EDGEWOOD CONSTRUCTION COMPANY
OSHRC Docket No. 1264
Occupational Safety and Health Review Commission
January 17, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter presents the question of whether the general duty clause n1 of the Occupational Safety and Health Act of 1970 ("OSHA") n2 requires abatement of "recognized hazards" in the workplace which are detectable by instrumentation. The Complainant (Labor) also asks that we reverse Judge Ben D. Worcester's decision to vacate a citation for an alleged non-serious violation of section 5(a)(2) of OSHA.
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n1 29 U.S.C. 654(a)(1).
n2 29 U.S.C. 651 et seq.
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The facts are as follows. Edgewood was engaged to construct a sewer. Before starting work it notified utility companies as to the project's location. The Southern Connecticut Gas Company (Connecticut Gas) went to the sewer project area and marked the location of one of its gas distribution mains. The gas main or line ran parallel to the intended sewer line, and the separation distance was about two feet. The gas line was about fifty years old, and the pipe [*2] was corroded.
Edgewood began construction, and the job proceeded for one week, until June 27, 1972, without incidence. On that date, and thereafter on June 28, 30, and July 5, Edgewood's employees detected the odor of natural gas in the sewer project. Connecticut Gas was called on each occasion, and its repair crews discovered and repaired leaks in the gas line. Gas detection equipment was used by Connecticut Gas to locate the leaks. Thereafter and prior to July 11 Connecticut Gas discovered a bad gas leak which it repaired.
Edgewood continued with the project, installed a manhole, and by July 11 it had installed pipe seventy feet beyond the manhole. Each morning on opening the sewer excavation laser equipment was operated inside the installed sewer pipe for alignment purposes. Edgewood's employees had been instructed to wait fifteen minutes after opening the manhole before entering in order to allow for ventilation. They had also been instructed not to smoke and to exercise care in view of the gas problem.
On the morning of the 11th Edgewood's employees opened the manhole and operated the laser. An explosion occurred, and one employee was killed. The odor of [*3] gas had not been detected. Connecticut Gas arrived on the scene and detected high levels of natural gas by using gas detection equipment. Edgewood did not employ such equipment on the project at any time. It is undisputed that the sense of smell is an unreliable means for detecting natural gas.
On these facts Labor charged Edgewood with a serious violation of the general duty clause in that Edgewood failed to test for hazardous concentrations of gas before allowing its employees to enter areas it knew or should have known would be hazardous in the absence of proper ventilation. Labor also alleged a non-serious violation of 29 C.F.R. 1926.21(b)(6) saying that Respondent had failed to instruct its employees with regard to the hazard.
Judge Worcester vacated both citations for failure of proof. As to the general duty allegation, he relied on the statements of a member of Congress for the proposition that recognized hazards are only those that are detectable by the basic human senses. Since the gas was undetectable by smell on July 11, he concluded that Edgewood could not have known of its presence.
Having reviewed the record we reverse as to the general duty allegation and affirm [*4] as to the alleged violation of 29 C.F.R. 1926.21(b)(6).
There can be no question that an obvious hazard existed on the facts. Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir., April 5, 1974). Edgewood conceded as much at the hearing held herein. Moreover, by our decision in American Smelting and Refining Company, As we said there, the term includes non-obvious hazards "that can only be detected by instrumentation." Our interpretation, Chairman Moran dissenting, was expressly adopted when that matter was appealed to the Court of Appeals for the Eighth Circuit (501 F.2d 504, July 15, 1974). As the court said:
[T]o limit the general duty clause to dangers only detectable by the human senses seems to us to be a folly. Our technological age depends on instrumentation to monitor many conditions of industrial operations and the environment. Where hazards are recognized but not detectable by the senses, common sense and prudence demand that instrumentation be utilized. 501 F.2d at 511.
We agree. On the [*5] facts, there can be no doubt that the obvious hazard cited herein was a recognized hazard within the meaning of the general duty clause.
