.
BACKGROUND
At the time of the incident,
Calpine had contracted with Siemens Energy, Inc. to perform a maintenance
overhaul of several turbines at the BEC, including a turbine referred to as
CT-6. During the overhaul, Siemens
disassembled and then reassembled CT-6, which contains two combustion chambers
with an upper platform surrounding each chamber that connects via a
catwalk. The platform is slightly more
than seventeen feet above the concrete floor of the building and accessible using
either of two ladders—one for the east chamber and one for the west chamber. To work on CT-6, Siemens had to remove grates
from sections of the platform, creating several openings.
On December 20, 2010,
Calpine’s operations manager, Thomas Narkin, issued a work order that
instructed the Calpine maintenance employees working the night shift to “install
[a] new spark rod . . . in CT-6 where one was ‘borrowed’ for
[another turbine] this past weekend.” The
task, which could be performed by any one of the night shift’s four maintenance
employees, required accessing the upper platform, as the spark rod needed to be
installed near the top of CT-6 in the east chamber. During the night shift that began the evening
of December 20, at approximately 4:30 a.m. on December 21, a Calpine lead maintenance
operator (LMO), Timothy Lewis, entered the building that housed CT-6 using its
southwest access door, intending to replace the spark rod. After Lewis entered the building and looked
up from the ground level, he noticed the openings in the platform and decided
that the task “wasn’t safe to do.”
On the night shift that
began the evening of December 21, Narkin listed the replacement task on a work
order for the second time. He then left
the work order and replacement part in the control room, which is located on
the west side of CT-6. The work order
did not mention that the upper platform contained openings. The platform opening at issue was “pretty
close to” the west chamber ladder and had neither railings nor an
attendant.
During that night shift,
sometime after 3:30 a.m. on December 22, another Calpine LMO entered the CT-6
building with work gloves on and the replacement part in his pocket, but
without the tools required for the replacement task. No one saw what occurred after he entered the
building. His co-workers found him
around 5:30 a.m. on the concrete floor near the base of the west chamber ladder. He suffered fatal head and neck injuries as a
result of a fall.
DISCUSSION
To establish a violation,
“the Secretary must show by a preponderance of the evidence that: (1) the cited
standard applies; (2) there was a failure to comply with the cited standard;
(3) employees had access to the violative condition; and (4) the cited employer
either knew or could have known of the condition with the exercise of
reasonable diligence.” Astra Pharma. Prods., 9 BNA OSHC 2126,
2129 (No. 78-6247, 1981), aff’d in
relevant part, 681 F.2d 169 (1st Cir. 1982).
On review, Calpine argues
that § 1910.23(a)(7) does not apply here because “personal fall protection
was always worn by [its] employees.” By
the standard’s own terms, however, applicability is not conditioned on the
absence of personal fall protection. Rather,
the standard applies whenever there is a “temporary floor opening”; so, the
Secretary’s burden to establish applicability is met when he shows that such an
opening existed. See § 1910.23(a)(7) (“Every temporary floor opening shall have
standard railings, or shall be constantly attended by someone.”). Here, Calpine has not disputed the Secretary’s
contention that the cited platform opening fits within the standard’s definition
of floor opening or that the opening was temporary.
As to noncompliance, the
use of an abatement measure that differs from that specified by a standard is
not a defense. See, e.g., S.A. Storer and Sons Co. v. Sec’y
of Labor, 360 F.3d 1363, 1372 (D.C. Cir. 2004) (finding controlled access
zone was not acceptable means of fall protection under cited fall protection
provision and that argument ignored “plain language of the applicable
regulations”). Calpine neither disputes
testimony from both COs that the cited platform opening lacked railings nor
claims that the opening was constantly attended. Therefore, we find that the Secretary has
established both applicability and noncompliance.
A. Exposure
To establish exposure,
the Secretary must show that an employee was actually exposed to the cited
condition or that access to the cited condition was reasonably
predictable. Phoenix Roofing Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996)
(unpublished). As to actual exposure,
the judge found that there was insufficient evidence that the decedent fell
through the cited opening. On review,
the Secretary makes no claim that the decedent or any other Calpine employee was
actually exposed to the hazard posed by the unguarded opening; so we examine only whether
exposure to the violative condition was reasonably predictable.
Reasonably
predictable exposure is established by proving that “either by operational necessity
or otherwise (including inadvertence) . . . employees have
been, are, or will be in the zone of danger.”
Nuprecon LP, 23 BNA OSHC 1817,
1819 (No. 08-1307, 2012) (citations omitted).
Employees may come within the zone of danger “while in the course of
assigned working duties, personal comfort activities while on the job or their
normal means of ingress-egress to their assigned workplaces.” Gilles
& Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976); Donovan v. Adams Steel Erection, Inc.,
766 F.2d 804, 812 (3d Cir. 1985) (“ ‘access,’ not exposure to danger is the
proper test”). The Secretary need not
show it was certain that employees would be in the zone of danger, but he must
show that exposure was more than theoretically possible. Fabricated
Metal Prods., Inc. 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997); Phoenix Roofing, 17 BNA OSHC at 1079; Kaspar Wire Works, Inc., 18 BNA OSHC
2178, 2195 (No. 90-2775, 2000) (finding that it was “ ‘reasonably predictable’
that an employee would come into contact with the unguarded belt and pulley
either while attempting to reposition the fan, or inadvertently while passing
nearby”), aff’d, 268 F.3d 1123 (D.C.
Cir. 2001).
To make this showing, the
Secretary argues that it was reasonably predictable Calpine employees would be
exposed to the platform opening at issue based on Narkin’s continuing work
order to install the spark rod near the top of CT-6. We agree.
It is undisputed that this assigned task required going on the upper
platform containing the cited opening. The platform was not complete on December 20,
when Narkin initially assigned the task, or on December 21, when he again
assigned the task.
In addition, as the
Secretary argues, there was an established “nexus between the unguarded platform
opening and the likely movements of employees assigned the task of replacing
the spark rod.” Calpine does not dispute
the Secretary’s claim that the cited opening was located “within a few feet of”
and “closely adjacent” to the west chamber ladder. Two photographs in the record, along with
testimony from one of the COs, confirm that the opening was immediately
adjacent to this ladder, which had a hinged gate that allowed entrance onto the
platform. The control room, where the
work order and replacement spark rod were located, was also on the west side of
CT-6.
Although the work order
did not specify that the spark rod needed to be installed in the east chamber,
the record shows that use of the west chamber ladder was part of a reasonably
foreseeable route to where the task needed to be performed. Because a platform surrounded each chamber
and they were connected via a catwalk, the east chamber was accessible via the
west chamber ladder. Three employees
testified that, given that the spark rod and work order had been placed in the
control room to the west of CT-6, the most likely route an employee performing
the task would take after retrieving the replacement part would be to enter the
building through the southwest access door closest to the west chamber ladder,
just as Lewis had done. Indeed, Lewis
explained that this was the “easiest” door to use because it provided ground-level
access and avoided the need to use a vertical ladder while carrying tools or
“hav[ing] to circle around and go into the . . . east side of the building” and
“go down some stairs.” As Lutz described
it, this route was the “path of least resistance.”
Given that the west
chamber ladder was closest to the southwest access door into the CT-6 building,
we find that it was likely an employee performing the replacement task would
use that ladder to reach the platform around the west chamber and use the
catwalk to cross over to the east chamber platform. We also find that because the west chamber
ladder was immediately adjacent to the cited platform opening, it was
reasonably predictable that any employee carrying out the assigned task would
enter the zone of danger posed by the unguarded opening. Nuprecon,
23 BNA OSHC at 1818-19 (finding exposure where it was reasonably predictable
employee would come within six feet of edge); Phoenix Roofing, 17 BNA OSHC at
1079
(“about 12 feet” from unguarded skylights); Dic-Underhill, 8 BNA OSHC 2223,
2229-30 (No. 10798, 1980) (twenty-five or more feet from an
unguarded edge, working towards that edge); Cornell & Co., 5 BNA OSHC 1736,
1738
(No. 8721, 1977) (ten feet from an elevator shaft).
In sum, we find that Calpine
assigned its employees to complete a task that would bring them into the “zone
of danger” posed by the unguarded platform opening. Accordingly, we conclude the judge erred in determining
that the Secretary failed to establish exposure as the record shows it was
reasonably predictable that Calpine employees would have access to the hazard.
B. Knowledge
To
establish knowledge, the Secretary must show that the employer knew or with the
exercise of reasonable diligence could have known of a hazardous
condition. Kerns Bros. Tree Serv., 18 BNA
OSHC 2064, 2067 (No. 96-1719, 2000). A supervisor’s knowledge of the violative
condition is imputable to the employer. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539
(No. 86-360 & 86-469, 1992) (consolidated).
Here,
the Secretary sought to establish both actual and constructive knowledge of the
unguarded platform opening. As to actual
knowledge, the Secretary claims that five Calpine supervisors knew the platform
opening was unguarded on December 21, the day before the accident. The judge agreed, finding that all
five supervisors had actual knowledge of the violative condition and that their
knowledge was imputable to Calpine.
Calpine
does not dispute that it had actual knowledge on December 21, but it argues
that its supervisors lacked knowledge of the violative condition during what it
asserts is the two-hour time period relevant to the citation—between
approximately 3:30 a.m. and 5:30 a.m. on December 22. According to Calpine, (1) the supervisors who
knew of the condition on December 21 were no longer present at the BEC on
December 22; (2) conditions in the CT-6 building were constantly changing; (3)
it was entitled to rely on Siemens’ representation that it expected to reinstall
the grates to cover the platform openings during its own night shift, which ran
from 5:00 p.m. to 3:30 a.m.; and (4) it could not have determined the condition
of the platform until after Siemens’ night shift concluded because “[t]here
were no non-Siemens’ employees present between the time they ended their shift
and the time that [the decedent] entered the CT-6 building shortly thereafter.”
Contrary to Calpine’s
claim, the parties tried the case on the conditions that existed during the
Calpine night shift that began on December 21 and continued through the morning
of December 22. This is consistent with
the citation, which asserts that the violative condition existed “on or about
December 22, 2010.” Moreover, even if the period of the alleged violation was
limited to the two‑hour period as Calpine alleges, the Secretary has
nonetheless established the company’s actual knowledge of the violation. Calpine’s five supervisors knew of the
opening on December 21, and their absence in the early morning hours of
December 22, when the cited opening still existed, does not magically erase that
knowledge. See Caterpillar, Inc., 17
BNA OSHC 1731, 1732 (No. 93-373, 1996) (termination of a supervisory employee’s
employment prior to the time of the cited condition did not vitiate the
departed supervisor’s knowledge of a previous occurrence of the same condition)
(citing cases and Restatement (Second) of Agency), aff’d, 122 F.3d 437 (7th Cir. 1997).
Calpine’s
other arguments—that it lacked knowledge because conditions were changing, that
Siemens had represented that it expected to reinstall the missing grates, and
that there were no “non-Siemens’ employees” (i.e., supervisors under Calpine’s
control) in the CT-6 building during the two-hour window—are misplaced. Each of these assertions address whether
Calpine, “with the exercise of reasonable diligence, could have known of the
presence of the violative condition”—in other words, whether in light of these
alleged facts it was unreasonable to expect Calpine to have learned of the
opening. Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-692, 1992); see also Astra Pharm. Prods., Inc., 9 BNA OSHC at 2129. Defending against a finding of actual
knowledge by making arguments relevant to constructive knowledge is
inconsistent with Commission precedent: the Secretary meets his knowledge
burden when he shows actual or
constructive knowledge—he need not establish both. See,
e.g., Tampa Shipyards, Inc., 15
BNA OSHC at 1537-39 (Secretary
established knowledge by showing actual knowledge of supervisors). Therefore, we find that Calpine had actual
knowledge of the unguarded platform opening on December 21.
