Docket No. 782

CORBIN LAVOY, d/b/a EMPIRE BORING COMPANY

OSHRC Docket No. 782

Occupational Safety and Health Review Commission

May 24, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

James E. Buckley, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On November 22, 1974, Administrative Law Judge James P. O'Connell rendered his decision and order in this case. On December 20, 1974, Commissioner Moran directed review sua sponte of the Judge's decision and invited submissions on the following issues:

1. Was there sufficient evidence to sustain the Judge's findings of a violation of the Act based upon the charges framed under occupational safety and health standards published at 29 C.F.R. § § 1926.20(b)(1) - (2), and 1926.103(a)(1) - (2)?

2. Where the said standards properly promulgated and did the respondent have notice thereof?

3. Was respondent an employer for purposes of the Act?

As to the first and third issues, we find no error in the Judge's evaluation of the evidence, and his disposition is accordingly affirmed. We do not pass, however, upon the judge's findings concerning 29 CFR § 1926.103(a)(1) - (2). These findings were favorable to respondent, and accordingly do not fall within the intended scope of the direction [*2] for review. With respect to the second issue, the validity of a standard is not a question of subject matter jurisdiction n1 but must be raised as an affirmative defense n2 at an early stage of the proceedings. River Terminal Railway Company, BNA 3 OSHC 1808, 1811-1812, CCH 1975-76 OSHD para. 20,215 at 24,071 (No. 4419, December 12, 1975) and cases cited. We shall accordingly decline to entertain the validity question, except as to that standard which the respondent specifically attacked before the Judge. n3

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n1 United States v. Nudelman, 104 F.2d 549, 552 (7th Cir.), cert. denied, 308 U.S. 589 (1939); A.J. McNulty & Co., Inc., No. 2295 (April 8, 1976).

n2 Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., No. 75-1584 (3d Cir., March 26, 1976), aff'g, 15 OSAHRC 770, BNA 3 OSHC 1003, CCH 1974-75 OSHD para. 19,526 (No. 2818 etc., April 11, 1975).

n3 I add my own view that no provision of the Act has empowered the Commission to declare standards invalid. United States Steel Corp., BNA 3 OSHC 1343, CCH 1974-75 OSHD para. 19,047 (No. 2975 & 4349, November 14, 1974) (concurring opinion); Santa Fe Trail Transport Co., BNA 1 OSHC 1457, CCH 1973-74 OSHD para. 17,029 (No. 331, December 18, 1973) (dissenting opinion), rev'd 505 F.2d 869 (10th Cir. 1974). To preserve its claim for possible judicial scrutiny, however, respondent must nevertheless plead the issue before the Commission. See Todd v. S.E.C., 137 F.2d 475 (6th Cir. 194o). Two courts have expressly held that validity questions may be considered at the judicial stage of an enforcement proceeding. Arkansas-Best Freight System, Inc., No. 75-1249 (8th Cir., January 29, 1976); Atlantic & Gulf Stevedores, Inc., v. O.S.H.R.C., No. 75-1584 (3d Cir., March 26, 1976). The Third Circuit, in the latter case, has gone further, however, and stated its view that the Commission may consider an affirmative defense of invalidity.

[*3]

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Respondent was cited for failure to comply with 29 CFR § 1926.55(a) because of the alleged exposure of his employees to an excessive airborne concentration of toluene. The cited standard incorporates by reference the requirements contained in "Threshold Limit Values of Airborne Contaminants for 1970" published by the American Conference of Governmental Industrial Hygienists (ACGIH). This publication establishes an exposure limit for toluene of 200 parts per million (ppm) on an 8 hour time weighted average basis.

Respondent has never seriously contended that his employees were not exposed to an excessive concentration of toluene. Indeed, two of his employees died as a result of such exposure. Thus, so long as the standard is valid, the violation is established. At the hearing, however, respondent argued that 29 CFR § 1926.55(a) was invalid because the ACGIH standard was not published in the Federal Register.

The Judge ruled that the requirements of the ACGIH standard were not unenforceable solely because they were not published in the Federal Register. This was clearly correct. The cited standard, [*4] 29 CFR § 1926.55(a), was published in the Federal Register, and incorporated by reference the ACGIH standard. The Administrative Procedure Act specifically permits the incorporation by reference in the Federal Register of "matter reasonably available to the class of persons affected thereby . . . ." 5 U.S.C. 552(a)(1).

In his brief before the Judge, respondent further argue that the ACGIH material was not properly incorporated because it was not reasonably available. We do not agree. Respondent has not demonstrated that the ACGIH standard was not available to employers in general. The record shows only that the Area Director was confused as to whether the ANSI or ACGIH standard was the referenced material. This says nothing about the general availability of the ACGIH standard. The same may be said for the slight delay experienced in forwarding the ACGIH standard to respondent's counsel. n4

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n4 Because of a misunderstanding on the part of the Secretary's area director, when the hearing convened, the Secretary, instead of producing the ACGIH standard, produced a standard published by the American National Standards Institute (ANSI) pertaining to toluene exposure. The ANSI standard also established an 8 hour exposure limit of 200 ppm. Respondent objected that the wrong standard had been produced. The Secretary ultimately agreed, but argued that there was no prejudice because the standards contained the same requirement. He offered to produce the ACGIH document, and to withdraw the citation if the ACGIH standard contained a different requirement than the ANSI standard. The Judge continued the hearing with the understanding that the Secretary would produce the correct document.

Before the hearing reconvened twelve days later, the Secretary provided respondent with a copy of the ACGIH standard. When the hearing reconvened, respondent moved to vacate the citation on the ground that the standard was invalid for not having been published in the Federal Register. We would also note, then, that because the ANSI and ACGIH standards contain the same substantive requirements, it is clear that even on the facts presented, respondent could not have been prejudiced by the delay.

[*5]

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Accordingly, the Judge's decision is AFFIRMED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation alleging that respondent failed to comply with the occupational safety and health standard codified at 29 C.F.R. § 1926.55(a) should be vacated because the standard's incorporation by reference of ACGIH n5 threshold limits for air contaminants n6 denies respondent due process and fails to comply with the "availability" requirements of the Administrative Procedure Act.

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n5 American Conference of Governmental Industrial Hygienists.

n6 I also take note of the fact that many responsible and knowledgeable observers question the relevancy of threshold limit values as appropriate criteria for establishing occupational safety and health standards. The present head of the Occupational Safety and Health Administration, Dr. Morton Corn, was quoted in an interview with the Occupational Safety and Health Reporter, a publication of the Bureau of National Affairs, Inc., on January 29, 1976 (Volume 5, No. 35), as stating that "some of the existing threshold limit values were established on the basis of irritant effect, not toxic effect."

[*6]

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The Administrative Procedure Act provides at 5 U.S.C. § 522(a)(1) that:

"Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purposes of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register." (Emphasis added.)

My colleagues and I are in agreement that this provision requires that in order for matter to be validly incorporated by reference it must be reasonably available to the persons affected by it. They conclude, however, that respondent failed to show that the material was not reasonably available. I submit that such a conclusion is not supported by the record. To the contrary, the record in this case demonstrates the unavailability of the ACGIH pamphlet.

The record reveals that copies of the ACGIH pamphlet are difficult [*7] to obtain even by Occupational Safety and Health Administration (OSHA) officials, the experts in the field of occupational safety and health. Complainant's inspector who inspected respondent's worksite was not familiar with any publications of ACGIH. Indeed, he testified that he had used an American National Standards Institute (ANSI) publication in formulating the citation and that he thought the ANSI publication was the publication incorporated by reference in § 1926.55(a). Additionally, the Secretary of Labor's representatives at the hearing even further revealed their total ignorance (not simply confusion) of the incorporated material, for they had not heard of it and were not able to locate it prior to trial. They finally located it at the national office of OSHA and forwarded it to respondent during a continuance in the hearing at Albany, New York.

The Secretary had even failed to comply with his own regulation, 29 C.F.R. § 1926.31(a), which states that a copy of any document incorporated by reference in an occupational safety and health standard can be examined at the regional and field offices of the Occupational Safety and Health Administration. At the hearing, his [*8] area director remarked, "I don't have that volume here" and that no "OSHA office within Albany would have it." Albany is a field operations office for Region II of OSHA.