The only question left is whether Labor proved that Edgewood should have known of the existence of the recognized hazard. Clearly, the question must be answered in the affirmative. Edgewood had actual notice of the presence of gas on at least four occasions from June 27 through July 5th. Under the circumstances it was not only likely but highly probable that gas would be encountered after July 5th. And a prudent person would have taken positive action to detect gas. At the very least a prudent person might have increased ventilation as a preventive measure. Edgewood did nothing. It did not test for gas, and it did not change its ventilation methods. Accordingly, we find that it was in serious violation of the general duty clause. Savannah Iron and Fence Corporation, No. 1299, BNA 2 O.S.H.C. 1065, CCH Employ. S. & H. Guide para. 18,233 (Rev. Com'n., 1974).
Labor proposed a penalty of $700. Clearly, the gravity was high. Although the number of employees exposed (1 to 6) was small, death and serious physical harm was the likely result [*6] of the violation. Edgewood is small and has no prior history, However, in the circumstances it is not entitled to credit for good faith. The proposed penalty appears reasonable and will be assessed.
As to the alleged violation of 29 C.F.R. 1926.21(b)(6) we affirm Judge Worcester's determination. Edgewood was charged with having failed to issue instructions, and the facts are to the contrary. On review, Labor appears to concede the issuance for its arguments go to the adequacy of the instructions. The complaint seems to be that because an accident occurred the instructions were inadequate. Aside from the fact that an accident may occur even in the face of the best of instructions, Labor's present argument amounts to a different or new charge from that that was tried. As the Judge determined, Edgewood had instructed its employees, and Labor has not shown otherwise.
Accordingly, the citation for violation of the general duty clause is affirmed; a penalty of $700 is assessed; and, the judge's decision is modified to be consistent herewith and as modified is affirmed. It is so ORDERED.
CONCURBY: CLEARY (In Part); MORAN (In Part)
DISSENTBY: CLEARY (In Part); MORAN (In Part)
DISSENT:
CLEARY, [*7] COMMISSIONER, concurring in part & dissenting in part: While I concur in the disposition of this case insofar as it affirms the citation for violation of the general duty clause, I am unable to agree with the vacating of the citation alleging an other than serious violation of section 5(a)(2) of the Act.
The vacated citation alleged respondent's failure to comply with the standard appearing at 29 CFR § 1926.21(b)(6) [hereinafter 1926.21(b)(6)]. This standard, in pertinent part, provides:
All employees required to enter into confined on enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required.
I disagree with my colleague's conclusion that the Secretary failed to establish respondent's non-compliance with 1926.21(b)(6). As is noted in the lead opinion, respondent failed to provide either gas detection or ventilation equipment at its jobsite. Thus, it is obvious that respondent could not possibly have instructed its employees "in the use of protective and emergency equipment . . ." as 1926.21(b)(6) requires. I submit that the fact that we have found a violation [*8] of the general duty clause n3 for failing to provide testing or ventilating equipment also establishes non-compilance with 1926.21(b)(6) for failure to instruct "in the use of" protective equipment.
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n3 The general duty clause is included in the Act to assure the protection of employees in the event there is no specific standard dealing with a particular recognized hazard. Since there is no standard requiring the use of detection and ventilation equipment in the type of situation that existed in this case, respondent was properly cited under the general duty clause.
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Moreover, my colleague maintains that the Secretary's argument with respect to the adequacy of safety instructions would constitute a different charge from that tried, i.e., whether instructions were issued at all. He would hold that any instructions, however superficial, would be enough to satisfy the requirement of the standard. I cannot agree to such a narrow test.
I would interpret the standard as requiring adequate instructions sufficient [*9] to protect employees from the hazard involved. Clearly, such instructions were not forthcoming from respondent in this case. In addition to the failure to instruct employees in the use of protective and emergency equipment, evidence reveals the absence of safety instructions concerning flame and spark hazards in the sewer excavation. Accordingly, I would affirm the citation alleging a violation of § 1926.21(b)(6).
