STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by Santa Fe Aggregates, Inc. [Employer] makes the following decision after reconsideration.

JURISDICTION

On January 19, 2000, a representative of the Division of Occupational Safety and Health (Division) conducted an annual mandated inspection at a place of employment maintained by Employer at 11300 Yosemite Boulevard, Waterford, California (the site). On January 27, 2000, the Division issued Employer a citation alleging a general violation of section1 7040 [fixed ladder with excessive step-across distance], with a proposed civil penalty of $75.

Employer filed a timely appeal contesting the citation on all available grounds. Prior to hearing, Employer moved without objection to amend its appeal to waive all issues and defenses except the existence of the alleged violation.

On October 20, 2000, a hearing was held before Manuel M. Melgoza, Administrative Law Judge (ALJ), in Stockton, California. Robert D. Peterson, Attorney, represented Employer. Gerald R. Fulghum, Senior Engineer, Mining and Tunneling, represented the Division.

On October 31, 2000, the ALJ issued a decision denying Employer's appeal.

On November 17, 2000, Employer filed a petition for reconsideration. On December 15, 2000, the Division filed an answer. The Board granted Employer’s petition on December 29, 2000.

EVIDENCE

The Division’s Associate Safety Engineer, Ned F. McDougald (McDougald), testified that he toured the site after an opening conference with Employer’s representatives. He observed a conveyor system between a "pit" area and the plant. In the plant area at the end of the conveyor system was equipment called a "feeder." For the plant operators to get to the feeder equipment, they had to travel through a tunnel, which was essentially a large metal culvert pipe filled with a dirt surface along its bottom. The feeder equipment was at the back of the tunnel, which inclined, in a ramp-like fashion until it reached the feeder equipment.
At the entrance to the tunnel (culvert), McDougald saw a metal ladder bolted to the bottom end edge of the culvert that extended downward to the ground. According to McDougald, any person using the ladder must step from the top tread (rung) of the ladder onto the dirt floor in the tunnel, which led through the tunnel to the feeder equipment.

McDougald took measurements in the presence of a management representative, which indicated the step-across distance from the ladder's nearest edge to the culvert was 14 inches. McDougald asked Employer’s representative about the ladder. An employer representative told him the Federal Mining Safety and Health Administration (MSHA) had directed Employer to install a ladder there to provide employees with access to the back of the tunnel, and Employer had complied. McDougald explained the step-across distance requirement and indicated to the employer representative the ladder’s distance deficiency.

McDougald stated he did not see workers using the ladder, nor did he ask anyone if the ladder was actually used. When he arrived at the mining site, the plant was not operating. He acknowledged that the ladder was not the only way to access the tunnel leading to the feeder. McDougald did not use the ladder during the tour, choosing instead to walk up the dirt ramp.

McDougald testified there were indications that the ladder had been used and was available for use by employees. One of the ladder's grab-rails showed signs of repeated use. There were electrical and oxyacetylene lines strewn from the tunnel's entrance leading to the feeder. A utility truck from which some lines emanated was parked adjacent to the tunnel's entrance.

Prior to leaving the site, McDougald stated that he noticed that the plant was operating. McDougald saw Employer's operators at the site and spoke to them, although he could not recall if he saw them or other employees at the feeder station. However, an employee was required to be at the feeder in order for the plant to operate. He saw no signs, barricades, or other indications either precluding or prohibiting anyone from using the ladder.

McDougald testified that, at the exit conference when the violation was further discussed, Employer did not claim that no one used the ladder. Based upon the above-described facts, McDougald concluded that employees used the ladder and that the ladder was available for them to use on the inspection date.

Employer called no witnesses in its defense. It, however, argued that the Division’s evidence failed to establish employee exposure to the hazard.

ISSUE

Does the evidence establish “Employee Exposure” to a hazard consisting of an excessive step-across distance for a fixed ladder in violation of section 7040?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Mine Safety Orders contain a provision for ladders in section 7040, which states:

Ladders used in surface operations shall be constructed, installed, and maintained in conformance with provisions of the General Industry Safety Orders.

The General Industry Safety Orders provide requirements for fixed ladders in section 3277 which include the following:

(b) Definitions.
...
Fixed ladder. A fixed ladder is a ladder permanently attached to a structure, building, or equipment. Ladders referred to in this code shall be construed to be fixed ladders.
...
(f) Clearance.
...
(6) The step-across distance from the nearest edge of ladder to the nearest edge of equipment or structure shall be not more than 12 inches, or less than 2½ inches.