Moreover, the record indicates that an employer might not be able to get a copy of the pamphlet at all. Though the national office of OSHA did send a copy for the hearing, there was no showing that the office could mail out copies upon request. The pamphlet itself specifies that requests for permission to republish or reprint the threshold limit values contained therein must be directed to the ACGIH. Additionally, even if an employer did know where to contact the ACGIH, there was no showing that the pamphlet was readily available from the ACGIH. The respondent's counsel complained at the hearing that he had been trying to reach the ACGIH for a day and a half, but they were not answering their telephone. Therefore, the record indicates that the pamphlet might not be available except to an employer who was willing to travel to Washington, D.C., in order to inspect a copy of it. I conclude that requiring such an effort does not fulfill the availability requirements of the Administrative Procedure Act and does not [*9] afford the degree of fairness which it requires.

The fact that the Director of the Federal Register has approved the incorporation by reference of an ACGIH publication does not foreclose examination of its availability. Even if it is assumed that in approving such an incorporation the Director of the Federal Register took into consideration the question of availability to see if it was reasonably obtainable, the language of 5 U.S.C. § 552(a)(1) does not render his determination conclusive of the issue.

The class of persons affected by OSHA regulations is not a small or concentrated group of persons in a specialized field of activity - it affects every working man and woman in the United States. n7 29 U.S.C. § 653(a). Every employer is bound by their requirements and is subject to both civil and criminal penalties for failure to observe them. 29 U.S.C. § 666. It is therefore unconscionable to hold an employer liable for noncompliance with a regulation which is not available to him at any place within the State where he does business.

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n7 As I pointed out in Secretary v. Northern Metal Company, 20 OSAHRC 869 (1975):

"A 1973 United States Government Printing Office publication of OSHA . . . standards covers some 1,362 pages, encompassing more than 20,000 standards."

[*10]

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This particular incorporation by reference also impairs the effectiveness of the Act. Congress recognized that the effectiveness of the Act is dependent to a large extent on voluntary compliance with the regulations. In 29 U.S.C. § 651(b)(1) Congress declared its purpose behind this legislation to be:

"[T]o assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions." (Emphasis added.)

Essential to the promotion of voluntary compliance is a body of regulations and guidelines which enable the people affected thereby to know - prior to any enforcement procedures - what is expected of them. n8 Where mere acquisition of a printed copy of the regulation is a hardship, any hope of encouraging or stimulating voluntary compliance becomes little more than an [*11] idle gesture.

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n8 Otherwise they do not "provide constitutionally adequate warning to an employer" as required by law. Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148, 1152 (1st Cir. 1975).

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A 1972 report of the House Subcommittee on Environmental Problems Affecting Small Business n9 noted the following:

"The subcommittee finds that the single most important problem of the Federal occupational safety and health program is the inability of the small businessman to learn what is expected of him. Witness after witness testified that they cannot find out exactly which standards apply to them, and which do not. The standards promulgated by the Secretary of Labor, together with all the material incorporated by reference, constitute a mound of technical regulations that few laymen can understand. Small businesses simply do not have the time nor expertise to comprehend fully and accurately the standards. A small independent retailer, for example, would have to spend [*12] hours reading the material, attempting to learn what applied to his business. And yet, he would still be uncertain as to what the law requires . . . ." n10

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n9 H.R. Rep. No. 92-1341, 92d Cong. 2d Sess. (1972).

n10 Id. at 7.

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The difficulty of obtaining access to these regulations is integral to the problem of employer information. The report goes on to say:

"The Department of Labor has not made sufficient efforts to inform small businessmen of the law and the regulations promulgated thereunder. It is the subcommittee's understanding that the Department has not even caused copies of the standards to be printed or on hand for distribution, but rather has relied on extra copies of the Federal Register to be made available to businesses. n11

This condition of unavailability is exacerbated where matter incorporated by reference is concerned. Even extra copies of the Federal Register are of no use when the pertinent standard states merely that an employer should avoid exposure of its employees to any material or [*13] substance "at a concentration above those specified in the 'Threshold Limit Values of Airborne Contimants for 1970' of the American Conference of Governmental Industrial Hygienists."

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n11 Id. at 9.

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For the foregoing reasons, it is clear that the ACGIH pamphlet was not "reasonably available." For my colleagues to hold otherwise with full knowledge that it is a virtual impossibility for an employer to learn what is expected of him in order to comply with a standard is inconsistent with the requirements of the Administrative Procedure Act, the aims of the Occupational Safety and Health Act, and the employer's right to fair treatment. Furthermore, they have completely missed the mark in concluding that "respondent could not have been prejudiced by the delay." (Emphasis added.) That is not the crux of the issue. Finally, their conclusion that "[r]espondent has not demonstrated that the ACGIH standard was not available to employers in general" is belied by the facts contained in the record. Apparently, they expect [*14] the ridiculous, that is, that every employer contact others throughout the country to see if they have been able to obtain the referenced material.

Since this decision does not discuss all the matters covered by Judge's O'Connell's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor and Stephen D. Dubnoff, for Secretary of Labor

Arthur F. McGinn, Jr., for Respondent

STATEMENT OF THE CASE

James P. O'Connell, Judge.

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act") contesting a citation for willful violation and two citations for serious violations issued by complainant against respondent under the authority vested in the Secretary of Labor by Section 9(a) of the Act.

The citations allege that as a result of an inspection of a workplace under respondent's ownership, operation or control located at the Alden Street railroad underpass, Maplewood Section, Town of Colonie, New York, the respondent violated Section 5(a)(2) of the Act by failing to comply with five occupational safety and health [*15] standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. The complaint filed in this proceeding alleges that the violations occurred "on or about November 22, 1971".

The citations, each containing a single item, and a notification of proposed penalty were issued on April 4, 1972. Respondent, through an attorney's letter dated April 12, 1972, contested all citations and the penalties proposed thereon totaling $8,400.00.

The standards, allegations, and the proposed penalties involved in the contest are as follows:

Citation	Standard Involved	Description of Violation	Penalty
Willful
1.	29 CFR 1926.55(a) n1	The employer did expose	$7,000.00
		his employees to a
		material, or substance,
		to wit, Toluene, at a
		concentration above those
		specified in "The Threshold
		Limit Values for Airborne
		contaminants for 1970" of
		the American Conference of
		Governmental Hygienists.

Serious
1.	29 CFR 1926.20(b)(1)	The employer failed to	$ 700.00
	and (b)(2) n2	initiate and maintain,
		such programs as were
		necessary to assure a
		workplace free of work-
		ing conditions that were
		dangerous or hazardous to
		his employees.
		The employer failed to
		provide frequent and
		regular inspections of
		job site, materials, and
		equipment by a designated
		competent person.

2.	29 CFR 1926.103(a)(1)	The employer failed to	$ 700.00
	and (a)(2) n3	provide appropriate
		respiratory protective
		devices to prevent harm-
		ful exposure to his
		employees, and employer
		permitted the use of
		protective respiratory
		devices not approved by
		the U.S. Bureau of Mines
		nor acceptable to the
		U.S. Department of Labor
		for the specific contami-
		nant, to wit, Toluene, to
		which the employees were
		exposed.

[*16]

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n1 Formerly 29 CFR 1518.55(a) as adopted by 29 CFR Section 1910.12.

n2 Formerly 29 CFR 1518.20(b)(1) and (b)(2) as adopted by 29 CFR Section 1910.12.

n3 Formerly 29 CFR 1518.103(a)(1) and (a)(2) as adopted by 29 CFR Section 1910.12.

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The standards which are alleged to have been violated, as promulgated n4 by the Secretary, provide as follows:

Subpart D - Occupational Health and Environmental Controls.

29 CFR 1926.55 Gases, vapors, fumes, dusts and mists.

(a) Exposure of employees to inhalation, ingestion, skin absorption, or contact with any material or substance at a concentration above those specified in the "Threshold Limit Values of Airborne Contaminants for 1970" of the American Conference of Governmental Industrial Hygienists, shall be avoided.

Subpart C - General Safety and Health Provisions.

29 CFR 1926.20 General safety and health provisions.

(b) Accident prevention responsibilities. (1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply [*17] with this part.