MORAN, CHAIRMAN, concurring in part and dissenting in part: I agree that the Judge's disposition of the § 654(a)(2) charge n4 was correct and should be affirmed.
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n4 This charge was based upon an alleged failure to comply with the requirements of the occupational safety and health standard codified at 29 C.F.R. § 1926.21(b)(6).
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I do not agree, however, that 29 U.S.C. § 654(a)(1) (the general duty clause) has been violated as alleged.
To hold that the term "recognized hazards" includes non-obvious hazards that can only be detected by instrumentation completely ignores the Congressional intent behind that [*10] clause. This is clearly illustrated in the legislative history of the Occupational Safety and Health Act but it should be noted when considering the same that Congress did not intend that the general duty clause be utilized to any great extent. The main enforcement reliance was to be on occupational safety and health standards with which employers are required to comply by virtue of § 654(a)(2).
The general duty clause took many forms in its development in both the House and the Senate. The version finally adopted by the Senate required workplaces to be free from "recognized hazards," while the House version required that workplaces be free from "any hazards which are readily apparent and are causing or are likely to cause death or serious bodily harm." On December 16, 1970, a conference committee reported a bill which reconciled the two provisions by adopting the House version in all respects except that the words "readily apparent" were replaced with the single word recognized. n5
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n5 House of Representatives Report No. 91-1765, 91st Congress, 2d Session, Conference Report to accompany S. 2193, at page 33.
[*11]
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The law as it appears today is identical to the bill reported by the conference committee on December 16, 1970. The House enacted it on the following day, December 17, 1970. Just prior to the enactment roll call, Congressman Steiger, who had sponsored the earlier House version, urged the adoption of the version agreed upon by the conference committee. He stated as follows:
The conference bill takes the approach of this House to the general duty requirement that an employer maintain a safe and healthful working environment. The conference-reported bill recognizes the need for such a provision where there is no existing specific standard applicable to a given situation. However, this requirement is made realistic by its application only to situations where there are 'recognized hazards' which are likely to cause or are causing serious injury or death. Such hazards are the type that can readily be detected on the basis of the basic human senses. Hazards which require technical or testing devices to detect them are not intended to be within the scope of the general duty requirement. . . . It [*12] is expected that the general duty requirement will be relied upon infrequently and that primary reliance will be placed on specific standards which will be promulgated under the Act. 116 Cong. Rec. 11899 (Daily ed. December 17, 1970). (emphasis supplied)
No Member of the House of Representatives or the Senate, at any time subsequent to the conference committee report took issue with Representative Steiger's view that the general duty clause would not cover hazards requiring technical or testing devices to detect them. n6
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n6 In addition to the various versions of what eventually became the Act's section 5(a)(1), which have been previously noted in this opinion, that clause underwent a number of earlier changes. In its original form it required employers to provide "a place of employment which is safe and healthful." House Report 91-1291, 91st Cong. 2nd Sess. (1970). The second amendment altered the language to require provision of a place of employment free from "readily apparent" hazards. Each of these amendments was preceded by numerous, acrimonious criticisms of what was variously referred to as a vague, unfair, "do-good-and-avoid evil" kind of prohibition failing to give any guidelines to employers concerning proscribed conduct. The trend was to approve amendments on the basis that they limited the scope of the general duty requirement. Such is the clear expression of Representative Steiger. It coincides with the notion that the general duty requirement was intended to be utilized to cover obvious hazards not covered by a specific standard. For a good treatment of the Act's legislative history, see Gross, The Occupational Safety and Health Act: Much Ado About Something, 3 Loyola Chi. L.J. 247 (1972). For an analysis of the general duty requirement, see Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harvard Law Review 988 (1973).
[*13]
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Confining the term recognized hazards to conditions apparent to the five senses is more consistent with the purposes of the Act as well as both the spirit and the plain meaning of section 6 of the Act, 29 U.S.C. § 657, than is the interpretation adopted by the Commission.