Employer did not challenge the applicability of section 3277(f)(6) nor contest the Division’s determination that the step-across distance was in excess of the limit prescribed in section 3277(f)(6).2 Rather, Employer maintains that the Division failed to establish by evidence that there was actual employee exposure to the hazard established by the excessive step-across distance in order to sustain a violation of a safety order. In our independent review of the record, we must review both the evidence and findings of fact to determine whether the findings support a determination of employee exposure to the established hazardous condition.

The Division has the burden of proving that there was employee exposure to a violative condition addressed by a safety order. See, Moran Constructors, Inc., Cal/OSHA App. 74-381, Decision After Reconsideration (Jan. 28, 1975). To find “exposure” there must be reliable proof that employees are endangered by an existing hazardous condition or circumstance. Huber, Hunt & Nichols, Inc., Cal/OSHA App. 75-1182, Decision After Reconsideration (July 26, 1977) (italics in original). Direct evidence is not necessary to prove employee exposure but may be proved by indirect evidence demonstrating that employee exposure is more likely than not. C.A. Rasmussen, Inc., Cal/OSHA App. 96-3953, Decision After Reconsideration (Sept. 26, 2001), citing Truestone Block, Inc., Cal/OSHA App. 82-1280, Decision After Reconsideration (Nov. 27, 1985).3 “There must be some evidence that employees came within the zone of danger while performing work related duties, pursuing personal activities during work, or employing normal means of ingress and egress to their work stations.” Nicholson-Brown, Inc., Cal/OSHA App. 77-024, Decision After Reconsideration (Dec. 20, 1979) (italics added).

Indirect or circumstantial evidence may support an inference of employee exposure such as the location of the hazardous equipment in an active workplace rendering it capable of being used and available for use by employees. Kaiser Steel Corporation, Cal/OSHA App. 75-1135 Decision After Reconsideration (June 21, 1982) (employee exposure inferred from evidence regarding use of sledge hammer with splintered handle, rattail files with no handles, and defective ladder.) 4

In Kaiser, supra, employee use of defective equipment was inferred from the evidence presented where there was no observation of use of hazardous equipment by a witness. The location of the defective equipment (sledge hammer) in an area with other hand tools used by employees and in an active workplace was sufficient to establish employee use. Evidence supporting employee use of a rattail file, and that rattail files without handles were available for use, defeated the employer’s argument that the Division failed to show that the handle was not attached when the rattail file was used. And finally, evidence of footprints at the bottom of a portable ladder, dirt and grease on the ladder rungs, location of the ladder, and the requirement to gain access to a storage area to which the ladder led supported the finding that the ladder was used by employees.

Similarly, in George L. Lively, Cal/OSHA App. 98-088 Decision After Reconsideration (Apr. 28, 1999), the inspector’s observation of a table saw blade with no guard and his observation of sawdust beneath the blade supported a logical and reasonable inference that an employee used the unguarded saw.

The evidence presented in this case similarly compels a finding that the Division met its burden of proving employee exposure to the hazardous condition. The Division’s witness testified that, although he did not observe any employees using the ladder, the ladder at the edge of the tunnel (culvert) provided access to the tunnel that led to feeder equipment at the other end of the tunnel. An operator was required to be at the feeder when the plant operated and the tunnel was the only access to the feeder equipment. A reasonable inference from these facts is that the ladder was an established normal means of ingress to and egress from the feeder equipment which required an operator at that location when the plant was running. Further, the fact that the plant was operating by the time the inspector was preparing to leave the site supports an inference that an employee was exposed to the hazard on the date of inspection.

McDougald testified that one of the grab rails of the ladder was worn and showed signs of repeated use. McDougald further stated that there were electrical and oxyacetylene lines extending from a utility truck parked adjacent to the tunnel entrance and strewn along side the ladder and into the tunnel along the dirt floor leading to the feeder equipment at the other end of the tunnel. This suggests to us that employees worked at the ladder location and more likely than not used the ladder to access the tunnel in order to run the lines from the utility truck through the tunnel. Further, McDougald did not observe any posted signs or other indications precluding or prohibiting an employee from using the ladder. In addition to the fact that the tunnel was the only access to the feeder equipment, these facts support a finding that the ladder providing access to the tunnel entrance was an active work area.