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

Subpart E - Personal Protective and Life Saving Equipment.

29 CFR 1926.103 Respiratory protection.

(a) General. (1) In emergencies, or when controls required by Subpart D of this part either fail or are inadequate to prevent harmful exposure to employees, appropriate respiratory protective devices shall be provided by the employer and shall be used.

(2) Respiratory protective devices shall be approved by the U.S. Bureau of Mines or acceptable to the U.S. Department of Labor for the specific contaminant to which the employee is exposed.

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n4 By publication in the Federal Register on April 17, 1971 (36 F.R. No. 75).

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At the hearings held herein at Albany, New York, on October 18, 19 and 30, 1972, the complainant's case consisted of a stipulation as to the correctness of respondent's name as indicated on the citation and complaint, [*18] the sworn testimony of eight witnesses and eleven evidenciary exhibits. Respondent's case consisted of seven documents received into evidence. No affected employees or authorized employee representative appeared in this proceeding. Post-hearing briefs, memorandum, and reply briefs were submitted by the parties.

JURISDICTION AND ISSUES

Jurisdiction of this action and of the respondent under the Act is disputed and is one of the threshold issues to be determined in this contest.

A review of the pleadings on file herein including the responses of the parties to the instructions issued by the presiding Judge, and the record of hearing itself, all of which comprise the record (Tr. 158), reflects that multiple issues are raised in this proceeding. Those issues are as follows: (I) whether the respondent was an employer, having employee(s) at the workplace in question, within the meaning of Section 3 of the Act; (II) whether the respondent was engaged in a business affecting commerce within the meaning of Section 3 of the Act; (III) whether the respondent violated the standard at 29 CFR 1926.55(a), and if so, was such violation a willful violation within the meaning of Section [*19] 17(a) of the Act, and what penalty is appropriate therefore. (IV) whether the respondent violated the standards at 29 CFR 1926.20(b)(1) and (b)(2), and if so, were such violations serious violations within the meaning of Section 17(k) of the Act, and what penalty is appropriate therefore; and (V) whether the respondent violated the standards at 29 CFR 1926.103(a)(1) and (a)(2), and if so, were such violations serious violations within the meaning of Section 17(k) of the Act, and what penalty is appropriate therefore.

FINDINGS OF FACT

Having carefully considered all of the pleadings, including the post-trial briefs and memorandum filed by the parties, the stipulations entered upon the record, the sworn testimony and documentary evidence presented in this case, having considered the demeanor of the witnesses testifying in open hearing and weighing the credibility thereof, I make the following findings:

1. Respondent, Corbin Lavoy (hereinafter referred to as Lavoy), at all times pertinent herein, is a sole proprietor, owning, operating and doing business under the firm name and style of Empire Boring Company (hereinafter referred to as Empire). He maintains an office and place [*20] of business out of his home at R.D. #6, Geyser Road, Ballston Spa, New York (Pleadings; Stipulation: Tr. 15, Exh. C-7 & C-11, Tr. 220).

2. Respondent, at all times pertinent herein, was engaged in the business of boring tunnels and passageways for sewage systems under highways and railroad right-of-ways. He worked as a subcontractor for general contractors in the construction industry in the Albany, New York area. He utilized his own boring equipment, his own services and the labor of workers hired and controlled by him (Exh.C-11).

3. Respondent had a telephone at his home which was billed to him personally and which was used for business purposes (Stipulation: Tr. 388-389). Some advertising material bearing the name of Empire listed respondent's personal telephone number as the phone number of the company (Tr. 389).

4. At all times pertinent herein, and specifically during the dates of November 17 through November 22, 1971, a construction project involving the installation of trunk sewers for the Town of Colonie (hereinafter referred to as Colonie), Albany County, State of New York, known as the Dry River Interceptor was in progress. The work was being performed pursuant [*21] to a written contract made and entered into on January 4, 1971, between the Town Board of Colonie and County Excavation, Inc. (hereinafter referred to as County), a Corporation organized under the laws of the State of New York (Exh. R-4, Tr. 206-207). The contract was referred to as the Dry River Contract and the cost of the project was aided by New York State and Federal funding (Tr. 160-161).

5. The above construction project was for a sewer interceptor, about a mile and a half long, whose purpose was to eliminate a small, obsolete primary sewage treatment plant, known as the Swatling Road Sewer Treatment Plant, take the sewage from this plant down to the new Albany County Sewer Interceptor which was contemporaneously under construction. The new sewer pipe line, ranging in size up to 24 inches in diameter, was to take the sewage from the small plant, bring it down across Route 32 or Saratoga Street, to a manhole constructed by the Albany County Sewage District, then the sewage would be transmitted to the new Albany County North Sewage Treatment Plant for treatment and final disposal into the Hudson River. In transit the sewage would go under New York State Highway, Route 32 [*22] (Tr. 130-131, 137). This sewer system was intended to carry raw sewerage from collection systems through the Latham, New York area. The vicinity that the sewer system covered and the sewage involved would come from local residential and business premises such as the Latham Shopping Center located on a New York State highway at the intersection of Route 9 and Route 7 (Tr. 161-162).

6. County as the general contractor made an oral agreement with respondent as a sub-contractor, for Empire to complete the three bores involved on the Dry River Project. One bore under a railroad right-of-way was 98 feet long, another was for 50 feet, and the third of 53 feet was also under railroad tracks situated on Alden Street in the Maplewood section of Colonie (Tr. 191-192). Respondent had performed similar subcontracting jobs for County for a period of seven to eight years prior to this project. The previous type of work involved as herein was boring and jacking on several sewer and water line projects in the surrounding counties in the State of New York (Tr. 163). Lavoy and County had an amicable working arrangement developed over the years (Tr. 164). Respondent on this project was to be [*23] paid on a fee basis of $20.00 to $30.00 per foot installed of steel sleeve (Tr. 164, 190-191). Under the contract between County and Colonie, County was to receive $125.00 per linear foot for a 36" bore completed and $175.00 per linear foot for a 42" bore (Exh. R-4, Tr. 212).

7. Pursuant to such oral agreement Lavoy, utilizing his own equipment and labor (Tr. 221), plus workers hired by him, completed the 98 foot and the 50 foot bores and for about three months prior to November 18, 1971, has been doing the boring work on Alden Street (Tr. 169).

8. A two-part procedure was involved in the boring operation under the railroad tracks on Alden Street. The first part is the open pit in which the employees work and the other part is the actual installation of the metal sleeve under the tracks. The purpose of the bore under the tracks was that County could put the sewer line through this bore and therefore have a continuous sewer line without disturbing the operations of the railroad (Tr. 135). County employees first excavated the pit to the proper grade and installed the pit bracings. After the pit was excavated the employees of County no longer worked in it (Tr. 222). Then Empire [*24] took over - placed its boring equipment into the pit - and started boring and jacking and placing the metal sleeve or pipe line under the given area, namely, the railroad tracks. County had no employee working on the second part of the operation (Tr. 164-165). Employees of C. T. Male Associates, the project engineers, checked the angle of the bore as the work progressed (Tr. 234).

9. The second part of the above borning operation on Alden Street sub-contracted to Lavoy consisted of Making a bore under the railroad right-of-way located approximately 900 feet to the west of Route 32 (Tr. 132-133). The estimated length of the bore was approximately 52 feet. The bore, or the cutting into and through the soil, was at a point eight to nine feet beneath the tracks (Tr. 151). Respondent attempted to bore by mechanical means but such means were found to be unsuitable due to the hard, gravelly and rocky composition of the soil encountered during the initial stage of the excavation (Tr. 133-134, 137). As a consequence, during November 1971 the boring was being performed by hand, excavating one or two feet at a time in front of a metal casing. As the excavation was extended and the soil [*25] removed the casing was jacked forward into the excavated area. The casing had a 42" outside diameter (Tr. 134, 138, 150).

10. County did not supply tools or equipment to respondent to do the boring work (Tr. 136) nor did it supply any respiratory equipment, air pumps or air hoses to Empire (Tr. 174-175).