Section 2(b) states that the Act's purpose is to provide safe and healthful working conditions. Subsection 2(b)(9) states that this purpose is to be effected
by providing for the development and promulgation of occupational safety and health standards. n7
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n7 See also the comments of Representative Broomfield during the House debate when he stated that: "a general standard like this only discourages the formulation of specific standards, which is after all, the basic purpose of the bill." Cong. Rec. -- House, 91st Cong. 2nd Sess., November 23, 1970.
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Section 6 is by far the longest and most detailed section of the Act. In addition to providing an elaborate [*14] means by which the Secretary of Labor may adopt occupational safety and health standards, it also establishes a method by which an employer may, for reasons specified therein, apply for, and be granted, variances from the requirements of any such standard.
That section also details specific procedural steps to be utilized by an employer, which includes specification of the standard from which a variance is sought. When the Secretary is permitted to use section 5(a)(1) to cite for hazards which are not obvious and cannot be detected by the basic human senses, not only is the clear Congressional intent overridden, but all of the elaborate procedures set forth in section 6 are rendered moot. By so holding the Commission renders the variance procedure unavailing and adopts a ruling which is inconsistent with the overall purpose of the Act itself.
A similar point was also made by Congressman Steiger only minutes before the House adopted this law on December 17, 1970. Mr. Steiger stated at that time:
It is also clear that the general duty requirement should not be used to set ad hoc standards. The bill already provides procedures for establishing temporary emergency standards. [*15] See Committee Print, Legislative History of the Occupational Safety and Health Act of 1970, U.S. Government Printing Office, 1971, at page 1217.
The Commission's decision in this case is a retreat from our ruling in Secretary v. Brisk Waterproofing Co., Inc., 3 OSAHRC 1132 (1973), where we stated that reliance upon the general duty clause
. . . would provide little advance warning of what specifically is required in order that employers could maintain a safe and healthful workplace.
and
. . . would emasculate all the provisions dealing with the promulgation of standards, and . . . give a wider effect to the . . . general duty clause than was ever intended by Congress.
Further evidence of the limited interpretation intended for the general duty requirement is the statement of Howard Pyle, President of the National Safety Council, who testified on December 9, 1969, before the Senate Subcommittee on Labor when that committee was considering legislation which led to the enactment of this statute. Commenting upon the desirability and proposed nature of a general duty requirement, Mr. Pyle stated:
The absence of such a general obligation provision would mean the absence of [*16] authority to cope with a hazardous condition which is obvious and admitted by all concerned for which no standard has been promulgated. [Senate Report 91-1282, page 9] (emphasis added)
During House debate on this legislation, n8 Representative Steiger also stated that one of the bill's primary purposes is to be the provision of a mechanism by which fair standards could be promulgated. Congress did precisely that in adopting section 6 of the Act.
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n8 Conf. Report on S. 2193, Cong. Rec. -- House, December 17, 1970.
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It is thoroughly inconsistent with this clearly stated purpose to interpret section 5(a)(1) in a manner which will permit the Secretary of Labor to effectively institute occupational safety and health standards in an ad hoc fashion. This is especially objectional in a case such as this, where the prohibited conduct concerns a hazard which can be detected only by technical testing devices. To allow the Act to be so used reduces section 6 to a virtual nullity. Indeed, why have any standards [*17] at all if § 5(a)(1) is allowed to serve so broad a purpose.
Finally, it should be noted that this is remedial legislation enacted for the purpose of eliminating workplace hazards. If an employer has no means of detecting a hazard in advance of inspection -- and there is also no safety standard identifying conditions which constitute such a hazard -- the remedial purposes cannot be achieved because the employer would have no way of knowing that the conditions at his workplace were hazardous. It is for this very reason that the general duty clause was confined to conditions which a reasonable man would recognize as hazardous and that the main vehicle to obtain compliance with the law was the identification of hazardous conditions through the promulgation and enforcement of occupational safety and health standards.