The above-described facts make it “more likely than not” that employees were exposed to the hazardous condition in an active work area at the plant site on the inspection date. In addition, two photographs were received into evidence which corroborated the testimony regarding the ladder’s location bolted to the tunnel, the wear on the grab rail, and the electrical and oxyacetylene lines strewn alongside the ladder and going into the tunnel.

Additional evidence further supports a finding of employee exposure. At the time of inspection of the ladder, Employer’s representative told McDougald that Employer was directed to install the ladder by the Federal Mine Safety and Health Administration to provide employee access to the tunnel and Employer complied with the directive by installing the subject ladder. This testimony, although hearsay, corroborates the other evidence discussed above and further establishes that the ladder was installed for the purpose of employee access to the tunnel and was certainly available for use.

We find that the Division presented sufficient evidence to establish employee exposure to the ladder’s excessive step-across distance in violation of section 7040.

Employer attempts to defeat the finding of employee exposure by asserting that the evidence established the existence of an alternative method of accessing the tunnel by using the dirt ramp that inclined toward the tunnel’s entrance. The inspector testified that he, in fact, walked up the sloped dirt ramp during his inspection of the site and did not use the ladder to access the tunnel.

The fact that there was an alternative access to the tunnel does not dispositively negate that the ladder-installed for the purpose of employee access to the tunnel, was not used by employees, nor does it disprove that the ladder was unavailable for use. It was uncontroverted that the tunnel was the only access to the feeder and that employees working at the feeder during operation of the plant would have to enter the tunnel. In this regard, it is significant that Employer offered no witness testimony or other evidence to rebut the Division’s circumstantial evidence of employee use of the ladder as a means of access to the tunnel entrance and feeder equipment.5

Absent contrary evidence presented by Employer showing that employees only used the sloped dirt ramp for access to the tunnel, there was no evidence presented to support the finding which Employer attempted to prove solely by suggestion and argument.6 The only evidence presented supports an inference of employee use of the ladder.

In addition, during the exit conference with Employer’s representatives when the violation was further discussed, Employer did not deny that employees used the ladder. In determining what inferences to draw from evidence against a party, a trier of fact may consider, among other things, the party’s failure to explain or deny such evidence or facts by his testimony in the case against him. (Evidence Code §413) Under the circumstances here, if the ladder was in fact not used by employees, it would be most reasonable for Employer to assert that employees did not use the ladder, i.e., deny that the ladder was used by employees, either at the time of the discussion of the violation at the exit interview or through testimony at the hearing. Since there was no such explanation or denial by testimony from the Employer, we believe that this failure further supports a reasonable inference that employees used the ladder.

Based upon our review of the evidence in its entirety, the Division established employee exposure to the hazardous condition resulting from the established violation of the step-across distance for the fixed ladder installed at the tunnel entrance.

DECISION AFTER RECONSIDERATION

Employer’s appeal is denied. A general violation of section 7040 is affirmed and a civil penalty of $75 is assessed.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 13, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Employer expressly adopted and incorporated into its petition the portion of the ALJ’s Decision entitled “Summary of Evidence.”
3 This language is consistent with the “proof by a preponderance of the evidence” standard. “Preponderance of the evidence” is usually defined in terms of probability of truth, or of evidence that when weighed with that opposed to it, has more convincing force and greater probability of truth with consideration of both direct and circumstantial evidence and all reasonable inferences to be drawn from both kinds of evidence. Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483, review denied.
4 Contrary to Employer’s depiction, the ALJ’s Decision was not based upon “a mere opportunity” for exposure. Actual exposure can be proven by evidence which tends to establish employee use by reasonable inferences from presented evidence.
5 Employer called no witnesses, choosing to present its position through cross-examination of the Division’s witness.
6 In its petition, Employer questions the credibility of McDougald’s testimony. However, we will not disturb credibility determinations made by the ALJ regarding the matters asserted by Employer challenging McDougald’s testimony. The ALJ was present during the taking of testimony and was able to directly observe and gauge the demeanor of the witness and weigh his statement in light of his manner on the stand. (Garza v. Workmen’s Compensation Appeals Board (1970) 3 Cal.3d 312, 318; Metro-Young Construction Company, Cal/OSHA App. 80-315, Decision After Reconsideration (Apr. 23, 1981).)