11. During the period from July 23, 1971 to October 18, 1971, County issued to Lavoy seven (7) checks totalling $5,300.00 representing partial payments for boring work performed by respondent on the Dry River Interceptor project (Exh. C-9). Such payments were made directly to Lavoy as a sub-contractor (Tr. 220). Lavoy acknowledged his relationship to County was as a sub-contractor (Tr. 114). While Lavoy himself, personally did certain work on the project, he was not paid a salary nor was he carried on County's payroll at any time (Tr. 221, 238).

12. Prior to and on November 22, 1971, Lavoy was working on another boring job for Lang Brothers at a construction project on New York Highway, Route 5 (Tr. 102, 104-105, 176). Route 5 was about six miles distant from the boring job in progress on Alden Street (Tr. 106, 227). While respondent was engaged on this other project, [*26] County paid or credited him for every foot of boring that progressed on the Dry River Interceptor project. As long as Empire did the work respondent received the payments (Tr. 227-228).

13. Respondent, as the boring sub-contractor to County, hired men to work for him on the Dry River project. Prior to November 18, 1971, respondent had hired four men, namely, Carl H. Van Epps, Roger K. Jones, John E. Lee and Paul D. Pratt. These men were respondent's employees (Tr. 110). They were not hired, controlled nor directed as to their hours or performance of work by County nor did County have any authority to fire these employees (Tr. 167-168).

14. In accordance with a prior and mutually agreeable practice and procedure existing between respondent and County, and as was customary in the construction industry, Van Epps, Jones and Lee were carried on the payroll of County for the Dry River project (Tr. 165-166). Since the general contractor was held responsible by the State of New York to insure that the employees of a sub-contractor were paid the prevailing wage rate, the procedure of County carrying respondent's employees on its payroll had been followed for about a year prior to November [*27] 1971 on this and other construction projects (Tr. 168-169, 230-231).

15. Jones was paid weekly by County certain sums of money, less payroll deductions, based on the number of hours worked during the payroll periods commencing with July 23, 1971 through December 1971 (Exh. R-2). On September 11, 1971, at the time he was being carried on County's payroll, Jones made a purchase of $21.50 from a Sun Oil Company gas station at Saratoga Springs and charged such purchase to Empire (Stipulation: Tr. 391).

16. Lee was also paid by County for 20 hours worked weekly covering the weekly payroll periods commencing on October 8, 1971, through the payroll period of November 17, 1971 (Exh. R-2, Tr. 199-200).

17. A hand written notation, the word "Slim", n5 was placed in the upper left had corner on the individual payroll records of Van Epps, Jones and Lee by the office personnel of County to signify that the men listed on such payroll sheets were the employees of respondent (Tr. 232, Exh. R-2).

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n5 a nickname for Corbin Lavoy.

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18. Pratt was never listed on the payroll of County at any time (Tr. 175); nor was County informed or ever aware prior to November 22, 1971, that Pratt was working on the Dry River Interceptor construction site at the bore being made by respondent on Alden Street (Tr. 214, 231).

19. The arrangement between respondent and County was that after respondent hired and assigned a worker to the construction site (such as the bore in progress on Alden Street) and when the worker came on the site, he was supposed to present a slip to County's foreman listing his social security number. County's superintendent or foreman would then be on notice of the worker's presence, and County's payroll office would thereafter be informed so the worker could be placed on the general contractor's payroll (Tr. 168, 214). Under this oral arrangement either Lavoy, the employee Pratt, or someone connected with respondent should have taken steps to place Pratt onto County's payroll (Tr. 215, 232). Prior to November 22, 1971 this procedure was not followed concerning the employee Pratt.

20. From July 23, 1971 through November 17, 1971, the gross sum of $3,459.84 was paid as payroll by County to respondent's [*29] employees for work performed on the Dry River Interceptor project (Tally Sheet: Exh. C-10). Such payments, together with the checks totalling $5,300.00 (Exh. C-9) paid directly to Lavoy, represented debits n6 to respondent's account. At the conclusion of the project such debits would have been deducted from the credits accruing to respondent for boring work completed by him on the fee basis detailed in finding number 6 above (Tr. 166, 185-188). County would also have made an adjustment, deductible from any final payment due respondent, for the proportionate share of insurance premiums paid for workmen's compensation coverage attributable to respondent's employees carried on County's payroll (Tr. 237-238).

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n6 Total of payroll and checks was $8,759.84 (Exh. C-10, Tr. 188).

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21. Since the Dry River Interceptor project received federal funding, County was required and did file detailed wage reports with the United States Department of Labor, Wage and Hour and Public Contracts Division, listing the names and other pertinent [*30] payroll data of those individuals working on the Dry River Interceptor project covering the weekly payroll periods July 28, 1971 through November 24, 1971 (Exh. R-5). The names of Van Epps, Jones and Lee, with their work classification as "laborer", appear on such reports.

22. The excavation pit and work site on Alden Street in the Maplewood section of Colonie was in close proximity to a large manufacturing plant of the Norton Company from which, in 1969, there had been a seepage or leakage from a broken underground line of a toxic material identified as toluene (Tr. 62, 255). Toluene is a toxic and highly volatile gas, heavier than air, which sinks low rather than rises (Tr. 52-54, 172).

23. From the time this leak occurred an odor was present in that section of the town. Various complaints about the odor were received from 1969 through August 1972 by Howard C. Wilson, the Chief Fire Inspector for Colonie (Tr. 62-63).

24. On November 9, 1971, Wilson and his Deputy Inspector, Ron Carey, notified John (Jack) Hoffman, Treasurer of County, that toluene gas was present in the area of the pit on Alden Street in the Maplewood Section of Colonie where County was engaged in "putting [*31] sewer casings under the railroad track" (Tr. 64-67, 170-173). Hoffman was advised to notify the boring company to get gas masks if they were going to continue to work in that area (Tr. 173).

25. Hoffman for about four days unsuccessfully tried to reach Lavoy during the day time and evening (Tr. 173, 189). Respondent during this time was working on Route 50, a New York State highway, for another construction company (Tr. 176). On or about November 15, 1971, Hoffman by phone spoke to Lavoy at his home in the early evening and told him about the call from the town officials of Colonie. Respondent was advised to get gas masks for his employees working in the pit on Alden Street because there were toluene gas fumes down there (Tr. 173-174, 188-190).

26. One or two days later Hoffman inquired of his superintendent if the men had masks. He was informed "they had some kind of a mask" (Tr. 173-174).

27. On November 17, 1971, John Lee, respondent's brother-in-law who was one of the men working in the pit, purchased two (2) dust masks from Trojan Hardware Co. (Sales slip: Exh. R-6; respondent's affidavit: Exh. C-11).

28. Respondent on more than one occasion prior to November 15, [*32] 1971, when he was welding in the excavation on Alden Street, smelled something funny. Once the odor was so strong that Lavoy lit a match to the surface of water in the pit and "it ignited and burned off". Respondent "did not know that it was a dangerous gas" (Exh. C-11; Tr. 267).

29. On Wednesday, November 17, 1971 and Thursday, November 18, 1971, respondent had two (2) employees, John E. Lee, age 42, and Paul D. Pratt, age 19, working in the pit on the bore operation on Alden Street. Lee was designated "foreman" on the job (Tr. 110; Exh. C-7). Their work consisted of the continued inserting of the steel casing underground; and involved the manual digging of dirt from the inside and from forward of the underground end of this steel casing and removing the same back through the casing to the open end. The casing was 42" in diameter and by this date had extended about 40 feet under the railroad tracks. One man at a time was supposed to be digging from inside and at the forward end of the casing. He would then be relieved by the other worker after a short period of time. On the job site was an air compressor and air hoses owned and supplied by respondent (Tr. 288). They were [*33] supposed to be used to pump air into the forward end of the casing while the man was working inside (Exh. C-11).

30. The last day respondent saw Lee and Pratt alive was after work on Wednesday, November 17, 1971 (Tr. 285). On Thursday, November 18, 1971, the two men came to respondent's house before going to the job site; Pratt left his car there and rode with Lee to the pit on Alden Street. Respondent was working on another project prior to November 18, 1971, and did not inspect the pit where the two men were employed nor did he designate anyone else to visit or inspect the workplace (Tr. 287-280). He had no safety program in effect at this time (Tr. 288).