[The Judge's decision referred to herein follows]
WORCESTER, JUDGE: This proceeding arises as a result of a notice of contest filed by the Edgewood Construction Company on August 2nd, 1972, pursuant to the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 USC 651 et seq. ) hereinafter called the Act.
The Respondent, [*18] a corporation engaged in the construction business in the State of Connecticut was charged with violations of the standards promulgated by the Secretary as directed by Section 6(a) of the Act. It was alleged that the Respondent had, because of such alleged violations of the standards, committed a violation of Section 5(a)(2) of the Act which makes such conduct an offense. The Complainant was granted until March 16, 1973, to file a brief and proposed findings, but as of April 23, 1973, had not submitted it.
The incident which brought this situation about was a fatal accident which occurred at the site of a storm sewer construction project on Kensington Street, New Haven, Connecticut on July 11, 1972. The Respondent is a Connecticut Corporation with its principal office in Hamden, Connecticut. It is a company which had a volume of business between $1,500,000 and $1,700,000 in the fiscal year ending March 31, 1972. It had an average of 60 employees on a daily basis. There is no record of any previous violation.
On June 20, 1972, the subject storm sewer project was begun. However, before that, as was the Respondent's customary practice, its general superintendent notified [*19] all utility companies in the city that they would begin the excavation on that date. This was to make certain that all utility companies having underground service lines in the area would know about it before the excavation was begun. The Southern Connecticut Gas Company sent a representative out on that day and, by means of a detection device, located its line and marked the surface of the pavement so the contractor would know where the gas line was. The job proceeded without incident for a week. On June 27, 1972, Respondent's employees detected the odor of natural gas, so the gas company was called. After a repair crew came out it was discovered that gas was leaking from corroded pipe. The gas line had been in the ground since sometime in the early 1920's so it was approximately 50 years old. The Respondent called gas company repair crews because of leaks four times between June 27 and July 5. A few days later the Respondent's employees noticed a gas company service crew working ahead of the sewer project apparently repairing another leak. Nothing was said to them by the gas company employees so they had no reason to suspect that there would be more leaking gas.
At approximately [*20] 8:00 a.m. on the morning of July 11, 1972, two of the Respondent's laborers, Frederick C. DiLuzio and Charles H. Schryver, Jr., prepared to start the day's work. By that time the job had progressed to the point where there was a manhole installed and a continuation of the storm sewer pipe approximately 70 feet beyond it. It was revealed by the testimony of Charles H. Schryver, Jr., that their first task when the job started was to align the trench for the day's excavation work. This was done by means of a laser beam. They removed the manhole cover, secured the disassembled laser instrument from a nearby vehicle where it was kept during the night and put it together. DiLuzio then descended into the manhole and Schryver handed the instrument down to him. Almost immediately thereafter a violent explosion occurred. Both DiLuzio and Schryver were severely burned. DiLuzio succumbed to the effects of his injuries on July 24, 1972. As a result of the accidental death due to the explosion the Secretary caused an inspection to be made of the job site on July 11, 1972. This resulted in the issuance of the citations against the Respondent, one alleged to be a serious violation, [*21] defined as one likely to cause death or serious physical harm by Section 17(k) of the Act, and one violation not of a serious nature. A penalty of $700.00 was proposed for the alleged serious violation. No penalty was recommended for the nonserious one.
The citation for a serious violation alleged violation of 29 CFR 1926.57(a)(1) in the following language:
Failure to provide effective mechanical ventilation where every (sic) gases exist during the course of construction.
The other citation alleged violation of 29 CFR 1910.21(b)(6). The alleged violation was described as follows:
Failure to instruct employees required to enter confined or enclosed spaces to the nature of the precautions to be taken and in the use of protective and emergency equipment.
In its notice of contest the Respondent denied both citations specifically. It contended that it had no responsibility to use mechanical ventilation in an area where it could not have reasonably foreseen the presence of gas.