Calpine’s arguments are
not even meritorious when construed as a challenge to constructive knowledge. Regardless of whether conditions in the BEC
were “constantly changing,” Calpine had an obligation to “inspect the [work]
area to determine what hazards exist or
may arise during the work before permitting employees to work in an area,
and the employer must then give specific and appropriate instructions to
prevent exposure to unsafe conditions.” Automatic Sprinkler Corp. of Am., 8 BNA
OSHC 1384, 1387 (No. 76-5089, 1980) (emphasis added). See
also Pride Oil Well Serv., 15 BNA OSHC at 1814 (employer required to
“inspect the work area, to anticipate hazards to which employees may be
exposed, and to take measures to prevent the occurrence”) (internal citations
omitted). Despite knowing of the unguarded
opening on December 21, none of the Calpine supervisors handed off that
information, such as through written instructions in the work orders. See
Wiley Organics, Inc. d/b/a Organic Tech.,
17 BNA OSHC 1586, 1597 (No. 91-3275, 1996), aff’d,
124 F.3d 201 (6th Cir. 1997) (“An employer has a general obligation to inform
itself of the hazards present
at the worksite and cannot claim lack of knowledge resulting from its own
failure to make use of the sources of information readily available to it.”)
(citations omitted).
As to Siemens’
representation that it expected to reinstall the missing platform grates during
its day shift on December 21, the record shows
that this work was in fact not completed during that shift and was instead
carried over to the next Siemens shift, as reflected on the turnover report. Rice explained that Siemens’ turnover reports
were “general reports, I mean we throw a bunch of stuff out there and you get
what you can. And then you roll it over
to the next shift.” As such, Calpine
knew that on prior occasions, not all planned work was completed during a
designated Siemens shift. In addition,
Rice and Killgore testified that there was a significant amount of work Siemens
needed to do during the overhaul, noting that “[i]t’s pretty hectic” and
various things, including an approaching storm on December 21, could affect the
progress of Siemens’ work schedule. Indeed,
when Rice left the building around 2:00 a.m. on December 22, it was readily
apparent that not all of the platform grates had been put back. As the Siemens crew was cleaning up rather
than continuing to work at that point, he would have had no reason to think
that they would complete that work before the end of their shift.
For all of these reasons,
we find that the Secretary established that Calpine had both actual and constructive
knowledge of the violative condition.
C. Unpreventable Employee Misconduct (UEM)
Defense
To
establish that a violation was the result of UEM, an employer is required to show
that it: “(1) established work rules designed to prevent the violative
conditions from occurring; (2) adequately communicated those rules to its
employees; (3) took steps to discover violations of those rules; and (4)
effectively enforced the rules when violations were discovered.” Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No.
94-0588, 2007). Calpine’s allegation of
this defense is conditional—the company claims that if the decedent had gone on the CT-6 platform without using
personal fall protection (a point Calpine does not concede), such action would have constituted UEM.
It should be obvious that
misconduct is a prerequisite element of the UEM defense. Indeed, the defense is predicated on the notion
that an employer should not be held responsible when the cited violative
condition was caused by an employee’s misconduct if that misconduct was not
reasonably foreseeable:
An isolated brief violation of a standard by an employee
which is unknown to the employer and is contrary to both the employer’s
instructions and a company work rule which the employer has uniformly enforced
does not necessarily constitute a violation of section 5 (a)(2) of the Act by
the employer.
Standard
Glass Co., Inc., 1 BNA OSHC 1045, 1046 (No. 259, 1972)
(emphasis added). Here, the violative
condition was the absence of either railings or an attendant at a temporary floor
opening on the platform. 29 C.F.R.
§ 1910.23(a)(7). Calpine does not
assert that its failure to install railings or assign an attendant was the
result of misconduct. In addition, personal
fall protection was not a compliance option; so Calpine’s rule requiring
employees to use personal fall protection at heights greater than four feet “is
not equivalent to the cited standard” and thus fails to satisfy the first prong
of the UEM defense. Daniel Int’l Corp., 9 BNA OSHC 2027, 2031 (No. 76-181, 1981)
(rejecting UEM defense based on employees’ failure to tie-off where
construction fall protection standard required openings to be protected by
guardrails or covers, stating that the employer’s tie-off rule “is not
equivalent to the cited standard”); see also
Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1075 (No.
09-1072, 2013) (employer’s monitoring and enforcement of work rule that did not
meet cited provision’s requirements could not be used to establish UEM defense). In short, Calpine has not even alleged
conduct that would be relevant to the defense.
Even
if the failure to use personal fall protection could constitute misconduct and
Calpine had shown that the decedent had gone on the platform without using it,
the defense would still fail because Calpine has not shown misconduct by the other employees on the crew, any one of
whom was expected to complete the task and for whom exposure to the violative
condition has been established—a predicate evidentiary burden here that rests
with Calpine, since UEM is an affirmative defense. Daniel
Int’l Corp., 9 BNA OSHC at 2031. In
fact, Calpine has not even shown that the decedent went on the platform. Therefore, we reject Calpine’s UEM defense.
D. Multi-Employer Worksite (MEW) Defense
To establish the MEW
defense, an employer must show that it neither created nor controlled a
hazardous condition to which its own employees were exposed and that it took
reasonable alternative steps to protect its employees from the hazard. Rockwell
Int’l Corp., 17 BNA OSHC 1801, 1808 (No. 93-45, 1996); Atl. Battery Co., 16 BNA OSHC 2131, 2166 (No. 90-1747, 1994)
(multi-employer worksite defense failed when employer had control over the
cited condition); Grossman Steel &
Aluminum Corp., 4 BNA OSHC 1185, 1190 (No. 12775, 1976) (employer bears the
burden of establishing multi-employer worksite defense).
Calpine claims that
Siemens had primary operational control over CT-6, including the platform
openings that Siemens created during the overhaul. As the judge found, however, Calpine retained
ownership and control of the entire BEC and never ceded any portion of that
control to Siemens. Calpine supervised
Siemens’ overhaul work and regularly had its own supervisor in the CT-6
building to oversee their work. In
addition, Calpine performed contractor safety audits during which it pointed
out safety issues for Siemens to correct and stopped work when Siemens
employees were found to be working in an unsafe manner. There is also no evidence that Calpine either
lacked the authority or ability to comply with the standard or to order Siemens
to comply. See Union Boiler Co., 11 BNA OSHC 1241, 1246 (No. 79-232, 1983) (MEW
defense requires showing that the employer did not possess the expertise,
personnel, or means to correct the hazard).
Therefore, Calpine has not shown it lacked “operational control” while
Siemens performed the overhaul work. Cf. Otis Elevator Co., 4 BNA OSHC 1219,
1223 (No. 8468, 1976) (finding that cited employer’s joint control of the
location of the hazard was sufficient to affirm the citation). Accordingly, Calpine was a controlling
employer whose own employees were exposed to the cited condition, which makes
it fully responsible for complying with the cited standard as an exposing
employer. See, e.g. McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109 (No.
97-1918, 2000) (recognizing that a controlling employer’s duties include protecting
its own employees). We therefore find
that Calpine has not established the MEW defense.
Accordingly,
we affirm the citation as serious and assess the $7,000 proposed penalty.
SO ORDERED.
/s/
Heather
L. MacDougall
Chairman
/s/
Cynthia
L. Attwood
Commissioner
/s/ James
J. Sullivan, Jr.
Dated: April
6, 2018 Commissioner
of an accident, the Occupational
Safety and Health Administration (“OSHA”) initiated an inspection of Calpine Corporation’s
(“Respondent” or “Calpine”) Bethlehem Energy Center (“BEC”) facility in Bethlehem,
Pennsylvania. (SF-5).
In June 2011, OSHA issued a “serious”
citation, alleging a violation of 29 C.F.R. § 1910.23(a)(8), unguarded floor
hole, and proposing a penalty of $7,000.00.[15] Calpine filed a timely notice of contest,
bringing this matter before the Commission.
In her complaint, the Secretary of Labor amended the citation to allege
a violation of 29 C.F.R. § 1910.23(a)(7), unguarded temporary floor opening. In its answer, Calpine set out 19 affirmative
defenses.[16] An eight-day hearing was held in Philadelphia,
Pennsylvania in May and June, 2012. The
parties submitted a joint pre-hearing statement, post-hearing briefs, and reply
briefs. (SF-2 through 4, 15).
Jurisdiction
Based upon the record, the Court finds
that Calpine, at all relevant times, was engaged in a business affecting
commerce and was an employer within the meaning of §§ 3(3) and 3(5) of the Act,
29 U.S.C. §§ 652(3) and (5). See pleadings.
The Court concludes that the Commission
has jurisdiction over the parties and subject matter in this case. (SF-1).
Stipulated Facts
The parties stipulated the following
facts in their joint pre-hearing statement.[17]
1. Respondent is an employer engaged
in a business affecting commerce within the meaning of 29 U.S.C. § 652(5), and
Respondent utilizes tools, equipment, machinery, materials, goods and supplies
which have originated in whole or in part from locations outside the state of
Pennsylvania.
2. Calpine timely filed a Notice of
Contest to the Citation.
3. On September 16, 2011, the
Secretary of Labor (“Secretary” or the “DOL”) filed a Complaint with the
Occupational Safety and Health Review Commission (“OSHRC”). In her Complaint, the Secretary amended the
Citation to read as follows, replacing the original language.
Citation 1 Item 1a Type of Violation: Serious
29 CFR [§] 1910.23(a)(7): Temporary floor
opening(s) were not guarded by standard railings or constantly attended by
someone:
(a) CT6, adjacent to the ladder access way
– On or about December 22, 2010, a temporary floor opening in the steel grated
platform, which surrounded the turbine chamber was not guarded by standard
railings or constantly attended to prevent employees from falling a distance of
no less than 16 feet through the unguarded opening.
4. Calpine filed a timely Answer to the DOL
Complaint, denying the material allegations thereof and asserting various
affirmative defenses.
5. Bethlehem Energy Center is located at 2254 Applebutter
Road, Bethlehem, Pennsylvania 18015.
6. Joseph Miller is an employee of Calpine
Corporation.
7. Joseph Miller was the Plant Manager of
Bethlehem Energy Center at the time of the accident.
8. Thomas Narkin is an employee of Calpine
Corporation.
9. Thomas Narkin was the Operations Manager of
Bethlehem Energy Center at the time of the accident.
10. During the week of December 20, 2010, Siemens
Energy (“Siemens”) was in the process of re-assembling the CT-6 turbine. As part of that process, Siemens scheduled its
12/21/10 Day Shift (i.e., 7:00 a.m.
to 5:00 p.m.) crew to re-assemble the platforms and catwalks, which surround
and connect CT-6 combustor silos BK-1 and BK-2.
The Day Shift crew did not complete that task, however.
11. Completion of the CT-6 platforms/catwalks
configuration, which includes the BK-2 Platform, was left for Siemens’ 12/21/10
Night Shift crew (i.e., 5:00 p.m. to 3:30 a.m.). Siemens’ 12/21/10 Night Shift crew did not
complete said platforms/catwalks configuration.
12. When Siemens’ 12/21/10 Night Shift crew left
the BEC at 3:30 a.m. on December 22, 2010, the BK-2 Platform was not completely
re-assembled.
13. Using a laser measuring device, the coroner
determined the BK-2 platform to be 17’ 1 31/32” above ground level.
14. Photographs of the BK-2 Platform, which were
taken by both OSHA and the Police, as well as OSHA’s own admission reflect that
“the tarps were still on the BEC Unit 6 turbines at the time of the
Incident.” (DOL-000632.)