31. On Thursday night, November 18, 1971, Mrs. Lee inquired of respondent as to the whereabouts of her husband. Respondent advised he had not seen him all day. The following night, Friday, November 19, 1971, Mrs. Lee again told respondent her husband had still not returned home. Respondent mentioned to her that "it was possible that Lee and Pratt had gone out on the town for a few drinks and he felt that they were alright" (Exh. C-11). Respondent did not see or hear from Lee or Pratt during the following weekend (Exh. [*34] C-7). Mrs. Pratt in the interim had reported her husband missing to the State Police (Exh. C-11). Neither respondent personally, nor anyone otherwise connected with Empire checked the excavation site located on Alden Street after the men were reported missing, from November 18, 1971, until the morning of November 22, 1971 (Exh. C-7).

32. On Monday morning, November 22, 1971, Lavoy went to the excavation site and at approximately 10:25 a.m. discovered that Lee and Pratt were inside the pipe. They were presumed dead. An inspection of the work site revealed that there were no air hoses leading into the casing (Respondent's voluntary statement to Colonie Police Department: Exh. C-7). Respondent immediately notified the proper authorities and the bodies were subsequently removed from the casing. "Dust masks were found on the bodies of the men as they were removed from the excavation hole" (Respondent's affidavit given to Chester Whiteside, OSHA Compliance Officer: Exh. C-11). No gas masks or respirator-type protective equipment were on the site or being worn by the deceased men (Tr. 101-102). The scene of the above occurrence is as depicted on the photograph received in evidence [*35] (Stipulation: Tr. 276-277; Exh. C-12).

33. The apparent date of death of Lee and Pratt was Thursday, November 18, 1971 (Stipulation: Tr. 286).

34. On November 22, 1971,

(a) a plastic vial labeled "outside the sewer", containing a cloudy liquid, was brought to the scientific laboratory of the New York State Police by Patrolman Syczyk. The liquid was analyzed and "identified as a mixture of toluene and water" (Exhs. C-1, and C-2, last page).

(b) a plastic vial labeled "inside sewer", containing a cloudy liquid, was brought to the same laboratory by the same police officer. The liquid was analyzed and "identified as a mixture of toluene and water" (Exhs. C1, and C-2, last page).

(c) Autopsies were performed at 1:15 p.m. and at 2:45 p.m. by Dr. Assad S. Daoud, M.D., Coroner's physician for Albany, New York, on the bodies of Pratt and Lee. During the performance of the autopsies the physician noticed that "the body in both individuals gave a gaseous odor" (Tr. 30; Exh. C-2, second page).

(d) Specimens of the blood, urine, liver kidney, brain and lungs of each deceased man were brought to the scientific laboratory of the New York State Police by Detective Joseph Savoca, Jr., [*36] of the Newtonville Police Department. The analysis of such specimens for volatiles revealed the presence of toluene in the blood, brain and lungs of both Pratt and Lee (Exhs. C-1, and C-2, last two pages).

35. The postmortem record concerning the body of Paul D. Pratt, under the heading "Anatomical Diagnoses" lists a chief diagnosis of "presence of toluene in blood, brain and lungs". Such report under the heading "Summary" states that "chemical analysis revealed the presence of toluene in the blood, brain and lungs" (Exh. C-2).

36. The postmortem record concerning the body of John E. Lee, under the heading "Anatomical Diagnoses" lists a chief diagnosis of "presence of toluene in blood, brain and lungs". Such report under the heading "Summary" states that "chemical analysis revealed the presence of toluene in the blood, brain and lungs" (Exh. C-1).

37. The five conditions found by Dr. Daoud during his autopsies on the persons of John E. Lee and Paul D. Pratt, listed as items No. 2 through 6 on each postmortem record (Exhs. C-1 and C-2), are conditions that were found consistent with the presence of toluene in the blood, brain and lungs of the deceased individuals (Tr. 43). [*37]

38. The cause of death of Paul Douglas Pratt was "Asphyxia, due to pulmonary and cerebral edema, due to inhalation of fatal fumes" (Certificate of death: Exh. C-3, Tr. 51).

39. The cause of death of John Earl Lee was "Asphyxia due to pulmonary and cerebral edema, due to inhalation of fatal fumes" (Certificate of death: Exh. C-4, Tr. 51).

40. On November 18, 1971, toluene gas and toluene liquid were present inside the steel casing and in the immediate area of the excavation pit at the worksite located on Alden Street in the Maplewood Section of Colonie. Respondent's employees, Lee and Pratt, were exposed to inhalation, ingestion, skin absorption and contact with such airborne and liquid substances at a concentration above that specified in the "Threshold Limit Values of Airborne Contaminants for 1970" of the American Conference of Government Industrial Hygienists (Booklet: Exh. C-14).

41. The threshold limit value specified for the substance "Toluene" (Toluol) is 200 parts of vapor or gas per million parts (200 ppm) of contaminated air by volume (Exh. C-14, page 14). Any time-weighted average concentration in excess of 200 ppm is unacceptable and constitutes a hazard to safety [*38] and health (Tr. 342, Exh. C-13: Acceptable concentrations of toluene, Tr. 51-53, 55).

42. Death due to inhalation or absorption of toluene gas or liquid would occur when an individual is exposed to an atmosphere containing between 600 to 800 parts per million (Tr. 55-57). Once a body has taken up a certain lethal level of toluene gas so that death has ensued, the blood and tissue level will remain at that level and will no longer absorb nor lose the amount taken up. There is a direct correlation between the amount of toluene gas in the air and at the same time the concentration level of toluene in the blood of an individual exposed to that gas (Tr. 55-57).

43. There is no evidence of record that on November 18, 1971, or prior thereto, that respondent had actual knowledge of the existence of the standard at 29 CFR 1926.55(a) and that he willfully, to wit: consciously and intentionally, violated said standard on that date.

44. On or about November 15, 1971, respondent received actual knowledge of the presence of toluene gas at the work site on Alden Street and that his employees were being exposed to such a condition (See finding No. 25).

45. On November 18, 1971, a serious [*39] violation of the standard set forth at 29 CFR 1926.55(a) existed at the work site on Alden Street, Maplewood, Town of Colonie, and two of respondent's employees were fatally exposed to such a violation.

46. Respondent, prior to November 15, 1971, was on notice that a gaseous and flamable substance was present in the excavation pit on the Alden Street workplace (See finding No. 28).

47. Respondent, prior to and on November 18, 1971, did not have any safety program in effect, had not initiated any accident prevention program nor provided for frequent and regular inspection by a competent person of the materials, equipment and job site located on Alden Street (Tr. 287-290).

48. On November 18, 1971, a serious violation of the standards set forth at 29 CFR 1926.20(b)(1) and (b)(2) existed at the worksite on Alden Street, Maplewood, Town of Colonie, and two of respondent's employees were fatally exposed to such a violation.

49. The evidence presented in this hearing fails to establish by the required preponderance of the credible evidence that respondent, on November 18, 1971, separately and distinctly from any other violation herein, violated the standards set forth at 29 CFR [*40] 1926.103(a)(1) and (a)(2).

50. Respondent on November 23, 1971, was interviewed by Detective Joseph Savoca, Jr., of the Colonie (Newtonville) Police Department, who was conducting an official investigation of the deaths of Lee and Pratt. Respondent gave information and signed a one-page, notarized, voluntary statement concerning the incident (Exh. C-7, Tr. 73). An investigation was also conducted by John F. LaBounty, Safety Inspector of the New York State Department of Labor, who orally interviewed respondent on November 23, 1971, at the Route 5 construction project on which Lavoy was personally working (Tr. 103-105, 122). Respondent was cooperative during the above investigations.

51. An OSHA investigation was commenced on December 1, 1971, by compliance officer, Chester Whiteside, subsequent to being advised by letter from County that two employees of Empire had died "on November 18, 1971 by gas asphyxiation during installation of an underground bore" (Letter: Exh. R-8). Respondent was interviewed by Whiteside on December 21, 1971, and executed a two-page affidavit on December 22, 1971 (Tr. 316, Exh. C-11). The respondent had a cooperative attitude during this investigation [*41] (Tr. 267).