In paragraph III(a) of the Secretary's Complaint the Citation for serious violation was amended as follows:
On or about July 11, 1972 the Respondent, Edgewood Construction Company, Inc., violated Section [*22] 5(a)(1) of the Act in that Respondent failed to provide a place of employment free from recognized hazards likely to cause death or serious physical harm to his employees; to wit respondent failed to test for hazardous concentrations of gas before allowing employees to enter an area where respondent knew or with the exercise of reasonable diligence could have known that such hazardous concentrations were likely to exist without properly and adequately ventilating such area.
This subparagraph amends citations number 1(serious), wherein Respondent was alleged to have violated the standards set forth at 29 CFR 1926.57(a)(1). Such amendment effects no change with respect to either the factual situation upon which the allegation is based or the nature of the conduct with which respondent is charged.
The Secretary failed to set forth the reasons for amendment as required by Rule 33(a)(3).
The Respondent subsequently filed an answer in which there was a general denial of the allegations of the Complaint without raising any objection to the amendment which alleged a violation of what is known as the general duty clause of Section 5(a)(1) of the Act instead of violation of Section [*23] 5(a)(2) involving a promulgated standard. Having consented to proceed with the trial it must be concluded that the Respondent has suffered no disadvantage or surprise by the amendment. For that reason the matter will be disposed of on its merits.
The responsibility placed upon the Secretary by the Congress through the enactment of Section 6(a) of the Act of adopting safety and health standards applicable to every conceivable type of employment in the economy is an awesome one. It is understandable that there would be some difficulty in selecting an appropriate standard under the facts in the instant case. The Secretary obviously chose the wrong standard. 29 CFR 1926.57(a) does not fit the circumstances in the instant case.
Section 5(a)(1) makes it mandatory that each employer furnish each of his employees a place of employment free of recognized hazards which are likely to cause death or serious physical harm.
The general duty clause was not enacted as a general substitute for the standards. Its purpose was to protect employees working under special circumstances for which no standard exists. Before a charge of violation of the general duty clause can be sustained it must [*24] be shown that there was a recognized hazard within the meaning of the statute. A recognized hazard is a condition which is known to be hazardous, not necessarily by each and every individual employer, but known generally throughout the particular industry. On December 17, 1970, Rep. Steiger speaking in support of the bill reported by House-Senate Conference Committee explained what was meant by the term "recognized hazard." He said that this requirement is made realistic by its application only to such situations where there are such hazards as can be readily detected by means of the basic human senses. Hazards which require technical or testing devices to detect them were not intended to be within the scope of the general duty requirement, Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, P.L. 91-596), 92nd Congress, 1st Session, June 1971, page 1217.
The grim tragedy which confronts the trier of the facts in the instant case is that young DiLuzio, who was only 24 years of age at the time of his death on July 24, 1972, would not have lost his life if someone had only had the foresight to test for the presence of gas before he descended into [*25] the manhole and attempted to set up the alignment instrument. The Respondent apparently assumed that it had fulfilled its obligation to its employees under the Act when it notified the gas company and other utilities prior to the start of the project that an excavation was going to be made and when it called the gas company to have a crew sent out whenever leaking gas was detected. The Respondent relied upon the employer who was most knowledgeable of the proper methods of protecting against gas explosions in such circumstances, the gas company. It is now become clear that there was an accumulation of gas in the manhole in which DiLuzio was killed. Apparently it was not in sufficient concentration to be detected by the sense of smell. It now seems elemental that when it became known that the approximately 50 year old gas line was so corroded that continued leaking of gas might be anticipated, either the gas company should have been present to test for gas before anyone entered enclosed places, or the Respondent should have made tests itself. There has been no showing that any such responsibility rested upon the Respondent. Apparently there is none since the Secretary relies [*26] on the general duty clause which is tantamount to an admission that this was a hazard the Secretary himself had not contemplated. How then can the Respondent be charged with failing to test for gas in the manhole?