15. Respondent has the burden of establishing the
affirmative defense of unpreventable employee misconduct on the part of its
employee [the decedent].[18]
Relevant Testimony
The
BEC facility is a power-generating facility spread over 52 acres with two river
water cooling towers, two steam turbine buildings, six combustion turbine
buildings, two heat recovery steam generator buildings, two gas pressure
buildings and a chemical addition building.
An administrative office, maintenance shop and main control room are
also at the BEC facility. Several
combustion turbines are located at six combustion turbine buildings. The accident prompting the inspection took
place in the combustion turbine building referred to as CT-6.[19] CT-6’s gas combustion turbine is a Siemens model
V84.2. (Tr. 444-45, 505, 948, 1360, 1384,
1422-23, 1439; RX-P, at p. 5, RX-MM-I).
The BEC facility was commissioned in
2002 and transferred to Calpine’s ownership in July 2010.[20] Joseph M. Miller III became the plant manager
at the BEC facility at that time.[21] Previously, Mr. Miller was the operations and
maintenance manager at a power plant in Wilmington, Delaware for about ten
years. (Tr. 1447, 1531-32; SF 6-7, 9).
Thomas
Narkin became the Operations Manager at the BEC facility in the spring of
2009. Mr. Narkin is responsible for
managing 17 operator maintenance technicians (“OMT”), four of which are lead
maintenance operators (“LMO”).[22] He graduated from Widener University and is
an electrical engineer. LMOs operate the
BEC facility, perform maintenance work, and help coordinate what gets done each
day. In December 2010, there were four
LMOs – Raymond Lutz, William Varga, Timothy Lewis, and the decedent.[23] (Tr. 439-40, 566-67, 606, 693-95, 988-89, 992,
1435-39, 1440; SF-8 through 9).
Calpine’s
operations staff worked in 12-hour shifts starting at 6:00 a.m. and 6:00 p.m. There were four operations staff members per
shift – three OMTs and one LMO.[24] Each LMO is responsible for the oversight of three
OMTs per shift. An OMT’s routine duties
include checking meter readings, plant chemistry, starting and stopping
equipment, observing equipment for potential problems, controlling
megawatt-levels, maintaining offsite auxiliary equipment, and general light
maintenance. Mr. Narkin stated that OMTs
are required to inform him of any unusual condition and either stop or not
start a job when they discover a safety issue.
He testified that an LMO is responsible for his own safety, the safety
of his crew, and delegating work tasks.[25] In addition, Mr. Narkin testified that one of
the LMO’s duties including attempting to resolve safety issues, and, if unable
to do so, to then contacting the on-call supervisor. [26] (Tr. 441-42, 694, 999, 1440-47; RX-X).
The Overhaul Project
In
2010, Calpine hired an outside contractor, Siemens, to perform a maintenance
overhaul of several turbines at the BEC facility. The overhaul effort included CT-6’s gas turbine’s
disassembly and reassembly.[27] At the time of the accident, Siemens was overhauling
the CT-6 turbine and it was in outage mode (not generating energy).[28] Mr. Narkin testified that during the overhaul
Siemens directed and controlled the end of CT-6 where the turbine was located.[29] Calpine employees were occasionally borrowed
to perform tasks at Siemens’ request.
(Tr. 453, 1365, 1384, 1474-80; RX-N, RX-P, at p. 40).
Raymond
Rice and Roy Killgore were turbine engineers for Turbine Maintenance Group
(“TMG”) and worked at the BEC facility during the overhaul project.[30] TMG, a division of Calpine Operating Services
Company, Inc. (“COSCI”), is based in Pasadena, Texas. TMG oversees the Master Agreement between
Siemens and Calpine and the Operating Plant Service Agreement (“OPSA”) between
COSCI and Siemens and provides technical oversight during overhauls at
approximately 97 Calpine-owned facilities in the United States. Mr. Narkin explained that the TMG engineers served
as an intermediary between Siemens and BEC’s plant management.[31] Mr. Miller testified that “the TMG group is
kind of like an internal subcontractor, ….”
He also stated that Mr. Killgore was “kind of the company administrator”
for the OPSA between Siemens and Calpine.
(Tr. 932-33, 942-45, 1068-70, 1080. 1333-34, 1476, 1569-70; RX-N, RX-P).
Messrs.
Killgore and Rice were on site to ensure that Siemens followed the technical specifications
for the overhaul project. They worked
hours to correspond with the Siemens crews’ shifts. Mr. Rice had oversight for the night shift; Mr.
Killgore was on the day shift. Mr.
Killgore estimated that during the overhaul he spent 60% to 90% of his time in
the area where Siemens was working. (Tr.
937-38, 1375-78, 1385; JX-VII at p. 5).
Mr.
Killgore testified that Siemens personnel conducted a daily turnover meeting to
“basically recap the day’s work for their night shift people coming in, and the
night shift was gathering that information so they could go to work.” Messrs. Killgore and Rice attended the
meeting to review the technical issues and determine whether BEC staff would be
needed to perform a task. Siemens also
prepared a Shift Turnover Report that showed work that had been accomplished
and identified work to be scheduled. Mr.
Rice testified that a completed copy of the Siemens Shift Turnover Report for
the December 21, 2010 dayshift was not sent to Calpine’s Control Room on the
evening of December 21, 2010.[32] That report indicated that the platforms and
catwalks had been hot bolted by about 5:00 p.m., December 21, 2010, but further
work needed to be scheduled to torque the platforms and double nut them as
necessary for looseness.[33] The Shift Turnover Report completed for the
5:00 p.m. through 3:30 a.m., December 21-22, 2010 night shift continued to
indicate that work needed to be scheduled to finish torqueing the platform
sections.[34] (Tr. 366-67, 424-25, 964-77, 981-82, 1288-90,
1376-79; JX-III, at p. 2, JX-VII, at p. 10, JX-XV, GX-7).
Mr.
Killgore prepared the “Calpine TMG Daily Shift Turnover Report” each morning, which
was then sent to Mr. Rice, Mr. Miller, TMG’s management, and Calpine’s regional
vice president, Bill Ferguson. [35] The report was also a summary of what Siemens
had accomplished in the prior 24 hours.[36] Mr. Killgore received the information for
this report from the Siemens daily turnover meeting he attended and a report that
Siemens sent to him between 6:00 a.m. and 8:30 a.m. each morning which listed
the work done overnight.[37] Mr. Killgore also testified that one of his
duties was to show Siemens’ employees a safety video as part of Calpine’s safety
training of Siemens’ personnel working at BEC.
(Tr. 1020, 1076-80, 1379-82, 1424-25, 1572; GX-8, GX-9, GX-13).
Siemens
controlled the priority of the work tasks related to the overhaul. Mr.
Killgore explained that the project’s status could change quickly because
Siemens had to deal with various factors, such as the weather, while trying to
meet its schedule. For example, Mr. Rice
testified that on December 21, there was a blizzard predicted so the early part
of that night’s shift was dedicated to getting a roof panel replaced. (Tr. 900-01, 961-62, 965, 1377, 1395, 1538-39;
RX-D). Mr. Rice testified that work by a
BEC employee in the overhaul work area was limited to those tasks necessary to
assist Siemens during the outage.[38] Siemens was not allowed to perform certain
tasks at the BEC facility. For example,
if Siemens needed a piece of instrumentation moved, it would request a BEC
technician to perform the work. (Tr.
1385-86). Messrs. Lewis, Lutz, Miller and Rice
confirmed that BEC staff was only in CT-6 during the overhaul to perform
certain limited tasks.[39] Mr. Killgore’s duties included coordinating tasks,
such as to remove wiring, electrical hookups, or conduct crane operations, that
Calpine BEC employees needed to perform in the southern half of CT-6 while
Siemens was engaged in its overhaul work in that area. (Tr. 454, 529, 644-45, 959-60, 1018-19, 1385-87).
Mr.
Killgore testified that Siemens could begin to reassemble the catwalk platforms
after completing the re-installation of the rotor, compressor blade and turbine
vane carriers, center and exhaust cases, and blow off line in CT-6’s
turbine. (Tr. 1393). Siemens installed the center case during the
December 20, 2010 night shift. (GX-6, at
p. 2). Siemens hot-bolted the platforms
and catwalks around the two combustion chambers during the December 21, 2010
day shift. Siemens’ December 21, 2010
night shift did not perform any work on the upper platforms in CT-6. Siemens’ December 21, 2010 night shift Shift
Turnover Report indicated that “Finish torquing platform sections” was
scheduled work that needed to be done.
(Tr. 1394-96; GX-7).
During
the overhaul project, Thomas McClelland[40] performed
tasks in CT-6 in December, 2010. Mr.
McClelland testified that in order to remove a pipe in CT-6, “I went into the
enclosure to assess the job. Looked up
to see where I had to work and made sure it was safe or if it wasn't, which at
that time it was not. So I went back and
got my fall protection, came back, did the job.” He testified that he used fall protection
because the catwalk platform was not complete.[41] A few days before the accident, Mr. McClelland
went back to replace the same pipe in CT-6.
Again, he “walked over to the unit, looked around where I needed to
work, made sure it was safe, and if not went back and got my safety equipment
and then went and did my job.” He
testified that he assessed the situation before he did any work because that
was a “personal way I work”, safety training he had, and Calpine’s safety
policies. (Tr. 1798-1804).
Mr.
Narkin prepared a night order for each upcoming BEC night shift. The night order was a list of tasks to be
done, generally listed in the order of priority. Mr. Narkin testified that he did not expect
all the listed tasks to be done on a particular night. If a task was critical he would note it as such
with a desired completion date. Further,
Mr. Narkin testified that he put some tasks on the list in advance of the
needed completion date as a way to encourage communication between him and the
operations staff about a planned future task.
(Tr. 447, 1462-71).
Mr.
Lutz described a night order as the way management relayed tasks to the night
shift. Night orders were placed on the
Control Room’s counter by the operations manager, Mr. Narkin. These tasks were in addition to the routine
duties of the operations staff. The
night order was primarily for the LMO’s use, but it was available to any
employee. Mr. Lutz explained that the
expectation was to complete as many tasks as possible from the night order. Mr. Lutz further explained that there was some
pressure to get priority tasks that were critical done for the next day’s
shift. He also testified that in
December 2010 it was common for LMOs to enter into CT-6 to assist Siemens by turning
on or off one of Calpine’s pumps, as well as to perform minor “quickie” jobs
that did not require much time to complete.[42] One such job included performing plastic
sheeting repair work to protect electrical components when the roof was
removed. (Tr. 447-51, 455-56, 530-31,
644, 991, 1478; JX-XIII, GX-10).
Mr.
Narkin testified that employees have discretion as to which tasks will be done
each night and that employees can skip tasks, “which happens a lot.” Mr. Narkin testified that besides being able
to skip items on the night orders when there was not time to complete the task
by the end of a shift, employees were expected to skip a task when it could not
be performed safely. Mr. Lewis confirmed that safety issues,
potential hazards, physical capabilities of the person performing the task,
weather conditions, and operational conditions were all reasons to skip over a
task on a night order.[43] Mr. Varga testified that he did not believe
anyone had ever been disciplined for not completing a task on a night order. He also agreed that it was appropriate to
assess environmental conditions before performing any task. (Tr. 649-50, 741-42, 1462-64).
Mr.
Lutz testified that he told Mr. Narkin that the men were feeling stressed about
finishing all the tasks on the list each night.
Mr. Narkin then sent out three emails clarifying the priority of tasks
on a night order. Mr. Narkin sent these
emails on August 20, November 18 and November 24, 2010. The emails were written to remind the
employees that the jobs on the night orders were to be completed only if time
and conditions allowed, that the listed tasks were secondary to their routine
duties and safety training, and that Mr. Narkin did not expect them to complete
all the tasks listed during that shift.