52. Respondent, on November 18, 1971, had no prior history or record of any violation of the Act (Tr. 312).

53. During the 12 month period, between November 1970 and October 1971 inclusive, the total amount of deposits made into checking account No. 221-987-3 in the name of Empire at the Ballston Spa National Bank, Ballston Spa, New York, was $26,657.12 (Stipulation: Tr. 385-386). Two checks, Nos. 29674 and 29937, dated July 23, 1971 and September 17, 1971 respectively, from County to respondent, totalling $800.00, were not deposited in the above account (Exh. C-9).

54. In 1971 respondent made purchases in the name of Empire, totalling approximately $2,000.00, for gasoline and petroleum products, vehicle services, advertising materials and new and used boring and other equipment including payments for repairs (Stipulation: Tr. 391-396). Certain of respondent's purchases were made from business firms located at St. Paul, Minnesota, Heightstown, New Jersey, Canton, Ohio, and Racine, Wisconsin. The mails, parcel post and air freight services were used by respondent for business purchases.

55. The proposed penalty assessed in the sum of $7,000.00 for the alleged [*42] willful violation of the cited standard at 29 CFR 1926.55(a) is not appropriate; and, under the facts and circumstances present herein, an appropriate penalty must be assessed for a serious violation of the standard set forth at 29 CFR 1926.55(a).

56. The proposed penalty assessed in the sum of $700.00 for the serious violation of the standards at 29 CFR 1926.20(b)(1) and (b)(2), under the facts and circumstances present herein, is not appropriate.

OPINION

JURISDICTION: EMPLOYER

The threshold issue, involving the question whether respondent was an employer with employees at the workplace in question, within the meaning of Section 3 of the Act, is answered in the affirmative.

The record of this proceeding is clear and convincing that an employment relationship existed between respondent and Lee and Pratt and at least two other men. Respondent hired the men. Lee had worked on the Dry River Project for over a month, while Pratt apparently was hired and had commenced work on the day before he died. Respondent controlled the activities of these workers and, more specifically, he had the right of control over them. Lee and Pratt were assigned to and were working on [*43] the bore on Alden Street - the job Lavoy had subcontracted from County. They were using his equipment and their labors were accruing a financial gain to respondent in the form of a fee-based credit from County for each foot of bore completed.

Additional evidence of the fact that respondent exercised control over Lee and Pratt is contained in respondent's sworn statement of December 22, 1971 (Exh. C-11). In the sixth paragraph on page 1 of that statement, respondent, while denying that he had been told it was dangerous to work in the pit, affirmed that if he had been told "I would have pulled both men off the job".

The actions of the workers themselves adds further credence to the finding that they were employees of respondent. Employee, Roger Jones, while being carried on County's payroll, credited certain gasoline purchases to Empire (Finding of fact No. 15). Lee and Pratt on the fateful day of November 18, 1971, before proceeding to the construction site were at respondent's home and left one of their cars there. Lee's wife inquired of respondent where her husband was. Her inquiry was not directed to County. Pratt's presence on the workplace was known only to respondent [*44] - County was not aware of this fact until his body was discovered by Lavoy on November 22, 1971.

Most persuasive are the admissions made by respondent himself. Lavoy on two occasions when interviewed subsequent to the casualty acknowledged that the men were his employees. He admitted to Whiteside that he had employees and confirmed that the two deceased men worked for Empire (Tr. 265, 269-270). When interviewed by LaBounty, Lavoy stated that he had hired both men and that they worked for him (Tr. 103, 110, 122).

Conversely, there is no evidence in the record that County in any way, other than by having Lee on its payroll for the mutual benefit of both County and respondent, considered Lee its employee. County never had Pratt on its payroll. The record is uncontradicted that County in its payroll operations considered any worker hired by respondent to be his employee. Lee's payroll record contained a notation that Lee was Lavoy's employee. The payroll monies were being advanced on the undisputed basis that they would be debited from credits accruing to Lavoy as a subcontractor. Such debits even encompassed a deduction for any insurance premiums paid by County for workmen's [*45] compensation coverage for Lavoy's workers.

The defense advanced by respondent that Lee and Pratt were the employees of the general contractor is untenable and must be rejected. The fact that the subcontractor's employees wages were paid by the general contractor did not release the subcontractor from his responsibility for the exposed workmen. The authority of the subcontractor to direct and control the activities of the workers outweighed the fact that the workers' pay check came from another firm. Secretary v. Coggins & Sons, Inc., OSAHRC No. 2507 (April 8, 1974), 1 OSHC 3355.

The Review Commission, in its unanimous decision in Secretary v. Bayside Pipe Coaters, Inc., OSAHRC No. 1953 (September 20, 1974), has ruled that agreements between the general contractor and a subcontractor cannot insulate an employer from the mandate of this Act to protect his employees from work hazards. An employer cannot "contract away" his responsibility under the Act.

If an employer employs one or more persons on a regular basis, he is an "employer" for jurisdictional purposes under this Act. See 29 U.S.C. 652(c); also Secretary v. Elmer R. Vath, OSAHRC No. 773 (July [*46] 2, 1974) dissenting opinion, and cases cited thereon.

II.

JURISDICTION: BUSINESS AFFECTING COMMERCE

The other jurisdictional issue of whether respondent was engaged in a business affecting commerce within the meaning of Section 3 of the Act must also be answered affirmatively.

I am firmly convinced that the evidence of record reflects that the activities of respondent and the type of business in which he was engaged affected commerce within the intendment of the Act and therefore the Act was applicable to his business activities.

Sections 3(3) and 3(5) of the Act, which are applicable to this question, provide in pertinent part:

Sec. 3. For the purpose of this Act ---

* * *

(3) The term "commerce" means trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof, or between points in the same State but through a point outside thereof.

* * *

(5) The term "employer" means a person engaged in a business affecting commerce who has employees, ----.

The legal concept of what is meant by "a person engaged in a business affecting commerce" is a broad tent which is considerably less restrictive than the [*47] term "engaged in commerce" or "engaged in interstate commerce". The objective of Congress in enacting this legislation and the evils sort to be remedied must be given prime consideration. The Act specifically indicates that Congress intended to invest in the complainant the fullest jurisdictional breadth constitutionally permissible under the commerce clause. Congress plainly stated, in Section 2 of the Act, that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hinderence to, interstate commerce. It further declared its purpose and policy in enacting this legislation was to assure so far as possible, every working man and woman in the nation safe and healthful working conditions through the exercise of its power to regulate commerce among the States. The application of the Act was not made to depend upon the fortuitous circumstances that a particular employer is engaged in interstate commerce.

The determining factor under Section 3(5) is not whether an employer is engaged in commerce but whether its business affected commerce. The selection of the term "affecting commerce" in lieu of "engaged in" or some similar [*48] term is significant in the resolution of this issue. In Secretary v. Accu-Namics, Inc. OSAHRC No. 477, (October 25, 1972), n7 the trial Judge at pages 20 to 24 discussed this point in some depth and his discussion, as adopted by the Review Commission, is also adopted and found to be applicable herein. See also Secretary v. J.A Walder, Inc., 2 OSAHRC 881 (1973). The U.S. Court of Appeals for the Second Circuit in Brennan v. OSAHRC and John J. Gordan, Co., 492 F.2d 1027, 1030(1974), has held that the phrase "engaged in a business affecting commerce" is a phrase often used when Congress means to signal an intention to go beyond the regulation of business engaged "in commerce". In fact, as the Court noted:

". . . the Supreme Court (in construing essentially the same phrase in the National Labor Relations Act) has held that the Act goes well beyond persons who are themselves engaged in interstate or foreign commerce, NLRB v. Fainblatt, 306 U.S. 601, 604-605(1939); cf. NLRB v. Vulcan Forging Co., 188 F.2d 927, 930 (6 Cir. 1951); . . . ."

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n7 Reversed on other grounds by split decision of Review Commissioners, dated May 30, 1974.

[*49]

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It is my view, and I so find, that respondent during the period involved in this proceeding, considering the nature of the business in which he was engaged at the time, was in fact engaged in a business which affected commerce. The evidence presented clearly reveals that respondent's activities were such that he was doing subcontracting work for a construction company engaged in interestate commerce; that the Dry River Project involved the addition to a sewer system which took waste from business establishments; and that after treatment and conveyance through the sewer system the same was ultimately deposited in the Hudson River, a navigable waterway forming a partial boundry between the States of New York and New Jersey. n8 The boring work being performed was under railroad right-of-ways and highways. The construction contract under which respondent and his employees were paid was financed by federal funds. Finally, there is some evidence of record that respondent made out-of-state purchases and bought certain goods, such as petroleum products, from intrastate suppliers which could only have been [*50] supplied from interstate businesses.