Reference to the legislative history of the Act reveals that no recognized hazard existed. The presence of gas could not be detected through use of the basic senses. It could be discovered only by means of testing instruments. The Respondent was aware of the fact that a gas line was present. After having notified the gas company of their intention to excavate a trench beforehand, calling them on every occasion when leaking gas was known to be present and relying upon the gas company's knowledge and experience in dealing with a potentially explosive gas, the Respondent was justified in assuming that it was safe to proceed with the work without testing after July 5, 1972. The gas company's official who tested for gas on July 5, 1972, said that it was their opinion that there was no leaking gas after the latest repairs and test. The Respondent could reasonably conclude on the basis of these facts, and the presence of gas company employees later without any communication [*27] from the gas company, that there was no risk of injury to its employees. This was an erroneous conclusion as subsequent events revealed, but it doesn't follow that there was a violation of Section 5(a)(1) of the Act. The Secretary has not sustained the burden of proof of such a violation.
The Review Commission has held that where a respondent did not know of a hazardous condition, it cannot be held to be responsible unless there was failure to exercise reasonable diligence. Where the hazardous condition resulted from circumstances over which a respondent had no control, there is no violation; just as each violation need not result in an accident, neither does the mere fact that an accident occurred indicate there was a violation. See Secretary of Labor v. Hanovia Lamp Division, Canrad Precision Industries, Inc.,
The Secretary has also failed to sustain the burden of proof that instruction on safety was inadequate. The surviving laborer, Schryver, admitted (somewhat reluctantly) that the Respondent employees were told to take precautions where gas might be present both prior to the Kensington Avenue project [*28] and after gas leaks were detected. There is some doubt as to whether the method of ventilation used by the Respondent by taking off the lid and allowing the manhole to ventilate for 15 minutes would be adequate where there is a continuing major leak, but it is now clear that such a precaution was not sufficient in the situation which existed on July 11, 1972. The gas company witness said that the concentration of gas in the manhole was so strong after the explosion that he felt that it was unsafe to enter until the next day. This shows conclusively that the gas company should have either asked that the project be stopped until the corroded pipe was replaced, or should have sent someone out to test for gas in all enclosed places each day before work was begun.
FINDINGS OF FACT
Upon consideration of the testimony, documentary evidence, and the record as a whole, the Judge makes the following findings of fact and conclusions of law:
1. The Respondent is a Connecticut corporation having its principal place of business in the State of Connecticut. It engages in the construction business in this state and in other states of the United States.
2. On July 11, 1972, at approximately [*29] 8:00 a.m. at New Haven, Connecticut there was an explosion due to a concentration of accumulated natural gas leaking from adjacent corroded gas lines owned and maintained by the Southern Connecticut Gas Company. The sewer project there under construction was under the dominion and control of the Respondent and Respondent's employees were present at the time of the explosion. The fatal injuries sustained by Frederick G. DiLuzio at such time and place were the direct result of such explosion, but there is no basis upon which to conclude that the Respondent failed to exercise reasonable diligence in protecting its employees from recognized hazards.
3. The Respondent, although not having a printed booklet or file of safety regulations applicable to employees or a formal training school for giving safety instructions, gave directions and instructions to its employees with reference to their safety.
CONCLUSIONS OF LAW
1. Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970; and is and was at all times material herein an employer under [*30] the provisions of Section 3(5) of the Act and, as such, subject to its provisions under Sections 4(a) and 5(a) and the standards promulgated under the authority of Section 6 thus giving this Commission jurisdiction of the Respondent and the subject matter.
2. The Secretary has not sustained the burden of proof that the Respondent violated Section 5(a)(1) of the Act on July 11, 1972.
3. The Secretary has not sustained the burden of proof that the Respondent violated the standards set forth pursuant to the authority of Section 5(a)(2) of the Act as 29 C.F.R. 1910.21(b)(6).
ORDER
Upon consideration of the above set forth findings and conclusions and the record as a whole, it is hereby ORDERED that;
1. The Citation for a serious violation of Section 5(a)(1) of the Act and the proposed penalty thereon of $700.00 be vacated, and that
2. The Citation for violation of 29 C.F.R. 1910.21(b)(6) be vacated.