The decedent was one of the recipients of these emails. (Tr. 539-40, 548-50, 651-52, 1465-71; RX-DD).
On
the December 20 night order, Mr. Narkin included an assignment to re-install a
spark rod[44] where
one had been removed a few days before from CT-6’s east combustion chamber burner
by the deceased.[45] Mr. Narkin testified that he knew that
installing the spark rod in CT-6 required the use of the upper platform that
surrounded the combustion chambers. He
also testified that he did not take any steps at that time to determine the
condition of CT-6’s catwalk platform. (Tr. 1003-4; GX-5).
Mr.
Lewis attempted to complete the spark plug replacement assignment at
approximately 4:30 a.m. on December 21. He
did not know into which of the two combustion chambers the spark plug was to be
installed.[46] (Tr. 460-63, 566, 569-74, 998, 1003-06,
1483-85; GX-5, RX-MM). Mr. Lewis further
testified that he entered CT-6’s southern door after exiting the Heat Recovery
Steam Generator (“HRSG”) building. The
farthest point he reached was directly south of the west combustion
chamber. From there, he could see that “[t]he
tops of the combustion chambers were covered with tarps over the top of the
burners where this spark rod assembly would go . . . . in addition to the tarps
covering the combustors there was decking missing from these catwalks.”[47] He also testified that he observed the opening
in the platform from floor level and that it was so obvious that it took him only
a minute to assess the condition of the platform.[48] Mr. Lewis did not climb up to the 17- foot platform
to install the spark rod because he felt the floor opening made it unsafe and
Calpine policies forbid working in an area where there was an uncovered opening
unless the opening was covered or barricaded.
(Tr. 571-73, 578-81, 654, 661-62, 666, 670, 679-80; RX-MM-E).
At
the end of his shift on the morning of December 21, Mr. Lewis informed the next
shift’s LMO, Mr. Lutz, that the platform surrounding the combustion chambers
was unsafe for travel because it had unguarded floor openings.[49] Mr. Lewis did not work on December 22,
2010. Mr. Lewis testified that, “to the
best of [his] memory,” Mr. Narkin was present when he told Mr. Lutz about the
openings in the platform.[50] (Tr. 533, 581, 587, 671-75). Mr. Lutz confirmed that Mr. Lewis told him
about the missing grates in the catwalk platform that morning. Mr. Lutz believed Mr. Narkin was in the room at
the time, but he was not “100% sure.” [51] (Tr. 461-63, 541-42, 533-38, 550). However, Mr. Narkin testified he was not advised
of the platform’s condition by Messrs. Lewis or Lutz on the morning of December
21. (Tr. 1488-89).
On
the December 21 night order, Mr. Narkin again included the task to install a
spark rod in CT-6’s east combustion chamber.[52] The December 21 night order carried over this
task from the previous night, with the added phrase: “[i]f tarps and Siemens are not in the way.”[53] Mr. Narkin was told to add this phrase, but
he could not recall who told him to do so.
Mr. Narkin testified he did not question the meaning of the phrase
because it seemed very clear. To him it
meant that the tarps covering the turbine were off and that Siemens’ “people”
and “stuff” were gone.[54] He testified that the “tarps were gigantic. And for them to not be in the way, they would
have to be off. They were huge.” (Tr. 166, 1006-08, 1485-88, 1517-18; JX-XIII)).
Mr.
Lutz testified that when BEC operations staff changed shifts there was usually a
discussion between the shift LMOs to pass along operational and safety
information to the next shift.[55] If Mr. Lutz could not attend he would
generally have someone fill in for him. Mr.
Lutz also testified that for his December 21 day shift, he left a few hours early
and was not there to tell the next shift’s LMO about the condition of the
platform.[56] The decedent was the LMO for the December 21
night shift. (Tr. 544-47).
Mr.
Rice’s last shift at the BEC plant was the night of the accident. He left before the end of the shift, at
approximately 2:00 a.m. He left earlier
than normal because Siemens had finished the technical aspects of the job and
was performing clean-up work for the remainder of the shift, which ended at
3:30 a.m.[57] Only Siemens’ employees were in CT-6 between
2:00 a.m. and 3:30 a.m. on December 22.
(Tr. 937, 940, 971, 980-81).
The Accident
Raymond
Lutz arrived at the BEC facility at about 5:15 a.m. on Wednesday, December
22. When he arrived, he was told by
other Calpine employees that they were looking for the decedent.[58] The decedent’s body was discovered in CT-6 a
few minutes later.[59] Mr. Lutz then went to CT-6 and saw the
decedent lying on the concrete floor near an access ladder leading up to the
northwest part of CT-6’s west combustion chamber.[60] He testified that the area was “kind of
shadowy.”[61] Using a flashlight and not wanting to move the
deceased, Mr. Lutz concluded that the deceased had perished. (Tr. 483-91, 496; RX-MM).
On
December 22, 2010, Mr. Varga reported to work at about 5:30 a.m. and went
directly to CT-6 when he learned of the accident and saw the deceased lying on
his belly. Mr. Varga testified that it
was “rather dark” inside CT-6 and he used a flashlight to see better. He testified that the deceased’s legs were on
either side of the access ladder that led to a combustion chamber with his
crotch pressing very tightly at an elevated level against the access ladder’s
left upright. Mr. Varga agreed that it
was “very apparent” that there were holes in the catwalk platform. He further agreed that he would have worn a
harness for safety reasons if he were to have ascended to the catwalk platform.[62] He also testified that the deceased’s head was
a couple of inches from the right upright of the shorter ladder that led to the
IGV platform. Mr. Varga testified that
one of the openings in the platform surrounding the combustion chamber was
“pretty much right above” where the decedent’s body was discovered.[63] He testified that he did not recall seeing any
tarps covering the combustion chambers. He
was at the north side of the west combustion chamber for less than five
minutes. (Tr. 695-97, 708-09, 725-26, 731-32,
737-38; RX-MM-F).
Coroner
Lysek[64]
arrived at the BEC facility between 6:00 a.m. and 7:00 a.m. to investigate the
reported death of an employee.[65] Upon arrival he was directed to CT-6. Mr. Lysek ascertained that the lighting was the
same as it would have been when the decedent entered CT-6 a few hours
prior. He testified the lighting in CT-6
was “adequate enough that I could look up and see the grating and make out
everything” and that he could clearly see the missing grates which were “leaning
against the railing” on the catwalk; he could see this without a flashlight or
other type of lighting device. (Tr. 1588-92,
1607, 1651-54, 1718-19).
Coroner
Lysek explained that on the day of the accident he observed the body and the
area surrounding it.[66] He testified that the decedent’s gloves were
not misplaced and were on each hand properly.[67] There were no tears in his jacket and it
“appeared perfectly fine.” He further
testified that decedent's head was lying face down on the concrete floor positioned
about an inch or two from the short access ladder (identified with the letter
“D” on RX-MM-I) with seven steps leading to the lower platform (also referred
to by Coroner Lysek as a catwalk) to the east (identified with the letter “E”
on RX-MM-I). There was a wet area on the
concrete floor that extended from the west wall over to the west side of the
combustion chamber. Coroner Lysek
described the lower platform as a metal grate walkway about three to four feet
wide, about seven feet off the ground.[68] Two bars, a lower bar and an upper bar,
protected and confined the lower catwalk’s space. There was a gate atop the short access
ladder that had to be opened to stand on the catwalk. He testified that the catwalk extended to the
combustion chamber’s south side. Immediately
north of the short access ladder, he described an area where there were two
six-inch I-beams, one north and one south, that extended from left to right
from the lower catwalk, and a catwalk to the left and west side. He testified that there was a small section of
particle board (also referred to as composite plywood) over the southern
I-beam. He testified that there was
another steel grated platform area that he identified at “H” on RX-MM-I, to the
left of the particle board (looking north), where there was another ladder that
extended from the floor where the deceased was found up to a platform that was
about the same elevation as the lower catwalk at RX-MM-I at “E”. The
distance from the particle board to the lower platform ladder at “D” was very
short. (Tr. 383, 1597-1610, 1623-26, 1647-49, 1671-72,
1731; JX-XXXIV, RX-L, RX-MM-I).
Coroner
Lysek testified that the west combustion chamber was “obviously under
construction” with various light stands and tools set about the walls. Upon entering, he saw that “the top of that
whole chamber was tarped with a very heavy green tarp.” He saw two sections of grate missing from the
upper platform (also referred to herein as the “upper catwalk”) that surrounded the west combustion chamber,
one on the south side that he identified as “I” on RX-MM-I and another on the
north side that he identified as “J” on RX-MM-I.[69] He also saw areas of yellow caution tape
hanging downward from the upper platform walkway. (Tr.
1605-07, 1654, 1718; RX-MM-I).
Coroner
Lysek took photographs of the area surrounding and above the location of the
body. He examined the nearby lower
platform which was about seven feet above the floor, the higher, upper platform
(where the grated floor sections were missing) which was 17 feet,1 and 31/32 inches,
above the floor (hereinafter any reference to “17 feet” or “17-foot” is
referring to an actual height of 17 feet, 1 and 31/32 inches above the floor), and
the corresponding access ladders for potential evidence. In an effort to identify any evidence that
might suggest the origin of where the deceased fell from, he climbed over a three
to four foot high railing that partitioned the lower platform at “H” from the
lower platform at “E” identified on RX-MM-I,[70] and
another railing on the east, right side of the lower platform. He then carefully walked across the two
I-beams using his left foot on the northern I-beam and right foot on the
southern I-beam and climbed over another railing in order to reach the lower
platform at “E” identified on RX-MM-I.[71] Using the caged access ladder at “B”, he then
climbed to the upper platform and looked down through the hole on the catwalk
and saw two pieces of grating that fit the two openings leaning up against the
railing at the west side of the west combustion chamber. (Tr. 161, 333-34, 1597-1613, 1622, 1630-31,
1715; JX-XIV, at p. 10, JX-XVI, at p. Calpine000089, JT-XXXIV, RX-MM-I).
During
his testimony Coroner Lysek described the opening in the upper catwalk platform
that was closest to, and when climbing up to the left of, the caged access
ladder.[72] He testified that he would expect there to
have been contact between the body and the opening’s metal surfaces if someone
of the decedent’s size had fallen through.
He found no physical evidence to indicate the deceased had fallen
through or near the platform opening.[73] Also, the body’s location was not directly
below the opening, which made it improbable he fell from the upper catwalk
platform.[74] He testified that the lower seven foot high platform
at “E” was “directly above the body.” Coroner
Lysek said that he used a very accurate Leica DISTO meter, D-8, to measure that
the distance from the concrete floor to the bottom of the upper catwalk was 17
feet, 1 and 31/32s inches. (Tr. 1617-19,
1622-23, 1633, 1642, 1652, 1683-85, 1710-11; JX-XVI, JT-XXXIV, RX-MM-I).
Coroner
Lysek stated that the deceased’s body was removed and that his office personnel
cleaned up blood beneath the deceased’s head before the OSHA COs arrived at
CT-6. He also testified that the
deceased’s cell phone located near the decedent’s head and hard hat may have
removed before the COs arrived at the accident scene. He further testified that a small silver
colored ignition fixture was found in the decedent’s coat or shirt pocket,[75] as
well as papers in his pocket of work that was done or checked off. Coroner Lysek rendered his initial
investigative findings and completed the deceased’s death certificate on
December 23, 2010. He reported the cause
of death as “Blunt Force Head Trauma” and the manner of death as an
“Accident.” His initial investigative
findings did not include rendering an assessment as to the origin of where the
deceased fell from because of a lack of evidence.[76] Coroner Lysek testified that he could not tell
if the decedent fell while on the ladder leading to the 17-foot platform (at
“B”, RX-MM-I) or the ladder leading to the lower level platform (at “D”,
RX-MM-I). He further testified that the
decedent’s body was about four feet north of the 17-foot platform opening and
since he fell straight down and his body did not move he fell from above where
he was and not through the opening in the 17-foot platform. He testified that “it’s unlikely that he
could have fell through the opening.” He
also testified that the Decedent “very likely” fell from the ladder identified
as “D” leading to the lower platform at “E”, RX-MM-I.[77] (Tr. 1637-39, 1648-49, 1664-65, 1668-70, 1681,
1684-85, 1722-33; JX-XVI at CALPINE000074, RX-L, RX-MM-I).