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n8 cf. Secretary v. Cable Car Advertisers, Inc. OSAHRC Dockets No. 354 and 480 (December 7, 1973).

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It has been held that a respondent who supplied only labor for a construction project was engaged in a business affecting commerce. Secretary v. C & J Forming Contractors, OSAHRC No. 2213 (July 23, 1973). It has also been held that an employer who uses the mails, makes long distance telephone calls, and utilizes other instrumentalities of interstate commerce as a necessary part of its operations is engaged in a business affecting commerce. Secretary v. Brand Electric Co. and Pattillo Construction Co. Inc., 2 OSAHRC 38 (1972).

Accordingly, the Act is applicable to respondent herein.

III.

CITATION FOR WILLFUL VIOLATION OF 29 CFR 1926.55(a)

The complaint and pleadings filed herein alleged that the violations of Section 5(a)(2) of the Act occurred on or about November 22, 1971. The parties during the hearing stipulated that the date of death of [*51] the two employees was on November 18, 1971. It is clear from the proof adduced that if any violations did occur, they occurred prior to or on November 18, 1971. Complainant has made no motion to amend the pleadings to conform to the proof. This Judge, finding that such amendment is proper and is in no way prejudicial to the rights of respondent, now makes such amendment sua sponte. Rule 15(b) F.R.C.P.; see also Secretary v. Gerstner Electric, Inc., OSAHRC No. 997 (August 1, 1974).

The evidence adduced by complainant I have found is of such sufficiency to support a finding that on November 18, 1971, a violation of the Standard at 29 C.F.R. 1926.55(a) existed on the workplace in question. I am convinced that on the above date and at the stated construction site that the toxic substance identified as toluene existed in the steel casing and about the area of the excavation pit. The threshold limit value for this contaminant as set by the standard was exceeded and as a direct consequence respondent's employees, Lee and Pratt, were exposed to the dangerous fumes and were asphyxiated. In my specific findings of fact I have, in some detail, set forth the basis for this [*52] ultimate finding that this standard was violated.

I have also found that respondent received actual notice of the presence of the hazard of toluene in and about the excavation pit when respondent was telephoned by Jack Hoffman of County on or about November 15, 1971. Respondent in his sworn statement to the OSHA compliance officer denies that he was ever advised of the presence of the dangerous gas by Hoffman. The credibility of the witness Hoffman had to be determined as well as the credibility of the witness Wilson who first informed Hoffman of the condition existing on the construction project. In making the decision herein I have rejected the contention of respondent and have found that the testimony given by Wilson and Hoffman was honest, unbiased and to be of a most credible nature. To find otherwise would in effect be tantamount to holding that both of these witnesses lied for some inexplicable reason. There is nothing in the record to support such a view.

There is no doubt that toluene gas vapors and liquid were present on the construction site. There is also no doubt that the two men died of exposure to such dangerous substance. I am firmly convinced that respondent [*53] was given actual notice of the presence of this substance prior to November 18, 1971. It is worthy of note - although it consists of evidence of a circumstantial nature - that within a period of approximately two days after respondent was notified by Hoffman of the presence of gas on the construction site that his employee Lee purchased two dust masks. Lee had been working on the construction site since early October 1971, doing presumably the same work that he was doing prior to November 17, 1971. Whether dust maks were worn by respondent's employees prior to November 17, 1971, is not known and therefore no inference, for or against respondent, can or has been drawn by this Judge.

The deameanor of the witness Hoffman was frank and impressive. Under cross-examination his testimony was unshaken. Respondent by his failure to testify in his own behalf and to rely on his aforementioned sworn statement in evidence, deprived this Judge of the opportunity of observing respondent's demeanor and candor. Consequently, no evaluation of his credibility was possible.

Having made the above determination that respondent violated the Standard at 29 CFR 1926.55(a), the question is presented [*54] whether such violation constitutes a willful violation within the meaning of Section 17(a) of the Act. I have stated and do find that there is no evidence of record to support a willful violation as defined by the case law of the Review Commission and applicable herein.

The word "willful" is not defined in the Act and the legislative history gives no reference to the meaning of the term. What constitutes a willful violation of the Act has been passed upon in several cases decided by the Commission. I am of the opinion that the definition for "willful" set forth in the unanimous decision of the Review Commission in Secretary v. Intercounty Construction Corporation, OSAHRC No. 919 (December 19, 1973) is the guideline herein. It was stated:

"The Commission agrees that, in the context of this Act, a "willful" violation is properly defined as an act or admission which occurs consciously, intentionally, deliberately, or voluntarily as distinguished from accidentally."

or voluntary as distinguished from accidental, and it may be characterized as conduct marked by careless disregard" citing United States v. Illinois Cent. R.Co., 303 U.S. 239,243 (1928); also Hodgson v. Hyatt, 318 F. Supp. 290, 392 (N.D. Fla. 1970).

In those cases where the Commission has sustained a willful violation the evidence showed that the respondent had previously violated the same occupational and safety standard or a similar state standard.

From the evidence presented in this proceeding I firmly believe that Lavoy was not aware that the standard codified at 29 CFR 1926.55(a) existed on or before November 18, 1971, nor do I believe that at that period of time he had a deliberate intent to violate that specific standard (Finding of fact No. 43).

I am convinced however that respondent by virtue of the warning given to him by Hoffman on or about November 15, 1971, about the presence of toluene gas at the excavation pit on Alden Street was then on actual notice of the existence of a safety hazard to which his employees could be exposed. Thus, a serious violation of the cited standard existed on the place of employment. This violation is found to be serious [*56] since respondent knew, or should have known, that a substantial probability that death or serious physical harm could result from the condition which existed in his place of employment.

I find that the evidence presented, while not establishing a willful violation of Section 17(a) of the Act, does fulfill all of the requirements set forth in Section 17(k) for proving a serious violation. Accordingly, the citation for a willful violation should be and is changed to reflect a serious violation of Section 5(a)(2) of the Act and the pleadings should be and are amended to conform to the proof herein. The issues on this citation have been fully tried before this Judge and I find that there will be no prejudice to the respondent in making such an amendment.

APPROPRIATE PENALTY FOR SERIOUS VIOLATION OF 29 CFR 1926.55(a)

The citation for willful violation having been amended and reduced to a serious violation as stated above, the proposed penalty of $7,000.00 for the alleged willful violation must be vacated and an appropriate penalty assessed for the serious violation (Section [*57] 17(b)). In determining what would be an appropriate penalty for the serious violation of the cited standard the criteria of Section 17(j) of the Act must be considered and especially the gravity of the violation. The severity of the hazard herein is demonstrated by the fatalities. It is undisputed that two workers were exposed to the hazard on the construction site and that such exposure resulted in their deaths.

The record reflects that respondent had no history of previous violations; that he was a small employer having no more than four employees at one time; and that he did a gross business during the year prior to the violation of approximately $27,000.00 (Finding of fact No. 53). At the time of the assessing of the proposed penalty herein no adjustment was given to respondent for "good faith". The record does reflect however that subsequent to the violation that Lavoy cooperated with OSHA and the other civil and law enforcement authorities in their investigations of this accident (Finding of fact Nos. 50 and [*58] 51). Such cooperation is evidence of good faith on the part of the respondent and should be taken into consideration in arriving at an appropriate penalty.

I am of the opinion that the assessment of a penalty of $500.00 is reasonable and appropriate for this serious violation.

IV.

CITATION FOR SERIOUS VIOLATION OF 29 CFR 1926.20(b)(1) & (b)(2)

The evidence in support of this citation is sufficient to support a finding of a serious violation of the cited standards. The citation deals with general safety and health provisions and is concerned with accident prevention responsibilities. It is uncontradicted that respondent lacked a safety program covering his employees on the job site in question. Respondent admitted this fact to the compliance officer (Tr. 288). The failure to initiate any safety program, and if such program was initiated, to maintain it constitutes a violation of 29 CFR 1926.20(b)(1). It would appear from the evidence that respondent hired workers, assigned them to a [*59] job site on which he himself was not working, and left it to the employee to do the work without any basic concern for the initiating of safety practices. It is noted that Pratt was 19 years old and had been working on the construction site for only two days.

