BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

BUD OF CALIFORNIA
32655 Camphora Gloria Road
Soledad, CA 93960

 

                              Employer

 

Employer Docket No.

01-R4D5-2068

 

DENIAL OF PETITION

FOR RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code hereby denies the petition for reconsideration filed in the above-entitled matter by Bud of California (Employer).

JURISDICTION

On March 15, 2001, a representative of the Division of Occupational Safety and Health (the Division) conducted an agricultural safety and health inspection at a place of employment maintained by Employer at Pleasant Valley Road/Airport Way, Camarillo, California (the site).

On May 4, 2001, the Division cited Employer for an alleged general violation of section 3457(c)(3)(G)(2) [hand washing facility not refilled] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal contesting the existence of the alleged violation and the reasonableness of the proposed civil penalty.

A hearing was held before Jack L. Hesson, Administrative Law Judge (ALJ) of the Board on March 6, 2002. Alfonso Orozco, Safety Manager, represented Employer. Andreea Minea, District Manager, represented the Division.

On June 25, 2002, the ALJ issued a decision affirming the violation. Employer filed a timely petition for reconsideration.

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer was cited under section 3457(c)(3)(G)(2), which reads as follows:

Handwashing facilities shall be refilled with potable water as necessary to ensure an adequate supply.

To establish a violation of section 3457(c)(3)(G)(2) it was incumbent upon the Division to prove by a preponderance of the evidence that Employer did not refill its hand washing facility to ensure an adequate supply of potable water. The ALJ found that Inspector Vargas offered credible testimony that the supply of hand-washing water was not adequate, and that no water would flow from the drum at the time of his inspection. Employer offered only hearsay evidence that the water had leaked out in the hour before the inspection while the ALJ found that Vargas provided credible testimony that the drum was on level ground and that the soil was not wet around the drum.

Employer contends that the evidence does not support the findings of fact and that it has discovered new material evidence that could not have, with reasonable diligence, been produced at the hearing.

Employer reargues the evidence presented at the hearing, contending:

The release valve of the container is on the lower part of the container, it is about half an inch from the bottom. The container has 2 inches of water but because of the unevenness of the ground where the pickup was located it moved those 2 inches of water towards the opposite side of the release valve. The portable toilet was on even ground, but the front tires of the pickup were on a row causing the backside of the pickup to be lower. This caused the hitch of the portable toilet to tilt downward so the backside was higher than the front side. The release valve was located at the backside of the drum, once the pickup was moved to even ground there was a good flow of water coming out of the release valve.

A petition for reconsideration will be granted if an employer demonstrates that the evidence does not support the ALJ’s findings of fact. Simply rearguing the evidence does not meet the requirements set forth in section 390.1(a)(3).

We give great weight to the credibility findings of the ALJ who heard the case to the effect that the drum of the portable toilet was on level ground and the soil was not wet around the drum. Absent a showing of substantial evidence to the contrary, we will not disturb the factual findings of the ALJ. After reviewing the record, we adopt those findings and concur with the ALJ that the supply of hand-washing water was not adequate and that no water could flow from the drum at the time of the inspection.

Employer also submits pictures of an alleged similar unit contending:

From the time of the audit to the hearing we were in the process of eliminating the type of portable toilets that was inspected, so we were unable to locate the portable toilet that was inspected. After the hearing we located one in Gonzalez, California that was similar to the one that was inspected. Pictures of the portable toilet are attached along with the location of the water tubing that is about half an inch from the bottom of the 15-gallon container.

We are not persuaded by Employer’s contentions. Employer had over ten months to locate a portable toilet like the one in issue prior to the hearing if it felt the evidence was critical to the presentation of its case. A petition for reconsideration may be based on new material evidence only where the petitioner could not, with reasonable diligence, have discovered and produced such evidence at the hearing. (§390.1(a)(4)) We find that Employer failed to establish that it could not, with reasonable diligence, have obtained the “new evidence” or otherwise produced the photos at the hearing. We also feel that the proffered evidence could not change the outcome of the case.

DECISION

The Board affirms the ALJ’s decision and the assessment of a $750 civil penalty.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 10, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.