Detective
Iatorola took many photographs while at the accident site on December 22, 2010
at about 7:00 a.m. Several of these
photographs have been sealed by Court order due to their graphic nature. Photograph JX-XVI, at p. Calpine000083, shows
the platform opening that was nearest the caged ladder that led to the 17-foot
platform, as well as the caged ladder and a piece of dangling tape, at the
north side of the west combustion chamber of CT-6.[78] (Tr.
1636; JX-XVI).
OSHA
COs Tricia Weisenberger and Nicholas (“Nate”) Burgei arrived at the BEC
facility at about 9:30 a.m. on December 22.[79] Before arriving at the accident site, it was
CO Weisenberger’s understanding that an employee had fallen through an
opening. They spent from about an hour
and a half to two hours at the BEC facility.
CO Weisenberger testified that it was fairly dark when they entered
CT-6.[80] Mr. Killgore escorted the COs to CT-6, where
the coroner and Mr. Narkin were at that time.[81] The coroner showed the COs the location of
the body because, by the time they arrived, it had been moved and the blood was
washed away.[82] CO Weisenberger made no detailed notes of what
the coroner told her.[83] CO Burgei did not make any handwritten notes
or sketches during, of after, the inspection. He sent CO Weisenberger an email on December
22, 2010, at 12:59 p.m., that stated that, from what he could remember, a
worker fell from about 17-feet through an open hole in the catwalk.[84] He also stated in the email that “Yellow
caution tape was tied to the guard railing around all four open holes, but the
tape had been cut or ripped. It was
still tied to the railing, but dangling.”[85] CO Burgei testified that he did not know of
any facts that supported the assertion that the deceased was ever up on the
catwalk, or that he fell.[86] AD Kulp testified that CO Burgei’s assertion
in the email that Siemens had replaced the catwalk and installed grates during
the December 21, 2010 night shift was “found not to be true.” She agreed that Siemens had replaced the
catwalk during the December 21, 2010 day shift.
(Tr. 128-32, 157-59, 162, 223, 284-86, 309, 326, 421, 434-35, 775, 829-32,
860, 895, 905-09, 1167-69, 1637, 1704; GX-7, RX-D).
CO
Weisenberger could see that the catwalk platform surrounding the combustion
chambers had missing floor grates.[87] CO Burgei took 19 photographs during the
inspection.[88] Photograph GX-1-8 taken by CO Burgei shows the floor
opening to the left of the gate on the upper platform. It also shows a tarp that reached nearly down
to the walkway at the west combustion chamber in the area of the platform
opening.[89] Photographs GX-1-11 and GX-1-12 also show the
floor opening at the upper platform to the left of the gate. Photograph GX-1, at p. 1 (first exhibit
photograph), showed yellow caution tape hanging down near, but not going across,
one of the 17-foot platform openings on the south side of the west combustion
chamber.[90] CO Burgei, along with Calpine’s Environmental
Health and Safety person, Al Fisher (also referred to as Fischer), used the
taller access ladder to climb to the 17-foot platform surrounding the
combustion chambers.[91] He testified that neither he nor CO
Weisenberger measured the platform height, the opening in the platform, the
ladder, the distance from the swing gate’s right post to the opening, or the
deceased’s distance from the area below the opening.[92] CO Burgei did not project a perimeter of the upper
platform opening straight down to the floor to see what was directly beneath
the opening on the north side of the west combustion chamber. He did not look for or find any physical
evidence to show that the decedent could have fallen through the platform
opening. CO Weisenberger did not
check the ladders for signs of blood, body tissue, clothing material, fiber, or
scuff marks.[93] (Tr. 132, 152, 160-63, 283-84, 301, 777-83,
813, 849-51, 857, 876-77, 915-18, 1149; GX-1, at pp. 1-19, RX-M).
CO
Weisenberger identified two combustion chamber areas [BK-1 and BK-2, also
sometimes referred to as the east (BK-1) and west (BK-2) combustion chambers]
in CT-6 that were covered by tarps on December 22, 2010. The OSHA-1B Worksheet indicated that the
tarps did not cover the catwalk area or the ladder leading to it. OSHA contends that the deceased was exposed
to an opening in the elevated walkway surrounding a Unit 6 combustion
chamber. CO Weisenberger testified that
she believed that the deceased died from a fall, but OSHA is not sure if he
fell through the platform opening.[94] CO Weisenberger testified that the standard
at issue called for either a guardrail or someone to constantly attend to the
17-foot platform opening. (Tr. 155-56,
241, 277-78, 299-300, 304, 317, 396-99, 1012, 1151, 1409; JX-III, at p. 2,
GX-1-8, GX-17B, RX-E, RX-RR).
The
COs left CT-6 and continued their discussions with Mr. Narkin in the control
room. CO Weisenberger testified that Mr.
Narkin told her a surveillance video showed the decedent walking in the
direction of CT-6 from the maintenance shop at 3:32 a.m. that morning. She
believes that he also told her that OMT John Horvath found the deceased
sometime after 5:15 a.m. (Tr. 164, 335-36,
381-82, 483-84, 495, 1669; JX-XIV, at p. 10, RX-L, at pp. 1-2).
During
interviews of Siemens’ employees conducted by CO Weisenberger in early 2011,
she was told that Siemens’ employees were working on the lower area of the
combustion chamber, not on the 17-foot platform, during the December 21-22,
2010 night shift. On about January 11,
2011, Mr. Gautille told CO Weisenberger that Siemens’ employees had removed
forty percent of the catwalk and forty percent of the walk around platform so
that they could use a crane.[95] He told her that Siemens personnel left CT-6
at 3:30 a.m., December 22, 2010, and that they had been working on the “bottom
part of [the] combustor – not on [the] platform.” He also told her that Siemens’ December 22,
2010 day shift was to replace the missing portions of the 17-foot catwalk
comprising two openings at each combustion chamber. (Tr. 343, 375, 412; JX-II, at p. 3, JX-XV, at
pp. 4, 6-7).
Mr.
Killgore also took several photographs of the combustion chambers and the upper
platforms that surrounded the combustion chambers in CT-6 after the coroner
departed and while the OSHA compliance officers were on site on December 22,
2010. (Tr. 1405; JX-XXXIII). Photograph JX-XXXIII, at p. 3, shows the upper
platform opening that was nearest the caged ladder that led to the 17-foot
platform, as well as the caged ladder and a piece of dangling tape, at the
north side of the west combustion chamber of CT-6.[96] Photograph JX-XXXIII, at p. 9, shows
yellowing cautionary tape hanging down where there is an upper platform opening
and a piece of green tarp over the combustion chamber. The photograph at JX-XXXIII-A shows a piece
of grating leaning up against an outside railing and the photograph at
JX-XXXIII-B shows the upper catwalk leading from the west combustion chamber to
the east combustion chamber, and yellow cautionary tape and a piece of green
tarp near an upper platform opening at the south side of the east combustion
chamber.[97] Other photographs at JX-XXXIII, at pp. 7-9,
12-13, taken by Mr. Killgore show yellow caution tape tied to fixtures at
various places on the 17-foot platform. Mr.
Killgore testified that he said to the OSHA compliance officers that they were
not wearing any fall protection. He then
went up first to the west combustion chamber’s 17-foot platform and put a piece
of grating down at the opening to the left of the top of the ladder.[98] He further testified that the opening was
visible from the ground level. (Tr. 1405-17;
JX-XXXIII, GX-1, at p. 13).
AD
Kulp testified that she made the final decision to issue the citation to
Calpine.[99] (Tr. 1049-50, 1128-34; JX-1). She stated that the basis for the citation
was the assignment “to go into an area that involved being exposed to a
temporary floor opening. That that potential existed without the employee receiving any type of
special instructions, being provided any type of fall protection and training
specific to the work environment.” (Tr.
1314). AD Kulp agreed that OSHA had no
evidence that the decedent was on the upper catwalk platform on December 22 and
that the evidence was inconclusive as to where he was when he fell.[100] (Tr. 1170-72, 1293). AD
Kulp conceded that she received information during the course of the
investigation that it was a “possibility” the decedent may have entered CT-6 to
merely assess the work area.[101] She testified that the coroner told her in
March, 2012, that the deceased’s injuries could have been consistent with
falling from any location within CT-6’s work area. (Tr. 1111-13, 1294).
Coroner
Lysek testified that the reference in the coroner’s report that the body was
beneath the upper catwalk platform could be misunderstood.[102] He clarified that it referred to his
observation that the upper catwalk was generally above the body; it did not
mean the body was directly below the area of missing grates in the upper
catwalk platform. He stated that the
body was about four feet away from the area directly below the upper platform
opening.[103] (Tr. 1732-33).
Coroner
Lysek returned to the BEC facility with Dr. Edward Chmara in February 2012 to
walk through the area of the accident to see if he could determine where the
decedent was when he fell. (Tr. 1118, 1695-97). Coroner Lysek, after both his initial and
follow-up visits to CT-6, concluded that:
[T]he evidence that is there: where the blood impact
spatters were, where the body was and the position of it is, I can say he did
not move. It's not as if he fell, was in
pain and rolled or anything of that nature.
Where he hit the ground he stayed, he did not move. And – it’s – to me logical he couldn't have
fell from the turbine because of the distance away. He would have had to somehow swung or moved
his body a distance north to get in the position he was. It’s not a direct fall down and if fitting
through that hole he would have had to have had also some other evidence,
whether it would have been on the metal surrounding that, or the bottom . . . I
don't specifically know where he fell from, but I could say with – he
reasonably he could not have fell from one area because of where his body was,
that I think it would have had to have come from [another] area.[104]
(Tr.
1705-1706). Coroner Lysek testified that
it was “very likely” that the decedent actually fell from the access ladder
that went up to the shorter platform [also referred to sometimes as the “Turbine”
deck].[105] He
also testified that “I also think that the area precludes a high elevation
fall, and I didn’t feel that he could have gotten very high, he would have had
to have fallen from a distance of approximately seven (7) feet or less, just
based on the limitations of the area.”
Coroner Lysek further testified that the injuries to the decedent “could
be consistent with him falling from a standing position and striking something,
or from a lower level.” (Tr. 1682, 1707,
1730-31).
Dr.
Chmara was the forensic pathologist who performed the autopsy on the decedent
on December 23, 2010.[106] One of his tasks includes determining the
cause of a death.[107] He testified that at the time of the autopsy,
it had been conveyed to him that the decedent “might have fallen through a part
of a catwalk.”[108] He determined that the death was accidental
and from multiple blunt force injuries.[109] He testified that the broad area of the
decedent’s abrasion at the top of his head was “absolutely classic for a head
impacting a large flat surface, i.e.
a concrete floor.” Dr. Chmara further
testified that the decedent “fell virtually straight downward and that’s why
this is right at the top of his head.” He
elaborated that as the decedent’s head hit the ground, his legs spilled over as
if trying to do a somersault forward, but your head stops everything and your
legs continue to go. He clarified that
he had not visited the scene of the accident when he wrote the initial autopsy
report. The coroner’s office received
the autopsy report in July, 2011. (Tr. 1670,
1680, 1719, 1738-46, 1750-54, 1770; RX-L).