Respondent was advised on or about November 15, 1971, of the presence of a dangerous condition where his employees were working. Lavoy himself had been alerted to the fact that on the work site there was an odorous and inflammable substance present (Finding of fact No. 28). Armed with this actual knowledge it was the responsibility of the respondent to make frequent and regular inspections of the job site and to ascertain whether the materials and equipment furnished was sufficient and adequate not only to do the work involved but to protect the safety and health of the employees. The failure to properly use the air compressor on this work site is evidenced by the fact that when the bodies of the men were discovered in the steel casing that the air compressor was not working nor were air hoses present in the casing. The logical conclusion is that fresh air was not being pumped into the confined area of the pipe when both [*60] men were inside it.

The evidence shows that as a consequence of respondent's working on another construction project that Hoffman had difficulty contacting him for several days. The fact of Lavoy's non-presence on the Alden Street work site for several days before the casualty weighs heavily against him and supports the above citation. Respondent having been alerted that there was a dangerous condition on the work site should have made frequent inspections and not left the operation of the work site to a laborer such as Lee to perform the duties of a "foreman". It would serve no purpose in this decision to comment on the point whether Lee could be considered a "competent person designated by the employer" so as to satisfy the requirement of the Standard at 29 CFR 1926.20(b). The presence of Lee in the casing at a time when air hoses were not in the same casing pumping air therein speaks for itself.

The testimony of the compliance officer on the necessity for and the lack of a safety program on the construction site was straight forward and persuasive. Even under intense cross-examination his testimony remained forthright and fair. I find Whiteside's testimony to be most credible, [*61] especially in those areas where he recounted his discussions with respondent and the admissions made by Lavoy to him.

The remaining point for consideration concerning this citation is the appropriateness of the penalty proposed by the Secretary. After again considering the four criteria as required by Section 17(j) of the Act, and applying the same principals and views as previously discussed under point III herein, and particularly allowing an adjustment for the after-the-fact cooperation of respondent during the OSHA investigation, it is my view that the proposed civil penalty of $700.00 is not appropriate. I would modify the same to the sum of $500.00.

CITATION FOR SERIOUS VIOLATION OF 29 CFR 1926.103(a)(1) & (a)(2)

I have found that the evidence present of record fails to establish by the required preponderance of the credible evidence that respondent on November 18, 1971, separately and distinctly from any other violation herein, violated the above standards (Finding of fact No. 49). In reaching this determination a review of certain parts of the construction standards was necessary.

The above cited standards appeared under Subpart E of the construction standards [*62] under the heading "Personal Protective and Lifesaving Equipment". The standard at 29 CFR 1926.103(a) has the heading "General" and subparagraph (1) thereof expressly applied "in emergencies, or when controls required by subpart D of this part either fail or are inadequate ---". The question then was what "controls" where required by subpart D. Since subpart D is entitled "Occupational Health and Environmental Controlls" and noting the relationship between respiratory devices and the evidence herein of exposure to toluene gas, I presumed the reference had to be to those controls which might be set forth under 29 CFR 1926.55. In referring to subpart D and to 29 CFR 1926.55, subdivision (b) of that standard stated:

"(b) When engineering or administrative controls cannot be employed to reduce or eliminate the exposure, protective equipment, as required in Subpart E of this part, shall be used." (emphasis added)

I therefore concluded that the "controls" mentioned in the standard at 29 CFR 1926.55(b) were those contemplated by the language of 29 CFR 1926.103(a)(1) since both standards were inter-related and were complementary to each other. However, subdivision (b) of 29 [*63] CFR 1926.55 was not included in the citation for willful violation. It was also noted that on February 17, 1972, after the date of violation herein and prior to the date of issuance of the citation, that 29 CFR 1926.55(b) was amended by publication of a new subsection in the Federal Register, Vol. 37, No. 33.

As a consequence of the amendment to the standard at 29 CFR 1926.55(b) between the date of violation and the date of issuance of the citation, it is evident that neither the standard in existence on November 18, 1971, nor the same standard as amended, as it existed on April 4, 1972 could have been the subject of a citation against respondent. Whether this situation was actually considered by complainant is a matter of conjecture. However, I am convinced that the standards cited at 29 CFR 1926.103(a)(1) and (a)(2) are not applicable to the facts and evidence presented in this hearing. The latter standard makes reference to emergency situations or when other controls required by subpart D fail or are inadequate. The proof of record is absent such evidence. There was no proof that respondent was aware that any emergency existed or that any "controls" failed so that appropriate [*64] respiratory protection should have been provided. The compliance officer did testify that if respondent had provided air replacement in an amount of 200 parts per minute of fresh air, respondent would have taken positive steps to provide for the safety of his men (Tr. 340). This evidence was applicable to the other violations herein and was considered in reference to such violations.

The Review Commission has held that a regulation must give fair warning of precisely what conduct it prohibits. The evidence presented in this case as applicable to 29 CFR 1926.103(a)(1) and (a)(2) fails to meet that test. Were there more evidence in support of these standards it might have been possible to find that the violation should be merged into the serious violation of 29 CFR 1926.55(a). Lacking such evidence a determination must be made on this particular citation itself. The evidence of record is such that I must find that there is a failure of proof to support this serious citation and the proposed penalty assessed therefore must be vacated.

CONCLUSIONS OF LAW

1. Respondent, [*65] Corbin Lavoy, doing business under the firm name and style of Empire Boring Company, at all times pertinent to this proceeding, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. Respondent, at all times pertinent hereto, was subject to the requirements of the Act, including Section 5(a)(2), and the occupational safety and health standards promulgated thereunder.

3. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein.

4. The date of any violation found herein is November 18, 1971, and not on or about November 22, 1971. The citations and complaint should be amended accordingly to conform the pleadings to the proof.

5. On November 18, 1971, respondent was not in willful violation of construction standard 29 CFR 1926.55(a), out was in serious violation of said construction standard 29 CFR 1926.55(a). The citation for willful violation issued on April 4, 1972, and the complaint filed in support thereto, should be amended accordingly to conform the citation and the pleadings to the proof. The proposed penalty of $7,000.00 assessed for the alleged willful violation [*66] should be vacated. The assessment of a penalty of $500.00 for such serious violation is deemed appropriate.

6. Respondent, on November 18, 1971, was in serious violation of the standards codified as 29 CFR 1926.20(b)(1) and (b)(2) as alleged in citation No. 1 herein issued on April 4, 1972. The assessment of a penalty of $700.00 for the violation set forth in this citation is inappropriate and should be modified to $500.00.

7. Respondent, on November 18, 1971, was not in serious violation of the standards codified as 29 CFR 1926.103(a)(1) and (a)(2) as alleged in citation No. 2 herein and such citation and the proposed penalty of $700.00 assessed therefore should be vacated.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, and upon the entire record of this proceeding, it is ORDERED that:

1. The citations and complaint filed herein are amended to conform the pleadings to the proof to reflect that the date of any violation found herein is November 18, 1971.

2. The citation for willful violation of 29 CFR 1926.55(a) and the complaint filed herein are amended by substituting a citation for serious violation of 29 CFR 1926.55(a), thereby conforming [*67] the pleadings to the proof.

3. The citation, as amended, for a serious violation of 29 CFR 1926.55(a) is affirmed and a penalty of $500.00 is assessed for such serious violation. The Notification of Proposed Penalty assessing a proposed penalty of $7,000.00 for the willful violation of 29 CFR 1926.55(a) is vacated.

4. The citation herein charging a serious violation of 29 CFR 1926.20(b)(1) and (b)(2) is affirmed; and the proposed penalty assessed therefore in the Notification of Proposed Penalty is modified to the sum of $500.00.

5. The citation herein charging a serious violation of 29 CFR 1926.103(a)(1) and (a)(2), and the proposed penalty of $700.00 assessed therefore, is vacated.

JAMES P. O'CONNELL, JUDGE, OSAHRC

Dated: Nov. 22, 1974, New York, New York