Dr.
Chmara’s first visit to BEC’s facility was in in February 2012 when he and
Coroner Lysek walked through CT-6 at the request of Calpine’s attorneys.[110] Prior to this visit, Dr. Chmara and Coroner
Lysek reviewed simulations of possible accidental fall scenarios that had been
prepared by Calpine’s expert C. Brian Tanner. They spent about an hour and a half at the
accident scene. After the visit, Dr.
Chmara reviewed the photographs taken the day of the accident and the autopsy
photographs. After visiting the scene,
Dr. Chmara testified that “it didn’t make sense that the body would fall
through those catwalks and land where it was positioned” as shown in the
photographs. He further testified that
he “couldn’t make sense of how the body would get five to six feet over further
if the body fell straight through from there [17-foot catwalk opening where
grate missing identified at “A”, RX-MM-J] and hit nothing on the way.” Dr. Chmara testified that he “did not think
it was possible in any way, shape or form that that [decedent’s] body, …, fell
through the opening in the catwalk and then – an unobstructed fall to the
ground below from what was a height of 17 feet to the bottom of the
platform. It just – it didn’t happen
that way.” [111] Dr.
Chmara testified that, instead, he concluded that the deceased:
[w]as climbing up the ladder going to the 17-foot walk, I
mean this is my medical opinion to a high degree of medical certainty, for the
record. He was climbing up the ladder, the backside of
the ladder, and tried to step over to the platform on the other side. The only way that he could be in the
compromised position, in my opinion, to have the legs literally straddling that
– the uprights of that other ladder, is that he somehow at some point was
holding the ladder, climbing up the backside, tried to step over to the other
platform by putting his left leg across in front of his right and at some point
lost his balance, lost his grip, and at that point fell straight down. (Tr. 1771).
Dr. Chmara testified that he
discussed amending the autopsy report with Coroner Lysek, but since he was no
longer with Forensic Pathology Associates, he did not have the opportunity to
amend any report that came from there.[112] In late March, 2012, Coroner Lysek met with
AD Kulp in his office for between one to two hours during which he reviewed about
two hundred photographs of the accident
scene on a large screen display. The
focus was on photographs of where the body was with respect to the ladders,
catwalks, including the two lower catwalks.
Coroner Lysek testified that during this meeting he explained that his
initial report did not identify where the decedent fell from and that the
wording “fell from catwalk” did not mean fell from the 17-foot higher catwalk,
the low catwalk, or the beams. He made
it clear, that he did not “think that the [decedent] fell from the upper 17-foot
catwalk” because of the body’s location, blood impact spatters, and the body’s
distance from the turbine; as well as the lack of material evidence showing he
fell through the catwalk opening.
Instead, he explained to AD Kulp that the decedent fell in the area
between “B” [tall 17-foot access ladder at RX-MM-I] and “D” [ladder leading to
lower level platform at RX-MM-I]. (Tr.
1689-91, 1696-1707, 1753, 1756, 1760-66, 1770-74; RX-MM-I, RX-MM-J).
Safety Program
CO
Weisenberger testified that she conducted an audit of Calpine’s safety programs
and she did not recall finding any deficiencies in Calpine’s fall protection
program.[113] (Tr. 367, 372, 389, 392-404, 416-18, 1254 ; JX-II,
at p. 5, RX-J, at pp. 4-5, RX-Q, RX-PP).
Calpine’s Contractor/Visitor Safety Orientation policy called for BEC
on-site contractors, such as Siemens, to “provide and keep in good repair,
fences, temporary sidewalks, guard rails, barricades, warning lights, signs and
other safeguards necessary to protect all personnel and the public from
injury.”[114] AD Kulp agreed the CO’s file notes indicate that
Calpine “has an extensive safety and health program and training on hazards.” (Tr. 395-96, 399-400, 1307-08; RX-Q, at p. 4, JX-II).
In
her OSHA-1B Worksheet for Siemens, CO Weisenberger stated:
Siemens employees did not implement the directed
administrative control of placing warning signage and tape across the ladder
access points. This control measure
would have provided definitive, easily identifable (sic) warning to all
employees accessing the upper catwalk.
This would have indicated the need to use conventional fall protection
when working near the unguarded edges. A
combination of signage and warning tape, as described in SPM-39 instruction
under sections 5.2 and 5.3 would have been a sufficient warning for Calpine
employees.
(Tr. 405-06; R-J, at pp. 2, 4).
Mr.
Narkin testified that his staff, including the deceased, was required to
complete formal safety training modules every month.[115] They were also required to do a pre-job
safety checklist before each job commonly done in the plant. Mr. Narkin testified that employees were
trained to first assess jobs for safety and that he put a system in place to
ensure all jobs were done safely. He
also acknowledged that Respondent’s Fall Protection policy called for
supervisors to “[p]erform a fall hazard assessment for each job and determine
the proper equipment and procedure for that specific task.” He described Calpine’s safety program as
“extremely good” with a very strong safety culture. (Tr. 998, 1442, 1449-53, 1474, 1500; RX-PP).
Mr.
Miller testified that Calpine had monthly safety training and a monthly safety
committee meeting, and that each employee received a copy of an employee safety
policy handbook. Mr. Miller stated
specifically that BEC’s safety policy would require an employee working near a
floor opening to wear fall protection or barricade the opening.[116] (Tr. 1533-35, 1541-42, 1565).
Mr.
Miller also testified that, as BEC’s plant manager, he reviewed the monthly
safety training records to determine which hourly employees qualified for the bonus
training incentive payments. He
estimated that the required training for an employee adds up to about 60 to 80
hours annually. In addition, there was a
peer-to-peer safety evaluation program in which an employee observed a
co-worker and noted safety compliance issues on the evaluation form. The purpose of this evaluation was to promote
a general sense of responsibility for safety among the employees. An employee was required to complete at least
one observation each month to qualify for the monthly bonus. Further,
Calpine retained an outside safety consultant, TekSolv, to conduct safety
audits and training at BEC in about July 2010.
(Tr. 1533-35, 1548-51, 1555-6; RX-EE, RX-LL).
Mr. Lewis testified that every year he was
employed at BEC, every employee at the plant was trained annually on safety policies
and procedures for an estimated annual total of 40 hours. The training topics included ladder safety,
fall protection, walking-working surfaces, hazard identification, personal protection,
barricading, and incident protection training.[117] Mr. Lewis noted that every employee received
a copy of the employee safety handbook. He
testified that as a LMO, he considered himself a supervisor of his crew,
responsible for enforcing all of Calpine’s safety policies and procedures. He also noted that employees who had the risk
of falling four feet or more were trained on fall protection procedures.[118] Mr. Lewis stated that Calpine employees’ bonus
compensation was tied to their adherence to the safety requirements, safety
programs and safety training.[119] (Tr. 603-25, 1525-26; RX-JJ, RX-PP).
Mr.
Narkin testified that “every employee knows that they're empowered to either
stop or not start a job, when they discovery a safety issue, and that happens
frequently.” He testified Calpine employees
regularly complete a job safety audit (“JSA”) or job safety briefing (“JSB”)
checklist before starting a job identified on a night order and the job is
“scrubbed” if the employee sees “something that he can’t do.”[120] He said that employees were disciplined with coaching
sessions, written reprimands, and, eventually, termination when they did not
comply with safety policies. (Tr. 999, 1443,
1459-62, 1490-91, 1518; JX-XIII).
Mr.
Narkin further testified that he prepared a pre-outage list of approximately 16
safety items, which were descriptions of situations that had caused problems at
power plants during outages. He stated
that he went over this pre-outage list before the overhaul project began and that
he emailed it to his employees twice before the overhaul started. He also stated that one of the items on the
pre-outage list was that fall protection was required at heights greater than
four feet. (Tr. 990, 1451-52. 1480-82,
1509; GX-11).
The Decedent
Messrs.
Lewis, Lutz, and Varga began working at BEC the same year as the decedent –
2002. (Tr. 441, 483, 567, 601, 706). Mr. Lutz testified that it was the
decedent’s habit to always wear his gloves while climbing a ladder, and that he
did not usually wear them while performing a task. (Tr. 508).
CO Weisenberger was told during her employee interviews that the
decedent's routine was to wear his gloves while climbing the ladder. He would remove his gloves after closing the
gate behind him and then “do what he had to do.” (Tr. 341, 383, 386, 388, 508-10; JX-IV, at p.
3).
Mr.
Varga testified that the decedent had a “great attitude about safety” and
always wore his personal protective equipment; he was not aware of him working
unsafely. (Tr. 706-07). Messrs. Lewis and Lutz also testified that the
decedent was very safety-conscious. (Tr.
483, 510, 601-02, 671).[121] Mr. Lewis further testified that he did not
believe the decedent would knowingly expose himself to danger by climbing up to
the combustion chamber when there was an opening in the platform. (Tr. 670-71).
Mr.
Miller testified that the decedent’s 2003 performance evaluation included a
rating of “exceeds expectations” for safety.
He further testified that his observations of the decedent’s performance
were consistent with that evaluation. Mr.
Miller explained that the decedent “tried his hardest to complete the tasks he
was given. He wanted to make sure he
followed all the policies and procedures when doing so. Very conscientious, a very good work ethic,
which lines up with the ratings on this particular performance evaluation.” He testified that the deceased appeared “a
little more distracted” and “a little flustered” at about 6:30 p.m., December
21, 2010, at a time when some fire alarms were “going off.”[122] (Tr. 1539-41, 1563-64, 1677-78; RX-S).
Cited Standard
The
Secretary cited Calpine for violating 29 C.F.R. § 1910.23(a)(7)[123],
which states that:
(7) Every
temporary floor opening shall have standard railings, or shall be constantly
attended by someone.
Secretary’s Burden of Proof
To
establish a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that: (1)
the cited standard applies; (2) the terms of the standard were violated; (3) the
employer knew, or with the exercise of reasonable diligence could have known,
of the violative condition; and (4) one or more employees had access to the
cited condition. Astra Pharm. Prods.,
9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681
F.2d 69 (1st Cir. 1982).
Discussion
Whether
Calpine was prejudiced by OSHA’s Inspection
Calpine asserts that it was
“severely prejudiced” because OSHA did not follow its own procedures for an
inspection. In particular, Calpine
states that because the COs did not take measurements at the accident scene or
interview the first responders the investigation was inadequate.[124] (R. Br. 81-82). This argument fails for two reasons. First, Calpine has not provided information
to show how it was prejudiced. Most
importantly, Commission precedent has long held that OSHA’s internal guidance
documents do not provide rights or defenses to an employer. Mautz
& Oren, Inc., 16 BNA OSCH 1006, 1009-10 (No. 89-1366, 1993) (finding
primary purpose of OSHA Field Operations Manual “is not to give employers
particular rights or defenses in adjudicatory proceedings.”). Although the Court agrees with Calpine that OSHA’s pre-citation
accident investigation was not thorough in all respects, the Court finds there is no evidence of
prejudice to Calpine from OSHA’s investigation.
Whether
the Secretary Has Established the Alleged Violation
Based
on the record, the Court finds the cited standard applies. The evidence shows there was an opening in
the 17-foot, 1 and 31/32 inches platform to the left of the caged ladder measuring
about 32 inches on both its right and left side and 12 inches or more at its
smallest dimension. The Court finds that
the opening for which Calpine was cited meets the applicable definition of a
“floor opening.”[125] (S. Br. 13-14; Tr. 575, 776, 778-79, 1615;
1717; JX-XVI, at Calpine000083, at “A”, JX-XXXIII, at p. 3, GX-1, at pp. 8, 11,
12). The evidence also establishes that
the upper platform opening was temporary in nature. (Tr. 18-19; 1013-14).
Calpine
asserts the standard does not apply because it had no control over CT-6’s upper
catwalk platform during the outage; instead, its contractor, Siemens, had
exclusive control. Therefore, Calpine
asserts that Calpine was not responsible for the upper platform’s condition. (R. Br. 65-66). When an employer neither creates nor controls
the hazardous condition at a multi-employer worksite, it may defend against a
citation by showing that it protected its employees by taking reasonable
alternative measures or that it could not reasonably have known of the
hazardous condition.[126] Capform,
Inc., 16 BNA OSHC 2040, 2041-42 (No. 91-1613, 1994) (citations
omitted). The Commission has held that
the employer’s conduct is viewed in its totality and “whether a reasonable
employer would have done more.” Id. at 2041-42.
Calpine’s
multi-employer worksite defense and argument fails, as the Court finds that it
did continue to have sufficient control in CT-6.[127] Calpine owned the CT-6 building. Calpine, through TMG, had staff present in
CT-6 dedicated to the oversight of Siemens’ work. Calpine’s employees still accessed the
building during the Siemens’ overhaul. Mr.
Narkin acknowledged that employees had to often go to elevated platforms to
perform maintenance during overhaul outages.
BEC employees had to perform certain tasks that Siemens was prohibited
from doing. Calpine also performed
safety audits of Siemens’ work in the CT-6 building. The Court finds that Calpine had sufficient control
of its own CT-6 facility to the extent that the standard applies. (Tr. 643-44, 1022-23, 1807-08; GX-11).
Under
the Act, an employer has a duty to protect its own employees from workplace
hazards. See 29 U.S.C. § 654(a); Baker
Tank Co., 17 BNA OSHC 1177, 1180 (No. 90-1786, 1990) (Respondent had legal
responsibility for the safety of its own employees). That duty may not be contracted away to third
parties. See Bianchi Trison Corp. v.
Chao, 409 F.3d 196, 209 & n.21 (3d Cir. 2005); Summit Contractors, Inc., 23 BNA OSHC 1196, 1207 (No. 05-0839,
2010) (finding employer may not contract out of its duties under the Act), Baker Tank Co., 17 BNA OSHC at 1180 (finding
Respondent could not contract away its legal duties to its employees or its
ultimate responsibility under the Act by requiring another party to perform
them). When an employer denies liability
on the ground that it lacked control over hazardous conditions to which its own
employees were exposed, it must show, first, that it had no ability or
authority to abate the hazard as required under the cited standard; and second,
that it took reasonable alternative steps to protect its employees from the
hazard. See Rockwell Int’l Corp., 17 BNA OSHC 1801, 1808 & n.11 (No.
93-45, 1996) (consolidated) (establishing the multi-employer worksite defense,
an employer must prove three elements, including it did not control the
violative condition, so that it could not itself have performed the action
necessary to abate the condition, and it took all reasonable alternative
measures to protect its employees from the violative condition). The employer bears the burden of establishing
this multi-employer worksite defense. See Grossman Steel & Alum. Corp., 4
BNA OSHC 1185, 1190 (No. 12775, 1976).
Calpine
has not met its burden of establishing this multi-employer worksite defense in
this case. There is no evidence that
Calpine lacked the authority or ability to prevent its employees from accessing
the southern portion of CT-6, or to assign someone to constantly attend to the 17-foot
high platform when it contained unguarded openings, during those periods of
time when Siemens’ work crews were absent from the worksite, or otherwise. As the owner of the CT-6 building, Calpine
could have taken whatever steps it deemed necessary to protect its employees
when they entered CT-6 to potentially perform work there. See Cent.
of Ga. R.R. Co. v. OSHRC, 576 F.2d 620, 624 (5th Cir. 1978) (“If an
employer does contract with a third party to maintain safe conditions, it is to
be presumed that the employer can enforce the contract.”). Calpine had the authority and responsibility
to insist that Siemens comply with the requirements of § 1910.23(a)(7) during
those periods when Calpine employees would be performing tasks in the CT-6
building. Calpine had the ability to
abate the hazard. There is also no evidence
to show that Calpine implemented any reasonable alternative abatement measures. Calpine neither asked Siemens to abate the
hazard, nor attempted to abate the hazardous condition itself. Calpine could have elected to wait until
Siemens had totally completed its [Siemens] overhaul-related work in CT-6
before assigning any task, potential or otherwise, to any of Calpine’s employees.[128] Calpine could have prevented its employees
from accessing the southern portion of CT-6 during those periods of time when
Siemens’ work crews were absent from the worksite. The Court finds that Calpine does not qualify
for the exception set out in Capform;
therefore, the standard applies.
The Court further finds the
requirements of the standard were violated.
The standard specifies that a temporary floor opening must be either constantly
attended by someone or have “standard railings.” Both parties agree there was an opening in
the floor of the upper catwalk platform.
And, there is no dispute that there was no one was attending the floor opening
and that there was no railing around the opening at the time of the
accident.
Calpine argues, however, that it did
not know of the hazardous condition and that there was no actual or potential employee
exposure. The Secretary must prove the
employer either knew, or with the exercise of reasonable diligence could have
known, of the violative condition. Dun-Par Engineered Form Co., 12 BNA OSHC
1962, 1965 (No. 82-928, 1986). The
employer’s knowledge is directed to the physical conditions that constitute a
violation. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148,
1995), aff’d without published opinion,
79 F.3d 1146 (5th Cir. 1996).
The
Secretary asserts that Calpine had constructive and actual knowledge of the
violative condition. She states that
Calpine could have known if it had made a reasonable, diligent effort to find
the hazard since the openings were readily apparent. She further states that Calpine had actual knowledge
through its LMOs -- Mr. Lewis and the decedent.
(S. Br. 20-21). The Court finds
the Secretary has met her burden for this element for the reasons that follow.
As the Commission stated in Automatic Sprinkler
Corp. of Am., 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980), an employer “must
make a reasonable effort to anticipate the particular hazards to which its
employees may be exposed in the course of their scheduled work.” Further, the Commission has stated that “the
conspicuous location, the readily observable nature of the violative condition,
and the presence of [the employer’s] crews in the area warrant a finding of
constructive knowledge.” KS Energy Servs.,
Inc., 22 BNA OSHC 1261, 1265 (No. 06-1416, 2008) petition denied,
703 F.3d 367 (7th Cir. 2012) (citations omitted).
The
actual or constructive knowledge of an employer’s supervisory personnel can be
imputed to an employer, unless the employer establishes substantial grounds for
not doing so. Ormet Corp., 14 BNA OSHC 2134, 2137 (No. 85-531, 1991), citing Donovan v. Capital City Excavating Co.,
712 F.2d 1008, 1010 (6th Cir. 1983). The
criteria to determine who can be considered supervisory personnel is set out in
the Commission’s decision in Tampa
Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated) (citations
omitted).
An employee who has been delegated authority over other
employees, even if temporarily, is considered to be a supervisor for the
purposes of imputing knowledge to an employer.
The knowledge of crew leaders and
foremen has been imputed in prior Commission decisions. Id.;
Kerns Bros. Tree Serv., 18 BNA OSHC
2064, 2069 (No. 96-1719, 2000); Jersey Steel Erectors,
16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), aff’d,
19 F.3d 643 (3rd Cir. 1994) (“[t]he actual or constructive knowledge of an
employer’s foreman or supervisor can be imputed to the employer.”).
The
Court finds an LMO is a supervisor for the purpose of imputing knowledge. The evidence shows that an LMO operated in
much the same way as a foreman. The
LMO’s duties include delegating tasks to the team and ensuring that safety training
was completed. Further, Mr. Lutz testified
that when the facility transitioned to Calpine ownership, shift supervisors
were eliminated and replaced with LMOs.
Mr.
Lewis testified that he knew of the platform openings approximately 24 hours
before the accident. He chose not to
complete the task on the night order because of the missing catwalk platform grates. Further, Mr. Lewis testified that he notified
both Messrs. Narkin and Lutz of the
catwalk’s condition. As the night shift
LMO, his knowledge is imputed to Calpine.[129] Mr.
Killgore testified that he worked the December 21, 2010 day shift and described
the activities accomplished by Siemens during that shift.[130] Also, Mr. Rice had seen Siemens’ Shift
Turner Report for December 21, 2010, at 5:00 p.m., December 21, 2010, many
hours before the accident and Mr. Killgore had firsthand knowledge of the
platform openings by 5:00 p.m., December 21, 2010. The
Court finds that the knowledge of the unguarded upper platform floor openings
of Messrs. Narkin, Lewis, Lutz, Killgore and Rice as of December 21, 2010 and
carried forward through to the early morning hours of December 22, 2010 is
imputed to Calpine.[131]
The
Court also finds that Calpine had constructive knowledge of the hazardous condition. Multiple witnesses testified that the
openings in the upper platform present from December 20 through the time of the
accident were clearly visible after entering CT-6. Mr. Narkin was aware that Siemens’ work in
the CT-6 was in progress. TMG
representatives were present in CT-6 with Siemens’ staff and attended daily
status meetings. Mr. Narkin could have
personally gone to CT-6 on December 21, 2010, or requested a status of the catwalk
platform’s condition through a TMG representative. Because the condition was easily seen and TMG
staff was in the vicinity, the Secretary has shown that Calpine could have
known of the condition with the exercise of reasonable diligence. See Revoli Constr. Co., 19 BNA OSHC 1682,
1684 (No. 00-0315, 2001) (“The test for knowledge is whether an employer knew,
or with the exercise of reasonable diligence could have known, of the violative
condition.” ); see also Sec’y of Labor v.
ConocoPhillips Bayway Refinery, 654 F.3d 472, 479-80 (3rd Cir. 2011). A hazardous condition that is “readily
apparent” due to its location in a conspicuous area will support a finding of
constructive knowledge, especially where employees are present in the area
where the hazard is located. See KS Energy Servs., Inc., 22 BNA OSHC at
1267-68; Kokosing Constr. Co., 17 BNA
OSHC 1869, 1871 (No. 92-2596, 1996).
Finally,
the Secretary must show that an employee was either actually exposed to the zone
of danger or that exposure was reasonably predictable. Consol.
Grain & Barge Co., 23 BNA OSHC 2055, 2065 (No. 10-0756, 2011)
(citations omitted). Had the Secretary
presented sufficient evidence to prove that the decedent had fallen through the
upper platform opening, then actual exposure would have been shown. There is insufficient evidence to show that
the decedent fell through the upper platform opening on the north side of the
west combustion chamber. The Court finds
that the decedent did not fall through the opening at that location. Instead, fully crediting the testimony of the
coroner and forensic pathologist, the Court finds that the decedent fell from
the area between the ladder leading to the lower platform that was between five
to seven feet in height at “D”, RX-MM-I, and the lower, un-caged portion of the
ladder at “E”, RX-MM-I, comprising not more than seven steps that led to the 17-foot
platform. The Secretary has not shown
the decedent was actually exposed to the hazard.[132] To the contrary, AD Kulp admitted that the
evidence was inconclusive regarding where the decedent was when he fell. The Court finds the coroner’s conclusion,
that it was more likely the decedent did not fall from the area of the hazard, is
persuasive. The coroner has extensive experience
in accident investigation. He found no
physical evidence to show the decedent fell through the floor opening. The Court further finds that the forensic
pathologist, Dr. Chmara, also concluded that the decedent did not fall through
the floor opening at the 17-foot platform.[133] The Secretary did not present evidence to
rebut the findings of the coroner or the forensic pathologist. The Secretary has not proven any Calpine
employee exposure to the upper platform floor opening hazard, actual or
otherwise.
The
predictability of exposure can be determined through “evidence that employees
while in the course of assigned work duties, personal comfort activities and normal means of ingress/egress
would have access to the zone of danger.” Phoenix, 17 BNA OSHC at 1079 n.6. Further, “[r]easonable predictability requires
more than a hypothetical possibility of exposure, though less than a
certainty.” Consol. Grain, 23 BNA OSHC
at 2066. There are several factors to
consider in determining what was reasonably predictable in this case. Calpine’s overall safety program, the nature of
the assigned task, the purpose of the night order, employee practices, and the decedent’s
work history are all relevant.
The
Secretary asserts that exposure is predictable based on the task to replace the
spark rod in CT-6. (S. Br. 16). Calpine
asserts that because the task was not listed as a priority and was conditional,
it cannot be used to show that it was likely an employee would be exposed to
the hazard. (R. Br. 26-28). As stated in Respondent’s brief, the test for
determining access to a violative condition includes a requirement that such
access be “reasonably predictable.” Consol. Grain, 23 BNA OSHC at 2065. “This requirement entails a demonstration
that employees will be, are, or have been in a ‘zone of danger.’” Id., citing Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853,
1997). The Commission has held that it
requires more than a hypothetical possibility that an employee could come in
contact with the hazard. The Commission
in Fabricated Metal Products “emphasize[d]
that … the inquiry is not simply into whether exposure is theoretically
possible.” Id. In Consolidated Grain, the Secretary failed to show that it was
reasonably predictable that employees would be in the zone of danger, which the
court found to be in front of a rotating auger where employees could be exposed
to the in-running nip points of the auger.
Pursuant to the company’s policy, employees were required to stay behind
the rotating auger. The court noted that
while it was “not impossible that an employee could come in contact with the
in-running nip points of the auger, however, that is not the standard.” Consol.
Grain, 23 BNA OSHC at 2066. (R. Br.
at pp. 20-21).
The
Court finds that the evidence shows that the task to replace the igniter was a
low priority on the night order and that there was no pressure on the decedent
to complete this particular task during his shift. Further, the record shows that the lighting
conditions in CT-6 the morning of the accident were adequate to see the holes
in the upper platform from the building’s floor; an employee did not need to
climb a ladder to determine there was an opening in the upper catwalk’s
platform. Mr. Narkin’s December 21, 2010
night order had two expressed conditions that had to be met before the task to
replace the igniter was to be accomplished by any Calpine employee, including
the decedent. Additionally, it was
expected by Calpine management, that anyone, including the decedent, who may
decide to tackle the igniter replacement task, would first have to do a safety
assessment of the task, and in so doing, would have to readily see that the two
preconditions were not yet fully met as of the pre-dawn hours of December 22,
2010, and that it would be unsafe to access the upper platform, or its
surrounding zone of danger, due to the floor openings that were there.[134] Tarps were clearly still on top of the
combustion chambers and covered the place where the missing igniter was
located. (SF-14). The Court finds that the tarps on the
combustion chamber were readily visible from the ground level. The facts of this case make it unlikely that
the decedent would have found occasion to pass within ten feet of the floor
opening on the upper platform on December 22, 2010.[135] Here, there is no evidence that any Calpine
employee actually entered the zone of danger, the space within ten feet of the
floor opening at the north side of the west combustion chamber’s upper platform.[136] Nor was it predictable, or reasonably
expected, that any Calpine employee would have access to the floor opening on
the 17-foot upper platform, or the zone of danger, at the time of the accident.[137]
The
Court finds that the decedent never got within ten feet of the floor opening at
the north side of the west combustion chamber’s upper platform and that there
was no actual exposure to the hazard.[138] CO Weisenberger testified that she did not
know the location from which the decedent fell. CO Burgei acknowledged that his preliminary conclusion
that the decedent fell through an opening in the upper platform was not
supported by facts. AD Kulp also agreed
that OSHA had no evidence that the decedent was ever up on the upper platform
on December 22, 2010, and admitted that OSHA had no information proving that
the decedent actually fell from the upper platform. AD Kulp also testified that it was OSHA’s
position that the location from which the decedent fell to his death was
“inconclusive.” (Tr. 277-78, 895-96, 907-09, 1159, 1172). The Court finds that the uncontroverted and
un-rebutted testimony of Coroner Lysek and Forensic Pathologist Dr. Chmara
established that the decedent did not fall through the upper platform’s floor
opening. The Court finds their testimony
to be very creditable. Their
professional experience and credentials regarding their duties to determine a
decedent’s cause of death are impressive, even more so when weighed against
that of the two COs.[139] The Court observed the demeanor of Coroner
Lysek and Dr. Chmara during their courtroom testimony and found them both to be
honest, knowledgeable, impartial, professional, thorough, confident, direct,
and persuasive.
The
Commission has frequently found exposure through access where employees had
occasion to pass within 10 feet of an unguarded opening. See
e.g. A. Munder & Son, Inc. and Robert Catino, Inc., 4 BNA OSHC 1593,
1595 (No. 1858, 1976); Public Improvements,
Inc., 4 BNA OSHC 1864 (No. 1955, 1976).
The Court finds that the access ladder at “D”, RX-MM-I, that led to the
lower platform at “E”, RX-MM-I, was not more than five to seven feet in height
from the floor. The Court further finds
that the top of the un-caged portion of the ladder leading to the 17-foot
platform was not more than seven feet in height. The Court finds that there was more than ten
feet of distance from the point where the decedent fell in the area between the
ladders at “B” and “D”, RX-MM-I, to the floor opening in the upper platform,
which was 17 feet, 1 and 31/32 inches in height.[140] The Court further finds that the unguarded
upper platform opening was beyond the normal employee random movement
contemplated by the access test and that the unguarded floor opening was too
remote to pose a threat to the safety of the decedent on December 22, 2010. See Special Metals Corp., 9 BNA OSHC at
1134.
The
record shows that BEC had a multi-faceted safety program which included
training, audits, and discipline.
Several employees testified that safety training was required for all
employees on a monthly basis. Calpine
provided incentives, through monetary awards, to its employees for complying
with its safety training requirements. A
third party was hired in July of 2010 to conduct a safety audit and provide
additional safety training. Calpine had an
ongoing program in which employees evaluated each other for safety compliance. The testimony of two employees demonstrated
that assessing the safety requirements of a particular work activity was a part
of the work culture at the BEC facility.[141] Respondent’s Fall Protection policy called for supervisors, such as the
deceased, to “[p]erform a fall hazard assessment for each job and determine the
proper equipment and procedure for that specific task.” The Court finds that the evidence shows that
it is more probable than not that the decedent entered CT-6 with an igniter in
his pocket to perform an assessment of the job conditions related to the task
of installing the igniter into the east combustion chamber. [142] Whereas Mr. Lewis carried tools and an igniter
when he performed his safety assessment relating to the identical task the day
before, no tools were found with the decedent when his body was discovered
after the accident.[143] The Court finds that it was readily possible and
reasonably predictable for Calpine employees, including the decedent, to enter
CT-6 and perform a safety and readiness assessment of the igniter replacement
task without being exposed to the opening hazard at the upper platform more
than 17 feet above the floor.
Finally,
the record shows the decedent had a good reputation for safety, and there was no
evidence of his noncompliance in regard to safety. There is also no evidence in the record that
there was a general pattern of lax safety compliance by the BEC employees. No evidence was presented to show that the
decedent would be likely to engage in unsafe behavior.[144] The Court finds that, as a whole, Calpine had
a strong safety program and that the decedent’s general conduct was to follow
safety procedures. Calpine employees were trained to assess
their environments for safety prior to performing any work, to perform tasks
only in safe conditions, to use appropriate personal protective equipment (e.g. fall protection in any condition
such as that which existed at the time of the cited violation) when confronted
with an unsafe condition, or to not perform the assigned task. (Tr. 742, 998, 1800-04; GX-11).
The
information available to Calpine, when considered in its totality, shows that Calpine
would not have reasonably expected the decedent to be on the upper catwalk
platform when the opening was easily seen upon entering CT-6. No witnesses saw the deceased fall.[145] The
Court finds the Secretary has not shown it was reasonably predictable for the
decedent to be in the zone of danger.[146] The Court concludes, therefore, that the
Secretary has not proven either actual or reasonably predictable exposure to
the cited hazard.
The
Secretary cites to two Commission decisions to support her argument that the
task on the night order made it reasonably predictable that the decedent would
be in the zone of danger. Nuprecon LP, 23 BNA OSHC 1817, 1819 (No.
08-1307, 2012) petition denied, Order
at 1, No. 12-71026 (9th Cir. Jan. 17, 2013); Lancaster Enters., Inc., 19 BNA OSHC 1033, 1037 (No. 97-0771,
2000). The facts in both of these cases,
however, are distinguishable from the case at hand. In Lancaster,
employees actually used an access ladder that was “closely adjacent’ to an
unguarded skylight to gain access to their work area. In Nuprecon,
the evidence showed that an employee doing pipe removal work was “closely
adjacent” to an unprotected edge. Both
of these cases rely on evidence of actual exposure to the zone of danger and do
not aptly compare to the case at hand.
The
Secretary relies on two further Commission decisions to support her position
that it was reasonably predictable for the employee to be in the zone of danger. Pete
Miller, Inc., 19 BNA OSHC 1257, 1258 (No. 99-0947, 2000); Fabricated
Metal Prods., Inc., 18 BNA OSHC at 1074. In Fabricated
Metal, the Commission stated that “[I]n order for the Secretary to establish
employee exposure to a hazard she must show that it is reasonably predictable
either by operational necessity or otherwise (including inadvertence), that
employees have been, are, or will be in the zone of danger.”[147] Fabricated
Metal Prods., Inc., 18 BNA OSHC at 1074; see also Nuprecon LP, 23 BNA OSHC at 1817. The zone of danger “is determined by the
hazard presented by the violative condition, and is normally that area
surrounding the violative condition that presents the danger to employees which
the standard is intended to prevent.” RGM Constr. Co., 17 BNA OSHC 1229, 1234
(No. 91-2107, 1995); Seyforth Roofing Co., 16 BNA OSHC 2031, 2033 (No. 90-0086,
1994). The Secretary need only show employee
access to the zone of danger, and need not show that employees were actually
exposed. Donovan
v. Adams Steel Erection, 766 F.2d 804, 812 (3rd Cir. 1985). In addition, “[i]t is well settled that brief
exposures involved in passing or standing near an open edge constitute access.” Walker
Towing Corp., 14 BNA OSHC 2072, 2074 (No. 87-1359, 1991). Neither
Fabricated Metal nor Pete Miller assist the Secretary in her
position in this case. In Pete Miller, the CO observed an employee
handling materials close to the roof’s edge.
Here, there is no evidence that any Calpine employee walked on, passed
near or stood on the upper platform where the opening hazard was, or was within
ten feet of the opening at or before the accident. In Fabricated
Metal, the Commission found that the Secretary had not shown it was
reasonably predictable for an employee to be in the zone of danger, just as the
Court has done here.
The
Court finds that the Secretary has shown that the cited standard applies, that
the terms of the standard were violated, and that Calpine knew or could have
known of the hazardous condition.
However, as the Secretary did not prove the required element of actual
or reasonably predictable employee exposure, the citation is vacated.[148]
Findings of Fact and Conclusions of
Law
All findings of fact and conclusions
of law relevant and necessary to a determination of the contested issues have
been made above. See Fed. R. Civ.
P. 52(a). All proposed findings of fact
and conclusions of law inconsistent with this decision are denied.
ORDER
Based
upon the foregoing findings of fact and conclusions of law, it is ORDERED
that:
Item 1 of
Citation 1, alleging a serious violation of 29 C.F.R. § 1910.23(a)(7), is VACATED.
/s/
The
Honorable Dennis L. Phillips
U.S.
OSHRC Judge
Dated: May 22, 2013
Washington,
D.C.